Plz make Urgent Expert Comment - N.I. ACT - Criminal Law

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NANDKUMAR B.SAWANT.M.COM.LL.B.(MUMBAI),ADVOCATE

MOBILE.09325226691, 09271971251

e.mail.adv.nbsawant@yahoo.co.in

e.mail.nandkumarbs@sify.com

REGARDING THE N.I.ACT KINDLY NOTE THAT

1.C.A. RECEIVED FEES FOR HIS C.A. FIRM. RECEIPT ISSUED BY C.A.FIRM

2.REPAYMENT OF AMOUNT MADE BY CHEQUE OF H.U.F.

3.KINDLY NOTE THAT AMOUNT RECEIVED BY C.A.FIRM . AS AUTHORISED SIGNATORY IS THE SAME AND CHEQUE ISSUED BY SAME PERSON FROM H.U.F.ACCOUNT. THE COMPLAINENT CAN ISSUE NOTICE TO SAID PERSON WHO ISSUED CHEQUE AND HE MAY MENTION THE FACTS OF THE TRANSACTION IN LEGAL NOTICE OF DISHONOUR OF CHEQUE U.S.138 OF N.I. ACT.

4.KINDLY NOTE THAT COMPLAINENT SHOULD MAKE PARTY TO BOTH AUTHORISED SIGNATORY OF H.U.F. AND AUTHORISED SIGNATORY OF C.A. FIRM. WITH NAME AND ADDRESSES OF PERSONS WHO ISSUED AND SIGNED CHEQUE AND WHO ACCEPTED THE AMOUNT FOR C.A. FIRM.

5.THIS IS A COMPLICATED MATTER AND NEEDS EXPERT HANDLING. AS C.A. FIRM ARE WELL CONVERSANT WITH ALL LEGAL LAPSES AND INTENTIONALLY TRY TO PLAY MISCHIF AND PUT OTHER SIDE IN TROUBLE.

THIS CASE NEEDS EXPERT HANDLING THEN CAN SUCCEED.

IN CASE ANY URGENT HELP IS REQUIRED KINDLY SEND DETAILS .OR WRITE OR CALL.

WITH BEST REGARDS TO YOU YOUR FAMILY AND FRIENDS.

THANKING YOU

YOURS SINCERELY

NANDKUMAR B.SAWANT.M.COM.LL.B.(MUMBAI),ADVOCATE

pravin jain (proprietor) 08 December 2009

Resp. Sawant Saheb,

A lot of thanks for quick responce.

Sir, In CA firm, fees received by proprietor in his individual capacity, where as cheque issued / signed by Karta of HUF in representative capacity. Whether this distinction of status of HUF and Individual is applicable in N.I. ACT?

One point is also unanswered i.e. Return of fees for any reason /compromize shall be treated as legal inforceable other liability under N.I. Act ?

Raj Kumar Makkad (Adv P & H High Court Chandigarh) 08 December 2009

I also agree with Sawant

(Guest)

NANDKUMAR B.SAWANT.M.COM.LL.B.(MUMBAI)ADVOCATE

MOBILE.09325226691, 09271971251

e.mail.adv.nbsawant@yahoo.co.in

e.mail.nandkumarbs@sify.com

REGARDING THE C.A.FIRM AND H.U.F.STATUS KINDLY NOTE THAT

1.IT IS A FACT THAT CHEQUE WAS DULY SIGNED AND NAME DATE AND AMOUNT WAS WRITEN ON THE CHEQUE AND THE SAID CHEQUE WAS DEPOSITED AND DISHONOURED. HENCE OFFENCE UNDER SECTION 138 OF N.I.ACT.

2.COMPLAINENT HAS TO PROVE THAT THE SAID CHEQUE WAS ISSUED FOR LEGALY ENFORCEABLE DEBT.

3.AS C.A.FIRM HAS RECEIVED THE FEES AND FOR REFUND OF FEES THE AUTHORISED SIGNATORY OF SAID FIRM WHO IS ALSO HAVING ANOTHER H.U.F.ISSUED SAID CHEQUE WHICH WAS DISHONOURED.KINDLY NOTE THAT THE MOMENT THE CASE IS FILED THE COURT WILL ISSUE PROCESS U.S.138 OF N.I.ACT.

