In criminal proceedings, the aim is to punish an offender and proceedings is mostly between the State and the accused.
Indian Courts allow any person to file a private complaint against the accused and state will not be party to the proceedings and it will be between the complainant and the accused.
In a civil proceeding, the aim is to recover property or money, and to order compensation or to grant relief based on a right which has arisen in favour of the person seeking the relief.
Divorce by mutual consent can be obtained by Husband and Wife in terms of Section 13 B of the Hindu Marriage Act, 1955. The provisions of the said Section require that the husband and wife should be living separately for a period of more than 1 year and they are not able to live together any further.
“Living Separately” has been now defined by the Supreme Court as “not living as husband and wife and not performing marital obligation”, even if the husband and wife are living under the same roof.
A joint petition has to be filed in this regard and after the filing of the same, the Court grants a minimum period of six months (and maximum 18 months) for the parties to come again and make a statement confirming the said consent. It is only after this second consent having been given by both the parties after six months of the filing of the petition for mutual consent, that a decree for divorce is passed by the Court. If during this period of six months after the filing of the petition, any of the parties withdraws the consent, the divorce cannot be granted. Further, apart from the same, before passing a decree of divorce, the court has also to be satisfied that the consent has not been obtained by force, fraud or undue influence.
With regard to re-marriage after divorce, Section 15 of the Hindu Marriage Act, 1955, provides that after a decree of divorce has been granted, in case there is no right of appeal against the decree or if there is a right, the time has expired without an appeal having been presented or if the appeal filed has been dismissed, it shall be lawful for either party to marry again. The period of appeal as provided under Section 28 of the Hindu Marriage Act is 30 days from the date of the decree or order.
The matrimonial home is the household a woman shares with her husband; whether it is rented, officially provided, or owned by the husband or his relatives.
A woman has the right to remain in the matrimonial home along with her husband as long as she is married, though there is no definite law regarding this right.
If a woman is being pressurised to leave the matrimonial home, she can ask the Court for an injunction or “restraining order” protecting her from being thrown out. This can usually be obtained quite easily.
It is generally advisable not to leave the matrimonial home; it is easier to get a court order preventing a woman being thrown out than to get an order enforcing her right to return to it, once she had left or been thrown out.
In criminal proceedings, the aim is to punish an offender and proceedings is mostly between the State and the accused. Indian Courts allow any person to file a private complaint against the accused and state will not be a party to the proceedings and it will be between the complainant and the accused.
In a civil proceeding, the aim is to recover property or money, and to order compensation or to grant relief based on a right which has arisen in favor of the person seeking the relief.
Admissibility of Electronic Evidence –
Introduction
The inestimable benefits of the various advancements in information and communication technologies have until the enactment of the new Evidence Act in 2011 remained a matter of much debate and judicial uncertainty.
Tendering of electronic mails (“emails”) for example are usually as contentious and acrimonious as the litigation itself, with the opposite party usually relying on the hearsay rule, among other forms of objections under the old Evidence Act 1945, to prevent the admission of such electronically generated evidence.
The enactment of the Evidence Act, 2011 has attempted to correct some of the difficulties that the admissibility of electronically generated evidence do encounter in Nigerian Courts.
However, is the general perception that all electronic communication and mails are now admissible in Nigeria, correct? This Legal Alert is our contribution to the enlightenment process on the provisions of the 2011 Evidence Act regarding the admissibility or otherwise of electronically generated evidence.
Admissibility of Evidence Generally
Relevant to the admissibility of electronic evidence are the common rules governing the admissibility of evidence generally. Some of these common rules need mention in this Alert.
Under Nigerian Law, facts which are in issue, with the facts which are relevant to the facts in issue, are generally admissible in evidence.
In the 1945 Evidence Act which is now repealed, technologically generated evidence was argued to offend some of the following general rules of
Evidence:
(i)The issue of the custody and the reliability of the evidence tendered if it is not the original document.
(ii)The best evidence rule which requires that a party must produce the original document during a trial or where the original document is not available, secondary evidence of it in the form of a copy, with other corroborating notes, etc, must be produced.
(iii) The rule against the admission of hear-say evidence which forbids witnesses giving evidence on facts that they do not directly or personally witness or know about.
The underlined words above are for emphasis only.
The general basis for the admissibility of documentary evidence has not radically changed under the Evidence Act 2011 as documentary evidence is still mostly admissible where the original hard copy of such a document is produced in a Court of Law. See Section 83(1) of the Evidence Act 2011.
The Evidence Act 2011 has however expanded this basis general rule to enable the admission of electronically generated documents under certain conditions which are enumerated hereunder.
Explanatory Memorandum – Evidence Act, 2011
In its explanatory Memorandum, the Evidence Act, 2011 repealed the 1945 Evidence Act, Cap. E14, Laws of Federation of Nigeria, and enacted a new Evidence Act, 2011 which latter Act applies to all judicial proceedings in or before any Court of Law in Nigeria.
Starting with some definitions, this Alert will follow with some succinct highlights of the provisions of the Evidence Act, 2011 as they relate to electronic communication, electronic information, court processes, decided cases, etc, in Nigeria.
Definitions of “Document, “Computer”, Evidence
Section 258 (1)(d) of the Evidence Act, 2011 describes a document, for the purpose of this Legal Alert, to include “any device by means of which information is recorded, stored or retrievable including computer output”.
A Computer is in turn described to be “any device for storing and processing information, and any reference to information being derived from other information is a reference to its being derived from it by calculation, comparison or any other process.”
Evidence itself has generally been described by authors to be “the means by which facts are proved, excluding inferences and arguments’.
2011 Evidence Act, Hearsay and Electronic Evidence
Under the new Evidence Act 2011, one of the exceptions to the hearsay rule of evidence, which hearsay evidence will otherwise be inadmissible under the old repealed 1945 Evidence Act, is the provision that where even though the maker of the evidence cannot be called to give primary evidence on the “hearsay evidence”, such evidence is established to have been made and kept contemporaneously in an electronic device, in the ordinary cause of business or in the discharge of a professional duty or in acknowledgement, written or signed, of the receipt of money, goods, securities or of property of any kind. See Section 41 Evidence Act, 2011.
Where the statement and the recording of the transaction are not instantly contemporaneous, they must occur such that a Court of Law will consider it most likely that the transaction was at the time of the record, still fresh in the memory of the maker of the recorded statement.
Admissibility of Documents produced by a Computer
Section 84 of the Evidence Act 2011 provides that a statement contained in a document produced via a computer, which statement is relevant to the facts in issue, is admissible as evidence on the fulfilment of the following conditions precedent:-
(a)The computer from which the document was produced, was used regularly during the material period to store electronic information or to process information of the kind stated in the document;
(b)The computer from which the document was produced also had stored in it other information of the kind contained in the document or of the kind from which the information contained in the document was derived;
(c)That throughout the material period, the computer was operating properly; and where it was not, evidence must be provided to establish that during the period when the computer was not operating properly, the production of the document or the accuracy of its contents were not compromised or affected;
(d)That the information in the statement is reproduced or derived from the information supplied to the computer in the ordinary course of the activities in question.
Certificate Authenticating Computer Generated Documents
Section 84(4) of the Evidence Act 2011, provides that where it is desirable to give a statement in evidence by virtue of Section 84 of the Evidence Act 2011, a Certificate identifying the document containing the statement and describing the manner in which the document was produced, with the particulars of any device involved in the production of the document, signed by a person occupying a responsible position in relation to the operation of the electronic device, shall be primary and sufficient evidence of the matters stated in the Certificate.
Primary and Secondary Electronic Evidence
Primary documentary evidence is the original document itself produced for the inspection of the Court. Secondary evidence is the direct opposite of primary evidence.
Section 86 (3) (d) of the Evidence Act 2011 provides that where a number of documents have all been produced by one uniform process as in the case of printing, lithography, photography, computer or other electronic or mechanical process, each of such documents shall be the primary evidence of the contents of all the documents so produced by this one uniform process.
Electronic Signatures
An electronic signature will satisfy the legal requirement that a document must be signed where the electronic signature shows that a procedure was followed whereby the person that executed a symbol or followed some other security procedure for the purpose of verifying that an electronic signature was made to an electronic record, actually followed such an established procedure. See Section 93 (1-3)
Admissibility of other forms of Evidence
BOOKS OF ACCOUNTS. Also admissible under the new Evidence Act, 2011 are entries in books of accounts or electronic records of such books of accounts regularly kept in the ordinary course of business. However, Section 51 of this Law provides the caveat that such statements alone shall not be sufficient evidence to discharge any person of liability. See Section 53.
PUBLIC BOOKS. Any entry in any public or other official books, register or record including electronic records made by a public servant in the discharge of his official duties, stating a fact in issue or a fact relevant to a fact in issue, are now admissible evidence under the provision of Section 52 of the Evidence Act 2011.
Electronic Evidence and the Burden of Proof in Civil Cases
The burden of proof in civil cases lies on the person who would fail if no evidence at all were given or provided on either side to establish a claim or claims.
Also remember that the burden of proof in civil cases is discharged on the balance of probabilities and not beyond reasonable doubt which is the burden of proof required in criminal proceedings. See Sections 132 and 134 of the Evidence Act 2011.
Presumption and Estoppel
One of the presumptions under the Nigerian law of Evidence is that an electronic message forwarded by the originator of the message through an electronic mail server corresponds with the message as fed into his computer for transmission. But the Court shall not make any presumption as to the person to whom such message was sent without corroborating evidence. See Section 153(2) of the Evidence Act.
Lagos State Rules of Civil Procedure
It is arguable that Lagos State has the most revolutionary High Court Civil Procedure Rules in twenty-first century Nigeria. There are however no direct provisions in the High Court of Lagos State (Civil Procedure) Rules 2004 (“Lagos Civil Procedure Rules”) regulating the electronic filing and service of court processes.
Order 6 of the Lagos Civil Procedure Rules requires that all originating processes should be printed in A4 paper of good quality. Order 7 of the said Rules requires personal service of all court processes and where personal service is not possible, physical hard copies with the leave of Court can be served by pasting at the last known address of the party with the Process Server required to swear to an Affidavit of Service exhibiting the acknowledgement of the court process that was served.
Order 32 Rules 1 and 4 of the Lagos Civil Procedure Rules requires that real evidence shall be tendered during trial. Where depositions are required, they must be written with the witness available for examination and cross-examination in open Court. Order 32 Rule 6 of the Lagos Civil Procedure Rules however allows the admission of official copies of court processes filed at the High Court as original copies of the filed court processes.
Case Law on Electronic Evidence in Nigeria
The earliest and most commonly referred to case on the admissibility of electronic evidence in Nigeria is the Nigerian Supreme Court decision in Esso West Africa Inc. v. T. Oyegbola (1969) 1 NMLR 194 where the Supreme Court said obiter that “The law cannot be and is not ignorant of modern business methods and must not shut its eyes to the mysteries of the computer”.
The document that called for the decision of the Court in the Esso West Africa Inc. matter was one that was signed in quadruplicate with carbon copies through one single process with the original copy. The Supreme Court ruled on this matter, relying on the old Section 93 of the 1945 Evidence Act to hold that where a number of documents have been made by one single act of the use of carbon paper, each of such document so reproduced is primary evidence of the other quadruplicate copies.
The Esso West Africa Inc. v. T. Oyegbola case was referred to in the case of Yesufu v. A.C.B. (1976) 4SC (Reprint) 1 @ 9-14 where the document that was tendered with objection by opposing Legal Counsel, was a bank statement prepared by a Machinist from the Ledger Card of the Respondent Bank; the Machinist obtained the entries from the Respondent’s Bank day-to-day Vouchers. The bank officer that tendered the statements did not personally prepare the statements or verify that the statements were correct. Objection was raised to the admissibility of the bank statements on the grounds that the existence of a banker’s book from which the entries were extracted was not established neither was the custody and control, with the examination of the original entries established, before the lower Court admitted the bank statements.
The Supreme Court held in the Yesufu v. A.C.B case that the admission of the bank statements which entries were derived from the day-to-day vouchers of the Respondent bank did not qualify, without other supporting oral evidence, as a bankers book and therefore offended the provisions of Section 96 (1)(h) of the 1945 Evidence Act.
The Supreme Court did however refer to the obiter in Esso West Africa Inc.
(supra) and said as follows “…. it would have been much better, particularly with respect to a statement of account contained in a book produced by a computer, if the position is clarified beyond doubt by legislation as has been done in the English Civil Evidence Act, 1968.”
It is the provision of Section 5 of the English Civil Evidence Act 1968 regarding the conditions precedent for the admissibility of documentary evidence produced by a computer that were finally adopted in the 2011 Evidence Act as counselled by the Supreme Court in the 1976 case of Yesufu v. A.C.B (supra).
In another Supreme Court decision of Elizabeth Anyaebosi v. R. T. Briscoe (1987) 3 NWLR (part 59) 84 @ 96-97, the statement of account upon which the claims in this suit was reproduced and upheld were stored in and reproduced from a computer. This statement of account was admitted in evidence without objection at the High Court and in the Court of Appeal.
The Supreme Court on further appeal upheld the judgements of the lower Court to the effect that the computerised statement of account were admissible under Section 96 (1) and (2) of the now repealed Evidence Act 1945 which section allows the admission of secondary evidence upon the fulfilment of certain conditions precedent. This is in contrast with some kind of evidence which are absolutely inadmissible under Nigerian law.
In the case of Oguma Associated Companies (Nig.) Ltd v. I.B.W.A Limited (1988) 1 NSCC 395 @ 413 the Nigerian Supreme Court said obiter that Nigerian Courts need to become circumspect in interpreting Section 96 of the 1945 Evidence Act in the light of modern day banking procedures and gadgets such as computers which are now increasingly used by businesses.
The Supreme Court also said obiter that there are certain types of evidence such as hearsay evidence, unstamped and unregistered documents which are inadmissible in Law and which cannot be admitted by consent of the parties.
It was held in the Oguma Associated Companies case that while the correctness of whether the statement of account was rightly or wrongly rejected by the lower Court as there was no cross-appeal on this point, other admissible and uncontradicted evidence were provided to entitle the Respondent Bank to judgment. This appeal was accordingly dismissed.
Conclusions
There are typographical errors in the Evidence Act 2011. These minor typographical errors will have to be corrected at the first opportunity of any amendment to this legislation. See examples of these errors in Sections 71 and 206.
The subject of evidence and the admissibility of documents have remained a very technical subject for many years. The Evidence Act 2011 continued with this tradition by failing to simplify the evidence rules for both legal practitioners and non-legal practitioners, to easily read and understand the provisions of this Law.
