• My brother convicted 138 case from lower court and now we appeal to session court

My brother convicted in 138 from lower court and now we move to session court. So here is my q? To iyou that if this same order will arise from session court so can we gat bail from session court instant to avoid imprisonment.order passed by lower court is 1.5 years imprisonment and 15thousand.n how much time will sesion court give us to appeal n got bail from hogh court.n what is the procedure to get bail from high court. We from ludhiana panjab. Thanks
Asked 2 years ago in Civil Law

17 answers received in 1 day.

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18 Answers

Firstly, once a person has been convicted from the lower court, he can directly file an appeal against that order, and simultaneously move an application for bail along with it.

Secondly, it may take two to three days to get an appeal listed before the Hon’ble Court.

Thirdly, if you do not get bail from the court of appeal then also you can move to High Court for bail, where you may get it as the offence is not of serious nature.

Sanjay Baniwal
Advocate, South Delhi
5464 Answers
13 Consultations

5.0 on 5.0

Hello,

Please share the copy of the judgment and the facts so that a concrete advise can be rendered.

Regards

Anilesh Tewari
Advocate, New Delhi
17850 Answers
315 Consultations

5.0 on 5.0

As soon as you go in appeal you can request the court to grant you the bail and again the same procedure can be adopted in the HC.

Get in touch with a local lawyer.

Regards

Anilesh Tewari
Advocate, New Delhi
17850 Answers
315 Consultations

5.0 on 5.0

Bail is not the problem in case of section 138 cases.

You need not to go high court. U ll get bail from session court. You have time of 30 days after receiving order. For appropriate advise you can contact.

Saurav Khullar
Advocate, Mohali
45 Answers

4.0 on 5.0

You should seek stay of your conviction from sessions court

2)you would be released on bail in sessions court

3) court would direct you to deposit 50 per cent of amount

Ajay Sethi
Advocate, Mumbai
79719 Answers
4806 Consultations

5.0 on 5.0

Your lawyer would make application for bail

Court would grant bail subject to certain terms and conditions as to deposit part of compensation amount awarded by trial court

Ajay Sethi
Advocate, Mumbai
79719 Answers
4806 Consultations

5.0 on 5.0

What is the cheque amount .

Generally courts direct path to deposit 50per cent of cheque amount to obtain bail

Ajay Sethi
Advocate, Mumbai
79719 Answers
4806 Consultations

5.0 on 5.0

You have 30 days to appeal to sessions court after the order is passed by trial court convicting your brother. You need to seek a stay on conviction order passed by sessions court and the court will grant you bail imposing certain conditions. The court may direct you to deposit 50% of amount.

Swarnarka Chowdhury
Advocate, Mysore
1878 Answers
5 Consultations

5.0 on 5.0

Dear Sir,

Your mother instantly get bail from sessions court. The profoma bail application is as follows. It is bailable offense. But Sessions Court insist for deposit of 10 to 25 of fine amount with one surety. Get ready with amount.

===========================================================================================

IN THE COURT OF THE HON’BLE DISTRICT AND SESSIONS COURT, BENGALURU

CRIMINAL APPEAL No. /2018

RANK BEFORE RANK BEFORE

Trial Court Appellate Court

BETWEEN

SHRI A.V. KRISHNAMURTHY

S/o A. Veerabhadraiah,

Aged 45 years

Working in Bosch, Audugudi branch,

R/at No. 77/B, 2nd Main Road,

Mico Layout, Near Shankar Mutt,

West of Chord Road,

Bengaluru North,

Mahalakshmipuram Layout,

Bengaluru – 560 086.

W/at: M/s. Bosch Ltd.

