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13 Jun

THE KERALA HIGH COURT DEGREE IN FAVOUR OF PLAINTIFF FOR DISHONOURED CHEQUE

Prime Legal

Blog #dishonourofcheque, #keralahighcourt

Case Title : ASHOK KUMAR V SANKARANKUTTY PILLAI

Bench : THE HONOURABLE MR. JUSTICE SATHISH NINAN

Case no : RFA NO. 390 OF 2003

Date of order : 6/06/2023`

FACTS OF THE CASE-

The plaintiff and the first defendant were friends and employed in Saudi Arabia.
In March 1995, the first defendant borrowed an amount of ₹5,50,000/- from the plaintiff, to be repaid in three months.
Instead of repaying the borrowed amount, the first defendant issued a post-dated cheque dated 02.11.1996 for ₹5,50,000/- as security, to be returned when the amount is paid.
The cheque was dishonoured for insufficient funds when presented for payment.
The plaintiff filed a suit for the recovery of the dishonoured cheque amount.

JUDGEMENT-

The trial court dismissed the suit, stating that it lacked territorial jurisdiction and that the plaintiff failed to prove the payment of ₹5,50,000/-
On appeal, the court held that the trial court has territorial jurisdiction to entertain the suit since the dishonoured cheque was presented within its jurisdiction.
The defendant did not raise a specific contention regarding lack of territorial jurisdiction at the earliest opportunity, as required by the Code of Civil Procedure.
The court rejected the defendant’s contention that a notice of dishonour was necessary before filing the suit. According to Section 98(c) of the Negotiable Instruments Act, no notice of dishonour is necessary when the party charged cannot suffer damage for want of notice.
The court also rejected the defendant’s argument that the cheque was issued only as security and could not be presented for payment. A cheque issued as security can be enforced if the payment is not made.
The defendant admitted borrowing an amount from the plaintiff but disputed the quantum, claiming it was ₹50,000/- instead of ₹5,50,000/-. However, the court found that the defendant’s claim was not supported by evidence and accepted the plaintiff’s claim.
The court granted a decree in favour of the plaintiff for the amount of ₹5,50,000/- with interest at the rate of 6% per annum from the date of appeal (12.11.2003) until the date of the decree, and thereafter until full realisation from the first defendant and his assets.
The plaintiff was not entitled to interest during the pendency of the suit before the trial court because it was not claimed in the appeal.

Overall, the court set aside the trial court’s decision, granted a decree in favour of the plaintiff for the dishonoured cheque amount with interest, and awarded costs to the appellant throughout the case.

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WRITTEN BY- ANVITHA RAO

13 Jun

No Strict Construction May Limit the Judge’s Authority to Move Anticipatory Bail to Either the High Court or The Sessions Court Judiciary of Delhi

Prime Legal

Blog #delhihighcourt

Title: PANKAJ BANSAL v. STATE (GOVT. OF NCT DELHI) & ANR.

Date of order: 9^th June 2023, BAIL APPLN. 2031/2023 CRL.M. A 16390-16391/2023

CORAM: HON’BLE MR. JUSTICE CHANDRA DHARI SINGH

Facts of the Case

The High Court of Delhi has declared that a stringent interpretation of section 438 of the Criminal Procedure Code cannot limit an applicant’s right to pick either the High Court or the trial court for submitting an anticipatory bail application. Both the Supreme Court and the High Court have concurrent competence to hear matters involving anticipatory bail, according to an analysis of the rule by a vacation bench of Justice Chandra Dhari Singh.

The Applicant may choose between the High Court and the Court of Session. There is no requirement that the Applicant come here before any other court. Since both courts have concurrent jurisdiction and the same cannot be curtailed by construing the provision of Section 438 of the Cr.P.C. narrowly, the court ruled it is up to the applicant to decide which court to go to. It went on to say that the clause can be rendered “constitutionally vulnerable” by the “over-generous infusion of constraints and conditions” that aren’t present in Section 438, because the right to personal freedom cannot depend on compliance with unjustified restrictions.

