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How police custody is different from judicial cust...

    How police custody is different from judicial custody    ©Two type of custody:-                               1) police custody                               2) judicial custody1) police custody: police custody means that police have a physical custody of the accused while judicial custody means an accused is in the custody of the court .in the former ,the accused is lodged in lock-up of a police station Earlier accused were afraid of police custody as they were subjected to harassment and physical torture but such incident have become fewer after the SC judgements enumerated the rights of accused and brought many police officers to task for custodial torture . resourceful   accused , politicians as well as others, certainly enjoy immunity from third degree “ or, to use  americanese, enhanced interrogation methods ”  After lodging of an FIR for a cognizable offence (which provides for punishment of more than 3 years ) police arrest the accused to prevent him from tampering with evidence or influencing witnesses .within 24 hours of arrest , police produce the accused before a court ( mandatory under law ) and seek his remand to police custody to enable it to complete investigations expeditiously it is for police to decide how long it is warranted to keep the accused in its custody , which expires in 15 days . 2) What is judicial custody ? In serious offences , the court may accede to police request to remand the accused in judicial custody after the expiry of police custody so that evidence or witnesses are not tempered with law mandates filling of charge sheet in criminal cases within 90 days , if the charge sheet is not filed within 90 days the court normally grants bail to the accused . but in heinous crime / offences , like murder and rape . the accused is normally kept in judicial custody (kept in jail under the court’s custody ) for a longer time despite filing of the charge sheet so that the process of trial is not influenced .  The judicial custody may be of 60 days for all other crimes if the court is convinced that sufficient reasons exist, following which the accused or suspect must be released on bail by adv rameshwar y dadhe

Posted By

Rameshwar Dadhe

2 days ago

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FATHER’S CUSTODY RIGHTS IN INDIA

