Transactions in Cryptocurrency
There is no law regulating Cryptocurrency In India. In an interesting case the Chief Metropolitan Magistrate , Tis Hazari court vide its order dated 1.7.2021 in Hitesh Bhatia vs. Mr. Kumar Vivekanand  bearing Case No. 3207/2020  has dealt with a matter involving money transactions in buying bitcoins whereby the bank account of the person who received the money was freezed, this led to a complaint before the CMM which resulted in a direction for  registration of FIR in a complaint filed under section 200 CrPC and application under 156(3) CrpC.

Brief Facts of the case -Cryptocurrency In India

Brief Facts of the aforementioned case is that the The accused purchased Bitcoins from the complainant ,Mr Hitesh Bhatia, from a virtual wallet from an online portal namely Binance.  Surprisingly on one occasion the account was frozen , the Accused although accepted that the money transferred was illegal being  a scam, however the accused refused to return the bitcoins to the complainant , in such a scenario the complainant approached the SHO and thereafter DCP  however no FIR was registered. Thereafter the Complainant approached the Ld Magistrates Court, Tiz Hazari , Delhi whereupon directions were issued to police to register an FIR and to investigate suspicious activities have been carried out by this portal called Binance.

Jurisdiction of Court-Cryptocurrency In India

In view of the provisions of Section 179, 180 and 182 of Cr.P.C  the Magistrate Court has jurisdiction to try the matter and  directions were passed in the matter.

Court Observations  dealing with Cryptocurrency In India

The observations of the court also followed with a few guidelines which are essential to find out about the source of money and establishing the identity of parties .The investigation order was to see whether there was fraud on the part of the accused and whether the complainant has acted legally and also the position irregularity  of the online portal Binance .The Hon’ble Court laid stress that such online currency transactions would be governed by the general laws  of India namely PMLA, IPC, FERA ,, NDPS Act, existing tax laws  and abide by RBI regulations of KYC(know your customer) CFT which is combating of funding of terrorism and AML  (Anti- Money laundering requirements).

KYC is very much the responsibility of the intermediary which is Binance in this case to ensure the identity of the parties.

The Hon’ble Court observed that  protection under Article 19 (i)(g) of the constitution of India  i.e. the freedom to practice any profession, or to carry on any occupation, trade or business can be availed although  there is no  specific law regulating or banning, or monopolising cryptocurrency, only legitimate trade through legitimate intermediaries.

The Ld Magistrate also was of the view that it is important and significant to investigate if there is any negligence or complicity on the part of the online portal Binance so as  to hide the proceeds of crime or to fund any illegal activities through cryptocurrency, etc. In such a scenario the Ld Magistrate Court has passed directions to the Police station concerned to investigate and register the complaint  under the relevant provisions of the Indian Penal Code, 1860, PMLA and FEMA. Significantly the  Court also held that the  registration of FIR does not mean that the Accused is to be automatically arrested.

Whether complainant himself was acting legally?

Hon’ble Supreme Court in the case of Internet and Mobile Association vs. Reserve Bank of India vide Judgment dated 04.03.2020  set aside a 2018 RBI Circular however it did not deal with the legality of virtual currencies , the Hon’ble Supreme Court   observed that access to banking is the equivalent of supply of oxygen in any modern economy, and the total denial of such access to the persons who carry on a trade that is not prohibited by law cannot be said to be a reasonable restriction, and is extremely disproportionate. The RBI issued another   Circular titled as ‘Customer Due diligence for transactions in virtual currencies’ which was in a form of advisory  to  banks and financial institutions not to rely upon the Circular dated 06.04.2018 which was earlier set aside by the Hon’ble Supreme Court.

It has further directed all entities regulated by the RBI to carry out customer due diligence process in line with regulations governing standards for policies such as ‘Know Your Customer’ (‘KYC’), ‘Anti-Money Laundering’ (‘AML’) and ‘Combating the Financing of Terrorism’ (‘CFT’). The transactions in virtual currencies must also carry out the obligations under the Prevention of Money Laundering Act, 2002 (‘PMLA’) in addition to ensuring compliance with relevant provisions under the Foreign Exchange Management Act, 1999 (‘FEMA’) for overseas remittances.

Hence, the Magistrate Court held that the transactions in cryptocurrency still have to comply with the general law in force in India and the RBI regulations regarding KYC, AML and CFT. It is the responsibility of an intermediary i.e., Binance to ensure adequate safeguards against activities such as ‘mixing’ and other random cryptocurrency exchanges, which change the identity of Bitcoins being held in a virtual wallet. The traceability of Bitcoin transactions may even be managed through the Blockchain Analysis, but establishing their connection with the malicious actors is a complex issue, in case the intermediary is not adhering to the KYC norms.

