Can Magistrate direct investigation under S. 156(3) CrPC when private complaint filed under S. 190, 200?

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Jun 2, 2018

Question: I had filed a private complaint in the court of Magistrate under Section 190 / 200 of the Criminal Procedure Code (Cr.P.C.) for an offence of cheating under Section 420 IPC. However, instead of taking cognizance of the offence alleged in the above private complaint, the Magistrate directed the police under Section 156(3) of the Cr.P.C. for investigation and report within a period of 3 months? I did not make a request for such investigation by police while filing such private complaint (since I doubt police involvement with accused persons). Can a Magistrate direct investigation under Section 156(3) Cr.P.C. even where a private complaint is filed under Section 190, 200 of the Cr.P.C.?

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Can a registered will be proved by production of the certified copy thereof?

By

Dr. Ashok Dhamija

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Jun 1, 2018

Question: A will is registered but its original copy is with the opposite party who is trying to hide it since it is against the interests of such opposite party. In these circumstances, if I am the beneficiary of the will, can I prove this registered will by producing its certified copy?

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Validity of contract mandating that only amount awarded in arbitration be recoverable

By

Dr. Ashok Dhamija

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May 25, 2018

Question: A contract has a condition that if any dispute arises between two parties, then such dispute shall be referred to arbitration and the amount awarded in such arbitration only can be recovered and no other amount can be recovered. It also says that no other legal proceedings can be filed (i.e., other than the arbitration) in respect of such dispute. My question is whether such contract is valid which does not allow any other legal proceedings, other than the arbitration? Is it not like taking the rights of the party under contract?

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Can a Magistrate direct CBI investigation under Section 156(3) Cr.P.C.?

By

Dr. Ashok Dhamija

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May 25, 2018

Question: Sir, can a CBI investigation into an offence be directed by a Magistrate in exercise of his powers under Section 156(3) of the Criminal Procedure Code?

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Non Grant of Anti-Suit Injunction: Dinesh Singh Thakur Vs. Sonal Thakur (Supreme Court Of India, Civil Appeal No. 3878/2018)

By

Shivam Goel

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May 24, 2018

Preface:

This article is in the nature of a case study albeit the decision rendered by the Hon’ble Supreme Court of India in the matter of: Dinesh Singh Thakur Vs. Sonal Thakur[1], whereby the Apex Court in a matter concerning matrimonial discord refused to exercise its power of granting anti-suit injunction to stay the proceedings initiated by the respondent-wife (hereinafter referred to as ‘W’) in the Circuit Court of the Sixth Judicial Circuit in and for Pinellas County, Florida (USA) for grant of divorce on the ground of irretrievable breakdown of marriage and other reliefs, despite the fact that the appellant-husband (hereinafter referred to as ‘H’) had already filed a petition being HMA No. 601/2016 under Sections 13 and 26 of the Hindu Marriage Act, 1955 in the Family Court (Gurgaon, India).

Facts of the Case:

The facts of the case lie in a narrow compass and can be summarised as under:

H and W got married on 20.02.1995 as per Hindu rites and ceremonies and two children were born out of the wedlock.
At the time of marriage H was working in USA and post the marriage H took W to USA on dependent visa.
H and W got the citizenship of USA in May, 2003 and later in June, 2003, both H and W obtained the PIO (Persons of Indian Origin) status.
In July, 2006, H and W obtained the OCI (Overseas Citizens of India) status.
In the year 2016, H filed a petition (being HMA No. 601/2016) before the Family Court (Gurgaon, India) for seeking divorce under Sections 13 and 26 of the Hindu Marriage Act, 1955 against W.
Pending adjudication of HMA No. 601/2016, W filed a petition (being Case No. 2016-008918-FD) before the Circuit Court of the Sixth Judicial Circuit in and for Pinellas County, Florida, USA for seeking divorce on the ground of irretrievable breakdown of marriage and other reliefs.
H preferred a civil suit (being Civil Suit No. 15/2016) under Section 7 of the Hindu Marriage Act, 1955 before the District Judge, Family Court (Gurgaon, India) for availing the relief of permanent injunction and declaration inter alia to restrain W from pursuing the petition for grant of divorce before the Court in USA.
The Hon’ble District Judge, Family Court (Gurgaon, India) vide its order dated: 26.09.2016, granted an ex parte ad interim injunction in favour of H as against W, thereby restraining W from pursuing the petition for grant of divorce filed by her in the Court in USA.
W filed an application for vacation and modification of order dated: 26.09.2016.
The Hon’ble District Judge, Family Court (Gurgaon, India) vacated the ex parte ad interim injunction granted by it to H vide its order dated: 26.09.2016 by allowing the application filed by W for vacation of stay order on 18.10.2016.
Against the order dated: 18.10.2016 of the Hon’ble District Judge, Family Court (Gurgaon, India), H preferred a revision petition before the Hon’ble Punjab & Haryana High Court (being CR No. 7190/2016).
The Ld. Single Judge of the Punjab & Haryana High Court vide its order dated: 03.11.2016 dismissed the revision petition preferred by H.
Against the order dated: 03.11.2016 of the Ld. Single Judge of the Punjab & Haryana High Court, H preferred a special leave petition (being Special Leave Petition (Civil) No. 10078/2018) to the Hon’ble Supreme Court of India.
The Hon’ble Supreme Court of India was pleased to dismiss the appeal (Civil Appeal No. 3878/2018) preferred by H as against W, thereby upholding the decision rendered by the Ld. Single Judge of the Punjab & Haryana High Court.

