Locus standi u/s 156(3) before sending to police, informatio

director

A loan was given to a Govt. Employee (Senior Clerk, handicapped by legs and when he writes his hand tremble) repayable in 24 installments on the basis of  24 post dated cheques, in addition to this, an undertaking from his Department(employer) was also given that if the cheque of borrower will be dishonoured, the amount of cheque will be deducted from his salary and sent to financer. At the time of taking loan, on the back portion of the undertaking, it was written “this undertaking is given by Mr. X and Mr. X is authorized to give this undertaking” and this writing is written by a person (As borrower’s hand trembles when he writes) who is accompanied with the borrower and , unknown to financer, afterwards, it was signed by the borrower. The said undertaking is not verified by the financer from the Department.

 When cheques were dishonoured, firstly, the borrower was asked by regd letter that the amount should be deposited, otherwise your undertaking will be sent to department, when amount was not paid, the undertaking was sent to department, and afterwards, he has deposited the amount of  dishonoured cheques, but no reply from the department.

But again, the cheques were dishonoured, same process was followed, but this time, his department wrote that the undertaking was not issued by this department and you should not do correspondence with department. Thus four cheques were become due and a notice u/s 138  dated 28.06.2013 was also issued to borrower, that was duly received by him on 01.06.2013. The Department gave notice to the borrower for action against him on 15.04.2013, 02.05.2013, 24.05.2013 and lastly on 30.05.2013  u/s 16 of C.C.A. of departmental inquiry along with photocopy of undertaking also.

 After taking photocopy of undertaking, the borrower put a complaint u/s 156(3) to Magistrate court on 04.06.2013( because lodging of  FIR was denied by the police on 02.06.2013 ) that the undertaking is made by the employee of financer to pressurize me to repay and it is forged one, only the signature (taken at the time of giving loan, at blank papers) is mine, and writing that undertaking is given by my departments’ authorized person is not in my handwriting, thus offence u/s 409,420,467,468,471 and 120 B was committed. This information and copy of complaint against financers’ employees u/s 156(3) was got by financer from borrowers’ department letter dated 26.06.2013 in reply of financers’ letter for getting deducted amount of cheques from salary of borrower, as the borrower gave this complainants’ copy to his department in reply dated 20.06.2013 to notice u/s 16 C.C.A issued to borrower and in said reply dated 20.06.2013, it has come to notice that  said borrower took loan from another financer and said allegation against another financer  were made u/s 156(3) on 01.06.2003 in one another magistrate court and copy of that was also given to his department.

 Now  First question, whether the employees of financer can present themselves in court for telling the whole truth, before sending the complaint to police u/s 153(3) i.e whether there is a locus standi to appear in the court as the financer got the information from the dept, and not from the court. Second question, whether the complaint for making a false complaint u/s 156(3) against financers’ employees should be made against the borrower. Third any remedy to financer to save himself and his employees and get punished the borrower.

This was posted here in addition to expert column, as some members are learned ones, but still not got themselves registered as expert.

 
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Dy Director

refer to discussion on repated query at

 

http://www.lawyersclubindia.com/experts/Locus-standi-u-s-156-3-before-sending-to-police-information-of-complaint-from-Govt-Dept--403096.asp#.Uc7TO9jQzmk

 
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Dy Director

refer to opinion at

 

http://www.lawyersclubindia.com/experts/Locus-standi-u-s-156-3-before-sending-to-police-information-of-complaint-from-Govt-Dept--403096.asp#.Uc7EPNjQzmk

 
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Lawyer at Delhi

On the one hand, you say that the undertaking was given by the borrower’s department, on the other, you say that the undertaking was signed by the borrower himself. If the undertaking was given by the department, then it should have been signed by an authorized officer of the department and not by the borrower. If the borrower himself is signing the undertaking, how can it bind the department? The fact that it was written by someone else, may not be fully relevant, since it is the signature that is relevant.

 

In the answer to your first question, I may state that once the Magistrate has already ordered investigation under S. 156(3) Cr.P.C., he becomes functus officio. The matter has already gone out of his control. No inquiry or trial is pending before him (after having ordered investigation), and moreover, he has not yet taken cognizance of the offence on the complaint [since he has ordered investigation under S. 156(3) Cr.P.C.], so he has no jurisdiction to stay investigation by the police, after having ordered it. This is what was held by Karnataka High Court in India Brewery & Distillery Ltd. v. J. Srinivas, 1998 Cri LJ 882. So, how will you represent before the Magistrate as an accused, once he has already ordered investigation? In any case, it will be redundant.

 

However, it is possible for you to challenge the order of the Magistrate under S. 156(3) before the High Court under Section 482 Cr.P.C. The Magistrate should apply his mind before ordering investigation under S. 156(3). Where allegations in the complaint are cryptic, disclose no offence, order for investigation under S. 156(3) is without jurisdiction and the High Court can quash it under S. 482 Cr.P.C.

 

Therefore, if the Magistrate has already ordered investigation under S. 156(3), your remedy lies in approaching the High Court under S. 482 Cr.P.C. for quashing that order if you can make out a case for such quashing.

 

[Note: If I remember correctly, in another forum discussion, you had mentioned that the order under S. 156(3) was only for conducting enquiry to find out whether offence is made out. I had mentioned in that discussion that such an order is not permissible and is wrong. You can challenge such order, if that is the correct position.]

