Harish Kumawat, 9669822728 (Sr Manager) 22 July 2012

Cheating

My sistor's son Nilesh residing in Banswara Rajsthan has taken a loan from one man called "X" of Rs 3.9 lacs and started a readymade shop on rental. Nilesh has given blank cheques to Mr X as lieu of Loan amount. After 3-4 month he felt loss in that shop. Mr X offered to handover shop with material (Calculating loan w.r.t. material in shop) and made a agreement letter on stamp. Mr Nilesh requested many time to handover his blank cheques back but he continue made reason as he is not finding in his home and will return soon. After a period of 8 months he (X)could not manage shop and as per him he got loss of Rs 9 lacs. He wanted to recover his loss from Nilesh and buildup pressure on Mr Nilesh to bear the loss of Rs 3 to 4 lacs. He made a plan as 20 days earlier he intentionally placed that blank cheques in bank to get them bounced. On the basis of that he sent a legal notice of cheque dishonour. Even after all type of counseling he is not being kind to Nilesh. Nilesh 29 years, 12th pass a married and innocent boy and was not in fault at all. He is a simple Sahara India/Insurance agent and just struggling in life. Nilesh is already having financial burdon of 4 lacs of market as due to business loss. Now his life is going to spoil and he will never come up. How a fraud person cheatting him? Please..please help...we are very nervous and very sad over this matter.. Mr X is a property broker with a good financial background.

Reply Follow

4 Replies

Adv Hemant Bhimrao Shirsale (Lawyer) 23 July 2012

Dear Kumawatji,

perused your whole case, I have sympathy with Mr. Nilesh. Though this case is prima-facie is of cheating it is very much difficult to prove, since the offence of section 138 of Negotiable Instrument Act read with section 420 of Indian Penal Code shall run together in criminal trial, in which cheque dishonour offence section 138 of N.I. Act, is very much technical as compare to the section 420 IPC offence.

Technicality of section 138 of offence could save mr.nilesh as to delay in sending notice, date mismatches, wrong notice sent, time lapsing, did not claim exact remedy under compliant in the court, failure to prove the legal liability to prove the dues amount etc. whilst section 420 is very much depend upon inducement to be caused to the person deceived so as to deliver any property to any person, to make, to alter or destroy in whole or part of valuable security or anything singed or sealed which could be coverted to valuable security.

if Mr. X is unable to prove the legal liability towards debt of mr. Nilesh or Advocate engaged by you will be able to prove that , cheques were issued towards the security of payment which could help mr. Nilesh, or technically speaking limitation if lapsed in depositing cheque(as of now 3 months validlity of cheque for payment- see RBI Notification), tampering in cheque, handwriting expert view, post dated cheques is proved (if Mr. Nilesh has its photo copies) and many more could be useful to mr. Nilesh's case.

one more thing of non registration of document claiminig the liability or witnesses conversent to Mr. X, signature of Mr. Nilesh taken fradulently, on blank paper etc. could be defence in your case. In criminal trial defence changes from case to case. so, get the advocate engaged more converenst in this case.

Regards,

Adv. Hemant Shirsale

Harish Kumawat, 9669822728 (Sr Manager) 23 July 2012

Thanks Mr Hemant for your valuable advice. He consulted lawyers and they told him weakness of case. Nilesh handedover blank cheques of without date.

SAINATH DEVALLA (LEGAL CONSULTANT) 07 August 2012

Defending a 138 NI Act case is very delicate,as the merits for the accused solely rely on the defects of the Notice and the complaint.A good,competent,experienced and a reliable lawyer can make the complainant sweat in the court hall and win the case.Everything depends on the loopholes.Right through the proceedings the accused knows that he has committed the offence either intentionally or not.The accused would have certainly given the cheque for a due consideration.