Threat for extradition-cheque bounce (personal loan)

DEAR MR. ROY 

                            YOU WANT TO HELP HIM OUT IN ONE WAY OR THE OTHER . BUT WHAT ALL YOU HAVE SUGGESTED WILL WORK OUT , ONLY WHEN THE PERSON HAD NOT BARGAINED WITH THE BANK BY MAILS AND OTHER MODES OF COMMUNICATIONS . I NEED NOT POINT OUT TO YOU AS YOU ARE A VERY SENIOR COUNSEL AS FAR AS LAW IS CONCERNED . BUT SINCE YOU HAVE APPEARED IN HIGH PROFILE CASES YOU MAY NOT KNOW WHAT THE LOWER JUDICIARY DOES . AS PER THE CODES , EVEN IF YOU ARE AWARE THAT A CASE HAD BEEN FILED AGAINST YOU IN A COURT OF LAW , THE PERSON HAD TO FILE THE VAKALAT ON HIS BEHALF IN THE CONCERNED COURT . HE CANNOT TAKE THE PLEA THAT SUMMONS HAD NOT BEEN SERVED ON HIM AND SO HE HAD NOT APPEARED IN THE CASE . IN THIS CASE HE HIMSELF ADMITS THAT HE HAD GIVEN HIS TEMPORARY ADDRESS IN HYDERABAD FOR AVAILING THE LOAN BUT HIS PERMANENT ADDRESS IS PUNE . HAD HE GIVEN A CHANGE OF ADDRESS TO THE BANK AS PUNE AT THE TIME OF LEAVING INDIA , AND IF HE HAD NOT CONTACTED THE BANK AND HAD NOT SENT ANY MAILS , THEN HE CAN TAKE THE PLEA THAT HIS PERMANENT ADDRESS BEING PUNE , THE BANK IS HARASSING HIM BY PULLING HIM TO HYDERABAD . ACTUALLY HE WAS KEEPING QUIET FROM 2011 WITHOUT MAKING ANY PAYMENT , WITHOUT GIVING ANY CHANGE OF ADDRESS ON THE HOPE THAT THE BANK IS UNABLE TO LOCATE HIM . BUT ACTUALLY THE BANK HAD VERY TACTFULLY HANDLED HIS CASE AND HAD GOT HIS EMPLOYER ADDRESS IN THE STATES AND HIS PHONE NUMBER . IF YOU GO TO THE HIGH COURT AND IF THE BANK HAD FILED A CAVEAT IN HIS LAST KNOWN ADDRESS , THEN WHEN YOUR WRIT PETITION COMES FOR ADMISSION , WILL NOT THE BANK INFORM ALL THE MATTERS AND WHAT HE HAD DONE WHEN HE LEFT THE COUNTRY . THEN IT WILL COME UNDER ONE MORE SECTION " DECEIVE AND CHEAT " .THAT IS INTENTIONAL CHEATING . THIS OBSERVATION WAS GIVEN IN A 2011 HIGH COURT JUDGEMENT WITH A LOT OF CASE REFERENCES , WHEN THE ICICI BANK PULLED UP A PERSON FOR 138 AND CHEATING BOTH AND HE WAS ATTENDING THE COURT IN MADRAS FR 2 YEARS FROM A DISTANCE OF 600 KMS FROM WHERE HIS LOAN WAS SANCTIONED AND HIS PLACE OF RESIDENCE WAS ALSO THERE . FINALLY WHEN HE CAME TO THE HIGH COURT , THE COURT QUASHED THE LOWER COURT CASE  ON THE GROUND THAT THERE IS A BRANCH IN HIS PLACE OF RESIDENCE FROM WHERE HE AVAILED THE LOAN AND THE BANK IS PULLING HIM TO MADRAS UNDER SECTION 138 AND 420 TO HARASS HIM . FOR SECTION 420 THE COURT OBSERVED THAT FROM THE STATEMENT OF ACCOUNT FILED BY THE BANK IN THE LOWER COURT , IT IS CLEAR THAT HE HAD REMITTED MORE NUMBER OF INSTALMENTS AND ONLY SOME ARE OVERDUE . IF HE HAD THE INTENTION TO CHEAT, THEN HE WOULD NOT HAVE REMITTED SO MANY INSTALMENTS . FOR " CHEATING THERE MUST BE AN INTENTION THAT IS DECEIVE AND CHEAT " . HIS INTENTION MUST BE A PRE PLANNED ONE .   

