Thursday, January 17, 2019

'Cheque Bounce' Complaint Based On Second Notice After Re-Presentation Of Cheque Maintainable

The Supreme Court has held that a 'cheque bounce' complaint filed based on the second statutory notice issued after re-presentation of cheques, is maintainable.
In this case (Sicagen India Ltd vs. Mahindra Vadineni), the three cheques issued by the accused were presented by the complainant, and after they were dishonoured, a notice was issued to the accused on 31.08.2009 demanding the repayment of the amount. Thereafter, these cheques were again presented, which were dishonoured again. The complainant issued a statutory notice on 25.01.2010 and later filed the complaint under Section 138 of the Negotiable Instruments Act based on the second statutory notice.

The Madras High Court, allowing the petition filed by the accused, quashed the complaint by holding that "the amount has been specifically mentioned in the first notice and, thereafter, the complainant himself has postponed the matter and issued the second notice on 25.01.2010 and the complaint filed on the same cause of action was not maintainable.

In the judgment, disposing the appeal, the bench comprising Justice R. Banumathi and Justice Indira Banerjee specifically took note of the three judge bench decision in MSR Leathers vs. S. Palaniappan wherein it was held that there is nothing in the provisions of Section 138 of the Act that forbids the holder of the Cheque to make successive presentation of the cheque and institute the criminal complaint based on the second or successive dishonour of the cheque on its presentation.

In the said case, it was specifically held that there is no real or qualitative difference between a case where default is committed and prosecution immediately launched and another where the prosecution is deferred till the cheque presented again gets dishonoured for the second or successive time. The court had observed: "We haven’t  no hesitation in holding that a prosecution based on a second or successive default in payment of the cheque amount should not be impermissible simply because no prosecution based on the first default which was followed by statutory notice and a failure to pay had not been launched."
Applying the dictum laid in MSR Leathers, the bench, on the facts of this case, said: "In the present case as pointed out earlier that cheques were presented twice and notices were issued on 31.08.2009 and 25.01.2010. Applying the ratio of MSR Leathers (supra) the complaint filed based on the second statutory notice is not barred and the High Court, in our view, ought not to have quashed the criminal complaint and the impugned judgment is liable to be set aside."
Setting aside the High Court order, the bench remitted back the matter to the Trial Court.

Full Judgment 

Supreme Court paves way for opening of dance bars in Mumbai

The Supreme Court on Thursday relaxed stringent conditions imposed by the state government for getting licences for dance bars, paving the way for their opening in Mumbai and other cities in Maharashtra.
The top court said that there cannot be total prohibition on dance bars by imposing unreasonable conditions as no licence has been granted by state since 2005 and no dance bar is running today in the state.
An apex court bench headed by Justice A K Sikri also set aside the Maharashtra government's ruling for mandatory installation of CCTV camera inside dance bars, saying it "violates" privacy.
The court also quashed the Maharashtra Prohibition of Obscene Dance in Hotels, Restaurants and Bar. Rooms and Protection of Dignity of Women (Working therein) Act, which called for the segregation of dancing stage from the area where drinks are served inside bar.
On the state government's rule that only people with "good character" should be allowed to obtain dance bar license, the court said that it is difficult to define "good character.
The court also took a decision on the use of money inside the bar. "Tips can be given but showering of cash and coins is not allowed inside bars," it said.
The apex court also termed the state government's decision prohibiting dance bars from being present within one kilometer radius of educational institutes and religious places, saying that it is "unreasonable".
Though the court quashed the state government's prohibition on serving of liquor inside the dance bars, it upheld the decision allowing them to operate only from 6.00 pm to 11.30 pm.
In August last year, the court reserved its verdict on the pleas of hotel and restaurant owners challenging the 2016 Maharashtra law.
Earlier, the petitioners told the bench that the state government tried to circumvent a previous order of the apex court by bringing in the new 2016 law on conditions for operation of dance bars.
Hotel and restaurant owners argued that the state government adopted an attitude that it will not permit operations of dance bars irrespective of orders passed by the apex court.
On January 11, 2017, the apex court directed the Maharashtra government to expeditiously decide the pending applications for licences to open
dance
bars under the old rules and the directions issued by the court from time to time.
The Maharashtra government, in an affidavit filed before the court, defended the operation of a new law meant to regulate licensing and functioning of
dance
bars in the state.
"It was observed that such dances were derogatory to the dignity of women and were likely to deprave, corrupt or injure public morality," the state government said.
"It was also brought to the notice of the state government that the places where such dances were staged were used as places for immoral activities and also as a place for solicitation for the purpose of prostitution," it said.
The state government said prevention of obscenity in public places is a part of public policy in India and was reflected in provision of Indian Penal Code (IPC).
"Maharashtra Prohibition of Obscene
Dance in Hotels, Restaurants and Bar
Rooms and Protection of Dignity of Women (working therein) Act, 2016 gives effect to such Public Policy," it said.

SC reject states’ plea on control of DGP selection

States including West Bengal, Punjab, Kerala, Bihar and Haryana, the Supreme Court on 16/01/19 rejected their attempt to wrest control over the selection of the state police chief and ordered that directors general of police must continue to be selected from among senior police officers impanelled by the Union Public Service Commission (UPSC).

