Overcoming Criminal inadmissibility

Author: Parminder Singh LL.B, Juris Doctor (Canada)

Can I enter Canada if I am criminally inadmissible?

There are ways of overcoming criminal inadmissibility.

You may be offered a temporary resident permit if:

  • your purpose of travel to Canada is justified; and
  • you do not pose a risk

Family emergencies or business conferences are justified but tourism is normally not justified.

If you are inadmissible for temporary or permanent residence, you may be admissible again if you:

What is Deemed rehabilitated and Eligibility to file a rehabilitation application?

This section gives a summary of the type of offences and length of rehabilitation periods.

Less than 10 year imprisonment:

If you were convicted of an offence outside Canada that, if committed in Canada, would be an indictable offence punishable by a maximum term of imprisonment of less than ten years:

  • You are deemed rehabilitated: at least ten years after completion of the sentence imposed.
  • You are eligible to file a rehabilitation application: five years after completion of the sentence imposed.

Maximum 10 or more imprisonment:

If you were convicted of an offence or you committed an offence outside Canada that, if committed in Canada, would be punishable by a maximum term of imprisonment of ten years or more:

  • You are deemed rehabilitated: you are not deemed rehabilitated and you must file a rehabilitation application
  • You are eligible to file a rehabilitation application: five years after completion of the sentence (if you were convicted) or five years after commission of the offence (if you were charged but not sentenced).

2 or more Summary convictions:

If you were convicted for two or more offences outside Canada that, if committed in Canada, would constitute summary conviction offences:

  • You are deemed rehabilitated: five years after the sentences imposed were      served or to be served.
  • You are eligible to apply for rehabilitation: you need not file a rehabilitation      application after 5 years because you are deemed rehabilitated after 5 years.

What can I do if I want to come to Canada but I am not eligible for rehabilitation?

You may be able to receive a temporary resident permit, if you can show that:

  • your  purpose of travel to Canada is justified; and
  • you do not pose a risk.

This permit would allow you to enter or stay temporarily in Canada.

 

Can a document be excluded from evidence after it has been accepted into evidence

Author: Parminder Singh, LL.B, Juris Doctor (Canada)

OVERVIEW

COMPLAINANT’S DOCUMENT MUST BE ACCEPTED INTO EVIDENCE WITH OR WITHOUT AFFIDAVIT AS PER THE SETTLED LAW IN OVER 10 SUPREME COURT RULINGS.

This is a case where a document was submitted during the evidence phase of a district consumer court trial. The document was admitted into evidence and marked as an exhibit. The document was an expert opinion report of a motor surveyor. At the time of oral arguments and the final stage of the trial, an objection was raised first time with respect to the absence of the affidavit of the complainant’s surveyor. The court disregarded the surveyor report for lack of affidavit. The court also failed to order affidavit of the surveyor reasoning that no document can be submitted at that stage. The complainant’s written arguments follow hereunder on this issue.

The complainant submits that it is settled law that no objection can be raised with respect to mode of proof and admissibility of a document at a later stage after it has been accepted and recorded as an exhibit by the court even if it was accepted with some irregularity. The objection, if any, can be raised only at the time the document was submitted.

Since no objection was raised at any time except at the time of final oral arguments on January 27, 2015, the objection cannot be sustained in light of more than 10 Supreme Court rulings on this issue which follow hereunder.

It is also a settled law that the court has power to request any evidence by affidavit at any time during the pendency of a case, and not only at the stage of evidence. If this court deems it necessary, the complainant can procure the affidavit of the surveyor. However preferably, this court should issue an order to the surveyor as his affidavit is not in complainant’s power and possession.

THE ISSUES

  1. Whether objections as to the admissibility or mode of proof of evidence, oral and documentary, should be decided upon when raised or whether decisions thereon can be deferred to a later stage?
  2. Whether the court has power to order evidence by affidavit at a later stage of a case or only at the stage of evidence?

