Friday, July 12, 2024

Interim bail to Delhi Chief Minister Arvind Kejriwal -SC

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While granting interim bail to Delhi Chief Minister Arvind Kejriwal on  July 12,2024 in the case registered by ED under PMLA over the alleged Delhi Liquor Policy scam, the Supreme Court today directed that Kejriwal shall not visit the CM office and Delhi Secretariat during the period of interim release. The judgment, passed by Justices Sanjiv Khanna and Dipankar Datta, imposed the following conditions on Kejriwal:

(a) he shall furnish bail bonds in the sum of Rs.50,000/- with one surety of the like amount to the satisfaction of the Jail Superintendent; 

(b) he shall not visit the Office of the Chief Minister and the Delhi Secretariat; 

(c) he shall be bound by the statement made on his behalf that he shall not sign official files unless it is required and necessary for obtaining clearance/approval of the Lieutenant Governor of Delhi; 

(d) he will not make any comment with regard to his role in the present case; and 

(e) he will not interact with any of the witnesses and/or have access to any official files connected with the case. 
It was further clarified that the interim bail may be extended, or recalled by the larger Bench, to which certain legal questions arising in the case have been referred. 

Notably, the bench remained unsure of whether it could issue a direction to Kejriwal, a duly elected Chief Minister, to step down from the post of Chief Minister, Delhi. As such, it left it upon the AAP chief to take a call.
"We are conscious that Arvind Kejriwal is an elected leader and the Chief Minister of Delhi, a post holding importance and influence. We have also referred to the allegations. While we do not give any direction, since we are doubtful whether the court can direct an elected leader to step down or not function as the Chief Minister or as a Minister, we leave it to Arvind Kejriwal to take a call",

Thursday, July 11, 2024

Muslim Woman Can Seek Maintenance From Husband Under S.125 CrPC : Supreme Court

In a notable MuslimwomenJudgement delivered by the Supreme Court regarding the right of the Muslim woman to claim maintenance from her husband under Section 125 Cr.P.C., the Court has adverted to the vulnerability suffered by married women in India particularly 'Homemakers' who do not have an independent source of income and the problems faced by them in routine life due to not having access to monetary resources in their matrimonial home.

The Court has asked Indian married men to become conscious of this fact and financially empower their wives by making available financial resources, particularly fulfilling her personal needs.

“In the case of a woman who has an independent source of income, she may be financially endowed and may not be totally dependent on her husband and his family. But what is the position of a married woman who is often referred to as a “homemaker” and who does not have an independent source of income, whatsoever, and is totally dependent for her financial resources on her husband and on his family?” Justice BV Nagarathna in her separate Judgment said. 

The Court believed that an Indian married woman is considered to be an epitome of love, care, and affection towards her wards and husband, and doesn't expect anything in return except a sense of comfort and respect from her husband and his family which are towards her emotional security. 

Highlighting the good quality of the Indian homemaker to save money on household expenditures, the Court said that the Indian homemaker tries to save as much money as possible from the monthly household budget to avoid making a request to the husband or his family for her personal expenses 

“Most married men in India do not realise this aspect of the predicament such Indian homemakers face as any request made for expenses may be bluntly turned down by the husband and/or his family. Some husbands are not conscious of the fact that the wife who has no independent source of finance is dependent on them not only emotionally but also financially.”, the court said. 

“An Indian married man must become conscious of the fact that he would have to financially empower and provide for his wife, who does not have an independent source of income, by making available financial resources particularly towards her personal needs; in other words, giving access to his financial resources. Such financial empowerment would place such a vulnerable wife in a more secure position in the family., the court added. 

The Court also acknowledged the steps taken by those Indian married men who make available their financial resources for their spouse towards their personal expenses, apart from household expenditure, possibly by having a joint bank account or via an ATM card.

"Those Indian married men who are conscious of this aspect and who make available their financial resources for their spouse towards their personal expenses, apart from household expenditure, possibly by having a joint bank account or via an ATM card, must be acknowledged."

