Dr. Ashok Dhamija
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Dr. Ashok DhamijaAdvocateThe fact that your wife has filed a case against you much after you had filed a forgery case against her, will definitely go in your favour to give an indication that she might have filed the case in a revengeful manner. While this will be an added factor in your favour, ultimately the case filed by her will be decided on its own facts and merits. You may have to show as to how the case filed by her is false and non-existing. I remember that in another question you had mentioned that for last about 2 years or so, you are not in India and are living in some other country. So, that may also help you to prove that she has filed a case against you on the basis of non-existing facts. However, you should go in for quashing of the case filed by her against you mainly on the basis of the facts / merits of her case, while of course you can make use of above points in your favour.
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 DhamijaAdvocatePlease ask your question in plain language, instead of reproducing pleadings of a court. It is not possible for us to get sufficient time to go through your detailed pleadings.
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 DhamijaAdvocatePlease ascertain this from your local lawyer since he would be fully aware of detailed facts and he would also have seen the last orders of the 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.
December 8, 2017 at 9:17 am in reply to: Criminal case pending ,can I enrolled under Bar Council, apply in upsc&judiciary #3587Dr. Ashok DhamijaAdvocateSection 24-A of the Advocates Act, 1961, deals with the question asked by you:
“24-A. Disqualification for enrolment.—(1) No person shall be admitted as an advocate on a State roll—
(a)if he is convicted of an offence involving moral turpitude;
(b)if he is convicted of an offence under the provisions of the Untouchability (Offences) Act, 1955 (22 of 1955);
(c) if he is dismissed or removed from employment or office under the State on any charge involving moral turpitude.
Explanation.—In this clause, the expression “State” shall have the meaning assigned to it under Article 12 of the Constitution:
Provided that the disqualification for enrolment as aforesaid shall cease to have effect after a period of two years has elapsed since his release or dismissal or, as the case may be, removal.
(2) Nothing contained in sub-section (1) shall apply to a person who having been found guilty is dealt with under the provisions of the Probation of Offenders Act, 1958 (20 of 1958).”
Therefore, conviction in an offence involving moral turpitude, etc., may make you ineligible for enrolment as an advocate. Find out – What is meant by moral turpitude?
On the face of it, the offence mentioned by you does not appear to be an offence involving moral turpitude, however, it would depend on the detailed facts.
In the application form for enrolment as an advocate, questions would be asked relating to conviction in a criminal case and pendency of a criminal case. You should truthfully answer those questions. Chances are that pendency of a criminal case may not come in the way of getting enrolled as an advocate. But, after conviction, it may create problems.
More or less similar situation would prevail for getting a Government job during pendency of a criminal 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.
December 7, 2017 at 5:17 pm in reply to: FIR – containing extra sentence which original complaint did not have #3584Dr. Ashok DhamijaAdvocateYou can show to the court the contradiction in the FIR and the original complaint given to police. Such contradiction may not necessarily imply that the whole complaint is false, but the contradiction may definitely help you as an accused if it is on a substantive issue. Depending on the facts of a case, occasionally such a contradiction may even be fatal to the prosecution case, though not always.
Also keep in mind that FIR is not the end of everything in a criminal case. Ultimately, the offence has to be proved on the basis of the totality of the evidence adduced during the case and the FIR is one piece of the evidence.
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 DhamijaAdvocateFirstly, let it be made clear that the maximum punishment for offence under Section 308 IPC is 7 years, where the same for an offence under Section 307 IPC is life imprisonment or 10 years (depending upon which part of the section is attracted).
Therefore, for the purposes of arrest under Section 41 of the Criminal Procedure Code, clause (b) of Sub-section (1) is attracted for Section 308 IPC, and clause (ba) of Sub-section (1) is attracted for Section 307 IPC.
Since the provisions of Section 41-A of Criminal Procedure Code are applicable to those offences which are covered under clause (b) of Sub-section (1) of Section 41, the same would not be applicable to an offence under Section 307 IPC since for this offence clause (ba) of Sub-section (1) of Section 41 is applicable. In view of this, arrest for an offence under Section 307 IPC can be made irrespective of the notice issued under the provisions of Section 41-A of the Cr.P.C.
In any case, even for an offence which is covered under the provisions of Section 41-A of the Cr.P.C., sub-sections (3) and (4) thereof provide the situations in which a person may be arrested after a notice under this section has been issued to him:
“(3) Where such person complies and continues to comply with the notice, he shall not be arrested in respect of the offence referred to in the notice unless, for reasons to be recorded, the police officer is of the opinion that he ought to be arrested.
