Monthly Archives: June 2013

Dishonour of Cheque – Second or Successive Default in Payment

Applying the rules of interpretation and the provisions of Section 138, Negotiable Instrument Act the Court held that there was no hesitation in holding that a prosecution based on second or successive default in payment of cheque amount should not be impermissible simply because no prosecution based on the first default which was followed by a statutory notice and a failure to pay had not been launched. If the entire purpose underlying Section 138 of the Negotiable Instruments Act is to compel the drawers to honour their commitments made in the course of their business or other affairs, there is no reason why a person who has issued a cheque which is dishonoured and who fails to make payment despite statutory notice served upon him should be immune to prosecution simply because the holder of the cheque has not rushed to the court with a complaint based on such default or simply because the drawer has made the holder defer prosecution promising to make arrangements for funds or for any other similar reason. There is in our opinion no real or qualitative difference between a case where default is committed and prosecution immediately launched and another where the prosecution is deferred till the cheque presented again gets dishonoured for the second or successive time. MSR Leathers v. S. Palaniappan and another, (2013) 1 SCC 177.

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Filed under Negotiable Instruments Act, Second Default

Sale and Ownership

The word ‘sale’ has been defined under Section 54 of the Transfer of Property Act. The definition says that sale is a transfer of ownership in exchange for a price paid or promised or part-paid and part-promised.
Ownership is defined as the relation between a person and an object forming the subject matter of his ownership. It consists in a complex of rights, all of which are right in rem, being good against all the world and not merely against specific person. Owner will have a right to possess the thing which he owns. He may not necessarily have possession of the property or he may have been wrongly deprived of it or may have voluntarily divested himself of it. The owner normally has the right to use and enjoy the thing and right to manage it, i.e. the right to decide how it shall be used. Whereas the right to possession is a right in the strict sense. The position of an owner differs from that of a non-owner in possession in that the latter’s interest is subject to be determined at some future set point. Lastly, the ownership has a residuary character. He might have divested his position by creating lease or mortgage, still his ownership would consist of residuary rights, i.e. the right which remains when all these lesser rights have been given away. Shanti Bhushan v. State of U.P., 2013 (3) AWC 2700.

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Filed under Civil Law, Ownership

Two FIR’s – Not permissible in respect of one and the same incident

The lodgment of two FIR’s is not permissible in respect of one and the same incident. The concept of sameness has been given a restricted meaning. It does not encompass filing of a counter-FIR relating to the same or connected cognizable offence. What is prohibited is any further complaint by the same complainant and others against the same accused subsequent to the registration of the case under the Code, for an investigation in that regard would have already commenced and allowing registration of further complaint would amount to an improvement of the facts mentioned in the original complaint. As is further made clear by the three-Judge Bench in Upkar Singh v. Ved Prakash, (2004) 13 SCC 292, the prohibition does not cover the allegations made by the accused in the First FIR alleging a different version of the same incident. Thus, rival versions in respect of the same incident do take different shapes and in that event, lodgment of two FIR’s is permissible. Surender Kaushik v. State of U.P., (2013) 5 SCC 148.

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Filed under Criminal Law, FIR

Will and Gift/Settlement – Difference Between

Will is an instrument whereunder a person makes a disposition of his properties to take effect after his death and which is in its own nature ambulatory and revocable during his lifetime. It has three essentials:
(1) It must be a legal declaration of the testator’s intention;
(2) That declaration must be with respect to his property; and
(3) The desire of the testator that the said declaration should be effectuated after his death.
The essential quality of a testamentary disposition is ambulatoriness of revocability during the executants lifetime. Such a document is dependent upon executants death for its vigour and effect.
Section 2(h) of the Indian Succession Act says “Will” means the legal declaration of the intention of a testator with respect to his property which he desires to be carried into effect after his death.
Gift/Settlement is the transfer of existing property made voluntarily and without consideration by one person called the donor to another called the done. Gift takes effect by a registered instrument signed by or on behalf of the donor and attested by at least two witnesses. Section 122 of the Transfer of Property Act defines the “gift” as a voluntary transfer of property in consideration of the natural love and affection to a living person. Mathai Samuel v. Eapen Eapen (Dead) by LRs and others, 2013 (118) RD 606.

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Filed under Civil Law, Succession