I am sharing best judgments you can use to keep out relatives of husband out of false 498a…

Remember that I have made lots of videos of quashing 498a fir in case of relatives of the husband like his mother father, sister or brother.

Wife generally implicate relatives of the husband who are mother, father etc. just to kick more pressure on husband to fulfill all the demands which are exhobirant.

Here are the best judgements you should always use in quashing or discharge or in final arguments in 498a case.

1. Geeta Mehrotra & Anr vs State Of U.P. & Anr 

Best Judgement in this field this is a best judgement you should use in arguments

It was still left to be decided whether it was a fit case to send the appellants for trial when the FIR failed to make out a prima facie case against them regarding the allegation of inflicting physical and mental torture to the complainant demanding dowry from the complainant. Since the High Court has failed to consider all these aspects, this Court as already stated hereinbefore, could have remitted the matter to the High Court to consider whether a case was made out against the appellants to proceed against them. But as the contents of the FIR does not disclose specific allegation against the brother and sister of the complainant’s husband except casual reference of their names, it would not be just to direct them to go through protracted procedure by remanding for consideration of the matter all over again by the High Court and make the unmarried sister of the main accused and his elder brother to suffer the ordeal of a criminal case pending against them specially when the FIR does not disclose ingredients of offence under Sections 498A/323/504/506, IPC and Sections 3/4 of the Dowry Prohibition Act.

. We, therefore, deem it just and legally appropriate to quash the proceedings initiated against the appellants Geeta Mehrotra and Ramji Mehrotra as the FIR does not disclose any material which could be held to be constituting any offence against these two appellants. Merely by making a general allegation that they were also involved in physical and mental torture of the complainant-respondent No.2 without mentioning even a single incident against them as also the fact as to how they could be motivated to demand dowry when they are only related as brother and sister of the complainant’s husband, we are pleased to quash and set aside the criminal proceedings in so far as these appellants are concerned and consequently the order passed by the High Court shall stand overruled. The appeal accordingly is allowed.

2. AIR 2003 SC 1386 in the matter of B.S. Joshi & Ors. vs. State of Haryana & Anr. it was observed that there is no doubt that the object of introducing Chapter XXA containing Section 498A in the Indian Penal Code was to prevent the torture to a woman by her husband or by relatives of her husband. Section 498A was added with a view to punish the husband and his relatives who harass or torture the wife to coerce her relatives to satisfy unlawful demands of dowry. But if the proceedings are initiated by the wife under Section 498A against the husband and his relatives and subsequently she has settled her disputes with her husband and his relatives and the wife and husband agreed for mutual divorce, refusal to exercise inherent powers by the High Court would not be proper as it would prevent woman from settling earlier. Thus for the purpose of securing the ends of justice quashing of FIR becomes necessary, Section 320 Cr.P.C. would not be a bar to the exercise of power of quashing. It would however be a different matter depending upon the facts and circumstances of each case whether to exercise or not to exercise such a power.

3. Ramesh vs. State of Tamil Nadureported in (2005) SCC (Crl.) 735 at 738

. The High Court by the impugned order dismissed the petition observing that the grounds raised by the petitioners were all subject matters to be heard by the trial court for better appreciation after conducting full trial as the High Court was of the view that it was only desirable to dismiss the criminal original petition and the same was also dismissed. However, the High Court had directed the Magistrate to dispense with the personal attendance of the appellants.

Their Lordships of the Supreme Court in this matter had been pleased to hold that the bald allegations made against the sister in law by the complainant appeared to suggest the anxiety of the informant to rope in as many of the husband’s relatives as possible. It was held that neither the FIR nor the charge sheet furnished the legal basis for the magistrate to take cognizance of the offences alleged against the appellants. The learned Judges were pleased to hold that looking to the allegations in the FIR and the contents of the charge sheet, none of the alleged offences under Section 498 A, 406 and Section 4 of the Dowry Prohibition Act were made against the married sister of the complainant’s husband who was undisputedly not living with the family of the complainant’s husband. Their Lordships of the Supreme Court were pleased to hold that the High Court ought not to have relegated the sister in law to the ordeal of trial. Accordingly, the proceedings against the appellants were quashed and the appeal was allowed.

4. Preeti Gupta & Anr vs State Of Jharkhand & Anr on 13 August, 2010

Admittedly, appellant no.1 is a permanent resident of Navasari, Surat, Gujarat and has been living with her husband for more than seven years. Similarly, appellant no.2 is a permanent resident of Goregaon, Maharasthra. They have never visited the place where the alleged incident had taken place. They had never lived with respondent no.2 and her husband. Their implication in the complaint is meant to harass and humiliate the husband’s relatives. This seems to be the only basis to file this complaint against the appellants. Permitting the complainant to pursue this complaint would be an abuse of the process of law.

28. It is a matter of common knowledge that unfortunately matrimonial litigation is rapidly increasing in our country. All the courts in our country including this court are flooded with matrimonial cases. This clearly demonstrates discontent and unrest in the family life of a large number of people of the society.

29. The courts are receiving a large number of cases emanating from section 498-A of the Indian Penal Code which reads as under:-

“498-A. Husband or relative of husband of a woman subjecting her to cruelty.–Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine. Explanation.–For the purposes of this section, `cruelty’ means:-

(a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or

(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.”

