He has to prove in the court that he had given you one lac rupees as a loan plus on what conditions etc.
You may file complaints against him the cheque book was stolen from your house and he had deposited cheque into bank account etc.
Hi sir am from Hyderabad one of my friend had filed a civil suit under 138 sec for worth rupees 10 lacs, actually when we are close friends he had taken my cheque book from my home without knowing to me and in that one cheque was signed by me but no amount r nothing is written and my friend even he don't have capacity to give 1 lac to others but he wrote in the notice that he had given hand loan of 10 lacs to me will court believe his statement and he had mentioned date that is September 5, 2015 on that day he had given me hand loan but on that date am a minor and just 17 years old how can I proceed this case please suggest me sir.
He has to prove in the court that he had given you one lac rupees as a loan plus on what conditions etc.
You may file complaints against him the cheque book was stolen from your house and he had deposited cheque into bank account etc.
1) deny that Ra 10 lakhs was given as loan
2) take the plea that there is no debt due and payable
3) further claim is barred by limitation as suit filed after 3 years of alleged loan
Well the offence is committed when you become major i.e. cheque bounced. And minor account operates by guardian, so how can you issue cheque.
He will have to prove first his capacity to give 10 lac .
You can contest the same in court while cross examination. You can flasify how claim by making him produce documents, income tax returns etc
See you can contest the case you can file your reply that no such loan was given there is no such legal debt and on mentioned date you were minor and no such loan is valid.
- Firstly, section 138 of N.I.Act is not a civil nature case , it comes under CrPC.
- You are not clear whether your friend has filed Suit for Recovery or Complaint under section 138.
- If, cheques were taken/stolen by your friend , then why you not lodged any complaint for missing of the cheque books and further infom the bank accordingly.
- For filing a complaint/recovery case, signature on the cheque is enough.
- As per the rule of banking system , only major can get cheque book of his account.
- However, if your friend is claiming that the loan was given in 2015 , then Recovery of the amount is not possible as per law of limitation ,which is three years period only.Even the cheque bounce today.
- Better, send a reply of the said notice after deny the said loan ,after narrating that how a minor age/tender age required so much huge amount of Rs.10 lakh.
- Further, also mention in that reply , that the cheques were missed from your custody.
- Dont worry, for the recovery of said amount , your friend will have to prove the liability as well.
Good luck and dont forget to rating Positively.
Hi
Basic ingredients to attract provisions of Sec.138 of NI Act are:
# Legally enforceable debt.
# issuance of Cheque to clear such debt.
# Other procedural part needs to be followed by him.
Case on hand, they are missing.
- Best option is, deny all his allegations.
- Going by contents of your post, it appears the case is barred by Limitation (since it is civil suit).
Further, you have option to question the source of raising such money by him
We advise that you must contest the case by bringing all the facts you narrated above. Once the above said facts will be brought on record, the burden to prove your liability against the complainant shifts to the complainant and he would fail to prove cogently how he came into possession of that particular cheque and in lieu of what service he provided to you he obtained the cheque.
Dear
First of all Section 138 NI act is not civil suit it is criminal case.
And court doesn't believe the complaint just by filing the burden of proof is on your friend to prove his capacity to lend 10 lac rs.
And last is the date of lending money is beyond 3 years which is limitation to file suit for filing recovery suit of any kind.
Dear Sir,
Now the tendency is that 90% of cheque bounce cases being ended in conviction inspite of number of defenses the accused may take.
The court may raise presumption and convict the accused.
The plus point in your case is that you were a minor on that date. You may approach High Court seeking quashing of entire proceedings on that ground .
The signature of minor in the cheque is not valid.
You can prove that before court that you were minor at that time.
But how come you were signing the cheques during your minority ?
You have not given the correct particulars while seeking opinion.
Anyway you can fight it out on merits and documentary evidences in your support