Friday, April 19, 2019

Nyaya Salahalu

On 18th April I gave a TV live Program named NYAYA SALAHALU in connection with legality of PROMISSORY NOTE watch the video

https://www.youtube.com/watch?v=Ku7Vc_Uhnhk

Sunday, April 14, 2019

FREE LEGAL ADVICE




ALL  are welcome to my blog.  You can get free legal advises on the following matters 1) Family disputes, 2) property disputes, 3) money lending, 4) insolvency, 5) 138 N.I. Act. 6) all civil and criminal disputes.  Consumer Disputes, writing of Wills, agreements, etc.,  

WILL DEED.



WILL - DEED is one of the important document in one's life.  Because this the one and only document to be executed in the last time a person's life in his last minute.  Many people does not recognize the  importance of Will Deed, due to which after the demise of the head of family the children (Successors) will face many problems.  It is always better to execute a WILL DEED when a person attains the age of 65 or more. so that the children will not suffer in succeeding the properties earned by the head of family.

WHO SHOULD WRITE WILL DEED: any person who is a major and having sound mind is entitled to execute a Will Deed. The persons who is having movable, immovable properties, cash, ornaments or any type of assets shall write a WILL DEED so as to transfer the same to his family members/Legal Representative.

HOW TO WRITE A WILL:  WILL DEED is a simple deed it can be written on any paper, but it should be attested by two major witnesses.
IS IT COMPULSARY TO REGISTER A WILL DEED: NO it is not compulsory to register a will deed even a WILL DEED can be executed on a white paper.  But I sincerely advise the parties to register a WILL DEED to avoid future complications.

WHY REGISTRATION:  Because  WILL DEED should be presented in many Government and Municipal offices to get mutate the names of Legal Representatives.  In the Government offices to avoid unnecessary litigation and to have perfection and to avoid risk usually prefer a Registered WILL DEED.  So it is always safe to register a WILL DEED.

What is a Will?
According to the Indian Succession Act, the will is a legal wish of the person writing it, of how he wants his property to be distributed after his death. A will is a document made by a testator (a person making a will) before his death, where he expresses how he wishes his property to be distributed after his death. The document becomes legally enforceable only if it is written and signed by the testator and at least two witnesses who have seen the testator signing the will. It comes into effect only after the death of the testator and has no significance during his lifetime. Though it is not compulsory to register a will, the testator may choose to register it with a Registrar or Sub-Registrar of the district court under whose jurisdiction the property lies. It is always advisable to register a will as registering gives it a legal backing in case of any disputes which may arise in the future, such as disputes regarding the validity of the will. The testator can also choose to keep the will in safe custody. The will can be withdrawn at any time.




Who can make a will?



Any person who is a major and has good mental health can make a will. A will obtained by force or undue influence will not be valid as it has not been made by the free will of the testator. A person can make a will at any time during his lifetime, provided he is a major. There is no restriction on age or the number of times a will can be made.



Purpose of a Will



It is important for a person owning any property to draft a will because it gives him control over the distribution of his property. This enables a smooth transfer of property to the people the testator wishes, after his death. If the testator has minor children, he can provide for their care in his will. Succession of property often becomes a point of conflict among relatives or successors of a dead person. A will can help avoid such conflicts. The testator may also wish to donate his property to charity or any institution. He would not be able to do this in the absence of a will. In case a person dies without creating a will, the laws relating to succession of property will take effect, which will decide who will receive shares in the property and the percentage share that they will receive.
  
What property does the will cover?
  
The will covers only such property of which the testator is the sole owner. In case of property jointly owned by the testator with any other person, consent of all the parties jointly holding the property is required to execute the will.


How does a will come into force?

 The testator appoints a person called as an executor to look after the property in the will after his death. If not, the court appoints an executor. On the death of the testator, the appointed executor can apply to the district court for an order confirming the authority of the executor to take care and distribute the property. The district court will study the will and if the legal heirs of the testator have no objection to the will, the court will authorise the executor to deal with the property as per the provisions of the will.
  
we are providing online will services. for details call us at

(we highly respect our clients.  we do not disclose the personal details of our clients to anybody. )
  
 9848647145 or  6281412621- or watts app to the first number.- Sarma

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Friday, October 26, 2018

Land Mark Judgment of Supreme Court of India on 497 of IPC

Supreme Court - Daily Orders
Joseph Shine vs Union Of India on 8 December, 2017
     WP(Crl.)No.194/17                                      1

     ITEM NO.39                               COURT NO.1                       SECTION PIL-W

                                    S U P R E M E C O U R T O F          I N D I A
                                            RECORD OF PROCEEDINGS

                                    Writ Petition (Criminal) No.194/2017


     JOSEPH SHINE                                                                  Petitioner(s)

                                                      VERSUS

     UNION OF INDIA                                                                Respondent(s)



     Date : 08-12-2017 This petition was called on for hearing today.


