Dr. Ashok Dhamija
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Dr. Ashok DhamijaAdvocateFor example, he deliberately gave you the false promise of selling his property to repay the loan, if needed, but if he had no such intention since the beginning only. His subsequent conduct of transferring the property to daughter by way of gift substantiates this.
As regards the facts of the case in detail, I cannot comment. Please take advice of your lawyer who would have seen the detailed facts.
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.
October 27, 2017 at 5:53 pm in reply to: A person says he accepted bribe on my behalf – both challaned for corruption #3251Dr. Ashok DhamijaAdvocateIt happens in many cases that bribe is accepted by one person on behalf of another person. You have not given full facts as to whether you had demanded the bribe from the complainant and whether you had asked him to hand over the bribe to the other accused person. Or, else, whether the other accused person had demanded and accepted the bribe in order to influence you by way of corrupt or illegal means or by using his personal influence, and if you had abetted such acts.
If the ACB has chargesheeted both of you, then that would imply that it would be having evidence against you for having demanded bribe and/or having abetted the offence. Though you have not mentioned the sections under which you have been chargesheeted, it may be under Section 7, 13(2) read with 13(1)(d) of the Prevention of Corruption Act (along with abetment section 12 or may be conspiracy section 120-B IPC), or may be under section 8 (or 9) along with section 10 of the said Act, depending on facts of your case.
You’ll have to defend the case during trial. You may also try filing a discharge application if there is no prima facie evidence available against you. Consult some local lawyer who can guide you after reading full details of your 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.
October 27, 2017 at 5:40 pm in reply to: Automatic renewal of 99 year lease on expiry if no clause to renew in agreement #3250Dr. Ashok DhamijaAdvocateIf the lease agreement does not contain any renewal clause, on completion of the lease period, the vacant and peaceful possession of the land concerned has to be returned by the lessee to the lessor. In the absence of any renewal clause, the lease cannot be renewed automatically. Of course, it is open for the parties concerned to renegotiate the renewal of the lease on fresh terms which may be mutually agreeable to them; and, they may renew the lease if they agree. But, in the absence of such renewal, the land has to be returned to the lessor.
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.
October 27, 2017 at 5:35 pm in reply to: Notice by police to accused before his arrest under CRPC amendment #3249Dr. Ashok DhamijaAdvocateIt is Section 41-A of the Criminal Procedure Code which requires the police officer concerned to issue notice to a person, to appear before him, whose arrest is not considered necessary under the provisions of sub-section (1) of Section 41 of the Cr.P.C.
“41-A. Notice of appearance before police officer.—(1) The police officer shall, in all cases where the arrest of a person is not required under the provisions of sub-section (1) of Section 41, issue a notice directing the person against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists that he has committed a cognizable offence, to appear before him or at such other place as may be specified in the notice.
(2) Where such a notice is issued to any person, it shall be the duty of that person to comply with the terms of the notice.
(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.”
It is quite obvious from the above section that such notice is required to be issued in writing and not orally.
Nonetheless, since you have been asked by the investigating officer, orally, to remain present before him, it is advisable that you should remain present before him to assist in the investigation. You might have been called to provide some relevant information or clarification with regard to the investigation. At the same time, if you feel that you have been called by the I.O. for the purposes of arresting you, if so you wish, you may seek time from him for remaining present and meanwhile you may file an application for anticipatory bail before the appropriate 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.
October 27, 2017 at 5:16 pm in reply to: Any limitation that evidence cannot be given at late stage of trial? #3248Dr. Ashok DhamijaAdvocateThe procedure for conducting trial and adducing evidence are laid down in the Criminal Procedure Code and Evidence Act. For example, Chapter 18 of the Cr.P.C. (Section 225-237) lays down the detailed step-by-step procedure for conducting trial in a Court of Session. This chapter lays down procedure relating to production of prosecution evidence and defence evidence. This is the general procedure, however, and wherever required, in the interest of justice, the court has the power to allow evidence at any later stage also, before the pronouncement of judgment.
For example, see Section 311 of the Cr.P.C.:
“311. Power to summon material witness, or examine person present.— Any Court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and re-examine any person already examined; and the Court shall summon and examine or recall and re-examine any such person if his evidence appears to it to be essential to the just decision of the case.”
This provision is quite wide and permits the court to examine any witness at any stage of the trial. If needed, an application can be made by a party to the case to the court for exercising this power.
Likewise, see Section 165 of the Evidence Act:
“165. Judge’s power to put questions or order production.—The Judge may, in order to discover or to obtain proper proof of relevant facts, ask any question he pleases, in any form, at any time, of any witness, or of the parties, about any fact relevant or irrelevant; and may order the production of any document or thing; and neither the parties nor their agents shall be entitled to make any objection to any such question or order, nor, without the leave of the Court, to cross-examine any witness upon any answer given in reply to any such question:
Provided that the judgment must be based upon facts declared by this Act to be relevant, and duly proved:
Provided also that this section shall not authorize any Judge to compel any witness to answer any question, or to produce any document which such witness would be entitled to refuse to answer or produce under Sections 121 to 131, both inclusive, if the question were asked or the document were called for by the adverse party; nor shall the Judge ask any question which it would be improper for any other person to ask under Section 148 or 149; nor shall he dispense with primary evidence of any document, except in the cases hereinbefore excepted.”
