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Deepa (housewife)     27 September 2012

Pl help-ni138-complnt after x-exam wants 2 intro new witnens

Dear Friends. Complainant filed her affidavit in chief. She did not file for any aditional witness to be examined. Thereafter accused was called to x-examine her. In the course of x-examination several material were elecitied to show no legally liable debt is due to complainant.

Thereafter, the advocate of the complainant has told the court that he will now submit a new set of witnesses.

My question is...

1. If such a late response is permitable?

2. It seems clearly that the complainant is now attempting to fill up 'lacuna' via this delayed approach.

3. As I understand, if no list of witnesses is filed at the initial stage, and then after the x-examination of the complainant, the next step is the statement of the accused u/s 313 CrPC?

4. Still can this introduction of new witness at this late stage be allowed?

5. If Yes. By what law?

6. If Not. What is the defense?

Please guide me to some citations in this respect.

Many Thanks.


 12 Replies

LAXMINARAYAN - Sr Advocate. ( solve problems in criminal cases.     27 September 2012

If your accused you should take objection and if not allowed go in revision.

Complainant can not be allowed to conduct a rowing trial.

Ashish Singla 098140 76600 (Cheque Victim's Lawyer. LUDHIANA (PB))     27 September 2012

Deepa ji , 

Why you are  disturbed with this , if you have sound defence than cross every witness and evidence produced by  Complainant , demolish him , doing this will again your your favor .  Find exactly what wrong Complainant did from first stage in fabricating the  case. Wellcome his attack and pl find things from more and more sources in your favor.


LAXMINARAYAN - Sr Advocate. ( solve problems in criminal cases.     28 September 2012

cases are won are lost on technicals, if opponent has made technical mistakes one should all that is possible to take its advantage.


Just follow the recent two cases=

1) Arushi murder case- In the lower court CBI had filed final report that there is no evidence. The TALWAR couple organised a press confrence pressing to find real culprits. The lower court  went through all the investigation and issued process againt the couple which was confirmed even by SC.

2) Another case is of SAHARA group.The SEBI wanted all the details of its depositors. Sahara people were adamant, hired high profile advocates and went to SC AGAINST IT.

The result was SC ordered more than 24,000 crores with 15 percent interest within three months and if the depositores are not located deposit the money with GOVT.


Ashish Singla 098140 76600 (Cheque Victim's Lawyer. LUDHIANA (PB))     28 September 2012

Nice said............Who will make strategies in his case , he can win the case from either side. 

YOGESHWAR. (ADVOCATE HIGH COURT-criminal /civil     29 September 2012





1)     Most of the times cheques are given blank the complainant fills in details and filed case u/s 138.


2)     The accused has right to get the forensic examination of such cheques.


3)     But most of time when application is given immediately the lower court rejects in on the argument of being  premature.


4)     After cross of the complainant most of the times due to lack of experience of the legal counsel proper admission is not brought on the record.


So even at this stage the application for forensic examination of the writing on the cheque is refused.


5)     With all other defence opportunities this is  the most important defence for the accused of cheque bounce cases.


There are simple step by step procedure to achieve this objective.


6)     Once the writing on the complaint cheque is not of the accused is proved the whole case will automatically collapse.


7)     So those persons who are facing cases for high value cheque bounce  may please contact at our email ID  with complete details of the case for proper course of action.


R Trivedi (     29 September 2012

Just by telling of advocate that he will bring more witness will not do. He will have to file the application seeking permission and you will have the right to contest the same.


Bare perusal of procedure bars new witnesses beyond whatever is mentioned in the witness list, the complainant has to give a solid reaon why the new witness name was not there in the original list of witness. Once the accused has gotten into his evidence, no chance at all.


Moreover in summary trial there is absolutelly noway for further witnesses like this.


But the worst part is lower courts are tight pressed on account of overburdened number of cases, so decision even in straightforward cases cannot be guessed.

v.lakshminarayanan (prop)     30 September 2012

dear members

i do not entirely agree with our learned advocates's comments.

the complainant can bring in new witnesses before the arguments, of course with the permission of the court. and of course, the accused can cross examine them.

the complainant will have to be given equal chance of producing all the documents relevant to the case.

how can he decide in the begining itself about the relevancy of all the documents?





R Trivedi (     30 September 2012

In nutshell what CRPC and S.138 says (for such complaint procedures):


1.Examine the complainant and his Witness if any present  under S.200. 

2. Take the evidence in the from of affidavit of all the witnesses as stated in List of Witness and issue summon to accused.

3. No need to recall the witness again for Examination In Chief in front of accused, (if number of witness are more as per witness list, then court may take the evidence of few before summoning and evidence of remaining witness can be taken afterwards.)

4. Bail, charge and ask the accused to give his evidence.

5. Cross Examination of any witness on either side application.

6. Decision.


But unfortunately courts carry out full fledged warrant type trial minus the police investigation. In any case there is no scope of adding any witness beyond the witness list. In very rare cases the court will grant the permission when complainant can convince that such witness name could not have been given in the witness list.




santhanam (advocate)     14 October 2012

date of the loan is not proved by alibe then the wnole case will gone

KISHAN PRATAP SINGH DEORA (Specialization- Criminal Matters 138 Negotiable Instruments Act Property Law Matrimonial Disputes Societies Trusts & NGOs Registration etc. )     16 October 2012

Ms. Deepa,

There are citations available from both the sides... let me answer your questions one by one

1. Yes, it is permitable at the discretion of the majistrate... I myself got this done in a 376 case recently

2. The rule of not allowing to fill up 'lacuna' at a later stage has now been given a liberal interpretation... though it has to be balanced against the valuable right which accrues to the accused due to these lacunas.

3.  Yes, this is the process ordinarily.

4. Yes, new witness at this late stage can be allowed

5. Yes, this power derives its impetus from Section 311 Cr.PC

There are plethora of judgments which favour your position... a judicious use of those coupled with your ability to convince the majistrate... may help you to contest and get their application u/s 311 dismissed...

Best of Luck,

Adv. K. P. Singh Deora

Advocate & Legal Consultant

SANTOSHSINGH. (ADVOCATE     16 October 2012

There are many who work for complainant , it is the skill and expertise to come out of any cheque case.

Young advocates like DEORA you should continue to find and suggest  ways out for any accused to win the case.

MARU ADVOCATE (simple solutions for criminal legal problems --     16 October 2012

i have a related question whether any complainant can replace or change EXAMINATION IN CHIEF.That is once the affidavit for examination is filed than the complainant files another affidavit in the name of other person as affidavit for examination in chief. Is it allowed , if yes under what provision.

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