Unique Legal Solution

11 Civil Rights which are important In India

noreply@blogger.com (Unique Legal Solutions) — Wed, 05 Feb 2014 05:51:00 +0000

1. Right of Life:

It is the most central of all social equality. Man must live first preceding he can do anything. The State must make satisfactory procurement for the individual well being of its residents. This right likewise intimates the right to self-preservation and counteractive action of suicide.

2. Right to Liberty:

This right suggests free development. Each subject has complete flexibility to move inside the State. None could be confined self-assertively without trial and there must be procurement for change of wrongful capture: In India if anyone is captured by the administration, he must be normally put before the closest officer inside 24 hours of his capture.

3. Right to Property:

Property in majority rules system is viewed as a hallowed organization. It makes a feeling of ownership and a motivating force to work. It is prize for one's capacity and is key for the benefit of man and social order. Machiavelli once said, "Man may overlook the homicide of his father yet he will always remember the misfortune of his property". The communists, obviously, support the abrogation of property. Then again, all vote based States ensure this right to their natives.

4. Right to Contract:

The right to contract implies that each native can live, work, acquire and openly contract on the support of fairness with different natives. Contract is a common assention between two or more gatherings forcing a few commitments on one another. This agreement is the vital premise of social order.

5. Right to Freedom of Speech:

Right to flexibility of discourse is an essential need of man. There might be no social order unless its parts are allowed to express their slant and trade their perspectives without limitations. The subjects have, hence, the right to uninhibitedly scrutinize the arrangements and movements of powers.

6. Freedom of Press:

The right to flexibility of press is nearly connected with right to opportunity discourse. It implies the right to distribute what a man can legally talk. Conclusion of the subjects might be distributed in daily paper and flyers. Daily papers are the most compelling organ in cutting edge majority rules system to mould popular supposition. Free discourses and reactions are fundamental for the accomplishment of majority rules system.

7. Right to Form Association:

Man exists in gathering and structures affiliations. He has distinctive parts of life and every angle may be spoken to in an acquaintanceship. This is what is known as the "part" nature of man. The State is viewed as a political acquaintanceship. Be that as it may, it is not by any means the only acquaintanceship in the social order. There are different cooperations like social, instructive, generous and religious affiliations in a social order. Men have right to structure affiliations.

8. Right to Religion and Conscience:
Religion is profoundly established in the way of man. A singular ought to be allowed to accompany any religion he loves. He might as well have complete freedom of conviction and love. The State has nothing to do with the religions of natives. A large number of the current States are, in this manner, common States.

9. Right to Culture and Language:

Each native will accompany and improve his own particular society and dialect. The minorities in a majority rule government ought to be permitted to ensure their rights and benefits. In the Indian Constitution, there is procurement for instructive and social rights. A subject in India is permitted to protect his dialect, script and society. He is likewise liberated to be conceded in any instructive organization arranged in the nation.

10. Right to Equality:

It implies the nonattendance of legitimate victimization any singular, assembly, class or race. All ought to be equivalent in the eyes of law and all may as well get equivalent insurance of law. The State ought not oppress any national on grounds of religion, race, dialect, rank or sex. Right to Equality is an essential right in the Indian Constitution.

11. Right to Family:

The last not the slightest, is the right to gang. The family framework acquires some social ethics man. Family is frequently called the "support of municipal excellencies". The right to family is consequently, one of the basic rights and it accommodates the battle to marriage, the right to support the virtue of such marriage, the right to authority and control of youngsters and the right of legacy.

These are a percentage of the vital social equality of a subject in a cutting edge State. These rights are not supreme. They might be confined for the investment of the State. Indeed the rights to life, freedom and property are limited by the state throughout war and crisis. Throughout the time of war and crisis, it is the obligation of all residents to secure and maintain the power of the State, regardless of the possibility that they need to relinquish their lives.

Do you need an Attorney or Can You Represent Yourself, Discuss?

noreply@blogger.com (Unique Legal Solutions) — Fri, 11 Jan 2013 07:54:00 +0000

The above mentioned question is a highly contentious issue which has been a matter of debate for many decades amongst people and especially common people who have constantly questioned the presence of attorney in the judicial system of the country. The common man is of the view that courts are forums established for delivering justice and man who is aggrieved and comes to this forum is in much better position to explain or present the matter in comparison to an attorney as the aggrieved person is the first person to experience the events and aware about the facts of disputes. On the other hand, an attorney is of the view that by virtue of his training in law, he is in much better position to understand the matter and present the matter. Therefore to understand and to answer this very contentious issue, it is important to understand some very basic concepts that run through this question. It is also essential to see the both sides of the coins to positively come to the conclusion whether we need attorneys or can we just represent ourselves without any help from attorneys.

It is first important to look at the definition of law. Law are set of rules that are enacted by one of the organs of the government to govern the conduct of the countrymen. In India, the Parliament makes the laws and these govern the lives of the people. Law is a code of conduct that governs the nation and is a necessity of a modern day nation state. It provides for the working of the government and provides for rights and liabilities of people who are forming the nation state.

Law is often described as complex set of rules that are of complex nature and have characteristic of being extremely vast. An attorney is a person who is trained in law and is empowered to represent people in the judicial system that is courts of the country. The difference between an attorney and layman is expertise of an attorney in law. A layman may know the existence of a law but is not trained to work and apply the law. An attorney is on the other hand is a person who understands the law and knows how to apply laws to different situations and circumstance. An attorney can give different interpretations to law which possibly cannot be given by a layman or a common man. An attorney understands the nature of law and the working of a legal system. An attorney role is not limited to just court rooms but expands to all those areas where the law touches the lives of people. These may include administrative matters, contract matters or issues that require the state to act. Law governs the society and hence, it plays a very important role in the structure of nation state. A person therefore can either choose to appoint an attorney or can choose not to use the expertise of attorney.

An attorney role in a dispute pertaining to complex matter is definitely an attractive proposition to end the dispute and reach a favourable conclusion. An untrained person may find difficult to apply law and give interpretations to law. An attorney on the other side having known the rules and procedures of the court can present the arguments in a better way in comparison to a person untrained in law. However, in many matters especially pertaining to administration, role of attorneys are made limited. It is preferred to present one’s own point of view across the respective body. In many countries common people who are untrained in law are encouraged to represent themselves before the judicial authorities. On the hand in India, there has been a growing trend to use the expertise of an attorney. In J. K Aggarwal v. Haryana Seed Development 1991 AIR 1221 case, the Hon’ble Supreme Court of India allowed the appellant side to be represented by a lawyer in disciplinary enquiry in the view of natural justice as the respondent side was being represented by law trained person and it was felt that a law trained person representing the matter from one side was unfair to the other side who is not man of law as stated by the Hon’ble court. This case is highly significant as it indicates the increasing role of attorney whose role is just not limited to disputes pending in courts but to matters outsides the courts even in disciplinary enquiries and clearly indicates that skills of law trained person in matter of dispute are far much better than untrained person. In the respective matter, the appellant was initially not allowed to engage the services of trained attorney. There have been many instances where services of attorney were engaged with the view that they provide a better defence and present the matter a professional way. Thus the role of attorney is highly significant in the country. There is code of conduct for attorneys and by virtue of it they maintain high standards of professionalism and present matter before the courts to the best of their abilities.

