Ni act.
Suresh Babu Rai
(Querist) 03 September 2013
This query is : Resolved
Respected Members!
X has owed some amount as hand loan from my client and in discharge of his liability, said X has issued a cheque for the said amount of hand loan.
1. My client has presented the cheque bearing No.569639, dated 29.11.2010 as stated above in to the credit of his account and his banker returned the same for the reason of insufficient funds(as mentioned in the Memo through the realization bank of X) in the account of X to honor the cheque bearing No.569639. Soon after receipt of the said return memos, my client has issued a legal notice to the X demanding to repay the cheque amount with in time stipulated as contemplated in the Act.
2. X received the legal notices but neither has paid the amount as demanded nor has replied for the same kept quite. My client preferred to prosecute the X and got filed a complaint under the Provisions of NI Act. X has engaged a counsel and during the course of cross examination of my client as PW-1 the above cheque is marked as Ex. P1 and the Memo issued by the banker of my client as Ex. P2 and the Memo issued by the realization bank is Ex. P3 remaining such as O/c of Legal Notice, Ack’s as P4 and P5. The Cross Examination done by the defense counsel as follows (Important points):
“It is not true to suggest that the Cheque was issued by the accused (X) as the security towards payment of money. Ex.P1 issued by the accused to me. It is true I have mentioned in my petition, legal notice and in my chief affidavit about Ex.P1 cheque i.e. cheque bearing No.569639. It is not true to suggest that I have not issued any legal notice and did no filed the petition in respect of Ex.P1 Cheque. It is not true to suggest that I have not presented Ex.P1 cheque in the bank and that my Banker has not given me cheque return memo in respect of Ex.P1. It is not true to suggest that I have not mentioned in petition, legal notice and in chief affidavit as to when I presented the Ex.P1 cheque in the Bank. It is not true to suggest that the accused did not instruct to me to fill Ex.P1. The witness adds that the accused instructed me to fill Ex.P1 at his residence. It is not true to suggest that the contents of Ex.P1 were filled at different times. It is not true to suggest that the contents of Ex.P1 were filled at gap of two years. It is not true to suggest that the accused lost Ex.P1 cheque three years prior to filing of the case and same was found by me. I got filled the contents of Ex.P1 and filed the present case”.
Soon after cross examination of my client as PW-1, I have obtained the certified copies of Exhibits for supervisions and those are:
The realization of bank of X in their return Memo (Exhibit P3) wrongly mentioned the Cheque number as 969639 instead of 569639.
Basing on the Memo issued (Ex. P3 as stated above) even I also mentioned the cheque number as 969639 instead of 569639 in the legal notice. The same number i.e. 969639 is mentioned in the complaint wrongly, the banker of my client has correctly mentioned the cheque number in Ex.P2 as 569639.
Sir! What would be the fate of the above mistake and what should I do to correct the typographical mistake done by the typist. Is it necessary to call the Manager as PW-2, who issued the Exhibit P3 in support of my claim? Or can I file a petition to correct the mistake in the legal notice, complaint and in the Chief examination of PW-1 by way of affidavit (In fact I don’t know whether there is any provision in the NI Act)? Of course it is purely due to my negligence and blindly depending on Ex.P3, but I have no right to cause my client with inconvenience. Please guide me!!
Thank you one and all!!!
ajay sethi
(Expert) 03 September 2013
you can examine bank manager . he can clarify that inadvertently cheque number has been wrongly mentioned in bank return memo .
if 3 years have not passed since issuance of cheque better file a summary suit .
DEFENSE ADVOCATE.-firmaction@g
(Expert) 03 September 2013
1) Now the die is case so you can not be allowed to recall bank manager to correct the mistake.
2) Cross is rare expertise and it seems defense has not properly exploited it.
3) Only FIVE questions were sufficient to demolish the case of complainant.
THE PROBABLE QUESTIONS ARE DETAILED BELOW.
a) Whether you received any intimation for return of cheque no...( real no) and
b) Have you produced any bank slips for return of cheque no-------.
b) Have you issued any notice for return of cheque no...... to accused.
c) You have given any pleading in the complaint for return of cheque no... in the complaint.
d) And did you mention in your affidavit about the return of cheque no...
AND
D)Whether your complaint is at all related in any manner whatsoever for return of cheque no....
THAT ALL YOUR HONOUR--TO THE COURT.
Far all these questions the complainant has to say NO and that decides the case.
So in the present case what ever lower court may do, it will not stand in revision.
Rajendra K Goyal
(Expert) 03 September 2013
Well advised by the experts, nothing more to add.
Suresh Babu Rai
(Querist) 04 September 2013
Thank You one and all!
According to Sethi sir, I have to file a petition calling the Bank Manager of X Bank, who issued Ex.P3 and as per their records he has to give evidence that due to inadvertence or typographical mistake, the cheque number was wrongly mentioned Ex.P3.
Even the cross examination done by the defense counsel does not vitiate my case as he is agreeing that the Ex.P1 is lost by the accused and the complaint misused the same and got filed the case. But, How can I rectify the correct cheque number in the main case. Whether there is any such provision to amend the complaint.
Suresh Babu Rai
(Querist) 05 September 2013
Thank You! Rohan Jee for calling me!!
But I could not find 'BC Vol.1, Page.122, 2010 (Pandit Gorelal VS Rahul Panjabu) Rohan Sir asked me to once follow the citation as it will be more helpful for me in conducting further trail of my case. I will be thankful to Roahan jee in responding for quiry and guiding me!!
