Procedure for Complaint Filed U/Sec 138 N.I.Act

Procedure for Complaint Filed U/Sec 138 N.I.Act

by  SANJAY KUMAR SINHA

For the  Knowledge  of  common persons who are involved in false cases of Section 138 NiI. Act must know the following Procedure of Law :-

 

A).UNDER PROVISIONS OF NEGOTIABLE INSTRUMENTS ACT.SEC.138  A LEGAL NOTICE ON BEHALF OF COMPLAINENT IS ISSUED TO THE DEFAULTER WHOSE CHEQUE IS DISHONOURED.IT SHOULD BE ISSUED WITHIN 15 DAYS OF DISHONOUR OF CHEQUE BY REGISTERED POST A.D.ALL FACTS INCLUDING THE NATURE OF TRANSACTION, AMOUNT OF LOAN AND OR ANY OTHER LEGALY ENFORCEABLE DEBT AGAINSTWHICH THE SAID CHEQUE WAS ISSUED AND THE DATE OF DEPOSIT IN BANK AND DATE OFDISHONOUR OF CHEQUE SHOULD BE MENTIONED THE NOTICE.

 

B) THE PERSON WHO HAS ISSUED CHEQUE IS DIRECTED TO MAKE THE PAYMENT OF AMOUNT OF DISHONOURED CHEQUE WITHIN 15 DAYS. IN C ASE THE SAID PAYMENT IS MADE WITHIN 15 DAYS OF SERVICE OF NOTICE THEN THE MATTER ENDS.

 

C.BUT IN CASE THE SAID PAYMENT IS NOT MADE WITHIN 15 DAYS THEN THE COMPLAINENT HAS TO FILE A CRIMINAL CASE IN THE COURT WITHIN 30 DAYS FROM THE EXPIRY OF  NOTICE PERIOD OF 15 DAYS .

 

D) THE COURT WILL HEAR ARGUMENTS OF COMPLAINENT/ ADVOCATE FOR COMPLAINENT AND ISSUE PROCESS UNDER SECTION 138 OF N.I.ACT.

 

E.)THE SUMMONS ARE SENT AND SERVED THROUGH POLICE STATION WHERE ACCUSED IS RESIDING.

 

F)KINDLY NOTE THAT IN N.I.ACT.SEC.138 CASES , POLICE IS LIMITED TO ONLY SERVICE OF SUMMONS AND IN CASE ACCUSED REMAINS ABSENT ON COURT DATE AFTER SERVICE OF SUMMONS THEN ONLY WARRANT IS SENT TO POLICE STATION TO PRODUCE ACCUSED IN COURT.

 

G)BUT IT IS OBSERVED IN SEVERAL CASES THAT ACCUSED PERSONS ARE HARASSED BY CONCERNED PERSONS WHO ARE DIRECTED TO SERVE NOTICE/WARRANT.

 

H)HENCE IT IS ADVISIBLE THAT ACCUSED SHOULD NOT BE AFRAID OF THIS COURT CASE AND REGULARLY ATTEND COURT DATES SO THAT WARRANT WILL NOT BE ISSUED AND FURTHER UNNECESSARY HARASSMENT WILL BE PREVENTED.

 

I) KINDLY NOTE THAT OFFENCE UNDER SECTION 138 OF N.I.ACT IS A BAILABLE OFFENCE AS THE PUNISHMENT PROVIDED FOR  SAID OFFENCE IS TWO YEARS.

 

J) ACCUSED HAS TO SUBMIT SURETY WITH ALL SURETY DOCUMENTS INCLUDING OWENERSHIP DOCUMENTS OF HOUSE OR LAND OWNED BY SURETY, HIS ADDRESS PROOF INCLUDING RATION CARD, ELECTION IDENTITY CARD, PHOTO AND ADDRESS PROOF OF SURETY AND ACCUSED.ON RECEIVING SUMMONS FROM THE COURT THE ACCUSED AND SURETY SHOULD REMAIN PRESENT IN COURT WITH ALL ABOVEMENTIONED DOCUMENTS AND COURT WILL ACCEPT THE SURETY AND ON SIGNING BONDS BY ACCUSED AND SURETY, THE BAIL WILL BE GRANTED AND ACCUSED WILL BE RELEASED BY COURT.

