Legal Questions

Question My father had taken a loan from a financer and had issued post-dated cheques towards its payment. Due to paucity of sufficient balance in the bank account, the cheque was dishonoured. The financer issued a notice to my father claiming the amount of the cheque but my father expired in an accident and as such the notice was returned with the death report of my father. Now the financer has filed a complaint against me under Section 138 of the Negotiable Instruments Act, as I am the legal representative of my father. Please guide me whether in such circumstances can I be held legally liable? What remedy is available to avoid unnecessary harassment?

ANSWER

It is well settled that criminal liability cannot be fastened to the heirs and the legal representatives of a person, who is said to have been guilty of the offence in question. Moreover, it is specifically provided in Section 118 of the Negotiable Instrument Act that proceedings under the complaint alleging offence under Section 138 of the said Act cannot be filed against legal representatives of the person who had is sued the cheque. The complaint filed by the financer against you is nothing but abuse of the process of court. You may approach the High Court for quashing of the said complaint by filling a petition under Section 482 of the Code of Criminal Procedure by referring to a recent judgment of the Bombay High Court in the case of Savita H. Sorle and others Vs. Rajesh Damidar Sarode and another reported as 2006(3) R.C.R. (Crl) 216.

Q1. I have filed a civil case against someone relating to a matter. Can I also file a criminal case against the same men for what he had done?

A. Mere pendency of a civil proceeding concerning the matter involved is no bar to initiation of criminal proceeding provided the action complained amounts to a criminal offence.

Q2. My friend a twenty-year-old boy is in love with a 15-year-old girl. He wants to have sex with her. Can he land up in some legal problem if he does so?

A. In India having intercourse with a Female of less than 16 years of age is an offence. Your friend can land up in problem if he does so a criminal case can be filed against him if it comes to light.

Q3. We are students of 1st year of college. We got involved in a street brawl with another group. One of the members of the other group got his tooth broken in the brawl. They are threatening legal action. Can they do so? If so of what nature?

A. Section 320 of the Indian Penal Code defines Grievous hurt. Grievous hurt includes fracture or dislocation of bone or tooth. In your case it seems that tooth of one of the person was broken, the punishment for such a small looking thing is much grave. Section 325 provides for the punishment for voluntarily causing Grievous hurt which is imprisonment upto the maximum of seven years along with the fine.

Q4. I am a businessman dealing in supply of grocery items. Recently one of my clients during the transactions gave a 500 Rupee note, which later turned out to be fake. What should I do?

A. You should immediately contact the Local Police Station and lodge complaint against the person from whom you have received the note. This is important for you to prove your bonafide.

Q5. Can entrustment of goods in case of hypothecated goods attract criminal breach of trust in situation where these goods are mis-appropriated?

A. The entrustment shall not be taken as technically actual transfer of the property. Even if the owner is in possession of the property, he is holding the property as a trustee on behalf of the person from whom money is taken. The Supreme Court has rightly held that for the offence of breach of trust the property in question must belong to a person other than the person to whom property is entrusted, but in your case the property now belongs to the person from whom the money is taken and you are retaining the property on behalf of that person. In your case if you sell the property you are liable for criminal breach of trust. Now suppose if you have handed over the property to the person from whom you have taken the money and if that person has returned you the property as a trustee in that case you are liable for criminal breach of trust. For more specific answer we need the terms of hypothecation agreement. Please refer (1971) 1 SCJ 132 and AIR 1951 Punjab 103.

Q6. For past few months my telephone bills are highly inflated. I feel somebody is misusing my line. Can I file an FIR?

A. Any citizen can file an FIR of theft of the above said telephone wire whether it belongs to you or belongs to any other person. The said FIR will be lodged under Section 379 of Indian Penal Code.

Q7. My friend was arrested without warrant. Can police do so under law? Kindly enlighten me on situations where this can be done?

