Forum Replies Created
July 11, 2016 at 11:33 am in reply to: What is the quorum for meetings of Board of Directors of a company? #326
Under the new Companies Act, 2013, the quorum for the meetings of Board of Directors of a company is laid down in Section 174. This section has been brought in force w.e.f. 1 April 2014 [vide Notification No. S.O. 902(E), dated 26-3-2014].
As per sub-section (1) of this section, the quorum for a meeting of the Board of Directors of a company shall be one-third of its total strength or two directors, whichever is higher. It is also laid down that the participation of the directors by video conferencing or by other audio visual means shall also be counted for the purposes of quorum under this sub-section.
Further, it is clarified in the Explanation to this section that while computing the quorum:
(i) any fraction of a number shall be rounded off as one;
(ii) “total strength” shall not include directors whose places are vacant.
Section 174 of the Companies Act, 2013, is reproduced below in full:
“174. Quorum for meetings of Board.—(1) The quorum for a meeting of the Board of Directors of a company shall be one-third of its total strength or two directors, whichever is higher, and the participation of the directors by video conferencing or by other audio visual means shall also be counted for the purposes of quorum under this sub-section.
(2) The continuing directors may act notwithstanding any vacancy in the Board; but, if and so long as their number is reduced below the quorum fixed by the Act for a meeting of the Board, the continuing directors or director may act for the purpose of increasing the number of directors to that fixed for the quorum, or of summoning a general meeting of the company and for no other purpose.
(3) Where at any time the number of interested directors exceeds or is equal to two-thirds of the total strength of the Board of Directors, the number of directors who are not interested directors and present at the meeting, being not less than two, shall be the quorum during such time.
Explanation.—For the purposes of this sub-section, “interested director” means a director within the meaning of sub-section (2) of Section 184.
(4) Where a meeting of the Board could not be held for want of quorum, then, unless the articles of the company otherwise provide, the meeting shall automatically stand adjourned to the same day at the same time and place in the next week or if that day is a national holiday, till the next succeeding day, which is not a national holiday, at the same time and place.
Explanation.—For the purposes of this section,—
(i) any fraction of a number shall be rounded off as one;
(ii) “total strength” shall not include directors whose places are vacant.”
July 9, 2016 at 2:25 pm in reply to: DEFENCE COUNSEL DURING CROSS EXMN COMPELL THE I.O TO REFER HIS CASE DIARY #321
Case Diary is a privileged document under Section 172 of Cr.P.C. Sub-section (1) of this section requires that:
“Every police officer making an investigation under this Chapter shall day by day enter his proceedings in the investigation in a diary, setting forth the time at which the information reached him, the time at which he began and closed his investigation, the place or places visited by him, and a statement of the circumstances ascertained through his investigation.”
As per a recent amendment made to Section 172 Cr.P.C. in the year 2009, now it is required that:
“The statements of witnesses recorded during the course of investigation under Section 161 shall be inserted in the case diary.”
Under Section 172, any Criminal Court may send for the police diaries of a case under inquiry or trial in such Court, and may use such diaries, not as evidence in the case, but to aid it in such inquiry or trial.
However, this section further provides that neither the accused nor his agents shall be entitled to call for such diaries, nor shall he or they be entitled to see them merely because they are referred to by the Court; but, if they are used by the police officer who made them to refresh his memory, or if the Court uses them for the purpose of contradicting such police officer, the provisions of Section 161 or Section 145, as the case may be, of the Indian Evidence Act, 1872, shall apply.
Therefore, the accused does not have a right to see the case diaries unless the police officer uses them to refresh his memory under Section 159 of the Evidence Act or unless the Court uses them for the purpose of contradicting such police officer.
The defence counsel cannot (directly) compel or instruct the police officer to refer to and reply from a case diary, unless the police officer has himself used the case diary to refresh his memory or unless the Court uses them for the purpose of contradicting such police officer, as mentioned above.
