How to bankrupt a company?

The Insolvency and Bankruptcy Code, 2016 (IBC) is the bankruptcy law of India which seeks to consolidate the existing framework by creating a single law for insolvency and bankruptcy. The bankruptcy code is a one stop solution for resolving insolvencies which previously was a long process that did not offer an economically viable arrangement. The code aims to protect the interests of small investors and make the process of doing business less incommodious.

Insolvency Resolution

The Code creates various institutions to facilitate resolution of insolvency.  These are as follows:

  • Insolvency Professionals: A specialized cadre of licensed professionals is proposed to be created. These professionals will administer the resolution process, manage the assets of the debtor, and provide information for creditors to assist them in decision making.
  • Insolvency Professional Agencies: The insolvency professionals will be registered with insolvency professional agencies. The agencies conduct examinations to certify the insolvency professionals and enforce a code of conduct for their performance.
  • Information Utilities: Creditors will report financial information of the debt owed to them by the debtor. Such information will include records of debt, liabilities and defaults.
  • Adjudicating authorities: The proceedings of the resolution process will be adjudicated by the National Companies Law Tribunal (NCLT), for companies; and the Debt Recovery Tribunal (DRT), for individuals. The duties of the authorities will include approval to initiate the resolution process, appoint the insolvency professional, and approve the final decision of creditors.
  • Insolvency and Bankruptcy Board: The Board will regulate insolvency professionals, insolvency professional agencies and information utilities set up under the Code.  The Board will consist of representatives of Reserve Bank of India, and the Ministries of Finance, Corporate Affairs and Law.

Insolvency Regulator

 The Code establishes the Insolvency and Bankruptcy Board of India, to oversee the insolvency proceedings in the country and regulate the entities registered under it. The Board will have 10 members, including representatives from the Ministries of Finance and Law, and the Reserve Bank of India.

Insolvency professionals

The insolvency process will be managed by licensed professionals. These professionals will also control the assets of the debtor during the insolvency process.

Bankruptcy and Insolvency Adjudicator:

The Code proposes two separate tribunals to oversee the process of insolvency resolution, for individuals and companies: (i) the National Company Law Tribunal for Company and Limited Liability Partnership Firms; and (ii) the Debt Recovery Tribunal for individuals and partnerships.


  • Initiation: When a default occurs, the resolution process may be initiated by the debtor or creditor. The insolvency professional administers the process.  The professional provides financial information of the debtor from the information utilities to the creditor and manage the debtor’s assets.  This process lasts for 180 days and any legal action against the debtor is prohibited during this period.
  • Decision to resolve insolvency: A committee consisting of the financial creditors who lent money to the debtor will be formed by the insolvency professional. The creditors committee will take a decision regarding the future of the outstanding debt owed to them.  They may choose to revive the debt owed to them by changing the repayment schedule or sell (liquidate) the assets of the debtor to repay the debts owed to them.  If a decision is not taken in 180 days, the debtor’s assets go into liquidation.
  • Liquidation: If the debtor goes into liquidation, an insolvency professional administers the liquidation process. Proceeds from the sale of the debtor’s assets are distributed in the following order of precedence: i) insolvency resolution costs, including the remuneration to the insolvency professional, ii) secured creditors, whose loans are backed by collateral, dues to workers, other employees, iii) unsecured creditors, iv) dues to government, v) priority shareholders and vi) equity shareholders.


First Amendment  

The Bill prohibits certain persons from submitting a resolution plan in case of defaults. These include: (i) willful defaulters, (ii) promoters or management of the company if it has an outstanding non-performing debt for over a year, and (iii) disqualified directors, among others. Further, it bars the sale of property of a defaulter to such persons during liquidation

Second Amendment

  • The Bill amends the Insolvency and Bankruptcy Code, 2016 to clarify that allottees under a real estate project should be treated as financial creditors.
  • The voting threshold for routine decisions taken by the committee of creditors has been reduced from 75% to 51%.  For certain key decisions, this threshold has been reduced to 66%.
  • The Bill allows the withdrawal of a resolution application submitted to the NCLT under the Code.  This decision can be taken with the approval of 90% of the committee of creditors.

