File an application under section 311 Crpc.and get examined the witness.
Affidavit missing or not filed, seen after cross of complainant but before examination of accused
A loan is granted to be repaid in 12 equal installments by taking 12 post dated cheques. Post dated Cheques for 5th to 8th installments were dishonoured ,so Ist case u/s 138 was lodged for these four cheques. Post dated Cheques for 9th to 12th installments were dishonoured ,so IInd case u/s 138 was lodged for these four cheques. In Ist case affidavit of Complainant was duly filed and now case is for examination of accused u/s 313 crpc. In IInd case “affidavit of Complainant was duly filed or not” is not confirmed, but affidavit is not available in the Court record file, and now case is for examination of accused u/s 313 crpc. In both the cases, Cross examination of Complainant was already held. Now at this stage, attention of the court automatically has gone that there is no Affidavit of Complainant in IInd Case. Now Hon’ble trial Court is asking to complainant what to do in this position. So please guide, if possible with citation.
Asked 2 years ago in Criminal Law
Religion: Hindu
8 Answers
How can a case be filed without the affidavit of the complainant?? This is ridiculous. The filing counter must have seen this and raised it. It should have gone into the defective category.
If you had filed an affidavit then you must b2 having a copy of the complaint filed and the OP too. Therefore apprise the court of the situation and file a fresh affidavit along with tge statement that this is being filed as the previous affidavit was not present.
How can cross examination of complainant be done if there is no affidavit of complainant ?
roznama would reflect whether complainant has filed affidavit or not
if not filed then complainant has to file affidavit then has to be cross examined again before statement of accused
He can file the affidavit now and opportunity of cross again can be given to accused of any fresh fact is on record
Complainant is cross examined without there being examination in chief affidavit. Cross examination without chief examination is an illegality which cannot be cured. It is grave oversight by the Court. Trial will revert back to the stage of filing evidence by complainant, he will file evidence affidavit and be cross examined again and after closure of evidence of prosecution and defense, matter will be posted for 313 examination of accused.
Firstly the court will not allow cross examination of the complainant by the accused if the complainant has not filed the chief affidavit.
Besides without the copy of the affidavit the accused cannot cross examine the complainant.
Therefore it is pertinent that the complainant has to file his affidavit at the time commencement of trial, based on which the accused would be entitled to cross examine the complainant to defend his interests or at least to extract the facts or even contradicting the facts expressed by the complainant in the affidavit.
You can ask your advocate to submit the copy of the office copy of the affidavit filed by you at the time of commencement of trial so that the court will proceed with the case for now by constructing the missing the documents.
Dear Client,
you can request the court to order for the affidavit as according to Order XIX of Code of Civil Procedure, 1908 the Court to order at any point of time, any particular fact or facts to be proved by affidavit.
- if the cross examination is compilated on both the cases, then how the complainant was examined in the absence of an Affidavit by way of evidence.
