Cheque has been dishonoured and amount remains due. But what if you have lost the cheque. Maybe when your office was shifted the memo from bank was lost. Or maybe the legal notice is only available with you on mail. You would start panicking what will happen if you file a complaint under section 138. Will it go through. When you lose documents related to cheque bounce it is not the end of it. However there is a process to retrieve those documents and prove that it was in your possession. Court will want to know how the document got lost and if it can be substituted with something else that can be authenticated. Just like the cheque you need to make sure you have the dates when the cheque was dishonoured and the legal notice was sent. Take for example you are a vendor in Ghaziabad and someone gave you a cheque for amount which you had billed them for. Once you receive the cheque and find out it was dishonoured you may come to know that you lost some documents. Maybe your courier copies were with that cheque. Well there are entries made by bank and if the person who paid you has messaged you about paying you via cheque then there are ways to collect those documents as well. If you have lost any documents contact Advocate BK Singh. He will help you figure out if it can affect your filing or during the court proceedings. In case you have a hearing coming up it would be best to talk to a lawyer before making a duplicate of any documents. You want to maintain authenticity of the documents you have in hand. Most cases of Section 138 come from trade of goods, payment to professionals, taking loan and so on. Just because you have lost your documents doesn't mean that your case will be decided based on it alone. Court has to consider if cheque was issued, cheque got bounced, notice served, liability exists and proof of the same. Advocate BK Singh would always recommend to differentiate between each aspect before investing in filing a complaint or defense. If you have a good track record from banks it will help but not always. Sometimes you can use secondary evidence which may be admissible to prove a lost original cheque. It can include finding the original copy of document. Business records made independently, emails, written confirmation etc. If any of the documents is not available you have to establish it. Not everything will be established just because you have produced one document. You must find out what is missing. Cheque, Return memo, Notice of demand, Acknowledgement of receipt, Agreement or Statement of Account. Advocate BK Singh will guide you as to what can be proved by primary evidence and what other mode can be used to prove it. Further witnesses might be called upon to provide relevant evidence. Under section 138 of the Negotiable Instruments Act 1881 it deals with dishonour of a cheque when it is drawn towards payment of any legally enforceable debt or liability provided certain conditions are fulfilled. Once these are satisfied a presumption will be raised under section 139 that the cheque was issued towards such debt or liability. Section 146 provides for return memo of bank being considered as presumptive proof of dishonor of a cheque. When dealing with the Bharatiya Sakshya Adhiniyam 2023 Section 58 explains about secondary evidence and Section 60 explains when secondary evidence can be used. Some instances would be where original has been genuinely lost or destroyed. Section 63 states about how electronic records will be taken into consideration and what certificate is needed for it. Since the case may have started prior to the implementation of this law on 1st July 2024 it may still fall under the previous Indian Evidence Act due to the saving clause. So we need to check with our advocate BK Singh as to what law applies in our case. Go through all locations where the cheque was present. This would include your bank, accounts office, advocates file or court file if ever filed. Enquire from your bank if they keep images or details of cheques that were cleared. If there is any picture/scan made prior to it going missing then retain them. If there are circumstances of theft you may want to enquire about lodging a complaint or writing down what happened at that time. Advocate BK Singh may be able to assist with an application for leave to lead secondary evidence if this is permissible. There will most likely be some questions asked about how the original was lost and if the copy provided is reliable. An image of the cheque may be helpful to show its details but you will still need to prove the cheque was issued, signed (if called into question) and other requirements as per law. Bank return memo states the reason for which the cheque has been dishonoured. Section 146 talks about a Bank slip/memo having official mark will make it presumptive. In case you don't have one ask your bank for the same or any other document which they can authenticate. You can also ask them to provide you with the account statement/deposit slip etc. Your advocate Mr. BK Singh can guide you on this whether you need documents from the bank or can take help of Bank witness. If there is a dispute on why and when the cheque was dishonoured. One important point to note is that losing the cheque once its returned due to dishonoured is another scenario than Bank returning cheque as it is declared lost by the Drawer. Reason stated by the bank needs to be looked into. They could prove that the item was supplied or a loan was made or even the drawer mentioning paying for it. There could be many instances that will help you such as an email stating what the cheque no. was and when they would pay for it. Save all conversation and not just snippets. Have original copies, date, from whom it was received from what device etc. Depending on the rules of evidence a certified true copy may be required. BK Singh can help with this process to ensure your message is admissible. See more about this digital evidence and electronic records in cheque bounce matters. Compile one index file with remaining copy of cheque, bank information / reply from bank, cheque deposited copy, invoices, order, loan documents, books of accounts, receipts paid, notice, proof of dispatch and all the court records available if any. Have another chronology regarding the