pls guide
vinod
(Querist) 01 June 2011
This query is : Resolved
the case is as below:
1) false addresses used to open acct with commodity excahnge and loss caused to the tune of 4.5cr in such falsely opened accts
2) all such addresses verified false by the police
3)accused and 3 coaccused charged under sec 420,467,468,471,120B
4) main accused in jail
5) main accused had his bail rejecyed by the sessions court
6) main accused moved high court, imp here to note that his brother who is coaccused had his anticipatory bail rejected from the same high court and is absconding against the courts order to surrender
7) the complainant(commodity exchange) presented the security cheques which got bounced....notice served under sec138
8) main accused also has opened false accounts with bank giving false addresses and the same bank cheques given as security
My contention here is that cheque bouncing will invoke sec138 but the forgery committed in giving false documents(fabricated) of addresses that do not exist to open account with commmodity exchange attracts sec 420, 467,468,471,120B.Is there a conflict with applying sec138 and these sections
the accused lawyer contended before high court that since notice served under sec138 the complainiant can file case under above charges and can not claim relief from both civil as well criminal forums so the accused must be granted bail.
he is trying to convert a criminal case into civil suit.
however this contention failed in front of sessions court which rejected the bail saying accused has serious charges and also has no fixed address or property in his name
Question) can he get bail by claiming that since sec 138 applied so no criminal case can hold and he should get bail.
Pls provide some citation also in this favour.
G.Sundara Rajan
(Expert) 01 June 2011
Cheques given as security cannot be used for filing cheque bounce cases, i.e., there are more chances of acquittal.
But accused is liable under all other charges as per the facts described.
So, if 420, 467 468, 471 ,120B is to be applied, it is of no use to file case under 138 N.I.Act, since all the facts form a series of the same transaction.
There cant be two trials for the same set of actions. If it is done, accused can seek constitutional protection and what will follow is a series of complication.
Civil and criminal actions are different and both can run simultaneously, as law provides remedy for both kind of loss suffered, even if they arise from a single act.
Bail is the discretion of the court
vinod
(Querist) 01 June 2011
dear Mr sundara rajan,
but sec 420, 467,468 etc applied for forgery and creating false documenst toopen false accounts and is evident that the accused had malafide intentions from the begining.
he caused loss of 4.5cr and then the complainant used his cheques(given for exactly same purpose to compensate in case of loss or dispute)which bounced.
also all teh known addresses of accused are false and wrong...he also belongs to a different state and his brother who is coaccused is absconding against high court orders. Will this not effect the bail??
PARTHA P BORBORA
(Expert) 01 June 2011
if no charge sheet has been filed, no court has the power to detained an accused more then 60 days if the case is registerd under Section 420/468/471 IPC etc.
merits of the case shall be considerd in the trial, not during investigation.
vinod
(Querist) 01 June 2011
dear mr borbora,
the chargesheet filed within the stipulated time.
the accused applied for first bail in sessions after that only.the bail got rejected.
vinod
(Querist) 03 June 2011
dear sirs,
still I am not clear wheather it is possible for someone to claim that since notice served under sec138 no criminal complaint can be filed.
Ver imp and absolutely clear here that criminal complaint filed on behalf of the facts that accused has used false fabricated documents of false addresses to open commodity exchange accounts and caused loss of 4.5cr in those accounts.All such addresses verified false by the police.
sec 420, 467, 468,471 and 120B applied only for this resaon on the accused and co-accused.
Pls help clear on this.
Can no criminal complaint be filed if notice under sec138 served for cheque bouncing???
vinod
(Querist) 11 June 2011
dear sirs,
pls guide where to search for citation in favour and against the use of sec 420, 467,468,471,120B in case where cheque bouncing is also involved and accused claiming the complianant can not claim relief from both civil and criminal sides. although criminal case because of the accused having used forger paper for false addresses for opening accounts.
