Section 138 negotiable act
arun
(Querist) 03 August 2013
This query is : Resolved
A person has filled a complaint against a my friend for the bouncing of cheque amounting of some lacs rupees.
There is no business or other relationship between the complainant and accused.
Complainant stated that he/she has given the amount in cash and no eye witness was persent at that time and no withdrawal of money from any bank account on that date. Cash was at his/her home.
Lawyers are saying settle the case.
My friend has not taken any money from him/her. He/she took the cheque fraudulantly and also stated that it was filled up by him/her itself.
I want to know whether my friend suppose to give the money to him/her or whether he may be able to win the case in court since there was nothing except the fact the complainant is claiming giving the money in cash.
Nadeem Qureshi
(Expert) 03 August 2013
Dear Arun
it depend on the accused to prove that there is no liability on him/her or any legal debt. if he/she proved thn he/she can win the case otherwise not.
feel free to call
arun
(Querist) 03 August 2013
Thanks Nadeem,
Can you tell how can the accused proved that he has not taken any debt from him/her since the complainant stated that it was given in cash and no other person was present at that time except the complainant and accused. Further no documentation was done.
prabhakar singh
(Expert) 03 August 2013
As it is a case of advancing 'some lacs rupees',a transaction prohibited by I.T.Act
where under no single cash transaction above 20k can take place,the accused should cross examine complainant wherefrom he got so much of money?in which bank it was? When was it withdrawn?an individual is not allowed to hold cash more than 50k under I.T.Act.
And accused-drawer should have a reasonable explanation as to why cheque was issued then?
arun
(Querist) 03 August 2013
The complainant fraudlently obtained the cheque and it was filled up by the complainant itself and accepted by the complainant itself(since the writing on the cheque is different). Kindly advise how can the accused protect himself.
sivakumar.k
(Expert) 03 August 2013
If The complainant has not have any other doc apart from cheque which supporting any legal debt alleged, you can win
Rajendra K Goyal
(Expert) 03 August 2013
How fraudulently the cheque was taken from the drawer. There seems no reason to issue blank signed cheque to some person. The experts have advised so many cross to be asked during proceedings. Engage a good local lawyer.
DEFENSE ADVOCATE.-firmaction@g
(Expert) 03 August 2013
1) There was an interesting judgement from a imp HC that far cash loan there is fine but it is not illegal.
3) Very recent JULY 13 SC citation has confirmed that when a cheque is issued than it is also presumed that it was for a legal liability.
It has thus confirmed RANGAPPA case which departed from JANARDAN BHAT case in respect of presumption of legal liability also and converted acquittal in conviction.
STILL ANY CHEQUE CASE CAN BE WON BY ACCUSED ON MANY OTHER ISSUES WHICH ARE SIMPLE AND SURE .
A HARD WORKING LEGAL EXPERT CAN ALWAYS FIND THEM AND CAN USE FOR BENEFIT OF ACCUSED.
arun
(Querist) 03 August 2013
This cheque was taken by some other person and handed over to the complainant. It is accepted by the complainant that it is filled up by him only not by the drawer. Further except statement of the complainant that he has given a cash (Rs, 5 Lacs) no other proof produced by him.
Further the complainant in his statement accept it was not withdrawn from any bank.
ad. creaminall
(Expert) 03 August 2013
this is a matter of evidence and accused has to prove that the said cheque is not issued in discharge of any debt and/or liability and for the same he/she has to engaged some lawyer to contest.
V R SHROFF
(Expert) 03 August 2013
If complainant fails to prove that
[1]He had 5L cash to pay accused
[2] That accused was in need, and paid him for his moral requirement
[3] The act of complainant was that of a prudent man
[4] Apex court remarked: No one will pay such amount without interest to a stranger!!
[5] was Loan , if any was within a Limitation period of 3 years.
There are many valid defences, and all depend upon Evidence.
In one of my case case at Rajasthan, It was decided in my fvr on basis that a complainant do not know even the names of accused family member or his residential address,nor hv any Pro note or entry in IT return, And claimed he paid it on 28 Feb obtain cheque dt 1 Mar , very next date, are not a act of prudent man, and cannot be relied.
Probability of 5L CASH advance must be attacked .
Rajendra K Goyal
(Expert) 03 August 2013
Useful discussion about cheque can be referred at following thread:
http://www.lawyersclubindia.com/forum/NI-ACT-SUPREME-COURT-GUIDELINES-25843.asp#.Uf0HsW2Lq_I
Raj Kumar Makkad
(Expert) 06 August 2013
You have better chances to win the case keeping in view the failure of the complainant to tell the source of money and any relationsnip with the accused and advancement of any alleged loan.
DEFENSE ADVOCATE.-firmaction@g
(Expert) 06 August 2013
1) Capacity to pay, cash loan etc defenses are very week defenses.
2) Recent trend of SC Judgments is that -
the presumption under Section 139 of the Negotiable Instruments Act, 1881, includes the presumption of the existence at a legally enforceable debt or liability. That presumption is required to be honoured, and if it is not so done, the entire basis of making these provisions will be lost.
NEW DELHI; JULY 2013. SUPREME COURT OF INDIA.
AND BY THIS CITATION ACQUITTAL BY HIGH COURT WAS CONVERTED IN CONVICTION.
3) The defense should TAKE some other proper / cogent defense to show that there was no liability.
Advantage can also be taken from various technical mistakes which can be shown after going through the record.