     CORAM :
                                    HON'BLE THE CHIEF JUSTICE
                                    HON'BLE MR. JUSTICE A.M. KHANWILKAR
                                    HON'BLE DR. JUSTICE D.Y. CHANDRACHUD


     For Petitioner(s)                  Mr. Kaleeswaram Raj, Adv.
                                        Mr. Suvidutt M.S., AOR

     For Respondent(s)


                             UPON hearing the counsel the Court made the following
                                                O R D E R
Heard Mr. Kaleeswaram Raj, learned counsel for the petitioner.
In this petition, preferred under Article 32 of the Constitution of India, the petitioner has challenged the constitutional validity of Section 497 of the Indian Penal Code and and Section 198(2) of the Criminal Procedure Code. The said provisions read as under:
Signature Not Verified “497. Adultery.—Whoever has sexual intercourse Digitally signed by CHETAN KUMAR Date: 2017.12.08 17:51:08 IST Reason: with a person who is and whom he knows or has reason to believe to be the wife of another man, without the consent or connivance of that man, such sexual intercourse not amounting to the offence of rape, is guilty of the offence of adultery, and shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both. In such case the wife shall not be punishable as an abettor.”
198.Prosecution for offences against marriage (2) For the purposes of sub- section (1), no person other than the husband of the woman shall be deemed to be aggrieved by any offence punishable under section 497 or section 498 of the said Code: Provided that in the absence of the husband, some person who had care of the woman on his behalf at the time when such offence was com- mitted may, with the leave of the Court, make a complaint on his behalf.” Learned counsel submits that the said provisions have been treated to be constitutionally valid in three Judgments, namely, Yusuf Abdul Aziz vs. State of Bombay, 1954 SCR 930 = AIR 1954 SC 321; Sowmithri Vishnu vs. Union of India and Another, (1985) Suppl.SCC 137 and V. Revathi vs. Union of India and Others, (1988) 2 SCC 72. He has also drawn our attention to the decision in W. Kalyani vs. State through Inspector of Police and Another, (2012) 1 SCC 358 wherein a two-Judge Bench of this Court, after referring to the provision, observed thus:
“10. The provision is currently under criticism from certain quarters for showing a strong gender bias for it makes the position of a married woman almost as a property of her husband. But in terms of the law as it stands, it is evident from a plain reading of the Section that only a man can be proceeded against and punished for the offence of adultery. Indeed, the Section provides expressly that the wife cannot be punished even as an abettor. Thus, the mere fact that the appellant is a woman makes her completely immune to the charge of adultery and she cannot be proceeded against for that offence.” On a perusal of the judgment in Yusuf Abdul Aziz's case, it seems that the provision was upheld on the basis of Article 15(3) of the Constitution.
In Sowmithri Vishnu's case (supra), the Court while relying on the principles laid down in Yusuf Abdul Aziz's case opined that the provision is intra vires. For the said purpose, the Court has expressed the view thus:
“Law does not confer freedom upon husbands to be licentious by gallivanting with unmarried woman. It only makes a specific kind of extra- marital relationship an offence, the relationship between a man and a married woman, the man alone being the offender. An unfaithful husband risks or, perhaps, invites a civil action by the wife for separation. The legislature is entitled to deal with the evil where it is felt and seen most : A man seducing the wife of another. Mrs. Chidambaram says that women, both married and unmarried, have changed their life style over the years and there are cases where they have wrecked the peace and happiness of other matrimonial homes. We hope this is not too right but, an under-inclusive definition is not necessarily discriminatory.
