[Dr. Ashok Dhamija]

I have previously replied in detail to a similar question in respect of a major penalty, namely, Preliminary enquiry – whether necessary before major penalty charge sheet and can a junior officer conduct it?

The answer to that question is mostly applicable to your question also. So, please read that.

In fact, as I have mentioned in the aforesaid answer, a preliminary enquiry may not be necessary even where it is proposed to impose a major penalty. A minor penalty procedure is quite limited and brief, in comparison. Therefore, it is not mandatory for the disciplinary authority to first conduct or cause to be conducted a preliminary enquiry before imposing a minor penalty. It is as per the discretion of the authority, depending on facts of the case.

As I have mentioned in the above answer, a preliminary enquiry is different from the regular inquiry which is held after communicating to the delinquent officer the charge or the imputation of misconduct or misbehaviour. So, there should not be any confusion in this regard.

     

---

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 16 of the Civil Procedure Code (CPC), a suit with regard to the immovable properties which are situated in Bihar, cannot be filed in Kolkata. Such a suit will have to be filed in the appropriate court in Bihar itself, where the properties are situated.

Secondly, since the matter relates to dispute with regard to parental properties and the dispute appears to be with your siblings, it will not be a writ petition, but it will have to be an appropriate civil suit in accordance with the provision of the CPC.

     

---

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 already 9 years have passed since the marriage took place and both spouses have no issue with the marriage and are happy with it.

Let me first mention that as per Section 3 of the Prohibition of Child Marriage Act, 2006, a child marriage shall be voidable at the option of the contracting party (and, it is not a void marriage) who was a child at the time of the marriage; but, a petition under this section may be filed at any time but before the child filing the petition completes 2 years of attaining majority. So, if the wife attained majority more than 2 years before today (which perhaps appears to be the case), then no such petition can be filed now to declare the marriage void. [Note: Here, I am presuming that there was no element of force, trafficking, etc., used in this marriage, as described in Section 12 of the Act.]

Secondly, if the male person was above 18 years of age at the time of the marriage, and he contracts a child marriage, then he may be punishable under Section 9 of the above Act, with rigorous imprisonment which may extend to two years or with fine which may extend to one lakh rupees or with both. Though this offence is cognizable and non-bailable, in the absence of any contrary provision in the Act, it appears that the limitation to take cognizance of this offence was only 2 years as per Cr.P.C. provisions. In your case, a period of 9 years has lapsed, so chances of cognizance being taken of such offence against you appear to be not there.

Thirdly, whether the Government department can take any disciplinary action against you for the child marriage, would depend on the specific rules that are applicable in the department where you are working. You may have to check the relevant rules of your department.

As far as the Central Government employees are concerned, Rule 3B of the Central Civil Services(Conduct) Rules, 1964, inter alia, states that every Government servant shall, at all times, act in accordance with the Government's policies regarding age of marriage.

Now, if the (child) marriage took place after joining such government service, then the above rule may be attracted and a disciplinary action may perhaps be initiated at the discretion of the authority concerned. However, if the (child) marriage had taken place before joining the government service, then the application of the above rule may be doubtful and will depend on what view can be taken for its implementation. I tried checking but could not find any clarification issued by the Government on this rule, unlike many other rules on which the Government has issued various clarifications / instructions.

So, the answer to your question depends on these aspects.

     

---

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 legal provision, relevant to answer your question is given in Section 9 of the Juvenile Justice (Care and Protection of Children) Act, 2015, which is as under:

“9. Procedure to be followed by a Magistrate who has not been empowered under this Act.—(1) When a Magistrate, not empowered to exercise the powers of the Board under this Act is of the opinion that the person alleged to have committed the offence and brought before him is a child, he shall, without any delay, record such opinion and forward the child immediately along with the record of such proceedings to the Board having jurisdiction.

(2) In case a person alleged to have committed an offence claims before a court other than a Board, that the person is a child or was a child on the date of commission of the offence, or if the court itself is of the opinion that the person was a child on the date of commission of the offence, the said court shall make an inquiry, take such evidence as may be necessary (but not an affidavit) to determine the age of such person, and shall record a finding on the matter, stating the age of the person as nearly as may be:

Provided that such a claim may be raised before any court and it shall be recognised at any stage, even after final disposal of the case, and such a claim shall be determined in accordance with the provisions contained in this Act and the rules made thereunder even if the person has ceased to be a child on or before the date of commencement of this Act.

