real implication of s 138 NI Act

Dr. V.N. Tripathi

Advocate, Allahabad High Court. 9839527421
Dear VN Tripathi,

You are perfactly right in chanting correctly,

NIAct 138, 141, etc, are just fooling uneducated litigants by lawers,

The judiciary doest not give any support to real problems,

Can never punish any one,its a open secret fact,

Citing Kasabm,Afjal guru,ete,. many more,,,,

its a waste of time, money, marry go rounds,  natonal waste of time by judiciary itself.

I wrote some points to mr Soli sorabji,

why not you as solicitor gen, suggest some concrete solutions, citied,

Cheque is not to be issued by any one  a press released in Londom six months before.

in our country, crorres of cases are pending,

 thousands crores funds are lockedc in  with no ones care,

All ministers, CM,PM, LAW MINITERSRE, PREZ,ARE  bussy in inogarations, with maxm conforts in Air conditioned,

Will definiite generate Naals,terrorism,etc,.

I am victimed by five -six cases, no one will be able to pay in my life it seems?

Mr. Justice Dalveer Bhandari, Chief Justice of Mumbai High Court, who was elevated to SC, said in a judgement:

(d) Every judicial officer must ensure that at least four cases in a month are disposed of by reasoned judgments.
138 cases are increasing in exponential proportion. They can never be decided in the next hundreds of years.Dr. Tripathi is right. 138 serves no purpose.

Dear Mr. Agrawal,

Honorable Justice Bhandari is my Guru in the sense that he had examined my Ph.D. thesis and also took pains to come to Varanasi to orally examine me. He is a great academician as well.

In my observation, practical implication of s. 138 is that:

1. Persons who would be carelessly (but not dishonestly) issuing the cheque are now careful.

2.  Proceedings under this provision ultimately results in compromise by payment after great harassment to the victim.

3. Lawyers are main beneficiary from proceedings under this provision. Almost all cases come up to the High Court for quashing of proceedings thereby feeding at least two  Lawyers one at District level and other at and High Court level.

what if a party has to recover genuine amount from the other and that other party dishonestly issues cheque in favour of the former, knowingly his account does not have suffecient funds? what is the speedy remedy available to the victim. Suit for recovery or complaint u/s 138? No doubt there is a criminal case of 420 but the victim needs his money and preferably with interest.

The value system in society has changed. Was there corruption in judiciary just 30-40 years ago? Was it as much as it is now recognised and the CJI and Law Minister openly admit it; Aam Admi already had long ago accepted to live with corruption in judiciary.

What happens to 138 cases or any other case is history. Making law is one thing, giving decision as per one's capacity of understanding law is quite another. Giving decision as per one's choice is still quite another. But implementation of the decision?

Supreme Court can't have a hangman to hang Afzal Guru. Its job is over. Why should the President have the clemency power after SC has passed the death sentence? POLITICS.

The real implication of 138 NI Act is not goes only upto the benefit of Lawyers but many steps more forward

1. It encourages the offenders.

2. Develops dishonesty and distrust in individual and society.

3. the individual becomes self centered.

4. Even common man gets facinated of such offence to become rich and success. The flooding of cases u/s 138 is the main reason of improper implementation of 138 N.I.Act.

The lawyer are only immidate visible beneficiary of 138 N.I.Act. The ultimate gainer is CRIME.

As far as the encouragement of the offender is concerned, it is not the law which encourages any offender to do more and more offences, it is the system which encourages by delaying the matters before it. Further, the society gets distrusted because of the inordinate delay and long procedural remedy in disposing of the cases. It is once again not the law. Law is for the people to provide remedy. The implimentation of the law makes the law worse and blameworthy. So, we cannot blame the provisions of the N. I. Act. The guilty is the executive and the system of judiciary which gives it inordinate delays. Moreover, we cannot say that the law of N. I. Act is to feed lawyers because the lawyers advices the individual who has been issued erroneous cheque and to make the individual understood about the law and he is paid for that which is his profession. The law has been enacted to provide punishments to the offenders, it is the other thing that the delay in procedure makes the law worse and blameworthy.

there is a judgement of Justice Dalvir Bhandari when they were in delhi high court "titled as United Ink Ltd. V/s State and others in  the said judgement several guidelines were issused for quick disposal of the case under section 138 of the N.I. Act.  

