Ni 138 case
CreateGoodwill
(Querist) 07 March 2012
This query is : Resolved
one of my dealer chq got return with reason
"REFER TO DRAWER"
1. can i file NI 138 case
2. what is the meaning of this return remarks
ajay sethi
(Expert) 07 March 2012
yes you can file complaint under section 138 of NI act . refer to drawer means the party that has issued cheque It is often used when the balance in the account is insufficient to honour the cheque. It is more a sophisticated term for insufficiency of funds
SAINATH DEVALLA
(Expert) 07 March 2012
Dear Mr.Amit,
Yes, you can certainly file a case under section 138/ NI Act.Engage an eficient advocate who is well versed with NI Act.Every thing depends on the initial legal notice you issue to the your dealer.Refer to drawer means many technical terms.
CreateGoodwill
(Querist) 07 March 2012
Thanx Mr.Sethi and Mr.Sainath for your immediate response
Dear Mr.Sainath
many technical terms .. can u please brief
SAINATH DEVALLA
(Expert) 07 March 2012
Dear.Amit,
NI Act is itself full of flaws.There are many loopholes in it.Technical terms mean,it could be insufficient funds or date altered or difference in signature or something altered but not attested.
Deepak Nair
(Expert) 07 March 2012
Well advised.
Agree to the views of experts above.
Nadeem Qureshi
(Expert) 07 March 2012
Dear Mr. Amit
i agree with Mr. Sethi
DEFENSE ADVOCATE.-firmaction@g
(Expert) 07 March 2012
Yes Mr Devalla this is what defense experts do to find faults because whatever you provide in law every thing can not be specified.
REFER TO DRAWER can not be presumed to be insufficiency of funds.
Shonee Kapoor
(Expert) 07 March 2012
I also agree with Ld. Sethi.
Regards,
Shonee Kapoor
harassed.by.498a@gmail.com
R.K Nanda
(Expert) 07 March 2012
1.Yes.
2.It means cheque has bounced.
SAINATH DEVALLA
(Expert) 07 March 2012
Dear Mr.JSDN,
When you are fighting the case on behalf of the accused,you have to search every minute word technically so as to prepare a good defence.You have to do justice to your client whether he is a complainant or an accused.Mere words refer to the drawer,in this particular case also raises a lot of questions for which answers have to be invented.
Now Mr.Amit you can be rest assured of your success and proceed further using the services of an effective lawyer.
DEFENSE ADVOCATE.-firmaction@g
(Expert) 07 March 2012
Still you seems to be with complainant , well I work only for accused and so my point of view is only from the side of accused.
It is easy to agree but real test is to get results in actual court room.
SAINATH DEVALLA
(Expert) 07 March 2012
Mr.JSDN,
Kindly don't misunderstand my reply.I said we have to do justice on whose ever behalf we are representing. The final outcome will always depend on our preparation of the case and agruments and the Hon'ble magistrate.
I will give you a small example.
I was argueing on behalf of an accused.During cross examination of the complainant by me,I was keeping on stressing on the contents of the cheque. As it was not written by my client.I was keeping on pouring on questions on different aspects of the contents on the cheque and suddenly the complainant shouted Sir, I have not done any alterations on the cheque,but it was written by my brother.I won the case that day itself,without any further adjournments.
My attitude is entirely different when I am representing the complainant.
Sankaranarayanan
(Expert) 07 March 2012
Well so many view of opinion given by experts. Simple you are eligible to send legal notice u[s 138 NI act
DEFENSE ADVOCATE.-firmaction@g
(Expert) 07 March 2012
Very good Mr Sankar to close the matter.
Well I have posted many queries which are actually faced in court room related to cheque CASES and I could not get any answer from any body.
Hear again I giving a related query about cheque cases. The cheque law says FINE UPTO TWICE THE AMOUNT OF CHEQUE but u/s 29 (2) there is limitation of FIVE THOUSAND ONLY for imposing fine be a JMFC OR MMFC.
Arvind Singh Chauhan
(Expert) 07 March 2012
I do Agree with JSDN as- REFER TO DRAWER can not be presumed to be insufficiency of funds.
It is not clear what does it mean and technically you may loose case.
It is better to present it to bank again and get the actual reason of non payment by the bank.
Raj Kumar Makkad
(Expert) 07 March 2012
I do agree with arvind. It is better to re-produce the cheque for collection.
Raj Kumar Makkad
(Expert) 07 March 2012
I do agree with arvind. It is better to re-produce the cheque for collection.
