When can I file complaint in cheque bounce case

When can I file a complaint about the offence of dishonour of cheque? Dishonouring of a cheque for insufficiency of the fund in the account is generally called bounce of cheque. Section 138 of the Negotiable Instrument Act 1881 envisages bounce of cheque is an offence and also provides punishment for the offence of cheque bounce.

For the initiation of a criminal proceeding for the commencement of offence it is required to make a complaint within the limitation period. No FIR shall be lodged for the offence punishable under section 138 of the Negotiable Instrument Act 1881. FIR is lodged, under section 154 of the code of criminal procedure 1973, only in respect of the commencement of cognizable offence.

Dishonour of cheque is a cognizable offence but according to section 142 of the Negotiable Instrument Act 1881, no court shall take cognizance of any offence punishable under section 138 except upon a complaint.
The complaint shall be made after the commencement of offence. The offence of dishonour of cheque has been committed when drawee of the cheque is failed to make payment of the amount to the payee.

There are three stages to be fulfilled before the filing of the complaint. First, the cheque should be presented within a period of three months from the date on which it is drawn or within the period of its validity.
Second, when the payee receives information of dishonour of cheque for the reason of insufficient fund or any other reason, he should make a demand for the payment of the said amount of money by giving a notice in writing to the drawer of the cheque within 30 days of the receipt of information from the bank.

Third, after giving a demand notice to the drawer of the cheque for the payment of the said amount of money the payee should wait for 15 days for fulfilment of that demand. The offence is said to be committed if drawer fails to make the payment of the said amount of money within 15 days of the receipt of the said notice.

That 15 day is the waiting period for the fulfilment of the demand for money. No complaint shall be filed unless these 15 days has elapsed. It may be possible that drawer can fulfil the demand on the last day of said period. Hence, no complaint can be filed within 15 days of the date of receipt of the notice.

Suit for declaration of a matrimonial status before the family court

Suit for declaration of a matrimonial status comes under the jurisdiction of family court or not is the issue. One of the spouses filed a civil suit to declare himself the husband. At the initial hearing objection filed by the opponent against the maintainability. The advise pertaining to sustainability of suit and jurisdiction of family court in respect of subject matter i.e. declaration of marital status.

I filed a suit in the family court for the declaration of matrimonial status. The opposite party has filed an objection towards the maintainability of the case. She sought rejection of suit on the basis of lack of jurisdiction. My wife married to me as per the Hindu rites and rituals. But she refused any such ceremony and planning to marry again. Her affair with some other person before our marriage was never known to us. Now the fact has surfaced, and dispute arose. I moved a civil suit but stuck in the puzzle of jurisdiction. Please help!

Asked from: Uttar Pradesh

The family has power to decide not only the issue of matrimonial status but also the validity of marriage. In Balram Yadav versus Fulamaniya Yadav AIR 2016 SC 2162, the hon'ble Supreme Court has held that:

Under Section 7(1) Explanation (b), a suit or a proceeding for a declaration as to the validity of both marriage and matrimonial status of a person is within the exclusive jurisdiction of the Family Court, since under Section 8, all those jurisdictions covered under Section 7 are excluded from the purview of the jurisdiction of the Civil Courts.

Before advent of Family Courts Act, the District Court and Magistrate have jurisdiction to decide various matter related to matrimonial disputes. There was no uniformity and cognisance was taken by more than one courts. Litigants were confused to find appropriate court because some disputes have mixed cause of civil and criminal nature.

The Family Courts Act 1984 brought uniformity in matrimonial cases. Section 7 deals with the jurisdiction of the Family Court and section 8, on the other hand, excludes the jurisdiction of other courts if the cause of action is within the jurisdiction of the family court.

According to section 7, the family court has exclusive jurisdiction in respect of these matters:

  1. Decree of nullity of marriage.
  2. Restitution of conjugal rights.
  3. Judicial separation.
  4. Dissolution of marriage or Divorce.
  5. Declaration as to the validity of the marriage.
  6. Declaration of the matrimonial status of a person.
  7. The dispute regarding property between the parties to a marriage.
  8. Pass an injunction order in respect of marital relationship.
  9. Declaration as to the legitimacy of a person.
  10. Suit for maintenance under section 24/25 Hindu marriage act and under section 125 of the code of criminal procedure.
  11. Admit a suit about guardianship of the child.
  12. Suit for custody of the child.

It is thus evident that family court has jurisdicton to decide the suit for declaration of a matrimonial status. In your case, you can file a suit before the family court for the declaration of marital status. If the family court is constituted in your district, you can present such suit directly before the family court because the family court has exclusive jurisdiction. In the absence of family court, you can file a civil lawsuit before the court of District judge.

