Sec. 138,ni act. what is the procedure of bail ?
Sanjeev
(Querist) 08 February 2017
This query is : Resolved
Sec. 138, N.I.Act.
(False,Fabricated & Harrassment Case)
Mr.X is the Defendant. lost a case in MM court. Got time of 1 month (Same time & from same court) to get bail & released from the same Court.
Mr. X Filled CRA in ADJ Court. Got Dismissed. ADJ Sent him to Jail. Directly without giving him time to get the bail or to file a CRR in High Court.
All I know in N.I Act cases MM court gives 1 Month time to file CRA in Sessions Court & release the accused.
ADJ Court give 3 months time to file CRR in High Court & release the accused.
High Court gives 3 Months time to file SLP in Supreme Court & release the accused.
My question is :
1) What is the procedure & Time, court give to get the bail in Sec. 138 NI Act cases. ?
2) Isn't ADJ gives 3 months time to get bail from the High Court in Sec. 138 cases & release the accused on the bail same time if accused wants to challange the order passed by the ADJ?
Regards
SG
DEFENSE ADVOCATE.-firmaction@g
(Expert) 08 February 2017
Cheque law is simple that the cheque is from the account of the accussed and dishounored hence conviction.
So your theory is wrong from start that it was false , fabricated since court goes by evidence.
Again so called experts confuse by citing earlier judgements which has no relevance after law is changed or new judgments have come.
In the lower court and even before ADJ you or your advocate must have taken lousy defense hence lost.
Even at this stage find procedural mistakes by digging the records and apply for bail you will get it.
Rajendra K Goyal
(Expert) 08 February 2017
May proceed as advised by the expert DEFENSE ADVOCATE.
Sanjeev
(Querist) 09 February 2017
Respected Experts (DEFENSE ADVOCATE & Rajendra Ji),Thanks for giving ur expert advice. I will definately do it.
But my question is :
Mr. X got bail from the lower court same time he got convicted.
Isnt the ADJ grant him bail at the same time his appeal got dissmissed & gave him time of 3 months to get the bail from High Court as he has been sentenced for 1 year only ?
Regards
SG
DEFENSE ADVOCATE.-firmaction@g
(Expert) 09 February 2017
1) Appeal is right at lower court level and hence bail was given.
2) After next stage appeal is not right. And your appeal memo did not have legal issue for appeal to be admitted and hence bail is rejected.
Please note that the normal defense people take in cheque cases influenced by legal sites like this or By immature advocates are=
1) Cheque was blank. It may have been blank but you can not prove it and at first appearnce the accused admits the signature and thereafter this defense is of no use.
2) Second defense is that it was security cheque this also the accused can not prove . Only on basis of the statement or any case law has no value in trial.Case law has to be supported by evidence.
3) And thirdly is that there is no liaiblity. This also can not be proved by accused in the court.
4) And in many cases stolen cheque story is put. It also damanges all other defense. Since you can not prove why signed cheque was kept and how this particular cheque is stolen.
5) Some so called smart advocates make the mistake that notice was not recieved. But when you appear in the court on first day the accused gives same address which is on the notice. So this defense is rejected.
HENCE MAJORITY OF CONVICATIONS IN MOST OF THE COURTS ALL OVER THE COUNTRY.
Still it is most easy to win any cheque case at trial stage it self. Instead of putting defense by the accused all the pleadings in the complaint and documents must be minutely gone through. You will find many mistakes.
IT WILL BE THERE IN YOUR CASE ALSO.
Sanjeev
(Querist) 10 February 2017
Respected Defense Advocate
I must appreciate your knowledge & experience in Sec 138 NI Act cases.
What ever you have said without seeing the file is 100% true.
I request you to kindly elaborate the below mentioned lines you have written.
"After next stage appeal is not right. And your appeal memo did not have legal issue for appeal to be admitted and hence bail is rejected".
