SC on Territorial Jurisdiction : NI Act

SC on Territorial Jurisdiction:NI Act (Cheque Bouncing)

A 3-Judge Bench of Hon'ble Supreme Court, in its landmark judgement has settled issues related to Court’s territorial jurisdiction concerning criminal complaints filed under Chapter XVII of the Negotiable Instruments Act, 1881 (for short, ‘the NI Act’).

Points to Note:

(1) The return of the cheque by the drawee bank alone constitutes the commission of the offence and indicates the place where the offence is committed.

(2) The place, situs or venue of judicial inquiry and trial of the offence must logically be restricted to where the drawee bank, is located.

(3) The territorial jurisdiction is restricted to the Court within whose local jurisdiction the offence was committed, which in the present context is where the cheque is dishonoured by the bank on which it is drawn.

(4) Only those cases where, post the summoning and appearance of the alleged Accused, the recording of evidence has commenced as envisaged in Section 145(2) of the Negotiable Instruments Act, 1881, will proceeding continue at that place. 

(5) Regardless of whether evidence has been led before the Magistrate at the pre-summoning stage, either by affidavit or by oral statement, the Complaint will be maintainable only at the place where the cheque stands dishonoured. 

(6) The category of Complaint cases where proceedings have gone to the stage of Section 145(2) or beyond shall be deemed to have been transferred from the Court ordinarily possessing territorial jurisdiction, as now clarified, to the Court where it is presently pending. All other Complaints (including those where the accused/respondent has not been properly served) shall be returned to the Complainant for filing in the proper Court.

(7) If such Complaints are filed/refiled within thirty days of their return, they shall be deemed to have been filed within the time prescribed by law, unless the initial or prior filing was itself time barred.

(8) The relief introduced by Section 138 of the NI Act is in addition to the contemplations in the IPC. It is still open to such a payee recipient of a dishonoured cheque to lodge a First Information Report with the Police or file a Complaint directly before the concerned Magistrate.

PS: We do not accept any liability arising out of use of above information. Users are advised to apply their own thoughts and experience in above case.

Case Number: 

CRIMINAL APPEAL NO. 2287 OF 2009

Case Title:
Dashrath Rupsingh Rathod Versus State of Maharashtra & Anr.

Bench:

Hon'ble Justice T.S. THAKUR

Hon'ble Justice VIKRAMAJIT SEN
Hon'ble Justice C. NAGAPPAN

Date of Judgement: 
1st August 2014

Blog Link:
http://jeetendergupta.blogspot.in/2014/08/sc-on-territorial-jurisdiction-ni-act.html

Full judgement / Order Link:
http://judis.nic.in/supremecourt/imgs1.aspx?filename=41801

Supreme Court on Misuse of IPC 498A

Supreme Court on Misuse of IPC 498A (Dowry Cases) 

"There is phenomenal increase in matrimonial disputes in recent years. The institution of marriage is greatly revered in this country. Section 498-A of the IPC was introduced with avowed object to combat the menace of harassment to a woman at the hands of her husband and his relatives. The fact that Section 498-A is a cognizable and non bailable offence has lent it a dubious place of pride amongst the provisions that are used as weapons rather than shield by disgruntled wives. The simplest way to harass is to get the husband and his relatives arrested under this provision. In a quite number of cases, bed-ridden grand-fathers and grand-mothers of the husbands, their sisters living abroad for decades are arrested. “Crime in India 2012 Statistics” published by National Crime Records Bureau, Ministry of Home Affairs shows arrest of 1,97,762 persons all over India during the year 2012 for offence under Section 498-A of the IPC, 9.4% more than the year 2011. Nearly a quarter of those arrested under this provision in 2012 were women i.e. 47,951 which depicts that mothers and sisters of the husbands were liberally included in their arrest net. Its share is 6% out of the total persons arrested under the crimes committed under Indian Penal Code. It accounts for 4.5% of total crimes committed under different sections of penal code, more than any other crimes excepting theft and hurt. The rate of charge-sheeting in cases under Section 498A, IPC is as high as 93.6%, while the conviction rate is only 15%, which is lowest across all heads. As many as 3,72,706 cases are pending trial of which on current estimate, nearly 3,17,000 are likely to result in acquittal."

