consumer protection act cases(1)

7/29/2019 Consumer Protection Act Cases(1)

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Vol-V July, 2010Part-7

IMPORTANT CASE LAWSIMPORTANT CASE LAWS

Compiled by

Tamil Nadu State Judicial AcademyChennai 28


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SUPREME COURT CITATIONS

(2010) 5 Supreme Court Cases 513

V. Kishan RaoVs

Nikhil Super Speciality Hospital and Another

Consumer Protection Services Medical practitioners/Services Medicalnegligence Expert opinion of prima facie negligence, if a precondition for ConsumerForum to proceed with a case No rule of general application, held, can be laid down in thisregard Expert opinion is required only when a case is complicated enough warrantingexpert opinion, or facts of a case are such that Forum cannot resolve an issue without

experts assistance On facts held, where a patient who was suffering from intermittentfever and chills, was wrongly treated for typhoid instead of malaria for four days, whichresulted in her death, was an apparent case of medical negligence It was not necessary toobtain expert opinion in the first instance before District Forum could award compensation Investigation conducted by another hospital where patient was removed in a criticalcondition on fifth day, showed that Widal Test for typhoid was negative whereas test formalariral parasite was positive, was sufficient for District Forum to conclude that it was acase of wrong treatment Consumer Protection Act, 1986 Ss. 2(o), 2(g), 13 and 14 Evidence Act, 1872, S.45.

Consumer Protection Services Medical Practitioners/services Medicalnegligence Requirement to obtain independent medical opinion before investigation isinitiated against a doctor Direction given in Jacob Mathew Case, (2005) 6 SCC 1, para52- Held, is meant for criminal cases and not for civil cases filed in Consumer Fora for thepurpose of determining civil liability General directions given in Martin F.D Souza Case,(2009) 3 SCC 1, para 106 extending the same to civil cases, held, are per incuriam and notbinding Consumer Forum can give appropriate relief on the basis of summary trial onaffidavits Consumer Forum can also, in its discretion, permit expert evidence but it is notbound by views expressed by expert because medical negligence is a mixed question of lawand fact, to be resolved finally by Forum In complicated civil cases requiring expertevidence, parties are also free to approach civil court instead of Consumer Forum Consumer Protection Act, 1986 Ss, 1(o), 3, 13 and 14 Civil Procedure Code, 1908 S.9 Evidence Act, 1872 - S.45 Penal Code, 1860 S. 304-A.

Precedents Per incuriam decision When a judgment is rendered by ignoring

provisions of a statute and earlier larger Bench decision on the point, such decision is perincuriam Such judgment is not a binding precedent Constitution of India Art. 141.

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Consumer protection Consumer Forums - Practice and Procedure EvidenceAct, 1872, if applicable Held, complaints before Consumer For a are tried summarily Evidence Act, 1872 is not applicable For a under Consumer Protection Act, 1986 are tofollow principles of natural justice Hence, District Forum could rely upon hospital records

without following provisions of Ss. 61, 64, 74 and 75, Evidence Act, 1872 - ConsumerProtection Act, 1986 Ss. 13 and 14 Evidence Act, 1872, Ss. 61,64,74 and 75.

Consumer Protection Act, 1986 Generally Purpose of the Act Held, is toprovide a forum for speedy and simple redressal of consumer disputes Such legislativepurpose cannot be defeated or diluted by superimposing requirement of having expertevidence in cases of civil medical negligence, regardless of factual position of a case Kifthat is done, efficacy of Act would be curtailed and in many cases remedy would becomeillusory for common man.


S. KhushbooVs

Kanniammal and Another

Constitution of India Arts. 19(1) (a) & (2) Obscenity Reference to sex or calling

for social acceptance of premarital sex, if obscene Mode of and norms for determinationof Context and purpose for which the reference to sex was made in any given setting, held,must be taken into consideration Moreover, obscenity standards reflecting sensibilities aswell as tolerance level of average reasonable person Appellants statement merelyreferring to increasing incidence of premarital sex and calling for its acceptance but notdescribing sexual act or saying anything which could arouse sexual desires in the mind of a

reasonable and prudent reader, made in context of a survey on sexual habits of people Publication of such statement in news magazine as part of survey, held, not in the nature ofobscene communications Possibility, if any, of such statement encouraging some people toengage in premarital sex, inconsequential as that is not an offence Words and Phrases Obscenity Penal Code, 1860, Ss.292, 40,42 and 497.

Constitution of India Arts. 19(1)(a) & (2) Morally provocative statement notmaking out any offence Role of criminal law Abuse of process of court Proper coursefor Magistrate at cognizance stage Where numerous complaints under provisions of IPCand Indecent Representation of Women (Prohibition ) Act for statement made by accuseddid not make out a prima facie case for any offence, held, Magistrate ought to have directedinvestigation into the allegations before taking cognizance - Striking caveat against lightlyinterfering with constitutional right to freedom of speech and expression , held, there is apresumption in favour of accused in such cases Appellants call for social acceptance ofpremarital sex, held, could not be subjected to interference under criminal law Further,held, morality and criminality cannot be treated to be coextensive Criminal ProcedureCode , 1973 Ss. 190, 202 and 482 Penal Code, 1860 Ss. 153-A, 499, 500, 509,292 Indecent Representation of Women (Prohibition) Act, 1986 Ss. 4 and 6.

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Constitution of India Arts. 19(1) and 136 Quashment of criminal proceedings Proceedings Prosecution under Ss. 153-A-A, 499,500,509,292 IPC and Ss. 4 and 6,Indecent Representation of Women (Prohibition) Act, 1986 Complaints not making out

prima facie case for any of the offences alleged Criminal proceedings, therefore, quashed Criminal Procedure Code, 1973 S. 482.

Criminal Law Particular offences Sexual offences Adults willingly engaging insexual relations outside the marital setting, held, is not an offence, with exception ofadultery as defined under S. 497 IPC Criminal Procedure Code, 1973 S. 2(n) GeneralClauses Act, 1897 S. 3(38) Penal Code, 1860, Sc 40 to 42 and 497.

Penal Code, 1860 - S. 499 Defamation Acts prima facie not amounting todefamation Complaint of such acts if mala fide Determination of Accused in responseto survey conducted by news magazine on subject of sexual habits of people residing in bigcities, making a statement endorsing in general premarital sex and posing a question as towhether people in Tamil Nadu were not aware of incidence of sex or premarital sex Statement not directed at any individual or even at a company or association or collectionof persons Such statement, held, did not constitute prima facie case of defamation ofTamil speaking women Moreover, complainants not having suffered any specific legalinjury by said statement, held, were not persons aggrieved within the meaning of S.199(1) CrPC, 1973 Hence, complaints filed by them, held mala fide - S. 199(1) CrPC, 1973 Hence, complaints filed by them, held, mala fide- More so when most of them wereassociated with a particular political party Criminal Procedure Code, 1973-S. 199(1).

Penal Code, 1860- S. 499 Expln. 2 Scope Tamil- Speaking women, if could beviewed as a class of persons covered by Expln.2.

Penal Code, 1860 S. 509 Offence under Ingredients of, restated Grievancewith publication of a statement calling for social acceptance of premarital sex made by

appellant, held, does not make out said offence.

Penal Code, 1860 S. 153-A Applicability Held, not applicable to statementwhich was neither made on behalf of any group nor was directed against any particulargroup.

Criminal Procedure Code, 1973 S. 199 Requirement of taking cognizance ofoffence of defamation only upon receiving complaint by a person aggrieved Object of,held, is to discourage filing of frivolous complaints Penal Code, 1860 S.499.


C. Magesh and OthersVs

State of Karnataka

Criminal Trial - Appreciation of evidence Contradictions, inconsistencies,exaggerations or embellishments Inconsistencies Conviction whether sustainable Held,consistency is the keyword for upholding conviction of an accused There must be a stringjoining evidence of all the witnesses satisfying the test of consistency Due to inconsistency

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in testimonies, improper identification, absence of specific role attributed to A-25 and A-46,conviction reversed.

Held: In Criminal jurisprudence, evidence has to be evaluated on the touchstone of consistency.Consistency is the keyword for upholding the conviction of an accused. In a criminal trial,evidence of the eyewitness requires a careful assessment and must be evaluated for its

creditability. Since the fundamental aspect of criminal jurisprudence rests upon the statedprinciple that no man is guilty until proven so, hence utmost caution is required to be exercisedin dealing with situations where there are multiple testimonies and equally large number ofwitnesses testifying before the court. There must be a string that should join the evidence of allthe witnesses and thereby satisfying the test of consistency in evidence amongst all the witnesses.Hence, on account of inconsistency, improper identification and in absence of specific role beingattributed to A-25 and A-46, their conviction cannot be upheld.

