Civil Procedure Code (CPC)

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vicky   10 December 2020

Cheque promissory notes acknowledgement on letterhead

 Hi Sir!

One of my Partner X got retired from the Partnership firm few months back. While Signing the Retirement Deed X also gave an Signed Acknowledgement on Letterhead that he Received My Instruments bearing Cheque No. & Promissory Notes as a Surety in order to receive his Investment & Profit Amount of 20 Lakhs which the firm is liable to him during his Retirement. After a Month we paid his 20 Lakhs & he also gave Amount Received acknowledgement on 100 Rs Stamp Paper also. BUT He haven't Returned My Cheques & Promissory Notes.


Suddenly after 20 days X insisted to bounce my cheque through some Y Person & issued Legal notice stating that Myself is liable to Mr. Y by 18 Lakhs which is mentioned on my blank signed Promissory Note & on repeated requests that I gave a Cheque for 9 Lakhs as a Part payment  But it got bounced in the Bank. So, I has to arrange that amount in 15 days or else that Y person will file NI cases against me. But I had Proof of Letterhead Acknowledgement & proof that also shows amount 20 Lakhs received by X after his Retirement  But failed to return My Instruments  after his Retirement as mentioned in the Letterhead . My question is will the Signed Letterhead without a Revenue Stamp Acknowledgement that he received my instruments will stand as a Proof to get rid of these false NI cases against me? & how should I Proceed further? Please help me. Thank You!



 9 Replies

P. Venu (Advocate)     11 December 2020

You may reply to the notice bringing facts on record esp. that the cheque was given as security/surety and not in discharge of any legally enforceable debt. 

Dr J C Vashista (Lawyer)     12 December 2020

Complicated facts.

It would be better to consult and engage a local prudent lawyer for appreciation of facts/ documents, professional advise and necessary proceeding.

vicky   12 December 2020

Hi Sir!

 

I already gave a legal notice to Mr. X to return my Cheques & Notes which are in his custody that are Only given as a Surety for receiving his Retirement Amount of 20 Lakhs BUT he failed to return them even after receiving his Amount. Than Mr.X issued Reply notice through his advocate that he Doesn't have them at all But Agreed that he received 20 Lakhs Amount & immediately made one of my Cheque bounced through Mr.Y & that person also issued legal notice to me saying that I am liable to him by 18 lakhs & to clear the amount within 15 days. To Mr. Y also we issued Reply notice & mentioned how can U bounce my cheque when I gave them to Mr X Only as a Surety for his 20 Lakhs & Mr. X gave Acknowledgement for the same. Things were standing at this situation at Present.

My Only Concern is will the Acknowledgement of Mr.X on Letterhead stands as a Solid Proof for me to get out of this Mess? Though My Advocate said it is Ok But I am very much concerned about it because its not acknowledged on a Stamp Paper. Please enlighten me regarding this. Thank You!

PREMCHAND RAMACHANDRAN (lawyer)     12 December 2020

does the acknowledgement contain the factum of receiving the cheques by Mr x . if no then you gona in big trouble. you need to prove that the cheque was indeed given to x and not y ... the denial by x having not received any cheques ..will only increase your burden ... you should have referred to the cheques and promissory notes in the receipt itself *** my intelligence says your remedy is only to grill x and y in the witness box ... no other remedy

vicky   12 December 2020

Hi Sir!

 

Yes in the Acknowledgement it was Clearly mentioned the below things


1) Mr.X has received my Cheques & Promissory Notes.

2) Cheque Numbers are mentioned

3) The Purpose for why Mr. X received them

4) Date of Receiving them

5) To Return them once Mr.X purpose is fulfilled. (i.e., After Mr. X receiving his Retirement benefit of 20 Lakhs)

 

So, will this stand as a Solid Proof to save me if its acknowledged only on Firm Letterhead instead of a Stamp paper? Thank You Sir!

P. Venu (Advocate)     12 December 2020

It is good that you have already brought facts on record in writing. Anyhow, you may reply to the statutory notice on the same line, avoiding any contradiction or inconsistency.

To my understanding, your advocate's opinion is quite professional. Proceedings under NI 138 is criminal in nature and the onus vests upon the complainant to prove his allegation beyond reasonable doubt. If you enter into defence, the standard of proof is only that of preponderance of probability.

In a criminal proceeding, it is of no consequence if the documents are not properly stamped.

 

vicky   12 December 2020

Hi Sir!

 

Do you mean to say that My Evidence is Not Enough to save me from this issue? Thank You!

P. Venu (Advocate)     12 December 2020

I am afraid you are missing the point. My suggestion has been that it is almost impossible for the complainant to prove his case. And it is very easy for for you to defend.

As already stated, cheque-bounce is a criminal proceedings. In a criminal proceeding, the accused person need not give any evidence at all. It is for the complainant prove his case. Given the facts of this case, evidence proving your innocence could be adduced by cross examining the complainant. This could be further supplemented during questioning by the Court under the provisions of Section 313 CrPC.

If required you can also present your evidence. 

 

vicky   12 December 2020

Thank You So Much Sir. You gave me Very Quite Useful information. 🙂


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