Dr. Ashok Dhamija

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  • The judgment of the Supreme Court [Prakash v. Phulavati, (2016) 2 SCC 36] mentioned by you in your question basically relates to devolution of interest in coparcenary property in a Joint Hindu family governed by the Mitakshara law.

    What is a coparcenary property? Well, in the case of Sathyaprema Manjunatha Gowda v. CED, (1997) 10 SCC 684, the Supreme Court had earlier held as under:

    “…coparcenary is a narrower body than a joint family and consists of only those persons who have taken, by birth, an interest in the property of the holder for the time being and who can enforce a partition whenever they like. It commences with a common ancestor and includes a holder of joint property and only those males in his male line who are not removed from him by more than three degrees. Thus while a son, a grandson or a great-grandson is a coparcener with the holder of the property, the great-great-grandson cannot be a coparcener with him, because he is removed by more than three degrees from the holder.”

    Originally, the Hindu Succession Act, 1956, did not give daughters inheritance rights in coparcenary property. They could only ask for a right to sustenance from a joint Hindu family. But this disparity was removed by an amendment to the Act on 9 September, 2005. Section 6 of the Hindu Succession Act was amended in 2005, and sub-section (1) of it now provides as under:

    “6. Devolution of interest in coparcenary property.—(1) On and from the commencement of the Hindu Succession (Amendment) Act, 2005, in a Joint Hindu family governed by the Mitakshara law, the daughter of a coparcener shall,—
    (a) by birth become a coparcener in her own right in the same manner as the son;
    (b) have the same rights in the coparcenary property as she would have had if she had been a son;
    (c) be subject to the same liabilities in respect of the said coparcenary property as that of a son,
    and any reference to a Hindu Mitakshara coparcener shall be deemed to include a reference to a daughter of a coparcener:
    Provided that nothing contained in this sub-section shall affect or invalidate any disposition or alienation including any partition or testamentary disposition of property which had taken place before the 20th day of December, 2004.
    … …”.

    While interpreting this new amendment that was brought about on 9 September 2005, the Supreme Court vide its recent judgment in the case of Prakash v. Phulavati, (2016) 2 SCC 36, has held that the said amended provision of the Hindu Succession (Amendment) Act, 2005, could not have retrospective effect and that the father would have had to be alive on September 9, 2005, if the daughter were to become a co-sharer with her male siblings in a coparcenary property of a Joint Hindu family.

    The Supreme Court held that:

    “The text of the amendment itself clearly provides that the right conferred on a “daughter of a coparcener” is “on and from the commencement of the Hindu Succession (Amendment) Act, 2005”. Section 6(3) talks of death after the amendment for its applicability.”

    “In the present case, the legislature has expressly made the amendment applicable on and from its commencement and only if death of the coparcener in question is after the amendment.”

    The Supreme Court thus held that the rights under the amendment are applicable to living daughters of living coparceners as on 9 September 2005 irrespective of when such daughters are born.

    However, as mentioned above, the aforesaid amendment and the above judgment of the Supreme Court are relevant for the purposes of devolution of interest in coparcenary property in a Joint Hindu family governed by the Mitakshara law.

    In your case, if your question is related to sharing of coparcenary property of the Joint Hindu family, then you may not be able to claim share in such property of your father since he had died prior to 2005.     


    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.

  • As mentioned in my previous reply, please send a proper notice for 15 days through Registered A.D. post, even if the authority has promised you. This is so because you have mentioned that the authority is expecting some gratification from you. So, in the absence of a gratification from you, if the authority does not make the payment within 15 days after receipt of notice, at least you would be able to initiate criminal action for cheque bounce case.

    Secondly, if the authority is expecting gratification and has demanded any bribe from you, you should approach the Anti-Corruption Bureau / department in your state and get the concerned officer caught red-handed for demand / acceptance of bribe.     


    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.

  • Generally speaking, in the case of a cheque bounce, an offence under Section 138 of the Negotiable Instruments Act is made out, and not under Section 420 IPC. Therefore, when a cheque is dishonoured, a complaint should be filed in the competent court for the offence under Section 138 of N.I. Act, after satisfying other ingredients of the offence under that section.

    However, there may be some situations when an offence under Section 420 IPC may be made out in the case of a cheque bounce. For example, if the person who has issued the cheque has already closed his bank account; and knowing fully well that he has already closed his bank account, he still issues a cheque to some other person and takes delivery of some goods against that cheque; in such a situation, the intention of the person issuing cheque is clearly dishonest since he knows very well that the cheque would not be honoured as he had himself already closed his account, and with this dishonest intention since the inception he has cheated the other party by making him deliver the goods to him for that cheque which was never intended to be honoured. So, this may perhaps be one example where offence under Section 420 IPC can be made out for cheque bounce. There may be other similar situations when the offence of cheating under Section 420 IPC could be made out in cheque bounce.

