Firstly a letter is sent to the drawer to make payment otherwise proceedings shall be initiated. The essentials that form offence under Section 138 of the NI Act cannot be bypassed to initiate prosecution. Hence there is no question of sec. If the drawer is an individual, the proceedings would happen under Section 138 of the NI Act. Bail Format India Under Section 437 | Download PDF. PETITION UNDER SECTION 138 NEGOTIABLE INSTRUMENTS ACT, 1881. Mr. X Filled CRA in ADJ Court. The Negotiable Instruments (Amendment) Act, 2018 (Amendment) received the assent of the President on 2nd August 2018. Format of Criminal Complaint u/s 138 of Negotiable Instruments Act against return of cheque. application for early hearing of the case. Contact info. III (i) When the respondent first enters appearance in a complaint under Section 138 of the NI Act, before proceeding further with the case, the Magistrate may proceed to record admission and denial of documents in accordance with Section 294 of the Cr.P.C., and if satisfied, at any stage before the complaint is taken up for hearing, there . How to safe from order of session court. A Complaint under Section 138 of the NI Act was filed and cognizance was taken by the Chief Judicial Magistrate, Birbhum at Suri, West Bengal for the dishonour of a number of cheques issued by the accused-company which had its headquarters in Ernakulam, Kerala where significantly the accused-company's bank on whom the dishonoured cheques had . Now, in case a lawsuit against the drawer is filed for cheating under Section- 420 of the IPC, the court can issue a non- bailable warrant against . In this case, a set of cheques were dishonoured, leading to filing of the first complaint under Section 138 of the NI Act. The Madras High Court recently highlighted that a court cannot pass an order directing a person accused of an offence under the Negotiable Instruments Act, 1888 to pay interim compensation to the complainant unless it is supported by reasons. The respondent then filed a case against the appellants under Section 138 of the NI Act. Regular bail Application before Court of Sessions Court u/s 439 CrPC. Esquivel vs Ombudsman. lost a case in MM court. 8. 1,15,000/- (Rupees One Lakh Fifteen Thousand Only), together with interest at the rate of 18% . Dishonour of a cheque is a criminal offence under Section 138 of the Negotiable Instruments Act, 1881, subject to certain conditions being fulfilled. Compensation to be recoverable as fine Section 431 of CrPC provides that any money other than a fine, method of recovery of which is not expressly provided, ordered by the court under code of criminal procedure, shall be recoverable as fine. Sometimes a prompt settlement is done on the letter. The ingredients of the offence under Section 138 are: (a) cheque is drawn by the accused on an account maintained by him with a banker; P.S. 7. Stages of the EIA Process/Procedure for ECC Application 67 4. The bail format India under Section 438 of the Code of Criminal Procedure is to be signed by the accused or the applicant of the bail. 3. 6.That the cheque in question were returned unpaid because the amount standing to the credit in the Accused's account was insufficient to honour the cheque in question and as such the Accused is liable to be prosecuted and punished under Section 138 of the Negotiable Instruments Act, 1881 as amended upto date. Also, it is a bailable offence. For 420 you have to get an FIR registered under 154 Cr.P.C if police refuses to register FIR then you can file complaint under section 200 read with section 156(3). Jan 16, 2015. Draft format for filing criminal complaint under section 138 of Negotiable Instruments Act is given below to get idea to prepare the complaint. 138 being a . It is accordingly submitted that the prayer on the basis of Section 436-A IPC is purely speculative. If you are very much aware about the matter or the Court proceedings against you then I would suggest you to file the anticipatory bail in the court and join the proceedings. Boracay Foundation vs Aklan, GR No. The Sec 143 A & 148 which have been now inserted in the NI acts is in addition to Section 138 of NI acts which is dealing in cheque bounce cases. under Section 138 of the Negotiable Instruments Act (for short, 'the N.I. According to section 5 of the Negotiable Instruments Act "Bill of exchange".— A "bill of exchange" is an instrument in writing containing an unconditional order, signed by the maker, directing a certain person to pay a certain sum of money only to, or to the order of, a certain person or to the bearer of the . "The act was enacted and section 138 thereof incorporated with a specified object of making a special provision by incorporating a strict liability so far as the cheque, a negotiable instrument, is concerned." Essentials of the section. A vast number of new advocates take up S.138 NI cases as their first cases. (False,Fabricated & Harrassment Case) Mr.X is the Defendant. An offence under Section 138 of the Negotiable Instruments Act, 1881 is committed when a cheque drawn by the accused on an account being maintained by him in a bank for discharge of debt/liability is returned unpaid for insufficiency of funds or for the reason that the . 