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NARESH . K . WADHIA (MAINTENANCE ENGINEER )     07 June 2010

CHEQUES BOUNCED

Dear  Sir ,

My cousin had given a loan to a person to the tune of Rs : 4 lacs somewhere around 2001 for some business venture. The venture didnot progress well  & my cousin asked for the refund of the loan . The loan was not refunded,  as a result of which he committed suicide . After his suicide in 2004, his wife (my sister-in-law) had approached the borrower several times to return back the hard earned money . But till date no results.

She had even approached police in Nov-2009 . This resulted in the borrower agreeing  to give Post dated cheques to my sister-in-law.

Recently in JAN-2010 the borrower had given six postdated cheques, each of Rs: 25,000/- to my sister-in-law. She deposited the first cheque on 30/01/2010 which bounced & another on 30/03/2010 which also bounced due to "FUNDS INSUFFICIENT". This was brought to the notice of the borrower wherein he promised to give the amount in cash, but till date no results. We had even sent a letter to the borrower stating the facts & the implications of cheque bouncing (as per Negotiable Instruments Act) which could result in legal action but it seems that he is least bothered and has not taken it seriously.

As such please guide as to what is to be done next. Also please note that my sister-in-law, a widow , is aged 40 years & do not have any children, as such this is the only savings she has, but that too is not in her custody & the harassment for taking her own money still continues. She doesnot have any one else to support her in this fight against injustice.

REGARDS
NARESH K WADHIA



Learning

 8 Replies

H. S. Thukral (Lawyer)     07 June 2010

You did not get the proper legal advice in time and in the circumstances have lost a valuable right to proceed against the borrower under Negotiable Instruments Act on casue of action accruing on two bounced cheques. If you deposit other cheques and  if the same bounce for insufficient funds or otherwise, seek immediate help of a legal advisor. There is time limit for action. You can file recovery suit for the amount involved in two cheques. Please note that criminal complaint under section 138 NI Act is not a bar for simultaneous proceedings under civil law.  Therefore while proceeding against the borrower in criminal law,  if other cheque bounce, you can file the recovery suit also.  But do consult a lawyer for proper guidance.     

Rakesh Shekhawat (Advocate)     07 June 2010

I am completely agree with Shri Harbhajan Singh Thukral. Ur sister-in-law should approach a lawyer within time.


(Guest)

NANDKUMAR B.SAWANT.M.COM.LL.B.(MUMBAI),ADVOCATE

MOBILE.9271971251, 9960223100

REGARDING THE CHEQUE DISHONOUR MATTER KINDLY NOTE THAT.

1.KINDLY ARRANGE TO DEPOSIT ALL CHEQUES FOR CLEARING .AND IN CASE OF DISHONOUR OF SAME ISSUE LEGAL NOTICE UNDER SEC 138 OF NEGOTIABLE INSTRUEMENTS ACT WITHIN 15 DAYS OF DATE OF DISHONOUR.

2IN CASE AMOUNT OF CHEQUE IS NOT PAID WITHIN 15 DAYS OF SERVICE OF NOTICE THEN FILE A CASE IN CRIMINAL COURTS UNDER SEC.138 OF N.I.ACT.

3IN THIS CASE TWO CHEQUES ARE ALREADY DEPOSITED IN MARCH ,BUT LEGAL NOTICE IS NOT ISSUED HENCE KINDLY REDEPOSIT THE SAME AND THEN ISSUE LEGAL NOTICE AFTER DISHONOUR OF SAME.

4.YOU MAY ALSO FILE A CIVIL SUIT FOR RECOVERY OF ENTIRE AMOUNT DUE.PLEASE NOTE .

KINDLY WRITE AND SEND DETAILS FOR FURTHER HELP .

THANKS.

adv. rajeev ( rajoo ) (practicing advocate)     08 June 2010

Negotiable insurument act is very tecjnical one.  You have to follow the procedure otherwise case will be dismissed.

Without consulting an advocate you have issued a letter to borrower, it is your mistake.

NI Act says that:

within one month notice has to be issued to the person who issued a cheque to make the payment of cheque amount within 15 days from the date of the receipt and after completion of 15days within one moth case has to be filed.  But you have not followed the procedure, so you cannot file a criminal case u/s 138 of NI ACt.

You got for the civil suit for recovery of money. but you will have to pay heavy court fee.

ASIT KR ROY (Advocate )     08 June 2010

Sir

In cheque dishonour case Legal notice shall be given within one month (not within 15 days).

Furthermore, one month means total days of that month, not 30 days.

in case of February, within 28 days ....

in case of January 31 days.....like this.

Thanks,

Asit Kumar Roy

for Legum Consultants

www.legumconsultant.com

YOGESHWAR. (ADVOCATE HIGH COURT-criminal /civil -youract@gmail.com)     08 June 2010

Very good Mr Roy regarding your explanation except that the act amended as on todays says THIRTY DAYS  not one month. So notice has to be issued within thirty days of  KNOWLEDGE of bounced cheque.

amarendra (lawyer)     08 June 2010

according to me she has no other option but to file a suit for recovery of loan amount , facts narrated  by mr. naresh even if cheques have been dishonured may not attract penal provision u/s 138 n.i.act

ASIT KR ROY (Advocate )     10 June 2010

File case Under section 138 of N.I. Act forthwith.

If time expired, file civil suit (Under order 37 CPC)

Must file a criminal case U/S 200 and application U/S 156(3) CPC and ask court

for a direction to register FIR. This is more important.

Asit Kumar Roy

Advocate

www.legumconsultant.com

0-9871939596


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