[Dr. Ashok Dhamija]

One of the necessary condition for the offence of cheque dishonour under Section 138 of the Negotiable Instruments Act is laid down in clause (c) of the Proviso to this section, which is as under:

“(c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or as the case may be, to the holder in due course of the cheque within fifteen days of the receipt of the said notice.”

Therefore, it is necessary to wait for a period of 15 days after RECEIPT of notice by drawer so as to give him opportunity to make the payment.

From the facts of your case, it appears that the case was filed in a pre-mature manner. This is so because even if it be presumed that the drawer received the notice on the same day, i.e., 12.01.2011 itself when this notice was issued, the period of 15 days gets completed on 27.01.2011, and therefore, the case should have been filed on 28.01.2011 or thereafter. And, if the notice was received by the drawer on a date later than 12.01.2011, then the 15 days’ period would get completed on a further date.

Therefore, your case appears to have been filed in a pre-mature manner.     

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Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers. List of his YouTube Videos.

[Dr. Ashok Dhamija]

See our previous replies to your similar questions:

(1) http://tilakmarg.com/forum/topic/slp-civil-mater/

(2) http://tilakmarg.com/forum/topic/slp-civil-mater-2/     

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Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers. List of his YouTube Videos.

[Dr. Ashok Dhamija]

Please consult your advocate and ask him this question or ask it from the registry or check it online. In the past, we have already replied to your similar question on 2-3 occasions. It is for your advocate to reply to such type of questions. If needed, you should change your advocate. And, if you have not appointed any advocate so far, please appoint an advocate if you are not able to make such enquiries with registry or online.     

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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 has been presented twice during the period of its validity, and if it bounces and other conditions mentioned in Section 138 of Negotiable Instruments Act are satisfied, then it should be possible to file a case on the bouncing of the cheque on the second presentation.

Every time a cheque is presented in the manner and within the time stipulated under the proviso to Section 138 followed by a notice within the meaning of clause (b) of the proviso to Section 138 and the drawer fails to make the payment of the amount within the stipulated period of fifteen days after the date of receipt of such notice, a cause of action accrues to the holder of the cheque to institute proceedings for the prosecution of the drawer.     

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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]

Judicial Magistrate of Second Class has powers in respect of offences under Section 323 and 504 IPC. He also has the power in respect of Section 506 IPC if the threat is NOT to cause death or grievous hurt, etc.

However, for offences under Sections 498-A, such Magistrate has no power. Likewise, for Section 506 IPC also, if the threat is to cause death or grievous hurt, etc., then such Magistrate has no power.

Therefore, if all these sections are being tried together in the same case, then the power to frame charges will be with the Judicial Magistrate of the First Class only, and NOT with the Magistrate of Second Class.     

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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 lower courts (such as a court of magistrate) have no powers of review of their orders, except as laid down in Section 362 Cr.P.C. to correct a clerical or arithmetical error. Review of order on merits is not permissible by such courts. This is clear from the language of Section 362 of Cr.P.C. which is reproduced below:

“362. Court not to alter judgment.— Save as otherwise provided by this Code or by any other law for the time being in force, no Court, when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error.”

But, of course, you can challenge such order in revision or appeal before the superior courts, as may be permissible under law.
     

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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 police has no power to investigate a non-cognizable offence without the order of the Magistrate. It is due to this reason that when report of such an offence is given under Section 155 Cr.P.C. to police, it simply enters the information in a register meant for that purpose and refers to the informant to the magistrate, i.e., asks him to go to the magistrate.

It is not necessary that you should first go to police for such non-cognizable offence under Section 155 Cr.P.C. Likewise, it is not necessary that the police should first refer the informant to the magistrate.

The magistrate has the power to directly deal with a complaint filed with him.

So, you can directly file a complaint (of a non-cognizable offence) with the magistrate, without going to the police first.     

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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]

Email can be proved as an electronic record. It can be proved by printing it on a paper or storing or recording it on CD, USB drive, etc., along with a certificate and by fulfilling the requirements as laid down in Section 65-B of the Evidence Act.

The relevant sections 65-A and 65-B of the Evidence Act for proving the electronic records (including contents of email) are reproduced below:

“65-A. Special provisions as to evidence relating to electronic record.—The contents of electronic records may be proved in accordance with the provisions of Section 65-B.

65-B. Admissibility of electronic records.—(1) Notwithstanding anything contained in this Act, any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer (hereinafter referred to as the computer output) shall be deemed to be also a document, if the conditions mentioned in this section are satisfied in relation to the information and computer in question and shall be admissible in any proceedings, without further proof or production of the original, as evidence of any contents of the original or of any fact stated therein of which direct evidence would be admissible.