How you can prove electronic evidence in court in 498A cases?

Generally in 498 A cases you will get an opportunity to lead defense evidence.

Sometime in court during the cross examination of the wife she always says that she or their relatives have never threatened to implicate husband in the false evidence.

Now in that case if there is a positive proof of such threats which generally in the form of call recordings then they can be proved in court of law

Procedure to prove recordings in court

As per the the Judgement of RM Malkani v. State of Maharashtra[4]. In this case, the prosecution case was based solely on the tape recorded conversation, which clearly proved the appellant’s intention to obtain a bribe. Tape recordings are also admissible evidence in court of law

The situation regarding the admissibility of the tape recordings as evidence was finally made clear by the Supreme Court in the case of Ram Singh v. Colonel Ram Singh. The apex court in this case laid down following principles regarding admissibility of such recordings:

  1. The voice of the person, against whom such recording is being produced as evidence, must be duly identified by the person who is producing such recording as evidence.
  2. The accuracy of the tape recorded statement has to be proved by the maker of the record by satisfactory evidence, either direct or circumstantial.
  3. Every possibility of tampering with either whole or any part of the tape-recorded statement must be ruled out; otherwise, it may render the said statement out of context and, therefore,
  4. The statement must be relevant according to the rules of the Indian Evidence Act.
  5. The recorded cassette must be carefully sealed and kept in safe or official custody.
  6. The voice of the person should be clearly audible and not lost or distorted by other sounds or disturbances.
Image result for evidence electronic

The evidence produced such as electronic evidence from the phone recording have to undergo 3 important steps.

  1. Relevancy-the evidence of mobile phone recording must pertains to facts in issue. i.e if the trial is of 498A then the defence must foocus on provinmg that the case is false any other matrimonial issue is dis credited.
  2. Reliability- That the court can rely on such a piece of evidence for this a certificate under 65B of the Evidence Act must be accompanied with the evidence it is the person who can take the ownership of the evidence.
  3. Authenticity- This can be proved by producing un altered original evidence. Which can also be examined by an expert.


How to Get Succession Certificate in Delhi

Succession Certificate is a certificate granted by the Courts in India to the legal heirs of a person dying intestate leaving debts and securities. A person is said to have passed away intestate when he/she does not leave a legal Will. Succession certificate entitles the holder to make payment of debt or transfer securities to the holder of certificate without having to ascertain the legal heir entitled to it. Succession certificate provides indemnity to all persons owing such debts or liable on such securities with regards to all payments made to or dealings had in good faith with a person to whom a certificate as granted. Hence, many organisation and person request for succession certificate before settling the debts or securities of the deceased in favour of the person claiming such debts or securities.

Procedure for Obtaining Succession Certificate

To obtain succession certificate, a petition to the District Judge within whose jurisdiction the deceased person ordinarily resided at the time of his or her death or, if at that time he or she had no fixed place of residence, the District Judge within whose jurisdiction any part of the property of the deceased may be found.

Petition for Certificate

A petition for succession certificate must contain the following particulars:

  • Time of death of the deceased;
  • Residence or details of properties of the deceased at the time of death within which Judge the jurisdiction falls under;
  • Details of family or other near relatives;
  • The rights of the petitioner;
  • Absence of any impediment to the grant of certificate;

Grant of Certificate

On making the petition, if the District Judge is satisfied as to the ground of making the petition, can grant an opportunity of hearing to persons who, in his/her opinion, should be heard. After hearing all parties, the Judge can decide the right of the petitioner to be granted the succession certificate. The Judge would then pass an order for grant of  certificate specifying the debts and securities set forth in the application empowering the person to receive interest or dividend or to negotiate or transfer or do both.

Restriction on Succession Certificate

A court can sometime require a bond with one or more surety or sureties or any other security for rendering an account of debts and securities received by the petitioner of succession certificate for indemnifying the persons who may be entitled to any part of the debt or securities.

