Summons served on one of the partners in 138 nia case

Dear Mr. Ashok,

This is a  partnership Firm then proceedings against one partner would suffice. you can drop the another partner if he is not traceable.

Rajiv Bhasin 

BHASIN LEGAL CONSULTANTS

SOLICITORS AND ADVOCATES

www.bhasinlegalconsultants.com

"you can drop the another partner if he is not traceable."

What is the process to remove name from main complaint.

Mr. Sharad,

You have to state simply before the court that you want to drop the untraced partner. 

Thank You Rajiv Bhasinji

But if the partner is dropped, will he be sentenced in case of an adverse verdict against the firm?Section 138 NIA being a criminal offence, I dont think that teh decision would be binding on him

And if he is sentenced will it not amount to violation of his natural right to be  heard?

And the partner who has been served does not posses any resources to repay so even if that partner is tried the complainant does not get any effective remedy as the partner might just serve an additional imprisonment which does not give any effective remedy to complainant

Dear Mr. Ashok,

Partner has signed and issued the cheque knowing fully well that the cheque would be dishonoured then he cannot escape the liability in any case. The other partner is absconder.  On behalf of the Firm even partner shall be held responsible. Complainant can recover the money from the partner as he is responsible also for all the affairs of the firm. There is no human rights violation in this case. no infringement of Art. 14,15,16,19 and 21 of constitution of india. go ahead this is water tight case. 

Rajiv Bhasin 

BHASIN LEGAL CONSULTANTS

SOLICITORS AND ADVOCATES

www.bhasinlegalconsultants.com

A case u/s 138 of NI is basically a criminal case and the complainant cannot claim the cheque amount as a matter of right, for recovery of money he has option before the civil court only.

Yes T. KalaiselvanJi, So what will be the outcome if one of the partner turns up and the other does not do so?

Will the case move ahead in that situation or it will remain stagnated?

And if the case moves ahead , will the decision of the Crimininal case be binding on the other partner also or not?

Though this is a criminal case, no doubt, yet the Court Orders the accused to pay the amount to the complainant as fine. So will the absconding partner be also ordered that way?

Pl give me the outcome/Fallout of the partner absconding in such a case?

Dear Mr. Ashok,

No doubt this is criminal case at the first instance court would ask this cheque is issued and signed by them against the legally due debt, if so then court will ask them to pay the cheque amount. As practise in Delhi we settle the matter on first instance at cheque amount or in instalments through mediation.  In absence of one partner other partner has to pay as he is jointly and severally liable to pay the cheque amount, this is settled law.  

Rajiv Bhasin 

BHASIN LEGAL CONSULTANTS

SOLICITORS AND ADVOCATES

www.bhasinlegalconsultants.com

Thank U Rajiv Bhasinji,

See the issue in this matter is that the absconding partner is a partner with Financial capacity who  if brought in the ambit of theproceedings will pay for sure wheras the partner who is available ids a resourceless person who would go to Jail but WILL NOT BE ABLE to pay! So naturally and using legal wisdom, one would like to have this absconding partner present!

How to ensure that?

Can the Court keep the proceedings in abeyance till the other partner is traced or the Court will dispose of the matter with the available partner and put an end to the case with the victim getting nothing. It is of no use if the victim gets no amount imposed as fine even if the  available partner serves 2 years in Jail & even an additional terms in lieu of fine. The victim is more interested in getting his money rather than making the partner serve a jail term. So pl oblige by suggesting a strategy accordingly

S

Dear Mr. Ashok,

You have to wait till the court declares other partner PO or initiate proceedings under section 82 and 83 Cr.P.C and attach all  the assets of absconding partner then he will come in the picture not before that thereafter your case will proceed not before that because you want to recover money from him.