(2) The conditions referred to in sub-section (1) in respect of a computer output shall be the following, namely—

(a) the computer output containing the information was produced by the computer during the period over which the computer was used regularly to store or process information for the purposes of any activities regularly carried on over that period by the person having lawful control over the use of the computer;

(b) during the said period, information of the kind contained in the electronic record or of the kind from which the information so contained is derived was regularly fed into the computer in the ordinary course of the said activities;

(c) throughout the material part of the said period, the computer was operating properly or, if not, then in respect of any period in which it was not operating properly or was out of operation during that part of the period, was not such as to affect the electronic record or the accuracy of its contents; and

(d) the information contained in the electronic record reproduces or is derived from such information fed into the computer in the ordinary course of the said activities.

(3) Where over any period, the function of storing or processing information for the purposes of any activities regularly carried on over that period as mentioned in clause (a) of sub-section (2) was regularly performed by computers, whether—

(a) by a combination of computers operating over that period; or

(b) by different computers operating in succession over that period; or

(c) by different combinations of computers operating in succession over that period; or

(d) in any other manner involving the successive operation over that period, in whatever order, of one or more computers and one or more combinations of computers,

all the computers used for that purpose during that period shall be treated for the purposes of this section as constituting a single computer; and references in this section to a computer shall be construed accordingly.

(4) In any proceedings where it is desired to give a statement in evidence by virtue of this section, a certificate doing any of the following things, that is to say,—

(a) identifying the electronic record containing the statement and describing the manner in which it was produced;

(b) giving such particulars of any device involved in the production of that electronic record as may be appropriate for the purpose of showing that the electronic record was produced by a computer;

(c) dealing with any of the matters to which the conditions mentioned in sub-section (2) relate,

and purporting to be signed by a person occupying a responsible official position in relation to the operation of the relevant device or the management of the relevant activities (whichever is appropriate) shall be evidence of any matter stated in the certificate; and for the purposes of this sub-section it shall be sufficient for a matter to be stated to the best of the knowledge and belief of the person stating it.

(5) For the purposes of this section,—

(a) information shall be taken to be supplied to a computer if it is supplied thereto in any appropriate form and whether it is so supplied directly or (with or without human intervention) by means of any appropriate equipment;

(b) whether in the course of activities carried on by any official, information is supplied with a view to its being stored or processed for the purposes of those activities by a computer operated otherwise than in the course of those activities, that information, if duly supplied to that computer, shall be taken to be supplied to it in the course of those activities;

(c) a computer output shall be taken to have been produced by a computer whether it was produced by it directly or (with or without human intervention) by means of any appropriate equipment.

Explanation.—For the purposes of this section any reference to information being derived from other information shall be a reference to its being derived therefrom by calculation, comparison or any other process.”

     

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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 are not willing for divorce, you may oppose it. Moreover, if you feel that she has deserted you and that you want to live with her, you can file a petition for restitution of conjugal rights.

As regards the amount of maintenance, it depends on the facts of each individual case and no hard and fast rule can be laid down with regard to amount of maintenance. The fact that she is also working may also be considered by the court in this regard.     

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Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers. List of his YouTube Videos.

[Dr. Ashok Dhamija]

It is not possible to understand your question. The SLP number that you gave has been dismissed on 03.02.3017. So, whatever the high court had said would be applicable.     

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Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers. List of his YouTube Videos.

[Dr. Ashok Dhamija]

This case is shown registered as SLP (Civil) D 38105 of 2016 [S. MALLIKA AND ORS. Vs. R. SARAVANAN AND ANR.]. No next date is shown on the website and no order passed is shown on website. You may have to check from the Supreme Court registry, either personally or through your advocate. If you cannot go there personally, you may have to engage an advocate. An unauthorized person cannot get information from registry. Else, keep checking the website for whatever information is available. Use this link to check information: http://courtnic.nic.in/supremecourt/casestatus_new/caseno_new_alt.asp     

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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 21 of the Civil Procedure Code is similar to your case, though it does not directly cover your case. It is reproduced as under:

“21. Objections to jurisdiction.— (1) No objection as to the place of suing shall be allowed by any Appellate or Revisional Court unless such objection was taken in the Court of first instance at the earliest possible opportunity and in all cases where issues are settled at or before such settlement, and unless there has been a consequent failure of justice.

(2) No objection as to the competence of a Court with reference to the pecuniary limits of its jurisdiction shall be allowed by any Appellate or Revisional Court unless such objection was taken in the Court of first instance at the earliest possible opportunity, and, in all cases where issues are settled, at or before such settlement, and unless there has been a consequent failure of justice.

(3) No objection as to the competence of the executing Court with reference to the local limits of its jurisdiction shall be allowed by any Appellate or Revisional Court unless such objection was taken in the executing Court at the earliest possible opportunity, and unless there has been a consequent failure of justice.”

