The Charge : Sections 211-224 and 464 of CrPC

What is Charge?

Charge is a first notice to accused of his offence, it should convey to him in sufficient clearness and certainty what the prosecution intends to prove and which case the accused is to meet. The charge sheet corresponds to indictment under English Law.

Section 2(b) of the Code of Criminal Procedure (in short crpc) defines a charge as including any head of charge, when the charge contains more than one. However the Code of Criminal Procedure does not define what a charge is. In law a charge may be define as a precise formulation of a specific accusation made against a person of an offence alleged to have been committed by him.

Purpose and Object

The purpose of a charge is to tell the accused, as precisely and concisely as possible, about the matter with which he is charged and the object of a charge is to warn the accused of the case which he has to answer. The forms in which the charges may be framed are set forth in Second Schedule of the Code of Criminal Procedure.

The Legal Provisions

The provisions regarding charge are contained in Sections 211 to 224 and 464 of the crpc. Sections 211 to 214 of crpc deals with what a charge should contain. Section 211 of the crpc lays down that every charge shall contain the following particulars:-

(1) The offence with which the accused is charged.

(2) If the law which creats the offence gives it, any specific name, the offence may be described in the charge by that name.

(3) If the law which creats the offence does not give it any specific name, so much of the definition of the offence must be stated as to give the acused notice of the matter with which he is charged.

(4) The law and the section of the law against which the offence is said to have been committed shall be mentioned in the charge.

(5) The fact that charge is made is equivalent to statement that every legal condition required by law to constitute the offence charged was fulfilled in the particular case.

(6) The charge shall be written in the language of the court.

(7) If the accused having been previously convicted of any offence is liable, by reason of such previous conviction to enhanced punishment or to punishment of a different kind, for a subsequent offence and it is intended to prove such previous conviction for the purpose of affecting the punishment, which the court may think fit to award for the subsequent offence the fact, date and place of the previous conviction shall be stated in the charge; and if such statement has been omitted, the court may add it at any time before sentence is passed.

Section 212, crpc then provides that the charge must contain such particulars as to the time and place of the alleged offence, and the person, if any against whom, or the thing if any, in respect of which, the offence was committed as are reasonably sufficient to give to the accused notice of the matter with which he is charged.
According to Section 212(2), crpc when the charge is of criminal breach of trust or criminal misappropriation of money, it shall be sufficient to specify
(a) the gross sum in respect of which the offence is committed;
(b) the dates between which it is committed provided the time between the first and the last date shall not exceed one year.

Section 213, crpc lays down that if the nature of the case is such that the particulars mentioned in Sections 211 and 212 of crpc do not give to the accused sufficient notice of the matter with which he is charged, the charge must also mention such particulars of the manner in which the alleged offence was committed as would be sufficient for that purpose. e.g. A is accused of cheating B at a given time and place. The charge must set out the manner in which A cheated B.

Effect of a defective charge

The matter have been provided in Sections 215 and 464 of the Code of Criminal Procedure. The two sections read together lay down that whatever the irregularity in framing of a charge, it is not fatal unless there is prejudice caused to the accused. The mere omission to frame a charge or a mere defect in the charge is no ground for setting aside a conviction. Procedural laws are designed to subserve the ends of justice and not to frustrate them by mere technicalities. The object of the charge is to give an accused notice of the matter he is charged with. If the necessary information is conveyed to him and no prejudice is caused to him because of the charges, the accused cannot succeed by merely showing that the charges framed were defective. Nor could a conviction recorded on charges under wrong provisions be reversed if the accused was informed of the details of the offence committed and thus no prejudice was caused to him.

The court may alter or add to any charge at any time before the judgment is pronounced (sections 216 and 217, crpc). But if a person has been charged the court cannot drop it. He has either to be convicted or acquitted.





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Dispute regarding possession of immovable property : Section 145, 146 crpc.

Disputes over land and water, crops and other produce of land and rights of user in respect of immovable property often result in breach of the peace, violence and bloodshed. Sections 145 and  146 of the Code of Criminal Procedure (in short crpc) together constitute a scheme for the resolution of a situation where there is likelihood of a breach of the peace because of a dispute concerning any land or water or their boundaries.

Sub-section (1) of Section 145 of crpc reads as: - Whenever an Executive Magistrate is satisfied from a report of a police officer or upon other information that a dispute likely to cause a breach of the peace exists concerning any land or water or the boundaries thereof, within his local jurisdiction, he shall make an order in writing, stating the grounds of his being so satisfied, and requiring the parties concerned in such dispute to attend his Court in person or by pleader, on a specified date and time, and to put in written statements of their respective claims as respects the fact of actual possession of the subject of dispute.