Lastly, we adopt and recommend to you the conclusions of Zachary G. Newman and Anthony Ellis in their article entitled “The Reliability, Admissibility and Power of Electronic Evidence” published on January 25, 2011 in the Litigation Section of the American Bar Association Journal to the effect that “Electronic evidence is becoming more and more prevalent in lawsuits. Therefore, significant time should be devoted to identifying and analysing the authentication and admissibility issues relative to the electronic data involved in the litigation. Addressing these issues at the earliest possible phase is critical to a successful evidentiary presentation on summary judgement, at a hearing or at trial.
The groundwork for establishing the authenticity and admissibility should begin as soon as the information is gathered and reviewed as additional discovery may be required to ensure that the electronic evidence can be used in Court.”
The era of Information technology has brought new methods and modes of commission of crime. Each time a crime is committed whether in physical form or in cyber space, the success of prosecution largely depends on the quality of evidence presented at the trial . With the sophistication in Information technology the weapons of commission of crime are changing thereby posing a serious challenge before the investigation agencies to collect and preserve the evidence. A conviction or acquittal largely depends on the quality of evidence produced by the prosecution.
The advent information technology has brought into existence a new kind of document called the electronic record. This intangible document is of new species has certain uniqueness as compared to conventional form of documents. This document can preserved in same quality and state for a long period of time through encryption processes reducing the chance of tampering of evidence. This document can be in various forms like a simple e-mail or short message or multimedia message or other electronic forms.
The Indian Evidence Act, 1872 and Information Technology Act, 2000 grants legal recognition to electronic records and evidence submitted in form of electronic records. According to section 2(t) of the Information Technology Act, 2000 “electronic record” means data, record or data generated, image or sound stored, received or sent in an electronic form or micro film or computer generated micro fiche. The Act recognizes electronic record in a wide sense thereby including electronic data in any form such as videos or voice messages. The Information technology has made it easy to communicate and transmit data in various forms from a simple personal computer or a mobile phone or other kinds of devices. The Information Technology Amendment Act, 2008 has recognized various forms of communication devices and defines a “communicationdevice” under section 2 (ha)of the Act “communication device” means cell phones, personal digital assistance or combination of both or any other device used to communicate, send or transmit any text, video, audio or image. The Indian IT Act 2000 lays down a blanket permission for records not to be denied legal effect if they are in electronic form as long as they are accessible for future reference.
The Act amends the definition of ‘Evidence’in s 3, the interpretation clause of the Indian Evidence Act 1872, to state:
‘Evidence’ means and includes
1)
……
2)
All documents including electronic records produced for the inspection of the Court
Further, in s 4, the IT Act 2000 provides:
Section 4
Legal Recognition of electronic records.—Where any law provides that information or any other matter shall be in writing or in the typewritten or printed form, then, notwithstanding anything contained in such law, such requirement shall be deemed to have been satisfied if such information or matter is-
a) rendered made available in an electronic form; and
b) accessible so as to be usable for a subsequent reference.
The evidentiary value of an electronic record totally depends upon its quality. The Indian Evidence Act, 1872 has widely dealt with the evidentiary value of the electronic records. According to section 3 of the Act, “evidence” means and includes all documents including electronic records produced for the inspection of the court and such documents are called documentary evidence. Thus the section clarifies that documentary evidence can be in the form of electronic record and stands at par with conventional form of documents.
The evidentiary value of electronic records is widely discussed under section 65A and 65B of the Evidence Act, 1872. The sections provide that if the four conditions listed are satisfied any information contained in an electronic record which is printed on paper, stored, recorded or copied in an optical or magnetic media, produced by a computer is deemed to be a document and becomes admissible in proceedings without further proof or production of the original, as evidence of any contacts of the original or any facts stated therein, which direct evidence would be admissible.
The four conditions referred to above are:
(1) The computer output containing such information should have been produced by the computer during the period when the computer was used regularly to store or process information for the purpose of any activities regularly carried on during that period by the person having lawful control over the use of the computer.
(2) During such period, information of the kind contained in the electronic record was regularly fed into the computer in the ordinary course of such activities.
(3) Throughout the material part of such period, the computer must have been operating properly. In case the computer was not properly operating during such period, it must be shown that this did not affect the electronic record or the accuracy of the contents.
.
(4) The information contained in the electronic record should be such as reproduces or is derived from such information fed into the computer in the ordinary course of such activities
It is further provided that where in any proceedings, evidence of an electronic record is to be given , a certificate containing the particulars prescribed by 65B of the Act, and signed by a person occupying a responsible official position in relation to the operation of the relevant device or the management of the relevant activities would be sufficient evidence of the matters stated in the certificate.
The apex court in State v Navjot Sandhu while examining the provisions of newly added s 65B, held that in a given case, it may be that the certificate containing the details in sub- s 4 of s 65B is not filed, but that does not mean that secondary evidence cannot be given. It was held by the court that the law permits such evidence to be given in the circumstances mentioned in the relevant provisions, namely, ss 63 and 65 of the Indian Evidence Act 1872. Paragraph 150 of the judgment which is apposite, reads as under:
150. According to Section 63, secondary evidence means and includes, among other things, “copies made from the original by mechanical processes which in themselves insure the accuracy of the copy, and copies compared with such copies.
Section 65 enables secondary evidence of the contents of a document to be adduced if the original is of such a nature as not to be easily movable. Hence, printouts taken from the computers/servers by mechanical process and certified by a responsible official of the service-providing company can be led in evidence through a witness who can identify the signatures of the certifying officer or otherwise speak of the facts based on his personal knowledge. Irrespective of the compliance with the requirements of s 65-B, which is a provision dealing with admissibility of electronic records, there is no bar to adducing secondary evidence under the other provisions of the Indian Evidence Act 1872, namely, ss 63 and 65.
It is pertinent to note herein a recent development, that as per the IT Amendment Bill 2008 (passed by both houses of Indian Parliament and yet to be enforced), s 79A empowers the Central Government to appoint any department, body or agency as examiner of electronic evidence for providing expert opinion on electronic form evidence before any court or authority. ‘Electronic form of evidence’ herein means any information of probative value that is either stored or transmitted in electronic form and includes computer evidence, digital, audio, digital video, cellphones, digital fax machines.
Further as per Section 85 B of the Indian Evidence Act, there is a presumption as to authenticity of electronic records in case of secure electronic records ( i.e records digitally signed as per Section 14 of the IT Act,2000. Other electronic records can be proved by adducing evidence and presumption will not operate in case of documents which do not fall under the definition of secure electronic records. It is pertinent to point out herein that with the passage of the Information Technology Amendment Act 2008, India would become technologically neutral due to adoption of electronic signatures as a legally valid mode of executing signatures. This includes digital signatures as one of the modes of signatures and is far broader in ambit covering biometrics and other new forms of creating electronic signatures.
The position of electronic documents in the form of SMS, MMS and E-mail in India is well demonstrated under the law and the interpretation provided in various cases. In State of Delhi v. Mohd. Afzal & Others, it was held that electronic records are admissible as evidence. If someone challenges the accuracy of a computer evidence or electronic record on the grounds of misuse of system or operating failure or interpolation, then the person challenging it must prove the same beyond reasonable doubt. The court observed that mere theoretical and general apprehensions cannot make clear evidence defective and in admissible. This case has well demonstrated the admissibility of electronic evidence in various forms in Indian courts.
The basic principles of equivalence and legal validity of both electronic signatures and hand written signatures and of equivalence between paper document and electronic document has gained universal acceptance. Despite technical measures, there is still probability of electronic records being tampered with and complex scientific methods are being devised to determine the probability of such tampering. For admissibility of electronic records, specific criteria have been made in the Indian Evidence Act to satisfy the prime condition of authenticity or reliability which may be strengthened by means of new techniques of security being introduced by advancing technologies.
(2005) 11 SCC 600.
2003 (3) JCC 1669.
Owning a house is an important thing in ones life. However, one needs to be careful while buying land/house to avoid falling into legal hassles. A lot of care is needed from the beginning- right from site seeing till the registration of the land. The legal status of the land is one of the first issues that you should address before confirming a property. Don’t give any advance before getting confirmation about the legal status of the property.
PURCHASE OF A SITE:
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HOUSING CO-OPERATIVE SOCIETY/ LAYOUT
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PRIVATE LAYOUTS |
[Private layout with DC conversion and Panchayat approval involves little risk].
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BDA SITE [Purchase of site from original allotee] |
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BDA SITE [Purchase of site other than the BDA allotee] |
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BMP SITES |
[Though many advocates restrict the tracing of the Title to 13 years, it is advisable to verify the records for at least 43 years].
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PURCHASE OF CMC [City Municipal Council Sites] |
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GRAMATHANA SITES |
[Many village Panchayats issue form no 9 & 10, though they are not Gramathana sites. Many sites fall in green belt area, where construction of residential buildings is restricted].
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REVENUE SITES |
RevenueLand cannot be used for any purpose other than agriculture unless it is converted for non-agricultural residential use. Formation of layouts is not permitted on agricultural land. Most of the Revenue sites fall under Green Belt Area. As per zonal regulation green belt area is meant only agricultural purpose. The revenue records such has Pahani and Mutations of these lands remain in the name of the original owner even after it is purchased by others.
The following are the documents required for purchase of Converted Revenue Lands:
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Documents required for purchase of Agricultural Land:
1. Origin of the Property.
2. Flow of Title.
3. Mother/Parental Deeds.
4. Index of Land and Records of Rights.
5. Grant Certificate if any/Saaguvali chit.
6. RTC/Phani extracts for the last 30 years.
7. Relevant Mutations/Extract.
8. Endorsement from competent authority confirming that there is no acquisition proceedings.
9. Village map.
10. Survey map.
11. Akarband, Tippani, Poddi Extracts,
12. Relevant Sale Deeds.
13. C.D.P. Plan pertaining to the area.
14. 79 (A) & (B) Certificate under Land Reforms Act.
15. Land Tribunal Order, if any.
16. Certificate for change of survey number, if any,
17. Nil Tenancy Certificate,
18. Latest Tax Paid receipts.
19. Encumbrance Certificate for last 30 years.
20. Family Tree of the Vendor,
21. Endorsement from Tahsildar that the land does not fall under “Grant” or “Inam” category.
22. Phani of the Purchaser.
What is Charge Sheet?
The concept of charge sheet is derived from criminal law. Under the criminal procedure code the Magistrate frames the charges. In case of investigations made by the police, in terms of Sec.173 of Code of Criminal Procedure the officer in-charge of the police station shall forward a report in the form prescribed to the Magistrate empowered to take cognisance of the offence. The magistrate can discharge the accused person, if on consideration of the document, the charge is deemed groundless. Otherwise the magistrate is to frame the charge. In disciplinary inquiries in public and private employment the disciplinary authority frames such a charge, if he thinks fit to do so.
Basic Ingredients of a Valid Charge Sheet
The charge sheet pin-points the lapses of the employee. It is a document of indictment. The employee is called upon to explain properly or else the charges are deemed proved. But then the employee is not going to oblige and accept the charges. Issuing a charge sheet therefore calls upon the inherent obligation to prove the facts mentioned therein. It is easier to make allegations, but not so to substantiate the same, unless sufficient homework is done and proper care is taken in the expression of the allegations. It is possible to prove the charges, if the facts are correctly mentioned and supporting material by way of proof is readily made available. The employee could have in fact committed lapses bordering serious misconduct, and there could be material in support of the same. But it needs special skill to understand the exact lapses of the employee and state the same in precise terms, as is seen in the material placed as evidence. An objectivity of the mind, free from malice and bias towards the charged officer is needed to draft a proper charge sheet.
The charges should be specific and should not be expressed in generic or vague terms. Suspicions, assumptions or surmises expressed cannot constitute grounds for awarding punishment to the employee. What is needed is categorical statements. There is to be material information. Taken together, these material facts should convey an act/acts of misbehaviour and these have to be conclusively established through documents or witnesses. The documentation of the charge sheet, has, therefore, to be expressed as the initiator or pre-enquiry presentation of the allegations and thus to serve as the prime or basic record in a disciplinary case. There has to be an inherent harmony between the allegations expressed and the supporting material produced.
Charge of misconduct should not be vague. If it is so, it can be said rules of natural justice have not been followed. If the charge sheet is vague there is no reasonable opportunity to show cause. The charge sheet must be specific and must set out all the necessary particulars, irrespective of the fact, whether in view of the previous preliminary inquiry the delinquent officer knows about the charges.
What is meant by vague? Vague can be considered as the antonym of the word ‘definite’. If the ground is incapable of being understood or defined with sufficient clarity, it can be called vague.
Whether Vagueness of the Charge will vitiate the Inquiry?
The government servants have got protection under Article 311 of the Constitution of India and their services can only be terminated after giving them reasonable opportunity to show cause. The reasonable opportunity implies that the charge sheet should not be vague. If the services of an employee are terminated in disregard to provisions of Article 311 then the dismissal is wholly void and the enquiry is vitiated.
Even when the employee have got no constitutional protection, the vagueness in the expression of the charge may prejudice the employee and disable him from properly understanding the implications and submitting his defence. If this happens the enquiry is vitiated.
There can be no hasty action. The competent authority should first order an investigation and call for the facts and then only he must issue a charge sheet. But if he were to issue a charge sheet, even before a regular investigation was done, one will find it difficult to draft a charge sheet setting forth precisely the lapses of the officer.
Drafting of Charge Sheet – Constituents of Charge
The Central Vigilance Commission has stressed the importance of documentation of the charge sheets in precise and clear terms and has also pin-pointed the omissions in this important formality observed frequently. The contents of their circular letter No.3(v)/99/8 Dated the 5th October,1999 is appended hereunder for an understanding of the importance of this prime formality.
Defective Framing of Charge Sheet – Adverse Effects
(Observations of CVC about Inadequate skill in Drafting Charge Sheets)
Inadequate skill in drafting the charge sheet is one of the reasons that help the charged officials to get away with lapses/misconduct committed by them. Many cases fail before the Courts of Law just because of the defective framing of charge sheets. It has been observed by the Commission that the charge sheets are sometimes framed in a very general way and the existing practice with regard to framing of charges and imputations vary widely.
The Commission has also issued instructions earlier that are reproduced in Para 14.1 to 14.3 of Chapter X of Vigilance Manual Part I stipulating that the articles of charge should be framed with great care. Broad guidelines as to how the articles of charge should be framed have also been indicated therein. Similarly, the common mistakes that have been noticed by the Commission in framing the charge sheet have also been incorporated in Para 12.1.3 of the special Chapter on Vigilance Management in Banks and Para 20.1.3 in the Special Chapter in PSEs. These are reproduced below:-
“Special care has to be taken while drafting a charge-sheet. A charge of lack of devotion to duty or integrity or unbecoming conduct should be clearly spelt out and summarised in the Articles of charge. It should be remembered that ultimately the Inquiry Officer would be required to give his specific findings only on the Articles as they appear in the charge-sheet. The Courts have struck down charge-sheets on account of the charges framed being general or vague (S.K. Raheman Vs. State of Orissa 60 CLT 419.) If the charge is that the employee acted out of an ulterior motive that motive must be specified (Uttar Pradesh Vs. Salig Ram AIR 1960 All 543).
