Advocate Mohan Kumar H G

Questions Answered by Advocate Mohan Kumar H G

Q: Cheque got bounced few days ago how to take legal action

Hi there, The cheque I dropped at bank was bounced on 8th October. Bank has given return memo as well. Kindly tell me how to initiate the process

Advocate Mohan Kumar H G answered
An offence under the NI Act shall be deemed to have been committed, if the following conditions are satisfied (Section 138): - Cheque must have been drawn by the drawer in favour of a payee on his bank account for payment of a legally enforceable debt either in full or partly- Cheque must have been returned by the Banker to the payee or holder in due course due to insufficient balance in the account of the drawer or it exceeds the arrangement he had with the bank, Proviso requires fulfillment following additional conditions a. Cheque must be presented within its validity period. b. Written Notice must be given demanding payment of the cheque amount within 15 days from the date of receipt of notice. Such notice must be issued within 30 days from the date of receipt of intimation of dishonour memo from bank and c. drawer fails to pay dishonored cheque amount within 15 days from the date of receipt of the notice When Cause of action arises?Cause of action arises only on failure of the drawer to pay demanded sum within the notice period and on expiry of notice period. What is the Procedure for filing a complaint? Let us now see the procedure mandated by the NI, Act for filing a complaint for prosecution of the accused. Complaint u/s 138 of NI, Act has to be filed within 30 days from the date of cause of action i.e. not before expiry of notice period nor after 30 days from the date of cause of action. The Apex court in the case of MSR Leathers V S planniappan & Anr, reversed its earlier judgment in Sadanandan Bhadran v. Madhavan Sunil Kumara and held that a payee or holder of a cheque can now issue a statutory notice to the drawer each time the cheque is dishonoured on subsequent presentations and institute proceedings on the basis of a second or successive statutory notice as well. Thus there is a trend in recent judgments of Supreme Court in interpreting the law relating to Cheque bouncing cases more in favour of the complainant. Similarly other recent judgments expressed a view that strict interpretation should not help dishonest drawers of cheque. Cognizance of offence: Section 142 of Act starts with “Notwithstanding any thing contained in Code of Criminal Procedure, 1973” and mandates that no court shall take cognizance of the offence unless a complaint in writing is given by the payee or holder in due course as the case may be and such complaint has to be made within one month from the date of cause of action. The effect of this non obstante clause is that NI Act overrides the provisions of CrPC to the extent as stated in the NI Act. This section also permits belated complaints filed after prescribed period provided the complainant satisfies the court with sufficient grounds for late filing. Summary Trial: Section 143 permits summary trial and it also starts with a non obstante clause. The contents can be summarized as follows: a. It gives power to judicial magistrate of First class or a Metropolitan Magistrate to try 138 cases summarily. b. It specifies that provisions of Section 262- 265 of CrPC shall apply, as far as may be, to summary trials. In other words discretion has been given to the Magistrate to apply or not to apply provisions of CrPC depending on the facts of the case. However in practice it is not exercised. c. Trial shall be conducted from day to day until its conclusion, unless the Court finds justifiable reasons for the adjournment of the trial beyond the following day. Courts must record reasons in writing for adjourning to a later date. Further courts shall make an endeavor to conclude the trial within 6 months. Mode of service of summons: Section 144 deals with mode of service of summons on the accused. It specifies that: a. Summons may be served at the place where the accused or witness ordinarily resides or carries on its business or personally works for gain.b. Summons can be served by speed post or such courier service authorised by the court of sessions and in case of refusal/receipt by any authorized person, court may declare it is duly served. Evidence on affidavit: Section 145 provides that complainant can give evidence on affidavit. Even though the NI act specifically provides for this, some Magistrates mechanically follow strict compliance of the provisions of section 261- 265 of CrPC. This is one of the main causes for abnormal delay in completion of trial. The complainant is made to appear twice at the pre-summoning stage and post summoning stage for cross examination or re-examination which really does not serve any meaningful purpose in 138 cases but contributes to the delay in the conclusion of trial. It is the accused who takes the maximum benefit out of such procedural delays. Conclusions of Supreme Court in “Indian Banks Association Vs Union of India” After referring the objects of Section 138 of NI Act, Section 262- 265 of CrPC and its past judgments in Mandvi Cooperative Bank Limited v. Nimesh B. Thakore (2010) 3 SCC 83, and Radhey Shyam Garg v. Naresh KumarGupta (2009) 13 SCC 201 on interpretation of Section 145 of NI, Act, it has drawn the following conclusions at Para 16 of the judgment: a. Evidence by way of an affidavit can be given and complainant is not required to examine himself twice i.e. once after filing the complaint and another time after summoning of the accused. b. There is no necessity to recall and re- examine the complaint after summoning of accused, unless the Magistrate passes a specific order as to why the complainant is to be recalled. c. In summary trial, after the accused is summoned, his plea is to be recorded under Section 263(g) Cr.P.C. and his examination, if any, can be done by a Magistrate and a finding can be given by the Court under Section 263(h) Cr.P.C. and the same procedure can be followed by a Magistrate for offence of dishonour of cheque since offence under Section 138 of the Act is a document based offence. Procedure framed by the Supreme Court: The Apex Court appreciating the efforts of Bombay and Kolkata high courts for speedy disposal of 138 cases, finally laid down the following procedure to be observed by all criminal courts in the country for speedy and expeditious disposal of 138 cases. The essence of these procedures can be summarized as follows: a. Metropolitan Magistrate/Judicial Magistrate e (MM/JM), on the day when the complaint under Section 138 of the Act is presented, shall scrutinize the complaint. If the complaint is accompanied by the affidavit and the documents are found in order, must take cognizance of the offence and direct issuance of summons on the same day. b. Summons must be properly addressed and sent by post as well as by e-mail address got from the complainant. Court, in appropriate cases, may take the assistance of the police or the nearby Court to serve notice to the accused. For notice of appearance, a short date is fixed. If the summons is received back un-served, immediate follow up action be taken. c. Court may indicate in the summon itself that if the accused makes an application for compounding of offences at the first hearing of the case, it may pass appropriate orders at the earliest. d. Court should direct the accused, when he appears to furnish a bail bond, to ensure his appearance during trial. On the day of appearance, Court may ask him to take notice under Section 251Cr.P.C to enable him to enter his plea of defence and fix the case for defence evidence, unless an application is made by the accused under Section 145(2) for re- calling a witness for cross-examination. e. The Court concerned must ensure that examination-in-chief, cross- examination and re-examination of the complainant are conducted within three months of assigning the case. The Court has option of accepting affidavits of the witnesses, instead of examining them in Court. Witnesses to the complaint and accused must be available for cross-examination as and when there is direction to this effect by the Court. Conclusion: It is hoped that Apex Court’s judgment will bring uniformity in the procedure to be observed by all criminal courts in the country in NI Act cases. In view of this judgment, all Magisterial courts must compel the accused to enter his plea of defence and close all avenues open till now for prolonging the proceedings for a speedy and expeditious disposal of 138 cases.

