copy application in 138 NI case.
s.loganathan
(Querist) 29 August 2010
This query is : Resolved
My wife and I were served summons u/s 138 of NI Act. I appeared and my wife's appearance was dispensed with u/s 205. After the second hearing, I was still not served the complaint copy and subsequently I made a copy application for the complaint, the cheque, pronote, partnership firm registration and also copy of order on 205 application. It was returned after 3 days as 'exhibits not marked, hence returned'. Rule 339 of the Criminal Rules of Practice clearly stipulates that "copies of any portion of a record of a criminal case must be furnished to the parties concerned ...." Is there a provision in law for them to return my CA on the above pretext? Is this act extra-judicial? Even the copy for order on 205 was not considered.
Devajyoti Barman
(Expert) 29 August 2010
The documents not formally proved is not the part of the record and hence its certified copy can not be obtained.
s.loganathan
(Querist) 30 August 2010
Thanks Mr. Devajyoti Barman! Pls read the following citation and tell me if your opinion still holds.
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 04/07/2006
Coram
THE HON'BLE MR.JUSTICE C. NAGAPPAN
Criminal Original Petition No.16006 of 2006
K.Ramaiah .. Petitioner
-Vs-
R.Sudhakara Naidu .. Respondent
Petition under Section 482 of Criminal Procedure Code for a direction as stated therein.
!For Petitioner : Ms.K.Santhakumari
^For Respondents: ...
:ORDER
The petitioner has sought for a direction to the Judicial Magistrate, Tiruttani, to receive the copy application filed by the counsel for the petitioner and furnish certified copies of the complaint and related documents in C.C.No.10 of 2005 within a time frame.
2. The petitioner is the accused in the case facing trial for the alleged offence under Section 138 of the Negotiable Instruments Act and according to him, his counsel presented a copy application on 05.04 .2006 seeking for certified copies of the complaint and related documents and the learned Magistrate refused to receive the application, which necessitated him to file this petition.
3. Considering the nature of the prayer sought for, there is no necessity to issue a notice to the respondent. Heard the learned counsel for the petitioner.
4. Rule 339 of the Criminal Rules of Practice provides for issuance of copies to parties and it stipulates that copies of any portion of the record of a criminal case must be furnished to the parties concerned on payment of the proper stamp and the authorised fee for copying.
5. Pratap Singh J., in the decision in Subramanian vs. State through the Vigilance and Anticorruption, Cuddalore (1994-2-L.W. (Crl) 77 3(1), held that docket entry is also portion of record of a criminal case and it has to be furnished to a party on payment of proper stamp and authorised fee for copying.
6. M.Karpagavinayagam, J., in the decision in Ramesh vs. A. Ramanujan (1998 (1) L.W (Crl) 1), held that the accused is entitled to the copy of the complaint the moment he received the summons.
7. Following the above decision, B.Akbar Basha Khadiri, J., in the decision in V.G.K.Murthy vs. Vikas Plastic Electro Chemical Pvt. Ltd. (2001 (1) CTC 24), observed that copies of any portion of the record must be furnished to the accused as provided under Rule 339 of the Criminal Rules of Practice.
8. The Trial Court cannot refuse to receive the copy application and it is bound to follow Rule 339 in so far as copies to be given to the parties are concerned.
9. It is open to the petitioner to present the copy application before the Trial Court within two weeks from today and on its being so presented, the Trial Court is directed to receive the same and adhere to Rule 339 of the Criminal Rules of Practice. This petition is ordered accordingly.
s.subramanian
(Expert) 30 August 2010
I difer from Mr.Barman. In civil cases he is right. But in criminal cases,the accused has a right to get copies of the docuemtns even before they are marked ion court.Yes. You can get the copies as a matter of right.
s.loganathan
(Querist) 30 August 2010
Thankyou Mr.Subramanian!!! I will resubmit my application today with a copy of the abovementioned citation.
Vinod Singh Tomar
(Expert) 30 August 2010
In criminal cases, accused has every right to get the copies of relevant documents like copy of complaint and other documents for his defence purpose and such a right can not be curtailed.
DEFENSE ADVOCATE.-firmaction@g
(Expert) 31 August 2010
In criminal cases it is mandatory for the complainant to give all the copies to the accused without cost.
Here there is small confusion, if the accused wants certified copies from court than it will not be given for the papers which are not marked since being xerox copies.
But it is mandatory on the part of the complainant to give copies of the complaint and all the documents attached to it.
We as a rule ask for not only copies but facesimilies that is exact replica of all the documents and we get it., otherwise case can not proceed.
s.loganathan
(Querist) 01 September 2010
The resubmission of copy application with the abovementioned citation has again been remarked by the Magistrate as 'argue the matter in open court' and again denied me copies of the requested documents. So much for 'speedy and fair trial' and 'fundamental right under the constitution'. Even the court copy does not carry xerox copies of the listed documents in the complaint, and that is what prompted the application for copies. It certainly casts doubt over my opportunity to a fair and unbiased trial. Whereas, at the behest of the opposition the Magistrate prepone hearing at very short dates. Thats his inherent power, but does this not seem extra-judicial?
s.loganathan
(Querist) 08 September 2010
It seems that whenever it comes to commenting anythings that touches the judiciary, we seem to be short of 'experts'. Come on Gentlemen! Lets extend some 'Generosity' and exercise the scope of 'Freedom of Expression'.