Supreme Court on Power to Arrest 

"Arrest brings humiliation, curtails freedom and cast scars forever. Law makers know it so also the police. There is a battle between the law makers and the police and it seems that police has not learnt its lesson; the lesson implicit and embodied in the Cr.PC. It has not come out of its colonial image despite six decades of independence, it is largely considered as a tool of harassment, oppression and surely not considered a friend of public. The need for caution in exercising the drastic power of arrest has been emphasized time and again by Courts but has not yielded desired result. Power to arrest greatly contributes to its arrogance so also the failure of the Magistracy to check it. Not only this, the power of arrest is one of the lucrative sources of police corruption. The attitude to arrest first and then proceed with the rest is despicable. It has become a handy tool to the police officers who lack sensitivity or act with oblique motive."

Supreme Court Directions on Arrest

Hon'ble Supreme Court has issued following directions to ensure that police officers do not arrest accused and unnecessarily and Magistrate do not authorise detention casually and mechanically :

(1) All the State Governments to instruct its police officers not to automatically arrest when a case under Section 498-A of the IPC is registered but to satisfy themselves about the necessity for arrest under the parameters laid down above flowing from Section 41, Cr.PC;

(2) All police officers be provided with a check list containing specified sub-clauses under Section 41(1)(b)(ii);

(3) The police officer shall forward the check list duly filed and furnish the reasons and materials which necessitated the arrest, while forwarding/producing the accused before the Magistrate for further detention;

(4) The Magistrate while authorising detention of the accused shall peruse the report furnished by the police officer in terms aforesaid and only after recording its satisfaction, the Magistrate will authorise detention;

(5) The decision not to arrest an accused, be forwarded to the Magistrate within two weeks from the date of the institution of the case with a copy to the Magistrate which may be extended by the Superintendent of police of the district for the reasons to be recorded in writing;

(6) Notice of appearance in terms of Section 41A of Cr.PC be served on the accused within two weeks from the date of institution of the case, which may be extended by the Superintendent of Police of the District for the reasons to be recorded in writing;

(7) Failure to comply with the directions aforesaid shall apart from rendering the police officers concerned liable for departmental action, they shall also be liable to be punished for contempt of court to be instituted before High Court having territorial jurisdiction.

(8) Authorising detention without recording reasons as aforesaid by the judicial Magistrate concerned shall be liable for departmental action by the appropriate High Court.

Shall Apply beyond Section 498A also 

The directions aforesaid shall not only apply to the cases under Section 498-A of the I.P.C. or Section 4 of the Dowry Prohibition Act, the particular case, but also such cases where offence is punishable with imprisonment for a term which may be less than seven years or which may extend to seven years; whether with or without fine.

Case Number: 

Criminal Appeal No. 1277 of 2014

Case Title:
Arnesh Kumar Vs State of Bihar & Anr.

Bench:

Hon'ble Justice Chandrmauli Kr. Prasad

Hon'ble Justice Pinaki Chandra Ghose

Date of Judgement: 
2nd July 2014

Blog Link:
http://www.jeetendergupta.blogspot.in/2014/07/supreme-court-arrest-directions-dowry.html

Full judgement / Order Link:
http://judis.nic.in/supremecourt/imgs1.aspx?filename=41736

Disclaimer: We do not accept any liability arising out of use of above information. Users are advised to apply their own thoughts and experience in above case.

NCRDC orders Builder to pay 18% Interest for Delayed Possession

NCRDC orders Builder to pay 18% Interest for Delayed Possession

National Consumer Disputes Resolution Commission (NCRDC) has ordered Parasvnath Developers Ltd (OP) to refund the amounts paid by the customer / investor along with 18% interest from the date of deposit till its realisation. Further compensation @ Rs. 1,00,000/- per year, from 2007 onwards for harassment, mental agony, anguish, frustration, anger and sadness has been directed along with a sum of Rs.2,00,000/- towards costs of this case.

Points to Note:

1. As per a Clause of the Flat Buyer Agreement, it was agreed by the OP that in case of any delay, the OP shall pay to the complainants a compensation @ Rs.5/- per sq.ft., per month, for the period of delay. 

