Thursday, October 12, 2017

SC issues tough guidelines to give lawyers 'senior designation'

The Supreme Court (SC) on Thursday said it will set up a a permanent committee headed by the Chief Justice of India to decide which lawyers are to be given seniority.

The five-member committee will include the most senior Supreme Court judge and high court judge and a representative of the concerned bar .

"Conferring senior advocate designation will no longer be the sole discretion of judges. A permanent body will interview applicants (lawyers) to determine whether they are suitable for the elevated designation," said the CJI-led SC bench.

The committee will prepare a list of lawyers aspiring for seniority after examining the background of the applicants.

The list will then be forwarded to a full court for voting. Those rejected will be eligible for reconsideration only after a gap of two years, the SC said.
The top court also proposed setting up of a secretariat which will collate applications and details to confer seniority to lawyers.
"A senior advocate guilty of professional misconduct or other offence would face proceedings for withdrawal of designation," the SC said.
The SC said that its condition for seniority appear to be stricter than those for appointing SC and HC judges.


"The elaborate and stringent exercise for senior designation appears tougher than the existing scrutiny for appointment of Judges to HCs and SC."

A man Ordered 166 Phones And Claimed Refunds. How Delhi Man Duped Amazon

A 21-year-old who bought over 166 expensive mobile phones from online store Amazon in Delhi and got refunds running into lakhs of rupees after claiming that he had received an empty box has been arrested, the police said.

The police said Shivam Chopra, 21, had made nearly Rs. 50 lakh between April and May this year before Amazon realized that they were being conned and complained to the police.

Shivam Chopra had done a course in hotel management from an institute in north Delhi's Rohini and had tried his hand at some jobs. But he wasn't good at keeping them and had ended up without a job. In March this year, he came up with this idea and ordered two phones as a test case. He asked for a refund, and got it.

For the next two months, he made a business out of it, ordering Apple, Samsung and OnePlus mobile phones.

He would sell the phones either on another online marketplace OLX or Gaffar market, a west Delhi market for mobiles and other imported goods that was counted by the US Trade Representative as one of the world's "notorious markets" in global piracy in 2014.

Sachin Jain, 38, a small telecom store owner near his house who had supplied more than a 141 pre-activated SIM cards to Shivam Chopra to let him place the orders in different names, has also been arrested. He would charge Rs. 150 for each number.

A resident of Tri Nagar in north-west Delhi, Shivam Chopra used these phone numbers to place orders and would give an incorrect address in the locality. When Amazon's delivery associate could not locate the house, he would invariably call on the registered phone number of the account that he was using.

He would then guide him to somewhere close to his current address in the locality, take the delivery. Later, he would call up to complain that the box was empty and get a refund.

"This was repeated for all 166 orders that were placed by the perpetrator," senior police officer Milind Mahadeo Dumbere said.

19 mobile phones, 12 lakhs in cash and 40 bank passbooks and cheques have been seized from the home of the graduate from a north Delhi institute for hotel management. Apart from the money in the bank, he had also kept Rs. 10 lakh with someone for safekeeping.

The north-west district police chief said the police were able to locate the young man this month after months of investigation during which they narrowed down the locality where he probably lived.

Last year, the Hyderabad police had arrested two persons who would tactfully open the seal of the packet while the delivery associate was waiting for payment at their doorsteps, replace the item with sand and reject the item to online retailers such as Amazon and Flipkart. There have been other cases where customers have allegedly replaced the items ordered with similar products of poor quality.

Law student wins fight against unfair charge on debit card transactions

A student of Ram Manohar Lohiya National Law University (RMLNLU) Lucknow has successfully challenged the illegal levy of Merchant Discount Rates (MDR) on debit card transactions.
As reported earlierChanakya Sharma was unfairly made to pay a surcharge of 2% on the bill in a restaurant in Goa. When he sought clarification as to why this surcharge was levied, responses from both the establishment, as well as the bank, were not forthcoming. It was later brought to light that the restaurant had charged him a similar fee on a previous transaction as well.
In light of these facts, he was prompted to file a plaint before the District Consumer Disputes Redressal Forum in South Goa.
Chanakya’s plaint centred on the Merchant Discount Rate (MDR), which is the commission paid by a merchant to the acquiring bank for every transaction. Essentially, his argument was that the merchant is required to pay the MDR to the bank, and that this burden cannot be shifted to the customer.
In fact, the Reserve Bank of India (RBI) had expressly stated in a circular published in September 2013,
Levying fees on debit card transactions by merchants- There are instances where merchant establishments levy fee as a percentage of the transaction value as charges on customers who are making payments for purchase of goods and services through debit cards.
Such fee are not justifiable and are not permissible as per the bilateral agreement between the acquiring bank and the merchants and therefore calls for termination of the relationship of the bank with such establishments.”
And after fighting a long-drawn battle in the Consumer Forum, Chanakya received a favourable order last month. After going into the specifics of the bill, the Forum found the restaurant owner guilty of unfairly imposing the 2% charge for the debit card transaction.
“The Complainant has also proved that Opposite Party No.1 had levied charges at the rate of 2% on the invoice amount for payments made through the debit cards. The Opposite Party No.1 was not allowed to levy this charges. There was a clear agreement between the bank and Opposite Party No.1 that he had to bear this charges and that he should not recover this charges from his customers. It was clearly an unfair practice followed by the Opposite Party No.1.”
The order also noted that the restaurant was evading tax liability. It states,
“The computerized invoice issued to the Complainant and his friend Ms. Chandni proves that the Opposite Party No.1 was infact not collecting this VAT from his customers, although he was liable to pay tax.  The computer invoices issued to the customers and produced on record…only prove that the Opposite Party No.1 was maintaining two accounts, one in which he was levying tax towards the goods sold and the other in which he was not levying tax, although he was liable to pay tax.  This is a clear case of evading tax liability.”
Therefore, the Forum ordered the restaurant to pay Chanakya a compensation amount of Rs. 15,000 to cover his legal costs and further directed it to pay Rs. 10,000 towards the Consumer Welfare Fund. The order notes,
“The Complainant also submitted that he personally is not interested in any compensation and in case compensation is awarded, it may be credited to Consumer Welfare Fund in Goa…We do appreciate the concern shown by the Complainant for the advantageous of general public and more particularly to the customers of Opposite Party No.1…”
The restaurant owner has also been directed to put up a sign stating,
“Our customers are not liable to pay any fees for payments made through debit or credit cards of the banks.”
During the course of the hearings before the Forum, Chanakya received assistance from the Legal Aid Clinic at GR Kare College, Margao, particularly from Principal Dr. Saba D’Silva and students Kaushik Dessai and Scarlett Dias.