Equally importantly, while drawing a charge sheet, special care should be taken in the use of language to ensure that the guilt of the charged official is not pre-judged or pronounced upon in categorical terms in advance.
(Meena Jahan Vs. Deputy Director, Tourism 1974 2SLR 466 Cal).
However, the statement merely of a hypothetical or tentative conclusion of guilt in the charge, will not vitiate the charge sheet
(Dinabandhu Rath Vs. State of Orissa AIR 1960 Orissa 26 cf. Also Powari Tea Estate Vs. Barkataki (M.K.) 1965 Lab LJ 102)”.
Notwithstanding the extant instructions/guidelines many organisations continue to make avoidable mistakes while framing the charge sheets. Therefore, it is reiterated that the extant instructions on the subject as stated in the aforesaid paragraphs may be followed carefully while drafting the charge sheet, in order to avoid subsequent difficulties. The CVOs of the organisations/Ministries etc. should ensure that these instructions are implemented scrupulously.
In addition as already summarised above, an IO is required to give his finding in respect of each article of charge and reasons thereof. As the articles of charge are definite and distinct substance of the statement of imputations of misconduct or misbehaviour, the findings on each articles of charge have to be inter alia based on statement of imputations. Therefore, the Inquiry Officers are required to record their findings in respect of each allegation framed in support of an article of charge in order to ensure that inquiry reports do not suffer due to deficiencies.
[Source Circular instructions No.18 of CVC bearing office No. 3(v)/99/8 dated 5th October, 1999
on the subject “Drafting of charge- sheet”]
Drawing List of Lapses from the Report of Investigation
Various lapses of the delinquent officer listed in the Report of the Investigation should be grouped category-wise and they should then be graded according to their severity. Discretion should be exercised whether to include minor lapses, along with more serious one, as it puts a severe load on the inquiry proceedings, by way of producing several dozens of documents and witnesses from both sides. When there are a number of lapses of the same category, it may be sufficient to make a general statement and give only a few salient cases as examples, instead of reproducing all such individual instances. If there are large number of minor lapses, it may be advisable to issue a separate charge sheet under minor penalty procedure, so that the core items of irregularities are only included in a compact charge sheet issued for major penalty, for which alone oral inquiry is to be conducted.
It is advisable not to group different types of lapses in a single charge sheet, i.e. lapses with vigilance angle, administrative misconduct and technical or procedural lapses (including negligence).
Similarly it is wrong to issue a consolidated charge sheet covering the entire tenure of an officer spread over 3 to 5 years at a branch. Does it mean that the watchdog was asleep for all three years or more, and wake up only leisurely, for a one-time vigilant action, and trying to clear all the old arrears, on a wholesale turnover stretching half-a-decade?
Other Frequently Observed Deficiencies in Issuing Charge Sheets
Age-old lapses should not crop up at the time of the retirement of the officer, for a last minute encounter. These is in bad taste, and reflects the Disciplinary Authority, himself not adhering to discipline. When there is inordinate delay in taking action, it leads to the logical surmise that the management has condoned the misconduct, and dropped the case already.
Charge sheet should not be issued without holding the supporting evidence on hand. It is violative of the provisions of the DA Regulation. After issuing the charge sheet, the presenting officer should not be asked to gather evidence, but to present the evidence already gathered. It is not the function of the presenting officer to search for and locate evidence, which would imply that the charge sheet was issued originally without supporting evidence.
For one and the same set of transactions different officers should not be charge sheeted separately at different occasions, but such charge sheets should be drafted and issued as a single exercise, to be covered by one single common proceeding.
The Branch Manager is responsible for the work and integrity of subordinate officers reporting to him at the branch. Primary responsibility for the lapses of the group, may stick to the Branch Manager. But however in respect of more serious lapses, the Branch Manager should not be singled out, and charge sheeted exclusively. When there is a role for a second/junior officer, he also must be made accountable.
In fact from the study of the wording and expression of statements in a charge sheet, it can be conclusively drawn out, if the charge sheet represents a bona fide disciplinary action initiated, or an exercise in personal vindictiveness.
DIGITAL SIGNATURE
Signing the digital way
Introduction
The Central Board of Direct taxes announced on 1st July 2011, that all Individuals, HUFs and Partnership Firms who are liable to get their accounts audited under the Income Act 1961 will have to file their Income-Tax return online compulsorily using Digital signature for the financial year 2010-11.
Many people confuse a Digital Signature with an e-signature. An e-signature is a scanned image of your physical signature while Digital Signature is not a facsimile of a person’s physical signature. A document with a Digital Signature will not contain any traditional signature but it will simply state that it has been digitally signed by (name of the person signing it). To know about Digital Signatures we will first have to understand what Digital Signature Certificates are.
What is a Digital Signature Certificate?
A Digital Signature Certificate, like hand written signature, establishes the identity of the sender filing the documents through internet which sender can not revoke or deny. Digital Signature Certificates (DSC) are the digital equivalent (that is electronic format) of physical or paper certificates. Examples of physical certificates are drivers’ licenses, passports or membership cards. A digital certificate can be presented electronically to prove your identity, to access information or services on the Internet or to sign certain documents digitally. In simple words, a document can be Digitally Signed using a Digital Signature Certificate.
Why is Digital Signature Certificate (DSC) required?
Like physical documents are signed manually, electronic documents, for example e-forms are required to be signed digitally using a Digital Signature Certificate. The Information Technology Act, 2000 provides for use of Digital Signatures on the documents submitted in electronic form in order to ensure the security and authenticity of the documents filed electronically. This is the only secure and authentic way that a document can be submitted electronically. Moreover a Digital Signature is the only way one can authenticate electronic or online transactions “legally”. The potential for Digital Signatures is huge in services like e-procurement, filing of returns, filing of export-import licenses, financial transactions, digitization of land records, while using e-commerce web-sites and other transactional portals and other online transactions like internet banking. You can even encrypt information in your e-mail using a private key of a Digital Signature.
Types of Digital Signature Certificates :
There are basically 3 types (or classes) of Digital Signature Certificates Class-1, Class-2 & Class-3, each having different level of security. Class 1 Signatures are used for identification of username/email ID. However it cannot be used to sign any Statutory / Business Documents whereas Class 2 & Class-3 -DSCs are issued to the Individuals and can be used for either Personal or Business Purposes.
Class 2 signatures can be availed from Dealers / Resellers of Certifying Authority, by submitting the prescribed documents. Here, the identity of a person is verified against a trusted, pre-verified database. Class 3 signature is the highest level where the person needs to present himself or herself in front of a Registration Authority (RA) and prove his/ her identity by submitting the documents.
How does it work!!
TECHNICAL ASPECTS:
Digital signatures are an application of asymmetric key cryptography. Cryptography is primarily used as a tool to protect national secrets and strategies. It is extensively used by the military, the diplomatic services and the banking sector.
CRYPTOGRAPHY:
Cryptography is the science of using mathematics to encrypt and decrypt data. It enables a person to store sensitive information or transmit it across insecure networks (like the Internet) so that it cannot be read by anyone except the intended recipient
Data that can be read and understood without any special measures is called plaintext or clear text. Data which requires some special function to be performed on it before it can be read and understood, is called cipher text. The same plaintext, encrypted by using different keys, will result in different cipher text. The security of encrypted data is entirely dependent on two things: the strength of the cryptographic algorithm and the secrecy of the key.
Encryption is used to ensure that information is hidden from anyone for whom it is not intended, even those who can see the encrypted data. The process of reverting cipher text to its original plaintext is called decryption.
A cryptographic algorithm, or cipher, is a mathematical function (known as hash function) used in the encryption and decryption process. This hash function works in combination with a key (private key) to encrypt the plaintext (the original message).
The hash function software produces a fixed length of alphabets, numbers and symbols for any document. This is known as the hash result. However, the contents of this fixed length are never the same for two different documents. If even one letter in the document is altered, an entirely different hash result will be generated. The hash function software will always produce the same hash result for a particular message & it is practically impossible to reconstruct the original message from the hash result.
Customers are given two codes for verification —private and public keys. The public key and private key are nothing but extremely large numbers. Although the keys are mathematically related, it is almost impossible to obtain the private key by using the public key. If a particular private key was used to “sign” a message, then only the corresponding public key will be able to verify the “signature”. A Digital Signature usually contains owners name, company name and address, public key, certificate serial number, expiry date of the public key, certifying company ID, and Certifying Company’s Digital Signature.
Illustration
1) CHETAN wants to digitally sign emails and electronic contracts. So he would use computer software (asymmetric crypto system) to generate two keys, a public key and private key. CHETAN will give his public key to the whole world but will keep his private key to himself. Once he has done that, he can use his private key to sign contracts etc. Anyone can use CHETAN’s public key to verify his signature. That’s where the problem begins. How can anyone be sure which is CHETAN’s public key? What if Mr. CHETAN denies that a particular public key is actually his? To solve this problem digital signature certificates are used. CHETAN would apply to a licensed CA (Certifying Authority) for a digital signature certificate.
As part of the application process he would submit identification documents as discussed earlier. He would also send his public key to the CA. The CA would then “certify” the public key as belonging to Mr. CHETAN and issue a digital signature certificate that contains Mr. CHETAN’s public key along with information identifying him.
Now CHETAN wants to enter into a transaction with Pankaj. He composes an electronic document containing the words
I, CHETAN owe Pankaj the sum of Rs. 500 only.
Using his computer CHETAN runs this document through a hash function. The computer then performs the process on the document as discussed above.
CHETAN now uses his computer to “sign” the hash result of his document. His computer software uses his private key to perform some calculations upon the hash result. This produces a signature, which consists of some digits. This set of digits is attached to the hash result.
CHETAN now sends the original message and the signed message digest (hash result) to Pankaj. Pankaj has the same hash function software on his computer. He also has his (CHETAN’s) public key. When Pankaj receives CHETAN’s email, he runs the original document through the hash function software and generates a hash result. The computer compares this hash result with the one that was sent to him by CHETAN. If the two hash results are the same, it means that the message is unaltered.
Pankaj also verifies whether CHETAN’s private key was actually used to sign the hash result. For this Pankaj’s computer uses CHETAN’s public key. Only a message signed by CHETAN’s private key can be verified using CHETAN’s public key.
Cost and validity
A Digital Signature certificate has to be purchased from a government- licensed Certification Agency known as “Certifying Authority (CA)”. Certifying Authority (CA) means a person who has been granted a license to issue a digital signature certificate under Section 24 of the Indian IT-Act 2000. At present, there are eight such agencies (CAs) namely, IDRBT, iCERT (Customs and Central Excise) and MTNL. Tata Consultancy Services (TCS), Safescrypt (from Sify), (n)Code Solutions (from GNFC), and e-Mudhra (from 3i Infotech).
The Digital Signature Certificates come with a validity period of one-two years, implying there is a cost attached. We are not used to paying for our own signature.
While Digital Signatures are estimated to cost CAs Rs 175-225, individuals typically end up paying anyway between Rs 1,500 and Rs 3,000 —and sometimes even up to Rs 7,000 for the high-level Class-3 security certificates. The prices include a one-time payment for a crypto (USB) e-token, which contains the software. Typically, if you want to use a digital signature for sensitive transactions like e-filing of returns or internet banking & broking then the costs are between Rs. 2,200 (without token) to 3,200 (with token). Much depends on the bundling schemes & packages offered by the distributors.
Will means the legal declaration of the intention of a testator with respect to his property, which he desires to take effect after his death.
Essentials of a will – The following are the essentials of a will.
The declaration by the executant of the will, must be legal viz. should be in conformity with the provisions of the Indian Succession Act, 1925 and must be by a person competent to make it.
Every person of sound mind not being a minor can execute a will. Persons who are deaf, dumb or blind are not incapacitated for making a will, if they are able to know what they do by it. A person who is ordinarily insane may make a will during an interval in which he is of sound mind. No person can make a will, while he is in such a state of mind, whether arising from intoxication or from illness or from any other cause that he does not know what he is doing. The testator should be capable of sound and disposing mind and memory.
The declaration should be relating to the testator’s property and the testator should intend to dispose off his property after his death. If the declaration is not to take effect or if the testator wanted to carry out the intention made in the declaration immediately, the instrument will not be a will, the will should be revocable during the lifetime of the testator. If the instrument is intended to come into effect with immediate effect and to be final and irrevocable, it will not be a will.
The will made by any Hindu, Buddhist, Sikh or Jain is governed by the provisions of Chapter VI of Indian Succession Act, 1925. However, the provisions of the Indian Succession Act, 1925 are not applicable to Mohammadans, who can dispose off the property by a will in accordance with the Muslim Law. Under Muslim Law, the will executed by a Mohammadan is not required to be probated.
Every testator, not being a soldier employed in an expedition or engaged in actual warfare, or an airman so employed or engaged, or a mariner at sea, shall execute his will according to the rules.
The testator shall sign or shall affix his mark to the will or it shall be signed by some other person in his presence and by his direction. The will should be dated.
‘The will shall be attested by two or more witnesses. The attestation by the witnesses should be by the signatures of the witnesses and not by their mark and the attestation should be done after the testator has executed the will and not before. The attesting witnesses need not know the contents of the will and the testator need not disclose the nature or contents of the document.
Any movable or immovable property can be disposed off by a will by its owner. Under Mitakshara Law, a Hindu coparcener could not dispose off his undivided coparcenary property by will, even if other coparceners consented to it. But section 30 of Hindu Succession Act, 1956 provides that any Hindu may dispose off by will or other testamentary disposition any property, which is capable of being so, disposed of by him in accordance with law. The interest of a male Hindu in a Mitakshara coparcenary property is deemed to be property capable of being disposed off by him.
Any person capable of holding property can be a devisee under a will and therefore a minor, lunatic, a corporation, a Hindu deity and other juristic person can be a devisee. Sections 112 to 117 of Indian Succession Act, 1925 put some restrictions on the disposition of property by will in certain cases. Dispositions of property by will in some cases have been declared void.
Under Muslim Law, every adult Muslim of sound mind can make a will. A minor or a lunatic is not competent to execute a will. Though under Muslim Law, a person gets the majority at the age of 15 years, but in India, the case of will is governed by the Indian Majority Act according to which the minority terminates at the age of 18 years, but if the guardian has been appointed by the Court for the minor, the minority will terminate at the age of 21 years. The legatee can be any person capable of holding property and bequest can be made to non-Muslim, institution, and charitable purposes. A bequest can be made to an unborn person and a will in favour of a child who is born within six months of the date of making the will can be a legatee. But according to Shia Law, a bequest to a child in the womb is valid, even if the child is in the longest period of gestation i.e., ten lunar months.
