In this article, Himanshi Srivastava of Amity Law School Lucknow discusses Transfer petition in the Supreme Court of India.

Transfer of application as per the provision of Section 25 of the Civil Procedure Code

Section 25 of the Code of Civil Procedure is associate degree enabling provision that empowers the Supreme Court of India to transfer any case, or different proceedings from a court or [any different the other] Civil Court in one state to a different court or other Civil Court in the other state.

According to the Code, this power could also be exercised by the Supreme Court if it’s happy that associate degree order underneath section 25 is expedient for the ends of justice. Therefore wide powers are presented on the Supreme Court to order a transfer of a civil case if the Court feels that the ends of justice shall be met within the explicit circumstances.

In the majority of cases, this provision is invoked in married matters and frequently at the instance of the partner once she is clothed as a respondent in the proceedings initiated by the husband and in cases wherever the parties have separated for married variations and are living in several states. In these types of cases, the partner moves for transfer of the proceedings on the bottom of her inability to defend the proceedings for being not during a position to afford travelling, being not during a position to not leave her child/children behind and on the grounds her personal safety and inconvenience besides expenses. The Court invariably takes a sympathetic read in favor of the partner but, that’s continuously not the case as in some cases the Supreme Court has control that the convenience of the petitioner cannot eclipse the necessity of justice.

The invocation of the jurisdiction for transfer of cases is but not restricted or restricted to married disputes and is feasible for different cases conjointly.

Similarly, Section 406 of the Code of Criminal Procedure empowers the Supreme Court of India to transfer criminal cases and appeal unfinished in one court to a different court or from a Judicature subordinate to at least one court to a different judicature of equal or superior jurisdiction subordinate to a different court.

In each sort of cases associate degree application with official document of the petitioner in conjunction with copy of the case wanted to be transferred is needed to be filed before the Supreme Court of India with a prayer for the transfer of the case to a specific Court in another State and a prayer for keep of the proceedings before the Court below within the case wanted to be transferred.

It would unremarkably take the Supreme Court of India to make a decision associate degree Transfer Petition inside an amount of roughly four to six months’ time once hearing each side on deserves till which era the proceedings before the Court below stay, will be stayed by an order of the Supreme Court.

Firstly the Petition for Transfer of case from one state or city to another state or city was common in the matrimonial matters. The wives have taken many advantages by taking some important grounds for transferring the petition.

Typical grounds taken by wife in the transfer petitions are below:

• Having a child
• Travel is unsafe being a lady
• Expenses required for travel
• Threat to life at Husband’s place
• Husband is very influential in his place
• Inconvenience to travel long distance.

Some of the landmark cases of transfer of cases in matrimonial matters are:-

In Dr. Subramaniam Swamy v. Ramakrishna Hegde,^[1] the Court rules that:

The paramount thought for transfer of a case under Section 25 of Code of Civil Procedure must be the necessity of justice. It was held that the mere convenience of the parties or anyone of them might not be enough for the exercise of power, however, it ought to even be shown that trial within the chosen forum will result in denial of justice. The Court any control that if the ends of justice therefore demand and also the transfer of the case is imperative, there ought to be no hesitation to transfer the case. The proper of the dominus litis to decide on the forum and thought of complainant’s convenience etc. cannot eclipse the necessity of justice. Justice should be done in any respect costs; if necessary by the transfer of the case from” one court to a different.

This provision has been most frequently invoked in matrimonial matters, and usually at the instance of the married woman, once the husband and married women are living separately and the husband files a petition for divorce or institutes alternative proceedings under the law concerning wedding and divorce at the place wherever he is residing, that is sometimes the place wherever the parties last resided along, the wife, who has typically came to her parental home, moves for transfer either on the ground that she cannot afford to travel or that she cannot leave her kid behind or that she faces threats once she goes to defend the proceedings. The Court invariably takes a sympathetic read towards the wife’s plea for transfer, however this is not always the case.

In Kalpana devi Prakash Thakar Vs Dev Prakash Thakar^[2], the Court disallowed the wife’s plea for transfer of the matrimonial proceedings from Mumbai. to Palanpur, Gujarat taking into account the subsequent considerations:

1. The husband was a health care provider and his absence from Mumbai would cause inconvenience to his patients;
2. His previous and unwell mother who. lived with him required regular medical check-ups and constant care;
3. The witnesses were mainly from Mumbai;
4. The wife had relatives in mumbai with whom she could stay .whenever she went there for the case;
5. The husband was ready to bear the expenses of travel and additionally the traveling expenses of the escort.
6. Palanpur was well connected to Mumbai by train.

In Shiv Kumari Devendra Ojha Vs Ramesh Shitla Prasad Ojha^[3], the Court disallowed a woman’s  application for transfer of an application for grant of a succession certificate, from Gujarat to U.P.  Her main plea was that being a woman she was unable to travel from U.P. to Gujarat. The Court disallowed the petition primarily on the ground that the respondent was able to pay” the traveling expenses. The Court further held, that if the petitioner had any issue in participating a counsel as a result of monetary constraints, she may file an application to recover the amounts paid for the same from the respondents, in the trial court at Gujarat.

A couple of issues have arisen within the context of the power of the Court to order transfer under Section 25 CPC often the Court has felt that the parties would be advised to dissolve their marriage by mutual consent, and sometimes.the parties themselves have to be compelled to come to such an understanding. In such a situation, the court has usually permissible the parties to file a petition for divorce by mutual consent.in the Supreme Court itself.

However, some benches have taken the view that this cannot be done and that such a petition will only be filed in the court. It is respectfully submitted that the Court is not even in delegation the parties to the court when both the parties are willing to dissolve. the marriage by mutual consent. It’s exactly in such things that the ability of the Court beneath Article 142 of the Constitution will return to the help of parties, as a result of “complete justice” is then done. the need that the petition for divorce by mutual consent ought to be filed within the Court of District choose or the court, is at the best a procedural matter and doesn’t alter the substantive rights of the parties.

Another problematic scenario which arises typically is when the transfer of a case is sought-after from the State of Jammu and Kashmir. Code of Civil Procedure doesn’t apply to the State and thus the provisions of Section 25 of the Code of Civil Procedure additionally wouldn’t apply.

In Kiran Ramanlal Jani Vs Gulam Kadar, .the petitioner had prayed for transfer of a motor accident claim from Jammu and Kashmir to Gujarat. The Court allowed the transfer petition in the absence of any objection on behalf of the respondents and their non-appearance even when in service. It is, however, submitted that there has to be a sound legal basis for such transfer, when the party wishes a transfer of a case from Gujarat to the State of Jammu and Kashmir, the acceptable course would be to file a petition for special leave under Article 136 against the order directing issue of summons, personal appearance, etc. Once the Court is seized of the matter under Article 136 of the Constitution, it would have power under Article 142 to direct transfer, in order to do complete justice.

A couple of other cases may now be noticed. On a petition under Section 25 of the Code of Civil Procedure, a civil suit pending in the Court of the Subordinate Judge, Patna was transferred to the Mumbai High Court to be tried with another suit pending on the original side of the Mumbai High Court, thereafter the suit in the Mumbai High Court was set and was carried in appeal in the case of Bihar State Food and Supplies Corporation v. Godrej Soaps (P) Ltd. and Sons^[4], a petition under Section 25 CPC was filed for re-transfer of the suit to the Subordinate Judge at Patna on the ground that the purpose of transfer was over since the 2 cases couldn’t currently be tried along. The Court disallowed the petition for transfer and requested the learned decide on the initial side to frame the necessary problems in the suit inside six weeks and thereafter take evidence on a day-after-day basis. The complete evidence and the record of the suit were thenceforth to be transmitted to the Division Bench for thought in conjunction with the sooner suit that had gone in appeal, so those conflicting decisions might be avoided.

