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DEFENSE ADVOCATE.-firmaction@g (POWER OF DEFENSE IS IMMENSE )     24 May 2010

Cheque bounce cases u/s 138 of N I ACT.

The courts are clogged with the cheque bounce cases all over the country. The aim of the lagistation was to provide deterent to the persons availing benefits on strength of cheques but in practice these provision are being misused by loan sharks and illegal money lenders.

I publish INDIAN FRIEND a weekly newspaper to through light and provide solutions to such problems. You can get it by sending your email address at : indianfriendnashik@gmail.com.

I am of the opinion that as the things stand now most of the chequ bounce cases can be sucessfully contested in favour of the accused by taking advanrtage of basic safeguards provided in the N I ACT.

There is apathy on the part of both the accused and his attorney to fight the cases and bring them to their logical conclusion.

First of all most of the people including the advocates have the beilef that the liability and guilt is assumed after issue of cheque against the issuer. NO NOT AT ALL.

There are safeguards in the N. I. ACT. One the cheque should have been issued against the LEGAL LIABILITY and it should be presented within six months of issue ot time limit which ever is earlier.

On one or other of these provisions most of the cheque bounce cases can FAIL if contested properly.

WELCOME FOR SPECIFIC PROBLEMS.

 

 

 

 



Learning

 22 Replies

PJANARDHANA REDDY (ADVOCATE & DIRECTOR)     24 May 2010

ALL CRIMINAL COURTS ARE FLOODED WITH 138 , 498A CASES. ALL MOST ALL ARE FAKE COMPLAINTS. IF 2 SECTIONS ARE NOT THERE ALL CRIMINA COURTS ARE BURDEN FREE COURTS. 

Pankaj Kundra (Advocate)     24 May 2010

Very true

Arif Iqbal (Advocate)     24 May 2010

These two sections are indeed being misused. We as lawyers should atleast try not to advice our clients to misuse it. We should discourage its misuses.

DEFENSE ADVOCATE.-firmaction@g (POWER OF DEFENSE IS IMMENSE )     24 May 2010

I have got no of emails regarding the article on section which I am reproducing below >-

 

 

NEGOTIABLE INSRUMENT ACT- SECTION 138

Most misused provision of law.

 

 The purpose of  section 138 was to provide speedy remedy for recovery of dues created on the security of a cheque, but as the things stand now it is mostly exploited by the loan sharks and illegal moneylenders.

 

1)                            The basic provision is that the cheque should be for legal and enforceable dues and it should be presented within the six months or during its validity whichever is earlier.

 

2)                            Both of these provisions are the best defense but are exploited by the loan sharks and illegal money lenders.

 

3)                             Search deep for every case  u/s 138

 

i)                     The provision that liability is presumed against the issuer of the cheque in not sacrosanct. You have numerous opportunities to assail the existence and legality of the dues.

 

ii)                   Another important defense is the date of issue of cheque. In most of the cases blank cheque is taken and the amount and date is put later to keep it within limitation. If you do some hard work and persistent with your queries in most of the cases on this point alone these cases can be brought to conclusion in favor of defense.

 

 

iii)                  You will be surprised that even the case laws submitted on behalf of the complainant  will provide you sufficient material for defense.

 

iv)                 Read every word of the complaint and documents .You can spot  various  contradictions  and fabrications which  can demolish most of these claims.

 

v)                   In many such cases you can also initiate criminal action for forgery, cheating and perjury against the complainant.

 

vi)                 Utilize every opportunity to go to higher courts before the final verdict and not after to press for your pleas.

vii)                Please study all commercial and taxation laws and you will get number of provisions to help you to establish illegalities of  the claims .

 

viii)              The law is in English, citations are in English. So you  must utilize every opportunity to gain proficiency in English. Japan pays minimum one lac per month salary for English teachers and China with its ambition to rule the world gives best facilities for learning English .

ix)                You will get obstacles at every stage so be persistent with your efforts, ultimate success will be yours.

 

 

Inviting  hard working Junior friends :-

 

 Unlimited fast Internet  facilities to study latest case laws  and attend  to various online legal queries , counter queries

 

 Opportunities to take part in highly contested civil and criminal matters before various  legal forums.                               

indianfriendnashik@gmail.com

                                    shashikumarnashik@gmaii.com

 

 

 Friend needing further direct help in the matter should send the copies of complaint, all the documents and the synopsis of the case. I will give step by step procedure and set of questions for cross. You must succeed in every case of 138 in favor of defense. Always remember the law and procedure is not magic so you have to work hard and build your steps bit bit because there will be resistance at every step by courts and opponent the moment you start your journey in way deferent than the established one. 

