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06 December 2011

Hi experts,
I need ur kind help in 138 NI Act case,I am from accused side.He is milkman & complianat is proprtier of sweets business.Accused sold milk to complaintant sweet shop.Brief facts of case as follow:accused borrowed moneyfrom complinant on 16/5/05 of Rs 42,300/ by way of cheque & the said cheque was duly encased by accused & accused was agreed to make payment of Rs 45000/ alongwid interst after 18 months & in discharge of his legal liabilty he issued post dated cheque of Rs45000/ dated 14/11/2005 & it hand over the compalinant on 14/10/2005.This statement was according to complaint but accused stated that he gave blank cheque as surety widout any amount,date,signature.compliannat herself filled date,sig,amount.In complaint,complainant stated thataccused approched her before the said date 14/11/2005 & request her not to present cheque & he revalidated & change the date 14/12/06.But she herself add another date put signature of accued,then she presented thesaid cheque on 13/06/2007,which was bounced due to insufficient funds,then she sent legal notice through her counsel on 2/7/07 & filed complaint on1/8/07.complianat did not produce any documentregarding borrowed money of Rs 42,300/ which she gave to accused.Complainant also gave POA to her reletive to contest the case.Now case is pending to cross of complainat,two bank official witnesses & their cross done by previous counsal of accused.Plz suggest me what is our defence under these facts & what types of questions may I ask to complainant on cross examination & can this case go favor of accused ? How can we observe thatvalidity of cheque?Is this case of time barred debt? Plz reply soon,it is very urgent matter.
Thanks in advance

ajay sethiOnline (Expert)
06 December 2011

if date , amount filled in by complainant no complaint under section 138 is maintanable . you will have to prove that these details ahd not been filled in by you .

you cna ask the complainant whether date ahs been filled in by complainant

whether amount filled by complainant .

whether date has been changed by complainant on cheque. ?

there are judgemets of various courts that when material alterations have been made no cheque bouncing case maintanabale

Shonee KapoorOnline (Expert)
06 December 2011

Agreed with Ld. Mr. Sethi, it would be a fir case to be quashed.


Shonee Kapoor

Rajeev Kumar (Expert)
06 December 2011

Agree with experts

Raj Kumar MakkadOnline (Expert)
06 December 2011

You have to ask each and every question relevant for your defence like date of loan, term of loan, repayment, date of handing over the cheque, no details mentioned, security deposit, cutting unauthorizedly made etc. etc. cross-examination depends upon the presence of mind as per attitude of witness. You should not forget your defence and should never put questions which may ultimately prove against you.

V R SHROFF (Expert)
07 December 2011

I do agree with Ajay Sethi, but with reservation.
In case you ask these Questions in cross examination, and if Complainant replies unfavorable to accused, you had it. She will tell lies, Case is proved against you , and you cut your own throat with your own sward!
My reply:
1] The case is within Limitation Period.
As loan Advanced by cheque to accused on 16-5-2005, Notice was issued on 13-6-2007, and complaint filed on 1-8-2007, everything within 3 years. So Legal Liability to pay Loan within 3 years. The Debt is undoubtedly within the limitation period.
2]If notice not served on his Address, and prove that he never recd Notice, you win
3] Presumption against accused, + amount pad by cheque, so debt / liability is confirmed.
4] Go through this Judgement 2007(2) dcr 612BOMBAY HIGH COURT Cr. Appli 2962/06, decided on 28-2-07
Maharaja Developers & anr Vs.
Udaysingh Ptatapsinghrao Bhonsle & anr. N.I, Act, 1881, Sec 138,142 and 145
Mandate to Magistrate under- held- Magistrate obliged and duty bound to examine upon oath complainant and his witnesses before issuance of process though there is solemn affirmation at the foot of complaint by complainant [Para -27]
As this case was lodged by POA, it is possible that POA verified on oath. POA cannot depose, is as per verdict of Apex Court, and in that case, Process issued can be set aside.
5]Go through this Citations 2008(1) DCR 65
Cri A No. 149/2001 and Cr. M.P. Nos. 5614 of 2002 & 356 of 2007 decided on 12.07.2007
Er S Karuppusamy Vs. C. Sugumar
N.I.Act, Acquitted, Issued undated and unnamed cheque- Only the amount and Signature admitted- Fact also admitted in cross-exam of Complainant. – Loan Transaction- Consideration of-held- It cannot be said that ingredients of section 138 of n.i. act attracted to warrant conviction. – no interference- appeal dismissed [Para 8-9]
2007(1) DCR 711
Cri petition no 86/2005 decided on 5-5-2006
N.I, Act, sec 138- Cheque presented after the validity period of six months- Dis honoured- Legality of – held Liability under sec 138 n I act could not be said to have incurred [Para 15-16]
In this case cheque was issued PDC ON 14-10-05 DT 14-11-05
Comp sad, accused told not to present
Revalidated by comp on 14-12-2006, presented on 13-06-2007, just on last day of 6 month lapse~!
Unluckily bank officials evidence not available, and they were already cross examined!!.
2008(1) DCR 188
“Legally enforceable debt or liability only implies that the debt or liability was recoverable through a court of law. “
In this case, there is no contract, it is not a loan from Moneylender having License, , THERE IS NO PROMISSORY NOTE.
8] DID BANK VERIFY SIGNATURE OF ACCUSED? Then did they agree that other contents of cheque is not in the handwriting of accused?
9] You must get contents and material alteration, approved by handwriting expert. Expert Report will help you.
10] Go for sequence of Cheques issued, cheque number, date issued, c Bank Pass book, and counter foil/ Record of Cheque issued, and prove that this particular cheque was issued before 1 1/5 year, and cheque issued thereafter were paid before a year, so this was stale cheque, not issued within 6 months of depositing it.
12] You might have Paid Loan by cash?? No liability thereafter, and relation strained , so no more transaction with Complainant thereafter.
13] I am milkman, and already supplied milk against the cheque issued of Rs. 42300/- I told not to deposit the cheque and return me, but Complainant did not return, materially changed it and deposited in bank.
14] I don’t know what you replied of 138 notice issued to accused? It will affect.
15] If comp do not examine herself [ POA not allowed] you win the case.
I am sorry, I cannot spare more time, and see you later.
Adv Shroff

Dr J C VashistaOnline (Expert)
07 December 2011

I appreciate the detailed advice of Mr. Shroff.
To add to the above, your cross-examination must target to find out the fact that your client had issued a blank cheque since a blank cheque as SECURITY issued by accused do not attract the provisions of Section 138 NI Act and there are number of citations on the subject.
Did you receive legal notice? if not (and you are able to prove U/S 313 Cr.PC)complaint shall have to be dismissed.

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