Section 138 non bailable warrant against my personal Loan
Kishore Kumar Reddy Mukka
(Querist) 16 October 2009
This query is : Resolved
Hi Experts,
I have availed ICICI personal loan. I have not paid 8 EMIs due to financial issues and now the bank is planning to initiate legal action ( Section 138, non bailable warrant).
Actually I am software employee and out of country now, will be back to India in another week.
Experts, please help me what needs to be done. Is it possible to issue non bailable warrant against me. If legal action is initiated then will it impact my career and my future foreign trips. Please guide me.
Thanks, Kishore
Sachin Bhatia
(Expert) 17 October 2009
First you should file an application for bail, mentioning the reason for the non appearance on the fixed date.
If legal action is initiated then you would have to take permission from the court to go on foreign trips.
Kishore Kumar Reddy Mukka
(Querist) 17 October 2009
Thanks for your reply.
First of all, is it possible to issue non bailable warrant against person loans.
A V Vishal
(Expert) 17 October 2009
What are the facts of the case Mr Reddy, something is missing since non bailable warrant is issued only in case of serious offences, it cannot be just for non payment of a Personal loan.
Kishore Kumar Reddy Mukka
(Querist) 17 October 2009
Hi Vishal,
I took the loan 3 yrs before and was paying the EMIs on time. Past 1 year, i was not able to make the payments due to financial issues and 8 EMIs are pending and am out of country just for 2 months. I got a mail from Personal loans department manager saying that they are going to initiate legal action and would be under section 138 Non bailable warrant. this is the issue.
Thanks,
Kishore.
Kishore Kumar Reddy Mukka
(Querist) 17 October 2009
Hi Vishal,
I have made the last payment in July month and tried to settle down the loan in 2 payments but they did not accept the amount I have offered which is 30,000 INR less to which they have offered me. Mean while I got foreign trip opportunity and came to US for 2 months and going back to India next week. These are the facts and nothing is hidden.
Thanks,
Kishore
AEJAZ AHMED
(Expert) 17 October 2009
Dear Kishore,
You are saying that:
(i) " Actually I am software employee and out of country now, will be back to India in 'ANOTHER WEEK' "
&
(ii) " and now the bank is planning to initiate legal action "
& Further;
(iii)( Section 138, non bailable warrant)
What do you mean by this (ii) & (iii)..???
** How you came to know that they, ICICI Bank are planning to initiate legal action...??
** did they, ICICI Bank already issued Legal Notices to you..??
** If they issued Legal Notices, did you replied to them against the notices through your Lawyer..??
** did they already filed filed a Complaint before the Court for "Dishonor of Cheque u/s 138 of NI Act"..??
** did you OR any one on behalf of you received any 'summons' for the above from any court of law..??
Firstly:
If nothing happend till now, except defualt by you in payment of EMI, why you are in 'WORRY' & 'HURRY'.
Do you know the procedure on dishonor of cheque and next procedding:
A summary of these provisions (138 of NI Act) has been given as under for your knowledge:
1. AFTER the receipt of dishonoured cheque with return memo from bank, demand notice to be sent by registered post with AD within 30 days from the date of receipt of return memo and dishonoured cheque from bank.
2. IN demand notice, 15 days time to be given to the accused for making payment from the date of receipt of notice by the accused.
3. IN case of non-payment within 15 days, CAUSE OF ACTION arises on 16th day from the date of receipt of notice by the accused.
4. COMPLAINT case under section 138 of NEGOTIABLE INSTRU¬MENT ACT is to be filed within 30 days from the date of CAUSE OF ACTION, i.e. from 16th day of receipt of notice by the accused.
5. SA (Solemn Affirmation), i.e. preliminary evidence either by disposi¬tion or by affidavit in evidence to be completed under section 200 CRPC for issue of summon.
6. AFTER issue of summon next stage shall be for S.R. (Summon Report).
7 (a) In case the summon is served, party has to appear and Furnish Surety Bond as instructed by the Magistrate (( take bail)) and the next stage would for plea. (plead guilty or not guilty).
(b) In case the summon is served and party does not appear, Non Bailable Warrant (NBW) of arrest would be issued as per the provisions of CRPC.
