Cheque Signed at a Police Station– Admissible or Non-Admissible? Myth and Reality: The True Position under Sections 138 and 139 of the Negotiable Instruments Act  

Cheque Signed at a Police Station– Admissible or Non-Admissible?

Myth and Reality: The True Position under Sections 138 and 139 of the Negotiable Instruments Act

In recent times, there has been widespread speculation and a growing misconception, frequently advanced by advocates during the course of arguments, that cheques signed at a police station are inadmissible and cannot sustain prosecution under Section 138 of the Negotiable Instruments Act, 1881. This contention is often raised as a preliminary objection to challenge the very maintainability of cheque bounce complaints. It is usually asserted that such a proposition is supported by a judgment of the Hon’ble Supreme Court. However, this narrative, though repeatedly echoed, does not reflect the correct legal position.

Absence of Any Binding Supreme Court Ratio

In reality, there is no binding judgment of the Hon’ble Supreme Court holding that a cheque becomes invalid, illegal, or inadmissible merely because it was signed in a police station. The Supreme Court has not laid down any ratio declaring that the place of execution of a cheque determines its admissibility under Section 138 of the Negotiable Instruments Act. Any argument to the contrary is based on a clear misconception of law.

Nature of Observations Relied Upon

At best, in certain factual contexts, the Supreme Court has made observations cautioning that obtaining cheques in a police station or in coercive circumstances should ordinarily be avoided. Such observations are advisory in nature and were made in the peculiar facts of those cases. They cannot be elevated to the status of a binding precedent or treated as laying down a universal rule of invalidity.

Statutory Presumption under Section 139 NI Act

The Supreme Court has consistently reiterated that once the execution of a cheque is admitted or proved, a statutory presumption arises under Section 139 of the Negotiable Instruments Act that the cheque was issued towards discharge of a legally enforceable debt or liability. This presumption operates irrespective of the place where the cheque was signed.

Scope of Rebuttal by the Accused

If a cheque is alleged to have been obtained in a police station or under pressure, such circumstance does not itself render the cheque inadmissible. At the highest, it provides the accused with a factual foundation to attempt rebuttal of the presumption under Section 139 by demonstrating lack of voluntariness or absence of legally enforceable liability. This is a matter of evidence and trial, not a ground for outright dismissal of the complaint.

Place of Signing Is Legally Irrelevant

The Supreme Court has clarified time and again that the place of signing of a cheque is legally irrelevant. What is determinative is whether the cheque was voluntarily issued and whether it represents a subsisting and legally enforceable debt or liability at the time of its presentation. The law does not recognise any prohibited venue for signing a negotiable instrument.

Ingredients of Section 138 Remain Paramount

For constituting an offence under Section 138 of the Negotiable Instruments Act, the courts focus on the statutory ingredients—issuance of cheque towards debt or liability, presentation within validity, dishonour, issuance of statutory notice, and failure to make payment within the prescribed period. The physical location where the cheque was signed does not find place among these mandatory requirements.

Misuse of Half-Read Judgments

The growing tendency to rely on selective sentences or isolated observations from judgments, without appreciating their factual context, has contributed to the spread of this misconception. Law cannot be interpreted through viral half-truths or courtroom folklore; it must be read as a coherent whole, keeping the ratio decidendi firmly in focus.

Conclusion

Misguided narratives, however confidently advanced, cannot override settled Supreme Court jurisprudence. The admissibility and enforceability of a cheque depend on voluntariness and existence of legally enforceable liability, not on the place of execution. Law must be read in context, not consumed through convenient misconceptions.

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What Happens When a Trust Turns Out to Be a Scam? A Recovery Guide for Investors

 What Happens When a Trust Turns Out to Be a Scam? A Recovery Guide for Investors

Trusts are meant to serve noble purposes—whether for charity, education, or social welfare. Unfortunately, not all are genuine. Some operate as fraudulent setups, luring people with promises of returns or benefits and then misappropriating the funds. If you or someone you know has invested in a trust that turned out to be a scam, the situation may feel overwhelming. The good news is: there are legal remedies to seek recovery. This blog explains the steps investors can take.

1. File a Criminal Complaint

- The first step is to bring the fraud to the notice of law enforcement.

- FIR with the Police or Economic Offences Wing (EOW): Register a case under cheating (Section 420 IPC), criminal breach of trust (Sections 406/409 IPC), forgery, and related offences.

- If an FIR already exists, investors can file an intervention or representation to ensure their claims are recorded.

A strong criminal case ensures investigation, arrests, and possible freezing of assets.

2. Approach the Regulatory Authority

- Depending on how the trust is structured, investors should also alert regulators:

- Registrar of Trusts / Charity Commissioner – if it’s a registered public trust.

- SEBI – if the trust collected funds like an investment or collective investment scheme.

 - RBI – if it functioned like a deposit-taking body.

  - MCA (Ministry of Corporate Affairs) – if registered as a company (e.g., a Section 8 company misused for fraud).

This parallel complaint ensures the scam is scrutinised from multiple angles.

3. Seek Freezing and Attachment of Assets

Investigating agencies can approach courts to freeze the bank accounts and properties of trustees The Enforcement Directorate (ED) may also intervene if money laundering is suspected,freezing assets prevents trustees from siphoning off or selling properties before recovery.

4. File a Claim Petition

Once assets are seized or attached, courts usually invite victims to file claims. Investors must:

- Submit proof of investment (receipts, bank records, agreements, etc.).

- File a claim petition before the trial court or special court.

-Wait for verification and pro-rata distribution (if assets are limited).

- This is the most direct route to actual monetary recovery.