(3) If the court finds that a person has committed an offence and was a child on the date of commission of such offence, it shall forward the child to the Board for passing appropriate orders and the sentence, if any, passed by the court shall be deemed to have no effect.

(4) In case a person under this section is required to be kept in protective custody, while the person's claim of being a child is being inquired into, such person may be placed, in the intervening period in a place of safety.”

Thus, it is quite clear that in a case where a person alleged to have committed an offence claims before a court (where he appears) that he is a child or was a child on the date of commission of the offence, or if the court itself is of the opinion that the person was a child on the date of commission of the offence, the said court after making inquiry about his age, etc., is required to send the child before the Juvenile Justice Board for passing appropriate orders and the sentence, if any.

A juvenile can file an application before the Magistrate, before whom he is produced, to claim that he was a juvenile at the time when the offence was committed. This application may be named differently in different states. Generally, it is called a Criminal Miscellaneous Application. But, the name of application (or its form) does not matter. The purpose of the application is to claim that the accused is / was a juvenile at the time of the offence and that he needs to be sent before the Juvenile Justice Board for further action under the Juvenile Justice (Care and Protection of Children) Act, 2015.

In fact, I am of the opinion even if the accused makes an oral / verbal claim before the Magistrate to the effect that he was juvenile at the time of the offence, the Magistrate is bound to record the same in court proceedings and act as above to ascertain his age and send him to the Juvenile Justice Board for further action if he is considered to be a juvenile at the time of commission of the offence.

     

---

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 read this answer given to a similar question in the past: Can I sell my undivided share in a property without consent of co-owner?

It appears that this answer covers your question. Please go through it.

     

---

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]

Let me first point out that Section 33 of the Stamp Act, 1899, mandates a court to impound a document if it is not duly stamped, when it is produced before the court or comes before the court. However, the Proviso to sub-section (2) lays down an exception to that:

“nothing herein contained shall be deemed to require any Magistrate or Judge of a Criminal Court to examine or impound, if he does not think fit so to do, any instrument coming before him in the course of any proceeding other than a proceeding under Chapter XII or Chapter XXXVI of the Code of Criminal Procedure, 1898 (5 of 1898);”

Therefore, as far as a criminal court is concerned, it is not binding on it to examine and impound a document if it is not duly stamped when such document is produced before it. It is a discretion given to the criminal court. Generally speaking, a criminal court may not impound such document.

Likewise, there is a similar exception for a criminal court in Section 35 of the Act which says that a document that is not duly stamped will be inadmissible in evidence, by laying down that:

“nothing herein contained shall prevent the admission of any instrument in evidence in any proceeding in a Criminal Court, other than a proceeding under Chapter XII or Chapter XXXVI of the Code of Criminal Procedure, 1898 (5 of 1898);”

In view of these provisions, a discretion has been given to a criminal court in the matter of instruments / documents which are not duly stamped. It is not binding on the criminal court to impound such document. This legal position is different from that prevailing before a civil court. My personal feeling is that such document may not generally be impounded by the criminal court.

     

---

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

[Dr. Ashok Dhamija]

It is not clear from your question whether provisional pension / gratuity was sanctioned to the Government officer concerned or it was withheld partly or fully. Also, it is not clear whether the Government officer belongs to the Central Government or a State Government, because the actual rules may sometimes be slightly different (though, generally, such rules are similar).

So, let me take the example of an officer who was working under the Central Government and was subject to the Central Civil Services (Pension) Rules. For officers under other Governments too, the rules will generally be similar.

Rule 8 of the CCS (Pension) Rules lays down that “Future good conduct shall be an implied condition of every grant of pension and its continuance under these rules”. This Rule also states that:

“The appointing authority may, by order in writing, withhold or withdraw a pension or a part thereof, whether permanently or for a specified period, if the pensioner is convicted of a serious crime or is found guilty of grave misconduct.”

Therefore, if a pensioner is convicted in a serious crime, even after his retirement, his pension can be withheld or withdrawn, either fully or in part, either permanently or for a specified period.

I may point out that in Rule 3(1)(o) of the said Rules, it is defined that:

“`Pension' includes gratuity except when the term pension is used in contradistinction to gratuity, but does not include dearness relief”.

Therefore, a combined reading of these Rules shows that even gratuity of the pensioner may perhaps be withheld in case of conviction of the pensioner in a serious crime.

My understanding is that a corruption case may be considered as a serious crime, for the purposes of the above Rule.