Q: Procedure to file for anticipatory bail without filing for FIR

How to get anticipatory bail in case of 498a without FIR

Advocate Mohan Kumar H G answered
The Supreme Court, expressed qualms over the correctness of its judgment in the case of Rajesh Sharma v. Union of India, wherein it had issued a new set of guidelines to prevent misuse of Section 498A of the Indian Penal Code.The Apex court issued a slew of directions for checking bogus 498A complaints, while noting, “It is a matter of serious concern that large number of cases continue to be filed under Section 498A alleging harassment of married women.

Q: Legal action against person claiming the land to be his after 24 years

There is civil case against my mother, where we bought the land from one of our relative in the year 1994 , till date its in our mothers name , Right now one of the oldest owner has come stating they owned in the year 1935 and claims to settle or evacuate the land. The previous owner from which we purchased no longer exist and when we turned to check the paper work and we are finding difficult to find the same. However when we purchased the land from the previous owner the khatha and mutation got transferred from their name to our name but we cannot find the proper paper under their names. Now one came forward when we purchased claiming its their land, Now after 24 years some one says it was theirs and claims we have got the land transferred illegally. Until 1973 the Record of rights was in their name, later we got transferred in 1994 now after 24 the case has been file what are the chances to win the case or probability of facing the case claiming the plantif has come back after 24 yr

