Locus standi u/s 156(3) before sending to police, information of complaint from govt. dept.
madhu mittal
(Querist) 28 June 2013
This query is : Resolved
A loan was given to a Govt. Employee (Senior Clerk, handicapped by legs and when he writes his hand tremble) repayable in 24 installments on the basis of 24 post dated cheques, in addition to this, an undertaking from his Department(employer) was also given that if the cheque of borrower will be dishonoured, the amount of cheque will be deducted from his salary and sent to financer. At the time of taking loan, on the back portion of the undertaking, it was written “this undertaking is given by Mr. X and Mr. X is authorized to give this undertaking” and this writing is written by a person (As borrower’s hand trembles when he writes) who is accompanied with the borrower and , unknown to financer, afterwards, it was signed by the borrower. The said undertaking is not verified by the financer from the Department.
When cheques were dishonoured, firstly, the borrower was asked by regd letter that the amount should be deposited, otherwise your undertaking will be sent to department, when amount was not paid, the undertaking was sent to department, and afterwards, he has deposited the amount of dishonoured cheques, but no reply from the department.
But again, the cheques were dishonoured, same process was followed, but this time, his department wrote that the undertaking was not issued by this department and you should not do correspondence with department. Thus four cheques were become due and a notice u/s 138 dated 28.06.2013 was also issued to borrower, that was duly received by him on 01.06.2013. The Department gave notice to the borrower for action against him on 15.04.2013, 02.05.2013, 24.05.2013 and lastly on 30.05.2013 u/s 16 of C.C.A. of departmental inquiry along with photocopy of undertaking also.
After taking photocopy of undertaking, the borrower put a complaint u/s 156(3) to Magistrate court on 04.06.2013( because lodging of FIR was denied by the police on 02.06.2013 ) that the undertaking is made by the employee of financer to pressurize me to repay and it is forged one, only the signature (taken at the time of giving loan, at blank papers) is mine, and writing that undertaking is given by my departments’ authorized person is not in my handwriting, thus offence u/s 409,420,467,468,471 and 120 B was committed. This information and copy of complaint against financers’ employees u/s 156(3) was got by financer from borrowers’ department letter dated 26.06.2013 in reply of financers’ letter for getting deducted amount of cheques from salary of borrower, as the borrower gave this complainants’ copy to his department in reply dated 20.06.2013 to notice u/s 16 C.C.A issued to borrower and in said reply dated 20.06.2013, it has come to notice that said borrower took loan from another financer and said allegation against another financer were made u/s 156(3) on 01.06.2003 in one another magistrate court and copy of that was also given to his department.
Now First question, whether the employees of financer can present themselves in court for telling the whole truth, before sending the complaint to police u/s 153(3) i.e whether there is a locus standi to appear in the court as the financer got the information from the dept, and not from the court. Second question, whether the complaint for making a false complaint u/s 156(3) against financers’ employees should be made against the borrower. Third any remedy to financer to save himself and his employees and get punished the borrower.
Sudhir Kumar, Advocate
(Expert) 29 June 2013
I AM CLEAR OF THE CASE.
Before replying I would like to know:-
(i) Are you representing Bank.
(ii) What is stage of case u/s 138 NI Act.
respond urgently.
Nadeem Qureshi
(Expert) 29 June 2013
Dear Querist
1.whether the employees of financer can present themselves in court for telling the whole truth, before sending the complaint to police u/s 153(3) i.e whether there is a locus standi to appear in the court as the financer got the information from the dept, and not from the court.
Opinion: no the tentative accused has no right to appear before Court at this stage.
2. whether the complaint for making a false complaint u/s 156(3) against financers’ employees should be made against the borrower?
Opinion: NO, it can not be possible, the court either allow this complaint and pass an order for Registered a case and start investigation or dismiss the complaint.
3.Third any remedy to financer to save himself and his employees and get punished the borrower.
Opinion: At this time wait and watch, if the magistrate pass an order against financier, then file a Quashing Petition before HC u/s 482 of CR.PC.
Feel Free to Call
madhu mittal
(Querist) 29 June 2013
Respected Sir Sudhir ji and Nadeem ji,
Thank you for attending my query,
(i)I am representing financer i.e. Non Banking Finance Company. (ii)We have only given notice u/s 138 on 28.05.2013, complainant yet to be lodged.
Devajyoti Barman
(Expert) 29 June 2013
Aparet form the present case file cheque bouncing case as well.
Filing civil suit for recovery of money is another option.
madhu mittal
(Querist) 29 June 2013
Respected Devajyoti ji,
I Could not understand meaning of
"Aparet form the present case".
Rajendra K Goyal
(Expert) 29 June 2013
One case is filed by the borrower u/s 156(3) and apart from this case, file case under section 138 NI Act for the bounced cheque.
Apart from this you can file a civil suit for recovery of the total outstanding. The department who gave (?) the undertaking may also be made a party.
Sudhir Kumar, Advocate
(Expert) 29 June 2013
Understood your case.
Initially you are at fault for not initiating criminal action for forgery as and when the department disowned the undertaking.
First of all a Government servant is required to maintain “absolute integrity” in official as well as personal life. When you have reported forgery to the department, then the department itself should have issued major penalty chargesheet under rule 14 and not minor penalty chargesheet under rule 16. The Govt has existing policy regarding major penalty in integrity cases. Please make RTI to know whether he is charged for forgery / Of transaction or both
You can submit a complaint of favoritism against his superior officers to the CVC.
