Dr. Ashok Dhamija

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  • In such situation, where you have reasons to believe that the judge is not impartial or is biased, etc., while dealing with your case, you may make an application before the District Judge (if it is a civil case) or before the Sessions Judge (if it is a criminal case) for transferring your case from that judge to another judge under him, who may be competent to handle the case. The Civil Procedure Code and the Criminal Procedure Code, both have sufficient provisions for such transfer powers in civil cases and criminal cases, respectively.

    Moreover, if you have full proof of the bias and/or corruption of the judge concerned, you may also file a complaint with the high court (may be, perhaps with the vigilance wing of the high court, please check in your state).

         


    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.

  • The main issue in the case of disproportionate assets is that all the “known sources of income” [as defined in Explanation to Section 13(1)(e) of the Prevention of Corruption Act, 1988] and all “expenses” should be properly accounted for while computing the disproportionate assets.

    So, if gross salary is to be considered as income of the public servant, then all the deductions from such salary (such as GPF, Income Tax, etc.) should be separately shown as expenses. So, the resulting effect would be that only the net income would come into calculation.

    On the other hand, if the net salary (after accounting for the deductions) is considered as the income of the public servant, then such deductions cannot be shown separately as expenses, since they have already been considered once while calculating the net salary which was considered as income. In such a scenario, showing expenses separately also, would amount to double calculation of the expenses, which would be unjust and impermissible, since that would be unfair to the public servant who is accused of such an offence.

    In my view, the first option is the better way, i.e., to take gross salary as income of the public servant, but then showing all the deductions from salary as expenses separately. This is a more transparent method of accounting for the deductions in the computations for finding out the disproportionate assets of the public servant.

         


    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.

  • Yes, on many occasions, the whole or part of the fine amount imposed on accused in a cheque bounce under Section 138 of the Negotiable Instruments Act is awarded to the complainant to compensate him for the cheque amount.

    There is a specific provision in the Criminal Procedure Code that when a Court imposes a sentence of fine, the Court may order the whole or any part of the fine recovered to be applied, inter alia, in the payment to any person of compensation for any loss or injury caused by the offence, when compensation is, in the opinion of the Court, recoverable by such person in a Civil Court.

    So, whole or part of the fine amount imposed on accused in cheque bounce is generally paid as compensation the complainant for the cheque amount. It generally also obviates the need for filing a civil suit by the complainant for recovery of such amount.

         


    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.

  • Yes. An old stamp paper can be used for executing new documents. There is no expiry date for a stamp paper if it is otherwise a valid stamp paper. The six months limit on stamp paper is only for the purpose of claiming a refund from the Government if it is unused for that period. But, for using an old stamp paper in a document, there is no such limit of 6 months or any other time limit.

    This issue has been explained by the Supreme Court in the case of Thiruvengadam Pillai v. Navaneethammal, (2008) 4 SCC 530, wherein it was held that:

    “The Stamp Act, 1899 nowhere prescribes any expiry date for use of a stamp paper. Section 54 merely provides that a person possessing a stamp paper for which he has no immediate use (which is not spoiled or rendered unfit or useless), can seek refund of the value thereof by surrendering such stamp paper to the Collector provided it was purchased within the period of six months next preceding the date on which it was so surrendered. The stipulation of the period of six months prescribed in Section 54 is only for the purpose of seeking refund of the value of the unused stamp paper, and not for use of the stamp paper. Section 54 does not require the person who has purchased a stamp paper, to use it within six months. Therefore, there is no impediment for a stamp paper purchased more than six months prior to the proposed date of execution, being used for a document.”

    “The fact that very old stamp papers of different dates have been used, may certainly be a circumstance that can be used as a piece of evidence to cast doubt on the authenticity of the agreement. But that cannot be a clinching evidence. There is also a possibility that a layman unfamiliar with legal provisions relating to stamps, may bona fide think that he could use the old unused stamp papers lying with him for preparation of the document and accordingly use the old stamp papers.”

     

         


    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.

  • There are two situations in which the question needs to be answered separately.

    Firstly, it may be remembered that under Section 438 of the Cr.P.C., anticipatory bail can be granted by the Sessions Court as well as by the High Court. Such an application can be made before either of these courts. They have concurrent jurisdiction. Now, suppose the first anticipatory bail application was rejected by the Sessions Court, then definitely the second anticipatory bail can be filed before the high court.

