Can civil matter and criminal complaint continue together
4WhatIsRight
(Querist) 26 January 2014
This query is : Resolved
I haveentered into an agreement for supply of auto spares.
Order was made verbally along with advance.
I received a sum of rs.1,50000 as advance and acknowledged by money receipt as received advance from mr.x.
Money receipt acknowleding advance (simply received rs.150000 as advance) is the only document between us.
Now mr.x who does not intend to take delivery of goods have lodged a concocted criminal complaint with police station that he had made advance for buying machinery(as the money receipt mention amount as advance without any other details) and he has now found that the machinery is hypothecated to bank.
Hence i have cheated him. Sec 420 and 120b.
I have informed the p.s. and senior officers in writing that i have received the advance from mr.x and it was for spares and not machinery along with a copy of legal notice sent to mr.x.
Mr.x has not replied to our notice wherein we have asked to pay and take delivery of goods lying ready since long, failing which we shall dispose the material and recover cost.
The material are occupying large space.
We need to dispose the same.
My counsel suggest filing a civil suit for recovery, but are apprehensive that police being motivated might harass and or even arrest me on the pretext that there is a complaint against me.
I have filed an rti to get details of the complaint as the officer being motivated is not disclosing the details of the complaint.
He has not even replied to my rti in 40days.
I have sent legal notices too, but mr.x has not replied.
What shall i do, to recover dues in case if mr.x does not lift the goods.
Guest
(Expert) 26 January 2014
You are mixing up several contradictory things together. Your query is so confused that several questions arise out of your own query.
1) Was any formal order of the party placed for purchase of the spare parts?
2) Whether the agreement was in writing or oral?
3) If Mr. x has not yet received delivery of the goods from you, on what basis you can claim the cost of the machinery or spare parts?
4) Can your counsel, who proposed for civil suit, assure you of winning the suit without the sales transaction having been completed?
4WhatIsRight
(Querist) 26 January 2014
Money received against verbal order as normal business practice.
No other documents of any nature between both parties.
Then what to do.
Fear of motivated police action is traumatising
4WhatIsRight
(Querist) 26 January 2014
Thank you dhingra sir and barman sir
4WhatIsRight
(Querist) 26 January 2014
Material lying at my end.
Shall i dispose it as scrap after notice to the buyer.
Guest
(Expert) 26 January 2014
When thinking about some legal recourse, possession of proof is quite essential. Verbal dialogue has no relevance for the case. So, your civil case is defeated from the very initial stage. Wisdom of your counsel becomes questionable, who suggested you for a civil suit.
Now, if you dispose of the material as a scrap after notice, you would be doing another wrong, if you do not intend to settle the matter amicably by making refund of advance or supply of the unencumbered material of the purchaser's requirement.
Secondly, if you dispose of the material as scrap, the opposite party can easily prove that you tried to sell scrap instead of the desired fresh product.
Rest depends upon your own wisdom, how you prefer to settle the dispute.
Devajyoti Barman
(Expert) 26 January 2014
In stead of sending any notice I would advice you to file suit.
It would help you you to give colour of this dispute a civil one in which case the criminal court might be hesitant to invoke its jurisdiction.
However I may say both civil and criminal proceeding can continue on the same subject matter.
4WhatIsRight
(Querist) 27 January 2014
Thank you burman sir.
You have touched the area of most serious concern.
Now what i shall do with material my end or hold or dispose after notice.
Huge storage space because of size.
Illiquid as made customized.
4WhatIsRight
(Querist) 27 January 2014
1.send notice
2.file a suit for damages or recovery.
3.inform p.s. about this development.
4.dispose material and deposit the proceeds with court.
How to go about Point 4.
Devajyoti Barman
(Expert) 27 January 2014
You can ask for such relief in the suit itself in interim remedy.
4WhatIsRight
(Querist) 27 January 2014
We want to dispose the product as it is taking too much of space.
Shall we issue notice for payment and lifting the goods, failing which we dispose.
Or shall we seek as relief in suit to dispose and deposit the proceeds with court.
counsel is in dilemma.
Vidhi Joshi
(Expert) 27 January 2014
Better try to negotiate the matter by paying the money back to Mr. X to avoid court hassle's ahead.
4WhatIsRight
(Querist) 27 January 2014
But about the losses we suffer because of the material being custom made.
ajay sethi
(Expert) 27 January 2014
the problem is you dont have written purchase order . the advance you received does not mention the goods for which advance was received . hence party has filed false complaint and mentioned it is for machinery whereas you say it is for spares .
issue legal notice that as party has failed to take delivery of spares ordered you would be disposing it of as scrap . adjust advance against price received for scrap and sue for balance amount
T. Kalaiselvan, Advocate
(Expert) 27 January 2014
I think Mr. Ajay seth has given a good piece of suggestion which seems to be practicable. You may follow it.
4WhatIsRight
(Querist) 30 January 2014
Sent notice as ajay sir advised.
Received notice under 41(1) from p.s. no details as regards to complaint against us. No reply to rti with ps.
Police acting in a motivated manner.
Got an appointment with commisioner to discuss possible infringement of article14,19,21.
No prelim. Enquiry and will cause social stigma as well as loss of reputation in business circle.
Money suit to be filed after disposal of goods to intersted buyer. Under recovery of price plus other cost,interest and damages.
4WhatIsRight
(Querist) 01 February 2014
What damages i can seek other than under recovery, storage, guarding, damages, legal cost, interest.