So Calculate the 'Total Time' for all the above proceedings, if they are planning to initiate legal proceedings.
But you are coming to Inida, by another week, so why are you in "WORRY" & 'Hurry'.
***********
Read Section 70 of Cr.P.c.
Sec 70. Form of warrant of arrest and duration.
(1) Every warrant of arrest issued by a court under this Code shall be in writing, signed by the presiding officer of such court and shall bear the sea] of the court.
(2) Every such warrant shall remain in force until the court, which issued it, cancels it or until it is executed.
****************
On issuance of NBW against the Accused, if a petition under section 70(2)Cr.P.C. and on bail application for, Magistrate can pass an order on the application for warrant recall and release the accused.
To initiate Legal procedding against you on default in payment of EMI, as you already deposited with them cheques, filled with amount and signed by you, so they will initiate proceedings under NI Act, no consideration of personal/home/vehicle etc etc.
Kishore Kumar Reddy Mukka
(Querist) 17 October 2009
Thanks alot Ahmed for providing valuable information.
I could not find this much information even in online also.
I got a mail from bank manager so came to know that they are planning to initiate legal action.
Thanks, Kishore
Kishore Kumar Reddy Mukka
(Querist) 17 October 2009
Hi Ahmed,
I am coming back to India next week. None of my family members received any notice or document from the bank yet except e-mail.
If they send legal notice, I can reply them with my lawyer so that would be fine, right?
If they start legal process then who suppose to bear the court expenses and all. please guide me.
Thanks,
Kishore
Adinath@Avinash Patil
(Expert) 17 October 2009
UNLESS COMPLAINT U/S 138 OF N.I. ACT IS INCIATE AGAINST YOU HOW IT IS POSSIBLE ISSUE OF NON BAILABLE WARRANT.IF YOU YOU HAVE RECEIVED SUMMONS OF SAID COMPLAINT AND REMAIN ABSENT THEN YOU APPEAR IN SAID COMPLANT ON FIXED DATE AND APPLY FOR CANCELLATION OF NON BALAIBLE WARRANT.
n.k.sarin
(Expert) 17 October 2009
Mr Adinath and Mr.Ahmed rightly advised
Raj Kumar Makkad
(Expert) 17 October 2009
Mr. Kishore! Nothing to worry. You return India and deposit the amount with the bank and thereafter talk with banker, negotiate with them, I think an amicable solution shall reach. Non bailable warrant cannot be isued against you by banker and if complaint is filed in the court, you shall first receive notice. So dont worry and peacefully initiate further action.
Guest
(Expert) 17 October 2009
NANDKUMAR B.SAWANT.M.COM.LL.B.(MUMBAI),ADVOCATE
MOBILE.09325226691, 09271971251,
e.mail.adv.nbsawant@yahoo.co.in
e.mail.nandkumarbs@sify.com
REGARDING THE N.B.W.IN N.I.ACT SEC.138 CASE KINDLY NOTE THAT.
1.YOU HAVE NOT YET RECEIVED ANY NOTICE UNDER SECTION 138 OF N.I.ACT FROM THE SAID FINANCER.
IT IS MANDATORY THAT COMPLAINENT SHOULD ISSUE A NOTICE UNDER SECTION 138 OF N.I.ACT REGARDING THE DISHONOUR OF CHEQUE TO THE PERSON ISSUING THE SAID CHEQUE. IT SHOULD BE SENT BY REGISTERED POST A.D. AND AFTER SERVICE OF SAID NOTICE WITHIN 15 DAYS IN CASE REPAYMENT OF AMOUNT OF DISHONOURED CHEQUE IS MADE THEN MATTER ENDS.
2.BUT IN CASE THE SAID REPAYMENT IS NOT MADE WITHIN 15 DAYS THEN THE COMPLAINENT CAN FILE A CASE UNDER SECTION 138 OF N.I.ACT WITHIN ONE MONTH OF SUCH SERVICE OF NOTICE TO THE ACCUSED.
3.SECTION 138 OF N.I.ACT SUMMONS IS SENT THROUGH POLICE FOR ATTENDING THE COURT ON GIVEN DATE WITH SURETY .POLICE HAVE NO OTHER ROLE TO PLAY OTHER THAN JUST SERVICE OF SUMMONS OF COURT. HENCE DO NOT BE AFRAID OF THIS MATTER.