However, the court may have the power to ask the police officer to refer to the case diary. Other than the general provisions, there is a special provision in Section 165 of the Evidence Act, the relevant extract of which is reproduced below:
“The Judge may, in order to discover or to obtain proper proof of relevant facts, ask any question he pleases, in any form, at any time, of any witness, or of the parties, about any fact relevant or irrelevant; and may order the production of any document or thing; and neither the parties nor their agents shall be entitled to make any objection to any such question or order, nor, without the leave of the Court, to cross-examine any witness upon any answer given in reply to any such question:”
Therefore, sometimes, a defence counsel may request the court to ask the police officer a question about the contents of the case diary, and if the court is convinced it may ask such question. But, the defence counsel cannot ask such question directly to the police officer unless the condition mentioned in Section 172 Cr.P.C. is satisfied.
In this regard, I may point out that what I have mentioned above finds support from the following observations of the Supreme Court in the case of Shamshul Kanwar v. State of U.P., (1995) 4 SCC 430:
“The accused person is not entitled to require a police officer to refresh his memory during his examination in court by referring to the diary. At the most the accused can on a reasonable basis seek the court to look into the diary and do the needful within the limits of Section 172 CrPC. However, the court is not bound to compel the police witness to look at the diary in order to refresh his memory nor the accused is entitled to insist that he should do so. If there is such a refusal what inference should be drawn depends on the facts and circumstances of each case.”
Therefore, it should be clear that the defence counsel cannot compel the police officer to refer to the case diary and answer the question. However, if the police officer himself refreshes his memory or if the court uses the said case diary (as mentioned in Section 172 Cr.P.C.), in that case the accused may get the right to cross-examine on the case diary. The full observations of the Supreme Court in the above case of Shamshul Kanwar v. State of U.P., (1995) 4 SCC 430, are relevant in this regard:
“This section firstly lays down that every police officer making an investigation should maintain a diary of his investigation. It is well-known that each State has its own police regulations or otherwise known as police standing orders and some of them provide as to the manner in which such diaries are to be maintained. These diaries are called case diaries or special diaries. The section itself indicates as to the nature of the entries that have to be made and what is intended to be recorded is what the police officer did, the places where he went and the places which he visited etc. and in general it should contain a statement of the circumstances ascertained through his investigation. Sub-section (2) is to the effect that a criminal court may send for the diaries and may use them not as evidence but only to aid in such inquiry or trial. The aid which the court can receive from the entries in such a diary usually is confined to utilising the information given therein as foundation for questions to be put to the witnesses particularly the police witnesses and the court may, if necessary, in its discretion use the entries to contradict the police officer who made them. Coming to their use by the accused, sub-section (3) clearly lays down that neither the accused nor his agents shall be entitled to call for such diaries nor he or they may be entitled to see them merely because they are referred to by the courts. But in case the police officer uses the entries to refresh his memory or if the court uses them for the purpose of contradicting such police officer then provisions of Section 161 or Section 145, as the case may be, of the Evidence Act would apply. Section 145 of the Evidence Act provides for cross-examination of a witness as to the previous statements made by him in writing or reduced into writing and if it is intended to contradict him by the writing, his attention must be called to those parts of it which are to be used for the purpose of contradiction. Section 161 deals with the adverse party’s rights as to the production, inspection and cross-examination when a document is used to refresh the memory of the witness. It can therefore be seen that the right of accused to cross-examine the police officer with reference to the entries in the general diary is very much limited in extent and even that limited scope arises only when the court uses the entries to contradict the police officer or when the police officer uses it for refreshing his memory and that again is subject to the limitations of Sections 145 and 161 of the Evidence Act and for that limited purpose only the accused in the discretion of the court may be permitted to peruse the particular entry and in case if the court does not use such entries for the purpose of contradicting the police officer or if the police officer does not use the same for refreshing his memory, then the question of accused getting any right to use the entries even to that limited extent does not arise. The accused person is not entitled to require a police officer to refresh his memory during his examination in court by referring to the diary. At the most the accused can on a reasonable basis seek the court to look into the diary and do the needful within the limits of Section 172 CrPC. However, the court is not bound to compel the police witness to look at the diary in order to refresh his memory nor the accused is entitled to insist that he should do so. If there is such a refusal what inference should be drawn depends on the facts and circumstances of each case. Section 172 does not deal with any recording of statements made by witnesses and what is intended to be recorded is what the police officer did namely the places where he went, the people he visited and what he saw etc. It is Section 161 CrPC which provides for recording of such statements. Assuming that there is failure to keep a diary as required by Section 172 CrPC, the same cannot have the effect of making the evidence of such police officer inadmissible and what inference should be drawn in such a situation depends upon the facts of each case. It is well-settled that the entries of the police diary are neither substantive nor corroborating evidence and they cannot be used by or against any other witness than the police officer and can only be used to the limited extent indicated above. The above-stated principles are reiterated in many decisions rendered by the courts.”
