SOME IMPORTANT DECISIONS REPORTED IN APRIL, 2016
Ad-interim relief _ Sealing of premises _ Sealing can be justifiably granted in order to prevent/ avert an attempt of dissipation / removal of movables or otherwise _ Order of sealing has to have nexus with the object, which it seeks to achieve and order should demonstrate that sealing was necessary for the said purpose. (See 2016 (4) LJSOFT (GOA) 117)
Anticipatory bail _ Daughter-in-law of complainant walking on the road fell in the duct of drainage and died _ Underground drainage work was going on and no protection measure was taken by the accused and other accused to cover that duct _ However this is not a case where custodial interrogation is required _ Anticipatory bail granted. (See 2016 (4) LJSOFT 5)
Anticipatory bail _ Rape case _ Consent._ Applicant and prosecutrix aged 24 years were known to each other and were in love _ Withdrawal of the promise of marriage is the reason to file such complaint _ Relationship was out of mutual consent _ Considering the age of the prosecutrix, the applicant is granted pre arrest bail. (See 2016 (4) LJSOFT 3)
Arbitration proceedings _ Appointment of arbitrator _ Right to appoint an arbitrator solely vested in the respondent _ Applicants could not have suggested any names of proposed arbitrators in the notice issued by applicants _ Said notice itself was not in accordance with the arbitration agreements and was defective. (See 2016 (4) LJSOFT 80)
Arbitration proceedings _ Interim reliefs _ Relief of injunction against a party who is not party to the Arbitration agreement _ Order u/s 9 can be made if prima facie case is made out that subject matter or part of subject matter of Arbitration is with the third party and the third party has no independent right in respect of the said subject matter. (See 2016 (4) LJSOFT (AUR) 76)
Back-wages _ Setting aside of dismissal order _ Back-wages cannot be granted as a matter of course or as a matter of natural consequence _ Claimant/ workman has to lead evidence to establish that he attempted to acquire a job pursuant to his dismissal and despite his efforts could not acquire any employment or source of earning. (See 2016 (4) LJSOFT (AUR) 155)
Cheating _ Fact that a cheque issued has been dishonoured by itself does not constitute an offence of cheating _ Dishonour of postdated cheque by itself does not amount to cheating _ Respondents specifically replied that they have bonafide intention to refund the amount and have no intention to cheat the complainant and they would repay the entire amount within the stipulated period _ Process was rightly quashed. (See 2016 (4) LJSOFT 111)
Documentary evidence _ Unless the execution of document is proved the document cannot be admitted in evidence _ When there is a defence that the original document itself was forged, it becomes necessary for the party relying on the document to prove the execution and only after that the burden shifts on the party making allegation of forgery _ Only after proof of execution the party making allegation of forgery needs to prove forgery _ When execution of document is proved, the burden shifts on the person, who is alleging that it was a forged document. (See 2016 (4) LJSOFT (AUR) 58)
Dishonour of cheque _ Accused expired.during pendency of appeal against conviction and the appeal was abated _ Amount of compensation is to be recovered by way of auction and sale of property of deceased accused u/s 421 and 431 of Cr.P.C. _ Property owned by original accused which came into the hands of petitioner by virtue of will deed is received by the petitioner with all liabilities attached therewith _ Amount of fine and compensation is recoverable from the said property. (See 2016 (4) LJSOFT 7)
Dishonour of cheque _ De novo Trial _ Non-speaking order _ No observation made as to whether the case in question was tried as summary or summons case which is relevant consideration _ Impugned order set aside and the matter is remitted back. (See 2016 (4) LJSOFT (AUR) 89)
Dishonour of cheque _ Offences by companies _ Resignation _ If the documents relied upon by accused are beyond suspicion of doubt, if considered the accusation against accused cannot stand, the High Court can consider such documents in exercise of jurisdiction u/s 482 of Cr.P.C.. (See 2016 (4) LJSOFT 124)
Dishonour of cheque _ Offences by companies _ Resignation _ When the correctness of the contents of Form No.32 is disputed and when averments in the complaint are, prima facie, sufficient to prove the alleged offence, the inherent powers of the High Court u/s 482 of Cr.P.C. could not be exercised to quash the prosecution. (See 2016 (4) LJSOFT 1)
Dishonour of cheque _ Partnership firm _ For maintaining the prosecution u/s 141 arraigning of a company as an
accused is imperative _ Complaint not maintainable as against the respondent-accused and in his capacity individual capacity. (See 2016 (4) LJSOFT 83)