Common people can also represent matter before the courts but they are required to follow the rules and procedures of the courts. These court procedures can be easily adopted and followed only with the help of specialised skills which are developed only after attending formal training in a law school. In appellate stage, attorneys play a highly significant role as appellate stage involves complex and highly technical aspects of laws which are sphere where attorneys are better equipped in comparison to common man or lay man. Attorney’s role is highly significant in getting a favourable conclusion. Common people are allowed to present the matter before the High Court and Supreme Court of India by presenting the petition in person but the said person is required to take permission of the Hon’ble forums.

This entire debate therefore centres on the choice exercised by the aggrieved person. The aggrieved person may choose to appoint an attorney to represent the matter or could represent himself in court. The aggrieved person if is of the opinion that he is fit to present the matter before the court i.e. he understands the working of courts, understands the different interpretation given to laws by various courts, knows the application of law and can present argument, cross examine and with stand cross examination then may choose to present the matter before courts or other forum that gives him a choice to represent himself. It is important to note here that the state endeavours to give an opportunity to represent himself either through an attorney or if he desires, then himself.

It is submitted that laws are published in the official gazette and the general public can access it. In today’s time people are much more aware of their rights and duties and laws are readily available through electronic media and other modes. This aspect has been recognised by the Hon’ble Supreme Court of India and the Hon’ble court has introduced a system of PIL i.e. public interest litigation where common people can raise issues and present matters concerning public interest in Courts.

A person can therefore present the matter and represent himself in courts but this can hold true only for those who understand laws. However, there are many people in India and in other parts of world that are not aware of laws or their rights. Attorney comes to rescue of this class of people. Attorneys role also become highly significant in some spheres where highly skilled knowledge is required like taxation, intellectual property matters or criminal law. For example under criminal law, the state acts on behalf of the aggrieved person. The accused is not regarded as guilty until proven so and onus lies on the prosecution to prove the accused guilty. It is here that the role of an attorney is highly significant as he will present the matter in a much more professional manner with a better understanding of law.

Hence, the question whether we need an attorney or can we represent our selves is a question can be understood from both sides that is one from layman point of view and other from attorney’s point of view. The question thus falls within the domain of choice of the individual whether he shall exercise engage the service of attorney or not. Attorneys are creation of the judicial system and area specialised class that is created to help the common man in matters where law touches their lives. It is for the individual to decide whether he needs an attorney or can do without him. An attorney is only an instrument helping the individual get justice, enforce rights and make life easier in highly elaborate and complex judicial system. It is submitted that attorney are indispensable members of the society whose services can only make life easier as they provide specialised assistance which shall only help and not create problems and their role is significant just like any other people who are specialising in other spheres like medicine, management.

Rajya Sabha Passes the Motor Vehicle Amendment Bill 2012

noreply@blogger.com (Unique Legal Solutions) — Tue, 11 Dec 2012 11:42:00 +0000

The Rajya Sabha passed the Motor Vehicle Amendment Bill 2012 on 4 December 2012. This bill is now pending before the Lok Sabha and shall become law after its approval by it. The bill seeks to amend some provisions of Motor Vehicles Act, 1988 and aimed to provide stringent guidelines for issue of driving licenses and provide enhanced penalties for various offences under the act.

Some of the salient features of the act are:

Guidelines for issuance of driving licenses.
Imposition of penalties and issuance of challans for violations.
Imposition of penalties for “overloading” the vehicle.
Penalty to be borne by the consignor in case the documents in possession establish that the offence was committed under the orders of the consignor.
Increased fine for “not wearing helmet” or “seat belt” or for “jumping red light”.
Provision for fine has been introduced for “use of mobile phones” while driving.
Fine shall be imposed for “drunken driving” and punishment may extend to 2 years imprisonment. The punishment shall be in respect of content of alcohol found in the body of driver.
Repeated offenders shall be fined stiffer.

Pros and cons of Motor Vehicle Bill 2012

Pros: The stringent provisions of amendment act shall help in effective enforcement of laws.

Cons: The increased rate of fine shall put unnecessary burden on citizen.

Legal Guidelines required for Starting a Business in India

noreply@blogger.com (Unique Legal Solutions) — Wed, 17 Oct 2012 05:50:00 +0000

These are the following legal guidelines required for starting a business in India:

A) Choose a Legal Business A person who wishes to start a business is first and foremost required to check and see whether the business which he wishes to start is a lawful business with a lawful object in the eyes of law that is; it is not prohibited under any law that is in force. For example the following business is prohibited:

Wagering Business i.e. betting or gambling is prohibited under law.
Trade of prohibited items like animal skin.
Sale of some animal skin specified under the Wildlife Act is also prohibited.

B) Choose the Type of Business A person is secondly required to decide how he desires to operate his business whether he will be operating as a:

proprietorship,
firm of partners,
A company either limited by shares or with unlimited liability, a public limited or private limited company.
Limited Liability Partnership i.e. LLP.

Proprietorship Firm: Proprietorship is a business entity that is owned and run by one person i.e. the Proprietor. There is no distinction between the proprietor and proprietorship in the eyes of laws. They are one and the same thing. Proprietorship does not require any registration with any government agency. In fact the PAN card of the Proprietor is used for filing income tax returns of the business i.e. Proprietorship. But the name of the proprietorship can be registered as a trade mark. A bank account can be opened in the business name and all indirect tax registrations can be done in the name of the proprietorship firm also.

Partnership Firm: All partners who have entered partnership agreement are called as partners of the Firm. Under this category, the business is run by the partners. Partners are basically all those people who come together with the intention to carry out a business with the aim to gain profit and share profit and looses in case they are incurred. The partners should be including two or more persons who carry out business on behalf of each other and act for themselves and on behalf of other partners and thus act as agents of each other. These partners contribute to this business and share profits and losses, conduct business in accordance to the partnership agreement entered by them. Partnership Firm can be registered under Indian Partnership Act. A partnership Firm has unlimited liability of the partners.

