N.i.act
manoj joshi
(Querist) 15 August 2014
This query is : Resolved
respected sir
i want to a silly question
in a N.I.ACT case.....sec 82/83 of cr.p.c proceed and property of accused attached and by auction govt collected full amount mentioned in cheque bt didnt paying to compalinent coz accused never attended the court ,
court says this money is only of accused wheenever he will attened the court than only after judgment this money can be given to compalinant
now my question is , is there any provision in the indian law that complainant can get that money ,,,,,
perhaps u understsnd my situation
thanks
P. Venu
(Expert) 15 August 2014
Yes, there is a basic incongruity. The reason lies in that Section 138 is a bad idea that is made into a law - that of hammering a civil wrong into a criminal offence.
manoj joshi
(Querist) 15 August 2014
soo is there ant remedy available in indian judicial syatem/
P. Venu
(Expert) 15 August 2014
The anomaly would not have arisen if a civil remedy had been pursued.
manoj joshi
(Querist) 15 August 2014
what does it mean sir?
ajay sethi
(Expert) 15 August 2014
what MR venu meant was you should have filed summary suit for recovery of your money . obtained decree and defendant property could have been attached and sold in realisation of your dues
P. Venu
(Expert) 15 August 2014
Yes, exactly. Thanks, Mr.Sethi.
manoj joshi
(Querist) 15 August 2014
respected sir
with due regards i just want to know that in n.i.act cases
accused never present in court
the process of sec 82/83 cr.p.c has already been executed
recoverd money is in the hands of revinue authorities
bt court says that his property has been attached only for presence of accused
complainent cant get ds money unless accused come to court either by nbw or surrenders
now my question is how summary suit can be filed in ds case................
thanks
T. Kalaiselvan, Advocate
(Expert) 20 August 2014
section 82 of Cr.P.c. is : 82. Proclamation for person absconding.
If Any court has reason to believe (whether after taking evidence or not) that any person against whom a warrant has been issued by it has absconded or is concealing himself so that such warrant cannot be executed, such court may publish a written proclamation requiring him to appear at a specific place and at a specified time not less than thirty days from the date of publishing such proclamation.
and section 83 says:
83. Attachment of property of person absconding.
(1) The court issuing a proclamation under section 82 may, for reasons to be recorded in writing, at any time after the issue of the proclamation, order the attachment of any property, movable or immovable, or both, belonging to the proclaimed person:
Therefore, in your case, since the case has not been tried and it has not been ascertained whether the accused is liable to pay the cheque amount or not, the court has not held the accused guilty of the offence, it will be too early to hand over the assets held in custody to you, understand.