ISSUE 1

OVER 10 SUPREME COURT RULINGS

Whether objections as to the admissibility or mode of proof of evidence, oral and documentary, should be decided upon when raised or whether decisions thereon can be deferred to a later stage?

1. In order to come to a conclusion as to what the proper answer to the question should be, it is necessary to look at some of the relevant judgments in this field.

2. One of the oldest judgment of the Privy Council in the field is in the case of Jadu Rai v. Bhubotaran Nandy, 16 Indian Appeals 148 = 17 Cal 173/186; wherein it is observed as under:

” I would further add, that I think the practice of admitting evidence and reserving the question of its admissibility for further consideration, is unwise and much to be regretted. If the evidence is once admitted, it is impossible to say what its effect may be on the mind of the person who hears it; and I think it most [187] desirable that the question of admissibility should be finally decided when the objection to questions is taken.”

3. The above precedent has been followed in several cases by various High Courts including High Courts of Madras and Andhra Pradesh. [see (1955) 1 Madras Law Journal 457 (A.Devasikamani Goundar v. Andamuthu Goundar) and AIR 1957 Andhra Pradesh 60 (N.S.Sastri v. N.Lakshmidevamma)

4. The Privy Council in another judgment in the case of Gopal Das v. Sri Thakurji, AIR 1943 PC 83 held that the objection to the mode of proof must be taken before document is marked and not in appeal for first time. Where the objection to be taken is not that the document is in itself inadmissible but that the mode of proof put forward is irregular or insufficient, it is essential that the objection should be taken at the trial before the document is marked as an exhibit and admitted to the record. A party cannot lie by until the case comes before a Court of appeal and then complain for the first time of the mode of proof.

5. In Zaver Chand v. Pukhraj Surana, AIR 1961 SC 1655, a document was tendered which was not properly stamped. Objection was raised as to admissibility thereof. The Court held that the question has to be decided there and then when the document is tendered in evidence. It was further held that once the Court rightly or wrongly decides to admit the document in evidence, the matter is closed so far as the parties are concerned. It was held that the Court has to determine the matter judicially as soon as the document is tendered in evidence and before it is marked as an Exhibit in the case.

6. In the case of R.V.E. Venkatachalam Gounder (supra), the Apex Court ruled as under:

“The objections as to admissibility of documents in evidence may be classified into two classes: (i) an objection that the document which is sought to be proved is itself inadmissible in evidence; and (ii) where the objection does not dispute the admissibility of the document in evidence but is directed towards the mode of proof alleging the same to be irregular or insufficient. In the first case, merely because a document has been marked as “an exhibit”, an objection as to its admissibility is not excluded and is available to be raised even at a later stage or even in appeal or revision. In the latter case, the objection should be taken when the evidence is tendered and once the document has been admitted in evidence and marked as an exhibit, the objection that it should not have been admitted in evidence or that the mode adopted for proving the document is irregular cannot be allowed to be raised at any stage subsequent to the marking of the document as an exhibit. The latter proposition is a rule of fair play. The crucial test is whether an objection, if taken at the appropriate point of time, would have enabled the party tendering the evidence to cure the defect and resort to such mode of proof as would be regular.”

7. In the case of Ram Ratan v. Bajarang Lal, AIR 1978 SC 1393, the Supreme Court observed as under:

34 – “The Court, and of necessity it would be trial court before which the objection is taken about admissibility of document on the ground that it is not duly stamped, has to judicially determine the matter as soon as the document is tendered in evidence and before it is marked as an exhibit in the case and where a document has been inadvertently admitted without the Court applying its mind as to the question of admissibility, the instrument could be said to have been admitted in evidence with a view to attracting S.36.”

8. In the case of Smt.Dayamathi Bai v. K.M.Shaffi, AIR 2004 SC 4082, the Apex Court following its earlier view in R.V.E.Venkatachalam Gounder (supra), Roman Catholic Mission v. State of Madras, AIR 1966 SC 1457 and Gopal Das v. Sri Thakurji (supra) reiterated that the objection to be taken at trial before document is marked as an ‘exhibit’ and admitted to record. In the said judgment, the Supreme Court also referred to Sarkar on Evidence 15th Edition, page 1084; wherein it is stated that if copies of the documents are admitted without objection in the trial Court, no objection to their admissibility can be taken afterwards in the court of appeal.