To step around the SC’s 2006 judgment in Prakash Singh case which mandated selection of DGP from a panel of IPS officers drawn up by UPSC, some states had enacted laws allowing setting up of an internal committee headed by the chief secretary to empanel senior police officers, from whom the state could select one.
A bench of Chief Justice Ranjan Gogoi and Justices L N Rao and S K Kaul said attempts to usurp the process of impaneling police officers ran counter to the Prakash Singh judgment, which wanted to ensure that “commitment, devotion, and accountability of the police have to be only to rule of law”.
The bench said given the spirit behind the directions issued in Prakash Singh case, which were “wholesome”, it would serve the public interest “if the same are implemented until such time that the matter (challenge to state police Acts) is heard finally”.

SC stipulated a fixed tenure of 2 yrs for DGP

Attempting to free police force from noxious political-bureaucratic influences, an SC bench headed by then CJI Y K Sabharwal had said, “Supervision and control has to be such that it ensures that police serves people without any regard, whatsoever, to the status and position of any person while investigating a crime or taking preventive measures. Its approach has to be service oriented, its role has to be defined so that in appropriate cases, where on account of acts of omission and commission of police, the rule of law becomes a casualty, the guilty police officers are brought to book and appropriate action was taken without any delay.”
The SC had also stipulated a fixed tenure of two years for the DGP irrespective of his date of retirement. “The DGP may, however, be relieved of his responsibilities by the state government, acting in consultation with the State Security Commission, consequent upon any action taken against him under All India Services (Discipline and Appeal) Rules or following his conviction in a court of law in a criminal offence or in a case of corruption, or if he is otherwise incapacitated from discharging his duties,” it had said.

Sunday, January 13, 2019

SC stops work on Shivaji memorial

The Maharashtra government’s ambitious plan to build a memorial to Chhatrapati Shivaji Maharaj in the Arabian Sea has received a major jolt with the Supreme Court on Friday ordering the state not to proceed with the work on the site.

The order of the Supreme Court bench consisting of Chief Justice Ranjan Gogoi and Justice SK Kaul came while hearing a special leave petition filed by the Conservation Action Trust (CAT).

The CAT has filed a petition in Bombay High Court requesting the court to scrap the project as the state government was going ahead with it without proper environmental clearances. The petition requested the court to grant an interim stay on the work of the project. Though the Bombay High Court admitted the petition filed by CAT, it did not grant the stay as asked by the petitioner. The CAT then challenged the Bombay High Court’s decision in the apex court.

Though a written order passed by the court only mentions issuing of notices to state and Central government, the bench orally asked the state government not to proceed with further work.

The state government’s chief standing counsel in the Supreme Court, Nishant Kanteshwarkar, confirmed the oral order passed by the Supreme Court. The court asked about the status of the project on which, CAT’s counsel told the bench, though work order has been issued and bhoomi poojan done, the actual work has not started.

The Shivaji memorial is coming up on 16-acre rock which is located 1.2 kilometre south west of Raj Bhavan. The state government plans to reclaim three-acre land for the memorial.

President Kovind gives assent to bill providing 10% quota for general category poor

The Constitution (124th Amendment) Bill 2019 provides 10 per cent reservation in jobs and educational institutions to the economically weaker sections in the general category.


Parliament on Wednesday had approved amending the Constitution to provide 10 per cent reservation to general category poor in jobs and education. (Express Photo by Partha Paul/File).
President Ram Nath Kovind on Saturday gave his assent to the bill providing 10 per cent reservation in jobs and educational institutions to the economically weaker sections in the general category, a notification in the official gazette said. The Constitution (124 Amendment) Bill, 2019 was passed in the Lok Sabha on Tuesday and the Rajya Sabha a day later.
The notification said the legislation will be known as the Constitution (103 Amendment) Act, 2019 and that it shall come into force on such date as the Centre notifies.

Though opposition parties in the Rajya Sabha backed the bill, it targeted the BJP-led government, accusing it of bringing the bill “in a haste” with the Lok Sabha elections in mind. Hitting back at the charges, Law Minister Ravi Shankar Prasad said “sixes are hit in the slog overs” of a cricket match and “more sixes will come”.

After Rajya Sabha voted 165-7 in favour of the bill — meeting the requirement of a majority of not less than two-thirds of the members present and voting for effecting a constitutional amendment — Prime Minister Narendra Modi had said he was “delighted” and “glad to see such widespread support for the Bill”. He called it “a victory for social justice”.
The 10 per cent reservation will be in addition to the existing cap of 50 per cent reservation for the Scheduled Castes, Scheduled Tribes and the Other Backward Classes, taking the total reservation to 60 per cent. Among the sections it targets are the poor among the upper castes.
The quota is targeted at economically weaker sections among the upper castes. General category individuals, all members of whose family together earn less than Rs 8 lakh per annum, and who have less than five acres of agricultural land, will qualify.