    Secondly, now suppose the anticipatory bail application was rejected by say high court, then whether a second anticipatory bail application can be filed before the same high court? Or, if such application was first rejected by the Sessions Court, can a second such application be filed before the same Sessions Court? This is slightly different question.

    However, even in the second situation, a Full Bench of the Rajasthan high court [Ganesh Raj v. State of Rajasthan, 2005 Cri LJ 2086 (FB)] has held that a second anticipatory bail application can be filed in the following circumstances:

    “…second or subsequent bail application under Section 438 Cr.P.C. can be filed if there is a change in the fact situation or in law which requires the earlier view being interfered with or where the earlier finding has become obsolete. This is the limited area in which an accused who has been denied bail earlier, can move a subsequent application. Second or subsequent anticipatory bail application shall not be entertained on the ground of new circumstances, further developments, different considerations, some more details, new documents or illness of the accused.”

    In a recent case before the Supreme Court in Jagmohan Bahl v. State (NCT of Delhi), (2014) 16 SCC 501, the appellants had moved an application under Section 438 Cr.P.C. for grant of anticipatory bail which was dismissed by Sixth Additional Sessions Judge. Thereafter, appellants after expiry of three weeks filed second application under Section 438 Cr.P.C. Fourth Additional Sessions Judge allowed the same. The high court set aside the order of anticipatory bail. In this case, the Supreme Court observed that the Judge, who has declined to entertain the prayer for grant of bail, if available, should hear the second bail application or the successive bail applications. It is in consonance with the principle of judicial decorum, discipline and propriety. Needless to say, unless such principle is adhered to, there is enormous possibility of forum-shopping which has no sanction in law and definitely, has no sanctity. If the same is allowed to prevail, it is likely to usher in anarchy, whim and caprice and in the ultimate eventuate shake the faith in the adjudicating system. This cannot be allowed to be encouraged. The Supreme Court held that when the Sixth Additional Sessions Judge had declined to grant the bail application, the next Fourth Additional Sessions Judge should have been well advised to place the matter before the same Judge. In view of these, the Supreme Court concurred with the reasoning given by the High Court, but in the facts and circumstances of the case, it set aside the direction cancelling the order of anticipatory bail. Thus, from the observations of the Supreme Court, it clearly appears that a second anticipatory bail application can be filed, though it has observed that such second application should be handled by the same judge who had rejected it on the first occasion.

         


    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.

  • No. It is not applicable in such case. GST is exempted on an educational institution (whether run by a charitable institution or otherwise) for providing education to its students. This exemption is specifically covered in the list of exemptions approved by the GST Council in its meeting dated 19 May 2017.

         


    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.

  • in reply to: Can Power of Attorney give property on rent? #1722

    It actually depends on the contents of the power of attorney. If it is a general power of attorney in respect of that property, then the POA holder is legally empowered to sign the leave and licence agreement to give the property on rent.

    If the power of attorney is only for some specific purpose, then one has to see whether such specific purpose includes giving of such property on leave and licence basis. For example, if a specific power of attorney is given only for the purpose of selling the property (house), then the POA holder may not have the authority to give that house on leave and licence basis since his authority is limited only to sell the property.

         


    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.

  • The original documents that are taken by the Government at the time of initial appointment, are returned after verification. So, if you request the Government, such original documents would be returned to you.

    The only exception perhaps can be where the Government suspects that these original documents are forged or fake documents, in which case the original documents may be required for the purpose of further investigation and necessary action as per law. In fact, you have mentioned that you have been dismissed from the service, but you have not clarified on what grounds you were dismissed from service by the Government. Was this dismissal on account of any forged documents submitted by you? If yes, then such original documents may not perhaps be returned to you since they may be needed for further investigation.

    If this is not the case, then generally speaking, the Government would return your original documents on your request, if it has not done so already.

         


    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.

  • in reply to: Will court grant alimony even if wife does not want it? #1719

    Section 24 and 25 of the Hindu Marriage Act relate to interim maintenance (during pendency of the proceedings) and permanent alimony and maintenance, respectively. Both these sections basically speak about grant of such maintenance, etc., on application made to the court by wife or husband. Moreover, these sections also require that the income, etc., of the parties is to be taken into consideration.