9. In the case of Sait Tarajee Khimchand v. Yelamarti Satyam, AIR 1971 SC 1865, the Apex Court ruled that mere marking of a document as an exhibit does not dispense with its proof.

10. In the case of Ramanuj Rai v. Dakshineshwar Rai, AIR 1926 Cal. 752, the Court ruled that where there is any objection to the admissibility of an evidence, a final decision on the objection must be recorded before the Court proceeds to judgement.

11. The Bombay High Court Bench in Hemendra Rasiklal Ghia vs Subodh Mody on 16 October, 2008 held that the weight of the aforesaid authorities suggests that the objection to the admissibility of evidence should be raised by the objector and decided by the Court at the earliest opportunity. The same view has been reiterated by the learned single Judges of Bombay High Court in Bharat R. Desai v. Naina M. Bhal (supra) and Durgashankar v. Babubhai (supra).

12. In the case of Bipin Shantilal Panchal (supra) Justice Thomas speaking for the Bench held that-

“When so recast, the practice which can be a better substitute is this: Whenever an objection is raised during evidence-taking stage regarding the admissibility of any material or item of oral evidence the trial court can make a note of such objection and mark the objected document tentatively as an exhibit in the case (or record the objected part of the oral evidence) subject to such objections to be decided at the last stage in the final judgment. If the court finds at the final stage that the objection so raised is sustainable the Judge or Magistrate can keep such evidence excluded from consideration. There is no illegality in adopting such a course. However, if the objection relates to deficiency of stamp duty of a document the Court has to decide the objection before proceeding further. For all other objections the procedure suggested above can be followed.”

13. No person has a vested right in any course of procedure. He has only the right of prosecution or defence in the manner for the time being by or for the Court in which the case is pending, and if, by an Act of Parliament the mode of procedure is altered, he has no other right than to proceed according to the altered mode. [See Blyth v. Blyth, 1966 (1) All E.R. 524 (HL)]. A procedural law should not ordinarily be construed as mandatory, the procedural law is always subservient to and is in aid to justice. Any interpretation which eludes or frustrates the recipient of justice is not to be followed. (see Shreenath and Anr. v. Rajesh and Ors., AIR 1998 SC 1827)

14. Processual law is not to be a tyrant but a servant, not an obstruction but an aid to justice. Procedural prescriptions are the handmaid and not the mistress, a lubricant, not a resistant in the administration of justice as held by the Apex Court in the recent judgment in the case of M/s.R.N.Jadi and Brothers v. Subhashchandra, AIR 2007 SC 2571

15. The Bombay High Court Bench in Hemendra Rasiklal Ghia vs Subodh Mody on 16 October, 2008 held that the Court must always be anxious to do justice and prevent victories by way of technical knock-outs.

ISSUE 2

Whether the court has power to order evidence by affidavit at a later stage of a case or only at the stage of evidence?

16. Under s 3B of the Consumer Protection Act 1986, the consumer court has power to pass interim orders at any time during the pendency of proceedings. Under s. 4(3) this court has power to order evidence by affidavit. The s. 4(1) grants power to this court to summon any witness for examination on oath. As such it is respectfully submitted that this court can accept evidence by affidavit or summon a witness for examination on oath at any time during the pendency of the proceedings.

Consumer protection act 1986

(3B) Where during the pendency of any proceeding before the District Forum, it appears to it necessary, it may pass such interim order as is just and proper in the facts and circumstances of the case.

(4)  For the purposes of this section, the District Forum shall have the same powers as are vested in a civil court under Code of Civil Procedure, 1908 while trying a suit in respect of the following matters, namely:—

(i)   the summoning and enforcing the attendance of any defendant or witness and examining the witness on oath;

(ii)   the discovery and production of any document or other material object producible as evidence;

(iii)  the reception of evidence on affidavits;

(iv)  the requisitioning of the report of the concerned analysis or test from the appropriate laboratory or from any other relevant source;

(v)   issuing  of any commission for the examination of any witness, and

(vi)  any other matter which may be prescribed.

