Uncategorized Archives - Page 12 of 73

3 Jan

High Court of Karnataka overturned an acquittal in a cheack dishonour case, convicting the accused under sec 138 of NI act imposing fine and simple imprisonment.

Prime Legal

Uncategorized #Karnataka #KarnatakaHc #legal #legalnews #primelegal #SBI #

Title: Smt H Bhagyalakshmi v Smt Cheluvamma

Citation: CRL.A No. 2104 of 2018

Decided on: 15.12.2023

Corum: Justice S Rachaiah

Facts of the case

The accused in the present case was an acquaintance of the complainant- a teacher who lent the appellant a sum of Rs. 2.5 Lacks towards the appellants granddaughter’s education and other family necessities. The complainant paid for the same through two instalments of 30,000 each and paid through check the remaining 1,90,000 by the way of cash upon the request of appellant in the presence of three witnesses. However even after the lapse of one year the amount was not repaid back to the complainant.

Upon the complainant insist to repay the said amount, the accused in the month of June 2017 issued a cheque and asked the complainant to present the same for encashment. When the said cheque was presented for encashment, it came to be dishonoured as “could not be proceeded due to alteration”

Subsequently the complainant served legal notice to the appellant in spite of which the amount was not returned nor was a response given to the legal notice. Hence, it constrained the complainant to lodge a complaint against the accused before the Jurisdictional Magistrate.

Legal Provision

The Accused was convicted under Section 138 of Negotiable instrument act which imposes Punishment upon dishonour of checks for insufficiency of funds but was paid compensation through section 357-A of Code of Criminal Procedure (CrPC) to compensate victims of crime who have suffered loss or injury due to this that crime.

Issue

i)Whether the finding of the Trial Court in recording the acquittal of the accused for the offence punishable under Section 138 of N.I Act is justified?

ii) Whether the appellant has made out grounds to interfere with the said findings?

Court analysis and decision

The High Court of Karnataka considering various Precedents, allowed the appeal and set aside the order given by the Trial court which came to the conclusion that the cheque has been altered, however there is no such averment in the endorsement of the bank. In the absence of such averment, the Trial Court continued the recording of the acquittal on the same ground which appears to be not proper and perverse.

The court all ordered for the conviction of the appellant under section 138 of the negotiable instrument act for a period of one year and imposed a fine amount of Rs. 3 Lacks. However, the court also awarded compensation for the complainant a sum of Rs. 2,90,000 and a balance of Rs. 10,000 which must be adjusted towards the exchequer of the state later through Sec 357-A CrPC which establishes the government compensation scheme for the victim.

“PRIME LEGAL is a full-service law firm that has won a National Award and has more than 20 years of experience in an array of sectors and practice areas. Prime legal fall into a category of best law firm, best lawyer, best family lawyer, best divorce lawyer, best divorce law firm, best criminal lawyer, best criminal law firm, best consumer lawyer, best civil lawyer.”

Written by- Namitha Ramesh

Click here to View the Judgement

2 Jan

The writ petition of a medical practitioner was quashed and his clinic was seized on the grounds of noncompliance with the regulations of the Medical Endorsement Act.

Prime Legal

Uncategorized #Medical #Malpracitice #Nagaprasanna #KaranatakaHC

Title: Sri. DR. Annaiah. N v State of Karnataka and ors.

Citation: WP No. 23267 of 2023

Decided: 20.10.2023

Corum: Justice M. Naga Prasanna

Introduction

The Karnataka high court quashed the writ petition filed by the petitioner Sri Annaiah who had approached the court through article 226 and 227 of the constitution of India, praying to set aside an order against him which rejected his application necessary for setting up private medical practise according to the private Medical Establishment act 2007. Justice NagaPrasanna after while delivering his judgment considering various precedents similar in nature and clear review of private medical establishment act 2007.

Brief facts of the case

The petitioner Sri Annaiah is a medical practitioner who insists to have completed his community medical service course (CMS-ED) and obtained a Certificate from the Central Paramedical Education Board, Mumbai as prescribed by the World Health Organization guidelines. Through these accreditations, the petitioner established a clinic named “Sangeetha Clinic” in Bangalore and asserted to have been practicing for years.

The Karnataka Private Medical Establishments Act, 2007, passed by the Karnataka government, went into force in 2008. Anyone planning to open a private medical practice must apply for registration under this Act. The online application submitted by the petitioner to get this approval was rejected on the ground that the petitioner’s qualification was insufficient to meet the requirements of this act.