The property bequeathed must be capable of being transferred and the testator should be the owner of the said property. The property bequeathed should be in existence at the time of death of the testator, even if it was not in existence at the time of execution of the will. A Muslim cannot bequest his property in favour of his own heir, unless the other heirs consent to the bequest after the death of the testator. The person should be legal heir at the time of the death of the testator. However, under Shia Law, a testator may bequest in favour of his heir so long as it does not exceed one third of his estate and such bequest is valid even without the consent of other heirs. The consent can be given before or after the death of the testator. But if the entire estate is bequeathed to one heir excluding other heirs entirely from inheritance, the bequest will be void in its entirety. According to Sunni Law, the consent by the heirs should be given after the death of the testator and the consent given during the lifetime of the testator is of no legal effect. Under Shia Law, the consent by the heirs should be free and a consent given under undue influence fraud, coercion or misrepresentation is no consent and the person who has given such consent is not bound by such consent. The consent by the heirs can be given either expressly or impliedly. If the heirs attest the will and acquiesce in the legatee taking possession of the property bequeathed, this is considered as sufficient consent. If the heirs do not question the will for a very long time and the legatees take and enjoy the property, the conduct of heirs will amount to consent. If some heirs give their consent, the shares of the consenting heirs will be bound and the legacy in excess is payable out of the shares of the consenting heirs. When the heir gives his consent to the bequest, he cannot rescind it later on.
Under Hanafi Law, if a Mohammedan bequest of more than one?third of the property and the heirs does not consent to the same, the shares are reduced proportionately to bring it down to one?third. Bequests for pious purposes have no precedence over secular purposes, and are decreased proportionately. Bequests for pious purposes are classified into three categories:
(i) Bequest for faraiz i.e. purposes expressly ordained in the Koran viz. hajj, zakat and expiation for prayers missed by a Muslim.
(ii) Bequest for waji-bait i.e. purposes not expressly ordained in the Koran, but which are proper viz. charity given for breaking rozas.
(iii) Bequest for nawafali i.e. purposes-deemed pious by the testator, viz. bequest for constructing a mosque, inn for travellers or bequest to poor. The bequests of the first category take precedence over bequests of the second and the third category and bequests of the second category take precedence over those of the third.
Under Shia Law, the principle of rate able abatement is not applicable and the bequests made prior in date take priority over those later in date. But if the bequest is made by the same will, the latter bequest would be a revocation of an earlier bequest.
Under Muslim law, a will may be made either orally or in writing and though in writing, it does not require to be signed or attested. No particular form is necessary for making a will, if the intention of the testator is sufficiently ascertained. Though oral will is possible, the burden to establish an oral will is very heavy and the will should be proved by the person who asserts it with utmost precision and with every circumstance considering time and place.
But if the marriage of a Muslim has been held under Special Marriage Act, 1954, the provisions of Indian Succession Act, 1925 shall be applicable and he cannot execute a will under Muslim law.
The testator may revoke his will at any time either expressly or impliedly. The express revocation may be either oral or in writing. The will can be revoked impliedly by testator transferring or destroying completely altering the subject matter of the will or by giving the same property to someone else by another will.
Though it is not necessary to register a will, but the Law recognizes a Registered will when the execution of a will is disputed and when there is an unregistered will. The provisions relating to registration of the will have been given in sections 40 and 41 of the Indian Registration Act. The testator, after his death, or any person claiming as executor or otherwise under a will, may present it to any Registrar or Sub Registrar for registration. No time limit has been prescribed for registering the will and a will may be presented for registration at any time.’ A will presented for registration by the testator may be registered in the same manner as any other document. A will presented for registration by any other person entitled to present it shall be registered, if the registering officer is satisfied
(a) that the will or authority was executed by the testator;
(b) that the testator is dead; and
(c) that the person presenting the will is entitled to present the same.
The registration of will is not the proof of the testamentary capacity of the testator, as the Registrar is not required to make an enquiry about the capacity of the testator except in case the testator appears to him to be a minor or an idiot or lunatic.
Codicil means an instrument made in relation to a will and explaining, altering or adding to its dispositions and shall be deemed to form part of the will. The codicil is generally made to make slight changes in the will, which has already been executed. A codicil cannot alter a will more than what is necessary to carry out the testator’s intention as evidenced by the will and the codicil.
Codicil means an instrument made in relation to a will and explaining, altering or adding to its dispositions and shall be deemed to form part of the will. The codicil is generally made to make slight changes in the will, which has already been executed. A codicil cannot alter a will more than what is necessary to carry out the testator’s intention as evidenced by the will and the codicil
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
AURANGABAD BENCH, AURANGABAD
CRIMINAL WRIT PETITION NO. 30 OF 2011
Rajendra Marga Gaikwad,
age 40 years, occ. Business,
Proprietor ‘Yashraj’ Agencies S.No.
143/1/1 Tathawade Chowk,
Opp. Savani Transport Co.
Tathawadegaon, Pune-411033 and
R/o Samrat Nagar, Near Budhavihar,
Near Kate Petrol Pump,Pimple
Saudagar, Pune-411027 …Petitioner
(Original Accused)
VERSUS
Kail Limited (which is formerly
known as Kitchen Appliances
(India) Ltd.), a company
incorporated under the
Companies Act, 1956, having its
Corporate office at C-6,
Ashok Steel Compound,
159, C.S.T. Road, Santacruz (East),
Mumbai-400098 (India and
Administrative and Registered Office
at Auto Cars Compound, Adalat
Road, Aurangabad-431005 …Respondent
(Original Complainant)
2 crwp30.11
…..
Shri P.R.Katneshwarkar, advocate holding for
Shri S.R.Andhale, advocate for the petitioner
Shri L.B.Palod, advocate for the respondent
…..
CORAM : SHRIHARI P.DAVARE, J.
DATE OF RESERVING
THE JUDGMENT : 01.08.2011
DATE OF PRONOUNCING
THE JUDGMENT : 10.08.2011
J U D G M E N T :
1 Rule. Rule made returnable forthwith. With the
consent of the learned counsel for the parties, taken up for final
hearing.
2 The controversy in the present petition revolves
around the aspect of territorial jurisdiction regarding filing of the
complaint under Section 138 of the Negotiable Instruments Act,
and the petitioner herein i.e. original accused has filed the
present petition against the respondent i.e. original complainant
under Article 227 of the Constitution of India and prayed that
the impugned order passed on 23.9.2010, by the learned 10th
3 crwp30.11
Joint Judicial Magistrate, First Class, Aurangabad, below Exh.
13, in Summary Criminal Case No. 1077 of 2010 be quashed
and set aside.
FACTUAL MATRIX : –
3 The parties hereinafter are referred to as per their
original status i.e. ‘the complainant’ and ‘the accused’.
The petitioner (original accused) is the proprietor of
Proprietory Firm, namely ‘Yashraj Agencies’ and he is carrying
on the business of sale and purchase of various electronic
items at Tathawadegaon, Pune. The detailed address thereof
is given in the title clause of the present petition. He claims
that he looks after the day today affairs and management of the
said Company and is responsible for the entire dealings of the
said Firm and is solely liable to pay the dues to the complainant
Company, if any.
4 The complainant is a Company incorporated under
the Companies Act and having its corporate office at Mumbai
and administrative and registered office at Aurangabad and is
carrying on business of sale and purchase of various electronic
items, such as colour Television Sets, VCD, DVD, Audios, etc.
and having Branches throughout the country including Pune.
5 The complainant filed a complaint against the
accused under Section 138 of the Negotiable Instruments Act,
through its power of attorney holder Sunil Chandrakant
Bhukele, who is authorised to file the complaint on behalf of the
Company at Aurangabad. It is alleged in the said complaint that
the accused purchased electronic items from the complainant
and for the repayment of the said amount, the accused issued
cheque of Rs.3,36,751/- bearing No. 124636, dated 1.8.2009,
drawn on Indrayani Cooperative Bank Limited, Pimpri, Pune.
The complainant presented the said cheque for encashment
purpose through its banker H.D.F.C. Bank, Aurangabad.
However, the said cheque was dishonoured and returned
unpaid with the Bank memo, dated 26.11.2009, with the
endorsement “funds insufficient”. The accused’s banker
informed the said fact of dishonour of said cheque to the
complainant’s banker by its memo, and complainant’s banker
in turn informed to the complainant by memo on 8.12.2009.
Hence, the complainant issued demand notice dated
24.12.2009 to the accused and called upon him to make the
payment of the said cheque at Aurangabad. However, the
accused failed to comply with the requisitions contained in the
said notice in spite of the receipt thereof. Hence, the
complainant filed the complaint against the accused under
Section 138 of the Negotiable Instruments Act before the
learned Judicial Magistrate, First Class, Aurangabad.
6 The accused appeared in the said complaint and
preferred an application Exh.13 on 31.7.2010 and raised the
objection in respect of the territorial jurisdiction contending that
as per Section 177 of the Code of Criminal Procedure, the
cause of action for the offence arose at Pune, and therefore,
the learned Judicial Magistrate, First Class, Aurangabad has no
jurisdiction to entertain and try the said complaint, and hence,
requested the learned Judicial Magistrate, First Class,
Aurangabad to return the said complaint for presentation
thereof before the proper forum/prayed for dismissal of the said
complaint.
7 After hearing the rival submissions advanced by the
learned counsel for the accused and the complainant, the
learned 10th Joint Judicial Magistrate, First Class, Aurangabad,
passed an order on 23.9.2010 and held that the said court has
territorial jurisdiction to entertain and try the said complaint,
relying upon the judgment in the case of K. Bhaskaran of Apex
Court and declined to hold that the Pune court shall have
jurisdiction, as contended by the accused, and consequently,
dismissed the said application.
8 Being aggrieved and dissatisfied by the said order,
dated 23.9.2010, the accused preferred the present writ petition
for the prayers as set out herein above.
SUBMISSIONS : –
9 Learned counsel for the petitioner (original accused)
submitted that Chapter XIII comprising Sections 177, 178 and
179 of the Code of Criminal Procedure deals with the territorial
jurisdiction aspect of the criminal courts in inquiries and trials,
and it is submitted that in the judgment of the Apex Court, in
the case of K. Bhaskaran vs Sankaran Vaidya and Co.,
reported at (1999) 7 SCC 510, the said aspect has been aptly
dealt with and the Apex Court opined that the offence under
Section 138 of the Negotiable Instruments Act can be
completed only with the concatenation of a number of acts,
namely (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; and (5)
failure of the drawer to make payment within 15 days of the
receipt of the notice. It was opined that 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
and the complainant would be at liberty to file the complaint at
any of those places, as regards the requirement of giving notice
and also receipt thereof by the accused, it was stated.
10 Learned counsel argued that the said issue of
territorial jurisdiction was further developed and enunciated by
the Apex Court in the case of Harman Electronics (P) Ltd. Vs
National Panasonic India Ltd., reported at 2009 (1) SCC 720
and relying upon the said case, it was argued that the crucial
question is whether any part of the cause of action arose within
the jurisdiction of the Aurangabad court, in terms of Section 177
of the Code of Criminal Procedure, since it is the place where
offence was committed. In essence, it is the cause of action for
initiation of the proceedings against the accused. Accordingly, it
is submitted that the court derives the jurisdiction only when the
cause of action arose within its jurisdiction. It is also
canvassed that issuance of notice by itself would not give rise
to the cause of action, but the communication of the notice
would.
11 Thus, relying upon the said Ruling, learned counsel
for the accused canvassed that the whole transaction between
the accused and the complainant took place at Pune and even
the disputed cheque in question was issued by the accused to
the complainant at Pune and the drawee bank of the said
cheque was situated at Pune and the said cheque was
dishonoured at Pune and only by presenting the said cheque
9 crwp30.11
by the complainant from Aurangabad for realisation and
issuance of demand notice from Aurangabad after dishonour of
the said cheque and having administrative and registered office
of the complainant at Aurangabad, will not confer jurisdiction
upon court at Aurangabad and considering Sections 177 and
178 of the Code of Criminal Procedure, having conjoint reading
of Section 138 (a), (b) and (c) of the Negotiable Instruments Act
therewith, the only irresistible conclusion that can be drawn is
that Pune court shall have jurisdiction, and therefore, prayed
that present petition be allowed.
12 Learned counsel for the complainant countered the
said arguments vehemently and submitted that the
complainant’s administrative and registered office is situated at
Aurangabad, although it’s Branch office is situated at Pune and
disputed cheque in question was issued by the accused to the
complainant at Pune and the said cheque was presented by the
complainant for realisation through its collecting banker
H.D.F.C. Bank at Aurangabad and it was dishonoured and was
returned unpaid and the intimation thereof was received by the
complainant through its collecting banker at Aurangabad and
the complainant issued the demand notice on 24.12.2009 to the
accused from Aurangabad and called upon the accused to
make payment of the said dishonoured cheque at Aurangabad,
and accordingly, the accused failed to make the payment within
15 days from the date of receipt of the notice at Aurangabad, as
called upon to him by the said demand notice, and therefore, it
is submitted that the offence was constituted at Aurangabad
and the cause of action arose at Aurangabad, and hence,
Aurangabad court only has jurisdiction to entertain and try the
complaint filed by the complainant.
13 Moreover, it is also canvassed by the learned counsel
for the complainant that it was agreed between the parties that
the transaction is subject to the jurisdiction of Aurangabad and
the said term is mentioned on the invoice and accepted by the
accused, and hence, it is submitted that the jurisdiction has
been conferred upon Aurangabad court only.
14 Learned counsel for the complainant relied upon the
judgment of the Division Bench of this court in the case of
Preetha S. Babu, Ernakulum vs Voltas Ltd., Chochin and
another, reported at 2010 (3) Mh.L.J. 234, (Hon’ble Smt. Justice
Ranjana Desai and Hon’ble Smt. Justice Mrudula Bhatkar),
wherein afore said both the judgments in the cases of K.
Bhaskaran and Harman Electronics (P) Ltd., rendered by
Hon’ble Supreme Court were discussed and it was held that if
the complainant calls upon the accused to make payment at a
place mentioned in the demand notice and if the accused fails
to make payment at that place, part of cause of action would
arise at that place.
