Is there any other evidence on record of mortgage of movable and immovable property?
if there is no evidence on record and deed of mortgage was not exhibited there is no evidence of mortgage and hypothecation
For secured loan - deed of mortgage and deed of hypothecation must be exhibited
Sir / Madam, As per FIR, the company's land, buildings and machineries were mortgaged & hypothecated to lending institution. Deed of mortgage of land & buildings and deed of hypothecation of machineries were not exhibited by the prosecution in a criminal case like unsecured loan. Trial court released the judgement convicting the directors for the charges on machineries based on the believe that ' Having thus mortgaged and hypothecated over the entire movable & immovable properties of the company'. Please give me the best appeal points with suitable S.C & H.C rulings sir.
Asked 6 years ago in Criminal Law
Religion: Hindu
16 Answers
The memorandum of appeal is the foundation of a case and this should not be lightly drafted so the points taken are enough to set aside the judgment impugned in the appeal.
Now to draft a memorandum of appeal the evidence of witnesses in full and all the documents exhibited along with copy of Charge sheet needs to be carefully gone through.
So in other words unless you provide the same the information supplied by you is not even sufficient to give points of appeal.
You can lead additional evidence under 391 crpc and exhibit the same. The grounds of appeal can be only framed after going through detailed judgement
Apart from FIR (a) charge sheet of CBCID (b) Fore closure and recall order by the lender (c) P.W.1 - M.D, P.W 2 - GM, P.W 3 - AGM (Legal)'s 161 (3) Crpc statements and deposition before Trial court (d) P.W 47 - I.O of CBCID deposition stated that company's land & buildings, machineries were the prime security of term loan borrowed by company and also the case property. But P.W 1 to 3 and 47 did not exhibit deed of mortgage & hypothecation. Even though accused noticed all above facts in their written argument before trial court, but did not consider them. Please give your legal advice with S.C & H.C rulings sir.
Asked 6 years ago
The prosecution need not have produced these documents creating charge over the company's assets in favour of the lending institution, as these are civil in nature, arising out of a loan agreement. However, in the criminal appeal, the following points may be helpful: 1. The directors mortgaged land and buildings and hypothecated machinery in favour of the lending institution in order to secure the creditor's interests, and these facts have been recorded in the FIR; 2. The directors have not wilfully defaulted on repayment nor cheated the lending institution by any fraud or misrepresentation.
it is necessary to peruse order passed by trial court and evidence on record to suggest ground for appeal
you can take the plea that deed of mortgage is not record and there is no evidence of any mortgage created by the company
As it is a criminal case suggest you to take an opinion in person by showcasing the documents.
Regards
G.Rajaganapathy
Lawyer
High Court of Madras
As said you can do the same as advised in appeal before appeallate court
Unexhibited document cannot read in evidence nor looked by court while delivering judgement.
Sir, Judgement, Deposition are in Tamil. FIR, Charge sheet, Sanction order, Foreclosure notice are in English. How could i send you? I am not an Advocate to under stand your legal tips over phone. Your detailed reply may be in writing. Prosecution did not Exhibit security documents, So it is UNSECURED LOAN, Lender has no right to charge on Directors regarding Machinary purchase and others. This is my major Argument in this case. Please inform Fees, Duration, nature of yuur legal assistance with rulings at earliest sir.
Asked 6 years ago
You need English translation of documents
2) you can opt for feature review of legal documents
3) it is better you contact lawyers in Tamil Nadu in this regard
All the said things you can project in appeal and your lawyer will argue the same with your 391 crpc application
Get your order translated in English. Rest documents are already readable. unless these documents are exhibited, they would not be admissible in evidence.
You may please send me copies of all the relevant papers by courier. After perusing them, I can offer my views in writing. Fees will depend on the amount of work involved.
Without knowing the details of the judgment of case it may not be possible to give a proper opinion for an appeal or even to refer any citation, you may specify some details of the judgment brief.
From your contents it can be understood that the court has passed the judgment without going through the documents or even without marking them as exhibits, however the judgment has been given on that basis only, hence more clarity is required on what you want to rely upon in the appeal.
If you say that they did not mark those documents as exhibits but have deposed evidence orally on the basis of the mortgaged deed, then nothing prevented your lawyer to highlight before court during cross examination to falsify their evidence stating that since you have not produced any such documents to prove your allegations against the accused, it is a false case.
Merely making an argument before court may not be sufficient, however you want to prefer an appeal on this ground, which in my opinion, is not a strong point to defend the interests of the accused because it is a proven fact that the loan was granted based on the said documents and it has been established in the investigation report by the IO and also in the PWs examination and evidence deposition, hence you may have to rely upon some other grounds in the memorandum of appeal besides what you want to say by this post.
You can get citations of your choice by browsing internet in indian kanoon.org or livelaw.com websites.
You have posted the subsequent question in the public forum which you intended to a particular advocate, instead you can put this question to the advocate who you may choose by having a phone consultation with the said advocate and after that you can discuss the subject matter in detail.
The chosen advocate of this forum will clarify you in person over phone all the details you are desirous of getting.
Dear Client
The ground for appeal can be that prosecution presented no evidence regarding Deed of mortgage of land & buildings and
deed of hypothecation of machineries because prosecution has not exhibited these documents
But I can you details ground for appeal after looking at the case file and judgement.
