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LEGAL QUEST ADVISORS   12 June 2023

Complainant filed case under sec.138 of ni act.

The Complainant filed the case under Sec.138 of NI Act and recently he had given GPA to his brother as he will be out of country for next 8 months. 

In view of the above circumstances, under what provision the petition is required to file along with GPA copy to take the permission of the Hon'ble Court to make the presence of Complainant's brother on behalf of Complainant.

Thanks in advance.



Learning

 4 Replies

Dr. J C Vashista (Advocate )     12 June 2023

The GPA will have to be endorsed / mentioned in the complaint and to be submitted with it, which needs no separate permission of the Court.

T. Kalaiselvan, Advocate (Advocate)     13 June 2023

In the pleadings of the cheque bounce case, the name of the GPA can be included and a separate mention that why the case is filed through a power agent is to be specified.

There is no infirmity in filing the cheque bounce case through a power agent 

LEGAL QUEST ADVISORS   13 June 2023

Thank you for replying sir, I have already filed the complaint and got numbered during the presence of Complainant in India and later he moved to abroad. So as I am new to practise in Criminal laws I am not able to find the provision to file the GPA in the court in the above case. Can you help me out by providing the provision for filing GPA in the NI Act case.

Dr. J C Vashista (Advocate )     14 June 2023

Provision for appointment of counsel to assist Public Prosecutor by accused or his private counsel has been explained in Section 301 & 302 Cr PC.

In the case of [J. K. International Vs. State (NCT of Delhi) & Ors, (2001) 3 SCC 462], referring to Section 302 of Code of Criminal Procedure, 1973, the Supreme Court held that when the trial is before a Magistrate's Court, the scope of any other private person intending to participate in the conduct of the prosecution is still wider. Explaining the provisions of Section 302, Code of Criminal Procedure, 1973, the Supreme Court further observed that:
The private person who is permitted to conduct prosecution in the Magistrate's Court can engage a Counsel to do the needful in the Court in his behalf. It further amplifies the position that if a private person is aggrieved by the offence committed against him or against anyone in whom he is interested he can approach the Magistrate and seek permission to conduct the prosecution by himself.

Recently, in the case of [Amir Hamza Shaikh & Ors. Vs. State Of Maharashtra & Anr., (2019) 8 SCC 387], the Supreme Court further clarified this issue by observing that though the Magistrate is not bound to grant permission at the mere asking but the victim has a right to assist the Court in a trial before the Magistrate. The Magistrate may consider as to whether the victim is in a position to assist the Court and as to whether the trial does not involve such complexities which cannot be handled by the victim. On satisfaction of such facts, the Magistrate would be within his jurisdiction to grant permission to the victim to take over the inquiry of the pendency before the Magistrate.


 


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