Dixit Shah (proprietor) 06 October 2013

Sec 138 -duration of case and dropping of partners

have filed the complain under sec 138 against 4 partners.Court had issued NBW to 2 partners ,3rd got bail and the 4th appeared in the court.Now on the previous hearing that was on 24th Oct the court had asked whether the police had received the NBW as the 2 accused stay at surat .I gave the court the proof that the surat police had received the NBW on 1st Oct based on which the court had told the police to submit the report.My querry is that

how long will it take for the police to present them in the court?

Do the police also take bribe from the accused and delay the case by not presenting them?

Can i ask the judge to atleast start the case on the partner who is present in the court?

Is it compulsory that all four of them had to appear together? If yes then all 4 would never come together unless the court strictly orders them to come together on a particular date and how long will the court take to issue such order as its been 4 years and we are getting only dates?

My Lawyer is again of the view to drop 2 persons whose signature are not there on the cheque to move the case faster,As he says that in this case recovery is not there only jail term is there and the accused agree to pay because he doesn't want to go to jail?

Generally how long the case takes to reach to its justice in sec 138?

Is there any fast track court where i can move my case so that i can get the result fast?

Can i also file a civil recovery suit against the partners as suggested by my well wisher Advocate Bhartesh Goyal?If yes then how long will this case also take as i am already facing the long duration problem under sec 138?

After getting the Judgement can the partners appeal to session court and then high court and beyond that supreme court?

How long it takes by the session court to let us know whether the appeal is accepted or rejected and vice versa in high court and supreme court? If accepted then how much would be the duration to get justice from each of the three levels i.e Session court and then high court and beyond that supreme court?

Who will bear the Court charges? Also is there any additional penalty which the accussed has to pay to drag the case duration by appealing at higher level of courts in case the decision is not in favour of the accussed?

Reply Follow

3 Replies

R Trivedi (advocate.dma@gmail.com) 06 October 2013

You are repeatedly doing copy paste...

There will always be unanswered questions in the minds of both the sides, litigation takes its own time and once you have filed the case, please have patience, in your case..

1. Complaint is to be filed against the partnership firm and then all the four partners, explaining how all the four partners are responsible for offense.

2. If NBW issued against those two partners, it will reach to a logical conclusion, your involvement at this stage is not required.

3. You need not drop any names at this stage.

4. The convict has the right to appeal/revision.

5. Cases under S.138 may take around 4-5 years at the trial stage, and after that convict can approach session court / High Court and Supreme Court, so quite a lengthy process.

6. There is as such no penalty imposed on account of lengthy trial, infact there is prima facie no provision of compensation, but as a matter of fact, courts compensate the complainant at least to the value of cheque.

7. Civil case under order XXXVII is maintainable, you discuss with your lawyer and file the same, if this gets settled without admitting triability then it will get resolved in your favor within a year or so. Ask your lawyer for court fee (which can be around 5%), the same will be refunded to you on favorable conclusion. Mostly if you have the cheque in Hand (seek certified copies from the criminal court), this goes in your favor.

8. Under S.138, you would have filed your affidavit and evidence, you close your evidence, then magistrate may fix the date for cross examination or any of the present accused can seek your cross examination. let the matter reach to this stage. If magistrate is postponing (generally he will not) the process till all the four accused are present, then you can pray that main accused is the firm and two of the natural accused are present, and hence process may continue.

9. Under NBW or subsequently PO, accused are bound to appear. They are just making there lives miserable.

This more or less answers all your questions, please do not do cut paste, and patiently wait for further proceedings, many more questions and issues will crop up.

Dixit Shah (proprietor) 06 October 2013

sorry Mr Trivedi ,i just got haywired and impatient as my case was stuck at one point and there was no movememt in it but yeah you are true that patience is the only key in such type of cases.

Also thanks for your point to point answer which would be of great help to me to keep my points in front of the court