Railways – Additional Evidence

2014 STPL(Web) 1942 DELHI (DEL) - Additional evidence allowed

NEKSI DEVI AND OTHERS Vs. UNION OF INDIA

Railways Act, 1989 – Sections 123(c) and 124-A – Civil Procedure Code, 1908 – Order XLI, Rule 27 – Evidence Act, 1872 – Section 165 – Railways – Additional Evidence – Witnesses of IO and driver of goods carrier – Rejection of application to lead additional evidence of witnesses, is improper – Tribunal after recording evidence of I.O. in said case as a witness of appellants/claimants and driver of Vikram auto as a witness of Railways – Both parties also agree that this witness would be the best witness to depose with regard to accident in question as to whether accident is or is not an ‘untoward incident’ as per meaning of expression as found in Sections 123(c) and 124-A of the Railways Act – Exercised its powers under Section 165 of the Evidence Act, which permits every court to allow evidence to be brought in at any stage so that justice is not a casualty – Impugned judgments are set aside – Remanded back to Tribunal – Directed to Tribunal that appellants will be permitted to lead additional evidence – Appeals allowed.

MACT – Compensation

2014 STPL(Web) 1941 CALCUTTA (CAL)(DB) - Compensation enhanced

CHHAYA SARKAR Vs. BRANCH MANAGER, ORIENTAL INSURANCE CO. LTD.

Motor Vehicles Act, 1988 – Sections 163-A and 168 – MACT – Multiplier – Victim was a bachelor – Age of mother to be considered in choosing of multiplier – Multiplier reduced to 14 from 17 – Compensation enhanced – The Apex Court held that age of mother must have a dominant role for choice of multiplier – Mother is the only lawful claimant in case of death of a bachelor – Held that Trilok Chandra & Ors. still holds the field and no decision of the Apex Court is yet to overrule the same, either expressly or by implication – Contention, on that score, is thus rejected – Tribunal erroneously applied multiplier of 17 – Considering age of victim, it should be 17, inclined to reduce it to 14, since mother is sole dependant, usual deduction of 50% of income on account of personal expense is allowed – Impugned award is modified as awarded total balance compensation amount of Rs. 1,19,500/- would carry interest at rate of 6% per annum on – Appeal allowed.

Divorce – Cruelty – Desertion

2014 STPL(Web) 1940 P&H (P&H)(DB) - Divorce granted to husband

SHIKHA Vs. JASVINDER SINGH AND ANOTHER

Hindu Marriage Act, 1955, s.13 – Divorce – Cruelty – Desertion – Adultery – Divorce petition filed by husband was allowed by trial Court – Appeal thereagainst by wife – All allegations made by respondent No.1/husband regarding cruelty, desertion and adultery are admitted by appellant because no cross-examinations was conducted on those points – Perusal of judgment of trial Court shows that evidence was properly scrutinized and appreciated and each aspect was dealt with rightly – Evidence on record also shows that appellant/wife had filed petition u/s.125 Cr.P.C. claiming maintenance for herself and her son – In that petition as well, husband, i.e. respondent No.1, mentioned about adulterous life of appellant and Court came to conclusion from evidence led by parties that it was appellant who had willfully deserted her husband and, therefore, she had no right to claim maintenance – Held, there is no infirmity in order passed by trial Court – Appeal dismissed.

Divorce – Cruelty – Desertion

2014 STPL(Web) 1939 P&H (P&H)(DB) - Divorce granted to wife

JASVIR KAUR Vs. HARJINDER SINGH

Hindu Marriage Act, 1955, s.13(1)(i-a) & (i-b) – Divorce – Cruelty – Desertion – Divorce petition filed by wife dismissed by trial Court – Appeal there against – Appeal was heard ex parte against respondent/husband, who had refused to accept notice sent by appellate Court – It is, thus, clear that he is not bothered about result of appeal – He did not say before trial Court that he was willing to keep appellant as his wife nor he appeared before appellate Court to contest appeal – It seems that he has contested petition before trial Court just for sake of harassing appellant and without any intention to rehabilitate her – If he intended to live with his wife, he would have come forward to contest appeal as well – Held, judgment and decree passed by trial Court are reversed – Marriage between parties is dissolved by decree of divorce – Appeal allowed.

Appeal against acquittal – Dishonour of Cheque

2014 STPL(Web) 1938 AP (AP) - Appeal transferred to Session Court

PETTA SATYA GOVINDA RAMACHANDRA RAO Vs. YARLAGADDA VIJAYA KUMAR & ANR.

Code of Criminal Procedure, 1974 – Section 372 – Negotiable Instruments Act, 1881, Section 138 138, 144 – Appeal against acquittal – Transferred to Session Court – Complaint of dishonour of cheque resulted in acquittal – Appeal at High Court – Held: Complainant of a cheque case against acquittal is also within the meaning of the victim (as suffered loss of injury from such a dishonour -To maintain an appeal before the Court of Session (by a combined reading of Section 374 (3) read with the proviso to Section 372, Cr. P. C. with the wording the victim shall have a right to prefer an appeal – acquitting the accused, and such appeal shall lie to the Court to which an appeal ordinarily lies against the order of conviction of such court. Appeal directed to transferred to Session Court

Quashing of Complaint – Dishonour of Cheque

2014 STPL(Web) 1937 ALLAHABAD (ALL) - Complaint not quashed

MAHENDRA KUMAR SHUKLA Vs. STATE OF U. P. & ANR.

