Monthly Archives: January 2015

Registration of a case – Reasonableness and Credibility of Information

The reasonableness and credibility of the information is not a condition precedent to the registration of a case. The import of casting a mandatory obligation on the Officer-in-Charge of a police station to record information relating to the commission of a cognizable offence and to register a case thereon, has been emphasized in the decisions of the Hon’ble Supreme Court in State of Haryana v. Bhajan Lal, 1991 (28) ACC 111 (SC) and in Prakash Singh Badal v. State of Punjab, (2007) 1 SCC 1. At the same time arrest of an accused immediately on the registration of an FIR has been held not to be mandatory. The Criminal Procedure code confers a power upon the police to close a matter both before and after the investigation. A police officer can foreclose an FIR before an investigation under Section 157, if appears to him that there is no sufficient ground to investigate it. The police officer is empowered also to investigate the matter and file a final report under Section 173. In Lalita Kumari v.Government of Uttar Pradesh, 2014 (84) ACC 719 (SC), it was held that the police is not liable to launch an investigation in every FIR which is mandatorily registered on receiving information relating to the commission of a cognizable offence. The scheme of the Code not only ensures that the time of the police should not be wasted on false and frivolous information but also that the police should not intentionally refrain from doing its duty of investigating cognizable offences. Jagannath Verma v. State of U.P., 2015 (88) ACC 1 (FB).

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Dishonour of Cheque – “Debt or Other Liability”

The Explanation appended to Section 138 of the Negotiable Instruments Act, 1881 explains the meaning of the expression “debt or other liability” for the purpose of Section 138. This expression means a legally enforceable debt or other liability. Section 138 treats dishonoured cheque as an offence, if the cheque has been issued in discharge of any debt or other liability. The Explanation leaves no manner of doubt that to attract an offence under Section 138, there should be a legally enforceable debt or other liability subsisting on the date of the drawal of the cheque. In other words, drawal of the cheque in discharge of an existing or past adjudicated liability is sine qua non for bringing an offence under Section 138. If a cheque is issued as an advance payment for purchase of the goods and for any reason purchase order is not carried to its logical conclusion either because of its cancellation or otherwise, and material or goods for which purchase order was placed is not supplied, the cheque cannot be held to have been drawn for an existing debt or liability. The payment by cheque cannot be held to have been drawn for an existing debt or liability. The payment by cheque in the nature of advance payment indicates that at the time of drawal of cheque, there was no existing liability.
In Swastik Coaters (P) Ltd. v. Deepak Brothers, 1997 Cri LJ 1942 it was held as under:
“Explanation to Section 138 of the Negotiable Instruments Act clearly makes it clear that the cheque shall be relatable to an enforceable debt or liability and as on the date of the issuing of the cheque there was no existing liability in the sense that the title in the property had not passed on to the accused since the goods were not delivered.”
In Balaji Seafoods Exports (India) Ltd. v. Mac Industries Ltd., (1999) 1 CTC 6, it was held:
“Section 138 of the Negotiable Instruments Act makes it clear that where the cheque drawn by a person on account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, 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 arrangement made with that bank, such person shall be deemed to have committed an offence under section 138 of the Act. The Explanation reads that for the purposes of this section, ‘debt or other liability’ means a legally enforceable debt or liability.”
In Magnum Avaition (P) Ltd. v. State, (2010) 172 DLT 91, it was held:
“The purpose of making or enabling Section 138 of the Negotiable Instruments Act was to enhance the acceptability of cheque in settlement of commercial transactions, to infuse trust into commercial transactions and to make a cheque as a reliable negotiable instrument and to see that the cheques of business transactions are not dishonoured. The purpose of Negotiable Instruments Act is to make an orderly statement of rules of law relating to negotiable instruments and to ensure that mercantile instruments should be equated with goods passing from one hand to other. The sole purpose of the Act would stand defeated if after placing order and giving advance payments, the stop payments are issued and orders are cancelled on the ground of pricing.
But, if a cheque is issued as an advance payment for purchase of the goods and for any reason whatsoever purchase order is not carried to its logical conclusion either because of its cancellation or otherwise and material or goods for which purchase order was placed is not supplied by the supplier, the cheque cannot be said to have been drawn for an existing debt or liability. Indus Airways (P) Ltd. v. Magnum Aviation (P) Ltd., (2014) 12 SCC 539.

