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Sec.138 N.I.Act - Power of attorney holder - scope & consideration of his evidence= a power of attorney holder is not a total substitute for his principal. He may depose about the acts which he has done and the facts which are to his knowledge. However, he cannot depose for the principal in support of the facts which are to the personal knowledge of principal alone. In such an instance the principal alone has to be examined. Now, in the instant case, the complaint was filed by the complainant represented by his SPA and complaint was signed by the complainant. Both the complainant and his SPA gave their sworn statements. The trial Court in its docket order dated 02.02.2005 permitted SPA to proceed with the case on behalf of complainant. Then, Ex.P1 would show that complainant authorised his SPA holder to prosecute the complaint and also to make statements on oath before any Court. Thus, PW1 authorised to give evidence also on behalf of complainant. The evidence of PW1 would show that he is none other than the son of complainants brother and he is having personal knowledge regarding business transactions with accused. He deposed that he sent cement bags on different occasions to the accused and he deposited the cheques issued by the accused in bank. Thus, when the evidence of PW1 is perused, besides being SPA, he is having personal knowledge on the facts concerning to this case. Accused has not brought on record any facts which are said to be in the exclusive knowledge of the complainant to draw an adverse inference for his non-examination. Therefore, the trial Courts observation in this regard cannot be approved.-2015 A.P.(2015) MSKLAWREPORTS

Sec.138 N.I.Act - Power of attorney holder - scope & consideration of his evidence=
a power of attorney holder is not a total
substitute for his principal. He may depose about the acts which he has done
and the facts which are to his knowledge. However, he cannot depose for the
principal in support of the facts which are to the personal knowledge of
principal alone. In such an instance the principal alone has to be examined.
Now, in the instant case, the complaint was filed by the complainant
represented by his SPA and complaint was signed by the complainant. Both  
the complainant and his SPA gave their sworn statements.  The trial Court in
its docket order dated 02.02.2005 permitted SPA to proceed with the case on
behalf of complainant. Then, Ex.P1 would show that complainant authorised
his SPA holder to prosecute the complaint and also to make statements on 
oath before any Court. Thus, PW1 authorised to give evidence also on behalf
of complainant. The evidence of PW1 would show that he is …

M.V.ACT - DRIVING LICENCE - LIABILITY OF INSURANCE COMPANY -though driver possessed licence for a different vehicle, the Insurance company could not establish that was the fundamental cause for accident and further the owner deliberately violated the terms of the policy.-2015 A.P.(2015)MSKLAWREPORTS

M.V.ACT - DRIVING LICENCE - LIABILITY OF INSURANCE COMPANY -though driver possessed licence for a different vehicle, the Insurance company could not establish that was the fundamental cause for accident and further the owner deliberately violated the terms of the policy.-2015 A.P.(2015)MSKLAWREPORTS

Unlike, in the cases of certain transactions, under the Transfer of Property Act, saving the rights of a purchaser, for consideration, without notice, is unknown to the process of execution under C.P.C. It makes little difference, whether or not the concerned person had the knowledge of attachment when he purchased the attached property.-2015 A.P.(2005)MSKLAWREPORTS

Unlike, in the cases of certain transactions, under the Transfer of Property Act, saving the rights of a purchaser, for consideration, without notice, is unknown to the process of execution under C.P.C. It makes little difference, whether or not the concerned person had the knowledge ofattachment when he purchased theattached property.-2015 A.P.(2005)MSKLAWREPORTS

Defences raised by the Petitioner company in the claim petitions purported to be in terms of Section 149(2)(a)(ii) of the Motor Vehicles Act, 1988 (hereinafter referred to as 'the Act') were : (a) driving licence produced by the driver or owner of the vehicle was a fake one; (b) driver did not have any licence whatsoever; (c) licence, although was granted to the concerned driver but on expiry thereof, the same had not been renewed; (d) licence granted to the drivers being for one class or description of vehicle but the vehicle involved in the accident was of different class or description; and (e) the vehicle in question was driven by a person having a learner's licence. -2015 S.C.(2004) MSKLAWREPORTS

SUMMARY OF FINDINGS : 
The summary of our findings to the various issues as raised in these
petitions are as follows:
(i)Chapter XI of the Motor Vehicles Act, 1988 providing compulsory
insurance of vehicles against third party risks is a social welfare
legislation to extend relief by compensation to victims of accidents
caused by use of motor vehicles.  The provisions of compulsory
insurance coverage of all vehicles are with this paramount object
and the provisions of the Act have to be so interpreted as to
effectuate the said object.
(ii)Insurer is entitled to raise a defence in a claim petition filed under
Section 163 A or Section 166 of the Motor Vehicles Act, 1988
inter alia in terms of Section 149(2)(a)(ii) of the said Act.
(iii)The breach of policy condition e.g., disqualification of driver or
invalid driving licence of the driver, as contained in sub-section
(2)(a)(ii) of section 149, have to be proved to have been committed
by the insured for avoiding liability by the insurer.

