[Dr. Ashok Dhamija]

Yes, of course, a company can be made an accused in a case of cheque bouncing under Section 138 of the Negotiable Instruments Act, 1881, if the cheque was issued by the company from its own account. In fact, Section 141 of the N.I. Act specifically lays down that if the person committing an offence under Section 138 is a company, the company shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly along with every person who, at the time the offence was committed, was in charge of, and was responsible to the company for the conduct of the business of the company:

“141. Offences by companies.—(1) If the person committing an offence under Section 138 is a company, every person who, at the time the offence was committed, was in charge of, and was responsible to the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly:

Provided that nothing contained in this sub-section shall render any person liable to punishment if he proves that the offence was committed without his knowledge, or that he had exercised all due diligence to prevent the commission of such offence:

“Provided further that where a person is nominated as a Director of a company by virtue of his holding any office or employment in the Central Government or State Government or a financial corporation owned or controlled by the Central Government or the State Government, as the case may be, he shall not be liable for prosecution under this chapter.”

(2) Notwithstanding anything contained in sub-section (1), where any offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is attributable to, any neglect on the part of, any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly.

Explanation.—For the purposes of this section,—

(a) “company” means any body corporate and includes a firm or other association of individuals; and

(b) “director”, in relation to a firm, means a partner in the firm.”

In a recent case vide Standard Chartered Bank v. State of Maharashtra, (2016) 6 SCC 62, referring to the aforesaid Section 141, the Supreme Court held as under:

“On a perusal of the aforesaid provision, it is clear as crystal that if the person who commits an offence under Section 138 of the Act is a company, the company as well as other person in charge of or responsible to the company for the conduct of the business of the company at the time of commission of the offence is deemed to be guilty of the offence. …”.

In the case of Aneeta Hada v. Godfather Travels & Tours (P) Ltd., (2012) 5 SCC 661, a three-judge bench of the Supreme Court held as under:

“Section 141 uses the term “person” and refers it to a company. There is no trace of doubt that the company is a juristic person. The concept of corporate criminal liability is attracted to a corporation and company and it is so luminescent from the language employed under Section 141 of the Act. It is apposite to note that the present enactment is one where the company itself and certain categories of officers in certain circumstances are deemed to be guilty of the offence.”

In this case, the Supreme Court further held that:

“…the company can have criminal liability and further, if a group of persons that guide the business of the companies have the criminal intent, that would be imputed to the body corporate. In this backdrop, Section 141 of the Act has to be understood. The said provision clearly stipulates that when a person which is a company commits an offence, then certain categories of persons in charge as well as the company would be deemed to be liable for the offences under Section 138. Thus, the statutory intendment is absolutely plain. As is perceptible, the provision makes the functionaries and the companies to be liable and that is by deeming fiction. A deeming fiction has its own signification.”

In fact, in the above case of Aneeta Hada, the Supreme Court went on to hold as under:

“…commission of offence by the company is an express condition precedent to attract the vicarious liability of others. Thus, the words “as well as the company” appearing in the section make it absolutely unmistakably clear that when the company can be prosecuted, then only the persons mentioned in the other categories could be vicariously liable for the offence subject to the averments in the petition and proof thereof. One cannot be oblivious of the fact that the company is a juristic person and it has its own respectability. If a finding is recorded against it, it would create a concavity in its reputation. There can be situations when the corporate reputation is affected when a Director is indicted.”

In this manner, the Supreme Court, in the said case of Aneeta Hada, concluded that for maintaining the prosecution under Section 141 of the N.I. Act, arraigning of a company as an accused is imperative, and that the other categories of offenders [as per Section 141] can only be brought in the drag-net on the touchstone of vicarious liability as the same has been stipulated in the provision itself.

     

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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]

Normally, in the case of appeal in the high court against acquittal, the accused person will not be required to be present personally on every date. However, if he is not present then his advocate should remain present. But, the appellate court may require presence of the accused in court.

