NI Act - Jurisdiction U/S 482 CrPC Can't Be Invoked To Circumvent Due Procedure Of Law: Punjab & Haryana High Court

Relying on assurance made by the respondent that the payment shall be made he did not institute any complaint under Section 138 of the Negotiable Instruments Act, 1881. It is further contended that the said respondent has thus committed a fraud with the petitioner and that a representation in this regard has already been submitted to the DSP, Gurdaspur, however, no action has been taken thereupon.

The submission of the representation and approaching this Court is apparently an attempt on the part of the petitioner to arm twist the respondents to issue fresh cheques as the time period for institution of the complaint pursuant to the earlier cheques having been dishonoured has already expired since then.

The court observed that the transaction in question allegedly took place in 2017 and the cheque was dishonoured in January 2021. Therefore, the submission of the representation and approaching this Court is an attempt to arm twist the respondents to issue fresh cheques because time period for institution of the complaint has already expired.

Therefore, the petitioners should take recourse of appropriate proceedings before the competent authorities in accordance with law the court added.

Consequently, the court dismissed the instant petition for being sans any merit after observing that the present petition is apparently an attempt to circumvent the due process of law and to use it to pressurise and arm twist the respondents.

'Abuse Of Process, Frivolous Litigation' : Supreme Court Affirms Cost Of Rs 5 Lakhs Imposed On Litigant

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Criticising the filing of numerous proceedings before the tiers of forums upto the Supreme Court itself and the deliberate non-disclosure of absolutely relevant facts, the Apex Court went on to record that it was initially persuaded to initiate contempt proceedings against the Petitioner, but it is not doing so purely due to the age of the Petitioner as she is a lady of 78 years of age.

The bench of  Justices C.T. Ravikumar and Sudhanshu Dhulia was hearing the SLP against the June 13 decision of the Bombay High Court dismissing the petitioner's appeal with a cost of Rs. 5 lakhs.

Judge's Integrity Can't Be Doubted Merely For Allowing Adjournment Request: MP High Court

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The Madhya Pradesh High Court recently set aside the order of the Disciplinary Authority against a former lower court Judge, whereby he was held guilty of misconduct. Corollary to the same, the Court also set aside the order of his compulsory retirement. He was held guilty by the Disciplinary Authority for, among other things, granting bail with a

"corrupt or oblique motive" and for granting adjournments on "extremely flimsy grounds".

Disagreeing with the reasoning of the Disciplinary Authority regarding the adjournments granted by the Petitioner/Former lower court Judge, the division bench of Chief Justice Ravi Malimath and Justice Vishal Mishra observed-

Whether the concerned Judge was justified in granting adjournments or not, cannot be ascertained by merely looking at the order sheets and the number of times, the case has been adjourned. There are so many factual situations that happen in the open Court which cannot always come about in the order sheets of the Judge. Many of the submissions, many of the requests and many such events that happen in the open Court are best left between the discussions of the Bar and the Bench. It is not necessary that each and every word that an advocate states in an open Court require to be transcribed into the order sheets. The Judge holding a Court is not a stenographer to take down the dictation of each and every advocate.

Every Woman Expects Respect; Friendly Relation with a Girl Doesn’t Imply Her Consent For Physical Relationship: Bombay HC

Girl sharing-friendly relationship cannot be construed as consent to establish a physical relationship with her: Bombay High Court

The High Court also said that every woman always expects respect in any relationship.

The Bombay High Court last week held that merely because a girl is friendly with a boy, 

doesn't allow him to take her for granted and construe it as consent to establish a sexual relationship with her

The Bombay High Court ruled that just because a girl is friendly with a boy, he cannot take her for granted and interpret it as consent to establish a sexual relationship with her.

While denying anticipatory bail to a man accused of raping a girl under the guise of marriage, single-judge Justice Bharati Dangre stated that just because a girl is friendly does not give the boy permission to force himself upon her.

The judge was hearing an application filed by one Ashish Chakor seeking anticipatory bail because he was afraid of being arrested in connection with a First Information Report (FIR) lodged against him by the complainant at Mumbai’s MHB Colony Police station.