In Avtar Singh and Co. Pvt. Ltd. v. S.S. Enterprises^[5], a petition was filed, under Section 25 CPC for transfer of the suit from the Calcutta High Court to the District Court at Kanpur where a suit was already pending. The Court directed the Calcutta suit to be transferred to Kanpur taking under consideration of proven fact that Kanpur suit was filed earlier in purpose of time and that the suit was filed in Calcutta was within the nature of a cross-suit.

Transfer of Application as per the provision under section 406 of Code of Criminal Procedure

Section 406 of the Code of Criminal Procedure provides power to the Supreme Court to transfer criminal cases and appeals unfinished in one high court to another high court or from a criminal court subordinate to one high court to a different criminal court of equal or superior jurisdiction subordinate to another high court. The Supreme Court will act under the section only on the application of the Attorney General or of a party interested. If an application under Section 406 of the Code of Criminal Procedure is dismissed, the Supreme Court may, if it is of opinion that the application was trivial or vexing order the applicant to pay by way of compensation to the respondent such total will not be exceeding Rs 1000.

In Maneka Sanjay Gandhi v. Miss Rani Jethmalani, Justice Krishna Iyer observed as follows:
“Assurance of a fair trial is the first imperative of the dispensation of justice and therefore the central criterion for the court to consider when a motion for transfer is made is not the hypersensitivity or relative convenience of a party or simple handiness of legal services or like mine-grievances. something more substantial a lot of compelling, a lot of imperilling from the point of read of public justice and its attendant surroundings, is needy if the Court is to exercise its power of transfer; this is the cardinal principle though the circumstances may be myriad and vary from case to case.

REFERENCES:

• https://www.netlawman.co.in/ia/transfer-of-petition
• http://www.legalserviceindia.com/Supreme-court/Transfer-of-Petition-in-India.html
• http://lexspeak.in/2016/07/transfer-petition

^[1] AIR 1990 SC 113

^[2] AIR 1996

^[3] AIR 1997

^[4] AIR 1996 SC 336

^[5] AIR 1996 SC 385

In this article, Jagriti Bharti of Amity Law School Lucknow discusses a detailed list of offences under the Motor Vehicles Act, 1988.

References                                                

^[1] 75. Scheme for renting of motor cabs.

1. The Central Government may, by notification in the Official Gazette, make a scheme for the purpose of regulating the business of renting of motor cabs to persons desiring to drive the cabs for their own use and for matters connected therewith.
2. A scheme made under sub-section (1) may provide for all or any of the following matters, namely:
3. Licensing of operators under the scheme including grant, renewal and revocation of such licenses;
4. form of application and form of licenses and the particulars to be contained therein;
5. fee to be paid with the application for such licenses;
6. The authorities to which the application shall be made;
7. Condition subject to which such licenses may be granted, renewed or revoked;
8. Appeals against orders of refusal to grant or renew such licenses and appeals against orders revoking such licenses;
9. Conditions subject to which motor cabs may be rented;
10. Maintenance of records and inspection of such records;
11. Such other matters as may be necessary to carry out the purposes of this section.

^[2] 109. General provision regarding construction and maintenance of vehicles.

1. Every motor vehicle shall be so constructed and so maintained as to be at all times under the effective control of the person driving the vehicle.
2. Every motor vehicle shall be so constructed as to have right hand steering control unless it is equipped with a mechanical or electrical signaling device of a prescribed nature.

In this article, Sachin Vats of RGNUL discusses Foreign Portfolio Investors Regime.

India is one of the fastest growing economies of the world. The maximum percentage of Indian population is youth which makes it a vibrant country full of opportunities. The young demographic profile and innovative minds at work attract the investors from the global world.

There are many economic reforms done by the Indian Government in last two decades to make India a favourite among the global investing communities. The foreign investors are getting attracted with deregulation and opening of the Indian market.

There are two different avenues for Indian companies to raise their debt directly from non-residents. They can either go for External Commercial Borrowing (ECB) regime to avail foreign currency denominated borrowing or they can opt for Foreign Portfolio Investment (FPI) to issue rupee denominated bonds.

What is Foreign Portfolio Investment

The Investment done by the non-residents in Indian securities such as shares, government bonds, corporate bonds, convertible securities, infrastructure securities, etc. The class of investors who make investment in these securities are known as Foreign Portfolio Investors. The Foreign Portfolio Investment is induced by the differences in equity price scenario, bond yield, growth prospects, interest rate, dividends or rate of return on capital in India’s financial assets.

The Securities and Exchange Board of India recently specified the criteria for Foreign Portfolio Investment according to which any equity investment by non-residents which is less than or equal to 10% of capital in a company is Portfolio Investment while above 10% investment will be regarded as Foreign Direct Investment.

A foreign investor cannot invest more than 10% of the paid up capital of the Indian Company. All the Foreign Portfolio Investment taken together cannot acquire more than 24% of the paid up capital of an Indian Company.  The regulations issued by the Securities and Exchange Board of India do not allow the Foreign Portfolio Investors to invest in unlisted shares as investment in the unlisted entities will be regarded as Foreign Direct Investment (FDI).

Who are Foreign Portfolio Investors

The Foreign Portfolio Investors includes investment groups of Foreign Institutional Investors (FIIs), Qualified Foreign Investors (QFIs) and sub accounts, etc. The Non-Residents Indians are not included in the Foreign Portfolio Investment. The Securities and Exchange Board of India issued a guideline and it was specified by the Reserve Bank of India that Foreign Portfolio Investors include Asset Management Companies, Banks, Pension Funds, Mutual Funds and Investment Trusts as nominee companies, Incorporated or Institutional Portfolio Managers or their Power of Attorney holders, University Funds, Charitable Trusts and Charitable Societies, Sovereign Wealth Funds. These all are regulated as Foreign Portfolio Investors.

According to the Securities and Exchange Board of India, FII is an institution which has been established or incorporated outside India which proposes to make investments in India in securities. It should be registered under the SEBI (Foreign Institutional Investors) Regulations, 1995. It includes a pension fund, mutual fund, investment fund, insurance company or a reinsurance company.

The Qualified Foreign Investor is an individual, group or association which is a resident in a foreign country and compliant with the Financial Action Task Force standard. It must be signatory to the International Organisation of Securities Commission. The foreign investment in the share market is dominated by the Foreign Institutional Investors because of their larger size which make them capable to invest on large scale than the Qualified Foreign Investors who are small investors and individuals.

Data of total Foreign Portfolio Investment done from 2004    

** till 24 June, 2017

Foreign Portfolio Regime Features

The investment under FPI is done in Equity, Debt and Derivatives. A single investor or an investor group cannot invest in portfolio more than 10% of the equity of a company in India. The existing Qualified Foreign Investors are allowed to deal with the securities either it is buying or selling only upto one year from the date of notification of the FPI regulations. They have to register themselves with the FPI the mean time.

The Non-Residents Indians and the Foreign Venture Capital Investors are not taken under the purview of the FPI. There is important role of Depository Designated Participants (DDP) who are authorised by the Securities and Exchange Board of India (SEBI). The DDPs register the FPI on behalf of the SEBI according to the prescribed norms of the SEBI and the due diligence norms.

The DDPs are authorised by the Reserve Bank of India or the Category-1 Bank. They may also be authorised by the Depository Participants or a Custodian of Securities who are registered with the Securities and Exchange Board of India.

Categories of FPI  

There are three different categories of Foreign Portfolio Investment in India. It is based on the risk based approach towards customer identity verification (KYC). it has been divided into low risk, moderate risk and high risk.

The First Category consist of Government and Government related foreign investors. These include Foreign Central Banks, Government Agencies, Sovereign Wealth Funds. The International and Multinational Organisations are also put under first category.

The Second Category includes regulated broad based funds such as Mutual Funds, Investment Trusts, Insurance companies. Banks, Asset Management Companies, Investment Advisors and Managers, Portfolio Managers and other regulated entities are the constituent of this category. Broad based Funds, University Funds and Pension Funds whose investment is appropriately regulated also face moderate risk.