15 Learned counsel for the complainant relied upon the
latest Ruling of Single Judge (Hon’ble Shri Justice J.H.Bhatia)
of this court in the case of ASR Systems Pvt. Ltd. New Delhi
and another vs Kimberly Clark Hygiene Products Pvt. Ltd. Mann
and another, reported at 2011 (4) Mh.L.J. 275, wherein it is
held as follows :
“ That in the case of dishonour of cheque and
as regards the territorial jurisdiction of the court
in the event of cheque issued by the accused at
Delhi against their accounts maintained with
the banks at Delhi and the cheque deposited
by the complainant at Pune bank for
presentation to the drawee bank at Delhi, the
complainant’s banker at Pune did not become
banker to whom the cheque was presented and
notice issued by the complainant from Pune
making demand of money of the bounced
cheques. Thereupon the accused was
expected to make payment at Pune and on
failure to make the payment, the court at Pune
had jurisdiction to entertain and decide the
complaint [2000 (1) Mh.L.J.(SC)193] relied
upon.“
16 Hence, learned counsel for the complainant asserts
that Aurangabad court only shall have jurisdiction to entertain
and try the complaint filed by it and learned Trial Court has
rightly rejected application Exh.13 preferred by the accused, by
order, dated 23.9.2010 raising objection regarding territorial
jurisdiction and no interference therein is called for and the
present petition, which bears no substance, be dismissed.
CONSIDERATION : –
17 Considering the rival submissions advanced by the
learned counsel for the parties and also after having gone
through the judicial pronouncements, cited by them, carefully, it
is necessary to reproduce relevant provisions of the Code of
Criminal Procedure and the Negotiable Instruments Act, in
respect of territorial jurisdiction, as stated below :-
“ Section 177 of the Code of Criminal Procedure –
Ordinary place of inquiry and trial : – Every offence shall
ordinarily be inquired into and tried by a Court within whose
local jurisdiction it was committed.
Section 178 of the Code of Criminal Procedure –
Place of inquiry or trial : –
(a) When it is uncertain in which of several local
areas an offence was committed; or
(b) where an offence is committed partly in one local
area and partly in another, or
(c) where an offence is continuing one, and continues
to be committed in more local areas than one, or
(d) where it consists of several acts done in different
local areas,
it may be inquired into or tried by a Court having jurisdiction
over any of such local areas.
Section 179 of the Code of Criminal Procedure –
Offence triable where act is done or consequence ensues :-
When an act is an offence by reason of anything which has
been done and of a consequence which has ensued, the
offence may be inquired into or tried by a Court within whose
local jurisdiction such thing has been done or such
consequence has ensued. “
“ Section 138 of the Negotiable Instruments Act
Dishonour of cheque for insufficiency, etc., of funds in the
account :-
………………….. …………….
(a) the cheque has been presented to the
bank within a period of six months from the date
on which it is drawn or within the period of its
validity, whichever is earlier;
(b) the payee or the holder in due course
of the cheque, as the case may be, makes a
demand for the payment of the said amount of
money by giving a notice in writing, to the
drawer of the cheque, within thirty days of the
receipt of information by him from the bank
regarding the return of the cheque as unpaid;
and
(c) the drawer of such cheque fails to
make the payment of the said amount of money
to the payee or as the case may be, to the
holder in due course of the cheque within fifteen
days of the receipt of the said notice.
…………………….. ……………….. “
18 Keeping in mind the aforesaid relevant provisions
pertaining to the territorial jurisdiction, and coming to the case
of Division Bench of this court in Preetha S. Babu vs Voltas Ltd.
(supra), wherein it is observed as follows :-
“ 9 It is necessary to see how the
Supreme Court proceeded to deal with the
question of jurisdiction. The Supreme Court
referred to Chapter 13 of the Code of Criminal
Procedure, 1973 (for short, “the Code”) which
pertains to jurisdiction of the criminal courts in
inquiries and trials. The Supreme Court referred
to Section 177 of the Code which says that
“every offence shall ordinarily be inquired into
and tried by a court within whose local
jurisdiction it was committed.” The Supreme
Court observed that Section 177 has been
framed by the legislature thoughtfully by using
the precautionary word `ordinarily’ to indicate
that the rule is not invariable in all cases. The
Supreme Court then referred to Section 178 of
the Code which pertains to place of inquiry or
trial. It was observed that Section 178 suggests
that if there is uncertainty as to where, among
different localities, the offence would have been
committed, the trial can be had in a court having
jurisdiction over any of those localities. The
Supreme Court observed that this provision has
further widened the scope by stating that in case
where the offence was committed partly in one
local area and partly in another local area, the
court in either of the localities can exercise
jurisdiction to try the case. The Supreme Court
then turned to Section 179 of the Code and
observed that Section 179 of the Code stretches
its scope to a wider horizon. Section 179 of the
Code states that when an act is an offence by
reason of anything which has been done and of
a consequence which has ensued, the offence
may be inquired into or tried by a court within
whose local jurisdiction such thing has been
done or such consequence has ensued.
Therefore, the court within whose local
jurisdiction the consequences ensue can also
have jurisdiction to try that offence. The
Supreme Court cautioned that the above
provisions of the Code must be borne in mind
when the question regarding territorial
jurisdiction of the court to try the offence is to be
determined.
10 The Supreme Court then stated the
components of offence under Section 138 of the
NI Act. Paragraph 14 of the said judgment
needs to be quoted.
“14. The offence under Section 138 of
the Act can be completed only with the
concatenation of a number of acts. The
following are the acts which are
components of the said offence : (1)
17 crwp30.11
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.”
11 The Supreme Court then observed
that it is not necessary that all the above five
acts should have been perpetrated at the same
locality. It is possible that each of those five acts
could be done at five different localities. But, the
concatenation of all the above five is a sine qua
non for the completion of the offence under
Section 138 of the NI Act. To emphasis these
points, the Supreme Court referred to Section
178(d) of the Code which states that when it is
uncertain in which of several local areas an
offence was committed or where it consists of
several acts done in different local areas, it may
be inquired into or tried by a court having
jurisdiction over any of such local areas. After
referring to Section 178(d) of the Code, the
Supreme Court observed that the five different
acts, which are the components of Section 138
of the NI Act as stated by it in paragraph 14,
which we have quoted hereinabove, are 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 NI Act. It is
necessary to quote paragraph 16 because it has
great relevance to this case.
“16. Thus it is clear, 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. As the
amplitude stands so widened and so
expansive it is an idle exercise to raise
jurisdictional question regarding the
offence under Section 138 of the Act.”
12 It is pertinent to note that on the facts
of the case before it, the Supreme Court
observed that the locality where the bank which
dishonoured the cheque is situated cannot be
regarded as the sole criteria to determine the
place of offence (emphasis supplied). Implicit in
this observation of the Supreme Court is it’s view
that the place where the cheque is dishonoured
can be a criterion to determine the place of
19 crwp30.11
offence. The Supreme Court further observed
that offence under Section 138 of the NI Act
would not be completed with the dishonour of the
cheque. It attains completion only with the failure
of the drawer of the cheque to pay the cheque
amount within the expiry of 15 days mentioned in
clause (c) of the proviso to Section 138 of the NI
Act. The Supreme Court further went on to say
that it is normally difficult to fix up a particular
locality as the place of failure to pay the amount
covered by the cheque. A place, for that
purpose, would depend upon a variety of factors.
It can either be at the place where the drawer
resides or at the place where the payee resides
or at the place where either of them carries on
business. The Supreme Court held that the
Kerala High Court was, therefore, right in holding
that the trial court had jurisdiction to entertain the
complaint.
13 In Shamshad Begam, a Single
Judge of the Karnataka High Court had
dismissed the petition under Section 482 of the
Code where a prayer was made to quash the
case pending on the file of learned Magistrate at
Mangalore arising out of Section 138 of the NI
Act. The appellant accused had filed the petition
in the Karnataka High Court on the ground that
the Mangalore court had no jurisdiction to try the
case because the agreement was entered into at
Bangalore and the cheques were returned by the
banks at Bangalore. The complainant stated that
before issuing the notice, he had shifted his
residence to Mangalore and, therefore, he had
issued the notice from Mangalore which was
received by the appellant-accused and the reply
was sent by her to the appellant-accused at
Mangalore address. As the notice in writing to
the drawer of the cheque demanding payment of
cheque amount was sent from Mangalore, the
court at Mangalore has jurisdiction to try the
case. The High Court noted that one of the
components of the offence was giving notice in
writing to the drawee of the cheque by
demanding payment of the cheque amount.
The said action had taken place in Mangalore
and, therefore, the petition was without merit.
The Supreme Court referred to K. Bhaskaran
and quoted extensively from it. The Supreme
Court reaffirmed that offence under Section 138
of the NI Act has five components i.e. (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 and (5) failure of
the drawer to make payment within 15 days of
the receipt of the notice. The Supreme Court
reiterated that it is not necessary that the above
five acts should have been perpetrated at the
same locality and it is possible that each of these
five acts could be done at five different localities.
The Supreme Court refused to interfere with the
High Court’s order. In our opinion, the law of
jurisdiction has been succinctly stated in K.
Bhaskaran followed by Shamshad Begam and
we need to say nothing more on this aspect.
14 In Harman, the complainant and the
accused entered into a business transaction.
The accused was a resident of Chandigarh. He
carried on the business in Chandigarh. He
issued the cheque in question at Chandigarh.
The complainant had a Branch Office at
Chandigarh although his Head Office was at
Delhi. He presented the cheque given by
the accused at Chandigarh. The cheque was
dishonoured at Chandigarh. The complainant
issued a notice upon the accused asking him to
pay the amount from New Delhi. The said notice
was served on the accused at Chandigarh. On
failure on the part of the accused to pay the
amount within fifteen days from the date of the
communication of the said letter, the complainant
filed a complaint at Delhi. In the complaint it
was stated that the Delhi Court has
jurisdiction to try the case because the
complainant was carrying on business at Delhi;
the demand notice was issued from Delhi; the
amount of cheque was payable at Delhi and the
accused failed to make the payment of the said
cheque within statutory period of fifteen days
from the date of receipt of notice.
15 Cognizance of the offence was taken
by learned Magistrate. The accused questioned
the jurisdiction of the Magistrate at Delhi before
the Additional Sessions Judge, New Delhi.
Learned Sessions Judge held that the Magistrate
at Delhi had jurisdiction to entertain the
complaint as admittedly the notice was sent by
the complainant to the accused from Delhi
and the complainant was having its registered
office at Delhi and was carrying on business at
Delhi. Learned Judge also observed that the
accused failed to make payment at Delhi as the
demand was made from Delhi and the payment
was to be made to the complainant at Delhi. The
Delhi High Court dismissed the petition filed by
the accused.
16 The accused approached the
Supreme Court. The Supreme Court considered
Section 138 of the NI Act. It referred to K.
Bhaskaran and quoted the five components
of offence under Section 138 of the NI Act which
have been noted in K. Bhaskaran . The Supreme
Court reiterated that if five different acts which
are the components of offence under Section
138 of the NI Act 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 NI Act and the complainant
would be at liberty to file a complaint/petition at
any of those places.
17 The Supreme Court held that the
Chandigarh court had jurisdiction to entertain the
complaint because the parties were carrying on
business at Chandigarh; branch office of the
complainant was in Chandigarh; the
transactions were carried on only from
Chandigarh and the cheque was issued and
presented at Chandigarh. The Supreme Court
observed that the complaint did not show that
the cheque was presented at Delhi, it was
absolutely silent in that regard and, therefore,
there was no option but to presume that the
cheque was presented at Chandigarh.
Undisputedly the dishonour of the cheque also
took place at Chandigarh and, therefore,
according to the Supreme Court, the only
question which arose for consideration was
whether sending of notice from Delhi itself would
give rise to a cause of action in taking
cognizance under the NI Act.
18 Harman is, therefore, only an authority
on the question whether a court will have
jurisdiction because only notice is issued from
the place which falls within its jurisdiction and it
does not deviate from the other principles laid
down by the Supreme Court in K. Bhaskaran.
The Supreme Court accepted that the place
where the cheque was presented and
dishonoured has jurisdiction to try the complaint.
The Supreme Court concluded that issuance of
notice would not by itself give rise to a cause of
action but communication of the notice would.
Only on a service of such notice and failure on
the part of the accused to pay the demanded
amount within a period of 15 days thereafter,
commission of an offence completes. The
Supreme Court in effect affirmed what it had said
in K. Bhaskaran that court within whose
jurisdiction the cheque is presented and in
whose jurisdiction there is failure to make
payment within 15 days of the receipt of the
notice can have jurisdiction to try the offence
under Section 138 of the NI Act. “
19 It is material to note that the Apex Court while holding
that Chandigarh court has jurisdiction, has observed in the case
of Harman Electronics (P) Ltd. that in the case before it, the
complaint was silent as to whether the said cheque was
presented at Delhi. However, in the present case, it is
categorically stated that disputed cheque in question was
presented for realisation at Auangabad through the collecting
banker of complainant i.e. H.D.F.C. Bank, Aurangabad and in
the present case, it is also categorically stated that dishonour of
the disputed cheque in question took place at Aurangabad,
since the complainant’s banker informed the fact of dishonour
of said cheque to the complainant company by its memo
received by the complainant company on 8.12.2009, as stated
in para no.6 of the complaint, and therefore, the offence
constituted and cause of action took place at Aurangabad,
which consequently, confers jurisdiction for filing the complaint
in Aurangabad court.
20 Moreover, it is also important to note that in the case
of Preetha S. Babu (supra), the Division Bench of this court has
considered the Ruling of the learned Single Judge of this court
(R.C.Chavan, J.) in Ahuja Dongre’s case and also considered
the judgment of another learned Single Judge of this court
(V.R.Kingaonkar, J.) in Dipti Kumar Mohanty, where Ahuja
Dongre’s case was followed., and also considered the judgment
of learned Single Judge of this court (S.A.Bobde, J.) in the
case of Nutan Damodar Prabhu, as well as considered the
judgment of learned Single Judge (R.M.S.Khandeparkar, J.) in
the case of Damodar S.Prabhu, and observed that the view
taken in Ahuja Dongare’s case is contrary to the view taken by
Hon’ble Supreme Court in the case of K.Bhaskaran, and agreed
with the view taken by the learned Single Judge in Ahuja
Dongare’s case to the extent that ‘the Bank’ referred to in
Clause (a) to the proviso to Section 138 of the Negotiable
Instruments Act, would mean that the drawee bank on which
the cheque is drawn, but with great respect further observed
that the view taken by the learned Single Judge in that case in
the context of jurisdiction of the court to entertain complaint
under Section 138 of the Negotiable Instruments Act, that the
cheque has to be presented to the drawee bank at the place
mentioned in the cheque and only the court within whose
jurisdiction, the drawee bank is situated will have jurisdiction to
entertain the complaint and not the court at another place
where it is presented for realization, needs to be reconsidered
by a larger bench in an appropriate case.
21 Thereafter, having considered the judgment of
Hon’ble Supreme Court in the case of Ishar Alloys Steels Ltd.
Vs Jayaswals NECO Ltd., 2001 (3) Mh.L.J. (SC) 1, the Division
Bench of this court in the case of Preetha’s case (supra)
observed that therefore, the cheque can be presented at the
collecting bank of the payee. The collecting bank has to then
send it to the drawee bank. That must be done within six
months. If the cheque is dishonoured and money is not paid
within 15 days of the notice, complaint can be filed at the place
where the collecting bank is situated. The idea is that the
cheque should reach the drawee bank within six months. It can
be directly presented to it or it can be presented through the
collecting bank.