Validity of Succession Certificate

A succession certificate has validity throughout India. If a certificate is granted in a foreign country by an Indian representation accredited to that State, it should be stamped in accordance with the Court Fees Act 1870 to have the same effect in India as a certificate granted in India.

Lawyer in Supreme Court/Advocate Supreme Court

Advocate Nitish Banka is a practicing advocate in Hon’ble Supreme Court of India. He has total experience of 7+ Years in Hon’ble supreme court and represented many clients. He has also worked in collaboration with renowned senior Advocates in Supreme Court like Siddharth Luthra, Geeta Luthra, Salman Khurshid and Prashant Bhushan.
Advocate Nitish Banka is a specialist in SLP both civil and criminal as well as writ petitions, Transfer petition in Supreme Court.
Advocate Nitish Banka is working with ultimate goal of giving relief to clients at best affordable fees.

Making Hon’ble Supreme Court approachable for a common man with quality to get best relief.

Recent Cases

SLP filed against Father in law just too harass him got dismissed by Supreme Court. Case Argued by Nitish Banka

Successful case transfer from Waynad to Bangalore. Case Argued by Nitish Banka

Transfer petition in favor of Husband a rare order Argued by Advocate Nitish Banka

Impounding of Passport as a Bail condition in 498a or other Criminal Offences

Generally we see that NRI’s are the worse hit when criminal proceedings are lodged against them in India.

These people work for their living in abroad and are on Indian Passport and on foreign visa. Any criminal proceedings in India can dent their employment prospects and Visa rejection.

Some courts in India give anticipatory bail on a condition that passports is impounded.

Can this condition be imposed?

No, Why? Because Section 10(3) of the passports act says the Passport authority has a power to impound passport and no other authority can.

Held in Capt. Anila Bhatia Vs, State of Haryana.

Section 10(3)(e) of the Passport Act specifically deals with impounding of passport whereas Section 104 Cr.P.C., allows the Court to impound the document to produce before the Court. The Passport Actoverrides the provision of Cr.P.C., for the purpose of impounding passport. In the present case in hand, the order directing to surrender the passport indefinitely amounts to impounding of the passport itself.

11 of 14 In the present case, while granting anticipatory bail to the petitioner, a condition has been imposed to surrender his passport before the trial Court. The petitioner is working a Pilot in Air India Airlines and her nature of duties are such that she is to fly aeroplane and as per duty roster assigned to her, she is to fly abroad on certain occasions where she is not aware about the next program as only a short notice is there during which it is very difficult for the petitioner to take prior permission and to have the the passport in case, the same is deposited.

No doubt, as per Section 102(1) of Criminal Procedure Code, the power of police officer is there to seize certain property. The police may have the power to seize a passport under Section 102(1) of the Criminal Procedure Code but it does not have the power to impound the same. Impounding of a passport can only be done by the passport authority under Section 10(3) of the Passports Act, 1967. There is a difference between seizing of a document and impounding a document. A seizure is made at a particular moment when a person or authority takes into his possession some property which was earlier not in his/her possession. Thus, seizure is done at a particular moment of time. However, if after seizing of a property or document, the said property or document is retained for some period of time, then such retention amounts to impounding of the property or document. In the Law Lexicon by P. Ramanath a Aiyar (2nd Edition), the word “impound” has been defined to mean “to take possession of a document or thing for being held in custody in accordance with law”. Thus, the word “impounding” really means retention of possession of a good or a document which has been seized.