Arguments preferred by H before the Hon’ble Supreme Court of India for grant of anti-suit injunction:

That W preferred petition for divorce before the Court in USA after H had already preferred divorce petition under Sections 13 and 26 of the Hindu Marriage Act, 1955 before the Family Court in Gurgaon (India).
W was served with the copy of the divorce petition in the matter listed before the Family Court (Gurgaon, India) on 04.08.2016 and on 16.09.2016 W had entered her appearance in the matter, thus, W had acceded to the jurisdiction of the Family Court (Gurgaon, India).
Filing of the divorce petition in the Court in USA after receipt of notice in the divorce petition filed by H in India is an abuse of process of law and amounts to multiplicity of proceedings.
W along with minor children had been residing in India since 2003. W was residing at Gurgaon, thus, the Court at Gurgaon was the forum convenient to both the parties to the proceeding, namely, H and W.
W had sought a decree of divorce from the Court in USA on the ground of irretrievable breakdown of marriage which in fact is not a ground for the granting of divorce under the Hindu Marriage Act, 1955.
As per Section 41(a) of the Specific Relief Act, 1963 anti-suit injunction can be granted to prevent multiplicity of proceedings.

Arguments preferred by W before the Hon’ble Supreme Court of India for the non-grant of anti-suit injunction:

Divorce petition preferred by W in the Court of USA was not only for dissolution of marriage between H and W but was for claiming various other reliefs, namely, equitable distribution of marital assets, child support, alimony, partition and other reliefs which were otherwise not available under the Indian Law.
According to Section 41(b) of the Specific Relief Act, 1963, an injunction cannot be granted to restrain any person from instituting or prosecuting any proceeding in a court not subordinate to that from which the injunction is sought.
Before passing an order of anti-suit injunction, the court has to act very cautiously and such an order is not to be granted as a matter of routine as such orders involve a court impinging on the jurisdiction of another court. The court has to act more cautiously if an order of anti-suit injunction is sought to restrain parties from instituting or continuing a case in a foreign court.

Legal principles governing the grant of anti-suit injunction:

An anti-suit injunction is a judicial order restraining a party to a suit or proceeding from instituting or prosecuting a case in another court, including a foreign court. The legal principles which govern the grant of ‘injunction simpliciter’ and ‘anti-suit injunction’ are the same, namely, (i) good prima facie case being made out in favour of the plaintiff as against the defendant, (ii) balance of convenience being in favour of the plaintiff as against the defendant, and (iii) irreparable loss likely to be caused to the plaintiff in case the order of injunction is not granted in favour of the plaintiff as against the defendant.

The Hon’ble Supreme Court of India in the matter of: Modi Entertainment Network & Anr Vs. WSG Cricket PTE Ltd.[2] laid down the following principles which govern the grant of anti-suit injunction in a given case:

If the defendant against whom injunction is sought is amenable to the personal jurisdiction of the court from which the order of injunction is sought, then, anti-suit injunction can be granted, however, this factor is not the sole criteria.
If the grant of anti-suit injunction is declined then the ends of justice will be defeated and injustice will be perpetuated.
The principle of comity, that is, respect for the court in which the commencement or continuation of action or proceeding is sought to be restrained, must be borne in mind.

Dictum in the matter of: Y. Narasimha Rao & Ors Vs. Y. Venkata Lakshmi & Anr.[3]:

In the matter of Y. Narasimha Rao (Supra) the Hon’ble Supreme Court of India held as follows:

For recognising foreign matrimonial judgment in India the following considerations must weigh: (a) the jurisdiction assumed by the foreign court as well as the grounds on which the relief is granted by it must be in accordance with the matrimonial law under which the parties (the husband and the wife) had got married; (b) the matrimonial action can be filed in the forum where the respondent-spouse is domiciled or habitually (and permanently) resides, however, the relief is to be granted on a ground available in the matrimonial law under which the parties (the husband and the wife) had got married; (c) if matrimonial action has been instituted in a foreign court and the respondent-spouse voluntarily and effectively submits to the jurisdiction of the foreign court and contests the claim which is based on a ground available under the matrimonial law under which the parties (the husband and the wife) had got married, then, no fault can be found with the relief granted by the foreign court; and (d) no fault can be found with the exercise of jurisdiction by a foreign court if the respondent-spouse consents to the grant of relief by the foreign court even if the jurisdiction of the foreign court is not in accordance with the provisions of the matrimonial law governing the parties (the husband and the wife) to the dispute.
It is legally incorrect to state that wife’s domicile follows that of her husband and that it is the husband’s domiciliary law which determines the jurisdiction of the court and judges the merits of the case in a matrimonial dispute.

