138 ni-propreitrix-attachment- 82(1) crpc-appointment of receiver

Tilak Marg Forum for Legal Questions Forums Criminal Law 138 ni-propreitrix-attachment- 82(1) crpc-appointment of receiver

This topic contains 3 replies, has 2 voices, and was last updated by  yousuf-husain 3 months, 2 weeks ago.

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  • #4106

    respected sir, in 138 ni act cheques issued in name of wife and signed by (propreitrix)wife. the case is filed only against accused(wife). proceess and summons were duly served on wife but wife never approached the court therefore warrants were issued against wife ; advocate commissioner was also appointed. vexed with the attitude of the accused(wife) in not approaching the court proclamation u/s 82(1) crpc is issued ; also proclamation in vernacular newspaper is duly published u/s 82(1) crpc but the accused(wife) didnot appear in the court even after 2 months.
    1. now petition u/s 83(1) crpc for appointment of receiver in terms of moveable
    property is filed and is pending in court. i have filed commercial tax department
    receipt(TIN details) showing accused wife as propreitrix of the shop ; but the
    encumberance certificate(EC) shows husband as the owner of the shop.
    2. the court says that as the husband is the owner of the shop as shown in the encumberance certificate(EC) it cannot order appointment of receiver u/s 83(1) crpc
    or issue an prohibitory order in terms of the shop.
    3. also the court is not accepting commercial tax department receipt(TIN details) as proof of evidence of ownership showing accused(wife) as propreitrix of shop.
    4. whether section 101,102,103,106,110 of evidence act be useful.
    whether 1988 (172) itr 250 (sc)- chuharmal vs cit,mp be of any help.

    5. also even after proclamation u/s 82(1) crpc published in vernacular newspaper if the accused doesnot appear whether taking steps u/s 83(1) crpc is imperative or compulsory or mandatory or, can the court proceed directly under section 174-A of ipc and 229-A of ipc.
    sir any reference or citation or authority of any high court more so of madras high court or andhra high court. please advise,urgent.
    with regards,
    yousuf husain advocate,
    hyderabad.

  • #4111

    respected sir with reference to the query posted on 3 march,2018 the matter is very important. sir i request you to reply so that i can move ahead. sir the matter is posted on 8 march for enquiry. sir please reply.
    with regards,
    yousuf husain advocate,
    hyderabad.

  • #4112

    (1) If someone else is the owner of the property, then how can the court order its attachment under Section 83 of the Criminal Procedure Code? Section 83 uses the expression: “…attachment of any property, moveable or immovable or both, belonging to the proclaimed person”. Husband of the proclaimed offender is considered to be a different person.

    (2) Ownership of property can be proved by the usual documents, such as mutation entries, registered sale deed, records of the revenue authorities / municipal authorities, or any other such document which can conclusively prove the ownership.

    (3) Provisions in the Evidence Act relating to burden of proof would definitely be useful. But, the first burden is on the person who is asserting the fact. In your case, if you want the property to be attached on the ground that the property belongs to the proclaimed person, then you will have to first prove this fact. Please note that the word proved is defined in Section 3 of the Evidence Act as under:

    ““Proved”.—A fact is said to be proved when, after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists.”

    The words disproved and “not proved” are also defined in Section 3. Please see them.

    In your case, since there appear to be contradictory facts for ownership of property, it may come under not proved. This will not shift the burden to the opposite party. In such circumstances, it would be difficult to get the attachment of property. You should get some clinching evidence in this regard.

    (4) Action under Section 83 of the Cr.P.C. is not mandatory. The word used is “may” and that too followed by the expression, “for reasons to be recorded in writing”. Therefore, in appropriate cases, Section 174-A IPC may be applied directly after Section 82 Cr.P.C. proclamation if the proclaimed person fails to appear in spite of such proclamation. However, Section 229-A IPC does not appear to be applicable since no bail was granted to accused in your case, as it appears from your question.

         


    Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers.

  • #4114

    respected sir thank you very much for your response and timely reply,
    thank you sir,
    with regards,

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