U/s 138

devesh choudhary (Querist) 21 October 2011 This query is : Resolved
i had given cash hand loan Rs 1.6 to my friend in year 2007.no document executed.he paid Rs 25000/- year 2008 and 20000/- yr 2010.after 4.5 year(year 2011) he gave two cheque for balance amount which got bounced with memo stop payment.cheques are from old cheque book issued in year 2007.notice issued u/s 138.accused replied "lost cheques already informed in bank.no loan taken.cheque misused by complainant who somehow got my lost cheques."i have no document proof of loan. how to contest.

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ajay sethi (Expert) 21 October 2011
lost cheque book is bogus defence . an after thought . mere intimation to bank is not suficent . has he lodged police complaint ?

who has signed cheques? if accused has signed cheques presumtion that cheque has been issued by him .

if you have given cash loan how do you prove that cheque was in discharge of liability .

you have to prove that cheque was issued in discharge of debt due and payable .

in future consult a lawyer before giving loan . better spend some amount on legal fees than repent later

devesh choudhary (Querist) 21 October 2011
is presumption of 139 is not sufficient that cheque issued for debt liability when no written proof? since accused can not rebutt it by mere lost cheque theory

Shonee Kapoor (Expert) 21 October 2011
:-) The same query is posted with slightly diffirent version.

Regards,

Shonee Kapoor
harassed.by.498a@gmail.com

Guest (Expert) 22 October 2011
agree with Mr. Sethi and Mr. Choudhary

Nadeem Qureshi (Expert) 22 October 2011
Dear Davesh
FIR is mandatory for lost the cheques only informed the bank that the cheque has been lost is not any defence in eyes of law and the burdon of proof lies on accused, no need to worry and think about Mr. Sethi's reply

Sailesh Kumar Shah (Expert) 22 October 2011
accused replied is not maintainable. go ahead.......

Advocate Bhartesh goyal (Expert) 22 October 2011
I do agree with Mr Nadeem.

prashant pundhir (Expert) 22 October 2011
Lost cheque is a bogus defence as cleared by learned experts .The important part of the quary is that you have not any document for cash loan .So,for that the witnesses are sufficiant .

R.RAJENDRAN (Expert) 23 October 2011
Please issue a notice under section 138-B of the Negotiable Instrument Act and file a police complaint and get the F.I.R.
After that, inform us the development.

prabhakar singh (Expert) 24 October 2011
On the facts stated by you here ,i find the facts analysed as below:..
1]The loan given in 2007!
2]part payment made with in limitation in 2008,if proved,will extend the limitation up to 2011.
3]part payment made with in limitation in 2010,if proved,will extend the limitation up to 2013.
4]then cheques were issued for an enforceable debt PROVIDED YOU CAN IN ABSENCE OF ANY DOCUMENTARY EVIDENCE PROVE BY ADDUCING ORAL EVIDENCE THAT DEBT WAS ADVANCED AND AFORESAID PART PAYMENTS WERE MADE AND FOR BALANCE DUE THE CHEQUES WERE ISSUED.

YOU MUST ISSUE NOTICE AND FILE COMPLAINT EVEN 420 SEEMS ATTRACTED AS HE STOPPED THE PAYMENT ON GROUND OF LOOSED CHEQUE BUT NO FIR OF LOSS WAS LODGED BY HIM.

AA RAMAKRISHNAN (Expert) 27 October 2011
If you have no other dealings except the present one a written document for giving a hand loan is not manadatory. Repayment by cheques in instalments is sufficient to prove the dealings. The loosing of cheque is not a ground for defence as he is supposed to take proper care of the custody of cheques. You have a good case if properly cotested.

Sri Vijayan.A (Expert) 27 October 2011
I strongly agree with Mr.P.Singh.
Nice analyse by him.
It is a tough and good case.

U/s 138

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