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Accused did not issue a cheque to the complainant

Shivendra Pratap Singh

Advocate

20/03/2022

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Question: My cheque is being misused and bounced and a RENT SUIT is filed in a state other than my own state and First hearing itself is due. Appearance of Accused. I got notice but as I was not at home so it returned. Accused did not issue a cheque to the complainant. Another person filed cheque bounce case to whom I did not issue the cheque. This cheque was not given to this person but was with someone known to both of us (Common friends). To harass me he gave it to him and initiated the above mentioned action. Case is filed under NI 138 Act. What counter action can I file in my own state? As per new guidelines, Before issuing summons to the accused, considering the party’s territorial jurisdiction, the Magistrate is bound to hold an enquiry for the same. But no such steps are being taken in my case as seen online.

Asked from: Gujarat

Can you prove that the said cheque was misused by the complainant? If you have evidence to prove that you issued the said cheque to the person other than the complainant then you can quash this criminal case. The complainant, in dishonour of cheque, has to prove that 

  • Accused issued the cheque in discharge of liability.
  • The said cheque was issued to the complainant. 
  • The complainant has the right to recover the dues through encashment of cheque.

Hence, the complainant cannot use the cheque which was originally issued to another person. In this matter, your reply to the demand notice becomes important. You should raise your objection against the encashment of the cheque and explicitly mention it in the demand notice. 

If you have objected to the encashment on the ground that you have not issued that cheque in discharge of liability then you can file a petition in the High Court for quashing. The High Court has power under Section 482 crpc to quash a false and frivolous proceeding.

If the accused did not issue a cheque to the complainant, no offence made out under Section 138 of the Negotiable Instrument Act.

shivendra pratap singh advocate

Shivendra Pratap Singh

Advocate

Practising lawyer in the High Court Lucknow. You can consult on Criminal, Civil, Matrimonial, Writ, Service matters, Property, Revenue and RERA related issues.

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