Missed time limit to file case u/s 138 after notice.

Tilak Marg Forum for Legal Questions Forums Criminal Law Missed time limit to file case u/s 138 after notice.

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    • #962

      Hello,

      A Builder issued a cheque of refund on 30th September but it got dishonored on 1st October so we sent him notice on 27th October. He didn’t replied to our notice within 15 days but he informed us that he needs some time to arrange money so we didn’t filed the case within 30 after 15 days period. So time limit is over and I think he is not going to honor his words so is there any option left with me?

      Cheque is valid till 30th December. Can I deposit the cheque once again and if it is dishonored can I again send him new notice and subsequent filing of case afterwards?

      I am in need of your valuable advise as I am worried that I could lost my hard earned money.

      Thank You.

      Sincerely,
      Prakash Rathod

    • #963

      Yes, you can present the cheque again during the period of its validity and if it is dishonoured again, you should be in a position to file the case on that basis.

      Please read our following articles / reply in this regard:

      (1) Can a dishonoured cheque be presented again in bank for payment?

      (2) Cheque dishonour under Section 138 N.I. Act when cheque presented multiple times in bank.

      Secondly, as mentioned in my earlier reply to another question, the court has the power to condone the delay if there are justifiable reasons [see: Limitation period to file cheque bounce case u/S 138 Negotiable Instruments Act].

      Also see this question and reply, which is relevant to your question: Delay in filing of cheque bounce case, can it be filed now?     


      Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers. List of his YouTube Videos.

    • #965

      Sir, first of all thank you very much for replying to my query.

      About the condone of delay, one lawyer informed me that it can take more than 6/7 months for a judge to consider my delay request and accept the case afterwards for a trial. He clearly said its totally up to Hon. Judge whether to accept the case or not for trial. So he advised me not to opt for this option and said to go for civil suit.

      So far I talked to 3 lawyers and all of them informed me that I can’t send the second notice after second dishonor as they are saying it is against the law. I will share your articles with them and hopefully one of them agrees to send a new notice after second dishonor. I will inform you regarding the same.

    • #969

      Dear Ashok Sir,

      I have spoken to 2 more lawyers personally and both of them told me that I can’t send new notice after already giving notice for first dishonor of cheque. They specifically said it is not possible as it is not allowed.
      One of them told me to file a summary suit and file section 420 case separately if I wanted to but both of them categorically denied to send new notice under section 138.

      Sir I request you to kindly share number of a lawyer who you know in Mumbai and can help me. I have read your article on judgement of “MSR Leathers v. S. Palaniappan” but lawyers are not ready to take up my argument to send new notice u/s 138.
      Please help me Sir. Its a humble request.

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