Dr. Ashok Dhamija
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Dr. Ashok DhamijaAdvocatePlease see my article: http://tilakmarg.com/answers/difference-between-a-criminal-complaint-filed-under-section-200-and-190-of-cr-p-c/
If you have sufficient evidence to prove the case on your own as a private complaint case, then you may try Section 190 / 200 Cr.P.C. private complaint route.
However, if you feel that you need police investigation for collecting relevant evidence and that you’ll not be able to prove the case yourself without such additional evidence, in that case, you may try an application under Section 156(3) Cr.P.C. requesting the Magistrate court to direct police to investigate the 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 DhamijaAdvocateSection 420 IPC is reproduced below:
“420. Cheating and dishonestly inducing delivery of property.—Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.”
It is clear from Section 420 IPC that it is committed when the act of cheating is used to induce the person to deliver some property etc. Such intention to dishonestly induce the person to deliver property etc should be since the beginning, i.e., since the time when the act was first committed.
In your case, you say that hand loan was given. Now, suppose hand loan (which is property) was given at the time when the cheque was given to you, then perhaps Section 420 IPC may be attracted, since at that time the account itself was already closed. So, the intention, as mentioned above, would perhaps have been there to cheat.
But, suppose the hand loan had already been given and the cheque was given subsequently, then at the time of giving the cheque there was no inducement for delivering any property etc (since hand loan is already given), and in such a case, it may become difficult to prove Section 420 IPC. However, even in this case, offence under Section 138 of Negotiable Instruments Act may be made out.
What I have mentioned above is the general scenario. Ultimately, it depends on the detailed facts of an individual case. So, please consult some local lawyer by showing him all relevant documents / facts.
Please also read my following articles, which are relevant to your question:
http://tilakmarg.com/forum/topic/can-cheating-case-under-section-420-ipc-be-filed-in-cheque-bounce/
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 latest legal position with regard to jurisdiction in cheque bounce cases is laid down in Section 142(2) of the Negotiable Instruments Act, which was amended with effect from 15 June 2015, and this amended provision is as under:
“(2) The offence under Section 138 shall be inquired into and tried only by a court within whose local jurisdiction,—
(a) if the cheque is delivered for collection through an account, the branch of the bank where the payee or holder in due course, as the case may be, maintains the account, is situated; or
(b) if the cheque is presented for payment by the payee or holder in due course, otherwise through an account, the branch of the drawee bank where the drawer maintains the account, is situated.
Explanation.—For the purposes of clause (a), where a cheque is delivered for collection at any branch of the bank of the payee or holder in due course, then, the cheque shall be deemed to have been delivered to the branch of the bank in which the payee or holder in due course, as the case may be, maintains the account.”So, the cheque bounce case can now be filed in the court which has jurisdiction over the place where the branch of the bank where the payee maintains the account, is situated. It is NOT at the place where the drawer of the cheque maintains the account. This is the latest position.
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 DhamijaAdvocateYour similar question has been answered at the following link, which replies to your present question also:
http://tilakmarg.com/forum/topic/divorce-on-mutual-concernsspeacial-act/
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 DhamijaAdvocateFor divorce on mutual consent under the Special Marriage Act (as mentioned in the title of your question), both of you will have to file a mutual consent divorce petition in the Family Court under Section 28 of the Special Marriage Act, 1954, which is as under:
“28. Divorce by mutual consent.—(1) Subject to the provisions of this Act and to the rules made thereunder, a petition for divorce may be presented to the district court by both the parties together on the ground that they have been living separately for a period of one year or more, that they have not been able to live together and that they have mutually agreed that the marriage should be dissolved.
(2) On the motion of both the parties made not earlier than six months after the date of the presentation of the petition referred to in sub-section (1) and not later than eighteen months after the said date, if the petition is not withdrawn in the meantime, the district court shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been solemnized under this Act, and that the averments in the petition are true, pass a decree declaring the marriage to be dissolved with effect from the date of the decree.”
Please consult some local lawyer of your area for the detailed procedure.
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 advisable for me to comment on facts without actually seeing the documents. But, from what you have mentioned, it appears that the 2 months notice clause is a part of the same 6 monthly contract. If so, then generally such clause would state that before the completion of the 6 months period, services may be terminated by giving a 2 months notice. In your case, you have said that the services were terminated on the completion of 6 months contract (i.e., on the last day), which means no fresh contract of 6 months was signed. In that situation, in the absence of a fresh / new 6 months contract, the 2 months notice may not be relevant since the contract itself comes to an end. But, as I mentioned above, this is what is based on limited knowledge of facts. Please consult your advocate who would have seen all relevant documents.
On the second issue, under Section 14(2) of the Administrative Tribunals Act, 1985, the Central Government, may by notification, extend the jurisdiction of the CAT to certain corporations / societies controlled by Central Government, etc. Once such a notification is issued, the high court and other courts (excluding the Supreme Court) will not have jurisdiction to entertain service matters of their employees. So, there is a legal bar. If such a notification has been issued in respect of your organisation (as you say, it was in 2008), then the high court will not have jurisdiction and CAT will have the original jurisdiction. The fact that previously for many other employees, the high court was entertaining petitions by mistake, will be no ground for high court to entertain your petition also once it has knowledge of such notification. So, in such a case, your petition may have to go to CAT.
