SUPREME COURT

• CRIMINAL

Kumar Exports Vs. Sharma Carpets (Decided on 16.12.2008)

Dishonour of cheque - Insufficient fund - Respondent claimed that he had served statutory notice calling upon the appellant to make payment of the amount due but neither the appellant had replied the said notice nor made payment of the amount due - Respondent filed Criminal Complaint in the court of the Judicial Magistrate and prayed to convict the appellant under Section 138 of Negotiable Instruments Act, 1881 - Judicial Magistrate acquitted the appellant - On appeal by the respondent, High Court convicted the appellant under Section 138 of the Act - Whether offence punishable under Section 138 of the Act was made out against the appellant

In order to determine the question whether offence punishable under Section 138 of the Act is made out against the appellant, it will be necessary to examine the scope and ambit of presumptions to be raised as envisaged by the provisions of Sections 118 and 139 of the Act. Section 118 of the Act provides presumptions to be raised until the contrary is proved (i) as to consideration, (ii) as to date of instrument, (iii) as to time of acceptance, (iv) as to time of transfer, (v) as to order of indorsements, (vi) as to appropriate stamp and (vii) as to holder being a holder in due course. Section 139 of the Act provides that it shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in Section 138 for the discharge, in whole or in part, of any debt or other liability. Having regard to the scheme of the Code of Criminal Procedure, 1973 this Court is of the view that after finding the appellant guilty under Section 138 of the Act, the judicial discretion of imposing appropriate sentence could not have been abdicated by the High Court in favour of the Judicial Magistrate. Having found the appellant guilty under Section 138 of the Act it was the bounden duty of the High Court to impose appropriate sentence commensurate with the facts of the case. Therefore, we do not approve or accept the procedure adopted by the High Court. Be that as it may, in this case, we have found that reversal of acquittal itself was not justified. Appeal is allowed.

Harman Electronics (P) Ltd. and Anr.Vs. National Panasonic India Ltd. (Decided on 12.12.2008)

Dishonour of cheque - Cheque in question was given by the accused to the complainant in Chandigarh, and it was present to their banker at Chandigarh - Only notice was given by the complainant to the accused from Delhi - Same was served on the accused admittedly, at Chandigarh and that both the parties are carrying out their business also at Chandigarh - Whether sending of notice from Delhi itself would give rise to a cause of action for taking cognizance under the Negotiable Instruments Act

It is one thing to say that sending of a notice is one of the ingredients for maintaining the complaint but it is another thing to say that dishonour of a cheque by itself constitutes an offence. For the purpose of proving its case that the accused had committed an offence under Section 138 of the Negotiable Instruments Act, the ingredients thereof are required to be proved. Issuance of notice would not by itself give rise to a cause of action but communication of the notice would. Therefore, the place where an offence has been committed plays an important role. It is one thing to say that a presumption is raised that notice is served but it is another thing to say that service of notice may not be held to be of any significance or may be held to be wholly unnecessary. Indisputably all statutes deserve their strict application, but while doing so the cardinal principles therefore cannot be lost sight of. A Court derives a jurisdiction only when the cause of action arose within his jurisdiction. The same cannot be conferred by any act of omission or commission on the part of the accused. While issuance of a notice by the holder of a negotiable instrument is necessary, service thereof is also imperative. Only on a service of such notice and failure on the part of the accused to pay the demanded amount within a period of 15 days thereafter, commission of an completes. Appeal is allowed.

Puttaswamy Vs. State of Karnataka and Anr. (Decided on 11.12.2008)

Causing death by negligence - Grievous hurt - Appellant was convicted for an offence punishable under Sections 279 and 304A of the Indian Penal Code, 1860 for causing the death of a seven year old girl on account of his rash and negligent driving of his tractor - Whether the offence under Section 304A could at all be compounded since the same was not covered by the provisions of Section 320 of Indian Penal Code, 1860.

