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raj malhotra (M.D)     14 February 2012

Stop payment and wrong signature

respected members...

                                           i just have this query...if someone owes me a payment and issues me cheque which r filled in front of me completely and the person willfully does wrong signature on those cheques....and then later he stops payment of those cheques...wht will be the course of action in that case...means how to prove that cheque was issued by that person to me....



Learning

 18 Replies

DEFENSE ADVOCATE.-firmaction@g (POWER OF DEFENSE IS IMMENSE )     14 February 2012

You can file case but criminal procedure is short procedure and escape routes are more.

R Trivedi (advocate.dma@gmail.com)     17 February 2012

if His Bank has marked " Signature Mismatch" also, then court may not take cognizance under S.138. It is basically cheating and false under S.420. You may have to prove that it is his hand writing and he fraudulently missigned the same. Try NI138, go to police, if plice refuses go to court under S.156.

raj malhotra (M.D)     17 February 2012

sir ...

             if cheques bounce back with only reason as "stop payment by drawer"....does this means that no question can be arised on the authenticity of signatures????see issuer of the cheque can say tht those cheques r stolen or lost but wht if i clear those cheques thru my bank account and they dont take any action against it as if other way if they were really lost or stolen its their duty to check and take action against me...right???actually cheques were issued to me by them and i got it filled completely in front of me but im shocked by the stop payment they gave against cheques.

R Trivedi (advocate.dma@gmail.com)     18 February 2012

It depends on the observation of clearing house clerk, if at the first glance he sees that amount insufficient or stopped payment, he marks it and do not bother for signature part. Rest assured normally cheques do not get cleared if signatures are mismatched.

 

If it is mentioned that signature not matching, then court may or may not take the cognizance (ideally they should not), but if it is mentioned "Stopped Payment" then court has to take the cognizance, now it is upto accused to defend himslef that the signature on the cheque was not his or complainant to prove that signature was of accused. This can only be done by summoning the Bank person with authenticated record of the signature. 

 

Now since you do not know that the signature on the cheque was not his, you proceed with the case, let him give his defense.


(Guest)

Rightly advised by R.Trivedi.Bank will not make payment since signature difference.

DEFENSE ADVOCATE.-firmaction@g (POWER OF DEFENSE IS IMMENSE )     19 February 2012

I give a real court room scene for cross of a bank person.

 

CROSS OF A BANK PERSON FOR CHEQUE.


1) When you are working in this branch of the bank== mostly the reply will be after the date of the cheque.And even in this branch the person must have been working in some different section.

2) Account of the accused was opened before you.= most probable reply will be NO.

3) Whether the accused signed the suit cheque before you= the answer will be NO.

4) Do know that the suit cheque when it was blank was issued to the accused from your bank. =the answer will be NO.

If the answer is yes – tell how you personally know that this cheque was issued to the accused and the answer will be NO.

5) So you do not have any personal knowledge that the cheque was issued to the accused from your bank and it is his signature on the suit cheque.
The answer will have to be NO. If yes confront him earlier replies and he / she will have to say NO.

raj malhotra (M.D)     19 February 2012

but wht if i show a leagl liability upon the accused party to pay me the money and if i also present witness in front of whom the accused issued me cheques....can i get justice????

DEFENSE ADVOCATE.-firmaction@g (POWER OF DEFENSE IS IMMENSE )     19 February 2012

Please read the cross I have given above and than reply. If the bank persons says it is not the cheque from the same bank.

Same questions will be asked to your witness whether he has seen the cheque , name of the bank , ac no, cheque no. If your witness says yes questions about his memory will be asked by just producing different cheqes and tell by memory.

 

POWER OF DEFENSE IS UNLIMITED.

R Trivedi (advocate.dma@gmail.com)     19 February 2012

JSDN.. It is great that you cover lot of aspects. But please note that the congnizance is taken based on..

 

1. dishonor Slip.

