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agapi (doctor)     13 June 2009

REQUIRED DOCUMENTS FOR 138 N.I. CASE

What will I have to tell the court regarding the reason of getting this cheque? I have no more documents than this cheque, I have returned the agreement and right now I can ofcourse submit this cheque to my account and most probably can get the 'insufficient funds' stamp but I cannot prove that I got this cheque from the drawer towards clearing his debt or liability. Please tell me the exact scenario of law---- because I have to come to India to file and to proceed. Thank yoU.



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 12 Replies

A V Vishal (Advocate)     13 June 2009

Dear Agapi,

The case may be admitted on the presumption that the cheque was given towards a debt owed to you by the drawer, however, during the trial the burden to prove, that the cheque was towards a debt is on you. In absence of any agreement or such with you, it becomes difficult to prove the debt. It shall depend upon what stand rhe accused/respondent takes in the court. However, can you clarify how the amount was loaned, viz was it through a cheque or by cash. In case it is through cheque then your bank statement could serve as an evidence. I think you should consult a good lawyer once you are in India.

A V Vishal (Advocate)     13 June 2009

Dear Agapi,

The case may be admitted on the presumption that the cheque was given towards a debt owed to you by the drawer, however, during the trial the burden to prove, that the cheque was towards a debt is on you. In absence of any agreement or such with you, it becomes difficult to prove the debt. It shall depend upon what stand rhe accused/respondent takes in the court. However, can you clarify how the amount was loaned, viz was it through a cheque or by cash. In case it is through cheque then your bank statement could serve as an evidence. I think you should consult a good lawyer once you are in India.

Kiran Kumar (Lawyer)     13 June 2009

well certainly u ll ve to prove the existence of legal liability against the cheque....in 2008 SC has already decided that the complainant must prove the existence of legally enforceable debt.

pls visit some local lawyer with all the doucments u ve.

adv. rajeev ( rajoo ) (practicing advocate)     13 June 2009

Kiran kumar is rightly said.  when u have no documents in my opinion u have to lead the evidence of independent wittnes who can say about the transaction between u and drawer. Otherwise it is very difficult to prove the legally payable debt.

agapi (doctor)     13 June 2009

Thanks for the answers but I was told that I will have to prove that the cheque was given to me for clearing debt or liability only when the opposite party has already proved that the cheque  was given as gift. So, if the accused cannot prove that the cheque was given as gift then also I am bound to prove that the cheque was given to clear debt or I am not bound???

Ravichandran (legal profession)     13 June 2009

In negotiable instrument act the legal enforcible debt should be proved , to get over the case on bounce of cheque notice to drawer is mandatory ,on notice you state the facts  how debt substantiated.On failure to honour the cheque amount within fifteen days  you file criminal complaint let accused come with defence,if defence is not bonafide automaticaly you will suceed. There lot of supreme court decision that the accused has to defend the allegation once the same alleged by complainant.

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agapi (doctor)     13 June 2009

 but i cannot give any proof about the debt. so, i am asking what is the law? accused should prove that the cheque was given as gift at first or not?

mr. ravichandran has told that if the defence is not bonafide then automatically i will succeed. what is the meaning of that? what could be the defence?

K D Pande (Advocate)     24 August 2009

initially burden of proof is on you. if you proved existance of any legally enforcable laibilty or debt against drawer of cheque then onus will shift on drawer to prove that it was not for consideration. The presumption u/s. 118 & 139 of N.I. Act is rebuttable which the the drawer of the cheque can rebutted on preprodence of probability & not beyond reasonle dout.

In your case it is dificult to prove existance of liabllty.

Kindly go through following Judgment of Apex Court. you will get answer for your query.

Krishna Janardhan Bhat V/s. Dattatrya G. Hegde reported in 2008 Cri. L.J.on page No. 1172.

Adinath@Avinash Patil (advocate)     29 August 2009

Dear agapi, visit local advocate  with  all docuements & give him all details regarding cheque.He will guide you perfecly.

PARTHA P BORBORA (advocate)     29 August 2009

IN MY OPINION IT IS THE BURDEN OF THE PAYE TO PROVE THAT THE CHEQUE WAS NOT GIVEN AGAINST A DEBT AS IN A CASE US 138 N I ACT IT SHALL BE PRESUMED THAT THE CHEQUE WAS GIVEN OTHERWISE THEN A DEBT AS PER THE PROVISION LAID DOWN U/S-139 OF N.I ACT.

PARTHA P BORBORA (advocate)     29 August 2009

PL READ THE LAST SENTENCE AS- IT SHALL BE PRESUME THAT THE CHEQUE WAS GIVEN FOR DISCHARGE OF A DEBT AS PER SEC 139 N I ACT.

Mirza Anis (free lancer)     07 September 2013

A person known to me for long time assigned to me a responsibility which involves expenses of Rs.25000. To be sure of my performance he demanded a security cheque of the same amount from my account. I obliged and gave him the cheque. The work assigned to me completed , now he says he is not happy with the end result of the work, and hence I shall pay him back the Rs.25000.or else he will file a suit u/s 138 NI act ( he presented the cheque in bank and got bounced ) Between us there is no written record or evidences for such return promise, further there is no evidence of  myself taking responsibility of the work. Can file a suit on me for bounce cheque.


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