3.5.1. Membership Certificate of RWA is not yet issued to the Applicant.
4. Particulars of the loss, damage, injury etc and compensation amount claimed should be written as follows:-
4.1. Compensation for late construction of flat.
4.2. Refund of increase in value collected illegally.
4.3. Compensation for extra Property tax to be paid by the Applicant.
4.4. Refund of Cancellation and Restoration charges.
4.5. Refund of Civil Amenities charges.
4.6. Refund of double collected Membership charges of RWA.
4.7. Reimbursement of Expenses incurred by the Applicant, related to his repeated visits to the Respondent, other expenses etc.
4.8. Reimbursement of House Loan interest paid to Bank.
5. Particulars of proceedings if any, under Consumer Protection Act or any other law, before any other Court or Forum; from the same cause of Action:- NIL.
6. PRAYERS:-
6.1. That an order may kindly be issued to the respondent to pay Rs….. (Rupees….) being the actual loss suffered by the Applicant.
6.2. Interest to above amount, till the actual date of payment.
6.3. Cost of this Compensation application.
6.4. Any other relief, which the Hon’ble MRTP Commission may deem fit.
7. The Application should be Verified.
8. Affidavit should be attached, which should be attested by Notary/ Oath Commissioner.
9. List of annexures, and their page numbers.
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Specimen Legal Notice under Consumer Protection Act:-
Registered Post Ack Due/ Speed Post with Proof of Delivery/ Courier/ E-mail/ Fax.
(Note: Under the Consumer Protection Act, there is Limitation. Thus it is advisable to send Legal Notices through Government Post Office: Registered Post Ack Due/ Speed Post with Proof of Delivery, because, there is be proper proof of date of posting and delivery).
Place: New Delhi.
Dated:- 01 November 2009.
From,
(Name of the Consumer), aged ... yrs, Son of/ Wife of:-
Resident of:- (complete address).
To,
(Name of the Shop from which purchased),
Through Shri/ Smt. (if the concerned person can be identified),
Designation:- Owner/ Proprietor/ Manager/ Managing Director,
(Complete Address).
Reference:- Your Bill number/ Invoice number... dated ....
Subject: The Defective Product being sold by you. And/ Or: Defective Services rendered by you.
Sir,
1. I am a Consumer of your Shop/ Office/ Hospital, after payment of due consideration/ I am the legal heir of the consumer/ I am the Representative of the consumer.
2. The product had been purchased vide Bill/ Invoice number... dated... and the payment had been done through Cash/ Cheque/ Demand Draft/ Money Order details:....
3. The said product/ service obtained had been found to be Defective for the following reasons:-
4. Immediately after finding the said defect, I had lodged the complaint with your shop/ manufacturer's consumer care, vide computer generated complaint number:-... OR I had personally visited the shop and spoke to Shri...., who had registered my complaint in the Servicing Register to repair within Warranty, vide details:-.....
5. In an efforts to repair the product, I had been made to leave the product at your Service Centre/ your service engineer had visited my premises on the following dates:- .... OR despite repeated reminders, your shop/ company had made no efforts to repair the product. OR initially your engineer had came to the premises of myself, to repair the product, which started to work and obtained my signature as satisfied, however, after a few days the problems developed again and my further complaints were ignored.
6. You are requested to note that, after a lapse of ... days/ weeks/ months, the product which had been purchased by me is not working properly, because of deficiency in services rendered by you. Despite repeated complaints, no efforts/ no sincere efforts had been made to rectify the deficiency in services rendered by you, which had resulted in issue of the present Legal Notice.
7. You are requested to note that, I had faced the following financial losses because of the defective product/ services:-...
8. In view of the above, you are hereby requested to:- Repair the goods in a proper manner so that it can be used without any hindrance in future. OR Replace the goods with new goods. OR Return the consideration/ charges/ price paid by me, along with interest at the rate of 6% pa. AND also pay to me the compensation, at the rate of Rs.... per day/ week/ month, amounting to total ....
9. At this stage, it is pertinent to mention that, your Bill/ Warranty Card contains a clause that, your shop/ company will not be responsible for any consequential loss suffered by the consumer. The said clause is not applicable to the deficiency in service rendered to me, being, manufacturing defects is applicable only for the first time repair. Your product had always been under-repair, and ... times I had to lodge the complaint, and even today it is not working properly. Due to shortage of space, I could not purchase another piece of any other manufacturer, to get my work done. Thus the loss suffered in my house as wastage of time etc, from the 2nd time defect, to be covered under the Law of Tort and clause in your Bill/ Warranty card about consequential loss is not excluded in my case. The provisions of Consumer Protection Act uses the words “contract” and “or otherwise”. Thus your liability to pay compensation for my day-to-day loss is not excluded.
