[Dr. Ashok Dhamija]

See Sections 91, 92 of the Evidence Act and other related provisions:

“91. Evidence of terms of contracts, grants and other dispositions of property reduced to form of document.—When the terms of a contract, or of a grant, or of any other disposition of property, have been reduced to the form of a document, and in all cases in which any matter is required by law to be reduced to the form of a document, no evidence¹ shall be given in proof of the terms of such contract, grant or other disposition of property, or of such matter, except the document itself, or secondary evidence of its contents in cases in which secondary evidence is admissible under the provisions hereinbefore contained.

Exception 1.—When a public officer is required by law to be appointed in writing, and when it is shown that any particular person has acted as such officer, the writing by which he is appointed need not be proved.

Exception 2.—Wills ²[admitted to probate in ³[India]] may be proved by the probate.

Explanation 1.—This section applies equally to cases in which the contracts, grants or dispositions of property referred to are contained in one document, and to cases in which they are contained in more documents than one.

Explanation 2.—Where there are more originals than one, one original only need be proved.

Explanation 3.—The statement, in any document whatever, of a fact other than the facts referred to in this section, shall not preclude the admission of oral evidence as to the same fact.

Illustrations

(a) If a contract be contained in several letters, all the letters in which it is contained must be proved.

(b) If a contract is contained in a bill of exchange, the bill of exchange must be proved.

(c) If a bill of exchange is drawn in a set of three, one only need be proved.

(d) A contracts, in writing, with B, for the delivery of indigo upon certain terms. The contract mentions the fact that B had paid A the price of other indigo contracted for verbally on another occasion.

Oral evidence is offered that no payment was made for the other indigo. The evidence is admissible.

(e) A gives B a receipt for money paid by B.

Oral evidence is offered of the payment. The evidence is admissible.”

“92. Exclusion of evidence of oral agreement.—When the terms of any such contract, grant or other disposition of property, or any matter required by law to be reduced to the form of a document, have been proved according to the last section, no evidence of any oral agreement or statement shall be admitted, as between the parties to any such instrument or their representatives in interest, for the purpose of contradicting, varying, adding to, or subtracting from, its terms:

Proviso (1).—Any fact may be proved which would invalidate any document, or which would entitle any person to any decree or order relating thereto; such as fraud, intimidation, illegality, want of due execution, want of capacity in any contracting party, ¹[want or failure] of consideration, or mistake in fact or law.

Proviso (2).—The existence of any separate oral agreement as to any matter on which a document is silent, and which is not inconsistent with its terms, may be proved. In considering whether or not this proviso applies, the Court shall have regard to the degree of formality of the document.

Proviso (3).—The existence of any separate oral agreement, constituting a condition precedent to the attaching of any obligation under any such contract, grant or disposition of property, may be proved.

Proviso (4).—The existence of any distinct subsequent oral agreement to rescind or modify any such contract, grant or disposition of property, may be proved, except in cases in which such contract, grant or disposition of property is by law required to be in writing, or has been registered according to the law in force for the time being as to the registration of documents.

Proviso (5).—Any usage or custom by which incidents not expressly mentioned in any contract are usually annexed to contracts of that description, may be proved:

Provided that the annexing of such incident would not be repugnant to, or inconsistent with, the express terms of the contract.

Proviso (6).—Any fact may be proved which shows in what manner the language of a document is related to existing facts.

Illustrations

(a) A policy of insurance is effected on goods “in ships from Calcutta to London”. The goods are shipped in a particular ship which is lost. The fact that that particular ship was orally excepted from the policy, cannot be proved.

(b) A agrees absolutely in writing to pay B Rs 1000 on the 1st March, 1873. The fact that, at the same time, an oral agreement was made that the money should not be paid till the thirty-first March, cannot be proved.

(c) An estate called “the Rampur tea estate” is sold by a deed which contains a map of the property sold. The fact that land not included in the map had always been regarded as part of the estate and was meant to pass by the deed, cannot be proved.

