[Dr. Ashok Dhamija]

Section 468 IPC is forgery for the purpose of cheating. If sale agreement and/or money receipt have fake signatures, then it is forgery. If this forgery was for the purpose of cheating (as you have said), then Section 468 IPC may be applicable.

Section 471 IPC may also be applicable if such forged document has been used as a genuine document, as you have stated.

Section 409 IPC is criminal breach of trust by banker, public servant, agent, broker, etc. Usually, Section 420 IPC and Section 409 IPC are not applicable together. In the facts mentioned by you, Section 409 IPC may not be applicable but Section 420 IPC may be applicable.

This is just a tentative reply on the basis of brief summary of facts mentioned by you. For more accurate opinion, you should consult some local lawyer by showing him relevant documents and sharing full detailed facts.

     

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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]

If you have filed an application under Section 340 Cr.P.C. with the court, then you have to check it from the court as to what is the stage of the enquiry in the application or what action has been taken on it. How can we tell you about such issues?

In the courts, there is always some delay (rather, a lot of delay), and you’ll have to have patience. Engage a local lawyer who can check the progress of the case and let you know.

Don’t ask such questions on this Forum which are not questions on point of law, but are on facts about which we cannot comment.

You have already been asking questions repeatedly on this or similar issue. Please refrain from asking repeated unnecessary questions.

     

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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]

Recently, with effect from 2 August 2018, the Negotiable Instruments Act has been amended and two sections 143A and 148 have been inserted in this Act. You can see these new sections at this link.

As per the newly inserted Section 148, in an appeal by the drawer against conviction under section 138, the Appellate Court may order the appellant to deposit a minimum of 20% of the fine or compensation awarded by the trial Court. It is provided that this amount shall be in addition to any interim compensation paid by the appellant under section 143A of the Act. This amount is required to be deposited within 60 days from the date of the order, or within such further period not exceeding 30 days as may be directed by the Court on sufficient cause being shown by the appellant.

     

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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]

Depending on the rules that are applicable to you, you may have to challenge your suspension in the appropriate court or tribunal. You have mentioned about CBSE school. But, it can be central school, a school under some state government, or a private school and that too it depends on in which state.

Depending on all these aspects, the relevant rules applicable to you would be different, as each state has different set of rules and within the same state also, different rules may be applicable to private schools.

My advice to you would be to contact some local lawyer at your place and consult him along with the relevant rules that are applicable to you. It may not be possible for an outsider to know about the relevant rules. Depending on the rules applicable, you can consider taking necessary action by approaching the appropriate court or tribunal (for example, if it is a central school, then the case may go to Central Administrative Tribunal or CAT).

You can check from your rules whether there is a provision for review of suspension periodically, i.e., after every 3 months or 6 months; and, also whether there is a time limit for initiation of disciplinary proceedings after order of suspension.

If the decision in the departmental enquiry is pending (though you said that you could not be found guilty), you can wait for some reasonable time for that.

You may please also a relevant judgment of the Supreme Court, which I have covered in my article: Suspension order not to extend beyond 3 months if charge-sheet is not served, says Supreme Court. This judgment was with regard to a central government employee, and it may or may not be applicable in your case, depending on your rules, but it will give some idea about the basic principles on this issue.

     

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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]

Provisions relating to setting aside of an ex parte decree are laid down in Order 9 Rule 13 of the Civil Procedure Code, which is reproduced at the end of this answer.

As this Rule shows, an ex parte decree can be set aside on any of the following grounds:

(1) If the defendant can satisfy the Court that the summons was not duly served. However, it may be noted that the Court shall not set aside a decree passed ex parte merely on the ground that there has been an irregularity in the service of summons, if the Court is satisfied that the defendant had notice of the date of hearing and had sufficient time to appear and answer the plaintiff’s claim.

(2) If the defendant can satisfy the Court that he was prevented by any sufficient cause from appearing when the suit was called on for hearing.

The ex parte decree can be set aside by the court by which this decree was passed. An application can be made to this Court for setting aside the ex parte decree.

Where such ex parte decree has been confirmed, reversed or modified by a superior court, such application for setting aside such decree can be made in such superior court.

Order 9 Rule 13 of the Civil Procedure Code:

“13. Setting aside decree ex parte against defendant.— In any case in which a decree is passed ex parte against a defendant, he may apply to the Court by which the decree was passed for an order to set it aside; and if he satisfies the Court that the summons was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the Court shall make an order setting aside the decree as against him upon such terms as to costs, payment into Court or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit:

Provided that where the decree is of such a nature that it cannot be set aside as against such defendant only it may be set aside as against all or any of the other defendants also:

Provided further that no Court shall set aside a decree passed ex parte merely on the ground that there has been an irregularity in the service of summons, if it is satisfied that the defendant had notice of the date of hearing and had sufficient time to appear and answer the plaintiff’s claim.

