138 ni act
NEERAJ SHARMA
(Querist) 11 April 2013
This query is : Resolved
chq in question is of 28 lac
complainant in notice is saying she had invested in accused project but in complaint she is saying loan was advanced
(brief of cross examination)
its correct i invested in project of accused payment was demanded in installment.pursuant to demand complainant paid first installment of 15lac (14 cash 1cheq), complainant never inquired nor saw the document pertaining to project of accused as accused was in relationcomplainant husband had sold ancestral property n recived 10 lac at that relevant time ,complaiant cannot say her husband disclosed the said amount in itr
in relation to remaing amount complainant says that demand was recurring n i paid 2 lac n 3 lac by cheq n cash
further says i do not remember exact amount paid to accused by way of cheq or cash
the cheq were given by one aashish sharma(relative of complainant) through his own account .
cheque issued in first installment of 15 lac was also issued by aashish sharma
complainant has never placed any agreement or proposal or docs showing any such investment (there is a hand writen slip which in not in name of complainant stating i recived 20 lac n i will return 28 lac in case i cannot return i will transfer my property in YOURS name ) but she admits that this document is not in her name
further says except rs 2 lac which i handed over to accused from my saving entire money given to accused was money collected by me by running committee, i never maintained any account of the 3-4 committe run by me yearly income of my husband is 4-5 lac
neither i filed any suit for recovery nor any suit for specific performance
my husband and my mother were also present at the time of advancing cheques at complainant residence they are not in list of witness and complainant didnt issued any recipt regarding reciving of said cheques
complainat denies that cheq were blank n says all entries were made by accused
suggestion was....
the complainant picked thecheques from the residence of accused n missued cheques only sign are of accused rest filled by complainant
kindly advice what in defence should be brought by accused ..
ajay sethi
(Expert) 11 April 2013
if date and amount have been filled in by the complainant it amounts to material alteration of cheque . you need to examine hand writing expert to prove that amounts , date have been filled in .
DEFENSE ADVOCATE.-firmaction@g
(Expert) 11 April 2013
In the citation of Madras HC=
judgment of the Division Bench of the Kerala High Court in Lillykutty v. Lawrance 2003 (2) DCR 610 =
The burden is therefore entirely on the drawer of the cheque to establish that the date, amount and the payee's name are written by somebody else. Accused has not discharged this burden.
Apart from the interested testimony of the drawer, no independent evidence was adduced to discharge the burden.
SO YOU HAVE TO PROVE BY CREDIBLE EVIDENCE , ONLY YOUR WORD IS NOT SUFFICIENT THAT CHEQUE WAS BLANK .
You can still come out in this case since there seems to many gaps in the evidence of the complainant. Take steps with expert advice before closing your evidence.
prabhakar singh
(Expert) 11 April 2013
ADVOCATE DEFENSE is right.You can still come out
Devajyoti Barman
(Expert) 12 April 2013
You have to shift the burden of your initial liability to draw the cheque.
If you could prove that at the relevant point of time you had no debt to repay, you have good chance.
DEFENSE ADVOCATE.-firmaction@g
(Expert) 12 April 2013
How to do it that is million dollar problem.
Evidence affidavit has come and cross is over. This opportunity existed at the time of cross.
Now accused has to give evidence. There was no legal debt is negative evidence and how it can be given.
If the accused comes on witness box which many advocate venture to do is HARKARI of whole defense. Since any junior advocate will get admission in cross from accused that the cheque was from accused, signed, given by him and it is bounced. No payment made after notice.
So what can be done even at this late stage when even cross of complainant is over.
1) Recall the complainant for cross after proper preparation. Specific reasons WILL have to BE given otherwise it will be refused.
2) Only pre determined questions can be asked and in the process by expert cross certain admissions can be taken from complainant.
HOWEVER IT IS EASIER SAID THAN DONE, TAKE EXPERT ASSISTANCE TO ACHIEVE THIS.
R Trivedi
(Expert) 13 April 2013
Since the cross is over, if you fail to re summon the complainant for re cross, then also you have fairly good chances.
The Kerala High Court, especially HC Judge Hema (search for her Judgments) seems to be substantially inclined towards the principle of Innocence despite presumption under S.139, in fact in few of the Judgments, the initial onus has been put on complainant to prove the liability first then the presumption comes into picture (this to me looks right but quite debatable, why it looks right is that presumption is available to HOLDER, and HOLDER is defined in the Act, which is a possessor for consideration, so to become the holder first the consideration has to be proved).
In your case complainant seems to have miserably failed in supporting the liability, his cross is quite damaging when the account statements, source of money, absence of written document, non filing of ITR (there is an order in favor of accused on it) etc are not supporting the case of complainant.
Please specify under what circumstances cheque was given and what was the shape when given, this may also help in preparing your statement under S.313.
Please ensure that your statement under S.313 is made after discussions with good counsel, it should not be a routine one.
V R SHROFF
(Expert) 13 April 2013
Agree with Shri barman.
You need help of Hand writing Expert to support your defence.
DEFENSE ADVOCATE.-firmaction@g
(Expert) 13 April 2013
Let us see if the complainant is not aggressive and accused gets relief.
Now recent SC citations have closed many doors of customary defense.
FROM LATEST SC ( 2012 ) LAXMI DYCHEM CASE.
17. It was contended by learned counsel for the respondent that the respondent-company had offered to issue new cheques to the appellant upon settlement of the accounts and that a substantial payment has been made towards the outstanding amount.
We do not think that such an offer would render illegal a prosecution that is otherwise lawful. The offer made by the respondent-company was in any case conditional and subject to the settlement of accounts.
If however , the accused/drawer o f a cheque in question neither raises a probable defence nor able to contest existence o f a legally enforceable debt or liability , obviously statutory presumption under Section 139 o f the NI Act regarding commission o f the offence comes into play if the same is not rebutted with regard to the materials submitted by the complainant.
WE FEEL THAT ANY CHEQUE BOUNCE CASE CAN BE WON BUT FOR THAT CREDIBLE DEFENSE MUST BE RAISED FROM INITIAL STAGES.
R.K Nanda
(Expert) 13 April 2013
agree with experts.
