Criminal Trident Pack: IPC, CrPC and IEA by Sr. Adv. G.S Shukla and Adv. Raghav Arora
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No offence u/s 138 of n.i. act- security cheque

Page no : 2

R Trivedi (advocate.dma@gmail.com)     21 October 2012

The above order also does not absolutely state that S.20 is applicable on cheque, its a prima facie right, that means complainant cannot just rely on S.139 and S.20 alone.

 

My question is: Cite a single order wherein complainant admitted that the cheque was blank and it was filled up without the consent of the drawer...and case was won based on S.20. Not eve a single order.

 

I have also could not found out any order wherein it is ruled by the Apex or High Court that the cheque is the stamped instrument. Accused can always take the plea that it was a blank cheque (with proof), filled up without his consent and S.20 is not applicable on cheque. The remedy with the complainant is civil and not criminal under S.138

 

Not even a single trial court counsel of accused, talks of non applicability of  S.20 on blank cheque. Even you soundung a very good supporter of accused case, write as below.

Now telling that NI SECTION 20 is not applicable is not correct.

 

It is absolutely correct and as per government financial bill that cheque is not a stamped instrument. If the legislature wanted any negotiable instrument, then they would not have put word stamped, they would have not stated the amount covered by the stamp.

 

Consider following

Blank Cheque is filled by complainant for any amount, and he says it was a friendly loan, accused brings some proof that when given it was blank and no subsequent consent was given, now if court convicts the drawer that clearly means neither the counsel of accused did his homework nor the learned magistrate thought about the case.

 

It is my personal humble suggestion to all the accused and counsels of accused If the cheque is blank when given, put on record point blank that it was blank and S.20 is not applicable.

 

I give you one more example of honorabel High Court (not able to recall offhand), complainant as usual stated that it was a filled up cheque on receipt, accused proved that it was blank when given, trial court convicted the accused citing S.20. Honorabel High Court blasted the trial court stating that it is not the case of complainant that it was a blank cheque, trial court illegally exceeded it is jurisdiction by coming out with its own theory. 

 

No court of law even Supreme Court can interpret the Statue differently if the meaning is straight forward and in simple English. Judges cannot force their personal views against the statue, even if they are logical.

 

Take one more example, the S.138 says :Cognizance can be taken within 6 months of date of drawn or validity of the cheque". Please read S.46 Delivery, the date of delivery is termed as date of drawn. If we leave aside the PDC for time being, any cheque even undated (or blank) is a useless piece of paper if delivered 6 months ago from the date of drawn.

 

Read the UK law on cheques, it very clearly states that the date of drawn for the undated cheque shall be date of delivery, our NI Act is not so specific on this except S.46. It is unlawful on the part of trial courts even to take cognizance by financial institution wherein Blank cheques are taken years back.

 

As you have rightly pointed out earlier, most of the time accused can come out technically, but then most of the accused 100% rely on their counsel and you know most of the counsels do not really give proper attention to the cases. and unfortunately accused gets stuck when he has limited scope to defend.

 

Recently one gentle man asked in this forum can the examination in chief be changed ? It cannot be. The affidavit which comes with the complaint is the master evidence, in absence of any other witness (in most cheque bounce cases complainant with Banks is the only witness) the case has to fail. Chaning examination in chief in cheque bounce cases means extending the limitation.

 

Pl keep doing the good work, you have the sound knowledge and keep thrashing the dishonest complaints.

 

 

 

 

 

LAXMINARAYAN - Sr Advocate. ( solve problems in criminal cases. lawproblems@gmail.com)     22 October 2012

People come on this site particularly accused of CHEQUE BOUNCE cases to solve their problems , so no use of long discussions for how and which manner  the courts should use the law.

 

Openly the law of NI 138 is being abused all over the country and even the MEMBER OF PARLIAMENT like  AZRUDDING AND MALLAYA are its victim still they even can not move the system to correct the anmolies in actual practice.

 

The accused is suffering here and now and what is needed is advice which can be used instantly.in the present system.

AND WE HAVE EXPERIENCE AND CONVICTION THAT WHATEVER WAY LAW IS BEING ACTUALLY USED IN THE SYSTEM STILL ANY ACCUSED CAN COME OUT OF IT.

 

 

 

R Trivedi (advocate.dma@gmail.com)     22 October 2012

Not the court, how the counsel should present the case !!

 

And for your information both Mr Azaharruddin and Mr Mallya are not victims, their cheques got dishonored, it was not a blank cheque. They were the cheques issued voluntarily to clear the liability.  Victim is a person who issued the blank cheques some 5-10 years back as security and it was filled up by complainant. 

 

I would request all concern to go through the judgements of honorable Judge Hema of Kerala High Court (just google search them), these judgements are absolutely for accused and put the law in right perspective.

YOGESHWAR. (ADVOCATE HIGH COURT-criminal /civil -youract@gmail.com)     23 October 2012

It is not for the advocate to see what is wrong or right, he should contest so that his / her client wins.

ACCUSED138 (NONE)     27 October 2012

Pls suggest for given below details:

Accused running a business, and get loan from market, maximum amount in cash and given blank cheque, interest rate were very high.

Now accused was missing and cases stand u/s 138. Family member report to police for missing, no other complaint was lodged.

