Law related to Forgery!!

Here are the few judgements which would help you in defining forgery in a better sense, apply it in your case to determine whether allegations constitute forgery or not–

  1. This Definition was adopted in Rembert vs. State 25 Am. Rep. 639. In another case, namely, State vs. Phelps 34 Am. Dec. 672, it was laid down that forgery is the false making of any written instrument, for the purpose of fraud or deceit. This decision appears to be based on the meaning of forgery as set out in Tomlin’s Law Dictionary.
  2. From the above, it would be seen that fraud is an essential ingredient of forgery.

http://indiankanoon.org/doc/89564/

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Independence Day Free Legal Aid Program-8 Aug-16 Aug

This independence day get a respite from your legal issues, from LexSpeak.

For promoting access to justice and facilitating legal awareness LexSpeak offers Free Legal aid on any issues concerning any matter pertaining to law.

Vande Matram!!

 

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Prepared to Quash 498a False case!!

Quashing of 498a is not easy, a petition under 482 CrPC is often filed in the HC if a person is aggrieved by a false case, here are the points which would cause rejection of your petition under 482 CrPC

1.No defect in FIR

If the FIR disclose an offence prima facie in nature then HC has no power to quash the petition under 482 CrPC, Under 482 CrPC HC has no power to go into evidence.

2. No Lapse in procedure

If the HC is satisfied that trial court has followed all the procedure then HC may not interfere in the findings of the trial court.

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Interim Maintenance order is not interlocutory order! Can be revised

After considering the whole matter, I am of the view that the argument has no force. Under the Code there is no provision for filing an application for granting interim maintenance during the pendency of main application under Section 125 of the Code after the Supreme Court judgment holding the right of the petitioner under Section 125 of the Code to get interim maintenance. Almost in all cases applications for interim relief are being made. This application for interim maintenance is by itself separate matter and . it has to be disposed of separately much earlier than the final order in the main case. By an order of interim maintenance, the rights of the parties are affected and decided finally in respect of that subject matter and by no stretch of imagination such an order can be called an interlocutory order.

Read judgement-  http://indiankanoon.org/doc/427266/

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How to claim maintenance..

Maintenance is a right which a husband, wife ,children and old parents can exercise under various provisions of law.Now which provisions are applicable in your case you can have a look below.

Maintenance U/S 24  HMA

  1. It is maintenance pedente lite, ie during the pend-ency of any proceedings under HMA(Hindu Marraige Act)
  2. Claimed by both husband or wife.
  3. To be filed with proceedings of divorce, Restitution of conjugal rights,Maintenance u/s 25, annulment cases

caution : If you are filing cases under 498a or under DV act application U/S 24 is not maintainable.

Scope: Temporary in nature only till pend ency of certain proceeding.

Maintenance under Section 25 HMA

1. Both husband and wife are entitled to permanent maintenance throughout such period not exceeding their life.

2. Longer time

3. However if wife remarries or husband have a sexual intercourse outside wedlock the maintenance can be denied.

4. Section 24 and 25 should be filed together for greater relief.

Scope-:only till the time party don’t marries.

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Why Tejpal did not get Anticipatory bail?

Anticipatory Bail envisaged in 438 CrPc with an intent to protect people who may face arrest due to false accusation.As there was no remedy for a false complaint earlier and the accused person have to apply for Bail after his arrest which could cause maligning of the image of the accused person if the complaint was false and it was against the principles of personal liberty.  In order to protect the accused from arrest due to false complaint and protect his image the provision of Anticipatory bail was introduced in CrPC.

But again in cognizable offence bail is not a matter of right and there are certain conditions which needs to be fulfilled by the accused person before an anticipatory bail application is to be decided.

In the case of Tarun Tejpal he is facing a serious accusation of Rape, which in itself is very grave which generally make court reluctant in giving anticipatory bail in such grave cases as a) Gravity of offence is one parameter but it is not the only parameter in deciding anticipatory bail plea.But still if the accused is fully cooperating with the investigation the court can still think that custody in this case is not necessary. But in this case it is clear from so many days despite the police after giving summons he is b) avoiding investigation. Then again the principle of anticipatory bail is to protect the victims from false complaint to which c) Tarun Tejpal has pleaded that there is political vendetta to destroy his image. But again this plea is not a tall convincing. As why would a lady would malign her image or would take a risk to put a grave accusation of Rape on a man while there is a greater risk that woman image would  more likely to be torn off with such grave accusation. d) On top of it Goa police has a genuine need to take custody of the accused in order to further their investigation. e) Tarun Tejapal also holds an Influential position he can influence victim and her family.

