Ni act 138 case

Kishor Thakkar (Querist) 12 June 2016 This query is : Resolved
my client is a service woman and her husband doing business and he issued cheque with taking signature of her wife to his friend for the borrowing some money and wife has come knowledge regard after the notice serve and they are not replying on notice and now case on the cross examination of complainant so please provide your suitable defense or some IMP questions regard the cross of complainant as early possible, its really we require your help as we show your answer regards query's on the site so please suggest the best.

MY IMAIL ID IS kishee97@rediffmail.com

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Devajyoti Barman (Expert) 13 June 2016
on the scant information no questions for cross examination can be provided with.

Sudhir Kumar, Advocate (Expert) 13 June 2016
Not clear why cheque was issued and why notice is issued

Pradip Bajaj (Expert) 13 June 2016
Only after perusal of the Complaint.

RAVI K GOUD (Expert) 13 June 2016
@ Author

Your query is not clear 'cause

After service of notice if they are not answering: please clarify the following:

1. Whether they are served with summons or not?

2. Whether they filed their vakalat?

3. If not, who is cross examining the complainant?

Only on appearance of the accused before the court, cross examination of the complainant can be done otherwise it may be at pre-summons stage.

Rajendra K Goyal (Expert) 13 June 2016
Full case file need to be referred, discuss with your lawyer.

R.K Nanda (Expert) 13 June 2016
Query not clear.

P. Venu (Expert) 13 June 2016
The information furnished is incomplete.

H.M.Patnaik (Expert) 13 June 2016
Pl. consult your attending counsel locally.

Dr J C Vashista (Expert) 15 June 2016
I agree with experts, nothing can be suggested without going through the case file.
Besides the valid questions raised by expert Mr. Ravi K Gaud, which are yet to be replied by you, please let me know:

Why did she (your client) preferred to remain silent on receipt of demand notice?

She has no privity to the loan/advance (presumably) consequently, there is no "legally enforceable debt/liability" of the accused; you may consider and take it a defence and cross-examine the complainant accordingly.

Kishor Thakkar (Querist) 15 June 2016
dear All thanks for your reply but my simple questioner is only that my accused is doing service in private school and her husband have business of RO non packaged water and he took some money from complainant and returned but blank signed cheque of accused not taken back as a friendly relation and after all matter complainant made 138 case and as notice received accused and her husband made efforts without given written reply to complainant and we presented before the court and filed vakalatnama and given recall application of complainant and its accepted by court but now 138 cross is some difficult for me and therefore we required some solid or really work full question for the 138 from you any body if possible, and thanks for your early precious reply

P. Venu (Expert) 15 June 2016
What was the reply given to the Notice?

Pradip Bajaj (Expert) 15 June 2016
BETTER YOU CONSULT WITH YOUR APPOINTED LAWYER. HE WILL KNOW THE FACTS AND MAY PROCEED AND ADVICE YOU IN THIS MATTER.

Kishor Thakkar (Querist) 16 June 2016
what we stated in my massege that accused not replyied on Notice and I m himselh Advocate of him and my self required some cross examination quistions from the experts so please refer whole story on your time and give proper reply on it if possible early

Ajay Bansal (Expert) 16 June 2016
Paste the copy of the complaint here.

RAVI K GOUD (Expert) 16 June 2016
Mr. Kishore you better concentrate on the following:

1. As the husband paid the loan, there is no actual liability which is enforceable.

2. But as the complainant filed 138 case on the cheque given by the accused (wife), develop your questions on "what for that cheque is given" whether for the security of the loan taken or for the discharge of the liability?

If it is for the security purpose then you should try to prove the repayment of the loan by the husband. If you are able to prove the same, then purpose of giving the security cheque and contingency of non-payment would not arise. So there would not be any value to the cheque given after payment of loan as the contingency does not arise.

If the loan is not repaid then the existence of the purpose for which the cheque is given would come in to picture .

So you should try to get, the repayment of the loan, admitted by the complainant and the cheque is given for the security purpose only and the cheque had to be returned by the complainant once the loan is repaid.

You should derive the questions in the cross examination as aforesaid and try to take defense by not admitting the purpose of giving the cheque towards the discharge of liability. And it is given only for security purpose. And try to push the burden on the complainant to prove the purpose for which the cheque is given.

Dr J C Vashista (Expert) 17 June 2016
As I told you in my earlier reply to your question your defence has to be on the lines of there is no privity to the loan/advance/ consideration or payment of any amount for which Opposite party has relied, just demolish his (Opposite's) stand of purchase of material/goods against the cheques.
Conversely, the subject cheque was given by husband of accused (your client) for security and there is no "legally enforceable liability" of the accused.

Kishor Thakkar (Querist) 17 June 2016
thanks for every one but my cross examine required questions steel on the head so if you need some specification regard my complain of notice which in Gujarati language then provided me personal mail id then I will upload and after that study please suggest the same if possible

Ni act 138 case

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