2. Reference to The Apex Court judgement in the case of K.A. Nagamani Vs. Karnataka Housing Board, Civil Appeal Nos. 6730-31 of 2012, decided on 19.09.2012 where in 18% interest was granted.

3. National Consumer Disputes Resolution Commission (NCRDC) has ordered OP to refund the amounts paid by the customer / investor along with 18% interest from the date of deposit till its realisation. Further compensation @ Rs. 1,00,000/- per year, from 2007 onwards for harassment, mental agony, anguish, frustration, anger and sadness has been directed along with a sum of Rs.2,00,000/- towards costs of this case.

4. Strong Remarks by NCRDC : "It must be borne in mind that there is a huge delay in handing over the possession of the premises in dispute, i.e., about four years. The OP has made attempt to feather its own nest i.e., to make profits for itself at the expense of others. The grant of Rs.2.00 lakhs or Rs.3.00 lakhs for such a huge delay will be unjust and unfair. The complainants .... and his wife are compelled to live in the house of their daughter. They do not have any independent house to live in. Their harassment and mental agony cannot be equated by payment of a few pea nuts. The OP has played fast and loose with the consumers"

Disclaimer: Above are personal interpretations. We do not accept any liability arising out of use of above information. Users are advised to apply their own thoughts and experience in above case.

Case Number: 

Consumer Complaint No. 144 of 2011

Case Title:

Subhash Chander Mahajan Vs Parasvnath Developers Ltd

Bench:

HON’BLE MR. JUSTICE J. M. MALIK, PRESIDING MEMBER

HON’BLE DR. S. M. KANTIKAR, MEMBER

Date of Judgement: 

05th May 2014

Full judgement / Order Link:

http://164.100.72.12/ncdrcrep/judgement/0014051310552304CC14411.htm

Blog Link:
http://jeetendergupta.blogspot.in/2014/05/ncrdc-orders-builder-to-pay-18-interest.html

2014: Supreme Court on Right To Education (RTE)

2014 : Supreme Court on Right To Education 

Hon'ble Supreme Court has upheld the Right to Education in case of all Private Schools except the minority schools (aided or unaided).

Personal Interpretation to the best of understanding:

1. Article 21A of the Constitution, provides that the State shall provide free and compulsory education to all children of the age of six to fourteen years in such manner as the State may, by law, determine. 

2. Parliament has made the law contemplated by Article 21A by enacting the Right of Children to Free and Compulsory Education Act, 2009 (for short ‘the 2009 Act’). 

3. The constitutional validity of the 2009 Act was considered by a three-Judge Bench of the Apex Court in Society for Unaided Private Schools of Rajasthan v. Union of India & Anr. [(2012) 6 SCC 1]. Two of the three Judges had held the 2009 Act to be constitutionally valid, but they have also held that the 2009 Act is not applicable to unaided minority schools protected under Article 30(1)

of the Constitution. In the aforesaid case, however, the three-Judge Bench did not go into the question whether clause (5) of Article 15 or Article 21A of the Constitution is valid and does not violate the basic structure of the Constitution.

4. The Hon'ble Supreme Court has now held that 2009 Act is not ultra vires Article 19(1)(g) of the Constitution for Private (non-minority schools)as it did not find any merit in the submissions made on behalf of the non-minority private schools that Article 21A of the Constitution and the 2009 Act violate their right under Article 19(1)(g) of the Constitution.

5. However, for minority schools aided or unaided, the Hon'ble Supreme Court has held that "2009 Act in so far as it applies to minority schools, aided or unaided, covered under clause (1) of Article 30 of the Constitution is ultra vires the Constitution".  If the 2009 Act is made applicable to minority schools, aided or unaided, the right of the minorities under Article 30(1) of the Constitution will be abrogated. Therefore, the 2009 Act in so far it is made applicable to minority schools referred in clause (1) of Article 30 of the Constitution is ultra vires the Constitution

PS: Above are personal interpretations. We do not accept any liability arising out of use of above information. Users are advised to apply their own thoughts and experience in above case.

