[Dr. Ashok Dhamija]

Section 409 IPC is applicable when a person is entrusted with
property, or with any dominion over property in his capacity of a
public servant or in the way of his business as a banker, merchant,
factor, broker, attorney or agent, and then he commits criminal breach of trust in respect of that property.

In the case of your friend, he has misappropriated property belonging to a private person. So, merely because your friend is a public servant (being employee of a state Government), would not mean that such property was entrusted to him in his capacity as a public servant, which would have attracted offence under Section 409 IPC.

However, it will still have to checked as to whether your friend was entrusted with such property in his capacity as an attorney (power of attorney) or in his capacity as an agent of such private person. If yes, in that case Section 409 IPC may still be applicable in such situation.

Otherwise, only offence under Section 405 IPC would be applicable in his case, and offence under Section 409 IPC would not be applicable.     

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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]

Nomination is basically for convenience so that the property could be transferred to the nominated person at the earliest, who basically has to act as a caretaker of the property on behalf of the successors of the deceased person. But the actual succession is governed either by testamentary succession (i.e., by will made, if any) or in its absence by the intestate succession (i.e., as per the rules of succession when no will has been made).

So you will have to check if any will has been made by your father. If yes, the property will have to be disposed of in accordance with the will of your father. In case no such will has been made by your father, then this property will be equally shared by the three of you, i.e., you, your brother and your sister.

So, you may not be in a position to sell this property alone without the consent of the successors, 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]

You can give such loan to your friend without interest as a friendly loan. Since the amount of loan is more than Rs. 20,000/-, as per the provisions of the Income Tax Act, you should give this loan by way of account payee cheque and likewise the repayment of this loan should also be received by account payee cheque.     

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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]

In order to answer your question, let me refer to Section 52 of the Transfer of Property Act, 1882:

“52. Transfer of property pending suit relating thereto.— During the pendency in any Court having authority within the limits of India excluding the State of Jammu and Kashmir or established beyond such limits by the Central Government of any suit or proceeding which is not collusive and in which any right to immovable property is directly and specifically in question, the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein, except under the authority of the Court and on such terms as it may impose.

Explanation.—For the purposes of this section, the pendency of a suit or proceeding shall be deemed to commence from the date of the presentation of the plaint or the institution of the proceeding in a court of competent jurisdiction, and to continue until the suit or proceeding has been disposed of by a final decree or order and complete satisfaction or discharge of such decree or order has been obtained, or has become unobtainable by reason of the expiration of any period of limitation prescribed for the execution thereof by any law for the time being in force.”

So, what this legal provision says is that a suit property cannot be transferred by any party to the suit so as to affect the rights of any other party thereto, except under the authority of the court and on such terms as such court may impose.

If there is a specific injunction against transfer of the property during the pendency of the suit, then, of course, such property cannot be transferred against the terms of the injunction order. Even if there be no injunction, it is advisable to obtain orders from the court to sell such property which is the subject matter of the suit. In any case, as Section 52 of the Transfer of Property Act lays down, as mentioned above, any such transfer of the property cannot adversely affect the rights of other parties to the suit and such sale/transfer shall be subject to the final outcome of the suit. Even the purchaser of such property may also have to bear the risk of the final outcome of the suit.

     

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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 Central Administrative Tribunal in a single body throughout India and it has several benches spread all over the country. Its principal bench is in New Delhi. Accordingly, its different benches are supposed to follow the same policy and have consistency. If the bench at one place does not agree to a legal principle laid down by another bench of the Tribunal, instead of giving a different opinion, it is supposed to refer the matter to a larger bench for resolution of the issue.

Secondly, whether or not the decision of the Tribunal given in the case of one employee would be binding in respect of other employees would depend upon whether any legal principle has been laid down applicable to all similarly placed persons or whether that was decided purely on the facts of that particular employee.

In any case, if you feel that your case is completely covered by the decision of the Tribunal delivered in the case of another employee (even if it was delivered by another bench of the Tribunal), you may make a request to the competent authority in your department for applying the same legal principle in your case based upon the decision of the Tribunal. If your department gives you the similar benefit based on the decision of the Tribunal, it’s well and good. Otherwise, you may have to file an Original Application before the bench of the Tribunal having jurisdiction in your matter and in that Original Application, you can specifically mention that your matter is covered by such decision of the Tribunal. In a covered case, proceedings before the Tribunal will be comparatively shorter and you are likely to get the decision earlier than usual. That is the way you can proceed further in your matter.

