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Police complaint in sec 138

(Querist) 03 May 2013 This query is : Resolved 
I had given a cheque to a dealer as a security. Now he says he will present the cheque in a city about 60 kms from our place and he files case in that city. There is no liability from my side and he doesn't have any records. Suppose cheque is bounced and he files a police complaint in that city, what is the legal remedy for me and what is the duty of the police in this situation? I am not worried about the case in Court.It is only the police matter is worrying.
Nadeem Qureshi (Expert) 04 May 2013
Dear D.G.Mohan
the police can not interfare in this regard, Complaint under section 138 of NI Act filed before the court and not in Police.
if in this case the court issue Warrant against you only then the police can arrest you otherwise there is no role of police in this case.
Feel Free to Call
M V Gupta (Expert) 04 May 2013
What is the proof that the cheque was given as security for any contract? If this is true, but not borne out by any documentary evidence, it is better that u issue a written notice as to the real purpose for issuing the cheque and that it should not be presented for encasement unless there is breach of contract. Better get the notice issued through ur advocate.
Advocate Bhartesh goyal Online (Expert) 04 May 2013
police does not register the case of cheque bouncing so do not worry about it and follow the advise of mr M.V.Gupta
ajay sethi (Expert) 04 May 2013
agree with mr gupta
Advocate M.Bhadra (Expert) 04 May 2013
Police complaint does not lie and can not be registered for cheque bounce case u/sec.138 N.i.Act.But the police authority can misuse of laws by registered a case u/sec.420 IPC.

"In a prosecution under Section 138, Negotiable Instruments Act, the mens rea
viz., fraudulent or dishonest intention at the time of issuance of cheque need
not be proved. However in a prosecution under Section 420, IPC mens rea is an
important ingredient to be established. In the former case the prosecution has
to establish that the cheque was issued by accused to discharge a legally
enforceable debt or other liability. This ingredient need not be proved in a
prosecution for the charge under Section 420, IPC. Therefore, the two offences
covered by Section 420 IPC and 138, Negotiable Instruments Act are quite
distinct and different offences even though sometimes there may be overlapping
and sometimes the accused person may commit both the offences.

You can file a Quashing petition in High Court.

Section 482 of the Criminal procedure Code deals with inherent power of High Court. It is under Chapter XXXVII of the Code titled "Miscellaneous" which reads as under:

"482. Saving of inherent power of High Court- Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice."

D.G. Mohan (Querist) 04 May 2013
Thank you very much gentlemen.
D.G. Mohan (Querist) 05 May 2013
Suppose he files case in sec420 to police what does the police do in such case? Can they arrest directly. I have not taken any amount from him and they do not have any records for that. How to counter sec 420?
Rajendra K Goyal (Expert) 05 May 2013
If the case is registered u/s 420 police can arrest. You should immediately take steps as advised by Expert M.V. Gupta.
DEFENSE ADVOCATE.-firmaction@g (Expert) 05 May 2013
Once cheque is bounced notice will be issued,before filing the case. If it is bounced away from your place than for filing police case u/s 420 he will also have to make a story which will not be easy.

Take legal steps with the advice of local advocate . Mistakes done at initial stages due to guilt complex creates problems in the future.
prabhakar singh (Expert) 05 May 2013
Once he presents the cheque and it gets bounced,police goes out of picture.

What record you have to prove it is security cheque?

You looked for solution of a problem without telling the circumstances in which the cheque was issued.

Arun Kumar Bhagat (Expert) 05 May 2013
Generally for Cheque Bouncing cases Police do not accept FIR. It depends upon the Person and place . Better appoint someone who can keep tab upon the FIR register kept in respective court. Anyway before arrest police have to comply Sec. 41A Cr.P.C i.e. issuance of notice.

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