[Dr. Ashok Dhamija]

Section 41-A of the Criminal Procedure Code came into force with effect from 1 November 2010. It has to be implemented from that date itself.

There is nothing in the judgment of the Supreme Court in the case of Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273 : AIR 2014 SC 2756 : 2014 Cri LJ 3707, which requires that Section 41-A Cr.P.C. has to be implemented only from the date of the said judgment.

     

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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 Dhamija]

It depends on the facts and circumstances of each case. If the company subsequently discovers misappropriation of its funds, which shows criminality in the acts committed, it may file an FIR with the police against the past employee. There is no legal bar on this. Issuance of a no-dues certificate may not come in the way of a criminal case if there is evidence to support the same and if such offence is discovered subsequently.

     

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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 Dhamija]

You may file a protest petition in the court where the closure report has been filed by the police after completion of the investigation. If the court is convinced with the grounds mentioned in your protest petition, further investigation may be directed by the court or the court may take cognizance of the case directly without asking for a further investigation.

You may also meet the senior police officers (such as Superintendent of Police in the district and DCP in a city) and inform them about the faulty investigation. Under Section 173(8) of the Criminal Procedure Code, the police has the power to conduct further investigation even after submission of a final report in the court.

     

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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 Dhamija]

This is a common practice in India. Delay in trials is ubiquitous. The courts have also got used to such delays and routinely grant adjournments. So, you may have to wait patiently for some time.

Generally, the court may allow 2-3 opportunities to a witness to depose in the court. Thereafter, even a bailable warrant (or even a non-bailable warrant sometimes) may be issued to secure the presence of the witness; or, sometimes, the evidence of the witness may be dispensed with.

Also remember that if a witness (in this case, your wife) takes too much liberty with the court and unnecessarily avoids appearing in court on several dates, he or she will lose the sympathy of the court and his or her evidence may not inspire confidence in the eyes of the court. So, a long delay by your wife in giving her evidence in court may ultimately harm her own interests in the Section 498A IPC filed against you.

At the same time, you should be ready with your cross-examination of your wife, as and when she appears for the evidence in court, so that you could cross-examine her immediately after her examination-in-chief. Otherwise, if you seek time for the cross-examination and she does not appear on time thereafter, you may lose further time to get her evidence completed.

     

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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 Dhamija]

For his promotion, such government servant may have to wait for the completion of the court case.

Sealed cover procedure is generally followed for considering the promotion of the following Government servants / officers:

(a) Officers under suspension;

(b) Officers in respect of whom a chargesheet has been issued and disciplinary proceedings are pending;

(c) Officers in respect of whom prosecution for criminal charge is pending.

For the purposes of promotion, the Screening Committee or the Selection Committee assesses the suitability of the officers coming within the purview of the circumstances mentioned above, along with other eligible candidates, without taking into consideration the disciplinary case / criminal prosecution which is pending. The assessment of the Committee and the grading awarded by it is to be kept in a sealed cover.

The same procedure is required to be adopted by the subsequent Screening Committees / Selection Committees till the disciplinary case / criminal prosecution against the officer concerned is concluded.

This sealed cover is opened only on the conclusion / completion of the disciplinary case or the court case, as the case may be. As per the guidelines, if the proceedings of the Selection Committee for promotion contain findings in a sealed cover, on conclusion of the disciplinary case/criminal prosecution, the sealed cover or sealed covers shall be opened. In case the officer is completely exonerated, the due date of his promotion will be determined with reference to the findings of the Screening Committee kept in sealed cover/covers and with reference to the date of promotion of his next junior on the basis of such findings. The officer shall be promoted even if it requires to revert the junior-most officiating person. Such promotion would be with reference to the date of promotion of his junior and in these cases, the officer will be paid arrears of salary and allowances.

If a penalty is imposed on the officer as a result of the disciplinary proceedings or if he is found guilty in the criminal prosecution against him, the findings of the sealed cover/covers shall not be acted upon. His case for promotion may be considered by the next Screening Committee in the normal course, having regard to the penalty imposed on him. In such cases, the question of arrears may be decided by taking into account all the facts and circumstances of the disciplinary/criminal proceedings. Where arrears of salary or a part thereof are denied, the reasons for doing so shall be recorded.

Thus, as per the guidelines, a government servant facing a prosecution in a court, may have to wait for the completion of the court case for getting his promotion, since the aforesaid sealed cover procedure is used to consider his promotion, and this sealed cover is opened only after the conclusion of the criminal prosecution / court case.

     

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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 Dhamija]

Yes, the high court can refer the divorce matter for mediation during the appeal stage. There is no legal bar for this.

You can make a request to the high court in this regard if you feel that there is scope for a successful mediation and successful resolution of the problem with your wife.

If a compromise is finally arrived at between the two parties, the high court can pass order on the basis of such compromise on which both parties consented.

     

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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 Dhamija]

Usually the cross-examination of a witness is conducted immediately after his examination in chief. However, the court has the power to defer the cross-examination if there are genuine reasons for doing so. There is no hard and fast rule in this regard. You may make a request to the court citing your difficulty. The court may perhaps agree. Else, you may request for deferring the examination of the new witnesses till you get a new advocate.

