[Dr. Ashok Dhamija]

One of the essential requirements for a cheque bounce case is that the cheque should have been issued for payment of money for the discharge, in whole or in part, of any debt or other liability. Thus, if the cheque is issued for purchasing some goods or for payment for some services rendered or for some earlier debt or for payment of salary for some work done, etc., the offence under this section may be attracted. Moreover, the Explanation to Section 138 clarifies that “debt or other liability” means a legally enforceable debt or other liability. On the other hand, if the cheque is issued for any other purpose, for example, for giving loan to another person, or for giving a gift or donation to another person, offence under this section will not be attracted.

In your situation, from the limited facts that you have mentioned, it appears that the cheque was given as a security for a job in a company. It does not appear to have been given to discharge a debt or liability. Moreover, you have not even joined the job, as you have mentioned. Correct me on facts if I am wrong. In such situation, a cheque bounce case has little chance of success against 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]

The format for the Special Leave Petition (Civil) or SLP (Civil) is available in Form No. 28 in Fourth Schedule (on pages 93-94) of the Supreme Court Rules, 2013.

These Rules are available online at the following link from where you can download them:

http://sci.nic.in/Supreme%20Court%20Rules,%202013.pdf

     

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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 Consumer Protection Act, 1986, the District Consumer Forum [“Consumer Disputes Redressal Forum”] has pecuniary jurisdiction to entertain complaints where the value of the goods or services and the compensation, if any, claimed does not exceed Rs. 20 lakhs.

The State Consumer Disputes Redressal Commission (also popularly called “State Commission” or the “State Consumer Forum”) has jurisdiction to entertain original consumer complaints where such claim exceeds Rs. 20 lakh but does not exceed Rs. 1 crore.

For original consumer complaints where such claim exceeds Rs. 1 crore, the jurisdiction is with the National Consumer Disputes Redressal Commission (NCDRC).

In your case, if the claim is of Rs. 18 lakh, then you can definitely file your consumer complaint with the District Consumer Forum. There is no need to file the complaint with the State Commission in the first instance.

     

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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, an inter-religion marriage between persons of marriageable age is permissible in India, and it is legally valid, if it is performed under the provisions of the Special Marriage Act, 1954, fulfilling the conditions under that Act. For this type of marriage, consent of the parents is not necessary.

Section 4 of the Special Marriage Act lays down the basic conditions for such a valid marriage:

“4. Conditions relating to solemnization of special marriages—Notwithstanding anything contained in any other law for the time being in force relating to the solemnization of marriages, a marriage between any two persons may be solemnized under this Act, if at the time of the marriage the following conditions are fulfilled, namely:—

(a) neither party has a spouse living;

(b) neither party—

(i) is incapable of giving a valid consent to it in consequence of unsoundness of mind; or

(ii) though capable of giving a valid consent, has been suffering from mental disorder of such a kind or to such an extent as to be unfit for marriage and the procreation of children; or

(iii) has been subject to recurrent attacks of insanity;

(c) the male has completed the age of twenty-one years and the female the age of eighteen years;

(d) the parties are not within the degrees of prohibited relationship:

Provided that where a custom governing at least one of the parties permits of a marriage between them, such marriage may be solemnized, notwithstanding that they are within the degrees of prohibited relationship; and

(e) where the marriage is solemnized in the State of Jammu and Kashmir, both parties are citizens of India domiciled in the territories to which this Act extends.

Explanation.—In this section, “custom”, in relation to a person belonging to any tribe, community, group or family, means any rule which the State Government may, by notification in the Official Gazette, specify in this behalf as applicable to members of that tribe, community, group or family:

Provided that no such notification shall be issued in relation to the members of any tribe, community, group or family, unless the State Government is satisfied—

(i) that such rule has been continuously and uniformly observed for a long time among those members;

(ii) that such role is certain and not unreasonable or opposed to public policy; and

(iii) that such role, if applicable only to a family, has not been discontinued by the family.”

