A. Reply to Notice
B. Post Summon & Pre-Charge Stage
C. Quashing the proceeding under S.482 by High Court.
D. Complainant Evidence & Witness
E. Complainant Cross Examination under S.143/145
F. Statement of Accused
G. Judgement
A. Reply to Notice
1. You must carefully read the notice and must reply, take legal help if required.
2. Do not get carried away by honesty aspect too much.
3. Understand the implication of each and every line.
4. Find out the factual error or falsehood in the notice.
5. Clearly mention if the cheque issued was Blank or security cheque.
6. Clearly mention if any bonafide stand taken by you earlier, like reconciliation, defect in goods.
7. Clearly state the circumstances under which the cheque was issued.
B. Post Summon & Pre-Charge Stage
1. In most of the cases, accused generally pleads not guilty and signs the charge sheet in court.
2. In cheque bounce cases accused can argue on defense grounds even by submitting a written memo.
3. Argue cogently with the help of advocate and if you have solid grounds even technical, then pursue it.
4. Present if you have any incontrovertible evidence, which has value to quash the proceedings.
5. If handled properly in many instances, it is possible to get the complaint quashed at this stage.
6. The honorable trial court by law listens to accused before framing the charges.
6. The honorable trial court by law listens to accused before framing the charges.
C. Quashing the proceeding under S.482 by High Court
1. This is tricky, use it only when charges are framed and by taking legal help.
2. High Court in general will not consider any subjective defense however solid it may be.
3. High Court may take congnizance of any evidence which is incontrovertible.
4. The general rule is that if any incontrovertible evidence is presented to High Court and High Court
concludes that if this evidence is taken on record then accused will not be convicted, then High Court may
quash the proceedings.
D. Complainant Evidence & Witness
1. Not all the complaint are dishonest or baseless.
2. General tendency of the complainant is to use the blank cheque without due diligence.
3. General tendency of the complainant it to use the full amount cheque and demand the full amount
even if debt or liability is less.
4. Read all the points of plaint and affidavit of complainant carefully, find out the falsehood.
5. Apart from the merit of the case, find out the technical lacuna in the complaint.
6. Avoid summoning any witness for cross examination till prosecution has closed its case.
E. Complainant Cross Examination under S.143/145
1. It should be extensive and need to be handled by proper legal person.
2. Insist that your counsel understand the case fully.
3. Personally supervise the list of questions to be asked.
4. Understand the implication of Q&A during cross examination.
5. Accused should not be complacent or rely too heavily on his counsel, simply because
accused has full information, and unless and until it is exchanged, counsel cannot be of much help.
F. Statement of Accused
1. Make a detailed cogent point wise statement of defense.
2. If you have witness, include them also.
3. Accused can be a witness himself, ask your counsel for this.
4. In your reply include the contradiction in the plaint, affidavit and Cross Examination.
5. In your reply include technical points which have the potential to damage the prosecution case.
G. Judgement
My Comments:
The reverse presumption under S.139 has passed the legal scrutiny, but it is against the natural justice of innocent till proven guilty. All the honorable courts are aware of this aspect, to balance it the Supreme Court has ruled that the onus on the accused to prove his innocence is not so heavy, a probable defense will also go in favor of the accused. The point is so much and so many cases have been decided and are pending, that many of the pending cases can be decided very fast, if honorable the Supreme Court issues certain guidelines to all the trial courts. The knowledge bank is so vast even on technical aspect that majority of the cases it can be Black and white decision.
D. Complainant Evidence & Witness
1. Not all the complaint are dishonest or baseless.
2. General tendency of the complainant is to use the blank cheque without due diligence.
3. General tendency of the complainant it to use the full amount cheque and demand the full amount
even if debt or liability is less.
4. Read all the points of plaint and affidavit of complainant carefully, find out the falsehood.
5. Apart from the merit of the case, find out the technical lacuna in the complaint.
6. Avoid summoning any witness for cross examination till prosecution has closed its case.
E. Complainant Cross Examination under S.143/145
1. It should be extensive and need to be handled by proper legal person.
2. Insist that your counsel understand the case fully.
3. Personally supervise the list of questions to be asked.
4. Understand the implication of Q&A during cross examination.
5. Accused should not be complacent or rely too heavily on his counsel, simply because
accused has full information, and unless and until it is exchanged, counsel cannot be of much help.
F. Statement of Accused
1. Make a detailed cogent point wise statement of defense.
2. If you have witness, include them also.
3. Accused can be a witness himself, ask your counsel for this.
4. In your reply include the contradiction in the plaint, affidavit and Cross Examination.
5. In your reply include technical points which have the potential to damage the prosecution case.
G. Judgement
Our Courts like GOD are always with the Truth, despite S.139.
An innocent person very rarely gets convicted, only thing is he may fail to defend himself properly.
Then there is always appeal to higher courts.
My Comments:
The reverse presumption under S.139 has passed the legal scrutiny, but it is against the natural justice of innocent till proven guilty. All the honorable courts are aware of this aspect, to balance it the Supreme Court has ruled that the onus on the accused to prove his innocence is not so heavy, a probable defense will also go in favor of the accused. The point is so much and so many cases have been decided and are pending, that many of the pending cases can be decided very fast, if honorable the Supreme Court issues certain guidelines to all the trial courts. The knowledge bank is so vast even on technical aspect that majority of the cases it can be Black and white decision.