Further Sub-section (2) of Section 145, crpc says- For the purpose of this section, the expression “land or water” includes buildings, markets, fisheries, crops or other produce of land, and the rents or profits of any such property.

In order to take preventive action under Section 145 two essential conditions must be satisfied, 

(i) there must be dispute relating to land or other objects mentioned in Subsection (1); and

(ii) the dispute is likely to cause a breach of peace.

The Magistrate exercising jurisdiction under Section 145, crpc must be satisfied about these two conditions either from a police report or from any other information which would include an application by the dispossessed person.

On being satisfied about the existence of a dispute likely to cause a breach of peace, the Magistrate issues a preliminary order stating the grounds of his satisfaction and calling upon the parties to appear before him and submit their written statement.

On perusal of the written statements he would proceed to record evidence to decide which of the parties was in possession on the date of the preliminary order. If he decides that- 

(i) one of the parties was in possession he declares possession of such party;

(ii) if on the other hand he is unable to decide who was in possession, or

(iii) if he is of opinion that none of the parties was in such possession, he may say so.

If he decides that one of the parties was in possession he declares the possession of such property. In the other two situations he attaches the property. Thus a proceeding began with a preliminary order followed up by an enquiry and end with the Magistrate deciding in one of three ways and making consequential orders.

The Magistrate may, however, stop the proceedings at any time if one or the other of the parties satisfies him that there has never been or that there is no longer any dispute likely to cause a breach of the peace. The Magistrate then cancels the preliminary order vide Section 145(5), crpc except in this event a proceeding initiated by a preliminary order under Section 145(1) must run its full course.

Whether a composite order of attachment of disputed property under Section 146, crpc can be passed by the Magistrate while passing the preliminary order under Section 145(1), crpc?

A Magistrate who wants to pass an order under Section 146(1), crpc has at first to pass an order under Section 145(1), crpc in order to assume jurisdiction to attach the property under Section 146(1), crpc. There is nothing in the said two sections or in the Code of Criminal Procedure to prevent a Magistrate to pass the said orders in the same strain and in the same sitting, the order under Section 146(1) just following the order under Section 145(1) of the code.

A Magistrate can pass a composite order of attachment on disputed property under Section 146(1) while passing the preliminary order under Section 145(1), crpc. But such an order is only valid in the following circumstances 

(i) the order under Section 145(1) should be separately drawn than the order under Section 146(1), crpc,

(ii) that the order under Section 145(1) must precede order under Section 146(1) crpc,

(iii) it must be borne out from both the orders that they satisfy separately the existence of the conditions for drawing such orders under the two sections.

Did you know?

The proceeding under Section 107, crpc are for public peace and tranquility whereas those under Section 145, crpc relate to dispute regarding possession between parties concerning any land or water or boundaries thereof. 

There is no bar to filing criminal proceedings under Section 145, crpc over the same disputed immovable property for which civil proceedings are pending. The jurisdiction of the Magistrate under Sections 145 and 146, crpc to maintain peace will prevails over the orders of the civil court except where

(i) the determination of rights by the civil court has become final, or

(ii) the civil court has appointed a receiver.

An order made under Section 145, crpc deals only with the factum of possession of the party as on a particular day. It confers no title to remain in possession of the disputed property. The order is subject to decision of the civil court. The unsuccessful party therefore must get relief only in the civil court. He may move the civil court with properly constituted suit. He may file a suit for declaration and prove a better right to possession. The civil court has jurisdiction to give a finding different from that which the Magistrate has reached.  

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Proclamation and Attachment of Property of Person Absconding : Section 82 and 83 of CrPC

Normally any accused person whose presence is required by Court is to be at first instance called upon by summons. Sub section (1) of Section 204 of the Code of Criminal Procedure (in short CrPC) reads as follows- If in the opinion of a Magistrate taking cognizance of an offence there is sufficient ground for proceeding, and the case appears to be

(a) a summons case, he shall issue his summons for the attendance of the accused, or 

(b) a warrant case, he may issue a warrant, or, if he thinks fit, a summons, for causing the accused to be brought or to appear at a certain time before such Magistrate or ( if he has no jurisdiction himself) some other Magistrate having jurisdiction.

Further sub section (5) of Section 204 CrPC says- Nothing in this section shall be deemed to affect the provisions of section 87. 