17. Since s. 4 grants powers of a civil judge to consumer court with respect to document discovery and affidavits, the order 19 of the Civil Procedure Code 1908 also applies to this court, which grants powers to this court to order evidence by affidavit or to summon a witness  for examination on oath at any time.

Code of Civil Procedure

ORDER XIX- AFFIDAVITS, any court at any time may order evidence by way of affidavit

  1. Power to order any point to be proved by affidavit— Any Court may at any time for sufficient reason order that any particular fact or facts may be proved by affidavit, or that the affidavit of any witness may be read at the hearing, on such conditions as the Court thinks reasonable : Provided that where it appears to the Court that either party bona fide desires the production of a witness for cross-examination, and that such witness can be produced, an order shall not be made authorizing the evidence of such witness to be given by affidavit

ORDER XIII-PRODUCTION, IMPOUNDING AND RETURN OF DOCUMENTS

Any document which is inadmissible, shall be returned and the reasons for rejection of the document shall be recorded.

Every document which is received as evidence shall be endorsed by the judge.

A document which was in possession or power of a person and which has not been produced may not be produced at later stage of the suit unless the judge decides there is sufficient cause to admit it.

CONCLUSION

18. In conclusion, the complainant submits that under the settled laws of this country this court at this stage of the proceedings ought either to accept the evidence of the surveyor report without affidavit or order evidence by affidavit or personal appearance whichever option is just and fair in its discretion.

Changes in Indian Rape and other sexual Laws: 2013

Author: Parminder Singh BA, LL.B, J.D.  (Canada)

July 15, 2014

In the Act the word ‘rape’ has been extended to include acts in addition to vaginal penetration by things other than penis.

The penetration of penis, any object or any part of body, to any extent, in vagina, mouth, urethra or anus, without woman’s consent, is now rape. If an accused makes another person do these acts, he is also guilty of rape.

Touching of private parts of a woman without her consent with mouth or otherwise constitutes the offence of sexual assault.

The section has also clarified that lack of physical resistance is immaterial for constituting an offence.

Procedure & Evidence

Certain changes have been introduced in the Criminal Procedure Code and Evidence Act, like the process of recording the statement of the victim has been made more victim friendly and easy but the critical changes are:

The ‘character of the victim’ is now rendered totally irrelevant, and

There is now a presumption of ‘no consent’ in a case where sexual intercourse is proved and the victim states in the court that she did not consent. Once the victim says she did not give consent for sex and the intercourse is proved, the accused will have the burden of rebutting the victim’s allegations.

Lack of physical resistance does not mean consent was given for intercourse.

Section 146 of the Evidence Act:  where the question of consent is an issue, it

shall not be permissible to adduce evidence or to put questions in the cross-examination of the victim as to the general immoral character, or previous sexual experience, of such victim with any person for proving such consent or the quality of consent.”

A victim of rape can be charged with perjury, if she lies to court in a rape case, but courts rarely use this power because this will discourage reporting of rape by the genuine victims.

Punishment for rape or sexual assault

The punishment will be imprisonment not less than seven years but which may extend to imprisonment for life, and shall also be liable to fine. In aggravated situations, punishment will be rigorous imprisonment for a term which shall not be less than ten years but which may extend to imprisonment for life, and shall also be liable to fine.

Reasons for false rape cases

The rate of conviction in rape cases dipped from 40% in 2001 to 24% in 2012. In large number of acquittals the courts found that the allegations of rape were made to achieve other ends, such as: Extortion, recovery of dues, property disputes, misunderstanding, relationship problems, extra-marital affairs.

In January this year, additional sessions judge Virender Bhat suggested empowerment of courts to order compensation for persons who get implicated in false cases. The judge, while acquitting a man of rape charges filed by a married woman in March 2013, remarked it was “a voluntary liaison” which was turned into a rape under pressure from the woman’s husband.

