138 of nia
Amresh
(Querist) 28 August 2013
This query is : Resolved
Dear All,
Mr x have deposited a cheque of Mr. y and that cheque was returned unpaid. X sends a legal notice through Advocate to y and on that Advocate have mentioned that your cheque have been returned unpaid due to the reason 84 i.e., signature mismatch and overwriting. There is insufficient fund also.
Bank statement of y clearly shows that there is insufficient fund on that date. But on notice advocate have not mentioned that return is due to reason 1 i.e., insufficient fund. Did on the basis of clerical mistake of advocate by not mentioned no. 1 x will loose the case.
My second point is that later on y submits a letter from his bank stating that cheque was returned due to reason 84 i.e., overwriting and signature mismatch and at the same time x is also having certificate from his banker stating that cheque was returned due to reason 84/1 i.e. due to insufficient fund and signature mismatch/overwriting. What will be the position in court taking in view that bank statement is showing insufficient fund.
ajay sethi
(Expert) 28 August 2013
if Y cheque has bounced on grounds of signature differs then if accused inspite of notice fails to make payment within period of 15 days complaint is maintainable .
X wont lose the case if advocate failed to mention that there was insufficient fund in account .
to be o n safer side also file summary suit
Amresh
(Querist) 28 August 2013
Thanks Mr. Ajay Sethi
Rajendra K Goyal
(Expert) 28 August 2013
Well advised by expert ajay sethi ji, nothing more to add.
prabhakar singh
(Expert) 28 August 2013
Besides insufficiency of funds,signature mismatch of drawer,account closed also attracts commission of offence u/s 138 N.I. Act.
DEFENSE ADVOCATE.-firmaction@g
(Expert) 28 August 2013
1) It will all depend on how strongly the accused fights the case.
2) The mistake in notice is relevant and complainant can not be allowed to deviate from it.
3) Accused bank says the cheque is returned due to over writing is strong defense.
Statement of the your bank will not be relevant., what the bank of accused says will be relevant.
Amresh
(Querist) 28 August 2013
Ok but what about bank statement that shows that there was insufficient fund.
Amresh
(Querist) 28 August 2013
Ok but what about bank statement that shows that there was insufficient fund.
If bank statement is not a corroborstive evidence than can we assume that by setting with the brach official one can defete the very purpose of law.
Please comment.
Amresh
(Querist) 29 August 2013
Comments pleasr
Amresh
(Querist) 29 August 2013
Comments please.
Guest
(Expert) 29 August 2013
Mr. Amresh,
In spite of experts replies to your query, your insistence, as "comments please" is surprising. It seems you want some comments, which may suit to your own taste. legal position suits to one party and does not suit to the other.
Please be aware, when you don't discuss the real problem with you and merely keep the experts in guessing position by using x, y, z, etc., to make your query like a student's academic query, you should have expected only academic answer, like a teacher makes a student understand the implications of law in a hypothetical situation, which your query actually presents.
In your original query, you have mentioned about bank statement showing insufficient funds, but now you have asked if the bank statement shows sufficient funds. Please mind it, we don't hold tutorial classes here.
If the experts continue to reply on your hypothetical queries, there can be an unending chain of supplementary questions, like you have put now.
It would be better for you to discusss the real life problem, if you are facing any, along with its background to get an appropriate solution.
