Code of Civil Procedure, 1908 - Order VI Rule 17 & Order XXIII Rule 1 - Amendment of Pleadings - Withdrawal of suit or abandonment of part of claim - an amendment application should normally be granted unless by virtue of the amendment, nature of the suit is changed or some prejudice is caused to the defendant. Trans Freight Shipping Services v. N.K. Shashikumar, 12-09-2018
Code of Criminal Procedure, 1973 - Section 125 - Once the marriage is not proved by the wife, she has no legal obligation to receive the maintenance from the revision petitioner under Section 125 of Cr.P.C. But the right of the child legitimate or illegitimate under the Court is an individual right of the child in his or on her own right, independent of mother. When a women claims maintenance, on behalf of minor child out of wedlock against the alleged father, the onus is on her to show that the child could only have been born through the alleged father. The 1st respondent may utilize her legal right to establish the status of her child by initiating appropriate proceeding before the proper forum. K. Mohan v. Bakialakshmi, 11-09-2018
Code of Criminal Procedure, 1973 - Section 125 - The proceedings under Section 125 of Cr.P.C. is a summary one and to give immediate relief to the persons neglected for maintenance. The objective of Section 125 of Cr.P.C. is not to decide right or relationship of the person or give any finding about the solemnization of marriage. Even though no strict proof or evidence are necessary to prove the marriage between the parties under Section 125 of Cr.P.C. But the person who pleaded the solemnization of marriage with other person has to place any material or evidence to satisfy the Court that there was a marriage between them. K. Mohan v. Bakialakshmi, 11-09-2018
Code of Criminal Procedure, 1973 - Section 125 - The scope of Section 125 of Cr.P.C. is to provide summary remedy to save dependants from blestitation and vagrancy and this is to serve a social purpose, apart from and independent of the obligation of the parties under their personal law. K. Mohan v. Bakialakshmi, 11-09-2018
Code of Criminal Procedure, 1973 - Section 482 - FIR was registered with inordinate delay and there has been no plausible explanation for the delay. Thus, it is evident that the FIR has been lodged with the sole intention to harass the petitioners and enmesh them in long and arduous criminal proceedings. Therefore, such an action on the part of the complainant would not be bonafide and the criminal proceedings initiated by him against the petitioners amounts to an abuse of process of law and hence, the FIR is liable to be quashed. Venkadachalapathy v. State, Rep. by The Inspector of Police, Railway Police Station, 07-09-2018
Constitution of India - Article 226 - Suspension of Sentence Rules, 1982 (Tamil Nadu) - Rule 6 - Writ of Mandamus - Parole - Daughter's Marriage - Situation under which emergency leave can be granted to a convict - One of the occasion, where an emergency leave can be granted to a convict, is during the wedding of the son or daughter of the convict. Therefore, the petitioner will be entitled to seek for emergency leave. Gomathi v. Additional Director General of Police (Prisons), 05-09-2018
Contract Act, 1872 - Section 64 - Consequences of Rescission of Voidable Contract - the prayer for refund of money and damages pursuant to rescission and enforcement of share purchase agreement are not in the same form, but are in different forms and in different fora too owing to obtaining statutory position. Therefore, changing the nature of suit has to necessarily be understood as change in the nature of lis or in other words, change in the character of the prayer that is being sought against defendant. Trans Freight Shipping Services v. N.K. Shashikumar, 12-09-2018
Land Law - Petition filed under Article 226 of the Constitution of India to issue a Writ of Declaration, to declare that Section 105 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 and the Fourth Schedule to the said Act as well as the entire land acquisition proceedings initiated under the National Highways Act, 1956 in respect of the proposed Green Field Chennai Salem Highway (From Chennai Outer Ring Road to end of Salem Bypass) in Tamil Nadu are unconstitutional, null and void. G. Sundarrajan v. Union of India, 04-09-2018