12 of 14 Hence, while the police may have power to seize a passport under Section 102 Criminal Procedure Code if it is permissible within the authority given under Section 102 of Criminal Procedure Code, it does not have power to retain or impound the same, because that can only be done by the passport authority under Section 10(3) of the Passports Act. Hence, if the police seizes a passport (which it has power to do under Section 102 Criminal Procedure Code), thereafter the police must send it along with a letter to the passport authority clearly stating that the seized passport deserves to be impounded for one of the reasons mentioned in Section 10(3) of the Act. It is thereafter the passport authority to decide whether to impound the passport or not. Since impounding of a passport has civil consequences, the passport authority must give an opportunity of hearing to the person concerned before impounding his passport. It is well settled that any opportunity of hearing to a party vide State of Orissa v. Binapani Dei AIR 1967 SC 1269. The trial Court cannot impound a passport. No doubt,Section 104 Criminal Procedure Code states that the Court may, if it thinks fit, impound any document or thing produced before it but this provision will only enable the Court to impound any document or thing other than a passport as impounding a “passport” is provided for in Section 10(3) of the Passports Act. It is a settled law that the special law prevails over the general law. The Passports Act is a special law while the Criminal Procedure Code is a general law. Hence, impounding of a passport cannot be done by the Court under Section 104 Criminal Procedure Code though it can impound any other document or thing.

Adv. Nitish Banka

The Importance of Statement of Witnesses in 498a Acquittal.

When Police investigates 498a cases. The Statements of all the witnesses are important and it gets recorded under 161 CrPC and becomes part of chargesheet.

CrPC 161 says:

 Examination of witnesses by police.(1) Any police officer making an investigation under this Chapter, or any police officer not below such rank as the State Government may, by general or special order, prescribe in this behalf, acting on the requisition of such officer, may examine orally any person supposed to be acquainted with the facts and circumstances of the case.(2) Such person shall be bound to answer truly all questions relating to such case put to him by such officer, other than questions the answers to which would have a tendency to expose him to a criminal charge or to a penalty or forfeiture.(3) The police officer may reduce into writing any statement made to him in the course of an examination under this section; and if he does so, he shall make a separate and true record of the statement of each such person whose statement he records.

161 CrPC and Acquittal

Now the importance of 161 CrPC is that it can be used for contradiction. When police witnesses come too the court for Statements under Oath.

Now there are two ways to show contradiction

The portion of statement which is about to use for contradiction first brought to the notice of witness, and should be questioned about it. If the witness admits that he made said statements before police then no further proof is needed. But if witness denies that he made confronting statements that he did not make before police then, comes the role of contradiction, court is bound to note the said statements and give exhibit number. By that process contradiction merely brought on record but those are subject to proof. It is said to be proved if investigating officer who recorded statement is confronted with the said statement asking whether witness stated about passage beofre him or not. If he gives affirmative answer, then the said contradiction said to be proved. In a case reported in AIR 1958 Bom 225, Syyed Husan Vs State, their lordship held that the correct way and the proper way of proving a contradiction or omission is to ask the investigating officer (SI) about it in his evidence, as to whether a certain statement was made before him by a witness. If such a procedure is not adopted, it cannot be said that there was proof that in fact the statement concerned was not made by the witness. It is for the trial judge to decide in each case, after comparing the part or parts of the statement recordedby the police with that made in the witness box, to give a ruling having regard to the aforesaid principles whether the recital intended to be used for contradiction satisfies the requirements of law.

How to Fight False 498a-Get out of it Fast

How to Fight False 498a-A complete Guide

498a is filed by wife just to harass you.

False 498a cases are very common in the society and lot of steps has been taken by Hon’ble Apex court also to prevent its misuse. Quashing of false 498a is possible but first you need to know the reason for false 498a

These days false 498a cases gropes all the relatives father, mother sister who may be staying away from the matrimonial home still they become party to 498a.

Here are the reasons wife has filed false 498a cases on your family.

Image result for false 498a


Your wife may be after your money wants to harass you and your family in false 498a cases. Because mental harassment can cause you settle at a very handsome amount.

2.You refused to give her divorce

If you have refused to give him/her divorce then you may definitely face proceedings under false 498a and 406 and now 377 IPC are common.

 3. Pressure from her relatives

Matrimonial discords are common in marriages sometimes relatives make it a bigger issue. Negative relatives can lead to false 498a cases.