A. There are various situations in which a person can be arrested without warrant. The Code of Criminal Procedure 1973 provides for some of these situations. Under Section 41 of the said Act prescribes for many such situations which are discussed hereunder: i) a person who is concerned in any cognizable offence or against whom a reasonable complaint has been made or credible information has been received or reasonable suspicion exists of his having been so concerned. ii) if a person is found in possession of any implement of house braking without lawful excuse . iii) if a person is proclaimed offender . iv) if a person is found in possession of a property suspected to be stolen and there is reasonable suspicion of his committing the offence v) if a person obstructs a police officers in execution of his duty or has escaped or attempts to escape from lawful custody. vi) if a person is reasonably suspected of being a deserter from any Armed forces of the Union. vii) a person against whom a reasonable complaint has been made or credible information has been received or reasonable suspicion exists of having been concerned in any act committed outside India which would have been a punishable offence in committed in India and for which he is under any law relating to any extradition, or otherwise, liable to be apprehended or detained in custody in India. viii) a person who, being a released convict, commits a breach of any rule made under sub-section (5) of Section 365. xi) a person for whose arrest any requisition, whether written or oral, has been received from another police officer, provided that the requisition specifies the person to be arrested and the offence or other cause for which the arrest is to be made and it appears therefrom that the person might lawfully be arrested without a warrant by the officer who issued the requisition. Under Section 42 0f the said Act any person can be arrested who, in the presence of a police officer, has committed or has been accused of committing a non-cognizable offence refuses, on demand of such officer, to give his name and residence or gives a name or residence which such officer has reason to believe to be false, he may be arrested by such officer in order that his name or residence may be ascertained. But when the true name and residence of such person have been ascertained, he shall be released on his executing a bond, with or without sureties, or appear before a Magistrate is so required. Provided that, if such person is not resident in India, the bond shall be secured by a surety or sureties resident in India. But if the true name and residence of such person could not be ascertained within twenty-four hours from the time of arrest or if he fails to execute the bond, or, if so required, to furnish sufficient sureties, he shall forthwith be forwarded to the nearest Magistrate having jurisdiction. Under Section 43 of the said Act a person can also be arrested by a private person who in his presence commits a non- bailable and cognizable offence, or any proclaimed offender, and, without unnecessary delay, shall make over or cause to be made over any person so arrested to a police officer, or, in the absence of a police officer, take such person or cause him to be taken in custody to the nearest police station. If the police officer has a reason to believe that such person comes under the provisions of Section 41, a police officer shall re-arrest him. If there is reason to believe that he has committed a non-cognizable offence, and he refuses on the demand of a police officer to give his name and residence, or gives a name or residence which such officer has reason to believe to be false, he shall be dealt with under the provisions of Section 42; but if there is no sufficient reason to believe that he has committed any offence, he shall be at once released. Under Section 44 of the said Act when any offence is committed in the presence of a Magistrate, whether Executive or Judicial, within his local jurisdiction, he may himself arrest of order any person to arrest the offender, and may thereupon, subject to the provisions herein contained as to bail, commit the offender to custody. Any Magistrate, whether Executive or Judicial, may order arrest of a person in circumstances to issue a warrant. But in all these cases the person arrested has to be produced before the Magistrate or the officer in charge of the police station without unnecessary delay as per Section 56 of the said Act. Also a person cannot be detained in custody for more than 24 hours without the permission of the Magistrate as per Section 57 of this said Act. Police in all such cases has to report to the District Magistrate or the Sub-Divisional Magistrate about the arrest and also the status of bail as per Section 58 of this said Act. A person can also be arrested without warrant as per certain local laws as applicable from place to place. For example in Delhi as per the Delhi Police Act 1978, a person can be arrested without warrant if an offence u/s 11 of Prevention of Cruelty to Animals Act, 1960, is committed in presence of the Police Officer. Thus it also depends on the area of your residence or on the place where the alleged act in contravention of law is committed and the local law applicable there.

Q8. Does selling of hypothecated property amounts of offence under Criminal Breach of Trust? If no why?

A. Yes. It is an offense u/s 406 of Indian Penal Code because the language of the Section categorically provides that if a person with dishonest intention violates the legal contract which prescribes the mode in which the TRUST is to be discharged then it amounts to Criminal Breach of Trust.

Q9. One of friend is charged under Section 406 407 & 409 and in the charge sheet it is only written as he is the son of vehicle owner I want to know how is the section related to the statement and one more thing he has already applied for discharge from this case but the advocate says it is still in process this is going since six months. Please give your view and suggestion?