The remaining foreign investors not eligible under category 1 and 2 such as Endowments, Charitable Societies or Trusts, Foundations. Corporate Bodies, Trusts, Individuals, Family Offices come under the third category where there is a high risk.

Eligibility Criteria for Foreign Portfolio Investors

The Foreign Portfolio Investors has to satisfy certain prescribed norms and conditions then only the Designated Depository Participants will accept application for granting certificate of registration as a foreign portfolio investment. The following conditions are required,

• The applicant is a person not resident in India.
• The applicant is resident of a country whose securities market regulator is a signatory to International Organization of Securities Commission’s Multilateral Memorandum of Understanding (Appendix A Signatories) or a signatory to bilateral Memorandum of Understanding with the Board.
• The applicant being a bank, is a resident of a country whose central bank is a member of Bank for International Settlements.
• The applicant is not resident in a country identified in the public statement of Financial Action Task Force as:

(i) A jurisdiction having a strategic Anti-Money Laundering or Combating the Financing of Terrorism deficiencies to which counter measures apply or

(ii) A jurisdiction that has not made sufficient progress in addressing the deficiencies or has not committed to an action plan developed with the Financial Action Task Force to address the deficiencies.

• The applicant is legally permitted to invest in securities outside the country of its incorporation or establishment or place of business.
• The applicant is authorized by its Memorandum of Association and Articles of Association or equivalent document(s) or the agreement to invest on its own behalf or on behalf of its clients.
• The applicant has sufficient experience, good track record, is professionally competent, financially sound and has a generally good reputation of fairness and integrity.
• The grant of certificate to the applicant is in the interest of the development of the securities market.
• The applicant is a fit and proper person based on the criteria specified in Schedule II of the Securities and Exchange Board of India (Intermediaries) Regulations, 2008.
• Any other criteria specified by the Board from time to time.  

Conclusion

The Indian companies raise their debt from non-residents through different avenues. The capital account transaction between a resident and non-resident are regulated by the Reserve Bank of India (RBI) which is the primary regulator in India for Foreign Exchange Transactions. The investments into the capital markets by foreign portfolio investors are also regulated by the Securities and Exchange Board of India (SEBI) which regulates the Capital Market in India. The recent changes done in the area of taxation laws and ease in registration requirements will surely boost the portfolio investments in India.

In this article, Kshitij Asthana discusses Oral Transfer of Property under the Transfer of Property Act.

History and development of Transfer of Property Act

Going back in time before passing of the Transfer of Property Act, writing was not an essential ingredient for Transfer of Property from one entity to another.[1] After the passing of the Act, now certain specified transactions are required to be in writing.[2] For example, if the statute requires a deed for transfer of Title of the land, then the same cannot be passed by mere admission. Transfer of Property Act contains specific provisions regarding what constitutes a transfer and discusses different conditions attached to it. The Act, came into force on 1^st July, 1882.

Understanding the provisions of Transfer of Property Act

Before coming to oral transfer of property, the researcher would like to throw some light on what transfer of property means. Section 5 of T.P. Act[3] defines Transfer of Property and by bare reading of the section it can be understood that the same means an act by which a living person conveys property in present or in future to one or more living persons, (including/excluding) himself. Here living person according to Section 5 includes any person or a company or an association or a body of individuals, which may or may not be incorporated. Now, the question that arises in that what kind of properties can or cannot be transferred. [4] The Act does not specify or has no exhaustive list to answer the same but section 6 of T.P. Act[5] states that property of any kind may be transferred, except if states otherwise in the act which essentially makes an exhaustive list of things which cannot be called property and which cannot be transferred.

Oral transfer of Property under the Transfer of Property Act

Definition
Section 9 of the Act[6] talks about oral transfer of property. It states that,

“A transfer of property may be made without writing in every case in which a writing is not expressly required by law.”[7]

Illustration of the definitions and case laws

This section essentially mandates that a transfer of property may be made without writing in every case in which writing in not expressly mentioned/required by law but it is also essential to note here that the act is not exhaustive of such kinds of transfers.[8]

In a very famous case of Sarandaya Pillay v Sankarlinga Pillai[9], Ramaswami J., of Madras High Court observed “the test, therefore in this country to determine whether a transaction (be it a transfer or not) can be made without writing is to see if it is expressly required by law to be in writing. If the transaction is a transfer of property and there is no express provisions of law requiring it to be in writing, section 9 will enable it to be made without writing and vice versa” through which an essential inference can be drawn and it can be said that if the transaction is a transfer of property and there is no express provision of law requiring it to be in writing then the general principle referred above will enable it to be validly made without writing.

The reasoning of Section 9 underlines the general principles that everything is to be taken permissible unless there is a prohibition against it and has been inserted in the statute ex abdundanti cautela.[10]

An Important Observation here is that a promoter of a company though fulfils some fiduciary duties, he cannot be described as a trustee. He occupies a peculiar position of a quasi-trustee. Also the declaration of promoter that the property held by him for the company before its incorporation doesn’t constitute either mortgage, sale, lease, exchange or deed. The company before its incorporation is not a living person and hence the provisions of Section 5 of the T.P. Act are not attracted.

An analysis of Oral Transfer of Property (Section 9 of the Transfer of Property Act)

Interpretation of Statutes

As already mentioned in the introduction, this section talks about oral transfer of property and has mentioned that transfer of property can be made without writing in every case where writing is not expressly required by the statute.  Now, the next question that arises is that when does the statute mandate the transactions to be in writing. Transfer of Property under section 54, 58 (except mortgage by deposit of title-deeds), 105,118, 122 and 130 are required to be in writing. Also under Section 5 of the Indian Trusts Act, II of 1882, transfers which parties desire to register must be in writing. Gift of immovable property at the time of marriage must also be registered and be in writing.

Provision of Oral Transfer of property at the time of the marriage.

It is also necessary to note here that Section 9 of T.P. Act would not apply to a case of transfer of immovable property made at the time of marriage by a Hindu.[11] It is essential to note here that Transfer of Property Act clearly recognizes oral transfers. Hence a simple deduction can be done here that an oral transfer of property is a rule unless there is a law which expressly requires that the transfer should be in writing. Now, movable property is not defined under Transfer of Property Act but according to the interpretation clause that is section 3 of the Transfer of Property Act, 1882, immovable property does not include standing timber, growing crops or grass. Now the General Clauses Act, 1897 defines the term movable property as property of every description, except immovable property. Immovable property has been defined to include land, benefits arising out of land or things attached to the earth or permanently fastened to anything attached to the earth. Hence anything it can easily be inferred because the exhaustiveness of the definition of immovable property that anything which is not covered under the definition of it is a movable property including computer programs[12] and other intellectual property.

Analyzing different sections with relation to section 9 of the Transfer of Property Act.

• Under section 54, a sale of tangible immovable property of value more than hundred Rupees (Rs 100/-) is required to be made, only by a registered instrument.
• In Section 59 of the T.P. Act, a writing is necessary in the case of simple mortgage or in case of all other mortgages except a mortgage by title-deed deposit where the principal amount or sum secured in more than hundred rupees (Rs 100/-).
• Also, in section 107, a lease of immovable property from year to year, or for any term exceeding one year, or reserving a yearly rent, is required to be made in writing.
• Section 130 mandates that all transfers of actionable claims have to be made by writing and u/s 118, all exchanges are subject to the same rules as are applicable to sales.

Hence it can be deducted that when the law requires that there should be an instrument in writing and the said instrument should be registered then the ownership can only be transferred by that method. But, where no writing is required by the Transfer of Property Act or any other law, the transfer may be made orally.[13]

Illustration and few landmark judicial pronouncements

Writing necessary

The section provides for oral transfer. Transactions which are not required by law to be in writing can be made orally under this section without any writing. Writing is necessary for the following transactions:

1. Sale of immovable property of value of Rs. 100 or upwards.
2. Simple mortgage of specific immovable property of any value.
3. Lease from year to year or for any term exceeding one year or reserving a yearly rental.
4. Exchange of the value of Rs. 100 or upwards.
5. Transfer of actionable claim.
6. Notice of transfer of actionable claim.

