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sanjay Upadhyay (proprietor)     10 September 2010

138 of N>I Act.

 please tel me whether complianant can file affidavit of evidence in chief agian after the cross examination was  completed by the accused   and if yes why and no why



Learning

 21 Replies

Adesh Kumar Sharma (Senior Associate Lawyer)     10 September 2010

Dear Mr. Sanjay,

in reply to your query i wud say tht there is a specific provision in the code of criminal procedure i.e. section  311, whereby the court has power to allow to recall a person as a witness, who has already been examined. The same be read as hereunder:

 

311. Power to summon material witness, or examine person present.

Any court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person its a witness, or examine any person in attendance, though not summoned as a witness, or recall and re-examine any person already examined; and the court shall summon and examine or recall and re-examine any such person if his evidence appears to it to be essential to the just decision of the case
To make you understand i hv attached the judgment which support your case.
Thanks

Attached File : 46 46 additional affidavit after cross examination.doc downloaded: 163 times
1 Like

DEFENSE ADVOCATE.-firmaction@g (POWER OF DEFENSE IS IMMENSE )     10 September 2010

The PW1 can not be rexamined ., please go through the SC judgment in

CRIMINAL APPEAL NO. 912 OF 2009

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

1 Like

Adesh Kumar Sharma (Senior Associate Lawyer)     10 September 2010

Mr. Shashi,

This judgment nowhere says that the complainant can not be recalled for re cross examination. However this judgment says that if the evidence by way of affidavit has been filed under section 145 of NI Act, then there is no requirement to record the chief of the complainant and the matter will be posted for cross examination.

This judgment is not on the power of the court under section 311 of Cr.P.C., therefore has no application on the facts and query involved herein.

Go through the judgment uploaded which you mentioned in ur reply. Please read it carefully again.


Attached File : 18 18 judgment of supreme court section 145 ni act.doc downloaded: 155 times

YOGESHWAR. (ADVOCATE HIGH COURT-criminal /civil -youract@gmail.com)     11 September 2010

Send this sharm to dustbin , since he is spreading terror by threateing the fellow contributors.

And Mr sharma if you have guts and conviction please give your address so that what is law for theatening and abusing other contributors on this plublic site., as you are doing for Mr Agrawal and shashikumar.

Adesh Kumar Sharma (Senior Associate Lawyer)     11 September 2010

Well I don know who are you, but I did not threaten anyone, however I said not mislead the visitors of this site by giving a layman opinion. Everyone needs an expert opinion not full of common sense.

Now if you are talking about Mr. Shashi, I was not intended to offend him at all, but wot does he always says that winning a case under section 138 is very easy. What do you think that legislature enacted this Act without using its prudence or you want to prove that there are a lot of loopholes in the Act.

Well Mr. it has been more than 6 years in practice and I do not claim to be a perfect in each and every law, but if you are talking about the law relating to Negotiable Instruments Act, then I challenge you for open discussion on this forum on the law of section section 138. We are the penal Lawyer for Banks, Financial Institutions and other Corporate Companies to recover their money by filing complaints u/s 138, recovery suits and Arbitration proceedings. And I file more than 1000 of complaints every month for these companies and Financial Institutions. I have seen in last 6 years of my practice that the scope of defence in a criminal complaint under section 138 is very limited, there may be some exceptions that accused is acquitted by the court. It happens just because that if there is any internal procedural lacuna by the Company or the Bank itself. 

The legislature was aware of all these things, therefore  the main purpose of adding section 139 in Negotiable Instruments Act was to evade the dishonest drawers. Further I wud suggest  you that you also take care before you speak otherwise I don need to ask you that where are you residing or practicing. I can find it out its not a big deal.

So you take care. 

Adesh Kumar Sharma (Senior Associate Lawyer)     11 September 2010

Who the hell are you to ask me to keep quite. You just shut your moth up. okey i hope you got it. Its my freedom so you think bout your rights and just keep shut your mouth up.

SANJAY GUPTA (Advocate)     11 September 2010

Mr. Sharma, dont go for argument and please dont use any offensive words for the seniors, no body can stop anybody from his freedom of exprssion. if your advice is right and for the benefit of clients and advice seekers they wl take otherwise who cares and one more thing age is no bar for the knowledge of law. Keep Going and ever smiling.

N.K.Assumi (Advocate)     12 September 2010

Hello esteem members, both Aadesh and We for you have given excellent citation on the question posted by Sanjay, and I have downloaded both the citation posted by Aadesh and I was seearching for the citation posted by We For You and when I got back to the forum I was shock that the twosome are exchanging unnecessary verbal remarks against each other. Please We for you and Aadesh, come on yeah be sporty and no need to go up to that extend: I am really so disapointed seeing both your postings when I was appreciating both of you for the wanderful citation on the subject posted by Sanjay. We are here to learn and share and in this forum we always have the habit of thanking members and also admitting our mistakes in our postings and correct ourselves. Both of you have done a wanderful task by sharing your hard works with the forum and we all appreciate such contributions from the members; and there is no reasons why you both should take it personally. So please be cool and take it as a joke and forget it. Once again thanks to both of you for the excellent citation on the subjects.

G. ARAVINTHAN (Legal Consultant / Solicitor)     12 September 2010

Not necessary

Raju Ramparag Gupta (Advocate)     13 September 2010

I think every one has cooled down now.

 

Adesh Kumar Sharma (Senior Associate Lawyer)     13 September 2010

My dear friend,

If you really want to taught law, then you can do the same on this forum by an open discussion. So please respond m waiting for to learn something.

Thanks

Vijayendra Navale (Advocacy )     13 September 2010

Hi sir i need citations on Material Alterations of Cheque.Please send if u have. Thanks

madhu mittal (director)     14 September 2010

Respected sir Aadesh kumar Sharma, our nbfc also won all cases u/s 138 N I Act, So I agree with you that there is a little scope u/s 138 if the victim is bonafide means victim has actually given loan etc. But we are facing a real problem I  do not as a lawyer, you have paid attention towards it or not, the problem is even after conviction, the accused is not punished properly either in terms of imprisonment or compensations. The trial court normally orders for compensation either equal to face value of cheque or some bigger amount. The amount is compensation is not given as per section 30, 80 and 117 N I Act.i.e interest @ 18% pa. from the date of dishonour of cheques is not being provided in spite of non obstenate clause. And most importantly the accused used to drag the proceedings for years on lame excuses and again no compensation is being given to victim in terms of attending the proceedings of court hearing by leaving his other work aside, I means victims are nor compensated for attending court hearing +conveyance for coming to court+ legal fess being paid to lawyer for attending court hearings. So in nuttshall I want to know whether there is any citation so that a victim should be compensated fully and accused should be punished for more than one year imprisonment when convicted, as when one year sentence is proved inadequate, it has been enhanced to two years, but in spite of that courts are not proving punishment  to convicted persons for more than one year, by showing undue sympathy to convicted persons. Any solutions to stop unduly sympathy of courts towards convicted persons even after dragging the proceedings for years. Any citation which says the cost of per hearing should be paid to complainant along with interest @ 18 p.a. interest as per section 80.

Adesh Kumar Sharma (Senior Associate Lawyer)     14 September 2010

Hi Ms. Mittal,

Well first of all I wud like to say that you can call me Aadesh, and no need to address as Sir. Secondly my laptop is out of order today. So next time wen I get back to you, surely will try to find out something in your favour.

Thanks


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