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Manjunath   05 October 2021

Fir order by magistrate for cheating case,

Sir, I have a doubt.
A woman gives money via NEFT to her sister for purpose of her daughter education.
From her sister bank statement copy she came to know that she asked more than necessary amount and refuse to pay back.
She opts for FIR.
Acknowledgement from local police and SP is received.
Next step is magistrate.
Is independent witness really necessary for complaint u/s 420 ipc before magistrate to be effective in giving order for FIR?
Can the complainant's son and daughter stand as witness despite being interested witnesses?
Will the magistrate order FIR or criminal case u/s 200 CrPC?


Learning

 4 Replies

Rama chary Rachakonda (Secunderabad/Telangana state Highcourt practice watsapp no.9989324294 )     05 October 2021

son & duagher witness can be accepted by court. Independent witness is more effective.  Examination of complainant - A magistrate taking cognizance of an offence on complaint shall, examine upon oath the complainant and witnesses present, if any and the substance of such examination shall be reduced into writing and shall be signed by the complainant and witnesses and also by the magistrate.

Dr J C Vashista (Advocate)     05 October 2021

It is not necessary to get an independent witness deposed for taking cognizance of the complaint.

minakshi bindhani   05 October 2021

As per your concerned query!

Under section 154(3) of Cr.PC any person aggrieved by a refusal on the part of an officer in charge of a police station to record the information referred to in subsection (1) may send the substance of such information, in writing and by post, to the Superintendent of Police concerned who, if satisfied that such information discloses the commission of a cognizable offence, shall either investigate the case himself or direct an investigation to be made by any police officer subordinate to him, in the manner provided by this Code, and such officer shall have all the powers of an officer in charge of the police station about that offence.

As per your provided information, if the Superintendent of police lodged your FIR, you don't need to file a complaint under section 200 of Cr. PC before the magistrate.

Independent witness is required where no independent person agrees to become a witness, there is no reason to doubt the version of police and recoveries made pursuant to the disclosure statement of the accused. The need to examine independent witnesses in such a case is only a rule of caution evolved by the judiciary to prevent the misuse of provision of section 27 of the Evidence Act.

Hope it clarifies the issues!
Regards
Minakshi Bindhani

P. Venu (Advocate)     06 October 2021

Having lodged the FIR, it is for the Police to take further steps.  Being a cognizable offence, onus for producing the evidence is primarily with the police and the prosecutor.


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