Burden of proof regarding undated cheque

cheque cases are won or lost on technicals.

Once the cheque is proved to have been given by accused and it is bounced than all such other defenses has no use.

Yes you can contest on liability which may not be legal.

It is immaterial that cheque was given blank,important point is that if cheque bears the signature of accused and is proved by cogent evidence than no any such type of defence will help you.

You have raised few questions and I have differing opinion with respect to above ld members:

1. In general in your case there is as such no burden on complainant as you have stated.

2. If the complainant states that he received the cheque in 2010 fully filled then, you can prove:

  a. That the cheque was issued in 2008 and it was blank when given, now the problem is how do you prove this,

1. Your cheque counterfoil, showing entry against this cheque as left blank, while others are filled up.

2. Other Cheques of same series cleared way back in 2008.

3. Some communication during 2008 with complainant.

4. High improbability of your issuing cheque in 2010, lack of reason, in your case the account was closed in 2008, so why would you give a cheque in 2010 knowing fully well that it will bounce, this has potential to discard prosecution story, if poorly and falsely written.

5. Get a hold of deposit slip from the bank, or if you know complainant side well, since the cheque is filled up by complainant side, find out who did it, this way you can prove that it was blank when given.

6. Forensic Ageing test..... But unfortunately courts have started rejecting this..

The point is no defense of accused is overruled if presented with legal and admissible arguments and proofs. But many of these points must get extracted during cross examination.  Many a times counsels rightly advise accused not to be witness under S.315 , but by the time you reach the stage of S.313 and see that odds are already quite against you, then it is should be seriously considered by accused to become the witness (no affidavit). Mostly complainant fails to prove the liability and takes the help of presumption under S.139, so an accused equipped with a good or probable evidence against any of the material story of complainant must come forward and get himslef examined after due deliberation with his counsel. Should avoid controversial and harmful points in examination, because of possibility of some what tough cross examination.

1)  You have posted your querry many times and have got advice from so called experts about BLANK cheques or SECUIRTY cheques . Whether such advice was of any use to you in actual court case.

2) Advocate GOYAL has given the real situation .

3) Even at this late stage contact an advocate who has actually contested the cheque case and you can come out it.

Laxminarain, No need to expose about your limited knowledge of law in every post.

Please search and read the below two orders fully ( do not read with a mindset that you have to counter anything and please do not bring that Dychem order also into your mind). These orders will clear substantial cobwebs about blank cheque which you and other friends of " You can win" category" are having.

Some more points for the better understanding of this blank cheque issue:

1. If the complainant does not mention in his complaint that it was blank when received, then later on he cannot take a plea that under S.20 he has the authority to fill up.

2. Mostly the blank cheques are filled up at the time of deposit and in all likelyhood the deposit slip filled up along with the cheque, will also be in same hand writing.. So whenever there is a blank cheque story, the defense must seek the deposit slip from the complainant bank. This step should be carried out after confronting the complainant in cross that he or his side filled up the cheque (which he will deny). Obviously accused is not going to fill up the deposit slip for complainant.

Finally, Mr Laxminarain,

Please highligh a single post where you or your "You Can Win category" friends have given any suggestion, I have not seen anything other than following funny lines..

1. YOU CAN WIN, FIGHT PROPERLY FROM DAY ONE.

2. GIVE DETAILS OF THE CASE OR SEND BY EMAIL FOR PROPER LINE OF ACTION.

3. CONTACT A GOOD LAWYER, YOU CAN COME OUT.

4. ANY CHEQUE BOUNCE CASE CAN BE WON IF FOUGHT PROPERLY.

5. ALL THE DEFENSE OF ACCUSED IS CLOSED BY SC IN DYCHEM ORDER.

6. CHEQUE BOUNCE CASE IS WON ON TECHNICALS.

You and your friends' all the posts are variance version of above 6 lines.  Please contribute with some purpose and for use to querist, do not make such nonsense statements everytime.

Cut and paste and bookish knowledge do not help in actual court cases.

Kaspoorsatish you are the proper person to tell whether such lousy defense helps in the court.

If the knowledge does not help then WHAT DOES HELP ???

I am sorry at your getting reduced into a such a miserbale state that you lost every iota of confidence in you, now asking the querist also to jutify your stupidity.

I request all the young counsels and other concerned people to please just go through above two orders, another order is Mandvi Coop Bank case by Hon HC, there are many such orders which certainly helps in preparing proper defense or even framing the complaint. The order of Kerala HC proves, that a great understanding of law, great thinking, is what required to come out of complex situtions. How these order helps is different aspect but they provide a clear perspective that justice in higher courts is done with a clear vision. Mr Laxminarain is still to encounter this aspect of justice delivery and he is still stuck in day to day aspect of trial court, where due to extreme load on the work, the level of argument is reduced to facts infront.

