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B.P. Bhardwaj (delhi)     08 March 2010

RE-PRESENTATION OF CHEQUE IN CASE OF ACCOUNT CLOSED

Sir,

Please update me regarding re-presentation of cheque if the cheque returned unpaid by drawer's bank with the remark of "ACCOUNT CLOSED".

Can I re-present again after expiry of 30 days, which is limitation u/s. 138 to send legal notice to defaulting party to initiate legal proceedings.

Please send me any judgement in this regards

Regard

 

B.P. BHARDWAJ



Learning

 12 Replies

Sankhaneel Baruah (Advocate)     09 March 2010

Any cheque has a validity of 3 months, previously 6 months....and there is no limitation as to how many times a cheque can be presented to the banker.....to give fresh life for filing a complaint under 138...

however there is a bar...Once u initiate legal proceedings...that is...by taking the first STEP---GIVE A PLEADER's Notice...the law of limitaion as defined under the act will come into force....and u cannot further present the cheque to the banker.

If u have served such a NOTICE...then....While calculating the 30 days...count it from the day you received your intimation from your banker..add postal receipt date+15 days Notice period...if there is a refusal to accept then the notice, it  will be deemed served in 2 working days....such and such forth.....My advise would be consult a good lawyer in your Area...to do the exact calculation of the reasonable period...

B.P. Bhardwaj (delhi)     09 March 2010

Sir,

About 40 days have been passed when we received intimation from the bankers, hence we are not in possition to issue legal notice. In my opinion We also not in possition to re-present the cheque which has returned unpaid with the remark of "ACCOUNT CLOSED". Now we have only remedy is to initiate action under order XXXVII OR to file suit for recovery. Please advise me and update, is any law permitting us to re-present cheque again with our banker?

Regards

B.P. BHARDWAJ 

Basavaraj (Asst, Manager-Legal)     09 March 2010

Mr.Sankhaneel Baruah, I understand that any cheque has a validity of 6 months not 3 months. Further I do agree with your feedback to B.P. Bhardwaj. We can present the cheque for payment with no limitation within the prescribed time. But once legal notice has sent then you cannot present it again for payment. However there is a intimation from the drawer of the cheque for “ACCOUNT CLOSED” then you cannot present it for payment, even if presented that cannot be considered as an offence u/s138 of N.I.Act.  

 

R.K.SUNDERRAJ (LAWYER HUBLI,KARNATAKA)     16 April 2010

I agree with Basavaraj.R.

DEFENSE ADVOCATE.-firmaction@g (POWER OF DEFENSE IS IMMENSE )     25 May 2010

Whether the accused is known to you OR you are in contact with him. Send me details , there can be methods to overcome the issue of notice buisness.

Arif Iqbal (Advocate)     04 June 2010

Mr. Bhardwaj, You said "About 40 days have been passed when we received intimation from the bankers..." 138 NI Act provides that you should issue the mandatory notice within 30 days from the date of reciept of the information from your banker about the dishonour, which may ot be the date of dishonour. So if your date of receipt of information is within the prescribed period then I think there is no any difficulty in issuing the legal notice.

YOGESHWAR. (ADVOCATE HIGH COURT-criminal /civil -youract@gmail.com)     08 June 2010

Mr Arif Iqbal has shown the way out , the time limit starts from the date of knowledge and not from the date of bouncing.

samrt lawyer (lawyer)     23 September 2010

please guide me how the time limit starts from the date of knowledge and not from the date of bouncing.
the date of knowledge is include in  days . if yes and you have any judgment of it please give me urgently

Sankhaneel Baruah (Advocate)     23 September 2010

When You write a complaint ...state only facts...u neednt write a whole judgement yourself .. anyway for your query ...its common reasoning that u know that the cheque has bounced FROM the acknowledge slip with states the reason why the cheque was not cleared....and as you are not privy to someone's bank accounts...u have to rely on this slip date only as YOUR FIRST INTIMATION that the cheque u placed didnt get cleared