It is also noteworthy that vide G.I., M.H.A., O.M. No. 50/2/59-Ests. (A), dated the 7th October, 1959, directions have been issued to the effect that since future good conduct is an implied condition of the grant of every pension and Government has the right to withhold or withdraw a pension or any part of it if the pensioner is convicted of a serious crime or found guilty of grave misconduct, it is, therefore, necessary to ensure that cases where pensioners are convicted by a Court of any crime are also brought to the notice of Government.

Rule 9 of the said CCS (Pension) Rules further provides that:

“The President reserves to himself the right of withholding a pension or gratuity, or both, either in full or in part, or withdrawing a pension in full or in part, whether permanently or for a specified period, and of ordering recovery from a pension or gratuity of the whole or part of any pecuniary loss caused to the Government, if, in any departmental or judicial proceedings, the pensioner is found guilty of grave misconduct or negligence during the period of service, including service rendered upon re-employment after retirement.”

In view of these Rules, in my opinion, it may be possible for Government to withdraw or withhold pension / gratuity, either fully or in part, in the event of conviction of the pensioner.

If such pension / gratuity was not sanctioned at the time of the retirement, or if a provisional pension was sanctioned at that time, then the Government may issue an appropriate order of modified pension/gratuity or a fresh sanction, as the case may be, after the conviction, depending on whether the Government decides to withhold / withdraw pension/gratuity in full or in part. So, if the Government decides to withdraw only a part of the pension after conviction, and if pension was not sanctioned earlier at the time of the retirement, then the Government may sanction the part pension even after conviction.

But, generally speaking, in case of conviction in a corruption case, chances are more of the pension being withdrawn fully. Of course, the decision is with the concerned authority.

     

---

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 Director is himself involved in the offence in his personal capacity (and not merely because he is Director of company which is involved), then it is not mandatory that the company must also be arraigned as an accused in the case. It will depend on facts of the case in that situation, i.e., if the company is also involved then it may be named as accused.

But, if the Director of the company is being named as an accused, ONLY BECAUSE the offence has been committed by the company itself under the Unlawful Activities (Prevention) Act, 1967 (UAP Act), and he is being named as accused by virtue of Section 22-A of the Act, in that case it is mandatory to also name the company as an accused. However, there may be one exception to this rule, i.e., where there is some legal impediment and the doctrine of lex non cogit ad impossibilia gets attracted, i.e., if for some legal impediment, company cannot be proceeded against, for example, without obtaining sanction of a court of law or other authority, then the trial as against the other accused may be proceeded against if ingredients of the offence are otherwise fulfilled. In such an event, it would not be a case where company had not been made an accused but would be one where company cannot be proceeded against due to existence of a legal bar. Thus, there is a distinction between cases where a company had not been made an accused and the one where despite making it an accused, it cannot be proceeded against because of a legal bar.

To answer your second question, let me first refer to Section 22-A of the UAP Act:

“22-A. Offences by companies.—(1) Where an offence under this Act has been committed by a company, every person (including promoters of the company) who, at the time the offence was committed, was in charge of, and was responsible to, the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly:

Provided that nothing contained in this sub-section shall render any such person (including promoters) liable to any punishment provided in this Act, if he proves that the offence was committed without his knowledge or that he had exercised reasonable care to prevent the commission of such offence.

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

Explanation.—For the purpose of this section,—

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

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

Thus, it can be seen that there are two categories of other persons who can be prosecuted along with the company for the offence committed by a company.

The first category covers the person, “was in charge of, and was responsible to, the company for the conduct of the business of the company”. For this clause, it may be necessary to state that such person was responsible for conduct of the business of the company.

The second category [under sub-section (2)] covers a person for whom it is proved that “the offence has been committed with the consent or connivance of, or is attributable to, any neglect on the part of, any promoter, director, manager, secretary or other officer of the company”.

So, the answer to your second question will depend on the detailed facts and circumstances of your case. You may consult some local lawyer of your area and show him the documents to get an accurate opinion on this issue, because it may not be possible to answer the question in the absence of having gone through detailed facts/documents of the case.

     

---

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 presumption under Section 139 of the Negotiable Instruments Act will be raised by court as applicable. However, please note that this presumption is only for the issue that the cheque duly drawn was for the discharge, in whole or in part, of any debt or other liability.

However, there are other ingredients too for proving the case under Section 138 of the Act. Moreover, the aforesaid presumption raised under Section 139 can be rebutted by the accused, and one of the ways to do so is to deny the signatures on the cheque. Therefore, the issue whether the signatures on the cheque are those of the accused, may still be relevant despite presumption under Section 139, if the accused denies his signatures on the cheque.

