138 of ni act.
Suresh Babu Rai
(Querist) 11 May 2013
This query is : Resolved
Good Morning Members & Experts!
I have filed a complaint under Sec. 138 of NI Act against a firm as A1 and its managing partners as A2 to A4, who are liable for the day to day affairs and business of the firm. I have invoked all the provisions of the Act as contemplated and in reply to my legal notice all the Accused have replied through a common Advocate with a false allegation that the complainant, who is my client have stolen the cheque from the house of A2 (There is no complainant lodged by them till to date to that effect) and by misusing the same he has filed the present case as such they are not liable to pay any amount.
The Accused neither have denied the signature of the A2 on the cheque nor have denied the amount mentioned in the cheque in the said reply notice. Sub sequent to my complaint all the accused have appeared before the court and the said case is posted for their examination from 03.04.2013 to 24.06.2013 (I have fled the complaint on 30.11.2010).
At this belated stage on 03.04.2013 the learned counsel for the Accused have filed a Cr.M.P under section 239 of Cr.P.C seeking discharge of Accused No.1, 3 and 4. As I have stated above A1 is the firm, A2 who issued the cheque, A3 and 4 are its Managing Partners. Instead of filing the quash proceedings the learned counsel for the Accused has filed the present petition (No quash proceedings are pending with High Court). I did not file counter, but stated to the JMFC that the Cr.M.P itself is not maintainable as there is no such provision in NI Act to discharge the Accused, the only remedy is available to them is quash proceedings but not discharge.
Sir!
Whether the petition filed by the Accused (Criminal Miscellaneous Petition under Section 239 of Cr.P.C seeking Discharge of Accused No.1,3 and 4 for the Offense Under Section 138 of NI Act ?
Thanking You one and all !
Satya Mani Tiwari
(Expert) 11 May 2013
Only A2 can be tried as an accuse u/s 138 Negotiable Instrument Act.
The person who signs to issue the cheque is made liable in NI Act.
Suresh Babu Rai
(Querist) 12 May 2013
Let it be the final judgment, but my question is whether the provision for discharging the Accused attracts the NI Act or not ?
Thank you Sir !
Satya Mani Tiwari
(Expert) 13 May 2013
As per Section 141 NI act A1 to A4 can be made liable under the Act.
Ultimately the person who issues cheque under his signature is found responsible.
Suresh Babu Rai
(Querist) 13 May 2013
Yes Sir!
But my question is :
The complaint under Sec.138 & 142 of NI Act shall be filed under Section 200 Cr.P.C i.e. a private complaint.
Whether the application under Sec.239 of Cr.P.C aplicable to a private complaint or not?
I have a case law to that extent: AIR 1959 A.P 530 that says Section 239 :- When accused shall be discharged (Chapter XIX) of Cr.P.C : This section has no application to a case arising out of a private complaint.
V R SHROFF
(Expert) 13 May 2013
A1,3,4 should have apply for revision for issue of process against them within 90 days of receipt of summon.
Once process is issued and not challenged,They also pleaded "not guilty and can be tried" their present application cannot stand. They have to undergo trial now. [I presume, no any interim orders or any application or order]
Suresh Babu Rai
(Querist) 14 May 2013
Summons served on all the accused in the year 2010 itself. As you said sir even the accused failed to deny their liability against the complainant in the reply notice, they simply said that the cheque stolen by the complainant during the course of their business ( The complainant is admittedly retired member of the firm)
Thank you Sir ...
DEFENSE ADVOCATE.-firmaction@g
(Expert) 14 May 2013
It seems due to immature legal advice such application has been moved by the accused.
But cheque law is not perfect it is like children s JIG SAW PUZZLE which has more chances of failure and min chances of winning.
It is misconception of many that cheque means liability is also presumed.
Complainant has to prove LEGAL LIABILITY.
Supreme court in very recent case where even the conviction confirmed by HIGH COURT was set aside has said that-
There was no reliable documentary evidence adduced by the
complainant to hold that a sum of Rs.....was due to him
warranting execution of Exhibit P-1 cheque.
There was no amount legally due to the respondent to hold that
Exhibit P-1 cheque was as a matter of fact issued by the appellant
in favour of the respondent in order to hold that he was a holder of
the cheque.
SO THIS IS JUST TRAILER , THERE WILL BE MANY MANY ACTS BEFORE FINAL CURTAIN IS DRAWN.