Whether the accused in such a case will need permission of the appellate court to visit abroad, will depend on the restrictions imposed as conditions on grant of bail. There is no hard and fast legal rule in this regard. It all depends on the conditions imposed by the court in every individual case. Generally speaking, the fact that the lower court acquitted the accused, should go in favour of the accused person at the appellate stage in the matters such as visits abroad.     

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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]

There are two types of offences – cognizable offences and non-cognizable offences. The expression “cognizable offence” has been defined in Section 2(c) of Cr.P.C. as under:

“(c) “cognizable offence” means an offence for which, and “cognizable case” means a case in which, a police officer may, in accordance with the First Schedule or under any other law for the time being in force, arrest without warrant;”.

And, a “non-cognizable offence has been defined in Section 2(l) as under:

“(l) “non-cognizable offence” means an offence for which, and “non-cognizable case” means a case in which, a police officer has no authority to arrest without warrant;”.

In cognizable offences, the police has the power to register F.I.R. under Section 154 of Cr.P.C. on the basis of the complaint given, and conduct the investigation without permission from the court. In such an offence, the police also has the power to arrest the accused person without warrant from the court.

But, in non-cognizable offences, the police cannot register the F.I.R. and it cannot conduct the investigation without orders of the court; also it cannot arrest the accused person without warrant from court. In such non-cognizable cases, the complainant has to file a complaint directly with the court and such complaint is generally called “private complaint”.

Likewise, even in cognizable offences, many a time, the police may refuse to register the FIR on one or other ground. In such a situation also, the complainant may file the complaint in the court, which is also known as “private complaint”.

Thus, a “private complaint” basically means a complaint which is directly filed by the complainant in the court. The Magistrate has the power to take cognizance of such private complaint under Section 190(1)(a) of the Cr.P.C., which is reproduced below:

“190. Cognizance of offences by Magistrates.— (1) Subject to the provisions of this Chapter, any Magistrate of the first class, and any Magistrate of the second class specially empowered in this behalf under sub-section (2), may take cognizance of any offence—

(a) upon receiving a complaint of facts which constitute such offence;

(b) upon a police report of such facts;

(c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed.

(2) The Chief Judicial Magistrate may empower any Magistrate of the second class to take cognizance under sub-section (1) of such offences as are within his competence to inquire into or try.” [Emphasis and underlining supplied]

Also read: Difference between a criminal complaint filed under section 200 and 190 of Cr.P.C.

     

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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]

When you file SLP in the Supreme Court, initially a Diary No. is given immediately after filing. This is only a temporary number. After that the SLP is checked for defects, if any. Your advocate is required to remove the defects, if any, pointed out by the registry of the Supreme Court. Once the defects of filing are removed, a regular SLP (Civil) or SLP (Criminal) number is given to the case, after which the case is listed before the court.

For checking the case status of the SLP, please the following web page:

http://courtnic.nic.in/supremecourt/casestatus_new/caseno_new_alt.asp

On that page, on the left side, you would see a vertical menu bar with a link called “Diary Number”. Click on this link.

On the next page that appears, input your Diary Number in the box provided for that purpose and also input the year (i.e., the year in which Diary No. was provided). Thereafter, click “Submit” button.

Now you will see the case status of the Diary Number provided by 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]

Return of the plaint is governed by Order 7 Rule 10 and 10A of the Civil Procedure Code (CPC). Rejection of a plaint is governed by Order 7 Rule 11 of the CPC.

Where at any stage of the suit, the Court finds that it has no jurisdiction to try that suit, either with regard to territorial or pecuniary reasons or with regard to the subject matter of the suit, it will return the plaint for being presented to the proper Court in which the suit ought to have been filed. This is covered mainly in Order 7 Rule 10 of CPC as return of the plaint.

On the other hand, if any one of the six conditions mentioned in Order 7 Rule 11 is satisfied, the court may reject the suit.

