johny (owner) 25 May 2012

Help in 138 ni act

please help and give ur expert advise in 138 ni act

my friend has taken loan from a person in 2006 of 2 laks rupees.he repayed it but later person ask my friend to pay interest of 10 percent per month which he denies.he gave him blank cheque that time.

later on he stopped calling n things get settled.my friend didnt take cheque that time from that guy.

now after such a long time my friend get a notice from that guy under 138 ni act .he is demanding 28 lakh rupees stating that he has given that amount IN cash this year as they were friends and having good relation .and when he presented check in bank the check was returned stating that ACCOUNT WAS CLOSED.
should he reply to notice in below format?
Dear
AS far as i known i never had taken loan from xyz.this is conspiracy and i am afraid that i will take action against it.i am going to file case under section 120 and 420 of IPc .your client has misused my cheque which was never given to him and as account was closed.
thanks
xyz

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4 Replies

V R SHROFF (Sr. ADVOCATE Bombay High Court Mob: 9892432152) 25 May 2012

Important Law points are

[1} Cheque date ?? as shown on notice

[2] date the a/c was closed

[3] deny the liability

not advisable to reply notice.Let him spend heavily on court fees, then defend. If at all you wish to reply notice, you say, there was no transaction, nor delivered any cheque in last 3 years. nothing more.

johny (owner) 25 May 2012

thanks for ur advise sir

cheque date is 18/4/2012

bank account was closed due to no transactions since2007 in 2010 .(not sure about date ,as it has to be confirmed by bank)

and above all guy is not living in that city from last 2 years and didnt went in the city where this guy is claiming he has given him amount.

so it is best not to answer the legal notice and fight the case in court??

R Trivedi (advocate.dma@gmail.com) 25 May 2012

Please do respond about the legal notice, stating the fact that he has misused the cheque, Also please immediately file a case of 406/420 and clearly stating about the misuse of cheque. Do write in the legal notice reply that you intend to file the case under 406/420.

In case of Accounts Closed, the court should not take cognizance, because it does not fall under S.138 ideally, so present yourself (in case matter reaches to summon stage) on the first date, present to the court all the details before you are charged. In all likelyhood, you may be spared the agony of protracted litigation.

What was the shape of cheque when you issued ? What does he right about receipt of cheque ?

johny (owner) 25 May 2012

thanks

what if reply of notice get delayed ,as it has to be sent till today (15 days).?

cheque was given blank in 2006 and he presented it in 2012 .so i guess he has fill the cheque this year only.so if we match sigh and other writing it will definitely show that sign was 6 year back.he didnt mention abt reciept .

no reciept was given