Explanation.— Where there has been an appeal against a decree passed ex parte under this rule, and the appeal has been disposed of on any ground other than the ground that the appellant has withdrawn the appeal, no application shall lie under this rule for setting aside that ex parte decree.”

     

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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]

The issue raised by you is covered in Rule 5 of Order 41 of the Civil Procedure Code, the relevant extract of which is reproduced below:

“5. Stay by Appellate Court.— (1) An appeal shall not operate as a stay of proceedings under a decree or order appealed from except so far as the Appellate Court may order, nor shall execution of a decree be stayed by reason only of an appeal having been preferred from the decree; but the Appellate Court may for sufficient cause order stay of execution of such decree.

Explanation.— An order by the Appellate Court for the stay of execution of the decree shall be effective from the date of the communication of such order to the Court of first instance, but an affidavit sworn by the appellant, based on his personal knowledge, stating that an order for the stay of execution of the decree has been made by the Appellate Court shall, pending the receipt from the Appellate Court of the order for the stay of execution or any order to the contrary, be acted upon by the Court of first instance.”

It should be clear from this Rule that the execution of the decree is not stayed merely because an appeal has been preferred from the decree. The stay has to be ordered by the appellate court. Thus, the Appellate Court can, for sufficient cause, order stay of execution of such decree. But, merely because of filing of an appeal, the execution of the decree is not stayed automatically and the execution can continue if there is no stay.

     

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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]

If the cheque is still within the period of its validity (which is generally 3 months), you can again deposit it in the bank and see if it is dishonoured again, and if yes, then you can follow the procedure mentioned in Section 138 of the Negotiable Instruments Act.

Otherwise, it is not possible to file the Section 138 complaint, if you had not given the notice to the drawer of the cheque within the stipulated period.

However, you can still file an appropriate civil suit for recovery of your amount due.

     

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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]

Your question on same / similar issue (Dissolved Committee members Operating Bank Account) has already been replied. Please do not repeat the question in a different language.

Even otherwise, as per our Forum guidelines, it is not possible for us to reply to detailed question on facts on the Forum since that generally requires examination of documents or detailed facts, which is beyond the scope of this Forum. It is not possible for us to confirm or counter your presumption, mentioned in your question, based on facts which are known to you.

     

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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]

Section 149 of the Civil Procedure Code gives discretion to the court to allow time for payment of deficient court fee to the person concerned:

“149. Power to make up deficiency of court-fees.— Where the whole or any part of any fee prescribed for any document by the law for the time being in force relating to court-fees has not been paid, the Court may, in its discretion, at any stage, allow the person, by whom such fee is payable, to pay the whole or part, as the case may be, of such court-fee; and upon such payment the document, in respect of which such fee is payable, shall have the same force and effect as is such fee had been paid in the first instance.”

Usually, a reasonable time is allowed by the court to pay the deficient court fee, and sometimes, more than one chances may be given by court. However, no specific time period is laid down in this regard and discretion has been given to court.

If the court fee is ultimately not paid, the court has the power to reject the plaint, application, etc. Just for example, Order 7 Rule 11 empowers the court to reject the plaint where the relief claimed is properly valued but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so.

So, you’ll have to request the court to take action of rejecting the application if your opposite party has failed in payment of requisite court fee in spite of time allowed by 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]

I don’t know whether you are from India or from USA.

If you are living in India, then you may be reading newspapers, etc., and may be aware that even if you personally visit the police station and give your complaint, it is not necessary that the police station will register the FIR even if a cognizable offence is actually made out. Police officers are infamous for avoiding to register FIRs and harassing the people. People run from pillar to post, and yet their complaints are not registered as FIRs. And, you want to send your FIR by registered post!!!

Well, technically, it should be possible to register FIR on the basis of information received by police about the commission of a cognizable offence. Even during old days, there were one or two judgments of courts to this effect.

But, given the way police in India works, the method of sending FIR by registered post will not work.

So, if you are really serious in getting the FIR registered, go to the police station personally and get it filed. The FIR is required to be registered urgently without wastage of time after the occurrence of crime. You already appear to have wasted time if the offence has already taken place.

     

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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]

If you can show that the FIR was registered falsely (i.e., the facts mentioned in the FIR are false) and that it was registered only because you acted as a whistleblower, it should be possible to file a writ petition in the high court challenging the FIR and your dismissal.

