Cheque dishonour case 138 NI Act has been dismissed because of delay in demand notice during covid 19. I have filed a complaint under section 138 of the negotiable instrument act on 12-02-2021 after more than ten months from the date of cause of action. The case was admitted but at the stage of trial the court has dismissed the complaint because of delay in sending the demand notice to the accused. I have sent the notice to the accused in the month of October 2020 but cheque was bounced on 3rd March 2020. Complaint was filed on 12th February 2021. There was delay but due to covid 19 I was not able to file the case within time. What action should be taken against the dismissal order?
Asked from: Haryana
You should file an appeal before the High Court under section 372 of the code of criminal procedure. The order of dismissal of complaint is erroneous because due to surge of Covid 19 it was not possible to send demand notice. However the cheque was bounced on 3rd March 2020 and lockdown was called on 24th March 2020. During this period you had to send a demand notice, but the time period prescribed for the demand notice is 30 days from the date of dishonour of cheque.
That limitation was come to end on 2nd April 2020. At the that time the lockdown was called. In the Suo Motu Writ Petition (Civil) No(s).3/2020 the Hon'ble Supreme Court has extended the limitation period for any petitions/applications/suits/appeals/all other proceedings till 15th March 2021. The court has held that:
In computing the period of limitation for any suit, appeal, application or proceeding, the period from 15.03.2020 till 14.03.2021 shall stand excluded. Consequently, the balance period of limitation remaining as on 15.03.2020, if any, shall become available with effect from 15.03.2021.
Suo Motu Writ Petition (Civil) No(s).3/2020
That extension of limitation period is also applicable to the demand notice because it is a statutory requirement that the holder of cheque must send a demand notice to the drawer within thirty days from the date of intimation of dishonour of cheque.
As per the direction of the hon'ble supreme court in the aforementioned case, you are entitled to get the benefits of extension of limitation period. The limitation period was extended within the time period prescribed for issuing demand notice. Your appeal will sustain and the appellate court may set aside the order of trial court.
Magistrate has refuses to order for further investigation. The investigating officer has filed charge sheet in lesser offence because the higher police officer has influenced the investigating officer. When my advocate presented an application for seeking order of further investigation the court has refused by saying that he has no such power. My advocate has suggested to approach the high court. What to do?
Yes, your advocate is rightly suggested to approach the high court under Section 482 of the code of criminal procedure. The Hon'ble Supreme Court has held in Sakiri Basu's case that if the judicial magistrate thinks fit he has the power to direct further investigation by exercising his supervisory power vested in him by Section 156(3) of the code of criminal procedure.
If you have grounds to prove that charge sheet is manipulated or the investigating officer has deliberately filed it for lesser offence whereas the facts are inferring the commission of more serious iffence then the high court may direct further investigation.
My sister-in-law has filed false case against me. I am a highly respected individual currently residing with my medically ill parents. Unfortunately, my sister-in-law has filed a false case against me that is damaging my reputation. What steps should I take to address this situation?
If you are facing false and baseless proceedings against you, it is recommended that you file a writ petition under Article 226 of the Constitution of India with the objective of seeking the quashing of the case. In order to obtain a successful quashing of the case, you must demonstrate that the allegations made in the FIR are prima facie false, or that no offence has been committed as per the plain reading of the FIR.
The Supreme Court, in the Bhajan Lal case, has established that if an FIR does not disclose the commission of a cognisable offence, then it should be quashed. However, it is essential to keep in mind that the High Court will not consider evidence at this stage. Therefore, if you can present the contents of the FIR and evidence that indicates the falsity of the allegations in a prima facie manner, the High Court may be inclined to quash the case.
State government has denied paying salaries to the employees of affiliated colleges because of paucity of fund. We are non-teaching staff of the seven colleges have affiliation from the XXX university. Our services are approved by the government, and we are duly appointed in accordance with the rules of the university. But the university has denied paying salaries to the employees of affiliated colleges because of paucity of fund. The appointment process for non-teaching staff at XXX University is governed by Chapter 20 of the Ist Statute.