22 Applying the afore said parameters to the present
case, it is apparently clear that the accused issued disputed
cheque in question at Pune, drawn on its drawee bank, namely
Indrayani Cooperative Bank, Pimpri, Pune, but the complainant
presented the said cheque for realisation and encashment
through its collecting banker i.e. H.D.F.C. Bank at Auragnabad
and the said cheque was dishonoured by the bank of the
accused and sent the same to the complainant’s banker i.e.
H.D.F.C. Bank, Aurangabad, with the remark “funds insufficient”
along with memo, dated 26.11.2009, and consequently, the
complainant’s banker H.D.F.C. Bank, Aurangabad informed the
said fact of dishonour of the said cheque to the complainant by
its memo on 8.12.2009.
23 Thereafter, the complainant issued the demand
notice to the accused from Aurangabad on 24.12.2009 and
called upon the accused to make the payment of the said
cheque to the complainant at Aurangabad (emphasis supplied)
and the said notice was received by the accused, but the
accused failed to make the payment of the said cheque to the
complainant at Aurangabad, within 15 days as contemplated
therein at Aurangabad, as specifically called upon by the
complainant to the accused to do so (emphasis supplied), and
therefore, the offence was constituted at Aurangabad and it
cannot be construed that whole cause of action took place at
Pune only, since part of cause of action arose at Aurangabad,
and hence, inevitably Aurangabad court shall have the territorial
jurisdiction to entertain and try the complaint lodged by the
complainant.
24 Moreover, the very root cause in the present matter
i.e. the invoice cannot be ignored and it was agreed between
the parties that the transaction is subject to the jurisdiction of
Aurangabad and the said term is mentioned on the invoice and
accepted by the accused, as rightly observed by the learned
Trial Court in the impugned order, dated 23.9.2010.
25 Besides, as observed by the Apex Court in Harman
Electronics (P) Ltd.’s case that it is necessary to strike a
balance between the right of the complainant and the right of an
accused vis-a-vis the provisions of the Code of Criminal
Procedure, it is possible that the accused can take exemption
from appearance in the court; whereas the complainant runs
the risk of his complaint being dismissed in his absence, and
therefore, hardship caused to the complainant is more, and
therefore also, the Aurangabad court where the complainant’s
administrative and registered office is situated, and where part
of cause of action arose, as stated hereinabove, shall have
jurisdiction to entertain and try the complaint.
26 In the light of the afore said discussion, and having
conjoint reading of Sections 177, 178 and 179 of the Code of
Criminal Procedure and Section 138 (a), (b) and (c) of the
Negotiable Instruments Act, and considering the guidelines, in
respect of law of territorial jurisdiction, laid down by the Hon’ble
Supreme Court and the Division Bench of this Court, as afore
stated, it is amply clear that the learned Trial Court has rightly
dismissed the application Exh.13 in Summary Criminal Case
No. 1077 of 2010 in respect of the objection of territorial
jurisdiction raised by the accused and has rightly declined the
submission of the accused that only court at Pune can have
jurisdiction and rightly held that Aurangabad court shall have
jurisdiction to entertain and try the complaint filed by the
complainant and no interference therein is warranted in the
extraordinary jurisdiction of this court, and hence, the present
petition bears no substance and same is devoid of any merits
and therefore, same deserves to be dismissed.
27 In the result, present petition is dismissed. The
impugned order, dated 23.9.2010, passed by the learned 10th
Joint Judicial Magistrate, First Class, Aurangabad, below Exh.
13, in Summary Criminal Case No. 1077 of 2010 is upheld and
confirmed. Rule stands discharged accordingly.
(SHRIHARI P. DAVARE, J.)
Cyber offences are the unlawful acts which are carried in a very sophisticated manner in which either the computer is the tool or target or both.
The offences included in the IT Act 2000 are as follows:
1. Tampering with the computer source documents.
2. Hacking with computer system.
3. Publishing of information which is obscene in electronic form.
4. Power of Controller to give directions
5. Directions of Controller to a subscriber to extend facilities to decrypt information
6. Protected system
7. Penalty for misrepresentation
8. Penalty for breach of confidentiality and privacy
9. Penalty for publishing Digital Signature Certificate false in certain particulars
10. Publication for fraudulent purpose
11. Act to apply for offence or contravention committed outside India
12. Confiscation
13. Penalties or confiscation not to interfere with other punishments.
14. Power to investigate offences.
Obscenity is an attack on moral values & it is a criminal libel. Obscenity is usually limited to sex or what people might regard as foul language.
The major difference between defamation and obscene is that accused of obscenity cannot use such defences as truth, fair comment or privilege.
Sec 67 does not speak about defamation instead it speaks only about obscenity.
If we have provisions regarding defamation under IPC we need not look into some other laws if there is no specific provision. under ipc its punishable to defame any person using any form of medium, so it includes electronic form also.
Cyber Laws under Information Technology Act in India
– Section 43 of IT Act states any act of destroying, altering or stealing computer system/network or deleting information with act of damaging data or information without authorization of owner of that computer is liable for payment to be made to owner as compensation for damages
– Section 43A of IT Act states any corporate body dealing with sensitive information and negligent with implementing reasonable security practices causing loss or wrongful gain to any other person will also be liable as convict for compensation to the affected party
– Section 66 states hacking of computer system by individual with dishonesty or fraudulently with 3 yrs imprisonment with fine of Rs. 5,00,000 or both
– Section 66A states any offensive information with demean character or information known as false but sent for purpose of causing annoyance, inconvenience, danger, enmity, hatred or criminal intimidation to mislead the recipient is liable for imprisonment upto 3 years with (or) without fine
– Section 66 B,C,D for fraudulently or dishonesty using or transmitting information or Identity theft is punishable with 3 yr imprisonment or 1,00,000 fine or both
– Section 66 E for Violation of privacy by transmitting image of private area is punishable with 3 yr imprisonment or 2,00,000 fine or both
– Section 66 F on Cyber Terrorism affecting unity, integrity security, sovereignity of India through digital medium is liable for life imprisonment
– Section 67 states publishing obscene information or pornography or transmitting obscene information in public is liable for imprisonment upto 5 years or penalty of Rs. 10,00,000 or both
The world 1st computer specific law was enacted in the year 1970 by the German State of Hesse in the form of ‘Data Protection Act, 1970’ with the advancement of cyber technology. With the emergence of technology the misuse of technology has also expanded to its optimum level and then there arises a need of strict statutory laws to regulate the criminal activities in the cyber world and to protect technological advancement system. It is under these circumstances Indian parliament passed its “INFORMATION TECHNOLOGY ACT, 2000” on 17th oct to have its exhaustive law to deal with the technology in the field of e-commerce, e-governance, e-banking as well as penalties and punishments in the field of cyber crimes.
1. Cyber Crimes against Persons:
There are certain offences which affects the personality of individuals can be defined as:
2. Crimes Against Persons Property:
As there is rapid growth in the international trade where businesses and consumers are increasingly using computers to create, transmit and to store information in the electronic form instead of traditional paper documents. There are certain offences which affects persons property which are as follows:
3. Cybercrimes Against Government:
There are certain offences done by group of persons intending to threaten the international governments by using internet facilities. It includes:
4. Cybercrimes Against Society at large:
An unlawful act done with the intention of causing harm to the cyberspace will affect large number of persons. These offences includes:
Affects To Whom: Cyber Crimes always affects the companies of any size because almost all the companies gain an online presence and take advantage of the rapid gains in the technology but greater attention to be given to its security risks. In the modern cyber world cyber crimes is the major issue which is affecting individual as well as society at large too.
Need of Cyber Law: information technology has spread throughout the world. The computer is used in each and every sector wherein cyberspace provides equal opportunities to all for economic growth and human development. As the user of cyberspace grows increasingly diverse and the range of online interaction expands, there is expansion in the cyber crimes i.e. breach of online contracts, perpetration of online torts and crimes etc. Due to these consequences there was need to adopt a strict law by the cyber space authority to regulate criminal activities relating to cyber and to provide better administration of justice to the victim of cyber crime. In the modern cyber technology world it is very much necessary to regulate cyber crimes and most importantly cyber law should be made stricter in the case of cyber terrorism and hackers.
Penalty For Damage To Computer System: According to the Section: 43 of ‘Information Technology Act, 2000’ whoever does any act of destroys, deletes, alters and disrupts or causes disruption of any computer with the intention of damaging of the whole data of the computer system without the permission of the owner of the computer, shall be liable to pay fine upto 1crore to the person so affected by way of remedy. According to the Section:43A which is inserted by ‘Information Technology(Amendment) Act, 2008’ where a body corporate is maintaining and protecting the data of the persons as provided by the central government, if there is any negligent act or failure in protecting the data/ information then a body corporate shall be liable to pay compensation to person so affected. And Section 66 deals with ‘hacking with computer system’ and provides for imprisonment up to 3 years or fine, which may extend up to 2 years or both.
François Martin was the first Frenchmen to settle in Pondicherry in 1675. The Dutch took hold of the town in 1693 and occupied it for 9 years during which they made heavy investments. They are notably the ones who planned the town in a grid pattern. They returned it to France during the signing of the Ryswick treaty. Three governors then succeeded to François Martin who died in 1706: Lenoir, Dumas and Dupleix. Lenoir then Dumas undertook many urban planning works. But France had its hour of glory under the governorship of Dupleix. Dupleix, named governor of Pondicherry in 1742 after having been the director of the Chandernagor trading post to which he gave a great boost, nearly manages, in 12 years, to create a French empire in the Indian peninsula.
The wars in Europe, between England and France notably, had repercussions nevertheless in Pondicherry. That is how Mahé de Labourdonnais took hold of Madras during the Austrian succession war. The British subsequently laid for their part, and in vain, the siege of Pondicherry. In September 1750, Bussy takes hold of the Gingy fortress, considered impregnable. Pondicherry is at that time at its peak, as much with regards to its radiance than to its wealth. But Dupleix fails to take over Trichy from the British in 1753. In 1754, he is called back to France and replaced by Godeheu. It is the end of an empire dream.
The Seven years war starts in 1756. The British take hold of Chandernagor and raze the city to the ground. France names a new governor: Lally Tollendal, a catholic Irishman emigrated to France, who hated the British. He takes over and razes Cuddalore, then heads towards Madras, but a British squadron is heading at the same time towards Pondicherry and besieges the city during one year. The white town will be razed to the ground in 1761. Lally Tollendal will be judged, condemned and executed for high treason in 1766. Five years later, he will be rehabilitated thanks to Voltaire. In 1763, Pondicherry will be returned to France during the signing of the Paris Treaty. The white town will be rebuilt in two years.
Pondicherry in turmoil
Till the end of the Napoleonic wars, Pondicherry will become at times French, at times British, many times besieged and taken over by the British. Bussy dies in 1785. In 1790, news of the Revolution comes, which provokes a big turmoil in the population. On March 1st, an assembly is constituted. The natives, who had been referred to as “maures” or “gentils” according to religious criteria, become known as “malabars”. The population writes books of grievances. A new era starts for Pondicherry. But in 1793, the British take over the city once again, which they will keep till the fall of Napoleon. Pondicherry will have therefore been besieged 6 times in less than a century.
Pondicherry, French at last
During the Treaty of Paris, signed in 1815, the British return to France, once and for all, its five trading posts: Chandernagor, Yanaon, Pondicherry and Karaikal on the east cost and Mahé on the west coast.
From 1815 to 1940, the highlights are: the establishment of the “Collège Royal” in 1826, of the first school in the French Empire by the viscount Desbassyns de Richemont, of the “Ecole de Droit” (in 1838) and of the first “Alliance française” (1893); the emigration through the Pondicherry port of the “recruited” coming from all of south India, heading towards the sugar islands (Reunion island, West Indies) to replace the slaves from 1848 onwards (abolition of slavery); emigration of pondicherian executives to provide for the colonial administration of Indochina after the taking of Saigon in 1860; the promulgation of the decree on the renunciation of the personal status (September 1881) which allowed pondicherians to become French citizens by adopting the Civil Code.
The pondicherians will take part in the First World War, where a certain number of them will lay their lives (a monument is dedicated to their memory). In June 1940, Pondicherry (and not Brazzaville!) is the first territory to rally to the General De Gaulle: many will join the FFL. All pondicherians become French at the Liberation.
The independence of India proclaimed in August 1947, will be followed by the unification of Chandernagor to India (1948) while the four other trading posts, making up the “Pondicherry territory” will be integrated to India on November 1, 1954. A treaty of “cession” will be signed by France and India in May 1956 and the “de jure” transfer will be held on August 16, 1962. The last, and one of the oldest colonies of France will therefore have been decolonised after three centuries of French presence, which will not have contributed to the economic and cultural development of the trading posts.
Of this colonial time, there remains a French Lycée, mostly attended by the children of a few thousand French people, for the majority of them retired from the army; a Research Institute, the French Institute of Pondicherry, which devotes itself to researches in Indology, Ecology and Social Sciences, and finally an Alliance Française.
French is however very little spoken, Tamil and English being the dominant languages. After Dupleix, France only confined itself to administrating, with no small difficulty, the trading posts that the British had returned to them, and which it would have liked to get rid of, at the beginning at least, in exchange for the Mauritius island or for Gambia.
Brief Geography
Pondicherry is the only town in India situated just in front of the sea. The old town, of an oval shape, is planned in a grid pattern, and is surrounded by boulevards. A large canal separates the “white town” from the “black town”, that is the Tamil town. All the French Institutions (French consulate, IFP, French Lycée, Alliance Française), as well as the General Hospital, most of the Indian administration, the town hall, the Legislative Assembly and the Tribunal, are situated in the white town. The Sri Aurobindo Ashram occupies all the northwest area. A big park recently redeveloped, is situated in the centre.
The white town is dimly lit and not very lively in the evening, except on weekends when the local population and tourists come to stroll by the sea. The overcrowded Tamil town is where all the shops are. Two big East-West axes, the big commercial Nehru street (ex-Dupleix) and the Lal Bahadur Shastri street, separate the Hindu quarter with its numerous temples, in the North-East, from the Catholic quarter with the cathedral, the archdiocese and the religious schools, in the centre, and the Muslim quarter with its great mosque in the south-East. All the North-South streets, the Sinna Souprayapoulle, Barathi, Mahatma Gandhi and Mission streets, are entirely occupied by shops. The streets in the white town still bear French names (Suffren, Romain Rolland, Dumas, Surcouf, etc…) whereas those in the Tamil town bear Indian names. The Pondicherry built-up area has considerably developed these past few years: with around 1 million inhabitants, it is one of the most highly densely populated city in India.
