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Arif Iqbal (Advocate)     13 April 2010

Dishonoured twice (two cheques) for same debt

Dear learned members,

Please enlighten me with relevant citations etc arisen in one of my client's case:


A company issued  cheque, bearing no. A (say) was dishonoured by bank due to 'account closed'. There after I issued notice to both the MD and the company. After recieving the notice, the MD sent a reply by saying that he is sorry for the dishonour of the said cheque. He asked for two months time and also issued a post dated cheque bearing no.: B, covering the whole dishonoured amount in cheque A.

unfortunately, after 2 months the cheque B, when present to the bank was also dishonoured.


Now my friend the question is:

(a) whether I can prosecute the company for dishonour of Cheque A and simultaeneously issue notice for dishonour of Cheque B to invoke a new cause of action?



Learning

 4 Replies

shrikant chede (law officer)     13 April 2010

yes you can procecute the company & MD for both dishonoured cheques

1 Like

AEJAZ AHMED (Legal Consultant/Lawyer)     13 April 2010

 

Dear Asif,

 

 

Regarding First Part of Your Query:

 

 

"Whether I can prosecute the company for dishonor of Cheque – A"

 

 

_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _

 

 

Facts about First Cheque from your Query:

 

*     Cheque – A was dishonored by bank due to "account closed"

 

*     You have issued notices to both the MD and the company

 

*     After receiving the notice, the MD sent a reply

 

*     MD asked for two months time and also issued a cheque – B

 

 

_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _

 

 

So, in first part of your query, you are asking about prosecution of the Company for the dishonour of Cheque – A, but your query is totally silent about the validity period  and date of the Chque – A.  Because on the said notice issued by you for the dishonour of cheque, and that too, after a period of TWO Months you can't initiate proceedings under 138 of NI Act for the dishonour of Cheque - A.

 

 

 

_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _

 

Issuance of Notice: Thirty (30) Days

Grace period         :  Fifteen (15) Days

Presentation of Complaint: Within Thirty Days after grace period of 15 days

_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _

 

 

 

Therefore, for this Cheque – A, now after a period of two month, can't initiate legal proceedings against the company under 138 of NI Act.

   

 

 

Regarding Second Part of Your Query:

 

 

" and simultaeneously issue notice for dishonour of Cheque B to invoke a new cause of action"

 

 

Exactly, you can now issue a notice (within 30 days from the dishonour of cheque) for the dishonour of Cheque – B, and within its limitation period you can initiate legal proceedings against the company and concerned person.

 

 

But don't forget to mention in your second notice about the issuance of Cheque – A, its dishonour, issuance of notice and the new facts about the present cheque – B.

 

 

 

One more important fact I want to point out to you, you are saying that Cheque – A is dishonoured due to  "account closed", but your query is silent about the Cheque – B; whether this Cheque – B is of Same Account or any other account.

 

 

If the Cheque – B is also from same account, you can prosecute the company and concerned person (for both cheques) for the offence u/s 420 of IPC (cheating).  

   

2 Like

Dharmesh Manjeshwar (Advocate/Lawyer)     15 April 2010

Mr. E. Ahmed has explained it very well over here ... putting the query to rest .... what more can one say ...

Mr. Arif .... will also agree .....

1 Like

DEFENSE ADVOCATE.-firmaction@g (POWER OF DEFENSE IS IMMENSE )     25 May 2010

Even if the second cheque is not from earlier account still you can prosecute the co and its directors for cheating.


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