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Bhaskaran Advocate (Lawyer)     14 June 2008

Legal Notice u/s 138 of N.I. Act

As for as I know just a simple notice informing the dishonour of cheque is sufficient in a Cheque dishonour case. 


The complaint too need not be elaborate and matters which are of evidential nature need not be put in complaint.


Even the list of witness need not be put.


In evidence we have to bring in  all the facts and documents any new fact not said in notice or complainant.


Many lower courts are satisfied on the above and the Accused are convicted.


Whether in HIGH COURT a Accused can succeed on the ground that the notice and complaint does not cover the full fact.  In the evidence the complainant has brought new facts (not contradictory), and that the complaint be dismissed.


Are there any citations where the Hon'ble Court's support the Complainant.


Are there any citations where the Hon'ble Court's support the Accused.


Presently what is the legal position?


Can any of the club members please answer this, I will be thankful.



Learning

 14 Replies

amit gupta_lawyer (lawyer)     14 June 2008

well complaint under 138 negotiable instrument act there are certain statutory guidlines which need to be followed like :-



  • to give demand notice with in one month of cheque bouncing

  • to file complaint with in one month from the notice period expires


demand notice/legal notice has to clearly mentioned the details of the cheque bounced and specific demand should be there regarding the same. mentioning of details of transactions in the notice on the basis of which cheque was issued apart from the issues mentioned above is not mandatory but better for the complaint as the intention of complainant would be transparent by this.


the complaint has to mention the transaction on the basis of which cheque was issued to complainant and the list of witnesses would also be there.


 

Bhaskaran Advocate (Lawyer)     14 June 2008

Thanks for response.


The Accused being acquited how will the High court go about it.


The complaint is having the details of money lent and the cheque received and the dates of transaction. 


Presumption under 139 of N.I. Act can be easily drawn.


In evidence I have included a Stamp Paper and a Pro-note as supportive documents which fact I have not mentioned in complaint.   But there are no contradictory versions either as for the complaint and Affidavit evidence.  Neither have I mentioned the List of witnesses in complaint.


Whether not mentioning List of witness in complaint is fatal to the case before the High Court.


 

ESTHERPRIYA (Practising Advocate)     14 June 2008

No not like that. But it is essential to state possible witnesses to
be examined has to be stated in the complaint like bank manager, person
who are included in the transaction etc.


Similarly the cheque
signed by the accused will alone stand to speak your case unless the said negotiable
instrument, the cheque is disputed by the accused.

and the High Court will see it in the same manner whether the Negotiable Instruments Act is strictly complied or not.

Bhaskaran Advocate (Lawyer)     15 June 2008

Yes, Padmapriya you are correct and It is only now that I am adding the List of witnesses in all my complaints,  but in this particular case I have not put the List of witnesses and I am in a dilemma whether section 204(2) is applicable to N.I. Act cases.


As we know N.I.Act is quasi-criminal and quasi-civil in nature.  Hence in my view putting List of witnesses is not necessary in a complaint, as we never go about to examine these witnesses at all.  It has been for a formality sake to comply this 204(2) section of Cr.P.C.


Not one citation I was able to get into hand on the relevancy of what will happen if List of witnesses is not put in a complaint in r/w N.I. Act. 


I also found no Supreme Court judges  commenting  into this aspect about the list of witnesses, what they have said is... the courts below should not go deep into the drafting of complaint but should see if the complaint is satisfactory enough to register it and issue process for summons.   Hence I am of the view that putting List of witnesses in a complaint is not NECESSARY. 


In High Court  this will not be fatal to the case when a opposite lawyer draws the attention to Judges to this flaw in the drafting of complaint quoting section 204(2) of Cr.P.C.


I will argue that 204(2) Cr.P.C. will apply only to offences committed under I.P.C. Act and not N.I. Act.   Hence putting List of witnesses which we never go for examining is not necessary.   I will further say that since the Accused has accepted the signature and issuing of the cheque  the presumption under section 118 of NI Act goes against the Accused that he has parted with the cheque for consideration.  Hence examining further witnesses for having given money is not necessary.   It will only be necessary to examine the witnesses if the Accused says that the cheque does not belong to him and that the signature is not his and that he does not know the complainant


Thanks for the reply.