The relevant Rules 10, 10-A, 11, 12 and 13 of Order 7 of CPC are reproduced below:

“10. Return of plaint.— (1) Subject to the provisions of Rule 10-A, the plaint shall] at any stage of the suit be returned to be presented to the Court in which the suit should have been instituted.

Explanation.—For the removal of doubts, it is hereby declared that a court of appeal or revision may direct, after setting aside the decree passed in a suit, the return of the plaint under this sub-rule.

(2) Procedure on returning plaint.—On returning a plaint the Judge shall endorse thereon the date of its presentation and return, the name of the party presenting it, and a brief statement of the reasons for returning it.”

“10-A. Power of Court to fix a date of appearance in the Court where plaint is to be filed after its return.—(1) Where, in any suit, after the defendant has appeared, the Court is of opinion that the plaint should be returned, it shall, before doing so, intimate its decision to the plaintiff.

(2) Where an intimation is given to the plaintiff under sub-rule (1), the plaintiff may make an application to the Court—

(a) specifying the Court in which he proposes to present the plaint after its return,

(b) praying that the Court may fix a date for the appearance of the parties in the said Court, and

(c) requesting that the notice of the date so fixed may be given to him and to the defendant.

(3) Where an application is made by the plaintiff under sub-rule (2), the Court shall, before returning the plaint and notwithstanding that the order for return of plaint was made by it on the ground that it has no jurisdiction to try the suit,—

(a) fix a date for the appearance of the parties in the Court in which the plaint is proposed to be presented, and

(b) give to the plaintiff and to the defendant notice of such date for appearance.

(4) Where the notice of the date for appearance is given under sub-rule (3),—

(a) it shall not be necessary for the Court in which the plaint is presented after its return, to serve the defendant with a summons for appearance in the suit, unless that Court, for reasons to be recorded, otherwise directs, and

(b) the said notice shall be deemed to be a summons for the appearance of the defendant in the Court in which the plaint is presented on the date so fixed by the Court by which the plaint was returned.

(5) Where the application made by the plaintiff under sub-rule (2) is allowed by the Court, the plaintiff shall not be entitled to appeal against the order returning the plaint.”

“11. Rejection of plaint.— The plaint shall be rejected in the following cases:—

(a) where it does not disclose a cause of action;

(b) where the relief claimed is undervalued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so;

(c) where the relief claimed is properly valued but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so;

(d) where the suit appears from the statement in the plaint to be barred by any law;

(e) where it is not filed in duplicate;

(f) where the plaintiff fails to comply with the provisions of Rule 9;

Provided that the time fixed by the Court for the correction of the valuation or supplying of the requisite stamp-papers shall not be extended unless the Court, for reasons to be recorded, is satisfied that the plaintiff was prevented by any cause of an exceptional nature from correcting the valuation or supplying the requisite stamp-papers, as the case may be, within the time fixed by the Court and that refusal to extend such time would cause grave injustice to the plaintiff.”

“12. Procedure on rejecting plaint.— Where a plaint is rejected the Judge shall record an order to that effect with the reasons for such order.”

“13. Where rejection of plaint does not preclude presentation of fresh plaint.— The rejection of the plaint on any of the grounds hereinbefore mentioned shall not of its own force preclude the plaintiff from presenting a fresh plaint in respect of the same cause of action.”

     

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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]

Legal status of “pre-incorporation contracts” is slightly complicated. It is true that the promotors of the company may have to enter into certain contracts with third parties before the company is actually incorporated. However, a contract requires two existing parties who enter into an agreement. If the company (on whose behalf the contract is being entered into, before its incorporation) is non-existing, and is yet to be incorporated, then a contract on its behalf would mean that there are not two competent / existing parties to the contract and the contract may be invalid. There does not appear to be any provisions in the Companies Act for validating such pre-incorporation contracts. However, there are provisions in the Specific Relief Act, 1963, under which such pre-incorporation contracts on behalf of a non-existing company may be valid and may be enforced in favour of or against the company, if the conditions mentioned those provisions are satisfied.

