EVIDENCE U/S 138/145 OF NEGOTIABLE INSTRUMENT ACT
Querist :
Anonymous
(Querist) 10 July 2011
This query is : Resolved
I have filed different complaints ( at Delhi) against different cheques in favour of my FOUR family members and filed as special power of attorney of complainant having personal knowledge of transaction being father/husband and filed only my affidavit in pre summoning evidence. All the complaints are distributed by the Ld. ACMM in different courts and all the courts have taken cognizance of offence on alonge my (SPA) Affidavit/evidence. On appearance of accused persons separately ( husband and wife in different complaints filed by me) have filed application u/s 145(2) with general and vague defence to call COMPLAINANT INSTEAD OF SPA, whose affidavit of record and courts are allowing their applications and directed me to file actual complainant affidavit and to produce him for cross examination instead of mine (SPA) on whose affidavit the cognizance was taken.
I have queries whether it is compulsory to give evidence of Complainant on the application of the accused filed u/s 145(2), whereas there was no affidavit of complainant on record till the application filed u/s 145(2) and the cognizance taken on the affidavit of father/husband as SPA.
Further I want to know if I contest the application of the accused and not give the evidence of actual complainant then what shall be the fate of my complaint.
Can the accused will success to bring all complaints in one court of M.M. on application to the ACMM to send all complaints to one M.M., whereas there are different complainant of one family and two different accused (husband/wife).
Thanking You,
DEFENSE ADVOCATE.-firmaction@g
(Expert) 10 July 2011
SPA has no locus standi in criminal cases, if the defense advocate is smart all your complaints are liable to be dismissed.
There is no need even to call the original person now since criminal complaints can not be amended.
Querist :
Anonymous
(Querist) 10 July 2011
Thanks a lot for your reply, but asper my knowledge all apex courts including S.C. allowed 138 N.I. Act complaints to be prosecuted/present through SPA, as these are only document based complaints for commercial transactions.
Ravikant Soni
(Expert) 10 July 2011
plz provide such judgements to us. thanks in advance.
Querist :
Anonymous
(Querist) 10 July 2011
Mr. Ravikant ji please check these:-
2008(3) Civil Court Cases 586 (S.C.) : 2008(3) Criminal Court Cases 975 (S.C.) : 2008(3) Apex Court Judgments 003 (S.C.)
AND
2010(1) Civil Court Cases 052 (Delhi)
AND
(Ranjit Ray & Anr. Vs Pukaraj Jain) 1996(2) CIVIL COURT CASES 572 (Orissa) : 1997 (2) ALL INDIA CRIMINAL LR (ORISSA) 0570 : 1998 (2) CIVIL LJ 0080 : 1997 (1) CRIMES 0110 : 1997 (1) CCR 0475 : 1996 (2) OCR 0360 : 1996 CULT 0528 : 1996 (2) OLR 0412
AND
(Abdul Rahim Vs Amal Kumar) 1994(2) CIVIL COURT CASES 60 (Cal.) : 1994 ISJ (BANKING) 0368
AND
(Ashalatha Vs State of Kerala) 2008(1) Civil Court Cases 223 (Kerala) : 2008(1) Criminal Court Cases 274 (Kerala)
sumant singh
(Expert) 14 July 2011
i have different view then all of you.
First of all it is not neccessary to you i.e. the complainant to file affidavit in evidence personally, the SPA will serve the purpose.
There will be some problem for the case if you file another affidavit in evidence. The defence lawyer seems to be very smart. If you file another affidavit for the same purpose, there will be a chance of some contradiction or omission specially during cross examination which may cost you the case.
I don't thing court wiil force you to file another affidavit, please don't do that.
It is not necessary at all.
The answer of your last question. The court can try all your cases in one court only if the same relates to one transaction, otherwise not.
Yours Faithfully
Sumant Singh,
Advocate,
M-9864257409.
Querist :
Anonymous
(Querist) 21 July 2011
Sumant Singh ji, thanks a lot for your guidance.
DEFENSE ADVOCATE.-firmaction@g
(Expert) 21 July 2011
All the citations above have been overruled by SC.
THE LAW IS NOTHING BUT COMMON SENSE WORDED IN WORDS.
Even suppose no citations are there , a power of attorney holder can depose , give affidavit for acts done by him after grant of POA and not otherwise. Even if after grant of POA the donee can not depose for the acts done by the Principal.
Suppose some body has broken an arm of the principal than can POA depose acting as principal that his arm is broken.
Criminal acts are against the person and hence in criminal trials no POA is allowed.
DEFENSE ADVOCATE.-firmaction@g
(Expert) 21 July 2011
I have to further add on the original querry that if different complaints are filed against same person it is the direction of the SC that the same must be brought before one court and heavy penalty should be imposed on the complainant.
Querist :
Anonymous
(Querist) 23 July 2011
I am not agree with Your Advocate reply. As the Hon'ble Supreme Court allowed the attorney holder to file complaint and to give evidence, if has personal knowledge and there is no need of complainant to depose instead of attorney holder, if he did not deals personally, your reply is not suitable for the present quarry.
Secondly the Hon'ble Supreme Court given guidelines to disclose and file all complaints in one court if they are arised out of the same (one) transacation only against a single accused, but here is not this case.
DEFENSE ADVOCATE.-firmaction@g
(Expert) 23 July 2011
If you are contradicting some body you should give the actual rulings only you do not agree has no relevance.