Negotiable Instruments Act (26 of 1881), S. 138, Proviso (b) — Evidence Act (1 of 1872) S. 114 — General Clauses Act (10 of 1897), S. 27 – Quash not allowed – Non mentioning of date of service of notice – Complaint of dishonour of cheque – Quash petition – Notice sent by registered post on correct address within limitation – Notice not accepted by accused – Presumption of service of notice available – Plea that complaint did not disclose any date of service of notice of no consequence. Accused can pay cheque amount within fifteen days of receiving summon. No quashing of complaint.

Murder – Conviction set aside

2014 STPL(Web) 1936 KARNATAKA (KAR)(DB) - Acquittal

DODDANAYAKA AND ORS. Vs. STATE BY NANJANGUD RURAL POLICE, BANGALORE

Indian Penal Code, 1860—Sections 498A and 302, 34 – Murder – Conviction set aside – Appeal against conviction – Conviction of husband, mother in law & brother in law set aside – Death by burn injuries – Most of the witness do not support prosecution case – Conviction mainly based on dying declaration – Dying declaration was recovered by police officer and later by Tahsildar – Doctor deposed that victims statement was recorded in his presence – Defence of committed suicide on ground of stomach ache remained un established – Brother in law not residing with them – Only husband and his mother were residing together in the houses – No cogent evidence if mother in law and brother in law were in the house at the time of incident to connect them with the crime – It would not be safe to convict them on basis of dying declaration – Conviction of mother in law & brother in law set aside while conviction of husband maintained.

Murder – Circumstantial Evidence

2014 STPL(Web) 1935 RAJASTHAN (RAJ)(DB) - Acquittal

PAPU SINGH @ PAPPI Vs. STATE OF RAJASTHAN

Indian Penal Code, 1860 – Section 302 – Murder – Circumstantial Evidence – Appeal against conviction – Appreciation of evidence -Held: We are not persuaded to uphold the conviction of the accused appellant, which is founded entirely on circumstantial evidence. The chain of circumstances against the accused/appellant has got several missing links. Neither different circumstances are individually established against the accused-appellant beyond reasonable doubt nor do they form a chain of circumstance so complete as to rule out every reasonable hypothesis that may be compatible with his innocence. The circumstances do not conclusively prove that it was only the accused/appellant and none-else, who could have committed the murder of deceased. Appeal allowed. Conviction set aside

Dowry death – Presumption

2014 STPL(Web) 772 SC (SC)(FB) - Judgment Date: 25-11-2014 - Conviction/Acquittal

JAGDISH & ORS. Vs. STATE OF UTTARANCHAL

Penal Code, 1860, Sections 304B, 498A and 201 – Evidence Act, 1872, Section 113B – Dowry death – Presumption – There is overwhelming evidence that there was demand of dowry and that ‘S’ was subjected to physical violence and cruelty – When the essential ingredient that the victim was subjected to cruelty or harassment in connection with demand for dowry ‘soon before her death’ is proved, presumption under Section 113B of the Evidence Act has to be invoked – Accused unable to rebut the presumption by adducing cogent evidence – In his statement under Section 313 Cr.P.C, late ‘C’ (husband of the deceased) stated that the death of ‘S’ was either an accident or suicide – The theory of accident put forth by the defence completely falls through since the accused hurriedly conducted the cremation without even waiting for the victim’s father and furthermore without lodging a complaint – Find no infirmity in the concurrent findings recorded by the Courts below in convicting the accused 2 and 3 for offence U/s 304B IPC.

Rent – Acquisition of alternative accommodation by the tenant

2014 STPL(Web) 771 SC (SC)(FB) - Judgment Date: 25-11-2014 - Provision applicable

SRI SIDHHARTH VIYAS & ANR. Vs. RAVI NATH MISRA & ORS.

Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, Section 12(3) – Deemed vacancy – Held that mere use of present tense in Section 12(3) is not intended to limit the applicability of the provision to acquisition of accommodation by the tenant after the Rent Act becomes applicable – In the context, the provision also covers the situation where the tenant has acquired alternative accommodation before the applicability of the Rent Act – The proviso clearly shows that the provision in question is not intended to be limited to a situation where alternative accommodation is acquired after the Act commences or becomes operative – The provision also covers a situation where the alternative accommodation is acquired prior to that – The scope of proviso is narrower than the main provision – The view taken by the High Court that acquisition of alternative accommodation by the tenant, prior to enforcement of the Act, is not covered by Section 12(3) of the Act held to be not correct in law.

Land acquisition – Lapse of proceedings

2014 STPL(Web) 770 SC (SC)(DB) - Judgment Date: 25-11-2014 - Land acquisition proceedings lapsed

SITA RAM Vs. STATE OF HARYANA & ANR.

Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013, Section 24(2) – Land acquisition proceedings – Lapse of proceedings – The Award was passed on 08.10.2003 and five years have elapsed long back and the compensation undisputedly was not paid within 5 years to the appellant – The conditions mentioned in Section 24(2) of the Act of 2013 are satisfied by the appellant for allowing the plea as stated by him that the land acquisition proceedings in respect of his acquired land and building must be deemed to have lapsed in terms of Section 24(2) of the Act of 2013.

Arbitration – Award

2014 STPL(Web) 769 SC (SC)(DB) - Judgment Date: 25-11-2014 - Award valid

ASSOCIATE BUILDERS Vs. DELHI DEVELOPMENT AUTHORITY

Arbitration and Conciliation Act, 1996, Section 34 – Arbitral award – Challenge as to – Errors of fact – Public policy – Judicial review – Rough and ready justice – Expression ‘Justice’ – The formula applied by the Division Bench was that it would itself do “rough and ready justice “and this cannot be done by any court under the jurisdiction exercised under Section 34 of the Arbitration Act -The expression “justice” when it comes to setting aside an award under the public policy ground can only mean that an award shocks the conscience of the court – It cannot possibly include what the court thinks is unjust on the facts of a case for which it then seeks to substitute its view for the Arbitrator’s view and does what it considers to be “justice” – The whole approach of the Division Bench of the High Court to setting aside arbitral awards held to be incorrect since it has lost sight of the fact that it is not a first appellate court and cannot interfere with errors of fact.

Modification of order – Maintainability of application

2014 STPL(Web) 768 SC (SC)(DB) - Judgment Date: 24-11-2014 - Application not maintainable

CALCUTTA PORT TRUST & ORS. Vs. ANADI KUMAR DAS (CAPT) & ANR.

Modification of order – Application for – Maintainability – Pension scheme – Option – Exercise of – Held that the application for seeking modification is not maintainable – However in the operative portion of the order of this Court dated 13.11.2013, the respondent is permitted to exercise the option of the pension scheme vide circular dated 19.02.1986 and further direction is given to the appellants that the needful be done within two months from the date of receipt of this order – The appellant – Calcutta Port Trust directed to pay 75% of the arrears of pension under the scheme, from 23.7.2001 till the date of judgment, to the applicant-respondent.

Service Law – Dismissal

2014 STPL(Web) 767 SC (SC)(DB) - Judgment Date: 24-11-2014 - Dismissal from service valid

HIGH COURT OF GUJARAT Vs. HITENDRA VRAJLAL ASHARA & ANR

Constitution of India, Article 226 – Gujarat Civil Services (Conduct) Rules, 1971 – Disciplinary proceedings – Against Judicial Officer – Punishment – Dismissal – Judicial review – Division Bench of the High Court has reappreciated the evidence acting as a court of appeal – On facts Court found that no procedural irregularity has been committed by the Enquiry Officer in the disciplinary proceedings as the same was conducted in accordance with Gujarat Civil Services (Conduct) Rules, 1971, and principles of natural justice -The enquiring authority had elaborately considered the charges leveled against the delinquent officer and rightly held to be proved – Enquiry Officer has rightly rendered the finding against the delinquent and same was accepted by the High Court and on its recommendation the order of dismissal was passed by the appointing authority and it is legally justified – Impugned judgment passed by the High Court setting aside the punishment order liable to be set aside.

Election – Cooperative societies – Delimitation of constituencies

2014 STPL(Web) 766 SC (SC)(DB) - Judgment Date: 19-11-2014 - Delimitation of constituencies valid

RAJKOT DISTT COOPERATIVE BANK LTD. Vs. STATE OF GUJARAT & ORS.

Gujarat Cooperative Societies Act of 1961, Section 14, 74-C – Gujarat Specified Co-operative Societies Election to Committee Rules of 1982, Rule 3-A(8) & (9) , 43 – Constitution of India, Article 13(2) and 243ZK – Election – Cooperative societies – Delimitation of constituencies – Held that the bye laws of any specified society under the provisions of the Co-operative Societies Act cannot be permitted to prevail over the statutory Rule 3-A (8) & (9) of the Rules – The moment the area of operation of any specified society exceeds one village, sub rule (8) would come into play, irrespective of the fact that whether members of such society constitute homogenous group or heterogeneous group – Sub rules (8) & (9) of Rule 3-A are applicable to the appellant society/Societies as the area of operation is more than one village and therefore the orders passed by the Collector for the delimitation of the constituency/constituencies cannot be said to be illegal -There will be no proper representation of the voters to their respective specified societies for electing representatives of their area which would materially affect the result of the election and the impugned provisions and Rules are legally justifiable – No relief can be granted in favour of the appellant-societies by setting aside the election notification and the prayer for setting aside the impugned judgment and orders – The respondents directed to hold the election to the specified societies as per sub rule (8) and (9) of Rule 3-A of the Rules as are applicable to them under the Gujarat Co-operative Societies Act after the delimitation of the constituency/constituencies of such societies are made by the Collector as stated under sub-rule (9) of Rule 3- A of the Rules.