Constitution of India -Art. 136 Interference in criminal matters Reappreciationof evidence When called for Exception made and evidence reappreciated since caseinvolved certain alleged odious deeds of few individuals, to impart full and substantialjustice Penal Code, 1890, Ss. 302,307, 435, 143, 148 r/w S. 149 IPC.

Held: Normally, it is not in practice to consider each and every individual piece of evidenceavailable; however an exception has been made in this case since it involved certain allegedodious deeds of few individuals. In order to impart full and substantial justice, this exception hasbeen made. Criminal jurisprudence entails that a thorough appreciation of records needs to bedone in order to do complete justice.

Criminal Procedure Code, 1973 Ss. 91 and 233 Accuseds applications to securecertain materials, documents and witnesses to establish their defence Rejected by trialcourt Held, trial court can refuse securing of defence evidence if it feels it is being done tofurther delay the trial Criminal Trial Defence.

Held: In this particular matter there has been an inordinate delay, despite the High Court

granting six months for the completion of the trial and thereafter another three months extensionwas sought by the trial court. As per Section 233 CrPC, the trial court can refuse securing ofdefence evidence if it so feels that the same is being done to further delay the trial. Thus, the trialcourt has committed no error in rejecting the above applications. Even otherwise there seems tobe no prejudice caused to the accused by mere rejection of these applications.

Criminal Procedure Code, 1973 S. 378 Reversal of acq2uittal Principles to befollowed Labour dispute turning hostile leading to death of two women and injury toseveral others Out of 49 accused seven convicted by trial court High Court in crypticmanner reversing acquittal of four accused and confirming conviction of the seven accusedfound guilty by trial court Sustainability Manner of disposal deprecated High Courtwithout properly discussing legal and factual aspects held four accused guilty Held, therewas no occasion to have passed order of conviction without removing doubts with regard tocorrectness, legality and propriety of the two dying declarations Four accused convictedby High Court, acquitted Out of remaining seven accused appellants, conviction andsentence awarded by trial court and confirmed by High Court for A-1, A-2, A-32, A-33,confirmed A -25 and A- 46 acquitted Penal Code, 1860 Ss. 302, 307,435,427,143 and148 r/w S. 149 IPC.

Criminal Procedure Code, 1973 S.154 FIR Object and value of Denial of, byperson by whom lodged Effect Reiterated, FIR not a substantive piece of evidence However, cannot be given a complete go-by Can be used to corroborate evidence of

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person lodging it In present case, due to discrepancies in evidence and no secondaryevidence led to ascertain veracity of FIR, the same cannot be wholly relied on EvidenceAct, Ss. 145 and 157.

Evidence Act, 1872 S. 32(1) Recording of dying declaration Mode of 10recording statements in hospital of two injured persons sustaining burn injuries Answers

not in question-answer form, doctors certifying they were in a fit state of health to havetheir statements recorded only at the end of recording the statements Also statement notrecorded in presence of Magistrate Effect Held, treating the said statements as dyingdeclarations, questionable Criminal Procedure Code, 1973, Ss. 161, 162 and 164.

Constitution of India Art. 136 - Interference in criminal matters Concurrentfindings of fact General rule of no interference Conviction of five accused by trial court,confirmed by High Court Held, great consistency in evidence with regard to differentroles attributed to said five accused Concurrent findings of fact recorded against them,cannot be interfered with in appeal Conviction and sentence upheld.

2010 2 MLJ(Crl) 1104(SC)

Sidhartha Vashisht @ Manu SharmaVs

State (NCT of Delhi)

Indian Penal Code (45 of 1860), Sections 302, 201 read with 120-B- Murder case Presence of accused at scene of crime proved Prosecution established its case beyondreasonable doubt Order of High Court reversing order of acquittal and convictingaccused held to be proper.

FACTS IN BRIEF: Aggrieved by the order of the High Court by which the High Court

reversed the order of acquittal passed by the trial Court and convicted the accused under Section302, 201 / 120-B IPC and Section 27 of the Arms Act, present appeal is filed by the accused.

QUERIES:

1. Whether the prosecution has established its case beyond reasonable doubt against allthe three accused?

2. Whether the trial Court is justified in acquitting all the accused in respect of chargesleveled against them?

3. Whether the order of the High Court imposing punishment when the trial Courtacquitted all the accused in respect of the charges leveled against them is sustainable?

Held: From the evidence adduced, it is clear that the accused Nos. 1-3 were present at thescene of occurrence. Admittedly without setting up a plea of alibi to show their presenceelsewhere, they have flatly denied their presence. It has been proved by the prosecution that thedeceased was murdered for a row over the drink. The evidence regarding the actual incident, thetestimonies of witnesses, the evidence connecting the vehicles and cartridges to the accused

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Manu Sharma, as well as his conduct after the incident prove his guilt beyond reasonable doubt.The High Court has analyzed all the evidence and arrived at the correct conclusion.

Code of Criminal Procedure, 1973 (2 of 1974), Section 154 First InformationReport- Cryptic telephonic messages not giving particulars of offence or accused could notbe treated as FIR.

Held: It is evident from the facts established on record in the present case that none of the threetelephonic messages received by police furnished any detail about the offence or the accused.Cryptic telephonic messages could not be treated as FIR as their object is only to get the police tothe scene of offence and not to register the FIR. The said intention can also be clearly culled outfrom a bare reading of Section 154 of the Code of Criminal Procedure. In view of the same, thethree telephonic messages received by the police around 2.25 a.m. on 30.4.1999 did notconstitute the FIR under Section 154 of the Code and the statement of Shyan Munshi P.W.2 wasrightly registered as the FIR.

Code of Criminal Procedure, 1973 (2 of 1974), Section 162 Statements of witnesses Delay in recording evidence of witnesses Identity of accused as suspect in present casenot consequence of any delay Delay not fatal to prosecution case.

Held: In the present case, there were about 100 or more persons present at the party. Theeidentity of all such persons took substantial amount of time to determine. Consequent to the largenumber of witnesses, their interrogation also consequently took a substantial amount of time.Unlike the said decision, in the present case, there are no concomitant circumstances to suggestthat the investigator was deliberately making time with a view to give a particular shape to thecase. The details of investigation conducted on each day are very clearly brought out in theevidence of the various witnesses. Furthermore, the identity of the appellant as a suspect in thepresent case was not the consequence of any delay. Thus, the delay, if any, in recording theevidence of witnesses in the present case cannot be considered as an infirmity in the prosecutioncase.

Code of Criminal Procedure, 1973 (2 of 1974), Sections 207 and 208 Bar Councilof India Rules, Rule 16 - Constitution of India (1950), Article 21- Role of Public Prosecutor Duty of disclosure to disclose certain evidence to defence Right of accused to free andfair trial Trial would only be vitiated if non-disclosure amounts to material irregularityand causes irreversible prejudice to accused.

Held: It is clear that the Code & the Bar Council of India Rules provide a wide duty ofdisclosure. But this duty is limited to evidence on which the prosecutor proposes to placereliance during the trial. The right of the accused with regard to disclosure of documents is alimited right but is codified and is the very foundation of a fair investigation and trial. Adocument which has been obtained bonafidely and has bearing on the case of the prosecution andin the opinion of the public prosecutor, the same should be disclosed to the accused in the interestof justice and fair investigation and trial should be furnished to the accused. Then that documentshould be disclosed to the accused giving him chance of fair defence, particularly when non-production or disclosure of such a document would affect administration of criminal justice andthe defence of the accused prejudicially. The concept of disclosure and duties of the prosecutorunder the English System cannot be made applicable to Indian Criminal Jurisprudence StrictoSenso at this stage. However, the doctrine of disclosure would have to be given somewhatexpanded application. As far as the present case is concerned, it has been noticed that noprejudice had been caused to the right of the accused to fair trial and non-furnishing of the copyof one of the ballistic reports had not hampered the ends of justice.

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Test Identification Parade-No previous TIP-Court may appreciate dockidentification as being above-board and more than conclusive.

Held: Learned Solicitor General submitted that, even otherwise, an adverse inference ought tobe drawn against the appellants for their refusal to join the TIP. This view has found favor timeand again by this Court. It is pertinent to note that it is dock identification which is a substantive

piece of evidence. Therefore even where no TIP is conducted no prejudice can be caused to thecase of the Prosecution.

Observations or disparaging remarks by higher Courts Language which mayimply an allegation of suspicion in performance of function of Court should be carefullyexamined Unless absolutely established on record, comments should be avoided.

