Section 138 of Negotiable Instruments

Some legal aspects of section 138 of Negotiable instruments Act

The litigation arising out of section 138 of the negotiable instruments Act is increasing at a steady pace. This is because the legislature has made it a criminal offense that a person who pays by cheque should have an excuse of not paying because the cheque given by him was bounced. Section 138 Lawyers in Chandigarh are aware that the law relating to section 138 is very strict. Cases under section 138 are also called cheque bounce cases.

The limited sphere within which section 138 operates cannot be equated with money lending activities concerned with many lenders. It is not therefore ultra vires the powers of the Parliament. Section 138 has created a contractual breach is an offense and the legislative purpose is to promote efficacy of banking and of ensuring that commercial or contractual transactions cheques are not dishonored and credibility in transacting business through cheques is maintained. For establishing the requirements in section 138, there is no burden on the part of the complainant to prove before the court entire details of the transaction resulting in issuance of cheque.

The objectives of the proceedings under section 138 are that cheques should not be used by persons as a tool of dishonesty and when a cheque is issued by a person it must be honored and if not honored that the person is given opportunity to pay the cheque out by issuance of notices and if you still does not pay he must face criminal trial and consequences.

Cheque bounce lawyers in Chandigarh district court argue that the foundation of liability under section 138 is the issue of the cheque for the consideration and not for the existence of the original concentration. The significance and efficacy of section 138 will be lost if courts were to insist on the proof of original transaction.

Section 138 contains a penal provision. It has been argued by lawyers in Chandigarh High Court that section 138 is a special statute which creates vicarious liability, and Punjab . Chandigarh has held that the burden of proof to some extent is on accused person. Punjab High Court has also held that having regard to purport of the said provision and also in view of the fact that it provides a severe penalty, the provision warrants a state construction High Court Chandigarh has held that section 138 is charging section creating criminal liability in case of dishonor of a cheque.

The lawyers in Chandigarh who practice in Punjab and Haryana High Court have argued successfully that criminal liability which the legislator introduces to section 138 is based on principle of strict liability and the legislature's intention in enacting the said provision cannot be defeated on technical grounds unless prejudice is shown to have been caused to the accused.

The offense under section 138 is punishable with substantive sentence or fine or with both that is offense is punishable with fine also.

Punjab and High Court Chandigarh has held that section 138 of the negotiable instruments Act is a substantive provision. But, once prosecution is to be launched same will be done under procedural law laid down by Criminal Procedure Code.  Apart from civil liability, criminal liability sought to be imposed by the said provision on such unscrupulous drawers of cheque. Therefore while construing the provision, the object of legislation has to be borne in mind. Section 138 does not confine its operation to the cases where cheque had been issued by a person in favor of the other in discharge of his own personal debt or other liability, but it is also attracted in relation to cheque issued by a person to another for discharge of any debt or other liability.

High Court Chandigarh has also held that the offense under section 138 of the Act could not be said to be an offense against the society at large and therefore it will not amount to an economic offense. Further Punjab and Haryana High Court at Chandigarh has held that the offense of issuing a cheque without sufficient funds does not involve any element of moral turpitude and is basically breach of promise to repay, offense under section 138 of negotiable instruments Act is deemed offense. This means that when a cheque is drawn by a person and is returned unpaid by the bank for the reasons mentioned in the provision, such person shall be deemed to have committed an offense. The use of words ”such person” would clearly indicate that the person who had drawn the cheque is the person who commits the offense.

With the actual transactions between the parties took place prior to the coming into force of the Act but cheques were issued after coming into force of the act, criminal complaint under section 138 filed through a lawyer in Chandigarh would be maintainable as the date of issuing the cheque is relevant and not dictate of transaction.

In one of the cases relating to section 138 of the negotiable instruments that it has been held that an arbitration clause does not cover a criminal offense and therefore section 34 of the arbitration Act is not attracted to criminal prosecution initiated through a lawyer in Chandigarh under section 138.

Punjab and Haryana High Court Chandigarh has also held that section 320 sub clause nine of the Criminal Procedure Code does not play any part or prohibition against compounding of offenses under other laws. When read with section 147 of the Act, the offense punishable under section 138 of the negotiable instruments Act is compoundable offense.

In a case where the first accused was merely the owner of a business concern and his son had given the cheque to discharge liability of his father, in such case the second accused would be the drawer of the check and therefore the criminal liability under section 138 of negotiable instruments Act cannot be fastened on the owner of the business concern/father.

