HUSBAND’S ILLICIT RELATIONSHIP IS NOT ALWAYS CRUELTY

The Hon’ble Supreme Court Acquited Appellants Due to Lack of Evidence to Prove Mental Cruelty U/S 498a

The prosecution case was that the husband, Rakesh had an extra marital affair with Jasuben, a divorcee. This illicit relationship shattered his marital relation with his deceased wife Biniben. The said Biniben committed suicide on 4/3/04 by consuming poison. The death of the deceased was known to her parents only on 17/3/04.  After the knowledge of her suicide her mother filed complaint at Jamnagar police station and pursuant to the statement of 21 witnesses the police filed charge sheet u/s 498 A, 306, 201 and 114 of IPC against father-in -law of the deceased as accused 1, husband as Accused 2, mother-in-law as accused 3 and Jasuben as Accused 4. The elder brother and wife of accused 2 were exonerated by the trial court due to lack of evidence against them. Other accused were convicted by the trial court and they preferred appeal in the High court The Honorable high court also upheld the conviction of the trial court. Against the finding of high court the appellants moved appeal before the Apex court.

The Bench presided over by Justice Sudhanshu Jyoti Mukhophadya and Justice Deepak Misra had scrutinized minute aspects of the sections the appellants have been charged, and with reference of similar citations reached the conclusion to acquit the appellants.

The SC observed that the prosecution had produced and based on the deposition of PW 21 the sister of the deceased it was quite clear the deceased had obtained a divorce with 2nd accused and stayed on the terrace of the house. She had also intimated that after the festival of Holi she will return to her parental house.

The apex court further analyzed whether the charges framed u/s of IPC is applicable to the appellants in the instant case. The alleged charges of mental cruelty inflicted on the deceased by her husband owing to his extramarital affair wouldn’t attract Section 498 A as the cruelty defined in the section require proper evidence of such imposition of harassment on the deceased. The court observed that the in laws of the deceased were alleged to take her daily earnings but that was also not proved.  Any torture stated in Section 498 A and demand of dowry is not committed by accused and hence alleged cruelty by them in laws is also not proved and does not attract the explanation cruelty or harassment in section 498 A.

The endurance of mental cruelty depends on the mental status of each individual as per the court and the Bench affirmed that a fact of husband having an illicit relation imposed mental cruelty on the deceased is not proved by any strong undeniable evidence or fact. Another point of consideration by the court was the element of abetment or instigation u/s 306. Court observed that the suicide note of the deceased states that she was possessive about her husband and due to emotional stress she relieved her husband through the act of suicide that does not come under the ambit of abetment stated in section 306.

On the conclusion Apex Court has found that the accused appellants are not guilty u/s 306 and 498A of IPC hence the conviction is not sustainable u/s 201. The appellants were acquitted on the light of the above findings.

[Ghusabhai Raisangbhai Chorasiya & Others Vs State of Gujarat – 2015 AIR SCW 3950]

Prepared by: S. Hemanth

Advocate at Hemanth & Associates

DIVORCED WIFE CANNOT FILE PETITION FOR MAINTENANCE

From section 125 of the Cr.P.C it is seen that, to file a petition, the status of wife and husband should exist between the petitioner and the respondent. In addition she should show that she does not have any source of income and she is unable to maintain herself.

High Court of Karnataka in Dr.Shrishail Ramakrishna Bijapure Vs Smt. Vidya  

Prepared by: S. Hemanth

Advocate at Hemanth & Associates

DELAY IN LODGING CHEQUE BOUNCE CASE SHOULD BE CONSIDERED FIRST

Application to condone the delay in lodging complaint under negotiable instrument act must be considered before issuing summons to accused

In this case, High Court of Karnataka held that the Magistrate had committed a serious error in not considering the application under section 142 (b) of the Negotiable Instruments Act, 1881 at the initial stage. The case was remitted back to the Magistrate to consider the said application first and then pass appropriate orders, if necessary.

High Court of Karnataka in G Ravi Vs Shivanand Revappa Rebbanavar

Prepared by: S. Hemanth

Advocate at Hemanth & Associates 

WIFE MAINTENANCE FACTORS TO BE CONSIDERED

The Court has to consider the status of the parties, their respective needs, capacity of the husband to pay having regard to his reasonable expenses for his own maintenance and to all those he is obliged under law and also statutory but involuntary payment or deductions from his income. The amount of maintenance fixed for the wife should be such as she can live in reasonable comfort considering her status and the mode of life she used to when she lived with her husband and she does not feel handicapped in the prosecution of her case. The amount when fixed cannot be excessive.