Advocate Mohan Kumar H G answered
Adverse possession, sometimes colloquially described as "squatter's rights",[a] is a legal principle that applies when a person who does not have legal title to a piece of property—usually land (real property)—attempts to claim legal ownership based upon a history of possession or occupation of the land without the permission of its legal owner.[1]In general, a property owner has the right to recover possession of their property from unauthorized possessors through legal action such as ejectment. However, in the English common law tradition, courts have long ruled that when someone occupies a piece of property without permission and the property's owner does not exercise their right to recover their property for a significant period of time, not only is the original owner prevented from exercising their right to exclude, but an entirely new title to the property springs up in the adverse possessor. In effect, the adverse possessor becomes the property's new owner.[2][b] Over time, legislatures have created statutes of limitations that specify the length of time that owners have to recover possession of their property from adverse possessors. In the United States, for example, these time limits vary widely between individual states, ranging from as low as five years to as many as 40 years.[3]Although the elements of an adverse possession action are different in every jurisdiction, a person claiming adverse possession is usually required to prove non-permissive use of the property that is actual, open and notorious, exclusive, adverse, and continuous for the statutory period.[4][c]Personal property, traditionally known as "chattel", may also be adversely possessed, but owing to the differences in the nature of real and chattel property, the rules governing such claims are rather more stringent, and favor the legal owner rather than the adverse possessor. Claims for adverse possession of chattel often involve works of art.

Q: My ex gf registered a case against me for blackmailing

My gf has filed a case against me for blackmailing and threatening her, she has filed a case also for sharing our videos and photos to her parents. My question is how can sending private photos to her just to show what she is doing and not in exchange or demand of money can be a criminal offence? Also, why isn't the circumstances considered under which the photos and videos were shared? The photos and videos were shared with her parents because she got me beaten my police wrongly, she gave me false hopes on many occasions but failed to fulfil , she had sex with me in order to marry in future , she has used me for sex , used me for money and her peaceful mind .. she has used me according to her convenience and after she was done , after make me do things promising she would do things as promised once I do whatever she had asked, she would fulfil her promises but instead she got me beaten up by police, and in anger I sent it to her parents, also she is suffering from mental problem.

Advocate Mohan Kumar H G answered
Sharing nude pictures over WhatsApp can be illegal even if both the sender and the receiver consent. If there is to be a situation later where you need to defend yourself after sending such content to anyone, it can be problematic and I am writing about this from experience of a case. But don’t worry the police isn’t spying on you to see pictures you send and will not catch you for this offence. However if there is any criminal action later on, this act can be in question. There is no specific law against it and neither is there enough precedent. But if we look closely at Section 67 of the IT Act, 2008, it goes on to say that if somebody publishes or transmits any material which is lascivious or appeals to the prurient interest or if its effect is such as to tend to deprave and corrupt persons who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it, shall be punished on first conviction with imprisonment of either description for a term which may extend to three years.The gist is that, if you send something to someone or publish online that is lascivious (tending to excite lust, obscene etc.) it can land you up in prison for three years. Moreover, if it is a minor in question that you entice or induce (basically, get a person below 18 years of age to send you nude pictures or even get in a relationship with you), according to Section 67B the punishment can be for five years. But do not worry, the law also protects your privacy if someone tries to blackmail you or uploads your private pictures at any place or sends them to anyone. The law in India does not talk about sexting or revenge porn but these are the things that all of this relates to

Q: Is whatsapp a legally accepted medium to send summons

Court sent summons to my husband to his relative home. because we dnt have his proper address now so we sent to them.but they are saying dat person only not there in dat address it is a wrong address. like that they given.so shal we send notice through special messanger like whatsapp or email of that person. and is der any others ways are there?

Advocate Mohan Kumar H G answered
The Court in the case while allowing Petitioner’s plea stated that as the Petitioner was residing in Australia and ordinary service shall take time, the Petitioner is allowed to serve summons upon the Respondent no. 1 through WhatsApp, text messages and e-mail. Petitioner is directed to file an affidavit with regard to the submission/ fact that e-mail ID, mobile number etc. belongs to Respondent no. 1 and the service has been effected upon him only. As per reports, the case pertained to domestic violence.This is not the first instance that a Court has allowed service of summons through technological means. In May last year, the Delhi High Court in the case Tata Sons Limited & ors. v. John Doe(s) & ors. had permitted the Plaintiff to serve summons upon the Defendant by text message or WhatsApp or e-mail and to file affidavit of service.