Sirs, Mr. Ramesh has taken some contracts from Mr Suresh Builder and gave one Cheque of 1000000 to him . Mr. Ramesh introduced Mr. XYZ to Mr Suresh who agreed to buy Flat from Mr Suresh Builder Mr XYZ purchased Flat from Mr Suresh Builder for say Rs. 800000 and gave one Cheque to Mr Suresh Builder which was returned unpaid Thereafter Mr XYZ made new fresh Agreement to Sale with the said Mr Suresh Builder and paid Rs.8,00,000/- by way of Cash, Demand Draft and RTGS But for some disputes between Mr Ramesh and Mr. Suresh Builders, the said Mr Suresh Builder refused to give possession of Flat to Mr XYZ being friend of Mr Ramesh. So, Mr. XYZ filed Suit for injunction and declaration against Mr Suresh Builder and made Mr. Ramesh as witness therein and Mr. XYZ successfully obtained "Status Quo Order" against Mr Suresh Builder for the suit Flat The Suit is Pending Then Mr Suresh Builder deposited Cheque of Mr. Ramesh which was returned unpaid and Hence Mr Suresh Builder sent notice under section 138 of N.I. Act to Mr. Ramesh and also to Mr. XYZ which read as under :- -------------------------------------------------------------------------------------------------- Contents of Notice sent by Mr Suresh Builder through his Advocate :- Mr. Ramesh Accused No.1 Mr. XYZ Accused No.2 You Accused No. 1 returned cheque of 1000000 and You Accused No.2 purchased Flat and gave Cheque of 800000 but returned the same cheque and hence both are liable to be prosecuted u/s. 138 of NI Act Therefore you Accused No.1 is hereby called upon to pay Rs.1000000 in 15 days other wise ………… But Nothing was called upon from the Accused No.2 (Mr. XYZ) ------------------------------------------------------------------------------------------------------- Facts :- Mr. XYZ purchased Flat and gave Cheque of Rs.800000 and returned the said Cheque It is fact But then Agreement to Sale was also also cancelled Thereafter Mr Suresh Builder made fresh Agreement to Sale with Mr. XYZ and Mr. XYZ paid Rs.8,00,000/- by way of Cash and DD but even then Mr Suresh Builder refused to perform his part which compelled Mr. XYZ to file aforesaid Suit against him and Mr. Ramesh both for injunction and declaration and Mr XYZ got Stataus quo Order. To take revenge and to make frighten to Mr. XYZ Mr Suresh Builder issued notice as above and unnecessarily tried to implicate Mr. XYZ as party therein Query 1. Can Mr Suresh Builder directly use word Accused No.2 for Mr. XYZ 2. Mr Suresh Builder did not call upon Mr. XYZ to pay anything in the Notice then why his name was unnecessary involved therein 3. What types of Civil & Criminal cases can be filed by Mr. XYZ against Mr Suresh Builder 4. What effect this Notice will have in the pending Suit filed by Mr. XYZ Please guide HARIOM
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1)cheque of Rs 8 lakhs was returned hence XYZ is made as accused
2)you should reply to legal notice that Rs 8 lakhs was subsequently paid to builder and fresh agreement for sale was entered into
3) it would not have effect on pending civil suit
4) suit for specific performance should be filed by XYZ on the builder
1. XYZ paid builder the purchase price. So there is no existing debt or liability. So 138 will not apply to XYZ.
2. as you said, to frighten you
3. dont waste time on it. Focus on the suit you have filed against builder for possession. If you still wish to take legal action, then you can file a criminal complaint against builder for criminal intimidation. If you have police contacts then builder may be called in police station.
4. nothing. In fact you can use it your advantage. File an application in the suit to bring on record this notice to show the court how this builder has been harassing you and obtain directions from court to the builder.
If a criminal case is filed in court u/s 138 of Negotiable Instruments Act then the term accused can be used to address the said person.
The person who draws the cheque is only made party to the notice.
Case of defamation. Misusing legal machinery for personal scores. Filing false complaint etc.
