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somnath rai (advocate)     12 July 2011

plz. tell me answer?

Explain as to whether provision of section 200 of the code of cr.p.c. 1973 requiring magistrate to examine complaint and witnesses on oath before issuance of the process apply to a complaint regarding offence under section 138 of the act ? whether accused can be allowed to tender his evidence on affidavit?



 10 Replies

pratik (self working)     12 July 2011

good question.

prashant pundhir (Criminal Lawyer)     13 July 2011

Under section 200 cr.p.c. magistrate wii examine the complainant on oath before issuance of the process apply .

The accused will get chance to give his evidence u/s313 cr.p.c. At that time he can produce all of his evidences as per his likes . But not before that .

SAURABH KUMAR DIXIT (COM.PROGRAMER )     13 July 2011

SIR,
MERE BAHAN KO UNKE SASURALIO NE DAHEJ KE LIA MAR DALA ! MERE PITA JI KE DWARA FIR 498A/304B/506IPC AUR 3/4 DAHEJ ACT. KE ANTARGAT KARAYE GYE ! POLICE NE JANCH UNHE DAHEJ HATYA KA AROPI MANKR CHARGE SHEET PESKR 7 LOGO KO JAIL BHEJ DIYA CASE KI SUNBAI HO RHI HAI ! MERE BAHAN KI DEATH HO JANE PR HUM KYA DAHEJ BAPASI KE LIA CASE DAYAR KR SAKTE HAI a

(SAURABH KUMAR DIXIT)
SHAHJAHANPUR,UP

SAURABH KUMAR DIXIT (COM.PROGRAMER )     13 July 2011

plz. tell me answer?

SIR,
MERE BAHAN KO UNKE SASURALIO NE DAHEJ KE LIA MAR DALA ! MERE PITA JI KE DWARA FIR 498A/304B/506IPC AUR 3/4 DAHEJ ACT. KE ANTARGAT KARAYE GYE ! POLICE NE JANCH UNHE DAHEJ HATYA KA AROPI MANKR CHARGE SHEET PESKR 7 LOGO KO JAIL BHEJ DIYA CASE KI SUNBAI HO RHI HAI ! MERE BAHAN KI DEATH HO JANE PR HUM KYA DAHEJ BAPASI KE LIA CASE DAYAR KR SAKTE HAI a

(SAURABH KUMAR DIXIT)
SHAHJAHANPUR,UP

somnath rai (advocate)     14 July 2011

mr. saurabh kumar dixit  aap ek tarf keh rahe hai ki sasural valo ne ur sister ko dajej ke lie mar dala doosri taraf  aap dahej vapsi ki bat keh rahe hai.  aur ha hamare law me dahej lena aur dena dono apradh/ crime hai.

Zeeshan (Hidden)     19 July 2011

Originally posted by :somnath rai
"
mr. saurabh kumar dixit  aap ek tarf keh rahe hai ki sasural valo ne ur sister ko dajej ke lie mar dala doosri taraf  aap dahej vapsi ki bat keh rahe hai.  aur ha hamare law me dahej lena aur dena dono apradh/ crime hai.
"

 

Dear Mr somnath , Please don't be so rude. Didn't saurabh look a simple man by way of his writing ? His simplicity ? If he is cunning he never ask this question. Any lawyer can answer this . He uses very simple language. 

 

Think of a guy who's sister got killed due to dowry in reality. May be he is wrong but his ascent is very simple & didn't appear cunning. Does he become right if he uses word stridhan instead of dahej ? Is law full proof ?

THANKACHAN V P (Advocate & Notary)     22 July 2011

The Negotiable Instruments Act, 1881

 

145. Evidence on affidavit.

 

1[Evidence on affidavit.

 

(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973, (2 of 1974.) the evidence of the complainant may be given by him on affidavit and may, subject to all just exceptions be read in evidence in any enquiry, trial or other proceeding under the said Code.

(2) The Court may, if it thinks fit, and shall, on the application of the prosecution or the accused, summon and examine any person giving evidence on affidavit as to the facts contained therein.]

 

1. Section 143 to 147 ins. by Act 55 of 2002, sec. 10 (w.e.f. 6-2-2003

THANKACHAN V P (Advocate & Notary)     22 July 2011

 

Please see this citation if you want I shall sent the full text

 

2007 (4) KLT 1019

Hon'ble Mr. Justice R. Basant

H.D.F.C. v. Anilesh

Crl. M.C. Nos.2683 and 2697 of 2007

Decided on 29th October, 2007

 

 

Negotiable Instruments Act 1881, Ss.138 & 145 -- Criminal P.C. 1973, Ss.  2(d) & 200 -- It is not necessary to insist on personal appearance of complainant invariably in all cases when complaint is presented.

 

A complaint can either be oral or in writing.  Cognizance can be taken by a criminal court in one of the 3 modes permitted under S.190 Cr.P.C. It can be on receiving a complaint of facts; it can be upon a police report of such facts or it can be upon information received from any person other than a police officer or upon knowledge of the Magistrate. What is significant according to me is that S.190 Cr.P.C does not anywhere expressly or by necessary implication suggest or insist that such a complaint can be presented only personally by a complainant by appearing in court. The requirement of recording sworn statement of the complainant under S.200 Cr.P.C is there in a complaint under S.138 of the Negotiable Instruments Act also. But S.145 of the Negotiable Instruments Act clearly shows that evidence of a complainant can be given on affidavit.  Presence of the complainant becomes not necessary for recording the sworn statement under S.200 Cr.P.C. Of course, if the case falls under the just exceptions under S.145 Negotiable Instruments Act, the Magistrate undoubtedly has jurisdictional competence to insist on personal appearance of the complainant. But otherwise it does not appear to me to be necessary to insist on personal appearance of the complainant invariably in all cases when complaint is presented. In a prosecution under S.138 of the Negotiable Instruments Act, if the case comes within the just exception under S.145 of the Negotiable Instruments Act, the learned Magistrate can direct the complainant to appear on a later date. But at any rate, the insistence that the complainant must appear in person to present the complaint invariably in all cases does not appear to be justified. (Paras.3, 4, 6, 7 & 9)

 

@page-KLT1020#

 

2005 (1) KLT 220 Referred to

THANKACHAN V P (Advocate & Notary)     22 July 2011

I have filed number of 138 cases with affidavit prior to this ruling. When the provision is clear and unambigious, SC or HC need not intrepret it . I fail to understand why Magistrates courts in other parts of India are reluctant to accept affidavits!!!!!!

sweta singh (n/a)     22 July 2011

yes 1 can file evidence in affidavit ......in 138 NI act its clearly written.....in the act


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