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
https://www.youtube.com/watch?v=Ku7Vc_Uhnhk
Friday, April 19, 2019
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?
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
************************
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 –
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
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”.
8 “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) 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
(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
(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.
If anybody having any doubt with regarding these cases can contact the author.
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