Dr. Ashok Dhamija
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Dr. Ashok DhamijaAdvocateIf you have been recording your own conversations with your wife, I think you can produce that in court. If you were recording conversations of your wife with other persons, but if she was using your mobile phone and your mobile number (as you have mentioned), then also it may perhaps be alright, since in that case too you may explain that you had put the phone on automatic recording mode to record all conversations, it being your phone. In my opinion, it should be permissible in the situation mentioned by you.
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 DhamijaAdvocateIf the closure report is already prepared, then the police will file it sooner or later in the court. So, the best course is to wait for some reasonable time, keeping in view the fact that the investigation process itself has been slow (taking two years). In some states (such as in Maharashtra), there are rules in the police department to file the closure report after obtaining approval from the Sub-Divisional Police Officer (also called Circle Officer / ACP at some places) who is supposed to check whether the investigation is being closed properly. May be that the police station may be in the process of taking such approval. Or, they may be waiting for the next date in the court to file the report. In any case, you may try to ascertain the reason from the police and the time when they would submit it to the court.
In the worst situation, since it is a Section 156(3) Cr.P.C. order case, you may request the Magistrate concerned to call for the police report. You may even request the senior officers of police in this regard, if needed.
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.
August 24, 2017 at 10:42 am in reply to: Late submission of certificate under S 65-B Evidence Act for electronic evidence #2686Dr. Ashok DhamijaAdvocateIn my opinion, it should be permissible under law for the court to permit submission of the certificate required under Section 65-B(4) of the Evidence Act at a later stage, provided the certificate fully meets the requirements as mentioned in Section 65-B [i.e., of sub-sections (2) and (4) thereof].
In this regard, I may point out that in the case of Kundan Singh v. State [Crl. Appeal No. 711/2014, decided on November 24, 2015], a division bench of the Delhi high court discussed the issue whether a certificate under sub-section (4) to Section 65B must be issued simultaneously with the production of the computer output or a certificate under Section 65B can be issued and tendered when the computer output itself is tendered to be admitted as evidence in the court or as in the that case by the official when he was recalled to give evidence. Referring to the Supreme Court judgment in the case of Anwar P.V. v. P.K. Basheer, (2014) 10 SCC 473, the high court held that:
“the aforesaid paragraph does not postulate or propound a ratio that the computer output when reproduced as a paper print out or on optical or magnetic media must be simultaneously certified by an authorised person under sub-section (4) to Section 65B. This is not so stated in Section 65B or sub-section (4) thereof. Of course, it is necessary that the person giving the certificate under sub-section (4) to Section 65B should be in a position to certify and state that the electronic record meets the stipulations and conditions mentioned in sub-section (2), identify the electronic record, describe the manner in which “computer output” was produced and also give particulars of the device involved in production of the electronic record for the purpose of showing that the electronic record was prepared by the computer.”
A similar opinion has been expressed by Delhi high court in the case of Eli Lilly and Company v. Maiden Pharmaceuticals Limited, (2016) 235 DLT 381.
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 DhamijaAdvocateThe charge sheet referred to in the Supreme Court judgment mentioned in Suspension order not to extend beyond 3 months if charge-sheet is not served, says Supreme Court speaks about the charge sheet in the departmental proceedings and not in a criminal case under Section 173 of the Criminal Procedure Code.
In any case, now that you are saying that the trial court is at the stage of closure of the prosecution evidence and that the trial is likely to end in acquittal, the concerned employee should get reinstated after his acquittal in the criminal case, because as you said, the suspension was due to the criminal case (may perhaps be a case of “deemed suspension”, though you have not specified). In case the suspension is not revoked even after acquittal, it may be challenged in the appropriate court or the tribunal having jurisdiction in such service matters for the J&K Government servants.
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.
August 24, 2017 at 10:02 am in reply to: Can police authority add or delete sections from FIR? #2684Dr. Ashok DhamijaAdvocateAs I have explained in Can FIR be amended to add more names of accused persons later, once an FIR has been lodged, it cannot be amended. It is not possible to change the FIR and add or delete sections of law for the offences committed.