(d) A enters into a written contract with B to work certain mines, the property of B, upon certain terms. A was induced to do so by a misrepresentation of B‘s as to their value. This fact may be proved.

(e) A institutes a suit against B for the specific performance of a contract, and also prays that the contract may be reformed as to one of its provisions, as that provision was inserted in it by mistake. A may prove that such a mistake was made as would by law entitle him to have the contract reformed.

(f) A orders goods of B by a letter in which nothing is said as to the time of payment, and accepts the goods on delivery. B sues A for the price. A may show that the goods were supplied on credit for a term still unexpired.

(g) A sells B a horse and verbally warrants him sound. A gives B a paper in these words “Bought of A a horse for Rs 500”. B may prove the verbal warranty.

(h) A hires lodgings of B, and gives B a card on which is written—“Rooms, Rs 200 a month”. A may prove a verbal agreement that these terms were to include partial board.

A hires lodgings of B for a year, and a regularly stamped agreement, drawn up by an attorney, is made between them. It is silent on the subject of board. A may not prove that board was included in the terms verbally.

(i) A applies to B for a debt due to A by sending a receipt for the money. B keeps the receipt and does not send the money. In a suit for the amount, A may prove this.

(j) A and B make a contract in writing to take effect upon the happening of a certain contingency. The writing is left with B, who sues A upon it. A may show the circumstances under which it was delivered.”

Also, keep in mind that such a document (where the less valuation is shown in document) may be invalid due to the fact that it is not duly stamped. In this regard, read:

• Validity of agreement or document which is not duly stamped

Further, receiving part of the sale amount in cash and not showing it in registered document may be Income Tax evasion and may be dealt with under the Income Tax Act accordingly.

     

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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]

Similar questions have been replied by me earlier. Please read this, for example:

• Punishment for false affidavit in court and procedure therefor

Also search 340 or search perjury on this website, you’ll get many other replies on similar questions.

     

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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 have not engaged any lawyer for your case, then read the provisions of Order 9 of the CPC which relate to “Appearance of Parties and Consequence of Non-appearance”. When conditions mentioned for ex parte hearing are satisfied, the court will order an ex parte hearing. In particular, Rule 6 of Order 9 is relevant:

“6. Procedure when only plaintiff appears.— (1) Where the plaintiff appears and the defendant does not appear when the suit is called on for hearing, then—

(a) When summons duly served.— If it is proved that the summons was duly served, the Court may make an order that the suit be heard ex parte;

(b) When summons not duly served.— If it is not proved that the summons was duly served, the Court shall direct a second summons to be issued and served on the defendant;

(c) When summons served but not in due time.— If it is proved that the summons was served on the defendant, but not in sufficient time to enable him to appear and answer on the day fixed in the summons, the Court shall postpone the hearing of the suit to a future day to be fixed by the Court, and shall direct notice of such day to be given to the defendant.

(2) Where it is owing to the plaintiff’s default that the summons was not duly served or was not served in sufficient time, the Court shall order the plaintiff to pay the costs occasioned by the postponement.”

Since you have mentioned that one defendant appeared but has not filed written statement, the relevant legal provision is Order 8 Rule 11 of CPC:

“10. Procedure when party fails to present written statement called for by Court.— Where any party from whom a written statement is required under Rule 1 or Rule 9 fails to present the same within the time permitted or fixed by the Court, as the case may be, the Court shall pronounce judgment against him, or make such order in relation to the suit as it thinks fit and on the pronouncement of such judgment a decree shall be drawn up.”

 

     

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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]

After issuing legal notice to the drawer of the cheque, as required under Section 138 of the Negotiable Instruments Act, you can file a case of cheque bounce by following the procedure laid down in the said legal provision.

Section 32 of the Central GST Act lays down as under:

“32. Prohibition of unauthorised collection of tax. – (1) A person who is not a registered person shall not collect in respect of any supply of goods or services or both any amount by way of tax under this Act.

