//
archives

pratap singh

This tag is associated with 3 posts

Sec.106 of Evidence Act – Non- explanation of husband how his wife was died when both together in a inside locked room – though all relatives of Accused turned hostile – burden never shifts as the prosecution proved about locking of door with his wife in side a room for whole day – where the wife found dead Apex court held and relied on Section 101 lays down the general rule that in a criminal case the burden of proof is on the prosecution and Section 106 is certainly not intended to relieve it of that duty. On the contrary, it is designed to meet certain exceptional cases in which it would be impossible, or at any rate disproportionately difficult, for the prosecution to establish facts which are “especially” within the knowledge of the accused and which he could prove without difficulty or inconvenience. The word “especially” stresses that. It means facts that are pre-eminently or exceptionally within his knowledge. = State of Rajasthan ….Appellant versus Thakur Singh ….Respondent = 2014 – June. Part -http://judis.nic.in/supremecourt/filename=41708

Sec.106 of Evidence Act – Non- explanation of husband how his wife was died when both together in a inside locked room – though all relatives of Accused turned hostile – burden never shifts as the prosecution proved about locking of door with his wife in side a room for whole day – where the … Continue reading

Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short ‘the Act’= Even though the only independent witness Rameshwar (PW-3) who stood as a witness for recovery has not supported the prosecution and declared hostile, however, as rightly pointed out by the state counsel, he did not deny the existence of his signature on Ex.PA. ; Regarding the delay in sending the contraband for examination by the FSL, it was PW-2, who carried the samples from the Police Station to FSL at Madhuban but he was not asked any question in the cross examination, though opportunity was given to the defence. Even otherwise, FSL report Ex. P1 would show that the sample was received at the FSL in tact with the seal which tallied with the specimen seals forwarded. Accordingly, the said objection is liable to the rejected. ; Nothing has been explained or denied by the appellant in his Section 313 statement nor examined anyone as a defence witness. – once the appellant was asked by the court that he was carrying a tin in his hand and opium was recovered therefrom, the aspect of conscious possession of the contraband is presumed and in the absence of any contra evidence, there is no reason to disbelieve the prosecution version. = In the light of the materials placed by the prosecution in the form of oral and documentary evidence and in view of Section 54 of the Act and in the absence of any evidence from the accused discharging the presumption as to the possession of the contraband, we are in entire agreement with the conclusion arrived at by the trial Court and the High Court. (13) As regards the reduction of sentence, it is not in dispute that possession of 3 ½ kgs of opium involves commercial quantity and if that is so, in terms of sub-section (b) of Section 18, imprisonment shall not be less than 10 years. Admittedly, there is no enabling provision to the court for reduction of sentence by giving special or adequate reasons in the statute particularly in Section 18. Accordingly, we reject the request of the learned counsel for the appellant. (14) In the light of the above discussion, we are in entire agreement with the conclusion arrived at by the courts below. Consequently, the appeal fails and the same is dismissed.

Page 1 REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 1564 OF 2008 Mohinder …. Appellant(s) Versus State of Haryana …. Respondent(s) J U D G M E N T P.Sathasivam,J. 1) This appeal has been filed against the final judgment and order dated 04.07.2007 passed by the High Court of … Continue reading

