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Code of Criminal Procedure, 1973: s.300(1) – Scope of -s.300(1) is wider than Article 20(2) of the Constitution – While, Article 20(2) only states that `no one can be prosecuted and punished for the same offence more than once’, s.300 (1) states that no one can be tried and convicted for the same offence or even for a different offence but on the same facts – In the instant case, accused was already convicted u/s.138 of Negotiable Instruments Act, 1881 – He cannot be again tried or punished on the same facts under s.420 or any other provision of IPC or any other statute – Constitution of India, 1950 – Article 20(2) – Negotiable Instruments Act, 1881 – s.138 – Penal Code, 1860 – s.420. CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 1160 of 2006. From the Judgment AND Order dated 7.10.2005 of the High Court of Judicature of Andhra Pradesh at Hyderabad in Criminal Appeal No. 1581 of 1999 and Criminal Revision Case No. 312 of 1999. Bina Madhavan, Vinita Sasidharan (for Lawyer’s Knit AND Co.) for the Appellant. Ramesh Allanki (for D. Mahesh Babu) for the Respondents.

REPORTABLE IN THE SUPREME COURT OF INDIACRIMINAL APPELLATE JURISDICTIONCRIMINAL APPEAL NO. 1160 OF 2006Kolla Veera Raghav Rao ..AppellantversusGorantla Venkateswara Rao & Anr. ..RespondentsO R D E RHeard learned counsel for the parties.This Appeal has been filed against the impugnedjudgment and order dated 07th October, 2005 passed by theHigh Court of Andhra Pradesh in Criminal Appeal … Continue reading

guilty of killing the former Prime Minister Shri Rajiv Gandhi Although, the parties have made diametrically opposite assertions about the atmosphere which prevailed in the State after rejection by the President of India of the mercy petitions filed by V. Sriharan @ Murugan and two others, we do not consider it necessary to decide whether the support extended by the political outfits and others to those who were found guilty of killing the former Prime Minister Shri Rajiv Gandhi may impede fair adjudication of the writ petitions filed by them warrants transfer of the three writ petitions from the Madras High Court to this Court. However, keeping in view the fact that an identical question is pending consideration before this Court in Writ Petition (Criminal) D. No. 16039 of 2011 titled Devender Pal Singh Bhullar v. State of NCT of Delhi, we deem it proper to exercise power under Article 139A(1) of the Constitution. 2. L. K. Venkat and Javid Iqbal and others have filed these petitions for transfer of Writ Petition No. 20287 of 2011 titled V. Sriharan @ Murugan v. Union of India and others, Writ Petition No. 20288 of 2011 titled T. Suthendraraja @ Santhan v. Union of India and others and Writ Petition No. 20289 of 2011 titled A.G. Perarivalan @ Arivu v. Union of India and others which are pending before the Madras High Court to this Court. In the result, the transfer petitions are allowed and Writ Petition No. 20287 of 2011 titled V. Sriharan @ Murugan v. Union of India and others, Writ Petition No. 20288 of 2011 titled T. Suthendraraja @ Santhan v. Union of India and others and Writ Petition No. 20289 of 2011 titled A.G. Perarivalan @ Arivu v. Union of India and others pending before the Madras High Court are transferred to this Court. 12. The Registrar General of the Madras High Court is directed to ensure that the records of the three writ petitions are sent to this Court per messenger within two weeks of the receipt of communication from the Registry of this Court. 13. The transferred cases shall be listed before the Court on 10.7.2012 for final disposal. Notice be issued to the writ petitioners that their case will be taken up for hearing by this Court on 10.7.2012. One set of the notices be also sent to the Superintendent, Central Jail, Vellore, Tamil Nadu, who shall ensure that the same are served upon the writ petitioners well before 10.7.2012. 14. The Registry is directed to send copies of this order to the Registrar General of Madras High Court and Superintendent, Central Jail, Vellore, Tamil Nadu by fax.

NON-REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL ORIGINAL JURISDICTION TRANSFER PETITION (CRIMINAL) NOS. 383-385 OF 2011 L.K. Venkat … Petitioner Versus Union of India and others … Respondents WITH TRANSFER PETITION (CRIMINAL) NOS. 462-464 OF 2011 Javid Iqbal & others … Petitioners Versus V. Sriharan @ Murugan and others … Respondents J U D … Continue reading