(4) Where such person, at any time, fails to comply with the terms of the notice or is unwilling to identify himself, the police officer may, subject to such orders as may have been passed by a competent Court in this behalf, arrest him for the offence mentioned in the notice.”
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 DhamijaAdvocateThe procedure / nomenclature may be slightly different in different states. Usually, paper book is prepared in the appellate court.
In any case, you may request the court, by filing an appropriate application, seeking permission / more time to file your affidavit / evidence, whatever you need to file in 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.
December 5, 2017 at 2:35 pm in reply to: Approvals / Licences required to start a self owned small business #3574Dr. Ashok DhamijaAdvocateThis question may better be asked from some CA (Chartered Accountant) or some online forum for CA related issues who deal with these issues.
But, as far as I understand, depending on the nature of your restaurant / food business, you may need food licence from FSSAI [under Food Safety and Standards (Licensing and Registration of Food Businesses) Regulation, 2011], shop licence [under the relevant Food & Establishment Act], Licence for eating house (from police authorities or District Magistrate), fire safety licence, environmental clearance certificate (from the pollution board of the state), Approval from the Weights & Measures Department, etc. Then, there may be other licences necessary. Depending on turnover, you may also need GST registration. If it is a partnership business, then you may need to register a partnership firm and open bank account in the name of the firm. If you don’t have PAN number, that may have to be obtained. If you are going to transport food items to other hotels, restaurants, then you may need commercial licence for your vehicle for carrying commercial goods. Some of these licences may not be necessary if you are not running any formal restaurant. Please consult some local CA for more 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 DhamijaAdvocateYou may have to check from your advocate and/or the high court registry as to how much time has been given to the respondents to file their reply / objections. One month is not at all a long period, generally speaking, unless the writ petition is of a very urgent nature. In some high courts (such as in Delhi high court), usually a period of 2-3 months is given for filing reply. Subsequently, on request, such time to file reply may be extended also. Delay in courts is a well-known fact. You’ll have to have patience. In any case, such things should better be asked from your advocate.
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.
December 5, 2017 at 2:13 pm in reply to: Stop Cheque Issue and Gated community new amenities issue #3571Dr. Ashok DhamijaAdvocateIt is not made clear whether yours is a registered cooperative housing society. You have stated that the committee members are not elected (or selected), but you have not clarified then who has appointed them and how?
In any case, in general, the decisions of a housing society are governed by majority. If you are objecting to their decision, then there are at least 51% members who are supporting them. So, generally, majority will prevail, otherwise a society can never take a decision if it is to be supported by 100% of the members. Of course, if a particular matter requires a special majority (76%) under the bye-laws of the society, then it is a different issue altogether since in that case at least 76% members have to support. However, for that, you’ll have to check your bye-laws and the relevant State Act whether such matter is required to be adopted only by a special majority of 76% or above. In the absence of such provisions, it is a normal majority (51%) that prevails.
However, if you are not satisfied with the decision, depending upon the provisions of the State Act applicable in your case, you may approach the Registrar / Tribunal / Court concerned for resolution of such dispute between you and the society.
With regard to your second question, if the cheque has been issued for discharge of a debt or liability, then in spite of stop payment the cheque bounce case may be made out.
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.
December 4, 2017 at 10:45 pm in reply to: about protest petition by victim but not complainant #3565Dr. Ashok DhamijaAdvocateFirstly, you have said that the High Court itself asked you to file a protest petition in the local court. In this situation, the local court should not question your locus standi since this liberty has been granted to you by the high court. In any case, the victim of the offence has a local standi in his capacity as victim since he has suffered due to the offence.
Secondly, you have said that there are 80 victims of the same offence, but the complaint can be generally only by one person who may be a victim or may not be a victim himself. The complainant may file the complaint in a representative capacity on behalf of all victims or sometimes, similar cases of all other victims are subsequently clubbed together in the same case. In such a situation, the victim has local standi in his capacity as being the victim, being the sufferer of the crime, even though he may not be formally the complainant.
In fact, recently, the Criminal Procedure Code was amended and victim’s rights have been expanded. Now, a victim has a right even to appeal against acquittal of the accused. He should similarly have a right to file protest petition under Section 173 of the Cr.P.C. if the police closes the investigation and files a closure report.