However, during investigation, if it is found that some more offences have been committed in the alleged incident or that there is no evidence for supporting some offences already mentioned in the FIR, then it is open to the investigating officer to add or delete sections of law representing those offences in the case diary of the investigation. However, the FIR will not be amended for this purpose, but the changes in sections would be reflected in the case diary. Further, at the end of the investigation, if charge sheet is to be filed, then it would reflect the correct sections of law under which offences have been committed, and this may mean some new sections added and some earlier sections removed from the case, depending upon the evidence collected during the investigation.
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 DhamijaAdvocateThough you have not clarified, it appears that you are referring to Section 380 of the IPC which is theft in dwelling house, etc. Please note that this section is not compoundable under law. Therefore, it is not clear how settlement was done in this case and how settlement amount paid to the advocate, when this case could not be compromised. Secondly, if there was a compromise between the parties, there should also have been some written agreement or MOU signed between the parties.
In any case, now that the offence is pending in court and your friend is in custody for 22 days, you or his family would have to apply for bail for getting him out of the custody. You can inform the court about the settlement amount already paid in the case; it may have some positive impact on the grant of bail. If you have some complaint against the advocate concerned, you may first try to sort it out with him, and then, if needed, you may file a complaint with the State Bar Council.
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 DhamijaAdvocateThe issues mentioned by you have been covered in our earlier replies, available at the following links:
- Is Income Tax payable on Family Pension received by a widow
- Is TDS for income tax deducted on family pension?
Please read them.
Actually, payment of tax is the responsibility of the person receiving some income if it is beyond taxable limits. TDS is an anti-tax-evasion method or, may be, to ensure better tax compliance. But, the TDS is generally less than the actual tax incidence. In most situations, it is generally 10% TDS rate. Since, there is no legal provision for the TDS on family pension, the banks disbursing the family pension cannot deduct TDS since that would be an illegal act on their part. I agree with you that some people may be ignorant of about payment of tax at that end; but, then, this is the law. By the way, that ignorance of law is no excuse, is a well established legal principle.
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 DhamijaAdvocateFrom the facts mentioned by you, the matter appears to be of a civil nature. But, as it generally happens in such matters, the opposite party might have given a different version of the story while filing the FIR which may perhaps be showing the existence of a prima facie case. So, in order to find out whether an offence is made out (as per the FIR) in the matter, you’ll have to see what facts are mentioned in the FIR.
If the facts mentioned in the FIR are absolutely false or non-existing, then you can point out with proof to the police itself during investigation. In such case, the police may close the investigation if your side is found to be true. But, if the facts mentioned in the FIR are supported by evidence and they show commission of an offence, then naturally the investigation may lead to charge sheet. You can try for discharge if charge sheet is filed if you believe that the charge is wrong and it is a civil matter.
On the other hand, if the facts mentioned in the FIR do not make any offence even if one reads them on face value, then there may be a good case for approaching the high court for quashing of the FIR.
Regarding your question with regard to obtaining anticipatory bail before meeting the SHO, it depends on whether you are apprehending arrest when you meet him. If so, you can apply for anticipatory bail. But, if you feel that the police is not going to arrest you at this stage and merely wants to record your version, then there would be no need for anticipatory bail at this stage. However, if you are not sure in this regard and do not want to take risk, then better file an application for anticipatory bail immediately.
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.
August 23, 2017 at 8:56 am in reply to: 498-A IPC – application for exempting personal appearance of accused #2675Dr. Ashok DhamijaAdvocateBetter if you submit signed applications of your father and sisters themselves, who are accused. You should present their applications to court in the capacity of a relative and not another accused person. The best would be to engage some lawyer in such circumstances.
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 DhamijaAdvocateSince the lady is getting ₹ 32000 per month family pension, it amounts to about ₹ 4 lakh per year, which may be in the taxable bracket, subject to deductions, etc.
Receipt of arrears of family pension amounting to ₹ 4.50 lakh in a particular financial year will increase the tax liability for that year, and may also bring the income in the higher tax slab. However, to take care of it, she can take the advantage of the provisions of Section 89 of the Income Tax Act, which is reproduced below:
“89. Relief when salary, etc., is paid in arrears or in advance.—Where an assessee is in receipt of a sum in the nature of salary, being paid in arrears or in advance or is in receipt, in any one financial year, of salary for more than twelve months or a payment which under the provisions of clause (3) of Section 17 is a profit in lieu of salary, or is in receipt of a sum in the nature of family pension as defined in the Explanation to clause (ii–a) of Section 57, being paid in arrears, due to which his total income is assessed at a rate higher than that at which it would otherwise have been assessed, the Assessing Officer shall, on an application made to him in this behalf, grant such relief as may be prescribed: … …”.
