[Dr. Ashok Dhamija]

Please note that once the FIR has been registered by police, it is required to investigate into the offence. However, in the following two situations, police may refuse to investigate and close the case:

• When information as to the commission of any offence is given against any person by name and the case is not of a serious nature.
• If it appears to the officer in charge of a police station that there is no sufficient ground for entering on an investigation, he shall not investigate the case.

Barring these two situations, the police will conduct investigation in the allegations made in the FIR. On completion of the investigation, police submits a final report under the provisions of Section 173 of the Criminal Procedure Code, which may be of two types:

• If there is sufficient prima facie evidence available to prosecute the accused persons, police may file a final report in the form of a charge sheet.
• If there is no prima facie evidence available to prosecute the accused persons or if the allegations in the FIR are found to be false or if no offence is made out on the facts of the case, then the police may file a final report in the form of a closure report.

So, under law, these are the possible ways in which the investigation may lead to closure of the case by police registered vide the FIR.

However, you as complainant, would get a chance to represent before the Magistrate against the closure of the 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 the case of M/s. Meters and Instruments Private Limited v. Kanchan Mehta, decided on 5^th October, 2017, the relevant observations of the Supreme Court are as under:

“In view of the above, we hold that where the cheque amount with interest and cost as assessed by the Court is paid by a specified date, the Court is entitled to close the proceedings in exercise of its powers under Section 143 of the Act read with Section 258 Cr.P.C.”

“In every complaint under Section 138 of the Act, it may be desirable that the complainant gives his bank account number and if possible e-mail ID of the accused. If e-mail ID is available with the Bank where the accused has an account, such Bank, on being required, should furnish such e-mail ID to the payee of the cheque. In every summons, issued to the accused, it may be indicated that if the accused deposits the specified amount, which should be assessed by the Court having regard to the cheque amount and interest/cost, by a specified date, the accused need not appear unless required and proceedings may be closed subject to any valid objection of the complainant. If the accused complies with such summons and informs the Court and the complainant by e-mail, the Court can ascertain the objection, if any, of the complainant and close the proceedings unless it becomes necessary to proceed with the case. In such a situation, the accused’s presence can be required, unless the presence is otherwise exempted subject to such conditions as may be considered appropriate. The accused, who wants to contest the case, must be required to disclose specific defence for such contest. It is open to the Court to ask specific questions to the accused at that stage. In case the trial is to proceed, it will be open to the Court to explore the possibility of settlement. It will also be open to the Court to consider the provisions of plea bargaining. Subject to this, the trial can be on day to day basis and endeavour must be to conclude it within six months. The guilty must be punished at the earliest as per law and the one who obeys the law need not be held up in proceedings for long unnecessarily.”

Therefore, what is required is that the court has to assess the interest and cost and to inform the accused to make the payment of these amounts along with the cheque amount by a specified date. And, if such payment is made by the accused, the court may close the case after considering valid objections of the complainant, if any. It is clear that if the complainant objects to this course of action, the court has the power either to close the case or continue with the trial.

If, in your case, if the court has not given any such direction on its own, you can file an application in terms of the above and request the court to take action 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]

Writing off of the maintenance charges may depend on the bye-laws of your society. Please check your bye-laws. In general, since many of the societies adopt the Model Bye-laws under the Maharashtra Co-operative Societies Act, 1960, the relevant provisions in the said model bye-laws are reproduced as under, which may be helpful to you (the actual bye-law numbers may be different in your bye-laws):

“150. Subject to the bye-law No. 151, the society may write off Society’s charges due from the members, the expenses incurred on recovery thereof and the accumulated losses, which are certified as irrecoverable by the Statutory Auditor, appointed under section 81 of the Act.

“151. The amounts mentioned in the bye-law No. 150 shall not be written off unless:

i) the meeting of the general body of the society has given due sanction for writing off the amounts;

ii) the approval of the financing agency to the writing off of the amounts, if the society is indebted to it.

iii) the approval of the Registering Authority is obtained.

