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[No.80]
March 20, 2004 |
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International Legal News
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Cases
Source:
Westlawinternational.com
The statutory presumption that a cheque
is issued with intent to defraud when a cheque is drawn on a bank in which the
maker or drawer has no account was applicable to a defendant who wrote bad
cheques on bank accounts that were closed. The term "no account"
included a bank account that had been closed as that term was used in the
Virginia statute providing that it shall be presumed that a cheque was issued
with intent to defraud when the cheque is drawn on a bank in which the maker or
drawer has "no account."
Sykes v. Com.
An internal investigation document
sought by a federal prisoner, allegedly used by the Secret Service to analyze
and profile factual information concerning individuals "having a direction
of interest toward a Secret Service protectee," was subject to the Freedom
of Information Act (FOIA) exemption for documents related to an agency's
internal personnel rules and practices. The document could be used to gain
insight into the methods and criteria utilized to identify and investigate
persons of interest, and could alter such individuals' behavior to avoid
detection.
Dorsett v. U.S. Dept. of Treasury
The state of Virginia, which by statute
precluded post-conviction review of a state prisoner's claims that he was
mentally retarded and that he was incompetent to be executed, would be required
to show cause why it should not bear the cost and expenses of the prisoner's
federal habeas proceedings in which he raised for plenary review the claims that
were barred in state court. These costs would include but not be limited to
reimbursement for the court's appointed expert. The proper balance and
distribution of authority in a federal system is not a trivial matter or a
matter of passing importance. The structure of government, like the Bill of
Rights, establishes limitations on the exercise the power. This balance
requires, however, the states to apply the United States Constitution no matter
how inconvenient it might be. Here, Virginia precluded post-conviction review of
two viable, fundamentally important and basic constitutional questions forcing
plenary review by a federal habeas court. Under the circumstances, it was
appropriate to require the state to show cause why it should not bear the cost
and expense of the federal proceedings.
Walton v. Johnson
Publicity surrounding the O.J. Simpson
murder trial, in which the verdict was announced two days before the jury in a
drug trafficking conspiracy prosecution in Connecticut found the defendant
guilty, did not deprive the defendant in the drug case of an impartial jury. The
defendant in the drug case maintained, on his motion to vacate his conviction
and sentence, that he received ineffective assistance of counsel at his trial
because his attorney did not request that the court question the white jurors as
to their feelings about blacks following the Simpson trial. He asserted that the
Simpson verdict created a high potential for unconscious racism which would
likely have an effect on the jury's deliberations. However, the media coverage
of the Simpson trial had nothing to do with the issues in the defendant's drug
case, let alone his guilt or innocence. This defendant was convicted of
possession with intent to sell narcotics, a charge completely unrelated to the
murder charges in the Simpson trial. The post conviction relief court was
therefore satisfied that the jurors retained the requisite impartiality despite
the verdict announced in the Simpson trial.
Johnson v. U.S.
An award of $15,492 per month in interim
support to the wife in divorce proceedings was not unreasonable in light of the
wife's need for support and the husband's ability to pay, notwithstanding that
the wife's final order for support was only $3,638 per month. The husband was a
physician who had earned a substantial six-figure income prior to his ankle
injury, he stated he would voluntarily stop performing surgeries in order to
allow their house to go into foreclosure, and he made significant charitable
contributions during the pendency of the divorce, which indicated that his
partial disability from his ankle problems did not diminish his earing capacity
to the degree he claimed. The superior court also made sufficient factual
findings regarding the wife's needs.
Beal v. Beal
Absent evidence of an actual exchange of
confidential information, no conflict existed to disqualify a physician employed
in the same medical practice as a patient's medical expert from testifying on
behalf of the defendant surgeon without the patient's consent. The court was
required to determine whether the patient, who sought to exclude the witness,
produced evidence that any substantive information about the case had been
exchanged between the affiliated experts. This was a matter of first impression.
Wright v. Kaye
Sex crimes that a sex offender admitted
having committed, in return for a promise that he would not be prosecuted for
them, could form the basis for an expert's opinion that the offender might be a
sexually violent person within the meaning of the Sexually Violent Persons (SVP)
Act. Although the offender could not be prosecuted criminally for any offenses
to which he confessed in return for the promise of immunity, proceedings under
the SVP Act were not criminal prosecutions but civil commitment proceedings
whose aim was not to punish but to provide sex offender treatment while
simultaneously protecting the public.
