Negotiable Instruments Act
srihari
(Querist) 27 February 2010
This query is : Resolved
Sir
I have received two cheques worth Rs.35 laks from one private limited company against the supply of materialin March 2008. Both the cheque got returned due to 'insufficient funds'. I filled the cases in 2008. Due to this, i strugleed both financially and mentally. Since i took bank loan for my bisiness i became defaulter and bank issued the notice under 'surface act'. I could manage to organize funds at a cost of 36% pa. Some amount i converted my business loan to Martgage loan and i am paying monthly instalments. All these things are there in record.
These NI act cases are expected to come for trial in next 3 to 6 months and the final judgement may come at the end of 2010. Almost 3 years of the default. I dont see any issue to prove since all the documentary evidence is availanle. My intention now is to get the compensation to the extant of double the cheque amount since i suffered the loss to that extant which i can prove very well.
Can i get the compensation to an amount which is double the cheque amount? What shall i focus to make the claim? Can the judge award this compensation? Pl advice?
Sukhija
(Expert) 27 February 2010
File Summary suit also on safer side bcoz limitation to file summary suit is three yrs only.At least in summary suit u will get ur amount back with interest from the day of filing.
Though it is provided the compensation to an amount which is double the cheque amount but it is not mandatory.U can ask compensation but u may get interest plus chq amount.It is discretion of the court to award compensation.
Arvind Singh Chauhan
(Expert) 27 February 2010
If agony described by you is in court's knowledge I hope court will surly compensate you.
Kiran Kumar
(Expert) 27 February 2010
yes compensation can be awarded, move the necessary application (the provision to be advised by your counsel)....as advised by Mr. Sukhija the criminal court has discretion to award compensation.
however u should file a civil suit for recovery as well.
B K Raghavendra Rao
(Expert) 27 February 2010
As advised by experts, claim compensation explaining all the facts that you have mentioned here. As Sri Kiran Kumar has suggested, you may file money recovery suit also.
Adinath@Avinash Patil
(Expert) 27 February 2010
IT IS BETTER TO FILE CIVIL SUIT/SUMMARY SUIT FOR RECOVERY OF CHEQUE AMOUNT.
THE N.I.ACT SECTION 138 IS NOT RECOVERY SUIT IT IS ONLY FOR PUNISHMENT AND COMPENSATION BUT IT DEPENDS UPON EVIDENCE.
Raj Kumar Makkad
(Expert) 27 February 2010
I have similar opinion as of all other experts.
Parveen Kr. Aggarwal
(Expert) 27 February 2010
Section 357 of the Code of Criminal Procedure, 1973:
"357. Order to pay compensation:- (1) When a court imposes a sentence of fine or a sentence (including a sentence of death) of which fine forms a part, the court may, when passing judgment order the whole or any part of the fine recovered to be applied-
(a) In defraying the expenses properly incurred in the prosecution,
(b) In the payment to any person of compensation for any loss or injury caused by the offence, when compensation is, in the opinion, of the court, recoverable by such person in a Civil Court;
(c) When, any person is convicted of any offence for having caused the death of another person or of having abetted the commission of shelf all offence, in paying in, compensation to the persons who are, under the Fatal Accidents Act, 1855 (13 of 1855) entitled to recover damages from the person sentenced for the loss resulting to them from such death;
(d) When any person is convicted of any offence which includes theft, criminal, misappropriation, criminal breach of trust or cheating, or of having dishonestly received or retained, or of having voluntarily assisted in disposing of stolen property knowing or having reason to believe the same to be stolen in compensating any bona fide purchaser of such property for the loss of the same if such property is restored to the possession of the person entitled thereto.
(2) If the fine is imposed in a case, which is subject to appeal, no such payment shall be made before the period allowed for presenting the appeal his elapsed, or if an, appeal be presented, before the decision of the appeal.
(3) When a Court imposes a sentence, of which fine does not form
a part, the Court may, when passing judgment, order the accused person
to pay, by way of compensation, SUCH AMOUNT AS MAY BE SPECIFIED IN THE ORDER TO THE PERSON WHO HAS SUFFERED ANY LOSS OR INJURY BY REASON OF THE ACT for which the accused person has been so sentenced.
(4) An order under this section may also be made by all Appellate Court or by the High Court or Court of Session when exercising its powers of revision.
(5) At the time of awarding compensation in any subsequent civil suit relating to the same matter, the court shall take into account any sum paid or recovered as compensation under this section."
So, besides adducing evidence to prove the commission of offence by the accused, you must lead evidence pertaining to the losses suffered by you in the manner stated by you in the query, in order to get compensation.
srihari
(Querist) 28 February 2010
Dear Friends
Thanks you very much for your kind suggestions. I am sure that your guidance in this matter will help me in 'producing all the facts and evidances to the court' in order to get the compensate my looses due to the 'default of accused'.
Recently i have read in one article that ' the accused in NI act cheque bounce cases' can easily escape from the punishment by paying/ depositing the cheque amount just before or on the date of judgement' and now a days judges are also seemed to be liberal in such acts. Is it so ? Is that easy to escape from the criminal liability in NI Act cases? Normally in india we know that the cases will come for hearing after 2 to 3 years. So the accused is just enjoing this period and at the last minute he just pays / deposits the cheque amount with the court and pay for 'aquittal'.
I personally feel that it will / shall no happen. Can anyone explain .. any posibility of this in practical in indian courts ?
Thank u
H. S. Thukral
(Expert) 28 February 2010
File civil suit as well. Your apprehensions are well founded. Accused are making payments in installments.
Guest
(Expert) 28 February 2010
i agree with experts.
srihari
(Querist) 28 February 2010
Dear Harbhajan sab
Can a complainant reject the proposal of the 'payment of cheque amount' during the cource of hearing based on the ground that 'complainant' suffered a lot due to the default of the accused and ask for the action according to the provisions under NI act (wherein the punishment and compensation to the extant of 2 times of the cheque amount). Atleast compensation by providing the proofs for the losses due to the 'default of the accused'.
Parveen Kr. Aggarwal
(Expert) 01 March 2010
Yes. Although an offence for dishonour of a cheque is compoundable yet the same cannot be compounded unless the complainant agrees to it. The court cannot force a complainant to compound the offence. A complainant can always refuse to compound the offence. In case of such refusal, the court will have no option except to punish the accused if the commission of the offence is proved on record.
srihari
(Querist) 02 March 2010
Dear experts
Thanks for your valuable advices
