section 138


One of my friend stolen my 03 blank sign cheques whether i was abroad from my home & was threatning for money of Rs 3lakh & when i ignore to his threatning he shut a case against me u/s 138 in the year of 2015. I boldly challange the case now its almost completed 05years but neither he file evidence nor he attemp court on case date . My advocate allowed 205 & he is appearing on behalf of me but the complaint person not proceeding his case. I asked my advocate to dismissed the case but he is not ready to dismiss it My question is can this case will dismiss or not ?
 
Reply   
 
Lawyer

Your query is not very clear and vague for consideration and formation of an opinion and oblige.

Either reframe the facts and post it another thread or seek professional services of another local lawyer.

 
Reply   
 


Retired employee.

It appears that your friend has used that  3 stolen cheque and presented for payment and on bouncing, he has filed a complaint under Sec.138 which is pending before the court, and the complainant is not evincing interest and the case is being adjourned (Your version)

Now when the matter is in court, let the court deliver judgment and now Govt is fixing a time frame within which such Sec.138 complaint has to be disposed of.

Members are not competent to decide whether the case will be dismissed by the Judge in the future or not.

 
Reply   
 
Legal Enthusiast

In the stated set of facts, if the complainant is not appearing on the dates fixed then an application under Section 256 CrPC may be moved by the accused person.

Regards

 
Reply   
 
Advocate

What was the reply you had furnished to the statutory notice?

 
Reply   
 

Dear sir The complaint person pleading in his notice that i have taken 3lakh cash & the date which he has furnished at that time i was abroad,he also gave the statement he have evidence to proof the case but he does not file a single evidencs to court . Totally false case.
 
Reply   
 
Advocate

What prevents you from funishing the specific information sought? It is the pre-requisite for an action under Section 138 NI Act that you should have been served with the notice demanding payment of the  debt you allegedly owed to the complainant.

138 Dishonour of cheque for insufficiency, etc., of funds in the account. —Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provisions of this Act, be punished with imprisonment for 19 [a term which may be extended to two years], or with fine which may extend to twice the amount of the cheque, or with both: Provided that nothing contained in this section shall apply unless

(a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier;
(b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within thirty daysof the receipt of information by him from the bank regarding the return of the cheque as unpaid; and
(c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice.

Explanation.— For the purposes of this section, “debt or other liability” means a legally enforceable debt or other liability.]

 
Reply   
 
Lawyer

It is the allegations levelled by complainant in his complaint against which the Trial Court had issued summons to you.

Contents of notice shall form part of complaint, which are to be looked at the time of cross-examination of complainant and final arguments.

Did you file any police complaint for theft of 3 signed cheques by the complainant ? If so, what is the progress / proceeding in the case ?

The amount of Rs. 3 lakh stated to have been given to you in "cash" is again a point to be verified by your lawyer in cross-examination of complainant such as source of income, whether the complainant used to keep so much amount in his house, at what time / place, whose presence the money was given to you when you were abroad, any written receipt etc. etc. 

 

 
Reply   
 

Sir case is totally cross examination completed but the complaint person could not file evidence .now he is approching my advocate for compromise.
 
Reply   
 
Advocate

The facts posted are inconsistent and hence less than convincing. No meaningful suggestion is possible if you play hide and seek with the  facts. 

 
Reply   
 

LEAVE A REPLY


    

Your are not logged in . Please login to post replies

Click here to Login / Register  


 

  Search Forum








×

  LAWyersclubindia Menu

Indian Evidence Act     |    x