Tuesday, October 10, 2017

SC Invokes ‘Inherent Powers’ To Dissolve Marriage Of District Judge Couple Who Have Been Living Separately For 17 Yrs.

Invoking its inherent powers to do ‘complete justice’, the Supreme Court has granted divorce to a district judge in West Bengal, whose wife, also a district judge, has been living separately for the past 17 years.

The husband and wife, in the instant case, are district judges in the state of West Bengal. The husband’s application for divorce was dismissed on the ground that he failed to prove cruelty on the part of his wife. The high court also dismissed the appeal by holding that irretrievable breakdown of marriage cannot be a ground for divorce.
The wife did not appear before the trial court after filing of written statement. She also did not appear before the proceedings in the high court as well as the Supreme Court.Noting the said conduct on her part, the bench said it indicated that she was not interested in living with the husband. Refusal to participate in proceeding for divorce and forcing the appellant to stay in a dead marriage would itself constitute mental cruelty, the bench said by referring to Samar Ghosh vs Jaya Ghosh case.
“There is no likelihood of the Appellant and the Respondent living together and for all practical purposes there is an irretrievable breakdown of the marriage,” the bench observed. The court also reiterated that Article 142 of the Constitution for dissolution of a marriage can be invoked where the court finds that the marriage is totally unworkable, emotionally dead, beyond salvage and has broken down irretrievably, even if the facts of the case do not provide a ground in law on which the divorce could be granted.

Ref.CIVIL APPEAL No. 7186 of 2016 -OCTOBER 09, 2017. SC




Video conferencing cannot be directed in transfer petitions, Krishna Veni Nigam overruled by 2:1

A 3-judge Bench of the Supreme Court today held that video conferencing cannot be mandated in transfer petitions. In the process, it overruled its decision in Krishna Veni Nigam, which was passed earlier this year.
While Chief Justice Dipak Misra and Justice AM Khanwilkar ruled that video conferencing can be used only after settlement between parties fails, Justice DY Chandrachud dissented and strongly urged the use of technology in such proceedings. The majority judgment by CJI Dipak Misra and Justice Khanwilkar held the following:
(i) In view of the scheme of the 1984 Act and in particular Section 11, the hearing of matrimonial disputes may have to be conducted in camera.
(ii) After the settlement fails and when a joint application is filed or both the parties file their respective consent memorandum for hearing of the case through videoconferencing before the concerned Family Court, it may exercise the discretion to allow the said prayer.
(iii) After the settlement fails, if the Family Court feels it appropriate having regard to the facts and circumstances of the case that videoconferencing will sub-serve the cause of justice, it may so direct.
(iv) In a transfer petition, video conferencing cannot be directed.
(v) Our directions shall apply prospectively.
(vi) The decision in Krishna Veni Nagam (supra) is overruled to the aforesaid extent.
The case has its genesis in an order passed by Justices AK Goel and UU Lalit mandating the use of video conferencing facilities in matrimonial disputes before filing transfer petitions etc. Based on the said order, the Supreme Court had been disposing of transfer petitions without going into the merits of such petitions.
Subsequently, another Bench of Justices Kurian Joseph and R Banumathi disagreed with the said order, stating that the earlier Bench was not fully informed while passing the said order.
“Having due regard to the nature of family disputes sought to be addressed by the Parliament, we are afraid, the Court in Krishna Veni Nagam (supra) has not been furnished with the required information, before passing the order.”
It observed that confidence and confidentiality may not be protected in video conferencing during such counselling sessions.
They opined that the matter requires consideration by a larger Bench and directed that it be placed before the Chief Justice for the constitution of an appropriate bench.
Pursuant to that, the matter came up for hearing before the 3-judge Bench.
Amicus Curiae Ajit Kumar Sinha had submitted before the 3-judge Bench that the order passed by Justices Goel and Lalit is wrong. He had placed heavy reliance on Justice DY Chandrachud’s judgment in the privacy case stating that matrimonial proceedings should get the protection of privacy and video conferencing impinges on the same.
ref.TRANSFER PETITION (CIVIL) NO.1278 OF 2016
Santhini Versus Vijaya Venketesh -October 09, 2017

'Sex with minor wife is to be considered rape', says Supreme Court

The Supreme Court (SC) today ruled that sex with a wife who's a minor is rape and therefore a crime.

The top court did not rule on marital rape.

Before today's SC ruling, there was an exception in Section 375 rape law provisions that protected a man who had sexual relations with his wife even if she was under 18, which is the age of consent.

"Exception 2 in Section 375 of IPC (Indian Penal Code) granting protection to husband is violative of constitution and fundamental rights of minor bride', says Supreme Court.

The top court's verdict upholds the rights of 2.3 crore child brides in the country.

The SC rejected the plea of the Centre which justified the provision on the grounds that child marriage is a reality in the country and such marriage has to be protected.

A bench headed by Justice Madan B Lokur had on September 6 asked the Centre how Parliament could create an exception in a law when the age of consent is 18.
Also in September, the apex court had said it did not want to go into the aspect of marital rape, but when the age of consent was 18 years for "all purposes", why was such an exception made in the IPC.
Responding to the query, the Centre's counsel had said if this exception under the IPC goes, then it would open up the arena of marital rape which does not exist in India.
As per the National Family Health Survey, 46 percent of women between the ages of 18-29 years were married before the age of 18.

