Cheque bouncing
Pratap
(Querist) 28 November 2012
This query is : Resolved
within how many days can one file a case under sec 138 after bounce of chq & what is jurisdiction of Court & are the court fees to be paid
Raj Kumar Makkad
(Expert) 28 November 2012
Notice should be given to accused person within 1 month of receipt of information from banker giving him a time of 15 days to make payment and if no payment is made within the prescribed limit then the complaint should be filed within next one month.
There is no court fee over such complaint rather a token stamp fee of Rs. 10/- is required to be affixed thereto.
Gaurang S. Rangunwala
(Expert) 28 November 2012
The jurisdiction of the court is where is the transaction of cheque has been take place. and moreover i agree with Mr. Raj Kumar Makkad. But my advice is consult the advocate because cheque bounce is a criminal offence and N.C. Office.
Regards.
prabhakar singh
(Expert) 28 November 2012
The offence under Sec. 138 of the Act can be completed only with the concatenation of a number of acts. Following are the acts, which are components of the said offence;
1. Drawing of the cheque,
2. Presentation of the cheque to the bank,
3. Returning the cheque unpaid by the drawee bank,
4. Giving notice in writing to the drawer of the cheque demanding payment of the cheque amount.
5. Failure of the drawer to make payment within 15 days of the receipt of the notice.
It is not necessary that all the above five acts should have been perpetrated at the same locality. It is possible that each of those five acts could be done at five different localities. But concatenation of all the above five is sine qua non for the completion of the offence under Sec. 138 of the Act.
The presentation of cheque should be within its validity period. Generally a cheque were valid for six months,but as of now it is 3 moths.
Notice is a very important stage. It is the non-payment of dishonoured cheque within fifteen days from the receipt of the notice that constitutes an offence. Issuing of a cheque and its dishonour is not an offence. The offence is when the drawer receives a notice from the payee and he fails to pay the dishonoured cheque amount within the grace period of 15 days that constitute an offence. Any demand made after the dishonour of cheque will constitute a notice.Needless to say, the period of one month for filing the complaint will be reckoned from the day immediately following the day on which the period of fifteen days from the date of the receipt of the notice by the drawer expires.
Following steps are then required:
1.Cheque should be presented to the bank for encashment within its validity period.
2.Within fifteen days from the receipt of return memo indicating reason of dishonour, a notice should be sent demanding the amount of dishonoured cheque.
3.If the drawer does not pay the amount of dishonoured cheque within the grace periodsay,15 days, a complaint thereafter should be filed within one month in the relevant court of Metropolitan Magistrate/Judicial Magistrate as the case may be, having jurisdiction.
On the point of jurisdiction the notable judgement is:K. Bhaskaran v. Sankaran Vaidhyan Balan; by Supreme Court,where when sumerized,following is the resultant:
Complaint can be filed at any of the 5 places: -
1. Where the cheque was drawn.
2. Where the cheque was presented for encashment.
3. Where the cheque was returned unpaid by drawee bank.
4. Where notice in writing was given to drawer of cheque demanding payment.
5. Where drawer of cheque failed to make payment within 15 days of receipt of notice.
Each of the fine acts constituting offence could be done at 5 different localities. Hence one of the Courts exercising jurisdiction in one of the five local areas can become the place of trail for the offence under sec. 138 of the Act. In other words, the complainant can choose any one of those courts having jurisdiction over any one of the local areas within the territorial limits of which any one of those five acts was done. As the amplitude stands so widened and so expansive it is an idle exercise to raise jurisdictional question regarding the offence under Sec. 138 of the Act.