2. Original Cheque.

3. Notice/complaint limitation Period.

(They are sufficient evidence)

And once the accused admits the signature, the preseumption is available to complainant. It is not necessary to get the Bank staff on cross examination table for the speicifed purpose. The prosecution will ensure that Bank staff says yes to Account of accused and his signatre on record. It is not necessary that the cheque is filled up and signed in front of Bank Staff.

DEFENSE ADVOCATE.-firmaction@g (POWER OF DEFENSE IS IMMENSE )     20 February 2012

You are contradicting your self.

You presume that accused will say yes to his signature , no advocate will suggest him to do so.

And regarding bank staff now you can comment since I have given questions.

During cross do advocate can advice the witness what to answer.

Witness prepared in advance always fail.

CROSS IS GREAT SCIENCE AND IT COMES BY PRACTICE. BY SIMPLE TECHNIQUES OF CROSS YOU CAN COMPELL ANY WITNESS TO CONTRADICT HIM / HER.

R Trivedi (advocate.dma@gmail.com)     20 February 2012

No I am not contradicting myself, but please note that blatant lies on the part of accused does not help, for example.

On Signature 

1. If the accused denies his signature, then simple thing complainant will do is to get the accused Bank person and get the same verified. So accused cannot aford to lie about his signature if they are his.

2. As per Banking Act, it is not necessary to cross the Bank staff on routine matter. Asking Bank staff on following questions will not help accused irrespective of Bank answers..

1. Does the accused have account in your Bank ? Ans: Yes.

2. Did the bank issue this cheque to accused ? Ans: Yes, Don't no, (NO mostly will not come)

3. Did the accused sign cheque in your presence ? (Irrelevant question)

4. Did the accused fill up the cheque infront of you ? (Irrelevant Question)

Following questions will help for the answer specified..

1. Is the signature on cheque is that of accused ? Ans: No.

2. Is the cheque issued by you to the accused ? Ans: No.

3. Is the handwriting on the cheque and that on the deposit slip same? Ans Yes / may be.

4. When was the Stop Payment instruction given to the Bank ? Ans Dtd..

The point is Bank can be questioned to prove certain probability aspect based on mistakes made by the complainant. Many a times I have seen, that complainant states that the cheque was received by him in the afternoon of 12th, but the cheque was presented for clearing on the 12 th itself. This can be deduced that cheque could not have been issued on 12th Afternoon.   Moreover it is the tendency of the holder of the Blank cheque to fill up both the cheques and deposit slip at the same time and subsequently complainant states that the cheque was not received blank by him, in this case also cross of the Bank with relevant record will catch the complainant on the wrong footing.

 

I hope I have made myself clear. Whatever be the legal authorities experience, I am of the opinion that blatant lies will not help anyone in such regulatory cases.

 

 

 

 

 

DEFENSE ADVOCATE.-firmaction@g (POWER OF DEFENSE IS IMMENSE )     20 February 2012

Your reply does not show that you have any actual experience of sequence of cross in criminal cases.

R Trivedi (advocate.dma@gmail.com)     20 February 2012

JSDN, looking at your various posts, I came to the conclusion that you strongly feel that the law and judiciary is stupid and any intelligent and aggressive lawyer can bring out the accused successfully by asking irrelevant questions. Please understand the value of cross examination, but request please do not spread the misconception that by denying and by being over aggressive one can win the cases.  It is useless to suggest the Bank staff" if cheque was signed or filled up in his presence ? Most of the time it is useless to even  deny the signature. The above questions are written in simple English to indicate futility of asking irrelevant questions. 

 

Cases can be won on merit and on technical aspects, but they can never be won regularly on lies and false denials.

 

I have nothing personal against you but ethics demand that wherever possible we must promote truthfulness, I have seen many lawyers feel that they are duty bound to lie to save or defend their clients, which is false. If only falsehood or aggression can win, then we do not need judges or law ? We need only aggressive good in language lawyers.

DEFENSE ADVOCATE.-firmaction@g (POWER OF DEFENSE IS IMMENSE )     20 February 2012

have you conducted any cheque case , I do it regularly and my inputs are from real experoemce.


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