In re Commitment of Conn
Passengers aboard an aircraft which
suffered an accident while landing could not recover from the airline, under the
Warsaw Convention, for their alleged mental injuries, since those injuries were
not caused by any bodily injury. The Court's interpretation of Article 17 of the
Warsaw Convention, which found that airline liability for mental injuries of
passengers was limited to those cases in which the mental injuries resulted from
a bodily injury, was supported by the decisions of other American courts,
interpretations of French law, the negotiation history of the Convention, the
purpose of the Convention, and the judicial decisions of other signatory
countries.
Ehrlich v. American Airlines, Inc.
A motorist's medical bills were relevant
to prove the non-monetary elements of a compensatory damages claim, such as pain
and suffering, and to establish the inconvenience that the motorist experienced
because of a driver's negligence, even though those bills had been discharged in
bankruptcy. The bills tended to establish the probability of the motorist's
claim that she experienced pain and suffering as a result of the automobile
accident. Excluding this relevant evidence was reversible error, since the jury
could have viewed such evidence as persuasive and objective corroboration of the
motorist's subjective complaints. This was a matter of first impression.
Barkley v. Wallace
News
Oregon's attorney general
advised county officials that issuing same-sex marriage licenses is against
state law but added that the law in question may be unconstitutional. In this
wake, officials have been urged in Multnomah County to stop issuing marriage
licenses to same-sex couples until the state Supreme Court can decide whether
laws limiting matrimony to heterosexuals pass constitutional muster. The
legality of more than 1,000 licenses already issued to same-sex couples by
Multnomah County remains in question which will ultimately be determined by what
the Supreme Court decides.
A jury has convicted a man of
raping a 9-month-old girl and leaving her for dead in the woods rejecting the
accused person, Randolph Standifer's insanity defense and found him guilty of
kidnapping, sexual battery of a child younger than 12 and attempted murder in
the second degree. Standifer, 23, will be sentenced to life in prison, the only
penalty allowed by law when a child younger than 12 is raped. Although jurors
believe Standifer was mentally ill, but they also took into consideration that
he knew it was wrong, because he covered it up.
The Justice Department has said
that technology companies should be required to ensure that law enforcement
agencies can install wiretaps on Internet traffic and new generations of digital
communications. The push would effectively expand the scope of the
Communications Assistance for Law Enforcement Act, a 1994 law that requires the
telecommunications industry to build into its products tools that U.S.
investigators can use to eavesdrop on conversations with a court order.
In a recent ruling, the Court
has said that the President of Sierra Leone's UN-backed war crimes court will
not sit in trials of three rebel leaders charged with atrocities. The decision
was based on claims that Geoffrey Robertson, a senior British lawyer, was
biased. Mr Robertson accused the Revolutionary United Front (RUF) of brutal acts
in a book he wrote before his appointment. The decision was taken after lawyers
for the three RUF commanders filed an application for the removal of Mr
Robertson on the grounds of his alleged bias.
Uganda has imposed a smoking
ban in all public places. Smoking in restaurants, educational institutions and
bars would now be an offence and offenders will be fined between $10 and $50 if
arrested by policemen who have been instructed to enforce the law. However,
since ban has not been gazetted so it remains unclear quite how rigorously it
will be enforced. The decision is bound to raise concern among tobacco farmers
in North-West Uganda.
China's parliament has agreed
landmark changes to the constitution that will protect private property for the
first time since the 1949 revolution. With this vote which is to amend the 1982
constitution, China is abandoning one of the key pillars of communism.
Entrepreneurs and businessmen had lobbied for the constitution to enshrine the
protection of private property. The amendment is expected to help stop state
officials from requisitioning property and private possessions and also see the
words "martial law" removed from the document and replaced with
"state of emergency".