Since the defendant has not yet been found guilty of the crime for which he has applied for anticipatory bail, the court has stated that “Section 438 is a procedural provision that is concerned with the personal liberty of the individual.”

Justice Singh added that the helpful provision of Section 438 must be preserved rather than discarded, adding context by saying that this was said in light of the earlier view that the ability to grant anticipatory bail was extraordinary in nature and should be exercised only in extraordinary cases.

Courts Analysis and Decision

While giving Pankaj Bansal and Basant Bansal temporary protection in a money laundering case lodged by the Enforcement Directorate in 2021, Justice Singh made the above findings. before the ECIR filed under sections 3 and 4 of PMLA, the petitioners filed for anticipatory bail before the High Court. Given that neither petitioner was identified in the ECIR, neither had they been accused of committing a Scheduled Offence under the PMLA, nor had they been called in for questioning by the investigating agency, the court granted the relief.

The court said it would hear the case again on July 5 because “interim protection may be granted to the Applicant until the next date of hearing,” citing “the interest of justice” and “considering the entirety of the matter and the mandate of Article 21 of the Constitution of India. “Therefore, the judge is of the view the aforementioned Court has the authority to hear the request for bail under the provisions of section 438 even when the petitioner did not contact the Court of Sessions first,” the judge said.

Judgment- click here to review the judgment

Written by- Anushka Satwani

13 Jun

The Delhi High Court has sided with Allen Coaching Centre in a lawsuit over the JEE results and has denied interim relief to FIITJEE.

Prime Legal

Blog #delhihighcourt

Title: FIITJEE LIMITED v. ALLEN EDUCATION AND MANAGEMENT SERVICES PVT. LTD & ORS
Pronounced on: 12th June, 2023, I.A. 9975/2023 in CS (COMM.) 331/2023

CORAM: HON’BLE MR. JUSTICE CHANDRA DHARI SINGH

Facts of the Case

On Monday, the Delhi High Court declined to provide interim relief to FIITJEE in its petition against Allen Career Institute, in which FIITJEE said that Allen Career Institute had taken credit for the results of one of its students who had passed the JEE (Main) 2023 test. The student, identified as Malay Kedia, registered in FIITJEE’s “Four Year Classroom Programme for IIT-JEE (Advanced)-Weekend Contact Classes” in 2018. The lawsuit claimed that the student had attended lessons until September 2022 but had ceased doing so after October 07 of the previous year.

Allen coaching institute was named as a defendant in the complaint filed by FIITJEE to prevent it from releasing photographs or advertisements on social media platforms or print media claiming credit for the student’s accomplishment. Justice Chandra Dhari Singh ruled against granting the temporary restraining order, explaining that the articles cited by FIITJEE did not prove that the Allen coaching institution had consciously sought to capitalise on the student’s achievements.

Courts Analysis and Judgement

The judge stated that the interviews included in the news stories were given by Respondent No. 6 Student, who “discussed his success story without attributing it to either of the parties.” Since the learner was no more enrolled at FIITJEE and had stopped to be their student prior to taking the JEE Mains, the court stated, “Therefore, any interview or assertion that may be provided by him qua about his tests or the results thereby will nevertheless not include any details of his education and will not in any style bias, injure or influence the plaintiff irreparably.”

Justice Singh noted that a student’s achievement is the consequence of his or her own hard work and limitless efforts toward a certain objective. Therefore, the court said, it is not acceptable to involve a kid in a commercially motivated lawsuit between competing coaching organizations that both take credit for the child’s achievement. The court ruled that there was not any evidence to suggest that an established institution like FIITJEE had reason to fear for its reputation.

The court stated, “the institute’s only fear is that the student’s time spent with them will not be compensated by way of business accreditation and validation,” which “in thought about view is not sufficient at all warrant an exemption from an indefinite restraining order as established under Order XXXIX of the CPC.”

