• Mr. Chand Saraswal who has breached the faith

I Stalin Xavier, I had provide Rs 58500 to Mr Chand Saraswal. Reason he said will provide job due to his good connection with a retail owner named Anand Prakash. In month of June 2018.

But now almost 4 months down he could do anything on job. So I said get my money back. Also he provided cheque but it bounced.

Also, he us not replying my call and what'sup. Also blocking my number and just call when he wants and just fake uodate gives that will be dine now, tiday, Tomorrow . But no sign of my money back.

Kindly guide for the same. I have online statement of money i had transfer and his photograph.
Asked 2 years ago in Criminal Law
Religion: Christian

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15 Answers

Sir if the cheque is recently bounced give a notice under 138 NI act for recovery of the lawful dues if he fails in 15 days of notice to give money file a complaint of 138 NI act with the jurisdictional magistrate.

further in case the cheque limitation is over a recovery suit has to be filed along a case of cheating and breach of the trust.

Shubham Jhajharia
Advocate, Ahmedabad
25521 Answers
131 Consultations

5.0 on 5.0

Hello,

You may send him a legal notice and thereafter you may file a police complaint against the said person for cheating.

Regards

Anilesh Tewari
Advocate, New Delhi
17863 Answers
324 Consultations

5.0 on 5.0

this is a case of cheating

you need to approach the Police and file a complaint

Yusuf Rampurawala
Advocate, Mumbai
6157 Answers
50 Consultations

5.0 on 5.0

file police complaint of cheating against the fraudster under section 420 of IPC

2) you can also file case of cheque bouncing under section 138 NI

3) however legal fees would be more than amount sought to be recovered

Police would conduct investigations and submit charge sheet against accused

Ajay Sethi
Advocate, Mumbai
82096 Answers
5157 Consultations

5.0 on 5.0

Hello,

1) You have to get a lawyer notice issued to him demanding to return the money on basis of the cheque issued to you. Engage a lawyer to assist you regarding right steps to be taken.

2) Ensure you get as much details as you can including his residential address, work address and employment details and provide them to your lawyer.

3) You can file a complaint / a cheque case to recover the money you paid him.

S J Mathew
Advocate, Mumbai
3246 Answers
140 Consultations

5.0 on 5.0

This is my response to you:

1. You must immediately take legal steps otherwise period of limitation is running against you;

2. Firstly you will have to send a legal notice u/s 138 of NI Act;

3. You must then see if he responds or no;

4. If he does not then we can file a complaint in court;

5. If he still does not respond then a warrant can be issued to him by the court and the police have to act on it;

6. Cheque bouncing is a criminal offence and there can be fine and arrest as well in it;

7. So consult a local lawyer and begin the process.

Gowaal Padavi
Advocate, Mumbai
1920 Answers
5 Consultations

5.0 on 5.0

Dear Client,

For cheque bounce file case under sec 138 of Negotiable instrument act.

And file criminal complain of cheating that on the pretext of job, he cheated you with this much money.

Yogendra Singh Rajawat
Advocate, Jaipur
21439 Answers
31 Consultations

4.4 on 5.0

Its good that you have evidence of transferring the amount. Kindly save all the messages varbal or in written regarding transaction and initiate legal action. First send a legal notice on his address giving 15 days time, and then you can file recovery suit with damages. Also see this person doesn’t run away, as now a days people take money and run away.

Varnika Singh
Advocate, New Delhi
327 Answers
2 Consultations

4.9 on 5.0

Send him a legal notice since the cheque given by him has bounced.

Incase he does not repays this amount back to you despite the legal notice, file a cheque bounce case under sec. 138 of the negotiable instruments act.

You may send the above legal notice through kaanoon.com

Vibhanshu Srivastava
Advocate, New Delhi
9180 Answers
189 Consultations

5.0 on 5.0

You can file a complaint for cheating against him. Also you can send him a notice under section 138 of Negotiable Instruments Act and prosecute him.

R. S. Akolkar
Advocate, Mumbai
53 Answers
1 Consultation

4.8 on 5.0

If the cheque issuer fails to make a fresh payment within 30 days of receiving the notice, the payee has the right to file a criminal complaint under Section 138 of the Negotiable Instruments Act.

you should immediately send a legal notice to him through an Advocate and file case under 138 NI Act

Mohammed Mujeeb
Advocate, Hyderabad
19002 Answers
18 Consultations

4.5 on 5.0

Hello,

Give him a legal notice for bouncing of cheque and if he did not respond file a case under section 138 of the NI Act.

Regards.

Swarupananda Neogi
Advocate, Kolkata
2922 Answers
6 Consultations

4.7 on 5.0

Hi,

After dishonor of check you should send a legal notice for returning the money. And then file the case.

Ganesh Singh
Advocate, New Delhi
6616 Answers
14 Consultations

4.5 on 5.0

Dear Sir,

It is better to file cheque bounce case against that person u/s138 NI Act. please follow the below guidelines, it will help you.