Held: In line with the consistent view of this Court, the Division Bench could have avoidedmaking such observations which directly or impliedly indicates towards impropriety in thefunctioning of the Court, appreciation of evidence by the learned Judge and /or any otherancillary matter. The content and merit of the judgment would have remained unaffected even ifsuch language or comments were not made against the learned trial judge. The respect ofjudiciary and for the judiciary, is of paramount consideration. Every possible effort should bemade and precaution taken which will help in preservation of public faith and individual dignity.A judicial consensus would require that the judgment should be set aside or affirmed as the casemay be but preferably without offering any undesirable comments, disparaging remarks orindications which would impinge upon the dignity and respect of judicial system, actus curiaeneminem gravabit. Despite exercise of such restraint, if, in a given case, the Court findscompelling reasons for making any comments in that even it will be in consonance with the basicrule of law and adherence to the principles of natural justice that view point of the concernedlearned judges should also be invited.

Constitution of India (1950), Article 19(1)(a) Freedom of speech and expression Distinction between trial by media and informative media Trial by media should beavoided particularly in view of constitutional protections given to suspect Invasion of his

rights bound to be held as impermissible.

Held: Despite the significance of the print and electronic media in the present day, it is not onlydesirable but least that is expected of the persons at the helm of affairs in the field, to ensure thattrial by media does not hamper fair investigation by the investigating agency and moreimportantly does not prejudice the right of defence of the accused in any manner what-soever. Itwill amount to travesty of justice if either of this causes impediments in the accepted judicious andfair investigation and trial. Presumption of innocence of an accused is a legal presumption andshould not be destroyed at the very threshould through the process of media trial and that toowhen the investigation is pending. In that event, it will be opposed to the very basic rule of lawand would impinge upon the protection granted to an accused under Article 21 of the Constitution(Anukul Chandra Pradhan v. Union of India and Others (1996) 6 SCC 354)

2010 -1- L.W.(Crl) 654

Babubhai Jamnadas PatelVs

State of Gujarat & Ors.

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Criminal P.C.,Section 156/Investigation by the Police Powers of the Court to givedirections, Scope, I.P.C., Section 420, 465, 120-B, Appeal to Supreme Court against interimorder passed by Gujarat High Court in Criminal Appeals.

Question is as to whether the Courts can monitor investigations in respect ofoffences alleged to have been committed when the investigation had already been

commenced by the investigation agency.

Held: There is little doubt that normally investigation of offences is the function of theinvestigating agencies and the Courts do not ordinarily interfere with the same But, at thesame time the High Court is vested with such powers, though the same are invoked only incases when extraordinary facts are involved, necessitating such monitoring by the Courts.

Courts, and in particular the High Courts and the Supreme Court, are the sentinelsof justice and have been vested with extraordinary powers of Judicial Review andsupervision to ensure that the rights of the citizens are duly protected Courts have tomaintain a constant vigil against the inaction of the authorities in discharging their dutiesand obligations in the interest of the citizens for whom hey exist.

In the instant case, the High Court had to repeatedly intervene and pass orders toensure that the investigation was being conducted diligently - Periodical status reports wererequired in that regard Because of the tardy progress of the investigation the High Courthad to step in at the instance of the respondents herein.

There can be no doubt that in appropriate cases, the Courts may monitor aninvestigation into an offence when it is satisfied that either the investigation is not beingproceeded with or is being influenced by interested persons.

I.P.C., Section 420, 465, 120 - B, Appeal to Supreme Court against interim orderpassed by Gujarat High Court in Criminal Appeals See Criminal P.C., Section156/Investigation by the Police Powers of the Court to give directions, Scope.

2010 -1- L.W.(Crl) 680

Gangula Mohan ReddyVs

State of Andhra Pradesh

I.P.C., Section 106/Abetment of suicide, Ingredient, Definition of abetment,Section 109/Instigation, meaning of.

Appellant, employer of the deceased victim agricultural labourer was stated tohave harassed the deceased by levelling accusations of theft of jewels and for return ofadvance money paid Conviction of appellant, held, cannot be sustained.

Without a positive act on the part of the accused to instigate or aid in committingsuicide, conviction cannot be sustained In order to convict a person under section 306 IPCthere has to be a clear means rea to commit the offence It also requires an active act ordirect act which led the deceased to commit suicide seeing no option and this act must havebeen intended to push the deceased into such a position that he committed suicide.

I.P.C., Section 109/Instigation, meaning of-See Section 106/Instigation, meaningof See Section 106/Abetment of suicide, Ingredient, Definition of abetment.

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The word suicide in itself is nowhere defined in the Indian Penal Code, however itsmeaning and import is well known and requires no explanation. Sus means self and cidemeans killing, thus implying an act of self-killing. In short a person committing suicide mustcommit it by himself, irrespective of the means employed by him in achieving his object ofkilling himself. Para 7 Suicide by itself is not an offence under either English or Indian criminal

law, though at one time it was a felony in England. Para 8 In our country, while suicide in itselfis not an offence, considering that the successful offender is beyond the reach of law, attempt tosuicide is an offence under section 309 of IPC. Para 10 Abetment involves a mental process ofinstigating a person or intentionally aiding a person in doing of a thing. Without a positive act onthe part of the accused to instigate or aid in committing suicide, conviction cannot be sustained.The intention of the Legislature and the ratio of the cases decided by this court is clear that inorder to convict a person under section 306 IPC there has to be a clear mean rea to commit theoffence. It also requires an active act or direct act which led the deceased to commit suicideseeing no option and this act must have been intended to push the deceased into such a positionthat he committed suicide. In the light of the provisions of law and the settled legal positionscrystallized by a series of judgments of this Court, the conviction of the appellant cannot besustained. Consequently, the appeal filed by the appellant is allowed and disposed of.

2010 -1- L.W.(Crl) 693

K.M. IbrahimVs

K.P. Mohammed & anr.

Negotiable Instruments Act(1881), Sections 138, 147,

Criminal P.C., Section 320/ Compounding of offence, After the proceedings hadbeen concluded before the Appellate Forum, Acquittal, Scope,

Constitution of India, Article 142 / Powers of the Supreme Court.

Appeal to Supreme Court was preferred against the dismissal of Revision Petitionby the High Court confirming the conviction by the appellate court and trial court It wascontended for appellant that since specific power had been given to the parties to aproceeding under the Negotiable Instruments Act under Section 147 to compound theoffence, there could be no reason as to why the same cannot be permitted even afterconviction, which had been affirmed upto the High Court

Held: It is true that the application under Section 147 of the Negotiable Instruments Actwas made by the parties after the proceedings had been concluded before the AppellateForum-However, Section 147 of the aforesaid Act does not bar the parties fromcompounding an offence under Section 138 even at the appellate stage of the proceedings.

There is no reason to reject the application under Section 147 of the aforesaid Acteven in a proceeding under Article 136 of the Constitution Since the parties have settledtheir disputes, in keeping with the spirit of Section 147 of the Act, we allow the parties tocompound the offence, set aside the judgment of the courts below and acquit the appellantof the charges against him.

2010 -3- L.W. 577

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L.I.C. of India & anotherVs

Ram Pal Singh Bisen

C.P.C., Order XII, Rules 1,2,2-A,3-A (as amended by Act 104 of 1976, w.e.f.1.2.1977) / Admissions, Notice of Admissions, Notice to admit, Practice andProcedure/Evidence, Proof of document, Service / Wrongful dismissal, Suit filed byDevelopment Officer of the L.I.C. challenging his dismissal.

Question is as to the effect of documents filed by appellants nad marked as exhibits,in absence of any oral evidence having been tendered by the appellants (L.I.C) andespecially in absence of putting their own defence to the respondent during his crossexamination in the Court Appellants have not been able to show compliance of Order 12Rule 1 and 2 of the CPC, meaning thereby that there has not been any compliance thereof Records do not reveal that any such procedure was adopted either by the appellants or bythe Trial Court to prove the documents filed by the appellants and mark them as Exhibits Thus no advantage thereof could be accrued to the appellants, even if it is assumed that saiddocuments have been admitted by respondent and were then exhibited and marked.

It is true that failure to prove the defence does not amount to an admission, nor doesit reverse or discharge the burden of proof of the plaintiff but still the duty cast on thedefendants has to be discharged by adducing oral evidence, which the appellants havemiserably failed to do Thus looking to the matter from any angle, it is fully establishedthat appellants had miserably failed to prove and establish their defence in the case.

Under the Law of Evidence also, it is necessary that contents of documents arerequired to be proved either by primary or by secondary evidence Contents of thedocument cannot be proved by merely filing in a court.

Practice and Procedure/Evidence, Proof of documents See C.P.C., Order XII,Rules 1,2,2-A, 3-A (as amended by Act 104 of 1976, w.e.f 1.2.1977)/Admissions, Notice ofAdmissions, Notice to admit.

