Thursday, October 7, 2010

cheque return is an offence in books only

My experience in Court is not so vast but even still I am confident that my experience i enough to know the truth. We all know that today cheque return is an offence under section 138. It's a speedy remedy available to the Complainant. To be honest, its neither speedy nor reasonable, but a nightmare for sufferers. Its a means to harass the victims and the fundamental rights of Justice is almost broken day in day out. I will illustrate the same with some cases.

Well after giving Notice you will have to file a case within 30 days after the Notice period expires. When you file the case you have to attach each and every document to the said Complaint. Well I fail to understand the need of the same. The same document are filed in evidence latter and xerox is served to the accused for the second time. That's waste of natural resources on account of paper and also additional burden to the litigant.

The most fantastic things which amuse me is I pray, I beg, I shall be duty bound to the Court as always... colonial words pinching me to bottom of my heart. I think the litigant comes to seek redress his grievance and is not a beggar or a prayer. He needs to seek relief and/or seek remedy. But there are many in departments who object and insist on the words like pray and beg.

Most Court insist on complainant and Advocate being both present. Burden on Complainant to be present each time leaving his work and standing like a beggar.  The twist is here. I filed a case at Andheri Court. The magistrate asked me to get the Affidavit Notarised. I informed him that affirmation can be before the Court also. He said that since there is no registrar I have to get it Notarised on ground floor. The Notarisation means an additional cost to Complainant but who cares. It seems that Justice is not a right but you are duty bound to beg for Justice. The Notary also do not charge the government notified rates and can ask anything like 200 to 500 and you negotiate it. Unless you know law you will be cheated.

Add to the wounds in Court fees which is 2% non refundable. Well if you have to get the money you have to file suit also making it the more than double court fees. I experience difficulty in getting Court fees of higher denomination and again the litigant is a beggar. At Andheri we had to go to Dindoshi and get the Court fees of Rs. 6000 plus and the time wasted was 2 hours and 200 for the rickshaw. On one occasion I gave an undertaking to get the same and when I went next time to regularise the same the department guy said "KAI DYA".. it doesn't resemble law but give something.

Then when you file the case, invariably you have to give something to the department guy unless you are a big shot and a big Advocate.

Then comes verification of the Complaint. I don't understand why we have to go for second time and verification is not done the same day. Many a times at the Verification date I have realised that since the matter is not numbered the matter is adjourned. Then after the Verification is done, the peon is likely to follow and demand something. Infact verification has to be in particular format of that Court on paper provided by that Court. Taking summons and other Notice including copy of Roznama is also a field where we run around several times and shed money. Its a waste of resources and guilty is the team related to judiciary. 

Then at all stages, for dates etc. some how you have to keep managing people. Many a times the magistrate is not available. If he is there he might say today I am overloaded and the matter is adjourned but my fees, the expenses don't stop. The day is gone especially in a city like Mumbai and no one cares.

I remember several instances of more harassment. In one matter, the matter appeared and magistrate said as per orders 2010 matter is transferred to morning board. Then in morning at 8.30 we realised that matter is not on board and was asked to take date in noon. then in noon I was in High Court and client had left. At 5.00 pm the magistrate called out the matter. My clerk waited and was scolded. He told the magistrate that I was there and he can confirm that client was there at 8.30. the clerk was at receiving end as nothing can be more painful than the magistrate wanting the complainant to come at 8.30 and wait till 5.00. It crawled in my mind that is he a complainant seeking Justice or just a slave who has to suffer as he has entered the Court of Law and is it not that he has been turned into a beggar. The date given was uncomfortable and Clerk requested next date but the magistrate declined. Either I have to come or loose my other matter. Possibility of Magistrate not being on that day cannot be ruled out.

Apart from that whenever we will not be available the magistrate to show that he wants disposal and Advocates are at fault for delay in system will shout like anything unnerving the litigant, who doesn't know whether he has hired a wrong Advocate or is it something else. I have come across cases where litigants start doubting the magistrate and the Advocate also.

By the time evidence starts, the Complainant regrets having come to Court and feels so frustrated that if he is given a licence to kill he will kill the other side and may be Advocate including me and also the magistrate. He starts using foul language and contemporaneous words against magistrate. My position becomes such that I cant say that he is wrong and cannot take it. The litigant by now has spent almost 30% and is nothing nothing nothing but a beggar and we all are responsible, be it, magistrate, department, his Advocate, other side and Advocate and in pressure and frustration he settles and the accused has enjoyed the money may be for 3 years and complainant has paid approx. 30 pc. in that period.. I salute the Justice given with pain in my heart as I am part of the system and my earnings and labour has become tainted and is not pure.

If wounder why there is no system where in you file the case and the verification of original is done then and there itself and inquiry regarding Jurisdiction is done immediately. Then issue Notice and send evidence Affidavit in advance and then direct cross examination and argument. I wonder why not have a proceedings or a separate Court for money related Suits where in we have both criminal punishment and recovery of money. I wonder why waste time of complainant to come to Court. If magistrate not there why not sms it to the Advocate in Advance. Why not incentive of refund of Court fees if you settle or may be pre litigation mediation. Why not expeditious trial. Why not discontinue a persons banking and ban him in banking if he has more than X number of cheques returned within a stipulated period. Why not have central unit record of all accused as it will show whether its habitual offender and if yes trial must be summarily done. If its not and refuttal of liability is there then give accused a fair hearing.

I think the purpose of 138 ( cheque return) has been diluted and it has become a means of victimisation of the complaint, which not stopped will lead to unrest and promotion of white collar crimes as incentive to crime is higher than incentive to be victim.

Jai Hind

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