Help me plzzzz! a person sued me on behalf of my two lost cheques...
DEgfdklkjljkljljkjkj
(Querist) 27 October 2013
This query is : Resolved
1. In 2012, I went to register my company ENOVATIZE as a Pvt. Ltd company.
2. Hiralal Patil came to guide me on company registration as he already running his newly registerd company ONS Refrigeration Systems and I believed him as a more generous man and knowledgeable guide for me. He told me to collect 9-10 lakh rupees myself, from my family and relatives for company registration and first equity investment.
3. I was totally unaware of his malicious pre-planned intention and collect 9 lakh rupees as loan from my relatives and hand it over to him, so that he could help me to registerd my company very soon.
4. Later he proposed me to give 5% of Equity Share of my company to his son Vrishabh Patil (Sunil), and for that he promissed to guide me to run my company in future as well.
5. Seeing my company's future valuation and prospective, I told him that I could only be agree if he liked to pay of 10 Lakh for 5% of Equity Share (which is 2 Lakh per percentage of Equity)
6. So he agreed and told me that he would pay that amount when company percentage will be decided in MOA and ROC copies.
7. Thus seeing his sincerity and seriousness about my company, I hand over 9 lakh rupees in cash for my company registration process and travel to my home (West Bengal). They also told me that they will inform me further.
8. When I was at home I asked them (Hiralal and his son) about company registration status.
9. They told me company registration is in progress and only Indian 30,000 Rupees expended so far. But company Equity Investment will cost in later phase. So, they have the rest amount of 8 Lakh 70 thousand rupees left.
10. So, I asked them to return the left amount(money) and deposit it to my state bank account; so that I could retun it to my relatives .
11. They refused, and told me that they only could sent that money through ICICI Bank transfer and for that I must have a ICICI Bank Account.
12. So, I quickly open a New ICICI Bank Account in Burdwan, West Bengal
13. After a few days they deposit 8 lakh rupees and told me to return the left amount (Rupess 70,000) in hand when I would return Delhi
14. Then after few day I asked them to send all registration papers to my email.
15. But after lot of delays they finally send those registration papers
16. I showed it to others and they told me that there is huge mistakes happened in those papers.
17. They registered my company address without my permission and willing, to thier temporary living residence address, from where he already registered and run his own company (ONS Refrigeration Systems)
18. They put Vrishabh Patil (Hiralal's Son) name as the first director of my own company, also without my permission and willing.
19. They divided company Equity Share and take 50% Share to Vrishabh Patil (Hiralal's Son), also without my permission and willing.
20. They also used a fake signature of me when I was not in Delhi, I was at my home
21. There is also two false signature of witness, though in that whole season I was at my home
22. After Seeing those signs and papers, I asked them to change those things but they also continue to delay and always ask me to return to Delhi
23. I realized that I did a terribly wrong mistake by trusting them as my well wishers and guidance. I realized there is nothing left in Delhi to do in future. I was shocked, hopeless and my entire career life was devastated.
24. After few months my family received Legal Notice, as Hiralal some how got my two pre-signed blank cheques 003304, 003305 which I canceled in early January of 2013, by submitting GD in local police station as lost cheques along with other lost cheques (As I could not find them in my chequebook listing) and my bank also canceled it so forth. I had also closed that account in respective of this lost cheuqes issue. That account was closed in 17 Jan, 2013
25. My family showed it to a Lawyer told him entire incident. He suugest my family not to worry about as it is a false claim and intended to pressurize me and my family.
26. I didn't loan from them even in my dreams. There was not any legal or writing terms for loan in between Hiralal and Me, nor there any unpaid amount mentioned in any legal or written terms in between Hiralal and Me. There was neither any statement in between Hiralal and Me that I hand him over those cheques for any purpose . Neither the date, amount and the payee name written by me. It was only two lost pre-signatured blank cheques as other cheuqes which I usually keep my self or in my belongings with.
27. Later in 9th October 2013, I got two letters with two summon on behalf on those two cheque. Summon also ask me to present before the Magistrate myself or by pleader and need serious help and guidance in that case, further.
28. If it is possible, that I could get penalty on whichever ever they did with me, my precious time then may be it could heal me somehow.
Advocate M.Bhadra
(Expert) 27 October 2013
Once case is filed u/sec,138 N.I.Act you have to face the trial by producing proper evidence.