     

Section 87 of the Code of Criminal Procedure empowers a Court to issue warrant in lieu of, or in addition to, summons. It can be exercised in two cases

(a) where the Court believes that the person summoned, either before or after the issue of summons, has absconded or will disobey the summons, or 

(b) where he has without reasonable cause failed to appear. The recording of reasons by the Court is a condition precedent to the exercise of the power.

The other processes to compel the appearance of persons before the criminal courts are

(i) Proclamation as absconder, where a warrant fails to take effect; 

(ii) Attachment and sale of property, if the absconder is not forthcoming;

(iii) Taking of bond with or without sureties.

Proclamation for person absconding.- 

Section 82, CrPC provides as to when and how proclamation can be issued for an absconding person. If any court had reason to believe that any person against whom a warrant had been issued by it, had absconded or was concealing himself so that such warrant could not be executed, such Court may publish a written proclamation requiring, him to appear at specified place and at specified time not less than thirty days from date of publishing such proclamation. 

  

Sub section (2) of Section 82, CrPC says – the proclamation shall be published as follows 

(i) (a) it shall be publicly read in some conspicuous place of the town or village in which such person ordinarily resides; 

(b) it shall be affixed to some conspicuous part of the house or homestead in which such person ordinarily resides or to some conspicuous place of such town or village; 

(c) a copy thereof shall be affixed to some conspicuous part of the Court-house;

(ii) the Court may also, if it thinks fit, direct a copy of the proclamation to be published in a daily newspaper circulating in the place in which such person ordinarily resides.

Every person who is not immediately available cannot be characterized as an absconder. The Court has to record its satisfaction that the accused has absconded or is concealing in order to avoid execution of the warrant. The provision of Section 82 requires that the Court must in the instance, issue a warrant and it must put down its reason for believing that the accused is absconding or concealing himself.

Attachment of property of person absconding -

The property of the person against whom a proclamation is issued under Section 82, CrPC can be attached in order to compel his appearance in court. This has been provided by Section 83. 

According to Section 83, CrPC the Court issuing proclamation under section 82 may, for reasons to be recorded in writing, at any time after the issue of the proclamation, order the attachment of any property, movable or immovable, or both, belonging to the proclaimed person:

Provided that where at the time of the issue of the proclamation the Court is satisfied, by affidavit or otherwise, that the person in relation to whom the proclamation is to be issued,-

(a) is about to dispose of the whole or any part of his property, or 

(b) is about to remove the whole or any part of his property from the local jurisdiction of the Court,

 it may order the attachment simultaneously with the issue of the proclamation.

The object of Section 83 CrPC is to penalize a person who seeks to avoid his arrest under warrant and against whom a proclamation is issued under Section 82, for disobedience of the proclamation, he incurs liability to be punished under Section 174 and 174 A of the Indian Penal Code.

The procedure laid down under Section 83 CrPC has to be followed strictly. Jurisdiction to pass an attachment order cannot be assumed unless a proclamation under Section 82 has been issued. The normal rule is to wait until expiry of thirty days to enable the accused to appear in terms of the proclamation which is to be computed from the date of publication of proclamation and the provisions in this respect are mandatory.

Section 88, CrPC empowers the Court to take bond for appearance. When any person for whose appearance or arrest the officer presiding in any court is empowered to issue a summons or warrant, is present in such court, such officer may require such person to execute a bond, with or without sureties, for his appearance in such court, or any other court to which the case may be transferred for trail.


Remedy available to an aggrieved person-

The following four remedies are available to an aggrieved person
(i) Remedy by way of a claim or objection under Section 84, CrPC
(ii) Remedy by way of civil suit to establish a claim (Section 84, CrPC)
(iii) An appeal under Section 86, CrPC
(iv) Under certain circumstance, a revision application under Section 397, CrPC.

Quiz Corner

(i) A proclamation requiring a person to appear must be published giving
(a) not less than 30 days time to the person concerned
(b) not less than 10 days time to the person concerned
(c) not less than 20 days time to the person concerned
(d) not less than 15 days time to the person concerned.

(ii) Attachment of the property of the person absconding
(a) can only be issued after publication of the proclamation under section 82 of crpc
(b) can be issued before publication of the proclamation under section 82 of crpc
(c) can be issued simultaneously with the issue of proclamation under section 82 of crpc
(d) all of the above.

(iii) If the person proclaimed appears within the period specified in the proclamation, the property attached
(a) shall not be released from attachment
(b) shall be released from attachment
(c) shall be forfeited
(d) both (a) & (c).