4. She has an affair

if wife having an affair somewhere else and you got to know then also wife can put these  false cases for only reason called harassment so that you may not be able prosecute her for adultery.

What happens in false 498a cases

Police calls in false 498a cases

You receive a call from the police station and on the other line there is an Investigating officer is on the  other side of the line.For one moment panic strikes you and you come to know that your wife has lodged a false 498a case against you and your family.

The Io asks you to visit police station so called CAW cell.

When you go and visit CAW cell harassment starts poring in the IO and other mediators starts pressurizing you to settle the matter. You gain strength and refuse to settle the matter and comes back to your home.

Then again you receive the call from the CAW cell to come and join then again then again….

Reasons for harrasment

These calls from CAW cell are against the law and just meant to harass you. Even if you join the mediation  process and attend N number of dates present defence evidence to the IO. Still the CAW complaint gets converted into FIR and these calls fails to stop…

The reason for such calls is done with clear motive of harassment and put pressure to settle the issue with estranged wife and if you fail to settle then FIR is converted.

How to deal with police harassment.

As per the Delhi High Court Judgement they have prescribed certain guidelines which is envisaged under Section 41A of CrPC that a written notice with prescribed format has to be sent to the accused while summoning him to appear before IO. So if IO calls the accused i.e husband and relatives of the husband by making a mobile call that is impermissible as per law.

Anticipatory bail in 498a

Anticipatory bail in 498a is advisable and recommended

A family comes under pressure when they come to know that a FIR under section 498a has been lodged in police station.

The first cause of stress is call be Investigating Officer to join investigation to old parents, husband, husband sister or brother.

The trauma is whether they can be arrested or not.

It is not advisable to visit investigating officer without protection from the court this protection is termed as Anticipatory Bail.

The process of getting Anticipatory Bail in 498a

The chances of getting bail under 498a is quite high as I have already discussed in detail in one of my articles

chances of getting anticipatory bail 

The conditions of anticipatory bail are not very stringent but if they are stringent it can always be challenged. I have discussed in detail the conditions Conditional Anticipatory Bail

Now as per the judgement of 498a under Rajesh Sharma versus State of Uttar Pradesh. there is a stay on automatic arrest in the cases of 498a. But this judgement is challenge in higher bench and revisit the judgement.

Judgement on 41A by Delhi High Court

(i) Police officers should be mandatorily required to issue notices under Section 41A Cr.P.C (in the prescribed format) formally to be served in the manner and in accordance with the terms of the provisions contained in Chapter VI of the Code. Model…

Dismissal of false 498a cases(Quashing)

Quash false  -Vague allegations in Fir

Quash false 498a -Vague allegations in Fir The case of 498a can be quashed when there are vague the allegations in the FIR. A FIR is a first document on which whole investigation and chargesheet is based.

Stages of 498a

Chargesheet Stage in 498a and Framing of charge as well as Discharge.

After completion of investigation police will file charge sheet at this stage evidence of the police has to be seen. If there is no evidence or contradictory evidence then you can seek discharge.

Argument on discharge is an important stage in fighting false 498a.

If there is no statements of witnesses or no medical evidence then you may argue on discharge.

Prosecution Evidence and Defence Evidence as well as Cross examination

Evidence-based prosecution’ (sometimes termed “victimless prosecution”) refers to a collection of techniques utilized by prosecutors in domestic violence cases to convict abusers without the cooperation of an alleged victim. It is widely practiced within the American legal system by specialized prosecutors and state’s attorneys and relies on utilizing a variety of evidence to prove the guilt of an abuser with limited or adverse participation by the abuser’s victim, or even no participation at all.

Cross-examination of a person called to produce a document (S. 139):

A person summoned to produce a document does not become a witness, by the mere fact that he produces it, and cannot be cross-examined, unless and until he is called as a witness.

A witness summoned merely to produce a document does not become a witness for purposes of cross-examination, since he may either attend the Court personally or may even depute any person to produce the document in Court.

