A WhatsApp chat can look authentic when you see someone reading it on their smartphone screen. However, in the context of a cheque bounce complaint, a screenshot will not automatically prove the entirety of the complainant’s claims.
Imagine you’re a borrower, businessman, or private individual that suddenly receives a legal notice pursuant to Section 138 NI Act, 18 81; followed by a cheque bounce complaint filed alleging that you issued a cheque in respect of a legally enforceable debt or liability. The complainant then wants to introduce WhatsApp chats as proof of admission, promise to pay, acknowledgement of liability, or conversation about the cheque in question.
Which can turn a simple situation into feeling a whole lot worse than it actually is.
The important questions to ask are whether the WhatsApp messages were part of ongoing conversations. Do the messages say what the complainant is claiming they do? Has the entire conversation been produced to the Court? Who were the actual senders of the messages? Can the electronic record be proved? Most importantly, does the conversation establish the existence of a legally enforceable debt as alleged by the complainant?
If you have been accused of cheque bounce in Delhi NCR, Noida, Ghaziabad, Gurugram, Faridabad, Meerut, Lucknow, Mumbai, Bengaluru, Hyderabad or any other city in India; it helps to know this upfront. A partial digital conversation should not be presumed to speak for the whole truth.
Clients are advised by Advocate BK Singh to review all documents together. Look at the cheque, bank record, notice and underlying transaction together rather than focusing on a WhatsApp screenshot in isolation.
How Important Is WhatsApp Evidence On A Cheque Bounce Case?
WhatsApp evidence can be important in any financial dispute. Many people have conversations about loans, invoices, repayment dates, instalments, loan settlements, and cheque deliveries on messaging applications. Providing proof won’t be a problem because the conversation can create a digital paper trail.
Electronical / Digital records are now admissible as evidence under Bharatiya Sakshya Adhiniyam, 2023 and subject to proof in accordance with the statutory requirements contained therein. Section 61 provides that an electronic/digital record shall not be deemed to be inadmissible, even if it is in electronic form. Section 63 exclusively deals with proof of electronic record.
Although. seeing a WhatsApp chat on someone’s phone screen in Court will not automatically end your case.
Partial WhatsApp conversations could be used to support certain aspects of a financial transaction. They can also leave many questions unanswered. Saying “I will arrange the amount” could mean a multitude of things depending on the conversations leading up to, and following that message.
A proper defence to a cheque bounce complaint will try to discover the context.
♦ Section 138 NI Act 18 81 – punishment for dishonour of cheque for insufficiency, etc. of funds and certain other circumstances.
♦ Section 139 NI Act – Provides statutory presumption in favour of holder. But such presumption is rebuttable.
♦ A complainant will typically rely on the cheque, bank dishonour memo and proof of compliance with statutory notice requirements along with evidence about the underlying transaction for which the cheque was issued.
♦ Electronic evidence such as WhatsApp chats can be useful. But would depend on what has been said in the chats, whether the electronic evidence is original, complete and the requirements of admissible proof under law.
♦ When a WhatsApp screenshot is cropped, how would one know what was discussed before and after that screenshot conversation?
♦ Electronic Evidence has been newly defined under Bharatiya Sakshya Adhiniyam, 2023 and includes what was previously referred to as electronic records.
♦ Each and every cheque bounce case is different depending on the facts, documents and transaction history.
What Is The Core Defence When WhatsApp Chats Are Misused?
“The material issue ordinarily is not whether the complainant can produce a WhatsApp chat. But what the chat proves vis-a-vis the cheque and enforceable debt.”
Section 139 of the NI Act creates a presumption as to the existence of the debt for which the cheque was allegedly issued. The Supreme Court has clarified that this statutory presumption raises a presumption of law which can be rebutted by the accused by raising a probable defence.
Simply because you may have said something via Whatsapp, does not mean you cannot raise a defence if the facts dictate otherwise.
What’s important is the overall factual scenario. If a complainant produces a whatsapp chat which says “ I will clear this soon”. The complainant will try argue that this sentence admits to the entire alleged debt being claimed for. But if you examine the prior messages, they could show that there was a dispute about an invoice, conditional promise to pay, a compromise being discussed or something else entirely.
“If messages are taken out of context then their natural and ordinary meaning can be distorted.” Advocate BK Singh looks through the entire chain of documents before concluding what one message says.
Under which Law WhatsApp Evidence can be produced?
The instant you hear about a cheque dishonour complaint, you know that it falls under the Negotiable Instruments Act, 18 81. More specifically Sections 138 to 147. India Code Section 138 strikes as “dishonour of cheque for insufficiency etc, of funds” Section 139 mentions “presumption in favour of holder”, Section 142 speaks on Cognizance, Section 145 “evidence on affidavit” and Section 147 is “compounding”.
Section138 further contains statutory requirements as to when a cheque was presented, the issuance of a written notice and failure to make good on the cheque within the statutory time after receipt of notice.
Whatsapp messages present an entirely different issue regarding evidence.
