Negotiable instrument act.
pravin karande
(Querist) 19 March 2013
This query is : Resolved
Notice sent to the drawer asking the amount mentioned in cheque. but forgot to mention the cheque no. in notice. can this typing mistake bar the complainant to file a complaint under section 138 of negotiable instrument act.
Advocate M.Bhadra
(Expert) 19 March 2013
No,your prima-facie evidence are bank's note and return cheque, however mention the cheque no.in your petition at the time of filing of complaint to Court.
Prima facie evidence – cannot be quashed – clear averments in complaint – prima facie evidence that accused was Chairman at the time of issuance of cheque – matter for trail – cannot be quashed. 2002 Crl.L.J. 2462 Mad.
Devajyoti Barman
(Expert) 19 March 2013
This is not a vital mistake Do file the case anyway.
Raj Kumar Makkad
(Expert) 19 March 2013
The mistake shall not vitiate the validity of the notice merely on that ground.
DEFENSE ADVOCATE.-firmaction@g
(Expert) 20 March 2013
First of all the citation referred is not applicable to given situation.
NI 138 is for punishment and for recovery of money so every mistake will go in favor of accused.
There is much hype for bank slips, law provides only for presumption and accused has right to rebut it.
This is what the provision about bank slips says-
1[146. Bank's slip prima facie evidence of certain facts.
The Court shall, in respect of every proceeding under this Chapter, on production of bank's slip or memo having thereon the official mark denoting that the cheque has been dishonoured, presume the fact of dishonour of such cheque, unless and until such fact is disproved.]
1. Section 143 to 147 ins. by Act 55 of 2002, sec. 10 (w.e.f. 6-2-2003).
Anirudh
(Expert) 20 March 2013
THIS IS REALLY A VITAL MISTAKE. HOW DO THE ACCUSED KNOW FOR WHICH DISNOHOURED CHEQUE YOU ARE ASKING PAYMENT, THROUGH THE STATUTORY NOTICE?
IF YOU HAVE FILED THE CASE, BETTER WITHDRAW.
IF VALIDITY IS STILL THERE, PRESENT THE CHEQUE AGAIN. GET DISHONOUR SLIP. THEN ISSUE FRESH DEFECT FREE NOTICE AND THEN PROCEED.
I do not know how the experts are saying that this is not vital? It is one thing to say that having committed the mistake there is no other alternative, better try to cover up in your case. But to say that it is not vital, I differ.
V R SHROFF
(Expert) 20 March 2013
Accused may not receive Notice and it may come back to you.
If within time limit [30 days], issue corrected Legal Notice immediately. Use next notice for 138, so in-case first not proves illegal & void for chq no error, your second notice becomes First Legal Notice. Despite that if accused don't pay, lodge 138 compl under 2nd notice.
If he reply, do it otherwise.
Raj Kumar Makkad
(Expert) 24 March 2013
It is very strange to know from an expert that a criminal complaint filed under section 138 NI Act can be withdrawan and a fresh notice thereto may be got issued and against the complaint may be filed thereto.
Is there any case law for our knowledge?
