PROCEDURES TO BE FOLLOWED IN CHEQUE BOUNCE CASES (SECTION 138)

The Hon’ble Supreme Court in Indian Bank Association and Ors. Vs. Union of India (UOI) and Anr. [AIR2014SC2528 = (2014)5SCC590] had issued direction to all the Criminal Courts in the country dealing with Section 138 cases to follow the below-mentioned procedures for speedy and expeditious disposal of cases falling Under Section 138 of the Negotiable Instruments Act.

DIRECTIONS:

(1) Metropolitan Magistrate/Judicial Magistrate (MM/JM), on the day when the complaint Under Section 138 of the Act is presented, shall scrutinize the complaint and, if the complaint is accompanied by the affidavit, and the affidavit and the documents, if any, are found to be in order, take cognizance and direct issuance of summons.

(2) MM/JM should adopt a pragmatic and realistic approach while issuing summons. Summons must be properly addressed and sent by post as well as by e-mail address got from the complainant. Court, in appropriate cases, may take the assistance of the police or the nearby Court to serve notice to the accused. For notice of appearance, a short date be fixed. If the summons is received back un-served, immediate follow up action be taken.

(3) Court may indicate in the summon that if the accused makes an application for compounding of offences at the first hearing of the case and, if such an application is made, Court  may pass appropriate orders at the earliest.

(4) Court should direct the accused, when he appears to furnish a bail bond, to ensure his appearance during trial and ask him to take notice Under Section 251 Code of Criminal Procedure to enable him to enter his plea of defence and fix the case for defence evidence, unless an application is made by the accused Under Section 145(2) for re-calling a witness for cross-examination.

(5) The Court concerned must ensure that examination-in-chief, cross-examination and re-examination of the complainant must be conducted within three months of assigning the case. The Court has option of accepting affidavits of the witnesses, instead of examining them in Court. Witnesses to the complaint and accused must be available for cross-examination as and when there is direction to this effect by the Court.

 Prepared by: S. Hemanth

Advocate at Hemanth & Associates

ACCUSED HAS NO RIGHT TO FILE AFFIDAVIT OF EVIDENCE IN CHEQUE BOUNCE CASES

The Supreme Court in M/s Mandvi Co-op Bank Ltd. v Nimesh B. Thakore (AIR 2010 SC 1402 = (2010)3SCC83) ruled that in cheque bouncing cases, the right to give evidence on affidavit, as provided to the complainant under section 145 of the Negotiable Instruments Act, is not available to the accused, on a bare reading of Section 143 it is clear that the legislature provided for the complainant to give his evidence on affidavit and did not provide for the accused to similarly do so.

Prepared by: S. Hemanth

Advocate at Hemanth & Associates

PUNISHMENT IMPOSED BY THE APPELLATE AUTHORITY

The petitioner is governed by clause........ Therein the authorities that could have imposed the penalty is the General Manager (Development). The authority to whom an appeal would lie is the Managing Director. The Revisional authority is the Board. It runs contrary to the Rules. The order or removal has been passed by the appellate authority and not by the authority who can pass the order of punishment.

The Hon’ble High Court of Karnataka in N. Dasharath Wadi Versus The managing director, Karnataka Scheduled Castes and Scheduled Tribes Development Corporation Limited, Bangalore, held that - In the instant case also a provision for appeal has been provided against the order of disciplinary authority. It is not the case where there is no provision for an appeal. Therefore, the law as laid down by the Hon’ble Supreme Court in Surjit Ghosh Vs. Chairman & Managing Director, United Commercial Bank and others requires to be applied to the present case. Under these circumstances I have no hesitation to hold that the order of removal from service suffers from an error and a defect and consequently would have to be set aside. Under these circumstances considering the petitioner’s case so far as the merits of the enquiry report is concerned would not arise for consideration. The plea is one of an inherent error in passing the order of punishment. Therefore, it is not necessary to go into the merits of the finding recorded by the Enquiry officer, the petition was allowed employee reinstated with 50% back wages from dated of removal.   