In this regard, the detailed discussion on this issue in the case of Manu Sharma v. State (NCT of Delhi), (2010) 6 SCC 1 may also be seen in which the Supreme Court concluded by observing that the right of the accused in relation to the police file and the general diary is a very limited one and is controlled by the provisions.
Thus, the legal position in this regard is quite clear.
July 9, 2016 at 11:02 am in reply to: Regarding Judgment on Bombay High Court for 499 Defamation Against 498a False Ca #319
There appears to be no such case with these details. Judgments of Bombay high court of date 29.01.2015 are available at the following link, you may please check: https://indiankanoon.org/search/?formInput=fromdate%3A%2029-01-2015%20todate%3A%2029-01-2015%20doctypes%3Alaws%2Cbombay%2Ctribunals%2Cothers%2C
Alternatively, you can also check Bombay high court website (http://bombayhighcourt.nic.in/) and then click Court Orders to search for the required order / judgment.
July 7, 2016 at 3:35 pm in reply to: Collecting cheque return charges when cheque dishonoured #315
This is generally an issue between you (as a distributor) and your retailers, subject to any agreement between you. There is no specific mention of it in Section 138 of the Negotiable Instruments Act.
Generally speaking, you can claim all genuine expenses from your opposite party when they are due to the fault of the opposite party. If you are sending a notice for filing a case under Section 138 for cheque dishonour, you can mention about such expenses incurred by you (i.e., cheque return charges collected by bank).
July 6, 2016 at 4:30 pm in reply to: Offence under 498a, 307/34 IPC, 3/4 dowry prohibition act #310
If a bailable warrant is not successful in securing the presence of the accused, the court will generally issue the NBW (non-bailable warrant). You can engage an advocate and apply for cancellation of the NBW by undertaking to remain present before the court on the dates fixed. Even if NBW is executed and you are arrested and brought before the court, you can apply for bail at that time. Depending on facts and circumstances of the case, you may get bail. Since it appears from your questions that you are not familiar with basic legal procedures, I’ll advise you to engage some local advocate at your place so that you get immediate proper legal advice and are not taken by surprise on even petty issues.
Clause (b) of the Proviso to Section 138 requires as under:
“(b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within thirty days of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and”
Now, the notice of demand made and the same being sent by post are in the form of documentary evidence. The Evidence Act lays down how documentary evidence can be proved. Firstly, a document can be proved only by primary evidence (which means the production of the document itself), but in certain situations, it may be possible to produce secondary evidence also to prove a document (secondary evidence is of 5 types, including oral accounts).