History of Tamil Culture & Pondicherry
Two realities of “renunciation” in India
Sâdhus an Sâdhvis
The idea of « renunciation » can cover two separate realities in Indian culture. The first one is referring to a minority of people, known as « Sadhûs » (or « Sâdhvis » for women), choosing to renounce to the world by moving away from society, and, by the practice of meditation, who dedicate themselves to reach high levels of spirituality. Renunciation is thus regarded as a ritual that should enable a (wo)man to free (her)him-self from the rebirth cycle.
The “Renonçants”
But there is another -more political- meaning, linked to Indian history. It is generally less known than the spiritual meaning of « renunciation » described above. All those who renounced their Indian Nationality during French colonization in South India, ‘renonçants’ as they are known in French (there is no English word for these people, so we will use the French word), are also part of a form of « renunciation ». They do not renounce to society as a whole, but they renounced to their personal status (Hindu or Muslim) in order to get the French nationality.
The French settlement of Pondicherry
Pondicherry was a French settlement from the end of the 17th century to mid-20th. During the 19th century, the city was provided with the first school of the French Empire (the « Collège Royal », in 1826) and the first Law school, in 1838. It was also given representatives (deputy and senator) and local councils (as in France). But for all those elections, there were two lists : one was the French and Creole (a large minority), the other was the one of All Indians (the biggest majority). The new graduates started to claim the right to become assimilated to French and Creole (all the more so a part of Creole population was actually illiterate). This is how the French government of then worked up to the promulgation of the decree about « renunciation », on September 18th, 1881./p>
This one-off decree in French history gave the opportunity to the -over 21 years old- natives of French Settlements (Pondicherry, Karikal, Chandernagor, Mahé and Yanaon), whatever their sex, religion or cast, to “renounce to their personal status” and to place themselves under the authority of the French Civil Code. They would abandon their status of French “subject” to become a French “citizen”, and the act would “definitely and irrevocably” commit themselves with their whole line of descent (family and children). The “renonçants”, as they are called, were also asked to take a French name, which would be passed on over generations.
The act of renunciation opened the door for new rights to Indians, as for instance the opportunity to work in public service, which was once an exclusive area of French administration. It was also supposed to give them all civil and political rights that French people had.
This subtle attempt of assimilating populations finally met very limited success.
First, only a small minority of Indians decided to “renounce” to their status. The “Renonçants” and their families accounted for max. 3500 persons in Pondicherry, and there was almost none in the four other Establishments. About 3700 out of a population of 283 000 inhabitants, they finally accounted for not more than 1,3% of the population.
Then, regarding the « composition » of these « Renonçants », we can note that they were mainlyCatholic Indians -closer to the Civil Code- and low-cast people, called « pariah » or « outcast », who did not have to renounce to any status as they did not have one. But most of Hindu or Muslim Indiansdid actually not renounce, trying to preserve their cultural traditions -in particular regarding weddings- and to avoid any friction with the other part of the population, subjected to English authority :
For all Indians, renouncing to their personal status would inevitably lead to the breaking of any social or familial relations with « English subject » Indians; they could not, as it was practiced then, go find spouses or marry their daughters with their neighbors anymore; and commercial exchanges would also suffer »1.
As a result of this, the decree does not really meet French expectations. He is regarded by a lot as “favoring the political influence of the pariah, whom renounce with ease to a personal status they don’t care about, contrary to Hindu families remaining attached to their old traditions and to their personal status which is the guarantee of these traditions”2. Scared to find themselves “drowned” in an Indian mass, in particular the poorest and the less instructed, the French governors decided to protect themselves and to exclude the “renonçants” from politics : therefore, although they did get the French nationality, they were classified on a separate list, different and less important than the “French and Creole” one, during the elections. This classification aroused anger and protestations among the population, and was actually at the start of an important movement of migration towards Indochina, where French status would be regarded with greater consideration. This movement becoming more and more extensive, the French government will try to stop it in 1910.
The case of the “Renonçants” have finally been treated with very little consideration in India. And when, after the Second World War, De Gaulle decided to give French nationality to all Pondicherrians (because Pondicherry was one of the first colonies to rally to the “France Libre” -the movement for the liberation of France during the war-), they were almost forgotten. In 1954, seven years after the proclamation of independence of India, France finally left its Establishments. In 1962, a “right of option” is given to the population of the former settlements : they have six months to opt for French nationality if they want to. Those who used the “right of option” became definitively French, others remained Indians. More than 5000 Tamil families have opted on that time. Today, we count around 7000 “Tamil” French in the Union Territory of Pondicherry, hence the undeniable “French touch” of this area!…
However, the situation for the “Renonçants”, those people who switched for French nationality many years ago, is actually turning to drama, as in 1962 no one -not even politics- is remembering anything about these people. Regarding themselves as French, an important part of them is not using the “right of option” offered by De Gaulle. And as a result, without their knowing, just like that, they will loose their French nationality and become Indian… Aberration of French political history, the concept of renunciation disappeared in 1962.
A movement of protestation emerged in the 1960’s but it does not come off.
The situation is now quite controversial : on the one hand, the « Renonçants » having opted in 1962 have, like others, become French while preserving their personal status (Hindu or Muslim for instance); on the other hand, the « Renonçants » who forgot to opt became Indian but they are still subjected -themselves and their children- to the French Civil Code, as they “definitely and irrevocably” committed themselves by signing the act of renunciation…
It’s now more than two years since the Reserve Bank has asked all banks to pay consumers who are victims of failed ATM transactions, compensation at the rate of Rs. 100 per day, if the amount wrongly deducted from their accounts is not reimbursed within the stipulated time frame.
While earlier, banks had 12 days to resolve the issue, from July 1 this year, they have seven days. In other words, banks have to reverse the wrong debit within seven days or else pay compensation at the rate of Rs.100 per day for every day’s delay and pay this amount voluntarily, without waiting for the consumer to ask for it.
Yet, banks continue to violate this diktat of the regulator. Take as an example, this case quoted in the latest annual report on the Banking Ombudsman Scheme: A consumer tries to withdraw R500 from his account through an ATM, but the machine dispenses only R400. His bank, however, debits Rs. 500 from his account and then takes as long as five weeks to reverse the wrong debit!
The bank, here, blatantly violates the regulator’s mandate on two counts: First and foremost, it does not correct the debit error within the time frame given by the regulator. Second, it fails to pay the stipulated penalty to the consumer.
Eventually, the consumer is forced to go to the Ombudsman to get what is due to him as penalty: Rs.16,200. An RBI official says that in many such cases, banks have had to pay as much as Rs. 50,000 or even more as compensation to the consumer.
All this brings us to the imperative need for detailed information on the issue.
The regulator ought to respect the consumers’ Right to Information and give answers to the following questions (it can be put up on the RBI website):
(a) the total number of complaints received by banks on failed ATM transactions and wrong debits;
(b) the time taken by them to reverse the wrong debit.
Consumers also need to know about
(c) the number of cases where the rectification was not done within the stipulated time and the quantum of compensation paid;
(d) the number of cases where this was paid voluntarily and on the intervention of the ombudsman;
(e) the penalty imposed by the regulator on those banks which failed to follow its directive and
(f) the action taken by the RBI against banks that failed to send quarterly reports on the subject.
In addition, consumers should be told about the steps being taken to eliminate the problem of failed transactions and ensure flawless disbursal of money by the machines.
The information would not only help consumers asses the quality of service provided by individual banks but also the way the regulator enforces compliance of this particular directive. It will also force banks to perform better.
Q 1. How ownership of immovable property is acquired by a person?
Ans. A person may acquire immovable property in any of the following way
(i) By inheritance of ancestral property.
(ii) Through will.
(iii) Acquisition by oneself such as purchase etc.
(iv) Through gift, trust, settlement deeds.
(v) Grant, sanad / Inam by the Government
Through decree of Court.
There are two ways of acquisition:
1.By act of parties.
Example: Purchase, gift etc.
2. By operation of law
Example: Inheritance, decree of Court etc. (for details please see Transfer of Property Act, 1882 (Central Act))
Q 2. Is it necessary to register in Office of the Sub Registrar to get khata transferred in respect of property acquired by inheritance?
Ans. Not necessary. After the death of owner of a property his heirs, such as wife, children i.e. male and female, married or unmarried may get the Khata transferred on production of death certificate of the owner with details of property held by him to the following officers.
If property is an agricultural land – Tahasildar (See Sec.128 of Karnataka Land Revenue Act, 1964) Offices of Corporation, Municipality, Panchayat or City survey if such office exists.
Q 3 . Which are the documents requires to be compulsorily registered?
Ans . 1. Gift deed of immovable property.
2. Other non-testamentary instruments, which purport or Operate to create, declare, assign, limit or extinguish whether in the present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property;
3. Non testamentary instruments which acknowledge the receipt or payment of any consideration on account of the creation, declaration, assignment, limitation or extension of any such right, title or interest;
4. Leases of immovable property from year or for any term exceeding one year, or reserving a yearly rent;
5. Non testamentary instruments transferring or assigning any decree or order of a court or any award when such decree or order or award purports or operates to create, declare, assign, limit or extinguish whether in the present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property;
6. The documents containing contracts to transfer for consideration, any immovable property for the purpose of section 53A of the Transfer of Property Act, 1882 shall be registered if they have been executed on or after the commencement of the Registration and Other Related Laws (Amendment) Act, 2000 and if such documents are not registered on or after such commencement, then, they shall have no effect for the purposes of the said section 53A
Q 4 . How to effect partition of .property?
Ans. a. If all the parties have share (common right) in the property partition can be effected. If partition is effected through an instrument such instrument must be compulsorily registered.
b. Oral partition affected through memorandum submitted to the concerned authorities need not be registered.
c. Stamp duty has to be paid in respect any kind of partition whether it is to be compulsorily registered or not.
d. Parties to the partition may agree to effect partition of unequal shares.
Q 5. When there are two or more heirs, can one or two be made full owners by others taking money in lieu of their share?
Ans . a) Yes. Any of the co-owners can individually or collectively release his / their right in favour of one or more collectively as the case may be and make him / them full owner. This kind of release can be with or without payment of money. This document is called Release.
b) Release can be made not only in case of inherited property but also in case of joint purchase/acquisition.
Q 6. What is a will?
Ans. A testamentary document by which a person bequeaths his property to be effective on his death is a will. The property will devolve on the person in whose favour it is bequeathed after death of testator.
Q 7 . Who can execute a will?
Ans . a) Any person above the age of 18 years and mentally sound may execute will, but will caused by fraud or coercion or by importunately will not be valid. Therefore a will must be executed voluntarily.
b) Parents or guardians cannot execute will on behalf of minors or lunatics.
c) Attestation by minimum two witnesses is necessary.
d) Scribe (deed writer / advocate) cannot be called witness. Two independent attesting witnesses other than the scribe or necessary.
e) Beneficiary under a will should not sign as attesting witness.
In order to avoid disputes in implementation of a will, description of property and the beneficiaries should be clearly be written without giving room for any doubt.
Q 8. Is it compulsory to register a will?
Ans . It is not compulsory to register. Executants may register at his option. It is better to register the will. If original is lost a certified copy can be obtained from Sub-Registrar Office.
Q 9 . Where can the will be registered?
Ans. It can be registered in any office of the Sub Registrar in India
Q 10 Is there any time limit to register a will?
Ans . There is no such time limit
Q 11. Can a will be cancelled?
Ans. The testator can cancel his will at anytime during his lifetime. Such cancellation deed requires a Stamp duty of Rs.100-00
Q 12 Can a registered will be rectified or changed?
Ans If executant of a will wishes to rectify, add to will may do so during his lifetime. This is called codicil. This document does not require stamp duty.
Q 13. Can a will be registered even after death of testator?
Ans. Yes, claiming party under the will have to produce will, records relating to the death of the testator, witness and the scribe before the Sub Registrar. If Sub Registrar is satisfied about the truth and genuineness of the execution of the will, he will register.
Q 14. What is the Stamp duty and Registration fee to register a will?
Ans . There is no Stamp duty on will deed. For registration of will during the life time of the testator Rs.200-00 Registration fee prescribed. To register the will after the death of the testator Registration fee of Rs.200-00 and enquiry fee of Rs.250-00 is prescribed.
Q 15 . Is the certified copy of a registered will available to any body?
Ans . A certified copy of a registered will is available to the testator only during his lifetime. After his death anybody can obtain after producing proof of death of testator.
Q 16 . How to keep contents of a will confidential?
Ans. Will can be deposited in a sealed cover in office of the District Registrar. A fee of Rs.1000-00 prescribed to deposit will in a sealed cover. Depositor or authorized person (executor) can withdraw the sealed cover containing a will, if desires to do so. A Registration of Rs.200-00 prescribed.
Q 17. What is the procedure to obtain the sealed cover containing a will after the death of the depositor?
Ans . On making an application along with proof of the death of the depositor, District Registrar will open sealed cover in the presence of the applicant and it will be registered. Certified copy will be issued if desired. A fee of Rs.100-00 prescribed to open a sealed cover.
Q 18 . What is the procedure for change of khata of the properties obtained through will?
Ans. After the death of the testator person claiming through the will have to apply to the concerned authorities as explained in question no.2 along with the copy of the will and death proof.
Q 19. What are the duties and liabilities of buyers and sellers while purchasing a property?
Ans. Following is the duties and liabilities of buyers and sellers
Before sale
liabilities of seller Liabilities of purchaser
To inform defects in the property
To provide records of right
To execute sale deed Payment of consideration
To pay of the liabilities on the property
Rights
Rights of seller Rights of buyer
To get rent and profits Right of encumbrance on consideration already paid
After completion of sale
Liabilities of seller Liabilities of purchaser
To hand over possession Liability on accidental or loss to the property
Information about right
To hand over records of rights after receipt of consideration Duty to pay taxes and liabilities after taking possession of property
Rights of seller Rights of buyer
If consideration is due encumbrance on property of such dues Incremental value/profit on property
Though there are rights and duties the purchaser should carefully examine the following matters;
1) Original documents.
2) How did the seller acquire the property.
3) Encumbrance Certificate of the property for a minimum period of 15 years from Sub Registry Office to know if there are any encumbrances on the property to be purchased.
4) Verify from the concerned court if there are any litigations on the property to be purchased.
5) Verify if there are any litigations, objections in revenue, municipal offices about inheritance or any other matter.
6) If seller is a power of attorney holder, it should be verified from the principal and if such power of attorney is genuine and whether it is still in force.
7) It should be verified whether the transaction is opposed to public policy under Section 22A of the Registration Act, 1908. If so the document will not be registered.
8) If the Property is a granted land to the member of scheduled caste and scheduled tribe, it should be verified if the transaction is in contravention of the terms and conditions of grant and whether permission of the Government is obtained for transfer.
