Dr. Ashok Dhamija

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January 29, 2018 at 7:49 am in reply to: Validity of a WILL #3929

Dr. Ashok Dhamija

Advocate

Did your parents make a joint will? What were the terms in that will?

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

January 27, 2018 at 10:07 pm in reply to: Court fees and stamp duty for filing 138 case? #3922

Dr. Ashok Dhamija

Advocate

Court fee for filing a case varies from state to state. The Madhya Pradesh Court-fee rates are not available online from authentic sources. However, as far as I understand the court-fee for a cheque bounce case under Section 138 of the Negotiable Instruments Act in Madhya Pradesh are as under (please confirm it from some local court or local lawyer in Madhya Pradesh):

If the value of cheque is up to Rs. 1 lakh	Court-fee is 5% of the amount of the dishonoured cheque, subject to a minimum of Rs. 200.
If the value of cheque is more than Rs. 1 lakh but up to Rs. 5 lakh.	Court-fee is minimum of Rs. 5000 PLUS 4% of the cheque amount in excess of Rs. 1 lakh.
If the value of cheque is more than Rs. 5 lakh.	Court-fee is minimum of Rs. 21000 PLUS 3% of the cheque amount in excess of Rs. 5 lakh, BUT court-fee is subject to being a maximum of Rs. 1.50 lakh.

As mentioned above, please confirm it from the local court / lawyers in Madhya Pradesh, since court-fee rates keep changing and no information is available online from authentic sources.

January 27, 2018 at 10:00 am in reply to: Neighbour deflating car tyres even though it was parked near public park #3904

Dr. Ashok Dhamija

Advocate

Depending on detailed facts of the case, intentionally deflating types of a car belonging to another person, may amount to an offence of mischief within the meaning of Section 425 of the Indian Penal Code (IPC), which is punishable under Section 426 of IPC. Section 425 IPC is reproduced below for your information:

“425. Mischief.—Whoever, with intent to cause, or knowing that he is likely to cause, wrongful loss or damage to the public or to any person, causes the destruction of any property, or any such change in any property or in the situation thereof as destroys or diminishes its value or utility, or affects it injuriously, commits “mischief”.

Explanation 1.—It is not essential to the offence of mischief that the offender should intend to cause loss or damage to the owner of the property injured or destroyed. It is sufficient if he intends to cause, or knows that he is likely to cause, wrongful loss or damage to any person by injuring any property, whether it belongs to that person or not.

Explanation 2.—Mischief may be committed by an act affecting property belonging to the person who commits the act, or to that person and others jointly.

Illustrations

(a) A voluntarily burns a valuable security belonging to Z intending to cause wrongful loss to Z. A has committed mischief.

(b) A introduces water into an ice-house belonging to Z and thus causes the ice to melt, intending wrongful loss to Z. A has committed mischief.

(c) A voluntarily throws into a river a ring belonging to Z, with the intention of thereby causing wrongful loss to Z. A has committed mischief.

(d) A, knowing that his effects are about to be taken in execution in order to satisfy a debt due from him to Z, destroys those effects, with the intention of thereby preventing Z from obtaining satisfaction of the debt, and of thus causing damage to Z. A has committed mischief.

(e) A having insured a ship, voluntarily causes the same to be cast away, with the intention of causing damage to the underwriters. A has committed mischief.

(f) A causes a ship to be cast away, intending thereby to cause damage to Z who has lent money on bottomry on the ship. A has committed mischief.

(g) A, having joint property with Z in a horse, shoots the horse, intending thereby to cause wrongful loss to Z. A has committed mischief.

(h) A causes cattle to enter upon a field belonging to Z, intending to cause and knowing that he is likely to cause damage to Z’s crop. A has committed mischief.”

January 27, 2018 at 9:50 am in reply to: Magistrate not taking action on false evidence being given in trial #3903

Dr. Ashok Dhamija

Advocate

Instead of pointing out verbally about the false evidence, you should file a written / formal application about the production of false evidence (with whatever proof you have) with a prayer to take action in accordance with the provisions of Section 340 of the Criminal Procedure Code in respect of such false evidence. Once you make a formal application, the Magistrate may have to take a decision thereon instead of avoiding it.