Legal Maxim - Whether a delegate can further delegate. The axiomatic maxim is "Delecata Protestas non protest delegari". The maxim lays down the general rule that an agent cannot delegate his powers or duties to another, in whole or in part, without the express authority of the principal or authority derived from the statute. K.V. Sridhar v. N. Krishnasamy, 07-09-2018
Motor Vehicles Act, 1988 - In cases of motor accidents the endeavour is to put the dependant/claimant in the pre-accidental position. Compensation in cases of motor accidents, as in other matters, is paid for reparation of damages. The damages so awarded should be adequate sum of money that would put the party, who has suffered, in the same position if he had not suffered on account of the wrong. Compensation is therefore required to be paid for prospective pecuniary loss i.e. future loss of income/dependency suffered on account of the wrongful act. Managing Director, Tamil Nadu State Transport Corporation Ltd. v. Subedha, 04-09-2018
Multi-State Cooperative Societies Act, 2002 - Deduction from salary to meet multi-State co-operative society's claim in certain cases. Govt. Telecommunication Employees Cooperative Society Ltd. v. Chairman and Managing Director, Bharat Sanchar Nigam Ltd., 04-09-2018
Negotiable Instrument Act, 1881 - Section 138 - An agent cannot delegate his powers or duties to another, in whole or in part, without the express authority of the principal or authority derived from the Statute. It is clear that in the case on hand, the Managing Director has given powers to the Accounts Manager to file the present complaint. The Managing Director is the delegate of the Board of Directors and he is nothing but a delegate and as per the Board resolution, he cannot delegate his power or duty in favour of the Accounts Manager. Therefore, the present complaint is not legally maintainable. K.V. Sridhar v. N. Krishnasamy, 07-09-2018
Negotiable Instruments Act, 1881 - Mere denial of liability or passing of consideration will not be sufficient to rebut the presumption under section 139 of the N.I. Act. Such a rebuttal should be backed by some material evidence which could probabilise the facts content in it. R. Dennis Raja v. T. Subbiah, 12-09-2018
Negotiable Instruments Act, 1881 - Post dated cheques described as 'security' towards repayment of instalment of already disbursed loan amount, proceeding under Section 138 of N.I. Act is maintainable, in case of dishonour of such cheques. Karthik V.R. Thondaiman v. R.M. Karthikeyan, 04-09-2018
Negotiable Instruments Act, 1881 - Section 141 of N.I. Act contemplates procedure in case of offence committed by company. Proprietor concern cannot be equated to a company. Proprietorship concern is not a juristic body. It cannot sue or be sued. It is the individual who runs the concern in some name. Though he issues cheque as proprietor of the concern, it is he and he alone is liable for prosecution, since there is no Principal- Agent characters in proprietorship unlike in a company or partnership firm. R. Dennis Raja v. T. Subbiah, 12-09-2018
Penal Code, 1860 - In order to attract the provisions of Section 366 of IPC, an abduction of a woman must be carried out by force with an intent that the victim must be seduced to illicit intercourse as a result of her abduction. So far as the charge under Section 366 of IPC is concerned, a mere finding that the woman was abducted is not enough. It must further be proved that the accused person abducted the woman with an intention that she may be compelled or forced or seduced to illicit intercourse. Unless these ingredients are present, the charge under Section 366 of IPC will not be maintainable. Suresh Vishwanath @ Karuthupandi v. State, 10-09-2018
Penal Code, 1860 - In the dying declaration given by the deceased before the Magistrate, she has stated that she and her husband were playing at the relevant point of time and there arose a wordy quarrel, as a result, the accused poured kerosene and, thereafter, she set herself ablaze. When the husband and wife were playing, suddenly, in a fit of anger, the deceased took extreme step of setting herself ablaze. Whether such an act would amount to abetment to bring the act of the accused within the ambit of Section 306 IPC. The abetment involves a mental process of instigating a person or intentional aid of a person doing of a thing. Without any positive act of the accused to instigate or aid in committing suicide, conviction cannot be based merely on the basis of some statement. Even assuming that the deceased set herself ablaze, while playing with her husband and she took such step in a fit of anger and due to over sensitive attitude, such extreme step has been taken by the deceased suddenly without any active role of the accused and incitement on the part of the accused cannot be presumed. Therefore, I am of the view that the dying declaration of the deceased cannot be a sole ground to base conviction, in view of inconsistency in her statements. Baskar v. State, 06-09-2018
