The offence u/s 138 N.I.A- No it is not a dispute of civil nature- If the cheque is bounced a person is liable under the relevent law- u may use the receipts as a part of payment and u should take the defence that the cheque was given as colletral security and the whole of the loan has already be repaid.......

You need to show some proof for the full and final settlement of the loan . Use the receipts given at the time of repayment.  The cheque given to the bank as collateral security can be used in case of non repayment of loan taken as per the law. So, try to prepare your defence based on the receipts or any kind of acknowledgements available which shows that the loan was paid off.

1] you can use your bank transactions details from where the loan was been paid. 

2] your loan closure confirmation details, 

Thanks for advise

There was dispute in amount, so final settlement of loan not reached, Cheque was given before the loan was actual given, it is standard practice of these private lenders to get signatures on blank papers, cheque.

I read Bombay HC ruling  that there are some judgements which say that iffblank cheque given as security is filled by company and bounces. it is not case u/s 138. The account was closed 15 months prior to presentation of cheque. It can be proved that cheque was given at the time of signing loan agreement. Comany is claiming that cheque was given a day before presentation as settlement amount. The name of company is stamped, amount and date filled by company.

what is best defense

Refer to following..

1. Cheque book counter foil ?

2. Bank statement of that period when cheque was issued ?

3. No transaction for many months with the complainant?

These will help you in getting an idea that complainant has made a big mistake in stating that cheque was given just one day before the date of presentation ? Complainant cannot afford to lie about delivery of cheque.

Dear Shri R trivedi

Thanks for advise.

cheque book while closing account was given back to bank at the time of closing account, account statement can prove that cheques nos issued after the cheque no of the bounced cheque were cleared.

Account was closed in august 2008, cheque was presented on 31/05/2010 almost after two years.

There was no transaction with company after july 2008

Company has claimed that in reply to notice (which we never received) borower had come and settled the loan and gave cheque dated 31/05/2010, 2-3 days before 31/05/2010 ( false statement). The cheque was given as security at the time of signing loan agreement ( before loan was given)

From tstatement of he persons who stood surity and other persons who took loan from company, it can be proved that it is practice of compant to take blank unsigned cheque from borower at the time of agreement even before giving cheque of loan

You have a sound defence, what is the present stage of the case. 

Complainant cannot lie about delivery aspect of cheque, he has lied that in pursuance to his notice you issued the cheque, no sane person would issue a dud cheque, also your counterfoil (find out from the Bank, if you can get, remote chances), will show that it was blank cheque, also the cheque could not have been issued after two years of your closing the account and other subsequent cheques passed.

In nutsheel, you look safe, but you have to face the trial if charges are framed.

cheque bounce case is a criminal case so the accused has to demolish the case and not to enter into any defense.

If you try the other side will cross and will get admission. Most of the people loose case becasuse of such mistakes othewise you can win the case.

Take an expert criminal advocate.

Present stage of trial is that boy has received summons to appear on 21/08/2012, we have not given reply as copy of complaint and the notice is not readable, so many words are missing in photocopy, so do not want to take risk of any wrong reply. On 21/08 we only plan to take bail, give application u/s 151 cpc for direction of court to supply readable documents and some other documents like copy of loan agreement, copy of ledger showing installements paid back in cash etc

what if the accused intentionally gave old cheque at the time of settlement.who knows at the time of receiving the cheque whether it will clear or not. dont think that being an old cheque will help anyone in any way.

advice from other experts is welcomed, as I am also facing the same case.but I am from complainant side and  I am new  here.

WHAT THE APEX COURT SAYS IN SUCH MATTERS-

22. The courts below, as noticed hereinbefore, proceeded on the basis that
Section 139 raises a presumption in regard to existence of a debt also. The
courts below, in our opinion, committed a serious error in proceeding on the
basis that for proving the defence the accused is required to step into the
witness box and unless he does so he would not be discharging his burden.
Such an approach on the part of the courts, we feel, is not correct.

23. An accused for discharging the burden of proof placed upon him
under a statute need not examine himself. He may discharge his burden on
the basis of the materials already brought on records. An accused has a
constitutional right to maintain silence. Standard of proof on the part of an
accused and that of the prosecution in a criminal case is different.

The order of honorable Supreme Court does not say that the accused should never give evidence;

1. The material as put on record by complainant can be used, since it is a documentary type of issue, the record brought in by complainant may give ample points for defense.

2. Accused can always come forward and give evidence, that is the fundamental right of accused. In fact many a times in order to contradict the complainant plea, the accused will have to come foward and provide evidence.

Infact the honorable Supreme Court has even stated in one of the orders that the accused should give some defence, atleast some defence, beyond the wordly explanation to come out of this.

Answering other question: If accused intentionally gives a bad cheque then it is S.420 also. But the point is accused will not intentionally give a cheque, unless an until he wants something more. 

At what stage accused gives defense,

should he give written reply to complaint in writting during first appearance.

Should he give preliminary objections on first  appearance?

Should he ask for some documents at first appearance or wait till complainant completes his side?

As regards to one of my learned advocate written that one can intentionally give old cheque. I CAN SAY THAT IN MONEY LENDERS CASES ALMOST 100 IMPOSIBLE THAT SOME BODY WOULD GIVE INTENTIONALLY OLD CHEQUE.

Any sensible man with applying his mind and common sense understand what money lenders are doing. It is standard practice to get blank papers signed from borowers.

In my son's case, their reprsentative was collecting daily installement from shop, he knew due to losses, shop was closed in June/july-2008,  ( he was collecting money from shop in front of my son;s shop for complete 300 days) WHY THEN HE WOKE UP IN 2010?

company has claimed that, he (my son) after getting notice came to their office and gave cheque on 29/05/2010, BUT HAVE NOT ANNEXED COPY OF NOTICE AND OROOF OF RECEIPT OF NOTICE. When he was not living at address on which notice was supposed to be sent, how he received and gave old cheque of account which was closed in july-2008?

In criminal cases in general the defense is not put forward before the prosecution evidence is over.

During cross examination of CWs, to counter any plea taken in affidavit, the specific defense evidence can be put forward. Otherwise all such defence evidence and counter statement based on complainant affidavit and Cross Examination can be submitted in the form of accused statement under S.313.

Accused can give affidavit also, but in one of the High Court orders, this was not accepted. The fact remains that anyone giving evidence in the form of affidavit can be cross examined under S.145(b), also it is the right of accused to remain silent. so ideally. The above order of Apex Court was mainly to clarify that accused need not examine himself under oath.

So defence can be set up as follows:

1. During Cross examination of CW, probablise the case or bring forward the contradiction. Complainant makes lot of mistake even in notice stage, take up all these issues, like

 a. Notice.

b. Cheque delivery

c. Cheque shape.

d. Liability as stated by complainant.

e. About the authority of complainant.

f. Constitution of complainant.

(THESE MUST BE SPECIIFC TO AFFIDAVIT POINTS).

Finally once the prosecution case is over make a statement under S.313 which will highlight the anmolies in affidavit, favourable points out of cross examination and any further evidence. 

Standard of proof on the part of an
accused and that of the prosecution in a criminal case is different. 

  please read and analyse what supreme court has opied.