Upgrad LLM

Cheque bounce

This query is : Resolved 
 

(Querist)
23 November 2012

A person has filed a case u/s 138 of negotiable act 1882 against director/company for cheque bounce after limitation pd i.e after 30 days of issue of legal notice for cheque bounce by more than 20 days without filing for condonation. Now a summon is issued against the directors of the company? In this case what should be appropriate remedy for the company and its directors? whether directors have to take bail? whether a petition can be filed by company in court challenging the complaint as time barred? does in this case also directors have to take bail?? kindly reply


H. S. ThukralOnline (Expert)
23 November 2012

If the cognizance of complaint has been taken without any application for condonation of delay, then you can move the HC for quashing of summoning order. If the requirement of section 141 are complete and there are necessary averments in the complaint regarding liability of directors impleaded as parties,( specific plrsdings of directors involvement in daytoday affair have to be made) then directors have to appear before the court and follow the procedure including seeking bail.

manish mundra (Querist)
23 November 2012

how to ensure that condonation pettion is filed with complaint and whether court has granted it?? is their Any other remedy available with Metropolitan court/lower court other than going to high court??

ajay sethiOnline (Expert)
23 November 2012

take search of court proceedings . apply for certified copy of roznama and complaint . if you so desire you cna contest case before MM court as you dont want to go to high court

manish mundra (Querist)
23 November 2012

What should be the best option , whether to approach high court or to lower court? Does a miscellaneous petition needs to be presented to the lower court or it can be argued at the course of hearing? In rhis case does director need to take bail??

H. S. ThukralOnline (Expert)
24 November 2012

If you want to contest the case then proceed with it taking defence that ingredients of section 138/141 are missing in the complaint. If you want to get the complaint quashed then only HC can do it. magistrate now can not review the summoning order. Yes the accused named in the complaint has to seek bail on the first day of appearance.

V R SHROFF (Expert)
24 November 2012

Very simple.
File VP, Let your Adv take on board, Apply for certified true copy of Complaint, Summons, Legal Notice, Roznama. MM will allow you the Inspection of brief, so find out, whether Delay condonation was applied.
It must not have applied, as otherwise accused get a Notice to argue Delay con donation first.
Only after passing order on Delay con donation , after hearing both parties, that delay is condoned, then Complain will be registered, and process issued, i.e. Summon served. Once Magistrate issue summon, he cannot withdraw or cancel his own order or dismiss this complaint.

You have 90 days time to file REVISION in Sessions court against Order to issue process, and that revision will be allowed, and summon, as well as 138 Complaint will be quashed.
No need for Surety/ or bail. till then, as all Case paper will be transferred to higher court, i.e, Sessions court in your matter.
No need for appeal in High Court at this stage.


DEEPAK ASSOCIATES (Expert)
25 November 2012

I agree with Mr V.R.Shroff advice

Raj Kumar MakkadOnline (Expert)
25 November 2012

I have also no other opinion as of Shroff as expressed above.

Neema (Expert)
28 November 2012

Perusing the query, there is a chance that complaint was filed within time, because, the cause of action in respect of cheque bounce u/s138 of NI Act, starts only after statutory period of 15 days for the drawer of cheque for repayment.That too after receipt of demand notice by the drawer. so the 30 days +20 days period mentioned in query need not be actually a delay but within time. You have to calculate time of 45 days from the date of signing of a/d card, within which a complaint can be filed without delay condonation u/s 138 of NI Act



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