My friend created a child witness for giving a false statement against me. In February 2018 our workers had indulged in fighting in the course of which one worker died. My friend lodged an FIR against a few other workers and me for the offence of murder.
He influenced the child of the deceased worker to become an eyewitness of the incident. The statement of the child witness does not get corroboration from other independent evidence, but the court has relied upon him. Can the court pronounce sentence only based on the testimony of child witness?
A child is a competent witness under section 118 of the Indian Evidence Act. His competency depends upon his ability to understand the question and giving rational answer thereof. The statement of a child witness must be accurate and reliable in the facts and circumstances of the case.
Corroboration of the child witness
However, corroboration enhances the reliability of the statement, but it is not a mandatory rule. It is the court to decide whether the testimony of a child witness seems reliable or not. When the facts of the case support the statement of the child witness, then the court will rely upon without any corroboration.
The court can seek corroboration if the child witness gives a contradictory statement or seems to be a tortured witness.
In your case, he has falsely produced as an eyewitness. The prosecution has to prove his presence at the place of occurrence. A child does not employ in the factory so the prosecution must establish the purpose of his being there. If he is a chance witness, then corroboration with some independent evidence is a must.
The Supreme Court has held that:
evidence of child witness and his credibility could depend upon the facts and circumstances of each case. There is no rule of practice that in every case, the evidence of a child witness has to be corroborated by other evidence. But as prudence, the court always finds it desirable to seek corroboration to such evidence from another reliable evidence placed on the record.
Competency
The child witness must have the ability to understand the question and give a rational answer. The court can ask a few general questions to the child witness for testing such ability. If the court finds that he is a competent witness, then it proceeds to take his evidence. It is a rule of prudence for the court to satisfy itself that child witness is acceptable.
On 20 November 2019, I got an SMS of the unauthorised transaction by deducting USD 328.27 from my Standard Chartered Credit Card. But before that, I neither got an OTP on my mobile phone nor in my email id. I reported the same to the bank, and then the bank blocked my credit card and started investigation for this unauthorised electronic transaction. Bank comes out with the finding that said the transaction was secured and verified by the customer.
But I didn’t receive any “OTP” on my mobile or email. I also registered the same in cybercrime.gov.in. I need to know how the transaction happens via a 3D secured website without asking OTP from me. What to do next so that I don’t have to pay the bill for unauthorised transactions also I found the person who made the transaction also I want to know how did this incident happen so that I can make sure that this not happens to me again.
It is the prime liability of the bank to maintain a robust security system to protect its customers from any fraud. Fraud may be committed by the fault of bank, customer or a third party. Where fraudulent transaction takes place due to system failure or any technical lapses, it is called third-party fraud. In case of third-party fraud, the bank and customer have no role in the commencement of such fraud.
Following mistakes are the examples of third-party fraud:
- Sending OTP on the wrong mobile number,
- Authorisation of the transaction without permission of customer or
- Approve the transaction without explicit instruction of the customer
Zero liability of the customer towards unauthorised transaction
A customer is entitled to the zero liability where an unauthorised transaction occurs in the following events:
- Contributory fraud of the bank
- Negligence of the bank
- Deficiency of service of the bank
- Third-party breach/fraud
- System failure
In your case, the bank did not send you the message or/and email towards the fraudulent transaction. It is contributory fraud and negligence of the bank because the bank must send alerts to the customers for every online transaction and receive their response. The bank committed negligence by not addressing the warning to the customer before authorising the transaction.
Customer will entitle to zero liability if he notifies the bank within three working days of receiving the information about the unauthorised transaction. If you have informed the bank that an authorised transaction made from your credit card, then you will not pay a single penny to the bank. According to the data of RBI, banks had reported 6,801 cases of fraud involving ₹71,543 crore in this FY.
The bank mandatorily takes all the records of SMS as well as email alerts. It has to produce that logs to the customer for its satisfaction. Merely saying that the said transaction was successfully approved after validation of OTP and credit card credential is not enough.