Since it is an established law that the FIR can be lodged even on the basis of the complaint given by a complete stranger (i.e., who may not be himself a victim) and such person then becomes the complainant. Giving a right to such complainant (who is a complete stranger to the offence) to file the protest petition, while denying the same right to the actual victim would be travesty of justice.
Therefore, I think you have a locus standi to file protest petition in your capacity as a victim. If the Magistrate does not agree with you and dismisses your protest petition on this ground, you can challenge his order in the high courts.
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 DhamijaAdvocateGenerally, it is “your word” against “my word” in such matters. You can try to give evidence, preferably, of some independent witnesses, if any, to show that she had taken the gold with her. Any photograph of hers, after she left the house, which shows the gold jewellery in question may also help.
For deciding the question relating to the gold purchased by your mother, one has to see whether this gold was gifted to your wife in connection with the marriage. If it was gifted to her, then it may be included in your wife’s “streedhan” and she may claim it. But, if the gold was never gifted or transferred to your wife, but continued to be wholly or solely owned and possessed by your mother, then it may continue to be the “streedhan” of your mother and in that situation, your wife may not be able to claim 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 DhamijaAdvocateDefinition of “shared household” under Section 2(s) of the Protection of Women from Domestic Violence Act is as under:
“(s) “shared household” means a household where the person aggrieved lives or at any stage has lived in a domestic relationship either singly or along with the respondent and includes such a household whether owned or tenanted either jointly by the aggrieved person and the respondent, or owned or tenanted by either of them in respect of which either the aggrieved person or the respondent or both jointly or singly have any right, title, interest or equity and includes such a household which may belong to the joint family of which the respondent is a member, irrespective of whether the respondent or the aggrieved person has any right, title or interest in the shared household;”
In the case of S.R. Batra v. Taruna Batra, (2007) 3 SCC 169 : AIR 2007 SC 1118, the Supreme Court held that the house which exclusively belonged to mother-in-law of the woman (respondent) wherein she only lived with her husband for some time in the past after their marriage, was not a “shared household” within the meaning of S. 2(s), hence the respondent woman was held to be not entitled to claim her right to live therein under S. 17 of the above Act. It was held that in order to claim such a right, the property should belong to her husband or it should have been taken on rent by her husband or it should have been a joint family property in which her husband was a member. The Supreme Court held that:
“As regards Section 17(1) of the Act, in our opinion the wife is only entitled to claim a right to residence in a shared household, and a shared household would only mean the house belonging to or taken on rent by the husband, or the house which belongs to the joint family of which the husband is a member. The property in question in the present case neither belongs to Amit Batra nor was it taken on rent by him nor is it a joint family property of which the husband Amit Batra is a member. It is the exclusive property of Appellant 2, mother of Amit Batra. Hence it cannot be called a “shared household”.
No doubt, the definition of “shared household” in Section 2(s) of the Act is not very happily worded, and appears to be the result of clumsy drafting, but we have to give it an interpretation which is sensible and which does not lead to chaos in society.”
In a recent case, Manmohan Attavar v. Neelam Manmohan Attavar, (2017) 8 SCC 550, the Supreme Court held that:
“…the respondent has never stayed with the appellant in the premises in which she has been directed to be inducted. This is an admitted position even in answer to a court query by the respondent during the course of hearing. The “domestic relationship” as defined under Section 2(f) of the DV Act refers to two persons who have lived together in a “shared household”. A “shared household” has been defined under Section 2(s) of the DV Act. In order for the respondent to succeed, it was necessary that the two parties had lived in a domestic relationship in the household. However, the parties have never lived together in the property in question. It is not as if the respondent has been subsequently excluded from the enjoyment of the property or thrown out by the appellant in an alleged relationship which goes back 20 years. They fell apart even as per the respondent more than 7 years ago.”
In the light of the above legal position and keeping in mind the facts stated in your question, it appears that the house in the city B may not be included in the definition of “shared household”.
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 DhamijaAdvocateUsually, one would need to see the actual documents to find out whether there is a forgery. But, from the description given by you, it appears that the document mentioned by you has been forged and relevant sections of IPC (such as Section 465) relating to forgery may be applicable. For a confirmed opinion, you may show the documents to some local lawyer.
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 DhamijaAdvocatePlease read the following reply for cheque bounce case for hand loan: Cheque bounce under S. 138 for friendly cash loan or hand loan.
Also see: Dishonour of cheque given as security – whether offence under Section 138 N.I. Act made out?
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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