Wednesday, May 29, 2019

Scrap driving licences of those who can't read: HC

Observing that an illiterate person is "virtually a menace for pedestrians" on the road, a single bench of the Rajasthan high court has directed the state government to withdraw driving licences given to persons who can't read signboards, warning signs and other signals. 

The court has directed the transport authorities to issue appropriate instructions, lay down guidelines and take action in cases where licenses were issued to persons unable to read and write.

While dismissing the writ petition of one Deepak Singh, who requested the court to direct the transport department to issue him a driving licence for a heavy motor vehicle (HMV) though he was illiterate, Justice Sanjeev Prakash Sharma said, "In the opinion of the court, Motor Vehicle Rules are required to be framed not only for the benefit of persons who seek licences but must also take into consideration the public who are using the roads. "

"A licence cannot be allowed to be issued to an illiterate person to drive any kind of vehicle as he is virtually a menace for pedestrians. He would not be in a position to understand road signs and notices of caution written on the boards for human safety on the highways as well as on the roads in the cities." 

Central government officials said though the Central Motor Vehicle Rules have no provision of a minimum qualification to obtain a driving licence for a non-commercial LMV, every applicant has to pass the test, which comprises reading road and traffic signs and some objective questions.

It is only for a driving licence for a commercial vehicle that an applicant must have a Class-VIII pass certificate . Following a Supreme Court order of July 2017, the road transport ministry had in April 2018 done away with the requirement of a commercial licence for driving taxis, three-wheelers, e-rickshaws and two-wheelers (food delivery, etc).

This allowed drivers to use their private licences to drive commecrial LMVs. "So, practically, the minimum qualification of Class VIII is applicable only for obtaining a licence to drive an HMV, which includes trucks and buses," said a government official.

Tuesday, May 28, 2019

GST Evaders Can Be Arrested: SC Upholds Telangana HC Judgment

The Supreme Court has dismissed a plea challenging Telangana High Court judgment that held that a person can be arrested by the competent authority in cases of Goods and Service Tax (GST) evasion.
The vacation bench of Chief Justice of India Ranjan Gogoi and Justice Aniruddha Bose, dismissing the Special Leave Petition, said that it is not inclined to interfere.
The Division bench of the Telangana High Court, in April, comprising of V. Ramasubramanian and Justice P. Keshava Rao had dismissed a batch of writ petitions seeking protection from arrest for alleged tax evasion. The challenge was against the summons issued by Superintendent (Anti-Evasion) of the Hyderabad GST Commissionerate under the Central Goods and Services Tax Act, 2017. The bench observed that sub Section (1) of Section 69 of the Act empowers the Commissioner to order the arrest of a person, when such a person is believed to have committed a cognizable and non bailable offence. It had said:
"If reasons to believe are recorded in the files, we do not think it is necessary to record those reasons in the authorization for arrest under Section 69(1) of the CGST Act. Since Section 69(1) of the CGST Act, 2017 specifically uses the words “reasons to believe”, in contrast to the words “reasons to be recorded” appearing in Section 41A(3) of Cr.P.C., we think that it is enough if the reasons are found in the file, though not disclosed in the order authorizing the arrest."
The state had submitted before the High Court that the petitioners before it were allegedly involved in incorporating several partnership firms and had claimed input tax credit on the basis of certain invoices, without there being any actual physical receipt of goods. It had alleged that the fraudulent input tax credit claimed by them was to the tune of Rs 224.05 crore.
The High court had also rejected the contention that here cannot be an arrest even before adjudication or assessment. It had said:
"To say that a prosecution can be launched only after the completion of the assessment, goes contrary to Section 132 of the CGST Act, 2017. The list of offences included in sub Section (1) of Section 132 of CGST Act, 2017 have no co relation to assessment. Issue of invoices or bills without supply of goods and the availing of ITC by using such invoices or bills, are made offences under clauses (b) and (c) of sub Section (1) of Section 132 of the CGST Act. The prosecutions for these offences do not depend upon the completion of assessment."
The bench also did not favour the argument raised by the petitioners that since all the offences under the Act are compoundable under sub Section (1) of Section 138 of the CGST Act, 2017, subject to the restrictions contained in the proviso thereto and that therefore, there is no necessity to arrest a person for the alleged commission of an offence which is compoundable. The court also had observed that the furthering of enquiry/ investigation is not the only object of arrest.

