Negotiable instruments act

GURNOOR KAUR (Querist) 06 March 2020 This query is : Resolved
A person announced PO by court under trial of sec 138 of Negotiable Instruments Act , and for attachment of property , will the provisions of cpc will be applicable?

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This discussion clarifies whether the Civil Procedure Code (CPC) applies to property attachment when a person is declared an absconder under Section 138 of the Negotiable Instruments Act. The consensus is that CPC provisions are generally not applicable, as the proceedings are criminal in nature, governed by the Criminal Procedure Code (CrPC), specifically sections like 82 and 83. A relevant judgment, Abdul Rehman Versus State of Rajasthan, is cited to support the correct procedure for declaring an accused an absconder and attaching property under CrPC.

KISHAN DUTT KALASKAR (Expert) 06 March 2020
Dear Sir,
Unless it is compromised before Lok Adalath CPC provisions are not applicable.

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Raj Kumar Makkad (Expert) 06 March 2020
The provisions applied are criminal in nature than how civil procedure code can enter therein?

There are no chance of CPC to make its room in the given facts.

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Advocate Suneel Moudgil (Expert) 06 March 2020
1. property shall be attached as per section 85 CrPC

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Advocate Suneel Moudgil (Expert) 06 March 2020
CPC is not applicable

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GURNOOR KAUR (Querist) 06 March 2020
Thank you for responding so fast...
actually its for my moot preposition for which i have to present my case ....
is there any way i can prove legally through any sec that only crpc will be applicable
and
the family of accused has pleaded that its residential property and the right of wife of residence is compromised , so it should not be attached?
so what should be my argument against this?

Raj Kumar Makkad (Expert) 07 March 2020
Refer to a judgment titled Abdul Rehman Versus State of Rajasthan,2007 (Law Suits (Raj) 100 Appeal No: 544 of 2007 , Dt. 10 May 2007, wherein it is held that

[6] It is settled proposition of law that before declaring the accused asabsconder, the Court has to be satisfied that accused had left their or they are avoiding service or there is no chance of arrest in nearfuture. Learned Magistrate has not proceeded in accordance with the law. Hehas further committed illegality that he has consigned the file to the recordwithout recording the evidence. For this, Section 299, Cr. P. C. is very muchclear in which it is written that when accused is declared absconder,has to record the statements of the witnesses produced by theprosecution so they can be read in evidence in the contingency shown in theSection itself. Merely on saying by the Prosecutor that they do not want toproduce evidence, learned Magistrate has consigned the file to the record. Thispart of the order is also bad in eye of law. It appears that learned Magistratesare not adhering the procedure laid down in the Code of Criminal Procedure.Learned Magistrates should be careful in future in such cases when accused aredeclared absconder under Section 299, Cr. P. C.”

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Dr J C Vashista (Expert) 08 March 2020
In the instant case provisions of CPC will not be applicable, where you have stated that the accused has been declared absconder u/s 82 Cr PC and his property has been attached u/s 83 of the Criminal Procedure Code, 1973

Rajendra K Goyal (Expert) 16 March 2020
Since it is a moot problem, have some homework for material. Experts have sufficiently guided.

T. Kalaiselvan, Advocate (Expert) 21 March 2020
The proclamation order was issued under criminal laws hence the civil procedure code would not be applicable in this situation.

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