5. Explore Civil and Consumer Remedies

Alongside the criminal case, investors can:

- File a civil recovery suit to demand refund with interest.

- Approach consumer courts, if services were promised in return for money.

• Form a group or association of victims to file a collective action, which often carries more weight.

6. Practical Solutions & Prevention

 - Never share OTP, PIN, or UPI collect approvals.

- Verify before trusting investment, charity, loan, or emergency requests.

- Avoid pressure tactics like “urgent”, “last chance”, “don’t tell anyone”.

- Educate family members, especially seniors and teenagers.

 - Use official apps and verified contacts only.

Conclusion

Recovery is possible, but it’s a time-consuming legal process. Coordinated action by victims and timely filing of complaints are crucial. Before investing, always verify a trust’s registration, approvals, and compliance with regulatory authorities. When a trust scam unfolds, the path to justice involves criminal, civil, and regulatory action working together. Investors should not give up—persistent follow-up and coordinated representation greatly improve the chances of recovering their hard-earned money.

Mediation: A Modern Path to Peaceful Dispute Resolution resolution

Mediation: A Modern Path to Peaceful Dispute Resolution

Mediation is a peaceful way to solve problems without going to court. It involves a neutral person called a mediator, who helps the two sides talk to each other, understand each other’s views, and find a solution that both can agree on. The mediator does not decide who is right or wrong but simply guides the conversation. Everything discussed in mediation stays private and confidential. It’s based on trust, respect, and cooperation rather than arguments and blame blame.

Benefits of Mediation

Mediation offers several advantages over traditional litigation. It is both time-efficient and cost-effective, allowing disputes to be resolved in weeks or months rather than years. The process is private and confidential, protecting the reputation and interests of those involved. Mediation helps preserve relationships, which is particularly important in family, business, and community disputes. It also ensures party control over outcomes, since the resolution is crafted by the parties themselves rather than imposed by a court. Moreover, mediation encourages creative and flexible solutions, making it possible to reach settlements that serve everyone’s interests instead of rigid legal remedies.

Approach of Courts Towards Mediation

Courts have increasingly acknowledged mediation as a valuable tool to reduce case backlogs and promote amicable settlements. In India, Section 89 of the Code of Civil Procedure, 1908 empowers courts to refer suitable disputes to mediation. The Supreme Court and several High Courts have consistently emphasized mediation as a means of achieving justice outside the adversarial framework. Laws such as the Family Courts Act, 1984 and the Commercial Courts Act, 2015 further encourage pre-litigation mediation. Through these initiatives, the judiciary recognizes mediation not as a substitute but as an essential component of the justice delivery system.

Convenience and Accessibility

One of the most appealing features of mediation is its convenience. Sessions can be arranged at the convenience of all parties, and the environment is informal, relaxed, and free from courtroom pressures. This encourages honest communication and reduces emotional strain. The process is adaptable and less technical, making it accessible even to individuals unfamiliar with legal proceedings. With the rise of virtual and online mediation platforms, parties from different locations can now resolve disputes efficiently without physical meetings, making justice more inclusive and reachable.

Party’s Autonomy in Mediation

Mediation empowers the parties by giving them complete control over the process. They have the freedom to choose the mediator, decide the terms of the settlement, and even discontinue the process if they wish. This autonomy fosters a sense of ownership and responsibility, increasing the likelihood of voluntary compliance with the agreement. Unlike litigation, where the judgment is binding and may leave one party dissatisfied, mediation results in a mutually crafted solution, promoting cooperation and long-term peace.

Mediator vs. Judge: A Comparative Role

The role of a mediator differs significantly from that of a judge. A judge adjudicates disputes based on law and evidence, delivering a binding judgment that determines right and wrong. In contrast, a mediator acts as a facilitator, guiding the discussion and encouraging collaboration without imposing a decision. Court proceedings are formal, structured, and public, whereas mediation is informal, flexible, and confidential. While judges deliver justice through law, mediators achieve harmony through understanding, aiming for a win–win outcome rather than victory for one side.

Mediation vs. Litigation: Comparative Benefits

When compared with litigation, mediation stands out for its speed, affordability, and emotional ease. Litigation can stretch over years, draining time, money, and energy, while mediation offers quick resolutions. Court proceedings are public, but mediation protects privacy. The adversarial nature of litigation often damages relationships, whereas mediation fosters dialogue and respect. Because mediation outcomes are reached voluntarily, settlements are more likely to be respected and followed. Overall, mediation combines efficiency, economy, and empathy — qualities often missing in traditional litigation.

Future Role of Mediation

 The future of mediation appears promising as societies move toward more collaborative forms of justice. With the establishment of court-annexed mediation centers and the enactment of the Mediation Act, 2023, India has taken major steps to institutionalize and strengthen mediation practices. There is growing emphasis on pre-litigation mediation and online dispute resolution (ODR) to reduce court congestion. Mediation is gradually becoming a cultural shift in conflict resolution — focusing on restoring harmony rather than merely determining fault.

Conclusion

Mediation represents more than an alternative to litigation; it is the evolution of justice itself. By promoting communication over confrontation and cooperation over compulsion, it redefines how disputes can be resolved with dignity and understanding. It saves time, preserves relationships, and delivers outcomes that are both fair and satisfying. In a world where peace is often overshadowed by legal battles, mediation stands as a bridge to understanding. As jurist Nani Palkhivala aptly said, “The greatest victory is not in winning a case, but in resolving a conflict.”

