Venkat R Venkitachalam (Consultant) 16 February 2010

N I Act Compliance

Could I get a clarification on the following issue?

A cheque was dishonoured for want of funds in the account. Notice under Sec.138 was received and a DD was sent to party for the amount of the cheque. Party also received the amount but returned the DD claiming that interest and bank charges were not paid. He went ahead and filed a Complaint. Complaint also admits that the DD for the amount of the cheque was received within the period of limitation. Is the Complainant entitled to claim interest and bank charges as a matter of right and whether non payment of interest and bank charges claimed would amount to non compliance of the Notice sent as per the Act. Plain reading of the section states that only amount of the cheque can be claimed as a matter of right under the Act. Are there any supporting Supreme Court cases on this subject?

Venkat

Reply Follow

6 Replies

(Guest)

If the facts narrated by you are correct the complainant will not succeed. No Supreme Court case is needed for you to succeed. On the facts admitted that DD was paid the magistrate ought to drop the proceedings and acquit you of the charges.

Venkat R Venkitachalam (Consultant) 16 February 2010

Thank you for your prompt reply. We had the same line of thought. Now we are debating whether we face the trial or go to Sessions to get the Magistrate's decision to take cognisance of the offence quashed. Which would be a better option? Thanks in advance.

Venkat

(Guest)

Better move the sessions court for quashing the issue of process. That is the only legal remedy available to you.

Daksh (Student) 24 February 2010

Dear All,

In view of Adalat Prasad's judgement I have my bonafide doubts whether going to session court will be helpful.

Best Regards

Daksh

(Guest)

Daksh - Adalat Prasad deals with the power of the Magistrate to recall his own order for the issuance of process. SC says Magistrate does not have power. Adalat Prasad does not deal with the statutory power of the sessions court to exercise the power of revision. Please therefore stand corrected.

(Guest)

Further Adalat Prasad is with regard to Summons Case. Even in Summons case Adalat Prasad can be bypassed by calling upon the Magistrate by referring to S.258 Cr.P.C. But that section is application only to summons case instituted "otherwise than upon complaint". Since 138 NI cases are instituted upon complaint one cannot take assistance of S.258 Cr.P.c. Therefore the remedy is to move Sessions court in revision.