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Misuse and Violation of Section 138 Negotiable Instrument Act 1881

Dishonour of Cheque Given As Security Not For Insecurity

The Dishonour of Cheque, envisaged under Section 138 Negotiable Instrument Act, 1881 is the worst misuse in the present era. This channel used as a source of illegal recovery of money. The money-lender hold the cheque of borrower while lending money.

The money-lender does not return the cheque even the amount gets recovered from the borrower. Despite receiving amount, money-lender with the dishonest intention makes an attempt in fabricating the details in filling lakh of rupees on the holding cheque to get it dishonoured so that he can recover more money by filing case before the court. Only those persons who have knowledge of the law can secure themselves from frivolous and erroneous litigation, which means preparing the necessary relevant documents in their favour and for the purpose of defence in court proceedings. The Central Government with the interval of time amend the laws for the protection of borrowers in every State of India and to control the act of moneylenders.

In the Cheque Bounce cases, the complainant's position is strong as he has a cheque. The complainant has to issue a demand notice letter keeping in view the provisions of Section 138, the complaint application should contain the provisions of Section 138 only then the complainant is entitled to the benefit of Sections 139 and 118 otherwise. The defendants can avail the benefit of lack of pleading. If the provisions of Section 138 (a)(b)(c) are not present in the complaint application, the indent is not valid and can be dismiss.

Then the benefit of Section 263(G) Criminal Procedure Code goes to the accused. For the benefit, initial written objection raised before the trial court must be raised before the Sessions Court or the High Court also. Now the advocate who is defending the accused in the cheque bounce case will tell what are the objections related to the case.

In the matter of MJ Joseph versus Gladis Sasi on July 2010 of Kerala High Court, it was held that the presumption under Section 118 and Section 139 of the Negotiable Instruments Act can be drawn only when the execution of the cheque is admitted or proved. The admission of signature in a blank cheque is not admission of execution of the cheque. The performance of the channel was not established in compliance with Section 67 of the Indian Evidence Act. The accused has been acquitted by the court.

Under Section 313 of the Code of Criminal Procedure, 1973 (hereinafter referred as Crpc) attention of the complainant and accused advocate is required in the court asks for an explanation of the circumstances against the accused with great finesse. In most of the cases, the facts which the complainant is unable to authenticate with documentary evidence are accepted under Section 313. Under Section 313, questions are asked to implicate the accused, and the reply made by the accused be taken on record and used by the advocate of complainant and would lead to conviction.

The provisions of Section 138 is accepted from the accused through the questions asked under Section 313 Crpc. In reply to the questions, the accused's assertion that he does not know, does not know, does not know, I am innocent, I am being falsely prosecuted, it is not an answer or clarification. This is also one of the reasons for the conviction of the accused.

A hand book on the cheque bounce cases needs to be written so that the junior advocates who defend the case of accused can get a better guidance. Defending in cheque bounce cases, like other criminal and civil cases, would result into fatal. I keep sharing the personal experience, I believe that the sharing of knowledge and experiences among the citizens, families, friends is essential part of our life which constitutes a valuable intangible asset for creating and sustaining competitive advantages and work with the spirit of learning hardworking and implementing.

Written by: Sahil Chaudhary Advocate

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