Dr. Ashok Dhamija

Forum Replies Created

Viewing 15 posts - 1 through 15 (of 1,035 total)
  • Author
    Posts
  • in reply to: How employment contract comes into existence? #2646

    As per the provisions of the Contract Act, a contract may be in writing, or it may be verbal, or it may in fact even be implied contract. No specific format is prescribed for a contract. A contract is basically a proposal and its acceptance.

    As far as Contract Act is concerned, there is no specific requirement of a formal employment contract being signed between the employer and employee, or of any formal appointment letter being issued.

    In the situation described in your question, if an employee joins a firm on the basis of an offer of employment and gives joining report, and signs attendance register everyday, it would be considered as an employment contract or agreement.

    At the same time, while it is not binding or mandatory, it may be desirable that such a contract should be in writing or in a formal form to avoid any future disputes.

  • in reply to: Cancellation of a sale deed executed by impersonation #2645

    You can file a suit for declaration that the sale deed is void ab initio since it was executed by playing fraud by way of impersonation.

    At the same time, a sale deed executed by impersonation may, in the facts of a case, also amount to an offence of cheating by impersonation, as defined under Section 416 IPC, which is punishable under Section 419 of IPC. If it the case in your matter, you may file a criminal complaint under Section 419 IPC also.

  • Offence under Section 406 IPC can be compounded by the person who is the owner of property in respect of which breach of trust has been committed. And, offence under Section 420 IPC can be compounded by the person who was cheated. Therefore, these offences are to be compounded basically by the victim of the offence.

    Therefore, I think it should be possible to compound the offences, mentioned by you, in the circumstances mentioned by you. If needed, the 3 accused persons who are outside India, may give power of attorney to someone in India to be present or file application.

  • in reply to: Power of attorney on behalf of co-owner #2642

    Power of attorney issued by one brother on behalf of his brother (who is co-owner of the property) would not be valid under law. Since the property is co-owned by two brothers, each brother can give power of attorney in respect of his own share in the property. It is not possible for a person to give a power of attorney in respect of a property or in respect of share in property which he does not own and for which he is not authorised under law.

  • in reply to: IO does not want to testify #2641

    It is for the prosecution to decide whom to produce as prosecution witnesses. You, as accused person, cannot dictate to the prosecution in this regard. The prosecution can drop its witnesses. At the same time, if the prosecution drops any important or crucial witness, whose evidence is essential to prove the prosecution case, then the court may warn the prosecution that it may have adverse consequences for the prosecution case. Dropping a crucial witness may have serious adverse consequences on the prosecution case.

    You, as an accused, cannot dictate to the prosecution as to who should be produced as prosecution witnesses. At the same time, if there is some prosecution witness who is essential for your case, you can request the court to examine such witness and point out the circumstances. The court has the power to examine any person even if he is neither a prosecution witness nor a defence witness. Further, even if the court does not agree with your suggestion, you have the option to examine such prosecution witness as a defence witness, if you are confident that such witness would be beneficial to your case.

    As regards the facts mentioned by you, these can be shown to the court, may be during the arguments stage, if the IO does not appear as a witness. If the court is convinced, it can force the IO to appear and in any case, if there is documentary evidence to prove these facts, action may perhaps be initiated against the IO even without his cross-examination if there is a default on his part.

  • in reply to: Admissibility of Electronic Evidence #2639

    (1) If the original document (in this case, the original electronic record) is produced in the court, that itself is admissible in the court. However, admissibility and reliability of evidence are two different things. Submission of primary evidence makes it admissible. But, whether such primary evidence is reliable and trustworthy and how much weight can be attached to such evidence during trial, are different issues. It is for these things, i.e., whether such evidence is reliable also, one may need scientific analysis in a given situation.

    (2) The answer to the second question would depend on the facts of the case. Perhaps, you are referring to a trap case; in such a case, if the details such as the make, serial number, etc., of the memory card have been mentioned in the pre-trap panchnama / memorandum, then they may have to be identified at the time of production of such primary evidence to prove that it is the same memory card. But, there may be other types of cases, where the recording is not done in a pre-planned manner and may have occurred in a natural course of events, then such identification features of the memory card may not have been mentioned anywhere in advance. However, if the accused raises valid objection to show that such device or memory card is not the primary evidence (i.e., this was not the original device, on which the voice was first recorded), then the prosecution may have to prove that this in fact was the original device and is thus the primary evidence. How this is done is a matter that depends on the facts of the case.

  • You have not clarified whether these properties of your grandfather are his self-acquired properties. If so, during his life-time, your grandfather has legal right to dispose of the self-acquired properties in whatever way he likes. There is no legal restriction on that.

    At the same time, while you may not have a legal remedy in such situation, you can definitely speak to your grandfather and convince him of the need to give some property to your father also, keeping in view the future needs of you and your brother/sister.

  • in reply to: Nbw issuesed #2632

    (1) Definitely, a statement made under Section 164 of the Cr.P.C. carries more weight than a statement of the same witness under Section 161 of the Cr.P.C.