mutation in the revenue records in the name of one co-sharer would not amount to ouster unless there is a clear declaration that title of the other co-sharers was denied.In our view, the correct legal position is that possession of a property belonging to several co-sharers by one co-sharer shall be deemed that he possesses the property on behalf of the other co-sharers unless there has been a clear ouster by denying the title of other co-sharers .-2015 S.C.(2002) MSKLAWREPORTS

mutation in the revenue records in the name of one co-sharer would not amount to ouster unless there is a clear declaration that title of the other co-sharers was denied.In our view, the correct legal position is that possession of a property belonging to several co-sharers by one co-sharer shall be deemed that he possesses the property on behalf of the other co-sharers unless there has been a clear ouster by denying the title of other co-sharers .-2015 S.C.(2002) MSKLAWREPORTS

FINGER PRINT When there is no doubt that court can compare the disputed handwriting/signature/finger impression with the admitted handwriting/signature/finger impression, such comparison by court without the assistance of any expert, has always been considered to be hazardous and risky. When it is said that there is no bar to a court to compare the disputed finger impression with the admitted finger impression, it goes without saying that it can record an opinion or finding on such comparison, only after an analysis of the characteristics of the admitted finger impression and after verifying whether the same characteristics are found in the disputed finger impression. The comparison of the two thumb impressions cannot be casual or by a mere glance. Further, a finding in the judgment that there appeared to be no marked differences between the admitted thumb impression and disputed thumb impression, without anything more, cannot be accepted as a valid finding that the disputed signature is of the person who has put the admitted thumb impression. Where the court finds that the disputed finger impression and admitted thumb impression are clear and where the court is in a position to identify the characteristics of fingerprints, the court may record a finding on comparison, even in the absence of an expert's opinion. But where the disputed thumb impression is smudgy, vague or very light, the court should not hazard a guess by a casual perusal.- 2015 S.C.(2008) MSKLAWREPORTS

FINGER PRINT
When there is no doubt that court can compare the disputed handwriting/signature/finger impression with the admitted handwriting/signature/finger impression, such comparison by court without the assistance of any expert, has always been considered to be hazardous and risky. When it is said that there is no bar to a court to compare the disputed finger impression with the admitted finger impression, it goes without saying that it can record an opinion or finding on such comparison, only after an analysis of the characteristics of the admitted finger impression and after verifying whether the same characteristics are found in the disputed finger impression. The comparison of the two thumb impressions cannot be casual or by a mere glance. Further, a finding in the judgment that there appeared to be no marked differences between the admitted thumb impression and disputed thumb impression, without anything more, cannot be accepted as a valid finding that the disputed signature …

Suit for Recovery of money on Promissory Note - Execution of Promissory Note admitted by the First Defendant - Once execution is admitted, presumption would be that said Note was drawn for consideration, unless contrary is proved - Burden would be on Defendant to prove that Promissory Note is not supported by any consideration - However, issue framed by the Trial Court casting burden upon Plaintiff to prove passing of consideration - Held, said framing of erroneous issue leading to miscarriage of justice for 21 years - Order of Trial Court and the First Appellate Court ignoring presumption of law under section 118 of NI Act, patently erroneous, illegal and thus, set aside. - 2015 MAD(2012) MSKLAWREPORTS

Suit for Recovery of money on Promissory Note - Execution of Promissory Note admitted by the First Defendant - Once execution is admitted, presumption would be that said Note was drawn for consideration, unless contrary is proved - Burden would be on Defendant to prove that Promissory Note is not supported by any consideration - However, issue framed by the Trial Court casting burden upon Plaintiff to prove passing of consideration - Held, said framing of erroneous issue leading to miscarriage of justice for 21 years - Order of Trial Court and the First Appellate Court ignoring presumption of law under section 118 of NI Act, patently erroneous, illegal and thus, set aside. - 2015 MAD.(2012) MSKLAWREPORTS

Whether the complaint petitions under sec.138 of N.I.Act filed by the Power of Attorney Holder was not maintainable and relying thereupon or on the basis thereof the learned Magistrate could not have issued summons as nothing on the record suggest that an employee is empowered to file the complaint on behalf of the Company.- Complaint is not maintainable.= 2015 S.C. MSK LAWREPORTS

