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Parveen Kr. Aggarwal (Advocate)     30 January 2010

Dismissal of 138 complaint

In case of dismissal in default of a complaint (failure of the complainant to appear) what is the remedy available to the complainant?



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 14 Replies

Arvind Singh Chauhan (advocate)     30 January 2010

I think revision in session court.

H.D.Kumaravelu (Advocate)     30 January 2010

Sir,

File a revision before the Session Judge under section 397 read with section 399  of the code of Criminal Procedure 1973.

Adinath@Avinash Patil (advocate)     30 January 2010

ONLY REMEDY IS TO FILE REVISION IN SESSION COURT.

sridher mariappan (advocate/notary)     30 January 2010

sir

you remedy is only to file Revision before the HC and not District Court.

thanks and regards

sridher.m

madurai

sridher mariappan (advocate/notary)     30 January 2010

sir

clarification Pls:

pls refer to 2003[2] DCR PAGE 96. KALPANA tYAGI Vs. Snehlata Sharma.

2003]2]2 DCR 112

it is seen from that judgment that appeal before the HC alone is maintainable since the magistrate has passed an ordre acquiting the accused under sec.256 of the code.

regards

sridher.m

1 Like

Jithendra.H.J (Lawyer)     30 January 2010

 No!!!!!!!!!!

Revision is not maintainable before the sessions court,

you have to approach the High court, 

(it is rightly suggested by the sridher) I never expected the wrong advise from Arvind and Adinath

Jithendra.H.J (Lawyer)     31 January 2010

 Negotiable Instruments Act, 1881, S.138 - Dishonour of cheque - Dismissal of complaint in default - Magistrate cannot order restoration of complaint even if complainant shows very good reasons for his failure to be present on the date of dismissal of complaint - The only remedy available to the complainant is to approach High Court u/s 482 Cr.P.C. for setting aside the order of dismissal of complaint. (Om Parkash Vs M/s.Golden Forest India Ltd. & Ors.) 2008(3) Civil Court Cases 105 (P&H) : 2008(2) Criminal Court Cases 429 (P&H)

sunil pagare (lawyer)     03 February 2010

Disimissing complaint its amounts an aquittal of accused & in case of aquittal in private cri.case ,appeal lies to HIGH COURT as my Jitendra & Sridhar said.

Hemant Agarwal (ha21@rediffmail.com Mumbai : 9820174108)     03 February 2010

MY PRECEPTIONS :

 

1.  Complaint under the N.I.Act,  is a private complaint.  The trial court cannot lead the complaint on suo-motto basis.

 

2.  If the complainant is absent in the court  (whether deliberately or otherwise or whatever-so-wise) FOR  SEVERAL CONSECUTIVE DATES,   then there is nobody to lead the prosecution (trial, evidence, cross & arguments, etc...).

 

3.  If the complaintant is absent to lead the prosecution,  then the court has no option but to   "DISMISS"  the complaint, de facto.  The MM on it own,  cannot proceed against the accused, nor lead the prosecution, since the concept of  "criminal & vicarious liability"  can be fastened only & only by prosecution evidences & documents,  which will be absent, when the complainant himself remains absent.  AND further more, under the law,  there is no such thing as  "deemed criminal & vicarious liability" against the accused.

 

4.  Accused can be termed as   "Acquitted"  or  "Convicted",   ONLY & ONLY if proved DURING THE TRIAL ....  AND NOT OTHER WISE.   There is no such thing as  AUTOMATIC  Acquital or Conviction, under our Laws.  Our Law says  "presumed  innocent untill proved guilty".
NOTE :  AND IT DOES NOT SAY   "PRESUMED ACQUITTED / CONVICTED UNTO TRIAL"
.

 

5.  If the trial has not commenced, then the MM has no jurisdiction to  order to "Acquit or Convict" any accused.  The maximum jurisdiction the MM has. is to dismiss the case.

 

6.  Dimissal of the case is not equal to Acquital or Conviction.  It will only mean simply as  "Case Dismissed",   for reasons such as abuse of process of law or otherwise.
The case can be dismissed for a spectrum of reasons (lack of proper notice, illegal debt, law of limitation, forged documents,  etc..... )   BUT all this does not mean  "Acquital or Conviction" of the accused.

 

7.  IF   "dismissal of case" is automatically & magically equivalent to "acquital",  then in the same vein  it can also be hallucinated & construed as   "conviction"  in a case dismissal.   AND WHY NOT ?

 

8.  IF the complaint consistently  remains  absent in the trial court,  there is no measure to understand the reasons for his absence for prosecution purposes.   On the contrary, the complaintant will be termed as having abused the judicial process.
Going by this logic,  the complainant forfeits his constitutional rights to approach  ANY higher court, under ANY section & Act, for ANY relief whatsoever.  No Writ can be maintainable.

 

9.  Constitutional relief in higher courts can be maintainable only if there is a question or lacuna of process of law leading to Acquital or Conviction

 

QUESTION :  JUST in case If the complainant was absent in court  THEN  WHERE .... Where .... where  was the complainant's counsel (Advocate) when the case was put up before the MM.  DID he swallow up the complainant's fees OR did he construe it as a donation from the complainant  OR what ?
 