A division bench of Kerala High Court in Lillykutty v. Lawrence held as follows: “…..there are instances where blank cheques are issued to the payee. If any amount is due to the payee from the drawer of the cheque and that amount is shown in the cheque which is admittedly signed by the drawer, the presumption could be drawn that the cheque has been validly issued. An implied consent can be presumed in such a situation. Once a cheque is drawn by a person on an account maintained by the bank and is returned with the endorsement “funds insufficient”, it amounts to dishonor within the meaning of S. 138 of NIA. S. 138 confirms the presumption provided under S. 118(a) and 118(g) of the Act….when the drawer has issued the cheque whether the entire body was written by the drawer written beyond the instructions of drawer, whether the amount is due or not, those and such matters are defenses which drawer has to raise and prove it. Therefore the mere fact that the payee’s name and the amount shown in the cheque are in different hand writing is not a reason for not honouring the cheque by the bank. Banks would normally see whether the instrument is that of the drawer and the cheque has been signed by the drawer himself. The burden is therefore entirely on the drawer of cheque to establish that the date, amount and the payee’s name are written by somebody else without the knowledge and consent of the drawer”.
Material Alteration is nowhere defined, but S. 87 talks about the effect of Material Alteration as “Any material alteration of Negotiable Instrument renders the same void as against anyone who is a party thereto at the time of making such alteration and does not consent thereto, unless it was made in order to carry out the common intention of the original parties;……..”
The principle laid down by section 87 is that any change in written instrument which causes it to speak a different language in legal effect from that which it originally spoke, namely, which changes the legal relation of the parties to it, is a material change, or technically, an alteration and such a change invalidates the instrument against the persons not consenting to the change. In other words an alteration of Negotiable Instrument is material if it might easily affect a party’s substantial rights whether such result actually follows or not.
The question as to whether the filling up of a blank cheque by the holder thereof after the same has been issued by the drawer would amount to ‘material alteration’ for the purpose of S. 87 of the act has been defined by various High Courts. A single judge of Kerala High Court in Capital Syndicate Vs. Jameela held that if a drawer issues a cheque leaf with his signature only and without the name of the payee and the specifying the amount and date, the filling up of the name of the payee and the specifying the amount and date would amount to material alteration u/s.87 of the act and therefore the criminal proceedings u/s. 138 of the act would not lie if such a cheque is dishonored. The court observed that “…..the subsequent insertion of the amount and the name of the payee without the consent of the drawer would amount to material alteration rendering the instrument void u/s. 87 of the Act”. In the said judgment the Kerala High Court cited with approval the decision of a division bench of the Kerala High Court in Bhaskaran Chandrasekharan v. Radhakrishanan in which the court had considered whether the putting of the date in an undated cheque subsequent to the issue of the same when there was no dispute regarding consideration, signature, amount and the name of the payee, would amount to material alteration rendering the instrument void u/s. 87 of the Act. the Court held that: “ “ When a cheque is issued for valid consideration, with no dispute regarding signature, amount and name, it cannot be said that putting a date on cheque by the payee who is the holder of the cheque in due course would amount to material alteration rendering the instrument void. In fact there is no material alteration. When a cheque is admittedly issued with blank date, and when the payee has no objection with regard to the name, amount and signature, it can be assumed that there is an implied consent for putting the date as and when required by the beneficiary at get it enchased”. The court further held that: “Alteration of the date in the cheque may be material alteration. Alteration may have the effect of lengthening the period of limitation or shortening it. So alteration of payee’s name is material which affects the character of the instrument, and so also the relationship of the parties. So also the alteration of signature as well as the amount. All this would amount to material alteration”.
adv. rajeev ( rajoo )
(Expert) 27 October 2013
Very big question. If the question is short it helps advise.
Devajyoti Barman
(Expert) 28 October 2013
Yes long query indeed.
It seems cheque bouncing case has been started against you for which you have no option but to defend it.
If you have good ground of cheating then you cna challenge the proceedings in the high court under Quashing.
Rajendra K Goyal
(Expert) 28 October 2013
Defend the case on merits, hire the services of some expert.
ajay sethi
(Expert) 28 October 2013
fight case on merits
Sudhir Kumar, Advocate
(Expert) 26 April 2014
repeated
http://www.lawyersclubindia.com/experts/A-Person-sued-me-twice-on-a-same-case-They-threaten-me-that-they-ruin-my-life-467441.asp#.U1twlqI1g48