(iv) If the proclaimed person does not appear within the time specified in the proclamation, the property under attachment

(a) shall not be sold untill expiry of six months from the date of attachment

(b) shall not be sold untill any claim or objection under section 84 of crpc have been disposed of

(c) both (a) & (b)

(d) none of the above.

(v) Period of limitation for filing claims and objections to the attachment of any property attached under section 83 of crpc, by any person other than the proclaimed person, as provided under section 84 of crpc
(a) within three months of attachment
(b) within six months of attachment
(c) within one year of attachment
(d) within two months of attachment.

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Release of Land From Acquisition : Section 48 of the Land Acquisition Act, 1894

Section 48 of the Land Acquisition Act, 1894 empowers the Government to withdraw from the acquisition of the land provided possession has not been taken. The said power is given to the government by a statutory provision and is not restricted by any condition except that such power must be exercised before possession is taken. The statutory provision contained in Section 48 does not provide for any particular procedure for withdrawal from acquisition.

Section 48 in the Land Acquisition Act, 1894 reads as follows: - 48 Completion of acquisition not compulsory, but compensation to be awarded when not completed.

(1) Except in the case provided for in Section 36, the government shall be at liberty to withdraw from the acquisition of any land of which possession has not been taken.

(2) Whenever the government withdraws from any such acquisition, the collector shall determine the amount of compensation due for the damage suffered by the owner in consequence of the notice or of any proceedings thereunder, and shall pay such amount to the person interested, together with all costs reasonably incurred by him in the prosecution of the proceedings under this Act relating to the said land.

(3) The provision of Part iii of this Act shall apply, so far as may be, to the determination of the compensation payable under this Section.

Further Section 36 of the Land Acquisition Act reads as follows: - 36 Power to enter and take possession, and compensation on restoration. 

(1) On payment of such compensation, or on executing such agreement, or on making a reference under Section 35, the Collector may enter upon and take possession of the land, and use, or permit the use thereof in accordance with the terms of the said notice. 

(2) On the expiration of the term, the Collector shall make or tender to the persons interested compensation for the damage, if any, done to the land and not provided for by the agreement, and shall restore the land to the persons interested therein, provided that, if the land has become permanently unfit to be used for the purpose for which it was used immediately before the commencement of such term, and if the persons interested shall so require the appropriate government shall proceed under this Act to acquire the land as if it was needed permanently for a public purpose or for a company.

A plain reading of the Section 48 of the Land Acquisition Act, 1894 demonstrates that an absolute discretion is vested in the State Government in so far as, the release of land from acquisition is concerned. Moreover, the exercise of discretion vested in government is subject to the condition that the possession of the land in question has not been taken.

The normal mode of taking possession is drafting the Panchanama in the presence of Panchas and taking possession and giving delivery to the beneficiaries is the accepted mode of taking possession of the land.

Once the possession of land has been taken no application seeking release of land by the land owner is maintainable ( Swamy Devi Dayal Hospital vs. Union of India, AIR 2014 SC 284 ).

In Mahadeo vs. State of UP, (2013) 4 SCC 524 the Supreme Court held that- once land is acquired and mandatory requirements are complied with i.e. land has been acquired after following due process of law and of which possession has been taken, land vests in state free from all encumbrances, even if some unutilized land remains, it cannot be reconveyed or reassigned to erstwhile owner.

The brief fact of the case is that- the land was acquired for purpose of expansion of city and major portion of land was already utilized by Authority- merely because some land was left vacant at relevant time that does not give any right to Authority to send proposal to government for release of land in favour of land owners.

The impugned orders passed by High Court directing Authority to press resolution dated 17-09-1997 whereunder decision was taken to withdraw acquisition of land except land for which compensation was paid, unsustainable. Hence Mandamus issued to this effect by High Court is quashed by the Apex Court.

It is true that a landowner whose land has been acquired for public purpose by following the prescribed procedure cannot claim as a matter of right for release of his/her land from acquisition but where the State Government exercises its power under Section 48(1) of the Land Acquisition Act for withdrawal from acquisition in respect of a particular land, the landowners who are similarly situated have right of similar treatment by the State Government.

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'Defamation' under Indian Penal Code

‘Defamation’ may be a criminal or civil charge. It encompasses both written statements, known as libel, and spoken statements, called slander.

The criminal law on defamation has been codified under chapter 21 of the Indian Penal Code (in short IPC) and is containing in Sections 499 to 502 of the IPC.

