Process for NBW

This way you have to keep a watch dog agaist every legal officer. The effect of SC directions will percolate to lower level in due course.

Does the above mean that, if I can prove that the bank has taken undated cheques from me then it is an offence that I can charge them with? Please shed some light on this as this is very important...

There are simple and sure ways to come out of any NI 138 case for the accused. How the lay trap for the complainant is the expertise of defense advocate. Post dated cheques are one of them but how to use them for advantage of accused depends on the advocate.

I have given no of examples on this site in this matter.

Post dated cheque tactics for trapping the complainant will defer from case to case depending upon the pleadings in the complaint.

But I giving below the general example how to cross the bank person and demolish the whole complaint on his testimony only.

NO DOUBT THE COURT AND THE OPPONENT ADVOCATE WILL CREATE PROBLEMS FOR ALL STAGES OF FOLLOWING QUESTIONS BUT IF THE DEFENSE ADVOCATE IS GOOD IN VOCAL PRESENTATION WITH FULL KNOWLEDGE OF SPECIFIC SECTIONS OF THE EVIDENCE ACT AND CRPC IT CAN BE EASILY VERY VERY EASILY ACHIEVED.

CROSS EXAMINATION OF BANKER IN NI  138 CASE.

1)   Cheque books are printed in ordinary press by your bank.

2)   Any marking, code or security identification that this cheque was issued from your bank.

3)   Any record to show that this particular cheque was issued to the accused only and no  body else.

4)   How many accounts in your branch.

5)   How many cheques are handled daily.

6)   Now suppose a cheque is presented to your bank for payment –

a)   First you see that it is from your branch of your bank.

b)   Than entry is made in your records of all the cheques which has come for payment / clearing on a particular day.

c)   Than you see the account no on the cheque.

d)   From this account no you first check the signatures on the cheque from the records of that account.

e)   Thereafter you cheque the ledger for balance in the account.

f)    If the balance is sufficient the cheque is passed.

g)   If there is no sufficient balance or any other mistake in the cheque , cheque return memo is prepared.

i)             Such memo is recorded in register kept for such purpose.

ii)            The memo is signed by the officer above you.

iii)           The cheque with return memo is sent to the bank from where the cheque was received.

iv)          Signature of the person who accepts this memo it taken for your records.

v)           Entry is also made in the ledger for return of cheque and cheque return charges are debited to the account from which the cheque was issued.

vi)          Have you brought any such records.

vii)         Without records you can say on oath for all above happenings.

viii)        Just looking to the cheque you can not say when it was presented and when it was returned.

7)   The cheque does not have any stamp of your bank so you can not say whether it was presented to your bank for payment by the complainant.

8)   You have no records to show that this cheque was returned unpaid by your bank to the complainant.

9)   You have no records to show that the accused had a bank account with your branch at any time.

But won't this be a routine queries, cross has to be effective and that can be decided from the pleadings itself.

Regards,

Shonee Kapoor

harassed.by.498a@gmail.com 

You read every question than the importance wll be known.

At the end the bank person will so I do not know any thing so no case on the basis of cheque can be made out.

I can certainly appreciate the effecrtiveness of a defence lawyer but evidences are evidence.. if the issuing bank has returned the cheque stating it is done so due to insufficient fund then couple of things are clear:

- The there exist a valid bank account

- that the singature is valid

- the cheque as whole is valid

- it is returned only because there was no fund..

Now if the accused didn't reply to the legal notice (with a response that is reflective of his defence strategy) then there is no way he can claim that he is not aware of the cheque being issued to the party etc... Once you  missed the opportunity to reply to the legal notice then your defence startegies have very limited options.....

I guess it all de[ends on the circumstances of the case....

I agree with JSDN

Majority of 138   Complainant are Money Lenders squeezing those so called accused. 

I stopped encouraging such Money Lenders. Don's take their cases. 