Additionally, Statute 21.01, which refers to Section 49(e) of the 1973 Act, defines a salaried employee who is not a college teacher. Furthermore, Statute 21.02(1) empowers the management to appoint non-teaching staff. According to Statute 21.03(4), appointments made by the Committee of Management and the Principal must be submitted for approval to the Director of Higher Education. If the approval is not granted within two months of receipt, the appointments will be deemed to have been approved. In our case approval was obtained. The state government has issues a circular and denied to paying salaries.
Based on the information provided, it appears that your appointment was made in accordance with the prescribed procedures and there is no dispute regarding it. Furthermore, as per Section 60E of the U.P. State Universities Act, 1973, the responsibility of paying the salaries of teachers and other employees of the colleges lies with the state government.
It is important to note that the state government cannot retract from its mandatory obligation to bear the financial liabilities of paying salaries, which has been conferred upon it by statute. Therefore, any circular issued by the state government to absolve itself from the payment of salaries would be considered illegal as it would be in violation of the statutory provisions.
In the case of Dr. Rajinder Singh v. State of Punjab; [(2001) 5 SCC 482], the court established that no government order, notification, or circular can serve as a substitute for statutory rules that have been created with the authority of law. This means that any government directive must be in accordance with the statutory rules that have been established through legal processes.
In other words, statutory rules have greater legal weight than administrative orders or directives issued by the government. This principle is a settled position of law, meaning that it is widely accepted and established as a legal principle.
You should move a writ petition in the High Court under article 226 for quashing of the circular because that circular is ultra virus. The government cannot override the statute by a circular. Circular is an administrative order passed by the state to clarify the provisions of the statute rater then substitute. Hence, the circular is liable to be quashed.
Acquitted in criminal case but departmental enquiry is still ongoing. Despite being acquitted in a criminal case, a departmental inquiry is still underway against me. The dispute arose from the checking of vehicles used for transporting contraband psychotropic substances. An officer from the regional office planted a false story to implicate me in the case, leading to both a departmental inquiry and a criminal case being instituted against me.
The higher officer deliberately delayed the departmental inquiry with the intention of involving me in the false case. Fortunately, I was acquitted in the criminal case. However, when I approached the department to drop the departmental inquiry, they refused to do so. In this situation, I may be able to file a case against the department.
The law is clear that the mere quashing of an FIR or the acquittal of an employee in a criminal case does not affect a disciplinary inquiry. The two proceedings serve different purposes. The Supreme Court has established in various judgments that it is permissible to initiate a disciplinary inquiry based on the same allegation even after an employee has been acquitted.
The Supreme Court in the case of Karnataka Power Transmission Corpn. Ltd. v. C. Nagaraju, (2019) 10 SCC 367, has held that an acquittal by a criminal court does not prevent an employer from conducting departmental proceedings in accordance with the rules and regulations. The criminal and departmental proceedings are distinct from each other. They function in different domains and serve different purposes.
The purpose of disciplinary proceedings is to determine whether the delinquent officer engaged in conduct that warrants his removal from service or a lesser punishment. On the other hand, in criminal proceedings, the objective is to establish whether the offenses registered against the officer are proven, and if so, what sentence should be imposed on him.
If the department has enough evidence against you, then you may not be able to obtain a remedy from the high court regarding the discontinuation of the departmental inquiry. This is because if there is sufficient evidence, the high court cannot order the department to terminate the disciplinary inquiry solely based on your acquittal in criminal proceedings.
If you are facing a delay in the conclusion of the disciplinary inquiry, you can approach the high court and seek a direction for the inquiry to be completed within a specific time period. The high court has the power to fix a time frame in the writ jurisdiction and can provide relief by directing the concerned department to conclude the disciplinary inquiry in a reasonable time frame.
Want to terminate marriage and marry girlfriend. I got married on March 2023. But I still love my girlfriend and more connected with her. I just acting as couple with my wife. I am in anxiety all the time. I want to marry my girlfriend. But second marriage is prohibited. And I know I can't live without my girlfriend. Performing marriage was my biggest mistake as now I realise. I want to marry my girlfriend and want to terminate my marriage. I talked with my wife. She agreed. My question is how should I proceed? So that I can terminate my marriage and marry my girlfriend. What can be the legal consequences?