Private and Public Companies: A company is an association of people who have come together to carry out business with the aim of profit. The special feature about this association is that it has been given a separate and distinct legal identity/personality which makes this entity separate from its members. Company is basically a creation of statute that is Companies Act 1956. Company business is carried out by the Directors. Law has imputed a legal personality to this entity and this fact makes it different from proprietorship or firm. The company is governed by the provisions of Companies Act and not by any agreement as in case of firm. There is no agreement entered by the members of the company amongst themselves to carry out affairs of the company and if there is a contract to conduct affairs then, it is according to a contract with the company which has a legal personality or is a legal entity on its own. It has a personality of its own and members of the company have their individual identity. The affairs of the company are carried out in accordance to the documents of Memorandum of Association and Articles of Association that are filed at the time of formation of the company with Registrar of Companies.

It is important to understand the concept of shares before understanding entities called limited company or a public limited company. A company requires capital to run the business and this capital which is invested to carry out the said business activities is called the ‘share capital’. This capital of the company is divided into ‘shares’. ‘Shares’ basically means a share in the share capital of the company. The people who hold such shares are called shareholders.

Limited Company: A limited company is a company whereby the liability of the shareholders towards company‘s creditors is limited to the capital that was originally invested by them.
In practice all companies are limited companies as under this category liability of shareholder is limited as contrast to a company with unlimited liability where liability of the shareholders towards the debts is unlimited. These companies where liability of shareholder is unlimited are generally not much found in the business world due to lack of their economic feasibility.

Private Limited Company: Private Limited Company is a company where shares are held in private hand and transfer of shares is limited to the members or directors of the company and prohibits any invitation /deposits of capital from person other than members, directors of the company. The company is not allowed to invite general public to subscribe to the share or in simple words the general public cannot invest in the company through mode of buying shares. Under the Companies Act 1956, private limited company is a company with a minimum paid up capital of 1 lakh rupee. A public limited company is a company on the other hand with a minimum paid up capital of 5 lakhs rupees where shares can be bought by the general public i.e. general public is invited to subscribe to the shares of said company by issuing a prospectus.

Limited Liability Partnership: A LLP is a business enterprise that is hybrid of both partnership and company. It is an enterprise that consists of partners who conduct the business in accordance to an limited liability agreement with the view to gain profits and at same time LLP has a distinct personality of its own and capable of being sued in the name of LLP.

C) Select The Name Of Business The third legal requirement for starting the business is naming the Business. The name of the Company or firm or proprietorship or LLP should not be prohibited under the Emblems and Names (Prevention of Improper use) Act, 1950 or State Emblem of India (Prohibition of Improper Use) Act, 2005 or any other law that is in force and places restrictions on naming the business respectively. The following are some of the basic requirements that should be kept in mind before naming businesses:

A company or a firm should not use State Emblem prescribed under the Schedule of Emblems and Names (Prevention of Improper use) Act, 1950 or anything which gives an impression that the business is run or is under the patronage of the government of India in case it is not so that is, no written consent is made in favor of the respective business.
Public Limited Company is required to be added in case of Public limited companies and in case of Private Limited Company the term Private Limited is to be added.
The business name should not be same or similar to the trade name of other enterprise running similar or same line of business or should not be giving impression of running on the goodwill of well established business enterprise thereby violating the trade mark law or being accused of passing off under common law.
For examples in case of eCommerce business i.e. online shopping, the owners of the said business should not name their business after any brands of goods that are being sold through their website or name the online shopping website after any well known company unless written permission has been taken on that behalf by the respective brand or they could found guilty of offenses under cyber law that is cyber squatting.
A person can name his/her company after his own name. In case his organization name is similar to another company’s name then he can continue to run his business under the said name only if the name was used with honest and bonafide intention by him. In case any dispute arises in future then, the person is required to satisfy the test laid by the respective Act prohibiting the same like for instance under the Trade Mark Act 1999.
A person can name his company in a manner that indicates the kind of business activity in which he is engaged.

D) Legal Process Upon deciding the form in which the person wishes to operate his business and naming his business, the person may start the process which shall help him to operate the respective form.

In case of a firm, the person is required to enter into a partnership agreement with all the terms, conditions mentioned and may choose to register the firm with the Registrar of Firms and in case the firm is a banking firm with more than 10 partners then it is obligatory to register the Firm.
In case the person chooses to operate as a company then the respective person generally who is promoter is required to file an application in Form No 1 A along with the Memorandum of Association and Articles of Association with all the necessary details like Name Clause, Registered Office Clause, and Object Clause that are clearly defining line of business, place of activity that is registered office etc and the manner in which the business shall operate as prescribed by the Companies Act 1956 with Registrar of Companies. In case of public limited company, prospectus as prescribed by the Companies Act 1956 is required to be filed.
In case of LLP, the person is required to register the incorporation document along with the statement by the Chartered Accountant, Company Secretary or Cost Accountant stating that all the requirements prescribed by the Limited Liability Partnership are complied with as prescribed by the respective Limited Liability Act with the Registrar of Companies where the business is situated.

E) Other Requirements The person is required to thereafter to check whether his business requires any clearances from Government Authorities or licenses from the local licensing Authority to operate like in case of Restaurants, coaching institutions etc.

In case of business of Export or Import of goods outside India or to India, a person is mandatorily required to apply for Import-Export number that is IEC to start import or export business.
The person who is operating his business as a shop running essential commodities is required to check that commodities bought from wholesalers or sold from his shop are fulfilling the safety standards and are not adulterated and complying with food adulteration prevention acts respectively.
In case the person is running factory then it is essential to get environmental clearance from respective Boards under Water and Air Pollution Prevention Acts and install safe disposal of harmful waste by converting it into to less toxic waste as prescribed by the respective Acts.
In case of a public limited company, the business of the said company can commence only after the Registrar of Companies issues the certificate of commencement as prescribed by the Companies Act 1956.

F) Memberships The person may choose to register its organization with chamber of commerce or any statutory organization where registration of his business is mandatorily required. The person is also required to check whether the business which he wishes to operate is coming under any Social Security Scheme like Public Liability Insurance, Workmen Compensation Act 1948 (in case the business includes factories mentioned in the Schedule of the respective Acts) where it mandatory to register the organization with the respective government agency. The following are some of the examples:

In case of business run by an enterprise consisting of more than 20 employee then it is governed by Employee Provident Fund Act and the person is mandatorily required to register with Employee Provident Fund Organization in the prescribed form for the allotment of establishment code number and provide all the information to respective office as prescribed by the respective Act.
In case of business is consisting of running factories or mines, the person who is running the respective factory is required to see that the factory premises or working conditions are fulfilling the health and safety norms as prescribed by the Factories Act or the Mines Act 1952 respectively.
The person is also required to check whether its organization is coming under Employment State Insurance Scheme and in case it does, then register its organization with the respective government agency as prescribed by Act and apply and get the ESI number. This scheme is generally for factories that are non seasonal and are either run by power or are not run by power employing 10 or more employees providing insurance cover in case of accident, injury, occupation disease, etc in the course of their employment.

