Sir presently retired from the bank service. Can I lodge FIR in discovery of new facts? During 2006 the insiders tried to fix me in a false case of misappropriation of excess cash/shortage of cash. The claim gained by illegal activities of stolen customer paying in slip and a customer cash paid cheque stolen from my custody. The stolen property was under the custody of the supervisor and senior manager. Misappropriation of claim gained by concealment in the bank computer. On false customer complaints and the senior manager complaint.
Bank appointed team of investigator and enquiry presenting officer. Jointly supported a claim of misappropriation. All the claims earned by stolen paying in slips and a cheque from my custody. Virus is discovered by a bank directed to lodge a criminal complaint. The accused person's confession letter escaped from police investigation. The virus was discovered recently. Can I file a fresh fir against the bank and accused person's.
If the said incident happened due to malicious software or virus installed in computers of the bank then you can absolve from the alleged charges. In this situation the discovery of viruses in the computer system is an important fact.
Therefore, recording of FIR becomes mandatory to unearth the truth. The confessional statement of the accused has been misplaced by the investigating officer of the bank in connivance with the accused. Hence, this new fact may prove who has misappropriated the cash.
A bug or virus has been discovered during the preliminary investigation of the investigator and presenting officer. If the bank does not take proper legal action i.e. to lodge a first information report under the Information Technology Act then you should lodge the FIR.
FIR on discovery of new facts
This new fact constitutes a distinct offence. It may be possible that it has some link with the previous offence. But until the investigation starts and a report of an expert has not been received the link between accused and alleged crime could not be established.
Hence, investigation is necessary in respect of this new criminal act. You should lodge an FIR in discovery of new facts unveiled during the inquiry. If the police refuse to lodge your FIR then you should move an application to the Magistrate under Section 156(3).
Government has passed termination order on the findings of a preliminary inquiry report. I want to know whether it is legal or illegal. What action should be taken? The allegation levelled against me is that I have been appointed by a forged appointment letter. That allegation is false. When I have submitted a representation for consideration of my candidature for the promotion. The new director has initiated a departmental inquiry against me for getting service by a forged appointment letter.
In that proceeding I have been cooperating with the officer. But due to pressure from the director, the preliminary inquiry report was submitted with finding that the appointment letter was false. Now the termination order has been passed by the director.
Prima facie it seems that the termination order is illegal. The findings of departmental inquiry is yet to come. Your service has been terminated merely on the findings of the preliminary inquiry report.
The preliminary inquiry is just a fact finding inquiry to find whether sufficient grounds are existing for initiating a departmental inquiry against the delinquent officer. Its report forms the basis for commencement of a full-fledged inquiry. But in your case the director has used the findings of preliminary inquiry for passing a final order i.e. termination order.
Termination of service on the findings of preliminary inquiry is illegal
The findings of preliminary inquiry constitutes a prima facie ground for the government to consider whether further investigation in respect of the incident is required or not. It does not form the basis for taking final decision on the matter in dispute. [State of Maharashtra v. Saeed Sohail Sheikh, (2012) 13 SCC 192]
You have been terminated without framing charges. Framing of charges is mandatory for a regular departmental inquiry. It is settled law that a regular departmental inquiry commences only after the framing of charges. Charge also furnishes information to the delinquent officer about the nature of allegation. Report of preliminary inquiry is generally, used for framing of charges.
The government did not afford you an opportunity of hearing and cross examination of witnesses. Termination order has patent illegality because it is violating the principles of natural justice.
Opportunity to cross examine the witness, information about the allegation and opportunity to defend in departmental inquiry are indeed the integral parts of the principle of natural justice.
In Nirmala J. Jhala v. State of Gujarat, (2013) 4 SCC 301 the Supreme Court has held that the evidence recorded during the preliminary inquiry cannot be used against the delinquent officer because the officer had no opportunity to cross examine the persons examined in preliminary inquiry.
Hence, your termination order passed on the basis of evidence collected and statement of witness recorded during the preliminary inquiry is illegal.
Challenge the legality of termination order
You should file a writ petition before the High Court Allahabad and seek quashing of termination order. The court will quash the order because it has been passed without holding a proper departmental inquiry.
