[Dr. Ashok Dhamija]

Yes, it should be possible to file caveat in the situation described by you.

If a notice is issued by the Supreme Court in the SLP, then you can argue on merits of the case in order to get it dismissed.

Merely because an SLP is filed, there is no automatic extension of the time period directed by the high court for maintaining the status quo. From the facts mentioned by you, it appears that the extension of this period will rather act against you, so I fail to understand why do you want to get this period extended?

     

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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 provisions in the Evidence Act, as per which if an original document is lost then it can also be proved by oral accounts of a person who has actually seen the original document, provided first the proof of the document having been lost is given in court. Your lawyer should be aware of these provisions in the Evidence Act or otherwise read the provisions in that Act as to how to prove a document by secondary evidence by way of oral accounts.     

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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 have to sign Vakalatnama in favour of the Advocate to enable him to conduct cross-examination on your behalf, if the case has so far been conducted by you in person.

Subsequently, if you want, you can discharge the Advocate from the case and start arguing the case yourself as in-person case.

But, you should transparently tell the advocate about this arrangement and should not keep him in dark.     

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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 appreciate that I have given a pro bono reply after spending considerable time on your query. If you ask a question, you should provide full information in your first question itself.

I stand by what I have stated in my previous reply. So, I don’t want to reiterate the same things. If you are not satisfied with that reply, you are free to hold your opinion. I am not here to give a “specific” reply desired by a querist. You may accept or reject my reply, as you wish. I can only offer what is my considered opinion subject to my limited knowledge.

At the same time, let me clarify your new doubt, if two (or more) doctors under the same roof treat their own patients separately and supply them their individual medicines, this scenario may well be covered under the exemption given to “registered medical practitioner”. However, if a “third” entity, namely the hospital, supplies the medicines then the situation may be different; this is what is apparent from the relevant rules.

Having read the specific Supreme Court decision now mentioned by you (not that I had not searched the Supreme Court decisions earlier), I do not want to offend you by saying that you have apparently misinterpreted the Supreme Court decision when you say that the high court decision is “set aside”. In fact, had that been the situation, your first question itself was redundant. Therefore, I don’t want to question you as to why did you quote the high court decision in the first place (and wanted opinion on that) if it had already been “set aside”.

And, by the way, thanks for telling me that I do not understand English language and that I need to study “a”, “an”, and “the” of English. I am genuinely thinking of joining English classes again as per your kind suggestion.

Sir, I do not want to say anything else since it is quite clear that you already have much more knowledge than me. I bow down before you. With limited knowledge and limited time at my disposal, I cannot match your talents. Thanks, indeed. And, my apologies for not coming up to your expectations due to my limited knowledge. This question is now closed for any further replies.     

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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]

Once the police station as well as the Magistrate have both rejected your complaint under Section 420 IPC, it implies that they do not find any offence of cheating committed in the transaction and that they consider it to be a civil matter arising out of dispute under the terms of the contract / agreement. So, in their view, it is not a question of deception being from beginning or from a later stage, on the other hand, they appear to be of the view that there is no cheating or deception at all.

On the face of it, it appears to be a civil matter and not a criminal matter. However, one may need to examine the relevant documents in detail to come to a final conclusion as to whether an offence of cheating is made out. You should consult some good local lawyer and show him all the relevant documents. If it appears that an offence of cheating is made out, you may have to challenge the order of the Magistrate before the higher courts. However, if it seen that there is no offence made out in the transaction, you should file a civil suit before the appropriate court to resolve your dispute. These appear to be the only possible remedies in 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]

Yes, there is no legal bar to you filing your counter FIR against your neighbour. If your complaint discloses a cognizable offence, the police will file the FIR.

Though there is a delay of 2 days, as you have mentioned, in filing of the FIR by you, and it may raise some doubt about the genuineness of your FIR, however, there is no legal bar for filing of FIR after two days. So, without any further delay, you should lodge your FIR with police.     