What emerges from all these decisions is that even if an offence is not compoundable within the scope of Section 320 of Code of Criminal Procedure the Court may, in view of the compromise arrived at between the parties, reduce the sentence imposed while maintaining the conviction. When an offence did not come within the ambit of Section 320 of Criminal Procedure Code but the proceedings taken on the basis thereof deserved to be terminated, a sentence could always be reduced while maintaining the conviction and in most cases the sentence was reduced to the period of the sentence already undergone. Where circumstances so warranted, even the sentence was altered which at times brought the proceedings within the scope of Section 320 of Criminal Procedure Code and the offence was allowed to be compounded. In the present case, the appellant has been convicted under Sections 279 and 304A of the Indian Penal Code and has been sentenced to undergo simple imprisonment for a period of 6 months and to pay a fine of Rs. 2,000/-. The sentence as far as conviction under Section 279 I.P.C. is concerned has been set aside by the High Court. What remains after the judgment of the High Court is the conviction under Sections 279 and 304A I.P.C. wherein the appellant was sentenced to undergo six months simple imprisonment along with a fine of Rs. 2,000/-. In our view, this is one of those cases where instead of confining the appellant in prison, the interest of justice will be better served if he is made to compensate the family of the deceased on account of the loss suffered by them. The appeal is disposed of.

Arun Bhakta @ Thulu Vs.State of West Bengal (Decided on 05.12.2008)

Murder - Appellant-Accused was convicted for offence punishable under Section 302 of the Indian Penal Code,1860 for killing the deceased - It was a case of circumstantial evidence the trial court referred to certain circumstances to find the accused guilty - Appellant preferred an appeal before the High Court - Appeal dismissed - Whether conviction could be based solely on circumstantial evidence

In State of U.P. v. Ashok Kumar Srivastava 1992 Crl.LJ 1104, it was pointed out that great care must be taken in evaluating circumstantial evidence and if the evidence relied on is reasonably capable of two inferences, the one in favour of the accused must be accepted. It was also pointed out that the circumstances relied upon must be found to have been fully established and the cumulative effect of all the facts so established must be consistent only with the hypothesis of guilt.

There is no doubt that conviction can be based solely on circumstantial evidence but it should be tested by the touch-stone of law relating to circumstantial evidence laid down by this Court as far back as in 1952.A reference may be made to a later decision in Sharad Birdhichand Sarda v. State of Maharashtra MANU/SC/0111/1984. Therein, while dealing with circumstantial evidence, it has been held that onus was on the prosecution to prove that the chain is complete and the infirmity of lacuna in prosecution cannot be cured by false defence or plea. The conditions precedent in the words of this Court, before conviction could be based on circumstantial evidence, must be fully established. They are,(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned must or should and not may be established; 2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;(3) the circumstances should be of a conclusive nature and tendency;(4) they should exclude every possible hypothesis except the one to be proved; and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.

In view of the diametrically opposite version as to whether the accused and the deceased were seen together in the house it would be unsafe to direct his conviction. The prosecution has failed to prove the accusations. That being so, the conviction of the appellant is set aside and he is acquitted of the charges. Since he is in custody let him be released forthwith unless required to be in custody in any other case. Appeal is allowed.

• Constitutional Law

Shanti Bhushan and Anr. Vs Union of India (Decided on 12.12.2008)

Appointment of Additional Judge as Permanent Judge - Petition filed as Public Interest Litagation sought restrain order sought against functioning as Judge of the Madras High Court - It was stated that required norms were not followed while appointing Respondent as a permanent Judge and such appointment was in violation of the law as declared by the Apex Court in Supreme Court Advocates-on-Record Association & Ors. v. Union of India

Releif sought though not accepted it was held that a person who is not suitable to be appointed as a permanent Judge on the ground of unsuitability due to adverse factors on account of mental and physical capacity, adverse materials relating to character and integrity and other relevant matters, which are so paramount and sacrosanct for the functioning as a Judge, should not be continued as an Additional Judge. Even when an additional Judge is appointed as a permanent Judge, he does not become immune from action, if circumstances so warrant. Whenever materials are brought to the notice of the Chief Justice of India about lack of mental and physical capacity, character and integrity, it is for him to adopt such modalities which according to him would be relevant for taking a decision in the matter.

