The allegation of the opposite party is that B had given you in cash of Rs.6 lakhs on two occasions of Rs.3 lakhs each and to prove this fact, the eye witness A has been produced with B's capital account statement. Now two important questions arise. First, at the start of their evidence, whether they filed the "list of witnesses" or not. If they have not filed you should have demanded for that at the beginning of their evidence. Next, if they filed in "list of witnesses", whether B's name is mentioned or not? You must carefully should go through this particular fact. If B's name is not there, you should put best efforts not to allow B at the later stage, even aftery they file application.
** I am the petitioner & wife is the respondent. Neither I gave list of witness when my evidence happened nor she. This is her RW-2. It may be custom/way of practice here that advocates do not submit list and nobody is a ‘summoned witness’ from any side, no objections.
To the best of my knowledge, person B will not appear (their minor family dispute).
There is a golden principle in evidence Act. The party is supposed to produce the 'best possible evidence'. In this case, if the party wants to prove its allegation, it should have produced 'B' instead of 'A' in the witness box, as he allegedly paid you the cash and also that Account statement belongs to him. If 'B' is not in a position to be available to the court due to his death or such similar reason, then only 'A' as a witness can become competent witness in respect of such particular fact and say what he said and can produce the document what he produced.
** Good point. Can u mention what rule-order of CPC?
** Will it be better 2 raise this point at arguments only. What I want is – let person A complete his evidence. We will have a strong cross for him. We will harp on 2 points at arguments (1) Person B was never produced though alive and available (2) Person A submitted a bogus exhibit. All this was done because no dowry was ever given.
So, in your cross examination, three pronged approach has to be adopted. First irrelevance of A's presence to prove the alleged incident happened between B and you and next producing the supposed Account statement of B, that too computer generated. This very documents comes under very severe question as the signature on the document has to be proved and A is not competent to prove the signature and the validity of the document ( if you put proper questions) goes into thin air.
** He merely states that this document is generated and signed in my presence & I recongnise B's signatures
Now, appropriate positive and negative suggestions have to be given to A in the cross examination (you consult your advocate and suggestion are required to put forth your case at the time of his cross examination and missing to ask appropriate suggestive questions may be detrimental to your case.
** Fortunately my advo is on similar line.
In these suggestive questions, the importance of payment of money worth more than Rs.20,000/- shall be in the nature of cheque/D.D. etc. should be asked.
** Plz clarify, I cud not understand, what to ask him exactly?
In these suggestive questions, the importance of payment of money worth more than Rs.20,000/- shall be in the nature of cheque/D.D. etc. should be asked. Now, the very important question - whether you should call for the records of B, like balance sheet, his bank statement etc. Legally, you have got a right to do so, but it is not necessary, if you get appropriate answers to your cross examination questions. The burden of proving that dowry was paid to you lie on the opposite party. Hence, it is their responsibility to produce such documentary evidence to the satisfaction of the court. If they have not done, they have to face the consequences. Hence, your question to A shall be - "Have you filed balance sheet of B to prove your statement". His answer will be "no". Again in the place of balance sheet, you put 'bank statement' and ask the similar question and get the same answer. After putting such questions, finally you put such suggestive question - "As B has never paid me the cash of RS.6 lakhs and as those documents prove your lies, you have not filed the same". His answer will be "no". But at the time of arguments, the judge will read this statement in your favour by coming to the conclusion that non-filing of the relevant documents by the opposite party proves your innocence.
** Wonderful guidance. Thanx
One more facet for this entire episode. On some occasions, it will be possible that dowry could be given in cash, if bridegroom demands, but the provenance (origin) of such cash cannot be from thin air. The B has to prove that how this cash has come into his hand. The transaction has to be shown by which, the court shall derive the fact that he had cash in hand of Rs.3 lakhs each on those particular dates or proximity of those days. If he had received it through some friend, he had to show such transactin or by selling some property he got it, he has to show such sale transaction.
** He has done this homework. In that very Cap. Acc Statement, B has shown ‘money received from XX for sale of property’. Then that amm he gave to me after 4-5 days.
Finally, note that after opposite party's evidence will be over, you will get ample opportunity and time to go through their examnation and having thorough discussion, you can call for such record of D, what you think necessary, at the time your evidence. (Personally I do not think such situation will arise) (I gave this reply thinking that opposite party is petitioner and you are respondent.
** Yes, We do not paln to drag it that much. My advocate’s main aim is: Asking person B that (1) Nobody from his side ever gave draft or chk (2) This document is self generated by A, no received signatures from husband (3) B has not submitted balance sheet, ITR, Passbooks related to these transactions. (4) Person A has not come coz u ppl r submitting a false & fabricated document