The alleged transformation in feminine attitudes, for good or bad may justly engage the attention of the law-makers when the reform of penal law is undertaken. They may enlarge the definition of adultery to keep pace with the moving times. But, until then, the law must remain as it is. The law, it is, does not offend either Article 14 or Article 15 of the Constitution. Incidentally, the demand of the petitioner that sexual relationship of a husband with an unmarried women should also be comprehended with in the definition of 'adultery' is a crusade by a woman against a woman. If the paramour of a married woman can be guilty of adultery, why can an unmarried girl who has sexual relations with a married man not be guilty of adultery? That is the grievance of the petitioner.” In V. Revathi's case (supra), learned Judges took the family as the platform and gave emphasis on the matrimonial unit and thereafter observed:
“5. Section 497 of the Indian Penal Code and Section 198(1) read with Section 198(2) of the Criminal Procedure Code go hand in hand and constitute a legislative packet to deal with the offence committed by an outsider to the matrimonial unit who invades the peace and privacy of the matrimonial unit and poisons the relationship between the two partners constituting the matrimonial unit. The community punishes the 'outsider' who breaks into the matrimonial home and occasions the violation of sanctity of the matrimonial tie by developing an illicit relationship with one of the spouses subject to the rider that the erring 'man' alone can be punished and not the erring woman. It does not arm the two spouses to hit each other with the weapon of criminal law. That is why neither the husband can prosecute the wife and send her to jail nor can the wife prosecute the husband and send him to jail. There is no discrimination based on sex. While the outsider who violates the sanctity of the matrimonial home is punished a rider has been added that if the outsider is a woman she is not punished. There is thus reverse discrimination in 'favour' of the woman rather than 'against' her. The law does not envisage the punishment of any of the spouses at the instance of each other. Thus there is no discrimination against the woman in so far as she is not permitted to prosecute her husband.
A husband is not permitted because the wife is not treated an offender in the eye of law. The wife is not permitted as Section 198( l) read with section 198(2) does not permit her to do so. In the ultimate analysis the law has meted out even handed justice to both of them in the matter of prosecuting each other or securing the incarceration of each other. Thus no discrimination has been practised in circumscribing the scope of Section 198(2) and fashioning it so that the right to prosecute the adulterer is restricted to the husband of the adulteress but has not been extended to the wife of the adulterer. “ Prima facie, on a perusal of Section 497 of the Indian Penal Code, we find that it grants relief to the wife by treating her as a victim. It is also worthy to note that when an offence is committed by both of them, one is liable for the criminal offence but the other is absolved. It seems to be based on a societal presumption. Ordinarily, the criminal law proceeds on gender neutrality but in this provision, as we perceive, the said concept is absent. That apart, it is to be seen when there is conferment of any affirmative right on women, can it go to the extent of treating them as the victim, in all circumstances, to the peril of the husband. Quite apart from that, it is perceivable from the language employed in the Section that the fulcrum of the offence is destroyed once the consent or the connivance of the husband is established. Viewed from the said scenario, the provision really creates a dent on the individual independent identity of a woman when the emphasis is laid on the connivance or the consent of the husband. This tantamounts to subordination of a woman where the Constitution confers equal status. A time has come when the society must realise that a woman is equal to a man in every field. This provision, prima facie, appears to be quite archaic. When the society progresses and the rights are conferred, the new generation of thoughts spring, and that is why, we are inclined to issue notice.
Issue notice, fixing a returnable date within four weeks. Dasti, in addition, is permitted.

