Sandeep Patel (Prop.) 03 April 2014

138 nia - delayed notice

Dear,

Need Advice,

i sold some material to a customer dtd. 31/12/2013 for which i recd payment via cheque, the cheque got dishonoured by bank on 07/01/2014, after talking to the client he ensured for the payment and kept on making false commitments that he will pay the amount asap.. on 20/02/2014 we send him a legal notice via a lawyer who is a good friend of mine, we were in an impression that after receiving the notice he will definitely pay the amout.. but we were wrong .. he stopped answering my calls .. later we filed a case with distt court.

In the first date only the MM has warned me that he will reject my case as the notice was sent very delayed to the accused, and that was supposed to be sent within 30 days of the cheque bounce..

in the next date again the MM asked my advocate to bring some docs i.e. some judgements from High / Supreme court in these sort of matters where notice was send delayed to the accused.

I'm sure that the accused was very much aware of this rule which i never knew and thats why he kept me on hold for more that 1 month.

plz advice me what to do next.. next date is on 22/04/2014.. reply before that will be highly appreciated..

Thanks & Regards

S.Patel

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17 Replies

Rama chary Rachakonda (Secunderabad/Telangana state Highcourt practice watsapp no.9989324294 ) 03 April 2014

Show all the voice recording through your phone calls to your clients and his reply. You informed to your client as and when the cheque was dishonoured. This voice recording is very important and his reply also. You can show this reason for delayed legal notice to him.

Sandeep Patel (Prop.) 03 April 2014

Dear, Thanks for your reply, I am not having any call recording but I presented printouts of sms that he was used to send in which he continuously gave time for next weak, but MM denied that this is no ground for delayed notice.. Plz advice.

Sunil Gupta (None) 03 April 2014

Can you present the check again (do you have validity on the check?). If so you can file 138 ni on the second bounce instance - there is a new Supreme Court ruling that every incident of bounce is a new cause of action.

See https://judis.nic.in/supremecourt/imgs1.aspx?filename=41067

Sandeep Patel (Prop.) 03 April 2014

No, I can't .. validity of cheque is already expired and the cheque is in the possession of court..

Ashish Singla 098140 76600 (Cheque Victim's Lawyer. LUDHIANA (PB)) 03 April 2014

Hi,

What he was doing before serving the legal notice, 'A lawyer who is a good friend of you',

Any ways...

When and under which mode you received the intimation from bank, in regard to cheque bounce in question ? Pl give proper reply with evidence in your hand.

Sandeep Patel (Prop.) 03 April 2014

:) actually we were in an impression that notice will be enough for him ... I thought he will be like me who never entered in a court room except for driving challan.. but we were wrong . on the other side my friend does not have detailed knowledge of 138 cases.. Anyways.. that time will not come back now and I admit that was completely my fault.. I have the hard copy of cheque return memo from ICICI Bank with reason mentioned as "Insufficient Funds" but that also is now in possession of court.

R Trivedi (advocate.dma@gmail.com) 04 April 2014

Delay in complaint can be condoned, but not in notice. Consult another lawyer and pursue civil remedy under XXXVII.

Sandeep Patel (Prop.) 04 April 2014

Sir,

as per our discussion with MM, he wants us to bring some high/supreme court ruling in a case where notice was server after the time limit. if we can bring that ruling he may accept the case, dont know where to get that from ..

thanks for your reply.

Nadeem Qureshi (Advocate/ nadeemqureshi1@gmail.com) 04 April 2014

Dear Querist the case is not maintainable at all because court have power to condone the delay in case but not in notice. now you should filed a civil suit for recovery under order 37 of CPC before civil court.

Sandeep Patel (Prop.) 04 April 2014

Sir, is it possible to get some ruling of high / supreme court in any other case of same sort..where the notice was delayed but court has accepted the case..

Sandeep Patel (Prop.) 04 April 2014

Sir, is it possible to get some ruling of high / supreme court in any other case of same sort..where the notice was delayed but court has accepted the case..

Prakash Karnani (Owner) 04 April 2014

Even though yr notice is delayed u can file civil suit on the accused and simultaneously run parallel suit u can even file suit under criminal breach of trust can r frnd not guide u r u sure he is a competent lawyer otherwise change him first.