Section 499 of the IPC defines ‘defamation’ whereas Section 500, IPC is the Penal Section for defamation which reads as ‘whoever defames another shall be punished with simple imprisonment for a term which may extend to two years or with fine or with both’. In order to justify a charge under Section 500 of IPC, it is required that the allegations satisfy requirement of Section 499, IPC as also the explanations appended thereto.

The offence of ‘defamation’ as defined by Section 499 of the Indian Penal Code reads as follows: - whoever, by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person, is said, except in the cases hereinafter expected, to defame that person.

Essential Ingredients of ‘defamation’: -

There are three main ingredients of the offence of defamation

(i) making or publishing any imputation concerning any person; 

(ii) such imputation must have been made by- 

(a) words, either spoken or intended to be read; or 

(b) signs; or 

(c) visible representations. 

(iii) such imputation must be made with the intention of harming or with the knowledge or with reasons to believe that it will harm the reputation of that person.

It is clear that the means rea to cause harm is the most essential sine qua non for an offence under Section 499 of the Indian Penal Code. To constitute ‘defamation’ under Section 499 of the Code, there must be an imputation and such imputation must have been made with intention of having or knowing or having reason to believe that it will harm the reputation of the person about whom it is made. In essence, the offence of defamation is the harm caused to the reputation of a person. It would be sufficient to show that the accused intended or knew or had reason to believe that the imputation made by him would harm the reputation of the complainant, irrespective of whether the complainant actually suffered directly or indirectly from the imputation alleged.

In respect of the offence of defamation, Section 199 of the Code of Criminal Procedure mandates that the Magistrate can take Cognizance of the offence only upon receiving a complaint by a person who is aggrieved. Section 199 of the Cr PC  laid down an exception to the general rule that a criminal complaint can be filed by anyone irrespective of whether he is an ‘aggrieved person’ or not.

If the facts which are the subject of a complaint fall within the limits of the definition in Section 499, IPC construed as the section ought to be, according to the plain meaning of the words therein used, and if they are not covered by any of the exceptions to be found in the Code, then they amount to defamation.

The burden lay upon the accused to show that the statement he had made fell within one or other of the exceptions to Section 499 of IPC, or that he was protected from prosecution by the proviso to Section 132 of the Indian Evidence Act.

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Dishonour of Cheques : Section 138 of the Negotiable Instrument Act, 1881

What is Cheque?

As per Section 6 of the Negotiable Instrument Act, 1881, a ‘cheque’ is a bill of exchange drawn on a specified banker and not expressed to be payable otherwise than on demand and it includes the electronic image of a truncated cheque and a cheque in the electronic form.

Definition of Drawer and Payee

As per Section 7 of the Negotiable Instrument Act, maker of a bill of exchange, a promissory note or cheque is called the ‘drawer’ and the person named in the instrument, to whom or to whose order the money is by the instrument directed to be paid, is called the ‘payee’.

Purpose and Object behind the incorporation of Section 138 of the Negotiable Instrument Act.

The offence under Section 138 of the Negotiable Instrument Act is a statutory offence. This Section excludes mens rea by creating strict liability. It does not say that there should be a direct nexus between the person who commits the act and the offence. The purpose behind the incorporation of Section 138 of the Negotiable Instrument Act is to lend credibility for cheque transactions. The object is to inculcate faith in the efficacy of banking operations and credibility in transacting business on negotiable instruments.

Section 138 of the Negotiable Instrument Act reads as follows: - where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provision of this Act, be punished with imprisonment for a term which may be extended to two years, or with fine which may extend to twice the amount of the cheque, or with both.

Provided that nothing contained in this section shall apply unless - 

(a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier;

(b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within thirty days of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and

(c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or as the case may be, to the holder in due course of the cheque within fifteen days of the receipt of the said notice.

Explanation- ‘debt or other liability’ means a legally enforceable debt or other liability.

Ingredients of Section 138

(i) drawing of the cheque;
(ii) presentation of the cheque to the bank;
(iii) returning the cheque unpaid by the drawee bank;
(iv) giving notice in writing to the drawer of the cheque demanding payment of the cheque amount; and
(v) failure of the drawer to make payment within 15 days of the receipt of the notice.

It is incumbent upon the complainant to establish a case under Section 138 of the Negotiable Instrument Act, that the cheque was dishonoured only for want of funds in the account and not for the other reason. If a cheque is returned on account of any structural defect, that is, any defect in its form, want of signature, date has not been properly written, figure of the amount has been over written or erasures in the drawer's name, etc., the same will not amount to an offence punishable under Section 138 of the Act.

