NI Act
adv. rajeev ( rajoo )
(Querist) 27 April 2010
This query is : Resolved
I am representing the accused No:2 in NI Act case.
My defence is that A:2 is no way concerned to the debt which was paid thru., by A:1.
There was partnership, which was dissolved before the issuance of the cheque by A:1.
As such A:2 is not liable for the offence.
And another thing is that before filing the case complainant has not issued a notice to the partnership firm, in my opinion notice to firm is mandatory.
in the cross examination complainant admitted that he has no other income except the business income and also admitted that he has not produced any a/cs of the firm to show amount is paid from the business income. He said that he has paid the amount personally so in my opinion it amount unregd., money lending as such it does not attract NI Act.
i had gone thru., the ruling of Karnataka High Court that unauthorized money lending does not attract the NI Act, it may in the year 1999 reported in ILR Kar.
So please learned members if have any ruling regarding issuance of notice is mandatory to the firm and regarding unauthroised money lending.
Thanks to all.
Akhilesh Kumar
(Expert) 27 April 2010
If the dissolution of the firm was announced to the public prior issuance of the cheque then it will be good ground otherwise he will be responsible if he proves that money was taken during course of business of the firm.If that person is holder in due course then he has right to recover the amount from A-1.
Raj Kumar Makkad
(Expert) 27 April 2010
Negotiable Instruments Act, 1881, S.138 - Dishonour of cheque - Cheque issued towards repayment of loan - Money lender - Not possible to lend money without any document - Date of lending money not mentioned in complaint and notice - Ledger extract or any letter sanctioning loan amount or pronote to show sanction of loan not produced - Presumption u/s 139 is not available - Defence version is probabilised that cheque was issued by way of security for loan given by complainant to his brother and his brother is already convicted and present proceedings instituted by him to realise amount once again from surety is not maintainable - Accused acquitted. (M.Senguttuvan Vs Mahadevaswamy) 2007(3) Civil Court Cases 687 (Karnataka) : 2007(3) Criminal Court Cases 337 (Karnataka)
Raj Kumar Makkad
(Expert) 27 April 2010
Negotiable Instruments Act, 1881, S.138 - Dishonour of cheque - Company - Director - Vicarious liability - Director who negotiated for obtaining financial assistance on behalf of the Company cannot be held vicariously liable - It does not give rise to an inference that he was responsible for day-to-day affairs of the company - Vicarious liability on the part of a person must be pleaded and proved - It cannot be a subject matter of mere inference. (K.Srikanth Singh Vs M/s North East Securities Ltd. & Ors.) 2007(3) Apex Court Judgments 024 (S.C.) : 2007(3) Civil Court Cases 525 (S.C.) : 2007(3) Criminal Court Cases 850 (S.C.)
Raj Kumar Makkad
(Expert) 27 April 2010
Negotiable Instruments Act, 1881, S.138 - Dishonour of cheque - Court to carry out proper verification before issuing process - Verifications required are : (1) Verification of a complaint on oath which should be in a proper manner i.e. all the facts necessary to constitute the offence must be borne out from the verification; (2) If Company then person representing the Company should be duly authorised; (3) Complete postal addresses of complainant and accused; (4) Statement of the complainant that all the accused persons named in the complaint are Directors/Partners and that they are liable under the Act and to verify the status of accused and the extent of involvement in the commission of offence; (5) That the accused is the signatory to the instrument in question; (6) Fact of issuance of statutory notice and Court should insist for some formal proof in the form of acknowledgment receipt etc.; (7) Whether the concerned Firm/Company, Society/Institution, Partner/Director or Proprietor are joined as parties or not; (8) Whether the complaint has been filed within the period of limitation as prescribed under S.138 of the Act; (9) Whether there are any specific allegations against each accused or not. (Dr.Rajan Sanatkumar Joshi Vs Rajnikant Govindlal Shah & Anr.) 2007(3) Criminal Court Cases 577 (Gujarat)
