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sanjay Upadhyay (proprietor)     02 October 2010

138 N.I ACT

complainant filed complaint and also filed application for  leading evidence as secondary evidence as the cheques along with memos are misplaced, evidenceallowed by court . cross was almost over but deferred subsequently the complainats advocate files application for taking original chaques on record whether it is maintainable  or not  or the compalinant have to bring it in reexamination


 6 Replies

DEFENSE ADVOCATE.-firmaction@g (POWER OF DEFENSE IS IMMENSE )     02 October 2010

Basically secondary evidence ot this nature not allowed , and now production of originals is time barred. You mat have to go in revision if trial court allows production.

Shiva Kant Dixit (Advicate)     02 October 2010

Dear All,

It is maintanable because secondary evidence can't admisible when primary is present and as you said primary came in light during course of trial, so can't said time barred. But to read as evidence, the cheque must be mark as exhibit No. .. . It could be possible only when re-examination allowed and as matter of right opportunity of cross examination will permitted.   

DEEPAK ASSOCIATES (08010117611)     04 October 2010

The original can be exhibit as the trial is going on and it is proper time to exhibit the original by making an application or during the course of the cross examination

Talekar santosh subhash (legal executive)     04 October 2010

If the Hon'ble Court allowed the production of original document before court then Court has given oppertunity to the accused to cross regarding the same. no prejudice would be caused to any of the party.

DEFENSE ADVOCATE.-firmaction@g (POWER OF DEFENSE IS IMMENSE )     04 October 2010

Secondary evidence not allowed . Pl read SC citation Cr appeal 950 of 2006 in NI 138 case. There was a partnership deed but not submitted alongwith comnplaint. Not permissible later for evidence.

Shiva Kant Dixit (Advicate)     04 October 2010

Dear Shahsi,

you have little bit confusion plz go through Section 62, 63 and 65 of The Indian Evidence Act in which it is clearly discribe how and when secondary evidence can be taken.

Now coming to the citation mentioned by you under the impression that Secondary Evidence not allowed by Hon'ble Apex court, plz read that citation very carefully it's 'Ratio Decendi' is about the vicarious liability of directors of firm. For your ready reference extract of the citation is as under- 

A bare perusal of the complaint petitions demonstrates that the statutory requirements contained in Section 141 of the Negotiable Instruments Act had not been complied with. Although it is not necessary for the complainant to specifically reproduce the wordings of the section but what is required is a clear statement of fact so as to enable the court to arrive at a prima facie opinion that the accused are vicariously liable. Section 141 raises a legal fiction. By reason of the said provision, a person although is not personally liable for commission of such an offence would be vicariously liable therefor. Such vicarious liability can be inferred so far as a company registered or incorporated under the Companies Act, 1956 is concerned only if the requisite statements, which are required to be averred in the complaint petition, are made so as to make the accused therein vicariously liable for the offence committed by the company. Before a person can be made vicariously liable, strict compliance of the statutory requirements would be insisted.  It is necessary to specifically aver in a complaint under Section 141 that at the time the offence was committed, the person accused was in charge of, and responsible for the conduct of business of the company. Without this averment being made in a complaint, the requirements of Section 141 cannot be said to be satisfied.  Merely being a director of a company is not sufficient to make the person liable under Section 141 of the Act. A director in a company cannot be deemed to be in charge of and responsible to the company for the conduct of its business. The requirement of Section 141 is that the person sought to be made liable should be in charge of and responsible for the conduct of the business of the company at the relevant time. This has to be averred as a fact as there is no deemed liability of a director in such cases.

Plz read carefully before referring the citation.

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