IN FACT IT IS MOST EASY TO WIN ANY CHEQUE SINCE COMPLAINANTS IN OVER CONFIDENCE MAKE MANY MISTAKES IN FRAMING THE PLEADINGS IN THE COMPLAINT. In this back ground every accused must understand that when it is easy to solve the problems your remain LAZY, CARELESS. Problems pile up and existing ones become more serious.
When nothing can be done than you wake up and try to make fast erratic efforts. When a cotton thread bundle gets entangled great peace of mind is essential. You have to calmly untangle the threads. YOU DO JUST REVERSE and in the process complicate the problems more.
One problem brings another problems with it. Just like a seed gone in the soil it is sprouted and more and more branches are added to it and the root goes more and mere deep.
With burden and complications of these problems you loose confidence. In such situation you fail to solve even a minor problem which even a child can do.
When fire is small a small breeze can put is down and finish it. But when fire becomes big even blow of air makes it still even bigger.
Though the cheque law is stringent and the procedure is short still there are many many simple sure methods to win any cheque bounce case.
1) Cheque law has been made more stringent and further higher court Judgments has made it more lethal. Many cheque bounce victims do not understand the seriousness of cheque bounce and go with the opinions of lawyers, advocates who had never won or even handled any cheque case.
SUPREME COURT HAS SAID IN MANY MANY CASES THAT :=
A) The presumption under Section 139 of the Negotiable Instruments Act, 1881, includes the presumption of the existence at a legally enforceable debt or liability. That presumption is required to be honoured, and if it is not so done, the entire basis of making these provisions will be lost.
. on- 23rd JULY 2013.
B) Supreme court has also held in many recent cases that cheque bounce due to any reason such sign mismatch, ac closed , refer to drawer etc can not be accepted as defense and conviction has to follow as below.
expression “amount of money …………. is insufficient” appearing in Section 138 of the Act is a genus and dishonour for reasons such “as account closed”, “payment stopped”, “referred to the drawer” areonly species of that genus. 2) Another most important mistake the accused do on first date itself. The cheque case is a summons case based on documents. So complaint has to be filed with original documents and affidavit. It is sufficient evidence of the complainant. And accused can not even be allowed to cross examine the complainant unless solid reasons are given. See what Delhi High court has said in such matters.=
I, therefore, consider that the proper procedure to be followed by MM is that soon after summoning, the accused must be asked to disclose his defence & his plea should be recorded. Where an accused takes no defence and simply says “I am innocent”, there is no reason for the MM to recall the complainant or witnesses during summary trial and the evidence already given by the complainant has to be considered sufficient and the trial court can ask the accused to lead his evidence in defence on the plea of innocence as the evidence of the complainant is already there. sure. In a summary trial, a complainant or his witness cannot be recalled in the court for cross examination only for the sake of plea
Once the complainant has brought forward his case by giving his affidavit about the issuance of cheque, dishonour of cheque, issuance of demand notice etc., he can be cross examined only if the accused makes an application to the court as to on what point he wants to cross examine the witness (es) and then only the court shall recall the witness by recording reasons thereto.
SO THE PLEA OF THE ACCUSED ON THE FIRST DATE IS MOST IMPORTANT AND IT MUST BE GIVEN AFTER PROPER PLANNING OF DEFENSE.
Even in such situations there are opportunities to defend the case.
1) IT CAN BE PROVED THAT THE ALLEGED CHEQUE WAS NOT YOURS
In most of the cases just opposite is done from day one. You claim that it was blank cheque or stolen cheque or security cheque. Once you admit the cheque was yours the basic presumption goes against you.
2) It can be claimed that the cheque was not presented for collection and it never came to drawee bank and hence it was not bounced.
There are many technical mistakes in bank slips which can be easily used for defense of accused. But most of the accused either in reply notice or on the first day in plead admit the bouncing of cheque and hence this most important defense is lost.
3) It can be claimed that you did not receive any notice for cheque bounce from compaint.
Here again either in reply notice or in plea or in 313 statement this fact is admitted by the accused. If not there are many technical and legal issues due to which it is very difficult to prove issue of or its receipt by the accused. Such pleas are taken in appeal or revision but due to admission in lower court it is not accepted by higher courts.
MORE OVER THERE ARE MANY LEGAL AND PROCEDURAL MISTAKES IN FRAMING THE PLEADINGS IN THE COMPLAINT WHICH GOES IN FAVOR OF ACCUSED AND IT IS EASY TO GET THE CASE DISMISSED AT LOWER COURT LEVEL ONLY.