kaya (manager) 27 June 2014

2014

ni act 138 case filed with magistrate court, in 2006- party complaint died on the year 2011.

for your infirmation . right from the begining complaintant not attended in person, but their advocate

attending each and every hearing. for the last 6 years the case is going on. complaint advocate only

appearing and judge posting the date regularly.

In this case any fefence we can take....their legal heirer not filing any statement through their lawer..

please clarify..

1)whether they can file to conduct the case through their legal heirer

2) any time limit after death of complintant legal heirer to proceed the case.

3) any chance to interupt the accused to take defence.

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7 Replies

RAJESH KHANNA mob 09780573241 (AS PRATICE LAWYER AT LUDHIANA) 27 June 2014

wheither complainant give a statement at time of filing suit that my advocate proceeds my case in my absent . or complaint file his permanent exemption from personal appearance only in these conditions your advocate proceeds suit in the absent of complainant . if so then legal heirs of complainant file a affidavit and proceeds case.

kaya (manager) 28 June 2014

Complaint party legal heir filed through advocate after three years fm death. Before case coming for trial. Total legal heir wife n two daughter. Any time frame and out of three person who is eligible to conduct case. Pls suggest any time limit is there. Because only chq issued on individual capacity. Reads

kaya (manager) 28 June 2014

R Trivedi (advocate.dma@gmail.com) 28 June 2014

There is a limitation prescribed under CPC (90 days) for substitution of legal heirs, many a times courts refer to CPC while deciding cases under S.138, so you must object on this ground.

In some other thread you have mentioned daughter as partner. Now this daughter says that she was the partner, is there any mention of this daughter in the complaint? If not then the complaint itself is non maintainable.

Nadeem Qureshi (Advocate/ nadeemqureshi1@gmail.com) 08 July 2014

Dear Querist it is the duty of court to direct to complainant's counsel to file an application for substitute the legal heir if they are willing to continue the case. it is discretion of the court how many time he grant the time to complainant.

the complainant may be appear through counsel and personal appearance of the complainant on every date is not mandatory.

Renu Chaudhary (ADVOCATE AND CONSULTANT) 09 July 2014

agree with Adv. Qureshi

DEEPAK ASSOCIATES (08010117611) 10 July 2014

1)whether they can file to conduct the case through their legal heirer

Two Question arise : first whether the complainant seeks personal exemption on each and every date

Second : whether the complainant has given the authorities to his counsel to appear on his behalf duly allowed by court

if not then the accused may object on the next date that the complainant has not been appeared since last 6 year and the court will take its own recourse.

2) any time limit after death of complintant legal heirer to proceed the case.

being the case is criminal in nature hence there is no time has been prescribed however the plea as suggested by Mr R Trivedi may be taken. It has been lapsed long time now it is open to court to grant the extension or not.

3) any chance to interupt the accused to take defence.

the accused may take the defence for none appearance on behalf of the complainant or other way as to be suggest by contested counsel.