Sec. 138nia complaint
P.C. Joshi
(Querist) 20 February 2013
This query is : Resolved
Dear friends,
1.can anyone please let me know whether interest claim is allowed under 138 complaint alongwith cheque dishonour amount.
2. In one sec 138 case the accused in absconding and the arrest warrant can not be served. What is the next course left with the Complainant.
Shall be grateful for prompt reponse to above queries.
Thanks & Regards
P.C. Joshi
prabhakar singh
(Expert) 20 February 2013
1.NO
2.The accused is required to be declared ABSCONDER after recording statement of the process server u/s 229 of Cr.P.C and there after initiating proceedings of s. 82/83 Cr.P.C,that is attachment and auction of properties of accused.
Advocate M.Bhadra
(Expert) 20 February 2013
1)Complainant can not claim, but if the accused would convict then penalty may be two times of cheque amount. 2)In this condition he can approach to the Court for attachment of property u/sec.82 and 83 Cr.P.C.
P.C. Joshi
(Querist) 20 February 2013
Pls clarify :
1.In case of conviction does the accused undergo imprisonment or inprisonment as well as penalty twice the cheque amount.
2. I understand that sec. 82 and 83 (attchment of property) is not applicable in 138 cases and one has to file a civil suit for that.
Thanks & Regards
P.c. joshi
ajay sethi
(Expert) 20 February 2013
if you want interest file summary suit . the results are faster .
cheque bouncing cases take long to be disposed of .
the court may sentence accused to imprisonment if he is convicted of offence .
in addtion court may impose penalty . iit woul depend upon the wordings of court order .
Nadeem Qureshi
(Expert) 20 February 2013
Dear Mr. Joshi
I don't know, who informed you that the section 82 and 83 is not applicable in 138 NI ACT cases.
82. Proclamation for person absconding.
(1) 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.
(2) The proclamation shall be published as follows:-
(i) (a) it shall be publicly read in some conspicuous place of the town or village in which such person ordinarily resides;
(b) it shall be affixed to some conspicuous part of the house or home-stead in which such person ordinarily resides or to some conspicuous place of such town or village;
(c) a copy thereof shall be affixed to some conspicuous part of the Court house,
(ii) the court may also, if it thinks fit, direct a copy of the proclamation to be published in a daily newspaper circulating in the place in which such person ordinarily resides.
(3) A statement in writing by the court issuing the proclamation to the effect that the proclamation was duly published on a specified day, in the manner specified in Clause (i) of sub-section (2), shall be conclusive evidence that the requirements of this section have been complied with, and that the proclamation was published on such day.
(4) Where a proclamation published under sub-section (1) is in respect of a person accused of an offence punishable under section 302, 304, 364, 367, 382, 392, 393, 394, 395, 396, 397, 398, 399, 400, 402, 436, 449, 459 or 460 of the Indian Penal Code, and such person fails to appear at the specified place and time required by the proclamation, the Court may, after making such inquiry as it thinks fit, pronounce him a proclaimed offender and make a declaration to that effect.
(5) The provisions of sub-sections (2) and (3) shall apply to a declaration made by the Court under sub-section (4) as they apply to the proclamation published under sub-section (1).]
CrPc (Amendment) Act, 2005 (Notes on Clauses)
Sub-sections (4) and (5) empower the Court to make the declaration that the person is a proclaimed offender where he fails to appear at the specified place and time mentioned in the proclamation issued under sub-section (1) in relation to offences under sections 302, 304, 364 etc., of the Indian Penal Code.
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:
Provided that where at the time of the issue of the proclamation the court is satisfied, by affidavit or otherwise, that the person in relation to whom the proclamation is to be issued,--
(a) is about to dispose of the whole or any part of his property, or
(b) is about to remove the whole or any part of his property from the local jurisdiction of the court,
It may order the attachment simultaneously with the issue of the proclamation.
(2) Such order shall authorize the attachment of any property belonging to such person within the district in which it is made; and it shall authorize the attachment of any property belonging to such person without such district when endorsed by the District Magistrate within whose district such property is situate.
(3) If the property ordered to be attached is a debt or other movable property, the attachment under this section shall be made-
(a) by seizure; or
(b) by the appointment of a receiver; or
(c) by an order in writing prohibiting the delivery of such property to the proclaimed person or to any one on his behalf; or
(d) by all or any two of such methods, as the court thinks fit.
(4) If the property ordered to be attached is immovable, the attachment under this section shall, in the case of land paying revenue to the State Government, be made through the collector of' the district in which the land is situate, and in all other cases-
(a) by taking possessions or
(b) by the appointment of' a receiver; or
(c) by an order in writing prohibiting the payment of rent on delivery of property to the proclaimed person or to any one on his behalf; or
(d) by all or any two of such methods, as the Court thinks fit.
(5) If the property ordered to be attached consists of live-stock or is of a perishable nature, the court may, if it thinks it expedient, order immediate sale thereof, and in such case the proceeds of the sale shall abide the order of the court.
(6) The powers, duties and liabilities of a receiver appointed under this section shall be the same as those of a receiver appointed under the Code of Civil Procedure, 1908 (5 of 1908).
For interest, you have to filed a civil suit before civil court and both the cases may be filed and tried at same time.
Feel Free to Call
Devajyoti Barman
(Expert) 20 February 2013
Yes, these sections are indeed applicable as advised by Mr Qureshi.
Raj Kumar Makkad
(Expert) 20 February 2013
I do endorse the views of the experts.
Raj Kumar Makkad
(Expert) 20 February 2013
I do endorse the views of the experts.
P.C. Joshi
(Querist) 20 February 2013
Thanks you all of you gentlemen for your kind responses. it gives me an immense pleasure to get prompt response from the learned members.
thanks
