Legal liability???????
Avinash Soni
(Querist) 31 October 2011
This query is : Resolved
i have a case in which a person borrow Rs. 2.50 lacs from some other person, and for securing that amount he gave him a blank cheque and a stamp duly signed by his(borrower)Wife but his wife have no idea about the money and the transaction and she signed blank stamp and a blank cheque in the good faith of her husband, she was not aware about the this transaction even the cheque also relates to an account which have nil transaction after its opening from last five years. even borrower didn't tell her wife the about this transaction. after few months of this transaction he got dead after his death the lender wants to sue Borrowers' wife for the money he gave to her husband. even she have no idea that what have been wrote in the stamp paper? she signed the stamp when it was blank. and she has no business transaction with any one. and the amount have been borrowed in the cash.no banking transaction had taken place for the same
in this case whether wife is legaly liable for the money borrowed by the husband ?
what are the circumstances under which she can survive from this transaction where she have no interest in this transaction?
Please help me in this case what should i need to do for saving that lady?
Advocate Rajkumarlaxman
(Expert) 01 November 2011
Get the document first and state the contents of the stamp we will let you know the way out.
adv. rajeev ( rajoo )
(Expert) 01 November 2011
Yes she will be held liable. So to avoid it let her issue legal notice to the person to whom cheques are given by her husband to return those immediately and also inform the same to the bank instructing the bank to stop payment of the cheques quoting itz numbers. Inform the stop payment matter to the person to whom cheuqes are issued.
Avinash Soni
(Querist) 01 November 2011
That person is very bad , and he will not provide the contents and the other information to us........ unless we pay him the full amount borrowed.
Que-1:-So how can i get the Contents of those documents?
and rajeev sir she was not involved in any transaction and her husband told her that he requires cheque for the new insurance policy..........
ok. my another question is can what can lender do in this situatuion ? what will be his steps in near future ?
Ravikant Soni
(Expert) 01 November 2011
ok. my another question is can what can lender do in this situatuion ? what will be his steps in near future ?.
He can move for money recovery suit..regular suit.
He can move for summary suit under orderXXXVII.
He can file complaint under 138 if cheque dishonored.
Avinash Soni
(Querist) 01 November 2011
what kind of Steps we can take to survive ourself ?
he took cheque for securing the money landed by him but the transaction was in cash he didnot give any cheque to to her husband for such transaction?
ajay sethi
(Expert) 01 November 2011
consult a local lawyer
prabhakar singh
(Expert) 01 November 2011
Author!
you are advised to engage a lawyer now.
Shonee Kapoor
(Expert) 01 November 2011
Situation is precarious.
Someone rightly said, think before you speak and read before you sign.
Regards,
Shonee Kapoor
harassed.by.498a@gmail.com
Arun Kumar Bhagat
(Expert) 01 November 2011
No need to worry. A loan transaction of value more than Rs. 20,000/-is illegal as per Sec.269SS of Income Tax Act and it is punishable u/s 271 of IT Act. See these two Supreme Court Judgements : (1)
Equivalent Citation: AIR2008SC1325, 2008(5)BomCR470, [2008]141CompCas665(SC), 2008CriLJ1172, 2008(1)CTC433,
JT2008(1)SC485, 2008(1)KLT425(SC), 2008(4)MhLj354, 2008(1)SCALE421, (2008)4SCC54, 2008 (1) MLJ.Crl.1149 SC
IN THE SUPREME COURT OF INDIA
Criminal Appeal No. 518 of 2006
Decided On: 11.01.2008
Appellants: Krishna Janardhan Bhat
Vs.
Respondent: Dattatraya G. Hegde
Hon'ble Judges: S.B. Sinha and Harjit Singh Bedi, JJ.
(2)
Indian Law: Dishonour of cheque case laws-Supreme Court 2007
indianlaw-arun.blogspot.com/2010/.../dishonour-of-cheque_4265.ht...
21 Sep 2010 – (John K.John Vs Tom Varghese & Anr.) 2007(3) Apex Court Judgments 655 (S.C.) : 2007(4) Civil Court Cases 690 (S.C.) : 2007(4) Criminal ...
Ravikant Soni
(Expert) 02 November 2011
I beg to differ Mr Bhagat.
The complainant will prove the debt by using stamp paper (blank signed).
Engage a eminent lawyer.
Ravikant Soni
(Expert) 02 November 2011
@Bhagat sir,
....No need to worry. A loan transaction of value more than20,000/-is illegal as per Sec.269SS of Income Tax Act and it is punishable u/s 271 of IT Act.....
I want to mention here:
The wordings of section 269ss is starting as:
No person shall, after the 30th day of June, 1984, take or accept from any other person (hereafter in this section referred to as the depositor) any loan or deposit otherwise than by an account payee cheque or account payee bank draft...........
THEREFOR IT IS A COMPULSION UPON DEBTOR ONLY NOT UPON CREDITOR.
Moreover punishment u/s 271 is also imposed upon debtor only, not upon creditor. What he showed in his books as loan would be considered as income.
prabhakar singh
(Expert) 02 November 2011
About section269ss of IT Act!