I have already replied in detail to the last issue raised by you, i.e., whether the defence can ask for forensic examination or the judge will look at evidence available on the issue.     

---

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]

Obtaining forensic science or handwriting expert’s opinion is not the only method to prove that the impugned / disputed signatures are those of a particular person. Of course, this is one of the methods.

There are other methods also to prove signatures of a person. Three such other methods are laid down in Section 47 of the Evidence Act, which is as under:

“47. Opinion as to handwriting, when relevant.—When the Court has to form an opinion as to the person by whom any document was written or signed, the opinion of any person acquainted with the handwriting of the person by whom it is supposed to be written or signed that it was or was not written or signed by that person, is a relevant fact.

Explanation.—A person is said to be acquainted with the handwriting of another person when he has seen that person write, or when he has received documents purporting to be written by that person in answer to documents written by himself or under his authority and addressed to that person, or when, in the ordinary course of business, documents purporting to be written by that person have been habitually submitted to him.

Illustration

The question is, whether a given letter is in the handwriting of A, a merchant in London.

B is a merchant in Calcutta, who has written letters addressed to A and received letters purporting to be written by him. C is B's clerk, whose duty it was to examine and file B's correspondence. D is B's broker, to whom B habitually submitted the letters purporting to be written by A for the purpose of advising with him thereon.

The opinions of B, C and D on the question whether the letter is in the handwriting of A are relevant, though neither B, C nor D ever saw A write.”

So, this section makes it clear – the opinion / evidence of any person acquainted with the handwriting of the drawer of the cheque who has signed the cheque, can also be given in court. And, a person can be acquainted with the handwriting / signature of another person in one of the THREE ways mentioned in the Explanation in this section, as can be seen from the above.

In addition to these methods, there is yet another method by which the signatures of a person can be proved. This is laid down in Section 73 of the Evidence Act, which empowers the court itself to compare the impugned / disputed signatures with some other admitted or proved signatures of the same person (which are generally called specimen signatures and the court also has the power to ask such person to give his specimen signatures when he is present in court):

“73. Comparison of signature, writing or seal with others admitted or proved.—In order to ascertain whether a signature, writing, or seal is that of the person by whom it purports to have been written or made, any signature, writing or seal admitted or proved to the satisfaction of the Court to have been written or made by that person may be compared with the one which is to be proved, although that signature, writing, or seal has not been produced or proved for any other purpose.

The Court may direct any person present in Court to write any words or figures for the purpose of enabling the Court to compare the words or figures so written with any words or figures alleged to have been written by such person.

This section applies also, with any necessary modifications, to finger-impressions.”

To give an example, in the case of L.C. Goyal v. Suresh Joshi, (1999) 3 SCC 376, the Supreme Court itself examined and compared the admitted signature of the appellant with his admitted signature and found striking similarity between the admitted signature and that of the disputed one. In these circumstances, the Supreme Court held that there was no need for an opinion of a handwriting expert.

On the other hand, in another case, in Kalyani Baskar v. M.S. Sampoornam, (2007) 2 SCC 258, the appellant / accused had made written application for sending the cheque in question for the opinion of the handwriting expert (on the ground that the signatures on the cheque were not hers) after the respondent had closed her evidence. In that case, the Supreme Court held that the Magistrate should have granted such a request unless he thought that the object of the appellant was vexation or delaying the criminal proceedings.

So, it all depends on the facts and circumstances of each case. As I mentioned above, there are various methods of proving the signatures of a person on a document (including on the cheque) and one of the methods is to obtain expert’s opinion by sending the cheque for forensic examination. But, it is not a hard and fast rule. It all depends on the facts and circumstances of the case and if the court is satisfied about the genuineness or otherwise of the signatures by way of another method, then it is not mandatory for it to send for forensic examination. But, if there is a doubt (whether after or before the use of other methods of proving it) in the mind of the court, it can send it for forensic examination.

     

---

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]

Providing details of all general Do’s and Don’ts in cross-examination is beyond the scope of this Forum, on which basically specific questions of law concerning a particular user are replied to. You may perhaps get plenty of resources if you search it on Internet.

However, let me answer your specific questions.

