Cheque bounce case u/s ni act
Srihari P
(Querist) 28 March 2015
This query is : Resolved
Dear Sir, I need your advice with regard to the following. I am from Visakhapatnam.
One Company in Bhubaneswar issued the cheque for Rs.40 lakhs in 2008 March against the material supplies. That cheque got dishonoured and cheque bounce case under NI act has been filled. Proper procedure was followed and a notice was issued .. reply was received from the company saying that the accounts need to be reconciled. The Accused (MD Of the company) attended and gave the statement that the cheque was issued but material was not supplied and pleaded not guilty.
In June 2012 We filled all the documentary evidence and final affidavit was filled with the court and the accused counsel has to do cross examination.
From then the accused and his lawyer stopped attending the court (since almost morethan 3 years). The court issued nonbailable warrant on Bhubaneswar Police station . But since then the police people are not executing the warrant. I have been following up with police department right from Commissioner of police, DDCP, ACP, police station incharge. I met them personally .. I sent lot of requests through Registered posts and emails. In the mean time during 2014 he came forward and gave the Written agreement to settle the amount with nominal interest. He paid abt 20% of the amount over 15 months and now he started refusing to pay the balance amount and honour the settlement agreement also.
Now pl advice the following :
a) What is the option available to me when police department is not executing the NBW since 3-4 years. Can I have any option to approach high court or so. Or can I ask the order from the court for the attachment of his property.
Pl note that he is rich and has the assets worth few 100 crores. But trying to cheat as his natural skill.
b) Can we request for the exparte order since he is absenting.
c) we have the strong evidence on this matter. since he has mentioned that he had not taken any material from me, can I take criminal action under 420 etc since the criminal conspiracy is cleared in his statement in court. Can I file with the court request to refer the case to the police station at vizag and investigate.
Kindly advice in this matter which can really help me to go forward since I am in depression and loosing confidence on the week indian legal system. This system is not at all effective to help the sufferers . I have been waiting for the justice since last 8 years. but nothing is happening..
T. Kalaiselvan, Advocate
(Expert) 28 March 2015
If the NBW is pending for more than four years, how come he made a settlement in the year 2014 for a part amount? I think you have not followed with the police properly, i.e., not only getting a warrant to the police but should also follow it meticulously with the police that side in person, take the police to his residence and get him remanded, after which you will find the desired result. Donot blame the Indian legal system for your lethargy.
Dr J C Vashista
(Expert) 29 March 2015
1. I agree with expert Mr. T. Kalaiselvan, Advocate.
2. If NBW were returned unexecuted OR the accused untraceable (find out the reason for non-execution) did you seek help from the court to convert the NBW into proceeding u/s 82/83 Cr. PC declaring the accused as PO?
3. And/or whether the ACP/DCP/SSP summoned by the court for non-execution of NBW?
4. Being a case u/s 138 of NI Act, 1881 it is governed by Cr PC, you will agree with me isn't it? Accordingly criminal case cannot be decided in the absence of accused i.e., ex-parte.
4. If you have good evidence in your favour, did you consider to institute suit u/o XXXVII CPC for recovery of the amount, which you can do simultaneously?
Srihari P
(Querist) 29 March 2015
Dear Mr. Kalaiselvan & Mr. Vashista, Thanks for your kind response and valuable advices. I agree about the significance of the NBW. But here I am nonlocal in Bhubaneswar and I have certain limitations in dealing with the accused. I have been depending on the police people. I have been vigorously following up with them I have all the documentation of the 'representations to police department', register posts, visits to Bhubaneswar etc. since last 4 years. But whenever police try to catch him, he is hiding for some days and police people are just going to his house for 1-2 times and become silent. Police people are also are bit cautious and could not be harsh because of his financial position locally. Pl also note that 5 such NBW warrants are pending with the same police station. He had been convicted in Bhuubaneswar court in other cheque bounce cases and now those are in appeal at High court. This is the practical situation. I need the advice within the legal system to 'break this' lagjam.
In the said circumstances, pl guide me with regard to the following:
a) Pl explain abt the 82/83.
b) Can we summon the police people by the same court.
c) Can we file suit u/o XXXVII CPC now, since it was happened in 2008.
d) Can we file Writ petition in Odissa High court with regard to execution of NBW.
e) Can we atleast request our court to take the evidence of the witness at this moment since it is already 8 years and one important witness is in ill health.
f) Pl also advice, whether we can file the settlement agreement with the court as a proof of due since he clearly committed that he is due and made the petty amounts through bank account.
Kindly advice
DEFENSE ADVOCATE.-firmaction@g
(Expert) 29 March 2015
First of all where you are located and where the case is filed.
If the case is not filed at the place of drawee bank than it will be transferred means will be returned to you for filing at proper place.
Yes you can file summery suit for recovery with delay condone application . And if you say you have evidence than it will be easy procedure.
Looking to your given details it seems your are just following up to create records and no serious efforts. No body can give you results on a platter.
Go to the place and stay there and follow up since you say he has many cases and has gone to HC so there will be many many and many links for you to locate the party.
Srihari P
(Querist) 29 March 2015
I am located in visakhapatnam and the case is filled in Visakhapatnam in 2008. Now the examination of the accused is over in 2011. We filled final affidavit UNDER ORDER 38 OR CRIMINAL RULES OF PRACTICE R/W SECTION 145 OF THE NEGOTIABLE INSTRUMENTS ACT is filled in 2013. Since then the Accused and his advocates are absent and NBW was issued.
I am sure that the question of Jurisdiction doesn't arise.
Pl advice we can file summery suit now also after 7 years.
Pl advice
ajay sethi
(Expert) 29 March 2015
you cannot file summary suit after period of 7 years . claim is barred by limitation
Srihari P
(Querist) 29 March 2015
Dear Sir
Thanks for your advice. Pl note that the cheque under question is bounced in August 2008 which is lessthan 7 years.
But however material was supplied on Feb 2008 which is crossed 7 years.
kindly ADVICE
Srihari P
(Querist) 29 March 2015
Sir, can anyone advice me whether we can file the petition for the proceedings under section 82 & 83 , in the same court which had issued the Non bailable warrant
DEFENSE ADVOCATE.-firmaction@g
(Expert) 29 March 2015
After final affidavit u/s 145 no cross has started so it will attract the ruling of Dashrath case which was later again confirmed by same bench in shivgiri case.
Guj High court recently and Delhi HC on 26th Narch 15 has further cleared this ruling that even after filing of 145 affidavit and even the order to call the deponent for cross but actual cross has not started than the complaint must be returned.
Tell your advocate to go through these latest rulings on jurisdiction and first tackle this issue than think of moving further.
Srihari P
(Querist) 29 March 2015
Dear Advocate defence sir, thanks for your kind advice. I have gone through the said judgement of the delhi high court and Gujarat high court. the following sentence was used at the end points.
'A bare reading of Section 145(2) of Negotiable Instruments Act, 1881 makes it clear that mere allowing of application under Section 145(2) Negotiable Instruments Act, 1881 is not sufficient and the complainant is required to be summoned and examined'.
In our case the accused had been summoned and his examination was done in 2011 itself and we filled the final evidence in 2013. Our advocates are confident that this case need not be returned.
Pl advice your opinion
DEFENSE ADVOCATE.-firmaction@g
(Expert) 30 March 2015
Read the law and citations with the help of an advocate.
The complaint will be returned to you and if you do not file it withing time limit it will stand dismissed.
