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Showing posts from April, 2015

Section 15 of the Juvenile Justice Act of 2000. - the maximum period of sentence is only three years -Section 7(A) of the Juvenile Justice (Care and Protection) Act, 2000. The plea can be raised before any Court and at any point of time. -2015 S.C. MSKLAWREPORTS

Section  7(A)  of  the  Juvenile  Justice  (Care  and
      Protection) Act, 2000.
The plea can be raised before any Court and  at any point of time.
 the age of the accused  appellant  was  less than 18 years at the time of the incident.
It has been brought to  our
      notice that the  appellant has undergone about 8 years  in  jail.
The
      appellant falls within the definition of “juvenile” under Section 2(k)
      of the Juvenile Justice (Care and Protection of children)  Act,  2000.

He can raise the plea of juvenility at any time and before  any  court
      as per the mandate of Section 7(a) and has rightly  done  so.
 It  has
      been proved before us, as per the procedure given in the  Rule  12  of
      the Juvenile Justice Model Rules, 2007, and the  age  of  the  accused
      appellant has been determined  following  the  correct  procedure  and
      there is no doubt regarding it.

  On the question of sentencing, we believe that the  accused  appellant
      is to…

where two views are probable - it is an error in presuming a version against the accused without considering the view which is favourable to the accused . - High court committed wrong and exceeded it's power in reversing the acquittal - when the interested witnesses are contradicted each other - examination of independent witness is necessary - when only one independent witness turned Hostile - accused is entitled for benefit of doubt - Apex court set aside the orders of High court - 2015 S.C. msklawreports

First
the powers of appellate Court while dealing  with  an  appeal  against  an order of acquittal.
Second,
 the sufficiency of  the  testimonies
      of   PW-4  and  PW-5  to  convict  the  accused  persons  without  any
      corroboration from an independent witness
and
the  relevancy  of  the
      statement of a hostile witness involving appreciation of the statement
      of PW-8 who turned hostile.

This Court culled down five general principles in Chandrappa and  Ors. 

as follows:

           “(1) An appellate court has full power to  review,  reappreciate
           and reconsider the evidence upon which the order of acquittal is
           founded.


           (2) The Code of Criminal Procedure,  1973  puts  no  limitation,
           restriction or condition  on  exercise  of  such  power  and  an
           appellate court on the evidence before  it  may  reach  its  own
           conclusion, both on questions of fact and of law.


           (3) Various expressions, such as…

Section 138 & 139 of the Negotiable Instruments Act - the cheque was actually from the cheque book that was issued prior to 2000 as the cheque leaf itself mentioned the date in printed ink as “__/__/199__” - in absence of any other evidence, it cannot be conclusive of the fact that the cheque was issued in 1999. The date of the cheque was as such 20/05/2006 but not decade earlier -as the cheque was dishonoured because the payment was stopped and not for any other reason -This implies that the accused had knowledge of the cheque being presented to the bank, or else how would the accused have instructed her banker to stop the payment. -2015 S.C. msklawreports Section 138 of the Negotiable Instruments Act - the cheque was actually from the cheque book that was issued prior to 2000 as the cheque leaf itself mentioned the date in printed ink as “__/__/199__”. - business transaction in 2007 to release the film “Pokari” in his theatre - High court dismissed the complaint - Apex court held that since the cheque as well as the signature has been accepted by the accused respondent, the presumption under Section 139 would operate. Thus, the burden was on the accused to disprove the cheque or the existence of any legally recoverable debt or liability. To this effect, the accused has come up with a story that the cheque was given to the complainant long back in 1999 as a security to a loan; the loan was repaid but the complainant did not return the security cheque - However, it may be noted that the cheque was dishonoured because the payment was stopped and not for any other reason. This implies that the accused had knowledge of the cheque being presented to the bank, or else how would the accused have instructed her banker to stop the payment. Thus, the story brought out by the accused is unworthy of credit, apart from being unsupported by any evidence.- we are of the view that by itself, in absence of any other evidence, cannot be conclusive of the fact that the cheque was issued in 1999. The date of the cheque was as such 20/05/2006.-2015 S.C. msklawreports

The  two  parties  had  a  business  relationship  whereunder  the
defendant provided movies to the complainant for screening at  his  Theatre.

In May 2006, the defendant sought a loan  of  Rupees  Five  Lakhs  from  the
complainant for supporting the making of a Tamil movie  “Pokari”.
The  said
loan was advanced by  the  complainant  on  20-05-2006.