If he rejects such application, you’ll the option of challenging such rejection in the higher courts.

January 27, 2018 at 9:45 am in reply to: Registration of rent agreement for 11 months for commercial property, if necessary #3902

Dr. Ashok Dhamija

Advocate

Under Section 17 of the Registration Act, 1908, it is compulsory to register leases of immovable property from year to year, or for any term exceeding one year, or reserving a yearly rent. Further, Section 18 of the said Act lays down that registration of “leases of immovable property for any term not exceeding one year, and leases exempted under Section 17” is optional, i.e., it is not mandatory.

Similarly, Section 107 of the Transfer of Property Act, 1882, lays down that, “A lease of immovable property from year to year, or for any term exceeding one year, or reserving a yearly rent, can be made only by a registered instrument”, and also that, “All other leases of immovable property may be made either by a registered instrument or by oral agreement accompanied by delivery of possession”.

In view of the above legal provisions, it should be clear that lease or rent agreement in respect of an immovable property for a period of 11 months is not mandatory but optional.

Therefore, such a rent agreement for 11 months, even if it is not registered, it would be legally valid.

January 27, 2018 at 9:30 am in reply to: Photocopy of document being used as evidence in a forgery case #3901

Dr. Ashok Dhamija

Advocate

Under Section 63 of the Evidence Act, a photocopy of a document is secondary evidence.

As per Section 64, a document is required to be proved by its primary evidence, which means the original document itself being produced in court. However, in certain situations, as laid down in Section 65 of the said Act, secondary evidence can be given. For example, where the original document is shown to be in possession of the person against whom it is to be proved, or where the original document is shown to have been destroyed or lost, etc., secondary evidence in the form of a photocopy may be given, subject to certain conditions. So, it all depends on facts of the case.

In your case, if the photocopy is to be given for the document which itself is alleged to have been forged, then the question would arise whether forgery can be proved by way of the photocopy of the original document. It is generally very difficult to prove forgery from a photocopy of the document which is alleged to have been forged.

January 27, 2018 at 9:20 am in reply to: Wife filing false dowry and domestic violence case after i filed for divorce #3900

Dr. Ashok Dhamija

Advocate

There is no standard formula to prove that any particular case is false. You will have to prove the cases as being false on the basis of the facts in those cases.

January 27, 2018 at 8:48 am in reply to: problem related to Will of my parents #3899

Dr. Ashok Dhamija

Advocate

Approximately 50 lakh offences are registered in India every year. In almost all of these cases, the parents and other relatives of the person who commits an offence, are not dragged by police as accused persons. If an offence is committed by an individual, the police would not drag his relatives and would not make them accused persons, unless they were actively involved in commission of the offence. The experience of such large number of cases registered every year does not support the fear of false implication of family members in an offence. So, you should not worry too much in this regard.

At the same time, if your family wants to dissociate from your brother, there is no harm if you give another notice in the press or obtain an affidavit from him, if you so wish for your satisfaction. As I mentioned above, ultimately, the police will not unnecessarily involve the family members of an accused person in the offence, unless they were actively involved in the commission of the offence.

January 26, 2018 at 5:58 pm in reply to: Police officer demanding bribe to close false case of molestation #3897

Dr. Ashok Dhamija

Advocate

File a complaint with the Anti-Corruption Bureau (ACB) or vigilance department of your state against the police officer demanding the bribe from you. If possible, record conversation with the police officer regarding demand of bribe before going to ACB. The ACB will lay a trap and catch him red-handed demanding and accepting the bribe from you. When you give a complaint to the ACB, usually they would try to help you in the case in which bribe was being demanded, to the extent it is legally possible to help you.

January 25, 2018 at 8:51 pm in reply to: Law of limitation as applicable in PC Act #3889

Dr. Ashok Dhamija

Advocate

There is NO limitation period for offences under the Prevention of Corruption Act, 1988, irrespective of the period taken for grant of sanction.

