Tuesday, February 28, 2017

How to deal with cheque bounce cases?

Cheque bounce is one of the most frequent offences in the country, with over 40 lakh pending cases in the Supreme Court. We see a lot of people facing the incidents of ‘cheque bounce’ in our daily lives. In view of demonetization and the move towards cashless transactions, the Govt is mulling changes in the law to make the harsher punishment for 'cheque bounce' cases.

Cheque is a kind of bill of exchange and is enclosed the Negotiable Instrument Act (hereinafter referred as the Act). In India, Cheque bounce is a criminal offence.
Cheques are issued for the reason of securing proof of payment. However, cheques remain a reliable method of payment for many people. Crossed and account payee cheques are not negotiable by any person other than the payee.  It has to be deposited into his bank account. It is always advisable to issue crossed “Account Payee Only” cheques in order to avoid its misuse.  It may be better to date the cheque invariably.  A cheque is valid for six months only, from the date specified in the cheque for payment.  After the period of six months, that cheque may be named as a ‘stale cheque’. Blank cheques are not advisable.

A cheque may bounce due to insufficient funds, the amount mentioned in the cheque exceeding the amount which has been arranged to be drawn from the account by virtue of a prior arrangement or any other technical reason, such as signature mismatch, both the defaulter and the payee are charged by their respective banks.

If the cheque gets bounced, send a demand notice to the drawer, alarming to take up proceedings if the amount due is not paid. The warning of prosecution usually ends in prompt settlement (if the drawer is an individual, the proceedings would occur under Section 138 of the NI Act. Also in the case of a company, its managing director can be personally prosecuted under Section 141).  It must be sent within 30 days from the date you identified that the cheque has bounced. There is no prescribed format for this notice. The purpose of this notice is to demand payment and inform the issuer that if payment is not made within 15 days, the person will be prosecuted.

After the demand notice has been sent, the drawer asks you to present the cheque again and the validity of the cheque remains it is yet again dishonoured, the drawer’s time limit under the demand notice does not raise. The dishonour of a cheque due to stopped payment is also covered under Section 138 of the NI Act.

Bank Penalty

For most banks, the penalty charges for cheque outward return are close to Rs. 300, while charges for cheque inward return are about Rs. 100. The penalty charges change from one bank to another and are different for different account types. Premium accounts mostly have higher penalty charges. A bounced cheque can dent the financial credit history of a drawee.

 Impact on CIBIL Score

A CIBIL score is critical for your business since it can invariably affect your equation with the investors or the banks when you approach them for your loan in the future. Even a single bounce can impact your CIBIL score.

Which court to be approached?

As per the second ordinance related to Negotiable Instrument Act the accuser can approach the court under whose jurisdiction the bank, where the cheque was presented. But before approaching the court of law make sure that the bounced cheque would have been issued for the discharge of legal duty and must not have been given as a gift, donation and check the validity of cheque. Only that cheque which has legal obligation can be enforced in the court of law.

Punishment & penalty

On receiving the complaint, along with an affidavit and relevant paper trail, the court will issue summons and hear the matter. If found guilty, the offender can be punished with a monetary penalty of twice the amount of the cheque or imprisonment for a term which may be extended to two years or both. Also, the bank has the right to stop the cheque book facility and close the account for repeat offences of bounced cheques.
The drawer gets 15 days time from the date of receipt of the notice. If the drawer does not pay till the expiry of the 15 days time, the payee can proceed to file a complaint in the court of the Jurisdictional Magistrate within one month from the date of expiry of 15 days prescribed in the notice.

[1] 1999 ISJ (BANKING) 0433; 1999 (1) APEX C.J. 0624; 1999 AIR (SCW) 1637
[2]  (1999) BANKING CASES (BC) 133 (17/03/1998
[3] (1997) 89 COMPANY CASES 663 (10/01/1997)

 Procedure to file a complaint

One can file a suit for recovery of the cheque amount along with the cost & interest under order XXXVII of Code of Civil Procedure,1908,(which governs the suit in summary trial) and can also file a criminal complaint u/s 138 of Negotiable Instrument Act for punishing the signatory of the cheque for having committed an offence. This action can be taken only after giving prior notice to the other party and after the expiry of 15 days after the notice has been received by the drawer.
But if the payee justifies the delay with sufficient reasons, he may make an application before the magistrate along with the complaint and seek to condone of delay.  Perception of the complaint may be taken if the Court is satisfied that the payee had sufficient reasons for the delay in filing the complaint within the prescribed period. Must consult an accomplished lawyer in this field.

