1. This message is only for honest drawers got stuck into S.138 (like innocent Husbands got stuck into DV Act or male live in partners of years got stuck under IPC 376).
2. Incidentally S.138 and DV Act have the highest number of pending cases clogging the lower courts.
1. Do not take the case lightly from day one, do not fully rely on your counsel, he is a busy man, shuttling between courts to court, so assist him with your home work.
On receipt of Notice:
1. If you are honest and you feel there is no liability, mention that, or the best part is just reply that you have received the notice and it is against the law and shall be answered by your counsel at the appropriate time. You can discuss with your counsel before answering. Pay if you feel that dues are justified.
On receipt of summon:
1. Although courts do not give much opportunity to accused beyond bail papers and asking guilty / non guilty, but still before charges are framed (and if the court is not conducting the same as summary trial), file an application that you would need all the papers (including evidence) of complainant and shall reply on maintainability of complaint as per law, till then request the court not to frame the charges. If you do not do this you are straightaway stuck as accused for years. Plead to the court that you have many points which need to be looked into before forcing you to go through criminal proceeding. if court refuses, fine at least attempt it.
2. if court grants you this opportunity, you must restrict yourself to the technical evidence only, this is not the stage where merit evidence like no liability shall be proposed, mention this aspect clearly in your application.
A. Raise the issue regarding complainant competence.
B. Raise the issue regarding notice and time frame.
C. Raise the issue regarding applicability of S.138 on account of cheque being more than 6 months old.
D. Any other incontrovertible evidence supporting you technically.
E. raise the issue of jurisdiction
3. before proceeding further you have an option to approach High Court Under S.482, but only if you feel that your case is based on incontrovertible technical evidence.
4. if you fail in Step 2 or do not take up the step 2, then do not miss anything on cross examination:
1. You can give evidence with respect to constitution of complainant firm or company if claimed differently by complainant.
2. You can argue that a prop firm cannot initiate the case by some authority letter holder.
3. You can question the validity of Any GPA given, if not properly authenticated, GPA must be of a date during which transaction took place, subsequent GPA holder can act as complainant but cannot give evidence on behalf of someone.
4. You can give evidence about cheque delivery date.
5. You can give evidence about partial failure of liability.
6. You can give evidence of your cheque book, the other series cheques issued.
7. You can give evidence about any communication supporting your case.
8. You can raise doubts or legality of liability.
9. You can force all the people of complainant who has given evidence on affidavit for cross examination.
10. You can prove that handwriting on the cheque is from complainant side: Go to his Bank or through court and take the deposit slip, in all likelyhood the deposit slip will be filled up by the person who deposited the cheque. This is the good enough proof of cheque being blank.
11. You can produce your bank statement showing that other cheques of the cheque book got cleared much before this cheque, suggesting that the cheque was issued in the past as blank.
12. You can produce any cash receipt.
13. You can give evidence that there was no transaction for substantial time before the date of dishonor.
14. You can prove that the cheque issued was as secuirty, not for discharge of any liability.
15. You can prove that the cheque was issued for some other liability not for what is stated in the complaint.
(All these and many more points are to be raised at the time of cross examination of complainant, you cannot file an affidavit, so almost all your evidence must come forward during cross examination of complainant.). You have only limited opportunity under S.313.
Remember:
You have good chance, because complainant feels that only bounced cheque is sufficient for conviction, which is not true.
And also do not forget to resolve amicably if you feel that may not be legally but otherwise complainant is justified in asking you for the payment. Dues must be settled honorably, not when forced by law.
If this write up helps someone please let me know !!