Your marriage cannot be dissolved within two months from marriage. If your wife is agreed, then you should prefer to dissolve your marriage by mutual consent. Under Section 13B of the Hindu Marriage Act, there is some precondition for getting divorce by mutual consent.
The spouses must live apart for more than one year. There is no chance to survive their marriage and they have agreed to dissolve their marriage. So, you should make arrangements for getting divorce by mutual consent.
It is important to consider your wife's feelings and be loyal to her. It would not be fair to ruin the life of an innocent woman simply because you could not live without your girlfriend. You should have thought about this before getting married. If you have decided to get married, you should stick to your decision and try to lead a happy life with your wife.
We would like to purchase a property from a person to whom it was gifted by another person. The original or first owner had owned the property through a bank loan. After clearing the loan, the property was gifted to a relative (a lady whose husband's grandmother and the original owner's mother are sisters) by the first owner. However, although she is a relative, she does not come under the definition of relative as per section 56(2) of the Income Tax Act, and sub-registrar offices in Andhra Pradesh follow the same rule. Despite this, the gift deed was accepted and registered in the name of the relative, who is now the second owner.
Our question is whether we can purchase the property from the second owner who received it as a gift from the original owner. Are there any legal issues we should know about? If so, what are they, and what steps should we take before proceeding with the purchase?
The second issue is that there are two registrations for the apartment: one for the respective flat, along with common areas, undivided share of land, and car parking, and another for the builder's share via office construction in the parking area. The builder has sold his office area of 50.8 sq. yards to all 11 owners equally after demolishing his office in the parking area. However, in our case, the original owner has given a gift only for the flat, which has been registered as a gift deed. Unlike the other owners of the other flats, the original or first owner has neither gifted nor sold 4.61 sq. yards (i.e., 1/11th part of 50.8 sq. yards) to his relative.
So, can we directly purchase the 4.61 sq. yards from the original owner, or should we ask the second owner to acquire the builder's share of land from the first owner, and then we purchase from the second owner?
The property you are interested in purchasing was gifted by the original owner to a relative who is not considered a relative under section 56(2) of the Income Tax Act, but the gift was still accepted and registered by the sub-registrar office. Before proceeding with the purchase, it is important to have the gift deed reviewed by a lawyer to ensure that it was executed and registered legally and validly. There may also be other legal issues related to the gift that should be examined by a lawyer.
Regarding the ownership of the builder's share of land, the original owner did not gift or sell a portion of it to the relative who is now the second owner. If you want to purchase that portion, you may need to approach the original owner directly. However, it is also possible for the second owner to acquire the builder's share from the original owner and then sell it to you along with the flat. Either way, it is important to have all the relevant documents reviewed by a lawyer to ensure that the transaction is legal and valid.
In addition, you should also check if there are any pending legal disputes or liens on the property, and if there are any other restrictions or obligations related to the property such as maintenance fees or taxes. It is also advisable to conduct a thorough inspection of the property to check for any physical defects or damage.
My service is terminated without giving me notice for the lack of equivalent degree i.e., B.Ed. I am working as a middle school teacher in the basic education department of Bihar. After ten years of service, I am terminated for the want of B.Ed. degree however I have completed XXX which is equivalent to the bachelor in education. In this situation I am very frustrated and having no other option to institute a suit against the government. Please suggest.
To establish that your degree is equivalent to a Bachelor in Education, you will need to provide evidence from your institute demonstrating that they have obtained authorization or permission from the relevant authority to offer the course you completed. It is a legal requirement that institutions have proper affiliation or authorization before admitting students to a particular course.
You should gather relevant documents from your institute to support your claim. However, it's important to note that the court cannot make a determination on whether a particular degree is equivalent to another degree. The legal position is well-established that judicial review does not extend to expanding the scope of prescribed qualifications or determining equivalence of qualifications.
In the case of Zahoor Ahmad Rather v. Sheikh Imtiyaz Ahmad (2019) 2 SCC 404; the Hon'ble Supreme Court upheld that the question of whether a qualification should be considered equivalent or not is within the purview of the recruiting authority and not something that can be decided by the Court in its exercise of judicial review.
So far as your termination is concerned, it has been done without affording you an opportunity of hearing. According to the principle of natural justice, the authority is bound to afford an opportunity of hearing before taking any action the employee. There should have been a departmental inquiry setup by an appropriate authority against you before passing termination order.