I have already posted it. Herewith again what Justice Bhandari said. Herewith again:

Ksl And Industries Ltd., (Formerly Known As Krishna Texport Industries Ltd.), A

Company Duly Incorporated Under The Companies Act, 1956 vs Mannalal Khandelwal

And The State Of Maharashtra Through The Office Of The Government Pleader

Intervenor: Mr. Vijay Agarwal, President on 1/2/2005

JUDGMENT

   Dalveer Bhandari, C.J.

   40. Immediately after the presence of the accused is secured, an option be given to him whether, at that stage, he would be willing to pay the amount due, along with reasonable interest, and the Court may consider passing suitable order. But where the accused is not willing to pay the principal amount with interest even at that stage, the Court may fix up the case at an early date, and ensure day to day trial of the case. In order to accomplish the underlying object of the Act, we deem it appropriate to pass the following directions:

     33 (a) Experience reveals that enormous time is spent at the stage of summoning / serving the accused. The Court must adopt pragmatic methods and must serve them by all possible means of service, including Email. The Court would be justified, in appropriate cases, to take the help of concerned police station for the service on the accused. The Court should avoid giving long dates.

Instead, the Court must repeatedly issue summons to secure the presence of the accused. The Court must ensure that the accused are not permitted to abuse the system.

     (b) The Court concerned must ensure that examination in chief, cross examination and reexamination of the complainant must be concluded within three months of assigning the case. The Court has option of accepting affidavits of the witnesses, instead of examining them in Court. Witnesses to the complaint and accused must be available for cross examination as and when there is direction to this effect by the Court.

     (c) Complaints must be disposed of as expeditiously as possible, and in any event, within six months from the date when the presence of the accused has been secured. In case the concerned judicial officer is not able to dispose of the complaint within six months, then, the concerned judicial officer must submit a report to the concerned Sessions Judge, indicating the reasons which led to delay in disposal of the complaint. The report submitted by the concerned

judicial officer shall be taken into consideration while evaluating the performance of the concerned judicial officer.

     (d) Every judicial officer must ensure that at least four cases in a month are disposed of by reasoned judgments.

     (e) The trial of these complaint cases under Section 138 of the Act be continued from day to day until its conclusion.

     (f) The complainant must ensure that the legislative intention is carried out in dealing with complaints under Section 138 of the Act.

     (g) The Registrar General is directed to monitor that directions given by the Court are scrupulously followed. A comprehensive quarterly report be submitted to this Court indicating whether directions of this Court are followed.

   41. All these petitions are accordingly disposed of. Rule is partly made absolute in Criminal Writ Petition No. 1228 of 2004. All intervention applications stand disposed of.

   42. These petitions would, however, be listed on 1 st March, 2005 only to ensure compliance of our judgment, as mentioned below.

   43. We would like to place on record that presently, there are 727 posts of Civil Judges, Junior Division, in the State of Maharashtra. The entire process of filling these vacancies is complete, as far as this Court is concerned. The Civil Judges, Junior Division, and Metropolitan Magistrates are already overworked; and giving them additional burden may not yield any fruitful and

desirable results. About 4 lakh complaints under Section 138 of the Act are pending in various Courts. According to the legislative intention, these complaints must be disposed of expeditiously. The only way to achieve this object is to have larger number of judicial officers. Therefore, in the larger interest of justice, it has become absolutely imperative to create at least 100 additional posts of Judicial Officers in the Cadre of Civil Judges, Junior Division, in the State of Maharashtra.

   44. We direct the Chief Secretary of the State of Maharashtra to ensure that 100 additional posts of Civil Judges, Junior Division, and their supporting staff are created forthwith, and in any event, within two months from today. 45.Even after receiving sanction from the State, to complete the entire process, at least time of few months would be required.