In case you do not file criminal charges against the issuer, accused can get away with only a small fine paid to the bank for a bounced cheque. However, if you file a civil or criminal case against accused, the NI Act, 1881 would apply.
Section 138 of the Act states that any bounced cheque is punishable under the Act and can lead to up to two years of imprisonment, a monetary refund or both.
According to RBI guidelines, banks can stop issuing cheque book facilities to any customer booked for a bounced cheque. The minimum stipulated rate of offence is set as at least four times on cheques valued over Rs.1 crore.

 We do not guarantee the accuracy or completeness of information given here.
Never rely upon information in this article in place of seeking professional legal advice. It is always preferable to locate an attorney who has specialized in the respective field. Start a search for best lawyers in your town and get your legal answers in minutes. For online legal consultance from the best lawyer for cheque bounce cases, you can visit the biggest online legal solution www.licit.ooo or can download the app  https://goo.gl/L8GeYk

Wednesday, February 22, 2017

Know your rights: Sex discrimination and sexual harassment at work

Safety of women matters a lot whether at home, outside the home or working place.
In today’s world where everyone is talking about the empowerment of women and making them visible on the Boards of Organizations/Companies and at other higher positions etc., on the flip-side we find that women are not safe even at their work place. Industries predominantly functions during the night and a high percentage of women are employed, security and transport have come to detracting areas. Especially, for small businesses, it's a lot harder to invest in security. It's a question that employers are considering before hiring women. But while the country is debating the issue, there is now more pressure on employers to ensure the safety of their workforce.

Taking a cue from the noted Vishaka case of 1997, Indian Parliament has legislated Sexual Harassment of Woman at Workplace (Prevention, Prohibition and Redressal) Act, 2013.The Act will ensure that women are secured against sexual molestation at the work places and a realisation of their right to gender equality, life and liberty and equality in working environment in all places. It extends to the whole of India. It shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint. The sense of security at the workplace will improve women's participation in work, resulting in their economic empowerment and inclusive growth. The Act makes it necessary for all offices with 10 or more employees to have an internal complaints committee to address complaint in a specify time or face penalty.

According to a FICCI-EY November 2015 report, 36% of Indian companies and 25% of MNCs are not compliant with the Sexual Harassment Act, 2013. The government has warned to take serious action against employers who fail to obey law.

In a written reply in Lok sabha, Maneka Gandhi, Women and child development Minister stated that around 57 cases were reported at office premises and around 469 cases outside office related to work during 2014. This indicates a rapid increase in the cases of such nature and it can rectify only with the help of implementing various mandatory rules and regulations inside office premises. Gender equality is not only a fundamental human right, but must be the first step towards women empowerment in the society.

The proportion of women facing harassment is higher among the youngest workers. In a recent survey held, nearly two-thirds of the 138 women aged between 18 and 24  said they had been sexually attacked at work. Young women were often on contracts, such as temporary agency contract or zero-hours contracts, new in the workplace and in more junior roles have mostly faced an incidence of sexual harassment, but doesn’t have the confidence to report against superiors.

Sexual harassment at work can take many forms, includes any avoidable sexual advances either verbal or through gestures or through use of sexually suggestive or pornographic material, and includes amongst others; whistling, sexually slanting and obscene remarks or jokes; comments about physical appearance; demands for sexual favours; threats, innuendoes; avoidable physical contacts, touching, patting, pinching; physical assaults and molestation of and towards women workers by their male colleagues, or any one who for the time being is in a position to sexually harass the women.

If the following circumstances exist in relation to any behavior, that is, if any act is done under the following circumstances that would also count as sexual harassment:

Implied or explicit promise of preferential treatment in employment
Implied or explicit threat of detrimental treatment in employment
Implied or explicit threat about her present or future employment status
Interferes with work or creates an intimidating/hostile/offensive work environment
Humiliating treatment likely to affect her health and safety.

Aggrieved Woman means and includes (i)in relation to a workplace, a woman, of any age whether employed or not, who alleges to have been subjected to any act of sexual harassment by the respondent; (ii)in relation to a dwelling place or house, a woman of any age who is employed in such a dwelling place or house;

According to the Act (Section 2f), employee means a person employed at a workplace for any work on regular, temporary, adhoc or daily basis, either directly or through an agent, including a contractor, with or, without the knowledge of the principal employer, whether for remuneration or not, or working on a voluntary basis or otherwise, whether the terms of employment are express or implied and DRAFT Page | 7 includes a co worker, a contract worker, probationer, trainee, apprentice or called by any other such name.

