Dishonour of cheque
Arjun Karna
(Querist) 13 March 2012
This query is : Resolved
My mother has filed a criminal case against 'X' U/S138 NI act with 200 CRPC at JM court no 1 in Trichy. The case is summons stage now. In mean my mother has expired. Myself and my brothers are legal hires to her. Can we prosecute the case against the such X. Can law permitted for that. Any one of us taking power to proceed the case. Please guide us. What are the provision and steps available in NI act.
V R SHROFF
(Expert) 13 March 2012
YES,
Legal heir can proceed with 138 case,
Yes, a heir who is well versed with the fact of the case should represent .
Arjun Karna
(Querist) 13 March 2012
Thank you sir,
May i know about the plaint copy should amended or not.
Is there any citation about this fact.
adv. rajeev ( rajoo )
(Expert) 13 March 2012
It is not necessary to amend the complaint, memo is sufficient.
SAINATH DEVALLA
(Expert) 13 March 2012
Dear Mr.Arjun,
Any legal heir can proceed further in your mother's case.In the meantime obtain the legal heir certificate and submit it in the respective court.Other proceedings will go on as usual.It depends on the presentation of the case by your advocate.Act according to the advice of your advocate and the legal experts here.
Arjun Karna
(Querist) 13 March 2012
Thank you all.
Please clarify that can i proceed the case with legal heir certificate of one among the sons with others power of attorney.
If any reference case available please share the details.
Arjun. Jr.Advacate Madras High court
Deepak Nair
(Expert) 13 March 2012
Yes. You can proceed with the case with legal heir certificate of one heir and POA of another in favour of the first.
Ghanshyam Prasad
(Expert) 13 March 2012
You can proceed with case being legal heir.
DEFENSE ADVOCATE.-firmaction@g
(Expert) 13 March 2012
1) complainant is no more to permission of court is essential to replace the complainant and there after amendment of complaint.
2) HOWEVER THE COMPLAINT UNDER NI 138 IS CRIMINAL COMPLAINT AND THE OFFENSE IS AGAINST THE HOLDER OF THE INSTRUMENT AND NO BODY ELSE.
I THEREFORE REQUEST THE LEARNED EXPERTS TO THE PLEASE THROW LIGHT UNDER WHICH PROVISIONS OF CRIMINAL LAW THE COMPLAINANT CAN BE REPLACED.IT WOULD HAVE BEEN DIFFERENT MATTER IF THE COMPLAINANT WAS AN UN NATURAL PERSON.
Ajay Bansal
(Expert) 13 March 2012
As per section 320 Cr.P.C., L.R. can persue the complaint.
DEFENSE ADVOCATE.-firmaction@g
(Expert) 13 March 2012
CRPC 320 is for compounding.
However in forum section a citation of MUMBAI HC GOA bench has been given which says u/s 256 CRPC heir can be replaced. GOOD KNOWLEDGE.
Guest
(Expert) 13 March 2012
With ref. to the posts of Mr. JSDN, "I THEREFORE REQUEST THE LEARNED EXPERTS TO THE PLEASE THROW LIGHT UNDER WHICH PROVISIONS OF CRIMINAL LAW THE COMPLAINANT CAN BE REPLACED.IT WOULD HAVE BEEN DIFFERENT MATTER IF THE COMPLAINANT WAS AN UN NATURAL PERSON," his views would be appreciated on the following observation made by Punjab and Haryana High Court on in Bhag Singh vs State Of Punjab case on 8 March, 2001 (2001 CriLJ 2997):
"In S. Reddappa v. M. Vijaya, 1997(1) CCC 248 (Karnataka), the complainant had filed a criminal complaint before the Magistrate against the accused under Section 138 of the Negotiable Instruments Act. After recording preliminary evidence of the complainant, the Magistrate ordered summoning of the accused. Thereafter, the charge was framed and the case was fixed for evidence. Meanwhile, the complainant died and subsequently his son filed an application praying the Court to substitute him in place of the complainant and to permit him to continue the proceedings. The said application was opposed by the accused. After hearing both the sides, the learned Magistrate dismissed the application filed by the son of the complainant and acquitted the accused. Aggrieved against the same, a revision petition was filed before the Karnataka High Court. After hearing both the sides, the Karnataka High Court allowed the revision petition, set aside the order passed by the trial Magistrate and remitted the case to the trial Magistrate, with a direction to take up the case at its original number and to grant permission to the petitioner to continue the proceedings from the stage at which these were interrupted and to dispose of the same in accordance with law. While allowing the said revision petition, it was held by the Karnataka High Court that on reading whole of the Sections 256 and 302, CrPC 1973, and keeping in mind that a criminal case does not abate on the death of the complainant, Section 256, CrPC, empowers the Magistrate in a given case to permit a fit and proper person to continue the prosecution on the death of the complainant. Reliance was placed on the various decisions of the Karnataka High Court as also of the High Courts of Andhra Pradesh, Kerala and Calcutta, detailed therein."
ajay sethi
(Expert) 13 March 2012
well advised by dhingraji
Arjun Karna
(Querist) 13 March 2012
Thank you all for this wonderful support and guidance reg this issue
Guest
(Expert) 13 March 2012
Dear Ajay Sethi ji,
Thanks for your complements and support.
Guest
(Expert) 13 March 2012
Dear Arjun,
You are welcome. Hope you would well have taken the clue from the observation of Punjan & Haryana High Court to get appropriate solution to your problem.
Arun Kumar Bhagat
(Expert) 13 March 2012
There are judgements of Jharkhand and Calcutta High Court too.
Arjun Karna
(Querist) 14 March 2012
Dear All,
I need some more clarification.
1.In a cheque dishonor case, 4 number of cheque can present together at same collection which is permitted from law?.
Is it a technical flaw in the cheque dishonor prosecution.
2.My client have given 5 lac to the accused and he received the cheque of 5.40 lac with some percentage of interest. Is there any complication regarding this.
3.Rest of people who given to power to the petitioner not available in India now. Is there any law we have to produce rest of them in trial court?
V R SHROFF
(Expert) 14 March 2012
1.It is OK
2. No complication
3.No need.
SAINATH DEVALLA
(Expert) 14 March 2012
Mr.Arjun,
Instead of vasting your valuable time immediately obtain the legal heir certificate and produce it in the court for further orders.Shri.Dhingraji has given you ample information.
Deepak Nair
(Expert) 14 March 2012
Dhingra sir,
thanks a lot for such a detailed reply to the query.
Shonee Kapoor
(Expert) 14 March 2012
Agreed with expert opinion on this.
Regards,
Shonee Kapoor
harassed.by.498a@gmail.com
Guest
(Expert) 14 March 2012
Dear Deepak,
You are welcome please.
