138 of N. I. Act

Querist : Anonymous (Querist) 31 August 2010 This query is : Resolved
A complaint filed u/s. 138 against a co. and one of signatory director.

Accused director is permanently exempted by the court till the next order.

Accused directed to represent by his advocate.
The complainant filed his evidence.

As per the procedure of dist. Court, the affidavit of evidence is affirmed before the court officer before filing in the court.

Accused and his advocate continuously absent and avoid cross examine the complainant.

The magistrate record the verification of the complainant and then passed order of no cross. Complainant also closed their case as no further witness is necessary.

The matter was adjourned for the statement of accused u/s. 313.

On the next date the advocate appeared on behalf of accused and made an application to set aside the order of no cross. Court considered his application with minor cost. He undertook to pay on next date.
Next date some other advocate was present and file an application with certain objection under rules 5 of Chapter VII of the High Court manual against the affidavit of complainant. In the said application it is stated that….

a) No verification clause of director Is there in the said affidavit.

b) no residence address of complainant is mentioned. (in affd. It is mentioned that I ____ having address at … office address is mentioned. (Complainant is a company))

c) it is not clearly mentioned that which statements are made on his personal knowledge and which statements are on his belief or information.

And prayed that the said director may directed to comply with the provision of ch. VII of criminal manual of Hon’ble High Court.

I’ve to file reply and oppose the said application. Kindly help me plz.

I’ve certain points in reply. can these useful to me?

• On previous date the said advocate has made an application to set aside the order of no cross and oraly undertook that on next date hi would cross examine the complainant. Now he placed these application.

• Further all applications signed and filed by a junior advocate who are not on record. V.p. signed by an advocate (I’m not sure that the v.p. filed on behalf of adv. firm or individual)

• Weather any advocate have locus standie to appear in the matter or to signed and place any application in absent of accused and advocate on record?

Plz. Plz. Plz. Help me and guide me and also give me citation if any is available in my favour.

Thanks in advance.

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Guest (Expert) 31 August 2010
KINDLY NOTE THAT YOU MAY FILE AN OBJECTION TO THE APPEARENCE OF ADVOCATE WHO HAS NOT FILED OR SIGNED VAKALATNAMA SIGNED BY ACCUSED.
IN CASE YOU ARE NOT HAPPY WITH ORDER OF ANY LOWER COURT ,YOU MAY FILE REVISION AGAINST THE SAID ORDER IN SUPERIOR COURT.
YOU WILL SUCCEED.

adv. rajeev ( rajoo ) (Expert) 31 August 2010
I do agree with Nandkumar

Rajeev kulshreshtha (Expert) 31 August 2010
I also agree with Mr. Nandkumar and in addition to it i want to say that the affidavit is filed in form of examination in chief and if there is any deficiency in affidavit the accused can question it only in cross examination.

s.subramanian (Expert) 31 August 2010
I fully endorse the views of M/s Nandkumar and Rajeev.

Querist : Anonymous (Querist) 01 September 2010
Thank you very much Experts.

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