(2) No registered person shall collect tax except in accordance with the provisions of this Act or the rules made thereunder.”

So, it is not permissible to collect GST without getting registration under the same.

You may also confirm from the Registrar of Companies of the state concerned and file a complaint with them, if needed.

     

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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 have not clarified in which state or place the offence took place. This is so because unlike other offences under IPC, offence under Section 506 IPC is treated differently in different states. In most states, it is non-cognizable and bailable, while in some states (and/or cities), it is cognizable and non-bailable. For more details, read:

• Section 506 IPC – whether bailable or non-bailable?

In any case, if the FIR registered is only under Section 506 IPC, as you have mentioned, then it should be at a place where Section 506 IPC is cognizable and non-bailable, since it is not possible to register FIR in a non-cognizable offence alone.

Secondly, irrespective of whether an offence is bailable or non-bailable, it is not binding on the police to arrest the accused. While the police may have power to arrest the accused in certain cases, it is not mandatory that even in every such case the accused must always be arrested. Power to arrest is one thing and exercising such power to actually arrest accused is quite a different thing. In fact, there are judgments of Supreme Court requiring that arrest should be made by police only if it is necessary and that unnecessary arrests should be avoided.

So, it is not necessary that the police should arrest accused in every case. Police has the power to charge sheet an accused without arresting him.

     

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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 clear from your question whether your lawyer was also absent when you were not present in court at the time when the opportunity to cross-examine the complainant was closed by the court of the Metropolitan Magistrate. In fact, it is not clear whether you are appearing in person or are represented by an advocate.

In any case, please note that an order rejecting application under Section 311 Cr.P.C. for recall of a witness is an interlocutory order. In view of this, no revision would be possible before the Sessions Court or High Court under Section 397 of the Criminal Procedure Code against such interlocutory order. There is no appeal also against such order.

Therefore, your only remedy would be to file an application under Section 482 of the Cr.P.C. before the high court to challenge the order passed by the Magistrate court rejecting your application under Section 311 of Cr.P.C. for recall of complainant for cross-examination.

     

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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 done a good job by giving information to the police control room at 100 phone number about the fight taking place on the road. Nowadays, many people avoid getting involved in such matters and avoid giving information to police about such incidents. So, you must be appreciated for the good job done by you.

But, having done a good job of informing the police, now you should not be scared of giving a statement to police about whatever you saw. You should not be scared of going to police station, since you would be going there to give your statement as a witness and not as an accused person. At the same time, if you request the police, they may visit your place for recording your statement. During your statement, you may state whatever has been observed by you when the fight was going on. If you can identify the accused persons, you may do so.

In this regard, please note that under Section 160 of the Criminal Procedure Code, police officer investigating a cognizable offence has the power to require the attendance of a witness before him for the purpose of his examination:

“160. Police officer’s power to require attendance of witnesses.— (1) Any police officer making an investigation under this Chapter may, by order in writing, require the attendance before himself of any person being within the limits of his own or any adjoining station who, from the information given or otherwise, appears to be acquainted with the facts and circumstances of the case; and such person shall attend as so required:

Provided that no male person under the age of fifteen years or above the age of sixty-five years or a woman or a mentally or physically disabled person shall be required to attend at any place other than the place in which such male person or woman resides.

(2) The State Government may, by rules made in this behalf, provide for the payment by the police officer of the reasonable expenses of every person, attending under sub-section (1) at any place other than his residence.”

 

     

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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 approach the Anti-Corruption Bureau (ACB) or Vigilance Police [or CBI, if you are an accused in a case filed by CBI] of your state and lodge a complaint against the Public Prosecutor who is demanding bribe from you to favour you. On the basis of your complaint, the ACB will lay a trap to catch the culprit red-handed while demanding and accepting bribe. Taking bribe is an offence under the Prevention of Corruption Act, 1988.