The departmental inquiry is said to be commenced only after framing of charges against the delinquent officer. Charges are framed after the findings of the preliminary report. No charge sheet has framed against you because the Directed has terminated you only on the basis of preliminary report.
Can the government dismiss an employee who secured a job in the reserved category without fraud? I’m appointed as a junior engineer in the government department in the other backward category. At the time of recruitment my caste was considered as an OBC but later on it was converted into a scheduled caste. It was a decision of the government.
After sixteen years of service the department has initiated proceedings to dismiss and terminate from the service due to submitting forged caste certificate and fraudulently secured job in the OBC category. Can the government have the power to remove me from the service?
If the caste certificate was genuine and your caste was regarded as the other backward class, at the time of joining, then the government cannot dismiss you from the service.
Government cannot dismiss an employee on its own fault
When the employee has committed no fraud during the process of joining the government (employer) cannot dismiss or remove that employee from the service on its own fault.
You had not played fraud at the time of joining because the caste certificate was genuine. No false and frivolous information was furnished to the government at the time of joining.
The government issues caste certificates hence, the rule of promissory estoppel will apply in your case. At the time of joining the concerned authority had an opportunity to verify your documents. You joined the service after due verification of necessary documents and eligibility criteria.
After sixteen years of service the government cannot say that the caste certificate was not verified. Hence, the government at this stage cannot remove you from the service on the grounds of fraud.
In your case the caste certificate was genuine and at the time of joining your caste was regarded as the OBC. Later on modification or alteration in caste by the government cannot form the basis of removal from service.
In Kumari Vandna Srivastava v. Principal, M.L.N. Medical College, Allahabad, 1986 UP LB EC 435 the Allahabad High Court has held that if no mistake was done on the part of petitioner at the time of admission the college cannot terminate the petitioner on the ground that petitioner belongs to another category.
In Sri Krishna v. Kurukshetra University, (1976) 1 SCC 311 : AIR 1976 SC 376 the Supreme Court has held that once a candidate was allowed to take admission, rightly or wrongly his candidature cannot be denied on the ground of fraud if a person on whom fraud is committed is in a position to discover the truth by due diligence, the fraud is said to be not proved.
The above two judgments prohibit the government from terminating the candidature on the ground of promissory estoppel. Once the government has given the admission in due course it cannot retract on its own fault.
It was the responsibility of the government to verify the caste and eligibility of candidates at the time of joining. If there was no mistake or fraud committed by the candidate, later on, his candidature cannot be terminated.
You should file a writ petition in the High Court under Article 226 of Constitution and challenge the legality of the order of termination. This order is illegal and groundless. According to the principle of promissory estoppel the government cannot change its decision after sixteen years.
Can a wife claim maintenance from her mother in law? As I have information the wife has no right to get maintenance from her mother in law. My wife is threatening my mother that she’ll file a case in section 125 crpc for alimony. Thereafter, my mother is very much afraid about the bearing of financial liability. Can a wife seek maintenance when her husband has ousted her from his ancestral property? The material fact is that the husband does not earn enough to provide maintenance to his wife.
Wife has no right to claim maintenance from her mother in law when her husband is alive. The husband is liable to maintain her wife even though the husband is not working. Husband cannot refuse to extend financial help to his wife because he is unemployed.
It is your responsibility and you cannot absolve yourself. In Captain Ramesh Chander Kaushal vs Veena Kaushal (1978) 4 SCC 70 the Supreme Court has held that it is fundamental and natural duty of the husband to maintain his wife when she is unable to maintain herself.
Maintenance from mother in law
Mother in law is not bound to maintain her daughter in law under Section 125 of the code of criminal procedure (crpc). Wife can invoke Section 125 crpc against her husband.
If your wife files any complaint against her mother in law for the maintenance under Section 125 crpc you should squarely object to it. Such a complaint is not maintainable. The High Court can quash such a proceeding under Section 482 crpc.
Husband does not earn enough
This plea of the husband is not sustainable because an able person is bound to maintain his wife and children. The husband cannot put his wife and children in vagrancy if he can earn.