2. Dear Sir/Madam, Under instructions and authority from my client M/s. vehicle application consumer protection act. 11 For the aforesaid reasons, petition is allowed. Sample Cheque Bounce Notice Format. Act, a minimum of 20% of the fine or compensation awarded by the trial court is directed to be deposited, said SC. It is accordingly submitted that the prayer on the basis of Section 436-A IPC is purely speculative. seeking to suspend the sentence and a bail application to enlarge him on bail till the disposal of the appeal by the appellate court. Regular Bail - it is generally granted to a person who has been arrested or is in police custody. A major share of all pending criminal cases in India is comprised of these cheque bounce cases. The purpose of any proceeding, initiated u/s Section 138 of the NI Act, 1881, is that the cheques should not be used by people as a tool of dishonesty. Name of the party/parties. Please treat this as a Statutory Notice U/s. An affidavit in support of the bail format India is also to be filed along with the main application. In October 2018, the Judicial Magistrate at Panchkula held the appellants guilty and imposed a sentence of imprisonment for two years as well as a fine equal to the amount in case, in addition to 1% of the amount towards litigation expenses. The learned Magistrate therefore concluded that if a cheque is issued towards repayment of a time barred debt and it was dishonoured the accused could not be convicted under Section 138 of the Act. application for inspection of the case file. (6) The amount of fine imposed under section 138 or the amount of compensation awarded under section 357 of the Code of Criminal Procedure, 1973, shall be reduced by the amount paid or recovered as interim compensation under this section.''. Section-138 NI Act: No separate application for condonation of delay: Apex Court accepted condonation of delay in filing of case where reasons were mentioned in complaint itself [Read the Order] Supreme Court has allowed a complaint for cheque bounce to continue where the case was filed beyond limitation period but sufficient reasons for delay . Mr. S.N. The 213th Law Commission Report [1] and various newspaper reports there are about 38 to 40 lakhs of bounced cheques cases in India that is stagnating the Indian . CrPC Chapter XXIX; S. 389 Suspension of sentence pending the appeal; release of appellant on bail: Description; Pending any appeal by a convicted person, the Appellate Court may, for reasons to be recorded by it in writing, order that the execution of the sentence or order appealed against be suspended and, also, if he is in confinement, that he be released on bail, or on his own bond. The learned Revisional Court did not address to this question properly before rejecting revision application. The penal provisions in Sections 138 to 142 of the Act ensure that obligations in the form of late payments are fulfilled by the issuance of checks. ADJ Sent him to Jail. Hi. It was contended by petitioner that Section 138 of Negotiable Instruments Act and Sections 420, 406 of IPC are mutually exclusive thus if the complaint has been filed under Section 138 then FIR under Sections 420 and 406 of Penal Code cannot be lodged for the same cause of action and hence liable to be quashed. 6. The offence of cheque bounce under Section 138 of the Negotiable Instruments Act is a bailable offence, where getting bail is a sort of right. However, you may appear in person and request the court to adjourn the case for further proceeding on first date . Without prejudice, my client shall also be entitled to adopt civil proceedings against you for recovery of the said amount of Rs. The best choice is to obtain an anticipatory bail under Section 438 of Criminal Procedural Code, 1973. Mr. Pahwa points out that the application moved before the learned MM in fact sought clubbing of the criminal case with the complaint under Section 138 NI Act since it was between the same parties. Bail related under section 138 0f ni act. 8. Got time of 1 month (Same time & from same court) to get bail & released from the same Court. Complaints Under Section 138, N.I. The purpose of any proceeding, initiated u/s Section 138 of the NI Act, 1881, is that the cheques should not be used by people as a tool of dishonesty. Cheque Bounce: New provisions Sec 143 A & 148 inserted under NI Acts. Judgement on Mediation in Cheque Bounce Cases Under Section 138 NI Act. The Accused No.2 on his behalf and on behalf of Accused No. Admittedly, the said conclusion was arrived at in the light of the explanation to Section 138 of the Act. Act, 1881 deals with Dishonor