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WHATSAPP 91-8075113965 (advocate)     04 October 2009

whether 420 ipc and 138 NI ACT will lie symultaneously ?

sirs,

when a cheque was presented in bank, it was  returned with an endorcement that " account closed".so, i have filed a complaint before magistrate court u/s 138 NI ACT r/w 420  IPC .Is there anything wrong with my decision ? court is of the openion that , since sec.420 ipc is included, sworn statement has to be taken .some of my friends informed me that sec .138 was enough , and as now 420 ipc is included , it will be difficult to prove " intention to cheat " fro the very begning itself.

plase advice me sirs !

also, give me rulings, helpful to the complainant .

whether i can "not press "/ take back my complaint and file fresh u/s 138 NI ACT ?



Learning

 43 Replies

Sarvesh Kumar Sharma Advocate (Advocacy)     04 October 2009

kumarpsalil,

don't wory u file the case under 138 & 420 ,then there is no problem ,

magistrate will summon to the accused in the section which is fit for the case (how ever 420 can not file with the n.i.act) .

there is a case law relatid yr  case ANWAR ALI PRO. SAMIRA EXPORTERS MUMBAI V STATE OF U.P.,ACC 2004(50)=JIC  2004(2)-659.

Advocate.S.A.Siddiq (Advocate)     04 October 2009

 If the cheque is issued with a view to cheat, in the case of its dishonour and non payment after notice of its dishonour, it would be an offence not only under section 138 of the negotiable instruments act but under section 420 of the Indian Penal Code also. I am of the considered opinion that prosecution under section 420 of IPC could be made out in case of dishonour of cheque.



Adinath@Avinash Patil (advocate)     05 October 2009

You case is maintainable u/s 138 of N.I. Act. Don't worry, you go through the following case,

 Account closed- N.I. Act section 138 -

1]Dishonour of cheque-cheque issued in discharge of debt incurred four years prior there to- cheque dishonoured with remark "Acount closed"-Non-payment of cheque amount dispite statutory notice of demamd -Debt acknowledged by drawer in his ballance-sheet-debt not barred by time And not being uninforceable-complaint under section 138 -maintainable-Quashing of such comlaint- not proper.

A.V.Murthy v/s B.S.Negabasavanna.

Criminal Appeal no.206/2002. decided on 08/02/2002.[S.C.]

2] Nepc micon & others v/s Megma Leasing Ltd.

Criminal Appeal No.481/1999. decided on 29/04/1999. [S.C.]

Raj Kumar Makkad (Adv P & H High Court Chandigarh)     05 October 2009

Agreed with Adinath and difficult to become agree with Sidique. Section 138 is sufficient to cover your matter.

RAKHI BUDHIRAJA ADVOCATE (LAWYER AT BUDHIRAJA & ASSOCIATES SUPREME COURT OF INDIA)     06 October 2009

I do agree with my all Ld. friends besides Mr. Siddiq.

yogesh (will tell you later)     06 October 2009

Withou listening to the actual facts and circumstances its difficult to tell but the intention of the O.P must be made at utmost care and diligence

Mohit Gupta (lawyer)     10 October 2009

dear friend under complaint 138 NI act is sufficient bt if  u want to prosecute under 420 also then u have to file a seprate complaint under sec420 CrPC. before the lerned megistrate

ballly jaiswal (Legal Advisor)     13 October 2009

section 420 is justified in ur complait as the cheque which was dishonoured on the reson that account against which such a cheque was issued was closed...so its clear on this point alone that the drawer has intention to cheat you as he had closed his account after issuing the cheque and without inquiring about the fact that all cheques which were issued encashed or not...and here u can also brought a complaint against the bank also as no bank can close any account for which any cheque book has been issued without recovering all not issued cheques and without making payment against the presented cheques if in the account ther ei balance...in ur case account was closed thats why cheque was not encashed...so it is implied that bank has made negligence in his duty while closing the account without recovering back cancelling all unissued cheques.