Section 15(h) of the Specific Relief Act provides as under:

“15. Who may obtain specific performance.—Except as otherwise provided by this Chapter, the specific performance of a contract may be obtained by—

*** *** ***

(h) when the promoters of a company have, before its incorporation, entered into a contract for the purposes of the company, and such contract is warranted by the terms of the incorporation, the company:

Provided that the company has accepted the contract and has communicated such acceptance to the other party to the contract.”

Therefore, a company may obtain specific performance of a pre-incorporation contract if the following conditions are satisfied:

• the promoters of the company have, before its incorporation, entered into a contract for the purposes of the company;
• such contract is warranted by the terms of the incorporation; and,
• the company has accepted the contract and has communicated such acceptance to the other party to the contract.

Likewise, Section 19(e) of the Specific Relief Act provides as under:

“19. Relief against parties and persons claiming under them by subsequent title.—Except as otherwise provided by this Chapter, specific performance of a contract may be enforced against—

*** *** ***

(e) when the promoters of a company have, before its incorporation entered into a contract for the purpose of the company and such contract is warranted by the terms of the incorporation, the company:

Provided that the company has accepted the contract and communicated such acceptance to the other party to the contract.”

Therefore, specific performance of a pre-incorporation contract may be obtained against a company if the following conditions are satisfied:

• the promoters of the company have, before its incorporation, entered into a contract for the purposes of the company;
• such contract is warranted by the terms of the incorporation; and,
• the company has accepted the contract and has communicated such acceptance to the other party to the contract.

Therefore, in the situations mentioned above, a pre-incorporation contract be enforced by or against the company if the above conditions are satisfied. Otherwise, generally speaking, a pre-incorporation contract may not bind the company and the promotors themselves may be liable for the consequences.

      

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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. Now, under the provisions of sub-section (2) of Section 142 of the Negotiable Instruments Act, 1881, the case of cheque dishonour under Section 138 thereof can be filed in a court only as per the following provisions (this is applicable since 15 June 2015):

“(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.”

Therefore, it is not possible to file a cheque bounce case at any other place than is permissible under Section 142(2) of the N.I. Act as 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]

On completion of investigation in a cognizable offence, after registration of FIR, the police is required to file a report under Section 173 of the Criminal Procedure Code before the Magistrate, which may is also called final report or police report. This report contains the result of the investigation. In particular, this report is required to be contain the following details: (a) the names of the parties; (b) the nature of the information; (c) the names of the persons who appear to be acquainted with the circumstances of the case; (d) whether any offence appears to have been committed and, if so, by whom; (e) whether the accused has been arrested; (f) whether he has been released on his bond and, if so, whether with or without sureties; (g) whether he has been forwarded in custody under Section 170; (h) whether the report of medical examination of the woman has been attached where investigation relates to an offence under Sections 376, 376-A, 376-B, 376-C, 376-D or Section 376-E of the Indian Penal Code.

It is clear from the (d) above that the said report also contains the information “whether any offence appears to have been committed and, if so, by whom”. This implies that the said final report is required to be submitted to the Magistrate irrespective of whether the investigation discloses commission of the offence or it discloses that no offence has been committed. In fact, generally, following four situations may arise after completion the investigation by police:

(1) It is found that offence has been committed and there is sufficient evidence to prosecute the accused person(s) who has/have committed the offence.

(2) It is found that offence has been committed, but sufficient evidence is not available to prosecute the accused persons.

(3) It is found that the FIR was falsely lodged by the complainant.

(4) It is found that no offence was committed as alleged in the FIR.

In all these situations, a final report is filed by police before the Magistrate.

