S.138 of n.i.act
adv.durgadas k.kulkarni
(Querist) 26 October 2013
This query is : Resolved
R/sir,
X issued cheque in favour of Y on 26/09/2013,presented on 28/09/2013 returned on same day with reason "account closed".
Today Y approached me and asked to issue legal notice u/s. 138.Limitation for issuence of notice comes to an end tomorrow. Tomorrow is holiday.
Can I issue notice on Monday (28/10/2013)?
Whether the date on which the returned memo has received include in the 30 days of limitation?
GIRISH AGRAWAL
(Expert) 27 October 2013
DATE IS TOO SHORT
================
YOU CAN SEND NOTIC BY ANY LOCAL COURIER.....
........ UNDER THE LIMITATION.
malipeddi jaggarao
(Expert) 27 October 2013
The notice can be dated on holidays. Nowadays courier services are available on holidays. Send by courier keep the proof. If you wish, you can send by post on 28th again.
prabhakar singh
(Expert) 27 October 2013
DEAR adv.durgadas k.kulkarni !
Time to demand payment for a bounced cheque by payee as envisaged by 138 (b)of NIAct, is 15 days(and not 30 days) from the date of intimation from bank and in the instant case it was expired on 13/10/2013.
Read the provision quoted below:
"(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"
Since intimation is of 'account closed' what for it would be re presented for
re collection although time is there,(as that
is 3 months from issue date being 26/09/2013)
and after re intimation of dishonor from bank
notice can be sent with in 15 days .
BUT
Now better file FIR of 420 with allegation that drawer had issued cheque with intention to cheat payee issued a
cheque of an account which he knew
fully he had closed and thus have
cheated the payee.
V R SHROFF
(Expert) 27 October 2013
Adv D. Kulkarni,
Regards,
Do you have any documentary evidence that u recd knowledge of chq rtn memo on 28/9/2013??:: ""of the receipt of information by him"" is important word.
Though Intimation is dated 28/9/2013, you might be out of city, and received information when u arrived on 30/9/2013., or bank delivered it to you on 30/9/2013~!!!
And under the circumstances, you send notice , declaring you received information of chq reurn, on 30/9/2013, and hence your Limitation pereiod to issue Notice expires only on 30-10-2013.
To my knowledge, GPO accept post with LATE FEES, ON SUNDAYS AND HOLIDAYS TOO, TILL 8PM.
iF U HAVE e mAIL OF ACCUSED, SEND IT BY E Mail
SEND NOTICE BY E Mail/ / Fax/ REGD post AD/ SPEED POST, AS WELL AS COURIER .
Even you can try deliver it By Hand, with Witness in case he refuse to accept.
Once Posted, your duty is over.
You need not worry when he receive/ and or receive it or not:::
You have another choice to re-deposit cheque and after getting Rtd Memo, issue notice.
But you cannot send notice twice.
Whether you recd information of chq rtd memo on 28/09 or 30/09 is a matter of evidence, and by the time process will be issued.
You have opportunity to file FIR 420 ipc too, as a/c was closed.
so go ahead, and do it today itself.
You win on both the side.
Adv Shroff
prabhakar singh
(Expert) 27 October 2013
I May be allowed to recapitulate the law that a notice of demand has to be sent
within 15 (FIFTEEN)DAYS and NOT 30 days.
Then unless you have some proof that bank intimation dated 28/09/2013 was received
by you on or after 12/10/2013,I do not think your exercise of serving notice to day or tomorrow would be for any benefit to your client.
prabhakar singh
(Expert) 27 October 2013
RMS (Railway Mail Service)GETS OPENED EVERY
EVENING EVEN ON HOLIDAYS.
V R SHROFF
(Expert) 27 October 2013
Thanks to Shri Prabhakarji for pointing out "Railway Mail Service, open 24 hrs -7 days a week"
Glad to know RMS is better answer, and it increased and Sharpen my knowledge.
And Amendment made by N.I. Act, 2002 " (b)"Bouncing of Cheque- Provisions amended "Provision for imprisonment upto 2 years against present one year "Period for issuing Notice to drawer increased from 15 days to 30 days"
We being in constant practice of 138 cases in court, keep check. As u r retired, u missed the amendment of 2002. 11 years. it's OK.
Once more , Thanks for RMS.
prabhakar singh
(Expert) 27 October 2013
Thanks to Mr. VR SHROFF for pointing out the mistake I have been committing with regard to time of notice.
the amended provision reads as below:
"(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"
I REGRET AS:
THEN MY FIRST ADVICE WAS WRONG AND WAS RIGHTLY CORRECTED BY MR.VR SHROFF.
RMS SERVICES ARE DAILY BUT NOT FOR 24*7 but for few hours in the evening(perhaps 18hrs to 20 hours and for only 02 hours on sundays and holydays.
V R SHROFF
(Expert) 27 October 2013
Most Welcome Shri Prabhakarji,
It happens, it's OK. after all a legal practice.
And it also means GPO [General Post Office at Mumbai] is better than RMS. (for Late , emergency issue of Time bound Legal Notice)
prabhakar singh
(Expert) 27 October 2013
GPO FACILITIES ARE NOT AVAILABLE IN EVERY CITY.
ajay sethi
(Expert) 27 October 2013
agree with Mr shroff .
DEFENSE ADVOCATE.-firmaction@g
(Expert) 27 October 2013
1) The whole problem in cheque cases is that the accused do not engage serious legal assistance and hence valuable defense opportunities are lost.
2) From complainant point of view Mr Shroff is assertive and most of the time it works in trial courts just because the defense is not well prepared.
3) coming to the main issue the law says WITHIN THIRTY DAYS and not from thirty days.
See what APEX COURT says in similar circumstances-
clause (b)
provides for issuance of notice "to the drawer of the cheque within thirty days of the receipt of information". The words "within thirty days of the receipt of information" are significant.
The Parliament advisedly did not use the words `from the date of receipt of information' in Section 138 of the Act.