How to produce electronic document as evidence

I am an accused in a criminal case, and I want to produce some evidence which I stored in my laptop and pen drive. How to present that electronic evidence in the trial? What is the procedure for the production of electronic evidence?

The advent of information technology has changed the scenario of crime. It also influenced a drastic impact on the judicial system. Today, most information stored in electronic devices like the server, computer, mobile, cloud storage, memory card, DVD, pen drive. 

Data stored in these devices form a distinct piece of document, i.e. electronic document. Therefore, the Indian Evidence Act includes this electronic information as a piece of documentary evidence. Hence, the court admits such an electronic record stored in these devices as evidence of the fact.

Evidence Act divides the evidence into oral and document. Section 59 of the Indian Evidence Act, provides that every fact except the content of the document or electronic record may be proved by oral evidence. Hence, except oral, all the facts may be established by the documentary evidence.

The electronic evidence is also a part of documentary evidence. Again documentary evidence is divided into primary and secondary evidence. The document itself is the primary evidence if it is in the original form. Moreover, the copy of such original document is called secondary evidence.

An electronic record is a piece of documentary evidence because stored in the electronic device. Like WhatsApp, the messages stored in the mobile phone. When I want to produce such messages as evidence, I need to convert those messages into a readable format. After that, you can present it before the court as evidence in a printable form.

When it is printed on paper or copied from the mobile or laptop, it may be possible that during such process some changes may occur. These changes can raise doubt about the genuineness of the document.

Indian Evidence Act has amended in the year 2000 to make electronic evidence admissible in a specific condition. According to section 65 A, every electronic evidence shall be proved in the manner provided in section 65 B. Section 65 B laid down the procedure for admissibility of the electronic document.

It is necessary to prove the genuineness of the electronic device and output of such equipment. These are the requirement for admissibility of electronic document:

  • The identity of the electronic device must be established.
  • The identity of the output of such a device must be proved.
  • Such a device must be in operation at the time of recording of such statement/information.
  • Such a device must be in proper custody at the time of recording of such statement/information.
  • That statement must be recorded in its original format.
  • Such device was in operation at the time of recording of such statement/information. 
  • The statement/information was fed or stored by the person having lawful control over the device.
  • A certificate must be issued by a person having lawful possession over the device or having a responsible official position in the relation of the operation of such equipment.

In the State (NCT Delhi) vs Navjot Sandhu (2005) 11 SCC; the supreme court has held that output of the electronic device is secondary evidence and it may be produced before the court as secondary evidence of the statement stored in the electronic device. Certificate, as mentioned under section 65-B(4) of the Indian Evidence Act is not necessary.

In Anvar P. V. vs P. K. Basheer (2015) 1 SCC; the supreme court has overruled the decision given by the supreme court in Navjot Sandhu case. The court has held that the identity of the electronic device and its output must be proved under Section 65-B(4). The court must follow the procedure mentioned in section 65-B. Because this section devises a complete process for admissibility of the electronic document, the output of the electronic device is not a piece of secondary evidence, and it must be proved in the manner prescribed in section 65-B.

No second FIR in same offence

No second FIR in the same offence, same incident or same occurrence. The code of criminal procedure does not allow to register more than one FIR in respect of same offence. If accused has committed more than one offences in the same transaction still there should be one FIR. Second or subsequent FIR is permissible where version of second FIR is different.

In Babubhai vs. State of Gujarat and others (2010) 12 SCC 254 the supreme court has held that in case of subsequent FIR the court has to examine the facts and circumstances of both FIRs. If court finds that second FIR relates to same offence, same occurrence, or part of same transaction then second FIR should be quashed.

In such a case the court has to examine the facts and circumstances giving rise to both the FIRs and the test of sameness is to be applied to find out whether both the FIRs relate to the same incident in respect of the same occurrence or are in regard to the incidents which are two or more parts of the same transaction. If the answer is affirmative, the second FIR is liable to be quashed. However, in case, the contrary is proved, where the version in the second FIR is different and they are in respect of the two different incidents/crimes, the second FIR is permissible. In case in respect of the same incident the accused in the first FIR comes forward with a different version or counterclaim, investigation on both the FIRs has to be conducted.

Babubhai vs. State of Gujarat and others (2010) 12 SCC 254

When does second FIR permissible?

Second FIR is permissible in discovery of new facts. When investigating officer finds larger conspiracy which was not surfaced during the investigation of first FIR then he can proceed to lodge second FIR. Discovery of new facts should form the factual foundation of the second FIR. If investigating officer did irregularity in the previous investigation and left out vital evidence then he cannot lodge second FIR merely on discovery of new facts.