    However, generally speaking, as mentioned above, in cheque bounce, the offence under Section 138 of Negotiable Instruments Act only is made out.

    Please keep in mind that offences under Section 138 N.I. Act and Section 420 IPC are two different offences altogether. Whether this offence or that offence is made out would depend on the facts of each case. You’ll have to check the ingredients of which particular offence are satisfied from the facts of your case. See the provisions of Section 420 IPC, which is reproduced below and check whether these ingredients are satisfied, and if yes, then the cheating case is made out, otherwise if only the ingredients of Section 138 N.I. Act are satisfied then you’ll have to file the case under that section alone.

    “420. Cheating and dishonestly inducing delivery of property.—Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.”

    Offence of cheating requires that there should a dishonest intention since the beginning to cheat, and then, other ingredients of that offence (as mentioned above) should also be satisfied. If these conditions are satisfied, then the offence of cheating can be made out even in a cheque bounce case. But, as mentioned above, generally speaking, for a cheque bounce case, offence under Section 138 N.I. Act only is made out, and that too, if conditions mentioned in that section are satisfied. Please read for more details: Cheque bounce cases under Section 138 Negotiable Instruments Act Explained.     


    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.

  • You have mentioned that “Appeal filed against the judgement stood dismissed”, but it is not mentioned whether the appeal was filed before the Supreme Court or before the division bench of the High Court (if the order was that of a single judge bench of the High Court).

    Generally speaking, there is no restriction in law against challenging an implemented order or judgment of the High Court (i.e., an order which has already been implemented), but the higher court (in this case, the Supreme Court) may observe that the order has already been implemented and that the challenge (i.e., the appeal in the higher court) is only an academic exercise and in such a case the appeal may be dismissed or may not be relevant for laying down the legal principle. But, some times, there are other reasons for challenging such order which has already been implemented. For example, the high court order may initially be in favour of a single person and the Government or authority concerned may implement that thinking that it does not have serious financial implications. But, subsequently, it may come to the notice of the authority that a number of other people may also claim similar benefit, which may have wider financial implications for the Government, so, therefore, the authority may decide to challenge such order even if it has been already implemented in respect of one or more employees.

    However, this does not mean that you do not have remedy in this case. Firstly, you may also file an appropriate petition before the High Court and you may get a similar order from the High Court. Stay by the Supreme Court does not mean that the order of the High Court has been reversed as yet. As of today, the High Court order is valid, though stayed.

    Second remedy for you would be to directly file an impleadment / intervening application before the Supreme Court in the case in which the High Court order has been challenged, on the ground that you would also be affected by its judgment. If your application is allowed by the Supreme Court, you may also be named as a respondent and you would be heard by the court and you can make your own submissions. In such a case, the judgment of the Supreme Court would be directly applicable to your case also.
         


    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.

  • It is not clear from your question as to whether the cheque did not bear the signature of any person at all (including that of the issuing authority) or it contained the signature of some one other than the issuing authority.

    Likewise, though you have mentioned that the bank had informed you that the cheque had bounced, but the reason is not mentioned in your question; however, from the heading of your question, it appears that the reason given may perhaps have been “13-Drawer’s signature required”. Please confirm it.

    In either case, it is advisable for you to give a 15 days’ time period to the concerned authority to make the amount, as required under clause (c) of the Proviso to Section 138 of the Negotiable Instruments Act, and a 3 days’ notice given by you may not be sufficient if you are required to file the case at a later stage. Moreover, you have sent the notice by email; it may not be sufficient. You should send the notice by registered post so that you get proof of delivery of the notice in court at a later stage, if needed.

    Please read the provisions of Section 138 carefully or take help of some local lawyer so that you take the correct legal action as per the legal provisions.

    Since the cheque issuing authority is a Government authority, I feel that the “missing signature” on the cheque may be by mistake and also that on a proper notice being sent the authority would perhaps make the payment this time.

    In the worst scenario, if the payment is not made even after notice and if you act according to the provisions of Section 138, I am of the considered opinion that an offence may be made out under that section in the facts mentioned by you, provided of course that other conditions in Section 138 are satisfied, i.e., of sending the notice and the non-payment by the issuing authority.
         


    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.