According to the FIR, the complainant girl and the applicant were friends. In 2019, the two went to the home of a mutual friend, where the applicant forced himself on her. She objected to his actions, but he expressed his feelings for her and promised 

to marry her soon. 

The applicant was involved in a physical relationship with the girl until she became pregnant and confronted him.

He, on the other hand, refused to marry her or accept responsibility for the pregnancy, instead accusing her of infidelity. 

The applicant had made a promise to marry her, and it was only after that promise that she agreed to the sexual act, according to Justice Dangre.

In light of this, the judge denied the anticipatory bail application.

Despite this, he had sexual relations with her twice before filing the FIR.

.

A woman does not physically resist to the act of penetration, it cannot be regarded as a consenting to the sexual activity - Patna High Court

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In a significant ruling, the Patna High Court 22/06/22 held that the absence of physical resistance on the part of a rape survivor does not mean that she consented to the act.

"The prosecutrix is a married woman having a son aged about 4 years. She was pitted against an adult male at her house in the night hours. In such a situation, it might not be possible for her to offer resistance to the act of the accused. Moreover, mere non-offering of resistance cannot amount to consent." - The court.

"Proviso clause of Section 375 makes it clear that only because a woman does not physically resist the act of penetration, it cannot be regarded as a consenting to the sexual activity." 

S 311 CrPC - Witness Can't Be Recalled Merely Because He Gave A Different Statement In Another Case Relating To Same Incident : Supreme Court

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Code of Criminal Procedure 1973; Section 311 - Merely because a different statement given by the same prosecution witness in another case that itself would not be a reason for recalling the witness.

The Supreme Court has held that "merely because a different statement was given by the same prosecution witness in another case relating to the same incident, that itself would not be a reason for recalling the witness under section 311, Cr. P. C." The petitioner is facing trial in a murder case. In 2014, during the trial, one prosecution witness named Naushad gave a statement that he had identified the petitioner as one of the assailants carrying a rifle. Relating to the crime, the petitioner was facing another trial under the Gangsters Act. In the proceedings under the Gangsters Act, the same witness Naushad gave a statement in 2021 that he could not identify the petitioner as one of the assailants as he was wearing a cloth over his face. Relying on the second statement given by the witness in 2021, the petitioner sought to recall him as a witness in the first trial. The trial court rejected this application and the High Court affirmed the rejection. In this backdrop, he approached the Supreme Court.

Right of frozen embryo to be born cannot be stultified by Assisted Reproductive Technology Act: Kerala High Court

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The Kerala High Court on 22/06/2022 held that the right of an embryo to develop into a foetus and then be born cannot be stultified by relying on the provisions of the Assisted Reproductive Technology (Regulation) Act, 2021 (the Act).

"Apart from the aspirations of the first petitioner (mother) to conceive and the second petitioner (father) , to beget a child, the right of the life inside the embryo, which is kept frozen for the past 8 years, to develop into a fetus and be born, cannot be stultified by relying on a provision which has no application. The primary objective of the Act is the regulation and supervision of the assisted reproductive technology clinics and banks, by preventing misuse and ensuring the safe and ethical practice of assisted reproductive technology services. The Act is not intended to create difficulties for persons opting for the assisted reproductive procedure."

"Life inside a human embryo remains frozen, awaiting its opportunity to be born as a child to its parents; the petitioners. Meanwhile, the State brings out well-meaning legislation viz, the Assisted Reproductive Technology (Regulation) Act, 2021. Will the new enactment have an impact on the Assisted Reproductive procedure, which the petitioners now want to continue, is the question."

Posting Anticipatory Bail Plea After 2 Months Can't Be Appreciated : Supreme Court

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On a plea seeking anticipatory bail in a 2022 FIR under sections 420/467/468/471/120-B/34 IPC. "Issue notice. The learned APP for the state is present and accepts the notice and seeks time to file a status report. Let the status report be filed by the state prior to the next date with an advance copy to the learned counsel for the petitioner. List on 31.08.2022".

The bench of Justices Ravikumar and Dhulia noted that "the grievance of the petitioner in the captioned Special Leave Petition is that the application for anticipatory bail moved by him, being Crl. M.A. No. 11480 of 2022 in Bail Application No. 1751 of 2022 was posted to 31.08.2022 without granting any interim protection. The application for bail was moved on 24.05.2022."

