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Saurabh   22 November 2023

Ni act wrong notice delivered

I received a cheque against my outstanding debt which was bounced my advocate sent a legal notice to accused but my mistake my advocate posted any other person notice to my party in an envelope.

Will the case be accepted in ni act or not



Learning

 13 Replies

Sanjana Singhania (Seo expert)     22 November 2023

Whether your cheque bounce case will be accepted under the Negotiable Instruments Act (NI Act) depends on the specific circumstances of your case. However, in general, if the legal notice sent to the accused was not properly served, the court may not accept your case.

Under Section 138 of the NI Act, the complainant has to serve a legal notice to the accused within 30 days of receiving information from the bank that the cheque has been dishonored. The legal notice must contain the following information:

  • The names of the complainant and the accused
  • The date on which the cheque was issued
  • The amount of the cheque
  • The fact that the cheque was dishonoured by the bank
  • A demand for payment of the cheque amount

The legal notice must be served either personally on the accused or by registered post with acknowledgment due. If the legal notice is served by registered post, the complainant must retain the acknowledgment for their records.

In your case, it seems that the legal notice was not properly served because it was sent to the wrong person. This could be a fatal flaw in your case, and the court may not accept it. However, you may be able to rectify the situation by serving a new legal notice on the correct person within the 30-day time limit.

It is always advisable to consult with an experienced lawyer to discuss your specific case. They can advise you on the best course of action to take and help you ensure that your case is properly served and compliant with the requirements of the NI Act.

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Saurabh   22 November 2023

Name and address mentioned on the envelope was correct and was sent through registered ad post ..

But the notice inside the envelope which was drafted by my advocate for some other company case was sent by mistake 

Sanjana Singhania (Seo expert)     22 November 2023

Yes, the case will still be accepted under the Negotiable Instruments Act (NI Act) despite the mistake of sending the legal notice to the wrong party. The validity of a legal notice under Section 138 of the NI Act does not depend on whether it is sent to the correct address or not. The crucial aspect is whether the notice is served on the drawer of the cheque within the prescribed time limit.

In your case, since the notice was sent to the correct address through registered AD post, it is deemed to have been served on the drawer of the cheque within the time limit. The fact that the notice inside the envelope was for another case is a clerical error and does not affect the validity of the notice.

The drawer of the cheque will still be liable to pay the amount due under the cheque, and failure to do so within the stipulated time frame will result in legal consequences under the NI Act.

SAM (LEGAL)     22 November 2023

Inform your advocate to send corregindum to the legal notice dated ________ and mention the details in the corregindum notice

                                                                                            

By RPAd

CORRIGENDUM

To,

Mr. ______________,

Address: ____________

___________________,

_____________, Pin Code No.- _______.

 

Sub: Corrigendum of Notice bearing Ref. No. _________/2023 dated ____ November , 2023.

 

            Under instructions of my clients ______________________ having their registered office at _________________________________________, I have to address you as under: -

 

1.           That as per instructions of my client above named, I sent you one notice baring Ref. No. ____________2023 dated _____ November, 2023 (hereinafter the said notice)  to one M/s. ______________ Pvt. Ltd. Company for ________________________________.

2.            That due to some inadvertent error from my end, a notice to other party was wrongly being send to you at your address and  by this corrigendum I, do rectify my mistake and send you correct notice addressed to you as per my clients instructions. So you may read the said notice as hereunder.

Saurabh   22 November 2023

It has been 95 days of sending previous wrong notice after that i filed case in ni act and the drawer of cheque has said in court that he was not aware of any such case ..

So in ni act as it is necssary to inform through notice within 30 days of receipt of bounce cheque now it has been 95 days so therefore the case does not comes under ni act

Dr. MPS RAMANI Ph.D.[Tech.] (Scientist/Engineer)     22 November 2023

Your statement is not clear particularly without full stops. I understand it this way. Cheque issued to you by A bounced. Your advocate sent the envelope addressed to A but enclosing in the envelope a notice addressed to B. If so, you have lost the case unless you send your notice addressed to A in a correctly addressed envelope within the notice period.

SAM (LEGAL)     22 November 2023

Atleast you send corrigendum notice. Let the court decide the case. 

Saurabh   22 November 2023

Same thing happened as you explained.

But now the cheque validity has been expired and i cannot represent them again

What should i do

Dr. MPS RAMANI Ph.D.[Tech.] (Scientist/Engineer)     23 November 2023

As the correct notice was not sent to the right person at the right time the lender has lost his case under NI-138. Section 138 and the following sections have been so ineptly drafted that in most cases the law is ineffective. In my opinion NI-138 is not necessary. IPC- Section 415 would be more effective.

Long long ago there was no section NI-138. One of my relatives who was a retail dealer in another town came to my town. He went to a bank and opened an account paying Rs.5/- He got cheque book, pass-book etc. Next Saturday evening he went to a whole-sale dealer and purchased items worth Rs.1000/-(Rs.1000/- was a big amount during those days). On Monday the whole-sale dealer presented the cheque in his bank. Next day the bank returned his cheque. Immediately the dealer filed a complaint with the police. The police located the culprit in a couple of days and arrested him. He had not only to return the money but also had to spend a laarge amount to escape punishment. If there was NI-138 during those days the case would have dragged along for months or years.

There was also another case. The cheque issued by a life insurance company bounced. Just a threat that the matter would be reported to the police worked.

T. Kalaiselvan, Advocate (Advocate)     25 November 2023

Sending a legal notice to a wrong person will not entitle you to file the proposed cheque bounce case.

Your case may be be maintainable in the absence of statutory notice to the accused 

RAKESH PIPRODIA (ADVOCATE)     26 November 2023

Primafacie, the purpose of sending the demand notice is not served. Hence, your notice itself is invalid.

BALACHANDER REDDY   28 November 2023

The said Statutory demand notice is not a valid notice as per Sec.138(c) of Negotiable Instruments Act, 1881. Hence a Corregendum legal notice should be served within the lim​​​​​​​itation period of 30 days, to the Accused, failing which the concerned Magistrate court shall not take cognizance of the said case,

P. Venu (Advocate)     28 November 2023

In a proceeding under NI 138, the cause of action begins when the debt is not cleared in spite of the Notice. In the instant case, no statutory Notice has been served, hence there is no cause of action to initiate.

However, still you have option to initiate a civil action,


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