sjain (CA) 20 August 2011

Legal advice needed

HI Lawyer Friends,

I need your valuable advice regarding a difficulty which my family is facing from quite sometime.My father who used to run a business in delhi went into huge losses & unfortunately he had no option but to sell-off his only property to repay the debts.All the debts were not enforceable under the law( had taken money from market money-lenders) but he still paid them off just to lead a peaceful life there after. As you can understand, after selling off his only belongings, he has been suffering from sheer depression & health problems.

Now, we have discovered tht one person had forcefully taken some cheques from him some time back by giving threats & torture, taking advantage of his weak condition, has filed a case against him for dishonouring the cheque.a notice was also served to my father to clear the cheque in stipulated time. As my father had not taken any such money from him, he did not cleared such cheques. Also, as he is left with no resources, he could not even think of entertaining such cheques.

Now I want to take opinion from you as there is no legaly enforceable liability exist on my father from that person against which he issued such cheques..neither tht person nor us has any single document which can prove that that person has ever lended us any amount against which he forcefully taken cheque from him.

Can we get any relief under the court of law..??? I am sure there will be some way to save a person who is a victim of some one's ill intentions. please help.

Heartly Thanks...

S.Jain.

Reply Follow

5 Replies

adv. rajeev ( rajoo ) (practicing advocate) 21 August 2011

Issue reply notice denying his notice contentions and instruct them to return the cheques within the given time other wise file a private complaint against him.

DEFENSE ADVOCATE.-firmaction@g (POWER OF DEFENSE IS IMMENSE ) 21 August 2011

It is easier for any accused of Ni 138 case to come out of it since it is very difficult for the complainant to prove his case but you have to face trial , once court notice is issued no quash is possible even at higher court. , unless you are ready to go up to SC.

PEOPLE LOOSE BECAUSE OF CARELESSNESS FROM BEGGINNING. THEY WASTE INITIAL TIME IN TAKING DATES ONLY. YOU HAVE TO INITIATE PROPER ACTION FROM DAY ONE WITH EXPERT LEGAL ASSISTANCE THEN WINNING THE CASE WILL BE EASY, SIMPLE AND SURE.

So complainant need not be over confident , it will be next to impossible to win any NI 138 case if contested aggressively by accused from day one since the case has to be proved beyond doubt at many points that is a) there was legal liability b) cheque was actually given by the accused from his account c)cheque was presented during stipulated time to the bank d) cheque was actually returned due to insufficient funds e) legal notice was given f) such legal notice was received g) thereafter proper pleadings are made and documents attached at first instance while filing the case.

So even if the presumptions are there in NI ACT the accused has legal right to rebut them which is more simple , sure and easy., and complainant make mistakes on one or more of above points/ steps.

(Guest)

there is no need to worry at all... if there is no purpose of giving cheque, it can be easily explained as missing...

sjain (CA) 22 August 2011

Thank you friends for your advices. could you please guide how we can prove that there was no legal liability against which cheques were issued. since we do not have any contract signed with him or any other business transaction with him. the complainant also dont have even a single piece of paper to prove that there was any legal right to claim money from us for which he took cheque from us.

How this can be substantiated under the court of law?? also what generally courts decide when legal liability is not proved by both the parties??

Please guide.