They pay say 10k by a/c cheque, ask accused to bring cash & give him

ML again give 15k chq, ask him to being back cash 

ML now issue 25k cheque, recd Pro Note of 50K ,can prove, ML Paid 50k by Chq, Get Blank chq signed, 

Go on collecting  interest @5% -10% p.m., and when accused  fails to pay, ML File 138 Comp for 50K !

Squeezing poor accused, and also get  Sale Deed of his Flat on ML name!!. 

Publish in News Paper, and tak away his residence also..

WILL YOU NOT BE WITH THE VICTIM: THE ACCUSED?? in interest of Justice. 

THE BURDERN OF PROOF ON ACCUSED

HE IS BANKRUPT

ML  PLAN NED PERFECTLY, and can prove everything,

He regularly go to court, and knows how to reply in Cross exam.

ML also knows how to manage all concerned: adv, staff, j

Under the circumstances if JSDN is pro accused, it should be appreciated. 

Not replying the notice is best staratagy since in that case the complainant has to first prove the notice right from the point where same was sent in the envelope sent by regd post or only blank papers were sent.

Another most and most important point is who sent the notice , was he authorised to send the notice on behalf of the complainant.

My full support for all the persons / advocates like SHROFF working for accused.

EVERY NI 138 CASE CAN BE DISMISSED SINCE VERY DIFFICULT TO COMPLY WITH ALL THE REQUIRMENTS OF LAW.

I am sorry but that is rediculous.... let us not under estimate the intelligence of the complainant!!! You are welcome to support the accused BUT that doesn't mean that every accused is innocent... If you think you can get the complainant in cross examination, I am sure I can get your accused lot better... you can trust me on that... let us remember that the accused is presumed to be guilty in the case of cheque bounce....there is a valid reason as to why....let me know if anyone wants to know the same...

As much as there are crooks abusing the system, there are definitely accused who take money and not pay in honesty... one cannot make a case that all who borrows money are always honest and that all who loans money are sharks... such a presumption would be rediculous and I for one (as a complainant) is not here to get anyone's certificate on my conduct in trying to help someone who later decides to cheat me......

It is my belief that the truth will prevail (so long as the evidence supports it)....
and it must prevail.

I AM FOR TRUTH AND HONESTY... neither for accused and nor for the complainant....

Cheers!!!

Raj

I agree with Pvt. Rajking.

I also agree with Pvt. Rajking., if all accused are innocent and borrow and pay wisely then there won't be any case of 138.

Problem arises when innocent like me give an emergency loan to a friend and gets cheated.

ONE SHOULD BE FOR TRUTH AND HONESTY... neither for accused and nor for the complainant....

Well said Madhu Mittal, thanks.

I Agree with JSDN 

Not to reply Notice is many a time beneficial to accused. It allow accused one more chance to defend. 

In one Leading case, I asked Complainant, Whether you know the wife of Accused? or his children, or know their name or visited his home any time, or do you know where he reside? Answer was NO. Friendly loan but how will he prove he was family friend??

I won for accused on the ground that he did not send any Notice to accused  residence, and the accused never resided there, and never received any notice. Summon was received as his friend told accused, there is a summon at Police station for you. 

Had he replied notice, he would have lost one important defense. 

Usually Postal AD signed by whoever there in the house, and the signature of Cheque do not tally with Postal Ack.

2] Advantage No. 2 is, Once you know all Lacuna of Complainat's Evidence, after he closes further Evidence, You can create any defence,

If you replied Notice, your defence is limited to what you stated therein, and cannot change your stand.

In one case, I found, the Complainant never deposed that the Cheque was signed by accused in my preence, and he did not call bank official, I flatly refused the Signature, and I won. Once I knew, bank Sign was in English, I asked accusedto sign Vp in Hindi, and all other  Exhibit in Hindi, and accused advocate could not prove signature.

If notice was replied and with his Sign, I was in fix.

By replying notice, unless you have very strong points with you, you limit your own defence.  

Adv Shroff

15-12-2011