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 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

Popular posts from this blog

Or.39, rule 7 of C.P.C - Petition for preservation of properties belongs to the petitioner - as the Govt. is going to demolish the building in road widening scheme - Or.39, rule 1 made absolute against the petitioner infavour of the respondent - Trial court allowed the Petition wrongly - their lordships held that In a suit for injunction, though the question of possession as on the date of filing of the suit is most relevant, there may be other ancillary and incidental questions as to the conduct of the parties before the Court. The concept of possession in law should take in its spectrum all rights, liabilities, immunities and claims vis-`-vis the property which is said to be in possession. When the Court recorded a prima facie finding that Gayatri bai is in possession, she was also in law entitled to take advantage of that presumption. Unless the defendant properly pleads and proves at the earliest stage regarding any such movables or immovables attached to the immovable property, no defendant can be heard of saying that his belongings were lying in the disputed property. - 2015 A.P.(2001) MSKLAWREPORTS

<CIVIL PROCEDURE CODE - - Or.39 Rr.1 and 2 - - Or.39 R.7 - - Suit for possession - - Interim injuction granted was made absolute - - Later on defendant filed a petition to remove and keep in safe custody certain movables laying in the disputed premises alleging that those belong to him and may get spoiled in case of demolition of the building for road widening - - Lower Court ordered handing over such articles after preparing necessary list to the respondent/defendant.         Scope and ambit  of Or.39 R.7 and when the power thereunder to be exercised - - Laid down. >HELD:         Order 39 Rule 7 CPC empowers the Court to make an order for detention, preservation and inspection of any property which is the subject matter of the suit or as to which any question may arise in the suit.  The submission that the power under Rule 7 can be exercised only in respect of the subject matter is therefore not well founded. The...
Read more

Writ - praying to declare that explanation to Section 6 of the amendment Act of 39 of 2005, Explanation: for the purpose of this Section partition means any partition made by execution of a deed of partition duly registered under the Registration Act, 1908 (16 of 1908) or partition effected by a decree of a court as unconstitutional and the same is liable to be struck down and etc; -2015 KAR(2015) msklawreports

"(i) Whether  Section 6  of the Hindu Succession Act, 1956, as amended by the Amendment Act , 2005 is prospective or retrospective in operation? (ii) Whether  Section 6  of the Hindu Succession Act, 1956 as amended by the Amendment Act , 2005 applies to daughters born prior to 17.6.1956? (iii) Whether  Section 6  of the Hindu Succession Act, 1956 as amended by the Amendment Act , 2005 applies to daughters born after 17.6.1956 and prior to 9.9.2005? (iv) Whether  Section 6  of the Hindu Succession Act, 1956 as amended by the Amendment Act , 2005 applies only to daughters born after 9.9.2005? (v) Whether the decision of the Division Bench in the case of Vaishali Ganorkar is per in curium of Gandori Koteshwaramma and others?"   In addressing an argument that the Explanation to  Section 6  clearly provides that partition means any partition made by execution of a deed duly registered under the  Registration Act , 1908...
Read more

Cancellation of Bail with out completing the investigation by police about threat on defacto complainant , is a premature one - - 2015 TELANGANA & AP.MSKLAWREPORTS

the allegation of defacto complainant is that some unknown persons on behalf of the accused,  even though they were in judicial custody, started threatening him with dire consequences if he does not come forward to compromise with them  in the case and in view of such threat he lodged report and consequently Cr.No.705 of 2014 was registered under Sections 506 and 507 IPC. Apart from it, the complainant also narrated that some of the accused were involved in other cases and rowdy sheet was opened against A1. The lower Court cancelled the bail taking the above allegations into consideration. It must be noted that the threat allegations are under investigation and the persons who allegedly threatened the defacto complainant and the connection of accused with them if any has to be found out only after through investigation by the concerned police.  However, before that exercise being completed, the lower Court came to a premature conclusion about the correctness of the...
Read more