A witness may be cross-examined as to previous statements made by him in writing (or reduced into writing), and relevant to matters in question, without such writing being shown to him, or being proved. However, if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him.

Final Arguments and Judgement Stage

concluding statement of each party’s counsel reiterating the important arguments for the trier of fact, often the jury, in a court case. A closing argument occurs after the presentation of evidence. A closing argument may not contain any new information and may only use evidence introduced at trial. It is not customary to raise objections during closing arguments, except for egregious behavior.[1] However, such objections, when made, can prove critical later in order to preserve appellate issues.

What can I do against wife after I get acquittal in false 498a case?झूठे 498a मामले में बरी होने के बाद मैं पत्नी के खिलाफ क्या कर सकता हूं?

Whenever a false case is filed against the husband and his family members. All the family members and the husband suffer for many Years in litigating in courts which only brings harrasment to the husband and the family members.

What is the solution after getting Acquittal or discharge in false 498a case?

If the case ends up in either bdischarge or acquittal in false 498a. What the husband family can do against wife/complainant this comes into mind in every harassed family.

Here comes two sections of the IPC to help you, one is IPC 182 and 211 IPC.

Sec. 182 prescribes a punishment for six months and fine in case any person gives false information to a public servant, on the basis of which the public servant takes certain action which he might not have taken if he had known the true state of facts. On the other hand, u/s 211, there is an ono use of the term ‘public servant’. As per this provision, any person who institutes or causes to be instituted any criminal proceedings against a person to cause him injury, knowing that the complaint and allegations are false, is liable to face imprisonment for a period which may extend to two years. Further, if the charge alleged discloses an offence which is punishable by death, or a minimum imprisonment for seven years, is punishable with imprisonment for a maximum period of 7 years.

Procedure for initiating Criminal Action?

In the cases of 182 IPC in which the false information is given to police. Then in that case that police office can write a complaint and forward it to concerned senior officer. Who than forward a formal complaint to the court which than initiate proceedings under 182 IPC

In the cases of 211 wherein the case is already pending against the accused person in court. Than in that case the court in which trial was running A application under section 340 CrPC is filed and then court initiates further action under 211 IPC.


Initiating proceedings under 211 IPC and 182 IPC will put pressure on the other side and will help in fighting and solving matrimonial issues by way of informal settlement.

If You are convicted for any offence use this..Probation of offenders Act-1958

Prohibition Of Offenders Act 1958

  1. This Act was made in the result of the recommendations of the jail committee the government of India decided to have a comprehensive legislation on probation law in India.
  2. This Act also provide the special relief to the offender under 21 years of age.
  3. In this Act under section 3 of this act any person who found guilty of committed an offence punishable under section 379(Punishment of Theft), 380(Theft in dwelling house),381(Theft by Clerk or servant of property in possession of master) or section 404(Dishonest misappropriation of property possessed by deceased person at the time of his death),420(cheating and dishonestly including delivery of property) of Indian Penal Code.   The Act provides the freedom to Court to vary the conditions of bond when an offender is released on probation of good conduct and to extend the period of probation not to exceed three years from the date of original order.    
  4. There is also mentioned under the section 6 of this Act that any person who is under 21 years old get relief under this section where the person is not committing any petty offence and the term is IMPRIOSNMENT FOR LIFE   is not used.





SB Criminal Revision Petition No. 88/1999

Durga Prasad Jain versus State of Rajasthan 



Vide separate order on the point of sentence, convict is benefit of Probation is granted to the convict u/sec. 4 of Probation of Offender’s Act subject to his furnishing bond of good behaviour and maintaining peace, for sum of Rs.30,000/­ with one surety in the like amount for the period of two years. No order as to fine. Further Rs.1,10,000/­(Rupees One lac ten thousand) as compensation is awarded in faovur of the complainant which has to be paid within one month failing which he shall under go simple imprisonment for 2 years and compensation shall be recovered as revenue of State.

