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P P R Kumar (Advisor)     12 March 2012

Another 138 ni conviction

Respected Sirs,


I am presenting to you the written arguments (attached) in a 138 NI case where conviction was given. Please let me know your valuable opinion on the next step. It is a ICICI case where on the date of issue of cheque there was no liability as another cheque was given which got cleared. The bank kept the cheque with them and mind you did not present at all and presented the cheque exactly in the 6th month. The bank was asked to return the cheque and they have not given it back and used it for continuing liability after the date of the cheque.

In the cross examination the complainant stated clearly that there was no legally enforceable debt on the date of issuance of cheque. Still conviction, How?





 19 Replies

Kiran Kumar (Lawyer)     12 March 2012

you have really done hard work on your matter.


following is the link of a judgment, which will help you out




Dear Mr.Kumar,

       I have briefly gone through the attached arguments of the defence council,and also the judgement attachment provided by Mr.Kiran Kumar.Afte thourough reading of the documents in the evening ,I will try to provide you a possible solution.

DEFENSE ADVOCATE.-firmaction@g (POWER OF DEFENSE IS IMMENSE )     13 March 2012

Since there is conviction in this case go far revison.


just short list the main points and stess on them in revision.

Ankit @mka.asr (Prop)     05 April 2012

sir, what will happen if session court also dismiss appeal in Ni138 and retain conviction of 2 years(imposed by lower court). Then in how many days convicted person can file bail papers in Highcourt? What is the risk factor of arrest after appeal's dismissal in session court?


Dear Kumar,

One important point to be noted is that the statement of the complainant,no legally enforcable debt ,when the cheque was issued. Why was this point not stressed by your advocate.The complainant has given you a chance to recover.But still the lower court has not thoroughly,heard the arguments.Something missing somewhere.Go for an appeal immediately and if your advocate uses his brain,you can expect relief.Let us the outcome of the sessions court and think about the rest afterwards.

P P R Kumar (Advisor)     05 April 2012

That point was stressed even in oral arguments still the conviction. That is what I do not understand the judgement says that there were transactions after the check issue date and hence it is legally enforceable date on date of presentment of cheque without thee complainant proving with cogent evidence that there was legally enforceable debt after the cheque date when the same was rebutted by the accused with evidence of non legally enforceable agreement and also elicited from the complainant in his cross.

One more thing is even if the cheque amount is 29.50 Lacs and conviction. The sentence awarded is SI one year and Rs. 10,000 fine. Now tell me has the holder of the cheque got justice or the accused has got justice. I did not understand the judgement if he felt that there was a cheque and legally enforceable debt why was there no compensation awarded to atleast compensate the complainant.

Sometimes we have a law made like the 138 NI act where the correct techinicalities are not spelt out even by the supreme court of india in various judgements. Preponderance of probabilities and presumptions of legally enforceable debt as stated by the supreme court is a very grey area but whereas the actual act is very technical in nature. This confuses everybody inclusive of judges in lower court. Hence 138 is a bailable offence. But still the emotional upheaval of the accused / complainant in various cases cannot be measured in such cases.

recovery suits are still the best way for money recovery and we know it will take time to get judgements and in 138 another set of new fast track courts are creating more menace by giving non technical judgements.

We will let you know the status of the appeal. The sentence has been suspended pending appeal as of now.


Dear Mr.Kumar,

So even after this particular cheque bounced,you continued transactions with the complainant.Apart from the cheque amount ,it is the descretion of the judge to award penalty.Your analysis of section 138  is good,but the is designed in that way.Avery minute technical flaw from the complainant can make the case favourable to the accused and vice versa.Good luck  for the appeal.

P P R Kumar (Advisor)     05 April 2012

Dear Sir,

No transactions with the complainant after cheque bounce. The case is like this when the debt was Rs. 30.50 Lacs my office gave a cheque of Rs. 29.50 Lacs instead of Rs. 30.50. On the same day my office issued another cheque of Rs. 30.50 Lacs instead of giving only anew cheue of Rs. 1 Lac. The second cheque got passed and they kept the cheque with them and they have not returned the cheque and put it exactly 6 months after the date of the cheque and there were only a 5 lacs transaction which was repaid vide cheque which also passed and the exact liability on the date of presentment of the cheque is 19 Lacs odd. We also stressed this point.

We understand the discretion of the judge and we just on the face of it the judgement looks a lose-lose situation both for the complainant and accused. There is no compensation in the judgement at all.

Thanks for the compliment I am obliged.

P P R Kumar (Advisor)     05 April 2012

One more thing which baffled me was that the judgement states that we elicited from the complaintant in the cross as a stray elicitation hence of no value. How can it be stray when the complainant in the witness box has stated the same. Then the whole statements have to be thrown out and not considered why only this elicitation, this was clearly confusing.


Dear Mr.Kumar,

Don't get confused.Concentrate only on the appeal and proceed further.

R Trivedi (advocate.dma@gmail.com)     08 April 2012

In general banks do not create false liability !! One thing is not very clear from your submission, that probably lost you the case..


1. Is there actually due shown by the Bank to the tune of around Rs. 30 Lacs ? You staet that one cheque of around Rs. 30.5 Lacs got cleared in place of cheqie in question, so it quite clear that liability is not present or did you buy more oil after that ? 


2. Please see the Bank statement or HPCL statement and let us know what the final liability was at the time of cheque date.



P P R Kumar (Advisor)     09 April 2012

Dear Sir,


Your questions are valid and replied accordingly.

1) Yes we bought more oil to the tune of 5 Lacs and paid for 5 Lacs by cheque and it passed. That is what the judgement says that there were transactions and hence presumed liability on and after the date of cheque till its validity. How U/s 138 NI such inference is possible when the due amount itself is questioned and elicitied from the complainant.

2) ZERO liability on the date of the cheque as the 30.5 Lacs cheque has been cleared as per the ICICI statement itself that is why the complainant elicited that there was no legally enforcceable debt on the dat eof the cheque.

R Trivedi (advocate.dma@gmail.com)     09 April 2012

My Dear PPR Kumar,


ICICI Bank would have shown some liability attached with the cheque. They must have argued that to clear so and so liability a cheque was issued. Are you trying to tell us that ICICI bank has won a case when there was honestly no liabilty ?



P P R Kumar (Advisor)     09 April 2012

Dear Sir,

I am only arguing that as on the date of the cheque there was no liability as the cheque was supposed to be given back as they had two cheques of the same date one for 30.5 Lacs and 29.5 Lacs. They did not deposit the 29.5 Lacs cheque on that day and kept it with them and the other they deposited exactly on the 180th day to create this case. I am only asking one thing does 138 NI apply when no liability exists on the date of the cheque and can be used for future uncertain liabilities under an agreement which is not legally enforceable which have not been proven by the complainant.

YES I am trying to tell you that ICICI bank won the case when there was no liability as on the date of the cheque.  

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