Grade/Group-G08,

Employee No.30732119,

Post Box No.3000,

Hosur Road, Adugodi,

Bengaluru – 560 030. Accused Appellant

AND

SHRI. S. VENKATESH,

S/o. Late S. Subbarao,

Aged about 49 years,

Working as real estate business man,

R/at No. 808, Channasandra,

Kengeri Main Road,

Rajarajeswarinagar,

Bengaluru – 560 098. Complainant Respondent

MEMORANDUM OF APPEAL UNDER SECTION 374 OF CRIMINAL PROCEDURE CODE, 1973 AGAINST ORDERS OF CONVICTION FOR THE OFFENCE UNDER SECTION 138 OF NEGOTIABLE INSTRUMENTS ACT

The appellant submit as follows:

I. That the address of the appellant for the purpose of issue of notices etc., from this Hon’ble authority is as sown in the cause title and also that of his advocate Sri. Nagaraju, Advocate, No. 96, In front of Park, “Santhrupthi”, 3rd Main Road, ITI Layout, Chandra Layout, First Stage, Bangalore-560039.

II. That the address of the respondent for the similar purpose is as shown in the cause title.

III. Being aggrieved by judgment passed by Hon’ble the XXII Addl. Chief Metropolitan Magistrate, Bengaluru in the impugned judgment in C.C.No.12015/2016 dated 11.12.2017 convicting the appellant under section 138 of Negotiable Instrument Act, this appeal is filed under section 374 of Criminal Procedure Code.

BRIEF FACTS OF THE CASE:

1. The Appellant submits that, the complainant filed complaint before Hon’ble Trial Court under section 138 of Negotiable Instruments Act alleging that himself and the appellant were known to each other for several years. The appellant further submits that, the respondent falsely alleged that the appellant approached him and requested for lending a sum of Rs. 25,00,000/- . The appellant further submits that, the respondent further alleged before the Trial Court in his complaint that at the time of availing the alleged loan the appellant agreed to repay the same within two months from the date of availment that is 10.04.2016. The appellant further submits that, the respondent is his complainant further alleged that the appellant after availing the said loan amount failed to repay the same inspite of repeated requests and demands. The appellant further submits that, the respondent in his complaint alleged that the appellant issued a cheque bearing No.843915 dated 12.04.2016 for a sum of Rs. 25,00,000/- drawn on Canara Bank, Mico Branch, Bengaluru, in favour of respondent. The appellant further submits that, the respondent in his complaint alleged that he presented cheque on 12.04.2016 for encashment in Vishveshwaraiah Co-operative Bank Ltd., R.R. Nagar, Bengaluru and further alleged that the said cheque was returned on 13.04.2016 with an endorsement “Funds Insufficient”. The appellant further submits that, on the basis of said allegations, the complainant/respondent got issued a legal notice dated 20.04.2016 to this appellant. The appellant further submits that, on the basis of such averments and legal notice the respondent failed a criminal case against the appellant under section 138 of Negotiable Instrument Act. Before the Hon’ble Trial Court respondent/complainant examined two witnesses that is complainant as PW1 and his wife as PW2 and got marked Ex. P1 to P12. Whereas, the appellant/accused examined himself as DW1 and got marked Ex. D1 to D30. The appellant further submits that, the Hon’ble Trial Court on the basis of such evidence convicted the appellant/accused and further directed to deposit a sum of Rs. 25,00,000/- towards fine amount.

