Ni act
AAK
(Querist) 06 February 2012
This query is : Resolved
Dear Experts need your help
Can a complaint u/s 138 NI act can be dismissed on the ground that complainant has not furnished proper address of the accused?
There is warrant against accused but the the police are not executing the warrant and returning the same with a report that address of the accused not known & accused does not reside in the said address.. now JMFC court insisting the complainant to get the proper address otherwise he will dismiss the case... As far as my knowledge i feel JMFC cannot dismiss the complaint at this stage but i dont have any authority to produce.. can it b dismissed? is there any citation
ajay sethi
(Expert) 06 February 2012
under Section 27 GC Act, the requirement is that the notice must be "properly" addressed. The word "properly" obviously envisages the notice being sent to the correct present address of the noticee. The complainant will not be able to demonstrate before the Court that it had "properly" addressed the noticee unless it is able to produce the proof of delivery in the form of a postal endorsement or certificate of the courier agency or an internet generated delivery report or some other proof of delivery.
the court is correct in its approach to get the proper address . was the legal notice served at the same address?
DEFENSE ADVOCATE.-firmaction@g
(Expert) 06 February 2012
It is a common law.
More ever if you do not know the correct address of the accused even without law how long the case will remain pending till INFINITY.
Deepak Nair
(Expert) 06 February 2012
The court can dismiss the complaint on the ground of non-service of summons/warrant due to lack of proper address.
You can request the court for a longer date so that you can find out the correct address and wereabouts of the accused.
You can pray for the leave of the court to keep the case in dormant file till the current address of the accused is produced.
AAK
(Querist) 06 February 2012
how can court dismiss the complaint when the warrant is issued.. is it not the duty casted upon police to arrest that person? It is not fault on the part of the complainant if accused flee away or presently if he does not reside in the given address..
what is the consequence if court dismissed complaint today and very next day accused returned to his address the next day..
what is the purpose of warrant.. is it not the duty of police to serch and arrest the accused.!!
AAK
(Querist) 06 February 2012
I am not emphasizing on any change of law. The law is already in existence of which I am speaking.
CRPC Sec.70 (2)- warrant shall remain in force until it is executed.
And there is a procedure for proclamation and attachment under CR.P.C if the accused is absconding.
AAK
(Querist) 06 February 2012
I will put my arguments on the same lines. but the conduct of the judge seems that he has already made his mind to dismiss it.. so i wanted some citations or any other specific provision in this regard.
Deepak Nair
(Expert) 06 February 2012
If the complaint is dismissed and you are not satisfied by the order, then you can approach the sessions court and restore the complaint.
R Trivedi
(Expert) 07 February 2012
1. First answer to which address you sent the notice and what proof do you have for receipt acknowledgement.
2. What is the clear picture ? You just do not know the address of accused or accused has gone away from that address ?
AAK
(Querist) 08 February 2012
The demand notice is duly served to him. thereafter i have filed complaint. summons were served to him. Accused did not choose to appear. Non Bailable warrant is issued against him..
presently whereabout of the accused not known to complainant.
police are not executing the warrant and returning the same with a report that address of the accused not known & accused presently does not reside in the said address.. now JMFC court insisting the complainant to get the proper address otherwise he will dismiss the case...
Vinod Singh Tomar
(Expert) 08 February 2012
Based upon service of notice and report / proof of summons,an after referring police report against warrant, you can take further steps for proclamation and attachment of property if any.
Shonee Kapoor
(Expert) 10 February 2012
Agreed with experts.
Regards,
Shonee Kapoor
harassed.by.498a@gmail.com
