Orders and Judgments Duration – November 23 to December 07, 2018

Common sense often makes a good law.

WILLIAM O. DOUGLAS SUPREME COURT JUSTICE

NEWS – SUPREME COURT

  • Palani v. State of Tamil Nadu
  • Present appeal arose out of the judgment passed by the High Court by which the High Court has dismissed the appeal filed by the Appellant herein thereby confirming his conviction under Section 148 of IPC, Section 435 read with Section 149 Indian Penal Code, 1860 (IPC) and Section 302 read with Section 149 of IPC and the sentence of imprisonment imposed upon him by the trial Court. Question raised in present case is whether Courts below erred in convicting the Appellant.As per the alleged variance between the medical and ocular evidence concerned, it is well-settled that, oral evidence has to get primacy and the medical evidence is basically opinionative and that the medical evidence states that the injury could have been caused in the manner alleged and nothing more. The testimony of the eye witness cannot be thrown out on the ground of inconsistency. Delay in setting the law into motion by lodging the complaint is normally viewed by the Courts in suspicion because there is possibility of concoction of evidence against the Accused. In such cases, it becomes necessary for the prosecution to satisfactorily explain the delay in registration of FIR. But there may be cases where the delay in registration of FIR is inevitable and the same has to be considered. Even a long delay can be condoned if the witness has no motive for falsely implicating the Accused.In the present case, evidence of PW-1 is cogent and consistent and her evidence is amply supported by medical evidence and other evidence. The Courts below recorded concurrent findings of fact qua Appellant-Accused that he along with other Accused caused the murder of deceased. Appeal is dismissed.
    [November 27, 2018] – For more information, please accessReadMore
  • Akhtar and Ors v. State of Bihar and Ors
  • In instant Appeals, Court is concerned with the correctness of the judgment of the High Court of by which the judgment of the trial Court was set aside and the acquittal of the Appellants was reversed. The High Court convicted the Appellants under Section 302 read with Sections 34 and 148 of the Indian Penal Code, 1860 (IPC) and sentenced them to undergo life imprisonment. High Court felt that apart from minor inconsistencies, the evidence of the eye witnesses was reliable and there was sufficient light to identify the Accused. The Accused shared a common intention of killing the deceased according to the High Court. The delay in registering the FIR was found to be not fatal to the case of the Prosecution. The question that falls for determination in this case is whether the High Court was right in setting aside the acquittal of the Appellants and convicting them for an offence of murder.Interference with the judgment of the trial Court in present case by the High Court is on a re-appreciation of evidence which is undoubtedly permissible. Though the High Court was aware of the well-settled principles of law in matters relating to appeals against acquittals, it failed to apply the same in their proper perspective. Interference with an order of acquittal is not permissible on the ground that a different view is possible. If the acquittal is justified on a probable view taken by the trial Court, it should not be interfered with. The reasons given by the trial Court for acquittal mainly pertain to the delay in lodging the FIR, untrustworthy eye witnesses, improbability of identification of the Accused, non-examination of independent witnesses, previous enmity between the Accused and the witnesses, non-production of important prosecution witnesses and improper investigation of the case.The judgment of acquittal by the trial Court is justified which ought not to have been interfered with by the High Court. The High Court could not have reversed a judgment of acquittal merely because another view is possible. The High Court brushed aside the findings recorded by the trial court relating to certain omissions as being minor and held the omissions should not have been the basis on which the Appellants have been acquitted. The High Court ignored the fact that the presumption of innocence in favour of the Appellants is further strengthened by an order of acquittal. No perversity in the judgment of the trial court in acquitting the Appellants has been demonstrated by the High Court for interfering with the judgment of the trial court. The Appeals are allowed. The judgment of the High Court is set aside and the judgment of the trial court is restored.
    [December 04, 2018] – For more information, please accessReadMore
  • New India Assurance Company Limited and Ors v. Rajeshwar Sharma and Ors
  • Present appeals arise from a judgment of a Division Bench of the High Court. The High Court has affirmed the decision of the Commission by which an insurance claim was allowed in the amount of Rs. 17.28 lacs. New India Assurance Company Limited, the insurer, failed in its challenge to the decision of the State Commission before the High Court.The State Commission opined that the order of demolition passed by the Municipal Corporation had not been brought on the record and, in its absence, the exclusion would not operate. In appeal, the High Court affirmed the view of the State Commission, holding that it was incumbent on the insurer to establish that, the exclusion contained in the policy of insurance was attracted by placing on record the orders of a lawfully constituted authority by which demolition was ordered. Further, the High Court held that in the absence of such an order being produced on the record, the insurer was liable to indemnify the loss sustained by the insured. The issue in the present case is confined to whether the exclusion under the policy of insurance was attractedThis Court has held that, where there is an exclusionary Clause in an insurance policy, the burden lies on the insurer to establish that the exclusion is attracted. Any ambiguity must be construed in favour of the insured. Purporting to apply this principle, the State Commission and the High Court held that the insurer had failed to establish that there was an order of the Municipal Corporation for carrying out demolition and hence the exclusion was not attracted.
  • Clause V of the insurance policy contains an exclusion where the destruction of the property has been caused "by order of the government or any lawfully constituted authority". The Municipal Corporation is indeed a lawfully constituted authority, being a statutory authority under the Jammu and Kashmir Municipal Corporation Act, 2000. The demolition was carried out by the Municipal Corporation. The destruction was hence by order of a lawfully constituted authority. Once this be the position, there can be no manner of doubt that, the exclusion under the policy of insurance was attracted.
  • In the present case, there is no ambiguity in Clause V of the insurance policy. The exclusion was clear in exempting the insurer from liability for a loss arising from the destruction of property caused "by order of the government or any lawful authority." The State Commission and the High Court were in error in allowing the claim under the policy of insurance. The appeal filed by the insurer is allowed.
  • [December 07, 2018] – For more information, please accessReadMore

