How to draft a legal opinion

Legal Opinion Writing- How to draft a legal opinion

12.12.2012

Mr. Mirakkel

Manager, Mokkel Garments Factory Ltd, Gazipur, Dhaka

Subject: Legal opinion as to recovery of money.

Dear Sir,

I am requested to give you legal opinion on the following facts and circumstances.

Here is the opinion you requested. The facts and circumstances are as follows:

You supplied some garments to Mr. Beakkel in consideration of money 5,00,000 tk. Mr. Beakkel gave you a cheque valued 5,00,000 tk. When you submitted it to bank, it was dishonored by the bank. Now you are seeking legal opinion to realize the sum from Mr. Beakkel.

In order to prove the fact you sent me some necessary documents which are as follows:

1.     Dishonored check;

2.     Commercial invoice of that transaction;

3.     Bill of lading &

4.     Detail of your garments delivered to Mr. Beakkel.

From the above, the evident issues are as follows:

1.     Whether you are entitled to realize that sum or not. If you are entitled to that sum, then how?

2.     If he dishonored the cheque willfully, what should be his punishment?

3.     What are the remedies available to you & which will be your appropriate action against Mr. Beakkel?

You have both civil and criminal actions against the drawer to realize the money. As:

1.     You can send a notice under section 138 of the Negotiable Instrument Act, 1881 and request him to pay the amount dishonored by him. You may give him 1 month time to pay the sum in default of which you can proceed to criminal action against him. (Its costs & liability shall vest to the drawee). Or;

2.     You can take another criminal action against the drawee under section 406 or section 420 of the Penal Code, 1860 on the ground of criminal breach of trust. Though it’s a faster process than the civil one, there is little scope to realize the sum. Rather you can punish him severely under this section. Or;

3.     You can proceed to civil action under the law of civil procedure filing a money suit against him. Under this action you can realize the dishonored money only but not punish him. Mr. Mirakkel, remind here that, you have to pay ad-valorem court fees to the court under the Court-fees Act, 1870.

From the perusal of above facts and circumstances, I think it is better to take criminal action under section 138 of the Negotiable Instrument Act, 1881. Because it provides you more opportunity to realize the sum dishonored. Though it is not clear from your documents that, whether you submitted the cheque more than one or not, you can revive or extend your period of limitation by submitting the cheque to bank within 6 months as much as you want as there is lack of time. As civil suit is time consuming, costly & lengthy process, it is more convenient to adopt an action under Negotiable Instrument Act, 1881 wherein you will be able to realize money and punish Mr. Beakkel with a prompt, easy & short procedure. So, I opine you for your benefit to proceed on the first option mentioned above.

I thank you for asking for my opinion in this regard and if you need any further advice, I shall be available in my chamber and be glad to assist.

Yours sincerely,

Md. Mostansir Rahman

Advocate, Supreme Court of Bangladesh