The core issue revolves around the interpretation of the Act’s provisions, particularly the definition of a “Medical Practitioner” as per Section 2(k), which specifies qualifications for practicing different systems of medicine. The petitioner argued that the Act should not differentiate between medical practitioners and that there are precedents where directions were issued for considering cases of practitioners not in the mainstream of medicine.

In contradiction the government argued that the petitioner was practising allopathy without any necessary qualifications in relation to the endorsement rejecting the application.

Courts observation and analysis

The High Court of Karnataka quashed the writ petition filed by the petitioner on the grounds that the petitioner did not have necessary requirements to practise medicine privately and is not eligible to obtain the required government approval needed for setting up of the practise.

In the light of the aforesaid facts the court also held that there was no fault on the mandate of the statute with the endorsement issued to the petitioner rejecting his application for registering under this act.

The endorsement also notices that the clinic of the petitioner would be seized and the seizure would be axiomatic, as it is a consequence of non-registration of the clinic by a doctor who has no qualification.

Written by – Namitha Ramesh

2 Jan

The State bank of India has the statutory authority to forfeit the amount upon nonpayment of bidding money but it cannot exceed its limit and terms and conditions of the auction.

Prime Legal

Uncategorized #Karnataka #KarnatakaHc #legal #legalnews #primelegal #SBI #

Title: Sri Kalyana Murty K v State Bank of India

Citation: WP No. 23327 of 2022

Decided on: 19.10.2023

Coram: Justice K.V Arvind

Introduction

The Karnataka High Court allowed in part the writ petition filed by the petitioner and granted relief for specific aspect of the claim. Justice K.V Arvind while delivering his judgement considering various precedents similar in nature came to the verdict that the State Bank of India must refund a sum amount of Rs. 10 Lacks along with applicable interest to the petitioner indicating a corrective action to rectify the perceived error in the forfeiture decision.

Facts of the case

A writ petition was filed under article 226 and 227 of constitution of India seeking a writ of mandamus to direct the respondents- State Bank of India to consider the requisition of the petitioner and refund Sri Kalyana Murty of the payment forfeited.

The petitioner emerged as a successful bidder in an auction for the sale of property with the highest bid of Rs. 86,95,000. However, the petitioner could only manage to pay 25% of bid amount as per auction terms and failed to deposit the remaining 75% within the stipulated time. He obtained extensions sighting the reasons of Covid-19 and the financial instability which was followed by health issues. the respondent extended the deadline for payment twice but eventually forfeited 31,73,750 for non-compliance. The petitioner argued that the forfeiture unfair enrichment as the property was resolved at a higher price.

Court’s observation and analysis

The court reviewed Rule 9 of the Security Interest (Enforcement) Rules, 2022, which governs the sale of secured assists through auction. The court also observed that the respondent’s had the statutory authority to forfeit the amount and the petitioner’s health conditions and other reasons would not justify the same.

However, the court recognized that the forfeiture amount must only be up to 25% of the bid amount as per the auction terms and conditions and the additional amount paid by the petitioner, Rs. 10 Lack was directed to be refunded considering any retention beyond 25%of the actual amount is unjust and unfair enrichment. Having allowed this petition in part the court also held that the applicable interest from the date of payment till refund, expeditiously not later than eight weeks from the date of receipt of the order must be paid by the respondents.

Written by- Namitha Ramesh

Click here to view complete Judgement

29 Dec

No Retrospective promotion allowed to Scientists under Flexible Complementing Scheme (FCS)- Delhi HC

Prime Legal

Blog, Uncategorized #Flexiblecomplementingscheme #Scientist #Delhihighcourt

Title: UOI versus Vinay Kumar

+ W.P.(C) 12922/2023, CM APPL. 50874/2023

Decided on: December 19, 2023

CORAM: HON’BLE MR. JUSTICE V. KAMESWAR RAO

HON’BLE MR. JUSTICE ANOOP KUMAR MENDIRATTA

Facts of the Case:

The respondent, formerly a Senior Research Officer in the Ministry of Water Resources, joined the Department of Scientific and Industrial Research (“DSIR”) as Scientist ‘D’ on deputation on August 28, 2007. He was absorbed as Scientist ‘D’ from August 28, 2009, onward. Despite submitting representations for counting deputation period toward residency in the grade of Scientist ‘D’ for promotion to Scientist ‘E’, these were rejected by DSIR in a letter dated February 21, 2012. The rejection stated that residency would be counted from the absorption date, leading to consideration for promotion on January 01, 2014. Consequently, the respondent was promoted to Scientist ‘E’ on January 15, 2014, under the Flexible Complementary Scheme.