of Cheque. Act') and thereby confirming the judgment and order of acquittal passed by the Learned Trial Court, the original complainant has preferred the present appeal. ______ we serve upon you the following legal notice. Party by filing a complaint under section 138 also. Facts, in brief, are:- The petitioner is the accused and the respondent is the complainant in C.C.No.241 of 2007 on the file of III Metropolitan Magistrate, Cyberabad, 1 Humbly submits as follows: 1. In order to understand this limb, a few basics about Section 138 of the Act. Address. BAIL APPLICATION FORMAT IN GUJARATI LANGUAGE UNDER SECTION 439 OF CODE OF CRIMINAL PROCEDURE. Any offence against Cheque, as specified under section 138 of Negotiable Instrument Act, is a Criminal Offence and thus the proceedings against such Cheque is dealt in accordance with the Summary Trial provisions of Code of Criminal Procedure, 1973 (CrPC). Appearance without an advocate in a criminal proceeding is not at all a good idea. Such an order is to be passed on an application made by the accused or under section 145(2) of N.I. Act, for short). APPLICATION FOR GRANT OF BAIL UNDER SECTION 437 OF CR.P.C. Answer (1 of 7): Assuming that your question is about dishonor of cheque under the Negotiable Instruments Act, it must be noted that the Act provides for making a complaint with the Court and no FIR or police complaint can be made in such situation. 138, N.I.Act. Section 138 is blocking businesses and investments; Section 138's contribution to huge pendency in courts which has negatively impacted court processes. That in the above case, the applicant-accused is in judicial custody. —Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt . View More Legal Formats. Through this write up, a statutory and judicial light is focused on the different aspects of procedure and provisions set up in cases related to Dishonour of Cheques as enshrined in Chapter XVII decoding form Section 138 to Section 148 of The Negotiable Instruments Act, 1881. Regular Bail Application Format in Gujarati. Cheque Bounce Case: As per the amended Section 148 of the N.I. Section 138 in The Negotiable Instruments Act, 1881. Bail Format under section 438 | Download PDF and Docs. Download in Microsoft word format. Yes, on the first date you have to apply for bail. Cheque bounce is a condition which arises due to the non-payment of the amount because of the lack of balance in the account. The Complainant had filed a private complaint against this Accused for the alleged offences punishable under section 138 of Negotiable Instruments Act. As per the provisions of Section 436 of the Criminal Procedure Code, which deals with bailable offences, the court has the power to release the accused in such cases even on his personal bond without . Section 138-142 of the Negotiable Instruments (NI) Act, 1881, deals with an aspect of dishonour of cheques in cases where there is a shortage or insufficient funds in a drawers account. The following conditions should be satisfied for an act to fall under the purview of section 138- A bail application can be filed for the regular bail under section 437 and 439 of Cr.PC. Answer (1 of 6): Usually under S138 NI act, if parties have settled the matter,then case will be mandatorily closed as case disposed - compromised. That the accused above named was arrested by the police on _____, 20XX and is in judicial custody since then. To, Date: __/__/2019. e-Court fee Receipt Application Form : ecourtfee.pdf: 3 : PROCESS FEE FORM : process fee form.pdf: 4 . Fines, Penalties and . You can pressirise the opp. That the above titled criminal case is pending in Hon'ble ACJM Court and is fixed for 23.11.2013. Section 138 of Negotiable Instruments Act explained in details with case law for better understanding of a common man. Cheque Bounce is governed under section 138 of the Negotiable Instrument Act. CHECK LIST 138 NI ACT MATTERS : Check List 138 NI Act Matters_1.pdf: 14 : FORM NO.45 BAIL BOND : Form45Bail Bond_0.pdf: 15 : CHECK LIST . Sub: Legal notice under section 138 of Negotiable Instrument Act for dishonour of cheque. Section 138 of the Act sets out the conditions under which a cheque case is filed. The grounds for refusal are set out in Section 2 of the Bail Act, 1997 . . As per the Criminal Law (Amendment) Act, 2018, Section 439 of the Criminal Procedure Code, 1973 was amended with effect from 21st April 2020 by which it was made mandatory for the informant or any other person authorized by the informant to be present at the time of hearing of an application for bail filed by the accused under these provisions. 11. Limitation period is the time within which you need to file a complaint case, failing which the right to seek that remedy lapses. Every year, millions of cheque dishonour or cheque bouncing cases are registered in India. How to get bail from session and high court of panjab. 18 [ 138 Dishonour of cheque for insufficiency, etc., of funds in the account. 