Ni act
C. P. CHUGH
(Querist) 12 April 2012
This query is : Resolved
Where an accused convicted under section 138 of the NI Act and sentenced to imprisonment for two years, files an appeal before the Sessions and during the course of appeal request for compounding of offence which is accepted by the Ld Court and the Complainant. As per agreement between the complainant and accused, he submits before the court certain PDC to discharge his liability. A statement of the complainant is recorded and offence is compounded.
What are the chances of PDCs again are dishounred and what are the measures available with the complainant to recover such amount except for filling of fresh complaints u/s 138.
Can the accused be asked to serve the sentence of imprisonment, because he has failed to discharge his obligation of making payment of compensation as agreed between the complainant and accused.
Or an offence once compounded, can not be revoked again.
Xperts pls share their views.
adv. rajeev ( rajoo )
(Expert) 12 April 2012
Complaint will be disposed off in view of the compromise and LC order will be settled.
Complainant has to go for fresh complaints u/s 138, he has no other way.
V R SHROFF
(Expert) 12 April 2012
should not withdraw , unless fully paid.
Now no remedy, except to file another NI complaint. NEW CASE.
Raj Kumar Makkad
(Expert) 12 April 2012
If the PDCs again get dishonoured then this shall not only a fraud with the complainant but also with the court so the complainant has a definite remedy to approach the Sessions Court and file a contempt of court petition against the accused person, get restoration of the proceeding as not abide by accused person and also to go in NI Act.
All 3 proceedings can go simultaneously.
Deepak Nair
(Expert) 12 April 2012
If the PDC's get dishonoured, then the remedy is to file fresh proceedings as the appeal is disposed off.
The best measure is not to compund the case unless the cheques are honored.
Shonee Kapoor
(Expert) 12 April 2012
It is fresh NI case as well as contempt of court case.
Regards,
Shonee Kapoor
harassed.by.498a@gmail.com
H. S. Thukral
(Expert) 12 April 2012
Going with Mr. Makkad, any judgment/order obtained by fraud is a nullity. If this stand is taken by the complainant then he should see that the accused is arrested and serves the sentence. Alternately he can proceed afresh in the event of cheques dishonoured.
ajay sethi
(Expert) 12 April 2012
offece has already been compounded on acceptance of fresh PDC . should have insisted on demand drafts knowing reputation of accused .
remedy is file file summary suit .
ajay sethi
(Expert) 12 April 2012
mr chigh
supreme court has held that if accused fails to honour compromise settlement and issues cheque which has been dishonoured no fresh complaint under section 138 lies . since the cheque was not issued for debt due and paybale the suprem court says no fresh prosecution is maintanable
SC ruling on Section 138 of Negotiable Instruments Act
LEGAL DIGEST
BS Repoter / New Delhi June 23, 2008, 0:32 IST
The Supreme Court has ruled that criminal proceedings for issuing a cheque without sufficient balance in the account would be valid only if it is drawn for discharging a debt or liability. If it is issued to satisfy the terms of a compromise or settlement, Section 138 of the Negotiable Instruments Act could not be used to proceed against the drawer of the cheque.
The court stated so in the case, Lalit Kumar vs State of Uttar Pradesh. Earlier, two cheques were issued by the directors of a company and they were prosecuted. Meanwhile, there was a settlement under which Rs 5 lakh was to be paid to the creditor. However, this cheque also bounced, leading to another prosecution.
The Allahabad High Court rejected their plea to quash the proceedings. But on appeal, the Supreme Court stated that the latter cheque was issued in terms of a compromise agreement and not to satisfy any debt or payment due. Therefore, the second instance would not invite prosecution under Section 138. The high court judgment was set aside.
C. P. CHUGH
(Querist) 12 April 2012
Thanks all Xperts for their valuable comments. I would take appropriate precautions in due course.
M/s. Y-not legal services
(Expert) 12 April 2012
fresh complaint only the remedy under sec 138 of n.i act.. you can mention about the earlier case as cause of action., i think contempt of court will not maintainable..
-tom-
venkatesh Rao
(Expert) 13 April 2012
Dear Mr. Sethi,
I am not completely agreeable to the views expressed . Kindly give the citation or case number and date of disposal of the supreme court.
My view is: Issuance of a cheque presupposes the existence of a liability until conrary is proved. Admittedly, the new cheque is issued in dissolution of liability arising out of compromise recorded a court of law.
V R SHROFF
(Expert) 13 April 2012
since the cheque was issued for consideration of withdrawing 138 case, for compensation payable by accused, it is liability of accused. IN ONE OF MY CASE I already recd order & money in Appeal.
DEFENSE ADVOCATE.-firmaction@g
(Expert) 13 April 2012
Well it is again in theory that on PDC the court allowed compromise and case was withdrawn.
Mr Sethi please post the full citation or give more details regarding case no and parties.
This citation of SC opens another view point THAT IS after settlement and further bounce it is only civil liability and no conviction.
GOOD NEWS FOR THE ACCUSED OF CHEQUE BOUNCE CASE.
DEFENSE ADVOCATE.-firmaction@g
(Expert) 13 April 2012
Yes that citation is very much there .
1) even after compromise the original complaint was not withdrawn in the lower court and it was ultimately decided against the accused.
2) The complainant filed fresh complaint for bounce of compromise cheque which went upto SC and so this decison.
The SC has observed in the above citation of LALIT KUMAR THAT :-
15. Evidently, therefore, the second cheque was issued in terms of the compromise. It did not create a new liability. As
the compromise did not fructify, the same cannot be said to have been issued towards payment of debt.
C. P. CHUGH
(Querist) 13 April 2012
Thanks all Xperts,
Why to take a chance, i will not withdraw the case unless all PDC are encashed and request the Sessions to adjourn since die till such time.
M/s. Y-not legal services
(Expert) 14 April 2012
well.. wealthy discussion is going on..
dear sir., dont resolve it.. we may get some more reply..
-tom-