The bench asserted, "We are of the considered view that in a matter involving personal liberty, the Court is expected to pass orders in one way or other taking into account the merits of the matter at the earliest."

The bench further declared, "At any rate, posting an application for anticipatory bail after a couple of months cannot be appreciated."

The bench then proceeded to request the High Court to dispose of the application for anticipatory bail on its own merits and in accordance with law expeditiously, preferably within a period of three weeks after the reopening of the Court. The bench has added that if the main application could not be disposed of, for any reason, within the stipulated time, the relief sought for in the interlocutory application shall be considered on its own merits.

I
n disposing of the SLP, the bench directed in its order that "Till such time, we grant interim protection from arrest to the petitioner herein."

Code of Criminal Procedure 1978- Section 438 - Anticipatory Bail- Court is expected to pass orders in one way or other taking into account the merits of the matter at the earliest - Posting an application for anticipatory bail after a couple of months cannot be appreciated- Matter involves personal liberty

Supreme Court Disapproves Insurance Company's Insistence On Producing Driving License Which Was Burnt In Accident

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The Supreme Court recently dismissed an appeal filed by an insurance company against an order of the National Consumer Disputes Redressal Commission which allowed a claim.

The insurer had repudiated the claim on the ground that the driving license was not produced. However, the Surveyor's Report suggested that the driving license was burnt in the accident.

"Still, the Insurance Company insisted on producing the document, which was beyond the insured's control, " the Court noted.

The bench comprising Justices MR Shah and Aniruddha Bose dismissed the insurer's appeal against the orders of the District Forum and NCDRC.

"In the above facts and circumstances of the case, we find that no error has been committed by the District Forum as well as by the National Consumer Disputes Redressal Commission [in short, "NCDRC"] in allowing the claim.

We see no reason to interfere with the impugned order passed by the NCDRC. The civil appeal is, accordingly, dismissed".

Altering Father's Name In Birth Certificate-Biological Father's Consent Not Required In Absence Of Challenge To Adoption Deed: Gujarat High Court

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The petitioners herein were guardians of their minor son. Petitioner 2 (the husband) was the second husband of the Petitioner 1 (wife) and the minor was born out of her first marriage. Petitioner 1 and her first husband had executed a deed of divorce and Petitioner 1 eventually married petitioner 2, who also agreed to take all responsibilities for her minor son, and a deed of adoption was executed which was duly registered.

The petitioners then filed representation to the respondent authority to replace/mention the name of Petitioner 2 as the father, in place of the minor's biological father, in his birth certificate. This application for correction was refused by the respondent, asking the petitioners to produce an order of the local court with regard to the adoption.

The counsel for the petitioners argued that, as per Section 16 Hindu Adoptions and Maintenance Act, 1956 (hereinafter "the Adoptions Act"), only registered adoption is mandatory. He also referred to circulars dated 15.05.2015 and 31.01.2018 issued by the Ministry of Home Affairs, which have stated that only a registered adoption deed is mandatory and the requirement of the decree of adoption from the court concerned has been discontinued. It was also pointed out that the circulars that the impugned order was premised upon had since been cancelled by a subsequent order by the state authority.

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The counsel for the respondent candidly admitted that the circulars that the impugned order was based upon have since been quashed. He submitted that, as per provision of Section 9 of the Adoptions Act, the Registrar has to verify whether the Adoption Deed is valid or not and hence, the biological father has to be made a party respondent in the writ petition in order to verify whether the adoption deed produced by the petitioners is legal or valid.

Also Read - Order Terminating The Arbitration Not Challenged; Can't File Section 8 Application Later: Karnataka High Court

The Court was of the opinion that cancellation of the orders that the respondent's decision was based upon, was ground alone for quashing the impugned order.

It then referred to Section 15 of the Registration of Births and Deaths Act, 1969 and noted that Registrar can correct an entry already made in the Birth Register if the same is conceded, and such correction should legitimately take within its sweep the correction of entries rightfully made since it is the correction of the name of the child at the instance of the parents of wards.