Monday, October 9, 2017

VAT on fuel reduced by 4%, petrol price cheaper by Rs 2.93, diesel by Rs 2.72: Gujarat CM Vijay Rupani

Gujarat Chief Minister Vijay Rupani, on Tuesday, declared to cut Value Added Tax (VAT) charged by it on petrol and diesel by four per cent. So far, the government has been levying 24% VAT on petrol and diesel. With this announcement becoming effective from midnight, the new rate of petrol and diesel in Gujarat will be Rs 67.53 and Rs 60.77 per litre respectively. And it will cause decrease in the annual income of the state government by Rs 2316 crore, said Rupani.
As Gujarat is going to polls later this year, the announcement is being seen as an attempt by the government to woo public. However, Rupani refused to call this as an election oriented announcement.
“Some days back, Central Government had announced cut in excise on fuel and it had also recommended state governments to consider change in their taxation so that people of the country can have relief in charges of petrol and diesel. Elections are coming in Gujarat, but not in other states. Plus, this is going to be a long term and steady rate,” said Rupani.
Deputy Chief Minister Nitin Patel who is holding the Finance portfolio called the decision as ‘Diwali gift’ to the people of Gujarat and said, “We will have cut in the income due to this decision. But we are hoping that due to cheaper rate of the fuel, vehicles of bordering states will also buy fuel from Gujarat which will compensate the loss of income to some extent as the sale of the fuel will increase.”

Sunday, October 8, 2017

M/s. Meters and Instruments Private Limited & Anr. Versus Kanchan Mehta -5.10.2017.

SUPREME COURT OF INDIA
Before :- Adarsh Kumar Goel and Uday Umesh Lalit, JJ.
Criminal Appeal No. 1731 of 2017 (Arising Out of Special Leave Petition (Crl.) No.5451 of 2017). D/d. 5.10.2017.

M/s. Meters and Instruments Private Limited & Anr. - Appellant
Versus
Kanchan Mehta - Respondents

With Criminal Appeal No. 1732 of 2017 (Arising Out of Special Leave Petition (CRL.) No.5441 of 2017) With Criminal Appeal No. 1733 of 2017 (Arising Out of Special Leave Petition (CRL.) No.5449 of 2017).