Monday, May 27, 2019

Accused Can't Be Indefinitely Kept In Jail For His Inability To Produce Registered Surety For Reasons Beyond His Control: SC

The Supreme Court has observed that an accused cannot be indefinitely kept in jail for his inability to produce registered surety for reasons beyond his control.
The bench comprising Justice Indira Banerjee and Justice Sanjiv Khanna directed the Chief Metropolitan Magistrate, Calcutta, to consider modifying the orders passed in the bail plea of one Wasim Ahmed, without insisting on registered surety.

Chief Metropolitan Magistrate of Calcutta had granted bail to Wasim Ahmed on condition of producing registered surety. He had approached the Apex Court directly against this order due to Advocate strike in West Bengal. 
He submitted before the court that he is a resident of Nagpur, and is not in a position to produce any registered surety. It was also submitted before the court that his mother is critically ill, for which he needs to go home. After hearing the counsel of Wasim Ahmed, the bench said:


Brother In Law Can Be Ordered To Pay Maintenance To Widow Under Domestic Violence Act, Says SC

The Supreme Court has observed that a brother in law can be ordered to pay maintenance to a widow.
In this case, the lady and her deceased husband were residing at a house which constitutes ancestral Hindu Joint Family Property.The deceased husband and the brother in law jointly carried on a business of a kiryana store. 
The woman, filed a complaint under Domestic Violence Act alleging that, after the death of her husband she and her child was not permitted to reside in her matrimonial home. The Trial court passed an interim order granting monthly maintenance in the amount of Rs 4,000 to the woman and Rs 2,000 to the child. The brother in law was directed to pay the said amount. This order came to be affirmed by the High court.
In appeal before the Supreme Court (Ajay Kumar vs. Latha @ Sharuti), the 'brother in law' contended that there was no basis under the provisions of the Act to fasten liability on him.
But, the bench comprising Justice DY Chandrachud and Justice Hemant Guptaobserved that the substantive part of Section 2(q) indicates that the expression "respondent" means any adult male person who is, or has been, in a domestic relationship with the aggrieved person and against whom relief has been sought. It said
"The proviso indicates that both, an aggrieved wife or a female living in a relationship in the nature of marriage may also file a complaint against a relative of the husband or the male partner, as the case may be.. Section 2(f) defines the expression 'domestic relationship' to mean a relationship where two persons live or have lived together at any point of time in a shared household when they are related by consanguinity, marriage or through a relationship in the nature of marriage, adoption or are members living together as a joint family…. All these definitions indicate the width and amplitude of the intent of Parliament in creating both an obligation and a remedy in the terms of the enactment."
The court said that the averments in the complaint prima facie indicate that the case of the complainants is that the house where she and her spouse resided, belong to a joint family. Upholding the order, the bench said:
"Ultimately, whether the requirements of Section 2(f); Section 2(q); and Section 2(s) are fulfilled is a matter of evidence which will be adjudicated upon at the trial. At this stage, for the purpose of an interim order for maintenance, there was material which justifies the issuance of a direction in regard to the payment of maintenance."


Thursday, May 23, 2019

Driving licence - Medical conditions you need to tell the DVLA about to avoid £1,000 fine

MOTORISTS must tell DVLA about different medical conditions on their driving licence to avoid landing a fine.

British motorists are being warned that they could leave themselves open to fines and prosecution for failing to inform the DVLA about medical conditions. Drivers are required to inform the Driver and Vehicle Licensing Agency (DVLA) of medical conditions which could affect their driving. Motorists could receive a fine of up to £1,000 if a medical condition affects their driving and they fail to tell the agency. The list of medical conditions drivers must let the DVLA know about is around 200, which means it is worth letting checking if you are unsure.