 

 

 

 

DEFENSE ADVOCATE.-firmaction@g (POWER OF DEFENSE IS IMMENSE )     25 May 2010

Thanks Mr PJanardan reddy for your efforts and sending me a copy of Judgment.

I am of the firm opinion that in most of the 138 cases the accused must get relief but he does not get it becuse

1) The defense advocates do not take efforts to fight the case and on the other hand terrorise the accused.

2) Some times the accused are also overconfident by misconcieved knowledge of law and waste valuable opportunities avialable at trial stage.

3) All persons whether advocates dealing in 138 cases or accused in such cases ; you have to be vigilant at every step. Give tough fight at every stage against every application of the complainant.

4) Most of all avail all possible efforts to get disclosure of information and documents from the complainant.

5) Do some background work and find each and every details about the complainant if he is a indivudal complainanrt. If firm co or bank find about earlier such cases and buisness practices.

6) The administration justice works on evidence and not on hearsay. If you have to win you must contradict each and every submission of the complainant by evidence and not just arguments.

niranjan (civil practice)     25 May 2010

Though moral part does not play role in this matter,but when person really borrows money by giving blank cheques, and he is not ready to pay back real debt and yet we can use our efficiency to guard such people ?

DEFENSE ADVOCATE.-firmaction@g (POWER OF DEFENSE IS IMMENSE )     26 May 2010

Yes becuase firstly the debt is never real. Sombody borrows ten thousand from a near friend and good faith gives blank cheque.

The friend in turn calculates compund interest and files a 138 case for ten lacks.

They have a place in jail no where else.

Anil Agrawal (Retired)     26 May 2010

There is no good faith. If a man borrows from a friend, why does he give him the cheque?  There are crooks on both sides. You talk of people and advocates. What about magistrates? How many times high courts and supreme court have stated that 138 should be disposed of within 6 months but they drag on for more than 10 years. Who cares?

 

Read what Mumbai High Court said. If you still believe that every thing is hunky dory, well kudos to you.

 

Ksl And Industries Ltd., (Formerly Known As Krishna Texport Industries Ltd.), A
Company Duly Incorporated Under The Companies Act, 1956 vs Mannalal Khandelwal
And The State Of Maharashtra Through The Office Of The Government Pleader
Intervenor: Mr. Vijay Agarwal, President on 1/2/2005
 
JUDGMENT
 
   Dalveer Bhandari, C.J.
 
 
   40. Immediately after the presence of the accused is secured, an option be given to him whether, at that stage, he would be willing to pay the amount due, along with reasonable interest, and the Court may consider passing suitable order. But where the accused is not willing to pay the principal amount with interest even at that stage, the Court may fix up the case at an early date, and ensure day to day trial of the case. In order to accomplish the underlying object of the Act, we deem it appropriate to pass the following directions:
 
     33 (a) Experience reveals that enormous time is spent at the stage of summoning / serving the accused. The Court must adopt pragmatic methods and must serve them by all possible means of service, including Email. The Court would be justified, in appropriate cases, to take the help of concerned police station for the service on the accused. The Court should avoid giving long dates.
Instead, the Court must repeatedly issue summons to secure the presence of the accused. The Court must ensure that the accused are not permitted to abuse the system. 
 
     (b) The Court concerned must ensure that examination in chief, cross examination and reexamination of the complainant must be concluded within three months of assigning the case. The Court has option of accepting affidavits of the witnesses, instead of examining them in Court. Witnesses to the complaint and accused must be available for cross examination as and when there is direction to this effect by the Court.
 
     (c) Complaints must be disposed of as expeditiously as possible, and in any event, within six months from the date when the presence of the accused has been secured. In case the concerned judicial officer is not able to dispose of the complaint within six months, then, the concerned judicial officer must submit a report to the concerned Sessions Judge, indicating the reasons which led to delay in disposal of the complaint. The report submitted by the concerned
judicial officer shall be taken into consideration while evaluating the performance of the concerned judicial officer.
 
     (d) Every judicial officer must ensure that at least four cases in a month are disposed of by reasoned judgments.
 
     (e) The trial of these complaint cases under Section 138 of the Act be continued from day to day until its conclusion.
 
     (f) The complainant must ensure that the legislative intention is carried out in dealing with complaints under Section 138 of the Act.
 
     (g) The Registrar General is directed to monitor that directions given by the Court are scrupulously followed. A comprehensive quarterly report be submitted to this Court indicating whether directions of this Court are followed.
 
   41. All these petitions are accordingly disposed of. Rule is partly made absolute in Criminal Writ Petition No. 1228 of 2004. All intervention applications stand disposed of.
 
   42. These petitions would, however, be listed on 1 st March, 2005 only to ensure compliance of our judgment, as mentioned below.
 