10. Unless you will give the reliefs prayed above, I shall be constrained to file Complaint at the Consumer Court/ City Civil Court which have jurisdiction in this Dispute and in that case you alone will be liable to pay Costs and Compensation to me the consumer/ Complainant. Thus it is requested, to obtain an out-of-court settlement.
Thanking you.
Yours faithfully,
Signature:-
Complete name:-
Enclosures:- (the Author submits that, in the past, no enclosures used to be attached with the Pre-suit Notices. However, it will be always safe to give attested photo-copy of all the documents as enclosures, being, the Civil Procedure Code is very clear that, what are the things which had not been pleaded and annexed at the earliest stage, cannot be used in future. The earliest stage is “pre-suit notice stage” and not Suit/ complaint stage. If the documents are going to be enclosed, in the body of the Notice itself that should be mentioned, and their details should be written once more in this 'Enclosures' place).
Advocate's Notices:- The Notice can be send by the aggrieved person himself or through his Advocate. The Author submits that, if the Notice is send by an Advocate, the said Notice should contain following words:- “Certified that the contents of the Notice had been read aloud to the Client and explained in his mother-tongue, and Client had admitted them to be true and correct. Sd/- Client”. In short it can be written “RO and AC. Sd/- Client”. In a case, the Army Head Quarters had refused to accept the Advocate's notice, saying, it do not have sign of the Client or his Authorization is not enclosed. Even that is not correct procedure. Authority is only to send the Notice and not about the facts which are alleged in the Notice. In a Court, while recording evidence, the person who issued Notice have to identify the signature, and unless the sign of the client is obtained, the Advocate who had issued Notice will have to be summoned to prove the Pre-Suit Notice. Thus it will be always advisable to obtain sign of the client, prior to sending Advocate Notices. This point is explained in another chapter of this book, titled “Exihibits and Mark”.
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CHAPTER 13 : CYBER CRIMES
Details required for making a Cyber Crime Complaint:-
1. Cyber Crime:- Prior to giving complaint, the aggrieved party should be aware that, what he/she is aggrieved is Cyber Crime. For that a Definition is necessary. The meaning given in a dictionary is as follows: cyber crimes as crimes committed with the use of computers or relating to computers, especially through the Internet. According to a judgment, the Mobile Phones are also Computers. In the context of common understanding, the cyber crime is understood as an unlawful act wherein a computer is either a tool or a target or both, through which other human beings or artificial persons or nations are harmed or harassed.
2. In the Information Technology Act 2000, there are provisions to register a complaint by the victims of a cyber crime. To be able to do that, victim need to provide following information to the Police/ in the complaint before the Competent Judicial Magistrate:-
Log entries of the Server, which had been used by the Victim.
3. In the complaint about Web Site had been hacked, the print outs (= hard copy) of the pages after being hacked and their soft copies should be provided to the Police. In this connection, a separate file should be made with the following details: the Web page address of each pages for which the Soft copy is provided. It is necessary because, even-though the contents of web page will remain same, but address will be changed from “www...” to “C:\...”. When hard copy or print out is taken, if directly taken from Internet, this confusion can be cured. However, all such web-page details/ addresses should be provided under the sign of the complainant/ victim, in a separate page.
4. When the complaint is about corruption of data from the victim's computer, or any other network equipment, soft copy(ies) of original data and soft copy(ies) of corrupted data; along with their hard copies to be annexed with the complaint/ information given to the Police. The separate list of web-page address given above may be followed for this item also.
5. List of suspects is very important in any criminal information/ complaint. Also the Witnesses list to be provided by the complainant at the first opportunity itself. Such details can be categorized as follows: Individuals who had access to the computer/ network equipment, in which the incidence caused grievance had happened.
6. Institutions as Victim/ Complainant of Cyber Crimes: Following questions to be answered unambiguously by the Victim/ complainant:-
7. The Data/ Web-page which had been corrupted or hacked ? (What is cause of action ?).
Suspect who might have committed the crime? (Who ?).
Time when the crime had been committed ? (When ?).
Motive to commit the crime (Why ?).
Place where the offence can be found/ traced ? Number of computers affected. (Where ?).
8. Individual as Victim/ Complainant of Cyber Crimes: Following questions to be answered unambiguously by the Victim/ complainant:-
From complainant's E-mail address, the E-mail's about which cause of action arise should not be deleted. The Headers of offending e-mails should be preserved.
The Complainant should enclose the soft copies and hard copies of the offending e-mail. While taking print outs, if directly taken from the internet and not from saved copy in the computer, the internet address of the objectionable e-mail will be automatically recorded. However, as explained supra, it is safe to file a separate document, where offending e-mail's description and their internet address to be filed.
