Dr. Ashok Dhamija
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January 8, 2019 at 8:42 pm in reply to: Central Crime Branch dit not implement Crpc 211section 4,213. #5247
Dr. Ashok DhamijaAdvocatePlease do not ask repeated and vague / irrelevant questions on same or similar issues. This may compel us to block the user.
How can the Central Crime Branch have powers under Sections 340 (perjury), 211 and 213 of the Criminal Procedure Code. These powers are not with police but with court.
Please do not ask such illogical questions. Otherwise, we shall have no option but to block the user.
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 DhamijaAdvocatePlease do not ask repeated and vague / irrelevant questions on same or similar issues. This may compel us to block the user.
It is not possible to comprehend your question. When the police station has registered the FIR, how is SP supposed to deal with that? It is the duty of the police station to investigate the case and take it to logical conclusion. It the police station failed to do so, and if you complained to the SP, then you should have mentioned that.
What do you mean by “didn’t action against IPC 387 non bailable offence”? It was not chargesheeted or the accused was not arrested or what?
Any way, if police fails to take action in an investigation such as not charge-sheeting, you may file a protest petition in the Magistrate court after filing of final report by police. Otherwise, you can approach the high court under Section 482 Cr.P.C.
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 DhamijaAdvocateIt is not possible for the same person to file two FIRs in the same incident. However, counter-FIRs can be filed in the same incident by opposite parties.
In the case of Surender Kaushik v. State of U.P., (2013) 5 SCC 148, it was held that:
“…the lodgment of two FIRs is not permissible in respect of one and the same incident. The concept of sameness has been given a restricted meaning. It does not encompass filing of a counter-FIR relating to the same or connected cognizable offence. What is prohibited is any further complaint by the same complainant and others against the same accused subsequent to the registration of the case under the Code, for an investigation in that regard would have already commenced and allowing registration of further complaint would amount to an improvement of the facts mentioned in the original complaint. As is further made clear by the three-Judge Bench in Upkar Singh [Upkar Singh v. Ved Prakash, (2004) 13 SCC 292], the prohibition does not cover the allegations made by the accused in the first FIR alleging a different version of the same incident. Thus, rival versions in respect of the same incident do take different shapes and in that event, lodgment of two FIRs is permissible.”
Also see the latest judgment of the Supreme Court in this regard: P. Sreekumar v. State of Kerala, (2018) 4 SCC 579.
Therefore, it should be clear that filing of two FIRs in the same incident by the same person is not possible. However, counter-FIRs by opposite / rival parties in the same incident may be filed for their counter versions against each other.
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.
January 7, 2019 at 9:44 am in reply to: Can transfer deed of property be cancelled unilaterally by transferor after 5 yr #5227Dr. Ashok DhamijaAdvocateA transfer deed cannot be cancelled unilaterally by the transferor in this manner. The sub-registrar will not register any such unilateral cancellation deed signed only by the transferor. If at all the transferor alleges that there was any fraud or malicious act in the original transfer due to which it was an illegal transfer, he may have to approach the competent court for appropriate order for cancellation of the transfer deed. Without the order of the competent court, a transfer deed cannot be cancelled unilaterally in such manner.
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 DhamijaAdvocateFrom a previous question asked by you on the same subject, it appears that your question pertains to a cooperative society in Delhi.
Under the Delhi Cooperative Societies Act, 2003, an administrator is appointed by the Registrar in supersession of the committee of the society under Section 37 of the Act. Sub-section (3) of this section lays down as under:
“The administrator shall, subject to the control of the Registrar and to such instructions as he may from time to time give, exercise powers and perform functions of the committee or of any officer of the co-operative society and take all such actions as may be required in the interest of the co-operative society, but shall not be empowered to enroll new members without the prior approval of the Registrar.”
Therefore, the administrator has to act as per the instructions given by the Registrar and subject to his control. You can firstly check what were the instructions given by the Registrar in this case, i.e., whether any positive or negative instructions were given with regard to bank transactions.
If the administrator was empowered to take control of the banking transactions of the society, then it was not legally permissible for the committee (including the President and Secretary of society) to keep signing cheques. In such case, it may amount to violation of directions of the Registrar, and if the funds have been misused (for purposes other than the ones for which they are meant) then it may even be misappropriation.
The bank may not even be aware of the appointment of the administrator. If you are affected party, you can inform the bank about the change, i.e., about supersession of the committee of society by an administrator. Also inform the administrator about the banking transactions still being conducted by committee members, if there was an order to not do so.
Violation of an order of the Registrar may be an offence under Section 118 of the Delhi Cooperative Societies Act, 2003, which is as under:
“118. (1) Any co-operative society or an officer or member thereof, willfully making a false return or furnishing false information, or any person willfully or without any reasonable excuse disobeys any summons, requisition or lawful written order issued under the provisions of this Act, or willfully not furnishing any information required from it or him or by a person authorized in this behalf under the provisions of this Act, shall be punishable with fine which shall not be less than two thousand rupees but which may extend to ten thousand rupees.
