CASELAWS

Ans: Section 416 of Indian Penal Code. "Cheating by personation" A person is said to "cheat by personation" if a person cheats by pretending to be some other person, or by knowingly substituting one person for or another. The offence is committed whether the individual personated is a real or imaginary person. Illustrations :  (a) A cheats C by pretending to be a certain rich banker of the same name. A cheats C by  personation. (b) A cheats by pretending to be B, a person who is deceased. A cheats by personation.

Ans: Illustrations: 1. There are two persons A and Z. A exhibits the false sample of an article to Z and intentionally makes Z believe that the article corresponds with the sample. A here induces Z to buy and pay for the false sample of the article. A cheats Z. 2. A, by pledging as diamond articles which he knows are not diamonds, intentionally deceives Z, and thereby dishonestly induces Z to lend money. A cheats.

Ans: Section 420 specifically penalises more severe cases of cheating. Under Section 417, cheating is illegal regardless of whether it was done dishonestly or fraudulently. In contrast, Section 420 particularly penalises situations in which fraud is committed using deceptive inducement when the fraud's target is real estate or valued security. Illustration:  A" requests money from "B." A purposefully misleads B into thinking that A's intention is to repay whatever money B may lend him or he dishonestly persuading B to lend him money. Considering that "A" has no intention of paying it back, "A" has cheated. Using the same name as a wealthy banker, "A" defrauds by impersonating him. Using a persona, "A" cheats "B." The punishment under the offense of section 420 is imprisonment for a term extending up to 7 years and also with a fine. 

Ans : Yes, it is an offence to draw the cheque fraudulently.   Section 415 of IPC deals with deceiving any person  a) fraudulently or dishonestly. Fraudulently means that the intention is to fraud someone. Dishonestly is mentioned under section 24 of IPC which means wrongful gain and wrongful loss. b) intentionally induces the person so deceived to do or to omit to do anything. It causes damage or harm.  x

Ans: If a person tries to draw the cheque misappropriately, it is an offence under section 403 of IPC which is dishonest misappropriation of property.

Ans: A and B collude together and A issues the cheque for X Amount, which gets dishonored.  B files the complaint under S.138, and without proving the liability gets the benefit of presumption under S.139, now both A and B enact the drama of compounding under S.147 of NI Act, matter closed, but in principle A has violated IPC S.208 and S.210 and B has violated IPC S.209. So, if rightly B is asked to prove the entitlement to become the holder, before presumption can be granted to him, surely he would fail and lawfully both A and B can be prosecuted under IPC S.208, S.209 and S.210 if required.

Ans:  Section 44 of Negotiable instrument Act talks of partial absence of money consideration even after drawn and Section 45 of the said act talks of partial failure of non money consideration. x

Ans: Section 43 of negotiable instrument act talks of possibility of failed consideration, even after the instrument is drawn for any money consideration/liability. The onus cannot be only on accused to prove the part or full failure of consideration, simply because complainant may not come forward with the liability of evidence in his possession. A negotiable instrument made, drawn, accepted, endorsed, or transferred without consideration, or for a consideration which fails, creates no obligation of payment between the parties to the transaction. But if any such holder has transferred the instrument to another person with consideration, such person and every subsequent person deriving title from him, may recover the amount due on such instrument from the transferor for consideration or any prior party thereto. 

Ans: S.208 and S.210 of IPC talks of accepting a decree of more money than due. So there cannot be any question of any kind of positive presumption with respect to amount of money, the amount of money due has to be proved by the prosecution. Section 208 of IPC deals with fraudulently suffering decree for sum not due. Section 210 of IPC deals with fraudulently obtaining decree for sum not due. Under Section 208 of IPC, if any person accepts any amount or property for which he is not entitled on the order of court which was erroneously given ,he will be punished with an imprisonment of 2 years or fine or both.  Under Section 210 of IPC, if any person assists to that person who accepts any amount or property for which he is not entitled on the order of court which was erroneously given ,he will also be punished with an imprisonment of 2 years or fine or both. 

