Embezzlement of paid electricity bills

Complaints regarding embezzlement of paid electricity bills were made by consumers in the division office of the electricity board against lower class employees. Statements of consumers were recorded in the division office. After that an FIR was lodged against the concerned employees. 

Whether statements recorded by the divisional officer of electricity board before registration of FIR have any legal value? Whether these statements come under 161 crpc statements? Whether bar of crpc 162 applies to these statements. Whether all the preliminary enquiry/ proceedings done by divisional officer before registration of FIR comes as a part of investigation? Whether contradiction of witness as per section 145 of evidence act could be done on the basis of such statements.

Investigation commences only after the recording of First Information Report. The divisional officer has recorded those statements before the lodging of FIR. Hence, those statements will not come under the purview of section 161 of the code of criminal procedure (crpc). 

The bar of section 162 crpc applies only when the investigating officer records the statement of witness in the course of investigation. That statement will not be a part of the investigation because it is not recorded by the investigating officer during the course of investigation (Section 161 crpc). 

If the prosecution produces those consumers as the prosecution witness their statements recorded by the divisional officer will have no legal value. In Tahsildar Singh And Another vs The State Of Uttar Pradesh [1959 AIR (SC) 1012] the Supreme Court has held that “A statement made to the police but not reduced to writing, could not be used for any purpose, not even for contradiction.”

If the investigating officer has not recorded the statement of witnesses under Section 161 then the statement of witnesses recorded by the divisional officer cannot be used under Section 145 Evidence Act for contradicting the witness. Embezzlement of paid electricity bills.

Tenant owns a house in the same city: Eviction of tenant

Our father had purchased three houses together in a colony, more than 50 years ago. Two on the ground floor, in which we were already living there on rent. And One house is on top of these two houses. A tenant family was on rent, the time we purchased it. This tenant is no more and his wife lives with her elder son now. Her daughter is married & settled. And though both of her sons own houses in Dehradun. Her younger son is living with his family in our house and not vacating it. 

Our family has extended and we need this house to be vacated urgently. According to the tenant this house is an allotment house and can not be vacated. Is there any new law supporting a landlord in this kind of situation? Please help and guide.

You should file an application before the Prescribed Authority under Section 21 of U.P. Urban Building Act [Act 13, 1972, for release of the building on the ground of bonafide need. The tenant owned a house in the same city. She has an alternate accommodation hence, she has to vacate this house.

Your family is extending therefore, you have a “bonafide need” of the house which is currently on letting. In Nootan Kumar vs. Additional District Judge, Banda (1993) 22 ALR 437 (SC) the Supreme Court has held that the landlord has to prove his bonafide need in order to get his property released.

Explanation 1 of Section 21 of the U.P. Urban Building Act [Act 13, 1972] explicitly mandates that if the tenant has a house in the same city then he has to vacate the building. The explanation is read as:

“where the tenant or any member of his family has built or has otherwise acquired in a vacant state or has got vacated after acquisition a residential building in the same city, municipality, notified area or town area, no objection by the tenant against an application under this subsection shall be entertained”

Explanation 1 of Section 21 of the U.P. Urban Building Act [Act 13, 1972]

Your tenant will not assail or challenge your ground of vacating the building on “bonafide need” because her son owns a house in the same city. In the following case the Allahabad High Court has held that if the tenant had a house, at any point of time, in the same city then he cannot challenge the bonafide need of the landlord.  

Section 21(1)(a) Explanation 1 of UP Act 13, 1972 prescribes for the bonafide need of the landlord. Where the tenant purchased a plot, constructed flats on it and sold them later, it clearly shows that alternative accommodation was available to him. Therefore, it is not open for the tenant to challenge the bonafide need and comparative hardship of the landlord by taking advantage of the fact that the landlord owns any other house besides premises in dispute.

Kamla Tripathi vs. Kanchan Aggarwal & anr. 2007 (1) ALJ 352

Length of tenancy is not a ground to challenge the bonafide need of the landlord. In Shamshad Ahmad and ors. vs. Tilak Raj Bajaj 2009 (1) UAD 64 (SC) the Supreme Court has held that the landlord has the right to release the building in his favour on the bonafide need even though the longevity of tenancy of fifty years. 

You have a good ground to release the building and evict the tenant on the ground of the landlord's bonafide need. 

Maintenance in case of divorce after one year of marriage

I want to know whether maintenance in case of divorce after one year of marriage is possible. I got married on 20 Nov 2019. Now we want to get separated by mutual consent. My wife is a B. Tech. & MBA but did not make any serious attempt to get a job. At the time of engagement in Jan-2019, she was doing her MBA. 

Prior to that she did some internships as well in some MNC in Gurgaon. But after getting engaged, despite getting good grades in MBA she did not make any serious attempt for a job and did not join when she got one such opportunity. 

While at XXX, after marriage, initially she tried for a digital marketing job, I even arranged for an online coaching class for her. But then she decided to apply for a job in LIC. I bought enough books for her to study. She has not shown any inclination towards study and now says she will remain a housewife but will not be doing household chores but engaged two maids at monthly rate of more than Rs.4000/pm each. 

