Hello sir , the above matter needs both criminal as well as civil liability .. Your uncle has dishonestly from the very beginning have deceived you , and for causing wrongful loss transfered the property to his daughter .. It is advisable to file a criminal complaint of cheating and criminla breach of trust under section 406 and 420 IPC .. You can contact me in person for drafting of criminal complaint ..
Criminal complaint for cheating money and breach of trust
In 2014 my uncle asked loan of 10 Lacs and promised that "when I ask the loan amount, if they don't have money to repay, they will sell their assets and pay my loan" Pronote for 10 Lacs was executed in 50rs stamp paper along with 2 green papers, in which these wordings are included. Uncle took 10 Lacs loan from bank against his house, but never paid me. So I pressurised them to sell asset and pay my loan, for which uncle settled his properties to daughter in Dec2016, including the house under bank loan. Then I filed money recovery suit, for which Uncle filed insolvency stating that he is unable to pay his debts and listed me as 1st creditor out of 4 creditors. On 26-Oct-17, daughter sold the land that she received as settlement from his father and gave the cash to him. 07-Apr-14 Pronote for 10 Lacs executed in 50rs stamp paper 10-Aug-16 uncle took 10 Lacs Bank loan against his house 12-Dec-16 uncle settled 2 of his 3 properties to daughter 04-Jan-17 uncle received my lawyer notice 15-Mar-17 uncle settled his 3rd property to daughter 03-Apr-17 Money recovery suit filed 28-Apr-17 case numbered 27-Jun-17 uncle filed for insolvency 26-Oct-17 daughter sold single property 19-Jan-18 declaration suit returned by Judge I filed declaration suit to declare the Settlement to daughter as Null and Void. Judge returned saying Survey numbers of uncle assets are not included in the 50rs stamp paper document, so uncle has rights to sell the asset. Give me citation I will number the case. 1) please give me citation, person borrows money via pronote, then settle the properties and file for insolvency. I gave criminal complaint in police station who are refusing to file FIR citing the pending civil case for the same cause of action and not mentioning the Survey numbers of uncle assets in the 50rs stamp paper document. 2) Please give me citation for simultaneous proceedings of a civil and a criminal case, particularly for pronote cheating. 3) what sections are made out? like 420 406 Uncle is a wilfull defaulter, he availed 10 Lacs Bank loan against his house, but he never paid me inspite of repeated demands. He clearly violated the loan promise of selling his property to repay my loan if he does not have money to repay the loan. 4) Uncle gave plain asset promise, borrowed money then his subsequent conduct of settlement of ALL his assets to daughter to avoid court attachments and then filing for insolvency substantiates his asset promise as false representation and dishonest intention(420) WHILE GETTING LOAN from me??? 5) whether this criminal case is maintanable for 420 and 406 based on the above facts? The essential ingredients to attract Section 420 & 406 IPC are made out? 6) daughter sold the land, so daughter can be prosecuted for acting in conspiracy with father? 7) if possible email me sample private criminal complaint to
Asked 6 years ago in Criminal Law
Religion: Hindu
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7 Answers
The remedy available under S.138 and criminal offence under S.420,422 and 417 are distinct and separate.
In a matter decided during the course of revision, the HC decided that if it is apparent that an insolvency petition has been filed to avoid a liability under S.138, then the revision is not maintainable.
However, the properties bequeathed to his daughter much before notice shall not be a ground to set aside the sale.
Your lawyer will draft private complaint
2) both civil and criminal cases can proceed simultaneously
3) judgments depend upon facts of each case
4) case can be filed against uncle under section 406 , 420 of IPC
5) essential ingredients are made out fir filing case
P. Swaroopa Rani Vs. M. Hari Narayana alias Hari Babu, AIR 2008 SC 1884, Supreme Court has held as under :-
"t is, however, well settled that in a given case, civil proceedings and criminal proceedings can proceed simultaneously. Whether civil proceedings or criminal proceedings shall be stayed depends upon the fact and circumstances of each case......
Filing of an independent criminal proceeding, although initiated in terms of some observations made by the civil court, is not barred under any statute......It goes without saying that the respondent shall be at liberty to take recourse to such a remedy which is available to him in law. We have interfered with the impugned order only because in law simultaneous proceedings of a civil and a criminal case is permissible."
There is no case made out for attaching your uncle's property for return of loan amount.
The pronote is only loan agreement and it doesn't contain any clause for attachment of his properties if he fails to repay the loan amount.
You can initiate steps for recovery of loan as per law and cannot demand his properties in return.
No claim in this regard shall be maintainable.
You cannot lodge criminal complaint against your uncle or his daughter and section 420 IPC is also not maintainable.
You can initiate legal steps for recovery of loan by due process of law.
Thanks all for your replies. Regarding the criminal complaint in police station, Public prosecutor has given opinion that section 420(cheating) and 406(criminal breach of trust) of IPC are made out. Shortly FIR will be filed. I and defendants live 800kms away in different districts Defendants executed one pronote at my city and three pro-notes at their home city. My old lawyer asked me file all 4 pronotes in my city. I changed the lawyer, new lawyer suggested me NOT to lie in witness box while criminal case is proceeding against defendants. Defendants may file perjury as revenge. He suggested to file amendment petition, to alter the place of execution of promissory note. Para3 of Plaint reads: ------------------------ The Plaintiff respectfully submits that the defendant borrowed an amount of Rs.x,xx,000/= on 25.3.2015 and executed a pro-note on the same date at MY house at Saidapet in the presence of his sons as witness............ Amendment seeked: ------------------------- The Plaintiff respectfully submits that the defendant borrowed an amount of Rs.x,xx,000/= on 25.3.2015 and executed a pro-note on the same date at DEFENDANT house in the presence of his sons as witness.......... 1) amendment will deprive the Court's jurisdiction. So court will dismiss the amendment petition and return the 3 plaints for its presentation to proper Court in defendant city? 2) amendment alters the cause of action, so court will dismiss the plaint itself? if the plaint is rejected then, it will amount to dismissal of the suit amounting to decree and the plaintiff will face hardship as he has to go in the appeal, he will not get any return of the Court fees? 3) Instead of filing amendment petition Under Order VI Rule 17, can I file petition under order7 rule 10 to Return of plaint to present in proper Court in defendant city? 4) please give some citations to alter the place of execution of promissory note in plaint. Thanks all
Asked 6 years ago
You have to make application for amendment of plaint as promote was executed in defendant residence and not at your house as alleged in Plaint
2) you cannot make application for return of plaint as per pleadings the promote was not executed at defendant house
Without making an amendment in the plaint how can you bring the jurisdiction of the plaint to the other court since the pleadings and the cause of action in the plaint has already mentioned to have jurisdiction in this court itself, hence better think about the consequences before taking any wrong decision as it will prove fatal to your main case or purpose.
You are asking citations for altering the place of execution of the promissory note in plaint, how is it legally possible to alter the place of execution of promissory note? Is it legal to alter the promissory note?