[Dr. Ashok Dhamija]

In another question asked by you, you have mentioned that your father expired recently. I presume that “recently” means not later than 12 years. In such a situation, since your sister is living in the property of your father, then previously she would have been living there either in her capacity as daughter or as per the “family deed” mentioned by you. In my opinion, this previous period when your father was alive, cannot be included in the adverse possession since at that your father might also be staying there who was the owner of the property. And, since your father died recently, she would not be in adverse possession for a period of 12 years after his death. So, I do not think the adverse possession principle would apply in this case.

Moreover, she is not in exclusive possession of the property, since you said that you are also living in the same property (20% of the area). One of the requirements of adverse possession is exclusive possession. So, this ingredient is also not satisfied.

Further, as per your own version, she is apparently claiming title under the “family deed”. So, the ingredient of “hostile possession” which is required for adverse possession, is also apparently not satisfied.

Likewise, it appears that you have already started litigation in respect of the said property before the expiry of the 12 years period. Or, you may be about to start such litigation within such period.

In view of these reasons, I feel that it may not perhaps be possible for your sister to claim adverse possession. I have written all this on the basis of limited knowledge of detailed facts of your case. For a proper legal advice, you should show all relevant documents and details to some lawyer.

Similarly, without having seen all the relevant documents, it is not possible for me to tell you whether you should file for partitioning of the property as per Hindu Succession Act or should go in for declaration of the family deed as null and void. In fact, at another place, you have also mentioned that you have a will in your favour, but you don’t want to get it probated. So, these appear to be complicated questions of facts on which I cannot offer a correct solution without having seen the full contents of the relevant documents. It is in your own interests that you must show all relevant documents to some lawyer and obtain his considered opinion.

 

     

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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 may seek a copy of the DIR from the Magistrate court which is hearing the domestic violence case.

If you so wish, you may file an appeal against the above RTI reply, but the chances of success may depend on the response. These authorities may say that as far as they are concerned, the report can only be shared with the Magistrate who asked them to submit DIR.

So, you should try getting it from the Magistrate 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]

Please remember that a cooperative society is run on the democratic principles of decisions by majority. So, sometimes, the issues mentioned in your question may be unavoidable. Where two different views are possible, obviously in a democratic institution, the majority view may prevail and not the minority view.

How the maintenance charges in a society should be fixed – whether on per square feet basis or a fixed charge for all members irrespective of apartment size – is a question that often arises in cooperative societies which divides the members in two diametrically opposite groups. Recently, I have given following two replies on this issue, which are available at the following links:

• Maintenance Charges in Residential building
• Maintenance Charges for a society with high rise towers and low rise!

Please read these replies since they try to find out an equitable solution.

In the worst situation, if you are aggrieved by the decision of the society and if you feel that it is completely unjust, you may perhaps discuss with your local lawyer and see if you can file petition in the societies court or tribunal or other competent body (such as registrar), whichever body has jurisdiction in the matter under the relevant law applicable in your state.

     

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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, if the accused is suffering from such stammering problem, he or his lawyer should inform the court in advance about it before he is examined by court. Once this is informed to the court in advance, I do not think it would be possible for the lawyer of the opposite party to take undue advantage of such problem being faced by the accused.

Secondly, usually, the accused is not cross-examined in the case in which he himself is an accused. He is not asked or forced to enter the witness box. Of course, if the accused himself volunteers to be a witness in his own case, then the law permits him and considers him as a competent witness. If he does so, then only he would be cross-examined. In other situations, he would not be cross-examined by the opposite side lawyer.

At the same time, the court will generally examine the accused under Section 313 of the Criminal Procedure Code after the prosecution evidence has been completed. This is done on the basis of the general evidence that has come on record against the accused. But, here also, there is no scope for cross-examination.

