Sec-138 of negotiable instrument act
AMIT KUMAR SHARMA
(Querist) 10 April 2013
This query is : Resolved
Dear Sir,
I had received six cheques from a person against recovery and cheques had been submitted in the bank. Now cheques have been bounced and I have also sent notice to Drawer within 30 days from the date of dishonored and Drawer has replied that he has given me my money in cash.
My advocate is saying to resubmit the cheques and when these are to be dishonored then we shall file case u/s 138.
Q.1 Can I redeposit the cheques whereas Drawer has replied for first notice in writing that he has given money in cash.
Q.2 What profit can be if I deposit against.
Q.3 Any time limit is there to file case u/s138 from the date of dishonored except time for notice since time for notice is 30 days from the date of dishonored which I have sent and Drawer has replied.
Please help me and advice what should I do in that case.
Regards,
amit
prabhakar singh
(Expert) 10 April 2013
ANSWERS:The advice of your lawyer is misconceived.
1.No! You should never redeposit them.
2.Not any profit but just you shall lose your right to prosecute him(drawer).
3.the drawer was expected to pay you within 15 days from the date your notice was served upon him which did not but gave you a false reply,hence your complained is to be filed within 30 days counted from his last opportunity day to pay you,in other words 45 days from the date your notice was served upon him.
In case this time(limitation) has run away,then delay condonation can be sought from the court applying along with complaint.
NO REDEPOSIT AT ALL NOW.
ajay sethi
(Expert) 10 April 2013
since you have already issued legal notice and accused has replied to said notice better file complaint under section 138 NI within period of one month . accused would have to prove cash payment has been made to you .
simultaneously file summary suit
AMIT KUMAR SHARMA
(Querist) 10 April 2013
Dear Sir,
Sorry, I could not gave you detail of date on which cheques were dishonored.
Now giving, Cheques are bounced on 07.02.2013 and I received information from bank on 08.02.2013. I sent notice on 07.03.2013 and he replied on 16.03.2013.
1. Please advice, can I file suit as per above date, if yes, how much time I have to file suit.
2. You advised me time for suit 45 days, please tell me 45 days from when and where it is mentioned so that I can discuss with our advocate.
3. Please help me about this matter that what remedy should I use.
ajay sethi
(Expert) 10 April 2013
summary suit can be filed within period of 3 years . for cheque bouncing case file it by 15th April 2013
Adv k . mahesh
(Expert) 10 April 2013
yes do not wait first you file through your lawyer 138 ni act and it is the duty of opposite party to prove that he paid in cash to you
AMIT KUMAR SHARMA
(Querist) 10 April 2013
Dear Sirs,
My advocate has fraud with me in sending the notice to Drawer.
Advocate prepared the notice on 08.03.2013 but he sent it on 11.03.2013 which is mentioned on the slip of registered AD.
But the accused has replied of this notice on 16.03.2013.
Is it valid for filling the suit whereas the time had crossed of 30 days as per the date of dishonored cheques i.e. 07.02.2013.
ajay sethi
(Expert) 10 April 2013
forget about filing of cheque bouncing case . file summary suit instead . notice has to be sent within 30 days of intimation of cheque dishonour . in your case notice was sent after said period . dont take a chance
AMIT KUMAR SHARMA
(Querist) 10 April 2013
thank u sir.
May I know the court fees in U.P. for filing the summary suit, amount for suit is Rs. 30K.
Raj Kumar Makkad
(Expert) 10 April 2013
You should get this information locally. Generally this fee is very nominal on such amount.