In Nirmal Singh Kahlon vs. State of Punjab (2009) 1 SCC 441, the supreme court has held that "the second FIR, in our opinion, would be maintainable not only because there were different versions but when new discovery is made on factual foundations."

In T. T.Antony v. State of Kerala 2001 SCC; the supreme court has held that second FIR in respect of same offence is not permissible. Second FIR is permissible when the offence does not fall within the ambit of first FIR.

Sameness of offence is a mixed question of law and fact. The court should examine the sameness on the merits of each case. When court finds that scope of investigation entirely different from the first FIR then it can allow to conduct investigation on the basis of second FIR.

Quashing of second FIR

Where substance of allegations in second FIR is not different from the first FIR the court should quash the second FIR under section 482 of the code of criminal procedure (crpc). In Prem Chand Singh vs. State of Uttar Pradesh and another (2020) 3 SCC 54 the supreme court has held that if the sub­stratum of the two FIRs is common, the proceedings consequent to the second FIR would be unsustainable.

If there is more than one FIR in same offence then aggrieved person should approach the High Court under section 482 of crpc for quashing of subsequent FIR. He has to prove that:

  1. second FIR relates to the same incident.
  2. foundation of both FIRs is same.
  3. there is no entirely distinct occurrences.
  4. second FIR does not satisfy the test of sameness.

Lodging of two first information reports are not permissible in crpc hence, the High Court will quash the subsequent fir on above grounds. The investigating officer has option to conduct further investigation if he finds new facts. He can produce supplementary charge sheet in section 173 crpc. So, no need to lodge second FIR in the same offence. This is abuse of process of law hence, the High Court may exercise its inherent power and quash the second FIR.

Appeal against acquittal

Section 378 of the code of criminal procedure (CrPC) provides a right of appeal against acquittal. The State is responsible for filing the appeal because it plays the role of the prosecution in the criminal trial. After the amendment in section 372 CrPC, a victim also has the right to file such an appeal.

Appeal against acquittal

You can file an appeal from the order of acquittal. Furthermore, an appeal is not a matter of right. A person can file an appeal only when the law permits. Before the amendment act of 2009, the victim had no right to appeal against acquittal. Now the victim can file such appeal only when the state does not prefer an appeal against the order of acquittal.

When can the victim file an appeal under section 372 crpc?

This is a crucial question because the state (prosecution) has the prerogative to challenge the order of the trial court. In respect of an appeal against acquittal, now the state has no such prerogative. A victim has the concurrent right to prefer an appeal.  But this is not an absolute right. He can prefer such appeal only when the state (prosecution) does not file an appeal against the order of acquittal.

Section 372 CrPC is amended and now read as:

“Provided that the victim shall have a right to prefer an appeal against any order passed by the Court acquitting the accused or convicting for a lesser offence or imposing inadequate compensation, and such appeal shall lie to the Court to which an appeal ordinarily lies against the order of conviction of such Court.”

Before this amendment, the victim had the right to file a revision from the order of acquittal. The revisional court could not amend that order except to remand the case for re-trial. Thus the victim had little scope against the acquittal of the accused. Now he can exercise the right of appeal in these three situations.

  1. Against acquittal of the accused, or
  2. When the accused has convicted for a lesser offence, or
  3. Awarded inadequate compensation to the victim

Leave of the court

Section 372 crpc confers right on the victim to file an appeal but it does not provide the procedure for appeal against acquittal. Section 378 crpc provides the procedure for such an appeal. So the victim has to follow the procedure laid down in Section 378 crpc.

According to subsection 3 of section 378, crpc permission of the High Court is mandatory for appeal against acquittal. This section says that no appeal shall be entertained without leave of the High Court. Some High Courts have held that victims can prefer an appeal under section 372 crpc without prior leave of the court.

The Hon’ble Supreme Court of India has finally settled this issue. In Satya Pal Singh v. State of Madhya Pradesh [Criminal Appeal No. 1315 of 2015], the court held that a victim cannot appeal against acquittal without leave of the High Court. Thus you must get leave of the court before filing such an appeal.

The limitation period for appeal against acquittal

Section 372 crpc does not provide any limitation period for such an appeal. Subsection 5 of section 378 provides a period of limitation for appeal against acquittal. A private complainant can move an application for granting special leave to appeal within sixty days from the date of order of acquittal. In Satya Pal Singh v. State of Madhya Pradesh, the Supreme Court made clear that there is a sixty days period of limitation for such leave.