Second marriage is illegal but child born from it is legal: Supreme Court

The New Delhi 
Supreme Court has said that the child born from the second marriage (which is invalid) is valid and can not be denied the job on compassionate grounds (compassionate). Supreme Court Justice D.Y. Chandrachud and Justice MR Shah's Bench said that if the law considers the child to be valid, then it can not be allowed that such a child be deprived of employment on the basis of sympathy. Explain that, due to the first marriage, the second marriage in the Hindu Marriage Act is illegal.
Central Government had challenged the Bombay High Court verdict in the Supreme Court. The central government made Mukesh Kumar (renamed name) a defendant. Mukesh's father used to work in the railway. Mukesh is the father of the father's second wife. After his father's death, Mukesh sought a job on compassionate grounds. Railway rejected the application, but the Central Administrative Tribunal ordered Mukesh in favor. The matter reached the Bombay High Court. High Court, in reference to Section 16 of the Hindu Marriage Act, said that the second marriage is invalid while having a first marriage, but the child born to it is valid. The High Court said that considering the application of the railways compassionate job, please consider. After this the matter was moved to the Supreme Court. 

The Supreme Court upheld the verdict. 

The Supreme Court upheld the decision of the Bombay High Court in its decision. Supreme Court said Section 16 (1) of the Hindu Marriage Act is meant to protect such a child. Second marriage is considered illegal under Section 11, but the child born from such marriage is valid. No condition can violate the right to equality of the Constitution.

If the law considers the child to be valid, then such a child can not be refused a job on compassionate grounds. The 1992 Circular of the Railway has also dismissed the High Court, in which the child born from another marriage was refused job. The Supreme Court said that in three months, take the authority decision. There is no merit in the petition of the central government.

3 Yrs Experience Not Mandatory For Empanelment As Jail Visiting Advocate By Legal Service Committee

The Delhi High Court, on 12/01/19 , clarified that legal practitioners with less than three years experience at the bar can be empaneled as jail visiting advocates by the Delhi High Court Legal Service Committee.
To this end, Justice Vibhu Bakhru relied on Regulation 8(3) of the National Legal Services Authority (Free and Competent Legal Services) Regulations, 2010, which states that "no legal practitioner having less than three years‟ experience at the Bar shall ordinarily be empanelled."
The court asserted that the Regulation clearly indicates that experience of three years at the bar is not mandatory. It explained, "The word "ordinarily" clearly indicates that in certain cases, a legal practitioner having less than three years experience at the bar may also be empanelled.
"Although, former Judicial Officers may not have the experience at the bar but it cannot be disputed that they have sufficient experience, which would establish their competence and suitability to be empanelled for providing legal services."
The court was hearing a petition filed by Advocate Vibhas Kumar Jha, who had challenged the selection of legal practitioners for empanelment with the Delhi High Court Legal Service Committee on the panel of jail visiting advocates and panel of advocates (criminal).
He had applied for being empanelled as a lawyer on the panel of jail visiting advocates. He was now aggrieved by not being selected for empanelment.
He had now challenged the selection process on three grounds. Firstly, he alleged that applications of several candidates were entertained subsequent to the last date for filing applications. Secondly, he claimed that three candidates were selected without them participating in the interview held for such selection. Two of such candidates, he said, were selected despite not having experience as required under Regulation 8(3) of the National Legal Services Authority (Free and Competent Legal Services) Regulations, 2010.
Third, he claimed that four candidates were considered and selected when they had not even applied for being empanelled on the Jail Visiting Panel.
The court, however, noted that the first contention was a "factually erroneous assumption", as the misconception had arisen because the Committee had belatedly taken the decision to call those advocates for an interview who had earlier been exempted from appearing in the interview round.
As for the second contention, it pointed out that only three candidates were exempted from the interview round and that this was done in view of the experience and standing of these candidates. This, it opined, was acceptable.
"The Committee is charged with the function of maintaining a panel of lawyers for providing legal advice. The selection process is required to be meaningful. Clearly, there would be no reason to hold interviews where the same are a mere formality.
The Committee in its discretion had decided to exempt three candidates from the interview process on account of their professional standing and this Court finds no reason for questioning the said decision. Exempting such candidates from the interview process does not, in any manner, vitiate the integrity of the selection process," it observed.
The petitioner had further submitted that three candidates had applied for being empanelled on the Criminal Panel, but were instead considered and empanelled on the Jail Visiting Panel.
The court found merit in this contention, observing, "The notice inviting applications had expressly stipulated that a candidate would be considered for empanelment to one panel only. Thus, a candidate who had applied for being empanelled for handling criminal cases (Criminal Panel) could not be considered for any other panel. The action of the Committee in considering these candidates runs contrary to the terms of its notice."
Nevertheless, it opined that the only consequence that follows is that the selection of all the three candidates for empanelment on the jail visiting panel is liable to be quashed. However, it did not consider it apposite to grant any such orders since these candidates were not parties to the petition. The petition was, therefore, dismissed.

Criminal Revision: Can HC Ask Petitioner To Approach Sessions Court First? SC Leaves The Question Open