  • If you feel that the opposite party is likely to approach the Supreme Court by way of filing SLP (Special Leave Petition), you may file a caveat in the Supreme Court. Under the SC Rules, it has been provided that where a caveat has been lodged, notice of the hearing of the petition (SLP) filed by the opposite party shall be given to the caveator. In the absence of a caveat, petition for grant of special leave (SLP) is put up for hearing ex-parte, but the Court, if it thinks fit, may direct issue of notice to the respondent and adjourn the hearing of the petition.

    Thus, if you file the caveat, you’ll be informed about he hearing of the case in advance by the Supreme Court and you’ll get an opportunity of opposing the grant of leave or interim relief or stay, if any, without filing any written objections.

    If you so wish, you can also file your objections within 30 days from the date of receipt of notice or not later than 2 weeks before the date appointed for hearing, whichever is earlier, but you can do so only by setting out the grounds in opposition to the questions of law or grounds set out in the SLP and may produce such pleadings and documents filed before the Court/Tribunal against whose order the SLP is filed and may also set out the grounds for not granting interim order or for vacating interim order if already granted.
         


    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.

  • in reply to: Interpretation of Section 437(1)(i) CrPC #98

    Section 437 of the Cr.P.C. deals with the power of the Magistrate to grant bail. What Section 437(1)(i) basically means is that a person accused of an offence punishable with death or imprisonment for life shall not be released on bail by the Magistrate if there appear reasonable grounds for believing that he has been guilty of such an offence. However, conversely, it also implies that where a person is accused of such a serious offence and there does NOT appear to be reasonable grounds for believing that he is guilty of such an offence, the Magistrate would have the power to grant bail to him. So, this particular clause of Section 437 basically implies that the power of Magistrate to grant bail in such a serious offence are limited.

    In a practical scenario, in a serious case of this nature before him, on the basis of the facts and circumstances of the case, if the Magistrate can come to a conclusion that there is no evidence in the case or that it is a false case, etc., he may grant bail to him. But, generally, if there appears to be a prima facie case against the accused, it may not be permissible for the Magistrate to grant bail in such a serious offence.

    At the same time, powers of the High Court and the Court of Session to grant bail in such cases are not limited in this manner. This is clear from the language of Section 439 of Cr.P.C., which is reproduced below:

    439. Special powers of High Court or Court of Session regarding bail.— (1) A High Court or Court of Session may direct—
    (a) that any person accused of an offence and in custody be released on bail, and if the offence is of the nature specified in sub-section (3) of Section 437, may impose any condition which it considers necessary for the purposes mentioned in that sub-section;
    (b) that any condition imposed by a Magistrate when releasing any person on bail be set aside or modified:
    Provided that the High Court or the Court of Session shall, before granting bail to a person who is accused of an offence which is triable exclusively by the Court of Session or which, though not so triable, is punishable with imprisonment for life, give notice of the application for bail to the Public Prosecutor unless it is, for reasons to be recorded in writing, of opinion that it is not practicable to give such notice.
    (2) A High Court or Court of Session may direct that any person who has been released on bail under this Chapter be arrested and commit him to custody.”

    Therefore, the High Court and the Court of Session can still grant bail in an offence which is punishable with death or imprisonment for life in appropriate cases wherever it is desirable.

    Thus, the object of these provisions appears to be that the bail in such serious cases should generally be granted by the Sessions Court or the High Court.

    The second part of your question (i.e., “does the position in any way change if the bail application is moved after the case has come on trial and the charges of murder or other like offences have already been framed against the accused by the court”) may not be directly relevant. This is so because once the charges are framed in an offence which is punishable with death or imprisonment for life, the case would already have been committed for trial to the Sessions Court since the power to frame charges in such a case is only with a Court of Session (these cases being Sessions triable cases). Therefore, the Magistrate would not be in a position to grant bail to such an accused when the accused is already facing trial before the Court of Session after framing of charges.
         


    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.

  • The Supreme Court judgment in the case of Ajay Kumar Choudhary [read the judgment here: http://tilakmarg.com/doc/sc/ajay-kumar-choudhary-v-union-of-india-through-its-secretary-supreme-court-judgment-16-february-2015] was delivered in the case of a person who was working under the Central Government and was subject to the Central Civil Services Rules, under which there is a provision laying down that the suspension order can be issued initially for a period of 90 days, during which period it has to be reviewed by the authority and thereafter it can be extended indefinitely for a period of 180 days at a time subject to further review within such extended period. Moreover, this judgment was passed in a case where the suspension was due to some default other than a criminal matter.

    I am not sure as to whether there are similar provisions in the rules applicable to you under the Chhattisgarh Government.

