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suryagaurav (manager)     10 April 2011

Cheque bounce case filed and accused died after

I have filed s.138 case in 2007 and accused died in 2009, what are legal option available to me, please guide



Learning

 21 Replies

kapil raj sharma (MSME.RTI BANK RECVOREY Adviser)     10 April 2011

hi, u can make the party accused  familyer in this matter.

Arvind Singh Chauhan (advocate)     10 April 2011

No criminal action can be taken against accused's legal heir, but you may file suit for recovery of money against the legal heirs. Please don't let it be time barred.

1 Like

Kiran Kumar (Lawyer)     10 April 2011

if the accused has died then the complaint also goes...u can not held other family members liable for the criminal act (if any) committed by the deceased.

 

u ve an option to file recovery suit but u ll ve to set out a proper case for this purpose.

G. ARAVINTHAN (Legal Consultant / Solicitor)     11 April 2011

criminal liability goes with the person. One cannot shift criminal liability on the Legal Heirs.

Suing the heirs is possible only in Civil cases and that too CPC restricts claim as to the amount inherited by the Heir

adv. rajeev ( rajoo ) (practicing advocate)     11 April 2011

You dont have any other option.  If debt is not time barred then file a suit for recovery of money on the legal heirs of the deceased.  Cause of action arised to file a civil suit from the date of issuance of cheque.

prashant pundhir (Criminal Lawyer)     11 April 2011

138n.i. act is a criminal proceeding and not civil . In any of the criminal proceeding only  person who commited the offence,will get punished and not his legal heirs . So with the death of the accused, the case of 138n.i.act is over .

However,you can go to the civil suit for the recovery of the amount from his legal heirs and for that take advise from any civil matters expert which unfotunatly not I am .

Hemant Agarwal (ha21@rediffmail.com Mumbai : 9820174108)     11 April 2011

1.  In Neeta Bhalla case judgement, the SC has held that there must be  "SPECIFIC"  averment against the "SPECIFIC"  accused for the offence under the N.I.Act, to fix Vicarious liability.  AND vicarious liability is not deemed or presumed and has to be substaintiated against the "SPECIFIC"  accused and NOT ANY OTHER PERSON,  INCLUDING FRIENDS, RELATIONS, LEGAL HEIRS OR WHO-SO-EVER.


2.  No averment = No allegation = No trial under the N.I.Act
However in the case of complaints against Corporates,  the deceased accused chairman / mg.director / in-charge person may be substituted by a  "duly appointed"  "legal representative" of the company for representation in the Courts,   SINCE CASES AGAINST A COMPANY NEVER GETS ABATED.


3.  IF ABC makes an averment against  XYZ in the complaint application and XYZ expires, the  "SPECIFIC"  averment against the "SPECIFIC"  accused for the offence is MANDATORILY ABATED.  Now the complaintant cannot amend the complaint application to include any other name (including legal heirs or who-so-ever)


4.  IF such transfer of criminal cases / charges / allegations were transferable, THEN a murder charge can also be transferred to the Son if in case the accused father was to expire.


Keep Smiling .... Hemant Agarwal

Ravindra (Proprietor)     11 April 2011

In case of companies, if the company is closed, will it be treated as death of a person

zahur (Advocate)     11 April 2011

if accused died in crimenal prosending, then crimenal complan also over... u have only one option to recover your money .. you may file suit for recovery  against accused legal heirs. prescribed to Civil Proceser Code..

Hemant Agarwal (ha21@rediffmail.com Mumbai : 9820174108)     11 April 2011

for Ravindra :


1.   A company cannot be closed without due procedures as prescribed under the Companies Act.     A company can be closed  "ONLY AFTER"   due permission from the Competent Authority (i.e. Registrar of Companies "ROC")


2.  IF the company has outstanding liabilities to the public or other persons, THEN  "ROC" does not grant permission to close the Company.  The companies balance sheet & other schedules should have a  "no liability"  amount under the various accounting heads, before filing proceedings for closeure of company.  Further IF any judicial proceedings in any court is pending, THEN too the company may not file proceedings for closeure of company.


3.  IF the company is not allowed to be closed by ROC,  proceedings under N.I.Act  "cannot be abated"  by the criminal courts.  With proper legal jugglery procedures, the assets of the company can be auctioned for recovery of the liabilities of the company.


4.   Contrary to what other members have stated above (in context to the topic) civil proceedings for recovery is not possible for recovery of vicarious liability for offences u/s 138 of the N.I.Act, IF in the event the individual accused u/s 138 has expired before conclusion of Trial.


Keep Smiling .... Hemant Agarwal

Ravindra (Proprietor)     12 April 2011

Thanks for clarification. If the company is a proprietorship, will the same procedure be applied?

Regards

Hemant Agarwal (ha21@rediffmail.com Mumbai : 9820174108)     12 April 2011

for Ravindra :

 

Under the Companies Act, there is no such thing as proprietorship company, since a company mandatorily should have atleast 2 directors.

 

Keep Smiling .... Hemant Agarwal

Ravikant Soni (LAWYER IN JAIPUR)     12 April 2011

You may file recovery case accourding CPC.

Anil Agrawal (Retired)     22 April 2011

Due process of law? I know a case where the ROC allowed a pvt ltd company to close down evne though large sums were outstanding against it. Corruption? What else?


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