High Court of Karnataka in K R Arun Vs Smt. M. Latha

Prepared by: S. Hemanth

Advocate at Hemanth & Associates

REVIEWING OF THE SANCTION TO PROSECUTE A PUBLIC SERVANT

Reviewing or reconsidering of the earlier order refusing to grant sanction to prosecute a public servant is possible in a case where fresh materials have been collected by the investigating agency subsequent to the earlier order and placed before the sanctioning authority.

In this case, the petitioner, a public servant, while working as Deputy Electrical Inspector, was trapped by the Lokayukta Police, on 18.12.2010, while allegedly taking bribe money of Rs. 18,000/- from the 4^th respondent, an electrical contractor. Upon completion of investigation, to prosecute the petitioner, sanction was sought, under S.19 of the Prevention of Corruption Act, 1988 (for short ‘the Act’) from respondent No. 1. Government of Karnataka, on the basis of the material placed by the Investigating Agency and on examination of the case, found no justification to grant the sanction. By order dated 28.03.2013, sanction for prosecution of petitioner was rejected.

Additional Director General of Police, Karnataka Lokayukta, furnished clarification with reference to the said order of rejection and requested the 1^st respondent to reconsider its decision and accord sanction. Government of Karnataka having reconsidered the matter and accorded sanction for prosecution of the petitioner, vide Government Order dated 03.07.2014, as at Annexure – A, this case was filed to quash the said order.

The Hon’ble High Court of Karnataka in Shri L. Megha Naik Vs. State of Karnataka by its Principal Secretary to the Government, Energy Department, Bengaluru and others, followed the proposition law laid down in the case of Nishant Sareen. The Hon’ble High Court of Karnataka held that if the respondent had any grievances against the first order, refusing to grant sanction, ought to have challenged the said order. The said order having been allowed to become final and the power of sanctioning authority being not of continuing character i.e., in the absence of any other fresh material, could not be exercised, the case/writ petition filed by the petitioner was allowed.

Prepared by: S. Hemanth

Advocate at Hemanth & Associates

ADVOCATE ALONE CANNOT SETTLE THE MATTER BEFORE LOK ADALATH

In this case, the petitioner/plaintiffs assailing the impugned award contents that the plaintiffs have not affixed their signatures to the compromise; award/decree is passed on the basis of a compromise signed by their Counsel. The same is patently illegal and therefore, requires to be set aside. It is on the basis of the signature of their Advocate, compromise is recorded and an award/decree is passed which is patently illegal and therefore, he submits the impugned award requires to be set aside.

As could be seen from the compromise, acting on the family agreement and partition deed under which the properties of the joint family are partitioned by metes and bounds, an attempt is made to convey properties which had fallen to their respective shares in favour of others, probably, to make adjustments. The plaintiffs have not agreed to the said compromise and as is clear from the facts, they have not affixed the signatures to the compromise. This goes to show that the very purpose of referring the matter to Lok Adalath and conducting Lok Adalath is defeated. In the Lok Adalath, the parties have to come face to face, sit together and resolve the dispute with the assistance of the Counsel and the members of the Lok Adalath. If the parties are not coming together, the Advocates for the parties cannot force compromise upon them and the Lok Adalath cannot accept such compromise.

The Hon’ble High Court of Karnataka allowed the writ petition and the order passed by the Lok Adalath was set aside. The original suit was restored to its file.  [Sri. Govardhana and Another Vs. Appi and Others]

Prepared by: S. Hemanth

Advocate at Hemanth & Associates

USELESS FORMALITY THEORY

Union of India, vide Memorandum dated December, 24, 1997, unveiled a new industrial policy for the North-Eastern region. In the said policy, in order to give stimulation to the development of industrial infrastructure in the North-Eastern region, the said region was made tax free zone for a period of ten years giving incentives to those who wanted to establish industries in that region.

However, on December, 31, 1999, another Notification was issued whereby exemption of central excise was withdrawn in respect of goods falling under Chapter 21.06 (pan masala) and Chapter 24 (tobacco and tobacco substitutes, including cigarettes, chewing tobacco etc.).

This withdrawal Notification was challenged by the appellant by filing the writ petition in the High Court of Gauhati. The learned single Judge dismissed the writ petition. However appeal preferred by the appellant was allowed by the Division Bench vide judgment dated December, 03, 2012.   

