Dr. Ashok Dhamija
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Dr. Ashok DhamijaAdvocateOne of the main requirements for a cheque bounce case under Section 138 of the Negotiable Instruments Act is that the cheque should have been issued for the discharge, in whole or in part, of any debt or other liability. In your case, if the cheque has been presented to the bank by a complete stranger, as you have mentioned, then there would be no financial transaction between the two of you, and there would be no debt or other liability. So, you can take this defence and it would not be possible to prove the case of cheque dishonour against you.
Secondly, while you have mentioned that you lost your cheque book or that it became missing, you have not clarified as to whether you had put your signatures on those blank cheques. If you had not signed those blank cheques, then the signatures (and, may be even handwriting) on the cheque which is presented to the bank, would be forged signatures. So, you can get such cheque examined by scientific expert and file a complaint of forgery and cheating if the facts support such contention.
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. List of his YouTube Videos.
August 12, 2017 at 8:39 am in reply to: Transfer of the case from district Court to High Court #2598Dr. Ashok DhamijaAdvocateIt is not possible to get the divorce case transferred to the high court. It has to be conducted in the court where the original jurisdiction lies. The high court does not have the jurisdiction to conduct such case in original jurisdiction. Of course, once the divorce case is decided by the district court / family court, the appeal may lie to the high court. But the first court to decide a divorce case is not the high court, as laid down in law.
Secondly, even in the high courts, there is a lot of pendency and matters take years to get decided.
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. List of his YouTube Videos.
August 12, 2017 at 8:34 am in reply to: False case by mother against her son and his wife u/s 420 and pretend as pauper #2597Dr. Ashok DhamijaAdvocateThe best solution in such cases is, of course, an amicable settlement between the two sides, since the opposite party is your own mother.
That said, if you feel that an amicable settlement is not possible, you’ll have to fight the cases on merits. Nobody can generally restrain a person from filing a fresh case against someone else. Such case, as and when filed, has to be fought on merits. Sometimes, counter-cases are filed to put pressure, but then it multiplies the litigation though sometimes it may lead to amicable settlement if both parties are facing cases and want to get rid of the same.
In the given facts, if you want, you may consult your lawyer to explore the possibility of filing a case of perjury against the opposite party.
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. List of his YouTube Videos.
August 12, 2017 at 8:26 am in reply to: matrimonial status of the parties when the said marriage declared as null & void #2596Dr. Ashok DhamijaAdvocateWhen a marriage is declared as null and void, it is effaced completely. A void marriage is invalid since the beginning, as if the marriage did not exist. So, declaring the marriage null and void means the marriage is completely cancelled or erased in law. It is quite different from divorce.
Of course, after a marriage is declared as null and void, both parties have the status of being unmarried or single and not that of divorcee.
At the same time, while the legal status is no doubt that of “unmarried” or “single”, it may be desirable that such person transparently explains before marrying a different person about his previous marriage having been declared as null and void. While the legal status is not in doubt, the fact remains that the marriage had taken place and it was declared as null and void by court intervention; and it is desirable that these facts be informed and not concealed.
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. List of his YouTube Videos.
August 12, 2017 at 8:12 am in reply to: after 4 month leaving matrimonial home can a wife lodge fir in 498a 377 307 505 #2595Dr. Ashok DhamijaAdvocateIf possible, you may try to sort out the matter amicably. If both parties can arrive at a compromise, then all cases may be withdrawn / compounded and you may agree for a mutual consent divorce, or may be the marriage may be declared null and void under Section 12 of the Hindu Marriage Act (since you appear to have filed a case under this section).
If there is no compromise between the two parties, you’ll have to fight the case on merits. Consult your lawyer on facts of the case.
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. List of his YouTube Videos.
August 11, 2017 at 8:08 am in reply to: Making request for preponing the court date by filing an application #2588Dr. Ashok DhamijaAdvocateUsually, the courts do not consider requests for preponing the next date, though requests for postponing the court date (i.e., adjourning the date further) may be accepted. This is because all the parties are already notified about the next date and preponing it may need notice to them, etc., and the court’s own schedule may also be disturbed. But, if you want to try, you may file an application in the court for expediting the case by giving an early date for hearing, by giving reasons for such request, and after giving notice to the other parties in the case; it is up to the court whether or not to agree to your request.
