Complainant regularly absent for proceeding u/s 138
Adv. Mohan Chandra
(Querist) 27 March 2009
This query is : Resolved
The complainant is a multinational bank and I am an accused in the case u/s 138, 142 and compensation u/s 357(3). The said case will be shortly completing 4 years. The complainant representative are regularly absent during the proceedings and have been severly reprimanded by various Magistrates on many occassions but on two earlier occassions when the Magistrate were about to dismiss the case they were transfered as per routine.
During the last four hearings the complainant was absent again on the second last hearing the complainant was penalised 1000 and given a last warning and on the last hearing as the complainant witness was absent again for cross examination the cross examination has been closed by the Magistrate.
Now I would like to seek your guidance on how to proceed further.
Should I submit an application for dissmissal of the case, if so what is the procedure. In the last cross the complainant has first denied demanding blank cheques, but later agreed that blank cheques without amount and date were accepted at the time of opening the account.
Kindly note that I am pursuing this matter on my own for the last one year.
Thanking you in anticipation.
Comments Added on 28/12/2009
Sir,
Thank you for your guidance.
Magistrate has already closed the cross examination and informed the complainants advocate that the "matter would proceed further for necessary action" on next date. In view of this what is the nature of necessary action I can expect.
While in the Affidavit the complainaint has mentioned that the accused made the payment in settlement of Rs.xyz on 25/05/05 subsequently in the last cross examination the complainant witness has accepted that blank cheques were accepted prior to opening the account in June 2002 and has since failed to appear for further cross examination.
Under the above circumstances now I cannot proceed further to prove that I had no liabilities at the time of issuing the cheque infact even later.
I would very much appreciate if you will kindly guide.
PALNITKAR V.V.
(Expert) 27 March 2009
There is no procedure prescribed as such. But file an application for dismissal of the complaint stating that the complainant is absent since long and the accused is unnecessarily harassed. Make an alternative prayer that the evidence for the prosecution should be treated as closed and matter should proceed further.
M. PIRAVI PERUMAL
(Expert) 27 March 2009
I agree with the view of my learned friend Mr. Palnitkar.
adv. rajeev ( rajoo )
(Expert) 28 March 2009
U cannot file an application for dismissal of the complaint, because trial is begin. When the complainant has not offered for cross examination, then u go for ur client's evidence.
Pawan Mittal
(Expert) 28 March 2009
This is a criminal proceedings and the complainant is required to be present. At the time of proceedings you can request to MM to dismissal of the complaint stating that the complainant is absent since long and the accused is unnecessarily harassed. You need not required to make any alternative prayer to this effect.
Adv. Mohan Chandra
(Querist) 28 March 2009
Rajeevji
Thank you
I myself am the accused in the case and have made and application to the complainaint to produce the books of account, sanction letters and discounted bills on two occassions (advocate to advocate) and on two occassion through the order of the Honourable Magistrate and the complainant has failed to produce the same.
Do you mean to say that I should produce available evidence with me that there was no liability at the time blank cheques were issued, infact even later.
Adv. Mohan Chandra
(Querist) 28 March 2009
Pawanji
Thank you for your reply.
But the complainant is playing traunt for over 3 years now. Is it necessary to procure a copy of the Rojnama to prove my point.
PALNITKAR V.V.
(Expert) 28 March 2009
There is presumption against you to the effect that the cheques were issued for legally enforceable debt. Hence, by way of abundent precaution it is better if you produce evidence to show that there was no liability. But press for dismissal of the complaint on the ground that the complainant remains absent.
Adv. Mohan Chandra
(Querist) 29 March 2009
Palnitkarji, Rajeevji, Pawanji Thank you very much for your opinion
A. A. JOSE
(Expert) 30 March 2009
I too endorse above views.
