Accused in sec 138 negotiable instrument act

Dear Suresh

Giving a Check with your signature means you have authrized that persion to fill up the ammount and other details on it, and law does not support you here. This is a fault at your end, you may suffer for it.

However if you can prove that, Your friend is a money lender by inducing evidence as witness or documents, than only you will be in a position to say that He is a illegal money lender as he as no registration under Money lending act of state, and an ammount lended illegaly can not be recovered legally.

However for more you have to Post a copy of Notice and other details. 

Dear Suresh

Giving a Check with your signature means you have authrized that persion to fill up the ammount and other details on it, and law does not support you here. This is a fault at your end, you may suffer for it.

However if you can prove that, Your friend is a money lender by inducing evidence as witness or documents, than only you will be in a position to say that He is a illegal money lender as he as no registration under Money lending act of state, and an ammount lended illegaly can not be recovered legally.

However for more you have to Post a copy of Notice and other details. 

You have to contest the case with expert help otherwise since the cheque is signed by you so you have to take serious efforts to come out of it.

Mere allegations about money lender and heavy interest will not help you in the court , there will be many other technical mistakes.

It is now a recognised fact that the execution of the cheque must be proved by the complainant. Mere signature is no proof that the cheque was executed/drawn by the accused. Now you state that:

1.  You only signed, so it was a blank cheque... Can you prove it.

2. Can you provide some sound evidence that the cheque was given 2 years earlier.

3. Can you prove that the handwriting was someone from complainant side, without being over aggressive.

4. Can the complainant prove that the entire cheque was either filled up by you or under your conset.

Answer these questions to yourself, may be some solution will come.

Blank cheque is not a cheque in the eyes of law----Blank signature

Blank cheque is not a cheque in the eyes of law. Where a blank cheque was issued without mentioning the amount payable, cheque was duly signed by the drawer, but material particulars were not filled.The court said that it did not constitute a cheque.  Penal provisions of Section 138 were not attracted.The accused were aquitted. Refernce:

Ramdas Anant Naik Verses Jacob Fernandes, (2006) 3 BC 271 (Bom)

Very good efforts for locating this jugement.

experts from this citation-

9. The Trial Court on the basis of the evidence on record has given a finding that a blank cheque was issued to the complainant after the evidence on record and has held that if a blank cheque is issued by any person and amount payable is not mentioned it does not constitute a cheque and, therefore, the penal provisions of Section 138 of the said Act are not attracted. The Trial Court has relied on the judgments of the Supreme Court in support of the said finding. 

Shree Ajit sing cheema please also post the SUPREME COURT  judgement referred in the Mumbai HC judgement for validity of BLANK CHEQUE.

Blank cheque is no cheque at all

In the judgement  reffered  as   Ramdas Anant Naik Verses  Jacob Fernades under para 9 of the judgement there is a mention that “The trial court has relied upon judgement of Supereme Court in support of the said findings”.However the following judgements by Supereme Court are Quoted  but none of the quoted judgement is on Blank Cheques.

1) Tota Singh verses State of Punjab

2 ) C. Antony Verses K.G.Raghavan

3 ) M/S Kusum Ingots and Alloys Ltd. Verses Pennar Peterson Securities Ltd.

4)  Ashok Yashwant Badave Verses Surendra Madhav Rao Nighjojakar

The most important judgement  on blank cheque by the Supereme Court, may be the following

Abdul Karim verses State of West Bengal   AIR 1975 SC 1506.

Dear Mr. Trivedi,

If it can be proved by the accused that:

some sound evidence that the cheque was given 2 years earlier.

how does that help the accused in that case?

This is tricky, because as per law the S.138 is applicable within 6 months from the date of drawn, in such cases their are few possibilities.

1. Cheque completely filled up but PDC of 2 years: Accused may not get relief, beacuse it becomes the cheque only on the date which is mentioned on the cheque.

2. Blank cheque wherein only date is left blank:  50:50

3. Blank cheque where apart from date atleast the payee name or amount is left blank: Accused gets the relief.

This is the sound defense, needs solid argument backing.

Dear Mr. Trivedi,

What about this 4th scenario :

Loan not given at all.  No financial dealings/transfers of any kind with complainant. Cheque not given, but stolen. Cheque totally blank (so old that no memory of signature - may have been traced). Complainant claims cheque postdated by 2 years 9 months (cooked up time period). Plausible reasons of harassment and intimidation since other cases going on. One more thing - complainant mentions that the loan was agreed to be for 3 years - statute of limitation is 3 years for an agreement to be valid??

Dear Sir,

a)      Cheque issued by me in march 2010 and got the bank endorsement in which the book let of the particular cheque leaf which is bounced is issued in jan 2010 and i approached the money lender in march 2010, took a lakh (interest of rs 5%) by issuing the blank cheque with only signature and nothing written on it, not even crossed, cause he always takes the blank cheques against the money he lends.

b)      March 2011 he bounced it for 6.5 lakhs mentioning in the notice that I have approached him for the money to invest in business in jan 2010 and he gave me this cash of 6.5 lakhs  without any interest as a friend and well wisher and in December 2010 when he approached me for return of his 6.5 lakhs in turn I promised him itseems that ill give him in January 2011 but failed to give cash so gave him cheque of rs 6.5 in January 2011 … till march 2011 inspite of so many calls and talks I didn’t pay him itseems so he submitted the cheque and this is the story on the notice but we didn’t have any phone conversation or threatening done by me that I wont give money and all which he has mentioned on the notice..

c)       In the court while submitting his evidence he said that he is pujari in the temple , yes he recently joined temple to do pujas but his many profession is money lending and he is not a licensed money lender.

d)      All the interest I paid is by cash nothing by cheque or money transfer cause he never used to accepts anything in such form where the records were there and even I used to pay him till some issue poped at us and had a fight in august 2010.. even I used to keep paying the interest as there was no issues and never thought that this situation comes between use as we were good family  friends

e)      In jan 2011 before sending me the notice he threatened me by sending cops to my office as he knew a sub inspector , they took me to the station and subinspector threatened me but I didn’t get scared and told I wont and cant give whatever the money he is claiming, in the file which he got to the station there I saw few of my other cheques what I had given earlier whenever I used to take money and give the cheques.. after returning the money I used to tell him to dispose the cheque but he didn’t.. I found around 5 to 6 cheques of mine in that file.. after this I gave the letter to my banks stating to stop payment of all the cheques which I haven’t used till date.after this drama he send the notice to my address stating cheque bounced  for 6.5lacs.

f)       We were friends for last 12 years, studied together in first and second puc in 1998 to 2001

g)      All I wanted is fight this and get the justice .. please do advice me on this ..

Thanks and regards

1. In such circumstances if you deny the signature itself on the cheque, then how come Bank did not mention mismatch of the signature ?? Take a photocopy of the cheque (it would have come along with summon) and verify the signature with the Bank.  At the time of clearing Bank staff first looks at the fund and then the signature, they should first check the signature (validity of instrument) and then other aspect. Once the execution itself is denied, then complainant has to prove the execution of cheque first before getting the benefit of S.139.

2. Limitation does not seem to be playing any role here.

3. If the case is fought well, then sufficient fault can be created in prosecution theory to get the acquittal.