Provided that, if the society is affiliated to the District Central Cooperative Bank or any other financing agency but is not indebted to it the permission of the Bank or the financing agency is not necessary, Provided further that, if the society is classified as Aor B at the last Audit, no such permission of the Bank or the financing agency or the Registering Authority is necessary, if there is sufficient balance in the bad debt fund, specially created for the purpose to cover the amount proposed to be written off.

 

     

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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]

Section 122 of the Motor Vehicles Act, 1988, lays down as under:

“122. Leaving vehicle in dangerous position.—No person in charge of a motor vehicle shall cause or allow the vehicle or any trailer to be abandoned or to remain at rest on any public place in such a position or in such a condition or in such circumstances as to cause or likely to cause danger, obstruction or undue inconvenience to other users of the public place or to the passengers.”

Violation of this provision is punishable under the said Act.

Further, Section 127 of the said Act empowers police to remove such vehicles which have been abandoned or left unattended on a public place where parking is prohibited or which are causing traffic hazard:

“127. Removal of motor vehicles abandoned or left unattended on a public place.—(1) Where any motor vehicle is abandoned or left unattended in a public place for ten hours or more or is parked in a place where parking is legally prohibited, its removal by a towing service or its immobilisations by any means including wheel clamping may be authorised by a police officer in uniform having jurisdiction.

(2) Where an abandoned, unattended, wrecked, burnt or partially dismantled vehicle is creating a traffic hazard because of its position in relation to the public place, or its physical appearance is causing the impediment to the traffic, its immediate removal from the public place by a towing service may be authorised by a police officer having jurisdiction.

(3) Where a vehicle is authorised to be removed under sub-section (1) or sub-section (2) by a police officer, the owner of the vehicle shall be responsible for all towing costs, besides any other penalty.”

In addition, various notifications, rules have been issued under Chapter 8 of the said Act which deals with “Control of Traffic”.

So, action can be taken by police under these and various other relevant provisions of law against vehicles that cause obstruction to traffic or that otherwise violate the laws, rules, notifications, etc. So, you may contact the concerned police officer of the traffic police in Delhi.

     

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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]

Giving false evidence in a judicial proceeding may be punishable under Section 193 of the Indian Penal Code (IPC) or relevant other section(s) depending on gravity of the offence.

You may file an application before the court (where such false evidence was given) to take action in terms of Section 340 Criminal Procedure Code.

Proof of false evidence would depend on the detailed facts of the case. Please contact some local lawyer by sharing the full details of the case with him.

     

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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]

One of the essential conditions for the offence under Section 138 of the Negotiable Instruments Act is that the cheque which is returned unpaid by bank must have been “for the discharge, in whole or in part, of any debt or other liability”.

Therefore, the answer to your question would depend on the detailed facts of your case. Whether the cheque was given to the bank for processing the application for home loan for the bank charges or process fee? Whether such bank charges were required to be paid in advance as a pre-condition? Whether the bank was entitled to claim these bank charges irrespective of whether the loan was sanctioned or not? Whether there was a clause of not returning such bank charges even if you withdrew the loan application? Whether the application had already been processed by bank, in whole or in part, entitling the bank to claim its bank charges? Or, whether the application was withdrawn by you at the very initial stage itself?

So, appreciate that it would ultimately depend on the question whether the condition that the cheque was given “for the discharge, in whole or in part, of any debt or other liability” is satisfied. If so, then the “stop payment” of such cheque may invite the offence under Section 138 of the said Act.

     

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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 the charge sheet filed by the police omits the names of some accused persons named in the FIR, and the Magistrate is of the opinion that there is no sufficient ground for proceeding against some of the persons mentioned in the FIR, the Magistrate must give notice to the informant and provide him an opportunity to be heard at the time of consideration of the report.

In this regard, see the observations of the Supreme Court in the case of Bhagwant Singh v. Commr. of Police, (1985) 2 SCC 537 : AIR 1985 SC 1285:

“…in a case where the Magistrate to whom a report is forwarded under sub-section (2)(i) of Section 173 decides not to take cognizance of the offence and to drop the proceeding or takes the view that there is no sufficient ground for proceeding against some of the persons mentioned in the first information report, the Magistrate must give notice to the informant and provide him an opportunity to be heard at the time of consideration of the report.” [Emphasis supplied]

So, you should be in a position to challenge the dropping of names of some accused persons in the FIR if the Magistrate also decides not to proceed against them.

