Two cases u/s 138
PRAKASH TAMBE
(Querist) 05 December 2014
This query is : Resolved
complainant has filed a case from ahmedabad court for the cheque issued on mumbai branch using his real brother as applicant.the case status is unknown after accused had strongly denied all the charges in writing. there after no summons was issued to accused. He has asked for the certified copies from the court.
the complainant has filed another case u/s 138 in mumbai in his name.
in reality complainant is moneylender in cash with 60 % interest and he was working in the nationalised bank. he claims that he has paid money in cash.NO IT RETURNS HAVE BEEN FILED.
both the brothers are moneylenders and working in nationalisd bank.
how to put them behind the bar and punish them.
accused has not given any cheque to him.
Devajyoti Barman
(Expert) 06 December 2014
Only case lies if the dishonour cheque is one in number. However for separate cheques, separate cases can be filed.
In any event, the case can be filed only in the place where drawee bank( defaulter's bank) is situated.
P. Venu
(Expert) 06 December 2014
Who is the accused? Does he owe any lawful debt to the complainant? How the complainant (or his brother) came in possession of the accused.
Guest
(Expert) 06 December 2014
Mr. Prakash,
I wonder that you want to put money lender brothers behind the bar and punish them, but have not come up with the information for which specific criminal offence of the lenders against whom and how you are concerned with the case of the respondent. More so, when you have not made it clear about the background of loan and repayment and also the reason of bouncing of the cheques of the respondents, but you want the experts to guide you how to harm the opponents of the defaulter.
So, if you want advice on cheque bouncing case you should come forward with the brief history of taking loan, whom (lender or his brother) and for how much amount the accused gave receipt of money, how much already paid in cash or through cheques against the loan/ interest, how many cheques are still in the custody of the lender and for which amount, total how many checques with what total amount issued against capital part of loan or interest, reason for bouncing of cheques and also how you are related with the case.
It is not relevant to ask for the methods how to put them behind the bars and punish them without telling what specific offence they made against you or the compalinant.
You should know that the experts here tend to render voluntary free help just to solve the real personal problems of the querists, but not to assist them in taking their revenge from others.
R.K Nanda
(Expert) 06 December 2014
no more to add.
Rajendra K Goyal
(Expert) 06 December 2014
Author is required to reply the questions / provide vital information asked by the expert PS Dhingra sir.
malipeddi jaggarao
(Expert) 06 December 2014
In what way you are related to the query. Please reply to the points raised by expert Shri PS Dhingra.
ajay sethi
(Expert) 06 December 2014
answer queries raised by DHingraji
PRAKASH TAMBE
(Querist) 06 December 2014
thanks mr.P.VENU- THE ACCUSED DOES NOT OWE ANY LEGALLY ENFORCEABLE DEBT TO COMPLAINANT.
THE CHEQUE-BOOK WAS MISPLACED WITH SOME SIGNED CHEQUES. HE HAS INTIMATED IT TO THE BANK AND HAS ACKNOWLEDGED LETTER FROM THE BANK ABOUT MISPLACED CHEQUES BUT NOT SPECIFIC NUMBER CHEQUES. HE IS MISUSING THE CHEQUE AS HE HAS SOME CLOUT WITH POLICE/INCOMETAX/POLITICS
PRAKASH TAMBE
(Querist) 06 December 2014
THANKS AND REGARDS EXPERT PS DHINGRA JI.
EXTREMELY SORRY FOR THE REVENGEFUL LANGUAGE
I AM A CLOSE FRIEND OF ACCUSED,AND HE BELIVES IN ME TO HELP HIM.
HE HAS VERY LITTLE MONEY TO FIGHT THE CASE AND HENCE I AM HERE.
I HAVE GONE THROUGH ALL THE CERTIFIED COPIES OF CASE. THERE IS NO DEBT. IT WAS SOME RIVALRY IN BUSINESS.