 The issue of ‘Child Custody’ crops up during divorce proceedings or judicial separation; it becomes an important issue to be decided by the courts. It refers to the process of controlling, caring and maintenance of the child less than 18 years of age by the custodial parent (the rights have been granted by court) under set parameters such as financial security, understanding with child, lifestyle, etc. The prime rights of nurturing the child with respect to education, development, medical, emotional, physical, etc. lies with the custodial parent while the non-custodial parent only holds the right to access and meet the child. In innumerable cases, both the parents are provided with access to the child, but the physical custody of the child is usually granted to one parent. The Family Courts while deciding on this need to keep the best interests of the child as of paramount importance.What is the Definition of Legal Custody?In a family law context, “Legal Custody” is a type of Child Custody that grants a parent the right to make important, long-term decisions regarding their child or children. This may include aspects of the child’s upbringing including:EducationMedical and dental careReligious upbringingFinancial decisionsTypes of Child Custody in India:-The Judiciary in India, in a number of innumerable judgments, has held the view that the best interest of the child in Child Custody cases, needs to be given utmost importance, surpassing all the legal provisions laid down. The court grants the right to child custody either to one or both the parents under certain rules and regulations. Evaluating the sensitivity in this matter, the Indian Law allows parents to seek Child custody as per its below mentioned forms, They are:Physical Custody: In physical custody, a child lives with the custodial parent and undertakes all the day to day activities.Joint Physical Custody: In joint physical custody the child lives with both the parents for a significant time period. In such a set-up, both the parents have equal rights on their child.Sole Custody: In Sole custody, the entire right to live with the child lies in the hands of one parent only. This often happens in cases where in the other parent is abusive, instable, violent or incapable in nature.Third Party Custody: In third party custody, none of the biological parents have any right on the child. Instead, the child custody is granted to the third person by the court. What the Legislation has a say about Child Custody?As per the Hindu Minority and Guardianship Act, 1956 the Hindu child below the age of 5 years shall be kept under the custody of the mother as till this age it is only the mother who can give proper emotional, moral as well as physical support to the child.The custody of a boy or an unmarried girl below the age of 18 years and above the age of 5 years shall be given to the father of the child as he is considered to be the natural guardian and only after his death, the custody shall be given to the mother.In case the child is illegitimate then the custody shall be with the mother itself.If the parents are not willing to take the custody of the child or if the court thinks that for the welfare of the child it would be better if he is not kept under the guidance of the parents then even a third person may be allotted the custody of a Hindu child. In this case usually, the grandparents are that paternal or maternal will be preferred to get the custody of that Hindu child if they are interested.If neither the parents nor any of the close relatives of the child are initiating to take the custody of the child then the court by itself shall find an appropriate person who could take the custody of the child.Which Parent Can Be Granted Legal Custody?At the present time, most courts attempt to grant both parents equal rights with regards to legal custody. This is to help the child interact with both parents rather than just one. However, in some cases, the court may grant only one parent legal custody. This is especially true where one of the parents is deemed unfit to make decisions on behalf of the child.When determining which parent should be granted legal custody, the courts may consider many different aspects, including:The parent’s mental, physical, and emotional ability to make legal decisions on behalf of another personThe relational history between the child and the parentWhether there has been any history of abuse, neglect, or other violationsThe arrangement between the parents regarding distribution of physical custodyWishes of the minor child, if he can form opinion on his own.Financial status of both the parents.As with any child custody decisions, legal custody determinations are made with the “best interests of the child” in mind. This means that the needs of the child take preference over any personal desires or intentions of either parent.Child Custody for Fathers: How can a Father Get Full Custody of His Child?When it comes to father custody rights, various questions can arise.Custody battles for fathers can sometimes be challenging. While most courts have discarded older notions that the mother is automatically the primary caregiver, many mothers and other persons in society still hold these types of notions, but there are some situation when a father can claim custody or even full custody of child by proving any of the following reasons given under. Father Gets the Custody In The Following Manner:-In India, it is believed that no one can be a better caregiver than a mother. Unfortunately, it is not true all the time.Though while giving the custody the mother is given the first priority, the father can get it by following ways:1.     If the mother is willing to give up the custody of the child, then the father may get custody.2.     If the mother is not mentally stable, the father is the next person to get custody of the child.3.     If the child is of 13 years or more and expresses his wish to stay with the father, the Court shall grant it to the father.4.     In case the mother is of an immoral character, which may affect the child as well, the father gets the custody.5.     If the father can prove the financial incapacity of the mother which shall in future affect the upbringing of the child and also prove his financial capability to take good care of the child. 6.     If the father can prove that the background of the mother has been in dark and that if the child will stay with the mother it will prove to be fatal to the upbringing of the child or shall affect his mental and physical growth. 7.     If the mother is a convict herself, the custody of the child shall thereafter go to the father. Although the above – mentioned points are few of which are used in the court to get custody. The same is not exhaustive and can vary depending from case to case on the basis of facts and circumstances.Can a Father Fight for Child Custody If He Is Not on the Birth Certificate?Whether or not a father’s name is listed on a birth certificatecan have significant impacts on their custody rights. In most cases, if the person’s name is listed as the child’s father on their birth certificate, courts will automatically conclude that they are the child’s legal father. They will then be granted various custody rights as the legal father of the child. In many cases, even if the person is not the child’s biological father, if their name is listed on the birth certificate as their father, courts may still grant them custody rights. They may also impose various duties on them, such as the duty to pay child support if this arises in the future. If the father’s name is not on the child’s birth certificate, they may often not be granted any custody rights over the child, whether partial or full custody. If they wish to gain legal rights, and they are the biological father of the child, they may need to undergo a paternity test to prove to the court that they are the biological father. CHILD CUSTODY LAWS:The law governing Child Custody cases in India, broadly, falls under following Act :-1.     Guardian and Wards Act, 18902.     Section 26 of Hindu Marriage Act,19553.     Hindu Adoption & Maintenance Act,19564.     Section 38 of Special Marriage Act, 19585.     Hindu Minority and Guardianship Act, 19566.     Custody Under Muslim Law7.     Custody Under Hindu Law PLACE WHERE CHILD CUSTODY CASE IS FILED:-Child custody cases are filed in the jurisdiction of the family court/competent court where minor child ordinarily resides. For example, father is living in Mumbai. Mother is living in Delhi along with minor child. If father wants to file Child Custody, he has to file the same only in Delhi. Thus, family court or concerned competent court shall have the exclusive jurisdiction over the child custody to the exclusion of all other courts.PROCEDURE TO FILE CHILD CUSTODY CASE:-A petition for child custody or declaration regarding appointment of natural or legal guardian of minor starts child with the filing of the petition by the spouse seeking child custody  application for Interim or Temporary custody as well as Visitation Rights.Custodial parent is required to give response to the petition following which evidence are led by both parents. After closure of evidence of by both parents and their respective witnesses, if any, follows with final arguments and consequent judgement.As stated above in certain situation and exigencies a writ petition under article 32 of the Constitution of India can be filed in the Supreme court or a write petition under article 226 of the Constitution of India can be filed. Key points:Child custody cases are emotionally taxing for parties, concerned counsels, as well as the Judge(s).Generally, the age of majority is eighteen years and in some cases it is twenty-one years.Nowadays courts often take the helps of experts such as counsellors, psychologist or other specialist dealing with issues of child custody.It is extremely interesting to note that all judgements that attain finality bound parties with the final outcome. However, the decision or the judgements of child custody cases are never final. It is a departure from the general law. To explain further, Custody of Child has been awarded by judgement or by mutual consent to one of the parent. However, the welfare of the child is prejudiced by the acts and omission of the custodial parent .CONCLUSION:-For a father, custody can be difficult to win, even though the courts do not discriminate against fathers. Whether you are a father going for full custody or joint custody,youshould be prepared for a difficult child custody battle,especially if the child's mother is also fighting for custody. Consider the following tips to help a father get custody.1.    Pay child support payments within time.2.    Build a strong relationship.3.    Give respect to the child and as well the mother.4.    Maintain accurate records.5.    Attend important school and social gatherings.6.    Make sure everything you are doing is for providing good life to your child.Children are mostly attached with their mothers, so when a father wants to have a custody or full custody he must think about his child’s wish and definitely what is good for their children’s life because custody battels are already traumatic and exhausting experience for a child to go through, so the first priority of a father should be to make sure that everything he is doing  for their children is to provide happiness and good life.