4.ONCE SUMMONS OF COURT IS SERVED TO ACCUSED THROUGH POLIE, AND STILL ACCUSED INTENTIONALLY REMAINS ABSENT THEN THE COURT MAY ISSUE WARRANT AGAINST ACCUSED THROUGH POLICE AND ACCUSED WILL BE ARRESTED AND PRODUCED BEFORE COURT.
5.IN CASE ACCUSED COULD NOT ATTEND COURT ON GIVEN DATE DUE TO SOME GENUINE REASONS OR SICKNESS THEN ON AN APPLICATION AND ACCUSED APPEARING BEFORE THE COURT EVEN BEFORE THE NEXT DATE COURT MAY CANCELL THE WARRANT ON PAYING SOME PENALTY WHICH MAY BE RS.100/- OR EVEN RS.1000/-DEPENDING UP OF REASONS MENTIONED IN THE WARRANT CANCELLATION APPLICATION AND AS PER THE OPENION OF THE COURT.
6 IN YOUR CASE YOU HAVE NOT YET RECEIVED NOTICE OF DISHONOUR OF CHEQUE AT YOUR GIVEN ADDRESS.HENCE FIRST JUST CONFIRM THE SAME AND ACT ACCORDINGLY.
7IN CASE YOU NEED ANY FURTHR HELP OR INFORMATION YOU MAY KINDLY SEND DETAILS OR CALL.
WITH BEST REGARDS TO YOU YOUR FAMILY AND FRIENDS.
THANKING YOU
YOURS SINCERELY
NANDKUMAR B.SAWANT.M.COM.LL.B.(MUMBAI),ADVOCATE.
PJANARDHANA REDDY
(Expert) 17 October 2009
DEAR KISHORE REDDY,
DO NOT PANIC, IF THE BELOW IS THE PRESENT SITUATION..
the bank is planning to initiate legal action ( Section 138, non bailable warrant)
PLEASE SEND EMAIL AND LT BY COURIER TO STOP ANY LEGAL PROCEDINGS, EXPLAINING UR DIFFICULTIES.
2. HE CON NOT ISSUE NBW IN 138
3. UR CASE IS BAILABLE AND COMPOUNDABLE I.E ANY TIME DURING COURSE OF TRAIL,EVEN JUDGMENT DAY/APPEAL TIME ALSO U CAN COMPROMISE.
4. WE WILL HELP IN SETTLING THE ISSUE AMICABLE EVEN IN ONE TIME SETTLEMENT WITH NEGOTIATING BANK. THE NI ACT IS AMMENDED::
The main object of the section 138 of the said act is to inculcate faith in the efficacy of banking operations and credibility in transacting business on negotiable instruments.
ALL THE BEST...
adv. rajeev ( rajoo )
(Expert) 17 October 2009
dnt worry nothing will happen, only on the first instrance NBW will not be issued, only after proper service of summons and if you failed to attend the court then only NBW will be issued.
in case of NBW issued it will be recalled immediately.
Elango
(Expert) 17 October 2009
Mr.K, first of all, if at all you want to get rid of the problem, talk with the ICICI office and make the repayment, either in full or in part. The Law of the land is not to get rid of the wrongs done by you, but to establish your rights, if you are not able to, by yourself. Make some repayment first, take time from the Bank Office and correct your wrong - preserve your future
H. S. Thukral
(Expert) 17 October 2009
The notice from the bank is a coercive tactic to secure payments over due. Complaint under section 138 lies only when a cheque is returned unpaid due to insufficiency of funds. You have not said that you issued any cheques to discharge the liability on EMI's. So no case shall lie under 138 NIA. In the absence of issuance of cheques which have bounced it is only a civil liability and NO criminal complaint can be initiated. Court can issue NBW to secure your presence to reply the charges. If any criminal case is initiated against you, let a lawyer appear on your behalf and seek exemption of your personal appearance. Do not panic on notice.
Jithendra.H.J
(Expert) 17 October 2009
cool,
bank cannot initiate action under 138,
Rajinder Bhatia
(Expert) 17 October 2009
Do not panic dear, my learned friends have advised you properly.