The Supreme Court refused to refer the question regarding choice of jurisdiction under Section 397 of Code of Criminal Procedure to larger bench.
The bench comprising Justice NV Ramana and Justice Mohan M. Shantanagoudar was considering an appeal against Delhi High Court order that had dismissed a revision petition under Section 397 CrPC, observing that as there are no special circumstances to bypass the forum of the Sessions Judge, and that the petitioner should approach the Sessions court first.
Background
Complaining that that his son had been wrongfully killed by the police, Chander Bhan Singh had approached the Delhi High Court in the year 2002. As directed by the High Court, CBI registered a case. Later CBI filed a Closure Report on the ground that the Lt. Governor, NCT Delhi did not find it to be a fit case to convey sanction for prosecution.
Chief Metropolitan Magistrate, Delhi, did not accept the Closure Report filed by the CBI and on considering the material before it, took cognizance against thirteen police officers, summoned them and committed the matter to Sessions court. The challenge against this order ultimately reached Apex court, which upheld the High Court order directing the Magistrate to reconsider the point of cognizance.
Thereafter, the Magistrate reheard the matter and accepted closure report. In 2014, the Complainant approached the High Court invoking its revisional powers. The High court, after keeping matter pending for about two years, dismissed his petition, granting liberty to approach Sessions Court first.
Reference refused
Before the Apex Court bench, the counsel for the parties, requested for a reference to a larger bench to, once and for all, decide and settle the question regarding choice of jurisdiction under Section 397 of Cr.P.C.
However, the bench said: "Having considered the fact that this case had taken place as long back as in the year 2002 and almost sixteen years have elapsed, and that it is ingrained in our criminal justice system that we seek to provide speedy justice as a matter of a constitutional right, we do not consider this case to be an appropriate one to decide on the question of law considering the peculiar facts and circumstances involved. "
Leaving the question of law open, the bench set aside the High Court order and restored the revision petition before the High Court to consider it afresh.

Parents obligated to spend on education of their children: Bombay HC

The HC quashed the magistrate court order after the son stated that he will repay Rs 15 lakh to his father in three months. The Court has held legally challenging such financial transactions shows deterioration of social values.

The court also observed that such litigations are the root cause behind piling of cases in courts. (Representational Image)
Quashing an issue of process order of the magistrate court against a man, accused by his father of not repaying Rs 29 lakh that he had paid for his education in the US, the Bombay High Court has held that parents are obligated to spend money on the education of their children and legally challenging such financial transactions shows deterioration of social values.
Issue of process means that if the magistrate court, while taking cognizance of an offence, thinks that there is sufficient ground for proceeding, it may summon the accused to be present at a certain time before such a magistrate.
While deciding the matter earlier this week, Justice Mridula Bhatkar observed: “To educate a child and spend money on his education as per the capacity is an obligation of the parents and if it is discharged, then the child should be grateful and it is not a legal issue. Such monetary transactions are out of love, affection, care and concern, which should not be transformed into litigations.”
“Court matters reflect the mirror image of culture, maturity and problem areas of the society in the country. The present litigation speaks in volume about the deterioration of social values on which exclusively the legal relationships stand,” the court said, adding that such litigations are the root cause behind piling of cases in courts.
The HC quashed the magistrate court order after the son stated that he will repay Rs 15 lakh to his father in three months. He also said he was ready to take care of his father.
In 2015, the father had filed a private complaint before the magistrate court, accusing his son of criminal breach of trust and cheating on the ground that he had borrowed Rs 29 lakh from him between May 2004 and March 2009 for his education in US but failed to return the money. He had furnished a letter dated June 27, 2008, written by his son, promising to repay Rs 29 lakh along with interest at 10.5 per cent. In his complaint, the father did not mention how he was related to the borrower. The magistrate court, while hearing the complaint, had ordered issue of process against the son. Following this, he had moved HC.
The son’s lawyer informed the HC that the father did not disclose the relationship before the magistrate court. He said the man’s parents had divorced in 2014. During the divorce proceedings, the son had stood by his mother and, so, out of vengeance, his father filed this complaint, the lawyer said.
The father’s lawyer told the court that the matter should not be looked at emotionally or by keeping the relationship on the background. “The matter needs a very practical approach… as it is a monetary transaction between two adults, the father did not mention about the relationship between them…,” the lawyer said.

Saturday, January 12, 2019

Civil Court Has No Jurisdiction In Matters In Respect Of Which Power Has Been Conferred On NCLT: SC

“The effect of the aforesaid provision is that in matters in respect of which power has been conferred on the NCLT, the jurisdiction of the civil court is completely barred.”

The Supreme Court has observed that the jurisdiction of the civil court is completely barred in matters in respect of which power has been conferred on the National Company Law Tribunal.
In Shashi Prakash Khemka vs. NEPC Micon, the bench comprising Justice L Nageswara Rao and Justice Sanjay Kishan Kaul was considering whether an issue qua the transfer of shares has to be adjudicated by civil court or by the Company Law Board.
In this case, the Madras High Court had held that the Company Law Board would not have jurisdiction in the matter and as there is serious dispute as to title, the matter should be relegated to a civil suit. The appellants submitted before the apex court bench that subsequent legal developments have a direct effect on the present case as the Companies Act, 2013, has been amended which provides for the power of rectification of the Register under Section 59 of the said Act.
"The effect of the aforesaid provision is that in matters in respect of which power has been conferred on the NCLT, the jurisdiction of the civil court is completely barred. It is not in dispute that were a dispute to arise today, the civil suit remedy would be completely barred and the power would be vested with the National Company Law Tribunal (NCLT) under Section 39 of the said Act," the bench said, referring to Section 430 of the Companies Act, 2013.
Relegating the parties to NCLT, the bench said: "We are conscious of the fact that in the present case, the cause of action has arisen at a stage prior to this enactment. However, we are of the view that relegating the parties to civil suit now would not be the appropriate remedy, especially considering the manner in which Section 430 of the Act is widely worded."

