138 ni act
ckanta
(Querist) 04 July 2014
This query is : Resolved
Sir,
I have filed one case against my husband collegue u/s 138 ni act for 65000.
He has taken a defence that the cheque has been handed over to my husband 10 years ago as security against one loan which he has already repaid but my husband did not returned the chequueand now I have used that cheque However he did not have any document or anything to prove the same. I have also taken some loans from cooperative societies and some legal action is also pending against me due to default. Howver he is using that point against me by summoning those societies in DE to prove that I have no financial capacity to lend the amount but the fact is i have lent him money in his bad time as friendly loan only.
Please tell me whether his defence will substantiate or i will be succeding as he has issued the cheque and presumption is also in my favour.
thanks
Devajyoti Barman
(Expert) 05 July 2014
The other cases pending against you has no nexus with the present case.
Dr J C Vashista
(Expert) 05 July 2014
Accused in any case u/s 138 NI Act, has very limited defence point(s) wherein one of them is that the subject cheque was issued for the purpose of security for some loan, which the accused has onus to prove, nothing to worry and nothing new in such case(s).
However, you are to demolish the DE in cross-examination of witnesses of accused.
Sudhir Kumar, Advocate
(Expert) 05 July 2014
I have filed one case against my husband collegue u/s 138 ni act for 65000.
Reaction
you never stated whether the case is true of not
You have also not stgated what you alleged in the case as to how/why he is liable to pay.
Sudhir Kumar, Advocate
(Expert) 05 July 2014
He has taken a defence that the cheque has been handed over to my husband 10 years ago
Reaction
Difference in age oif cheque and ink can be proved by foresnsic examination
Sudhir Kumar, Advocate
(Expert) 05 July 2014
as security against one loan which he has already repaid but my husband did not returned the chequueand now I have used that cheque
Reaction
You did not say whether his contention is true or not ?
You also did not say what your husband has to say?
Sudhir Kumar, Advocate
(Expert) 05 July 2014
However he did not have any document or anything to prove the same.
Reaction
You never said whether you have or have not any document to prove his liability.
You never said if you are “holder of cheque” or holder n due course”?
Sudhir Kumar, Advocate
(Expert) 05 July 2014
I have also taken some loans from cooperative societies and some legal action is also pending against me due to default.
Reaction
SO you badly need money
You never said whether similar cases have come against you as well.
Sudhir Kumar, Advocate
(Expert) 05 July 2014
Howver he is using that point against me by summoning those societies in DE to prove that I have no financial capacity to lend the amount
Reaction
SO you are not afraid of the truth coming before court
Sudhir Kumar, Advocate
(Expert) 05 July 2014
but the fact is i have lent him money in his bad time as friendly loan only.
Reaction
you never sated when you lent him money and when you yourself went in financial crisis.
You never said whether you have any document to prove timing of loan given by you
Sudhir Kumar, Advocate
(Expert) 05 July 2014
Please tell me whether his defence will substantiate or i will be succeding as he has issued the cheque and presumption is also in my favour.
Reaction
your advocate privy to full facts and document can only give successful advise in this regard
P. Venu
(Expert) 05 July 2014
A petition under Section 138 of the NI Act is governed by CrPC. The complainant has to prove his case beyond reasonable doubt. However, the accused, if he puts forth an alibi, has lesser onus of proof i.e. preponderance of probability.
It is observed that Section 138 is the most abused provision. It has become a weapon in the hands of the usurious money lenders. The valuable lesson is that in the prevailing social milieu in our country it was a bad idea to legislate dishonour of cheque as a criminal offence.
ajay sethi
(Expert) 05 July 2014
your bank statement at that material point would show that at time of giving of loan you were financially sound . you have strong case on merits
Rajendra K Goyal
(Expert) 05 July 2014
Full case file has to be referred to guess any conclusion. consult your lawyer.
Guest
(Expert) 05 July 2014
Bravo, merely 8 (eight) answers by Mr. Sudhir Kumar for a small single quesion of the querist, "whether his defence will substantiate or i will be succeding as he has issued the cheque and presumption is also in my favour"!
V R SHROFF
(Expert) 05 July 2014
Prove that series of cheques were used and paid before ten years, and at that time u hv sufficient fund.
Cheque being stale, ni will fail// time / limitation
T. Kalaiselvan, Advocate
(Expert) 06 July 2014
Until and unless you have substantiated the legally liable debt, it will be difficult to succeed in the case especially when the defence is moving very strongly against you by creating more and more grounds that are against you. Be in touch with your lawyer.