Evidence, Proof of document See C.P.C., Order XII, Rules 1,2,2-A, 3-A (asamended by Act 104 of 1976, w.e.f. 1.2.1977) / Admissions, Notice of Admissions, Notice toadmit, Practice and Procedure.

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Service / Wrongful dismissal, Suit filed by Development Officer of the L.I.C.challenging his dismissal See C.P.C., Order XII, Rules 1,2,2-A (as amended by Act 104 of1976, w.e.f. 1.2.1977) / Admissions, Notice of Admissions, Notice to admit, Practice andProcedure/Evidence, Proof of document.

Suit was filed challenging order of dismissal of the plaintiff Development Officer,passed by appellant L.I.C., and confirmed on appeal, etc. therefrom. Suit was decreed by trialcourt and it was upheld by High Court. Appeal to Supreme Court was preferred by the L.I.C.

Held: Records reveal a sorry state of affairs as to the manner in which suit had been contested inthe trial court by the appellants herein, abutting gross negligence and callous manner, not evenadhering to the provisions of the Code of Civil Procedure and the Indian Evidence Act, yetchallenging the same before this Court, even after having lost from all courts.

2010 -3- L.W. 602

H.P. VedavyasacharVs

Shivashankara & Anr.

C.P.C., Order 41, Rule 27 / Additional Evidence, application for, before theappellate court, Duty and Powers of Appellate Court, Practice and Procedure.

While allowing an application for adducing additional evidence, the appellate courthas two options open to it; it may record the evidence itself, or it may direct the trial courtto do so In this case, the High Court could not have directed the trial court to dispose ofthe suit after taking evidence Such an order of remand could be only in terms of Order 41,

Rule 23 or Rule 23A or Rule 25 Order of High Court set aside Directions passed.

The application for additional evidence, in the appeal before the High Court, was allowedstating that the appellants are permitted to lead additional evidence before the trial court. Therespondent also be provided opportunity to cross-examine the appellants in regard to theadditional evidence that is sought to be produced and the trial court shall thereafter dispose of thecase on merits insofar as B Schedule property is concerned.

It was contended before the Supreme Court that in any event for the said purpose, theentire case could not have been remanded to the trial court for fresh disposal after recording freshevidence as it was not a removal as envisaged under Order XLI Rule 23 of CPC.

Held: When an application for adducing additional evidence is allowed the appellate court hastwo options open to it. It may record the evidence itself or it may direct the trial court to do so.

For the aforementioned purpose, in our considered opinion, the High Court could nothave directed the trial court to dispose of the suit after taking evidence. Such an order of remandcould be only in terms of Order XLI Rule 25 of the Code. None of the said provisions have anyapplication in the instant case.

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Order of the High Court modified, directing as under:

(i) The learned trial court upon recording the evidence as directed by the High Court shalltransmit the records to the First Appellate Court with a copy of its report annexedthereto.

(ii) Such an exercise by the learned trial court must be completed within a period of fourweeks from the date of communication of this order.

(iii) The first appellate court must dispose of the first appeal on receipt of the said orderas also the evidence as adduced as expeditiously as possible.

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HIGH COURT CITATIONS

(2010) 4 MLJ 11 56

K. Ramachandran represented by his Power Agent M.P. MurugesanVs

Bagawathi

Code of Civil Procedure (5 of 1908), Order 9 Rule 9, Order 3 Rule 2 LimitationAct (36 of 1963), Section 5- Dismissal of set aside ex parte application and delay condo-nation application filed by Power of Attorney/Subsequent purchaser No leave obtainedfrom Court to be represented as POA-Purchase hit by lis pendens and no sufficient reasons

assigned for delay-Revision dismissed.

FACTS IN BRIEF: The restoration and delay condonation applications were filed by the Powerof Attorney who is the subsequent purchaser of the property in dispute was dismissed. A revisionwas preferred there from.

QUERY: Whether an application filed by the Power agent of the defendant for setting aside theexparte decree and to condone the delay in filing the application is maintainable, when no leaveof the Court was obtained to be represented as Power of Attorney?

Held: On a conspectus of the facts and circumstances of the case which float on the surface,this Court is of the considered view that the petitioner after dismissal of impleading applicationI.A. No. 100 of 2007 endeavours to step into the shoes of his vendor/defendant by subsequentpurchaser who purchased the suit property on 6.7.2005 after the passing of an exparte decree on29.9.2003 but before the restoration, is clearly hit by principle of lis pendens as per Section 52 ofthe Transfer of Property Act and moreover, the reasons assigned by the power agent of therevision petitioner in I.A. No. 2628 to 2631 of 2008 that he was suffering from henenteric feverand took treatment and therefore, he could not contact his previous counsel due to his ill-healthwere not a sufficient/good cause and this Court is not inclined to adopt a liberal, elastic and ajustice oriented approach overriding technicalities in the present case based on the facts andcircumstances and viewed in that perspective, these Civil Revision Petitions fail.

Code of Civil Procedure (5 of 1908), Order 3 Rule 2 Permission to be representedby Power of Attorney Vests with discretion of Court.

Held: It is left open to the Court to grant or withhold the permission in its discretion. As a mat-ter of fact, the Court may even after grant of permission, withdraw it half way through if the rep-resentative proves himself reprehensible. The antecedents, the relationship, the reasons for re-quisitioning the services of the private person and a variety of other circumstances must begathered before grant or refusal of permission.

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Limitation Act 36 ofm1963), Section 5 Sufficient cause What is - When to adoptliberal, elastic and justice oriented approach.

Held: The reasons assigned by the power agent of the revision petitioner in I.A. No. 2628 to2631 of 2008 that he was suffering from henenteric fever and took treatment and therefore, he

could not contact his previous counsel due to his ill-health were not a sufficient/good cause andthis Court is not inclined to adopt a liberal, elastic and a justice oriented approach overridingtechnicalities in the present case (based on the facts and circumstances and viewed in that per-spective, these Civil Revision Petitions fail.

(2010) 4 MLJ 981

KuppanVs

Muniammal and Another

Hindu Marriage Act (25 of 1955), Sections 11,16 Indian Evidence Act (1 of 1872),Section 114 Partition Presumption of marriage Legitimacy of children born out of voidmarriage.

FACTS IN BRIEF: Suit filed for partition which was dismissed by the trial Court, but reversedby the first appellate Court. Aggrieved over the same, defendant preferred the present second ap-peal disputing the legitimacy of plaintiff for getting the share.

QUERY: Whether the first appellate Court was right in holding that the factum of marriage wasproved and therefore plaintiff was the legitimate son entitled for share in the properties?

Held: Even though, 1st Plaintiff was third wife of Sadasiva Gounder and notwithstanding such

marriage is void, children who are born who would have otherwise been legitimate if the mar-riage had been valid, shall be deemed to be their legitimate children. Invoking Section 16 ofHindu Marriage Act, lower Appellate Court rightly held that 2nd plaintiff being born out of suchmarriage shall be deemed to be the legitimate son of Sadasiva Gounder.

Properties being ancestral properties, Sadasiva Gounder was entitled to half share and de-fendant is entitled to the remaining half share. Being third wife, 1st Plaintiff is not entitled to anyshare in the properties of Sadasiva Gounder. From out of half share of Sadasiva Gounder, 2nd

plaintiff is entitled to half share i.e. 1/4th share. Lower Appellate Court rightly held that 2nd

plaintiff would be entitled to 1/4th share in the suit properties.

2010 3- L.W. 502

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M/s. Transchem Limited, rep. By its Managing DirectorVs

M/s. Chouraria Wire Netting Industries, By its Managing Partner

Prayer: Appeal filed under Section 96 of the Code of Civil Procedure against the judg-

ment and decree passed in O.S.No. 1350 of 2000, dated 16.04.2003 on the file of the AdditionalDistrict Judge, Fast Track Court V, Chennai.

Limitation Act (1963), Sections 19,18, acknowledgment, what is, mere payment, sansacknowledgment of such payment will not save limitation, Limitation Act (1908), Section 20.

Held: Plaintiff was maintaining a running account By means of Ex.A-5 the defendantsent a fax message on 5.9.1996 admitting the debt and stated that they are in a position toclear all the debts and requested the plaintiff to wait - It can be treated as an acknowledg-ment under Section 18 of the present Act.

The legal requirement is, payment within the period of limitation shall be acknow-ledged in writing by borrower and from the date of such acknowledgment time would beginto run In the absence of such acknowledgment, mere payment alone would not serve limit-ation To put it differently in clear terms, mere payment made on 24.12.1996, within 3years from 24.12.1996 it will not save limitation.

