WHETHER A STUDENT IS A CONSUMER?

The National Consumer Disputes Redressal Commission had held that an education board is not a service provider and a student writing an exam is not a consumer.

The National Consumer Disputes Redressal Commission in University of Delhi Vs Mohd. A.M Abel Karim22 held:

“The process of holding examinations, evaluating answer scripts, declaring results and issuing certificates are different stages of a single statutory non-commercial function. It is not possible to divide this function as partly statutory and partly administrative. When the Examination Board conducts an examination in discharge of its statutory function, it does not offer its “services” to any candidate. Nor does a student who participates in the examination conducted by the Board, hires or avails of any service from the Board for a consideration. On the other hand, a candidate who participates in the examination conducted by the Board, is a person who has undergone a course of study and who requests the Board to test him as to whether he has imbided sufficient knowledge to be fit to be declared as having successfully completed the said course of education; and if so, determine his position or rank or competence vis- -vis other examinees. The process is not therefore availment of a service by a student, but participation in a general examination conducted by the Board to ascertain whether he is eligible and fit to be considered as having successfully completed the secondary education course. The examination fee paid by the student is not the consideration for availment of any service, but the charge paid for the privilege of participation in the examination. The Act does not intend to cover discharge of a statutory function of examining whether a candidate is fit to be declared as having successfully completed a course by passing the examination. The fact that in the course of conduct of the examination, or evaluation of answer – scripts, or furnishing of mark-sheets or certificates, there may be some negligence, omission or deficiency, does not convert the Board into a service – provider for a consideration, nor convert the examinee into a consumer who can make a complaint under the Act. The Board is not a ‘service provider’ and a student who takes an examination is not a ‘consumer’ and consequently, complaint under the Act will not be maintainable against the Board”.

Prepared by: S. Hemanth

Advocate at Hemanth & Associates 

DEATH RESULT OF CRUELTY OR DEMAND OF DOWRY, DENIAL CANNOT BE TREATED AS DISCHARGE OF ONUS

In a case of dowry death,  accused were charged with offences under sections 498-A and 304-B of the Penal Code, 1860, the Supreme Court in Pathan Hussair Basha Vs State of A.P21 observed that the present case completely satisfied the ingredients of section 304-B and 498-A IPC. The Court further observed that it is for the accused to show that the death of the deceased did not result from any cruelty or demand of dowry by the accused persons. The accused did not care to explain as to how the death of his wife occurred. Denial cannot be treated to be the discharge of onus. Onus has to be discharged by leading proper and cogent evidence. It is expected of the accused to explain as to how and why his wife died, as well as his conduct immediately prior and subsequent to the death of the deceased. Maintaining silence cannot be equated to discharge of onus by the accused. Herein, prosecution by reliable and cogent evidence has established the guilt of the accused. There being no rebuttal thereto, there is no occasion to interfere in the judgements of the courts under appeal.

The Supreme Court in Pathan Hussair Basha Vs State of A.P21, held:

“… the rule of law requires a person to be innocent till proved guilty. The concept of deeming fiction is hardly applicable to the criminal jurisprudence. In contradistinction to this aspect, the legislature has applied the concept of deeming fiction to the provisions of section 304-B. Where other ingredients of section 304-B are satisfied, in that event, the husband or all relatives shall be deemed to have caused her death. In other words, the offence shall be deemed to have been committed by fiction of law. Once the prosecution proves its case with regard to the basic ingredients of section 304-B the Court will presume by deemed fiction of law that the husband or the relatives complained of, has caused her death. Such a presumption can be drawn by the Court keeping in view the evidence produced by the prosecution in support of the substantive charge under section 304-B of the Code.

Applying these principles to the facts of the present case, it is clear that the ingredients of section 304B read with section 498A IPC are completely satisfied in the present case. By a deeming fiction in law, the onus shifts on the accused to prove as to how the deceased died. It is for the accused to show that the death of the deceased did not result from any cruelty or demand of dowry by the accused persons. The accused did not care to explain as to how the death of his wife occurred. Denial cannot be treated to be the discharge of onus. Onus has to be discharged by leading proper and cogent evidence. It was expected of the accused to explain as to how and why his wife died, as well as his conduct immediately prior and subsequent to the death of the deceased. Maintaining silence cannot be equated to discharge of onus by the accused. In the present case, the prosecution by reliable and cogent evidence has established the guilt of the accused. There being no rebuttal thereto, there is no occasion to interfere in the judgments of the courts under appeal”.

Prepared by: S. Hemanth

Advocate at Hemanth & Associates

PERSON CONVICTED UNDER S.138 N.I ACT (CHEQUE BOUNCE) CAN BE PROSECUTED UNDER S.420 IPC

A person tried earlier for the offences punishable under the provisions of section 138 of the Negotiable Instrument Act (for cheque bounce)  is not a bar for punishing under section 420 Indian Penal Code (IPC). Doctrine of Double Jeopardy not attracted. As observed in the Hon’ble Supreme Court decision in Sangeetaben Mahendrabhai Patel Vs State of Gujarat & Another20.

