Nia - sec 138
Dr. MPS RAMANI Ph.D.[Tech.]
(Querist) 26 January 2016
This query is : Resolved
My friend is an accused in a Section 138, NI Act allegation. The first hearing was in August, 2015 at which he was given bail. After that there has been no hearing at all. So far 5 times dates have been fixed. But when he goes to the court there will be no hearing as no magistrate has been appointed to hear the case. It is not known how long this will go on. My friend is sure that the case is false and he can easily come out of it. But how to expedite things. Is there a higher authority in the court itself to whom my friend can complain? Or can he complain to the High Court?
Anirudh
(Expert) 27 January 2016
There is no other go. You have to wait. In any case, it is not clear on what basis your friend says that he will come out of the case. What was the reply given by him to the statutory notice received by him?
Dr. MPS RAMANI Ph.D.[Tech.]
(Querist) 27 January 2016
The cheque was given as a hand loan without interest, which was withdrawn before encashment. No reply was given to the notice. If no magistrate was appointed for years together has he got to wait indefinitely? If he knows in advance that magistrate had not been appointed, has he still got to go to the court? If a magistrate has been appointed and he does not appear for one hearing, what will happen?
Anirudh
(Expert) 27 January 2016
He can apppoint a lawyer, who will appear on the date when the case comes up and ask for a future date for appearance of the accused.
Dr. MPS RAMANI Ph.D.[Tech.]
(Querist) 27 January 2016
Even if he may not come out of the case he does not want to wait indefinitely. I had read in the newspapers one or two years back that the Supreme Court had expressed displeasure at the dragging of cases by lower courts with too many adjournments and that the High Courts should take action. Can my friend not approach the High Court? If so will it be in the form of a complaint against the lower court or as an appeal?
Dr. MPS RAMANI Ph.D.[Tech.]
(Querist) 27 January 2016
If there was no magistrate at all whom will he ask for a future date. If neither he nor a lawyer appears when there was a magistrate, what will happen? Will the accused be given another chance? I know that there are cases where the accused had absconded for years together.
Dalip Singh
(Expert) 27 January 2016
in case the complaint is pending in delhi district courts, please tell, we can let you know the exact status.
Dr J C Vashista
(Expert) 28 January 2016
In all criminal cases link magistrate has to take the court and proceed, either your friend is reaching late or his lawyer is not available at that point of time. It is improbable state of affair in any criminal court that the accused may not be given proper date after marking his presence in the court.
There is some thing basically wrong either in the information provided to you or conduct of court proceeding.
Whatsoever, your friend has no alternative but to face the trial in the same (Magistrate) Court and there is no such provision to move to High/Supreme Court lis pendense.
Dr. MPS RAMANI Ph.D.[Tech.]
(Querist) 28 January 2016
1.If on a date fixed the accused does not go to court the magistrate was still not there as no magistrate was appointed, will the accused be penalised in any manner?
2. Suppose date after date the accused does not go to court as the magistrate had not been appointed and then at one date the magistrate was appointed but the accused or his lawyer doesn't appear, will they be given another chance?
3. The accused is ready with his reply. Can he file it in the court even if there was no magistrate and no hearing?
I request advice on each of the 3 points separately
Dr J C Vashista
(Expert) 28 January 2016
1. Non-bailable warrants for the accused and notice to surity shall be issued by the Court.
2. Appearance of lawyer is not mandatory whereas accused has no alternative but to appear.
3. No such provision is there for the accused to file a reply qua any criminal complaint case. Reply is required to be filed in civil cases.
For further query consult your lawyer and close this thread since the experts have adequatly advised.
SAINATH DEVALLA
(Expert) 29 January 2016
Dr.Ramani, as the case is still in the initial stage,the accused cannot predict that he is bound to be acquitted. A case under NI Act is very delicate one, the complainant or the accused cannot be assured of winning. Everything depends on the conduct of the case.� cheque given to another person,whatever may be the reason is nothing but inviting section 138,once the cheque gets dishonoured. Dr.Vasistha has given the correct reply.
Dr. MPS RAMANI Ph.D.[Tech.]
(Querist) 31 January 2016
My questions above:
1. Generally I believe the magistrate orders the issue of the warrant. If there is no magistrate who will issue such warrant?
3. By reply I meant defence of the accused. Apart from oral I believe there can be written defence also.