cheque issued, presented, details of dishonour, sending of notice and received of notice and if any amount was paid. So that advocate BK Singh can identify if anything is missing and not mistake for the dispute of fact and limitation issue. Some case laws which will be helpful are Section 138 complaint filing may help readers understand why each stage needs its own evidence. Usually No. Demand has to be sent by payee or holder in due course by writing to drawer within 30 days from the date on which he receives information of dishonour by bank. Drawer will have 15 days time from the day he receives demand to pay. So complaint should be filed within 1 month from the date cause of action arises. Sometimes the court can condone the delay if there is a good cause mentioned u/s 142 but one has to know the time line. BK Singh Advocate can look into the time line and see when demand was sent and if proper proof of sending the demand exists. Refer to the cheque bounce legal notice guide. If you have lost your original cheque, bank will not give you copy or drawer will deny his sign and if any court raises doubt then immediately take help. BK Singh will check trail of cheques with the notice given by you and your account statement and file in the court. Then we can see what is the right thing to do. If you have any doubts regarding cheque bounce section 138 notice, complaint, proof, compromise and defense you can contact us at Cheque Bounce Lawyer. By visiting our website of Cheque Bounce Lawyer you can know what we offer and can ask for appointment. BK Singh advocate will be able to tell you if the documents from bank or any witnesses are required or secondary evidence with proper support can be asked for. Yes you can lodge complaint under section 138 Negotiable Instruments Act 1881 in case of losing original cheque. The Complainant will have to satisfy the court about the losing of the cheque and prove all the ingredients of the offence. Section 60 Bharatiya Sakshya Adhiniyam 2023 deals with the situations where secondary evidence can be admitted. Scanned copy of Cheque will not be treated as a conclusive proof under section 138 of Negotiable Instruments Act. Scanned copy may help in identifying the Cheque no, Amount, Date of cheque, name of Payee etc but the Court will have to consider whether it is a genuine copy or not. In certain scenarios bank can issue you another Cheque Return Memo or any authenticated record that would state that your cheque was returned due to dishonor. You or any relevant party who hold account with the bank can write to them stating the Cheque No, Amount and date of Presentation of the Cheque. This may help you in proving that your cheque was presented and returned. If you lost your Postal receipt then it doesn't mean you cannot file a cheque bounce case. All you need is to prove that you complied with all the conditions of sending a Legal Notice. You can also use any other material which may prove that you sent out the notice. Such as Post office information, Delivery report, Booking of notice, Post office letter, Copy of Notice with you. WhatsApp chat can be considered as evidence in Cheque bounce case. Any electronic mail, Money Transfer or any other digital communication can also be considered. For Instance if you have a whatsapp chat with the accused that states they received money from you and agreed to pay you back or stated anything regarding the cheque that was dishonored can be used as proof. All electronic evidence should comply with Bharatiya Sakshya Adhiniyam 2023 and Section 63 if applicable. Not having an Invoice doesn't automatically mean that your Cheque Bounce case is invalid. The Question is whether you have a legal claim or debt against the Drawer and you have fulfilled all the requirements of section 138. There could be many documents that can prove your debt. Loan Agreement, Account Statement, Payment made etc. Yes, The accused can object if you produce a Photocopy of your cheque in Court. They can object that there was no original Cheque or the signature on the Cheque might not be genuine. Or that the condition to allow Secondary Evidence is not met. If the court feels that it can it can call upon the bank to provide any records or ask an Officer from the Bank to come and testify. This could include the presentation of your Cheque, Reason for dishonor etc. Which will help you in proving that your Cheque was presented in time and dishonored by the Bank. No if you lose your Original Cheque, Bank Return Memo or Post Office receipt your limitation period will not be extended. You have to send a Written Notice to the Drawer within 30 Days from when you came to know about the dishonor of your Cheque from the Bank. Then the Drawer is given 15 Days to Pay you from the day he receives your Notice. Yes you can still settle your case even if you don't have your original Cheque. As Section 147 states that offences under this Act are Compoundable. So you can settle and pay each other accordingly. You may have other backup records which you can rely on if your cheque case documents are lost. Contact your bank, keep your source digital copies intact and truthfully report about your documents loss. Keep a note of all the timelines prescribed under the act. Speak to advocate BK Singh who can look into what's missing and suggest if we should try to rebuild evidence or approach court or any other legal remedy.Cheque Bounce Case Documents Lost How to Rebuild Evidence?
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Frequently Asked Questions
1. Is it possible to lodge complaint under section 138 without having original Cheque?
2. Will a court consider scanned copy of Cheque as a proof?
3. Can I ask Bank to issue me Cheque return Memo again?
4. If I lost my Post Receipt of Section 138 Notice. What do I do?
5. Can WhatsApp Chat be used as evidence in Cheque Bounce Case?
6. If I don't have Invoice can I file Cheque Bounce Case under Section 138?
7. Can Accused object if I produce a Photocopy of Cheque in Court?
8. Can Court ask Bank to provide Record if I don't have Documents?
9. If I lose my Cheque or any other document will my limitation period get extended?
10. Can we settle if I don't have my original Cheque?
Final Thoughts
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