When I asked her to study for a job, she got annoyed and is now asking for divorce by mutual consent. I have tried to give her all the possible luxuries but she is in no mood to live with me. 

When she wanted to go with her parents, I not only arranged her travel but also accompanied her to her native and stayed there for two weeks along with her parents in the hope for reconciliation. But now she is harassing and torturing me and insulting me in front of her parents. I am told no maintenance, or alimony or property division is required to be paid in case of consent divorce just after one year of marriage.

Question from: Maharashtra 

Mutual consent divorce is not possible in this circumstances

In the present facts of your case she cannot get divorce by mutual consent under Section 13-B of the Hindu Marriage Act. For the mutual consent divorce it is mandatory that spouses have not been living together for more than one years and they have agreed to leave separately. 

Therefore, the most important ingredient of divorce by mutual consent is missing in your case. The court thus, will not entertain your petition for divorce under section 13-B of the Hindu Marriage Act.  Your wife is not willing to perform her matrimonial obligations. It  proves that she is the real guilty party in this case therefore she cannot invoke any provisions of the Hindu Marriage Act. 

Maintenance

Your wife is an educated lady. She has the ability to earn But she is a jobless woman and not earning. So far as maintenance is concerned, she can not get maintenance under section 125 of the code of criminal procedure. 

Your wife has no valid ground to live separately therefore she is not entitled to get maintenance under section 125 or under Section 18 of the Hindu adoption and maintenance act. 

Subsection 4 of Section 125 of the Criminal Procedure Code specifically bars maintenance if the wife has no sufficient reason to live separately. Your wife is not performing  her matrimonial obligations therefore she is a guilty party. Such a wife cannot get maintenance under Section 18 of the Hindu adoption and maintenance act. 

Wife cannot claim partition of property in lieu of maintenance 

Wife has no right in the self acquired  or and ancestral property of the husband. Therefore the wife cannot claim partition of property in lieu of maintenance. Maintenance is a separate issue which is very much social. It is the utmost responsibility of the husband to maintain his wife and give her a good life. Wife is entitled to maintenance if 

  • she has no sufficient names to maintenance herself and 
  • there is no fault from her side.

Both the above mentioned conditions are missing in your case. Those conditions are necessary for seeking maintenance from the husband. On fulfillment of  both conditions the husband  cannot refuse to maintain. He is bound to maintain his wife even if he is jobless. 

What will happen if the husband has resigned from the job only to avoid the maintenance?  In this condition the court will also order to pay maintenance. 

Related: Can I seek divorce if wife is not ready to leave India?

Bail in dowry death cases : when the court can reject the bail

Can my son in law get bail in a dowry death case? When does the court reject the bail? My son in law has murder my daughter and hanged his body with ceiling fan. We got the information on mobile phone that my daughter has committed suicide. there was a demand for dowry, right from the beginning of the marriage. My son in law demanded a car which is out of our financial capacity. Hence, he murdered my daughter and committed dowry death. 

They are very influential people and they can manipulate the investigation. When we reached the house of my son in law we saw that the dead body of my daughter was hanging by the ceiling fan. There were so many people present and local police officers were also present. In the presence of the Deputy Superintendent the dead body of my daughter had taken down. There were several injury marks on her body. However the postmortem report says antemortem hanging but Injuries show that it was a murder.

This is a clear case of dowry death. The death has committed in the matrimonial home under unnatural circumstances. If the death has been caused within seven years of marriage in unnatural circumstances. Then it is certainly a dowry death.

The court will not grant bail if ingredients of dowry death exist

It is a settled law that when the essential elements of dowry death exist in the case the court will not grant the bail to the accused. In your case however, postmortem reports suggest that it is a suicidal hanging but the injury marks on the dead body proof that it is a postmortem hanging. 

Section 304-B of the Indian penal Code defines the dowry death and provides punishment thereof. According to it the death should be committed in the matrimonial home in unnatural circumstances and within 7 years of marriage.

Ine Vishwajeet Halder Babu Haldar and others vs State of West Bengal [2008] 1 SCC 202; the supreme court explained the ingredients of the doll death as

  • The death of a woman has caused by burn or  fatal injury or otherwise than in the normal circumstances. 
  • Such death should have occurred within seven years of marriage. 
  • She must have been subjected to cruelty or harassment by her husband or any other relative of her husband. 
  • Such cruelty or harassment has caused in the connection with demand for dowry. 

All these ingredients exist in your case therefore the court will not grant bail. The court generally does not grant bail in dowry death cases, if the death is unnatural and committed in the matrimonial home within seven years of marriage.

Demand of dowry

You have to prima facie prove that there was demand of dowry and the deceased had suffered cruelty in connection with dovery. As you have mentioned in the question, your son in law was demanding a car. This demand comes under the purview of dowry.

In Satvir Singh versus State of Punjab [2001] 6 SCC 633; the Supreme Court has held that the word dowry should be any property or valuables given or agreed to be given in connection with the marriage. 

