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Goutam (Student)     15 October 2010

Proving facts U/S 138 N.I Act

Hello friends,
I am counsel from the complainant side. My client gave a friendly loan of Rs-35000/ to his friend in cash without any interest. After sometime the accused (friend) gave a cheque to pay off his dues(debt). But the same was dishonoured. I file a complaint U/S 138 of N.I act against him.


The counsel of opposite side is asking now whether debt(loan) is "Legally Enforceable" or not.

My query is:-

1. How i can prove that my debt is legally enforceable.

2.What documents i have to show to prove this.



Learning

 9 Replies

DEEPAK ASSOCIATES (08010117611)     15 October 2010

u/s 118 of N.I. Act the presumption is an favour o the complainant untill not contrary is not proved

The opposit counsel has to prove it is not legal debt

ashish lal (Advocacy)     15 October 2010

Mr. Deepak is right

sachin sethi (Advocate (Crimial Law))     16 October 2010

first of all you have to prove that any loan was advanced by your client to his friend. if you succeed in doing so, then it is for your opposing counsel to prove that debt was an illegal or not legally enforceable. but i doubt that without any document you will succeed to prove the advancement of loan, especially if your opposing counsel pleads and proves the loss of check due to friendly relation with your client, however presumption is against the accused but remember my friend that presumption u/s 118 is of law and not of fact. moreover it is a rebuttable presumption.

so you should first try to prove the advancement of loan and then leave it to the mistakes of defense counsel.

 

                                                                                                                                                                  sachin sethi

DEFENSE ADVOCATE.-firmaction@g (POWER OF DEFENSE IS IMMENSE )     16 October 2010

From where the cash case , source is important.

Morever under IT act if cash given more twenty thosand there is heaby penaly.

The defense can ask your books of ac

vijay (Advocate)     26 October 2010

once the cheque has been issued, the presumption can be drawn that the cheque is issued towards the enforceable liabilty/debt unless the contrary is proved. the burden shifts on the accused to prove that the cheque was issued for some other reason & not for the enforceable liability.

MADHUSUDAN SARKAR (MANAGING PARTNER)     01 January 2011

PROOF OF AMOUNT GIVEN

DEFENSE ADVOCATE.-firmaction@g (POWER OF DEFENSE IS IMMENSE )     27 February 2011

Cheque bounce is offence but you can come out of it.

1)      Complainant in over confidence makes mistakes in giving notice, framing pleadings in complaint and documentary evidence.

 

2)      You can take advantage of these mistakes by timely action and expert cross examination.

 

3)      Courts can not give decision beyond documents, pleadings and result of cross examination. So accused should be ready and prepared to fight at every step.

 

4)      You have to be alert from day one once the time slips no body will listen to you.

 

5)      There is limited scope in revision and appeal to higher courts unless there is basic flaw so be prepared to contest with full efforts at trial stage.

 

6)      You must take and use not only expert but hard working legal assistance from beginning , normally most people do the reverse and than suffer.

 

7)      Many people suggest dismissal and quash applications to higher courts , which are not entertained . Once the process is issued you have to face trial.

 

But you can go to higher courts at intermediate stages by raising various questions and defenses available in law  to the accused.

ABDUL SALAM (ADVOCATE)     27 February 2011

dear sir 

138 NIA presumtiion favour of the complainant 

that your client provide as hand loan to the accused and for his liablity he was issued a cheque and same returned this amongss to 138 Rs.35000/- no need to prove the concilation apex court says onece your admited the signature in the cheque you cannot be costien about the body of the cheque ( difrent ink, differ hand writing and all) so that you can proceed with accordance with law

1 Like

Jopat Omprakash Radheshyam (Proprietor)     29 June 2011

The case is not of any loan but the accused Director has made fradulent payments of his personal dues through company cheques which is evident from the bank statements.Further he has issued other cheques for personal payments which got dishonoured for insufficient balance.Moreover amount of cash taken by him for common interest was never utilised for the purpose.In mutual settlement he has issued a cheque for net dues which got dishonoured for insufficient funds twice.Please advise.


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