Rarest of rare case under S.138 Negotiable instrument act
Jitendra Raval
(Querist) 21 March 2009
This query is : Resolved
The complained in filed by a wife against husband during the currency of the marriage. No divorce petition filed till the date. The facts of the matter are as under:
01 It is not mentioned in the complaint that the accused is the husband of the complainant. It is mentioned that, the monetary transaction took place in a friendship as both of them working in a Bank.
02 It is mentioned that, complainant deposited Rs. 2 lacs in accused account who was transferred to Delhi when transaction took place and related ‘Pay in slip’ is also filed in by the complainant. During the transaction the relation between the two was at pick. She requested husband that let us have joint fixed deposit in the bank for the entire amount. The amount was the sell proceed of a house which she acquired from her ex-husband.(Main intension was to escaspe from the tax liablility by transfering the amount without knowlodge of accused).Accordingly husband kept the amount in Fixed Deposit account. Operating instruction was either and Survivor. The account opening form was singed by both.
03 After transfer to Delhi husband handed over three blank cheques to wife as insurance premium was due immediate to his transfer. But on due date wife told that the cheques are misplaced and hence husband made the arrangement from payment from different account and hence cheque remained with the complainant.
04 After sometime when wife was in need of money husband remitted Rs. 1.20 lacs out of Rs. 2 lacs to wife through Demand Draft. This fact also not mentioned in the complaint.
05 Once relation between the two spoiled, the wife deposited two cheque out of three blank cheque in the bank for Rs. 2 lacs towards principle and Rs. 42000 towards interest in the bank which returned unpaid without any knowledge to the accused as the account was dormant since long.
06. First notice served but address was written in Gujarati Language and hence could not reach to accused. But no action was taken by complainant without any reason.
07 After few days, she deposited third cheque which was returned unpaid. On this basis notice was served and once again address was written in Gujarati language including numbers pin code flat number etc.
08 The husband came to know about such return of cheque when he received court summon. Since husband had not received any notice or intimation, he filed complaint the local post office about the non receipt of Register post. After inquiry by the post office official, replied that, Since the address was written in Gujarati language the postman given the intimation in flat no C-103 instead of C-703 and hence remain unclaimed and returned to the sender.
Considering above facts of the case, I request my seniors and experts to offer their comments on following aspects.
01 Whether it will be treated as ‘Business Transaction’ Or transaction in a ‘Relation’
02 Whether it will be treated as ‘Consideration passed to the accused’
03 After confirmation by the post office that, it is not delivered to the accused whether it will be termed as ‘Notice served’ to the accused keeping in light of General clause Act 27?
04 What about two notices served? The case will be based on first notice or second. The date of filing the suit is after 60 days of returned of 1st cheques. The cause of action will start after 1st notice or 2nd notice? If we consider 1st then, the suit will be treated time barred.
05. The complainant has submitted only statement of account of the accused account which she get from the bank as a proof of debt.
06 Whether it will be termed as ‘Legally enforceable Debit’?
07. The wife has not given in writing that cheques in quetion were misplaced. It was oral communication between husband and wife.
08 Can accused approach High court for quashing the criminal complaint? If so what grounds?
09. Can accused file a complaint before Hon.Megistrate under CrPc 156(3) and demand police investigation and crminal case again
PALNITKAR V.V.
(Expert) 22 March 2009
Please tell whether the wife informed it in writing that the cheques were misplaced. Is it mentioned in writing by the husband in reply that he was making the alternate arrangement as the cheques were misplaced. This is very important.
PARVEEN DEEPAK ARYA
(Expert) 23 March 2009
The complaint will be positively dismissed . the transanction is not a bussiness transanction. it is among husband and wife. Rs. 2 lac paid to the husband were converted in to fixed deposits in the joint name and the direction of either or survivor amounts to return of the money.More over the repayment of Rs. 1.20 lac is a bar to submit the cheque of rs. 2 lac by wife. the notice will not be treated as notice served. more over the complaint is time barred qua the earlier notices . this concealment of facts by the wife may cause to face her the wrath of the law
RAKHI BUDHIRAJA ADVOCATE
(Expert) 23 March 2009
Mr. Parveen Deepak Arya advised absolutely correct. I do agree with his views.
Jitendra Raval
(Querist) 23 March 2009
I have added certain points number 8 and 9 . Kindly look into.
Jitendra Raval
(Querist) 23 March 2009
Please reply regarding point number 8 and 9
Jitendra Raval
(Querist) 23 March 2009
Please consider points 8 and 9 also while reply.
adv. rajeev ( rajoo )
(Expert) 25 March 2009
The transaction is not a business transaction and advise of the praveen is nice. Cause of action starts from the date of service of Ist notice