            (Chetan Kumar)                                                (H.S. Parasher)
             Court Master                                               Assistant Registrar
 

Sunday, August 5, 2018

Bar Council of Telangana State Elections and Resulg.




Bar Council of Telangana –   

Elections to the Members 2018 1

Bar Council of Telangana – Elections to the Members 2018 It is hereby notified that the Election to the Members of the Bar Council of Telangana will be held on Friday, the 29th June, 2018, between 10-30 a.m. and 5-00 p.m. The voting shall take place at the premises of the respective Bar Associations where the Courts are located in the State of Telangana or such other places notified by the Election Officer.
BAR COUNCIL OF THE STATE OF TELANGANA :: HYDERABAD LIST OF CONTESTING CANDIDATES
S.NO.     NAME OF THE CANDIDATE              PLACE
1 LAKSHMAN KUMAR, KASUGANTI     KARIMNAGAR
2 SATHYARAM, JALAKAM                         HYDERABAD
3 SANJEEVA RAO, SIRIKONDA WARANGAL
4 VENKAIAH, PAMBA KHAMMAM
5 NARASIMHA REDDY, A HYDERABAD
6 M.A.SALEEM RANA HYDERABAD
7 ADHI VENKATESHWARA RAO HYDERABAD
8 LINGAIAH, JELLA HYDERABAD
9 VIJENDER REDDY, N HYDERABAD
10 KIRAN, PALAKURTHI HYDERABAD
11 RAM PRASAD, T HYDERABAD
12 SURENDER REDDY, S HYDERABAD
13 RAMESH, P HYDERABAD
14 SATYANARAYANA, KOLLI KHAMMAM
15 SURESH GOUD, BALASANI PEDDAPALLY
16 SATYANARAYAN RAO, BASA KARIMNAGAR
17 VENU MADHAV, K HYDERABAD
18 PRATAP REDDY, C HYDERABAD
19 JAYAKAR, B WARANGAL
20 RAMA KRISHNA, EDEM DEVARAKONDA
21 MAHENDRA PRASAD WARANGAL
22 M.A.K. MUKHEED HYDERABAD
23 RAVINDRANATH, BALLA HYDERABAD
24 SHYAM SUNDER, P NALGONDA
25 ZULFAQUAR ALAM HYDERABAD
26 WAHEED AHMED HYDERABAD
27 MOHAMMED MAHEMOOD BODHAN
28 YADILAL, A KALWAKURTHY
29 VISHNUVARDHANA REDDY, P HYDERABAD
30 GOVARDHAN REDDY, PULIGARI HYDERABAD
31 DILIP, TALLURI KHAMMAM
32 KRISHNA KUMAR, NAGULURI HYDERABAD
33 MALLESH YADAV, BARLA HYDERABAD
34 RAVINDER REDDY, K HYDERABAD
35 MOHAMMED ANSARUDDIN HYDERABAD
36 ARUN KUMAR, P HYDERABAD
37 SUNIL GOUD, K HYDERABAD
38 VIJAYA KUMAR, YELLAPRAGADA HYDERABAD
39 HARISH, L HYDERABAD
40 JANARDHAN, DUSSA WARANGAL
41 HANMANTH REDDY,T HYDERABAD
42 SUJATHA, PASHAM HYDERABAD
43 LAKSHMINARAYANA, Y HYDERABAD
44 VINOD KUMAR, P HYDERABAD
45 VENKAT YADAV, CHALAKANI HYDERABAD
46 SRINIVAS, GATTU HYDERABAD
47 MADHUSUDHAN RAO, DHANWADA HYDERABAD
48 TIRUMALA RAO, B KHAMMAM
49 SRINIVAS, KONA HYDERABAD
50 LAXMA REDDY HYDERABAD
51 SRINIVASA REDDY, CHALLA HYDERABAD
52 BHUJANGA RAO, N HYDERABAD
53 PHANINDRA BHARGAV, M HYDERABAD
54 ARUN KUMAR, L HYDERABAD
55 THIRUPATHAIAH, C NAGARKURNOOL
56 SRINIVASULU, KONDALA HYDERABAD
57 ANANTHASEN REDDY, AKULA HYDERABAD
58 BABU RAO, P HYDERABAD
59 CHENNA VEERAIAH, G HYDERABAD
60 KONDA REDDY, B HYDERABAD
61 RAJENDER REDDY, G HYDERABAD
62 NARENDER GOUD, N MAHABOOBNAGAR
63 VENKATA RAJU KUMAR, P KARIMNAGAR
64 RAJENDER, M NIZAMABAD
65 GIRIDHAR RAO, A HYDERABAD
66 JAGAN MOHAN REDDY, B SHADNAGAR
67 MOHAN RAO, GANDRA HYDERABAD
68 SHASHIKANTH, MADUPU HYDERABAD
69 CHENNA REDDY, R HYDERABAD
70 HARINATH, N HYDERABAD
71 RAMESH GUPTA, S HYDERABAD
72 SHANKER, B HYDERABAD
73 RAMA RAO, GOKUL HYDERABAD
74 SHARADA,G HYDERABAD
75 SARALA REDDY, V HYDERABAD
76 JITHENDER REDDY, G HYDERABAD
77 KESHAVA REDDY, A HYDERABAD
78 HARI HARA RAO, M SIDDIPET
79 SESHU SAI BABU, P HYDERABAD
80 NARASIMHA SWAMY, S WARANGAL
81 ZAKEER HUSSAIN JAVID, M HYDERABAD
82 RAGHUPATHI, PUTTAPAGA MAHABOOBNAGAR
83 BIKSHAPATHI, K HYDERABAD
84 SYED DAVUD ALI KHAMMAM
85 LATEEF, S.D. HYDERABAD
86 SATHYANARAYANA, T HYDERABAD
87 NARSA REDDY, T NIZAMABAD

Source: https://www.tgnns.com/telangana-new-district-news/bar-council-of-telangana-elections-to-the-members-2018/2018/05/22/ 