G) Tax Registrations The person is there after required to apply to respective government authorities for future taxation purposes. For example in case the business is being operated as a company then it is required to apply in form 49 A for PAN card which is required for filing income tax returns and file Form 49B for TAN that is Tax Deduction Account Number either online through NSDC website or Tax Information Network Centre for deduction of tax at the source so that in future there are no problems in TDS/ other Tax filing. The proprietor of proprietorship can use his personal PAN card number for paying the income tax on the generated income. The directors of the company may apply for Director Identification numbers by applying in form DIN-1 and this is mandatory for those directors who are not citizen of India but are directors of Indian companies.

A person running trading business is required to apply for VAT registration to the local Sales Tax department in prescribed forms along with specified fees and necessary document as prescribed by the respective Act in this regard. Tax Identification Number that is TIN is granted on completion of above said formalities. This is essential as it is mandatory to take Value added Tax that is VAT on sale transaction as prescribed by the respective Act. Failure to comply with the above mentioned attracts penal action.

H) The person is required to thereafter to get service tax number in case the person feels that revenue that will be generated during the financial year will be more than 10 lakhs though person may apply for it voluntary in case business revenue is less than 10 lakhs. Application for this number is only for those businesses that come under category of services whereby the service tax is to be imposed under the respective Act. The person is therefore required to check with a lawyer or any other authority to see and whether any levies are to be imposed in course of the business. The following are some examples:

The person is required to see in case of manufacture of goods to include excise duty on manufacture of goods at the place of manufacture.
The person is required in case of restaurants or sale of commodities like cloth; basic utility items etc take Value Added Tax i.e. VAT from the consumers on the sale of the respective commodities.

I) Accommodation Issues: In case the business is being run through an office, it is essential to check whether the office premises can be used for the respective business and this is fulfilling the Rules and Regulation of Master Plan of the city where the office is situated and in case the office premises is acquired through sale deed then, it is essential to get sale deed registered and pay the stamp duty and all other taxes if any in this regard. The following are some of the examples which are required to be kept in mind regarding office premises:

Factories releasing toxic waste or dealing with extremely dangerous substances cannot be run close to residential complexes according municipal rules of State.
Alcohol selling shops cannot be situated near schools or temples as prescribed under municipal rules of State.
Only professional Chartered Accountant or Lawyers or doctors can work from residential colonies and can operates their offices or clinics respectively from residential premises under State municipal Laws.

J) Bank Accounts The person can open bank accounts in banks in the name of proprietorship, company, firm or LLP for transactions of the respective organizations and acquire check books in this regard. The person is required to maintain books of accounts and work according to the guidelines prescribed for the business and pay taxes and conduct affairs of the business with due regard to law of the country or state where the business is established. The person may chose to adopt any official seal of the respective organization as identifying mark of his respective organizations to be used in documents in futures and there after start the business which he wishes to pursue.

How to start Business in India

noreply@blogger.com (Unique Legal Solutions) — Sat, 26 May 2012 10:39:00 +0000

Very frequently asked question from visitors, especially NRIs and foreigners, who want to start Business in India.

Here is a detailed standard procedure (Followed in the most of the cities, in some cities there may be some more or less processes) will take to start business in India, the paperwork involved and procedures for starting a company in India.

Steps involved in starting business in India

Registration Requirements:

Director identification number (DIN) by applying online from the Ministry of Corporate Affairs portal (National)
Digital signature certificate by applying online from agency authorized by the Ministry of Corporate Affairs (National)
The company name can be reserved by applying online with the Registrar of Companies (ROC) (National)
Stamp the company documents at the State Treasury (State) or authorized bank (Private)
The Certificate of Incorporation from the Registrar of Companies, Ministry of Corporate Affairs (National)
Make a seal (Private)
Get a Permanent Account Number (PAN)
Get a Tax Account Number (TAN) for income taxes
Registration with the Office of Inspector, Shops, and Establishment Act (State/Municipal)
Registration for Value-Added Tax (VAT) at the Commercial Tax Office (State)
Registration for Profession Tax at the Profession Tax Office (State)
Registration with Employees’ Provident Fund Organization (National)
Registration for medical insurance at the regional office of the Employees’ State Insurance Corporation (National)

Detailed Steps and Explanation of procedure to start Business in India

Procedure 1: Director Identification Number (DIN)

The process to obtain the Director Identification Number (DIN) is as follows:
Provisional DIN by filing application Form DIN-1 online. This form is on the Ministry of Corporate Affairs 21st Century (MCA 21) portal. The provisional DIN is immediately issued.
Printed and signed application need to send for approval to the ministry by courier along with identity and address proof:

Identity proof (any of the following):

Permanent Account Number card,
driver’s license,
passport,
Voter card.

Residence proof (any of the following):

Driver’s license,
passport,
voter card
telephone bill,
ration card,
electricity bill,
Bank statement

The concerned authority verifies all the documents and, upon approval, issues a permanent DIN.

Procedure 2: Digital Signature Certificate

The electronic filing system under MCA 21, the applicant must obtain a Class-II Digital Signature Certificate.

The digital signature certificate can be obtained from six private agencies authorized by MCA 21.
Company directors submit the prescribed application form along with proof of identity and address.

Procedure 3: Company Name

Company name approval must be done electronically.

Under e-filing for name approval, the applicant can check the availability of the desired company name on the MCA 21 web site.

The ROC in Mumbai has staff members working full time on name reservations.
A maximum of 6 suggested names may be submitted.
They are then checked by ROC staff for any similarities with all other names in India.

The MCA receives approximately 50-60 applications a day. After being cleared by the junior officer, the name requests are sent to the senior officer for approval.

Once approved, the selected name appears on the website. Applicants need to keep consulting the website to confirm that one of their submitted names was approved.

Procedure 4: Stamp the Company Documents

The request for stamping the incorporation documents should be accompanied by unsigned copies of the Memorandum and Articles of Association, and the payment receipt.

The company must ensure that the copies submitted to the Superintendent of Stamps or to the authorized bank for stamping are unsigned and that no promoter or subscriber has written anything on it by hand.
The Superintendent returns the copies, one of which is duly stamped, signed, and embossed, showing payment of the requisite stamp duty.

Once the memorandum and articles of association have been stamped, they must be signed and dated by the company promoters, including the company name and the description of its activities and purpose, father-"s name, address, occupation, and the number of shares subscribed. This information must be in the applicant’s handwriting and duly witnessed.