The advantage of Section 89 is that relief can be granted when salary or family pension is received in arrears in one particular year. As per this, tax relief is provided by recalculating tax for both the years, i.e., the year in which arrears are received and the year to which the arrears pertain. The taxes are adjusted assuming arrears were received in the year in which they were due, even though they might have been received subsequently.
It is mandatory to file Form 10E if you want to claim relief under Section 89(1) for apportioning the arrears of family to the corresponding relevant years to which they pertain. Please consult some CA or other qualified person if you are not sure how to fill it. This Form should be available online.
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.
August 22, 2017 at 6:53 pm in reply to: Continuation of anticipatory bail already granted in protest complaint case. #2671Dr. Ashok DhamijaAdvocatePresuming that the language used in the anticipatory order mentions the FIR or Crime No. and also that the protest petition is a continuation of the same FIR or Crime No. (because sometimes, the protest petition may be treated as a separate private complaint), the anticipatory bail order passed during the investigation earlier should be considered to be continuing during the protest petition.
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 DhamijaAdvocateI do not think you have any chance. You are thinking of challenging 1997 promotion order, and that too when the person promoted was not junior to you.
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.
August 21, 2017 at 6:09 pm in reply to: Value of affidavit cum receipt (notorised) after 1 year of sales deed? #2666Dr. Ashok DhamijaAdvocateUnfortunately, you are asking questions on facts of the case, and more so, when the facts appear to be complicated and twisted. One set of facts on record and another verbal. Please do not expect any good advice on facts of the case from a person who has not even seen the documents.
But, in general, let me point out that it is not uncommon in India to have cash component in property transactions. One value is shown in the sale deed while an extra amount is paid in cash. Further, though you have not made it clear, it appears that the property was sold by your mother and probably also by your brother, so they are perhaps mentioned as sellers in the sale deed, while you have given your consent for the sale (may be perhaps because you might also have been a successor to the property). Now, here again, it may not be uncommon for the person giving his consent for sale of a property (in which he may have some right, defined or undefined) by others, accepting some consideration for giving his consent. A person may give his consent to a sale either due to natural love and affection towards the seller (in this case, your mother / brother), or one may receive a consideration for giving such consent. These are things which depend on the facts of each case. But, technically, it is possible that an allegation can be levelled that the person giving consent had received a consideration. So, such an allegation may not always be a wild or baseless allegation, and may need to be defended properly instead of being confined to dust-bin at the outset by saying it lightly that how can a person giving consent could have received an amount.
More than what is mentioned above, it is not possible to comment in the absence of knowing facts of the case.
My advice to you would be to engage a good lawyer, show him all documents and discuss with him all relevant facts, and obtain his advice. If you are not satisfied with your existing lawyer (as it appears from your different questions), then you should consider changing him. But, please note that you cannot get good advice from someone who has not seen detailed facts.
Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers. List of his YouTube Videos.
August 21, 2017 at 5:51 pm in reply to: Exact status of case after dismissal as with full satisfaction in false case #2665Dr. Ashok DhamijaAdvocateSuch types of questions are based on facts and only a person who knows the full facts of the case would be in a position to answer them. Why don’t you ask these questions in detail from your advocate if you have already engaged him professionally? Whether the case has been dismissed or will continue, has to be checked from the court records. Whether the civil case is in the hearing list on fixed date or some other date is given, has to be ascertained by your advocate from the court records. Likewise, the exact status of the case can only be found from the court records. How are we supposed to know all these things? Please ask such questions from your advocate or check from the court yourself.
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.
August 21, 2017 at 5:44 pm in reply to: Use of phone recording as evidence against a lady using unparliamentary language #2664Dr. Ashok DhamijaAdvocateWhether or not it is advisable to use such phone recordings in defence in the facts and circumstances of your case, is something that only your lawyer can tell who would have seen the nature of the charges and the nature of the evidence on record and also the requirements of the case.
But, from legal point of view, phone recordings are admissible in evidence. They can be submitted in court either in original (i.e., primary evidence) or through their copies by following procedure laid down in Section 65-B of the Evidence Act.
You can search this website (Tilak Marg) for expressions such as “electronic evidence” or “65-B” to read more on similar issues.
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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