138 NI Act-Contempt?Perjury? in Court!!!!
s.loganathan
(Querist) 22 August 2010
This query is : Resolved
Haunted by episodes taken place more than 3 years ago. A nasty experience with an incorrigible banker whose conspiracy of yesteryear is being revisited as nightmares of today.
I received a legal notice for dishonor of cheque drawn on my account. I send a reply notice disputing the issue of cheque to the complainant and put them on notice that action will be taken against their misadventure. I lodge a police complaint against the complainant and the former bank manager( to whom I had at that time given the cheques for the loan arranged by him at the bank ) and also the bank. That episodes took place 3 years ago. When the police station did not take any action, I complained to the Commissioner of Police. Soon after, I made a newspaper publication through my lawyer exposing the criminal misadventure and the police complaint and warned punitive action against, in the event of, any other cheques in this nature cropping up. My account with that bank had been dormant for more than 3 years, after the scandal perpetrated by the manager then. At that time I had made numerous complaints to the management of the bank and as a result the manager was transfered abruptly. When there was no steps taken by the Commissioner, I made a private complaint u/s 156 and was ordered accordingly for the police to investigate and register a case, and report within a month. Its been more than a month and there is still no action.I have been served summons by the JM Court for having taken cognizance of a complaint u/s 138 of NI Act. My wife (an ailing heart patient having undergone several surgeries) has been also served with a summon to appear when she is not a signatory to the purported cheque. The account is a joint-account but it is not a company or firm to attract section 141. I have seen many judicial writtings that forbids exercising provisions of 138 on non-signatory. On the day of summons, I attend and for my wife, her lawyers forward a dispense petition u/s 205 alongwith her vast medical records & 317. The magistrate practically threw the 205 application back to my lawyer and refused to hand my complaint copy and insisted that my wife should be present & reposted appearance to 3 days later. My lawyer advised that we move the High Court u/s 482 for dispense and quash for my wife as there were numerous precedents by higher courts for the same. The next day, my lawyer asked my wife to sign High Court vakalats (though memo of appearance filed by advocate is enough). This made my wife anxious and discomfortable. We had got the Cr. OP numbered & listed for the same date as summons appearance. My wife's BP raised alarmingly and had been taken to her cardiologist whom after examination admitted her into the CCU immediately. After two days during the appearance in court, I had been present and my wife's presence was requested to be dispensed with again u/s 205 and 317. Even as my lawyer was handing over the applications the magistrate retorted shaking his head and voicing that he is going to dismiss the 205 application. Simultaneously, my law was crying out that she is admitted in CCU and the hospital certificate is produced. Within the blink of the eye, the complainants counsel defied in open court that he himself had seen my wife in public(heavenly impossible). My advocate instantly made an outcry that the counsel should be moved for perjury for making such an outrages claim. Surprisingly, the magistrate shouted at my lawyer, "..brother, I cannot dance to your whims and fancies" and passed over the proceeding. I am ordered by the court to go wait outside. While waiting outside the court hall, I could see all the lawyers talking among themselves and soon after they step out onto the corridor opposite to where I am standing and have further talks. Thereafter, my lawyer comes to me and tells me that the other parties are going to plead no-objection to the 205 application. I'm surprised and utterly shocked at my lawyers statement, who immediately walked back into the courthall. I immediately sent a sms to my lawyer, telling him to leave the 205 application to the magistrate's prerogative and pursue the charge of perjury and contempt against the counsel of the complainant and the complainant himself under vicarious liability. We had already fastened fraud and forgery on the complainant viz-a-viz our legal notice and police complaint and private complaint in court. Further, we had already made application in High Court to quash the proceedings against my wife by the failed appreciation by the magistrate when taking cognizance against my wife. More alarming is the fact that, at the first appearance the magistrate whilst throwing back the 205 application told my lawyer that "if his wife does not want to come to court, then ask him to approach the complainant and settle the amounts". After the blatant lie made in open court exposed the criminal conspiracy orchestrated by the complainant and his nefarious lawyer, I was again called into court,(only to find my lawyer and the opposite counsel missing except their juniors) and this time the magistrate without making any hue and cry allowed the 205 application. He called me to the front and again told me that "why don't you settle the matter with the complainant, when your wife is a sick person and she need not be troubled". That is all that he spoke and he did not even ask me whether I plead guilty or not guilty, lest pronounce the charges. I feel that I am being subjected to pressure by reason of the unilateral comment by the magistrate,and the 'overtures' by the magistrate to "settle the amount with the complainant" and that pressure is of a kind that raises a serious prospect that I will be denied justice by means of a fair trial. When contempt of court had been committed (perhaps even perjury), it is unbelievable that this court has remained a mute spectator without taking any action against the perpetrator. Also alarming is that the opposite counsel, a judicial officer in his order, is capable of resorting to unethical conduct in as much that he actually interfered with the administration and due course of fair justice.