   

Prepared by: S. Hemanth

Advocate at Hemanth & Associates

MAHR/DOWER – HIBA – ESSENTIAL OF HIBA – REGISTRATION OF HIBA – HIBA-BIL-IWAZ – LIS PENDENCE – SALE DEED PROOF

The Hon’ble Karnataka High Court in Mr. Syed Basheer Malik and Another Versus Smt. Jameela Begum since dead by LRs and Others had held following important observations in respect of sale deed proof, Mahr, Hiba/Gift, Essentials of Hiba, Registration of Hiba, Hiba-Bil-Iwaz and Lis pendence 

REGISTERED SALE DEED PROOF:

The sale deed after execution is registered in accordance with the provisions of Indian Registration Act, 1908, unless its execution by the person by whom it purported to have been executed is denied, the production of the said document is sufficient to prove the said document.

MAHR OR DOWER:

Under Mohammedan Law, ‘Dower’ or ‘Mahr’ is any amount or property which has some monetary value and the wife is entitled to get it from her husband, ‘Mahr’ or Dower’ is a sum of money or other properties which the wife is entitled to receive from the husband in consideration of the marriage. ‘Dower’ is an obligation imposed upon the husband as a mark of respect to the wife. The husband may settle any amount he likes by way of ‘Dower’ upon his wife though it may be beyond his means and though nothing may be left to his heirs after payment of the amount. But he cannot in any case settle less than ten dirhams. The amount of ‘Dower’ may be fixed either before or at the time of marriage or after marriage and can be increased after marriage. If the amount of ‘Dower’ is not fixed, wife is entitled to proper ‘Dower’ even if the marriage was contracted on the express condition that she should not claim any ‘Dower’.

In determining what is “proper” dower, regard is to be had to the amount of dower settled upon other female members of her father’s family such as her father’s sisters. The amount of ‘Dower’ used is usually split into two parts, one called ‘Prompt’ which is payable on demand and the other called ‘Deferred’ which is payable on dissolution of the marriage by death or divorce. The ‘Dower’ ranks as a debt and the widow is entitled, along with other creditors of her deceased husband, to have it satisfied on his death out of his estate. Her right, however,- is no greater than that of any other unsecured creditor, except that she has a right of retention to the extent mentioned in Sec. 296 below. She is not entitled to any charge on her husband’s property, though such a change may be created by agreement.

The right of widow to retain possession of her husband’s property under a claim for ‘Dower’ does not carry with it the right to alienate the property, the alienation is valid to the extent of her own share. It does not affect the shares of other heirs of her husband.

The ‘Dower’ is inherent in the concept of marriage under the Mohammedan Law and it is an integral part of it. It is a sort of deterrent to the husband’s absolute power of pronouncing ‘divorce’ on his wife. So the main object of ‘Dower’ is to offer protection to the wife against such arbitral power. ‘Dower’ is something which has some value in terms of money and the wife is entitled to receive it as ‘gift’ from her husband for entering into a contract of marriage.

HIBA/GIFT:

“A hiba or gift is “a transfer of property, made immediately, and without any exchange,” by one person to another, and accepted by or on behalf of the latter. Every Mohammedan of sound mind and not a minor may dispose of his property by gift. Writing is not essential to the validity of a gift either of moveable or of immovable property. It is essential to the validity of a gift that the donor should divest himself completely of all ownership and dominion over the subject of the gift.

ESSENTIALS OF HIBA/GIFT:

The three essentials of a gift under Mohammedan law are as under:

There should be:-

(1)   A declaration of gift by the donor

(2)  An acceptance of the gift, express or implied, by or on behalf of the donee, and

(3)  Delivery of possession of the subject of the gift by the donor to the donee.

If there conditions are complied with, the gift is complete.

