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Binod Kumar Mishra (Government Service)     14 November 2009

Cheque bounce calling of witness

Dear Experts,

my client is involved in a case of bounce cheque and later the court after hearing only 1 and half witness (the witness escaped after deposing half and did not turn up next day) closed the case and not considered our plea to call the witness or to examine a very important witness.

later on the court change and the new court has directed us to file some papers and also to file our defence to call the other witness including the one who has not been allowed to deposed.

Experts please give me some citation that when the case has been closed, by which method we may again represent to call the witness who had already deposed himself.

it is a very urgent matter please give citation.



Learning

 9 Replies

AEJAZ AHMED (Legal Consultant/Lawyer)     14 November 2009

Dear Mishra.
 
Kindly go through the below mentioned Citations:
 
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Criminal Procedure Code:
 
 
Section 311. Power to summon material witness, or examine person present. Any Court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or. recall and re- examine any person already examined; and the Court shall summon and examine or recall and re- examine any such person if his evidence appears to it to be essential to the just decision of the case.
 
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Citatons:

(1) MOHANLAL SHAMJI SONI VS. UNION OF INDIA, reported in 32(2) G.L.R. 974.

(2) Rajendra Prasad vs The Narcotic Cell ; reported in AIR 1999 SC 2292 ( https://indiankanoon.org/doc/1219209/

(3) https://indiankanoon.org/doc/869727/

In Mohanlal Shamji Soni's Case,  it is held that the power of the Court to summon or call any witness or witnesses or recall a witness or witnesses already examined can be invoked at any stage as long as the Court is seisin of the criminal proceedings and that such jurisdiction must be dictated by exigency of the situation and such additional evidence can be permitted to be adduced only after giving a fair and reasonable opportunity to the accused to rebut the evidence that was brought against him.

In view thereof, It is therefore clear that the Criminal Court has ample power to summon any
person as a witness or recall and re-examined any such person even if the evidence on both sides is closed and furhermore if circumstances so warrant Court has power to permit examination of a person though he is not cited as a witness by the prosecution in the charge sheet or private complaint, but due opportunity must be given to the accused to rebut that evidence.

 

Anil Agrawal (Retired)     14 November 2009

 Court has the power. That is material. At your bidding, will it agree. That is the million dollar question. It is subjective satisfaction.

Jai Kr. Ambavata ( Advocate)     14 November 2009

mr. Ahmed said very well. i m agree with him.

K.C.Suresh (Advocate)     15 November 2009

S.311 CrPC is the apt section

Adv. T.K Sujith (lawyer)     15 November 2009

It is the duty of the court to complay the section 254 of CrPC and ensure the presence of a bound overed  witness for further examination. If u hav a good defence case u may ask the court to issue warrant  against the witness. If the court denys urprayer it will favourable to u  in an appeal stage.

Anil Agrawal (Retired)     15 November 2009

 It boils down to one thing i.e. go on spending time, money and energy in the hope of getting justice. There is no body to question the magistrate as to why he does not comply with the request. The maximum that will happen is that the HC will overturn his order.But, the big question is when? It may take any number of years before the case comes up before the HC. Then it will take another number of years for the order to reach the trial court. Then? It is a big then? But that is law and who has an alternative but to follow it?

Anil Agrawal (Retired)     15 November 2009

 Quoting Dr. Tripathi:

In Allahabad High Court currently second appeals of 1977 and criminal appeals of 1981 are being listed for hearing. 

jha sanjeev (Executive)     20 November 2009

Dear Sir,

I had issued 3 cheques in 2007 of Rs.2500/- each with out writing the name and date on the cheques to facilitate the owner to deposit a cheque every month, when ever he is not able to collect the rental amount personally from me in cash.

While leaving his rental house, i asked to give back the unused cheque, which he told me that he has lost. I issued ‘STOP PAYMENT’ for all these 3 cheques after leaving his house. He has also not made any agreement with me inspite of repeated request (I stayed in house for 4 years) and did not give me back my deposit amount of Rs.40,000/-.

I was staying on rental house at santacruz and left the house in april, 2008 and shifted to kandivali. I had taken admission of son and daughter in april, 2008.

Now, on 25th September, 2008 he has deposited all the three cheques of Rs.2500/- each which got bounced.

Now he has filed case against me under negotiable instrument act.

Please guide, what to do and how to give justification in the court.

Anil Agrawal (Retired)     24 November 2009

 Is reconciliation proceeding compulsory in cheque bouncing cases also?


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