cheque bounce
barun deka
(Querist) 26 November 2009
This query is : Resolved
a cheque gets dishonoured three months back. can i now present the cheque to the bank again so that it gets dishonoured again and within a months time i can file notice under s138 of NI Act? i mean is there a bar to present a dishonoured cheque more than once to avoid the limitation of s138??
Silabhadra Sastry Advocate
(Expert) 26 November 2009
Hi Barun,you can present the cheque for sevaral time within 6 months from the date its issue.But once after bounce,you have issued demand notice to the payee of the cheque, then you have to file the case u/s138 NI Act ,or presenting the cheque again and filing a case in case of bouncine then the case will loose its force.Silabhadra Sastry,advocate,Bhubaneswar,shastry.adv@gmail.com
Sachin Bhatia
(Expert) 26 November 2009
If the cheque is within limitation i.e. six months you can present the cheque to the bank again.
bail for all call-9811443969
(Expert) 26 November 2009
yes you can present it again till the date mention on the cheque is not more than 180 days. till that time you can present this cheque again and again and it does not loose your case in any manner.
in the recent judgements you can even present cheuque even after sending demand notice and there is not any adverse effect on you case as the cheque is an admitted liability itself and simultaneously you can file the civil case for damages i.e. for the recovery of cheque amount under order 37 CPC(but here you have to pay the stamp duty on the claim amount)
rupareliya
(Expert) 26 November 2009
u can present it again
but u have to send demand notice within 30 days of bank recept
case law
2001 (1) G.L.H. 546 SUPREME COURT K. T. THOMAS & R. P. SETHI, JJ.
(M/s.) Dalmia Cement (Bharat) Ltd....Appellant Versus (M/s.) Galaxy Traders & Agencies Ltd. & Ors., ...Opponents
Criminal Appeal No. 957 of 2000 Dt. 19-1-2001
(A) Negotiable Instruments Act, 1881 - Ss. 138, 140 - Code of Cri. Procedure 1973 - S. 482 - On first presentation, cheque was dishonored - Notice issued by complainant, however accused intimated that only empty envelope is received - Accepting averments made by accused, after presenting cheque and its dishonour second time, fresh notice is issued - Receipt of Second notice not disputed - Accused filed quashing Proceedings and took Plea of limitation - High Court quashed the complaint as being time barred - Held, High Court erred in quashing the complaint - Complaint held filed within limitation from the date of receipt of Second notice - Order of High Court set aside. [@page546]
It is conceded in this case that in response to the notice sent by the appellant through their Counsel on 13th June, 1998, the respondents herein, vide their letter dated 20th June, 1998, intimated "received one empty envelope without any content in it. Therefore request you to kindly send the content, if any". This intimation was received by the appellant on 30th June, 1998, the day on which the period of limitation on the basis of earlier notice was to expire. They had exercised the option to accept the averments made by the respondents in their letter dated 20th June, 1998 and issue a fresh notice after again presenting the cheque. The respondents have not denied the issuance of their letter dated 20th June, 1998. Despite admitting its contents, they opted to approach the High Court for quashing the proceedings merely upon assumption, presumption and conjectures. They tried to blow hot and cold in the same breath, stating on the one hand that the notice of dishonour has not been received by them and on the other praying for dismissal of the complaint on the plea that the complaint was barred by time in view of the notice served by the appellant which they had not received. The plea of the respondents was not only contradictory, and an afterthought but apparently carved out to resist the claim of the complainant and thereby frustrate the provisions of law. (Para 10)
The High Court fell in error by not referring to the letter of the respondents dated 20th June, 1998 and quashing the proceedings merely by reading a line from para 6 of the complaint. The appellant in para 7 of their complaint had specifically stated that "Even though the complainant is not admitting the said allegation, on abundant caution the complainant presented the cheque again on 1-7-98 to the drawee bank through the complainant's bankers, Punjab National Bank. The cheque was again dishonoured by the drawee bank on 2-7-98 and a registered lawyer notice was issued to the 1st accused-Firm as well as to the 2nd accused intimating the dishonour of the cheque and demanding payment. The accused have received the notice on 27-7-98. The accused did not make any payment so far The receipt of the second notice has concededly not been denied by the respondents. (Para 11)
Under the circumstances the appeal is allowed and the order of the High Court quashing the complaint filed by the appellant is set aside. The trial Magistrate is directed to proceed against the respondents in accordance with the provisions of law and expeditiously dispose of the complaint. (Para 12)
(B) Negotiable Instruments Act, 1881, Ss. 138, 140 - General Clauses Act, 1897, S. 27 - Presumption of service of notice - Where a party takes a stand that the notice was not received, the other party can take appropriate steps for effective service of notice - Where the party denied having received the first notice, and the other party presents cheque again and upon its dishonour, issues a second notice within the statutory period, complaint filed within the period from the date of second notice would be valid & proper. [@page547]
S. 27 of the General Clauses Act deals with the presumption of service of a letter sent by post. The despatcher of a notice has, therefore, a right to insist upon and claim the benefit of such a presumption. But as the presumption is rebuttable one, he has two options before him. One is to concede to the stand of the sendee that as a matter of fact he did not receive the notice, and the other is to contest the sendee's stand and take the risk for proving that he in fact received the notice. It is open to the dispatcher to adopt either of the options. If he opts the former, he can afford to take appropriate steps for the effe
H. S. Thukral
(Expert) 26 November 2009
Dear Apurva Pandey
I would like to see the judgment where in after sending a notice and representing the cheque again for a renewed cause of action to file the complaint has been allowed.
niranjan
(Expert) 26 November 2009
Second notice was issued only because it was contended that the envelope was received empty,so there was no notice or demend from the complainant accepting the say of the accused,in that light the Hon.Court has allowed second notice.I think this cannot be made applicable in a case where first notice was accepted by the accused.But in the present case as no first notice is issued,the cheque can be presented again and notice can be given.
adv. rajeev ( rajoo )
(Expert) 26 November 2009
within six months u can present the cheque number of times, but once notice is issued u cannot present the cheque again for encashment.
Poonam Upadhyay pathak
(Expert) 26 November 2009
Cheque can be presented in the bank number of times within 6 months, but once notice is issued u cannot present the cheque.
Gaurav mishra
(Expert) 01 December 2009
you can present the cheque number of times with in the six month limit of date written on cheque but you have to send 138 ni act notice with in one month of you gat the cheqe dis honored information
