Cheque bounce case
ANIL KUMAR 8867907494
(Querist) 29 January 2013
This query is : Resolved
Dear learned friends
Pls clarify when verifying officer of the magistrate court has returned the file stating that complaint is not proper thereafter after lapse of one year complaint was re- submitted, office has made a note that objection complied hence judge has issued notice , my question is whether complaint is maintainable ???? pls assist with citations .....tks
Raj Kumar Makkad
(Expert) 29 January 2013
If the court officer has returned the complaint for want of making correction in the complaint on any technical reason then the complainant do not get extension of such long time for that purpose and as such the complaint shall not be treated as filed at the initial time and it shall be barred under limitation. The process is illegal which requires to be challenged by way of filing revision under section 397 (1) of Criminal Procedure code.
Advocate M.Bhadra
(Expert) 29 January 2013
Filing of Cheque bounce case u/sec.138 N.I.Act is time bound,generally court would not consider,failing which the complainant can seek alternative relief by filing civil or criminal case.
ANIL KUMAR 8867907494
(Querist) 29 January 2013
Sir The stand taken by the otherside is complaint was presented within limitation it was returned back to comply office objection but time to comply those office objection was not specified hence it is not barred by limitation...... sir how to defend in this scenario
Anirudh
(Expert) 29 January 2013
If no time was specified for rectifying the mistake or to correct any error, then the correction is to be effected within reasonable time. In the kind of 138 case, one year is highly beyond the reasonable time and hence not maintainable.
R Trivedi
(Expert) 29 January 2013
NI Act is a special law, and time table must be adhered to. Yes, there is an amendment that complaint can be filed after 30 days of cause action with valid reasons, but not in this case.
Court can hold the cognizance on two accounts:
1. For further investigation
2. For correcting problem in the complaint
For Pt#1, there cannot be any time bar, because it is under judicial order. For Pt#2 if the mistake is attributed on the part of complainant, then court cannot admit the complaint after one year. Because in such cases, the complaint is not at all admitted at the first place. Correcting any mistake is an ongoing process in the trial with an absolute right with accused to dispute the same. So there is no question of any correction in absence of accused if the cognizance is not take. prior to that court cannot ask complainant to correct the complaint, court either accepts or rejects or orders for further information/investigation.
R Trivedi
(Expert) 29 January 2013
For example if the court finds that original cheque or bank clip is not attached, the court cannot admit the complaint and in that case complainant must come to the court along with cheque or bank slip within time table. He cannot come after one year say that now I have brought this.
Please tell us about the court objection at the first instance.
ANIL KUMAR 8867907494
(Querist) 29 January 2013
Sir the office objection for rejection of complaint was for 3 reasons : 1. Original cheque was not produced for verification
2. Court fee not paid
3. Vakalath not filled
To comply these objection complainant has taken more than one year inspite of it court without considering it has taken as objection complied and issued summons to accused
Anirudh
(Expert) 29 January 2013
While filing your defence under Sec. 145(2) on the first date of hearing, you also have to give appropriate defence on merits.
ajay sethi
(Expert) 29 January 2013
you have been grossly negligent . how can you file complaint without paying cort fee and without vakaltnama. generlly court insists on production of original cheque for verifcation . any lawyer dealing with 138 NI case knows that some basic prrcautions have to be taken while filing 138 Ni case .
now you have taken 1 year to remove the objections . complaint ought not to have been entertained by court .
ANIL KUMAR 8867907494
(Querist) 29 January 2013
Sir pardon me , u have mistaken me iam appearing for accused not for complainant
ajay sethi
(Expert) 29 January 2013
good then you have good case to fight for .
Raj Kumar Makkad
(Expert) 29 January 2013
The complaint is not maintainable at any cost. File revision before revisionist court
prabhakar singh
(Expert) 29 January 2013
Yes! I agree with Mr. Makkad. The second complaint does not lie at all for a cause of action arose year before.The procedure adopted by magistrates' court verifying officer is very strange.This time he was required to report that complaint is time barred.
V R SHROFF
(Expert) 30 January 2013
It seems , it is not second complaint.
It was one and the same complaint, but process was not issued as verification was pending for original cheque/ vp & court fees.
It do happen that original chq is misplaced or lost. & no adv file VP, if compl w/o supporting Doc to issue process.
Once those objections are cleared, accused have no remedy but to defend himself.
If accused go for revision, or appeal, it will be landmark Judgement, binding in future , to allow or reject such complaints w/o vp. ct fee & ori chq...
Raj Kumar Makkad
(Expert) 01 February 2013
*Anil! I totally disagree with the subsequent reply of Shroff in view of the facts told by you that the complaint could not be filed due to want of stamp duty and one more mistake and that duty was paid only after one year so there is no scope to entertain such complaint.
138 NI Act is hyper-technical issue related with time and days which can never be enhanced even with filing of the delay condone application.
You being an accused in this case, move a revision before Sessions court as already advised and don't lose time as the same is also required to be filed within a period of 30 days from the date of receipt of the notice.
V R SHROFF
(Expert) 01 February 2013
138 ni
DELAY condonation is allowed, AND NOW BECAME A RULE, RATHER THAN EXCEPTION in Filing 138 N.I. Complaint.
Any way, Wait and Watch for Judgement. Let Court Decide, as it is a special case.
[ It is blunder of Advocate who filed this complaint]
I admitted and conducted proceeding many 138 Time Barred NI complains.
DELAY WAS CONDONED.All my Delay Condonation Applications were allowed, and process was issued against accused, even after a year.
Raj Kumar Makkad
(Expert) 01 February 2013
*Shroff! Can you please cite some of the judgments of high courts and supreme court of india which became base for delay condonation applications filed by you in NI cases vide which your complaints were entertained even though those were filed belatedly?
it shall definitely benefit at least to me.
R Trivedi
(Expert) 03 February 2013
In NI Act, the complaint can be filed after the expiry of 30 days of stipulated time period, but in this case the complainant has to explain the reasons for delay along with delay condone application.
This case is different, the first instance was incomplete on account of complainant fault, per say there is no technical issue involved, it is shear negligence on the part of complainant side, and the court at the first place could not have taken the complaint on record, if at all taken then court cannot take cognizance after one year. As stated earlier the shortcomings of this nature must be rectified within stipulated time frame. For example even if the cheque is lost, the case is lost, rather it is no case at all.
As far as technical matters are concerned, courts generally go by merit, but honorable Apex Court has ruled that there is no law that court must decide only on merit and ignore the technicality, accused has lawful right to raise the technical issues.
R Trivedi
(Expert) 03 February 2013
Below is what Civil Proc Code says !!
[Provided that the time fixed by the Court for the correction of the valuation or supplying of the requisite stamp-paper shall not be extended unless the Court, for reasons to be recorded, is satisfied that the plaintiff was prevented by any cause of an exceptional nature from correcting the valuation or supplying the requisite stamp-paper, as the case may be, within the time fixed by the Court and that refusal to extend such time would cause grave injustice to the plaintiff.]
For Criminal cases this should be more rigorous. You are safe.
