N.i. act
Ajay Bansal
(Querist) 28 April 2013
This query is : Resolved
My client took a loan of Rs. 250000/- from Axis Bank, Hisar on 6.12.2007. At that time Bank took his 10 singed blank cheques. In 2010 one of said cheque has been misused by Bank and got it bounced and file a complaint u/s 138 N.I. Act. My client through me started defending himself on ground of all aforesaid position. Bank denied that it took any signed blank cheque on 6.12.2007. Now Bank has used another cheque of my client and got it bounced on 3.1.2013 and then filed another complaint on this second cheque. Now I say when my previous cheque's litigation os pending in court, so how can I issued another cheque to Bank, because first of all I would got compromise in pending case then I could issue second cheque. Kindly advice me whether I have a proper defence.
V R SHROFF
(Expert) 28 April 2013
Cheques were issued before Six months.
Your Bank pass book & chq bk will show it clearly.
You issue notice to Bank, not to use the chq & rtd to you. Also claim , it's are blank signed che of the year 2007..
It will stop bank to deposit other cheques, and provide grd for ur defence.
DEFENSE ADVOCATE.-firmaction@g
(Expert) 28 April 2013
With the recent citation of SC in LAXMI DYECHEM case many such defense tactics have been closed by SC.
However there are otherwise many normal and regular mistakes in BANK and NBFC cases where they bungle in notice and pleadings in complaint. It is due to simple reason that BANKS employ high profile advocates and who in turn entrust the job to juniors who just copy paste from old cases and blunders creep in.
You should read every word every line of each and every piece of paper submitted with complaint and it is always sure simple and easy to come out of any cheque bounce case.
R Trivedi
(Expert) 29 April 2013
attempt S.482 with HC, courts are also frustrated because of this blank cheque issue, so your argument coupled with some bank evidence may help, although HC does not consider evidence of general nature under S.482, but you have good chances.
Otherwise if both the cases have started approach the lower court tio club both the cases, as it pertains to same transaction.
As suggested by Shroff, please carefully analyse the Bank statement and cheque book counterfoil, also loan agreement, this will give many required evidence of cheques issued blank in 2007.
prabhakar singh
(Expert) 29 April 2013
So Mr.Bhagat has sounded in author's voice.
DEFENSE ADVOCATE.-firmaction@g
(Expert) 29 April 2013
Blank cheque defense and HC S 482 quash both options in cheque cases have been closed by SC in LAXMI DYCHEM case, please go through that citation posted by many experts on this site many times.
Jeevesh
(Expert) 29 April 2013
Ld. Mr. Bansal,
Athough bank is denying that it didn't took any blank signed cheque from your client but still it cannot be ruled out that your client handed over filled in post dated cheques.
As far as the question of how can your client have issued another cheque to Bank, because pending litigation the relevant thing is the date on which subsequent cheque is issued. If the bank says that the subsequent cheque was issued during the impending litigation than you might have a valid defense. But if the bank says that all the post dated cheques were issued together in 2007, than that would be different case.
DEFENSE ADVOCATE.-firmaction@g
(Expert) 29 April 2013
It is usual and known practice that all banks and NBFCS take advance blank cheques but it can not be proved.
1) Very recent views of the APEX COURT has simplified the concept of cheque law. That is if there is liability you can not nullify the right of holder of cheque even blank, lost or even accused claims it to be misused.
2) Than the next stage the APEX COURT conceded the right to rebut the liability to be legal.
So unless the liability is not proved illegal all other such defenses have no weight.
Yes still any cheque bounce case can be won by accused but by hard work in exploiting other mistakes of the complainant which are always there and many without exception.
R Trivedi
(Expert) 29 April 2013
S.482 is the right of party in litigation, It is the extraordinary power of the HC given by the legislature, Supreme Court cannot quash it.
Nowhere SC gave the blanket right to possessor (holder is a different animal altogether) of the Blank Cheques. The SC time and again has stated that a defense which can be proved only at trial, cannot be foreseen by HC under S.482, only under absolutely incontrovertible evidence the complaint can be quashed, not otherwise, but even then the right is always with the accused to approach the HC under S.482.
My only question with the forum is what if complainant counsel is very intelligent and does not make any mistake ? Cases are won on the mistakes of prosecution, no doubt, but entire statue cannot stand on the mistakes of the prosecution.
The conviction rate under S.138 is quite substantial, it cannot be suggested that all the counsels for accused were inept and did not defend their client properly.
Mr Bansal, Axis Bank could not have given a loan of even a penny without collateral security, please find out what is this collateral security and tell the court that Bank cannot have both the things that is collateral security as well as threat of S.138, what about your collateral security, will it remain with the Bank till your client is punished under S.138 ?
