rahul saxena (advocate) 11 January 2012

Representment of cheque during notice

dear team,

brief of topic is - first ch. bounced on dtd x and notice u/s. 138 was issued to complainant. after issuing notice, Accused took complant into confidence and complainant again represented the cheque on dtd y and got bounced.no notice issued. complaint u/s. 138 was filed before the court on the basis of first ch. bounce dtd x i.e. when couse of action arise.

now court has objected that complaint is not valid as it should have been filed after ch. bounce dtd. y and going to reject. is there any case law that can avoide dismissal.

regards

rahul

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6 Replies

Shonee Kapoor (Legal Evangelist - TRIPAKSHA) 13 January 2012

The court is right/

You should have issued a fresh notice.,

Regards,

Shonee Kapoor

harassed.by.498a@gmail.com

Advocate Bhartesh goyal (advocate) 17 January 2012

No complaint u/s 138 of N.I.Act is maintainable on the basis of second notice.File summary suit tfor recovery of cheque amount.

R Trivedi (advocate.dma@gmail.com) 19 January 2012

It is very clear that under this section cause of action cannot be created twice, so second notice is ruled out. If you have filed the case based on first notice, then court has no reason to object to the same, if it was well within time limit. Possibly from the date of notice to filing the case you tried your luck. You can always aver that complaint asked you to present the cheque again and in any case cause of action is stated in the first notice only. Subsequent dishonor after the first notice, does not kill the first cause of action, if you do not issue the fresh notice. Tricky situation, court may accept if argued well. Otherwise Order XXXVII, which is much faster.

rahul saxena (advocate) 20 January 2012

dear all, thanks for reply, let's see what will happen?

Shonee Kapoor (Legal Evangelist - TRIPAKSHA) 23 January 2012

All the best.

Regards,

Shonee Kapoor

harassed.by.498a@gmail.com

R.Ranganathan (Advocate) 10 February 2012

I agree with Mr. R.Trivedi. Notice under Sec 138 NI Act is given asking the borrower to pay the cheque amount within the time stated therein. So the person has time to pay the same either in cash or by any other means and clear the cheque amount. When that person takes the complainant to confidence and says he will honour the cheque when represented then the complainant can represent it and also report the same when called for in court with sufficient proof.