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Saptarshi Paul (Advocate)     10 March 2011

NI act 138 petition

Mr X had taken loan from Mr A on 18.10.2008 , Rs 80,000/- and promised to return by executing written document on 31/3/2009 .

But Mr X failed to returned the same on time and Mr A had send him a written request on 18/5/2010 to Mr X to return the money within 7 days.

Mr X had supplied some GRAVEL (stone) cost of Rs 30,000/- to Mr A and acknowledge the balance of Rs 50,000/- to be pay.

There after Mr X issued two cheques, of Rs 25,000/- each dated 25/12/2010 in favour of Mr A

Mr A present the cheque before bank on 15/2/2011 and both the cheque was returned due to insufficient of fund.

Mr A issued TWO separate Legal notice for each cheque and the said Two notices were acknowledged by Mr X on 25/2/2011.

Now Mr A wishes to file petition Under NI 138.

Now the question is that shall Mr A file to separate petition or one petition as two separate legal notice was send for two bounced cheque.

 

Regards



Learning

 9 Replies

Sarvesh Kumar Sharma Advocate (Advocacy)     10 March 2011

Mr A file to separate petition ,

for each instrument,

cheque no. differ.

adv. rajeev ( rajoo ) (practicing advocate)     10 March 2011

when two notices are issued then he has to file two seperate complainants.  If he had issued only one notice for both the cheques within the limitation period then he could have filed only one complaint.

A Truthseeker ( A retired Indian citizen)     10 March 2011

a case is instituted when cognizance is taken. taking cognizance depends upon complaints. a complaint owes its causes of action to a notice. here there are two causes of action being two notices so i agree that there should be two cases by filing two complaints.

ADV Rajesh KASRIJA (ADVOCATE)     10 March 2011

219. Three offences of same kind within year may be charged together—(1) When a person is accused of more offences than one of the same kind committed within the space of twelve months from the first to the last of such offences, whether in respect of the same person or not, he may be charged with, and tried at one  trial for, any number of them not exceeding three.

(2) Offences are of the same kind when they are punishable with the same amount of punishment under the same section of the Indian Penal Code (45 of 1860) or of any special or local law:

Provided that, for the purposes of this section, an offence punishable under Section 379 of the Indian Penal Code (45 of 1860) shall be deemed to be an offence of the same kind as an offence punishable under Section 380 of the said Code, and that an offence punishable under any section of the said Code, or of any special or local law, shall be deemed to be an offence of the same kind as an attempt to commit such offence, when such an attempt is an offence.

   220. Trial for more than one offence—(1) If, in one series of acts so connected together as to form the same transaction, more offences than one are committed by the same person, he may be charged with, and tried at one trial for, every such offence.

(2) When a person charged with one or more offences of criminal breach of trust or dishonest misappropriation of property as provided in sub-section (2) of Section 212 or in sub-section (1) of Section 219, is accused of committing, for the purpose of facilitating or concealing the commission of that offence or those offences, one or more offences of falsification of accounts, he may be charged with, and tried at one trial for, every such offence.

(3) If the acts alleged constitute an offence falling within two or more separate definitions of any law inforce for the time being by which offences are defined or punished, the person accused of them may be charged with, and tried at one trial for, each of such offences.

(4) If several acts, of which one or more than one would by itself or themselves constitute an offence, constitute when combined a different offence, the person accused of them may be charged with, and tried at one trial for the offence constituted by such  acts when combined, and for any offence constituted by any one, or more of such acts.

(5) Nothing contained in this section shall affect Section 71 of the Indian Penal Code (45 of 1860)

 ILLUSTRATIONSS to sub-section (1)

   (a) A rescues B, a person in lawful custody, and in so doing causes grievous hurt to C, a constable in whose custody B was. A may be charged with, and convicted of, offences under Sections 225 and 333 of the Indian Penal Code (45 of 1860).

   (b) A commits house-breaking by day with intent to commit adultery, and commits, in the house so entered, adultery with B's wife. A may be separately charged with, and convicted of, offences under Sections 454 and 497 of the Indian Penal Code (45 of 1860).

   (c) A entices B, the wife of C, away from C, with intent to commit adultery with B, and then commits adultery with her, A may be separately charged with, and convicted of, offences under Sections 498  and 497 of the Indian Penal Code (45 of 1860).