   45. Therefore, looking to the urgency of these matters, we direct the Registrar General to appoint following judicial officers in various cities of Maharashtra to deal with cases under Section 138 of the Act exclusively:

Sr. No. District No. of officers

 1 Mumbai 15

 2 Pune 12

 3 Nagpur 4

 4 Ahmednagar 2

 5 Aurangabad 1

 6 Nashik 2

 7 Kolhapur 1

 8 Solapur 1

 9 Thane 2

10 Satara 1

11 Jalgaon 1

                Total 42

   46. The Registrar General is directed to post the officers as enumerated in preceding paragraph within two weeks.

   47. We direct that the copies of this judgment be sent to the Chief Secretary and the Law Secretary of the State of Maharashtra within three days for immediate compliance.

   48. These petitions are disposed of. These petitions would be listed on 1 st March, 2005 for limited purpose of ensuring the compliance of our judgment.

 -----

So I submitted an appln under RTI to Mumbai HC to find out how the order of Justice Bhandari has been implemented. You will notice from the above that the Judge had also asked the Registrar of HC and also the Chief Secretary of Maharashtra Govt to take action on the order.

The PIO of HC has informed me and I quote:

The information in respect of judicial proceedings or records can not be supplied under the RTI Act, 2005. But you may obtain the said information as per the procedure prescribed in the Bombay High Court Rules and Orders.

Unquote

I was not asking for judicial proceedings but action taken by the Registrar on the Judge’s order. The rest is history.

This is one side of story that courts must dispose cheque cases quickly. Every body presumes that the person who has given cheque is guilty and should be hanged prior to AFZAL GURU or other similar terrorists.

But what about the loan sharks who give ten thousand to a person in need and take a blank cheque,file a case for one lac or more .

The law is a double edged sword .one should  get his  money  quickly what about these loan sharks. Before rushing to put your opinion pl enter the shoes of the sufferer one on this thread has pathatically stated it.

Dear Sir/Madam,

It is my considered view that, in order to avoid filing false cheque bounces or to on believe judiciary system. The present judiciary system has to be changing in respect of cheqie bounce or section 138 of N.I.Act to be amended.

Let hon’ble court fix the court to cheque bounce cases as civil recovery cases.

Example:-

If  Cheque amount more than Rs.50000/- court fee is……%

If cheque amount more than Rs.50000 not less then Rs.5 lakh –court fee is……………%

If court implement this system most of cheque bounce cases may be avoided and we save court time and can expect landmark verdict and victims can get relief as sought by them.

This my personal view.      

I think we need serious amendment in 138 NI 

Already when accused is presumed to be guilty and principal reverse onus is embedded in these cases then I think like in SERFAESI ACT, the trial court should pass order in favour of Complainant if ingredients of 138 is satisfied and if the accused feels that he is not guilty then he should go for appeal. By this way people would realise seriousness of cheque

Most of the cases pending under Section 138 N I Act regarding Criminal Liability is regarding Territorial Jurisdiction. Latest authority of case law available with respect to Section 138 N I Act [Criminal Liability] is of Delhi HC. No such case is pending in SC for Appeal.

Although the case Dhananjay Johri v. Naveen Sehgal helped a lot in making the grounds clear but the dilemma under Criminal Liability is still the same. Supreme authority can not ignore the previous precedents on grounds of the recent one of Delhi HC. Supreme Court need to act as soon as possible in order to provide a clear cut platform for cases arising U/S 138 N I Act so as to avoid any such contradictory judgements. Once Supreme Court comes to a certain conclusion, it will be easier for pending as well as future cases involving jurisdiction issue U/S 138 N I Act to be disposed off on time without any unnecessary delay. It will save both the time of court and the pocket of the victim...

@Aproov Joshi

In the Supreme Court the SLP is pending regarding question of jurisdiction which pertains to the matter decided by Hon'ble High Court of Delhi in case titled as “Delhi High Court Legal Services Committee VS GNCT Delhi” WPC No. 11911/2009 decided on 23.09.2009.