The Court then referred to the case of Tushar Kanaiyalal Vyas (Thru. POA) vs. State of Gujarat & Ors., as per which, when the decree of divorce between the biological parents clearly provided that custody of their minor child would be with the wife and the registered deed of adoption has not been challenged, a presumption as per the provision of Section 16 of the Adoptions Act was drawn in favour of the petitioners.

In the present case, there was a divorce deed that was executed, it was mutually decided that custody of the minor son was accepted by the mother-petitioner and there was a valid adoption deed in which the adoptive father-petitioner had assumed responsibility for the minor son. The biological father had neither raised any objection to the custody of the minor nor had he raised any objection to his ex-wife's subsequent marriage and the minor's adoption.

In light of the above, the Court held that the stage of obtaining consent, as defined under section 9 of the Adoptions Act, cannot be invoked at the stage of incorporating the father's name (adoptive) in the birth record of the son, after the divorce and adoption deeds have been registered and have not been questioned. Thus, neither the biological father, i.e. the former husband of the petitioner no.1 is required to be made as a party to the writ proceedings for ascertaining his consent nor his opinion is necessary to be called for by the Registrar.

The Court also opined that as per the provision of section 16 of the Hindu Adoptions and Maintenance Act, 1956, a presumption has to be drawn in favour of the petitioners since there is no rebuttal of the adoption deed of the minor. The Registrar, who is the competent authority under the Registration Act, 1969 can only verify the correction of the adoption deed and if the same is found to be duly registered and valid, he has to make necessary corrections/changes in the birth records of the adopted child.

The Court directed the respondent authority to correct the father's name and incorporate the name of Petitioner 2 in the minor's birth certificate and accordingly issue a fresh certificate within one month from the date of receipt of the order.

Term "sexually explicit" under section 67A IT Act not limited to sexual intercourse; will include nude video: Bombay High Court

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The Bombay High Court last week observed that forwarding a nude video is an offence under Section 67A of the Information Technology (IT) Act.

Justice Bharati Dangre was of the opinion that the term "sexually explicit" under section 67A isn't limited to the act of sexual intercourse but would also include a video showing a person in the nude.

"The intention of the legislature in introducing Section 67, being publishing or transmitting obscene material in electronic form, cannot be restricted by construing the term ‘sexually explicit’ to only showing an activity of being indulging in sex." 

The Court, therefore, denied anticipatory bail to a man accused of sending a nude video of a woman to multiple people including her husband on WhatsApp.

"In any case, when the intention of the legislature was to do away exploitation of women or children or any person in electronic form by publishing or transmitting any obscene material, the term ‘sexually explicit’, cannot be said to be not covering activity in respect of which the accusations are made." 

Foreigners Wearing Gold/ Silver jewellery Worth Over ₹50,000 Must Declare To Customs: Madras High Court

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Foreigners Wearing Gold/ Silver Jewellery Worth Over ₹50,000 Must Declare To Customs/Upholds Penalty On Srilankan Family.

The Madras High Court recently upheld the order of the Principal Commissioner (Revision Application) and held that gold/silver ornaments that are worn in person and exceed Rs. 50,000 in value has to be declared before the Customs Authority.

Justice C Saravanan opined that the law was unambiguous in this regard. Though exemptions were provided under the Baggage Rules, 2016 was limited to the extent permitted. The court also opined that the import of jewellery is worth more than Rs. 50,000 could not be considered as bonafide baggage and could not be exempted from paying customs duty.

Case Detail

The petitioners are members of the same family and are Sri Lankan nationals based in Colombo. They arrived at the Chennai Airport on 06.05.2017 along with two minor children. All the petitioners were wearing 1,594 kgs of gold jewellery valued at Rs.43,95,854/-. They attempted to walk through the green channel along with two minor children wearing 1594 kgs of gold jewellery without making a declaration before the Customs Officers. Apart from the jewellery, the first petitioner had also purchased about 112 bottles of liquor valued at Rs.1,50,000/-.

The officers of the Air Customs Department intercepted them and found that there was an attempt to smuggle liquor beyond the permissible limit. Subsequently, a show-cause notice under Section 124 of the Customs Act, 1962 was issued to them which was duly replied to.