It is a matter of common experience that most of these complaints under section 498-A IPC are filed in the heat of the moment over trivial issues without proper deliberations. We come across a large number of such complaints which are not even bona fide and are filed with oblique motive. At the same time, rapid increase in the number of genuine cases of dowry harassment are also a matter of serious concern.

The learned members of the Bar have enormous social responsibility and obligation to ensure that the social fiber of family life is not ruined or demolished. They must ensure that exaggerated versions of small incidents should not be reflected in the criminal complaints. Majority of the complaints are filed either on their advice or with their concurrence. The learned members of the Bar who belong to a noble profession must maintain its noble traditions and should treat every complaint under section 498-A as a basic human problem and must make serious endeavour to help the parties in arriving at an amicable resolution of that human problem. They must discharge their duties to the best of their abilities to ensure that social fiber, peace and tranquility of the society remains intact. The members of the Bar should also ensure that one complaint should not lead to multiple cases.

Unfortunately, at the time of filing of the complaint the implications and consequences are not properly visualized by the complainant that such complaint can lead to insurmountable harassment, agony and pain to the complainant, accused and his close relations.

The ultimate object of justice is to find out the truth and punish the guilty and protect the innocent. To find out the truth is a herculean task in majority of these complaints. The tendency of implicating husband and all his immediate relations is also not uncommon. At times, even after the conclusion of criminal trial, it is difficult to ascertain the real truth. The courts have to be extremely careful and cautious in dealing with these complaints and must take pragmatic realities into consideration while dealing with matrimonial cases. The allegations of harassment of husband’s close relations who had been living in different cities and never visited or rarely visited the place where the complainant resided would have an entirely different complexion. The allegations of the complaint are required to be scrutinized with great care and circumspection. Experience reveals that long and protracted criminal trials lead to rancour, acrimony and bitterness in the relationship amongst the parties. It is also a matter of common knowledge that in cases filed by the complainant if the husband or the husband’s relations had to remain in jail even for a few days, it would ruin the chances of amicable settlement altogether. The process of suffering is extremely long and painful.

Before parting with this case, we would like to observe that a serious relook of the entire provision is warranted by the legislation. It is also a matter of common knowledge that exaggerated versions of the incident are reflected in a large number of complaints. The tendency of over implication is also reflected in a very large number of cases.

The criminal trials lead to immense sufferings for all concerned. Even ultimate acquittal in the trial may also not be able to wipe out the deep scars of suffering of ignominy. Unfortunately a large number of these complaints have not only flooded the courts but also have led to enormous social unrest affecting peace, harmony and happiness of the society. It is high time that the legislature must take into consideration the pragmatic realities and make suitable changes in the existing law. It is imperative for the legislature to take into consideration the informed public opinion and the pragmatic realities in consideration and make necessary changes in the relevant provisions of law. We direct the Registry to send a copy of this judgment to the Law Commission and to the Union Law Secretary, Government of India who may place it before the Hon’ble Minister for Law & Justice to take appropriate steps in the larger interest of the society.

5. Ruchi Agarwal vs Amit Kumar Agrawal & Ors on 5 November, 2004

Learned counsel appearing for the appellant, however, contended that though the appellant had signed the compromise deed with the above-mentioned terms in it, the same was obtained by the respondent-husband and his family under threat and coercion and in fact she did not receive lump sum maintenance and her Stridhan properties, we find it extremely difficult to accept this argument in the background of the fact that pursuant to the compromise deed the respondent-husband has given her a consent divorce which she wanted thus had performed his part of the obligation under the compromise deed. Even the appellant partially performed her part of the obligations by withdrawing her criminal complaint filed under Section 125. It is true that she had made a complaint in writing to the Family Court where Section 125 Cr.P.C. proceedings were pending that the compromise deed was filed under coercion but she withdrew the same and gave a statement before the said court affirming the terms of the compromise which statement was recorded by the Family Court and the proceedings were dropped and a divorce was obtained. Therefore, we are of the opinion that the appellant having received the relief she wanted without contest on the basis of the terms of the compromise, we cannot now accept the argument of the learned counsel for the appellant. In our opinion, the conduct of the appellant indicates that the criminal complaint from which this appeal arises was filed by the wife only to harass the respondents.

In view of the above said subsequent events and the conduct of the appellant, it would be an abuse of the process of the court if the criminal proceedings from which this appeal arises is allowed to continue. Therefore, we are of the considered opinion to do complete justice, we should while dismissing this appeal also quash proceedings arising from the Criminal Case No.Cr.No.224/2003 registered in Police Station, Bilaspur, (Distt.Rampur) filed under Sections 498A, 323 and 506 IPC and under Sections 3 and 4 of the Dowry Prohibition Act against the respondents herein. It is ordered accordingly. The appeal is disposed of.

By Advocate Nitish Banka

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The question is if wife admits that she has done a false case to implicate other people in mediation can I use this as a evidence can mediator can be a witness?

The Answer of this question is clearly no.

Mediation proceedings are the confidential proceedings in which the party can do conversations without being threatned that the conversation can be used against the party themselves.

So even if wife admits that she has filed false cases against the husband and other inlaws then also the same cannot be used as an evidence.

