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TANMOY (director)     02 September 2009

mistake in 138 notice

hi, one cheque bounced and reason was 'insufficient funds' but by mistake we issued notice stating that the cheque was bounced with advice ' refer to drawer'. how to rectify this mistake?


 15 Replies

saumit joshi (advocate)     02 September 2009

As per my view, if limitation is not over than, you issue another notice stating that "by mistake reason written as refer to drawer" and send it. but required to obtain vies of other learned friends.

Dharmesh Manjeshwar (Advocate/Lawyer)     02 September 2009

Pls. do not commit the blunder of issuing second notice ........ what is important is that the notice should be a demand notice for the cheque amount ..... demanding the cheque amount within 15 days from the date of receipt of the notice ....... The mistake can be attributed to be a clerical mistake or typing error which will not vitiate your proceedings u/s - 138 .... You have the Cheque Return Memo which clearly states '' Insufficient Funds '' as reason for the dishonour .... the opponents may raise the said issue .... but I doubt that this may sail them through the case ..... rest assured.

saumit joshi (advocate)     02 September 2009

I m not fully agreed with My learned friend advice. because if limitation is not over than why we clarify our clerical or typing mistake. opponents must be raise this issue at the time of evidence. 

Dharmesh Manjeshwar (Advocate/Lawyer)     02 September 2009

Saumit, Pls. be specific as to on what point u do not agree on ....... For the purpose of filing ur complaint ....... u will have to compute days on the basis of the first notice only ....

saumit joshi (advocate)     02 September 2009

Sir, In NI Act notice play important role and at the time of evidence this issue become harmful for complainant.

TANMOY (director)     02 September 2009

Can't we issue a second notice and file the complain after the expiry of 15 days from the second notice?

bhumika singh (Lawyer)     02 September 2009

In my view, you shuould once again present the cheque to the bank for payment, even if the cheque is not encashed you should issue second correct notice the person who has issued you this cheque. You need not to give previous reference of dishonour. Thereafter, you can file complaint under section 138 N.I.Act before competent court. This is correct view because you can present cheque so many times before bank within six months from the date of issue. It is also not necessary that if notice was issued by you should always be supported by complaint. You can avail second opportunity to present the cheque before bank, then notice and then present complaint.

Dharmesh Manjeshwar (Advocate/Lawyer)     03 September 2009

Once a notice of demand is issued, then you loose the opportunity to represent the cheque .... The Payee can present the cheque any number of times before the service of notice but once the notice demanding the cheque amount is sent, no fresh cause of action can be created by again giving notice. In my opinion, Mr. Tanmoy pl. do not issue second notice and/or represent the cheque again .... go ahead with the filing of complaint on the basis of the first notice .... pl. do mention in the complaint the clerical/typing error committed in the notice ... correct yourself in the complaint by mentioning correct reason of the dishonour ... i do not think that the error that has been committed in the notice will vitiate your 138 case ... cause what is needed is to give demand notice for the cheque amount & that u have given ... u may also go through various 138 judgements on the issue for enlightening yourself.

PARTHA P BORBORA (advocate)     03 September 2009

Dhormesh is very correct

Shivasurya (Lawyer)     04 September 2009

the advice of Mr. Dhormesh Manjeshwar is very correct dont issue another notice and dont represent the cheque it will definetly harm your case

bhavin (Advocate)     06 September 2009

There is so mamy judgments of the same topic that typical mistace can be rectified .

If by you are typing wrong chequ number then also you cas file a comp. Imp thing is that he must have received a demand notice . Your notice must be demand notice, that's all nothing more is required. If you sending simple Telegram that "your cheque is bounce pls pay the cheque amout to my client within 15 day " is sufficient.

It is my thiking




Mr. Dhormesh Manjeshwar IS


Shweta (Lawyer)     08 September 2009

Mr. Manjeshwar is absolutely write. Do not issue a second cheque. Instead just make an averment in the Complainant stating tht there was a clerical error in the notice which may be pardoned.

Adinath@Avinash Patil (advocate)     14 September 2009

Mr .Tanmoy,

Don,t  wory  your notice does not affect the provision of section 138 of n.i.Act ,you  can file cmplaint. Be confident your case is good you will succed.

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