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05 July 2017
There are number of 138 cases where Complainant states that they have lent money out of friendship to accused in cash to the tune of Rs.10 lacs to 100 lacs. Complainant is not able to describe how they had cash to such high amount.Nor they describe its source.Nor the mention in their ITRs . Whether in such cases there is any defence to the accused is available ? In many cases it is found that their are professional complainants take advantage of cheques come into their hands in any way. Is there any decided case where Complainant is not able to prove his financial capacity for lending such huge amounts.
My querry is not for those experts who reply 1. It is academic querry 2. Refre to a good lawyer 3. Who am I and how connected and so on.
08 July 2017
As stated by the author there are number of cases u/s 138 of the NI Act, I hope Mr. AK Mishra will agree that each case has its own merits and no two cases can be same (which may be similar) accordingly its defence will affect the evidence, argument as well as judgement.
When the amount of Rs. 10 to 100 lakh is advanced as "friendly" loan ( all in cash ), without intimating and submitting to any government agency, why the friend has asked for issuance of cheque?
Even for the sake of argument, which is otherwise not admitted, the cheque have been issued as a collateral security, it has to be mentioned/endorsed on the face of the cheque, where provision of Section 138 of the Negotiable Instruments Act, 1881 do not attract.
Further you have stated in many cases they have taken advantage of professional complaints make your query vague since you did not explain, what are the complaints, who have made, what is the result????? . Through out the query I could not make out whether you are representing the complainant or accused.
Which type of citation/judgment you would like to search and supply emphasis (which is generally not provided on this platform)??
There are number of other questions and inconsistencies which make your query absolutely academic, better to consult some local senior lawyer.
08 July 2017
1) Experts have given detailed answers.
2) You have raised very vital point that experts avoiding to give answers by giving counter advice. And I AM sure the experts on this site should respect this most imp suggestion
If you can not add value to reply experts should avoid giving counter advice that what the person who has raised the question should do.
3) Coming to the problem it is true that the provision of NI 138 is being misused not only by private persons but even by BANKS and NBFCS. But no law can be made perfect , it always has flaws.But by many many amendments the cheque law has created many loop holes.
Most of the accused are carried away by their ego and advice by legal people who did not handle any cheque case.Otherwise there are many defense routes available and any cheque case can be won very easily.
PLEASE NOTE THAT THE CHEQUE LAW HAS BUILT IN PRESUMPTION. SO THE MOMENT THE ACCUSED ACCEPTS THAT IT IS HIS OR HER CHEQUE, ALL OTHER DEFENSE ROUTES ARE CLOSED.
SO THE CHEQUE WAS BLANK OR CASH IS NOT REPORTED IN ITR OR IT WAS STOLEN CHEQUE - ALL SUCH PLEAS ARE REJECTED.
SIMPLEST OF SIMPLE METHOD TO WIN CHEQUE CASE IS DIG OUT HISTORY OF THE LEGAL EXPERT TO FIND OUT IF HE OR SHE HAS WON ANY CHEQUE CASE.WILL TRY WILL WIN TYPE OF ASSURANCE WILL NOT DO.
Regarding case laws please note that every case has an independent history so most of the time the case laws are rejected by courts. Again for taking use of case laws one has to be agile by constantly refreshing the recent judgments.Example- cash should be reported in ITR may be an earlier judgement of some HIGH COURT but there after there are SC judgments giving sweeping interpretation of cheque law.which wash out all previous theories accepted by lower courts.
14 July 2017
Most of the NI 138 cases, at least in Kerala, are pursued under the pretext of "friendly loans" which every advocate knows is a mere fiction invented by the BLADE MAFIA. It is my considered opinion that truth of the inherent facts offers substantial defense, but the fact of the matter is that legal 'Fraternity' is reluctant to subscribe truth, may be, because such an approach would lead to more than 90% of the NI 138 cases disappearing into the thin air.
17 July 2017
Mr P Venu you are right that cheque cases can be easily dismissed.
Rearding PERFECT SOLUTIONS you need decided cases JUDGMENTS . Now you are offering solutions for every other problem on this site so why you need a judgment.
And how many judgments you want, I will give details of cases and get certified copies from court.
And what you can find from judgment .A multimillion case at MUMBAI court was withdrawn by the complainant after tough fight on behalf of accused so final order is withdrawn by complainant. So you have to study entire records to find what tactics were used to force the complainant to withdraw the case.
19 July 2017
One Expert said that Rulling /citation/judgments etc not provided in this forum. I am not agreeing to this. I have received some good advises supported by judgments in this forum from Experts. There are experts who are updated knowledgewise. Otherwise they do not touch query .