Share on Facebook

Share on Twitter

Share on LinkedIn

Share on Email

Share More

seema sharma ( manager)     15 March 2013

Accused falsely said cheque as security cheque.what to do

I am for a financial concern. a defaulter gave us cheque and later it bounced. in court he said that it was for security purpose. what are the positive points for us to win the matter.I mean how he will prove that the cheque is for security. and what should be our course of action.

cheque was not for security purpose



 20 Replies

gopal (Faculty)     15 March 2013

The cheque should not bounced, the recent judgment of Hon'ble Supreme Court stated that even the reason for bounce the cheque is not match the signature then also can take criminal action against the person. ask our experts here will direct you correctly regards
1 Like

LAXMINARAYAN - Sr Advocate. ( solve problems in criminal cases. lawproblems@gmail.com)     15 March 2013

Many NBFC and financial institutes misuse the provisions of NI 138  for recovery of purely civil dues.

 

Though secuirty cheque concept is given only by two benches of BOMBAY HIGH COURT still the accused have many other legal and secure defense to come out of any cheque bounce case.

 

All cheque bounce victims should note that the provisions of NI 138 are not for revocery of money but for punishment and hence in criminal case benefit of doubt is always to the accused.

 

R Trivedi (advocate.dma@gmail.com)     15 March 2013

Honorabel Supreme Court has ruled that S.138 shall not be applicable on security cheques. This order of honorable Apex Court is used by one of the benches of Mumbai HC.

 

Seema, since you are from complainant side, please note that proving a cheque as security cheque is a matter of defense and complaint certainly can be instituted. But once it is proven or admitted by you, that the cheque was issued for security purpose, benefit would go to drawer.

Prasun Chandra Das (Banker)     15 March 2013

If it is a security chq, then Sec 138 shall not apply. But of course there are other provisions available. I think (Advocates need to confirm) filing a money suit will be the best course of action.

R Trivedi (advocate.dma@gmail.com)     15 March 2013

Civil recovery remedy can go together with criminal complaint under S.138.

 

For the recovery of the cheque amount the relatively faster approach would be to file the summary case under Order XXXVII also. This is relatively faster.

DEFENSE ADVOCATE.-firmaction@g (POWER OF DEFENSE IS IMMENSE )     15 March 2013

R trivedi will you please details of  the SC citation referred by you about security cheque .

 

There is no such citation instead SC has recently said the return of cheque for any reason will attract  NI 138.

DEFENSE ADVOCATE.-firmaction@g (POWER OF DEFENSE IS IMMENSE )     15 March 2013

Originally posted by : gopal
The cheque should not bounced, the recent judgment of Hon'ble Supreme Court stated that even the reason for bounce the cheque is not match the signature then also can take criminal action against the person. ask our experts here will direct you correctly regards

Yes you are correct Mr Gopal SC in the decison  in -

 

 

 

CRIMINAL APPEAL NOS. 1870-1909 OF 2012

New Delhi; November 27, 2012

 

has closed all reasons for cheque bounce by accused except legal liability.

 

 

R Trivedi (advocate.dma@gmail.com)     15 March 2013

 

Supreme Court order
M S Narayana menon @ Mani Vs State of Kerala (4th July 2006)

Double Bench: S Sinha, P Naolekar

 

...............if a cheque is issued for security or for any other purpose the same would not come within the purview of Section 138 of the Act.........

 

Advocate defense;

 

There was no need for you to write the second part of your post. I am shocked that it is  almost 7 year old order by SC, subsequently used by Mumbai HC as well, and you are still unaware of it as a defense advocate.

 

DEFENSE ADVOCATE.-firmaction@g (POWER OF DEFENSE IS IMMENSE )     15 March 2013

It seems you are adamant -

Read the full judement not only lines  and words. Whole judgement has to be read-

 

We in the facts and circumstances of this case need not go into the question as to whether even if the prosecution fails to prove that a large portion of the amount claimed to be a part of debt was not owing and due to the complainant by the accused and only because he has issued a cheque for a higher amount, he would be convicted if it is held that existence of debt in respect of large part of the said amount has not been proved. The Appellant clearly said that nothing is due and the cheque was issued by way of security. The said defence has been accepted as probable. If the defence is acceptable as probable the cheque therefor cannot be held to have been issued in discharge of the debt as, for example, if a cheque is issued for security or for any other purpose the same would not come within the purview of Section 138 of the Act.

