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Naveen (Private)     10 October 2009

Summons on sec 138

 Dear Experts,

Any help on my problem will be much appreciated.

My mother was a honorary director in small firm started by my relatives. About a year ago she had signed on a blank cheque with no date on them. This cheque was given as surety to Mr A from whom the firm had borrowed some money. Mr A has in turn given this cheque as a payment to Mr B for some transaction not related to the firm. 

It appears Mr B has submitted this cheque recently which bounced due to lack of funds and now he has issues summons to my mother as she was the signatory on the cheque. I am trying to find out about the date of cheque of submission and all those things to see. But  in the meantime, I'd appreciate any help on how to go about this case. 

Also, my mother was only a honorary director and she has not taken any payments for the role and she hasn't had any role in the running of the firm. Will that make any difference to this case?

Many thanks



Learning

 13 Replies

AEJAZ AHMED (Legal Consultant/Lawyer)     10 October 2009

Dear Naveen,

Could you clearly explain this :-

" and now he has issues summons to my mother as she was the signatory on the cheque"

becase reply required by you  from us is completely depends upon this only. 

 

1 Like

Naveen (Private)     10 October 2009

Mr Ahmed, thanks for your reply.

The summons have been sent by a court which I supposed is based on a complaint registered by Mr B. I haven't seen the summons as yet as it was sent to the firm's address and we haven't yet accepted it. 

Hope that clarifies. 

Many thanks

 

RAKHI BUDHIRAJA ADVOCATE (LAWYER AT BUDHIRAJA & ASSOCIATES SUPREME COURT OF INDIA)     10 October 2009

Dear Naveen,

Tell me whether ur mother had signed as designated signatory or in person?

1 Like

PJANARDHANA REDDY (ADVOCATE & DIRECTOR)     10 October 2009

DEAR NAVEEN,

PLEASE LET US KNOW ABOUT THE CHQ WHEN IT GAVE TO A,HER CAPACITY  AS OF THE SIGNATORY ETC.,

1 Like

Naveen (Private)     10 October 2009

Mr Buddhiraja, Mr Reddy, thanks for your reply.

I think it was in the capacity of a designated signatory.

I am sure the bank account was in the name of the Firm for which she was a signing authority apparently.

PJANARDHANA REDDY (ADVOCATE & DIRECTOR)     10 October 2009

WETHER SHE IS STILL CONTINUEING AS SIGNTORY OR WHEN SHE OUT FRM THE FIRM

Naveen (Private)     10 October 2009

To my knowledge, she has not explicitly resigned from the firm but, the firm itself has been dissolved now. Just to add a little more background (if it helps) when the firm was started , my mother was told, she will be the one of 3 directors with 2 other cousins and she will be signing authority along with the Managing Director (who is my uncle). I believe the summons have been issued to both my mother and my uncle as the cheque has their signatures on it. 

AEJAZ AHMED (Legal Consultant/Lawyer)     10 October 2009

Dear Naveen,

Your multiple queries ae now coming to some contradicts: -   

" About a year ago she had signed on a blank cheque with no date on them."

" I think it was in the capacity of a designated signatory."

" I believe the summons have been issued to both my mother and my uncle as the cheque has their signatures on it "

Further, neither you trying to metion all the facts step by step and clearly,  nor you are fully sure about what you are saying; as,  

" I am trying to find out about the date of cheque of submission and all those things to see "

Therefore, as per me, First Try to collect all the correct informations, then come to us for correct and helpfull suggestion, otherwise it will be difficult us to guide you also.  

PJANARDHANA REDDY (ADVOCATE & DIRECTOR)     10 October 2009

DEAR NAVEEN,

PLEASE NOTE::

The main object of the section 138 of Negatiable Instrument act 1881 is to inculcate faith in the efficacy of banking operations and credibility in transacting business on negotiable instruments.HERE IT SHOWS THAT THERE IS LEGALLY ENFORCEBLE DEBT TO 'A',THERE AFTER IT WAS GIVEN TO 'B' SINCE IT IS A NEGOTIABLE INSTRUMENT.(THE HOLDER IN DUE COURSE).

IN MY OPINION THE OFFENCE  U/S 138 ATTRACTS TO YOUR MOTHER .

 

 

Adinath@Avinash Patil (advocate)     10 October 2009

Dear Naveen,

Don't worry  tell me all facts clearly, your mother got only summons, she should apear in the court  on  date which is on summons along with advocate & release on bail.

If your has signed cheque before one year, whether counter part is with you mother?. If your mother proved that she haven't given in the name of B, then  there is good case of acquittal.

chaitanya v mahurkar (advocate)     13 October 2009

hi naveen,

the cheque in question was given as a surety to Mr. A, and not to Mr.B. Therefore there is no legal laibility created. the cheaque was given by mr a to mr b for payment of his debts. there is no transaction between your mother and Mr.B.

Need not worry, no liability on your mother towards B.

Appear in court and fight. good case inhand, and if properly present shall win. i endorse views of mr. A Patil.

Sukhija (Advocate)     19 October 2009

no notice was served on ur mother? no reply given of these facts? ur mother has to face trial. lawyer has to prove liability of ur mother during trial.

Anil Agrawal (Retired)     22 October 2009

 Cheque was signed by your mother as a director of a firm. Then she alongwith other partners and the firm cannot escape prosecution. What is of paramount importance is:

It is necessary to specifically aver in a complaint under Section 141 that at the time the offence was committed, the person accused was in charge of, and responsible for the conduct of business of the company. This averment is an essential requirement of Section 141 and has to be made in a complaint. Without this averment being made in a complaint, the requirements of Section 141 cannot be said to be satisfied.

Go to a lawyer. The information that you provide you is too sketchy for such a serious matter.


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