Whether one can issue 138 notice

Dear friend

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

Hello Mr Sameer,

The memo was recived on 9th Defruary 2009

Regards

Bindu

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.

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.

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

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.

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!

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!

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

THanx everyone for spontaneous replies with detailed explanation.

REgards

Adv Bindu

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

Thank you

Mr Nandkumar Sawant for your detailed explanation

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

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