Held: Section 20 of the earlier Limitation Act (9/1908) is analogous to Section 19 of the newAct in verbatim. What section 20 of the old Act says, has been reiterated in Section 19 of thenew Act. There is no difference at all. Hence, the principles laid down under Section 20 of theold Act would be applicable to the debts which are governed by the present Section 19 of the newAct. In the present case on hand, concededly the plaintiff was maintaining a running account. Bymeans of Ex.A-5 the defendant sent a fax message of 5.9.1996 admitting the debt and stated thatthey are in a position to clear all the debts and requested the plaintiff to wait for one more weekor two. It can be treated as an acknowledgment under Section 18 of the present Act. Worthwhile

it is to say that contents in Section 19 of the old Act No 9/1908 are being produced in Section 18of the present Act. So Section 18 of the new act is Section 19 of the old Act.

2010 3- L.W. 522

A. Ramadas Rao and OthersVs

M/s. J.P. Builders, rep. by its Proprietor and Others

C.P.C., Section 114/Review, Order 47, R.1, Recovery of Debts due to Banks and Fin-ancial Institutions Act (RDB Act) (1993), Securitisation and Reconstruction of Financial As -sets and Enforcement of Security Interest Act (SARFAESI Act), (2002), Specific Relief Act(1963), Section 16/Ready and Willing, Contract Act, Section 31/Contingent contract, Scopeof, Section 128/Suretys liability.

Review of judgment reported in 2010-2-L.W. 368 dismissed - It was contended thatthe apparent error in referring to the decree for specific performance without referringto the decree for specific performance being subject to mortgage has misled that Court tobelieve that the decree is a simple decree for specific performance and the Court had not

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noticed that the decree for specific performance is the decree for specific performanceis subject to mortgage in favour of the 3rd Defendant Bank.

Contention urged on behalf of review petitioners that the Court has exceeded itsjurisdiction under Section 96 of CPC by going into the questions, which were not pleadedand which were not the subject matter of any issue by formulating questions of law, which

did not arise in the first appeal and by interfering with the order of trial Court and withouteven an appeal against the conditional decree-Grievance of the review petitioners/Defend-ants 1 and 2 is that directions have been issued by the Court based on facts, which were notpleaded and by ignoring the statutory provisions of SARFAESI Act.

Held: Mere reference to the decree as decree for specific performance does not meanwe have diluted that part of the decree-Decree for specific performance, being subject tomortgage.

An error apparent on the face of the record must be such a patent error, which inone glance, can be detected without advancing long drawn argument on either side Wherethere are two possible views regarding interpretation or application of law vis-avis the par-ticular facts of a case, taking one view, even if it is erroneous, cannot be said to be an errorapparent on the face of the record - In a review application, this Court cannot sit as an ap-peal late Court and re-appreciate the entire evidence Various points raised for the reviewpetitioners are upon the merits of the matter and the Review Court, sitting as AppellateCourt and exercising Appellate jurisdiction, cannot go into the merits of our own findings.

2010 (3) CTC 692

F.J. Irani OthersVs

Hajee Sir Ismail Wakf Estate, rep. by its Trustees Others

Law of Pre-emption Ingredients of Pre-emption Rights of Parties Right of pre-emption is embedded on principle that strangers to one property should not acquire owner-ship of adjacent property which may render enjoyment of property already owned difficult Right of pre-emption is right of substitution Such right can be enforced only after thingin respect of which right of pre-emption is sought is sold and not before Such right existsonly between free holders -Pre-emptor should have vested ownership of one property to en-force right in respect of another property Tenants of property could also obtain right ofpre-emption by virtue of statues or contracts Pre-emption is weak pre-emption by virtueof statutes or contracts - Pre-emption is weak right and can be defeated by owner of prop-erty by any legitimate means Pre-emptor would loose his rights by acquiescence in sale ofsuch property by any positive act There are no equities in favour of pre-emptor.

Facts: JHI took on lease certain properties belonging to estate of one IS in 1940 with theobject of putting up cinema theatre. The lease was for 21 years and was to be renewed for a fur-ther period of 10 years. A theatre was built on portion of leased land. JHI died in 1949 and hisheirs succeeded his estate. Lease was to expire in 1971 after renewal and Lessor demanded pos-session at the time of expiry of renewed lease. In 1972 the Lessor filed a Suit against the lesseeand the said Suit was settled and by virtue of that a Lease Deed was executed in 1974. The saidLease Deed recognized the Lessor as the owner of the land as well as the building and the leaseexecuted for a period of 15 years commencing from 01.01.1972 ending on 31.12.1986. Entireland and building was leased out by such document. The lease contained a clause for renewal fora further period of 10 years. In 1992 lessees legal heirs filed a Suit for declaration that the build-

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ing constructed in the land belonged to them and sought declaration that certain clauses in theLease Deed were illegal in view of the Section 12 of Tamil Nadu City Tenants Protection Act.In 1984 the owner of the property offered to sell the property to the lessee and invited a quotation.The lessee failed to make an offer despite repeated reminders. In 1995 the Lessor invited fortenders and the lessee also participated and submitted a tender. The tenders were opened and the2nd Defendant had quoted much higher than the lessee and the property was sold to him but even

before the sale deed the lessee filed a Suit seeking enforcement of pre-emption right for the pur-chase of the said property.

Held: A survey of the law as propounded by the Supreme Court, over the past 60 years, fromShri Audh Singh upto Kumar Gonsusab, shows that the claim for enforcement of the right of pre-emption has to be tested keeping in mind, the following principles:

(i) It is a right of substitution and hence it arises only after the sale;

(ii) The right exists only as between freeholders. The pre-emptor should have yestedownership of the pre-emptive tenement, to be able to exercise the right of pre-emptionin respect of another property. However, the right of pre-emption may also be avail-able to tenants, by virtue of statutes or contract;

(iii) It is a very weak right, which can be defeated by all legitimate means, by theowner;

(iv) Acquiescence in the sale by any positive act, amounting to relinquishment,would result in the forfeiture of the right; and

(v) There are no equities in favour of the pre-emptor.

2010 (3) CTC 742

Secretary to Government, Home, Prohibition and Excise Department & OthersVs

S. Suresh Babu. & Others

Right to Information Act, 2005 (22 of 2005), Section 6 (2) - Information cannot bedenied by authorities on ground that informant has motive in getting information, to settleprivate score Bona fides of information seeker need not be looked into in view of Section6(2) of RTI Act Authorities bound to provide information.Facts: According to the first respondent about 400 people were in killed in Collachal Villageduring the Tsunami period due to the indiscriminate mining operation carried out by Indian RareEarth Ltd., a Central Government undertaking violating environmental and CRZ notifications. Itis the case of the First respondent that the workmen belonging to V.V. Minerals were assaultedby the employees of the IREL and consequently a Criminal Complaint was lodged with the Kar-ungal Police Station. It is the case of the Respondent that steps were being taken to withdraw theCriminal Complaint made against the employees of IREL without notice to the defacto complain-ant/respondent. Hence, the Respondent sought for certain information regarding, which wasdenied by the Information Officer. On Appeal the 4th Respondent passed an order directing thenpetitioner to disclose the information sought for by the Respondents. Challenging the same thepresent Writ petition has been preferred by the Government.

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Held: In the Writ petition it is this order which is under challenge. Though it was stated thatthe second respondent was motivated in seeking information and he was set up by M/s. V.V.Minerals to settle local scores, this Court is not inclined to go into the bona fide of the informa-tion seeker in the light of Section 6(2).

2010 (3) CTC 769

Pradeep Kumar and anotherVs

Balasundaram

Code of Civil Procedure, 1908 (5 of 1908), Order 9, Rule 13 Suit for Recovery ofmoney Ex parte decree passed and later set aside Ex parte decree passed for second time Application to set aside ex parte decree dismissed Order challenged in Appeal Appealalso dismissed Revision against that order Earlier when Suit was posted for trial, an exparte decree was passed and same was set aside and after affording several opportunities todefendants, Suit was again decreed ex parte No evidence to show that 1 st defendant wasdecree ex parte No, evidence to show that 1st defendant was suffering from any illness When Second Application is filed under Order 9, Rule 13, conduct of party has to be takennot of - In view of judgment of Supreme Court reported in Ramesh v. Ratnakar Bank Ltd.,AIR 2001 SCW 4759, defendants directed to deposit a sum of Rs. 2,00,000/- along with costsof Suit within eight weeks Plaintiff permitted to withdraw costs of Suit Non-complianceof condition would restore ex parte decree and plaintiff can proceed with execution CivilRevision Petition disposed of.

Facts: In a money Suit, ex parte decree was passed in the second time. The Application filed bythe defendants to set aside the ex parte decree was dismissed and the defendants challenged thesaid order by way of Civil Revision that the defendants deposited a sum of Rs. 2,00,000/- alongwith costs of the Suit and the plaintiff was permitted to withdraw the costs.

