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S N Thakur (Entrepreneur)     17 September 2013

Remedy for a case u/s 138 N. I. Act. - dismissed for default.

I was in a small business but now more properly a semi-self employed person with very low income. In the year 2005, whatever small capital I had for said business, stuck with a person who is a central Government employee. One friend of mine guaranteed and recommended said person to me and I had shared a considerable high amount to said person in the form of loan.

 

However, he did not refund me the entire loan. The repayment cheques those he had given to me returned unpaid due to insufficient fund in his bank account. Personally, I have taken the same matter with him but he escaped from me in some way or the other. My entire personal endeavour to resolve said issue failed. As such, said business of mine stopped due to lack of fund as the money stuck with the said person. The friend who guaranteed and recommended said person to me later expressed his helplessness in the matter.

 

As such, I have taken the matter legally, filed a case before the Chief Judicial Magistrate, North 24 Parganas in the year of 2006, later, which transferred before 2nd. J.M, and my first appearance date before the said Court was 03rd August, 2006. I have record of the court dates as follows.

.

Date 03-08-2006 The case u/s 138 N. I. Act ordered to transfer from CJM to 2nd JM.
Date 02-09-2006 Case in 2nd JM Court.
Date 11-09-2006 Complainant filed Affidavit in chief, submission considered u/s138 NI. Act.
Date 12-01-2007 Accused did not turn up.
Date 20-01-2007 Complainant taken requisition.
Date 02-04-2007 Bail availed by accused.
Date 26-06-2007 Complainant Present, …
Date 04-10-2009 Accused absent, complainant prayed direction upon police.
Date 10-03-2008 None of the parties present, P.O. on leave.
Date 10-09-2008 P.O. on leave, Complainant present, Accused absent.
Date 17-01-2009 Complainant present, P.O. on duty, 14-4-09 for appearance & plea.
Date 16-04.2009 CR is put up today, as 14-4-09 was a declared holiday.
Date 17-11-2009 Complainant present, Accused absent,
Date 22-03-2010 Complainant present,
                        05-04-2010
Date 09-06-2010 Illegible.
Date 11-10-2010 Illegible.
Date 24-03-2011 Accused absent, does not take any step. No E/R of W/A received. Complaint filed show cause, I/C Barasat PS directed to execute W/A. Copy of order be sent to Addl. S.P. (North), Fixed 12.12.11 for W/A.

Date 12-12-2011 Complainant present, fixed for Copy of order be sent to Addl. S.P. (North), P.O. is on leave on duty, 9-4-12 for E.R of W.A.
Date 09-04-2012 Complainant present,
Date 18-07-2012 Complainant present,
Date 18-07-2012 Complainant present,
Date 14-11-2012 Complainant hazira.
Date 12-03-2013 Complainant absent w/o step.
Date 16-08-2013 Complainant Soumendra Nath Thakur is absent without steps. No E/R of W/A has been  
received. Seen the last order. It appears that the complainant is reluctant to proceed with the case. Hence, it is ordered that the case is dismissed   for default. Recall W/A issued against the accused at once.

 

 
 
A copy of the above order is available here 
(copy & paste in a browser)– 
https://docs.google.com/file/d/0BxyhnxIplCEuTmk4SzFuS3Q1Vjg/edit?usp=sharing 

However, (i) after a long legal battle for more than 7 years before said court (with most of my presence). (ii) Spending a reasonable high amount of money in litigation. (iii) Another sum incurred as cost of loss for my presence before the court, (iv) Running out with money for all of said costs (v) Ruining my business for said stuck of fund. (v) Fighting for a moderate means of livelihood and compelling me to go in another state for my bread and butter, the said order stated my reluctances to proceed with the case and ordered that the case dismissed for default.

 

Specifically, considering my present financial condition, the said order not only compelled me to loose faith in said legal system experienced, but it also puts me in such a situation that challenges my affordability in escalating it to a further litigation.

 

Can anybody suggest me a remedy for this so that I no longer remain fundamentally deprived?

 



Learning

 15 Replies

Rama chary Rachakonda (Secunderabad/Highcourt practice watsapp no.9989324294 )     17 September 2013

Justice delayed is justice denied. You lawyer must have been argue strongly. You can file an appeal to higher courts.

