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SANTOSHSINGH. (ADVOCATE sardarsena@gmail.com)     24 September 2017

Recent cheque bounce judgments by higher courts

Cheque bounce is a stiff law and most of the accused get convicted since no proper defense is taken at trial stage. Once time goes out nothing can be done. Cases which could have been won easily are lost  since courts acts on evidence. And accused fail to contradict the evidence of the complainant which is other wise easy and simple.

We will give details of certain recent higher courts judgments to educate the accused so that they can take proper steps at lower court level.

Delhi High Court  . on 10 August, 2017
 
Cheque bounce of Rs six lacs. Both the lower courts confirmed coviction. High court admitted petition on deposit of full cheque amount.
The main defense was cash loan, no agreement and not shown in INCOME TAX RETURNS.
 
THE High court confirmed the conviction of lower courts with following remarks.
 
11. The contravention of Section 269 SS though visited with a stiff penalty on the person taking the loan or deposit, nevertheless, the rigor of Section 271D is whittled down by Section 273B, on proof of bonafides. It cannot therefore be said that the transaction of the nature brought before this court could be declared illegal, void, and unenforceable".
 

27. The petitioner did not lead any evidence. On the contrary, in his 313 statement he has taken a plea which is not at all convincing. It appears rather strange that he issued a cheque in the name of the complainant/respondent No.1 

28. Thus, the presumption of a legally enforceable debt could not be rebutted by the petitioner.

. There is no reason to interfere with the concurrent judgments of the Courts below.


 3 Replies

SANTOSHSINGH. (ADVOCATE sardarsena@gmail.com)     25 September 2017

Power of proper cross and power of proper defense at lower court level it self.

In the above case that accused took stale, lousy defense not only at trial court but also at sessions court and even High court and got convicted.

Firstly : the defense was that cheque was given but as a security.

Second : the complainant could not have given cash of SIX LACS  due to Income tax rules.

Please remember always that courts give judgments on evidence. Even your case is true BUT you are not able to contradict the complainants evidence legally , there is no eascape from conviction.

In above case the accused should not have taken stand that he gave the complaint cheque as security.  There could have been a flat denial that the cheque was not given at all  or given to some body else for few hudred only. OTHERWISE the cheque was given in anticipation of loan as blank but no loan was given. Here again not purely blank but without date and amount and name.

Regarding CASH the onus could have been put on complainant to prove it by clever cross by most simple and elementry questions . Such as :-

Did you have SIX LACS IN CASH when you claimed to have given to accused.

Have you stated it in complaint, affirmation and evidence affadavit.

Any witness before whom cash was given.

Any reciept or agreement for repayment by  having partied with such huge amount.

Any previous history of having given any loan of even SIX RUPPES to the accused.

Than how you trused to accused and parted with such huge amount.

we have seeb many advocates ask similar questions but do not develope them further so it beccomes counter productive.

For example if the complainant replies he had the cash of SIX LACS.  Such replies must be hammered.Should do all its post mortem. Such as from where you got it. Withdrawn from the bank than any record. Took from relatives or friends their name and address and previous history of taking cash.

Again some advocates ask have you shown the loan in Income tax which  No the courts do not take it seriously as in above case.

So instead you should ask have shown cash in your books.Have you shown deposits by your freinds and relatives in your books. PLEASE GIVE DETAILS.

At this stage you can even call those freinds and relatives and even IT dept  through court summons to contradict .

 

SANTOSHSINGH. (ADVOCATE sardarsena@gmail.com)     25 September 2017

 

Next we will give examples with citations that how JUDGMENTS  do not work and it is not proper defense.

R Trivedi (advocate.dma@gmail.com)     26 September 2017

Santoshsingh, again you have started promoting yourself by declaring others as fools. You are welcome to give citations, you are welcome to post about valid defence but DO NOT show off by putting other defences in bad light. Pl note that judgements by hon SC are law and Hon jurisdictional HC is binding. So do not misguide that judgements do not work.

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