Held: While considering the Petition under Order 9, Rule 13, C.P.C. to set aside the ex partedecree, the Court has to consider the conduct of the party who filed the Petition. In the instantcase, admittedly there was an earlier ex parte decree, on Petition, that was set aside by the Courtbelow, subsequently, the case was posted for trial, P.W.1 was examined in chief, continuouslythere was nko representation for the petitioners/defendants to cross-examine P.W.1, that was re-corded by the Court below. Before passing the ex parte decree, sufficient opportunity was givento the petitioners. It is not in dispute that there ware two petitioners/defendants. According to thepetitioners, the second petitioner was ill and admitted in the hospital, however, in order to provethe alleged illness of second petitioner, no supporting document was produced by the petitionersbefore the Court below. Even if the second petitioner was bed-ridden or taking treatments as in-patient, nothing prevented the first petitioner in appearing and giving instructions to his counsel,so as to cross-examine the witness. When the second petition was filed under Order 9, Rule 13,C.P.C., the conduct of the party has also to be taken into consideration.

On the aforesaid facts and circumstances, I am of the view that the defence raised by thelearned counsel appearing for the petitioners that the act of the petitioners is neither willful norwanton cannot be accepted. In the light of the decisions rendered by the Honble Apex Court andother Courts, to meet the ends of justice, I find it just and reasonable to pass a conditional order,accordingly, as a condition precedent, the petitioners are directed to deposit a sum of Rs.2,00,000/- (Rupees Two lakhs only) to the credit of the Suit in O.S. No. 64 of 2004 before theCourt below within eight weeks from the date of receipt of a copy of this order, apart from payingthe costs of the Suit and the respondent will be entitled to withdraw the costs of the Suit to be de-

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posited. If the conditional order is complied with, this Civil Revision Petition will be allowedand in case if the conditional order is not complied with, this Civil Revision Petition shall standsdismissed without any further reference to this Court and the respondent will be at liberty to pro-ceed with the E.P.

2010 (3) CTC 785

JayakumariVs

Balachander

Hindu Marriage Act, 1955 (25 of 1955), Section 13(1)(i-a) cruelty what is Notdefined in Act- No strait jacket formula or hard and fast rule to constitute act of cruelty Has to be judged on facts of each case taking into account surrounding circumstances Rel-evant factors are status of life, standard of living, family back ground and society in whichparties are accustomed Particular behavior may amount to cruelty in one set of circum-stances and may not so in other set of circumstances.

Facts: The wife, who suffered a divorce decree in a Petition filed by the husband one theground of cruelty, filed the Appeal attacking the various findings of the Trial Court. It wasmainly contended by the wife that she was in fact the one who was subject to cruelty at the handsof her husbands relatives. The husband defended the order of divorce on he ground that theCriminal case filed by the wife ended in his favour on Appeal and the allegations of the wife can-not be believed as she did not choose to give timely Complaints.

On Appeal, held: Then term cruelty consists of unwarranted and unjustifiable conduct on thepart of defendant causing other spouse to endure suffering and distress thereby destroying peaceof mind and making living with such spouse unbearable, completely destroying real purpose andobject of matrimony. It would of course be difficult to define the expression cruelty. Therecannot be any hard and fast rule in interpreting the same. As pointed out, the word cruelty can-not be put in a strait-jacket of judicial definition. It must be judged on the facts of each case hav-

ing regard to the surrounding circumstances. Whether one spouse is guilty of cruelty is essen-tially a question of fact and previously decided cases have little, if any, value. The term crueltyis not defined in the Act. It is to be judged by taking into consideration the status of life, thestandard of living, the family background and the society in which the parties are accustomed tomove because particular behaviour may amount to cruelty in one set of circumstances and maynot be so in other set of circumstances.

Practice and Procedure Binding nature of decision in Criminal Case in Civil inCivil action Imposition of liability Standard of proof required in Civil and CriminalCases is widely different Judgment of acquittal in a Criminal Case is irrelevant in a CivilCase based on cause of action Findings of Criminal Court not binding in Civil action Only in exceptional cases circumstances resulting in acquittal would assume relevance Ina Civil Suit, Defendant can be held liable even on preponderance of probabilities or actiondecided on mere consideration of burden of proof in the absence of other evidence InCriminal Cases proof required is beyond reasonable doubt and accused also entitled to be-nefit of doubt Case law discussed.

2010 (3) CTC 819

Oriental Insurance Company Limited, SalemVs

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Minor Jayapriya, rep. Others

Motor Vehicles Act, 1988 (59 of 1988), Section 166 Constitution of India Appealby Insurer against compensation awarded in a case of fatal accident Question regardingvalidity of adoption Contention that there cannot be a valid adoption among Christians is

not in consonance with Constitution Cannon Law provides for adoption - There is no em-bargo for adoption amongst Christians In any event, validity of adoption cannot be chal-lenged in Motor Accident proceedings, which is a summary in nature Compensation re-duced C.M.A. partly allowed.

Facts: In a Civil Miscellaneous Appeal arising from a Motor Accident case, Question arosewhether there can be a valid adoption amongst Christians. High Court held that the Canon law isapplicable and that there is no embargo for adoption amongst Christians and also held that in amotor accident proceeding, which is a summary in nature, the validity of adoption cannot be in-vestigated in detail.

Held: In our considered view, the stand taken by the learned counsel for 6 th Respondent thatthere cannot be valid adoption among the Christians is not in consonance with the Constitutionand the various judicial pronouncements. As pointed out by the learned Single Judge, the CanonLaw, which is applicable to Jagadambal and 6 th Respondent provides for adoption if the CivilLaw of the Country permit the same. In the light of Sections 40 and 41 of Juvenile Justice Act,we do not find any embargo for adoption. In any event, the proceeding, being summary in nature,the validity or otherwise of the adoption needs no further elaboration.

2010 (3) CTC 890

Vijay Kumar Sharma @ManjuVs

Raghunandan Sharma @ Baburam and others

Arbitration and Conciliation Act, 1996 (26 of 1996), Section 7 Valid ArbitrationAgreement What constitutes There must be a written agreement by parties submittingto Arbitration, all or certain disputes which have arisen or may arise in respect of a definedlegal relationship, whether contractual or not When there is no document signed byparties nor exchange of letters, telex, telegrams referring to or recording an ArbitrationAgreement there is no Arbitration Agreement as defined under Section 7 Provision in aWill of a Testator merely constitutes his wish that disputes should be settled by Arbitration It cannot be construed as an Arbitration Agreement within the meaning of Section 7 ofAct.

Facts: Pending dispute between brothers, one alleging that their father had left behind a Willand the other contending that the Will was fabricated and that he was entitled to partition, an Ap-plication under Section 8 of the Arbitration and conciliation Act, 1996 was filed by the executorsof the Will alleging that the deceased had made a declaration that the disputes should be referredto Arbitration. The same was allowed by the Trial Court and an Appeal was filed to the HighCourt. Pending the Appeal, the named Arbitrator under the Will withdrew himself and an Ap-plication was filed under Section 11(6) of the Act for appointment of an independent Arbitrator.The same is under challenge before the Apex Court.

Held: In this case, admittedly, there is no document signed by the parties to the dispute, nor anyexchange of letters, telex, telegrams (or other means of telecommunication) referring to or record-

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ing an Arbitration Agreement between the parties. It is also not in dispute that there is no ex-change of statement of claims or defence where the allegation of existence of an ArbitrationAgreement by one party is not denied by the other. In other words, there is no Arbitration Agree-ment as defined in Section 7 between the parties. In Jadgish Chander v. Ramesh Chander, 2007(5) SCC 519, this Court held:

The existence of an Arbitration Agreement as defined under Section 7 of theAct is a condition precedent for exercise of power to appoint an Arbitrator /Arbitral Tribunal, under Section 11 of the Act by the Chief Justice or hisdesignate, It is not permissible to appoint an Arbitrator to adjudicate the disputesbetween the parties, in absence of an Arbitration Agreement of mutual consent.

2010 2 MLJ (Crl) 1211

V.D. GrahalakshmiVs

Narayanan Venuprasad Menon

Code of Criminal Procedure, 1973 (2 of 1974) Section 203-Dismissal of privatecomplaint -Matrimonial dispute between petitioner and her husband Application beforeFamily court for dissolution of marriage Allegation of previous marriage betweenpetitioner and respondent-private complaint filed against respondent alleging offences offorgery and cheating by impersonation Dismissal of complaint by trial court Revisionpetition against order of trial Court dismissing complaint given by petitioner- Matrimonialdispute cannot be lightly viewed just like that of any other dispute when s serious offenceof forgery is alleged which involves future and modesty at its very inception on the groundthat some witnesses have been omitted procedure contemplated under Sections 200,201203 and 204 are all only means to justice and they cannot be termed as substantiveprovisions Too technical approach cannot be adopted where serious offence is alleged-

petition allowed.