But on November 27, 2012, in M/s Laxmi Dyechem vs. State of Gujarat & Ors, the Apex Court held that where the drawer of the cheque changed his signature with a fraudulent intention that such change in signature would result in dishonour of cheque, in such situation mismatch of signature of drawer on cheque with the specimen signatures would constitute dishonour within the meaning of Section 138 of the Act subject to the condition that the drawer fails to make payment within the stipulated time despite receiving statutory notice under Section 138 of the Act.   

Liability of a Company under Section 138

Section 141 of the Negotiable Instrument Act lays down the liability of a company and its officers for an offence under Section 138 of the Act.

Section 141 of the Negotiable Instrument Act reads as follows: - (1) If the person committing an offence under Section 138 is a company, every person who, at the time the offence was committed, was incharge of, and was responsible to the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of he offence and shall be liable to be proceeded against and punished accordingly.

The proviso of Section 141(1) lays down that no such person can be so held liable if he proves that the offence was committed without his knowledge, or that he had exercised all due diligence to prevent the commission of such offence.

 The second proviso of Section 141(1) further lays down that where a person is nominated as a Director of a company by virtue of his holding any office or employment in the Central Government or the State Government, as the case may be, he shall not be held liable.

Sub-Section 2 of Section 141 of the Act provides that where any offence under the Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is attributable to, any neglect on the part of, any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly.

Explanation- (a) ‘company’ means any body corporate and includes a firm or other association of individuals; and (b) ‘director’, in relation to a firm, means a partner in the firm.

Who can file complaint; how and when?

The complaint for offence under Section 138 read with Section 142 after the dishonouring of the cheque can be filed either by the payee or the holder thereof. Whether the person is holder thereof is a question of fact and has to be pleaded. The complaint can only be filed in writing by the payee or the holder thereof in due course.

The payee is free to present the cheque repeatedly within its validity period but once notice has been issued and payment not received within 15 days of the receipt of the notice, payee has to avail the very cause of action arising thereupon and file the complaint. Complaint has to be filed within one month from the day immediately following the day on which the period of 15 days from the date of receipt of the first notice by the drawer expires.

No form of notice is prescribed in clause (b) of the proviso to section 138, the requirement is that the notice shall be given in writing within 30 days of receipt of information from the bank regarding return of the cheque as unpaid and in the notice a demand for payment of the amount of the cheque has to be made. If no such demand is made, the notice would fall short of its legal requirement.

Further it is not the giving of the notice but its receipt by the drawer which culminates in the cause of action. It is no doubt true that the receipt of the notice has to be proved, but if the notice is refused by the addressee, it may be presumed to have been served. In a case where notice is not claimed even though sent by registered post, with the aid of Section 27 of the General Clauses Act, the drawer of the cheque may be called upon to rebut the presumption which arises in favour of service of notice.

   

Place where complaint is to be filed

For purposes of Section 178(d) of the Code of Criminal Procedure, where an offence consists of several acts done in different local areas, it may be inquired into or tried by a Court having jurisdiction over any of such local areas.

In Nishant Aggarwal vs. Kailash Kumar Sharma, (2013) 10 SCC 72, the Apex Court observed that if the five different acts namely (i) drawing of the cheque; (ii) presentation of the cheque to the bank; (iii) returning the cheque unpaid by the drawee bank; (iv) giving notice in writing to the drawer of the cheque demanding payment of the cheque amount; and (v) failure of the drawer to make payment within 15 days of the receipt of the notice, which are the components of offence under Section 138 of the Negotiable Instrument Act were done in five different localities, any one of the Courts exercising jurisdiction in one of the five local areas can became the place of trail for the offence under Section 138 of the Act and the complainant would be at liberty to file a complaint at any of those places. In other words, the complainant can choose any one of those Courts having jurisdiction over any one of the local areas within the territorial limits of which any one of those five acts was done.

On 01-08-2014, the Apex Court in Dashrath Rupsingh Rathod vs. State of Maharashtra, (2014) 9 SCC 129 held that the territorial jurisdiction is restricted to Court within whose local jurisdiction offence was committed which is where cheque is dishonoured by bank on which it is drawn and complaint will be maintainable only at place where cheque stands dishonoured. 

