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BANKIMCHANDRA SHAH ADVOCATE & NOTARY (SENIOR ADVOCATE NOTARY & LEGAL CONSULTANT HIGHLY EXPERIENCED PROFESSIONALLY EXPERT LAWYER GUJARAT HIGH COURT SURAT INDIA)     04 July 2017

Plead guilty in cheque return case after 18 years

18 years old matter cross examination incomplete of the complainant. Accused a company, it's directors after 18 iyears plead guilty. Court wants to be liberal towards the accused. There are similar other cases pending in other courts I have objected for being liberal as the question is about interest and cost. What can be done. Cheque amount deposited in court as I denied to withdraw the case on receipt of the cheque amount only. Complainant is a government undertaking corporation. I want citations on urgent basis for interest, compensation and conviction with penalty in such cases. Please help urgently. Thanks Regards Bankimchandra Shah Advocate, Surat. Mobile 09426101233.


 14 Replies

Ms.Usha Kapoor (CEO)     04 July 2017

Sorry, I couldn't find any citations. But in  the normal course of things pleading guilty by the accused so belatedly and after 18 years of cheque bounce  the complainant is entitiled to claim compensation, Interest and penalty. If you lost the case in trial court file appeal in Highcourt against the trial court  Judgement and decree. You may get the required relief of compensation, penalty and interest and not mererely the  cheque amount from the accused.

Vinod shah (legal assistance for victims of system. findjobs02@gmail.com)     04 July 2017

What a contrast that an highly expereinced advocate getting advice form a non legal person.

Comming to your problem since you say that you are HIGH COURT advocate so you must be knowing that going to HIGH COURT is not that easy as NON ADVOCATES SUGGEST.

 

Siddharth Dev (Advocate)     04 July 2017

you go for sentence and fine enhancement and you appeal will be maintainable before Session Court instead of High Court because you are not going against acquittal.

regards,
advocate Siddharth Delhi

Siddharth Dev (Advocate)     04 July 2017

you may also file suit for recovery under order 37 CPC

Siddharth Dev (Advocate)     04 July 2017

most importantly I would like to tell you recovery suit is separate suit meaning thereby you will get payment twice one from 138 n i act and second from order 37 you are most welcome to discuss with me at my email address defencelawyer19@outlook.com

R Trivedi (advocate.dma@gmail.com)     07 July 2017

Siddhartha Dev, Pl do not write such things that you can get twice the amount once in 37 and once under NI 138. Request pl read order 37 CPC and let us know if it is maintainable in this case.

R Trivedi (advocate.dma@gmail.com)     07 July 2017

Bankimchandra shah, Punishment that is both sentencing (upto 2 years) and compensation (twice the amount) is court discretion. No citation can force the magistrate, 18 years is judicial problem not of accused. In fact the accussed should not have pleaded guilty, it could have sought compounding, no conviction also. There is a order by SC (CJI Balkrishna bench) which clarifies this compounding business, order is law but quite a thoughtless order.

Siddharth Dev (Advocate)     07 July 2017

suit under section order 37 amounts to suit for recovery and offence under section 138 n i act is an offence in which the amount received will be treated as fine

Siddharth Dev (Advocate)     07 July 2017

both cases are maintainable

Siddharth Dev (Advocate)     07 July 2017

well as 18 years has been lapsed but the case was under trial that's why limitation will not apply

R Trivedi (advocate.dma@gmail.com)     08 July 2017

Sidhartha Dev....Some inaccuracy so I must put the things in correct perspective.. 1. Yes, both the cases are maintainable. 2. Criminal trial under S.138 does not bar the limitation for civil case, so civil case is time barred now after 18 years. 3. In general order 37 being summary in nature gets decided fast, so once the drawer pays money, he can always seek compounding at criminal court. 4. In my knowledge I have never seen a person paying money under order XXXVII and paying fine of same amount under S.138, it just never happens. If you know any such case, pl cite.

Siddharth Dev (Advocate)     08 July 2017

thank you Mr Trivedi where I was expecting such type of questions from advocate Bankim Chandra who have put this question before this form where it is not the proper place to discuss technicality is which may come in this case at this stage but I would like to tell you that there we can establish if the facts are available why we could not apply under order 37 on the basis of that we may stablish why we could not apply within limitation under order 37 well thank you once again

R Trivedi (advocate.dma@gmail.com)     13 July 2017

Thats right, one can seek condonation of delay with reasons, but getting this relief from court for 18 years delay......nope unless the victim has gone into coma.

Siddharth Dev (Advocate)     13 July 2017

but I was thinking for exempted period

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