How can save to accued from these.

Regards

kapoorsatish (n/a)     06 November 2012

Sir. Can you please give details og judgement wherein it has been mentioned by SC that ( a) blank cheque given as security. no offence u/s 138 of nia  (b) blank signed check filled by the complainant with different ink, amount filled without consent of accused, no case u/s 138

S.K.KAPOOR

YOGESHWAR. (ADVOCATE HIGH COURT-criminal /civil -youract@gmail.com)     06 November 2012

Judgements as a rule can not be applied to all cases like math problem.

You have to first build up the case in lower court by proper cross and defense evidence than only the court can order examination of cheque date.

Law is simple and clear that it is your cheque bounced from your account and you did not pay after notice.

 

Now it the defense advocate who finds ways out to demolish the case but for that complete foundation has to be prepared.

R Trivedi (advocate.dma@gmail.com)     06 November 2012

 

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION

Joseph Vilangadan. v. Phenomenal Health Care Services Ltd. & Anr.

CRIMINAL WRIT PETITION NO.2243 OF 2009

CORAM : J.H.Bhatia, J.

DATE : 20th July, 2010


 

9 In the present case, there was no liability or debt towards the complainant/respondent when the cheque was issued by the contractor. From the language of the agreement as well as allegations made in the complaint, it is clear that said cheque was issued as security deposit and not towards the discharge of any debt or lone. The learned counsel for the respondent contended that in M.S.Narayana Menon @ Mani (Supra), evidence was led by the parties and on the basis of evidence, the Supreme Court came to conclusion that the cheque was issued as a security and, therefore, Section 138 would not be applicable. According to the learned counsel, in this case only process has been issued and the parties are yet to go to the trial and, therefore, said authority in M.S. Narayana Menon @ Mani (Supra) would not be applicable. It would be difficult to accept this contention. Ratio in M.S.Narayana Menon @ Mani (Supra), is applicable to the facts of the present case. When on the face of the complaint itself, it is clear that the cheque was issued as a security deposit and not towards the discharge of any debt or other liability, case under Section 138 is not made out. When the complaint itself does not make out criminal case to issue the process, to force the accused to undergo trial would be clear misuse of the process of the Court and this should not be allowed. The Additional Sessions Judge while rejecting the revision application dealt with the liability of the contractor on the basis of terms of the contract and the cheque. The learned counsel for the respondent also contended that the matter was referred to arbitrator and arbitrator also held that the contractor is liable to pay on the basis of that cheque. As far as civil liability of the contractor/petitioner is concerned, it is not necessary to look into the same in present matter. Suit was filed in the year 2006 and the arbitrator was also appointed in 2008, therefore, civil liability of the parties against each other can be looked into the said litigation or arbitration proceedings. In the present matter, we have only to see whether the offence under Section 138 of the Negotiable Instruments Act is made out or not. The learned Revisional Court did not address to this question properly before rejecting revision application.


See if above order fits in your case... A ruling by Supreme Court cannot be over ruled by any court (other than the Higher Bench of Supreme Court), a ruling by High Court of the trial court jurisdiction, also has to be followed by the trial court, trial court is not bound by the ruling of other High Courts.. But generally any relevant ruling by any of the High Courts is not ignored by any magistrate. So build up your case, give sound reasoning along with citation, it helps, if not at the trial court level, then certainly at Higher Appellate court level. 



kapoorsatish (n/a)     26 November 2012

Can you please provide the details of SC Judgement wherein SC said that if the signaures and amount, drawers name are in different ink/handwriting. case does not fall u/s 138 of NIA

DAULAT DILBAUG (Problems related to money marriage matters.-dostnaye@gmail.com)     26 November 2012

Most of the cases under NI 138 are filed on the basis of blank cheques given and later date and amount is filled by the complainant.

 

So most of the accused takes the plea that cheque was for security purpose but this plea is not accepted in most of the cases by any court.

 

The concept given by SC  for security cheque is that the particular cheque was not given for any transection.

 

So EMI cheques can nort qualify for security cheque concept. Please look for any other solid defense.

kapoorsatish (n/a)     29 November 2012

Dear Sir

can u pl give case number or full judgement of court, my son is facing 138 case, in his case lender company has stamped namr of compny, filled 3 times the amount due. next date is 10/12, so early reply is requested

kapoorsatish (n/a)     12 December 2012

pl give case number and complete judgement

ACCUSED138 (NONE)     30 April 2013

SIR, To save to accused from misuse of cheque by money lender, please refer/provide the judgement about below: According to recent Judgement by supreme court "A cheque filled by someone else with different ink (where just sign of accused is there , rest filled with different ink) ......... Such cheque is no cheque at all (Google judgement). Now most of the security cheques(if not all) are blank cheques with accused sign only .... I think it is a great defence supporting above judgement. Regards

Jitendra Gupta (CS)     09 September 2013

Who all are eligible persons to draft legal notice under section 138 of Negotiable Instruments act?

Can a Company Secretary draft legal notice, if he knows the provisions?

Which section allows or disallows for this??

R Trivedi (advocate.dma@gmail.com)     11 September 2013

Please read the NI Act sections with respect to notice and also read S.200 of the Indian Contract Act


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