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Cyber Crime Cells of Police Forces:-
Karnataka Police:- http://www.cyberpolicebangalore.nic.in/
Maharashtra Police:- http://www.mumbaicyberlab.org/
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DEFINITION OF A FEW COMPLAINTS IN CYBER LAW
To help in pleadings, a few terms are defined, as follows:
1. CYBER HACKING: It is using complainant’s computer or network by others, without his permission.
2. CYBER FRAUD: If the complainant is subjected to Fraud, in relation to his use of Computer or Internet is cyber fraud. The examples are: fraud committed by Computer Shop while selling Computer is not Cyber Fraud, it is an ordinary crime. However, illegal use or access of complainant’s computer by the known/ unknown accused, resulting in input, alteration, deletion or suppression of database, software etc is Cyber fraud.
3. CYBER CRACKING:- When the Cyber Hackers use the skill to cause trouble to the complainant, by committing theft of Credit Card, ATM Card etc details, or insert Virus into the computer of the complainant, that is Cracking.
4. UNAUTHRISED ACCESS:- Without the permission of the Complainant, if his computer is used or accessed, this offence is committed. It is equal to Criminal Tresspass of house, under Section 441 of the IPC.
Common methods, only a few, of Cyber Crimes committed:-
i) Complainant got an SMS that, he is elected/ selected for a Lottery or Chitty etc and he should contact certain phone number, where he will be asked to deposit certain Processing Charges. This continue for ever. He will not get any money.
ii) Complainant got an E-mail, asking details by his bank, to update the Bank’s Registers. It includes ATM Card Number, Internet Banking Code etc. If these details are known to others, through their own Internet Connections they can Transfer money from Complainant’s account. It is also called “Phishing”.
iii) Getting vulgar and threatening SMS Messages.
iv) Repeated missed calls and blank calls. Even the Police Control Rooms phone 100, in India face this threat.
v) Creating Morphed Pornographic photos of the Complainant or his family members. In this, the head of a photo will be pasted with nude or sexual activities photo of another person, to give an impression that it is the complainant doing it.
vi) Cyber terrorism: committing theft of Identity Card and other documents of the complainant, or making forged such documents, to commit crimes.
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CASE LAW OF IMPORTANT NATURE
1. MAKING FREE PHONE CALLS IS A CRIME. Information Technologies Act, 2000, Sections 65 and 66 – Computer system, Tampering and Hacking – Altering of any Source Code – Using Computer to make wrongful profit to himself, by creating loss to Telephone Department – When prima facie case found to arrest the accused and deny bail to the masterminded accused person – The Morale of the below mentioned arrest, for Teenaged Children is, never take help of any Web-sites (there are many such web-sites at USA), or computer programmes to make free phone calls – The Telephone lines at India are only utilized/ engaged to carry such Calls – When any Telephone call is made in India, the Government is earning money as Charges and Taxes – When certain Web-sites help to show consumption charges NIL, eventhough no Bill is generated to the said Phone Call, the Telephone lines are getting engaged, and the Telephone company will give Police Complaint, which will conduct Secret enquiries, raid the premises and arrest the person who misuses the Computer and Internet to cheat the telephone department – The Computers, Modems, related phone instruments etc will be seized by the Police – These all will result in loss of liberty (getting arrested and remaining in jail), loss of instruments (computer, modem etc), loss of money (the expenses to get Bail to the individual, and release of computer, modem etc on Superdari), and loss of future (unless criminal case is resulting in Acquittal, the future is blocked and cannot get a good job, cannot go to abroad foreign countries etc) – Thus using Internet or Computer Programmes, do not do anything to cause illegal gain to you and loss to Government – Now read the incident of arrest:- Held:- the police case is that on the information that certain persons were involved in making ISD/STD telephone calls or facilitating such calls to be made by others on certain telephone number of Mahanagar Exchange in such a way and by adopting such devices that consumption charges were nil and in this way were causing colossal financial loss to Bharat Door Sanchar Nigam and wrongful gain to themselves and other unvisible callers, the Special Task Force, Lucknow claims to have undertaken secret enquiry and prepared an observation report and after being satisfied that telephones were misused in the aforesaid manner for making illegal money, therefore, it decided to nab the culprits red-handed. (Para 2). Gopal @ Krishna Gopal. Versus State of U.P. 2002 (1) JIC 702 (All).
