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notice in 138 case

Page no : 2

DEFENSE ADVOCATE.-firmaction@g (POWER OF DEFENSE IS IMMENSE )     10 September 2010

Yes the citation is excellant, we even otherwise ask in the cross that what is the evidence that the address of the accused is correct. This citation will help. Thanks.

Goutam (Student)     10 October 2010

It is effective.

Sarvesh Kumar Sharma Advocate (Advocacy)     10 October 2010

jee haan It is effective.

madhu mittal (director)     11 October 2010

ADESH JI and others, THANKS FOR YOUR VALUABLE advices. Now there is also one more question, I want to know opinion from all of you, There is an endorsement on envolp "refused to receive" and when summon is delivered to accused, he deposited with complainant the face value of cheque whithin the 15 days of receipt of summon from the court. The case is not of a cheque but 5 cheques of different dated clubbed in one case.Whether the offence is complete or the accused should be set free because he claims that he did not get notice and deposited the amount within 15 days of receipt of summon from the court. One more question What is the meaning of "Claim" as writeen in point 17 of c.c. alvi case, whether the accused has to prove something or only to simplity asserts that he had paid the amount. I am asking this because practically in our couts it is about more than one year from the date of cheque dishonoured and summon served on accused.

madhu mittal (director)     12 October 2010

please read "whether the accused has to prove something or only to simply asserts that he had not got notice only" in stead of  " whether the accused has to prove something or only to simplity asserts that he had paid the amount". please advice.

Adesh Kumar Sharma (Senior Associate Lawyer)     20 October 2010

Dear Ms. Mittal,

you did not disclose that he made entire payment i.e. against all the five cheques or for one cheque only. If he has deposited against all the five cheques then he can take benifit of the judgment of C.C. Alavi Hazi, but if he made payment against only one cheque then his case is not supported by the said judgment. 

Now come up to you other question if he takes that no notice was ever served upon him, so it is upto him to prove that there was no effective service of notice. You just check one thing that the address mentioned in the Legal Demand notice, Complaint and where upon the summons from the court are served are the same or not. If all three address are same then this defence  is not sustainable. One more thing if he has been admitted to bail by the court then he must hav mentioned address in Bail Bond. You check this also, whether it is same or not. 

As you asked that what is the meaning of the word claim mentioned in Para 17 of judgment, its simple to understand that  the accused has been given benifit that if he could not make payment within 15 days of delivery of legal demand notice, he can do so within 15 days from the service of summons by the court.  Claim means he can take this plea that the legal demand notice was not served upon him therefore he could not make payment but he has done the same within 15 days of service of summons frm the court.

Dear Ms. Mittal, he has to prove nothing if he has made entire payment in question within 15 days frm the service of summons.

There is a change in law regarding section 138 of NI Act recently, after the judgment of supreme court in "Damodar S. Prabhu Vs. Sayad Babalal H" cited as AIR 2010 SC 1907. As per the guidelines framed by the Supreme Court the accused make an application on the day of first appearance to compound the offence as matter of right, wherein the just need to pay cheque amount and the court may compound the offence. You go through the judgment and you wil find that this is one step ahead of C.C. Alavi Hazi's judgment.

Thanks


Attached File : 50 50 sc judgment daodar s prabhu.doc downloaded: 76 times

madhu mittal (director)     21 October 2010

Aadesh ji, in Damodar S. Prabh decision in para 2 “……by relying on the consent terms that have been arrived at between the parties. The respondent has not opposed this plea and, therefore, we allow the compounding of the offence” written, while under guidelines para 1(a) (a) “That directions can be given that the Writ of Summons be suitably modified making it clear to the accused that he could make an application for compounding of the offences at the first or second hearing of the case and that if such an application is made, compounding may be allowed by the court without imposing any costs on the accused.” Whether both paras are not controversial in themselves in the decision itself. Another decision of three judge bench of hon.Supreme court The Assistant Commissioner, Assessment-II, Bangalore and Ors. vs. Velliappa Textiles Ltd. and Ors. Decided On: 16.09.2003 ( MANU/SC/0721/2003) 46….It is difficult to agree with the reasoning of the High Court. If some one has committed an offence, he must be prosecuted and if found guilty, must be punished in accordance with law. Compounding of an offence is not a right of the accused nor it is his unilateral act. It can only be done with consent of the authorities enumerated in the provision. No additional right can be created in favour of an accused to enable him to save himself from the "disgrace and ignominy of the prosecution". Another citation u/s 138 Vishnu Bhat vs. Narayan R. Bandekar, Managing Director, Rajaram Bandekar (Sirigao) Mines Pvt. Ltd., (25.10.2007 - BOMHC) (MANU/MH/0936/2007) have a look at para 15,23,24,25 held “15. Referring to Rajneesh Aggarwal v. Amit J. Bhalla MANU/SC/1462/2001, it was stated that so far as the criminal complaint is concerned, once the offence is committed, any payment made subsequent thereof, will not absolve the accused of the liability of the criminal offence ... 23. It is not necessary to get into all that is stated in the said application filed by the accused today except to say that the Complainant is not willing Page 2620 to compound the offence and he cannot be forced to enter into a compromise. 24. The expression Compounding in terms of Black's Law Dictionary means to compromise; to effect a composition with a creditor; to obtain discharge from a debt by the payment of a smaller sum. To put together as elements, ingredients, or parts, to form a whole; to combine, to unite. To form or make up as a composite product by combining different elements, ingredients, or parts, as to combine a medicine. The expression Compounding crime is also defined in the same dictionary and it states that Compounding crime consists of the receipt of some property or other consideration in return for an agreement not to prosecute or inform on one who has committed a crime. There are three elements to this offence at common law, and under the typical compounding statute: (1) the agreement not to prosecute; (2) knowledge of the actual commission of a crime; and (3) the receipt of some consideration. 25. Compounding essentially involves a compromise or agreement and there cannot be a one way traffic whilst entering into a compromise and that would be both for the purpose of Section 147 of the Act as well as Section 320 of the Code. If the Complainant is not willing to accept a compromise, the same cannot be imposed upon him by the Court and the matter will have to be dealt with in accordance with law. Application filed by the accused, therefore needs to be rejected. Now let me know your opinion about compounding whether it can be unilateral means without the consent of victim. In another word whether still the meaning is that the accused has a matter of right to get compounded its offence of dishonouring of cheques.


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