Dr. Ashok Dhamija
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July 11, 2017 at 8:17 pm in reply to: Can employee of company be appointed as its internal auditor under Companies Act #2284
Dr. Ashok DhamijaAdvocateThe provision relating to appointment of an internal auditor for prescribed companies is contained in Section 138 of the Companies Act, 2013, which is reproduced below:
“138. Internal audit.—(1) Such class or classes of companies as may be prescribed shall be required to appoint an internal auditor, who shall either be a chartered accountant or a cost accountant, or such other professional as may be decided by the Board to conduct internal audit of the functions and activities of the company.
(2) The Central Government may, by rules, prescribe the manner and the intervals in which the internal audit shall be conducted and reported to the Board.”
The companies for which the above provision is applicable have been prescribed in Rule 13 of the Companies (Accounts) Rules, 2014. In the Explanation to sub-rule (1) in this Rule, it has been clarified that the internal auditor may or may not be an employee of the company.
Thus, freedom has been given to the companies to whom the provision of internal auditor is applicable to appoint even an employee as the internal auditor, provided other conditions mentioned in above section are satisfied.
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 DhamijaAdvocateWhat is seen for the purposes of quashing of the FIR or of the criminal proceedings is not your defence evidence but whether there is no case at all from the prosecution side. If the prosecution has at least prima facie evidence (which may ultimately be proved or may not be proved, after the trial), it is sufficient to proceed with the trial and the petition for quashing of the proceedings may not succeed; and, it may be just wastage of your time, money and energy.
At the stage when evidence is already being recorded, the chances for quashing of the criminal proceedings will be very limited and you’ll have to have something extraordinary in your favour to show that there is no prima facie case for prosecution. Instead, it is better to concentrate on the evidence recording and do your best in the trial. You should have tried for quashing at an earlier stage; and, if you had done it earlier, there is no point in repeating such action.
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 you can prove biased mind of the judge, you may seek transfer of the case. You may also try to seek transfer within the same district or state to another judge.
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 this is the only ground for proving forgery then the conviction appears to be doubtful. In any case, there appear to be various other grounds on which you may perhaps challenge the conviction. Contact some lawyer with full documents if you have not filed your appeal in high court as yet.
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 DhamijaAdvocateThese are two entirely different matters. Cheque bounce case under Section 138 of the Negotiable Instruments Act arises because the cheque has got dishonoured and other conditions mentioned in Section 138 (such as relating to issuing of a notice, etc.) have been satisfied.
On the other hand, a case under the Consumer Protection Act would be made out because of deficiency in services.
Therefore, it is possible for you to file both the cases, i.e., the cheque bounce case as well as the consumer complaint, if the cause of action for these respective cases has arisen, as it appears to be.
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.
July 11, 2017 at 10:37 am in reply to: Time limitation to file regular second appeal in civil case in high court #2265Dr. Ashok DhamijaAdvocateThe second appeal is provided under Section 100 of the Civil Procedure Code (CPC), which can be filed before the High Court from a decree passed in appeal by any Court subordinate to the High Court, subject to the conditions mentioned therein and other provisions of the CPC.
The limitation period for filing such second appeal is 90 days as per Article 116(a) in the Schedule to the Limitation Act, 1963.
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 DhamijaAdvocateAs per the guidelines of the Government of India, a resignation is treated as a technical formality where a Government servant has applied through proper channel for a post in the same or some other Department, and is on selection, required to resign the previous post for administrative reasons. In such a situation, the resignation is treated as technical resignation if these conditions are met, even if the Government servant has not mentioned the word “technical” while submitting his resignation in the previous post.
In the case of technical resignation, the benefit of past service, if otherwise admissible under rules, may be given.
Resignation in other cases including where competent authority has not allowed the Government servant to forward the application through proper channel will not be treated as a technical resignation and benefit of past service will not be admissible.
Also, the Government has clarified that there is no question of giving benefit of a resignation being treated as a technical resignation in case of it being from a post held on ad hoc basis.
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 DhamijaAdvocateMy reply is based on knowledge of limited facts of your case. So, it is a general reply and you may need to consult a lawyer professionally by showing him all your case papers.
I may point out that there is a vast difference between a “wrong ST certificate” and a “forged ST certificate”. To prove a criminal case, it should have been a forged certificate and a mere wrongly issued certificate may not amount to an offence. In your factual matrix, it may perhaps be possible to show that in the worst scenario, it may have been a case of wrongly issued certificate and not a forged certificate. This is subject to detailed examination of your case. However, as I mentioned above, you need to consult in detail a lawyer who needs to study all your case papers.
