Sec.138 of ni act:sec.239 of cr.p.c.
Suresh Babu Rai
(Querist) 14 March 2013
This query is : Resolved
Respected Sir !
I have filed a complaint under Sec.138 of NI Act against a Firm, the Firm is A1, MD of the FIrm is the A2, Managaging Partners are A3 and A4. I have taken all the mesures as contemplated in the Act. Court has served the copies to Accused and the matter is posted for their examination to plead their guilty or not. No quash poceedings or similer if filed by the none of the Accused till to date with appellete court. At this juncture the Accused No.1,3 and 4 have filed a petition under Section 239 of Cr.P.C praying the trial court to discharge them.
Can the trial court entertain such discharge petition in NI Act ? Is there such provision ? if so kindly go through the same.
Thanking you one and all, for your valuable time.
Raj Kumar Makkad
(Expert) 14 March 2013
There is no such stage as sought by accused at this juncture when the evidence on behalf of the complainant has been closed and the case is posted for the evidence of the accused persons.
Raj Kumar Makkad
(Expert) 14 March 2013
The application in the given facts shall stand dismissed and the accused persons shall be directed to bring their evidence if any instead o moving such application at such belated stage.
ajay sethi
(Expert) 14 March 2013
MM cannot entertain discharge petitions under 138 Ni . if accused are aggrieved they have to move session court
Suresh Babu Rai
(Querist) 15 March 2013
Thank you for responding Sir!More perticulerly Raj Sir and Ajith Sir! You the people respond immedietly for quireis of the new commers. You are great and your juniors are very lucky. Coming to the point, as the Raj sir siad the evidence is not commenced, it is very early stage of (for copies) the case, as I said it is posted for examination of accused. At this stage some of accused has filed discharge petition. It is clear that there is no such provision in NI Act to entertain the discharge petition at any stage of proceedings of NI Act. I am I correct Sir?
Raj Kumar Makkad
(Expert) 15 March 2013
First of all accept my thanks for your appreciation.
Now come to point. 138 NI complaint is not other than a criminal complaint wherein the Criminal Procedure code is fully applicable. There is no such law which prohibits the accused persons to move such application. Criminal procedure code includes discharge application even so the right cannot be denied but the stage at which such application has been moved, is not proper and thus the application at this stage is nothing but an abuse of process.
DEFENSE ADVOCATE.-firmaction@g
(Expert) 15 March 2013
Section 239 is under chapter XIX OF crpc applicable to police cases only.
NI 138 cases are summons cases for which provisions of XX crpc are applicable.
And even in warrant cases applications u/s 239 can be moved only after evidence is taken and not earlier.
However for the complainant your story has just started now and it is only titles which new advocates play to get time.
There will be long long ups and downs in the contest.