The Bharatiya Sakshya Adhiniyam, 2023 has accepted the use of electronic and digital records and goes on to provide specific provisions regarding the admissibility of electronic records and how such electronic records can be proved. Section 61 states that an electronic/digital record would not be denied legal effect based on the fact that it is in electronic form. Section 62 directs you towards those special provisions that apply to electronic records under Section 63.
Effectively, the defence has two “legs” to stand on:
- Whether all the ingredients of a cheque bounce have been proved; and
- Whether the digital document you are relying upon actually proves what its being produced for.
The Supreme court has also said that Electronic material such as Whatsapps conversations can be produced as evidence in a court of law.
Can a Whatsapp Screenshot Alone Prove The Alleged Debt?
No. Not automatically.
A whatsapp screenshot will have the name of the sender, profile photo, date & time and message. But that does not mean it will automatically prove every question of law regarding the underlying transaction.
There could be questions as to whether the phone/account belonged to the person they say it does; whether the messages are complete; whether prior messages were deleted; whether the messages were referring to the same transaction you’re being sued for; and whether the amounts being mentioned in the chat matches the amount on the cheque.
The judge has to deal with the evidence that is put before him. Therefore Counsel should not be making arrogant exaggerated arguments that no whatsapp evidence should ever be reliable.
The correct approach is to ask what specifically is missing, disputed, inconsistent or unable to prove the complainants allegation.
What Constitutes A Valid Defence On Cheque Bounce?
General advice is to start any legal analysis from the beginning. Start from what evidence of transactions exists:
Look at the cheque, bank return memo, legal notice and what the complainant is alleging. After that you can review the transaction itself and look for agreements, invoices, receipts, account statements, payment entries, correspondence and any other electronic documents supporting the transaction.
Review all WhatsApp chats as part of a continued conversation and not individual sentences ripped out of context.
If a complainant takes 2 lines from a 200 message conversation the conversation before and after could become relevant. If the chat refers to multiple transactions, different amounts or altered payment terms then that could also become relevant. Remember, when it comes to cheque bounce cases the Supreme Court has repeatedly held that the Section 139 presumption and probable cause must be raised instead of an unsubstantiated claim of “I will not pay”.
This is why obtaining all evidence can help build a proper defence.
Who Needs to Read this Defence Advisory?
Legal professionals will see this situation arise with those who issued a cheque after receiving a loan; merchants that find themselves in the middle of a disputed commercial transaction; directors or authorised signatories to a company being threatened with / involved in proceedings against the company; and businesses or individuals seeking to negotiate a settlement.
Individuals who have casually commented to each other on Whatsapp about clearing the cheque, making a payment, settling a debt, not agreeing with the amount stated on the invoice or anything else could find themselves trying to explain those individual statements made to each other in Court.
One person may have said “I will pay once the account clears”, without agreeing to pay the total amount demanded. Another person may have said “I have received your cheque” despite questioning the validity of the invoice.
Often these simple cases come down to nuances in language.
Advocate BK Singh will go through a client’s chronology of facts before assuming that a Whatsapp conversation destroyed their defence or resolved all their problems.
What Is The General Process For Responding?
In order to avoid having to respond to a WhatsApp screenshot, first gather all of the files you have.
Read the cheque, bank return memo, statutory notice and complaint. Afterwards you can go through the transaction and compare it to how the complainant is saying things happened. Whats app chats, e-mails, bank transfers, bills, agreements, acknowledgements and any other documents that can help you sort out the timeline of events.
You can now work out what your defensive position is with regards to the statutory presumptions and the facts that can be proved.
The next steps could include Court appearances, making objections to evidence, cross examining complainants and witnesses, negotiating a settlement or any other legal option available to you under Indian law. Every case can progress in many different ways depending on the facts and how far your case has progressed.
Clients seeking help from a cheque bounce lawyer in Delhi NCR or India will notice that a sooner review can help you, especially if the opposing party has a significant amount of digital evidence they’re relying on.
Which Documents/Evidence To Preserve?
Anyone who thinks that they may become involved in a cheque bounce dispute should preserve originals of relevant documents they have. Potentially useful documents can include:
- The bounced cheque; and Cheque details.
- Return memo or information from the bank about the dishonor.
- Copy of the legal notice sent and proof it was served.
- Copy of complaint/ plaint received from the Court.
- Any agreement, invoice, receipt or loan documentation.
- Bank statements which show payment/transfers.
- Any Whatsapp chats that relate to the transaction.
- Emails and other correspondence.
- Offers to settle the dispute and make payment.
- Documents that prove the actual amount in dispute/payable.
Don’t crop WhatsApp chats that support your position.
Keep the original electronic evidence. Don’t rely on screenshots. The Judge may want to see the entire conversation if possible.
When Should I Consult A Cheque Bounce Lawyer?