Case Number: 

Writ Petition (Civil) No.416 of 2012

Case Title:

Pramati Educational & Cultural Trust & Ors. Versus Union of India & Ors.

Bench:

Hon'ble CJI. R.M. Lodha

Hon'ble Justice A. K. Patnaik

Hon'ble Sudhansu Jyoti Mukhopadhaya

Hon'ble Justice Dipak Misra

Hon'ble Justice Fakkir Mohamed Ibrahim Kalifulla

Date of Judgement: 
06th May 2014

Blog Link:

http://jeetendergupta.blogspot.in/2014/05/2014-supreme-court-on-right-to.html

Full judgement / Order Link:

http://judis.nic.in/supremecourt/imgs1.aspx?filename=41505

Supreme Court Directions - Cheque Bouncing Cases

Supreme Court Directions - Cheque Bouncing Cases 

Hon'ble Supreme Court has issued direction to all the Criminal Courts in the country dealing with Section 138 cases to follow the below-mentioned procedures for speedy and expeditious disposal of cases falling under Section 138 of the Negotiable Instruments Act.

Directions to Criminal Courts dealing Section 138 cases 

(1) Metropolitan Magistrate/Judicial Magistrate (MM/JM), on the day when the complaint under Section 138 of the Act is presented, shall scrutinize the complaint and, if the complaint is accompanied by the affidavit, and the affidavit and the documents, if any, are found to be in order, take cognizance and direct issuance of summons.

(2) MM/JM should adopt a pragmatic and realistic approach while issuing summons. Summons must be properly addressed and sent by post as well as by e-mail address got from the complainant. Court, in appropriate cases, may take the assistance of the police or the nearby Court to serve notice to the accused. For notice of appearance, a short date be fixed. If the summons is received back un-served, immediate follow up action be taken.

(3) Court may indicate in the summon that if the accused makes an application for compounding of offences at the first hearing of the case and, if such an application is made, Court may pass appropriate orders at the earliest.

(4) Court should direct the accused, when he appears to furnish a bail bond, to ensure his appearance during trial and ask him to take notice under Section 251Cr.P.C. to enable him to enter his plea of defence and fix the case for defence evidence, unless an application is made by the accused under Section 145(2) for re-calling a witness for cross-examination.

(5) The Court concerned must ensure that examination-in-chief, cross-examination and re-examination of the complainant must be conducted within three months of assigning the case. The Court has option of accepting affidavits of the witnesses, instead of examining them in Court. Witnesses to the complaint and accused must be available for cross-examination as and when there is direction to this effect by the Court.

PS: We do not accept any liability arising out of use of above information. Users are advised to apply their own thoughts and experience in above case.

Case Number: 

Writ Petition (Civil) No.18 of 2013

Case Title:
Indian Bank Association and others Versus Union of India and others 

Bench:

Hon'ble Justice K.S. Radhakrishnan

Hon'ble Justice Vikramajit Sen

Date of Judgement: 
21st April 2014

Blog Link:
http://www.jeetendergupta.blogspot.in/2014/05/supreme-court-directions-2014-cheque.html

Full judgement / Order Link:
http://judis.nic.in/supremecourt/imgs1.aspx?filename=41436

Supreme Court Judgement on Police FIR registration

Date of Judgement: 12 Nov 2013

Supreme Court Judgement on Registration of FIR by Police

Supreme Court of India has given a landmark judgement which should put an end to the obstacles being faced by citizens across India to get an FIR registered with Police atleast in case of serious offences like rape, kidnap, dowry death, murder, etc. In such cases the Hon'ble Supreme Court has not only made registration of FIR mandatory but also done away with the need for Preliminary Police Enquiry if the information discloses commission of such a crime.

Personal Interpretation to the best of understanding:

1.Registration of FIR mandatory if information discloses commission of a cognizable offence. (Cognizable offence stand for those offences where a police officer may arrest without warrant.)

2.If the information received does not disclose a cognizable offence but indicates necessity for an enquiry, a preliminary enquiry may be conducted to ascertain whether cognizable offence is disclosed is not. 