Some conditions are obvious such as a brain injury which could trigger seizures and could have a very obvious effect on your driving.
However, things such as eating disorders or arthritis must also be told to the vehicle agency.

Saturday, May 18, 2019

Scope Of Enquiry Under Section 202 CrPC: SC Explains

The Supreme Court, in a judgment delivered recently, has succinctly explained the scope of enquiry under Section 202 of the Code of Criminal Procedure.
In Birla Corporation Ltd. v. Adventz Investments and Holdings Ltd, the Apex Court bench of Justice R. Banumathi and Justice R. Subhash Reddy observed that the purpose of the enquiry under Section 202 Cr.P.C. is to determine whether a prima facie case is made out and whether there is sufficient ground for proceeding against the accused. Page 19-29 of the judgment discusses the scope of Section 202 CrPC.
The bench said that, on presentation of the complaint by an individual, the Magistrate is required to examine the complainant and the witnesses present, if any. Thereafter, on perusal of the allegations made in the complaint, the statement of the complainant on solemn affirmation and the witnesses examined, the Magistrate has to get himself satisfied that there are sufficient grounds for proceeding against the accused and on such satisfaction, the Magistrate may direct for issuance of process as contemplated under Section 204 Cr.P.C. The court added that the allegations in the complaint and complainant's statement and other materials must show that there are sufficient grounds for proceeding against the accused. It said:
"The scope of enquiry under this section is extremely restricted only to finding out the truth or otherwise of the allegations made in the complaint in order to determine whether process should be issued or not under Section 204 Cr.P.C. or whether the complaint should be dismissed by resorting to Section 203 Cr.P.C. on the footing that there is no sufficient ground for proceeding on the basis of the statements of the complainant and of his witnesses, if any. At the stage of enquiry under Section 202 Cr.P.C., the Magistrate is only concerned with the allegations made in the complaint or the evidence in support of the averments in the complaint to satisfy himself that there is sufficient ground for proceeding against the accused."
The court also added that, under amended sub-section (1) to Section 202 Cr.P.C., it is obligatory upon the Magistrate that before summoning the accused residing beyond its jurisdiction, he shall enquire into the case himself or direct the investigation to be made by a police officer or by such other person as he thinks fit for finding out whether or not there is sufficient ground for proceeding against the accused. Referring to various judgments on the subject:
"The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. The application of mind has to be indicated by disclosure of mind on the satisfaction. Considering the duties on the part of the Magistrate for issuance of summons to accused in a complaint case and that there must be sufficient indication as to the application of mind and observing that the Magistrate is not to act as a post office in taking cognizance of the complaint."
Some other judgments referred by the bench on the subject are the following:

Friday, May 17, 2019

Insurers can’t deny cover for mental illness, adventure sports enthusiasts

Insurance regulator IRDAI on Friday came out with new rules that will have widespread ramifications for health insurers and the general public. Insurers henceforth cannot decline coverage to those who have used opioids or anti-depressants. Nor can they exclude those with a history of clinical depression, personality disorders, sociopathy, psychopathy, or neurodegenerative disorders.
They cannot exclude kids suffering from development disorders such as Down’s syndrome, cerebral palsy, and autism, or those suffering from dyslexia, stammering and other disorders of speech and language. Batting for the LGBTQ community, IRDAI has said that insurers cannot discriminate on the basis of gender and identity. Insurers cannot refuse to provide coverage or reject claims if a person is on life support. Insurers can reject claims only if the patient is certified as being in a vegetative state, but even then insurers will be required to provide coverage/pay expenses till that date.
For young girls and older women who suffer from excessive bleeding, hormonal changes due to the onset of puberty or menopause, insurers can no longer exclude coverage or payment for treatment costs. Insurers cannot deny coverage to geriatric patients, suffering from age-related macular degeneration (ARMD) and those suffering from rare or orphan diseases.
Insurers will have to cover adventure sports such as dirt biking, paragliding, whitewater rafting, go-karting, F1 racing, and ethnic sports like jallikattu and kambala. This would be a relief to sports enthusiasts, clubs and adventure trip organisers.
Another important decision is that at the point of claims if the person is discovered to be a smoker or suffering from a disease/pre-existing condition, the insurer cannot reject the claim if he/she has been availing of insurance for eight years in continuity.
IRDAI has said that insurers cannot exclude coverage or reject claims if the policyholder has “failed to seek or follow medical advice or follow treatment”. Often patients undergoing treatment for a condition stop the treatment towards the final stages or stop taking drugs midway. Insurers have been known to penalise patients for failure to follow through on a prescribed regime.