Friday, January 11, 2019

Company moves Madras high court against conduct of GIM 2019

The  Madras high courton 11/01/19 refused to admit a plea moved by a private company seeking to stay the conduct of the Global Investors Meet (GIM) 2019 in Chennai till the government frames guidelines for participation.
Cascade Energy Pvt Limited, a Singapore-based company, wanted the court to direct the state to frame guidelines to protect the foreign investors from getting cheated by the tainted companies in the interest of the nation.
Senior counsel S Prabakaran said the petitioner company had been cheated to the tune of Rs 33 crore after it had invested in an Indian company called Zynergy Solar Projects and Services Private Limited.

The petitioner company purchased 51% of equity shares belonging to Zynergy Solar Projects and Services Private Limited believing the words of returns towards the investment and did not receive any returns for the investments made by the petitioner. The petitioner found no developments towards investments. The money invested in the said company were not utilised for the purpose for which the same has been invested. But it was able to understand the funds which were invested in the said company had been misused and transferred with mala fide intention into various shell companies for personal gains, Prabakaran added.
Claiming that such companies are utilising GIM as a platform for committing such fraud on foreign companies, senior counsel P Wilson submitted that it was not against the meet but only wanted the government to frame appropriate guidelines to protect the interest of investors, particularly from foreign nations.
"The name and fame of Tamil Nadu is under serious threat. When foreign companies wanted to invest in the state, the government must bring in at least basic guidelines to protect them. Many companies which are in insolvency and bankruptcy proceedings are allowed to participate in the event," Wilson added.
Wondering why the petitioner has not added such fraudulent company as party respondent to the plea, a division bench of M Sathyanarayanan and P Rajamanickam refused to admit the plea. “Implead them as party respondents so that we could consider the plea on January 18,” the bench said.

Thursday, January 10, 2019

PM-led selection panel removes Alok Verma as CBI chief

The high-powered selection panel headed by Prime Minister Narendra Modi on Thursday decided to remove Alok Verma as the chief of Central Bureau of Investigation (CBI), said officials.

Alok Verma, a 1979-batch AGMUT cadre IPS officer, has been removed from the post on charges of corruption and dereliction of duty making him the first chief in the history of the agency to face such action, they said.

The decision came following the second meeting of the PM-led selection panel, which also included Congress leader Mallikarjun Kharge and Justice AK Sikri, who was nominated by Chief Justice of India Ranjan Gogoi to represent him.

There were eight counts of charges against Alok Verma in the CVC report presented before the committee.

The decision for the removal was taken by a majority with Kharge opposing the move, they said.

The high-powered panel had held its first meeting on Wednesday. The meeting was inconclusive.

Earlier, Supreme Court had reinstated Verma after he was sent on forced leave by the government. The top court had asked the selection panel to decide on the fate of Alok Verma.

SC had asked the government to convene the meeting within a week of its order. It had quashed the government's unprecedented "overnight" order issued in October last year, stripping Verma of his powers and sending him on leave after he and his deputy traded corruption charges, sparking a bitter feud.

The CBI chief and his deputy special director Rakesh Asthana were sent on the forced leave over two months ago. They had accused each other of corruption.

Verma, who resumed office on Wednesday, had revoked most of the transfers done by M Nageshwar Rao, who was appointed as the interim CBI chief in his absence.

Modified Cars, Bikes are illegal - Supreme Court

Reiterating the amendment to the Motor Vehicles Act, the Supreme Court outlawed any modification to vehicles that would come outside the purview of what is mentioned on the Registration Certificate!

Although this was always known, following an opposing judgment by a divisional bench in Kerala, the Supreme Court has clarified that the law does not permit any type of modification that alters any specification made by the manufacturer or to what is mentioned on the vehicle registration certificate. In its statement the Apex court said that it wanted known as the clear intent of the court that a vehicle cannot be altered so as to be exclusive of the particulars contained within a certificate of registration or are at a variation with the original specifications provided by the vehicle manufacturer.

“No vehicle can be altered so as to change original specification made by the manufacturer. Such particulars cannot be altered which have been specified by the manufacturer for the purpose of entry in the certificate of registration,” a bench of Justices Arun Mishra and Vineet Saran said in its verdict. The court wisely left the statement open-ended without specifying any particulars about which modifications are likely to put you in trouble, leaving it to authorities to use the law to fine offenders as they see fit.  According to the court, alteration or modification is a change in the structure of a vehicle which results in change in its basic feature. The top court set aside the judgment of a division bench of the Kerala High Court which had said that structural alteration was permissible as per the provisions of the Kerala Motor Vehicle Rules, 1989. The court ruled that any changes that could range from modified exhausts, that change the decibel and emission output of a vehicle to changes in paint, tyre size and even fixtures of modified parts like spoilers and body panels can be considered outside the purview of the law.

In its closing statement, the court mentioned that the amended Motor Vehicle act provision specified the absolute fact that vehicles cannot be altered, in order to ensure roadworthiness of the vehicle in terms of safety and the protection of the environment.

READ FULL JUDGMENT

Wednesday, January 9, 2019

‘Don’t know Hindi? Go back to Tamil Nadu’

Airport immigration officer denied a PhD student clearance for not speaking Hindi; US-bound student sparked a twitter debate by tagging PM Modi, Rahul Gandhi; Police orders probe.