            YOU ARE TAKING A LOT OF CARE TO HELP HIM OUT BUT MR. SANTOSHSINGH'S OPINION IS THAT " NO NEED TO TAKE A CANON FOR AN ATTACK ON AN INSECT ". SO MR. SANTOSH SINGH'S OPINION IS THAT SECTION 138 OF NEGOTIABLE INSTRUMENTS ACT IS ONLY AN INSECT . THIS IS CLEAR FROM HIS OPINION GIVEN EARLIER.

         AS PER HIS OPINION " IN SECTION 138 CASE TILL THE ACCUSED IS PROVED GUILTY THE PERSON IS INNOCENT " . I REALLY PITY MR. SANTOSH SINGH BECAUSE HE IS CONFUSING BOTH CRIMINAL LAW AND SECTION 138 OF NEGOTIABLE INSTRUMENTS ACT . ONLY IN CRIMINAL LAW THE ACCUSED IS INNOCENT TILL HE IS PROVED GUILTY . BUT IN NEGOTIABLE INSTRUMENTS ACT " TILL HE IS PROVED INNOCENT , THE PERSON IS AN ACCUSED " .- JOSEPH WILFRED - 18/02/2014 AT 15.35 HRS    

" AS PER HIS OPINION " IN SECTION 138 CASE TILL THE ACCUSED IS PROVED GUILTY THE PERSON IS INNOCENT " . I REALLY PITY MR. SANTOSH SINGH BECAUSE HE IS CONFUSING BOTH CRIMINAL LAW AND SECTION 138 OF NEGOTIABLE INSTRUMENTS ACT . ONLY IN CRIMINAL LAW THE ACCUSED IS INNOCENT TILL HE IS PROVED GUILTY . BUT IN NEGOTIABLE INSTRUMENTS ACT " TILL HE IS PROVED INNOCENT , THE PERSON IS AN ACCUSED""

Mr Wilfred,

Please do not spread misinformation by writing this, although I have found fault with Santosh Singh in many earlier post, but he is right in whatever he stated here.

There is no presumption with respect to guilt of a drawer in S.138/139. Criminal law is a criminal law..Period.. 

DEAR MR. TRIVIDI

                                 I HAVE READ YOUR OPINION MR. TRIVIDI IN SECTION 138 OF THE NEGOTIABLE INSTRUMENTS ACT . BUT I HAVE NOT SPREAD ANY MISINFORMATION WITH RELATION TO THE ACCUSED IN SECTION 138 OF THE ACT . I HAVE STUDIED MANY JUDGEMENTS FROM 1994 ON SECTION 138 . I AM VERY SURE THAT THE NEGOTIABLE INSTRUMENTS ACT IS A SPECIAL ACT AND IN THAT ACT I AM VERY SURE THAT THE ACCUSED MUST PROVE THAT HE IS INNOCENT AND TILL THAT TIME HE IS AN ACCUSED ONLY . BECAUSE I HAVE RAISED THIS MATTER WITH SEVERAL SENIORS AS TO WHY THAT LAW IS DIFFERENT FROM OTHERS . THEY HAVE ASKED ME TO FILE A PETITION IN THE SUPREME COURT AND GET A VERDICT FROM THAT COURT . ANYWAY SINCE YOU HAVE INFORMED ME ABOUT THE OPINION IN THIS MATTER , I WILL VERIFY IT FOR A SECOND OPINION FROM SENIOR COUNSELS SO THAT I CAN UPDATE MYSELF ON THIS MATTER . KINDLY CLARIFY ME WHETHER YOUR OPINION IN THIS MATTER IS ON THE BASIS OF SOME SUPREME COURT JUDGEMENT OR RIGHT FROM THE BEGINNING OF THE ACT IT IS THE SAME AS THAT OF YOUR OPINION . KINDLY CLARIFY ME BECAUSE I WILL NOT MISLEAD ANYBODY WITHOUT KNOWING THE EXACT FACTS . EVEN IF I HAVE  DOUBT IN A MATTER , I WILL NOT EXPRESS MY OPINION . - JOSEPH WILFRED - 18/02/2014 AT 19:34 HRS 

