• In cheque bounce case, is compensation ordered by the court recoverable, after accused imprisonment

Hi My Cheque Bounce Case Summary: 
One of my friend took 165000 money from me (Through Netbanking). He showed one property (site 30X40) and told me that he’ll buy that for me(as a mediator) . As he is my friend I believed him and gave 2 Lakh but later he didn’t buy it. He cheated me. He used my money for himself and after asking he gave me two post dated cheques which are get bounced later. I lodged only criminal case /138 act compliant (civil case didn't put, because my lawyer cheated me, he didn't tel/guide ) against him in court. If he ready to go jail also. how can i get my money/compensation back? any way? Please help, 

23-Dec-2017 I got Judgement as below 

Cheque 1 : "The accused is sentenced to pay fine of RS. 1,45,000 /- and in default to undergo SI for 9 months. Out of fine amount RS.1,44,000 /- shall be paid to the complaint as compensation U/s 357 Cr.P.C. The fine amount shall be recovered from the accused personally and from his estate".

Cheque 2 : "The accused is sentenced to pay fine of RS. 35,000 /- and in default to undergo SI for 9 months. Out of fine amount RS.34,000 /- shall be paid to the complaint as compensation U/s 357 Cr.P.C. The fine amount shall be recovered from the accused personally and from his estate". 

Questions: 

1.I did not file civil case/suit earlier (Actually, my lawyer cheated me he didn't told me that we need to file civil case also. so i didn't file.) . Now after judgement, if convict go to prison. then how can i recover my compensation amount? any way? Is it possible to put case (after he came out of jail) on his ancestral property/asset (against his share) to recover from his share?

2. will it benefit, if i go appeal in session court regarding increasing punishment/imprisonment?
Asked 4 years ago in Criminal Law
Religion: Hindu

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32 Answers

hi, sir you can file the execution petition of the court order.. if he do not pay the amount, the court has power to attach his property and personal bank account to recover money

Hemant Chaudhary
Advocate, Gurgaon
4617 Answers
55 Consultations

4.9 on 5.0

You motioned in the decisions that the amount will be recovered from his estate as land revenue. If he defaults in payment as per the order of the judgement you need to file a civil suit for execution of this order even he is in jail his estate may be attached to recover the amount as per the decree.

Vimlesh Prasad Mishra
Advocate, Lucknow
6829 Answers
23 Consultations

4.9 on 5.0

1) your civil suit is barred by limitation

2) summary suit should have been filed within period of 3 years ie by May 2013

3)you cannot file suit now to recover your money

Ajay Sethi
Advocate, Mumbai
84937 Answers
5618 Consultations

5.0 on 5.0

1) it does not make sense in going in appeal as accused has already been sentenced to 9 months imprisonment

2) if accused does not want to go to jail he would pay the fine amount

Ajay Sethi
Advocate, Mumbai
84937 Answers
5618 Consultations

5.0 on 5.0

Recovery suit can only be filed after the judgement to execute by civil court.

Vimlesh Prasad Mishra
Advocate, Lucknow
6829 Answers
23 Consultations

4.9 on 5.0

1. Even if he sufffers imprisonment, the amount imposed as compensation should be paid and that is the legal position.

2. May get reversed, instead if you are of the view that the court has imposed sufficient punishment, leave it.

Rajaganapathy Ganesan
Advocate, Chennai
2023 Answers
8 Consultations

4.9 on 5.0

This judgment supports your case, even, i had this in my mind to suggest you.

Rajaganapathy Ganesan
Advocate, Chennai
2023 Answers
8 Consultations

4.9 on 5.0

As per above judgment even if accused undergoes imprisonment he would be still liable to pay you compensation

Ajay Sethi
Advocate, Mumbai
84937 Answers
5618 Consultations

5.0 on 5.0

Dear frined,

You have posed a very good questions, which are equivalent to my break fast. Let me answer the same honestly, since I preside over the Cheque Bounce case Courtt (ACMM COURT) during my service.