Posted By

Mrighankhi Chakraborty

3 days ago

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Consult Top Cheque Bounce Lawyers in India

Mrighankhi  Chakraborty

Mrighankhi Chakraborty

Advocate
Exp
Kolkata , West Bengal

Specialization

  • Cheque Bounce
  • Divorce
  • Family
  • Domestic Violence
  • Property
Hi, This is Mrighankhi Chakraborty I have graduated from University of Calcutta and I am a practicing Advocate. I deal mostly with Divorce cases with exp of 1-1.5yrs. My prime area of expertise is in matters related to Family Disputes, Divorce, Domestic Violence, etc View Full Profile
Total Answers Given : 70
Mural Krishnan  Sanjeevi

Mural Krishnan Sanjeevi

Advocate
Exp
Chennai , Tamil Nadu

Specialization

  • Cheque Bounce
  • Divorce
  • Muslim Laws
  • Child Custody
  • Civil
Am 10 years experienced lawyer in all the legal matters. My goal is to provide the best legal and practical solutions to my clients. My are of practice are Arbitration, Anticipatory Bail, Bail , consumer dispute, Divorce. View Full Profile
Total Answers Given : 28
Fareed  Ahmed

Fareed Ahmed

Verum Legal Associates - Partn
Exp
Mumbai City , Maharashtra

Specialization

  • Cheque Bounce
  • Civil
  • Debt And Lending Agreement
  • Financial Markets And Services
  • International Laws
Total Answers Given : 3
Precinct  Legal

Precinct Legal

Partner
Exp
Bangalore , Karnataka

Specialization

  • Cheque Bounce
  • Bankruptcy and Debt
  • Civil
  • Contracts and Agreements
  • Corporate and Incorporation
Precinct Legal is a full service law firm based out of Bangalore catering to all the legal needs, be it litigation or corporate. View Full Profile
Advocate Rajat Bansal & Associates

Advocate Rajat Bansal & Associates

Advocate
Exp
Lucknow , Uttar Pradesh

Specialization

  • Cheque Bounce
  • Divorce
  • Family
  • Property
  • Arbitration And Mediation
Advocate RAJAT BANSAL & Associates is Lucknow based Law firm headed by Rajat Bansal Advocate. It is practicing in all aspects of litigation and non litigation matters mainly into contract condition, commercial transaction, arbitration, prop View Full Profile
naidu  n

naidu n

Senior Legal Consultant
Exp
Hyderabad , Telangana

Specialization

  • Cheque Bounce
  • Civil
  • Admiralty and Maritime
  • Banking
  • Consumer Protection
We handle following litigations: Admiralty & Maritime, Arbitration, Banking, Business , Company law, Civil , Construction, consumer law, Corporation, Partnership, Criminal, Finance, Foreclosure, Franchise Law, Government, Insurance, Revenue matters, Shipping, Real Estate, Family, Divorce et., View Full Profile
Anilesh  Tewari

