Civil Procedure Code (CPC)

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negotial instrument act

(Querist) 27 October 2010 This query is : Resolved 
A purchased some products worth about 1 lakhs Rupees from B. B is properitor firm. A issued a cheque to B for one lakh. Said cheque was retunred exceed arragements. B filed complaint under section 138 of N.I. ACT. On the complaint givent by the B the Learned Judical Magistrate takeing congnizance and issued process to A. At the time corss examination of B he admitts that his wife alone is the owner of the said firm and didn't get power of Attorney form his wife. Whether the complaint is Valid one?
Arun Kumar Bhagat (Expert) 27 October 2010
The case of B will fail. See judgement of Supreme Court passed in Shankar Finance's Case.
adv. rajeev ( rajoo ) (Expert) 27 October 2010
It is worst case to the complainant
rajendran (Querist) 27 October 2010
Thank you to the Senior Counsel Sri Arun Kumar Bhagat. Kindly intimate the detail of Shankar finance's case
rajendran (Querist) 27 October 2010
I want the year and book valume of the judgement by supremcourt
Devajyoti Barman (Expert) 27 October 2010
It is M/S Shankar Finance & Investments Vs State of Andrhra Pradesh.
AEJAZ AHMED (Expert) 27 October 2010
Find attached the pdf file of Judgment
DEFENSE ADVOCATE.-firmaction@g (Expert) 27 October 2010
The offense under NI act is against the holder of cheque.. Only in case of un n atural persons a dully authrorised person can come in picture.

But still the section 60 of evidence act is applicable and if such person do not have knowledge even if he have POA it is of no use.

So in such cases care has to be taken in cross where it must be taken from the mouth of the deponent that he /she does not have personal knowledge than no citation is needed.
Kirti Kar Tripathi (Expert) 27 October 2010
THANKS DEAR AEJAZ FOR JUDGMENT.
Devajyoti Barman (Expert) 27 October 2010
Yes
Advocate. Arunagiri (Expert) 29 October 2010
In what capacity B had initiated prsecution against A?

In whose name the cheque was issued?

Who had issued the legal notice?

If A is not the owner nor the POA, how the case was taken on file by the magistrate?

These things are not clear for answering the query.
s.subramanian (Expert) 29 October 2010
I agree with Mr.Arun.
bhupender sharma (Expert) 29 October 2010
Though the judgemets are available for other side which says that the same is mere technicllity and the same can rectified by adducing the additional evidence to such extent from the query the legally payable debts are not disputed, and the cheque given in discharge of the said legally paybale debt is not dispued, mere technicality may not be impediments in disbursement of justice, we have forgotten the things that it is criminal complaint not the civil suit. More so he seek the permission of court under sec. 302 of the code.
bhupender sharma (Expert) 29 October 2010
The judgement on perusal appears to be contrary to the facts the said judgeent allowed the appeal set aside the order of the High ourt who had quashed the complaint against respondent no. 4 and the Hn'ble Supreme Court allowed the said appeal against the said judgement and directed to procee with the case in ccordance wit law.


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