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. List of his YouTube Videos.
August 11, 2017 at 8:01 am in reply to: What to do if there is delay in issuing notice for cheque bounce? #2587Dr. Ashok DhamijaAdvocateThe payee is required to issue notice to the drawer of the cheque within 30 days of getting the information from the bank about cheque dishonour. In your case, you have said that a period of 3 months have lapsed. Therefore, now if you issue such notice, it would not satisfy the legal requirements. Therefore, now it would not be possible for you to file a cheque bounce case.
Since 3 months’ period has lapsed, the cheque may already be beyond its validity period, due to which it may not be possible for you now to deposit the cheque for second time.
But, you can file a summary suit for recovery of the money in the civil court. Moreover, if in the facts of your case, an offence under Section 420 IPC can be made out, you can try that too [see: Can cheating case under Section 420 IPC be filed in cheque bounce?].
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. List of his YouTube Videos.
Dr. Ashok DhamijaAdvocate(1) As far as I understand, if the original memory card is produced on which the voice is recorded originally, it should be sufficient since this is the primary evidence. No need to produce the DVR in such case. Also, no need to give certificate under Section 65-B of Evidence Act in such case, since it is the primary evidence itself.
(2) I think, generally, it is the memory card, etc., where the voice is recorded which is the subject of scientific analysis. If you are referring to requirements of Section 65-B of the Evidence Act for the purposes of secondary evidence, then the DVR would be equivalent to “computer” referred to in that section; the certificate has to mention that the DVR was working properly, etc., as required under Section 65-B(2) of the Evidence Act.
(3) Section 65-B(4)(b) requires “giving such particulars of any device involved in the production of that electronic record as may be appropriate for the purpose of showing that the electronic record was produced by a computer”. Therefore, you may have to sufficiently identify the DVR used in the process.
(4) It is advisable to do so, but if my information is correct it is not mandatory in law. Just last week, I saw a case from a southern state where it had not been done. It appears that different investigating agencies in India are using different processes in this regard.
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. List of his YouTube Videos.
Dr. Ashok DhamijaAdvocateI have replied to a similar question in detail earlier and my reply is available at this link: Can I change my advocate without his no objection certificate (NOC)?
So, usually, when you want to change your advocate, you may need the consent or “no-objection” from the existing advocate for engaging a new advocate in his place. However, if he refuses to give the “no-objection”, you may request the court, where the case is pending, for permission to change your advocate, which is generally granted by the court, subject generally to your paying the (due or remaining) professional fee to the existing advocate if the advocate insists.
NCDRC should be no exception to this general rule. I did not find any contrary rule in this regard on the NCDRC website or under its rules. If your advocate is refusing to give the NOC, you must request the NCDRC to give you permission to change the advocate. NCDRC is expected to give you permission for this purpose, subject to above condition, i.e., payment of any remaining professional fee to the present advocate, if any. I don’t think NCDRC will refuse to give you such permission, but in case it does, you’ll have to approach the higher court; and, in such case, if needed, you may withdraw / terminate the vakalatnama of your existing advocate and you may file also a complaint against the advocate concerned with his State Bar Council if he refuses to give his NOC without any valid reason.
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. List of his YouTube Videos.
Dr. Ashok DhamijaAdvocateAs per Section 14 of the Partnership Act, 1932, which deals with what constitutes partnership property, partnership property consists of property originally brought in by the individual partners as their capital contribution and/or it may also consist of property purchased by the partners jointly out of the funds belonging to the partnership firm. Please remember that unlike a company, a partnership firm is not a separate legal entity.
As far as I understand when a partner brings in his property as his capital contribution in the partnership firm, there is no need for a sale deed, but it must be reflected in the deed of partnership or if it is brought in subsequently it should be properly reflected in the books of the partnership as the capital brought in by that partner. In such situation, it would be helpful if the partnership firm is registered.
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. List of his YouTube Videos.
Dr. Ashok DhamijaAdvocateThe offence of adultery is defined under Section 497 of the Indian Penal Code (IPC). This section is reproduced below:
“497. Adultery.—Whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another man, without the consent or connivance of that man, such sexual intercourse not amounting to the offence of rape, is guilty of the offence of adultery, and shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both. In such case the wife shall not be punishable as an abettor.”