4.KINDLY NOTE THAT WHETHER IT IS LEGALY ENFORCEABLE DEBT OR NOT IS A POINT TO BE PROVED IN COURT AT THE TIME OF EVIDENCE.

KINDLY NOTE THAT INITIAL STAGE OF NOTICE DRAFTING OF THE MATTER ARE VERY IMPORTANT SO THAT ALL FACTS SHOULD BE COVERED.OR ELSE IT IS A RISKY MATTER.

KINDLY WRITE IN CASE ANY FURTHER HELP REQUIRED.

THANKING YOU

YOURS SINCERELY

NANDKUMAR B.SAWANT.M.COM.LL.B.(MUMBAI),ADVOCATE

Parveen Kr. Aggarwal (Advocate) 21 December 2009

The query seems to be ascertainment of the fact whether the issuance of cheque will be considered to be towards legally enforceable debt or liability or not. To ascertain this fact, it is necessary to make it clear what was the dispute due to which the fees was to be returned. Whether the fees was earned, i.e. whether the payment of fees was towards already accomplished act or whether it was an advance payment. If it was an advance payment of fees then issuance of cheque for its refund may be considered towards legally enforceable debt or liability but if the fees had already been earned and against it work had already been accomplished then it may not be towards any legally enforceable debt of liability. But for deciding this, the intention of both the parties in issuing cheque is to seen considering all the facts and circumstances.

pravin jain (proprietor) 28 December 2009

Thanks, You have understand the query and raised some questions to clear it properly.

(1) Whether the issuance of cheque will be considered to be towards legally enforceable debt or liability or not ?--- Yes , Please clear this issue.

(2) Whether the fees was earned, i.e. whether the payment of fees was towards already accomplished act or whether it was an advance payment.? ---- Yes Fees was partly earned and it was Part payment against Turn Key Project .It was an initial payment of 25 % of agreed Fees. Certain work was completed i.e. Formation of Pvt. Ltd. Company, Pre Investment Feasibility Report, selection of location , Application for Registration with Sales Tax Department, Detailed Project Report , For plantation of Jatropha a vast companion in rural area for Contract Farming with Farmers , advertisements in News papers and many meetings with their family members, visit to Mumbai and Delhi for selection of Machines and Govt. offices to finalise the turn Key assignment.

2)To ascertain this fact, it is necessary to make it clear what was the dispute due to which the fees was to be returned.? ---- In fact , fees was not returned . In between Director and CA it had been decided that the CA shall be the director of the company and act as CEO, instead of consultant. Exact the amount CA has earned shall be invested by him through his HUF to get the equal shares. But due the said demise of father of Director and illness of Father of CA the proposed plantation of Jatropha and purchase of Land for Factory could not completed on schedule time. since both were busy in hospitals and non of them could brought the capital for investment as they have decided. Blaming on each other started , CA promised to invest the amount in due course and issued three cheques payable in two months. But could not. At the time when CA's brother was hospitalised and was on VENTILATOR, Director asked to deposit the cheque for amount. And they quarrelled. Though they were friend since last 15 years.

(3) In these fact and circumstances please suggest . Mr PRAVEEN Advocate and other friends

Parveen Kr. Aggarwal (Advocate) 29 December 2009

In case the cheque was issued just to get share capital in the company and it is so recorded then, offence under section 138 of the N. I. Act is not made out.

pravin jain (proprietor) 29 December 2009

An application u/s 91 of cr pc made to call books of accounts, vouchers , documents , MOU between both the parties, other contracts and records. The director of the company filled an Affidavit that “ the Company has no records, MOU, Books of Accounts neither in his possession nor in control. So company can not produce any of these documents.”

Honbl. Judge rejected the same ,passed order in favour of Company “ That which is not in possession nor in control can not be ask to produce," relied on false Affidavit. Case is at evidence stage.

pravin jain (proprietor) 29 December 2009

An application u/s 91 of cr pc made to call books of accounts, vouchers , documents , MOU between both the parties, other contracts and records. The director of the company filled an Affidavit that “ the Company has no records, MOU, Books of Accounts neither in his possession nor in control. So company can not produce any of these documents.”

Honbl. Judge rejected the application u/s. 91 and passed order in favour of Company “ That which is not in possession nor in control can not be ask to produce, relied on false Affidavit. Case is at evidence stage.