But after the Negotiable Instrument (Amendment) Ordinance, 2015 which was published in the Gazette of India on 15th June, 2015 the offence under Section 138 shall be inquired into and tried only by a court within whose local jurisdiction-

(a) if the cheque is delivered for collection through an account, the branch of the bank where the payee or holder in due course, as the case may be, maintains the account, is situated; or

(b) if the cheque is presented for payment by he payee or holder in due course otherwise through an account, the branch of the drawee bank where the drawer maintains the account, is situated.

Explanation- For the purposes of clause (a), where a cheque is delivered for collection at any branch of the bank of the payee or holder in due course, then, the cheque shall be deemed to have been delivered to the branch of the bank in which the payee or holder in due course, as the case may be, maintains the account. 

Offence of dishonour of cheque committed along with other offences in a single transaction- Territorial jurisdiction :-

The relief introduced by Section 138 of the NI Act is in addition to the contemplations in the IPC. It is still open to such a payee recipent of a dishonoured cheque to lodge a First Information Report with the police or file a complaint directly before the concerened Magistrate. All remedies under IPC and CrPC are available to such a payee if he chooses to pursue this course of action, rather than a complaint under Section 138 NI Act. He can also always file a civil suit for recovery wherever the cause of action arises in civil law.

Trail

All offences under the Negotiable Instrument Act are to be tried by a Judicial Magistrate of the first class or by a Metropolitan Magistrate summarily and the provisions of Sections 262 to 265, both inclusive of the Code of Criminal Procedure shall apply to such trails. The trail Court has to look into the following main features, viz., the date of issuing of the cheque, the date of dishonouring of the cheque by the bank, the date of issuing notice, and the date of filing of the complaint in Court; if these facts are borne out from allegations in the complaint, the Court is entitled to take cognizance of the same.

High Court’s power under Section 482 of the Code of Criminal Procedure

The power of quashing criminal proceedings by the High Court should be exercised very stringently and with circumspection. In the cases where the petitioner is able to show to the Court that there was no existing debt or liability at the time of presentation of the cheque for encashment on the basis of the conduct of the complainant or admissions made by the complainant though that may be in other legal proceedings, then in such cases, the proceeding can be terminated and the accused should not be asked to face the trail till it is concluded. 

Further, a complaint filed in a Court under the territorial jurisdiction of High Court of a State, cannot be quashed by the High Court of another State.

Disclaimer: Above content are for general use and information. Consult your Lawyer before acting upon these information.

Partnership under Indian Partnership Act, 1932

A partnership arises from a contract. It is a form of business organization, where two or more persons join together for jointly carrying on some business.

Section 4 of the Indian Partnership Act, 1932 defines partnership as follows: - ‘partnership’ is the relation between persons who have agreed to share the profits of a business carried on by all or any of them acting for all.

Person who have entered into partnership with one another are called individually ‘partner’ and collectively ‘a firm’ and the name under which their business is carried on is called the ‘firm name’.

Essentials of Partnership

(i) there must be an agreement entered into by all the persons concerned; 

(ii) the agreement must be to share the profits of a business; and 

(iii) the business must be carried on by all or any of the persons concerned acting for all i.e. each partner carries on business for himself as principle and also as an agent for the other partners.

Who can be a partner in a firm?
  

In terms of Section 11 of the Indian Contract Act, only such persons as are competent to contract, are of sound mind, major and are not disqualified from contracting by any law in force would be entitled to become partner. This would mean that a lunatic, a minor, a firm or a trust who are not persons competent to contract in the eye of law as such would not be entitled to become partners.

The law however, recognizes partnership firm as a distinct personality only for the purpose of income tax by varieties of specific provision under the Income Tax Act. It is also a separate legal entity under Sales-tax law. Further the agreement by a minor is void but he is capable of accepting benefits. In consonance with this position of law, Section 30(1) of the Indian Partnership Act provides that a minor may not be a partner in a firm but with the consent of all the partners for the time being, he may be admitted to the benefits of partnership.

Since the partnership is ‘agreement’ there must be minimum two partners. The Partnership Act does not put any restrictions on maximum number of partners. However, Section 11 of Companies Act prohibits partnership consisting of more than ten members for banking business and twenty members in other businesses, unless it is registered as company under Companies Act, 1956. In the case of a private company the minimum number is two and the maximum is fifty whereas in the case of a public company the minimum number of members should be seven but there is no limit to the maximum number.

Registration of partnership firm.

The Indian Partnership Act does not make registration of a firm compulsory nor does it impose any penalty for non registration of a firm yet Section 69 of the Partnership Act cut short the capacity of unregistered firm and its partner to sue. This disability is too great compelling force to bring the firm to registration.