The preliminary hearing in the main action is scheduled for July 27.

Judgment- click here to review the judgment

Written by- Anushka Satwani

13 Jun

“ANALYSIS OF A JUDGMENT: ACQUITTAL IN A MURDER CASE BY THE BOMBAY HIGH COURT”

Prime Legal

Blog #BOMBAY HIGH COURT, #criminalappeal, #primelegal

INTRODUCTION:

The High Court of Bombay- Aurangabad Bench passed a judgement on 05 June 2023. In the case of SALIM BABU KHAN vs. THE STATE OF MAHARASHTRA AND OTHERS IN CRIMINAL APPEAL NO. 214 OF 2023 which was passed by a division bench comprising of HONOURABLE SHRI JUSTICE V. V. KANKANWADI and HONOURABLE SHRI JUSTICE ABHAY S. WAGHWASE, the learned Sessions Judge, Jalna acquitted the accused in a case involving the commission of an offense under Section 302 of the Indian Penal Code (IPC). The original informant/appellant, dissatisfied with the acquittal, has filed an appeal invoking the provisions of Section 372 of the Code of Criminal Procedure (Cr.P.C.). In this blog, we will delve into the facts of the case, examine the rival submissions, and analyse the evidence presented in the trial court.

FACTS IN BRIEF:

The appellant, who is also the original informant, approached the Kadim Jalna Police Station with a complaint alleging that the accused, a truck driver, was married to his daughter Shama. It was further alleged that the accused maintained an extramarital affair with another woman, leading to frequent quarrels between the accused and the deceased. On November 3, 2020, the accused husband allegedly poured diesel on his wife and set her on fire, resulting in her death. The appellant filed an FIR under Sections 302, 201, and 120-B read with Section 34 of the IPC.

Trial Proceedings and Judgment: Both accused were charge-sheeted and tried in the Sessions Court. The prosecution presented eight witnesses and relied on documentary evidence. However, after examining the oral and documentary evidence, the learned Sessions Judge reached the conclusion that the prosecution had failed to prove the existence of a criminal conspiracy between the accused to commit the murder. Consequently, the accused persons were acquitted of all charges. Dissatisfied with this judgment, the appellant has now appealed against it.

LAWS INVOLVED:

Section 302 of the Indian Penal Code (IPC): Section 302 deals with the offense of murder. It states that whoever commits murder shall be punished with life imprisonment or the death penalty. Murder is defined as the intentional and unlawful killing of a person with the knowledge that such an act is likely to cause death or with the intention to cause grievous harm that is likely to result in death.
Section 201 of the Indian Penal Code (IPC): Section 201 pertains to the offense of causing the disappearance of evidence. It states that whoever, knowing or having reason to believe that an offense has been committed, intentionally causes the evidence of the offense to disappear, shall be punished with imprisonment for a term that may extend to seven years, along with a possible fine.
Section 120-B read with Section 34 of the Indian Penal Code (IPC): Section 120-B deals with criminal conspiracy, while Section 34 pertains to acts done by several persons in furtherance of common intention. When these sections are read together, it means that if two or more persons conspire to commit an offense and if an act is done by them in furtherance of the common intention of all, each person is held liable as if they had committed the offense individually.

RIVAL SUBMISSIONS:

The learned counsel for the appellant contended that the deceased had informed her father about the extramarital affair and the frequent quarrels between her and the accused husband. It was alleged that the accused conspired to eliminate the deceased due to her objections to the affair. The counsel argued that the circumstances at the scene of the incident indicated murder and not accidental or suicidal death. The counsel further highlighted the testimonies of corroborative witnesses and criticized the trial court for not waiting for the forensic reports, which were crucial pieces of evidence.

ANALYSIS OF THE JUDGMENT:

The appellate court carefully examined the submissions and the material placed before the trial court. It observed that the prosecution’s case primarily relied on the oral evidence of witnesses and documentary evidence such as panchanama and post-mortem reports. However, upon closer scrutiny, the court found several shortcomings in the prosecution’s case.