In another case where civil suit was pending between the parties regarding the amount covered by the cheques and the proceedings in the criminal complaint were almost at a final stage, it was held that it was not appropriate for Punjab and Haryana High Court at Chandigarh to start criminal proceedings when the disposal of the suit was likely to take time.

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Criminal Law

Power to summon as witness – Section 311 of CrPC

Sections 311 of the Criminal Procedure Code states that the trial court has powers to summon a person as a witness and also to examine a person who has not been summoned as a witness as of now. The trial court also has powers to re-summon recall a witness who has already been examined. According to section 311 of the criminal procedure code, this power has to be used if the court thinks that evidence is necessary for the proper adjudication of the matter.

The present section 311 of the criminal procedure code corresponds with section 540 of the old CRPC. It is the duty of the court to render proper justice to the parties. For this and, the court has been given powers under section 311 and it is the duty of the court that if a particular piece of evidence is deem necessary for the proper adjudication of the matter then the person who can give that evidence must be summoned before the court. This can be done even at the request of the person who has been alleged to have committed an offence. However this section gives adequate discretionary powers to the trial court. The trial court while exercising this power can refuse to admit evidence or can agree to admit evidence according to the facts and circumstances of each and every case.

Although the trial court has powers to summon a person who has already been examined as a witness, it is the duty of the court to give an opportunity to a criminal defense lawyer to cross-examine such witness.

The trial court can exercise these powers at any stage of the trial. The only relevant consideration before the trial court is that the evidence must be of such nature that it is essential for the proper adjudication of the matter. However once judgement has been delivered, the court becomes functus officio and therefore cannot exercise the powers under section 311 after the judgement has been delivered. For example in one of the cases the court had reserved the judgement but had not announced it. On the date judgement was to be pronounced, the court exercise powers under the 311 of the CRPC to summon a witness. It was held by the Punjab and Haryana High Court at Chandigarh that the trial court had powers to do so because the judgement had not been pronounced.

This power has been given to the court to ensure that justice is delivered. Justice is actually truth in action. Therefore it is the duty of the court to find the truth. And to that end the legislature has given the powers to the court to seek justice and find the real facts. However the court can refuse to entertain an application under section 311 if the court finds that the application has been made merely to delay the cause of Justice.

However it has been held in one of the cases that it is important that the investigating officer who has investigated the matter must be examined and cross-examined. In this case the investigating officer was transferred from Hoshiarpur to Jalandhar. The court held that the investigating officer who had conducted the investigation must be summoned so that the real facts may come out. The mere fact that he had been transferred could not prevent the court from summoning him since these transfers are considered routine matter in police department.

It is not necessary for either the prosecution or the defence to make an application under section 311 to summon a particular person. A witness can be called by the court on its own motion.

Although it is the duty of the prosecution to put before the court all the material evidence, however it is for the prosecution to decide whether a particular witness has to be examined or not. For example where a particular witness has turned hostile or has been won over by the accused party, the prosecution may decide not to examine the particular witness. In such a circumstance, a criminal defense advocate in Chandigarh can make an application under section 311 of the CRPC to examine that particular witness. The court is only to consider whether the evidence which is to be led by that witness is relevant and necessary for the proper adjudication of the case.

However it may be noted that this is one of those sections of the criminal procedure code which are used by criminal lawyers in Chandigarh, Punjab and Haryana to delay the trial and use long delays to make potholes in the prosecution version and later use it in favour of the accused persons. Therefore the court must be very cautious while deciding any application made under section 311 of the Criminal Procedure Code.

For example in one of the cases, Supreme Court held that where an application under section 311 had been made for additional evidence and to recall a particular witness after a lapse of one year even though that particular witness had been examined, cross-examined and discharged, such an application could not be allowed under section 311 by the trial court. However it may be observed that there is no limitation given in the criminal procedure code to exercise powers under section 311 to recall a witness and the exercise of this power depends on the facts and circumstances of each case.

                   

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Civil Law, Criminal Law , Family Law , Human Rights

HOW ADVOCATES FOR COURT MARRIAGE GET MARRIAGE REGISTERED FROM REGISTRAR OF MARRIAGES

NOTE:- Registration of marriage is different from police protection from Punjab &Haryana High Court.

