Accused not given chance to cross examine the complainant

Fidelity Legal Services (Querist) 04 June 2012 This query is : Resolved
Dear Experts,
I have a pending sec 138 complaint against me ,wherein the complainant has been filed by the complainant herself, but after filing, the rest of proceedings are carried out by her power of attorney holder who has given the chief examination on behalf of the complainant under this POA. The complainant has not appeared in the box once nor offered herself for cross examination

Please advise, with this facts, i feel that since the filed case is absolutely false and vicious, i can prove it if the complainant herself, and not her POA holder gives me an opportunity to cross examine her

Also would be grateful, if you would advise as to what remedies are available to accused in the above narrated circumstances, can the accused compel the original complainant to offer herself for cross or it is in accused' favour not to do so and is any prejudices caused to the accused if the complainant does not offer herself , and not her POA holder to cross examine.
I shall be very grateful for your advice. Thanks

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ajay sethi (Expert) 04 June 2012
evidence of complainant is necessary to prove her case the complainant only has personal knowledeg of the transaction .

if she does not lead any evidence nor offers hesrself for cross she may lose the case

ajay sethi (Expert) 04 June 2012
Supreme Court in Janki Vashdeo Bhojwani and Another vs. Indusind Bank Ltd. and Ors., (2005) 2 SCC 217, it is submitted that the POA holder cannot be expected to depose on behalf of the complainant by way of an affidavit of examination- in-chief since the facts were within the personal knowledge of the complainant. The POA holder cannot be expected to be cross-examined in respect of facts known only to the complainant

Fidelity Legal Services (Querist) 04 June 2012
thanks for reply, in that case, what should be done, that matter is at the accused's arguments stage and should it be proper to recall the complainant herself for cross ?

ajay sethi (Expert) 04 June 2012
your lawyer is best judge . if complainant has not given evidence it strengthens your case

Fidelity Legal Services (Querist) 04 June 2012
Dear Mr. Ajay, thanks very much , got the judgement thanks a lot

V R SHROFF (Expert) 04 June 2012
POA can depose , if CA knows the facts of the case personally.
Apex Court already ruled, POA cannot depose.

In your case, you can cross examine POA, to get benefit of CA not haviong any personal knowlege, and deposition is a mere hearsay. Get it in Evidence.
thereafter, allow the Prosecution to close Evidence on their side.

After that , Point out all loopholes, in your 313 statement.
if necessary to do so, examine yourself as DW1.

During argument, submit that POA cannot depose, and that deposition, and Evidence be struct off.

[ pts to be recorded: [1] chq not signed in pr of POA [2] Not seen signing Lega Notice, nor read before sending it, or it's correctness [3] Correct and true address not known to POA. [4] POA dis not pay or adv or transaction with u [5] u hv no liability towards POA. [6] any other points u know better.

it becomes very easy WIN for u.