In the normal circumstances, the high court would not entertain a petition challenging registration of FIR. But, in certain exceptional situations, it may entertain such petition. So, if you are sure about your facts, you can try filing writ petition in the high 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]

Your question is vague. But, it appears that the judgment has been reserved in your case and you want to argue the case before the judgment is delivered.

Please note that the very fact that the judgment has been reserved, implies that the hearing of the case has already been completed and arguments have been heard already. At this stage, it may not be possible to argue the case again. But, if you have some very compelling reasons to do so, you may try making a request to the court to hear you by de-reserving the judgment. It is up to the court, depending on the circumstances, whether or not to agree to your request.

     

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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 appears from your question (though you have not mentioned it clearly) that the bank has made payment for supply of machinery to the supplier (towards loan given to you) while the supplier has not supplied the machine to you.

I don’t know what were the conditions for disbursal of loan amount to the supplier, i.e., whether the amount was to be disbursed to the supplier after actual delivery of the machine or even without that in advance. If it was to be paid to the supplier only after supply of the machine and if it has been paid to him even before the supply and the machine has also not been supplied, then it may even amount to an offence of cheating, etc.

In any case, if the machine is yet to be supplied for which the loan was taken and if the bank has already made the payment to the supplier, and in spite of such facts if the bank is taking action against you for non-payment of loan under SARFAESI (Securitisation and Reconstruction of Financial Assets and Enforcement of Securities Interest Act, 2002), then I think it should be possible to obtain stay against the action being taken by the bank. You should try that, if these are the facts, in consultation with your local lawyer.

     

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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]

A writ petition is not maintainable against the Supreme Court or against High Court in respect of their judicial functions. However, if there is a decision taken by the Supreme Court on its administrative side (such as some service matter of its employee), it can be challenged in a writ petition if otherwise such writ petition is maintainable. But, no writ can lie to Supreme Court against its judicial orders or some action taken by it in its judicial capacity.

I may point out that in the case of Rupa Ashok Hurra v. Ashok Hurra, (2002) 4 SCC 388 : AIR 2002 SC 1771, a Constitution bench of the Supreme Court held as under:

“…on principle a writ of certiorari cannot be issued to coordinate courts and a fortiori to superior courts. Thus, it follows that a High Court cannot issue a writ to another High Court, nor can one Bench of a High Court issue a writ to a different Bench of the same High Court; much less can writ jurisdiction of a High Court be invoked to seek issuance of a writ of certiorari to the Supreme Court. Though, the judgments/orders of High Courts are liable to be corrected by the Supreme Court in its appellate jurisdiction under Articles 132, 133 and 134 as well as under Article 136 of the Constitution, the High Courts are not constituted as inferior courts in our constitutional scheme. Therefore, the Supreme Court would not issue a writ under Article 32 to a High Court. Further, neither a smaller Bench nor a larger Bench of the Supreme Court can issue a writ under Article 32 of the Constitution to any other Bench of the Supreme Court. It is pointed out above that Article 32 can be invoked only for the purpose of enforcing the fundamental rights conferred in Part III and it is a settled position in law that no judicial order passed by any superior court in judicial proceedings can be said to violate any of the fundamental rights enshrined in Part III. It may further be noted that the superior courts of justice do not also fall within the ambit of State or other authorities under Article 12 of the Constitution.”

If your case is pending for long in the Supreme Court, your remedy would be to request the court to expedite the hearing by showing your urgency. Unfortunately, a large number of cases are pending in courts for long, so it may not be possible to give out of turn hearing to all pending matters. But, you can try making a request for expeditious hearing if your case is of urgent nature.

     

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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]

District Registrar or Sub-registrar are not “court”, as far as I understand and they do not have power under Section 340 of Cr.P.C. So, they cannot take any action for perjury.

If any other court has made inquiry under Section 340 Cr.P.C. against District Registrar, Sub-Registrar, document writers, etc., for perjury, then such court will take / initiate action (including criminal action) against them for perjury and you may not have to look up to these officers for action.

If perjury is merely your allegation at this stage, then approach the appropriate court where such forged documents have been submitted for taking action against them under Section 340 Cr.P.C.

And, if it is a matter merely of forged documents, but not of perjury, then you should file a complaint with police for registration of FIR and investigation. If police does not take action, then approach the Magistrate under Section 156(3) Cr.P.C.

It is noticed that you are asking repeated and vague / irrelevant questions on same or similar issues. Please do not do that.

     

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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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