Financial Security and Security of Residence of Indian women have to be protected

Following observation of the Court is also noticeable: 

“Both 'financial security' as well as 'security of residence' of Indian women have to be protected and enhanced. That would truly empower such Indian women who are referred to as 'homemakers' and who are the strength and backbone of an Indian family which is the fundamental unit of the Indian society which has to be maintained and strengthened. It goes without saying that a stable family which is emotionally connected and secure gives stability to the society for, it is within the family that precious values of life are learnt and built. It is these moral and ethical values which are inherited by a succeeding generation which would go a long way in building a strong Indian society which is the need of the hour. It is needless to observe that a strong Indian family and society would ultimately lead to a stronger nation. But, for that to happen, women in the family have to be respected and empowered!”

Wednesday, June 26, 2024

SC directs TN to allow all-India permit buses to pass through state without obstruction

The petitioners had said they operate a large number of buses to ferry passengers from neighbouring Kerala and other states and the vehicles have to ply through Tamil Nadu due to the topography of the area.

The Supreme Court directed the Tamil Nadu government authorities on 25/6/24 to allow All India Tourist Permit (AITP) vehicles to pass through the state without any hindrance or obstruction.

The petitioners, inter-state bus operators who possess the AITP, have sought quashing and setting aside of the state government's directives dated November 6, 2023 and June 18, calling for compulsory registration of all buses registered in other states with the regional transport authorities in Tamil Nadu to enable plying within the state.

In its interim order, the bench said, "In the meanwhile, the vehicles belonging to the petitioners having the All India Tourist Permit shall be allowed to pass through the state of Tamil Nadu without any hindrance or obstruction." The petitioners have said they operate a large number of buses to ferry passengers from neighbouring Kerala and other states and the vehicles have to ply through Tamil Nadu due to the topography of the area.

Sunday, June 23, 2024

Bombay High Court Directs Bar Council to Act Against Lawyer For Dress Code Violation

In a noteworthy ruling, the Bombay High Court has called on the Bar Council of Maharashtra and Goa to take disciplinary action against an advocate

Justice Prithviraj K Chavan highlighted the advocate’s non-compliance with the formal dress requirements, noting, “He is not in proper attire, in the sense, he is without bands and advocate’s gown as prescribed by the Rules.” The observation was made public through the court order dated June 14.

The lawyer in question, Jagdish M Ahuja, appeared in the 2018 criminal writ petition without the standard bands and gown, prompting the court’s decision. This move underscores the judiciary’s strict stance on maintaining decorum and professionalism in the courtroom.

Saturday, June 15, 2024

Bank of Baroda to refund Rs. 76,90,017 to a company and its director who lost the amount in a cyber fraud incident involving unauthorized electronic banking transactions for which no OTP was sent.

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The Bombay High Court has directed the Bank of Baroda to refund Rs. 76,90,017 to a company and its director who lost the amount in a cyber fraud incident involving unauthorized electronic banking transactions for which no OTP was sent.

A division bench of Justice GS Kulkarni and Justice Firdosh P. Pooniwalla allowed a writ petition seeking refund of the amount observing – 

both as per the RBI Circular and the said Policy of Respondent No.2 (bank), the liability of the Petitioners in respect of the said unauthorized transactions would be zero as the unauthorized transactions have taken place due to a third party breach where the deficiency lies neither with Respondent No.2 nor with the Petitioners...In these circumstances, as per the RBI Circular and as per the Policy of Respondent No.2, the Petitioner is entitled to refund of the said amount from Respondent No.2.

The petitioners, Pharma Search Ayurveda Private Ltd and its director Jaiprakash Kulkarni had maintained a bank account with Bank of Baroda's Worli Branch for the past 15-20 years. On October 1, 2022, beneficiaries were added to their account without any One-Time Password (OTP) being sent to the petitioners' registered mobile number or email. The next day, October 2, 2022, the company's accountant discovered that Rs. 76,90,017 had been debited from their account in multiple transactions.

Upon realizing the fraud, the reported the transactions to the Cyber Cell at Worli Police Station and the bank manager within 30 minutes to an hour. They lodged a formal complaint with the Cyber Crime Police Station under Section 379 of the IPC, 1860, and Sections 43A and 66 of the Information Technology Act, 2000. They also requested the bank to investigate the matter and refund the debited amount as per the RBI Circular dated July 6, 2017, titled "Customer Protection-Limiting Liability of Customers in Unauthorized Electronic Banking Transactions."