The Bharatiya Nyaya Sanhita, 2023 (BNS): The modern Incarnation of IPC -Understanding the Major changes 

The Bharatiya Nyaya Sanhita, 2023 (BNS): The modern Incarnation of IPC -Understanding the Major changes 

By SangsLegal

19th January 2023

The Bharatiya Nyaya Sanhita, 2023 (BNS) was promulgated on December 25, 2023, serving as the country's renewed penal code by superseding the Indian Penal Code, 1860 (IPC).The Bharatiya Nyaya Sanhita will consist of 358 sections, which is a reduction from the 511 sections in the IPC. This includes the addition of 20 new crimes, while the imprisonment sentence has been elevated for 33 offenses. Furthermore, the fine amount has been raised in 83 crimes, and mandatory minimum punishment has been established for 23 crimes. Additionally, community service is now an option as a penalty for six offenses. Lastly, 19 sections have been repealed or eliminated from the legislation. Key changes in the BNS include:

a   a)    Incorporation of community service as a form of punishment

           b)  Offences against the body

      c) Sexual offences against women

             d ) New provision of Treason

           e) Overlap with Unlawful Activities (Prevention) Act, 1967

f     f )  Terrorism

             g)  Organised crime

              h) Mob lynching

i      i)   Deletion of certain offence

I

  I            I.  Definitions

i.                   Section 2(3) of BNS “Child” New Definition

The newly introduced provision [NEW] outlined in Section 2(3) of BNS establishes the definition of 'child' to encompass individuals who are below 18 years of age.

ii.                 Section 2(8) of BNS/Section 29 of IPC “Document”

Section 2(8) of BNS provides that documents include ‘electronics and digital record’.

iii.              Section 2(10) of BNS/Section 8 of IPC “Gender”

The specific provision in section 2(10) explicitly includes transgender individuals and offers a clear definition, which contrasts the previous scenario in section 8 of IPC.

iv.              Section 2(21) of BNS “movable property”

The scope of "movable property" under Section 2(21) of BNS differs from the definition stated in Section 22 of IPC. In contrast to Section 22, Section 2(21) of BNS does not solely encompass property in corporeal form. This means that movable property, as defined in BNS, includes property of any kind, whether tangible or intangible, except for immovable property. It encompasses both physical assets and intangible assets such as patents, copyrights, and actionable claims.

II.                Section 21 Offence committed by a child

 Nothing is an offence which is done by a child above seven years of age and under twelve, who has not attained sufficient maturity of understanding to judge of the nature and consequences of his conduct on that occasion.

III.             Section 22 and 23  Mental illness and intoxication

Any act committed by an individual suffering from mental illness, who, at the time of the act, is unable to comprehend its nature, or that it is morally or legally incorrect, shall not be considered an offense.

Likewise, any act performed by an intoxicated individual, who, due to the intoxication, is incapable of understanding the nature of the act or its moral and legal implications, shall not be deemed as an offense; except in cases where the substance causing the intoxication was administered to the person without their knowledge or consent.

IV.            Section 69 sexual offenses against women and children by deceitful means

It states, "Whoever, by deceitful means or making by promise to marry to a woman without any intention of fulfilling the same, and has sexual intercourse with her, such sexual intercourse not amounting to the offence of rape, shall be punished with imprisonment of either description for a term which may extend to ten years and shall also be liable to fine."

V.               Section 70(2) Gang Rape of a woman under eighteen years of age

Gang rape of a woman under eighteen years of age carrying a punishment of imprisonment for life, i.e., imprisonment for the remainder of that person's natural life, and with fine, or death.

VI.            Community Service has been included in BNS as a punishment for the first time for petty offences

The inclusion of Community Service as a form of punishment for minor offenses is a new development in BNS. Previously, Section 53 of IPC outlined five types of punishments, namely Death, Life Imprisonment, Rigorous Imprisonment, Simple Imprisonment, Forfeiture of Property, and Fine. However, Section 4(f) of BNS has introduced a sixth type of punishment known as Community Service.

Petty offenses include failing to appear in response to a proclamation, attempting suicide, preventing or restricting the exercise of a public servant's lawful authority, petty theft on return of theft money, intoxicated public misbehavior, defamation, etc. BNS prescribes community service as punishment for these types of offenses.

In BNS, the definition of "community service" is not explicitly provided. But the Explanation to section 23 of BNSS sheds light on its meaning. According to this, community service refers to the mandatory work assigned by the Court to a convict as a disciplinary measure. This form of punishment aims to benefit the community, and the individual performing community service shall not receive any form of remuneration.

Offenses that qualify for community service as a penalty

BNS allows for the following offenses to result in community service as a penalty:

Section 202  : Public servant engaging in unlawful trading

Section 209 : failing to appear in response to a proclamation made according to Bharatiya Nagarik Suraksha Sanhita 2023 section 84.

Section 226 : attempting suicide

Proviso below section 303(2) : For the first time, a person found guilty of theft in which the value of the theft property is less than five thousand rupees faces community service once the property is returned or restored.

 Section 355 : Intoxicated public misbehavior

Section 356 : Defamation

IV. Section 103(2) Punishment for mob-lynching (new provision)

The new Section 103(2) of BNS stipulates that if five or more people act together to commit murder on the basis of race, caste, community, sex, place of birth, language, personal belief, or any other reason, each member of the group will be punished with either death or life in prison, as well as a fine.

