Section 138 of n.i.act
Querist :
Anonymous
(Querist) 06 September 2011
This query is : Resolved
Dear all,
We are holding a chequed for Rs. 4,92,000/- dated 27.02.11 against a purchase order and we have duly supplied the material to the party but when we present the cheque the same was returned unpaid due to insufficient fund but to keep good relationship with the customer we did not issue any demand notice, just merely informed them such dishonour and asked them to clear their due and they also assure us that they will pay the money shortly. on 20.08.2011 i.e. 7 days before the expiry of cheque It came to my knowledge that my company has received a part payment for Rs. 2,50,000/- and they have duly obtained money receipt against such payment mentioning the bill no. after that they are not receiving our calls and having no other alternative I deposited the cheque to my bank and got it bounced as per memo dated 25.08.2011. Now I am confused that what notice should I issue to them, I desire to file 138 case as it seems to be more effective than money suit. So please suggest me can I file case under section 138 of N.I.Act or money suit or winding up petiotion , what will be the better option in this circumstances.Please advice.
shrikant
(Expert) 06 September 2011
cheque Bounce proceeding under section 138 of NI Act
R.Ramachandran
(Expert) 06 September 2011
You have all the three remedies available to you.
Querist :
Anonymous
(Querist) 06 September 2011
What amount should I claim in demand notice after deducting the amount which have already been paid or the amount mentioned in the cheque
Querist :
Anonymous
(Querist) 06 September 2011
What amount should I claim in demand notice after deducting the amount which have already been paid or the amount mentioned in the cheque in case I want to move under section 138 of N.I. Act
prabhakar singh
(Expert) 06 September 2011
"I desire to file 138 case as it seems to be more effective than money suit. " TRUE IT IS AS YOU VIEW.
BUT THIS TRAIN BEING FASTER ALLOWS ONLY A VERY VERY TECHNICAL TRAVELER.
"a chequed for4,92,000/- dated 27.02.11?? it bounced as per memo dated 25.08.2011??a part payment for2,50,000/- and they have duly obtained money receipt against such payment mentioning the bill no. ???"
You do have time to issue notice demanding him to pay the amount of cheque with in 15 days failing which a complaint would be lodged within 30 days from that as the cheque was presented with in its validity period of 6 months.
But the crucial fact in your case is that whether such a liability existed on the drawer on the date the cheque was presented so that terms laid in section to read as
"for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, "
Thus there was no liability in any condition for the amount the cheque was issued rather it was reduced to Rs242000/=
due to part payment already made by him against the receipt issued by your company.
Hence not only during trail(but even when statement of s200Cr.p.c. would be recorded)to prove that any such liability existed on him on the date cheque was presented would be impossible.
So this i consider as a lacuna in the case if desired to be made u/s138 N.I.Act.
But despite all this i advise you to serve him a notice but calling upon him to pay only the real balance of 242000/= due on him explaining every thing that has moved in past.
And when he does not pay on the notice you file not only a complaint but also a civil summary or regular suit as circumstances may demand for which limitation is 3 years from the date 25/08/2011.
Taking risk by only banking on a complaint u/s 138 may turn the dues bad and unrecoverable if suit of recovery not filled with in time advised.
So do as you desire if my opinion does not suit you.
Advocate Bhartesh goyal
(Expert) 06 September 2011
I Partly disagree with experts.Complaint u/s 138 of N.I act is not maintainable as you have intimated/ issued notice to the drawer regarding the dishonour of cheque and also made demand of the cheque amount just soon after the cheque bounce But you did not file complaint u/s 138 of N.I Act and thereafter you again lodged the cheque for its realisation before the expiry of validity period of the cheque and wish to file complaint against drawer u/s 138 of N.I Act.For filling the complaint you have to issue again a notice to a drawer, you can not made complaint on subsequent/second notice as no cause of action arise on second notice.A cheque can be presented any number of times during its validity but cause of action arises to prosecute the drawer of the cheque once.So on the basis of subsequent notice the complaint is not maintanable.Please go through the judjement of Apex Court 2005(2) criminal court cases 742(s.c)Prem chand Vijay kumar v/s Yashpal Singh.File a recovery suit to recover the cheque amount
Querist :
Anonymous
(Querist) 07 September 2011
Dear Mr. Bhartesh Goyal,
No notice hasbeen issued, it was verbally communicated to the o.p. and they asked us not to issue notice as they intend to pay the money and afterthat they make part payment of Rs. 2,50,000/- and got money receipt from other branch of our company without informing us but the transaction made through our branch. Due to the communication gap between our branch they took part payment and deposited the cheque to our bank a/c. As it was done without information we deposited the main Rs. 492000/- cheque from our branch and got it bounced within time . In this circumstances what should I do, should I issue notice under section 138b for balance amount or it is not maintanble as they have made part payment against the claim. Please advise
DEFENSE ADVOCATE.-firmaction@g
(Expert) 07 September 2011
Yes no second notice for cheque bounce admissible. Money claim as civil suit is proper remedy.
Arif Iqbal
(Expert) 08 September 2011
Proceeding under section 138 NI Act will not serve your purpose. Filing of a money suit for recovery of the balance amount is the best remedy. The cheque will be relevant document in the suit.
