Cheating case--sec 65 of evidence act
Advocate Ravinder
(Querist) 02 March 2015
This query is : Resolved
To learned experts/advocates.
My client had given a hand loan of Rs. 1,00,000/- to a women/family friend of my client, who is working as HR management in a private company in Hyderabad. On request to repay the amount, she had given cheque for Rs.1,00,000/-, ultimately it was bounced. Talks were exchanged between my client and her. She asked my client not to file any case and asked to come to her place which is 20 km away from the place of my client for compromise/settlement. My client went to her place with two close friends. She asked my client to first show the original cheque then she will pay the cash. When my client showed the original cheque, she suddenly grabbed the same and fled away with two male members (obviously her boyfriends) on two wheeler, triple riding. It was pre-planed idea. My client and his two accompanies could not able to catch them. Basing on private complaint, Police registered FIR under Sec. 420, 406, 384, 34 of IPC against her and her two friends. Later, charge sheet filed. Now it is coming up for my client Trial. The witnesses are myself, My two friends, IO (SI), and Inspector of Police.
I had filed a case under Sec. 138 NI Act. As all the original documents (including Xerox of chque) were filed in Cheating case court, I could not filed the same before cheque bounce case. Due to the disturbances and continuous 45 days strike (for separate Telangana state) by the Court staff, I could not obtain above documents. There was a delay in filing the above certified copies and the delay condonation petition itself was dismissed and subsequently, the main complaint under sec. 138 NI Act was dismissed. I did not opt for appeal over the aggrieved order, as I had no interest. Instead my client thought of filing money recovery suit.
Later, basing on the cheating case, I filed a civil suit for recovery of amount of Rs.1,00,000/- along with interest and other reliefs against her along with all originals (except cheque). This case is also adjourned for my client evidence. She had denied all the contents of the plaint. Now I have only Xerox copy of the cheque, original of cheque return memos, Legal notice issued under 138 NI Act, Legal notice under money recovery, FIR and charge sheet. I have collected the following citations to strengthen my case under Sec. 65 of Evidence Act.
Nawab Singh Vs Inderjit Kaur--AIR 1999 SC 1668;
Sattamma & others Vs. Bikshapathi Goud--2010(5) ALT118,
Murtaza Moosavi Vs. Hemendra V.Shah-- 2006(3)ALD697,
Kaliya Vs State of Madhya Pradesh—2013(3)ALT(Cri)302,
High court of MP--Narsingh vs Shripat Singh,
H.Siddiqui (dead) by Lrs Vs A.Ramalingam--AIR2001SC1492,
U.Sree Vs. U.Srinivas--AIR2013SC415,
My questions are:
1).What are the chances of winning of Cheating case merely basing on the Xerox copy of the cheque as the original being grabbed by the accused and it is in her possession. To what extent Sec. 65 of Evidence Act help my client.
2).Likewise, what are the chances of winning the money recovery case based on the Xerox copy of the cheque. To what extent Sec. 65 of Evidence Act help my client case.
3)Will the dismissal of 138 NI case effect the above two cases i.e. Cheating case and money recovery suit. I think it is independent case and it has nothing to do with the above two cases. To replace the lacuna of 138 case, my client filed money recovery suit.
Your opinions solicited. With regards
Ravinder, Advocate.
P. Venu
(Expert) 03 March 2015
You have a fair chance of winning the case based on copies of the documents. The decision in the NI case may not make much of a difference.
Rajendra K Goyal
(Expert) 04 March 2015
Call the collecting and drawee bank for evidence.If the banker presented the cheque electronically ask for the certified copy of the print from Bank.
Advocate Ravinder
(Querist) 04 March 2015
@ Rajendra K Goyal
The cheque was presented manually. I forgot to say that I have already in touch with the Drawee Bank Manager, he is ready to come to the court and give evidence both in criminal case and money recovery case. The Manager is going to say before the courts that he verified that the cheque was original one and the signature of the accused tallied with the signature in their records. After proper verification only Cheque return memo will be issued. Once, the cheuqe return memo is issued, the presumption is that the client had presented the original cheque and it has passed through their Bank procedure and ultimately handed over to the client. Any way thanks to Goyal and Venu for your comments.
T. Kalaiselvan, Advocate
(Expert) 06 March 2015
From the contents it appears there are fair chances for winning the case through civil law, put your efforts and succeed.
Advocate Ravinder
(Querist) 06 March 2015
Are the two cases are interlinked or seperate one? i.e. the result of the one case will influence the other case or not?
DEFENSE ADVOCATE.-firmaction@g
(Expert) 06 March 2015
Well it is not easy to win the criminal case since you have to produce evidence beyond any reasonable doubt and so your witnesses can not stand the cross.
The basic contradiction will be that your witness can not recollect the exact technical details of the cheque and any defense advocate can confuse them.
2) Regarding your civil case first it is necessary to know on what grounds the 138 case was dismissed. You should have insisted for secondary evidence there as you are trying to do now. You have not done there so it weakens your stand .
3) Even summery case mere denial in not enough by the defendant , there has to be specific reasoning for defense otherwise the judgment and decree has to be there.
Study the case properly and you can go in revision here and now in civil case with the prayer that the opponent has no defense.
T. Kalaiselvan, Advocate
(Expert) 06 March 2015
Since the 138 NI Act case was dismissed for not presenting it within the time frame and also the delay condone petition was already dismissed prior to that, moreover you never preferred an appeal of revision to that, the remedy in that case now stands vitiated. However that can be an ingredient for the civil money recovery suit besides other pleadings in the suit. In my opinion, the civil case will succeed if prosecuted properly on the basis of strong evidences in your possession. All the best.
Advocate Ravinder
(Querist) 07 March 2015
Is there a mandatory rule that I should file case only under 138 NI Act. I have to attend each and every hearing in the above case along with the accused. Whereas in the civil case I should attend only at the time of my evidence and the rest my colleague Advocate who is on record will look after. Only for my convenience sake I have not shown interest in filing appeal against the dismissed 138 case. And I opted for civil case. It is my wish and I think there is no compulsion.
Please clarify on this point. What I have to pray before the Honble Court. Is the above clarification is enough or I have to take some other stand.
DEFENSE ADVOCATE.-firmaction@g
(Expert) 10 March 2015
unless you get permission to give secondary evidence how you can move further.
Go through the case laws in detail particularly
H.Siddiqui (dead) by Lrs Vs A.Ramalingam--AIR2001SC1492, and case laws quoted in it
Advocate Ravinder
(Querist) 10 March 2015
@ Advocate Defence.
yes, I will file a petition to take secondary evidence attaching the judgement you mentioned. As a part of it I have collected few citations. You can see H.Siddiqui (dead) citation from my collection, in my query.