    (2) Kidnapping offence does not appear to be a compoundable offence. Therefore, the accused persons will have to try to get the case quashed from the high court on the basis of the compromise, if any such compromise is arrived at by the accused and the victim. So, it depends, whether the whole case is quashed (including the case against you) or the case is quashed qua only the other 3 accused persons who compromise with the victim.

    (3) Under law, a passport can be revoked on the basis of a criminal case pending prosecution in a court of law in India.

    (4) The best way to get the non-bailable warrant (NBW) cancelled is to appear before the court and make an application to the court. If you are not appearing before the court, you may still file an application for cancellation of the NBW in case you have some strong grounds to get it done.

  • Solvency certificate is generally issued by the revenue authorities, such as Tehsildar or Sub-Divisional Magistrate. Solvency certificate is issued to an individual, on his request, declaring his financial standing for the purposes such as standing surety in favour of somebody in a criminal case, for securing loans, for securing some business contract, etc.

    Such certificate may be issued on the basis of the (1) salary drawn from the Government, (2) the property owned by the individual, (3) his income tax returns, etc., or such other documents which can establish the financial standing of the individual concerned.

    For obtaining the solvency certificate, approach the concerned revenue authority in your area, along with all necessary documents (such as salary slips, property documents such as original sale deed, affidavit that such property has not been mortgaged, identity card, address proof, etc.) and make an application in the prescribed format, if any.

  • Section 149 of the Criminal Procedure Code is given below:

    149. Police to prevent cognizable offences.— Every police officer may interpose for the purpose of preventing, and shall, to the best of his ability, prevent, the commission of any cognizable offence.”

    This section falls under Chapter 11 of the Cr.P.C., the heading of which is “PREVENTIVE ACTION OF THE POLICE”.

    It is clear from the above that while exercising powers under Section 149 of the Cr.P.C., the police is acting NOT on the basis of any cognizable offence actually committed already, but in order to PREVENT a future cognizable offence.

    Therefore, in spite of the fact that no cognizable offence has been registered by police against you, if the police officer concerned is satisfied that it is necessary to prevent commission of a cognizable offence (that may take place in the near future), he may take all necessary steps, to the best of his ability, to prevent such offence.

    The notice given to you by police under Section 149 Cr.P.C. should be seen in the light of the above.

  • The limitation period for filing revision against any order passed under the provisions of the Criminal Procedure Code is 90 days, in accordance with Article 131 of the Schedule to the Limitation Act, 1963. This will apply also to the revision application against an order under Section 125 of the Cr.P.C.

  • in reply to: Criminal case background check for government job #2628

    In a case of this nature (Section 324 IPC), in which you have already been acquitted by the competent court, I think you would not face problems in getting the government job, though it is ultimately for the appointing authority to take a call. At the same time, you should not conceal information about the case in the forms required to be filled up by you at the time of getting employment. If you conceal this information, that itself may amount to a misconduct or a ground for a future action against you by the department. But, if you disclose the information properly, also mentioning that you have been acquitted in the said case, there are good chances that you may be appointed to the job despite the said case. In the worst scenario, if the said job is declined, you can challenge the decision in the competent court or tribunal.

  • A true copy or photo copy of the original document is “secondary evidence” under the provisions of the Evidence Act. This Act mandates that a document must be proved by its “primary evidence” which means that the original document itself should be produced in the court for its inspection. However, in certain situations, secondary evidence is also permissible.

    In the facts stated by you, the original document has been lost. This situation is covered in clause (c) of Section 65 of the Evidence Act. In this situation, any type of secondary evidence is admissible in court (out of five types of secondary evidence mentioned in Section 63 of the said Act), including production of the photo copy or true copy. However, for doing that, first you’ll have to show to the court that the original document has been lost; thereafter, you can produce the photo copy or the true copy of such document to prove the document.

  • in reply to: Wrong entry in Form 26AS for Tax Deducted at Source #2626

    You should make an enquiry with the bank concerned as to the details of the TDS. It is quite possible that this TDS might be by mistake since your PAN number might have been quoted wrongly by some other depositor, or may be the bank itself committed some mistake. If you bring it to the knowledge of the bank, they may correct their mistake and rectify the TDS Return to reflect the TDS against the correct PAN number.

  • Legally there is no bar on making alternative prayers of the type mentioned by you in your petition before the high court. However, if you add the alternative prayer of directing expeditious trial if the court does not quash the criminal proceedings, it may perhaps dilute the force of your main prayer.

    Usually, there is always a general prayer at the end, such as the following (the language may differ): “Grant such other and further relief as this Hon’ble Court may deem fit and proper in the facts and circumstances of the case in the interest of justice”. So, if your main prayer is not granted, then the high court can direct expeditious trial under such general prayer also, if pressed during the oral arguments. But, in any case, it is up to you if you want to include a specific alternative prayer as mentioned by you.

Viewing 15 posts - 1 through 15 (of 1,035 total)