Recently, another fast track court judge, ASJ Nivedita Anil Sharma observed that false complaints are registered by women who are caught doing extra-marital sex in order to survive humiliation.

In many cases, women stated they registered the case out of anger and due to misunderstanding.

Registration of false cases is rampant and likewise the acquittal rate is alarming. The new law is being abused because of the broad definition of rape.

Experts feel, in many cases the sex is consensual but the victim claims that the consent was given on account of promise of marriage.

Definition of rape

‘375. A man is said to commit “rape” if he—

(a) penetrates his penis, to any extent, into the vagina, mouth, urethra or

anus of a woman or makes her to do so with him or any other person; or

(b) inserts, to any extent, any object or a part of the body, not being the

penis, into the vagina, the urethra or anus of a woman or makes her to do so with

him or any other person; or

(c) manipulates any part of the body of a woman so as to cause penetration

into the vagina, urethra, anus or any part of body of such woman or makes her to

do so with him or any other person; or

(d) applies his mouth to the vagina, anus, urethra of a woman or makes

her to do so with him or any other person,

under the circumstances falling under any of the following seven descriptions:—

First.—Against her will.

Secondly.—Without her consent.

Thirdly.—With her consent, when her consent has been obtained by putting her or any person in whom she is interested, in fear of death or of hurt.

Fourthly.—With her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.

Fifthly.—With her consent when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.

Explanation 1.—For the purposes of this section, “vagina” shall also include labia majora.

Explanation 2.—Consent means an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non-verbal communication, communicates willingness to participate in the specific sexual act:

Provided that a woman who does not physically resist to the act of penetration shall not by the reason only of that fact, be regarded as consenting to the sexual activity.

Exception 1.—A medical procedure or intervention shall not constitute rape.

Exception 2.—Sexual intercourse or sexual acts by a man with his own wife, the

wife not being under fifteen years of age, is not rape.

Punishment for rape

376. (1) Whoever, except in the cases provided for in sub-section (2), commits

rape, shall be punished with rigorous imprisonment of either description for a term

which shall not be less than seven years, but which may extend to imprisonment for

life, and shall also be liable to fine.

Definition of other sexual offenses

IPC Sections       Offense               Punishment       Definition Notes

354A      Sexual harassment:    physical contact and advances   involving unwelcome and explicit sexual overtures; or a demand or request for sexual   favours; or making sexually coloured remarks; or forcibly showing pornography; or any other unwelcome physical, verbal   or non-verbal conduct of sexual nature.

Rigorous imprisonment up to five   years, or with fine, or with both in case of offence described in clauses (i)   & (ii)Imprisonment up to one year, or with   fine, or with both in other cases

354B      Act with intent to disrobe a woman: Assaults or uses criminal force to any woman or abets such act with   the intention of disrobing or compelling her to be naked

Imprisonment not less than three years but which may extend to seven   years and with fine.

354C      Voyeurism: Watching or capturing a woman in “private act”, which includes an act   of watching carried out in a place which, in the circumstances, would   reasonably be expected to provide privacy, and where the victim’s genitals,   buttocks or breasts are exposed or covered only in underwear; or the victim   is using a lavatory; or the person is doing a sexual act that is not of a   kind ordinarily done in public.

In case of first conviction, imprisonment not less than one year, but   which may extend to three years, and shall also be liable to fine, and be   punished on a second or subsequent conviction, with imprisonment of either   description for a term which shall not be less than three years, but which   may extend to seven years, and shall also be liable to fine.

354D      Stalking:   To follow a woman and contact, or attempt to contact   such woman to foster personal interaction repeatedly despite a clear   indication of disinterest by such woman; or monitor the use by a woman of the   internet, email or any other form of electronic communication. There are   exceptions to this section which include such act being in course of   preventing or detecting a crime authorised by State or in compliance of   certain law or was reasonable and justified.

Imprisonment not less than one year but which may extend to three   years, and shall also be liable to fine   Only for women.