IMPORTANT

Dishonour of cheque - Complainant duly compensated - Courts can close the proceedings and discharge the accused.
A. Negotiable Instruments Act, 1881 Section 143 Criminal Procedure Code, 1973 Section 258 Dishonour of Cheque - Compounding of offence - Even in absence of consent of the complainant, the Court on being satisfied that the complainant has been duly compensated, can close the proceedings and discharge the accused - Appropriate order can be passed by the Court in exercise of its inherent power under Section 143 of the Act which is different from compounding by consent of parties.
[Para 11 and 18]
B. Negotiable Instruments Act, 1881 Section 143 Criminal Procedure Code, 1973 Section 258 Dishonour of cheque - Summary Trial -Provisions of the Cr.P.C. are applicable "so far as may be" - Section 258 Cr.P.C. even though strictly speaking not applicable to complaint cases - Provisions applicable to complaint cases covered by Section 143 of the Act which contemplates applicability of summary trial provisions, as far as possible - Such deviation may be necessary for speedy trial in the context.
[Para 11]
C. Negotiable Instruments Act, 1881 Section 143 Criminal Procedure Code, 1973 Section 258 No bar to issue directions which do not affect the exercise of power under Section 205 Cr.P.C., to require personal attendance wherever necessary - No affect on the power of the High Court under Article 225 of the Constitution read with Articles 227 and 235 to issue directions to subordinate courts without affecting the prevailing statutory scheme. TGN Kumar v. State of Kerala, 2011(1) R.C.R.(Criminal) 507 : 2011(1) Recent Apex Judgments (R.A.J.) 236 Relied.
[Para 14]
D. Negotiable Instruments Act, 1881 Section 143 Dishonour of Cheque - Summary Trial - Personal appearance - Once the complaint is filed, Court to issue summons indicating that the accused could make specified payment by deposit in a particular account before the specified date and inform the court and the complainant by e-mail - In such a situation, accused may not be required to appear if the court is satisfied that the payment has been duly made and if the complainant has no valid objection - If the accused is required to appear, his statement ought to be recorded forthwith and the case fixed for defence evidence, unless complaintant's witnesses are recalled for examination.
[Para 16]
E. Negotiable Instruments Act, 1881 Section 143 Dishonour of Cheques - Having regard to magnitude of challenge posed by cases under Section 138, necessary that the situation is reviewed by the High Courts - Use of modern technology needs to be considered - At least some number of Section 138 cases can be decided online - If complaint with affidavits and documents can be filed online, process issued online and accused pays the specified amount online, it may obviate the need for personal appearance of the complainant or the accused - Only if the accused contests, need for appearance of parties may arise which may be through counsel and wherever viable, video conferencing can be used - Personal appearances can be dispensed with on suitable self operating conditions - High Courts may issue appropriate directions.
[Para 17]
F. Negotiable Instruments Act, 1881 Section 143 Objects of the Act - Summary Trial - From the above discussion following aspects emerge:
i) Offence under Section 138 of the Act is primarily a civil wrong. Burden of proof is on accused in view presumption under Section 139 but the standard of such proof is "preponderance of probabilities". The same has to be normally tried summarily as per provisions of summary trial under the Cr.P.C. but with such variation as may be appropriate to proceedings under Chapter XVII of the Act. Thus read, principle of Section 258 Cr.P.C. will apply and the Court can close the proceedings and discharge the accused on satisfaction that the cheque amount with assessed costs and interest is paid and if there is no reason to proceed with the punitive aspect.
ii) The object of the provision being primarily compensatory, punitive element being mainly with the object of enforcing the compensatory element, compounding at the initial stage has to be encouraged but is not debarred at later stage subject to appropriate compensation as may be found acceptable to the parties or the Court.
iii) Though compounding requires consent of both parties, even in absence of such consent, the Court, in the interests of justice, on being satisfied that the complainant has been duly compensated, can in its discretion close the proceedings and discharge the accused.
iv) Procedure for trial of cases under Chapter XVII of the Act has normally to be summary. The discretion of the Magistrate under second proviso to Section 143, to hold that it was undesirable to try the case summarily as sentence of more than one year may have to be passed, is to be exercised after considering the further fact that apart from the sentence of imprisonment, the Court has jurisdiction under Section 357(3) Cr.P.C. to award suitable compensation with default sentence under Section 64 IPC and with further powers of recovery under Section 431 Cr.P.C. With this approach, prison sentence of more than one year may not be required in all cases.
v) Since evidence of the complaint can be given on affidavit, subject to the Court summoning the person giving affidavit and examining him and the bank's slip being prima facie evidence of the dishonor of cheque, it is unnecessary for the Magistrate to record any further preliminary evidence. Such affidavit evidence can be read as evidence at all stages of trial or other proceedings. The manner of examination of the person giving affidavit can be as per Section 264 Cr.P.C. The scheme is to follow summary procedure except where exercise of power under second proviso to Section 143 becomes necessary, where sentence of one year may have to be awarded and compensation under Section 357(3) is considered inadequate, having regard to the amount of the cheque, the financial capacity and the conduct of the accused or any other circumstances.
[Para 18]
Cases Referred :
Bhaskar Industries Ltd. v. Bhiwani Denim & Apparels Ltd., (2001) 7 SCC 401.
Damodar S. Prabhu v. Sayed Babalal H., (2010) 5 SCC 663.
Goa Plast (P) Ltd. v. Chico Ursula D'Souza, (2004) 2 SCC 235.
Hari Kishan v. Sukhbir Singh, (1988) 4 SCC 551.
Harishchandra Biyani v. Stock Holding Corporation of India Ltd., (2006) 4 Mah LJ 381.
Hussain v. Union of India, (2017) 5 SCC 702.
Indian Bank Association v. Union of India, (2014) 5 SCC 590.
Indo International Ltd. v. State of Maharashtra, 2006 Cri LJ 208 : (2005) 44 Civil CC (Bom).
J.V. Baharuni etc. v. State of Gujarat etc., (2014) 10 SCC 494.
JIK Industries Ltd. v. Amarlal V. Jumani, (2012) 3 SCC 255.
K.A. Abbas H.S.A. v. Sabu Joseph, (2010) 6 SCC 230.
KSL and Industries Ltd. v. Mannalal Khandelwal, 2005 Cri LJ 1201 (Bom).
Kumaran v. State of Kerala, (2017) 7 SCC 471.
Lafarge Aggregates & Concrete India (P) Ltd. v. Sukarsh Azad, (2014) 13 SCC 779.
Madhya Pradesh State Legal Services Authority v. Prateek Jain, (2014) 10 SCC 690.
Magma Leasing Ltd. v. State of W.B., (2007) 3 CHN 574.
Mandvi Cooperative Bank Ltd. v. Nimesh B. Thakore, (2010) 3 SCC 83.
R. Mohan v. A.K. Vijaya Kumar, (2012) 8 SCC 721.
R. Vijayan v. Baby, (2012) 1 SCC 260.
Rajesh Agarwal v. State, ILR, (2010) 6 Del 610.
Rajneesh Aggarwal v. Amit J. Bhalla, (2001) 1 SCC 631.
Rangappa v. Sri Mohan, (2010) 11 SCC 441.
Subramanium Sethuraman v. State of Maharashtra, (2004)13 SCC 324.
Suganthi Suresh Kumar v. Jagdeeshan, (2002) 2 SCC 420.
TGN Kumar v. State of Kerala, (2011) 2 SCC 772.
Vinay Devanna Nayak v. Ryot Sewa Sahakari Bank Ltd., (2008) 2 SCC 305.
JUDGMENT
Adarsh Kumar Goel, J. - Leave granted. These appeals have been preferred against the order dated 21st April, 2017 of the High Court of Punjab and Haryana at Chandigarh in CRLM Nos.13631, 13628 and 13630 of 2017. The High Court rejected the prayer of the appellants for compounding the offence under Section 138 of the Negotiable Instruments Act, 1881 (the Act) on payment of the cheque amount and in the alternative for exemption from personal appearance.