Generally speaking, the high court may dispose of your petition with liberty to approach CAT. But, if the high court is willing to transfer your petition to CAT, that also should be alright. But, chances are that the high court will ask you to file a fresh petition in CAT.
There is no time limit for disposal of a case. Sometimes, they take years. There is a lot of pendency in most courts and even tribunals.
If the opposite party delays the matter, you’ll have to request the court / tribunal to expedite the matter and direct the opposite party or not to give the opposite party further time, etc.
You can approach the NCW, but their powers in this regard are 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.
Dr. Ashok DhamijaAdvocateFor what purpose, the cheque was issued?
Did you deliver some goods or services on the basis of the said cheque?
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 DhamijaAdvocateEven if there are more than one advocates appearing for an accused, they are considered as one unit. It cannot happen that one advocate takes one stand and another advocate takes another stand for the same accused, since both of them are representing the same person. So, even where there is a joint Vakalatnama on behalf of a single accused person, which has been signed by more than one advocate, they have to take a joint stand and they cannot take different stand for the same accused.
Secondly, citing accused person as a witness is only optional. It is not compulsory. In fact, generally an accused person is not produced as a witness. It is quite rare to produce an accused person as a witness in his own case. If the accused appears as a witness, then the public prosecutor gets a right to cross-examine the accused, which can sometimes become a double-edged weapon. So, usually, the defence advocates do not want to cite the accused person as a witness.
Rest of things you can ask from your advocate, because I don’t know what exactly is their intention or plan.
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 will depend on the facts and circumstances of the individual case and the nature of the individual piece of evidence. No hard and fast rule can be laid down. Please consult your advocate on such issues.
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 DhamijaAdvocateAs far as I understand, your law degree should be valid since you would have satisfied all conditions of the university and bar council of India while passing the law examination; otherwise they would not have awarded the law degree to you.
The problem, if any, may be from the Government department, since you did not obtain permission for getting law education while being on full time Government job. Sometimes, it may be considered as a misconduct for which some departmental penalty may be imposed. However, if your Government department knows about it and does not want to take any action, then just relax.
Getting education while in Government job without taking Government permission may be a misconduct under the Govt rules, but it may not be an offence. So, I don’t think there is any chance of arrest.
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.
March 21, 2017 at 12:20 pm in reply to: can police harrass the Complainant and enquire his clientele without accused #1200Dr. Ashok DhamijaAdvocateYou have said that the police has been asked by the court to conduct further investigation.
It is not clear whether the police is recording statements of your bankers, clients, demat service providers, in your case only or in some other case. Or, else, how the police is harassing them or conducting investigation, it is not clear.
You should try to ascertain whether the police is conducting investigation in your case and have registered some other FIR (against you or some other person).
Police can conduct investigation in all aspects of the case. If you feel that the police is deliberately doing the investigation wrongly, you can always bring it to the notice of the senior police officers or to the court which directed further investigation.
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 to comment and advise on the facts of the case, without seeing the documents in detail. A half-baked advice can be a wrong advice. Please show your documents to some local lawyer and take his advice.
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 ask a specific question relating to law that is relevant in your case, and do not ask an academic question. You are asking the question in respect of 3 different Acts as an academic exercise. What exactly is your case? Civil? Criminal? Cheque bouncing 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 you are referring to a criminal trial, then under Section 314 of the Cr.P.C., on completion of evidence, written arguments may be submitted to the trial court. This section is reproduced below:
“314. Oral arguments and memorandum of arguments.—(1) Any party to a proceeding may, as soon as may be, after the close of his evidence, address concise oral arguments, and may, before he concludes the oral arguments, if any, submit a memorandum to the Court setting forth concisely and under distinct headings, the arguments in support of his case and every such memorandum shall form part of the record.
(2) A copy of every such memorandum shall be simultaneously furnished to the opposite party.
(3) No adjournment of the proceedings shall be granted for the purpose of filing the written arguments unless the Court, for reasons to be recorded in writing, considers it necessary to grant such adjournment.
(4) The Court may, if it is of opinion that the oral arguments are not concise or relevant, regulate such arguments.”
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.
March 21, 2017 at 8:16 am in reply to: Regarding getting of passport in criminal case 438 (cheating case) #1195Dr. Ashok DhamijaAdvocateYou have mentioned that you were kidnapped and your documents, including passport, were snatched. I hope you would have filed a police case in that incident. If not, file that case, and report to the police about how you have lost the passport. The police can try to recover the passport from those responsible people.
In any case, if your passport is lost, you are required to immediately inform the nearest police station and and the passport office.
Thereafter, on the basis of the lost passport, you can apply for re-issue of the passport. You may contact the passport office for details or search the website http://passportindia.gov.in/ for more details.
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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