[Dr. Ashok Dhamija]

Though you have mentioned that everyone has done illegal construction in your building, you have not specifically mentioned whether the gate that you had erected is also illegal or not.

You can approach the appropriate court for challenging the notice given to you by the concerned authorities for demolition of the gate and for getting stay against such proposed demolition. You may also point out that there are several other illegal constructions in your building and that the gate existed for 30 years, and also that action against illegal constructions should be taken without discrimination.

For detailed grounds to be taken, you may contact some local lawyer and show him all relevant records / documents / details since that requires a detailed study of the relevant facts.

     

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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]

Since offence under Section 498-A IPC is a cognizable offence, the police has the power to register the offence directly on the basis of the complaint without any counselling or without any preliminary enquiry. However, generally, the police may first try counselling in such matters, even though the power to directly register offence is available with police.

Investigation is after registration of the FIR and not before it. However, sometimes, there may be preliminary enquiry before FIR with the only objective to ascertain whether a cognizable offence is made out from the facts mentioned in the complaint. But, the proper and detailed investigation is to be conducted only after registration of FIR.

If there is evidence against your sister and uncle in the case registered by your wife, then of course, it may be a problem for them. If the police does not find evidence against them, they will not be charge-sheeted. At the same time, if you feel that there is no evidence against them, they can try for quashing of FIR qua them, or if the charge sheet is already filed then they can file a discharge application.

For the purposes of conviction, the court will believe the prosecution story only after proper evidence is led during trial stage to prove the charges. How to prove your side of the story? Well, that depends on detailed facts of your case on which I cannot make any comment. Please consult some local lawyer and show him all relevant details.

     

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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 it is not binding or mandatory for the accused person to appear personally as a defence witness in the case against him. He has an option not be appear as a defence witness. In fact, in most of the cases, the accused persons do not enter the witness box and do not themselves appear as witnesses. However, once an accused person decides to formally become a defence witness and enter the witness box, then the opposite party (i.e., the prosecution or complainant side) gets a right to cross-examine such accused person. So, the choice is that of the accused person himself.

Note that examination of a witness includes examination-in-chief, cross-examination and re-examination, if any. Examination of a witness is not complete without opportunity of cross-examination.

Also note that Evidence Act lays down that “Leading questions may be asked in cross-examination”. Any question suggesting the answer which the person putting it wishes or expects to receive, is called a leading question. Generally, leading questions result in answers such as “yes” or “no”.

So, if you as an accused person enter the witness box, you cannot completely avoid leading questions being asked during your cross-examination. At the same time, if you feel that a particular question cannot be answered by yes or no, and that the answer lies somewhere midway, then you can clarify the answer, and usually the court would take it on record that the witness volunteers to further say so-and-so, etc. So, even if the opposite side lawyer asks a leading question and repeatedly insists that you reply either in yes or in no, you can politely inform the court that the answer can be neither yes nor no but somewhere midway and try to explain. Usually, the court would take down the reply in the proper way.

Judge may not take action if you refuse to answer a question (even otherwise, you have a right of “silence” as an accused) but an adverse inference may perhaps be drawn in appropriate circumstances if you refuse to answer and remain silent.

     

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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 when a document is submitted in the court in evidence, it is marked as an Exhibit, with a regular Exhibit Number. This is read in evidence and will be considered at the time of analysing the evidence for arriving at a conclusion in the case.

The second term used by you “marked” may be specific to the area in which the court is situated. Other areas may have different terminology. From the description given by you (such as objection raised by the opposite side advocate due to which it was “marked”), it appears that “marked” is referring to those documents which you would have submitted in evidence, but due to objections raised by opposite party, it is yet not shown as a regular “Exhibit”; and its admissibility will be decided at a subsequent stage, may be at the stage of final arguments.

For example, I have seen a practice in the trial courts at Mumbai that if a particular document is given in evidence, it is generally marked as Exhibit with a specific number, such as “Ex. P-5” or “Ex. D-5” which may refer to the Prosecution or Defence document, respectively [in Delhi, it is generally shown, for example, as “Ex. PW 5/F”, etc.); on the other hand, if objections were raised in respect of a particular document introduced in evidence, then such document is not given a regular Exhibit Number. but is marked as “X”, which basically implies that its admissibility would be decided subsequently, may be at the final arguments stage.

     

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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 thought you had a specific problem in your own case. Otherwise, it is not possible to answer academic questions. This forum is to help needy people who are facing legal issues in their own actual cases, and not to answer academic queries. Time wasted on academic queries can better be utilized for helping some other needy person, as one does not have unlimited time.     