If the accused or his lawyer have already informed the judge about the stammering problem, as mentioned above, the judge is expected to understand the problem and not draw any adverse inference against the accused if he starts stammering during his examination. In any case, an accused also has a right of silence; though in certain situations, his silence may be considered as an adverse circumstances; but, nonetheless, he has a right of silence and there is no penalty under law for such silence if he chooses to 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]

Sections 161 and 162 of the Criminal Procedure Code govern the powers and procedure for recording of statements by police during investigation of an offence. There is no specific format prescribed for such statements. These sections are reproduced here for your benefit:

“161. Examination of witnesses by police.— (1) Any police officer making an investigation under this Chapter, or any police officer not below such rank as the State Government may, by general or special order, prescribe in this behalf, acting on the requisition of such officer, may examine orally any person supposed to be acquainted with the facts and circumstances of the case.

(2) Such person shall be bound to answer truly all questions relating to such case put to him by such officer, other than questions the answers to which would have a tendency to expose him to a criminal charge or to a penalty or forfeiture.

(3) The police officer may reduce into writing any statement made to him in the course of an examination under this section; and if he does so, he shall make a separate and true record of the statement of each such person whose statement he records:

Provided that statement made under this sub-section may also be recorded by audio-video electronic means.

Provided further that the statement of a woman against whom an offence under Section 354, Section 354-A, Section 354-B, Section 354-C, Section 354-D, Section 376, Section 376-A, Section 376-B, Section 376-C, Section 376-D, Section 376-E or Section 509 of the Indian Penal Code (45 of 1860) is alleged to have been committed or attempted shall be recorded, by a woman police officer or any woman officer.”

“162. Statements to police not to be signed: Use of statements in evidence.— (1) No statement made by any person to a police officer in the course of an investigation under this Chapter, shall, if reduced to writing, be signed by the person making it; nor shall any such statement or any record thereof, whether in a police diary or otherwise, or any part of such statement or record, be used for any purpose, save as hereinafter provided, at any inquiry or trial in respect of any offence under investigation at the time when such statement was made:

Provided that when any witness is called for the prosecution in such inquiry or trial whose statement has been reduced into writing as aforesaid, any part of his statement, if duly proved, may be used by the accused, and with the permission of the Court, by the prosecution, to contradict such witness in the manner provided by Section 145 of the Indian Evidence Act, 1872 (1 of 1872); and when any part of such statement is so used, any part thereof may also be used in the re-examination of such witness, but for the purpose only of explaining any matter referred to in his cross-examination.

(2) Nothing in this section shall be deemed to apply to any statement falling within the provisions of clause (1) of Section 32 of the Indian Evidence Act, 1872 (1 of 1872), or to affect the provisions of Section 27 of that Act.

Explanation.—An omission to state a fact or circumstance in the statement referred to in sub-section (1) may amount to contradiction if the same appears to be significant and otherwise relevant having regard to the context in which such omission occurs and whether any omission amounts to a contradiction in the particular context shall be a question of fact.”

Confession of an accused person is recorded under Section 164 of the Cr.P.C. but that is done by the Magistrate. A confession of accused recorded by police is inadmissible in law, except to the extent as provided under Section 27 of the Evidence Act.

There is no legal provision for recording confession of an accused by police on the letter head of an opposite party. This is impermissible under law. It may not be shown by police on record. On the other hand, the opposite party may perhaps show it on his own record to show as if you had given such statement to him.

Whether or not such statement will be considered as your confession under law will depend on the facts and circumstances of the matter. It is not possible for me to comment on this issue without having seen the detailed facts of the matter and contents and nature of the so-called confession. Please show the relevant documents to some lawyer to understand about its legal implications. If you want to repudiate such statement, then under guidance of your advocate who has seen such so-called confession, you may consider writing to the court and/or to the senior officers of the police giving details and stating that it was obtained under force / coercion.

     

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

[Dr. Ashok Dhamija]

It is not possible to reply to questions relating to facts unless one has seen the detailed facts of the case. Moreover, when you have a regularly engaged advocate for your case to whom you must be paying his professional fee, you should ask him for the explanation of the term informed to you by him, if it is not clear to you.