And, in particular, if the investigation has resulted in the first situation, as mentioned in (1) above, i.e., that the offence has been committed and there is sufficient evidence to prosecute the accused person(s) who has/have committed the offence, then the final report submitted is also called “charge sheet”. In the remaining three situations, the final report may also be called closure report.

Thus, charge sheet is a specific type of final report which is submitted on completion of the investigation when it is found that the offence has been committed and there is sufficient evidence to prosecute the accused person(s) who has/have committed the offence. The words “charge sheet” are not mentioned in the Cr.P.C.; the law uses the words “report” or “police report”.

     

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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 advisable to go to media before review petition, etc.

Secondly, it is not possible to comment on facts of the case unless one goes through detailed papers.

Thirdly, when you already have senior counsel (such as a retired Judge of High Court on your side) appearing in the case, why don’t take their advice, since only a person who has seen the papers would be in a position to comment in detail on facts. Closing this question.     

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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 question has been already answered recently by a 3-judge bench of the Supreme Court in the case of A.C. Narayanan v. State of Maharashtra, (2014) 11 SCC 790, as under:

“33.1. Filing of complaint petition under Section 138 of the NI Act through power of attorney is perfectly legal and competent.

33.2. The power-of-attorney holder can depose and verify on oath before the court in order to prove the contents of the complaint. However, the power-of-attorney holder must have witnessed the transaction as an agent of the payee/holder in due course or possess due knowledge regarding the said transactions.

33.3. It is required by the complainant to make specific assertion as to the knowledge of the power-of-attorney holder in the said transaction explicitly in the complaint and the power-of-attorney holder who has no knowledge regarding the transactions cannot be examined as a witness in the case.

33.4. In the light of Section 145 of the NI Act, it is open to the Magistrate to rely upon the verification in the form of affidavit filed by the complainant in support of the complaint under Section 138 of the NI Act and the Magistrate is neither mandatorily obliged to call upon the complainant to remain present before the Court, nor to examine the complainant of his witness upon oath for taking the decision whether or not to issue process on the complaint under Section 138 of the NI Act.

33.5. The functions under the general power of attorney cannot be delegated to another person without specific clause permitting the same in the power of attorney. Nevertheless, the general power of attorney itself can be cancelled and be given to another person.”

Therefore, it is possible for the power of attorney holder to file a complaint for cheque dishonour under Section 138 of the Negotiable Instruments Act, without permission of the Magistrate, subject to the conditions mentioned above by the Supreme Court in the above case.

     

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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 simple language, where a person, by spoken or written words, or by signs (such as gestures) or by visible representations, makes or publishes any imputation concerning any person to harm the reputation of such person, he is said to defame that person. Thus, defamation is an act of making or publishing of defamatory content to harm the reputation of some person (who may be an individual or any other entity such as a company).

In India, defamation can be of two types, civil defamation and criminal defamation. Civil defamation is covered under law of torts, in which the damages or compensation may be awarded against the person who defamed. On the other hand, criminal defamation is defined in Section 499 of Indian Penal Code (IPC) and is punishable under Section 500 thereof. Criminal defamation is punishable with simple imprisonment for a term which may extend to two years, or with fine, or with both. The offence of criminal defamation is non-cognizable (which means you have file the private complaint with court and the police will not register FIR), bailable (accused has a right to get bail), and compoundable (i.e., it can be compromised by the two parties, even without the permission of the court).

In a defamation, if the offending material is published in some fleeting form, such as by spoken words or sounds, sign language, gestures and the like, then this is called slander. On the other hand, if the defamation is by written or printed words, pictures, or in any form other than by spoken words or gestures, then it is generally called libel.

It is possible to file cases for civil defamation and criminal defamation simultaneously, since both serve different purposes even though both may be arising out of the same defamatory act.

Section 499 of IPC:

“499. Defamation.—Whoever, by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person, is said, except in the cases hereinafter excepted, to defame that person.

