I have already stated somewhere else that Lower Courts, with due respect to the magistrates, have a solid amount of incompetence around.. But the defense should ensure that all the valid points, technical or otherwise are on record, for future reference at appellate stage, if required.
The visible goof ups by lower court:
1. The case is not tried out in summary trial form, despite the act saying so. There is now written order also for converting into regular case.
2. Courts do not even check the complaint as per S.138.
3. Competence of complainant is not at all verified.
4. Courts feel that even after affidavit of complainant his examination in chief is mandatory infront of accused.
5. Courts even accept summoning of Banks by complainant, although not required, if not agitated by accused.
6. Courts allow any body, practically anybody from the company (in case complainant is company) side to be complainant and even accept his affidavit..., Hearsay
7. Courts feel that affidavit of complainant (in case of company) is the affidavit of company only, while affidavit is always natural person specific.... Hearsay
8. Courts feel that proprietorship firm is the company and allow complaint by any employee of even proprietorship firm.... Absolute Hearsay.
9. Courts permit substitution even if first complainant is alive, and even if he is the sole witness in the list... Hearsay
10. Court does not distinguish between holder and possessor, while holder is clearly defined in the act.
11. Courts do not appreciate evidence given by accused regarding drawing of the cheque.
12. Courts feel complainant has the absolute right to fill up the blank cheque.
13. Courts do not understand the difference between SPA / Authority letter and GPA to the extent that a person who has been given GPA after the date (period) of transaction has no evidentiary relevance as per Supreme Court order.
14. And despite Supreme Court ruling that onus on accused is not so high to prove his innocence, courts convict.
Infact few courts feel that bounced cheque and conviction are synonyms.. Wow !! Thats the competence of our lower courts.
--- Not all the trial courts do above, but at any given time you can always find the same goof ups again and again.
All these are stated not to offend the honorabel courts, this is with due respect to our judiciary, but then it is the fact, probably courts are over worked and overloaded and do not have time to read honorabel Apex / High Courts orders.
If a team of legal experts spend a week together and gist out the honorabel Apex Court orders on NI Act, then suitable guidelines can be framed and more than 50% (can be as high as 70%) cases will be out of system. Dishonesty is more from the complainant side in cheque bounce cases than accused side. The complainant approach is "I will teach you a lesson".
Incidentally cheque bounce and DV acts have flooded our system and both are patently misused.