 

K) THEN THE COMPLAINENT WILL FILE THE AFFIDAVIT FOR HIS EVIDENCE WITH ALL ORIGINAL DOCUMENTS IN SUPPORT OF HIS COMPLAINT.THIS IS CALLED EXAM IN CHIEF OF COMPLAINENT.THEN ACCUSED/HIS ADVOCATE WILL CROSS EXAMINE THE COMPLAINENT.

 

L) COMPLAINENT CAN SUBMIT ADDITIONAL WITNESSES IN SUPPORT OF COMPLAINT.

 

M) THEN ONCE WITNESSES OF COMPLAINENT ARE OVER THEN STATEMENT OF ACCUSED IS RECORDED UNDER SEC.313 OF CRPC .ACCUSED WILL BE ASKED TO GIVE REPLY TO THE QUESTIONS AND ALLEGATIONS AGAINST HIM.

 

N)THEN WITNESSES OF ACCUSED TO PROVE HIS INNOCENCE WILL BE PRODUCED AND THE EVIDENCE WILL BE RECORDED BY THE COURT.

 

O)LAST STAGE IS OF ARGUMENTS OF ADVOCATE OF COMPLAINENT AND ARGUMENT OF ADVOCATE OF ACCUSED

 

P) COURT WILL PASS THE JUDGEMENT.

IN CASE ACCUSED IS ACQUITED THEN MATTER ENDS.

BUT IN CASE ACCUSED IS CONVICTED   THEN IMMEDIATELY ACCUSED SHOULD SUBMIT BAIL APPLICATION AND GIVE  SURETY AND PRAY FOR TIME TO APPEAL TO SESSIONS COURT. COURT WILL DIRECT HIM TO DEPOSIT FINE AS PER JUDGEMENT  IN THE COURT IMMEDIATELYTHEN HE WILL BE RELEASED.

HE SHOULD APPEAL TO SESSIONS COURT WITHIN ONE MONTH FROM THE DATE OF JUDGEMENT OF LOWER COURT.

 

Q) CRIMINAL APPEAL WITH APPLICATION FOR SUSPENSION OF SENTENCE AND FOR BAIL WILL BE GIVEN HEARING BY THE DIST AND SESSIONS COURT AND ON FURNISHING SURETY AS PER DIRECTIONS OF COURT INCLUDING DEPOSIT OF SOME AMOUNT TOWARDS COMPENSATION ORDERED AS PER JUDGEMENT THE ACCUSED WILL BE RELEASED ON BAIL.

 

R).KINDLY NOTE THAT THE DISPUTE MAY GO ON FROM DISTRICT AND SESSIONS COURT TO HIGH COURT AND THEN TO SUPREME COURT.

 

S).KINDLY NOTE THAT THERE IS AMMENDMENT IN THE NEGOTIABLE INSTRUMENTS ACT. THE OFFENCE IS MADE COMPOUNDABLE .HENCE IN CASE THE MATTER IS SETTLED BETWEEN THE PARTIES , THEN ON AN APPLICATION IN THE COURT , THE COURT MAY ALLOW TO COMPOUND THE CASE AND CLOSE THE CASE.

 

T) KINDLY NOTE THAT THESE ARE GENERAL GUIDELINES FOR KNOWLEDGE AND REFERENCE OF ALL CONCERNED WHO ARE HARASSED BY THE COMPLAINENTS BY FORCING THE BORROWERS TO ISSUE BLANK SIGNED CHEQUES IN ADVANCE AT THE TIME OF SANCTION OF LOAN.

 

U) SUCH BLANK CHEQUES ARE MISUSED BY THE COMPLAINENTS BY WRITING FALSE AND FICTITIOUS AMOUNTS AND GETING THOSE CHEQUES DISHONOURED.

 

V) I HAVE WON SEVERAL CASES ON BEHALF OF ACCUSED AND HAVE GOT ACQUITTED THE ACCUSED PERSONS FROM CHARGES OF NEGOTIABLE INSTRUMENTS ACT.SEC.138.I HAVE SEEN THE HARASSMENT OF ENTIRE FAMILY OF THE ACCUSED PERSONS WHO ARE CONTINEOUSLY UNDER TENSION DUE TO FALSE CASES FILED BY COMPLAINENTS.