amol 21 March 2015

Need help in 138 nia

Sir,

I have a query regarding NIA 138 and would be more thankful if you could help me to understand the case.

1CC case of NIA 138 has been registered against the accused, and before to the 138 case accused has also registered 1CC case U/s IPC, before his jurisdictional SDJM against NIA 138 Complainant which was order to police for investigation and after 5 year police submitted the report stating that the complainant is not cooperating with police, hence complainant(who is accused in NIA 138) file a protest petition before that same SDJM and it was allowed and now the wetness examination is going on, in between the complainant who is accused in 138 case came to know that his accused statement is pending before the concerned SDJM of NIA 138, and then he went the same court and recorded his statement and very next day his defense is also been conducted.

And the twist is come when he applied and got the certified copy of the same order he found that his statements are not been recorded properly and rest all is recorded incorrectly.

I mean complainant becomes accused and accused become complainant as per the certified copy.

Now my senior suggests that the accused of NIA 138 who is our client should go and meet the concerned SDJM in hi's chamber and urge him to rectify the order, but sir as far my knowledge, SDJM does not have inherent power to rectify his own order/mistakes( I may be wrong), and I am suggesting him to file a petition before the same SDJM or before JMFC or District Judge for the same, and this is not the first wrong order by the same SDJM, The SDJM has already passed some more such kind of ordered also in the same case like… the said SDJM has allowed NIA 138 complainant to produce wetness without intimating the accused lawyer nor accused also, and then imposed file on accused due to non presence. Anyhow,

My senior says, he should go and show the detail to the SDJM in his chamber. Moreover

I am seeking your advice how to handle this case

Can the accused file a petition before District Judge seeking transfer of the case to some other place for a fair trial, giving references of those wrong order which he has passed in past in the same case, or file recall petition before the same SDJM to record accused statement and conducting his defense.

Please light me up.

Regards

Amol

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5 Replies

SAINATH DEVALLA (LEGAL CONSULTANT) 24 March 2015

Case U/S 138 NIA, what is the other case, UR query is confusing. NIA 138 has nothing too do with other cases.

Bhaskaran Advocate (Lawyer) 02 April 2015

If you are not satisfied with the Magistrate you can by an application transfer the case to some other Magistrate.

Presuming that you are a lawyer asking this question take care it may affect your career in practise. But neverthless you can go ahead for the transfer in some rare circumstances.

As for the case on hand I doubt the court will give any importance to the earlier complaint that your accused filed against the Complainant.

See that earlier complaint does not turn into a bad subject matter for the running 138 case defense.

amol 02 April 2015

Thank you very much D Bhaskaran Sir, Yes Sir, I am a new comer taking training from a senior lawyer,

I think a brief about the case will help you to guide me, I sincerely urge u to go through it…..

Accused (Male) of NIA 138 and the complainant( Female) both were in a relationship for over 4 years and also applied for a register marriage, but due to some unjustifiable demands by the complainant and her relatives it could not turn to marriage.

Some day the Girl along with her relatives called Accuse for a discussion and attacked him when he denied to pay (some in several lakhs) with sharp weapons and snatched his wallet along with some money and a signed blank cheque. And later she misused the cheque.

Police was under their influence and denied to register his FIR, and in the help of his friend the Accuse file 1CC case before SDJM, and it has been ordered u/s 156(3) to the same police officer who denied to register his FIR/complaint for an investigation, with IPC 341/323/294/384/506and 34. Then after the I.O.(Investigation officer) started harassing and keep delaying in investigation and finally submitted final report stating complainant is not cooperating in investigation, when accused file an inaction of police before High Court.

Then Accuse file a protest petition and it has been allowed and now it is in the stage of wetness examination.

In between the girl misused the blank cheque and send threatening emails to the accuse, Like she will going to finish his life in the way of destroying his image in the society, (e-mails & love letters are available)

When the accuse got NIA 138 notice and here his present advocate did a mistake not replying the notice, and kept him in the impression that nothing will be happened, and the current status of NIA 138 case I have already been mentioned in^earlierquestion.

Please find the detail of demand notice, complaint case & cross examine of the complainant (the Girl)

1- Demand Notice: She demanded the amount which she had given to Accuse for supply of a Laptop.

2- A Blank signed cheque was issued by Accuse to discharge of the liabilities for non supply of Laptop.

1- Complaint Case FILE. NIA 138 : She stated that a friendly loan given to accuse for his urgent need and it was deposited in accused SBI A/c in Pune, and Accuse adversely issued a Signed Blank cheque towards repay of the same hand loan. And the same cheque was received from accuse in Nagpur in her home town.

A- In cross examine:- She said that she received the signed blank cheque from Accuse in Pune, and all detail was filled up by herself.

B- She said that she do not know Accuse and profession, and she said that she had no relation with accuse.

C- Again she said that, She cannot produce the cash deposit slip before the court , She also said that she received the cheque from Accuse in Pune in Accused home town

According to my observation there are many contradictions: What do you think sir, will the complaint be able to sustain to win the case.

When Accuse statement recorded:

Accused admitted that they were in love and also have applied for a marriage and the cheque was take by force from him, a complaint case is register and investigation going on for the same, and a certified FIR copy being submitted before the court.

The complainant Advocate demanded the marriage application copy, but it is taking time to get the copy even after applying through RTI.

Main while I have suggested the Accuse to file a petition before the same court to rectify the earlier wrong order and also file an another petition to protest the interest of revenue of Indian Government, where the said case complainant is violate the income tax law section 269SS by paying 20000 in cash and also the accuse is same way liable u/s 271d of income tax act for a penalty of equal to the loan if said loan is accepted by accused.

and also seeking INFORMATION, how can someone give a loan without having money lending license. and in this scenario the said case must have to refer to the appropriate authority like RBI.

Sir this was the brief about the case, Please suggest me, what are best ways to deal with the case.

Regard