Explanation 1.—It may amount to defamation to impute anything to a deceased person, if the imputation would harm the reputation of that person if living, and is intended to be hurtful to the feelings of his family or other near relatives.

Explanation 2.—It may amount to defamation to make an imputation concerning a company or an association or collection of persons as such.

Explanation 3.—An imputation in the form of an alternative or expressed ironically, may amount to defamation.

Explanation 4.—No imputation is said to harm a person’s reputation, unless that imputation directly or indirectly, in the estimation of others, lowers the moral or intellectual character of that person, or lowers the character of that person in respect of his caste or of his calling, or lowers the credit of that person, or causes it to be believed that the body of that person is in a loathsome state, or in a state generally considered as disgraceful.

Illustrations

(a) A says—“Z is an honest man; he never stole B‘s watch”: intending to cause it to be believed that Z did steal B‘s watch. This is defamation, unless it falls within one of the exceptions.

(b) A is asked who stole B‘s watch. A points to Z, intending to cause it to be believed that Zstole B‘s watch. This is defamation, unless it falls within one of the exceptions.

(c) A draws a picture of Z running away with B‘s watch intending it to be believed that Zstole B‘s watch. This is defamation, unless it falls within one of the exceptions.

First Exception.—Imputation of truth which public good requires to be made or published.—It is not defamation to impute anything which is true concerning any person, if it be for the public good that the imputation should be made or published. Whether or not it is for the public good is a question of fact.

Second Exception.—Public conduct of public servants.—It is not defamation to express in good faith any opinion whatever respecting the conduct of a public servant in the discharge of his public functions, or respecting his character, so far as his character appears in that conduct, and no further.

Third Exception.—Conduct of any person touching any public question.—It is not defamation to express in good faith any opinion whatever respecting the conduct of any person touching any public question, and respecting his character, so far as his character appears in that conduct, and no further.

Illustration

It is not defamation in A to express in good faith any opinion whatever respecting Z‘s conduct in petitioning Government on a public question, in signing a requisition for a meeting on a public question, in presiding or attending at such meeting, in forming or joining any society which invites the public support, in voting or canvassing for a particular candidate for any situation in the efficient discharge of the duties of which the public is interested.

Fourth Exception.—Publication of reports of proceedings of courts.—It is not defamation to publish a substantially true report of the proceedings of a Court of Justice, or of the result of any such proceedings.

Explanation.—A Justice of the Peace or other officer holding an enquiry in open Court preliminary to a trial in a Court of Justice, is a Court within the meaning of the above section.

Fifth Exception.—Merits of case decided in Court or conduct of witnesses and others concerned.—It is not defamation to express in good faith any opinion whatever respecting the merits of any case, civil or criminal, which has been decided by a Court of Justice, or respecting the conduct of any person as a party, witness or agent, in any such case, or respecting the character of such person, as far as his character appears in that conduct, and no further.

Illustrations

(a) A says—“I think Z‘s evidence on that trial is so contradictory that he must be stupid or dishonest.” A is within this exception if he says this in good faith, inasmuch as the opinion which he expresses respects Z‘s character as it appears in Z‘s conduct as a witness, and no further.

(b) But if A says—“I do not believe what Z asserted at that trial because I know him to be a man without veracity”; A is not within this exception, inasmuch as the opinion which he expresses of Z‘s character, is an opinion not founded on Z‘s conduct as a witness.

Sixth Exception.—Merits of public performance.—It is not defamation to express in good faith any opinion respecting the merits of any performance which its author has submitted to the judgment of the public, or respecting the character of the author so far as his character appears in such performance, and no further.

Explanation.—A performance may be submitted to the judgment of the public expressly or by acts on the part of the author which imply such submission to the judgment of the public.

Illustrations

(a) A person who publishes a book, submits that book to the judgment of the public.

(b) A person who makes a speech in public, submits that speech to the judgment of the public.

(c) An actor or singer who appears on a public stage, submits his acting or singing to the judgment of the public.