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Determination of Paternity—D.N.A. Test

In Bhabani Prasad Jena v. Convenor Secretary, Orissa State Commission for Women, (2010) 8 SCC 633, the court held as under:
“In a matter where paternity of a child is in issue before the court, the use of D.N.A. test is an extremely delicate and sensitive aspect. One view is that when modern science gives the means of ascertaining the paternity of a child, there should not be any hesitation to use those means whenever the occasion requires. The other view is that the court must be reluctant in the use of such scientific advances and tools which result in invasion of right to privacy of an individual and may not only be prejudicial to the rights of the parties but may have devastating effect on the child. Sometimes the result of such scientific test may bastardise an innocent child even though his mother and her spouse were living together during the time of conception.
When there is apparent conflict between the right to privacy of a person not to submit himself forcibly to medical examination and duty of the court to reach the truth, the court must exercise its discretion only after balancing the interests of the parties and on due consideration whether for a just decision in the matter, D.N.A. test is eminently needed. D.N.A. test in a matter relating to paternity of a child should not be directed by the court as a matter of course or in a routine manner, whenever such a request is made. The court has to consider diverse aspects including presumption under Section 112 of the Evidence Act: pros and cons of such order and the test of “eminent need” whether it is not possible for the court to reach the truth without use of such test.
In Goutam Kundu v. State of West Bengal, (1993) 3 SCC 418, it has been laid down that courts in India cannot order blood test as a matter of course and such prayers cannot be granted to have roving inquiry: there must be strong prima facie case and the court must carefully examine as to what would be the consequence of ordering the blood test. In Sharda v. Dharmpal, (2003) 4 SCC 493, while concluding that a matrimonial court has power to order a person to undergo a medical test, it was reiterated that the court should exercise such a power if the applicant has a strong prima facie case and there is sufficient material before the court. Obviously, therefore, any order for D.N.A. test can be given by the court only if a strong prima facie case is made out for such a course. Dipanwita Roy v. Ronobroto Roy, 2014 (6) AWC 6073.

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Filed under Matrimonial Dispute, Paternity Test

Murder – Aggravating Circumstances and Mitigating Circumstances

In Bachan Singh v. State of Punjab, (1980) 2 SCC 684, the court referred to the decision in Furman v. Georgia, 33 L Ed 2d 346 : 408 US 238 and noted the suggestion about the aggravating and mitigating circumstances as under:
Aggravating Circumstances.— A court may, however, in the following cases impose the penalty of death in its discretion:
(a) If the murder has been committed after previous planning and involves extreme brutality; or
(b) If the murder involves exceptional depravity; or
(c) If the murder is of a member of any of the armed forces of the Union or of a member of any police force or of any public servant and was committed—
(i) While such member or public servant was on duty; or
(ii) In consequence of anything done or attempted to be done by such member or public servant in the lawful discharge of his duty as such member or public servant whether at the time of murder he was such member or public servant, as the case may be, or had ceased to be such member or public servant; or
(d) If the murder is of a person who had acted in the lawful discharge of his duty under Section 43 of the Code of Criminal Procedure, 1973, or who had rendered assistance to a Magistrate or a police officer demanding his aid or requiring his assistance under Section 37 and Section 129 of the Code of Criminal Procedure.”