Otherwise, you may also try to request the Magistrate to direct further investigation by police. In some extreme cases, where the investigation is grossly compromised, one can even consider approaching the high court to direct a fair and proper investigation, may be, by transferring the case to some other agency such as CID or some other police officer.

     

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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]

Firstly, please note that in so far as a signed statement of accused recorded by police is concerned, it is not admissible in evidence (except in so far as it is covered under Section 27 of the Evidence Act leading to discovery of a material fact). So, such statements cannot be produced before court, due to which you need not worry in respect of such statements.

As far as a confession statement recorded under Section 164 Cr.P.C. is concerned, though there is no specific format or procedure to retract such confession statement, the accused can immediately write to the competent court (or the higher court) mentioning that such confession was recorded under the threats given by the police and that it was not a voluntary statement and also that it is untrue. Secondly, at the time of the trial, the accused may disown such confession statement and state as mentioned above. In the face of such denial by the accused, it would ultimately be up to the trial court to believe or disbelieve such confession under Section 164 Cr.P.C. in the totality of the circumstances of the 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]

Firstly, please note that, as I have replied in detail to an earlier question (Can mother file domestic violence case against son and daughter in law?), it is possible under law for a mother-in-law to file case against her daughter-in-law under the provisions of the Protection of Women from Domestic Violence Act if the facts of the case support such a case. Therefore, technically, it is possible for your mother to file a case under the above Act against your sister-in-law.

Secondly, your mother can also file a case under the relevant provisions of the Indian Penal Code (IPC) for the beating / torture, as mentioned by you in your question. Depending on detailed facts of the case, if a cognizable offence is made out, you can file the complaint / FIR with the police station, otherwise a private complaint case can be filed with the Magistrate court.

     

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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 case of conviction, if the sentence awarded is more than 3 years, then the trial court does not have the power to grant bail. However, if the sentence awarded is up to 3 years only, then the trial court has the power to grant bail to the convicted accused under Section 389 of the Cr.P.C., pending appeal if he was earlier on bail.

If the trial court is not granting bail, then the accused may be taken in custody immediately at the time of passing of sentence order.

In case of acquittal, the newly inserted Section 437-A of the Criminal Procedure requires execution of bail bonds with sureties by the accused. The previous surety can also provide the surety bond again, but it may have to be given afresh after acquittal under the above legal provision.

Section 441 of the Cr.P.C. requires “sufficient sureties” to for bail bond of an accused. Sub-section (4) of this Section further provides that: “For the purpose of determining whether the sureties are fit or sufficient, the Court may accept affidavits in proof of the facts contained therein relating to the sufficiency or fitness of the sureties, or, if it considers necessary, may either hold an inquiry itself or cause an inquiry to be made by a Magistrate subordinate to the Court, as to such sufficiency or fitness.”

Generally, it is required that the surety should be in a position to ensure the attendance of the accused on bail on the required dates and also that the accused does not abscond, etc.

It is not necessary that the surety should always be from the same city or state. Even an outsider can be permitted to stand surety. But, the court has to take a decision in this regard regarding the sufficiency of the surety.

There is no restriction in law as to the number of accused persons for whom a person can stand sureties, but he should be a sufficient surety being in a position to ensure the attendance of the accused, etc. However, please note that Section 441-A of the Criminal Procedure that: “Every person standing surety to an accused person for his release on bail, shall make a declaration before the Court as to the number of persons to whom he has stood surety including the accused, giving therein all the relevant particulars.”

Therefore, if a person is already a surety for other persons, he has to make a declaration as above. It enables the court to decide whether he is a sufficient surety in the given circumstances.

Normally, a surety would need a solvency certificate or property documents, etc., for standing surety. You may make enquiries from the local court or the local advocates about the nature of documents that you have with the surety. Show the documents to them in advance.

