File case U/s 138
Ketan
(Querist) 10 February 2010
This query is : Resolved
Hi,
Is there a time limit in which i need to file a case u/s 138 after sending a notice???
It has been a month now but have not yet received the confirmation from the Registered AD about the receipt of the notice to the clients...
B K Raghavendra Rao
(Expert) 10 February 2010
Yes. NI Act is one act where time limit plays a very important role. After sending the notice, the accused (let us call him so for easy reference) has to pay the cheque amount to you within fifteen days from the date of receipt of the notice. If he does not, then he commits offence. You need to file complaint before the magistrate under Section 138 of NI Act, within thirty days from the date of completion of fifteen days.
If you have not received the AD slip from the postal department, never mind. Count a couple of days from the date you have sent the notice and file the complaint well within the time. Later on you may address a letter to the postal authorities to find out when exactly the notice was served on the accused. It is not necessary that you need to wait till you get the AD slip back from the postal authorities.
A V Vishal
(Expert) 10 February 2010
If the drawer does not pay the amount of dishonoured cheque within the grace period, a complaint thereafter should be filed within one month in the relevant court of Metropolitan Magistrate/Judicial Magistrate as the case may be, having jurisdiction.
Sukhija
(Expert) 10 February 2010
Yes,time plays major role for filing complaint u/s138. since one month is already over , now u shd file complaint within 15days.
Ketan
(Querist) 10 February 2010
K.. Thnx a lot... How long does the case get solved??? accused is based in Punjab nd I am in Mumbai... Is there a fast court relief?? i.e. the case solved in few months or is it ever going??? the Amount is 5 Lacs... and as i have been told that there is a Stamp charge i.e.2% and initial expence is 50000 charged.. what if the case gets prolonged and ultimatly i have to pay more fees than the value of the recovery itself???
Guest
(Expert) 10 February 2010
(1) The maximum stamp duty is only Rs.1,000 for any amount of cheque.
(2) Initial expense of Rs.50,000 generally won't be charged.
(3) The exact expenses and fees is between your lawyer-to-be and yourself.
(4) Your case will be solved on or before ................................................................
Guest
(Expert) 10 February 2010
What to do if a Cheque Owed to You Bounces?
Send a registered notice to the issuer, asking him to pay up within 15 days of receiving it. You can also demand interest charges.
If payment is not made within 15 days, file a criminal case under Section 138 of the Negotiable Instruments Act within one month. This is a criminal provision, so you can file an additional civil suit also.
If you are dealing with a company, send notices to the directors also. Threaten them with a case of cheating.
If nothing happens, file a case with police for cheating.
Opt for a summary trial if your papers are in place. You may not get damages, but you will get the basic dues within a reasonable time. But, consider stamp duty costs - they are high.
Approach a consumer court too. Use every possible option to put pressure on the issuer to pay up.
You will need to support your case with original documents or true copies or promissory note, stamped agreement, cheque, cheque return memo with bank's endorsement, debit advice of payee bank, the registered post receipt and acknowledgement card.
Adinath@Avinash Patil
(Expert) 10 February 2010
ALL ABOVE EXPERTS EXPLAINED IN DEATAIL I AGREE WITH ABOVE EXPERTS.
Raj Kumar Makkad
(Expert) 10 February 2010
I also agree with the detailed replies of various experts on this common subject.
Parveen Kr. Aggarwal
(Expert) 10 February 2010
The stamp charges of 2% does not seem to be apprpriate because for filing a complaint under section 138 of the N. I. Act no such amount is payable.
Section 143 of the N. I. Act provides:
(1) ........
(2) The trial of a case under this section shall, so far as practicable, consistently with the interests of justice, be continued from day to day until its conclusion, unless the Court finds the adjournment of the trial beyond the following day to be necessary for reasons to be recorded in writing.
(3) Every trial under this section shall be conducted as expeditiously as possible and an endeavour shall be made to conclude the trial within six months from the date of filing of the complaint.
B K Raghavendra Rao
(Expert) 11 February 2010
There is no stamp charge or court fee for criminal complaints including proceedings under NI Act. If your counsel is smart enough it should get over in about a year's time or it could drag on if the accused plays tricks.