Penal Code, 1860 - Section 471 - Forgery - Ingredients - 1) The document must be a forged document 2) It must have been made to use dishonestly or fraudulently as genuine 3) The person who use the said document must have reasons to believe or knowledge that the said document is a forged document. Asan Aliyar v. State, 12-09-2018
Penal Code, 1860 - Section 499 - the essential ingredients for commission of an offence of defamation would be by making publication or any imputation just by words either spoken or written or by visible representations or with knowledge or reason to believe that it will harm the reputation of any person. J. Mullai v. A. Panneerselvam, 07-09-2018
Penal Code, 1860 - Sections 120(B), 420, 336, 337 and 338 - Prevention and Corruption Act, 1988 - Section 13(2) r/w. 13(1)(d) - Medical Council Act, 1956 - Indian Council (Professional Conduct, Etiquitte and Ethics) Regulation 2002. State, Rep. by Deputy Supreintendent of Police, CBI ACB, Chennai v. K. Avvai, M/s. Joseph Eye Hospital, Trichy, 03-09-2018
Penal Code, 1860 - Sections 419, 420, 465 and 471 r/w Section 34 - The best person to complain about the impersonation and forgery is the person, who has been impersonated and whose signature / finger print has been forged. Pastor D.V. Issac Timoth v. Inspector of Police, City Crime Branch, Tiruchirappalli City, 04-09-2018
Penal Code, 1860 - Sections 420 and 464 - Cheating - Forgery - For the purpose of constituting an offence of cheating, the complainant is required to show that the accused had fraudulent or dishonest intention at the time of making promise or representation. In the absence of such culpable intention, no offence under Section 420 of the Indian Penal Code been made out against the petitioner. Insofar as the allegation of forgery, the petitioner admittedly did not commit any forgery on his purchase. While making of a false document so as to support any claim over title would constitute forgery. What would amount to making of a false document is specified in Section 464 of I.P.C., to execute a document with the intention of causing it to be believed that such document interalia was made by the authority of a person by whom or by whose authority he knows that it was not made. S.S. Janagarajan v. State of Tamil Nadu, 04-09-2018
Prevention of Corruption Act, 1988 - The appellant herein was found guilty u/ss. 7 & 13(1)(d) of the Act for demanding monthly bribe of Rs.1,000/- from one P under threat, if bribe money of Rs.1,000/- per month is not paid, he will foist a false case against him under the Tamil Nadu Prevention Act - the very conduct of the appellant throwing the money in the bush on seeing the trap team is a conduct to draw adverse inference, coupled with the fact that the presence of phenolphthalein in his hands and shirt pocket clearly establishes the fact that M.O.1, Rs.1,000/- recovered from the premises of the appellant/accused was earlier obtained by the appellant from P.W.2 towards illegal gratification and the same has been received with corrupt and motive by abusing his official position as Constable, Prohibition Enforcement Wing. Thus, the charges framed against the appellant/accused are well established. R. Chandrasekaran v. State, 05-09-2018
Prevention of Corruption Act, 1988 - The pink colour cover, which is alleged to have been used to keep the tained money at the time of entrustment, has not been seized by the prosecution and has not been spoken by the prosecution witnesses, contrarily a brown colour cover marked as Ex.P.29 has been produced before the Court, which has no relevancy even according to the prosecution. The purpose of introducing Ex.P.29, cover is very mysterious and makes the case of the prosecution murky about the recovery of tainted money. When the prosecution has failed to prove the demand, acceptance and recovery, the Court cannot presume against the appellant/accused under Section 20 of P.C. Act. Manoj Kumar Nair v. State, Thr. The Inspector of Police, SPE/CBI/ACB/Chennai, 06-09-2018
