Saturday, April 22, 2017

Dis-Honour Of Cheque Cases Can Be Filed Only To The Court Within Whose Local Jurisdiction.

A Three Judge Bench Of The Supreme Court Finally Held That A Complaint Of Dis-Honour Of Cheque Can Be Filed Only To The Court Within Whose Local Jurisdiction The Offence Was Committed, Which In The Present Context Is Where The Cheque Is Dishonoured By The Bank On Which It Is Drawn. The Court Clarified That The Complainant Is Statutorily Bound To Comply With Section 177 Etc. Of The CrPC And Therefore The Place Or Situs Where The Section 138 Complaint Is To Be Filed Is Not Of High Court

following are the acts which are components of the said offence : (1) Drawing of the cheque, (2) Presentation of the cheque to the bank, (3) Returning the cheque unpaid by the drawee bank, (4) Giving notice in writing to the drawer of the cheque demanding payment of the cheque amount, (5) failure of the drawer to make payment within 15 days of the receipt of the notice. if the five different acts were done in five different localities any one of the courts exercising jurisdiction in one of the five local areas can become the place of trial for the offence under Section 138 of the Act. In other words, the complainant can choose any one of those courts having jurisdiction over any one of the local areas within the territorial limits of which any one of those five acts was done. The Court accepted the view of another two Judge Bench Judgment in Harman Electronics Pvt.Ltd. v. National Panasonic India Pvt. Ltd. (2009) 1 SCC 720. It is one thing to say that sending of a notice is one of the ingredients for maintaining the complaint but it is another thing to say that dishonour of a cheque by itself constitutes an offence. For the purpose of proving its case that the accused had committed an offence under Section 138 of the Negotiable Instruments Act, the ingredients thereof are required to be proved. What would constitute an offence is stated in the main provision. The proviso appended thereto, however, imposes certain further conditions which are required to be fulfilled before cognizance of the offence can be taken. If the ingredients for constitution of the offence laid down in the provisos (a), (b) and (c) appended to Section 138 of the Negotiable Instruments Act intended to be applied in favour of the accused, there cannot be any doubt that receipt of a notice would ultimately give rise to the cause of action for filing a complaint. As it is only on receipt of the notice the accused at his own peril may refuse to pay the amount. Clauses (b) and (c) of the proviso to Section 138 therefore must be read together. Issuance of notice would not by itself give rise to a cause of action but communication of the notice would...

Grant of bail in cases of cheating and criminal breach of trust affecting large number of people would have an adverse impact on trust of criminal justice system

Delhi High Court: Rejecting the bail application of Sunil Dahiya, MD of Vigneshwara Group of Companies  under Section 439 of the Code of Criminal Procedure, the Court held that: “ The grant of regular bail in a case involving cheating, criminal breach of trust by an agent, of such a large magnitude of money, affecting a very large number of people would also have an adverse impact not only in the progress of the case, but also on the trust of the criminal justice system that people repose. It would certainly not be safe for the society. In case the applicant accused is granted regular bail, it is also likely that he may tamper with the evidence/witnesses, or even threaten them considering that the stake for the accused is high. It is also very much likely that looking to the high stakes, the nature and extent of his involvement, and his resources, he may flee from justice.”
It is pertinent to note that Sunil Dahiya was arrested and had been in judicial custody following complaints from investors who had allegedly been duped after investing money in two projects for construction of IT parks in Gurgaon and Manesar. It is was alleged that funds to the tune of around Rs 600 crores have been siphoned off by the accused by colluding, conspiring, ganging up with his family members and illegally benefiting from the complainants’ money on the false pretext of providing lucrative returns.
Mr Dahiya was represented by Senior Counsel Arvind Nigam who argued that, the right to automatic bail under the said provision stems from the fundamental right of personal liberty as enshrined under Article 21 of the Constitution and it is violative of Article 21, if an undertrial prisoner is detained in judicial custody for an indefinite period. It is pertinent to note that Dahiya had been in judicial custody since October 30, 2014 and relied upon Sanjay Chandra v. Central Bureau of Investigation, (2012) 1 SCC 40 to support Dahiya’s application for bail.
Whereas, the  Addl. Public Prosecutor relied upon Sunil Grover v. State, 2012 SCC Online Del 3539 and tried to distinguish the situation in Sanjay Chandra from the present case, by stating that in Sanjay Chandra, exchequer was put to loss by not holding auction of government resources, however in the present case general members of the public have been directly put to loss.
The Bench of  Vipin Sanghi, J. while considering the factors to grant bail laid as down  in Dipak Shubhash Chandra Mehta v. Central Bureau of Investigation, (2012) 4 SCC 134  and relying on Neeru Yadav v. State of U.P., (2014) 16 SCC 508 dismissed the bail application. The Court also stated that ‘the applicant accused appears to be a person with deep pockets. If he could manipulate and dupe more than 1,000 investors to invest in his projects, he may as well be able to influence these investors, other witnesses and the evidence to save his own skin’ and cited Y.S. Jagan Mohan Reddy v. Central Bureau of Investigation, (2013) 7 SCC 439 in which it was held that: “Economic offences constitute a class apart and need to be visited with a different approach in the matter of bail. The economic offences having deep rooted conspiracies and involving huge loss of public funds need to be viewed seriously and considered as grave offences affecting the economy of the country as a whole and thereby posing serious threat to the financial health of the country.” The Court also concurred with the view in Sunil Grover case in which the bail of the accused was rejected by the Court on similar grounds. [Sunil Dahiya v. State (NCT of Delhi), 2016 SCC OnLine Del 5566, decided on October 18, 2016]

