Cheque bounce case and legal clarifications
LEGAL CLARIFICATIONS 1. If a mandate holder (FATHER) issues cheques and bounce will that account holder (SON -NRI) held responsible in vicarious liability? 2. If the first cheque bounces for 3 times as insufficient funds and the mandate holder gives a subsequent cheque taking the first cheque back, also bounce as payment stopped by the drawer. Will this case comes under section 138 or 420? 3. If the account holder instruct the bank to cancel the mandate after months of issuing the cheque, then under which section the legal action can be taken? 4. Can an accused who is absconding since inception of the case in the lower court with repeated non bail able warrants (Evading Arrest) residing abroad approach high court seeking stay u/s 482 Crpc? 5. Can a person in a criminal case u/s 420 & 506 (b) for example C.C. No 1234/2009 Father is A1 (issues cheque as mandate holder) and son is A2 (NRE account holder), Since A2 was absconding since inception of the case the judge split the A2 case as 5678/2011 on 24-12-2011 then A2 approaches high court through mother seeking stay on the parent case No 1234/2009 without informing about split up order and the stay was granted on 31-05-2011? 6. Whether advocate for A1 can represent A2 without vakalath and magistrate can allow such representation? 7. Can a Magistrate presuming A1 as a party before high court and adjourn case against A1? 8. Whether magistrate can adjourn framing charge against A1 when high court doesn’t pass order staying his case? 9. Can magistrate contradict his own order dated 21-06-2011 and pass order dated 02-07-2011? 10. Can a vakalath with a notary stating that the document is signed by A2 on 10-04-2011 in USA whereas the notary public seal reveals that it is on 10-04-2010? In any circumstances can this be accepted by the high court official without scrutinizing the document? 11. Will the A2 has a strong ground to seek a stay from the high court though the above points says it’s a total misrepresentation and he had not approached with clean hands? 12. Since this is the state case when the high court admits the petition of A2 and grant the stay ordering the lower court to stop all the proceedings of the parental case number 1234/2011? Should the lower court also stops the A1 proceedings also though the complainant files the memo in the lower court saying that the stay granted for A2 only and hiding the facts of the split up matter A2 obtained stay for the parental case number where A1 is also their? 13. Can a person who is the father in law of the A2 (Doctor by profession) interfere in the departmental matters on behalf of the A2 misguiding the police by submitting the high court stay copy directly to the police station in his letter head witnessing the A2 mother that the high court stayed all the proceedings of the lower court/police in the C.C. No 1234/2011? 14. Can high court pass a stay order of the lower court proceedings on 31-05-2011 when the warrant is still pending in the lower court as on 20-07-2011? 15. Can the police department stops the investigation when there is no direction been given by the high court to the police? 16. Can police department cancel the lookout circular and allow the A2 to fly back to USA when there is no direction from the high court where the A2 files the interim application and gets rejected? 17. Can police submit the warrant shara to the lower court on 20-07-2011 stating that the A2 obtained the stay from high court on 30-05-2011 mentioning the split up case number (C.C.No 5678/2011) whereas the high court stay order is for parental case number(C.C.No 1234/2011)? 18. Can high court quash the proceedings of the A2 on the grounds that he had no opportunity to meet the complainant to induce or intimidate and no records reveals that A2 was in the country at that time? 19. Is it mandatory to have the accused to be present in the country to allege that 420 & 506b is not applicable? 20. Now that the high court quashed all the proceedings of the A2 in the split up case number after filing interim application to amend in 2013 saying vicarious liability can’t be fastened on A2 and the total responsibility lies on the A1, But A1 is no more since he sentenced 2 years of imprisonment in another case died in the central jail so how to move further? 21. Whether any scope for the revision in the divisional bench in high court or appeal is the only way in Supreme Court? 22. Can an accused send anonymous mails to the complainant when the criminal case pending before the court and will there is any provision to file the case under cyber law after confirming that he has only sent the mail with the document proof? 23. Can a complainant seek review or appeal in divisional bench of the high court if the given judgement under section 482 gets quashed?
Answering all your questions sequentially-
With regards to question 1- Yes, as the account holder, the son WILL be vicariously liable.
With regards to question 2- You can be prosecuted under both sections, but NOT simultaneously. Section 138 of Negotiable Instruments Act, makes the last time your cheque bounced an act of criminality and not the previous instances. Section 420 IPC, makes cheating an offence, if the cheque bounce Involved criminal intention.
With regards to Question 3-With regards to Banking Codes And Standard Board of India (BCSBI), if an account holder makes such a request, the banks have to immediately comply. If they don’t, you may complain to the BCSBI
Question 4- Yes, she/she may, but for the suit to win, he/she will have to prove extraordinary circumstances for evading trial all this time.
Question 5 and 6- Without prior and proper intimation to court, no the advocate cannot so represent.
Question 7 and 8- The Magistrate’s powers are limited, especially if compared to the High Court, hence he/she cannot.
Question 9- No, not until a fresh affidavit is filed before the High Court asking for them to instruct the Magistrate to pass a fresh decision owing to facts like fresh or new evidence coming into light etc.
Question 10- Point this out specifically in the High Court, they may accordingly ask the lower court/ Magistrate to look into this. The case may be sent back to the Magistrate’s court, till this point is corrected.
Question 11- Yes, there is a chance that the High Court might stay the case
Question 12- Yes, the High Court can, provided you directly seek the same in the affidavit, the High Court’s order automatically apply to all lower courts under its jurisdiction.
Question 13- Depends on the facts of the case. If he is a party to the case, he has interests in the case and may be allowed to reasonably produce documents in his favour, if not then please state the same in your affidavit to the high court and accordingly ask the court to give remedial instructions.
Question 14- Yes, the High Court may do the same, provided you give enough legal reasons for it do the same
Question 15- The police is under an obligation to investigate. If the High court finds out that the investigation is not up to the mark, it may instruct the police to investigate with more diligence, but it cannot stop investigation all of a sudden.
Question 16- A2 is a foreign citizen, thus ideally the High Court will not allow him to leave till the trial is over.
Question 17- The police cannot, without instructions from the high court. If the facts of the case are intrinsically related, the court may not allow splitting up of the case.
Question 18- The High Court may do so. The High Court usually does not look into question of facts, it only looks into question of evidence/law. It is to be noted that if it finds discrepancy in question of facts, the case will be re-directed to the lower court , but if it refers to question of evidence/law only then will the High court decide the case itself
Question 19- Yes, since non-bailable warrants can be issued against the accused under these sections, it is important for the person to be available to prove otherwise.
Question 20- Ask the High Court to look into the facts and dismiss the proceedings as the accused is nor more by filing an affidavit pleading the same.
Question 21- Under Section 115 of CPC, only when it is proved that-
(a) court exercised a jurisdiction not vested in it, or (b)court failed to exercise a jurisdiction vested in it, or (c) acted in exercise of its jurisdiction illegally or with material irregularity
Question 22- Only if the mails were malicious/ of criminal intent.
Question 23- Yes, only if there is an immediate appeal.
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