The Hon’ble Supreme Court in Sangeetaben Mahendrabhai Patel Vs State of Gujarat & Another20 held:

“Admittedly, the appellant had been tried earlier for the offences punishable under the provisions of section 138 N.I Act and the case is sub judice before the High Court. In the instant case, he is involved under sections 406/420 read with section 114 IPC. In the prosecution under section 138 N.I Act, the mens rea i.e fraudulent or dishonest intention at the time of issuance of cheque is not required to be proved. However, in the case under IPC involved herein, the issue of mens rea may be relevant. The offence punishable under section 420 IPC is a serious one as the sentence of 7 years can be imposed. In the case under N.I Act, there is a legal presumption that the cheque had been issued for discharging the antecedent liability and that presumption can be rebutted only by the person who draws the cheque. Such a requirement is not there in the offences under IPC. In the case under N.I Act, if a fine is imposed, it is to be adjusted to meet the legally enforceable liability. There cannot be such a requirement in the offences under IPC. The case under N.I Act can  only be initiated by filing a complaint. However, in a case under the IPC such a condition is not necessary.

There may be some overlapping in both the cases but ingredients of offences are entirely different. Thus, the subsequent case is not barred by any of the aforesaid statutory provisions.”

Prepared by: S. Hemanth

Advocate at Hemanth & Associates

CAN CRYPTIC MESSAGES CONSIDERED FOR FIR?

Can cryptic messages be considered as a First Information Report (FIR). FIR a written document prepared by the police when they receive information about the commission of a cognizable offence. HELD cryptic messages not FIR.

The Hon’ble Supreme Court in Anand Mohan Vs State of Bihar19 observed cryptic messages cannot be FIR.

Supreme Court in Binay Kumar Singh and others Vs State of Bihar [(1997) 1 SCC 283] held that the officer in-charge of the police station is not obliged to accept as FIR any nebulous information received from somebody which does not disclose any authentic cognizable offence and it is open to the officer in-charge to collect more information containing details of the occurrence, if available, so that he can consider whether a cognizable offence has been committed warranting investigation.

The Supreme Court in Sheikh Ishaque and Others Vs State of Bihar [(1995) 3 SCC 392], Gulabi Paswan gave a cryptic information at the police station to the effect that there was a commotion at the village as firing and brick batting was going on and this Court held that this cryptic information did not even disclose the commission of a cognizable offence nor did it disclose who were the assailants and such a cryptic statement of Gulabi Paswan cannot be treated to be an FIR within the meaning of section 154 Cr.P.C.

The Hon’ble Supreme Court in Anand Mohan Vs State of Bihar19 held “In our consideration opinion, therefore, the trial court and the High Court have rightly treated the subsequent typed written information lodged by PW-14 and not the wireless message as the FIR”.

Prepared by: S. Hemanth

Advocate at Hemanth & Associates

DEPOSIT AMOUNT CAN BE FORFEITED AND NOT THE AMOUNT PAID TOWARDS PART PAYMENT OF THE SALE CONSIDERATION - SUPREME COURT RULING

Whether the seller is entitled to forfeit the entire deposit amount where the sale of an immovable property falls through by reason of the fault or failure of the purchaser. HELD yes by the Apex Court.

Whether the seller is entitled to retain the entire amount received towards earnest money or not. The fact that the purchaser was at fault in not paying the balance consideration was also not disputed. The question whether the seller can retain the entire amount of earnest money depends upon the terms of the agreement. The Hon’ble Supreme Court of India in Satish Batra Vs Sudhir Rawal  observed:

“Law is, therefore, clear that to justify the forfeiture of advance money being part of ‘earnest money’ the terms of the contract should be clear and explicit. Earnest money is paid or given at the time when the contract is entered into and, as a pledge for its due performance by the depositor to be forfeited in case of non-performance by the depositor. There can be converse situation also that if the seller fails to perform the contract  the purchaser can also get the double the amount, if it is so stipulated. It is also the law that party payment of purchase price cannot be forfeited unless it is a guarantee for the due performance of the contract. In other words, if the payment is made only towards part payment of consideration and not intended as earnest money then the forfeiture clause will not apply”.

In the above case, the Supreme Court held that the seller was justified in forfeiting the entire amount of Rs.7,00,000/- as per the relevant clause, since the earnest money was primarily a security for the due performance of the agreement and, consequently, the seller is entitled to forfeit the entire deposit. 

Prepared by: S. Hemanth

Advocate at Hemanth & Associates

CAN LEGAL PRACTITIONER BE HELD LIABLE FOR FALSE LEGAL OPINION

Can a legal practitioner be held  liable for a legal opinion provided by him? In a matter CBI charge sheeted a legal practitioner and a panel advocate for the Vijaya Bank, who was arrayed as Accused No.6. The duty of the panel advocate was to verify the documents and to give legal opinion. The allegation against him was that he gave a false legal opinion in respect of 10 housing loans. HELD no primafacie case against the practicing lawyer was concerned.