Free legal services by lawyer will be considered for elevation to bench: Law Minister

Union Law Minister Ravi Shankar Prasad has said pro bono legal services rendered by a lawyer will be a part of consideration while assessment for elevation to bench

The government will also take services of retired judicial officers to provide free legal aid to poor litigants through digital platforms like video conference at various district levels
                     “The government is of the view that credible transparent legal aid should also be a component while assessing a lawyer for elevation to bench,” the Law Minister said
                   “The desire to give legal aid must come from commitment, not for publicity,” Prasad said
                       The government will also avail of the services of retired judicial officers by appointing them as Nyaya Mitra to assist poor litigants who are suffering due to delay in disposal of their case in court
                        Initiating Narendra Modi government’s pro-bono legal aid movement and launching three schemes to facilitate legal aid and access to justice for poor people, the minister said: “Lawyers interested in volunteering for pro bono services can register online with department of justice. Litigants can then apply for legal aid lawyer online and seek advice online.”
                       Another scheme Tele Law, an e-governance scheme to help people from the far-flung areas to access state legal services, has been launched. People can connect to lawyers at the state legal services authority through teleconference using the common service centres opened in all districts

The pilot project will be launched across 1,800 panchayats in Uttar Pradesh, Bihar, North-East and Jammu & Kashmir. Later, the same will be extended to other states too
                    Besides, scheme Nyaya Mitra of retired judges and legal officers will be employed at district level to assist litigants whose cases have been pending for a long time

It will also help to identify cases that can be solved through Lok Adalats, and help the litigants connect to the Tele Law advisers

he scheme to be launched in 227 districts across North-East, Jammu & Kashmir, UP, Bihar, Maharashtra, Rajasthan, Orissa, Gujarat and Bengal.

Advocate Act 1961

Bar Council of India:
There shall be a Bar Council for the territories to which this Act extends to be known as the Bar Council of India which shall consist of the following members, namely .Provided that such person shall continue to carry on the duties of his office until the Chairman or the Vice-Chairman, as the case may be, of the Council, elected after the commencement of the Advocates (Amendment) Act, 1977, assumes charge of the office. .Provided that every such member shall continue to hold as member of the Bar Council of India until his successor is elected.

Functions of State Bar Councils:
(1) The functions of a State Bar Council shall be-(a) to admit persons as advocates on its roll.

Membership in International Bodies:
The Bar Council of India may become a member of international legal bodies such as the International Bar Associations or the n International Legal Aid Association, contributes such sums as it thinks fit to such bodies by way of subscription or otherwise and authorise expenditure on the participation of its representatives in any international legal conference or seminar.

Senior an other advocates:
(1) there shall be two classes of advocates, namely , senior advocates and other advocates.(2) An advocate may, with his consent, be designated as senior advocate if the Supreme Court or a High Court is of opinion that by virtue of his ability standing at the Bar or special knowledge or experience in law he is deserving of such distinction.(3) Senior advocates, shall in the matter of their practice, be subject to such restrictions as the Bar Council of India may, in the interest of the legal profession, prescribe.(4) An advocate of the Supreme Court who was senior advocate of that Court immediately before the appointed day shall, for the purposes of this section, be deemed to be a senior advocate .

