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Aarif   05 November 2017

Legality of notice

I was issued cheque for 3200000 Rec part payment of 2000000 Presented 32lk chq which was dishonoured sent demand notice for 32lk but claimed 1200000 in 138nia is demand notice legal Thank you


 11 Replies

Plz give more details regarding contents of the notice........ Looking prima facie it seems to be a legal one

Adv. Aditya (Litigator GROSON ADVISORS)     05 November 2017

S 138 will not help you here. File a civil suit. 

Ritu rawat   06 November 2017

Mr Grover is right..138 is not attracted. For remaining amount of 12lacs , you can file a recovery suit.

Ritu rawat   06 November 2017

However time of occurrence of events of cheque receiving, receiving part payment,date of sending notice and filing suit will decide it's maintainability and chances of success....if you can clarify that...

Agreed with learned Ritu Rawat

Sec138 can be attracted if u disclose the dates of part payment, dishonour of cheque etc......... In a nutshell u need to disclose the facts to honourable court that u have received part payment... And pray for the remaining payment

Aarif   12 November 2017

Received cheque of 32 without date after giving payment of 32 in 2008 without date Received 20lks in 2010 Deposited cheque in Nov 2011 which was dishonoured Thanxs

Ritu rawat   14 November 2017

Under these facts, to succeed in 138 NI act, you should have obtained the endorsement as to receiving of 20 lacs and presented the cheque for remaining amount.in absence of such endorsement and presenting the cheque for entire amount , section 138 isn't maintainable. You can go for a recovery suit as I suggested earlier..
1 Like

Aarif   16 November 2017

Have disclosed rec 20lks and Prayed only 12lks in plaint

Adv. Aditya (Litigator GROSON ADVISORS)     17 November 2017

cheque drawn to discharge specific liability has amount specified on it. If you had not received 20Lakhs then the outstanding amount remaining entire amount would be covered under 138, but since you have received part payment, the amount specified on the cheque has been left reduntant, in such circumstance bank cannot proceed.

Take for instance, the drawer himself directed the bank that a certain person may appear before you with a cheque of 32Lakhs, don't make such payment as some part of cheque amount has been paid through cash. In such circumstances the value of that specific cheque has fallen down to redundancy, and a new cheque of the current outstanding liability shall be drawn and so obtained by you. 

what is the reason given by bank for dishonour?

File a civil suit for recovery of the remaining amount. 138 cannot help you. you will waste your and courts time.
Topic suggests legality of notice, but rather you should be asking legality of cheque presented. You have no cheque to base your 138 on. There is an outstanding amount against the respondent but 138 is not the way to it. 

rajasekaran (director)     19 November 2017

In 138 NI Act case when the Housing Finance Company evades the notice in 1991 and signatories of the cheque are proceeded with in 1994, can the signatoires of the cheque be aquitted in 1997 because the charges on the company was not pressed as if company was not arrayed as accused ?

In appeal against aqquital u/s 378 of Crpc can a defence following Aneeta Hada v. Godfather Travels & Tours Private Limited, (2012) 5 SCC 661 be taken that charges against company was not pressed?

The Housing company has surfaced and many have succeded in consumer forums as in Jugmandar Dass Bansal V/S M/S Tapoban Housing Finance Ltd. ,R. Udaya Kumar vs M/s. Tapoban Housing Finance Limited, New Delhi,etc

Vikas Hedau (Advocate)     21 November 2017

Now civil suit will also wont help you as now its barred by limitation as it was instance of november 2011 as per you and limitation is 3 years of cause of action for money suit, forget 12 lakh

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