Mitigating Circumstances.—In the exercise of its discretion, the court shall take into account the following circumstances:
(a) That the offence was committed under the influence of extreme mental or emotional disturbance.
(b) The age of the accused. If the accused is young or old, he shall not be sentenced to death.
(c) The probability that the accused would not commit criminal acts of violence as would constitute a continuing threat to society.
(d) The probability that the accused can be reformed and rehabilitated.
(e) That in the facts and circumstances of the case, the accused believed that he was morally justified in committing the offence.
(f) That the accused acted under the duress or domination of another person.
(g) That the condition of the accused showed that he was mentally defective and that the said defect impaired his capacity to appreciate the criminality of his conduct.” Vasanta Sampat Dupare v. State of Maharashtra, (2015) 1 SCC 253.

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Probate of a Will – Not Mandatory In Respect of Properties Situate In State of U.P.

Probate of a will is not necessary outside the presidency towns of Bengal, Bombay and Madras as has been held in Bhaiya Ji v. Jageshwar Dayal Bajpai, AIR 1978 All 268 and Smt. Pitmo v. Shyam Singh, 1978 (4) ALR 173. The said decisions hold that a probate is not required to be obtained by a Hindu in respect of a Will regarding immovable properties in territories other than Bengal, Bombay and Madras. Thus, probate of will is not mandatory in respect of a Will concerning properties situate in the State of U.P. Ramjas (Dead) through LRs v. Smt. Sunder Devi (Dead) and another, 2014 (125) RD 376.

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Filed under Civil Law, Probate of Will

Family Arrangement

In Appovier v. Ramasubba Aiyan, (1866) 11 MIA 75, Lord Westbury took a view that the partition covers both, a division of right and a division of property. This is also reiterated in Girja Bai v. Sadashiv Dhundiraj, (1916) 43 IA 151. When the members of undivided family agreed amongst themselves either with respect to a particular property or with reference to entire joint estate that it shall thenceforth be the subject of ownership in certain defined shares, then the character of undivided property and joint enjoyment is taken away from the subject matter so agreed to be dealt with, and in the estate, each member has thenceforth a definite and certain share which he may claim the right to receive and to enjoy in severalty although the property itself has not been actually severed and divided.
In Raghubir v. Moti, (1913) 35 All 41 PC and Anurago Kuer v. Darshan Raut, AIR 1938 PC 65, the partition by agreement was explained by observing, that, if there be a conversion of joint tenancy of an undivided family into a tenancy of common of the members of that undivided family, the undivided family becomes a divided family with reference to the property, i.e., subject to agreement and that is a separation in interest and in right, although not immediately followed by a de facto actual division of subject matter. This may, at any time, be claimed by virtue of the separate right. This was also held in Amrit Rao v. Mukundrao, (1919) 15 Nag LR 165.
The “family arrangements” also stand and enjoy same status. It is an agreement arrived by members of family, either by compromise doubtful or disputed rights, or by preserving a family property or by avoiding litigation for the peace and security of family or saving its honour. A severance of joint status may result , not only from an agreement between the parties but from any act or transaction which has the effect of defining their shares in the estate. Among all the coparceners, it has been held that an agreement between all of them is not essential so as to result in disruption of joint status though it is required for the actual division and distribution of property, held jointly. A definite and unambiguous indication of intention by one member to separate himself from family and to enjoy his share in severalty will amount to a division in status. Ram Bilas v. Raj Kumar, 2014 (125) RD 660.

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Misconduct of Arbitrator

If the Arbitrator decides the matter, which are excluded by the agreement, he commits a misconduct. It comprises a legal misconduct, which is completed if the Arbitrator on the face of the award arrives at an inconsistent conclusion even on his own finding or arrives at a decision by ignoring very material documents which throw abundant light on the controversy to help a just and fair decision. It is in this sense that the Arbitrator could misconduct the proceedings in a case. Further, an award could be set aside if it is improperly procured or is otherwise invalid. Misconduct means a legal misconduct in the judicial sense arising from some honest, erroneous, breach and neglect of duty and responsibility on the part of Arbitrator causing miscarriage of justice. U.P. State Sugar Corporation Ltd. v. M/s Lal and Kumar, 2014 (4) ESC 2168.

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