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Advocate Abhijeet singh (ADVOCATE)     24 September 2022

Under section 138 ni act

Respected sir,
my query is following, plz give best suggestion:
1.  I have sent a legal notice to accused under section 138 NI act and due to some typically error the name of accused affixed wrong.
2. That when we knew mistake then we imminently re bounce the same cheque and again sent the legal notice to accused .
3. that the complaint under section 138 NI act also filed during the time period and also mentioned in the complaint that the one notice also sent under typically error with wrong name.
4. That thereafter the concerned court issued the bailable warrant against the accused and accused appeared and got the bail from concerned JMIC.
that my now accused filed a appeal against the order of JMIC  towards the warrant of accused that on the ground that the same complaint is liable to dismiss because the complaint not filed between the stipulated period and accused took plea that complaint filed period should be start from the first legal notice.
now plz tell how we will defend this ground .
thanks  
abhijeet soni 



Learning

 9 Replies

N.K.Assumi (Advocate)     25 September 2022

Contest the appeal filed by the accused with all the material records that you possess, and plead that your complaint was within the period of limitation.

Dr J C Vashista (Advocate)     25 September 2022

You have stated, inter alia, that

".....the concerned court issued the bailable warrant against the accused and accused appeared and got the bail from concerned JMIC."  whether the accused did not appear before the court on summons and only after B/Ws were issued or in the first instance warrants have been issued ???

 

Further you have mentioned in your post, inter alia, that,

"....my now accused filed a appeal against the order of JMIC towards the warrant of accused that on the ground that the same complaint is liable to dismiss because the complaint not filed between the stipulated period and accused took plea that complaint filed period should be start from the first legal notice."
 

Could you please clarify your version on the following points :
1. Whether you have assailed order on issuance of warrants issued by JMIC or qua cancellation of warrant ? If it is qua cancellation of warrant the application on behalf of accused should have been moved to concerned Trial Court and not in appeal.

2. Whether your appeal is against the order on summoning of accused as the complaint was not filed within stipulated period  ? 

3. Since impugned order on summoning of accused is interlocutory, how "appeal" is maintainable and why not a "revision " ? 

4. How can the accused conclude / draw inference that filing of complaint should start from the date of first demand notice ?

 Thanks and regards

Dr. (Maj) J C Vashista

Advocate

cell 9891152939

Supreme Court of India

1 Like

Advocate Abhijeet singh (ADVOCATE)     25 September 2022

Respected, Dr J C Vashista ji,

good noon and thanks for reply my query,

Here I clarifiy the points :

1. That I am on the behalf of complainant and I got the notice from the side of accused yesterday for date 27.9.2022 in Session Judge. and i also rectified here accused filed Revision petition.

" Revision peition, impugning the summoing order dated **** passed by Ld JMIC adn subsequent proceeding there on in the case no *****under NI act"

2. Now accused asked in his revision that the complaint should filed in stipulated period which have to start from the date of first legal notice. And I sent second notice with correct name by mistake first notice has been sent with wrong name.

thanks and regards

PARESHKUMAR J RAICHURA   29 September 2022

is it mandatory to hear accused before passing sentence in summons case ??

Dr J C Vashista (Advocate)     29 September 2022

It is mandatory to hear arguments on sentence before handing over punishment to convict.

sridhar pasumarthy (ADVOCATE)     01 October 2022

Fresh cause of action arises on each time when cheque I preented.  Through complaint was not filed fter isuing 1t notice, yor client is entirles to file the same after isuing 2nd notice by preetini the cheuue again So, your omplaint is within the tie of limitation 

SARVESH BHARDWAJ (Advocate)     02 October 2022

A cheque can be present to bank any number of times within validity period and for each dishonor, fresh cause of action would arise. In your case, you have presented the cheque two times. You have discarded your first notice due to incorrect particulars and rely only on second notice. There is no illegality in that. Appeal/revision of accused only on that basis must fail.

Sarvesh Bhardwaj

Advocate, Delhi

Mobile no 9350301058

Dr J C Vashista (Advocate)     02 October 2022

Well analysed, opined and advised by experts, I concur and appreciate.

Despite the fact cause of action arose in favour of complainant wherein you did not file the complaint on the basis of dishonoured cheque in the first instance, hence it is of no (NO) consequence accordingly the ground taken by accused (if any) shall be discarded by Revision Court.

The complaint stated to have been filed on the strength of second time dishonouring of subject cheque is well within its limitation which has considered and taken cognizance by Trail Court, hence. if accused / revisionist has taken this ground in the revision petition,  shall have to be discarded by Court.

Presentation of cheque within its validity can not be challenged by accused, if it is not honoured by drawers Bank.

P. Venu (Advocate)     05 October 2022

Yes, the facts posted suggest that the petition filed by the accused is devoid of any merits.


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