498a quash against relatives

498a quashed against relatives on false allegations

12/22/2016 Lal Babu Singh & Ors vs State Of Bihar & Anr on 7 August, 2013
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Section 498A in The Indian Penal Code
Section 482 in The Code Of Criminal Procedure, 1973
Section 200 in The Code Of Criminal Procedure, 1973
Section 498 in The Indian Penal Code
Section 202 in The Code Of Criminal Procedure, 1973
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Patna High Court Orders
Lal Babu Singh & Ors vs State Of Bihar & Anr on 7 August, 2013
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Miscellaneous No.35262 of 2012
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NI 138 Quashing

Here are the few judgements for  NI 138 Quashing

  1. On deposit of cheque amount along with interest @ 18% Pa from the date of cheque till date of payment the proceedings under 138 NI act was quashed. Dalmia Resorts Pvt Ltd V Deepak Gupta (2002)98 DLT 181
  2. When there was no averment in the complaint about petitioners, accused nos. 3 to 5 being in charge for conduct of business of accused no.1 company for the offence under NI. 138 NI act committed with their consent or connivance.
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Maintenance to professionally working wife

Here are some judgments which deals  with No Maintenance to professionally working wife

 

If both husband and wife equally qualified

“no law provides that a husband has to maintain a wife, living separately from him, irrespective of the fact whether he earns or not. Court cannot tell the husband that he should beg, borrow or steal but give maintenance to the wife, more so when the husband and wife are almost equally qualified and almost equally capable of earning. ”

kirti-sharma-vs-kapil-parashar-ors

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ALL About General Power of Attorney

What is a general power of attorney?

A power of attorney is an instrument that is used by people to confer authority on somebody else to legally act on their behalf. They can be of two types — special power of attorney (SPA) and general power of attorney (GPA). While an SPA is used for transfer of a specific right to the person on whom it is conferred, the GPA authorizes the holder to do whatever is necessary. For example, in property ‘sales’ using this instrument, the buyer gets a GPA from the seller not only for his own use of the property, but for further ‘sale’ to someone else if he so desires. Of course, a GPA holder can only ‘sell’ the property through another GPA.

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Things to check before buying a property

With the rise in the price of the property or getting a good price of the property, the unscrupulous sellers are selling their property to the multiple buyers. The common practice prevailing these days is that the seller enters into an agreement to sell with the first buyer and within the period of the execution of the agreement to sell, the seller gets the sale deed executed for the second buyer making the life hell for both the buyers.

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Acknowledgement of Debt & Limitation

Acknowledgement of Debt

Section 18 of the limitation act covers acknowledgement of debt  and thus the fresh start of the limitation period. It is a tool which always plaintiff uses to say that his suit is within the limitation period as there is an acknowledgement as per s.18 of limitation act and fresh limitation is started.

But what constitute an Acknowledgement which is under S.18 of the limitation act and starts the limitation period afresh. let us look at this example.

A lend money to B in year 2004, which is also due in 2004 and B acknowledge in writing in Year 2007 that he has money to pay to A, ordinarily the last date to file the suit is in the Year 2007 but due to acknowledgement within the year 2007 that the last date to file suit becomes 2010.

Here are the crucial aspect of acknowledgement

  1. it should be in writing, oral acknowledgement is inadmissible.
  2. It is should be made by the debtor only or his special attorney specifically assigned to make such acknowledgement, A manager of a company is only an employee and not entitle to issue acknowledgement
    Sh. R.K. Bhatia vs Container Corporation Of India … on 14 August, 2014
  3. The acknowledgement must be made within the limitation period as prescribed by the act.
  4. Like acknowledgement in book of accounts of a company as debt and signed by the

company director is a valid acknowledgement.