Media baron Conrad Black is to
fight a US court ruling that blocked a deal he struck to sell the UK's Daily
Telegraph newspaper and other titles. Lord Black, who is engaged in a long
running legal battle with the Hollinger, wants to sell his controlling share in
Hollinger International to Scottish twins Frederick and David Barclay. Black
resigned as chief executive of Hollinger International in November last after an
internal inquiry revealed he received millions of dollars in disputed payments.
Gov. Rick Perry has commuted
the death sentence of a Houston killer with an IQ estimated at 63, a level 7
degrees below of a retarded person. The move is in consonance with a 2002
Supreme Court decision barring the execution of retarded inmates. It was the
first time Perry, a Republican who has presided over 81 executions since taking
office in 2000, has commuted a death sentence. The killer will serve a life
sentence for the 1990 murder of James Michael Wilcox, a transient living out of
his truck, who was shot to death after crossing paths with the killer and an
accomplice as they fled a clothing-store robbery.
A judge refused to order a new
trial over a $11.9 billion verdict Alabama won against Exxon Mobil, and scolded
the oil company for not providing a document she considered vital to the case.
She also refused to override the verdict, returned by Montgomery Jury, to rule
in Exxon's favor. The jury had decided that Exxon Mobil cheated the state out of
royalties due from natural gas wells drilled in state-owned waters around Mobile
Bay, and it awarded $63.6 million in compensatory damages and $11.8 billion in
punitive damages. All that's left for her to decide, she said, is whether to
reduce or uphold $11.8 billion the jury awarded in punitive damages.
Authorities charged 28-year-old
Rowland with murder saying she exhibited "depraved indifference to human
life," according to court documents. Doctors said, Rowland was repeatedly
told by them that her unborn twins would likely die if she did not have a
Caesarean section but she refused and later had stillborn. The case could affect
abortion rights and open the door to the prosecution of mothers who smoke or
don't follow their obstetrician's diet.
A Manhattan judge ordered the
New York Stock Exchange to remove security blockades and end vehicle searches on
the streets around its building further stating that only the Police Department
is authorized to close streets and therefore the NYSE's actions were
"unlawful." The judge said he also questioned whether the police could
delegate that authority. The Judge said if the city wants to delegate authority
to the NYSE to establish a secure zone around the stock exchange, it should
comply with applicable law.
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SEBI
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Secondary
Market Division
Circular No. SEBI/DNPD/Cir-21/2004/03/09
Dated 09.03.2004 : The SEBI Advisory Committee on Derivatives and Market Risk
Management (RMG), in its meeting held on June 26, 2003, recommended FII position
limits for exchange traded interest rate derivative contracts. The SEBI Board,
in its meeting held on July 24, 2003, approved the recommendations of the RMG
and mandated that these measures could be implemented by SEBI at an appropriate
time. RBI also permitted the FIIs to participate in exchange traded interest
rate derivative contracts and specified position limits for FII transactions in
exchange traded interest rate derivatives. Further, RBI has specified that FIIs
& NRIs may trade in all exchange traded derivative contracts approved by
SEBI from time to time subject to the limits prescribed by SEBI. Accordingly the
position limits for FIIs, their sub-accounts and NRIs in exchange traded
interest rate derivative contracts has been prescribed by the SEBI.
Circular No. MIRSD/DPS-2/DT/Cir-02/2004
Dated 09.03.2004 : SEBI has decided that Debenture Trustees would be allowed to
associate with privately placed unlisted debt issues. The debenture trustees
would be responsible for such issues and are accountable. It is considered
necessary to monitor the exposure of SEBI registered debenture trustees in such
unlisted debt issues. Accordingly, it has been decided to elicit relevant
additional information in this regard in the periodical report submitted by
debenture trustees.
In view of the above decision,
SEBI Circular No. 2(1999-2000) dated April 19, 1999 has been partially amended
and certain additional information, in tabular form, viz. Name of the Issuer,
Issue Size, Secured / Unsecured, Date of allotment & No. of allottees of the
security has been incorporated as the last item in the report.