What I have written above is on the basis of the Government of India guidelines on issue of on the status of the off-springs of a couple where one of the spouses is a member of a Scheduled Tribe. In this regard, the GOI guidelines provide that in the case of marriage between a tribal with a non-tribal, the main factor or consideration is whether the couple were accepted by the tribal society to which the tribal spouse belongs. If he or she, as the case may be, is accepted by the Society then their children shall be deemed to be Scheduled Tribes. But this situation can normally happen when the husband is a member of the Scheduled Tribe. However, a circumstance may be there when a Scheduled Tribe woman may have children from marriage with a non-Scheduled Tribe man. In that event the children may be treated as Scheduled Tribes only if the members of the Scheduled Tribe Community accept them and treat them as members of their own community.
So, you may have to carefully prepare your defence since you have said that your mother is from ST community. Engage a good lawyer. It is not only a question of your job but also of conviction and punishment in an offence as you have said that the CBI has proved forged ST certificate against you and presently you are in the high court.
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 DhamijaAdvocateIt is true, Section 15(5) of the Limitation Act provides that “In computing the period of limitation for any suit the time during which the defendant has been absent from India and from the territories outside India under the administration of Central Government shall be excluded.”
However, there is no corresponding provision in the Limitation Act which provides for exclusion of the period during which the plaintiff or the complainant has been absent from India. In the absence of any such specific provision, it may not be possible to apply the same principle to the absence of the plaintiff / complainant from India.
It is a well known principle of interpretation of statutes that a legal provision has to be construed literally if the language used in a statute is clear and unambiguous. In Section 15(5), the exclusion of period is only in respect of the absence of the defendant from India. It cannot be stretched to include the absence of plaintiff from India, by way of interpretation. Had there been a specific provision to that effect, that would have definitely been a different situation.
In the case of Lala Balmukund v. Lajwanti, (1975) 1 SCC 725 : AIR 1975 SC 1089, the Supreme Court has held that:
“…The Limitation Act deprives or restricts the right of an aggrieved person to have recourse to legal remedy, and where its language is ambiguous, that construction should be preferred which preserves such remedy to the one which bars or defeats it. A court ought to avoid an interpretation upon a statute of limitation by implication or inference as may have a penalising effect unless it is driven to do so by the irresistible force of the language employed by the Legislature.”
Therefore, it may not be possible to exclude the period during which the plaintiff or the complainant has been absent from India while computing the period of limitation.
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 DhamijaAdvocateLegally, such a complaint would be well within the limitation period, so no formal explanation is needed. At the same time, an FIR registered after a delay of 2.5 years may be seen with some suspicion as to why the complaint was not given immediately after the offence occurred. It shows some sort of premeditation. Such delay reduces the value of the FIR, and its credibility goes down. For that purpose, you may have to explain the delay, in order to show that it was not premeditated, etc. In fact, there is a column in the FIR format that mentions the reasons for delay in lodging the FIR. In certain important offences (such as murder or other serious offences), even a delay of 24 hours can be considered as the one that diminishes the value of the FIR. That said, as I mentioned above, such FIR would be within limitation period and cannot be debarred, though it will have a diminished value.
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.
July 10, 2017 at 11:11 pm in reply to: Can I get anticipatory bail before actual registration of FIR? #2255Dr. Ashok DhamijaAdvocateI have already replied to a similar issue in detail in the past and my previous reply is available at the following link: Can anticipatory bail be granted even before registration of FIR?
Please read this reply as it covers your question.
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 DhamijaAdvocateOnce an order has been issued by a magistrate under Section 156(3) of the Criminal Procedure Code directing the police to register the FIR, it is the duty of the police to do so without any unnecessary delay. If the police fails to comply with the directions given by the magistrate, it may amount even to contempt of court. A period of three months is a long period to comply with the directions given by the magistrate, and it was the duty of the police to register the FIR promptly. If the police believes that the order given by the magistrate is legally incorrect, it may challenge the same before the higher courts. However, unless it does so, non-compliance with the orders of the magistrate can be taken seriously by the court and it may even invite action for contempt of court.
In view of this, you must bring it to the notice of the magistrate that its order has not been complied with by the police in spite of a period of about three months having elapsed since then. Once you bring it to the notice of the magistrate by filing an appropriate application or otherwise, it is up to the magistrate to take appropriate steps to get his order complied with by the police. You should not worry about antagonising the police or the court. If what you are doing is a lawful thing and it is justifiable too in the circumstances of the case, you should not worry about such issues even though it may appear to be an unpleasant thing to complain about an authority.
