[Dr. Ashok Dhamija]

Since the suit is withdrawn and no second suit is filed, the rights and liabilities of the plaintiff are not changed due to such withdrawn suit. They remain the same as they were supposed to be before such suit was filed (which now stands withdrawn).

     

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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 question can be divided in two parts.

Firstly, whether a review petition can be filed in the high court after dismissal of SLP against the high court order. If the SLP has been dismissed by a speaking order by considering merits of the case, then due to the doctrine of merger, the high court judgment is supposed to have merged in the SC order, and therefore, no review petition can subsequently be filed in the high court. However, if the Supreme Court has dismissed the SLP in limine without passing a speaking order, then a review petition can be filed in the high court, and in this regard, you may see my article: Review petition in High Court after dismissal of SLP by Supreme Court by non-speaking order.

Secondly, whether a second review petition can be filed in the high court. Here also, there could be two situations. The first situation is when the second review application is filed to review the order passed in the first review application. This is not permissible in view of the provisions of Order 47 Rule 9 of Civil Procedure Code, which lay down that “No application to review an order made on an application for a review or a decree or order passed or made on a review shall be entertained”. But, if it is in respect of an order under Article 226 of the Constitution (and not in respect of a CPC order), then it may depend on the relevant rules of the high court concerned. The second situation is that the second review application is filed in the original order itself in which previously the first review application was filed. In this situation, by a detailed reasoned order, a division bench of Madras High Court in the case of T.N. Arasu Kooturuvuthurai Paniyalargal Sangam v. M.R. Srinivasan, (2015) 4 LW 741 (Mad) (DB) : (2015) 5 CTC 225 (Mad) (DB), has held that such a second review application may be permissible in law. It is pertinent to point out that with respect of its own power to entertain a second review petition, in view of the provisions of Article 137 of the Constitution, in the case of Ram Deo Chauhan v. Bani Kanta Das, (2010) 14 SCC 209, the Supreme Court has held that it can entertain a second review petition in exceptional circumstances. It is germane to point out that in some old cases, such as (i) Gobinda Ram Mondal v. Bholanath Bhatta, (1888) ILR 15 Cal 432; (ii) Pallia v. Mathura Prasad, (1916) ILR 38 All 280; (iii) Hari Singh v. Muhammad Said, (1927) ILR 8 LAH 54, also, it was held that a second review petition may be permissible in law. While second review petition may be permissible in law, it would generally be very rare and would happen only in exceptional circumstances.     

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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]

An application for seeking compensation arising out of a motor accident which led to such serious bodily injury can be filed in the Motor Accidents Claims Tribunal (MACT). It has to be filed before the Claims Tribunals having territorial jurisdiction as defined in Section 166(2) of the Motor Vehicles Act, 1988, which is as under:

“(2) Every application under sub-section (1) shall be made, at the option of the claimant, either to the Claims Tribunal having jurisdiction over the area in which the accident occurred, or to the Claims Tribunal within the local limits of whose jurisdiction the claimant resides or carries on business or within the local limits of whose jurisdiction the defendant resides, and shall be in such form and contain such particulars as may be prescribed:

Provided that where no claim for compensation under Section 140 is made in such application, the application shall contain a separate statement to that effect immediately before the signature of the applicant.”

Therefore, it may be convenient to file such claim in the Claims Tribunal having jurisdiction over the area in which the accident occurred, or to the Claims Tribunal within whose jurisdiction the claimant resides or carries on business. It can also be filed in the Claims Tribunal within the local limits of whose jurisdiction the defendant resides.

     

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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]

The Supreme Court has directed [Citizens for Democracy v. State of Assam, (1995) 3 SCC 743 : AIR 1996 SC 2193] that where the police or the jail authorities have well-grounded basis for drawing a strong inference that a particular prisoner is likely to jump jail or break out of the custody then the said prisoner be produced before the Magistrate concerned and a prayer for permission to handcuff the prisoner be made before the said Magistrate. Save in rare cases of concrete proof regarding proneness of the prisoner to violence, his tendency to escape, he being so dangerous/desperate and the finding that no other practical way of forbidding escape is available, the Magistrate may grant permission to handcuff the prisoner. In all the cases where a person arrested by police, is produced before the Magistrate and remand — judicial or non-judicial — is given by the Magistrate the person concerned shall not be handcuffed unless special orders in that respect are obtained from the Magistrate at the time of the grant of the remand. When the police arrests a person in execution of a warrant of arrest obtained from a Magistrate, the person so arrested shall not be handcuffed unless the police has also obtained orders from the Magistrate for the handcuffing of the person to be so arrested. Where a person is arrested by the police without warrant the police officer concerned may if he is satisfied, on the basis of the guidelines given by us in para above, that it is necessary to handcuff such a person, he may do so till the time he is taken to the police station and thereafter his production before the Magistrate. Further use of fetters thereafter can only be under the orders of the Magistrate as already indicated. The Supreme Court has directed that any violation of any of the directions by any rank of police in the country or member of the jail establishment shall be summarily punishable under the Contempt of Courts Act apart from other penal consequences under law.

