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Kolkatta_user (engineer)     04 October 2011

Contents of notice in legal notice..

Dear Sirs,

I have a cheque from my business partner and it had bounced when I presented.  I sent a legal notice through an advocate in Pune.


At the time of sending notice, we are not sure of old (Year 2009) transactions whether they were done via cash/cheque.  But we are sure of year 2010 transactions, so we mentioned about year 2010 in the legal notice . But we said 'over the time' money was given. The remaining details such as cheque number, amount, date when presented and bounced etc all are correct.

Partner had replied to my notice saying only part of the money was taken (what ever is taken in year 2010 amount) and complained that the rest  is not taken, and so he is not liable to honor the cheque. 


Now after seeing old bank statemnets, we found out that there are two more cheques paid in 2009.  So question is can we show those also as proofs in the Court when the case comes to hearing. ? Or Court will not consider old proofs because that is not mentioned in the legal notice?

Any rules on what should be the contents of the notice about the details of money lent  to the accused (when and how amount etc)?

Do we need to mention it correctly or Court will not consider those as long as demand is made for the payment of amount for which the cheque is drawn through the legal notice?

While filing the case can I also include 2009 and 2010 payment details and show it as proof and prove that he is lailble to pay me that money for which he has written cheque with his own hands and signed? 

Please advice..
 



 17 Replies

ajay sethi (lawyer)     05 October 2011

you ahve in legal  notice mentioned over period of time payment was made . in reply accused has denied and stated only part of payment was made . you cna in complaint mention detailed particulars  when payments  were  made . what is important is total maount mentioned in cheque dishonoured should tally with payments made by you to accused .

1 Like

chandramouli (practice)     05 October 2011

Section 138 is very clear that the cheque should have been given in discharge, in whole or part, of any debt or liability. If you are not able to prove debt or liability then 138 will not apply. You have to prove to the satisfaction of the court that there existed debt or liability equivalent to the cheque that was issued and that got bounced. The onus is on you to prove the debt or liability equivalent to the cheque.

Kolkatta_user (engineer)     05 October 2011

Dear Ajay Sir,

The amount exactly doesn't tally as some amount is given via cash.

But there is definitely some  more amount  given via cheque in year 2009 which is not mentioned in legal notice. 

For example, cheque is for 10 Lakhs which is bounced.

2010,  through cheque I paid 6 lakhs.

2009 Through cheque I paid 2 lakhs.

Remaining 2 lakhs cash paid ( no prrof for that)...

He is claiming only 6 lakhs is given...

I can show the 2010 and 2009 cheques (total 8 lakhs) and prove his claim is false?

 

Please advice... 

Shrichand Nahar (Advocate)     06 October 2011

A notice under section 138 NI essentially mandates demand of amount of dishonoured cheque within prescribed period.

 

In case there are some errors in respect of other matters like details or dates of payments, which was to be repaid by dishonoured cheques, then same could be rectified during filing petition of complaint.

Kolkatta_user (engineer)     07 October 2011

Thank you Sir, does anyone disagree to the point that

"In case there are some errors in respect of other matters like details or dates of payments, which was to be repaid by dishonoured cheques, then same could be rectified during filing petition of complaint."

 

Please respond.....


 

DEFENSE ADVOCATE.-firmaction@g (POWER OF DEFENSE IS IMMENSE )     07 October 2011

No rectification / amendments allowed. If basic departure from notice to complaint it is fatal.

 

 

Any case of cheque bounce  (NI 138)  can be won by the accused if diligently is perused from initial stage. It is  a myth that once a cheque is bounced conviction is imminent since the complainant has to pass many many and many legal hurdles to achieve this. Accused suffer only due to guilt complex and initial lethargy .

Kolkatta_user (engineer)     07 October 2011

JSDN Sir,  the amendement described above may  NOT be fatal since the petiioner can/willing to show the valid proofs (as they are cheque payments) to the court, do you agree Sir?

Kolkatta_user (engineer)     07 October 2011

If your stament about "rectifications is not allowed" is true, It is very SAD that there is no way we can add/correct the details which were there in notice when we are filing the complaint.  Are you doubly sure?

Other senior/experienced experts, any inputs..? Please share....   

DEFENSE ADVOCATE.-firmaction@g (POWER OF DEFENSE IS IMMENSE )     07 October 2011

Why sad , the other side has also rights , you are not allowed to have a roving trial.

 

 

Accused of Cheque bounce cases please note that it is offence under NI act , but you can come out of it.
1)      Complainant in over confidence makes mistakes in giving notice, framing pleadings in complaint and documentary evidence.
 
2)      You can take advantage of these mistakes by timely action and expert cross examination.
 
3)      Courts can not give decision beyond documents, pleadings and result of cross examination. So accused should be ready and prepared to fight at every step.
 
4)      You have to be alert from day one once the time slips no body will listen to you.
 
5)      There is limited scope in revision and appeal to higher courts unless there is basic flaw so be prepared to contest with full efforts at trial stage.
 
6)      You must take and use not only expert but hard working legal assistance from beginning , normally most people do the reverse and than suffer.
 
7)      Many people suggest dismissal and quash applications to higher courts , which are not entertained . Once the process is issued you have to face trial. But there are sure and simple methods to come out of any NI 138 case.
 
8)      If you want to take advantage of our advice please send all the papers at first instance.
 
9)      You sould engage a local advocate to run the case for regular routine  and we will guide you what steps to be taken at which stage and where.

Kolkatta_user (engineer)     11 October 2011

I came to know that there are many instances where court had accepted some modifications (especailly when there is ambiguity) between legal notice and the actual case statement at the time of filing and hear it and honor it, when there are enough proofs based on the case to case...

DEFENSE ADVOCATE.-firmaction@g (POWER OF DEFENSE IS IMMENSE )     11 October 2011

It is not correct, there will always be other side and his advocate. It is not allowed.

Kolkatta_user (engineer)     11 October 2011

In general, I understand, but what if accused/defence-advocate also makes mistakes in the reply such as

"At no point of time in my life, my client was in need of money and had taken money from anyone". Petitioner had proofs to say that accused has take money earlier.

 

DEFENSE ADVOCATE.-firmaction@g (POWER OF DEFENSE IS IMMENSE )     11 October 2011

it does not happen in real court cross or trial.

Kolkatta_user (engineer)     12 October 2011

That was the situation in a real time case.

Accused deneid that he has taken earlier money  by the follwoing stament in the reply to notice 

"that I was never in any financial need (other than current year amount to which he as agreed)",

 

but based on proofs, petitioner's advocate can plead that it was not correct as some money was given earlier.  


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