How to attend a case hearing in supreme court

One of my client asked me that he want to attend the hearing his case in the supreme court.Than I consult his advocate for informing my client intention to attend a case hearing in supreme Court. I think that my client will directly approach his advocate in Supreme Court, but there after it came to know that  after the introduction of the Hightech security system in the supreme court of India, the entry to the high security zone is restricted by using proximity cards to the members of the supreme court bar association and by daily entry photo passes to others, which are issue d from the counters installed at the entry point of the supreme court.

If a party to the case wants to remain present at the time of hearing the case, he has to get a request form forwarded from his advocate and then submit it along with proof of his identity at the Reception Counter of the Supreme Court, which will issue pass for attending the Court in which the matter is listed on that day. An unrepresented party can obtain the requisite pass, on giving proof of his identity, if his matter is listed on that date. Photo Entry Passes are now being issued to the parties as well as other visitors.

Section 138 - Dishonour of cheque for insufficiency of funds etc., [Negotiable Instruments Act 1981]

Advent of cheques in the market have given a new dimension to the commercial and corporate world, its time when people have preferred to carry and execute a small piece of paper called Cheque than carrying the currency worth the value of cheque. Dealings in cheques are vital and important not only for banking purposes but also for the commerce and industry and the economy of the country. But pursuant to the rise in dealings with cheques also rises the practice of giving cheques without any intention of honoring them. Before 1988 there being no effective legal provision to restrain people from issuing cheques without having sufficient funds in their account or any stringent provision to punish them in the vent of such cheque not being honoured by their bankers and returned unpaid. Of course on dishonour of cheques there is a civil liability accrued. However in reality the processes to seek civil justice becomes notoriously dilatory and recover by way of a civil suit takes an inordinately long time. To ensure promptitude and remedy against defaulters and to ensure credibility of the holders of the negotiable instrument a criminal remedy of penalty was inserted in Negotiable Instruments Act, 1881 in form of the Banking, Public Financial Institutions and Negotiable Instruments Laws (Amendment) Act, 1988  which were further modified by the Negotiable Instruments (Amendment and Miscellaneous Provisions) Act, 2002[3].

Meaning of Dishonour of Cheque :- 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 the bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provisions of this Act, be punished with imprisonment for *[a term which may extend 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 – For the purposes of this section, “debt or other liability” means a legally enforceable debt or other liability.

The essential requirements to attract section 138, Negotiable Instruments Act are:

(a)    The cheque for an amount is issued by the drawer to the payee / complainant on a bank account maintained by him.

(b)   The said cheque is issued for the discharge, in whole or in part of any debt or other liability.

(c)    The cheque is returned by the bank unpaid on account of insufficient amount to honour the cheque or it exceeds the amount arranged to be paid from that account by an agreement made with the bank.

(d)   The cheque is presented within 6 months from the date on which it is drawn or within the period of its validity.

(e)    30 days demand notice is issued by the payee or the holder in due course on receipt of information by him from the bank regarding the dishonour of the cheque.

(f)    The drawer of said cheque fails to make payment of the said amount of the money to the payee or the holder on due course within 15 days of the said notice.

(g)   The debt or liability against which the cheque was issued is legally enforceable.

Component of offence:

Section 138 of the Act makes it an offence where may cheque drawn by a person on any account maintained by him in a Bank for payment of any amount to other person is returned unpaid by the Bank for insufficiency of the deposit or for the amount payable exceeding such deposit. The components of offence under this provision are, (a) drawing of the cheque for some amount; (b) presentation of the cheque to the banker; (c) return of the cheque unpaid by the drawee bank; (d) giving of notice by the holder of the cheque or payee to drawer of the cheque demanding payment of cheque amount; (e) failure of drawer to make payment within 15 days of receipt of such notice.

Drawing of a Cheque:

The drawer in payment of a legal liability to discharge the existing debt should have drawn cheque. Therefore any cheque given say by way of gift would not come within the purview of the section. It should be a legally enforceable debt; therefore time barred debt and money-lending activities are beyond its scope.