2. The appellant further submits that, before the Hon’ble Trial Court he has taken following defense. The appellant/accused advancing small loans to the respondent/complainant, whereas respondent/complainant was not in financial status to advance such a big amount of Rs. 25,00,000/-. The appellant further submits that, before the Trial Court the appellant categorically taken the defense that, during financial crises, the appellant/accused requested the complainant/respondent to arrange for some amount of loan. At that time the respondent/complainant taken stock of such situation and informed the appellant that one of his friend by name Shri. Ganesh was ready to lend a sum of Rs.6,00,000/- and for that purpose the appellant as to issue signed four blank cheques on Canara Bank and also give a demand pro-note and also give an agreement of sale pertaining to the land of appellant/accused. The appellant/accused believing the words of respondent/complainant on 11.03.2016 at about 4 PM went near A2B Hotel, Kattarguppe, Bengaluru as per the instructions of respondent/complainant. At that time the respondent/complainant and his friend Shri. Ganesh forcibly took the above said four signed cheques, a signed demand pro-note and agreement of sale, from the hands of appellant accused and fled away. Immediately the appellant/accused approached the police but police not taken any action on the complaint of appellant accused. The appellant further submits that, during the course of trial before the Hon’ble Trial Court taken all pains and got examined himself as DW1 and got marked Ex. D1 to Ex. D30. The appellant further submits that, but the Hon’ble Trial Court without appreciating the oral and documentary evidence produced by the appellant accused, given a finding that accused is liable for conviction and further directed him to deposit a sum of Rs. 25,00,000/- towards fine amount. The Hon’ble Trial Court ought to have called upon the respondent/complainant to produce IT returns and other documents in respect of his sources of income, but without taking such steps blindly believed the version of the respondent/complainant and convicted the appellant/accused. The respondent/complainant not discharged the primary and basic burden casted upon him to the effect that he was in a financial status to lend such a huge amount to the appellant/accused. The appellant further submits that, Ex. D1 to Ex. D30 are the substantial documents which rebuts the presumption raised in respect of the alleged cheque. Actually no presumption can be raised in respect of the alleged cheque since respondent/complainant not discharged his burden regarding is a source of income and also the circumstances under which the cheque was issued. The appellant further submits that, he has brought on record all the available rebuttal evidence as to under what circumstances the said cheque was come to the hands of respondent/complainant. In fact the appellant/accused several times advanced several amounts to the respondent/complainant. Taking the advantage of misfortune of appellant/accused, the complainant/respondent and his friend Shri Ganesh make believe the appellant/accused and thus he was forced to forgo his four signed cheques, signed demand pro-note and a signed agreement of sale. There is abundance of evidence on record, on behalf of appellant/accused. The appellant further submits that, without appreciating such evidence the Trial Court all of a sudden jumped to the conclusion that the respondent/complainant has proved his case and thus finding was given to the effect that accused was convicted for the offence under section 138 of NI Act. The said conviction not followed by any sentence. Thus as per settled law of the land mere conviction not followed by sentence, is a vague judgment and on such judgment the convicted accused cannot be asked to deposit a sum of Rs.25,00,000/- towards fine amount. Thus legally and literally the judgment passed by Trial Court is a void document and for the said reasons the appellant/accused approached this Hon’ble Court by filing this appeal with an ardent request to quash and set aside the said judgment both on merits as well as on technical issue raised above. The appellant/accused amongst other grounds urge the following grounds on the basis of which this Hon’ble Court may kindly set aside and quash the impugned judgment and acquit the appellant/accused, the grounds urged by the appellant/accused are as follows.

GROUNDS

3. The findings arrived by the Hon’ble Trial Court are against the facts on record.

4. The findings arrived by the Hon’ble Trial Court are against the laws of the land.

5. The Trial Court should not have accepted the case of respondent/complainant.

6. The Trial Court should have accepted the defense of the appellant/accused.

7. The observations made by the Hon’ble Trial Court in the impugned judgment in C.C.No.12015/2016 dated 11.12.2017 is perverse, arbitrary and liable to be set aside.

8. The impugned judgment passed by the Trial Court is not in accordance with provisions of Criminal Procedure Code, since it has not passed any order regarding sentences as such liable for set aside.

9. The impugned judgment passed by the Trial Court without giving any reasoning on the point of sentence and also not sentencing the accused, directly directed the appellant/accused to pay a sum of Rs.25,00,000/- towards fine amount is against the provisions of Criminal Procedure Code.

10. That as per the RBI circulars any financial transactions relating to more than Rs.20,000/- is to be made only through crossed cheque and/or demand draft, not followed by respondent/complainant as such the Trial Court erred in coming to the conclusion that the said transaction was valid.

11. In spite of the complainant/respondent not producing any document in regard to his financial status goes to the route of the case of respondent/complainant as such the judgment of conviction needs to be set aside.

