whether the records of account books of plaintiff –witness’s firm be summoned as defence wit
Rajesh
(Querist) 28 May 2012
This query is : Resolved
Problem:
What Plaintiff’s single “Witness” Stated in his Cross Examination?
1. Plaintiff has planted a false witness , who is Managing Partner of Firm ( Commission Agent ) and submitted the following in his cross examination .
2. Witness stated that
“ On the date of execution of sale deed 7th June,2007 , I gave Rs.12 lacs after taking the same from his firm ( Commission Agent) as a partner and gave to Plaintiff aforesaid amount in cash , Without charging interest & any written agreement/receipt and got his signature on my( personal) cash book . ” . Witness further admitted in his cross “It is correct that when I tendered my affidavit in the court, I did not get the books of accounts of my firm certified from the court , Self said that I brought the account books on that day.
On further cross examination , the Witness said that I cannot orally say that what the annual business of the firm is. I cannot say what is business of my firm in the year 2006-2007 orally. I cannot say the business of the firm for the year 2005-2006 or two three years before orally. It is correct that I cannot orally say there was income of Rs.1 lac, two lacs, five lacs 10 lacs of the said firms.”
3. After Witness ‘s Cross examination got over, Defendant came to know from our reliable sources that Witness Firm’s Bank accounts doesn’t depict strong Financial capacity during that period ( 2007-08) and was not in position to lend Rs 18 lakh that too without charging interest . The Witness , being Managing Partner of the Firm ( Commission Agent) has fudged the entries in the books of accounts of Firm and has shown the following entries as he has borrowed from his Firm as a partner and further given from his Account to the Plaintiff all in Cash Rs 12Lakh . In his support Witness submitted an Exhibit - a Statement of account on his Firm’s letter head and signed by himself as partner in his Examination in Chief but not as Annexure of his Affidavit .
After that , defendant cross checked informally from the Firm’s Banks accounts and came to know about very week Financial Position of the Firm . The Firm has filed IT return with Rs 9800 as a taxable income only , perpetual Cash credit limit overdraft etc. Immediately, Defendant filed application for recall of Witness in view of new facts came to our notice . The Court rejected Defendant’s request but Ordered that “ Defendant would be having appropriate opportunity to rebut during his evidence by summoning the said record from the agency from which the same is alleged to have been issued.”
Since the onus is on Plaintiff to prove his “readiness & wiliness” in the case of Specific performance on the date of execution 7.6.2007 . The Cross of Plaintiff is yet to take place .
Please give your opinion on the following
Q. What kind of questions be asked to the Plaintiff during his cross.?
Q. In pursuance of Court’s order , Whether it is prudent or safe to summon the the Records of Account Books incl IT& sales returns,of the Plaintiff’s witness Firm as Defence Witness to know the Financial capacity as well as sources of Rs 12 lakh given to Partner for further lending to Plaintiff ?
Q. What if , Plaintiff ‘s advocate will get the chance to ask friendly questions during cross ?Will that not go against us.?
Q. What Strategy should we adopt while summoning the Firm’s so that it doesn’t harm defendant’s case.?
DEFENSE ADVOCATE.-firmaction@g
(Expert) 28 May 2012
CROSS EXAMINATION IS A GREAT ART AND IT CAN NOT BE ACHIEVED BY SEEKING SUCH PIECE ADVICE, YOU MUST PLAN A COMPLETE STRATEGY . I HAVE SEEN FROM MY ALL INDIA VISITS THAT MOST THE OF THE ADVOCATES TAKE CROSS AGAINST THEIR OWN CLIENTS WITHOUT ITS AWARENESS.
Take following example which I repeat in many bar association lectures and also applicable to your above case.=
Certain examples of how your advocate takes cross which goes against you and results in loosing the case, which would have been won easily.
1) Your advocate ask in the cross to the complainant that does he maintain accounts- the intention is to show to the court that he does not maintain account and the liability is not existence/real.
Now the reply is most cases will be YES, even though no accounts are there . So unwittingly your advocate has brought on record that the complainant is maintaining accounts.
To cover this lapse even though the advocate do not understand what HARAKARI / suicide he has made of his case ; he will ask through court for submission of accounts. Few dates will pass , no accounts will be submitted . If the matter is pressed the court will say adverse inference will be drawn. But this is a vague term and every body forgets it in further happening of the case so no adverse inference is drawn.
WHAT SHOULD HAVE BEEN DONE- Your advocate should have asked “ whether you have produced any accounts “ , which he will say a big NO. However without exception court generally discourage such questions on the plea that since accounts are not there so court will take note. No , you should not be influenced and insist for the question. And once it comes on record basic foundation of the complainant case is broken.
2) Similarly there was lot of discussion about unstamped slips of the bank and thereafter deposition of bank officer which went against the accused.
Here again once the legal requirements of the bank slips are not taken care by the complainant that the same should be stamped, no further evidence to support them must be allowed by the accused. By allowing further evidence of bank person you have given acceptance and validity of otherwise invalid evidence.
There are numerous such examples where the advocates of the accused miss opportunities and than blame all others .
Adv.R.P.Chugh
(Expert) 28 May 2012
What I Don't understand Rajesh is - why is the plaintiff being cross examined after the partner's examination as well as cross. It is a trite rule that Plaintiff (where he is a witness) has to enter the witness box before all others and should not get a chance to have for his benefit other witnesses's chief or cross before he enters the witness box - because that gives him a chance to fill in the lacunaes exposed in the testimony of his witnesses.
Rajesh
(Querist) 28 May 2012
I do agree to conduct cross examination , a complete strategy is required. It is an art . In my case , somehow due to non- insistance by my advocate , Plantiff could not be cross examined before his witness . In order to avoid further such mistake, I submitted my problem for seeking experts opinion so as to avoid any reocuurence of such mistake even bonafide.
AS DEFENDANT, I am facing confusion , due to the fact that Since Plaintiff has planted a false witness ( a commission agent) to state that he on date of execution , he borrowed Rs 12 lakh ( balance sale consideration) from him. As disclosed earlier, Witness didn't substantiated his claim without submitted his Firm's Accounts Book.
Since, I have come to know from informal sources that Firm's Banks A/cs & IT returns doesn't depict a strong Financial health, which have capacity to lend Rs 12 lakh in cash .
On coming to know above, Wanted to recall witness to cross but Court rejected my request but allowed to summon records of firm from the agencies concerned , during my evidence.
So , I seek your opinion
In pursuance of Court’s order , Whether it is prudent or safe for Defendant to summon the the Records of Account Books incl IT& sales Tax returns,of the witness Firm as Defence Witness to know the Financial capacity as well as sources of Rs 12 lakh given to Partner for further lending to Plaintiff ?
OR , Defendant can leave this step , since onus of prove and bring evidence is on the Plaintiff or his witness .
(2) If it is necessary to summon records of Firm , then What Strategy Defendant should adopt while summoning the Firm’s so that it doesn’t harm defendant’s interest ?
Shonee Kapoor
(Expert) 29 May 2012
Nothing more to add.
Regards,
Shonee Kapoor
harassed.by.498a@gmail.com
