S.138 of ni act

Once the process is issued you have to contest the case. It is easy to win on technical points only. Otherwise once the cheque is proved to be yours and from your account the guilt is accepted and conviction follows.

Once the summons have been issued, you can take this objections. The trial court is empowered to diswcharge the accused on these grounds.

Regards,

Shonee Kapoor

harassed.by.498a@gmail.com

For what you gave the cheque to him, means how did he get your cheque ?

It is not material that complainant has not spoken that when .where and on what date the jwels were given., material thing is that why  did you isse the cheque? you  have to rebut the presumption by cogent  and material evidence else it will  be presume that cheque has been issued against the debt or discharge the liability.

It is very much material as to how the cheque was issued and for what purpose, unless there is a legal liability no case is made out.

It is true that initial burden to prove the allegations lies on complainant but if once accused admit the issuance of cheque burden shifts to accused and untill and unless he does not rebut the presumption of issuing cheque towards debt and liability it will be presumed that complainant has issued thecheque against debt or liability.

Any case of cheque bounce  (NI 138)  can be won by the accused if diligently perused from initial stage. It is  a myth that once a cheque is bounced conviction is imminent .

 The complainant has to pass many many and many legal hurdles to achieve this.

 1) Prove EXACT  legal liability equivalent or less than value of cheque that too on the day when the cheque was given .2) Prove notice and all its contents .3) frame proper pleadings in the complaint 4) produce all the evidence with the complaint 5) Prove cheque was actually given to the complainant BY THE ACCUSED .6) It may have been given post dated but not blank dated.

6) Prove its bounce against the complainant not against any body else. This is a big catch and ignored by many most of the time.

Accused  suffer only due to guilt complex and initial lethargy .Power of defense is power of negative which is  perpetual and immense.

It is true that initial burden to prove the allegations lies on complainant.... by Advocate Goyal

I would differ with this. There is no initial burden on complainant. S.139 gives presumption in favor of complainant from day one. Bounced cheque, bank slip and proper notice and case file during the limitation is sufficient to proceed. Accused has to rebut the presumption. Yes if accused successfully rebuts the same then the onus shifts to complainant.

I differ with Mr. Trivedi,

The initial onus that there was a legal debt has to be on the complainant and mentioned in the complaint itself.

Merely cheque and slips are no presumption . To meet the provisions of law there has to be proper pleadings and there where complaint bumps.

The honorable supreme court (double bench of K G Balkrishnan+) has interpreted that the presumption under S.139 is with respect to the Legally Enforceable Debt. That means once the cognizance is taken based on the cheque, slip, notice etc, and the execution of cheque by accused is established the presumption is available with the complainant. The accused can create the probable defense even from the matter produced by complainant, but certainly the onus is on the accused to probablise the case, there is absolutely no first onus on the complainant to prove the case. Any loose or false information in the plaint goes in favor of accused.

You are right Mr. Trivedi,

However, the debt has to be shown in the pleadings.

Regards,

Shonee Kapoor

harassed.by.498a@gmail.com