    In your case, you have mentioned that your wife is earning and she has herself said that she does not want any maintenance or alimony. In these circumstances, as she herself does not want maintenance, alimony, etc., and she is employed also, there is no reason for the court to grant her any maintenance or alimony.

    In any case, since both of you have agreed to take divorce, it would naturally be a mutual consent divorce. So, as per your compromise, both of you can decide the terms and conditions for such compromise and you may clearly mention therein that no maintenance or alimony would be paid to the wife. In a mutual consent divorce case, the court will generally go by your own terms and conditions in the compromise arrived at by both of you. So, there would hardly be any chance for the court to award any maintenance or alimony to your wife when she is herself not interested in it.

         


    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.

  • in reply to: Validity of will which is not attested by witnesses #1718

    Section 63(c) of the Succession Act, 1925, requires as under:

    “(c) The will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the will or has seen some other person sign the will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgment of his signature or mark, or of the signature of such other person; and each of the witnesses shall sign the will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary.”

    It is thus necessary that a will should be attested by two or more witnesses in the manner as laid down in Section 63(c) above.

    Therefore, if a will is not attested by two or more witnesses as mentioned above, it would be invalid.

         


    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.

  • If the investigation is still pending and charge sheet is yet to be filed, then basically both the things will mean the same. If you get the FIR quashed, the criminal proceedings on the basis of such FIR will also get quashed or get over since FIR is the starting point. On the other hand, if the criminal proceedings are quashed, that also means that now the FIR is of no meaning since no proceedings are pending now.

    If the charge sheet has already been filed then it may be advisable to seek quashing of the criminal proceedings resulting out of such charge sheet. In such situation, you may even formally pray for quashing of the charge sheet also, along with the criminal proceedings.

    In fact, if the FIR is still under investigation, you may make a prayer something like this: “…the FIR No. **** of **** Police Station may please be quashed along with the quashing of the consequent criminal proceedings…”.

         


    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.

  • in reply to: Filing divorce petition in 3 months of the marriage #1712

    The general rule under Section 14 of the Hindu Marriage Act is that the court cannot entertain any petition for divorce, unless at the date of the presentation of the petition one year has elapsed since the date of the marriage. However, under the Proviso to this Section, the Court has been empowered to allow a petition to be presented before one year has elapsed since the date of the marriage on the ground that the case is one of exceptional hardship to the petitioner or of exceptional depravity on the part of the respondent, if an application is made to the court in accordance with such rules as may be made by the High Court in that behalf.

    So, you’ll have to check if any such rules have been made by the high court of your area and then in accordance with such rules, you may have to file the application showing as to how this case is one of exceptional hardship to the petitioner or of exceptional depravity on the part of the respondent. If these conditions are met, then it may be legally possible for the court to accept the petition for divorce even before the completion of one year from the date of marriage.

    Otherwise, as mentioned above, the divorce petition cannot be presented to the court before completion of one year from the date of marriage.

    Section 14 of the Hindu Marriage Act is reproduced below:

    14. No petition for divorce to be presented within one year of marriage.—(1) Notwithstanding anything contained in this Act, it shall not be competent for any court to entertain any petition for dissolution of a marriage by a decree of divorce, unless at the date of the presentation of the petition one year has elapsed since the date of the marriage :

    Provided that the Court may, upon application made to it in accordance with such rules as may be made by the High Court in that behalf, allow a petition to be presented before one year has elapsed since the date of the marriage on the ground that the case is one of exceptional hardship to the petitioner or of exceptional depravity on the part of the respondent, but if it appears to the Court at the hearing of the petition that the petitioner obtained leave to present the petition by any misrepresentation or concealment of the nature of the case, the court may, if it pronounces a decree, do so subject to the condition that the decree shall not have effect until after the expiry of one year from the date of the marriage or may dismiss the petition without prejudice to any petition which may be brought after the expiration of the said one year upon the same or substantially the same facts as those alleged in support of the petition so dismissed.

    (2) In disposing of any application under this section for leave to present a petition for divorce the expiration of one year from the date of the marriage, the Court shall have regard to the interests of any children of the marriage and to the question whether there is a reasonable probability of a reconciliation between the parties before the expiration of the said one year.”

     

         


    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.

  • in reply to: Regarding Consumer Case #1711

    As per Section 11 of the Consumer Protection Act, 1985, while considering the pecuniary jurisdiction of the District Forum, the value of the goods or services AND the compensation, if any, claimed, have to be considered together, and the total of these two should not be more than Rs. 20 lakh.

