Legal Question in Criminal Law in India

A loan was given to a Govt. Employee (Senior Clerk, handicapped by legs and when he writes his hand tremble) repayable in 24 installments on the basis of 24 post dated cheques, in addition to this, an undertaking from his Department(employer) was also given that if the cheque of borrower will be dishonoured, the amount of cheque will be deducted from his salary and sent to financer. At the time of taking loan, on the back portion of the undertaking, it was written “this undertaking is given by Mr. X and Mr. X is authorized to give this undertaking” and this writing is written by a person (As borrower’s hand trembles when he writes) who is accompanied with the borrower and , unknown to financer, afterwards, it was signed by the borrower. The said undertaking is not verified by the financer from the Department.

When cheques were dishonoured, firstly, the borrower was asked by regd letter that the amount should be deposited, otherwise your undertaking will be sent to department, when amount was not paid, the undertaking was sent to department, and afterwards, he has deposited the amount of dishonoured cheques, but no reply from the department.

But again, the cheques were dishonoured, same process was followed, but this time, his department wrote that the undertaking was not issued by this department and you should not do correspondence with department. Thus four cheques were become due and a notice u/s 138 dated 28.06.2013 was also issued to borrower, that was duly received by him on 01.06.2013. The Department gave notice to the borrower for action against him on 15.04.2013, 02.05.2013, 24.05.2013 and lastly on 30.05.2013 u/s 16 of C.C.A. of departmental inquiry along with photocopy of undertaking also.

After taking photocopy of undertaking, the borrower put a complaint u/s 156(3) to Magistrate court on 04.06.2013( because lodging of FIR was denied by the police on 02.06.2013 ) that the undertaking is made by the employee of financer to pressurize me to repay and it is forged one, only the signature (taken at the time of giving loan, at blank papers) is mine, and writing that undertaking is given by my departments’ authorized person is not in my handwriting, thus offence u/s 409,420,467,468,471 and 120 B was committed. This information and copy of complaint against financers’ employees u/s 156(3) was got by financer from borrowers’ department letter dated 26.06.2013 in reply of financers’ letter for getting deducted amount of cheques from salary of borrower, as the borrower gave this complainants’ copy to his department in reply dated 20.06.2013 to notice u/s 16 C.C.A issued to borrower and in said reply dated 20.06.2013, it has come to notice that said borrower took loan from another financer and said allegation against another financer were made u/s 156(3) on 01.06.2003 in one another magistrate court and copy of that was also given to his department.

Now First question, whether the employees of financer can present themselves in court for telling the whole truth, before sending the complaint to police u/s 153(3) i.e whether there is a locus standi to appear in the court as the financer got the information from the dept, and not from the court. Second question, whether the complaint for making a false complaint u/s 156(3) against financers’ employees should be made against the borrower. Third any remedy to financer to save himself and his employees and get punished the borrower.

Asked on 6/28/13, 11:22 am

1 Answer from Attorneys

Sudershan Goel Sudershan Goel - Advocate, International Visiting Scholar, USA [2008-10]

In a pending court case, it may be better to discuss your possible defence with a lawyer who may represent you in the court. An appropriate answer may require closer scrutiny of all the papers concerned with this case.

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Answered on 6/29/13, 4:29 am

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