N.i.a. 138 , recalling of complainant for cross examination crpc 311
Querist :
Anonymous
(Querist) 05 December 2011
This query is : Resolved
Dissolution of partnership and 138 N.I.A
Partnership dipute, retiring partner coerced and got frivolous cheques from the retaining partner. The cheques legally not of enforceable debt. Dozen complaints filed under section 138 NIA .
1. Complainant filed his chief by way of affidavit and despite the list of various witnesses he withheld did not produce any witness.
2. Various adjournments were granted in expectation of possible compromise.
3. Subsequently cross examination of complainant started. Before starting the cross examination, trial court magistrate suggested to conduct cross examination in one case and copy the same in remaining all the cases.
4. Cross examination extended beyond the court time and was deferred.
5. Court gave various adornments, and the jiminy orders were written as cross examination but actually court staff was busy copying the cross examination of the complainant. This kept on happening for 5 months.
6. During this time the complainant kept on closing his evidence one by one in all the cases.
7. After 5 months left over cross examination was conducted. And the coping procedure carried on for 4-5 months during this time again adjournments were being granted the jiminy orders read adjournment for statement of accused and DW’s.
8. 20 days after the left over cross examination complainant closed his evidence in last one case and tendered two vital documents exhibits (balance sheets) by misguiding the court and the accused.
9. Accused statement under crpc 313 were also being copied in each of the case and by chance in accused came to know of those two vital exhibits in the last case.
10. Meanwhile list of dw’s was submitted in all cases and 6 witnesses were summons were issued only in one case.
11. Application for recalling complainant under CRPC 311 filed in all the cases with a request to adopt the ongoing procedure and copy the same cross examination on these two viral documents to all other cases.
12. Instead of considering the CRPC 311 application court said first go ahead with the DW’s. In the meantime I will hear the arguments on the application. Meanwhile three of them were examined. These were again copied in all cases.
13. Magistrate was transferred.
14. After two months new magistrate heard the arguments in the application under CRPC 311.
15. Complainant refused in court that he has never consented for the copying procedure.
16. Application was allowed in the last case in which the two exhibits were tendered by the accused. And the similar applications in all other cases were dismissed citing “that procedure of copying is unheard in law”.
17. In revision of these orders the accused approached High court where the application was withdrawn with directions of the high court stating as “Tender the certified of copies of these two documents in all cases and again move the application under section crpc 311”.
18. The accused did as above and the applications were filed in all but case, which were again dismissed citing reasons:—
1. That the re-cross examination has already been allowed in one case where the complainant filed the vital exhibits..
2. No such documents were filed by the complainant in remaining cases.
3. There is not order for connecting the said cases on the court file.
4. Process of recording the evidence in one case and copy the same in another unconnected case is unknown to law.
5. There is no law which can compel the complainant to produce those documents in all the cases.
6. The conduct of accused shows that the purpose of filing this application is just to delay the proceedings and has already taken 20 opportunities.
MY CONTENTIONS:—
1. I HAVE NOT SEEKED ANY ADJORNMENT AND NOT ANY APLICATION FOR EXEPMTION FROM APPEARANCE WAS EVER FILED. IF MY PURPOSE WAS TO DELAY THE PROCEDDING I COULD HAVE OBJECTED TO THE COPYING AND HAD LET THE EVIDENCE ALL THE CASES ONE BY ONE. ALLOWING OF COPYING SHOWS MY CONDUCT AND COOPERATION WITH THE COURT.
2. TILL WHEN COPYING WAS HELPTING THE COMPLAINANT HE LET IT HAPPEN AND WHEN IT GOING AGAINST HE STARTED REFUSING THE COPYING PROCUDURE.
3. THE DOCUMENTS ARE ACTUALLY STATEMENT OF ACCOUNTS WHICH CAN PROVE WHETHER THE DEBT WAS ENFORCABLE OR NOT AND WERE THE CHEQUES ARE IN DISPOSAL OF LEGAL LIABLITY ?
PLEASE GUIDE AND HELP ME.
THANKS TO ALL OF YOU READING AND HELPING ME OUT.
ajay sethi
(Expert) 05 December 2011
it appears that complainant has produced additional documents which were not mentioned in the compilation of documents filed by complainant .
if complainant has to produce additional documents namely balance sheet etc he ought to have made application to court that he wants to produce additional documents and after court grants permission the documents are taken on record .
you are enttiled to cross examine the complainant on said documents
since re crosss examination is allowed by court in case wherein these documents are on record you cannot have any grievnace on same .
if you are aggrived by said order you can go in revision .
bhushan singh charan
(Expert) 05 December 2011
application u/s91crpc forsummonig the documents can bemoved. orrelyingupon theorderpassedon applicationfor refusingbythe magistrate onground thatcpeying of evidance statement is notknown to law application for excluision of evidence which was copeying may be filed.further judgment regarding no evedantry nalue ofcopeying evidence can also submitted.INMY OPINION IF EVIDENCE OF COMPLAINENT NOT READ THANNO CASE CAN BE PROVED AGAINST U.
V R SHROFF
(Expert) 05 December 2011
IN THE HIGH COURT OF JUDIATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO.1659 OF 2005
1. Peacock Industries Ltd.
GO THRU,
DOC FILED AT LATER STAGE BE OBJECTED, AS IT IS TO FILL THE LACUNA IN PROCEEDINGS
Shonee Kapoor
(Expert) 06 December 2011
Agreed with Ld. Mr. Makkad.
Regards,
Shonee Kapoor
harassed.by.498a@gmail.com
Querist :
Anonymous
(Querist) 06 December 2011
I would like to add to the query that the order dimissing our all second applications under CRPC 311 had a wrong date. This error has been copied to all the cases and jiminy orders. thereby proving our point that the proceeding are being copied to all the cases from the begining.
Querist :
Anonymous
(Querist) 06 December 2011
This issue is very complicated. I request all the cousels to read each and every word carefully and give me my future line of action in this case.I am immensely thankfull to all mr. ajay sethi, Mr. Bhushan Singh Charan, Mr. V.r. Shroff and Mr. Shonee Kapoor for reading the query and advising me. I am indebted to all of you who have read and contributed in this query.