My answers are as follows:

Cheque 1 : "The accused is sentenced to pay fine of RS. 1,45,000 /- and in default to undergo SI for 9 months. Out of fine amount RS.1,44,000 /- shall be paid to the complaint as compensation U/s 357 Cr.P.C. The fine amount shall be recovered from the accused personally and from his estate".

Ans: The last sentence of above order entitles you to recover the amount, whenever he possesses any immovable assets in his name. If he goes to jail then recovery of fine amount cannot be waived of. It can be recovered till 12 years from the date of judgments it works like civil court decree.

Cheque 2 : "The accused is sentenced to pay fine of RS. 35,000 /- and in default to undergo SI for 9 months. Out of fine amount RS.34,000 /- shall be paid to the complaint as compensation U/s 357 Cr.P.C. The fine amount shall be recovered from the accused personally and from his estate".

Ans: The last sentence of above order entitles you to recover the amount, whenever he possesses any immovable assets in his name. If he goes to jail then recovery of fine amount cannot be waived of. It can be recovered till 12 years from the date of judgments it works like civil court decree.

Questions:

1.I did not file civil case/suit earlier (Actually, my lawyer cheated me he didn't told me that we need to file civil case also. so i didn't file.) . Now after judgement, if convict go to prison. then how can i recover my compensation amount? any way? Is it possible to put case (after he came out of jail) on his ancestral property/asset (against his share) to recover from his share?

Ans. Even now you can file a civil suit if three years period is not expired, from the date of dishonor. Ancestral properties and self acquired properties of accused are attached to recover the compensation amount. You may just file an application for attachment of properties and then sale of the said properties.

2. will it benefit, if i go appeal in session court regarding increasing punishment/imprisonment?

Ans. You must go in appeal, because, during my tenure we use to award two times of cheque amount as compensation, now the courts are awarding only equivalent amount of cheque. The section itself says twice the amount of cheque. Further is not substantial sentence, it is only in default sentence. You will succeed if you prefer appeal/revision against the said judgment, since it came out after seven years, it is nothing but the failure of justice and the Courts have to answer for this abnormal delay. SC nowadays giving contradictory judgments, you should not mislead by such judgments. You will get what you want, if we properly put before the judges. Each case is a research paper for every judge. Rest assured.

Kishan Dutt Kalaskar
Advocate, Bangalore
6017 Answers
330 Consultations

4.8 on 5.0

You will get the compensation even after accused has been sent for imprisonment. You will be getting the amount that has been ordered by the Court.

Anupam Kirti
Advocate, New Delhi
90 Answers
2 Consultations

4.9 on 5.0

you can file money suit against him. appeal will not be good option since lower court is giving judgement in your favor..

Arnab Kumar Banerjee
Advocate, Kolkata
112 Answers

4.0 on 5.0

1.I did not file civil case/suit earlier (Actually, my lawyer cheated me he didn't told me that we need to file civil case also. so i didn't file.) . Now after judgement, if convict go to prison. then how can i recover my compensation amount? any way? Is it possible to put case (after he came out of jail) on his ancestral property/asset (against his share) to recover from his share?

Dont use the word that your advocate cheated you.

It is improper and wrong on your part to level such false allegations against your advocate.

You approached him with your problem of cheque bounce, he did his duty properly and got a favorable decision.

The judgment is clear that the amount to be recovered from his estates.

If you have filed the civil cae for recovery then also the same judgment would have been rendered.

You have to follow the same process for recovery in this also.

It is not that he is convicted hence he will not pay the amount, the sentence is clear that he has to pay as well as to undergo the imprisonment.

You look for the procedure to recover the amount by due process of law.

2. will it benefit, if i go appeal in session court regarding increasing punishment/imprisonment?

The maximum punishment in cheque bounce case is two years only hence what will be the use of preferring an appeal against it.

You adopt the procedure for recovery of amount as per court judgment.

