Been cheated
Harsha
(Querist) 09 August 2014
This query is : Resolved
Hello Sir,
Few years back we took a loan of Rs.2,00,000 from a local person at a interest rate of 5% and we paid interest for him for a year through cash (no receipt given) and last year may we had cleared the actual amount of Rs.2,00,000 through check and we are due to pay around 25,000 of interest and we requested him and said that we cant pay the interest. He ignored us and did not give our papers and cheques (everytime we ask, he says to come later) and after few months he asked us to pay an amount of 40000 as due. We said that we cant give any money as my father lost his job. Today (9 august) he sended a notice saying that we are due to pay Rs.4,00,000. The notice says that we borrowed the amount in january of this year and promised to pay in 4 months and there was a check bounce also mentioned in it.
He included sections 138 R/W 142 of negotiable instrument act,1881.
But we gave the actual amount to him last year through bank. Moreover the promisery note and cheques were around 3 years old.
Is there any way to prove we are innocent?
Please help us with your valuable suggestions.
Kiran Kumar
(Expert) 09 August 2014
well contents of his notice have not been mentioned still I would suggest that you can defend yourself on technical grounds like validity of cheque.
You mentioned it was around 3 years old cheque, find out its validity first (your local lawyer will help you out on this aspect)
initial burden will be upon him to prove that there exists a legally enforceable debt against you.
do give a fitting reply to his notice through your lawyer.
Harsha
(Querist) 09 August 2014
Thanks for your valuable reply. All the cheques were out dated except one check and we have evidence of giving him 2 lakhs through bank almost 18 months ago.
Y V Vishweshwar Rao
(Expert) 10 August 2014
1-It is requrired to collect a Certificate of payment from Your bank through which you paid the Amount to your Creditor/ Private Financier . This will be helpful to you to establish that you have paid the original/Principal amount under the Loan Transaction
2- Deny the rate of interest @ Rs;- 5/- Per Month
3- Limitation Period & Cheque Validity period be verified with local Advocate
ajay sethi
(Expert) 10 August 2014
contact a local lawyer . contents of legal notice have to be gone into .
Guest
(Expert) 10 August 2014
@ Harsha,
What is necessary to be seen is whether there was any hand loan agreement executed between you and the person from whom you borrowed money. As you said you have paid the money to the person kindly take out your account statement which reflects the payment of same by cheque.
As you said the lender has issued legal notice stating you have to pay rs. 4,00,000/- and the said notice is under sec 138 of N I Act, what is necessary to be seen here is how many cheques you issued to him while borrowing money.
Subsequent to the same the number of cheques which you have issued kindly try to recollect the numbers of the same and find out whether you have got new cheque book issued in your name after the loan transaction. (Kindly see whether the loan transaction was prior to 2012, if so, the cheques issued by you prior to 2012 has got no validity as per GR of RBI)
Reply the notice issued to you in a proper manner denying the facts and establishing the circumstances in your favour by way of evidence so that in the event the lender institutes a case before court you are in a position to rebut his claim by way of your defence.
Sri Vijayan.A
(Expert) 10 August 2014
Dear Harsha,
I fully endorse the views of Mr.Yogesh.
You said the loan borrowed a few years ago (More than 3 years back); but the notice says that it is January 2014.
This means the lender has fabricated a hand loan note. Please verify whether you have written any documents in favour of him.
Regarding 138, I think it is not a big issue provided you have written date on the cheque.
Any how, you consult a local lawyer.
Harsha
(Querist) 10 August 2014
the letter contains the following
1)That our client submits that u an my client are well known to each other and out that well acquaintance u have approached our client for a hand loam of 4 lakhs and promised to return the amount in 4 months for which our client agreed to and for that on 25-01-2014 our client had withdraw 2 lakhs from indian overseas bank and remaining 2 lakhs by cash and had given the total amount of 4 lakhs to u by way of cash for which u have executed a promissory note, promising to pay the principal with and interest of 1.5% per month within 4 months.
2) My client further states that whenmy client demanded u for the payment of the amount after given period u requested and postponed the matter again with various reasons and on demand u have issued a post dated cheque bearing no. xxxxx, dated 25-06-2014 promising to pay the interest later and again u called up my client and requested him to present the cheque on 8-07-2014 the cheque was returned for the reasons "funds insufficients" along with cheque return memo on 16-07-2014.
3) under the above circumstances my client instructed me to inform u and to demand u to make alternative arrangements for payment of cheque amount of 4 lakhs and also interest within 15 days from date of reciept of this legal notice failing which my client be left with no options apart from taking action against u under section 138 R/W 142 of negotiable instruments act, 1881 and u will be held liable for the costs and consequences thereof.