2. When the matters came up for hearing before this Court earlier, notice was issued to consider the question "as to how proceedings for an offence under Section 138 of the Act can be regulated where the accused is willing to deposit the cheque amount. Whether in such a case, the proceedings can be closed or exemption granted from personal appearance or any other order can be passed." The Court also appointed Mr. K.V. Viswanathan, learned senior counsel to assist the Court as amicus and Mr. Rishi Malhotra, learned counsel to assist the amicus. Accordingly, learned amicus has made his submissions and also filed written submissions duly assisted by S/Shri Rishi Malhotra, Ravi Raghunath, Dhananjay Ray and Sidhant Buxy, advocates. We place on record our appreciation for the services rendered by learned amicus and his team.
3. Few Facts: The Respondent Kanchan Mehta filed complaint dated 15th July, 2016 alleging that the appellants were to pay a monthly amount to her under an agreement. Cheque dated 31st March, 2016 was given for L 29,319/- in discharge of legal liability but the same was returned unpaid for want of sufficient funds. In spite of service of legal notice, the amount having not been paid, the appellants committed the offence under Section 138 of the Act. The Magistrate vide order dated 24th August, 2016, after considering the complaint and the preliminary evidence, summoned the appellants. The Magistrate in the order dated 9th November, 2016 observed that the case could not be tried summarily as sentence of more than one year may have to be passed and be tried as summons case. Notice of accusation dated 9th November, 2016 was served under Section 251 Cr.P.C.
4. Appellant No.2, who is the Director of appellant No.1, made a statement that he was ready to make the payment of the cheque amount. However, the complainant declined to accept the demand draft. The case was adjourned for evidence. The appellants filed an application under Section 147 of the Act on 12th January, 2017 relying upon the judgment of this Court in Damodar S. Prabhu v. Sayed Babalal H., (2010) 5 SCC 663 The application was dismissed in view of the judgment of this Court in JIK Industries Ltd. v. Amarlal V. Jumani, (2012) 3 SCC 255 which required consent of the complainant for compounding. The High Court did not find any ground to interfere with the order of the Magistrate. Facts of other two cases are identical. Hence these appeals.
5. We have heard learned counsel for the parties and learned amicus who has been duly and ably assisted by S/Shri Rishi Malhotra, Ravi Raghunath, Dhananjay Ray and Sidhant Buxy, advocates. We proceed to consider the question.
6. The object of introducing Section 138 and other provisions of Chapter XVII in the Act in the year 1988[3*] was to enhance the acceptability of cheques in the settlement of liabilities. The drawer of cheque is made liable to prosecution on dishonour of cheque with safeguards to prevent harassment of honest drawers. The Negotiable Instruments (Amendment and Miscellaneous Provisions) Act, 2002 to amend the Act was brought in, inter-alia, to simplify the procedure to deal with such matters. The amendment includes provision for service of summons by Speed Post/Courier, summary trial and making the offence compoundable.
[3* Vide the Banking, Public Financial Institutions and Negotiable Instruments Laws (Amendment) Act, 1988]
7. This Court has noted that the object of the statute was to facilitate smooth functioning of business transactions. The provision is necessary as in many transactions cheques were issued merely as a device to defraud the creditors. Dishonour of cheque causes incalculable loss, injury and inconvenience to the payee and credibility of business transactions suffers a setback[4*]. At the same time, it was also noted that nature of offence under Section 138 primarily related to a civil wrong and the 2002 amendment specifically made it compoundable[5*]. The offence was also described as `regulatory offence'. The burden of proof was on the accused in view of presumption under Section 139 and the standard of proof was of "preponderance of probabilities"[6*] . The object of the provision was described as both punitive as well as compensatory. The intention of the provision was to ensure that the complainant received the amount of cheque by way of compensation. Though proceedings under Section 138 could not be treated as civil suits for recovery, the scheme of the provision, providing for punishment with imprisonment or with fine which could extend to twice the amount of the cheque or to the both, made the intention of law clear. The complainant could be given not only the cheque amount but double the amount so as to cover interest and costs. Section 357(1)(b) of the Cr. P.C. provides for payment of compensation for the loss caused by the offence out of the fine[7*]. Where fine is not imposed, compensation can be awarded under Section 357(3) Cr.P.C. to the person who suffered loss. Sentence in default can also be imposed. The object of the provision is not merely penal but to make the accused honour the negotiable instruments[8*].
[4* Goa Plast (P) Ltd. v. Chico Ursula D'Souza (2004) 2 SCC 235]
[5* Vinay Devanna Nayak v. Ryot Sewa Sahakari Bank Ltd.(2008) 2 SCC 305]
[6* Rangappa v. Sri Mohan (2010) 11 SCC 441]
[7* R. Vijayan v. Baby (2012) 1 SCC 260]
[8* Lafarge Aggregates & Concrete India (P) Ltd. v. Sukarsh Azad (2014) 13 SCC 779]
8. In view of the above scheme, this Court held that the accused could make an application for compounding at the first or second hearing in which case the Court ought to allow the same. If such application is made later, the accused was required to pay higher amount towards cost etc[9*]. This Court has also laid down that even if the payment of the cheque amount, in terms of proviso (b) to Section 138 of the Act was not made, the Court could permit such payment being made immediately after receiving notice/summons of the court[10*]. The guidelines in Damodar (Supra) have been held to be flexible as may be necessary in a given situation[11*]. Since the concept of compounding involves consent of the complainant, this Court held that compounding could not be permitted merely by unilateral payment, without the consent of both the parties.[12*]
[9* Damodar S. Prabhu (supra)]
[10* (2006) 6 SCC 456, (2007) 6 SCC 555]
[11* Para 23 in Madhya Pradesh State Legal Services Authority v. Prateek Jain and Anr. (2014) 10 SCC 690]
[12* Rajneesh Aggarwal v. Amit J. Bhalla (2001) 1 SCC 631]
9. While the object of the provision was to lend credibility to cheque transactions, the effect was that it put enormous burden on the courts' dockets. The Law Commission in its 213th Report, submitted on 24th November, 2008 noted that out of total pendency of 1.8 crores cases in the country (at that time), 38 lakh cases (about 20% of total pendency) related to Section 138 of the Act. This Court dealt with the issue of interpretation of 2002 amendment which was incorporated for simplified and speedy trials. It was held that the said provision laid down a special code to do away with all stages and processes in regular criminal trial[13*]. This Court held that once evidence was given on affidavit, the extent and nature of examination of such witness was to be determined by the Court. The object of Section 145(2) was simpler and swifter trial procedure. Only requirement is that the evidence must be admissible and relevant. The affidavit could also prove documents[14*]. The scheme of Sections 143 to 147 of the Act was a departure from provisions of Cr.P.C. and the Evidence Act and complaints could be tried in a summary manner except where the Magistrate feels that sentence of more than one year may have to be passed. Even in such cases, the procedure to be followed may not be exactly the same as in Cr.P.C. The expression "as far as possible" in Section 143 leaves sufficient flexibility for the Magistrate so as not to affect the quick flow of the trial process. The trial has to proceed on day to day basis with endeavour to conclude the same within six months. Affidavit of the complainant can be read as evidence. Bank's slip or memo of cheque dishonour can give rise to the presumption of dishonour of the cheque, unless and until that fact was disproved.
[13* Mandvi Cooperative Bank Ltd. v. Nimesh B. Thakore(2010) 3 SCC 83, paras 25, 26]
[14* Para 41, ibid ]
