Money due under court settlement
Under section 138 of NIA was convicted in lower court. Went for appeal in session court got bail and compromise is made in the court to return the money. 30% of the total money is paid and due to demonetisation, the next installment got delayed. Now the complainant is opting to continue the trial. What should I do now? What is the fate of the money already paid??
you can file the contempt of order in session court and together asked the balance 70% with interest and remedy, separate for harassment. you can also file contempt petition before the HIGH COURT, but my advice that you first file in same court of session where you get the order for return the money.
Let us explain the basic concept behind section 138 cases in a very plain and simple language. Compromise in Section 138 of the NI (Negotiable Instrument) Act cases ideally happens when both the parties are willing to come down to a mutual settlement as to the due amount of the cheque is concerned.
Demonetisation has affected almost all walks of life and that to very badly. The major concern of the complainant under section 138 cases – is money. The moment the complainant gets satisfied about him getting his money back, he/she immediately takes his complaint back from the court. Because the only motive of the complainant to go to court is the amount of the dishonoured cheque, otherwise what will the complainant get after sending the accused to jail. Also, as far as the fate of the money (that you have already paid) is concerned, it gets reduced from the final standing amount which is due as against the complainant. The Hon’ble court where the case is already pending takes due notice of the facts and evidences alongwith the testimony of the accused. The circumstances keep on changing ‘lis pendens’. You, being the accused can very well submit before the court with regard to the fact that you have already paid a certain amount to the complainant towards the standing amount of the cheque which was dishonoured. On the next date of hearing, such documentary proof to this effect should definitely be produced before the Hon’ble court.
Understanding the case, from the point of view of the complainant – his/her very first and the only objective of filing section 138 was deficiency of funds and now that he/she has still not received the said payment in full thereby, withdraws the case from the court – defeats his/her aim behind the complete exercise. Instalment delayed or not, how is the complainant able to assure himself that this time he/she is going the get his money back.
Further, after calling for a compromise when the accused makes excuse and backs down from his/her promise of committing to the full amount of the cheque – the court on the next date of hearing asks for reasons of not doing the same and in circumstances where he does not compromise at that stage and lingers on the process then he will have to pay costs in terms of settled law by the Hon’ble Supreme Court.
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