Dr. Ashok Dhamija
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January 16, 2017 at 3:29 pm in reply to: Transfer of a 10 year old pending cheque bounce case from Coimbatore to Delhi #1005
Dr. Ashok DhamijaAdvocateAs per Section 142(2)(a) of the Negotiable Instruments Act (the amended provision), the offence under Section 138 shall be inquired into and tried only by a court within whose local jurisdiction, 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.
This is the legal position. Your question does not clarify whether a Delhi court has jurisdiction in your case as per the above amended provision. If the Delhi court has jurisdiction as per the amended provision, then the Delhi court may accept the complaint and generally it should not take much time for the court to accept the case. But, you would be getting notice from the Delhi court as and when that court accept the case and sends you the notice.
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 16, 2017 at 3:17 pm in reply to: Agreeing for mutual consent divorce and then withdrawing #1003Dr. Ashok DhamijaAdvocateIf you are not willing for divorce and want to settle down with your husband, then you should not agree with mutual consent divorce under the belief that under this pretext you can go back to the husband’s house and then you may withdraw the consent for the mutual consent divorce.
Firstly, it is not sure whether you would be able to reside in your husband’s house merely because you agree for mutual consent divorce. Secondly, even if it is possible, then what is the guarantee that after you withdraw the consent for divorce at a later stage, your husband would still allow you to reside in his house?
The remedy for you would perhaps be to convince for residing together. If he does not agree, you can file a petition for restitution of conjugal rights. You can also apply for maintenance for yourself and your minor child. Also opposite his divorce petition if you are not agreeable for divorce, as you have mentioned.
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 read my following article, which answers your question: Consequences of Stop Payment on cheque dishonour when there is a dispute between parties.
As mentioned in the above article, the Supreme Court has held that “stop payment” instructions given by the drawer of the cheque do not really alter the character of a cheque dishonour case, provided all other ingredients of the offence defined under Section 138 of the Negotiable Instruments Act, 1881, are satisfied.
Once a cheque has been issued to you, and if it is dishonoured, then a presumption arises in your favour that it was issued for an existing debt or liability. A subsequent dispute about the amount to be paid may not help your opposite party much in so far as the cheque dishonour case is concerned, though he may have other civil remedies.
Therefore, if the cheque has bounced, then you can issue the legal notice and proceed further with the case under Section 138 of the Negotiable Instruments 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.
January 16, 2017 at 3:01 pm in reply to: Travelling to two opposing countries – requirement for 2 passports #1000Dr. Ashok DhamijaAdvocatePlease see my article at the following link, which answers your question: Is it an offence to hold two Indian passports and what punishment?.
In the above article, I have quoted Rule 13 of the Passport Rules, 1980, which is reproduced below:
“13. Issue of additional passport or travel document in special circumstances.- A person holding a passport or travel document shall not be entitled to another passport or travel document unless he surrenders to the passport authority the passport or travel document already held by him:
Provided that separate passports or travel documents may be issued to the same person in respect of different countries if it is necessary so to do for facilitating his visits to such countries.”
The Proviso to the above Rule 13 clearly states that separate passports or travel documents may be issued to the same person in respect of different countries if it is necessary so to do for facilitating his visits to such countries.
Therefore, you can apply for separate passports to the passport authorities in respect of visit to different countries if it is necessary so to do for facilitating his visits to such countries. If you can convince the passport authority about what you have mentioned, then the authority concerned may issue a second passport to you to visit different countries with opposite political views.
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 he has demanded / accepted the bribe, he may still be charged under Section 7 and 13 of the Prevention of Corruption Act, 1988, though it all depends on the detailed facts of the case.
Please note that Explanation (d) to Section 7 is as under:
“(d) “A motive or reward for doing.” A person who receives a gratification as a motive or reward for doing what he does not intend or is not in a position to do, or has not done, comes within this expression.”
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 speculate what charges would be leveled by bank since it all depends on detailed facts of the case. But, from what you have mentioned, it may be a case of misappropriation of money and/or criminal breach of trust and/or cheating.
Generally speaking, you should be in a position to resign (without retirement benefits) before domestic enquiry. However, voluntary retirement (with retirement benefits) may not be permitted. You may better check from your employer.
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 8, 2017 at 11:45 pm in reply to: NRI passport renewal with existing false 498a, DV, Maintenance case #994Dr. Ashok DhamijaAdvocateYour question is mostly covered in the following article: Can a person get passport during pendency of criminal case?
Renewal of passport may be subject to Indian laws, and this may be subject to the court’s permission as mentioned in the above article.
