Whether one can issue 138 notice

Without prejudice to the above opinions, I quote my opinion as follows:

Since this is a case of 'signature differs', the drawee should inform the drawer of cheque by sending him a notice (not necessarily u/s 138) stating that the cheque has been dishonoured for the reason 'signature differs' and ask him to issue a fresh cheque. so that u can re-deposite it and get ur account settled.

Now, if the drawer is not paying attention to ur notice or straightaway neglecting ur notice.....then the way is very clear for u. In such case it will be a very good case of Cheating (u/s 420 IPC). And u can approach police for the same.

But if the drawer is ready to re-issue the cheque, then there shouldn't be any problem.

I always advice people for 'amicable settlement' & preservation of relations. So try to settle the matter as amicably as possible. (in this way, we contribute for minimising litigations).

I hope, the querry is solved.(pls let me know about it).

Regards,

Nitin.

Mr. Sawant has basically given the procedure. I think the query does not relate to the procedure. it relates as to whether Sec. 138 and 420 are attracted. The bare facts without much details do not indicate that the proposed accused had deliberately put a different signature with an intention to cause wrongful loss to the other side or to have wronful gain to himself. Please see the ingredients of 420. The dishonest intention must exist at the inception and not later. Does the problem indicate such dishonest intention since beginning. The signature may differ for various reasons and it is not necessary that it is made different deliberatly. The complainant does not say so. For the same reasons sec. 138 is also not attracted unless there is pleading that the signature was made in a different manner with a mala fide intention.  I am subject to correction. Please express your frank opinions on what i have opined.

The step you have taken now for presenting a case under sectionb 420 I.P.C is also a right way still you can send a notice under section 138 N.I.Act because, once a cheque is dishonoured a notice intimating the drawer of the cheque as to the dishonour is mandatory U/S 138(b) of the Act.

Palnitkar sir the friens has given in writing that he shall make the payment by 2005 , he did not do so after several hard attempts he issued a cheque which dishonured with reasons "signature differs"

Palnitkar sir the friens has given in writing that he shall make the payment by 2005 , he did not do so after several hard attempts he issued a cheque which dishonured with reasons "signature differs"

you may take a chance of filing a criminal case. But I think you should also go for civil case.

Thanks for good and clear suggestion for everyone sir.....

hope in future we will got same and clear suggestions thanks a lot sir .

Rgds

Kamal.

 From Bangalore.

HOPE IN FUTURE  I WIlL GET ANOTHER GOOD SUGGESTIONS FROM U SIR...

You may try your luck.

You may try your luck by filing case as suggested by learned friends.

certainly it is cheating . but proving the mensrea will be dificult . so u should invoke s. 138 also. you  may take a plea that  " signatur differs" is eqal to  "refer to drawer" and  "refer to drawer" has been held an offence u/s 138 NI Act. also take support from NEPC Micon Ltd. v. Magma leasing Ltd. AIR 1999 SC1952 where the supreme court insisted on legislative intent and held (in para 15 )that :

"  In view of the aforesaid discussion we are of the opinion that even though Section 138 is a penal statute, it is the duty of the Court to interpret it consistent with the legislative intent and purpose so as to suppress the mischief and advance the remedy. As stated above, Section 138 of the Act has created a contractual breach as an offence and the legislative purpose is to promote efficacy of banking and of ensuring that in commercial or contractual transactions cheques are not dishonoured and credibility in transacting business through cheques is maintained. The above interpretation would be in accordance with the principle of interpretation quoted above 'brust away the cobweb varnish, and show the transactions in their true light' (Wilmot C. J.) or (by Maxwell) "to carry out effectively the breach of the statute, it must be so construed as to defeat all attempts to do, or avoid doing, to an indirect or circuitous manner that it has prohibited." Hence, when the cheque is returned by a bank with an endorsement 'account closed', it would amount to returning the cheque unpaid because "the amount of money standing to the credit of that account is insufficient to honour the cheque" as envisaged in Section 138 of the Act."

Mr. Palnitkar is right,

I do agree with Mr. Palnitkar.