Indian Partnership Act, 1932; Section 32: Partnership firm-Liabilities of retiring partners against third party-Held: In the absence of an agreement between third party, new firm and retiring partners discharging retiring partners from liabilities or notice thereof by the retiring partners, their liabilities to third party continue. Creditor adopting reconstituted firm/new firm as debtor-Rights against the old firm-Held: Such an act of adoption of new firm as debtor does not deprive the creditor enforcing his rights against the old firm particularly when there existed no fresh agreement between him and the new firm-In the facts and circumstances of the case priori-assumption that creditor entered into an agreement to discharge retiring partner from liability does not follow. Words and Phrases: `Priori-assumption’-Meaning and applicability of Plaintiff-appellant, a Bank had filed two suits against the respondent- firms for recovery of certain amount borrowed by the firm from the Bank with interest. The firm was dissolved and taken over by one of the partners. Trial Court decreed the suit against the firm and the owner of the new firm. Appellant-Bank filed appeals praying for decree against all the partners of the old firm. The High Court affirmed the decree of the trial Court. Hence the present appeals. It was contended for the appellant-Bank that the loan was availed of by all the partners after jointly executing the requisite documents for getting the loan amount; that dissolution of the firm would not affect the liabilities of partners as inter se agreement between them was not binding on the appellant-bank; and that in view of provisions in the Partnership Act the retiring partners of the firm could not escape from their liabilities against the third party. On behalf of the respondents/partners it was submitted that since notice of dissolution of the firm was given to the appellant-Bank, retiring partners should not be held liable to discharge liabilities of the firm. =Allowing the appeals, the Court HELD: 1.1. Under sub-section (2) of Section 32 of the Indian Partnership Act the liability of the retiring partner as against third party would be discharged only if there is an agreement made by the retiring partner, with the third party, and the partners of the reconstituted firm. Of course, an agreement could be implied by the course of dealing between such third party and the reconstituted firm, after retirement of a partner. In the instant case, there was no agreement between the appellant-Bank and respondent nos.2 and 3 as regards their liability in respect of the dissolved firm. There is also no evidence to show that there was an implied contract between the appellant and respondent no.4, owner of the reconstituted firm, who allegedly agreed to discharge the liabilities of respondent nos.2 and 3. It is also pertinent to note that there was no public notice under sub-Section (3) of Section 32 of the Indian Partnership Act by respondent nos. 2 and 3. Even if there was a public notice, it may not alter the position as the alleged liabilities of respondent nos. 2 and 3 were incurred by them prior to the dissolution of the firm. [217-G, H; 218-A, B] Thummala Rama Rao and Ors v. Chodagam Venkateswara Rao and Ors., AIR (1963) A.P. 154, distinguished. Lindley and Banks on Partnership (Sixth Edition) page 358, referred to. 1.2. There is no priori presumption to the effect that the creditors of a firm do on the retirement of a partner, enter into an agreement to discharge him from liability. An adoption by the creditor of the new firm as his debtor does not by any means necessarily deprive him of his rights against the old firm especially when the creditor is not a party to the arrangement and then there is no fresh agreement between the creditor and the newly constituted firm. After the creditor has taken a new security for a debt from a continuing partner, it may be a strong evidence of an intention to look only the continuing partner for the payment due from the firm, it has long been recognized that partnership is not a species of joint tendency and that, in the absence of some contrary agreement, there is no survivorship as between partners, at least so far as it concerns their beneficial interests in the partnership assets. Having due regard to these principles, the High Court erred in confirming the judgment passed by the trial court and the plaintiff appellant had every right to proceed against all the defendants in the suit. Hence, the impugned decree is modified to the extent that there shall be a decree against all the respondents in both the suits. [219-D-G] CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1337 of 1995. From the Judgment and Order dated 7.3.1994 of the Karnataka High Court in R.F.A. No. 631 of 1987. WITH C.A. No. 3765 of 1995. =2003 AIR 1311, 2003(1 )Suppl.SCR213 , 2003(6 )SCC265 , 2003(4 )SCALE648 , 2003(4 )JT578

CASE NO.: Appeal (crl.) 11 of 2000 PETITIONER: Karamjit Singh RESPONDENT: State (Delhi Administration) DATE OF JUDGMENT: 26/03/2003 BENCH: S. Rajendra Babu & G.P. Mathur JUDGMENT: JUDGMENT G.P. Mathur, J. Karamjit Singh has preferred this appeal against the judgment and order dated 2.2.1996 of the Designated Judge, New Delhi in Sessions Case No.140 of 1991, … Continue reading

Blog Stats

  • 2,870,165 hits

ADVOCATE MMMOHAN

archieves

Enter your email address to subscribe to this blog and receive notifications of new posts by email.

Join 1,904 other followers

Follow advocatemmmohan on WordPress.com