Mumbai Police’s Special Branch has ordered a probe into the allegations made by a 27-year-old PhD student that an immigration officer at the Mumbai International Airport refused to give him clearance on Tuesday night because he could not converse in Hindi. After the incident, Abraham Samuel, a biomedical engineer completing his Doctorate in Chemistry at Clarkson University in Potsdam, US, sparked a debate with tweets tagging not just Prime Minister Narendra Modi, External Affairs Minister Sushma Swaraj, but also opposition leaders Rahul Gandhi, DMK’s MK Stalin and Shashi Tharoor.

“Was just denied immigration by an immigration officer at counter 33 Mumbai Airport, for knowing only Tamil and English and NOT Hindi! What a disaster! Reported the officer, hope they take action,” said his pinned tweet, which was retweeted 1,512 times and got 1,892 likes.

“This is one reason why no central parties are going to set foot in Tamil Nadu! The immigration officer not only did not speak to me in English, but suggested that I find a Tamil immigration counter!” his next tweet said, tagging Congress leader Rahul Gandhi. “I’m proud to be an Indian and even more proud to be a Tamil! If that’s a problem with you, then you are not fit to call yourselves Indians!” “I’m Indian, I DON'T SPEAK HINDI! DEAL WITH IT! @HMOIndia Don’t abuse Indians who speak their own beautiful languages!” he said in a series of tweets.

Speaking exclusively to Mirror while flying from Paris to Boston on board an Air France flight, Samuel said the incident happened when he flew into Mumbai from Chennai on Tuesday night, after spending a month with his family in Madurai. He was clearing immigration at counter no 33 in the departure area between 12.30 and 1am.

“The same officer let a foreign national (lady) go after questioning. He obviously communicated in English with her. But on seeing me, he expected me to understand Hindi, and when I said, ‘Sir, sorry, I don’t understand Hindi’, he threw a tantrum and asked me to find another counter,” Samuel told Mirror on Wednesday evening.

“He repeatedly asked me to go to Tamil Nadu. After complaining about this officer to the immigration office, when they produced this officer before me, he didn’t change his behaviour. He again said that I should know Hindi being in India or go to Tamil Nadu, even in front of his supervisors,” he said, adding that he had to go to the next counter where the officer cleared his immigration. Samuel said he had no time to lodge a formal complaint but the CCTV footage would capture the entire incident. He had to board the flight to Paris as the Air France flight goes through Paris, Boston, and then finally New York.

His tweets tagging political leaders sparked off varied reactions on twitter. Some accused him of having an anti-BJP agenda; some thought he was trying to reignite the Hindi vs Tamil debate. “Yes, some people on Twitter are accusing me of having an agenda. I’m just another Indian, and I raise my voice when needed. My true frustration is (that) everywhere else, except in India, they respect me and my language. In my home country, people like them deny basic rights on the basis of languages,” he said, adding that he hoped the central government better educates its officers. He said he was emailing a formal complaint to the Foreigner Regional Registration Office (FRRO) and would demand an apology from the officer concerned.

Additional Commissioner of Police Special Branch II, CID Supriya Patil-Yadav said, “We are conducting a probe to find out if the allegations are correct and the circumstances that could have led to the altercation. If it’s correct, I must say it’s very unfortunate and that such unprofessional, insensitive conduct was exhibited by the immigration officer. By Thursday, our probe will reach its conclusion.” Patil-Yadav said that if the officer is found guilty, he will be sent for re-skilling, retraining and re-sensitisation.

A Special Branch source said, “The immigration staff usually puts in 12 hours in a shift and it could be that some of them slip up in their conduct. That is why we counsel them and put them through a stress-management session as well.”

Monday, January 7, 2019

THE PREVENTION OF MONEY-LAUNDERING RULES,2005

Supreme Court allows Monsanto to claim patents on GM cotton

The Supreme Court on 8/1/2019 allowed Monsanto to claim patents on its genetically modified cotton seeds in the world's biggest producer of the fiber, a company source said. 

U.S. seed maker Monsanto, which was bought by German drug and crop chemical maker Bayer AG, last year appealed to India's Supreme Court against a ruling by the Delhi High Court which decreed that the world's biggest seed maker cannot claim patents on its GM cotton seeds. 

The Delhi High Court had concurred with Indian seed company Nuziveedu Seeds Ltd (NSL), which argued that India's Patent Act does not allow Monsanto any patent cover for its genetically modified (GM) cotton seeds. 

FULL JUDGMENT


IKEA accidentally plays porn on big screen at HK store

An IKEA store has hit the headlines this week after they accidentally played a pornographic film on a big screen for several minutes. The video shocked customers at the furniture store in Causeway, Bay Hong Kong on Tuesday. According to reports, the graphic video showed a man masturbating. A shopper said he spent three minutes watching the footage before going inside to alert staff members of the situation. A female IKEA worker is said to have attempted to cover up the giant screen using a piece of drawing paper. However, it was too small to cover the entire thing. It is currently unclear how the video came to be played outside the storefront, but it’s thought a prankster may have hacked the system as some sort of joke.

