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.

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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