PART-B
1(a) A issued cheque drawn at Hyderabad in favour of B to discharge dues in respect of a contract executed at Mumbai. B presented the said cheque in a bank at Delhi in which he has account, the same got dishnoured. B got issued legal notice from Delhi to A under Section 138 of the Negotiable Instruments Act. However, A doesn’t respond. In which courts territorial jurisdiction can B file complaint under section 138 of the Negotiable instruments Act and under what provision of law? (4 marks)
Ans: Courts at Delhi alone has jurisdiction as per new amendment.
1(b) B issues notice under Section 138 of Negotiable Instruments Act to A for dishnour of cheque. A requests B to present the same cheque for enashment. B presents the same and again the said cheque get dishonoured. B issues notice under Section 138 of Negotiable Instruments Act to A for dishnour of cheque. B issues second notice to A under Section 138 of the Negotiable instruments Act. Is the complaint under section 138 of the Negotiable Instruments Act basing on the second dishnour of the cheque is maintainable? (4 marks)
Ans: Complaint is not maintainable. Though a cheque can be presented any number of times with in the period of its validity, once notice of demand of cheque amount is given by the payee and received by the maker, then limitation has to be computed from the 16th day of the said notice. The penal law must be strictly interpreted. The N.I. Act demands issuance of notice upon dishnour of cheque and non-payment of money even after receipt of notice within the prescribed time creates offence against the defaulter. This action to launch prosecution is maintainable if it is done within a particular period i.e., thirty days from the date of lapse of fifteen days upon receipt of notice by the defaulter. Hence, complaint based upon second notice is not maintainable. Second notice will not under any circumstances extend the cause of action.
2(a). Discuss the ‘right to be informed of grounds of arrest” under the CrPC? (2 Marks)
Ans: Arrest amounts to deprivation of personal liberty. As such, law specifically both by way of constitution and Cr.P.C recognizes certain rights in favour of the arrested person. They are like this:
1) Article 22 of constitution and S.50 of Cr.P.C says person arrested must be informed as the grounds of his arrest and also to his relatives and friends.
2) Accused shall also be informed his right to release on bail (S.50(2)).
3) He must be allowed to consult a legal practitioner of his choice (A.22 (1) and Secs.303) The arrested person shall be informed his right to consult advocate of his choice. Right of the accused person to get free legal aid & must informed about the same (A.21, S.304).
4) Copies of all documents shall be furnished to him.
2(b). Explain provisions regarding maintenance. Whether divorced wife is entitled for maintenance? Can a Judicial magistrate cancel his own order of maintenance? (2 Marks)
Ans: S.125 Cr.P.C provides speedy, summary, effective and inexpensive remedy for a dependent is unable to maintain her or himself. Dependent means wife, parent or child. This provision applies to person belonging to all religion. The power to grant maintenance is vested with the JMFC. If any person ordered, fails without sufficient cause to comply with the order any such Magistrate, may, for every order, issue a warrant for levying the amount due in the manner provided for levying fines and may sentence such person accordingly u/s 125(3). The claim must be made within one year.
Divorced wife is entitled for maintenance: As per S.125(4) Divorced wife is also entitled for maintenance subject to conditions laid down under this provision. They are:
(a) if she is not remarried or
b) She didn’t receive any sum either under customary or personal law or c) she didn’t voluntarily surrendered her rights to maintenance after her divorce or d) the court didn’t cancel the order of maintenance.
Judicial magistrate cancel his own order of maintenance: Yes, a JMFC, in consequence of any decision of a competent Civil Court, any order made under section 125 should be cancelled or varied, he shall cancel the order or, as the case may be, vary the same accordingly and also as per S.127 (3) Cr.P.C
2(c). Explain the sentence in cases of conviction of several offences at one Trial. (2 Marks)
S: 71: Consists of four paragraphs:
Para 1: It deals with all the acts of an offendor which constitute together only an offence although each of the individual acts also constitutes the same offence.
It refers to illustration (i) of 220Cr.P.C. In such cases, the offendor can be punished only for an offence. Ex-I: A number of blows on one person.
Para:II: A single transaction may give rise to either
(a) Several offences of different character, each complete in itself and distinct from the other.
Ex: Criminal breach of trust and falsification of accounts; House breaking and adultery.
(b) Several offences of the same character but affecting different persons.
Para:III: It corresponds to S.220(4) Cr.P.C. It deals with plurality of acts and applies to cases in which one or more of the acts of the accused in a transaction constitute one offence but all the acts together or combined give rise to different offence.
The same series of acts may constitute different offences. All may be charged, but only one offence can be regarded as committed for the purpose of inflicting punishment.
Ex: Where as persons set a fire to a ware house, here his act is an offence u/s 435 &also u/s 436, and though he may be charged for both, but he cannot be punished for more than one of these offences. Similarly, for driving on a public road so rashly so as to endanger human life and causing hurt, accused cannot be punished for both the offences.
3(a). Define “Common intention” and Distinguish it from “Common object” (2 Marks)
Distinguish between Common object & Common Intention
Ans: S.149 & 34 IPC:
| Common object (S.149) | Common Intention (S.34) |
| To constitute common object it is necessary that the object should be common to the persons who compose the assembly i.e., that they should all be aware of it and concur it .It is immaterial whether the object is in their minds when they come together or whether it occurs to them afterwards. | To constitute common intention it is necessary that the intention of each one of them be known to the rest of them and shared by them .The common intention ought to be determined from such known facts and circumstances which existed before the commencement of the criminal act as the criminal act itself is committed in furtherance of that common intention. |
| In common object there is no prior meeting of minds, unlike in common intention. However it may develop after people assembled together. | There is a prior meeting of minds. |
| Member ship of unlawful assembly is the leading feature of section 149 of IPC. | The actual participation in action is essential element of section 34 of IPC |
| Common object must be one of the objects mentioned in section 141 of IPC, which defines unlawful assembly. | Common intention may be of any type |
| S.149 IPC creates specific offence. | S.34 IPC declares a rule of criminal liability |
| But for the applicability of section 149 IPC at least five persons are required. | Atleast two persons are required to share the common intention under section 34 IPC, |
| Under section 149IPC a person is held liable not only act done in prosecution of the common object of the assembly but also for the acts which were likely to be committed in prosecution of that object. | S.34 every person is equally liable for acts or omissions. |
3(b). Explain the provisions for Assault or Criminal force to women with intent to outrage her modesty? (2 Marks)
Ans: This is dealt under S.354 IPC. As per S.354 IPC whoever assaults or uses criminal force to any woman, intending to outrage or knowing it to be likely that he will thereby outrage her modesty. It is an offence. Convict shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both. The offender can be male or female, but victim shall be female only.
3(c). Explain the punishments to which offenders are liable under IPC and explain the definition of appropriate government in IPC? (2 Marks)
Ans:S.53: The punishments to which offenders are liable under the provisions of this Code are:- 1) Death, 2) Imprisonment for life, 3) deleted 4) Imprisonment, which is of two descriptions, namely:- (1) Rigorous, that is, with hard labour; (2) Simple; 5) Forfeiture of property; 6) Fine.
Appropriate Government: It is defined under S.55A of the IPC. It means,-
(a) Central Government in cases to which the executive power of the Union extends.
(b) State Government in cases to which the executive power of the State extends.