Application u/s 319 crpc.

Cheque Victim's Lawyer. LUDHIANA (PB)

Hi Experts, 

In one case :

- Complainant by mistake and confusion made out party, to son of proprietor.

- After three years, bank proved in defense that actual accused is not drawer of cheque in question and accused closed his defense, lead to FA as clear case of acqittal on merits.

- Now Complainant moved an application u/s 319 CrPC to make out the party, to original Proprietor.

Is it possible ?

 
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Lawyer

Ashish Ji pls refer to following judgments

 

Ram Naresh v/s State of of Bihar (Patna) 2010(4)PLJR880

if you are having access to Law Finder then Doc ID is #343518

 

Another judgment is 2011(3) RCR (Cri) 852

 

Since you are from Punjab, you will be able to find these judgments from Bar Library.

 
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Lawyer

Singla Ji, one another aspect came to my mind that if it is a 138 NI matter then the notice must have been sent to the son only.  So, if the notice was sent to the son only then it will not be possible to summon the father under S.319 of Cr.P.C

 

Otherwise also the complainant cannot be allowed to fill lacuna at this stage trial.

 
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Advocate Madras High Court & Legal Consultant Chennai Law in Law Firm. +91-9698884779

It seems from you query that the issue is connected with Negotiable Instrument Act which prescribe certain special legal formalities such as issuing demand notice, granting prescribed time to the accused for payment and if there was any default even after serving the demand notice then filing complaint within a stipulated time.

 

Therefore, it is clear that without complying the above mandatory legal formalities which are required under the special Act, no complaint is maintainable.

 

Thus, the application under section 319 Cr.P.C. in the given case is having no legal force.


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solve problems in criminal cases. lawproblems@gmail.com

Well it is very much legal to add party u/s 319., other things will be according specific details of complaint and evidence thereafter.

 

However it is perfectly legal and there are higher court decisions in the matter.

 
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advocate.dma@gmail.com

What the General law says: as per CPC, it  lies on the respondent to come forward and state about the constitution of the firm, if partnership then partners, if proprietorship then proprietor. But that is as far as CPC is concerned.

 

Now coming to the present case: the notice is not received by the actual proprietor, the criminal case is not maintainable against proprietorship firm as ruled by many high courts even under S.138, and the offense as rightly stated by many is deemed to have been committed if payment is not made within 15 days of receipt of notice and complaint must be filed within 30 days of that. So under no circumstances now the actual father can be brought in.

 

as I have stated in my detailed submission, by applying the general laws for NI Act, the Hon courts have made this law look very complex, there is no such need to go beyond what is stated. The son must approach HC for quash, whats he waiting for ?? And what kind of defense he has given after this? This is the most mechanical way of conducting the trial by trial court and counsels.

 

Moreover, please reread S.319, can the father be tried together with Son (original accused) ?? No not at all ??

 

 
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Cheque Victim's Lawyer. LUDHIANA (PB)

Hi, 

I have seen many times that additional accused can be roped with application u/s 319 CrPC, under vicarious liability u/s 141 of the Act (In partnership, company, HUF etc). Section 141 of the Act does't applies to proprietorship firm but law is not specific anywhere about said situation.

 
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Advocate

I agree with the opinions of few who have opined that additional accused may be roped into the case filed u/s 319 IPC under vicarious liability.If the 138 NI act has been dismissed as not maintainable, a fresh case u/s 319 can be filed.  Refer some settled laws in this regard by browsing through Indian kanoon.org.

 
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advocate.dma@gmail.com

As far as proprietorship firm is concerned, following is well settled:

 

1. S.141 is not applicable.

2. Only prop can be accused.

3. No worker or manager can be accused.

4. The firm cannot be made accused (non maintainable)

 

Most likely in this case the notice would have been sent in the name of firm and in the name of son (non proprietor), so it cannot be said that the notice is received by actual proprietor, the father. From this angle itself, father cannot be roped in.

 

A bare reading of S.319 conveys, possibility of adding accused, not changing accused. In this case it will be like changing accused.

 

Request please provide any case law of HC/SC wherein such matter is dealt?

 
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