The words any debt or any other liability appearing in section 138 make it very clear that it is not in respect of any particular debt or liability The presumption which the Court will have to make in all such cases is that there was some debt or liability once a cheque is issued. It will be for the accused to prove the contrary. i.e., there is no debt or any other liability. The Court shall statutorily make a presumption that the cheques were issued for the liability indicated by the prosecution unless contrary is to be proved.

Where the Complaint lacks necessary ingredients of the offence under Section 138: Hon’ble Supreme Court in JugeshSehgal Vs. Shamsher Singh Gogi 2009(3) CC Cases (SC) 2004. The  Supreme Court noted that the cheque alleged to have been issued by the petitioners to the complainant was issued from an account pertaining to some other person. The Court also noted that one of the essential ingredients of the offence punishable under Section 138 of Negotiable Instruments Act is that the cheque must have been drawn on an account maintained by the accused. Since the cheque in the case before the Supreme Court was not issued from the account maintained by the petitioner, it was held that one essential ingredient of offence under Section 138 of Negotiable Instruments Act was not.

Presentation of Cheque:

The presentation of cheque should be within its validity period. Generally a cheque is valid for six months, but there are cheques whose validity period is restricted to three months etc. The question arises as to which bank the cheque should reach within the validity period, is it the payee to his bank presents that of drawer’s bank or it is enough if the cheque before six months. The courts are divided on the issue. But common sense demands that the cheque should reach the drawer bank within the period of validity as it is that bank that either pays or rejects payment as per the situation existing on that day.

Supreme Court in Sadanandan Bhadran vs. Madhavan Sunil Kumar,  It was also held that while the payee was free to present the cheque repeatedly within its validity period, once notice had been issued and payments not received within 15 days of the receipt of the notice, the payee has to avail the very cause of action arising thereupon and file the complaint. Dishonour of the cheque on each re-presentation does not give rise to a fresh cause of action.

Returning Of the Cheque Unpaid:

Lot of controversy had arisen on the issue. What reasons are relevant to hold the drawer of the cheque criminally responsible for bouncing of a cheque. The case laws on the subject have now made the position clear. It is not what the bank says in its return memo that is relevant but the actual position as on the date when the cheque reaches the drawer bank whether there were enough funds in the drawer account to honour the cheque. The following judgments bring out the correct legal position: Rakesh Nemkumar Porwal v. Narayan Dhondu Joglekar : Any reason for dishonour is an offence.

J. Veeraraghavan v. Lalith Kumar: Any reason for dishonour is an offence. S. 138 of the NI Act Marginal Note stating "Dishonour of cheque for insufficiency etc. of funds in accounts" addition of word "etc." cannot be considered to be an accident.

Disagreeing with Hunasikathimath case , Karnataka H.C., who following Punjab and Haryana H.C. in theAbdul Samad case and by a learned single Judge of Bombay H.C. in Om Prakash case, terming them as rigid and wooden view states:

"there is no other go for us except to agree to disagree with the views expressed herein, in as much as such a view, apart from suffering from a serious infirmity of erroneous interpretation of the relevant provisions of the Act, is to frustrate the very object and purpose for which the relevant provisions had been introduced by the amending Act. It is to be noted that this sort of a view is not negligibly supported by the very title of the Chapter Of penalties in case of dishonour of certain cheques for insufficiency of funds in the accounts (Emphasis supplied.) Equally important it is to note that the marginal note to sec. 138 of the Act states …………. Top of all, such sort of a view, if accepted and followed, the statutory provisions of Chapter XVII, introduced by amending Act, would become a dead letter and a non-sense situation would be created, in the sense of posing insurmountable obstacle in the free negotiability and acceptability of the cheques in the fast moving commercial transactions at regional, national and global level, creating a calamitous situation in the commercial world.

With respect, we agree fully with the view expressed by the Dn. Bench of Bom. HC in the case of Rakesh Porwal and of the Kerala HC in the case of Thomas Verghese and a single Judge of the Rajasthan HC in the case of Pearay Lal Rajendra Kumar P Ltd, in as much as such a view had been arrived at in interpreting the various expressions and words used in the relevant provisions in a meticulous fashion keeping in view the object and reasons for which such a provision had been introduced with the avowed purpose of achieving the object for which it was enacted."