A BUSINESS ALWAYS REALIZE SHORTAGE OF CAPITAL.So'Finance' is the need of any business;but existence of black money in the economy of india is more than white so businessmen started to use black money showing cash loan in their books and to encounter such situation this provision
was brought.
But this is true that it was argued in the case referred by Mr.Bhagat as defence but hardly i could find any ratio decendi despite the provision got discussed in the case with reference to issue that there is no presumption u/s 138NIA for "for the fact that it is enforceable" and an accused is not bound to come to witness box to prove any defence which he can prove on the strenth of any statute as jurisprudence of criminal law recognizes Right of silence of accused.
Avinash Soni
(Querist) 02 November 2011
i have some points want to clarification on them, so if any one can help me please suggest me ...........
A) the Leady is not so much leatret.
B) She is not doing any business.
c) Her husband told her that he needs her cheque for new Insurance policy .
D) there is no banking transaction in the Account that can prove that she had taken money from him, even her husband has no bank account so how he (lender) will prove that he lend the Moaney to them?
E)he showing that he got that money from other person in a bank account and the same money he has given them?
F)Bank account has nil Transaction from past five yaers .
G) she is not interested in any business.
h) she has no income Source .
I)she never involved in any transaction.
ajay sethi
(Expert) 02 November 2011
the fact of the case is lady has issued a cheque . if the cheque is blank and date , amounts have been filled in by the complainant it amounts to material lateration . no cheque bouncing case would be mintanable .
in case complaint filed in your defence you have to raise the plea that the lady was illliterate and was not carrying on any business etc .
it is for the courts to decide
Arun Kumar Bhagat
(Expert) 03 November 2011
"if the cheque is blank and date , amounts have been filled in by the complainant it amounts to material lateration . no cheque bouncing case would be mintanable ."
I beg to differ with this observation in view of Section 20 of the N.I.Act. The Complainant has every right to fill up the blank cheque and this will not amount to material alteration.
Avinash Soni
(Querist) 04 November 2011
MR. BHAGAT MY PERCEPTIONS IS :
1. N.I.Act is not applicable to Blank or Post-Dated cheques.
2. N.I.Act is not applicable to third-party cheques given towards debt repayment of the original debt of another person.
Avinash Soni
(Querist) 04 November 2011
This was reported in "Times of India, dated 20 February'2010, Mumbai edition, page 01".
Avinash Soni
(Querist) 04 November 2011
‘Law is not meant for speedy loan recovery’
Mumbai: The Bombay high court has upheld the all-clear to Ahmednagar resident R a j e n d r a Warma in a blank cheque bouncing case. Ramkrishna Urban Cooperative Credit Society (RUCCS) had given a loan of Rs. 2 lakh to Warma in 2000. Warma had issued 10 blank post-dated cheques at that time as security. One of these cheques, dated January 2008, bounced, following which RUCCS lodged a criminal complaint against Warma. The magistrate’s court held that Warma was not guilty under the Negotiable Instruments Act and acquitted him. It also held that while Warma had receipts to prove that he had repaid the entire loan amount in 2005, the bank failed to produce records after 2003
ajay sethi
(Expert) 04 November 2011
i had quoted bombay high court judgements / kerala high court judgement wherein it has been held that where blank cheques have been filled , amount , date aaded no complaint under section 138 NI is maintanable .
DEFENSE ADVOCATE.-firmaction@g
(Expert) 04 November 2011
All told lady is not liable since the holder has to prove legal liability against her.Only stamp paper is not sufficient if not supported by books of account or bank withdrawals .
Avinash Soni
(Querist) 04 November 2011
In order to prove offence punishable under sec. 138 of the said Act, five ingredients are required to be proved as laid down by the Apex Court in Paragraph No. 10 in Kusum Ignotes and Alloys Ltd. vs. Pennar Peterson Securities Ltd.: (2002 ) 2 SCC 745. They are as follows :- "(i) A person must have drawn a cheque on an account maintained by him in a Bank for payment of certain amount of money to another person from out of that account for the discharge of any legally enforceable 5
debt or other liability.
(ii) that cheque has been presented to the Bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier;
(iii) that cheque is returned by the Bank unpaid, either because the amount of money standing to the credit of the account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with the Bank;
(iv) the payee or the holder in due course of the cheque makes a demand for the payment of the said amount of money by giving a notice in writing to the drawer of the cheque within 15 days of the receipt of the information by him from the Bank regarding return of the cheque as unpaid.
(v) the drawer of such cheque fails to make payment of the said amount of money to the payee or the holder in due course of the cheque within 30 days of the receipt of such notice."
Avinash Soni
(Querist) 04 November 2011
in this Case i want to Know the Mean of "legally enforceable debt or other liability" ?
Meaning of "legally enforceable debt or other liability" and these five points will play a vital role in the case?
Avinash Soni
(Querist) 07 November 2011
please help me in this case for knowing the mean of "legally enforceable debt or other liability" ?