If the authorities in US are permitting you to live in India even beyond the validity of the passport, then you may not have a problem. But, those authorities may not permit you to do so, and may insist to get passport renewed. So, ultimately, you may have to apply for passport renewal and for that you may have to seek permission of the court, if needed, by filing an application through some local person in India, explaining that you are in India. If you conceal the information even after knowing about it, the same may be an offence / illegality in itself.
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.
December 31, 2016 at 9:58 am in reply to: Difference between section 173(7) and section 172(3) of crpc . #988Dr. Ashok DhamijaAdvocatePlease note that statement of a witness is recorded by police under Section 161/162 Cr.P.C. independently of the provisions of Section 172 which relates to case diary. A recent amendment (made in 2009) to Section 172 now requires that all statements under Section 161 are necessarily required to be inserted in case diary under Section 172. But, this does not mean that statements are not recorded separately under Section 161/162. They continue to be recorded under those sections. There is an additional requirement of inserting Section 161 statement in the case diary.
Please also note that case diary contains many other things in addition to the statements under Section 161. Case diary is declared as a privileged document in Section 172.
Further, copies of statements of witnesses that are given under Section 173 or Section 208 are the statements under Section 161 of Cr.P.C.
Merely because 161 statements are also inserted in case diary, it does not mean that copy of case should also be given since case diary contains many other things and the parliament, in its own wisdom, has laid down in Section 172 that it is a privileged document, the copy of which cannot be given to the accused.
Thus, there is no contradiction. It is just a policy adopted by law made by parliament.
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.
December 31, 2016 at 9:42 am in reply to: Transfer petition in Supreme court from one state to another #987Dr. Ashok DhamijaAdvocateIt depends. If the petition filed in high court for quashing is ONLY on the ground of jurisdiction, in that case the rejection of the transfer petition may have some impact on high court petition. However, in such a case, the Supreme Court itself may perhaps reject the transfer petition (or ask you to withdraw it) and ask you to pursue the high court petition.
On the other hand, if the high court petition is also on other grounds (such as on merits of the case), then the SC rejection may or may not have impact.
Also keep in mind that the power of the SC to transfer a case is irrespective of the jurisdiction, i.e., it is not necessary that you seek transfer only on the ground of jurisdiction. In fact, if you ask transfer only on the ground of jurisdiction, sometimes there is a likelihood that the SC may ask you to approach the competent court on the ground of jurisdiction.
So, it all depends on facts of the case. There is no hard and fast rule.
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.
December 25, 2016 at 8:46 am in reply to: Financier tress pass my property illegally occupaid and locked the door #982Dr. Ashok DhamijaAdvocateFile a private complaint in the court having jurisdiction for illegal trespass and other offences, if any. Also file a civil case, if necessary.
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.
December 24, 2016 at 2:20 pm in reply to: transfer petition for transfer of case from one state to another #980Dr. Ashok DhamijaAdvocateAny accused person can move the court for transfer of the case to another place. It is a right given to any party who is interested in the case.
See the full section 406 of Cr.P.C. I have highlighted the relevant part:
“406. Power of Supreme Court to transfer cases and appeals.— (1) Whenever it is made to appear to the Supreme Court that an order under this section is expedient for the ends of justice, it may direct that any particular case or appeal be transferred from one High Court to another High Court or from a Criminal Court subordinate to one High Court to another Criminal Court of equal or superior jurisdiction subordinate to another High Court.
(2) The Supreme Court may act under this section only on the application of the Attorney-General of India or of a party interested, and every such application shall be made by motion, which shall, except when the applicant is the Attorney-General of India or the Advocate-General of the State, be supported by affidavit or affirmation.
(3) Where any application for the exercise of the powers conferred by this section is dismissed, the Supreme Court may, if it is of opinion that the application was frivolous or vexatious, order the applicant to pay by way of compensation to any person who has opposed the application such sum not exceeding one thousand rupees as it may consider appropriate in the circumstances of 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.
December 23, 2016 at 8:25 pm in reply to: My case no SLP (civil) diary no 31805/2016.sir kindly send my case status at pre #978Dr. Ashok DhamijaAdvocateThere are 53 filing defects. It is yet to be formally registered as SLP.
Here is a copy of the status available online. But, next time, you should ask it from your advocate, who is supposed to tell you this information:
Status of : Diary Number 38105 OF 2016
Date of Filing : 15/11/2016
S. MALLIKA AND ORS. .Vs. R. SARAVANAN AND ANR.
Filed By : MR. K. KRISHNA KUMAR
State : Section : XII
Agency : HIGH COURT OF MADRAS
FOLLOWING ARE THE DEFECTS :
1. statement to be given as to whether LPA/WA lies against the judgment.
2. H/C particulars one time deleted from para 1 of SLP.
3. Whether the complete listing proforma has been filled in, signed and included in the paper-books? Yes
4. some exhibit in judgment but not filed.