HIBA-BIL-IWAZ:

Under Mohammedan Law a “hiba-bil-iwaz”, as distinguished from a hiba or simple gift, is a gift for a consideration. It is in reality a sale, and has all the incidents of a contract of sale. Accordingly possession is not required to complete the transfer as it is in the case of a hiba, and an undivided, share (mushaa) in property capable of division may be lawfully transferred by it, though this cannot be done in the case of a hiba. Two conditions, however, must concur to make the transaction valid, namely, (1) actual payment of consideration (iwaz) on the part of the donee, and (2) a bona fide intention on the part of the donor to divest himself in praesenti of the property and to confer it upon the donee. The adequacy of consideration is not material; but whatever its amount, it must be actually and bona fide paid. Such a transaction is called the hiba-bil-iwaz of India as distinguished from “true” hiba-bil-iwaz. Therefore, hiba-bil-iwaz means, literally, a gift for an exchange. It is of two kinds, one being the true hiba-bil-iwaz, that is, hiba-bil-iwaz as defined by the older jurists, and the other hiba-bil-iwaz of India. In the former there are two acts, namely, (1) the hiba, which is followed by (2) an independent and uncovenanted iwaz (return-gift, that is, an iwaz not stipulated for at the time of hiba). In the latter there is only one act, the iwaz or exchange being involved in the contract of gift as its direct consideration. In the true hiba-bil-iwaz, the hiba and iwaz, are both governed by the law of gifts. There must be delivery of possession both of the hiba and iwaz, and they are both subject to the doctrine of mushaa. The transaction consists of two distinct acts of donation between two persons each of whom is alternately the donor of one gift and the donee of the other.   

REGISTRATION OF GIFT/HIBA:

Hiba or Gift under Mohammedan Law is a transfer of property made immediately and without any exchange by one person to another and accepted by or on behalf of the latter. Though Section 123 of the Transfer of Property Act, makes it mandatory that a gift must be effected by a registered instrument, by virtue of Section 129 of the Transfer of Property Act, Chapter VII which deals with gifts under the Transfer of Property Act, does not affect any rule of Mohammedan Law. Therefore, Hiba, the subject matter of whatever value need not be registered as required by Section 123. It can be oral, but it should be adequately proved.

LIS PENDENS:

It is settled legal position that the effect of Section 52 of the Transfer of Property Act is not to render transfers effected during the pendency of the suit by a party to a suit void. It only renders such transfers subservient to the rights of the parties to the said suit as may be eventually determined in the suit. In other words, the transfer remains valid subject, of course, to the result of the suit. The mere pendency of the suit does not prevent one of the parties from dealing with the property constituting the subject matter of the suit. The principle underlying Section 52[e] is that the litigating party is exempted from taking notice of title acquired during the pendency of the litigation. The section only postulates a condition that the alienation will in no manner affect the rights of other party under a decree which may be passed in the suit unless the property is alienated with the permission of the Court. Therefore, in the absence of any prescription under statute, from alienating the property during the pendency of the suit, an alienation made by a party to the suit is valid and legal and it is not void ab initio. However, transfer remains valid, subject of course, to the result of the suit. If the person from whom the property is purchased succeeds in the suit, the purchaser succeeds. If the party loses, the purchaser loses and therefore the question whether alienation is valid or not is determined after determination of rights of the parties in the suit finally. 

Prepared by: S. Hemanth

Advocate at Hemanth & Associates

MUTATION ENTRIES DO NOT CONVEY OR EXTINGUISH ANY TITLE

The plaintiff mother who is Gowramma owned a property and she died intestate leaving behind her one son who is the plaintiff and the 1^st defendant her husband, on her death the 1^st defendant had given declaration before the revenue authority to change the Khata in the name of the plaintiff and the mutation was effected accordingly and the revenue records stood in the name of plaintiff for long period of time. The plaintiff case is that the 1^st defendant entered into 2^nd marriage and had children i.e., defendant Nos. 2 to 5 and they denied the ownership of the plaintiff.

The trial court after consideration of evidence dismissed the suit filed by the plaintiff. The lower appellant court held that plaintiff and 1^st defendant being class 1 heir and entitled to half share in the property. The plaintiff preferred 2^nd appeal and the High Court of Karnataka allowed the same by setting aside the judgement of the lower appellant court. Aggrieved by the High Court order the defendant preferred appeal to the Supreme Court.

