Ni act
C. P. CHUGH
(Querist) 23 February 2012
This query is : Resolved
Dear Experts
Attached is a copy of complaint and related documents. Pls suggest any
escape route.
Brief Facts
Cheque is of a Company of which I was a director
Complaint is against me only. Company not impleaded as accused.
Cheque is Very OLD and the series of which was being in use some time in 1998
The Writing of cheque viz Name of Payee and Amount both in words and
fiqures are not in my handwriting. Signatures on cheque also differs
from my signatures.
Bank return memo states following reasons for return
1. Insufficient Fund
2. Signature differ
3. Cheque mutilated requires bank confirmation
4. Previous stamps not cancelled.
Original cheque produced before court is not complete one and has one part of
it missing, teared off including part of signatures, it is also torn
off in between and
cello tape has been affixed.
Whether the complaint in present form is maintainable and if not on
what grounds.
What other defence is available in case of charge sheeted.
Thanks in advance
SAINATH DEVALLA
(Expert) 23 February 2012
Dear Mr.Chugh,
AT THE OUTSET YOUR WORDS ESCAPE ROUTE IS NOT CORRECT.
Cheque is considered to be a dreaded weapon in the hand of the complainant.It is Heart for the entire case along with other documentry evdince.You are saying that the cheque is altered and mutilated and other aspects state that the complainants case has no standing.Your advocate can be consulted for a quash of the case in the higher court after carefully analysing the complaint and the
documentry evidence. Bank itself has stated the following:
1. Insufficient Fund
2. Signature differ
3. Cheque mutilated requires bank confirmation
4. Previous stamps not cancelled.
I have gone through the complaint and other affidavits.
Kindly clarify whether you have given your personal cheque or the company's cheque.The complainant says it it a friendly loan,then you cannot give the company's cheque.Were you friends or partners? If you were partners then it is a different case.There are quite a few loop holes in the case.
DEFENSE ADVOCATE.-firmaction@g
(Expert) 23 February 2012
drawer of cheque is also liable.
More over in the application of the accused for forensic examination certain facts are admitted which are fatal, without its admission it was for the complainant to prove them.
If the complainant realises the admissions and takes it advantage the defense scope becomes limited except to contradict the complainant in cross which is most special job.
IN CHEQUE CASES IT IS NOT THE COMPLAINANT WHO WINS BUT IT IS ACCUSED WHO LOOSES DUE TO LOUSY DEFENSE.
prabhakar singh
(Expert) 23 February 2012
YES!The application made for sending the document for expert examination has needlessly set up a lousy unwarranted and highly improbable.A lot of complaisant's burden discharged by admissions.
R Trivedi
(Expert) 24 February 2012
Pl sternly discuss the matter with the person who advised you to go in for forensic test. When the Bank dishonor clearly states that..
1. Signature Differs and
2. Other Bank Guarantee is required.
Under these conditions Bank is not even supposed to mark funds insufficient, but they do it.
It was utter mechanical kind of approach by the trial court to take cognizance. If you want faster justice approach HC under S. 482.
V R SHROFF
(Expert) 24 February 2012
Try get Opinion of another forensic Experts..
For ur favr opinion, do u want help???
R Trivedi
(Expert) 24 February 2012
The presumption under S.139 of the Act is not available when Bank itself says signature differs. Complainant can have other remedies but not under S.138.
SAINATH DEVALLA
(Expert) 24 February 2012
AS suggested by Mr.Trivedi,better approach the High Court, as there are numerous technical flaws in the entire case
DEFENSE ADVOCATE.-firmaction@g
(Expert) 25 February 2012
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1735 OF 2011
ARISING OUT OF S.L.P. (CRL.) NO. 10005 OF 2009
Court also referred to the decision of this Court in
State of Haryana v. Bhajan Lal reported in 1992 Suppl. 1
SCC 335 and also to the settled position of law that
genuineness of the allegations/charge is an issue to be
tried and the Court in exercise of its jurisdiction under
Section 482 of the Code of Criminal Procedure cannot
delve into such factual controversy so as to quash the
proceedings.
C. P. CHUGH
(Querist) 25 February 2012
Dear Experts,
Thanks for your valubale comments and advise. I have learned that not only you have to be well informed but also you need to appoint a counsel who is also so.
Well what ever harm has been done is done, now please suggest how to come out of the situation. Please suggest in definite words how to challange the maintainability of the complaint before the trial court.
Thanks
C. P. CHUGH
(Querist) 26 February 2012
Dear Experts,
Further to above Can/should I withdraw application made for forensic test. The application is under consideration of the court and no order has been passed as yet.
2. Can/Will after withdrawl, the said application be read against me as evidence.
Thanks
Shonee Kapoor
(Expert) 26 February 2012
Nothing left to add.
Regards,
Shonee Kapoor
harassed.by.498a@gmail.com
V R SHROFF
(Expert) 26 February 2012
U MAY "NOT PRESSED" THE PRESENT APPLICATION WITH LEAVE OF COURT TO APPLY IF AND WHEN NEEDED.
DEFENSE ADVOCATE.-firmaction@g
(Expert) 26 February 2012
Once the commitments are there in the application so you can not avoid its admissions , so better to continue and try to get orders for forensic examination which will help you and pray that opponent do not come in grasp of your admissions which many complainants do in over confidence.
