Complainant evidence under section 138 of ni act

We are not the judges. The accused has approached us for advice. We believe the accused is truthful in his version. If he is not truthful our advice will not help him and he will lose the case. As the accused says the aim of the Complainant is to harass him and not to get any money from him. The Complainant will try to prolong the case by confusing the court between a furniture loan actually given and a false loan claimed by the Complainant for which the cheques are his evidence. According to the version of the accused the Complainant has no other evidence The accused must break the sole evidence. He should bring in the furniture loan case only to explain under Section 139 why he issued the cheques in the first place..

The Complainant is a private limited company registered under the Companies Act, 1956. The application for the said furniture loan was made on a prescribed format and the amount of Rs. 40,000/- was disbursed in cash. The company in its notice to the accused has already accepted that a furniture loan was given. Upto this point the complainant is correct.

Only the blame is : "A separate personal loand was given against two cheques to be encashed at the interval of 6 month. (And this is false)

Anyway, a great advantage which has been achieved after putting forward this problem before the Forum is that now the accused can ask the complainant to produce the following documents in support of their complaint:-

1. A copy of the Company Policy on Loan to be given to employees. ( Normally, a company does not approve any further loan if the earlier loan is not repaid in full, whereas this company is alleging that a personal loan was given while the furniture loan was already standing and being repaid in EMIs).

2. A copy of the  request- letter  or Loan-application from the accused  for the alleged personal loan.

3. A copy of the sanction letter duly accepted by the accused.

4. A copy of the Loan agreement executed between the accused and the complainant. 

5. Extract of the books of accounts having entries of both the loan-amounts e.g.  Furniture Loan and alleged personal loan.

6. A copy of the accepted Appointment letter (Accused did not accepted the appointment letter).

In nutshell it can be concluded that this forum has given all the suitable advices which will definitely be of use before the magistrate.

Suggestion Required : As there is scope and doubt that the complainant can make forged  documents, can accused request the magistrate to start Summary Trial and presurise the complainant to produce the above documents without lapse of time ?

 

 

 

The Complainant refers to furniture loan in his notice. He also claims that a personal loan was given against the two cheques already in his possession. Does it mean that the Complainant admits that the original purpose of the cheques was to cover the furniture loan, but later the Complainant gave a separate loan of Rs.40000/- and applied the cheques for the return of the loan? If so the burden on the Accused under Section 139 is already discharged by the Complainant himself on his own admission. Now what remains to be established that his claim of having advanced a second loan is false. Cases will appear simple. But even for simple things Indian courts take a lot of time. Judges preside over so many cases on a single day that they do not have time to read things and apply their mind. Instead asking for things in writing the Accused should ask for the presence of the Complainant himself in the court (instead of his lawyer only) and straightaway cross-examine him and ask him in quick succession where the documents are. He should not be given adjournment to produce the documents later. He should have produced them at the very outset along with his complaint. When he is not able to answer the questions, the Accused should allege that it was a false case and request the court to dismiss the case. This is like a game of cards.

Law on NI Act is clear cheque can be given only for an existing debt.   Loans cannot be disbursed keeping the cheque as collateral security.