ISSUE

Whether declaration before the revenue authorities to change the khata is a relinquishment of right over the property, whether the mutation entries convey the title

VIEW HELD

The mutation entries do not convey or extinguish any title and those entries are relevant only for the propose of collection of land revenue. The declaration provided by the 1^st defendant for change of katha/mutation does not divest himself from the title and possession and his share in suit schedule property.

The Hon’ble Supreme Court in H.Lakshmaiah Reddy and others Vs L.Venkatesh Reddy set-aside the judgement and decree of the High Court and the judgement and decree of the lower appellant Court was restored and the appeals were allowed as per the orders.         

Prepared by: S. Hemanth

Advocate at Hemanth & Associates

DISTRICT FORUM CAN GRANT MAXIMUM OF 45 DAYS TIME TO THE OPPOSITE PARTY TO FILE HIS VERSION OR REPLY

Three Judges Bench of Supreme Court, answering a reference to it in New India Assurance Co. Ltd. Vs. Hilli Multipurpose Cold Storage Pvt. Ltd., has reiterated that the District Consumer Forum can grant a further period of 15 days (after the expiry of initial 30 days) to the opposite party for filing his version or reply and not beyond that.

ISSUE

The issue is within which time the opponent has to give his version to the District Forum in pursuance of a complaint filed by the complainant to the consumer forum under the provisions of section 12 of the Consumer Protection Act.

LAW

13. Procedure on admission of complaint – (1) ...............

(2) The District Forum shall, if the complaints admitted by it under Section 12 relates to goods in respect of which the procedure specified in sub-section (1) cannot be followed, or if the complaint relates to any services, –

(a) refer a copy of such complaint to the opposite party directing him to give his version of the case within a period of thirty days or such extended period not exceeding fifteen days as may be granted by the District Forum;

(b) ---------------

DR. J.J. MERCHANT CASE DECIDED ON 2002

 In this case, a three judge bench of Apex Court had held “there is legislative mandate to the District Forum or the Commissions to dispose of the complaints as far as possible within prescribed time of three months by adhering strictly to the procedure prescribed under the Act. The opposite party has to submit its version within 30 days from the date of the receipt of the complaint by him and Commission can give at the most further 15 days for some unavoidable reasons to file its version.”

KAILASH CASE DECIDED ON 2005

 In this case, another Three judges bench, held that limit of 90 days, as prescribed by the proviso to Rule 1 of Order 8 of the Civil Procedure Code, is not mandatory,but directory in nature, and further time for filing reply can be granted, if the circumstances are such that require grant of further time for filing the reply. In this case, Dr JJ Merchant case was also discussed and it was held that the observations made in that case, to the extent it deal with the Rule 1 of Order 8 of CPC was obiter.

VIEW HELD (EARLIER DECISION PREVAILS)

The Apex court said that since the issue discussed in Dr J.J. Merchant case is identical to the issue in the present case, it holds the field and not the latter view in Kailash case, since it deals with CPC provisions.

Also the law laid down in the Dr. J.J. Merchant case was decided on 2002, which is earlier in time and will prevail, but even a Bench of coordinate strength of this Court, which had decided the case of Kailash (decided on 2005) was bound by the view taken by a three-Judge Bench in the case of Dr. J.J. Merchant. As per the law laid down the subsequent Court ought to have respected the view expressed by the earlier Court. The established legal positions which are summarized below cannot be ignored:

(1) The law laid down by this Court in a decision delivered by a Bench of larger strength is binding on any subsequent Bench of lesser or co-equal strength.

(2) A Bench of lesser quorum cannot disagree or dissent from the view of the law taken by a Bench of larger quorum. In case of doubt all that the Bench of lesser quorum can do is to invite the attention of the Chief Justice and request for the matter being placed for hearing before a Bench of larger quorum than the Bench whose decision has come up for consideration. It will be open only for a Bench of coequal strength to express an opinion doubting the correctness of the view taken by the earlier Bench of coequal strength, whereupon the matter may be placed for hearing before a Bench consisting of a quorum larger than the one which pronounced the decision laying down the law the correctness of which is doubted.