It can clearly be seen from this section that the wife, who indulges in the act of adultery, shall not be punishable for this offence. It is only other male person with whom she has sexual intercourse, who can be punished under Section 497 IPC.
Please also see: Adultery under S. 497 IPC whether violative of right to equality? In this article, I have explained how the above unequal treatment has been held to be not violative of the right to equality guaranteed under the Constitution of India. Therefore, Section 497 IPC has been held to be a valid section under the Constitution of India.
In view of the above, FIR for the offence of adultery under Section 497 IPC cannot be registered against the wife of your friend Vijay. However, your friend Vijay can file complaint under Section 497 IPC against other men with whom his wife was alleged to have had sexual intercourse. Such other men can be punished for this offence.
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. List of his YouTube Videos.
Dr. Ashok DhamijaAdvocateBailable warrant is issued by the court under Section 71 of the Cr.P.C. This section provides that: “Any Court issuing a warrant for the arrest of any person may in its discretion direct by endorsement on the warrant that, if such person executes a bond with sufficient sureties for his attendance before the Court at a specified time and thereafter until otherwise directed by the Court, the officer to whom the warrant is directed shall take such security and shall release such person from custody.”
The endorsement made by the court mentions about (a) the number of sureties; (b) the amount in which they and the person for whose arrest the warrant is issued, are to be respectively bound; (c) the time at which he is to attend before the Court.
Therefore, a bailable warrant basically means that if the person against whom such warrant has been issued is willing to execute the bond with the sureties (as mentioned in the warrant), he shall be released on bail immediately by the police officer.
In your case, you have stated that the bailable warrant has been issued and a surety of Rs. 10,000 has been mentioned therein. So, you should keep a surety of Rs. 10,000 ready with you and you will be released on bail at the time of execution of the aforesaid bailable warrant. Thereafter you will have to attend the court at the specified time and on subsequent dates as directed by the 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. List of his YouTube Videos.
August 9, 2017 at 3:03 pm in reply to: What type of charges in vehicle accident causing death and injuries #2574Dr. Ashok DhamijaAdvocateIn such type of case, charges under Sections 279, 304A, 337, 338 of the Indian Penal Code (IPC) may be applicable against the driver of the car. In addition, if there is any violation of the provisions of the Motor Vehicles Act, such as driving without license, drunken driving, etc., those specific charges may also be levelled against the driver.
All the above four sections of IPC, namely, Sections 279, 304A, 337, 338 of the Indian Penal Code, are bailable offences.
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. List of his YouTube Videos.
August 9, 2017 at 10:14 am in reply to: Order under section 156(3) CRPC set aside by high court but FIR already lodged #2572Dr. Ashok DhamijaAdvocateWhile it is not possible to comment on the order of the High Court without actually seeing the detailed order, from what you have mentioned it appears that the High Court has not quashed the FIR. It appears that the order passed by the magistrate under Section 156(3) of the Cr.P.C. might have been a brief order without giving detailed reasons, due to which the High Court might have directed the magistrate to give detailed reasoning. It is also not known from your question as to whether the accused person, in his petition, had brought to the notice of the High Court that an FIR had already been registered by the police on the basis of the order of the magistrate. If this fact had been specifically brought to the notice of the High Court and in spite of this, if the High Court has not passed any specific order with regard to quashing of the FIR, then it would have to be considered that the FIR continues to be valid and has not been quashed. Other than what has been mentioned above, it is difficult to say anything specific unless one goes through the detailed order of the High Court and unless one knows full facts of the case.
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. List of his YouTube Videos.
Dr. Ashok DhamijaAdvocateIf you genuinely believe that there is a reasonable apprehension that the judge would not be impartial and that he could favour the opposite party, you (or your advocate) may request that the judge orally to recuse from the case, and if necessary, you may even file an application before him. If he refuses to recuse from the case, you have the option of filing a transfer petition before the district judge, giving detailed reasons for which you want the transfer of the case from the court of that judge to that of another.
However, you should not make a request for recusal of the judge or for transfer of the case on mere speculation or for merely a fear. It should be on the basis of some actual reasonable apprehension that justice would not be done in the case and that the judge would not be impartial.
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. List of his YouTube Videos.
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