Hi, My cheque bounce got dismissed by Calcutta Magistrate court on 03/07/15 as my lawyer never attended the hearing dates. Can I re-initiate it again by any means like via High court or Civil court? If yes, then what is the time limit for it.
If it was dismissed for default then it can be revived if you file for restoration of the said proceeding.
It is permissible under law.
Another option is to file Revision petition in the high court after filing restoration petition in the same court.
That is more suitable and recommended.
Time limit is 30 days.
You will have to file an appeal in the sessions court only.
If 30 days have expired then file an appeal with an application for condonation of delay.
Against an order of conviction for the offence punishable under section 138 of the said Act, an appeal is maintainable before a Sessions Court in view of sub section 3 of section 374 of the said Code. The substantive relief which may be granted in such appeal is of setting aside the conviction for an offence which relief can never be valued in terms of money. Such order of acquittal may incidentally 8 prevent monetary loss. The law on this aspect relating to appeals arising out of an order of conviction under section 138 of the said Act has been laid down by the Apex Court in the case of Dilip S. Dahanukar Vs. Kotak Mahindra Company Limited and another 5 ([2007]6-SCC-521). The Apex Court held that the Appellate Court while suspending the sentence under section 138 of the said Act was entitled to put the appellant on terms. However, no such term could be put as a condition precedent for entertaining the appeal which is a constitutional and statutory right. The Apex Court held that the appellate court can direct only a reasonable amount out of the compensation amount
Regards
1. It seems that your case had been dismissed in default. Now the remedy is to file a revision petition to restore the case. The court can restore it subject to cost.
2. File the revision immediately as there is no strict time limit.
You are requested to change your lawyer and inform court that due to fault of lawyer it happened and seek for restoration over a petition. You must do it immediately
Two years have passed since case was dismissed
2) even if you file an appeal against dismissal order you may not get any reliefs
3) you have to make out a case explaning delay in filing appeal of 2 years
Resort to the remedy of revision seeking quashing of the order whereby your complaint has been dismissed in default.
Magistrate has no power to recall his order dismissing your complaint in default
You can not restore the said case which has been dismissed.But you can file two fresh cases ,one is a criminal case under section 420 Cr. P.C. in Judicial Magistrate Court and another is Civil Court for recovery of money.
You can file in same court for restoration
This been delayed too much otherwise there was possibility of restoration.
Criminal proceedings dismissed in default for appearance can be restored-no Bar of 362 CrPC.
What was the order and when it came to ur knowledge.
Still 3 long years cannot be condoned until justify with sufficient cause.
Yes you can definitely file civil suit of recovery in the court of law within 3 years of date of cheque bounce.
Hi
File a revision petition as early as possible.
Thank You
Can I run simultaneously below three cases against the accussed? 1). A Criminal case under Cr.PC 420, 406 (eventually I filed it and is currently under the jurisdiction of Chief Metropolitan Magistrate, Calcutta). 2). A Cheque bounce case under 138 NI act ( Cheque bounce amount Rs. 170, 000). 3). A civil suit to recover the entire cheating amount (Rs. 3,28,000) and expense that I already made in subsequent court cases/legal proceedings.
Yes you can do so simultaneously
yes you can simultaneously file 3 cases against accused
2) file cheque bouncing case under section 138 Ni
2) cheating case under section 420 of IPC
3) summary suit to recover Rs 3.28 lakhs with interest
You can simultaneously run those cases
1. Yes, you can continue pursuing this.
2. No, in case the subject matter of this case is the same cheque in respect f which your previous 138 NI case was dismissed in default.
3. Yes.
Yes.
1. It can go on as it .
2.Yes, it is can also remain pending simultaneously.
3. Yes,it can also be filed simultaneosuly if within 3 years it is getting filed.
If the trial court dismissed the cheque bounce case for default, then you may prefer an appeal before high court seeking to set aside the lower court order and remit the same for trial.
You cannot blame your advocate for not representing your case before court, you should have followed it up by appearing before court regularly even if your advocate was not attending the court
1. It may be considered as double jeopardize
2. Civil suit for recovery can be pursued simultaneously
Yes this can be done.