In India, the biggest problem with Laws is that anyone can file the case against anyone even with a small iota of evidence as procedure are not taken seriously in trial and lower courts. For ex., it is the onus on the Court to ensure all the facts of the case at the time of verification before issuance of any Summons under Section 138 criminal complaint but it just does not happens and summons are issued due to local bar lawyers appearance or for any reasons and hence there are many cases where the appeal is filed for quashing of summons and case and expenses are made even if you are falsely accused in the case. Section 138 is a very popular section amongst commercial traders and market and in law and in simple terms it deals with Cheque Dishonoured cases / Cheque Bounce case. This particular article only deals with the scenario where you are falsely accused in Section 138 proceedings either you are not at all relevant to the case or you are relevant but the cheque was not for the transactions for which the case is filed. In regard to former act, you can approach High Court for quashing and if you are able to show you non-relevance in the case, the mostly the case will be quashed against you. However, in later case, the chances of quashing is less as you have to face the trial and this is where you feel a burden and most of them comes under pressure. Well, it is always advisable to always have your Lawyer in your contact list and be ready to take their advice and don’t ignore this aspect to avoid any legal costs.
Under Section 138 the best part is that before any Court case is filed, it is mandatory that Notice is issued and assuming it is issued to you and you believe that this is false case, then it is always better to reply their legal notice with full facts and defence. Please note that replying notice is not a simple work but it requires the full length strategy against the case and hence do take the assistance of legal attorney.
You being in business or else, it is always necessary that you give good costs and budget in making the legal system complying with “Pre-Litigation measures Compliance” and if you are able to complete and maintain the “Pre-Litigation measures Compliance”, there is no doubt that you will be saved for surely in such false case being filed. If you want to know in details the “Pre-Litigation measures Compliance”, You can refer to our Book named “Methods, Strategy, Solutions, Savings on Recovery of Dues” which is available at this link https://www.amazon.in/Methods-Strategy-Solutions-Savings-Recovery/dp/9387457451 to know more about the Book and its Author credentials you can read this link https://www.bloomsbury.com/in/methods-strategy-solutions-savings-on-recovery-of-dues-9789387457454/ and https://www.bloomsbury.com/author/lalit-jain/
Tips you can do in false cases against you under Section 138:
• You shall always avoid giving extra security cheques or payment cheques and shall always keep the records of cheques being given. Assuming the cheques are being replaced by you, then ensure you collecting the earlier cheque and possible put everything in writing
• It is almost mandatory that you must instruct your account department or relevant departments or all office personnels not to issue any email in regard to any acknowledgement of debt as this will then lead to weakening your case
• Please comply with all the “Pre-Litigation measures Compliance”
• Be ready with all the documents, agreements, correspondences, etc with you related to the transaction you had with the person issuing the notice
•In the case of you in receipt of any Demand notice under Section 138 or else, here assuming Section 138, then please take the opinion of Lawyer and ensure drafting of reply. I have in my article named “Received LEGAL NOTICE= Don’t Panic = Certain Tips to REPLY” have given the tips to reply to the legal notice. Ensure replying in very tactfully and carefully
• You shall be ready that if such person issue notice will or possibly chances are there of him filing the case and hence in this scenario, speak to your Lawyer and try possibly filing counter claim, if there is a claim or issue the Legal notice from your end warning him to not take such action else damages suit will be filed by you and also it is preferably good to inform your association if both are from same market or else.
• Assuming the case is filed, then you can try your hand at filing the quashing of summons and case and try informing the Court as to why this case shall be dismissed.
• Assuming the case is not dismissed but is ordered for trial, then nothing else choose a lawyer to defend the case and go for the fight in your favour and you can file the damage suit if you think so or other steps as that particular case calls for. In all aspects take the assistance of Lawyer who intends to avoid courts and use Courts as last resort
• Try talking to common friend and close the matter in amicable manner but not at the costs of you ending up paying or settling against you or else but in order to avoid any litigation. Please note that most of the time taking this route calls for EGO and is also termed as lowering your head and hence most of the Lawyers avoid this statement as then you may leave such lawyer and look for else which is not a good option. Lawyers with ethics and experience will always take care of yours and hence be ready for his opinion and if want you can take second opinion and then take a call.