This section, inter alia, gives power to the court to order the production of any document or thing at any time in order to discover or to obtain proper proof of relevant facts. If needed, an application may be filed by a party to the court for this purpose.
Thus, the party concerned may have to take permission of the court for production of any relevant evidence at any stage of the trial, before pronouncement of the judgment, and the court has the power to permit the same if it is in the interest of justice. There is no limitation period in this regard, and no application for condonation of delay needs to be filed. However, of course, it may have to be explained why such evidence could not be submitted earlier and why it is essential in the interest of justice to submit such evidence at such late stage and the court will have to be convinced 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 DhamijaAdvocateSection 13(3-A) of the Consumer Protection Act, 1986, lays down as under:
“(3-A) Every complaint shall be heard as expeditiously as possible and endeavour shall be made to decide the complaint within a period of three months from the date of receipt of notice by opposite party where the complaint does not require analysis or testing of commodities and within five months, if it requires analysis or testing of commodities:
Provided that no adjournment shall be ordinarily granted by the District Forum unless sufficient cause is shown and the reasons for grant of adjournment have been recorded in writing by the Forum:
Provided further that the District Forum shall make such orders as to the costs occasioned by the adjournment as may be provided in the regulations made under this Act:
Provided also that in the event of a complaint being disposed of after the period so specified, the District Forum shall record in writing, the reasons for the same at the time of disposing of the said complaint.”
Same provision applies to proceedings before the State Consumer Disputes Redressal Commission and the National Consumer Disputes Redressal Commission.
Thus, ordinarily a consumer case is required to be disposed of within a period of 3 to 5 months. However, the provision itself makes it clear that it is only the expected time period and sincere efforts have to be made to dispose of consumer cases within this period.
But, in practice, due to a large number of consumer cases which are filed and due to insufficient strength of consumer courts which have been set up, and other procedural delays, generally it is not possible to dispose of cases in the above stipulated periods and there are huge delays. The amount of delay in disposal of cases differs from place to place. You can find out from the consumer forum where your case is pending as to how much is the usual delay in that specific consumer forum. You may request the forum to expedite your case citing whatever peculiar difficulties you are facing, but it depends on the pendency in that forum whether the forum would be able to expedite your 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 DhamijaAdvocateSection 190 of the Criminal Procedure Code itself, which relates to taking of cognizance of offences, lays down in sub-section (2) that the Chief Judicial Magistrate (CJM) may empower any Magistrate of the second class to take cognizance of such offences as are within his competence to inquire into or try. This section is as under:
“190. Cognizance of offences by Magistrates.— (1) Subject to the provisions of this Chapter, any Magistrate of the first class, and any Magistrate of the second class specially empowered in this behalf under sub-section (2), may take cognizance of any offence—
(a) upon receiving a complaint of facts which constitute such offence;
(b) upon a police report of such facts;
(c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed.
(2) The Chief Judicial Magistrate may empower any Magistrate of the second class to take cognizance under sub-section (1) of such offences as are within his competence to inquire into or try.”
Further, note that Section 325 of Cr.P.C. lays down that after hearing the evidence for the prosecution and the accused, if the Magistrate is of the opinion that the accused is guilty and that he ought to receive a punishment different in kind from or more severe than that which such Magistrate is empowered to inflict, he may record the opinion and submit his proceedings, and forward the accused, to the Chief Judicial Magistrate to whom he is subordinate. Thereafter, the CJM can award the appropriate punishment under law. This section is as under:
“325. Procedure when Magistrate cannot pass sentence sufficiently severe.—(1) Whenever a Magistrate is of opinion, after hearing the evidence for the prosecution and the accused, that the accused is guilty, and that he ought to receive a punishment different in kind from, or more severe than, that which such Magistrate is empowered to inflict, or, being a Magistrate of the second class, is of opinion that the accused ought to be required to execute a bond under Section 106, he may record the opinion and submit his proceedings, and forward the accused, to the Chief Judicial Magistrate to whom he is subordinate.
(2) When more accused than one are being tried together, and the Magistrate considers it necessary to proceed under sub-section (1), in regard to any of such accused, he shall forward all the accused, who are in his opinion guilty, to the Chief Judicial Magistrate.
(3) The Chief Judicial Magistrate to whom the proceedings are submitted may, if he thinks fit, examine the parties and recall and examine any witness who has already given evidence in the case and may call for and take any further evidence, and shall pass such judgment, sentence or order in the case as he thinks fit, and as is according to law.”
After completing trial, the Magistrate of second class can submit the case papers to the CJM who can then award higher punishment, as is permissible under law.
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 DhamijaAdvocateYour question involves complicated questions of facts and it is not appropriate to reply in the absence of knowing full facts of the case, including: under what law (in Kuwait) the marriage took place; whether such marriage was registered under the Foreign Marriage Act, 1969 (of India); or whether it was registered under the relevant law of Philippine.
