Criminal Trident Pack: IPC, CrPC and IEA by Sr. Adv. G.S Shukla and Adv. Raghav Arora
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Archie (Business Development Consultant)     18 October 2012

Bounced cheque case

 

I had taken a balance transfer loan from IDBI bank of 216000/- and issued 36 Signed Blank cheques,After paying 5 EMI of 8138/- my EMI cheques bounced . IDBI entered Rs 48000/-on one blank Cheque and presented to my bank which bounced and filled a NI 138 case against me

1) I had never agreed to pay 48000/-

2) Notice served was never received – although complaint advocate has GPO non delivery letter

3) Writing on Cheque DIFERS from my signature

4) Original Power of attorney has no acceptance signature and no Board Resolution authorization

5) Later POA board resolution authorization id dated 2006 while complaint affidavit is dated 2008

6) IDBI agreement requires postdated cheques be given before loan sanction

 

Archie Pereira

 

9769758701

archie.genesis12@gmail.com

 



Learning

 14 Replies

A.V.Pattanashetti (Advocate)     18 October 2012

call me 9448035651

Pradeep Kumar (Lawyer)     18 October 2012

If you are asking whether you would be convicted or acquited is a matter of trial. Presumption of service will be taken by court even if the notice was sent at correct address. Liability still exist. Adv.Pradeep Kumar -Gurgaon Haryana 09871765000.

LAXMINARAYAN - Sr Advocate. ( solve problems in criminal cases. lawproblems@gmail.com)     18 October 2012

Once a case is filed u/s 138 you have to appear and defend it.

Rngage an expert advocate and you can win the case since most of NBFC file cases in similar manner.

Few advocates fight and win so case is dismissed others force the client to agree for compromise.


(Guest)

Dear Archie,

A very nice case to win. IDBI having filed case as against you for an amount committed deficiency in service. Complaint having been lodged u/s 138 of NI Act, you can file representation and seek bail and challenge the issuance of process. As you stated that the EMI fixed for making payment of installments was Rs.8138/- and the cherque amount is Rs.48,000/-, the same goes against the loan agreement.

After appearance file Cri. Revision Application before Court of Sessions u/s 397 & 399 challenging the issuance of process by the trial court establishing the facts stated above. Thereafter, proceed by issuance of legal notice for a complaint u/s 12 of Consumenr Protection Act as against IDBI before Consumer Forum for deficiency in service.

2 Like

R Trivedi (advocate.dma@gmail.com)     25 October 2012

-- Do not take the matter lightly.

 

-- IDBI gave you loan, there services over, no fault in their services, you paid 5 EMIs, that means out of 36 signed cheques 5 got cleared.

 

-- Now possibly another 5-6 EMIs got bumped, so IDBI put an amount of 48000 in one cheque. Normally when such EMI cheques are taken, then these cheques are post dated monthwise with proper EMI amount filled in. In your case possibly single security blank cheque issued along with other filled in cheques was used by IDBI for multi EMI bounce.

 

Not a straight forward case to win, because honoring of 5 EMI cheque links your liability. Yes IDBI made a mistake of clubbing 5-6 EMIs on single cheque, Notice, authority are technical issues which you must take up during trial.

A.V.Pattanashetti (Advocate)     26 October 2012

I AM A.V.PATTANASHETTI ADVOCATE FROM BIJAPUR IF U R READY TO PAY MY LEGAL FEES PLEASE CALL ME 09448035651

DAULAT DILBAUG (Problems related to money marriage matters.-dostnaye@gmail.com)     26 October 2012

Basically the liability is legal . The lower court may therefore overlook all other technical issues.

So you may have to go in appeal / revision for which you will ask to deposit FIFTY PERCENT  or even HUNDRED PERCENT money of the cheque value as per recent SC judgement.

And suppose you win this cheque bounce case your civil liability will remain.

R Trivedi (advocate.dma@gmail.com)     26 October 2012

Dear Money Matters, please advise under which section of crpc or any law the lower court may overlook all other technical issues. Where from the lower court gets such discretionary powers ?

DAULAT DILBAUG (Problems related to money marriage matters.-dostnaye@gmail.com)     27 October 2012

There is counter question that if the lower court do not follow any citation what action can be taken and any record of action from higher courts  in such matters other than revision or appeal.

Ashish Singla 098140 76600 (Cheque Victim's Lawyer. LUDHIANA (PB))     28 October 2012

Hi,

If u know exact law discussed in any particular citation , than no court can ignore it .

