Section 138 ni act
Munish Kumar Garg
(Querist) 06 May 2012
This query is : Resolved
Hello members,
I am convicted under NI Act by both the courts below. My few questions are as follows:-
1) My basic problem is that as the NI Act proceedings are of summary trials as per law and in my case the NOTICE OF ACCUSATION WAS GIVEN TO THE ACCUSED BY SDJM COURT and TRIAL was CONDUCTED BY THE JMIC COURT.
So can anyone tell me that the trial becomes illegal or not/ whats the legality in conducting the trial by the JMIC COURT instead of SDJM COURT who issued the NOTICE OF ACCUSATION to the accused in present case.
2) My another query is that there are two please taken by the complainant in his case one that accused cheque to him on the non-payment of salary in Para No.1 of the complaint and whereas in Para No.6 of the complaint he is taking plea that he had borrowed the money from him for few days. But ld. lower courts below did not take this contradictory pleas of the complainant and holds that plea No.1 in Para No.1 is sufficient to prove the guilt of the accused without giving any finding on the plea of borrow.
So my request to all of you is that please guide me some good citations in this regard, so that I can file Criminal Revision Before the Hon'ble High Court against conviction.
I am attaching the copy of judgment and grounds of appeal with this query.
Please reply me as soon as possible.
Thanks
Munish Kumar Garg
Advocate
ajay sethi
(Expert) 06 May 2012
the court has observed as under
It has been observed that the version of the complainant is clear that the cheque in question was issued for discharge of his liability of arrears of his salary. The notice EXC1 is again clear in this regard and there is no ambiguity. Furthermore the accused has no where stated that the complainant was not his employee.
you had been issued legal notice . you have not replied to notice . the court has been satisfied that the complainant is your employee and you have not denied above fact .
to my mind it would be better if you settle with complainant .
Munish Kumar Garg
(Querist) 06 May 2012
thank sir alot for replying, I will follow your suggestions but still for the sake of knowledge, please tell me the answer to my first query, may that will be fruitful to my case.
V R SHROFF
(Expert) 06 May 2012
It shd be tried by JMFC.
You mentioned "SDJM COURT and TRIAL was CONDUCTED BY THE JMIC COURT" is unclear. Any confusion, or doubt for Jurisdiction of issue process or trial , can be challenged filing Revision [Though I do not think , any chance!]
I fully agree with suggestion of Shri Sethy.
Settle it out of court.
Munish Kumar Garg
(Querist) 06 May 2012
Thanks alot Sir V R Shroof and Sh. Shetty. I am highly obliged for your replies.
Shonee Kapoor
(Expert) 07 May 2012
Never mention. This is a great place of learning for us as well.
Regards,
Shonee Kapoor
harassed.by.498a@gmail.com
DEFENSE ADVOCATE.-firmaction@g
(Expert) 07 May 2012
I feel your second point has lot of weight but you have not contested it properly at lower court.
1) I am not able to see the copy of complaint, from which I can tell you how to come out.
3) Power of defense is perpetual and most powerful , but it is my personal experience that learned advocates of the accused do there home work alright but commit blunders in taking cross which goes against their own client and loose case.
EVEN BY PROPER CROSS YOUR CASE COULD HAVE BEEN WON AT LOWER COURT.
DEFENSE ADVOCATE.-firmaction@g
(Expert) 07 May 2012
I give an example for blunders in cross which as a rule the advocates of the accused to at lower court.
Yesterday at ONE COURT THE learned advocate was taking cross., in a cheque bounce case. The case was sure win but he spoiled in the cross.
HISTORY-Cheque bounce was for lease rent, no regd agreement and no LEGAL /DOCUMENTRY proof of actual possession.
The advocate had done the home work alright. But see the mistake.
He asked the question to the complainant - the lease agreement is not registered, not witnessed and hence not signed by the accused.
The normal natural reply of the complainant was denial , so it has come on record that the agreement is signed by the accused.
THE QUESTION SHOULD HAVE BEEN -CAN YOU PROVE THE LEASE AGREEMENT IS SIGNED BY THE ACCUSED. And the normal answer would have been a big NO.
Similarly for possession and use of leased premises.He asked the premises have not been used by the accused and answer was IT IS NOT TRUE. So it has come on record that premises were used by the accused.
The proper question should have been - CAN YOU PROVE THAT PREMISES WERE OCCUPIED OR USED BY THE ACCUSED and answer would have big NO .
On similar tactics we forced MIGHTY MULTINATIONAL BANKS to withdraw the cases against the accused., last month.
V R SHROFF
(Expert) 07 May 2012
Shri JSDN suggested very good tact of cross examination.
Agreed that suggestions can be fatal . It harms
But as trial is over, can you get order for re trial in appeal?? JSDN may throw light on such possibilities in this particular case.
DEFENSE ADVOCATE.-firmaction@g
(Expert) 07 May 2012
Shroff sir in above case the accused has lost even in sessions court and probably in custody if not bailed.
1) In lower court the Heramann case was discussed BUT it is in favour of accused and the same was not even taken at sessions court.
2) Another glaring mistake which even a junior most advocate should have taken at lower court is hammering at the pleading that liability was for FOURTEEN MONTHS SALARY AT FIVE THOUSAND PER MONTH.
So how the complainant worked for such a long time without salary and what records were there for non payment of salary.
The accused advocate must have hammered on this point alone.
3) Another mistake is admission for signature on cheque, it should have been the burden on complainant which is made easy FOR HIM BY ADMISSION OF THE ACCUSED and than some non applicable citations are produced.
4) Hermann case is master piece in aid of accused but very rare people even try to use it.
Lower court has referred HERMANN case but drawn conclusion against the accused which is otherwise in favor of the accused.This should have been taken at SESSIONS COURT. Not taken, golden opportunity lost.
So my suggestion is THAT take above discussion in mind and file revision at HC, case is SURE WIN.
IT WAS SIMPLE SURE WIN EVEN AT LOWER COURT BUT DUE TO LOUSY DEFENSE IT WAS LOST AT LOWER COURT AND EVEN AT SESSIONS COURT.
Munish Kumar Garg
(Querist) 07 May 2012
I am attaching the Revision petition drafted by me with this reply.
Please see and let me know solutions as soon as possible, as I have to file this Revision petition tomorrow itself in the morning.
Thanks