constables in the Border Security Force (BSF). On completion of 10 years service, they tendered resignation. Their resignation was accepted by the Commandant 48 BN BSF. The order accepting resignation provided that they would be entitled to pensionary benefits at their own request on extreme compassionate grounds. Later on, it was found that the pensionary benefits were not admissible to them and few others whose resignation was accepted under Rule 19 of the Border Security Force Rules, 1969 (for short, ‘BSF Rules’). Accordingly, on October 20, 1998, a letter was sent intimating them that no pensionary benefits were admissible to those who have proceeded on resignation under Rule 19 of the BSF Rules. However, their case for reinstatement in BSF would be considered subject to refund of all payment made to them from the Government such as GPF, Gratuity, CGEGIS, etc. on their resignation. The respondents challenged the above communication by filing two separate Writ Petitions.In view of the decisions of this Court in Union of India & Others Vs. Rakesh Kumar (supra) and Raj Kumar & Others Vs. Union of India and Another (supra), the legal position that emerges is this : Rule 19 of the BSF Rules does not entitle any pensionary benefits on resignation of its personnel. The pensionary benefits are not ordinarily available on resignation under CCS (Pension) Rules since Rule 26 provides for forfeiture of service on resignation. However, by virtue of G.O. dated December 27, 1995 read with Rule 19 of BSF Rules, the member of BSF would be entitled to get pensionary benefits if he is otherwise eligible. Such personnel must, therefore, satisfy his eligibility under CCS (Pension) Rules. The CCS (Pension) Rules do not provide that a person who has resigned before completing 20 years of service is entitled to the pensionary benefits. Rule 49 only prescribes the procedure for calculation and quantification of pension amount and not the minimum qualifying service. 13. The view taken by the Single Judge and judgment of the Division Bench upholding the view taken by the Single Judge cannot be upheld and have to be set aside in light of the legal position noted above.In the present case, the respondents had resigned from BSF service immediately after completion of 10 years service and, therefore, they are not entitled to any pensionary benefits. 15. We, accordingly, allow these Appeals and set aside the orders dated August 25, 2000 passed by the Division Bench and dated September 29, 1999 passed by the Single Judge. We, however, observe that amount of pension paid to the respondents herein, if any, shall not be recovered. 16. No costs.

  REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO(s). 9647-9650 OF 2003   UNION OF INDIA & ORS. Appellant (s) VERSUS MADHU E.V. & ANR. Respondent(s) J U D G M E N T R.M. LODHA, J.   Delay condoned. 2. We have heard Mr. Tara Chandra Sharma, learned counsel … Continue reading

Alarming rise in heinous crimes like kidnapping, sexual assault on women and dacoity have impinged upon the right to life and the right to live in a safe environment which are within the contours of Article 21 of the Constitution of India. One of the contributory factors to such increase is use of black films on windows/windshields of four-wheeled vehicles. The petitioner, as a public spirited person, has invoked the extra-ordinary jurisdiction of this Court under Article 32 of the Constitution in the present public interest litigation, praying for certain directions to stop this menace. According to the petitioner, this Court should issue a writ or direction requiring use of such safety glasses on the windows/windshields in vehicles having 100 per cent Visual Light Transmission (for short ‘VLT’) only and, to that extent, the petitioner challenges the correctness of Rule 100 of the Motor Vehicles Rules, 1989 (for short “the Rules”). He also prays for prohibition on use of black films on the glasses of the vehicles, proper implementation of law in that behalf and finally, for taking stringent actions against the offenders, using vehicles with black filmed glasses. He also prays that a larger police force should be deputed to monitor such offences. The manufacturer of the vehicle may manufacture the vehicles with tinted glasses which have Visual Light Transmission (VLT) of safety glasses windscreen (front and rear) as 70 per cent VLT and side glasses as 40 per cent VLT, respectively. No black film or any other material can be pasted on the windscreens and side glasses of a vehicle. 27. For the reasons afore-stated, we prohibit the use of black films of any VLT percentage or any other material upon the safety glasses, windscreens (front and rear) and side glasses of all vehicles throughout the country. The Home Secretary, Director General/Commissioner of Police of the respective States/Centre shall ensure compliance with this direction. The directions contained in this judgment shall become operative and enforceable with effect from 4th May, 2012. 28. With the above directions, we partially allow this writ petition and prohibit use of black films of any percentage VLT upon the safety glasses, windscreens (front and rear) and side glasses. However, there shall be no order as to costs.

REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL ORIGINAL JURISDICTION WRIT PETITION (CIVIL) NO. 265 OF 2011 Avishek Goenka … Petitioner Versus Union of India & Anr. … Respondents     J U D G M E N T   Swatanter Kumar, J. 1. Alarming rise in heinous crimes like kidnapping, sexual assault on women … Continue reading