Challenging an Office Memorandum dated December 02, 2014, the respondent filed Original Application No. 4423/2015 before the Central Administrative Tribunal, Principal Bench, New Delhi (“Tribunal”). He argued that the deputation period as Scientist ‘D’ should count towards the minimum residency period for promotion to Scientist ‘E,’ advocating for consideration as of July 1, 2011. It’s worth noting that the respondent has since been promoted to Scientist ‘F’ as of January 27, 2020.

The present writ petition challenges an order dated March 10, 2023, issued by the Tribunal in Original Application No. 4423/2015. The Tribunal, relying on the judgment of a co-ordinate bench in Union of India & Anr. v. O.P. Gaba, W.P.(C) 4751/2011, decided on July 11, 2011, directed the respondents to grant notional benefits to the applicant. However, the monetary benefits were limited to the petitioner for three years preceding the filing of the Original Application. The Tribunal instructed completion of this exercise within 120 days of receiving a certified copy of the order, and no costs were awarded.

Laws Involved:

Department of Science and Technology Group ‘A’ Gazetted posts (Non-Ministerial, Scientific and Technical) Rules,1975

Department of Science and Technology Group ‘A’ Gazetted posts (Non-Ministerial, Scientific and Technical) Rules, 2004

Department of Science and Technology Group ‘A’ Gazetted posts (Non-Ministerial, Scientific and Technical) Rules, 2013

Issues framed by the Court:

Whether the applicant is eligible for in-situ promotion under FCS?
Whether the judgment in the case of O.P. Gaba is applicable to this case?
What is the seniority of the petitioners compared to Respondent 5 in the post of DIG?

Courts Judgment and Analysis:

The Tribunal allowed the OA in favor of the applicant, stating that the impugned order dated 08.06.2010 is illegal. The impugned order was quashed and set aside.

The respondents were directed to consider the applicant for in-situ promotion under FCS and promote him, if found fit, from the date he completed four years of residency after coming on deputation in the year 2004.

A Cordinate bench of this Court dismissed the writ petition filed by the Union of India challenging the decision of the Tribunal.

The Tribunal found that the expression “on a regular basis” in the 1975 Rules cannot be interpreted to mean as on absorption in the CBI as SP. Respondent 5 satisfied the eligibility test of the 1975 Rules for consideration for the post of DIG. The Division Bench concluded that the services rendered as Senior Scientific Officer on deputation with the respondent can be regarded as regular service in the grade/scale.

The regular services rendered, excluding ad-hoc service/non-qualifying service, in a post shall count for the purpose of review for promotion to the next higher grade under the Flexible Complementing Scheme (FCS).

The eligibility criteria for in-situ promotion under FCS include proven merit and records of research. Only regular Scientists of the Department of Science and Technology are eligible for FCS promotion. There shall be no retrospective promotions under FCS. The promotions under FCS are limited to posts carrying a grade pay of Rs. 10,000/- or lower. The process for assessment for FCS promotion is undertaken twice a year, on January 1st and July 1st. Field experience of at least two years and five years respectively is essential for promotion to Scientist ‘F’ and Scientist ‘G’ grades respectively.

The Court held that the applicant is eligible for in situ promotion under FCS. The judgment in the case of O.P. Gaba is not applicable to this case. The seniority of the petitioners compared to Respondent 5 in the post of DIG needs to be determined. The impugned order dated 08.06.2010 is illegal and has been quashed and set aside.