10. Again, this Court considered the matter in J.V. Baharuni and Anr. etc. v. State of Gujarat and Anr etc., (2014) 10 SCC 494 and observed that the procedure prescribed for cases under Section 138 of the Act was flexible and applicability of Section 326(3) of the Cr.P.C. in not acting on the evidence already recorded in a summary trial did not strictly apply to the scheme of Section 143 of the Act[16*]. This Court observed that the procedure being followed by the Magistrates was not commensurate with the summary trial provisions and a successor Magistrate ought not to mechanically order de novo trial. This Court observed that the Court should make endeavour to expedite hearing of cases in a time bound manner. The Magistrate should make attempts to encourage compounding of offence at an early stage of litigation. The compensatory aspect of remedy should be given priority over the punitive aspect[17*].
[16* Para 43 of J.V. Baharuni (2014) 10 SCC 494]
[17* Para 60 of J.V. Baharuni (2014) 10 SCC 494]
11. While it is true that in Subramanium Sethuraman v. State of Maharashtra, (2004)13 SCC 324 this Court observed that once the plea of the accused is recorded under Section 252 of the Cr.P.C., the procedure contemplated under Chapter XX of the Cr.P.C. has to be followed to take the trial to its logical conclusion, the said judgment was rendered as per statutory provisions prior to 2002 amendment. The statutory scheme post 2002 amendment as considered in Mandvi Cooperative Bank and J.V. Baharuni (supra) has brought about a change in law and it needs to be recognised. After 2002 amendment, Section 143 of the Act confers implied power on the Magistrate to discharge the accused if the complainant is compensated to the satisfaction of the Court, where the accused tenders the cheque amount with interest and reasonable cost of litigation as assessed by the Court. Such an interpretation was consistent with the intention of legislature. The court has to balance the rights of the complainant and the accused and also to enhance access to justice. Basic object of the law is to enhance credibility of the cheque transactions by providing speedy remedy to the complainant without intending to punish the drawer of the cheque whose conduct is reasonable or where compensation to the complainant meets the ends of justice. Appropriate order can be passed by the Court in exercise of its inherent power under Section 143 of the Act which is different from compounding by consent of parties. Thus, Section 258 Cr.P.C. which enables proceedings to be stopped in a summons case, even though strictly speaking is not applicable to complaint cases, since the provisions of the Cr.P.C. are applicable "so far as may be", the principle of the said provision is applicable to a complaint case covered by Section 143 of the Act which contemplates applicability of summary trial provisions, as far as possible, i.e. with such deviation as may be necessary for speedy trial in the context.
12. The sentence prescribed under Section 138 of the Act is upto two years or with fine which may extend to twice the amount or with both. What needs to be noted is the fact that power under Section 357(3) Cr.P.C. to direct payment of compensation is in addition to the said prescribed sentence, if sentence of fine is not imposed. The amount of compensation can be fixed having regard to the extent of loss suffered by the action of the accused as assessed by the Court. The direction to pay compensation can be enforced by default sentence under Section 64 IPC and by recovery procedure prescribed under Section 431 Cr.P.C.19
[19* Hari Kishan v. Sukhbir Singh (1988) 4 SCC 551; Suganthi Suresh Kumar v. Jagdeeshan (2002) 2 SCC 420; K.A. Abbas H.S.A. v. Sabu Joseph (2010) 6 SCC 230; R. Mohan v. A.K. Vijaya Kumar (2012) 8 SCC 721; and Kumaran v. State of Kerala (2017) 7 SCC 471]
13. This Court in Indian Bank Association and Ors. v. Union of India and Ors., (2014) 5 SCC 590 approved the directions of the Bombay High Court, Calcutta High Court and Delhi High Court in KSL and Industries Ltd. v. Mannalal Khandelwal, 2005 Cri LJ 1201 (Bom) Indo International Ltd. v. State of Maharashtra, 2006 Cri LJ 208: (2005) 44 Civil CC (Bom) Harishchandra Biyani v. Stock Holding Corporation of India Ltd., (2006) 4 Mah LJ 381 Magma Leasing Ltd. v. State of W.B., (2007) 3 CHN 574 and Rajesh Agarwal v. State, ILR (2010) 6 Del 610 laying down simpler procedure for disposal of cases under Section 138 of the Act. This Court directed as follows:
"23. Many of the directions given by the various High Courts, in our view, are worthy of emulation by the criminal courts all over the country dealing with cases under Section 138 of the Negotiable Instruments Act, for which the following directions are being given:
23.1. The Metropolitan Magistrate/Judicial Magistrate (MM/JM), on the day when the complaint under Section 138 of the Act is presented, shall scrutinise the complaint and, if the complaint is accompanied by the affidavit, and the affidavit and the documents, if any, are found to be in order, take cognizance and direct issuance of summons.
23.2. The MM/JM should adopt a pragmatic and realistic approach while issuing summons. Summons must be properly addressed and sent by post as well as by e-mail address got from the complainant. The court, in appropriate cases, may take the assistance of the police or the nearby court to serve notice on the accused. For notice of appearance, a short date be fixed. If the summons is received back unserved, immediate follow-up action be taken.
23.3. The court may indicate in the summons that if the accused makes an application for compounding of offences at the first hearing of the case and, if such an application is made, the court may pass appropriate orders at the earliest.
23.4. The court should direct the accused, when he appears to furnish a bail bond, to ensure his appearance during trial and ask him to take notice under Section 251 CrPC to enable him to enter his plea of defence and fix the case for defence evidence, unless an application is made by the accused under Section 145(2) for recalling a witness for cross-examination.
23.5. The court concerned must ensure that examination-in-chief, cross-examination and re-examination of the complainant must be conducted within three months of assigning the case. The court has option of accepting affidavits of the witnesses instead of examining them in the court. The witnesses to the complaint and the accused must be available for cross-examination as and when there is direction to this effect by the court.
24. We, therefore, direct all the criminal courts in the country dealing with Section 138 cases to follow the abovementioned procedures for speedy and expeditious disposal of cases falling under Section 138 of the Negotiable Instruments Act. The writ petition is, accordingly, disposed of, as above."
14. We may, however, note that this Court held that general directions ought not to be issued which may deprive the Magistrate to exercise power under Section 205 Cr.P.C.[26*] We need to clarify that the judgment of this Court is not a bar to issue directions which do not affect the exercise of power under Section 205, to require personal attendance wherever necessary. Needless to say that the judgment cannot be read as affecting the power of the High Court under Article 225 of the Constitution read with Articles 227 and 235 to issue directions to subordinate courts without affecting the prevailing statutory scheme.
[26* TGN Kumar v. State of Kerala (2011) 2 SCC 772]
15. In Bhaskar Industries Ltd. v. Bhiwani Denim & Apparels Ltd., (2001) 7 SCC 401 this Court considered the issue of hardship caused in personal attendance by an accused particularly where accused is located far away from the jurisdiction of the Court where the complaint is filed. This Court held that even in absence of accused, evidence can be recorded in presence of counsel under Section 273 Cr.P.C. and Section 317 Cr.P.C. permitted trial to be held in absence of accused. Section 205 Cr.P.C. specifically enabled the Magistrate to dispense with the personal appearance. Having regard to the nature of offence under Section 138, this Court held that the Magistrates ought to consider exercise of the jurisdiction under Section 205 Cr.P.C. to relieve accused of the hardship without prejudice to the prosecution proceedings. It was observed :
"15. These are days when prosecutions for the offence under Section 138 are galloping up in criminal courts. Due to the increase of inter-State transactions through the facilities of the banks it is not uncommon that when prosecutions are instituted in one State the accused might belong to a different State, sometimes a far distant State. Not very rarely such accused would be ladies also. For prosecution under Section 138 of the NI Act the trial should be that of summons case. When a magistrate feels that insistence of personal attendance of the accused in a summons case, in a particular situation, would inflict enormous hardship and cost to a particular accused, it is open to the magistrate to consider how he can relieve such an accused of the great hardships, without causing prejudice to the prosecution proceedings."
