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sanju (Owner)     16 September 2012

138 negotiable instrument act


Citation required favoring claim of petitioner under negotiable instrument act

sanjay (petitioner) Owen a firm with business of selling iron

M Alam (accused) broker of iron

M alam purchased iron from sanjay of Rs 7, 73,000.00 and give him a cash of Rs 2, 23,000.00 + two cheque of Rs 1, 50,000.00 each with rest Rs 250,000.00 to pay in a week promised

As the bill accepted by M alam sanjay didn't take any receiving of material given and M alam's given cheque was filled without the drawer’s name which was filled by sanjay in front of M alam on his consent

sanjay produced both cheque at bank and it was bounced due to insufficient funds, sanjay tried accused of phone but he didn't lifted the phone, sanjay went to the residence of M alam which was found false, on getting the accused address from bank sanjay went to his new address here accused promised him to repay uoto 15/03/2008 so that sanjay should produce cheque in bank for payment with an excuse that he was in Jharkhand for his marriage so he didn't lifted the phone sanjay again produced the cheque which got bounced with same reason

Sanjay sent accused notice for the recovery, accused replied by means of lawyer in written that:

1. i don't know any sanjay never purchased any iron from him so no liability liability actual is that, sanjay is having business with rajkumar my friend to whom sanjay has a verbal contract that sanjay will give iron worth Rs 300000.00 without any advance on receiving material rajkumar will pay sanjay Rs 300000.00 to which sanjay asked rajkumar guarantee of Rs 300000.00, rajkumar don't have any bank account, as rajkumar is my friend so I have taken his guarantee, so in security guarantee 2 cheque without date is kept with you, on taking this guarantee you have promised that this cheque will never been produced in bank and if there is any liability with rajkumar, rajkumar will pay not me. your promised you have produced cheque in bank without any notice to me, nor notice to me about bounce of cheque i have never told you to produce cheque at bank again, you have did all this get your case within the time limit of 138 nego instrument act.

4. I want to make it clear that i have given guarantee, according to this guarantee if there is ay liability against rajkumar, then you should come to me with entire account if i find any liability I am ready to support you to get funds.

On putting petition at court

Accused put application in court under sec 179 saying that, this is not under the jurisdiction of court which was dismissed by honorable court on objection made by petitioner that when accused produced the bail application he states his residence address of Raipur and cheque is given at Raipur so jurisdiction is Raipur on date 25 April 2009

Witness no1 complainant (chief)

1.    I proprietor of abc company, whose registered office is at durg, and head office at X Raipur at time of case submitted and Y Raipur in current, accused has purchased iron from me of Rs 773000 out of which cash given Rs 223000 and Rs 150000 and rest Rs 250000 promised to been given in a week with 2 cheques given by accused saying that I came with 2 cheques which is already filled by me so rest will be paid in a week, accused has filled all the entries in cheque leaving my name which was filled by me in front and consent of accused. Both the given cheque I have produced in my abc company current account on date 14 feb 08, information of submitted cheque bounced was given to me by my bankers on phone date 18 feb 08, on 20 feb08 I collected cheque from bank, after that I tried to search and contact accused how was not available in Raipur and his mobile was switched off, so I contact IDBI bank and get his address and went to meet him, were he told that he was in Jharkhand for the propose of his marriage so I was unable to contact him and upto 15 mar 08 entire fund will be available in bank account so you can put the cheque in bank again and this time it will not be dishonored for the rest Rs 250000.00 payment I need more one week, after this I produced cheque in bank again which was dishonored on 20 mar 08, on which I meet to my legal advisor and he sent the notice for recovery, in reply to my notice accused has given all facts false and dined to give any payment so I came to court.

Cross examination of petitioner by defense advocate

2.    I don’t know the exact date when cheque were bounced (witness says by himself) I was informed by bank on phone date 18 feb 08 about the cheque bounced, True I have not given any legal notice to accused when the cheque were bounced for the first time (witness says by himself) accused has given me his false address so I can’t sent him any legal notice, I went in person  to the place as address of accused said by him, which was not the address of accused, accused has given me his false address, address of accused given by bank to me & I went to meet him at bhilai, accused in previous told me his address khamardih Raipur, False that accused has told me his address of bhilai while purchasing iron from me, True that accused has given written reply of my legal notice, True that I don’t know rajkumar (witness says by himself) accused has told me that he is transporter how has transported material, true that accused has said in his notice that I have sold iron to rajkumar and in liability of it accused has taken guarantee for that he has given cheque, true that I have not replied on reply of accused against my legal notice(witness says by himself) my legal advisor advised me not to reply that notice.

