Sec 138 n i act
Dr.Gaurang N. Gandhi
(Querist) 10 November 2011
This query is : Resolved
my client is accuse..
the council of complainant had issued statutory notice within due time. but the mentioned amount of cheque is 3,50,000/- instead of the true amount 2,50,000/-.
the last para of the notice also show the wrong amount can we take benefit of the same?
they have filed case in time.
one more ting is that the account was closed in 2009 and the complainant had wrongly misplaced the cheque and deposited in the bank in janu 2011 and the cheque is returned with the endorsement of "account closed in janu 2009".
please advise me...
Nadeem Qureshi
(Expert) 10 November 2011
Dear Gandhi
if the cheque issued for a sum of rupees 2.5 lakhs and the demand in notice is 3.5 lakhs, then the complaint is not maintanable. because in demand notice only cheque amount can be demand not any other amount.specificly. if the mention is that with the interest so and so % per annum then the complaint can me maintain.
account close is no defence 138 is applicable on it too.
feel free to call
Shonee Kapoor
(Expert) 10 November 2011
Also how can the cheque be deposited so late, when the validity of cheque is only SIX months
Regards,
Shonee Kapoor
harassed.by.498a@gmail.com
prabhakar singh
(Expert) 10 November 2011
Was it an undated blank cheque????
Advocate. Arunagiri
(Expert) 10 November 2011
Even if the account is closed and the cheque is returned for that reason, offense is made out.
Mentioning of a wrong amount in the notice, will not invalidate the proceedings.
Surendra Gupta
(Expert) 11 November 2011
As p;er sec 138 of NI Act, a criminal complaint is maintanable only if the cheque if returned with the remarks "INSUFFICIENT FUNDS". As such, the criminal complaint against you is liable to be dismissed by the Hon"ble Court
Advocate. Arunagiri
(Expert) 12 November 2011
The account is closed only when the entire money is taken by the account holder. So, if the cheque returns for account closed, it is presumed that there is no funds to honour the cheque.
