[Dr. Ashok Dhamija]

Yes. The lower court (i.e., the trial court) has the power to discharge an accused after the filing of the charge sheet. Once the accused is discharged, he will no more remain charged of that offence.

Second part of your question is not clear. Perhaps, you want to ask the question as to whether it is possible for a person (other than the husband) to get discharged from a criminal case under Section 498-A IPC and 406 IPC (it is not 306 IPC, as you have mentioned; and, 306 Cr.P.C. relates to tendering of pardon which may not be relevant to your question). If this is the question, then I may reply that legally there is no bar on the discharge of a third person (i.e., other than the husband). Now, whether or not such person will actually be discharged will depend on the facts and circumstances of each case and no general rule can be laid down in this regard.

     

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

[Dr. Ashok Dhamija]

As per the provisions of Section 13-B of the Hindu Marriage Act, in the case of divorce by mutual consent, a minimum of 6 months’ period is necessary for passing the decree of divorce after the filing of the mutual consent petition. However, you have mentioned that you had earlier filed a divorce petition and the family court has already converted your existing divorce petition into a mutual consent petition and also that the family court has already passed order waiving the said period of 6 months. If that be the case, then it should generally be possible for the decree of divorce being passed on the next date; of course, it may depend on the discretion of the court.

Whether you should pay the full settlement amount on the first date in one instalment or whether it should be paid in two instalments, will depend on the terms of your agreement with your wife. It is for both the parties to agree, also depending upon your level of mutual trust and confidence. There is no hard and fast rule as to whether it is safe to pay the amount in one instalment in advance; it is not a question of law; it is a question of your mutual trust.

Similarly, the question whether or not all pending cases should be withdrawn before the decree of divorce is passed, will depend on your terms of agreement and mutual trust. It is not a question of law. In any case, in your matter, you have filed only one case (divorce petition) which has already been converted into mutual consent petition for divorce (as you have mentioned), which means this needs no withdrawal; other two cases are filed by your opposite party and if they are withdrawn before the decree of divorce is passed, you’ll not lose anything and will rather benefit.

     

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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 is no patent which is valid worldwide. Protection of patent is available within a territory where it is applicable. Accordingly, if you obtain an Indian patent, it is effective only within the territory of India. In this regard, Section 48 of the (Indian) Patents Act, 1970, is relevant and is reproduced below:

“48. Rights of patentees.—Subject to the other provisions contained in this Act and the conditions specified in Section 47, a patent granted under this Act shall confer upon the patentee—

(a) where the subject-matter of the patent is a product, the exclusive right to prevent third parties, who do not have his consent, from the act of making, using, offering for sale, selling or importing for those purposes that product in India;

(b) where the subject-matter of the patent is a process, the exclusive right to prevent third parties, who do not have his consent, from the act of using that process, and from the act of using, offering for sale, selling or importing for those purposes the product obtained directly by that process in India.”

Therefore, the exclusive right in respect of a patent is given “in India”. Accordingly, your Indian patent will be valid in India alone and not in other countries.

That said, however, filing an application for patent in India will enable you to file a corresponding application for the same invention in the Convention countries, up to a period of 12 months from the filing date in India. In view of the above, separate patents should be obtained in each country where you require protection of your invention / product in those countries.

Moreover, it is possible for you to file an international application called the “Patent Cooperation Treaty” or PCT application in India in the Patent Offices located at Kolkata, Chennai, Mumbai and Delhi.  All these Patent Offices act as Receiving Office for the International application.

     

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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]

Unlike the previous Companies Act, 1956, the new Companies Act, 2013 contains a specific provision for “Resignation of director” in Section 168 of the new Act. This section is reproduced below:

“168. Resignation of director.—(1) A director may resign from his office by giving a notice in writing to the company and the Board shall on receipt of such notice take note of the same and the company shall intimate the Registrar in such manner, within such time and in such form as may be prescribed and shall also place the fact of such resignation in the report of directors laid in the immediately following general meeting by the company:

Provided that a director shall also forward a copy of his resignation along with detailed reasons for the resignation to the Registrar within thirty days of resignation in such manner as may be prescribed.

(2) The resignation of a director shall take effect from the date on which the notice is received by the company or the date, if any, specified by the director in the notice, whichever is later:

Provided that the director who has resigned shall be liable even after his resignation for the offences which occurred during his tenure.

