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karthik (advocate)     08 December 2011

S.138 of ni act

dear members,

A complaint u/s.138 of NI Act was filed against my client.The case of the complainant is that he gave gold jewels to my client for sale and my client even after selling the jewels did'nt give money and he gave cheque for the same.But the complainant never spoke about when and where and at what date he gave the jewels.Is there any citation acquitting the accused based on non proving of passing of consideration.Kindly give your views......


 12 Replies

DEFENSE ADVOCATE.-firmaction@g (POWER OF DEFENSE IS IMMENSE )     08 December 2011

Once the process is issued you have to contest the case. It is easy to win on technical points only. Otherwise once the cheque is proved to be yours and from your account the guilt is accepted and conviction follows.

Shonee Kapoor (Legal Evangelist - TRIPAKSHA)     08 December 2011

Once the summons have been issued, you can take this objections. The trial court is empowered to diswcharge the accused on these grounds.





Shonee Kapoor

R Trivedi (     19 January 2012

For what you gave the cheque to him, means how did he get your cheque ?

Advocate Bhartesh goyal (advocate)     26 January 2012

It is not material that complainant has not spoken that when .where and on what date the jwels were given., material thing is that why  did you isse the cheque? you  have to rebut the presumption by cogent  and material evidence else it will  be presume that cheque has been issued against the debt or discharge the liability.

Shonee Kapoor (Legal Evangelist - TRIPAKSHA)     26 January 2012

It is very much material as to how the cheque was issued and for what purpose, unless there is a legal liability no case is made out.


Shonee Kapoor

Advocate Bhartesh goyal (advocate)     28 January 2012

It is true that initial burden to prove the allegations lies on complainant but if once accused admit the issuance of cheque burden shifts to accused and untill and unless he does not rebut the presumption of issuing cheque towards debt and liability it will be presumed that complainant has issued thecheque against debt or liability.

DEFENSE ADVOCATE.-firmaction@g (POWER OF DEFENSE IS IMMENSE )     28 January 2012


Any case of cheque bounce  (NI 138)  can be won by the accused if diligently perused from initial stage. It is  a myth that once a cheque is bounced conviction is imminent .

 The complainant has to pass many many and many legal hurdles to achieve this.

 1) Prove EXACT  legal liability equivalent or less than value of cheque that too on the day when the cheque was given .2) Prove notice and all its contents .3) frame proper pleadings in the complaint 4) produce all the evidence with the complaint 5) Prove cheque was actually given to the complainant BY THE ACCUSED .6) It may have been given post dated but not blank dated.

6) Prove its bounce against the complainant not against any body else. This is a big catch and ignored by many most of the time.

Accused  suffer only due to guilt complex and initial lethargy .Power of defense is power of negative which is  perpetual and immense.

R Trivedi (     01 February 2012

It is true that initial burden to prove the allegations lies on complainant.... by Advocate Goyal


I would differ with this. There is no initial burden on complainant. S.139 gives presumption in favor of complainant from day one. Bounced cheque, bank slip and proper notice and case file during the limitation is sufficient to proceed. Accused has to rebut the presumption. Yes if accused successfully rebuts the same then the onus shifts to complainant.

Shonee Kapoor (Legal Evangelist - TRIPAKSHA)     01 February 2012

I differ with Mr. Trivedi,


The initial onus that there was a legal debt has to be on the complainant and mentioned in the complaint itself.


Shonee Kapoor

DEFENSE ADVOCATE.-firmaction@g (POWER OF DEFENSE IS IMMENSE )     02 February 2012

Merely cheque and slips are no presumption . To meet the provisions of law there has to be proper pleadings and there where complaint bumps.

R Trivedi (     02 February 2012

The honorable supreme court (double bench of K G Balkrishnan+) has interpreted that the presumption under S.139 is with respect to the Legally Enforceable Debt. That means once the cognizance is taken based on the cheque, slip, notice etc, and the execution of cheque by accused is established the presumption is available with the complainant. The accused can create the probable defense even from the matter produced by complainant, but certainly the onus is on the accused to probablise the case, there is absolutely no first onus on the complainant to prove the case. Any loose or false information in the plaint goes in favor of accused.

Shonee Kapoor (Legal Evangelist - TRIPAKSHA)     03 February 2012

You are right Mr. Trivedi,


However, the debt has to be shown in the pleadings.





Shonee Kapoor

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