23 The question before this Court is whether parallel prosecutions arising from a single transaction under Section 138 of the NI Act can be sustained. Bail Roster of Judicial Officers of South District for January 2022. Date of Surrender/Arrest : 11/10/2013. This ruling was passed in an appeal challenging an order passed by First Class Magistrate Court wherein a man accused of an offense punishable u/s 138 case . 2. Hence everyone who wants to adduce electronic evidence and where there is no possibilities that the original device can be brought before the Court, Certificate under section 65B is a mandatory one. Nabha, District Patiala. After referring the objects of Section 138 of NI Act, Section 262- 265 of CrPC and its past judgments in Mandvi Cooperative Bank Limited v. Nimesh B. Thakore (2010) 3 SCC 83, and Radhey Shyam Garg v. Naresh KumarGupta (2009) 13 SCC 201 on interpretation of Section 145 of NI, Act, it has drawn the following conclusions at Para 16 of the judgment: a. Application for anticipatory bail under Section 438 CrPC. In the principal Act, after section 147, the following section shall be inserted, namely . Got Dismissed. Let's examine each: Does Section 138 pose a threat to businesses and investments? 1. Editor's Note: This blog has been written with the intention to help young advocates make informed decisions while preparing and filing a case u/s 138 NI Act, 1881.We have made every attempt to make it as comprehensive as possible. File an appeal against the lower court judgment and along with it you may file a petition under section 389 cr,p.c. Application seeking Anticipatory Bail Under Section 438 CrPC . a demand notice, became punishable under Section 138 NI Act with imprisonment for a period upto two years and/or fine which may extend to twice the amount of cheque. Justice Gopinath VP allowed the appeal and observed that the term M/s, short form of Messrs, was a salutation that refers to unincorporated persons like a partnership, and the absence of such a salutation can't be a ground for acquittal.. However if accused has been issued proclamation but not declared PO then once case is disposed, the proclamation disappears without the accused need. Bail Application Format in Gujarati. Section 65A of Indian Evidence Act says : "The contents of electronic records may be proved in accordance with the provisions of section 65B.". Section 138 of Negotiable Instruments Act is an important provision pertaining to the matter of cheque bouncing. Interim bail - this type of bail is granted for a short period of time and it is granted before the hearing for the grant of regular bail or anticipatory bail. application for divorce petition. Either you can go under 138 or 420 you can not invoke both at the same time. Section 138 finds its mention in the Chapter XVII of the NI Act which deals with "Penalties in Case of Dishonour of Certain Cheques for Insufficiency of Funds in the Accounts". The court can refuse the application if it is considered necessary in order to prevent the person from committing a serious offence while they are on bail. The components required to comply with Section 138 of NI Act are as follows: The only requirement for getting the default bail/statutory bail under Section 167(2), Cr.P.C. The parties thereafter entered into a deed of compromise to settle the . It is therefore, call upon you through this notice to pay . Directly without giving him time to get the bail or to file a CRR in High Court. Act suo moto by the Court. CHECK LIST 138 NI ACT MATTERS : Check List 138 NI Act Matters.pdf: 14 . Section 138 finds its mention in the Chapter XVII of the NI Act which deals with "Penalties in Case of Dishonour of Certain Cheques for Insufficiency of Funds in the Accounts". Bail 143 3. e-filing for the cases under Commercial Courts Act is available from 01-03-2020; Section 138 OF N.I. Liability under Section 138 of the Negotiable Instruments Act (NI Act), which fastens criminal liability in cheque bounce cases -Supreme Court Read Judgment Section 139 of the NI Act raises a presumption, unless the contrary is proved, that the holder of a cheque receives the cheque of the nature referred to in Section 138 for the discharge of . ESIA.pdf. Those cheques were dishonoured on presentation due to funds being insufficient and the petitioner/plaintiff filed a criminal case under Section 138 of the Negotiable Instruments Act, 1881 (N.I. Sec. If an application for bail is made by someone charged with a serious offence, the court can refuse the application. Sir, The applicant-accused respectfully submits as under: -. Act as . criminal appeal transfer application. 