Effect of lost / stolen cheque on Cheque Bouncing 138 NI Act case

By

Alabhya Dhamija

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Oct 21, 2018

Cheque bounce case

Section 138 of the Negotiable Instruments Act, 1881 provides for a punishment if a person who has issued a cheque is unable to clear the cheque and the said cheque gets dishonored. A criminal case is made against the person who had issued the cheque (drawer) for issuing a cheque and fraudulently not having sufficient funds in his account or for a stop payment direction to the bank. The maximum punishment in such cases is upto 2 years imprisonment, or fine amounting to double the cheque amount, or both. The intent of the legislature behind such an offence was that if a person has issued a cheque for payment to somebody, in that case he should respect such action and if he fails to make the payment due to insufficiency of funds then he would be criminally tried.

Presenting cheque again by date change by drawer can lead to cheque bounce case

By

Alabhya Dhamija

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Oct 17, 2018

Cheque bounce case

Section 138 of the Negotiable Instruments Act, 1881 makes the dishonor of a cheque a punishable offence with the maximum punishment of two years, or fine, or with both.

Death of Complainant in Cheque Bouncing 138 N.I. Act Complaint case

By

Alabhya Dhamija

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Oct 15, 2018

Cheque

A case under Section 138 of the Negotiable Instruments Act, 1881 is filed when a cheque bounces and is dishonored. It is an offence punishable with imprisonment upto two years, or with fine upto twice the cheque amount, or both.

Section 33 of the Arbitration & Conciliation Act, 1996: Correction and Interpretation of Award; Additional Award

By

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Oct 9, 2018

Arbitration

Preface:

Section 33 of the Arbitration & Conciliation Act, 1996, is similar to Section 152 of the Code of Civil Procedure, 1908 as the latter provision also speaks of correction of judgments or decrees or orders on account of clerical or arithmetical mistakes or errors arising from accidental slip or omission. Section 33 of the A & C Act essentially is in two parts. One part speaks of and deals with what is known as an additional award on account of the arbitral tribunal omitting to deal with certain claims which have been made before it and which aspect is the subject matter of Section 33(4) of the A & C Act, 1996 with the related sub-sections being sub-sections (5) to (7) of Section 33 of the A & C Act, 1996.

Coitus Per OS and ‘Against the Order of Nature’: Section 377 of the Indian Penal Code, 1860

By

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Oct 9, 2018

Justice

“A final answer to the question ‘what is a crime?’, is impossible, because law is a living, changing thing, which may at one time be uniform, and at another time give much room for judicial discretion, which may at one time be more specific in its prescription and at another time much more general.”- Roscoe Pound

‘Forgery’ and ‘Making of False Documents’: Sheila Sebastian V/s R. Jawaharaj & Anr. (Criminal Appeal Nos. 359-360 of 2010)

By

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Oct 7, 2018

Document

Preface:

Section 463 of the Indian Penal Code, 1860 defines the offence of forgery and Section 464 of the Indian Penal Code, 1860 substantiates the same by providing an answer as to when a false document could be said to have been made for the purpose of committing an offence of forgery under Section 463 of the Indian Penal Code, 1860. Therefore, it can be stated that, Section 464 of the Indian Penal Code, 1860 defines one of the ingredients of forgery, that is, making of a false document.

Employee of PSU exempt from examination u/s 200(a) CrPC in 138 NI Act case

By

Alabhya Dhamija

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Oct 5, 2018

Cheque bounce case

In a complaint case filed before a Magistrate for which the magistrate is empowered to take cognizance under Section 190 of the Criminal Procedure Code, the magistrate while taking the cognizance of an offence shall examine the complainant and any witnesses present on oath. The reason for such examination is to see whether a prima facie case is made against the accused person and to prevent the issue of process on a complaint which is either false or vexatious or intended only to harass such person.^[1]

Doctrine of ‘Relative Impotency’ in matters of annulment of marriage

By

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Oct 2, 2018

Divorce

In the matter of: Sanu V/s Sandeep (Mat. Appeal No. 491 of 2018, High Court of Kerala, Date of Decision: 01.08.2018, Coram: C.K. Abdul Rehim & R. Narayana Pisharadi, JJ.) it was held that:

Doctrine of ‘Interlocutory Mandatory Injunction’ & Principle of ‘Moulding of Relief’: Analysis

By

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Oct 1, 2018

Justice

Preface:

The relief of interlocutory mandatory injunctions are granted generally to preserve/restore the status quo of the last non-contested status which preceded the pending controversy until the final hearing when full relief may be granted or to compel the undoing of those acts that have been illegally done or the restoration of that which was wrongfully taken from the party complaining.

Doctrine of Part Performance & Specific Performance of Contract: Agreement to Sell, Sale Deed and the Formality of Registration

By

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Sep 22, 2018

Tilak Marg

Preface:

It is a settled proposition of law that, an agreement of sale comes into existence when the vendor agrees to sell and the purchaser agrees to purchase, for an agreed consideration on agreed terms. It can be oral. It can be by exchange of communications which may or may not be signed. It may be by a single document signed by both parties. It can also be by a document in two parts, each party signing one copy and then exchanging the signed copy as a consequence of which the purchaser has the copy signed by the vendor and a vendor has a copy signed by the purchaser. It can also be by the vendor executing the document and delivering it to the purchaser who accepts it.[1]

Can accused produce additional evidence during appeal against his conviction?

