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Cheque bounce : shall i (victim) go appeal ?

(Querist) 07 January 2018 This query is : Open 
Hi

My Cheque Bounce Case Summary:
One of my friend took 2Lakhs money from me. He showed one property (site 30X40) and told me that he’ll buy that for me(as a mediator) . As he is my friend I believed him and gave 2 Lakh but later he didn’t buy it. He cheated me. He used my money for himself and after asking he gave me two post dated cheques which are get bounced later. Now I lodged only criminal case/compliant (civil case didn't put, because my lawyer cheated me, he didn't tel/guide ) against him in court. If he ready to go jail also. how can i get my money back? Please help

Hi, Judgement came as
cheque 1 : "The accused is sentenced to pay fine of RS. 1,45,000 /- and in default to undergo SI for 9 months. Out of fine amount RS.1,44,000 /- shall be paid to the complaint as compensation U/s 357 Cr.P.C. The fine amount shall be recovered from the accused personally and from his estate".

cheque 2 : "The accused is sentenced to pay fine of RS. 35,000 /- and in default to undergo SI for 9 months. Out of fine amount RS.34,000 /- shall be paid to the complaint as compensation U/s 357 Cr.P.C. The fine amount shall be recovered from the accused personally and from his estate".

Questions:

1. will total simple imprisonment become 9 + 9 = 18 months or it is 9 months only?
2. I did not filed civil case/suit earlier (Actually, my lawyer cheated me he didn't told me that we need to file civil case also. so i didn't file.) . Now after judgement if convict go to prison. then how can i recover my compensation amount?
3. will it benefit, if i go appeal in session court regarding increasing punishment/imprisonment
4. what should be my next step?

Please anyone suggest me.

Sudhir Kumar, Advocate (Expert) 08 January 2018
If you filed civil suit then you may not get even a single penny if he decides to go to jail without paying file (from where you were to be compensated.)
Sudhir Kumar, Advocate (Expert) 08 January 2018
Money given to friends and relatives is always a charity in the garb of loan which is given in expectation of refund but always taken with intention of non-refund.

Such loan is taken by a person:-

(i) Who lacks business sense and cannot raise funds out of his own business and suddenly wants to be rich.

(ii) who cannot raise bank loan because :-

Either
he himself is not creditworthy

Or
the purpose for which he seeks loan is illegal

or
the purpose for which he seeks loan is not at all commercially viable.

(iii) Who knows he can afford not to refund.
(iv) Who trusts his thick skin
(v) Who intends not to refund
(vi) Who has made fortification against action of refund.

So he has to find someone who can part with his money. SO he finds a lender near him (friend or relative)

Such loans are given by the persons :-

(i) Who has surplus money.
(ii) Who displays and boasts of such surplus money.
(iii) Who stupidly believe that there will be a refund.
(iv) Fails to realise as to why he alone (not bank) is being contacted for loan.
(v) Who has extreme trust on the debtor
(vi) who are either stupid or extremely greedy of the unusual (or illegal) rate of interest.

Such loans are always given

(i) Without documentation.
(ii) Without witness
(iii) Without guarantor.
(iv) During cordial relations

Soon after giving such loan :-

(a) Relations are no more remain cordial
(b) Business started by such money (easy money belonging to other) invariably fails.
(c) Such loans always sink and not refunded.
(d) Person seeking such refund suffers at legal process.
(e) Person seeking such refund legally or by persualtion is socially criticised.


Sudhir Kumar, Advocate (Expert) 08 January 2018
Why some shall at all believe that :-

(I) a third person could buy property for you.
(ii) you could not buy the said property for you
(iii) he will actually buy the property for you falsely signing at your place.
P. Venu (Expert) 08 January 2018
If this is a real story, your priority should be in getting back the money than your friend going to jail. Has the accused gone on appeal?
Yogesh (Querist) 08 January 2018
Hi P.Venu, He might go for appeal (still time i there till 23-Jan), if deposition amount is below 10%, How much court will tell him to deposit?. What shall i need to do so that court tell him to deposit more than 25%? is their any possibility higher court increasing his punishment (from 9 months to 18 or 24 months)?

Yogesh (Querist) 08 January 2018
Hi Sudhir Kumar, I agree with you but mistake has happened. put wrong step. finding way to overcome this.
Kumar Doab (Expert) 08 January 2018
You have prefixed 'IF' in your post.

If he is willing to pay, collect the money and be happy.
Kumar Doab (Expert) 08 January 2018
It is good to see that you are willing and inclined to not to err in future as per suggestions of Mr. Sudhir Kumar, Mr. P .Venu.
Sudhir Kumar, Advocate (Expert) 09 January 2018
It is tue that the facts are stranger than fiction.

Story narrated by you may be factual but appears a fully fiction.

It is surprising that court has convicted him (unless he has admitted having taken money and the money not being charity) . In the given circumstances he appears to have a good chance of appeal.
Yogesh (Querist) 09 January 2018
Sudhir Kumar sir, I had given him money Through Netbanking, So i had all evidences. so don't have other option than conviction. Now as punishment i less ( 9 months only ) he might go for jail. so that he can escape from burden. if my lawyer had put civil suite, then he woud have liability life long. and i had a chance of put case on his ancestral property (against his share) and he would have fear to make or set up any business. now as I didn't put civil suite, after comming out of jail he will roam like tiger (no fear). Our judicial system is funny and encourage to do crime rather than avoiding crime. my case is example, why i need to file both criminal case and civi suite. why i need to prove my correctness/demand for justice in both courts. is it not enough if i prove my correctness in one court?. is it not waste of man hours (unproductive with respect to nation) and infrastructure? and is it not encouraging lawyer to cheat innocent victims?. If you protect "Dharma", "Dharma" will protect you. if nobody ready to fix bugs in our system then it give raise to corruption and crimes. why cheque bounce compensation amount cannot be liability until he settle it (same as it civil suit). y he looses burden once he come out of jail. is it not unjustice to victim?. is it not flaw in our judicial system?. If criminal case give judgement after 8 years, then how can i file/put (without knowing convict or acquit) civil suit with in three years of cheque date?
Yogesh (Querist) 11 January 2018
Hi, Please anyone confirm this, is it applicable to my case (Judgement is on 23-Dec-2017)

The Supreme Court, has held that compensation ordered by the court would be recoverable even though a default sentence has been suffered.
A bench comprising Justice RF Nariman and Justice Navin Sinha upheld a Kerala High Court decision that had approved the order of magistrate by invoking Section 421 CrPC issuing a distress warrant against the accused for realising compensation ordered in a cheque bounce case but for different reasoning....

Read more at: http://www.livelaw.in/cheque-bounce-compensation-recoverable-accused-even-default-sentence-suffered-sc/
Sudhir Kumar, Advocate (Expert) 11 January 2018
You know the Supreme Court Judgement please proceed accordingly.
Dr J C Vashista (Expert) 13 January 2018
Why did you not file a civil suit U/O XXXVII Rule 1 & 2 CPC for recovery of the money?
However, if the cheques date back upto 3 years, you must file now.
Dr J C Vashista (Expert) 13 January 2018
Supreme Court judgment is cristal clear the accused can not escape his liability (civil) even if he has served jail term.
Yogesh (Querist) 21 February 2018
Dear legal advisers,
Accused appealed in session court against the judgment from trial court. I am confident that he will not get acquit (as i have strong evidences). So my question is
As Accused, he went appeal in session court, is there any chance/scope/opportunity for me (complainant/victim) to request/impose more compensation/fine and punishment to Accused in session court? will session court consider my arguments/concerns? or otherwise, will it keep same compensation/fine and punishment?


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