138 nia
Neeraj Kaushal
(Querist) 29 July 2012
This query is : Resolved
My client has sent demand notice for payment within 30 days , if i will file complaint on that notice , whether my complaint is maintainable because i have to sent notice for 15 days for payment of cheque amount . Is there any law who support my complaint.
ajay sethi
(Expert) 29 July 2012
it was atypographical error . send another letter mentioning that inadvertently it was mentioned as 30 days whereas under provisions of section 138 NI only 15 days time i s granted to make payment
Anirudh
(Expert) 29 July 2012
The notice will be invalid only if the notice period given is less than the statutory period to be given (15 days). Giving more number of days will not affect the validity of the notice.
However, the period available for filing the complaint will get reduced from 30 days to 15 days (because you had given 15 days more notice period.). If you file the complaint immediately on the completion of the 30 days notice period, everything will be ok.
prabhakar singh
(Expert) 29 July 2012
The law is as follows:
"Provided that nothing contained in this section shall apply unless-
............................................
(a) The cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier.
(b) The payee or the holder induce course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice, in writing, to the drawer, of the cheque, 3["within thirty days"] of the receipt of information by him from the bank regarding the return of the cheques as unpaid, and
(c) The drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice."
WHAT DO YOU NOTICE BY ABOVE THAT YOU NEED TO PRESENT THE CHEQUE FOR ITS COLLECTION WITH IN ITS' VALIDITY PERIOD WHICH CAN BE ANY PERIOD BUT CAN NOT BE MORE THAN SIX MONTHS.
THEN IF CHEQUE GETS DISHONORED YOU ARE TO COMPLY WITH PROVISO (b)ABOVE which asks you to send the drawer a 'notice in writing'["within thirty days"] of the receipt of information by you(payee or holder in due course) from the bank regarding the return of the cheques as unpaid,......SO NOTHING MORE IS REQUIRED TO BE DONE ON YOUR PART.
IT IS DRAWER ON WHOM LEGAL DUTY IS CASTED UNDER PROVISO CLAUSE(c)THAT AFTER RECEIVING
SUCH A NOTICE HE SHOULD PAY THE AMOUNT WITHIN 15 DAYS.
THEN IN YOUR CASE IF CHEQUE WAS BOUNCED AND NOTICE OF DEMAND IN WRITING WAS SENT BY YOU WITH IN 30 DAYS COUNTING FROM INTIMATION OF BOUNCE RECEIVED BY YOU FROM BANK THEN YOU HAVE COMPLIED WITH PROVISO(a)&(b).EVEN IF YOU HAVE GIVEN HIM TIME OF 30 DAYS TO PAY OFF IT MAKES NO DIFFERENCE BECAUSE YOU CAN NOT ENLARGE THE TIME FIXED BY LEGISLATURE IN PROVISO (c) BEING 15 DAYS CASTED ON DRAWER.A DRAWER WOULD GET BENEFIT OF PROVISO (c)ONLY WHEN HE PAYS WITH IN 15 DAYS.
FURTHER MORE IN YOUR CASE THE DRAWER HAS NOT PAID YOU AT ALL BE IT 15 DAYS FROM SERVICE OF DEMAND OR 30 DAYS(as inadvertently given by you,but had it been 7days,SAY LESS THAN 15 DAYS such a controversy could have arisen),THEN HERE OFFENCE UNDER SECTION 138 IS MADE OUT AND DRAWER CAN NOT TAKE PLEA THAT YOUR DEMAND NOTICE ASKED TO PAY WITH IN 30 DAYS,OF COURSE HAD HE PAID YOU WITH IN 30 DAYS YET YOU WERE TO FILE COMPLAINT ON EQUITY COURTS MIGHT GET INCLINED TO ACCEPT HIS PLEA.BUT WHERE SUCH A SITUATION S ARISING?I KNOW HAD YOU BEEN PAID WITHIN 30DAYS YOU MIGHT HAVE NOT POSED ANY QUERY HERE.
prabhakar singh
(Expert) 29 July 2012
ONE THING MORE PLEASE DO NOT ADVENTURE AND DO NOT SEND ANY FRESH NOTICE AT ALL.