376C.     Sexual intercourse by a person in authority Non-rape   type intercourse : Whoever, being—(a) in a position of authority or in a fiduciary   relationship; or(b) a public servant; or(c) superintendent or manager of a jail, remand   home or other place ofcustody established by or under any law for the   time being in force, or a women’s or children’s institution; or (d) on the management of a hospital or being on   the staff of a hospital, abuses such position or fiduciary relationship to   induce or seduce any woman either in his custody or under his charge or present in the   premises to have sexual intercourse with him, such sexual intercourse not amounting to   the offence of rape,

Shall be punishedwith rigorous imprisonment of either description   for a term which shall not be less thanfive years, but which may extend to ten years, and   shall also be liable to fine.

376B.sexual intercourse with his own wife, who is   living separately: Whoever has sexual intercourse with his own wife,   who is living separately, whether under a decree of separation or otherwise,   without her consent, shall be punished with imprisonment of either   description for a term which shall not be lessthan two years but which may extend to seven   years, and shall also be liable to fine.

375. Rape type Sexual intercourse with wife is not rape: No punishment but civil remedies available:Marital rape that   occurs when spouses are living together can only be dealt under the Protection   of Women from Domestic Violence Act 2005 which only provides civil   remedies to victims   (it is a form of non-criminal domestic violence). Marital rape is not a   criminal offense, except when spouses are separated.

Exception 2.—Sexual intercourse or sexual acts by   a man with his own wife, the wife not being under fifteen years of age, is not   rape.‘

370. (1)Sexual exploitation or trafficking: Whoever commits the offence of trafficking shall   be punished with rigorousimprisonment for a term which shall not be less   than seven years, but which mayextend to ten years, and shall also be liable to   fine.

Whoever, for the purpose of exploitation, (a)   recruits, (b) transports,(c) harbours, (d) transfers, or (e) receives, a   person or persons, by—

First.— using threats, or

Secondly.— using force, or any other form of   coercion, or

Thirdly.— by abduction, or

Fourthly.— by practising fraud, or deception, or

Fifthly.— by abuse of power, or

Sixthly.— by inducement, including the giving or   receiving of payments

or benefits, in order to achieve the consent of   any person having control over

the person recruited, transported, harboured,   transferred or received,

commits the offence of trafficking.

Explanation 1.— The expression   “exploitation” shall include any act of physical

exploitation or any form of sexual exploitation,   slavery or practices similar to slavery,

servitude, or the forced removal of organs.

Explanation 2.— The consent of the victim is   immaterial in determination of the offense of trafficking.

Criminal and Civil remedies in Check Bounce Cases

Author: Parminder Singh LL.B, J.D.(Canada)

July 17, 2014

When a check is bounced, clients have two options: Criminal and Civil. In this article, we will discuss both the options.

Criminal Prosecution

Check bounce is a criminal offense in India under section 138 of the Negotiable Instruments Act. The accused can be punished with either or both of the following: an imprisoned up to 2 years or payment of  double the check amount. The procedure is strict and clients must follow time lines. The offense of check bounce becomes time barred if the time lines are not followed. No court inferior to the first class judicial magistrate or metropolitan magistrate can charge the accused upon written complaint by the victim (S. 142 Negotiable Instruments Act.)

The accused must be liable to pay money under some legally enforceable debt, liability, or agreement. Checks given as gifts or donations do not attract sanctions under the Act.

The check must be presented to the bank within the validity period of the check or within 6 months of its issuance whichever is earlier.

Within 30 days of check bounce incident, the client must send a notice of demand to the accused. This notice should be time stamped by the courier service.  It may also be emailed apart from sending it by courier. The notice should mention the liability of the accused under some debt or agreement and reasons for check bounce.

Most importantly it should mention the 15 day time within which the payment must be made and the criminal consequences of non- payment.

If the accused does not pay the amount within 15 days, the client must report this to magistrate of his jurisdiction within 30 days of the expiry of the demand notice along with the paper trail of the couriers and transactions.

