Compansation in ni 138 , and civil suit for recovery the debited amount
kamal krishan
(Querist) 17 April 2015
This query is : Resolved
Sir ,
I had filed acomplaint under Sec 138 on 1-1-2013 of NIA and got the compesation by order of the court from the accused for the offence committed by the accused on 1-02- 2015 .
Sir ,
can I file a separate civil suit for rcovery of the same cheque amount ?
As I understand the compensation / fine given , dischrge the accused from his criminal liabilities only but do not exonerate the civil liabilty .
PL guide .
Devajyoti Barman
(Expert) 17 April 2015
You can file separate civil suit to recover the money.
malipeddi jaggarao
(Expert) 17 April 2015
If the compensation awarded is sufficient enough to cover the debt and agreed interest, if you file a civil suit, the drawee will stand that the debt is already repaid.
Rajendra K Goyal
(Expert) 17 April 2015
Can file civil suit for recovery of the money.
Advocate Bhartesh goyal
(Expert) 17 April 2015
Yes you can file civil. suit for recovery of cheque amount along with interest
Advocate Bhartesh goyal
(Expert) 17 April 2015
Yes you can file civil. suit for recovery of cheque amount along with interest and expenses .
SAINATH DEVALLA
(Expert) 17 April 2015
NI Act case disposed off in 2 yrs, really good.If U can provide brief contents of the first statutory notice given to the accused, Whether U will be successful in the civil suit or not can be determined.
P. Venu
(Expert) 17 April 2015
Interesting and thought provoking! It appears that Section 138 NI Act has created a legal morass than a law.
Dr J C Vashista
(Expert) 18 April 2015
Although you can file a suit u/o XXXVII CPC or simple recovery suit for recovery of the cheque amount yet you will get nothing if the case under section 138 has been decided in your favour wherein you have already been granted compensation.
kamal krishan
(Querist) 20 April 2015
Hon'ble experts ,
Thank u for ur kind replies .
Under NI 138 , and disposal of complaint ,
Sec contemplate Only fine and imprission ment to exonerate the accuse .with no wording on dischaging the civil liabilities , that is the recovery of money .
Accuse is punished for the offence only .
so pl recoment on , i will be highly oblidged .
kamal krishan
(Querist) 20 April 2015
Further about the limitation on the same subject ,
Limitation( 3 year) for filling the civil suit begins, after the court approved/ the truthfull of debit i.e. after the date decision .
or
It is constued from the date of payment to accused as respondent .
Supose NI 138 , got decided after 6 year .
In this sitvation civil suit can be filled afer 3 year , of the decision .
Anirudh
(Expert) 20 April 2015
Every lawyer worth his salt knows that, in case the Sec. 138 N.I. Act does not bring in relief in the form of realisation of amount of cheque (though the Sec. 138 is not meant for recovery, but many a times the accused make payment once the complaint lodged), one has to keep the limitation for recovery of money by filing Order 37 Summary suit within time.
Many a times the complainant does not file the O 37 Suit, as he has to make payment of court fee upfront, and thinks by filing Sec.138 complaint the money will be realised.
Otherwise, the summary suit can be filed simultaneously while lodging Sec.138 complaint. If one waits to the outcome of Sec.138 complaint, then the limitation would have certainly gone for filing civil suit for recovery of money.
DEFENSE ADVOCATE.-firmaction@g
(Expert) 20 April 2015
Complainants of cheque bounce are always over confident and only understand after a long court battle that things are not so easy.
1) Even if compensation is granted it is civil liability and if accused does not pay up than you have to further initiate cases.
2)Appeal against conviction is legal right and some HIGH COURTS have given landmark rulings that accused need not pay any amount for admission of appeal.
3) Civil suit for money recovery need legal expert since there you have to prove everything which in 138 cases many things are presumed.
DEFENSE ADVOCATE.-firmaction@g
(Expert) 20 April 2015
For the knowledge and benefit of those accused who have missed to present proper defense and have been convicted by lower court should take the benefit of RIGHT TO APPEAL AND following directions of RAJ HIGH COURT which may not be mandatory to follow in other states still it has defined the law so morally it should be acceptable.
"10. The suspension of sentence is to release the accused on bail. In fact, the very
heading of Section 389 Cr.P.C., states that "suspension of sentence pending the
appeal; release of appellant on bail." Furthermore, the said provision has empowers
the appellate Court to see that the execution of sentence or order appealed against, be
suspended and also if he is in confinement that he be released on bail.
Similarly, the said provision, in different eventuality, mentions about release of the accused on bail. . When a matter is considered fit for hearing and the substantive sentence of the petitioner is ordered to be suspended then imposition of condition of payment of amount, out of fine or .
This would mean that if a person who is not in a position to make payment of the said amount, his sentence would not be suspended and he would be deprived of hearing of appeal and will have to undergo sentence, although ultimately he may be acquitted. Poverty of the accused should not come in the way of hearing the appeal or suspension of sentence in case the appeal is found to be worth hearing. ........
........
........
19. .......In other words, the learned courts below are not to impose condition of any nature while suspending the sentence/ granting bail to an accused which amounts to be onerous. Such imposition is virtually denial of bail to the accused even though he is entitled for the same, otherwise.
kamal krishan
(Querist) 23 April 2015
Respected , advocate diffence ,
I wish to have reply to my querries , will it please u . Kindly revert concent .
SAINATH DEVALLA
(Expert) 23 April 2015
This thread has started deviating from the original post
T. Kalaiselvan, Advocate
(Expert) 24 April 2015
@Author: Your question about limitation was very well answered by expert Mr. Anirudh. He has clearly stated the following as his reply:
If one waits to the outcome of Sec.138 complaint, then the limitation would have certainly gone for filing civil suit for recovery of money.
I think this satisfies your query. Further your first query was also answered by other experts that you can file civil suit for recovery provided it is within the stipulated time limitation.
