Dr. Ashok Dhamija
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November 5, 2016 at 3:38 pm in reply to: Provided incorrect salary information in salary slip for credit card #861
Dr. Ashok DhamijaAdvocateThis may amount to the offence of forgery. Your friend will have to fight the case on merits of the case. He may consult some local lawyer, at the place where he lives, by showing the papers.
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.
November 5, 2016 at 9:22 am in reply to: Voice recording prior registration of FIR in the PC Act 1988 #859Dr. Ashok DhamijaAdvocateI think there is nothing in law that prohibits voice recording before registration of FIR. How much weight can be attached with the voice recording, and whether it is reliable and trustworthy, is a different question. You may perhaps have to argue on merits of the voice recording.
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.
November 5, 2016 at 9:19 am in reply to: Non-appearance of petitioner in CrPC125 after award of Interim Maintenance #858Dr. Ashok DhamijaAdvocateThis is a repetition of your previous question on the same issue. Please see the answer at:
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 DhamijaAdvocateWhen you argue the case, generally you argue the whole case. It is up to you whether you want to argue on a single prayer or all the prayers. Sometimes, people confine their arguments to some limited issues, while not pressing the other issues. It is your choice. Unless the court agrees to keep other issues open, the petition is disposed of in whole. Sometimes, the court may even observe that other issues were not pressed, hence they are not decided, but the petition may be disposed of.
Therefore, once the final arguments have taken place, the petition can be disposed of completely. Wait for the written order of the 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 DhamijaAdvocateSection 498A is a non-compoundable offence, which means that the case will have to be got quashed from the High Court after both parties compromise.
For mutual consent divorce, both of you will have to file a petition in the family court for that purpose.
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 DhamijaAdvocatePursis or Purshis is a statement in writing or a written statement that is submitted to a court desiring that the information be included as a part of evidence. Pursis can mean a statement submitted to the court about any settlements between the parties. It can be submitted to the court by either party in a case or his advocate. It can also be submitted jointly by both parties. The purpose is to give the court information on facts or compromise or some other information relevant to the case.
For example, for 498-A / DV cases, a threat given by one party to the other can be submitted to the court in the form of pursis. A compromise by two parties may be submitted to the court in the form of pursis.
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.
October 31, 2016 at 4:42 pm in reply to: Can a company transfer property by transfer of shares without paying stamp duty? #846Dr. Ashok DhamijaAdvocateYes. I think it should be possible to transfer the property that the private limited company holds, along with the private company itself, by way of transfer of its shares to another person or group of persons.
What basically this means is that the ownership of the shares of the company is being transferred to another set of persons who will now own the shares of the company. Thus, the management of the company will change and the ownership of its shares will also change hands. The property (i.e., building along with land) that belongs to the private limited company will still continue to be under the ownership of the same company. But, the persons who control the property will change with the change in management of the company. Thus, there is no change in ownership of the property or we can say that the property itself has not been transferred. But, the ownership of the shares of the company itself has changed, i.e., the management of the company has changed. Thus, while the property is still owned by the same company, the persons who run the company have changed. Therefore, indirectly, the property is now controlled by different people, even though, in law, the ownership of property continues to be with the same company.
Since the owner of the property continues to be the same company and there is no transfer of ownership of the property, there may be no payment of stamp duty.
However, whatever legal formalities for transfer of ownership of the shares (and management) of the private limited company are needed, the same will have to be completed.
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 per the website of Reserve Bank of India (RBI), a Non-Banking Financial Company (NBFC) is explained as under:
A Non-Banking Financial Company (NBFC) is a company registered under the Companies Act, 1956 engaged in the business of loans and advances, acquisition of shares / stocks / bonds / debentures / securities issued by Government or local authority or other marketable securities of a like nature, leasing, hire-purchase, insurance business, chit business but does not include any institution whose principal business is that of agriculture activity, industrial activity, purchase or sale of any goods (other than securities) or providing any services and sale/purchase/construction of immovable property. A non-banking institution which is a company and has principal business of receiving deposits under any scheme or arrangement in one lump sum or in installments by way of contributions or in any other manner, is also a non-banking financial company (Residuary non-banking company).
RBI website states that NBFCs lend and make investments and hence their activities are akin to that of banks; however there are a few differences between NBFCs and Banks as given below:
(1) NBFC cannot accept demand deposits;
(2) NBFCs do not form part of the payment and settlement system and cannot issue cheques drawn on itself;
(3) deposit insurance facility of Deposit Insurance and Credit Guarantee Corporation is not available to depositors of NBFCs, unlike in case of banks.
In view of the above, it is clear that NBFC has to be registered in much the same way as any other company is registered under the Companies Act, subject to the conditions mentioned above.
On the issue whether it is necessary that every NBFC should be registered with RBI, the RBI website states that:
In terms of Section 45-IA of the RBI Act, 1934, no Non-banking Financial company can commence or carry on business of a non-banking financial institution without a) obtaining a certificate of registration from the RBI and without having a Net Owned Funds of ₹ 25 lakhs (₹ Two crore since April 1999). However, in terms of the powers given to the RBI, to obviate dual regulation, certain categories of NBFCs which are regulated by other regulators are exempted from the requirement of registration with RBI viz. Venture Capital Fund/Merchant Banking companies/Stock broking companies registered with SEBI, Insurance Company holding a valid Certificate of Registration issued by IRDA, Nidhi companies as notified under Section 620A of the Companies Act, 1956, Chit companies as defined in clause (b) of Section 2 of the Chit Funds Act, 1982,Housing Finance Companies regulated by National Housing Bank, Stock Exchange or a Mutual Benefit company.
