jayabalan Kris (free lancer) 21 December 2008

VALUABLE SUGESSION NEEDED

Dear sir(s),

I request your valuable sugessions on the below mentioned issue.
I worked as a Manager in a private firm for a monthly salary & I was not an
authorised signatory. The company has bounced the cheque to its supplier & the supplier in turn registered a complaint against the company & the police has file the case in 420 r/w 34 IPC.

Nobody (supplier) has complained against me & my name is not in the FIR also but still I have been wrongly arrested by the police due to suspection and they have remanded me in jail for 17 days, I got bail later & now charge sheet has been issued to me (and others including me)

In the charge sheet they have included me as A5 ( totally 5 people have been arrested)

I had not given any confession during my arrest, but still my charge sheet says that I had given a confession ( according to sec 161 crpc ) stating that I had masterminded and gave an idea to the company`s M.D to cheat the supplier by cheque bounce & not to pay the amount.

Even the M.D`s confession & other Executive`s (both of them have been arrested A1 & A2) charge sheet confession says that I have masterminded the cheque bounce,but they deny the facts that they had not told so to the police, when I questioned them.

There are two witnesses who have signed below my (false) confession. But no eyewitness was there during my arrest, interogation nor during remand. These two eye witnesses state that I have told in front of the Police officer that I had masterminded the plan (which is false) and they were present during my confession.

So far I have not kept any advocate (even though the company has kept an Advocate for them - but not included me) and I am defending by myself till date and now the trial is about to start ( on 06th Jan 2009 ).

My question is

1. Can I defend myself in the court during trial without appointing an advocate ( till now Judge nor PP has not questioned anything to me).

2. How can Police create a statement of mine as mentioned in 161 crpc without my recordings nor my signature.

3. Can I cross question the Eyewitnesses in the court, who has been falsely framed by the Police.

4. How can I prove I am innocent & How do I get accuted in this case.

Kindly guide me in this issue, I will be very thankfull to everybody.

Thanks & Regards

Reply Follow

6 Replies

AEJAZ AHMED (Legal Consultant/Lawyer) 22 December 2008

MR. ELANGO

First of all it is better for you to engage a Criminal Lawyer for the said proceedings.

Secondly, File one Criminal Petition before the High Court for Qaush of the Complaint, as there are several Judgements of High Courts & Supreme Courts that, Criminal Complaints are not maintainable U/S. 420 of IPC for the Offence U/S. 138 of NI Act.

Go through, one of the Recent Judgment of Supreme Court of India:

Mahindra & Mahindra Financial ServicesLtd. and Anr. v. Rajiv Dubey, Criminal Appeal No. 1966 of 2008. Date of Judgment 4-12-08

In which :

Guidelines for the use of inherent power of the court under section 482 of Cr. P.C Mahindra & Mahindra Financial ServicesLtd. and Anr. v. Rajiv Dubey, Criminal Appeal No. 1966 of 2008. Date of Judgment 4-12-08 The power under the section is designed to prevent abuse of the process of courts and also to secure the ends of justice. Though it is impossible and unadvisable to lay down comprehensive guidelines or formulae, offering illustrative contingencies would be of help. In this judgement the SC offers certain guiding principles, quoting from an earlier determined case. [State of Haryana v. Bhajan Lal (AIR 1992 SC 604)] “(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. (2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. (3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. (4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non- cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code. (5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. (6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. (7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."

Details of the Judgment you can see in Judciary OR in one of my file posted in Legal Document under FILES.

PALNITKAR V.V. (Lawyer) 23 December 2008

A statement u/s 161 of Cr. P. C is not a piece of evidence. It can not be used against you. No confession before police is admissible in evidence except when law provides so. In your case it is not admissible. The law itself provides that signature is not be taken below the statement recorded u/s 161.

Secondly, you can always defend your self, cross examine the witnesses examined by the prosecution, examine your self or witnesses in your defence. You are presumed to be innocent unless and until prosecution proves guilt against you.

As suggested by Adv. Ahmed, it is better to engage a good advocate.

jayabalan Kris (free lancer) 24 December 2008

Dear sir(s),

Thanks a lot for your valuable sugessions, I shall follow accordingly.

With Regards

Elango

RAKHI BUDHIRAJA ADVOCATE (LAWYER AT BUDHIRAJA & ASSOCIATES SUPREME COURT OF INDIA) 24 December 2008

I do agree with Mr. Ahemad.

RAKHI BUDHIRAJA ADVOCATE (LAWYER AT BUDHIRAJA & ASSOCIATES SUPREME COURT OF INDIA) 24 December 2008

For further querries n help in need u can contact me at:

rakhibudhiraja@gmail.com

Mb.-09711364956

V.V.RAMDAS (Advocate) 30 December 2008

Dear Elango,

the following points are answeres to your questions:

1. Yes, you can defend your self personally in the court during trial whithout engaseing an advocate. Moreover it is the duty of the conserned court /judge to provide you a state defence counsil with the state cost, if you have not engased any lawyer till date.If not provided and not engaged a lawyer ask the court to provide penal lawyer of state defence to defend your case.

2. I t is the duty of the police / I.O to create statement 161 Cr.P.C statement without your signature as it is a part of the investigation. So it has no evedentionry value.

3. You or your lawyer can cross examine all the prosecution witnesses during trial in the court.

4. Acqutal and conviction depends upon the legal skill of a lawyer /persons who conducts the case. So it is better either you engage a lawyer of your choice or else ask the court it provide a lawyer from the state defence penal. So that your case will be properly conducted and you will be acquted.

Moreover the citation given by Mr. Aejaj Ahamed is very usefull and you can also go to High Court on revision u/s 482 Cr.P.C fto squash the proceedings as not maintanable , when it is case of 138 N.I act. (RAMDAS)