Notice:

Notice is a very important stage. It is the non-payment of dishonoured cheque within fifteen days from the receipt of the notice that constitutes an offence. Issuing of a cheque and its dishonour is not an offence. The offence is when the drawer receives a notice from the payee and he fails to pay the dishonoured cheque amount within the grace period of 15 days that constitute an offence. Any demand made after the dishonour of cheque will constitute a notice. It is not necessary that the notice should be sent by Registered Post alone, it could be sent even by fax. It is not necessary that the notice should be in any particular form or style. What is essential is that there should be a demand to pay the dishonoured cheque amount.

It is held by the Supreme Court that while the cheque could be presented at any number of times however there shall be only one Notice. The following case may be noted on the subject:

Sadanandan Bhadran v. Madhavan Sunil Kumar

Complaint U/s. 138- Maintainability - conditions precedent to applicability of sec. 138 - A cheque can be presented any number of times during the period of its validity- Whether dishonour of the cheque on each occasion of its presentation gives rise to a fresh cause of action within the meaning of Sec. 142(b) of the act - Held No. - A competent court can take cognizance of a written complaint of an offence u/s.138 if it is made within one month of the date on which the cause of action arises under clause c of Sec.142 gives it is a restrictive meaning - it is the failure to make payment within 15 days from date of receipt of notice which will give rise to cause of action - Cause of action within meaning of Sec. 142 (c) arises and can arise only once - impediments which negate concept of successive causes of action

Held.:

On each presentation of the cheque and its dishonour a fresh right and not cause of action - accrues in his favour. He may, therefore, without taking pre-emptory action in exercise of his right under clause (b) of Section 138, go on presenting the cheque so as to enable him to exercise such right at any point of time during the validity of the cheque. But, once he gives a notice under clause (b) of Sec. 138 he forfeits such right for in case of failure of the drawer to pay the money within the stipulated time he would be liable for the offence and the cause of action for filing the complaint will arise. Needless to say, the period of one month for filing the complaint will be reckoned from the day immediately following the day on which the period of fifteen days from the date of the receipt of the notice by the drawer expires. No action taken on the first notice - cheque presented again - second notice sent - on failure to receive money case filed on the basis of second notice - Acquittal on ground that there could not be more than one cause of action in respect of a single cheque - sustainable - Appellant had earlier taken recourse to clause (b) of Sec. 138 but did not avail of cause of action that arose in his favour u/s. 142(b) of the Act.

Therefore it is essential that the notice should be perfect and in conformity with law. A mistake in the notice will be fatal. It is common mistake committed by most of the payees that as soon as the cheque is returned unpaid to write a letter to the drawer threatening him that in case he does not pay against the dishonoured cheque legal action will be taken etc. Such letter will also be construed as a notice. Since a second notice cannot now be issued on the basis of subsequent dishonour of cheque, due care and caution should be taken while sending the notice on dishonour of cheque.

As stated already that non-payment of cheque amount within the grace period of fifteen days from the date of receipt of the notice constitutes an offence and therefore liable to prosecuted for the criminal offence so committed.

Limitation:

These being a special legislation certain time limits have been laid down and they should be strictly followed. Any lapse in adhering to the schedule, shall take away a cause of action under Sec. 138. The time limits placed cannot be condoned by the Courts. Therefore the question of making an application for condonation of delay as in the case of civil does not arise at all under the said section. What then are the limitations one has to keep in one mind and follow them strictly to prosecute the drawer of cheque who has failed to pay the said sum within fifteen days from the receipt of the notice?

• Cheque should be presented to the bank for encashment within its validity period.

• Within fifteen days from the receipt of return memo indicating reason of dishonour, a notice should be sent demanding the amount of dishonored cheque.

• If the drawer does not pay the amount of dishonoured cheque within the grace period, a complaint thereafter should be filed within one month in the relevant court of Metropolitan Magistrate/Judicial Magistrate as the case may be, having jurisdiction.