Q 20 . What are the transactions opposed to public policy?
Ans Government has declared the following as opposed to public policy under Section 22A of Registration Act, 1908 namely,-
(1) (a) Agreement to sell, sale, gift, exchange, mortgage, lease or assignment of land of which the occupancy right has been granted under Chapter III of the Karnataka Land Reforms Act, 1961 in contravention of the restrictions imposed under section 61 of the said act and the rules framed there under.
(b) Agreement to sell, sale, gift, exchange or otherwise of any land in excess of the ceiling limit specified in section 63 or 64 of the Karnataka Land Reforms Act, 1961 in contravention of section 74 of the said act and the rules framed there under.
(c) Agreement to sell, sale, lease, mortgage with possession or otherwise of any agricultural lands to a person or a family or a joint family who or which has an assured annual income of rupees Two lakhs and above from sources other than agriculture in contravention of section 79-A of the Karnataka Land Reforms Act, 1961 and the rules framed there under.
(d) Agreement to sell, sale, lease, mortgage with possession or otherwise of any agricultural land to an educational, religious, charitable institution society, trust, company, association, other body of individuals or a co-operative Society other than the co-operative farming society in contravention of section 79-B of the Karnataka Land Reforms Act, 1961 subject to the exceptions and exemptions provided under section 109 of the said act and the rules framed there under.
(e) Agreement to sell, sale, gift, lease, mortgage with possession or otherwise of any agricultural land granted under the Karnataka Land Grant Rules, 1969 subject to restrictions on sale, transfer, and specific use imposed there under as per the provisions of the said Rules.
(2) One cannot possess land as owner, tenant or as mortgagee with possession in excess of 10 units. If a family consists of more than five members, such family may hold two units per head not exceeding 20 units.
PART A
[See Section 2(A)(35-A)
Classification of Lands
A Class
Lands having facilities for assured irrigation from such Government Canals and Government Tanks as are capable of supplying water for growing two crops of paddy or one crop of sugarcane in a year.
B Class
(i) Lands having facilities for assured irrigation from such Government Canals and Government Tanks as are capable of supplying water for growing only one crop of paddy in a year.
(ii) Lands irrigated by such lift irrigation projects constructed and maintained by the State Government as are capable of supplying water for growing two crops of paddy or one crop of sugarcane in a year.
C Class
(i) Lands irrigated from any Government sources of irrigation, including lift irrigation projects constructed and maintained by Government other than those coming under A Class and B Class.
(ii) Lands on which paddy crop can be raised or areca crop is grown with the help of rain water.
(iii) Lands irrigated by lifting water from a river or Government Canal or Government tank where the pumping installation or other device for lifting water is provided and maintained by the land owner.
Notes
(1) Lands having facilities for irrigation from a Government Source where the system of water supply is suitable for growing only light irrigated crop namely, crops other than paddy and sugarcane shall come under this class.
(2) Lands growing irrigated garden crop will come under classes ‘A’, ‘B’ or ‘C’ as the case may be depending upon the source of irrigation and the system of water supply.
D Class
Lands classified as dry but not having any irrigation facilities from a Government source.
Note.- Lands growing paddy or garden crops not coming under A Class, B Class or C Class shall belong to this class.
PART B
Formula of determining equivalent extent of different classes
One Acre of A Class land having soil classification value above 8 annas = 1.3 acres of A Class land having soil classification value below 8 annas = 1.5 acres of B Class land having soil classification value above 8 annas = 2.0 acres of B Class land having soil classification value below 8 annas = 2.5 acres of C class land having soil classification value above 8 annas = 3.0 acres of C class land having soil classification value below 8 annas = 5.4 acres of D Class land.
(2) Q 21. Is it necessary to obtain permission for transfer of agricultural land granted under Land Grant Rules or granted occupancy right under Land Reforms Act even after lapse of condition for transfer?
Ans. Yes. Application should be submitted to Tahasildar and acknowledgement is obtained. If permission is not granted within 15 days after getting acknowledgement, document can be registered as if permission is granted.
Q 22 . What are other restrictions to purchase agricultural land?
Ans . Lands granted to persons belonging to scheduled caste or scheduled tribe cannot be transferred or purchased without prior permission of the Government. This restriction does not apply to mortgagee in favour of co-operative or scheduled banks and partition among family members
2. Social or Industrial organizations can purchase with the permission of the Government (Refer Sec.109 of Karnataka Land Revenue Act, 1964).
Q 23. How to get transfer of immovable property?
Ans . a. As explained under Question 3, if value of property under sale, exchange, lease, and mortgage is Rs.100 or more, deed relating to such transaction must be compulsorily registered (Sec.17 of Registration Act 1908).
b. Gift deed, must be registered irrespective of the value of the property.
c. After the deed is registered `J’ slip is sent to Tahasildar in case of agricultural land and city survey office, in case of city non-agricultural property of properties are under city survey. The purchaser should get confirmed whether khatha is transferred through `J’ slip.
In areas where there is not city survey is not in operation, one has to apply along with copy of the deed to the concerned Corporation/ Municipal/panchyat office to effect transfer of khatha.
Q 24 . What is the purpose of Registration?
Ans. (a) By Registration of transaction of immovable property will become permanent public record. This is a notice to the general public. Those getting transfer of property should verify whether such property has been previously encumbered.
(b) According to Transfer of Property Act right, title or interest can be acquired only if the deed is registered.
Q 25 . What are the effects of non-registration?
Ans . If a deed of transfer, which is compulsorily registrable, is not registered it will not be admissible in evidence (Sec.49 of Registration Act 1908)
Q 26. Is there time limit to present a document for registration after it is executed (signed)?
Ans . a. Document may be presented for registration within four months from the date of execution (signature).
b. If a document is executed out of India, the period of four months will be counted from the date of its receipt in India.
c. After four months document may be presented within another four months with penalty subject to maximum of ten times the registration fees if the District Registrar grants permission. But document may be presented before Sub Registrar within eight months. Thereafter it cannot be accepted for registration. (For details please see Rule 52 of Karnataka Registration Rules, 1965).
Q 27. What is the day today timing for acceptance of deeds for registration in Sub Registry offices?
Ans. Generally deeds are accepted during working hours. Sub Registrar may stop accepting two hours before closing time if he has sufficient work to attend in respect of deeds already received for registration.
Provided deeds may be accepted in emergency cases on payment of extra fee of Rs.200 one hour before sunrise and one hour after sunset and on holidays.
Q28. Can the document presented for registration be withdrawn?
Ans . Registering officer may permit withdrawal of the document before completion of registration on written request by the party who presented the document. Fifty percent of the registration fee is refundable. Likewise Stamp duty is also refundable subject to deductions. (Please see question No.19 on stamp duty F.A.Q.)
Q 29 . Who should be present at the time of registration?
Ans . A deed may be presented for registration either by claiming or executing party but the executant / executants must be present to admit execution (signing) of the deed (Please see Sec.32 of Registration Act 1908).
Q 30. What is the course, if executing party refuses to appear in Registry Office to admit execution?
Ans . a. In such circumstances, registering office will issue notice/ summons to the Executant. If the party does not turn up registering officer will refuse registration.
b. Application may be made to the District Registrar on such refusal to the District Registrar who will hold enquiry and decide the case. Rs.250 should be paid for such application.
c. One may submit appeal to the Civil Court if District Registrar also refuses to order for registration (For details please see Sec.73, 74, 75, 76 & 77 of Registration Act 1908).
Q 31. Who can sign as witness to a document?
Ans . Any person, above 18 years of age and not a party to the document may sign as witness.
Q 32. What is meant by Identifying witness of person presenting/executing a document?
Ans . In order to identify genuineness of the persons executing the document, signature of identifying witness are obtained. Without such witness, registering officer may refuse registration.
Q 33 . Who is authorise to write a deed?
Ans . Deed may be personally written by the executant or may be drafted by a licensed deed writer or advocate.
Q 34 . Is it necessary to register immovable property by Government as inam or granted on darkhast?
Ans . They are exempted from registration. Khatha is effected on the basis of orders of Government (see Sec.90 of Registration Act 1908).
Q 35. Are there any kind of documents registered without personal appearances of the parties for registration?
Ans . 1. Mortgage deed executed under Improvement Loans etc.
2. Certificate of sale issued by revenue court.
3. Documents executed by farmers in favour of primary co-operative land development bank to obtain loan and loan bonds executed by farmers in favour of banks under Karnataka Agricultural Credit Co-operations and Miscellaneous Provisions Act 1975 are sent under Sec.89 of the Registration Act and they are filed.
Q 36I.s it necessary to register deed relating to transfer or assignment of decree relating to immovable property?
Ans . If value of the property involved in decree is Rs.100 or more and creates, declares, transfer, limit or extinguish right it should be compulsorily registered (See Sec.17 (e) of Registration Act).
Q 37. Explain the registration of adoption deed?
Ans. Adoption deed maybe executed and registered like any other deed. Stamp duty Rs.45 and registration fee Rs.200 are leviable on it.
Q 38. Explain the Power of Attorney?
Ans . There are two kinds of Power of Attorney.
1. General Power of Attorney (GPA)
2. Special Power of Attorney (SPA)
a) General Power of Attorney is executed by a person in favour of another to act on behalf of him generally. It may include management of property, Court matter/litigations, sale of mortgage of property or any other act.
b) Special Power of Attorney is executed to do a particular act. Power of Attorney holder is answerable to the principal and liable to give accounts to him.
Q 39. Does property get transferred by getting a General Power of Attorney from the person selling it? Can the agent become owner of property?
Ans . No. It is wrong to say that ownership is transferred by getting General Power of Attorney. Persons purchasing property must get the sale deed registered. This principle applies to other kinds of transactions also.
Q 40. Who can execute Power of Attorney?
Ans . A person who has attained majority may execute power of attorney in favour of another person who has attained majority including family members like brother, sister, father and mother to act on his behalf. If a power of attorney is executed to sell property in favour of relatives other than those mentioned above, 2 percent stamp duty shall be paid on market value of such property. If a power of attorney is executed in favour of developers, Builders of apartment, 4 percent stamp duty shall be paid on market value of such property. (see article 5(f) & 41(a), 41(ea), Schedule to Karnataka Stamp Act 1957).
Q 41. When would a General Power of Attorney gets cancelled?
Ans. a. GPA automatically gets cancelled on the death of Executant.
b. Principal (Executant) may cancel it any time.
Q 42 .What does Irrevocable Power of Attorney mean?
Ans. If the Power of attorney is executed for consideration in respect of property it cannot be unilaterally revoked, prejudicial to the interest of the agent (See Sec.202 of Indian Contract Act, 1872).
Q 43. What is the meaning of a Special Power of Attorney?
Ans . (a) Power of Attorney executed by a person in favour of another to act on his behalf for specific purpose is called Special Power of Attorney.
(b) If a person is unable to go over to registry office to present a document executed in his favour or to admit execution of document executed (signed) by him, such power of attorney shall be authenticated or attested by a Sub Registrar. Otherwise they are not acceptable for the purpose of registration.
Q 44 . Is it compulsory to register power of attorney attested in India by Magistrate or notary?
Ans . They need not be registered. But General Power of Attorney containing authority to present or admit execution of a document executed by the principle is not acceptable for such presentation or admission of execution unless they are attested or authenticated by a Sub Registrar.
Q 45 . Is it compulsory to register General Power of Attorney executed by persons residing out of India and attested by officers of Consulate office of India in that country?
Ans. It is not necessary to register. But Stamp duty as per Article 41 shall be paid within 3 months from the date of receipt of the power of attorney in India.
Q 46. Is it compulsory to get a Power of Attorney attested by a Sub Registrar if it has already been attested by Magistrate or Notary, under which documents are signed by the agent?
Ans . Not necessary
Q 47. What is meant by Encumbrance Certificate?
Ans . Encumbrance Certificate is a record showing registered transactions pertaining to a property. If mortgage, sale or any other deeds in respect of a property are registered, encumbrance certificate is issued Form No.15.
Click here to download Prescribed application form no.22 to obtain Encumbrance Certificate.
Q 48. What is meant by a Nil Encumbrance Certificate?
Ans . If no deeds of transactions are registered in respect of a property nil encumbrance certificate is issued in Form No.16. If Certificate is issued in this form, it means that there are no registered transactions / liabilities on the property for a given period of time unregistered transactions are not included in this certificate.
Click here to download Prescribed application form no.22 to obtain Encumbrance Certificate.
Q 49 . What is the fee for Encumbrance Certificate?
Ans . a. Application fee Rs.5
b. Rs.30 for search of first year and Rs.10 for every subsequent year. Example: To obtain Encumbrance Certificate for 13 years. Application fee Rs.5-00 plus first year Rs.30-00 plus 12 years Rs.120-00 and total Rs.155-00.
Q 50 . How to obtain Certified Copy of registered document?
Ans . 1. Any person may obtain certified copy of registered document relating to immovable property.
2. Certified copy of registered will may be obtained only by the testator only during his lifetime. Any person may get copy of a will after the death of the testator on production of death certificate.
3. Copies of registered deed of GPA and other documents relating to movables may be obtained by executant / claimant or agent, representative of such person only.
Stamp paper of Rs.10 is required to be produced along with the application and copying fee of Rs.3 for every page of Xerox copy or Rs.5 for every 100 words or part thereof is to be paid.
Points to be noted by registering public for registration of a document
No. Do’s Don’ts
1 Meet registering officer directly for your work Do not depend on middlemen for your work
2 Pay the fees required to be paid directly to the registering officer and obtain receipts Do not pay money to the middlemen.
3 Market value of each area is published. Pay stamp duty as per market value Purchase stamp papers from licensed stamp vendors only. Beware of fake stamp papers
4 Verify whether date of delivery of the registered deed is written on the receipt. Keep the receipt securely with you only Don’t handover receipt to middlemen.
5 Get information records to be produced for registration in the registry office Don’t go for registration without necessary records.
6 Fee for drafting/writing documents are prescribed. Pay accordingly and obtain receipts for it Don’t pay without receipt. Do not pay fee for drafting and registration together if demanded. Pay Registration fee directly in the office.
7 Contact higher authorities for any doubts and complaints. Do not conceal your feelings about the officer or staff. Inform the higher authorities.
8 Obtain registered deeds personally or through registered post. Do not depend on middlemen for return of document after registration.
9 Note true market value of property Under valuation is an offence.
Q 51 . Where can I register my immovable property ?
Ans . Documents pertaining to immovable property shall be registered in the Sub-Registrar office in whose jurisdiction the property is situated
Or If you have any problem with the Sub-Registrar’s office please approach the District Registrar of your district.In Bangalore Urban district still if you have problem in registration you can visit the Office of the Inspector General of Registration where your registration work pertaining to Bangalore Urban district will be attended.
by M. Magesh
ADVOCATE MAGESH 