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Anil Agrawal (Retired)     30 October 2008

NI Act

What the position of a complaint under NI Act? Can the complainant be prosecuted for giving incorrect and false information? For instance, if the name of a person who is not a director is included as an accused director, can the complainant be prosecuted? Is it compulsory for the complaint to be viable that notice under Sec. 138 should be issued to ALL the directors?



Learning

 4 Replies

N.K.Assumi (Advocate)     31 October 2008

Not only under NIA but under other act also any person making any malicious prosecution against any person are liable for prosecution for making malicious prosecution. As it is not the duty of any person to move the procees of the court for malicious purpose.

Sankaranarayanan (Advocate)     31 October 2008

yes mr nk assumi  is correct .

Anil Agrawal (Retired)     01 November 2008

Is this judgement applicable in Mumba?



Courts not to issue summons in cheque bounce case Sunday, January 13, 2008 20:44 [IST]


Madurai: Madras High Court bench has ruled that lower courts could not issue summons to the accused in cheque bounce cases under the Negotiable Instruments Act, without recording the oral statment of the complainant and witnesses.


Justice S Nagamuthu, disposing a writ petition, said issuing summons is a serious judicial act. Hence courts of law cannot dispense with the recording of statements as it will offend the legislative intent.


Disagreeing with the decisions of Judges of Karnataka, Orissa and Bombay in this regard at earlier occasions, Justice Nagamuthu said, "the findings rendered by them did not relfect the correct legal position."


The term "evidence" found in Sec 145 could not be equated to the expression "Statement" under Sec 200 of the CrPC.


The Indian Evidence act also differentiates oral and documentary evidence. As per the act, the enactment applied to all Judicial proceedings but not to affidavits presented in the courts.


"The affidavit filed before a court can never be treated as evidence unless any other law permits the same," the Judge said. The Law commission, in its report, also had stated that sworn statements should be made in courts as they had their own legal consequences. 


Akhilesh Maurya (Private legal practice)     01 November 2008

The position of the complaint under the N.I. Act is something like half Civil and half Criminal. If the name of the person included as an accused director but in fact he is not a director of the company then the court will see whether the accused person was acting as the director of the company or not. The Hon,ble Court also see the intention of the complainant. If the conclusion comes that the accused person is not the director but was showing himself as the director and the company was acquainted with the act of the accused person then the complainant will not liable for malicious prosecution otherwise he is liable.


It is not compulsary for the complainant to give notice to all directors. if he only gives a single notice under N.I.Act to the Company it deemes to be serverd the notice on all directors. The Company itself is a legal person and can be sued.


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