SC notice to govt on Sec 66A of IT Act being in use

The Supreme Court on Monday sought the Centre’s response to a plea alleging that despite the striking down of draconian Section 66A of the IT Act in 2015 by the apex court, police in various states were still invoking it in FIRs to clamp down on free speech on social media platforms.
A bench of Justices R F Nariman and Vineet Saran issued notice to the Union government on an application by NGO People’s Union for Civil Liberties,  alleged that the Centre had not taken enough steps to communicate the 2015 judgement of the SC in Shreya Singhal case to the state authorities to make them desist from invoking the quashed provision.
PUCL said that the SC judgement had rendered “all investigations, prosecutions and convictions based on Section 66A of IT Act illegal and it had forestalled use of Section 66A after the decision was pronounced.” Citing a recent working paper by a body engaged in the IT sector, the NGO said “the provision continues to be invoked by police across India in FIRs registered after the pronouncement of the judgement.”

Supreme Court reinstates Alok Verma as CBI director, quashes govt’s removal order

Alok Verma reinstated as CBI chief, govt’s midnight order quashed

CBI vs CBI LIVE updates: The Supreme Court reinstated Alok Verma as the CBI chief. The bench had reserved its verdict in December.

Alok Verma was reinstated as CBI Director by the Supreme Court 8/1/19 over two months after the government stripped him of his powers and responsibilities in a surprise midnight order on October 23.
In a big jolt to the Centre, a three-judge bench headed by Chief Justice of India  Ranjan Gogoi quashed the orders of the Chief Vigilance Commission recommending Verma’s removal. The court has, however, has directed Verma not to take any policy decisions till a statutory Committee meets on his removal within a week.
The Supreme Court also set aside the appointment of M Nageswara Rao as interim chief of CBI.
Both Verma and his deputy, Rakesh Asthana, were divested of their roles in the CBI following a bitter fallout. Joint Director M Nageswara Rao was appointed as the interim in-charge of the agency. Verma challenged his removal in the apex court, saying the decision was against the rules that mandate that the CBI chief has two years in office. Another petition was filed by NGO Common Cause in the case.
Verma accused Asthana of accepting bribes from a Hyderabad-based businessman to help him get off the hook in the Moin Qureshi case money laundering case. The Special Director shot back with a dozen charges listed against Verma, including counter charge relating to Moin Qureshi case, where he alleged that it was the CBI director who accepted a bribe.

UK visas to be costlier for Indian, non-EU migrants from 8 January

The British government plans to double the immigration health surcharge (IHS), introduced in 2015, enables migrants to access the National Health Service (NHS) during their UK stay. The IHS has so far raised over £600 million from Indian and non-EU citizens with UK visas valid for over six months.

The overall cost of a UK visa for Indian and non-EU citizens will rise from Tuesday as part of plans to raise the immigration health surcharge (IHS), which is payable when students, professionals and family members apply for the visa.
The IHS, introduced in 2015, enables migrants to access the National Health Service (NHS) during their stay in the UK. Since 2015, the surcharge has raised over £600 million from Indian and non-EU citizens with UK visas valid for over six months. 
A Home Office spokesperson told  “We can confirm that the Immigration Health Surcharge will be doubled on 8 January 2019. The surcharge will rise from £200 to £400 per year, with the discounted rate for students and those on the Youth Mobility Scheme increasing from £150 to £300”.
“Migrants who make an application on or after January 8, 2019 will pay the new surcharge rate”.

The hike will affect all visa applicants from India: professionals, students as well as family members. An Indian professional with a family of four, for example, moving to the UK to take up a job, will pay £1600 per year, besides other visa-related costs. 
The IHS is not levied on immigrants who achieve the status of permanent residents after a period of legal stay in the country. The IHS hike has been opposed by the British Association of Physicians of Indian Origin (Bapio), which wrote to home secretary Sajid Javid to drop it. 
Bapio, which has been coordinating with health authorities to meet NHS shortages by recruiting from India on an ‘Earn, Learn and Return’ basis, said: “We believe a further charge of £200 per head is unfair and discriminatory”.
“NHS is finding it difficult to recruit and retain staff; such measures by the Home Office will further deter high quality international medical graduates to come and work for the NHS”.

The Home Office said that it is only right that people who come to the UK should contribute to the running of the NHS: “The surcharge offers access to health care services that are far more comprehensive and at a much lower cost than many other countries.”
“The income generated goes directly to NHS services, helping to protect and sustain our world-class healthcare system for everyone who uses it,” it said.
Immigration minister Caroline Nokes added: “We welcome long-term migrants using the NHS, but the NHS is a national, not international health service and we believe it is right that they make a fair contribution to its long-term sustainability”.
“It is only fair that people who come to the UK make a contribution to the running of the NHS, and even with the increase we still continue to offer a good deal on health for those seeking to live in the UK temporarily.”

Sohrabuddin Judgment


Read the Sohrabuddin Judgment below


Full Judgment 


Sunday, January 6, 2019

US top court to hear vulgar trademarks case

The US Supreme Court on Friday agreed to hear a case brought by a clothing line named “Fuct” which the government has refused to register, claiming it would promote vulgarity. The case pits a provision of US trademark law that allows the government to deny requests on the basis “immoral” or “scandalous” words against the principles of free speech in the US Constitution. A date of hearing has not been fixed. The brand was founded in 1990 by designer Erik Brunetti.
The government argues the contested legal provision “reflects Congress’s judgment that the federal government should not promote the use of graphic sexual images and vulgar terms by granting them the benefits of registration”. AF

Five photos as proof must in parole for wedding, engagements: Gujarat high court

Prisoners may go and enjoy wedding and engagement revelries after coming out on parole, but they will have to show proof to Gujarat high court that the rituals, festivities had really taken place.

