A Punjab Govt employee was guilty of embezzlement of govt money in departmental inquiry and punished with the recovery of pecuniary loss caused to the govt. to the extent of 20 % (cut in pension ) for 5 years was being made from her pension. Now She was dead.
Now the issue was whether this govt.money can be recovered from her own pension and family pension also. If the family pension is claimed by legal heirs Can pecuniary loss cause to Government be recovered from Legal Heirs?
The Governor has a special power to recover from pension any loss caused to the government exchequer. The employee is bound to pay it even after retirement. However, the pension is self-earned income and the government cannot withhold it arbitrarily.
Deceased pensioner found guilty in departmental inquiry thereupon 20% pension had been deducted from her pension. Now she is dead, the question is whether the government has the right to recover remaining dues from her legal heirs?
No, legal heirs neither being personally liable nor their properties are liable to pay dues. The government can recover it from properties of heirs if they were appropriate all the properties of the pensioner with the intention to escape from paying debt, liability or dues.
When a criminal case is already abated but there are findings of departmental inquiry which empowers the government to initiate recovery proceeding but it is limited to the properties of the employee. The government can not recover it from the properties of legal heirs.
Whenever government initiates recovery from pension section 50 of CPC will apply. Section 50 says: Where the decree is executed against such legal representative, he shall be liable only to the extent of the property of the deceased which has come to his hands and has not been duly disposed of.
Recovery order of government is treated as a decree for the purpose of section 50. Only those part of the pension is liable to pay dues which came in your hands and not has been duly disposed of.
I and my wife ( both 75+yrs old) have been renting this house for the last 25+ years. We, old age tenant, live in Chennai and have no other property. The original owner died and his sons are wanting possession of the house. Is there any compensation we can expect from them and if so how much can we expect. Do we have any other rights as tenants of this property? Thanks
The landlord may evict the tenant on any of the ground mentioned in section 10 of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960. Certain safeguards are provided to the tenant against eviction. You should apply to section 10(4)of said Act before the Controller that eviction may cause hardship to you due to your old age. Old age tenant has right to get enough time and should not face hardship during eviction [A. Shanmugam vs P.R.Lakshmanan AIR 2007].
The controller on receiving your application shall reject the application if he is satisfied that the hardship which may be caused to the tenant by granting eviction. The controller shall extend the period for eviction on the fact and circumstances of the case.
According to section 117 of Evidence Act, the tenant cannot claim title over the premises, the title of the landlord shall be presumed once the relation of landlord and tenant has been established, the tenant has no right to claim compensation on his eviction because no adverse possession accrues against the landlord.
- If tenant made any improvement in the premises he has right to recover it from the landlord.
- If any fixture cannot be removed from the premises he has right to recover it from the landlord.
- If the tenant had paid any tax/fee/charge on behalf of landlord he has right to recover it from the landlord.
My father gave a loan to his friend and took an undertaking from him that he shall not sell the properties mentioned in the undertaking in the currency of the loan. But that undertaking is unregistered but signed by the borrower. Is it legally valid?
According to section 100 of Transfer of Property Act (TPA), Where immovable property of one person is by an act of parties or operation of law made security for the payment of money to another, and the transaction does not amount to a mortgage, the latter person is said to have a charge on the property.
So charge has been created on the properties mentioned in the undertaking. But for creating valid charge it is required by section 100 and 59 of TPA that such document must be signed by both parties, registered under section 17 of Registration Act and attested by at least two witnesses.
In Bank of India vs Abhay D. Narottam (2006) 3 SCC; it is held by the supreme court that without a transfer of interest mere undertaking is not sufficient to create a charge. It is necessary for the transfer of interest to registered the document according to section 59 TPA and section 17 Registration Act.
You must register the document according to the above-mentioned sections of the TPA and Registration Act. Otherwise, it shall not be read the evidence and it is not a valid document for creating a charge.
My husband is an engineer, and he is very short-tempered. He used to torture me on every silly mistake. Due to his torture, I have decided to live separate with my two daughters. I am a post-graduate in History and working as a teacher in a private school. My father is a retired government officer, so he has no sufficient means to take care of us.
I have filed a complaint about maintenance section 125, but the lawyer of my husband took a plea that I’m a teacher so I have sufficient means. Therefore, no need for maintenance from the husband. The case is pending, is there any case law in my favour?
Asked from: Maharashtra
The wife, children, and parents can seek maintenance under Section 125 of the code of criminal procedure (CrPC). A husband cannot neglect his wife if he is financially sound.