5. statement to be given as to whether LPA/WA lies against the judgment.
6. Court fee is deficit by less Rs. 310/-/ more of court fee is required.
7. Vakalatnama is unsigned by the advocate.
8. Matter is within time delay to be removed and white O/R to be placed.
9. With prayer for IR to be mentioned on the cover page.
10. H/C particulars one time deleted from para 1 of SLP.
11. Whether the complete listing proforma has been filled in, signed and included in the paper-books? Yes
12. some exhibit in judgment but not filed.
13. statement to be given as to whether LPA/WA lies against the judgment.
14. Court fee is deficit by less Rs. 310/-/ more of court fee is required.
15. Vakalatnama is unsigned by the advocate.
16. Matter is within time delay to be removed and white O/R to be placed.
17. With prayer for IR to be mentioned on the cover page.
18. H/C particulars one time deleted from para 1 of SLP.
19. Whether the complete listing proforma has been filled in, signed and included in the paper-books? Yes
20. some exhibit in judgment but not filed.
21. statement to be given as to whether LPA/WA lies against the judgment.
22. statement to be given as to whether LPA/WA lies against the judgment.
23. statement to be given as to whether LPA/WA lies against the judgment.
24. Court fee is deficit by less Rs. 310/-/ more of court fee is required.
25. Vakalatnama is unsigned by the advocate.
26. Matter is within time delay to be removed and white O/R to be placed.
27. With prayer for IR to be mentioned on the cover page.
28. statement to be given as to whether LPA/WA lies against the judgment.
29. Court fee is deficit by less Rs. 310/-/ more of court fee is required.
30. Vakalatnama is unsigned by the advocate.
31. H/C particulars one time deleted from para 1 of SLP.
32. Matter is within time delay to be removed and white O/R to be placed.
33. With prayer for IR to be mentioned on the cover page.
34. Whether the complete listing proforma has been filled in, signed and included in the paper-books? Yes
35. some exhibit in judgment but not filed.
36. statement to be given as to whether LPA/WA lies against the judgment.
37. Court fee is deficit by less Rs. 310/-/ more of court fee is required.
38. Vakalatnama is unsigned by the advocate.
39. Matter is within time delay to be removed and white O/R to be placed.
40. With prayer for IR to be mentioned on the cover page.
41. H/C particulars one time deleted from para 1 of SLP.
42. Whether the complete listing proforma has been filled in, signed and included in the paper-books? Yes
43. some exhibit in judgment but not filed.
44. statement to be given as to whether LPA/WA lies against the judgment.
45. statement to be given as to whether LPA/WA lies against the judgment.
46. statement to be given as to whether LPA/WA lies against the judgment.
47. Court fee is deficit by less Rs. 310/-/ more of court fee is required.
48. Vakalatnama is unsigned by the advocate.
49. Matter is within time delay to be removed and white O/R to be placed.
50. With prayer for IR to be mentioned on the cover page.
51. H/C particulars one time deleted from para 1 of SLP.
52. Whether the complete listing proforma has been filled in, signed and included in the paper-books? Yes
53. some exhibit in judgment but not filed.
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 DhamijaAdvocateThese are generally policy matters and the policy has to be decided by the Government, normally, on case to case basis. Therefore, it is not possible to comment in general, whether the Government will close a specific autonomous body after scrutinizing its performance.
Again, whether the staff of an autonomous body would be absorbed in Government on closure of the autonomous body, would depend on the policy of Government in individual cases. There does not appear to be a general set of police in this regard. At least I have not come across any such general policy.
However, in case of closure of a unit, usually arrangement is made for the permanent employees in the form of VRS or absorption in some other unit, or payment of lump-sum amount as compensation. Moreover, depending on the type of activity being carried out by the unit / autonomous body, the labour laws or other employee related laws may come into play which protect the right of employees in certain ways, when the unit is being closed.
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 DhamijaAdvocateDemand for the payment of the amount of money is required to be made, by giving a notice in writing, to the drawer of the cheque, within 30 (thirty) days of the receipt of information by him from the bank regarding the return of the cheque as unpaid.
Also see for more details: Cheque bounce cases under Section 138 of Negotiable Instruments Act Explained.
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.
December 22, 2016 at 8:44 am in reply to: Participate Open court to verbally sy difficulty/irregularity with ChiefJustice #973Dr. Ashok DhamijaAdvocateUnlike an advocate, who can get entry in any room in Supreme Court, for a private person the pass is issued only for a particular court room where the case is listed or the relevant matter is there. So, you’ll have to make a request to the registry / concerned officer to permit you to visit the Chief Justice’s court to mention the matter. If it is not being permitted, then you may have to go to the Chambers Judge to highlight that his previous order of listing the matter has not been complied with.
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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