If you have agreed at the time of marriage that you will give a car. thereafter its demand from the husband of the deceased will constitute dowry. This evidence is enough to prove that there was cruelty in connection with demand for dowry at the time of death of the deceased.

If the accused are influential persons and they can manipulate the investigation, you can transfer the investigation to another district. You can file a petition before the High Court and the section 407 of the code of criminal procedure for transfer of case to another district. Fair investigation and fair trial is a fundamental right under Article 21 of the Constitution of India.

Related: Wife committed suicide when husband was abroad: How to quash FIR?

Builder and landlord dispute so can I take my money from the builder

Builder and landlord dispute so can I take my money from the builder. Flats booked in 2009 ( not registered only have allotment letter full and final payment made by cheque) but the builder is still buying time.  The plot is still under dispute between the tenants, the landlord and the builder. No demolition done tenants are still living there , I'm a user not an investor staying on rental since 2009. Where my case stands in court of law, what are my options? Can I approach under consumer protection 2019 or this case can be sorted out in Maharera because it is 12 years now since the booking can't wait any longer.

The Builder took too much time to complete this project. He does not want to return my money. In this situation what is the option available to me against the Builder for taking money. I am very sure that the Builder will not return my money. Can I initiate any legal proceeding against the Builder for refund of money either with interest or without interest?

You can initiate legal proceeding against the Builder either in the consumer forum or before the Maharera. I think this project is not registered under the Real Estate Regulation Act. You have only an allotment letter however you have paid full price. In spite of that you can take legal action against the builder for refund of money with interest.

Preceding under RERA 

Section 31 of the Real Estate Regulation Act provides that buyers can approach the rera authority even if property is not registered under rera. So you should approach the rera authority and claim a refund of money from the builder.

There is a dispute between the Builder and landlord. That dispute has existed for more than 12 years. Therefore it is not possible for the Builder to  give the possession of the flat within time. The condition of your case suggests that you should claim a refund from the builder with interest. Section 18 of the Real Estate Regulation Act empowers the buyer to get a refund from the builder with interest. 

Interest is right of the buyer if the builder does not give or transfer the possession of flat within a stipulated time. The Builder has received the full amount of the flat. He is not in the position to perform his promise i.e. to complete the construction within the time due to builder and landlord dispute.

You can also claim the refund of money in the proceeding before the consumer forum. The consumer forum has the power to compensate the buyer for his losses. When the builder has got benefit from your money then he shall compensate you. The consumer forum will direct the builder to pay the entire amount with interest.

Allotment letter 

Buyer issues allotment letter generally after receiving an amount which is at least 10% of the value of the flat. The Builder has to execute a buyer-builder agreement after the issuing of an allotment letter. This thing did not happen in your face case therefore, it is a fault of the Builder.

Allotment letter is a legal document and the Builder cannot deny that he has not received the whole amount. You can initiate legal proceedings on the basis of an allotment letter. If the allotment letter does not reflect payment of entire amount then you should take a certified copy from the bank to prove the payment.

You should send a legal notice to the Builder and claim a refund of the entire amount with interest. Take a copy of legal notice for filing a case against the builder for return of the amount. If the Builder does not refund the money then you should file a case either before the rera authority or  before the consumer forum. you should initiate proceeding before the RERA authority because it has better enforcement power than the consumer forum.

My mother-in-law is harassing me for getting my salary

My mother-in-law is harassing me for getting my salary. She is a very cruel lady and very greedy. I am working as a bank manager in ICICI Bank and my husband is a software engineer. My husband is lower than my salary therefore my mother in law is demanding from me  to give myself to her.  She is the dominating person in our family and my husband does not want to listen to a single word against her. I have three children so I cannot give myself to her. 

My husband does not contribute a single penny for the education and care of my children. I bear the whole expenses of my children's education and basic needs. My mother in law does not allow me to go to my parent’s home. She instigates my husband to crack down on my ego. My mother in law commits domestic violence against me for my salary. She does not give me food if  I do not follow her direction. I need legal protection because my life is unsafe in my matrimonial home.

You are a victim of domestic violence therefore you should invoke the provisions of protection of women from domestic violence act against your mother in law and husband. Protection order and residence order would be the appropriate remedy in your case. You are a working Lady therefore you cannot claim monetary relief from your husband.

You should file an application under Section 12 of the protection of women from domestic violence act 2005. File that complaint for the protection and residence order. Protection order is a prohibitory order and the magistrate will prohibit your mother-in-law and husband from committing any kind of violence against you. The court may impose some restrictions such as 

  • Do not interfere in the daily life of the aggrieved person. 
  • Refrain himself from committing or attempting to commit any act of domestic violence. 
  • Don’t alienate any assets either movable or immovable. 
  • Don’t commit any specific act mentioned in the protection order.

If you are not able to file such a complaint under section 12 then you can avail the assistance of a protection officer. The protection officer will file a complaint on your behalf. She will also prepare a report towards domestic violence you are facing in the matrimonial home. The government has appointed a protection officer in each district. You can contact the officer in charge of the Mahila Thana and get the assistance of the protection officer.