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.
July 10, 2017 at 10:55 pm in reply to: How writ petition civil and criminal differ under Article 32 in supreme court #2253Dr. Ashok DhamijaAdvocateA writ petition under Article 32 of the Constitution can be filed before the Supreme Court only for the enforcement of the fundamental rights. Fundamental rights are available not only with regard to civil laws but also with regard to criminal laws. For example, Articles 20 and 22 are applicable in respect of criminal laws. Articles 14 and 21 may be applicable both in respect of the civil laws as well as the criminal laws.
As mentioned above, Article 32 deals with enforcement of any of the fundamental rights. Therefore, depending upon what type of fundamental right is violated and/or depending upon the nature of the proceedings, a writ petition (civil) or a writ petition (criminal) may be filed before the Supreme Court under Article 32 of the Constitution. This provision takes care of both types of proceedings.
Further, writs mentioned under Article 32 can be issued by the Supreme Court depending upon the nature of the proceedings and the nature of the fundamental right sought to be enforced under Article 32 of the Constitution.
Therefore, there is nothing unusual if writ petitions of civil and criminal, both, can be filed under Article 32 before the Supreme Court.
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.
July 10, 2017 at 5:18 pm in reply to: Why CrPC sec 506 is not having similar provisions throughout india #2252Dr. Ashok DhamijaAdvocateFirstly, you are actually referring to Section 506 of Indian Penal Code (IPC) and you have wrongly mentioned 506 CrPC (Criminal Procedure Code). In fact, there is no Section 506 in Cr.P.C., and its last section is Section 484. However, whether this offence under Section 506 IPC is cognizable or non-cognizable, is laid down in the Cr.P.C. and not in IPC. Anyway.
Secondly, the Cr.P.C. (which categorizes whether Section 506 IPC would be cognizable or non-cognizable) has been enacted by the Parliament of India under the legislative powers given to it under the Concurrent List in the Seventh Schedule of the Constitution. This is because “Criminal procedure, including all matters included in the Code of Criminal Procedure at the commencement of this Constitution” is a subject which is covered in the said Concurrent List.
When a subject is covered in the Concurrent List, the Parliament (at the Central level) as well as the individual State Legislatures have the concurrent powers to make laws on the same subject. This means both of them can make laws on that subject, subject to certain conditions. If a Central law exists on such a subject, a State Legislature can amend that law or make different provisions for that state, by taking the assent of the President of India under Article 254 of the Constitution.
Now, since Criminal Procedure Code (Cr.P.C.) is a Central law, the Legislature of a state can make a different provision from the one existing in the Cr.P.C. by taking assent of the President of India under Article 254 of the Constitution. If that happens, then such state amendment will be valid only in that particular state, while other states will continue to have the main provision of Cr.P.C.
In this particular case, in the Cr.P.C., which is a Central Act, Section 506 IPC is categorized as a non-cognizable offence. But, some states have taken assent from the President and have amended it to make it fully or partly cognizable. Therefore, the amended provision (i.e., making Section 506 IPC as a cognizable offence) applies in those states where such amendment has been made, while in all other states the original provision of Cr.P.C. (which categorizes 506 IPC as non-cognizable) continues to apply.
Also see, for some more details on this issue: Section 506 IPC – whether bailable or non-bailable?
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.
July 10, 2017 at 3:34 pm in reply to: Double jeopardy of 3 cases under 125 CRPC, HMA 24 and DV Act on same grounds #2244Dr. Ashok DhamijaAdvocateNo doubt, proceedings under Section 125 Cr.P.C. are for maintenance only.
But, maintenance under Section 24 of the Hindu Marriage Act is considered only when some other proceedings are already pending under that Act, which may be for divorce or restitution of conjugal right, etc. Therefore, the nature of these two proceedings may not be same, though there may be some commonalities.
Likewise, proceedings under the provisions of the Protection of Women from Domestic Violence Act are generally for some other purposes such as protection order, residence order, etc., though monetary relief can also be given to a woman under this Act.
In any case, if maintenance is being ordered under two or more of these proceedings, you can always inform the court about pendency of the proceedings for the same purpose in the other court or about any previous order already passed by another court for maintenance, and such court will in that case either not pass any separate order for maintenance or will adjust the amount of maintenance taking into consideration the maintenance already ordered in the other proceedings. Therefore, you can always point it out to the court about duplicity of the proceedings, if at all they are for the very same purpose and when the same relief is being ordered in such proceedings. In the worst scenario, you may challenge the duplicate order in the higher courts.
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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