A strange case of 138 N.I.
i have a section under sec 138 Ni act in process in the JMFC, this case has been filled in the year 2008 and still the entire cross examination procedure is also not completed.
During the dependency of the matter the accused had approached me for a compromise and he drafted out a MOU, where he stated that my claims of Rs. 23,20,000 /- are correct and he agrees to pay me back in installment, the stamp paper has been bought by him, the same document has been notorized by him. He did not honor the same and also has not paid a single rupee till date.
the document i had provided before the court, the court again had asked him his intention.
He said he wanted to compromise and wrote a application in the court to allot him time for making the payment to me and he also issued 2 cheques and handed them over to me in court. 1 cheques was for rs. 10 lacs and the other was for Rs. 13.2 lacs.
The very first cheque had bounced and returned for insufficient funds.
i had brought it to the notice of the court on the next date, and the judge was furious and asked him in court that he will be penalized for it, but that day he told the court that it had happened by mistake and he will go and get a draft for the same immediately. He left the court room and never returned, the judge made me call him several times but he did not answer. This all has happened orally and i do not think the court had made any remarks in writing in court.
Now the irony of the matter is that by the next date the current judge got transferred and a new judge had come. The accused has been since then just putting different applications challenging the first cheque which was issued 7 years back, and on the basis of which i had filled the case. The current judge is completely ignoring the facts even after me telling him to take action on the basis of the evidence before him, but he has failed to do so.
1) what can i do in a situation like this, i cannot even go and appeal in any other court, because on what basis will i go and appeal
2) i would like to file a case of 420 against the accused on the basis of the MOU and cheques issued in court, will the same stand and be a good case to fight ?? i did not file another 138 case on the bounced cheques as i would have to pay a big stamp duty.
Asked in Criminal Law from Pune, Maharashtra
1. This is your just bad luck,
2. However, you now have no way other than filing an application before the current judge for expediting the matter since it has been too much delayed,
3. You ceretainly can file a cheating case for his not complying with the terms mentioned in the MOU signed by him.
1) The case should not have dragged on for so long in the usual course of time. It is but unfortunate that the judge was transferred and that nothing was reduced to writing as you said.
2) You need to certainly persuade the court to dispose of the matter expeditiously.Move an application in this regard.
3) With the MOU signed by the accused you can certainly file a case of cheating u/s 420.You have a good case.
Asking the trial court to expedite the case would be of no help.
File an application u/s 482 r/w 401 of croc in the high court for direction on the lower court for disposing of it within a particular time.
1. The cheque which he had issued during the pendency of the case and which got bounced cannot be the basis of another cheque bounce case against him. When a new judge is appointed to the court he starts the case from where it was left by the previous judge. If the accused is filing frivolous applications then you must bring it to the notice of the court. The court cannot take any action against him for not honouring the MOU which he had entered into with you. There are inherent limitations on the court to not to traverse beyond the case which is heard by it. So there is nothing illegal in what the court is doing at this juncture. The guilt or innocence of the accused will be decided only after evidence is complete. You have yourself stated that cross examination is not yet complete, which implies that there is no evidence yet before the judge to enable him to record a finding on the guilt or lack of it of the accused.
2. If MOU has been dishonoured by the accused you can file a complaint for cheating against him.
3. It is surprising that a cheque bounce case has dragged for 7 years. In Delhi cheque bounce cases are decided within 1-1.5 years. You should request the District Judge to transfer the case to some other judge. No appeal can be filed. Alternatively, you can file a special civil application in the High Court to expedite the case.
if the settlement had been executed before the court and court passed the order in which the accused provide another cheques then you may file a cheating case and contempt of court proceedings may also be initiated against him before police or court.
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Advocate, New Delhi