Tuesday, July 24, 2018

A.P. Bar Council

A.P. Bar Council Link

http://barcouncilap.org/




25 members elected to AP Bar council

Hyderabad: The returning officer for elections held to the Bar Council of AP declared on Tuesday that 25 members had been elected. The elections were held earlier this month. The counting of votes for the Telangana Bar Council commenced on Monday.
The returning officer declared that Mr Chalasani Ajay Kumar, Mr A. Rami Reddy, Mr B.V. Krishna Reddy, Mr K.Chidambaram, Mr V. Srinivasa Reddy and Mr V. Brahma Reddy were elected to the Bar Council of AP.

Others declared elected were Mr N. Dwarakanath Reddy, Mr V. Srinivasa Rao, Ms R. Madhavi, Mr S. Krishna Mohan, Mr V. Chandrasekhar Reddy, S. Brahmananda Reddy, Mr K. Rama Jogeswara Rao.
Mr M. Subba Rao, Mr N. Ravi Krishna, Mr K. Venkata Ramireddy, Mr S. Rajendra Prasad, Mr P. Ravi, Mr B. Arun Kumar, Mr P. Narsinga Rao, Mr G. Rama Rao, Mr Y. Nagi Reddy, Mr G. Vasudeva Rao, Mr C. Nageswara Rao, and Mr S. Malleswara Rao elected as members.
The elections were held to elect 25 members to the council and 107 advocates were in the fray.  As many as 23,584 advocates cast their votes. 

source: 

Saturday, February 4, 2017

Cheque bounce cases or 138 Negotiable Instruments Act cases:


Nowadays almost every person is aware of cheque bounce cases.  But few people only know what it is exactly.  The Negotiable Instrument Act was amended giving room to punish people who give cheque without maintaining balance in their account.  Before amending the act if any body give cheque without balance that is not an offence, but a civil liability.  i.e., the person  who holds the cheque can sue for recovery of money.  But since the introduction of 138 of Act the Person is liable for punishment.
Lets consider relevent terms in connection with cheque bounce offences.
1 [ 6 “Cheque”. —A “cheque” is a bill of exchange drawn on a specified banker and not expressed to be payable otherwise than on demand and it includes the electronic image of a truncated cheque and a cheque in the electronic form. Explanation I. —For the purposes of this section, the expressions—

 “a cheque in the electronic form” means a cheque which contains the exact mirror image of a paper cheque, and is generated, written and signed in a secure system ensuring the minimum safety standards with the use of digital signature (with or without biometrics signature) and asymmetric crypto system;


 “a truncated cheque” means a cheque which is truncated during the course of a clearing cycle, either by the clearing house or by the bank whether paying or receiving payment, immediately on generation of an electronic image for transmission, substituting the further physical movement of the cheque in writing.

Explanation II. —For the purposes of this section, the expression “clearing house” means the clearing house managed by the Reserve Bank of India or a clearing house recognised as such by the Reserve Bank of India.]

7 “Drawer”, “drawee”. —The maker of a bill of exchange or cheque is called the “drawer”; the person thereby directed to pay is called the “drawee”. “drawee in case of need”. —When in the bill or in any indorsement thereon the name of any person is given in addition to the drawee to be resorted to in case of need such person is called a “drawee in case of need”. “acceptor”. —After the drawee of a bill has signed his assent upon the bill, or, if there are more parts thereof than one, upon one of such parts, and delivered the same, or given notice of such signing to the holder or to some person on his behalf, he is called the “acceptor”. “acceptor for honour”. — 2 [When a bill of exchange has been noted or protested for non-acceptance or for better security], and any person accepts it supra protest for honour of the drawer or of any one of the indorsers, such person is called an “acceptor for honour”. “Payee”. —The person named in the instrument, to whom or to whose order the money is by the instrument directed to be paid, is called the “payee”.

“Holder”.—The “holder” of a promissory note, bill of exchange or cheque means any person entitled in his own name to the possession thereof and to receive or recover the amount due thereon from the parties thereto. Where the note, bill or cheque is lost or destroyed, its holder is the person so entitled at the time of such loss or destruction.

9 “Holder in due course”.—“Holder in due course” means any person who for consideration became the possessor of a promissory note, bill of exchange or cheque if payable to bearer, or the payee or indorsee thereof, if 1[payable to order], before the amount mentioned in it became payable, and without having sufficient cause to believe that any defect existed in the title of the person from whom he derived his title.