No rights will confirm for long standing possession of a property = False averments of facts and untenable contentions are serious problems faced by our courts. The other problem is that litigants deliberately create confusion by introducing irrelevant and minimally relevant facts and documents. The court cannot reject such claims, defences and pleas at the first look. It may take quite sometime, at times years, before the court is able to see through, discern and reach to the truth. More often than not, they appear attractive at first blush and only on a deeper examination the irrelevance and hollowness of those pleadings and documents come to light. 38. Our courts are usually short of time because of huge pendency of cases and at times the courts arrive at an erroneous conclusion because of false pleas, claims, defences and irrelevant facts. A litigant could deviate from the facts which are liable for all the conclusions. In the journey of discovering the truth, at times, this Court, on later stage, but once discovered, it is the duty of the Court to take appropriate remedial and preventive steps so that no one should derive benefits or advantages by abusing the process of law. The court must effectively discourage fraudulent and dishonest litigants. 39. Now, when we revert to the facts of this case it becomes quite evident that the appellant is guilty of suppressing material facts and introducing false pleas and irrelevant documents. The appellant has also clouded the entire case with pleas which have nothing to do with the main controversy involved in the case. IRRELEVANT DOCUMENTS: 40. All documents filed by the appellant along with the plaint have no relevance to the controversy involved in the case. We have reproduced a list of the documents to demonstrate that these documents have been filed to mislead the Court. The First Appellate Court has, in fact, got into the trap and was misled by the documents and reached to an entirely erroneous finding that resulted in undue delay of disposal of a small case for almost 17 years. FALSE AND IRRELEVANT PLEAS: 41. The appellant is also guilty of introducing untenable pleas. The plea of adverse possession which has no foundation or basis in the facts and circumstances of the case was introduced to gain undue benefit. The Court must be cautious in granting relief to a party guilty of deliberately introducing irrelevant and untenable pleas responsible for creating unnecessary confusion by introducing such documents and pleas. These factors must be taken into consideration while granting relief and/or imposing the costs. 42. On the facts of the present case, following principles emerge: 1. It is the bounden duty of the Court to uphold the truth and do justice. 2. Every litigant is expected to state truth before the law court whether it is pleadings, affidavits or evidence. Dishonest and unscrupulous litigants have no place in law courts. 3. The ultimate object of the judicial proceedings is to discern the truth and do justice. It is imperative that pleadings and all other presentations before the court should be truthful. 4. Once the court discovers falsehood, concealment, distortion, obstruction or confusion in pleadings and documents, the court should in addition to full restitution impose appropriate costs. The court must ensure that there is no incentive for wrong doer in the temple of justice. Truth is the foundation of justice and it has to be the common endeavour of all to uphold the truth and no one should be permitted to pollute the stream of justice. 5. It is the bounden obligation of the Court to neutralize any unjust and/or undeserved benefit or advantage obtained by abusing the judicial process. 6. Watchman, caretaker or a servant employed to look after the property can never acquire interest in the property irrespective of his long possession. The watchman, caretaker or a servant is under an obligation to hand over the possession forthwith on demand. According to the principles of justice, equity and good conscience, Courts are not justified in protecting the possession of a watchman, caretaker or servant who was only allowed to live into the premises to look after the same. 7. The watchman, caretaker or agent holds the property of the principal only on behalf the principal. He acquires no right or interest whatsoever in such property irrespective of his long stay or possession. 8. The protection of the Court can be granted or extended to the person who has valid subsisting rent agreement, lease agreement or licence agreement in his favour. 43. In the instant case, we would have ordinarily imposed heavy costs and would have ordered restitution but looking to the fact that the appellant is a Watchman and may not be able to bear the financial burden, we dismiss these appeals with very nominal costs of Rs. 25,000/- to be paid within a period of two months and direct the appellant to vacate the premises within two months from today and handover peaceful possession of the suit property to the respondent-Society. In case, the appellant does not vacate the premises within two months from today, the respondent-Society would be a liberty to take police help and get the premises vacated. 44. Both the appeals are, accordingly dismissed, leaving the parties to bear their own costs.

    IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NOS. 4012-4013 OF 2012 ARISING OUT OF S.L.P.(C) NOS. 14163-14164 OF 2012 ARISING OUT OF CC NOS. 21115-21116 OF 2011   A. SHANMUGAM …… APPELLANT VERSUS ARIYA KSHATRIYA RAJAKULA VAMSATHU MADALAYA NANDHAVANA PARIPALANAI SANGAM REPRESENTED BY ITS PRESIDENT ETC. ….. RESPONDENTS J … Continue reading