Gujarat high court  ordered three prisoners to supply proof of the festivities and rituals of marriages and engagements for which they sought parole. The HC has ordered jail authorities to release them on parole on condition that they would submit at least five photographs showing the prisoners’ presence in rituals and dinner parties involving relatives to the HC registry before they surrender themselves to jail on completion of parole period.

Justice V B Mayani took undertaking from three convicts, who wanted to get out on parole to attend social functions, to supply five photographs and ordered them to submit the pictures to the registry. Shafi Mohammed Shaikh is serving his three-year jail term. He is behind bars for 1.5 years. He wanted to attend his son’s engagement ceremony which is scheduled between January 7 and 9. The district magistrate rejected his request for parole, and hence he filed a petition. The HC granted him three-day parole and took an undertaking from him to supply the photographs.

Panchmahal’s Suleman Pir alias Tiger is serving his sentence, and wanted to attend the engagement of his son and two marriages in his family on January 13. He got 10-day parole on the same condition that he would produce photographs of engagement and the two marriage ceremonies.

During the hearing of these petitions, the invitation cards were produced before the HC as proof of scheduled functions. The judge even commented that all the invitation cards appeared to have been printed at one place only since none of them contained names and addresses of the printers.

The third such case was of Rajkot’s Firoz Sama, a convict who wanted to get out of jail for a month for his own marriage scheduled on January 9. Justice Mayani granted him parole for seven days, but he will have to produce photographs of different functions showing “applicant-convict as a groom, photographs of him performing different marriage rituals as well as of the occasion of ‘Dawat’, in which the family members and other relatives are taking meals together”.

HC quashed GSHSEB chairman’s decision to remove member

AHMEDABAD: Gujarat high court has pulled up the Gujarat Secondary and Higher Secondary Education Board (GSHSEB) chairman A J Shah for his autocratic decision to remove a board member for giving an interview on a television channel.

Gujarat High Court quashed the board’s decision by terming it an excess of use of power and by saying that the courts are there to control it.

Priyavadan Korat, an elected member of the board representing the parent’s associations, had given an interview on a television channel on October 12 in which he had lambasted the board for its alleged irregularities and corruption. This did not go down well with the board chairman, who made a recommendation for his removal and ultimately removed him from the post.

Shah issued a show-cause notice to Korat on October 22. He replied to the notice and sought documents on basis of which he was issued the notice. He was not supplied the documents and on November 22, Shah passed an order for Korat’s removal. Korat knocked at the HC doors complaining about arbitrary and autocratic behaviour on part of the chairman without taking other office bearers and members of the board into confidence and without discussing the matter with them.

When Justice J B Pardiwala heard the case, he questioned the state government and the board whether the chairman Shah alone is in himself the board and whether he is required to take decisions without passing any resolution. The HC quashed the order of Korat’s removal from the board but permitted the board to take a fresh decision on the issue according to rules after proper deliberation.

The high court cited five reasons for interfering with a decision taken by the board chairman with observation that the courts otherwise would not like to take a decision on whether the chairman’s conclusions about Korat’s behaviour requiring his removal was proper or not. But the judge observed that the courts are there to control excesses of administrative powers. “The role of the courts in this field is to serve as a check against the excess of power and abuse of the exercise of power in derogation of private right. The 

Court stays Kinjal Dave from singing ‘Char bangadi wari...’

A local court has restrained the famous Gujarati singer Kinjal Dave from singing her smash hit ‘Char Char Bangadi Wari Gadi’ following a copyright row.
A city sessions court had restricted Dave and two music companies – the Mumbai-based RDC Media Pvt Ltd and the Junagadh-based Studio Saraswati – and their partners, agents who conduct live stage concerts from selling the album in any form till January

22. The court passed this exparte order earlier this week and issued a notice to the singer, seeking her reply by the next date of hearing.

The court issued restraining orders after one Red Ribbon Entertainment Pvt Ltd filed a suit alleging infringement of its copyright on the song. The company claimed that it had bought the rights of the song on April 18, 2017 from a music composer, Kartik Patel, who is known as Kathiyawadi King. The company also produced an assignment deed executed with Patel in court.

The company claimed it was Patel who composed the song and uploaded it on You-Tube on September 29, 2016. Dave copied the lyrics and music and recorded the same song and uploaded a video on You-Tube on December 20, 2016, three months later. The company accused Dave and the music companies from Mumbai and Junagadh of infringing on its copyright. The lawyers played both songs before commercial court judge Moolchand Tyagi to support their claim that Dave copied the song from Pat-el’s album and pleaded that if Dave wasn’t restrained from displaying and singing the so-ng, Red Ribbon Entertainment would suffer “irreparable loss”.

After hearing the arguments by Red Ribbon’s lawyers and listening to both songs, the court said, “At this juncture, prima facie it appears that the wording and music of both songs are deceptively similar and the defendants (Dave and two companies) have copied “Char Bangadi Wari Gadi” from the plaintiff's (Red Ribbon) song. Therefore, at this juncture, in my considered view, the plaintiffs have, prima facie, a case in their favour and balance of convenience also lies in the favour of the plaintiff.”