• How is bail amount calculated if no pre trial documents have been submitted?

A NBFC has filed a private criminal complaint against me under section 200 of crpc in kolkata for loan recovery based on forged documents alleging criminal acts under sec 420,418,406 & 506 ipc having committed by me at their office in Kolkata and I am a borrower residing in Bengaluru. Their lawyer has not filed any 
--pre trial evidence of loan documents or 
- evidence of the criminal acts as alleged to have happened at their office in kolkata ( its been 10 yrs since i went to kolkata) or
- explained in the complaint as to how kolkata court has jurisdiction in this matter or
- explained in the complaint how this case is maintainable in kolkata by a power of attorney holder of the original complainant who resides in pune.
 The power of attorney holder has concealed the true facts of the case about the forgery and tampering of records and the fact that the documents currently in their possession has wrong photo, altered entries in EMI tenure & amount columns & the signature on the pro note is obviously not matching even to the naked eye. Hence he has not filed any pre trial evidence.
Later on, An FIR has been registered against the NBFC by me under sections 468,471,34,465 in Bengaluru.for forgery of loan documents. 
The kolkata magistrate has issued a summons under sec 61 of crpc to appear in person or through a pleader on 26th February. 
My lawyer is asking me to 
1. plead innocence 
2. File a bail petition 
3. Pay the bail amount
4. Then explain the facts of the case during trial. 
 My query is, 
1. After pleading innocence, is a bail petition necessary at the summons stage.
2. Is it not common sense that the opposite lawyer has to file pre trial evidence of alleged acts & supply them to me so that my lawyer can evaluate the available evidence to plead innocence or guilty on my behalf?
3. If the valid loan documents are not submitted as pre trial evidence, how will the magistrate calculate the bail amount. 
- In my case the lawyer says he will do it based on the complaint letter & that it will be 2% of rhe amount mentioned in the complaint letter. When I asked her If the complainant mentions 20000 crores, without any documentation or supporting evidence basis, am I supposed to arrange for 400 crores as bail amount? She had no answer.
 So, my next query is
,4. Can a magistrate decide on need for bail and calculate the bail amount at the summons stage itself on the basis of what is mentioned in the complaint letter? 
5. Before applying for bail, Can we ask my lawyer to bring up these points before the magistrate, to ask the opposite lawyer to give us pre trial evidence of the alleged offences along with an explanation on how the case is maintainable as well as how the jurisdiction is proved in kolkata for a borrower in bangalore? 
6. If our lawyer is hesitant to do this & does not want to rub the magistrate on the wrong side by questioning how the case was admitted without pre trial evidence, what are our options?
Asked 11 months ago in Criminal Law
Religion: Hindu

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6 Answers

1) you have to apply for bail when you appear in court on first date 

 

2) the complaint filed by NBFC would contain details of offence committed by you 

 

3) bail amount is at the discretion of court 

 

4)lawyer would not like to antagonise the magistrate 

 

5)order issuing summons is not an interlocutors order revision against order is maintainable before sessions court 

 

6)in alternative you can file petition in HC under section 482 of cr pc to quash said order 

 

7) SC in adalat Prasad case has held that only remedy against summoning order is to invoke the extraordinary jurisdiction of HC under section 482 of cr pc 

Ajay Sethi
Advocate, Mumbai
97438 Answers
7874 Consultations

1. It is mandatory that you have to be enlarged on bail on the first date of appearance itself.

2. You will get the copies of the documents filed by the complainant on appearing before court.

3. The bail is a different subject to that of taking cognizance of the complaint case.

4. What is the calculation of bail amount. The bail means the temporary release of an accused person awaiting trial, sometimes on condition that a sum of money is lodged to guarantee their appearance in court.. it is not the amount for bail.

5. This is a matter of trial hence no such plea will be entertained by court at the ab initio stage.

6. If your lawyer is not cooperating with you then you can change the lawyer

T Kalaiselvan
Advocate, Vellore
87639 Answers
2352 Consultations

1. Plead Innocence is a term which used at the time of framing of charge , and it means that you want a trial of the case 

- Hence, you should apply for getting bail on the very first date of appearing in the Court. 

2. If there is no FIR is lodged against you till date , then bail is not required , and the court has summoned you to file a reply of the complaint , and hence you have right to ask for the copy of the complaint .

- However, if already FIR lodged, then you must take bail from the court. 

3. Bail amount generally depends upon the discretion of the court 

4. No bail is required at the summoned stage, if there is no FIR lodged 

5. Yes 

6. If you are not satisfied with the present lawyer , then you can legally replace him . 

Mohammed Shahzad
Advocate, Delhi
14746 Answers
224 Consultations

In trail court of criminal cases the standard amount is 15000 to 25000 unless any exceptional case is made out 

Prashant Nayak
Advocate, Mumbai
32816 Answers
209 Consultations

I think from the manner in which the query has been drafted and presented, you do not need a lawyer

you can appear as a party in person

the Kolkata Magistrate has issued summons to you requiring you to appear either in person or through a pleader

since you have a doubt about your advocate and may be even her competency, why do not you appear as a party in person?

asking for pre-trial evidence is like giving an olive branch to the complainant

even if such evidence would not be forthcoming, the complainant, in order to prevent his complaint from being dismissed, and in order to meet your objections [which are based on 'common sense'] will produce the documents [even if they be fabricated] and thus if that happens, there would remain nothing for you to attack the complainant on the ground that he has not produced any supporting documents in support of his complaint

so instead of asking for pre-trial evidence, you must attack the complainant when he steps in the witness box by putting to him that he has filed the complaint without any supporting documents and thus his complaint is a false one. ofcourse what suggestions and questions to be put to the witness is for a skilled lawyer to devise 

there is no rule which says that in all cases the bail amount would be 2% of the amount claimed in the complaint. so your example of 20k crores and 400 crores has no legs to stand

since the offence involved is a cognizable one, it is for that reason that bail application is made

Yusuf Rampurawala
Advocate, Mumbai
7741 Answers
79 Consultations

Dear client

Handling a criminal complaint can be difficult, particularly if the complainant has not provided enough evidence or if there are questions about jurisdiction. As a precaution, it is usually advisable to file a bail petition for official records, particularly if there is a possibility of an arrest. It guarantees that you are ready in the event that the magistrate decides to order your arrest during the hearing. To bolster their case, the complainant ought to present pre-trial documentation. To adequately prepare your defence, your attorney can ask the opposing counsel for this material. The charges in the complaint, the gravity of the offences, and your financial situation are some of the variables that go into determining the bond amount. The magistrate's decision may be influenced by incomplete documentation. At the summons stage, the magistrate may set bail in accordance with the details in the complaint letter and any further arguments made during the hearing. Yes, the attorney is allowed to bring up these issues with the magistrate and ask the other side for pre-trial testimony. Because it works to your advantage, it is imperative that all legal procedures are followed precisely, including establishing jurisdiction.

 

Anik Miu
Advocate, Bangalore
10358 Answers
121 Consultations

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