Legal Question in Criminal Law in India

Cheque Bounce case U/S.138 of N.I.Act.

The subject cheque was issued on 3/10/2006 by the accused after the complainant quit the unregistered partnership, by way of refund of the money paid by the complainant in August, 2005 as per the decision taken in the verbal dissolution of the partnership done in June, 2006 in the presence of the witness. Rs.4.50 lakh ( withdrawn from bank account of complainant) paid in cash, because the accused pleaded that his Rs.6.00 lakh was struck in a co-operative bank, which had failed in July, 2005, which was supported by the witness, and Rs.50,000/- paid by cheque at the instance of the accused to the landlord of a plot to be developed by the partnership.

Cross exam. of complainant was over in June,09

The accused has submitted in writing to the Magistrate on 10/7/09 that he will pay Rs.6,00,000/- to the complainant by 20/7/09 and submit the compromise settlement on 21/7/09. ( Bounced Cheque is of Rs.5,00,000/-). However, on 21/7/09 the accused submits another request ,enclosing a copy of a cheque of Rs.20,00,000/- dated 20/7/09 issued in favor of his film company , stating that he will pay Rs.6,00,000/- by 31/7/09. However, the Magistrate, after reading the request and examining the copy of the cheque, did not accept this request and advises the counsel for the complainant to file the affidavit of the witness, which was done on 31/7/09. As the matter was proceeded with, the cross examination of the witness took place on 18/8/09..

The witness has submitted his affidavit and has also been cross examined by the accused. Witness has confirmed the cash payment by the complainant in his presence and that a cheque payment made by the complainant in favor of the land lord of the property to be developed by the unregistered partnership ( of complainant and the accused) was issued at the instance of the accused. Further, the witness has confirmed that the suit cheque was given to him by the accused with instruction to hand over the same to the complainant.

After the cheque dated 3/10/06 bounced in December, 2006( presentation delayed at the instance of the accused and the accused had sent an SMS on 6/11/06 to the complainant, requesting � please call� ) the accused had written a complaint on 29/1/2007 to a minister, with copy to the Commissioner of police, stating that the cheque was obtained by the complainant using goondas, and his life was in danger. He had also committed to the minister/police in the same complaint letter that he would pay complainant�s money by 30/4/07. The complainant was called by the police and enquiry conducted in the form of a written statement in May,2007. However, when the accused was called to the police station for completing the enquiry in May, 2007, the accused did not turn up, giving vague excuses and he has still not met the police in this regard. The police have also recorded in that report that the accused had played this trick with others also when it came to refunding the money to those who have paid. Some of these cases relate to payment taken by the accused, promising jobs to jobless youngsters, and after about six months or so refunded the same by cheque and when cheque bounced, disappeared from the scene. Criminal complaints are pending against the accused, lodged by the people who had paid the money and to whom the cheque issued, refunding the money, had bounced. (Certified copy of both the complaint and the enquiry report have been submitted to the court as � Exhibits� ).

On 5/9/09 when the judge asked the accused about the cheque issued by him, he had said that the cheque was obtained by the witness using 2-3 goondas at a public place, which is in contrast to the written complaint dated 29/1/2007 by the accused against the complainant, stating that the complainant had used goondas to obtain the cheque. He also stated that he would submit his affidavit on 18/9/09.

The accused as well as his counsel did not turn-up on the 2 subsequent dates, i.e. on 18/9/09 and 29/9/09, resulting in the judge ordering issuance of non-bailable arrest warrant on 30/9/09, which the police is trying to serve on the accused.

i). Whether the statement of the accused in writing to the court undertaking to pay Rs.6.00 lakh to the complainant by 20/7/09 amounts to acceptance of liability under the cheque, (since it can be safely argued that there was no need for the accused to commit in writing to pay, unless there was any liability)?

ii). Whether the accused committing in the complaint letter of 29/01/07 that he would pay complainant�s money by 30/4/07, which he failed to do, together with bulk withdrawal of cash by the complainant from his account and paid in the presence of the introducer witness and the same has been confirmed by the witness( common friend) before the court, will be sufficient evidence to prove the liability of the accused under the cheque issued by him?

iii). Whether the accused failing to submit the affidavit as promised and avoiding to attend the court on two consecutive occasions will go against the accused?

Complainant

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