Dishonour of cheque _ Production of document _ Remedy of filing a case u/s 138 was brought into, with a view to expedite the payments to the business transactions and to remove the delay in getting payment in the business transactions _ To treat the same as a Criminal Case stricto sensu would be a misnomer _ Law that the documents can be filed till the delivery of judgment would be applicable. (See 2016 (4) LJSOFT (NAG) 11)
Dishonour of cheques _ Trial for more than one offence _ Separate notice for every complaint was issued _ Issuance of different notices, may be on the very same day, has given separate cause of action to the complainant in respect of dishonour of each case _ Application was rightly dismissed. (See 2016 (4) LJSOFT (AUR) 140)
Divorce _ Earlier petition withdrawn without the leave of Court _ Petition for divorce based on incidents occurring subsequent to the earlier Petition is maintainable. (See 2016 (4) LJSOFT (AUR) 10)
Election petition _ Determination of the question of citizenship has to be done by the Authority appointed under the Citizenship Act _ Such issue cannot be gone into in such proceedings. (See 2016 (4) LJSOFT (GOA) 114)
Electronic record _ Call Data Records _ Date of incident is 2.4.2007 and the amendment of Section 65 of Evidence Act came into effect from 17.2.2000 _ Mandatory for the prosecuting agency to produce the certificate in terms of Section 65-B obtained at the time of collecting document (CDR) without which the secondary evidence pertaining to electronic record is inadmissible. (See 2016 (4) LJSOFT 87)
Eviction proceedings _ Bonafide need undergoes change with passage of time _ Need as pleaded in the earlier proceedings would not disentitle the landlord to initiate fresh proceedings after passage of time. (See 2016 (4) LJSOFT (NAG) 138)
Eviction proceedings _ Respondent occupying shop premises belonging to the petitioner - Corporation _ Rent Act is not applicable to property belonging to local body _ Civil suit filed by occupant for declaration that he is tenant under Maharashtra Rent Control Act not maintainable. (See 2016 (4) LJSOFT (AUR) 54)
Execution of compromise decree _ Executing Court had already granted injunction against the Judgment Debtor from creating any third party rights _ Consent decree was already registered which amounted to public notice _ Obstructionists could not have claimed before the Executing Court that they were bonafide purchasers without notice . (See 2016 (4) LJSOFT 63)
Family pension _ Marriage during the life time of a spouse could be accepted only if the marriage is permissible under the personal law applicable to both the parties to the marriage _ Marriage by a Hindu with a spouse living at the time of the marriage is held to be null and void _ Rule 116(6)(a)(i) of the Maharashtra Civil Services (Pension) Rules does not provide pension to a such woman. (See 2016 (4) LJSOFT (NAG) 85)
Faulty investigation _ Cannot result into acquittal of the accused otherwise the Courts and prosecution agencies would be at the mercy of Investigating Officers, which may result into shaking the confidence of the people not merely in law enforcing agency but also in the administration of justice. (See 2016 (4) LJSOFT 42)
Food adulteration _ Offences by companies _ Complainant failed to make necessary averments in the complaint vis-a-vis the applicants that they are responsible for the day-to-day affairs of the company _ In absence of any material to show that there exist prima facie case nexus between the applicants and alleged crime, it would be difficult to hold that the applicants can be prosecuted _ Criminal proceedings against the applicants quashed. (See 2016 (4) LJSOFT (NAG) 115)
Further investigation _ Police had not carried out proper investigation _ Necessary to direct further investigation in order to find out the truth and to file Supplementary Charge-Sheet u/s 173(8) of Cr.P.C. _ Mere fact that there is delay in making such application is no ground to reject further investigation if in the interest of substantial cause of justice, such investigation is essential. (See 2016 (4) LJSOFT 6)
Insufficient stamped document _ Admissibility of document _ Objection ought to have been raised when the said document was tendered in evidence by the plaintiff _ Objection could not have been raised at the time of hearing of the suit or before the lower appellate court. (See 2016 (4) LJSOFT 60)
Murder _ Postmortem examination _ Doctor had no experience or training to conduct postmortem in case of throttling _ He was not competent to perform postmortem _ Opinion given by the said doctor is inherently defective _ If expert evidence is defective Court cannot substitute its opinion for that of the doctor _ Factum of homicidal death is not established by legal, proper and convincing evidence _ Order of conviction and sentence set aside. (See 2016 (4) LJSOFT (AUR) 95)