 

Guest (n/a)     15 June 2008

Sir, Please tell me it is necessary for complainnant to present each date for hearing in case 138 N.I.Act please advise me.

amarendra (lawyer)     15 June 2008

no, it is only when the case is posted for hearing for exm of complt.

Bhaskaran Advocate (Lawyer)     15 June 2008

Yes, you have to be deligent and it is your case, hence take care. You have to be present on each and every hearing date. By absenting yourself your complaint will be dismissed for default of non-appearance.

On the other hand if your lawyer is present then he can either file a exemption application for your absence or just make his presence felt and see that the complaint is not dismissed for default of non-appearnce.

There are Magistrates who dismiss the case taking the opportunity of non-appearance of either the complainant or his lawyer.

In case of dismissal of default you can always get the case back restored by appealing against it in Sessions Court itself. You need not go to High Court as some think. I have restored back such cases filing the appeal in a Sessions court when others were knocking the door of High court.

Srinivas.B.S.S.T ( Advocate)     15 June 2008

Yes you can file a revision on dismissal orders of complaint in the sessions court itself. If the complainant is absent on the adjounment date you can seek condonation of his absence by filing a 256 Cr.P.C petition.

ESTHERPRIYA (Practising Advocate)     15 June 2008

It is not essential to present for each hearing before the
magistrate court, your counsel can be present and he can very well file
256 petition pleading to dispense with your presence at the hearing but
it should be done only for bonafide reasons.


 

ESTHERPRIYA (Practising Advocate)     15 June 2008

SIr, Look the accused is acquitted for what reason and while filing
petition before the appellate court against acquittal you must be able
to draw an inference that the learned lower court judge has done
something wrong and has exceeded its jurisdiction. Then alone you will
be get a favourable judgment.


At the same time because of not
stating the witnesses in the complaint will not be the whole reason for
the acquittal of the accused. Thus search for other points too to make
your case much stronger.


You can make an argument that the
procedural or clerical error in the complaint will not render the whole
proceeding as void and it can be corrected in the due course and can
aske the High Court to consider this equitable principles of law.

Srinivas.B.S.S.T ( Advocate)     16 June 2008

Had non submission of list of witnesses along with the complaint the
Magistrate ought to have returned the complaint causing the same as
objection before taking the same on file. As our friend Padmapriya said
try to implore on other reasons also.

Bhaskaran Advocate (Lawyer)     16 June 2008

Thanks Padmapriya and Srinivas for replies.


The Accused in my case has been acquitted on some flimsy ground.  There are errors after errors in his judgement to facts on hand.  The judgement arrived is prejudice one.  The judgement is a subjective one and not objective.  Also the opposite lawyer and the prejudiced judge never tredged on this fault in the complaint.  That is the inserting of list of witness in complaint.  It is an easy and fit case for the High court to convict the Accused.


At this stage myself and other  advocates had some heated arguments on this point.   My contention was in an N.I. Act case List of witness is not necessary since the offence does not fall under I.P.C.   My colleague's contention was that when you are filing complaint u/s 200 you have to comply section 204(2) also, otherwise the complaint is liable to be dismissed.  I went on to say that the Hon'ble Judges at High Court will never raise this point at all. 


Under these circumstances I have put this point in this forum. 

Anil Agrawal (Retired)     25 January 2009

A complainant filed a cheque bouncing case against the company and only 1 director as against 4. This director died. The complainant wanted to substitute another director as an accused. The magistrate dismissed this petition saying the person is not an accused in the complaint. After three years of dismissal of this petition, another petition is filed asking that the person should be asked to "REPRESENT" the company. The complainant did not go in for appeal against this dismissal.  Meanwhile, magistrate changed. New Magistrate has accepted petition and in is zeal has said that the person should ne included as an ACCUSED. He has gone so far as to mention the fact of the previous dismission of the petititon and still has done it. Does he have the inherent power to do so and can he changed the prayer from REPRESENT to ACCUSED. When the accused went in to the Sesssions Court against this order, his petition was dismissed. The result is that he now has to stand trial. What is going on? What is the remedy? Go to the High Court? When will such substitution end? Is there a provision for substituion in a criminal case?

R Trivedi (advocate.dma@gmail.com)     11 October 2011

There are lot of technical grounds in favor of accused. So all genuine holder of the cheque should be careful from day one, on the other hand all accused who feel harrased should take personal interest and appoint good counsels to come out of this mess. For details contact: advocate.dma@gmail.com


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