Vamsi (Housewife) 20 September 2009

138 Summon after 4 years

Hi,

My name is Vamsi. I was working in Bangalore between Oct 2003 and March 2004. In April 2004 I moved to US and I am living in US ever since.

Before I moved to US, I closed all my bank accounts and credit cards in India. I do not have any liabilities to the best of my knowledge. On September 19, 2009 my parents received a 138 summon on my name from Magistrate court in Bangalore. The notice had no other details, like who filed the complaint or why the complaint is filed.

I am asked to appear before the court in Bangalore on Oct 12th. Since I am in US, I cannot come to India on Oct 12th. What options do I have? What should be my next steps?

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4 Replies

N.Ramakrishnan (Advocate/ Senior Partner) 20 September 2009

Dear Mr. Vamsi,

It could be possible that one of the post dated cheques issued by you has been dishonoured and the drawee has proceeded against you U/s. 138 of NI Act. It is quite possible that even an undated cheque might have been filled by one of your creditors and deposited subsequently. In any event a complaint seems to have been filed and your parents have received the summons.

Please engage a lawyer to find out the details of the complainant and the cause thereof and if the monies are actually payable, your lawyer/yourself can talk to the party and try to arrive at a settlement so that you can avoid appearing in India. If the monies are not payable by you and somebody has manipulated the instrument to file the complaint, you have to contest the same by engaging a lawyer. You will also have to appear before the court on 2 occassions initially, one to get the official copy of the complaint and second to answer the charge. Thereafter, you can seek exemption from appearance by filing a petition U/s. 205 Cr.PC and getting your counsel to appear on your behalf. In any event, you need the services of a good lawyer immediately.

Thanks,

Ramakrishnan, ADV

Sachin Bhatia (Advocate) 20 September 2009

As you said your parents received summons, they also received a copy of complaint along with the summons. You can find the name of the complainant in the title of the case. It is better for you to appear before the court and furnish the bail bonds, you have to contest the case by engaging a lawyer.

(Guest)

NANDKUMAR B.SAWANT.M.COM.LL.B.(MUMBAI),ADVOCATE

MOBILE 09325226691, 09271971251

e.mail.adv.nbsawant@yahoo.co.in

e.mail.nandkumarbs@sify.com

REGARDING SUMMONS OF N.I. ACT.SEC.138 KINDLY NOTE THAT

1.ON THE DATE MENTIONED IN THE SUMMONS OCT.12 , 2009 YOU NEED NOT WORRY.YOU HAVE TO SIGN VAKALATNAMA AND YOUR ADVOCATE CAN APPEAR ON ;THAT DATE IN THE COURT AND REQUEST THE COURT TO KINDLY GIVE NEXT DATE DUE TO YOUR SICKNESS .YOU CAN EASILY GET NEXT DATE.

2.YOUR ADVOCATE WILL COLLECT COPIES OF COMPLAINT FILED AGAINST YOU UNDER SECTION 138 OF NEGOTIABLE INSTRUMENTS ACT SECTION 138 ALONG WITH COPIES OF CHEQUE DISHONOURED AND OTHER DOCUMENTS.

3.YOU CAN GET THE NAME AND ADDRESS OF THE COMPLAINENT ,THEN IN CASE YOU REALLY OWE SOME AMOUNT TO THAT PERSON THEN YOU NEED NOT COME TO SETTLE THE ACCOUNT YOUR ADVOCATE CAN NEGOTIATE WITH THE COMPLAINENT AND IF ANY REASONABLE CLAIM IS THERE AND YOU HAVE SUFFICIENT FUNDS TO SETTLE THE AMOUNT THEN IT IS UP TO YOU TO SETTLE THE MATTER OR TO PROLONG IT. IN CASE YOU ARE SETTLING THE MATTER THEN DO NOT SEND DIRECT PAYMENT TO THE PERSON WHO IS COMPLAINENT AS IT IS ADVISIBLE TO MAKE PAYMENT ON COURT DATE AND THE COMPLAINENT SHOULD BE FORCED TO APPEAR IN THE COURT PERSONALY AND SUBMIT THE APPLICATION WITH HIS SIGNATURE AND IN PERSON HE SHOULD TELL THE COURT TO ALLOW TO WIDRAW THE COMPLAINT. EVEN IF YOU ARE NOT PRESENT IN COURT PERSONALY THEN ALSO THIS IS POSSIBLE.

4.ALTERNATELY YOU MAY FILE AN APPLICATION TO THE HIGH COURT HAVING AREA JURISDICTION UNDER SECTION 482 OF CRIMINAL PROCEDURE CODE FOR QUASHING THE FALSE COMPLAINT AND THE PROCESS ISSUED BY THE JMFC COURT UNDER SECTION 138 OF N.I.ACT. YOU HAVE TO FILE THIS APPLICATION TO THE HIGH COURT THROUGH YOUR ADVOCATE .YOU NEED NOT COME PERSONALLY YOU MAY SIGN ON VAKALATNAMA AND THE THINGS CAN BE DONE.

5 KINDLY FURTHER NOTE THAT THIS IS A DIRECT COMPLAINT FILED IN THE COURT AND POLICE HAVE NO ROLE OTHER THAN JUST SERVICE OF SUMMONS.THEY CAN NOT ARREST YOUR OTHER FAMILY MEMBERS KINDLY NOTE AND CONVEY TO YOUR OTHER FAMILY MEMBERS NOT TO BE AFRAID OF THEM. ONLY PRECAUTION YOU HAVE TO TAKE THAT AS SUMMONS WAS IN YOUR NAME AND YOUR PARENTS HAVE ACCEPTED THE SAME .THEY SHOULD NOT HAVE ACCEPTED THE SAME AS IT WAS NOT IN THEIR NAME.BUT AS SUMMONS IS ACCEPTED AND IF NO ONE IS APPEARING IN THE COURT ON NEXT DATE THEN THE COURT MAY ISSUE WARRANT AGAINST YOU.HENCE BE CAREFUL AND IN CASE YOU ARE COMING TO INDIA THEN YOU CAN APPROACH THE COURT WITH SURETY DOCUMENTS RATION CARD. , ELECTION ID CARD, LAND OR HOUSE PROPERTY OWNERSHIP EXTRACT LATEST EXTRACT AND SURETY AND YOU CAN APPEAR IN PERSON AND SUBMIT THE SURETY AND APPLY FOR CANCELLATION OF WARRANT IN THE COURT. KINDLY NOTE THAT THIS IS A BAILABLE OFFENCE AND WARRANT WILL BE CANCELLED .SO YOU NEED NOT GET WORRIED.

6 IN CASE YOU NEED ANY FURTHER INFORMATION OR HELP FOR SETTLING THE MATTER OR QUASHING THE SAID COMPLAINT FROM HIGH COURT THEN YOU MAY SEND DETAILS OR CALL FOR ANY FURTHER HELP.

WITH BEST REGARDS TO YOU YOUR FAMILY AND FRIENDS.

THANKING YOU

YOURS SINCERELY

NANDKUMAR B.SAWANT.M.COM.LL.B.(MUMBAI),ADVOCATE