(2) Any employer who, without sufficient cause, fails to pay to a co-operative society the amount deducted by him under section 52 within a period of fourteen days from the date on which such deduction is made shall, without prejudice to any action that may be taken against him under any other law for the time being in force, be punishable with fine which may extend to five thousand rupees.
(3) Any officer or custodian who willfully fails to handover custody of books, accounts, documents, records, cash, security and other property belonging to a co-operative society of which he is an officer or custodian, to a person entitled under section 38 or section 60 or section 61 or section 62 or section 99 shall be punishable with fine which may extend to two thousand rupees and in the case of a continuing breach, with a further fine which may extend to five thousand rupees for every day during which the breach is continued after conviction for the first such breach.
(4) Any person who acts in contravention of section 44 or section 45 or sub-section (2) of section 66 or section 67 or section 68 or section 138 shall be punishable with fine of five hundred rupees.
(5) The committee of a co-operative society or any of its officers or employees who falsify or tamper with the record of the co-operative society, shall be punishable with imprisonment which may extend to seven years and shall also be liable to fine.
(6) Any officer or employee of a co-operative society including the paid secretary who dishonestly or fraudulently misappropriates or otherwise converts for his own use or intentionally causes loss to the property of the co-operative society entrusted to him or under his control as such officer or employee, or allows another person so to do shall be punishable with imprisonment which may extend to seven years and shall also be liable to fine.
(7) If any allotment of plot or flat is made by the committee in contravention of the provisions of sub-section (1) of section 77, the committee and its members responsible shall be punishable with imprisonment which may extend to seven years and shall also be liable to fine.
(8) If a co-operative society fails to file return as required under section 32, the committee or the negligent officer shall be punishable with a fine, which may extend to five hundred rupees.
(9) If committee fails to dispose of application within the period prescribed in section 91, the committee members responsible shall be liable for a penalty of ten thousand rupees and in the case of a continuing breach, with a further fine of one hundred rupees for every day during which the breach is continued after the expiry of the prescribed period.
(10) On conviction, a member of the co-operative society shall be debarred from contesting election of a committee for a period of six years.”
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.
January 7, 2019 at 9:06 am in reply to: Is it mandatory or advisable to file caveat in higher court after winning case? #5225Dr. Ashok DhamijaAdvocateProvision relating to caveat is contained in Section 148-A of the Civil Procedure Code, which is as under:
“148-A. Right to lodge a caveat.— (1) Where an application is expected to be made, or has been made, in a suit or proceeding instituted, or about to be instituted, in a Court, any person claiming a right to appear before the Court on the hearing of such application may lodge a caveat in respect thereof.
(2) Where a caveat has been lodged under sub-section (1), the person by whom the caveat has been lodged (hereinafter referred to as the caveator) shall serve a notice of the caveat by registered post, acknowledgment due, on the person by whom the application has been, or is expected to be, made, under sub-section (1).
(3) Where, after a caveat has been lodged under sub-section (1), any application is filed in any suit or proceeding, the Court shall serve a notice of the application on the caveator.
(4) Where a notice of any caveat has been served on the applicant, he shall forthwith furnish the caveator, at the caveator’s expense, with a copy of the application made by him and also with copies of any paper or document which has been, or may be, filed by him in support of the application.
(5) Where a caveat has been lodged under sub-section (1), such caveat shall not remain in force after the expiry of ninety days from the date on which it was lodged unless the application referred to in sub-section (1) has been made before the expiry of the said period.”
So, the basic purpose of filing the caveat is that the party filing the caveat will get a notice of application / appeal, and a copy of the application / appeal, etc.
Caveat is generally useful for the purpose of being able to represent / oppose when an interim relief is granted, because till that (early) stage the party filing the caveat may otherwise not have the notice of proceedings. Caveat enables such party to get notice and get represented at such earlier stage too.
For example, the relevant Supreme Court rules lay down that: “Respondent to whom a notice in a Special Leave Petition is issued or who had filed a caveat shall be entitled to oppose the grant of leave or interim orders, without filing any written objections.”
Likewise, it is provided in the Supreme Court rules that: “Unless a caveat as prescribed by rule 2 of Order XV has been lodged by the other parties, who appeared in the Court below, petitions for grant of special leave shall be put up for hearing ex-parte, but the Court, if it thinks fit, may direct issue of notice to the respondent and adjourn the hearing of the petition…”.
So, the basic purpose that caveat serves is that the caveator gets an opportunity to be heard even at the early stage of case and gets a copy of the appeal etc., and he is thus in a position to oppose the grant of any interim relief.