• SALES TAX

A and G Projects and Technologies Ltd.Vs.State of Karnataka (Decided on 11.12.2008)

Sale or purchase of goods - Liability to tax - Inter-State trade or commerce - If the sales stood covered under Section 3(a) of Central Sales Tax Act, 1956( CST ACT 1956) and if they were not entitled to exemption under Section 6(2) of CST ACT 1956, whether the appellant could have been taxed by the Department by invoking the proviso to Section 9(1) of CST ACT, 1956

The object of Section 9(1) is two-fold. Firstly, it provides that the tax on inter-State sales under Section 3(a) shall be levied by Government of India and collected by the State Government from which the movement of goods commenced. Secondly, it specifies the Appropriate State competent to levy tax on second and subsequent sales made during the movement of goods from one State to another as also the authority, where such second and subsequent sales are exigible to tax. As state above, Section 6(2) of the CST ACT 1956 provides for subsequent sales to be exempt from tax on the conditions prescribed therein. However, if and where those conditions are not satisfied, even such subsequent sales would attract tax and only in such circumstances the proviso to Section 9(1) which specifies the State, which is competent to levy the tax, would come in. The proviso to Section 9(1) contemplates two situations, namely, (a) where such subsequent sale is made by a registered dealer and (b) where such subsequent sale is made by unregistered dealer. In respect of situation (a), the proviso to Section 9(1) prescribes that the Appropriate State competent to levy tax on such subsequent sale shall be the State from which the registered dealer obtains a declaration in C-Form whereas in the case falling in situation (b), it provides that the Appropriate State competent to levy the tax shall be the State from which such subsequent sale has been effected. However, the entire proviso to Section 9(1) applies only to "subsequent sales" covered by Section 3(b) and not to sales under Section 3(a) CST Act 1956.

Applying the above analyses to the facts of the case, the proviso to Section 9(1) of the CST ACT 1956 is not applicable to the facts of the present case. Once the said sales fall under Section 3(a) then under Section 9(1) the tax has got to be collected by the State of Tamil Nadu from which the movement of the goods commenced. The question of taxing such sales under the proviso to Section 9(1) of CST ACT, 1956 did not arise. For the aforestated reasons, we set aside the impugned judgment of the High Court and accordingly allow the civil appeal filed by the appellant with no order as to costs

• TENANCY

Jarnail Singh Vs.Ramesh Kumar (Decided on 08.12.2008)

Decree for eviction -Determination of rate of rent - Rate of rent in respect of the shop room was in occupation of the tenant/appellant for more than 20 years, paying at the rate of Rs. 250 per month to the landlord/respondent - On appeal by the landlord/respondent, High Court directed the tenant/appellant to pay at the rate of Rs. 3000 per month till such determination was made - Whether the rate of rent would be at the rate of Rs. 250 per month or Rs. 3000 per month

Interference in the exercise of our power under Article 136 of the Constitution is not warranted in the facts and circumstances of the present case. On the question viz. whether the rate of rent would be at the rate of Rs. 250 per month or Rs. 3000 per month and since the High Court has directed an order of remanding the case back to the trial Court to determine the rate of rent, we are of the view that the High Court was justified in directing the tenant/appellant to pay rent of the shop room at the rate of Rs. 3000 per month till the final determination is made by the trial Court.

The directions made by the High Court to pay rent at the rate of Rs. 3000/- per month is purely provisional and such determination by the High Court shall not influence the trial Court from coming to a conclusion that the rate of rent is Rs. 3000/- per month. It will be open to the trial Court to determine the rate of rent on consideration of the evidence on record adduced by the parties and thereafter, direct the tenant to deposit the same in terms of such determination. Appeal is disposed of.

