Legal Question in Criminal Law in India

section 138 SICA 22

I am retired Air Force officer filed case under section 138 in 1999

Before the proceeding in the Metropolitan's court could begin (delay of 5 yrs )the opposite party goes to High court and the high court directs it back to session court Mumbai(trial Court Andheri ).Is it possible for the lawyer to move from lower to higher court and back again without a single day hearing to take place , on one or other pretext or in legal language you call it a point of law. Thus delaying the proceedings indefinately.Can a criminal get away scot free when he has deliberately / knowingly given the cheque just before (One month)the BIFR order( The order of earlier date was reserved till next date known to accused.


Asked on 1/07/06, 12:36 pm

1 Answer from Attorneys
M OBEROI M.S.OBEROI & Co.

Re: section 138 SICA 22

the law as clarified by Delhi High Court and Rajasthan High Court in cases where a cheque has been issued and proceedings start under BIFR is that such a person has to show his "bonafides" to the trial court ie. the issuer of the cheque has to show to the trial court that he did all that is possible to get the stay vacated or orders modified from BIFR , seeking that BIFR should vacate / modify the order , so that the issuer may honour the cheque . In other words , the issuer should show to the court or court must ask the issuer of the cheque , to show what efforts did he make to get the order of BIRF modified , so that he could have got the cheque honoured . If the issuer is not able to show that he took up such efforts , then as per above judicial interpretations mentioned above , he will not be allowed to hide behind judial order.

Refer: Nihil Channa vs The State Cr. M C 2282 of 2003 decided by Justice S..agarwal of Delhi High Court on 24.8.2004

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Answered on 1/08/06, 4:47 am


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