Share on Facebook

Share on Twitter

Share on LinkedIn

Share on Email

Share More

Bindu (Junior Lawyer)     10 February 2009

Whether one can issue 138 notice

Sir,

In present case, my client gave friendly loan and after many efforts,my clients friend issued him the cheque which returned dishonoured with remarks "Signature Differs" on 09th february 2009. We have got demand promissory note dated 02/03/2004 and hand wriiten letter in his handwriting stating that he has taken loan and he shall repay the same without interest by 01/03/2005.

Now, my query is whether can we issue notice u/s 138 of The Negotiable Instruments Act.

We are going to take action against him u/s 420 of I.P.C also

Pls guide me about the success of the matter & judgements in favour or against it

REgards & Thanks,

Advocate Bindu



Learning

 27 Replies

Sameer (Buisness)     10 February 2009

Dear friend


firstly tell me when you presented the cheque. order wise.

Bindu (Junior Lawyer)     10 February 2009

Hello Mr Sameer,


The memo was recived on 9th Defruary 2009


Regards


Bindu

PALNITKAR V.V. (Lawyer)     10 February 2009

There is no harm in issuing notice but the law is that the endorsement does not necessarily constitute offence u/s 138 of Cr.P.C.

A V Vishal (Advocate)     10 February 2009

Ms Bindu:


As far as the promissory note dated 02.03.2004 is concerned, it is invalid under the Limitation Act, for the life of a promissory note is only 3 years.


Further there is a judgement of the A P High Court by Hon'ble Justice Bilal Nazki, which is different from the stand taken by the Hon'ble High Court of Karnataka, wherein in his judgement the Hon'ble Justice has highlighted that the intent of the debtor to defraud the creditor is important since the legislature intent was to curtail mischief on the part of the debtor.

Bindu (Junior Lawyer)     10 February 2009

My query is still not resolved.


I m asking whether the Cheque which has returned dishonoured RECENTLY on 9th February 2009, with remarks "Signature Differs". Whether I can issue notice u/s 138 of the Negotiable Instruments Act, 1881


Regards


Bindu Advocate

PALNITKAR V.V. (Lawyer)     10 February 2009

Dont you think that my reply is adequate? Anyway, there is no case for you for offence u/s 420 of IPC because of absence of dishonest intention[as can be gathered from the facts narrated by you]. About 138 I have already replied. Unless there is evidence to show that the drawer of the cheque intentionally signed in a different manner, you will not succeed.

Jithendra.H.J (Lawyer)     11 February 2009

certainly comes under section 420 of IPC, you can also give notice u nder section 138 of NI act, but it will not a bar to file complaint under secrtion 200 for the offence of cheating!

Jithendra.H.J (Lawyer)     11 February 2009

certainly comes under section 420 of IPC, you can also give notice under section 138 of NI Act, but it will not a bar to file complaint under section 200 for the offence of cheating!

Solicitor Chirag Shah (Advocate & Solicitor)     11 February 2009

Sorry to say But you all are beating around the Bushes...............


Sec 138 is NOT AT ALL Applicable as it attracts only when Cheque is dishonored because of insufficient fund ONLY............ See Sec 138 reads as under :


"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.... .... ... .. .. .. ""


 


Now with Referece to case Under 420 IPC .. I think its Ok you can go ahead... it is a clear case of Cheating and that too intentional.


 


Regards.


Chirag Shah

Bindu (Junior Lawyer)     15 February 2009

THanx everyone for spontaneous replies with detailed explanation.


REgards


Adv Bindu


(Guest)

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


MOBILE.09325226691, 09271971251


e.mail.adv.nbsawant@yahoo.co.in


e.mail.nandkumarbs@sify.com


REGARDING YOUR QUESTION ABOUT N.I.ACT. SEC.138, KINDLY NOTE THAT ,


1 YOU MAY SUCCEED. KINDLY ISSUE A LEGAL NOTICE UNDER SEC. 138 OF N.I. ACT.


2.ONCE THE NOTICE IS SERVED OR RETURNED UNSERVED WITH REMARK NOT CLAIMED, YOUR FILE A CASE UNDER SEC. 138 OF N.I. ACT MENTIONING THE REASONS OF DELAY AND GET PROCESS ISSUED FROM THE COURT. UNCER SEC. 138 OF N.I.ACT.


3.,SUMMONS WILL BE SERVED THROUGH POLICE AND THE ACCUSED WLL HAVE TO FACE MENTAL TENSION AS WELL AS DEFAMATION  DUE TO SUMMONS SERVED THROUGH POLICE


4. KINDLY NOTE THAT IN CASE ACCUSED REMAINS ABSENT YOU MAY APPLY FOR WARRANT AND GET THE ACCUSED ARRESTED AND YOU MAY PRESSURISE THE ACCUSED FOR REPAYMENT.


5KINDLY NOTE IN SEVERAL CASES SETTLEMENT IS MADE EVEN PRIOR TO THE STAGE OF HEARING.


6.YOU PRODUCE AFFIDAVIT OF COMPLAINENT AND AND TRY TO PROVE THE SIGNATURE OF THE ACCUSED BY REFERING SEC. 73, 74 OF INDIAN EVIDENCE ACT , MAGISTRATE CAN COMPARE THE SIGNATURE ON VAKALATNAMA AND OTHER APPLICATIONS AND IN CASE OF NEED YOU MAY CALL EXPERT HANDWRITING EXPERT OPENION AND PROVE THE SIGNATURE. OF ACCUSED.


7IN CASE YOU ARE CONFIDENT ,SUCCESS WILL COME TO YOU .


KINDLY WRITE WITH DETAILS  IN CASE ANY FURTHER HELP IS REQUIRED


THANKING YOU


YOURS SINCERELY


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

Bindu (Junior Lawyer)     28 February 2009

Thank you


Mr Nandkumar Sawant for your detailed explanation

RAKHI BUDHIRAJA ADVOCATE (LAWYER AT BUDHIRAJA & ASSOCIATES SUPREME COURT OF INDIA)     09 March 2009

I do agree with Mr. Sawant. He has explained in good way.

Anil Agrawal (Retired)     09 March 2009

 Pl clarify whether "signature differs" is the same as cheque returned for paucity of funds, stop payments etc.


Leave a reply

Your are not logged in . Please login to post replies

Click here to Login / Register  


Start a New Discussion Unreplied Threads


Popular Discussion


view more »




Post a Suggestion for LCI Team
Post a Legal Query