3.Action against police officers who do not register FIR

4.Preliminary enquiry may be made in some category of cases like family disputes, commercial cases, medical negligence, corruption etc. 

5.Preliminary enquiry should be made time bound & must not exceed 7 days. 

6.Registration of FIR should not be confused with arrests. The two should be treated separate. Just because FIR is registered it does not mean that the accused person can be arrested immediately. 

PS: Above are personal interpretations. Extracts from Original text of judgement, reproduced below for reference & independent interpretations. Link to full judgement also provided.

Case Number: 

Writ Petition (Criminal) No. 68 of 2008

Case Title: 
Lalita Kumari Versus Govt of UP & Ors

Bench: 
CJI P Sathasivam, 
J Dr. B S Chauhan, 
J. Ranjana Prakash Desai, 
J. Ranjan Gogoi, 
J. S.A. Bobde

Registration of FIR - Important Extracts from the Judgement :

(i) Registration of FIR is mandatory under Section 154 of the Code, if the information discloses commission of a cognizable offence and no preliminary inquiry is permissible in such a situation.

(ii) If the information received does not disclose a cognizable offence but indicates the necessity for an inquiry, a preliminary inquiry may be conducted

only to ascertain whether cognizable offence is disclosed or not.

(iii) If the inquiry discloses the commission of a cognizable offence, the FIR must be registered. In cases where preliminary inquiry ends in closing the complaint, a copy of the entry of such closure must be supplied to the first informant forthwith and not later than one week. It must disclose reasons in brief for closing the complaint and not proceeding further.

(iv) The police officer cannot avoid his duty of registering offence if cognizable offence is disclosed. Action must be taken against erring officers who do

89 not register the FIR if information received by him discloses a cognizable offence.

(v) The scope of preliminary inquiry is not to verify the veracity or otherwise of the information received but only to ascertain whether the information reveals any cognizable offence.

(vi) As to what type and in which cases preliminary inquiry is to be conducted will depend on the facts and circumstances of each case. The category of cases in which preliminary inquiry may be made are as under:

(a) Matrimonial disputes/ family disputes

(b) Commercial offences

(c) Medical negligence cases

(d) Corruption cases

(e) Cases where there is abnormal delay/laches in initiating criminal prosecution, for example, over 3 months delay in reporting the matter without satisfactorily explaining the reasons for delay.The aforesaid are only illustrations and not exhaustive of all conditions which may warrant preliminary inquiry.

(vii) While ensuring and protecting the rights of the accused and the complainant, a preliminary inquiry should be made time bound and in any case it should not exceed 7 days. The fact of such delay and the causes of it must be reflected in the General Diary entry.

(viii) Since the General Diary/Station Diary/Daily Diary is the record of all information received in a police station, we direct that all information relating to cognizable offences, whether resulting in registration of FIR or leading to an inquiry, must be mandatorily and meticulously reflected in the said Diary and the decision to conduct a preliminary inquiry must also be reflected, as mentioned above.

FIR vs Arrest - Important Extracts from the Judgement :

The registration of FIR under Section 154 of the Code 

and arrest of an accused person under Section 41 are two 

entirely different things. It is not correct to say that just 

because FIR is registered, the accused person can be 

arrested immediately. It is the imaginary fear that “merely 

because FIR has been registered, it would require arrest of

the accused and thereby leading to loss of his reputation”

and it should not be allowed by this Court to hold that 

registration of FIR is not mandatory to avoid such 

inconvenience to some persons. The remedy lies in strictly 

enforcing the safeguards available against arbitrary arrests 

made by the police and not in allowing the police to avoid 

mandatory registration of FIR when the information 

discloses commission of a cognizable offence.

Besides, the Code gives power to the police to close a matter both before and after investigation. A police officer can foreclose an FIR before an investigation under Section 157 of the Code, if it appears to him that there is no sufficient ground to investigate the same. The Section itself states that a police officer can start investigation when he has a ‘reason to suspect the commission of an offence’. Therefore, the requirements of launching an investigation under Section 157 of the Code are higher than the requirement under Section 154 of the Code. The police officer can also, in a given case, investigate the matter and then file a final report under Section 173 of the Code seeking closure of the matter. Therefore, the police is not liable to launch an investigation in every FIR which is mandatorily registered on receiving information relating to commission of a cognizable offence.