January 25, 2018 at 4:40 pm in reply to: Limitation period for filing the restoration petition #3887

Dr. Ashok Dhamija

Advocate

The time period of limitation for filing a restoration petition / application to restore a civil suit or appeal which has been dismissed for default of appearance or dismissed for want of prosecution is 30 days from the date of dismissal thereof.

January 25, 2018 at 4:18 pm in reply to: 372 CrPC Appeal in FIR Case #3884

Dr. Ashok Dhamija

Advocate

Your question appears to be vague. Section 372 of the Cr.P.C. that you have mentioned in the heading of the question, basically lays down a general provision saying that an appeal cannot be filed against any judgment or order of a Criminal Court except as provided for by the Criminal Procedure Code or by any other law for the time being in force. An amendment made to this Section in 2009 lays down that the victim of an offence, however, shall have a right to prefer an appeal against any order passed by the Court acquitting the accused (or convicting for a lesser offence or imposing inadequate compensation), and such appeal shall lie to the Court to which an appeal ordinarily lies against the order of conviction of such Court. This section is as under:

“372. No appeal to lie unless otherwise provided.— No appeal shall lie from any judgment or order of a Criminal Court except as provided for by this Code or by any other law for the time being in force:

Provided that the victim shall have a right to prefer an appeal against any order passed by the Court acquitting the accused or convicting for a lesser offence or imposing inadequate compensation, and such appeal shall lie to the Court to which an appeal ordinarily lies against the order of conviction of such Court.”

If your question is with regard to the right of the victim of an offence to file appeal under Section 372 of the Cr.P.C., then let me point out that this provision is applicable to a private complaint case as well as to a police case (i.e., a case based on FIR). Further, in such a situation, the appeal has to be filed in the court where normally such appeal lies. For example, if the acquittal order is passed by the Magistrate court, then the victim can file appeal in the Session Court. And, if the acquittal order is passed by the Session Court, then the victim can file the appeal in the high court.

Also see, in this regard, my reply to the question, Right of victim to file appeal against acquittal order by magistrate.

Coming to the question in the main body of your question, an appeal can be filed in the Session Court against an order passed by the Magistrate court.

For appeal in the FIR case, it would depend upon which court passed the order of conviction or acquittal. If the order was passed by the Magistrate court, then the appeal would lie in the Session Court. But, if the order was passed by the Session Court, then the appeal would lie in the High Court.

It is wrong to suggest that appeal in a (private) complaint case would always lie in the High Court. As above in the FIR case, it would depend on which court passed the order of conviction or acquittal. In a private complaint case also, if the order was passed by the Magistrate court, then the appeal would lie in the Session Court. But, if the order was passed by the Session Court, then the appeal would lie in the High Court.

I hope your question is answered in what is mentioned above. If you had some different question, then please clarify what exactly was your question.

January 25, 2018 at 4:02 pm in reply to: Refund of stamps not used for property registration #3883

Dr. Ashok Dhamija

Advocate

There are various provisions in the Indian Stamps Act, 1899, which allow refund of stamp duty under various circumstances. The main provision in this regard is Section 54 which empowers the Collector to repay the value of stamps by deducting 10% thereof, if the stamps are not needed:

“54. Allowance for stamps not required for use.—When any person is possessed of a stamp or stamps which have not been spoiled or rendered unfit or useless for the purpose intended, but for which he has no immediate use, the Collector shall repay to such person the value of such stamp or stamps in money, deducting ten naye paise for each rupee or portion of a rupee, upon such person delivering up the same to be cancelled, and proving to the Collector’s satisfaction—

(a) that such stamp or stamps were purchased by such person with a bona fide intention to use them; and

(b) that he has paid the full price thereof; and

Provided that, where the person is a licensed vendor of stamps, the Collector may, if he thinks fit, make the repayment of the sum actually paid by the vendor without any such deduction as aforesaid.”

So, it should be possible for you to get refund of the stamps purchased by you, if you do not require the same now, after deduction as per law.

January 25, 2018 at 3:55 pm in reply to: What is a Chapter Case initiated by police? #3882

Dr. Ashok Dhamija

Advocate

A proceeding under Chapter 8 of the Criminal Procedure Code for obtaining security / bond for keeping peace or good behaviour from a person is generally referred to as a Chapter Case.