T Kalaiselvan
Advocate, Vellore
75050 Answers
1263 Consultations

5.0 on 5.0

My cheque dates are 30-May-2010 and 31-Aug-2010. I got judgement after 7 years. Is it possible to file civil suit now for recovery? is it not with in 3 years from cheque date we have to file civil suit? After 3 years also possible to file civil suit?

It is badly barred by limitation.

Since the court judgment favors recovery of the cheque amount, any civil suit in this regard will not be maintainable.

T Kalaiselvan
Advocate, Vellore
75050 Answers
1263 Consultations

5.0 on 5.0

The judgment is very clear, you may adopt the due process of law as guided in the referred judgment of supreme court.

T Kalaiselvan
Advocate, Vellore
75050 Answers
1263 Consultations

5.0 on 5.0

1. Your civil suit for recovery of money will now be barred by the law of limitation as it ought to have been filed within 3 years.

2. So the suit will not be maintainable now in view of the bar of limitation.

Ashish Davessar
Advocate, Jaipur
30752 Answers
923 Consultations

5.0 on 5.0

Having undergone the imprisonment imposed by the court does not absolve the convict from paying the compensation awarded by the court. File an application to the court under Section 421 CrPC to issue a distress warrant to recover the amount. If the accused does not pay the amount then he will have to undergo further imprisonment.

Ashish Davessar
Advocate, Jaipur
30752 Answers
923 Consultations

5.0 on 5.0

If accused has been convicted of offence in case he applies for police clearance certificate his prior conviction would be reflected in his record

Convict has to disclose his prior conviction while applying for passport

Ajay Sethi
Advocate, Mumbai
84937 Answers
5618 Consultations

5.0 on 5.0

Whether he settles the amount or not, he has to undergo imprisonment, that is the judgment or verdict against him.

You should confine to the case and its repercussions alone and should nto travel beyond to affect his personal rights.

If he is not settling the amount ordered by court, you may follow the legal procedures for recovery as per provisions of law and you cannot ask to get his aadhaar or passport cancelled.

You have not mentioned about the second lawyer in your first post.

You have come out with concept of the second lawyer now only.

You have stated that your lawyer cheated, therefore it can be understood in common language and nobody can guess what is in your mind until you reveal the facts or furnish the details while posting your query.

Moreover in courts one has to wait, whether he is a complainant or accused, for his turn to come.

This cannot be taken as an insult.

T Kalaiselvan
Advocate, Vellore
75050 Answers
1263 Consultations

5.0 on 5.0

The accused will have to comply with the order in any way. You don't need to blacklist or do something like that. There is no need. Law will take its own course.

Anupam Kirti
Advocate, New Delhi
90 Answers
2 Consultations

4.9 on 5.0

Hello,

If he refuses to settle then this will have a impact on all the documents as stated by you. You do not have to do any thing for the same, the records will be therein the local police station.

Once he gets off the jail it will not be easy for him to cheat anyone/ govt. agency then,

Regards

Anilesh Tewari
Advocate, New Delhi
17870 Answers
344 Consultations

5.0 on 5.0

If the person goes to jail and does not return your money then you will have to file an execution petition for the execution of the award given by the court

Anilesh Tewari
Advocate, New Delhi
17870 Answers
344 Consultations

5.0 on 5.0

Yes you can file an appeal in sessions Court.

Rajesh Kumar
Advocate, Ludhiana
119 Answers
1 Consultation

4.3 on 5.0

He will be an offender in the eyes of the law and therefore his future will be in jeopardy. However, you need to bother about your money and find ways to get it back.

Rajaganapathy Ganesan
Advocate, Chennai
2023 Answers
8 Consultations

4.9 on 5.0

1. There is no blacklist or criminal list prepared or maintained. If he does not pay the compensation then distress warrant has to issue followed by sentence in default.

2. You are free though to send to the RTO information about his conviction along with a certified copy of the conviction order passed by the court so that his passport may be suspended.

Ashish Davessar
Advocate, Jaipur
30752 Answers
923 Consultations

5.0 on 5.0

Hi, with so many advices you have, nothing much is left to advise.