These guidelines make it clear that it is necessary to obtain orders from the Magistrate for handcuffing of a person arrested. Such permission is to be given where there is proneness of the prisoner to violence, his tendency to escape, he being so dangerous/desperate and the finding that no other practical way of forbidding escape is available. However, as held by the Supreme Court, if the above tendencies are noticed, and if is considered necessary due to these reasons, then the police can use handcuffs till the time he is taken to the police station after his arrest without warrant and thereafter till his production before the Magistrate; but, after he has been produced before Magistrate, handcuffs can be used only on the orders of the Magistrate.

If you feel that handcuffs have been used in contravention of the above guidelines, then you may complain to the Magistrate for taking action against the police officers concerned.

     

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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 question is whether a review petition can be filed in Supreme Court against dismissal of SLP by the Supreme Court. The answer is “yes”. A review petition is possible after dismissal of SLP. The limitation period for filing review petition is 30 days, but a party may file an application for condonation of delay if it can explain the delay.

However, in practice, the chances of success in a review petition are very negligible. See: Success Rate of Review Petition and Curative Petition in Supreme Court.

Your second question – the order in the SLP is not a speaking order.

     

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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 Katta Sujatha v. Fertilizers & Chemicals Travancore Ltd., (2002) 7 SCC 655, which was a case of cheque dishonour under Section 138 of the Negotiable Instruments Act, the Supreme Court held that the partner of a firm is liable to be convicted for an offence committed by the firm if he was in charge of and was responsible to the firm for the conduct of the business of the firm or if it is proved that the offence was committed with the consent or connivance of, or was attributable to any neglect on the part of the partner concerned.

In respect of the appellant in the above case, who was partner of the firm involved in the cheque bounce case, the Supreme Court observed that: “…the appellant was in no way involved in any of the transactions referred to in the complaint and it was not stated that she was in charge of the business and was responsible for the conduct of the business of the firm in terms of Section 141 of the Act nor was there any other allegation made against the appellant that she had connived with any other partner in the matter of issue of cheque.”

In your case, you have mentioned that the cheque was signed by one partner. It is not clear from your question as to what was the specific role of the second partner in the case and also what specific averments were made in the complaint with regard to the second partner, i.e., whether he was in charge of the business and was responsible for the conduct of the business of the firm in terms of Section 141 of the Negotiable Instruments Act or is there any other allegation made against him that he had connived with the other partner in the matter of issue of cheque.

Depending on all these issues and the facts of the case, the role of the second partner has to be decided by the court, i.e., whether the second partner is involved in the case as an accused or not. If you are not satisfied with the order of the trial court, you may challenge such decision before the next 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]

The offence under Section 498A of IPC is punishable with the maximum imprisonment of 3 years. Therefore, as per the provisions of the Criminal Procedure Code, the limitation period for the court to take cognizance of such offence is 3 years.

If the incidents mentioned in the FIR under Section 498-A IPC are 6 years old or even older, then such FIR would be time-barred and may not be valid in law, being beyond the limitation period prescribed under the Cr.P.C. for taking cognizance. However, please also remember that the court has the power to condone delay, since under the Cr.P.C., a Court may take cognizance of an offence after the expiry of the period of limitation, if it is satisfied on the facts and in the circumstances of the case that the delay has been properly explained or that it is necessary so to do in the interests of justice.

     

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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]

By an amendment made to the Criminal Procedure Code, a Proviso was added to Section 372 thereof in the year 2009, which lays down as under:

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

In view of the above legal provision, as victim of the offence, you have right to file an appeal against the order of acquittal. So, you may file an appeal before the high court.

If there is delay beyond the limitation period, you may file an application for condonation of delay.

     

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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]

The fact that you are a member of the recruitment board and a phone call was made from your phone to a candidate demanding bribe, would make out a prima facie case of involving you in the conspiracy.

You’ll have to prove that you are innocent in the matter by showing that your phone was taken by your superior. Since the phone call has been taped by the agencies, as you have mentioned, the voice sample should show that it was not your voice but that of your superior, whom you may name during investigation so that his voice sample could also be collected. The prosecution evidence and other circumstances will have to be analysed in detail by you and/or your lawyer to show your innocence during trial. A person who is well aware of the detailed facts of the case can only comment further in your matter. Please consult some local lawyer.