The application for registration has to be made in the prescribed form and the same has to be accompanied by the prescribed fee. The application must state the following: -

(i) the firm name;

(ii) the place or principal place of business of the firm;

(iii) the names of any other places where the firm carries on business;

(iv) the date when each partner joined the firm;

(v) the names in full and permanent addresses of the partners; and

(vi) the duration of the firm. However, if no period is fixed in the deed of partnership and no provision is made for its determination the partnership shall be deemed to be a partnership at will.

The statement shall be signed by all the partners, or by their agents specially authorized in this regard. Each person signing the statement shall also verify it in the manner prescribed by Section 58(2) of the Partnership Act.

A firm may be got registered at any time after the creation of partnership. It is not necessary that it should be registered at the time of its formation. Once the registration is made it would continue to be valid in the eyes of law until the same was cancelled. There is no need of fresh registration on the death of a partner or when there is otherwise any change in the constitution of the firm. In such cases, it is sufficient to notify the Registrar about the changes so that he could note the same in the relevant register (Girdharmal vs. Dev Rai, AIR 1963 SC 1587).

The Supreme Court in the judgment in Yasin Khan vs. Shreeram Finance Corporation, AIR 1989 SC 1769, considered a case where there was a change in the partners of the firm and since the corresponding change was not notified to the Registrar and therefore, on the date of suit, the current partners were not shown in the Register of Firms, the Apex Court held that the suit was not maintainable. The relevant test would be whether on the date of the suit, the firm was registered and the names of the partners were shown in the Register of Firms. But in Raptakos Brett & Co. Ltd vs. Ganesh Property, (1998) 7 SCC 184, the Supreme Court has observed that even if the suit is filed by an unregistered partnership firm against a third party and is treated to be incompetent as per Section 69 subsection (2) of the Indian Partnership Act, if pending the suit before a decree is obtained, the plaintiff puts its house in order and gets itself registered, the defect in the earlier filing which even though may result in treating the original suit as still born, would no longer survive if the suit is treated to be deemed to be instituted on the date on which registration is obtained. If such an approach is adopted, no real harm would be caused to either side.  

When a suit has been dismissed on grounds of non-registration, a fresh suit after the registration of the firm is maintainable. The same is not barred as res-judicata as the dismissal of a suit because of non-registration is not a decision of the case on its merits (Malhotra & Co. vs. Ramesh Mistri, AIR 1971 P&H 212).

If a firm is unregistered, a suit by a partner for the rendition of accounts without a prayer for the dissolution of the firm is not maintainable. In Basantlal vs. Chiranjilal, AIR 1968 Pat 96, one partner of an unregistered firm sued the other partner after the dissolution for recovery of money in respect of accounts between them, it was held that such an action was maintainable after the dissolution of the firm.

In Ramesh Kumar Bhalotta vs. Lalit Kumar Bhalotta, AIR 2001 Pat 174, a partner of an unregistered firm filed a suit against the firm claiming declaration of share, proper administration of firm and rendition of the accounts of the firm. The suit was dismissed as barred under Section 69(1) of the Indian Partnership Act.

The same partner subsequently filed another suit praying for the dissolution of the firm, and the accounts of the dissolved firm. It was held that the subsequent suit was maintainable as it was permissible under Section 69(3)(a) and dismissal of the earlier suit was no bar to the present suit. Moreover, the suit was not barred under Order 2, Rule 2 of the CPC; as the cause of action under the two suits was different.

A suit by unregistered firm is not barred by Section 69(2) of the Partnership Act if a Statutory right is being enforced. In M/s Haldiram Bhujiawala vs. M/s Anand Kumar Deepak Kumar, AIR 2000 SC 1287, the Apex Court has observed that a suit for perpetual injunction to restrain the defendant from infringing plaintiff’s trade mark and passing defendant’s goods as those of the plaintiff, and a claim of damages in that regard, is not barred by Section 69(2) of the Act. Such right does not arise out of contract. In such a case there is enforcement of a statutory right arising under the Trade Mark Act.

If the action against a third party is not based on contract but on tort, fraud or any other wrongful act, the same is not hit by Section 69(2) of the Partnership Act and the action for the same is maintainable. Thus when the action relates to wrongful detention of property, the action being founded on tort rather than contract, the same is maintainable. Similarly, a suit for the recovery of the price of goods obtained by fraud is also maintainable as the action in such a case does not arise out of contract.

Disclaimer: - All the contents are for general use and information. Consult your Lawyer before acting upon these information.