Yet, I’ll reply to your legal question. Where a party to a suit dies during the pendency of the suit, steps to bring his legal representatives on record have to be taken in terms of the provisions of Order 22 of the Code of Civil Procedure. Order 22 uses the words “legal representative” which is defined in Section 2(11) of the Civil Procedure Code (CPC) as under:

“(11) “legal representative” means a person who in law represents the estate of a deceased person, and includes any person who inter-meddles with the estate of the deceased and where a party sues or is sued in a representative character the person on whom the estate devolves on the death of the party so suing or sued;”

As you may notice, it is a very wide definition.

In the case of Andhra Bank Ltd. v. Srinivasan, AIR 1962 SC 232, the Supreme Court has held that the term is not limited to administrators, executors and heirs and that it must be held to include any person who in law represents the estate of a deceased judgment-debtor.

In the above case, the Supreme Court further held as under:

“Mr Sastri concedes that a universal legatee would be a legal representative and he does not challenge that the person who intermeddles even with a part of the estate of the deceased is also a legal representative; but his argument is that a legatee who obtains only a part of the estate of the deceased under a will cannot be said to represent his estate and is therefore not a legal representative under Section 2(11). We are not impressed by this argument. The whole object of widening the scope of the expression “legal representative” which the present definition is intended to achieve would be frustrated if it is held that legatees of different portions of the estate of a deceased do not fall within its purview. Logically it is difficult to understand how such a contention is consistent with the admitted position that persons who intermeddle with a part of the estate are legal representatives. Besides, if such a construction is accepted it would be so easy for the estate of a deceased to escape its legitimate liability to pay the debts of a deceased debtor only if the debtor takes the precaution of making several legacies to different persons by his will. Besides, as a matter of construction, if different intermeddlers can represent the estate different legatees can likewise represent it. In regard to the intermeddlers they are said to represent the estate even though they are in possession of parcels of the estate of the deceased and so there should be no difficulty in holding that the clause “a person who in law represents the estate of a deceased person” must include different legatees under the will. There is no justification for holding that the “estate” in the context must mean the whole of the estate. Therefore, we are satisfied that the plain construction of Section 2(11) is against Mr Sastri’s argument, apart from the fact that considerations of logic and common sense are equally against it.”

In view of the above, it should be clear that legal representatives of your father would include all legatees of your father, all Class-I heirs of your father, and may be other persons who satisfy the 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]

Yes, it is true that if a specific entry in the ACR (even if it is “Good” or “Very Good”) of a government servant is below the benchmark for promotion, then such ACR entry is required to be communicated to such government servant. A denial of promotion on the basis of such entry, without communicating the same to the government servant, would be bad in law.

In the case of Dev Dutt v. Union of India, (2008) 8 SCC 725, the Supreme Court held that:

“…every entry (and not merely a poor or adverse entry) relating to an employee under the State or an instrumentality of the State, whether in civil, judicial, police or other service (except the military) must be communicated to him, within a reasonable period, and it makes no difference whether there is a benchmark or not. Even if there is no benchmark, non-communication of an entry may adversely affect the employee’s chances of promotion (or getting some other benefit), because when comparative merit is being considered for promotion (or some other benefit) a person having a “good” or “average” or “fair” entry certainly has less chances of being selected than a person having a “very good” or “outstanding” entry.”

The Supreme Court further held that a person getting any of the entries such as Very Good, Good, Average, Fair, Poor, should be communicated the entry so that he has an opportunity of making a representation praying for its upgradation, and such a representation must be decided fairly and within a reasonable period by the authority concerned. The Court further observed that if it was held that only “poor” entry is to be communicated, the consequences may be that persons getting “fair”, “average”, “good” or “very good” entries will not be able to represent for its upgradation, and this may subsequently adversely affect their chances of promotion (or get some other benefit).