By

Dr. Ashok Dhamija

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Sep 13, 2018

Tilak Marg

Question: If an accused person has been convicted in a criminal case and he has filed appeal against his conviction in the appellant court, then will it be permissible for him to adduce additional evidence during the appeal stage, which can prove his innocence?

What happens to pending corruption cases under Section 13(1)(d) of PC Act after its repeal in 2018 Amendment?

By

Dr. Ashok Dhamija

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Sep 10, 2018

Corruption

Recently, several amendments have been made to the Prevention of Corruption Act, 1988, through the Prevention of Corruption (Amendment) Act, 2018. One of the amendments is the repeal of Section 13(1)(d). This was the most used provision under the Prevention of Corruption Act, 1988. However, Section 13(1)(d) has now been repealed. The new amendments have come into force with effect from 26 July 2018.

Can a poor person stand surety in bail matters without having property documents?

By

Dr. Ashok Dhamija

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Sep 1, 2018

Tilak Marg

Question: Sir, I’m an advocate practising in the magistrate’s Court. I have seen that sometimes, the court does not accept surety of a poor person because he is not able to produce any property document or any fixed deposit or any registration certificate of the vehicle, etc. Is there a way out? Can a poor person stand surety in bail matters without having property documents or RC of a vehicle or fixed deposit etc.?

Does police officer have power to return property seized by him during investigation?

By

Dr. Ashok Dhamija

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Aug 31, 2018

Police Station

Question: My car has been seized by the police after a minor accident took place. When I requested the police to return my car, they’re asking me to obtain order from the court. The investigating officer told me that he does not have the power to return the car to me directly and that only the court has the power to return the property seized by police. My question is whether the investigating officer of the police department has no power to return the property, such as the car, which has been seized by him during investigation?

Can High Court frame questions of law in second appeal after admission at the time of hearing?

By

Dr. Ashok Dhamija

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Aug 28, 2018

Supreme Court

Question: Once the High Court has already framed substantial questions of law in a second appeal under Section 100 of the Civil Procedure Code at the time of admission of such appeal, is it legally permissible for the High Court to frame additional / new substantial questions of law after admission of the appeal at the time of the final hearing of the case?

Permission to file a written statement after maximum period of 90 days in a civil suit

By

Dr. Ashok Dhamija

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Aug 28, 2018

Tilak Marg

Question: Is it permissible for the court to permit filing of the written statement by the defendant in a civil suit beyond the maximum period of 90 days permissible under Order 8 Rule 1 of the Civil Procedure Code?

Challenge to an arbitral award makes the operational debt owed ‘disputed’: The Insolvency & Bankruptcy Code, 2016

By

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Aug 27, 2018

Insolvency and Bankruptcy Code

Preface:

In the matter of: K. Kishan V/s M/s Vijay Nirman Co. Pvt. Ltd. (Supreme Court of India, Civil Appeal No. 21824/2017, Date of Decision: 14.08.2018, Coram: R.F. Nariman & Indu Malhotra, JJ.) the question of law that came up for adjudication before the Hon’ble Supreme Court of India was, “…whether the Insolvency and Bankruptcy Code, 2016 (hereinafter referred to as “the Code”) can be invoked in respect of an operational debt where an Arbitral Award has been passed against the operational debtor, which has not yet been finally adjudicated upon?…”

Can Fundamental Rights be waived?

By

Alabhya Dhamija

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Aug 25, 2018

Justice

The Constitution of India guarantees certain fundamental rights to its citizens which are enshrined in Part III of the Constitution. These rights are subject to various limitations meaning thereby that these rights are not absolute and are subject to certain exceptions. Most of these rights are enforceable against the state and even the state is not empowered to take away these rights by way of any law, as has been provided under Article 13. So, does this mean that the Fundamental Rights cannot be breached and are they absolute?

Theory of confirmation by subsequent facts: Section 27 of the Indian Evidence Act, 1872

By

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Aug 18, 2018

Supreme Court

In the matter of: Navaneethakrishnan V/s The State by Inspector of Police, Criminal Appeal No. 1134/2013 (Supreme court of India, Date of Decision: 16.04.2018, Coram: A.K. Sikri & R.K. Agrawal, JJ.) it was held that, Section 27 of the Indian Evidence Act, 1872 incorporates the theory of confirmation by subsequent facts, that is, statements made in police custody are admissible to the extent that they can be proved by subsequent discovery of facts. Discovery statements made under Section 27 of the Indian Evidence Act, 1872 can be described as those which furnish a link in the chain of evidence needed for a successful prosecution.

Reality of E-filing in Supreme Court

By

Alabhya Dhamija

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Aug 17, 2018

Supreme Court

On 8^th May 2017, a huge reform was announced in the Indian Judicial System. It was announced by the then Hon’ble Chief Justice of India J.S. Khehar, Hon’ble Mr. Justice Dipak Mishra (as he then was) and Hon’ble Mr. Justice A.M. Khanwilkar in the Supreme Court Bar Association Bar room to the Supreme Court Advocates and Advocates-on-record present there.

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