   (d) A has in his possession several seals, knowing them to  be counterfeit and intending to use them for the purpose of committing several forgeries punishable under Section 466 of the Indian Penal Code. A may be separately charged with and convicted of the possession of each seal under Section 473 of the Indian Penal Code (45 of 1860).

   (e) With intent to cause injury to B. A institutes a criminal proceeding against him, knowing that there is no just or lawful ground for such proceeding and also falsely accuses B of having committed an offence, knowing that there is  no just or lawful ground for such charge, A may be separately charged with, and convicted of, two offences under Section 211 of the Indian Penal Code (45 of 1860).

   (f) A with intent to cause injury to B, falsely accuses him of having committed an offence, knowing that there is no just or lawful ground for such charge. On the trial, A gives false evidence  against B, intending thereby to cause B to be convicted of a capital offence. A may by separately charged with, and convicted of, offences under Sections 211 and 194 of the Indian Penal Code (45 of 1860).

   (g) A with six others, commits the offences of rioting grievous hurt and assaulting a public servant endeavouring in the discharge of his duty as such to suppress the riot. A may be separately charged with, and convicted of, offences under Sections 147, 325 and 152 of the  Indian Penal Code (45 of 1860).

   (h) A threatens B, C and D at the same time with injury to their persons with intent to cause alarm to them, A may be separately charged with, and convicted of, each of the three offences  under Section 506 of the Indian Penal Code (45 of 1860).

   The separate charges referred to in ILLUSTRATIONSS (a) to (h) respectively, may be tried at the same time.

 ILLUSTRATIONSS to sub-section (3)

   (i) A wrongfully strikes B with a cane. A may be separately charged with, and convicted of, offences under Sections 352 and 323 of the Indian Penal Code (45 of 1860).

   (j) Several stolen sacks of corn are made over to A and B, who knew they are stolen property, for the purpose of concealing them, A and B thereupon voluntarily assist each other to conceal the sacks at the bottom of a grain-pit. A and B may be separately charged with, and convicted of offences under Sections 411 and 414 of the Indian Penal Code (45 of 1860).

   (k) A exposes her child with the knowledge that she is thereby likely to cause its death. The child dies in consequences of such exposure. A may be separately charged with, and convicted of offences under Sections 317 and 304 of the Indian Penal Code (45 of 1860).

   (l) A dishonestly uses a forged document as genuine evidence, in order to convict B, a public servant, of an offence under Section 167 of the Indian Penal Code (45 of 1860). A may be separately charged with, and convicted of, offences under sections 471 (read with Section 466) and 196 of that Code.

 ILLUSTRATIONS to sub-section (4)

   (m) A commits robbery on B, and in doing so voluntarily causes hurt to him. A may be separately charged with, and convicted of, offences under Sections 323, 392 and 394 of the Indian Penal Code (45 of 1860).

ADV Rajesh KASRIJA (ADVOCATE)     10 March 2011

this is sec 219 & 220 of CR.P.C

plz go through b4 going on conclusion

Saptarshi Paul (Advocate)     11 March 2011

thanks to all Ld seniors and friends for providing me such knowledge

kindly send me the Format of NOTICE which is to be served by the court to the accused along with the Petition copy u/s 138 NI

 

regards

Bharath.T. (Criminial And Civil)     11 March 2011

Summons are sent to the Accused, not NOTICE.

You just have to file an PROCESS application in the court with the accused address, Post Cover and Stamps.

The Court will send the summons to the accused, once the accused appears before the court he will given copies of the complaint, and vice-verse.


Regards

DEFENSE ADVOCATE.-firmaction@g (POWER OF DEFENSE IS IMMENSE )     12 March 2011

Mr Rajesh  views are the correct postion of law. SC has even directed that if separate cases are filed though in defferent context the same should be clubbed with heavy costs on the complainant.

2) It is also in the interest of the complainant since the documents for both will be same.

3) Given the details of the case it is very week  case and slim chances for conviction  on number of counts than one.

CHANDDAN TANDON (AS A CRIMINAL LAWYER)     12 March 2011

if the both cheques are returned by bank on  one return memo,

then complinant  can  file the one complaint case for both dishonored cheques....

and if seprate  return memo given by bank for each cheque  

then seprate complaint case will be file by complinant 


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