12. The Hon’ble Trial Court not at all appreciated the evidence of appellant/accused though he himself examined as DW1 and got marked Ex. D1 to D30 as such the judgment is liable to be set aside and matter may be remitted back to Trial Court.

13. The complainant/respondent utterly failed to the basic feature of initial burden casted upon him thus the Trial Court ought not to have raised presumption in respect of signing of the alleged cheque under Ex.P3.

14. The Hon’ble Trial Court not appreciated the evidence as to under what circumstances the signed blank cheque at Ex.P3 fallen into the hands of respondent/complainant as such the impugned judgment is liable for set aside.

15. The complainant/respondent not produced any documentary evidence or bank transactions in respect of passing of consideration of Rs.25,00,000/- in favour of appellant/accused. Thus the alleged cheque is without consideration as respondent/complainant violated the directives issued by the Reserve Bank of India.

16. The Hon’ble Trial Court not taken into consideration about the provisions of Income Tax Act since respondent/complainant not produced any document to show that he is an income tax payee.

17. None of the documents produced by respondent/complainant established the sources of income of him.

18. The appellant/accused could not secure the relevant documents at the time of trial before the Hon’ble Trial Court and same may be received by this Hon’ble appellate court or a direction may be issued to receive the same by the Trial Court, by remanding back the matter to the Trial Court, after setting aside the impugned judgment passed by Trial Court.

19. All other grounds which are not urged and pleaded in this appeal would be argued during the course of final arguments of this appeal.

20. The appellants humbly prays to treat all the defense, oral and documentary evidence before the Trial Court on behalf of appellants as part and parcel of this appeal.

INTERIM RELIEF

21. The Hon’ble Trial Court not taken into consideration basic features of presumption to be raised in respect of alleged cheque and also not taken into consideration the voluminous evidence produced by appellant/accused. Further the Trial Court passed impugned judgment without passing any order regarding sentence. The appellant/accused is having many more grounds in his favour. The appellant/accused is an employee working in MNC Company as such he will be put to irreparable loss and there is every danger of losing his job. All these years the appellant/accused is under growing trauma as respondent/complainant lodged false complaint. The above grounds may kindly be taken into consideration and grant interim relief by stating the operation of impugned judgment decree till the end of proceedings of this appeal. The appellant/accused is already on bail and in the above circumstances he may be admitted to bail during the pendency of this appeal.

22. That if the operation of the said impugned judgment is not stayed there would be immense effect on the activities of appellant/accused who is an employee of multinational company.

23. The appellant humbly prays for staying the operation of the impugned judgment passed on 11.12.2017 in C.C.No.12015/2016.

PRAYER

WHEREFORE, the appellant humbly prays that the Hon’ble Court may kindly pass:

a. To call for all the records in C.C.No.12015/2016 which was decided finally on 11.12.2017 by the Hon’ble XXII Addl. Chief Metropolitan Magistrate, Bengaluru.

b. To kindly quash and set aside the impugned judgment C.C.No.12015/2016 dated 11.12.2017 passed by the Hon’ble XXII Addl. Chief Metropolitan Magistrate, Bengaluru. and consequently acquit the accused and set him at liberty by cancelling bail bonds and surety bonds executed by himself and his surety. Further kindly issue a direction to the Hon’ble Trial Court to release the security amount to which appellant/accused deposited at the time of availing bail before Hon’ble Trial Court. Alternatively,

c. To kindly quash and set aside the impugned judgment C.C.No.12015/2016 dated 11.12.2017 passed by the Hon’ble XXII Addl. Chief Metropolitan Magistrate, Bengaluru and remand the matter to the Trial Court and to allow the appellant to adduce additional evidence both by way of marking documents and by way of leading oral evidence.

d. Grant any such other relief as this Hon’ble Court deems fit in the circumstances of the case.

e. Allow the appeal in the interest of justice and equity.

