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  • Category: Indian Law

    How to take legal action for giving a fraud cheque


    Have you received a fraud cheque? Wondering how to take legal action on the person? On this Ask Expert page get advice on how to proceed with taking legal action.

    I am doing online business. Some one gave me duplicate cheque for 200000 Rs. I have total proof for it like GST bill, transportation Bill etc.
    What is the process for taking legal action on him?
    I sent sent him 200000 Rs order but at now he has not given me payment.
  • #149309
    If the cheque issuer fails to make a payment, the payee has the right to prosecute the drawer legally.
    The payee may legally sue the drawer for dishonour of cheque only if the amount mentioned in the cheque is towards discharge of a debt or any other liability of the defaulter towards payee.If the cheque was issued as a gift, towards lending a loan or for unlawful purposes, then the drawer cannot be prose
    The legal action can be as per the Negotiable Instruments Act, 1881 This Act has been amended many times since 1881.
    The dishonour of cheque is a criminal offence and is punishable by imprisonment up to two years or with a monetary penalty or with both according to Section 138 of the Act
    Before proceeding legally a chance has to be given to the drawee in the form of notice in writing only. The notice to the drawer is to be issued within 30 days from the date of receiving "Cheque Return Memo" from the bank. The notice should state that the cheque amount has to be paid to the payee within 15 days from the date of receipt of the notice by the drawer. If the cheque issuer fails to make a fresh payment within 30 days of receiving the notice, the payee can file a criminal case under Section 138 of the Negotiable Instruments Act. The complaint should be registered in a magistrate's court within a month of the expiry of the notice period. It is essential to consult an advocate who is well versed and experienced in this area of practice,
    Certain conditions are to be fulfilled in order to use the provisions of Section 138 which are mentioned below.
    1. The cheque should have been drawn by the drawer from his account.
    2. The cheque should have been returned or dishonoured due to insufficient funds in his account.
    The court will issue summons and hear the matter. If found guilty, the defaulter can be punished with the monetary penalty which may be twice the amount of the cheque or imprisonment for a term which may be extended to two years or both. The bank can stop the cheque book facility and close the account for repeat offences of bounced cheques.

    drrao
    always confident

  • #149336
    Usually when you get a cheque, you present it to your bank for collection or clearing. If the cheque is not paid by the drawee bank( the bank whose cheque is given to you), you will get a return memo. Return memo will show the reason for its return. Then immediately( the time limit is 30 days from date of dishonour) you have to send a legal notice to the person stating that his cheque is returned unpaid, and demanding payment of the amount within 15 days . Then also if not paid, you have to file case under section 138 of NI act. within one month of expiry of the 15 days notice period.

    In the present case, what do you mean by duplicate cheque? Is it because it was returned ?. Or is it that you went to the bank and presented it for cash and did not get it? If you present cheque over counter for cash you may not get a return memo generally. So you present it through your bank as clearing or collection.
    However please consult an experienced lawyer in this regard without losing time after return of cheque.


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