V.         Section 111(1) Definition “Organised Crime”

A new provision has been introduced to address the issue of organized crime, as it was not previously recognized as an offense under the Indian Penal Code (IPC). In the past, individual states, like Maharashtra, had their own laws, such as the Maharashtra Control of Organised Crime Act, 1999 (MCOCA), to define and punish organized crime. However, the enactment of Section 111 in the BNS now offers a specific provision to tackle organized crime at a national level.The following are considered as “Organised crime”

i.                   Any continuing unlawful activity falls under this category, which includes kidnapping, robbery, car theft, extortion, land grabbing, contract killing, economic crimes, cybercrimes, trafficking in people, drugs, weapons, or illicit goods or services, as well as trafficking in people for the purpose of prostitution or ransom.

ii.                 Activity conducted by individuals or a group associated with an organized crime syndicate: This particular activity is performed by individuals acting independently or collectively, either as members of an organized crime syndicate or on their behalf.

iii.              Unlawful methods: This form of activity entails utilizing violence, threats, intimidation, coercion, or any other illegal means.

iv.              Objective is to gain advantage: This activity is conducted with the purpose of acquiring a direct or indirect, tangible advantage, which may include financial benefits.

  A.  Clause (iii) of Explanation below Section 111(1) Definition of “Economic offence”

The term "economic offences" encompasses various unlawful activities aimed at obtaining financial gains through different means, such as:

i)                   Engaging in criminal breach of trust

ii)                Committing forgery

iii)              Counterfeiting currency notes, banknotes, and government stamps

iv)              Participating in hawala transactions

v)                Engaging in mass-marketing fraud

vi)              Organizing schemes to defraud multiple individuals

vii)           Carrying out acts with the intention to defraud banks, financial institutions, or other establishments.

B . Clause (i) of Explanation below Section 111(1) Definition of “Organised crime syndicate

 A definition of "organised crime syndicate" refers to a collective of three or more individuals who engage in ongoing unlawful activities, either independently or collaboratively as a syndicate or gang.

Punishment for committing organized crime

 a.  In the event that an individual engages in organized criminal activities, such activities have caused the loss of life, the offender shall be subject to either capital punishment or lifelong imprisonment, in addition to a fine of no less than ten lakh rupees.

b. Section 111(2) -In any other scenario, the individual shall face imprisonment for a minimum of five years, and the maximum sentence may include lifetime imprisonment. Additionally, a fine not less than five lakh rupees shall be imposed.

c. Section 111(3) outlines the punishment to individuals involved in aiding, attempting, or promoting organized crime, as well as engaging in behavior that supports the advancement of organized crime activities.

d. Section 111(4) establishes the penalties imposed upon individuals who are found to be affiliated with an organized crime syndicate.

e. Section 111(5) mandates the imposition of penalties for purposely harboring or concealing an individual who has committed the offense of engaging in organized criminal activities.

f. Section 111(6) prescribes the punishment for possessing any assets acquired or obtained from the perpetration of organized crime, including proceeds or property acquired through such illicit activities.

g. Section 111(7) stipulates the punishment for an individual who possesses any property on behalf of a member of an organized crime syndicate, without being able to provide a satisfactory explanation for it.

 VI. Section 112 Definition of New Offence of “Petty Organised Crime”

This is a new provision in BNS. There is no such provision in IPC.

Section 112 provides as under :

A person who is part of a group or gang, whether individually or collectively, is considered to engage in petty organized crime if they are involved in activities such as theft, snatching, cheating, unauthorized sale of tickets, unauthorized betting or gambling, selling of public examination question papers, or any other comparable criminal acts.

Punishment for petty organized crime

Whoever commits any petty organised crime shall be punished with imprisonment for a term which shall not be less than one year but which may extend to seven years, and shall also be liable to fine.

i.                    Snatching

According to the definition stated in section 304(1) of the BNS, the term "snatching" shall hold the same meaning. The BNS further clarifies in section 3(2) that any expression explained in any part of the document shall be interpreted consistently throughout. However, in the circumstance where the offender carrying out "snatching" (such as chain snatching or mobile snatching) is involved in a gang or group, the offense of snatching is subject to punishment under this section.

If an individual engages in criminal acts as a lone wolf, operating independently without any affiliation to a gang or group, they will be subject to punishment under section 304(2). It is important to note that Section 304 is a recent addition which addresses snatching as a distinct offense. However, it is worth noting that the punishment for such offenses under section 304(2) is comparatively less severe than that prescribed under section 112.

ii.                 Theft

The definition of the term "theft" is explicitly given in section 303(1) of BNS. Within this sub-section, "theft" encompasses various activities such as trick theft, theft from vehicles, dwelling houses, or business premises, cargo theft, pickpocketing, theft through card skimming, shoplifting, and theft of an Automated Teller Machine. However, it is important to note that terms like "trick theft", "card skimming", "shoplifting", "pickpocketing", etc., are not explicitly defined in BNS. Therefore, these terms should be interpreted according to their commonly accepted meanings..

If an individual involved in theft is associated with a gang or group, the offense falls under the purview of this section. However, if the theft is carried out by a lone individual, not part of  a gang or group, it is punishable under section 303(2) of BNS. It is important to note that the punishment prescribed under section 303(2) is comparatively lesser than that under section 112.

In addition, it should be noted that theft committed by a sole operator, as stated in section 303(2), is considered a compoundable offense under section 359 of the Bharatiya Nagarik Suraksha Sanhita,2023 (BNSS). On the other hand, if theft is committed by an individual who is part of a gang, it is classified as an offense under section 112 and is not compoundable.

iii.              Cheating

In light of section 3(2) of BNS, the definition of "cheating" stated in section 318(1) of BNS will also be applicable for section 112 purposes. Nevertheless, it is important to consider the following points:

-If the offender engaging in cheating is associated with a gang or group, this section allows for the punishment of the offense.