 

Answer to your second question is that nobody can prevent you from filing a complaint against the borrower for having filed a false complaint against you. The only issue is whether you can succeed in that by providing sufficient proof.

 

Answer to third question is to:

(1) pursue your S. 138 N.I. Act complaints to their logical conclusion;

(2) defend your position in the complaint filed by the borrower (by approaching the High Court and/or telling the full true story to the police during investigation / enquiry;

(3) file a counter-complaint of forgery against the borrower if there is evidence to show that it was the borrower who had forged the said undertaking;

(4) file civil proceedings for recovery of the money due from the borrower.

 

 

 
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Independent practice

Sir, It is relevant to know the real power and procedure of the police stations. according to law, only after an FIR is filed, the Police can commence investigations, thus if no cognizable offence is found, in reply to application u/s 156(3), Police should file "no crime found" report. However, in reality, the Police is discouraged from filing FIR for every offences, thus the Police get the power to do arbitration. It results in frivolous litigant gets beaten up by the Police. Once an FIR is filed, the Political statistics increases about crime. After that if the parties compromise, the application to quash FIR will be filed, or the Complainant will turn hostile means the court will pass stricture on the IO. Considering all these, the Court and Politicians turn blind eye against Police Torture on the complainant and accused both. Consequently, you cannot reject the offer of arbitration by the Police. Officially you cannot get copy of the complaint, you may not even get a written summons about the offence being FIR not filed, but in India, there is "Kachhi copy" for everything, which is supplied as "photocopy waste", after tearing off. Now the point is, once there is call from the Police Station, immediately issue Pre-suit Notice and Demand Notice under the NI Act, and file the civil and criminal cases, produce their Self Attested copies (about the Notice) and Certified copies (about the court cases) to the Policemen. Now they will be happy that, they have certain evidence in their hand, with which they can present a decent "reply" to the court. Not filing FIR immediately raises a presumption that, complainant do not have prima facie case. Thus do not worry. As a comparison, news paper of a few days back had report about Haryana girl aged 20 doing MBBS had died by falling from the Hostel at Lucknow. Police wanted to find out, whether she was raped and ragged and whether she was killed or committed suicide. Her parents did not send her for getting raped or killed, but that happened. Then why to fear about Police Stations. God will bring good luck, be open about your facts to let the policemen do not waste their time. (spelling and grammar mistakes not checked or corrected) same reply for http://www.lawyersclubindia.com/forum/To-get-copy-of-application-u-s-156-3--84316.asp#.Ud_g8tL-GS4 also. Ramanathan.G 11.15 pm of 14-7-2013
 
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director

Respected Sirs,

 The undertaking given by the department means it is computer-typed, there is a seal of department and sign of an officer (say Mr X) of that department. This undertaking is handed over to financer by the borrower telling that it was given by department, so at that time employees of financer have got written back of this undertaking letter that “this undertaking is given by Mr. X and Mr. X is authorized to give this undertaking” and this writing is written by a person (As borrower’s hand trembles when he writes) who is accompanied with the borrower afterwards, “below this writing” it was signed by the borrower. The said undertaking is not verified by the financer from the Department. Now when cheques bounced and this undertaking sent to borrower’s department, Department writes that is was not issued by the department. Thus the department gave show cause notice to initiate proceedings under rule 16 of C.C.A. to borrower. In turn, the borrower made an application u/s 156(3) to magistrate, that this undertaking is made by the employees of financer, by doing forgery of making this undertaking to pressurize me, as writing “this undertaking is given by Mr. X and Mr. X is authorized to give this undertaking” is not in my handwriting, they(the employees of financer) got some blank papers signed by me, some on them on front side and some of them on back side, from one of those papers, the said undertaking was got forged, I never gave any undertaking to Financer. And copy of this application u/s 156(3) was given to department by the borrower in reply to show cause notice under rule 16 of C.C.A. That reply of borrower was sent to financer by his department for comments and asking what financer now expect from the department.

Simply “this undertaking is given by Mr. X and Mr. X is authorized to give this undertaking” is not in handwriting of borrower himself, whereas the sign of below it, accepted by the borrower in the application u/s 156(3) itself, is enough to bring the employees of financer under forgery or in another words whether each and every word should be in the handwriting of the person whose sign is appended below of that writing. Even application u/s 156(3) is computer typed and only signed at each page and at the end of application. Borrower is accepting taking loan, not paying on time. But Borrower is calling this undertaking as forged one and involving the employees of financer of offence of forgery, by making application u/s 156(3), 

 
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Independent practice

Sir, Social networking is not a judiciary. Here the opposite party cannot be summoned, to produce the evidence before him to obtain his reply. No decree or decision in a criminal case can be made by social networking. Instead of wasting your time by narrating these long facts, please do what I said – that is, narrate entire facts, (including about the criminal case by him and police unofficial summons), in two legal notices and send to the opposite party/ debtor. Give true copy of those notices to the Police Station. After expiry of limitation of Notice period, at the earliest file the civil and criminal cases and give certified copy to the Police Station. Appreciation of evidence is very difficult task. How an evidence to be proved can never be explained in social networking. Even if you scan and send entire evidence, or paste in the web-page, an Advocate sitting at distant place cannot tell the truth or false of it. I advice you once more to commence litigations from your side, without concealing the already commenced litigation from debtor’s side. Bye. Ramanathan.G 6.30 pm of 16-7-2013
 
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director

Thanks for all to attend my queries.

 
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