Saturday, 19 May 2012

Draft format – Complaint for Criminal breach of trust u/s 405 to 409 IPC



Drafting / Institution of criminal complaint


Short title


Index


Proforma (Roznama)


Synopsis of the case
The chronology of happening of events (acts and omissions of the parties) which led to the filing of this Complaint.

Main points to be urged;

Acts (Statutes) and authorities (judgments) relied upon


Heading – 
Name and place of the court,
Case no.

Cause title –
Full Name, age, adult, Indian Inhabitant, place of residence / place of business of the Petitioners / Complainant and Respondents / opposite parties


  1. Brief introduction of the parties, i.e. of Complainant and accused persons.

  1. The gist of the grievance of the Complainant.

  1. Material and other relevant facts of the case:

Narration of material “Facts of the Case” is perhaps one of the most important skill of the draftsman, which really decides the “fate” and “length” of any litigation. Therefore, it is of core importance to understand what really constitute “Facts of the Case”.

The acts and omissions of the parties prior to the filing of the Complaint constitute “Facts of the Case”; and “Facts of the Case” should not be misunderstood as interpretation and conclusions which are ordinarily drawn and alleged by the Parties from the said “Facts of the Case”; NOR the Evidence which are advanced in support of the “Facts of the Case” constitute any “Facts of the Case”.

Each allegation should be contained in separate para; dates and numbers, amounts, should be expressed in figures as well as in words;

Where party pleading alleges any misrepresentation, fraud, breach of trust, wilful default or undue influence and in other alike cases, particulars of such allegation should be pleaded.

If there is any condition to be complied with before filing of the Complaint, it must be stated that the said condition is complied with, or if it is not complied, stating the reasons for not complying with the same.

Where any document is relied in the Complaint, the main part of the document may only be stated.

Where there is allegation of malice, fraudulent intention, knowledge or other condition of the mind of any person, necessary details may be incorporated.

Where there is allegation of “knowledge” of any fact, necessary details may be incorporated.

If the subject matter of the Complaint is Immovable property, then a complete description of the property sufficient to identify that property;

  1. Drawing the apparent illegalities of the accused, in the light of the position of law. (Note:1)

  1. Drawing main points to be emphasized upon.

  1. Limitation: If the nature of Offence comes within the purview of law of limitations, as provided under CrPC, 1973, state the date on which the cause of action have arose and stating that therefore the Complaint is filed within the limitation period. If Complaint is filed beyond limitation, then, a statement showing the grounds on which the exemption from the law of limitation is claimed. 

  1. Where the Complaint is filed by Authorized Representative / power of attorney holder – a para to that effect that POA is duly executed and Resolution, wherever necessary, is passed accordingly.

  1. A Para narrating facts that this court has jurisdiction to entertain the present Complaint and pass authoritative orders. The “Material acts and omissions” of the Parties, ordinarily, constitutes the “Cause of action”.

  1. No other Complaint: A Para stating that the Complainant has not filed any other Criminal Complaint, touching the subject matter of the present Complaint, in any other Court of law.

  1. Reliefs Prayed:

11. The Complainant and the Advocate of the Complainant (If there is any) shall Sign at the end of the Complaint, i.e. after Prayer Clause. The Complainant shall sign on the right side of the page and the Advocate shall sign on the left side of the page. (Before Verification clause)

Verification clause


Vakalatnama


Memorandum of Regd address of the Complainant / Advocate on record


List of Documents relied upon


List of Witnesses


Exhibits


Affidavit in support of Complaint



Docket


(Note:1)
THE OFFENCE COMMITTED BY THE ACCUSED:
(a) For Example – Section 191 of IPC, 1860: [Reproduce complete text of the said Section (including Explanations and illustration, if any appended to the applicable penal Section]

Than state -
Ingredient of the offence under section 191 and existence of the respective ingredient in the present case: (You need to separate and divide each ingredient of the Section and state the facts of the existing case. This illustration below may help you in understanding the point I am trying to make).

(a) Section 191. Giving false evidence: Whoever, being legally bound by an oath or by an express provision of law to state the truth, or being bound by law to make a declaration upon any subject, makes any statement which is false, and which he either knows or believes to be false or does not believe to be true, is said to give false evidence.

Explanation 1- A statement is within the meaning of this section, whether it is made verbally or otherwise.
Explanation 2- A false statement as to the belief of the person attesting is within the meaning of this section, and a person may be guilty of giving false evidence by stating that he believes a thing which he does not believe, as well as by stating that he knows a thing which he does not know.

