[Dr. Ashok Dhamija]

Please check whether the SLP has been filed in the Supreme Court against the same order of the high court, in respect of which you have filed the caveat. For example, in the SLP referred to by you, there appear to be 26 cases in which order of the high court is passed (appears to be a common order) which are mentioned in the “Earlier Court Details” column; but, it appears that SLP challenges order only in 2 such cases. So, check whether your case number is included in the list of cases in which order is challenged in the SLP. Match these details. Also check whether you are a necessary party in such SLP.

If you still find that your details match and your caveat was wrongly ignored, you may have to check from the registry of Supreme Court or ask your Advocate on Record to check from the registry. Usually, there has to be some reason, such as the case number not matching, etc., due to which your caveat might not have been considered. Only the registry can tell you the exact reason.

If you don’t want to take a chance, you can file another caveat with proper case number details, as in any case a fresh caveat may have to be filed after 90 days. A caveat filed even after the filing of SLP is also considered by the Supreme Court, if it is related to that SLP.

     

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

[Dr. Ashok Dhamija]

You can peruse Section 141 of the NI Act itself. There too, definition of company may include a firm (which implies partnership firm) but not a proprietorship concern. Therefore, there may not be a need to name the proprietorship separately as is required in the case of a company or partnership firm. Search judgments on Section 141 on Google also using the word proprietor, you may get some indirect judgments on this issue, mostly from high courts.     

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

[Dr. Ashok Dhamija]

Even though there is a clause for imprisonment in a cheque bounce case and it is an offence, it is tried by the private party concerned and NOT by the State. Regular IPC offences are tried by the State at its own expenses and investigation is conducted by police. In a cheque bounce case, that is not the situation. Here the prosecution is conducted by the private person himself and there is no FIR or investigation or charge sheet by police.

That said, once NBW is issued by court even in a cheque bounce, police has to comply with that. In most cases, police does that. But, as I said, it is not possible sometimes to execute the NBW due to various genuine reasons, though sometimes it may be due to involvement of police too. Even in regular offences like murder, sometimes NBW cannot be served if the accused absconds. If you have evidence that accused is available but police is deliberately avoiding to execute the NBW, you can collect such evidence (such as video recording of accused with location identification and date confirmation by including date/time in video) and show it to court.

In a private case, it is your responsibility as complainant to give correct / updated address of accused to the court. Police may assist on court’s orders to locate the accused, but it is your responsibility too as it is a private complaint case. And, if accused is ultimately untraceable, it is your case which may suffer.

Surety’s responsibility is generally up to the forfeiture of the bail bond. If he cannot ensure presence of accused in court, his bail bond may be forfeited.

     

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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]

I don’t understand what you mean by bailor. But, if it refers to the surety, i.e., the person who had stood as a surety and given a bail bond for the bail of the accused, then you can apply for forfeiture / cancellation of the bail bond executed by him under the provisions of the Cr.P.C.

The court can call the police officer concerned and question him if the NBW addressed to him has not been served despite several efforts and if the court is convinced that it is not being served deliberately by police. However, it is not always necessary that the NBW has not been served by police deliberately; sometimes, there may be genuine reasons, such as non-availability of the accused, his shifting to some new address which is not known, he having absconded, etc. Action may not be possible against the police officer if there is some genuine reason for the NBW being not served.

Since cheque bounce case is a private complaint case, as complainant, you should provide the court with the proper and latest address of the accused if the police is not able to locate him.

Thirdly, if the NBW is not getting served, you can try to get the accused declared as a “proclaimed offender” by following the steps detailed in the Cr.P.C. for this purpose, and for attachment of his property.

     

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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 a well established principle in law that a proprietorship concern (i.e., having a sole proprietor) and its proprietor are one and the same person. The proprietorship concern has no separate legal existence apart from its proprietor.

Therefore, in my considered view, it should be sufficient to make only the proprietor as the accused. Accused can perhaps be described in the complaint as “Mr. ABC, proprietor of M/s XYZ”.

Here Mr. ABC is the proprietor and M/s XYZ is the name of his proprietorship concern.

I am of the opinion that there may not be a need to make the proprietorship concern as a separate accused.

     

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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]

 

If the application for anticipatory bail has been rejected by the high court, then you can approach the Supreme Court for grant of the same by filing SLP before it. If the Supreme Court is convinced about the falsity of the FIR or otherwise convinced that it is a fit case to be granted anticipatory bail, it may order the same.

If you are so advised, you can try to file a petition before the high court for quashing of the FIR, if no case is made out against you or your family members. However, generally, the chances of getting the FIR quashed at the preliminary stage are less. But, it depends on the facts of each case.

Removal of the names of some specific accused persons from the FIR can also be possible by filing a petition before the high court for quashing the FIR qua those accused persons. But, as I mentioned above, generally such petitions do not succeed.