     

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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 Dhamija]

Since you have filed a review petition in the high court, you should try to get a stay order from the high court against the order to pay Rs. 25 lakh as permanent alimony. Otherwise, try for an early disposal of your review petition.

In the absence of a specific stay order, the lower court would generally insist on the implementation of the order. If the lower court agrees, you may try to request the court that your review petition is pending hearing and during such pendency the order be not implemented since otherwise your review petition would become infructuous. Chances of the lower court agreeing to this in the absence of a specific stay order are less, but you can try that if there is no alternative.

You can approach the Supreme Court only after disposal of the review petition by the high court (if the order is unfavourable to you). During the pendency of the review petition in the high court, it will not be possible to approach the Supreme Court.

Another option could be to withdraw the review petition from the high court if you feel that you are not likely to get a favourable order and if the high court is not inclined to grant stay order on the permanent alimony and if it is taking time to decide the review petition. In such scenario, you can approach the Supreme Court by filing a Special Leave Petition (SLP) after withdrawal of the review petition. But, then, you’ll have to take a decision in this regard after taking all aspects into consideration and it should not be done in a casual manner.

     

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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 Dhamija]

As per the provisions of Rule 10(6) of the Central Civil Services (Classification, Control and Appeal) Rules, 1965, an order of suspension made shall be reviewed by the authority competent to modify or revoke the suspension, before expiry of 90 days from the effective date of suspension, on the recommendation of the Review Committee constituted for the purpose and pass orders either extending or revoking the suspension. It has been further provided in the above Rule that subsequent reviews shall be made before expiry of the extended period of suspension (which means 180 days). Extension of suspension shall not be for a period exceeding 180 (one hundred and eighty) days at a time.

Further, Rule 10(7) provides that an order of suspension made shall not be valid after a period of 90 (ninety) days unless it is extended after review, for a further period before the expiry of ninety days :

In view of the above statutory provisions, if your suspension has been continued beyond 90 days without reviewing it, as required under the above rules, then such suspension shall be invalid. You will have to challenge such suspension in the Central Administrative Tribunal (CAT) by filing an Original Application.

     

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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 Dhamija]

You have not clarified as to whether the judgments in criminal and civil cases are out of the same matter. Moreover, on what issue the judgments are different, that is also not specified.

In general, if the such judgments arose out of the same matter or issue, you may have to challenge the judgment that goes against you. You may bring the judgment of one court to the knowledge of the other court and/or use the reasoning / grounds for that judgment in the other court.

     

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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 Dhamija]

Since the charge sheet has already been filed against you, if you are arrested or taken into custody by the court, you may have to apply for regular bail.

As regards filing of discharge application, if you feel that there is not even a prima facie case against you to frame charges, then you may try filing a discharge application.

     

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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 Dhamija]

Please read Impact of closing of account on cheque bouncing case – whether Section 138 attracted, wherein I have explained that after issuing a cheque, if the account is closed by the drawer and due to this reason, the cheque is dishonoured, an offence of cheque bouncing under Section 138 of Negotiable Instruments Act, 1881, may still be attracted, provided other ingredients of this offence are satisfied.

Now, if the cheque is issued on a closed account, i.e., an account which is already closed, then also the offence under Section 138 of the Negotiable Instruments Act will be made on it getting dishonoured. This is because the amount of money standing to the credit of “that account” was “nil” at the relevant time (due to it being closed). Closure of the account means the entire amount in the account is withdrawn. It means that there was no amount in the credit of “that account” on the relevant date when the cheque was presented for honouring the same. Thus, there was insufficient or no fund to honour the cheque in “that account”.

In view of this, if a cheque is issued on a closed account, the offence of cheque bounce is made out. In fact, in such a situation, even an offence of cheating under Section 420 IPC may also be made out in certain circumstances.

     

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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 Dhamija]

In the facts stated by you, the cheque has been returned due to insufficiency of funds. In view of this, the cheque bounce case would be made out under Section 138 of the Negotiable Instruments Act.

     

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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 Dhamija]

It is noteworthy that Section 389 of the Criminal Procedure Code provides for the power of the appellate court to suspend the execution of the sentence or order appealed against.

But, the experience shows that generally the high court will not suspend the conviction in a corruption case during pendency of the appeal against conviction. However, the execution of the sentence may generally be suspended during the appeal.

In view of this reason, usually, the public servant may be dismissed or removed from service after his conviction in a corruption case even during the pendency of the appeal against such conviction.

     

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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 Dhamija]

It is a basic principle of criminal law that generally the FIR can be filed even by a stranger, who knows about the commission of a cognizable offence.

Section 190 of the Criminal Procedure Code also clearly mentions that cognizance of an offence may be taken by the Magistrate on the basis of information received from any person.

If the company does not exist any more (since it has been struck off the records, as you have mentioned), then it is no more recognized in law and is not a “legal person”. But the complaint about the theft and criminal trespass can be filed by any person who is personally aware of the commission of these offences. It is not necessary that only the company should file such FIR.

     

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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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