Ans: S.209 of IPC talks of offense for claiming more money than due or making any other false claim. Section 209 of IPC deals with dishonestly making false claim in Court with intent to injure or annoy any person shall be punished with imprisonment of either descrip­tion for a term which may extend to two years, and shall also be liable to fine.

Ans: Section 20 of negotiable instrument act deals with i nchoate stamped instruments. S.20 of the NI Act suggests that if an inchoate instrument is filled up by the possessor, then the amount must be justified by him. It is the different thing that S.20 is not applicable on cheques, simply because cheque is not a stamped instrument. Bills of exchange is an stamped instrument. The amount can be more than the amount covered by the stamp in the stamped instrument.  The justification of the amount means he has to prove the existence of facts behind the liability attached.

Ans: The Correct view : The intent of legislature behind S.139 is  1. That the cheque is issued to clear any debt or liability, in whole or in part.  2. This presumption is given to Holder only. A  cheque can be issued by the drawer A to the payee B for following purpose.  1. To clear any single debt or liability. 2. To clear multiple liabilities on A (of B).  3. To clear a single liability even though multiple liabilities are existing.  4. For Gift.  5. To disburse a loan.  6. For security.  7. For some advance payment.  8. For some margin money to stock broker.  9. For some Earnest Money to participate in some commercial activity. 10. For Charity. This list is not comprehensive, but what it says that a cheque can be issued for many purposes, so the legislature of India has just rigidified the purpose of the cheque that it was acquired by the Holder to clear any debt or liability, or for consideration. If this presumption is not th...

Ans: That if the signature is admitted or proved to be true, then there is not much onus or burden on the complainant to prove the liability, he need not prove the existence of facts to prove the liability, it is the liability of an accused to disprove the liability. The cheque is taken as the acknowledgement or the proof of legally enforceable debt in support of complainant. If the accused has failed to disprove, a thing which is not even proved by complainant, then he is convicted. This interpretation is illegal and absolutely incorrect and perverse. We are not required to mention any specific order of Honourable Apex Court or Honourable High Courts across India, but this is how as good as all the courts in India are interpreting this section, except Kerala High Court.

 Ans: The cheque bouncing in India is a criminal offense as well as carry punishment up to two years imprisonment under S.138 of the Negotiable Instrument Act, 1881.  There are many district courts that are flooded with cheque bounce cases, the situation is so appalling that every district court has more than one dedicated court for such type of cases, and handles hundreds of cases every day. This proclaims that either Indians are fundamentally dishonest in issuing the cheques or there is something wrong with the judicial handling or proceedings of such cases. S.118 and S.139 of the Negotiable Instrument Act, are not correctly interpreted by the courts. It causes undesired problem to the accused as well as furnishes undeserved benefit to the complainant, and at last  the judiciary is clogged with absolutely no desired benefit of the law. It is the matter of serious concern as more than 50 lacs people have been accused in cheque bounce cases, and the significant point...

Ans: Section 118 of negotiable instrument act deals with presumptions as to negotiable instrument. 1. If any negotiable Instrument was endorsed, it will be presumed that it will be for consideration. 2.  The date mentioned will be the date of drawn. 3. The negotiable Instrument can be transferred many times before maturity period. 4. If any document is endorsed, it is mentioned in front side or back side and it is considered true and in ditto. 5.  If any instrument is lost, it is considered as duly stamped. 6. The holder in due course is considered as holder.He is the owner of negotiable Instrument. 7. If any document is received with fraud, it is the responsibility of holder in due course to prove that he is the holder in due course of that document.

Ans: Naresh Kumar Vs Trilok Chand, March 1, 2023.  Coram: Hon’ble Mr. Justice Sandeep Sharma. The Himachal Pradesh High Court on Wednesday observed that courts while exercising power under Section 147 (Offences To Be Compoundable) of the Negotiable Instrument Act are sufficiently empowered to proceed to compound an offence, even in cases where accused stands convicted. The observations were made by Justice Sandeep Sharma while hearing a plea in terms of which the petitioner/accused had prayed for compounding of the offence under S.147 of the Negotiable Instruments Act on the ground that the petitioner/accused had compromised the matter with the respondent as well as paid the entire due amount.