(3) Where all the directors of a company resign from their offices, or vacate their offices under Section 167, the promoter or, in his absence, the Central Government shall appoint the required number of directors who shall hold office till the directors are appointed by the company in general meeting.”

It is pertinent to point out that Section 168 of the new Companies Act, 2013, has been brought into force w.e.f. 1 April 2014 [vide Notification No. S.O. 902(E), dated 26-3-2014]. So, this section is applicable already.

It is clearly seen from this section that a director of a company may resign from his office by giving a notice in writing to the company. It has been made binding on the Board of the company to take note of such notice of resignation, and further, it is binding on the company to intimate the Registrar about such resignation. Such intimation to the Registrar has to be given in such manner, within such time and in such form as may be prescribed under rules. In fact, the director who is resigning, is also required to forward a copy of his resignation along with detailed reasons for the resignation to the Registrar within 30 days of resignation in such manner as may be prescribed by rules.

Moreover, it is also laid down in the said section that the resignation of a director shall take effect from the date on which the notice (for resignation) is received by the company or any other date, if any specified by the director in the notice, whichever is later.

In view of the above, it appears that the resignation of a director, under the new Companies Act, is not subject to approval of the Board and it automatically comes into effect from the date mentioned above. However, a director who has resigned shall be liable, even after his resignation, for the offences which occurred during his tenure.

It is also noteworthy that a company may lay down certain additional / supplemental provisions relating to the resignation by a director in the Articles of Association of the company.

     

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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]

Under the new Companies Act, 2013, the quorum for the meetings of Board of Directors of a company is laid down in Section 174. This section has been brought in force w.e.f. 1 April 2014 [vide Notification No. S.O. 902(E), dated 26-3-2014].

As per sub-section (1) of this section, the quorum for a meeting of the Board of Directors of a company shall be one-third of its total strength or two directors, whichever is higher. It is also laid down that the participation of the directors by video conferencing or by other audio visual means shall also be counted for the purposes of quorum under this sub-section.

Further, it is clarified in the Explanation to this section that while computing the quorum:

(i) any fraction of a number shall be rounded off as one;

(ii) “total strength” shall not include directors whose places are vacant.

Section 174 of the Companies Act, 2013, is reproduced below in full:

“174. Quorum for meetings of Board.—(1) The quorum for a meeting of the Board of Directors of a company shall be one-third of its total strength or two directors, whichever is higher, and the participation of the directors by video conferencing or by other audio visual means shall also be counted for the purposes of quorum under this sub-section.

(2) The continuing directors may act notwithstanding any vacancy in the Board; but, if and so long as their number is reduced below the quorum fixed by the Act for a meeting of the Board, the continuing directors or director may act for the purpose of increasing the number of directors to that fixed for the quorum, or of summoning a general meeting of the company and for no other purpose.

(3) Where at any time the number of interested directors exceeds or is equal to two-thirds of the total strength of the Board of Directors, the number of directors who are not interested directors and present at the meeting, being not less than two, shall be the quorum during such time.

Explanation.—For the purposes of this sub-section, “interested director” means a director within the meaning of sub-section (2) of Section 184.

(4) Where a meeting of the Board could not be held for want of quorum, then, unless the articles of the company otherwise provide, the meeting shall automatically stand adjourned to the same day at the same time and place in the next week or if that day is a national holiday, till the next succeeding day, which is not a national holiday, at the same time and place.

Explanation.—For the purposes of this section,—

(i) any fraction of a number shall be rounded off as one;

(ii) “total strength” shall not include directors whose places are vacant.”

     

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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]

Case Diary is a privileged document under Section 172 of Cr.P.C. Sub-section (1) of this section requires that:

“Every police officer making an investigation under this Chapter shall day by day enter his proceedings in the investigation in a diary, setting forth the time at which the information reached him, the time at which he began and closed his investigation, the place or places visited by him, and a statement of the circumstances ascertained through his investigation.”

As per a recent amendment made to Section 172 Cr.P.C. in the year 2009, now it is required that:

“The statements of witnesses recorded during the course of investigation under Section 161 shall be inserted in the case diary.”