Education – Shortage of lectures

2014 STPL(Web) 1934 P&H (P&H) - Withholding of result correct

SURENDER SINGH Vs. STATE OF HARYANA

Constitution of India, 1950 – Articles 14, 16 and 226 – Education – Shortage of lectures – Result withheld – Not eligible to take examinations due to shortage of lectures – Since both petitioners were short of attendance, therefore, respondent No. 3/College did not issue them roll numbers – But petitioners after downloading their roll numbers from internet, appeared in examination but at the time of preparation of result, when it was found that attendance certificate of petitioners was not sent by college, therefore, result of petitioners was declared as “R.L.E” – Petitioners have no case – Writ Petition dismissed.

Education – Reservation

2014 STPL(Web) 1933 P&H (P&H) - No reservation to petitioner

ARSHPREET KAUR Vs. STATE OF PUNJAB

Constitution of India, 1950 – Articles 14, 16 and 226 – Education – Reservation – Admission to MBBS/BDS Courses – Reservation for Terrorist Affected Persons – Applying the ratio of said decision in Gurkaran Singh’s case, first grievance of petitioners is accepted and it is held that 2% seats under Terrorist Affected Persons category would come to 7 seats instead of 6 seats – 2nd grievance of petitioners that petitioners, being children of Terrorist Affected Persons, would have a precedence over grandchildren of Terrorist Affected Persons – Not accepted – It is provided in prospectus itself that “reservation under category (vi)(a) shall be provided only in case of death of bread winner in such incidences” – There is no other Clause of such a nature in respect of Category Code-20 where persons affected by Terrorist action had to migrate from other parts of country to State of Punjab, as has been done by parents/grandparents of petitioners – Held that such a candidates whose grandfather has been killed in terrorists attack but their bread winner/father/guardian are alive, they would not get reservation – Not found any merit – Writ Petition dismissed.

Eviction petition – Grant of leave to defend

2014 STPL(Web) 1932 P&H (P&H) - Leave to defend granted

S. SURINDERJIT SINGH GHUMAN Vs. S. SUKHDEV SINGH

East Punjab Urban Rent Restriction Act, 1949, s.2(dd), 18A & 13B – Eviction petition – Grant of leave to defend – Validity – On 27.10.2010, mother of petitioner let out premises in dispute vide written lease deed though same was unregistered – In said lease deed, she had categorically declared that ‘she is sole and absolute owner’ of premises and further that ‘she had unfettered and unrestricted right to give on lease use of premises to lessee’ – Claim of petitioner that her mother had sold out 1/4th share in property to him and his brother vide a registered sale deed of 10.11.2000 is a transaction unknown to tenant – Held, even if such transaction of sale is considered, it is yet to be explained by petitioner as to how her mother had claimed herself to be absolute owner of property and why there was no disclosure that after death of her husband (who was original owner), she had become owner only of 1/4th share and that she had already parted with that share of her by sale in favour of her two sons including petitioner – Sweeping averments of petitioner that such lease by her mother on 27.10.2010 was on his behalf, itself is such a plea which raises triable issue requiring evidence – In view of privity of contract established by lease deed of 27.10.2010 between mother of petitioner and respondent-tenant, there are triable issues requiring evidence before Rent Controller – Grant of leave to defend proper – Petition dismissed.

Eviction petition – Specified landlord – Joint ownership

2014 STPL(Web) 1931 P&H (P&H) - Eviction allowed

JITENDER KUMAR Vs. R.S. VIRK AND OTHERS

Haryana Urban (Control of Rent and Eviction) Act, 1973, s.13A(1A) – Eviction petition – Specified landlord – Joint ownership – Premises had been given on tenancy by one of the co-owners is not in dispute – There is nothing to show that any of the other co-owners had raised any objection to eviction application preferred by landlord/co-owners/respondent – Held, merely because tenancy was not incepted by respondent-owner himself, is not a ground to question maintainability of petition filed at his instance – A co-owner is entitled to seek eviction of a building owned by him with other co-owners who may not be enjoying status of ‘specified landlord’ having right of invoking summary provisions of s.13-A of the Act – Only exception to this concept is that none of the remaining co-owners should have any objection to initiative undertaken by co-owner in terms of s.13 A(l A) of the Act – If there is no objection by other co-owners, one of co-owners is competent to file suit for eviction of tenant in property generally owned by co-owners – Eviction application filed by respondent-owner maintainable.

MACT – Bar on jurisdiction of Civil Courts

2014 STPL(Web) 1930 KERALA (KER) - Civil Court has no jurisdiction. Decree null & void

KERALA STATE ROAD TRANSPORT CORPORATION & ANOTHER Vs. REGHUNATHAN

Motor Vehicles Act, 1988 – Sections 175 and 165 – MACT – Bar on jurisdiction of Civil Courts -Damages sustained to vehicle arising out of motor vehicle accident – A decree without jurisdiction is a nullity – Decree is set aside – There is in fact a bar of jurisdiction for civil court to entertain any question relating to any claim for compensation which may be adjudicated upon by Claims Tribunal for that area and no injunction in respect of any action taken or to be taken by or before Claims Tribunal in respect of claim for compensation shall be granted by Civil Court – Held that decree of lower appellate court is liable to be reversed restoring decree of Trial Court thus dismissing suit although for reasons different – Civil Revision Petition allowed.