INTERIM PRAYER

WHEREFORE, the appellant humbly prays that the Hon’ble Court may kindly pass interim prayer as follows:

Appellant/accused may kindly be released on bail on reasonal conditions, during the pendency of this appeal, in the interest of justice and equirty.

Verification

I, SHRI A.V. KRISHNAMURTHY, S/o A. Veerabhadraiah, Aged 45 years Working in Bosch, Audugudi branch, R/at No. 77/B, 2nd Main Road, Mico Layout, Near Shankar Mutt, West of Chord Road, Bengaluru North, Mahalakshmipuram Layout, Bengaluru – 560 086, being appellant/accused in this appeal, do hereby declare that the contents of Para No 1 to all of above appeal are true and correct to the best of my knowledge, belief and information.

Appellant

Through

Advocate

Place: Bengaluru

Date:

Kishan Dutt Kalaskar
Advocate, Bangalore
5644 Answers
235 Consultations

4.8 on 5.0

You need to file for bail and suspension if sentence in session court. In revision in HC you need to file suspension and bail too

Prashant Nayak
Advocate, Mumbai
22633 Answers
49 Consultations

4.4 on 5.0

Dear Client,

After session Court order, if dismissal of appeal, than jail, have to file second appeal in High Court and stay/suspension on court order till pendency of appeal to come out of jail.

Yogendra Singh Rajawat
Advocate, Jaipur
21407 Answers
31 Consultations

4.4 on 5.0

1. The Trial Court has passed the imprisonment order against your brother.

2. You shall have to file an appeal before the Session Court praying for setting aside the said order and simultaneously file an application for bail of your brother till the appeal is disposed off by the Session court.

3. If the Session court upholds the Trial Court order then you shall have to approach the High Court filing an appeal and there also you shall have to file an application for availing bail of your brother til the appeal is disposed off by the High Court.

Krishna Kishore Ganguly
Advocate, Kolkata
24902 Answers
707 Consultations

5.0 on 5.0

1. You shall have to file the Appeal and bail application before the Sessions court and also before the High Court, if needed.

2. Engage an experienced lawyer having expertise in this field to defend your brother.

Krishna Kishore Ganguly
Advocate, Kolkata
24902 Answers
707 Consultations

5.0 on 5.0

1. You shall have to contest the case on merit.

2. Without having merit in the case, it will be difficult for your Advocate to defend your brother.

Krishna Kishore Ganguly
Advocate, Kolkata
24902 Answers
707 Consultations

5.0 on 5.0

First of all you should approach the next appellate court only with a petition to suspend the sentence under section 389 cr.p.c.

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.

You could have got the sentence suspended by the trial court itself when it pronounced the sentence.

After suspending the sentence bail can be granted by the appellate court

T Kalaiselvan
Advocate, Vellore
69750 Answers
951 Consultations

5.0 on 5.0

How to safe from order of session court. How to get bail from session and high court of panjab

File an appeal against the lower court judgment and along with it you may file a petition under section 389 cr,p.c. seeking to suspend the sentence and a bail application to enlarge him on bail till the disposal of the appeal by the appellate court.

This you can file it in the appellate court itself.

T Kalaiselvan
Advocate, Vellore
69750 Answers
951 Consultations

5.0 on 5.0

You can consult a local advocate if your present advocate is not guiding you properly, discuss with him about the effectiveness of preferring this appeal or to go for compromise by paying the fine amount or the cheque amount whatever the lower court had pronounced in the judgment by talking to the complainant.

If he agrees for the compromise and a negotiated settlement is arrived, better you may get relieved by initiating action accordingly.

T Kalaiselvan
Advocate, Vellore
69750 Answers
951 Consultations

5.0 on 5.0

yes you ll get bail from sessions court for one month and you have to file appeal before high court within one month. with appeal counsel ll file application for suspension of sentence and you ll get bail from there

Tarun Budhiraja
Advocate, Rohtak
379 Answers

4.8 on 5.0

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