S Verma (CEO) 12 September 2012

Section 138, power of attorney and evidence of complainant

Hi,

6 years ago a case was filed under section 138 NIA by my grandfather who passed away 3 years ago. After a lot of effort, the case has just got transferred in the name of my mother who is the legal heir. Since the case is going on in Uttarakhand and she is in Delhi, its a lot of effort to go on every date, just to get another date, as the complainant does not turn up inspite of a served NBW.

I have 3 questions in this regard:

a) Can my mother make me(her son) a representative for this case. If yes, what all does she need to submit to the court and whether it would be on Delhi or Uttarakhand stamp paper ? Is there any prescribed format ?

b) Can my mother submit her part of the story on an affidavit, so that the case moves forward. If yes, what is the format and whether it would be on Delhi or Uttarakhand stamp paper ?

c) How many stages does this Sec 138 NIA case go through before a verdict is pronounced ?

Regards,

S V

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4 Replies

Rama chary Rachakonda (Secunderabad/Telangana state Highcourt practice watsapp no.9989324294 ) 12 September 2012

KINDLY NOTE THAT IN N.I.ACT.SEC.138 CASES , POLICE IS LIMITED TO ONLY SERVICE OF SUMMONS AND IN CASE ACCUSED REMAINS ABSENT ON COURT DATE AFTER SERVICE OF SUMMONS THEN ONLY WARRANT IS SENT TO POLICE STATION TO PRODUCE ACCUSED IN COURT.

BUT IT IS OBSERVED IN SEVERAL CASES THAT ACCUSED PERSONS ARE HARASSED BY CONCERNED PERSONS WHO ARE DIRECTED TO SERVE NOTICE/WARRANT.

HENCE IT IS ADVISIBLE THAT ACCUSED SHOULD NOT BE AFRAID OF THIS COURT CASE AND REGULARLY ATTEND COURT DATES SO THAT WARRANT WILL NOT BE ISSUED AND FURTHER UNNECESSARY HARASSMENT WILL BE PREVENTED.

KINDLY NOTE THAT OFFENCE UNDER SECTION 138 OF N.I.ACT IS A BAILABLE OFFENCE AS THE PUNISHMENT PROVIDED FOR SAID OFFENCE IS TWO YEARS.

S Verma (CEO) 12 September 2012

Thanks for your views. My queries were from the complainant side. Kindly help me on those.

Regards,

S V

R Trivedi (advocate.dma@gmail.com) 12 September 2012

Trial Courts are proceeding with NI cases against the guidelines laid:

These cases are to be tried out summarily:

1. Examination of complainant / Witness and taking on record evidence in the form of affidavit.

2. Cross examination of complainant / witness by accused.

3. Defense evidence.

4. Judgement.

But courts are carrying out full blown summon trial in all the cases, giving dates after dates and it takes 5-7 years even at trial court level. No one is bothered about suffering on either side. Supreme Court is printing papers after papers but doing nothing to impart training to lower court judges, it is shocking that a regulatory offence like cheque bounce takes 5-7 years, it shows utter incomptence.

B.N.Raja Mohamed (ADVOCATE) 13 September 2012

Sir,

Your mother can execute a general power of attorney in your favour by using the stamp paper of the place where she resides. Your mother has to give evidence before the court that she has executed the GPA in your favour and the permission must be sought from the court for getting you appointed as the Power holder.

First of all you try to get the NBW executed by moving the police. After his apearance the copies will be served to him and a formal charge wil be framed. Then the rial will proceed.

If you prefer to get the case settled through LOK ADALAT you file a petition u/s 20 Legal Services Authorities Act and the case will be transferred to lok adalath where you can negotiate with your debtor andget the money.