RBI circular: zero & limited liability of customer
The Reserve Bank of India has issued circular on 6 July 2017 for customer protection and limited liability of customer on the unauthorised transaction. According to that circular, a customer is not liable to bear any loss if the unauthorised transaction took place due to negligence of the bank.
File a case for an unauthorised transaction
You can file a case before the consumer forum because it is lack of deficiency on the part of the bank. The bank did not follow the standard of protection required in respect of the online transaction. Sending alerts to the customer is a mandatory duty of the bank, and any such failure shall liable the bank to bear the loss.
The bank cannot transfer its liability to the customer in case of its contributory negligence. When the mistake occurred on the part of the bank, then it shall bear the loss. It is good that you have filed a case on the cybercrime portal.
After High Court Judgement( 2003 ), I purchased a small plot with Bank loan in Bangalore started construction of the house( 2004 ). The High Court Judge, in his final Order, mentioned that “This dismissal does not stop litigant to prove his title.” Basing on this, again loser (let’s say A ) started the new case in the lower court, now after 15 yrs, I don’t see any end for this.
I am staying in the house without any disturbance, but the case is continuing endlessly. During the initial process of trial, another party (let’s say B ) also involved and we managed to club both cases to cut short of time. Now, ‘A’ again made an application with HC ( 2014 ) saying that clubbing is not correct since, the properties are different, which is not correct.
Now HC put the case into B group and not giving any orders on clubbing and asked the lower court to halt proceedings till then. The litigants are happily passing the time and case hardly comes once in months in all this 6 yrs. Our lawyer says, not to worry, the house is in my possession. My evidence and cross-examination were over in 2010.
Question: How to take this case forward and close it early? Can lower court rewrite HC judgement? Why the HC not bothered about earlier Judgement? Is it my mistake that I bought a property after High Court Judgement?
Your case has reached an important stage because your evidence and cross-examination have finished. Now the court will appreciate the evidence and statements of the parties. After that, the court will deliver the Judgement as early as possible. Fifteen years is a very long time to accomplice a civil suit.
The direction of the High Court
You should file a petition before the high court under Article 227 of the Constitution of India for issue a direction to expedite the hearing of the civil suit. The High Court has passed a direction instead of adjudicating your rights. Therefore the Lower court cannot rewrite the Judgement.
You have possession over the property. Therefore, your right is protected. So a direction to expedite the hearing of civil suit will serve your purpose. The cause of action has changed; thus, High Court I will not interfere in the pending civil suit. You have not committed any mistake in purchasing the plot after the Judgement of the High Court. It was your right, and you have exercised it in due course of law.
My husband is living in Delhi, and I am in Kanpur. He has expelled me from the marital home and also does not want to give maintenance. Therefore, I want to file a complaint under section 125 CrPC for maintenance. Is it necessary to file the affidavit of husband and wife for filing of the complaint under section 125?
Section 125 of the code of criminal procedure provides the procedure to get a monthly allowance from the husband. Husband is bound to maintain his wife if she is living in poverty. It is the prime liability of the husband, and he cannot absolve himself from such duty. He cannot transfer this liability to any other person like parents of the wife to maintain her if she is living in her parental home.
Affidavit
An affidavit supports the facts of the application under section 125 CrPC. When the wife moves such claim under section 125, then only her testimony is mandatory. Section 125 does not require the prior permission of the husband for filing of such application. The wife has to prove that she is living in poverty, and her husband refuses to give her monetary help. These two conditions are necessary for moving that application. Therefore, the wife is bound to state those facts on affidavit. Without the oath, the court shall not admit the petition.
The consent of the husband is not necessary to initiate a proceeding under section 125. A legally wedded wife is entitled to get maintenance under section 125 CRPC. Therefore, an affidavit from the husband does not require. It is mandatory for every application that its facts must be sworn on the affidavit, this is a procedural requirement, and its compliance is mandatory.
