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PART 1 - THINGS TO KNOW BEFORE FILING DEFAMATION COMPLAINT

Being aggrieved of the ruthless comments made upon Birbal by Akbar (His Majesty) in front of the entire Darbar, Birbal has decided to file a Defamation Complaint before the Court of Law. (If you feel clueless, read the first paragraph of - PREVIEW OF DEFAMATION COMPLAINTS PROCEDURE ) Also, Birbal is clueless about the legal process, so he approached Me ( Note: this anecdote is fictional, if you have not realized till now). I had to tell him the following information to make him aware about “Defamation Case Procedures in Indian Courts” in exchange of some legal-fee of course: SECTION 499: Defamation is a Criminal offence under Section 499 of Indian Penal Code . This legal provision contains the legal definition of ‘Defamation’, which has to be followed by Courts and the judicial fraternity in order to convict or acquit an Accused person.   Short-Gyan: Did you know that making defamatory comments against a dead individual is also a criminal defamation offence!   PUNISHMENT: Upon
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STEP-BY-STEP PROCEDURE FOR FILING CHEQUE BOUNCE COMPLAINT AGAINST THE ACCUSED

CHEQUE BOUNCE PROCEDURE / SHORTICLE - 2

The offence of Cheque Bounce is quite common and therefore, the cases of these kind of offences have reached to such huge quantities that the Magistrate Courts have started clogging because of the ever-increasing cases pertaining to cheque bouncing. The routine nature of this offence, in a way or another, cautions that this can happen with you too, so better be prepared!

Let us first consider a practical situation:

AKBAR, a shop owner in a flee-market in Mumbai, sells clothes of copied brands (like Adibas, Nikee etc.) to public, for which he purchases such clothes in bulk from his distributor, BIRBAL, since last 2 years.

Akbar had taken Rs. 50,000/- worth Adibas clothes on credit from BIRBAL during December 2020, and due to COVID-19 he was not able to pay any money to BIRBAL.

However, BIRBAL remembers that on the first day of business in the year 2019, AKBAR had given 01 signed undated Security Cheque of Rs. 50,000/- to BIRBAL in case of any default. Therefore, BIRBAL puts date 01.03.2021 on that Security Cheque, and deposits that Cheque in his bank on the same date. The Cheque gets dishonored for “Insufficient Funds”!

Now let us get to know as to what steps can be taken in the above case of cheque bounce between Akbar (i.e. Accused) and Birbal (i.e. Complainant).

 


 

WHAT STEPS SHOULD BIRBAL (i.e. Complainant) TAKE?

In order to remember the Timeline till filing the cheque bounce complaint before any Magistrate, every person may rather try to remember this phrase “30-15-30”, which stands for:

30 days       -        Time for Demand Notice

15 days       -        Time for making Payment

30 days       -        Time for filing Complaint

 

A. 30 DAYS (Time for DEMAND NOTICE): A demand Notice is a Legal Notice, which may/may not be sent through an Advocate. The Demand Notice must be sent to the Accused within 30 days of the date of Return Memo (refer, section 138 of Negotiable Instruments Act, 1881). It must be in a Formal Letter Format and shall consist of the following points mandatorily:

a.    Address and Personal Details:

                                         i.    Address and Full Name of the Accused person must be mentioned;

                                ii.       Address and Name of the Partnership Firm, Company etc. must also be mentioned, in case the cheque was drawn by such Firm/Company (if any);

b.   Date: Date must be mentioned separately in the Demand Notice;

c. Subject: Demand Notice under section 138 of Negotiable Instruments Act, 1881 for demanding the cheque amount of Rupees so-and-so towards the legally enforceable debt;

d.   Body of Letter: The body of the Demand Notice shall mention a chronological set of facts related to the transaction as follows:

                                         i.    The business-relation between the Complainant and Accused must be mentioned;

                                       ii.    The fact stating as to how the debt arose against the Accused;

                                      iii.    The date on which the debt became due against the Accused;

                             iv.    The fact whether the Cheque was towards security amount (if any) or towards any ongoing transaction;

                                       v.    The circumstance in which the Cheque was issued by the Accused shall be mentioned;

                                      vi.    That the Cheque was issued towards a legally enforceable debt;

                                     vii.    The date on which the cheque was deposited in the bank;

                                   viii.    The date on which the cheque got dishonored from the bank;

                              ix.  The reason for which the cheque got dishonoured (i.e. the reason mentioned on the Return Memo, for eg. “Funds Insufficient” etc.);

                                  x.  At the end, a paragraph must be mentioned requesting the Accused to pay the amount (as mentioned on the cheque) within 15 days from the date of receiving the Demand Notice, failing which, the complainant will be constrained to take legal action under Section 138 of the Negotiable Instruments Act, 1881;

                                        xi.    Signature of the Complainant;

                                       xii.    Signature of Complainant’s Advocate (if any).

 

e.    Annexures MAY/MAY NOT be annexed with the Demand Notice: It is not mandatory to attach the copies of the Dishonored Cheque and Return Memo with the Demand Notice. A Demand Notice or any other Legal Notice is not a document to be filed in the Court, rather it is only a letter which shall be treated as a mere communication with the other party.

 

f.    Sending the Demand Notice via Post: The Demand Notice must be sent via Speed Post/RPAD, so that the proof of service and the date of such service are readily available with the Complainant. (Note: Keep this receipt safely with you, as this receipt is required to be filed at the evidence stage of the proceedings).

 

B.   15 DAYS (Time for making PAYMENT): Once the Demand Notice is received by the Accused person, he will have 15 days’ time to return the cheque amount to the Complainant. This 15 day period is the last opportunity given to the Accused to settle the offence amicably by making the payment of the entire cheque amount.

 

C.   30 DAYS (Time for FILING COMPLAINT): As soon as the above 15 days period ends, the cause of action starts for the Complainant to take action against the Accused person. The line of action for the Complainant is nothing else but to prepare a Cheque Bounce Complaint and file it before the relevant Magistrate having jurisdiction to admit/hear your case. Therefore, the Complainant now has to file the complaint before the Magistrate within the next 30 days period.

 

IN CASE THE COMPLAINANT FAILS TO FOLLOW THE ABOVE TIMELINE, the Cheque-Bounce Complaint may be rejected by the Magistrate. Therefore, please note that TIME IS OF ESSENCE!

 

QUESTIONS WHICH MAY ARISE IN READER’S MIND?

·         But, what is to be written in the Cheque-Bounce Complaint?

·         How to know the exact Court No. and Magistrate for filing the Complaint?

·         What are the practical insights for filing the Cheque Bounce Complaint directly in the Court?

 

 

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NEXT BLOG ON:

PRACTICAL INSIGHTS AND STAGES IN A CHEQUE BOUNCE CASE?

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ABOUT THE AUTHOR

Advocate Shreyas Jain, being a legal practitioner based in Mumbai, specializes in Criminal Law and primarily deal with criminal matters placed before Metropolitan Magistrates and Session Courts at Mumbai & Thane. Mr. Jain is a first generation lawyer and believes in working and excelling at the ground level before going big. You may reach him at +91-7054407778 or through his e-mail jainshreyas1995@gmail.com


NOTE: VIEWS MENTIONED IN THE ARTICLE ABOVE ARE PERSONAL AND HAS NOTHING TO DO WITH ANY PERSON, PLACE, ORGANISATION OR ANY OTHER FALLING UNDER THE DEFINITION OF ‘PERSON’ UNDER INDIAN PENAL CODE, 1860.

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Location: Mumbai, Maharashtra, India

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