The Petitioners did not receive the refund. A complaint filed with the Bank Ombudsman was rejected on January 10, 2023, on the grounds that the transactions were authenticated using valid credentials known to the account holder.

The petitioners approached the high court contending that there was no negligence on their part, and the bank failed to follow the procedures outlined in the RBI Circular, resulting in the unauthorized transactions.

Bank of Baroda argued that there was no deficiency in its service, a stance initially supported by the Banking Ombudsman. It argued that the transactions were completed after proper authentication, including the input of an OTP and credentials known only to the account holder. It contended that the petitioners or their personnel had compromised these credentials, leading to the fraud.

The court ordered an investigation by the Cyber Cell, which revealed that no SMS notifications were received on the registered mobile number when the beneficiaries were added on October 1, 2022. The OTPs necessary for adding beneficiaries were not delivered. Further investigation by the Cyber Cell showed that emails purportedly sent by the bank about these transactions were also not received by the Petitioners. The three reports also confirmed no collusion between the petitioners and the fraudsters.

The Cyber Cell's reports, corroborated by mobile service provider Airtel and email provider Rediffmail, established that no SMS or email notifications were received by the Petitioners regarding the addition of beneficiaries.

The court found that the bank, along with the petitioners, had been victims of fraud by third-party fraudsters. “This Petition deals with a Cyber Fraud and is an example of how increasingly the innocent persons are becoming victims of Cyber Fraud”, the court remarked.

The court referred to the Reserve Bank of India's (RBI) Circular dated July 6, 2017, which outlines the conditions for zero liability of customers in unauthorized electronic banking transactions. The circular stipulates that customers are entitled to zero liability if the unauthorized transaction occurs due to contributory fraud, negligence, or a third-party breach where neither the bank nor the customer is at fault, provided the customer reports the transaction within three working days. 

The court noted that the bank has its Consumer Protection Policy, which aligns with the RBI Circular. This policy stipulates that customers have zero liability if unauthorized transactions from third-party breaches are reported within seven working days.

The court noted that the petitioners reported the unauthorized transactions within the stipulated time. The court found that Banking Ombudsman had not adequately investigated whether the transactions were authorized by the petitioners.

Thus, the court quashed the decision of the Banking Ombudsman dated January 10, 2023, and directed the bank to refund the amount of Rs. 76,90,017/- to the Petitioners' bank account, along with interest and compensation as per the RBI Circular.

Monday, January 29, 2024

Bail Cannot Be Cancelled Merely Due To Non-Appearance Of Accused Before Court: Supreme Court

The Supreme Court recently observed that the non-appearance of the accused party is no grounds for cancellation of bail.

The three-judge Bench of Justices B.R. Gavai, Sanjay Karol, and Sandeep Mehta was hearing a criminal appeal arising out of the impugned order of the Calcutta High Court cancelling bail.

The High Court had noted that, on several occasions, it directed the accused person to appear personally before the Court. However, the Court, while cancelling the bail, had observed that neither the accused nor his lawyer was present. It recorded that this non-appearance 'exposes an insolent stance of opposite party No.2 to evade the process of law.' Against this backdrop, the matter came up before the Top Court.

Therein, the appellant's counsel apprised the bench of the reason for such non-appearance. He submitted that there was a traffic jam due to VIP movements and therefore, the appellant could not attend the Court. Besides, the Counsel also averred that the appellant's lawyer was not present on the concerned date, as his Vakalatnama was withdrawn.

After recording the submissions, the Court observed that if bail has been granted, the same can be cancelled if any conditions are violated or liberty is misused.

“..we find that merely because the appellant did not appear personally could not have been a ground for cancellation of bail. The parameters for the grant of bail and cancellation of bail are totally different. The bail already granted may be cancelled, if it is found that the person who has been granted the benefit of bail has violated any of the conditions or misused the liberty by influencing the witnesses or tampering with the evidence.”

The Court observed that the impugned judgment does not contain any of the above-mentioned reasons. Thus, the Court set aside the same.

