If you do not know English I will not find fault with you. But you will appreciate that we can communicate only through a language which both of us know, Also the language used should be grammatically correct. Otherwise the complainant will become the accused and the accused will become the complainant. Your case is in court. Is the language of the court English? If so, with the kind of language I see here it is possible that you may get a wrong judgment. For instance you say " i had been given that cheque to his son as advance". What do you mean here, you gave a cheque to the son or the son gave a cheque to you? Later also it is just a collection of words which one has to sort out and arrange to derive some meaning from it. I gather the following from your narration. You gave a blank cheque to the son as advance to purchase something. He did not use the cheque. His parents entered the name of his mother as payee and an amount of Rs.5 lakhs and presented the cheque in their bank. The cheque bounced. After following the mandatory steps under Section 138, the mother filed a case against you. She claims that she had given a loan of Rs.5 lakhs to you, thus claiming that you failed to discharge a legally enforceable liability. Presumably she claims that she gave you the amount in cash in the presence of her son and husband. Your defence should be as follows:
1. The cheque was fradulantly filled up by the son-mother-father trio which is a criminal offence. You can ask for calling of the son and husband to stand in the witness box in the court for cross-examination by your lawyer. You can also demand that the cheque should be sent for forensic examination to determine the hand-writing, the pen, the ink used, the age of the writing etc of both the filled up material and your signature. What they have allegedly done is an offence punishable under IPC.
2. Payment and receipt of any amount in cash in excess of Rs.20,000/- is an offence under the Income Tax Act (I can give you the sections if you want) and the penalty for it will be an amount equal to the amount so given, in this case Rs.5 lakhs. You can also allege that the amount if paid would be black money on which income-tax was not paid. There is a Supreme Court judgment that loans advanced using black money are not recoverable under NI:138.(I may be able to give you copy of the Supreme Court judgment).
3. Normally in a case like this the buden of proof that the cheque was issued in discharge of a legally enforceable liability would be on the Complainant. But Section 139 transfers this burden on the accused (which is against the general principle "presumption of innocence in the absence of evidence"). In a case like this where fraudulence in the construction of the cheque and the genuineness of the source of income are suspected the burden of proof gets retransferred to the Complainant.
It appears to me that your lawyers are inept and inefficient. Are they sleeping and only collecting their fees from you?
All that I have written above is valid provided that I have correctly decoded your post.
![Dr. MPS RAMANI Ph.D.[Tech.]](/img/avatars/my_avatars/84227.jpg)