Legal advice should be sought at an early stage such as when;
- ♦ Notice is issued under the NI Act;
- ♦ Complaint is already registered;
- ♦ WhatsApp chats have been mentioned by the complainant;
- ♦ Cheque was issued for a large amount;
- ♦ Underlying debt is disputed;
- ♦ Transaction involves multiple transactions/documents;
- ♦ Parties have exchanged messages about paying back or settling the amount on a messaging application.
Cheque bounce lawyer Advocate BK Singh will review your cheque bounce history, supporting transaction evidence and chat conversations. This allows the lawyer to ensure that the client understands his real issues rather than working on presumptions.
Can A Cheque Bounce Lawyer Help?
At Cheque Bounce Lawyer we specialize in legal issues related to cheque dishonour problems & proceedings. Our focus is on Evidence. Cheque Book Entries, Bank Statements, Legal Notice copies, any financial document/paper trail and any supporting electronic evidence such as emails. If WhatsApp chats have been mentioned by the complainant as proof of debt; those timelines and contents of those chats would be scrutinized along with the laws regarding their admissibility as evidence.
Lawyer Advocate BK Singh will go over the legal position you’re in, help you prepare a reply and discuss the legal options you have depending on your facts. We do not do this to promise you a certain outcome. Understanding the facts and the evidence against you and knowing the law will allow you to understand how to build a strong defence.
FAQs
Q1. Can I use WhatsApp chats in cheque bounce case?
Ans. Yes. Electronic / Digital records can be produced as evidence in court. The evidentiary value will be determined subject to proof in accordance with the applicable provisions. Whether any particular WhatsApp chat is relevant or has any evidentiary value would depend upon the facts and the manner in which such chats are produced before court.
Q2. Can a complainant produce/cite only selected Whats App screenshots?
Ans screenshot which are favourable for his claim. However, the defence would be entitled to challenge the relevancy, completeness, authenticity and context of those messages. Ultimately the Court will take into consideration all the evidence before it.
Q3. Does a WhatsApp admission prove the cheque debt automatically?
Ans. No. Just because there is an admission in a WhatsApp chat it still has to be evaluated in the context of the facts that were prevailing at the time it was made. A WhatsApp chat/ message which says that the payment was made/ settled would not automatically prove all elements of the debt complained uinder Section 138.
Q4. What should I do if WhatsApp conversation has been cropped?
Ans. If a WhatsApp screenshot has been cropped by the complainant and it omits previous or later messages which would change the context. Then the entire conversation would become relevant. If you receive a legal notice preserve all the original documents that you have access to and seek legal advice immediately.
Q5. Does Section 139 NI Act discriminate in favour of complainant?
Ans. No. Section 139 puts a statutory presumption in favour of the holder/complainant that the cheque was issued for discharge of a debt or liability. However such presumption is rebuttable ie the accused can provide a probable defence and the Supreme Court has laid down guidelies on how the accused can rebut the presumption.
Q6. Can presentation of a security cheque lead to a Section 138 case?
Ans. Yes. Just because a cheque was delivered and described as a “security cheque” at the time of delivery; this does not automatically mean that a legally enforceable liability existed at the time it was presented for payment. The documents/transaction and other surrounding circumstances would have to be looked at.
Q7. What evidence should I preserve if I received cheque bounce notice?
Ans. Preserve cheque information, bank records, notice issued pursuant to Section 212, complaint if already received, any agreements/invoices/payments/receipts. Take special care to preserve complete WhatsApp chats between the parties. Don’t delete, alter or pick & choose Whatsapp chats if they help your position.
Q8. Will WhatsApp chats help the accused?
Ans. They could help the accused. It would depend on what those chats actually prove as facts. There could be messages that would help you defend against an allegation as to the amount or nature of the transaction; payment/settlement was made; it was a disputed liability; or any other fact relevant to the transaction.
Q9. Should I reply to complainant on Whats App after receiving cheque bounce legal notice?
Ans. No. Don’t write or agree to anything on Whatsapp without taking legal advice. It’s very easy to write something that you don’t mean on Whatsapp but have it used against you. If someone sends you a legal notice, you should not respond without first taking legal advice.
Q10. How can Advocate BK Singh help if your cheque was dishonoured based on WhatsApp chats?
Ans. Advocate BK Singh can review the documents related to the cheque bounce complaint; review the underlying transaction and relevant whats app chats; advise you on the applicable legal position and help you draft the required response based on the facts.
Conclusion
Cheques chats can be powerful evidence but a What'sapp screenshot will not automatically be treated as proof of the complainant’s claims. Prosecution under section 138 requires careful analysis of the statute, presumption, documents and transactional facts that are being complained about.
Emails / WhatsApp chats could help either the complainant or defendant depending on what all facts are brought forward on record. If you’ve received a cheque bounce legal notice or are already in cheque bounce court proceedings; save all conversations digitally along with any other documentary evidence of the transaction. Avoid deleting messages or responding in haste before you know your legal rights.
Advocate BK Singh can review the documentary evidence in your possession and advise you on your legal options based on the facts of your case. Advocate BK Singh helps individuals and businesses across Delhi NCR and India.