Otherwise, once the case has been admitted by the court, the respondents will in any case get the notice and will get the opportunity to be heard at the final hearing of the case, even if caveat is not filed. But, caveat helps to get such opportunity of hearing at the stage of interim relief too.
Filing of caveat is not mandatory for a party who has won the case in the lower court. Whether filing of caveat is advisable would depend on whether there is a scope for some interim relief being granted by the higher court against the order of the lower court and/or whether such interim relief can harm the interest of the party that won in the lower court.
This, in brief, is a general idea about the caveat. You should consult your local lawyer with detailed facts of your to decide whether you should file caveat in the higher 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.
Dr. Ashok DhamijaAdvocateAnswer to your question has already been given (see here). Please do not repeat the same question again. It has already been mentioned that you can also file complaint in the consumer court. The channel available through Ombudsman and the appeal against his decision are also already mentioned in the answer. It is up to you to decide to take whatever action you want to take, or whether it is feasible for you to take such action. Moreover, as our our Forum guidelines, we can only try to help you on legal issue and not on detailed facts; therefore, it is not possible for us to reply on the facts of the case.
Please see our Forum Guidelines. Unnecessary repetition of questions may lead to blocking of the user, as this Forum is not meant for a single person. Our capacity to help is limited.
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.
January 6, 2019 at 11:25 pm in reply to: Can accused file protest petition after filing of chargesheet? #5219Dr. Ashok DhamijaAdvocateProtest petition, as it is understood, can be filed by the complainant and not the accused person. Usually, it is filed by the complainant if the investigating authority files a final report under Section 173 of Cr.P.C. closing the case against some or all accused persons.
You can try making an application to the court under Section 91 of the Cr.P.C. for directing the person concerned to produce the relevant documents; the relevant extract of Section 91 is reproduced below:
“91. Summons to produce document or other thing.— (1) Whenever any Court or any officer in charge of a police station considers that the production of any document or other thing is necessary or desirable for the purposes of any investigation, inquiry, trial or other proceeding under this Code by or before such Court or officer, such Court may issue a summons, or such officer a written order, to the person in whose possession or power such document or thing is believed to be, requiring him to attend and produce it, or to produce it, at the time and place stated in the summons or order.”
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 by “remand diary” you mean the application made to court for seeking “police remand” or “judicial custody remand” of the accused, then I may point out that generally at that stage the police might be depending on the statement of the complainant / victim about the phone calls made, or may be on the call log in the mobile phone. Usually, it takes some time to get details from the mobile phone operator about the call details.
However, if the call details (as mentioned by you in the question) are mentioned in the charge sheet itself or in documents annexed to the charge sheet, then usually it would be based on the CDR obtained from the mobile phone operator, or the call log of the mobile phone itself. In such situation, you would be supplied copies of all relevant documents (including CDR) which will show such proof. Even if such details have been taken from the mobile phone itself, it has to be proved either by production of original instrument (which may mean the mobile phone itself or the memory card, which has the call log) or by secondary evidence in accordance with Section 65-B of the Evidence Act. In any case, you’ll get details / copies of such evidence in due course.
If you are not given the copies of such documents, even though they are cited as evidence, you can request the court to supply these copies and these are given generally. If necessary, you can also seek permission of the court to inspect the papers submitted by the investigating agency in the court.
You can also request the mobile phone operator for getting the CDR of your own phone.
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 DhamijaAdvocateFirstly, it depends whether you want to pursue your individual grievance for compensation, etc., or you want to fight for improvement of the system in general.
In the second situation, you may first write to the competent authority, which appears to be the RBI, with the changes suggested by you. Pursue with them for some reasonable time. If no satisfactory action is taken, you can consider filing a writ petition (PIL) in the high court, in consultation with your local advocate. But, please understand that it is not easy to improve the system. It takes years to fight with the system and a lot of time, energy and money may be required to fight with the system. And, yet, success may not be guaranteed.
In the first situation (i.e., where you are interested only to pursue your personal grievance), first approach the branch concerned. If you don’t get justice, you can approach the grievance cell of the bank (visit their website to get details) with your complaint. If you don’t get justice from there too after waiting for the prescribed time period (which is generally 30 days), you can approach the Ombudsman of the bank (who is an independent person appointed by the RBI) with your complaint; you can get details from the bank website.
If you don’t get justice from the Ombudsman too, you will generally have the option of filing an appeal before the appellate authority, which means a Deputy Governor of RBI, generally.
You also have the option to file a complaint with the consumer court concerned, which may be district forum, state forum or the national forum (NCDRC), depending on the amount involved.
For more accurate advice, please consult a local lawyer with the detailed facts of your 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 DhamijaAdvocateThe civil court has the power to grant temporary injunctions, stay, etc., and pass interlocutory orders under different Rules of Order 39 of the Civil Procedure Code. In certain urgent situations, the Court has the power to grant such temporary injunctions even without giving notice to the opposite parties (see Rule 3).