Dictum of the Hon’ble Supreme Court of India:

The Hon’ble Court after taking stock of the facts and circumstances of the case declined to issue an order of anti-suit injunction in favour of H as against W and held as follows-

W is amenable to the personal jurisdiction of the Family Court (Gurgaon, India) owing to the fact that she (along with her minor children) had been ordinarily residing in India. However, the fact that cannot be ignored is that, H placed nothing on record to hold that H would suffer grave injustice if the injunction is not granted.
Both H and W are permanent citizens of USA, thus, undisputedly, the Circuit Court (Florida, USA) also has concurrent jurisdiction in this case.
H has been residing in USA since 2007 and the proceedings for grant of anti-suit injunction had been initiated by H in India (Family Court, Gurgaon) through another person by empowering that person to file, institute and pursue the litigation on his behalf vide a power of attorney.
The mere fact that W has filed a petition for grant of divorce in the Circuit Court (Florida, USA) on the ground of irretrievable breakdown of marriage, which in fact is not a ground available to her under the Hindu Marriage Act, 1955, does not mean that there is likelihood of her being succeeding in getting a decree for divorce. H had already raised this contention before the Circuit Court (Florida, USA) and both H and W were granted liberty to lead evidence with regard to the question whether their marriage is governed by the Hindu Marriage Act, 1955 or any other law.
Foreign Court cannot be presumed to be exercising its jurisdiction wrongly even if H is able to prove that both H and W continue to be governed by the law applicable to the Hindus as prevailing in India.
Courts in India like the Courts of England are Courts of law and equity. Courts in India have the power to issue anti-suit injunction to a party over whom it has personal jurisdiction in an appropriate case, this is because Courts of equity exercise jurisdiction in personam. The power to issue anti-suit injunction has to be exercised sparingly and cautiously. The injunction is directed at the respondent and not at the judge in the foreign court.

[1] Civil Appeal No. 3878/2018, Supreme Court of India, Date of Decision: 17.04.2018 (Coram: R.K. Agarwal & R. Banumathi, JJ.)

[2] 2003 (4) SCC 341

[3] (1991) 3 SCC 451

SC asks Mata Vaishno Devi Shrine Board to consider rehabilitation of Mule owners

By

Alabhya Dhamija

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May 9, 2018

The Supreme Court of India comprising a bench of Justice Madan B. Lokur and Justice Deepak Gupta, on 3^rd May 2018, has asked the Mata Shri Vaishno Devi Shrine Board to look into the matter of rehabilitation of the Mule owners dispassionately and in a humanitarian manner since the Mule owners have been carrying pilgrims to the Shrine on a daily basis for several years.

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SC grants compensation despite no quantification based on actual loss

By

Alabhya Dhamija

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May 9, 2018

The Supreme Court of India, comprising a bench of Justice J. Chelameswar and Justice Sanjay Kishan Kaul has directed the Ministry of External Affairs to pay a compensation of Rs. 5 lakh to Private Tour Operators conducting the travel business for Hajj and Umrah.

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Supreme Court says no to government bungalow for former UP CMs

By

Alabhya Dhamija

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May 8, 2018

The Supreme Court of India, comprising a bench of Justice Ranjan Gogoi and Justice R. Banumathi in the case of Lok Prahari Through Its General Secretary v. State of Uttar Pradesh and Ors. has struck down Section 4(3) of Uttar Pradesh Ministers (Salaries, Allowances and Miscellaneous Provisions) Act, 1981 whereby a former Chief Minister of Uttar Pradesh could be allotted a government residence for his/her lifetime. Such person, who is a former Chief Minister of UP, is allotted the government residence subject to payment of rent, as is determined by the Estate Department of the State Government.

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Hue and cry against returning recommendation of Justice Joseph’s elevation to Supreme Court is wholly unjustified

By

B.L. Pavecha

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May 8, 2018

As per the opinion of constitutional expert Seervai the collegium system evolved by a majority judgment of the Supreme Court is null and void being against the content and intent of the Constitution. As per the dissenting opinion of Justice Punchhi (as he then was) it is rewriting the constitution by reading “consent” in place of “consultation” which is impermissible in law.

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‘Cognizance of Offence’ Versus ‘Cognizance of Accused’: The Negotiable Instruments Act, 1881

By

Shivam Goel

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May 8, 2018

1. Preface:

1.1. In ordinary parlance, the word ‘cognition’ means ‘faculty of knowing’ and ‘cognizable’ means capable of being taken cognizance of.[1] Similarly, the word ‘cognizance’ means ‘judicial notice or knowledge’ or ‘the judicial recognition or hearing of a cause’ or ‘jurisdiction or right to try and determine causes’. Thus, the word ‘cognizance’ is a word of the largest import, embracing all power, authority and jurisdiction. The word ‘cognizance’ is used in the sense of the right to take notice of and determine a cause. Taking cognizance does not involve any formal action, or indeed action of any kind, but occurs as soon as a Magistrate, as such, applies his mind to the suspected commission of an offence.[2]

1.2. In the matter of, Darshan Singh v. State of Maharashtra[3], the Hon’ble Supreme Court of India held that, cognizance takes place at a point when a Magistrate takes judicial notice of an offence and this is the position whether the Magistrate takes cognizance of an offence on a complaint, or on a police report, or upon information of a person other than a police officer.[4] Similarly, in the matter of, Ajit Kumar v. State of West Bengal[5], the Hon’ble Supreme Court of India held that, the word ‘cognizance’ has no esoteric or mystic significance in criminal law or procedure for it merely means ‘to become aware of’ and when used with reference to a court or judge it means ‘to take notice of judicially’. Also, in the matter of, Narayandas Bhagwandas Madhavdas v. State of West Bengal[6], contemplating on the concept of ‘taking cognizance’, the Hon’ble Supreme Court of India held that, as to when cognizance is taken of an offence depends upon the facts and circumstances of each case and it is impossible to attempt to define what is meant by taking cognizance. The issuing of a search warrant for the purpose of an investigation or of a warrant of arrest for that purpose cannot by itself be regarded as an act by which cognizance is taken of an offence.

