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Ajay (None)     30 November 2013

Ni 138 act

Dear ForumMembers,

 

One of Friend  is having an issue with the a Cheqeue.

My friend and his father has taken 1Lack and 2 lakhs seperately  from the one person  in June 2013 and my friend gave a Blank cheque and seperate  DP note e for 1lakh bearing his name and the other DP note is of his fathere name but his father has not given any cheque. Recently my friends father has expired in July.

The person who has given the amounts have forced my friend to pay his amount and also his father amount with in 30 days.He said that he has the blank cheque with him and will exceute the cheque for the entire amount of 3 lakhs.

The person has submitted the cheque in the bank on 25th sep 2013 and an amount of 200 rupees have been dedcuted form my friends bank account saying that  "DEBIT CQ ****** RETD".The Lending person has sent a notice to my friend on 25th sep 2013 regarding the dishonour of the cheque and asked my friend to pay the amount with in 15 days or else he will file the case against my friend as per NI act 138.

My friend appointed his lawyer and sent a reply for the same with in one week from the recepit of the notice.

My friend have not received any letter from the bank regarding the dishonour of the cheque.

Now it has been more than 30 days and still I have not received any summons for the same from the honourable court and I dont know whether the lender has filed a complaint against me or not.

If he files a case against me now as per NI act 138 can this be a valid case and can u please tell  me the limitatins for the NI 138 act case.

 

 



Learning

 6 Replies

Prasun Chandra Das (Banker)     30 November 2013

Sec 138 of NI Act:

Dishonour of cheque for insufficiency, etc., of funds in the account. Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid. either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice. to any other provision of this Act, be punished with imprisonment for a term which may extend to one year,   or with fine which may extend to twice the amount of the cheque,or with both: Provided    that    nothing    contained in this    section    shall apply unless- (a) the    cheque    has been,  presented to the bank    within a period    of six months from the date on which it is    drawn or within the period of its validity,  whichever is earlier; (b) the payee or the holder in due course. of the cheque as the    case may be,  makes a demand    for    the    payment    of the said    amount of money by giving a notice,   in writing,   to the drawer    of the cheque,  within 30 days of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and (c) the drawer of such cheque    fails to make the payment of the said amount of money to the payee or,   as the case may be, to    the    holder in due course of the cheque,    within 15 days of the receipt of the said notice.

 

 Explanation.-For    the    purposes of this section,  "debt    or other liability" means a legally enforceable debt or other liability.

Since your friend has already consulted a lawyer, trust his judgement. Since your friend has not paid within 15 days, he may receive a sec 138 notice. Then it is a matter of trial. I would also advise that in all fairness, your friend borrowed money and so needs to pay back. Your friend should not resort to courts to escape from his duty to pay back money.

Ajay (None)     30 November 2013

Dear Sir,

My friend is ready to pay the amount and his fathers amount in installment basis in 1 year ,currently  my friend is in  deep sorrow and in greif of his fathers expiry but the money lender is forcing him to pay in a month .His father is a govt employee and has expired while in service ,now my friend has a chance of getting a govt job on  compossionate grounds but the lender is not listining to him and thearting him by saying that "he has the blank cheqe and will create problems by puting case so that he will have problem for job on compossionate grounds '.....etc.

If case is filed against my friend ,will it have any effect on his job based on compossionate grounds.

We have read in the posts that after 30 days of expiry even if the case is filed the case will be dismissed .Is it correct sir?Please provide your advice sir .

Prasun Chandra Das (Banker)     02 December 2013

If you have received demand notice u/s 138 on day T, you need to pay within 15 days, i.e., T+15 days.

If you do not pay within T+15 days, then "cause of action" arises, and another 30 days is available for the complainant to file case at court, i.e, within T+15+30 days.

Filing case u/s 138 after this will render his case to be dismissed, Learned Advocates may please advise.

Nadeem Qureshi (Advocate/ nadeemqureshi1@gmail.com)     02 December 2013

Dear Ajay

if he is ready to pay the amount then no need to worry about it. wait and watch if you receive any summon from court then appear before the court & try to settle the matter in mediation cell otherwise fight the case. the case will be decided more then years.

Feel Free To Call

Ajay (None)     02 December 2013

Dear Sir,

We are thank full  for clearing our doubts sir.

It has been more than T+15+30 days sir and our friend is ready to pay the amount in 1 year time.

The only fear my friend has that will this create any problem for him regarding his Job based on compassoinate grounds.

We heard that the money lender is contacting my friends family friends for setteling this matter.Should we proceed now sir.

 

Thank you sir.

Ajay (None)     05 December 2013

Dear Sir,

We are thankful for the information given by you sir.

We have received the notice on 27-09-2013 regarding the repayment of the money and also in that notice the money lender have mentioned that he will file a case on my friend under U/S 138 NI act If my friend does not pay the money within 15 days.

We have appointed advocate and sent a reply to this notice on 1-10-2013 .

We have received another reply on 9-10-2013 from the money lender advocate and he has sent us the documents.

Sir , Now it has been more than 50 days from the second reply from the money lenders advocate ,Now if he files a case on my friend U/S 138NI act can u please tell us the concequences that we have to face and will that have any problem on my friends Job based on compossionate grounds.

Will the case be dismissed or will it go for trial in the court.

And one more thing is that can we put an InJunction order on my friends house ,If we put an injunction order what will happen.

I request you to please provide us the information.

Thanking you sir.


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