False cheque
N.Damodaram Naidu
(Querist) 27 July 2013
This query is : Resolved
Dear all,
A friend borrowed Rs.600000/- as hand loan from me and gave a cheque to present after two months to realise that money. Later he didn't respond to me. I presented the cheque for collection and it was bounced with an endorsement 'Debit Account Blocked'. I filed a complaint against him u/s 138 of N.I.Act. the case is now being trialed. P.W.2, the bank manager gave evidence that 'the cheque does not belong to the accused and it belongs to some other person,the accused might have misused that cheque'. Now my advocate says this case does not come under the provisions of s.138 of N.I. Act and the case may be disposed without any punishment to the accused.
Hence I request to provide citations if any regarding this type cases and what are the relevant provisons in I.P.C. and other codes if any. Please suggest me what I have to do to get back my money.
Advocate M.Bhadra
(Expert) 27 July 2013
You can file an another case u/sec 156(3) charge with 420 and 406 IPC in Magistrate Court
Andhra High Court
M/S. Opts Marketing Pvt. Ltd., vs The State Of A.P. on 25 January, 2001
THE HONOURABLE SRI JUSTICE BILAL NAZKI THE HON'BLE SRI JUSTICE V. ESWARAIAH THE HON'BLE SRI JUSTICE C.Y. SOMAYAJULU CRIMINAL PETITION No. 556 OF 1999
25-01-2001
M/s. OPTS MARKETING PVT. LTD.,
AND OTHERS.
THE STATE OF A.P.
Even after introduction of Sec.138 of the Negotiable Instruments Act, prosecution under section 420 IPC is maintainable in case of dishonour of cheques or postdated cheques issued towards payment of price of the goods purchased or hand loan taken, or in discharge of an antecedent debt or towards payment of goods supplier earlier, if the charge sheet contains an allegation that the accused had dishonest intention not to pay even at the time of issuance of the cheque, and the act of issuing the cheque, which was dishonoured, caused damage to his mind, body or reputation. Private complaint or FIR alleging offence under Sec.420 IPC for dishonour of cheques or postdated cheques cannot be quashed under Sec.482 Cr.P.C., if the averments in the complaint show that the accused had, with a dishonest intention and to cause damage to his mind, body or reputation, issued the cheque which was not honoured.
If you have Loan Agreement then you can file a Civil Suit for Recovery of Money.
Dr J C Vashista
(Expert) 28 July 2013
Besides the criminal forgery, breach of trust and cheating, which I agree with Advocae M Bhardra, you can move in civil court for recovery of cheque amount, impleading the drawer of cheque also.
prabhakar singh
(Expert) 28 July 2013
STILL PROCEDURAL LAWS ARE DEFECTIVE.
THERE MUST BE SOME PROCEDURAL POWER TO VEST IN MAGISTRATE TO CONVERT THE CHARGES AS PER EVIDENCE BEFORE HIM OR COMPLAINANT SHOULD BE ARMED WITH RIGHT TO AMEND PLEADINGS TO MEET THESE SURPRISING SITUATIONS HE CAN NOT BE EXPECTED TO KNOW SINCE INCEPTION.
DEFENSE ADVOCATE.-firmaction@g
(Expert) 28 July 2013
I do not agree and the citation quoted does fit in for the present case.
1) Cheque is not a security document and even a novice in computer can easily print it.
2) So the complainant was not aware about the writing of the accused and even the bank account of the accused.
3)Apex court has rejected stories that cash was advanced and claimed to be hand loan without any documents or security in many cases.
Guest
(Expert) 28 July 2013
Mr. Naidu,
About your request for citations, the question arises what any citation would help you unless you are able to satisfy several questions to prove that (1) you had actually given handloan of Rs.6 lakhs in cash; (2) how you could manage cash of Rs.6 lakhs when you hold a small time position merely as a school assistant; (3) from which source or sources you could get such amount; (4) whether you accounted for that in your books or not; (5) cheque belongs to your friend's account; (6) if not, whether that cheque was actually handed over by your friend and that too in lieu of the stated handloan?
Also, a vital question arises, when you were aware of the fact that the cheque was not signed by your friend, what was the reason for taking that cheque as genuine.
If you have answer to these questions only then ask for citation for specific type of problem. Otherwise no use of asking for any citation.
N.Damodaram Naidu
(Querist) 28 July 2013
Dear Mr.Dhingra,
Thanks for an useful advice. The amount which I gave to him is my own earning for the last 10 years and also amount derived from the sale of agricultural land of my family. In fact the cheque that was given to me was signed before me by him and I believed him as there is no name in the cheque. No doubt his signature is true. He did not forge the signature of the original drawer of the cheque but he gave it to me by signing on it which does not belong to him. Even when I send a legal notice immediately after the cheque was bounced, he send me reply notice that the cheque given to me was lost by him with some other cheques and stated that he gave a police complaint regarding that and got endorsed by the police regarding lost of his cheques. But now during the course of trial the fact came out through the bank manager who is P.W.2 in the case that 'the cheque does not belong to the accused the signature on the cheque also does not belong to the drawyer of that cheque and the accused might have misused with clear intention to evade that money'
ajay sethi
(Expert) 28 July 2013
file complaint for cheating against the accused . I do hope that you have declared the loan of Rs 6lakhs in your books of account , do you have any documentary evidence of the accused having received the loan as claimed by you
Rajendra K Goyal
(Expert) 28 July 2013
If you have got evidences of arranging such a heavy money, and dared to give on loan in cash, not by cheque(Against Income Tax Directives) file case of cheating.
Guest
(Expert) 29 July 2013
Dear Mr. Naidu,
If you can prove through some handwriting expert about the signature in the handwritng of your friend on the cheque not belonging to his own account, you can prove cheating and fraud on his part.
But, since there may be some instances of your transaction having not been covered under some legal provisions, like cash payment of Rs. 6 Lakhs, etc., before taking any legal action, you actually need to personally consult some local expert, who may also be expert in taxation matters besides the civil law, to discuss the matter in detail by showing him documents in your possession to ask for his advice. If you like, you can also send copies of your documents to any of the experts of LCI through post or email for his opinion after detailed examination of your documents.
N.Damodaram Naidu
(Querist) 29 July 2013
Dear sirs,
In AIR 2000 SC 754 (G.SAGAR SURI VS. STATE OF U.P.) 'on facts it was held that filing of a complaint US. 406 and 420 IPC when a complaint U/s. 138 of N.I. Act was already pending was clearly an abuse of process of law'.
It is an obstacle for me to file a complaint against the accused.
Is there any chance to add charges under sections 406 and 420 of IPC to the existing case? If there is a chance kindly help me to do so.