Now, you say that the complainant has no postal proof of sending the notice. I think what you mean to say is that such postal proof is either destroyed or lost (if there is some other reason, please inform). In such a situation, firstly, you may try to approach the post office and try to get evidence from them, even if your own postal proof is lost. Now, presuming that the post office also does not have any records. Then, what to do? Well, such a situation is covered in Section 63(5) of the Evidence Act, which says that “oral accounts of the contents of a document given by some person who has himself seen it” is also secondary evidence, and in Section 65(c) of the said Act which says what type of secondary evidence can be given and how “when the original has been destroyed or lost”, and in such a case “any secondary evidence of the contents of the document is admissible”, which means that even “oral accounts of the contents of the document given by some person who has himself seen it” can be given in the form of secondary evidence.
Therefore, legally speaking, it should be permissible for the complainant to give evidence in the form of his own deposition in the court (in the form of his affidavit) by way of oral accounts of the postal proof. However, it may be a weak evidence and can be challenged in the cross-examination. How much value can be attached with such evidence will further depend on the facts and circumstances of the case and the way the court appreciates such evidence.
July 4, 2016 at 2:39 am in reply to: Offence under 498a, 307/34 IPC, 3/4 dowry prohibition act #307
There is nothing to stop you from filing application for quashing if you feel that no prima facie case is made out on the facts mentioned in the FIR / complaint.
It may not be possible to advise you without seeing the detailed papers.
However, let me add that you can first write to the society (if you have not done it already) about the factual situation and let them reply in writing instead of mere oral reply. You should try to find out whether the then Administrator acted fraudulently or it was a mere genuine mistake. Was the administrator acting in conspiracy with the seller?
Further, from the facts mentioned by you, it appears that the seller has misrepresented to you. He must have indemnified you for the defects in his title or for the misrepresentations. You may ask him to make good the losses due to such misrepresentations.
If the society bye-laws permit you to get the status of deemed member, then you may be entitled to the same. But, it depends what are the rights and liabilities of a deemed member. You may still be liable to pay the lawful society charges, as admissible under the bye-laws.
In case nothing works, you can of course, approach the appropriate forum / court for seeking the legal remedy, since it appears that you are a bona fide buyer for consideration. If you are forced to file a case, you’ll have to make society a party, and in addition, the then administrator may also be made party depending upon the detailed factual situation (i.e., replies received from society).
Generally speaking, if the administrator was acting in a bona fide manner, exercising his lawful powers on behalf of the society, the society may also be held responsible for his acts and at least you should not be made to suffer for somebody else’s fault. An outsider (i.e., a new buyer like you) may not always know about “indoor management” of the society and you can try to make use of the legal principles on the lines of the doctrine of indoor management.
Please consult some good lawyer at Mumbai who is well versed in society laws for proper guidance.
June 30, 2016 at 11:36 pm in reply to: Offence under 498a, 307/34 IPC, 3/4 dowry prohibition act #297
Supreme Court verdict is about arrest without warrant by police. Warrant issued by the Magistrate is a different thing.
Secondly, there are two types of warrants, bailable and non-bailable warrants. Generally, bailable warrant is issued initially, which means that if you agree to bail, you can sign bail bond and will not be arrested in case of a bailable warrant and instead of that you will undertake to appear in court on the dates given.
June 30, 2016 at 10:20 pm in reply to: Offence under 498a, 307/34 IPC, 3/4 dowry prohibition act #295
In a warrant case, the Magistrate has the power to directly issue warrant under Section 204(1)(b) of Cr.P.C. (please see below), and offence under Section 498-A of IPC is a warrant case:
“204. Issue of process.— (1) If in the opinion of a Magistrate taking cognizance of an offence there is sufficient ground for proceeding, and the case appears to be—
(a) a summons case, he shall issue his summons for the attendance of the accused, or
(b) a warrant case, he may issue a warrant, or, if he thinks fit, a summons, for causing the accused to be brought or to appear at a certain time before such Magistrate or (if he has no jurisdiction himself) some other Magistrate having jurisdiction.”
If you have evidence to support the charge of the judge being influenced, you can apply for transfer of case by giving proof.