-On the other hand, if the offender operates alone, without any affiliation to a gang or group, the offense of cheating falls under section 318 and will be punishable accordingly.

VII. Section 113 Definition of New Offence of Terrorist Act 

Section 113 provides as under:

Whoever engages in any action with the intention to pose a threat or potentially jeopardize the unity, integrity, sovereignty, security, or economic security of India, or with the aim to instill terror or potentially instigate fear among the people or a specific population within India or any foreign nation;

 -By  causing or intending to cause harm, destruction, or danger, whether through the use of bombs, dynamite, or other explosive substances, inflammable substances, firearms, lethal weapons, poisonous or noxious gases, chemicals, or any other hazardous substance (including biological, radioactive, nuclear or any other similar material), or through any means that may potentially result in

 -a person's death or injury, or the occurrence of loss, damage, or destruction to property,

 - or the disruption of essential supplies or services within the Indian community or any foreign nation.

 -Furthermore, damage to the financial stability of India due to production, smuggling, or circulation of counterfeit Indian paper currency, coin, or any other material.

 -Also, any harm or destruction to property within India or a foreign country that is utilized or intended to be utilized for the defense of India or for any other purposes of the Indian Government, State Government, or any of their agencies.

 -Or intimidates by means of criminal force or the show of criminal force or attempts to do so or causes death of any public functionary or attempts to cause death of any public functionary; or

 -threatens to kill or harm someone while detaining, kidnaps, or abducts them, or takes any other action to force government of India, a state government, a foreign government, an international or intergovernmental organization, or any other individual to do or refrain from doing any act,

commit a terrorist act.

Punishment for commission of ‘terrorist act’

If a person commits a terrorist act and it results in the death of any individual, they will be subject to either a death penalty or life imprisonment, in addition to being liable for a fine. If the terrorist act does not result in any fatalities, the punishment will be imprisonment for a minimum of five years, which may extend to life imprisonment, along with a fine.

Punishment for conspiracy, attempt, advocacy, abetment, advice, incitement, or knowingly facilitate the commission of a terrorist act

Whoever conspires or attempts to commit, or advocates, abets, advises or incites, directly or knowingly facilitates the commission of a terrorist act or any act preparatory to the commission of a terrorist act, shall be punished with imprisonment for a term which shall not be less than five years but which may extend to imprisonment for life, and shall also be liable to fine.

Punishment for organising camp aimed at training terrorists or recruiting persons for committing terrorist acts

Whoever organises or causes to be organised any camp or camps for imparting training in terrorist act, or recruits or causes to be recruited any person or persons for commission of a terrorist act, shall be punished with imprisonment for a term which shall not be less than five years but which may extend to imprisonment for life, and shall also be liable to fine.

Punishment for being a member of organisation involved in terrorist act

Any person who is a member of an organisation which is involved in terrorist act, shall be punished with imprisonment for a term which may extend to imprisonment for life, and shall also be liable to fine.

 Harbouring or concealing a terrorist

Anyone who willingly harbours, conceals, or makes an attempt to harbour or conceal an individual, with the knowledge that said individual has committed a terrorist act, shall face imprisonment for a minimum of three years, and potentially lifelong imprisonment. Additionally, they will be subject to fine.

This sub-section shall not apply to any case in which the harbour or concealment is by the spouse of the offender.

Punishment for possessing proceeds of terrorist acts

Anyone found to be in possession of any property derived or obtained from the execution of a terrorist act or acquired through the execution of a terrorist act will face imprisonment for a duration ranging up to a lifetime, in addition to being subject to a fine.

A police officer holding the rank of SP or higher is authorized to make the determination regarding whether an offense should be registered under the Unlawful Activities (Prevention) Act (UAPA) or under the applicable section mentioned.

VIII. Section 106-Changes in punishment in hit and run cases

Regarding death resulting from negligence, Indian Penal Code (IPC) covers it under Section 304A. Correspondingly, Section 106 of the BNS Act refers to Section 304A as well. According to Section 106(1) of the BNS Act, individuals who cause the death of a person due to rash or negligent acts, which do not constitute culpable homicide, may face imprisonment for a term of up to five years.

The new law increases the punishment for causing death by negligence from a maximum of two years to a maximum of five years. This change reflects a stricter approach to cases of negligence resulting in death.

Section 106(2) Offender escaping or failing to report (New Provision)

Section 106(2) of BNS encompasses an additional provision in sub-section (2) concerning instances where the perpetrator flees the scene of an incident without reporting it to a police officer or Magistrate. In such scenarios, a stringent punishment is enforced, encompassing a maximum imprisonment sentence of ten years along with a fine.

The application of section 106(2) punishments does not occur solely based on the driver fleeing the scene in order to avoid being attacked by angry bystanders. The offense is only committed if the driver not only flees the scene but also fails to promptly report the incident to the Police or Magistrate.

 IX. Negligent act of Medical practitioner [New Provision]

In case of registered medical practioner if negligent act is done by a registered medical practitioner while performing medical procedure, he shall be punished with imprisonment of either description for a term which may extend to two years, and shall also be liable to fine.

X. Sedition (Section 124-A IPC) /Treason (Section 152 BNS)

BNS has omitted section 124A of IPC under which sedition was a punishable offence. Rather than being classified as another offense under BNS, treason falls under Section 152 of BNS, encompassing acts that jeopardize India's sovereignty, unity, and integrity.