1.3. When a Magistrate decides to not to take cognizance of an offence or drop proceedings against some persons mentioned in the first information report then he must give notice and first hear the informant.[7]

1.4. The matters of which the courts take judicial cognizance require no formal proof though they are not formally admitted and these matters include the matters of law and of fact. It is important to note that, at the time of taking cognizance of the offence, the court has to consider only the averments made in the complaint or in the charge-sheet (filed under Section 173 of the Code of Criminal Procedure, 1973), as the case may be, hence, it is not open for the court to sift or appreciate the evidence at that stage with reference to the material and come to the conclusion that no prima facie case is made out for proceeding further in the matter.

1.5. According to Section 40 of the Indian Evidence Act, 1872, the word ‘cognizance’ means, the legal right to deal with a matter, jurisdiction or the hearing and trying of a cause.

1.6. In the matter of, Kishun Singh v. State of Bihar[8], the Hon’ble Supreme Court of India held that, although the expression ‘take cognizance’ is not defined in the Code of Criminal Procedure, 1973, it is settled law that when the Magistrate takes notice of the accusations and applies his mind to the allegations made in the complaint, or police report, or information, and on being satisfied that the allegations, if proved, would constitute an offence decides to initiate judicial proceedings against the alleged offender, he is said to have taken cognizance of the offence. Cognizance is in regard to the offence and not the offender. Similarly, in the case of, State of West Bengal & Anr v. Mohd. Khalid & Anr[9], it was held that, the word ‘cognizance’ indicates the point when a Magistrate or a Judge first takes judicial notice of an offence. It is entirely a different thing from initiation of proceedings rather it is the condition precedent to the initiation of proceedings by the Magistrate or the Judge. Cognizance is taken of the cases and not of persons. It has, thus, reference to the hearing and determination of the case in connection with an offence.

1.7. Taking cognizance of an offence is not the same thing as issuance of process. Cognizance is taken at the initial stage when the Magistrate applies his judicial mind to the facts mentioned in a complaint, or to a police report, or upon information received from any other person that an offence has been committed. The issuance of process is at a subsequent stage when after considering the material placed before it the court decides to proceed against the offenders against whom a prima facie case is made out.[10]

1.8. If a Magistrate takes cognizance of an offence and issues process, without there being any allegations against the accused or any material implicating the accused, then the order of the Magistrate is no doubt faulty, however, the remedy with the accused lies in invoking Section 482 of the Code of Criminal Procedure, 1973 praying the Hon’ble High Court to quash the summoning order issued against the accused, this is so because a Magistrate under the Code of Criminal Procedure, 1973 has no power to recall its order of summoning.[11]

2. Scheme of the Code of Criminal Procedure, 1973:

2.1. The Code of Criminal Procedure, 1973 is an enactment which is designed to regulate the procedures governing the investigation of crimes in order to get the perpetrators of the crime punished. A crime is an act or omission prohibited by law attracting certain legal consequences like: imprisonment, fine or both.

2.2. The Code of Criminal Procedure, 1973 imposes a duty on the investigating agencies to accumulate necessary evidence to establish the occurrence of a crime and to trace out the real perpetrators of the crime in order to get them reprimanded. Punishment is to be inflicted only by a competent court and not by the investigating agency.

2.3. The court of law is authorised to inflict punishment upon the accused, only if it is satisfied that the evidence gathered by the investigating agency is sufficient to establish: (a) that crime had been committed, and, (b) the persons charged with the offence and brought before the court by the investigating agency for trial are the real perpetrators of the crime.

2.4. Under the Code of Criminal Procedure, 1973, an investigating agency is bound to investigate into an offence by complying with the procedure enumerated in the Code of Criminal Procedure, 1973 once either information regarding the commission of a cognizable offence is received by it, or, an order is passed by the Magistrate to investigate into the allegation of the commission of a non-cognizable offence.

2.5. The investigating agency is required to submit a report under Section 173 of the Code of Criminal Procedure, 1973, upon the completion of investigation. Section 173 (2) (i) (d) of the Code of Criminal Procedure, 1973 inter alia stipulates that the report should contain a statement as regards, whether any offence appears to have been committed and if so, by whom?

2.6. The conclusions arrived at by the investigating agency are scrutinised by the court, and, it is only after the court is satisfied that the evidence collected by the investigating agency is sufficient in law to punish the accused that such an accused is punished.

2.7. Taking cognizance of an offence by the court is one of the initial steps in the process. Once cognizance is taken by the court of an offence, the investigating agency is then required to collect evidence and place the same before the court under Section 173 of the Code of Criminal Procedure, 1973.

