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Sandeep Chadha (CEO)     26 May 2010

Citation u/s 138

I had given goods to accused no. 1 who represented a proprietory firm. 

Accused no. 1 issued a personal cheque to discharge the payment.

Accused no. 2 is the Proprietor of the firm that has taken the goods,

Are both accused liable under section 138 ?



Learning

 11 Replies


(Guest)

if the accused is a proprietor and cheque issued in his personal account, then in this case both are liable. since the proprietorship its self indicates that the proprietor is a sole owner of the firm. you may go ahead

Niikhil C. Shirgaonkar (Self Employed)     26 May 2010

Only drawer of the cheque can be sued u/s 138 of the N.I. Act,1881. So you can sue the Accused No.1 for dishiniur of the cheque. However make a specific contention in your notice and complaint that the Accused No. has accepted the legal liability of the of the said supply of goods to the Accused No.2.

If you want to sue Accused No.1&2 for the said supply you have to opt the way Revovery Suit under C.P.C.

Pankaj Mehta (Advocate)     27 May 2010

whether the issued cheque was signed by Accused no.2 in capacity of proprietor or it was signed in his personal capacity?? it should be clarified first, u should see whether the cheque belongs to a current account or a saving account?? thereafter conclusive opinion can be given

MOHANA SUNDARAM (Advocate High court Madras. M-9840908555)     27 May 2010

i think you can sue drawer of the cheque i.e. first accused if he stands as a guarantor for the proprietor ans issued such cheque under the capacity of guarantor.

 

REFER 2002 SCC(cri) 1342

ICDS Vs Beena

LAXMINARAYAN - Sr Advocate. ( solve problems in criminal cases. lawproblems@gmail.com)     29 May 2010

With due respect to all the contributors , no case is made out u/s 138. You can file civil suit for recovery of money.

If you try to file criminal case first no process will be issued and it will fail in scrutiny.\

If process is issued the accused can file criminal cases against the complainant for perjury and even forgery which will be more serious than your 138 case.

Dharmesh Manjeshwar (Advocate/Lawyer)     31 May 2010

Had there been a writing that Accused No. 1 had issued the cheque from his personal account to clear liability of Accused No. 2 you could have gone ahead with a 138 complaint .... Meet a good criminal lawyer and consult him to file a case of cheating and criminal breach of trust against both the Accused .... but this may not suffice to get back ur money ... to get back ur money u'll need to file a civil suit ....

LAXMINARAYAN - Sr Advocate. ( solve problems in criminal cases. lawproblems@gmail.com)     31 May 2010

This is just a civil case for money claim , no case can be made out under criminal law.

If filed a criminal case and by chance a procees is issued , forgery and  PERJURTY CASE will be slapped against the complainant. The complainant has also to reply numrous querries such as proof of purchse of goods alleged to be sold and its existance in his stock , registration of buisness , various taxation registrations and even accounts  and taxation returns.

Which may throw out can of worms.

As defense advocates we are doing it and even taken such complainant to highest court.

It was only during the British times that a creditor was king not now.

Dharmesh Manjeshwar (Advocate/Lawyer)     31 May 2010

How can a forgery and perjury case be made out ?????????????? what is the forgery and where is perjury ... complainnt is just making out ingredients of cheating and criminal breach of trust in his complaint ...

In this case Accused No. 1 approached the Complainant as representative of the Company .... Complainant forwarded goods on his request which was accepted by Accused 2 who is Propreitor and Accused No. 1 issued cheque on his personal account for clearing liability of Accused No. 2 ........ Complainant has just to aver in his complaint that both the Accused were hand in glove and had intentions of cheating him ... Just create ingredient of the offence of cheating and criminal breach of just .... there is no forgery .... no falsity ...... If the Complainant has documentary proof of goods supplied to Accused No. 1 which finally was delivered to Accused No. 2 ...... then surely the complainant can make out ingredients of cheating and criminal breach of trust ....

LAXMINARAYAN - Sr Advocate. ( solve problems in criminal cases. lawproblems@gmail.com)     31 May 2010

Instead of putting arguments here try and help the person to file a criminal complaint.

Dharmesh Manjeshwar (Advocate/Lawyer)     31 May 2010

I am doing exactly that  ... it seems u feel offended ... Understand that we are here to help by giving our opinions and advises ... what u said was ur opinion/advise and what i said was mine ... and the one seeking advise here is free to act ...

Arup (UNEMPLOYED)     31 May 2010

mr lawproblems

first complete yr study.

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