Procedure 5: Get the Certificate of Incorporation from the Registrar of Companies, Ministry of Corporate Affairs (National)

The following forms are required to be electronically filed on the website of the Ministry of Company Affairs:

e-form 1
e-form 18
e-form 32
Following must be attached to Form 1

Scanned copies of the consent of the initial directors.
Signed and stamped form of the Memorandum and Articles of Association

The registration fees paid to the Registrar are scaled according to the company’s authorized capital (as stated in its memorandum):

INR 100,000 or less: INR 4,000. If the nominal share capital is over INR 100,000, additional fees based the amount of nominal capital apply to the base registration fee of INR 4,000:
For every INR 10,000 of nominal share capital or part of INR 10,000 after the first INR 1,00,000, up to INR 500,000: INR 300;
For every INR 10,000 of nominal share capital or part of INR 10,000 after the first INR 500,000, up to INR 5,000,000: INR 200;
For every INR 10,000 of nominal share capital or part of INR 10,000 after the first INR 5,000,000, up to INR 1 10,000,000: INR 100;
For every INR 10,000 of nominal share capital or part of INR 10,000 after the first INR 10,000,000: INR 50.

The payment of fees can be made offline as well as online.

Schedule of Registrar filing fees for the articles and for the other forms (l, 18, and 32):

INR 200 for a company with authorized share capital of more than INR 100,000 but less than INR 500,000;
INR 300 for a company with nominal share capital of INR 500,000 or more but less than INR 2,500,000;
INR 500 for a company with nominal share capital of INR 2,500,000 or more.

Procedure 6: Make a seal (Private)

Although making a company seal is not a legal requirement for the company to be incorporated, companies require a seal to issue share certificates and other documents.

Procedure 7: Permanent Account Number (PAN)

Under the Income Tax Act, 1961, each person must quote his or her Permanent Account Number (PAN) for tax payment purposes and the Tax Account Number (TAN) for depositing tax deducted at source.
The Central Board of Direct Taxes (CBDT) has instructed banks not to accept any form for tax payment (challan) without the PAN or TAN, as applicable.

UTI Investor Services Ltd and the National Securities Depository Limited (NSDL) are authorized to set up and manage IT PAN Service Centers in all cities where there is an Income Tax office.

Procedure 8: Tax Account Number (TAN)

The provisions of Section 203A of the Income Tax Act require that all persons who deduct or collect tax at the source must apply for a TAN.
The section also makes it mandatory for the TAN to be quoted in all tax-deducted-at-source (TDS) and tax-collected-at-source (TCS) returns, all TDS/TCS payment challans, and all TDS/TCS certificates issued.
The application for a TAN can be made online through the NSDL website (www.tin-nsdl.com) or can be made offline.
After payment of the fee by credit card, the hard copy of the application must be physically filed with the NSDL.

Procedure 9: Register with the Office of Inspector, Shops, and Establishment Act (State/Municipal)

A statement containing the employer-"s and manager-"s names and the establishment’s name (if any), postal address, and category must be sent to the local shop inspector with the applicable fees.
According to Section 7 of the Bombay Shops and Establishments Act,-(1948), the establishment must be registered as follows: –

Under Section 7(4), the employer must register the establishment in the prescribed manner within 30 days of the opening of the business.
Under Section 7(1), the establishment must submit to the local shop inspector Form A and the prescribed fees for registering the establishment.
Under Section 7(2), after Form A and the prescribed fees are received and the correctness of the statement on the form is satisfactorily audited, the certificate for the registration of the establishment is issued on Form D, according to the provisions of Rule 6 of the Maharashtra Shops and Establishments Rules of 1961.

Since the amendments in the Maharashtra Shops and Establishment (Amendment) Rules, 2003 dated 15th December 2003, the Schedule for fees for registration and renewal of registration (as per Rule 5) is:

0 employees : INR 100
1 to 5 employees : INR 300
6 to 10 employees : INR 600
11 to 20 employees : INR 1000
21 to 50 employees : INR 2000
51 to 100 employees : INR 3500
101 or more employees : INR 4500

Hence in the given case the registration fees would be INR 2000, as there are 50 employees In addition, an annual fee (three times the registration and renewal fees) is charged as trade refuse charges (TRC), under the Mumbai Municipal Corporation Act,-(1888).

Procedure 10: Register for Value-Added Tax (VAT) at the Commercial Tax Office (State)

The authorized representative signing the application must be available at the Sales-Tax Office on the day of application verification.
The Documents will be verified on submission.
In addition to Form 101, other accompanying documentation includes:

Certified true copy of the memorandum and articles of association of the company
Proof of permanent residential address,at least 2 of the following documents:

Copy of passport
Copy of driver’s license
Copy of election photo identity card
Copy of property card
Latest receipt of property tax from the Municipal Corporation
Copy of latest paid electricity bill in the name of the applicant

Proof of place of business (for an owner, in the case of Doing Business): Proof of ownership of premises viz. copy of property card, ownership deed, agreement with the builder or any other relevant documents
One recent passport-sized photograph of the applicant
Copy of Income Tax Assessment Order with PAN or copy of PAN card
Challan on Form No. 210 (original) showing payment of registration fee at INR 5000 (in case of voluntary RC) and INR 500 (in other cases).

Procedure 11: Register for Profession Tax at the Profession Tax Office (State)

According to section 5 of the Profession Tax Act, every employer is liable to taxation and shall obtain a certificate of registration from the prescribed authority. The company is required to apply to the registering authority using Form 1.
Depending on the nature of the business, the application should be supported with such documents as proof of address, details of company registration number under the Indian Companies Act (1956), details of the head office (if the company is a branch of company registered outside the state), company deed, certificates under any other act, and so forth.

Procedure 12: Register with Employees’ Provident Fund Organization (National)

The Employees Provident Funds and Miscellaneous Provisions Act (1952) applies to an establishment, employing 20 or more persons and engaged in any of the 183 industries and classes of business establishments.

The applicant fills in an application and is then allotted a social security number.
The Provident Fund registration focuses on delinquent reporting, underreporting, or non reporting of workforce size.
Provident Fund registration is optional if the workforce size is not more than 20.
The employer is required to provide necessary information to the concerned regional Provident Fund Organization (EPFO) in the prescribed manner for allotment of Establishment Code Number. No separate registration is required for the employees.

All eligible employees are required to become members of the Fund and individual account number is allotted by the employer in the prescribed manner.

Procedure 13: Register for medical insurance at the regional office of the Employees’ State Insurance Corporation (National)

As per the Employees’ State Insurance (General), Form 01 must be submitted by the employer for registration, for the Employer Code Number to be issued.

