S N Thakur (Entrepreneur) 22 September 2013

Reasons sufficient? restoration of a case u/s 138 n. i. act.

The main Topic named Remedy for a case u/s 138 N. I. Act. - dismissed for default available at the URL

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the following is a letter that I have intended to submit to my advocate. Does it make any sense? Please advice.

Complaint C-713 / 2006 filed by the complainant on 03.08.2006 under section 138 of Negotiable Instrument Act. 1881 and the complaint was dismissed for default on dated 16.08.2013. Meanwhile, 7 years elapsed.

Now, I am about 49 year old semi-self employed businessperson, maintenance of my livelihood depends on my income from my business. Moreover, adequate money is required to run the business.

However, a considerable portion of said money stuck with the accused due to his default in payments. As such, I have filed the instant complaint C-713/2006 on 03.08.2006 under section 138 of the Negotiable Instrument Act. 1881 with my understanding that since the Act provides speedy remedy and swift trial to the complainants in respect of cheque bouncing cases; I have expected to be able to rearrange my business as soon as a speedy remedy given to me under the said Act.

Meanwhile seven (7) years elapsed from the date I have filed said complaint, since then my business income has been reduced to dust, day-by-day, as such I have to find additional opportunity to increase my income that compelled me to go to another State of India, very distant from West Bengal.

An income opportunity made me to go to Jamnagar, Gujarat and I have rented a house there until 09.07.2013 as per the last rent receipt No. 006 dated 13.05.2013 signed by my landlord there Shri. Devjibhai Punjabhai Jadeda, copy enclosed with this letter.

24.11.2012 - Before this date, I went to said Jamnagar, Gujarat, I have requested a clerk concerned to take necessary step on behalf of me and to co-operate concerned advocate engaged for the case. Earlier this date, I have telephoned said clerk but it appears to me that the said clerk forgot to take step on this date on behalf of me for the Complaint C-713/06.

12.03.2013 - I was in Jamnagar too on this date. Recently I came to know that it was a date, for my appearance, and to take necessary step against Complaint C-713/06 before the Ld. Court. Neither I was aware of this date nor could I follow up the case in person since I was in a distant state on this date and obviously, on this date too the said clerk forgot to take step on behalf of me for the Complaint C-713/06. Continuity has broken since last date.

16.08.20013 – This date, the case dismissed for default. None of the above said dates, i.e. 24.11.2012 and 12.03.2013 the complainant’s side has attended the Complaint C-713/2006. Therefore, there was a temporary discontinuation from said Complaint C-713/2006 during the above said period and this date.

The complainant has maintained significant attendances on the relevant court dates, even then, it was practically impossible for him to appear in person before the Ld. Court on the dates 24.11.2012, 12.03.2013 and 16.08.20013 but to rely upon the said clerk to take necessary step on behalf the complainant and co-operate advocate engaged for the case.

Considering the above stated facts and circumstances, the Complaint C-713/06 deserved to restore because the complainant was unaware about the date 16.08.20013 when the same dismissed for default ordered. Besides that, due to his financial constraint and maintain his livelihood, the complainant had to go to another state during said period and these are the other grounds to restore same complaint.

In support of his above statements, the complainant has attached copies of the following documents with this letter:

1. Authorization letter Dated 4 November 2012 - That represents complainant's movement in another state during concerned period.

2. Notarized Tenancy Agreements dated 23.11.2012 - Same Comment as the above.

3. Extended Tenancy, Letter dated 10.01.2013 acknowledged by his landlord. - Same Comment as the first one.

4. Six months Rent receipts issued by his landlord between the period 10.01.2013 and 09.07.2013 - Same Comment as the first one.

- Complainant in the case C-713 / 2006.

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7 Replies

T. Kalaiselvan, Advocate (Advocate) 22 September 2013

Mr. Thakur,

It is the responsibility of the complainant to follow up his case in the court through his lawyer on each and every hearing. Blaming the clerk for not informing the dates of hearing etc., is a childish talk which has no exemption in law. If you have work with at other place, you should either make an arrangement with your lawyer or should somehow make yourself available before the court on the date of hearing. You have paid fees to the lawyer and not to the clerk hence you have got rights to ask only your lawyer and not his clerk. Besides, a criminal complaint u/s 138 NI Act need not necessarily order for return of your amount by the accused, it is primarily an offence attracting penal provisions of imprisonment upto two years with or without fine or compensation depending on the discretion of the Presiding Officer of the court, hence it is your fault for not initiating a civil case for recovering the debt amount from the accused through civil court simultaneously. Now since your case has been dismissed by the Magistrate court, you have an option to restore the same through an appeal before the higher court but there is no provision in law to set aside the dismissal order by the lower court which ordered dismissal. Atleast now consult your lawyer and proceed with further course of action in this regards.