Please note that collateral security is the money in itself, Bank cannot choose at will to keep this security and pray to the court to punish your client... This is non sense ?
I am again emphasizing that Hon SC must come forward and declare point blank that cheque cannot be given in advance in exchange of loan money. S.138 shall not be applicable on such matters. 70% cases are out of system.
Yes it is a different matter that once the loan is used and at a later point in time if drawer issues a cheque to settle the loan liability with explicit communication and agreement.
DEFENSE ADVOCATE.-firmaction@g
(Expert) 29 April 2013
Please read this-
Thus although a petition under Section 482 of the Cr.P.C. may not be entertained by the High Court for quashing such proceedings,
………..…………….
(Gyan Sudha Misra)
New Delhi; SUPREME COURT OF INDIA
November 27, 2012
R Trivedi
(Expert) 29 April 2013
Yes, it is right, what Gyan Sudha Mishra has stated that if someone issues the Stop Payment instructions, then the reason behind this stop payment can be bonafide like defective material etc, but this has to be ascertained by trial court not by HC under S.482.
This line read with totality of the addendum order by her does not say that accused cannot go to HC or HC will not entertain under S.482. Please do not read this line in isolation with the case matter.
I give you an example, let us say I issued a cheque of X amount, this cheque gets dishonored and I release a DD for the X Amount to payee after that. Payee is a dishonest man, he approaches the court and files the case under S.138 after doing drama of notice etc. Court will take the cognizance because my side of story is not with the court. What do I do ? Only alternative left with me is to rush to the HC under S.482.
Second example on Vicarious liability, generally complainant tries to pull in all the directors of the company, if I am falsely dragged into the case and cognizance taken, then I can approach the HC under S.482 with Form 16 as submitted to ROC that I was not the director at the time of issuance of cheque or at the time of transaction.
HC will weigh these substantially incontrovertible evidences and if comes to conclusion that under such conditions conviction is not at all possible then complaint gets dismissed.
Mere stating that material was defective and hence stop payment instruction was given is not sufficient for HC under S.482.
DEFENSE ADVOCATE.-firmaction@g
(Expert) 29 April 2013
Such type of arguments do not work in actual practice in court room where the accused is facing the prospect of conviction.
And even before the above citation of Justice GYAN SUDHA MISHRA the SC has always restricted the use of S.482. Read earlier citation by SC.
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1735 OF 2011
ARISING OUT OF S.L.P. (CRL.) NO. 10005 OF 2009
Court also referred to the decision of this Court in
State of Haryana v. Bhajan Lal reported in 1992 Suppl. 1
SCC 335 and also to the settled position of law that
genuineness of the allegations/charge is an issue to be
tried and the Court in exercise of its jurisdiction under
Section 482 of the Code of Criminal Procedure cannot
delve into such factual controversy so as to quash the
proceedings.
R Trivedi
(Expert) 29 April 2013
you wish to convey that no argument of accused will work in the court and still you say any cheque bounce case can be won.
Please read you stated that S.482 is taken off by SC, which is incorrect. You highlighted a small para of SC judgement, which has an explosively misleading notion if the entire order is not read.
When it was pointed out then you went to Bhajanlal, my dear friend, the S.482 is an exceptional power with HC with respect to any proceedings in subordinate court, it is very wide power and can put a break on miscarriage of justice or misuse of process of law at any stage. Supreme Court has commented on S.482 many a times and now it is a settled principle that for quashing any proceeding at the threshold, the HC must be very careful, only when HC is convinced that further trial shall be a misuse of the process of law, it can be quashed. HC is not to get into ordinary defense of accused, which primarily falls in the ambit of trial court.
DEFENSE ADVOCATE.-firmaction@g
(Expert) 30 April 2013
This is a free site and you can argue endlessly.
If you have any actual experience of cases solved by s-482 in cheque bounce as per you views pl let all get benefit from it.
R Trivedi
(Expert) 30 April 2013
I am neutral on case decision, I do not pomp that any cheque bounce case can be won.
Incidentally if you feel so confident that any cheque bounce case can be won, please attach a standard questionnaire which you must have prepared for cross ( I remember you suggested somewhere that accused should not even reply to legal notice ?), please do attach this list for any specific case, this will help me.
DEFENSE ADVOCATE.-firmaction@g
(Expert) 30 April 2013
1) Search the site even I have given detailed cross questions and tactics.
2) When earlier people like you were making such comments on me I had stopped contributing.
3) When I got a multi million case against a mighty FII and against international advocates and when they told that they engaged me due to constant snipping against me on this site so I started contributing again. Their reasoning was that quality and content of contribution is instantly visible.