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Department of Company Affairs
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Notification No. GSR189(E)
Dated 12.03.2004 : In rule 2 of the Companies (Acceptance of Deposits) Rules,
1975, in clause (b), which defines the term "deposit", for sub-clause
(ix), the following sub-clause has been substituted, namely:-
" (ix) any amount received
from a person who, at the time of the receipt of the amount, was a director of
the company or any amount received from a relative of a director or its member
by a private company :
Provided that the director,
relative of a director or member, as the case may be, from whom money is
received, furnishes to the company at the time of giving the money, a
declaration in writing to the effect that the amount is not being given out of
funds acquired by him by borrowing or accepting from others."
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CBEC Excise Tariff
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Circular No. 780/13/2004/CX
Dated 12.03.2004 : To determine the excisability of the Sugar Syrup, the
attention was diverted to a ruling of Hon'ble Supreme Court in which it was laid
that for determining the excsiability of a product, the 'test of marketability'
is the relevant criterion. On consideration of this it has been clarified that
if the sugar syrup is marketable as such, without any reference to percentage of
sugar concentration, then the same is excisable when taken for captive
consumption or removed as such.
Circular No. 777/10/2004-CX
Dated 03.03.2004 : Ministry of Commerce and Industry through its amending
notification vide No. 1086(E) dated 11.11.99 had exempted all teas from the
payment of cess on which cess has already been paid at an earlier stage.
Therefore it has been clarified that collection of duty of cess may be
regulation after taking into consideration the clarification provided by the notification issued by
ministry of Commerce and Industry.
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Service Tax
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Circular No. 77/7/2004 Dated
10.03.2004 : On the ambiguity in the provisions of Rule 3(5) of the Service Tax
Credit Rules, 2002, which reads that, "in case the service provider, opts
not to maintain separate accounts of input service meant for consumption in
relation to rendering of such output service which are chargeable to service tax
as well as exempted services or non-taxable services, he shall be allowed to
utilize service tax credit for payment of service tax on any output service only
to the extent of an amount not exceeding thirty five percent of the amount of
service tax payable on such output service", it has been clarified that
input service tax credit can be utilized only to the extent of 35% of the total
service tax payable on all the taxable output services.
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Department of Economic Affairs
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Notification No. GSR178(E)
Dated 09.03.2004 : The Central Government has framed & issued the Securities
Appellate Tribunal (Salaries, Allowance and other Terms and Conditions of
Presiding Officer and Other Members) Rules, 2003. These rules has been brought
into force from 09.03.2004. The rules describe the provisions regarding Terms
and conditions of Service, Salary, Pension and Provident Fund, Travelling
Allowance and other facilities to the Presiding officer & other members of
the Securities Appellate Tribunal.
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RBI
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Circular No. A.P.(DIR Series)
Circular No. 79 Dated 15.03.2004 : Exim Bank has concluded an agreement with
Central Bank of Djibouti, Djibouti on July 24, 2003 making available to the
latter, a Line of Credit (LOC) upto an aggregate sum of USD 10 Million. The
Credit Agreement has become effective from January 14, 2004 and is available for
financing export from India of Category 'A' and Category 'B' goods and services
as per Memorandum PEM and any other item including raw materials and commodities
that may be agreed upon between Exim Bank and Central Bank of Djibouti to buyers
in Djibouti. Accordingly, no agency commission shall be payable in respect of
exports financed under the above LOC, Reserve Bank may consider, on merit,
requests for payment of commission up to a maximum extent of 5 per cent of the
f.o.b./c&f/c.i.f. value in respect of goods exported and which require after
sales service. In such cases, commission will have to be paid in Djibouti only
by deduction from the invoice of the relevant shipment. The reimbursable amount
by the Exim Bank to the negotiating bank will be 90 per cent of the
f.o.b./c&f/c.i.f. value minus the commission paid. Approval for the payment
of commission should be obtained from the Reserve Bank before the relevant
shipment is effected.
Circular No. A.P.(DIR Series)
Circular No. 78 Dated 13.03.2004 : The relevance of the FIRP system has been
reviewed in consultation with FEDAI and it has been decided to withdraw the
FIRPS instrument as it is no longer used by banks in the wake of electronic
credits and online transfer of funds.
Notification No. IDMD.PDRS.No.
03 /03.64.00/2003-04 Dated 08.03.2004 : In order to contain the risks arising
out of investment in non-Government securities by the Primary Dealers (PDs), the
investment guidelines have been finalized in consultation with the Primary
Dealers Association of India (PDAI). These guidelines come into force with
immediate effect i.e. from 08.03.2004.
