Frivolous or Malicious litigation

Querist : Anonymous (Querist) 02 November 2009 This query is : Resolved
Dear Sir,

We are a small firm providing consulting services based at Mumbai. I landed up in a dispute with one of our customers when she wanted to terminate the contract with us (as she got a cheaper alternative) in the midway of the services being imparted and wanted the advance money back. The customer filed a police complaint against me based on baseless allegation to make it look like a case of cheating (Prima-Facie). An FIR was registered under section 420 leading to my arrest in 2006. I got bail soon. The charge sheet has also been filed.

Presently the case is under trial in Metropolitan Magistrate Court for more than two years. My problem is that the complainant is not coming on the dates despite summon being served and serviced. As the allegations against me are baseless, she cannot prove the same in the court and that’s why she is not coming. I have been regularly going to the court on all dates hoping that she may come. I just get a new and long date every time, that’s all.

1. I was advised by an advocate to file an application under section 256(1) of the Code of Criminal Procedure. Does it apply cases under section 420?
2. I want to know that whether there is any provision in the law against such frivolous or malicious litigations?
3. Is there a way that can bring this complainant to the court?
4. Whether there is any possibility to get discharge from this case keeping in view that the charge-sheet has been filed?
5. Can you please advise me with a practical solution/ roadmap for a faster relief and justice?

Request: Kindly treat this as confidential.

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Raj Kumar Makkad (Expert) 02 November 2009
The application under section 256 (1) is very much entertainable in your case. In case complaiant is not appearing in the court for his evidence then his evidence shall be closed by the court after waiting for two or three hearings so dont afraid. No doubt, you are being harassed for no fault but this is process of Indian courts and no other way is available. Once your case is dcided in your favour then you can file a petition for filing a false and malicious litigation against you.

Kiran Kumar (Expert) 02 November 2009
Mr. Makkad adviced correctly.

its really a sorry state of affairs for u if u r being prosecuted frivously.

make an application under S.256 first so that u can be acquitted and do teach lesson to the complainant if you have been prosecuted falsely.

it may take some time in courts but such kind of people must be taught lesson.

since u ve not disclosed ur identity, so it all will remain confidential for rest of the world :-)

PALNITKAR V.V. (Expert) 02 November 2009
With due respect, I am of the opinion that Sec. 256 is not applicable in this case since the case is not a complaint case but it is a case filed on police report u/s 173 of Cr.P.C. wherein the complainant is State and not an individual although FIR is filed by private individual.

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