First I would like to mention some law which is not read by any one -

Section 68 of Indian Stamp Act - A post dated cheque is illegal. There is a fine of Rs. 1000/- on issuer as well as presenter of the cheque. A post dated cheque can not be presented for payment. That is illegal.

Section 20 of Negotiable Instruments Act - An undated cheque is not covered by section 20. Without dating the cheque the proper stamp duty on a negotiable instrument can not be calculated. 

Schedule to stamp Act - Please cheque the rates of Stamp duty on Bill of Exchange. Understand why Section 68 of Indian Stamp Act was enacted.

See definition of cheque in Indian Stamp Act and Negotiable Instruments Act. A cheque cannot be made payable in future. It is always payable on demand, On demand means that payment can be demanded immiately after drawing of the cheque.

Usually the Complainant leads evidence by way of some witnesses. Ask the witness - who received the cheque. Once the accused makes a statement that he gave a blank cheque - then issue must be settled by cross examination of the complainant. Usually the finance companies maintain records of receipt of the cheques. They also make entries in computerised records. Ask questions relating to that.

Usually the companies follow standard procedures for financing the loans etc. Ask specific questions during cross relating to the procedure followed.

Make the Managing Director your witness. Pose the questions to them.

Ask some one to call the company for another loan requirements. When the person comes record conversation with him. Produce that evidence.

There are presumption but these can always be broken. The accused can be examined as a witness. Once he refutes the allegation, the burden of proving otherwise will shift to complainant.

The most important point to ask the complainant is the transaction for which the cheque was given. If the transaction was in 2008 then your statement that you gave the cheque in 2008 is also ok.

Section 138 should not be made applicable to past debts. It is unconstitutional. It is against Directive principles of state. Section 138 was introduced to help trade and commerce without the botheration of giving huge amounts of cash which increase the risks of crimes of snatching cash.

It is a kind of fraud if you give a cheque to some one while receiving goods or value from him and it bounces. When you give the cheque there is a belief and undertaking on behalf of the giver of cheque that it will honoured on presentation. If it bounces it is fraud. There was no need of section 138 in the first place, Even in period before 138 the person could be punished for fraud.

In case of past debts no such assurance or understanding is there. The person receiving a cheque for past debts does not lose anything.

He issues the cheque knowing well that there is no balance in bank. So he does so under duress from the other person. He value is paid under duress then it is not legal

Mr Bhalla, 

This S.68 of the Indian Stamp Act is another live example that how NI cases are being mis handled even up to the highest level

Very recently Hon apex court came up with a ruling, that a PDC is a bill of exchange from the date on which it was made till the date it bears.

Now this reasoning of the Hon SC is in direct breach of this section. Moreover the most astounding fact which becomes clear from S.68 above (and S.46 of NI Act) is that the date of drawn of a PDC is the date on which it was made, not the date it bears. so if this date (admitted or proved) is beyond six months of the date of dishonor, then S.138(a) is not at all applicable. Mindless exercise is happening in the name of S.138 at all levels, even if we continue for few decades with this kind of interpretation the objective of legislature will not be served.

The presumption under S.139 is only for the fact that the cheque was received for some liability (purpose) not for the truthfulness of the liability. But it is being understood that whatever liability complainant attaches, stands proved, now accused is required to disprove. This is bad.

I am convinced that the courts have over stepped and created a mess called S.138, law is perfect but interpretation by hon courts is absolutely perverse. Sooner the hon SC takes suo moto cognizance, better it is.

There is a great force in your argument that this penal provision should be applicable only when the cheque is issued in exchange of something, thats a very ideal situation, but something similar to that must be thought of to curb this menace. 

Hello Sh. R. Trivedi

I did not notice that you replied to my notes above.

There is more in law then above. And that is extremely serious for the SC or the govt to handle.

Since Sec 68 of the stamp act makes the issue of PDC illegal, no recovery suit can be filed in any court to recover the principle amount.

If in a case, a person give Rs. 10 lacs for murdering some one, but the other person does not murder, can he go to the court to recover the amount of Rs. 10 lacs paid.

The answer is no. Section 10 of Contract act says if consideration or object of an agreement is illegal then it is an illegal contract/ agreement and illegal agreement is no law.

Before cross examination complainant has withdrawn the case on plea that this is civil liability and he will file civil recovery suit