In a similar situation, in the case of Bahrein Petroleum Co. Ltd. v. P.J. Pappu, AIR 1966 SC 634, the Supreme Court held that:

“If the defendant allows the Trial Court to proceed to judgment without raising the objection as to the place of suing and takes the chance of a verdict in his favour, he clearly waives the objection, and will not be subsequently permitted to raise it. It is even possible to say that long and continued participation by the defendant in the proceedings without any protest may, in an appropriate case, amount to a waiver of the objection.”

As I mentioned above, though your case is not covered under Section 21 of CPC, the legal principle is somewhat similar. You may try taking a similar ground that before the Single Judge of the high court, the proceedings continued for 16 long years and the opposite party never objected and even a judgment was passed in your favour. Likewise, even before the division bench of the high court, no objection was taken even till the time the judgment was reserved. Therefore, at such late stage, such objection by the opposite party should not be accepted. [Note: however, please be aware that where the competence of the court goes to the root of the jurisdiction, the court may or may not accept this argument.]     

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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 far as I understand, a certificate issued by the appropriate authority  or duly constituted medical board about the disability should generally be considered to be final. Under the newly enacted the Rights of Persons with Disabilities Act, 2016 [http://www.disabilityaffairs.gov.in/upload/uploadfiles/files/RPWD%20ACT%202016.pdf], as well as under the existing guidelines, namely,  the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Rules, 1996, there does not appear to be any provision for such review on behalf of the employer, though there are provisions to enable the person with disability to file for review / appeal against the decision of the medical board if he is not satisfied about such decision. Even the rules relating to medical examination of candidates for Civil Services Examination (including for the persons belonging to the PH category) [http://persmin.gov.in/ais1/Docs/Appendix-III.pdf] do not contain provisions for any such review.

However, I may not have access to all relevant departmental guidelines or rules (which are not available on the web). And, perhaps, it may need some more research on this issue.

But, perhaps in those cases where there is an allegation that the person concerned has produced or obtained a fake disability certificate for claiming reservation benefit for PH candidates, the department may be in a position to refer them to the appropriate medical board. To give a parallel, several years back, I had seen the cases of two persons who had been appointed to the Central Civil Services (if I remember correctly, one of them was appointed in IAS and the other in IPS) on the basis of fake caste certificates thereby wrongly claiming reservation benefits. Subsequently, they were removed from service and criminal cases were registered against them for the fake caste certificate. Perhaps, in a similar manner, if there are allegations that a person has obtained or produced a fake disability certificate, the department may perhaps get it verified and take necessary action if such certificate is found to be fake. This is because it is a misconduct to produce fake certificates (including cases where the medical board was also involved or was bribed) and an appointment made on the basis of fake certificate may be revoked. This is also in order to ensure that the deserving PH candidates are not deprived of their opportunities by the people with fake disability certificates. In fact, a simple search of Google shows several news reports with fake disability certificate scams. For example, see the following news report:

• http://www.dailymail.co.uk/indiahome/indianews/article-3200164/Disability-certificate-scam-hits-Capital-Able-bodied-youngsters-bribing-hospital-staff-fake-medical-reports.html
• http://www.thehansindia.com/posts/index/Hans/2015-12-16/Teachers-produce-fake-PHC-certificates-to-avail-benefits-/193302
• http://bangaloremirror.indiatimes.com/bangalore/others/physically-disabled-persons-false-certificates-certificate-disabilities-deputy-commissioners-tahsildars-unique-identity-number/articleshow/34892352.cms?
• http://timesofindia.indiatimes.com/city/pune/3-get-jail-term-for-issuing-fake-disability-certificates/articleshow/30636946.cms
• http://www.thehindu.com/news/national/other-states/use-of-fake-disability-certificates-rampant/article7094022.ece

But, in genuine marginal cases (i.e., where fake disability certificate is not suspected), such review of PH candidates should not be possible. More so, when the person has already spent about a year in service. Wherever possible, benefit of doubt should be given to the PH candidate. In case, any action is taken in any such genuine case, the person concerned can ask the Govt as to under what provisions of law such review medical examination is being conducted (or, it may perhaps be explained in the order for such review, itself). And, if need be, such review order can be challenged before the appropriate court or tribunal (such as CAT) having jurisdiction.     

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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]

High Court jurisdiction under Article 226 is not fully taken away, but this will be only after CAT decision. What this means is that once CAT gets jurisdiction in a matter, the matter has to be taken to CAT first and the high court cannot hear it at the first or original stage. But, after CAT has given its verdict, the CAT decision can be challenged in high court under Article 226.     

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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]

Without going into the details of facts of your case, generally speaking, the issues which are not decided while finally disposing of a matter may be considered to have been rejected by the court (unless, of course, if the court specifically mentions that certain issues have been kept open, without deciding them, in which situation those specific undecided issues may not be considered to have been rejected by it). Therefore, it may be possible to challenge such issues in the higher court, in this case by way of SLP in Supreme Court. If the Supreme Court deems it appropriate, it may remit the matter to the high court and direct it to decide those issues, or else the Supreme Court may itself decide them.     

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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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