• Breach of Trust and Cheques

I was an NRI till 2013 and given a huge amount to my relative as a hand loan from 2012-2016 and on December 2016 he gave me 2 cheques undated of my amount and a promissory note of Rs.100/- stamp paper on his name, he mentions in a promissory note that he will return this amount after 30 months i.e on July 2019. When I checked in bank they said the account is closed a long time ago and the signature is also not matched. All this money I have given to him in cash after withdrawing from the bank that shows in my bank statement. Being the NRI I did not file IT return in those years. Now, what should I take legal action? Please suggest me and guide in detail.
Thanks
Asked 1 year ago in Criminal Law
Religion: Muslim

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23 Answers

See you can file a police complaint or directly complaint before magistrate for cheating and breach of trust and further can along same also file a suit to recover the amount. 

Shubham Jhajharia
Advocate, Ahmedabad
25521 Answers
115 Consultations

5.0 on 5.0

You can bounce that cheque and send him a legal notice under section 138 of Negotiable instruments Act. You can later file complaint under section 138 against the said person and recover money. You can also file civil suit along with criminal complaint of 138 of NI Act

Prashant Nayak
Advocate, Mumbai
22633 Answers
49 Consultations

4.4 on 5.0

On cheque being dishonoured in presentation Issue your relative legal notice to pay your money within period of 15 days 

 

2) if he fails to pay file complaint under section 138 NI 

 

3) also file summary suit for recovery of your money with interest 

Ajay Sethi
Advocate, Mumbai
79719 Answers
4806 Consultations

5.0 on 5.0

You need to issue notice to your relative within 30 days from date of dishonour  of said cheques asking him to repay the amount WITHIN FIFTEEN DAYS from the date of receipt of said notice.

Failing which you need to file case under section 138 of N.I. Act within 30 after expiry of aforesaid 15 days of notice received by him.

Have copy of your Bank Statement pertaining to relevant period when you paid money to him.

You can also file money recovery suit.

 

S Srinivasa Prasad
Advocate, Hyderabad
2864 Answers
9 Consultations

5.0 on 5.0

1. you are advised to immediately lodge a police complaint against your said relative, (account close and signature mismatch will attract cheating)

2. also send him a legal notice claiming your amount back along with appropriate interest and compensation for causing mental harassment, pain, financial loss, etc  

call/mail for a detailed discussion

Suneel Moudgil
Advocate, Panipat
2336 Answers
3 Consultations

4.7 on 5.0

File a summary suit in civil court for recovery of the amount of promissory note. It will take less time for final disposal of the suit .

Kallol Majumdar
Advocate, Kolkata
2784 Answers
4 Consultations

5.0 on 5.0

1. You can file a Police FIR, requesting investigation and charge-sheet, for offences like cheating, intimidation, fraud, breach of trust,  etc.... against the person, supported with all relevant supporting documents.

2. IF the Police does not take action, THEN you can file private criminal case u/s 156(3) Cr.P.C., in the local Magistrates court, seeking directions to the Police to investigate and file charge sheet. The said Person may come down for settlement.

3. You can also file Cheque Bounce case u/s 138 N.I.Act, PROVIDED you can documentarily prove your source of loan funding.

Hemant Agarwal
Advocate, Mumbai
5487 Answers
25 Consultations

5.0 on 5.0

Hi,

You are suggested to send him a legal notice to return money within15 days and if not returned by him, file the case of recovery.

Ganesh Singh
Advocate, New Delhi
6542 Answers
13 Consultations

4.5 on 5.0

It's better to file suit for recovery on the basis of promissory note.  Your limitation to file suit is three years from July 2019.

Dalip Singh
Advocate, New Delhi
861 Answers
13 Consultations

5.0 on 5.0

Immediately present the cheques for encasement before the Bank and on dishonor, issue the notice through your counsel and demand your money back within 15 days from the receipt of the notice. if he does not make the payment within 15 days than you may file a criminal case against him before the magistrate for the offence of section 138 of N.I.Act along with section 420 of IPC for the offence of cheating.

 

 

138 Dishonour of cheque for insufficiency, etc., of funds in the account. —Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provisions of this Act, be punished with imprisonment for 19 [a term which may be extended to two years], or with fine which may extend to twice the amount of the cheque, or with both: Provided that nothing contained in this section shall apply unless—

(a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier;

(b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, 20 [within thirty days] of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and

(c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice.

 

 

420. Cheating and dishonestly inducing delivery of property.—Whoever cheats and thereby dishonestly induces the person de­ceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine

 

Feel Free to Call

Nadeem Qureshi
Advocate, New Delhi
5791 Answers
272 Consultations

4.9 on 5.0

Dear Sir,

The First Step what you need to do is that you need to send a legal notice through lawyer and wait for his response and if he ignores the legal notice you send him the notice second time.
After second time also if he ignores you can file a suit in the civil court which comes under your jurisdiction.

Taking all the documentary evidence available at your end and also you can claim for damages for cheating you and causing pain and litigation fees too.

1. Two legal notices and their acknowledgements
2. Promissory note between the parties
Suit value of 3 lakhs the court fee payment is 5426/-in A.P and Telangana and more than
three lakhs if you want to claim for every ten thousand hundred rupees of court fees to be paid.
Hopefully once you send the legal notice the party would approach you for a settlement.

