Legal Question in Criminal Law in India
criminal law - under secion 138 of NIA.
BODY,
my client is a builder, he sold a flat to the costumer. the constumer being a cleaver and to save the revenue charges the registry execute in the name of the his wife, but cheque issued by her husband in respect of same transaction. the same cheque was dishonoured. i issue legal notice to both husband and wife. husband gave the reply but the wife did not give any reply. i filed complaint under section 138 read with 142 of the negotiable instrument act and making both of them as accused, becuase the wife is a beneficiary of the flat and the husband has issued cheque in the respect of same transaction. now my question is that is the wife is necessary party or not. am i correct to make the party as accused of his wife. if yes then under which provision or is any citation of the Hon'ble supreme court of high court. if court delete the name of his wife as accused, will be effect on my complaint. kindly give responsible reply as soon as posible. the case is fixed on 27th may 08.
4 Answers from Attorneys
Re: criminal law - under secion 138 of NIA.
The Drawer of the cheque which gets dishonour is only the accused in such cases. Secondly the person should be legally liable to make payment.
Re: criminal law - under secion 138 of NIA.
Only the drawer stands accused in this kind of cases.
Re: criminal law - under secion 138 of NIA.
On your part you had taken right step by making both of them party but in case of 138 NIAct, no case is made out against wife as the cheques were not issued by her and there is every chance that her name may be deleted by court but it will not effect the case.In trial you will be required to prove the transaction and also that cheques were against consideration i.e. flat.Further you may proceed against wife by cancelling the allottment on the ground of non-payment of money for flat.So,go ahead,best of luck.
Re: criminal law - under secion 138 of NIA.
In criminal proceedings, concept of necessary party is absent.
Since your client accepted cheques from a person who is not liable under the contract, the complaint may not maintainable either against the husband or the wife.
One need to assess the matter on the basis of facts and circumstances of the case with allegations made in the notice and complaint.
Related Questions & Answers
-
Powers of State Legislature under Constitution of India In the year 1952, the State... Asked 5/24/08, 12:59 am in India Criminal Law
-
My criminal appeal is pending with a sessions judge. My criminal appeal is pending... Asked 5/19/08, 11:47 pm in India Criminal Law
-
Conviction under IPC 407 As per IPC section 407 is connected with breach of trust by... Asked 5/19/08, 4:24 am in India Criminal Law
-
Public Servant We did not take this stand duirng trial. We want to this plea during... Asked 5/19/08, 2:54 am in India Criminal Law
-
I am a public servant working in a Public Sector Undertaking I am a public servant... Asked 5/19/08, 2:23 am in India Criminal Law
Looking for something else?
10,200 active attorneys ready to answer your legal questions today.
Featured Attorneys
Earn additional revenue and grow your business.
