ashok kumar (Social Worker) 22 April 2013

In discharge of legal debt-the debtor gives husbands cheque

Cheque tendered of Husband

In discharge of a legal debt, the debtor lady hands over the cheque of her husband account, signed by the Husband. The cheque bounces. Notice issued to the lady under Section 138. She doesnt reply. On institution of the complaint and after the Bailable warrants are issued Can the debtor take a protection under the plea that she never issued the cheque so she is not liable?Can the case be dismissed on this ground

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5 Replies

MARU ADVOCATE (simple solutions for criminal legal problems -- yourpunch@gmail.com) 23 April 2013

Since case is filed process is issued so the accused has to face the trial.

1) Complainants in over confidence make such mistakes which are fatal to the case since both hustand and wife should have been made parties to the complaint.

2) case is simple and accused can be aquited but only after trial However there should be proper well planned defense.

Accused of cheque bounce cases like this pl send your email ID for proper and regular inputs.

R Trivedi (advocate.dma@gmail.com) 26 April 2013

Combine reading of S.138 and S.139 is relevant for your case..

1. Case is not maintainable on Wife, for the simple reason cheque is not from her account.

2. Case could have been inititated against Husband after due process (such cheque comes under other liability).

If wife approaches HC under S.482, matter would be quashed, No need to come forward and talk about husband. The lady can attempt one more thing: Move an application to magistrate for discharge citing that cheque is not from her account and she is not the drawer of the cheque, in this she should also mention that she has no money and resources to approach Hon High Court under S.482 for quash and hence this appeal is made to this court to send the same for reference, if the Ld trial court feels not empowered enough to quash the proceedings.

Be careful in your submissions, don't lie too much about this Husband wife issue, because complainant can still use many sections of IPC like S.420.

ashok kumar (Social Worker) 27 April 2013

Thanks R Trivediji

In fact inthis case the complainaint envisages complaint under Section 420against the lady because it is she who handed over teh cheque of her husband

Will teh complaint be Prima Facie admissable?

MARU ADVOCATE (simple solutions for criminal legal problems -- yourpunch@gmail.com) 27 April 2013

Just go through the very recent SUPREME COURT citation wherein even the lower court and High court had acquited the accused the issuer of cheque on behalf of other was convicted.

20. In view of the aforestated facts and legal position, in our opinion, the accused

ought to have been held guilty, especially accused no. 4, Munish Jain who had signed

all the cheques for M/s A.T. Overseas Ltd. We, therefore, hold Munish Jain,vaccused no. 4 and respondent no. 4 herein, in both the cases guilty of the offence under Section 138 of the Act.

21. Accused Munish Jain was acquitted by the trial court and the High Court has

confirmed the acquittal, which is being set aside by this Court by allowing these

appeals. In the circumstances, as per the provisions of Section 235(2) of the Criminal

Procedure Code, this Court will have to give an opportunity of being heard to him on

the question of sentence. We, therefore, adjourn the case to 2.8.2011 for hearing the

accused Manish Jain on the question of sentence. If on that day he fails to appear

before this Court, we shall hear his counsel on the question of sentence.

………………................................J.

(Dr. MUKUNDAKAM SHARMA)

(ANIL R. DAVE)

New Delhi

19th July, 2011.

Krishnan Iyer (Law Officer) 09 May 2013

hi i have a case wherein the wife being the gaurantor in the loan has issued the cheque of her husbands account and she is not a ccount holder in that account also she has signed in that cheque. now the problem is that the bank memo states that the reason for dishonour of cheque as funds insufficient and not signaute mismatch. i want to file a 138 case how to proceed please let me know??