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Order 1 Rule 10 CPC

Order 1 Rule 10 CPC or  Code of Civil Procedure, 1908 (in short, ‘CPC’),  is a provision for adding or removing a party to a suit and the object is for proper adjudication of the dispute at hand. It is well settled law that plaintiff is the “dominus litus”  a  latin maxim which essentially means  “master of suit”. It is so because it is the plaintiff who approaches the court for his relief and so has an edge in proceedings as it is  believed that the plaintiffs have approached the court with clean hands. Therefore there is a huge burden on the Plaintiff to prove his case.

The Hon’ble Supreme Court in Sudhamayee Pattnaik and Others versus Bibhu Prasad Sahoo and Others in CIVIL APPEAL NO. 6370 OF 2022 dated SEPTEMBER 16, 2022 has categorically stated that

“As per the settled position of law, the plaintiffs are the domius litis. Unless the court suo motu directs to join any other person not party to the suit for effective decree and/or for proper adjudication as per Order 1 Rule 10 CPC, nobody can be permitted to be impleaded as defendants against the wish of the plaintiffs”

Order VI Rule 17 of the CPC

The Provision of Order 6 Rule 17  of the Code of Civil Procedure, 1908 (in short, ‘CPC’) provides for amendment of pleadings. Very recently the Hon’ble High Court in NITIKA TALWAR vs DINESH TALWAR  in its Judgment passed on 08.11.2023 in  C.R.P. 263/2023 while  dealing with the provisions of Order 1 rule 10 CPC and Order 6 Rule 17 CPC , in this case the husband before the Family court had filed an application under Order 1 rule 10 CPC for impleadment of another respondent , the same was allowed by the Family Court. However the Hon’ble High Court set aside the order of the family court   which allowed  the Respondent No 2 to be impleaded. The Hon’ble High Court in para 4 of its judgment has held that “Without prejudice to the rights and contentions of the rights of
the respondent herein, the learned counsel for the respondent,
however, fairly admits that the proper course for the learned
Family Court was to seek an application from the respondent
under Order VI Rule 17 of the CPC before adjudicating on the
application under Order I Rule 10 of the CPC to implead
Mr.Ritesh Rai as a party respondent in the Divorce Petition.”

The hon’ble High Court  also granted liberty to file an application under Order VI Rule 17 of the CPC seeking an amendment to his Divorce Petition

Conclusion

It can therefore be concluded that prior to impleadment it is necessary to amend the pleading to establish that the impleadment is necessary for proper adjudication of the case. For more information kindly click here

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Transfer of  Domestic violence  case to Family Court

Transfer of  Domestic violence case to Family Court is an interesting topic of discussion and very recently The Hon’ble High Court of Mumbai in MISCELLANEOUS CIVIL APPLICATION NO.498 OF 2022 with MISCELLANEOUS CIVIL APPLICATION NO.500 OF 2022  pronounced on 2^nd February 2023 held in para 19 of  its  judgment  allowed the transfer of  a Domestic violence case to the family court where the divorce case was pending .

“Reverting back to the facts of the case, considering the pleadings of the parties in both proceedings pending before two different courts, there is the possibility of conflicting verdicts by two courts, and transfer will reduce the burden of one Court resulting in saving of judicial time; and moreover, the transfer of proceedings will not cause inconvenience to the wife as she will not have to travel outside Pune, therefore, for the aforesaid reasons, in my opinion, both miscellaneous civil applications deserve to be allowed.”

Is right of Appeal lost when DV case transferred to family court?

No the right of appeal is not lost . In Santosh Machindra Mulik Vs Mohini Mithu Choudhari, the Bombay High Court in Misc. Civil Application No.64 OF 2019 has held that “ no party can be said to be losing his/her right of appeal; what is lost is a further right of revision.”

Court in Sandip Mrinmoy Chakrabarty v. Reshita Sandip Chakrabarty (Family Court Appeal No.31 of 2020 decided on 26th February 2021) wherein this Court while considering an appeal arising out of judgment deciding proceedings under DV Act and Family Courts Act, 1984 held that right under section 29 of the Family Court Act is not taken away

Important Judgments;

i) Machindra Mulik Vs Mohini Mithu Choudhari-Bombay High Court in Misc. Civil Application No.64 OF 2019

ii) Sandip Mrinmoy Chakrabarty v. Reshita Sandip Chakrabarty (Family Court Appeal No.31 of 2020 decided on 26th February 2021)

Conclusion

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What is Default bail  and whats the provision of law ?

What is default bail  is a  question  asked very often . A default bail under Section 167(2) of the CrPC in simple words can be said in cases when   chargesheet is still not filed within the prescribed time period . Apart from that in  cases  the right  to default bail would arise when  the  prosecution files a preliminary or an  incomplete chargesheet, within the period prescribed for offences mentioned therein only to defeat the cause of bail .