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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]

Though you did not give proper details of the Kerala High Court judgment mentioned by you (such as party names, or link), I could locate it. Broadly speaking, the High Court judgment appears to be correct and on the lines of what the Drug and Cosmetics Rules, 1945 lay down.

The expression “registered medical practitioner” is defined in Rule 2(ee) of the Drug and Cosmetics Rules as under:

“(ee) “Registered medical practitioner” means a person-

(i) holding a qualification granted by an authority specified or notified under section 3 of the Indian Medical Degrees Act, 1916 (7 of 1916), or specified in the Schedules to the Indian Medical Council Act, 1956 (102 of 1956); or

(ii) registered or eligible for registration in a medical register of a State meant for the registration of persons practising the modern scientific system of medicine 7 excluding the Homoeopathic system of medicine; or

(iii) registered in a medical register, other than a register for the registration of Homoeopathic practitioner, of a State, who although not falling within sub-clause (i) or sub-clause (ii) is declared by a general or special order made by the State Government in this behalf as a person practising the modern scientific system of medicine for the purposes of this Act; or

(iv) registered or eligible for registration in the register of dentists for a State under the Dentists Act, 1948 (16 of 1948); or

(v) who is engaged in the practice of veterinary medicine and who possesses qualifications approved by the State Government;”

It is quite clear from this definition itself that a registered medical practitioner (RMP) can refer ONLY to an individual. It cannot refer to an institution since an institution cannot have an educational qualification and cannot be registered under the Indian Medical Degrees Act or the Indian Medical Council Act, etc.

That RMP refers to an individual only and also that it does not refer to a hospital, becomes also clear from the fact that in Rule 65(5)(1)(b) of the said Rules, the expressions “hospital” and “registered medical practitioner” are used separately in the same sentence, implying that they refer to different things: “…In case of sale to an authority purchasing on behalf of Government, or to a hospital, medical, educational or research institution or to a Registered Medical Practitioner for the purpose of supply to his patients the name…”.

Therefore, the expression “registered medical practitioner” would imply a single person only, and a hospital consisting of several doctors would not be included within the meaning of that expression.

The expression “selling across the counter” has to be distinguished from the expression “to his own patient”. So, an RMP can supply drugs to his own patient, whom he is treating, or he can sell drugs “across the counter” which means he is just selling the drugs to any person even if he is not treating them. It is like selling medicines across a counter without having a doctor-patient relationship. Please do not try to confuse with words such as “selling on the same side of counter” since that would also mean selling “across the counter” if the RMP does not have doctor-patient relationship with him.

The expression “open shop” has also to be understood in the same manner. It is like selling the medicines on a “shop” which is “open” to all, irrespective of whether or not such persons are his patients.

Now, coming back to the Kerala High Court judgment, referred to be you, this judgment [A.N. Thomas (Dr.) v. Union of India, AIR 2000 Ker 325 : (2000) 1 KLJ 900 : (2000) 2 KLT 459] lays down that there is nothing wrong in a private hospital being asked to obtain licence for selling drugs and that there is no discrimination if no such licence is required either by a Government hospital or an RMP. This judgment is broadly speaking based on the specific language used in the Act and Rules on this subject [i.e., the Drug and Cosmetics Act, 1940, and the Drug and Cosmetics Rules, 1945]. There can be very limited grounds to challenge such judgment, and that is on the ground of discrimination only, but the chances of success of such challenge are not that good. This is because the legislative intent appears to be to differentiate between these categories. Article 14 of the Constitution (right to equality, which prohibits discrimination) permits reasonable classification, and while challenging the above differentiation you’ll have to show that this classification is unreasonable and arbitrary. You may consult some good lawyer on these issues with full details of the case, if you want to challenge it. But, please keep in mind, the chances of success are comparatively 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]

Since you have details of their income, you would be aware of their place of business or place / department of service if they are in service. You can get their address details from these places or from other relatives / friends.