You can easily get information about the contract numbers of the ACB officers in your state from their website by searching on Google.

     

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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]

There is no hard and fast rule as to how much time would be taken by the expert to examine the signature / handwriting. It depends on the level of pendency with that particular forensic science laboratory where it has been sent for examination, and the number of experts available in that laboratory. A period of 6 months is not unusual for the experts to give their opinion on handwriting or signatures, since generally they have a lot of pendency.

Once the handwriting expert has given his opinion of verifying the genuineness of the signature during the investigation stage, during trial it will be subjected to scrutiny and evidence will be recorded in this regard during trial. Likewise, in the civil case also, there may be a separate evidence recording with regard to the signature forgery. Civil and criminal cases are different and are supposed to be conducted independently and separately.

     

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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]

Yes. One can get bail during trial, but it depends on nature and seriousness of the case and also other facts and circumstances of each case which are considered for this purpose. There are millions of cases in which bail is granted during trial.

Prima facie may imply “based on the first impression; accepted as correct until proved otherwise”. With regard to a criminal case, prima facie may imply what appears on the basis of the prosecution evidence if it is accepted as true, without considering the defence at that 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]

You should not worry about summoning the complainant for questioning during the trial. It is the prosecution which has first to prove its case. Complainant is usually one of the first few witnesses (if not the first one) to be called to prove its case. So, as soon as the charges are framed and prosecution evidence starts, complainant will be called to the witness box sooner or later, and will be examined, and it is at that time that you’ll get ample time to cross-examine him.

     

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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 provisions of Section 36 of the Criminal Procedure Code, Police Officers superior in rank to an officer in charge of a police station may exercise the same powers, throughout the local area to which they are appointed, as may be exercised by such officer within the limits of his station. Therefore, the Superintendent of Police of a district has the same legal powers with regard to investigation of an offence as the officer in charge of a police station (SHO) has.

The power of the SP to give directions to the investigating officer is generally contained in the relevant rules, regulations, police manual, etc., of the State concerned, framed under legal provisions. If lawful directions in writing are given by the SP to the investigating officer, and if the latter does not obey them, he may be subjected to disciplinary action for violation of such directions. It is very rare that a subordinate officer would disobey lawful directions given in writing by a senior officer, and even such rare violation may be subject to disciplinary action.

The court will go by the charge sheet which is filed by the investigating officer before it. It is the duty of the investigating officer to comply with the directions of the senior officers. The court takes cognizance on the basis of the charge sheet submitted by the I.O.

Of course, if the SP feels that the I.O. is doing mischief and not filing charge sheet correctly, he may change the I.O. and the other I.O. may then do the needful.

For quashing the FIR, you can approach the high court under Section 482 of the Cr.P.C. at any time after registration of FIR and before filing of the charge sheet. If the charge sheet is already filed, there is no point in going for quashing of FIR before high court; instead file a discharge petition before the trial court.

About the RTI query, you have yourself partly replied the question. Ask whatever relevant information you want to get. It is not possible for us to reply on detailed questions of facts.

We can try to answer your general legal questions. It is not possible to answer what defences can be taken, since it involves detailed study of all relevant papers which is not within the scope of this website. Please consult some lawyer at your place.

     

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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 arrest under Section 151 Cr.P.C. is not for having committed any offence, but for preventing the commission of a cognizable offence in the near future. So, it is only a preventive arrest.

Secondly, under Section 107 Cr.P.C., there is no power to arrest. It is for executing a bond for keeping peace in near future when the person concerned is likely to cause a breach of peace or disturb public tranquillity. So, this is also not for an specific offence already committed, but a sort of preventive action.

Generally speaking, action under Section 107 / 151 Cr.P.C. should not come in the way of getting a Government job, though it is ultimately for the authority concerned to take a decision based on facts of the case.

You have been arrested (under Section 151 Cr.P.C.), so put “yes”.