Intellectual Property – Passing-off in trade mark – Infringement of copyright – Appellant is sole proprietor of a Karnataka based firm carrying on manufacture of incense sticks (agarbathis), which adopted the trade mark `Eenadu’ and started selling its product in the State of Andhra Pradesh – Respondent company, engaged in the business of publishing a newspaper in Telugu entitled as `Eenadu’ and other businesses in the State of Andhra Pradesh, filed a suit for infringement of copyrights and passing-off trade mark – Whether the appellant should be permitted to sell his product with the mark `Eenadu’ in the State of Andhra Pradesh – Held: The respondent company’s mark `Eenadu’ has acquired extraordinary reputation and goodwill in the State of Andhra Pradesh – `Eenadu’ means literally the products or services provided by the respondent company in the State of Andhra Pradesh – In this background, the appellant cannot be referred or termed as an honest concurrent user of the mark `Eenadu’ – Adoption of the words `Eenadu’ is ex facie fraudulent and mala fide from the very inception – By adopting the mark `Eenadu’ in the State of Andhra Pradesh, the appellant clearly wanted to ride on the reputation and goodwill of the respondent company – Permitting the appellant to sell his product with the mark `Eenadu’ in the State of Andhra Pradesh would definitely create confusion in the minds of the consumers because the appellant is selling Agarbathies marked `Eenadu’ designed or calculated to lead purchasers to believe that its product Agarbathies are in fact the products of the respondent company – No one can be permitted to encroach upon the reputation and goodwill of other parties – This approach is in consonance with protecting the proprietary rights of the respondent company. The appellant is the sole proprietor of a Karnataka based firm carrying on manufacture of incense sticks (agarbathis), which adopted the trade mark `Eenadu’ and started selling its product in the State of Andhra Pradesh. The word `Eenadu’ means `this land’ in Kannada, Malayalam and Tamil languages and `today’ in Telugu language. The respondent company, which was engaged in the business of publishing a newspaper in Telugu entitled as `Eenadu’ and other businesses in the State of Andhra Pradesh, filed a suit for infringement of copyrights and passing-off trade mark. The respondent company contended that the use of the word `Eenadu’ by the appellant amounted to infringement of their copyright and passing-off in trade mark. The trial court partially decreed the suit of the respondent company by injuncting the appellant from using the words `Eenadu’ in the State of Andhra Pradesh. The appellant was not injuncted from using the words `Eenadu’ in the entire country other than in the State of Andhra Pradesh. The appellant filed appeal before the High Court. The respondent company also filed an appeal praying that the order of injunction to be made absolute and not be confined to the State of Andhra Pradesh. A Single Judge of the High Court dismissed the appeal filed by respondent company while allowing the appeal filed by the appellant. The respondent company filed Letters Patent Appeal before the Division Bench of the High Court which was allowed, thereby decreeing the original suit filed by the respondents in 1999. Hence the present appeals. Disposing of the appeals, the Court HELD: 1.1. The respondent company’s mark `Eenadu’ has acquired extra- ordinary reputation and goodwill in the State of Andhra Pradesh. `Eenadu’ newspaper and TV are extremely well known and almost household words in the State of Andhra Pradesh. The word `Eenadu’ may be a descriptive word but has acquired a secondary or subsidiary meaning and is fully identified with the products and services provided by the respondent company. [Para 100] [1053-G-H; 1054-A] 1.2. The appellant is a Karnataka based company which started manufacturing its product in Bangalore in the name of `Ashika’ and started selling its product in the State of Andhra Pradesh in 1995. The appellant started using the name `Eenadu’ for its Agarbathi and used the same artistic script, font and method of writing the name which obviously cannot be a co-incidence. The appellant company after adoption of name `Eenadu’ accounted for 90% of sale of their product Agarbathi. [Para 101] [1054-B] 3. On consideration of the totality of facts and circumstances of the case, the following findings and conclusions are arrived at: a) The respondent company’s mark `Eenadu’ has acquired extraordinary reputation and goodwill in the State of Andhra Pradesh. The respondent company’s products and services are correlated, identified and associated with the word `Eenadu’ in the entire State of Andhra Pradesh. `Eenadu’ means literally the products or services provided by the respondent company in the State of Andhra Pradesh. In this background the appellant cannot be referred or termed as an honest concurrent user of the mark `Eenadu'; b) the adoption of the words `Eenadu’ is ex facie fraudulent and mala fide from the very inception. By adopting the mark `Eenadu’ in the State of Andhra Pradesh, the appellant clearly wanted to ride on the reputation and goodwill of the respondent company; c) permitting the appellant to carry on his business would in fact be putting a seal of approval of the court on the dishonest, illegal and clandestine conduct of the appellant; d) permitting