For maintenance, you’ll have to obtain the order of the Magistrate, either under the Protection of Women from Domestic Violence Act or under Section 125 of the Criminal Procedure Code. The court may also order interim maintenance, during the pendency of your petition.

In case of allegations of physical torture, as you have said, you may have to file complaint with police under Section 498-A IPC and other appropriate sections depending on facts.

As regards the case filed against you by your husband, it appears that a private complaint might have been filed against you. It is better to wait for the summons from the court rather than appearing in the court yourself when the court has not yet considered proper to summon you so far. It is not necessary that the court would issue the process to you. If the court is not satisfied about the prima facie case in your husband’s complaint, it may even dismiss the case. If the court issues the process to you, then you may have to fight it on merits.

     

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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 difficult to answer a question like this, which depends wholly on facts of the case, in the absence of having seen the detailed facts of the case. What is the fraud? Is there any loss to the department? What role has been attributed to you? Whether it is negligence attributed to you or your active complicity in the fraud? Was it connected to your lack of expertise in the technical job or was it connected to some general failure to take care or some deliberate or intentional act? Did you protest or refuse to work in the technical job when it was offered to you? It will depend on so many facts, which only a person fully aware of the facts of the case can answer. It would be advisable to consult some local lawyer by showing the full details of the case to 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]

After filing of charge sheet, the next step would be that the court has to take cognizance of the case (which is generally a formality), followed by framing of charges by court, and trial in the case. You may read, for more information on this: What are different stages in procedure followed in criminal cases?

Long hearing dates are due to a huge pendency of cases in the courts.

     

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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]

Legally, there is no bar for the high court to reverse the conviction even if such conviction has been sustained in two lower courts. Whether the high court will actually reverse the conviction and acquit the accused, will depend on facts of the case and also how the high court exercises its discretion.

Firstly, please note that the drawer of the cheque gets 15 days’ time to make payment from the date of receipt of the notice. If he fails to do so within such time, then within one month thereof, the complaint under Section 138 of the N.I. Act can be filed for cheque bounce.

So, it boils down to (i) one month plus (ii) 15 days plus (iii) time taken from dispatch of notice to its receipt by the drawer of the cheque. All these 3 time periods have to be added, and it would be definitely more than 45 days in general.

In your case, you have mentioned that it has taken 50 days from the date of dispatch of notice. But, you have not mentioned how many days were taken from dispatch of notice to its receipt by the drawer of the cheque; if it was more than 5 days, then your case is within time limit.

Please also note that the court has the power to condone the delay in filing of complaint beyond the one month limit. Whether this power was exercised by trial court in your case would be known to you.

So, depending on all these aspects, the high court may have to decide the case. You’ll have to put forth all relevant arguments in your favour depending 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]

Usually, the guidelines that have been issued relating to misuse of Section 498-A IPC are applicable to related offences such as those under Section 406 IPC, offences under Dowry Prohibition Act, etc. For example, see the recent Supreme Court decision in Rajesh Sharma v. State of UP (decided on 27^th July 2017) wherein one of the directions of the Supreme Court was “Complaints under Section 498A and other connected offences may be investigated only by a designated Investigating Officer of the area”.

But, ultimately, it will depend on detailed facts of the case as to whether a related / connected offence is completely independent or is related to 498-A IPC offence. Let me point out, however, that it is rare to see offences under Section 377 IPC, Molestation (under Section 354 IPC) also being applied in an offence under Section 498-A IPC, as you have mentioned from your case.

Depending on facts of your case, you may apply for quashing of the FIR (qua you) or for discharge from the case. If you succeed in the same, the case ends in so far as you are concerned. Even if quashing of FIR or discharge does not work for you, you don’t have to leave your jobs in other countries, but you may have to attend the court hearing in India if summoned to do so. If you don’t attend court hearing in India despite court summons / warrants, then the police may have to resort to extradition / deportation. However, these are lengthy procedures success of which is not guaranteed.