Firstly, the court noted that the prosecution failed to establish a firm and cogent motive behind the occurrence. The appellant himself could not provide a reason for the quarrels between the accused and the deceased. His testimony also contained inconsistencies and improvements, weakening the prosecution’s case.

Secondly, there was no substantial evidence of a conspiracy between the accused. Mere presence of one accused in the house does not implicate them in the crime. Additionally, the medical evidence was inconclusive about whether the death was homicidal, suicidal, or accidental.

Furthermore, the court highlighted the lack of an eyewitness to the incident, as the case relied solely on circumstantial evidence. In cases based on circumstantial evidence, it is crucial for the prosecution to prove all circumstances beyond reasonable doubt. Unfortunately, the prosecution failed to meet this burden, leaving room for alternative possibilities.

CONCLUSION:

Based on the analysis of the evidence and submissions, the appellate court rejected the appeal and upheld the judgment of the trial court. It emphasized the prosecution’s failure to establish a clear motive, a conspiracy between the accused, and the presence of conclusive evidence. The judgment serves as a reminder of the importance of meeting the burden of proof in criminal cases, especially when relying on circumstantial evidence. Additionally, it underscores the necessity of a strong and cohesive prosecution case supported by relevant laws such as Sections 120-B, 302, and 201 of the Indian Penal Code (IPC) and the provisions of the Code of Criminal Procedure (Cr.P.C.).

JUDGEMENT REVIEWED BY VETHIKA D PORWAL, BMS COLLEGE OF LAW

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13 Jun

The power of a Court in quashing an FIR must be utilised sparingly and cautiously to prevent the abuse of process of the Court and to secure the ends of justice: Gujarat High Court

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Blog

Babubhai Sadabhai Rathod vs State Of Gujarat

Date: 19 April, 2023

Bench: Honourable Justice Ilesh J. Vora

R/CRIMINAL MISC.APPLICATION NO. 14756 of 2013

Facts

In the instant case, the respondent was married to a man. However she was subjected to harassment and cruelty by the man and in- laws. She alleged that the husband and her in laws used to physically abuse her over trivial matters and also over the fact that she had delivered a girl child. It was also alleged that the husband kept pressurising the respondent to get Rs. 2 lakhs from her father. Hence, due to constant physical and mental harassment by her husband, in laws and brother in law, she had left the matrimonial home. As a result, the respondent lodged an FIR against the husband and present applicants(in laws) for the offences punishable under Sections 498A, 323, 506 of IPC as well as section 3 of the Dowry prohibition act. The applicants have filed a suit before this court to quash the FIR against them.

Section 498A deals with punishment for cruelty which may extend to three years imprisonment. Section 323 deals with punishment for voluntarily causing hurt which may extend to one year imprisonment. Section 506 deals with criminal intimidation. Section 3 of the Dowry prohibition act prescribes the punishment for taking dowry which may extend to one year imprisonment.

The learned counsel appearing on behalf of the applicants contended that this was a classic example of misuse of process of law, as by making exaggerated version of the concocted incident, without specific instances of harassment, the entire family members had been impleaded as accused and therefore pleaded before the court to quash the FIR.

The learned counsel for the respondent on the other hand vehemently opposed the plea of quashing of the FIR and contended that looking to the allegations levelled in the FIR against the applicants, at this stage, it cannot be said that no offence is made out against the applicants.

Judgement

The court considered the facts and circumstances and came to an understanding that there was no plausible explanation to substantiate the fact that her in-laws had abetted the husband in the commission of the act of cruelty and it was also not specifically disclosed in the FIR. The court held that bald allegations were made against the in-laws with a malicious intent of roping in and trying to prosecute as many of the husband’s relatives as possible

For the foregoing reasons, the Court held that the accusations made against the applicants did not constitute any offence and hence the FIR was quashed.

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JUDGEMENT REVIEWED BY AMIT ARAVIND

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