Evidence
Umesh
(Querist) 22 November 2013
This query is : Resolved
Dear Experts,
The bank filed a complaint under section 138 of N.I. Act and the branch manager who signed the complaint and gave presummoning evidence has retired. Now in after notice evidence can present manager depose or the manager who signed the complaint is must to come and depose? Kindly guide
Guest
(Expert) 22 November 2013
It is bank which had given the evidence and not the branch manager personally.Bank could authorize any one to represent not particularly the person who had retired.
Advocate Bhartesh goyal
(Expert) 22 November 2013
On behalf of bank new manager or any other officer of bank can be depose after proper authorisation of bank.
R Trivedi
(Expert) 22 November 2013
Although reasonably it should be as what is advised by the experts above, but recently there was a supreme court order, which stated that GPA holder (authority holder) must have witnessed the transactions, now obviously new manager would not have witnessed the transactions, in that case he has to state that he is deposing from the records of the Bank, then admissibility of his evidence in reference to Bankers Book Evidence Act may be granted by the Hon court.
Rajendra K Goyal
(Expert) 22 November 2013
Repeated query:
http://www.lawyersclubindia.com/experts/Complaint-case-435966.asp#.Uo87juKLq_I
santhosh.g.
(Expert) 22 November 2013
Bank is treated as a corporation or a company u/s 141 n.i.act,any official either a Power of attorney agent or a person appointed through a resolution can appear before the court and depose. if a person at the 1st instant transferred, to substitute the person on behalf have to file a petition to substitute the person instead of the person who was appeared
V R SHROFF
(Expert) 22 November 2013
138 ni is criminal procedure, and direct evidence is a must A person can be jailed for a year or two, being very serious matter.
Civil case, no jail, only monetary liability.So POA holder MUST HAVE PERSONAL KNOWLEDGE, OTHERWISE HE CANNOT DEPOSE.
T. Kalaiselvan, Advocate
(Expert) 22 November 2013
I agree with Trivedi and Santosh.g. The Bank is a corporate body and the transactions are transparent and online, so even the first manager will have to look into the records because it may not be he himself was involved with the transaction, his subordinates would have done on behalf of the bank, so the new manager is also going to do the same job as the previous one.
V R SHROFF
(Expert) 22 November 2013
GIVE CITATIONS TO PROVE , ANYONE CAN DEPOSE.....in criminal case.. any cr p c allow it??????......
R Trivedi
(Expert) 23 November 2013
This would have been very difficult for a private corporation or company covered under S.141.
But I feel due to Banker's Book Evidence Act, even though Bank is the party in this case, the probative value of deposition of new manager cannot be fully nullified.
The bigger question is : Affidavit is of deponent (natural person), in this case the original manager would have sworn on his name on behalf of Bank, would the new manager file a new affidavit or the old one will continue, what would be the fate of old affidavit ? What if there is material improvement in new affidavit ? What is the sanctity of two affidavits on behalf of an organisation ?
Such situations are always tricky and would have been greatly beneficial to accused if the original manager got transferred to new branch instead of retirement.
But at the end I think, court will admit the new manager evidence, subject to objections on improvisation, if any. But accused must put his objections on record.
Guest
(Expert) 23 November 2013
Only in the cases of bank loans recovery where the loan was sanctioned by the individual capacity of the branch manager court might insist for his presence even he had retired, where he would be a party in the case. where as in138 cases it is purely based on records and bank could depute any one.
ABDUL RAZIQUE
(Expert) 23 November 2013
I endorse advice of R Trivedi. Nothing more to add.