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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 Section 11 of the IPC defines “person” as under:

“The word “person” includes any Company or Association or body of persons, whether incorporated or not.”

Likewise, Section 3(42) of the General Clauses Act, 1897, also lays down that “person” shall include any company or association or body of individuals, whether incorporated or not.

In the case of Standard Chartered Bank v. Directorate of Enforcement, (2005) 4 SCC 530 : AIR 2005 SC 2622, a Constitution bench of the Supreme Court, by a majority of 3:2 has held that a company is liable to be prosecuted and punished for criminal offences. It was held that as regards corporate criminal liability, there is no doubt that a corporation or company could be prosecuted for any offence punishable under law, whether it is coming under the strict liability or under absolute liability.

In the case of Iridium India Telecom Ltd. v. Motorola Inc., (2011) 1 SCC 74 : AIR 2011 SC 20, the Supreme Court held as under:

“…virtually in all jurisdictions across the world governed by the rule of law, the companies and corporate houses can no longer claim immunity from criminal prosecution on the ground that they are incapable of possessing the necessary mens rea for the commission of criminal offences. The legal position in England and the United States has now crystallised to leave no manner of doubt that a corporation would be liable for crimes of intent.”

Supreme Court quoted the observations in 19 Corpus Juris Secundum, Para 1363as under:

“A corporation may be criminally liable for crimes which involve a specific element of intent as well for those which do not, and, although some crimes require such a personal, malicious intent, that a corporation is considered incapable of committing them, nevertheless, under the proper circumstances the criminal intent of its agent may be imputed to it so as to render it liable, the requisites of such imputation being essentially the same as those required to impute malice to corporations in civil actions.”

Thereafter, it was observed by the Supreme Court as under:

“The courts in England have emphatically rejected the notion that a body corporate could not commit a criminal offence which was an outcome of an act of will needing a particular state of mind. The aforesaid notion has been rejected by adopting the doctrine of attribution and imputation. In other words, the criminal intent of the “alter ego” of the company/body corporate i.e. the person or group of persons that guide the business of the company, would be imputed to the corporation.”

The Supreme Court concluded as under:

“…a corporation is virtually in the same position as any individual and may be convicted of common law as well as statutory offences including those requiring mens rea. The criminal liability of a corporation would arise when an offence is committed in relation to the business of the corporation by a person or body of persons in control of its affairs. In such circumstances, it would be necessary to ascertain that the degree and control of the person or body of persons is so intense that a corporation may be said to think and act through the person or the body of persons. The position of law on this issue in Canada is almost the same. Mens rea is attributed to corporations on the principle of “alter ego” of the company.”

So, the legal position should be clear from the above observations of the Supreme Court.

With regard to the other part of your question, regarding the power of a criminal court to deal with high value matters, please note that generally there are no monetary restrictions on the powers of a criminal court; their powers are generally on the basis of the punishment prescribed for an offence under law, and not the monetary limit.

     

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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]

Not possible to understand your question. You may write in Hindi if you have problem in English. Secondly, where is the question of stamp duty in criminal cases?     

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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 have not clarified whether the person concerned is governed by the Hindu laws or any other law. If the person concerned is governed by Hindu law, then whether it is a Joint Hindu Family property or otherwise acquired through inheritance. Please give proper details.     

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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 the description given by you, it appears that it was a contributory act from both sides. So, you can also lodge the FIR under Section 279, 337 IPC. Otherwise, it would appear as if it was a negligent act only from your side.

Also please note that if the opposite party has got his finger fractured, then it may also be an offence under Section 338 IPC, which is more severe offence than Section 337 IPC.

You can try to obtain CCTV footage, if any available, to buttress your version of the accident. Also try to get other evidence collected, such eye-witness accounts of passers-by at the time of the accident. This may help you if police refuse to register your FIR and if you have to file a private complaint directly in 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]

Widow of a Hindu male person who died intestate is a Class I legal heir. On the other hand, sisters are Class II legal heirs of such persons.

If one or more Class I heir is/are alive then such Class I legal heir or heirs will get share in the property of such Hindu male dying intestate, to the exclusion of the Class II heirs.

Also note that you have mentioned that divorce petition filed by the wife of your brother is still pending, which means that the decree of divorce was yet to be passed. In view of this, wife of your brother is the only surviving Class I heir and she will be legally entitled to all property of your brother, to the exclusion of the sisters who are only Class II heirs. Sisters will not get any share in the property of the brother who has died intestate [in the absence of any will to the contrary].

Also note that nomination is not equivalent to will in respect of a property. A nominee is generally supposed to receive money as a “trustee” on behalf of the persons entitled thereto.

