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Padam Singh   14 November 2015

I need expert advice plesase

Hi Friends,

I am facing a problem and want your advice.

Myself Padam Singh from Ludhiana. I gave Rs. 2 Lac to my friend as loan by 3 bank Cheques. He promised to pay me back with interest. He always made excuses for repayment. He theft my one blank cheque i don't know when he did this. He gave it to his friend residing in Amritsar. His friend presented cheque in my bank with my false signature and bank returned cheque without payment. Now his friend has send me Legal Notice of Rs 3 Lac. Now how should I come out of this trouble and get my money Back.

Please Friends Help me.

Padam Singh

9876412223



Learning

 9 Replies

SAINATH DEVALLA (LEGAL CONSULTANT)     14 November 2015

What were the remarks mentiioned by the bank for dishonouring the cheque?

Padam Singh   14 November 2015

Bank dishonoured Cheque by mentioning " Signature Mismatch".

SAINATH DEVALLA (LEGAL CONSULTANT)     14 November 2015

Cheque signature mismatch may lead to criminal proceedings: SC

 
The account holder must be given a notice and an opportunity to arrange the payments before initiation of criminal proceedings against him, says the apex court.
 

A person may face criminal proceedings if a cheque issued by him gets dishonoured on the ground that his signature does not match the specimen signature available with the bank, the Supreme Court has said.

A Bench of justices T.S. Thakur and Gyan Sudha Mishra set aside the verdict of Gujarat High Court which had held that criminal proceedings for dishonouring of cheque can be initiated only when the cheque is dishonoured because of lack of sufficient amount in the bank account and not in case where a cheque is returned due to mismatch of signature of account holder.

“Just as dishonour of a cheque on the ground that the account has been closed is a dishonour falling in the first contingency referred to in Section 138 of Negotiable Instrument Act, so also dishonour on the ground that the ’signatures do not match’ or that the ‘image is not found’, which too implies that the specimen signatures do not match the signatures on the cheque would constitute a dishonour within the meaning of Section 138 of the Act,” the bench said.

The apex court, however, said that in such cases of dishonouring of cheques, the account holder must be given a notice and an opportunity to arrange the payments before initiation of criminal proceedings against him.

“Dishonour on account of such changes that may occur in the course of ordinary business of a company, partnership or an individual may not constitute an offence by itself because such a dishonour in order to qualify for prosecution under Section 138 shall have to be preceded by a statutory notice where the drawer is called upon and has the opportunity to arrange the payment of the amount covered by the cheque,” it said.

Padam Singh   14 November 2015

Thanks for your time bro but I already Know that.

Please help me regarding how I prove his case wrong now. Should I file a FIR for stealing my Cheque. File a case against the person who send me Notice. What is the best Way. Please Help.


(Guest)

Why you are delaying matter? The moment you came to know cheque was stolen you should have done that. But one thing you would like to explain to every one. You must have issued cheques after that cheque number? How come you did not know a cheque is missing . Dont you fill out cheque log sheet given in each cheque book as to dateamount and party to whom issued. Banking should be done with responsibility. Has that man access to your house/office frequently or casually,  or is it that man stole it and gave to the man now claiming .Police only can resolve these issues

Yes immediately file FIR. Does that man know you? Did you  ever do any transaction with him? How can you issue a cheque unless you had any transactions with him.

But delay may be adverse to you. It is lesson to all. If you give loan to even your brother just reduce it into writing even on a plain paper that why it is being given and when expected to be returned with interest or no interest. Both should sign preferably in presence of a witness. Date should be there. It is 10 minute job.

Even ask your lawyers to issue you contract note with fee settled and amount received. Now a days many lawyers take money and then dont  attend case. They deny having received payment.

Dont deal with such people who are themselves doing wrong acts .How they will take care of law and your interest?

Paisa kisi ka riste daar nahi hota. No dosti in money matters, please.

Augustine Chatterjee,New Delhi (Advocate & Solicitor at Law)     15 November 2015

Absolutely correct advise given above

SAINATH DEVALLA (LEGAL CONSULTANT)     15 November 2015

Dear querist we are not bro's but senior advocates.Supporting the views and suggestions given by Dr.Gupta,I would like to ask the querist how he is going to lodge a police complaint at this stage after the cheque got dishonoured? 

Right now U are bound by sectiion 138 NI Act, and if at all thereare any merits from UR side fight the case with a good competent lawyer who is well versed in NI Act.How can U file a case against a borrower? Once UR cheque is in his hands U are very much a debtor to him.


(Guest)

Criminal and civil jurisdiction are separate. If cheque is stolen you have all the right to file FIR. The evidence that cheque is indeed stolen is presentation of cheque in bank . FIR is given only when a person comes to know about crime. These are counter cases . Punishments are different . Only one case will succeed. Other will automatically fail. What the expert is suggesting is that a thief enters your house and tries to steal, then goes to court and files a suit he could not find any valuables in the house. Issue of any cheque needs to have legally valid transaction underlying it and against a legally valid contract. A cheque issued by force can't be enforced under NI act. The party who claims relief under 138 has to show why cheque was issued to it . Law is not one sided and blind . Of course you should file FIR and you will also have to face legal case under 138 filed by the thief till he is declared thief I hope logic is valid sir


(Guest)

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