138 ni act
NEERAJ SHARMA
(Querist) 04 February 2013
This query is : Resolved
a cheque was issued in favour of electricity company for a payment but instead of writing date of 15th jan 2013 unfortunately 15th jan 2012 was written .
cheque got returned due to reason instrument out dated...... payment was again made through another cheque within 15 days
my question is can return of cheque also attract 138 NI act?
As the payment was made on the last day and another cheque was issued after 3rd day of return of first cheque am i liable for panelty of defalt of payment ?
Am i liable for penalty IN ANY KIND if i have paid the cheque amount with in 30 days without reciving any intimation from electricity dept?
Setu Niket
(Expert) 04 February 2013
You are not liable, when the demand for payment was made, you made the payment.
Guest
(Expert) 04 February 2013
Your query is incomplete as you have not mentioned whether case u/s 138 has been filed by the electricity company in a court of law or not and also whether you are talking about the penalty charged by the company through bill or by debit in to your bank account?
However, based on the partial information provided by you, it can be said, provisions of sec.138 can be attracted only in case of default when even on demand the same is not paid to the drawee.
However, amount of penalty on account of cheque dishonour, as fixed by the electricity company and the bank for their services rendered towards dishonoured cheque would be payable by you to the respective company/bank.
Raj Kumar Makkad
(Expert) 06 February 2013
I do endorse the advice of Dhingra ji.
C. P. CHUGH
(Expert) 08 February 2013
No case u/s 138 is made out because the cheque in question is one year old and section 138 NI Act comes into force only when the cheque is presented within its Validity Period (Earlier Six Month, Now Three Months). Since cheque is dated 15-01-2012 it could have been presented by 14-07-2012. There after it is not a Valid Instrument to attract provisions of NI Act.
NEERAJ SHARMA
(Querist) 09 February 2013
thanks for the reply but i want get clear on this point that elecricty dept is charging 800 rs as PENALTY for the DISHONOURED CHEQUE even if 2nd payment is made within 15 days of due date. how to force stop them from such practices it was a bonafide mistake my me and i without reciving any intimation regarding payment from the dept made 2nd payment....it is in practise that if a cheque is dishonered it will reflect only in next bill and on the next day of day when bill is generated line man in the morning cuttof the supply line and they charge another 800rs(400 for disconnection and 400 for reconnection)n 2nd payment made is of no value till their charges i.e CHEQUE AMT +RS 1600(penalty of 800rs and 800 for dis n reconnection charge) are paid .. kindly advice how to force stop them ?
Guest
(Expert) 09 February 2013
Bonafide or non-bonafide mistake, if the electricity company has to pay the penalty of a dishonoured cheque to its own banker and incur the overhead charges on account of expenses on clerical and supervisory functions for handling of dishonered cheques, write back of the credit entry on various records in its books/systems, raise fresh debit, raise fresh bill, etc., any bonafide mistake on your part may not compensate the company. However, had there been any mistake (bonafide or non-bonafide) on the part of the company, that would not have been justified to charge even a single paisa for their own mistake.
However you are lucky if the company has not charged you under section 138 of the Negotiable Instruments Act in a court of law, which prescribes punishment with imprisonment for a term which may extend to two years", or with fine which may extend to twice the amount of the cheque, or even with both the imprisonment and fine also.
You may better approach the authorities to waive of the fine, disconnection charges and reconnection charges, if that is possible and within their competence.
ajay sethi
(Expert) 09 February 2013
utility companies /banks charge for dishonoured cheque . you may have made a bonafide mistake but electricity company had to incur expenses on account of cheque being dishonoured . the objective being to discourage consumers from bouncing cheques . if you are aggreived complain to regulator regarding penalty charges
Guest
(Expert) 09 February 2013
Respected Shri Chugh,
You may kindly like to review your reply, as the case pertains to the previous month only when the stale (predated) cheque was presented to the company against a bill pertaining to the month of December/ january, payable in January 2013. Naturally, on the basis of the circumstantial evidence, the cheque for the amount pertaining to the current bill would be construed to have been drawn in the month of January 2013, as the amount of bill paid in Jauary 2012 would not match with the amount of bill payable in january 2013. Moreover, the bank's return memo would have been dated with January 2013, based on which the company could launch a sec.138 case after issue of notice within 30 days of dishonour.
Moreover, section 30 of the NI Act clealy prescribes that The drawer of a cheque is bound in case of dishonour by the drawee or acceptor thereof, to compensate the holder.
V R SHROFF
(Expert) 13 April 2013
You r not liable under 138 ni