Under Section 172, any Criminal Court may send for the police diaries of a case under inquiry or trial in such Court, and may use such diaries, not as evidence in the case, but to aid it in such inquiry or trial.

However, this section further provides that neither the accused nor his agents shall be entitled to call for such diaries, nor shall he or they be entitled to see them merely because they are referred to by the Court; but, if they are used by the police officer who made them to refresh his memory, or if the Court uses them for the purpose of contradicting such police officer, the provisions of Section 161 or Section 145, as the case may be, of the Indian Evidence Act, 1872, shall apply.

Therefore, the accused does not have a right to see the case diaries unless the police officer uses them to refresh his memory under Section 159 of the Evidence Act or unless the Court uses them for the purpose of contradicting such police officer.

The defence counsel cannot (directly) compel or instruct the police officer to refer to and reply from a case diary, unless the police officer has himself used the case diary to refresh his memory or unless the Court uses them for the purpose of contradicting such police officer, as mentioned above.

However, the court may have the power to ask the police officer to refer to the case diary. Other than the general provisions, there is a special provision in Section 165 of the Evidence Act, the relevant extract of which is reproduced below:

“The Judge may, in order to discover or to obtain proper proof of relevant facts, ask any question he pleases, in any form, at any time, of any witness, or of the parties, about any fact relevant or irrelevant; and may order the production of any document or thing; and neither the parties nor their agents shall be entitled to make any objection to any such question or order, nor, without the leave of the Court, to cross-examine any witness upon any answer given in reply to any such question:”

Therefore, sometimes, a defence counsel may request the court to ask the police officer a question about the contents of the case diary, and if the court is convinced it may ask such question. But, the defence counsel cannot ask such question directly to the police officer unless the condition mentioned in Section 172 Cr.P.C. is satisfied.

In this regard, I may point out that what I have mentioned above finds support from the following observations of the Supreme Court in the case of Shamshul Kanwar v. State of U.P., (1995) 4 SCC 430:

“The accused person is not entitled to require a police officer to refresh his memory during his examination in court by referring to the diary. At the most the accused can on a reasonable basis seek the court to look into the diary and do the needful within the limits of Section 172 CrPC. However, the court is not bound to compel the police witness to look at the diary in order to refresh his memory nor the accused is entitled to insist that he should do so. If there is such a refusal what inference should be drawn depends on the facts and circumstances of each case.”

Therefore, it should be clear that the defence counsel cannot compel the police officer to refer to the case diary and answer the question. However, if the police officer himself refreshes his memory or if the court uses the said case diary (as mentioned in Section 172 Cr.P.C.), in that case the accused may get the right to cross-examine on the case diary. The full observations of the Supreme Court in the above case of Shamshul Kanwar v. State of U.P., (1995) 4 SCC 430, are relevant in this regard:

“This section firstly lays down that every police officer making an investigation should maintain a diary of his investigation. It is well-known that each State has its own police regulations or otherwise known as police standing orders and some of them provide as to the manner in which such diaries are to be maintained. These diaries are called case diaries or special diaries. The section itself indicates as to the nature of the entries that have to be made and what is intended to be recorded is what the police officer did, the places where he went and the places which he visited etc. and in general it should contain a statement of the circumstances ascertained through his investigation. Sub-section (2) is to the effect that a criminal court may send for the diaries and may use them not as evidence but only to aid in such inquiry or trial. The aid which the court can receive from the entries in such a diary usually is confined to utilising the information given therein as foundation for questions to be put to the witnesses particularly the police witnesses and the court may, if necessary, in its discretion use the entries to contradict the police officer who made them. Coming to their use by the accused, sub-section (3) clearly lays down that neither the accused nor his agents shall be entitled to call for such diaries nor he or they may be entitled to see them merely because they are referred to by the courts. But in case the police officer uses the entries to refresh his memory or if the court uses them for the purpose of contradicting such police officer then provisions of Section 161 or Section 145, as the case may be, of the Evidence Act would apply. Section 145 of the Evidence Act provides for cross-examination of a witness as to the previous statements made by him in writing or reduced into writing and if it is intended to contradict him by the writing, his attention must be called to those parts of it which are to be used for the purpose of contradiction. Section 161 deals with the adverse party’s rights as to the production, inspection and cross-examination when a document is used to refresh the memory of the witness. It can therefore be seen that the right of accused to cross-examine the police officer with reference to the entries in the general diary is very much limited in extent and even that limited scope arises only when the court uses the entries to contradict the police officer or when the police officer uses it for refreshing his memory and that again is subject to the limitations of Sections 145 and 161 of the Evidence Act and for that limited purpose only the accused in the discretion of the court may be permitted to peruse the particular entry and in case if the court does not use such entries for the purpose of contradicting the police officer or if the police officer does not use the same for refreshing his memory, then the question of accused getting any right to use the entries even to that limited extent does not arise. The accused person is not entitled to require a police officer to refresh his memory during his examination in court by referring to the diary. At the most the accused can on a reasonable basis seek the court to look into the diary and do the needful within the limits of Section 172 CrPC. However, the court is not bound to compel the police witness to look at the diary in order to refresh his memory nor the accused is entitled to insist that he should do so. If there is such a refusal what inference should be drawn depends on the facts and circumstances of each case. Section 172 does not deal with any recording of statements made by witnesses and what is intended to be recorded is what the police officer did namely the places where he went, the people he visited and what he saw etc. It is Section 161 CrPC which provides for recording of such statements. Assuming that there is failure to keep a diary as required by Section 172 CrPC, the same cannot have the effect of making the evidence of such police officer inadmissible and what inference should be drawn in such a situation depends upon the facts of each case. It is well-settled that the entries of the police diary are neither substantive nor corroborating evidence and they cannot be used by or against any other witness than the police officer and can only be used to the limited extent indicated above. The above-stated principles are reiterated in many decisions rendered by the courts.”

In this regard, the detailed discussion on this issue in the case of Manu Sharma v. State (NCT of Delhi), (2010) 6 SCC 1 may also be seen in which the Supreme Court concluded by observing that the right of the accused in relation to the police file and the general diary is a very limited one and is controlled by the provisions.

Thus, the legal position in this regard is quite clear.

     

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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 appears to be no such case with these details. Judgments of Bombay high court of date 29.01.2015 are available at the following link, you may please check: https://indiankanoon.org/search/?formInput=fromdate%3A%2029-01-2015%20todate%3A%2029-01-2015%20doctypes%3Alaws%2Cbombay%2Ctribunals%2Cothers%2C

Alternatively, you can also check Bombay high court website (http://bombayhighcourt.nic.in/) and then click Court Orders to search for the required order / judgment.     

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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 is generally an issue between you (as a distributor) and your retailers, subject to any agreement between you. There is no specific mention of it in Section 138 of the Negotiable Instruments Act.

Generally speaking, you can claim all genuine expenses from your opposite party when they are due to the fault of the opposite party. If you are sending a notice for filing a case under Section 138 for cheque dishonour, you can mention about such expenses incurred by you (i.e., cheque return charges collected by bank).
     

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

[Dr. Ashok Dhamija]

If a bailable warrant is not successful in securing the presence of the accused, the court will generally issue the NBW (non-bailable warrant). You can engage an advocate and apply for cancellation of the NBW by undertaking to remain present before the court on the dates fixed. Even if NBW is executed and you are arrested and brought before the court, you can apply for bail at that time. Depending on facts and circumstances of the case, you may get bail. Since it appears from your questions that you are not familiar with basic legal procedures, I’ll advise you to engage some local advocate at your place so that you get immediate proper legal advice and are not taken by surprise on even petty issues.     

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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]

Clause (b) of the Proviso to Section 138 requires as under:

“(b) the payee or the holder in due course of the cheque, as the case may be, 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”

Now, the notice of demand made and the same being sent by post are in the form of documentary evidence. The Evidence Act lays down how documentary evidence can be proved. Firstly, a document can be proved only by primary evidence (which means the production of the document itself), but in certain situations, it may be possible to produce secondary evidence also to prove a document (secondary evidence is of 5 types, including oral accounts).

Now, you say that the complainant has no postal proof of sending the notice. I think what you mean to say is that such postal proof is either destroyed or lost (if there is some other reason, please inform). In such a situation, firstly, you may try to approach the post office and try to get evidence from them, even if your own postal proof is lost. Now, presuming that the post office also does not have any records. Then, what to do? Well, such a situation is covered in Section 63(5) of the Evidence Act, which says that “oral accounts of the contents of a document given by some person who has himself seen it” is also secondary evidence, and in Section 65(c) of the said Act which says what type of secondary evidence can be given and how “when the original has been destroyed or lost”, and in such a case “any secondary evidence of the contents of the document is admissible”, which means that even “oral accounts of the contents of the document given by some person who has himself seen it” can be given in the form of secondary evidence.

