Chethana (Accountant) 07 September 2015

Cheque from joint account

Respected sir in this case, 2 Brothers having joint account and both of them are IT Assesse and financially sound. Under the instructions of elder brother, younger brother issues a cheque to Family friend from their joint account. The cheque signed by younger brother.

Repeated follow-up, family frined issues return cheque in the name of elder brother to clear liability. Cheque bounces account closed. Elder brother files NI 138 case. Accused takes stand that case is illegal as he has not taken money from eldger brother and no documentary proof. As far bounce cheque, accused states itis stolen, misused. To prove liability, complainants Younger brother as a witness said he has issued the cheque at the instructions of his elder brother from his joint account and no liability between himself and accused.
Seeking suggestion how case could move forward.

Reply Follow

6 Replies

Advocate Rohit (Advocate) 07 September 2015

is the cheque amount is same what was gven tothe friend or is there any interest portion in it?

Why did the friend accepted the money from the younger brother?

Why did he issued the cheque in the name of elder brother?

did the friend lodged any police complaint about missing cheque? Did the friend issued stop payment order with his bank about missing cheque?

Hope this question would be enough for your Advocate to block the Accused.

Regards

Adv. Rohit M. Dalmia

9324538481

Mumbai

vivek malhotra (Advocate) 07 September 2015

138 of N.I. Act are very ticklish matters. As suggested by my Ld.frd Sh.Rohit the questions are very perfect. But to safe guard your money you must file a civil suit U/o 37 CPC on the basis of the cheque in question because of the reasons if judge came into the conclusion that the cheque issued is without any legally recoverable liability so you may be trouble. For any assistance you may contact.

Regards

Vivek Malhotra

Advocate, 9716670701

jyotirmaya behera (advocate) 07 September 2015

1. Cheque no. you can track the details. 2. There is any liability you should proof ( yes or no) 3. Any witness at the time received cheque from him? 4. If there any communication ( documentary) 5. Reply to the legal notice. NI Act is only for punishment. That does not recovery money. You should file suit for recovery of money

Chethana (Accountant) 08 September 2015

Thanks sirs. The issue is, Under the Complainant (Elder brother) instruction only his brother issued cheque to family friend (Authorised orally) and this statement is supported by younger brother who deposed same in the witness box. no other documents exists to prove transaction. And yes. amount received by complaiant includs interest.

advocatepassy@gmail.com 971794 (Advocate) 08 September 2015

Question raised by Advocate Rohit are valid. When a cheque is issued it is presumed that, it is for consideration. But there is a time limit of one month from dishonouring of the cheque to send legal notice under Section 138 of NI Act. Thenoticeperiod is for 15 days and after that the case has give filled within one month under NA Act. Otherwise the recourse is through CPC section 37.