In the famous case of Narsinghdas v. Radhakisan[14] it was held that a test to find out whether a transaction can be made without writing is to see whether it is expressly required by law to be in writing, which further substantiates our hypothesis and our illustration of Section 9 of Transfer of Property Act, 1882.

Coming to oral gifts

In the case of Keshri Mull v Sukan Ram,[15] it was held that oral gift though permissible under the section is not valid without delivery of possession. Validity of oral partition was challenged in the case of Peddu Reddiar v. Kothanda Reddi[16] and the judgment finally upheld the validity of oral partition of property. Subsequently, there have been various cases which established the fact that when writing is not required by Act, transfer can be made orally.[17]

Oral Family settlements

It has also been established by a three judge’s bench of the Supreme Court in a case of allegations of fraud and undue influence, that family settlements can be oral and there is no need to keep it in writing.[18]

Oral Family arrangements

The high court of Jammu & Kashmir has already substantiated that a family arrangement need not be written and it can be oral too.[19] A relinquishment by the mother of her interest in the joint family property, even when the property consists of immovable property and the value of the share therein exceeds Rs. 100/-, can be made without writing, and registered instrument is not required.[20]

A skimmed reading of the judgment in the case of Bhuta Singh v Mangu and Ram Sarupv. Ram Dei[21] also suggests that alienation needs no written instrument. It is sufficient if the person entitled to the property does an act which necessarily results in its transfer.[22] All that the act provides for is that certain specified transfers shall only be made in writing duly registered. An award relating to immovable property need not be in writing.[23]

Conclusion

The Transfer of property Act, 1882 is an Indian legislation which regulates the transfer of Property in India. Through numerous case laws and illustrations, the researcher has consolidated the fact that Section 9 of the said Act deals with oral transfer of property and has also discussed what can or cannot be transferred orally. It is further notified to the readers that there is no law which says that the seller must sell the property at market rate. He can always sell at any rate of his choice. The only constraint that is imposed on him would be to pay the stamp duty required to be paid on the prices fixed by the Ready Reckon of the Government so that there could be no loss of Government Revenue. The sale deed cannot become void for inadequacy of prices after the parties have mutually accepted the prices as the correct price.[24]

Property in itself can be classified into 2 components namely movable and immovable property. Both the terms are not completely defined in the Act[25] hence the definition given in Section 3 of General Clauses Act, 1897 has to be read along with the interpretation clause in The Transfer of Property Act, 1882. It should also be taken note of that there are 18 other statutes that are primarily concerned with Property Law, or significantly matter to Property Law, as listed below:[26]

Trusts Act, 1882, Specific Relief Act, 1963, Easements Act, 1882, Registration Act, 1908, Stamp Act, 1899, State Stamp Act, 2008, Limitation Act, 1963, General Clauses Act, 1897, Evidence Act, 1872, Succession Act, 1925, Partition Act, 1893, Presidency-Towns Insolvency Act, 1909, Provincial Insolvency Act, 1920, Recovery of Debts Due to Banks and Financial Institutions Act, 1993, Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002, Contract Act, 1872, Sale of Goods Act, 1930, Negotiable Instruments Act, 1881.[27]

Also it is important to note here that every person, who is competent to contract[28], is competent to transfer the property either in whole or in part. The right of the person can be absolute or conditional[29] or can be immovable or movable[30] depending upon the nature of the property. But, there are certain conditions that must be satisfied for a transfer of Property. There must be a representation by the one who is transferring (the Transferor) that he has the applied authority to transfer the immovable property. The representation should not either be fraudulent or erroneous. The transferee must act in good faith and the property should be transferred with some consideration which is valid in the eyes of law which essentially will vest the transferee’s interest in the property and the transferor should have interest in the property which he had agreed to transfer.[31]

Bibliography

• JUDGEMENTS AND BOOKS REFERRED

1. Mohamed Musa v Aghore Kumar Ganguli, (1915) 42 Cal 801: 42 IA 1. Justice was quoted saying “A transfer can be made orally unless expressly required by the law to be in writing. Prior to passing of the Act, no writing was necessary for such transfer.
2. Immudiapattam v. Periya Dorasami (1901) 24 Mad 377; Bishan Dial v Ghazi-ud-din. (1901) 23 All 175.
3. Section 5, The Transfer of Property Act, 1882
4. Section 6, The Transfer of Property Act, 1882 (Bare Act)
5. Section 9, The Transfer of Property Act, 1882 (Bare Act)
6. Section 9, The Transfer of Property Act, 1882 (Bare Act)
7. Weavers Mills v Balkis Ammal, AIR 1969 Mad 462 (469,470): (1969) 2 Mad LJ 509
8. Sarandaya Pillay v Sankarlinga Pillai Sarandaya Pillay v Sankarlinga Pillai
9. Gangadhara Rao v G. Gangarao, AIR 1968 AP 291
10. Centre for Internet and Society, available at https://cis-india.org/internet-governance/bitcoin-legal-regulation-india. (extracted on 11th July, 2017)
11. Ramdas v. Pahlad, AIR 1965 Bom 74 (75,76): 66 Bom LR 499; Subramniyan v. Venkatachalam Pillai (2011) 6 MLJ 743 (752) (Mad)
12. Narsinghdas v. Radhakisan, 1952 Bom 425
13. Keshri Mull v. Sukan Ram, 1933 Pat. 264
14. Peddu Reddiar v. Kothanda Reddi, 1966 Mad 419
15. Weavers Mills Ltd. v. Balkis Ammal, 1969 Mad 463: (1969) 2 MLJ 509: (1969)  2 MLJ 509: (1969) 1 Mad 433
16. Kale v Director of Consolidation, 1976 SC 807: (1976) 3 SCC 119: (1976) 3 SCR 202.
17. 1972 J&K 472
18. Ramdas v. Pahlad, AIR 1965 Bom 74 (75,76) : 66 Bom LR 499
19. Bhuta Singh v Mangu, AIR 1930 Lah 9; Ram Sarup v. Ram dei, (1907) 29 ALL 239; Sheo Singh v. Jeoni, (1897) 19 ALL 524
20. Bhagwatibai v. Bhagwandas, AIR 1927 Sind 206
21. Dashrath Narayan Shinde v. Gangaram Ghag Laxman, 2010 (4) Mah LJ 392 (394) (Bom) : (2010) 3 Bom CR 641
22. Section 3 of The Tranfer of Property Act, 1882 has to be read along with the definition of immovable property given in Section 3 of General clause Act, 1897. Available at http://alappuzha.nic.in/resources-file/acts-rules/GeneralClausesAct.pdf.
23. Sumeet Malik, Property Law Manual (Hard Bound) (2014 edition). Eastern Book Company. p. 1-968. ISBN number- 9789351451150.
    • ONLINE REFERENCES
24. scconline.com/Articles/on/oral/transfer/section/9/
25. http://www.manupatrafast.com/articles/PopOpenArticle.aspx?ID=797c51f7-0615-4fa8-b92e-7d7d24d03689&txtsearch=Subject:%20Property%20Law/Oral%20Tranfer%20of%20Property
26. http://www.merriam-webster.com/dictionary/Oral%20Transfer

References

[1] Mohamed Musa v Aghore Kumar Ganguli, (1915) 42 Cal 801: 42 IA 1. Justice was quoted saying “A transfer can be made orally unless expressly required by the law to be in writing. Prior to passing of the Act, no writing was necessary for such transfer.

[2] Immudiapattam v. Periya Dorasami (1901) 24 Mad 377; Bishan Dial v Ghazi-ud-din. (1901) 23 All 175.

[3] Section 5, The Transfer of Property Act, 1882

[4] Id.