   43. We would like to place on record that presently, there are 727 posts of Civil Judges, Junior Division, in the State of Maharashtra. The entire process of filling these vacancies is complete, as far as this Court is concerned. The Civil Judges, Junior Division, and Metropolitan Magistrates are already overworked; and giving them additional burden may not yield any fruitful and
desirable results. About 4 lakh complaints under Section 138 of the Act are pending in various Courts. According to the legislative intention, these complaints must be disposed of expeditiously. The only way to achieve this object is to have larger number of judicial officers. Therefore, in the larger interest of justice, it has become absolutely imperative to create at least 100 additional posts of Judicial Officers in the Cadre of Civil Judges, Junior Division, in the State of Maharashtra.
 
   44. We direct the Chief Secretary of the State of Maharashtra to ensure that 100 additional posts of Civil Judges, Junior Division, and their supporting staff are created forthwith, and in any event, within two months from today. 45.Even after receiving sanction from the State, to complete the entire process, at least time of few months would be required.
 
   45. Therefore, looking to the urgency of these matters, we direct the Registrar General to appoint following judicial officers in various cities of Maharashtra to deal with cases under Section 138 of the Act exclusively:
 
Sr. No. District No. of officers
 
 1 Mumbai 15
 2 Pune 12
 3 Nagpur 4
 4 Ahmednagar 2
 5 Aurangabad 1
 6 Nashik 2
 7 Kolhapur 1
 8 Solapur 1
 9 Thane 2
10 Satara 1
11 Jalgaon 1
 
                Total 42
   46. The Registrar General is directed to post the officers as enumerated in preceding paragraph within two weeks.
 
   47. We direct that the copies of this judgment be sent to the Chief Secretary and the Law Secretary of the State of Maharashtra within three days for immediate compliance.
 
   48. These petitions are disposed of. These petitions would be listed on 1 st March, 2005 for limited purpose of ensuring the compliance of our judgment.

ghansham das (self employed engineer)     27 May 2010

very true you are.

 THE  NATION  MUST  GET  WAKE UP,- NOW .

YOU ARE ALL WASTING OUR PRECIOUS TIME OF LIFE BY GIVING DATES, CONSUMING TIMES.

THIS IS NOTIOANAL WASTEGE OF TIME, EFFICIENCY, PROGRESS, WITH ULTIMATE RESULTING TO CHAIRS  OF THE MINISTERS  AND ITS' INHERANT -  BENEFICIARY.

The ministry, ministers, judicairy  is responsible for the delays.MUST BE MADE ACCOUNTABLE.

Giving dates, is the root  cause, interference by higher courts, is another cause thro'  system to delays,

any delays is to be compensated from the salry of the judges, justices,magistrates,?

is not wrong in forth comming days.

 

Anil Agrawal (Retired)     27 May 2010

Must wake up, should wake but we shall not wake up.

RAKHI BUDHIRAJA ADVOCATE (LAWYER AT BUDHIRAJA & ASSOCIATES SUPREME COURT OF INDIA)     30 May 2010

Very true Sir.

R Trivedi (advocate.dma@gmail.com)     08 September 2011

The problem is trial courts go beyond the mandate of the legislation.

The idea is very simple, if you issue a cheque voluntarily to clear your liability or debt,

and the cheque gets dishonored, then S138 gets attracted. But unfortunately very large 

fraction of pending cases is related to security cheque or blank cheque. Writing or suggesting

the mechanism in forums will not help, because our law does not change just like that. Nothing has happened to S.498A so far, it is inhuman that to safeguard a single woman so many other women are taken into custody along with men without proper assessment of complaint. Same holds good for S138, cheque bounce, and the drawer is in hopeless condition till the case gets settled. We are making  a compilation of higher court judgements which should be used as citation, even advising accused to approach High court under S482 in some cases. Suggestions / advise / feedback welcome at advocate.dma@gmail.com

Anil Agrawal (Retired)     09 September 2011

Many a times I have read courts saying INTENTION OF THE LEGISLATURE. I have also seen Parliament passing bills withougt any discussion for paucity of time. They call it guillotine i.e. all the bills are deemed to have been passed. I am at a loss as to how without any discussion the INTENTION OF THE LEGISLATURE can be gauged by reading the Act when no discussion took place. Is it the OBJECT OF THE BILL only?

DEFENSE ADVOCATE.-firmaction@g (POWER OF DEFENSE IS IMMENSE )     20 September 2011

Due to problems of certain restriction I am not publishing this paper now but I am surprised that accused in NI 138 cases are adamant till they are convicted or case goes against them.Then they start blaming the court and the advocate.

I again say and do it practically that if conterested properly from day one any NI 138 case can be won very very easily. 


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