LCI Learning

Share on Facebook

Share on Twitter

Share on LinkedIn

Share on Email

Share More

BABUBHAI THAKKAR (CEO)     30 September 2011

Complainant can be altered in case of 138 neg. inst. act

My Partnership fiem is R. M.Enterprise.We registered case of Nego.Instrument Case under 138 for dishhonour of cheque in lower court against Mr. Raju. The manager of our firm was compalinant. He signed the compalain. He left our firm and gone foreign. We ask lower court to alter complainant. The lower court quashed the case.We approach high court.The high court also quashed our petition with a note that " In criminal procedure The complainant can not be altered .The ex-manager has to remain present." The principle is alteration of complainant or accused is not permitted in criminal procedure.


 12 Replies

Nadeem Qureshi (Advocate/ nadeemqureshi1@gmail.com)     30 September 2011

Dear Sir

in National shall industries corporation ltd v/s state 2009 Cri LJ 1299 (SC)

held by SC that where the complainant is an incorporeal body, there is a complainant de jure and a complainant de facto.as a result, the company become a de jure complainant.

DEFENSE ADVOCATE.-firmaction@g (POWER OF DEFENSE IS IMMENSE )     30 September 2011

Yes if the complaint is filed in the name of firm than alright otherwise not.

Pranav S. Thakkar (advocate)     30 September 2011

Dear  Sir.

          There is no provision in a law to alter the complainant when the case is under Sec. 138 of  The Negotiable Instrument Act 1881. I do not find any judgement of Supreme court about it. Because once complaint is filed then no change is accepted even as a rule of Estoppel, on my opinion. Even in. The indian Evedence Act is it said, that the fact which is admittd first is not to be altered, as well as my interpretation. So. when the person admit himself as complainant, he can not alter the status in this case from complainant, after ince the complaint filed to the court.

DEFENSE ADVOCATE.-firmaction@g (POWER OF DEFENSE IS IMMENSE )     01 October 2011


Incidentally the  Honble SC on 9th Sep 2011 has issued stringent guidelines for procedure and validity WHILE  issuing   Non bailable warrants ( NBW )  in criminal complaints which is  more relevant for accused in criminal  cases. For original copy of the said judgment pl send me your email at firmaction@gmail.com

kvss.prabhakar rao (Advocate )     04 October 2011

Mr Qureshi is correct. 

sanjay (practice)     13 October 2011

it can be altered

R Trivedi (advocate.dma@gmail.com)     14 October 2011

In your case no modification in complainat is required. The court has ruled that in case jurist person is a company or corporation then it is not necessary that the case is continued by the person who filed the complainat, any auhtorised person can be substituted to pursue the case with the permission of the court by the dejure complainant. In your case what should have been done was.. that either one of the partner should have filed the complainat on behalf of the firm or any properly authorised employee should have filed the complaint on behalf of the firm along with the proof of constitution and partners. In second case if that employee left the firm before judgement, then the firm should file an application for taking permission of the court to be represented by a different person who could either be partner or employee, along with the reasons of such substitution with documentary evidence. Generally it should be ensured that the person who is representing the firm is aware of the transactions. For more details pl contact at: advocate.dma@gmail.com

Pranav S. Thakkar (advocate)     18 October 2011

Please Guide me if any judgment fever to alter complainant.

R Trivedi (advocate.dma@gmail.com)     18 October 2011

S.138 cases from complainant side may involve: Individuals, properietorship firms and partnership firms/companies/corporations.

1. Individual should file the case himslef. Should not take the risk of POA etc. No substitution allowed at any stage.

2. Proprietorship firms: should file the case in the name of owner. May file the case by authorising the existingh Power of Attorney. Here again, if possible properietor only should file the case. No substitution allowed, if filed by the prop. In case it is filed by the POA, then at a later stage prop can come back into picture, but no substitution. The premises for permitting POA is that he is aware of transaction, so question of substtution does not arise. You may have as many witness as you want like.

3. Companies: With due authority as per law, substitution is permitted, by first taking the permission of the court. Obviously companies being dejure person has to be represented by natural man, in case you foresee any possibility of substitution, please put the name of all such persons in the list of witness, they can be subsequently authorised, this will give an idea that they are aware of the transactions.

4. Regarding affidavit of the substitution: This is grey area, ideally the original affidavit of the complainant whoever is on record, if a new affdavit is filed by substitute then ensure that there is no material improvement. The point is it should not look like that there are 2 affidavits on behalf of the complainant, then it becomes a technical issue.  

DEFENSE ADVOCATE.-firmaction@g (POWER OF DEFENSE IS IMMENSE )     29 January 2012

Mr Thakkar you have posted your problem at various threads, pl tell ys which state you belong and send or post the copy of your HC judgement.

DEFENSE ADVOCATE.-firmaction@g (POWER OF DEFENSE IS IMMENSE )     29 January 2012

Mr Thakkar you have posted your problem at various threads, pl tell ys which state you belong and send or post the copy of your HC judgement.

DEFENSE ADVOCATE.-firmaction@g (POWER OF DEFENSE IS IMMENSE )     29 January 2012

All contributors to this thread please explore the concept of  DEJURE  and DEFECTO  conce[t as Mr Qureshi tells above is applicable for Mr Thakkars case.

Leave a reply

Your are not logged in . Please login to post replies

Click here to Login / Register