These are the terms we often come across the 138 cases.

The Sec.138 says:

18 [ 138 Dishonour of cheque for insufficiency, etc., of funds in the account. —Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provisions of this Act, be punished with imprisonment for 19 [a term which may be extended to two years], or with fine which may extend to twice the amount of the cheque, or with both: Provided that nothing contained in this section shall apply unless—

    (a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier;

    (b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, 20 [within thirty days] of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and
   (c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice.
Explanation.— For the purposes of this section, “debt or other liability” means a legally enforceable debt or other liability.]

THE NEGOTIABLE INSTRUMENTS ACT, 1881

1[ 139 Presumption in favour of holder.—It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in section 138 for the discharge, in whole or in part, of any debt or other liability.]

THE NEGOTIABLE INSTRUMENTS ACT, 1881

1[140 . Defence which may not be allowed in any prosecution under section 138.—It shall not be a defence in a prosecution for an offence under section 138 that the drawer had no reason to believe when he issued the cheque that the cheque may be dishonoured on presentment for the reasons stated in that section.]
21 [ 141 Offences by companies. —
(1)  If the person committing an offence under section 138 is a company, every person who, at the time the offence was committed, was in charge of, and was responsible to the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly: Provided that nothing contained in this sub-section shall render any person liable to punishment if he proves that the offence was committed without his knowledge, or that he had exercised all due diligence to prevent the commission of such offence: 22 [Provided further that where a person is nominated as a Director of a company by virtue of his holding any office or employment in the Central Government or State Government or a financial corporation owned or controlled by the Central Government or the State Government, as the case may be, he shall not be liable for prosecution under this Chapter.]
 (2)  Notwithstanding anything contained in sub-section (1), where any offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is attributable to, any neglect on the part of, any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly. Explanation.— For the purposes of this section,—
  (a)  “company” means any body corporate and includes a firm or other association of individuals; and
 (b)  “director”, in relation to a firm, means a partner in the firm.]
23 [ 142 Cognizance of offences. —Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974)—
(a) no court shall take cognizance of any offence punishable under section 138 except upon a complaint, in writing, made by the payee or, as the case may be, the holder in due course of the cheque;
 (b)  such complaint is made within one month of the date on which the cause of action arises under clause (c) of the proviso to section 138: 24 [Provided that the cognizance of a complaint may be taken by the Court after the prescribed period, if the complainant satisfies the Court that he had sufficient cause for not making a complaint within such period.]

  (c) no court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any offence punishable under section 138.] COMMENTS

 (i) Consequent upon the failure of the drawer to pay the money within the period of 15 days as envisaged under clause (c) of the proviso to section 138, the liability of the drawer for being prosecuted for the offence he has committed, arises, and the period of one month for filing the complaint under section 142 is to be reckoned accordingly; Sadanandan Bhadran v. Madhavan Sunil Kumar, AIR 1998 SC 3043.
(ii)  A manager or any other person authorised by the company can represent it during the course of legal proceedings before the court and file a complaint; Salar Solvent Extractions Ltd. v. South India Viscose Ltd., (1994) 3 Crimes 295 (Mad).
 (iii)  The Magistrate while taking cognizance has to look into the question whether the ingredients of an offence have been made out or not; M/s. Pearey Lal Rajendra Kumar Pvt. Ltd. v. State of Rajasthan, (1994) 3 Crimes 308 (Raj).
(iv) The cause of action for filing complaint would arise after the completion of 15 days from the date the drawer receives the notice and fails to pay the amount within that period; V.N. Samant v. M/s. K.G.N. Traders, (1994) 3 Crimes 725 (Karn).
(v) The payee cannot lodge a complaint after the completion of one month from the date on which the cause of action arose as there is a bar under clause (b) of section 142; V.N. Samant v. M/s. K.G.N. Traders, (1994) 3 Crimes 725 (Karn).
(vi) So long as the period of notice does not expire there can be no cause of action with the payee to make the drawer liable criminally; T.K. Khungar v. Sanjay Ghai, (1994) 3 Crimes 802 (P & H).

(vii) It is well settled that it is not necessary for the Magistrate to specifically state that he is taking cognizance of the offence. If he takes steps as provided under section 200, of the Code of Criminal Procedure then it necessarily means that he has taken cognizance of the offence; R. Rajendra Reddy v. M/s. Sujaya Feeds, (1994) 3 Crimes 692 (Karn).