MACT – Murder by use of vehicle

2014 STPL(Web) 1929 P&H (P&H) - Award upheld

HASSAN MOHD. ALIAS CHOTE LAL Vs. RAHISAN AND ORS.

Motor Vehicles Act, 1988 – Section 163-A – MACT – Murder by use of vehicle – S. 163A does not make distinction between simple accident arising out of use of vehicle or felonious act in which motor vehicle is used to cause murder – Claim petition is maintainable – Award of Rs. 4,09,500/- as compensation is upheld – Found that Senior Superintendent of Police, had examined matter and finally ordered cancellation of case, it showed that it was not a case of murder – At least, police did not take it to be a case of murder – Deceased had been crushed under tractor of appellant/owner and it can safely be presumed that he died in an accident that occurred during use of tractor-trolley in question – Impugned finding that deceased died in an accident arising out of use of a motor vehicle is affirmed – Appeal dismissed.

Divorce – Cruelty

2014 STPL(Web) 1928 P&H (P&H)(DB) - Divorce granted

JASPAL SINGH Vs. KARAMJIT KAUR

Hindu Marriage Act, 1955, s.13(1)(i-a) & (i-b) and 25 – Divorce – Cruelty – Desertion – Permanent alimony – It is proved on record that conduct of respondent/wife was consistently bad and she kept pestering her husband for living separately from his family and also insulted him in presence of others – She also leveled false allegations against character of appellant/husband – Evidence on record also shows that appellant and his parents had intention of rehabilitating her but there was no outcome and presumption is that respondent had refused to live with appellant – She says that she had always been willing to live with her husband, but when husband and his family members went to bring her, she refused to accompany them – Appellant successfully established grounds of cruelty and desertion – Appellant entitled to decree of divorce – However, permanent alimony of Rs.10,000/- P.M. is fixed which appellant shall pay to respondent till her death or her re-marriage, whichever is earlier – Appeal allowed.

Will – Proof

2014 STPL(Web) 1927 P&H (P&H) - Will null and void

RANJIT KAUR THROUGH SUKHDEV SINGH ATTORNEY Vs. RAGHBIR SINGH AND OTHERS

Civil Procedure Code, 1908, s.100 – Succession Act, 1925, s.63(c) – Will – Proof – Held, in order to prove Will as valid document, beneficiary of Will has to prove that Will is attested by two or more witnesses, and further has to prove that each of whom has seen testator sign or affix his mark to Will or has seen some other person sign the Will, in presence and by direction of testator – Further, each of the witnesses shall sign Will in presence of testator, but it shall not be necessary that more than one witness was present at the same time – In present case, one of the attesting witnesses in his cross-examination has stated that Will was neither scribed in his presence nor testator put his signatures/thumb impression in his presence nor another witness had put his signatures/thumb impression in his presence – So, Will is not attested in accordance with s.63(c) of the Act – Apart from that, there is uneven space in Will – Scribe has stated that Will is in black ink whereas same is in a blue ink – Also a person of more than 100 years of age, i.e. testator, cannot give such minute details of khasra numbers – Presence of beneficiary added fuel to fire regarding execution of Will – Thus, concurrent finding of fact recorded by both Courts below that Will is surrounded by suspicious circumstances requires no interference – Appeal dismissed.

Dishonour of Cheque – Compounding

2014 STPL(Web) 1926 MADRAS (MAD) - Compounding allowed

D. SIMPSON Vs. S. T. PERUMAL

Negotiable Instruments Act (26 of 1881), Ss. 138, 147 – Compounding – Allowed – Complaint of dishonour of cheque resulted in conviction upto revision – Compromise between both parties – Amount received by complainant as full and final settlement – Joint compromise memo by both parties – Compounding allowed with Rs 25000/- cost to be paid to legal services authority.

Dishonour of cheque – Acquittal set aside

2014 STPL(Web) 1925 KARNATAKA (KAR) - Conviction

RAMAPPA S. S/O. NARAYAN Vs. VENKATARAMAN S/O. TIMMAPPA MOGER

Negotiable Instruments Act (26 of 1881), Ss. 138, 139 – Acquittal set aside – Presumption – Complaint of dishonour of cheque resulted in acquittal – Appeal against – Accused merely give some suggestions regarding his liability and misuse of cheque by complainant – All such suggestions are denied by witnesses – Such suggestions not prove the defence of accused – No convincing and cogent materials were produced by accused to rebut presumption under section 139 N I Act – Accused convicted.

Quashing of complaint – Domestic Violence

2014 STPL(Web) 1924 ALLAHABAD (ALL) - Complaint against petitioner quashed

GEETA & ORS. Vs. STATE OF U.P. & ANR.