(3) The above rules are subject to two exceptions: (i) The above said rules do not bind the discretion of the Chief Justice in whom vests the power of framing the roster and who can direct any particular matter to be placed for hearing before any particular Bench of any strength; and

(ii) In spite of the rules laid down hereinabove, if the matter has already come up for hearing before a Bench of larger quorum and that Bench itself feels that the view of the law taken by a Bench of lesser quorum, which view is in doubt, needs correction or reconsideration then by way of exception (and not as a rule) and for reasons given by it, it may proceed to hear the case and examine the correctness of the previous decision in question dispensing with the need of a specific reference or the order of Chief Justice constituting the Bench and such listing.

Prepared by: S. Hemanth

Advocate at Hemanth & Associates

WOMEN RIGHT OVER STRIDHANA PROPERTIES

The Hon’ble Supreme Court in Krishna Bhatacharjee Vs. Sarathi Choudhury and another (reported in 2015 AIR SCW 6386) have decided on the claim made by women over her Stridhana properties, the apex court observed who is the “aggrieved person” as defined under the Protection of Women from Domestic Violence Act, 2005 and whether the claim was barred by limitation and the relationship of husband and wife when there is a decree of judicial separation.

Stridhana properties means: Stridhana properties are properties gifted to the girl before her marriage, at the time of marriage or at the time of giving farewell or thereafter. It is her absolute property with all rights to dispose at her own pleasure. Husband has no control over her Stridhana properties, he may use it during the time of his distress but nonetheless he has a moral obligation to restore the same or its value to his wife. The Stridhana properties are not joint properties of the wife and husband, the husband will have no right or title over the Stridhana property.

Domestic violence includes Economic Abuse: The Protection of Women from Domestic Violence Act, 2005, is the beneficial as well as assertively affirmative enactment for the realisation of the constitutional rights of women and to ensure that they do not become victims of any kind of domestic violence. The definition of “Domestic Violence” covers a range of violence including “Economic Abuse”.

Background before appealing to Supreme Court: The appellant (woman/wife) having lost the battle for getting her Stridhan back from her husband, before the learned Magistrate on the ground that the claim preferred under Section 12 of the Protection of Women from Domestic Violence Act, 2005 was not entertainable as she had ceased to be an "aggrieved person" under Section 2(a) of the 2005 Act and further that the claim as put forth was barred by limitation; preferred an appeal before the learned Additional Sessions Judge who concurred with the view expressed by the learned Magistrate. Subsequently approached the High Court of Tripura, Agartala in Criminal Revision, the High Court declined to interfere with the lower court findings, consequently wife preferred appeal, by special leave before the Supreme Court.

Difference between decree for divorce and judicial separation: There is a distinction between a decree for divorce and decree of judicial separation; in the former, there is a severance of status and the parties do not remain as husband and wife, whereas in the later, the relationship between husband and wife continues and legal relationship continues as it has not been snapped. Therefore wife does not cease to be an “aggrieved person” because of decree of judicial separation. Once decree for divorce is passed the parties become different, but that is not so when there is a decree for judicial separation.

Continuing offence: The retention of Stridhana by the husband or any other family members is a continuing offence.  Neither the husband nor any other family members can have any right over the Stridhana and they remain the custodians. Wife as long as she remain the status of the “aggrieved person” can file for her right or claim under 2005 Act for her stridhana properties. In the above case, the wife had submitted the application on 22.05.2010 and the said authority had forwarded the same on 01.06.2010 to the Magistrate. In the application, the wife had mentioned that the husband had stopped payment of monthly maintenance from January 2010 and, therefore, she had been compelled to file the application for Stridhana. Regard being had to the said concept of "continuing offence" and the demands made, the Hon’ble Supreme held that the application was not barred by limitation and the courts below as well as the High Court had fallen into a grave error by dismissing the application being barred by limitation.

The Hon’ble Supreme Court allowed the appeal and directed the concerned magistrate to proceed with the application filed by the appellant wife under provision of section 12 of Protection of Women from Domestic Violence Act, 2005.

Prepared by: S. Hemanth

Advocate at Hemanth & Associates