After getting married, a couple may need registration of marriage for several reasons. The most important reason is that it is the legal proof, apart from marriage certificate given by religious institutions, that a couple has got married. However it is different from your marriage certificate given by religious institution. A marriage certificate may not be recognized internationally or even by governmental and institutional bodies in India. However, certificate of registration of marriage is recognized internationally by all the authorities throughout the world including all governmental and institutional bodies in India.

The procedure of getting registration of marriage is complex. That is why, people generally engage the services of court marriage advocates in Chandigarh to get their marriage registered.

Several aspects have to be considered before court marriage lawyers in Chandigarh start the process of getting the marriage registered.

• The most important is the residential status of the parties. One of the parties must be resident of the place whose registrar is giving certificate of marriage. For example if a couple is applying for certificate of registration of marriage in Chandigarh, one of the parties must be having a proof that he or she is a resident of Chandigarh. This means that either driving license or passport or any other document must show an address that is of Chandigarh.
• Further the marriage must have taken place in Chandigarh. Foreign citizens must have passport and its photocopies. For citizens of India, registration generally takes less than one day. In case of NRI/s or foreign citizens it can take three to four days.
• In case of NRIs several more formalities are involved which makes their registration of marriage more difficult.

Some documentary requirements are:-

• Four passport size photographs of husband alone and wife alone.
• Residential Proof – Aadhar card or driving license or passport of Husband and Wife.
• Date of Birth Proof – date of birth certificate, 10th class certificate of Husband and Wife.
• Two Witnesses aged above 18 with aadhar card

Additionally:-

1.Certified copy of Decree of Divorce granted by the Court, if applicable.

2.Death Certificate of the dead spouse, if applicable.

NRI & FOREIGN CITIZENS MARRIAGE REGISTRATION IN CHANDIGARH

Sometimes non-resident Indians or foreign citizens who do not know the laws of registration of marriage, get married outside the jurisdiction of register of marriages and their application for registration of marriages rejected. In such circumstances their spouse is unable to get Visa on the basis of spouse Visa basis. It is best in such a scenario to hire the services of an expert who deals with such matters on regular basis. In one of the cases, our client got married in Thailand and told us to get his marriage registered in Chandigarh. We flatly refused. And this client had to get his marriage performed in Chandigarh once again to get marriage registration certificate in Chandigarh.

In yet another case, a Canadian citizen got married to a man residing in Chandigarh. However that Canadian citizen was a Muslim and her husband was a Hindu. Although the registrar of marriages in Chandigarh gave certificate of marriage, the Canadian embassy refused to give Visa to the spouse because of difference in religion.

These risks and extra costs have to be avoided. To prevent these, it is better to take assistance of an advocate having knowledge of marriage laws specially in context of Non Resident Indians (NRI) and foreign citizens who want to get marriage registered in India. The worst embassy to deal with in relation with NRI registration of marriages is UK embassy. Our clients who are UK citizens face a lot of practical difficulties in getting their marriage registered in Chandigarh. Other embassies and countries are very cooperative.

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Consumer Disputes, Corporate Law

How online shopping portals cheat consumers?

               

People are generally aware that online shopping portals are minting huge amount of money. Many of these shopping websites (which I will not name) indulge in cheating the customers. This cheating may be through false advertisement, substandard product, defective product or were after sales services. Let us see what legal aspects are involved when we shop online and also study how online shopping websites cheat consumers.

The first thing to know is that if I’m a consumer based in Chandigarh and I am surfing and online shopping website, then the services are being delivered in Chandigarh. And therefore even though such online website is based in, say Mumbai, the consumer courts in Chandigarh have jurisdiction to entertain any consumer complaint which I make against such online shopping website.

Let us assume that I want to buy a laptop. I go to a famous online shopping website in India and check out the laptops. Several laptops are displayed and I choose one of them. The price of that particular laptop written on this website is Rs. 70,000 and it gives me 17% discount. After discount this comes out to be Rs. 58,100. And therefore I purchase this laptop thinking that I’m getting a heavy discount on this online shopping website.

When this laptop is delivered in Chandigarh at my place, I open the package and find out that the maximum retail price of this laptop is Rs. 60,000. Maximum retail price means that the price of the product cannot be more than Rs. 60,000. This includes all types of taxes. Now the online shopping website has shown me the price of 70,000 of a product whose maximum retail prices Rs. 60,000. Although the real sale is taking place at a price below Rs. 60,000, but still the online shopping website is engaged in false advertisement of this product. This is because the real discount can only be given only on maximum retail price. Therefore the discounted figure after 17% discount on the 60,000 should be Rs. 49,800.

