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Prakash (Director)     02 October 2011

Due date for notice and file a case 138 ni act

Hi,

Kindly clarify the following.

1. When cheque return uppaid, legal notice to be served to the party before 30 days, is it correct ?

2. if the Party is not responded to our notice before 15 days / 30 days i am not sure  but i come to konw that we should give 30 days time as per ammeded in NI Act 2003 and wait for reply for our notice, please clarify

3 Due date for filing case is not clear by our advocates,  they told us should be filied before 15 days if the party was not responded but i got informtion from internet information (some of  the legal firm) mentioned that 30 days from due date from party.

Hence, Drawee should have time to intimate to party 30 days and wait for 30 days for responce and file a case before expairy of 30 days  so, total 90 days from the date of cheque return.  Is it correct, Is there any amedment in NI Act in the year 2002 or 2003

Kindly clarify  and it will help  us lot.

Many thanks in advance.

Prakash.

 



Learning

 30 Replies

Advocate Bhartesh goyal (advocate)     02 October 2011

A  notice has to be issued within 30 days of cheque return asking hm to pay cheque amount wthn 15 days of receipt of notice.Failing to repay the cheque amount in above 15 days period  and after expry of above 15 days grace period complaint may be filed wthin 30 days in court.Thus maxmum period will be 75 days.

Narender Raj G (Advocate)     02 October 2011

 

Mr. Goyal is correct.

But I would like to give some more clarification.

The Notice under section 138(b) of N.I. Act has to be issued within 30 days from the date of information form bank, regarding to dishonour of cheque.

The drawer has got a right to pay the dishonoured cheque amount within 15 days from the date of receipt of Notice under section 138(b) N.I. Act.

If the drawer fails to do so, it becomes an offence punishable under section 138 of N.I. Act, after expiry of such 15 days period.

The payee has to file a criminal complaint before the competent Magistrate against the drawer of the cheque. If the cheque is drawn by any company or partnership firm, you can array responsible partners/directors as accused.

By virtue of 2002 amendment to section to 142 of N.I. Act., power to condone delay in filing complaint is conferred on the Magistrate, if any reasonable cause shown.

 

 

Advocate Bhartesh goyal (advocate)     02 October 2011

Thank you  Narendra  Raj G.

V R SHROFF (Sr. ADVOCATE Bombay High Court Mob: 9892432152)     02 October 2011

Narendra Raj G is correct,

I will like to clarify that : 

Complaint must be lodged within 1 month (not 30 days)  f the date of receipt of ur legal notice to accused. .

1 month may be 28 days or 29 days or 30/31 days depending upon the month of receiving the notice by accused. 

& in case of Delay, condonation is granted  in just cases

 

Dr.R.Stephen Louie (lawyer)     03 October 2011

Exactly as   Mr. Goyal & Narendra Raj have said. Follow the things said and get your money back. Also if you have any other Agreements for transactions see whether you can go for Arbitration as it is rather easier to get your money back-by Award and enforcement of it-quick and less expensive. NIA 138 is a punishment giving proceedure , not money gunanteed . Only civil or Arbitration  could help you out if you need money back. The accused, if afraid of 138 may return money otherwise he may get punished. If any advice needed contact me Dr. R.S.L. Advocate

Nadeem Qureshi (Advocate/ nadeemqureshi1@gmail.com)     03 October 2011

Dear prakash

When the cheque return unpaid, the time statrt now a 30 days time for send legal notice to other party and in which 15 days time to made the payment if the other party not paid the amount within 15 days of the receipt of the notice then within 30 days the complaint can be filed.

feel free to call me on 9953809956 or write me on nadeemqureshi1@gmail.com 

Amit Minocha (Lawyer)     03 October 2011

agree with Mr Narender Raj G 

Prakash (Director)     03 October 2011

Hi,

Thank you for your advice and your valueable time spent on this!!!

Here is the content of FAQ in  https://www.vakilno1.com/chqbouncing_qns.htm as per this, the time to be given to the accused 30 days for payment and file case with in 30 days / one month on the expiry of 30 days period of notice. 

What is the deference between cheque issued by an Individual or by Company under NI Act, i feel it should be the same ? 

Many thanks in advance

Regards

C.K.Prakash.

I have got my cheque dishonoured few months back. It was issued by a Company. What can I do now?

A. On the dishonour of cheque by the company you can file a suit for recovery of the amount under Order XXXVII of CPC. As you have stated that cheques were dishonoured few months back and you have issued no notice to the company bringing to their knowledge the dishonour of cheques and the life of the cheque is still valid which is usually six months from the date of issue. You please present the cheque again and on receipt of the information about the dishonour of the cheque you immediately issue notice within 30 days from the receipt of the information of dishonour of cheque to the company. If the company does not pay the amount within 30 days from the receipt of the notice, you can file complaint under Section 138 of the Negotiatble Instrument Act. The said complaint is to be filed within one month on the expiry of 30 days period of notice

Prakash (Director)     03 October 2011

Q5. I have blank cheques given to me by a partnership firm. Since they owe me some money which I had given to them as a loan. Besides the cheques and the statement of accounts. I do not have anything else. Suppose one day, I suddenly get to know that they have closed the partnership firm and dissolved it, Can I deposit the cheques now and legally raise a claim on them and how?

A. You should fill the cheques and present for encashment. The Partnership Firm as well as partners are personally liable and even after dissolution also the firm and partners are liable. Once the cheques are dishonoured you have to file a suit for recovery of the said amount under the summary procedure provided in Order 37 of Code of Civil Procedure, 1908. You should also file a complaint under Section 138 of the Negotiable Instruments Act. For this you will have to first give a notice, within 30 days of the dishonouring of the cheques. Then if payment is not made within 30 days of receipt of notice a complaint has to be filed within 30 days thereafter.

Prakash (Director)     04 October 2011

Hi,

Please clarify any one of the above, it will help me lot to take further steps

Prakash.ckp.

Pranav S. Thakkar (advocate)     05 October 2011

Now, i make some more clarification to the interpretation that 30 days are to wait for party make payment is made. But it is not compulsory to wait till 30 days. if u see that the party given cheque not agree to make any payment by oral request, u can send notice also after 25 days of the date of the memo of dishonoured cheque returned. Even After sending Notice  u find that the party not paying attention to you in 10 days and deny to make payment u can file a complain after 10 days of notice. So, It  is prvosion to faciliate u. So, It depends to the drawer if he is agree to make payment to you or not?

 So. take care!

Prakash (Director)     06 October 2011

Hi,

Thank you for your update and can you confirm the due date for filing if the cheque returned.

in case if
1. cheque returned on 15th July 2011
2. legal notice sent on 12th August 2011, received by the party on 15th August 2011.
3, In Notice given time 15 days for settlement.
4 When is the due date for filing and if it is delay, what are the possiblity to file a case.

Regards-Prakash

Pranav S. Thakkar (advocate)     06 October 2011

Mr. Prakash.... for more details you can contact me..! my no. is 09228367640.

V R SHROFF (Sr. ADVOCATE Bombay High Court Mob: 9892432152)     06 October 2011

Due date of filing complaint is 30 oct , however for alid reasons yo can apply for delay condonation 

No Summons issued for notice to reply before granting delay application, and it delay issuing process, so advised to file complaint at ur earliest. 


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