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ramesh (wer)     22 May 2012

Documentary evidence

Hi,

While filing the  case under NI act ,

1.Is it essential that there must be a documentary evidence (Like loan agreement ,loan papers, any other type of documents to proove the liability etc) for lending the money?

or

an affidavit by the complaint regarding the lending of money and verbal statements / is sufficient?

Regards

Ramesh



Learning

 3 Replies

Adv.R.P.Chugh (Advocate/Legal Consultant (rpchughadvocatesupremecourt@hotmail.com))     22 May 2012

It is always presumed that a negotiable instrument was given for consideration and in discharge of a liability, the onus to prove otherwise is on the accused. 

DEFENSE ADVOCATE.-firmaction@g (POWER OF DEFENSE IS IMMENSE )     22 May 2012

But not for cash loan.

 

Presumption is for legal liability and first burden is on the complainant to show that the liability was or is legal than accused has right to rebut it.

 

Law in nothing but common sense codified in words. Simple example a person gave a cheque for liabilities of share of stolen property or drugs / illicit liquor trade and it is bounce.

Whether liability is presumed no not at all.

THE INITIAL BURDEN IS ON COMPLAINANT TO SHOW THAT IT IS LEGAL LIABILITY.

 

 

SC has generally held that the provisions of NI act are legal fiction and hence all of them have to be strictly followed .lapses on the part of complainant are fatal.

 

 Most of the complainants  fail to follow many imp requirements and that is why it is always simple, sure and easy for any accused of cheque case to win.

R Trivedi (advocate.dma@gmail.com)     24 May 2012

There is no such presumption of "drawn" by the accused and there is no such presumption of amount in cheque being the total due amount.

 

The presumption is that the " Complainant RECEIVED" the cheque for any debt or liability. So both execution and debt has to be proved by the complainant. Accused cannot say merely without proof that the cheque is not meant for the transaction(s) suggested by the complainant.


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