Yet another method would be to provide the relevant evidence to the police officer investigating the case to prove innocence of the accused persons concerned or to show the falsehood of the FIR. If the investigating officer is convinced, he can file closure report in the case or drop the names of those accused persons from the charge sheet against whom there is no evidence to file charge sheet.

     

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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]

Firstly, please note that a private bank may not be covered under the Right to Information Act. So, it may not be possible to get RTI information from a private bank.

Secondly, as per Section 8(1)(e) of the RTI Act, information available to a person in his fiduciary relationship may not be shared under RTI Act, unless the competent authority is satisfied that the larger public interest warrants the disclosure of such information. Information about the details of a bank account may perhaps be covered under this provision because the bank holds information about the account of a person in fiduciary relationship.

Therefore, there are little chances that you would get information about the bank account of another person and that too from a private bank. Still, you can try it.

However, what I would suggest is to use the provisions of Section 91 Cr.P.C. for this purpose. If the information required by you relates to the defence of your case or for prosecution of your case pending in the court, then you can make an application before the court under Section 91 Cr.P.C., i.e., the court in which the case is pending during trial, to give a direction to the opposite party or to the bank to produce the relevant account details of the person concerned. If the court is convinced, you may get the relevant information through the court order under this section.

     

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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]

If you succeed in your cheque bounce case, then normally you are awarded compensation corresponding to the cheque amount. This obviates the need to file a civil case to recover the money.

Therefore, if all the five cheques are in their validity period and you feel that the party is not paying you the amount that is due to you, and also if there is no restriction in your agreement about when you can present those cheques to the bank, then you can deposit all those cheques in the bank so that you can pursue those cheque bounce cases and recover the full amount by way of compensation in the event of the cheques being dishonoured.

     

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

[Dr. Ashok Dhamija]

Usually, if you are the complainant in the FIR, the police may give you broad or general idea of the developments in the investigation; this may be without going into specifics.

However, if the police is refusing to divulge information to you about the progress in the investigation, even though you are the complainant in the case, then it may be due to the sensitive nature of the information. In such a situation, it may not be possible for you to get such information even through an RTI application.

Section 8(1)(h) of the Right to Information Act clearly lays down that there shall be no obligation to give to any citizen, “information which would impede the process of investigation or apprehension or prosecution of offenders”.

Therefore, information relating to developments in an investigation being conducted by police is protected under the RTI. Police may refuse to divulge such information to you even under the RTI application.

     

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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]

Recently, I have replied in another question (Can a Hindu be married to two women simultaneously, with both agreeing to this?) that a Hindu man cannot have two wives at the same time. This reply applies to men from other communities also, except where polygamy is allowed, such as in Muslim religion.

Now, as per your question, your friend is already married. Therefore, during the validity of the first marriage, he cannot marry the girl, as such second marriage would be null and void. However, if the first marriage has come to an end (such as by way of divorce) then the second marriage would be possible.

To another question (Is a live-in relationship legal in India?), I have replied that two unmarried and adult persons can have live-in relationship and there appears to be no law to prohibit them. However, if one of the persons is already married, then the live-in relationship may have legal complications and is not advisable.

     

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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]

Firstly, please understand that a limitation period for an offence is applicable only if the offence is punishable with imprisonment of a maximum of 3 years. No limitation period is laid down for offences where the maximum punishment can be more than 3 years’ imprisonment. This is quite clear from the language of Section 468 of the Criminal Procedure Code. However, I may point out that offences under certain Acts as mentioned in the Economic Offences (Inapplicability of Limitation) Act, 1974, are not governed by the aforesaid limitation period.

Secondly, this Section further lays down that “Except as otherwise provided elsewhere in this Code”, no Court shall take cognizance of an offence after the expiry of the period of limitation.

So, generally speaking, if a limitation period has been prescribed for an offence, then the court cannot take cognizance of such offence after the expiry of the limitation period. Therefore, generally speaking, no action would be taken in respect of report of an offence which is given after expiry of the limitation period for that offence, if any.

Here, I may point out that in the case of Sarah Mathew v. Institute of Cardio Vascular Diseases, (2014) 2 SCC 62, the Supreme Court has held that the date relevant for computation of period of limitation is the date when criminal complaint is filed or date of institution of prosecution/criminal proceedings, and not the date when a court/Magistrate takes cognizance.

I may also point out that Section 473 of the Cr.P.C. permits any Court to take cognizance of an offence even 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.

Thus, while generally speaking no action would be taken on the report of an offence which is given after expiry of limitation period for that offence, if any, in exceptional situations, the court has the power to take cognizance of such report even after expiry of limitation period subject to above conditions.

     

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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]

Driving by a drunken person is dealt with in Section 185 of the Motor Vehicles Act, 1988. As per this legal provision, if a person drives or attempts to drive a vehicle while he has alcohol in his blood, exceeding 30 mg. per 100 ml. of blood, which is detected in a test by a breath analyser, then he is liable for punishment for the offence of drunken driving. The punishment is up to 6 months’ imprisonment and/or fine up to ₹ 2000 for the first offence. If he commits a similar offence within 3 years of the first such offence, then the punishment can be up to 2 years of imprisonment and/or fine of up to ₹ 3000.