Therefore, legally speaking, it should be permissible for the complainant to give evidence in the form of his own deposition in the court (in the form of his affidavit) by way of oral accounts of the postal proof. However, it may be a weak evidence and can be challenged in the cross-examination. How much value can be attached with such evidence will further depend on the facts and circumstances of the case and the way the court appreciates such evidence.
     

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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 is nothing to stop you from filing application for quashing if you feel that no prima facie case is made out on the facts mentioned in the FIR / complaint.     

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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 may not be possible to advise you without seeing the detailed papers.

However, let me add that you can first write to the society (if you have not done it already) about the factual situation and let them reply in writing instead of mere oral reply. You should try to find out whether the then Administrator acted fraudulently or it was a mere genuine mistake. Was the administrator acting in conspiracy with the seller?

Further, from the facts mentioned by you, it appears that the seller has misrepresented to you. He must have indemnified you for the defects in his title or for the misrepresentations. You may ask him to make good the losses due to such misrepresentations.

If the society bye-laws permit you to get the status of deemed member, then you may be entitled to the same. But, it depends what are the rights and liabilities of a deemed member. You may still be liable to pay the lawful society charges, as admissible under the bye-laws.

In case nothing works, you can of course, approach the appropriate forum / court for seeking the legal remedy, since it appears that you are a bona fide buyer for consideration. If you are forced to file a case, you’ll have to make society a party, and in addition, the then administrator may also be made party depending upon the detailed factual situation (i.e., replies received from society).

Generally speaking, if the administrator was acting in a bona fide manner, exercising his lawful powers on behalf of the society, the society may also be held responsible for his acts and at least you should not be made to suffer for somebody else’s fault. An outsider (i.e., a new buyer like you) may not always know about “indoor management” of the society and you can try to make use of the legal principles on the lines of the doctrine of indoor management.

Please consult some good lawyer at Mumbai who is well versed in society laws for proper guidance.     

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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]

Supreme Court verdict is about arrest without warrant by police. Warrant issued by the Magistrate is a different thing.

Secondly, there are two types of warrants, bailable and non-bailable warrants. Generally, bailable warrant is issued initially, which means that if you agree to bail, you can sign bail bond and will not be arrested in case of a bailable warrant and instead of that you will undertake to appear in court on the dates given.     

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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 a warrant case, the Magistrate has the power to directly issue warrant under Section 204(1)(b) of Cr.P.C. (please see below), and offence under Section 498-A of IPC is a warrant case:

“204. Issue of process.— (1) If in the opinion of a Magistrate taking cognizance of an offence there is sufficient ground for proceeding, and the case appears to be—
(a) a summons case, he shall issue his summons for the attendance of the accused, or
(b) a warrant case, he may issue a warrant, or, if he thinks fit, a summons, for causing the accused to be brought or to appear at a certain time before such Magistrate or (if he has no jurisdiction himself) some other Magistrate having jurisdiction.”

If you have evidence to support the charge of the judge being influenced, you can apply for transfer of case by giving proof.
     

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

[Dr. Ashok Dhamija]

The answer to your question is covered in Section 80-TTA of the Income Tax Act, 1961. As per this section, interest on the Savings account is exempted from Income Tax up to the limit of ₹ 10,000 (ten thousand). Up to this limit, the interest on Savings account is not included in the gross income of the assessee. However, interest beyond ₹ 10,000 on Savings account will be included in the gross income for the purposes of taxation. For example, if the interest earned on Savings account is ₹ 25,000, then ₹ 15,000 only will be added to the income after accounting for the above deduction.

The above exemption / deduction is allowed to an individual or HUF. It is not available to a firm, an association of persons or a body of individuals.

The savings account can be in any bank, co-operative bank or in post office.

However, the above exemption / deduction is not available in respect of interest earned on the fixed deposits or time deposits, i.e., the deposits repayable on expiry of fixed periods.
     

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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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