You said that your earning is not sufficient therefore, cannot maintain your wife. The court will reject this plea because however your earning is low but you have sufficient means to maintain your wife.
Your low earning is a mitigating factor. It will be taken in account by the court for the determination of the amount of monthly maintenance. The court may award monthly alimony in proportion to your net income. But you cannot absolve yourself completely from the responsibility to maintain your wife because you don't earn enough.
How to transfer ancestral property named in great grandfather? Can a co-owner transfer ancestral property when it is in the name of the great grandfather? My grandfather received some property from his father but name did not change. It is in my great grandfather's name. Now my grandfather has expired, and his four sons are there. Now one of my uncles want to transfer his share of property out of 4 (brothers) share to his son or daughter in law. Is it possible to transfer if yes then how? Kindly give the solution.
Asked from: Rajasthan
Your uncle cannot transfer his share without partition. This is an ancestral property and all the sons and grandsons of your grandfather have rights in this property.
All the legal heirs of your grandfather are constituting a coparcenership. They have rights in this ancestral property by birth. Therefore, coparcener's right remain unaffected even though their names are not entered in the revenue record i.e. Khatauni.
File a partition suit
Transfer of ancestral property without partition is not possible when the property is in the name of the great grandfather. In this situation any one son of your grandfather should institute a suit for the partition of the ancestral property. If the property is an agricultural property then a suit shall be filed in the court of Tehsildar otherwise in the court of civil judge.
Read also: Can my brother relinquish his right through unregistered will?
If you don’t want to file a civil suit then prepare a family settlement deed and get a declaration of right from the civil court on the basis of that deed.
Mutation
After accomplishment of partition proceedings, move a suit for mutation of name of owner in the revenue records. The Tehsildar on the basis of partition decree or declaration decree, will mutate the name of owners in the khatauni.
Transfer ancestral property
After completion of partition and mutation your uncle can transfer his portion of land to any person either through gift or sale. He can thereafter, gift his share to his daughter in law and that gift will be legally valid.
I don’t want to live with an untrustworthy wife: What should I do? She told lies and got married to me. My wife is totally untrusted lady. After my marriage with that girl. I got to know that whatever she had said to me before marriage was false. So on which ground I have to go to court for divorce? I don’t want to continue my life with an untrusted wife.
If your wife had concealed a material fact related to the marriage then you can repudiate your marriage. You have to file a suit under Section 12 of the Hindu Marriage Act for declaring your marriage void.
If a fraud has been committed by her at the time of marriage which could have affected your consent then such a fraud will render the marriage voidable. In voidable marriage a decree of court for nullity is mandatory otherwise the marriage remains valid.
File suit within one year
You have to file a suit for nullity of marriage within one year when the fraud has been discovered. After one year you cannot file a suit under Section 12 of the Hindu Marriage Act.
Material fact
You have to prove that if the fraud would have surfaced at the time of marriage you would have never consented for the marriage.
Annulment of marriage cannot be granted unless material fact affecting marital life is concealed, A. Premchand v. V. Padmapriya, (1996) 2 CTC 620
Fraud about the caste, religion, previous marriage, abortion, birth of child before the marriage are treated as material facts which have the tendency to affect the consent of the party.
Misrepresentation
Mere misrepresentation does not constitute fraud under Section 12 HMA. Therefore, the court may dismiss your case with cost. Untrustworthiness is not equivalent to the fraud.
It is, however, your opinion that you do not want to live with your wife because she is untrustworthy. But you cannot end this nuptial knot on this hypothetical fact.
False, Fabricated Criminal Case (FIR) had been filed during 2016 by the petitioner without enclosing documentary evidence against me in the matrimonial case in Manipur U/S 156(3) which had been settled/Compromised at Haryana during 2015. She has filed a fresh criminal case (FIR) after compromise: What to do?
Filing of fresh case after compromise and violation in the terms & conditions by the petitioner. CJM & Police administration are in favour of the petitioner. Main motive to file a fresh criminal case is to recover the alimony amount paid during settlement, through administration / Magistrate/Police.
