Cheque case
jains
(Querist) 05 February 2019
This query is : Resolved
Is it possible to issue legal notice after the prescribed period of one month as statuary step to initiate criminal case u/s 138 NI act. And if it is so and if the debt under the cheque is not cleared with in the 15 days period, can complainant file case invoking the act?
C.V.Kansara
(Expert) 06 February 2019
you must explait for reason of delay
Suhail suhail
(Expert) 06 February 2019
If the cheque is still valid to be presented to the bank,(usually the cheque has 6 months o time to be presented for enchantments) if your cheque is still valid present to the bank and let them issue a fresh memo on the cheque and that shall give you the date for proceeding legally.
Dr J C Vashista
(Expert) 07 February 2019
No, the legislature is unambiguous.
During the period of validity you may present it again and issue notice on dishonour.
However, you have the option to initiate proceeding u/o XXXVII CPC for recovery of cheque amount.
P. Venu
(Expert) 07 February 2019
Yes, the legal provision as to Section 136 is quite unambiguous:
138. Dishonor of cheque for insufficiency, etc., of funds in the accounts
Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honor the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall without prejudice to any other provisions of this Act, be punished with imprisonment for a term which may extend to one year, or with fine which may extend to twice the amount of the cheque, or with both:
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 in due 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, within fifteen days of the receipt of information by him from the bank regarding the return of the cheque 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.
Explanation: For the purpose of this section, "debt or other liability" means a legally enforceable debt or other liability.
Furthermore, the notice is to be given within the period of 15 days from the receipt of theinformation from the Bank.
Of course, you have the option of a civil action.
P. Venu
(Expert) 07 February 2019
Yes, the legal provision as to Section 138 is quite unambiguous:
138. Dishonor of cheque for insufficiency, etc., of funds in the accounts
Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honor the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall without prejudice to any other provisions of this Act, be punished with imprisonment for a term which may extend to one year, or with fine which may extend to twice the amount of the cheque, or with both:
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 in due 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, within fifteen days of the receipt of information by him from the bank regarding the return of the cheque 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.
Explanation: For the purpose of this section, "debt or other liability" means a legally enforceable debt or other liability.
Furthermore, the notice is to be given within the period of 15 days from the receipt of theinformation from the Bank.
Of course, you have the option of a civil action.
C.V.Kansara
(Expert) 09 February 2019
If cheque is within the period of validity, i.e., six months or three months whichever is applicable, present it before the Banker again.
Guest
(Expert) 09 February 2019
Any Cheque would be valid for 3 month only for Presentation from april 2012