[5] Section 6, The Transfer of Property Act, 1882 (Bare Act)

[6] Section 9, The Transfer of Property Act, 1882 (Bare Act)

[7] Section 9, The Transfer of Property Act, 1882 (Bare Act)

[8] Weavers Mills v Balkis Ammal, AIR 1969 Mad 462 (469,470): (1969) 2 Mad LJ 509

[9] Sarandaya Pillay v Sankarlinga Pillai Sarandaya Pillay v Sankarlinga Pillai

[10] ex abundanti cautela. out of an abundance of caution. In law, describes someone taking precautions against a very remote contingency. “One might wear a belt in addition to braces ex abundanti cautela”.

[11] Gangadhara Rao v G. Gangarao, AIR 1968 AP 291

[12] Centre for Internet and Society, available at https://cis-india.org/internet-governance/bitcoin-legal-regulation-india. (extracted on 11^th July, 2017)

[13] Ramdas v. Pahlad, AIR 1965 Bom 74 (75,76): 66 Bom LR 499; Subramniyan v. Venkatachalam Pillai (2011) 6 MLJ 743 (752) (Mad)

[14] Narsinghdas v. Radhakisan, 1952 Bom 425

[15] Keshri Mull v. Sukan Ram, 1933 Pat. 264

[16] Peddu Reddiar v. Kothanda Reddi, 1966 Mad 419

[17] Weavers Mills Ltd. v. Balkis Ammal, 1969 Mad 463: (1969) 2 MLJ 509: (1969)  2 MLJ 509: (1969) 1 Mad 433

[18] Kale v Director of Consolidation, 1976 SC 807: (1976) 3 SCC 119: (1976) 3 SCR 202.

[19] 1972 J&K 472

[20] Ramdas v. Pahlad, AIR 1965 Bom 74 (75,76) : 66 Bom LR 499

[21] Bhuta Singh v Mangu, AIR 1930 Lah 9; Ram Sarup v. Ram dei, (1907) 29 ALL 239; Sheo Singh v. Jeoni, (1897) 19 ALL 524

[22] Id.

[23] Bhagwatibai v. Bhagwandas, AIR 1927 Sind 206

[24] Dashrath Narayan Shinde v. Gangaram Ghag Laxman, 2010 (4) Mah LJ 392 (394) (Bom) : (2010) 3 Bom CR 641

[25] Section 3 of The Tranfer of Property Act, 1882 has to be read along with the definition of immovable property given in Section 3 of General clause Act, 1897. Available at http://alappuzha.nic.in/resources-file/acts-rules/GeneralClausesAct.pdf.

[26] Sumeet Malik, Property Law Manual (Hard Bound) (2014 edition). Eastern Book Company. p. 1-968. ISBN number- 9789351451150.

[27] Id. (Sumeet Malik)

[28] Not expressly barred by any national or international statute

[29] Section 10, The Transfer of Property Act, 1882 ( Bare Act)

[30] See Section 3, Interpretation Clause of Transfer of Property Act, 1882, (read along with) General Clause Act 1897 for definition of Immovable Property.

[31] After bare reading of the The Transfer of Property Act, these points came out as an analysis.

In this article, Karan Singh of JGLS discusses How to link your Aadhaar card with PAN card.

The Hardest Thing in the world to understand is the Income Tax-   Albert Einstein

Introduction

Supreme Court made it mandatory for all Aadhaar holder to link it with PAN (Permanent Account Number) card. However, for now, Aadhaar holder, they can E-file tax returns without the same.

According to the latest amendment on 9th June 2017 by the Government of India and the Income Tax Department, every PAN (Permanent Account Number) Cardholder have to link its Permanent Account Number with its Aadhaar Number from 1st July 2017.

If you already have Aadhaar card then it is mandatory to link it with PAN card and to fill ITR (Income Tax Return) it is mandatory to mention Aadhaar number. If you do not have Aadhaar card then you have to apply for Aadhaar and mention Enrolment ID or Aadhaar number. If you do not want to mention Aadhaar number in ITR (Income Tax Return) then you can file ITR (Income Tax Return) without Aadhaar as PAN will not be canceled. But this is for the limited time only eventually you have to link Aadhaar with PAN.

Linking Aadhaar card with PAN card is for your own benefit. Link Your Aadhaar number with PAN card for the following benefits.

1. For filling the tax return: Government has made it clear that after 1st July 2017 you won’t be able to file income tax if you have not got your Aadhaar card linked to your PAN card.
2. Secondly, Income Tax department has stated that they won’t cancel any PAN card if it is not linked. But this is only for some time and this is temporary relief. Soon you have to link your Aadhaar with PAN if you do not want to get your PAN canceled.
3. Linking Aadhaar with PAN will help solve the problem of multiple PAN cards issued under a single name. Also, it is mandatory to link the Aadhaar with PAN for filling the tax
4. Linking the Aadhaar to PAN will help the user to get the summarized details of the taxes.

Consequence Of PAN number becomes invalid

It is mandatory to link the Aadhaar card with PAN and if not done then your PAN card will become invalid. So, what all are the consequence of this. Firstly, You will not get any credit for all the PAN number which has been deducted from your income whether as salary or interest etc as the PAN number no longer exists.

Secondly, instead of not deducting TDS from the interest/other income being paid to you, the payer will deduct tax @ 20 % under section 206A.

Submitting of an invalid PAN amounts to a penalty of RS 10,000/- can be levied on you under section 272B.

Judgment

The Finance Minister introduced Section 139AA of the Income Tax Act 1961 made Aadhaar mandatory for filing ITRs (Income Tax Return). The petition was filed by the citizens about the constitutional validity of Section 139AA of the Income Tax Act 1961. This section provides two things. Firstly, it makes it mandatory to link individual Aadhaar card with his or her PAN card. Secondly, the requirement of section 139AA is that you have to provide Aadhaar number while making an application for allotment of new PAN number after 1st July 2017.The second part of section 139AA(2) of the Income Tax Act mandates that every person having a PAN as on 1st July 2017 and who is eligible to obtain Aadhaar shall intimate his Aadhaar on or before a date notified by Central Government.

The SC has upheld the power of the parliament to pass any law which mandates the linking of Aadhaar and PAN card. And thus upheld the constitutional validity of Section 139AA. The court has stated for those taxpayers who already have their Aadhaar number have to provide the Aadhaar number while filing their income tax return. So for those who do not have Aadhaar card do not have to worry as you can file the ITR(Income Tax Return) without Aadhaar card.

How to Link your PAN Card & Aadhaar Card Online

There are two easy methods through which PAN Card & Aadhaar Card could be Linked – Online or SMS:

Aadhaar-PAN linking by SMS

First, is linking by SMS. There is another easy method of linking PAN Card with Aadhaar Card. For this, you have to send one SMS to either 567678 or 56161 to link your Aadhaar Card. The Format is given below which should be followed to avoid any mistake. Send SMS according to the format below.

UIDPAN<SPACE><12 digit Aadhaar><Space><10 digit PAN>

Example: UIDPAN 123456789123 AKPLM2124M

In this, the 12 digit number represents your Aadhaar number, and the second one is your PAN number. If the name is different in the record of the two card, then you will receive an Aadhaar OTP through SMS for confirmation. However, if other details like gender, date of birth do not match then you have to head to the National Securities Depository Ltd. website for PAN information and UIDAI(Unique Identification Authority of India) for Aadhaar information to get the information changed.

This process of linking Aadhaar and PAN is not only for the taxpayers but also for those whose income does not fall under the taxable bracket. According to the government it will help avoid tax evasion.

Aadhaar PAN linking by online:  

For linking online, you have 2 options:

The First option is linking online directly without using Login ID. For this, you have to open the website of the income tax and then go to Link Aadhaar under Services. Link for the same is provided https://www.incometaxindiaefiling.gov.in.  After clicking on “Link Aadhaar”, a form will appear which should be filled. You have to provide PAN, Aadhaar no. and Name exactly as per Aadhaar. Also, enter the captcha code and then click on Link Aadhaar.

Link for the form is provided below:

https://www.incometaxindiaefiling.gov.in/e-Filing/Services/LinkAadhaarHome.html

After the verification from UIDAI (Unique Identification Authority of India) which the government service for Aadhaar, the link will be done.

