Sec 406,420, 138 of ipc and role of police
Kishor
(Querist) 22 March 2014
This query is : Resolved
Dear Sir,
Two years back i took amount of rs 3.5 lacs from one of my friends for doing business and decided to pay him share of profit as consideration instead of any interest for which he gets agreed, in start as i started refunding the same to him and refunded around 1 lacs in first two months but because of some business problem i need to disconnect my business and i was just bank krupt at that time i had informed him that i will pay him whole sum with appropriate consideration.
As i was in depression and in big loss, fortunetly i got a good job opportunity from abrod with good salary and i accepted that and went there.
within next three months i had paid more 50000 to him.
But later on he informed me that he had diverted the whole amount which i had paid to me in interest. when i was out of idia he forcefully taken something in writing from my perents and as my perents were not so much litrate they gave the same without informing me with a good concent.
since earlier i was in business i need to issue cheques, i use to keep signed and crossed, and as the investor use to come to my office he took some cheques which i unable to come to know. when i come to know that the cheques are misplaced i had put stop payment requests with bank but didnt file any complaint with police.
Now he is trying to take the advantage of the cheque.
He has now put around 600000 amount on the cheque and deposited in bank but due to stop payment it get returned but instade of the same he deposied the cheques thries.
when he had deposied the first time i had filed a compliant with police stating all the above facts and they called the other parties.
I dont want any quarrel and litigation and ready to pay the amount also as i had taken it but appropriate amount.
My Queries are .
1. Can he file complaint against me under sec 138, 420 ??
2. What is the procedure with police station and courts ??
3. What are the leagal remedies available to me ??
4. Can police file complaint like "Cross Complaint"
5. Are police going to arrest me, i am afriad becouse he have a good friends with police and due to loss in business i had lost my goodwill.
Please Assist
mr. snehal
(Expert) 22 March 2014
First of all kishor as soon as you found that cheques are lost or misplaced you should have filed missing complaint with police station but nevertheless now if he has miused the cheques and tried to honour them and they are dishonoured he has to send you notice u/s 138 of Negotiable Instrument Act within 1 month from the date of return memo, then after he sends the notice on correct address of yours and you did not reply or repay the cheque amount within 15 days from receipt of notice he can file complaint u/s 138 within next 1 month starting from end of 15 days. These are mandatory periods. Further he can file cheque bounce complaint even though you are not liable to pay him cheque amount but once the case progresses he has to prove that cheque are issued for legal debt andin your case you are not liable to pay him 6 lakhs as per your version of facts. So need not worry. But yes you will receive a summons and you need to attend the case yes ofcourse after you receive the summons.
For filing complaint u/2 420 there has to be mens rea and motive and intention to cheat right from the date of handing over the cheque but inyour case he has to prove that and then only police can file complaint against you or else he has to approach criminal court under private complaint.
So it is advised that first file cheque missing complaint now as you have come to know that they are being misused. Further if the cheques are non micr then they cannot be accepted for clearing and it will show that they are obtained by your friend long back. Please see if you have obtained new cheque book after the old cheques.
Further if you had balance inyour account to honour the cheque and then also you had stopped the payment of cheque then u need not worry.
Rajendra K Goyal
(Expert) 22 March 2014
1. Yes he can file.
2.Academic portion of query.
3. You should defend yourself on merits of the case.
4. Police can.
5. If case is filed, proceed / try for anticipatory bail.
Nadeem Qureshi
(Expert) 22 March 2014
Dear Querist
you case is only comes under NI Act or civil case for recovery, no police role will be there until and unless he give them bribe, after that the police can file a case against you under section 406 of IPC and this case will not be strong and the HC quash the same with the direction that he filed the case under section 138 of NI Act or file a civil suit for recovery.
feel free to calk