     

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

[Dr. Ashok Dhamija]

A female who has not completed 18 years of age is considered as “child” under the provisions of the Prohibition of Child Marriage Act, 2006.

Further, under the above Act, “child marriage” is defined as a marriage to which either of the contracting parties is a child.

In view of the above, the marriage of the sister of your friend at the age of 16 years, would come within the meaning of “child marriage”.

Moreover, Section 3(1) of the above Act lays down that every child marriage, whether solemnised before or after the commencement of the above Act, shall be voidable at the option of the contracting party who was a child at the time of the marriage.

Accordingly, the sister of your friend can file a petition before the district court for annulment of her above marriage, and there is no need to apply for divorce in respect of such marriage since it can be declared as null and void.

After her said marriage is annulled by the court, she can marry again.

     

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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 need to cancel the original sale deed. You can execute a rectification deed between the same parties to rectify or correct the wrong details mentioned in the original sale deed. A rectification deed is a supplementary document meant to rectify errors of a factual or typographical nature in the original deed.

     

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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 as to which is the organisation or Government. It may depend on what are the rules of the particular organisation or Government.

With regard to the Central Government rules, in my understanding, it is legally possible to issue a charge sheet without seeking explanation of the government servant concerned, though it is always desirable first to seek his explanation to understand his side of the story in order to take a balanced view of the alleged misconduct.

For example, Rule 14(4) of the CCS (CCA) Rules lays down that: “The disciplinary authority shall deliver or cause to be delivered to the Government servant a copy of the articles of charge, the statement of the imputations of misconduct or misbehaviour and a list of documents and witnesses by which each article of charges is proposed to be sustained and shall require the Government servant to submit, within such time as may be specified, a written statement of his defence and to state whether he desires to be heard in person.”

It would appear from this sub-rule that charge sheet is served to the government servant and then his written statement (equivalent to his explanation) is called.

In addition to the above, there may be a question whether his explanation need to be called during the preliminary enquiry in his misconduct. However, as I have pointed out in an earlier reply [Preliminary enquiry – whether necessary before major penalty charge sheet and can a junior officer conduct it?], a preliminary enquiry itself may not always be necessary before conducing regular disciplinary proceedings. So, seeking the explanation of the government servant concerned may not be mandatory even at that stage.

However, all said and done, whatever the rules may say, there is no harm if the explanation is sought before issuing the formal charge sheet, may be at the stage of a preliminary enquiry (whether formal or informal) so that a balanced view could be taken on the alleged misconduct. So, even if the rules may not provide, it may perhaps be advisable to seek an explanation from the delinquent employee.

     

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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, even if the reason for return of the cheque is “account blocked”, a case of cheque bounce under Section 138 of the Negotiable Instruments Act can be made out, if other conditions (such as with regard to notice, the cheque being to discharge debt or liability, etc.) are fulfilled.

You have not clarified as to whether you are the drawer of the cheque or payee of the cheque. If you are drawer of the cheque, you can take the defence that blank cheques were issued prior to the account was blocked and that the account was blocked by the Government authorities which is beyond your control. Moreover, in such scenario, when you get the notice about dishonour of the cheque, if you pay the amount as per the notice then no cheque bounce case would be made out.

     

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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 instructions of the Government of India [O.M. No. 28034/4/94-Estt. (A) dated 31/05/1994 of the M/o Personnel, PG and Pensions, Department of Personnel & Training], on the subject of acceptance of resignation of officials against whom departmental inquiry or investigation is pending (whether he had been placed under suspension or not), such resignation should not normally be accepted. Where, however, acceptance of resignation is considered necessary, in the public interest, the competent authority shall examine the case with reference to the merits of the disciplinary case pending against the Government servant, whether it would be in the public interest to accept the resignation. If the Government servant is facing the charge of a grave delinquency, it would not be correct to accept a resignation from him.  Exceptions to this rule would be where the alleged delinquency does not involve moral turpitude or where the quantum of evidence against the delinquent Government servant is not strong enough to justify the assumption that if the departmental proceedings were continued, he would be removed or dismissed from service, or where the departmental proceedings are likely to be so protracted that it would be cheaper to the public exchequer to accept the resignation.

