Sec.138 ni--forgery of p.note.
Advocate Ravinder
(Querist) 28 August 2017
This query is : Resolved
To
Learned Advocates,
My client had taken hand loan of Rs. 3.00 lakhs and had issued a signed blank cheque in discharge of loan liability. My client had re-paid the loan. But the creditor said that the cheque has been misplaced and will hand over shortly. But surprisingly, he filed cheque bounce case under Sec. 138 of NI Act by filling up the cheque.
The creditor had fraudulently created a fake promissory note of Rs.3.00 lakhs by forgering my client signature. I challenged the signature and it was sent to FSL. It is proved that the signature was forged by FSL.
My questions are:
1. Whether the cheque bounce case will be dismissed basing on the FSL report.
2. Whether I have to file separate cheating and forgery case against the Complainant. Or can I file Cheating and forgery case in the same 138 case.
3. Can I file civil damages case, since my client has to incur about Rs.30,000/- for Advocate and Misc. Expenses, mental tension, waste of time.
--P.Ravinder, Advocate, Hyderabad.
dr g balakrishnan
(Expert) 29 August 2017
yea you can , if what you say is absolutely right.
dr g balakrishnan
(Expert) 29 August 2017
for filing you need to file FIR in the first three positions or move private complaints before relevant jurisdictional MAGISTRATES. Agn as far as damages you need to file cases under law of torts civil wrongs in civil; court or if the high court enjoys original jurisdiction in that location, you can move before the relevant high court pls.
dr g balakrishnan
(Expert) 29 August 2017
1. you have to prove to the magistrate handling yr cheque bounce case - that as per FSL the signature on the cheque is forged, then the magistrate can dismiss the complaint.
dr g balakrishnan
(Expert) 29 August 2017
2. once your cheque bouncing case is dismissed then you can move forgery through the process of FIR or a private complaint.
dr g balakrishnan
(Expert) 29 August 2017
3, is a tort matter, that you can move by a civil ct by filing your suit for damages by rightly adducing how you suffered , if admitted and orders is given to get liquidated damages, you can claim damages .
Yudhish Padman S
(Expert) 29 August 2017
Dear Adv. P.Ravinder,
Answer to Q1: The complainant would have relied upon the Promissory Note to prove that the accused had received from the complainant, a sum of Rs.3,00,000/-. But this is not necessary since, the presumption is already in favour of the complainant vide Sec.139 of the Negotiable Instruments Act, 1881. Hence, the FSL report alone would not be sufficient to get the case dismissed. You still have a long way to go.
Answer to Q2: You have to file a separate case for forgery. As far as cheating is concerned, there is no prima facie case, in my opinion.
Answer to Q3: Since the complainant has followed due process of law, you cannot file separate suit for damages at this point of time. But if the present case gets dismissed due to foul play on the part of the complainant, then you may file a separate suit for damages in addition to appropriate criminal proceedings.
Regards,
yudhishpadman@gmail.com, Advocate, Chennai.
Rajendra K Goyal
(Expert) 29 August 2017
Agree with the advice from expert Yudhish Padman S.
Dr J C Vashista
(Expert) 30 August 2017
I agree with expert Mr. S. Yudhish Padman and Mr. Rajendra K Goyal qua question No 1 to a limited extent; if the complainant is relying upon so-called promissory note, which has been proved as forged. In this regards a separate cause of action has arose against the complainant since s/he has committed fraud upon the accused (drawer of promissory note) as well as filing a document knowingly before the Court (u/s 195/340 Cr PC) and s/he has made him/herself liable to be punished, which is besides an offence u/s 499 & 500 IPC is also made out as well as a civil tort also existed.
In case your client can rebut the presumption u/s 118 N I Act, 1881 proving no legally enforceable liability through the mode of repayment, the case u/s 138 r/w 139 (presumption favouring complainant) N I Act, 1881 shall be dismissed.
Dr J C Vashista
(Expert) 30 August 2017
As advised by expert Mr. S Yudhish Padman and Mr. Rajendra K Goyal, I fully agree with them with respect to question No 2, you cannot proceed in the existing case u/s 138 of The Negotiable Instruments Act, 1881 but you will have to file a separate/fresh complaint u/s 200 r/w Section 156/195/340 Cr PC for taking cognizance, summoning, try and punish the accused (complaint in the case u/s 138 N I Act, 1881).
I respectfully differ with the opinion of expert Mr. S. Yudhish Padman since the complainant has created a fresh cause of action by committing cheating and forgery not only on the accused (in original existing case u/s 138 NI Act, 1881) but also the Court/ law knowing filing false evidence/document of Promissory Note.
Dr J C Vashista
(Expert) 30 August 2017
Answer to your third question is affirmative but the amount of compensation should have been multiplied (not added) so that there is sufficient cushion for the court to pass a decree as you desire.
Besides this the complainant can be prosecuted u/s 499 & 500 IPC for the offences as stated hereinabove.
The complainant (u/s 138 N I Act, 1881) has provided a great opportunity to you, which you must encash by proceeding against him, you have a win-win situation.
Best of luck.
krishna mohan
(Expert) 30 August 2017
Well advised by Dr.J.C.Vashistaji. I am of the view when your client has repaid the loan the right over the cheque/negotiable instrument is lost. If the loan repayment is proved including interest there of as agreed in writing the rest of the action appears to be in your client's favour and as advised by experts. But a fact unable to understand is when client repaid whole of the amount, he should have insisted for a certificate for full and final settlement of the loan leave alone not receiving the blank cheque back.
Advocate Ravinder
(Querist) 31 August 2017
To
Krishna Mohan,
Sir, As I had already told you that my client did not ask for receipt or some undertaking that the amount was repaid due to trust. The signature on the cheque is real one, but the signature on the Promissory note is forged one. My question is that whether basing on the forged Pronote, can we win the 138 case or not.
