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Section 125 Cr.P.C have been enacted to remedy/reduce the financial sufferings of a lady, who was forced to leave her matrimonial house, so that some arrangements could be made to enable her to sustain herself. A husband cannot avoid his obligation to maintain his wife and children except if any legally permissibly ground is contained in the statutes. This was held in JAIVEER SINGH v. SUNITA CHAUDHARY [CRL.REV.P. 820/2018] in the High Court of New Delhi by single bench consisting of JUSTICE SUBRAMONIUM PRASAD.

Facts are that the respondent filed a petition U/S.125 Cr.P.C stating she is unable to sustain herself. The petitioner contended the respondent is  working and earning handsomely. Both the parties had filed their respective affidavits of income. Revision petition is filed against the order of Family Court, directing the petitioner to pay monthly maintenance.

Counsel for the petitioner contended that the respondent had by statement  U/S.165 of the Evidence Act made an admission under S.26 of the Act stating she was modelling. He had placed before the court covers of magazines and newspaper articles to establish that the respondent is employed model and is capable of maintaining herself.

Learned counsel for the respondent contended that the order does not require any interference by the Court exercising jurisdiction under Section 397/401 of the CrPC.

The court referred to the Apex court judgment in Chaturbhuj v. Sita Bai, where in it was held that, “Whether the deserted wife was unable to maintain herself, has to be decided on the basis of the material placed on record. Where the personal income of the wife is insufficient she can claim maintenance under Section 125 CrPC. The test is whether the wife is in a position to maintain herself in the way she was used to in the place of her husband.”

The court relied on the judgement of Rajnesh v. Neha, where in the court had laid down criterion for determining the quantum of maintenance, and observed that, “The maintenance amount awarded must be reasonable and realistic, and avoid either of the two extremes i.e. maintenance awarded to the wife should neither be so extravagant which becomes oppressive and unbearable for the respondent, nor should it be so meagre that it drives the wife to penury. The sufficiency of the quantum has to be adjudged so that the wife is able to maintain herself with reasonable comfort.”

Considering the facts of the case and the earlier precedents the court held that, petitioner was not able to point out any perversity in the impugned order. The petitioner was earning well and can pay his wife who has no stable source of income. Magazine covers are not sufficient evidence to demonstrate that the respondent can sustain herself. Thus dismissing the revision petition.

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Where disputed questions of facts are involved which need to be adjudicated  and established during trial, it would be against principles of law to arrive at a conclusion without going into the merits of the case. Thus complaint  U/S.138 NIA ought not be quashed by the High Court by taking recourse to S.482 Cr.P.C. This was held in SHYAM S. BAGESHRA V. STATE NCT OF DELHI & ORS. [CRL.M.C. 1792/2020] in the High Court of New Delhi by single bench consisting of JUSTICE SURESH KUMAR KAIT

Facts are that complaint against petitioner as director of accused company under Sections 138/141/142 of NIA, 1881 was made. Trial court held that prima facie offense was made and summoned accused. Directors of the accused company filed application seeking discharge and dismissal of complaint before the trial court, which was dismissed thus seeking quashing of these orders as well as the complaint in question.

The counsel for the petitioner contended that he is not Director but in fact an employee of accused-company. Nor he is authorized signatory to operate the bank accounts. Complainant has failed to establish responsibility of petitioner and relied on Supreme Court  judgement in N.K.Wahi Vs. Shekhar Singh.

The counsel for respondent contended that petitioner had represented himself as the key managerial person responsible for day to day operations, pleas raised on questions of authorization can only be unfurled in trial, and therefore, the petition is liable to be dismissed.

The court referred to the Apex court judgment in N. Rangachari v. BSNL, where in it was held that, “27. We think that, in the circumstances, the High Court has rightly come to the conclusion that it is not a fit case for exercise of jurisdiction under Section 482 of the Code of Criminal Procedure for quashing the complaint. In fact, an advertence to Sections 138 and 141 of the Negotiable Instruments Act shows that on the other elements of an offence under Section 138 being satisfied, the burden is on the Board of Directors or the officers in charge of the affairs of the company to show that they are not liable to be convicted. Any restriction on their power or existence of any special circumstance that makes them not liable is something that is peculiarly within their knowledge and it is for them to establish at the trial such a restriction or to show that at the relevant time they were not in charge of the affairs of the Company. Reading the complaint as a whole, we are satisfied that it is a case where the contentions sought to be raised by the appellant can only be dealt with after the conclusion (sic commencement) of the trial.”