5. The wording of acknowledgement must be admission of debt, denial of its payment is of no consequence.

6. The trick is to have an undated acknowledgement signed by the debtor to prevent delaytory tactics of debtors.

Thanks & Regards,

Nitish Banka

9891549997

Interim Maintenance Reduced Judgments

Interim Maintenance Reduced Judgments

Here are some judgments in which the Interim Maintenance was reduced-:

Mohd. Zafarullah Khan vs Yasmeen Khan And Ors. on 3 November, 1989

11. Now on facts, the wife is working as a beautician and earning something. So far as the minor daughters are concerned, the petitioner has earned a huge amount staying in foreign countries and it is not difficult for him to pay at least Rs. 500/- per month to each of his daughters according to the status of the minor daughters which they enjoyed prior to the separation of their parents. It is the common ground of the wife that the husband is screening the properties while the husband pleads that he has to maintain his old parents and unmarried brothers and sisters. Having regard to the facts and circumstances of this case and considering the potentialities and status of the parties, I think Rs. 500/-per month each to respondents 2 and 3 would be the reasonable amount towards their maintenance pending disposal of the suit.

12. The order of the lower Court granting Rs. 2.000/- per month to the 1st respondent herein for a period of 3 months i.e., Iddat period as interim maintenance, is set aside as the same has to be determined after a full dressed trial at the time of the final disposal of the suit. The interim maintenance granted to respondents 2 and 3 is reduced to Rs. 500/-per month each.

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498a Quashing-How to Quash?

These days its quite an easy tasks for women to register a FIR by attributing allegations of cruelty and a case is registered and thereby the husband and his family members has to go harassment and torture. Now one remedy is available for them which can relieve them from all the harassment and torture and that is quashing of FIR under 482 CrPC. But this remedy is generally very sparingly and rarely exercised by the courts. Generally allegations of cruelty are mentioned in the FIR and based on this FIR is lodged but sometimes police forgets that in the cases of 498a general allegations of cruelty does not stand, the allegation must qualify either of the two parts as envisaged in section 498a.

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First part is that the harassment which can be physical or mental is of such a nature that it could cause women to put her under grievous hurt or she may even commit suicide based on such harassment, therefore only gravest form of harassment are covered, but less graver form of harassment can be used in civil suit for divorce. if the FIR does not satisfy this ingredient the Fir can be quashed as held

In Nagawwa v. Veeranna Shivalingappa Konjalgi, (1976) 3 SCC 736, it was held that the Magistrate while issuing process against the accused should satisfy himself as to whether the allegations made in the complaint, if proved, would ultimately end in the conviction of the accused. It was held that the order of Magistrate for issuing process against the accused could be quashed under the following circumstances: (SCC p. 741, para 5)    “(1) Where the allegations made in the complaint or the statements of the witnesses recorded in support of the same taken at their face value make out absolutely no case against the accused or the complaint does not disclose the essential ingredients of an offence which is alleged against the accused; (2) Where the allegations made in the complaint are patently absurd and inherently improbable so that no prudent person can ever reach a conclusion that there is sufficient ground for proceeding against the accused;
(3) Where the discretion exercised by the Magistrate in issuing process is capricious and arbitrary having  been  based  either  on  no  evidence  or  on  materials  which  are  wholly  irrelevant  or
inadmissible; and (4) Where the complaint suffers from fundamental legal defects, such as, want of sanction, or absence of a complaint by legally competent authority and the like.”

Shakson Belthissor vs State Of Kerala & Anr on 6 July, 2009

In order to understand the meaning of the expression `cruelty’ as envisaged under Section 498A, there must be such a conduct on the part of the husband or relatives of the husband of woman which is of such a nature as to cause the woman to commit suicide or to cause grave injury or danger to life, limb or health whether mental or physical of the woman.

Therefore if prima facie the charge sheet or FIR does not disclose an offence under section 498a the court can quash

the proceedings.

Warm Regards,

Adv.Nitish Banka

Advocate Supreme Court of India

nitish@lexspeak.in

Rape and Promise to Marry

This question very often comes to the mind of a girl who had entered into physical relation with her boyfriend on the false promise of being married and when the marriage actually couldn’t happen for any reasons whatsoever, the girl start to feel being physically abused or raped sometimes.  Since large number of cases are being filed everyday it becomes really difficult for the police to collect direct evidence as in such cases the promises if any given or consent taken on the basis of those false promises are between the girl and a boy and the police as well as the courts have to rely on the circumstantial evidences in order to come to a finding as to whether the consent was taken on the false promise of marriage in future or not.