The Employee’s individual insurance is a separate process that is initiated upon the employer’s registration.
The employer is responsible for submitting the required declaration form and employees are responsible for providing correct information to the employer.
The employee temporary cards (ESI Cards) are issued on the spot by the local offices in many places.

Trademark Registration Process

noreply@blogger.com (Unique Legal Solutions) — Tue, 08 May 2012 10:58:00 +0000

Registration of Trade Marks in India

Registering a trademark an application need be made in the prescribed format for different classes of goods in services and fee payable therefore shall be in respect of each such class of goods or services.
Trademark registration in India used to take approximately about 18 months.
It is important to search at the trade marks registry whether any other similar mark is registered or is pending registration.
It is always recommended to take legal advises from Registered Trademark Attorney.

How to Apply for Registration of a Trade Mark?

Application for the registration for other than a textile mark or for certification of Defensive mark must be made in triplicate in from TM 1.
Application must be confined to goods comprised in one class only of the fourth schedule to the rule.
A representation/ copy of the trade mark should be affixed to the application.
5 additional representations/ copies corresponding with the representation of the mark on the application must also accompany the application.
The additional representation must contain the class and the specification of the goods.
Name of the applicant, the period of the use, if any of the marks and such other particulars as may from time, be required by the registrar of Trade marks.
Signed by the applicant or Attorney/Agent of the applicant.
Where the applicant made for the registration of a series of Trade mark copies of representation to each Trade Mark of the series must accompany the application.
Always take legal advice from Registered Trademark Attorney for appropriate registration and documentations.

Stages in the Registration Process

Applicant or his Attorney shall present his application to the Regional office for
Obtaining a Numbered Copy from Trademark Registry.
Examination procedure and communication are communicated after submitting application in order for registration.
Trade Mark Journal will carry the advertisement.
After three months from the date of advertisement in the journal, if no opposition is filed the application proceeds for registration after paying the prescribed fees and the registration is entered in the Register of Trade Marks.
Within a period of three months from the date of advertisement in the Trade Mark journal any person can give notice to the Registrar in form TM 5.
Period of three month can be extended by 1 month by filing request in TM 44 for extension. The copy of the notice is communicated to the applicant and he is required to file a counter statement in form TM 6.
Applicant had to file counter TM 6 within the stipulated time or the application is deemed to have been abandoned/ rejected.
Counter should be filed with evidence.
On completion of evidence, the registrar sends notice for hearing of arguments.
After completion of arguments the registrar pronounces the order.
The party aggrieved by the decision of the registrar may prefer an appeal to the High Court.
If no appeal is filed, the application proceeds for registration of the mark.

Fundamental Principles of Registration

Descriptive words, surnames and geographical name are not considered.
Registration of a TM should not interfere with the bona fide use by any person of his own name business etc.
Prior user enjoys similar rights that are acquired by a person who has registered a mark under the Act.
Trade mark should not mislead the public as to the origin of the goods.
Trade mark to be registered shall not cause hardship to any one.
The life of a trade mark depends on its continuous use; non usage may lead to its eventual death.
Trade mark, whether registered or unregistered being a property is assignable and transmissible.
Opposition for granting registration of trade mark may be done even by members of the public.
The onus of proving a case for registration of trade mark is on the applicant of the trade mark.

Stages for the Registration

An application for registration should contain:

The name and address of the applicant
His place of business
The goods or services in respect of which registration is sought and the classes in which they fall
Whether the mark is used or proposed to be used and any additional matter is required
Appropriate office of the Trade Mark Registry.

On receipt a serial number is allotted which is used as a reference number for the application and subsequently for the Trade Mark when registered.

Objection to the Application

The following are some of the objections to the application, which may be raised:

The application does not comply with any of the formal requirements and procedure under the rules.
The mark applied for is not a trade mark within the meaning of the statutory definition.
The mark is devoid of distinctive character or not capable of distinguishing or otherwise prohibited.
The mark offends Section 11 etc.

Acceptance and Advertisement

If the applicant or his Attorney satisfactorily meets all the objections raised by the office his application will be advertised in the Trade Mark Journal either as accepted or before acceptance.
As a condition for acceptance of the applicant, the Registrar may require any amendment for modification of the application to impose any condition or limitation as he may think fit.
In such an event the grounds for refusal or conditional acceptance has to be recorded.
The registrar however has powers to withdraw his acceptance subject to certain conditions.

Amendment of application

Section 22 of the Act empowers Registrar to permit the correction of any error in the application or an amendment of the application.

Renewals of Trademarks

Trademark has to be renewed for further 10 years after 10 years of registration, each time till the owner wish to continue it proprietary.
Renewals has to be before validity expires or within one year of expiry with penalties.
Any defaults in renewals beyond one year shall render ‘Lapse of Trademark’.

Flow Chart of Registration Procedure

Trademark Registration Process

Why Trademark Registration is Necessary

noreply@blogger.com (Unique Legal Solutions) — Mon, 07 May 2012 12:33:00 +0000

What’s there in a Trademark?

Trademark is the most valuable asset, for a trademark owner. A Trademark is your product identity; it is communication between Company and consumer. It is important for every marketing and sales personnel to make sure that the Trademark for a product is as special and unique as the product. In this global world, company must ensure that it can use its Trademark worldwide where intends to sell the product as also on the internet (this includes Domain Name).

The Trademark or a Brand name is a:

¨ Word (COLGATE, PEPSI, COCA COLA);

¨ Symbol (PEPSI Logo, McDonald’s M Logo);

¨ Device/ Pictures (AMUL GIRL, PILLSBURY DOUGHBOY, A CAT IN PRAKASH TRANSPORTS, ASIAN PAINTS’ GATTU);

¨ Name (ALLEN SOLLY, RAYMOND VEIL, MOTILAL OSWAL, VIMAL);

¨ Surname (TATA, BIRLA, BAJAJ, MCDONALD’S, BATA);

¨ Signature (LOUIS PHILLIP, CADBURY);

¨ Letter (BMW, IBM, BB Soap, DHL, ICICI);

¨ Numeral (555 for Cigarettes, 777 and 501 for washing soap);

Or combination of any of these which identifies.

Under the Trademarks Act, 1999 the mark also includes:

¨ Color Scheme;

¨ Packaging;

¨ Shape of goods.

Any Trademark associated with a Service is known as a Service Mark e.g. ORANGE for Mobile phone service, BLUE DART for courier service.

Types of Trademarks:

1) Coined or Invented Trademarks:

These Trademarks are meaningless trademarks which enjoys highest amount of legal protection.

Example: - KODAK, RANBAXY, DABUR.

These marks also include common words but arbitrary in connection with the products or services.

Example: -TORTOISE for Mosquito coil, CAMEL for Cigarettes, APPLE for Computers, OMEGA for watch.