You have not clarified as to your brother’s PF was under which legal provisions. It appears to be under the Employees’ Provident Fund Act, 1952, though I am not sure (you have to check it). If it is so, then under the relevant Employees’ Provident Fund Scheme, 1952, if a member has a family at the time of making a nomination, the nomination shall be in favour of one or more persons belonging to his family. Any nomination made by such member in favour of a person not belonging to his family shall be invalid. Further, a fresh nomination shall be made by the member on his marriage and any nomination made before such marriage shall be deemed to be invalid. Now, under this Scheme, in the case of a male member, family means his wife, his children, whether married or unmarried, his dependant parents and his deceased son’s widow and children [Provided that if a member proves that his wife has ceased, under the personal law governing him or the customary law of the community to which the spouses belong, to be entitled to maintenance she shall no longer be deemed to be a part of the member’s family for the purpose of this Scheme, unless the member subsequently intimates by express notice in writing to the Commissioner that she shall continue to be so regarded].

If the above PF Scheme was applicable to your brother, then the sisters will not be part of the “family” as defined under the said Scheme, and therefore, any nomination made in favour of the sisters, while the wife was alive, would be invalid.

However, if the PF of your brother was governed by some other PF Rules, then you’ll have to check the relevant rules.

     

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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 the amended provisions of the Negotiable Instruments Act, the territorial jurisdiction for a cheque bounce case is at the place where the branch of the bank is situated in which the payee maintains his account. Since you account is in Connaught Place, New Delhi (even though you may be operating it from Ghaziabad), the jurisdiction would be in the court where your Connaught Place bank branch is situated.

But, if your bank account itself has been transferred to the Ghaziabad branch of SBI, then of course, it is a different thing.

     

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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, you should provide the correct details in the attestation form for the police verification made at the time of joining government job. Mention that your name was shown in FIR but it was not shown in the charge sheet. Also mention whether you were arrested or not. If the attestation form is yet to be submitted, then also correctly mention about the fresh application filed by the opposite parties in the court for inclusion of your name as an accused after a gap of 4 years, or as the case may be, if you have been summoned. All such relevant and correct information should be provided in the columns meant for this purpose.

Secondly, as regards the application filed in court for including your name as an accused person, you’ll have to fight it on merits. If you are called upon by the court to explain / defend in the matter, you may show all circumstances, including the fact that you were not on the spot, that you were not charge sheeted and that the application has been filed now after 4 years to make you accused after knowing about your Delhi Police selection as Sub-Inspector of Police. Show all other relevant circumstances in your defence. If the court still orders inclusion of your name as an accused, you have the option of challenging such decision in the higher court. It would be advisable if you can show all your documents to some local lawyer and obtain his proper advice based on the relevant case papers.

     

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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]

Subsistence allowance is paid during the period of suspension. It depends on the rules of the concerned Government or organisation. But, you have not clarified under which Government or organisation you work. However, generally, subsistence allowance is initially paid at the rate of 50% of the pay.

You’ll get salary for the period during which you were on duty. And, for period during suspension, you’ll subsistence allowance. For actual calculation, contact the accounts department of your organisation.

     

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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 really feel security risk while visiting Ujjain, you may file a transfer petition in the high court or Supreme Court for transfer of the case to some other place (if it is for outside state transfer, you may have to approach the Supreme Court). If you can convince the court, the case may be transferred to some other place, or else some security may be provided to you.

However, in the absence of transfer of case being ordered, you have no option but to appear in the court at Ujjain if you are summoned to appear there. You can also file an application for quashing of the proceedings (in high court) or discharge application (in trial court), depending upon the nature and stage of the case against you. All the relevant facts mentioned by you in your question may be shown to the court in such 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]

The best legal way out is to urgently mention the SLP filed by you in the Supreme Court, and obtain stay order against the execution petition for implementing the high court order on alimony. This will completely protect you from any adverse order in the execution petition during the pendency of the SLP.

However, if that is not possible, then the second best option, of course, is to convince the family court to keep in abeyance the execution petition on the ground that your have filed the SLP against the high court. You have already shown the Diary No. of SLP to the family court. You can also point out to the family court that right now, the Supreme Court is closed for Dussehra vacation and will reopen only on 3^rd October, 2017. Generally speaking, in these circumstances, the family court would wait for a reasonable period of time before passing an adverse order in the execution petition, though it is not legally binding on family court in the absence of a specific stay order from the Supreme Court. In the meanwhile, you should try to remove defects in the SLP filing, if any, and get a regular SLP No. and then get it listed before the SC to get a specific stay 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.

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