3. Scheme of prosecution under Section 138 of the Negotiable Instruments Act, 1881:

3.1. The objective of the proceedings of Section 138 of the Negotiable Instruments Act, 1881 is that the cheques should not be used by persons as a tool of dishonesty and once a cheque is issued by a person, it must be honoured by him, but, if it is not honoured, then the person must be given an opportunity to pay the cheque amount by issuance of a legal notice of demand and if the person still does not pay, then he must be made to face the criminal trial and the legal consequences flowing therefrom.[12]

3.2. An offence under Section 138 of the Negotiable Instruments Act, 1881 is to be tried by Judicial Magistrate of First Class (JMFC) or Metropolitan Magistrate (MM) in accordance with the summary trial provisions contained in the Code of Criminal Procedure, 1973, that is, from Section 262 to Section 265 (both inclusive).

3.3. Section 143 of the Negotiable Instruments Act, 1881 provides that in case of conviction of an accused under Section 138 of the Negotiable Instruments Act, 1881 following the procedure of ‘summary trial’, it shall be lawful for the Magistrate to pass a sentence of imprisonment of up to 1 (one) year and a fine exceeding Rs. 5000/-.

3.4. Section 143 of the Negotiable Instruments Act, 1881 further provides that, if at the commencement or during the course of the ‘summary trial’, the Magistrate finds that owing to the nature of the case, a sentence of imprisonment exceeding 1 (one) year may have to be passed or else the Magistrate comes to the conclusion that the case should not be tried summarily, then, it is incumbent upon the Magistrate to pass an order (after hearing the parties to the complaint) giving reasons as to why the case should not be tried summarily but as a ‘summons trial’. Once the Magistrate takes the decision of trying the case as ‘summons trial’ instead of ‘summary trial’ then he shall be at liberty to recall the witnesses who may have although already been examined.

3.5. According to Section 145 of the Negotiable Instruments Act, 1881, the evidence of the complainant in a proceeding under Section 138 of the Negotiable Instruments Act, 1881 may be given by him by way of an affidavit and such an affidavit is to be read in evidence in any inquiry, trial or other proceedings in the court. Thus, a complainant in a proceeding under Section 138 of the Negotiable Instruments Act, 1881 need not examine himself twice, that is, first, after the filing of the complainant, and, second, after summoning of the accused. Hence, the affidavit and the complaint along with the relevant documents filed by the complainant are good enough evidence for both the stages (pre-summoning and post-summoning) of the trial albeit an offence committed under Section 138 of the Negotiable Instruments Act, 1881.

3.6. The complainant is not required to be recalled and re-examined after summoning of the accused, however, according to Section 145 (2) of the Negotiable Instruments Act, 1881, the court may, if it thinks fit, and shall, on the application of the prosecution or the accused, summon and examine any person giving evidence on affidavit as to the facts contained therein.

3.7. Summary trial procedure to be followed as regards the offences committed under Section 138 of the Negotiable Instruments Act, 1881[13]:

i. On the day the complaint under Section 138 of the Negotiable Instruments Act, 1881 is presented by the complainant to the concerned jurisdictional Magistrate (JMFC/MM) and if the complaint is accompanied by an affidavit by way of evidence of the complainant, the Magistrate (JMFC/MM) shall scrutinize the complaint, evidence affidavit and other documents filed by the complainant, and, if the commission of the offence under Section 138 of the Negotiable Instruments Act, 1881 is made out, then the Magistrate shall take cognizance of the offence under Section 138 of the Negotiable Instruments Act, 1881 and shall direct the issuance of the summons to the accused.

ii. If the accused appears on the summons issued to him, the Magistrate shall ask the accused to furnish bail bond to ensure his appearance during the trial and shall further ask him to take notice under Section 251 of the Code of Criminal Procedure, 1973 and enter his plea of defence (Section 263 (g) of the Code of Criminal Procedure, 1973). Thereafter, the Magistrate is to fix the case for defence evidence, unless application is preferred by the accused under Section 145 (2) of the Negotiable Instruments Act, 1881 for recalling a witness (complainant or any other prosecution witness) for cross examination on the plea of defence.

iii. If an application under Section 145 (2) of the Negotiable Instruments Act, 1881 is preferred by the accused then the Magistrate shall decide the same, otherwise, the Magistrate shall proceed to take defence evidence on record and allow the complainant to cross examine the defence witnesses.

iv. Once the stage of evidence is over, the matter is fixed for final arguments (to be led by both sides).

v. Once the final arguments are led by both sides, the Magistrate shall decide the complaint on merits, resulting in the passing of the requisite order/judgment.

3.8. Ingredients essential to attract prosecution under Section 138 of the Negotiable Instruments Act, 1881:

i. A cheque must have been issued by the accused in favour of the complainant for discharge of a legally enforceable debt or liability.

ii. The cheque must have been presented to the bank by the complainant within a period of 3 (three) months from the date on which it is drawn or within the period of its validity, whichever is earlier.

iii. The cheque has been returned by the bank as dishonoured for any of the reasons namely, insufficient funds, or payment stopped, or account closed by the drawer etc.

iv. The complainant should make a demand for the payment of the cheque amount by giving a notice of demand in writing to the accused (drawer of cheque) within 30 (thirty) days of receipt of information by the accused from the bank regarding the return of the cheque as unpaid;

v. If the accused fails to pay the cheque amount within 15 (fifteen) days of the receipt of the legal notice of demand, then, the complainant can prefer a complaint under Section 138 of the Negotiable Instruments Act, 1881 within a period of one month starting from the lapse of the 15 (fifteen) days period post the receipt of the legal notice of demand by the accused.