Jurisdiction:

Territorial jurisdiction - Dishonour of cheque - Complaint can be filed at any of the place: -

1. Where the cheque was drawn.

2. Where the cheque was presented for encashment.

3. Where the cheque was returned unpaid by drawee bank.

4. Where notice in writing was given to drawer of cheque demanding payment.

5. Where drawer of cheque failed to make payment within 15 days of receipt of notice.

Each of the fine acts constituting offence could be done at 5 different localities. Hence one of the Courts exercising jurisdiction in one of the five local areas can become the place of trail for the offence under sec. 138 of the Act. 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.

PRECAUTIIONS TO BE TAKEN WHILE PURCHASING PROPERTY/LAND

Purchasing a property/land requires utmost care. One has to examine and find out the title of the seller or nature of his right. A seller can sell only what he possesses. Therefore if a seller has proper and valid title, on purchase you will get valid title. If the seller's title is defective, you will get only defective title. The simple reasoning is that he can sell what he has, and nothing more.

Some of the important aspects to be borne in mind while purchasing a land may be classified under different heads as follows:

1. First and foremost ask who is the seller. Get the full name and address of the seller.

2. Find out what is the nature of his right. The seller may be having absolute ownership right, or a conditional or limited right.

3. So far as the types of rights in the land, it can be classified mainly as follows:

· Free hold or absolute ownership land known as Warg right

· Mulgeni right (right of permanent lease),

· Tenancy right,

· Lands  granted   by  government,  under  Land  Grant Rules, Land Revenue Act, Grant of Flouse sites.

· Lands granted under Land Reforms Act, etc

4. It is always advisable to deal with a Freehold right or absolute ownership right, which is also called as Warg right.

5. After getting the particulars as to who is the seller, what is his right, then find out the source of his right or title.

a) The title of the seller may be by purchase, by inheritance, by partition, by gift, by settlement or   by grant.

b) To find out the source of title there must be some document like.

Right of purchase ---------- Sale Deed

Inheritance ----------------- Entries in Revenue records, and predecessor's title

Partition       --------------- Deed of partition

Gift    ---------------------- Gift Deed

Settlement------------------- Deed of settlement

Grant ------------------------ Grant order

Mulgeni --------------------- Deed of Mulgeni or permanent lease

c) If the right is by purchase ask for the original sale deed. See when the seller had purchased the land and from whom he had purchased. Verify the previous records. Verify, the title for thirty years.

d) If it is by inheritance, ask the particulars as to from whom he has inherited. What was the right of his predecessor? Again it may be a sale deed or gift, or inheritence. Verify the previous title Get the details as to how his predecessor acquired the title, and whether he is the only person who has inherited. If here are other persons who have jointly inherited, then you have to find out, whether there was any partition. Whether there are any minors who have inherited the property. If there is a minor, the minor's property can  not be purchased without obtaining permission of the Court.

e) If it is by partition   there must be a deed of partition.

f) See whether there are any conditions or restrictions in the deed of partition. Find out whether there are any conditions, like pre-emption, water rights, rights of way, payment of maintenance etc.

g) Likewise if it is gift deed, or settlement deed, or grant, get the original Gift deed, settlement deed, or grant order as the case may be. Read the document and see whether there are any conditions, like reservation of life interest, restrictions for alienation, payment of maintenance, preemption etc. Some times there may be reservation of life interest, or what was gifted may be only right of enjoyment

h) Rights acquired under various types of Grant orders again are subject to several conditions regarding alienation and enjoyment. This has to be verified. If the grant is in favour of a person belonging to Scheduled Caste or Scheduled Tribe community, generally there will be a condition prohibiting alienation. Such lands cannot be purchased

i) If it is a Mulgeni ask for the deed of mulgeni, again see whether there are any conditions. Mulgeni or right of permanent lease is again a conditional right. In such cases there are two parties or persons having the right in the Jand. One is the owner and another is the permanent lessee. In other words, one is the Mulgar/owner and the other one is Mulgenidar/ tenant. The possessory right or right of enjoyment will be, with the Mulgenidar/tenant.,The owner/Mulgar will have the right of ownership with right to collect the stipulated rent. The deed of Mulgeni or deed of permanent lease will contain the restrictions regarding alienation, payment of rent, and the other rights of the lessee etc. All these have to be verified. Because the owner/mulgar will generally have a right to challenge or question the alienation/transfer and the very right of mulgeni can be cancelled or terminated. It is always advisaWe to find out as to that is the Mulgar, or owner, and purchase his rights also.

j) If there are any conditions in the documents, examine the conditions, and if the conditions restrict or prohibit the transfer or alienation, do not proceed.