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S N Thakur (Entrepreneur) 22 September 2013

@ Kalaiselvan, Advocate Vellore

Dear Sir,

I thank you and very much grateful to you not only for investing your precious time in reading my statement but also for sharing your experienced views in response to my statement.

However Sir, while I agree with almost all of your advises about the responsibility of the complainant and others however, it also reasonable to mention and needs to consider that the means of my LIVELIHOOD though guaranteed fundamentally, but not how I earn my bread and butter. Therefore, the right to earn ones bread and butter, even in another state, cannot be denied STRICTLY because of said responsibility of the complainant, considering the fact that it was practically IMPOSSIBLE for the complainant to follow up the case IN PERSON when he was not in station.

Certainly, I have arranged to represent said case before the court on the dates of hearing as such I have signed the VOCALATNAMA, in earlier occasions too the case was represented by the same lawyer that establishes the fact of his acceptance. In instant case, it was subject to our MUTUAL understanding that the PRIVATE clerk said follows up the case with said lawyer even then the LAWYER MAINTAINS record of next court dates. In earlier occasions I have remitted fees on the dates for both them however, for the period in question I have paid some advance and assured both of them to remit relevant fees due, if any, in our next meeting and on my return from another state. They appeared to have accepted the assurance of mine.

I have known that cases under section 138 of the Act, is not purely a criminal case but quasi criminal and I understood it like a criminal case with civil flavours, besides that the State is not fighting the case for me but I have to fight the case and bear the cost of my own.

Nadeem Qureshi (Advocate/ nadeemqureshi1@gmail.com) 22 September 2013

consult with your lawyer

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T. Kalaiselvan, Advocate (Advocate) 23 September 2013

Mr. Thakur, In reply I would like to elicit certain facts to you that: Your duty to conduct the case does not finish after you have signed a Vakalatnama to a lawyer, it is you who has to follow it up regularly because you only have to take medicine for your head ache or any other ailment, further though there is no dispute about your rights to earn for your bread, you have to ascertain your priorities accordingly instead of finding a lame excuse for your negligence, there is nothing called quasi criminal in prosecuting the case for an offence u/s 138 of NI Act, it was framed only to mete out penal punishment to the accused so that others are beware of the consequences in such cases in the future, the pecuniary impositions depends upon the discretion of the Presiding Officer of that court. Donot get confused of putting everything together, try seek further remedies on the issue through a prudent lawyer. Advocate Kalaiselvan, Vellore, Ph:+919443441062

S N Thakur (Entrepreneur) 23 September 2013

Continued in the following discussion...

S N Thakur (Entrepreneur) 23 September 2013

@ Advocate Kalaiselvan, Vellore, Dear Sir, I thank you for drawing out your response to my last statement, advising me how to conduct the case. There is a saying, “justice delayed is justice denied”. Sir, I must assure you that I have been following up the case regularly and sincerely since last 8 years along with the other N. I. Act Cases. Already I have taken the matter with my advocate and it is possible that my advocate has filed a revision application before the Ld. Session court today. Sir, it is a fact that I am not a legal professional. However, in my common sense, I find no reason to agree with your statement that says, "finding a lame excuse for your negligence." I sense this as if you are trying to say that the instant case does not stand a chance for restoration. Moreover, if my above interpretation is correct then I would like to refer you Hon'ble Supreme Court Judgment Reported in 2002 (8) SCALE331; (2002)7SCC726 in the case of Mohd. Azeem Vs. A. Venkatesh and Anr. A complete Judgment is available here https://www.legalcrystal.com/judgements/descriptttion/668329 Quote from the Judgment, "the learned Magistrate committed a error in acquitting the accused only for absence of the complainant on one day and refusing to restore the complaint when sufficient cause for the absence was shown by the complainant." Anyway, it the above statement is purely for my defense and not an impugned act. I thank you again. Document of today’s interaction with my advocate attached below.

Attached File : 1001114455 reason for default in appearances.pdf downloaded: 329 times

S N Thakur (Entrepreneur) 03 May 2015

I have done all, for restoration of the case, whatever the private clerk and the advocate told to me. However, position of the case will ever remain unchanged since dismissed for default by the magistrate’s court. The said clerk engaged the advocate on behalf of me for restoration of the case before the session court, Vocalatnama signed & accepted. Several times, I have visited the court and paid in full - for the certified copy of the last orders, for drafting the case, typing, and stamps, for filling, for clerk and advocate fees. The clerk assured me to file the application before the session court in time, just before the Puja-holiday starts. The court reopened after the Puja-holiday when the clerk told me that the restoration is not possible due to problems in filling process. The clerk declined to clarify about the nature problem but told me to forget the case. Finally, all of my time, money and effort wasted but I could not get justice even after 8 years and that I will never get!