NEWS – HIGH COURT AND TRIBUNALS

  • Bhushan Prasad Singh v. The State of Bihar and Ors. – (High Court of Patna)
  • The Petitioner has filed the present writ application for quashing the order contained in Memo No. 1023 dated 27th May, 2010, whereby the claim of the Petitioner was rejected on the ground that, no promotion can be granted with retrospective effect. The Director while passing the order has lost sight of the hard fact that thrice the Petitioner has to approach the Court for the same relief and due to the reluctance of the respondents the matter of promotion of the Petitioner was not considered and when contempt petition was filed after three rounds of litigation, the Director passed the order holding that, promotion cannot be granted with retrospective effect, hence, the present writ application is the fourth round of litigation. Issue raised in present matter is whether the Respondents can take advantage of their own wrong.The Petitioner was made to suffer on account of reluctance of the Respondents in deciding the claim of the Petitioner. Time and again this Court has also directed the Respondents to consider the case of the Petitioner but they failed to decide the claim of the Petitioner and after two decades they rejected the claim of the Petitioner saying that, the petitioner has now superannuated and no promotion can be granted with retrospective effect. The Court does not approve the action of the Respondents taking advantage of their own wrong. This case is eye opener for the Education Department as this Court is of the considered view that, if the Petitioner approached the Court regularly for his grievance, the authority of the Education Department is responsible for not doing justice to the teachers.There is no denial of the fact that similarly circumstanced others have been granted such benefit. In view of the settled doctrine of non-traverse and the judgment of the Apex Court in the case of Smt. Naseem Bano v. State of U.P. and Others, the action of the Respondents is illegal as it is the obligation of the State authorities to grant promotion in accordance with law. A citizen cannot be non-suited on the ground that, authority has failed to decision in decision making process and therefore the right of citizen stands defeated. The Respondents are directed to grant benefit to the Petitioner which was extended to similarly circumstanced other teachers. Petition allowed.
    [November 22, 2018] – For more information, please accessReadMore
  • Rajagopal and Ors v. Valliyammal and Ors. - (High Court of Kerala)
  • The sum and substance of the case of the husband is that the petition schedule property was purchased by him in the name of the wife and that he constructed a multi-storied building in that property by using his own funds and that he is the real owner of the property and the building therein. Did the husband succeed in establishing that purchase of the petition schedule property in the name of the wife is a benami transaction. If so, did he succeed in rebutting the presumption envisaged under Section 3(2) of the Benami Transactions (Prohibition) Act, 1988.There is a presumption in law that, the person who purchases the property is the owner of the same. This presumption can be displaced by successfully pleading and proving that the document was taken benami in the name of another person for some reason, and the person whose name appears in the document is not the real owner, but only a benami. Heavy burden lies on the person who pleads that the recorded owner is a benami holder. It is well established that burden of proving that a particular sale is benami lies on the person who alleges the transaction to be a benami. The essence of a benami transaction is the intention of the party or parties concerned and often, such intention is shrouded in a thick veil which cannot be easily pierced through.The question regarding a particular sale is benami or not, is largely based on fact. For determining this question, no absolute test, uniformly applicable in all situations, can be laid down. But, in weighing the probabilities and for gathering the relevant indicia, the Courts are usually guided by these circumstances: (1) the source from which the purchase money came; (2) the nature and possession of the property after the purchase; (3) motive, if any, for giving the transaction a benami colour; (4) the position of the parties and the relationship, if any, between the claimant and the alleged benamidar; (5) the custody of the title deeds after the sale and (6) the conduct of the parties concerned in dealing with the property after the sale.
  • In the instant case, the husband has been able to prove the circumstances under which and the reasons for purchasing the property in the name of the wife. He has also been able to prove, on the basis of preponderance of probabilities, that it was he who paid the money for purchasing the property. The wife could not prove that, her parents had paid the money for purchasing the property in her name. The husband could succeed in proving that the purchase of the petition schedule property in the name of the wife was a benami transaction.
  • There was no prohibition for a husband to enter into a benami transaction by purchasing property in the name of his wife or unmarried daughter. But, then, the presumption is that the property was purchased by him for the benefit of the wife or the unmarried daughter. He would be able to get relief, in a suit claiming title to such property, only if he succeeds in rebutting the presumption and proving that the property concerned was purchased not for the benefit of the wife.