Second Option is using Login ID. You can also link the Aadhaar with PAN after login to the E-filing portal of income tax by entering the login id. Click on “Login Here” and enter the information like User Id, Password, captcha etc and then click login.

After login into the website, you need to click the profile setting and click on Link Aadhaar. A form will open which will contain all the information like name, date of birth and gender which you mentioned at the time of registration on the E-filling portal. If the personal details match then you have to enter the Aadhaar number and captcha code and click on “Link Now” button.

A pop-up message will inform you if your Aadhaar is linked or not.

What are the alternatives if you are unable to link Aadhaar with PAN

If you receive the message that your Aadhaar is not linked with PAN, then there can be some mistake in your information while filling. However, if you receive the failure message, then it means that you are unable to link Aadhaar with PAN. Reasons of unable to link:

• Personal information like name, date of birth or Gender can be different in PAN and Aadhaar.
• Aadhaar number entered can be wrong or does not exist with Aadhaar database.

Hence, the main reason for unable to link Aadhaar with PAN is mainly because of name difference. The solution is to identify the correction and correct it.

There are two alternatives to correct the mistake. Either get name changes in Aadhaar card or PAN card. This can be done online by visiting National Securities Depository Ltd. website for PAN or UIDAI(Unique Identification Authority of India) website for Aadhaar.

India exempts NRIs from quoting Aadhaar in tax returns

The Indian government has exempted Non-resident Indians(NRIs) from linking Aadhaar with PAN card for filing the income tax return. Although NRIs are exempted from income tax on their income abroad, they have to file tax returns for their income earned in India.

Conclusion

Linking of Aadhaar card with PAN card is mandatory for people who already have an Aadhaar card for filing ITR(Income Tax Return). If you do not have an Aadhaar card, then you can file ITR(Income Tax Return) without Aadhaar also but only for limited time. Limited time is given by Supreme Court to the citizens of India to either get the Aadhaar card for filing ITR(Income Tax Return) or their PAN will become invalid after some time.

It is better to get Aadhaar card issued as soon as possible for filing ITR(Income Tax Return) because eventually, the PAN will become invalid which can lead to serious consequences as explained above.

In this article, Sachin Vats of RGNUL discusses Ten Points about AFSPA. Is it misunderstood by masses?

What made the “Iron Lady of Manipur” to fast for such a long period of sixteen years which ended without any fruitful result. The country with diversified culture and beliefs is very critical to understand as the decisions taken by the legislation has to think from a different perspective because the laws should be in accordance with the length and breadth of the country. Some special provisions are indeed essential to tackle specific and serious problems. The Armed Forces Special Powers Act is one such act which confers some special powers to the Armed Forces to combat terrorism in “Disturbed Areas”.

The Birth of AFSPA

The Article 355 of the Constitution of India confers power to the Central Government to protect every state from internal disturbance. The Governor of the State has power in his hands under this article to provide the armed forces special powers in Disturbed Areas to face dangerous situations.

The Armed Forces Special Powers Act was enacted in the year 1958 which first came as an ordinance and then made into law. The AFSPA was concerned with only Assam and  Manipur in 1958 due to increasing in insurgency by the Naga militants.

Disturbed Areas

The Governor of a State or the Administrator of any Union Territories or the Central Government can decide according to the dangerous situation of the area to declare it as Disturbed. If there is a requirement of use of Armed Forces in aid of the civil powers then it can be declared by the Governor or the Administrator or the Central Government in the official gazette through a notification. The whole or any part of the State or the Union Territories can be declared as Disturbed Areas. All these provisions are stated under Section 3 of the Armed Forces Special Powers Act, 1958. The disturbed areas are declared on the basis of the disputes related with religion, races, castes, communities. The region once declared as disturbed has to maintain a status quo for a minimum time period of three months according to The Disturbed Areas (Special Courts) Act, 1976.

Some Misconceptions related with AFSPA

Nature of AFSPA: Is it really Draconian?

The Governor and the Central Government have power to declare any state or part of the state as “Disturbed” without any specified grounds. The only ground required is to say that the situation is dangerous and aid to the civil power is required which will be given by the armed forces with special power. The country will not tolerate the attack on the Sovereignty and forces are allowed to take even the extreme decisions when there is question about nation’s security. One of the important point here is to note that the area declared as disturbed is not subject to Judicial review.

Many people describes it as “Unconstitutional” on the ground of violation of Article 21 and 22. The Article 21 discusses about the Right to life and personal liberty which includes fair, just and reasonable law. The use of excessive power without reasonable grounds questions the validity in accordance with the constitution. The Article 22 relates to protection against arrest and detention but all these procedures are actually followed or not is always a controversial topic.

The controversies have been already sorted out by the decision of the Delhi High Court in the Inderjit Barua case where it was stated that the AFSPA is constitutional and the Guwahati High Court found it binding on the resective state. People are waiting for the decision of the Hon’ble Supreme Court which pending for few years.

The Section 4 of the Act itself gives special powers to any commissioned officer, warrant officer, non-commissioned officer or any other person of equivalent rank in the armed forces. The maintenance of the public order is of prime importance. Any person who has committed any cognizable offence or against whom any reasonable suspicion exists that one has committed any cognizable offence or about to commit cognizable offence can be arrested even without warrant.   

The Section 5 clearly states that the armed forces cannot keep the arrested persons in their custody and they have to be made over to the officer in charge of the nearest police station with least possible delay. The most important point here is that the officer acting under this act is protected through the act. No judicial proceedings, suits, prosecution can be taken against the actions taken by them in exercising the powers conferred by them under this act.

AFSPA in different States

Assam was the first state where AFSPA was enforced. The dangerous activities done by the United Liberation Front of Assam was the reason behind application of AFSPA in Assam. The people must know that the whole State except the Guwahati Municipal Area is under AFSPA. So, it is not applicable in the municipal area of Guwahati.

The ACT is applicable only in the area of 20 km where it shares it border with Assam. There are three districts in Arunachal Pradesh which has been declared as “Disturbed Area”. Tirap, Changlang, Longding along with some area sharing boundary with Assam border are under this Act. The Act was applied in the whole State in 2015 by the Government but later it was withdrawn after consultation with state government.

Nagaland is under the purview of AFSPA even before its formation in 1961. Earlier it was a part of Assam and later independent state was formed. We all are known with the sixteen years long fast of Irom Sharmila for removing AFSPA from Manipur but nothing significant change has happened yet in the state. The AFSPA is applicable in whole state except the Imphal Municipal Area. So, the situation is similar to the Guwahati municipal area.

The Act was applied in Punjab and Chandigarh to counter the Khalistan Movement by the separatists who were demanding for a separate nation on the basis of Sikhism religion. The Act was removed in 1997 but the same was removed by the state government in 2008. People will be surprised that the AFSPA was removed from  Chandigarh in the year 2012 by the High Court of Punjab and Haryana.   

The AFSPA is applicable in the whole state of Jammu and Kashmir. It was applied under the Armed Forces (Jammu and Kashmir) Special Powers Act, 1990. The Government led by Farooq Abdullah ruled out Disturbed Area Act (DAA) in 1998 but could not evade AFSPA as it is upon the Centre to decide about application of AFSPA. So, the last resort rests with the Central Government here.

Removal of AFSPA in Tripura

The Armed forces Special Power Act came to an end in the state of Tripura after a time period of 18 years. The decision was taken by the Chief Minister Manik Sarkar who is also the Home Minister of the State. He said that the insurgency is in control and there is no requirement of such Act.

The reason behind the removal of AFSPA in Tripura was that there has been significant decline in militancy and the state observed 84% voting turnout in the 2014 Loksabha election. These positive changes encourage the government to remove the Act.  