See the Judgement Smriti Madan Kanagra.,

There can, be no quarrel with the proposition that the mediation proceedings are confidential and anything disclosed, discussed or proposed before the mediator need not be recorded, much less divulged and that if it is done there would always be an apprehension that the discussion may be used against the parties and it would hamper the entire process. The atmosphere of mutual trust warrants complete confidentiality and the same is in fact noted in the main judgment. The petitioner is aggrieved by its later part which notes “but where the scope of the mediation is resolution of child parentage issue, the report concerning the behaviour and attitude of the child would not fall within the bar of confidentiality”. To our mind, this is against the principle of mediation and charts the course of a slippery slope, as this judgment would hereafter discuss.

23. In this context, it is useful to recollect that an earlier decision of the Supreme Court had mandated proceedings before Family Courts could be held by using video-conference technology. The order referring the correctness of that decision in Santini I (supra) perceptively stated as follows:

―17. Unfortunately, it seems, none of these mandatory procedures as laid down by the Parliament have been brought to the notice of the Court while considering the case of Krishna Veni Nagam (supra). The principal thrust of the law in family matters is to make an attempt for reconciliation before processing the disputes in the legal framework. Reconciliation is not mediation. Neither is it conciliation. No doubt, there is conciliation in reconciliation. But the concepts are totally different. Similarly, there is mediation in conciliation but there is no conciliation in mediation. In mediation, the role of the mediator is only to evolve solutions whereas in reconciliation, the duty-holders have to take a proactive role to assist the parties to reach an amicable solution. In conciliation, the conciliator persuades the parties to arrive at a solution as suggested by him in the course of the discussions. In reconciliation, as already noted above, the duty-holders remind the parties of the essential family values, the need to maintain a cordial relationship, both in the interest of the husband and wife or the children, as the case may be, and also make a persuasive effort to make the parties reconcile to the reality and restore the relationship, if possible. TheFamily Courts Act expects the duty-holders like the court, counsellors, welfare experts and any other collaborators to make efforts for reconciliation. However, reconciliation is not always the restoration of status quo ante; it can as well be a solution as acceptable to both parties. In all these matters, the approaches are different.

18. The role of a counsellor in Family Court is basically to find out what is the area of incompatibility between the spouses, whether the parties are under the influence of anybody or for that matter addicted to anything which affects the normal family life, whether they are taking free and independent decisions, whether the incompatibility can be rectified by any psychological or psychiatric assistance etc. The counsellor also assists the parties to resume free communication. In custody matters also the counsellor assists the child, if he/she is of such age, to accept the reality of incompatibility between the parents and yet make the child understand that the child is of both parents and the child has a right to get the love and affection of both the parents and also has a duty to love and respect both the parents etc. Essentially, the counsellor assists the parents to shed their ego and take a decision in the best interest of the child.

The entire process of Mediation will be confidential and whatever is submitted to the Mediator will not be divulged or produced or be admissible in any Court proceedings. The Mediator will not be compelled to appear as a witness in any Court of law.‖

Advocate Nitish Banka

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19. To what extent the confidence and confidentiality will be safeguarded and protected in video conferencing, particularly when efforts are taken by the counsellors, welfare experts, and for that matter, the court itself for reconciliation, restitution of conjugal rights or dissolution of marriage, ascertainment of the wishes of the child in custody matters, etc., is a serious issue to be considered. It is certainly difficult in video conferencing, if not impossible, to maintain confidentiality. It has also to be noted that the footage in video conferencing becomes part of the record whereas the reconciliatory efforts taken by the duty- holders referred to above are not meant to be part of the record. All that apart, in reconciliatory efforts, physical presence of the parties would make a significant difference. Having regard to the very object behind the establishment of Family Courts Act 1984, to Order XXXIIA of the Code of Civil Procedure and to the special provisions introduced in the Hindu Marriage Act under Sections 22, 23, and 26 , we are of the view that the directions issued by this Court in Krishna Veni Nagam (supra) need reconsideration on the aspect of video conferencing in matrimonial disputes.‖

24. Later, in the main majority judgment (Santini-II) in a three judge bench, the role of the Family Court was explained as follows:

―The reconciliation requires presence of both the parties at the same place and the same time so as to be effectively conducted. The spatial distance will distant the possibility of reconciliation because the Family Court Judge would not be in a position to interact with the parties in the manner as the law commands. By virtue of the nature of the controversy, it has its inherent sensitivity. The Judge is expected to deal with care, caution and with immense sense of worldly experience absolutely being conscious of social sensibility. Needless to emphasise, this commands a sense of trust and maintaining an atmosphere of confidence and also requirement of assurance that the confidentiality is in no way averted or done away with. There can be no denial of this fact. It is sanguinely private.

********** ********* The Family Court Judge is only meant to deal with the controversies and disputes as provided under the 1984 Act. He is not to be given any other assignment by the High Court. The in camera proceedings stand in contradistinction to a proceeding which is tried in court. When a case is tried or heard in court, there is absolute transparency. Having regard to the nature of the controversy and the sensitivity of the matter, it is desirable to hear in court various types of issues that crop up in these types of litigations. The Act commands that there has to be an effort for settlement. The legislative intendment is for speedy settlement. The counsellors can be assigned the responsibility by the court to counsel the parties. That is the schematic purpose of the law. The confidentiality of the proceedings is imperative for these proceedings.‖

You are saying that your wife has done a false case on you very well but do you know that if wife brings independant witnesses in court in her favour then it will be come case of conviction.