The complaint was not signed either by  Managing
Director or Director of the Company.  
It is also not in  dispute  that  PW-1
is only the employee of the Company.  
As per Resolution of the Company  i.e.
Ex.P3 under first part Managing Director  and  Director  are  authorized  to
file suits and criminal complaints  against  the  debtors  for  recovery  of
money and for prosecution. 
Under third part  of  the  said  Resolution  they
were authorized to appoint or nominate any other person to appear  on  their
behalf in the Court and engage  lawyer  etc.   But  nothing  on  the  record
suggest that an employee is empowered to file the  complaint  on  behalf  of
the Company.  
This apart, Managing  Director  and  Director  are  authorized
persons of the Company to file  the  complaint  by  signing  and  by  giving
evidence. 
At best the said persons can  nominate  any  person  to  represent
themselves or the Company before the Court.  
In the present  case  one  Shri
Shankar Prasad employee of the Company …

Wish you a Happy Republic Day of India

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Wish you a Happy Republic Day of India
....advocatemmmohan

Civil Procedure Code, 1908, s. 60 (k)--Provident Funds Act (XIX of 1925), ss. 2 (a), 3 (1)--Compulsory deposit in Provident Fund--Exemption from attachment - but Arrears of salary and allowances stand upon a different footing and are not exempt from being proceeded against in execution. -2015 S.C.(1952) msklawreports

Civil  Procedure Code, 1908, s. 60 (k)--Provident  Funds Act  (XIX of 1925), ss. 2 (a), 3 (1)--Compulsory deposit  in Provident   Fund--Exemption from attachment - but Arrears of salary and allowances stand upon a  different footing and are not exempt from being proceeded against  in
execution. -2015 S.C.(1952) msklawreports

whether by virtue of marriage, a person would become a member of the Scheduled Caste - No - 2015 A.P. (2014) MSK LAW REPORTS

whether by virtue of marriage, a person would become a member of the Scheduled Caste - No - 2015 A.P. (2014) MSK LAW REPORTS  It is the case of
the writ petitioner that though in her school record maintained by
Government DVHSS School, Vechoor, Kottayam District, Kerala   
her caste was recorded as Roman Catholic, since she has been  
continuously staying at Udimidi Village, and also married a
scheduled caste person and was also undergoing all the ordeals
attached to the scheduled caste community, the said community  
has treated, considered and accepted her as one amongst them. 
 It is
further contended that on her marriage, she becomes part of the
family of her husband and accordingly becomes a member of the 
same caste, to which her husband belongs. Since there was never 
any dispute that her husband belongs to the Scheduled caste
community, the petitioner cannot be treated any differently. Strong
reliance was placed in support of the above plea upon the
judgment of Supreme Court rendered in Vass…

Sec.94 C.P.C- Sec.151 C.P.C.- Or.39 , Rule 2 A C.P.C. - Or.21, Rule 32 C.P.C. - Suit for injunction - ad-interim injunction pending disposal of suit - Police Aid as the petitioners involved in violating it. - Trial court issued Police Aid - Revision - A.P. HIGH COURT held that since the view taken in POLAVARAPU NAGAMANI's case cannot be held to be good law and since it is not acceptable - Though the order of injunction under Order XXXIX of Civil Procedure Code is only interim in nature, still it clothes the person who obtained the order with certain rights and he is entitled to enforce the aforesaid right against the party who is bound by the order. No doubt in such a case, the aggrieved party himself could approach the police authorities to prevent the obstruction to the enforcement of the order or to the exercise of the right which he derives under the order of Court. But when the same person brings to the notice of the Court that the enforcement of the order is sought to be prevented or obstructed, the Court should exercise its inherent power under Section 151 CPC and direct the police authorities to render all aid to the aggrieved party in the implementation of the Court's order. - 2015 A.P. (2013) MSK LAW REPORTS

INTERIM INJUNCTION & POLICE AID
LEGAL POSITION
Section 94 CPC enjoins -
"Supplemental proceedings. -In order to prevent the ends of justice from being
defeated the Court may, if it is so prescribed,-
(a) issue a warrant to arrest the defendant and bring him before the Court to
show- cause why he should not give security for his appearance, and if he fails
to comply with any order for security commit him to the civil prison;
(b) direct the defendant to furnish security to produce any property belonging
to him and to place the same at the disposal of the Court or order the
attachment of any property;
(c) grant a temporary injunction and in case of disobedience commit the person
guilty thereof to the civil prison and order that his property be attached and
sold;
(d) appoint a receiver of any property and enforce the performance of his duties
by attaching and selling his property;
(e) make such other interlocutory orders as may appear to the Court to be just
and convenient."

Order XXXIX Rule …