138
kavita
(Querist) 18 March 2014
This query is : Resolved
HI, i need expert assistance regarding 138 case. My father is a retired bank manager.11 years ago my 17 year bro and his friends came under the influence of sum persons whom falsely misleaded them to put a money in coco cola business.On dat note they borrowed sum of money rs 5000 each from illegal money lender who is working in police control department Amravati.my bro in exchange of money unknowing the consequences of severity of situation gave two blank cheques owned by his sign.They did so thinking dat they would repay borrowed money after collecting profit.The whole idea was given by the same money lender who is having connection wid manager of abhinav bank.(Later on above said bank manager was convicted of bank fraud and coveyed to jail in other similar fraud matter). Even bank was chosen by money lender, and they helped and convinced my bro to open the account in the name of my father.within few days money lender visited my home and asked for one lak.as we completely unaware of such mess. My father ignore his demand as once he apply for loan which was discarded by my father.As a result he filed two same identical cases against my father under section of 138 and and really bothered my family.After they turn the things in such a way that,case was introduce for trial in the court where judge was relative of money lender (police) . During trial father's signature,father's name, in order to prove the account is fraud we asked for required submitted documents to open the account. and they had none and nothing was matched.all came in negative.result should be 100% in our favour. But very last judgement day result was shockingly against us. my father goes on appeall in district court.But it took so long all by reasons of judge transfer and many. I had a question whether we can apply for quash in high court or is it possible to do anything against it in high court.
ajay sethi
(Expert) 18 March 2014
you cannot apply for quashing in high court . your father has been convicted of offence under section 138 Ni . you have filed an appeal against order of conviction . let the appeal be heard and finally decided .
R.V.RAO
(Expert) 18 March 2014
high court does not quash lower court conviction, since an appeal is already pending in district court against the conviction.
having already filed an appeal in Dt.court, now you need to wait for THE appeal disposal.
also note your father has following remedies under NI Act-- it being a bailable offence
"IN CASE ACCUSED IS CONVICTED THEN IMMEDIATELY ACCUSED SHOULD SUBMIT BAIL APPLICATION AND GIVE SURETY AND PRAY FOR TIME TO APPEAL TO SESSIONS COURT. COURT WILL DIRECT HIM TO DEPOSIT FINE AS PER JUDGEMENT IN THE COURT IMMEDIATELY THEN HE WILL BE RELEASED.
HE SHOULD APPEAL TO SESSIONS COURT WITHIN ONE MONTH FROM THE DATE OF JUDGEMENT OF LOWER COURT.
CRIMINAL APPEAL WITH APPLICATION FOR SUSPENSION OF SENTENCE AND FOR BAIL WILL BE GIVEN HEARING BY THE DIST AND SESSIONS COURT AND ON FURNISHING SURETY AS PER DIRECTIONS OF COURT INCLUDING DEPOSIT OF SOME AMOUNT TOWARDS COMPENSATION ORDERED AS PER JUDGEMENT THE ACCUSED WILL BE RELEASED ON BAIL.
KINDLY NOTE THAT THE DISPUTE MAY GO ON FROM DISTRICT AND SESSIONS COURT TO HIGH COURT AND THEN TO SUPREME COURT.
KINDLY NOTE THAT THERE IS AMENDMENT IN THE NEGOTIABLE INSTRUMENTS ACT. THE OFFENCE IS MADE COMPOUNDABLE .HENCE IN CASE THE MATTER IS SETTLED BETWEEN THE PARTIES , THEN ON AN APPLICATION IN THE COURT , THE COURT MAY ALLOW TO COMPOUND THE CASE AND CLOSE THE CASE.
KINDLY NOTE THAT THESE ARE GENERAL GUIDELINES FOR KNOWLEDGE AND REFERENCE OF ALL CONCERNED WHO ARE HARASSED BY THE COMPLAINANTS BY FORCING THE BORROWERS TO ISSUE BLANK SIGNED CHEQUES OR BY FORGERY AS IN YOUR CASE."
source:
http://toostep.com/insight/dishonour-of-cheques-and-criminal-case-n-i-act-sec-138