Independent witnesses are the key for 498a trial. Independent witnesses adds credibility of the case and courts start believing the statements of interested witnesses also.

Now ho are independant witnesses who can come and give statement against you.

These can be neighbors, family friends, common friends, far off relative, security guard, panchayat members.

If any one of these come as an eyewitness to the fact that you have demanded dowry infront of them then the court view on the case will change and can lead to conviction.

I have done some research on this

In the case of: Vithal Mhasuji Gadhe vs The State Of Maharashtra on 17 June, 2011

 Moreover, the testimony of Nandu Kale (PW 5), who is posed to be independent witness, loses its weightage since there is criminal background to the said witness which has been revealed in his cross examination. Moreover, even so called independent witness Nandu Kale (PW 5) nowhere spells out about alleged demand and harassment by the accused to victim Surekha due to non-fulfillment thereof and hence, his testimony cannot be of any aid and assistance to the case of the prosecution in respect of the said charge. Besides, there is variance between version of the said independent witness Nandu Kale (PW 5) and Laxman (PW 2), the complainant, regarding the said charge under Section 498A of IPC. Thus, the evidence adduced and produced by the prosecution is inconsistent and there are infirmities and discrepancies in the evidence adduced and produced by the prosecution and hence, considering the said deformities and also considering the other circumstances of the case, presumption under Section 113A of the Evidence Act cannot be raised against accused no.1 i.e. appellant herein, and conviction inflicted upon the appellant herein under Section 498A of IPC shall not sustasin since there is no basis and foundation of legal evidence therefor.

In Gujrat High Court Judgement

Evidence of one independent witness, friend of the deceased is a sufficient and material to prove ingredient of Sections- 498A and 306 of IPC and Dowry Act. I have minutely perused the evidence of PW-12-Nurhat Parvin, friend of the deceased, who disclosed reality of the allegations made against the present appellant-accused. After perusing genuineness of the evidence of the prosecution case in detail, learned trial Judge has rightly observed that prosecution has proved its case beyond reasonable doubt. As per the observations in the case of Ramilaben Hasmukhbhai Khristi w/o Hasmukhbhai Ashabhai (supra), Statements made under Section-174 of the Code of Criminal Procedure, cannot be considered as substantive evidence. As per Section-113 of Indian Evidence Act, presumption is required to be drawn against the present appellant-accused. I am of the opinion that learned trial learned trial Judge has rightly convicted the appellant- accused for the alleged offences

independent witness-PW-12-Nurhat Parvin, who is a friend of the victim, there was mental and physical torture given by the appellant to the deceased and due to such conduct, deceased committed suicide. Mr.Soni, further submitted that this witness is a star witness of the prosecution case and through cross-examination of this witness, defence could not establish any negative conduct of this witness.

Advocate Nitish Banka

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In this Lockdown period there are many cases in which tenants are making an excuse to not to pay the rent due to lockdown as they are not able to use the property.

Many businesses are shut down especially the hospitality industry and there is default in payment of rent to the landlord.

The arguments on behalf of the tenants is legitimate and excuse is also legitimate.

But what about the landlords, why do they suffer if tenants are suffering. Tenants are still occupying the property then they have to pay the rent.

Now this is not the case where the property has become unusable.

This debate is now quite common and these issues needed detailed adjudication and the Delhi High Court in order to resolve the dispute passed a Judgement

Ramanand & Ors. v. Dr. Girish Soni & Anr

In this case the Hon’ble high court discussed the questions regarding payment of rent and Covid 19 situation.

If an agreement contains force majeure clause and the tenant wants to vacate the premises then only the question of waiver can be considered otherwise the tenant has to pay the rent.

As tenant landlord relationship is governed by section 108 case in this case

The Tenants’ application for suspension of rent is thus liable to be rejected inasmuch as while invoking the doctrine of suspension of rent on the basis of a force majeure event, it is clear from the submissions made that the Tenants do not intend to surrender the tenanted premises. While holding that suspension of rent is not permissible in these facts, some postponement or relaxation in the schedule of payment can be granted owing to the lockdown.

But landlord also cannot evict the tenant without due process of law.

Conclusion

Some time can be granted for payment of rent.

Advocate Nitish Banka

Gifts Given in Marraige or other Cermony

In Indian culture we have many festivities during the marraige and after the marraige.

Now gifts are exchanged in all these festivities and sometimes they are termed as dowry or dowry articles as per the complaint filed by the wife.

Now with the help of certain judgements we will analyse the status of these gifts as dowry or not.

In the recent Judgement of Satvir Singh And Ors vs State Of Punjab And Anr

Some customary payments in connection with birth of a child or other ceremonies are prevalent in different societies. Such payments are not enveloped within the ambit of dowry.

Taunting for Dowry Demand

I have seen in many cases wherein there are allegations which are in the way of taunting. Mere taunting about dowry is insignificant and do not constitute an offence under section 498a of the IPC

 is well settled principle of criminal law that “mere taunting for bringing insufficient dowry is distinct from demand of dowry. Though taunting for bringing insufficient dowry is also an uncivilized act but does not come within the purview of section 498A IPC and hence not sufficient to constitute the offence U/s 498A IPC. Thus, mere allegations of taunting for bringing insufficient or less dowry will not be sufficient enough for framing of charge against the accused persons. In this regard, I am relying upon the judgment reported at AIR 1996 Supreme Court 67, wherein it has been held that­ Mere tauntings for bringing insufficient dowry is distinct from demand of dowry. Though tauntings for bringing insufficient dowry is also an uncivilized act but does not come within the purview of section 498A IPC and hence, not sufficient to constitute the offence under section 498A IPC.