However, after notifying Section 154 of the Act of 2003, which had nullified the effect of Notification No. 32 of 1999 retrospectively thereby annulling the effect thereof altogether, respondent No. 1 herein passed recovery order dated June, 03, 2003 for recovery of a sum of Rs. 2,93,43,244/- (Rupees two crores ninety three lakhs forty three thousand two hundred and forty four only) from the appellant, which was the benefit that had been drawn by the appellant for the period November, 1999 till February, 2001 in terms of Notification No. 32 of 1999. By another order dated June, 06, 2003 issued by respondent No. 1, the appellant was directed to pay the excise duty for the said period for which the benefit had been availed. He also rejected the pending claim of refund for the period from March, 2001 till May, 31, 2003. There recovery orders were challenged by the appellant by filing appeal before the Commissioner (Appeals). This order of pre-deposit was challenged by the appellant by filing four writ petitions in the High Court of Gauhati. The learned single Judge of the High Court, however, dismissed these writ petitioners vide order dated May, 18, 2004. The appellant carried this issue of pre-deposit to a higher forum in the form of writ appeals before the Division Bench of the said Court. The Commissioner (Appeals) heard the appeals and passed the orders dated June 15, 2005 deciding the appeals in favour of the appellant. He held that issuance of show-cause notice was mandatory before a valid recovery of demand could be made from the appellant and, thus, remitted the matter to the adjudicating authority, both the appellant as well as the Revenue filed appeals aggrieved against the order dated June, 15, 2005 passed by the Commissioner (Appeals). The Customs Excise & Service Tax Appellant Tribunal (for short ‘CESTAT’) decided these appeals vide common order dated May 28, 2007. It reversed the order of Commissioner (Appeals), which resulted in allowing the appeal filed by the Revenue and dismissing the appeal preferred by the appellant.

One of the issued was whether recovery proceedings can be initiated without show-cause notice under section 11A of the Excise Act, which is mandatory?

The Supreme Court held that “the appellant was accorded certain benefits under Notification dated July, 08, 1999. This Notification stands nullified by Section 154 of the Act of 2003, which has been given retrospective effect. The legal consequence of the aforesaid statutory provision is that the amount with which the appellant was benefitted under the aforesaid Notification becomes refundable. Even after the notice is issued, the appellant cannot take any plea to retain said amount on any ground whatsoever as it is bound by the dicta in R.C. Tobacco (supra). Like-wise, even the officer who passed the order has no choice but to follow the dicta in R.C. Tobacco (supra). It is important to note that as far as quantification of the amount is concerned, it is not disputed at all. In such a situation, issuance of notice would be an empty formality and we are of the firm opinion that the case stands covered by ‘useless formality theory’.

The Supreme Court held that by the factual matrix the non-issuance of notice before sending communication dated June, 23, 2003 had not resulted in any prejudice to the appellant and it may not be feasible to direct the respondents to take fresh action after issuing notice as that would be a mere formality.

[M/s Dharampal Satyapal Ltd., Vs. Deputy Commissioner of Central Excise, Gauhati and Ors.;   2015 AIR SCW 3884]   

Prepared by: S. Hemanth

Advocate at Hemanth & Associates

SANCTION TO PROSECUTE POLICE OFFICER

In the this case, the allegation was that the police officer/appellant exceeded in exercising his power during investigation of a criminal case and assaulted the respondent in order to extract some information with regard to the death of one Sannamma, and in that connection, the respondent was detained in the police station for some time.

The Hon’ble Supreme Court held that by the factual matrix, it is evident that the whole allegation is on police excess in connection with the investigation of a criminal case. The said offensive conduct is reasonably connected with the performance of the official duty of the appellant. Therefore, the learned Magistrate could not have taken cognizance of the case without the previous sanction of the State Government. The High Court missed this crucial point in the impugned order. [D.T. Virupakshappa Vs. C Subash]

Prepared by: S. Hemanth

Advocate at Hemanth & Associates

INTENTION OF BIDDER NOT BONAFIDE, POSSESSION CAN RESUME

In this case, the respondent had participated in an auction conducted by the appellants for disposal of certain booths situated in Sector 9 at Panchkula and had offered the highest bid of Rs. 4 lakhs for booth No. 103 situated in the said sector. As he was the highest bidder, subject to the conditions of the auction, he has allotted the said booth vide Memo No. 12351 dated 14^th September, 1988. The respondent had deposited Rs. 40, 000/-, being 10% of the amount of bid, immediately and thereafter he had further deposited a sum of Rs. 60,000/- so as to make 25% of the total amount offered by him.

The balance amount of Rs. 3 lakhs was to be paid by the respondent to the appellant authorities in 10 half yearly instalments along with interest @10% per annum. There was a condition in the auction sale that in case of default in payment, the respondent had to pay interest @10% per annum on the unpaid amount and it was also open to the appellant to impose further amount of penalty and the resume possession of the both.

The Supreme Court held that from the facts it shows that the respondent committed several irregularities in making payment of the remaining amount; respondent is not having bona fide intention and is merely trying to remain in possession without making payment of the bid amount, which he had agreed to pay. It would be open to the appellant to take possession of the booth in question in accordance with law.  [HUDA & another Vs. Kedar Nath; 2015 AIR SCW 3947].

Prepared by: S. Hemanth

Advocate at Hemanth & Associates