Cheque bounce FAQs

1. In which court do I need to file the complaint case under Section 138 N.I. Act in case drawer did not pay after receiving notice?

A complaint case under Section 138 N.I. Act can be filed in any competent court in whose jurisdiction any of the following acts have occurred:

a) Place of drawing of the cheque,

b) Address of bank where cheque was presented (holders bank address),

c) Address of bank where cheque is payable (drawers bank address)

d) Place from where notice was received by drawer of cheque

a. It is possible that each of these four acts could have occurred at different localities. The complainant can choose any one the above places to determine jurisdiction of court where they wish to file complaint.

2. What can I do if it has been more than 30 days since I received information of dishonour of cheque?

If the cheque is still valid i.e. 3 months (currently) have not passed from the date of its issue, you can represent the cheque again to your banker as there is no restriction regarding the number of times a cheque can be presented and that every subsequent representation and dishonour gives rise to fresh cause of action for filing complaint. It may be noted that once a notice for payment is given then the holder must file a complaint under Section 138 N.I. Act within 30 days from expiry of notice period as a fresh cause of action will not arise if the cheque is presented again and it is dishonoured and failure to file complaint will lead to loss of remedy available under Section 138 N.I. Act.

3. How long after notice has been served can I file a case against the drawer?

After giving notice you need to file a complaint case against drawer under Section 138 N.I. Act within 30 days from the expiry of notice period i.e. 15 days. In other words you need to file complaint case against drawer within 45 days (15+30) from the date of issue of notice. Failure to do so will lead to loss of remedy under Section 138 N.I. Act; however, you can file a summary suit for recovery of money and initiate criminal proceedings under Section 420 I.P.C. within 3 years from date of issue of cheque.

4. What can I do if I do not have the drawer's address?

You need the address of the drawer of cheque to issue notice as contemplated under provisions of N.I. Act; also the address is necessary if you wish to avail other legal remedies available to you. You can send the notice to the last known address. In case the address of the drawer has changed and the drawer has not left a forwarding address and the notice is returned with the noting that addressee is not available at the address or addressee has left without leaving a forwarding address then you need to file a complaint case after 15 days (notice period) of receipt of such information or returned notice and within 30 days from expiry of notice period. Failure to do so will lead to loss of remedy under Section 138 N.I. Act; however, you can file a summary suit for recovery of money and initiate criminal proceedings under Section 420 I.P.C. within 3 years from date of issue of cheque

5. What should I do if the notice was returned and could not be served to the drawer?

When a notice is returned to the sender as unclaimed or with the noting that addressee is not available at the address or addressee has left without leaving a forwarding address then the date of receipt of such information or returned notice would be the commencing date for the notice period of 15 days. Complaint case under Section 138 N.I. Act must be filed within 30 days from expiry of notice period. Such reckoning would be without prejudice to the right of the drawer of the cheque to show that he had no knowledge that the notice was brought to his address or previous address.

6. Can Mohan Law Chambers assist in drafting of legal notice as required by Section 138 of N.I. Act.?

Yes, Mohan law Chambers offers assistance in drafting of legal notice as required by Section 138 of N.I. Act.

7. How long after receiving information of dishonour of cheque do I have to serve notice to the drawer?

You need to serve a legal notice to drawer of cheque demanding payment of cheque amount within 30 days of the receipt of information from your banker regarding dishonour of cheque under Section 138 N.I. Act.

8. What if the cheque was given for a reason other than to discharge a legally enforceable debt or other liability?

In cases where cheque was given for a reason other than to discharge a legally enforceable debt or other liability, the provisions of Section 138 N.I. Act are not applicable e.g. Cheque given as Gift, in charity, donation etc.

9. Can a cheque issued in security attract offence under Section 138 N.I. Act?

With respect to the dishonour of cheques given as security, legal position is not very clear. It is subject to presumption and proof thereof that may be given by either party in support of their case. High Court of Delhi in the case of M/s Datt Enterprises ltd. vs. V.K.Dua held that the security cheque does not attract the provisions of Section 138 N.I. Act., if cheques were given as a security cheque as per past practice and pending reconciliation of accounts and not towards discharge of any liability.

10. What is a legally enforceable debt or other liability?

Legally enforceable debt or other liability should be such which is contracted in accordance with law and which is not opposed to public policy viz., wagering contracts, debt obtained for running brothel or gambling house etc.

11. What is Section 138 N.I. Act and why is remedy available under it preferable to remedy available under other laws?

a. Section 138 N.I. Act was made to provide an additional criminal remedy over and above the civil remedies available; to provide a speedy and effective remedy to holder of dishonoured cheque.

b. Summary suit for recovery of money takes time (approximately 3 to 5 years) and criminal proceedings under Section 420 I.P.C. does not provide any provision for recovery of money and is meant only for prosecution of the drawer of the cheque who entertains dishonest intention to cheat.

