• Hand loan default by a friend

I had given a Hand loan to one of my close friend amounting to around 15 Lakhs. He had agreed to repay in 6-8 Months and given me four cheques and an e stamp based agreement mentioning all the details of amount and cheque number and signed with 2 witnesses who were common friends. However now I am in a financial difficulty and asked him repay some amount at the earliest. He is refusing and stating that he has another 4 months time as per agreement and I must wait till then. In argument I said I will produce a cheque and take further legal route, he seems not worried and said to ahead and present the cheque. This transaction does not involve any interest and I have paid him by cash. I was employed earlier and have sufficient proofs and IT returns filed for the amount I have paid to him.

I want to understand what are my chances if intake legal route and what will be the time frame if i take legal route.

What are the other options, he has not given his address proof. But I know his residence. And I have not taken promisary note, is it required along with cheques ??

Thanks in advance for your valuable advice
MOHAN
Asked 7 years ago in Criminal Law
Religion: Hindu

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10 Answers

1) as on date there is no debt due and payable 

 

2)repayment is due in 6 to 8 months time 

 

3) if you are presenting cheque and it is dishonoured defence raised would be there is no debt due and payable 

 

4) not necessary to take promisssory note with cheque 

 

5) you have duly signed agreement executed by your friend which can be relied upon by you 

Ajay Sethi
Advocate, Mumbai
99779 Answers
8145 Consultations

Even if you deposit the cheque and it gets on the bank is not going to help you as your agreement is not yet complete however your agreement is not registered but it is an e-stamp paper which is a valid stamp paper in case you take any action it may not help you it will be good for you to wait till the time the agreement completes and then in case there is no payment then you can go for a specific performance of agreement

Vimlesh Prasad Mishra
Advocate, Lucknow
6851 Answers
23 Consultations

1. The evidences you have is enough to nail him down to get back your money.

2. So file a case of cheque bouncing under section 138 NI Act once the cheque is dishonoured.

3. The e agreement is another good piece of evidence on which basis you can file a civil suit for recovery of money.

4. in addition to thse you can file a criminal case of cheating as well.

Devajyoti Barman
Advocate, Kolkata
23653 Answers
537 Consultations

See you can present the cheque though she there is still time as per agreement so the debt is still not due therefore the case can fail there are chances he can contest so therefore it would be better you may wait some time as per agreement and then present the said cheques. Since the debt after agreement time can be recovered he can be prosecuted under 138 NI act if the cheque bounces. 

Shubham Jhajharia
Advocate, Ahmedabad
25513 Answers
179 Consultations

1) Kindly take step as per e stamp agreement. Means whatsoever terms and conditions are written in the agreement follow accordingly.

Ganesh Kadam
Advocate, Pune
13008 Answers
267 Consultations

you can initiate a Criminal Complaint as well against him under Section 138 of the Negotiable Instruments Act in case the cheque dishonoured.

So you do not need to worry about getting your money back as you have the documents to prove the existence of the loan and claim your money back in case the same is not paid.

 

Mohammed Mujeeb
Advocate, Hyderabad
19325 Answers
32 Consultations

You can prosecute him under section 138 of Negotiable Instruments Act. First send a legal notice through advocate and demand your amount. If he doesn't pay within 15 days if receipt then within 30 days after that fifteen days file a criminal Complaint.

Prashant Nayak
Advocate, Mumbai
34515 Answers
249 Consultations

Dear Sir,

You have hundred percent chances of winning cheque bounce cases. Further for interest you may file a civil suit but you have to pay about 7% of claim as Court Fee.. Few FAQs are as follows.    

 

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

 

Kishan Dutt Kalaskar
Advocate, Bangalore
6230 Answers
499 Consultations

You can present the cheques before bank, get it bounced, issue him a legal demand notice and after that file cheque bounce cases.

Once he gets notice he will give a reply, if not you can simultaneously file money recovery suit also.

 

T Kalaiselvan
Advocate, Vellore
89978 Answers
2492 Consultations

If e stamped agreement says time period to return the amount means, you have to wait till the period completes. before that you deposit the cheque, it is violating the agreement from your side.

G Suresh
Advocate, Chennai
394 Answers
5 Consultations

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