Procedure For filing Complaint Under Section 138 Negotiable
Instrument Act
b) The person who has issued cheque is directed to make
the payment of amount of dishonored cheque within 15 days. In case 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 complainant 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 complainant/ advocate
for complainant 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 advisable 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 ownership 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 complainant will file the affidavit for his
evidence with all original documents in support of his complaint. This is
called exam in chief of complainant. Then accused/his advocate will cross
examine the complainant.
l) Complainant can submit additional witnesses in support of
complaint.
m) Then once witnesses of Complainant 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 complainant
and argument of advocate of accused
p) Court will pass the Judgment. In case accused is acquitted 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 judgment in the court immediately
then he will be released. He should appeal to sessions court within one month
from the date of judgment 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 judgment 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 amendment 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 complainants
by forcing the borrowers to issue blank signed cheques in advance at the time
of sanction of loan.
u) If a complainant withdraws the case under sec.138 of
the NI Act, court fee will be refunded as:
·
In India ,
the Negotiable Instruments Act regulates commercial transactions which take
place through cheques, promissory notes and bills of exchange.
·
The Maharashtra government
announced in a gazette notification in May 2011 that a claim for refund of
court fees can be made after the withdrawal of the complaints for the cases,
which are filed under section 138 of the Negotiable Instruments Act, 1881.
·
According to the Maharashtra
government resolution (GR), the state government, in exercise of its powers
conferred by section 43(2) of the Bombay Court Fees Act, 1959 will provide part
of the court fees paid by the complainant under article 18 of schedule I,
appended to the Act.
·
Such refund will be paid to the complainant under two broad
circumstances and conditions.
o First, under section 138 of
the Negotiable Instruments Act, 1881, a refund of 50% of the total court fees
will be made when the complainant withdraws a complaint, or when the offence
was compounded, before framing of particulars/charges, provided the claim is
made within one year from the date of withdrawal of the complaint.
o Similarly, 25% of the court
fee will be refunded provided the complaint is withdrawn, or the offence is
compounded, after farming of particulars/charges, or any subsequent stages of
the complaint. Here again, a claim has to be made within a year.
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