Monday, January 15, 2024

When Maintainability Of Suit Is Questioned, Court Should Prima Facie Decide Jurisdiction Before Granting Interim Relief : Supreme Court

The Supreme Court has observed that if the maintainability of a civil suit is questioned and the grant of interim relief is opposed on that ground, then the trial court, before deciding to grant the interim releif, must at least make a prima facie satisfaction regarding the maintainability of the suit.

"Where interim relief is claimed in a suit before a civil court and the party to be affected by grant of such relief, or any other party to the suit, raises a point of maintainability thereof or that it is barred by law and also contends on that basis that interim relief should not to be granted, grant of relief in whatever form, if at all, ought to be preceded by formation and recording of at least a prima facie satisfaction that the suit is maintainable or that it is not barred by law", observed a bench comprising Justices BR Gavai, Dipankar Datta and Aravind Kumar.

"It would be inappropriate for a court to abstain from recording its prima facie satisfaction on the question of maintainability, yet, proceed to grant protection pro tem on the assumption that the question of maintainability has to be decided as a preliminary issue under Rule 2 of Order XIV, CPC. That could amount to an improper exercise of power," the judgment added.

If the court thinks at the stage of hearing the application for interim relief that the suit is barred by law or is otherwise not maintainable, it cannot dismiss it without framing a preliminary issue after the written statement is filed but can most certainly assign such opinion for refusing interim relief.

At the same time, if there is an extraordinary situation where a decision on the maintainability will delay the grant of interim relief which can cause irreparable harm, the Court may pass an appropriate order after assigning proper reasons.

"However, if an extraordinary situation arises where it could take time to decide the point of maintainability of the suit and non-grant of protection pro tem pending such decision could lead to irreversible consequences, the court may proceed to make an appropriate order in the manner indicated above justifying the course of action it adopts. In other words, such an order may be passed, if at all required, to avoid irreparable harm or injury or undue hardship to the party claiming the relief and/or to ensure that the proceedings are not rendered infructuous by reason of non-interference by the court,” the Court explained.

Also from the judgment - Order 8 Rule 10 CPC | Suit Can't Be Decreed Merely On Defendant's Failure To File Written Statement If Plaintiff's Case Isn't Proved : Supreme Court


Saturday, January 6, 2024

Notice Under S.138 NI Act Invalid If Omnibus Demand Is Made Without Specifying Cheque Amount : Supreme Court

Finding the demand raised in a notice issued under Section 138 of the Negotiable Instruments Act, 1881, to be omnibus in nature, the Supreme Court quashed a criminal case for the dishonour of a cheque. The appellant-notice holder filed a petition before the Delhi High Court for quashing of summoning order passed by the Magistrate taking a plea that the notice had made out an omnibus demand without specifying what was due under the dishonoured cheque. Hence, it was argued, that the notice has failed to meet the legal requirement as per the dictum of the Supreme Court passed in Suman Sethi vs. Ajay K.Churiwal and Anr.

The Delhi High Court, which found no merit in the petition, in para 4 of the order observed that: “The respondent in his notice did not ask for the total amount due but simply asked for the amount of cheque and compensation of same amount plus Rs.50,000/- for mental harassment. The amount of compensation and harassment are severable and to my mind would not invalidate the legal notice dated 02.12.2013.”
The Supreme Court bench comprising Justices CT Ravikumar and PV Sanjay Kumar while referring to the case Suman Sethi, in para 6 noted that: “A bare perusal of the decision referred (supra) would reveal that a demand in addition to the cheque amount in a demand notice by itself would not make it invalid. In other words, as held therein, in the demand notice, demand has to be made for the 'cheque amount' and therefore, notice sans such demand would fall short of legal requirement. At the same time, we will reiterate the position that if in a notice while giving the break up of the claim the cheque amount interest, damages, etc. are separately specified and these additional claims would be severable, such demand would not invalidate the notice. In short, in a notice of demand made under the N.I. Act demand shall not be omnibus, there must be a clear demand for the cheque amount lest notice will be invalid. This law laid down as above has to be applied to decide the validity or otherwise of Annexure P-2-demand notice.”