LIVE Course on Transfer Property Law | Price Hike in 4 days | Grab it now!
LCI Learning

Share on Facebook

Share on Twitter

Share on LinkedIn

Share on Email

Share More

Prashantha (Self Business)     15 January 2014

Ni 138 evidence / witness

Sir, In one of the case court aquits accused of NI138 where complainant could not prove execution or handing over cheque in absence of witness/circumstantial evidence and accused accepted his due is smaller than the amount on the cheque.

In absence of witness how one can prove execution of cheque if no witness available either side. Can you share some points on which circumstantial evidence can be established to this effect. Thanks.



Learning

 9 Replies

Pradeep Bharathipura (Advocate)     15 January 2014

Sir, Only thing in 138 case is whether accused is admitted the signature of the cheque and document i.e cheque, when these two things are admitted burden lies on to the accused to disprove the same........the presumption under law is cheque is issued it is for considaration, you need not examine the witnesses. it is the duty of the accuse is to disprove the same.

Regards

Pradeep B.V 

Advocate

Prashantha (Self Business)     15 January 2014

Sir, In this case, accused is not admitting signature and content writing on the cheque. We can prove thru Banker / FSL that signature is accused. if in this case can circumstantial evidence help? what are the points that can lead us to establish circumstantial evidence. Thanks

MARU ADVOCATE (simple solutions for criminal legal problems -- yourpunch@gmail.com)     15 January 2014

This is the most important defense of the accused in cheque cases. Than bank manager can not stand  before expert cross because he can at the most compare the signatures of the accused with his records which will always vary since old.

Prashantha (Self Business)     15 January 2014

As said if Bank Manager can not stand in front of Expert Cross due to variation, we shall opt for FSL for Signature / Thumb impression and we can provide accused multiple original signature which was signed over a period of 3 - 4 years within which the case occured. If we succeed the signature test, what other circumstantial evidence points that can lead us to the good evidence to consider by court. Thanks.

MARU ADVOCATE (simple solutions for criminal legal problems -- yourpunch@gmail.com)     15 January 2014

First of all pl tell us whether accused is aquited as you have mentioned in your first lines.

 

If you can prove legal liabilities other things become simple.

 

Otherwise mere proof of signatures of the accused are not enough.

SHIRISH PAWAR, 7738990900 (Advocate)     15 January 2014

Rightly advised by Mr. Maru

kapoorsatish (n/a)     16 January 2014

Who is to prove date of delivery of Cheque Accused or complainant?

Complainant in affidavit claims the cheque was given in May-2010, where as account was closed in May-2008 business was closed in May-2008 due to losses. Cheque was given as security in Dec-2007, bank account statement shows cheque number prior to and after bounced cheques cleared before May-2008. Since blank cheque was given by accused, complainant filled date , drawer name and amount. Will bank account statement be sufficient as circumstancil evidence that cheque was given in 2007/2008.

What is meaning of ---6months from date drawn OR validity period? what is validity period of cheque in this case?

T. Kalaiselvan, Advocate (Advocate)     16 January 2014

@kapoorsatish:Will bank account statement be sufficient as circumstantial evidence that cheque was given in 2007/2008.  No it cannot be relied upon because the accused might have issued the cheque knowing very well that he closed the account with the bankers to defraud the complainant, this cannot be a defence.   The complainant should prove the legally liable debt and if the signature is disputed then it is the accused who has to initiate steps for getting the expert's opinion u/s 45 of the Indian Evidence Act.  Bank manager cannot opine to the correctness of the signature comparing to the specimen signature in his possession because he is not an expert in the field.

R Trivedi (advocate.dma@gmail.com)     16 January 2014

@kapoorsatish Who is to prove date of delivery of Cheque Accused or complainant?

 

There is a rebuttable presumption u/s 118 of NI Act with respect to date on cheque being the date of drawn, so it is up to accused who will have to prove the earlier date.

 

If you refer to S.46 of NI Act, then you will see that making / execution of the cheque is completed with the delivery, so ideally the six months should be calculated from the date of delivery, irrespective of any date on cheque. (If date of delivery can be proved).

 

Hon SC has come up with a bad order with respect to Post Dated Cheque (that PDC shall be treated as drawn on the date mentioned on it), SC forgot that under S.138 it is the criminal liability and S.46 clearly states that the making of the cheque is deemed to have been completed with delivery, so it was not in the jurisdiction of SC to interpret it differently with some absurd logic that it remains as bill of exchange till then and after that it becomes the cheque (they again forgot that cheque is always a bill of exchange). Ideally S.46 must be followed, but as far as S.138 of NI Act is concerened, with deepest respect but with deep anguish I must say that there is a widespread illegality, the Ld magistrates have not even understood the statue, I am sorry to say, sometimes I wonder even the SC/HC knows about this statue in totality or not.

Some bloomers...

1. SC has not even once spoke on actual definition of Holder.

2. SC orders on GPA (with respect to S.138 complaint) is not clear but confusing, leaves many unanswered questions.

3. SC/HC never refers to S.46, otherwise all these EMI or blank cheques with Banks will vanish.

4. SC/HC in some orders forgot that mere signature on the document is not the proof of execution.

5. One widely used order of SC with respect to compounding even at the appeal at SC level, is quit ...what to write..

6. One order of SC declaring the liability as Legal Liability under S.139 presumption is also not a fair ruling.

7. Most of the trial courts have not heard about the Mandvi Coop order of SC, and total violation.

8. many Trail courts conduct the trial as normal summon trial, which is against mandate.

9. SC is keeping a blind eye that all trial courts have forgotten that presumption of innocence is not taken away and guilt must be proved by prosecution beyond doubt.

10 SC is vague and not accused friendly on blank cheque, despite lack of law on blank cheque.

The presumption under S.139 is only about the type of liability, it is not about amount. The presumption is just this much that : Whatever complainant says about the purpose of cheque. (Means accused cannot say he issued the cheque for different liability or for GIFT), unfortunately no order of SC reflects this view. The complainant has to prove the liability amount otherwise so many statues (and sections) of various central acts get violated.

Take for example I took a car Loan, A scooter Loan, a home loan from ICICI bank, and the Bank has one blank cheque of mine which I issued at the time of car Loan. My car Loan is over, my scooter loan is over but I could not pay off my home loan, then ICICI bank used this blank cheque of mine and got it dishonered after filling my due amount on Home Loan..

This case must fail on following accounts..

 

1. Date of cheque beyond 6 months (S.46).

2. If I can prove that I issued this cheque for Car Loan, not for my Home Loan.

3. No authority to fill up the cheque, a Blank cheque was not a cheque when delivered.

 

All defense counsels must agitate these issues even at appellate stage, then only things will change. This statue is most inefficiently handled by judiciary.

 

 

 

 

 

 


Leave a reply

Your are not logged in . Please login to post replies

Click here to Login / Register  


Start a New Discussion Unreplied Threads



Popular Discussion


view more »




Post a Suggestion for LCI Team
Post a Legal Query