Firstly, please appreciate that in Section 146 of the Evidence Act, it is clearly laid down that during cross-examination of a witness, his veracity may be tested and his credit may be shaken by injuring his character:

“146. Questions lawful in cross-examination.—When a witness is cross-examined, he may, in addition to the questions hereinbefore referred to, be asked any questions which tend—

(1) to test his veracity,

(2) to discover who he is and what is his position in life, or

(3) to shake his credit, by injuring his character, although the answer to such questions might tend directly or indirectly to criminate him, or might expose or tend directly or indirectly to expose him to a penalty or forfeiture:

Provided that in a prosecution for an offence under Section 376, Section 376-A, Section 376-AB, Section 376-B, Section 376-C, Section 376-D, Section 376-DA, Section 376-DB or Section 376-E of the Indian Penal Code (45 of 1860) or for attempt to commit any such offence, where the question of consent is an issue, it shall not be permissible to adduce evidence or to put questions in the cross-examination of the victim as to the general immoral character, or previous sexual experience, of such victim with any person for proving such consent or the quality of consent.”

So, yes, if a witness is making a false statement about his education, you can discredit him in cross-examination by showing that he is lying about it. This can be done in both ways mentioned by you, i.e., by bringing in evidence a new document in evidence during cross-examination to show that he stated falsely, or to use an evidence already existing before the court to discredit him (you can refer to that document, already on record, and question that witness).

It is always advisable to discredit the witness during the cross-examination itself by relevant evidence. He should be asked about such evidence which can shake his credibility.

Of course, you may also have to highlight this issue during the final arguments to show to the court that such witness is not reliable.

     

---

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 procedure to deal with a complaint filed under the Consumer Protection Act, 1986 (recently, a new Consumer Protection Act has been passed in 2019) is given mainly under Section 13 of the said Act. So, the procedure to be followed in a consumer case will mainly be as laid down in this section, and also under the relevant rules made under this Act.

In the case of Malay Kumar Ganguly v. Sukumar Mukherjee, (2009) 9 SCC 221, the Supreme Court has clearly held that:

“Apart from the procedures laid down in Sections 12 and 13 as also the Rules made under the Act [Consumer Protection Act], the Commission is not bound by any other prescribed procedure. The provisions of the Evidence Act are not applicable. The Commission is merely to comply with the principles of natural justice, save and except the ones laid down under sub-section (4) of Section 13 of the 1986 Act. The proceedings before the National Commission are although judicial proceedings, but at the same time it is not a civil court within the meaning of the provisions of the Code of Civil Procedure. It may have all the trappings of the civil court but yet it cannot be called a civil court.”

Thus, though a consumer court has been given certain powers of a civil court under Section 13(4) of the Act, and proceedings before it are judicial proceedings, yet the provisions of the Evidence Act are not applicable to a consumer case and only the principles of natural justice, save and except the ones laid down under sub-section (4) of Section 13 of the 1986 Act, have to be complied with.

Section 13(4) of the Consumer Protection Act is as under:

“(4) For the purposes of this section, the District Forum shall have the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit in respect of the following matters, namely:—

(i) the summoning and enforcing the attendance of any defendant or witness and examining the witness on oath;

(ii) the discovery and production of any document or other material object producible as evidence;

(iii) the reception of evidence on affidavits;

(iv) the requisitioning of the report of the concerned analysis or test from the appropriate laboratory or from any other relevant source;

(v) issuing of any commission for the examination of any witness; and

(vi) any other matter which may be prescribed.”

The consumer courts have been set up with a speedy and simple mechanism to provide for redressal of consumer disputes in simple and expeditious manner. In view of this object, simple rules have been laid down for the procedure to be followed by the consumer courts.

In fact, in the case of V. Krishan Rao v. Nikhil Super Speciality Hospital, (2010) 5 SCC 513, the Supreme Court observed that in complicated civil cases requiring expert evidence, parties are also free to approach civil court instead of Consumer Forum.

In the case of Pannalal v. Bank of India, (1992) 1 CPR 34 (NC), the NCDRC has also held that where the complainant's case involves a determination of complex questions of law and fact which cannot be satisfactorily determined by the Consumer Forum in the time frame provided under the Act it would be better for the complainant to seek redress of his grievances in a civil court.

Likewise, in Industrial Products, Karnal v. Punjab National Bank, (1992) 1 CPR 70 (NC) also, it was observed that the Consumer Protection Act does not contemplate the determination of complicated issues of fact involving taking of elaborate oral evidence and adducing of voluminous documentary evidence and a detailed scrutiny and assessment of such evidence by the Consumer Redressal Forums.