IT APPEARS FROM THE QUERY THAT BORROWER PAID EMI FROM THE PERIOD 2007 TO 2011 AND THEREAFTER HE WENT TO U.S.A BY COMPANY VISA  AND SINCE THEN RESIDING THERE CONTINUOSLY.  WHEREAS, THE BANKER  FILED CASE AGAINST THE BORROWER FOR RETURNED CHEQUES  ISSUED AFTER THE PERIOD 2011 WHEN THE BORROWER WAS AT U.S.A THEN HOW THE BANKER RECEIVED THOSE CHEQUES ISSUED SOMETIMES IN 2012?  FROM THIS FACT ITSELF PROVE THAT THE BANKER TOOK POST DATED CHEQUES FROM THE BORROWER AT THE TIME OF SANCTIONING LOAN TO HIIM.  SECONDLY THE BANKER COMMITTED CRIME BY POSING THREAT TO BORROWER AS TRANSPIRES FROM HIS STATEMENT WHICH ALSO CAN BE EVIDENT FROM THE CALL LIST OF THE MOBILE OF THE BORROWER.  SUCH THREAT TO BORROWER FOR GIVING ILLEGAL PRESSURE TO LIQUIDATE HIS DUES SUFFICIENTLY ENCROACHED UPON THE BORROWER'S LEGAL RIGHT, FUNDAMENTAL RIGHT AND CONSTITUTIONAL RIGHT TO A CONSIDERABLE EXTENT AND IT IS A CLEAN CASE OF VIOLATION OF NATURAL JUSTICE ALSO WHICH OUGHT TO BE REMEDIED BY FILING AN APPLICATION UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA. WHEN ALL OF THE LOWER COURT PROCEEDINGS WILL BE AUTOMATICALLY FREEZE TILL DIISPOSAL OF WRIT PETITION..

1. Agreed that NI Act is a special Act, and it bypasses certain provisions of CrPC, the most important bypass is taking affidavit as examination in chief, in absence of accused.

2. You seem to be using word accused with innocence. A person is innocent in our criminal law till proven guilty, a person is innocent under S.138, under DV Act, under NDPS Act, under Prevention of Corruption Act, under 376 IPC till he is proven guilty. Why I am naming these acts, is that there are certain presumptions which are against the accused, but these presumptions can only be drawn if certain basic ingredients are proved and they are of evidentiary value and rebuttable.

3. For example under S.139, there is a presumption that so and so cheque was received by the Holder to clear certain debt or liability. Now to avail this presumption the execution is to be proved or admitted, the complainant must prove that he is holder (this aspect is erroneously not fully taken up by the Hon Courts). Once these aspects are proved then this presumption is granted to the complainant, now the accused must rebut it. So there is no presumption of guilt here. The presumption of innocence is almost a fundamental presumption, and always available to accused till he is proved guilty. I have not encountered any order, where the court has presumed that accused under S.138 is guilty from day one. It is ridiculous and illegal to ask someone to prove his innocence, the prosecution has to prove the guilt beyond doubt. Yes, the Hon court may ask, certain evidentiary value presumptions to be rebutted by accused. That is in all the laws that a rebuttal is required to be given for all the inculpatory evidences.

4. Take it this way, a cheque can be issued for many purpose, it can be issued to clear the liability, for Gift, for advance, for some kind of margin money, even for different liability if multiple liabilities are existing between two persons. Under the circumstances if the complainant satisfies the basic ingredients and states that so and so cheque was issued to clear the liability X, then the Hon court shall presume that "Yes cheque was issued to clear this liability only." Accused cannot say that it was given for Gift or for some other purpose without proof, if presumption was not there then complainant would be required to even prove that the cheque was not given for Gift or for some other purpose, which would invariably be very difficult, and the accused will always come out defeating the very purpose of Act.

There is no presumption with respect to amount (again erroneously taken by courts), it must be proved by prosecution. For example X  takes  Scooter Loan, Car Loan and Home Loan from Y. Now a blank cheque was issued at the time of Scooter Loan. In due course X clears his Scooter Loan and Car Loan but fails to repay the Home Loan.

Y mis-uses the cheque as given at the time of Scooter Loan, fills it up and gets it dishonored and files the case under S.138 and comes up with a story that the said cheque was issued by drawer for so much of pending Home Loan (he must prove the amount against Home Loan). Once this is done the Hon Court is bound to presume that the cheque was indeed issued for Home Loan. The accused can rebut this as follows (apart from many technicalities):

1. That the amount as alleged/proved by complainant is not correct.

2. That the cheque was given for Scooter Loan.

3. he can even prove that the cheque was signed and issued six months before the dishonor.

I am glad that you wish to take up such matter with Hon SC. It is shocking that majority of the counsels feel that there is no need for complainant to prove the debt, and accused gets wrongly convicted. It is my urge to all the defense counsels to fight tooth and nail that the prosecution must prove the amount as alleged in the debt. How long the Hon SC will remain the mute spectator that S.139 is misunderstood, badly misunderstood by the Hon courts. There is no presumption with respect to existence of facts behind debt (Read S.101 of The Indian Evidence Act). 

I am putting this in the new thread for the benefit of others.