  • Construction of a multi-storied building by the husband in the property is a circumstance which indicates that, he purchased the property not for the benefit of the wife but it was for his own benefit. The husband had also given possession of two floors of the building to the second respondent on licence arrangement. This is another circumstance indicating beneficial utilization of the property by the husband. On the other hand, there is no evidence to prove that, the wife had used the property and the building therein for her own benefit. Her residence in the building in the property is only in her capacity as the wife. In these circumstances, the husband could rebut the presumption under Section 3(2) of the Act. The Family Court was not justified in declining to grant a decree of declaration in favour of the husband regarding the title over the property. The Appellant is granted a decree of declaration that he is the owner of the petition schedule property and the building therein.
  • [November 26, 2018] – For more information, please accessReadMore
  • NBCC (India) Ltd v. The State of Assam and Ors. - (High Court of Gauhati)
  • The Petitioner has prayed for setting aside the extract of the meeting minutes of the Micro & Small Enterprise Facilitation Council held on 12th march, 2018, in the office chamber of the Commissioner of Industries & Commerce, Assam, by which the Petitioner has been directed to make payment of the Principal & Local Freight Charges with interest to the Respondent No. 3. The Petitioner submits that, the claim of unpaid dues having been rejected by the learned trial Court and this Court vide Money Suit No. 192/2000 and RFA No. 13/2008, the Respondent No. 3 could not have re-agitated the same issue before the Council under the Micro, Small and Medium Enterprises Development Act, 2006.The letter dated 5th April, 2018 and the extract of the meeting minutes dated 12th March, 2018, clearly show that no conciliation was affected between the parties, with regard to the dispute raised by the Respondent No. 3. Further, the very fact that a direction has been issued by the Council during a meeting in the office chamber of the Commissioner of Industries & Commerce, Assam clearly shows that the issue raised by the Respondent No. 3, with regard to non-payment of his alleged dues has not been decided by way of arbitration, under the provisions of the Arbitration & Conciliation Act, 1996.It is settled law that, where a power is given to do a certain thing in a certain way, they must be done in that way or not at all. All other methods of performance are forbidden. The facts show that the Council could not have issued the orders/directions to the Petitioner, in violation of Section 18 of the 2006 Act. Accordingly, as the Council did not have the power to issue directions for payment of money in the manner it has done, without a source of power being in existence for the same, the Council's orders/directions passed are without jurisdiction and are arbitrary.
  • Besides the above, the claim of the Petitioner having been rejected by the Civil Court and the High Court earlier, present Court finds that the direction passed by the Council in its meeting minutes dated 12th Merch, 2018, in the office chamber of the Commissioner of Industries & Commerce, Assam is not sustainable. Writ Petition is accordingly allowed.
  • [December 03, 2018] – For more information, please accessReadMore
  • Shivendra Raizada and Ors v. State of U.P. and Ors. - (High Court of Allahabad)
  • Present application under Section 482 of Code of Criminal Procedure, 1973 (CrPC) has been filed to quash the proceeding of case under Sections 498A, 323, 504, 506 of Indian Penal Code, 1860 (IPC) and Sections 3/4 of Dowry Prohibition Act, 1961 (D.P. Act), pending in the court of Chief Judicial Magistrate. The applicants submitted that in fact it is absolutely frivolous complaint and learned Chief Judicial Magistrate has also passed the summoning order without application of mind. No dowry was given by the father of the opposite party No. 2 in the marriage and marriage was solemnised in a very simple manner.Allegation of demand of Rs. 80,000 does not come within the purview of dowry as defined by the Apex Court in various decisions and similarly allegations levelled against the Applicants are also not specific for issuance of summoning order or to put them to face trial as held by Apex Court. For establishment of case of demand of dowry, that must co-relate with the marriage or pre-marriage stage and not every demand made by the Applicants after marriage will come within the purview of dowry. It may be to meet some other financial scarcity or to meet some emergent family expenses. Therefore, allegation levelled in the complaint for demand of dowry is not sustainable in the eye of law. Further, it is very much clear that there is no specific allegation against any of the Applicants and allegations are also levelled upon the Applicants, who are even not residing along with applicant No. 1. In fact, it is necessarily required to make specific allegation against each and every applicants whose names are mentioned in the complaint or FIR in the matrimonial cases which is absolutely missing in present case.Therefore, in the light of facts and law laid down by the Apex Court, the allegation of dowry as well as harassment is not sustainable. Accordingly, the proceeding was hereby quashed and the application is allowed.
    [December 06, 2018] – For more information, please accessReadMore

 

Disclaimer (a) “This information has been gathered from various sources. Nothing herein is or may be construed as legal advice”.