In the case of Sukhdev Singh v. Union of India, (2013) 9 SCC 566, the Supreme Court further held that:

“…the view taken in Dev Dutt that every entry in ACR of a public servant must be communicated to him/her within a reasonable period is legally sound and helps in achieving threefold objectives. First, the communication of every entry in the ACR to a public servant helps him/her to work harder and achieve more that helps him in improving his work and give better results. Second and equally important, on being made aware of the entry in the ACR, the public servant may feel dissatisfied with the same. Communication of the entry enables him/her to make representation for upgradation of the remarks entered in the ACR. Third, communication of every entry in the ACR brings transparency in recording the remarks relating to a public servant and the system becomes more conforming to the principles of natural justice. We, accordingly, hold that every entry in ACR—poor, fair, average, good or very good—must be communicated to him/her within a reasonable period.”

It may be pointed out that, long back, in the case of Gurdial Singh Fijji v. State of Punjab, (1979) 2 SCC 368 : AIR 1979 SC 1622, the Supreme Court had held that the adverse remarks made in the ACR cannot be acted upon by the authority to deny promotion to a post unless they have been communicated to the person concerned.

     

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

[Dr. Ashok Dhamija]

To answer your question, let me first reproduce clause (a) of Section 142(1) of the Negotiable Instruments Act:

“142. Cognizance of offences.— (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),—

(a) no court shall take cognizance of any offence punishable under Section 138 except upon a complaint, in writing, made by the payee or, as the case may be, the holder in due course of the cheque;”

The above provision makes it clear that the court can take cognizance of an offence under Section 138 of the said Act only if such complaint has been filed by the payee (or the holder in due course) of the cheque. A complaint needs to be filed in the name of the payee or the holder of the cheque in due course, though it may be filed through some other person; but the complainant should be the payee or the holder of the cheque in due course.

In a case similar to what you have mentioned in your question, namely, in the case of Bhupesh Rathod v. Dayashankar Prasad Chaurasia, 2015 SCC OnLine Bom 4473, decided by the Bombay High Court, the Managing Director of a company had filed the complaint in his name when the payee was the company, and the complaint was not filed in the name of the company. In these circumstances, it was held as under:

“…the complaint had not been filed by the payee or the holder in due course of the cheques in question. Section 142 of the N.I. Act leaves no manner of doubt that a complaint in respect of an offence punishable under Section 138 thereof, would be maintainable only if it is filed by a payee or the holder in due course.”

In view of these reasons, the Bombay High Court upheld the acquittal of the accused in the cheque bounce case since the complaint was not filed by the proper complainant as required under Section 142 of the said Act.

Coming back to your question, if the complaint has been filed by a director of the company in his own name and the company is not made the complainant even though the company was the payee, such complaint may not be valid in view of the provisions of Section 142(1)(a) of the N.I. Act, as mentioned above.

     

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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, let me point out that, as I mentioned in Can cheating case under Section 420 IPC be filed in cheque bounce?, it may be possible in certain situations that offences under Section 420 IPC and Section 138 of the Negotiable Instruments Act may be committed in a cheque bounce case.

Secondly, with regard to the issue whether these two offences can be tried together, it may be pointed out that there are judgments directly on this point. For example, in the case of G. Sri Hari v. Nandkishore Lohoti, 2003 Cri LJ 643, the Andhra Pradesh High Court had directed the trial court to club together the trial of cases under Section 420 IPC and Section 138 of the Negotiable Instruments Act, when the two offences arose out of the same transaction, and to hold a common trial. Similarly, in the case of Rajeev Kumar Suri v. State of NCT of Delhi [Crl. M.C. No. 570-73/2006, decided on December 12, 2008] [read the judgment], Delhi High Court had given similar directions. So, a joint trial for these two offences may be possible.

     

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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]

Though there is no hard and fast rule as to which application will be heard first, generally speaking the surrender / bail application will be heard first, if it is filed at the same time along with the discharge application. This is so because the court may have to pass an immediate order when you surrender, i.e., whether to send you to jail or to grant you bail. When you surrender, this decision will have to be taken on the same day.

On the other hand, the discharge application may also require response / reply from the prosecution side and need not necessarily be decided on the same day. In fact, the discharge application may perhaps need detailed consideration if it raises serious issues.     