Protection of Women from Domestic Violence Act, 2005 – Sections 12, 17, 18, 19, 20, 21, 22 – Quashing of complaint – Domestic Violence – Quash petition by sisters in law and brother in law – Held: Domestic relationship has been defined in Section 2(f) of the Act as domestic relationship between two persons who live or have at any point of time lived together in a shared house hold when they are related by consanguinity, marriage or through a relationship in the nature of marriage, adoption or are family members living together as a joint family. The complaint opens with the paragraph that the applicants who are her sister in law and brother in law are residing separately. There is no averment in the complaint that the applicants had any point of time either lived together with the opposite party No.2 in a shared household. Even otherwise the allegations of violence made by the opposite party No.2 against the applicants in the complaint are totally vague. No specific incident of domestic violence has been mentioned. Complaint abuse of process of law – Quashed against petitioners.

Quashing of complaint – Dishonour of cheque – Resigned

2014 STPL(Web) 1923 MP (MP) - Complaint not quashed

DEVESH @ DEVASHISH BANERJEE Vs. BHARAT TYRERS

Negotiable Instruments Act, 1881—Sections 138 and 142—Criminal Procedure Code, 1973—Section 482 – Quashing of complaint – Resigned – Complaint of dishonour of cheque – Cheque issued by Company – Vicarious liability – Quash petition Held: Petitioner was Director on the date on which cheques were issued but latter on resigned – Held: Looking to the allegation made in the complaint regarding role of the petitioner in assessing the liabilities and issuance of cheques along with other directors, he could not be exonerated on the ground that he has resigned later on from the post of directorship. No quashing of complaint.

Rape – Conviction set aside

2014 STPL(Web) 765 SC (SC)(DB) - Judgment Date: 21-11-2014 - Acquittal

MANOHARLAL Vs. STATE OF M.P.

Penal Code, 1860, Section 376 – Appeal against conviction – Rape – Testimony of prosecutrix – Corroboration – The sole testimony of the prosecutrix can sufficiently be relied upon to bring home the case against the accused -In the instant case version of prosecutrix found to be improbable and difficult to accept on its face value – The medical examination of the victim did not result in any definite opinion that she was subjected to rape- ‘R’ who was like a brother to the victim and thus a close confidant, has not supported the case of the prosecution and has completely denied having met her when she allegedly narrated the incident to him – The person who was suffering from fever and to whose house she was first taken by the appellant was not examined at all – The policeman who the victim met during the night was also not examined – Neither the brother nor any of the parents of the victim were examined to corroborate the version that she had come from the village of her brother and alighted around 10:00 P.M. at ‘B’ bus stand – Lastly, the sequence of events as narrated would show that she had allegedly accompanied the appellant to various places -Find extreme difficulty in relying upon the version of the victim alone to bring home the charge against the appellant and benefit of doubt given to the appellant.

Murder – Common intention

2014 STPL(Web) 764 SC (SC)(DB) - Judgment Date: 21-11-2014 - Conviction

NAIM AND ANOTHER Vs. STATE OF UTTARAKHAND

Penal Code, 1860, Section 302/34 – Murder – Appeal against conviction – Common intention – ‘K’ was armed with pharsa and ‘N’ was armed with a lathi – All three accused had entered the house of the deceased and the complainant at midnight in the company of ‘S’ who was also armed with a sharp cutting weapon – When three persons separately armed with weapons storm into the house of the victim in the dead of the night, merely because only one out of them uses the weapon and gives the fatal blow, would not absolve the others – The others may not be required to use their weapons but that by itself does not change the role of such other accused to that of a mere bye-stander – The circumstances can show that the others shared the same intention – In the instant case the common intention to bring about a definite result is evident from the circumstances on record – Additionally, the role of exhortation is also ascribed to the present appellants – Section 34 IPC is definitely attracted – High Court was completely justified in setting aside the order of acquittal as regards ‘K’ and ‘N’ which was perverse and unwarranted.

Income Tax – Search and Seizure

2014 STPL(Web) 763 SC (SC)(DB) - Judgment Date: 12-11-2014 - Quashing of search & seizure set aside. Remand Back

UNION OF INDIA & ORS. Vs. AGARWAL IRON INDUSTRIES

Income Tax Act, 1961, Section 132(1) – Search and seizure of premises – Undisclosed assets – The search and seizure is not confiscation – The articles that are seized are the subject of enquiry by the competent authority after affording an opportunity of being heard to the person whose custody it has been seized – The terms used are ‘reason to believe’ – Whether the competent authority had formed the opinion on the basis of any acceptable material or not the High Court has not even remotely tried to see the reasons –High Court has totally misdirected itself in quashing the search and seizure on the basis of the principles of non-traverse – High Court advised to peruse the file to see whether reasons have been recorded or not and whether the same meet the requirement of law – Impugned order passed by the High Court set aside the matter remanded to the High Court for fresh disposal in accordance with law – The revenue shall produce the file before the High Court, whereafter the High Court shall proceed to adjudicate the lis.