3.    True that I have never accounted according to the reply given by accused on my notice, true that in my notice to accused I have not mentioned that I have called accused on phone which was switched off and searched him in Raipur got his address from bank and went there(witness says by himself)I have told him all why he didn’t write all I don’t know on which he told that main things has to written in notice, True that in my notice and petition no such thing has written such that accused has given me wrong address at the time of purchase of iron, True that cheque has been given against purchase of iron but there is no account books has been produced in court(witness says by himself) I have produced invoice copy of sale True that copy of invoice is made by computer not from any invoice book (witness says by himself) in our office entire trade account is maintained in computer true that this are the copy of iron supplied by me to XYZ Company were XYZ Company has received sign imposed on it (witness says by himself)  that iron was shipped from EITC depot bhilai to XYZ Company of which the delivery Challan has been produced by accused True iron sold to accused no delivery Challan has been issued nor accused has issued any purchase order (witness says by himself) that it was a oral order on phone because I was in Visakhapatnam at that time from 9 feb 08  to 14 feb 08 on 14 when I came to Raipur accused came to my office and made cash payment of Rs 223000 with 2 cheque of Rs 150000 each and accepted the bill so there was no issue left for any delivery Challan or receipt True that I have issued receipt of cash and given it to accused true I have produced office copy of any such receipt True that I have not produced any document with petition mention receipt of iron by accused.

4.    True I don’t know by which truck I have sent iron to accused (witness says by himself) that accused himself on his expense lifted material from XYZ Company, True that I have not produced any document proving that on which date accused lifted iron from XYZ Company True that I have not mention this in my petition True that there was special indication on my material at XYZ Company (witness says by himself) that were material is kept a board mentioning owner/suppliers name is kept In front of material, False that accused has purchased iron from XYZ Company not from me, True that while accused lifted material from XYZ Company receiving has been taken by XYZ Company (witness says by himself) as driver has lifted material so receiving has been taken my driver.

5.    True that business in between me and accused is legal (witness says by himself) such business is not illegal False that date and amount written in cheque is by different pen False that accused has not purchased any material from me so he has not written my name on cheque, False that cheque given by accused is for guarantee False that I have produced cheque in bank by wrong way, False that I there is no debit on accused and I have produced false petition in court.

6.    False that in year 2007-08 I have not given any detail to commercial tax department that from where I have purchased iron, True that I have not produced any purchased list submitted at commercial tax department

7.    True that I have given detail of sale and purchase for year 2007-08 to commercial tax department, True that I have given information on date 13 oct 11 (witness says by himself) in previous also detail has been given to tax department and Rs 10000.00 tax has been paid, but I don’t have any document when accused asked such document I have submitted document to tax department and received slip, true that vat tax on material sold is taken by purchaser.

8.    True tax received from party is submitted in tax department by means of bank, (witness says by himself) I submitted at the ending of financial year True that tax can be paid monthly and quarterly, False that on submitting tax we have to inform tax department that to which party how much is sale and how much is tax (witness says by himself) when purchase list is given to tax department all details are there.

9.    True if there is any due on party he tax is pending and information is given to department.

Question: in year 2007-08 on date 11 feb 08 how much quantity, cash received, cash left how’s tax is pending any information given to tax department is not submitted at court

Answer: True that I have not produced any such documents (witness says by himself) tax department only ask for sale and purchase detail they don’t ask about the payment received or pending, I have not applied for any tax relief because this case is pending in court

10. True that I don’t have receiving in relation to iron supplied to accused (witness says by himself) on recovering cheque and cash there is no mean of any receiving

11. True that cash payment given by accused is not informed to commercial tax department (witness says by himself) commercial tax department never ask for such things.

Petitioner witness 2&3 both bankers said according to their record.

Defense witness no 1 rajkumar (chief)

1. I don’t do any business of iron, I am a transporter from last 11 years, i have transported material for transporter and for guarantee of material transported i have given security cheques to petitioner of accused, even petitioner has not given my payment of transportation, the security cheque has blank with signature only no name no date no amount, accused told me that petitioner has put case against him and notice issued, i tried to speak to petitioner but he told we will speak in court, i with my friend satish shukla (defense witness no 2) has given cheque to petitioner at bhilai bridge 5 years before, accused has never given cheque to petitioner nor he knows petitioner. Petitioner has called me to his office at telibandha and said that he daily need trucks for transportation and i had worked for him, i have only 2 trucks but worked with other transports too.

cross examination of defense witness:

2. True, that i now accused from last 13 years and we have good relation, True that petitioner did not know about material given to accused, True that material supplied to accused was not by my truck.