In addition to this, there are certain other basic conditions like giving of advance notice to the Marriage Officer of the District, etc. Please read the relevant provisions of this Act for more information, or else consult some lawyer or other expert 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]

Though your question is not very clear, from your question, it appears that the cheques were given as consideration for doing some work and the work has not been done; despite that the cheques were presented to the bank and the same bounced upon which case under Section 138 of the Negotiable Instruments Act has been filed.

It this is correct, then please note that as per the legal requirements under Section 138, cheque should have been issued for payment of money for the discharge, in whole or in part, of any debt or other liability. Thus, if the cheque is issued for purchasing some goods or for payment for some services rendered or for some earlier debt or for payment of salary for some work done, etc., the offence under this section may be attracted. Moreover, the Explanation to Section 138 clarifies that “debt or other liability” means a legally enforceable debt or other liability. If the work for which the cheque was issued, has not been done, then it may not amount to legally enforceable liability or debt. So, you can try to use this defence.     

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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 serve a legal notice on the company for payment of your salaries, and if needed, approach the office of the labour commissioner / labour 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]

As per the information made available on the website of the Ministry of External Affairs, Government of India, you can contact the Indian Embassy / Consulate in Saudi Arabia, whose contact numbers / details can be seen from the website. Alternative, you can register your grievance on the MADAD website which has been started by the Ministry of External Affairs, at http://www.madad.gov.in. Alternative, you can also call the Overseas Workers Resource Centre (OWRC) for assistance.

For contacting these authorities or registering your grievance online on the above website, you have to provide details of your brother’s Indian passport, visa, sponsor/employer’s name and contact details, and the name and contact details of your Recruiting Agent (if applicable).

The Indian Embassy / Consulate will approach the local police / government authorities of Saudi Arabia on the basis of your grievance, and they will try to get some details about your brother. The Office of the Protector General of Emigrants will also approach the sponsor/employer through your Recruiting Agent, to try and get more details.

This may perhaps help.

     

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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 provisions relating to grant of citizenship of India to a person by way of registration on ground of marriage to an Indian citizen, are laid down in Section 5 of the Citizenship Act, 1955. The relevant extracts of Section 5 (for grant of citizenship on ground of marriage to an Indian citizen) are as under:

“5. Citizenship by registration.— (1) Subject to the provisions of this section and such other conditions and restrictions as may be prescribed, the Central Government may, on an application made in this behalf, register as a citizen of India any person not being an illegal migrant who is not already such citizen by virtue of the Constitution or of any other provision of this Act if he belongs to any of the following categories, namely:—

*** *** ***

(c) a person who is married to a citizen of India and is ordinarily resident in India for seven years before making an application for registration;

*** *** ***

Explanation 1.—For the purposes of clauses (a) and (c), an applicant shall be deemed to be ordinarily resident in India if—

(i) he has resided in India throughout the period of twelve months immediately before making an application for registration; and

(ii) he has resided in India during the eight years immediately preceding the said period of twelve months for a period of not less than six years.

*** *** ***

(6) If the Central Government is satisfied that circumstances exist which render it necessary to grant exemption from the residential requirement under clause (c) of sub-section (1) to any person or a class of persons, it may, for reasons to be recorded in writing, grant such exemption.”

From the above provisions, it can be seen that for a person desirous of obtaining Indian citizenship on grounds of marriage to an Indian citizen, following conditions are required to be satisifed:

• Such person should have been ordinarily resident in India for a period of 7 years before making an application for citizenship.
• If conditions mentioned in Explanation 1 above are satisfied, then also such person shall be deemed to be ordinarily resident in India.
• As per clause (6), the Central Government has the power to grant exemption from the residential requirement in the case of such person (seeking citizenship on grounds of marriage to an Indian citizen) as per the conditions mentioned there.

So, the answer to your question is “yes” and your wife (who is a foreign national) can apply for Indian citizenship subject to the conditions mentioned above.