Since this is not a conviction for an offence, put “no” (presuming that there is no other offence against you).

You have to ask the police / court whether the complaint filed by your father is still alive or has been disposed of. I have no access to police records to tell this type of information to you.

Maintain good and cordial relations with your relatives. Otherwise, how can you stop any person from filing a complaint, and that too a false one?

If the police have not taken any concrete action on your complaint and if you have sufficient evidence, you can file a private complaint against your relatives for the offences committed by them. It is your call whether you should stand against them or compromise with them. You are the best judge of your facts. Of course, if you file complaints against them, they may also pay back in kind. So, try to find an amicable solution, if possible. But, ultimately it is your call.

     

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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 name of an accused has been added through Section 319 of Criminal Procedure Code, then that would imply that charge sheet has been filed and/or cognizance of the offence has been taken by the court and the trial or inquiry is in process in court.

The question, whether under S. 438 of Cr.P.C. 1973, the High Court or the Sessions Court has power to grant anticipatory bail to a person after filing of the charge sheet, or after the competent criminal Court has taken cognizance of the case and/or has issued process, viz. warrant for arrest of that person, has attracted the attention of the Courts from time to time and diverse views have been expressed on this issue. However, the judicial opinion is more in favour of the view that anticipatory bail can be granted even at a stage when the charge sheet has already been filed or cognizance of the case has already been taken by the Court.

In Bharat Chaudhary v. State of Bihar, (2003) 8 SCC 77 : AIR 2003 SC 4662, it was held by the Supreme Court that there is no restriction in Section 438 of Cr.P.C. in regard to exercise of the power of granting anticipatory bail in a suitable case either by the Court of Session, High Court or the Supreme Court even when cognizance is taken or a charge-sheet is filed. The object of Section 438 is to prevent undue harassment of the accused persons by pre-trial arrest and detention. The fact, that a court has either taken cognizance of the complaint or the investigating agency has filed a charge-sheet, would not by itself, prevent the courts concerned from granting anticipatory bail in appropriate cases. The gravity of the offence is an important factor to be taken into consideration while granting such anticipatory bail so also the need for custodial interrogation, but these are only factors that must be borne in mind by the courts concerned while entertaining a petition for grant of anticipatory bail and the fact of taking cognizance or filing of a charge-sheet cannot by itself be construed as a prohibition against the grant of anticipatory bail. The courts, i.e., the Court of Session, High Court or the Supreme Court, have the necessary power vested in them to grant anticipatory bail in non-bailable offences under Section 438 of Cr.P.C. even when cognizance is taken or a charge-sheet is filed provided the facts of the case require the court to do so.

In the above case, the Supreme Court explained / clarified certain contrary observations in the case of Salauddin Abdulsamad Shaikh, Salauddin Abdulsamad Shaikh v. State of Maharashtra, AIR 1996 SC 1042 : (1996) 1 SCC 667.

However, in some other cases, it was held by the Supreme Court that if the protective umbrella of Section 438 Cr.P.C. is extended beyond what was laid down in the above case of Salauddin Abdulsamad Shaikh, the result would be clear bypassing of what is mandated in Section 439 regarding custody. In other words, till the applicant avails remedies up to higher courts, the requirements of Section 439 become dead letter. No part of a statute can be rendered redundant in that manner. [See: (1) Nirmal Jeet Kaur v. State of M.P., (2004) 7 SCC 558; (2) Sunita Devi v. State of Bihar, (2005) 1 SCC 608 : AIR 2005 SC 498.]

[Note: Some of the above contents have been taken from my book: Law of Bail, Bonds, Arrest and Custody (2009 Edition), by Dr. Ashok Dhamija, appx. 1625 pages, published by LexisNexis Butterworths Wadhwa, New Delhi (ISBN: 978-81-8038-440-0).]

     

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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 think I have already replied to this. But, in any case, if at all you are determined to file a writ petition, better file it in the high court under Article 226 of the Constitution.     

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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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