Important Links:

Full Judgement Link

http://supremecourtofindia.nic.in/outtoday/wr68.pdf

Criminal Law (Amendment) Act 2013 

Various offences defined / redefined as cognizable include: Acid attacks (IPC 326A, 326B), Sexual Harassment of Women including Voyeurism & Stalking (IPC 354, 354A, 354B, 354C, 354D),  Trafficking (IPC 370, 370A), Rape (IPC 376, 376A, 376B, 376C, 376D, 376E)

http://indiacode.nic.in/acts-in-pdf/132013.pdf

National Consumer Commission 2013 Judgment on Apartment Possession

FORUM: NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION

CASE NUMBER: CONSUMER COMPLAINT No. 242 OF 2011

TITLE: KARTAR SINGH KOCHHAR Vs VATIKA LIMITED

JUDGMENT DATE: 11.01.2013


PERSONAL INTERPRETATIONS TO THE BEST OF UNDERSTANDING:

1. The consumer must first pay all due installments and registration charges to seek possession & must seek remedy (relief) only if he/she refused possession even after full payment. (Approach with clean hands)

2. No delay interest / compensation was granted as the price of flats have gone up leaps & bounds.

3. If the consumer does not pay the balance installments to get possession, the developer (builder) is at liberty to return the purchase price with 9% interest.

4. Even after receipt of the entire consideration and registration charges, the developer (builder) would put the consumer in possession of the apartment, within a week failing which, he would pay compensation of Rs.10,000/- per day.

5. The limitation will continue till the consumer gets possession

6. Even though the compensation demanded was Rs.20 lakhs, however, after considering the total amount already invested over and above the compensation demanded, the court ruled no issue with jurisdiction. (PS: For National Commission jurisdiction is 1 crore). As a matter of fact, if option of refund by developer (builder) is to be exercised / ordered, the total sum would exceed 1 crore, thereby justifying the jurisdiction.

PS: Above are personal interpretations. Extracts from Original text of judgment, reproduced below for reference & independent interpretations. Link to full judgment also provided.

RELEVANT EXTRACTS:

FAILURE TO PAY INSTALLMENTS

"The complainant himself waddled out of his commitments. He wants to have the benefit of both the worlds. He wants the delivery of possession without paying the entire amount. He has made a vain attempt to make bricks without straw. He has failed to pay the installment despite service of notice. His intention is to delay the recovery of possession on one pretext or the other. It is well said, “Time was when philosophers said that the rights and duties of the citizens were actually two-sides of same coin and you cannot demand your rights without performing your duty”. The complainant should have paid the last installment and registration charges instead of coming to this Commission. The necessity of this case being filed would have arisen when after full payment the opposite party had refused to hand over the possession."

NO INTEREST OR COMPENSATION

"Under the circumstances, no interest or compensation can be granted to the complainant because the prices of flats have gone up by leaps and bounds. He has not been asked to pay the escalation charges." 

LIBERTY TO RETURN PURCHASE PRICE WITH INTEREST 

"It is therefore ordered that the petitioner will deposit the last installment and registration charges within 90 days from today failing which the respondent will be at liberty to return the purchase price alongwith interest @9% p.a. from the date of that deposit till their realization and as has been agreed by the counsel for the Opposite party. After receipt of the entire consideration and registration charges, the opposite party would put the complainant in possession of the apartment, within a week failing which, he would pay compensation of Rs.10,000/- per day."

LIMITATION

"The complaint is not barred by time because the period of limitation will continue till the petitioner gets the possession."

JURISIDICTION

"Moreover, it cannot be said that this court has got no jurisdiction. The complainant has already incurred a sum of Rs.1,24,71,624/-. and has further demanded compensation in the sum of Rs.20 lakhs. The total amount comes to more than Rs.1.50 crore approximately. By no stretch of imagination, it can be said that this Commission has no jurisdiction to try this case."

FULL JUDGEMENT LINK

http://164.100.72.12/ncdrcrep/judgement/00130220123419276CC24211.htm