The court considers the actual necessity of the wife while granting maintenance. You are a school teacher. But your earning is not sufficient for livelihood. In this situation, you can invoke section 125 for a monthly allowance from your husband.
A wife can receive financial support from her husband, although she has some earning. Your husband has substantial earning. He must provide you with a quality living standard as other women are getting in his family. The court always considers the actual status of woman in the husband’s family.
If the wife is earning
Maintenance is not merely financial support. It is a sense of honour for a wife. In this context, she can compare with the other woman of her husband’s family. The living standard directly connected with the earning of the husband.
Your husband has substantial earning. He cannot refuse to give monetary support because of your independent income. Your earning does not pose any hurdle to receive alimony from her husband.
In Shailja v. Khobbanna, (2018) 12 SCC 199, the Supreme Court held that an earning wife is entitled to receive maintenance from her husband.
In Sunita Kachwaha vs Anil Kachwaha AIR 2008; the wife was a working lady. The Supreme Court believed that this fact is not sufficient to hold that she is in a position to maintain herself.
Your earing may reduce the amount of monthly allowance because you can maintain yourself to some extent. Protection of wife from starvation is a paramount duty of the husband. The wife has a right to live a quality life; however, she has been living separately. Your husband cannot escape from this duty merely that you have some earning.
Section 125 crpc
This section provides speedy justice to the wife, children, and parents. If they are living under vagrancy or destitution, they can invoke section 125.
When the competent husband neglects or refuses to support his wife, then the wife has the right to claim maintenance under this section.
In the course of getting maintenance under section 125 crpc, you have to prove that:
- You are unable to maintain herself.
- Your husband has sufficient means to maintain.
- Husband neglects or refuses to maintain.
When the wife living separately
You said that you are living independently from the husband. So you have to prove that there is sufficient reason for separate living; otherwise, the court will not award maintenance.
Relation of husband and wife is very pious. Law expects that wife should live with her husband and perform her marital obligation. When a wife has sufficient reason to live separately, she is also entitled to get maintenance.
Also read: What to do when husband deliberately not attending court?
I’m running a small factory and in the course of my business, I used to received some cheques from companies. One of my clients committed an offence under section 138 Negotiable Instrument Act. Is it mandatory to give notice to all the directors of the company?
No need to send a separate notice under section 138 NI Act to all the directors of the company. Although directors are responsible for the affairs of the company there is no rule in the NI Act to demand the payment of cheque amount from the directors. The only company is liable, notice given to the company is just and proper.
The section 141 of NI Act states that: If the person committing an offence under section 138 is a company, every person who, at the time the offence was committed, was in charge of, and was responsible to the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly.
Section 138 of the said Act provides punishment which is as same as applicable in case of the offence committed by a company. The notice period is also the same and there is no provision in the Act for separate notice to all the directors in case company is the drawer of the cheque. B. Raman vs Shushan chemicals & Drugs it is held by the Madras High Court that notice should be given to all the directors.
But in Krishna Taxport company vs A. A. Agrawal AIR 2015 SC; judgment given in B. Raman case is overruled and it is now settled law that it is not required by the law to give a separate notice to all the directors of the company.
It is also unrealistic to know the name of all the directors at the time of issuance of the cheque. According to company law, a company performs its activities through the directors, the company is a separate legal entity in the eye of law for purpose of security of rights of those people who have affairs with the company.
One Punjab Govt employee has criminal proceedings in the trial court. Now she died. Court abate proceedings. Can Recovery from Pension of pecuniary loss caused to Government be made even criminal proceedings abate. If the pension is claimed by Legal Heirs. What is fate? Can pecuniary loss cause to Government be recovered from Legal Heirs?
The abatement of proceedings against an accused has an effect of discharge/acquittal as the case may be. If a proceeding is abated before framing of charge then accused shall be treated as discharged else acquitted.
In both conditions, he is innocent in the eye of law. In your case, the criminal proceeding is abated because of his death and he shall be either discharged or acquitted by the court. In both conditions recovery of pecuniary loss cannot be recovered from his pension.
Pension is the self-earned property of the employee, according to section 60 of the CPC it cannot be attached.
Recovery of pecuniary loss from the pension of a government employee is prerogative of the Governor. Governor takes such decision either on the findings of departmental inquiry or criminal proceeding.
A criminal proceeding is now abated so the Governor may take such decision on the finding of the departmental proceeding if it is still in process or completed. But in each and every case it is mandatory for the government to declare the employee guilty of misconduct.