2) Suggestive or Semi-descriptive Trademarks:

Trademarks preferred by marketing people for creating association with the product without being descriptive, easily remembered and easy to promote.

Suggestive marks also includes plain dictionary words

Example: -SWATCH, TITAN, RELIANCE, INFO GATE, CYBERSURFER, HEAD & SHOULDER.

The legal protection for these types of marks is lower. Many times, degree of protection varies according to the Trademark, which could be considered as Semi descriptive or descriptive. There is a thin difference between semi descriptive or descriptive Trademarks and can be protected by acquiring secondary meaning with long, extensive and uninterrupted use.

3) Descriptive Trademarks:

Marketing people are keen on finding the name, which communicates product to consumers. But protection is granted by the law to such trademarks is low until is being used extensively and continuously for many years with huge sale and advertising to popularize the same.

Examples:- RAPID RICE, SWISS CHOCOLATE, LITE FOR BEER, EASY CASH, ANY TIME MONEY, HAIR & CARE, FAIR & LOVELY.

4) House Marks:

Trade Name or House mark help to identifies a Company or a business and services as the name of the Company or a business. Many times, a Group of Companies use its house mark on its products or services along with or without any other Trademark.

Example: - Godrej’s Jumpin and Godrej Storewell, Tata Tea, Tata Salt, tata Press, Nestle’s Nestea, Nestle’s Milo, Bajaj Scooter, Bajaj Majestic for Toaster, Birla White Cement, Britannia Goodday, Britannia Cream Treat, Amul Cheese, Dabur Honey.

5) Figurative Trademarks:

Any or Each of the above mark may be combined with figurative elements or marks and possible to use a figurative mark in isolation or alone. Such figurative elements are added or used exclusively for different markets where there is communication problem i.e. different languages are used in different markets.

The Figurative marks can also be like word marks of following types:

¨ Meaningless, fancy or pure fantasy marks

¨ Arbitrary or marks without any relevance with the product

o Example:- Half bitten apple for APPLE Computers, ARROW for Shirts

¨ Suggestive (Cow for MILKMAID), TWO ELEPHANTS pulling a chain in opposite side joined with FEVICOL)

¨ Descriptive (device or picture of Wheat for Bread, device of hand showing No. 1 for McDowell’s No. 1 Whisky, Running Deer through letter “S” for Savani Transports)

For its distinctiveness full legal protection is granted to such figurative marks.

Generic words as Trademarks

Generic, chemical or ingredient’s original name, however some of the Trademarks used generically and hence became generic and not protected as a Trademark.

Example: - ASPIRIN, THERMOS, KEROSENE ESCALATOR, GRIPE WATER, REFRIGERATOR

Today, many companies are facing dilution of their Trademarks due to its general use such as XEROX for photocopies, VELCRO for fasteners etc.

What is a good Trademark?

The best trademarks are:

¨Inventive;

¨Non – descriptive words; and

¨Distinctive devices.

A Trademark registers only if it is distinctive, it must different from other goods or services of a trade. Distinctiveness can be in the mark itself as in the case of invented words, non-descriptive words, and devices and can also be acquired by user in case of suggestive and descriptive words, surnames etc. depending upon extent of use, nature of the goods etc.

There are many marks which are purely descriptive and laudatory expressions or very common surnames which cannot be registered even with long use.

Example: - ALL WOOL, JANATA, PERFECTION, SIMLA, BOMBAY, NATIONAL etc.

It is therefore advisable to avoid choosing a word which are directly descriptive of goods or having direct reference to characters or quality of goods, common surnames and geographical names.

Example: - MILK MORE, MILKY WAY, SCOTCH WHISKY (Whisky manufactured at Scotland).

Following Trademarks cannot be registered under the Trademarks Law:

· A mark, the use of which is likely to deceive or cause confusion, or is contrary to any law for the time being in force.

· A mark in respect of any goods or description of goods which is identical with or deceptively similar to an already registered Trademark.

· A mark which comprises or contains scandalous or obscene matter, or any matter likely to hurt the religious susceptibilities of any class or section of the citizens of India.

· A mark which is otherwise disentitled to protection in a court.

· A word which is commonly used and accepted name of any single chemical element or single chemical compound in respect of any chemical substance (generic marks).

· Marks which suggest a connection with any living or recently deceased person may not be registered, except with the consent of that person or of his legal representatives (e.g. founder’s photo for KFC “KENTUCKY FRIED CHICKEN”, founder’s photo on HIMTAJ OIL).

Some do’s and don’ts of a good Trademark:

DO’S

¨ Choose a Trademark which is appealing to eye and ear, short, easy to pronounce and remember as well as easy to spell and write.

¨ Choose a Trademark which satisfies the requirements of registration.

¨ Conduct a complete availability search for a Trademark.

o search at the Trademarks office in India

o Search in the entire available database like industry magazines /periodicals, Yellow Pages, market resources etc.

o Legal clearance is must to avoid any future disputes.

¨ Distinguish Trademark from words in printed matters or materials like Agreements, Invoice copies, Instruction materials etc, the Trademark should be written either in block letters or within quotation marks or always use appropriate symbols like ® or TM.

¨ Use a Trademark with correct style, spelling and in its exact format.

¨ Advertise Trademarks rather than Products or Services for creating a brand loyalty among the consumers. (e.g. COKE for COCA COLA, BAND – AID for first aid dressing from Johnson & Johnson)

¨ Register and maintain registration of the Trademark for many advantages like protection against infringement of trademark, exclusive use of the mark and prevent others from using, applying the said Trademark without proper authority.

¨ Consider registering a Trademark in all the countries of potential interest.

¨ Keep a watch on unauthorized use of identical and/or similar Trademarks and take appropriate action at the earliest to prevent such use.

¨ Acknowledge with a footnote, if you are using a Trademark of another party.

¨ Make and create awareness among the internal staff for the proper selection and use of a Trademark.

¨ Appoint a person to supervise and co-ordinate the adoption and use of the Trademarkto review advertising, packaging and other documentation for compliance with the basic rules of a Trademark and he should conduct a periodical audit to monitor compliance on all the printed matters including packaging.

¨ Use symbol ® on the shoulder of a mark in case of Registered Trademark and TM in case of unregistered Trademarks.

DON’TS

¨ Choose a Trademark which is descriptive or having direct reference to the quality or characteristics of the Product.

¨ Use plural words in a Trademark.

¨ Modify a Trademark from its possessive form.

¨ Adopt any generic word as a Trademark, Like ASPIRIN

¨ Use a Trademark as a noun but use an adjective modifying a noun.

¨ Use a Trademark as a verb. Trademarks are for Products or Services and never actions. E.g. it is not XEROXING but Photocopying.

