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Discussion > Criminal Law > Limitation to issue notice U/s138 of NI Act   Unanswered Threads Post New Topic

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There are 25 Replies to this message


anuradha


independent lawyer
[ Scorecard : 45]
Posted On 31 August 2009 at 14:03 Report Abuse

Respected Forum Members,

The facts are: The Cheques were dishonored on 29 July 2009. However, we sent notice on 29 August 2009. However, the Complainant was told orally, not to issue notice after dishonour of cheques to wait for further 5 days, and he would pay the amount of dishonoured cheques with 5 days from the date of dishonour. However, the notice was issued on 29th August,2009, is the notice issued with the limitation. If not, wot can be done further ? Is there any remedy available?

 



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R.R. KRISHNAA


Legal Manager
[ Scorecard : 3799]
Posted On 31 August 2009 at 14:28 Report Abuse

You have given notice after 31 days ie., on 32th day you have issued notice.  Your legal notice is invalid.  The oral statement given to the complainant to wait for 5 days also will also not help your case.  If you are going to lodge proceedings under section 138 with the above notice, certainly your case will be defeated on the above ground itself.

 

In my opnion, the best solution would be to represent the same cheques with the bank and if it gets dishonoured again, issue a fresh legal notice which will entitle you a fresh cause of action to sue the accused.  Then file the complaint.



kranthi kiran


Works In Judicial Department
[ Scorecard : 664]
Posted On 31 August 2009 at 14:54 Report Abuse

As the limitation period of (30 ) days is expired, as told by learned friend, you can present the cheque as many times as you can with in the validity period of the cheque i.e.,  (6) months. On the disnour for the next time, u can issue a notice and proceed furtehr. 



AEJAZ AHMED


Legal Consultant/Lawyer
[ Scorecard : 12176]
Posted On 31 August 2009 at 15:38 Report Abuse

Dear Anuradha,

Your Case will be depend upon the result of " Fisrt Notice " issued by you on 29th August 2009;

If its received by the ' drawer of cheque ',  then your issuance of  " Second Notice " should  terminate the 'cause of action' .

Against your First Notice, if drawer refused or Notice returned for any other reason then only issue Second Notice,  Otherwise it should terminate " Cause of Action"   

Notice:- 
Notice is a very important stage. It is the non-payment of dishonoured cheque within fifteen days from the receipt of the notice that constitutes an offence. Issuing of a cheque and its dishonour is not an offence. The offence is when the drawer receives a notice from the payee and he fails to pay the dishonoured cheque amount within the grace period of 15 days that constitute an offence. Any demand made after the dishonour of cheque will constitute a notice. It is not necessary that the notice should be sent by Registered Post alone, it could be sent even by fax. It is not necessary that the notice should be in any particular form or style. What is essential is that there should be a demand to pay the dishonoured cheque amount.

It is held by the Supreme Court that while the cheque could be presented at any number of times however there shall be only one Notice. The following case may be noted on the subject:
Sadanandan Bhadran v. Madhavan Sunil Kumar (1998 (4) SCALE SC
Complaint U/s. 138- Maintainability - conditions precedent to applicability of sec. 138 - A cheque can be presented any number of times during the period of its validity- Whether dishonour of the cheque on each occasion of its presentation gives rise to a fresh cause of action within the meaning of Sec. 142(b) of the act - Held No. - A competent court can take cognizance of a written complaint of an offence u/s.138 if it is made within one month of the date on which the cause of action arises under clause c of Sec.142 gives it is a restrictive meaning - it is the failure to make payment within 15 days from date of receipt of notice which will give rise to cause of action - Cause of action within meaning of Sec. 142 (c) arises and can arise only once - impediments which negate concept of successive causes of action- Held.:

On each presentation of the cheque and its dishonour a fresh right and not cause of action - accrues in his favour. He may, therefore, without taking pre-emptory action in exercise of his right under clause (b) of Section 138, go on presenting the cheque so as to enable him to exercise such right at any point of time during the validity of the cheque. But, once he gives a notice under clause (b) of Sec. 138 he forfeits such right for in case of failure of the drawer to pay the money within the stipulated time he would be liable for the offence and the cause of action for filing the complaint will arise. Needless to say, the period of one month for filing the complaint will be reckoned from the day immediately following the day on which the period of fifteen days from the date of the receipt of the notice by the drawer expires.

No action taken on the first notice - cheque presented again - second notice sent - on failure to receive money case filed on the basis of second notice - Acquittal on ground that there could not be more than one cause of action in respect of a single cheque - sustainable - Appellant had earlier taken recourse to clause (b) of Sec. 138 but did not avail of cause of action that arose in his favour u/s. 142(b) of the Act.

Approved: S.K.D. Lakshmanan Fireworks Industries v. K.V.Sivarama Kirshnan (1995 Cr.L.J. 1384)
Overruled: Kumaresan vs. Ammerappa (1991 (1) K.L.T. 893)

Therefore it is essential that the notice should be perfect and in conformity with law. A mistake in the notice will be fatal. It is common mistake committed by most of the payees that as soon as the cheque is returned unpaid to write a letter to the drawer threatening him that in case he does not pay against the dishonoured cheque legal action will be taken etc. Such letter will also be construed as a notice.

Since a second notice cannot now be issued on the basis of subsequent dishonour of cheque, due care and caution should be taken while sending the notice on dishonour of cheque.



anuradha


independent lawyer
[ Scorecard : 45]
Posted On 31 August 2009 at 15:53 Report Abuse

But sir i have already issued the notice, so the second notice shall not be considered isnt it.  But if the accused does not receive it then can something be done?  that is if it returns as "un claimed"  or Is it that ultimately the case is lost and cannot stand legally is it?



anuradha


independent lawyer
[ Scorecard : 45]
Posted On 31 August 2009 at 15:57 Report Abuse

Sir, I request u to comment on it. IF the first notice returns as
"un claimed"  can i reissue  the notice second time. And shall it be a legal notice?



PARTHA P BORBORA


advocate
[ Scorecard : 2420]
Posted On 31 August 2009 at 17:21 Report Abuse

yes, if the notice retuned to u unserved, you can present the chaque again if it bounces you may send another notice. in that situation the second notice shall be considerd as "first notice". but u must present the cheque within 6 monts from the date of issue of thge cheque.



anuradha


independent lawyer
[ Scorecard : 45]
Posted On 31 August 2009 at 17:54 Report Abuse

thanks a lot Sir, hope it works.

Regards,

Anuradha.

 



Shivasurya


Lawyer
[ Scorecard : 571]
Posted On 04 September 2009 at 13:05 Report Abuse

Hi Anuradha, as per your querry, the cheques were dishonored on 29 July 2009.  i want to know that on what date your client got intimation of the dishonor of those cheques from his/her banker ? if your client got intimation from his/her bankers on next day i.e. 30th July 2009, your notice dated 29-08-2009 is within limitation. there is no necessary to represent the cheques after the notice returned unclaimed you can straight away file complaint u/s.200 Cr.P.C. against the accused 



anuradha


independent lawyer
[ Scorecard : 45]
Posted On 04 September 2009 at 14:22 Report Abuse

Hello Mr. Shivasurya, The client got the intimation of the dishonor of the cheques on the same date and also received them from the bank on the same date i.e. 29 July 2009.



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