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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]

Let me first point out that Section 7 of the Prevention of Corruption Act, 1988, which defines the offence of bribery, inter alia, has an Explanation (d) which deals with the issue raised by you, and this explanation is reproduced below:

“(d) “A motive or reward for doing.” A person who receives a gratification as a motive or reward for doing what he does not intend or is not in a position to do, or has not done, comes within this expression.”

This Explanation makes it clear is that a public servant who “is not in a position to do” the work of the complainant for which he has taken a gratification, may still be considered to have accepted such gratification as a motive or reward as is mentioned in Section 7 offence. Thus, if the work for which the bribe was taken was not within the powers of the public servant, it may still be considered to be an offence under Section 7 of the said Act, if other requirements of the section are satisfied. This is the general legal principle that should answer your question.

Rest, of course, will depend on detailed facts of your question, since each case has its own peculiar facts and the application of the legal principles has to be seen in the light of the detailed facts of each case.

     

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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]

Filing of additional evidence in the appellate court during appeal stage is permissible in certain situations. The relevant provisions in this regard are contained in Order 41 Rule 27 of the CPC, which is reproduced as under:

“27. Production of additional evidence in Appellate Court.— (1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court. But if—

(a) the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or

(aa) the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed, or

(b) the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause,

the Appellate Court may allow such evidence or document to be produced or witness to be examined.

(2) Whenever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission.”

So, additional evidence can be submitted during appeal subject to the above provisions.

In a recent case, namely, A. Andisamy Chettiar v. A. Subburaj Chettiar, (2015) 17 SCC 713, the Supreme Court held as under:

“From the opening words of sub-rule (1) of Rule 27, quoted above, it is clear that the parties are not entitled to produce additional evidence whether oral or documentary in the appellate court, but for the three situations mentioned above. The parties are not allowed to fill the lacunae at the appellate stage. It is against the spirit of the Code to allow a party to adduce additional evidence without fulfilment of either of the three conditions mentioned in Rule 27.”

Accordingly, you’ll have to see whether the additional evidence sought to be produced by you in the appellate court satisfies these 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]

Recently, I have replied to almost the same or similar question and this reply is available at this link: Lost or missing cheque book and cheque bounce case.

So, please read that reply and see if it answers your answer.

     

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

[Dr. Ashok Dhamija]

Your question is not properly worded and appears to be vague.

Firstly, I presume that by DIR you mean the “domestic incidence report” as defined in the Protection of Women from Domestic Violence Act, 2005, since you have not clarified its full name.

Secondly, let me point out that the expression “public document” or “private document” are not defined or used in the Right to Information Act, 2005. However, these expressions are defined in the Evidence Act.

As per the definition of “public document” in Section 74 of the Evidence Act, the DIR will be a public document and not a private document.

However, let me also point out that under the RTI Act, there are different considerations for refusing to provide information sought in an RTI application. Most probably, DIR would have been refused to you under either clause (e) or (j) of Section 8(1) of the RTI Act, which are as under:

“(e) information available to a person in his fiduciary relationship, unless the competent authority is satisfied that the larger public interest warrants the disclosure of such information;”

“(j) information which relates to personal information the disclosure of which has no relationship to any public activity or interest, or which would cause unwarranted invasion of the privacy of the individual unless the Central Public Information Officer or the State Public Information Officer or the Appellate Authority, as the case may be, is satisfied that the larger public interest justifies the disclosure of such information:”

Further, let me point out that if you are a respondent in a Domestic Violence case, then the DIR should be given to you by the Magistrate himself, in compliance of the principles of natural justice of giving you a reasonable opportunity of being heard.

So, it is not clear with which authority you filed RTI application for getting DIR copy, and also whether you had tried to get it from Magistrate as a part of your right under the principles of natural justice principles.

     

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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 it should be possible since such a judgment is supposed to be with retrospective effect, unless it is declared only to be having prospective effect.     

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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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