16. It is, thus, clear that the trials under Chapter XVII of the Act are expected normally to be summary trial. Once the complaint is filed which is accompanied by the dishonored cheque and the bank's slip and the affidavit, the Court ought to issue summons. The service of summons can be by post/e-mail/courier and ought to be properly monitored. The summons ought to indicate that the accused could make specified payment by deposit in a particular account before the specified date and inform the court and the complainant by e-mail. In such a situation, he may not be required to appear if the court is satisfied that the payment has not been duly made and if the complainant has no valid objection. If the accused is required to appear, his statement ought to be recorded forthwith and the case fixed for defence evidence, unless complaintant's witnesses are recalled for examination.
17. Having regard to magnitude of challenge posed by cases filed under Section 138 of the Act, which constitute about 20% of the total number of cases filed in the Courts (as per 213th Report of the Law Commission) and earlier directions of this Court in this regard, it appears to be necessary that the situation is reviewed by the High Courts and updated directions are issued. Interactions, action plans and monitoring are continuing steps mandated by Articles 39A and 21 of the Constitution to achieve the goal of access to justice[28*]. Use of modern technology needs to be considered not only for paperless courts but also to reduce overcrowding of courts. There appears to be need to consider categories of cases which can be partly or entirely concluded "online" without physical presence of the parties by simplifying procedures where seriously disputed questions are not required to be adjudicated. Traffic challans may perhaps be one such category. Atleast some number of Section 138 cases can be decided online. If complaint with affidavits and documents can be filed online, process issued online and accused pays the specified amount online, it may obviate the need for personal appearance of the complainant or the accused. Only if the accused contests, need for appearance of parties may arise which may be through counsel and wherever viable, video conferencing can be used. Personal appearances can be dispensed with on suitable self operating conditions. This is a matter to be considered by the High Courts and wherever viable, appropriate directions can be issued.
[28* Hussain v. Union of India (2017)5 SCC 702]
18. From the above discussion following aspects emerge:
i) Offence under Section 138 of the Act is primarily a civil wrong. Burden of proof is on accused in view presumption under Section 139 but the standard of such proof is "preponderance of probabilities". The same has to be normally tried summarily as per provisions of summary trial under the Cr.P.C. but with such variation as may be appropriate to proceedings under Chapter XVII of the Act. Thus read, principle of Section 258 Cr.P.C. will apply and the Court can close the proceedings and discharge the accused on satisfaction that the cheque amount with assessed costs and interest is paid and if there is no reason to proceed with the punitive aspect.
ii) The object of the provision being primarily compensatory, punitive element being mainly with the object of enforcing the compensatory element, compounding at the initial stage has to be encouraged but is not debarred at later stage subject to appropriate compensation as may be found acceptable to the parties or the Court.
iii) Though compounding requires consent of both parties, even in absence of such consent, the Court, in the interests of justice, on being satisfied that the complainant has been duly compensated, can in its discretion close the proceedings and discharge the accused.
iv) Procedure for trial of cases under Chapter XVII of the Act has normally to be summary. The discretion of the Magistrate under second proviso to Section 143, to hold that it was undesirable to try the case summarily as sentence of more than one year may have to be passed, is to be exercised after considering the further fact that apart from the sentence of imprisonment, the Court has jurisdiction under Section 357(3) Cr.P.C. to award suitable compensation with default sentence under Section 64 IPC and with further powers of recovery under Section 431 Cr.P.C. With this approach, prison sentence of more than one year may not be required in all cases.
v) Since evidence of the complaint can be given on affidavit, subject to the Court summoning the person giving affidavit and examining him and the bank's slip being prima facie evidence of the dishonor of cheque, it is unnecessary for the Magistrate to record any further preliminary evidence. Such affidavit evidence can be read as evidence at all stages of trial or other proceedings. The manner of examination of the person giving affidavit can be as per Section 264 Cr.P.C. The scheme is to follow summary procedure except where exercise of power under second proviso to Section 143 becomes necessary, where sentence of one year may have to be awarded and compensation under Section 357(3) is considered inadequate, having regard to the amount of the cheque, the financial capacity and the conduct of the accused or any other circumstances.
19. In view of the above, we hold that where the cheque amount with interest and cost as assessed by the Court is paid by a specified date, the Court is entitled to close the proceedings in exercise of its powers under Section 143 of the Act read with Section 258 Cr.P.C. As already observed, normal rule for trial of cases under Chapter XVII of the Act is to follow the summary procedure and summons trial procedure can be followed where sentence exceeding one year may be necessary taking into account the fact that compensation under Section 357(3) Cr.P.C. with sentence of less than one year will not be adequate, having regard to the amount of cheque, conduct of the accused and other circumstances.
20. In every complaint under Section 138 of the Act, it may be desirable that the complainant gives his bank account number and if possible e-mail ID of the accused. If e-mail ID is available with the Bank where the accused has an account, such Bank, on being required, should furnish such e-mail ID to the payee of the cheque. In every summons, issued to the accused, it may be indicated that if the accused deposits the specified amount, which should be assessed by the Court having regard to the cheque amount and interest/cost, by a specified date, the accused need not appear unless required and proceedings may be closed subject to any valid objection of the complainant . If the accused complies with such summons and informs the Court and the complainant by e-mail, the Court can ascertain the objection, if any, of the complainant and close the proceedings unless it becomes necessary to proceed with the case. In such a situation, the accused's presence can be required, unless the presence is otherwise exempted subject to such conditions as may be considered appropriate. The accused, who wants to contest the case, must be required to disclose specific defence for such contest. It is open to the Court to ask specific questions to the accused at that stage. In case the trial is to proceed, it will be open to the Court to explore the possibility of settlement. It will also be open to the Court to consider the provisions of plea bargaining. Subject to this, the trial can be on day to day basis and endeavour must be to conclude it within six months. The guilty must be punished at the earliest as per law and the one who obeys the law need not be held up in proceedings for long unnecessarily.
21. It will be open to the High Courts to consider and lay down category of cases where proceedings or part thereof can be conducted online by designated courts or otherwise. The High Courts may also consider issuing any further updated directions for dealing with Section 138 cases in the light of judgments of this Court.
The appeals are disposed of.
It will be open to the appellants to move the Trial Court afresh for any further order in the light of this judgment.