Your termination without being given an opportunity of hearing violates a fundamental principle of natural justice. Therefore, you may consider filing a writ petition in the high court under Article 226 of the Constitution of India. In your petition, you can seek the quashing of the termination order.
The case of Avatar Singh v. Union of India (2016) 8 SCC 471, established that a departmental inquiry is necessary before terminating a confirmed employee for suppression or submission of false information in the verification form. Therefore, you can cite this case in your petition to support your argument that your termination was unlawful. A writ petition may provide you with an opportunity to seek relief from the court and potentially reverse your termination.
Government is taking full time work from contractual employees same as regular employees: Can we claim regularisation? There is five hundred thirty-seven employees are working in the university on the post of regular strength. Only sixty-one employees are working on regular basis. When we joined the job there was clear clause in the contract that we shall not be treated as the employee of the university. Our services may be extended time to time after the gap of six months based upon our performance. We are working as a contractual employee from last seven years. Now the management team and the upper administrative team want to change the existing contractual employee with others. Can we claim regularisation?
The current established legal stance is that individuals employed on a temporary, casual, ad hoc, or contractual basis do not have the right to demand regularization or permanent employment. The case of Secretary State of Karnataka v. Umadevi, (2006) 4 SCC 1 represents a significant shift in the debate regarding the regularization of ad-hoc or temporary employees.
In this case, the Constitution Bench of the Supreme Court examined whether a state could implement a scheme to regularize the services of ad hoc/temporary/daily wage workers who were appointed in violation of the doctrine of equality, or who were appointed with a clear understanding that their employment would not lead to any right to seek regularization. The Supreme Court also considered whether courts could issue a mandamus order for the regularization or absorption of such appointees.
The supreme court in Umadevi case, has held that if a person is hired for a temporary, contractual, or casual position without following the proper selection process as defined by relevant rules and procedures, they are aware that their appointment is of a temporary nature. Therefore, they cannot use the theory of legitimate expectation to demand confirmation in the position. This is because permanent appointments can only be made through a proper selection process and, in certain cases, with consultation from the Public Service Commission.
In paragraph 53 of its judgment in the Umadevi case, the Apex Court allowed for the regularization of irregular appointments of duly qualified individuals in sanctioned vacant posts where employees had worked for 10 years or more, without the intervention of court orders.
However, the exception made in the Umadevi case is a one-time exception and only applicable to employees who had completed ten years of service as of 10th April 2006. You are appointed on purely contractual or temporary basis without following due selection process. You said that you are working on the sanctioned posts.
If it is a sanctioned post and you have been appointed by a selection committee after evaluation of your educational and other qualifications which are also mandatory for the appointment on the regular post, then you have a right to claim regularisation and the judgment of the Umadevi will not apply. In lack of facts, I cannot advice very precisely about your claim of regularisation.
The Apex Court held in the case of State of Maharashtra & Others v. Anita, reported in (2016) 8 SCC 293, held that individuals who have accepted contractual appointments are bound by the terms of their appointments and are estopped from challenging those terms. This means that once someone accepts a contractual appointment, they cannot later argue that the terms of their appointment were unfair or unjust. They are expected to fulfill their duties as per the terms of their contractual agreement.
Sir, my wife is having a physical relationship with another man and is not staying with me. The evidence of this illegal relationship has been deleted. Therefore, I do not have any proof to file an FIR against that man. Can you please tell me what should I do?
You cannot initiate legal proceedings against the person with whom your wife has illicit relationship if you have no evidence to prove adulterous relationship of your wife. It is advisable to build trust with your wife and try to obtain evidence through tactful means. Once evidence is obtained, a divorce case can be filed on grounds of adultery.
The Supreme Court has declared in Joseph Shine v. Union of India, 2018 that adultery is not an offence. However, it is important to note that the scope of the offense of adultery under Section 497 is limited compared to the broader concept of adultery as understood in divorce proceedings.
While it may not be possible to file an FIR against your wife's paramour under Section 497 IPC, you may still have the right to seek a dissolution of your marriage on the grounds of your wife's infidelity or adultery.