138 of the negotiable instrument Act., 1881 and to pay the amount within the period of 15 days from the receipt of this notice failing which you shall become liable to be prosecuted under the penal provision of the said section. Section 138 NI Act: Cheque Not Valid If Amount Written Is Uncertain. Application for Bail U/S 439 CrPC. Thank You. A readable copy of the FIR is also to be filed along with the bail format India. S.Prabhu v. Sayed Babalal H.1 to compound the offence punishable under Section 138 of the Negotiable Instruments Act, 1881, (for short, 'the N.I.Act'). Application seeking exemption from personal apperance of Complainant/Accused. Therefore, in all cases under Sec.138 of the Negotiable Instruments Act, though it is possible or there is no legal infirmity for the Magistrate to issue a non-bailable warrant for the reasons to be recorded in writing, yet, considering the bailable nature of the offence, under Section 138 of the Negotiable Instruments Act the Magistrate shall . Act : Practice and Procedure. Section 138 of the Act can be said to be falling either in the acts which are not criminal in real sense, but are acts which in public interest are prohibited under the penalty or those where although the proceeding may be in criminal form, they are really only a summary mode of enforcing a civil right. application for permission to open the premises after breaking the lock. application for list of witness which the applicant wants to examine . The section reads as under: 138. 10 In view of the facts and circumstances, I find that no case to issue process under Section 138 was made out and, therefore, process issued by the trial Court is liable to be quashed. Bhat, learned counsel appearing on behalf of the respondent, on the other hand, submitted that the appellant has rightly been found guilty of commission of an offence under Section 138 of the Act as bouncing of the cheque issued by him carries a mandatory presumption in terms of Section 139 read with Section 118 (a) of the Act. Bail under Section 420. Mr. Pahwa points out that the application moved before the learned MM in fact sought clubbing of the criminal case with the complaint under Section 138 NI Act since it was between the same parties. Further, the Hon'ble Supreme Court in N. Harihara Krishnan v. J. Thomas 9 , has held that in the context of prosecution under Section 138 NI Act, the concept of taking cognizance of the offence but . After discussing the nature of the offence of "dishonoured cheques" and the differences between a summary trial and a summon trial, the Court laid down the procedure to be followed for offences u/s 138 N.I. The further case of the petitioner/plaintiff is that six cheques were issued by Shri Hari Om Anand after deducting TDS. Bail Application Format Under Section 439 with PDF. I agree with the expert advise of Mr. Devajyoti Barman. Divorce Petition form by a wife on the grounds of cruelty. 2. That you are required to take a notice of demand under sec. Regular Bail Application before Court of Metropolitan Magistrate u/s 437CrPC. Clearly, the prosecution of other persons 8 under Section 138 NI Act is permissible only when the Company is named as an accused in the complaint. APPLICATION UNDER SECTION 436 OF CRIMINAL PROCEDURE CODE. Under 138 NI Act you will be granted anticipatory bail and can join the court proceedings and contest the matter. The accused above named most respectfully showeth :- 1. For the recovery of the amount, prompt action must be taken. Through this Judgment, SC provides relief to the holder of a bounced cheque, due to insufficient funds in the payer's account… If the drawer is a Company, its managing director, Whole Time Director and other officers/Directors of the Company who are actively involved in the transaction, pursuant to which cheque is issued, can be personally prosecuted under Section 141 of the . Cases. An offence committed under Section 138 is a non-cognizable offence (a case in which a police officer cannot arrest the accused without an arrest warrant). is that the accused is in jail for more than 60 or 90 days, as the case may be, and within 60 or 90 . Interim Compensation under Section 143A of Negotiable Instruments Act, What Madras HC held. Under the provisions of Clause (c) of Section 138 of the Act, the cause of action for such-like complaint arises on the failure of the drawer "to make payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within 15 days of the receipt of the said notice" given under Clause (b) thereof, and not before that. Regular bail can also be preferred in case the Anticipatory bail is not functional. Supreme Court has delivered a landmark Judgment by changing the basic criteria under Section 138 of Negotiable Instruments Act and marked the offence under this act as person specific. Under Negotiable Instruments Act the limitation period is 30 days from the expiry of the notice period. 196870. Arraignment . First, to file a lawsuit under Section- 138 (cheque bounce) of the Negotiable Instruments Act, 1881 or second, a lawsuit under Section- 420 (cheating and dishonesty) of the Indian Penal Code, 1860. 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