(viii) The complainant must allege in his complaint that the cheque was dishonoured due to want of sufficient amount in the account, even if the payment was stopped; Ballakrishna Pillai v. Abdullakutty, (1994) 2 Crimes 327 (Ker).

(ix) Once a cause of action has arisen, the limitation will begun to run and it could not be stopped by presenting the cheque again so as to have a fresh cause of action and fresh limitation; M/s. Chahal Engineering and Construction Ltd. v. M/s. Verma Plywood Co., (1994) 1 Crimes 845 (P & H).

(x) The criminal prosecution has to be launched within one month of the expiry of 15 days' period from the issuance of notice as provided by section 142(b) of the Act; M/s. Chahal Engineering and Construction Ltd. v. M/s. Verma Plywood Co., (1994) 1 Crimes 845 (P & H).

(xi) When the cheque stood issued in favour of a company, a complaint under section 138 of the Act can be filed by its Manager, Partner, Director or any person authorised by the company; M/s. Ruby Leather Exports v. K. Venu, (1994) 1 Crimes 820 (Mad).
(xii) There is no ambiguity in clause (a) of section 142 of the Act, which prohibits or excludes complaints being initiated by Power of Attorney, agents of the payee or the holder in due course. A Power of Attorney, will be competent to initiate a private complaint by stepping into the shoes of the payee or the holder in due course; M/s. Ruby Leather Exports v. K. Venu, (1994) 1 Crimes 820 (Mad).

THE NEGOTIABLE INSTRUMENTS ACT, 1881

1[143. Power of Court to try cases summarily.—
(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), all offences under this Chapter shall be tried by a Judicial Magistrate of the first class or by a Metropolitan Magistrate and the provisions of sections 262 to 265 (both inclusive) of the said Code shall, as far as may be, apply to such trials: Provided that in the case of any conviction in a summary trial under this section, it shall be lawful for the Magistrate to pass a sentence of imprisonment for a term not exceeding one year and an amount of fine exceeding five thousand rupees: Provided further that when at the commencement of, or in the course of, a summary trial under this section, it appears to the Magistrate that the nature of the case is such that a sentence of imprisonment for a term exceeding one year may have to be passed or that it is, for any other reason, undesirable to try the case summarily, the Magistrate shall after hearing the parties, record an order to that effect and thereafter recall any witness who may have been examined and proceed to hear or rehear the case in the manner provided by the said Code.

(2) The trial of a case under this section shall, so far as practicable, consistently with the interests of justice, be continued from day to day until its conclusion, unless the Court finds the adjournment of the trial beyond the following day to be necessary for reasons to be recorded in writing.
(3) Every trial under this section shall be conducted as expeditiously as possible and an endeavour shall be made to conclude the trial within six months from the date of filing of the complaint.
THE NEGOTIABLE INSTRUMENTS ACT, 1881

144. Mode of service of summons.—

(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), and for the purposes of this Chapter, a Magistrate issuing a summons to an accused or a witness may direct a copy of summons to be served at the place where such accused or witness ordinarily resides or carries on business or personally works; for gain, by speed post or by such courier services as are approved by a Court of Session.

(2) Where an acknowledgment purporting to be signed by the accused or the witness or an endorsement purported to be made by any person authorised by the postal department or the courier services that the accused or the witness refused to take delivery of summons has been received, the Court issuing the summons may declare that the summons has been duly served.
THE NEGOTIABLE INSTRUMENTS ACT, 1881
145. Evidence on affidavit.—
(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), the evidence of the complainant may be given by him on affidavit and may, subject to all just exceptions be read in evidence in any enquiry, trial or other proceeding under the said Code.

(2) The Court may, if it thinks fit, and shall, on the application of the prosecution or the accused, summon and examine any person giving evidence on affidavit as to the facts contained therein.

THE NEGOTIABLE INSTRUMENTS ACT, 1881

146. Bank’s slip prima facie evidence of certain facts.—The Court shall, in respect of every proceeding under this Chapter, on production of bank’s slip or memo having thereon the official mark denoting that the cheque has been dishonoured, presume the fact of dishonour of such cheque, unless and until such fact is disproved.

THE NEGOTIABLE INSTRUMENTS ACT, 1881

146. Bank’s slip prima facie evidence of certain facts.—The Court shall, in respect of every proceeding under this Chapter, on production of bank’s slip or memo having thereon the official mark denoting that the cheque has been dishonoured, presume the fact of dishonour of such cheque, unless and until such fact is disproved.