Scope of such an appeal

In the appeal, you will have an opportunity to raise all the objections against the acquittal. The appeal against acquittal has great significance to relate to the victim. You can produce any evidence to prove that the order of acquittal is illegal or unjustified.

In Chandrappa vs State of Karnataka AIR 2007 SC, it is held by the supreme court that the appellate court has vast power in appeal. It can reappreciate or reconsider all the evidence which was produced before the trial court.

Thus, an appeal is the last opportunity for you to re-make your case in the appellate court. But you cannot raise a new fact against the acquittal. You may reproduce those evidence or material which had been ignored or illegally relied by the trial court.

Power of appellate court

The appellate court can reverse the order of the trial court if it finds some impediments in the judgment. An order of acquittal raises a strong presumption of innocence in favour of the accused. Therefore, if the appellate court finds that the accused may or may not be guilty then it shall not interfere in the judgment. The benefit of the doubt always goes in favour of the accused.

Lula Ram vs Bhupat Singh AIR 2009 SC

The Supreme Court has opined that the appellate court should not disturb the finding of acquittal if two reasonable conclusions are possible from the record of the case.

State of Goa vs Sanjai Thakaran AIR 2007 SC

The supreme court holds that the order of acquittal shall be altered when an appellate court found that some manifest illegality vitiates the approach of the trial court. When a trial court conclusion would not be arrived at by any reasonable person, and the trial court gives the perverse decision.

You should file an appeal within the period of limitation. If the order of acquittal has some illegality then the appellate court may reverse the order of the trial court.

Unregistered lease

I gave my house and adjacent land for manufacturing of shoes. That house was given on lease. The lease deed was unregistered, but both parties signed it. The lease was accepted on payment of twenty thousand rupees per month as rent. 

The lessee enjoyed it for four years. That lease was for 8 years. Now I want to file a case for recovery of rent for 2 years and also for the compensation of remaining years. The lessee vacated the house without giving notice. Please guide about unregistered lease deed and opportunity to get compensation.

This lease must be registered. According to section 107 of the transfer of property act, a lease for the period of more than one year or of year to year or reserving of yearly rent must be registered. An unregistered lease may cause a severe effect on the enforcement of the right. Such deed shall not be admitted in evidence. You cannot ask for specific performance of the contract from unregistered lease deed.

An unregistered lease deed renders the lease into a month to month. It shall take shorter the period of notice from 6 months to 15 days. The lessee can terminate the lease on giving 15 days’ notice instead of 6 months. He was bound to give six months’ notice if the deed was registered. But he was bound to give only 15 days’ notice.

An unregistered lease deed cannot empower the lessee to terminate the lease without giving any notice. He is bound to give notice. You gave possession over the premises to the performance of the lease. This act renders the lease complete. This constitutes a complete contract. Therefore, you can claim compensation. He cannot deny that there is not a valid contract or a valid lease. The lease is valid in the absence of its registration under section 107 of the transfer of property act.

You can recover all due rent from him. You can also get compensation for four years because he terminated the lease without giving notice. Notice is mandatory under section 106 of the transfer of property act. That notice must be in writing. Oral notice is not effective. You can claim compensation by unregistered lease deed because the validity of lease is not in question. He has committed a breach of contract hence liable to compensate under section 73 of the Indian contract act.

Alimony of minor child

I am 34 years old divorced Gujarati woman with 9 yrs old son. And unemployed. I am living with my parents. I got less alimony don’t have money to raise my child searching for a job right now. I can’t study further due to the age limit. My question is can my son get a share of my ex-husband’s property if I get married 2nd time to another person? I don’t have any option. I’m not that much educated. I need to remarry to raise my child. Can I give him in adoption?

You should file a case against your ex-husband, before the court of the first-class Magistrate under section 125 crpc for alimony (maintenance) of your child. He is bound to give maintenance at the age of 18 years. He cannot refuge it. It does not matter that you have remarried to any other person. Your child has the right to get a share in his father’s property. He has the right of inheritance in his father’s ancestral property. If his father refuses to maintain him, he can file such case under section 125 crpc.

At the stage of the decree in a divorce case, the court should decide permanent alimony for the minor child. Such maintenance is necessary for the education, social welfare and upbringing of the child. It is the absolute liability of his father to take care of his child up to the age of 18 years if the child is not suffering from any infirmity (Amar Somnay vs Prerna Sharma AIR 2016).

However, you have custody of the child, but you have no right to give him in adoption to any other person without the consent of your ex-husband. Permission of the father is necessary for adoption if the father is alive and able to give consent. Adoption without the consent of the father is void in law, and the court shall cancel it on the application of his father.

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