Ni act - 138
Munish Kumar Garg
(Querist) 07 May 2012
This query is : Resolved
Hello members,
When a complainant files the complaint u/s138 NI Act, the complaint is deemed to be filed as per Section 2(d) of the CrPC which provides for filling the criminal court of competent jurisdiction.
In my case the complainant filed the complaint U/s138 of NI Act as per provisions of Section 2(d) of the Act and in his complaint he has taken two inconsistent pleas of alleged debt and liability towards him by the accused. As he taken one plea in Para No.1 of the complaint that the cheque was issued for this plea and in Para No.6 of the complaint he is taking other plea that same cheuqe was issued for the borrowed money which the accused had taken from the complainant.
So can any member please guide me whether these 2 pleas taken by the complainant in his complaint are inconsistent pleas or not. If yes, then please provide me some good citations in this regard on Section 2(d) of CrPC.
I am attaching here the complaint filed by the complainant with this query.
Thanks
Munish Kumar Garg
Advocate
V R SHROFF
(Expert) 07 May 2012
Complain not drafted properly.
NOT APPLIED MIND.
But ingredient of 138 ni exist to issue process. What is the date of cheque and when was A/c Closed? Is VITAL .
your Para 6 query can be taken care of during examination of witnesses. Weightage of Contents of Complaint is negligible compared to Evidence Lead, and cross examination.
SAINATH DEVALLA
(Expert) 07 May 2012
Section 2(d) crpc:
(d) "complaint" means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence, but does not include a police report.
1. Was the cheque dated after the account was closed?
2. At the first instance the cheque was issued for the payment of salary.
3. The same cheque cannot be for money borrowed.Hence a technical flaw by the complainant.
Go for a quash in the higher court and I am sure there could be respite.
Munish Kumar Garg
(Querist) 07 May 2012
Thanks for the reply.
In the above captioned case, I was already convicted and held guilty by both the courts below and now I am in revision before the Hon'ble High Court, my only problem is that as you can see in complaint itself that the complainant taken 2 pleas of the issuance of cheque to him by the accused, but the ld. courts below holds only Para No.1 and did not give any finding of the plea taken by the complainant in Para No.6 and holds that the presumption can be drawn rightly in favour of the holder that the cheque was issued only for the non-payment of salary dues, and even the complainant does not lead any evidence in this regard of any debt or liability towards him of the accused.
For your connivance I am attaching the revision petition drafted by me and alongwith complete Judgments having INDEX in the starting.
Please reply me as soon as possible.
Thanks
DEFENSE ADVOCATE.-firmaction@g
(Expert) 08 May 2012
Yes it is a repeated query.
I have given detailed reply in earlier query.
1) As was my presumption that the accused is IN jail is right from your above attachment.
You must seek immediate bail, pending this revision.
2) You are just pressing one point about liability and just ignoring other defenses.
3) Since the case has been decided by two courts below against accused so you have to take more than normal efforts at High court.
4) Go through the documents, cross , findings of lower courts and add as many defense points as possible.
AS ON TODAY THERE IS NO MERIT IN YOUR PETITION BEFORE HC.
DEFENSE ADVOCATE.-firmaction@g
(Expert) 08 May 2012
Your citations referred does not have much relevance, instead study HERMANN case referred by lower court in this case and you will get points for your defense.
Simple tricks of defense.
When a bucket is lost in a well what normally in a village they do to recover this bucket. They keep a multi angled hook catch just like an octopus . It has small small hooks at different angles. It is lowered in the well the bucket gets entangled in any one of the hooks.
Similarly for defense you must not stick to any one strategy however plausible and strong it may look. Study each and every word of the documents and find as many faults as possible. You will get numerous mistakes of the opponent.
Please do not put much reliance on citations of higher courts since many times even applicable but lower courts may disagree. So in over confidence due to dependence on citations other opportunities of defense are lost.
Power of defense is power of logic, power of negative, power of darkness and it is perpetual and immense. It is the skill of defense to harness it. Dive deep and you will get pearls on surface you just collect garbage.
Shonee Kapoor
(Expert) 09 May 2012
You would succeed in HC
Regards,
Shonee Kapoor
harassed.by.498a@gmail.com
SAINATH DEVALLA
(Expert) 09 May 2012
Dear Garg,
Don't keep changiong threads for the same query.On the 6th you posted the same query"Section 138".Why do you want to confuse the experts?
