vinod (employee) 29 December 2012

138ni case related to 498a compromise

Hi,

I have a 138NI Act case against me registered as a Private complaint in Court.

Facts of case:

My son has a 498a case running and currently on trial. 2 yrs back when we made a compromise in this 498a case I've given a cheque for Rs. 3 Lacs to the mediator as part of settlement and both my son & DIL filed mutual consent divoce. There was no compromise deed written and attached along with this MCD, it all went on faith and trust that she would get this 3 Lacs if she withdrew her 498a case before divorce.

The woman went back on her statements, she did not make any attempts to withdraw the 498a case, instead she came for MCD and obtained it 1 year ago. Immediately after the 2nd motion, the mediator put the cheque and I gave stop payment advice to my banker with a reason "commitment not honored".

Latter, after 2 months the mediator sent me a legal notice demanding 3 lacs and that he is asking this amount bcos the woman had approached him for money. I replied to the letter stating all true facts that

1) I agree that cheque was given for 3 lacs as part of compromise to settle 498a case and MCD.

2) I have issued stop payment bcos this woman went back on her words and did not make any attempts to close 498a though she got her divorce via MCD

3) The settlement was made under threats of a false 498a case.

4) if this woman is get her dues then she is encouraged to approach the 498a court and recover her amounts due to her.

My son filed many RTI's and also got replies. The current stage in 498a case is that it is on trial. THis woman's statement and cross is closed - she did not mention about this 3 lacs settlement anywhere to the court. Her father's examination in chief and cross is completed - he stated that he has no documentary proofs to show court about the dowry he gave his daughter. Her mother is declared hostile by PP bcos she tried to improve on her statements.

Now, this mediator had filed a 138NI case via private complaint demanding this 3 Lacs. He's also enclosed the FIR, Chargesheet copy of this 498a case supporting his statements.

I have collected the complaint and need to file a reply next month.

Wanted to check with esteemed lawyers - can i file discharge petition for this 138NI act, if yes, then under what sections of CrPC - is it under 239 of CrPC.

Pls help.

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2 Replies

Nadeem Qureshi (Advocate/ nadeemqureshi1@gmail.com) 29 December 2012

Dear Querist

you can file a dischrge application before magistrate u/s 245 (2) of Cr.PC because section 239 of Crpc is related to police complaint and not for private complaint.

Read the section 245:

When accused shall be discharged.

(1) If, upon taking all evidence referred to in section 244 the Magistrate considers, for reasons to be recorded that the case against the accused has been made out which, if unrebutted, would warrant his conviction, the Magistrate shall discharge him.

(2) Nothing, in this section shall be deemed to prevent a Magistrate from discharging he accused at any previous stage of the case if, for reasons to be recorded Magistrate, he considers the charge to be groundless.

STATE AMENDMENT

WEST BENGAL:

In section 245, after sub-section (2), the following sub-section shall be inserted, namely:-

"(3) lf the eviderice referred to in section 244 are not produced in support of the prosecution within four years from the date of appearance of the aecused, the Magistrate shall discharge the accussed unless the prosecution satisfies the Magistrate that upon the evidence already produced and for special reasons there is ground for presuming that it shall be in the interest of justice to discharge the aceused."