If it was registered under the Foreign Marriage Act (of India), then they may apply for divorce under Section 28 of the Special Marriage Act, 1954 for divorce by mutual consent and the petition will have to be filed in the district court / family court. But, if it was not registered under the said Act or under any other Indian law, then one has to examine whether it was registered under the Philippine law and what are the provisions of such law.
But, let me point out that a foreign judgment may be recognized in India also subject to certain conditions laid down in the CPC.
You should consult some lawyer by providing full factual details, along with all relevant documents (including marriage certificate, if any) in order to get proper advice.
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.
October 25, 2017 at 2:20 pm in reply to: How many days it takes to remove defects in diary number in Supreme Court? #3238Dr. Ashok DhamijaAdvocateUsually a period of 28 days is allowed to remove the defects notified on filing of a petition (such as SLP), which is after diary number is allocated at the time of filing. For further delay, you may have to file an application for condonation of delay in re-filing the matter by removal of defects of filing.
Supreme Court Rules, 2013, lay down that the Application for condonation of delay in re-filing may be decided by the Registrar, provided the delay does not exceed 60 days from the date of notifying the defects.
These Rules also lay down that if the defects are not removed till 90 days from the date of communication of the defects, the matter shall be listed with Office Report on default before the Judge in Chambers for appropriate orders.
If there is more delay in removing defects, then the delay will have to be condoned by the regular bench of the Supreme Court, which generally consists of two judges.
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.
October 24, 2017 at 8:17 pm in reply to: Can IO challenge refusal of authority to grant sanction for prosecution? #3237Dr. Ashok DhamijaAdvocateFirstly, the IO can make further investigation on the issues on the basis of which the sanction for prosecution was refused, and send a fresh request for sanction on the basis of such fresh / further investigation, specifically pointing out how those issues were / are not relevant for refusal of sanction.
Secondly, sanction for prosecution can also be given by the higher authority, subject, of course, to the condition if there is any such higher authority available. Barring the Class-I or Group A officers, for other government servants, there may be generally be an authority higher than the sanctioning authority available (such as the Government itself).
Thirdly, generally, under the guidelines of the concerned Government, there may be a mechanism to resolve the issue of refusal of sanction between the sanctioning authority and the investigating authority. For example, in Central Government, the CVC (Central Vigilance Commission) may be approached by the CBI in cases of refusal of sanction for suitably advising the sanctioning authority (though it may not be legally binding on such authority, but then the authority may be questioned by his own superiors if it does not follow such advice).
Scope for challenging refusal of sanction in a court is generally very limited. I may point out that recently Allahabad high court has allowed challenge to refusal of sanction, though it is in a different type of 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.
October 24, 2017 at 7:42 pm in reply to: Cheque bouncing – jurisdiction where residence or bank lies? #3236Dr. Ashok DhamijaAdvocateThere is no other option before you. You can file an application for condonation of delay by giving all these reasons. Court has the power to condone delay under the Negotiable Instruments Act.
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 DhamijaAdvocateFor filing a criminal case against your uncle for the above loan transaction, you’ll have to prove that he had the dishonest intention since the beginning itself to cheat you, by inducing you to deliver the money to him as a loan on the false promise of selling his property if he was not able to repay the loan. His subsequent conduct of transferring his properties to his daughter by way of gift and then filing for insolvency to avoid creditors like you, may further substantiate your case.
Section 420 IPC is reproduced below:
“420. Cheating and dishonestly inducing delivery of property.—Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.”
Section 420 IPC is dependent on Section 415 IPC wherein the expression “cheating” is defined. Main part of Section 415 IPC is as under:
“415. Cheating.—Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to “cheat”. … …”.
There appear to be many lapses on your part. It is not generally advisable to give opinion on facts of a case without actually seeing the detailed facts. You may show your detailed facts to some local lawyer. Depending on the detailed facts of your case, it may perhaps be possible for you to file a case under Section 420 IPC against him.
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 note that an offence of cheque bounce under Section 138 of the Negotiable Instruments Act can be made out if the cheque was for the discharge, in whole or in part, of any debt or other liability (subject, of course, to other conditions mentioned in this section, such as issuing a notice, etc.).
From the facts mentioned in your case, it appears that the cheque was issued as compensation for the discharge of the liability arising out of death due to the negligence, etc. If this is so, then the cheque bounce can be filed after following the procedure mentioned in Section 138 of the above Act.
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 have not made it clear to which certificate of eligibility you are referring. Are you referring to the certificate which can be issued by the high court under Article 134-A of the Constitution for filing an appeal against its own order in the Supreme Court? Please make your question clear as to what exactly you are asking.
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 DhamijaAdvocateIt is not clear from your question as to in what stage the case is, but please remember that an order passed by the Debt Recovery Tribunal (DRT) can be challenged in appeal before the Debt Recovery Appellate Tribunal (DRAT). Likewise, if you are affected by an order passed by the Recovery Officer, then his order can be challenged before the DRT. In this regard, please see Section 20 and Section 30, respectively, of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993. In appropriate cases, it may be possible to get stay order.
In fact, the order of DRAT can also be further questioned before the High Court in a writ petition.
Consult a local lawyer with detailed facts of your 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.
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