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MANOJ HARIT (LAWYER)     19 August 2013

Ni 138

Dear Members,

Please provide answers to the following queries - 

1. The Power of Attorney of the complainant is not registered. Weather it will help the accused?

2. Half of the cheque amount has been paid in cash. But the complainant has filed complained for full amount. Now what defense the accused should adopt? Whether to state this fact or not?

Thanks in advance for the early and detailed reply by Experts.  



Learning

 6 Replies

Kolla Gangadhar (Practicing Advocate since 1986)     19 August 2013

You take objection that complaint filed by unregistered   G.P.A. is not maintainable under criminal law, the complainant  has  to present in the court to record his sworn statement  before the court and it should be signed by him before the Magistrate., Half of the cheque amount is paid you take that plea, you produce documentary evidence , or paid before third persons to examine them as defence witness. You file discharge Petition before the Magistrate before Trial is being conducted.

MARU ADVOCATE (simple solutions for criminal legal problems -- yourpunch@gmail.com)     20 August 2013

l) All civil laws are not applicable for criminal trial. So for POA you can only cross him / her and can prove that evidence is without personal knowledge.

 

2) Cheque law is for punishment for issue of dud cheques so part payment is sure conviction.

 

Very recently SC has convicted  and even  REVERESED HC..Judgements. in such cases.

 

3) This is a summons case and  so there is no provision for DISCHARGE.

 

THERE ARE MANY OTHER TECHNICAL DEFENSES AVAILABLE USE THEM.

SACHIN AGARWAL (ADVOCATE)     20 August 2013

The Criminal Complaint under section 138 NI Act can be filed by the Power of Attorney Holder and since no matter relating to any immovable property is involved, therefore Section 17 of the Registration Act does not apply and the registration of POA  is not required.

Further, in case the half payment has been made under an agreement, the case under section 138 NIA is not maintainable.

 Please check Arvind Manekalal Tailor v/s State of Guj. CCC 2001(1) Guj 99

MARU ADVOCATE (simple solutions for criminal legal problems -- yourpunch@gmail.com)     20 August 2013

2001 GUJ HC is old case.

 

Now SC in 2010 and again in 2013 has confirmed that once cheque is admitted statutory presumptions come into play.

 

judgment  rendered  by  a  three-       Judge Bench in Rangappa vs.  Sri  Mohan,  reported  in  [2010(11)SCC        441

                 The judgment clearly held that the presumption under Section

       139  of  the  Negotiable  Instruments  Act,   1881,   includes   the

       presumption of the  existence  at  a  legally  enforceable  debt  or

       liability.   That presumption is required to be honoured, and if  it

       is not so done, the entire basis of making these provisions will  be

       lost.

SUPREME COURT ;       July, 2013.

R Trivedi (advocate.dma@gmail.com)     22 August 2013

1. Power of Attorney Holder can be complainant, but if he has deposed on behalf of some one, then he must have personal knowledge of transaction.

 

2. If the part payment is made before dishonor, and if the same can be proved and the demand is of full value, then no conviction.

R Trivedi (advocate.dma@gmail.com)     22 August 2013

Read S.56 of NI Act, this has been used in the past by courts to acquit the accused in case of part liability settled before dishonor. It is dishonest on the part of complainant to ask for full amount when half is paid to him.


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