Regariding the evidence
Adv M.D.Azhar
(Querist) 22 June 2013
This query is : Resolved
sir, i want to know that in the mater of sec-138 of N.I. Act, after taking the evidence of complainant is it necesary to examin the banker or there is no need to examin the banker?
A Truthseeker
(Expert) 22 June 2013
it depends upon the nature of facts the complainant wants to prove by evidence.
Rajeev Kumar
(Expert) 22 June 2013
Totally depends upon fact the complainant want to prove evidence
Rajendra K Goyal
(Expert) 22 June 2013
Depends upon complainant how he want to prove his case/ complaint.
prabhakar singh
(Expert) 22 June 2013
Do not you have any advocate engaged for your case?Follow his advice.
J K Agrawal
(Expert) 22 June 2013
Not required at all unless the genuineness of cheque or return memo it self is under doubt.
Advocate Bhartesh goyal
(Expert) 22 June 2013
Yes,evidence of bank officials is required only in case when cheque or return memo is under suspicion
Veeresh Naik
(Expert) 22 June 2013
not at all required as they are presumed to be correct unless otherwise.
R.M.Bhaduri
(Expert) 23 June 2013
Not at all required, as memo/intimation slip along with returned cheque by bankers is sufficient
V R SHROFF
(Expert) 23 June 2013
On cross examination of Complainant, if prosecution side fails to prove legal points e.g.
1] A/c mtn or not by accused
2] Sign differs
3] Dishonored for reasons other than avlb u/s 138
4] material alterations
5] Challenge Chq Return Memo
Then the Compl may decide to examine Bank Officials, to fill up the lacuna of prosecution, and /or to support his case.
DEFENSE ADVOCATE.-firmaction@g
(Expert) 23 June 2013
He seems to be from complainant side and not for accused.
For accused side the advocate should be more than vigilant for bank memos which are never complete and no further evidence should be allowed to be taken to rectify the lacuna.
SC has said in one recent case that complainant be allowed to fill in lacuna but it is in conflict with section 93 of evidence act and LAW WILL PREVAIL.
prabhakar singh
(Expert) 23 June 2013
THE LAW OF PROOF IS PLAIN.HE WHO ASSERTS SHALL PROVE.
A BANK SLIP SENT BACK TO PAYEE CAN BE PROVED
BY PAYEE'S ORAL STATEMENT THAT IT WAS RECEIVED BY HIM FROM HIS BANKER THROUGH POST OR OTHERWISE.
IF ACCUSED DOES NOT CHALLENGE IT TO BE A FAKE SLIP,NO FURTHER CORROBORATION IS NEEDED.
BUT IF ACCUSED HAS CHALLENGED IT TO BE FAKE ONE,COMPLAINANT WOULD NEED TO ADDUCE ORAL EVIDENCE OF BANKER ON WHOSE ADMISSION ON OATH THE GENUINENESS SHALL GET PROVED.
SO THINGS ARE OF QUALIFIED NATURE.
THAT IS WHY MY PREVIOUS ADVICE WAS 'Do not you have any advocate engaged for your case?Follow his advice.'
DEFENSE ADVOCATE.-firmaction@g
(Expert) 23 June 2013
This is a general discussion and naturally I have contrary opinion which we take always in actual cases.
Bank slips are not fake but as a rule essential details are missing. More over the bank which bounced the cheque is not the collecting bank of the complainant.
But bounce slip never comes from collecting bank but from the bank which bounced the cheque so there is no proper custody.
These defects should not be allowed to be corrected u/s 93 of evidence act.
prabhakar singh
(Expert) 23 June 2013
What is missing in a document would always be missing,more particularly when it has been filed in court,and oral evidence may be adduced for which could be read only for explanation but that can not discard a written evidence.
There may be cases that drawer and payee or holder in course both have the same banker.
Otherwise also it is not so much material if payee's banker is other than drawer banker as cheque collection is done in a regularized banking system whose presumption would be there to take place.
Adv M.D.Azhar
(Querist) 23 June 2013
thanks for the reply all the seniors, But i would like to say u that in the cross examination of the accused defence adv asked him that, " the accused has given u a written cheque in which u have added "0" is it right?" so he denied, he also file the complain before the court to send the cheque to F.S.L. to check it out it's genueness but court refused it. and than after he decided to go at the time of his evidence means at the time of F.S. so there is implied admission on the part of the accused that cheques were given to him now the question is weather has he manipulated or not? It is not my case but this proceedings going in in the court and after taking the evidence of the complainant, the complainant wanted to pass the closing memo from his side therefore i had this query.
DEFENSE ADVOCATE.-firmaction@g
(Expert) 23 June 2013
The entire discussion was going on different context.
Now you have taken cross and if the application of accused is rejected for forensic examination he can submit it again.
After kalyani basker Naggappa case is landmark citation of SC which very recently confirmed again in Natasha singh case that the accused has unfettered right in such matters.
Well still it will depend on the advocate of accused.
Sudhir Kumar, Advocate
(Expert) 29 June 2013