the appellant to sell his product with the mark `Eenadu’ in the State of Andhra Pradesh would definitely create confusion in the minds of the consumers because the appellant is selling Agarbathies marked `Eenadu’ as to be designed or calculated to lead purchasers to believe that its product Agarbathies are in fact the products of the respondent company. In other words, the appellant wants to ride on the reputation and goodwill of the respondent company. In such a situation, it is the bounden duty and obligation of the court not only to protect the goodwill and reputation of the respondent company but also to protect the interest of the consumers; e) permitting the appellant to sell its product in the State of Andhra Pradesh would amount to encouraging the appellant to practise fraud on the consumers; f) permitting the appellant to carry on his business in the name of `Eenadu’ in the State of Andhra Pradesh would lead to eroding extra- ordinary reputation and goodwill acquired by the respondent company over a passage of time; g) the appellant’s deliberate misrepresentation has the potentiality of creating serious confusion and deception for the public at large and the consumers have to be saved from such fraudulent and deceitful conduct of the appellant; h) permitting the appellant to sell his product with the mark `Eenadu’ would be encroaching on the reputation and goodwill of the respondent company and this would constitute invasion of proprietary rights vested with the respondent company and i) honesty and fair play ought to be the basis of the policies in the world of trade and business. [Para 102] [1054-C-H; 1055-A-H; 1056-A] 1.4. The law is consistent that no one can be permitted to encroach upon the reputation and goodwill of other parties. This approach is in consonance with protecting proprietary rights of the respondent company. [Para 103] [1056-B] Daimler Benz Aktiegesellschaft and another v. Hybo Hindustan AIR 1994 Delhi 239; Ruston & Hornsby Ltd. v. The Zamindara Engineering Co. 1969 (2) SCC 727; Laxmikant V. Patel v. Chetanbhai Shah and Another 2002 (3) SCC 65; Satyam Infoway Ltd. v. Sifynet Solutions (P) Limited 2004 (6) SCC 145; Ramdev Food Products (P) Limited v. Arvindbhai Rambhai Patel and Others 2006 (8) SCC 726; Midas Hygiene Industries (P) Ltd. and another v. Sudhir Bhatia and others (2004) 3 SCC 90; Madhubhan Holiday Inn v. Holiday Inn Inc. 100 (2002) DLT 306 (DB); Mahendra & Mahendra Paper Mills Limited v. Mahindra & Mahindra Limited (2002) 2 SCC 147; Bata India Limited v. Pyare Lal & Company, Meerut City & Ors. AIR 1985 All 242; N.R. Dongre and others v. Whirlpool Corporation and another (1996) 5 SCC 714; Godfrey Philips India Limited v. Girnar Food & Beverages (P) Limited (2004) 5 SCC 257; Info Edge (India) Private Limited and another v. Shailesh Gupta and another 98 (2002) DLT 499; Kamal Trading Co., Bombay and Others v. Gillette U.K. Limited [1988] IPLR 135; Honda Motors Company Limited v. Charanjit Singh & Others (101 (2002) DLT 359); M/s. Bengal Waterproof Limited Vs. M/s. Bombay Waterproof Manufacturing Company and Another (1997) 1 SCC 99; Heinz Italia and another v. Dabur India Limited (2007) 6 SCC 1; Ford Motor Company of Canada Limited and another v. Ford Service Centre 2009 (39) PTC 149; Prakash Roadline Limited v. Prakash Parcel Service (P) Ltd. 48 (1992) Delhi Law Times 390 – referred to. Taylor Mary Campbell v. Secretary of Health and Human Services 69 Fed. Cl. 775 (2006) [US Court of Federal Claims]; Lamilem Badasa v. Michael B. Mukasey 540 F.3d 909 [US Court of Appeals]; Reddaway & Co. and Another v. Banham & Co. and Another 1895-99 All ER 133; Reckitt & Colman Products Ltd. v. Borden Inc. and others 1990 (1) ALL ER 873; Harrods Limited v. R. Harrod Limited (1924) RPC 74; Harrods Limited v. Harrodian School Limited (1996) RPC 697; Office Cleaning Services Limited v. Westminster Office Cleaning Association 1944 (2) All ER 269; Taittinger and others v. Allbev Limitd and others (1994) 4 All ER 75 – referred to. Case Law Reference: AIR 1994 Delhi 239 referred to Para 29, 76 69 Fed. Cl. 775 (2006) referred to Para 37 540 F.3d 909 referred to Para 37 1895-99 All ER 133 referred to Para 61 1990 (1) ALL ER 873 referred to Para 63 1969 (2) SCC 727 referred to Para 64 2002 (3) SCC 65 referred to Para 65 2004 (6) SCC 145 referred to Para 66 2006 (8) SCC 726 referred to Para 67, 95 (1924) RPC 74 referred to Para 68 (1996) RPC 697 referred to Para 69, 73, 77 (2004) 3 SCC 90 referred to Para 70 (2002) DLT 306 (DB referred to Para 71 (2002) 2 SCC 147 referred to Para 74 AIR 1985 All 242 referred to Para75 (1996) 5 SCC 714 referred to Para 79 (2004) 5 SCC 257 referred to Para 80 98 (2002) DLT 499 referred to Para 81 1944 (2) All ER 269 referred to Para 82 (1994) 4 All ER 75 referred to Para 87 1988 IPLR 135 referred to Para 89 (2002) DLT 359 referred to Para 90 (1997) 1 SCC 99 referred to Para 93 (2007) 6 SCC 1 referred to Para 94 2009 (39) PTC 149 referred to Para 96 (1992) DLT 390 referred to Para 97 CIVIL APPELLATE JURISDICTION : Civil Appeal No. 6314-6315 of 2001. From the Judgment & Order dated 15.06.2001 of the High Court of Andhra Pradesh at Hyderabad in LPA Nos. 12 & 13 of 2001. Pratibha M. Singh, Kapil Wadhwa, Abhinav Mukherjee for the Appellant. C.A. Sundaram, Neelima Tripathi, G.V.S. Jagannadha Rao, Rohini Musa, Abhishek Gupta, K.V. Mohan, Zafar Inyat, Md. Niyazuddin, Anandh Kannan for the Respondents.