It appears my lawyer is reluctant to pursue the contempt/perjury angle as it would be an onslaught onto his fraternity.It also casts aspersions on the ability of my counsel to discharge his duties loyally and properly, I guess thats all for duty of care.
Should I file a complaint? If so, Which forum to approach? Will human rights help? Should I move to get my case transfered? If so what is the procedure? Pls help!
s.subramanian
(Expert) 22 August 2010
You insist your lawyer to proceed with the perjury complaint. It is better that you seek a transfer of the case to some other court. Otherwise you will coerced into a compromise as things suggest.
s.loganathan
(Querist) 22 August 2010
Thank you Mr.S.Subramaniam! That is exactly my contention. When I raised the issue of contempt/perjury with my lawyer, as to why he suddenly absented himself and failed to pursue my right to moving the court for perjury against the complainant and counsel, he said that he did what was right in my interest. And he immediately adds, "don't worry about this, afterall we got the 205 application allowed. That's how criminal court works" And he further goes to add that "look that counsel are long time practitioners in this court, and the father-son duo practically appear for every other 138 cases being filed in this court, I hope you understand the rapo and relationship they would share before this court". And further states that the magistrate can at anytime withdraw the dispense order. At that instance, I felt that it was an attempt to cow down my intent to continue with invoking perjury and contempt of court complaints. Is this right? Infact, would this not be all the more reason to have this case transfered to another court? It will certainly establish that a premeditated criminal conspiracy exists, and will expose that the complaint u/s 138 itself was filed with some sinister or ulterior motive. Is it not malicious prosecution to harass and embarass an innocent person? Should not the guilty be punished while the events are still fresh in the public minds, and the innocent be absolved as early as is consistent with a fair and impartial trial?
DEFENSE ADVOCATE.-firmaction@g
(Expert) 22 August 2010
You have so long details and if it is actual case pl give details of court , parties and place., we will give you proper solution.
Guest
(Expert) 22 August 2010
NANDKUMAR B.SAWANT.M.COM.LL.B.(MUMBAI)ADVOCATE
MOBILE.9271971251,9960223100
e.mail.adv.nbsawant@yahoo.co.in
e.mail.nandkumarbs@sify.com
REGARDING YOUR MATTER KINDLY NOTE THAT.
1.IT IS THE FACT THAT SEC.138 N.I.ACT CASE IS PENDING AGAINST YOU.IT IS ADVISIBLE TO STRONGLY DEFEND THE SAME.YOU MAY EVEN FILE A WRIT PETITION TO THE HIGH COURT FOR QUASHING FALSE CASE AGAINST YOU ON VARIOUS GROUNDS .
2.AS FAR AS YOUR COMPLAINTS ARE CONCERNED ,KINDLY NOTE THAT YOU HAVE TO PROVE ALL FACTS OF THE CRIMINAL COMPLAINT ON THE BASIS OF DOCUMENTARY EVIDENCE AND ALSO STATEMENTS OF WITNESSES.YOU MAY FILE PRIVATE COMPLAINT IN THE COURT.
KIDLY NOTE THAT YOU SHOULD CONCENTRATE IN DEFENDING YOUR COURT MATTERS INSTEAD OF FILING CASES AGAINST THE PERSONS WHO DEFENDED YOUR CASE.YOU SHOULD DISCUSS AND SORT OUT THE DIFFERENCES IF ANY.
ONCE YOU ARE ACQUITED FROM THE CASE THEN YOU MAY FILE CASE AGAINST THE ACCUSED ON THE BASIS OF JUDGEMENT.PLEASE NOTE.
GOOD LUCK.
s.loganathan
(Querist) 22 August 2010
Certainly Mr.Shashikumar.
Complaint u/s 138 NI Act has been filed before the Hon'ble Judicial Magistrate Court, Tiruchirappalli, Tamilnadu.
1. CC 28/2010 is filed by SSFinance rep. by it's partner KSR
2. CC29/2010 is filed by SGFinance rep. by it's partner KSR.
From the reading of the notice, the case in 28/2010 is a time barred debt under the laws of limitation. On case 29/2010, limitation only expires within another 2 months. Both the purported cheques apparently does not carry the signature of my wife as mentioned in the notices. Only complaint copy has been received, and I am yet to apply for copies of list of documents attached. I had categorically stated in my reply notice, police complaint & private complaint u/s 156 that no cheque was issued to the said KSR or his firms.
And Thanks, Mr. Nandakumar B. Sawant, but to clear any misconception, I am not complaining to proceed against my lawyer(far from my thought), only seeking to act upon the perpetrators who are infringing upon my fundamental rights under article 21 of the constitution. I will appreciate the guidance as to the avenues that I can explore, and in which forums and procedures to be followed. Afterall, it happened in proceedings before the Hon'ble Magistrate in open Court. Pls suggest how do I prove all these facts on the basis of documentary evidence and also who do I produce as witnesses?