     

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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]

Please note that “dowry” is defined in Section 2 of the Dowry Prohibition Act, 1961, and this definition talks of “giving”, etc., of any property, etc., and it does not require the ingredient of demand of any such property in the definition:

“2. Definition of “dowry”.—In this Act, “dowry” means any property or valuable security given or agreed to be given either directly or indirectly—

(a) by one party to a marriage to the other party to the marriage; or

(b) by the parents of either party to a marriage or by any other person, to either party to the marriage or to any other person,

at or before or any time after the marriage in connection with the marriage of the said parties, but does not include dower or mahr in the case of persons to whom the Muslim Personal Law (Shariat) applies.

Explanation I.— [***]

Explanation II.—The expression “valuable security”has the same meaning as in Section 30 of the Indian Penal Code (45 of 1860).”

Please also note that there is a specific offence for demanding dowry which is punishable under Section 4 of the said Act. But, there is a separate offence under Section 3 of the said Act for giving or taking dowry. The facts mentioned by you show that the FIR alleges offences under Section 3 as well as under Section 4 of the Dowry Prohibition Act in your case.

The offence under Section 3 can be made out even if there was no demand of dowry, provided of course if the ingredients of this offence are otherwise made out. Therefore, even if there was no demand of dowry, an offence under the Dowry Prohibition Act may be made out for taking dowry if other conditions mentioned in the Act are satisfied.

Coming to the other part of your question, you have mentioned that you have already got bail. If the police files charge sheet after investigation, you may have to fight the case on merits. It is not possible to go into detailed facts of an individual case on this forum since it is beyond the scope of this forum. Please consult some good lawyer of your local area by showing him all the relevant facts / documents and obtain his advice on facts of your 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]

What is your question? It is not 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]

From your question, it appears that you are referring to the first listing of the case before the court after its filing. Please note that fresh listing of cases in court differs from court to court. Each high court has its own rules and procedures for listing of cases. For example, in Delhi high court, generally a fresh criminal case is listed after 3 days or so, but in Bombay High Court fresh listing may sometimes take even months (unless it is mentioned for an early listing).

So, you may have to ask your local lawyer in the high court (you have not named the high court) on this issue. If necessary, you may ask your lawyer to mention the case before the court for an early listing.

     

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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 be pointed out that Section 2(m) of the Delhi Police Act, 1978, lays down as under:

“(m) “police officer” means any member of the Delhi police;”

Further, Section 2(d) of the said Act mandates that:

“(d) “constable” means a police officer of the lowest grade;”

Likewise, Section 5(a) of the said Act lays down that:

“the Delhi police shall consist of such number in the several ranks and have such organisation and such powers, functions and duties as the Administrator may, by general or special order, determine; and”

A combined reading of the above provisions in the Delhi Police makes it quite clear that a “police constable” in Delhi Police is a “police officer” for the purposes of the said Act, even if sometimes people may casually refer to him as a “policeman”.

     

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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]

Your case is covered under Section 4 of the Limitation Act, 1963, which is reproduced as under:

“4. Expiry of prescribed period when court is closed.—Where the prescribed period for any suit, appeal or application expires on a day when the court is closed, the suit, appeal or application may be instituted, preferred or made on the day when the court reopens.

Explanation.—A court shall be deemed to be closed on any day within the meaning of this section if during any part of its normal working hours it remains closed on that day.”

As per the Explanation to the above section, even if a court is closed on a day only for any part of its normal working hours, it may be considered as if the court was closed on that day, and in such a situation the appeal may be filed on the next working day when the court reopens.

In the case of Gopal Chandra Ghosh v. Renu Bala Majumdar, (1994) 2 SCC 258, the Supreme Court observed as under:

“…There was thus, if at all, delay of two days. This would even be not so, if notice is taken of the fact that 16th was a Sunday, which shows that 15th was a Saturday. If it would have been a half-working day, Explanation to Section 4 of the Limitation Act would have taken care of 15th as well, in which case there would have been no delay at all.”

In view of the above, the appeal filed by you on Monday, when the prescribed limitation period was expiring on Saturday which was a half-working day, may be considered within the limitation period.

     

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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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