Legal Question in Civil Litigation in India

The father had two sons, and expired without a WILL. Share certificates in the name of the father, now in the posession of the elder son, were given by the elder son to an agent, who promised to get the shares transferred in the name of elder son, within a period of six months, and also handed over a cheque of amount 9 lakhs, as a security, saying that if he failed to return the share certificates , the elder son could encash the cheque and get payment in lieu of the lost share certificates. The agent was aware that there was no succession certificate in favour of either of the brothers.After 6 months the agent informed the elder son, that he could not get the shares transferred in the name of the elder son, and also was not in a position to return the share certificates( making excuses like that he handed it over to another agent and the other agent lost them or refused to return them , etc , .) , When the elder son tried to encash the cheque of 9 lakhs, it bounced.Now can the elder brother file a case for bounced cheque, despite the fact that there is no succession certificate in his name.Can he complain to police for the fraud done by agent, despite the fact that there is no succession certificate in his favour, and also the share certificates, lost or, whatever by the agent ,were in the name of the expired father ?


Asked on 1/09/11, 8:16 am

1 Answer from Attorneys
Vishwa Arya Arya & Co.

you or your brother has no case for dishonoured cheque as on the date of issuance of cheque the drawer was not liable to the payee. Moreover, the cheque was for security. So no 138 Neg. Ins Act is made out.

However either of you have a case for criminal complaint for cheating and breach of trust. the agent is custodian of the valuable security handed over to him which he is not able to return.

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Answered on 1/09/11, 8:38 am


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