Cheque bouncing

RAJAGOPALAN NAIR (Querist) 31 May 2012 This query is : Resolved
Cheque bouncing - For the same cheque bounced case can one:
1. File a complaint under Section 138 of NI Act?
2. Can also file a summary suit under Order 37 of CPC for the same cause?
3. If the cases are filed under the above, what will be the outcome in each suit i.e. under S.138 & Order 37 of CPC.
4. If the accused is not ready to make payment for the order passed under Section 138 of NI Act and prefer to serve the sentence in prison, is there any way to get the money.

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R Trivedi (Expert) 01 June 2012
Both the cases can be filed together, only thing is you will be required to pay court fee in civil case.

1. S.138 criminal case, is no recovery case, accused may choose to go to jail and avoid payment.

2. Order 37 is civil in nature, gets resolved faster than NI cases and recovery can be made by getting decree orders. You need to inform the court about accused properties, in case he fails to pay on court order.

V R SHROFF (Expert) 01 June 2012
I differ with R Trivedi as under.

Court Fees are payable in both the cases, say for 10 Lakh in Mumbai- Mah State
Civil= Rs. 24430/=
138 = Rs. 20000/=
WHAT IS THE DIFFERENCE??
In civil , no Warrant, no need to attend court regularly, no harassment to accused, no jail
In Criminal, non appearance can result in NBW & arrest warrant, may go in jail for few days during pending hearing too.

Both cases can be heard .

138 MUST BE FGILED WITHIN 2 MONTHS [APP]
CIVIL CAN BE FILED UPTO 3 YEARS, AFTER U GET 138 RESULT!!Limitation.

So go for 138 First.

ajay sethi (Expert) 01 June 2012
i prefer filing summary suit to recover money . you can get order in summons of judgement in reasonable period . if defendant fails to make payment then you can get a decree .
if you desire to hrass accused then you cna file 138 NI also as he will have to appear in court on all dates unless exemption given

V R SHROFF (Expert) 01 June 2012
The cheque will get stale in another one month, as only 3 months validity, [wef 1-4-12. ] one cannot go to 138 ni thereafter.
so filing 138 will create pressure, and accused know, Civil Remedy is not exhausted.
If wait till result of Execution decree , complainant loose his chance to file 138 complaint.
It's OK , if a notice for civil suit be issued.
That's why I recommend 138 first. u may comment.