Held: A matrimonial dispute cannot be lightly viewed just like that of any other dispute. Whena serious offence of forgery is alleged which involves the future and modesty of a woman, onsuch a technical ground that some witnesses have been omitted to be cited, statements underSection 201Cr.P.C. have not been recorded and documents have not been produced, thecomplaint cannot be foreclosed at its very inception. In my considered opinion, the procedurecontemplated under Sections 200,201,203 and 204 Cr. P.C. are all only means to justice and theycannot be termed as substantive provisions. After all procedure is the handmaid of justice.Therefore, a too technical approach cannot be adopted in case of this nature where such seriousoffence is alleged.

2010 2 MLJ (Crl) 1231

SundareswaranVs

Inspector of Police, Puzhal

Code of Criminal Procedure, 1973 (2of 1974), Section 439- Indian penal code (45of1860), Section 439 Indian penal Code (45 of 1860), Section 376 Tamilnadu prohibition ofHarassment of Women Act (44 of 1998), Section 4 Juvenile Justice (Care and protection of

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Children) Act (56 of 2000), Section 23 - petition for bail Petitioner none else than father ofvictim girl, accused of shocking and heinous crime of raping his own daughter - Pervertand degrading act of petitioner resulted in unbearable mental torture and agony not only tovictim but also to victims mother and other close relatives Heinous crime alleged to havebeen committed by petitioner to be dealt with iron hand Considering seriousness andgravity of offence alleged, it is not desirable to release petitioner on bail-Petition dismissed.

Held: The petitioner, who is none else than the father of the of the victim girl, has beenaccused of shocking and heinous crime of raping his own daughter. The sanctity of father anddaughter relationship got stained due to the lustful acts of the petitioner causing indelible scar, notonly physically but also emotionally, on the victim. The custodian of the trust has betrayed thetrust reposed on him.

The heinous crime alleged to have been committed by the petitioner is to be dealt with aniron hand. This Court is also of the considered view that the victim as well as her mother, whohas given the complaint, need protection by the police. The release of the petitioner woulddefinitely hamper the investigation and the petitioner may likely to cause serious threat and fearto the victim and her mother resulting in tampering he evidence. Considering the seriousness andgravity of the offence alleged against the petitioner, it is not desirable to release the petitioner onbail and accordingly, this petition is hereby dismissed.

2010 2 MLJ 1240

M. Mohan and AnotherVs

State of Tamil Nadu by Inspector of Police, Coimbatore

Indian Penal Code (45 of 1860), Sections 498-A, 306, 304-B-Dowry Prohibition Act(28 of 1961), Section 4-Dowry death Cruelty-Proximate and live link between effect of

cruelty based on dowry demand and consequential death should be proved by prosecution In present case, no evidence to shows ill-treatment of deceased for demand of dowry soonbefore her death Evidence only show some misunderstanding between accused anddeceased Same does not lead to inference that accused had committed offences underSection 304-B, 306 and 498-A IPC and Section 4 of Dowry Prohibition Act Conviction andsentence imposed on accused set aside.

Held: The Trial Court had proceeded on the basis that even at the time of her marriage, therewas problem regarding demand of dowry, although there was no evidence in this behalf. Inrelation to dowry death, the circumstances showing the existence of cruelty or harassment to thedeceased, though cannot be restricted to a particular instance or period of time, but at the sametime, it shall not be stretched to any period. In the present case, even if it is assumed that therewas a demand of motor cycle and a house property, the evidence clearly showed that the saiddemand had been made long before the death and there is no evidence to show that she wastreated with cruelty or harassment with such demand during the period between the birth of thechild and till her tragic end. In such circumstances, no presumption could be raised so as to baseconviction under Section 304-B of IPC.

In the resent case, nothing is brought out from the evidence of PW.2 to PW.4 to bringhome the charge under Section 498-A and 306 of IPC on record and even regarding the lastincident, there were two inconstant versions of PW.4, the uncle of the deceased and PW.2 andPW.3 and as such, no credence can be attributed to their evidence. The necessary ingredients for

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holding the Appellants guilty of commission of the offence under Section 306 and 498-A of IPCare totally absent in this case and therefore, conviction even under Section 306 and 498-A of IPCis not warranted.

2010 -1- L.W.(Crl) 697

P.S. SethuramanVs

P. Elavazhagan

Criminal revision filed under Section 397 and 401 Cr.P.C., against the order passed bythe learned Judicial Magistrate, Ariyalur, in Crl.M.P.No, 4782 of 2009 in C.C.No.259 of 2007dated 09.02.2010.

Negotiable Instruments Act,Section 147 (Amendments introduced with effect from6.2.2003 making he offence as compoundable offence), Probation of Offenders Act, Section3, Criminal P.C., Section 361/Compounding of offence.

Revision was preferred against dismissal of petition filed before Magistrate by theAccused under Section 258 r/w 320 Cr.P.C with a prayer to treat the compromise memofiled by parties dated 07.10.2008 as compounding petition and to stop all the proceedings ofthe case and to discharge the accused.

Question which arises for consideration is Whether the court can terminate theproceedings acting upon the payment made in full due under the cheque during thependency of the criminal proceeding, in the absence of any request for withdrawal or forcompounding of the offence by the complainant?.

Held: Receipt of the cheque amount has not been denied by the respondent herein Butstill, the respondent has not come forward for settlement with the accused If the trialCourt comes to the conclusion that the accused is guilty, then it is open to the learned

Judicial Magistrate to take into consideration about the payment made by the accused andalso take into consideration the other factors and to show leniency while sentencing theaccused Even the learned Judicial Magistrate may apply the relevant provision underSection 3 of the Probation of Offenders Act and admonish him, subject to Section 361 ofCr.P.C.

Probation of Offenders Act, Secton 3-See Negotiable Instruments Act, Section 147(Amendments introduced with effect from 6.2.2003 making the offence as compoundableoffence).

Criminal P.C., Section 361/Compunding of offence See Negotiable Instruments Act,Section 147 (Amendments introduced with effect from 6.2.2003 making the offence ascompoundable offence), Probation of Offenders Act, Section 3.

Held: As per the petition filed by the accused, the learned counsel for the respondent receiveddemand draft and acknowledged it on the advise of the learned Magistrate. Therefore, it is madeclear, though the complainant had been willing to compromise the matter, at a later stage hadchanged his mind after receiving a sum of Rs. 4.5 lakhs out of the cheque amount of Rs. 50 lakhs.The remaining amount of Rs. 50,000/- also was received as demand draft. The complainant is notdenying the receipt of the amount of Rs. 5 lakhs which is the total cheque amount. But, thecomplainant is not coming forward either to withdraw the complainant or to compound theoffence against he accused.

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2010 -1- L.W.(Crl) 703

DhivanVs

State rep. by The Inspector of Police, Vadalur

Criminal P.C.,Section 439/Petition (Crl.O.P.) praying for Anticipatory Bail Re-arrest of accused who is on Bail granted by Magistrate whether permissible on the groundof Section 302, I.P.C., being added in the Final Report- Prayer for grant of AnticipatoryBail, Scope,

I.P.C., Section 323, 506(ii), 201, (302).

Case registered under Ss.323, 506(ii) and Bail was granted by Magistrate Whenfinal report was submitted, Section 302 of IPC was also added and according to thepetitioner, he is again sought to be arrested by the respondent police not withstanding thefact that he has already been granted bail by the learned Magistrate and filed the Crl.O.P.

Question considered, whether the respondent police has got power to re-arrest thepetitioner at this stage though he is enjoying he benefit of order of bail granted by thelearned Magistrate?- Held: simply because a penal provision is added in the case in respectof a serious non-bailable offence, the bail granted earlier shall not automatically standcancelled and therefore, the police shall not have the power to re-arrest the accused untilthe bail granted earlier is cancelled by way of a positive order by the appropriate court.

Since the bail granted to the petitioner earlier by the learned Magistrate has not sofar been cancelled, the apprehension of arrest at this stage when the petitioner is very muchon bail is baseless and so, the question of granting anticipatory bail does not arise Criminal Original Petition dismissed with observations.

I.P.C., Sections 323, 506 (ii), 201, (302), - See Criminal P.C., Section 439/Petition(Crl.O.P.) Re-arrest of accused who is on Bail, granted by Magistrate whether permissibleon the ground of Section 302, I.P.C. being added in the Final Report Prayer for grant ofAnticipatory Bail , Scope.

2010 -1- L.W.(Crl) 707

P. ThangarajuVs

State Represented by its Deputy Superintendent of Police, Dharmapuri

I.P.C.,Section 409, 420, 468, 120-B.