Prevention of Corruption Act, 1988 - There has to be evidence adduced by the prosecution that bribe was demanded or paid voluntarily as bribe. The demand and acceptance of the amount as illegal gratification is a sine qua non for constituting an offence under the Prevention of Corruption Act. The prosecution is duty bound to establish that there was illegal offer of bribe and acceptance thereof and it has to be founded on facts. S. Thangam v. State, 11-09-2018
Public Employment - Equal opportunity in public employment is the constitutional mandate and all the eligible persons aspiring for public employments must be given opportunity to participate in the selection through open competition process. N. Krishnamoorthy v. District Collector, Vellore District, Vellore, 03-09-2018
Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 - Section 18 - as against the order passed by the Debts Recovery Tribunal, the petitioner has got alternative remedy by way of appeal before the Debt Recovery Appellate Tribunal - Without exhausting the alternative remedy, the petitioner has filed the above Civil Revision Petitions under Article 227 of the Constitution of India - aggrieved party cannot challenge the SARFAESI proceedings directly by filing a Civil Revision Petition under Article 227 of the Constitution of India or a Writ Petition under Article 226 of the Constitution of India without exhausting the remedy available to them before the Debts Recovery Tribunal and Debt Recovery Appellate Tribunal, as the case may be. K. Narasimhan v. Oriental Bank of Commerce, Spencer Plaza Branch, 11-09-2018
Securitisation and Reconstruction of Financial Assets and Enforcement of Securities Interest Act, 2002 - the aggrieved parties cannot challenge the proceedings initiated under the SARFAESI Act directly by filing a writ petition under Article 226 of the Constitution without exhausting the alternative remedy before the the Debts Recovery Tribunal. P.N. Selvam v. State Bank of India, 05-09-2018
Security Interest and Recovery of Debt Law and Miscellaneous Provisions (Amendment) Act, 2016 - the petitioner, claiming right of tenancy as per Section 17(4)-A of the SARFAESI Act, should approach only the Debts Recovery Tribunal, to satisfy that his tenancy right in security assets falls under the sub-clause (a) of sub-clause (b) or sub-clause (c) or sub-clause (d) of clause (1) of the said Act. Indira v. Karur Bank Divisional Office, 05-09-2018
Service Law - Government has took a policy decision to appoint teachers on contract basis under consolidated pay. When policy decision has been taken by the Government under the right conferred under the constitutional provisions, the Court has no jurisdiction to interfere with it, unless and otherwise any violation is shown. It is settled that Courts should not interfere in matters of policy or in the day-to-day functioning of any departments or Government or statutory bodies. K.S. Muralidhararao v. Teachers Recruitment Board, 05-09-2018
Service Law - Merely acquiring qualification alone will not entail any right for the petitioner for promotion, but the subject vacancy and seniority are to be followed for promotion from one lower post to higher post. In the Department of School Education, vacancies are filled through promotion and by new appointment. Thus, a vacancy alone is not a matter of right for the petitioner to be promoted without following the rules, seniority and vacancy available. P. Saroja v. Director of School Education, 05-09-2018
Service Law - Seniority - It is true that the seniority has a definite connotation in service jurisprudence. The seniority is a civil right, which is determined from the date of initial appointment of an employee to a service on substantive basis. In other words, an employee enjoys seniority from a date, when he became member of the service as per rules. D. Kalyanasundaram v. Director of School Education, D.P.I. Complex, Chennai, 11-09-2018
Service Law - Seniority has to be decided on the basis of rules in force on the date of appointment and no retrospective promotion or seniority can be granted from a date when an employee has not even been born in the cadre. It is also settled that date of occurrence of vacancy is not relevant for the determination of seniority. In the Department of Education, vacancies are filled through promotion and by new appointment. A vacancy alone is not a matter of right for the petitioner to be promoted without following the rules, seniority and available vacancy. P. Saroja v. Director of School Education, 05-09-2018
Comments
Post a Comment