138 ni act burden of proof
dawood ahmed
(Querist) 01 January 2012
This query is : Resolved
Sir, First of all I wish a very happy new year to all the people in and behind the LCI.
In 138 NI Act cases as per S.139 of the act the burden lies on the accused/drawer of the cheque to establish that the cheque was not issued in discharge of legally enforceable debt. But as I remember there are rulings by high courts and more purticularly the A.P. High Court where in it is ruled that before the burden u/s 139 is cast upon the accused the complainant has to discharge initial burden by proving the existence of debt or other liability against the accused in favour of the complainant.
In a case on hand the complainant says that she advanced aloan of Rs. 100,000/- to the accused and further contends that there was no writing/execution of any note or receipt and also says that there was none other than the complainant & the accused were present at the time of advancing the amount in cash to accused. The accused denies all that but the demeanour of the learnhed JMFC shows that he feels the burden now shifted to accused and he should prove that the cheque was not issued in discharge of the saud debt. In fact the accused admits his signature on the cheque and its delivery to complainant but it was given to her to gain time from her creditors by showing the cheques but mean while some disputes arose between them and the complainant filed the case by mis utilising the said cheque. An this has been our defence right from the day we received the 138 notice we replied the same accordingly.Please express your opinion & discuss the pros and cons of the case.
V R SHROFF
(Expert) 01 January 2012
You states "In fact the accused admits his signature on the cheque and its delivery to complainant but it was given to her to gain time from her creditors by showing the cheques but mean while some disputes arose between them and the complainant filed the case by mis utilising the said cheque."
Misguiding Her creditor is also immoral.
You must prove, she had no money with her to lend your client, and that when she herself is in debt, why will she pay you?? You had no need, nor it increase your bank balance, nor you spent during that time for anything.
Yo have to prove she was bank-rupt that time she requested you to issued her a cheque. In fact she had no cash, nor given it to you.
DEFENSE ADVOCATE.-firmaction@g
(Expert) 01 January 2012
And I will add -
1) replying of notice is major mistake.
2) admission of signature and delivery of cheque is another blunder.
So even at this late stage first do as suggested by Mu Shroff that the holder of cheque had no money to lend. For that ask for accounts and IT returns. Lower court may not agree so move fast and go for revision on this point alone to gain time.
If bank witness is still not given there you have a good opportunity to disprove the claim.
Power of defense is immense but in careless ness it is lost.
Raj Kumar Makkad
(Expert) 01 January 2012
I somehow do agree with the line of JSDN and further add that the major defence for you can be a supreme court ruling vide which it has been held that if the loan amount is more than Rs. 20,000/- then the same should be given to the accused by way of cheque and if complainant had not given such amount in cheque and still claiming given in cash then no offence is made out against the accused under section 138 NI Act as loan is not established in the given case.
I can tel you this citation on tomorrow, if you ring me during lunch time (1 PM to 1.30 PM or after 3 PM to 4 PM).
dawood ahmed
(Querist) 01 January 2012
Sir,
How to prove the lendor had no money? She (the lendor/complainant)says the money was readily available at home and she is not an IT assessee.she says she had accumulated this amount for her daughters marriage.
One interesting thing she admits is as on the date of advancing this case loan amount the accused was already due to pay Rs.1,20,000/- towards another previous loan to her and the another cheque he had issued to her in discharge of the same bounced and in reply to the notice issued with regard to that cheque the accused had denied the liability of said Rs. 1,20,000/- and contended that he had issued two cheques each for Rs. 1,20,000/- and 1,00,000/- (the present case cheque) the accused also demanded the return of the said cheques and having received the reply notice the complainant admitted to having not issued any rejoinder to the reply.
So, under the circumstances the court has also to consider that would a prudent man will give subsequent loan of Rs.1,00,000/- to the accused who failed to repay and denied the earlier loan of Rs.1,20,000/- and would the lender accept the cheque bearing the same number which the accused has already alleged to have already issued to her earlier (even before advancing the case loan of Rs. 1,00,000/-) and she is in possession of the same?
I hope these circumstances are sufficient to rebut the presumption drawn u/s 139 against the accused.
please comment Sir,
With regards.
dawood ahmed
(Querist) 05 January 2012
DEAR BARMAN SIR,
I HOPE THE ATTENDANT CIRCUMSTANCES OF EARLIER LOAN, FAILURE OF ITS REPAYMENT, REPLY NOTICE DEMANDING THE RETURN OF TWO CHEQUES INCLUDING THE SECOND CHEQUE EVEN PRIOR TO THE ALLEGED ADVANCING OF HAND LOAN AND ALLEGED ISSUING OF THE SECOND CHEQUE-AMPLY SHOW THAT THE ACCUSED HAS DISCHARGED HIS BURDEN IN REBUTTING THE PRESUMPTION DRAWN UNDER 139 NI ACT. I SUPPOSE THE REBUTTAL EVIDENCE NEED NOT BE BEYOND REASONABLE DOUBT AND IT WOULD BE SUFFICIENT IF IS PROBABLE.
DEAR JSDN SIR,
THERE WONT BE ANY GAIN BY PROLONGING THE MATTER. IN THE BACKGROUND OF THE CIRCUMSTANCES OF THE CASE I THINK IT IS BETTER TO TAKE CHANCE TRY TO CONVINCE THE COURT AS TO HOW ABSURD AND IMPORBABLE IS THE VERSION OF THE COMPLAINANT.
PLEASE COMMENT
DEAR RAJKUMAR SIR,
I AM SORRY, I COULD NOT RING YOU FOR GETTING THE APEX COURT RULING REGARDING THE BAR ON PAYMENT OF MORE THAN RS.20,000/- IN CASH AND NON APPLICABILITY OF NI ACT IN SUCH CASES. IF YOU HAVE FOUND THE SAID RULING SIR KINDLY POST IT IN THIS THREAD IN REPLY
THANK YOU SIR.