Ganesh Singh
Advocate, New Delhi
6629 Answers
16 Consultations

4.5 on 5.0

In your counter to the appeal preferred by the appellate/accused, you may plead your circumstances and seek enhancement of compensation amount and also maximum punishment as per provisions of law in this regard.

Let the appellate court decide about the quantum of compensation and also the punishment based on your counter objection to the appeal.

T Kalaiselvan
Advocate, Vellore
75050 Answers
1263 Consultations

5.0 on 5.0

You can appeal against order of trial court and seek enhancement of compensation, fine , punishment imposed on accused

Ajay Sethi
Advocate, Mumbai
84937 Answers
5618 Consultations

5.0 on 5.0

No. You can not ask for any other compensation at this stage. If you are not satisfied with the order of the court then you will also have to file an appeal.

You will have to file an appeal for getting an increased compensation.

Regards

Anilesh Tewari
Advocate, New Delhi
17870 Answers
344 Consultations

5.0 on 5.0

Dear Sir,

My answers are as follows:

Question :

if he didn't settle Compensation or decide to go jail, is it possible to blacklist/mark convict in criminal list (as he convicted in criminal case) in police station or against passport/visa or against his aadhar number or in register office or in bank so that future lender or govt. schemes should aware of his criminal record/history.

Ans: Once a person is convicted by any Court and if such conviction was not set aside then it is a bad remark in the history of such person. Such convicted person may lose several opportunities including getting in a passport/visa and also employment. But in some cases it was held that after two years of conviction such person is entitled for all benefits as if there was no conviction.

Dear legal advisers,

Accused appeal in session court against the judgment from trial court. I am confident that he will not get acquit (as i have strong evidences). So my question is, Here as Accused went appeal in session court, is there any chance/scope/opportunity for me (complainant/victim) to request/impose more compensation/fine and punishment to Accused in session court? will session court consider my arguments/concerns? any possibility of increasing fine/compensation/punishment or otherwise, will it keep same compensation/fine and punishment?

Ans: Yes, It is called as counter appeal. The complainant has every right to seek enhancement of compensation and imposing of maximum punishment. For more advise please visit my office.

Kishan Dutt Kalaskar
Advocate, Bangalore
6017 Answers
330 Consultations

4.8 on 5.0

Hi, it is suggested that take the case for mediation and then ask for recovery of the amount.

Ganesh Singh
Advocate, New Delhi
6629 Answers
16 Consultations

4.5 on 5.0

In Parmeshwar Mandal, a Division Bench of the Patna High Court also dealt with similar issues and answered the queries as follows:

"In the circumstances, after consideration of the entire matter, conclusions of this Court are as follows:-

(1) - By virtue of the Proviso, as inserted in Section 372 of the Code of Criminal Procedure, 1973 by the Criminal Procedure Code (Amendment) Act, 2008 (Act 5 of 2009), a "victim" has been put at a higher pedestal, than a prosecuting agency or a complainant, in the matter of preferring an appeal against any order of a criminal court acquitting the accused or convicting for a lesser offence or imposing inadequate compensation. This Proviso gives an unqualified "right" to a "victim" to prefer an appeal in its terms, as against the enabling Sections 377 and 378, which only give liberty to a District Magistrate, the State Government, the Central Government and the complainant, as the case may be, to prefer an appeal against an order of sentence on the ground of its inadequacy or against an order of acquittal.

(2) - The right of a "victim" to prefer an appeal in terms of the said proviso to Section 372 is an unqualified right and no "leave to appeal" or "special leave" is required to be obtained by him/her for the purpose, as required by the State or the complainant for maintaining an appeal in terms of Section 378 of the Code.

(3) - No limitation of time has been provided by the Legislature for exercise of such a right of appeal by the "victim" in terms of the said Proviso. Hence, in the fact and circumstances of each case, the Court has to determine as to whether the appeal was entertainable, or not, on the ground of absence of bonafide explanation for delay by the appellant. The limitation laid down by the Full Bench of Punjab and Haryana High Court is a judicial fiat and not based on interpretation of the provisions of the Code or the Limitation Act, 1963. Hence the same is applicable only within the territorial jurisdiction of that High Court and not beyond.

