Case filed under 138 cheque bounce

ashok k rao (Querist) 19 March 2024 This query is : Resolved

(further to the expert advise from Mr. T. Kalaiselvan, Advocate (Expert) 18 March 2024)

Hello, I filed a cheque bounce case of Rs.2 lakhs in Feb 2021 pertaining to refund of my property booking amount which I had paid online from Bangalore to Hubli and the owner withdrew full amount from bank and closed the account and sold the property to another buyer. For almost 12-15 months even after getting notices from Court he did not turn up for taking bail. He came later and without serving notice to my advocate managed to get bail and ran away and again not seen for 2 years. Court issued 9 NBWs and Arrest warrants. On 26th Feb 24, case advanced from 29-4-2024 he came without any notice to my advocate took date and disappeared. I have been given Rs.300 payment orders as complainant by Hon Court. I wonder if such things are permitted by Hon Courts that one accused is escaping so many notices/NBWs/Arrest Warrants. The case is posted for PW-1 CROSS and my advocate do not yet received any intimation from Court/opposite party. I prayed to the Hon Judge to order Ex parte previous date, but did not get orders. My advocate is also in a fix to explain to me. Kindly advise what next for me.
PS: I spoke to my advocate and he says that we have not received any intimation either in writing or orally about advancing the case from 29-4-2024 to 26-2-2024. Even earlier also to obtain bail, he did the same thing. We now wonder after 9 NBWs and Arrest warrants, how can Hon Court recall so many warrants issued against him without enquiring if the notice has been served or not to me and to my advocate. and straightaway giving date for cross examination of PW-1 and that too when the accused is telling that this cross examination will bring success to accussed. I wonder Sir/s.
Kindly advise whether I need to attend the court on 16.4.2024 (not informed to me by accused or the court) and whether I can file objection to this order.

Read more at: https://www.lawyersclubindia.com/experts/case-filed-under-138-cheque-bounce-758411.asp

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This discussion concerns a cheque bounce case filed in February 2021 under Section 138 of the Negotiable Instruments Act. The complainant is seeking advice on how to proceed after the accused repeatedly evaded court appearances, leading to multiple arrest warrants, only to have these warrants recalled without proper notice to the complainant's advocate. The complainant is also concerned about their inability to attend court for the upcoming cross-examination due to being abroad and the potential consequences for the case.

T. Kalaiselvan, Advocate (Expert) 19 March 2024
The accused had filed a petition for hearing advance to get the NBW recalled and as per the orders of court he paid the cost of Rs. 300 to you after which the court allowed his petition to recall the warrant against him.
After that the court has posted the matter to the original date of hearing for cross examination of PW1.
There is no illegality found in this.
Your advocate should have been vigilant about it to strongly object and should have insisted court to direct him to pay at least 10% of the cheque amount if the NBW is allowed to be recalled.

Isaac Gabriel (Expert) 19 March 2024
You can attend court and file petition with regard to the procedural lapses and process through your counsel.

ashok k rao (Querist) 19 March 2024
Sir/s (Mr Isaac and Mr Kalaiselvan - (i) No notice served on me or my advocate intimating on advancing the date from 29-4-24 to 16-4-24 (ii) The date is not retained as 29-4-24 but given 16-4-2024 which is the new date without any intimation to us (iii) court did not enquire for his not attending the court even after getting 9 NBWs and Arrest Warrants which in fact he should have been brought to Court by police duly arrested (iv) Hon Judge has given date for cross exmination of PW-1 which is debatable again. (v) There is illegality prima facie Sirs. it was just casually we were checking on E-court that we found this to our shock. When no intimation given how my advocate will know advancement and new date (vi) Will not Court check if notice served on me or advocate Sir?

T. Kalaiselvan, Advocate (Expert) 19 March 2024
Whenever the accused is recalling the warrant pending on him, he will first surrender before court, in that case there is no necessity for the police to arrest the accused inside the court.
If you have not taken any steps properly to execute the non bailable warrant through concerned police then the accused will be be evasive. Besides, it is the duty of the court to inform the accused to obtain NOC by serving a copy of the recall petition to the other side, if it is not done then there should be some manipulation on it. You may ask your advocate to file a copy application to obtain the certified copy of the petition filed by him for recall of warrant,
If it is found that your advocate's signature has been forged you may take it up with the vigilance department of the court for this fraudulent act.
It is pertinent to note that whenever there is a petition for hearing advance has been allowed by court then the next date of hearing can even be changed because the original date has been advanced, hence it nor more is the same date, therefore the change of date of hearing is not an illegal proposition.
You can discuss with your advocate on all such further issues and proceed as suggested

ashok k rao (Querist) 19 March 2024
Thanks respected Mr. Kalaiselvan and Mr.Isaac Gabriel for this advise. Obliged Sir/s. (Issue is I am in Dubai with my children-just came to Dubai a month ago. It is known fact that he was not coming to court for bail after many notices/hearings and now after 9 NBWs and 2-3 Arrest Warrants coming without any notice to us and recalling the NBWs. I guess manipulation as written by you also. Thanks and will do the needful. May be i am unable to go to Bangalore at least next 2-3 months. Please expert on this point of my not going to court next 2-3 months.

T. Kalaiselvan, Advocate (Expert) 20 March 2024
The case is posted for cross of pw1, you are the pw1 and the complainant, then if you are not available for cross examination the court may even dismiss the case.
You cannot file a petition to restore except preferring an appeal before high court.
So, you may decide if you want to take any risk.

ashok k rao (Querist) 20 March 2024

T. Kalaiselvan, Advocate (Expert) 20 March 2024 The case is posted for cross of pw1, you are the pw1 and the complainant, then if you are not available for cross examination the court may even dismiss the case. You cannot file a petition to restore except preferring an appeal before high court. So, you may decide if you want to take any risk.

Read more at: https://www.lawyersclubindia.com/experts/case-filed-under-138-cheque-bounce--758421.asp

noted sir

T. Kalaiselvan, Advocate (Expert) 22 March 2024
Thanks for your understanding.

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