Cheque bounce case
Y R DINAKAR
(Querist) 25 April 2014
This query is : Resolved
Dear Sir,
Due to family disputes my self and my parents are staying away from by brother .In order to harase us, initially my brother has filed one chq bounce case ( my old account unsigned cheque leaf was with him ) for Rs.2500000/- in his friends name,and I have received cheque bounce notice from my brothers friend.
After receiving notice I had approached my lawyer and he had prepared reply for the notice. In the reply my lawyer had pointed out that my client (i.e me) is not aware of your client and due to family dispure between my client his brother thye could have forged the cheque and send a chque bounce notice against my client" and sent the reply to openent lawyer.
Now my brother has sent defemation notice against me claiming that me & my lawyer had made wrong full alegations against my brother in the reply which we had made against which I should pay him Rs.42 L as damages with in 7 days and Rs.1500 towards lawyers fee.
Now what are options available for me to proced against my brother legally.
1. Should I reply to the defemation notice which I had received or
2. Should I approach police.
Surrender K Singal
(Expert) 26 April 2014
Basis / Liabitity for which the sain UNSIGNED cheque is said to have been misused by Payee is also a necessary condition for 138 of N I Act. Forging of your signatures on the cheque is also to be taken care , may be, by FIR with Police while challenging the cheque signatures in the case, as & when that is initiated against you ?
Defamation is separate matter which should not take away your attention from the cheque case ?
ROHIT SHARMA
(Expert) 26 April 2014
Dear Mr. Y. R. Dinakar,
1. The holder in due course of such bounced negotiable instrument has not as yet replied to the notice which was served upon him by your lawyer. It implies that he may have not as yet resorted to take legal action as u/s 138 of N.I. 1881.
2. Instead of that, upon receipt of your advocate's reply, such due holder of such bounced instrument (who must have come into holding of such instrument as it was provided to him by your brother) must have informed your brother of the indictment of charges of forgery as that were contented in the reply given by your advocate to such holder in due course and that such a holder in due course can then in that case may contemplate to accuse your brother of cheating.
3. As and when such matter is brought before the court u/s 138 N.I. 1881 then you too will have the liberty to rebut the preemption of the court u/s 139 N.I.Act, 1881, and challenge the legality of the signature of the drawer (i.e. your) as appearing on such instrument by having the same being sent for Forensic Test.
4. Your brother's legal notice served on you indicting you of the charges of 'Defamation' and seeking damages to the tune of 42 lacs is to scare you off and preempt you from filing a criminal case against him or the holder in due course of such bounced instrument.
5. You must have received the xerox copy of such bounced instrument. This would serve as a vital evidence to sustain your assertion that such instrument was not singed by you.
6. Now the options that are available for you to lawfully and legally proceed against your brother are :
(a) Give a befitting reply to the defemation notice received by you. In that you can, if your sure that you have never singed such instrument, then make him aware that the burden of proving that the signature on such instrument pertaining to your bank account is yours - would lie upon him.
(b) You should consider to indict your brother for his act of commission of having committed - a criminal breach of trust, forgery of valuable security, forgery for cheating, forgery for harming your reputation, using as genuine a forged instrument, having in possession of such instrument which can be considered as of to be of valuable security which was forged and such offenses are punishable u/s 465, 467, 468, 469, 471, 474 & 406 of I.p.C.
7. You may either proceed to file a written complaint with the police or if the police is not extending any positive help then you can take the resort of filing such one written complaint u/s 190 Cr.P.C. r/w s. 465, 467, 468, 469, 471, 474 & 406 of I.P.C. before the court of J.M.F.C.
8. If need be and if you intend to have much elaborate discussion of such issues before you take any further positive legal action to safeguard your integrity, then you may consider it to be fruitful to talk to this lawyer with an understanding of paying post paid phone consultation charges which would be negotiable.
9. You can e-mail to me of your such need.
Adv. Rohit Sharma.
(B.Sc. L.L.B. L.L.M.)
(M) : 09824047971.
E-Mail : lawgate1349@gmail.com.
ABDUL RAZIQUE
(Expert) 26 April 2014
nothing be left to say after Rohit Ji.
Surrender K Singal
(Expert) 27 April 2014
Expert Sharma has elaborately helped you on most aspects
T. Kalaiselvan, Advocate
(Expert) 29 April 2014
There is no material with your brother to issue a defamation notice to you on the basis of the contents of your reply notice to lawyer who issued a demand notice on your cheque being bounced for the reasons stated there in. This is in any case will not defame your brother because you have not directly alleged him moreover it is matter of sub-judice hence the fact can be ascertained only after the outcome of the case before the court, give a proper reply to your brother's legal notice while following the false cheque bounce case also properly.