It will not have any effect as civil case is different from criminal case
1. In notice the word noticees should be used he cannot make them accuse directly. Accused shall be in case of a complaint.
2. To state the facts and to create pressure.
3. See for notice in which the builder technically has expressed the truth no action can be taken against him though based on notice builder won't be able to take steps against XYZ.
4. Since there is no demand against the XYZ in notice it wont have any effect as such the XYZ can give reply to notice and deny all the things against him in notice.
This legal notice is not complete but of course as you gave a cheque of rupees 10 lacs to the Suresh builder it is your responsibility to get your cheque cleared from the bank and increase it is returned unpaid then you are liable to pay the amount to Suresh builder.
However the agreement to sale from Suresh builder with x y z which which is complete and Suresh builder send a legal notice to xyz have no validity and cannot be stand in the court of law Ramesh being the witness in the case of XYZ versus Suresh builder is only acting as a witness and the payment of rupees 10 lacs to Suresh builder has nothing to do with Ramesh and xyz this notice is contestable and very easy to be maintained.
1. It is not uinderstood that why the buuilder has dragged this xyz in his legal notice, however since the xyz is having sufficient evidence for having paid the builder the sale consideration amount , he need not worry even if he impleaded as party to the cheque bounce case.
2. May be to put pressure on Mr. ramesh through xyz.
3. To wait and watch because as of now there is no case made against xyz by the builder.
4. XYZ has to issue a reply notice denying the allegations leveled against him.
1.No.
2.To arrange the sequence.
3.File defamation suit amounting to Rs.50,00,000 /- for hurting the reputation of a law abiding citizen.
4. Reply is must before filing the suit to the notice.
Sirs Actually Now Mr Suresh Builder filed case u/s. 138 N I Act against Mr XYZ Whereas Cheques were returned with reason out of date / stale cheque And Suresh Builder has cancelled that Sale- Agreement also for which Cheque was given and returned Now problem is that Suresh Builder filed case at Punjab and summons were issued from Punjab and Mr XYZ is at Maharashtra Summon were served to XYZ by post only one copy of Summon with 4 lines asking Mr XYZ to remain present on 00 date is written and COPY of Complaint is not attached therewith No attachment of copy of complaint Mr XYZ desires to file application at Session Court / High Court for quashing the Order So he does not wish to remain present before JMFC on scheduled date because he is afraid of Suresh Builder who may use some tacts/power/etc. So being absent before JMFC on 1st date, can Mr XYZ take ground that only summon came and No attachment therewith What may happen if he does not remain present over there on 1st date please guide HARIOM
See in summons the copy of complaint is not there you will receive same after you remain present before the court so this cannot be ground for quashing so you remain present before the court obtain a copy of complaint and then file for quashing of the complaint.
Tell his lawyer to file exemption on your behalf in JMFC. You can then go for quashing in HC. The ground of non receipt of Complaint copy is not strong
For quashing you need to enclose copy of complaint filed against you
2) issue notice to complainant to furnish copy of complaint filed in court
3) if it is criminal case and you don’t appear inspite of device of notice bailable warrant can be issued against you
A cheque has a validity period of 3 months from date of issue
If the payee deposits the cheque for encashment beyond the validity period due to which the cheque is returned by his banker unpaid, then how can this be an offence u/s 138
If cheque is returned, then might as well issue a fresh cheque or transfer money by RTGS
But as builder has cancelled the agreement, it would be better if amount is deposited with court in the suit filed by you in civil court
If payment is made then there is no existing debt or liability and offence u/s 138 is not attracted
So write a registered letter to builder or his advocate that copy of complaint is not attached to summons and that even otherwise the complaint has become redundant in view of you depositing or willing to deposit the amount under the returned cheques with the court in the pending suit filed by you
If XYZ is not appearing before the concerned court after receiving the summons,then the court may issue a non bailable warrant against him for non-appearance in the criminal case, if it is a civil case then the court may set him exparte and a decision will be passed against him in his absence.
The copies of the petition and other papers can be had from court directly on the date of hearing provided the accused appears before the court on that day.