1 Like

Nadeem Qureshi (Advocate/ nadeemqureshi1@gmail.com)     17 September 2013

Dear Querist

you should file a revision before session court under section 397/399 of Cr.PC

1 Like

Advocate Bhartesh goyal (advocate)     17 September 2013

File revision petition against the order of dismissal before session judge.

1 Like

Sarvesh Kumar Sharma Advocate (Advocacy)     17 September 2013

482 cr.p.c. is also a batter remedy !

1 Like

BHARTI KOTHARI (practising advocate)     18 September 2013

First of all it seems that though you are regular andd vigilant but it seems that your advocate was not much keen. Just your presence is not required but you           too have to take next step and probably for this reason once when you were present the same get dimiised for default. now the remedy is to either file revision application befoire session court u/s 397 or to file petition u/s 482 in high court. but I will advice to go for revesion. you could also have filled cheating case u/s 420 read with 406 of IPC. Please better to think to engage some good professional practising in the concerned court as it will increase your chance of sucess. please note that I find no reason for you get annnoyed with the judiciary. thank you. best of luck. my cell No.9322523623 for any furhter query.  

1 Like

T. Kalaiselvan, Advocate (Advocate)     18 September 2013

Your case stands a chance in appeal only.  You prefer an appeal before high court with documentary evidences namely a certified copy of the notes paper of your file in the lower court, advance a stronger ground in the memorandum of appeal, put forth before the high court all those essential things which have not been considered by the lower court, wait for the high court's decision, I am sure that you stand a chance to win your case.   

1 Like

Divya (nil)     18 September 2013

u need to file a revision petition only before sessions court...u cant jump hierarchy & approach hc....

 

its clear ur advocate is not excited to get u any justice...it cant take 7 yrs for a cheque bounce & no steps against the accused.....

 

hunt for an aggressive & truthful advocate.

1 Like

LAXMINARAYAN - Sr Advocate. ( solve problems in criminal cases. lawproblems@gmail.com)     18 September 2013

Dismissal in default amounts to acquittal and so you have to go to HC , no other remedy.

1 Like

madhu mittal (director)     20 September 2013

Respected sir,

please go through this citation, it may help you:

Mohd. Azeem vs. A. Venkatesh and Anr. (16.08.2002 - SC)
MANUiSCi1O12i2002
Eq Cit: (2002)7SCC726
IN THE SUPREME COURT OF INDIA
Criminal Appeal No. ... of 2002 Arising out of SLP (Cr!.) No. 1078 of 2002
Decided On: 16.08.2002
Appellants: Mohd. Azeern
Vs.
Respondent: A. Venkatesh and Am.
4. In our opinion, the learned Magistrate and the High Court have adopted a very strict and unjust attitude resulting in failure of justice. In our opinion, the learned Magistrate committed an error in acquitting the accused only for absence of the complainant on one day and refusing to restore the complaint when sufficient cause for the absence was shown by the complainant.

1 Like

S N Thakur (Entrepreneur)     20 September 2013

@ madhu mittal

Dear Sir,

I thank you for sending me the citation concerned. I am delighted to let you know that I am having the complete Hon'ble SC Judgement about the case "Mohd. Azeem vs. A. Venkatesh and Anr." with me now and I shall refer the same to my lawyer engaged next time I visit him.

I believe the SC Judgement said might influence Ld. Sessions Court after filling concerned revision petition before same court.

I thank you again for enlightening me in my endeavour to get justice.

Regards,

S N Thakur

S N Thakur (Entrepreneur)     22 September 2013

Dear Sirs,

In regard to the above post, I have taken the matter further, based on your kind advises,

I have written following letter intending to submit before my Ld. Advocate. I shall appreciate it if you feel commenting on the same

The URL is: https://www.lawyersclubindia.com/forum/Reasons-sufficient-restoration-of-a-case-u-s-138-n-i-act--89023.asp

MARU ADVOCATE (simple solutions for criminal legal problems -- yourpunch@gmail.com)     22 September 2013

Well Mr Madhu Mittal is doing nice compared to many many others .

 

However you have to still to hard work to get your case to restored to file in your advocate.
 

2 Like

madhu mittal (director)     22 September 2013

Respected Sirs,

I express gratitude for appreciation. 

1 Like

Narendra Malik (advocate)     29 September 2013

File petition in the High Court u/S 482 of CrPC to get relief.


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