Case-u/s.138of the n.i.act,-non-micar cheque 5-2-2009.

Querist : Anonymous (Querist) 30 November 2011 This query is : Resolved
mere Client ne loan liya tha magar AGENT ne Security ke hisab se CLIENT ke passé jyada Cheque le liye or loan complete ho jane per bhi uske paas hamare 2-3 Cheque the usme se 1 Cheque ka mis-use kar ke Cheque me 5-2-2009 tarikh likh ke Rs.1,00,000/- ki DEMAND kit hi.
FARIYADI ne 2-4-2009 me uski Bank me Cheque bhar diya. who CHEQUE NON-MICAR CHEQUE tha.
who Cheque INSUFFICIENT BALANCE ke karan Return huva.uske baad 2nd TIME FARIYADI ne fir se BANK me Cheque Deposit kiya.
FARIYADI KI Bank ne FARIYADI ko 4-6-2009 me INSUFFICIENT BALANCE ke karan Return huva.
aur hamare Client ko N.I.ACT 138 ka NOTIC 25-6-2009 me diya tha. baad me FARIYADI ne court ME Dt-10-8-2009 ko FARIYADI ki hai.
COURT me SUMMONS ke STAGE per Case chal raha tha.
hamare CLIENT ko POLICE ne INFORM kiya uske baad11-11-2011 ko COURT me ja ke CASE ki COPY RECEIVE li hai. next date 17-12-2011 hai.
17-12-2011 ko mere CLIENT ki PLEA ka STAGE hai.
Mere CLIENT ko bachane me kon se LEGAL POINT hai ?
Kya NON-MICAR CHEQUE ki FARIAD ho sakti hai ?
Koi ADVOCATE muje kaheta tha ke CASE 2009 ka hai to CASE nikal jaiyage.
Koi JUDGEMENT,ya koi LEGAL POINT hai ki mare CLIENT ACQUITTAL ho jai.
Pl help me for this Case.

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DEFENSE ADVOCATE.-firmaction@g (Expert) 30 November 2011
the law does not make any difference in micor and non micor cheques.

Procees is issued you have to contest the case.

There are many finer points through which you can win the case.

M.Sheik Mohammed Ali (Expert) 30 November 2011
yes, i do agree

Deepak Nair (Expert) 30 November 2011
Hello Dear,
The decision of the court will be in your favour if you prove the following points.
1. Your client's loan is fully paid and no amount is pending / outstanding to be paid.
2. The cheque deposited was not for discharge of any legally enforceable liability.
3. The cheque in question was given as a blank cheque in the form of security only and not as an instalment of loan.

"Sirf case 2009 ka hone se aap ka client nahi bach payega". You have to prove at least all the above points.

There are number of judgments which you can easily find out by searching online

Rajeev Kumar (Expert) 30 November 2011
Only mr. nair has given statisfactory reply

ajay sethi (Expert) 30 November 2011
aap ka defence yeh hona chaiye

1)pura loan repay ho gya hai . no debt due and payable

2) blank cheque liya gaya tha

amount , aur tareek aap ki handwriting me nahi hai

3) it would amount to material alteration of cheque .
4)rely on following judgements

A single judge of Kerala High Court in Capital Syndicate Vs. Jameela [2003]44SCL220(Ker)held that if a drawer issues a cheque leaf with his signature only and without the name of the payee and the specifying the amount and date, the filling up of the name of the payee and the specifying the amount and date would amount to material alteration u/s.87 of the act and therefore the criminal proceedings u/s. 138 of the act would not lie if such a cheque is dishonored. The court observed that “…..the subsequent insertion of the amount and the name of the payee without the consent of the drawer would amount to material alteration rendering the instrument void u/s. 87 of the Act

ajay sethi (Expert) 30 November 2011
A single judge of Andhra Pradesh High Court in Avon Organics Ltd. V. Pioneer Products Ltd. & ors.[2004]119CompCas189(AP) also observed and held as follow: “whenever blank cheques are filled up and presented, a presumption can be drawn u/s. 139 of the Act. It’s a rebuttable presumption. The question is whether the accused is able to rebut the presumption. I’m of the considered view that he has rebutted the presumption in this case as he has not given consent to fill up the cheque in particular amount, in figures and words and the date portion. It constitutes alteration of the cheque. I also state that it was issued for the legally enforceable liability, namely, towards the amount due under the invoices. But the instrument issued without mentioning the figures, words and date portion in the cheque do not amount a cheque or a bill of exchange at the time of its issuing. Subsequently, it can be altered only with the consent of the party, who has issued the cheque. Otherwise, it amounts to material alteration. When it does not constitute a cheque and the same is filled up and presented to the bank, it cannot be said that the accused has committed an offence…..the person who accepts the blank cheque certainly has to take it along with the risks to be faced under law. It’s not opened to him to complain subsequently when the amount has not been realized, etc. I’m of considered view of that the cheque issued without mentioning the amount for which it is drawn is not a cheque at all. It’s not a bill of exchange at all as it’s not drawn for a certain amount. When such is the thing, the question of invoking S. 138 of the Act does not arise”.

ajay sethi (Expert) 30 November 2011
The Madras High Court in M/s Balaji Seafoods Exports (India) Ltd. And another v. Mac Industries Ltd. held that on the date when a blank cheque has been issued by a drawer there should be a subsisting debt or liability between the parties. It further held that the dishonour of an undated cheque which has been issued only as security does not attract the provision of S. 138 of the Act at all

DEFENSE ADVOCATE.-firmaction@g (Expert) 30 November 2011
yes but it is only after you can prove that blank cheque was given. You have to prove with reliable evidence for the same for court to believe.