Written by- Aditi

Click here to view the judgment

27 Dec

Delhi Police Cleared of Blame as Forensic Science Lab Independence delays Beyond Their Control. – Delhi HC

Prime Legal

Blog, Uncategorized #foreinsiclab #reports #delhipolice #delhihighcourt

Title: STATE (NCT OF DELHI) versus SHADAB

+ CRL.M.C. 6288/2023 & CRL.M.A. 23536/2023 (stay)

Decided on: 22nd December, 2023

CORAM: HON’BLE MR. JUSTICE AMIT BANSAL

Facts of the case:

The petitioner has filed a petition seeking the quashing and setting aside of orders dated July 31, 2023, and August 2, 2023, issued by the Special Judge (NDPS), Additional Sessions Judge (ASJ), District North East, Karkardooma Courts, Delhi. These orders pertain to a case titled State v. Shadab, arising from FIR No. 26/2023. The petitioner, who is the Deputy Commissioner of Police (DCP) (Crime), challenges the observations made in the orders and the bailable warrants issued against him.

The background of the case involves the registration of FIR No. 26/2023 under Sections 21/25 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS), and Section 201 of the Indian Penal Code, 1860 (IPC), at Police Station Crime Branch. The accused persons were sent to judicial custody on February 7, 2023, and the case saw multiple extensions. The exhibit samples were sent to the Forensic Science Laboratory (FSL), and the Chargesheet was filed on July 31, 2023.

The first order, dated July 31, 2023, directed the Investigating Officer (IO), Station House Officer (SHO), Assistant Commissioner of Police (ACP), and DCP (Crime) to appear before the Sessions Judge. The judge expressed concern that the Chargesheet was filed without an FSL Report and highlighted non-compliance with standing orders. The court scheduled the next hearing for August 2, 2023.

On August 2, 2023, the DCP (Crime) requested an exemption from personal appearance, citing official duties. However, the request was rejected for lack of demonstrated official exigencies, and bailable warrants of Rs. 5,000/- were issued against the DCP (Crime), to be executed through the Commissioner of Police.

The petitioner challenges these orders, emphasizing issues of non-compliance with standing orders and the alleged failure of police officials to expedite the FSL report. The petition seeks relief by quashing the mentioned orders and addressing the observations made against the petitioner.

Laws Involved:

Sections 21/25 Narcotic Drugs and Psychotropic Substances Act, 1985-

Punishment for contravention in relation to manufactured drugs and preparations.
Punishment for contravention in relation to psychotropic substances.
Punishment for illegal import in to India, export from India or transhipment of narcotic drugs and psychotropic substances.
Punishment for external dealings in narcotic drugs and psychotropic substances in contravention of section 12.
Punishment for allowing premises, etc., to be used for commission of an offence.

Section 201 of the Indian Penal Code, 1860-

Section 201 punishes any person, who knowing that any offence has been committed, destroys the evidence of that offence or gives false information in order to screen the offender from legal punishment.

Issue framed by the court:

Whether Impugned orders dated 31st July, 2023 and 2nd August, 2023 were unwarranted and beyond the jurisdiction of the Sessions Court?

Courts Judgement and Analysis:

The court held that the issuance of bailable warrants against the petitioner, a DCP (Crime), on August 2, 2023, was without legal basis or authority. The court referred to a previous case, Ajit Kumar v. State (NCT of Delhi), where a Coordinate Bench emphasized the need for judicial restraint and refraining from denigrating remarks against police officials.

The court expressed concern about the potential devastating effect such criticism could have on the professional career of a police officer. It highlighted the practical difficulties faced by police officers in the discharge of their duties, emphasizing that judicial strictures should be passed with utmost circumspection.

The court also referred to a previous case, Sanjay Kumar Sain, where adverse remarks against police officials were expunged. It clarified that the Forensic Science Laboratory (FSL) is an independent government agency not under the control of Delhi Police, and therefore, delays in obtaining reports from FSL should not be attributed to the police.

The court criticized the trial court for overlooking the fact that the FSL director was not under the control of the Commissioner of Police or the petitioner. It noted that there was no material or occasion for the trial court to hold the petitioner guilty for the delay in FSL reports without proper evidence.

Furthermore, the court pointed out that similar orders were being passed by the same judge despite a detailed judgment expunging adverse remarks against senior police officials. This was deemed a breach of judicial discipline. The court emphasized that FSL is an independent body, not under the control of Delhi Police, and criticized the routine issuance of bailable warrants without proper consideration of exemption applications.

In conclusion, the court found the issuance of bailable warrants to be completely untenable, resulting in a lowering of the image and reputation of high-ranking police officials. The court stressed the need for judges to exercise caution in their orders and consider the practical challenges faced by police officers in their duties.

Written by- Aditi

Click here to view the judgment

1 … 10 11 12 13 14 … 73