PART -2 | NEGOTIABLE INSTRUMENT ACT : PRECAUTUIONS TO BE TAKEN WHILE FILING CHEQUE BOUNCE CASE
PART -2 | NEGOTIABLE INSTRUMENT ACT : PRECAUTUIONS TO BE TAKEN WHILE FILING CHEQUE BOUNCE CASE
✒ ARTICLE BY - JAGADEESHA A , ADVOCATE
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3.Relationship between the Parties
While granting the loan or advance relationship between the parties are utmost important. The complainant will not give any loan to the unknown person. In most of the cases the relationship is very thin for ex: accused is friend’s friend, he is neiborour, he is my relative friend, he is known through wife’s family, he is colleague friend, and so on.
Realistically he does not have any contact with the complainant, known from common friend etc . The relationship is not established properly during the cross examination it is very difficult to prove the case. The Age of the accused, his financial strength to repay , his residential address , his work place to be known at the time of advancing loan.
It is always better at the time of advancing loan he should be always to be known person and well acquainted with the other party. It is always better to collect the adhar card, father name, age ,proper residential address, request letter for taking loan, Mobile /Telephone Number, Office Address etc to be taken at the beginning . the complainant has the solid proof of relationship and based on the good intention he has advanced money to the accused.
4.Purpose for taking Loan
This is also important point to be taken into consideration at the time of filing cheque bounce case . An individual is taking the loan for the purpose of house hold expenses, for marriage or construction of house or to purchase fixed and current assets. Usually an individual not suppose to lend any money since he does not possess Money lender license. If the purpose of loan is not proper at the time of cross examination it is very difficult to prove your case.
5.Mode of advancing loan
This is also very important point to be considered and thought through before filing any cheque bounce case. money can be paid either by cash or bank transfer. If the money is transferred via bank transfer proving case will not be so difficult. Since all the transactions done through cheque/or bank transfer/electronic transfer. All will be recorded in bank statement.
At the time of Issuing cheques towards loan always to issue crossed cheque where in banker will credit the amount to the party account. Always to avoid to issue self cheque and bearer cheque.
If the cheque is payable 5 lacs and above it is advise to go through the positive pay system where in customer is giving information to the banker well in advance that he has issued cheque to so and so for Rs . so and so and if the cheque is presented for payment to make the payment to his account.
If the money is paid through cash it is difficult to prove in the court . usually cash is giving in bit by bit or some duration or some period. It is always to avoid paying by cash it is difficult to prove in court. During the cross examination time you will find it difficult to answer the question.
If the cash is withdrawn from the bank other than normal transaction before withdrawing money you have to intimate the banker that you require so much money on so and so date and keep the funds ready.
6.Witness to the loan Transaction :
It is always to that some witness to be present at the time of advancing loan. This will be good piece of evidence and you can summon the witness and lead the evidence in court. If there is no witness in the monetary transaction people will find it difficult to prove the case
7.Time Limit for filing case
Cheque to be presented to bank for encashment within the validity period which is prescribed under law which already discussed elaborately in the previous article. Once the complainant has received notice of dishonor from the bank legal notice to be issued to the drawer with in 30 days from the date of receipt of dishonored slip from the bank. A legal notice well drafted from good lawyer to be sent to the drawer of cheques intimating him the cheque issued by him is got bounced due to insufficiency of funds or exceeds arrangement.
After issuing legal notice the complainant has to give 15 days time to the other party to make the payment of the bounced cheque. if the other party has not paid the bounced cheque money he has to take further steps to file case in appropriate court.
The Time limit prescribed under law is after the grace period of 15 days within a period of 30 days the complainant has to file private compliant under section 200 with the jurisdictional Magistrate who is competent to try the case.
8. Source of Income
In most of the cheque bounce cases major problem is showing the source of income at the time of advancing loan. Lending abnormal amount without having sufficient income proof lead lot of problem in evidence. If it is proved that the complainant does not have sufficient income and advancing high amount of loan and these loans are giving by cash he may loose the case. The complainant has to prove that he is having sufficient income and capable of lending money and shown in the income tax returns. If he is has given loan out of agriculture he should have sufficient of land in his name and he should have proof of the same.
In case of Business the amount lent should be shown in balance sheet under debtors heading and he has file the income tax return. In case of company a board resolution will be an added advantage.
Most of the people will give the reasons he has lend the money out of his savings, got it from his wife account, received from friends unless the reason is not proper finding it difficult In leading case.
✒ ARTICLE BY - JAGADEESHA A , ADVOCATE
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https://www.courtbeatnews.com/2022/01/precaution-ni-act.html