Section 152-Treason, Act endangering sovereignty, unity and integrity of India

Section 152 of BNS provides that whoever, purposely or knowingly, by words, either spoken or written, or by signs, or by visible representation, or by electronic communication or by use of financial mean, or otherwise, excites or attempts to excite, secession or armed rebellion or subversive activities, or encourages feelings of separatist activities or endangers sovereignty or unity and integrity of India; or indulges in or commits any such act shall be punished with imprisonment for life or with imprisonment which may extend to seven years, and shall also be liable to fine.

The clarification provided for section 152 of the BNS emphasizes that commenting on the government's actions or measures to seek their lawful alteration, without inciting or attempting to incite activities related to secession, armed rebellion, subversive activities, separatist sentiments, or jeopardizing the sovereignty, unity, and integrity of India, will not be considered an offense under this section.

 XI. Section 178- Mere possession of fake currency notes is no more punishable

Section 178 of the BNS has incorporated changes to Section 242 of the IPC to safeguard individuals from legal consequences solely based on possession of forged or counterfeit currency notes or bank-notes. As per the revised legislation, mere possession of counterfeit currency notes or bank-notes is no longer considered as an offense. The amended law, recorded as section 178 in the BNS, stipulates that in order to constitute an offence possession of counterfeit currency note has to be accompanied by the intention to use the same as genuine.

 XII. Section 224 of BNS “Suicide” Definition

While Section 309 IPC forbids attempts to commit suicide Section 224 BNS omitted the section and introduced new definition of  that it is illegal to attempt suicide in order to coerce or restrict the exercise of lawful authority.

XIII. Section 318 of BNS “Cheating”

In a recent change, the Indian Penal Code (IPC) has consolidated various forms of cheating into one provision called Section 318 of the BNS. This new provision increases the punishment for cheating to a maximum of three years of imprisonment, compared to the previous one-year sentence under the IPC. Moreover, for a more severe form of cheating that

involves knowledge of causing wrongful loss to someone whose interests the offender is obligated to protect, the punishment has been further increased to a maximum of five years of imprisonment.

XIV. Expanded definition of “theft” vis a vis IPC [Section 303(1) read with section 112(1) and section 2(21)

The offense of "theft" has been broadened to encompass the theft of intangible items, such as the theft of data (e.g., credit card skimming), identity theft, and the misappropriation of intangible assets. This expansion aligns with the extended definition of "movable property."Theft is covered by section 303 of BNS. Corresponding provisions were sections 378 and 379 of BNS

The scope of the term "movable property" in BNS is broader compared to its definition in IPC.

i.                   Section 2(21) of BNS has removed the phrase “are intended to include corporeal” that was previously present in the definition of movable property in section 22 of IPC. Consequently, movable property now encompasses all types of property except immovable property, regardless of whether it is in tangible or intangible form. This expanded definition under BNS includes assets such as patents, copyrights, and other intangible assets, as well as actionable claims.

ii.                  the definition of theft has been broadened to include data theft, encompassing the unauthorized access and manipulation of data, including the online theft of funds through hacking bank accounts. Additionally, the theft of intangible assets, data, card skimming, and online theft through hacking bank accounts or cloning mobile devices are all deemed as theft under this revised definition of movable property.

iii.              Based on section 3(2) of BNS, section 303 will encompass offenses falling under the definition of "theft" as set out in the inclusive explanation of section 112(1). In accordance with this explanation, the term "theft" not only refers to the act of stealing, but also includes various other offenses such as trick theft, theft from vehicles, dwelling houses or business premises, cargo theft, pick pocketing, theft through card skimming, shoplifting, and theft of Automated Teller Machines.

Section 303(2)] Prescribed punishment

Harsher punishment in the form of rigorous imprisonment

Under normal circumstances of theft, the period of imprisonment remains unchanged at 3 years under both the previous and current legislation. Nevertheless, if an individual commits theft again (second or subsequent conviction), the BNS enforces a stricter punishment in the form of rigorous imprisonment. The duration of this imprisonment will be a minimum of one year and can be extended up to five years, in addition to a fine.

First-time offenders involved in petty theft cases

As stated previously, for first-time offenders involved in petty theft cases where the value of stolen property is less than ₹5000, community service can be imposed as an alternative punishment instead of imprisonment or a fine, under the proviso to section 303(2) of BNS. This option is applicable if the offender either returns the value of the stolen property or restores the stolen property itself.

Theft by snatching

It is important to note that the punishment for theft, as stated in section 379 of IPC, is also applicable to theft by snatching. However, under the provisions of BNS, theft by snatching is considered a distinct offense falling under section 304 of BNS, which entails even stricter penalties.

Mandatory Summary trial of offences of petty theft

The monetary limits for petty thefts triable in summary trials in terms of value of stolen property involved has been increased from ₹2000 (section 260(1) of CrPC) to ₹20000 (section 283(1) of Bharatiya Nagarik Suraksha Sanhita (BNSS))

 Summary trials are rendered obligatory for petty and less serious cases

In compliance with Section 283 of BNSS, summary trials are rendered obligatory for petty and less serious cases. Contrastingly, according to Cr.PC, it was within the discretion of the Magistrate to opt for a summary trial for petty and less serious offenses as per Section 260(1) of Cr.PC, which employed the phrase "may, if he thinks fit, try in a summary way all or any of the following offenses." However, Section 283(1) of BNSS has replaced the term "may" with "shall" and has further enhanced the monetary limits for the summary trial of petty offenses.

The offence of theft when punishable u/s 112 and Section 303(2)

If an individual carries out theft alone, without any involvement of a gang or group, it will be deemed an offense and subject to prosecution under section 303 (2) .However, if the offender is part of a gang or group, engaged in the act of theft, it will be considered petty organized crime and punishable according to section 112.