Between the conflicting interests of individual liberty and society and considering the points a) to e) there is no reason that Tarun Tejpal case is a fit case for Anticipatory Bail. But

But what I failed to understand why did Tejpal played a game of avoiding Goa Police, when he was summoned he should have directly presented himself to the police.He should have applied for anticipatory bail to Goa session court immediately after Goa police took suo moto cognizance.He wasted his time and made his case weak by applying in Delhi High court for an anticipatory bail.At this stage when statement of complainant is recorded, when prosecution has made their case strong and it is matter of time that the case would now go for trial, Tejapal is applying for anticipatory bail. I feel that things unfolded in 2-3 days would itself hamper his chances of getting a bail leave alone anticipatory bail.

The defense who failed to defend accused in Nirbhaya’s case.

The trial of Nirbhaya’s case is now over and the five accused were convicted and awarded highest form of punishment as per the law. But how the four accused before the Saket court defended their case. Although I personally feel that there should be no defense to their heinous acts, which shook the conscience of the country. But for a fair trial the accused person were given an opportunity to defend their case in consonance with the principles of natural justice. They all took different pleas but all their pleas were demolished by the evidence produced by the prosecution.

Here are the brief about various defense pleas taken by the accused in the Nirbhaya’s case and how each of their plea rejected by their Lordship.

1. Plea of Alibi

All the four accused took the plea of Alibi; they all stated they were not in the alleged bus where this heinous crime took place. But this plea was completely demolished by the inconsistencies in the statements of their own witnesses.

The evidence produced by the prosecution in which the DNA profiling of all the accused was found inside the bus and on the Nirbhaya’s clothes suggested their presence in that alleged bus on that fateful night.

2. DNA evidence is unreliable.

It was pleaded by the accused that the DNA profiling was unreliable as there is an apprehension that police has manipulated the MLC reports against the accused person, They also submitted that police is falsely creating a plot and the DNA report is fake.

The Prosecution established the authenticity of the DNA, MLC reports by showing the chain of transfer of these samples from different spots, they have also clearly established the tamper proof mechanisms implemented by the police and how the court could rely on the evidence on its accuracy and authenticity.

The stand of prosecution was believed by their lordship hence the stand of defense was again discredited.

3. Statements of Prosecutrix were tutored/Prosecutrix was not in the position to give statements and cannot be relied upon.

This Stand of defence was again demolished by the prosecution,  The prosecution stated that prosecutrix was conscious while she was giving her dying declaration and this fact was again certified by the doctors who were treating the prosecutrix, Then again it is hard to believe that prosecutrix who was facing an apprehension of death would give tutored statement.

4. Mukesh was only driving bus he had no participation in crime.

The prosecution has established its case U/s 34 IPC i.e  criminal conspiracy beyond reasonable doubt, There was premeditated plan and an overt act was done as per unlawful agreement between accused person. It is irrelevant whether the accused was driving the bus. Being a part of conspiracy he was equally responsible for the acts of others. The blood stains of Nirbhiya on clothes of mukesh clearly establishes his participation, even if he is not a participant still he was equally responsible.

5. Inconsistencies in Prosecutrix friend FIR.

There were Inconsistencies in the FIR of the prosecutrix friend relating to the identity of  accused person and hence plea of defense was that the accused was of a mistakenly identified.

Lordship on this point held that merely some averments in FIR cannot demolish the prosecution case completely as FIR is not conclusive evidence and it needs to be corroborated with other evidence. The stand of the defence was again demolished.

Conclusion

The case of the prosecution was based on strong scientific evidence which was again corroborated with statements of other witnesses especially the statements of prosecutrix herself and her friend which led to establish the case against accused beyond reasonable doubt and thereby vitiating all the defense pleas which ultimately led to their conviction.

why its easier to do illegal sand mining in UP?

1. Sand mining is a lucrative business, as demand of high quality is high than supply, naturally I will get more money per ton of sand, As government is not auctioning sand mines at faster rate so for a simple reason illegal sand mining is lucrative.

2. The punishment for illegal sand mining under minor minerals rules in uttar pradesh is 6 months imprisonment or 1000 fine or both, I rather pay fine then to apply for a permit which would take time which I don’t know, I have never seen sand mafia in jail.

 

3. No hassle of lease or pay royalty to the government in the case of illegal sand mining, its easier to pay bribes than royalty.

4.In illegal sand mining the margin of profit is high as I can mine anywhere I wish and get a high quality sand than in legal sand mining where i am restricted.

5. Checks are minimal even if there is a crackdown on sand mafia it is the DM who will be punished.

6. Only requirement is I need minimal political connection for Illegal Sand Mining, but to get a legal sand mine lease and environmental clearance not even prime ministerial connection is sufficient. Even if I get the permit than environmental activist will file a PIL on me.

In India our administrative process is so sluggish and laws are not that strict which makes it easier to do an Illegal act then to do a legal act, This is what happening in UP,where there is a perfect environment to do illegal sand mining than to get an environmental clearance.