How is Article 21 of the constitution of India and Section 167(2) CrPc connected 

Under Article 21 of the Constitution of India,  has its  co-relation with 167(2) of the CrPC which is fundamental rights , of right to life and liberty . There are  many Judicial precedents of the Hon’ble Supreme Court and various High Courts  which have laid emphasis on the co relation between the two.

It is important to keep in mind that  Section 167 of the CrPC  deals with investigation and not about cognizance by the Magistrate.

Is there a concept of automatic bail due to failure in filing charge sheet within prescribed time?

Yes,  when there is  failure on the part of investigation  to file the charge sheet within the prescribed 90/60 day period, as the case may be , that in  itself would result in automatic grant of default bail.

When does the time start for calculation of default bail?

When the  Magistrate remands  the accused person or persons from that day onwards , and within the time   no charge sheet filed within 60 or 90 days  as is contemplated under section Section 167 (2)(a)(ii) of the CrPC,

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Petition under Section 25 of the Guardians and Wards Act, 1890

Welfare of the child is of paramount importance while deciding cases of child custody . When the a ward is not in custody of the guardian , the court weighs various grounds before deciding whether the ward should be given back to the guardian considering the welfare of the child will be justified .  Either of the party if dissatisfied with the order of the Family court may approach the High Court in appeal against the Order of the Family court. A petition under S.25 Guardians and Wards Act is a first step towards informing the court of your grievances.

Appeal under Section 47 of the Guardians and Wards Act, 1890

Against order of impugned  judgment  passed by Family court one has the option of preferring an  Appeal under Section 47 of the Guardians and Wards Act, 1890

The financial status of either party is not the sole determining factor when considering the issue of custody though it may be relevant as has been held in the case of Dhanwanti Joshi v. Madhav Unde (1998) 1 SCC 112 and reiterated in Smriti Madan Kansagra v.Perry Kansagra 2020 SCC OnLine Del 1414.

Visitation Rights

Usually visitation rights are granted to either spouse who does not have custody of the child. Only in extreme cases where it appears that visitation rights should be denied in such cases court disallows but that’s very rare.

Very notable judgment of  Yashita Sahu v. State of Rajasthan (2020) 3 SCC 67, the Hon’ble Apex Court observed that the child, especially of tender age, requires love, affection, company and protection of both the parents, he is not an inanimate object which can be tossed from one parent to the other. The Court must weigh each and every circumstance very carefully before deciding the manner in which the custody should be shared between the parents. This is to ensure that the child does not lose social, physical and psychological contact with either of the parents. It is only in extreme circumstances that even the visitation rights may be denied.

Conclusion

In case of custody of the ward it is always seen that the welfare of child is of paramount importance . Company of both parents are essential for love and affection of the child. A child grows well in a healthy environment and therefore irrespective of whether is it the mother or father , the essential condition is welfare of the child , the other spouse is not denied visitation rights unless its an extreme case.

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When is probate required is a very common question that arises in the minds of  legal heirs who are unaware of its importance. Although registration of will not mandatory however it is advisable to do so and although both unregistered and registered wills can be challeged in the court of law .  Applying for probate though is not necessary always in some states , but  it is in many ways essential to apply for grant of probate.

In Rabindra Nath Mukherjee and Another v. Panchanan Banerjee (Dead) by LRs. and Others5 , the Hon’ble Supreme Court  had observed importance of  Will when registered and the Sub-Registrar certifies that the same was read over to the executor who, on doing so, had admitted the contents. Therefore in  each case, the court must be satisfied as to the mandate and requirements of clause (c) to Section 63 of the Indian Succession Act.

In Jagdish Chand Sharma v. Narain Singh Saini (Dead) Through LRs. and Others6 , the Hon’ble Supreme court  referring to Section 63 of the Indian Succession Act had illustrated that the provisions contemplate that in order to validly execute the Will, the testator would have to sign or affix his mark to it or the same has to be signed by some other person in his presence and on his direction. Further, the signature or mark of the testator or signature of the person signing for him has to be so placed that it was intended to give effect to the writing as a Will. Section 63 mandates that the Will should be attested by two or more witnesses each of whom has seen the testator sign or affix his mark to it or has seen some other person sign it in the presence and on the direction of the testator, or has received from the testator a personal acknowledgement of his signature or mark, or the signature of such other person and each of the witnesses has signed the Will in the presence of the testator, though it is not necessary that more than one witness be present at the same time and that no particular form of attestation is necessary. The execution and attestation of the Will are mandatory in nature and any failure and deficiency in adhering to the essential requirements would result in invalidation of the instrument of disposition of the property.