    In your case, if the value of the flat is Rs. 18 lakh and the compensation claimed is Rs. 2 lakh, then the total becomes Rs. 20 lakh. If this is only amount demanded by you, then it would be within the jurisdiction of the District Forum. But, if you demanded refund of the value of flat (Rs. 18 lakh) + INTEREST + compensation (Rs. 2 lakh), then the total becomes more than Rs. 20 lakh, where the State Consumer Forum will have the jurisdiction and not the District Forum.

         


    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.

  • Yes, both these proceedings are possible under law. One is to punish for the criminal offence of Section 138 of the Negotiable Instruments Act for dishonour of the cheque. And, the other is to recover the amount of debt due from the party. These are for different purposes.

    In fact, in the case of D. Purushotama Reddy v. K. Sateesh, (2008) 8 SCC 505, the Supreme Court has held that:

    “A suit for recovery of money due from a borrower indisputably is maintainable at the instance of the creditor. It is furthermore beyond any doubt or dispute that for the same cause of action a complaint petition under terms of Section 138 of the Act would also be maintainable.”

    However, the Supreme Court further observed that:

    “In terms of sub-section (1) of Section 357 of the Code, a criminal court is empowered to direct that out of the amount recovered from an accused by way of fine, compensation of a specified amount may be directed to be paid for any loss or injury caused by the offence, when compensation is, in the opinion of the court, recoverable by a person in a civil court. It is, therefore, evident that the amount of compensation could have been directed to be paid by the criminal court as the same was recoverable by the respondent as against the appellants in a civil court also. Such an order can also be passed by the appellate court or by the High Court or by the Court of Session when exercising its power of revision.”

    “Evidently, a duty has been cast upon the civil courts to take into account the sum paid or recovered as compensation in terms of Section 357 of the Code.”

    I may point out that, thus, while both the proceedings are possible (i.e., cheque bounce case under Section 138 as well as civil suit for recovery of money due), generally in practice only Section 138 case is filed by most people since this is a faster way of getting justice and also since if this case succeeds then generally the court will award fine / compensation equivalent to the amount of the cheque, which will obviate the need for filing of the civil suit for recovery of money.

         


    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.

  • in reply to: How to stop a child marriage? #1709

    You may first try to convince your maid servant and her family against such child marriage. If they do not listen to you, and if need be, you can file a complaint before the court of the Judicial Magistrate of First Class or the Metropolitan Magistrate (as the case may be) under Section 13 of the Prohibition of Child Marriage Act, 2006. Under this Section 13, on an application of the Child Marriage Prohibition Officer or on receipt of information through a complaint or otherwise from any person, if a Judicial Magistrate of the first class or a Metropolitan Magistrate is satisfied that a child marriage in contravention of this Act has been arranged or is about to be solemnised, such Magistrate shall issue an injunction against any person including a member of an organisation or an association of persons prohibiting such marriage. A complaint under this Section may be made by any person having personal knowledge or reason to believe, and a non-governmental organisation having reasonable information, relating to the likelihood of taking place of solemnisation of a child marriage or child marriages.

    It may be noted that any child marriage solemnised in contravention of an injunction order issued under Section 13, whether interim or final, shall be void ab initio.

    Further, Whoever knowing that an injunction has been issued under Section 13 against him disobeys such injunction shall be punishable with imprisonment up to two years or with fine which may extend to one lakh rupees or with both (however, no woman shall be punishable with imprisonment).

    It is also noteworthy that under Section 11 of this Act, where a child contracts a child marriage, any person having charge of the child, whether as parent or guardian or any other person or in any other capacity, lawful or unlawful, including any member of an organisation or association of persons who does any act to promote the marriage or permits it to be solemnised, or negligently fails to prevent it from being solemnised, including attending or participating in a child marriage, shall be punishable with rigorous imprisonment which may extend to two years and shall also be liable to fine which may extend up to one lakh rupees (however, no woman shall be punishable with imprisonment).

    And, under Section 10 of the Act, whoever performs, conducts, directs or abets any child marriage shall be punishable with rigorous imprisonment which may extend to two years and shall be liable to fine which may extend to one lakh rupees unless he proves that he had reasons to believe that the marriage was not a child marriage.

         


    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.

Viewing 15 posts - 1,471 through 1,485 (of 2,072 total)