Service Law – Transfer

2014 STPL(Web) 1922 CALCUTTA (CAL) - Service Law – Transfer

SOUMYA DATTA Vs. STATE BANK OF INDIA

Constitution of India, 1950 – Article 226 – Service Law – Transfer of a bank employee – No government employee/officer can stay at a place/branch for an indefinite period – No merit in writ petition – Petitioner was sought to be moved out from local head office at Kolkata on completion of 3 years, which appears to be in consonance with clause 4.2 of model transfer policy – Just as an erroneous reference to a statutory provision does not vitiate any order if power is otherwise available in the statute, mere user of the word ‘transfer’ and not ‘posting’ in impugned order would not render it vulnerable having regard to clear terms of model transfer policy – Disinclined to hold having regard to said discussions that impugned order is actuated by mala fide of respondents 2 and 3 – Transfer orders issued by competent authority do not violate any of his legal rights – Writ Petition dismissed.

Education – Mercy chance

2014 STPL(Web) 1921 P&H (P&H) - Mercy chance to appear in exams not granted

RAHUL KAPOOR Vs. GURU RAVIDAS AYURVED UNIVERSITY

Constitution of India, 1950 – Articles 14, 16 and 226 – Education – Mercy chance – University decided not to grant mercy chance to a student who has got re-appear in two subjects – Same cannot be claimed as a matter of right – Except for Jaspreet Kaur and Amanpreet Kaur, no other student has been pointed out who has been given mercy chance to appear in examination despite fact that student had re-appear in two subjects – As a matter of fact, petitioner could not clear any subject in examination held in November/December 2011 – He was given two re-appear chances in May-June-2012 and November/December-2012 but still could not clear any of subject of BAMS 1st Prof – Thus, out of 10 papers, he could clear only 7 papers and now prayed for a mercy chance to appear in remaining 2 subjects which has been rightly declined by University maintaining consistency in their approach – Not found any merit – Writ Petition dismissed.

Evidence – Voice sample

2014 STPL(Web) 1920 P&H (P&H) - Application Premature

MOHINDER SINGH Vs. BALJIT SINGH

Evidence Act, 1872, s.23 – Evidence – Voice sample – Admissibility of conversation recorded in electronic media viz. tape-recorder – Points to be taken into consideration –Held, 1) Voice of speaker must be identified by maker of record or other persons recognizing his voice – Where maker is unable to identify voice, strict proof will be required to determine whether or not it was voice of alleged speaker – 2) Accuracy of tape-recorded statement must be proved by maker of record by satisfactory evidence; direct or circumstantial – 3) Possibility of tampering with, or erasure of any part of, tape-recorded statement must be totally excluded – 4) Tape-recorded statement must be relevant – 5) Recorded cassette must be sealed and must be kept in safe or official custody – 6) Voice of particular speaker must be clearly audible and must not be lost or distorted by other sounds or disturbances.

Eviction – Non-payment of rent

2014 STPL(Web) 1919 P&H (P&H) - Eviction not allowed

SANT PIARE LAL Vs. SAT PAUL

East Punjab Urban Rent Restriction Act, 1949, s.13 – Eviction – Non-payment of rent – Admission – Revision directed by petitioner-landlord against concurrent finding of dismissal of his eviction petition as well as appeal – Sole ground for eviction of tenant from shop in dispute was non-payment of rent w.e.f. 1.4.1991 @ Rs.550/- P.M. – There is neither rent note nor any written document which incorporates terms and conditions of tenancy – From objection petition preferred by landlord before municipal authorities, as well as other evidence on record, it clearly emerges that rate of rent was Rs. 250/- P.M. – Petitioner-landlord had neither been able to establish rate of rent of premises in dispute being @ Rs.550/- P.M. nor has been able to prove that tenant was in arrears of rent w.e.f. 1.4.1991 – Held, findings of facts recorded concurrently by Rent Controller as also by Appellate Authority qua rate of rent as also qua period of arrears of rent, do not call for any interference – Impugned orders of authorities below upheld – Petition dismissed.

Compensation – Non-consideration of disability

2014 STPL(Web) 1918 AP (AP) - Compensation enhanced

MADIRI SAILOO Vs. GOPI NARESH AND ANR.

Motor Vehicles Act, 1988 – Sections 166 and 168 – MACT – Non-consideration of disability – Awarded amount is not just and reasonable – Compensation enhanced but reduced the rate of interest – Held that impugned awarded is utterly low and unjust, thereby this Court by taking all aspects into consideration i.e. nature of injuries and period of treatment, medical expenditure, pain and sufferance, loss of earnings, attendant charges and transport charges during treatment, enhanced by awarding just compensation – Impugned award is modified on quantum of compensation by enhancing the same from Rs. 3,000/- to Rs. 35,000/- with interest at 6 ½ % per annum – Appeal partly allowed.