Sections 68 and 71 of the Evidence Act, which relate to proof of documents required by law to be attested, read as under:

“68. Proof of execution of document required by law to be attested.—If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence: Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied.

71. Proof when attesting witness denies the execution.—If the attesting witness denies or does not recollect the execution of the document, its execution may be proved by other evidence.”

In Jagdish Chand Sharma (supra) referring to Sections 68 and 71 of the Evidence Act, it was observed:

“22.2. These statutory provisions, thus, make it incumbent for a document required by law to be attested to have its execution proved by at least one of the attesting witnesses, if alive, and is subject to the process of the court conducting the proceedings involved and is capable of giving evidence. This rigour is, however, eased in case of a document also required to be attested but not a will, if the same has been registered in accordance with the provisions of the Registration Act, 1908 unless the execution of this document by the person said to have executed it denies the same. In any view of the matter, however, the relaxation extended by the proviso is of no avail qua a will. The proof of a will to be admissible in evidence with probative potential, being a document required by law to be attested by two witnesses, would necessarily need proof of its execution through at least one of the attesting witnesses, if alive, and subject to the process of the court concerned and is capable of giving evidence.

22.3. Section 71 provides, however, that if the attesting witness denies or does not recollect the execution of the document, its execution may be proved by the other evidence. The interplay of the above statutory provisions and the underlying legislative objective would be of formidable relevance in evaluating the materials on record and recording the penultimate conclusions. With this backdrop, expedient it would be, to scrutinise the evidence adduced by the parties.

The judgment in M.B. Ramesh (supra) also refers to Janki Narayan Bhoir v. Narayan Namdeo Kadam8 in which with reference to Sections 68 and 71 of the Evidence Act, it was observed:

“22. […] 6. … It is true that although a will is required to be attested by two witnesses it could be proved by examining one of the attesting witnesses as per Section 68 of the Evidence Act.

Highlighting the aforesaid aspects in M.B. Ramesh (supra), it was held that:

“28. As stated by this Court also in H. Venkatachala Iyengar and Jaswant Kaur, while arriving at the finding as to whether the will was duly executed, the Court must satisfy its conscience having regard to the totality of circumstances. The Court’s role in matters concerning wills is limited to examining whether the instrument propounded as the last will of the deceased is or is not that by the testator, and whether it is the product of the free and sound disposing mind [as observed by this Court in para 77 of Gurdev Kaur v. Kaki]. In the present matter, there is no dispute about these factors.”

In Jagdish Chand Sharma (supra) reference was made to the facts of the case in M.B. Ramesh (supra) to observe that on consideration of the totality of circumstances emerging from the narration given by the attesting witness, the omission on the part of this witness to specifically state about the signature by the other attesting witness on the Will in the presence of the testatrix would amount to failure to recollect the fact which deficiency could be replenished with the aid of Section 71 of the Evidence Act. It was observed that the validity of the Will in M.B. Ramesh (supra) was upheld in the context of the attendant singular facts.

The Hon’ble Supreme Court in  RAJ KUMARI AND OTHERS  VERSUS  SURINDER PAL SHARMA , CIVIL APPEAL NO.9683 OF 2019,ARISING OUT OF SPECIAL LEAVE PETITION (CIVIL) NO. 26957 OF 2018) granted leave  while stating in para 28 of its order

“The Will which purportedly makes the bequest, is oddly described as a Will Deed. This possibly explains why Surinder Pal Sharma had claimed in his reply, that he was the owner of the tenement even during the lifetime of the mother Suhagwanti. It is in this context that we have read the different portions of the testimony of Raj Kumari and Surinder Pal Sharma; the notice and the reply to hold that there exists grave doubt whether the “Will Deed” was executed and is a “Will” as it purports to be. The marriage of Veena Malhotra as per her wish is not challenged. The testator was an illiterate lady. Even if we are to accept signatures of the testator and the witnesses, we cannot ignore “other evidence” that Suhagwanti and her family members did not understand the true nature of the document executed. There are substantial and good reasons to legitimately suspect and question execution of the Will, which Surinder Pal Sharma, as the propounder of the Will, has not been able to repel and remove so as to satisfy this Court that the Will was validly executed. For these reasons, we would hold that execution of the Will has not been proved by “other evidence” in terms of Section 71 of the Evidence Act”

29. Looked and examined from all angles, we are satisfied that the present appeal should be allowed and the judgment of the High Court should be set aside. Accordingly, we restore the judgment and decree dated 17.01.2018 passed by the court of Additional District Judge-03, North District, Rohini District Courts, New Delhi. There would no order as to costs.

CONCLUSION:

It is therefore essential that the intention of the testator must be established under circumstances and merely a signed will is not sufficient unless it be proved that the testator knew on what he or she was signing. For more information kindly click here

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