Jurisdiction of the court
You are living in Kanpur, and your husband refuses to maintain; therefore, you can initiate a proceeding under section 125 before the family court of Kanpur. According to Section 126 of the CrPC, a wife can file an application under section 125 at the place where she resides. The court will grant maintenance from the date of filing of the application.
Sir, we are three in our family (my mother and sister). We don’t have a father. For my sister’s marriage, we need money so we planned to sell our land. But we are willing to sell only a small area of land. Now brokers and buyer pressured, compelled us to give more area of land, but we are not willing for my sister’s marriage.
We accepted that people’s deal they made unregistered sale deed. They gave 15 lacs now we said it is enough for us. We don’t want more money and also we don’t give more land for you but they threaten us to give more land or otherwise we will put suit against you, with the unregistered sale deed. Please give suggestions sir.
A registered sale deed is mandatory if the value of a property is more than one hundred rupees. Sale deed without registration is a mere document which does not any right to the buyer.
Unregistered sale deed
The Transfer of Property Act and Registration Act makes it clear that the unregistered sale deed has no legal efficacy.
In your case, the buyer will get no right and also he could not enforce that sale deed. If you denying to transfer that land, he cannot take legal recourse.
Threatening to give more land
He cannot compel you to give more land. Selling of land is a contract and compulsion renders the contract void. So you should deny to give him more land instead of 15 lac rupees.
You have taken the said amount for the sale of a particular land. So you can execute a sale deed for that land only. If he wants more land then he has to pay more money for that.
Selling off more land is a new contract therefore you need a new consideration thereof. When he does not give a fresh consideration for that land you have the right to refuse.
I had shared ex-girlfriend’s contact number on WhatsApp group of a call girl. I have 6-7 contacts saved in my contact list as call girls and they are a professional escort. After 2 days I received abusive messages on my Facebook messenger and WhatsApp. All those guys also sent me 2 screenshots.
Those people told me that they will file FIR against me in the police station, crime branch and women cell. They were using all abusing words for my parents and family. To which I told if you have anything with me keep my family away, he continued using aggressive and abusing language for my mother, father and sister.
Actually, my ex-girlfriend is the wife of one of that person. I have mistakenly shared her mobile number on the WhatsApp chat of call girls. Now her husband wants to file a case against me for sharing her number in WhatsApp group.
Electronic evidence will play a crucial role in your case. The investigating officer will be able to obtain the source of information from your mobile, even if you have deleted all records. You cannot deny the fact that you knowingly shared your ex-girlfriend's contact number to pretend she was a call girl. As a result, you have committed offenses under sections 354-D, 500, and 509 of the Indian Penal Code, as well as Section 67-A of the Information & Technology Act.
By sharing her number, you insulted the modesty of your ex-girlfriend, which is an offense under section 509 of the IPC. Disrespecting a woman is an offense of defamation under section 500 of IPC. Your intention was for someone to call her mobile and advance their sexual desire. Her husband has the right to initiate criminal proceedings against you by lodging an FIR under the aforementioned sections.
The privacy policy of WhatsApp clearly states that messages are encrypted, and no third party, not even WhatsApp, can read the transmitted messages. Therefore, you cannot say that someone else sent her contact number in the WhatsApp chat. Any information shared on WhatsApp is an electronic evidence and admissible under section 65-B of the Indian Evidence Act. Hence, this electronic evidence will prove your guilt, and you cannot deny the truth of this evidence.
It would be best to settle this matter out of court by apologizing for your actions and saying sorry to your ex-girlfriend. Her husband has not yet filed any FIR against you, giving you the opportunity to resolve the matter outside of court. Taking responsibility for your actions and apologizing will help resolve the issue before the FIR is filed. However, if her husband files an FIR, you cannot compromise because some of these offenses are non-compoundable.