UK visa racket busted in Valsad- Gujarat

Travel Agent And Two Clients Allegedly Forged Documents

Police busted a racket of visa application to British High Commission on the basis of forged documents with the arrest of a 32-year-old travel agent and two of his clients in Valsad on Friday. Police produced the travel agent in a local court which remanded him in their custody until May 21. Six people have been booked altogether in this connection at Valsad town police station.
Accused Soyeb Saiyed is the owner of Soby Tour and Travel. Tabrez Sharafat Husain Gebi and Mohamed Shakil Hanif Shaikh, both from Valsad, who two were arrested, had applied for a visa to the UK in 2018 through Saiyed. Three others who were booked were Mohmed Imran Basir Ahmed Doctor, Sarfaraz Abdul Kadir Saiyed and Riyaz Chhotu Panjwani. Police investigation revealed that Sarfaraz and Riyaz are currently in South Africa.

The complaint was lodged by Darren Fraser, immigration liaison officer of British High Commission, New Delhi.
Police suspect around 40 visa applications of clients for the United Kingdom had been filed by Saiyed.
Detailed checking by document verification unit of British High Commission has found that Saiyed had submitted forged income tax returns, bank balance certificates and travel agency letters on behalf of his clients.
“It is an unusual case where so many applications with forged documents had been filed,” said Sunil Joshi, superintendent of police, Valsad. TOI

Wednesday, May 15, 2019

Temporary removal of document for replication of content can be the subject of Theft, Supreme Court

