Fraud
SANJEEV JAIN
(Querist) 03 October 2014
This query is : Resolved
In a civil suit filed by 'A' (plaintiff), 'B' (defendant) declares his age as 40 years in his AFFIDAVIT, whereas in other criminal complaint u/s 138 of N.I.Act filed by A against B, AFTER SEVEN YEARS of B's Affidavit, his advocate 'C' appeals to the court to dismiss the criminal complaint by default and writes about ACCUSED 'B' as a senior citizen of 77 years old, and the court dismisses the complaint on that application.
Is there a fraud or criminal offence committed in this scenario ? Against whom and under which sections the case/es can be lodged ?
Anirudh
(Expert) 03 October 2014
Please indicate whether the 138 complaint has been dismissed just because the accused is 77 years? or for any other reason?
Rajendra K Goyal
(Expert) 03 October 2014
Consult a local lawyer and show him full case file. Grounds of dismissal need to be referred.
Dr J C Vashista
(Expert) 04 October 2014
Consult local lawyer with case file.
SANJEEV JAIN
(Querist) 04 October 2014
Respected sirs,
The 138 complaint was dismissed on accused's advocate's following application in 2012 :
"The complainant died 3 years back, whose Death certificate's true copy has been submitted by his advocate to this court. Thereafter no legal heir
has come forward to pursue the case. And accused is a senior citizen (77 yrs old), lives in Bangalore. Just to harass my client the complaint has been filed against him. Therefore, prayed to dismiss the case for default".
After dismissal of complaint in 2012, it has been restored by Hon'ble Gujarat High Court's order on appeal by A's legal heir - D (son).
My question is :
Whether any fraud or criminal offence under INDIAN PENAL CODE been committed or not ? Against whom and under which sections the case/cases can be filed ?
(because accused has given affidavit (2005) in previous civil case for his age as 40 years through other advocate, whereas after 7 years in 2012 his advocate in cr. complaint writes about him as a senior citizen of 77 year).
THANKS To ALL LEARNED ADVOCATES.
T. Kalaiselvan, Advocate
(Expert) 08 October 2014
This is a matter to be brought out during trial. However, this will not be the subject matter for trial of 138 case. Earlier the case was dismissed as there were no representations from complainant's side due his death, so better concentrate on the main case instead of taking a deviated route.
Raj Kumar Makkad
(Expert) 08 October 2014
The complaint was not dismissed on the ground of age rather because the legal heirs had not persuade the complaint after the death of the complainant, however, the age has definitely been enhanced to 77 years rather of 47 years if the original affidavit in civil suit is believed to be true.
A sympathy was gained by applicant/accused by showing himself as a senior citizen hence an offence punishable under section 193 IPC is definitely made out which requires criminal complaint under section 340 read with section 195 of Criminal Procedure Code to be filed in the same court.
SANJEEV JAIN
(Querist) 09 October 2014
Makkad sir, THANKS A LOT.