Guest
(Expert) 07 March 2012
Really, strange, if some one thinks as if he is defending the accused, while the querist has sought impartial opinion of experts how to solve his problem. I wonder, if any question about accused or defendant arises in answering his query.
DEFENSE ADVOCATE.-firmaction@g
(Expert) 07 March 2012
Dhingraji you put your attention to my query for complainant given above and reproduce again-
Hear again I giving a related query about cheque cases. The cheque law says FINE UPTO TWICE THE AMOUNT OF CHEQUE but u/s 29 (2) there is limitation of FIVE THOUSAND ONLY for imposing fine be a JMFC OR MMFC.
Guest
(Expert) 07 March 2012
Dear JSDN,
I hope you would like to agree that here, if some querist comes for help to solve his query, the question whether he is accused or defendant should not have arisen. Naturally, he would expect impartial reply to his query, as per the knowledge of the expert, irrespective whether the querist is accused/defendant or plaintiff.
His simple query was on two points, as follows:
1. can i file NI 138 case
2. what is the meaning of this return remarks.
Naturally, besides asking whether he can file case under NI 138, as a layman, he desired interpretation on the term "refer to drawer." That was nor about sec 29(2).
Hope I am clear about my understanding on the question.
V R SHROFF
(Expert) 07 March 2012
if you are asked to "REFER TO DRAWER"
you "REFER TO DRAWER", sending legal notice.
get reply.
After it you may decide your steps, as you have over 5 months/ 2 months to do needful.
Kirti Kar Tripathi
(Expert) 08 March 2012
I agree with Srinath, Arvind. the term as used by Bank in honoring the cheque i.e "REFER TO DRAWER" itself is ambiguous. It does not necessarily mean that the same was dishonored due to insufficient of fund or exceeding limit. Section 138 itself says as
Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall without prejudice to any other provisions of this Act, be punished with imprisonment for 2["a term which may extend to two year"], or with fine which may extend to twice the amount of the cheque, or with both:
Thus before filing the case ensure that it relates with the ingredients mentioned in Section 138.
C. P. CHUGH
(Expert) 08 March 2012
Dear Expers,
It really amuses me to see so much of debate on a simple querry.
Well in Banking Term "Refer to Drawer" is normally mentioned in cheque return memo where the drawer has made overdraft arrangement with the Bank and on confirmation from the drawer the same could be honoured, even when there are insufficiency of funds. Depending upon the relationship with the client Bankers do use different language while returning a cheque. For example :
1. In a normal current account, they invariably mention " Insufficient Funds"
2. In case of a Cash Credt/OD account of a non-priority customer, it culd be "Exceeds arragements"
3. In case of priority customers it is usually "Refer to Drawer"
While in 1st and 2nd case the reasons are blatant in 3rd case it is sofisticated.
While all the three reasons means the same and attract provisions of section 138 of NI Act.
C. P. CHUGH
(Expert) 08 March 2012
PS.... And Yes, apart from insufficiency of funds there could be other reasons also in case of "Refer to Drawer" like
1. Cheque is not signed by authorised person.
2. Cheque is signed by a persons who does not hold authority to sign beyond a certain financial limit.
3. More than one signature are required on a cheque while there is only one signature of the drawer.
And well said, in all cases of " Refer to Drawer" it necessarily does not mean that there is a insufficiency of funds or it exceeds arrangement.
Thanks
C. P. CHUGH
(Expert) 08 March 2012
Dear Mr JSDN,
Well I am noth worthy of answering your querry when the xperts have been conscious of not replying, yet i would try to do so as under :
Truely the JMFC or MMFC have powers to impose fine upto Rs. 5000.00 only and section 142 of the NI Act, does not enhance powers of a magistrate in respect of fine. Pankajbhai Nagjibhai Patel Vs State of Gujrat 2001 CrLJ 950 SC.
But the powers of a magistrate to award compensation to the complainant u/s 357 CrPC are unlimited (restricted upto twice of the cheque amount by virtue of section 138) Pankaj Bhati....... (supra)
I do not know whether i have been able to answer in the right spirit or whether i am correct in my view point. Pls ignore my reply if i do not hold the appropriate view of the Law and would like all of you to correct me.
Thanks and regards to all
DEFENSE ADVOCATE.-firmaction@g
(Expert) 08 March 2012
Yes that is ambiguity in law that fine can not be imposed more than FIVE THOUSAND.
Compensation is different and admittedly there is no limit.