 XV. Section304- Snatching (New offence)

Section 304 of the BNS introduces a novel provision. Previously, the IPC did not classify snatching as a separate offense from theft under section 379 of the IPC.

The term "snatching" refers to situations where an offender forcefully and swiftly seizes or takes away movable property from a person or their possession with the intent to commit theft.

Anyone found guilty of snatching will face imprisonment for a period of up to three years and may also be subjected to a fine.

When offence of snatching is punishable under this section and when punishable u/s 112

If an offender conducts snatching as an individual (solo and without any affiliation to a gang or group), this act will be subject to punishment as per this section.

However, if the offender, engaged in snatching activities such as chain snatching, mobile snatching, etc., is part of a gang or group, the offense of snatching will be punishable under section 112 as a minor form of organized

Deletion of certain offenses

i.                   The Section 377 of the IPC offense has been removed by the BNS in  line with the Supreme Court’s Judgement in Navtej Singh Johar Vs Union of India.

ii.                 The BNS likewise omits the offence of attempting suicide, which is defined by Section 309 of the IPC. This is a progressive omission that sees suicide attempts as mental health emergencies rather than criminal offenses.

iii.              Adultery is not listed as a crime in BNS in line with Supreme Court’s Judgement in Joseph Shine Vs Union of India

Conclusion

The Bharatiya Nyaya Sanhita 2023 represents a commendable effort to modernize the Indian Penal Code and align it with contemporary societal needs. The adoption of gender-neutral language, enhanced protection for women and children, and provisions to address economic offenses and cybercrime demonstrate the evolving priorities of the legal framework. However, successful implementation of the revised code necessitates comprehensive sensitization, awareness campaigns, and efficient justice delivery mechanisms. By addressing these key issues, India can ensure that the Bharatiya Nyaya Sanhita 2023 serves as a significant stepping stone towards a more just and equitable society.

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Exploring Recent Developments in Indian Succession Laws

Exploring Recent Developments in Indian Succession Laws

( An Insight into Inheritance of Property Rights under the Hindu Succession Act 1956 : Part II)

By SangsLegal.com

9th December 2023

Indian succession laws have undergone significant changes in recent years, aimed at providing a more rationalized and uniform approach to the distribution of assets after an individual's death. The recent changes to the Indian Succession Laws and the consequential case laws carry wide-ranging implications. They have reinforced the principles of equality, non-discrimination, and fairness in property inheritance, irrespective of gender. These developments have brought about a significant transformation in societal attitudes by challenging age-old customs that deprived women of their rightful share in the ancestral property.

I. New General Rules:

In an effort to simplify and modernize the succession process, the government introduced new general rules. The Hindu Succession (Amendment) Act, 2005 (39 of 2005) was enforced with the objective of eradicating gender-biased clauses present in the Hindu Succession Act, 1956. As per the amendment, a daughter of a coparcener is granted equal rights and becomes a coparcener from the moment of birth, just like a son.

A. The Hindu Succession (Amendment) Act, 2005:

Under this amendment, daughters now have coparcenary rights in the ancestral property of the Hindu Joint Family. They have the same legal entitlement as sons, even if the father passed away prior to 2005. This amendment rectified the gender bias prevalent in the original 1956 Act and contributed to empowering women by improving their economic and social standing within their families.

B. The Indian Succession Act, 1925:

The Indian Succession Act governs the distribution of assets in cases where a person dies without leaving a will. Recent developments have introduced provisions to simplify the process of intestate succession. This includes adopting a more inclusive definition of heirs, incorporating the rights of adopted children, and introducing provisions for non-resident Indians (NRIs) in order to address the complexities arising from global mobility.

II. Amendments:

A. The Personal Laws (Amendment) Act, 2019:

This amendment aimed to address the complexities arising from personal laws concerning various communities in India. It aimed to rationalize and harmonize succession laws to ensure fairness and equal treatment for all individuals, irrespective of their religious affiliation. However, it must be noted that personal laws still serve as the primary source of guidance for succession matters within specific religious communities.

B. The Indian Succession (Amendment) Act, 2020:

The Indian Succession (Amendment) Act, 2020 revised the Indian Succession Act, 1925. One significant change introduced by this amendment is the recognition of “living wills” or advance medical directives. This provision allows individuals to express their consent regarding medical treatment in the event of incapacitation. It ensures that their wishes are respected and alleviates potential disputes among family members during such difficult times.

III. Recent Developments in Indian Succession Laws

Recently, significant developments have been observed in succession laws. These substantial modifications to succession laws are attributed to amendments or judgments delivered by various courts in the country.

  1. The amendment 2005 had retrospective effect, enabling daughters to claim their equal rights to ancestral property, including proceedings initiated before the amendment. The Supreme Court emphasized the importance of gender equality and reinforced the rights of daughters, even in cases where the father had passed away prior to the amendment.

(Prakash & Ors v. Phulavati & Ors (2015)

2     2. Even if a father had died before the 2005 amendment, daughters still had the right to claim an equal share in the ancestral property. The daughter's right was not dependent on whether her father was alive or not when the amendment was enacted. (Danamma @ Suman Surpur & Anr. v. Amar & Ors (2018)

           3.  The daughters possess the right to inherit their parents' self-acquired property, as well as any other property over which they hold complete ownership. This rule extends to situations where a daughter's parents died intestate without leaving behind a will prior to the enactment of the Hindu Succession Act in 1956. (Arunachala Gounder (dead) v. Ponnuswamy)

 4.     In the event that a Hindu woman dies intestate without a valid will and does not have any children, the property she inherited from her father or mother would be transferred to the descendants of her father. Conversely, the assets she inherited from her husband or father-in-law would be granted to the heirs of her husband.