Certificate of enrolment:
(1) There shall be issued a certificate of enrolment in the prescribed form by the State Bar Council to every person whose name is entered in the roll of advocates maintained by it under this Act.(2). Every person whose name is so entered in the State roll shall notify any change in the place of his permanent residence to the State Bar Council concerned within ninety days of such change.

Authority to whom applications for enrolment may be made:
An application for admission as an advocate shall be made in the prescribed form to the State Bar Council within whose jurisdiction the applicant proposes to practice.

Punishment of Advocates for misconduct:
(1) Where on receipt of a complaint or otherwise a State Bar Council has reason to believe that any advocate on its roll has been guilty of professional or other misconduct, it shall refer the case for disposal of its disciplinary committee.(2) Where an advocate is suspended from practice under clause (c) of sub section (3) he shall, during the period of suspension, be debarred from practicing in any court or before any authority or person in India.(3) Where any notice is issued to the Advocate-General under sub-section (2) the Advocate General may appear before the disciplinary committee of the State Bar Council either in person or through any advocate appearing on his behalf.

Application of sections 5 and 12 of Limitation Act, 1963:
The provisions of sections 5 and 12 of the Limitation Act, 1963, shall, so far as may be, apply to appeals under Section 37 and Section 38

General power of the Bar Council of India to make rules:
The Bar Council of India may make rules for discharging its functions under this Act and in particular, such rules may prescribe.The conditions subject to which an advocate may be entitled to vote at an election to the State Bar Council, including the qualifications or disqualification of voters, and the matter in which an electoral roll of voters may be prepared and revised by a State Bar Council.Qualifications for membership of a Bar Council and the disqualification for such membership.

Special provisions relating to certain disciplinary proceedings:

Notwithstanding anything contained in this Chapter, every advocate who is entitled a of right to practice in the Supreme Court immediately before the appointed day and whose name is not entered in any State roll may, within the prescribed time, express his intention in the prescribed form to the Bar Council of India for the entry of his name in the roll of a State Bar Council and on receipt thereof the Bar Council of India shall direct that the name of such advocate shall, without payment of any fee, be entered in the roll of that State Bar Council, and the State Bar Council concerned shall comply with such direction.

Tuesday, May 24, 2016

एक कवि की रचना........

एक कवि नदी के किनारे खड़ा था !
तभी वहाँ से एक लड़की का शव नदी में तैरता हुआ जा रहा था।
तो तभी कवि ने उस शव से पूछा
कौन हो तुम ओ सुकुमारी,

बह रही नदियां के जल में ?

कोई तो होगा तेरा अपना,

मानव निर्मित इस भू-तल मे !

किस घर की तुम बेटी हो,

किस क्यारी की कली हो तुम

किसने तुमको छला है बोलो,

क्यों दुनिया छोड़ चली हो तुम ?

किसके नाम की मेंहदी बोलो,

हांथो पर रची है तेरे ?

बोलो किसके नाम की बिंदिया,

मांथे पर लगी है तेरे ?

लगती हो तुम राजकुमारी,

या देव लोक से आई हो ?

उपमा रहित ये रूप तुम्हारा,

ये रूप कहाँ से लायी हो?

""दूसरा दृश्य----""

कवि की बाते सुनकर,,

लड़की की आत्मा बोलती है..

कवी राज मुझ को क्षमा करो,

गरीब पिता की बेटी हुँ !

इसलिये मृत मीन की भांती,

जल धारा पर लेटी हुँ !

रूप रंग और सुन्दरता ही,

मेरी पहचान बताते है !

कंगन, चूड़ी, बिंदी, मेंहदी,

सुहागन मुझे बनाते है !

पित के सुख को सुख समझा,

पित के दुख में दुखी थी मैं !

जीवन के इस तन्हा पथ पर,

पति के संग चली थी मैं !

पति को मेने दीपक समझा,

उसकी लौ में जली थी मैं !

माता-पिता का साथ छोड,

उसके रंग में ढली थी मैं !

पर वो निकला सौदागर,

लगा दिया मेरा भी मोल !

दौलत और दहेज़ की खातिर,

पिला दिया जल में विष घोल !

दुनिया रुपी इस उपवन में,

छोटी सी एक कली थी मैं !

जिस को माली समझा,

उसी के द्वारा छली थी मैं !

इश्वर से अब न्याय मांगने,

शव शैय्या पर पड़ी हूँ मैं !

दहेज़ की लोभी इस संसार मैं,

दहेज़ की भेंट छड़ी हूँ में !

दहेज़ की भेंट चढ़ी हूँ मैं !!