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Marni Papaji Rao (Advocate)     07 June 2009

legal debt under NI Act

in cheque bouncing case, a complaint under section 138 of the NI act and a civil Suit for the cheque amount was filed. The civil Suit was dismissed. What is the effect on the crinminal complaint in view of the explanation to Section 138.  Will the complaint be dismissed or what?

Papajirao



Learning

 6 Replies

A V Vishal (Advocate)     07 June 2009

Dear Rao

On What grounds the suit was dismissed has to be looked into, You have not mentioned the facts of the case, presuming it a pure 138 case in my opinion the accused can move the criminal court on grounds that the civil suit is struck down by the court on grounds that the case is not maintainable since prima facie the complainant could not prove his complaint, however, if the case is struck down on some other grounds then you will have to give it another look.

Marni Papaji Rao (Advocate)     08 June 2009

Thank you Mr.Vishal.

The Civil suit was filed on the basis of the same cause of action  ie. cheques for allegeddebt. A Complaint was filed for cheque bouncing and also a civil suit for the amount of the bounced cheque.

The Civil Suit was contested  and the judge dismissed the Suit as not proved .There is no appeal from the dismissed civil suit.  The Criminal proceedings are still going on. The Civil suit was dismissed in five years but the criminal complaint was going on for 6 years.

Kindly let me know whether there any precedents.

Thanks.

PARTHA P BORBORA (advocate)     08 June 2009

 

look my friend there is a special Act to handle a bounched cheque U/S 138 N.I.Act. so if a case is filed unser Section 138 NI Act. a civil case for the same cause of cation is not sustainable and shall be dismissed by the civil court. in a case of cheque bounced there is only one provision ie 138 of NI Act. u will get justice if u file a case US138 NI Act and it will be a crininal case not civil. civil court has no jurisdication in a case of cheque bounce, so pl consult a locao criminal advocate/.

V.S.R.Deekshitulu (B.Sc, B.L)     09 June 2009

Mr Partha

I feel that your opinion is wrong.  Sec. 138 NI Act is meant for punishing a person who issues a cheque and which on presentation bounced.  There the court will impose a punishment and fine. It will not give any direction to pay the amount to the creditor due under the cheque. Hence the payee under the cheque has to find out his remedies for recovery of the amount by going to a civil. Do not be under the impression that civil court has not jurisdiction to entertain a suit for recovery in respectg of the amount couvered by a cheque whic was bounced.  There is no expression exclusion of the jurisdiction of Civil courts for recovery of the amount, under Sec. 138 of NI Act, or under C.P.C.

It is like a case where a person tresspasses into the property of another, the later can file a Criminal complaint and also a civil suit for recovery of possession.

Punishment is for the offence, but recovery of the amount is altogether diferent forum since the Criminal court will not grant a decree like civil court for the amount covered under the cheque.

What is the reason under which the civil suit based on cheque was dismissed. However the accused in the NI Act, case can taken shelter under the findings given by the Civil Court which rendered the judgment in the civil suit base on the cheque.

If the dismissal of the civil suit is that there is no proof of debt, then the same is very much relevant in the criminal proceedings to find out whether there is a legally enforceable debt or not.

If my opinion is wrong I invite your view in this regard.

ASHUTOSH (lawyer)     09 June 2009

no effect going on on the complaint u/s 138 unless and untill accused not prove that cheque was not issued for and debt or liability

adv. rajeev ( rajoo ) (practicing advocate)     10 June 2009

Civil suit is no way connected to the criminal case.  In this u have to prove the legally payable debt. Regarding presumption of legally payable debt recently it is reported in IlR Kar. 2008 so plese go thru., it.


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