Who is an employer? Employer means:
(i)in relation to any department, organisation, undertaking, establishment, enterprise, institution, office, branch or unit of the appropriate Government or a local authority, the head of that department, organisation, undertaking, establishment, enterprise, institution, office, branch or unit or such other officer as the appropriate Government or the local authority, as the case may be, may by an order specify in this behalf;

(ii)in any workplace not covered under sub-clause (i), any person responsible for the management, supervision and control of the workplace

(iii)in relation to workplace covered under sub-clauses (i) and (ii), the person discharging contractual obligations with respect to his or her employees;

(iv)in relation to a dwelling place or house, a person or a household who employs or benefits from the employment of domestic worker, irrespective of the number, time period or type of such worker employed, or the nature of the employment or activities performed by the domestic worker;

In relation to workplace which is established, owned, controlled or wholly or substantially financed by funds provided directly or indirectly by the Central Government or the Union Territory administration it is the Central government, while those by the State Government, it is the State Government. In relation to any workplace not covered as per the above, and falls within its territory, the appropriate Government means the State Government. (Section 2b of the Act)

Workplace according to the Act includes (Section 2o)

(i) Any department, organization, undertaking, establishment, enterprise,
institution, office, branch or unit which is established, owned, controlled or
wholly or substantially financed by funds provided directly or indirectly by the
appropriate Government or the local authority or a Government company or a
corporation or a cooperative society

(ii) Any private sector organisation or a private venture, undertaking, enterprise, institution, establishment, society, trust, non governmental organization, unit or
service provider carrying on commercial , professional, vocational, educational,
entertainmental, industrial, health services or financial activities including production, supply, sale, distribution or service
(iii) Hospital or nursing homes
(iv) Any sports institute, stadium, sports complex or competition or games venue,
whether residential or not used for training, sports or other activities relating to it

(v) Any place visited by the employee arising out of or during the course of employment including transportation provided by the employer for undertaking such journey
(vi) A dwelling or a house

What are the duties of the employer?
As per Section 19 of the Act, every employer shall:

(i) Provide a safe working environment at the workplace which shall include
safety from the persons coming into contact at the workplace
(ii) Display at any conspicuous place in the workplace, the penal consequences of
sexual harassments and the order constituting the ICC*(Internal complaints committee formed by an employer)
(iii) Organize workshops and awareness programmes at regular intervals for
sensitising the employees with the Act
(iv) Organize orientation programmes for the members of the ICC
(v) Provide necessary facilities to the ICC or the LCC*(Local Complaints Commitee formed by the district officer) for dealing with the complaint and conducting an inquiry.
(vi) Assist in securing the attendance of respondent and witness before the ICC or
the LCC
(vii) Make available such information to the ICC or the LCC with regard to the
(viii) Provide assistance to the woman if she chooses to file a complaint under IPC
or any other law
(ix) Cause to initiate action under the IPC or any other law against the
perpetrator or if the aggrieved woman so desires, where the perpetrator is
not an employee, in the workplace at which the incident of sexual harassment
took place
(x) Treat sexual harassment as misconduct under the service rules and initiate
action for such misconduct
(xi) Monitor the timely submission of reports by the ICC
An employer can be fined Rs 50,000 in case of violation of his duties under the Act.

How to File Complaint:

An aggrieved woman can file a complaint within 3 months of the incident (or later if allowed by the committee) and in case of a series of incidents, within a period of three months from the date of last incident. Where the aggrieved woman is not able to make a complaint on account of her physical or mental incapability or death or otherwise, her legal inheritor or such other person as may be recommended may make a complaint under this section.

Where the Internal Committee or the Local Committee, as the case may be, arrives at a conclusion that the allegation against the respondent is malicious or the aggrieved woman or any other person making the complaint has made the complaint knowing it to be false or the aggrieved woman or any other person making the complaint has produced any forged or misleading document, it may recommend to the employer or the District Officer, as the case may be, to take action against the woman or the person who has made the complaint under sub-section (1) or sub-section (2) of section 9, as the case may be, in accordance with the provisions of the service rules applicable to her or him or where no such service rules exist, in such manner as may be recommended.

Each individual has the right to work in an environment free from humiliating sexual harassment. But, significant figures of women are facing several obstacles in their life and career, due to the gender discrimination of the culture that is being followed nowadays. The Act provides for mandatory “Sexual Harassment Policy” and constitution of “Internal Complaint Committee” to look after the offences of harassment at work place for every organization where women are working, but many organizations do not following the same and this needs to be altered at the earliest. The Government must create appropriate system to track the implementation of this legislation at every organization to achieve the goal of these legislative reforms.