    However, I am of the opinion that the above Supreme Court judgment should be applicable in your case also. This is due to the fact that the Supreme Court has derived the legal principle of suspension period not exceeding 3 months by extending the benefit of the right of a speedy trial in criminal cases to the issue of suspension in service law jurisprudence. Therefore, a general principle has been laid down, which should be applicable in all similar cases. Secondly, the Supreme Court also referred to the provisions of Section 167(2) Cr.P.C. that lay down a maximum period (of 2 or 3 months) for completion of investigation otherwise an accused gets a right to bail. Supreme Court held that respect and preservation of human dignity as well as the right to a speedy trial should also be placed on the same pedestal. Thirdly, the Supreme Court has also held that “the direction of the Central Vigilance Commission that pending a criminal investigation departmental proceedings are to be held in abeyance stands superseded in view of the stand adopted by us”. In view of these and other reasons, it is clear that the Supreme Court in the above case is generally worded and it should apply in your case.

    In the worst scenario, the fact remains that a new beginning has been made by the Supreme Court in the law relating to suspension, and the same principle may get applied also in other types of cases by extension of the same principle. In fact, any rules relating to suspension which are not in conformity with the above Supreme Court judgment may also be challenged appropriately to get them struck down.

    Therefore, I feel that the judgment should be made applicable in your case and you should approach the concerned authorities or the court / tribunal for getting the benefit of this judgment.

    [Read the full article referred in this reply “Suspension order not to extend beyond 3 months if charge-sheet is not served, says Supreme Court” here: http://tilakmarg.com/news/suspension-order-not-to-extend-beyond-3-months-if-charge-sheet-is-not-served-says-supreme-court/]
         


    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.

  • The decision of a 5-judge Constitution bench of the Supreme Court in the case of Lalita Kumari v. Govt. of U.P., (2014) 2 SCC 1 : AIR 2014 SC 187 : 2014 Cri LJ 470, is still fully valid and it is mandatory for the police to register FIR on the basis of an information or complaint which discloses commission of a cognizable offence.

    However, there is a very small clarification issued in the said judgment subsequently which is as under. As you may notice, in para 120.2 of the main Lalita Kumari judgment, the Supreme Court had held that if the information received does NOT disclose a cognizable offence but indicates the necessity for an inquiry, a preliminary inquiry may be conducted only to ascertain whether cognizable offence is disclosed or not. In para 120.7 of the said judgment, the Supreme Court held that such preliminary inquiry should be made time-bound and in any case it should not exceed 7 days and that the fact of such delay and the causes of it must be reflected in the General Diary entry.

    Subsequently, the same Constitution bench of the Supreme Court, vide its order dated 5 March 2014 had directed a minor modification in its aforesaid earlier order dated 12 September 2013 holding that a preliminary inquiry should be made time bound and in any case it should not exceed fifteen days generally and in exceptional cases, by giving adequate reasons, six weeks time is provided and the fact of such delay and the causes of it must be reflected in the General Diary entry.

    Barring this minor clarification issued subsequently, the main Lalita Kumari judgment is fully valid and binding, and as per this judgment if the information given to police discloses commission of a cognizable offence then registration of FIR is mandatory.
         


    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.

  • At present, there is no restriction for the purposes of contesting the elections for Legislative Assembly of State or for parliament, for a person against whom charge sheet has been filed or against whom charges have been framed in a criminal case. Such person can, therefore, contest Assembly elections.

    In this regard, please see the observations of the Supreme Court made on 17 February 2015, in which the Chief justice of India, Justice H.L. Dattu stated as under:

    “If we accept that persons against whom charges are framed should be prevented from contesting elections, it would result in a danger to the democratic polity and ethos of this country.”

    However, earlier directions had been issued by Supreme Court holding that prosecution of an elected representative (MP or MLA) should be expedited. Please see my following articles in this regard:

    (1) Expeditious criminal prosecution of sitting MPs and MLAs [http://www.tilakmarg.com/2014/05/expeditious-criminal-prosecution-of.html]

    (2) Confusing signals from SC on expeditious criminal prosecution of sitting MPs and MLAs [http://www.tilakmarg.com/2014/08/confusing-signals-from-sc-on.html].     


    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.

  • The fact remains that FIR was registered, even though it was subsequently quashed by the High Court. Therefore, if there is a column in the police verification requiring that details of all FIRs should be mentioned, then it should be mentioned. Secondly, in the column asking about disposal of the FIR, you can mention that the FIR was quashed on the ground that it was registered by the complainant due to misunderstanding.

    Likewise, if there is a column asking for details of pending criminal cases, there, of course, you can mention that no case is pending since this FIR was quashed.

    It is necessary that correct and full information is provided to the Government at the time of seeking employment, so that there are no complications in future.
         


    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.

Viewing 11 posts - 1,891 through 1,901 (of 1,901 total)