The  defendant  had
promised to repay the loan on  release  of  the  said  movie.

On repeated requests  made  by  the
complainant, the defendant on 16-01-2007, gave  a  cheque  for  Rs.5  lakhs,
bearing No.822408,  drawn  on  State  Bank  of  Mysore,  Vyalikaval  Branch,
Bangalore.
This cheque was presented by the  complainant  on  the  same  day
through his banker Vijaya  Bank,  Yeshwantpur  Branch,  Bangalore.
But  the
cheque was returned on 18-01-2007  by  the  Bank  with  the  remarks:  “Stop
Payment”.
Thereafter,  the  complainant  issued  a  legal  notice  to   the
defendant on 27-01-2007, at  the  office  address  as  well  as…

where the mandate of Order 39, Rule 3A of the Code is flouted, the aggrieved party shall be entitled to the right of appeal notwithstanding the pendency of the application for grant or vacation of a temporary injunction, against the order remaining in force. - due to the inaction of the Court in following the mandate of law must have a remedy. - 2015 S.C. ( 2000) MSKLAWREPORTS

"Under the normal circumstances the aggrieved party can prefer an appeal only against an order passed under Rules 1, 2, 2A, 4 or 10 of Order 39 of the Code in terms of Order 43, Rule 1 of the Code. 
He cannot approach the appellate or revisional Court during the pendency of the application for grant or vacation of temporary injunction. 
In such circumstances the party who does not get justice due to the inaction of the Court in following the mandate of law must have a remedy. 
So we are of the view that in a case where the mandate of Order 39, Rule 3A of the Code is flouted, the aggrieved party shall be entitled to the right of appeal notwithstanding the pendency of the application for grant or vacation of a temporary injunction, against the order remaining in force. 
In such appeal, if preferred, the appellate Court shall be obliged to entertain the appeal and further to take note of the omission of the subordinate Court in complying with the provisions of Rule 3A. 
In appropriate ca…

Sec.128 of Indian Contract Act - Guarantee co existence with that of Principal unless specifically exempted in the letter of Guarantee - mother aged 85 years, having 1/6 share with limited rights to enjoy the property through will , stood as Guarantor for Mortgage loan executed by her sons for business purpose infavour of Bank - failed to pay debt - Bank filed a petition to DRT - DRT referred the case before Lok Adalat for settlement - joint memo filed but mother not signed - time given to deposit the settled amount towards one time settlement - but the sons principal debtors failed to pay the Lok Adalat awarded amount - while pending sale notices , she filed for setting aside the Lok Adalat Award as it is not binding on her - High court set aside the Award as she is not signed on the Joint Memo and thereby set aside sale etc. conducted pending enquiry - Apex court held that the guarantor cannot escape from her liability as a guarantor for the debt taken by the principal debtor. In the loan agreement, which is the contract before us,there is no clause which shows that the liability of the guarantor is not co-extensive with the principal debtor. Therefore Section 128 of the Indian Contract Act will apply here without any exception.- mere fact of ignorance of joint memo not beliveable as sons and mother are living together - 2015 S.C.MSKLAWREPORTS

The Respondent No.1  C.L.  Vimla
who is a  senior  citizen  aged  about  85  years,  is  the  guarantor.
The
appellant Central Bank of India is the Bank to whom  the  property  involved
in the present case, was mortgaged.
The property  involved  in  the  present
case is a residential house which was  purchased  by  the  husband  of  C.L.
Vimla, namely, C.L.Narsimhaiah Shetty, under a sale deed  dated  10.06.1997.
She is in possession of the property along with other  family  members.  Her
husband, during his life time, executed a Will dated 31.05.1995  bequeathing
his undivided share in favor of his sons  equally  and  while  settling  the
property he granted life interest in favour of the  guarantor.  
However,  he
has not authorized her to sell or mortgage the property.  
The  property  was
mortgaged in favour of Central Bank of India  (hereinafter  referred  to  as
“the Bank”) for raising a loan of Rs.17,50,000/- for  family  business.