     

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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]

No specific limitation period has been mentioned for filing an appeal under Section 37 of the Arbitration and Conciliation Act, 1996. However, the provisions of the Limitation Act, 1963, will have to be seen here, since Section 43 of the Arbitration and Conciliation lays down that the provisions of Limitation Act will apply. Under the provisions of the Limitation Act, a period of 90 days’ limitation has been laid down for filing an appeal to the High Court from a decree or order. Therefore, the limitation period for filing an appeal under Section 37 of the Arbitration and Conciliation Act can be said to be 90 days, if such appeal is to be filed to the high court from the district court order under Section 34 of the Arbitration and Conciliation 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]

In the following 3 situations, a case can be registered in India even if the incident took place outside India:

• where any offence committed by any citizen of India in any place without and beyond India;
• where any offence committed by any person on any ship or aircraft registered in India wherever it may be;
• where any offence committed by any person in any place without and beyond India committing offence targeting a computer resource located in India.

This is laid down in Section 4 of the Indian Penal Code, which is reproduced below:

“4. Extension of Code to extra-territorial offences.—The provisions of this Code apply also to any offence committed by—

(1) any citizen of India in any place without and beyond India;

(2) any person on any ship or aircraft registered in India wherever it may be;

(3) any person in any place without and beyond India committing offence targeting a computer resource located in India.

Explanation.—In this section—

(a) the word “offence” includes every act committed outside India which, if committed in India, would be punishable under this Code;

(b) the expression “computer resource” shall have the meaning assigned to it in clause (k) of sub-section (1) of Section 2 of the Information Technology Act, 2000 (21 of 2000).”

In such a situation, Section 188 of the Criminal Procedure Code provides that the person committing such offence may be dealt with in respect of such offence as if it had been committed at any place within India at which he may be found. However, the previous sanction of the Central Government is necessary for inquiring into or prosecuting such offence in India. Section 188 of the Cr.P.C. is reproduced below:

“188. Offence committed outside India.— When an offence is committed outside India—

(a) by a citizen of India, whether on the high seas or elsewhere; or

(b) by a person, not being such citizen, on any ship or aircraft registered in India,

he may be dealt with in respect of such offence as if it had been committed at any place within India at which he may be found:

Provided that, notwithstanding anything in any of the preceding sections of this Chapter, no such offence shall be inquired into or tried in India except with the previous sanction of the Central Government.”

 

     

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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, FIR is lodged by any person who knows about the commission of a cognizable offence. It is not necessary that only the victim of a crime or his relative can lodge such FIR. Any person who knows about such crime, can inform the police and get the FIR lodged. This is a basic principle of criminal law and any person having knowledge of an offence can set the criminal law in motion. In fact, Section 39 of the Cr.P.C. makes it a duty of every person to inform the nearest police officer or Magistrate about commission of certain serious offences.

FIR (or the First Information Report) is registered by police under Section 154 of the Criminal Procedure Code (Cr.P.C.). It is registered in respect of information relating to commission of a cognizable offence. The person who gives information for registration of FIR is called the “informant”, as is seen from sub-section (2) of Section 154 Cr.P.C., which says that: “A copy of the information as recorded under sub-section (1) shall be given forthwith, free of cost, to the informant”. There are no qualifying words attached to “informant” in Section 154 Cr.P.C. and it can be any person.

It may be pointed out that in the case of Ganesha v. Sharanappa, (2014) 1 SCC 87, the Supreme Court has differentiated between the words “informant” and “complainant”, by observing as under:

“…we may observe a common error creeping in many of the judgments including the present one. No distinction is made while using the words “informant” and “complainant”. In many of the judgments, the person giving the report under Section 154 of the Code is described as the “complainant” or the “de facto complainant” instead of “informant”, assuming that the State is the complainant. These are not words of literature. In a case registered under Section 154 of the Code, the State is the prosecutor and the person whose information is the cause for lodging the report is the informant. This is obvious from sub-section (2) of Section 154 of the Code which, inter alia, provides for giving a copy of the information to the “informant” and not to the “complainant”. However the complainant is the person who lodges the complaint. The word “complaint” is defined under Section 2(d) of the Code to mean any allegation made orally or in writing to a Magistrate and the person who makes the allegation is the complainant, which would be evident from Section 200 of the Code, which provides for examination of the complainant in a complaint case. Therefore, these words carry different meanings and are not interchangeable. In short, the person giving information, which leads to lodging of the report under Section 154 of the Code is the informant and the person who files the complaint is the complainant.”

