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Bhima Meghavat   06 November 2015

Nia 138 judgement

Hi Friends,

I have a case for final hearing before judgment regarding 138 N.I.Act,

The complainant have submitted nothing except bounce cheque in her submission before the court, neither submitted any proof of legal liabilities nor any transaction prove. she claimed that the deposited certain amount in accuse account and also said that she cannot produce the deposit slip also.

1st she (complainant) refuse to having any relation with accuse then next cross examination she said she knows accused through some other unknown source, and the money she had given to accuse was a temporary hand loan, but in her complaint case she has demanded that the amount had given to accuse for supply of a computer and again she said accuse is not engaged with any computer business, and then she closed the evidence.

 

Accuse take the ground that they were in a leave-in-relationship but complainant refuse to marry and demanded some amount that because she spend some time with him, which accuse feel was unethical hence he denied to pay, and some day she called accuse to handover accuse documents, which she had when they were in love, when accuse reached the decided place she attacked accuse with her brother and friends with dare consequence and taken accused wallet and some other documents where the cheque was kept,, and immediately accuse file an FIR against them and the matter is in court.

  I need some latest judgments of legal liabilities and suit to above fact; I would be appreciating if any friend can help me to get those judgments.

Regards

Bhima

 

 



 5 Replies

SAINATH DEVALLA (LEGAL CONSULTANT)     06 November 2015

When complaint was given by the present accused about theft, what was the action taken by police

Bhima Meghavat   06 November 2015

Police submitted final report that Complainant is not cooperating, then complainant file a protest petition and SDJM take cognizance and date put-up for further order by next month.

But my client want to finish it up as early as possible hence the JMFC granted a date for 27 of this month for final hearing and judgment by  1st week of Dec-15,

Hence I need some latest judgments  

R Trivedi (advocate.dma@gmail.com)     07 November 2015

Comlainant in cheque bounce case, is your alleged accused in FIR ? How can police say that accused is not cooperating? 

 

Pl advise when was FIR lodged, and when was cheque deposited ?

Bhima Meghavat   07 November 2015

FIR date 01-Nov-13

Cheuqe Bounce 9-Jan-14

I know, ther are many contracdiction, but still I need some good judgements

If possible please provide  me some latest judgements

 

 

Anil Agrawal (Retired)     12 November 2015

It has been held by the SC in Dashrath Rupsinfh case that All other Complaints (obviously including those where the accused/respondent has not been properly served) shall be returned to the Complainant for filing in the proper Court, in consonance with our exposition of the law. If such Complaints are filed/refiled within thirty days of their return, they shall be deemed to have been filed within the time prescribed by law, unless the initial or prior filing was itself time barred. Refer Delhi High Court decision in Crl.M.C. 138/2005 dated 25/05/2009 It is thus manifest that if a complaint is prima facie barred by time when it is filed, it becomes necessary for the prosecuting agency to explain the delay and seek condensation of the same. Unless the delay is condoned the court cannot take cognizance of the complaint. In other words, the Magistrate has to apply his mind to the question of limitation at the pre-cognizance stage and satisfy himself that delay has been properly explained or that it is necessary to condone the delay in the interests of justice. The Magistrate cannot hasten to issue the process without first recording his satisfaction that the delay was satisfactorily explained to him or that he was of the view that the condensation of delay was in the interests of justice. It 19 highly doubtful that the court can condone the delay and thus extend limitation subsequent to the taking of cognizance of the offence. Of course, the condensation of delay may be implied from the act of the Magistrate in taking cognizance after the expiry of the period of limitation and proceeding with the case but the order must be clear and categorical in this respect. He has no power or authority to condone the delay provisionally or ex facie as has been seemingly done in the instant case. (9) In State of Punjab v. Sarwan Singh, AIR 1981 SC1054, the accused Sarwan Singh was convicted of an offence under Section 406, Indian Penal Code, by the trial Court. However, on appeal having been preferred by him, the High Court set aside his conviction and acquitted him mainly on the ground that the prosecution launched against him was clearly barred by limitation under sections 468 & 469 of the Code. The State went in appeal by special leave to the Supreme Court but the same was dismissed with the following observations which are very pertinent to notice:. "The object of Criminal Procedure Code in putting a bar of limitation on prosecutions was clearly to prevent the parties from filing cases after a long time, as a result of which material evidence may disappear and also to prevent abuse of the process of the court by filing vexatious and belated prosecutions long after the date of the offence. The object which the statute seeks to subserve is clearly in consonance with the concept of fairness of trial as enshrined in Article 21 of the Constitution. It is, thereforee, of the utmost importance that any prosecution, whether by the State or a private complainant must abide by the letter of law or take the risk of the prosecution failing on the ground of limitation." My query is what happens in the light of above decisions if a case under Cheque bouncing ordinance is returned to the complainant and he does not REFILE it in the transferee court within THIRTY DAYS. OR tries to file after 3 months with a plea to condone the delay. Can the accused challenge the delay if it is condoned by the magistrate? There is no extenuating circumstance for the complainant to sit over the complaint after it was returned to him by the transferor court.


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