     

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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]

Though your question is not specific and is vague, generally the time limit under Rule 3 of Order 37 (Summary Procedure) of CPC is 10 (ten) days. This Rule is reproduced below:

“3. Procedure for the appearance of defendant.— (1) In a suit to which this Order applies, the plaintiff shall, together with the summons under Rule 2, serve on the defendant a copy of the plaint and annexures thereto and the defendant may, at any time within ten days of such service, enter an appearance either in person or by pleader and, in either case, he shall file in Court an address for service of notices on him.

(2) Unless otherwise ordered, all summonses, notices and other judicial processes, required to be served on the defendant, shall be deemed to have been duly served on him if they are left at the address given by him for such service.

(3) On the day of entering the appearance, notice of such appearance shall be given by the defendant to the plaintiff’s pleader, or, if the plaintiff sues in person, to the plaintiff himself, either by notice delivered at or sent by a pre-paid letter directed to the address of the plaintiff’s pleader or of the plaintiff, as the case may be.

(4) If the defendant enters an appearance, the plaintiff shall thereafter serve on the defendant a summons for judgment in Form No. 4-A in Appendix B or such other Form as may be prescribed from time to time, returnable not less than ten days from the date of service supported by an affidavit verifying the cause of action and the amount claimed and stating that in his belief there is no defence to the suit.

(5) The defendant may, at any time within ten days from the service of such summons for judgment, by affidavit or otherwise disclosing such facts as may be deemed sufficient to entitle him to defend, apply on such summons for leave to defend such suit, and leave to defend may be granted to him unconditionally or upon such terms as may appear to the Court or Judge to be just:

Provided that leave to defend shall not be refused unless the Court is satisfied that the facts disclosed by the defendant do not indicate that he has a substantial defence to raise or that the defence intended to be put up by the defendant is frivolous or vexatious:

Provided further that, where a part of the amount claimed by the plaintiff is admitted by the defendant to be due from him, leave to defend the suit shall not be granted unless the amount so admitted to be due is deposited by the defendant in Court.

(6) At the hearing of such summons for judgment,—

(a) if the defendant has not applied for leave to defend, or if such application has been made and is refused, the plaintiff shall be entitled to judgment forthwith; or

(b) if the defendant is permitted to defend as to the whole or any part of the claim, the Court or Judge may direct him to give such security and within such time as may be fixed by the Court or Judge and that, on failure to give such security within the time specified by the Court or Judge or to carry out such other directions as may have been given by the Court or Judge, the plaintiff shall be entitled to judgment forthwith.

(7) The Court or Judge may, for sufficient cause shown by the defendant, excuse the delay of the defendant in entering an appearance or in applying for leave to defend the suit.”

     

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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]

That may amount to the offence of forgery, punishable under Section 467 IPC (punishable with maximum of life imprisonment) and other offences such as cheating / theft / misappropriation depending on full facts of the case. You should file a complaint with police.

     

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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]

Jurisdiction of Central Administrative Tribunal (CAT) is provided under Section 14 of the Administrative Tribunals Act, 1985. A person working under the Central Government can directly approach the CAT for getting justice in service related matters.

However, a Notification by the Central Government under Section 14(2) of the above Act is necessary to apply the jurisdiction of CAT to persons working under local or other authorities within the territory of India or under the control of the Government of India and to corporations or societies owned or controlled by Government (not being a local or other authority or corporation or society controlled or owned by a State Government).

Therefore, you’ll have to check whether such a notification has been issued in respect of your educational institution which is under the Ministry of Human Resources Development (MHRD) of the Government of India. You can check a list of such institutions which have been notified, at the website of CAT and this list is available at the following link: http://cgatnew.gov.in/writereaddata/Delhi/docs/Jurisdiction%20of%20CAT.pdf.

Try to find out whether your institution is listed in the above list.

 

     

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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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