Ans: Monic Sunit Ujjain v. Sanchu M. Menon and Ors, Criminal Revision Application No. 394 of 2015. Coram: Justice Prakash D Naik "In cases of money lending business without license, the provisions under Section 138 of Negotiable Instruments Act are not attracted", Justice Prakash Naik observed in his order. The bombay high court perused the order of the sessions judge and stated that section 138 of NI Act is not attracted in cases of money lending business without licence. The court, from the MoU between the parties, collected that the transaction was without licence and the post-dated cheques were given as security. Therefore, the Bombay High Court did not find any reason to interfere with the order as well as rejected the criminal revision application.

Ans: In Krishna Janardhan Bhat's case (Supra) Hon'ble Supreme Court of India held as under:  "Dishonour of cheque of Rs. 1.50 lakhs­: The complainant told that he had advanced money to accused but there was no supporting documentary proof for that . So, it was believed that the blank cheque came into the hands of complainant during business transactions and the complainant filled up the amount and misused it.

Ans: In the case of Bir Singh v. Mukesh Kumar 2019 CRI. L.J 3227, the honourable Supreme Court held that: “A person who signs a cheque and makes it over to the payee remains liable unless he adduces evidence to rebut the presumption that the cheque had been issued for discharge of a liability.”

Ans: The honourable Supreme Court held that if any person files the case of section 138 of negotiable Instrument act, 1881, he would have to give the bank details and email id of an accused. Whenever the court direct summon, it will also be mentioned in summon what the amount of cheque is. The account detail of complainant will also be annexed with summon. If the accused gets agreed to deposit the amount of cheque and fine in court, the court can terminate the proceeding at the same stage. The honourable Supreme Court also held that the procedure of section 138 is summary procedure, the statement of witnesses should be taken on affidavit and the slip or dishonoured cheque will be considered as sufficient evidence.

Ans: The cheque was given to Kanchan Mehta by Meters and Instruments that was dishonoured. Kanchan Mehta made the notice of 138 of negotiable Instrument act send to Meters and Instruments but the payment was not given within 30 days and thus the case of section 138 of negotiable Instrument act was filed. When the summon was issued to the director of Meters and Instruments, he told that he was agreed to complete the payment of cheque and he also issued the demand draft for that but  Kanchan Mehta refused to accept it and did not make settlement on the matter. The Magistrate rejected the application of Meters and Instruments and told that the party could not be bound to compound in any criminal matter. The High Court also carried out the same .

Ans: The punishment in the case of dishonor of cheque is 2 years and the fine is upto two times the amount of cheque.

That the respondent accepted in the police statement that he had no kinship with the petitioner and he had given the money to petitioner without having any guarantor and he provided money to petitioner without any process in writing. The respondent also acceded that he had given money to petitioner on interest of Rs 5 percent per annum but the petitioner had not the license of providing interest. 

That it was acceded in para 13 of cross examination that no bank statement and any other document were produced by the respondent and the statements of respondent were contradictory which made him incredible. 

That the petitioner stated under section 145 of negotiable instrument act,  1881 in Affidavit:  1. The respondent has close relationship with petitioner.  On one side, the respondent stated that he had been in close relationship with petitioner for 10 to 15 years and on the other side, the respondent told that the respondent did not know the name of mother of petitioner,  name of father of petitioner and other family members of petitioner. The respondent did not know where the petitioner lived before his marriage . 2. In para 5, line 9, the respondent accepted that he filed income tax in 2008 and after that he did not file income tax due to deterioration of financial condition whereas in affidavit he accepted that he filed last income tax return in 2005 and after that he did not file income tax return. 

Additional pleas: That it was the legal responsibility of respondent to provide the true facts before the honorable court. That the respondent was completely unsuccessful to complete the legal responsibility  of proving the accurate amount of money paid and money received. (Section 101 of Indian Evidence Act, 1872). 

That the respondent had mentioned the total amount of Rs 10 lakhs in legal notice whereas the respondent had mentioned the total amount of Rs 17.5 lakhs in affidavit, and thus there were  contradiction between two statements.  That the respondent accepted in affidavit that he had received the amount of Rs 8.5 lakhs from petitioner . That the respondent accepted in cross-examination that petitioner had paid the amount of Rs 8.5 lakhs to respondent. 