Illustrations
(a): A, in support of a just claim which B has against Z for one thousand rupees, falsely swears on a trial that he heard Z admit the justice of B's claim. A has given false evidence.
(b) A, being bound by an oath to state the truth, states that he believes a certain signature to be the handwriting of Z, when he does not believe it to be the handwriting of Z. Here A states that which he knows to be false, and therefore gives false evidence.
(c) A, knowing the general character of Z's handwriting, states that he believes a certain signature to be the handwriting of Z; A in good faith believing it to be so. Here A's statement is merely as to his belief, and is true as to his belief, and therefore, although the signature may not be the handwriting of Z, A has not given false evidence.
(d) A, being bound by an oath to state the truth, states that he knows that Z was at a particular place on a particular day, not knowing anything upon the subject. A gives false evidence whether Z was at that place on the day named or not.
(e) A, an interpreter or translator, gives or certifies as a true interpretation or translation of a statement or document which he is bound by oath to interpret or translate truly, that which is not and which he does not believe to be a true interpretation or translation. A has given false evidence.

Ingredient of the offence under section 191 and existence of the respective ingredient in the present case:

(a) Whoever, Whoever includes the accused herein;

(b) being legally bound by an oath or by an express provision of law to state the truth, or being bound by law to make a declaration The accused herein is legally bound by an express provision of law to state the truth (Section 17 the Representation of Peoples Act, 1950 read with Rule 20 of the The Registration of Elector Rules, 1960, Rule being made under the Representation of Peoples Act, 1950);

(c) upon any subject, The accused herein made declaration in respect of his ordinary place of residence and in respect of non existence of accused’s name in any other Electoral Constituency;

(d) makes any statement which is false, and which he either knows or believes to be false or does not believe to be true, The accused made false statement that he is permanent resident of Mumbai and his name doesn’t appear in Jaipur’s Voter’s Record as alleged by the Complainant. The knowledge of the falsity of this statement can safely be attributed towards the accused herein when the Public Records manifests itself that accused name reflects in Jaipur’s Voter’s Record since 1980 and renewed in 1993.



Rules for the Institution of the Criminal Complaints before the Competent Magistrates Courts are provided in Criminal Manual of each State. Criminal Manual contains the Rules prescribed by every High Court in the exercise of their Powers under Article 227 and 235 of the Constitution of India. The said Rules fill the gaps and vacuum in legislative provisions and are in furtherance of the provisions contained in CrPC and in Indian Evidence Act, 1872.


Steps after Institution of complaints


1.                  Examination of the Complainant by the Magistrate u/s 200 of CrPC, 1973.
2.                  Examination of witnesses of the Complainant, wherever the Magistrates think fit.
3.                  Inquiry by Magistrates u/s 202, either by himself or by directing any Police officer empowered in this behalf, to conduct inquiry and submit report. The said Inquiry is mandatory only in cases where the accused resides beyond the jurisdiction of the concerned Magistrates Court; and in other cases, it is the discretion of the Magistrate to direct any Inquiry as the facts of the case necessitates.

4.                  Dismissal of Complaint by the Magistrate u/s 203.
5.                  Issuance of Summons / Warrant u/s 204, to the Accused Person.

Commencement of proceedings before Magistrates Courts – Sections 204 to 210

Issuance of Summons / Warrant to the accused – Section 204


Exemption from Personal appearance of accused – Section 205


Copy of Chargesheet / Complaint to accused must be given – Section 207, 208




Magistrate directing Investigation and also taking Cognizance of Private Complaint – Section 210



Framing of Charges – Sections 211 to 224

Framing of Charges










Trial before Magistrates Court on Private Complaint of Warrant cases – Sections 244 to 247


Discharge of accused





Trial before Magistrates Courts of Summons cases – Sections 251 to 259





Summary trials before Magistrates Courts – Sections 260 to 265
(Will be added soon)

Evidences in Inquiries and in Trials – Sections 272 to 299


Recording of Evidence in the absence of accused – Section 299




General provisions as to all trials and Enquiries – Sections 300 to 327

Doctrine of Double Jeopardy – Section 300, Article 20 of the Constitution of India


Examination / Re-examination of Witnesses in the interest of Justice – Section 311


Compounding of Offences – Section 320


Examination of accused – Section 313




Accused cannot be compelled to be a witness – Section 315 read with Article 20(2) of the Constitution of India


6.                  Wherein it is alleged by the Accused that Complainant has in any way made false statements / false declarations; or has filed false Affidavit or has filed a forged document; or wherein it is alleged by the Complainant that Accused has made a false statements / false declarations in his deposition or has filed a forged document, Please refer following links:





Related Links:

Imp Sections of CrPC, 1973:
CrPC




Ingredients of the Charging Section:
(Will be added soon)



Important Sections of Indian Evidence Act, 1872:
Law of Evidence


Important Judgments
(Will be added soon)




Applications / Petitions in CrPC, before / during trial



Important aspects of any Litigations

Objective approach to any Litigation

Principles of Natural Justice

Transition to – “Due Process of law”: A “Proposition” to address almost every illegality
(Will be added soon)



Sentence of Caution

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