138 n.i. act
chiranjib mukherjee
(Querist) 23 April 2012
This query is : Resolved
ONE LADY IS HOUSE WIFE AND SHE HAS NO SOURCE OF INCOME AND SHE HAS NO INCOME TAX FILE AND SHE DID NOT PRODUCE ANY DOCUMENT TO SHOW THAT SHE GAVE LOAN TO THE ACCUSED AND SHE VERBALLY STATED THAT SHE GAVE LOAN TO THE ACCUSED. WHETHER IT IS LEGALLY ENFOCEABLE DEBT AS PER PROVISION OF 138 N.I. ACT?
V R SHROFF
(Expert) 23 April 2012
YES, IF SHE HAD GIVEN LOAN
Raj Kumar Makkad
(Expert) 23 April 2012
Initial presumption is that the accused had issued the cheque against legally enforceable debt to the complainant but this presumption is rebuttable. Accused has to prove that the cheque was not against any lawful debt or was issued against this or that matter etc.
In the given matter, the accused cannot shieft his onus upon the complainant.
ajay sethi
(Expert) 23 April 2012
how was money adavnced by cash or cheque? is the amount substantial?
she must have give n some explanation how she had so much money in her affidavit .
presumption is that cheque was in respect of debt due nad payable
Devajyoti Barman
(Expert) 23 April 2012
The facts you have mentioned are not sufficient to rebut the presumption that she had a valid debt from the accused person.
Shonee Kapoor
(Expert) 23 April 2012
She can have some other accumulations.
Regards,
Shonee Kapoor
harassed.by.498a@gmail.com
Anirudh
(Expert) 24 April 2012
Dear Mr. Chiranjib,
Pl. indicate the following:
1. Whether she has filed a complaint u/s. 138 or not.
2. If so, what was your reply to the notice issued by her about cheque dishonour and demanding money?
prabhakar singh
(Expert) 24 April 2012
Even a house hold wife having no earning can establish savings from budgeting household expenses.It should not be a surprising matter.
rest can be answered only when you explain questions asked by Mr.Anirudh.
DEFENSE ADVOCATE.-firmaction@g
(Expert) 24 April 2012
The basic question will be why the money was given at all. Unless past history of relations or transactions are not shown it is pure money lending under benami name of lady by some body else.
Power of Negative, power of defense is immense.
Santosh Goswami,Advocate
(Expert) 24 April 2012
It does not matter. Whether the cheque was issued and dishonored are the issue. Since once the cheque is issued the presumption arise that some transaction for specific purpose must have been entered into.
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SAINATH DEVALLA
(Expert) 24 April 2012
There have been a lot assumptions and presumptions from the experts.My sincere opinion is that the accused has a better defence than the contentions of the complainant.
R Trivedi
(Expert) 24 April 2012
The point is how the cheque reached to complainant.
Mere defense that it is not possible for complainant to give such amount as loan may not be sufficient in real case.
Although in the past courts have given benefit to accused based on such analogy, but as I said it depends on many factors like amount, status of complainant, the pleading etc..