Anilesh Tewari

Advocate, Founder AT Law Chamber
Exp
Lucknow , Uttar Pradesh

Specialization

  • Cheque Bounce
  • Real Estate
  • Consumer Protection
  • Contracts and Agreements
  • Arbitration and Mediation
Advocate Anilesh Tewari has been practicing and handling cases independently with a result oriented approach, both professionally and ethically and has now acquired many years of professional experience in providing legal consultancy and advisory services. He is an alumni of Jamia Millia Islamia. View Full Profile
Gayatri  Singh

Gayatri Singh

Advocate
Exp
Lucknow , Uttar Pradesh

Specialization

  • Cheque Bounce
  • Civil
  • Divorce
  • Banking
  • Consumer Protection
I love the work i am doing in life. It brings me across the people who are suffering due to mis-adventure of few individuals. Fighting for them in court is always a treat. View Full Profile
Dev legal Associates

Dev legal Associates

Advocate
Exp
Allahabad , Uttar Pradesh

Specialization

  • Cheque Bounce
  • Criminal
  • Banking
  • Divorce
  • Family
Client satisfaction" is the cornerstone of the our Firm work". We are 10 members team of Lawyers Working Together .Civil Lawyers associated with us having of More that 35 year of Experience.It is a Juri of Experienced Lawyer. View Full Profile
Kishan Dutt Kalaskar Retired Judge

Kishan Dutt Kalaskar Retired Judge

Retired Judge
Exp
Bangalore , Karnataka

Specialization

  • Cheque Bounce
  • Civil
  • Criminal
  • Divorce
  • Domestic Violence
Retired Judge 20 years service as Judge in different capacities. Read and prepared Head Notes for more than 10,000 judgments of different High Courts and Supreme Court. Head Notes published by various Law Publishers. Now preparing Head notes for www.scconline.com. Worked in different capacities an View Full Profile
Total Answers Given : 4280
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Common Questions for Cheque Bounce

  • What is cheque bounce?
  • What are the ways or reasons that a cheque can bounce for?
  • What happens when there is cheque bounce?
  • Who is liable to pay in case of Cheque bounce?
  • What is legal recourse for cheque bounce for the payee and for the payer?
  • What is the maximum penalty and punishment for cheque bounce?
  • Can out of court settlement happen in case of cheque bounce case?
  • Will cheque bounce case still hold good when the issuer has gone bankrupt?
  • Can I pay the amount while the case is going on, and get the case closed?
  • Will marking a cheque STOP amount to cheque bounce?
  • Can I get arrested for cheque bounce?


Cheque bounce stall the normal transactions in commercial world and thus hinders the growth in business. Since it affects the business cycle in a big way, so the lawmakers have made the cheque bounce as criminal offence and punishable act.

Vidhikarya will help you find a most suitable lawyer, for you in your city, who will be able to answer all your cheque bounce related queries, whether you are the issuer of the cheque or payee, and also guide you on how to resolve this matter with ease.

About the Cheque Bounce Laws


A bounced cheque or a dishonoured cheque is a situation wherein the payer’s Bank abstains from making the payment to the payee for different reasons like mismatch in the signature/account number, insufficient funds in drawer’s account, etc. Bouncing of cheques is a statutory offence (criminal offence), and there are legal conditions to be followed in the event of a cheque bounce.

Once a cheque bounce has happened and the payee has initiated a case then the defaulter has no option but to either pay the amount with in the stipulated time or else defend the case in the court. In either case he has to engage a lawyer to help him sail through this legal tangle.

So, what Vidhikarya can do for you is that it will help you in finding and engaging a right and suitable lawyer for your cause.

We at Vidhikarya endeavour to help you and assist you in finding the right lawyer in your city or otherwise so that you can go ahead and peacefully get your legal matter resolved. You do not have to worry on how to hire a lawyer or find an advocate for your matter. You can simply dump the question of “find an advocate in my city” to Vidhikarya and just relax.