The court relied on the judgement of  Rajeshbhai Muljibhai Patel & Ors. Vs. State Of Gujarat & Anr., wherein the following observations were made, “When disputed questions of facts are involved which need to be adjudicated after the parties adduce evidence, the complaint under Section 138 of the N.I. Act ought not to have been quashed by the High Court by taking recourse to Section 482 Cr.P.C.”

Considering the facts of the case and the earlier precedents the court held that, petitioner’s employment with the accused-company, whether or not the cheque in question was signed by him etc are the aspects which can be established during trial, that it would be against principles of law to arrive at a conclusion without going into the merits of the case. Thus dismissing the petition.

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Although agency, life and liberty of a person has to be maintained by the Courts but nature, gravity and seriousness of offence and manner of commission of offence and transportation of girl shows the magnitude of conspiracy. This honorable judgement was passed by High Court of Shimla in the case of by Mohammad Nazim Versus State of Himachal Pradesh [Cr.M.P.(M) No.620 of 2021] by The Hon’ble Mr. Justice Vivek Singh Thakur, Judge.

The petitioner had filed the petition stating under Section 438 Criminal Procedure Code, seeking anticipatory bail apprehending his arrest, registered in Police Station Sadar, Shimla, H.P., under Sections 363, 366A, 370(4), 506 and 120B of the Indian Penal Code. The victim, aged about 15 years, who was studying in Class 9th, had left her home at 9.30 a.m. to attend her school i.e. Sanatan Dharam Senior Secondary School, Ganj Bazaar, Shimla, and when she did not return home in the evening, her father, on inquiry, had received information that on that day students were not called in the school. With aforesaid complaint, father of the victim had approached Police Station Sadar, Shimla, with suspicion that someone had abducted her daughter after alluring and misleading her. During investigation, location of mobile number of victim was found in Haryana leading to the clue to the police that victim was travelling towards Delhi. Whereupon, police party was sent to Delhi in search of victim and it was also found that victim was having too many talks on two mobile numbers therefore, CDRs was found at Panipat and thereafter her phone was found switched off. It was revealed that the boy, who had sent the location, was one Ibrahim residing at Badarpur, his room was found locked and it came in notice that he was hiding him in some other house in the room of his friend, wherefrom he was taken to Badarpur Police Station and shown to Jatin, and Jatin had identified him the same boy to whom he had handed over the girl.

The court opinioned that, “Where right to investigate, and to arrest and detain an accused during investigation, is provided under Cr.P.C., there are provisions of Articles 21 and 22 of the Constitution of India, guaranteeing protection of life and personal liberty as well as against arrest and detention in certain cases. Agency and life and liberty of a person has to be maintained by the Courts, in the light of Fundamental Rights guaranteed under Articles 21 and 22 of the Constitution of India, but also keeping in mind interference by the Court directing the Investigating Officer not to arrest an accused amount to interference in the investigation.”

The petition was dismissed stating that, “nature, gravity and seriousness of offence for the manner in which girl has been managed to be transported/travelled from Shimla to a remote village of Uttar Pradesh in an organized manner, and also for finding or ruling out possibility of amplitude and magnitude of the conspiracy.”

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It was a bounden obligation of the respondents, to revere the entry in the service book of the employ, rather displaying his acquiring matriculation qualification. This honorable judgement was passed by High Court of Shimla in the case of Jeet Ram Versus State of H.P. and others [CWPOA No. 7751 of 2019] by The Hon’ble Mr. Justice Sureshwar Thakur, Judge.

The writ petition was filed petition claiming a mandamus, to be pronounced upon the respondents that he be promoted as Clerk, from the date, when certain juniors to him, in the category of Peons, were accorded promotion to the next higher thereto posts of Clerks. Undisputedly, a 15% quota was reserved for Class-IV employees, for theirs being promoted to the next higher post of Clerk. The writ petitioner was appointed on a compassionate basis, in the year 1998, and at the afore stage, he did not possess the matriculation certificate. He, though, acquired the matriculation qualification in October, 2003. However, it was apparent on a reading of reply, to the writ petition, as, instituted by the respondents, that in the year 2003, the fact of the writ petitioner, possessing the matriculation qualification, became entered in his service records. Even though, the writ petitioner was, on the strength of the afore entry, entitled to secure an appropriate place in the seniority list, maintained by the respondents, with respect to the category of Class-IV employees, yet the respondent erred in ignoring the afore factum, and, also consequently, erred in including, for the relevant purpose, rather his name in the seniority list of Class-IV employees.

The learned Additional Advocate General had strived that, “to validate the afore flaws, on the ground, that the writ petitioner, belatedly, in 2015, made a challenge to the seniority list, as became drawn earlier thereto. However, the afore argument, cannot succeed, as it was a bounden obligation of the respondents, to revere the entry in the service book of the petitioner, rather displaying his acquiring matriculation qualification, in the year 2003. The effect of overlooking of the afore, had definitely brought the ill-sequel of the rights of the petitioner, to be considered, for promotion, to the next higher post of Clerk, especially in the year 2013, becoming completely jeopardized.”