My tenant has filed a false suit in civil court when I gave him the notice to vacate my shop. He has not been paying rent since march 2014 and on repeated request to vacate my premises he always took time. In November 2014 I sent him a notice to vacate my shop but he filed a civil suit immediately after receiving the notice.
There was an agreement of lease and license for 11 months tenure and it is included that after the expiry of tenure he shall be treated as a trespasser. I obtained his signature on the agreement. He took the plea that after the expiry of agreement landlord has been receiving rent every month. So tenancy is extended by his conduct.
But I have not received any rent after march 2014. I want to take back possession of the shop. What should I do?
Section 91 Indian Evidence Act provides that when terms of the contract are reduced to form of a document then no evidence shall be given in proof of the terms of such contract. he may file false civil suit but eventually, he will be defeated. According to your contract, all the terms are included and agreed by both the parties.
There is no room for oral evidence regarding the terms of the contract. If he tries to adduce evidence that tenancy will be extended by payment of rent then it shall not be admitted by the court. According to the contract he shall be treated as a trespasser and after the expiry of 11 tenure contract became infructuous i.e. no effect.
If parties want to extend their relation as tenant and landlord then-new contract should be executed. You had to send notice immediately after completion of tenure. Because the cause of action had arisen on expiry of tenure. If you have any evidence regarding nonpayment of rent after the expiry of tenure then you have to adduce it before the court.
You should file revision application before senior division court for setting aside the suit filed under Order 4 CPC because tenant who is actually a trespasser has no right to file a civil suit.
My great grandfather constructed a bungalow over 6 acres of land. This land was granted to him by the then commander-in-chief of the Indian army. This land comes under cantonment area of Lucknow, This bungalow was erected in the year 1892 and right now the market value of this property is about 29 crore. My father wants to sell this bungalow, but cantonment board objected and filed a case against him. We are the owner of the land because we have been living in the home since the year 1892.
All the lands comprising in the cantonment area are to be recorded under general land register or GLR of each cantonment area. First, you take a certified copy of your survey number from the commandant of cantonment area, GLR is a public document and commandant is bound to give a certified copy.
If your land is mentioned in its any entry then it will become clear that your great grandfather was not the owner of this land. Government of India is the sole owner of every land mentioned in General Land Register, In British period these land were given on special grant that is called an old grant. At that time Lord Governor was the owner of those properties.
After independence, this right is vested in the President of India through the ministry of defence. You cannot sell this land. But you may get compensation to the extent of the cost of building, which is decided by the committee of arbitration.
In Chief executive officer vs Surendra Kumar Vakil (1999) 3 SCC, held by the supreme court that property granted by “old Grant” shall not be sold by the grantee.
I gave a loan to my friend because he was facing some financial hardship. At the same time, he gave me a security cheque. That security cheque was bearing the equal amount of loan because he intended to secure the loan. However, I was quite sure that he will repay the loan within 2 months but unfortunately, he failed to do so.
Thereafter, I made some query regarding the repayment of the loan. He told me to encash the security cheque and after receiving his assurance, I presented that cheque in the bank. The bank informed me that he has dishonoured the cheque.
I sent him a demand notice to pay the loan amount but he did not reply. After receiving no response from him, I have filed a complaint against him. At the trial, he pleaded that it was a security cheque, therefore, he stopped that cheque. He said that no offence is made out under section 138 NI act. Is he right? What the law towards security cheque?
Your friend has committed an act of cheque dishonour by instructing the bank to stop the payment, which proves that he was aware of the cheque's presentation and intentionally dishonoured it. This indicates that he does not intend to fulfil his liability.
A security cheque is a cheque issued as collateral security in a commercial transaction, which is not meant for encashment. However, in this case, your friend cannot claim that the cheque was a security cheque since he was already in debt when he issued it to you, indicating that it was issued in discharge of his debt.
As per Section 139 of the Negotiable Instruments Act, there is a presumption of discharge of debt or liability in your favour. It is presumed that you received the cheque in discharge of your friend's debt, and the burden of proof now lies upon your friend to prove that it was a security cheque.
Security cheque
A cheque that is issued as collateral security is known as a security cheque. Collateral security refers to an asset that a borrower provides to a lender as a guarantee to be sold in case of failure to repay the loan.
In commercial transactions, a cheque can be used as collateral security, but it cannot be encashed because it is not intended to discharge a debt or liability.