138 of the N.I. Act are reproduced hereunder:-
Section 138 - Dishonour of cheque for insufficiency, etc., of funds in the account Where any cheque drawn by a person on an account maintained by hi m 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 sh all be deemed to have committed an offence and sh all, without prejudice to any other provisions of this Act, be punished with imprisonment for1[a term which may be extended to two years], or with fine which may extend to twice the amount of the cheque, or with both: Provided that nothing contained in this section sh all apply unless--
(a) the cheque has been presented to the bank within a period of six months from the date on which it is dr awn 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 dr awer of the cheque,2[within thirty days] of the receipt of information by hi m from the bank regarding the return of the cheque as unpaid; and
(c) the dr awer 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 fifteen days of the receipt of the said notice.

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

At this juncture, it would also be appropriate to take note of Section 18 of the Limitation Act which deals with acknowledgement and explanation of limitation which reads as under:-

Section 18 - Effect of acknowledgment in writing( limitation act) (1) Where, before the expiration of the prescribed period for a suit or application in respect of any property or right, an acknowledgment of liability in respect of such property or right has been made in writing signed by the party against whom such property or right is claimed, or by any person through whom he derives his title or liability, a fresh period of limitation shall be computed from the time when the acknowledgment was so signed.
(2) Where the writing containing the acknowledgment is undated, oral evidence may be given of the time when it was signed; but subject to the provisions of the Indian Evidence Act, 1872 (1 of 1872), oral evidence of its contents shall not be received.
Explanation.--For the purposes of this section,--
(a) an acknowledgment may be sufficient though it omits to specify the exact nature of the property or right, or avers that the time for payment, delivery, performance or enjoyment has not yet come or is accompanied by a refusal to pay, deliver, perform or permit to enjoy, or is coupled with a claim to set-off, or is addressed to a person other than a person entitled to the property or right;
(b) the word "signed" means signed either personally or by an agent duly authorised in this behalf; and
(c) an application for the execution of a decree or order shall not be deemed to be an application in respect of any property or right.

Sankhaneel Baruah (Advocate)     24 September 2010

The circumstances of account closure is important here...if the Bank closed the account as per their governing rules and the issuer was ignorant then he escapes liabilty from 138....but if he purposely closed the bank account after issual the cheque which was subsequently dishonoured...then a complaint after expiry of due notice is maintainable. refer..

 

Dishonour of cheque - Account closed - Complaint is maintainable. (A.K.Chaudhary & Ors. Vs Nandita Malhotra) 2007(4) Criminal Court Cases 593 (Delhi)


(Guest)

YOU MAY KINDLY NOTE THAT AS PER LEGAL PROVISION AND LIMITATION PERIOD IS OVER.AS ACCOUNT IS CLOSED BY THE DRAWER OF THE CHEQUE.

REMEDY FOR YOU WILL BE FILE A DELAY CONDONATION APPLICATION MENTIONING REASONS FOR THE DELAY AND IT IS UP TO THE COURT TO TAKE ISSUE PROCESS PLEASE  NOTE.

KINDLY NOTE THAT ACCUSED PERSON INTENTIONALY REQUEST THE HOLDER OF CHEQUE REQUESTING SETTLEMENT OF ACCOUNT AND ONCE LIMITATION PERIOD IS OVER THEY REFUSE TO SETTLE THE ACCOUNT.MENTION ALL THESE FACTS IN YOUR DELAY CONDONATION

KINDLY NOTE THAT ISSUE OF SECOND NOTICE WILL BE RISKY AS THERE ARE CITATIONS ON THIS SUBJECT.

APPLICATION .GOOD LUCK.

YOU MAY WRITE AND SEND DETAILS WILL HELP YOU.

GOOD LUCK.

NANDKUMAR B.SAWANT.M.COM.LL.B.(MUMBAI),.ADVOCATE.

MOBILE.9271971251, 9960223100

e.mail.nandkumarbs@sify.com

e.mail.advocatesawantnb@yahoo.com

Goutam (Student)     09 October 2010

I agree with Mr. Sankhaneel and Mr. Basavaraj


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