Please
Regards
SG
Dr J C Vashista
(Expert) 10 February 2017
1. Complaint case u/s 138 NI Act is quasi criminal and not civil suit where respondent is accused but not defendant as stated by you.
2. Discuss the case with a local prudent lawyer with entire file of the complaint, conviction and sentence, appeal (before Sessions Court and not ADJ).
3. Order passed by Sessions Court qua arrest and sending convict to jail, on dismissal of appeal, is absolutely perfect. No time/ interim bail is granted by Sessions Court to file criminal revision before High Court, as in the case of Trial Court.
Sanjeev
(Querist) 10 February 2017
Respected Dr. J C Vashista Sir,
Thanks for your Inputs.
I have taken the steps to go to High Court.
Please advise me :
What if High Court does not entertain Mr. X's CRR ?
If not, then will he needs to spent more time in Jail ?
Regards
Sanjeev
Sanjeev
(Querist) 10 February 2017
Meaning : Then in that case i have to approach The Hon'ble Apex Court for bail ?
How much time it takes to get the Bail from the above ?
Regards
SG
DEFENSE ADVOCATE.-firmaction@g
(Expert) 10 February 2017
First of all I appreciate that you have understood the problem which one in thousand do.
There will be waste of time in going to SC since by the time your convication period will be over.
छोटी आग को छोटी हवा बुज़ा देती हे परंतु बड़ी आग को बड़ी हवा और बड़ा तूफान बना देती हे .
You must find a triable issue from lower court records to enable you to file a petition in HC for bail. If you can show the lower court file I can show you some of them.
I will give you simple example. I won a cheque case at MUMBAI MM court against GOVT FII of multi million value on simple objection at thresh hold for POA and vakalatname signed by the POA holder. There are minor laws which no body looks but same has to be followed. The POA law is two section law which no body has read and hence got clean bouled when I showed the provisions and not followed.
So please understand that in cheque case for sure win is to find technical issues and never touch the main problem.
So study the file of lower court find lapses and mention them in your writ before HIGH COURT for bail and you will get it.
Dr J C Vashista
(Expert) 11 February 2017
Dear Mr. Sanjeev,
Did you file an appeal or revision before the Sessions Court? If appeal, you may file revision before High Court, otherwise, it would be writ.
Grant/dismissal of bail by High Court depends upon number of factors such as way of presentation of the petition, grounds for the appeal/writ etc. with legal preposition on the subject.
Warm regards.
DEFENSE ADVOCATE.-firmaction@g
(Expert) 11 February 2017
Appeal or revision whatever you name now there is no second appeal before Highcourt.
However on technical issues you can invoke section 482 before HC which will be admitted in routine
But you should have triable issue and what is triable issue.
The lower court has convicted after appraising the evidence. Now your mere statements have no meaning at higher courts. That is why your appeal by ADJ is rejected.
You have to show that how the decision of lower court is legally not correct.You have to show legal provisions not statements as most of the people do and you may have done in your appeal before sessions court.
Now you have order of ADJ so in 482 application before HC if you can show that what legal issues ADJ should have gone through than your 482 petition will be instantly admitted at HC and bail will be granted.
Sanjeev
(Querist) 15 February 2017
Respected Defense Advocate & Dr. J.C.Vashista Sir,
Thanks for your inputs
Last Saturday the Complainant has approched the family of Mr.X & offered a compromise.
Saying that if the accused/family of accused can pay him the 25% of the amount he can get Mr.X out of the Jail.
what I have known is if you do compromise in the High court the the accused has to deposit 15% of the cheques amount also.
Though he is known to me very well since longtime. I know they are very poor & cannot afford to deposit 15% (also 25% of the compromised amount) of the cheque amount. As they have sold all the things including their Jewellery & could not able to raise even 25% of the compromised amount.
Is their any possibility or way in which court give them a relaxation for depositing the compounding fee of 15% ?
Regards
SG
P.S. Sorry for the late reply as i was busy with their family as he has nobody except an old Mother & a wife.
