LCI Learning
LCI Learning

Share on Facebook

Share on Twitter

Share on LinkedIn

Share on Email

Share More

sanjay (victi)     29 September 2012

Nbw in 138 ni

on the 3rd date of case i got nbw in 138 ni act. didnt even get chance to appear .now i am afraid as against party is influential court can send me to jc .kindly help me by your valuable advise. what other options do i have.once nbw cancelled i can appear in court .i may be afraid without any reason but is there any option that without appearing in that court i can get bail?

1.can we file an application u/s70(2) of Cr.P.C. to recall the NBW.

2.petition before High Court under section 482 Cr.P.C. for converting the arrest warrant in to bailable warrant.

As order passed by Delhi High Court in a Case u/s 138 Negotiable Instrument Act where the court held that the presence of the accused at the time of disposal of application is not necessary.



Learning

 10 Replies

YOGESHWAR. (ADVOCATE HIGH COURT-criminal /civil -youract@gmail.com)     29 September 2012

This is a summons case so on normal application for cancellation of NBW will be allowed by the lower court, any Junior advocate wll do it.

The lower court at the most impose some fine.

chanderKant Tyagi (Consultant)     29 September 2012

just move a application for cancelation of NBW and appear in court with a sound surety. Its a bailable offence so no need to wry.

Regards

Chanderkant Tyagi

sanjay (victi)     29 September 2012

is it possible that without appearing personally nbw can be cancelled? if somebody can get order of nbw on 3rd date anything can happen so dont want to take chance.

YOGESHWAR. (ADVOCATE HIGH COURT-criminal /civil -youract@gmail.com)     29 September 2012

yes it is possible but at which city and court your case is located.

sanjay (victi)     29 September 2012

in mumbai.what to do for that?

YOGESHWAR. (ADVOCATE HIGH COURT-criminal /civil -youract@gmail.com)     29 September 2012

Please give details of case that is court, parties, case no and next date than we will suggest you proper course of action.

V R SHROFF (Sr. ADVOCATE Bombay High Court Mob: 9892432152)     30 September 2012

 

138 NI Act  is a Private case, and not a Police case. State is not a Party.

So is not a serious crime & is a  summons case.

 

A simple Application for Cancellation of NBW wth proper Surety will be allowed by the concerned Court. 

The lower court will  impose some small fine,  if there is no justifiable ground. 

 

Court will certainly cancel warrant , especially in initial stage of 138 case, once u appear.This being your 1st appearance.

In case you repeat, court may take stern action, with higher fine amount, and conditions. 

 

I had not heard a single case where in 138 in initial stage Warrant nbw was not cancelled, and / or anybody was sent to jc, on the very first instance of such absence. 

 

Only if a accused repeatedly remains absent, his bail is rejected , on execution of NBW and he is ordered JC. It is rare. 

LAXMINARAYAN - Sr Advocate. ( solve problems in criminal cases. lawproblems@gmail.com)     30 September 2012

First appearance is initial stage , however once the NBW  is cancelled the accused has to appear on every date till case is finalised.

So strategy must be planned from day one how to entangle the complainant which will deffer from case to case.

 

For proper advice please give all the deails of the case by email. since even at the initial stage without appearing the case can be taken upto highest court.

chanderKant Tyagi (Consultant)     30 September 2012

i believe query is solved...

LAXMINARAYAN - Sr Advocate. ( solve problems in criminal cases. lawproblems@gmail.com)     30 September 2012

Far all concerned with NI 138 cheque bounce cases please note that on 26th Sep 2012 the DIVISION BENCH OF SUPREME COURT  has over ruled the earlier decison of validay of second notice.

Now cheque can be presented any number of times during validity and subsquent notices can be issued . Cause of action will be legal even after second notice.

 

Sadanandan Bhadran v. Madhavan Sunil
Kumar (1998) 6 SCC 514 has been over ruled by DIVISION BENCH OF SC.
 

In the result, we overrule the decision in

Sadanandan Bhadran’s case (supra) and hold that

prosecution based upon second or successive dishonour of

the cheque is also permissible so long as the same satisfies

the requirements stipulated in the proviso to Section 138 of

the Negotiable Instruments Act. The reference is answered

accordingly. The appeals shall now be listed before the

regular Bench for hearing and disposal in light of the

observations made above.

………….………………….…..……….J.

(R.M. LODHA)

………….……………………..…….…J.

(T.S. THAKUR)

………….………………….…..……….J.

(ANIL R. DAVE)

New Delhi

September 26, 2012


Leave a reply

Your are not logged in . Please login to post replies

Click here to Login / Register