Your friend has committed offence under section 138 NI Act
The dishonour of a cheque is considered an offence only when it is issued in discharge of debt or liability. In this case, your friend cannot deny that he was indebted at the time of issuing the cheque to you. Therefore, he issued the cheque to discharge his debt.
As per the Supreme Court in the case of P. Venugopal vs Madan P. Sarathi, (2009) 1 SCC, if a cheque is issued partly in discharge of liability or debt, then it is not considered a security cheque. If such a cheque is dishonoured, it shall constitute an offence under section 138 of the NI Act.
In your case, all the ingredients of section 138 NI Act are present. You can prove your case on the grounds that your friend took a loan from you, he issued the cheque to discharge the debt, the debt existed at the time of issuance of the cheque, he intentionally stopped the payment of the cheque, and you received no response from him against the demand notice.
The presumption of debt also lies in your favour, and your friend has to rebut that presumption by providing evidence that it was a security cheque. However, in the current circumstances, he cannot deny the loan. Thus, he cannot prove that the alleged cheque is a security cheque.
Therefore, his plea of the security cheque is false and frivolous, and you have enough evidence to prove that he has dishonoured the cheque.
The Bihar Government has filed criminal case after 13 years of my retirement. Government has filed a criminal case against me under section 420/467/468/471/409/201/120-B IPC for granting illegal licenses to some traders of Bihar in the discharge of my official duties. It was the regime of Lalu Yadav when the government frequently changes rules and regulation for granting licenses. Now I am retired from the public post in the year 2002 March 12.
I have been availing all the retiral benefits and also enjoy pension. On November 3 of the year 2014, I received a letter from the PS of my department that Honorable Governor of state passed an order to recover all the loss, suffered to department from granting illegal licenses, from my pension. Sir, is it legitimate to file a criminal case and recover that amount out of my pension after 25 years from the date of occurrence and 13 years of my retirement?
You had committed that offence in the discharge of your official duties. In Subramaniyam Swami vs Man Mohan Singh AIR 2012 SC; the Supreme Court has held that the trial court has a right to examine all the facts and evidence of the case. The court may take cognizance of the offence however, it has been filed after a long time. Thus, court can take cognisance however, the Government has filed criminal case after 13 years of your retirement.
Cognisance of offence after retirement
Section 468 Cr.P.C. provides a period of limitation in respect of taking cognizance of the criminal case. There is no limitation period of an offence punishable with more than three years of imprisonment. Hence, the court can take cognizance at any time after commencement of offence.
Offences under section 420/467/468/471/409/201/120-B IPC are punishable for the detention of more than three years, so no period of limitation applies to them. In Ram Chandra Rao vs State of Karnataka AIR 2002 SC; held by Supreme Court that there is no period of limitation for the continuation of trial of the criminal case.
The court cannot take cognisance against a retired government servant unless the government gives sanction for prosecution.
Sanction for prosecution
Section 197 of the code of criminal procedure makes it mandatory to get sanction from the government before taking cognisance against the government servant. Here, the word government servant includes both retired and serving officer. That sanction is mandatory
- If the accused is serving or ex-government servant.
- The alleged offence has been committed by a government servant in the discharge of his official duty.
- The government servant is removable from his office save by or with the sanction of the government (central or state government).
If criminal proceeding has been initiated against a retired government servant without taking sanction then such a proceeding is illegal. The High Court, in exercise of his inherent power under Section 482 of the code of criminal procedure (crpc), may quash such a criminal proceeding.
Offence committed in discharge of official duty
It is mandatory for taking sanction from the government that the accused committed the alleged act in the discharge of his official duty. The alleged act must has a direct nexus with the official duty. If the accused committed different act which is not the part of his duty then sanction is not required for his prosecution.
In Punjab State Warehousing Corpn. v. Bhushan Chander, (2016) 13 SCC 44 the hon'ble Supreme Court has held that
There has to be a reasonable connection between the omission or commission and the discharge of official duty or the act committed was under the colour of the office held by the official. If the act(s), omission or commission of which is totally alien to the discharge of the official duty, question of invoking Section 197 CrPC does not arise.
But in your case the connection between official duty and alleged act is missing. The alleged offences are related to forgery, cheating and criminal conspiracy. Act of forgery and cheating are totally unconnected to the official duty of a government servant.
It was not your official duty to fabricate false records, misappropriate government funds or indulge in criminal conspiracy in discharge of official duty. Therefore, sanction under Section 197 crpc is not required in your case. Hence, the criminal proceeding is valid and carried on in the conformity of settled principles of law.