Prevention of Corruption Act (1988), Sections 13(1) (c) , 13(2), 19(3), Guidelinesissued by the Director of Rehabilitation by his proceedings in D.O.Rc.No. H/7728/94 dated04.10.1995, In respect of the procedures to be followed for the verification of the identity ofthe beneficiary, Scope,

Criminal P.C.,Section 397(1)(2)/Revision against order of Special Judge declining todischarge Revision Petitioner (6th Accused), Objection for maintainability of revision

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considered, Interlocutory order in Section 397, Crl.P.C., what is Held: settled rule ofinterpretation is that when there is a conflict between two enactments, the non-obstanteclause to the extent of such conflict may make one Act to have over-riding effect on theother.

In the PCA, there is no such total exclusion of the provisions of the Code of

Criminal Procedure in respect of revision There is no conflict between Section 19(3)(c) ofthe PCA and Section 397(2) of the Code Simply because non-obstante clause is found bothin S.11(2) of the PCA and in S. 19(3)(c) of the PCA should have the same extended meaningas interpreted in Madhu Limayes case by the Honble Supreme Court, and followed by thisCourt in V.R. Nedunchezhians case.

To conclude, an order declining to discharge an accused under the PCA is anintermediate order against which revision lies.

Prior to 04.10.1995, there were no Guidelines issued by the Director ofRehabilitation in respect of the procedures to be followed for the verification of the identityof the beneficiary Such Guidelines were issued by the Director of Rehabilitation by hisproceedings in D.O.Rc.No. H/7728/94 dated 04.10.1995 Procedure contemplated in theguidelines dated 04.10.1995 cannot be made applicable to the facts of the present case sincethe 3rd instalment was sanctioned by the Revenue Divisional Officer as early as on05.03.1994 itself Thus, the Guidelines dated 04.10.1995 cannot be in any manner madeapplicable to the facts of the present case.

In this case, assuming that the petitioner was also a party to the breach of theprocedures contemplated in the matter of sanction of the loan under the Scheme, that willnot amount to any of the offences as stated in the final report There is no material onrecord to frame charges against the petitioner - Petitioner is entitled for discharge from thecase Revision allowed.

Prevention of Corruption Act (1988), Sections 13(1)(c) , 13(2), 19(3), Guidelines

issued by the Director of Rehabilitation by his proceedings in D.O.Rc.No H/7728/94 dated04.10.1995, In respect of the procedures to be followed for the verification of the identity ofthe beneficiary, Scope- See I.P.C., Sections 409, 420, 468, 120-B

Criminal P.C., Section 397(1)(2) /Revision aganint order of Special Judge decliningto discharge Revision Petitioner (6th Accused), Objection raised for maintainabilityconsidered, Interlocutory order in Section 397, Crl.P.C., what is See I.P.C., Section 409,420, 468, 120-B, Prevention of Corruption Act (1988), Sections 13(1)(c), 13(2), 19(3),Guidelines issued by the Director of Rehabilitation by his proceedings in D.O.Rc.No.H/7728/94 dated 04.10.1995, In respect of the procedures to be followed for the verificationof the identity of the beneficiary, Scope.

2010 -1- L.W.(Crl) 748

SrinivasanVs

The State of Tamil Nadu, rep. By Sub Inspector of Police, Dindivanam

I.P.C.Section 326, 452/Fracture, nature of, Sentence, Considerations In this case,P.W.6, Dr. Sahu who was examined on the prosecution side would depose before the Courtthat he was conversant with the handwriting and signature of the Doctor who gave

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treatment and through him Ex. P3, the wound certificate was marked The core questionarises as to what was the actual nature of the grievous injury.

It is one thing to say that there was fracture and yet it is another, to point out clearlywhat was the gravity of the fracture There are various types of fractures, like simplefracture, compound fracture, etc. Unless in detail the nature of the fracture is found

established, this Court cannot have a clear view of it in its minds eye about the nature ofthe fracture.

Fact is that for the offence under Section 326 IPC, even life imprisonment iscontemplated, and it all depends upon the gravity of the grievous inflicted on a person withdangerous weapon Here, technically alone, it is found proved that the injured sustainedfracture - Hence I would like to agree with the submission made by the learned counsel forthe petitioner that the sentence of one month imprisonment, if imposed, that would meet theends of justice.

Accordingly, this revision is partly allowed by reducing the two sentences of sixmonths rigorous imprisonment imposed under Section 452 IPC as well as under Section 326IPC, to one month simple imprisonment Revision partly allowed.

2010 -1- L.W.(Crl) 751

PeriyasamyVs

Lakshmi

Criminal P.C., (1973), Section 125,128 Revision against order of MagistrateImposing sentence of Rigorous Imprisonment for 12 months on the petitioner (husband), inthe Crl.M.P filed under Section 128 for execution, pursuant to an order passed in the MC

filed under Section 125, seeking maintenance Held: the petition which culminated in theimpugned order was filed only to enforce the order of maintenance as provided in Section128 of the Code and it was not filed under Section 125(3) of the Code. It is well settled thatunder Section 128 of the Code while enforcing an order of maintenance, the learnedMagistrate is not empowered to impose any sentence on the defaulter The learnedMagistrate is empowered only to enforce the same as provided for recovery of fine in theCode Order impugned in this revision is set aside; and Crl.M.P. is remitted to the learnedJudicial Magistrate, Bhavani, Erode District to enforce the order as provided in Section128.

In the petition filed under Section 125, Magistrate passed an order directing the petitioner(husband) herein to pay a sum of Rs. 1,000/- per month to the respondent (wife) herein asmaintenance. On the ground that the petitioner failed to pay the maintenance amount for 37months, the respondent filed Crl.M.P.No.2971 of 2008 before the learned Magistrate underSection 128 of the Code for execution. On appearance, the respondent requested the learnedMagistrate to grant time to pay the amount. Though time was granted, the petitioner did not paythe amount. Finally, the learned Magistrate by order dated 25.03.2009 imposed a sentence of 12months of Rigorous Imprisonment. Challenging the same, the petitioner is now before this Courtwith this revision.

Held: Admittedly, the petition which culminated in the impugned order was filed only toenforce the order of maintenance as provided in Section 128 of the Code and it was not filed

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under Section 125(3) of the Code. It is well settled that under Section 128 of the Code whileenforcing an order of maintenance, the learned Magistrate is not empowered to impose anysentence on he defaulter. The learned Magistrate is empowered only to enforce the same asprovided for recovery of fine in the Code. But, the learned Magistrate has passed an order ofsentence as though she was dealing with a petition under Section 125(3) of the code. It isneedless to say that under Section 1259(3) of the Code, there ware various constraints like, the

limitation, etc., to entertain a petition; whereas under Section 128 of the Code, obviously, there isno such limitation provided for enforcing the order. It is not as though a wrong provision hasbeen quoted by the respondent. Even during the argument, it was understood by the parties thatthe petition was filed only under Section 128 of the Code, which is evidence from the impugnedorder itself.

The powers of the Magistrate under Section 125 and 128 of the Code are distinguishable.Therefore, a petition filed under Section128 of the Code cannot be treated as a petition filed underSection 125 of the Code. Now, the learned Magistrate has allowed the petition therebyput an endto the further proceedings. The order impugned in this revision petition not only has causedprejudice to the petitioner, but also deprives the respondent inasmuch as she has claimed arrearsof maintenance for 37 months, whereas the order relates only to 12 months. Thus, the respondentalso stands to lose the arrears of maintenance for 25 months. Thus, the impugned order is not atall sustainable.

Revision petition is allowed; the order impugned in this revision is set aside; andCrl.M.P.No. 2971 of 2008 is remitted to the learned Judicial Magistrate, Bhavani, Erode Districtto enforce the order a provided in Section 128 of the Code of Criminal Procedure.

2010 -1- L.W.(Crl) 753

Pooluthevar & 4 othersVs

The State rep. by the Inspector of Police, Tbhoothukudi

I.P.C.,Section 307, 149, 148, 99, 103, 105/Private Defence, Plea as to, Scope-Right ofprivate defence is not available unless a particular act would cause reasonable apprehensionof death or grievous hurt.

Basic principle of doctrine of the right of private defence is that when an individualor his property is faced with danger and immediate aid from the State machinery is notreadily available, then the concerned individual is entitled to protect himself and hisproperty.

Considering the nature of the injuries sustained by PW1, lenient view can be takenin awarding sentence against the accused and under the said circumstances, the accused 1 &2 can be sentenced to undergo six months rigorous imprisonment under Section 307 redwith 149 of the Indian Penal Code and the accused 3 to 5 can be sentenced to undergo oneyear rigorous imprisonment under Section 307 With the above modification, the presentcriminal appeal can be allowed in part.

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