On the issue as to what are the requirements for registration with RBI, it is stated that:
A company incorporated under the Companies Act, 1956 and desirous of commencing business of non-banking financial institution as defined under Section 45 I(a) of the RBI Act, 1934 should comply with the following:
(1) it should be a company registered under Section 3 of the companies Act, 1956
(2) It should have a minimum net owned fund of ₹ 200 lakh. (The minimum net owned fund (NOF) required for specialized NBFCs like NBFC-MFIs, NBFC-Factors, CICs is indicated separately in the FAQs on specialized NBFCs).
Please see the RBI website 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.
October 31, 2016 at 3:04 pm in reply to: Blank cheque bounce – liability of person signing when he is no more in company #842Dr. Ashok DhamijaAdvocateIt may not be possible to give any definitive opinion in view of complicated facts of the case unless one has seen the detailed papers. Please consult some local lawyer by showing him your papers.
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.
October 31, 2016 at 2:50 pm in reply to: Notice for cheque dishonour for full amount of cheque or for due amount? #841Dr. Ashok DhamijaAdvocatePlease see my following article in which the answer to your question is covered broadly:
Cheque bouncing under S. 138 N.I. Act where cheque amount is more than liability.
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 DhamijaAdvocateAnswers:
(1) Yes. He can remain present.
(2) This is a question of fact. What happened in an individual case can be explained in absolute terms.
(3) Accused can cross-examine the witnesses of the prosecution. If the accused has engaged a lawyer, then his lawyer does the cross-examination. This is written in the Evidence Act itself.
(4) Accused cannot be compelled to answer the questions under Section 313 Cr.P.C. In fact, sub-section (3) of Section 313 itself makes it clear. So, he is free to answer or not to answer. But, the silence of accused may sometimes be considered as an adverse circumstance in respect of that question.
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.
October 30, 2016 at 12:06 am in reply to: Delay in filing of cheque bounce case, can it be filed now? #838Dr. Ashok DhamijaAdvocateUnder the provisions of Section 138 of Negotiable Instruments Act, following 3 conditions are required to be satisfied:
(a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier;
(b) the payee makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within thirty days of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and
(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.
If all the above 3 conditions have been satisfied, then the case under Section 138 is required to be filed within one month of cause of action arising out of condition (c) above. This is what is laid down in Section 142 of the Act.
In your case, it is not clear whether these conditions are satisfied and the time limits mentioned above have been adhered to. In any case, it appears that there is a delay in filing of the case beyond the period of one month allowed under Section 142.
If other conditions [as mentioned in (a) to (c) above] have been satisfied, but there is delay in filing the complaint beyond one month permissible, then you may still try to file the case along with an application for condonation of delay since Proviso to Section 142(1)(b) permits condonation of delay in justifiable circumstances:
“Provided that the cognizance of a complaint may be taken by the court after the prescribed period, if the complainant satisfies the court that he had sufficient cause for not making a complaint within such period.”
If the reasons for delay are properly explained and the court is satisfied, it may entertain the complaint even beyond the permissible period of one month.
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.
October 27, 2016 at 7:08 pm in reply to: Jurisdiction of court for restitution of conjugal rights petition for Hindu #834Dr. Ashok DhamijaAdvocateA petition for restitution of conjugal rights in respect of a Hindu marriage can be filed in the Family Court (wherever it has been set up), and where Family Court has not been set up, it can be filed in the District Court.
Now, the issue as to in which city or area, such petition needs to be filed, is governed by the provisions of Section 19 of the Hindu Marriage Act, 1955:
“19. Court to which petition shall be presented.—Every petition under this Act shall be presented to the district court within the local limits of whose ordinary original civil jurisdiction—
(i) the marriage was solemnized, or
(ii) the respondent, at the time of the presentation of the petition resides, or
(iii) the parties to the marriage last resided together, or
(iii-a) in case the wife is the petitioner, where she is residing on the date of presentation of the petition, or
(iv) the petitioner is residing at the time of the presentation of the petition, in a case where the respondent is, at that time, residing outside the territories to which this Act extends, or has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of him if he were alive.”
In your case, since you as wife, want to become the petitioner, and since you reside at Pune, you can file the petition for restitution of conjugal rights at Pune itself where you reside. Alternatively, you can also file it at the place where your marriage was solemnized, or where your husband resides, or where both of you last resided together. Since it appears that Pune has a Family Court, so you can file this petition in Family Court at Pune. [Note: It is seen that in Maharashtra, the Family Courts Act, 1984, was enforced with effect from 1-12-1986 vide the Notification No. 79/18/85-Jus., dared September 18, 1986.]
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.
October 27, 2016 at 3:01 pm in reply to: 420,468 Fir has been registered on me in 2015 But still police didnot arrest m #832Dr. Ashok DhamijaAdvocateIt is not mandatory to arrest the accused person in a case. Rather you should feel happy that the police has not arrested you.
FIR is registered on the basis of the complaint given to police that discloses commission of a cognizable offence. At that stage, evidence is yet to be collected. It is only after completion of the investigation that it can be decided by police whether the evidence is sufficient to charge sheet the accused. So, wait till completion of the 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 DhamijaAdvocateYes, the accused has the right to object immediately. His lawyer can immediately inform the court verbally, and if possible, in writing also. If there is a likelihood of an irreparable harm being caused, a written objection may be filed.
There is a practice of giving copy of the statement of the prosecution witness immediately after it is recorded and it is done on the same day. This facilitates cross-examination by the lawyer of the accused. All such statements of prosecution witnesses form part of record of the case (see Sections 274, 275 and 276 of Cr.P.C.). The accused has a right to get copies of all records 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.
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