In this Chapter, Section 106 (Security for keeping the peace on conviction), Section 107 (Security for keeping the peace in other cases), Section 108 (Security for good behaviour from persons disseminating seditious matters), Section 109 (Security for good behaviour from suspected persons), and Section 110 (Security for good behaviour from habitual offenders), contain provisions for obtaining such security / bond from the person concerned for keeping peace or for good behaviour for a period of one year or three years, as the case may be.

This is a preventive type of action and not a punitive action for any offence. No FIR is registered in respect of such proceedings.

January 25, 2018 at 8:18 am in reply to: Can Company Secretary be appointed as statutory / external auditor of a company? #3880

Dr. Ashok Dhamija

Advocate

The eligibility, qualifications and disqualifications of auditors of a company are laid down in Section 141 of the Companies Act, 2013. As per this, only a chartered accountant (CA) can be appointed as the statutory auditor of a company. It is pertinent to point out that under Section 2(17) of the Companies Act, a “chartered accountant” means a chartered accountant as defined in the Chartered Accountants Act, 1949 who holds a valid certificate of practice under that Act;

A firm may also be appointed (by its firm name) as auditor of a company if the majority of its partners practising in India are qualified for appointment as such auditor. However, if a firm is appointed as an auditor of a company, only the partners who are chartered accountants shall be authorised to act and sign on behalf of the firm.

Thus, it should be clear that a Company Secretary is not entitled to be the statutory or external auditor of a company under the provisions of the new Companies Act, 2013.

It is noteworthy that sub-section (3) of the Companies Act lays down disqualifications as to which persons are not qualified to be auditors of a company (this would apply even if they be chartered accountants).

Section 141 is reproduced below:

“141. Eligibility, qualifications and disqualifications of auditors.—(1) A person shall be eligible for appointment as an auditor of a company only if he is a chartered accountant:

Provided that a firm whereof majority of partners practising in India are qualified for appointment as aforesaid may be appointed by its firm name to be auditor of a company.

(2) Where a firm including a limited liability partnership is appointed as an auditor of a company, only the partners who are chartered accountants shall be authorised to act and sign on behalf of the firm.

(3) The following persons shall not be eligible for appointment as an auditor of a company, namely—

(a) a body corporate other than a limited liability partnership registered under the Limited Liability Partnership Act, 2008 (6 of 2009);

(b) an officer or employee of the company;

(d) a person who, or his relative or partner—

(i) is holding any security of or interest in the company or its subsidiary, or of its holding or associate company or a subsidiary of such holding company:

Provided that the relative may hold security or interest in the company of face value not exceeding one thousand rupees or such sum as may be prescribed;

(ii) is indebted to the company, or its subsidiary, or its holding or associate company or a subsidiary of such holding company, in excess of such amount as may be prescribed; or

(iii) has given a guarantee or provided any security in connection with the indebtedness of any third person to the company, or its subsidiary, or its holding or associate company or a subsidiary of such holding company, for such amount as may be prescribed;

(e) a person or a firm who, whether directly or indirectly, has business relationship with the company, or its subsidiary, or its holding or associate company or subsidiary of such holding company or associate company of such nature as may be prescribed;

(f) a person whose relative is a director or is in the employment of the company as a director or key managerial personnel;

(g) a person who is in full time employment elsewhere or a person or a partner of a firm holding appointment as its auditor, if such persons or partner is at the date of such appointment or reappointment holding appointment as auditor of more than twenty companies;

(h) a person who has been convicted by a court of an offence involving fraud and a period of ten years has not elapsed from the date of such conviction;

(i) any person whose subsidiary or associate company or any other form of entity, is engaged as on the date of appointment in consulting and specialised services as provided in Section 144.

(4) Where a person appointed as an auditor of a company incurs any of the disqualifications mentioned in sub-section (3) after his appointment, he shall vacate his office as such auditor and such vacation shall be deemed to be a casual vacancy in the office of the auditor.”

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