HIGH COURT

• TENANCY

DELHI HIGH COURT

Ms. Rohini Varshnei Vs. R.B. Singh (Decided on 04.12.2008) MANU/DE/1708/2008

Delhi Rent Control Act, 1958 - Sections 3, 6A, 8, 8(1) and 50; Transfer of Property Act, 1882 - Section 106; Civil Procedure Code (CPC), 1908 - Order 12, Rule 6 and 6(1); Delhi Rent Control (Amendment) Act, 1988 - Lease deed was executed in favour of Ms. Rohini Varshnei (appellant herein ) on 24.10.1996 by Smt. Shakun Vohra, the then owner - Owner executed registered sale deed dated 21.11.2001 in favour of Sh. R.B. Singh (respondent herein) in respect of the said rented premises along with undivided, impartible and individual share in the plot measuring 180 square metres - Respondent served a notice through Counsel on the appellant dated 09.05.2002 informing her about the sale and also notified the appellant to increase the rent by 10 per cent with effect from 21.06.2002 - Appellant replied to on 23.05.2002 wherein the factum of the respondent being the landlord was denied in view of the absence of any notice also the right to claim increase in rent was denied - Respondent served legal notice through Counsel dated 22.07.2002 terminating the tenancy and seeking possession of the property by 20.08.2002 - The respondent thereafter filed a suit for recovery of possession and for recovery of arrears of rent, damages/mesne profits - Trial court passed judgment in favour of the respondent- Hence this appeal - Whether the appellant can seek protection under the above mentioned provisions.

Held, that after receipt of the notice under Sections 6A and 8 of the Act, the appellant-tenant has lost the protection of the Delhi Rent Control Act. Also the respondent was held entitled to a decree on admission albeit for different reasons than the Trial Court.

BOMBAY HIGH COURT

Mrs. Ranjana Jayant Aundhe Vs. Ashok Namdeo Inamdar and Prakash Namdeo Inamdar (Decided on 04.12.2008) MANU/MH/1175/2008

Bombay Rents, Hotel and Lodging House Rates (Control) Act, 1947 - Section 12(2) - Petitioner-Original Plaintiff has challenged the concurrent finding of facts, whereby, both the Courts dismissed her suit for possession under the Bombay Rents, Hotel and Lodging House Rates (Control) Act, 1947 - on all grounds of default in paying the rent; acquiring suitable accommodation by Respondent No. 1, bonafide/personal requirement, illegal subletting and also for enhancement of the Rent - Whether the Petitioners claim can be entertained before this Court under the Bombay Rent Act.

Held, landlord is best judge of her reasonable and bonafide requirements. It would be injustice and hardship to the landlady if decree of possession on the bonafide need is not granted, hence petitioner/landlady cannot be deprived of beneficial enjoyment of her property.

• CIVIL

DELHI HIGH COURT

Dabur India Ltd. Vs. Amit Jain and Anr. (Decided on 03.12.2008) MANU/DE/1715/2008

Designs Act, 2000 - Sections 11, 19, 22, 22(1A) and 22(1B); Civil Procedure Code (CPC) - Order 23, Rule 3 - Order 39, Rules 1 and 2 - Under the provisions of Designs Act, where 'the 'sameness' of features does not necessarily mean that the two designs must be identical on all points and should differ on none. They have to be substantially the same.'

Held, for determining 'sameness' or 'indentical features' between two designs, it is not necessary that the two designs should be exactly the same. The main consideration to be applied is whether the broad features of shape, configuration, pattern etc. are same or nearly the same and if they are substantially the same then it will be a case of imitation of the design of one by the other.