That the petitioner stated contradictory statements in Affidavit,  police statement and cross-examination which is perjury under section 340 of Cr.P.C R/W section 193, 194,195,196 of IPC. That the petitioner furnished contradictory statements and had not produced any document pertaining to his statement.

Ans: That the respondent had stated and mentioned in the paragraph 11 of cross-examination that the respondent had received the amount of Rs 8 lakhs from the petitioner.  That the respondent had stated in the statement given to police that the petitioner had paid Rs 8.5 lakhs to respondent and the respondent had also accepted in his cross-examination and mentioned in para 12, line 7 that petitioner had paid Rs 8.5 lakhs to respondent. 

2. In the legal notice of respondent who was the claimant, it had been mentioned that the respondent paid Rs 10 lakhs to the petitioner in which Rs 7.5 lakhs was given via Cheque/NEFT and Rs 2.5 lakhs was paid through cash .The name of Bank and the date of payment were neither mentioned nor any document was attached of it.  3. The respondent has mentioned in the evidence on affidavit under section 145 of negotiable instrument act, 1881 that he had received Rs 8 lakhs from the petitioner. 

That the respondent's case is not a case of cheque bounce and it is cheating towards petitioner, thus respondent's case does not fall under the category of Section 138 of negotiable instrument act, 1881. 

4. That the petitioner replied to the notice of respondent of 16/08/2016 which is mentioned in D-2 that the petitioner had no outstanding balance and it was told to respondent that the respondent should have torn the cheque and should not have used the cheque unfairly.  Thus, the petitioner produced the facts in the honourable court on 08.09.2016 which are as follows for the proceeding of case. 

1. That the respondent had the intimacy with petitioner,  and thus respondent provided Rs 10,00000 to petitioner in which Rs 7,50,000 was provided through cheque/NEFT and Rs 2,50,000 was provided via cash. 2. That the respondent furnished the total amount of Rs 17 lakhs and 50 thousand in the running account of petitioner and out of which , Rs 10.5 lakhs was transferred via cheque/NEFT and the remaining amount of Rs 7,00,000 was provided through cash . 3. The respondent received the amount of Rs 8 lakhs using different modes of transfer and the cheques of Rs 10 lakhs was bounced. Thus, the respondent has made contradictory statements of payment transferred and payment received.

3. That the reception was organized on 26/02/2014 by the family of respondent at Hotel Satya Ashoka , Jabalpur and all the expenses were borne by the parents of respondent.  4. That the respondent went to in-laws house after the reception ceremony and the petitioner and his family tried their best for the happiness of respondent. Some time later, the respondent came to know that petitioner wet his whistle and also complained about it to his parents but the parents of petitioner told that he drank occasionally because it is a fashion nowadays in the parties and the respondent needed not to worry why it had not been disclosed previously. The respondent said that she had left home because petitioner had disdained respondent in state of drunkenness even if it was banal dispute between husband and wife. 

 The applicant requests the Hon'ble Court that: - 1.That, the applicant is a Hindu and their marriage is solemnized according to Hindu customs on 23.02.2024 (Twenty-three February and Two Thousand Twenty Four) at Hotel Express Sarovar Portico, Suraj Kund, Faridabad with  consent of both families.  2. That the kindreds of respondent Smt Megha Khare gave gold chain of 2.5 tola, three gold rings of weight 18 gm, tops of gold weighing 10 gm, one gold necklace of almost 7 tola, four bracelets of gold of almost 4 tolas, gold earrings of almost 5 gm and other ornaments of almost Rs 5,20,000 ànd suits and sarees to relatives of almost Rs 2 lakhs and the kins of respondent also spent Rs 8 lakhs in marriage ceremony and gave Rs 4 lakhs cash in Tika ceremony and also spent Rs 80,000 in fruits and clothes in Tika ceremony. The parents of respondent spent almost Rs 20 lakhs in marriage ceremony and also gave the belongings of marriage.