Notification No. RPCD. SP.BC.No
70/09.01.01/2003-04 Dated 16.03.2004 : Government of India have finalised the
credit mobilisation target for the year 2004-05 under SGSY. However, if needed,
the States/UTs in consultation with their respective State Level Banker's
Committee/DCC may enhance the targets, as may deem necessary.
Notification No.
UBD.BPD.MC.No.9/13.01.00/2003-04 Dated 16.03.2004 : The RBI has been issuing
various instructions on the matter of "Interest Rates on Rupee Deposits'
from time to time. In order to enable the primary (urban) co-operative banks to
have all the currently operative instructions on the subject at once place, a
Master Circular has been prepared and the same has been issued by the RBI.
Notification No. DGBA.GAD.
No.H-767/42.01.034/2003-04 Dated 09.03.2004 : In view of the difficulties faced
by the banks as well as the public at large in regard to ITROs, RBI has been
pursuing with the Central Government for alternative system for tax refunds and
now Government has since taken a decision to implement ECS credit for direct tax
refunds. A notification in this regard is expected to be issued by the
Government shortly.
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DGFT
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Circular No. 29
(RE-2003)/2002-2007 Dated 09.03.2004 : The matter of import of consumables,
office equipments and professional equipments under Duty Free Entitlement
Certificate Scheme and other relevant issues has been discussed and the
following issues have been clarified related to the Duty Free Entitlement
Certificate for service providers:-
i) Import of consumables other
than milk and dairy products, vegetable, horticulture and agriculture products
would be permitted under the scheme. However, beverages, spirits and vinegar
covered under Chapter 22 of ITC(HS) Classification or seafood items ( both
processed and semi processed) are permitted to be imported.
ii) The scheme will not be
available for 100% EOUs and units operating under SEZ, STPI and EHTP Schemes.
iii) Payment received from
export earners foreign currency (EEFC) account will not be counted for the
scheme.
iv) Goods allowed to be
imported under this scheme shall have nexus with the services rendered.
v) Policy Circular No.4 dated
14th May, 2003 stands withdrawn.
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Department of
Telecommunications
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Notification No. 301-3/2004-Eco
Dated 10.03.2004 : The amendment has been by substitution of Clause 2 of Section
II, of The Telecommunication (Broadcasting and Cable) Services Tariff Order,
2004, which relates to Tariff. The substituting clause read as under :
"(a) Cable subscribers to
cable operator;
(b) Cable operators to Multi
Service Operators/Broadcasters (including their authorised distribution
agencies); and
(c) Multi Service Operators to
Broadcasters (including their authorised distribution agencies)
prevalent as on 26th December
2003 shall be the ceiling until final determination by Telecom Regulatory
Authority of India on the various issues concerning these charges."
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Ministry of Human Resources and Development
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Notification No. GSR184(E)
Dated 10.03.2004 : The Central Government has made the UGC (Returns of
Information by University Grants Commission) Rules, 2004. the rules has been
made effective from 10.03.2004. The rules require the UGC to file returns
containing information about universities defined under section 2 (f) of the UGC
Act. These returns to be furnished by UGC on or before 31st January & 31st
July every year.
Notification No. GSR183(E)
Dated 10.03.2004 : The Central Government has made the rules namely University
Grants Commission (Inspection of Universities) Rules, 2004 which have been in
force from 10.03.2004. The rules empowers the UGC to appoint a committee to
examine and report on the financial needs of a University or its standards of
teaching, examination and research or both. The rules also set out the procedure
of inspection of universities to be carried out UGC.
Notification No. GSR182(E)
Dated 10.03.2004 : The Central Government has framed & issued the University
Grants Commission (Returns of Information by Universities) Rules, 2004 and made
them effective from 10.03.2004. The rules make mandatory for every university,
on or before the date specified by the University Grants commission every year
in this behalf, to furnish the various returns and information to the Commission.