     

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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 not possible for me to predict as to which party has more chance to win before the division bench (double bench) of the high court, in the absence of knowledge of the detailed facts of the case. Result in a case depends on the detailed analysis of the facts and legal issues involved. In your case itself, results before 3 different courts have been different. It is not possible to speculate about the result of the case, more so since I am not even aware of the detailed facts and the legal issues in the present case. You should ask your lawyer if you are a party to the case.

If the order of the division bench of the high court is challenged before the Supreme Court, then let me point out that most of such challenges (which are in the form of SLP) are dismissed on the first date itself since the Supreme Court would generally refuse to issue notice in such SLPs (in such situation, it may take about a month or so only, in the Supreme Court). However, if the notice is issued in SLP, then the matter may take longer, and subsequently if leave is granted in the SLP (converting it into a regular appeal), the case may remain pending in the Supreme Court for a few years (generally, it may be 5-6 years or even more).

Yes, the order of the Supreme Court may affect the appointment also (if made on the basis of high court order) if the high court order is subsequently set aside by the Supreme 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]

Appointing someone as custodian and then that person not having control over the stock, appear to be contradiction in terms. I am not aware of the detailed facts of the case, but in my opinion, after being given the custody of the detained goods, it becomes the responsibility of the custodian to ensure that the goods remain intact and he may have to take control of the stocks, if necessary, to fulfil this responsibility. Otherwise, he should not have accepted the responsibility of being custodian.

Though you have not given details of the legal provisions under which such custodian has been appointed by the central excise officer, in general, if someone is appointed as custodian of detained goods and he accepts this responsibility, then any shortage in such detained goods may expose such person to action under the Central Excise Act, and may also perhaps expose him to the charge of offence of misappropriation of goods.

If such person does not want to continue as custodian, he may have to contact the concerned central excise officer for the change; especially if he wants to leave the company he should bring this fact to the notice of the central excise officer so that the latter can make alternative arrangements for appointing someone else as custodian of the goods detained.

     

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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]

About 10 months back, the Central Government had set up an email ID blackmoneyinfo@incometax.gov.in on which information about black money could be given (see, the news report, here).

Moreover, Director General, Investigation, Income Tax, is the wing of the Income Tax department that deals with investigation into black money and related issues. Contact details of all the offices of the DG, Investigation, Income Tax, spread all over the country, can be seen by clicking on this page; you can search the contact details of the concerned office in your city or state (http://office.incometaxindia.gov.in/investigation/Documents/Investigation.pdf) and contact them.

In addition to this, recently there were media reports (see, here) as per which the Centre is planning to give out cash rewards to the tune of Rs 1 crore to secret informers who provide information to investigative agencies about benami properties. As per this news report, an announcement is expected to be made by October end or first week of November. So far, there is no such announcement. If I come across any such announcement, I’ll update this reply to your question.

     

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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 your uncle was allowed to live in the house by your father gratuitously and purely out of natural love and affection. In these circumstances, your uncle will not acquire any right to the house or any right to live in the said house as per his own wish.

In this regard, I may be point out that recently, in the case of Behram Tejani v. Azeem Jagani, (2017) 2 SCC 759, the Supreme Court held that a person holding the premises gratuitously or in the capacity as a caretaker or a servant would not acquire any right or interest in the property and even long possession in that capacity would be of no legal consequences.

Previously, in the case of Maria Margarida Sequeira Fernandes v. Erasmo Jack de Sequeira, (2012) 5 SCC 370, the Supreme Court had held that:

“Principles of law which emerge in this case are crystallised as under:

(1) No one acquires title to the property if he or she was allowed to stay in the premises gratuitously. Even by long possession of years or decades such person would not acquire any right or interest in the said property.

(2) Caretaker, watchman or servant can never acquire interest in the property irrespective of his long possession. The caretaker or servant has to give possession forthwith on demand.

(3) The courts are not justified in protecting the possession of a caretaker, servant or any person who was allowed to live in the premises for some time either as a friend, relative, caretaker or as a servant.

(4) The protection of the court can only be granted or extended to the person who has valid, subsisting rent agreement, lease agreement or licence agreement in his favour.

(5) The caretaker or agent holds property of the principal only on behalf of the principal. He acquires no right or interest whatsoever for himself in such property irrespective of his long stay or possession.”

     

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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 such a situation, the best course for you would be to get the address of the drawer of the cheque and to serve the notice on him. If there is no time left to serve the notice within the stipulated time period and if there is no other option (such as to deposit the cheque again in the bank), then in consultation with your lawyer you may consider the following course of action (which may or may not be successful in a given case, depending on facts of the case concerned).

Section 27 of the General Clauses Act gives rise to a presumption that service of notice has been effected when it is sent to the correct address by registered post:

“27. Meaning of service by post.—Where any Central Act or Regulation made after the commencement of this Act authorizes or requires any document to be served by post, whether the expression “serve” or either of the expression “give” or “send” or any other expression is used, then, unless a different intention appears, the service shall be deemed to be effected by properly addressing, pre-paying and posting by registered post, a letter containing the document, and unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post.”