Moreover, Section 22(2) of this Act provides that at the time of second conviction for the offence of drunken driving under Section 185, the court shall order cancellation of the driving licence of such person.

Section 185 is reproduced below for a ready reference:

“185. Driving by a drunken person or by a person under the influence of drugs.—Whoever, while driving, or attempting to drive, a motor vehicle,—

(a) has, in his blood, alcohol exceeding 30 mg. per 100 ml. of blood detected in a test by a breath analyser, or

(b) is under the influence of a drug to such an extent as to be incapable of exercising proper control over the vehicle,

shall be punishable for the first offence with imprisonment for a term which may extend to six months, or with fine which may extend to two thousand rupees, or with both; and for a second or subsequent offence, if committed within three years of the commission of the previous similar offence, with imprisonment for a term which may extend to two years, or with fine which may extend to three thousand rupees, or with both.

Explanation.—For the purposes of this section, the drug or drugs specified by the Central Government in this behalf, by notification in the Official Gazette, shall be deemed to render a person incapable of exercising proper control over a motor vehicle.”

 

     

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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]

As per Section 5 of the Hindu Marriage Act, 1955, one of the main conditions for a marriage to be solemnized between two Hindus is that neither party has a spouse living at the time of the marriage.

Further, it is laid down in Section 11 of the said Act that if a marriage is solemnized in violation of the above condition, then such marriage shall be null and void. This means that such marriage shall be completely invalid in the eyes of the law.

Thus, if a Hindu man wants to be married to two women simultaneously (i.e., at the same time), then that implies that when he marries the second woman, at that time he already has a spouse living. This implies that his second marriage would be in violation of Section 5, and thus, this second marriage would be null and void.

Therefore, in law, it is not possible for a Hindu to be married to two women simultaneously, even if both women willingly agree to this arrangement. The second such marriage will be null and void in the eyes of law.

     

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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]

A screenshot in a mobile phone, if relevant to the case, can be considered a valid piece of evidence in India. It is a form of electronic evidence. It can be proved either by producing the original device in which it was recorded, or by producing evidence as per Section 65-B of the Evidence Act.

How much reliable will such evidence be and how much weight be attached to such evidence by the courts will depend on how accurate and genuine such evidence is. But, it can definitely be admissible in a court of law if relevant to the case.

In this regard, you may also watch my following YouTube video on a related topic: Is Call Recorded in a Mobile Phone Admissible in Court as Evidence?

     

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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]

If two adult and unmarried persons live together willingly as a part of a live-in relationship, then it is not prohibited in any law in India. As per my understanding, there is no law in India that makes such relationship illegal.

Of course, the society may consider it to be immoral and unethical, but it may not be illegal under laws. Further, if one of them is already married, then there may be some legal complications. But, if two unmarried persons who are adult, live together willingly as a part of a live-in relationship, then it is not prohibited in any law.

In fact, such live-in relationship has been directly or indirectly recognized in some laws. For example, in Section 2(f) of the Protection of Women from Domestic Violence Act, 2005, there is an indirect reference to live-in relationship being covered under the definition of “domestic relationship”:

“(f) “domestic relationship” means a relationship between two persons who live or have, at any point of time, lived together in a shared household, when they are related by consanguinity, marriage or through a relationship in the nature of marriage, adoption or are family members living together as a joint family;”

Here, the expression “a relationship in the nature of marriage” indirectly refers to a live-in relationship. In fact, in the case of D. Velusamy v. D. Patchaiammal, (2010) 10 SCC 469, the Supreme Court interpreted the above expression to include a live-in relationship subject to certain conditions.

In this case, the Supreme Court held that “relationship in the nature of marriage”, is akin to a common law marriage which inter alia requires that the parties must have voluntarily cohabited and held themselves out to the world as being akin to spouses for a significant period of time. The parties should also have a “shared household” as defined in Section 2(s). Merely spending weekends or one night together does not constitute “domestic relationship” under Section 2(f). It was further held that not all live-in relationships form a relationship “in the nature of marriage” because several parameters have to be satisfied in order to constitute relationship in the nature of marriage.

In the case of Chanmuniya v. Virendra Kumar Singh Kushwaha, (2011) 1 SCC 141, a 2-judge the Supreme Court felt that a broad and expansive interpretation should be given to the term “wife” in Section 125 of Cr.P.C. to include even those cases where a man and woman have been living together as husband and wife for a reasonably long period of time, and strict proof of marriage should not be a precondition for maintenance under Section 125 Cr.P.C., so as to fulfil the true spirit and essence of the beneficial provision of maintenance under Section 125, and the Supreme Court referred this issue to be decided by a larger bench of the court. As far as I understand, this issue is still pending before a larger bench of the Supreme Court.

Thus, there appears to be no legal prohibition in Indian laws for two adult and unmarried persons living together willingly as a part of a live-in relationship.

     

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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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