2nd Notice under sec 138 NIAct

Querist : Anonymous (Querist) 24 October 2010 This query is : Resolved
2ND NOTICE WITHOUT REDEPOSITING THE CHEQUE AS 1ST NOTICE NO PROOF OF RECEIPT.

I was working for a company before hospitalization after Heart Attack. Company refused to pay my dues till I repay my Loan – and insisted to hasten the installments / prepay part of the loan. I agreed to their suggestion.
Director of the Company visited my residence along with a guarantor to collect the Current cheque dated 13.09.2010 in lieu of total of 6 installments which were due 15.12.2011 onward and another 11 installments and issued two cheques dated 13.09.2010 for a value of part of Debt from my debtor and one cheque dated 15.09.2010 issued by a guarantor for balance due, with the verbal promise that they will encash the current cheque s after credit is received in my account in the bank.
They encashed my current cheque on 14.09.2010, But stopped the payment of all the three cheques. When approached they insisted that I pay current cheque for balance of Installments and then only they will consider my request to pay my dues.
After waiting for two weeks I re-deposited two cheques issued by company – got it bounced/ collected Bank Memos. I also visited my Bank for Conditional Stop Payment, but on insistence by Bank issued simple stop payment instructions for 11 PDC issued by me. To safeguard my interest I prepared the letter addressed to Company to inform them the decision of Stop Payment of 11 PDC issued by me giving reason i.e. their failure to pay me i.e. details of dishonour of 3 cheques and demanded the payments, were mentioned in the letter dated 29.9.2010.
I am aware that letter was delivered to company on 6.10.2010 – but till today I have not received the Acknowledgement slip i.e. I did not have a proof of receipt of notice.
I got issued one more notice – prepared by a qualified lawyer on 19.10.2010 – demanding payment of two cheques.
My question is
1) Whether my case get in validated due to issue of two notices ?
2) If 1st notice is received by the company – but in absence of any proof as regard to proof of service – I will be constrained to file the case based on 2nd notice. Whether accused can exploit this situation?

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Devajyoti Barman (Expert) 24 October 2010
1. f the accused does not disclose the first notice then no problem.
2. Yes you can.

adv. rajeev ( rajoo ) (Expert) 25 October 2010
I agree with Barman.

Khaleel Ahmed Mohammed (Expert) 25 October 2010
I agree with Berman.

s.subramanian (Expert) 25 October 2010
I disagree.The first notice itself has given you the cause of action to prosecute. You had no need to issue the second notice at all. When you have not chosen to prosecute on the basis of the first notice,it is not open to you to do it on the foot of the second notice and it has been specifically disapproved by the Supreme Court of India.

DEFENSE ADVOCATE.-firmaction@g (Expert) 25 October 2010
It is complicated case , unless you can prove the liability is legal no solution.Since you say that you have to pay to the co and than your dues will occur.

Querist : Anonymous (Querist) 25 October 2010
Thank you all. Review the details once again in light of following:
We have given 2nd notice without redepositing the cheque as cheque was redeposited before issue of 1st notice.
As our right to deposit cheque again and again was closed after issue of 1st notice dated 29.09.2010 - cheque is not re-deposited after issue of 1st notice.
1st notice valid as issued immediately and 2nd notice is also valid as sent before expiry of 30 days from date of Memo issued by bank.
2nd notice is issued only after receipt of letter from Postal department that they are trying to locate the communication.
We have till date 25.10.2010 - not received the acknowledgement for 1st notice - we might be constrained to file a case based on receipt of 2nd notice – as receipt is essential.
Only service of notice is not enough. Receipt of notice (or refusal to receive notice) is IMPORTANT. If we don’t receive the confirmation / or refusal for 1st notice we can submit the case papers – based on 2nd notice acceptance may be not waiting for 30 days after expiry of 15 days of receipt date of 2nd notice – to ensure that case is filed neither premature or limitation.

Raj Kumar Makkad (Expert) 25 October 2010
Mr. in the light of subsequent submitted facts by you, I am of the considered view that the limitation in your case expires on 25.10.2919 and t is not mandatory to have the refusal or acknowledgment of notice. Merely sending th notice through registered post within limitation is sufficient. There is no any provision in support of your contention that the actual delivery of notice is must. Law is otherwise. It is presumed that notice has been received to the addressee if no response has been received from his time. Second notice cannot enlarge the limitation in your case though the same was issued within a period of 30 days of knowledge of dishonour of relevant cheques.

Devajyoti Barman (Expert) 25 October 2010
Yes

SAANJAAY GUPTAA (Expert) 26 October 2010
Write a letter to the post office regarding the service of the notice and file the case on the basis of the first notice and if it is time barred then filed a petition u/s 142(b) of n.i .act along with petition for condonation of delay. any cognizance on the second notice is bad in law as stated by Mr.Subramanian.

2nd Notice under sec 138 NIAct

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