THE COMPLAINANT HAS GOT CUSTODY OF SOME SIGNED CHEQUES. in the cross complainant HAS AGREED ABOUT DIFFERENCE BETWEEN SIGNATURE AND OTHER DETAILS WHICH IS HANDWRITTEN WITH DIFFERENT INK.
THERE IS NO LEGAL LOAN AT ALL. IT IS CASE FILED IN THE YEAR 2007 FOR CHEQUE AMOUNT OF INDIAN RUPEES EIGHT LACS.
THE ACCUSED HAS NOT GIVEN ANY REPLY TO THE NOTICE GIVEN BY COMPLAINANTS LAWYER.
THE ACCUSED HAS SHOWN me all the FILED IT RETURNS FROM THE YEAR 2004 TILL DATE,
THE COMPLAINAT HAS NOT FILED ANY IT RETURNS, he agreed it in the cross.
NO PAPERS OR DOCUMENTS TO SHOW THAT THERE IS A TRANSACTION OF CASH OR CHEQUE.
I AM NOT LAWYER BUT MY BASIC KNOWLEDGE SAYS THAT IT IS IMPORTANT TO KNOW THAT HOW THE COMPLAINANT GOT CUSTODY OF THE CHEQUE.
If can it be proved the age of the ink of the signature? as the entire cheque book was totally used up in the year march 2005. and the concerned cheque was deposited in the end of 2006. in that case the cheque becomes null and void.
it is not always correct that any case filed u/s 138 after accused has given the signed cheque after taking money in cash.
i have also read in some forum that the son of the accused was made accused after the death of the main accused and the case was filed as magistrate has not taken the cognizance of the case.
we do not know whether the complainant has any other cheques.
once again sorry for the language about putting sombody behind the bar. it is the job of court.
please believe that the details given here are unbiased and only facts.as i am helping the accused please do guide us to defend ourselves without wasting our hard earned money . we do not have any black money to roll in the market at 60% interest per annum without any moneylending license withut any cheque transaction.
please let me know whether in the year 2006-2007 any person having a four wheeler , two flats,two shops, two mobiles and does not file any IT RETURN and can he file the case under NIA for Rs. eight lacs.
is it allowed only in INDIA or other part of the world also.
if at all filing Complaint to IT COMMISSIONER willing fully is going to solve any purpose in india after seven or eight years for the poor friend.
please forgive me for my english language.
i hope i have put some important points for experts .
thanks and regards
malipeddi jaggarao
(Expert) 07 December 2014
Section 138 can be invoked only once the cheque is bounced if deposited by holder-in-due course. Though consideration is presumed in the transactions relating to negotiable instruments, the claimant should be bonafide holder. You have told that you have informed the bank about missing of cheque book but not with specific cheque numbers. This is not clear. The information at least might contain the cheque series. The Bank might have acknowledged this information and noted stop payment of these cheques. This is a good defence in your hands. You also say that the accused does not have any legally enforceable debt to the complainant. What does it mean? That means he has borrowed money, executed Promissory Note and limitation is expired? You are not giving clear picture of the case even now. In one place you say that complainants have filed the case in the name of their real brother. In another place you say they have lot of properties, working in the Bank, they are money lenders without licence and they have not filed any IT returns. How anybody can connect these brothers with complainant? If your friend has taken money from these bank employees by executing a promissory note, in whose favour the promissory note is executed? In their favour or their real brother favour? How these cheques have gone into the hands of these people? Good that you wish to help your friend. But come with full facts. As you are planning to bail out your friend, if they have really given money to him, whether the debt is legally enforceable or not, they also plan to recover the money somehow.
Apart from all above, the accused should get the bail first and fight the case on merits. This is inevitable.
If your counter accusations against the employed brothers have any concrete proof you can separately take up the matter by complaining to IT Department and also to the Bank Management wherein they work about their money-lending business. If such complaint is based on evidence, they take up the issue and these people will be in trouble.