ANSWER =  IGNORANCE

 


IF, forum members wish to counter-discuss the above,  please do so with proper reasonings and justifications.


Keep Smiling .... Hemant Agarwal
 

Parveen Kr. Aggarwal (Advocate)     03 February 2010

If the complainant has justified reason for not appearing on the date fixed and the counsel also could not appear as he was not having any instructions from the client and despite best efforts the complainant could not be contacted on the date fixed. The counsel only acts on the instructions of the client and counsel acts with the faith that either his client will come present in the court on the date fixed or will intimate him in case he is unable to attend the court. In the absence of any information about the complaianant  neither the counsel can file application for exemption from presence of counsel (because reason of non-appearance is to be spelt out in the application) nor the courts mark presence of counsel.

Arvind Singh Chauhan (advocate)     03 February 2010

In absence of complainant Court can proceed under 256 Cr.P.C  and may acquit the accused, if the trial is summon trial. If it is warrant trial and charge has not been  framed it will discharge the accused and if charge has been framed, it will acquit the accused.

Parveen Kr. Aggarwal (Advocate)     04 February 2010

Yes. Mr. Hemant Aggarwal

 

1. Once a litigant engages a counsel, the counsel undertakes to bear all the negligence of the litigant and it is the duty of the counsel to cover up all the acts and omissions of negligence of the litigant.

2. It is the duty of the counsel to intimate the litigant one day before each date of hearing that next day his case will be heard by the Court and it is the right of the litigant to forget it. On the date of hearing also, it is the duty of the counsel to make telephone calls repeatedly to intimate him that his case will be taken up and the Court is waiting for him.

3. It is the duty of the counsel to concoct false stories to tell the court that he client could not attend the court for such and such reason when the counsel himself is not aware why his client has come to the court to attend his case.

4. Despite the case being fixed for third time for prosecution evidence after notice of accusation (and no evidence adduced) and the complainant does not turn up and his cellphone is not reachable, his counsel is obliged to appear before the court repeatedly and explain the non-appearance of his client by making up stories and despite the court pressing the counsel for producing the complainant for his evidence on the ground that the case was one of the oldest cases of his court and under directions of the High Court it was to be decided within specified time.

All this because he has accepted brief of a client and was paid FEES to swallow it or he received DONATION from his client.

Hemant Agarwal (ha21@rediffmail.com Mumbai : 9820174108)     04 February 2010

 

Dear Parveen (adocate)

 

Thank you for confirming to some of the most common malpractices adopted by some of the qualified but ignorant advocates.  AND intuitively, I feel that you are not one of those kind.

 

IF, In the event, if your comments were a taunt to my question, then I would say that you are very very good at indirect criticism.  However such criticism are always flushed down the sewage drain (that's whenever I receive them)

 

Keep Smiling .... Hemant Agarwal
 

Parveen Kr. Aggarwal (Advocate)     04 February 2010

 

Mr. Hemant Aggarwal. I am grateful to you for initiating a discussion which is need of the hour.
 
I had just submitted in response to the offer of counter-discussion and I never intended to taunt but in case any such indication appeared incidentally I apologise for the same.
 
Perhaps I have gone to the other extreme while you were talking about one extreme. Anyhow this World can be termed as ‘rainbow’ containing all the colours of all kinds (persons with distinct personalities).
 
After watching the movie '3 idiots' one would realize that we need 'Ranchos' not only in the teaching and engineering field but also in the legal field. One wonders despite expiry of more than 60 years of 'INDEPENDENCE' we have failed to enact laws of our own and are following the laws [major and basic laws being IPC(1860), Evidence Act (1872), Contract Act (1872), CPC (1908), Transfer of Property Act (1882), Registration Act (1908) ................. ]. The only reason therefor appears to be that we cannot make better laws to replace the pre-independence laws enacted by the Rulers for the persons to be ruled. The recently enacted laws are so loosely drafted that it is not possible to say anything with certainty [e.g. Domestic Violence Act].
 
Another question which needs consideration of everyone is 'why our courts are burdened with crores of pending cases?' Whether the slow disposal of cases by the courts is the only reason or is there some other thing which has not caught the attention of the people. My personal opinion is that the root cause of ever increasing litigation is lack of honesty or 'good sanskars' in us. If one accepts the genuine claim of others then there will be no litigation for the same and if everybody realizes his duties towards others (individuals and society) then there will be no litigation at all.
 
The concept of 'Dharma' lays stress on the point that one should perform his duties (his dharma) towards the others religiously. Every corresponding right has a duty. If anything is your right then that is my duty and this principle is applicable to all the rights and duties. If everybody performs his duties without even thinking of his own rights then rights of all the persons will be automatically fulfilled and nobody will have to ask the other for his rights. Today there are so many NGOs and organisations claiming rights on behalf of every group of persons but none of them thinks of performance of duties. Then how can rights be fulfilled when nobody performs duties. Even the Constitution of India makes only the Fundamental Rights enforceable and Fundamental Duties unenforceable.
 
We need to think in a different manner.
 
Keep Smiling........
 
 

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