LCI Learning

Share on Facebook

Share on Twitter

Share on LinkedIn

Share on Email

Share More

DEFENSE ADVOCATE.-firmaction@g (POWER OF DEFENSE IS IMMENSE )     04 January 2011

Gray areas of NI 138 proceedings

I am preparing to file a general writ petition before the Supreme court regarding various gray areas of proceedings in NI 138 cases and accused face harrassment in complete voilation of their fundamental rights.

1) The most important point is issue of NBW against the accused on vague grounds and specific guidelines are necessary to be followed all over the country.

2) There is no provision of dicharge of accused even in outright false cases.Once the process is issued the intervention of higher courts is limited.

we want to pray that a procedure must be inserted or Govt be directed to modify the law so that the accused should be given opportunity to contest the legality of proceedings through advocate without apperaing till it is decided.

I request all concered to join me a  party and particularly friends at Delhi for follow up action. please contact me with your inputs at shashikumarnashik@gmail.com.

My basic approach is when SC says that even a murder accused should be granted bail as a right ref- Mehre case than why the innocent  accused of NI 138 cases should be chased by police with NBW and even as in Banglure fake NBW in thousands.



Learning

 42 Replies

Adv. Samar (Advocate)     04 January 2011

you may not succeed, 138 NI Act is summon trial and no arrest is required, NBW only issued when accused deliberately avoids litigations, police or state are not made party to the case, no need of police in these cases, it is mentality of we Indians that if we have some sort of debt we just issue cheques thinking that the other person cant do anything, even otherwise it used to take 2-3 years to recover such amount, so taking interest to protest cheaters doesn't show a good faith, your writ will likely to be dismissed with heavy costs, please do not file it.

4 Like

DEFENSE ADVOCATE.-firmaction@g (POWER OF DEFENSE IS IMMENSE )     04 January 2011

welcome with negative inputs which is better than no inputs.

Om Prakash Dhusia (HR assistant)     04 January 2011

Yes I agree with Mr. Samar.Advocate, because you generally treat the issuer of cheque, a victim of loan sharks and you always cry for those culprits and not for the innocent who lend his helping hand to the needy,out of compassion,since you have a negative attitude towards the society as a whole.

Moreover who says, bail is a right?No sir, it is the perorogative of the court whether to grant bail or not and meanwhile can you cite the reference of Mehre case?Come to Uttar Pradesh and you will realise the truth where my son"s bail was rejected thrice by the same District judge u/s 364 IPC and it was not even murder.

It is very simple when one doesn't have enough funds in his account then why to issue cheque for nothing?It is simply to borrow money with deceit.

Comeon Mr.Shashi Kumar, do something constructive which is good for the society.I pray you shouldn't get any support of the people for such an unlawful action of yours.

1 Like

Amit Minocha (Lawyer)     04 January 2011

Normally NBW are not issued immediately by Courts in 138 NIA cases. Firstly notice is issued, then BW and finally the NBW comes into picture. Even if those are issued the same can be got cancelled by assigning reasons for non-appearance to the Court. 

y.joseph (Advocate)     04 January 2011

sir

I agree with Mr. Samar.Advocate,

so please dont try

Dawood J. Khatri (Advocate)     05 January 2011

I agree with the opinions expressed by Mr. Sameer, Mr. Om Prakash Dhusia and Mr. Amit Minocha that it would be futile to file such a Writ Peition.  The Writ Peition would be against the very spirit of the amended Negotiable Instruments Act which seeks to streamline the use of cheques in financial transactiions.  It is also rightly stated that the Courts do not issue NBWs right away.  First a bailable warrant is issued on the accused's default in appearing before the Court. After the bailable warrant is executed and again the accused fails to appear before the Court, the Court rightly issues non-bailable warrant.  If the accused contends that the case is false, he has the option to approach the High Court under S.482 Cr.P.C. for quashing the proceedings. If the case is really false, the HC has the powers to impose punitive costs.  So, there are enought safe-guards provided in Law. It will be difficult to support the Writ Petition.

D.J.Khatri, Advocate, Mumbai

1 Like

N.K.Assumi (Advocate)     05 January 2011

In complainyt case the court served copy of the complaint followed by bailable warrant and again followe by non bailable warrant depending on the circumstances of the case and considering the liberty of the citizen. But if you think that there are greys area in the law i wish you the best in your noble efforts.

DEFENSE ADVOCATE.-firmaction@g (POWER OF DEFENSE IS IMMENSE )     05 January 2011

Mr Dhusia please read the attached judgment of the SC for bail, you advocate has not put it before the court.


Attached File : 0 0 mehtre anticipatory bail sc.pdf downloaded: 407 times

DEFENSE ADVOCATE.-firmaction@g (POWER OF DEFENSE IS IMMENSE )     05 January 2011

And Mr Dhusia also read the SC directive to UP Govt and UP courts for bails.


Attached File : 40 40 6 sc bail anticipatory 2008 206 2008 sc for up.pdf downloaded: 334 times

DEFENSE ADVOCATE.-firmaction@g (POWER OF DEFENSE IS IMMENSE )     05 January 2011

And those suggesting HC , is it easy.

DEFENSE ADVOCATE.-firmaction@g (POWER OF DEFENSE IS IMMENSE )     05 January 2011

And for advocate friends supporting arrests which I think is without any practical experience , please see even a BAR COUNCIL OF INDIA MEMBER is not spared.

NEW DELHI: CBI on Monday arrested a member of the Bar Council of India on charges of alleged corruption in granting affiliation to a law school.

Official sources said the agency arrested
Rajendra Rana, member of the Bar Council of India and conducted searches in his office and residential premises.

In total, about seven places were raided by the CBI in the National Capital Region in connection with the case.

Sources said the case related to grant of affiliation to a private law college in return of illegal gratification.



Read more:
CBI arrests Bar Council member, raids his premises - The Times of India https://timesofindia.indiatimes.com/india/CBI-arrests-Bar-Council-member-raids-his-premises/articleshow/7135652.cms#ixzz1A8oZOBw2

20TH DECEMBER 2010 TIMES OF INDIN  MUMBAI.

Arun Agrawal (Business Consultant)     05 January 2011

Can a Delhi court entertain complaints u/s 138 NI Act is the cheque which has been dishonoured has been

issued on a Bank with its branch in Noida ?

Om Prakash Dhusia (HR assistant)     05 January 2011

Thanking you for enlightening me with these developments but the truth is that accused under 302 IPC are not granted bail as yet even from the H'ble High Court at Lucknow bench and we have never heard of Anticipatory Bail in U.P. despite a clear ruling from the Apex Court.So why Secretary Law and Order is not hauled in the court for flouting orders from the Honorable Supreme Court? 

DEFENSE ADVOCATE.-firmaction@g (POWER OF DEFENSE IS IMMENSE )     06 January 2011

Your advocate should also be hauled by not keeping in touch with latest case laws.

What supreme court has told that till the law is changed in UP the sessions courts must grant intrim bails. WHAT ELSE YOU WANT , EVEN IF THE UP GOVT DOES NOT ENACT LAW TILL THAN THE SESSIONS COURT MUST GIVE BAILS.

AND FOR YOUR INFORATION THE UP GOVT IS TAKING STEPS IN THIS MATTER BUT IT TAKES TIME TO COMPLETE PROCEDURE.


Leave a reply

Your are not logged in . Please login to post replies

Click here to Login / Register