REPORTABLE IN THE SUPREME COURT OF INDIA  CIVIL   APPELLATE JURISDICTION   CIVIL APPEAL NOS.6314-15 OF 2001   T.V. Venugopal ` … Appellant   Versus   Ushodaya Enterprises Ltd. & Another … Respondents   J U D G M E N T Dalveer Bhandari, J.   1. These appeals are directed against the judgment   … Continue reading

Negotiable Instruments Act, 1881: ss. 139 and 138 – Presumption in favour of holder – Manner of rebuttal of statutory presumption – Held: Presumption mandated by s. 139 includes existence of legally enforceable debt or liability – It is in nature of rebuttable presumption – Accused can raise a defence wherein existence of legally enforceable debt or liability can be contested – However, initial presumption favours the complainant – Reverse onus clause is included and the same is guided by the test of proportionality – Accused cannot be expected to discharge an unduly high standard of proof – Standard of proof for rebutting presumption is of `preponderance of probabilities’ – If accused is able to raise a probable defence which creates doubts about the existence of legally enforceable debt or liability, prosecution can fail – On facts, dishonour of cheque on account of `stop payment’ instructions sent by accused – Complaint u/s. 138 – Acquittal by trial court in view of discrepancies in the complainant’s version – Conviction by High Court since accused did not raise a probable defence to rebut the statutory presumption, does not call for interference – Complaint disclosed prima facie existence of a legally enforceable debt or liability – Accused failed to reply to the statutory notice u/s.138. s. 138 – Applicability of – Held: s. 138 is applicable when cheque is dishonoured on account of `stop payment’ instructions sent by accused to his bank in respect of post-dated cheque, irrespective of insufficiency of funds. The appellant engaged the services of the respondent-engineer for supervising the construction of his house. The appellant requested the respondent for a hand loan to meet the construction expenses. In view of the acquaintance, the respondent paid the same by way of cash. The appellant issued a cheque for repayment of the said amount. The respondent presented the cheque for encashment. The bank issued a return memo stating that the payment had been stopped by the drawer. Thereafter, the appellant did not honour the cheque within the statutorily prescribed period and also did not reply to the notice u/s. 138 of the Negotiable Instruments Act, 1881. The respondent filed a complaint against the appellant for offence punishable u/s.138 of the Act. The trial court acquitted the appellant u/s.138 in view of some discrepancies in the complainant’s version. The High Court holding that the appellant did not raise a probable defence to rebut the statutory presumption, convicted the appellant for commission of offence u/s. 138 of the Act and directed to pay fine of Rs. 75,000/-. Hence the present appeal. Disposing of the appeal, the Court HELD: 1. Ordinarily in cheque bouncing cases, what the courts have to consider is whether the ingredients of the offence enumerated in s.138 of the Negotiable Instruments Act, 1881 have been met and if so, whether the accused was able to rebut the statutory presumption contemplated by s.139 of the Act. With respect to the facts of the instant case, it must be clarified that contrary to the trial court’s finding, s.138 of the Act can indeed be attracted when a cheque is dishonoured on account of `stop payment’ instructions sent by the accused to his bank in respect of a post- dated cheque, irrespective of insufficiency of funds in the account. [Para 9] [518-D-F] Goa Plast (Pvt.) Ltd. v. Chico Ursula D’Souza (2003) 3 SCC 232, referred to. 2.1. The presumption mandated by s.139 of the Act does indeed include the existence of a legally enforceable debt or liability. This is in the nature of a rebuttable presumption and it is open to the accused to raise a defence wherein the existence of a legally enforceable debt or liability can be contested. However, there can be no doubt that there is an initial presumption which favours the complainant. Section 139 of the Act is an example of a reverse onus clause that has been included in furtherance of the legislative objective of improving the credibility of negotiable instruments. While s.138 of the Act specifies a strong criminal remedy in relation to the dishonour of cheques, the rebuttable presumption u/s. 139 is a device to prevent undue delay in the course of litigation. However, it must be remembered that the offence made punishable by s.138 can be better described as a regulatory offence since the bouncing of a cheque is largely in the nature of a civil wrong whose impact is usually confined to the private parties involved in commercial transactions. In such a scenario, the test of proportionality should guide the construction and interpretation of reverse onus clauses and the accused/defendant cannot be expected to discharge an unduly high standard or proof. In the absence of compelling justifications, reverse onus clauses usually impose an evidentiary burden and not a persuasive burden. When an accused has to rebut the presumption under s.139, the standard of proof for doing so is that of `preponderance of probabilities’. Therefore, if the accused is able to raise a probable defence which creates doubts about the existence of a legally enforceable debt or liability, the prosecution can fail. The accused can rely on the materials submitted by the complainant in order to raise such a defence and it is conceivable that in some cases the accused may not need to adduce evidence of his/her own. [Para 14] [525-G; 526-A-G] 2.2. The High Court’s view that the accused did not raise a probable defence is accepted. The defence of the loss of a blank cheque was taken up belatedly and the accused had mentioned a different date in the `stop payment’ instructions to his bank. The instructions to `stop payment’ had not even mentioned that the cheque had been lost. A perusal of the trial record also shows that the accused appeared to be aware of the fact that the cheque was with the complainant. Furthermore, the very fact that the accused had failed to reply to the statutory notice u/s.138 of the Act leads to the inference that there was merit in the complainant’s version. Apart from not raising a probable defence, the appellant-accused was not able to contest the existence of a legally enforceable debt or liability. The fact that the accused had made regular payments to the complainant in relation to the construction of his house does not preclude the possibility of the complainant having spent his own money for the same purpose. As per the record of the case, there was a slight discrepancy in the complainant’s version, in so far as it was not clear whether the accused had asked for a hand loan to meet the construction-related expenses or whether the complainant had incurred the said expenditure over a period of time. Either way, the complaint discloses the prima facie existence of a legally enforceable debt or liability since the complainant has maintained that his money was used for the construction-expenses. Since the accused did admit that the signature on the cheque was his, the statutory presumption comes into play and the same has not been rebutted even with regard to the materials submitted by the complainant. Thus, there is no reason to interfere with the final order of the High Court which recorded a finding of conviction against the appellant. [Paras 15 and 16] [526-H; 257-A-G] Krishna Janardhan Bhat v. Dattatraya G. Hegde (2008) 4 SCC 54; Hiten P. Dalal v. Bratindranath Banerjee (2001) 6 SCC 16; Mallavarapu Kasivisweswara Rao v. Thadikonda Ramulu Firm and Ors. 2008 (8) SCALE 680; Bharat Barrel & Drum Manufacturing Company v. Amin Chand Pyarelal (1993) 3 SCC 35; M.M.T.C. Ltd. and Anr. v. Medchl Chemicals & Pharma (P) Ltd. (2002) 1 SCC 234, referred to. Case Law Reference: 2003 (3) SCC 232 Referred to. Para 9 (2008) 4 SCC 54 Referred to. Para 10 (2001) 6 SCC 16 Referred to. Para 11 2008 (8) SCALE 680 Referred to. Para 12 1993 (3) SCC 35 Referred to. Para 12 (2002) 1 SCC 234 Referred to. Para 13 CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 1020 of 2010. From the Judgment & Order dated 26.10.2005 of the High Court of Karnataka, Bangalore in Criminal Appeal No. 1367 of 2005. Girish Ananthamurthy, P.P. Singh for the Appellant. Basava Prabhu S. Patil, B. Subrahmanya Prasad, V.N. Raghupathy for the Respondent.

REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 1020 OF 2010 [Arising out of SLP (Crl.) No. 407 of 2006] Rangappa … Appellant Versus Sri Mohan … Respondent   JUDGMENT K.G. Balakrishnan, C.J.I. 1. Leave granted. 2. In the present case, the trial court had acquitted the appellant-accused in a … Continue reading

Consumer Protection Act, 1986 – ss.2(1)(d),(g) & (o) and 12 – Consumer – Deficiency in service – Claim for damages – Truck purchased in auction sale – Respondents authorities delayed delivery of the truck to appellant- auction purchaser and also, despite efforts made by him, did not hand over necessary papers of the truck to him for long number of years – Appellant could not ply the truck for such long number of years – Petition by appellant u/s.12 claiming damages – Held: Buyers of goods/commodities for “self consumption” in economic activities in which they are engaged would be consumers as defined in the Act – Appellant was ‘consumer’ within meaning of s.2(1)(d) as he purchased the truck for earning his livelihood by means of self-employment – Conduct, behaviour and attitude of respondents was highly reprehensible – There was deficiency in services on their part – Rs.1 lakh with 6% interest p.a. directed to be paid by respondents jointly or severally to the appellant. A truck was put in auction sale, on account of default in payment of instalments by its previous owner towards the loan taken by him from bank. Bid of the appellant was the highest. In 1999, the auction was confirmed and treated to be a final sale in favour of the appellant. Appellant deposited the requisite money consideration, however, the respondents authorities handed over the truck in question to the appellant only after six months from the date of auction. Even after getting delivery of the truck, the appellant could not start plying the same as he was not delivered the relevant papers thereof for long number of years despite efforts made by him. The relevant papers of the truck were handed over to the appellant six years after the date of auction. Meanwhile, the appellant filed petition Section 12 of the Consumer Protection Act, 1986 claiming damages. The appellant claimed damages @ Rs.500/- per day and interest at 5% on the amount of Rs.70,000/- deposited by him for the price of the truck and in addition, further claimed damages for mental and social injuries to the tune of Rs.50,000/- plus litigation expenses. The questions which arise for consideration in the present appeals were (i) whether the appellant was a ‘consumer’ within the definition of Section 2(1)(d) of the Act; and (ii) whether there was deficiency in services committed by respondents as contemplated under Section 2(1)(g) of the Act. Disposing of the appeals, the Court HELD:1. Appellant would be deemed to be a consumer within the definition as contained in Section 2(1)(d) of the Consumer Protection Act, 1986. A plain reading of Section 2(1) (d) of the Act makes it abundantly clear that appellant would fall in the category of a ‘consumer’ as he had bought the truck for a consideration which was paid by him. It was bought to be used exclusively for the purpose of earning his livelihood by means of self- employment. A further reading of the aforesaid definition of ‘consumer’ makes it clear that Parliament wanted to exclude from the scope of the definition the persons, who obtain goods for resale and also those who purchase goods with a view to use such goods for carrying on any activity for earning. The immediate purpose as distinct from the ultimate purpose of purchase, sale in the same form or after conversion and a direct nexus with profit or loss would be the determinants of the character of a transaction- whether it is for a “commercial purpose” or not. Thus, buyers of goods or commodities for “self consumption” in economic activities in which they are engaged would be consumers as defined in the Act. The purchase of the truck by the appellant would also be covered under explanation to Section 2(1)(d) of the Act. The appellant had mentioned categorically that he had bought the said truck to be used exclusively by him for the purpose of earning his livelihood, by means of self-employment. Even if he was to employ a driver for running the truck aforesaid, it would not have changed the matter in any case, as even then appellant would have continued to earn his livelihood from it and of course, by means of self-employment. Furthermore, there is nothing on record to show that he wanted to use the truck for any commercial purpose. [Paras 23, 24, 25 and 26] [1195-H; 1196-H; 1196-A-G] 2. There is nothing on record to show that any stay was granted in favour of any party, restraining the respondents not to deliver the papers of the truck to the appellant. It would go to show that respondents were unlawfully holding back the papers with them, for which, otherwise they were not entitled to do so. The truck in question was actually handed over to the appellant almost after six months from the date of auction in his favour. Even after getting delivery of the truck he could not have started plying the same unless he was delivered the relevant papers thereof. There is no dispute, which even otherwise stands proved from the voluminous material available on record that despite best efforts made by the appellant, the relevant papers of the truck were handed over to him only after six years from the date of the auction. No plausible or convincing reasons have been assigned by the respondents for not doing so. From the narration of the aforesaid facts, it is clearly made out that respondents were at fault in performance of the services which was otherwise required to be performed by them. What more could be the deficiency in service cannot be described. The respondents were certainly imperfect and the same would amount to shortcoming in quality in providing the service to the appellant. Thus, all the ingredients, to enable the appellant to claim damages under the Act were made out. This has in fact been found by the National Commission also, that is why it proceeded to award compensation of Rs. 25,000/- to the appellant. [Paras 21, 28, 29 and 30] [1194-H; 1195-A; 1197-F-H; 1198-A-C] 3.1. The appellant suffered loss of earning firstly due to non-delivery of vehicle and then due to highly belated supply of requisite documents. Moreover, the value of the truck also depreciated resulting in further loss to him. Thus, the amount awarded by National Commission is too meagre and deserves to be enhanced. [Para 32] [1198-E-F] 3.2. The conduct, behaviour and attitude of the respondents, throughout, has been highly reprehensible. When the bank had issued a Fard Nilami and respondents were entrusted with the job of auction then the said auction should have been implemented fully in letter and spirit. Once the highest bid of the appellant was knocked down in his favour, pursuant thereto, he had deposited the requisite amounts, then as a necessary consequence thereof he should have been delivered the truck immediately along with the necessary documents. For the reasons best known to the respondents they had not only delayed delivery of the truck but had also, despite the efforts made by the appellant, not handed over the papers of the truck to him for long number of years. Any explanation offered during the course of the arguments is not acceptable, which certainly shows their malafide intentions. [Para 34] [1199-B-D] 3.3. Even assuming for a moment that bank had not delivered the papers of the truck to the respondents then it was the duty of the respondents to have insisted the bank for delivery of the papers which they had failed to do. Thus, in any case, there cannot be any escape of the respondents from shaking off the liability fastened on them by the National Commission. [Para 35] [1199-E] 3.4. Taking the totality of the situation as it exists, a total amount of Rs. 1,00,000/- payable by respondents jointly or severally to the appellant would subserve the justice. [Para 36] [1199-F] 4. Even though the Act specifically does not authorise to grant interest but in appropriate cases, grant of interest on the facts and circumstances of the case is permissible. In this case also, keeping the circumstances under which appellant was made to run from pillar to post, to get the documents of the truck from the respondents, ends of justice would be met if interest at the rate of 6% p.a. from the date of the original application till actual payment of the aforesaid enhanced awarded amount is made by the respondents. [Paras 37 and 38] [1199-G-H; 1200-A-B] CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 5165 of 2009. From the Judgment & Order dated 18.5.2005 of the National Consumer Disputes Redressal Commission, New Delhi in Revision Petition No. 929 of 2003. WITH C.A. No. 5166 of 2009. R.K. Kapoor, Gunjan Sinha, H. Pant, Anis Ahmed Khan for the Appellants. R.K. Gupta, Manoj Dwivedi, Gunnam Venkateswara Rao for the Respondents.

REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 5165 OF 2009 [Arising out of S.L.P.(C)No.20515 of 2005] Madan Kumar Singh (D) Thr. LR. ….Appellant Versus Distt. Magistrate, Sultanpur & Ors. …Respondents WITH CIVIL APPEAL NO. 5166 OF 2009 [Arising out of S.L.P.(C)No.11210 of 2006] J U D G M E … Continue reading

In the withdrawn election petition, no third party can be substituted under sec.110(3) of RPActIn the instant case, the complaint in the Election Petition was that the nomination paper of the Election Petitioner had been wrongly rejected by the Returning Officer. The Respondent herein, who had been substituted in place of Shri Yadavrao, did not have the same interest as Shri Yadavrao and, accordingly, the High Court, in our view, misconstrued the provisions of Section 110(3)(c) of the 1951 Act in applying the conditions literally, without even 1satisfying itself that the order fit in the facts of the case. 16. We are satisfied that the expression “a person who might himself have been a Petitioner”, (emphasis supplied) would not apply in a case like the present one, in which the right to be exercised does not concern the actions of the person elected on the grounds, as contemplated in Sections 100(1) and 101 of the 1951 Act, which provide for the grounds for declaring the elections to be void. The grievance of the original Election Petitioner was not against the elected candidate, but against the action of Returning Officer in rejecting his nomination paper. Once the Election Petitioner decided not to pursue the matter, the Election Petition could not have been continued by a person, as contemplated in Section 110(3)(c) of the aforesaid Act. 117. We, therefore, have no hesitation in setting aside the judgment and order dated 28 th November, 2011, passed by the Aurangabad Bench of the Bombay High Court in Election Petition No.5 of 2009 and Civil Application No.35 of 2010. 18. The appeal is, accordingly, allowed, but, there will be no order as to costs.

REPORTABL E IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.3373 OF 2012 (Arising out of SLP(C)No.5776 of 2012) CHAUGULE … APPELLANT Vs. BHAGWAT … RESPONDENT J U D G M E N T ALTAMAS KABIR, J. 1. Leave granted. 2. The Appellant herein was elected to the Maharashtra Legislative Assembly from … Continue reading

an order of remand passed under Order 41 Rule 23A is amenable to appeal under Order 43 Rule 1 (u) of the Code. The High Court relied upon a decision of this Court in the case Narayanan Vs. Kumaran & Ors. (2004) 4 SCC 26 in holding that Civil Miscellaneous Appeal from the order of remand was not maintainable. The High Court was clearly in error. What has been held by this Court in Narayanan is that an appeal under Order 43 Rule 1 Clause (u) should be heard only on the ground enumerated in Section 100 of the Code. In other words, the constraints of Section 100 continue to be attached to an appeal under Order 43 Rule 1(u). The appeal under Order 43 Rule 1(u) can only be heard on the grounds a second appeal is heard under Section 100. There is a difference between maintainability of an appeal and the scope of hearing of an appeal. The High Court failed to keep in view this distinction and wrongly applied the case of Narayanan in holding that miscellaneous appeal preferred by the appellant was not maintainable. The appeals are accordingly allowed. The impugned order of the High Court is set aside.Page 7 7 The C.M.A. No. 1227 of 2002 titled as Jagannathan and Others Vs. Raju Sigamani is restored to the file of the Madras High Court, Madurai Bench for hearing and disposal in accordance with law. No order as to costs.

Page 1 1 REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL Nos. 3347-3348 OF 2012 ARISING OUT OF Special Leave to Appeal (Civil) No(s).19439-19440/2010 JEGANNATHAN APPELLANT VERSUS RAJU SIGAMANI & ANR. RESPONDENTS JUDGMENT R.M. LODHA, J. Delay condoned. Leave granted. The appellant herein is plaintiff No. 2. He, along with two others, … Continue reading

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