It is held in Neera Singh Vs. State There might have been one or two instances of taunting for not bringing sufficient dowry but they are not sufficient enough to attract Section 498A. There are not specific allegations with respect to entrustment of dowry items to the accused persons. Since, the complainant stayed with her husband at Rewari, Haryana, the entrustment of dowry articles can be presumed to be to the husband. 

Financial help to Husband in day today finances

Sometimes being husband and wife there is a dire need to manage finances the husband takes help from wife or parents of the wife in day today finances. Does it constitutes dowry?

In Appasaheb Supreme Court Case

demand for money on account of some financial stringency or for meeting some urgent domestic expenses or for purchasing manure could not be termed as a ‘demand for dowry’, as the said word was normally understood. The Supreme Court in the facts of that case took the view that the evidence adduced by the prosecution did not show that any demand for “dowry” as defined in Section 2 of the Dowry Prohibition Act was made by the accused persons of that case as, what was allegedly asked for was some money for meeting domestic expenses and for purchasing manure. 

The Aquittal in 498A depends on certain principles of law which may be common in the cases however the facts of the case may change as per the circumstances but the principles remain the same.

Now what are these principles. Through this article I will test those principles and show you one or two principles are there in false 498a. Therefore the acquittal is important.

The First Principal is contradiction in 161 Statement.

Wife may give some statement in 161 statement and can give another improved statement before the court. The contradiction in 161 statement as compared to complaint as to the statement given the court can form the grounds of aquittal

In State vs . Pawan Yadav Etc. Fir 285/12 … on 29 January, 2018 The   arguments   before   me   are   full   of   factual   narrations   and advanced   in   a   manner  to   show   that   the   drastic  Improvements   and material contradictions are such that go to the root of the Prosecution case thereby rendering them so improbable that the defence seems to be more probable rather than the attack.

Of course, there has been development of case from stage to stage by PW­4, PW­5 and PW­18 as is evident from bare readings of their first statements to the SDM  and subsequently on 16.11.2012 to the   case   IO.     Even   retraction   from   earlier   statement   by  PW­5  is present in this case regarding amount of Rs.6 lacs given as dowry for purchase of a Car at the time of Marriage.  I shall touch upon these improvements  in  succeeding  Paragraphs  of  this  Judgment.    Before that, it is very important to point out that a specific question was put by the defence to PW­5 during his cross­examination recorded in the Court on 03.05.2016 and as per him the specific dates of ill treatment to his sister by accused persons  are 10.04.2012 and 06.11.2012. 

Interested witnesses

If there is no independent corroboration of alleged facts in the case then the case of the prosecution is weak and the accused can be acquitted on this alone.

In State vs . Anil Kumar on 23 January, 2015

PW2 and PW3 are only interested witnesses being brother and bhabhi of complainant. Further even from the testimony on record of PW2 and PW3 the allegations of offence under section 498A IPC against accused are not proved. Even PW2 has admitted that his sister has remarried. In view of the aforesaid I hold that prosecution has failed to establish the kind of cruelty as prescribed under section 498 A IPC, and thus accused deserves acquittal.

No entrustment of Dowry Article to specific person

In State Vs. Gajender Singh

The bare perusal of complaint Ex. PW1/B and evidence of complainant PW-1, there is no specific statement qua entrustment of any articles in favour of any accused. Moreover, the complainant nowhere states as to whom those articles were entrusted and at what time and under what circumstances. In her testimony in the court, the complainant only made a sweeping statement that all her jewellery articles have not been returned and they are still in possession of accused Dhanno Devi. From the aforesaid piece of evidence even the basic requirement of entrustment having been made in favour of any of the accused is not established. The complainant has also not stated that on what date, time, year or occasion she demanded her jewellery articles from whom and at what place.

Vague and no Specific allegation

In Shivendra Raizada & Others vs State Of U.P. & Another on 6 December, 2018

Secondly, so far as allegation against the applicants are concenred, that is also absolutely in the teeth of law laid down by the Apex Court and it is very much clear that there is no specific allegation against any of the applicants and allegations are also levelled upon the applicants, who are even not residing along with applicant No. 1. In fact, it is necessarily required to make specific allegation against each and evey applicants whose names are mentioned in the complaint or FIR in the matrimonial cases which is absolutely missing in this case.

These principles are perfect examples whatever the facts are however these principles are not a complete list there can be more principles.

If you are accused in a cheque bounce case and reading this article then i hope this article may be helpful to you. I will try to explain you in a very simple language as to how the cross examination in cheque bounce cases takes place.

If you are looking for a fixed strategy then I would say that there is no fix strategy to defend NI 138 it changes as per scenario. So we will be discussing different scenarios as mentioned below.

The strategy of cross examination depends on the defense you will be take. The court only expects at first why your signed cheque is in the hands of complainant who is claiming to be that you owe him money.