 

rape_jun1.jpg

Now let us understand the concept of consent in terms of free consent as defined in the Indian Penal Code, 1860. Section 90 of the Indian Penal Code defines the term for the propose of this code and it says that Consent known to be given under fear or misconception.—A consent is not such a consent as it intended by any section of this Code, if the consent is given by a person under fear of injury, or under a misconception of fact, and if the person doing the act knows, or has reason to believe, that the consent was given in consequence of such fear or misconception; or Consent of insane person.—if the consent is given by a person who, from unsoundness of mind, or intoxication, is unable to understand the nature and consequence of that to which he gives his consent; or Consent of child.—unless the contrary appears from the context, if the consent is given by a person who is under twelve years of age.

Therefore if the consent given by the girl under the misconception of fact the consent cannot be said to be free and so-called consent under a false promise of marriage is no consent. Accordingly, the consent obtained in establishing a physical relationship like husband and wife under false promise to marry is no consent as per law, if the intention of the boy was never to marry the girl since the inception at the time when the consent was taken and was merely taken for the purpose of physical exploitation of the girl. But if however the physical relation was entered into with the free consent of the girl then the same cannot be regarded as rape or on the basis of the false pretext of getting married.

Hon’ble Courts time and again have defined the term consent and held whether the consent so taken was free or not. In Deepak Gulati vs State Of Haryana Hon’ble Supreme Court of India held that sex based on the false promise of marriage can be rape in certain situations. The apex court observed that there is a clear distinction between rape and consensual sex and the court must very carefully examine whether the accused had actually wanted to marry the victim, or had mala fide motives. If the accused had made a false promise to only to satisfy his lust, it will fall within the ambit of cheating or deception and there is a distinction between the mere breach of a promise, and not fulfilling a false promise. The court further said that it must be examined whether promise was made at an early stage and whether the consent involved was given after wholly, understanding the nature and consequences of sexual indulgence. However, the court clarified that in some situations the prosecutrix agrees to have sexual intercourse on account of her love and passion for the accused, and not solely on account of misrepresentation made to her by the accused, the situation does not necessarily lead to rape and the court must consider other evidence as well for support.

Similarly, where an accused on account of circumstances which he could not have foreseen, or which were beyond his control, was unable to marry her, despite having every intention to do so, the case should be treated differently and cannot be considered rape if the other available evidence do not prove otherwise.

The fundamental principle behind the consent

Last year, the Delhi High Court held that a sexual relationship with a woman after making her a false promise of marriage amounts to rape. The conclusion was based on the logic that the so-called consent under a false promise of marriage is no consent. It further observed that a man receiving consent to sexual relations under false pretext does not amount to legal or valid consent and saving him from being accused and punished for rape. Widening the ambit of the law, the Delhi Court held that even if the woman is assumed to be a willing participant in their physical union, the fact that the man had no intention of marrying her would make it an instance where consent was given under a misconception, nullifying the efficacy of approval.

Therefore seeing the current position of law, the courts have to be very cautious and careful in coming to the conclusion as to whether the intention of the boy was to marry or not since the inception or merely to satisfy his lust.  The court should take into factors such as the whether the boy introduced the girl to his family, was introducing the girl as her would-be wife to his friends, and brought her mangalsutra or all the positive steps taken by a boy to show his clear and honest intention, but if due to the circumstances which were beyond the control of the boy he could not marry then that does not amount rape.

By-: Adv. Nitish Banka

9891549997

All About Maintenance and Interim Maintainence

Here is the summary or you may say links to all my posts which will enhance your Knowledge on Maintenance and Interim maintenance. Wondering how courts assess the maintenance and Interim maintenance amount here is post and 125 CrPc.

There are some landmark and important judgments on maintenance which would help you to fight and here is the post which will help to reduce maintenance amount. so if you are thinking of going for revision against 125 order, here is the post which shows the scope of revision in cases of 125 Crpc. Alteration of maintenance amount ordered by court is also possible.

So is Maintenance awarded to working wife and maintenance to husband is also possible if husband is working.

Here is a strategy to win the interim maintenance/maintenance case. Strategy  bargain the mainteinance amount

Thanks & Regards,

Advocate Nitish Banka

9891549997