147 Offences to be compoundable. —Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), every offence punishable under this Act shall be compoundable.

THE NEGOTIABLE INSTRUMENTS ACT, 1881 SCHEDULE.—Enactment repealed.—[Rep. by the Amending Act, 1891 (12 of 1891), sec. 2 and Sch. I.]

1. Subs. by Act 55 of 2002, sec. 2, for “A “cheque” is a bill of exchange drawn on a specified banker and not expressed to be payable otherwise than on demand" (w.e.f. 6-2-2003).
2. Ins. by Act 5 of 1914, sec. 2.
3. Ins. by Act 5 of 1914, sec. 2.
4. Added by Act 5 of 1914, sec. 3.
5. Added by Act 5 of 1914, sec. 3.
6. Subs. by the A.O. 1937, for “Local Government”.
7. Ins. by Act 2 of 1885, sec. 4.
8. Subs. by Act 12 of 1921, sec. 3, for “for payment”.
9. Subs. by Act 66 of 1988, sec. 2, for “six per centum” (w.e.f. 30-12-1988).
10. Ins. by Act 55 of 2002, sec. 4 (w.e.f. 6-2-2003 ).
11. Ins. by Act 17 of 1934, sec. 2.
12. Ins. by Act 55 of 2002, sec. 5 (w.e.f. 6-2-2003 ).
13. The words “and such declaration must be recorded by the notary in his register” omitted by Act 2 of 1885, sec. 8.
14. Subs. by Act 66 of 1988, sec. 3, for “six per centum” (w.e.f. 30-12-1988).
15. Explanation re-numbered as Explanation I thereof by Act 55 of 2002, sec. 6 (w.e.f. 6-2-2003).
16. The words “law of British India” were successively amended by A.O. 1948, the A.O. 1950 and Act 3 of 1951, sec. 3 and Sch. to read as above.
17. Subs. by Act 3 of 1951, sec. 3 and Sch., for “the States”.
18. sections 138 ins. by Act 66 of 1988, sec. 4 (w.e.f. 1-4-1989 ).
19. Subs. by Act 55 of 2002, sec. 7, for "a term which may be extended to one year" (w.e.f. 6-2-2003 ).
20. Subs. by Act 55 of 2002, sec. 7, for "within fifteen days" (w.e.f. 6-2-2003 ).
21. Ins. by Act 66 of 1988, sec. 4 (w.e.f. 1-4-1989).
22. Ins. by Act 55 of 2002, sec. 8 (w.e.f. 6-2-2003).
23. Ins. by Act 55 of 2002, sec. 9 (w.e.f. 6-2-2003).
24. Ins. by Act 55 of 2002, sec. 9 (w.e.f. 6-2-2003).
As we observed above the litigation pertaining to the cheque bounces are becoming a major litigation in the country. 

Since the giving of cheque without balance in account is an offence and the cases are easy to file and less time in comparable with civil cases are taken, besides that no court fee is payable people are opting to file 138 NI Act cases.  It is not out of place to say that many un authorised money lenders and private chit fund owners are also taking advantage of this easy tryl.  Day after day many people are suffering for the following:

The private money lender by lending small amount taking a cheque of heavy amount and filing criminal cases.  The accused could not place any defence of the same before the courts and ultimately they have to suffer criminal punishment i.e., sentence to Jail.  In some cases the accused to safe guard their skin are going to compromise with the complainant by paying more and more money to them by facing many trebles.

Nowadays Bankers are also taking advantage of this procedure.  Inspite of filing a civil case they also opting to file criminal case under 138 NI act.

I saw several cases wherein innocent people were became subject for harassment of 138 NI Act. 

I think it is high time to amend the act in the following way.

If any debt is given to any person that should be only by way of crossed cheque and on the basis of cheque only promissory note should be executed.  If any transaction is not by way of cheque or Demand Draft was not made at the time of lending money that should not attract 138 NI act.  More over if a person who is not a professional moneylender than only cheque bounce cases strictly should attract.

At the time of filing of a complaint the complainant should declare that the present case is only a transaction of lending money which does  not attract professional money lenders act, he further declare that except the present case he was not filed any more 138 NI Act cases and also should undertake that he will not file any more cases.every transaction should be shown in income tax returns.

I request the state to incorporate these points in future amendments so as to curtail false, fake and unfair litigation.  So that only real people will come to the court.

As far as Bank transactions are concerned sec.138 completely  made not applicable for Bank transactions. 

If anybody having any doubt with regarding these cases can contact the author.