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Sanjaycase (service)     06 April 2014

Need experts inputs for my understanding

Couple of years before I entered in to a Notarized MOU with a small land development company and has given amount for purchase of plots under regular income buy back scheme. One proprietor signed the MOU and the other proprietor signed the postdated checks of buy back offer and interim income checks, which were issued to me. Later I found the company proprietors cheated number of folks in such offers and my check bounced back with reason "Funds Insufficient"

Meanwhile we approached police and a recorded a complaint under 420. The accused was arrested and later release on bail. Later I do not know if the proprietor any time opened company office or not.

In between I started educating my self about 138 NI Act and thanks to this forum which helped me to get basic awareness. I sent notice for payment on my own addressed as below

To

Company Name,

Company address as per MOU

Kind Atten: Name of Proprietors (A,B,C)

Respected Proprietors

Notice as per standard format.

 

The notice came back with postal remarks Left.

Then I approached a lawyer to take this case forward to file 138 case.

My lawyer is pointing out a gap in my later,

1) According to him I should have sent a separate note to Proprietors on their address as mentioned in court for bail to give them a notice. They are saying the accused can raise the hands that they did not received a notice as it was not sent to them but to company address which they have left.

I respect his knowledge and I understand I might have done a mistake, but I am not logically convinced.

My viewpoint is, I have entered in to MOU with a Company and proprietors sign it and even the checks were signed by proprietors and the check numbers are mentioned in the MOU. I have not done a personal agreement in this situation. Also there is absolutely no communication from proprietors since a complain of 420 was logged against them about the office operation or change in address. Hence eventhough they might have given the personal address during bail in 420 case, in my view when the check bounced I have sent the letter to Company office address which is as per MOU with Kind Atten as proprietors should suffix.

I am planning to make all 3 proprietors as accused in this case and I feel I should not be bound to send the letter on their personal address. I think as proprietors of company they should have provided written intimation if there is any change in address and they can not close office unless all matters are resolved.

I am debating this with my own lawyer and need your experts inputs to understand if I have done a mistake here.

Regards,

Sanjay



Learning

 3 Replies

Sanjaycase (service)     06 April 2014

Please read the point as below:

 

I sent notice for payment on my own, which was addressed as below.

 

Sorry for the typo.

Prasun Chandra Das (Banker)     08 April 2014

Please clarify - is this a Company or a partnership firm or a proprietorship firm? Companies have 2 or more "Directors", Partnership firms have 2 or more "Partners", and Proprietorship firms have only 1 "Proprietor". You have used Company with Proprietor so it is confusing,

 

Regardless of the above, Section 141 of NI Act says:

141.

Offences by companies.

 

141.(1)Offences by companies. If the person committing an offence under    section    138 is a company,   every person who,   at    the    time the


offence was committed, was in charge of, and was responsible to, the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly:

Provided that nothing contained in this sub-section shall render any person liable to punishment if he proves that the offence Was committed without his knowledge, or that he had exercised all due diligence to prevent the commission of such offence.

(2)Notwithstanding anything contained in sub-section (1), where any offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is attributable to, any neglect on the part of, any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly,

 

Explanation.-For the purposes of this section,-

(a)"company" means any body corporate and includes a firm or other association of individuals; and

(b) "director", in relation to a firm, means a partner in the firm.

 

Pls consult your lawyer with the above. You can always have a 2nd opinion if the lawyer is not very convinced in the beginning itself.

Sanjaycase (service)     08 April 2014

Thanks for your inputs Prasun Sir. As per the name it is company but MOU refers to individuals as proprietors. My question is if I have sent the notice to company with kind atten: Name of proprietors I have completed legal requirements of notice, is that correct ?

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