Attestted affidavit without signature of deponent
Querist :
Anonymous
(Querist) 27 September 2011
This query is : Resolved
In a case u/s 138 of N.I. Act, the accused and his counsel filed an application alongwith attested affidavit, which are without signature of accused/deponent. However the counsel of the accused identified the signature and the oath commissioner attestted the affidavit. The court has given opportunity to cross examine the complainant on such application and affidavit. After partly cross examination, the complainant found the above said facts.
Now, the complainant wants to prosecute the accused, the counsel of the accused who identified the signature of the accused, whereas there is no signature of accused and the oath commissioner, who attestted the affidavit. Now what to do kindly advice with citations/judgments and section of ipc/cr.p.c.
Thanks in advance.
ajay sethi
(Expert) 27 September 2011
affidavit is by way of examination in chief of accused. if accused has not signed affidavit , you should point it out to court . such an affidavit would be disregarded by court .
why you want to prosecute the counsel of accused . point facts to the court let court decide
Guest
(Expert) 27 September 2011
Agree with Shri Ajay Sethi.
Shailesh Kr. Shah
(Expert) 27 September 2011
It is settled law that No value of paper, if it is not duly signed by whom, on which to be signed.
Arun Kumar Bhagat
(Expert) 27 September 2011
The unsigned affidavit and subsequent cross-examination becomes nonest in law.
prabhakar singh
(Expert) 27 September 2011
The affidavit is no affidavit in eye of law.
a document without signature or mark of the person making it is of no value.you should have ignored the cross,now you need to bring it to the notice of the court for its'rejection.
you can not prosecute any of them.you can simply make a complaint before district judge against the oath commissioner and another complaint before state bar council against the advocate,but that is altogather a separate thing.
Querist :
Anonymous
(Querist) 28 September 2011
Thanks, all of you for advice.
I have already filed an application/petition before the concerned court with prayer to cancel the application filed by the accused u/s 145(2) and to put the case for defence evidence due to no application/affidavit on record in the eyes of law/as without sign.
But the court passed order that this court is not empowered to recall its earlier order, hence application is dismissed.
Kindly suggest me the options.
Thanking You,
Guest
(Expert) 28 September 2011
You would have failed to point out the deficiency in time well before the court could pass the order. In fact such things are to be seen carefully at the very initials stage of the trial.
