138 ni act false implication
R S TOOR
(Querist) 25 August 2012
This query is : Resolved
As per Judgement in my case:- Paragraphs 2, Complainant financially helped the accused from 21-6-04 to January, 2006 from time to time by lending money.
Now read his own statement compare the dates Year & Amount, Paragraph 8:- Complainant has advanced him Rs.3,25,000/- in the month of June, 2004 A payment of Rs.2,25,500/- out of this amount was made by way of cheque and remaining amount was paid in cash on same day. The complainant advanced rupees one lac in the month of September, 2004 at his residence and another sum of Rs.1,50,000/- in the first week of January, 2005.
Page 13 As per the version of complainant, he has advanced a sum of Rs.5,75,500/- from June, 2004 upto first week of January, 2005 in installments. When during cross examination, he was inquired about the details of payments made to accused, he stated that he has given payment in June 2004 of Rs.3,25,500/- out of which Rs.2,25,500/- was given by way of cheque, Rs.1,00,000/- in the month of September, 2004 and Rs.1,50,000/- in January, 2005.
Paragraphs:- 2 Accused issued cheque in question as post dated in January, 2005. Cheque was not presented on its due date as in the last week of August, 2006, wife of accused has requested not to present the cheque for next five months. complainant presented the cheque for encasement only on 5-2-07 but it was received back dishonoured along with cheque returning memo bearing the remarks of payment stopped by drawer. Thereafter, complainant got served legal notice dated 13-2-2007 demanding the payment of cheque amount on the accused, through registered and ordinary post. Despite being served, the accused failed to repay the cheque amount, hence instant complaint On the basis of preliminary evidence led by complainant, the accused was summoned to face trial for offence punishable under Section 138 of Negotiable Instruments Act. 4. On appearance in the Court, accused On appearance in the Court, accused was served notice of accusation for offence punishable under Section 138 of Negotiable Instruments Act to which he pleaded not guilty and claimed trial.
Respected Seniors, I wish to state that my opposition party professionally a lawyer, as I heard and read so many times that judgements are made based on evidence so there is no evidence that my wife spoke to him for such extension merely he is misleading & taken wrong plea just a matter of harassing me to garb my property. He admitted cheque was given in Jan 2005, Could you please Comments & observe that base of the case prove to be untrue.
Thank & Best Regards to all of you.
R S TOOR
(Querist) 25 August 2012
After having received the last installment
of rupees one lac in Janaury, 2005 accused settled the
account with the complainant and in discharge of his
liability, issued the cheque in question after
including interest at the rate of 13% per annum. The
cheque was given as post dated cheque to be presented
on 2.9.2006
R S TOOR
(Querist) 25 August 2012
It has also been argued that during cross examination, the complainant has given a contradictory statement as in his complaint he has stated that loan of Rs.7,05,000/- was given whereas in his cross examination he stated that loan of Rs.5,75,500/- was given and remaining amount was of interest. Since the complainant is not having any license to recover interest, his claim as to interest on this amount is alleged to be not legally sustainable.
Dear Experts, you may look at complainant plea that rest of the money was given, Now even if assumed that interest was charged but no detail transactions from so and so date int. shall be that much as transaction s happened on various dates so Int. shall also be applicable on the date loan given. but no details were provided it is stated after adding 13% Interest, could you please advise. Tnx & Rgds
THANKACHAN V P
(Expert) 26 August 2012
On plain reading ,the complaint is not maintainable .but we cannot give correct advice without getting clarification on following points .
1. Was it a blank cheque without writing the amount and date . If date was written specify date .
2. When did the cheque presented before bank
3.when did he send legal notice demanding the money
4.whether he has sent more than one notice .if so specify the dates
5.when did the complaint was filed .
If you give correct answer to the above questions , we can say whether the complaint is legally maintainable.I do not want make any comments on the factual aspects of the case
R S TOOR
(Querist) 27 August 2012
Thankachan Jee,
Thank you, for your interest in my case guide me appropriately to overcome & handle upcoming issues.
1 Cheque was blank and no date, no amount was written on it.
2 cheque was presented to bank on 05/02/2007
3 Fact of the matter I have never been served any Legal notice as i reside in Ghana (West Africa) but I was told by brother that some Lawyer notice has come to our home town however date prescribed is 13/02/2007
4 No there was only single notice no any other notice was served.
By the time I got to know he has proceeded with the case and issue bailable warrant for my arrest, again I was told by my mother that court people and police in civil dress come to my home town to serve notice notice, my opposition says it was received by my Old & illiterate mother while taking Thumb Impression but mother denied she never put thumb impression on the notice. I also did not bother to verify whether summons served to my old mother were genuinely served or not. My mother died on 22nd May 2012.
5 Complaint was filed on 24-02-2007
Thankachan jee, i have already been acquitted from the case in May 2012 and currently he has filed Appeal in Session Court Chandigarh District court.
Hope all question raised by your good selves has been answered in order to reach on a decision.
Tnx & Best Rgds/ RS TOOR
ajay sethi
(Expert) 27 August 2012
blank cheque is no cheque . if date , amounts arre blank and filled in by the complainant without any autrhoisation no case under section 138 Ni is maintanable
R S TOOR
(Querist) 27 August 2012
Sethi Sahib,
Thank you for the information.
Please do go through the last Paragraph of my Judgement.
While hearing the arguments, this Court enquired about the writing of the body of the cheque to which complainant replied that it was not filled in his presence, whereas accused aptly agreed to sending the cheque to Forensic Science Laboratory for its
examination. Though this fact does not infers that body of cheque was filled up by complainant or some other person at his instance without authority but it clearly infers that except signatures, the complainant has not been able to prove the contents of the cheque. Hence, from the discussion above this Court is of the view that the complainant has failed to bring home the guilt of the accused for the offence punishable under Section 138 of Negotiable Instruments Act. Accordingly, the accused is hereby acquitted and his surety stand discharged. File be consigned to the record room.
THANKACHAN V P
(Expert) 27 August 2012
As you have already acquitted by the trial court you need not be worried about the appeal .No appeal will lie before the sessions court against acquittal . He has to approach highcourt for appeal . If possible send me trial court judgement .
R S TOOR
(Querist) 29 August 2012
Thankachan Jee,
Thank you for the guidelines, meanwhile I have sent you PM message regarding the judgment pls view and give your valued comments.
Thank you
THANKACHAN V P
(Expert) 29 August 2012
Ok i am busy for three days. I shall send you detailed reply after Friday