In exceptional circumstances, this time line may be extended by the magistrate, if he is satisfied that the reasons for delay are justified.

Any magistrate under whose jurisdiction the following addresses fall can take jurisdiction of the case: Defaulter’s bank, client’s bank, client’s place, defaulter’s place.

The summons will be issued to the accused by the magistrate for appearance and if found guilty, the accused will be served arrest warrants and eventually imprisoned or fined or both.

It should be noted that the accused cannot extend 15 day dead line for payment. A request by the accused to re-submit the check will not extend the dead line of 15 days for payment, if the check is bounced 2nd time.

Civil Remedies

Under criminal procedure, the client may be able to imprison the accused but may not recover payment, but under civil option, the client may be able to recover payment.  However, the accused may not be imprisoned under civil proceedings. Hence it is best to file both criminal and civil cases against the accused. However, in most cases, the threat of criminal proceedings will force the accused to pay the amount.

A summary suit under Order 37 of the Code of Civil Procedure (1908) can be initiated along with the criminal prosecution. A summary suit is different from an ordinary suit as it does not give the accused the right to defend himself except with the permission of the court. Summary suits can be initiated only in recovery matters, be it promissory notes or bills of exchange or cheques. The chances of imprisonment are remote in civil matters.

Risks faced from Banks

A jail term or monetary penalty isn’t the only consequence faced by the issuer of a dishonoured cheque. The bank has the right to stop the chequebook facility and close the account, if the default has taken place at least four times on cheques valued over Rs 1 crore.

If the bounced cheque was for repayment of loans, banks also have the collateral offered as security. However, the banks are bound to issue a notice before auctioning such property to recover the money.

A bank can also deduct money from the defaulter’s account if there is an explicit contract giving the bank such a right.

Forgery & Cheating

 

July 24, 2014

Author: Parminder Singh LL.B, J.D. (Canada)

This article describes BRIEFLY the issues, the law and its application in a forgery and cheating case.

FACTS

A forgery, cheating and conspiracy case where a seller sells a non-owned property to a buyer, believing or not that the property belonged to him.

ISSUES

The following issues arise in a forgery, cheating and conspiracy case

1.Whether the facts of the instant case disclose the charges of forgery, in particular, whether the accused used any false document in executing the sale deed of the non-owned property?

2.Whether the facts of the instant case reveal charges of cheating, in particular, whether the accused practiced cheating or deception on the complainant?

3.Where a seller of the non-owned property cheated the buyer by deception, whether the original owner or a third party can press charges of cheating against the seller?

PART 3: THE LAW

No forgery by executing sale of non-owned property: Supreme Court of India 2009

List of authorities

1.Mohd Ibrahim v State of Bihar, September 2009, Supreme Court of India

2.Ganesh Dan. vs. State of Rajasthan & Anr.2012

3.Sawai Singh Sankhla & Ors. Vs. State of Rajasthan & Anr 2011

4.Section 420, 447, 465, 468, 571, 120B of the IPC

APPLICATION OF LAW

In Mohd Ibrahim, the court states where no false documents are involved in a transaction, charges of Forgery are not made out. At para 9 of Mohd Ibrahim supra, the court states:

“The condition precedent for an offence under sections 467 and 471 is forgery. The condition precedent for forgery is making a false document.”

And at para 11, the court describes false documents as follows:

“….a person is said to have made a ‘false document’, if (i) he made or executed a document claiming to be someone else or authorized by someone else; or (ii) he altered or tampered a document; or (iii) he obtained a document by practicing deception, or from a person not in control of his senses.”

The applicants’ submit that the charges of forgery are not made out since the accused did not use any forged or false document as required under IPC sections on Forgery.

