Defence for cheque bounce
N.Damodaram Naidu
(Querist) 16 September 2014
This query is : Resolved
Dear sirs,
I came with the old problem with new developments during the trial. A person who has been prosecuting under section 138 of N.I. for bouncing a cheque drawn for a sum of Rs.600000/-. Now the accused took the defence that he did not give this cheque to clear any debt and in fact he lost this cheque along with two other cheques two months before the date of the present alleged cheque and in support of that he produced a certificate got from the station house officer of a police station near to him by managing the S.H.O. The police officer came to the court and gave evidence that the accused gave a complainant regarding the lost of cheques and the cheque in question is one of the three cheques. He further stated that he gave him a non trace certificate. But the police officer did not enter the details in any record at the police station regarding receipt of complaint, issuance of certificate, findings of investigation and even he did not register F.I.R.
Now the question is that the certificate given by the police without making entries in concerned registers is a valid one? Is it authentic to produce before a court of law in support of evidence?
Please help me in this regard with citations of similar cases if any settled before the honourable Apex court.
Devajyoti Barman
(Expert) 16 September 2014
Sorry citations are not supplied here.
Advocate Bhartesh goyal
(Expert) 17 September 2014
Evidence of SHO has not been supported by any official document like,FIR and complaint so said evidence is not reliable and acceptable.
DEFENSE ADVOCATE.-firmaction@g
(Expert) 17 September 2014
Still it will add to circumstantial evidence against complainant.
Most imp the complainant has to prove legal liability mere bounced cheque does not prove. legal liability.
N.Damodaram Naidu
(Querist) 17 September 2014
Dear Advocate Defense,
Is the cheque itself not enough to prove legal liability as it has the signature and writing of other contents of the accused? If so what else I have to prove. Please suggest me in this regard.
Devajyoti Barman
(Expert) 17 September 2014
Onus of proof of absence of discharging of debt while drawing the cheque lies on the accused persons not upon you.
DEFENSE ADVOCATE.-firmaction@g
(Expert) 17 September 2014
Only existence of a cheque means liability , this hypothesis has been rejected by APEX COURT even in cases where conviction was confirmed by all lower courts.
Rajendra K Goyal
(Expert) 17 September 2014
Well advised by the experts.
Citation is not provided in the section.
DEFENSE ADVOCATE.-firmaction@g
(Expert) 17 September 2014
FOR THE BENEFIT OF ALL ACCUSED IN CHEQUE BOUNCE CASES.
APEX COURT HAS HELD IN RECENT CASES THAT MERE BOUNCE CHEQUE IS NOT ENOUGH , IT MUST BE SUPPORTED BY VALID LEGAL AGREEMENTS FOR DUES.
FOLLOWING ARE TWO SC DIRECTIONS WHILE SETTING ASIDE HIGH COURT ORDERS.
In John K. John case of 2007, Supreme Court held:
The High Court was entitled to take notice of the conduct of the parties. It has been found by the High Court as of fact that the complainant did not approach the court with clean hands. His conduct was not that of a prudent man.
Why no instrument was executed although a huge sum of money was allegedly paid to the respondent was a relevant question which could be posed in the matter. It was open to the High Court to draw its own conclusion therein. Not only no document had been executed, even no interest had been charged
.
B) :- CRIMINAL APPEAL OF 2012 in the case of
Marykutty …
. There was no reliable documentary evidence adduced by the complainant to hold that a sum of Rs.25 lakhs was due to him warranting execution of Exhibit P-1 cheque.
P. Venu
(Expert) 17 September 2014
In most of the cases under NI Act, the complainants seldom approach the courts with clean hands.
R.K Nanda
(Expert) 17 September 2014
nothing to add more.
V R SHROFF
(Expert) 17 September 2014
can examine certificate// complaint old/ new c experts..
this will add to story of accused..