6. Find out the extent of the property and see whether it tallies with the one mentioned in the documents.   Verify the survey number, location and  boundaries and  get the land  measured  through  a competent surveyor.

7. Find out whether there is an approach road.

8. Examine the sketch or plan of the property.

9. Get the record of rights (RTC) of the land and confirm that the name of the seller is shown as owner in possession of the property. You can get the latest  computerized RTC from the Taluk Office. The record of rights will disclose the name of the owner, name of the person in possession, nature of right, nature of land, and also encumbrances if any.

10. Identification of the lands will be always by Survey Numbers. Record of rights/ khata will give an indication as what is the right of the holder. Confirm the entriesin the record of rights/khata with some other registered documents / or previous documents. This is because the Record of rights or khata by itself is not a document of title.

11. We have to find and out and see whether there are any encumbrances, charges, or mortgages on the property. Verify Encumbrance certificate for at least 13 or 15 years up-to-date. If there are any charges/mortages/ or other encumbrances noted in the Encumbrance certificate do not proceed till the same are cleared or clarified.

How to find out this?

a. Apply and get an encumbrance certificate at least for 13 or 15 years, from the office of the Sub-Registrar where the immovable property is situated. Give the particulars of the property like

Survey Number, extent of land, name of the village, name of ward, boundaries, etc. and specify the period for which you require the encumbrance certificate.

b. The encumbrance certificate will show the details of registered documents relating to the property, Like sale deeds, mortgage deeds, etc.

c. If there are no such registered records relating to the property the encumbrance certificate will be a Nil Encumbrance certificate.

d. Mortgages or charges can be created by registered documents, or by depositing the original title deeds. If it is by registered documents, like deed of mortgage, it will be reflected in the encumbrance certificate. If it is by deposit of title deeds, the Encumbrance certificate will not disclose it. Therefore you haveto ask for the originals title deeds for verification. If the original title deeds are with the owner it means that he has not deposited it with any body. Sometimes, the originals might have been lost by misplacement, fire, or by some other means. If that is the situation then one has to proceed only on the basis of trust. We can ask for an affidavit, a sworn statement of the owner to the effect that the original title deeds are really lost and that he has not created any charge, or deposited it with anybody. A paper publication can also be given.

12. If the properly which you are going to purchase is a land with building,  you   have to  verify   the  building  licence,  completion certificate and latest tax paid receipt

13. Khata of the building and land has to be verified and it must show the name of the owner.

14. Apartments: If the property which you are going to purchase is an apartment you  have examine and verify:

a. The title to the land on which the apartment building is constructed. For tracing and confirming the title of the land on which the Apartment building is built, the same points narrated above have to be followed.

b. The land and the building must have been submitted to the provisions of Kar. Apartment Ownership Act 1972, by a registered document called the Deed of Declaration. Read the Deed of declaration and it will give you a clear picture as to what are the common rights, facilities, how it has to be enjoyed,how it has to be maintained. As a whole the deed of declaration will contain the various provisions regarding the mode of enjoyment of the apartments, common areas, and facilities.

c. The percentage of right in the land which you are going to get has to be verified

d. Whether the Association of the Owners has been formed?

e. Get a no due certificate from the Association of Owners regarding maintenance or other charges so far as it relates to the apartment, which you are purchasing.

f. The building license, plans, completion certificate latest tax paid receipt have to be verified.

g. All documents relating to land as explained above have to be verified.

h. The original of the sale deed relating to the apartment, which you are purchasing, has to be obtained.