1. In the instant case none of the grounds for criminal charges of Forgery existbecause:

1.The complainant has failed to provide any evidence with respect to impersonation by the accused

2.The complainant has failed to provide any altered document by the accused

3.The complainant has failed to provide any DOCUMENT obtained by deception or intoxication by the accused

2. The facts of the instant case do not make up charges of cheating

In order to attract criminal charges of cheating, the complaint must show that the accused used deception or misrepresentation to sell the property to the complainant in order to deprive him of valuable consideration. The apex court at para 13 describe vital elements of cheating as follows:

“….The essential ingredients of the offence of “cheating” are as follows: (i) deception of a person either by making a false or misleading representation or by dishonest concealment or by any other act or omission; (ii) fraudulent or dishonest inducement of that person to either deliver any property or to consent to the retention thereof by any person or to intentionally induce that person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived; and (iii) such act or omission causing or is likely to cause damage or harm to that person in body, mind, reputation or property.

To constitute an offence under section 420, there should not only be cheating, but as a consequence of such cheating, the accused should have dishonestly induced the person deceived (i) to deliver any property to any person, or (ii) to make, alter or destroy wholly or in part a valuable security (or anything signed or sealed and which is capable of being converted into a valuable security).”

The applicants respectfully submit that the accused did not sell the property to the complainant, the original owner, and as such no deception could be used by the accused on the complainant.

3. Only the complainant who is a buyer in a sale deed can press charges of cheating

Assuming any of the grounds of cheating exist, the complaint of cheating can only be made by the buyer of the property and not by the third party as per the established case law in Mohd Ibrahim infra, at para 15:

If a person sells a property knowing that it does not belong to him, and thereby defrauds the person who purchased the property, the person defrauded, that is the purchaser, may complain that the vendor committed the fraudulent act of cheating. But a third party who is not the purchaser under the deed may not be able to make such complaint.

Since the complaint is made by the third party, the criminal charges cannot be framed as per the strict dictum of the Supreme Court of India in Mohd Ibrahim supra.

The accused bonafide believed that he was the owner of the property.  As such, the accused sold the property to the buyer because of his deteriorating health and age.

The belief of the accused was based on the ground realities of this case:

As shown in the Video or Photographs of the property, the disputed property lies in the densely populated area of the village. The property is not out of village. As such, the accused genuinely believed that it is under the Lal Lakir.

Even the village Sarpach and Numberdar, who were exposed and experienced in such matters, believed that the property was under Lal Lakir and as such it belonged to the occupier and possessor of the property.

The village officials are entitled to make mistakes in good faith. In this case the village officials and the accused made the mistake of believing that the property was under Lal Lakir. This mistake does not amount to misrepresentation or deception.

Even if the accused’s belief was not bonafide and it amounted to misrepresentation or deception, the complainant cannot be a third party, rather the complainant could only be the buyer who was cheated by the seller. The sale deed expressly makes the seller liable for any misrepresentation in the sale deed.

Finally, the charges of conspiracy under s 120 require two ingredients. First that there is a conspiracy among two or more persons, and secondly, the conspiracy is for a criminal purpose.

Since criminal charges of forgery and cheating are not made out in the instant case, the ingredients of s 120 are not made out. In addition, the FIR discloses no evidence of conspiracy. As such, it is submitted that the FIR no. 85, dated 08-10-13 and investigations against all the accused ought to be cancelled.

IN CONCLUSION, it is respectfully submitted that the facts of this case disclose nothing else but a civil dispute among the parties to a disputed property. However, in an attempt to pressurize the main accused to settle a civil dispute, the accused have been harassed or detained for 72 days. by giving a criminal colour to a clearly civil dispute, unfortunately despite the Supreme Court’s recent and standing warning in Mohd Ibrahim supra at para 7 in the following eloquent yet stern statement:

“This Court has time and again drawn attention to the growing tendency of complainants attempting to give the cloak of a criminal offence to matters which are essentially and purely civil in nature, obviously either to apply pressure on the accused, or out of enmity towards the accused, or to subject the accused to harassment. Criminal courts should ensure that proceedings before it are not used for settling scores or to pressurize parties to settle civil disputes.”

As such, it is respectfully prayed to this court to stop harassment and pressurization of the accused so that the civil dispute among the parties may take its course, fairly and evenly, without fear or favour.