Basavaraj hadimani (employee) 13 April 2010

N.I Act 138

Hello sir,

Before this I had asked this query to u all,but the question was not so clear.Sir once again I am

asking the same . One of my brother had availed a loan from a nationalised bank with all necessary

procedure.Later he became the defaulter,In the meanwhile I had given a cheque to my brother for

some transaction in his firm name,but without my consent my bro has given the same cheque to

the bank where he has availed a loan(for which I am not at all related).I am not a guarantor nor a surity

to the said loan.After some time I received a notice from the said bank that they have produced my cheque

for clearance (as holder in due course) and same was dishonoured and to pay the ch amt.Now they have

filed a case against me under sec 138.Please suggest me about my defence

Thanking you sir

Kbasanna

Reply Follow

4 Replies

Arun Kumar Bhagat (Advocate (criminal)) 15 April 2010

The bank has to prove its case beyond reasonable doubt. The bankhas to prove the existence of legally enforceable liability from you. In this case bank would not be able to show even a piece of paper linking you with the existence of liability. The bank may at best say that you in discharge of your brother's liability gave the said cheque to it but even in that case onus lies upon the bank to prove that you undertook the liability of your brother to pay back the bank. As per the judgement of Hon'ble Supreme Court passed by Hon'ble Justice S.B.Sinha "The existence of legally enforceable debt is not the matter of presumption." So you have to take the defence that the said cheque was given to your brother as advance for some transaction which did not materailsed.