Ni-138 unable serve summons
M.Sheik Mohammed Ali
(Querist) 28 January 2014
This query is : Resolved
Dear experts,
one of 138 case pending last 3 years at Fast Track Court, Chennai. while so, the accused not appeared in single appearance. in this situation, we were taken lot of time taken FS and Summons, this situation how can i get NBW before the Magistrate,
Give me valuable suggestion:-
Any Case laws
and proceedure
the Cr.P.C. 82, section will apply or not.
Thanks
Devajyoti Barman
(Expert) 28 January 2014
If you could show that accused persons in spite of receiving the summons has not appeared in the case and applied for bail, the court is bound to issue W/A.
Rajendra K Goyal
(Expert) 29 January 2014
If after serving of the summons, the accused is not appearing court would issue NBW / warrant of arrest.
Case law is not provided in this section. For procedure contact local lawyer.
ajay sethi
(Expert) 29 January 2014
whether summons have been served or not ? if it has been served and accused has failed to appear you will get bailable warrrant in first instance
M.Sheik Mohammed Ali
(Querist) 29 January 2014
unable to serve summons, when ever we try to serve by post, the no such person or unclaimed. stated by postal dept. in this situation how arrest him without summons serve, any case law or citation. pls provide me.
Devajyoti Barman
(Expert) 29 January 2014
Without service of summons no NBW will be issued.
Try to get the summons served through the ofFice of SP/Commissioner.
Advocate. Arunagiri
(Expert) 29 January 2014
Mr.Barman is correct. Without serving the summons, the court will not issue warrant.
You have to search for the correct address. If the addressee is colluding with the postman and returning the summons, give a complaint to the post master.
No such person and unclaimed directly contradictory and both can not be true.
What is the exact endorsement writen by the post office on the returned tapal?
Guest
(Expert) 29 January 2014
Well advised.
Raj Kumar Makkad
(Expert) 30 January 2014
Better take personal interest and manage the summoning staff of the court to deliever the summons to the accused person at any cost.
R.V.RAO
(Expert) 31 January 2014
Cognizable offences are those offences for which a police officer may arrest without court mandated warrant in accordance with the first schedule of the code of crim.prced.
cheque bounce is cognizable offence.so arrest without warrant and summons possible.
very often defaulters evade service of notice under NI Act
A new question emerged before the SC in year 2006 itself , that if the notice came back with a postal endorsement that the defaulter is not available at his residence or the premises were found locked, could the aggrieved party still move court for prosecution of drawer of the cheque?
The argument advanced by one such defaulter, D Vinod Shivappa, was that as the notice to pay up was not served on him, the mandatory clause remained unfulfilled and the trial court could not have taken cognizance of the complaint filed by the person to whom the money was due.
Rejecting this argument, the Bench ruled that once a notice was posted to the defaulter's address even if it came back unserved, the aggrieved party had a right to move the court.
The time limits for notice and payment have been fixed to protect honest drawers, whose cheques may have been dishonoured for reasons beyond their control or due to bonafide mistakes, it said.
The provision to Section 138 is not meant to protect unscrupulous drawers who never intended to honour the cheques issued by them, it being part of their modus operandi to cheat unsuspecting persons, said the Bench.
Rejecting Shivappa's plea that notice could not be served upon him as he was out of station, the Bench said: "If in such case the law is understood to mean that there has been no service of notice, it would defeat the very purpose of the Act.
It would be then very easy for a dishonest drawer of a cheque to make himself scarce after issuing the cheque so that the requisite statutory notice can never be served upon him."
The court said it can't also lose sight of the fact that the drawer may, by dubious means, manage to get an incorrect endorsement made on the envelope that the premises were found locked so that the addressee was not available at the time the postman went to deliver the letter.
so police can solve yur problem to trace the culprit.you know how to get police help you.
T. Kalaiselvan, Advocate
(Expert) 01 February 2014
The alternative suggestion expressed by Mr. B V Rao seems to be feasible, why dont you try that.
R.V.RAO
(Expert) 02 February 2014
thank you sri kalaiselvan
Devajyoti Barman
(Expert) 02 February 2014
Mr Rao, I am curious to know the decision as it seem to tread uncharted territory as far as my knowledge goes.
I will be obliged if you give details of the said decision.