Thursday, October 5, 2017

Forged papers used in 568 RTE admissions

District Education Officers and District Primary Education Officersacross the state have failed to initiate action against parents of 568 students who had taken admission under the Right to Education (RTE) Act on fake documents.

"We have issued a circular asking all the DEOs and DPEOs to lodge police complaints in these cases. However, despite the circular, no police complaint has been lodged so far by any of the education officials in the districts," a senior education officer said.

Ahmedabad DPEO Mahesh Mehta said: "We are scrutinizing the details and soon will lodge a police complaint." In Ahmedabad, in around 100 cases, documents have been forged.On learning that such a huge number of admissions were taken on forged documents, the state government had asked the District Education Officers and the District Primary Education Officers to initiate action against the 'guilty' parents and even lodge police complaints in the cases.

The District Primary Education Office (DPEO) has instituted an inquiry into a complaint of 'fake poor' taking admission under RTE. Officials said that around 1,450 admissions were under scrutiny of the education department.

Consent To Sexual Advances Doesn't Come From Mere Hesitation: Delhi High Court

The High Court said in today's scenario, it was expected that consent be viewed as a clear and unambiguous agreement, expressed outwardly through mutually understandable words or actions and the consent can be withdrawn by either party at any point of time.

Consent to any sexual advances does not come from a mere hesitation, reluctance or a "no", it has to be "an affirmative one in clear terms", the Delhi High Court today said while acquitting filmmaker Mahmood Farooqui in a rape case involving a US researcher.

The High Court said in today's scenario, it was expected that consent be viewed as a clear and unambiguous agreement, expressed outwardly through mutually understandable words or actions and the consent can be withdrawn by either party at any point of time.

"Normally, body language or a non-verbal communication or any previous activity or passivity and in some cases incapacitation because of alcohol consumption, may not be taken as consent.

"However, in the present case, as has been stated, the appellant (Farooqui) has not been communicated or at least it is not known whether he has been communicated that there was no consent of the prosecutrix," Justice Ashutosh Kumar said.

"Peepli Live" co-director Farooqui was acquitted by the High Court saying it remained doubtful whether any such incident took place.
It gave benefit of doubt to him and set aside the trial court order that had awarded a seven-year jail term to Mr Farooqui after convicting him for the alleged rape of a 30- year-old American researcher at his south Delhi residence in March 2015.

The court further said the relationship extended beyond a normal friendship or a relationship between a guide and a researcher.

"True it is that such past conduct will definitely not amount to consent for what happened on the night of March 28, 2015, if at all it had happened, as for every sexual act, everytime, consent is a must. The consent does not merely mean hesitation or reluctance or a 'No' to any sexual advances but has to be an affirmative one in clear terms," it said.

It also referred to provision of rape under the IPC in which it has been added that a woman who does not physically resist an act of rape shall not by that reason only be regarded as having consented to such sexual activity.

Tendency now to rope all in-laws in dowry cases: Delhi HC

The Delhi High Court has set aside the seven-year sentence handed down to three brothers-in-law and a sister-in-law of a woman who had committed suicide in November 1995, observing that a tendency has developed in recent times “to rope in” all in-laws in dowry related cases.
Justice Pratibha Rani made the observation while hearing the appeals of the four, who were sentenced for the offence of dowry death under section 304B of the Indian Penal Code, after the woman committed suicide six months after her marriage.
The prosecution has failed to prove that the woman was harassed by them for dowry, the high court said, while setting aside their conviction and sentence.
“Recently a tendency has developed for roping in all the relations of the in-laws as accused persons and this appears to be the case here too.
“The prosecution has failed to prove either any dowry demand by the appellants or the deceased being harassed by the appellants in connection with any such dowry demand so as to prove that it was a case of dowry death. In view of above discussion, the appeal succeeds. The appellants are acquitted of all the charges,” it said.
The high court noted that while the woman’s family had levelled the allegation of dowry demand against the in-laws, during cross examination they had said no such demands were made.
It also observed that the “temperament” of the woman was such that when she was at her parental home, just after about two months of her marriage, she tried to commit suicide by consuming some harmful tablets after a fight with her brother.
The high court said it could not have been a case of dowry death by taking into account various factors, including the husband’s love for her, the appellant in-laws residing separately, the marriage being held without any dowry demand as well as the financial disparity between the two families.
It said the husband’s family was much better off than that of the woman and added that all these aspects were not considered by the trial court while convicting the appellants by its order of March 2002.
“The trial court has convicted all the appellants on the basis of conjectures and implications which could not have been done as there was neither any proof of dowry demand nor harassment of deceased by the appellants on account of any such dowry demand,” the high court said.