MACT – Driving Licence – Third party claim

2014 STPL(Web) 1917 AP (AP) - Insurer liable

GOLAKOTI DURGA Vs. DODDAPANENI KEDARNADH

Motor Vehicles Act, 1988 – Sections 166, 168 and 171 – MACT – Just and Reasonable Compensation – A guess work has to be made – Compensation enhanced – Held that compensation awarded by Tribunal does not become just compensation merely because Tribunal considered it to be just – ‘Just compensation’ is an adequate compensation which is fair and equitable, on facts and circumstances of case, to make good the loss suffered as a result of wrong, as far as money can do so, by applying well settled principles relating to award of compensation – Deceased was aged about 38 years as per inquest and post mortem reports and for age of the person about 36 to 40 years, multiplier applicable is 15 applicable and thus multiplier adopted by Tribunal of 16 is not correct – By taking said amount at Rs. 3,000/- per month without taking any prospective and future earning capacity of deceased by escalation of 30% and by not giving any additional amount towards love, care and guidance as sons and daughters who are aged more than 15 years; it comes to more than claim of Rs. 4,00,000/- It can be awarded as just compensation – Discretionary power to award reasonable rate of interest from drastic fall in bank rate of interest in bank rate under Section 171 of the MV Act is awarded at 7 1/2% per annum – Impugned compensation is enhanced from Rs. 3,00,000/- to Rs. 4,00,000/- Appeal allowed.

Quashing of Complaint – Domestic violence

2014 STPL(Web) 1916 P&H (P&H) - Complaint against petitioners quashed

ANOOP AND OTHERS Vs. VANI SHREE

Protection of Women from Domestic Violence Act, 2005, s.12 and 18 – Criminal Procedure Code, 1973, s.482 – Domestic violence – Quashing of proceedings – Petitioners No.1, 3 and 5 are uncles of husband of respondent, petitioners No.2, 4 and 6 are respective wives of petitioners No.1, 3 and 5 whereas respondent No.7 is son of petitioner No.1, petitioner No.8 is son of petitioner No.3 and petitioner No.9 is married daughter of petitioner No.1 – There is no categorical evidence on record nor are averments in complaint from which it can be inferred that petitioners are residing with husband of complainant/respondent and in any way part of shared house – Held, petitioners are not members of intra-family of husband of complainant rather are members of extended family related to father of husband of complainant, who are not in anyway residing in shared household – Even no specific allegations have been leveled against petitioners, only their names have been mentioned in complaint and allegations are general in nature – Thus, complaint against petitioners is clearly an abuse of process of law – Complaint and notice vide which petitioners have been summoned are quashed qua petitioners only – Petition allowed.

Divorce – Cruelty

2014 STPL(Web) 1915 P&H (P&H) - Divorce granted

POOJA Vs. MADAN LAL

Hindu Marriage Act, 1955, s.13(1)(i-a) – Divorce – Cruelty – Proof – Averments regarding appellant/wife being inflicted with merciless beating and being kept hungry have not been denied by respondent/husband – There is evidence and material on record to establish that appellant was inflicted with beating by respondent – Therefore, there is material on record otherwise than that of mere evasive denial that respondent used to beat appellant which certainly amounts to cruelty – Respondent has also in deceitful manner got his son from her; besides, respondent has leveled allegations that appellant is living with undesirable persons and whenever he approaches police and makes complaints, she changes her residence – These allegations are without any substance and it is not mentioned as to which residence appellant has changed; besides, who were persons that were coming to her – This by itself is sufficient ground to hold that respondent has treated appellant with cruelty – Held, it cannot be said that respondent has not treated appellant with cruelty – Appellant entitled to decree of divorce – Appeal allowed.

Dishonour of Cheque – Territorial Jurisdiction – Notice

2014 STPL(Web) 1914 BOMBAY (BOM) - Place of notice not confirm territorial jurisdiction

DEEPAK RAVIKANT NAGAR AND ORS. Vs. STATE OF MAHARASHTRA AND ANR.

Negotiable Instruments Act (26 of 1881), S. 138 – Territorial Jurisdiction – Notice – Complaint of dishonour of cheque – Transaction in question took place in Madhya Pradesh – Cheques were deposited for encashment in a bank at Madhya Pradesh –Held: Merely because statutory notice was sent from Dhule, Maharashtra, Court at Dhule would not get jurisdiction to entertain complaints.

Quashing of Complaint – Dishonour of cheque – Evidence on affidavit

2014 STPL(Web) 1913 ALLAHABAD (ALL) - Complaint not quashed

RAJ SINGH Vs. STATE OF U.P. & ANOTHER

Negotiable Instruments Act (26 of 1881), Ss. 138, 145 — Criminal P. C. (2 of 1974), Ss. 190, 204 Quash not allowed – Evidence on affidavit – Complaint of dishonour of cheque – Quash petition – Held: In the instant case even though the complainant may have made a prayer for prosecution of the accused for offences punishable under Sections 406 and 420, IPC apart from the one punishable under Section 138 of the N.I. Act, the Court found commission of offence punishable under section 138 of the N.I. Act only. As is clear from the fact that summons were issued under Section 138 of the N.I. Act only. In the circumstances, by virtue of section 145 of the N.I. Act, the Court was empowered to take complainant’s evidence on affidavit. Accordingly, the issuance of process, by relying on complainant’s affidavit, cannot be faulted.

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