It’s time to stand out against sexual violence, Consult with experienced sexual assault lawyers. Use the largest online lawyers directory www.licit.ooo or download the LICIT app from playstore to quickly find detailed profiles of attorneys in your area.

Friday, February 10, 2017

The facts you should know about Medico legal cases!

 A Medico-Legal Case can be defined as a case of injury or ailment, etc., in which investigations by the law-enforcing agencies are essential to fix the responsibility regarding the causation of the injury or ailment. In simple language, it is a medical case with legal implications for the attending doctor where the attending doctor, after eliciting history and examining the patient, thinks that some investigation by law enforcement agencies is essential. Or a legal case requiring medical expertise when brought by the police for examination.
In any of the medico-legal cases, it is the legal duty of the treating doctor to report it to the nearest police station immediately after completing primary lifesaving medical care. This is in accordance with Section 39 of Criminal Procedure Code of India. The idea is to initiate the legal proceeding at the earliest is so that maximum evidence can be collected by the police officer.  Quick action by the police also helps to avoid the destruction of evidence by the treating physician.
The following cases should be considered as medico-legal and as such the medical officer is "duty-bound" to intimate to the police regarding such cases:

·         All cases of injuries and burns -the circumstances of which suggest commission of an offense by somebody. (irrespective of suspicion of foul play)
·         All vehicular, factory or other unnatural accident cases specially when there is a likelihood of patient's death or grievous hurt.
·         Cases of suspected or evident sexual assault.
·         Cases of suspected or evident criminal abortion.
·         Cases of unconsciousness where its cause is not natural or not clear.
·         All cases of suspected or evident poisoning or intoxication.
·         Cases referred from a court or otherwise for age estimation.
·         Cases brought dead with improper history creating suspicion of an offense.
·         Cases of suspected self-infliction of injuries or attempted suicide.
·         Any other case not falling under the above categories but has legal implications.

 In a country where 130,000 deaths occur annually due to road traffic accidents and 53% women suffer from domestic violence leading to grave injuries, it is important that hospitals and the law work hand in hand to help the injured. Our legal system has grown in leaps and bounds from 1989 when people would lose their lives waiting for treatment and the ‘right to life’ act was formed in the same year.  The law states that concerns like legal formalities, monetary considerations or even the infrastructural restraints of the institution should not prohibit the institution or hospital from providing basic and emergency medical treatment.
It was not long back a youth, severely injured after being hit by a speeding KSRTC bus at Koppal, Karnataka died in hospital simply because he didn't get timely help from the public. Even though the hospital was just a stone's throw from the accident spot, but people watched Anwar writhing in pain and some even used their cell phones to shoot pictures and videos. None of them tried to shift him to a hospital. Common people still have the fear that they will be tied in these cases due to unawareness in MLC. Instead of merely berating such callous and inhuman attitude among the public, there is an urgent need to create awareness that almost 50% of the accident victims have excellent chances of survival if they get immediate attention and treatment. Anyone near the accident site can call helpline 108 or 104 for ambulance, and the victim will be taken to the nearest hospital for emergency treatment free of cost. Hospitals are required to make admission irrespective of whether it is a medico-legal case and the government will reimburse the cost of treatment up to Rs 25,000.
Lately, Indian society is experiencing a growing awareness regarding patient's rights. This trend is clearly discernible from the recent spurt in litigation concerning medical professional or establishment liability, claiming redressal for the suffering caused due to medical negligence, vitiated consent, and breach of confidentiality arising out of the doctor-patient relationship. In order to prove that medical malpractice occurred, the patient must be able to show all of these things:
·         A doctor-patient relationship existed.
·         The doctor was negligent.
·         The doctor's negligence caused the injury.
·         The injury led to specific damages.
·         Failure to diagnose.
·         Improper treatment.
·         Failure to warn a patient of known risks.

 The complaint against medical negligence can be filed as mentioned below.
·         In The District Forum if the value of services and compensation claimed is less than 20 lakh rupees,
·         Before the State Commission, if the value of the goods or services and the compensation claimed does not exceed more than 1 crore rupees.
·         In the National Commission, if the value of the goods or services and the compensation exceeds more than 1 crore rupees.
Medico-legal cases have to be dealt with properly, following the institution’s prevailing guidelines. Usually, all the big hospitals and the teaching institutions have an ‘institutional medico-legal manual’ which gives, in a step-wise detail, the correct procedure for dealing with the various kinds of MLCs. Even if such manuals are not available, these cases pose no problem if one uses proper caution and due care and attention, while dealing with them. Proper documentation, timely information, a methodical and thorough examination including all relevant investigations and referrals, etc, are all that are necessary to see such cases completed successfully.
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