I can not give names and case details due to obvious reasons but as on today any body interested can come and see my defense tactics at various MM courts at Mumbai, Cr court Bhadoi UP and Patna Bihar and some courts at rural Maharashtra.
I was surprised when at MM court Vikhroli and at Bhadoi UP advocate friends instantly co -related me with my comments on this site even though I have stopped giving my photograph.
And to all the friends who are in actual practice and dealing in cheque cases can contact me for line of action which may differ from case to case still every case can be won.
R Trivedi
(Expert) 30 April 2013
The problem is same, people like you make statements and run away when confronted.
Please tell the forum once again what you meant
".....HC S.482 quash both options in cheque cases have been closed by SC...."
Not as per me but as per law this is patently incorrect and misleading statement.
DEFENSE ADVOCATE.-firmaction@g
(Expert) 01 May 2013
You have been making harsh comments against me from day one on this site but in the process I got vast NATIONAL publicity so pl go on doing it.
Law in not my personal property if you or any body else feels S.498 or QUASH at HC is solution , please tell us if this has been achieved any where in any case.
In the present case the loan is just 2.5 lacs and so EMI may be few thousand so instead of spending huge amount in legal fees for going to HC the accused can pay up and close the matter., or take take proper defense and win the case at lower court level only.
We provide solutions and not theory and do not preach what others or courts should do or not do but find solutions from the existing way of working of our legal system.
And so our message continues to the defense advocates and all accused in cheque cases that with proper defense in any cheque case the case can be won at lower court level.
R Trivedi
(Expert) 01 May 2013
My stand is very clear that law is made to punish people who have committed a wrong, if anyone has given a cheque against certain bonafide transactions and intentionally cheated the person who trusted his cheque, he must be punished. I do not say all cheque bounce accused are guilty. The duty of counsel in defending the accused is very sacrosanct and does not come in the way of philosophy of law.
You have been getting publicity because of your misleading statements : That any cheque bounce case can be won.
Now instead of diverting the issue, please answer my question about your understanding of S.482 with respect to S.138. I hope you will not run away this time
If you want citations just make a google search or go to Indiankanoon web portal and just type few words like S.482, you will get plethora of complaints on S.138 dismissed by honorable HCs all over India.
At the end accused wants acquittal, but how long an advocate survive on mistakes of prosecution ? My question is what if prosecution lawyer is as good as you are ?
R Trivedi
(Expert) 01 May 2013
Some simple examples of S.482:
1. The name of proprietor not there in the cause title of complaint : Dismissed under S.482 by HC.
2. Authority letter holder filed the case on behalf of proprietor : Dismissed by HC under S.482.
3. Numerous cases of vicarious liability : Dismissed by HC under S.482.
(You will find many more when you choose to search)
And as far as expenses of apprroaching HC is concerned, your approach is again flawed, please note that it is better to approach the HC (if valid cause) under S.482 instead of spending years in the trial. The opportunity and money cost to accused in the trial is far more than that of approaching the HC.
DEFENSE ADVOCATE.-firmaction@g
(Expert) 01 May 2013
Moneylenders, banks, NBFC s are misusing the cheque law since money due is civil liability only which has been made criminal.
So we help all the accused to come out of the cheque bounce cases by using various legal provisions of law.
R Trivedi
(Expert) 01 May 2013
I fully agree with you on this, in this post itself I have written as below..
......I am again emphasizing that Hon SC must come forward and declare point blank that cheque cannot be given in advance in exchange of loan money. S.138 shall not be applicable on such matters. 70% cases are out of system.......
But answer on the issue of S.482, which you have declared non reachable.......
DEFENSE ADVOCATE.-firmaction@g
(Expert) 02 May 2013
Cheque bounce law is HARSH and favors the illegal money lenders including banks and NBFC S.
So cheque bounce accused should fight the case with proper care from day one and it is always easy sure and simple to come out of it whatever may be factual matrix.
JUST BECAUSE THE LAWS ARE FRAMED BY MEN ONLY SO ANOTHER SET OF WISE PEOPLE CAN ALWAYS FIND WAY OUT OF IT.THAT IS WHY ANY CHEQUE BOUNCE CAN BE WON AND WE WIN THEM IN REGULAR ROUTINE.
We quote again and AGAIN the time tested MURPHYS LAW that -
If there is a possibility of several things going wrong, the one that will cause the most damage will be the FIRST to go wrong.
If you perceive that there are four possible ways in which something can go wrong, and circumvent these, then a fifth way, unprepared for, will promptly develop
R Trivedi
(Expert) 02 May 2013
I have no problem with your philosophy or theory or sermons.....
But answer on the issue of S.482, which you have declared non reachable.......