June 28, 2016 at 9:12 am in reply to: Whether interest on Savings bank account exempted from Income Tax? #287
The answer to your question is covered in Section 80-TTA of the Income Tax Act, 1961. As per this section, interest on the Savings account is exempted from Income Tax up to the limit of ₹ 10,000 (ten thousand). Up to this limit, the interest on Savings account is not included in the gross income of the assessee. However, interest beyond ₹ 10,000 on Savings account will be included in the gross income for the purposes of taxation. For example, if the interest earned on Savings account is ₹ 25,000, then ₹ 15,000 only will be added to the income after accounting for the above deduction.
The above exemption / deduction is allowed to an individual or HUF. It is not available to a firm, an association of persons or a body of individuals.
The savings account can be in any bank, co-operative bank or in post office.
However, the above exemption / deduction is not available in respect of interest earned on the fixed deposits or time deposits, i.e., the deposits repayable on expiry of fixed periods.
June 25, 2016 at 2:26 pm in reply to: Offence under 498a, 307/34 IPC, 3/4 dowry prohibition act #285
It depends under what provisions she has filed the private complaint in the court. If it is under Section 156(3) Cr.P.C., then that may be for directing the police to register FIR and conduct investigation. If the private complaint is filed under Section 190 Cr.P.C., then the court may directly take up cognizance and then she (i.e., complainant) will have to examine her witnesses before the court, in which case the case will have to be proved by her. In the second situation, it will be more difficult for her to prove her case.
What you have mentioned is the evidence that you have on your side. Use this evidence as and when the need arises, whether during investigation or during court case. It is not possible to given any opinion on the evidence, unless one can go into details of the evidence of both sides. You should engage some local lawyer if you are not confident of conducting your own case and ask for his expert advice on issues in your mind by showing him detailed evidence.
June 25, 2016 at 11:31 am in reply to: Offence under 498a, 307/34 IPC, 3/4 dowry prohibition act #283
If the FIR is already registered by police, the case will be investigated by police. Depending upon the evidence, the case may be charge-sheeted or closed or it may be charge-sheeted only against some but not all accused. You may cooperate with police and show the evidence (that you may have) to prove your innocence. You’ll have to fight the case on merits. Many of such cases are ultimately compromised. So, you may consider that option also, preferably at the earlier stage itself.
Two FIRs for the same offence are not possible. But, during the investigation of the first FIR, if police finds that the complainant herself is the accused or that a different offence is made out (on the basis of evidence available) then it can file charge sheet against a different person (including the complainant, if necessary) and under different sections (such as 313 can be changed into 312). So, you should try that the relevant evidence comes on record during the investigation.
Merely because the offence is registered in the city where the other party resides, does not mean that the police will be influenced by them. You have to try your best to cooperate with police and show whatever evidence you have with you to the police. If need be, approach the appropriate court at the appropriate stage. My suggestion would be to engage a good local lawyer, since it appears that you have too many doubts.
Under the provisions of the Copyright Act, 1957, it is not mandatory to register copyright in any work. In fact, a careful reading of Section 13 of this Act shows that copyright may subsist even in an unpublished work in certain situations. Therefore, it is not necessary to register copyright in a work. It is optional.
Thus, if you so wish, you can make an application for registration of your copyright in the Register of Copyrights in accordance with the provisions of Section 45 of the said Act. But, it is optional and not mandatory. If you do such registration, then such registration may be a prima facie evidence of the particulars entered in such Register, i.e., it may be a prima facie evidence of your copyright.
However, if you don’t register your copyright in a work, you’ll have to provide some evidence to substantiate your claim of having copyright in that work if the need arises (such as in case of an infringement or a dispute).
It goes without saying that if your copyright in infringed, even if it be unregistered, you can bring an action in accordance with the provisions of the Copyright Act against the person who has violated it. Of course, you’ll have to provide evidence of subsisting of your copyright in that work.