A. The provisions of Sections 406, 407 and 409 Indian Penal Code relate to the offence of a carrier / vehicle or an agent committing a Criminal Breach of Trust. In the event of any property having been entrusted to a carrier / vehicle or an agent and the same having been misappropriated or converted to its own use, the person concerned is liable for punishment under the said provisions. If there is no allegation in the FIR or the Charge sheet against your friend of having been entrusted with any property and if he is being accused only on account of his being the son of the Vehicle owner, your friend is liable to be discharged from the case. Keeping in view the delays in the Indian Courts, it take sometime before such a decision can be taken and as such there is no need to be alarmed in the matter.

Q10. In case of hypothecation of property, the goods remain in possession of the owner and for the money lent, an interest is created in that property of the person lending the money. Now, one of the main ingredients of Section 405 of the Indian Penal Code, is entrustment of property. In case of hypothecation is there any entrustment of property because for entrustment there must be transfer of property. Secondly in umpteen no. of cases the Hon'ble Supreme Court has held that for the offence of breach of trust the property in question must belong to a person other than the person to whom property is ensured. In light of above discussion, does selling of hypothecated property amounts tobreach of trust?

A. The entrustment shall not be taken as technically actual transfer of the property. Even if the owner is in possession of the property, he is holding the property as a trustee on behalf of the person from whom money is taken. The Supreme Court has rightly held that for the offence of breach of trust the property in question must belong to a person other than the person to whom property is entrusted, but in your case the property now belongs to the person from whom the money is taken and you are retaining the property on behalf of that person. In your case if you sell the property you are liable for criminal breach of trust. Now suppose if you have handed over the property to the person from whom you have taken the money and if that person has returned you the property as a trustee in that case you are liable for criminal breach of trust. For more specific answer we need the terms of hypothecation agreement. Please refer (1971) 1 SCJ 132 and AIR 1951 Punjab 103.

Q11. What are the legal consequences against a person who has stolen telephone lines from neighbors or directly from under road line?

A. Any citizen can file an FIR of theft of the above said telephone wire whether it belongs to you or belongs to any other person. The said FIR will be lodged under Section 379 of Indian Penal Code.

Q12. My query is whether these offence be committed with respect to immovable property or not? I have precedents which say these offences can be committed with respect to only movable properties. Is there any precedent that these offences can be committed with respect to immovable property?

A. Offenses of the cheating and criminal breach of Trust can be committed in respect of immovable properties. Please read section 420, 405 and 406 of Indian Penal Code which squarely covers the offenses in respect of immovable property.

Q13. Is there any recent decision of Hon'ble Supreme Court which provide relief to the people, who are accused in criminal-civil cases more than ten years or there cases have been closed now? If so, kindly let me know in detail, giving there reference & supplying photocopies thereof at my home address?

A. In cases of offenses of minor nature Supreme Court decision in the case "Common Cause Vs Union of India & Ors" reported in AIR 1996 Supreme Court 1619 certain provisions have been made where if the cases are pending for long duration, the court has the power to close the case. Kindly specify the nature of your case or see the above state judgement. In other cases not covered under the said judgment, you can only file the mercy petition under Article 136 of Constitution as SLP for reduction of sentence.

Q14. A criminal appeal against severe punishment & heavy fine is still lying pending to decide before Additional Distt. & Session Judge Mandi (H.P.) since September 1994, inspite of my various requests and many dates fixed so for? What steps I should take to get justice at an early date?

A. You can file the petition under Art. 227 of Constitution of India before the Hon'ble High Court for direction to Session judge for early disposal of the case.

Q15. What can I do if a police officer at the police station refuses to register my FIR?

A. Under the provisions of Criminal Procedure Code on the refusal of a Police Officer to register the complaint you can send the complaint by Registered Post to the Deputy Commissioner of Police of that District under whose jurisdiction that Police Station falls. This is provided under Section 154 (III) of Criminal Procedure Code. Said DCP is under duty to register the FIR if it discloses the offence. In the event of failure on the past of either to register the complaint, you can then file the complaint before the Metropolitan Magistrate under Section 190 of the Code of Criminal Procedure.

Q16. What is the punishment for a man who tortures a woman mentally, physically or verbally?

A. It is an offence punishable under section 498A of the Indian Penal Code, 1860, which is imprisonment for a term which may extend to three years and shall also be liable to fine.

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supplement from

www.vakilno1.com

Edited by

Haider Ajaz