Is an incomplete document a proven evidence?
Kumarsirik
(Querist) 06 October 2015
This query is : Resolved
I am contesting as a GPA for my uncle on a section 138 suit case after his demise. During cross examination the accused produced a receipt duly signed by late uncle acknowledging the receipt of the whole consideration.
The cheques for which the case was filed were dated Aug 2013 while the receipt has a stamp affixed dated Jun 2013. On this date he was abroad evident from passport and visa.
There is no date of transaction mentioned on the document. Then the receipt does not disclose mode of payment. It only states that my uncle received the consideration and there is no mention of any instrument.It appears that in good faith my uncle intended to acknowledge the receipt of the cheques that were later dishonored.
The accused argues that my uncle has collected the money much before depositing cheques. He therefore pleads not guilty.
My query is to know the validity of the evidence he produced. Are we on the losing side?
P. Venu
(Expert) 07 October 2015
After the death of the complainant, the GPA cannot pursue. If permissible, the legal heirs could be brought on record and they can continue with the case.
Kumarsirik
(Querist) 07 October 2015
The accused raised this objection in his counter. The legal heirs were brought on record and I represent them as they reside abroad. The court gave verdict that the case is maintainable.
P. Venu
(Expert) 07 October 2015
The matters that are personally known to the Uncle could only be proved him and no one else, GPA included.
Please note that NI 138 case is a criminal proceeding and requires to be proved beyond reasonable doubt.
Added to this is the fact most of the cases are fake ones instituted by the so called 'blade mafia' who takes blank undated cheques and advance money at exorbitant rates and resort to the legal proceedings even after the hapless victims had cleared the debts abusing the blank cheques in their hands.
Kumarsirik
(Querist) 07 October 2015
Venu Sir
My predicament is as follows.
First of all I am not interested in falsely incriminating anyone.
Why I FEEL this is not a false case?
The accused party in my presence promised to my uncle, who was then ailing from cancer and in a terminal state, that he would clear the debt due to dishonored cheques. There are other witnesses where he confessed that there is an enforceable debt and a default committed.
When my uncle passed away 2 weeks from the date this meeting happened, he managed to delay the proceedings offering for a compromise and we even drafted an MOU to this effect.
All of a sudden, having delayed the case by at least 9 months, he wanted to contest. On Saturday night he expressed his satisfaction on all clauses in the MOU and also during that day he prepared demand drafts for an amount equal to the dishonored cheques. I was hopeful that this is the end of my woes.
On Monday morning he wanted witness, in this case my aunt, to be cross examined. During the cross examination they produced this acknowledgement and claimed that we are cheating. When my aunt and I saw the document we decided to call off the case.
On a hind sight if my uncle was attempting a fraud
1.He has no reason to fight the case in a terminal stage, attending court in a wheel chair and escorted by nursing helpers.
2. For my uncle this amount is peanuts compared to the charity he does, compared to his own wealth. Staking his life for it was irrational though.
3. There is no reason why the other party had to delay the proceedings by almost a year with the pretext of an out of court settlement.
4. There is no reason why other party offered for a settlement and the case be referred to Lok Adalat.
5. There is no need for him to waste time in getting an MOU drafted, reviewed and amended so many times.
6. Moreover, on inspection of the acknowledgement it does not contain
Date of Transaction
Mode of payment
Instrument details
What it contains is a revenue stamp of Rs 10/- with a certain date. As on this date my Uncle was halfway across the globe en-route to the US.
In my uncle's Diary that I discovered he wrote notes that the accused requested him a receipt for his book keeping purpose and other statutory requirement as the cheques are dated to be cleared during my uncle's stay in the US and obtaining a receipt at the time of cheque clearing is impossible. They are very good friends and perhaps my uncle signed them out of trust.
Now with this backdrop can you help me how I can proceed?.
The day I get to know we are at fault I would apologize to the opposite party and withdraw the case. I am fulfilling my responsibilities to a man who was like my god father. Not only I thousands have a similar respect for him.
further, I bear witness for their deliberations when the other party promised that the cheque amount shall be re-payed as soon as my uncle withdraws the case.
Subsequently, as my uncle started to move around wheelchair and was also put on ventilator support twice before the hearing, he did not make the payment as my uncles longevity was doubtful and this fact was known to everyone.
When I took up the cause after my uncle's demise accused promised me repayment and dragged the matter by not preparing a mutually aceptable MOU. He always padded it with clauses that proved detrimental to us in some way or the other.
Finally, when I expressed my dissent he said that signing MOU is delayed only because his advocate was taking him for joy ride by not giving proper directions towards amicable settlement. and therefore, repayment was also delayed. So whimsical was his disposition in this matter. If he has not wronged all this drama was unnecessary.
Now, you would have got a gist, a pattern of the fraud. I strongly believe the other party is tormenting us as he is stronger inferring from following facts.
1. His profession is in dealing with litigation lands
2. He has several cases with various other parties
3. We have no knowledge of the facts of the case
4. We are relatively far inexperienced than him in legal matters
This is the reason I put up this query in this forum. I made it a habit consult members here whenever I had to take up a legal battle. In the recent past, incidentally, it has become one too many times I got embroiled in legal tussles.
In this case, I am not a direct sufferer. Therefore, I have the discretion to walk out if my actions are resulting in unfair means and ends.
Please do not mark it resolved as I am waiting for a comprehensive guidance.
Thank you
Kumarsirik
(Querist) 07 October 2015
changing status to open
