Notice
Querist :
Anonymous
(Querist) 08 March 2011
This query is : Resolved
Dear All,
I issued notice of u/s 138 only partner name not firm name then compliant is maintenable.
Smruti
Basavaraj
(Expert) 08 March 2011
ultimately partners will held responsible for acts of the firm. Case is maintenable
Advocate. Arunagiri
(Expert) 08 March 2011
The notice can be issued in the name of any partner, but in the case you to have include all the partners, if the cheque was issued by the partnership firm.
vijayan
(Expert) 09 March 2011
There is no chance to stand the complaint U/S 138 of NI act, since the drawer of the cheque is the company and not the partner and the liability of the partner( Director) is limited. Please go through the provision and understand the word "drawer". here the company is the drawer and not the single partner.
138. Dishonour 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 honour 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 2["a term which may extend to two 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 induce 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, 3["within thirty days"] of the receipt of information by him from the bank regarding the return of the cheques 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.
DEFENSE ADVOCATE.-firmaction@g
(Expert) 13 March 2011
Very nice Vijayan a healthy departure from I agree and I also agree replies.
The offense of NI 138 is against the holder of cheque and notice must be issued to the holder , co accused can not be presumed.
For vicarious liability the roles of other co accused has to be specified., otherwise complaint will be dismissed and even counter action for false complaint.