Harsha
(Querist) 10 August 2014
He also used vulgar language (abused even ladies with bad language) when we called him through phone and tried to comprise.So can we get those phone tapes(almost 2 months back) from network provider
Guest
(Expert) 10 August 2014
@ Harsha,
There is no crux in the notice issued by the lawyer of the lender. If you go through the same, it does not specify at all when the loan was advanced. Now the new situation has cropped up which is whether you or your father at any point of time executed promissory note agreeing to pay the amount in 4 months @ interest of 1.5%.
Though the lender has issued the notice of demand calling upon you for discharge of legal liability the same cannot stand as there is no mention of the amount you paid to him last year.
Now you will have to contest the case on the footing that the loan was advanced which you have already paid off and there is nothing balance and that pursuant to the same despite repeated reminders you called the lender to return the cheques he did not return those and mis-utilized the same. I would suggest you to engage a lawyer who would draft the reply of the notice as it is mandatory either you reply the notice of demand or else pay back the money as provisions of 138 N I Act.
If you have details of all the payments made to him, you can challenge the issuance of process once the case is instituted before court and you are served upon with the summons by preferring Criminal revision Application before Court of Sessions.
Adv D P Jindal
(Expert) 10 August 2014
Have you given the lender blank cheque: without date, payee and without amount?
Harsha
(Querist) 10 August 2014
he asked us to give empty checks and asked to sign in an bond paper in which date and amount is not mentioned
Guest
(Expert) 10 August 2014
@ Harsha,
What do you mean by a bond paper? pls clarify.
Harsha
(Querist) 10 August 2014
i mean its an empty stamp paper (which was written almost 3 yrs back)
Guest
(Expert) 10 August 2014
Do you mean to say that you signed a blank stamp paper which did not bear date and amount mentioned in it? If that is for so then in that case can you recall when did you sign the stamp paper atleast? If you can do so, you have chances of winning the case.
Guest
(Expert) 10 August 2014
Don't worry, you will win the case. Every stamp paper has a date of issuance by the Treasury. The validity of a stamp paper is for 6 months. If at all the lender has mis-utilized the stamp paper by incorporating something on it, doesn't mean he will win the case. The same goes against him.
Harsha
(Querist) 10 August 2014
its on may of 2011 and there is no date and amount written on the empty paper. Is there any validity period for these kind of papers
Guest
(Expert) 10 August 2014
Pls read above I have already clarified the same Harsha. I don't think you have to worry about loosing the case. On the contrary you have every chance of winning the same. So pls don't panic.
Harsha
(Querist) 10 August 2014
actually this case is on my father and he is out of state and he may reach home later in this month. He said me (in phone) that he was written an agreement on sale (along with stamp paper) of our house to him and if we failed to pay the money he will consider the money as house advance on june of 2011 and last year we sold our house to someone.
pls help me as i am a student and new to such kind of situations
Guest
(Expert) 10 August 2014
Can you mail me the details of the case or call me on my cell as now this is a turning point what you have mentioned.
Guest
(Expert) 10 August 2014
If you see there is no mention of the purchase of house by lender from your father or sale of house by your father. On the contrary the notice states that the money was advanced as hand loan which clearly rebuts the claim of the lender. Now at later point of time the lender cannot come up with a new set of facts as that shall go against him before the court if at all s/he chose to file case as the notice does not specify any thing in regard to the sale transaction more particularly agreement of sale as you stated.
T. Kalaiselvan, Advocate
(Expert) 13 August 2014
The above matter in extended stage appears to an advocate and his client meeting discussing he case. he author is furnishing information on piece meal basis. It is advised let the author meet a local lawyer in person and take his further advise on the subject as the experts here have rendered opinion more than sufficient.
Harsha
(Querist) 17 November 2014
We sended a reply in the month of august and they didnot took the notice and it was returned to us in september 2nd week and the notice was not opened. Today (17-11-2014) we received a legal notice from him with the same matter as we got it in the first notice.
PLEASE HELP US
V R SHROFF
(Expert) 17 November 2014
handwriting Expert will be a vital witnsss to prove you delivered cheque before 3 yrs.
series of cheque number will prove, u delivered it before 3 yrs.
Produce your Pass book entries.
Pro notes papers/ ink can prove it was old.
Harsha
(Querist) 17 November 2014
Sir, in the notice he mentioned that we gave him outdated cheque of no. xxxxx5of central bank of india on 25-06-2014
and in today's notice he says that he deposited the cheques in the september and october which were returned back and the cheque no.'s are xxxxx4 (the cheque serial no. is before that of the outdated cheque). Even after we sended him a reply, he didnot took the notice (returned back to us and it is untouched) and presented the cheques in back twice (once in seotember and in october). In the end he adds section 138 of NI act and STALE 250614.
