Monthly Archives: February 2015

Dowry Death – Summoning of Distant Relatives

In Kans Raj v. State of Punjab, (2000) 5 SCC 207, it was observed:
“A tendency has, however, developed for roping in all relations of the in-laws of the deceased wives in the matters of dowry deaths which, if not discouraged, is likely to affect the case of the prosecution even against the real culprits. In their over enthusiasm and anxiety to seek conviction for maximum people, the parents of the deceased have been found to be making efforts for involving other relations which ultimately weaken the case of the prosecution even against the real accused as appears to have happened in the instant case.”
The court has, thus, to be careful in summoning distant relatives without there being specific material. Only the husband, his parents or at best close family members may be expected to demand dowry or to harass the wife but not distant relations, unless there is tangible material to support allegations made against such distant relations. Mere naming of distant relations is not enough to summon them in absence of any specific role and material to support such role. Kailash Chandra Agrawal v. State of U.P., 2015 (88) ACC 602.

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Filed under Criminal Law, Dowry Death

Matrimonial Cruelty – Filing of a False Criminal Case

Filing of a criminal complaint by the wife against the husband and several members of his family under Section 498-A and 307of the Indian Penal Code amounts to cruelty. This nature of cruelty, in the wake of filing of a false criminal case by either of the spouses, has been discussed in detail in K. Srinivas Rao v. D.A. Deepa, (2013) 5 SCC 226, wherein it was held as under:
“Staying together under the same roof is not a precondition for mental cruelty. Spouse can cause mental cruelty by his or her conduct even while he or she is not staying under the same roof. In a given case, while staying away, a spouse can cause mental cruelty to the other spouse by sending vulgar and defamatory letters or notices or filing complaints containing indecent allegations or by initiating number of judicial proceedings making the other spouse’s life miserable.”
If a false criminal complaint is preferred by either spouse it would invariably and indubitably constitute matrimonial cruelty, such as would entitle the other spouse to claim a divorce. K. Srinivas v. K. Sunita, (2015) 1 AWC 80.

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Filed under Matrimonial Cruelty, Matrimonial Dispute

Lien – Meaning Of

In Triveni Shankar Saxena v. State of U.P., 1992 Supp (1) SCC 524, the Hon’ble Supreme Court held as follows: “The word ‘lien’ originally means binding from the latin ligamen. Its lexical meaning is ‘right to retain’. The word ‘lien’ is now variously described and used under different contexts such as ‘contractual lien’, ‘equitable lien’, ‘specific lien’, ‘general lien’, ‘partners lien’, etc. In Halsbury’s Laws of England, (4th Edition, Vol. 28 at p. 221, para 502) it is stated: “502. Legal Lien.—In its primary or legal sense “lien” means a right at common law in one man to retain that which is rightfully and continuously in his possession belonging to another until the present and accrued claims [of the person in possession] are satisfied.” Similarly in, K. Saradambal v. Jagannath and Brothers, (1972) 42 Comp Cas 359 (Mad), it was held: “A legal lien differs from a mortgage and pledge in being an unassignable personal right which subsists only so long as possession of the goods subsists. A mortgage is an assignable right in the property charged and does not depend on possession. A pawn or pledge gives a special assignable interest in the property to the pawnee . A lien is, however, included in the definition of mortgage in the Law of Property Act, 1925. Where an equitable mortgage is created by deposit of title deeds, the mortgagee has a legal lien on the deeds deposited.’ The word lien is defined in the Law Lexicon by P. Ramanatha Iyer as: “A lien may be defined to be a charge on property for the payment of a debt or duty, and for which it may be sold in discharge of the lien. A lien, in a limited and technical sense, signifies the right by which a person in possession of personal property holds and retains it against the owner in satisfaction of a demand due to the party retaining it; but in its more extensive meaning and common acceptation it is understood and used to denote a legal claim or charge on property, either real or personal, As security for the payment of some debt or obligation; it is not strictly a right in or right to the thing itself but more properly constitutes a charge or security thereon.’ The word ‘lien’ is defined in Stroud’s Judicial Dictionary, 3rd Edition, at p. 1644 as: “A lien.—(without effecting a transference of the property in a thing)-is the right to retain possession of a thing until a claim be satisfied; and it is either particular or general.’ Bombay Stock Exchange v. V.S. Kandalgaonkar, (2015) 2 SCC 1.

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Filed under Civil Law

Stop Payment Instructions – Burden of Proof

In MMTC Ltd. v. Medchl Chemicals and Pharma (P) Ltd., (2002) 1 SCC 234, it was held as under:
“Even when the cheque is dishonoured by reason of stop-payment instructions by virtue of Section 139 of the Negotiable Instruments Act, the court has to presume that the cheque was received by the holder for the discharge, in whole or in part, of any debt or liability. Of course this is a rebuttable presumption. The accused can thus show that the “stop-payment” instructions were not issued because of insufficiency or paucity of funds. If the accused shows that in his account there were sufficient funds to clear the amount of the cheque at the time of presentation of the cheque for encashment at the drawer bank and that the stop payment notice had been issued because of other valid causes including that there was no existing debt or liability at the time of presentation of cheque for encashment, then offence under Section 138 would not be made out. The important thing is that the burden of so proving would be on the accused. A court cannot quash the complaint on this ground.” Pulsive Technologies Private Limited v. State of Gujarat, (2014) 13 SCC 18.

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Filed under Negotiable Instruments Act, Stop Payment

Interest – Concept of

In the case of Hello Mineral Water (P) Ltd. v. Union of India, 2004 (174) ELT 422, a Division Bench of the court explained the concept of interest as under:
“Interest is normal accretion on capital.
If on facts of a case, the doctrine of restitution is attracted, interest is often the normal relief. Restitution in its etymological sense means restoring to a party on the modification, variation or reversal of a decree or order what has been lost to him in execution of decree or order of the court or in direct consequence of a decree or order. The term “restitution” is used in three senses, firstly, return or restoration of some specific thing to its rightful owner or status, secondly, the compensation for benefits derived from wrong done to another and, thirdly, compensation for the loss caused to another. Reference in this regard may be had to the Judgment of the Hon’ble Supreme Court in the case of South Eastern Coal Fields Ltd. v. State of M.P., (2003) 8 SCC 648.
In Hari Chand v. State of U.P., 2012 (1) AWC 316, the Court dealing with a stamp matter held that the payment of interest is a necessary corollary to the retention of the money to be returned under order of the appellate or revisional authority.
Thus, the concept of interest is that when a person is deprived of the use of his money, to which, he is legitimately entitled, he has a right to be compensated for the deprivation, which may be called interest or compensation. Interest is paid for the deprivation of the use of money in general terms, which is return or compensation for the use or retention by a person of a sum of money belonging to another. It is a consideration paid either for the use of money or for forbearance of the money. In this sense, it is a compensation allowed by law or fixed by parties, or permitted by custom or usage for use of money belonging to another or for the delay in paying money after it has become payable. Delayed payment normally attracts interest. Ansal Housing and Construction Ltd. v. State of U.P., 2015 (108) ALR 22.

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Filed under Commercial Law, Interest