138 ni act
Querist :
Anonymous
(Querist) 07 August 2011
This query is : Resolved
A cheque amounting to Rs 1,50,000 without dated and not indicating withdrawers name has been lost in the year 2008 and an information to this effect has been communicated to bank immidiatly. In the year 2011 (February) a person presented the cheque and that was dishonered after this he sent notice and the reply was given to him in April 2011. In August 2011 he filed a case and summon is received to appear in the court.
I want to know that this case is maintanable or not and whether this filing of suit is time barred.with due respect to all ld members
R.Ramachandran
(Expert) 07 August 2011
From the facts revealed by you, it prima facie appears that the case has been filed beyond the limitation period and therefore the case is not maintainable.
But, having received the summons, you have to put an appearance and raise your objections before the court.
Advocate. Arunagiri
(Expert) 07 August 2011
It seems that the holder of the cheque had filled in the date and amount.
The case is maintainable.
But, if you have any acknowledgement from the bank for intimating the loss of the cheque, you have a good defense in the court.
Raj Kumar Makkad
(Expert) 07 August 2011
AS replied earlier, the complaint seems barred by limitation so better you enquire it from court file and if it is confirmed then file a revision petition before Sessions Judge after obtaining anticipatory bail. Summoning order in that situation shall definitely be quashed.
M/s. Y-not legal services
(Expert) 07 August 2011
Ok. As of your statements you missed an empty cheque only, that also you informed to your banker. If its true mean, the reason should as STOPPED PAYMENT. Suppose if its dishonored as insufficient funds mean you can't take this grounds.
Out of Court
(Expert) 07 August 2011
Indeed the case u/s section 138 NI is not maintainable, but Civil suit for recovery is very much maintainable ... what is it ? .. provide us the copy of compaliant or suit whatever it is ..
M/s. Y-not legal services
(Expert) 07 August 2011
But here i can't accept with my senior mr.makkad and m/s. Out of court. Because the author saying that cheque was missed without filled the name and date. Are you thinking that the complainant will be deposited that subject cheque with earlier date? If my understanding is correct mean he will be filled the recent date only.. So its maintainable under n.i act.
M/s. Y-not legal services
(Expert) 07 August 2011
Dear author if your stated facts are true mean its very fit case for acquittal. By proving something before court of law you can succeed your case. Your cheque missed in the year of 2008. Then its very simple that collect the detail from your banker, the subsequent numbers cheques of the subject cheque were passed on which dates. Its will help to clear case. Thats will be very good ground for you.
prabhakar singh
(Expert) 07 August 2011
state the date and month of year 1998
Out of Court
(Expert) 08 August 2011
@ Tom Advocate.....
kindley avoid to post such kiddish things in this responsible portal .. it is very clearly stated that cheque presnted in feb 2011 , notice exchanged in April 2011 .. how can u file complaint u/s 138 in Aug 2011.. i think after april 31 days are there in may 30 days are in june and 31 days in july .. if u sum up these it is 92 days after notice ...
M/s. Y-not legal services
(Expert) 08 August 2011
Dear, mr.out of court cheque presented on february 2011. There date didn't mentioned. So with in 15 days from the date of return complainant have to issue notice to the accused. If its done mean the statutory period for giving reply to that legal notice should be with in march itself. I mean 15 days time. But here he issued reply notice in the month of april only. You didn't noticed that?
M/s. Y-not legal services
(Expert) 08 August 2011
Thats ok. Are you thinking that, its not possible to bring maintainablity for this case which is filed in the month of august? Ok am telling, you just answer me that whether am i right or wrong.. Cheque presented in the month of february.. Its have 6 months validity.. Are you thinking that second legal notice is not maintainable under n.i act?
M/s. Y-not legal services
(Expert) 08 August 2011
Mind one thing sir. I not intent to hurt you. I just talking about the possibilities. Thats all..
Out of Court
(Expert) 08 August 2011
Oh Mr Tom Adv... Indeed u are good in advice but herein i couldnt expect kiddish one from you, see complaint u/s 138 NI is very strictly followed if the complainint failed to issue legal notice within stipulated time period or failed to file compalin u/s 138 NI within 30 days of reciept of notice the cause of action specifically for U/s 138 expires but on the other hand cause of action for civil suit is valid upto three years ...look into procedure once again and the facts stated by Anonymous there is no mention of second presentation so there is no need of presumption of second presentation without exact fact given ...
DEFENSE ADVOCATE.-firmaction@g
(Expert) 08 August 2011
You can present cheque any no times within six months of issue but notice is once only, if notice issued for earlier bounce second notice is illegal.
The case on face of it is liable to be dismissed.
M/s. Y-not legal services
(Expert) 08 August 2011
Good evening mr. Out of court. Am agree my mistake.. Don't know where i jerked. First time i feel guilty for my wrong answer. Sorry author. Forgive me. Here i done two mistakes. First one, my misinterpretting on your message. Second one am tried to justify my careless. Sorry members.
M/s. Y-not legal services
(Expert) 08 August 2011
Dear author please omit my answer for this query. Just follow other members advise..
Out of Court
(Expert) 08 August 2011
@ Tom Advocate ... Bro its not ur mistake.. infact the query posted by Author is not presented in proper manner ...........
M/s. Y-not legal services
(Expert) 08 August 2011
Whatever may be sir. Am frankly saying. While your first reminding itself i realised my mistake. But my ego tempt me to justify my self. So i used the second notice weapon. Today fully i tried hard to find any one citation favour to second notice's maintainablity. But i failed. high courts approved second notice on some occasions. But supreme court automaticaly set aside the earlier order.
Out of Court
(Expert) 08 August 2011
ha ha ha .. but don't be amazed if u hear in near or distant future SC validating Second Notice in 138 NI as Law is subject to ammendments always based on circumstances..:P ..