(4) - However, in view of the legal presumption of innocence in favour of the accused, the yardsticks laid down by judicial pronouncements for consideration of appeals under Section 378 shall be applicable in case of an appeal under he said proviso to Section 372.

(5) - The expression - long after the present incident - used under brackets by the Apex Court in paragraph 5 of its judgment in case of National Commission for Women Vs. State of Delhi and another [AIR 2011 SC (Sup.) 392] : [(2010) 122 SCC 599] is only an obiter dictum of the Court and it does not lay down a law in terms of Article 141 of the Constitution of India.

(6) - Proviso to Section 372 of the Code came into operation w.e.f. December 31, 2009. Hence, in absence of any legislative intent to the contrary, in all cases, in which a judgment and order has been passed by a criminal court on and after that date, a right accrues to the "victim" to prefer appeal in terms of the said Proviso, irrespective of the date of occurrence and any subsequent event in the case prior to such judgment and order.

(7) - If the subject of the crime is dead or incapacitated to the extent or suffers from such a disability that he/she cannot take steps to exercise his/her right under the Proviso to Section 372, any of his/her next of kin, who can establish before the Court, to its satisfaction, that the crime had caused "loss" or "injury" to him/her also, besides to the subject of the crime, can maintain an appeal under the said proviso.

(8) - The "loss" and "injury" to an appellant before it (if he/she is other than the de-facto sufferer) has to be assessed by the Court in each and every case in the backdrop of definition of "injury" Patna High Court CR. APP (DB) No.1078 of 2012 dt.[deleted] provided in Section 44 of the Indian Penal Code, and not beyond it, before entertaining the appeal, in terms of the proviso to Section 372 on merits.

(9) - If any person prefers an appeal in terms of the proviso to Section 372, solely on the basis of his status as a "guardian" or a "legal heir", he/she will have to establish the legal basis of his/her such status in reference to the law, as may be applicable in the matter, with all its limitations and qualifications, or otherwise also (e.g. judicial order).

(10) - Once an appeal preferred in terms of the said proviso to Section 372, against an order is entertained by an appellate court on merit, to whatever result, no fresh/second appeal by any party/person can/should be entertained against the same order.

(11) - No distinction can be made between a case instituted by a complainant/ informant with the police and by a complainant before the Court directly, and an absolute right of a victim (a complainant or not) to file an appeal under Proviso to Section 372 does not get fettered by any other section of the Code contained in Chapter XXIX, which includes Section 378."

Ajay Sethi
Advocate, Mumbai
84937 Answers
5618 Consultations

5.0 on 5.0

Madras High Court

S.Ganapathy vs N.Senthilvel on 5 April, 2016

A victim of the crime, who has prosecuted an accused by way of a private complaint, has a statutory right of appeal within the limits prescribed under Section 372 of Cr.P.C.

(2) A complainant (in a private complaint), who is not a victim, has a remedy and can file an appeal in the event of acquittal of the accused after obtaining leave to appeal under Section 378(4) of Cr.P.C (3) In a private complaint, even if the victim is not a complainant, he has a right to appeal under the proviso to Section 372 of Cr.P.C., but he has to seek leave as held by the Supreme Court in Satyapal Singh.

(4) The term ?victim? has been correctly interpreted by the Full Bench of the Delhi High Court in Ramphal and we are in agreement with the same.

(5) A victim (as defined under Section 2(wa) of the Cr.P.C does not cease to be a victim merely because he also happens to be a complainant and he can avail all the rights and privileges of a victim also and (6) The decision of the Single Judge in Selvaraj holding that the term ?victim? found in Section 372 excludes a complainant, is not legally correct and in a given case, a complainant, who is also a victim, can avail right granted under Section 372 of Cr.P.C.

Ajay Sethi
Advocate, Mumbai
84937 Answers
5618 Consultations

5.0 on 5.0

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