What the cheque bounce law is and what it does?


Section 138 of the Negotiable Instruments Act 1881
Section 138 of the N.I. Act makes dishonour of cheque for insufficiency of funds a statutory offence. As per this provision, bouncing of any cheque issued for a legally enforceable debt or liability can be a ground for a lawsuit with certain conditions.

Conditions for applicability of Section 138 of N.I. Act
Cheque must be drawn within a period of three months from the date it’s drawn or within the period of its validity, depending on whichever date is earlier.

The holder (one who was supposed to get the money after depositing the cheque) has to demand for the payment of the bounced cheque within 30 days from the day when he was made aware about the return of the concerned cheque as unpaid.

The drawer of the cheque must have failed to make payment of the concerned amount to the payee within 15 days from the date of receiving the ‘Notice’ spoken of in the above point.

The debt must be a legally enforceable debt, the burden of proof of proving the illegality of the debt lies on the drawer of the cheque.

What are the applicable laws to Cheque bounce?


Indian Penal Code, 1860
Section 420 of the Indian Penal Code may be attracted:

Supreme Court in the case of ‘Sangeetaben Mahendrabhai Patel v. State of Gujrat’ has held that simultaneous proceedings under Section 138 of the N.I. Act and Section 420 of the Indian Penal Code(IPC) for a case of cheque bounce is permissible.

However, the dishonest or malafide intention has to be shown by the prosecution to invoke a case under Section 420 of the IPC for an instance of cheque bounce, and this provision does not deal with recovery of money.

Section 138 of the Negotiable Instruments Act 1881
Section 138 of the Negotiable Instruments Act is applicable to cheque bounce case. In fact, this Section of N I Act was specifically enacted to curb the rising cases of cheque bounce which was creating unnecessary roadblocks to the businesses.

Some important facts and cases about and under Cheque Bounce law


The Offence under the Cheque Bounce is compoundable
The offence punishable under Section 138 of the Act of 1881 is primarily related to a civil wrong and the Amendment [The Negotiable Instruments (Amendment and Miscellaneous Provisions) Act, 2002] of 2002 specifically made it compoundable.

The Hon’ble Supreme Court in Damodar S. Prabhu v. Sayed Babalal H., (2010) 5 SCC 663, held that the Accused could make an Application for compounding at the first or second hearing in which case the Court ought to allow the same. If such Application is made later, the Accused is required to pay higher amount towards cost etc. It was also held compounding could not be permitted merely by unilateral payment, without the consent of both the parties.

No need of “mens rea” or guilty mind to be proved
In Mayuri Pulse Mills v. Union of India, Court held that for an offence under Section 138 of N.I. Act, mens rea is not essential as the section brings into operation the rule of strict liability.

Jurisdiction for filing a cheque bounce case
In Dashrath Rupsingh Rathod v. State of Maharashtra it was held that a complaint regarding “dishonour of a cheque” can be filed only in the Court within whose local jurisdiction the offence was committed, i.e., where cheque was dishonoured.

Technical Reasons can not be grounds for Cheque Bounce case
Reason for the bouncing of cheque should not be of a technical nature, as technical irregularities are not covered by the provisions of Section 138 of the N.I. Act. For example, bouncing of a cheque due to incorrect date entered, or due to discrepancy between amount in words and figures, not being in MICR form, etc.

Important Procedures under Cheque Bounce law


  1. Cheque must be presented to the bank for payment within a period of three months (earlier it was 6 months) from the date mentioned on the cheque.
  2. In case the cheque gets bounced, the holder of the cheque should ask the payer or issuer for the payment by giving a legal notice to the drawer in writing within 30 days of the receipt of information of non-payment by the bank.
  3. Even after receipt of notice if the drawer of the cheque fails to make the payment within the stipulated time, which is 15 days from the receipt of notice then the cheque holder or the payee can move the court.

Reliefs available under Cheque Bounce Laws


Fine and Punishment under Section 138 of the N.I. Act
Punishment for the above-mentioned offence is a fine which may extend to twice the amount of the original cheque or imprisonment for a term which may be up to two years or both.

Interim Compensation can be ordered
Court can pass an order to pay interim compensation during the pendency of the court. (This law is getting enacted)

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