• CRIMINAL

DELHI HIGH COURT

Udai Singh Vs. State (Decided on 02.12.2008) MANU/DE/1712/2008

Accused appellant assails his conviction and the sentences - Killed a young widow after she spurned his advances for marriage - Deceased when examined by the doctor was found to be conscious and oriented - On being asked by the doctor examining her she had informed the doctor that somebody had thrown acid on her half an hour back - Doctor declared that she was fit enough to make statement before Sub-Inspector - On the basis of aforesaid statement FIR under Section 307 IPC was registered and the accused was arrested. Whether the statement made by some injured person to a police officer as a dying declaration after the death of the injured is admissible in the eyes of law.

Held, the "justice theory" regarding acceptability of a dying declaration is that such declaration is made in extremity, when the party is at the point of death and when every hope of this world is gone, when every motive to falsehood is silenced, and the man is induced by the most powerful consideration to speak only the truth. Notwithstanding the same, great caution must be exercised in considering the weight to be given to this species of evidence on account of the existence of many circumstances which may affect their truth.

• ELECTION

BOMBAY HIGH COURT

Sunil Rameshchandra Kedia Vs. State of Maharashtra through its Secretary, Department of Co-operation and Marketing and Ors. (Decided on 02.12.2008) MANU/MH/1177/2008

Maharashtra Agricultural Produce Marketing (Development & Regulation) Act, 1967 ( in short APMC Act) - District Deputy Registrar passed order stating remedy of filing election petition earlier available vide Rule 88 of APMC Rules is now not available as said Rule 88 has been deleted - Petitioner disqualified by Director under the provisions of Rule 41(3) of APMC Rules - Petitioner contends the disqualification contemplated by Rule 41 is not automatic and mere existence of arrears or them clearance of arrears in lump-sum is not sufficient to declare the person as disqualified.

Held, that the right to elect is a statutory right and so is the right to be elected. The right to dispute election is, therefore, to be exercised in terms of provisions of the statute and outside such statutory provision, there is no such right to challenge it. As election itself is statutory creation, it is subject to statutory limitation.

• LABOUR AND INDUSTRIAL

BOMBAY HIGH COURT

General Secretary, Van Shramik Sangh Vs. The Director, Social Forestry, Maharashtra State and Ors. (Decided on 01.12.2008) MANU/MH/1178/2008

Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 - Unfair labour practices - Complainant - workmen were appointed as daily wagers under the Social Forestry Department - Workmen sought permanency and consequential benefits - Petitioners urged that constitutional scheme does not cover employment in a temporary and casual capacity which would consequently be governed by local Acts.

Held, that regularization in public employment cannot be granted when the initial appointment was de hors the prevalent rules and without following the regular procedure for recruitment.

• SERVICE

BOMBAY HIGH COURT

Pravin son of Moharao Unhale Vs. State of Maharashtra through its Secretary, Department of Law and Judiciary and The Chairman, Maharashtra Public Service Commission (Decided on 03.12.2008) MANU/MH/1176/2008

Constitution of India - Articles 14 and 226; Bombay Judicial Service Recruitment Rules, 1956 - Rule 4(4); Bombay Judicial Service Recruitment (Amendment) Rules, 2003; Maharashtra Judicial Service Rules, 2008 - Rule 5(3); Jammu and Kashmir Civil Service (Judicial) Recruitment Rules, 1967 - Rule 9 - Petitioner passed LL.B. Examination with 57.3 per cent marks - Maharashtra Public Service Commission [MPSC] published a proclamation inviting applications for the posts of Civil Judges [Junior Division] & Judicial Magistrates First Class [Junior Civil Judge] in six different categories, namely A, B, C, D, E and F with the different eligibility qualifications. Petitioner applied for Category "B" and even appeared for written and oral interview. However the authority withheld the final result of the petioner - Hence this petition.

Held, the petitioner was eligible to apply for the post of Junior Civil Judge as he satisfy the eligibility criteria, to the Proclamation/Advertisement published by the MPSC, in the category of "Fresh Law Graduates", namely Category 'B', in keeping with the requirements of Rule 4(4)(f)(iii-A) of the Bombay Rules.