In the case of  State of M.P. v. Hiralal, (1996) 7 SCC 523, the Supreme Court has held that where the respondents managed to have the notice returned with postal remarks “not available in the house”, “house locked” and “shop closed” respectively, it must be deemed that the notices have been served on the respondents.

In the case of Madhu v. Omega Pipes Ltd., (1994) 1 An LT (Cri) 603 (Ker), Kerala high court has held as under:

“In clause (c) of the proviso the drawer of the cheque is given fifteen days from the date ‘of receipt of the said notice’ for making payment. This affords clear indication that ‘giving notice’ in the context is not the same as receipt of notice. Giving is the process of which receipt is the accomplishment. The payee has to perform the former process by sending the notice to the drawer in his correct address. If receipt or even tender of notice is indispensable for giving the notice in the context envisaged in clause (b) an evader would successfully keep the postal article at bay at least till the period of fifteen days expires. Law shall not help the wrongdoer to take advantage of his tactics. Hence the realistic interpretation for the expression ‘giving notice’ in the present context is that, if the payee has dispatched notice in the correct address of the drawer reasonably ahead of the expiry of fifteen days, it can be regarded that he made the demand by giving notice within the statutory period. Any other interpretation is likely to frustrate the purpose for providing such a notice.”

In the case of C.C. Alavi Haji v. Palapetty Muhammed, (2007) 6 SCC 555 : 2007 Cri LJ 3214, the Supreme Court held that:

“Section 27 gives rise to a presumption that service of notice has been effected when it is sent to the correct address by registered post. In view of the said presumption, when stating that a notice has been sent by registered post to the address of the drawer, it is unnecessary to further aver in the complaint that in spite of the return of the notice unserved, it is deemed to have been served or that the addressee is deemed to have knowledge of the notice. Unless and until the contrary is proved by the addressee, service of notice is deemed to have been effected at the time at which the letter would have been delivered in the ordinary course of business. This Court has already held that when a notice is sent by registered post and is returned with a postal endorsement “refused” or “not available in the house” or “house locked” or “shop closed” or “addressee not in station”, due service has to be presumed. (Vide Jagdish Singh v. Natthu Singh [(1992) 1 SCC 647 : AIR 1992 SC 1604]; State of M.P. v. Hiralal [(1996) 7 SCC 523] and V. Raja Kumari v. P. Subbarama Naidu [(2004) 8 SCC 774].) It is, therefore, manifest that in view of the presumption available under Section 27 of the Act, it is not necessary to aver in the complaint under Section 138 of the Act that service of notice was evaded by the accused or that the accused had a role to play in the return of the notice unserved.”

In the above C.C. Alavi Haji  case, the Supreme Court further held as under:

“It is also to be borne in mind that the requirement of giving of notice is a clear departure from the rule of criminal law, where there is no stipulation of giving of a notice before filing a complaint. Any drawer who claims that he did not receive the notice sent by post, can, within 15 days of receipt of summons from the court in respect of the complaint under Section 138 of the Act, make payment of the cheque amount and submit to the court that he had made payment within 15 days of receipt of summons (by receiving a copy of complaint with the summons) and, therefore, the complaint is liable to be rejected. A person who does not pay within 15 days of receipt of the summons from the court along with the copy of the complaint under Section 138 of the Act, cannot obviously contend that there was no proper service of notice as required under Section 138, by ignoring statutory presumption to the contrary under Section 27 of the GC Act and Section 114 of the Evidence Act. In our view, any other interpretation of the proviso would defeat the very object of the legislation. As observed in Bhaskaran case [(1999) 7 SCC 510] if the “giving of notice” in the context of Clause (b) of the proviso was the same as the “receipt of notice” a trickster cheque drawer would get the premium to avoid receiving the notice by adopting different strategies and escape from legal consequences of Section 138 of the 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]

It is not possible to fully comprehend your question. I am replying to your question to the extent I could understand. Further please note that it is not possible for me to reply on the details facts of the case without having gone through the detailed facts.

It is not mandatory to file a cheque bounce case both under Section 138 of Negotiable Instruments Act and Section 420 of IPC. It depends on facts of the case concerned. But, generally, a cheque bounce case is filed only under Section 138 of the N.I. Act.

I cannot comment on whether this is the reason for dismissal of the case. For this, you have to read the judgment as to why it was dismissed. Consult your lawyer if you cannot draw the conclusions from the judgment.

No, if the original case was under Section 138 N.I. Act only, then it may not be possible to include Section 420 IPC while filing appeal.

Appeal has to be filed in the District (Sessions) Court.

I cannot comment on whether the appeal would be favourable to you. It all depends on detailed facts of the case and various other factors.

     

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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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