The Debt Recovery Tribunal referred  the  case
for settlem…

Benami plea when available ? ; Admissions in Earlier suit whether admissible ? ;Hindu Succession Act

Benami plea when available ?- in the absence of pleadings and evidence that 'purchase in the name of wife or unmarried daughter is not intended to confer any benefit on the person in whose name document was obtained'. it can not be said that the husband is the owner but not wife though holds register document in her favour as Benami for her husband before commencement of Benami Prohibition Act - the document was that of 1933 much earlier to the Act - Benami Plea can be raised but mere pleading and evidence that his father purchased the properties in the name of  first wife is not sufficient to bring the properties of partition - Burden lies on the plaintiff who claims that it is a Benami for real owner but his evidence is silent as to whether Rama Swamy obtained documents in the name of Narasamma without intending to confer any benefit on her.  ;

Admissions in Earlier suit whether admissible ? - Section 21  and 115 of the Act of 1872. -admissions may be proved as against the pe…

Whether a Magistrate, who forwarded the private complaint filed before him to the police for investigation under Section 156(3) Cr.P.C. can interfere in the pending investigation by directing the police to add some more sections of offences in the FIR and investigate? - yes - Private complaint under sec.420, 406 r/w 34 and 120 B I.P.C. forward for investigation - Crl.M.P. filed to added additional sections 409 and 477 A I.P.C., and to investigate - Magistrate allowed the petition - their lordships held that Section 2(h) " investigation" includes all the proceedings under this Code for the collection of evidence conducted by a police officer or by any person (other than a Magistrate) who is authorised by a Magistrate in this behalf; - So, the investigation is an exercise conducted by the police or by the person authorised by magistrate to collect the evidence relating to a particular offence.- as held by Apex court It is well-settled that when a power is given to an authority to do something it includes such incidental or implied powers which would ensure the proper doing of that thing - In my considered view, by this order, he has not committed any judicious overreaches and made an impermissible penetration into the domain of investigation. The prerogative of police to investigation has been kept in tact, but they were only asked to investigate whether the accused have in fact committed the offences under the newly added sections including the ones which are already referred. So, the act of Magistrate cannot be found fault with.- 2015 Telagana & A.P. msklawreports

The defacto complainant filed a private compliant against A1 to A3
before I AJMFC, Kothagudem on the allegations that complainant and
accused are employees of Singareni Collieries Company Limited,
Kothagudem  under Sections 420, 406 r/w 34 and 120B
IPC.
The Court referred the complaint to I Town PS, Kothagudem under
Section 156 (3) Cr.P.C. and the police registered a case in Cr.No.443 of
2014 and investigating the case.
While so, the complainant filed
Crl.M.P.No.8 of 2015 under Section 156 (3) Cr.P.C. requesting the Court to
direct the police to incorporate Sections 409 and 477A IPC in FIR No.443
of 214. 
The accused opposed the petition on the ground that the Court
cannot interfere with the investigation. 
However, the learned Magistrate
turned down the objection and allowed the petition.

Section 156 in The Code Of Criminal Procedure, 1973
156. Police officer' s power to investigate cognizable case.
(1) Any officer in charge of a police station may, without the order of a
Magistrate,
investigate any…

Sec.197 Cr.P.C. - Sanction whether can be considered at the inception stage or at any stage ? - Apex court held that when the allegations are in excess of official duties - Sanction is a conditional precedent for taking cognizance - in other cases it can be considered at any stage - In the case before us, the allegation is that the appellant exceeded in exercising his power during investigation of a criminal case and assaulted the respondent in order to extract some information with regard to the death of one Sannamma, and in that connection, the respondent was detained in the police station for some time. Therefore, the alleged conduct has an essential connection with the discharge of the official duty. Under Section 197 of CrPC, in case, the Government servant accused of an offence, which is alleged to have been committed by him while acting or purporting to act in discharge of his official duty, the previous sanction is necessary. - Apex court set aside the orders of High court and orders of Trail court taking cognizance of the case - 2015 S.C. MSKLAWREPORTS

Sec.197 Cr.P.C. - Sanction whether can be considered at the inception stage or at any stage ? - Apex court held that when the allegations are in excess of official duties - Sanction is a conditional precedent for taking cognizance - in other cases it can be considered at any stage -  In the case before us, the allegation is  that  the  appellant  exceeded  in exercising his power during investigation of a criminal case  and  assaulted the respondent in order to extract  some  information  with  regard  to  the death of one Sannamma, and in that connection, the respondent  was  detained in the police station for some time. Therefore, the alleged conduct  has  an essential connection with the discharge of the official duty. Under  Section 197 of CrPC, in case, the Government servant accused of  an  offence,  which is alleged to have been committed by him while acting or purporting  to  act in discharge of his official duty, the previous sanction is necessary. - Apex court set aside the …