Advocate Anurag Upadhyaya

Questions Answered by Advocate Anurag Upadhyaya

Q: Bail surety eligibility u/s 138 of negotiable instruments act

Can a person with no property just having IT return give bail surety u/s 138.

Advocate Anurag Upadhyaya answered
Surety is subject to the satisfaction of the court which grants bail. Any person having a title over an immovable property or vehicle can give surety. Depending upon the Judge the documents required will be Ration Card, Aadhaar Card, Voter Id or Passport / RC of vehicle, property document , IT return etc.The person whom stand as surety should be mentally sound and not adjudged as insolvent and discharge of surety by surety themselves permitted under section 444 of crpc.

Q: company is dissolved after filing case 138 of cheque bouncing

X person issued cheque to Y company. X does stop payment as cheque was issued UNDER PROTEST. Y company files case U/s 138. After few months the Y company is striked off from Ministry of corporate affairs and does not exist. However still somebody claming to be Authorised representative is appearing.Is the case maintainable as the company is dissolved?How is the AR appearing on whose behalf ??If the plaintiff wins the case, who is to be paid by MrX as Y company does not exist.Please advise with case reference/citations

Advocate Anurag Upadhyaya answered
Criminal liability under Negotiable Instrument Act u/s 138 will be on the directors or person who were in charge of and responsible for the conduct of business at the time of commission of offence. As per Supreme Court order, only those who were in charge of and responsible for the conduct of the business of the company at the time of commission of an offence will be liable for criminal action. If a Director was not in charge of and was not responsible for the conduct of business at the relevant time, he/she will not be liable for criminal offence. Hence, liability arises from one being in charge of and responsible for the conduct of the business at the relevant time when the offence was committed, and not on the basis of one merely holding a designation or office in a company

Q: Different spelling of my father's manr in my documents

My father's name is "GIAN CHAND GOYAL" and he wrote his name in above spelling in all his documents.Due to my ignorance my all documents including (10;12; graduation; postgraduation) have his name in "GYAN CHAND GOEL" .MY Aadhar card n pancard have "GIAN CHAND GOYAL" this spelling.Now I have to go through documents verification ;EWS certificate.Have to apply for passport too.Please do suggest me what should I do and from where I can make changes.your suggestions means alot to me.Thanks

Advocate Anurag Upadhyaya answered
You should firstly change your father's name (surname) in Aadhar card , Pan card, 10th Marksheet and further publish the change name in two news paper for publishing in official gazette. In case of PAN Card send an application to the INcome Tax Department and for passport write to RTO and submit the application form to rectify the error in the name. You have to annex the documents of identity of your father wherein his correct name appears.

Q: MINUTES OF MEETINGS IN ELECTRONIC FORM - RULES 28 OF COMPANIES ACT

What are additional details regarding Rule 28 of Companies (Management and Administration) Rules, what are ways to ensure full compliance of the security provision of minutes in electronic form

Advocate Anurag Upadhyaya answered
Sub rule 2 of Rule 28 provides the detailed mechanism for maintenance and security of electronic records.Sub-rule 2 of Rule 28 is reproduced herewith for your perusal(2) The person who is responsible for the maintenance and security of electronic records shall-(a) provide adequate protection against unauthorized access, alteration or tampering of records;(b) ensure against loss of the records as a result of damage to, or failure of the media on which the records are maintained;(c) ensure that the signatory of electronic records does not repudiate the signed record as not genuine;(d) ensure that computer systems, software and hardware are adequately secured and validated to ensure their accuracy, reliability and consistent intended performance;(e) ensure that the computer systems can discern invalid and altered records;(f) ensure that records are accurate, accessible, and capable of being reproduced for reference later;(g) ensure that the records are at all times capable of being retrieved to a readable and printable form;(h) ensure that records are kept in a non-rewriteable and non-erasable format like pdf. version or some other version which cannot be altered or tampered;(i) ensure that at least one backup, taken at a periodicity of not exceeding one day, are kept of the updated records kept in electronic form, every backup is authenticated and dated and such backups shall be securely kept at such places as may be decided by the Board;(j) limit the access to the records to the managing director, company secretary or any other director or officer or persons performing work of the company as may be authorized by the Board in this behalf;(k) ensure that any reproduction of non-electronic original records in electronic form is complete, authentic, true and legible when retrieved;(l) arrange and index the records in a way that permits easy location, access and retrieval of any particular record; and(m) take necessary steps to ensure security, integrity and confidentiality of records