 5.    If a married woman, who has a spouse and children, passes away, her properties, including any inherited properties, would be transferred to her husband and children as stated in Section 15(1)(a) of the Succession Act. ( Agnes alias Karpaga Devi)

 6.  According to the recent ruling of the Madras High Court (HC), under the Indian Succession Act of 1925, when a man passes away without leaving a will, his assets are to be divided among his widow and children. Evidently, the high court has clarified that the mother of the deceased holds no right to her late son's properties.

 7. An adopted child holds the status of a Class-I heir, thereby possessing the same rights as a biological child. However, if the adoptive father has been disqualified from inheriting any property due to their involvement in a criminal act, the adopted child cannot claim ownership of the paternal property. Furthermore, even if the adoptive father converts to another religion, and the adopted child follows the same religious beliefs, the child is still unable to inherit the ancestral replique montre de luxe property.

8. According to the ruling of the Telangana High Court, once a child is adopted, they no longer hold the status of a coparcener within their birth family. As a consequence, they relinquish any rights or claims they may have had over the ancestral property of their birth family. However, if a partition of the property had already occurred before the adoption, and the adopted individual had been allotted a specific portion of the property, they would be allowed to carry that portion with them to their new family.

 9.  A Hindu man abandons his wife without obtaining a legal divorce and subsequently remarries; the initial marriage remains valid under the law, making the first wife and their children legitimate beneficiaries. However, if a divorce takes place, the first wife will no longer have any rights to claim the property, and all her personal belongings will be exclusively hers. In cases where both partners financially contribute to acquiring a property, it is important to maintain proper documentation that clearly indicates the percentage of monetary contribution made by each spouse. This documentation becomes crucial in the event of a divorce.

 10.   If a husband's first wife has passed away or divorced before he remarries, the second wife is entitled to all the legal rights on her husband's property. This includes ownership and inheritance rights. Furthermore, her children hold equal rights to their father's share, alongside the children from the first marriage. However, it is crucial to note that if the second marriage is not recognized as legal, neither the second wife nor her children enjoy the privilege of being legal heirs in the ancestral property of the husband.

 11.  The Gujarat High Court recently held that children born out a widow’s first marriage have a right in her property the woman receives from her second husband. This remains true even if the children were born out of wedlock or through an illicit relation.

 12. During the wife’s lifetime, the husband has no right over her property. If the wife passes away, her share will devolve upon her husband and children alike. If the wife gets her share in her lifetime, the husband can inherit the same. If she hasn’t inherited from her parents or ancestors during her lifetime, the husband cannot claim it. If a man has bought property in the name of his wife with his own finances, he can retain the ownership even after her death.

13.  A Hindu father or any other managing member of a Hindu Undivided Family possesses the authority to gift ancestral property solely for a 'pious purpose', which refers to a gift intended for charitable and/or religious endeavors. Consequently, a deed of gift related to ancestral property made 'out of love and affection' does not fall under the purview of the term 'pious purpose'.

14. The coparcenary right to inherit family property extends even to children born out of a live-in relationship, as decided by the Supreme Court. Offspring born to live-in partners who have resided together for a significant duration are entitled to assert their rights over their father's ancestral property.

15. The situation of half-blood children often occurs when one child is born to a father with a different spouse or partner, while another child is born to the same mother but with a different spouse or partner. In these cases, if one parent is common to both children due to remarriage or divorce, a preference is typically given to the child who is biologically closer to that parent in terms of inheritance replique hublot and other matters.

16. The children born out of void or voidable marriages have the right to inherit their parent's assets, as per the recent ruling. It should be noted that this ruling is specifically applicable to Hindu joint family properties governed by Hindu Mitakshara Law.

17. According to Section 16 (3) of the Hindu Marriage Act illegitimate children born out of wedlock have limited rights to inheritances, specifically pertaining to their parents' properties only and not those of any other relation. This provision determines the inheritance rights of illegitimate children, stating that they are solely entitled to inherit their father's personal possessions, excluding any property belonging to their paternal family. However, a Supreme Court verdict has affirmed that unmarried children have the right to claim not only their father's personal assets but also the properties inherited from their ancestors.

18. The Kerala High Court recognized the rights of a Christian wife in accordance with Indian succession laws. It was concluded by the court that if a legally acceptable will is not present, the wife is entitled to an equal share of her husband's estate, which encompasses jointly owned properties as well. This verdict underscores the importance of gender equality and equitable distribution of wealth. (Nelson Elias vs. Mariya Gracy)

19. The Surrogacy (Regulation) Act, 2020, for instance, provides legal recognition to intended parents by granting them the same rights and responsibilities as biological parents. In doing so, it ensures that children born through surrogacy are not disadvantaged in terms of inheritance and other legal rights.

20. The Supreme Court addressed the concept of ‘benami’ transactions in the context of succession laws. The court held that a benami transaction cannot be relied upon to establish the title of the person claiming under the benami transaction. This judgment aimed to prevent fraudulent practices and promote fairness in succession matters. ( Kale v. Deputy Director of Consolidation)

Conclusion:

The recent developments in Indian succession laws demonstrate a progressive shift towards equality, inclusivity, and modernization. The introduction of new general rules, provisions, amendments, and landmark case laws has aimed to ensure gender equality, harmonize personal laws, simplify the succession process, and protect individuals' autonomy. These reforms have greatly contributed to a more just and equitable distribution of assets after an individual's demise. Nonetheless, it is essential to continue monitoring the implementation and interpretation of these laws to ensure their effective application and address any challenges or gaps that may arise.

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