Convict is directed to appear before Probation Officer at least once in every two months or as and when directed. He is also directed to maintain peace and be of good behaviour during probation period. Convict furnished personal bond, same are accepted. Copy of judgment and order on the point of sentence be given to the convict free of cost. File be consigned to record room after all necessary compliance.

How to get Your Money Stuck in Builder Flats Fast? Approach NCLT The Recent Trend.

This the best way to get your hard earned money stuck in Builder Projects Fast..

Approach NCLT

Under the recent Insolvency and Bankruptcy code the common Home buyers are also Financial Creditors under the new amend in the Insolvency and Bankruptcy code.

Even one homebuyer can drag an errant builder into the National Company Law Tribunal (NCLT)

The Recent Case of Granite Gate Properties…

The National Company Law Tribunal (NCLT) gave nod to start insolvency proceedings against NCR-based real estate firm Granite Gate Properties, after homebuyers complained about the firm’s inability to complete the project. 

Admitting the plea of three homebuyers, a two-member bench headed by NCLT President Justice M M Kumar allowed the insolvency plea against Granite Gate Properties, which is developing housing project Lotus Panache in Noida. 

The Objective is to Settle Fast…

What happened in Granite Gate is unfortunate. The whole object is to approach NCLT and settle the matter before the insolvency. Because builder cannot afford to go into insolvency due to one home buyer.

Watch This Video

NCLT-A new and Fast way

Advocate Nitish Banka

[email protected] 9891549997 or Watsapp

Expert in Builder Disputes

How to prosecute Wife for giving false evidence in court?(340 Crpc)

Section 340 Crpc deals with the procedure adopted by the court to punish those person who leads false evidence on material facts.

In matrimonial cases generally it has been observed that wife gives false evidence to prosecute the husband and in cases such as 498a it is observed that wife generally use every means to harass the victims of 498a i.e the husband side.

So here are some of the successful cases which were initiated by husband side to prosecute their wives for giving false evidence in the court.

Smt. Veena vs Jagdish Parshad 

In her testimony, recorded on 12.02.04, Veena testified that she was not working anywhere after her marriage. She was not working till that day anywhere from the date, when she was kicked out of her matrimonial home. She entered the witness box on 07.04.04 for her cross­ examination, wherein she testified that since after coming to her parental home, she was not doing any job. She was having one bank account in Co­operative Bank. She denied the suggestion that she worked with ­4­ Tirath Ram Charitable Hospital, Rajpur Road, Delhi. She further denied the suggestion that she was holding bank account No. 4277991 in Punjab National Bank. She was further cross­examined on 06.05.04, wherein she denied that she was earning sufficiently to maintain herself. When respondent was given an opportunity to rebut facts, he could bring it over the record that she worked with Tirath Ram Hospital from 01.06.01 till 10.06.02. It was further proved that she was maintaining a bank account at Punjab National Bank, wherein her salary from the said hospital was being encashed. When these facts came over record, respondent moved an application under section 340 of the Code before the Trial Court to get her prosecuted. Trial Court had not conducted an inquiry, as contemplated by section 340 of the Code, but recorded findings against the appellant, vide order dated 09.09.05 detailing therein that she committed an offence punishable under section 193 of the Penal Code.

Image result for 340 crpc

At the conclusion of inquiry, the Court has to give finding after application of its mind that it is expedient in the interest of justice to file a complaint under section 195 of the Code and only thereafter complaint would be legal. Opinion or satisfaction contemplated under section 340 of the Code is objective and not subjective one and should be reflected in findings recorded or order passed by the Court. Section 340 of the Code specifically enjoins that Court “shall record findings to that effect”, which means that it is expedient in the interest of justice that inquiry should be made. Provision is not merely peremptory, but mandatory and it is a condition precedent for preferring a complaint before the Magistrate. The phrase that “it is expedient in the interest of justice that an enquiry should be made” is the keynote of the section to initiate an action. Law to this effect was laid in Arul Raj (1996 Cr.L.J. 2712) and Nimmayankula Audi Narayannya (AIR 1970 AP 119).

Advocate Nitish Banka

[email protected]