Judgements on Representation of Cheque and NI act 138
Dheeraaj Siingh
(Querist) 29 June 2008
This query is : Resolved
Sir, A cheque was issued to our vendoe on 22nd Aug'06.Cheque got bounced due to insufficient fund. No notice was issued to our company for recovery of the sum. Later when our vendor realised that time is lapsed already for serving notice he again represented the cheque in the month of Oct'06 and claims he has issued notice to our company after that, in support he has submitted one recepit of postal department without any AD in support. Also our company never received any such notice.What's the legal/judicial view under NI act 138 applicability in this case.
amit gupta_lawyer
(Expert) 29 June 2008
well notice after the cheque bouncing is essential to proceed under 138 negotiable act. if the notice is not issued with in the month of cheque bouncing then the person loose the right to file the complaint. how ever the person can always represent the cheque and get it bounce for issuing the notice before the cheque get stale. however if the notice is issued after the cheque bounce but complaint is not filled with in the given time period then person loose the chance of getting the cheque bounce again and to issue the fresh notice the limitation period to file the complaint to be calculated from the first notice only.
KamalNayanSaxena
(Expert) 29 June 2008
Cheque can be presented any number of times during period of its validity-On each presentation of the cheque and its dishonour a fresh right and not cause of action accrues in favour of payee-For dishonour of cheque, there can be only one offence-Once the payee gives a notice, he forfeits right of presenting cheque again-Serving of notice is a matter of evidence.
Jatin Sapra 9312223345,Delhi
(Expert) 29 June 2008
As it is already been answered about the presentation anbd limitation. The other thing that whether it was served upon you and your company or not that is a matter of trial and you will get your chance in the cross examination of the witness of postal department at this stage this is suffice that the complainant have sent that on the right address.
Dheeraaj Siingh
(Querist) 30 June 2008
Legal Notice u/s 138 should be issued after first presentation of cheque & its dishonour or Payee have the right to isseue Notice after second & Third presentation & its dishonour. Please clearify the date of 30 days period of Notice.
KamalNayanSaxena
(Expert) 30 June 2008
In your case alleged notice is served once only, though cheque was represented twice. Period of 30 days shall be computed from the knowledge of dishonour of cheque in the month of Oct.06
arunprakaash.m.
(Expert) 30 June 2008
The cheque can be presented for collection any number of time during the validity of its time. But the cause of action can be taken place at only one point of time during its validity. Once the notice has been issued under 138 then there is a cause of action. After issunig notice you can present the cheque for encashment but you are there after waiving your right of cause of action. You can file case under the limitation of first cause of action only.
Srinivas.B.S.S.T
(Expert) 30 June 2008
As my friends already cleared the query with regard to cause of action. Now with regard to alleged non-service of the notice. You can file a petition to sendfor the Postal officials with relevant records pertaining to the postal receipt they have filed. But this could be done after commencement of trial.