Even the High Court of Manipur had closed our petition for quashing as infructuous. In association with CJM & Police charge sheet was filed without having any documentary evidences in order to retaliate, harass, torture & ruin life of all the respondents in the FIR.
The investigating officer in the case had prepared a charge sheet under the pressure of the CJM. What remedies are left to respondents? Can the police file a charge sheet without having documentary evidence? The petitioner had narrated a story where several incidents took place but had not lodged any complaint in his nearest police station regarding the incidents.
The I.O. & CJM had not conducted a fair investigation of the complaint submitted by the petitioner. under circumstances what can the respondent do? Since 2015 respondents are moving from pillar to post.
If the facts of a fresh criminal case are the same as the FIR filed in 2016 then you should approach the High Court for quashing the current FIR. A victim cannot file a fresh first information report in respect of the same facts and incident. The High Court may quash the second FIR on this ground only.
Move a petition for quashing of FIR
In Babubhai vs. State of Gujarat and others (2010) 12 SCC 254 the Supreme Court has held that if the facts and incidence of second FIR is the same the subsequent FIR liable to be quashed.
You should move a petition in the High Court under Section 482 of the code of criminal procedure. The subsequent FIR is indeed the abuse of process of the court which has been initiated for harassing you.
In the State of Haryana vs Bhajan Lal [1992 Supp (1) SCC 335] the Supreme Court has held that it is the responsibility of the High Court to quash the criminal proceeding which is an abuse of process of the court.
Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.
State of Haryana vs Bhajan Lal [1992 Supp (1) SCC 335]
No need to run from pillar to post in such a false and fabricated FIR. You should contact a good lawyer and move a petition under Section 482 crpc. The compromise deed and quashing order of the High Court are important evidence. She cannot file another FIR after the compromise deed.
You should adduce both evidence along with the petition. In that petition you should also take plea that when the alternative remedy is available for recovery of arrear of alimony no need to file an FIR.
Court did not summons the sister in law in a domestic violence case: What to do? My case of domestic violence is pending in the judicial magistrate’s court. In which three accused have been summoned. But the court is not summoning the sister in law only because she is not residing in the sharehold house. Kindly suggest what to do?
The criminal proceeding under the Domestic Violence Act (DV Act) initiates by moving a complaint under Section 12 of the DV Act. It is a complaint case and the Magistrate, after perusal of the content and evidence of the complaint issue process (summon or warrant) under Section 204 of the Code of Criminal Procedure (crpc).
At the stage of issuance of process, the court has to examine the facts of the case and evidence adduced by the complainant. If the court finds that there is sufficient grounds to proceed further against the accused then he issues summons [Dr. C. Abraham vs Maulavi 1990 CrLJ 533].
Magistrate has to issue summon if prima facie offence is made out
If you have successfully proved that the prima facie offence is made out against the accused including the sister in law, the Magistrate has to issue process. The Magistrate cannot evaluate or appreciate evidence and facts in a detailed manner for the issuing process.
If the sister in law has committed an act of domestic violence the aggrieved person has right to file a complaint against the sister in law.
High Court can direct the Magistrate to issue summon
If you are feeling aggrieved because the Magistrate despite having prima facie case against the sister in law not issuing summons then you can move a petition before the High Court under Section 482 crpc for directing the Magistrate to issue summons.
Otherwise, you should wait till the initiation of trial. If during the trial you produce enough materials against the sister in law that she has committed an act of domestic violence, then the court will be bound to issue summons.
At that stage you should move an application under Section 319 crpc for calling your sister in law as an accused. The court after appreciation of evidence shall issue a summons against your sister in law.
It depends upon the service contract between your former company and you. If the contract permits then your wife can do business with clients of the former company.
When the terms and conditions of the contract prohibits an ex-employee to do business with its clients for a certain period then after expiry of that period you or your wife can start a business with those clients.
If there is a complete embargo on the ex-employee in respect of business with the clients of the former company that embargo is void and illegal.
If your wife has special skill and is doing business with the clients of your former company without your favour or influence then it is legal however, some contradictory provisions have been made in your service contract. Your former company cannot initiate any legal action against your wife because it does not constitute a breach of service contract.