The Supreme Court recently held that information replicated from a document even temporarily removed from its lawful custody, will fall within the purview of “movable property” and thus can be the subject matter of theft under Section 378 of the Indian Penal Code.
While deciding the point of law, a Bench of Justices R Banumathi and Subhash Reddyheld,
“Information contained in a document, if replicated, can be the subject of theft and can result in wrongful loss, even though the original document was only temporarily removed from its lawful custody for the purpose of extracting the information contained therein.”
As per the facts of the case, the appellant Birla Corporation had alleged the theft of fifty-four of its documents by the respondents, Adventz Investments and Holdings. A criminal complaint was filed by the appellant company alleging the commission of offences punishable under Sections 379, 403 IPC read with Section 120-B IPC. This complaint was filed in the midst of a complex web of litigation between the parties.
However, the Calcutta High Court had quashed the complaint. The High Court held that since originals of the documents were still in the custody of the complainant, taking away the information contained in such documents cannot be considered to be “movable property”. Thus, the temporary removal of the documents for taking information by itself cannot be the subject of the offence of theft. The appellant company then approached the Supreme Court in appeal.
The question before the Supreme Court was whether temporary removal of the documents and using them in the litigation pending between the parties would amount to theft.
The following requirements need to be established in order to make out a case of theft under Section 378 IPC:
  • Dishonest intention
  • To take away movable property
  • For wrongful gain
  • To cause wrongful loss
While interpreting whether the replication of information from a document would fall under the scope of movable property, the Court noted,
““Moveable property” is defined in Section 22 IPC which includes a corporeal property of every description. It is beyond doubt that a document is a “moveable property” within the meaning of Section 22 IPC which can be the subject matter of theft. A “document” is a “corporeal property”. A thing is “corporeal” if it has a body, material and a physical presence….
…The first Explanation to Section 29 IPC provides that it is immaterial by what means or upon what substance these are formed. This definition would include within its ambit photocopy of a document. As per Explanation No.2 of Section 29 IPC, letters, figures or marks shall be deemed to be expressed by such letters, figures or marks within the meaning of the Section. Such letters, figures or marks thus have a material and physical presence. Therefore, it can also be inferred that the said information would be deemed to fall within the purview of “Document” – a corporeal property.”
Therefore, the Bench held that the High Court was not right in holding that the replication of the documents or use of information therein is not moveable property and would not amount to theft.
However, the Court held that the replication of information in the facts and circumstances of the present case would not amount to theft. The Court held that there wasn’t sufficient evidence to conclude that there was a dishonest intention on the part of the respondent company to create wrongful gain for themselves.
“…it is to be seen in using the documents in the litigation, whether there is “dishonest intention” on the part of the respondents in causing “wrongful loss” to the appellant Company and getting “wrongful gain” for themselves. Respondents…have produced the photocopies of the documents No.1 to 54 in the CLB proceedings which were filed by them on the ground of oppression and mismanagement.
Merely because the respondents have produced the copies of the documents in the CLB proceedings, it cannot be said that the respondents have removed the documents with “dishonest” intention. Copies of documents are produced in support of the case of respondents No.1 to 5 and to enable the Court to arrive at the truth in a judicial proceeding involving alleged oppression and mismanagement in the affairs of the appellant Company by respondent No.17.”
The Court further held,
“When a bona fide dispute exists between the parties as to whether there is oppression and mismanagement, there is no question of “wrongful gain” to the respondents or “wrongful loss” to the appellant. In using the documents, when there is no dishonest intention to cause “wrongful loss” to the complainant and “wrongful gain” to the respondents, it cannot be said that the ingredients of theft are made out…
…How the respondents had access to the documents may be one thing. It may perhaps have bearing on the evidentiary value to be attached to the documents. But to say that it amounts to theft and seeking to prosecute the respondents is nothing but an attempt to cow down their defence in the litigation or to deprive the respondents of their valuable defence.”
Thus, the judgment of the High Court was set aside and the appeals were allowed.
In the same case, the Court also made an important ruling as regards Section 202 of the Code of Criminal Procedure. It was held that it is obligatory upon the Magistrate that before summoning the accused residing beyond its jurisdiction, he shall enquire into the case himself or direct the investigation to be made by a police officer for finding out whether or not there is sufficient ground to proceed against the accused.

Section 138 NI Act: Delay In Filing The Complaint Can Be Condoned If Sufficient Cause Is Shown In The Complaint

The Supreme Court has observed that cognizance of a complaint filed under Section 138 of the Negotiable Instrument Act can be taken by the court even after the prescribed period, if the complainant satisfies the Court that he had sufficient cause for not making a complaint within such period.
The bench comprising Justice DY Chandrachud and Justice Hemant Gupta was concerned with an appeal against Patna High Court judgment which quashed a summons issued by Chief Judicial Magistrate in a cheque bounce complaint.

In Birendra Prasad Sah vs. State of Bihar, after dishonour of cheques, the complainant issued a legal notice on 31.12.2015. As the accused failed to reply, the reminder notice was issued on 26.02.2016 by the complainant. The accused replied to the second notice denying his liability. The complaint was filed on 11.05.2016. The delay in filing complaint was condoned by the CJM taking into consideration the request made by the complainant that during the intervening period he had fallen ill.

