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

COMPACT DISC (C.D) RECODING IS A DOCUMENT OF EVIDENCE

The Hon’ble Supreme Court of India in Shamsher Singh Verma Versus State of Haryana decided matter in respect of Compact Disc (C.D) which is recording of a conversation as a document in evidence Act.

In the Criminal Appeal by Shamsher Singh Verma filed before the Supreme Court against the order of High Court of Punjab and Haryana at Chandigarh, whereby the said Court had affirmed the order passed by the Special Judge, Kaithal, rejecting the application of accused for getting exhibited the C.D. filed in defence by the accused.

The C.D. consists of recording of the conversation between the father of victim, son and wife of the accused.

The Hon’ble Supreme Court held that the C.D. is also a document under the evidence Act. The C.D. can be played to enable the public prosecutor to admit or deny the document and to get it verified by the forensic science laboratory

Prepared by: S. Hemanth
Advocate at Hemanth & Associates

A PRIVATE LIMITED COMPANY USING SERVICES IS A BODY CORPORATE AND NOT A NATURAL PERSON WHO NEEDS TO EARN HIS LIVELIHOOD

The complainant a private limited company availing services of bank for business purposes, its complaint is not maintainable before the Consumer Forum. The company is a body corporate and not a natural person who needs to earn his livelihood.

​

M/s Recorders and Medicare Systems Pvt. Ltd. through its Director and authorized signatory, Shri Jalesh Grover, has filed complaint before the National Consumer Disputes Redressal Commission, under section 21 of the Consumer Protection Act, 1986 against the State Bank of Patiala, claiming deficiency on the part of the respondent/opposite party bank on account of its failure to renew the insurance policy which it had been doing in its capacity as Monitoring Institution of the complainant Company and for which it had charged fees as consideration for its services.

​Since the services of the respondent Bank have been availed of by the complainant for business/commercial purposes, its complaint is not maintainable before the consumer Fora under the Consumer Protection Act, 1986 in view of the provisions of section 2 (1) (d). Although the explanation appended to section 2 (1) (d) of the Act provides that the "commercial purpose" does not include the services availed by the person exclusively for the purpose of earning his livelihood by means of self-employment. However, the explanation restricting the scope of the commercial purpose is of no avail to the complainant because complainant is a body corporate and not a natural person who needs to indulge to earn his livelihood. In view of this, we are of considered view that the complainant is not covered under the definition of consumer as defined under section 2 (1) (d) (ii) of the Act and as such the complaint is not maintainable before the consumer Forum.

The above was held by the National Consumer Disputes Redressal Commission (NCDRC) in ​M/s. Recorders and Medicare System Pvt. Ltd Vs ​State Bank of Patiala (SBP) and others.

Prepared by: S. Hemanth

Advocate at Hemanth & Associates

SUPREME COURT OF INDIA ON SECTION 6 OF THE HINDU SUCCESSION ACT – DAUGHTERS RIGHT TO PROPERTY

The Hon’ble Supreme Court decided on the matter whether Hindu Succession (Amendment) Act, 2005 will have retrospective effect. The Hon’ble Court held that an amended of a substantive provision is always prospective.

The following are most important declarations from the decision of the Hon’ble Supreme Court in Prakash Vs Phulavath, which affect the right of a daughter in respect of the property:

1. The rights under the amendment are applicable to living daughters of living coparceners as on 9^th September, 2005 irrespective of when such daughters are born.

2. Partitions effected before 20^th December, 2004 remain unaffected. The partition means a partition made by registered deed or effected by decree of a Court. In any case statutory notational partition remains valid and effective.

3. An amendment of a substantive provision is always prospective unless either expressly or by necessary intendment it is retrospective.

4. Birth of the daughter after the amendment is not necessary, all that is required is that daughter should be alive and her father also is alive on the date of the amendment.

5. If the father had died prior to the commencement of the amendment (here, father self earned property died intestate) the amendment provision will not apply.

Prepared by: S. Hemanth

Advocate at Hemanth & Associates

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