private complaint for cheating 420

[Sathish Kumar]

In Jan of 2014, my uncle borrowed 2.5 Lacs from to to pay off the bank loan against his assets. In Apr of 2014 my uncle and his sons approached me for big loan of 6 Lacs, for which I denied, citing the pending old loan. They wanted money desperately to pay off the loan from 3rd party who is charging high interest 3-4% per month, and They started to convince me a lot, to help the relative when they are suffering. I said the loan amount is huge and I don’t want to take risk. For which they said that the loan amount is very secure and promised that:

“On demand we will pay the loan with interest. when you demand the loan amount, if we don’t have money to repay, we will sell or lease our assets and pay your loan.”

– these words created confidence in my mind. I took decision to give loan based on these wordings. On this day, we calculated the total liability amount as Rs.10,32,000/- (Rupees ten lakhs and thirty two thousand only) by including the old loan amounts. Promissory note Rs.10,32,000/- was executed in 50rs stamp paper, in which these asset agreement wordings are included. I deposited money in uncle’s bank account. I have bank counterfoil receipts. Pronote signed by uncle and his 1st son, witnessed by 2nd son

My uncle paid 50,000rs as interest on 21-12-2014. They borrowed 3,23,000 on 01-Nov-15 and executed a pronote signed by uncle and his 2nd son, witnessed by 1st son. Later, when I asked him to return money over phone and in person, he said that he does not have money, he will pay after he gets money. This went on for several months. So I phoned him again, he said he will pay shortly otherwise he will sell his assets and pay my loan. samething he told again and again, but never sold his asset.

uncle availed 10 Lacs loan against his house on 10-08-2016 from SBI. EC and certified copy of mortgage deed document are available. With this money, he bought 25 cows and leased cow pannai with ample land. inspite of repeated demand by me, uncle ignored my demand and did not bother to settle the loan, even though he had ample money to pay. This proves that uncle did not have the intention to pay my loan (wilfull defaulter) He clearly violated the loan agreement, his promise of selling his property to repay my loan if he does not have money to repay the loan. This proves he does not have the intention of paying the creditors even when had the ample opportunity to pay.

I went to his house and demanded him to settle the loan by selling his assets. Uncle, his daughter and his 2 sons asked me – what rights do you have to talk about our assets. I reminded them about the promise they made when they took loan from me. They laughed and said, we lied to you, we made a false promise to convince you and get the money, without that lie you would not have given loan to us. I felt cheated and said I will file case against you, to recover my loan. My uncle said he will also approach court and file for insolvency. They have cheated me well. They had malafide intentions right from beginning while getting loan from me. They gave me false promise to get loan from me.

Since I made continuous demand of money and warned him of legal actions, on 12-Dec-2016, uncle settled his House and land to daughter. Before paying off the bank loan, uncle and his 3 children with malafide intentions, in a view to escape from court attachments and proceedings, in a hurry, gifted the house on loan to daughter. uncle did not make Partition among family members, he purposefully avoided giving property to his both sons because his sons signed in promissory notes and the properties may get attached if I file money suite in future in default of loan repayment. uncle with malafide intentions transferred his properties in the name of daughter who did not sign in the pronote. The settlement deed was executed by uncle and his both sons signed as witness showing their participation. Thus this gift settlement was planned by uncle and his three children.

uncle was well aware of property attachment by court for non payment of loans and he had personal experiences in the past. His land was attached by Madurai district Munsif court on 02-12-1989 behalf of creditor named Katpura Nadar and sons. Court removed the auction order on 05-02-2007. EC shows this.

uncle his daughter and his 2 sons – had malafide intentions right from beginning while getting loan from me. They have cheated me well. They gave me false promise to get loan from me. Later, when I demanded to pay the loan amount by selling their assets, they did not fulfill the loan agreement and settled his assets, filed for insolvency, and enjoy physical possession of the gifted properties, postal acknowledgement cards show their physical presence in the house

uncle had the dishonest intention since the beginning itself to cheat me, by inducing me to deliver the money to him as a loan on the false promise of selling his property if he was not able to repay the loan. His subsequent conduct of transferring his properties to his daughter by way of settlement and then filing for insolvency to avoid creditors shows dishonest and fraudulent intention.

Now, the uncle, sons and daughter are trying to dispose the properties and make cash, settle in a different place. They have already entered into a unregistered sale agreement for one property. I feel civil suit is not enough to recover my money. If they undergo criminal prosecution, they will definitely come for loan settlement, fearing of jail.

Can I file private complaint in court, against uncle and his 2 sons under section 420?
I have already filed civil money recovery suit, in addition can I file criminal case?
Does this 420 criminal case have good chances of winning?
where to file? in my city or in uncle city which is 700kms away?

cause of action:
1) pronote was executed in chennai
2) loan amount was transferred from my bank in Chennai to debtor bank in theni
3) debtor settled his properties located in theni to daughter
4) debtor filed insolvency in Theni district court

timelines
———–
2.5 Lacs loan on 11-Jan-2014 to pay off the bank mortgage loan
6 Lacs loan on 07-04-2014 to pay loan borrowed from 3rd party
Pronote for 10.32 Lacs executed in 50rs stamp paper in chennai
uncle paid 50,000rs as interest on 21-12-2014, then no payments
uncle took 10 Lacs loan against his house on 10-08-2016 from SBI
mortgage deed document no 3693/2016
House gift to daughter on 12-Dec-2016, gift deed document number 5430 / 2016
Big thottam gift to daughter on 12-Dec-2016, gift deed document number 5431 / 2016
lawyer notice sent to him on 02-Jan-17
Small thottam gift to daughter on 15-Mar-17, gift deed document number 1139 / 2017
Money recovery suit filed on 03-Apr-17
Case numbered on 28-Apr-17
On 27-Jun-17, uncle filed for insolvency in theni district court
Private notice received by uncle on 05-Jul-17

I have all the evidence:
1) pronote executed in 50rs stamp paper
2) bank counterfoils showing RTGS transfer from my bank account to uncle bank account
2) EC showing the gifts to daughter.
3) certified copy of this gift deed documents and bank mortgage loan
4) lawyer notice copy and plaint copy of money recovery suit.

[Dr. Ashok Dhamija]

Why are you repeating your question, and that too in so much of detail? Please leave some time with me for answering other questions also. The same question should not be repeated again and again.

You have already asked this question and a supplementary question, which I had replied and the same is available here: http://tilakmarg.com/forum/topic/please-help-eligible-for-criminal-prosecution/.     

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Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers. List of his YouTube Videos.

[Sathish Kumar]

sorry for sending such long message.

[Author]

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