In other words there is a difference of Rs. 8300 into discounted prices. This is the money which the online shopping website has made illegally by showing price above the maximum retail price. This is a very clever way of cheating a consumer.

Generally consumers are not aware of this law. Now the question arises what is the remedy which is available to me? I have purchased a laptop and I have been cheated. What should I do? Since I’m based in Chandigarh and the product has been delivered in Chandigarh, may remedy lies in filing a consumer complaint under consumer protection act in the consumer disputes redressal forum in sector nineteen, Chandigarh. I will have to show that I have been misguided by the online shopping website because of the price displayed on the website which was more than maximum retail price. Further I will have to show that there was false advertisement that I was getting a discount of 17% on maximum retail price or a price less than that. If I’m able to show that, the consumer forum shall award may compensation and litigation expenses et cetera.

                           

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Criminal Law

Criminal Law – Whether delay in rendering justice is denial of Justice?

It is often said that justice delayed is justice denied. Delay in giving judgements and in rendering justice, creates fear and anxiety in innocent litigants. Further, unnecessary delay may result in loss of evidence or destruction of evidence. And it is only on the basis of evidence that rights of the parties are to be determined by the court.
Unreasonable and unnecessary delays are signals of the bad performance of Justice system and leads to failure of Justice. This also leads to criticism of judicial system. People lose confidence in the courts and a doubt arises as to the fairness and utility of courts for the delivery of Justice.
Article 21 of the Constitution of India guarantees right to life and liberty to each of its citizens. The Supreme Court of India has recognized right to speedy trial as a part of article 21 of the Indian Constitution. It has been held that speedy trial forms in essence of the criminal justice system in India. Even outside India, speedy trial is one of those rights which are given to each of the citizens through Constitution. For example in United States of America speedy trial is a constitutional right of each of its citizens. Even European Convention on human rights assures that all the persons who have been accused of an offence is to be entitled to a fair trial and that trial must be completed within a reasonable timeframe. Coming back to article 21, it may be clarified that speedy trial is not specifically mentioned anywhere in article 21. However it states that no person is to be deprived of his life or personal liberty except in accordance with the provisions of law. And it has been held in Maneka Gandhi’s Case that the procedure which forms part of law must also be reasonable and just. Any unreasonable delay in the trial of an offence is considered to be an constitutional.
On books, the current judicial system in India provide this constitutional right. However the practical aspects are different. Indian judicial system is in famous for its notorious delays. There is a huge backlog of more than two crore cases in Indian lower courts and more than thirty-five lakh cases are still pending in high courts in India. There is therefore a lot of delay in the disposal of court cases. It is because of this reason that certain persons try to achieve Justice through extrajudicial methods. For example, in a matrimonial dispute, the wife’s side may try to implicate the husband and his family in a false 498 a case. I have also seen cases where the parties had a property dispute. One of the relatives of one such party expired because he fell from third-floor office own house. This party tried to implicate the other party in the offence of murder of this relative. And because of huge delay in the criminal justice system, the other party suffered for fifteen years before getting Justice.
I have also seen cases where a gang of criminals involving some women falsely accuse innocent men of rape. Such persons are forced to compromise and these gangs extort a lot of money from innocent persons. Had there been a fair and impartial enquiry in such matters and had criminal justice system in India with to act and render Justice, this would not have happened. This is so because people are afraid that once they are behind bars, they will not be able to come out of jail soon even though they are innocent because of the delays in rendering justice. It may be noted that out of the cases pending in Indian courts, to third are criminal cases and 94% of the accused are acquitted. This raises a question about authenticity of criminal Justice system in India.
Every society has laws to maintain order and to stop “ Reign of chaos and old night”. This is also partially achieved by fair administration of criminal justice. However the nature of states have changed from police states to modern welfare state’s. In such states, the role of the government is more of social control and not punishment. In these circumstances, the criminal justice system is an instrument for the protection of individuals and only way to achieve the ends of criminal Justice system is to avoid lapse rendering justice. Under these circumstances, law is not merely an instrument of social change but also social control. Further there are a lot of technological and scientific developments throughout the world. Our criminal justice system which is already subject to so many delays is unable to cope up with the advances in the modern technology. The nature of crime and the methods of committing crimes are also changing with the passage of time.
Criminal Justice system involves procedural and substantive laws. Procedural laws include Criminal Procedure Code and an example of substantive laws of Indian Penal Code. There are clauses in these laws to avoid delays. However the delays caused not only by inadequate number of judges in criminal justice system in India but also by delaying tactics of lawyers. For example a criminal in Chandigarh will find the best criminal lawyer in Chandigarh to defend his case. On the other hand the government leaders are selected either on the basis of political approach or on the basis of written tests. Those who are selected on the basis of political approach are least bothered with the criminal justice system. And those who are selected on the basis of written tests and interviews are selected on regular posts and they cannot be removed easily. This makes them lazy. Their job performance is not related to the results they achieve and performances not measured through the results. In such a circumstance, while a criminal may find the best criminal lawyer in Chandigarh the government leader may not be of that standing. Even if the person has actually committed a heinous crime like rape or murder, a good lawyer may easily be able to delay the trial for decades because of loopholes in legal system.
Although a lot of efforts have been made by the successive governments to curb delays and nip this evil practice in the bud but the delays are here to stay. These delays have become shield to criminals who prefer the status quo in the criminal justice system.
There are several remedies which are available to innocent persons who are accused of committing offences. But due to vast delays, such persons are not able to avail such remedies in time.
Some of these remedies are –
1. Quashing petitions including quashing of First Information Report and quashing of criminal complaint.
2. Anticipatory Bail in Chandigarh.
3. Regular Bail in Chandigarh.
4. Criminal Appeals in Punjab and Haryana High Court at Chandigarh.
5. Criminal Revisions in Punjab and Haryana High Court at Chandigarh.
6. Criminal Writs in Punjab and Haryana High Court at Chandigarh.
If you are a victim of unreasonable delay, feel free to contact our Criminal Advocates in Chandigarh.

