Defence against sec-138
lingaraj kalawad
(Querist) 19 June 2010
This query is : Resolved
Hello sir,
PLEASE SEND UR VALUABLE SUGGESTIONS REG DEFENCE:
Mr.X(MY BROTHER) HAS TAKEN A LOAN AT (BANK)
BY MORTGAGING THE PROPERTY,HE WAS RUNNING
A SHOP.IN DUE COURSE HE BECAME A
DEFAULTER.IN THE MEANWHILE I WAS GIVEN A
CHEQUE IN THE NAME OF X'S SHOP FOR SOME
OTHER PURPOSE WHICH I DID NOT CLLECTED
BACK.MR.X HAD GIVEN THE SAME CHQ TO THE Y
(BANK)WITHOUT BRNGNG TO MY NOTICE.ACTUALLY
I AM NOT A GUARANTOR NOR A SURITY TO THE
SAID LOAN.NOW THE BANK 'Y' HAS FILED A
CASE AGAINST ME(SINCE ONE YEAR)& TILL DATE
THE BANK AUTHORITIES HAVE NOT DONE
EVEDENCE ON THEIR SIDE.BANK HAS SANCTIONED
THE LOAN ON THE DATE PRIOR TO MY CHQ DATE
(ABOUT 1 WEEK).THERE IS NO LEGALLY
ENFORCEABLE DEBT OF MINE AND I AM NO WAY
CONCERNED TO THE SAID TRASACTION.PLEASE
SEND YOUR VALUABLE SUGGESTIONS IN THIS
REGARD SIR.
Regards
LINGARAJ.
Adv Archana Deshmukh
(Expert) 19 June 2010
Liability u/s.138 NI is attracted only when the cheque was given for a legally enforceable debt. Have you replied to the notice of the bank u/s. 138 before filing the case? File the copy of that reply in your evidence or exhibit it in the cross exam of the bank officials. Extract in the cross examination of the bank officials that you were not concerned with the loan transaction and did not give them the cheque. Also file the evid regarding your transaction with your brother for which you issued the cheque.
adv. rajeev ( rajoo )
(Expert) 20 June 2010
I do agree with archana. Heavey burden lies on the bank to prove that you issued a cheque to discharge the liability of X and bank has to prove the transaction between you and the bank.
Contest the case harping upon the documents.
DEFENSE ADVOCATE.-firmaction@g
(Expert) 20 June 2010
The court gives judgment based on evidence on record. So what are pleadings , what affadavit filed. Based on these materials you have opportunity to demolish the evidence of the complainant if proper leading questions are framed.
WITH DUE RESPECT TO EARLIER LEARNED EXPERTS ; ONLY GOD CAN HELP YOU.
lingaraj kalawad
(Querist) 20 June 2010
Thans a lot to all of you sir/madam for your quick and valuable suggestions.