15. Sale by General Power of attorney holder. In many cases the actual owner does not come forward for executing the sale deed and the GPA holder represents the owner. In such cases first of all we have to verify the genuineness of the GPA. The original GPA must be verified and the GPA holder must have the custody of the original GPA. The following points may be borne in mind while examining the GPA:

a) The GPA is still in force. If it is an old GPA ask for a confirmation.

b) The GPA must contain the following powers and particulars:--Power of sale, power to sign and execute the sale deed, receive the consideration, appear before the Sub-Registrar, present the document for registration, admit execution and receipt of consideration, deliver possession of the property and description of the property, full name and address of the person giving the power and the person to whom it is given. If all these powers are there the GPA holder can execute the sale deed.

c) The GPA must be drawn on stamp paper of the required value. It must be attested by a Notary, Magistrate, Sub-Registrar or embassy.

17. As the sale transactions cannot be done then and there, and since it requires some reasonable time for both the seller and purchaser, many a times, the parties enter into agreement for sale pending registration of the actual sale deed. Before entering into agreement for purchase or sale, all the points narrated above have to be verified. The purchaser must retain the original agreement. Copies of the title deeds have to be obtained. The agreement has to be drawn and executed on stamp paper of required value. The agreement for sale must contain at least the following particulars:

a) Full name and address of the Seller and Purchaser.

b) A brief history of the title of the seller, with reference to his title deed.

c) An undertaking by the seller to sell |he land to thed) The total price of the property agreed between the parties.

e) The amount of advance paid, mode of payment, acknowledgement of receipt of the advance by the seller, the amount of balance price to be paid, the time for payment of the balance price.

f) Time for execution and registration of the sale deed.

g) An undertaking to deliver vacant possession of the property

h)  An undertaking to hand over all title deeds

i)   A clear description of the property

j)   Date and time of the agreement.

k)  A default clause stipulating penalty or damages for breach of agreement.

Daughters my biggest assets, not liability, says SC judge....

Breaking her silence on the controversy whether she considered the marriage of her two daughters as a liability, the lone woman judge in the Supreme Court justice Gyan Sudha Mishra on Tuesday said she regarded her children as her biggest assets. "An innocuous and honest statement of accounts has been used to misrepresent my views on gender issues, without even caring to check with me," she said.

Responding to a news item in an English daily on her mandatory declaration of assets and liabilities, justice Mishra said, "Declaration of my financial liabilities regarding my unmarried children comes from my intent to save and make provisions for their weddings. This can't be misconstrued as treating my children as liabilities."

The judge said merely because she was a mother who only had daughters and no sons, nobody had the right to misinterpret her views.

"The views have been wrongly attributed to a sitting Supreme Court judge, which might create an incorrect impression in the minds of people. Let there be no doubt in anybody's mind about the apex court's stand on gender equality."

Asked why did she mention the marriage of her daughters in the liabilities column of her declaration, the judge replied, "The expenses involved at the time of a son/daughter's marriage can have financial implications. It is an event of financial consequence. The mere mention of daughters should not lead anyone to bring issues of gender bias and treatment of daughters as liabilities."

She pointed out that her declaration on the Supreme Court website also mentions the loan taken for the education of her children.

"An education loan being a liability does not mean education is also a liability. Education is an asset although expenses incurred on gaining that asset is a financial liability, similarly expenses incurred on a wedding has financial implications," the judge said. 

"If I had sons instead of daughters, and had made a similar declaration, would gender discrimination and treating sons as a liability provided some fodder for discussion?" she asked.

PROFESSIONALS .. The way of life ... some times everybody ask me about my profession.. than i simply react i am an Advocate... ohh are you advocate ? than I have some doubts about this things , that things, how can i proceed ? Is it necessary to file the suit? than we will file the suit before the court.... these are the various types of questions i have faced from the people . In my view "Court is the Last option "  Lots of problems, disputes, disagreements can be solved in our day today life without knocked the door of the court. With these intention a small attempt to spread the legal Knowledge, Updates, Recent amendments,Land mark decisions and much more...