The writ petition was allowed by court stating that, “The afore prejudice caused to the writ petitioner, is, required to be undone, and, the respondents are directed to, after affording an opportunity to all the interested persons, re-draw the seniority list of Class-IV employees, from the year 2003, and, in case the respondents concerned, comes to a conclusion, that the writ petitioner occupies a place, higher than those persons, who became promoted to the post of Clerk, ensure that against one of such juniors to the writ petitioner becomes appointed as a Clerk, along with all consequential benefits.”

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A contract, in order to be legal, valid, and binding among the parties thereto, was not required, necessarily, to be signed by all parties. This is an agreed principle but a contract consensus ad idem, regarding the terms of the contract should always exist between the parties. This auspicious judgment was passed by the High Court of Delhi in the matter of MX MEDIA AND ENTERTAINMENT PTE. LTD. V. M/S. CONTAGIOUS ONLINE MEDIA NETWORKS PRIVATE LIMITED [O.M.P.(I) (COMM.) 106/2021, I.A. 4338 of 2021 & 4448 of 2021] by Honourable Justice C. Hari Shankar.

The petitioner is incorporated and located in Singapore and is engaged with the functioning of “MX Player” that produces and develops audio-visual content whereas since sometimes earlier programs of the respondent were being distributed and shown on the petitioner’s Platform. On 24th February 2020, the respondent, under the brand name “The Viral Fever (TVF)” confirmed that it would provide six shows to be hosted on the petitioner’s Platform in 2020-2021. However, this agreement could not be signed since owing to the COVID-2019 pandemic, the petitioner was not in a position to countersign the Agreement and send it back. Hence, the respondent contended that there was no concluded contract, inter alia for the reason that the Agreement was never signed by the petitioner whereas the petitioner opposed this.

Additionally, certain amendments to the agreement were suggested through emails. The petitioner forwarded an amendment to the Agreement which provided for adjustment against the consideration stipulated in the Agreement and the respondent agreed to review the suggested amendment, pointed out that the FE copy of the Agreement was still awaited. Later, the petitioner acknowledged the receipt of confirmation, from the respondent, regarding the adjustment of US $ 1,10,000.

Thus, it was established that instead of counter-signing the original Agreement, forwarded by the petitioner to the respondent on 18th March 2020, the petitioner proposed as many as three “First Amendments” to the original Agreement which was emphasized by the respondents in an email dated 9th December 2020.

Later the respondent pointed out that, as “there was no visibility on timelines for execution of the principal agreement from MX’s end”, the agreement “could not be concluded between the parties” to which the contend that the “principal understanding, as recorded in the Agreement dated March 18, 2020” stood “concluded”, and that it was only on the basis of such “concluded” understanding that the petitioner had paid an advance of US $ 2,00,000 to the respondent on 23rd April, 2020.

In light of these facts the Court observed that, “The discussion, between the petitioner and the respondent, for amendment of the Agreement indicated that there was, in existence, a concluded contract, as there could be no question of any Agreement/addendum to an unconcluded or non-existent contract. The mere fact that alternative options were being explored, between the petitioner and the respondent, did not indicate that the petitioner in any manner repudiated the contract dated 18th March 2020. Rather, by suggesting alternatives, the petitioner was accommodating the difficulties expressed by the respondent.”

However, the Court observed that “A cohesive and conjoint reading of the e-mails exchanged between the petitioner and the respondent clearly indicate that the petitioner was unwilling to abide by the covenants contained in the Agreement dated 18th March 2020, as signed by the respondent and forwarded to the petitioner. Also, the petitioner started to propose changes in the “the overall construct of the arrangement”.” Thus, “By no stretch of imagination can it be said, therefore, that there was consensus ad idem between the parties, at any stage of the proceedings, starting 18th March 2020, regarding the covenants of the Agreement executed. That being so, in the absence of any contract duly signed by both parties, no concluded contract enforceable in law could be said to have come into being.”

The Court emphasized that “The issue is not one of want of signatures of both parties, but want of consensus regarding the Agreement. As a general proposition of law, it cannot be gainsaid that the contract, even if not signed by both parties, may be enforceable, provided consensus ad idem, regarding the terms of the contract, exists, and the parties have acted in accordance with the contract, thereby evincing the intent to be bound by the covenants thereof”

Thus, the court held that since the contract was not legally binding thus, none of the reliefs under the Arbitration Act can be granted to the petitioner, and hence the appeal is dismissed.

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