Dear Sir, I have Rent , Constructions, Cotton Yarn business income. I purchased few specific n numbered *under construction flats* , entered into flats buy-back MOU with d same builder. After an year the builder was supposed to send whole Profit amount ( as per MOU), but he sent part amount n after # 6 months deducted 10% TDS & shown d sent payment as Interest. Since submission of my IT return was pending & to avoid complication, I too had shown d amount as *Interest received instead of Profit /Other Income*. During next financial years, I have shown received sum & accrued profit amount as *Profit*/ *Other Income*. My major profit n principal amount was outstanding/ receivable from d builder. After sometime, the builder stopped making due payment, meeting n receiving calls. After informing through middleman , I have sent all Post Dated Cheques for collection via my bank. All d Cheques were dishonoured ( Insufficient Fund ). I initiated proceeding U/sec.138,( He refused Notice ) . after 2 yrs., now at Cross , the accused is telling lie n trying to establish that the sum received by him was on *Interest payment term*.(Contrary to MOU terms ). Sir, under the above circumstances, my suit under *NI Act u/sec. 138* could suffer, due to accused move ? *Pls.advise*, how my legitimate dues (receivables) could be recovered n the accused be punished for his unethical & illegal tactics.
1. Whether its interest payment or profit payment does not matter
2. S. 138 is only concerned that there has to be a debt or liability on the drawer of the cheque towards the payee
3. The form of the debt or liability is nowhere specified
4. If accused says that the payment was towards interest, then too he is admitting his debt or liability towards you
5. The cheque issued by drawer simply has to be for discharge of a debt or liability. The form of such debt doesn't matter
1) file summary suit under order XXXVII of code of civil procedure to recover your money with interest
2) please note that suit has to be filed within period of 3 years other wise your claim would be barred by limitation
3) complaint under section 138 NI is for punishment not recovery of money
4) if you have shown money a received as interest you are not entitled to profit
Its is not clear that whether the accused admitted MoU or not ? please specify !!!!
1. it is to be seen whether there is any written agreement on interim payment or not.
2. if not then as per the written agreement you are entitled to get the receivables as agreed between 2 of you.
3. So the defence taken by the builder does not have much merit in it.
4. Cross examine him more on this point alone and on the written terms. His reply is not enough to save him from the rigours of 138 NI Act case.
5. So if your case is proved you will get twice the amount drawn on the cheque and send him to imprisonment as well.
Hii
U/S 138 of NI. Which clearly speeks of cheque bouncing and not payment which lead to cheating and froud.
Some where accused accepted whether interest or capital.
If your grievances not solved here in this court you can file a further in higher court under the revision bench for unsatisfactory judgement.
Regards
1. The accused has to defend himself and therefore he will surely deny your case at cross.
2. In a prosecution for cheque bounce there is a presumption that the cheque in question was issued by the accused to the complainant to discharge a legally enforceable debt, and the onus is on the accused to rebut this presumption through cogent evidence.
3. Apart from the criminal case that you have already filed, a suit for recovery of money can also be filed in the competent civil court.
Dear Client,
In check bounce cases, presumption as to legally enforceable debt due on respondent. Onus on him to refute the claim. your case is good baked by MOU,
Any submission by accused contrary to terms of MOU will go against him and declare him fake witness.
No harm to your case.
The best alternative to this is that you file a money recovery suit simultaneously in the civil court based on the cheque submitted to the cheque bounce case.
In the cheque bounce case you may have to project the clause 'legally liable debt' convincingly before court.
He may tell plenty of things, you should ignore them and concentrate on your case alone.
You have to rely on the documentary evidences supporting your pleadings.
He needs to prove the same. You have presumptions under section 118 and 139. If you have proper documents and same are proved in court then he will be convicted
Follow-up Question : Sir, Thank you for ur useful answers. I would appreciate your guiding further... 1) Accused have *Refused* notices , does this make *accused's defence limited*? 2) There is presumption that d cheque in question was issued by d accused to d complainant to discharge a legally enforceable debt , sir pls.explain d same. 3)How The Bombay Money Lending Act could come to the rescue of the accused ? 4) When all d entries clearly reflect in d *Bank Statement* , Can the accused ask for *Income Tax Return* to verify d same ? Could d same be refused by complainant ? if yes, under which sec./ Judgement ? 5)Filing of Suit under *Maharashtra Protection of Interests of Depositors Act 1999* , is of use in my case, Pls.advise in detail.
1. No
2. It means the onus of proving innocence lies on the accused person. You need not prove his crime.
3.Nothing
4.Yes. No decisions is required for this.
5. No. File a summary suit for recovery of money.
When accused has refused to accept notice it is deemed to be served
2) accuse can ask for your income tax returns
3) when cheque is issued by accused it is presumed that it was issued as money was payable by him to the complainant
4) under money lender act money lender can not recover usurious rate of interest
1. Refusal of notice by the accused does not create a dent in the presumption of accused's liability under Section 138 NI Act. It also does not help you.
2. The presumption simply means that the court has to begin with a presumption that the accused was liable to pay the amount for which he had actually issued the cheque in question which was dishonoured on presentation in the bank.
3. The accused can seek the IT returns of the complainant, to this end he will have to file an application in the court.
1. No, the accused will appear before court once he receives summons from court, if not you may arrange to get a warrant to arrest him based on his refusal to receive the legal notice.
2. If the cheques was issued to repay any transaction between the complainant and the accused, then it is called as legally liable debt.
3. Let him come out with his reason or an excuse, why do you want to step into his shoes, do not try to defend yourself before being offended.
4. Yes, he can very well demand to defend himself.
If you have the ITR, it becomes your duty to produce them before court.
5. Cheque bounce case will not come under this act.
Refused is as good as served as per General Clauses Act. If cheque is issued it is presumed that the same is issued to discharge legally enforceable debt. If he is not a Registered/licensed money lender he can't advance money. Yes he can ask for income tax details. If refused it will draw adverse inference against you. It is an act in which mass depositors are duped by spuriously developers.
No in friendly loans money lenders license is not required but you can do money lending business in the name of friendly loan without licence