The Hon’ble Supreme Court of India in Central Bureau of Investigation, Hyderabad Vs K Narayana Rao17 observed:

In the banking sector in particular, rendering of legal opinion for granting of loans has become an important component of an advocate’s work. In the law of negligence, professionals such as lawyers, doctors, architects and others are included in the category of persons professing some special skills.

A lawyer does not tell his client that he shall win the case in all circumstances. A surgeon cannot guarantee that the result of surgery would invariably be beneficial, much less to the extent of 100% for the person operated on. The only assurance which such a professional can give or can be given by implication is that he is possessed of the requisite skill in that branch of profession which he is practicing and while understanding the performance of the task entrusted to him, he would be exercising his skill with reasonable competence. This is what the person approaching the professional can expect. Judged by this standard, a professional may be held liable for negligence on one of the two findings, viz., (1) either he was not possessed of the requisite skill which he professed to have possessed, or, (2) he did not exercise, with reasonable competence in the given case, the skill which he did possess.

In Jacob Mathew Vs State of Punjab & Anr.17a the court observed, to determine whether the person charged has been negligent or not, he has to be judged like an ordinary competent person exercising ordinary skill in that profession. It is not necessary for every professional to possess the highest level of expertise in that branch which he practices.

In Pandurang Dattatraya Khandekar Vs Bar Council of Maharashtra & Ors.17b the court laid, that there is a world of difference between the giving of improper legal advice and the giving of wrong legal advice. Mere negligence unaccompanied by any moral delinquency on the part of a legal practitioner in the exercise of his profession does not amount to professional misconduct.

Therefore the Supreme Court held that the liability against an opining advocate arises only when the lawyer was an active participant in a plan to defraud the Bank.

Prepared by: S. Hemanth

Advocate at Hemanth & Associates

GUIDELINES FROM SUPREME COURT WITH REGARD TO THE COURT POWER IN ISSUING NON-BAILABLE WARRANT

The Hon’ble Supreme Court in order to check or obviate the possibility of misuses of an arrest warrant, issued guidelines to be adopted in all cases where non-bailable warrants are issued by the Courts.

The Hon’ble Supreme Court in Raghuvansh Dewanchand Bhasin V State of Maharashtra.16 issued the following guidelines to be adopted in all cases where non-bailable warrants are issued by the Courts –

(a) All the High Court shall ensure that the Subordinate Courts use printed and machine numbered Form No.2 for issuing warrant of arrest and each such form is duly accounted for;

(b) Before authenticating, the Court must ensure that complete particulars of the case are mentioned on the warrant;

(c) The Presiding Judge of the Court (or responsible officer specially authorized for the purpose in case of High Courts) issuing the warrant should put his full and legible signatures on the process, also ensuring that Court seal bearing complete particulars of the Court is prominently endorsed thereon;

(d) The Court must ensure that warrant is directed to a particular police officer (or authority) and, unless intended to be open-ended, it must be returnable whether executed or unexecuted, on or before the date specified therein;

(e) Every Court must maintain a register (in the format given below), in which each warrant of arrest issued must be entered chronologically and the serial number of such entry reflected on the top right hand of the process;

(f) No warrant of arrest shall be issued without being entered in the register mentioned above and the concerned Court shall periodically check/monitor the same to confirm that every such process is always returned to the Court with due report and placed on the record of the concerned case;

(g) A register similar to the one in clause (e) supra shall be maintained at the concerned police station. The Station House Officer of the concerned Police Station shall ensure that each warrant of arrest issued by the Court, when received is duly entered in the said register and is formally entrusted to a responsible officer for execution;

(h) Ordinarily, the Courts should not give a long time for return or execution of warrants, as experience has shown that warrants are prone to misuse if they remain in control of executing agencies for long;

(i) On the date fixed for the return of the warrant, the Court must insist upon a compliance report on the action taken thereon by the Station House Officer of the concerned Police Station or the Officer In-charge of the concerned agency;

(j) The report on such warrants must be clear, cogent and legible and duly forwarded by a superior officer, so as to facilitate fixing of responsibility in case of misuse;

(k) In the event of warrant for execution beyond jurisdiction of the Court issuing it, procedure laid down in sections 78 and 79 of the code must be strictly and scrupulously followed; and

(l) In the event of cancellation of the arrest warrant by the Court, the order cancelling warrant shall be recorded in the case file and the register maintained. A copy thereof shall be sent to the concerned authority, requiring the process to be returned unexecuted forthwith. The date of receipt of the unexecuted warrant will be entered in the aforesaid registers. A copy of such order shall also be supplied to the accused.

Prepared by: S. Hemanth

Advocate at Hemanth & Associates