Section 154 Cr.P.C. uses the word “informant” (and NOT “complainant”), and any person can give the “information” to police for the purposes of setting the criminal law in motion by way of getting the FIR registered.

     

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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 Sessions Judge the power to transfer a case from one criminal court (including the court of an Additional Sessions Judge) to another criminal court within his sessions division. This is specifically laid down in Section 408 of the Criminal Procedure Code, which is reproduced below.

Of course, while considering an application for transfer of a case from one court to another, the Sessions Judge is required to give an opportunity of being heard to the opposite party, which is a basis principle of natural justice.

Section 408 of Cr.P.C.:

“408. Power of Sessions Judge to transfer cases and appeals.— (1) Whenever it is made to appear to a Sessions Judge that an order under this sub-section is expedient for the ends of justice, he may order that any particular case be transferred from one Criminal Court to another Criminal Court in his sessions division.

(2) The Sessions Judge may act either on the report of the lower Court, or on the application of a party interested, or on his own initiative.

(3) The provisions of sub-sections (3), (4), (5), (6), (7) and (9) of Section 407 shall apply in relation to an application to the Sessions Judge for an order under sub-section (1) as they apply in relation to an application to the High Court for an order under sub-section (1) of Section 407, except that sub-section (7) of that section shall so apply as if for the words “one thousand rupees” occurring therein, the words “two hundred and fifty rupees” were substituted.”

 

     

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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 Section 45 of the Evidence Act, a person who is specially skilled in foreign law, science or art, or in questions as to identity of handwriting or finger impressions is called an expert. An Examiner of Electronic Evidence is also called an expert [Section 45-A of the Evidence Act].

As per Section 51 of the Evidence Act, an expert may give an account of experiments performed by him for the purpose of forming his opinion.

The opinion of these experts can be relied upon by a court when it has to form an opinion on these issues.

The opinion given by such experts is generally called expert opinion.

Further, Section 293 of the Cr.P.C. provides that any document purporting to be a report under the hand of certain Government scientific experts (as mentioned in this section), upon any matter or thing duly submitted to him for examination or analysis and report in the course of any proceeding under Cr.P.C., may be used as evidence in any inquiry, trial or other proceeding under Cr.P.C.

The experts mentioned in Section 293 Cr.P.C. are as under:

• any Chemical Examiner or Assistant Chemical Examiner to Government;
• the Chief Controller of Explosives;
• the Director of the Finger Print Bureau;
• the Director, Haffkeine Institute, Bombay;
• the Director, Deputy Director or Assistant Director of a Central Forensic Science Laboratory or a State Forensic Science Laboratory;
• the Serologist to the Government.
• any other Government scientific expert specified by notification, by the Central Government for this purpose.

 

     

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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 limitation period for taking cognizance of an offence is laid down in Section 468 of the Criminal Procedure Code (Cr.P.C.). Accordingly, the time limit for filing a private complaint before a court in respect of an offence is also as per the time periods mentioned in Section 468 of the Cr.P.C.

As per this, the limitation for filing private complaint for an offence is not fixed and it depends on the quantum of punishment prescribed for that offence.

This period of limitation is as under:

• 6 months, if the offence is punishable with fine only;
• 1 year, if the offence is punishable with imprisonment for a term not exceeding 1 year;
• 3 years, if the offence is punishable with imprisonment for a term exceeding 1 year but not exceeding 3 years.
• No time limit, if the offence is punishable with imprisonment for a term exceeding 3 years, or with life imprisonment, or with death penalty.