So you first have to convince yourself and then convince the Judge. So before cross examination one should ask this question “what is your signed cheque doing in the hands of the complainant?”

Now if you can’t answer this question then you don’t have a case try to settle the dispute else read further…

Scenario-1 Cheque issued towards friendly loan…Defense That your friend misused your trust and misused cheque.

Again here first you have to give an explanation about cheque given to the complainant on what condition and then cross examine…

Q1. What was the mode of payment of loan?

Q2. If it is cash can he show bank withdrawal?

Q3. If cash amount is huge then what was the source?

Q4. Has he filed ITR?

Q5. Has he mentioned amount in the Balance Sheet?

Q6. Is Balance sheet is with voucher or acknowledgement?

Q7. Is balance sheet audited?

Suggestion: You have not extended any loan and you have misused the cheques.

Scenario-2 Security cheque not given in lieu of debt..Defence Security Cheque

Q1. How many years are you dealing with the complainant?

Q2. How do you settle the accounts?

Q3. Do you take security cheques?

Q4. Do you maintain statement of accounts?

Q5. Can you show us the statement of account?

Q6. Where in the statement of account accused owe the cheque amount on that given day?

Accused did not owe you anything you have misused his security cheques

SO these are the two scenarios which are common in 80% cases.

Section 340 CrPc is a way to get a relief in the cases of perjury. Now if witness deposes falsely in court then only 340 comes into picture.

When is the right time to apply in court?

Is it at the time of filing the complaint wherein the complainant deposes falsely or at the time of evidence when complainant deposes falsely before oath.

Well the requirement of 340 CrPC is when there is an unimpreachable evidence on record and the complainant deposes falsely with respect to that evidence.

This is means that there has to be a true evidence and in comparison to that there must be falsely deposed statement.

The law under Section 340 on initiating proceedings has been laid down in several of our judgments. Thus in Chajoo Ram vs. Radhey Shyam, (1971) 1 SCC 774, this Court, in para 7, stated:

7. No doubt giving of false evidence and filing false affidavits is an evil which must be effectively curbed with a strong hand but to start prosecution for perjury too readily and too frequently without due care and caution and on inconclusive and doubtful material defeats its very purpose. Prosecution should be ordered when it is considered expedient in the interests of justice to punish the delinquent and not merely because there is some inaccuracy in the statement which may be innocent or immaterial. There must be prima facie case of deliberate falsehood on a matter of substance and the court should be satisfied that there is reasonable foundation for the charge.

Chandrapal Singh and Others vs. Maharaj Singh and Another, (1982) 1 SCC 466, this Court, in para 14, stated:

That leaves for our consideration the alleged offence under Section 199. Section 199 provides punishment for making a false statement in a declaration which is by law receivable in evidence. We will assume that the affidavits filed in a proceeding for allotment of premises before the Rent Control Officer are receivable as evidence. It is complained that certain averments in these affidavits are false though no specific averment is singled out for this purpose in the complaint. When it is alleged that a false statement has been made in a declaration which is receivable as evidence in any Court of Justice or before any public servant or other person, the statement alleged to be false has to be set out and its alleged falsity with reference to the truth found in some document has to be referred to pointing out that the two situations cannot co-exist, both being attributable to the same person and, therefore, one to his knowledge must be false.
Rival contentions set out in affidavits accepted or rejected by courts with reference to onus probandi do not furnish foundation for a charge under Section 199, I.P.C. To illustrate the point, appellant 1 Chandrapal Singh alleged that he was in possession of one room forming part of premises No. 385/2. The learned Additional District Judge after scrutinising all rival affidavits did not accept this contention. It thereby does not become false. The only inference is that the statement made by Chandrapal Singh did not inspire confidence looking to other relevant evidence in the case. Acceptance or rejection of evidence by itself is not a sufficient yardstick to dub the one rejected as false.

R.S. Sujatha vs. State of Karnataka and Others, (2011) 5 SCC 689 (at paras 15 & 16). This Court, after setting down the law laid down in these two judgments concluded:

Thus, from the above, it is evident that the inquiry/contempt proceedings should be initiated by the court in exceptional circumstances where the court is of the opinion that perjury has been committed by a party deliberately to have some beneficial order from the court. There must be grounds of a nature higher than mere surmise or suspicion for initiating such proceedings. There must be distinct evidence of the commission of an offence by such a person as mere suspicion cannot bring home the charge of perjury. More so, the court has also to determine as on facts, whether it is expedient in the interest of justice to inquire into the offence which appears to have been committed.

What if wife did not disclose her income and give false statement regarding her income?

In Jagdish Prashad Vs. State the court emphasized on twin requirements of 340 Crpc at first the court has to form an opinion based on an enquiry so enquiry and forming opinion is the basic requirement in 340 Crpc.

So for inquiry this example and judgement hold good now what happened in the above judgement

On 12th February 2004, Respondent No.2 was examined in chief in the maintenance petition. She stated: “I was not working anywhere after my marriage, I was not working till today anywhere from the date when I was kicked out from my matrimonial home.” She was cross examined on 7th April 2004 and was asked whether she was doing any job during the pendency of the petition. She replied that “since after coming to my parental home, I am not doing any job. I have one bank account in Co- operative Bank. It is incorrect to suggest that after coming to my parental home, I have worked with Tirath Ram Shah Charitable Hospital, Rajpur Road, Delhi.” In response to another specific question whether she was holding a bank account at Punjab National Bank, Civil Lines she stated as under:

“It is wrong to suggest that I am holding an account which is 427791 in the above said bank i.e., PNB”

5. Consequent upon the above replies in cross examination, the Petitioner filed an application under Section 340 CrPC seeking the prosecution of the Petitioner for committing perjury punishable underSection 193 CrPC.