2. SPECIAL PROVISIONS OF POWER ONLY TO DySP IS NOT FOLLOWED ALWAYS - Information Technologies Act, 2000, Section 80 – Safeguards to General Public, when violation is not defeating prosecution – Only Police Officer of the Rank of Dy SP (= ACP) have the power to enter the place of Accused person, arrest him without Warrant and seize the Computer, modem etc – However, where the said procedures had been done only by a Sub-Inspector of Police and not by Competent Police Officer, the said illegality is not resulting in any weakenss to the Prosecution at Bail’s stage – Without passing any opinion on the illegal Arrest, the High Court had denied Bail Mastermind Criminal Accused, and given Bail to only other accused persons. (Paras 4 and 5). Gopal @ Krishna Gopal. Versus State of U.P. 2002 (1) JIC 702 (All).
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WHETHER SMS IS A LEGAL DOCUMENT? Yes.
“The Information Technology Act, 2000, makes any record sent in electronic form admissible evidence in a Court of law. Electronic record is defined under Section 2(t) as “data, record or data generated, image or sound stored, received or sent in an electronic form or microfilm or computer-generated micro fiche”. Electronic form is defined under Section 2(r) as “any information generated, sent, received or stored in media, magnetic, optical, computer memory, microfilm, computer generated microfiche or similar device”. An SMS sent from a mobile is accepted as “electronic record” transmitted in “electronic form”. Whether it is authentic or not will be subject to the usual tests under the general rules of evidence”. India Today 14-10-2002, page 59 Box”.
How the SMS Messages can be made Acceptable evidence according to evidence act, an efforts is made by the Author to explain this point:- (1) Transcript to be prepared. Like, how tape recorded conversation is transcribed, in the same manner, the SMS or LMS also to be transcribed. (ii) Sufficient number of copies are to be made of the Transcription, and each pages should be signed by the person who had prepared the Transcription, clearly writing his name, date and time. (iii) Another person should check the Transcription with the Mobile Phone, and put his signature, name, date and time for the checking done. (iv) More than one person also can check the transcription and mobile phone.
(v) The said document, thus created to be send by Registered Post or Speed Post, ack due to the person who is suspected to have committed the crime of sending that SMS or LMS. (vi) It is safer to contact his Post Man and give some “gift” to ensure that, complete signature and name of the person who received the letter will be obtained and Ack Card will be returned without any lapse to the sender. (vii) Along with the Regd Receipt and Ack Card’s photocopy, give a Transcription of the SMS/ LMS to the Police Station and obtain their Acknowledgement. Now the Police Investigating Officer also can go to the addressee and find out the truth. (viii) Issue a Transcription to the Mobile Phone Companies for their Certification of Facts, with proper acknowledgement. Commercially they can tell that, such details will not be revealed. However, Penal Law is stronger than Commercial Law.
(ix) Mobile Phone and SIM Card can be Copied, and if such copy will contain all Missed Calls, Received Calls etc details; the Original Phone and SIM Card can be filed in the Court.
(x) Prepare proper Index, and safe packing materials for Mobile Phone and SIM Card, to file in the Court. File all these Receipts in original with a Transcription, in the Magistrate Court, either in the pending FIR or in the Criminal Complaint.
(xi) It is essential to read the “Exihibit and Mark” chapter of this Book. Some Judges will permit “Exihibiting” the Transcription when the person who wrote it and checked it will identify it and his own signature. Some others will only “Mark” it. However, Postal Receipts, Police Station Receipts, Mobile Companies receipts etc will be Exihibited at one instance.
(xii) The Transcription to be shown to the Accused person, Policeman, Mobile Company officials etc, along with Postal receipts etc. In that case, the “Mark” will become “Exihibit” because of those persons evidence. Depending upon their Replies, the Court may or may not believe the factum of sending those SMS Messages.
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MOBILE PHONE IS A COMPUTER, VIDE INFORMATION TECHNOLOGY ACT.
IN THE ANDHRA PRADESH HIGH COURT
2005 Legal Eagle(Cri) 2061 : 2005 Cr LJ 4314
Syed Asifuddin and Ors. Versus State of Andhra Pradesh and Anr.
Para 14. Computer source code, may just be defined as a serritten in some huma programming languaeral text files buty be printed in a ba tape without a fi source code is a pftware. The same isject code. But a pry interpreter is noject code but on soconverted again. [Diane Rowland and Elizabeth Macdonald : Information Technology Law; Canandish Publishing Limited; (1997). p. 17] Thus, source code is always closely guarded by the computer companies, which develop different function specific computer programmes capable of handling various types of functions depending on the need. The law as we presently see is developing in the direction of recognizing a copyright in the source code developed by a programmer. If source code is copied, it would certainly violate copyright of developer. With this brief background in relation to computer source code, we may now consider in brief the technological aspects of a cell phone and how it works. This is necessary to understand the controversy involved in this case.
Para 15. Alexander Graham Bell invented telephone in 1876. This enabled two persons at two d