So, if a consumer feels that he needs a detailed and complicated examination of evidence, he may go to the regular civil court instead of approaching the consumer court. But, in most cases, the procedure laid down in the Consumer Protection Act is sufficient for hearing the complaint and deciding it.

     

---

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

[Dr. Ashok Dhamija]

When you were told that the signatures are needed for loan but instead of that he took your signatures on a gift deed; and, for this purpose, your brother kept first few loan papers and in between he kept the gift deed, in such situation, this is a fraud, as defined in Section 17 of the Contract Act.

Though I have not seen the full documents and records, it appears that, in fact, it is a fraudulent misrepresentation as to the character of the document and not merely fraudulent misrepresentation as to the contents thereof, as differentiated in the Supreme Court judgment in the case of Ningawwa v. Byrappa, AIR 1968 SC 956.

If so, it would a void contract being of no legal effect. And, in any case, it would at least be a voidable contract.

So, I think you can file an appropriate suit in the court in respect of the gift deed which has been got signed due to fraudulent misrepresentation. You may consult some local lawyer in your area by showing the relevant documents and other details.

     

---

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]

Action for the offence under Section 138 of the Negotiable Instruments Act starts with the bouncing or dishonour of the cheque by the bank.

If the cheque is returned unpaid by the bank because of the insufficient funds, the process under Section 138 of NI Act starts.

The Payee has then to make a demand for the payment by giving a notice in writing, to the drawer of the cheque, within 30 days of the receipt of information by him from the bank regarding the return of the cheque as unpaid.

If the drawer of such cheque fails to make the payment within 15 days of the receipt of the said notice, then a criminal complaint under Section 138 can be filed in the competent court for cheque dishonour. Such complaint is required to be made within 1 month of the expiry of the period of 15 days within which the drawer was required to make the payment after receipt of above notice.

As laid down in Section 143 of the NI Act, after filing of the complaint, the trial of such case is to be conducted summarily, i.e., the provisions relating to summary trial of cases as laid down in Chapter 21 of the Cr.P.C. (mainly, sections 262 to 265) have to be followed.

Recently, in the case of Meters and Instruments (P) Ltd. v. Kachan Mehta, (2018) 1 SCC 560, the Supreme Court has held that the offence under Section 138 is primarily in nature of civil wrong and proceedings primarily compensatory in nature. Summary procedure should normally be followed except where exercise of power under second proviso to Section 143 considered necessary. Court has jurisdiction under Section 357(3) Cr.P.C. to award suitable compensation with default sentence under Section 64 IPC with further powers of recovery under Section 431 Cr.P.C. Court may close proceedings if accused deposits amount as assessed by it having regard to cheque amount, interest/costs, etc. within stipulated period. Compounding at initial stage and even at later stage is acceptable. Certain proceedings can be conducted online. Affidavit evidence can be received as evidence at all stages of trial or proceedings.

For the summary trial, the procedure to be followed is basically the same as in the case of a summons-case as laid down in Chapter 20 of the Cr.P.C. (Section 251 to 259) with some minor changes.

This procedure in brief is as under:

1. When accused appears before the court after he has been summoned, the particulars of the offence of which he is accused shall be stated to him, and he shall be asked whether he pleads guilty or has any defence to make. However, it is not necessary to frame a formal charge.
2. If the accused pleads guilty, the Magistrate records the plea and may, in his discretion, convict him thereon.
3. Otherwise, the Magistrate proceeds to hear the prosecution and records all prosecution evidence. Affidavit evidence can be received as evidence of the witnesses. The accused has the right to cross-examine witnesses of the prosecution.
4. Thereafter, the court hears the accused and takes all such evidence as he produces in his defence.
5. After this, after hearing final arguments, the court will pronounce its judgment.

If you want to amend the list of prosecution witnesses, you can make an application before the court for doing so, giving whatever relevant reasons are there.

Your third question is too wide to cover here. You can take guidance from some local lawyer if you are new and do not know much about the procedure.

     

---

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 is what I was suspecting and that is why I asked you to check the details of the cases in which order of high court has been challenged.

Since you have an Advocate on Record in your caveat, you can ask him to check from registry and request them to list your caveat also in the SLP filed, since it is a common order of the high court. I personally feel the registry may agree if you point out this reason, i.e., it was a common order in all these cases and your caveat covers that common order.

However, if the SC registry does not agree, then you may file a new caveat.     

---

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.

[Author]

Posts