Trade Dress

Trade Dress is the overall appearance of the goods or their packaging or of advertising or the means for delivering goods or services. Trade Dress like a Trademark, is protectable if it is distinctive, inventive, arbitrary or suggestive features or combination of any its features will make the Trade Dress distinctive.

Trade Dress can be register as a Trademark, as one or more distinctive features will make the Trade Dress registrable as a Trademark butthe other form of Intellectual Property will be more appropriate such as Copyright or Design registration. Trade Dress is fully protectable under the law provided if it is original and distinctive.

The importance of the visual impact of a Trademark is very important. When a customer is looking for the product concentrates on:-

¨ Color scheme of the respective label and package,

¨ Graphical presentation

¨ Product name.

Companies therefore for the House Mark as well as for important Trademarks, uses special fonts, Colors and visual impact which are used as uniformity and in accordance with the guidelines by the management.

Are you Dealing with Bounced or Dishonoured Cheque?

noreply@blogger.com (Unique Legal Solutions) — Fri, 04 May 2012 11:58:00 +0000

What is a Cheque?

As per Section 6 of the Negotiable Instruments Act, 1881 provides that “a Cheque is a bill of exchange drawn on a specified banker and not expressed to be payable otherwise than on demand and it includes the electronic image of a truncated Cheque and a Cheque in the electronic form.”

Reasons for Dishonouring a Cheque by a Bank

The principal reasons for dishonoring the cheque are as follows: -

A cheque is not in proper conditions specified in the Negotiable Instrument Act.
A drawer signature's on cheque differs from specimen signatures recorded with the bank.
A cheque is stale (in circulation for more than 6 months) or postdated.
Amount expressed in words and figures differ.
Cheque mutilated (cut torn part of cheque missing)
Material alternations (change in date, crossing, amount, name of payee etc. on cheque) need confirmation by the drawer.
Over writing or order cheque not properly authorizes.
Do not tally with directions contained in the crossing.

When a Banker is Justified in Refusing Payment

A banker is justified in refusing payment of a customer's cheque on the happening of any one of the following events.

Notice of the customer to refuse payment of the cheque.
Notice of the customer's death.
Notice of the customer's insanity
Notice of the customer's bankruptcy.
In case of a company, notice of its winding up.
Notice of a court order.
In case of trust accounts receipt of information that the customer contemplates a breach of trust.

Dishonour of Cheque is a Serious Offence

Dishonor of cheques is a criminal offence under section 138 to 142 of the Negotiable Instrument Act, 1881 by an amendment.

In order to make a person liable for Charges/ prosecution, the following criteria/ conditions must met –
The cheque is presented within its validity from its date.
A demand notice is sent by the Payee (person/ company/ entity on name the check is issued) to the drawer (person/ company/ entity issued the check) within 30 days from the Payee's receiving the dishonor instruction/ report from Bank;
The drawer (person/ company/ entity issued the check) of the cheque not been able to pay the amount mentioned on the check to the person check is issued within 15 days of receipt of the notice;
Complaint is to be made only by the payee or holder in due course;
Cheque which is dishonored must be issued for the discharge/payment of a debt or any other liability, which is legally enforceable. Thus, an action cannot be initiated for the dishonor of a cheque that is given as a gift.
The offence is committed only when the cheque is dishonored and not when it is issued, Example: - At the time of its issuance of the cheque, there is no balance in his account, the drawer commits no offence if, when the payee present the cheque in the bank, he arranges the payment with the bank and the check is honored/ passed/ paid by the bank.

Procedure for Action

1. Notice should be sent within period of 30 days from the date of the bounce of the check.

2. For Limited Companies and Partnership concerns, notice should be sent to the Company, the Partners concern and to all the Directors / Partners also.

3. For proprietary firms, notice should be addressed to the Proprietor only.

4. Notice should be sent preferably by
i. Speed Post with Acknowledgement Due (SPAD)
ii. Registered Post with Acknowledgement Due (RPAD)
iii. Postal receipt to be kept as the proof of dispatch.
iv. AD card to be kept along with the notice and Postal receipt.
v. If AD card does not come back or received without signature or date is not clearly mentioned then delivery confirmation receipt have to receive form the post office.

5. During the 15 days’ time period to make payment from the party it is advisable to follow up with it to put pressure and if the party would not pay the dues then preparation must begin for filing of the complaint after expiry of 15 days period within 45 days from the date of the receipt of the notice by the Party.

6. A cheque cannot be presented after a notice has already been sent to the party.

7. After filing the complaint in the Court, a verification statement is sworn before the Magistrate and original documents are produced in the Court. Then the Court issues Summons against the accused persons named in the complaint. If in case the accused persons do not attend the Court after service of summons, the Court would issue first Bail able Warrant and then Non-bail able Warrant.

8. Where the accused has been declared absconder and Proclamation has been issued, the Magistrate on being satisfied can order the attachment of the property of the accused, the attached property will vest in the hands of the Government; Complainant can only participate in bidding for the purchase of the said property if Government decides to sell it.

Banks Dealing with Dishonour of Cheques of Value Less than “1 crore”

(i) Returning time for dishonoured cheques

The dishonored Cheques are required to be returned / dispatched to the customer promptly without delay, in any case within 24 hours of dishonor.

(ii) Procedure for return/dispatch of dishonoured cheques

a) The payee branch should return dishonoured cheques presented through clearing houses strictly as per the return discipline prescribed for respective clearing house in terms of Uniform Regulations and Rules for Bankers' Clearing Houses.

b) The collecting branch on receipt of such dishonoured cheques should dispatch it immediately to the payees / holders within 24 hours of receipt of the instruments.

c) If cheques presented directly to the payee branch across the counter branch should return such dishonoured cheques to the payees/ holders same day/or next day, in case of dishonour due to insufficiency of fund.

d) Cheques dishonoured should be returned along with a memo ofreason for dishonor by bank.

(iii) Frequent dishonor for the same account

a) If the dishonour of a cheque of value of less than rupees one crore drawn on a particular account of the drawer on 4 occasions during the financial year for insufficient funds in the account, no fresh cheque book would be issued and branch may close the account after issuing 30 days’.

b) The branch may consider closing current account with the prior and proper notice to the customer. However, in respect of advances accounts such as cash credit account, overdraft account, the need for continuance or otherwise of these credit facilities and the cheque facility relating to these accounts should be reviewed by appropriate authority.

c) If an account is having cheque book facility and ECS mandate is also registered, then the incidents of dishonour will be taken into account both for dishonour of cheque and failed ECS for computing the number of dishonour of cheques/failed ECSs.

Branch may consider for closing the account after serving 30 days’ notice to the customer in the event of subsequent dishonour of cheque/ ECS mandate in the account.