Notice u/s 138
Deepak Nair
(Querist) 12 November 2011
This query is : Resolved
What steps can be taken in case we fail to send a notice under section 138 of NI Act within 30 days?? Eg: One failed to send a notice in time and wants to send the notice after a delay of 20 days? Can this delay be condoned in court? If not what other measure can be taken to recover money through criminal proceedings??
Nadeem Qureshi
(Expert) 12 November 2011
Dear Deepak nair
there is no other provision according in NI Act but you can file a criminal compalint u/s 406 IPC.
ajay sethi
(Expert) 12 November 2011
what you can due is present the cheque again .
once cheque bounces again you issue legal notice on account of dishonour .
prabhakar singh
(Expert) 12 November 2011
s.138(b)of N I Act reads "(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"
The words"3["within thirty days"]" before amendment read only 15 days.The period was thought by the legislature inadequate hence the same was enhanced.
This notice as well as its time is statutory requirement if put in gear gives
the drawer an option to decide should he commit the offence or not and if does not comply the notice within next 15 days of the notice by paying off to the payee or the holder in due course,OFFENCE GETS COMMITTED,that way it is a very technically
designed recognition of offence by the statute,hence IMPOSSIBLE OF COMMISSION WITHOUT NOTICE.
The court does not have any power to condone any delay in serving the notice.
The court can condone delay only caused in filing the complained which has been expressly conferred on it by the statute and the same does not lay that delay in serving notice can be also condoned.Nor it could be because the role of court arising after commission of the offence and
typically ,as seen,the very opportunity to OPT to commit or not to commit the offence
is arising only after service of the notice.
Hence i am of my conclusive opinion that no case u/s138 can now proceed since statutory period of 30 days to send notice has lapsed.
Only Civil action left now.
prabhakar singh
(Expert) 12 November 2011
However if 6 month have not elapsed from the date of cheque and if it is re presentable for collection then every thing is surviving
should it bounce again, comply the provisions within time of 30 days and on his default in not complying the notice offence undr section 138 shall stand attracted.
Deepak Nair
(Querist) 12 November 2011
Dear Sirs,
The cheque is not presentable again as the same has a stamp of "Account Closed" on it.
Sankaranarayanan
(Expert) 12 November 2011
This is repeated query . IF you failed to sent notice with in the stipulated time then it is time bare, but the reason for the delay is acceptable then it is acceptable.
prabhakar singh
(Expert) 12 November 2011
Then sorry!
It is just his luck that despite being guilty
he can not even be charged of the offence.
Advocate. Arunagiri
(Expert) 12 November 2011
Delay in filing the criminal complaint can be condoned, but the delay in sending the notice can not be condoned.
You can represent the cheque, new cause of action will arise, and issue fresh notice.
Deepak Nair
(Querist) 12 November 2011
Dear Sirs,
Thanks a lot for your valuable comments.
Best Regards.
Shonee Kapoor
(Expert) 12 November 2011
You have been advised in various ways, choose the best which suits your situation.
Regards,
Shonee Kapoor
harassed.by.498a@gmail.com
Jebaraj Jasper Jacob
(Expert) 13 November 2011
Hi Deepak,
Just present the cheque again for collection if the cheque is valid and issue notice with in thirty days from the date of its return because cause of action for filing a complaint starts only after issuance of notice.
Deepak Nair
(Querist) 26 November 2011
Dear Sirs,
Thanks a lot for your valuable comments