Section 468 of Cr.P.C. is reproduced below:

“468. Bar to taking cognizance after lapse of the period of limitation.— (1) Except as otherwise provided elsewhere in this Code, no Court shall take cognizance of an offence of the category specified in sub-section (2), after the expiry of the period of limitation.

(2) The period of limitation shall be—

(a) six months, if the offence is punishable with fine only;

(b) one year, if the offence is punishable with imprisonment for a term not exceeding one year;

(c) three years, if the offence is punishable with imprisonment for a term exceeding one year but not exceeding three years.

(3) For the purposes of this section, the period of limitation, in relation to offences which may be tried together, shall be determined with reference to the offence which is punishable with the more severe punishment or, as the case may be, the most severe punishment.”

 

     

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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 complaint for the offence of adultery [which is defined under Section 497 of the Indian Penal Code] can be filed only by the husband of the woman in respect of whom the offence of adultery has been committed. No other person is legally entitled to file such complaint.

However, in the absence of the husband, some person who had care of the woman on his behalf at the time when such offence of adultery was committed, may, with the permission of the Court, make a complaint on his behalf for such offence.

This has been laid down in Section 198 of the Criminal Procedure Code, which is reproduced below:

“198. Prosecution for offences against marriage.— (1) No Court shall take cognizance of an offence punishable under Chapter XX of the Indian Penal Code (45 of 1860) except upon a complaint made by some person aggrieved by the offence:

Provided that—

(a) where such person is under the age of eighteen years, or is an idiot or a lunatic, or is from sickness or infirmity unable to make a complaint, or is a woman who, according to the local customs and manners, ought not to be compelled to appear in public, some other person may, with the leave of the Court, make a complaint on his or her behalf;

(b) where such person is the husband and he is serving in any of the Armed Forces of the Union under conditions which are certified by his Commanding Officer as precluding him from obtaining leave of absence to enable him to make a complaint in person, some other person authorised by the husband in accordance with the provisions of sub-section (4) may make a complaint on his behalf;

(c) where the person aggrieved by an offence punishable under Section 494 or Section 495 of the Indian Penal Code (45 of 1860) is the wife, complaint may be made on her behalf by her father, mother, brother, sister, son or daughter or by her father’s or mother’s brother or sister, or, with the leave of the Court, by any other person related to her by blood, marriage or adoption.

(2) For the purposes of sub-section (1), no person other than the husband of the woman shall be deemed to be aggrieved by any offence punishable under Section 497 or Section 498 of the said Code:

Provided that in the absence of the husband, some person who had care of the woman on his behalf at the time when such offence was committed may, with the leave of the Court, make a complaint on his behalf.

(3) When in any case falling under clause (a) of the proviso to sub-section (1), the complaint is sought to be made on behalf of a person under the age of eighteen years or of a lunatic by a person who has not been appointed or declared by a competent authority to be the guardian of the person of the minor or lunatic, and the Court is satisfied that there is a guardian so appointed or declared, the Court shall, before granting the application for leave, cause notice to be given to such guardian and give him a reasonable opportunity of being heard.

(4) The authorisation referred to in clause (b) of the proviso to sub-section (1), shall be in writing, shall be signed or otherwise attested by the husband, shall contain a statement to the effect that he has been informed of the allegations upon which the complaint is to be founded, shall be countersigned by his Commanding Officer, and shall be accompanied by a certificate signed by that Officer to the effect that leave of absence for the purpose of making a complaint in person cannot for the time being be granted to the husband.

(5) Any document purporting to be such an authorisation and complying with the provisions of sub-section (4), and any document purporting to be a certificate required by that sub-section shall, unless the contrary is proved, be presumed to be genuine and shall be received in evidence.

(6) No Court shall take cognizance of an offence under Section 376 of the Indian Penal Code (45 of 1860), where such offence consists of sexual intercourse by a man with his own wife, the wife being under eighteen years of age, if more than one year has elapsed from the date of the commission of the offence.

(7) The provisions of this section apply to the abetment of, or attempt to commit, an offence as they apply to the offence.”

 

     

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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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