cpc

need opinion on my case (negotiable instruments act, section 138)


Hello,

My financing partner (Complainant) has accused me in a case where he has acquired and used 3 cheques of my close relative (Accused #2) and framed a false case based on forged evidences.

Complainant has no legal documentary evidence in the form of agreement except a forged letter mentioning it a "loan" however it was a partnership based on mutual understanding.

Also there are a lot of inconsistencies in the documents he has attached and the forged signature is very clearly identifiable.

The cheques in question are of Accused #2's current account and I'm in no manner related to his account or his business. We're simply relatives.  The cheques were returned for "stop payment by drawer".

What I'd like to know mainly is that how much am "I" liable in this case where the cheques do NOT belong to me. And what necessary steps should I take to get out of this situation.

Thanks & Regards.
 
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Legal Consultant/Lawyer

Mr Ezzy,


The details you mentioned herein about the "case" is incomplete.


IF : -


1)  The case filed by the complainant is for the Offence U/S. 138 of N.I.Act.,  only;


2) You are not the party to the cheque;


3) You are not related with the Account; 


Then, how the case is 'Registered' against you as "ACCUSED -1".


Please furnish the full details about your case, then we can guide you. 


 

 
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Practicing Lawyer

hello...  section it self very clear about the same...


so far n.e.act sec-138 is concerned, if you are not signed the cheque or the is not belongs to you ... you were not liable for the same.

 
Reply   
 

Sorry for incomplete details. Here's a detailed overview of the case:


 


My partner (complainant) and I started a business based on mutual understanding, without signing any documentary agreements or setting up a company officially.



I had prepared a cash flow for a year of which I received a certain (35% of total) amount in cash & cheques from him, for which I had provided duly signed receipts on my company letterhead. However, after only 4 months of our partnership he suddenly stopped communication (and the finance ofcourse), which I later understood was a part of the plan.



Now he has implicated me in a case under 138NI and 420IPC where he has somehow acquired and used 3 cheques of my relative (Accused #2) and framed a case based on forged evidences. Also, he has forged a letter mentioning it a ''loan'' with interest of 18% p.a whereas it was a 70:30 partnership.


As I mentioned, there are a lot of inconsistencies in the documents he has attached and the forged signature is very clearly identifiable.




The only signatory of the cheques in question is Accused #2. I'm not involved with Accused #2 in any business operationally or financially. We're just relatives. The cheques he has acquired were for an entirely different purpose.



What I'd like to know is:



1. Is it that 138 NI applies to Accused #2 and 420 IPC to me, OR both to both of us OR both to Accused #2 who is the only signatory of the cheques?



2. If the documents and signature are indeed proven to be forged, will I be acquitted from the case from both 138 NI and 420 IPC or just 138?



Many thanks in advance.

 
Reply   
 
Lawyer

whose signature was forged? Why you have been made an accused. Give details of allegation made in the complaint against you.

 
Reply   
 
Advocate

No 


sec. 138 of N.I.Act  and 420 of I.P.C can't run jointly . if magistrate has takin cognizance  than go to high court you will get relief.


actually i m not getting your point as you are saying cheque is not belonging to you you can't prosecuted under N.I.Act


so give full detail

 
Reply   
 

Yes, the checque does NOT belog to me, but he has still dragged me in. He has made up a story that the LOAN was guranteed by Accused #2 and the cheques are for the same.

 
Reply   
 
Legal Consultant/Lawyer

Dear Ezzy,


You are seeking opinion about:


" What I'd like to know is:



1. Is it that 138 NI applies to Accused #2 and 420 IPC to me, OR both to both of us OR both to Accused #2 who is the only signatory of the cheques?



2. If the documents and signature are indeed proven to be forged, will I be acquitted from the case from both 138 NI and 420 IPC or just 138? "


But  Mr. Ezzy, you untill didn't clarified or mentioned:-


(a) The Complaint in question filedby the Complainant, is whether with the allegation for the offence   ONLY   "U/S. 138 of N.I.ACT";


(b) OR, the Complaint in question is a Private Complaint Filed U/S.200 of Cr.P.C., against You as (A-1) and your relative as (A-2) with the allegation for the offence " U/S. 420 of IPC R/W. Section 138 of N.I. Act "  


If you want the correct answer from us, then please  clearly mention and reply to the above (a) & (b) 


But meanwhile for the clatification of your doubts:-


(i) If the situation is as (a) of above, the Comlaint in question is wrongly registered against you as (A-1), and you can get "QUASH" the complaint against you, by filing a " Criminal Revision Petition" in the Hon'ble High Court of your State.


OR otherwise,


(ii) If the situation is as (b) the complaint in question, is maintainable against you as (A-1), and your relative as (A-2).  But, subject, to the "Evidence", "Relavency of Documents filed" Circumstances and on Facts of the case, thereby you can't escape from the liability & resonsibility.   

 
Reply   
 

On the court summon there is NO mention of 420 IPC probably because the criminal court does not consider civil cases?


However, in his lawyers True Copy, both are mentioned - 138 NI and 420 IPC.

 
Reply   
 
Legal Consultant/Lawyer

Dear Ezzy,


(i)  Sec. 420 IPC is a criminal Offence not a Civil one in nature.


(ii) Even though,  the Complaint is with the allegation of both the Offences, there is a chance for you to Proceed to the Hon'ble High Court for "Quashing of Complaint"  as clearly told by our learned brother Mr. Arora.


(iii) For "Dishonour of Cheques ONLY",  the Complainant can file a Case ONLY for the offence  U/S.138 of N.I. Act  and that too,  ONLY against the person, who issued the cheque in question and not against any third person.


(iv) If, the Complainant filed a "Criminal Case/Criminal Complaint"  for the the offence of Dishnour of Cheque(Sec. 138 of N.I.Act) Read With for the offences of Cheating, fraud and  misappropration (Sec. 420 of I.P.C),  against the person who issued the cheque, then complaint is not maintainable in the eyes of law.  There are several Judgement of different High Courts on this issue.    


(v) So for with concerned to your case:


If the Complaint in question is filed by the complainant as mentioned above in (iv) not only against A-2, but by involvig you as A-1, for the act of cheating and fraud played by both of you against him, the Complaint is maintainable and rightly Registered by the Hon'ble Magistrate.   Forged Documents, Forged Signature, Evidence are all secondary, you can disprove all of those if it is, as mentioned by you. 

 
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