Monthly Archives: May 2014

Evidence – Meaning of

According to Tomlin’s Law Dictionary, Evidence is “the means from which an inference may logically be drawn as to the existence of a fact. It consists of proof by testimony of witnesses, on oath; or by writing or records.” Bentham defines ‘evidence’ as “any matter of fact, the effect, tendency or design of which presented to mind, is to produce in the mind a persuasion concerning the existence of some other matter of fact – a persuasion either affirmative or disaffirmative of it’s existence. Of the two facts so connected, the latter may be distinguished as the principal fact, and the former as the evidentiary fact.” According to Wigmore on Evidence, evidence represents “any knowable fact or group of facts, not a legal or a logical principle, considered with a view to its being offered before a Legal Tribunal for the purpose of producing a persuasion, positive or negative, on the part of the Tribunal, as to the truth of a proposition, not of law, or of logic, on which the determination of the Tribunal is to be asked.” Hardeep Singh v. State of Punjab, 2014 (85) ACC 313.

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Denial of Fair Trial – Is Injustice to the Accused

Fair Trial is the main object of criminal procedure and such fairness should not be hampered or threatened in any manner. Fair Trial entails the interests of the accused, the victim and of the Society. Thus, fair trial must be accorded to every accused in the spirit of the right to life and personal liberty and the accused must get free and fair, just and reasonable trial on the charge imputed in a criminal case. Any breach or violation of public rights and duties adversely affects the community as a whole and it becomes harmful to the society in general. In all circumstances, the courts have a duty to maintain public confidence in the administration of justice and such duty is to vindicate and uphold the “majesty of the law” and the courts cannot turn a blind eye to vexatious or oppressive conduct that occurs in relation to criminal proceedings.
Denail of a fair trial is as much injustice to the accused as is to the victim and the society. Since the object of the trial is to mete out justice and to convict the guilty and protect the innocent, the trial should be a search for the truth and not a bout over technicalities and must be conducted under such rules as will protect the innocent and punish the guilty. Justice should not only be done but seen to have been done. Therefore, free and fair trial is a sine qua non of Article 21 of the Constitution. Right to get a fair trial is not only a basic fundamental right but a human right also. Therefore, any hindrance in a fair trial could be violative of Article 14 of the Constitution. “No trial can be allowed to prolong indefinitely due to the lethargy of the prosecuting agency or the State Machinery and that is the raison d’etre in prescribing the time frame” for conclusion of the trial.
Article 12 of the Universal Declaration of Human Rights provides for the right to a fair trial what is enshrined in Article 21 of our Constitution. Therefore, fair trial is the heart of criminal jurisprudence and, in a way, An important facet of a democratic polity and is governed by the rule of law. Denial of fair trial is crucifixion of human rights. J. Jayalalithaa and others v. State of Karnataka, (2014) 2 SCC 401.

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False Documents

An analysis of Section 464 of the Penal Code shows that it divides false documents into three categories:
(1) The first is where a person dishonestly or fraudulently makes or executes a document with the intention of causing it to be believed that such document was made or executed by some other person, or by the authority of some other person, by whom or by whose authority he knows it was not made or executed.
(2) The second is where a person dishonestly or fraudulently, by cancellation or otherwise, alters a document in any material part, without lawful authority, after it has been made or executed by either himself or any other person.
(3) The third is where a person dishonestly or fraudulently causes any person to sign, execute or alter a document knowing that such person could not by reason of (a) unsoundness of mind; or (b) intoxication; or (c) deception practiced upon him, know the contents of the document or the nature of the alteration.
In short, a person is said to have made a ‘false document’. If (i) he made or executed a document claiming to be someone else or authorized by someone else; or (ii) he altered or tampered a document; or (iii) he obtained a document by practicing deception, or from a person not in control of his senses. Ajay Narayan Ram v. State of U.P., 2014 (84) ACC 479.

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Offence of Dishonour of Cheque – Ingredients of

A bare perusal of Section 138 of Negotiable Instruments Act shows that to constitute an offence thereunder, following ingredients must be satisfied:
(a) A person must have drawn a cheque on an account maintained by him in a bank.
(b) It must be for payment of certain amount of money to any person out of his account.
(c) The cheque should have been drawn for discharge of any debt or any liability in whole or in part.
(d) The cheque has been presented to Bank within a period of six months from the date on which it was drawn or within a period of it’s validity, whichever is earlier.
(e) The cheque is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement with the bank.
(f) The payee or the holder in due course makes a demand for payment of said amount of money which remained unpaid due to return of cheque by the bank by giving a notice in writing to the drawer
(g) The notive must have been given within thrity days of the receipt of the information from the bank regarding return of the cheque as unpaid.
(h) The drawer of such cheque fails to make payment of aforesaid money to the payee or the holder within 15 days of the receipt of the said notice. Mahipal Singh v. State of U.P., 2014 (84) ACC 462.

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Filed under Dishonour of Cheque, Negotiable Instruments Act