Netravathi Kalaskar
Advocate, Bengaluru
4953 Answers
27 Consultations

4.8 on 5.0

Dose not matter, if he closed the account and differ signature, very case of cheque bounce and 420 IPC made out. Can initiate concurrent proceeding for cheque bounce by issuing legal notice within 30 days of cheque dishonor and criminal case of cheating. 

Yogendra Singh Rajawat
Advocate, Jaipur
21407 Answers
31 Consultations

4.4 on 5.0

Action can be taken as per N I Act and criminal laws. What is the amount?

Susheel Kumar
Advocate, Mumbai
34 Answers

5.0 on 5.0

- As per Supreme Court Judgment , 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.

- Since, the cheques are undated , you should present the cheques after filling favourable present months date.

- Remember , the date of cheque is limited to only 3 months from the date written on it.

- If the said cheques bounced/dishonoured, then take Return memo from the bank , and send a legal notice with the help of any lawyer . This notice should be issued within 30 days from the date of bouncing of cheque.

- If, within 15 days of receiving the said notice , your relative not refunded the amount , then you should file a Petition under section 138 N.I.Act before the Court of your jurisdiction.

- Out of this , you can file Recovery case under the provision of CPC , but here you will have to pay Court Stamp duty for the amount of cheques.

- Before filing the case , you should collect all the details of payment from bank 

- Since, you was NRI , then question of IT will not arise.

- Dont worry , you will get your amount refunded as per law.

 

Good luck and dont forget to rating Positively, and further you can contact me telephonecally.

 

Mohammed Shahzad
Advocate, Delhi
5666 Answers
55 Consultations

5.0 on 5.0

Hi 

1) Since you have a promissory note and 2 cheques handed over to you with a clear date (i.e the loan will be repaid on 01 july 2019), these documents are sufficient enough to prove that you have granted a loan to your relative.

 2) Also since the cause of action arose on 01 July 2019 (i.e the date on which the loan was due for repayment), limitation starts from 01 July 2019.  

3) Under law, you are entitled to file the following cases:

a) Summary suit for money recovery under Order 37 of Civil Procedure code and 

b) Section 138 of negotiable instruments act. 

4) Please note that under section 138 of negotiable instruments act, the person will either refund the money or go to jail whereas in summary suit you can recover the money from your relative either directly or  by way of attachment of his properties 

5) Also, even if a bank account is closed and signature is not matching the same is admissible as proof of default under section 138 of Negotiable instruments act. 

Hope this information is useful. 

 

 

Rajgopalan Sripathi
Advocate, Hyderabad
2068 Answers
382 Consultations

5.0 on 5.0

You should present the cheque in your account get the memo of cheque bounce from bank serve him legal notice for recovery of money and file complaint case of 138 NI act attach promissory note with complaint case.

You should initiate the action as soon as possible.

Mohit Kapoor
Advocate, Rohtak
10685 Answers
7 Consultations

5.0 on 5.0

Dear Client,

You may move an complaind under section 138 of Negotiable instrument act. You have also options of recovering the same by filling a suit for recovery. You may also make a complaind of him to the nearest Police station for cheating. 

Jaswant Singh
Advocate, Gurugram
891 Answers
2 Consultations

4.8 on 5.0

You should present cheque in your bank account. If the cheque returns for reason signature not matching, then you must issue a legal notice through an expert advocate and file a criminal case under Section : 420 of Indian Penal Case for cheating you. You must also file a civil suit for recovery of promissory note amount along with interest and legal expenses if he has any properties. If he has no properties, then you must file only Criminal Case against him for cheating you. Engage an expert advocate for doing necessary legal work.

Mohammed Mujeeb
Advocate, Hyderabad
18986 Answers
13 Consultations

4.5 on 5.0

You can file a cheque bounce case under section 138 of NI act after serving him a legal demand notice and he has not complied with the demands made.

Besides you can even file a money recovery suit based on the promissory note.

 

T Kalaiselvan
Advocate, Vellore
69750 Answers
951 Consultations

5.0 on 5.0

You can file summary suit under order XXXVII of code of civil procedure to recover your money with interest 

 

2) you can also file complaint under section 420 of IPC for cheating against your relative 

Ajay Sethi
Advocate, Mumbai
79719 Answers
4806 Consultations

5.0 on 5.0

This is Notice for.cheque bounce you can serve to.your relative if he fails to return the amount in the notice period you have to.file complaint before the magistrate .

You can also file criminal complaint of cheating and breach of trust along 138 NI act with the jurisdictional magistrate.

Shubham Jhajharia
Advocate, Ahmedabad
25521 Answers
115 Consultations

5.0 on 5.0

The legal notice is perfectly okay and you should send him legal notice and file the case. 

Mohit Kapoor
Advocate, Rohtak
10685 Answers
7 Consultations

5.0 on 5.0

Since our lawyer ha drafted a strong legal notice, if you are satisfied with it then  you may proceed with it.

T Kalaiselvan
Advocate, Vellore
69750 Answers
951 Consultations

5.0 on 5.0

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