So, it all depends on you as to how fast you can file your civil suit along with application for temporary injunction, stay, etc. In cases of urgency, interim orders can be passed by the court after institution of the suit, without any unnecessary wastage of time. Rest, it all depends on the facts of each individual 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.
January 6, 2019 at 9:44 pm in reply to: Action on cheque bounce oct 2016 – after court verdict – on 18th dec 2018 #5213Dr. Ashok DhamijaAdvocateDepending on the facts of the case, if the notice was properly served in the name of the proprietorship concern itself, the possibility of using Section 319 Cr.P.C. could perhaps have been explored during the pendency of the trial proceedings in the court to add proprietor as an accused. However, if the notice was not served in the proper name of the proprietorship concern itself, then even Section 319 Cr.P.C. would have been difficult to apply during trial too (since notice to the correct party is a necessary ingredient of offence under Section 138 of the Negotiable Instruments Act).
In any case, now that it appears from your question that the accused has already been acquitted (and the trial has completed) on the ground that he was not the proprietor, now it may not be possible to file a fresh case on the proprietor at such a late stage since the time periods mentioned in Section 138 would have already expired (you have mentioned in the title of the question that a period 2 years has elapsed).
But, you can still file a civil suit for the recovery of the amount due from the real proprietor of the proprietorship concern, if it is not beyond the limitation period of 3 years. Even if the limitation period has expired, depending on the actual facts of your case, it may perhaps be possible for you to take help of Section 14 of the Limitation Act ("Exclusion of time of proceeding bona fide in court without jurisdiction") for filing the civil suit.
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.
January 6, 2019 at 9:07 pm in reply to: Validity of one month imprisonment under section 125(3) #5212Dr. Ashok DhamijaAdvocateI don’t know where is the doubt. If the order of the Magistrate for custody of the person was only up to 01.01.2019, and if there is no fresh order for any further custody from any competent court (or may be some other order of that court or another court in some other case), and if there is no fresh arrest in a case, and if the person has been detained in custody beyond 01.01.2019, then any such further custody beyond 01.01.2019 will be clearly illegal as there is no written order of custody. Oral orders have no meaning. A written order is required for custody. It should be quite clear.
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.
January 6, 2019 at 8:57 pm in reply to: Limitation Act not applicable to Appeal before Registrar of Co-opSocieties,Bihar #5211Dr. Ashok DhamijaAdvocateFirstly, you have to check the relevant Cooperative Societies Act which is applicable in your state (Bihar) as to whether there is a special procedure laid down in that Act for such matters or the provisions of the Civil Procedure Code (CPC) are applicable.
If the provisions of CPC are applicable in your case, then please note that Order 1 Rule 9 of the CPC lays down that no suit shall be defeated by reason of the misjoinder or non-joinder of parties, and the Court may in every suit deal with the matter in controversy so far as regards the rights and interests of the parties actually before it; however, if the non-joinder is of a necessary party then this rule may not apply, i.e., in the case of non-joinder of a necessary party, the suit may be defeated.
Further, Rule 13 of Order 1 says that all objections to the non-joinder should be taken at the earliest possible opportunity, except where the ground of objection has arisen subsequently.
Moreover, Order 1 Rule 10 empowers the Court, at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the Court to be just, order addition of the name of a party as defendant who ought to have been joined as defendant or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit. If a party is so added as a defendant, the plaint shall, unless the Court otherwise directs, be amended in such manner as may be necessary, and amended copies of the summons and of the plaint shall be served on the new defendant and, if the Court thinks fit, on the original defendant.
Further, a combined reading of this Rule (i.e., Order 1 Rule 10) and Section 21 of the Limitation Act, 1963, shows that where after the institution of a suit, a new defendant is added, the suit shall, as regards him, be deemed to have been instituted when he was so made a party; however, where the court is satisfied that the omission to include the new defendant was due to a mistake made in good faith it may direct that the suit as regards such (new) defendant shall be deemed to have been instituted on any earlier date.
So, this is the law on the issues raised by you. You can consult your local lawyer on the application of the law to the peculiar facts of your case. As per our Forum guidelines, on this Forum, we are not supposed to go into detailed facts of an individual 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 the notice sent by the payee has been received by the drawer on 30.11.2018, then he can make the payment up 15.12.2018, i.e., with 15 days of the receipt of the notice.
If the drawer of the cheque fails to make payment within the above period, i.e., up to 15.12.2018, then within one month from that date, complaint for cheque bounce under Section 138 of the Negotiable Instruments Act can be filed.
This means that the complaint can be filed till 15.01.2019. This implies that the complainant can file this complaint at any time from 16.12.2018 to 15.01.2019.
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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