6. It appears that a reply was filed to the said petition by Respondent No.2. Even evidence appears to have been led by examining the officials from both the Punjab National Bank as well as the Tirath Ram Shah Charitable Hospital.

7. RW-2 D.S. Bandari, Senior Manager, Punjab National Bank, Civil Lines, Delhi was examined on 28th September 2004. He confirmed that an account had been open by Respondent No.2 with the bank with the addresses “C/o Tirathram Shah Hospital, 2 Battery Lane, Rajpur Road, Delhi -54.” He stated:

“On 20.07.01 Smt. Veena Bhatt opened her account in Punjab National Bank, Civil Lines, Delhi. The account was introduced by Sh.B.Arora, SF account No.11908 with the address C/o Tirathram Shah Hospital, 2 Battery Lain(sic Lane), Rajpur Road, Delhi-54 with a initial amount of Rs.500/-. She was allotted account No.427791. Statement of the account since opening of the account till today is exhibited as Ex.RW2/A, Ex.RW2/B, Ex.RW2/C, Ex.RW2/D. At the time of opening of account Smt. Veena Bhatt stated her occupation “service” which has been written in point A over Ex.RW2/D.

8. RW-3 Manoj Nair, AAO, Tirath Ram Shah Hospital in his examination in chief stated as under:-

“The authority letter given by Dr.A.K.Dubey, Director is Ex.RW3/A. That from 06.06.01 to 10.06.02 Mrs.Veena served in Tirath Ram Shah Hospital. She was working as a receptionist on fixed term contract basis. The gross salary of Mrs.Veena was Rs.3,572/- only. Her employment no. was 1225. I identify Mrs. Veena who is present in the court. There was break in service for one day. Smt. Veena Bhatt was working as a receptionist and not as a trainee as per the record. In my hospital no receptionist trainee are engaged. She has not applied for the renewal of her further contract after 10.06.02. I can submit a copy of the application form and record of salary if required. The original is before this hon’ble court. Application for employment form is Ex.RW3/B (four pages) and the copy of salary register for the month of June, 2001 to June, 2002 are collectively Ex.RW3/C (12 pages).”

9. The cross examination only elicited the following clarification by Respondent No.2:-

“It is correct that Smt. Veena had not worked in the hospital as a permanent hospital (sic) or on ad hoc basis or on temporary basis she had worked only on contract basis.

10. The learned MM in the order dated 9th September 2005 came to the following conclusion:-

“I have gone through the record of the present application as well as the petition underSection 125 Cr.P.C., which is pending in the present court. Smt. Veena may have had a genuine cause for having worked as proved against her in her case and also admitted by her in the present proceedings. Nevertheless her pressing requirements for income does not exonerate her from the offence of having given false testimony in the court.

I am, therefore, of the opinion that Smt. Veena has committed an offence under Section 193IPC and she ought to be prosecuted for the same.”

Therefore it is important to lead evidence in defence before moving application under 340 CrPC.

Adv. Nitish Banka

9891549997

The battle of matrimonial disputes between husband and wife becomes really bad when a lot of unsubstantiated allegations are put against each other in the proceedings.

For example what if wife puts an allegation that her husband has extramarital affair with his own sister in court in the written statement that is the reason she is not living with him.

Now this type of allegation is insulting, stigmatic and grave. The husband should get a divorce on this allegation alone if wife alleges the same and puts such allegations without any evidence.

Now efforts from the husband side should be to make a issue of this allegation and mark it as OPD. Means onus to prove this issue will be on the wife.

The Judgement of Smt. Sadhana Srivastava Wife Of … vs Sri Arvind Kumar Srivastava will be of much useful in this context.

 The appellant-wife in her written statement denied the allegations of cruelty made by the husband in the petition for divorce. However, the fact of various litigation both civil and criminal between the parties and the compromise was admitted in the written statement.. In the additional pleas it was pleaded that behaviour of the respondent-husband was utterly dissatisfactory and against the pious relationship of the husband and wife and she was made target of shots of torture mentally, physically by all possible means by the husband, his parents, his elder brother and elder brother’s wife. Allegations of having an illicit and extra marital relation with one Km. Nitu Mehta @ Shalini, the sister of his elder brother’s wife were also made. It was also pleaded that; husband wanted to give elder son in adoption to his brother who’ was issueless. However, because of unwillingness and resistance put by wife, the husband could not succeed. It was further pleaded that husband found the presence of the wife and children as a hurdle in free access to Km Nitu @ Shalini and as such his behaviour became very undesirable to the extent that several times the wife and minor children were assaulted and beaten for no fault and without justification. On 9th June, the wife and children were abused and beaten and thrown out of the house and since then the husband never cared to maintain them. It was further alleged that on 18.1.1991 the husband with the help of softie undesirable elements forcibly took away the elder son. The wife also made allegation in the written statement that the husband himself was responsible for the murder of the younger son.