12. What is a summary suit for recovery of money?

Summary suit is a civil legal proceeding initiated for recovery of money due under any written agreement, cheque etc. These proceedings are different from normal recovery suit, as here the liability to prove that petitioner is not liable to recover any amount is on defendant for which he needs to obtain leave to defend from the court.

13. What is the validity of the cheque in day to day business?

The current validity of cheques is 6 months. However, please note that from April 1, 2012. The validity will change to three months as per recent directive of RBI (under Sec. 35A, Banking Regulation Act, 1949)

14. What can I do if a cheque given to me has been dishonoured?

a. The holder of a cheque that has been dishonoured can seek remedy in the following manner:

i) Action under Section 138 Negotiable Instruments Act (N.I. Act): Give notice under within 30 days of receipt of information of dishonour from the bank. In case of non- payment by the drawer within the notice period of 15 days, then the holder must institute a complaint case for prosecuting drawer within 30 days of expiry of notice period.

ii) Civil Action as Summary Suit: Issue notice within 3 years from issue date of cheque and institute a summary suit for recovery of cheque amount along with interest and legal expenses. The notice can also be used while filing summary suit for recovery of money.

iii) Criminal Action: Initiate criminal proceedings by filing complaint under Section 420 Indian Penal Code (I.P.C.) within 3 years from issue date of cheque. Please note that there is no provision for recovery of money under Section 420 I.P.C. and this section is meant only for prosecution of the drawer of the cheque when dishonest intent to cheat in inferred.

15. What documents / evidences do I need at the time of filing complaint case under Section 138 N.I. Act?

You will need at the minimum, the following:

a) Proof of service of notice - receipt of postal department / courier

b) Copy of notice

c) Cheque in original

16. What can I do if I do not file a complaint within 30 days from expiry of notice period?

If you have not filed a complaint case within 30 days after expiry of notice period, you can file a summary suit for recovery of money and initiate criminal proceedings under Section 420 I.P.C. within 3 years from the date of issue of cheque.

17. What can I do if it has been more than 30 days since I received information of dishonour of cheque and 6 months has passed from the date of issue of cheque?

a. Other remedies are also available to recover the cheque amount. You can file a summary suit for recovery of money and initiate criminal proceedings under Section 420 I.P.C. within 3 years from date of issue of cheque. In case the cheque was never presented during its validity period then a summary suit is the only available remedy for recovery of money.

(Notice can be given to drawer up to 3 years from date of issue of cheque for instituting a summary suit for recovery of money. Criminal proceedings for prosecution of drawer can also be instituted within 3 years from date of issue of cheque under Section 420 I.P.C.)

18. The drawer is asking me to settle the claim at a reduced value. What should I do?

Its up to you to settle the claim at a reduced value as the same will save your precious time, as well as legal hassle. Now-a-days courts are also encouraging amicable settlement between the parties. However, if you settle the dishonoured cheque amount at a reduced value, you will lose all remedies available under law.

19. What remedy do I have if the drawer delays in settling after conviction?

In a recent 2010 judgement, Supreme Court has laid strict rules to deal with such delaying tactics. Delay in settling cheques bounced will cost up to 20% of the cheque amount post-conviction. This is detailed as: 10% at District Court level; 15% at the High Court level; and up to 20% at the Supreme Court level. For e.g., Defaulter going for settlement will have to pay 10% of the cheque amount to avoid going to the jail.

20. Can I recover interest and legal expenses from the drawer of the dishonoured cheque?

Yes, you can recover interest and legal expenses from the drawer of the dishonoured cheque in a summary suit for recovery of money, but not in the proceedings initiated under Section 138 N.I. Act. However, under Section 138 N.I. Act the award maybe higher than the cheque amount.

21. What should I do if the drawer does not make payment upon receipt of notice?

You can adopt either or any of the remedies available to you:

a) Can file a criminal complaint against drawer of cheque under Section 138 of N.I. Act.

b) Can file a summary suit for recovery of money, interest and legal expenses.

c) Can file a criminal complaint against drawer of cheque under Section 420 of I.P.C. Please note that there is no provision for recovery of money under Section 420 I.P.C. and this section is meant only for prosecution of the drawer of the cheque.

In case a person has filed suit for recovery, then he is not precluded from filing a complaint under Section 138 of the Negotiable Instruments Act and Section 420 of the Indian Penal Code. The pendency of criminal matters would not be an impediment to proceeding with the civil suits.

Netravathi Kalaskar
Advocate, Bengaluru
4953 Answers
27 Consultations

4.8 on 5.0

You issue a legal demand notice demanding the cheque amount and after that initiate steps to file a cheque bounce case against him.

Calling him over phone or whats app will not fetch you the desired result.

Contact local advocate and proceed as per the advice received.

T Kalaiselvan
Advocate, Vellore
72170 Answers
1078 Consultations

5.0 on 5.0

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