3. True there is no written proof of any transportation done for petitioner, i forgot the date when i have given cheque, while giving cheque i have told to petitioner that cheque is of accused, i have also told accused about the cheque given to petitioner, i don't know the number of cheque, cheque was of idbi bank, about security guarantee we don’t did any written.

4. i have not told accused to give reply of notice given by petitioner, i went to the petitioner, its false that i have not given any cheque to petitioner and today on accused request I am giving false statement.

5.its false that i have not given any cheque to petitioner so i don’t know date and cheque number, its false that I am giving false statement against petitioner because petitioner has not given my money, True that i don't know about any business in between accused and petitioner

defense witness no 2 satish shukla (chief)

1. i know accused M alam, i know him because of my friend rajkumar (defense witness no 1), i know accused from last 6 years, accused was marketing filter water at that time, i do know petitioner sanjay, i know petitioner sanjay because of rajkumar (defense witness no 1), there is no business in between accuses and petitioner about any loan, iron material or cheque, 5 years before today i & rajkumar was going towards transport nagar bhilai, rajkumar how is a transporter, rajkumar told me that he is running trucks for petitioner & petitioner has asked to give security cheque, to give cheque I am going, then rajkumar told i don’t have any cheque so I am giving cheque of my friend M alam which were 2 nos of IDBI bank blank with only signature no date and amount , that both cheque were given to petitioner by rajkumar in front of me, accused and petitioner don't know each other.

cross examination of defense witness no 2

2. true accused M alam told me to appear in court for statement in any case, True that accused M alam told me about the case, True i came here to give statement according to and said by accused(mai araopi ke batye anusar gavahi dene aya hoon), i have meet with lawyer of accused, True accused and defense witness rajkumar are my good friends, true that i regularly visit to accused and rajkumar's house, me and rajkumar never went to petitioner's office he came transport nagar bhilai to collect cheque.

3. False that i know petitioner from starting and i have taken advance of Rs 160000.00 about to which it was disputed, false that i don’t know accused M alam, False that cheque was against material or for what security cheque was given i don't know, rajkumar own only 2 truck els he take trucks on rent from other transport.

4. Accused in current have business of network marketing, he don't work any thing els than this, True that i can't tell the numbers of cheque given by rajkumar to petitioner, that cheque bear accused signature, i know accused signature because he has signed many times in front of me, i don't know that why accused in his reply against the notice of petitioner has said that in cheque only date is not written by him rest is written by him only, True that i know accused long before the issue of cheques, i can't tell from where rajkumar trucks has been financed.

5. False that i can't say that rajkumar has any bank account or not, (witness says by himself) that rajkumar don’t have any bank account, true that i have spoken to petitioner on phone after cheque issued in this case, i have made call to petitioner (witness says by himself) call made about business with rajkumar, True that before this cheque were issued i have never spoken to petitioner, on my which mobile number i have spoken to petitioner i can't say, i don't remember old number's, i got petitioner’s number from rajkumar, rajkumar told me that petitioner is not giving my payment nor answering my call you call from your phone.

6. False that accused and petitioner has business of iron ore, false that accused has a business of iron, False that accused and rajkumar cheated petitioner with a planning purchased iron from petitioner and sold it els were, False that accused and rajkumar conspired and given such cheque to petitioner for abduction of payment of iron, i can recognize rajkumars hand writing, about this case accused told me 2-3 years before

7. True that accused and rajkumar told me about the cheque been bounced at bank which was given to petitioner (witness says by himself) cheque was given for guarantee, True that accused m alam told me about cheque bounced, accused told me that cheque given by rajkumar has been bounced at bank, accused didn't told me the date on which the cheque were bounced, i have been told that cheque has been bounced at bank trice, where other els rajkumar has transport business i can't tell, i don't know that rajkumar has given cheque as guarantee els where for business, i don't know cheque were of what amount, False that accused has purchased iron from petitioner against cheque produced in this case, False that i don’t have good relation with petitioner, False that on request of rajkumar and accused I am here to give false statement, False that i have knowledge of conspiracy by accused and rajkumar, False that i am not telling truth in court save rajkumar and accused with an intention to hurt petitioner financially, False that rajkumar has not given cheque in my presence.




 3 Replies

LAXMINARAYAN - Sr Advocate. ( solve problems in criminal cases.     16 September 2012

Even after such lenthy writting it is nor known whether it is put by complainant or accused.

If it is by accused than on face of it the court has no jurisdiction and he can go to higher court n revision on this point alone.

How it can be done can be advised after seeing the actual papers.

a kaushik (advocate)     22 September 2012






LAXMINARAYAN - Sr Advocate. ( solve problems in criminal cases.     22 September 2012

In all such cases it is easy for accused to win and defficult for complainant to suceed.

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