Conclusion

There has been always allegations made against the armed forces about fake encounters under the garb AFSPA. Various committees have been made for the investigation but people are still waiting for concrete results. According to the provisions of the Act, the armed forces have been given these powers only to aid the police in dangerous situation. There is no any absolute control conferred in the hands of the armed forces as there are only to aid the local police.

Many Human Rights Activists are against the application of AFSPA in different states but an important question arises before us that What is the alternative solution?

The recent attack on the bus of the pilgrims going towards Amarnath and regular attacks on the Army personnel shows that the state like Jammu and Kashmir still has to travel a long way in order to become an undisturbed area. The rise in militancy and the attacks on the citizen shows the need of AFSPA. The Government of India in an All Party meet clearly ruled out any possibility of either lifting or diluting AFSPA in Jammu and Kashmir.

In this article, Diksha Chaturvedi discusses the constituents, punishment and other legal issues related to cheating. 

Introduction

As we see cheating is a criminal offence and it has myriad of crimes associated with it. It can be seen in various forms. In the layman’s language cheating can be described as a dishonest or unfair act done to gain advantage over the other. Cheating is saying or doing something dishonesty which makes someone believe that something is true when it is not. It is a term we often hear in our daily lives but don’t know its legal aspects. To make a more clear understanding from legal point of view, this article would be dealing with cheating and its constituents, punishment for this offence and other legal issues related to it. Further, this article will also discuss the legal remedies available for this offence.

Cheating (Section 415-420 of IPC)

Indian Penal Code deals with this offence under section 415 to 420.

Section 415: Cheating

Cheating is defined under this section. It says that,
“Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to “cheat”.

Explanation: A dishonest concealment of facts is a deception within the meaning of this section.

Illustration:  A, sold an article to B saying that it is made up of gold when it is not, intentionally deceives him and thus commits the offence of cheating.

Constituents of Cheating

Acting Dishonestly

The term ‘acting dishonestly’ has been defined under section 24 of Indian Penal Code.
It is defined as, “when the doing of any act or not doing of any act causes wrongful gain of property to one person or a wrongful loss of property to a person, the said act is done dishonestly.”

Property

Property has a much wider meaning. It does not only include money but other things as well which can be measured in the terms of money. The property should be in a complete ownership of the person and he must have the full right to enjoy its possession.

Fraudulently

Being fraudulent means which involves deception mainly criminal deception. It is characterized by fraud. According to section 25 “a person is said to do a thing fraudulently if he does that thing with intent to defraud but not otherwise.”

Mens Rea

Mens rea is the intention or action to constitute a crime. It is a mental state of an offender while committing a crime. It has to be proved beyond any doubt that the accused has actively contributed in a crime and that crime has affected another person’s property.

Section 416: Cheating by Personation.

A person is said to cheat by personation when,
“he cheats by pretending to be some other person, or by knowingly substituting one person for another, or representing that he or any other person is a person other than he or such other person really is”.

Explanation -The offence is committed whether the individual personated is a real or imaginary person.

Illustration: A, by falsely pretending to be a government official deceives B, and induces B to sell his property to him for which he is not going to pay. A cheats by personation.

Section 417: Punishment for Cheating

Cheating is punishable under this section with imprisonment up to 1 year or fine or both. Imprisonment depends upon the quantum of the act done. If the act is not that grave, imprisonment won’t be imposed and will charge with fine only. But when the act done is so grave that merely fine and imprisonment won’t compensate, then the person will be charged with a mandatory imprisonment of 7 years along with fine.

Section 418: Cheating with knowledge that wrongful loss may ensue to person whose interest offender is bound to protect.
Under this section,

“Whoever cheats with the knowledge that he is likely thereby to cause wrongful loss to a person whose interest in the transaction to which the cheating relates, he was found, either by law, or by a legal contract, to protect, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both”.

Explanation: Causing loss to the aggrieved party whose interest is to be protected by the offender, omits to do so with wrongful intention.

Section 419: Punishment for cheating by personation.

Under this section,  

“Whoever cheats by personation shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.”

Section 420: Cheating and dishonestly inducing delivery of property

This section deals with offences which are committed by a person by cheating another person and inducing him to deliver his property to the offender.
According to this section “Whoever cheats and thereby dishonestly induces the person deceived any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine”.

Constituents of Section 420

The ingredients as to constitute an offence under this section are:

1. Cheating,
   
2. Dishonest intention to take the property of another person or induce him to deliver the property to alter, destroy or make any changes in the valuable security, or
   
3. Deceitful or malice intention.

Modes of cheating

There are various ways through which the offence of cheating can be committed. They are:

• Caste Misrepresentation:
  when a person represents himself as a member of a caste to which he do not belong is committing an offence of cheating.

• Showing false accounts:
  when a person shows false accounts of himself or of some other person to clear a debt, then is said to commit the offence of cheating.

• Creating false evidence:
  when a person gives false evidence regarding some event then he can be held liable for the offence of cheating.

• False professional qualification:
  when a person shows false professional qualification to acquire a post or job then he is said to commit the offence of cheating.

When does breach of contract amount to cheating

Case Law: S.W. Palanitkar V. State of Bihar- 2001(10) TMI 1150- Supreme Court
Under this case Supreme court held that to convict a person for the offence of cheating there should be pre-existing dishonest or fraudulent intention of the person from the beginning but in case of Breach of Contract the dishonest intention is not present in the beginning of the agreement

Fraud/ Cheating

Dishonour of Cheque/ Cheating

Dishonour of Cheque is maintained u/s 138 of Negotiable Instrument Act while the offence of Cheating is mentioned u/s 420 of Indian Penal Code. But in some cases Dishonor of Cheque can be taken as an offence of cheating.

For example, if the person who has issued the cheque has already closed his bank account but still issues a cheque to some other person in exchange of payment of goods he has purchased from that person, in this case the person issuing the cheque is dishonest as he is aware of the fact that the cheque will get bounce. The person has deceived the other by doing so as he knew from the start about the consequences of the same. So, this may be an example where offence u/s 420 can be made out for dishonor of cheque.

The offences under Section 138 N.I. Act and Section 420 IPC are two different offences altogether. Whether this offence or that offence is made out would depend on the facts of each case. You’ll have to check the ingredients of which particular offence are satisfied from the facts of your case.

Legal Remedies for the offence of Cheating

Jurisdiction

Under section 2 of IPC it is stated that “Every person shall be liable to punishment under this Code and not otherwise for every act or omission contrary to the provisions thereof, of which he shall be guilty within India.”

A national of Pakistan, falsely represented himself as the businessman of Bombay. He assured the complainant that he is having good quality of products and he would be glad to sell them to the complainant if he transfers the money to him. The complainant transferred the money but did not receive anything in return.
It was held that as the offence was committed in Bombay even though the accused is a national of Pakistan and was not physically present in India, the courts of Bombay has jurisdiction by virtue of Section 2 of IPC.

Cognizance of the offence

Offence of cheating is cognizable and non bailable. The trial is done by magistrate of first class. FIR or Application can be filed u/s 156(3) and In case of private complaint u/s 200.

Punishment

Minor cases

When the offence of cheating is not that severe or is a simple case of cheating then the offender is punished with imprisonment for a term of 1 year or fine or both.
Example: ‘A’ promised ‘B’ to sell his property but instead of that sold it to ‘C’. This case can be considered under it.

Severe cases

It covers the cases where cheating is done by guardian, trustee, solicitor, agents, manager of Hindu family etc. In such cases punishment is imprisonment for 3 years or fine or both.

Cheating by personation

In the cases where the offence of cheating has been committed along with personation then the person if guilty u/s  416 and punished u/s 419 for imprisonment up to 3 years or fine or both.

Conclusion

Cheating is an offence under which a person induces the other to deliver the property or commission or omission of an act done on the part of the offender with the intention of deceiving the person. Mainly two elements are necessary to constitute the offence of cheating i.e. deception and inducement. Cheating is confused with various other civil and criminal offences but it differs from each of them in some or the other way.

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In this article, Pradipta Nath discusses how to seed KYC data in the EPF portal on your own.