 

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Family Law

MARRIED IN INDIA AND GETTING DIVORCED IN CANADA (OR AUSTRALIA, USA)?

Getting a divorce is stressful. Especially so if a person is married in India and then seeks divorce in Canada. In Western countries, divorce proceedings are not as complex as in India. Generally, it is enough to show a separation of more than one year to get divorce. Further, the lawyers also advise clients who are residents in Canada not to get involved in a long litigation.

However, things are a little different in India. Here, laws relating to marriage are just one part of vast Hindu Family Law, which includes laws relating to succession, inheritance, adoption, guardianship, and maintenance. A handful of litigation under Hindu Family involves a wife not having any gainful employment, who desires that her child should have a share in the ancestral property of her husband. She will see divorce as a loss-making situation as once she is divorced, her child cannot claim any share in the ancestral property of the husband. Further in such situations, wife may not be willing to give the custody of the child to her husband. This is just one of the many situations arising out of Hindu law, which makes divorce a complicated affair in India. Further, divorce proceedings in India can linger on for years. For a spouse with revenge on their mind without any cost considerations, delay in getting divorce becomes a legal heaven.
If a husband or wife takes divorce in Canada, the other spouse has several grounds under Section 13 of Civil Procedure Code to file a suit to declare the decree of divorce passed by a Canadian court unlawful and void. Besides, there are judgments of the Supreme Court of India, which clearly state that ground of divorce in Canada must be the one which is recognized as a ground of divorce in India as per Hindu Marriage Act, 1955.

Once a court in India invalidates a decree of divorce in Canada, the wife may lodge/register a First Information Report (FIR, police complaint) to the effect that the husband and his relatives in India and/or abroad have treated the wife cruelly for the purpose of taking dowry. In such a case, a trial initiates against the accused persons who may also be arrested for several days even though they are innocent and wrongly named in the FIR. This police complaint can also be used by the wife to extract money from the husband. This is not even treated as a part of temporary or permanent alimony or even maintenance under Section 125 of Criminal Procedure Code, 1973.

This also gives rise to a strange legal situation in which a person is deemed to be divorced in Canada and married in India. The repercussions of such legality are criminal, civil and financial.

A wife can also initiate criminal proceedings under anti-dowry laws in India the moment she comes to know that the husband is filing a divorce in Canada. She may not even need to come to India to initiate such criminal proceedings in India.

Therefore, before considering divorce in the circumstances mentioned above, husband or wife must consult a lawyer in India. In such circumstances, a lawyer in India can seek a decree of mutual divorce in India as a parallel proceeding. A lawyer in India may also assist the family lawyer in Canada to get the best possible outcome for the client.

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