LAXMINARAYAN - Sr Advocate. ( solve problems in criminal cases. lawproblems@gmail.com)     29 October 2012

Courts should follow but what can be done if they do not follow.

1) In Mallya case the lower court disregarded the exact and detailed procedure issued by SUPREME COURT, it was not followed and no court is following.

The MALLYA  advocates prefered to get the NBW  cancelled instead of raising the issue that it should not have been issued at all.

 

2) Learned SENIOR ADVOCATE  Ranjit kumar raised a issue of HEARSAY pleadings in affidavits of complainants in criminal appeal  related to cheque cases which I have posted on this site elsewhere.

Supreme court realised the issue but left it for lower courts to decide.

Now in most of the criminal complaints under NI 138 complaints and affidavits are bases on HEARSAY pleadings still in routine precess are issued, even NBW issued and even accused are convicted.

3) The main questioner in this thread has raised the real legal locuna and what I have said that unless not contested forcefully lower courts ignore it.

R Trivedi (advocate.dma@gmail.com)     29 October 2012

I have already stated somewhere else that Lower Courts, with due respect to the magistrates, have a solid amount of incompetence around.. But the defense should ensure that all the valid points, technical or otherwise are on record, for future reference at appellate stage, if required.

 

The visible goof ups by lower court:

 

1. The case is not tried out in summary trial form, despite the act saying so. There is now written order also for converting into regular case.

 

2. Courts do not even check the complaint as per S.138.

 

3. Competence of complainant is not at all verified.

 

4. Courts feel that even after affidavit of complainant his examination in chief is mandatory infront of accused.

 

5. Courts even accept summoning of Banks by complainant, although not required, if not agitated by accused.

 

6. Courts allow any body, practically anybody from the company (in case complainant is company) side to be complainant and even accept his affidavit..., Hearsay

 

7. Courts feel that affidavit of complainant (in case of company) is the affidavit of company only, while affidavit is always natural person specific.... Hearsay

 

8. Courts feel that proprietorship firm is the company and allow complaint by any employee of even proprietorship firm.... Absolute Hearsay.

 

9. Courts permit substitution even if first complainant is alive, and even if he is the sole witness in the list... Hearsay

 

10. Court does not distinguish between holder and possessor, while holder is clearly defined in the act.

 

11. Courts do not appreciate evidence given by accused regarding drawing of the cheque.

 

12. Courts feel complainant has the absolute right to fill up the blank cheque.

 

13. Courts do not understand the difference between SPA / Authority letter and GPA to the extent that a person who has been given GPA after the date (period) of transaction has no evidentiary relevance as per Supreme Court order.

 

14. And despite Supreme Court ruling that onus on accused is not so high to prove his innocence, courts convict.

 

Infact few courts feel that bounced cheque and conviction are synonyms.. Wow !! Thats the competence of our lower courts.

--- Not all the trial courts do above, but at any given time you can always find the same goof ups again and again.

 

All these are stated not to offend the honorabel courts, this is with due respect to our judiciary, but then it is the fact, probably courts are over worked and overloaded and do not have time to read honorabel Apex / High Courts orders.

 

 

If a team of legal experts spend a week together and gist out the honorabel Apex Court orders on NI Act, then suitable guidelines can be framed and more than 50% (can be as high as 70%) cases will be out of system. Dishonesty is more from the complainant side in cheque bounce cases than accused side. The complainant approach is "I will teach you a lesson".

 

Incidentally cheque bounce and DV acts have flooded our system and both are patently misused.

1 Like

SANTOSHSINGH. (ADVOCATE sardarsena@gmail.com)     30 October 2012

Every body preaches but no body joins for proper action.

One advocate freind has filled a PIL at SC no body to support him.

Even law makers are suffering but not body wants to correct the faults.

BUT THE ACCUSED OF CHEQUE BOUNCE CASES HAVE CONFIDENCE AND STAYING POWER AND YOU CAN WIN ANY CHEQUE BOUNCE CASE.

R Trivedi (advocate.dma@gmail.com)     30 October 2012

It is not that SC is not aware, even law commission is also aware and given its report that lower courts are cogged with cheque bounce cases.

 

The restriction is general reluctance of higher judiciary to intervene in the work of lower courts, this is right also, othersie entire judicial process will collapse.

 

A general PIL is bound to fail, mainly because it is difficult to find fault in the act, act is ok, it is the interpretation of the same by courts, it is the casual approach of courts in taking cognizance that is flooding system. And the worst is there is no immediate remedy for for a false harassment to innocent accused.


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