In your case, you have stated that the charge against you is that of absence from duty without permission of the authority. This charge does not involve moral turpitude. Moreover, the charge is such that removal and dismissal from service may not be the only punishment in such situation; there may be a lesser punishment also. So, you may try submitting your resignation to the competent authority. You can convince your competent authority with regard to the above instructions of the Government of India by showing that your case falls under the situation where such resignation may be accepted.

     

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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 a company is a separate legal entity and is an independent legal person, it would be sufficient if you name the company as the opposite party in your consumer complaint. You may also name the company through its directors. But, there is no need to show the directors separately as opposite parties, since the complaint is against the company itself which is a separate legal person; in fact, if directors are separately shown as opposite parties (when that is not needed where the consumer complaint is only against the company) there is a possibility that the consumer court may delete the name(s) of such directors from the list of opposite parties in your consumer complaint.

     

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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 mentioned as to what are the terms of your agreement with the builder. Does it mention payment of the final instalment after the builder getting occupancy certificate / completion certificate from the authorities and then giving possession? If yes, you should not pay the final instalment to the builder unless he obtains these certificates from the authorities. There have been many cases wherein builders had given possession of the flats without getting occupancy certificate etc. from the authorities and thereafter the flat owners faced many difficulties. So, you must check the terms of the agreement.

Of course, if the builder is permitting you to take possession without payment of the final instalment and if you are in hurry to take possession (may be to save rent from the current house) then it may be a different thing, since you can get the finishing done in your presence and also get benefit of early possession. But, it is for you to decide, subject to legalities.

     

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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 as to on what grounds the bank has returned the cheque. It appears that the cheque would have been returned to the payee since it is beyond the validity period. Anyway, if the facts mentioned in your question are correct, then this question may be irrelevant since no offence is made in the facts stated by you.

One of the main conditions for the offence under Section 138 of the Negotiable Instruments Act to be made out is laid down in clause (a) of the Proviso to this section as under:

“(a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier;”

It is noteworthy that nowadays the validity period of a cheque is generally 3 months only.

In your case, the cheque has been presented to the bank after about 9 months of the date on which the cheque was drawn, which is much beyond the period mentioned above. Therefore, the above condition is not fulfilled due to which the offence of cheque dishonour under Section 138 of the N.I. Act cannot be said to have been committed.

So, you can reply to notice saying that no such offence is committed since one of the main conditions for the offence being made out is not satisfied.

     

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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]

Examination of a witness is considered to be incomplete if he has not been cross-examined. Therefore, if a witness dies after completion of his examination-in-chief, but before he could be cross-examined, his evidence remains incomplete.

Now, what is the evidentiary value of his incomplete testimony in court? Should it be completely discarded?

In this regard, most judgments of the superior courts hold that the evidence of such witness cannot be rejected as inadmissible, however, such evidence untested by cross-examination can have little value. The evidence of a witness in these circumstances is admissible but the Judge who is dealing with it must decide for himself whether he believes the facts stated or does not believe them, since such evidence is untested in cross-examination.

The Supreme Court has also held that “it would not be safe to rely on the examination-in-chief recorded which was not subjected to cross-examination” [Gopal Saran v. Satyanarayana, (1989) 3 SCC 56 : AIR 1989 SC 1141.]

But, at the same time, as mentioned above, the courts are generally of the view that such evidence is not inadmissible but it should be viewed cautiously and little value can generally be attached to such evidence.

     

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

[Dr. Ashok Dhamija]

The law never makes it mandatory to arrest an accused person involved in a crime. Even though the power to arrest may be there with the police or ACB or CBI in respect of a particular offence, it is not mandatory that accused should always be arrested. Arrest has to be made if it is necessary for the purposes of the investigation or to ensure that the accused does not abscond or does not threaten witnesses or does not destroy evidence, etc. Merely because there is power to arrest in a specific offence, would not mean that the arrest should necessarily be made.

In accordance with this general principle, it is not mandatory for the ACB or the CBI to arrest a person who is accused of an offence of possessing assets disproportionate to his known sources of income, as defined in Section 13(1)(e) of the Prevention of Corruption Act, 1988, punishable under Section 13(2) thereof. As per the necessity, such accused may or may not be arrested.

     

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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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