Remedy to accused u/s 138 of n.i act
Mihir Pandya
(Querist) 12 April 2012
This query is : Resolved
Dear Sir/Madam,
3 cases under section 138 of N.I. Act had been filed against a proprietorship firm for a claim of total sum of Rs 13 Lakhs more than a year back. During the course the accused has paid back Rs. 9 lakhs and 2 cases have been closed. The amount now outstanding is Rs. 4 lakhs. Recently the accused failed to show up in the court for the last two hearing date and the court has issued an arrest warrant against the accused. The next date of hearing is on 20th April.The accused is now unable to pay the rest of the amount as there is virtually no source of income or property with the accused. However he wants to explore the option of paying the balance in installments if it is possible. What should be done for the arrest warrant issued as the accused fears that he might be arrested when he appears in court. What are the chances of court accepting the plea of accused to accept payment in installment? Are there any previous examples where payment in installment was accepted? Are there any other options for the accused since he is financially broke and with no asset to make the payment?
Anirudh
(Expert) 12 April 2012
This is the problem of your own making.
Since you did not appear, the Court was forced to issue Non-bailable warrant. Because of this, Court will now require someone to stand surety for you to release you on Bail Bond. You have to arrange for a surety.
If you make an appearance on the next date (20.4.2012) be sure, you will not be arrested. The Court will release you on bail, provided you arrange for a surety for bail bond.
You can also tell the court that you will pay the amount in instalments. On knowing the actual position, I am sure the complainant will also agree for payment by instalments. Otherwise, there is no chance of his recovering anything from you. He really does not gain anything monetarily by sending you to jail.
If the complainant does not agree for instalments, then if you are really broke and are not having any asset whatsoever, then you have to consult your lawyer and move an insolvency petition. (This should be done as a very very last resort - because insolvency in itself has its own implications and consequences.)
ajay sethi
(Expert) 12 April 2012
as against claim of rs 13 lakhs you have paid more than 9 lakhs . 2 cases have been closed . only one case is pending .
on next date inform the court that you are willing to pay rs4 lakhs by install ments . generally complainant accept the offer as they are concerned with recovery of money and not in sending you to jail
SAINATH DEVALLA
(Expert) 12 April 2012
Dear Mihir,
The accused has dug his own grave by abstaining from appearing in the court.Once the NBW is issued it cannot be changed so easily.He has to give some kind of suriety ,otherwise the NBW will be executed.Let him produce some kind valid suriety well before the next adj,and get the NBW cancelled.No court will agree for suriety in instalments.Sometimes personal bail bonds are accepted,but not in this case.
Mihir Pandya
(Querist) 12 April 2012
In case the accuse files for insolvency, what will happen to this case u/s 138. Can filing insolvency be used as a method to pressurize the complaintaint to agree to the installment payments
V R SHROFF
(Expert) 12 April 2012
Insolvency have nothing to do accused will be punished. , if he take that stand.
venkatesh Rao
(Expert) 13 April 2012
The court is not concerned about payment or otherwise of cheque amount either in lump sum or otherwise. The is sitting to decide whether the offence has been made out under 138 or not. Even if the complainant consents for instalments, the court can not accept it. Only course is either the case is withdrawn or compromised.
DEFENSE ADVOCATE.-firmaction@g
(Expert) 13 April 2012
The accused has not done his home work properly and hence these problems.
While paying nine lacks since it is big amount he should have done overall settlement with the complainant which would have been possible.
Now appear in the court the NBW or BW will be cancelled on application with some fine or cost.
Contest the remaining case on merits and you may come out of it if proper efforts are made., since complainant as a rule make many mistakes in over confidence.
