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138 n.i.act

(Querist) 22 June 2013 This query is : Resolved 
Hello Madam/Sir,

I am Naveen Kanth a practising Advocate in Hyderabad. I have some queries regarding the Dishonour of Cheque U/s 138 of the N.I.Act.


1. A case has come to me of 138 N.I.Act, in that some Advocate has sent a legal notice to the Accused, with some typographical mistakes, like the notice date should actually be 19th March 2013, but it was typed as 19th March 2012.
Can that be accepted in the court of Law?
Are there any citation of the same?

2. After sending the legal notice and the same was received and acknowledge by the Accused, but not replied, the Cheque was bounced for the third time.
How far is the winning situation of the case? Can the cheque be bounced after sending a legal notice?

3. Can i take the plea that, i issued a legal notice on the 19th March 2013 and gave the Accused 15days time to settle the amount, and instead of sending a reply notice, the Accused had orally requested to deposit the cheque for the third time on 17th April 2013.

4. The Cheque was dated 5th feb 2013, and the last bounce was 17th April 2013, can i file the case now, coz the legal notice was already sent, before the third bounce?

5. Or shall i ask the Complainant to bounce the Cheque for the 4th time, so that the limitation of the cheque will be increased? Can it be possible?

6. Or can i send a legal notice for the Second time, as the cheque was again bounced for the third time.
How far it is relevant to send a second legal notice? Will that sustain in the court of Law.

Plz suggest me.

Thank You,


Naveen Kanth
ADVOCATE
prabhakar singh (Expert) 22 June 2013
1.Typographical mistake would be possible to prove by receipt of registration or speed post and service acknowledgement.

2.Legally cause of action with respect to a cheque is recurring during validity period of a cheque,so notice can be sent for each bounce.

3.You can, however, there is no need so long it is a right.


4.A cheque dated 5th feb 2013 would be valid for presentation upto three months only.

The last bounce was on 17th April 2013 with respect to which notice of demand was required which has not been sent and time of notice on basis of said bounce appears to have run out now as it is june 22'2013.

5.you have been adventurous in dealing the cause.How can now you advice to present a cheque dated 5th feb'2013 for 4th time on 22 june 2013?

6.Forget criminal action u/s 138 N.I.Act.
Better file a summary suit of realization
after issuing notice of demand of principal & interest as damages for wrongfully withholding
money after it fell due on 5th feb,2013.
DEFENSE ADVOCATE.-firmaction@g (Expert) 22 June 2013
1) Even for summery suit if the defendant fails to apply within ten days after receipt of summons LEAVE TO DEFEND with reasons not just application than only you can expect relief.

Otherwise the defective notice will be a effective defense that the cheque was forged, fabricated.

2)Many accused or defendants ignore taking proper objection to notice.

Notice is secondary evidence since only a copy is submitted. So not only sending of notice but its contents have also to be proved.

Raj vs Khemraj is the landmark citation for secondary evidence and it is quoted by High courts when ever question of sending and contents of notice is raised.
ajay sethi (Expert) 22 June 2013
file summary suit on account of dishonour of cheque . even if Defendant files his appearnce and defends the suit at the stage of hearing of summons of judgement court would pass an order to depsoit the cheque amount or even decree the suit if you have a good case on merits
Rajendra K Goyal (Expert) 22 June 2013
Agree with the experts, presently the cheques are valid for three months only.
Chattopadhyay Arghya (Expert) 24 June 2013
s138 N.I.Act envisages criminal trial of the nature of summery procedures.

Summery recovery suit is also possible subject to limitation.

There are mistakes that can be rendered bottleneck issue by good twist. Cross examination would give jerk for some required conditions. all aspects must not be lost of sight. Anything is possible in cases in court.

But until supreme court decision in recent time favouring multiple cause of action on every bounce and after every issue of notice it could have been a good defense that after issue of notice no bounce permitted. Unfortunately I have analyzed the supreme court decision is in the name of enhancing legislative intention, but very much inconsistent with other scheme and legislative intention present in the vital issues and framework of the enactment. I have already drafted an analysis and supposed to submit for reiteration before some experts followed by competent authority who can act upon this or make reference.
prabhakar singh (Expert) 24 June 2013
May i state that a notice required for purposes of prosecution u/s 138 and one advised by me to be sent a fresh for recovery suit to claim interest on money wrongfully withheld or two different things.Such a notice is required in absence of agreement with respect to interest to claim interest from the date of notice,otherwise for a civil suit,the dishonor of cheque is sufficient cause of action and no notice would legally be required for suit.
DEFENSE ADVOCATE.-firmaction@g (Expert) 24 June 2013
MR ARAGHYA your views are laudable but even GOVT has exhausted all efforts to make cheque law effective and so decided to abandon it

So notice AND multiple notices are a very minor issue

Shri PRABHAKAR SINGH you are matured person of good old system which is vanishing now due to heavy load of mountain of cases and cases and being dealt with freshly recruited JUDGES.

I remember you had given some input about receipt of sending notices. Such receipts were issued in good old days by post offices. Now you do not get a postal receipt for regd letter as per case title .

So any notice which is not replied can be easily proved wrong that it was not sent to the person concerned since address on postal receipt is not proper. AND MANY OTHER RELATED ISSUES TO PROVE NO ACTUAL RECEIPT EVEN DEEMED BY THE CONCERNED PERSON.


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