Hello experts, I had transfer some amount to one on the LLP as we wanted to do partnership with them for pri-school business where we both agreed to invest 50% of total cost. This person had very good reputation in the society we are living and hence we fall in the trap. And only notary was done and this person never let us enter in Partnership deed, every time when we asked for it he avoided topic. Because that person's attitude, avoiding partnership deed and behavior towards us we decide to withdraw from project and after lot of discussion LLP owner gave us post dated cheques of same amount which I transferred to his LLP account. Before I present cheques to the bank, LLP owner send me SMS and Email saying "because of not having enough funds in my account I am stopping cheques and I have send registered post as I have full intentions to repay me back but you need to wait". I did not see the emails and SMS he send and presented cheques to the bank. Registered post I received after I present cheques to bank. When I asked him about why he stopped cheque payments, he said I have given this money to course designer and I will return you once I get money back from them. When I asked about receipts for money transaction, contact number, or call that person from his cell he refuses. Looking all above sequences I had doubt on his intentions and I send him notice also file case under 138 NI Act section well within time lines which is yet to come on bench. Now questions which I have are, Note: My intention is not punish him but to get back my hard earned money. - Can he declare himself bankrupt to save himself from possible punishment or repaying us. - If he declare himself as bankrupt what possible steps can court of law takes? - With most of my talks with few other businessmen friends they says your money is gone and it will not come back, this person must be aware of lot of loopholes in the system and will come out safely. - Can I also file 420 case along with 138 NI act? - What loopholes he can opt to save himself or repay me back? Thanks in advance for your valuable advice.
The provisions of the Insolvency and Bankruptcy Code 2016 as application to the Limited Liability Partnership Act, 2008 as per Section 2(c) of the Code.
Section 59 of the Code provides for Voluntary Liquidation of the corporate persons. Under Subsection 3 two third of the creditors in terms of value are required to approve the resolution passed by the company for voluntary liquidation. A liquidator is then appointed. An application is then made by the liquidator to the Adjudicating authority for the dissolution of such corporate person. Adjudicating Authority then passes and order for dissolution under Section 33 of the Act.
After passing of an order for liquidation the Liquidator is directed to create a Liquidation estate for the benefit of the Corporate person under Section 36 of the Act. From such estate, inter alia, all the claims of the creditors are settled. (The provisions of sections 35 to 53 of Chapter III and Chapter VII shall apply to voluntary liquidation proceedings for corporate persons with such modifications as may be necessary)
Thus voluntary Bankruptcy can be declared by the LLP owner however if such proceedings are done with the malicious or fraudulent intentions then the Adjudicating Authority may impose a penalty which shall be not less than ₹1, 00,000 and which may extend to ₹1,00,00,000 under Section 65 of the Code..
In many judgements it has been decided that offence punishable u/s 138 NI Act the specific ingredients are cheque, dishonor of cheque on account of non- sufficiency of funds and failure to make payment despite service of legal notice offence punishable u/s 420 IPC consists of the offence of cheating which requires element of falsification, fraud, dishonest, inducement, etc.
( R. P. Mathur Prop. Radhika Leather v. S.R. P. Industries Ltd., 2009 (109) DRJ
Umesh Munjali vs State (Govt. Of NCT))
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