Issue no.(7) was framed by the Family court about the alleged illicit and extra marital relationship of the husband. However, the appellant-wife herself moved an application dated 22.1.1997 stating that she did not want to press the said issue. She also did not led any evidence and accordingly, the said issue was decided in negative.

Nevertheless, the allegations were made, were serious in nature and merely by not pressing the issue on the point would not loose their impact and were there on the record of the case. Unfounded allegations of adultery made against the wife though not pressed during the proceedings have been held by the Hon’ble Apex Court to be cruel conduct by the husband entailing the wife to seek relief of divorce. In the case of R. Balasubramanian v. Vijayalakshmi Balasubramanian, it has been observed by the Apex Court as follows :

“Learned counsel appearing for the husband submitted that as far us the allegation of adultery against respondent-wife is concerned he is not going to press, That may be good of him but the fact remains that the allegation that the wife had sexual intercourse with a person other than (he husband is a serious allegation against the wife and shows the cruel conduct of the husband entitling the wife to seek relief against him under the Act or otherwise”.

In yet another decision in the case of Vijaykumar Rumchandra Bhate v. Neela Vijaykumar Bhate, , the Apex Court has held that allegation of extra marital relationship constitutes grave assaultion the character, honour and reputation of wife. Such allegations though withdrawn by seeking amendment in written statement which may have been allowed amounts to cruelty entitling the petitioner to a decree of divorce. Following observations made by the Court may be relevant to quote :

“That apart, even the fact that the application for amendment seeking deletion of the accusations made in the written statement was ordered and amendments carried out subsequently does not absolve the husband in this case, from being held liable for having treated the wife with cruelty by making earlier such injurious reproaches and statements, due to their impact when made and continued to remain on record. To satisfy the requirement of Clause (I-a) of Sub-section (I) of Section 13 of the Act, it is not as though the cruel treatment for any particular duration or period has been statutorily stipulated to be necessary. As to what constitutes the required mental cruelty for purposes of the said provision, will not depend upon the numerical count of such incidents or only on the continuous course of such conduct, but really goes by the intensity, gravity and stigmatic impact of it when meted 6ut even once and the deleterious effect of it on the mental attitude necessary for maintaining a conducive matrimonial home If the taunts, complaints and reproaches are of ordinary nature only, the courts perhaps need to consider the further Question as to whether their continuance or persistence over a period of time render, what normally would, otherwise, not he so serious an act to be so injurious and painful as to make the spouse charged with them genuinely and reasonably conclude that the maintenance of matrimonial home is not possible any longer A conscious and deliberate statement leveled with pungency and that too placed on record, through the written statement, cannot so lightly be ignored or brushed aside, to he of no conseauence merely because it came to be removed from the record only. The allegations leveled and the incidents enumerated in the case oh hand, apart from they being per se cruel in nature, on their own also constitute an admission of the fact that for quite some time in the past the husband had been persistently indulging in them, unrelented and unmindful of their impact. That the husband in this case has treated the wife with intense cruelty is a fact, which became a fait accompli the day they were made in the Written statement. They continued on record at any rate till the carrying of the amendment of the written statement and the indelible impact and scar they initially would have created, cannot be said to have got ipso factor dissolved, with (he amendments ordered. Therefore, no exception could be taken to the courts below placing reliance on the said conduct of the appellant, in this regard, to record a finding against him.”

What has been observed by the Apex Court in the case of wife will stand true and with equal force in the case of a husband as well. The allegation of having illicit relationship and extra marital affair made by the appellant wife against the respondent husband in her written statement, in our view, cannot but constitute mental cruelty of such a nature that respondent husband cannot be reasonably asked to live with the wife. Thus we see no illegality in the finding recorded by the trial Judge that the allegations of having illicit relationship and extra marital affair made by the wife against the husband amounted to cruelty.

Thus court granted divorce on this ground alone that wife was not able to prove extramartial affair.

Adv. Nitish Banka

9891549997

If you are contesting divorce on the grounds of cruelty and desertion then these points you have to keep in mind if you want to get Divorce

All the allegations in the plaint..

You need to mention all the allegations in the plaint so that the other party may get an opportunity to counter them. In many cases after receiving reply from the opposite party new allegations comes to your mind. Remember that new allegations cannot be introduced easily you need to amend your plaint and sometimes it can be denied by the Judge.

Retaining Documents

Sometimes the parties keep their documents to be used in future…Remember order 13 and order 7 rule 14. After issues are decided you will not be allowed to produce the documents and in such cases they will not accepted as evidence..If you are still at stage of getting documents then you have to be clear of this stage.

Not Corroborating evidence

90% of divorce cases are lot because there is no corraborating evidence to support your case. Merely filing affidavit which is a copy paste of the plaint will not give you divorce you need also present independent evidence. see this article

Not cross examining properly the evidence produce by opposite party

You need to cross examine the opposite party at length if he/she is alleging allegations like extramarital affair, cheating or any of the serious allegations like impotency.

Not highlighting the response of opposite party in failure to lead evidence.

Gene really lawyers only argue and point out that the evidence produced by their party but fail to point out the evidence produced by opposite party and if there is no evidence then serious allegations are also ground for divorce.

Fighting Case with no Evidence..

Maximum cases are lost because there is no evidence if you do not have evidence then don’t file a case…Do this instead—->Get divorce when you have no evidence