3.9. Punishment for the offence committed under Section 138 of the Negotiable Instruments Act, 1881: Imprisonment for a term which may extend to 2 (two) years, or with fine which may extend to twice the amount of the cheque, or with both.

3.10. Disclosure of the name of the person drawing the cheque is one of the factual allegations which a complaint is required to contain. In absence of any authority of law providing for investigation of an offence committed under Section 138 of the Negotiable Instruments Act, 1881, there would in fact be no person against whom the court can proceed, and undoubtedly, there cannot be any prosecution without there being an accused. Section 142 of the Negotiable Instruments Act, 1881 does not authorise the court taking cognizance of the offence committed under Section 138 of the Negotiable Instruments Act, 1881 to direct the police to investigate into the complaint.

4. Dictum in the matter of: Aneeta Hada v. Godfather Travels & Tours (P) Ltd., (2012) 5 SCC 661:

4.1. In the matter of Aneeta Hada (Supra), the question that came up for adjudication before the Hon’ble Supreme Court of India was: ‘Whether an authorised signatory of a company would be liable for prosecution under Section 138 of the Negotiable Instruments Act, 1881 without the company being arraigned as an accused?’

4.2. It was held that, in terms of Section 141 of the Negotiable Instruments Act, 1881, arraigning of a company as an accused is imperative. The observations of the Hon’ble Supreme Court in Para 59 are noteworthy and are extracted hereunder:

“59. In view of our aforesaid analysis, we arrive at the irresistible conclusion that for maintaining the prosecution under Section 141 of the Act, arraigning of a company as an accused is imperative. The other categories of offenders can only be brought in the drag-net on the touchstone of vicarious liability as the same has been stipulated in the provision itself…”

5. Dictum in the matter of: N. Harihara Krishnan v. J. Thomas, Criminal Appeal No. 1534 of 2017, Date of Decision: 30.08.2017 (Supreme Court of India):

5.1. Facts: Complainant (J. Thomas) was the power of attorney holder of M/s. Norton Granites & Spinners (P) Ltd. Accused (N. Harihara Krishnan) was the Managing Partner of M/s. Srivari Exports (a partnership firm) and Director of M/s. Dakshin Granites (P) Ltd. Complainant had sold three parcels of land by three separate registered sale deeds to M/s. Srivari Exports. Accused drew a cheque in favour of the complainant in discharge of the liability. The cheque was drawn by the accused on the account of M/s. Dakshin Granites (P) Ltd. There was no dispute as regards the fact that the cheque was drawn on account of M/s. Dakshin Granites (P) Ltd., as under the provisions of the Indian Contract Act, 1872, consideration can be furnished even by a third party to the contract. The cheque issued by the accused returned dishonoured. Complaint was filed by the complainant against the accused under Section 138 of the Negotiable Instruments Act, 1881 without impleading M/s. Dakshin Granites (P) Ltd. Later an application under Section 319 of the Code of Criminal Procedure, 1973 was preferred by the complainant to implead M/s. Dakshin Granites (P) Ltd. as an accused.

5.2. Question that arose for adjudication: Can the complainant be allowed to implead M/s. Dakshin Granites (P) Ltd. by preferring an application under Section 319 of the Code of Criminal Procedure, 1973?

5.3. Timeline of Events:

i. Date mentioned on the face of the cheque drawn by the accused on the account of M/s. Dakshin Granites (P) Ltd.: 10.08.2012

ii. Cheque was presented for collection by the complainant through its bank on: 28.08.2012

iii. Date of dishonour of cheque: 30.08.2012

iv. Legal notice of demand was issued by the complainant against the accused on: 10.09.2012

v. Legal notice of demand issued by the complainant was served on the accused on: 14.09.2012

vi. Complaint was filed by the complainant against the accused without impleading M/s. Dakshin Granites (P) Ltd.: 08.10.2012

vii. Application under Section 319 of the Code of Criminal Procedure, 1973 was filed by the complainant to implead M/s. Dakshin Granites (P) Ltd. on: 19.08.2015

5.4. The Hon’ble Supreme Court of India held as follows:

i. The cheque dated 10.08.2012 was drawn by a private company, that is, M/s. Dakshin Granites (P) Ltd. (although a third party to the sale transactions, nonetheless, such a payment is permissible under the provisions of the Indian Contract Act, 1872) and was allegedly signed by the accused in his capacity as the Director of M/s. Dakshin Granites (P) Ltd.

ii. Prosecution of the accused could not be termed as valid in terms of Section 141 of the Negotiable Instruments Act, 1881, without prosecuting the company on whose account the cheque was issued.

iii. The timelines stipulated under clauses (a) to (c) of the proviso to Section 138 of the Negotiable Instruments Act, 1881 are mandatory.