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Ministry of Labour
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Notification No. SO304(E) Dated
04.03.2004 : Amendment has been made in the Employees Provident Fund Scheme,
1952. According to amendment an option to the member of the scheme has been
provided to withdraw upto 90 per cent of the amount standing at his credit at
any time after attaining the age of 55 years. But the amount so withdrawn should
be transferred to the Life Insurance Corporation of India for investment in
Varishtha Pension Bima Yojana.
The amendment has been brought
into effect from 04.03.2004 and by insertion of paragraph 68NNN after paragraph
68NN of the scheme. the newly inserted paragraph read as under:
"68NNN. Option for
withdrawal at the age of 55 years for investment in Varishtha Pension Bima
Yojana--
The Commissioner, or where so
authorized by the Commissioner, any officer subordinate to him, may, on an
application from a member in such form as may be prescribed, permit withdrawal
of upto 90 per cent of the amount standing at his credit at any time after
attaining the age of 55 years by the member, to be transferred to the Life
Insurance Corporation of India for investment in Varishtha Pension Bima Yojana."
Notification No. GSR172(E)
Dated 04.03.2004 : Amendments have been made in the Employees' State Insurance
(Central) Rules, 1950. According to the amendments:
(i) in rule 50, the wage limit
for coverage of an employee under Employees' State Insurance Act, 1948 has been
increased from six thousand and five hundred rupees a month to 'seven thousand
and five hundred a month.
(ii) in rule 52, Exemption
limit, which is taken as the average daily wages during a wage period, for
payment of employees' contribution has been enhanced from rupees forty to ruppes
fifty.
(iii) in rule 54, the standard
benefit rate to the group of employees has been amended.
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Press Information Bureau
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Dated 09.03.2004 : The National
Pharmaceutical Pricing Authority has revised / fixed the prices of 97
formulation packs as on 4th March, 2004. Out of these, the Ceiling Prices in
respect of 77 formulation packs have been fixed under DPCO, 1995 based on
Glipizide three packs vide S.O. No. 291(E), Spironolactone three packs vide S.O.
No. 292(E), Carbamazepine sixteen packs vide S.O. No. 293(E) & 294(E),
Doxycycline thirty eight packs vide S.O. No. 295(E), 296(E), 297(E), 298(E)
& 299(E) and Vitamins based formulations seventeen packs vide S.O. No.
300(E), 301(E), 302(E) & 303(E), dated 4th March, 2004. The prices of 20
Non-Ceiling Packs based on the bulk drug Insulin, Vitamins, Combination of
Cefotaxine Sodium and Sulbactum Sodium, Aspirin and PCMX have also been fixed by
the NPPA. While fixing these prices, NPPA has also considered the additional
packing material cost towards hologram labeling / ROPP Caps for prevention of
spurious drugs.
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Supreme Court |
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The issue before the
Hon'ble Apex Court was whether taking out Tandav dance in public
carrying skull, knife, live snake, trident etc. is an essential part of
Ananda Margi faith. Apex Court came to the conclusion that Tandav dance
in public is not an essential part of religious rite of Ananda Margi
faith and they cannot perform Tandav dance carrying weapons and human
skull in public places and that police could impose restrictions on
such procession.
A three-judge Bench,
by a majority of two to one, held that ‘the test to determine whether
a part or practice is essential to the religion is to find out whether
the nature of religion will be changed without that part or practice.
If taking away of that part or practice could result in a fundamental
change in the character of that religion or in its belief, then such
part could be treated as an essential or integral part.’ The bench
agreed with the 1983 judgment of the Apex Court that had decided that
Tandava dance in public is not an essential part of the religious rites
of Anand Margi faith. This was primarily based on the fact that “the
order itself is of recent origin and the practice of dance is still
more recent. (The Anand Marg order was founded in 1955 but Tandav was
introduced s a religious rite in and around 1966).
However, the minority
judgment said that the Ananda Margi is a religious denomination and as
such entitled to the protection under Article 25 and 26(b) of the
Constitution for their beliefs and practices including Tandava dance in
a procession or public place. Ananda Margis have right to take a
procession in public places after obtaining necessary permissions from
the concerned authorities and they are also entitled to carry Trishul
or Trident, conch or skull so long as such procession is peaceful and
does not offend the religious sentiments of other people who equally
enjoy fundamental right to exercise their religion freedom.
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