(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 SEC.138 N.I.ACT AND SEC.42O I.P.C.KINDLY NOTE THAT.

1.AS THERE IS LIMITATION PERIOD FOR FILING THE CASE UNDER N.I.ACT.SEC.138 ,YOU SHOULD GO AHEAD WITH THE COMPLAINT ALREADY FILED IN THE COURT. PROCESS WILL BE ISSUED UNDER SECTIONM 138 OF N.I.ACT.

2.AS FAR AS SEC.420 OF I.P.C. IS CONCERNED KINDLY GO THROUGH THE EXACT SECTION 420 OF I.P.C. AND YOU WILL COME TO KNOW THE INGREDIENTS. YOU ARGUE STRONGLY .COURT WILL DECIDE THE MATTER.

3.SECTION 420 OF I.P.C. IS A COGNIZABLE OFFENCE AND COMPLAINT CAN BE FILED AT POLICE STATION. BUT UNDER SEC.138 OF N.I.ACT COMPLAINT SHOULD BE FILED IN COURT ONLY. POLICE HAVE NO PART TO PLAY IN THE CASE EXCEPT SERVICE OF SUMMONS OR WARRANT OF THE COURT.PLEASE NOTE.

HENCE I SUGGEST THAT YOU MAY GO AHEAD WITH WHATEVER COMPLAINT YOU HAVE FILED AND COURT WILL ISSUE PROCESS UNDER SECTION 138 OF N.I.ACT. ONLY. THAT WILL SERVE YOUR PURPOSE AND YOUR CASE YOU CAN PROVE IN THE COURT BY SUBMITING EVIDENCE.

4.YOU MAY PREFER REVISION IN HIGH COURT IN CASE YOU WISH TO FOLLOW UP YOUR INTENTION FOR ADDING SEC.420 BUT KINDLY DO NOT  FOLLOW UP THE SAID REMEDY.IT WILL PROLONG THE MATTER AND NOT ADVISABLE IN THE INTEREST OF COMPLAINENT.PLEASE NOTE

IN CASE YOU NEED ANY HELP KINDLY SEND DETAILS OR CALL.

WITH BEST REGARDS TO YOU YOUR FAMILY AND FRIENDS

THANKING YOU

YOURS SINCERELY

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

 

anil lalla (advocate , mumbai)     14 October 2009

yes i agree with adinath. u cannot withdraw and file another case.continue the same......if offence u/s 420 is made out , accused can be convicted for both 420 and 138

bhupender sharma (advocate)     18 October 2009

Kumarpssalil, it correct both the both the provisions canot  be embarked in to motion as both are diffrent as well as provides seperate punishments and ingrdients fo the offence. It is clear that 420 of I.P.C. is difficult to prove since inception the deceitful intention is to be seen which can be assessed by going through the facts of the each case. Delhi high court  has sepecifically held in the year 2008-2009 that both the provisions can't n be put in motion as dishonour of cheque is a special offence and governes by the special Act of N.I Act therefore the penal Code Can not be put in motion. (Bhupender Sharma) Adv.     

 

 

 

 

 

 

 

 

Advocate.S.A.Siddiq (Advocate)     18 October 2009

 

Sec. 138 of N.I. Act & Sec. 420 of I.P.C.: When the cheque was dishonored for insufficient funds, such person issuing a cheque is liable for offence of Sec. 138 of N.I. Act but not u/s. 420 of IPC (1989 Cuttack Law Times 719).



A.P.Manoranjan (ADVOCATES & LEGAL ADVISORS)     18 October 2009

I agree with Mr.Siddiq.

Advocate.S.A.Siddiq (Advocate)     19 October 2009

Sec. 138 of N.I. Act & Sec. 420 of I.P.C.: When the Post dated cheque was dishonored for insufficient funds , such person issuing a cheque is liable for offence of Sec. 138 of N.I. Act and  420 of IPC (1993 Cri L.J.,2126 (Ker).



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