The High Court had quashed the summons mainly on the ground that it was not permissible for a payee to create another cause of action in respect of the same cheque. It also observed that the complainant failed to file the complaint within the statutory period of thirty days as prescribed under the N.I. Act in pursuance to the issuance of first notice.
In appeal, though it was argued before the Apex Court bench, that in MSR Leathers v. S Palaniappan, a three judge Bench of this Court has taken the view that the issuance of successive notices is permissible under the provisions of Section 138, the bench did not consider this issue.
Instead, the bench observed that that sufficient cause was shown by the complainant for condoning the delay in instituting the complaint taking the basis of the complaint as the issuance of the first legal notice dated 31 December 2015. Setting aside the High Court order on this ground, the bench said:
"The complaint was instituted on 11 May 2016. Under Section 142(1), a complaint has to be instituted within one month of the date on which the cause of action has arisen under clause (c) of the proviso to Section 1386 . The proviso however stipulates that cognizance of the complaint may be taken by the court after the prescribed period, if the complainant satisfies the Court that he had sufficient cause for not making a complaint within such period. Both in paragraphs 7 and 8 of the complaint, the appellant indicated adequate and sufficient reasons for not being able to institute the complaint within the stipulated period. These have been adverted to above. The CJM condoned the delay on the cause which was shown by the appellant for the period commencing from 6 April 2018. However, if paragraphs 7 and 8 of the complaint are read together, it is evident that the appellant had indicated sufficient cause for seeking condonation of the delay in the institution of the complaint. The High Court has merely adverted to the presumption that the first notice would be deemed to have been served if it was dispatched in the ordinary course. Even if that presumption applies, we are of the view that sufficient cause was shown by the appellant for condoning the delay in instituting the complaint taking the basis of the complaint as the issuance of the first legal notice dated 31 December 2015."





Tuesday, May 14, 2019

Sharing Meme Of Mamata Banerjee: SC Directs Immediate Release Of BJP Activist

The Supreme Court on Tuesday 14/05/2019 directed BJP Leader Priyanka Sharma arrested by West Bengal police for allegedly sharing a morphed photo of Chief Minister Mamata Banerjee on social media to be released immediately.
The order of release, initially being subject to her furnishing a written apology forthwith on her release, was ultimately modified to revoke the condition of the apology. 
"The post was deleted even before she was arrested. But the meme is still doing rounds. It is not like she was the only one who shared it. To place her in judicial custody for 14 days for this is a grave infringement of fundamental rights!", urged Senior Advocate N. K. Kaul for Sharma.

Friday, May 10, 2019

Tri HC | Purpose of demand notice under S. 138 NI Act – not to demand payment, but to inform the party of broken contract and liability to pay

Tripura High Court: The Bench of Arindam Lodh, J. allowed a revision petition under Section 397 read with Section 401 of Code of Criminal Procedure, 1973 and set aside the lower courts’ order acquitting the accused in a case filed under Section 138 of the Negotiable Instruments Act, 1881.
Petitioner herein (complainant before lower court) gave a loan of Rs 3.6 lakhs to the accused in three installments against which the respondent issued three post-dated cheques. When the petitioner tried to encash these cheques, they were dishonoured with the remark ‘insufficient funds’ in the account of the respondent. The petitioner served a statutory demand notice upon the respondent which went unresponded. Thereafter, he filed a complaint in the Trial Court charging the accused for dishonour of cheque. The Trial Court dismissed the case holding that the demand notice was invalid as it did not bear the signatures of petitioner’s Advocate.  Respondent’s acquittal was affirmed and upheld by the learned Sessions Judge. Aggrieved thereby, the instant revision petition was filed.
The Court opined that the decisions arrived at by the lower courts were perverse and unwarranted on both the points of facts and law, hence not sustainable. It was held that Section 138 proviso (b) does not stipulate that the notice is to be sent through an advocate. Further, each page of the demand notice had been signed by the complainant himself, and thus it was a valid notice in terms of Section 94 of the NI Act. It was observed that the object of notice of dishonor of cheque to endorser is not to demand payment, but to indicate to the party notified that his contract arising on the negotiable instrument has been broken and he is liable for payment.
Reliance was placed on Sampelly Satyanarayana Rao v. Indian Renewable Energy Development Agency Ltd.2016 SCC Online SC 954, where it was held that a post-dated cheque issued as security towards payment of installments of a loan transaction falls within the purview of Section 138 NI Act. In view thereof, it was held that the respondent was liable under Section 138 of NI Act, and he was ordered to pay a fine of Rs 3,60,000 to the petitioner as compensation, failing which, he would be sentenced to simple imprisonment of six months.[Subal Chandra Ghosh v. State of Tripura, 2019 SCC OnLine Tri 134, decided on 25-04-2019]