Mutation entries _ Mere entries in the record of rights do not make or unmake the title to the property _ Entries in the record of rights is presumptive evidence and the said presumption can be displaced by better evidence. (See 2016 (4) LJSOFT 73)
Nature of agreement _ Lease or licence _ In terms of Section 107 of T.P. Act lease can be created only by a registered document _ Agreement in question being not registered it does not meet the requirement of Section 107 of T.P. Act and therefore is not a lease within the meaning of Section 105 of T.P. Act. (See 2016 (4) LJSOFT 28)
Offences under MCOC Act _ Section 3(4) can be invoked if member of syndicate commit cognizable offence jointly _ However if cognizable offence is not committed and though he is known as a member of organized crime syndicate, cannot be prosecuted and charge sheeted for being a member of organized crime alone. (See 2016 (4) LJSOFT 144)
Principle of res-judicata _ Issue of desertion taken by the court in the parallel proceedings filed u/s 9 of H.M. Act between the same parties _ Principles of res-judicata u/s 11 of CPC would apply _ Findings on desertion which has attained finality was binding not only on the parties but also on the judge in the petition filed for divorce by the appellant. (See 2016 (4) LJSOFT 30)
Principles of res judicata _ Suit for partition dismissed for want of prosecution _ Subsequent suit filed by legal heirs _ Cause of action for seeking partition was recurring in nature _ Right to file suit for partition continue as long as the property continues to be jointly held. (See 2016 (4) LJSOFT (NAG) 151)
Production of additional documents _ Provisions of Order 7 Rule 14 of CPC applies to production of documents by a plaintiff and not by the defendant _ It has to be construed liberally and not in a pedantic way _ Provision is discretionary and it has to be operated in a manner that Court is able to ascertain the truth and put an end to the controversy, not on technical but on substantive grounds. (See 2016 (4) LJSOFT (GOA) 22)
Protection order _ Not necessary that on the date of filing such application the parties should be actually residing or living together _ Words “has lived together at any point of time” necessarily cover even the past co-habitation or past living together. (See 2016 (4) LJSOFT 13)
Quantum of sentence _ Offences at the material time were punishable only with fine though the said offences are today much more serious _ In view of the Article 20(1) of the Constitution of India, accused cannot be subjected to a greater penalty than that might have been inflicted under the law in force at the time of the commission of the offence. (See 2016 (4) LJSOFT 143)
Quashing of criminal proceedings _ Obscene act done in a private place or viewed in privacy not covered by the provisions of section 294 of IPC. (See 2016 (4) LJSOFT 2)
Quashing of order of investigation _ Extortion _ Housing loan _ As the default were committed in repayment the notice was issued claiming the outstanding dues _ No offence of extortion is committed by issuance of notice u/s 13(2) of SARFAESI Act _ No offence being committed much less punishable u/s 383 of IPC. (See 2016 (4) LJSOFT 128)
Reservation _ Post of Principal in each of the colleges run by an education institution is a solitary post in a cadre and is not amenable to reservation. (See 2016 (4) LJSOFT (AUR) 98)
Subsequent pleadings under provisions of Order VIII Rule 9 of CPC _ Where an order has been passed subject to payment of costs and the same are duly accepted by the other side without demur the right to challenge the order subsequently is lost. (See 2016 (4) LJSOFT (NAG) 14)
Termination of services _ Rules of pleadings _ In the complaint there is no pleading touching the fairness of the enquiry and the findings of Enquiry Officer _ In the absence of such challenge no issue is required to be cast in relation thereto, merely because the employer has reserved its right to conduct a denovo enquiry _ Such issue was rightly not framed. (See 2016 (4) LJSOFT (AUR) 61)
Termination of services _ Withdrawal of pleasure cannot be at the sweet will, whim and fancy of the State Government _ It can only be for valid reasons. (See 2016 (4) LJSOFT 100)
Transit bail _ Alleged offence of rape has taken place in Goa _ Applicant contended that his name has inserted in this false prosecution against him by one person who is the business rivalry _ Applicant protected by interim bail upto 14-3-2016 to enable him to approach Goa Sessions Court. (See 2016 (4) LJSOFT 4)
Voluntary Retirement Scheme _ Precondition of deposit for entertaining any complaint_ Though such power to direct pre-deposit exists but an sequator does not automatically follow that it is a mandatory precondition _ Such direction cannot be automatic and without application of mind. (See 2016 (4) LJSOFT 68)