(d) A says of a book published by Z—“Z‘s book is foolish; Z must be a weak man. Z‘s book is indecent; Z must be a man of impure mind.” A is within the exception, if he says this in good faith, inasmuch as the opinion which he expresses of Z respects Z‘s character only so far as it appears in Z‘s book, and no further.

(e) But if A says—“I am not surprised that Z‘s book is foolish and indecent, for he is a weak man and a libertine.” A is not within this exception, inasmuch as the opinion which he expresses of Z‘s character is an opinion not founded on Z‘s book.

Seventh Exception.—Censure passed in good faith by person having lawful authority over another.—It is not defamation in a person having over another any authority, either conferred by law or arising out of a lawful contract made with that other, to pass in good faith any censure on the conduct of that other in matters to which such lawful authority relates.

Illustration

A judge censuring in good faith the conduct of a witness, or of an officer of the Court; a head of a department censuring in good faith those who are under his orders; a parent censuring in good faith a child in the presence of other children; a schoolmaster, whose authority is derived from a parent, censuring in good faith a pupil in the presence of other pupils; a master censuring a servant in good faith for remissness in service; a banker censuring in good faith the cashier of his bank for the conduct of such cashier as such cashier—are within this exception.

Eighth Exception.—Accusation preferred in good faith to authorised person.—It is not defamation to prefer in good faith an accusation against any person to any of those who have lawful authority over that person with respect to the subject-matter of accusation.

Illustration

If A in good faith accuses Z before a Magistrate; if A in good faith complains of the conduct of Z, a servant, to Z‘s master; if A in good faith complains of the conduct of Z, a child, to Z‘s father—A is within this exception.

Ninth Exception.—Imputation made in good faith by person for protection of his or other’s interests.—It is not defamation to make an imputation on the character of another provided that the imputation be made in good faith for the protection of the interest of the person making it, or of any other person, or for the public good.

Illustrations

(a) A, a shopkeeper, says to B, who manages his business—“Sell nothing to Z unless he pays you ready money, for I have no opinion of his honesty.” A is within the exception, if he has made this imputation on Z in good faith for the protection of his own interests.

(b) A, a Magistrate, in making a report to his own superior officer, casts an imputation on the character of Z. Here, if the imputation is made in good faith, and for the public good, A is within the exception.

Tenth Exception.—Caution intended for good of person to whom conveyed or for public good.—It is not defamation to convey a caution, in good faith, to one person against another, provided that such caution be intended for the good of the person to whom it is conveyed, or of some person in whom that person is interested, or for the public good.”

     

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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 can try the review petition if you are aggrieved by the order in the SLP if you feel that there is an error apparent on record. If a review petition is dismissed, then only curative petition can be considered. However, be aware that chances of success in review petition and curative petition are generally much less.     

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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]

Arrest is not mandatory. If the police has not arrested you so far during the investigation, then at the time of filing charge sheet, generally speaking the police will ask you to be present in court directly at the time of filing / consideration of charge sheet, at which time the court may generally grant you bail. However, this is what is general practice, and there may be some variance from this practice in an individual case.

If you want to get bail before arrest, then you can try anticipatory bail which can be granted by the Sessions Court or the High Court under Section 438 Cr.P.C.     

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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 perhaps have to refer to the byelaws of your own society. The Maharashtra Co-operative Societies Act appears to be silent 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]

For (1) & (2), you may request / apply to the court to provide copies of those documents / statements that have not been given to you.

For (3), transfer of the case to another judge may be possible if you can show proof of the strong bias of the judge which may show that there would be miscarriage of justice. Offence under Section 498A IPC is triable by a Magistrate court. The court of Chief Judicial Magistrate has the power to transfer a case from one Magistrate court to another. You can make an application if you so wish.

For (4), you may request the court for adjourning the date for framing the charge if you have a justifiable reason. It is up to the court to agree or not.

     

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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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