 

1 Like

R Trivedi (advocate.dma@gmail.com)     15 March 2013

Oh !!! 

YOU HAVE READ IT FULLY AND UNDERSTOOD IT GREATLY  !!

 

but as per you it seems even Mumbai HC also did not read the full order before using this order. Mumbai HC made the rule absolute for the subordinate courts of its jurisdiction.

 

For your knowledge there is word called obiter, the line by honorabel SC as mentioned in my post above is not an obiter. As a matter of fact even the highest bench of any HC will find it extremely difficult to term any statement of SC as obiter.

 

I very humbly request you, please do not deprive of your accused clients of this valuable defense if applicable to their cases.

LAXMINARAYAN - Sr Advocate. ( solve problems in criminal cases. lawproblems@gmail.com)     18 March 2013

 

Accused can come out of cheque bounce cases if proper care is taken from day one.

 

1)    This is a criminal case for punishment and not for recovery of money so all benefit of doubt will go to accused.

 

2)    Complainant make many many mistakes while sending notice and filing complaint and it is fully legal to take its benefit.

 

3)    Large no of advisors give this citation or that citation to give false hopes. Every higher court decision has to be read as a whole and have to understand the particular circumstances in which it was given. And most imp is if the trail court says it does not agree that particular citation is not applicable ,what the accused will do.

 

4)    We give full proof solutions to come out of the problem and providing solutions to the accused in any criminal case is fully legal and not banned by any law, rule or procedure.

 

 

5)    We do not publish cell nos, email ID etc etc., those who have tried all other methods are welcome and we assure you to put best efforts to solve your problems.

 

6)    Large no of otherwise simple law abiding people get trapped in this law since the clever complainants have devised methods to misuse it. Our efforts are to complete solutions not mere advice to come out of cheque bounce cases for the accused.

R Trivedi (advocate.dma@gmail.com)     18 March 2013

There are few people on this forum who have been writing:

1. Any cheque bounce case can be won.

2. Power of defense is immense {I may say power of offense (Prosecution) is equally immense}.

 

This amounts to giving false hopes to accused, because S.138 is one of those special laws where the onus is on the accused to rebut the presumption available to complainant. There is substantial amount of conviction under this act.

 

On the same vein they also argue and contradict that:

1. That S.138 is applicable on blank cheque bounce. (This is not fully true)

2. That security cheque is also covered under S.138. (This is not true at all)  

3. That S.20 is applicable on cheque.  (This is not true at all)

4. That trial court may not accept any citation of Supreme Court. (Trial court cannot overrule SC just by a statement)

(All these, which they accept, are against accused, one way they say all cases can be won and on other side they agree to above)

 

So my request to such people is instead of repeatedly writing such misleading statements that " Any cheque bounce case  can be won", they should use their experience come forward and give their valuable advise to querist. Mere statement that any cheque bounce case can be won, is not what accused/querist wants to hear, he wants advise, a way out. 

LAXMINARAYAN - Sr Advocate. ( solve problems in criminal cases. lawproblems@gmail.com)     18 March 2013

Pl give actual ref any cheque case handled by you on the kines suggested.

R Trivedi (advocate.dma@gmail.com)     18 March 2013

I am quite amused...

You claim to be the accused advocate, that means you should include any possible reasonable defense for accused in your armoury, but instead of doing that you are on a different trip altogether, you are not clear what you want to say, you are fully confused.

 

Take for example

 

1. Non applicability of S.20 is in the favour of accused..... But you say S.20 is applicable on cheques.

2. Non applicability of S.138 on security cheque is in favour of accused.... But you say S.138 is applicable on security cheques.

3. Trial Court has to consider all the citation given in defense.... But you say  what if trial court refuses.

4. You mention Supreme Court has in recent order included every dishonor, but you do not cite the adjoinder by Gyan Sudha Mishra, J, which favors accused in trial.

 

 No advocate who strongly supports accused would take up a stand oppposing above 4 points, but for you and couple of other people.  So please decide first what you want to say, do not contradict yourself. Just by repeating in every post that " any cheque bounce case can be won" and giving oppposing  arguments about the defense of accused will not serve any purpose, it only indicates your confusion. 

 

 


Leave a reply

Your are not logged in . Please login to post replies

Click here to Login / Register  


Start a New Discussion Unreplied Threads

LCI Learning Hindu Laws


Popular Discussion


view more »




Post a Suggestion for LCI Team
Post a Legal Query