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Sunil (Manager)     18 April 2012

False cheque bounce case filed

After my wife's father gained heavenly abode, her brother wanted to gain control and possession of hereditary properties left behind by her father.  When sanity did not prevail over him, inspite of repeated requests to be fair, my wife filed a property case in 2006.  Subsequently, to harass my wife, her brother stole her very old chequebook in which no transactions had been done for over 10 years, the bank had made the account dormant in 2002. Her brother stole this chequebook from her late father's almirah.  She had given some blank signed cheques to her father at the time of her marriage about 15 years ago, to settle her dues, since she was moving abroad.  She forgot about the cheques for more than 10 years and the account became inactive in 2002 because of no activity and hardly any balance.  Her brother stole these cheques after his father passed away and my wife filed a case for her share in property.  He then filled the rest of the cheques, dated them for various dates in 2010, and tried to encash the cheques.  The cheques were returned by the bank.  He then threatened her to withdraw the property case, and when she did not agree, he filed a case under section 138, taking a stand that he had loaned this money to her in 2004 and taken post dated cheques for 2010.  The entries in the cheques are not in my wife's handwriting. My wife never had a need to borrow money, with God's grace.  He filed this case after my wife filed a property case.  The bank account was already inactive in the year when he says he collected the cheques from my wife.  He has not given any proof of loan in the court documents, only copies of cheques, where nothing except my wife's signatures from 10 years ago are genuine.  Please advise



Learning

 18 Replies

DEFENSE ADVOCATE.-firmaction@g (POWER OF DEFENSE IS IMMENSE )     18 April 2012

Contest the case you will win.


(Guest)

Refer to the case of Ramkrishna Urban Co-operative Credit.

Sunil (Manager)     19 April 2012

In any case, since we have already made a police complaint for theft, intimidation and fraud/forgery, should we file a criminal case also to recover the remaining cheques from him and to set him right.

Advocate Bhartesh goyal (advocate)     19 April 2012

No,you need not to file any criminal case more.polce will recover remaining cheques in theft case.Regarding cheque bounce case,your brother has to prove that he had advanced you loan.No substance in case.

Sunil (Manager)     23 April 2012

But, does the theft case have to be filed in the court as a criminal case against the complainant, or do we not file any case for theft and only defend ourselves in the 138 cheque bounce case. He may still be in possession of some cheques.

Sunil (Manager)     23 April 2012

 

Dear Learned Lawyers,

Please help me understand your suggestions and the best alternative out of the three mentioned below:

Alternative No . 1 - Should my wife move the magistrate's court or even High court directly for QUASHING of the summons in the 138 case, taking a plea that the case is a fabricated one - (attach letters from banks) -  and has been filed to harass me in the property case filed by me in the high court. That way, if my wife  can get a stay or the 138 case is Quashed, my wife will not have to appear in the 138 case in the magistrate's court.

Alternative No. 2 - Appear in the court with a lawyer or just have the lawyer appear on her behalf in the 138 case, on the date summoned.

Alternative No. 3 - Move the magistrate's/high court for registration of a FIR based on the Police complaint filed one year back, for theft and forgery of cheques and move the court for recovery of stolen cheques and punishment for forgery. At the same time, appear in the 138 case in the magistrate's court and/or file in high court for QUASHING of the summons in the 138 case.

DEFENSE ADVOCATE.-firmaction@g (POWER OF DEFENSE IS IMMENSE )     24 April 2012

No quash possible, you can move for other alternatives.

R Trivedi (advocate.dma@gmail.com)     24 April 2012

The fact of the case which you have highlighted is..

 

1. She gave the blank cheque to her father (his father also) to settle her dues. Any Documents or record ??

2. Now if the father has died, then certainly the cheque would go to legal heir, or the person suitably willed, if at all. 

 

So under the circumstances, it can be safely assumed (may fail at a later stage), that the natural holder of these blank cheque would be the son only, who is supposed to have stayed under the common roof with his father. He may have a letter or a general will from the father.

 

Under these cirumstances, theft / forgery (cheque is signed by her, filling the balance part is certainly not the forgery) is ruled out.

 

Also please keep in mind (may be against your wishes or your feeling), that in general  the prevalent customs is that  generally daughters (married) will not have a stake in her parental property (legally not sustainable but the custom is custom), so her brother annoyance is to certain extent justified. Settle it amicably, because if her brother was earning member during the period of cheque issue, then it may pose a serious problem for you.   You may have a defense, many more defense points will come, but case looks tight.

Sunil (Manager)     25 April 2012

I think that the learned lawyer who replies last, missed the facts of the case.

a) My wife never owed any money to her father.

b) She gave the signed cheques to her father, more than 15 years back, to clear her future dues like club membership and property maintenance fees.

c) The bank made the account dormant after many years of no activity.

d) Her brother claims that he gave a loan to her recently, and she gave him cheques recently. The cheques had been signed 15 years ago and he stole them recently, after she initiated the property case.

e) He cannot even prove one naya paisa in loan, either in cash or cheque.

f) We have filed a police complaint for theft and forgery of cheques.

R Trivedi (advocate.dma@gmail.com)     25 April 2012

In matters regarding courts, you should be willing to listen and appreciate the points which are contrary to your point of view, this will help you in preparing the better defense. 

 

Under S.138/139, in the first instances the complainant is not required to prove anything, that presumption of liability is available with him, it is upto accused to create doubts about liability and also attempt to win the case on various technicalities.

 

Your property case against him has no value for S.138 case, I do not know how have you replied to his legal notice, did you mention that these cheques were given to her father some fifteen years back etc... Please re read the same and think if it can cause any problem to you ? In hurry you might have goofed up in admitting too many things.

Sunil (Manager)     25 April 2012

All I know is that she replied truthfully.

 

Negotiable Instruments Act, 1881, Section 138, 139 - Dishonour of cheque - Presumption u/s 139 of the Act - In case amount is large and amount advanced is not repayable within few months, then failure to disclose the amount in Income-Tax return or Books of account of the complainant may be sufficient to rebut the presumption u/s 139 of the Act..........

Sunil (Manager)     25 April 2012

 

    Negotiable Instruments Act, 1881, Section 138, 139 - Dishonour of cheque - Presumption - Rebuttal - Standard of proof for rebuttal of presumption u/s 139 of the Act is that of preponderance of probabilities - If accused is able to raise a probable defence which creates doubts about the existence of a legally enforceable debt or liability, the.........

R Trivedi (advocate.dma@gmail.com)     25 April 2012

These all are ok and they are not law, these are observations under certain particular  case. Yes it is true accused has to probablise the matter with certain cogent evidence. Coming out of a criminal case is pain till end. And you need to rely on manu aspects. I just stated that the reasoning given by you may not get you out on face of it.

DEFENSE ADVOCATE.-firmaction@g (POWER OF DEFENSE IS IMMENSE )     26 April 2012

 

SC has held in many cases that the provisions of NI act are legal fiction and hence all of them have to be strictly followed . Most of the complainants  fail to follow many imp requirements and that is why it is always easy for any accused of cheque case to win.


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