Guest
(Expert) 07 December 2014
Mr. Prakash,
First things should always be made first. At first, your friend is required to defend his case to prove that no debt/ other dues remain against him. Only after that you or he should think about criminal conspiracy, cheating, etc., on the part of the complainant or to think about claiming damages, if any.
Wrong mix-up of defence and subsequent post trial action can some times prove harmful rather than being advantageous in any way.
PRAKASH TAMBE
(Querist) 07 December 2014
thanks and regards to malipeddi jaggarao .
lets me put cronological sequense of event.
26 th july 2005mumbai flood- during entire office of my friend was washed out. he has panchanama which says about office files and stationaries. it was later came to know that some signed cheques might be missing. hence in jan 2006 my friend wrote to the bank about misplace of cheques but in that letter to the bank, he had not given specific number of cheques which was misplaced.
out of these some cheques were happened to be in the custody of complainant. he had given one cheque to his brother in ahmedabad and he filed a case u/s 138 from ahmedabad. as the clearing bank was in mumbai the case could not move ahead.my friend will go and collect certified copies of the same. this is what i know about the case.the case is not transferred to mumbai. even if it gets transferred to mumbai it will be in the same court where
another case was launched by complainant in mumbai for rupees eight lacs using different number of cheque
after investigation we came to know about these two brothers. both of them were working in the bank with money lending as main business. as the lending business involves only cash there is hardly any proof with the accused.
these two brothers are the complainant and very sure about they being moneylenders without license.
there is no paper at all which can be said as promissory note, which is included in the list of documents.
Dear sir I am not going as per sentiments of anybody. whatever put in front of the court of law and as a human being to help justice to be done as per the court of law. i wont be knowing any time that in reality there was some transaction of money and anybody can go to any extent to recover the money. currently in this great forum whatever papers are saying i put forward to great people to discuss a case under section 138 and nothing beyond that.
thanks and regards
my understanding of legally enforceable debt means which is shown in the books of accounts, or it has to have at least some paper which can withstand in the court of law.i do understand that court only understand the legal debt and not to settle the accounts of anybody.
PRAKASH TAMBE
(Querist) 07 December 2014
thanks and regards to you sir PS Dhingra, dcgroup1962@gmail.
great saying -the defense first and for the same sake we are moving slowly defending my friends case for last seven years.
currently complainants lawyer was asking to my friends lawyer to settle the account My friend has decided to fight if required in Supreme Court.
Personally I am against illegal powers small or large and hence interested in this case. please no hard feelings.
thanks and regards once again
Guest
(Expert) 07 December 2014
Dear Prakash,
Your interest is quite relevant. So far as your statement is concerned, "I am against illegal powers small or large," I may inform you that I am staunch opponent of misuse of powers by anyone and firmly believe in justice to one and all. But, the facts are a must to be revealed in a proper manner.
So, there is no question of hard feeling. You asked a question without providing any background, as if you expected us to presume everything about the case without your telling and I reminded you about absence of background with the simple reason that implications of law are solely dependent upon characteristics, background and circumstances of the events, but not on assumptions or presumptions.
V R SHROFF
(Expert) 07 December 2014
good case for defence..
T. Kalaiselvan, Advocate
(Expert) 10 December 2014
Since the matter has already been defended in the court with the help of evidences in your possession, you may wait for the court to decide the case on merits.
Dr J C Vashista
(Expert) 16 December 2014
Nothing more to add, very well advised.
However, for the loss of cheque book what action was initiated by the accused?
Whether the so-called lost cheques were signed, filled in the name of complainant (money lander)? If yes,
Did the accused ask his banker to stop payment, get a FIR lodged, proceeded against the money lander (complainant herein)u/s 200/156 Cr PC when the accused received legal/demand notice for payment of cheque amount within 15 days or receipt,i.e., when the accused came to know about the person/receipant (money lander herein) of so-called lost cheque(s).
