Guidance under Sec 138 of NI Act.

Hi,

You are absolutely right madam.  If a cheque was bounce for lack of sufficient amount the bearer is at liberty to file civil and criminal cases against the issuer of the cheque.   If you have mentioned in the legal notice "demanding money from the accused failing which, he shall be compelled to initiate legal proceedings under section 138 of Negotiable Instrument Act"  you can only file petition u/s.138 N.I.Act. 

If you would have mentioned the words "If you fail to pay the amount within  ----days my client may be constrained to take civil and criminal action against you" OR "If you fail to pay the amount within -----days my client may be constrained to file civil and criminal suits against you and you are responsible for the consequences"  then only you can file both civil and criminal cases against him.

But here in your case you did not mention the word CIVIL, so you need to send him a  notice again.

Hi,

generally for any recovery of amounts there must be some demand as in your case the very purpose of the notice under section 138 of N.I.Act is to give the party notice as to thedishonour and providing him an opportunity to rectify his mistake and pay the amount, on his failure we get an cause of action to file the complaint, and it is also can be treated as demand notice also

For recovery  of amounts by way of a civil suit its not
mandatory to issue a registered lawyers notice. But for initiation of
criminal action under NI Act issuance of notice is mandatory under
Section 138. As you have already issued notice as contemplated under
Section 138 of NI Act. YOu have to wait for 15 days from the date of
service of notice upon the person so as to initiate NI Act proceedings
and for civil action there is no bar. Regards Srinivas BSST

Dear all, Srinivas is correct. In NI Act notice is statutory. But in civil law it is not so. So for initiating a civil action no notice as contemplated in NI Act is legally mandatory.

So absence of notce is not a bar for Sapna.

Issuing legal notice for recovery of amount on dishonour of cheque is subject to rules framed under civil rules of practice by the concerned High Courts of different States.

 Dear Sapna,

Also, you need to ensure that your demand notice u/s. 138 of NI Act demands the actual amt which was bounced...and not any interest amt or such other amount (i.e., amt equivalent to the amt on the cheque that bounced). 

Rgds,

Surya

thnx for ur guidance

If u have wirtten the word civil suit may possible but good advise is that u have to file summeri suit under order 37 u can get result in just 90 days it is mandatory for the court to dispose it without taking evidence

but u have to file it in proper form as required under the law and put the origenal document with the suit

dear sapaana ,

 there  is no requirement of second notice.

but to create t he ground of interest on the amount ,i think you should  mentioned the ratio of interest in the notice and  raise the demand that you are going to claim the interest  over the dues mentioned in t he coloum of cheque.

because there is no mention as to  interest ,,in the 138 of NI act and you will not get interest  by  way  of complaint  under section 138 of the NI act.

regards NTP

dear sapaana ,

 there  is no requirement of second notice.

but to create t he ground of interest on the amount ,i think you should  mentioned the ratio of interest in the notice and  raise the demand that you are going to claim the interest  over the dues mentioned in t he coloum of cheque.

because there is no mention as to  interest ,,in the 138 of NI act and you will not get interest  by  way  of complaint  under section 138 of the NI act.

regards NTP

dear sapaana ,

 there  is no requirement of second notice.

but to create t he ground of interest on the amount ,i think you should  mentioned the ratio of interest in the notice and  raise the demand that you are going to claim the interest  over the dues mentioned in t he coloum of cheque.

because there is no mention as to  interest ,,in the 138 of NI act and you will not get interest  by  way  of complaint  under section 138 of the NI act.

regards NTP

dear sapaana ,

 there  is no requirement of second notice.

but to create t he ground of interest on the amount ,i think you should  mentioned the ratio of interest in the notice and  raise the demand that you are going to claim the interest  over the dues mentioned in t he coloum of cheque.

because there is no mention as to  interest ,,in the 138 of NI act and you will not get interest  by  way  of complaint  under section 138 of the NI act.

regards NTP

Dear Sirs,

My contact email is jays_am@yahoo.com   (jays_am) becuase in the login it is jay_am

I had bought a property about 02 years back and me and the bank made a payment to the Builder

according to their completion certificate. There was a home loan for about 1cr. and we paid about 38lacs.

according to our legal papers, builder had requested us to pay the cheques and demanded the cash for

the same as mature understanding and we did it. so we gave him the cheques but he didn't return us the cheques saying once he get the payments from the bank he would return it. and he gave the payment receipt mantioning the cheque no.s to keep his account clear becuase of the income tax department and issued the certificate to the bank that payment is done from the party and as the property is ready, so bank should release the payment. so bank released the payment on their completion certificate. so we aksed the builder to retrun the security cheques as he was also been paid up by the bank, but he said that he has misplaced it and once he find the cheques he would return it. but he didn't, so later on we cancelled the cheques informing the bank over the phone and also informed the builder for the same over the phone and it was done.

Later on we got the Sale deed copy and other papers from the builder and originals were been given to the bank as per the builders statment. then after good time we went to the site where we shown the property was different and the property we bought was not constructed. so we spoken to the builder and he said he would do it soon but for good time he didn't do anything so we send him a legal notice. instead of replying the legal notice he misused the cheques that he said misplaced and forwarded us the notice for 138, so we replied for that 138 and told him that you should not misuse the cheque that you supposed to return but not returned saying misplaced ? so now do not misuse any of them and return it to us as after the entire payment you have made the sale deed and all.

But he didn't reply, so we file the 420 against him representing the false certificate provided by the builder to have the fund from the bank and taken the money from us and from our bank that we had to repay. But he didn't bother it and the 420 is going on since 18 to 20 months with no result. so we approached the Hon. National commission as it was a matter over 01cr.

After all the evidence and strict legal Scrutiny by the President and other members at National Commission, they issued the legal notice to builder for ex-parte decision.

So now builder has filed another suit for 62lacs in civil instead of answering National.

Is it a world of criminals ? as we are not aware that how the city civil has entertained them avoiding the notice from the National ?

Really a word confirms here that  " Ulta chor  police ko  dante "  If there is a real Law Professional hero, please advise Honestly ! as after big monetary loss,

01, we do not have the property  (Just Property Papers)

builder has goons at the property, once we tried to go there but been threghten by goons warning not to come again.

02, we are suffering with false allegations

03, we filed the 420 first and also the Hon. National Commission issued the notice after having legal papers and other scrutiny for the case but builder does not bother for any law and feeling whatever he is doing that is law.

04, all money gone and also the Bank is after us even as they released the big money directly to the builder as we informed the bank that if the construction was not done why you released the payment becuase neither we do have money that we made with many years hard work nor we do have the proeprty. becuase it is banker responsibility to verify the property before issuing the cheque to the builder. but we been told that builder is having good realtions with the bank officers. But Where we are? No money, No Property, lifetime saving is gone, bank liability for the same and false allegations

05, mental harrassments and suicide thoughts into mind

really world is full of cheaters and difficult to survive for genuine people. Does Builder construct the buildings and destruct the Humans and Law ?

Please advise as we do not have much patience to live in the world of cheaters. jays_am@yahoo.com (jays_am)