WHAT ANCILLARY APPLICATIONS ARE REQUIRED TO BE FILED DURING A CHEQUE BOUNCE CASE?

After knowing about all the Steps which are involved; What goes into a Demand Notice; What goes into a Cheque Bounce Complaint, and What are the stages in the process of a Cheque Bounce case, we have now reached to the last portion of My Second Shorticle Series “CHEQUE BOUNCE PROCEEDINGS IN INDIAN COURTS”.

In this Shorticle you will get to know about some basic Applications which are required to be filed during a Cheque Bounce case. Though, this Shorticle talks about “Ancillary Applications”, but according to me, these are the most effective Applications in a Cheque Bounce Case.

 

 

For a better understanding, each of the relevant “Ancillary Application” has been mentioned at its relevant stage, so let us Re-cap the stages of a Cheque Bounce Case again:

 

FILING COMPLAINT

(Before the Magistrate Court)

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RECORDING VERIFICATION STATEMENT OF COMPLAINANT (ON OATH)

(By a Magistrate under Section 200 of CrPC)

(Magistrate will issue a Summon against Accused u/s. 204 of CrPC)

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FIRST APPEARANCE OF ACCUSED

(After receiving Summons from Court)

(Accused must mandatorily appear before Court)

(Take Bail from the Court)

1)  Bail Application (u/s. 436 of CrPC): The offence of Cheque Bounce is a Bailable Offence, i.e. the Accused has the right to take bail from the Court. Once, the Accused appears before Magistrate, make sure that your Advocate gets you a Bail u/s. 436 of CrPC.

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PLEA RECORDING OF ACCUSED

(Accused to plead GUILTY/NOT GUILTY for the offence)

2)  Application for Interim Compensation u/s. 143A of NI Act: As soon as the Accused pleads NOT GUILTY before the Magistrate, make sure that your Advocate files this Application u/s. 143A of NI Act, requesting the Magistrate to direct the Accused to pay 20% of the Cheque Amount in favour of the Complainant.

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EVIDENCE OF COMPLAINANT

(By filing an Affidavit under Section 145 of NI Act)

(With originals like Bounced Cheque, Dishonor Memo, Demand Notice etc)

(Complainant and his witnesses will be cross-examined by the Accused)

3)  Application to exempt Accused from personal attendance u/s. 205 of CrPC: Appearance of the Accused person on every date is mandatory in Criminal Cases. However, by this Application u/s. 205 of CrPC, the Advocate of the Accused may request for exemption of the Accused for such date citing appropriate reason for the absence;

4)  Affidavit of Evidence u/s. 145 of NI Act: Usually, evidences are to be tendered by parties orally from the witness box. However, in Cheque Bounce cases, the Complainant is given the leverage of filing his evidence by way of an Affidavit u/s. 145 of NI Act.

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RECORDING STATEMENT OF ACCUSED (NOT ON OATH)

(By Magistrate under Section 313 of CrPC)

5)  Application to assist the Court in framing questions u/s. 313 (5) of CrPC: The Accused / Complainant may file this Application u/s. 313(5) of CrPC to assist the Magistrate in framing such questions, the answers to which will assist the Court to view the story of the case from the side of the Accused.

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DEFENSE EVIDENCE OF ACCUSED

(Orally in the witness box, OR in the form of Affidavit)

(Accused and his witnesses will be cross examined by the complainant)

6)  Application seeking permission to file Evidence by way of Affidavit: No provision of law gives the Accused the right to file his Evidence through Affidavit, unlike the Complainant u/s. 145 of NI Act. However, this legal position is changing with the help of several High Court Judgments (such as, Rakeshbhai MaganbhaiBarot v. State of Gujarat AND Magma Leasing Ltd. v. State of West Bengal andOrs.), which specifically points out that the Accused must also be given the option to file his Evidence through Affidavit or Orally. Therefore, this Application must be filed to seek permission of the Magistrate for filing Evidence via Affidavit.

7)  Affidavit of Evidence of the Accused: After the Magistrate gives necessary permission to Accused, then an Affidavit of Evidence can be filed on behalf of the Accused.

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FINAL ARGUMENTS

(Oral Arguments and Written arguments by both Advocates)

 

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JUDGEMENT

(By Magistrate)

 

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APPEAL TO SESSIONS COURT

(Within 30 days of the Judgement)

8)  Application to deposit Interim Payment on Appeal u/s. 148 of NI Act: At the very first date of hearing of the Appeal, the Complainant, through this Application u/s.148 of NI Act, can request the Magistrate to direct the Accused for depositing a payment of (minimum) 20% of the Fine/Compensation amount imposed by the Trial Court.

9)  Application to release the Interim-Payment amount in favour of Complainant u/s. 148(3) of NI Act: After the Accused has deposited the Interim-Payment amount with the Sessions Court, the Complainant can file this Application seeking permission of the Sessions Court to release such Interim-Payment in his personal bank account. 

 

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However, it is to be kept in mind that if the Accused gets acquitted by the Sessions Court, then the entire Interim-Payment amount has to be returned back to the Accused along with interest.

Having mentioned all the nitty-gritties of the procedures/Applications in Cheque Bounce cases, the most important Application is the Application to compound the offence u/s. 147 of NI Act.

This Application can be filed by the Accused at any point of time during the entire case, requesting the Court to finish-off the matter by imposing minimum possible fine upon the Accused. This Application is always taken as a welcome step by the Judges, as: (1) It reduces the case-load of the Court, and (2) It is the ultimate stepping stone towards attaining rightful JUSTICE.

 

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END OF SHORTICLE SERIES – II

CHEQUE BOUNCE PROCEEDINGS IN INDIAN COURTS?

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ABOUT THE AUTHOR

Advocate Shreyas Jain, being a legal practitioner based in Mumbai, specializes in Criminal Law and primarily deal with criminal matters placed before Metropolitan Magistrates and Session Courts at Mumbai & Thane. Mr. Jain is a first generation lawyer and believes in working and excelling at the ground level before going big. You may reach him at +91-7054407778 or through his e-mail jainshreyas1995@gmail.com

NOTE: VIEWS MENTIONED IN THE ARTICLE ABOVE ARE PERSONAL AND HAS NOTHING TO DO WITH ANY PERSON, PLACE, ORGANISATION OR ANY OTHER FALLING UNDER THE DEFINITION OF ‘PERSON’ UNDER INDIAN PENAL CODE, 1860.