iv. Application to implead M/s. Dakshin Granites (P) Ltd. was preferred on 19.08.2015, that is, after almost 3 years of preferring the complaint against the Director of the company (M/s. Dakshin Granites (P) Ltd).

v. Section 142 of the Negotiable Instruments Act, 1881 stipulates that no court shall take cognizance of any offence punishable under Section 138 of the Negotiable Instruments Act, 1881 unless a complaint is made within a period of one month of the date on which the cause of action arises under clause (c) of the proviso to Section 138 of the Negotiable Instruments Act, 1881.

vi. Although the proviso to Section 142 of the Negotiable Instruments Act, 1881 states that a complaint under Section 138 of the Negotiable Instruments Act, 1881 can be entertained even at a later date than that which is stipulated in clause (b) of Section 142 of the Negotiable Instruments Act, 1881 provided ‘sufficient cause’ is shown. But, to file a complaint against the Director of the company, without impleading the company in the first instance and then later on after almost three years of filing of the complaint moving an application under Section 319 of the Code of Criminal Procedure, 1973 stating that the omission to implead the company in the first instance was not deliberate/wilful but was due to inadvertence, would not satisfy the test of ‘sufficient cause’, and therefore, in all likelihood such an application filed under Section 319 of the Code of Criminal Procedure, 1973 to implead the company would be considered prima facie mischievous and would fail as the prosecution of the company as per the provisions of the Negotiable Instruments Act, 1881 would be nothing but time-barred.

6, Excursus:

6.1. Offence committed under Section 138 of the Negotiable Instruments Act, 1881 is ‘person specific’ and the timeline provided in clauses (a) to (c) of the proviso to Section 138 of the Negotiable Instruments Act, 1881 is mandatory.

6.2. The observation made by the Hon’ble Supreme Court of India in its report, Raghubans Dubey v. State of Bihar[14], to the effect that, “…once cognizance has been taken by the Magistrate, he takes cognizance of an offence and not the offender; once he takes cognizance of an offence it is his duty to find out who the offenders really are and once he comes to the conclusion that apart from the persons sent up by the police some other persons are involved, it is his duty to proceed against those persons…”, is not applicable to an offence committed under Section 138 of the Negotiable Instruments Act, 1881.

6.3. In the context of prosecution under Section 138 of the Negotiable Instruments Act, 1881, the concept of taking cognizance of the offence but not of the offender is not appropriate. Unless the complaint filed by the payee (or the holder in due course of the cheque) contains all the necessary factual allegations constituting each of the ingredients of the offence under Section 138 of the Negotiable Instruments Act, 1881, the Magistrate cannot take cognizance of the offence, namely, dishonour of cheque.

[1] Section 2(c) of the Code of Criminal Procedure, 1973

[2] P. Ramanatha Aiyar’s Concise Law Dictionary, Fifth Edition, Lexis Nexis, p. 214

[3] AIR 1971 SC 2372

[4] Section 190 (1) of the Code of Criminal Procedure, 1973

[5] AIR 1963 SC 765, 770

[6] AIR 1959 SC 1118

[7] Bhagwant Singh v. Commissioner of Police, AIR 1985 SC 1285

[8] (1993) 2 SCC 16

[9] (1995) 1 SCC 684

[10] State of Karnataka v. Pastor P. Raju, (2006) 6 SCC 728

[11] Adalat Prasad v. Rooplal Jindal & Ors, (2004) 7 SCC 338

[12] Rajesh Agarwal v. State & Anr, Crl. M.C. No. 1996/2010 & Crl. M.A. No. 7672/2010, Date of Decision: 28.07.2010 (S.N. Dhingra, J.)

[13] Ibid

[14] AIR 1967 SC 1167

Nothing wrong in Centre’s decision to send back Justice KM Joseph elevation matter for reconsideration by collegium

By

Dr. Ashok Dhamija

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Apr 27, 2018

I am of the considered opinion that the Central Government decision of sending back the name of Justice K.M. Joseph for elevation as Supreme Court judge for reconsideration by the collegium, is a right decision. There are 41+3 = 44 reasons for this.

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Supreme Court judgment in Judge Loya case exposes political vendetta

By

Dr. Ashok Dhamija

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Apr 22, 2018

About 20 years back, when I was posted in Mumbai City Police, a colleague IPS officer posted there was one year junior to me, and was about 37 years of age. He was a tall person of about 6 feet height and was well-built. He was a very lively and active person. He was considered as one of the best IPS officers in Maharashtra cadre. Unfortunately, at the age of 37 years, he had a massive heart attack and died on the spot. He was never diagnosed to be having any symptoms of a heart disease. A prominent chowk in South Mumbai (in Colaba – Cuffe Parade area) was named after him.

