Negotiable Instruments: Exhaustive Coverage by Adv Roma Bhagat. Register Now!
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rajesh r   08 October 2022

138 ni act

dear sirs
i am an accused in this case . cross examination was done . the complainant was given the opportunity to provide evidence he has closed his evidence as nil. 313 statement was taken and on the next date i filed an application under 311 to summon his sister and brother in law as he had stated in his cross that he had paid cash in front of them in their house to me . also application under 91 to submit the income tax returns where he stated in cross that he has shown this loan transaction. but the hon'ble judge rejected both my application saying that the application is filed after 313 statement is over and there is no use of summoning the witness as prayed by me as they will not depose in my favour and also the presumption is in favour of complainant. and it is the prerogative of the complainant to summon witness .the order was passed yesterday 7.10.22. the case is now posted for defence evidence .
my query from the learned experts is
1 . should I go for an appeal against this order . if yes which is the relevant court .
2. whether i should avoid appealing and go ahead with the trial and rely on the arguments highlighting the inconsistency of the deposition of the complainant

experts advice would be of paramount importance to me .

note:- my advocate is a fresher.

thank you.


 8 Replies

Pradipta Nath (Advocate)     08 October 2022

Obtain the certified copy and appeal it before the District Court.

For your question 2, I can form opinion only after going through the papers.

1 Like

rajesh r   08 October 2022

thank you for the reply sir .. i have already applied for the certified copy . will be getting it in 10 days time

R.K Nanda (Advocate)     08 October 2022

1. district session court.

2. better avoid filing appeal as it will waste time.
1 Like

SUMAN CHAKRABORTY (7278624428) (Legal Practitioner)     08 October 2022

My opinion is better to rely upon the judgement of the Court or if u want to drag the matter, then go for appeal before the District Judge Concerned.

1 Like

P. Venu (Advocate)     09 October 2022

What are the facts alleged? Are they, to your knowledge, true? If not true, what is the truth? What is your explanation/reply, during 313 examination, as to the evidence that implicates you in the offence?

rajesh r   17 October 2022

facts alleged are
1. he knows me through his brother in law . i asked for loan so he gave 3 lakhs loan in cash on 1.06.2018 and on the same day I gave him a cheque dated 20.6.2018. he presents the cheque and it got dishonored. sent notice for which the reply was untenable.he filed the case and in his complaint he said he was a businessman and same thing which was said in the notice was retariated.

2 . during cross he when confronted he said he is not a businessman and is an agriculturist. he said he has paid the said cash in the denomination of 500 and 1000 . that i am his brother inlaws friend for 25 years and on the request of his brother in law he paid the said cash in the presence of
his brother in law and sister at the latter's residence . when asked about income tax filing he said that he is an i t assessee and has shown the said loan transaction in his income tax returns . again when asked when did the accused handover the cheque he answers that i handed over the cheque after three months after advancing the loan and that i had handed over the cheque to his brother in-law and he in return handed over it to him . when asked if he can summon his brother in law and sister to support his claim he said yes. when asked if he can produce the it returns where he has shown the alleged loan transaction being shown he said yes.

3. the matter was listed. for further evidence of complainant and after 4 adjournment a cost of 300 rupees was imposed on him by the honble judge and he closed his side of further evidence as nil.
4. 313 statement was recorded.
5. we filed an application under 91 and 311 for production of his it returns and summoning of his brother in law and his sister . the court rejected our application saying it is the prerogative of the complainant as to how he wants to prosecute the case and the presumption is available to him.

now the case is listed for defence evidence .

this is the case .

P. Venu (Advocate)     25 October 2022

Admittedly, the complainant had given you a loan of Rs. 3 lakhs and the cheque given b you for the same amount has bounced. Is it not your moral responsibility to return the amount? Why should you take loopholes in law to inflict loss on a person who has helped you?

rajesh r   25 October 2022

Respected sir i have no contact or transaction withthe complainant whatsoever. I had transaction with his brother in law for an amount of 8 lakhs for which i hd given the cheque. I have returned the eight laks to the brother'in the by way of online transfer.






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