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Shekhar Nagpal (Business)     01 September 2010

Case of recovery under 138 cr

A bank X files a case under 138 cr for recovery against cheque from a party Y.

Sumons are  issued by the court.

in course of time the party pays the amount to the bank. The bank gives in writing that the amount has been received. The bank does not withdraw the case.

The party Y in the mean time is declared P.O. by the court.

Please advise what the party should do?



Learning

 5 Replies

Sameer Sharma (Advocate)     01 September 2010

You can file petition under Section 482 of the Code of Criminal Procedure in High Court for quashing of criminal complaint under Section 138 of the Negotiable Instruments Act as well as the summoning order and the other consequential proceedings.

If the aggrieved order passed by the District Forum you can appeal to State Consumer Disputes Redressal Commission.

You can mention following facts:

- The X bank had caused undue harm and damage to the prestige of the complainant and also caused monetary loss to Y as the X bank had already agreed upon full and final payment and also issued receipt for the same. Hence, the complaint was filed.

- It was also stated that the complainant Y was declared as Proclaimed Offender by the court of Judicial Magistrate, due to non-appearance of the complainant in a case under Section 138 of Negotiable Instrument Act filed by the X bank against the complainant.

- In appeal, it is submitted by the appellant/complainant that the learned Court has taken a serious note of the unfair trade practices and professional misconduct on the part of respondent bank and has resulted in miscarriage of justice to the appellant/complainant.

- The respondent Bank has indulged in serious malpractices and extortion of money from helpless customers under the grab of settlement schemes. The professional misconduct of the respondent from its own settlement, accepting money towards full and final settlement and then not adhering to its terms is prima facie evident on record. Gross negligence coupled with malicious attitude in not granting No Dues Certificate and not withdrawing proceedings under Section 138 and getting the appellant declared P.O.

- Thereafter, the petitioner filed the instant petition for quashing of the complaint, the summoning order and the consequent proceedings.

 

 

 

 

 

 

 

 

 

DEFENSE ADVOCATE.-firmaction@g (POWER OF DEFENSE IS IMMENSE )     01 September 2010

It is the lethargy of the bank staff and advocate not to withdraw the case.

No need to go to HC , just apply to same court. At the most you can ask for witness summons for bank official and get the testimony that money is recieved.

M.G.RAJESWRI (LAWYER)     01 September 2010

As you have the written letter given by the bank you can go to the same court and apply for witness summons of the Bank official and get the case closed as due amount receive.

M.G.RAJESWRI (LAWYER)     01 September 2010

U can also file quash proceeding u/s 482 C.R.P.C in HC to quash the entire 138 complaint before the judicial magistrate and all consequential order passed. can file the written letter of the bank given to you  as they have received the due amount as typed set.

M.G.RAJESWRI (LAWYER)     01 September 2010

one more suggestion i think you can also file recall and reopen petition before the same court  and prove that you have paid the entire due amount and the complaint has to be dismissed.


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