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Ill-advised impeachment notice against Chief Justice of India Dipak Misra is bound to fail, it is nothing but blackmailing the judiciary

By

Dr. Ashok Dhamija

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Apr 22, 2018

The impeachment notice given by certain opposition parties, including Congress, against the Chief Justice of India Dipak Misra, is absolutely ill-advised and is bound to fail. This is just blackmailing the judiciary. This is clearly the worst that could have been expected from the Congress. Its own senior members such as former PM Dr. Manmohan Singh have not signed it, and as per media reports, some of the leading lawyers belonging to Congress, who are members of Rajya Sabha, such as Abhishek Singhvi and P. Chidambaram have also not signed this impeachment motion. Former Law Minister Salman Khurshid of Congress has also not supported the idea of impeachment. It clearly shows how divided is Congress itself on this issue. It reflects poorly on Rahul Gandhi, who can perhaps never get good advisers and will always be surrounded by sycophants advising wrong decisions.

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Why the Government cannot withdraw AFSPA from Jammu & Kashmir?

By

Dr. Ashok Dhamija

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Apr 9, 2018

There are many misconceptions about AFSPA. Without understanding what AFSPA is, people start commenting adversely on it.

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CBSE paper leaks – Should Govt dismiss CBSE chief or force him to resign on moral grounds? How can we make this system leak-proof?

By

Dr. Ashok Dhamija

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Apr 8, 2018

I had a simple formula for calculating risk of leakage of some sensitive information. If one person knows an information, the risk is 1 unit. If two persons know it, the risk is not 2 units (i.e., 1+1) but it is 11 units. If three person know the same information, then the risk is not 3 units, but it is 111 units. And, so on. So you see, the risk increases exponentially (and not linearly) when more and more number of people know some information.

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With political parties not interested in ending caste based reservation, is there a way out?

By

Dr. Ashok Dhamija

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Apr 7, 2018

Recently, on 2 April 2018, certain Schedule Caste / Scheduled Tribe organisations called Bharat Bandh, which resulted in mass violence in various parts of the country. Several persons died in the riots. These organisations were protesting against the decision (20 March 2018) of the Supreme Court whereby certain safeguards were laid down for dealing with offences under the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989. With almost all the political parties coming out to support caste-based reservations even in the light of unnecessary mass violence, questions have been raised yet again whether there is a way out of the caste based reservations. Can the caste based reservations ever end in India?

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Genetic Discrimination & Health Insurance: An Analysis

By

Shivam Goel

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Mar 29, 2018

1. Preface:

1.1. According to Order VIII, Rule 6 (3), Illustration (c) of the Code of Civil Procedure, 1908, ‘insure’ means to secure payment of a sum of money in the event of loss or damage to property, or, death or physical injury to a person in consideration of the payment of a premium and observance of certain conditions. ‘Insurance’ is a contract by which a person (insurer) in consideration of a sum of money (the premium), becomes bound to secure a party against the risk of loss occasioning from certain events marked out by the contract. The party deriving security from the contract is called the ‘insured’ and the contract itself is termed as ‘Policy of Insurance’.

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Does judiciary come under “State” as defined by Article 12 of Indian Constitution?

By

Dr. Ashok Dhamija

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Mar 21, 2018

Does judiciary come under “state” as defined by Article 12 of the Constitution of India? Is Supreme Court covered within the meaning of “state” under Article 12 of the Constitution?

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What are the remedies against an ex parte decree?

By

Dr. Ashok Dhamija

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Mar 8, 2018

Question: What exactly is an ex parte decree and what are the remedies against such ex parte decree?

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Does res judicata principle apply to execution proceedings?

By

Dr. Ashok Dhamija

-

Mar 6, 2018

Question: Does the principle of res judicata apply to an execution proceedings?

Answer: The principle of res judicata has been laid down in Section 11 of the Civil Procedure Code, as under:

“11. Res judicata.— No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court.

*** ***.”

Prior to addition of Explanation VII to the above section by an amendment with effect from 01.02.1977, the aforesaid legal provision did not specifically say that the principle of res judicata applies to execution proceedings also. However, it had been held (even prior to 1977) that the general principles of res judicata would be applicable to execution proceedings also.

For example, in the case of Mohanlal Goenka v. Benoy Kishna Mukherjee, 1953 SCR 377 : AIR 1953 SC 65, it was held by the Supreme Court that a decision in the previous execution case between the parties that the matter was not within the competence of the executing court even though erroneous is binding on the parties.

Similarly, in the case of Prem Lata Agarwal v. Lakshman Prasad Gupta, (1970) 3 SCC 440 : AIR 1970 SC 1525, the Supreme Court held that:

“The principle of res judicata applies to execution proceedings. The judgment-debtors in the present case did not raise any objection as to limitation in regard to execution of the decree before the Civil Judge at Allahabad. On the contrary the judgment-debtors asked for setting aside the sale on the basis of revival of execution proceedings. The revival of execution was not challenged and the judgment-debtors are thereby barred by the principle of res judicata from questioning directly or indirectly the order, dated 13th May, 1950, reviving the execution proceedings.”

Subsequently, by the Act 104 of 1976 (with effect from 01.02.1977), Section 11 of the CPC was amended and Explanation VII was added, to specifically lay down that the principle of res judicata was applicable to execution proceedings also. This Explanation is as under:

“Explanation VII.— The provisions of this section shall apply to a proceeding for the execution of a decree and references in this section to any suit, issue or former suit shall be construed as references, respectively, to a proceeding for the execution of the decree, question arising in such proceeding and a former proceeding for the execution of that decree.”

Thus, there should be no doubt that the principle of res judicata is applicable to execution proceedings also.