Now the person has obtained the loan without intention of repaying that is the reason that all his cheques are bouncing. You have not done home work property. It is not only the undertaking rather he might have also cheated you on the repaying capacity. You have probably given him loan on being convinced of his repaying capacity and since all cheques are bouncing he has no capacity to repay. Have you made RTI with dep’t as to how much he owes to the department
Please look into that aspect and case of cheating will lie on him.
As advised above you have to initiate criminal case as and when each and every cheque bounces. Without this you are not getting money.
Now coming to the criminal case he has filed.
What did the bang attain by attempting forgery?
How bank at the time of giving loan satisfied that he has no repaying capacity and that the cheques will bounce so that they need to forge an undertaking from department?
Did the undertaking bear the seal of the department?
Whether his designation/ pay scale etc is correctly mentioned?
What is the procedure for a borrower to submit such undertaking to the financer?
Whether bank officials have adopted any separate procedure for him?
What purpose he stated in the loan application and whether the amount was utilised for the said purpose?
Whether the loan was given by cheque?
Cheque in whose favour?
Whether enchased by holder?
Mr Barman has advice that in additional to filing criminal action (s/138 NI Act) you can also file civil suit for recovery of debt. I believe he never refuted that he owes you money.
While filing civil suit you need not make deptt a respondent as this will only delay the process. Once you have a decree in your favour you can get his salary attached (to the extent allowed as per law) even if the employer is not a respondent.
Sudhir Kumar, Advocate
(Expert) 29 June 2013
repeated at
http://www.lawyersclubindia.com/forum/Locus-standi-u-s-156-3-before-sending-to-police-informatio-83484.asp#.Uc7TWNjQzmk
Sudhir Kumar, Advocate
(Expert) 29 June 2013
further <
Notwithstanding the undertaking. Bouncing of cheque may be a crime under S/138 NI Act. But if done by Govt servant that he issued a cheque without intention of getting it honoured. This amounts to lack of integrity and is a cause in itself for initiation of disciplinary proceedings.
further a Govt servant obtaining a loan by misrepresenting his paying capacity is also a cause of lack of integrity and can be a reason for major penalty case.
Either your complaint is sketchy or the departmental officials are not aware of rules or they are favouring him.
Sudhir Kumar, Advocate
(Expert) 29 June 2013
Understood your case.
Initially you are at fault for not initiating criminal action for forgery as and when the department disowned the undertaking.
First of all a Government servant is required to maintain “absolute integrity” in official as well as personal life. When you have reported forgery to the department, then the department itself should have issued major penalty chargesheet under rule 14 and not minor penalty chargesheet under rule 16. The Govt has existing policy regarding major penalty in integrity cases. Please make RTI to know whether he is charged for forgery / Of transaction or both
You can submit a complaint of favoritism against his superior officers to the CVC.
Now the person has obtained the loan without intention of repaying that is the reason that all his cheques are bouncing. You have not done home work property. It is not only the undertaking rather he might have also cheated you on the repaying capacity. You have probably given him loan on being convinced of his repaying capacity and since all cheques are bouncing he has no capacity to repay. Have you made RTI with dep’t as to how much he owes to the department
Please look into that aspect and case of cheating will lie on him.
As advised above you have to initiate criminal case as and when each and every cheque bounces. Without this you are not getting money.
Now coming to the criminal case he has filed.
What did the bang attain by attempting forgery?
How bank at the time of giving loan satisfied that he has no repaying capacity and that the cheques will bounce so that they need to forge an undertaking from department?
Did the undertaking bear the seal of the department?
Whether his designation/ pay scale etc is correctly mentioned?
What is the procedure for a borrower to submit such undertaking to the financer?
Whether bank officials have adopted any separate procedure for him?
What purpose he stated in the loan application and whether the amount was utilised for the said purpose?
Whether the loan was given by cheque?
Cheque in whose favour?
Whether enchased by holder?
Mr Barman has advice that in additional to filing criminal action (s/138 NI Act) you can also file civil suit for recovery of debt. I believe he never refuted that he owes you money.
While filing civil suit you need not make deptt a respondent as this will only delay the process. Once you have a decree in your favour you can get his salary attached (to the extent allowed as per law) even if the employer is not a respondent.
Raj Kumar Makkad
(Expert) 30 June 2013
Why have you posted a repeated query once again before the same experts?
madhu mittal
(Querist) 30 June 2013
Thanks all the experts for attending my query in general and Sh. Sudhir ji and Sh. Raj kumar Makkad ji and sh. Nadeem ji in particular. I post the query in general forum also, as some of learned members of Club is not listed as experts yet, so if any one of them also want to solve the query, they are unable if query is posted in expert column only.
Did the undertaking bear the seal of the department? – yes
Whether his designation/ pay scale etc is correctly mentioned?- yes
What is the procedure for a borrower to submit such undertaking to the financer?-
We got it from the borrower and at the back of it, in the handwriting of the borrower, It is got confirmed that the undertaking is given by Mr. X who is authorized to give it, and below this borrower signs.
Whether bank officials have adopted any separate procedure for him?
- No, but here, the borrower is handicapped as his hands tremble, so “the undertaking is given by Mr. X who is authorized to give it” is not written in his handwriting, but below this writing he signed.
What purpose he stated in the loan application and whether the amount was utilised for the said purpose? Purpose-To buy consumer things, utilization-we do not know.
Whether the loan was given by cheque? Yes, a/c payee cheque.
Cheque in whose favour? -in the name of borrower.
Whether enchased by holder? Yes.