An employee can do seed the KYC details on his/her own.

The benefits of activating UAN and seeding the KYC details in the PF portal are many. Those are furnished below:-

1. Online PF withdrawals

The employee did not need to interact with his/her employer. Hence no question of visiting and waiting at the ex-company for the authorized person’s signature.

2. No documentation required

Upon successfully seeding the KYC details in the PF portal, and subsequently getting approval from his/her employer, an employee is free from the cumbersome documentation part of EPF.

3. UAN

An employee has to activate his/her UAN for seeding the KYC as well as for the case of withdrawal. Seeding KYC details is not possible if the employee has not yet activated his/her UAN. So an employee must ensure to activate his/her EPF beforehand.

4. PF Passbook

Upon activating the UAN, an employee can see his/her PF passbook. The employee can get his/her per month PF contribution.

5. Online PF transfer

An employee can even able to transfer his/her EPF account from one organization to another. But beforehand the employee must ensure to activate his/her UAN and inform his/her UAN to his/her present employer to avoid any duplication of UAN for the same employee.

Note: – Has to keep in mind if the KYC details are once seeded against an UAN, again generating an UAN for that same employee can lead to hackle for the employee in withdrawing his/her PF. An employee may have to go on liaisoning with the EPF authority and the employer may avoid or ignore the employee to provide help for hiding and/or not disclosing any material fact on his/her pre EPF a/c no. and/or employment.

Source: https://unifiedportal-mem.epfindia.gov.in/memberinterface/

Documents to be seeded in the EPF

1. Bank a/c no.
2. IFSC code
3. PAN Card no.
4. Aadhar Card no.

It is mandatory to seed the above mentioned documents no. in order to get the online EPF withdraw benefits.

Step by step to seed the KYC details is EPFO

1. Activate your UAN

Go to the EPF site www.unifiedportal-mem.epfindia.gov.in or simply copy and paste the link below.

https://unifiedportal-mem.epfindia.gov.in/memberinterface/no-auth/uanActivation/activationForm?_HDIV_STATE_=9-7-F9EE094167844B23BE254A8809594851

The following screen will come…(But to make sure that the employee has obtained the UAN from his/her HR for its smooth process.)

2. Fill up the details. Please, to make sure that the mandatory fields do not remain blank and the mobile no. which will be provided in this filed do not changed.

3. Upon feeding the UAN no., name, DOB and the Captcha click the ‘Get Authorization Pin’, the below screen will come up.

4. Please, to enter the OTP no. which will come in the mobile no. provided. So make sure that the mobile is kept beside while doing this UAN activation. Click the ‘I agree’ box and put the OTP in the box provided.

Note: OTP id will be created automatically, you just have to enter the OTP.

5. Congratulation, your UAN will get activated upon choosing the password and final submission!!

6. Go to the home page of the EPF portal https://unifiedportal-mem.epfindia.gov.in

Else can simply copy and paste the below link

https://unifiedportal-mem.epfindia.gov.in/memberinterface/

7. Put your UAN no., password, captcha and then click on the ‘sign in’ box.

8. Upon signing in the below screen will be opened.

9. From the ‘Manage’ option you can even change your e-mail id and/or mobile no.

Click on the KYC menu.

The below screen will be opened…

Fill up the red colour highlighted documents details, for the online withdrawal benefits and then click on the ‘save’ option.

10. Upon saving the same the below screen will come up, showing the status as ‘Pending KYC’.

11. After the employer approves the uploaded KYC by the employee, the status will get transformed as ‘Approved KYC’ like the below.

12. Though after clicking the ‘Save’ box, the data will automatically reflected into the employer’s EPF portal and want for approval of the same through the digital signature of the authorized person.

13. It is also suggested that the employee himself or herself do approach the Human Resource Department of the Company in writing stating to approve the KYC. In that case the letter should be attached with the photo copy of PAN card, Aadhar card and a cancelled cheque. Also please to make sure that take a receipt of the submission therein from the HR or the receive section.

14. The reason to submit the hard copy letter is that the employer or its representative cannot take the approval of KYC task into lethargic.

For processing Online Claim the following points to be remembered

1. The claims on the member has to satisfy that the UAN is activated
2. Aadhar number is seeded and has been verified by the employer.
3. Bank detail is seeded and the same is verified and approved too by the employer.
4. PAN card details are seeded and verified & approved accordingly by the employer.

It is the right of the employee to get his/her documents approved within one month from the employer, else the employee after submitting hard copy request letter to the HR can move to the EPF authority against its employer for not cooperating. To mention separately that the same right can be invoked by the ex-employee too.

Relief for the Employees if the employer is not approving his/her KYC or showing lethargy

1. RTI to the EPF department

The employee can file RTI to the EPF authority for the reason as to why still his/her KYC verification has not been done?

To make the RTI more authentic, the employee can attach the hard copy screen shots print outs with the RTI application. Else it’s always suggested to file the RTI through an expert so that the key ingredients are not missed out.

2. Complain to the EPF department

The employee can even make direct complain to the EPF authority in their grievance cell. The complain website is http://epfigms.gov.in/

Further, in this respect be noted that the site is for only submission of online complains. In case the employee has not obtained UAN no. from his/her employer and has activated the same, the employee cannot file the online complain through this portal.

3. Approach to the Employer or Director directly

Normally it is found that the HR takes care of all the EPF matters of a Company. Hence if the approval of KYC is urgent and has to be done by a date it’s not viable to go with the RTI or the online complain procedure.

In that case the employee can directly approach the Director of the Company and escalate the matter.

LawSikho has created a telegram group for exchanging legal knowledge, referrals and various opportunities. You can click on this link and join:

https://t.me/joinchat/J_0YrBa4IBSHdpuTfQO_sA

This article is written by Ramanuj Mukherjee, Co-Founder & CEO at iPleaders.

At iPleaders, we always believed in the power of communities. What we can do alone can be great, but the achievements of a single person will never match up to what can be achieved by a community.

At iPleaders, over 5 years, we built a very valuable community painstakingly. We built a community of learners. Many of the students of our first few batches are now industry leading professionals, CXOs, authors, hiring managers, bureaucrats and leading wherever they are.

However, we didn’t lose touch with them. Many of them are still a part of our community, and helping incoming students as mentors, telling us where to look to grow in the future, assisting in launching pathbreaking courses, making iPleaders club more reach and supporting our vision in more than one ways.

Sometimes we are not even aware of how students help each other. We always keep getting enriched by the discussions in the community WhatsApp groups. We are truly proud of this community.

We have been very selective about who gets to stay in this community. While anyone who takes any long term course of iPleaders is accepted as a provisional member of iPleaders Club (the official name of the community), after 6 months we evaluate if they have been really participating in the activities of the club or developing themselves. Those who have failed to reach certain benchmarks are removed from the community. It helps to keep the community agile, active and relevant.

Also, the part of the community are some very generous mentors who make a difference to many of the learners in our courses.

Here are some of the activities we do in the iPleaders club:

1. Create your dream CV. Write down not how it already is, but what you want to be in that CV. Discuss with your mentor while you make this CV. This exercise is very inspiring and gives amazing clarity to your actions. You can try this at home, but when you do it along with a community, it’s a different feeling altogether!
2. Interview 5 people like whom you want to become. How did they reach where they are now? What challenges did they face along the way? How did they overcome these challenges? What do they think you should do to improve your chances of success? Will they be willing to have a chat with you once in a month for 15 minutes and guide you? It’s amazing what people accomplished through these informational interviews. They found mentors. They got hired. They learnt how to network. Turning points in career were created.

We want to grow this community. With each passing year, it becomes a larger, more powerful network.

Come join us and experience it.

The membership of the club is complimentary for all those who take admission in this business law course (the very popular Diploma Course in Entrepreneurship Administration and Business Laws).

We have been at the cutting edge of business law education, leading this market in India by a big margin and producing results that are incredible for others. Only way to know the difference will be to experience it!

You can see here what our past learners have been saying.