138 of ni act
N.J. MISHRA
(Querist) 02 July 2014
This query is : Resolved
Dear Member,
our company is a recruitment agency located in Mumbai. We are having office in Singapore which act as our Principal.
That one crew was recruited through our Mumbai Company. The employment contract was executed by and between the crew and our principal which is located in Singapore but the contract was signed by our Mumbai Company on behalf of our Principal which is located in Singapore.
The crew could not joined the ship as he was found under the influence of alcohol; hence, as per employment contract he is laible to reimburse the entire cost which our singapore company had incurred towards crew's travelling and other miscellaneous expenses.
Accordingly crew issued post dated cheque in favour of our Mumbai Company which got bounced.
Below i have pasted draft of demand notice for your perusal. The members are requested to go through the draft and kindly advice whether our Mumbai company can file case u/s. 138 of NI Act on behalf of Singapore company
To,
....................,
.....................
.....................
Under the instruction of the management and on behalf of our principal, we address you as under;
1. That vide contract dated ........., you were appointed as an ..... for the ship................. for a total period of ....months and further agreed to abide with all the terms and conditions inter alia mentioned therein.
2. That after completing all the required joining formalities, you were required to join the aforesaid ship; however, to our shock and surprised, you failed as you were found under the influence of Alcohol. That due to this act of yours our principal suffered unnecessary financial loss of Rs. ........., incurred towards your travelling and other miscellaneous expenses.
3. That as per your employment contract you were liable to reimburse to our principal the entire amount incurred on you and accordingly on behalf of our principal we demanded the said amount from you.
4. That since our principal is located in Singapore and since it will be difficult for our principal to clear the cheque, we under our principal’s instruction requested you to issue the cheque in our company’s favour and that towards the discharge of your contractual obligation / liability and with a view of reimbursing the said amount, you issued six (6) post dated cheques as detailed below;
..............................
..............................
5. That when the cheque bearing No. ..........., dated .........., for Rs. .............drawn on ............bank, Churchgate Branch, Mumbai, was sent by us for collection through our banker ...........Bank, we were surprised to find that the same has been returned unpaid by your banker with remarks “Funds Insufficient” in your account and you having failed to arrange for its payment, the said cheque has been returned to us by our banker.
6. That later your father contacted us with a request to re – present the said cheque to the bank, saying that earlier there was no necessary balance in your account and that arrangement has been made so as to clear the said cheque. Then accordingly we again presented the said cheque to the bank on 25/06/2014, the said cheque again got dishonoured.
7. That from the total behaviour on your part with respect to the said transaction, we have come to the tacit conclusion that while issuing the said cheque, you had dishonest intention to cheat us and our principal of the said amount.
8. That from the total behaviour on your part, we have drawn clear inference that you have done so with a view to deceiving and cheating us and our principal. That it also appears that your intentions were not good when you issued the said cheque for the amount which you did not have in your account, and since you knew it very well, you have tried to commit not only a civil breach but also a criminal offence within the provision, meaning and interpretation of civil as well as criminal law.
9. That since the said cheque has been dishonoured for the reason of “insufficiency of funds”, you may be held civilly as well as criminally particularly under section 420 of the Indian Penal Code, section 138 of the Negotiable Instrument Act and the provisions of the Code of Civil Procedure.
10. That under the circumstances, you are hereby called upon to pay the cheque amount within seven (7) days from the receipt of this notice, failing which, we will under the instruction of our principal finally be constrained to initiate appropriate legal action against you including filing of the criminal complaint and in that event you would be exclusively responsible / liable for any repercussion arising out of this legal action which may include costs of the legal proceedings and jeopardizing your future employment, WHICH PLEASE NOTE. If you, however, choose to avoid this notice, you may be doing at your own risk and peril, WHICH PLEASE NOTE FURTHER.
Yours truly,
ajay sethi
(Expert) 02 July 2014
commercial query . company can afford legal fees
N.J. MISHRA
(Querist) 02 July 2014
dear sir,
i agree that company can afford legal fees but at this stage i cannot refer the case to an advocate and since self being the legal officer, i have to send all the initial notices; hence, the draft was send to you all to check the legality.