The Joint Commissioner of Customs, 3rd respondent imposed a redemption fine under Section 125 of the Customs Act and a penalty under Sections 112 (a) & 114 AA of the Customs Act, 1962. Aggrieved, the petitioners herein filed an appeal before the Appellate Commissioner. By a common Order, the appeals were allowed.

The petitioners had thus filed writ petitions for a refund of the amount paid by them towards redemption and penalty which was disposed of by the High Court directing the first respondent to pass appropriate orders on merits in the revision application filed before the first respondent within a period of 12 weeks.

The first respondent reversed the Order in Appeals passed by the Commissioner of Customs (Appeals) and thus affirmed the order of the third respondent ordering the confiscation of the gold & liquor and imposition of redemption fine and penalty under Section 125 and Section 112 (a) of the Customs Act, 1962. The first respondent further held that there was no necessity to impose a separate penalty under Section 114 AA of the Customs Act, 1962.

Court observation:

The court observed that Jewelry items are not articles of personal effect. Therefore, the petitioners being tourists within the meaning of Rule 2(1)(v) of the Rules were governed by Sub Clause (b) of Rule 3 of Baggage Rules, 2016. The said Rule read with Annexure I makes it clear that gold or silver ornaments up to a value of Rs.50,000/- (Rupees Fifty Thousand only) worn in person or carried on the person are only freely importable.

Since the value of the gold ornaments worn in the person of the respective petitioners exceeded Rs.50,000/- (Rupees Fifty Thousand only), it was incumbent on the part of the petitioners to have made a proper declaration under Customs Baggage Declaration Regulations, 2013 read with Baggage Rules 2016. These Rules apply to all passengers including tourists coming to India.

Therefore, there was no scope for any ambiguity and confusion. If the value of gold and silver ornaments exceeded the value under the Rules, the petitioners were required to make the appropriate declaration.

Import of gold or silver ornaments exceeding Rs.50,000/- (Rupees Fifty Thousand only) cannot be considered as part of the bonafide baggage of tourists traveling to India. The court also raised suspicion about the conduct of the petitioners.

"Further, one fails to understand, petitioners who claim to be pilgrims visiting an alien country would wear costly jewellery even if it be their customs. The fact that the petitioners also purchased 112 bottles liquor beyond the permissible limits and attempted to walk through the green channel without making declaration also shows that the visit to India by the petitioners were not purely as pilgrimage alone."

The court was therefore of the opinion that the proceedings against the petitioners were in accordance with the provisions of the Customs Act 1962 and that there was no infirmity in the order.

Motor Accident Death - Kerala High Court Lays Down 'Twin Conditions' To Claim Compensation In Plea Alleging Driver's Negligence

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The Kerala High Court has held that in a claim under Section 166 of the Motor Vehicles Act, the petitioners must prove not only the negligence on the part of the driver or rider but also prove that the person alleged to have sustained injuries in a motor accident died in consequence of the accidental injuries.

Justice A. Badharudeen added that it is the burden of the petitioners to adduce evidence to satisfy the allegations raised by them since grant of compensation therein is based on the principle of `fault' liability.

"The prime question arises for consideration is what are the conditions to be established to claim compensation in a petition filed under Section 166 of the Motor Vehicles Act when the petitioners allege negligence on the part of the driver/rider of the vehicle and death as its consequence? The answer to the above question is; twin conditions must be satisfied in this regard. The first one is proof of negligence on the part of the rider or driver of the vehicle alleged to be involved in the accident and the second one is proof of death of person in consequence of accidental injuries."

 A woman allegedly met with an accident and succumbed to her injuries while travelling on a motorcycle driven by her brother. Her husband and two sons filed an application under Section 166 before the Tribunal alleging that the accident was contributed by the brother's negligence and they claimed compensation from the owner, driver and the insurer (appellant herein) of the motorcycle respectively.

The appellant denied the accident and the negligence attributed against the deceased's brother (driver) pointing out that the police had not registered any case until 3 months later, which was based on a private complaint lodged by the husband before the Magistrate. It was argued that the deceased died of natural causes while emphasizing that there was no postmortem certificate or inquest to hold otherwise.

However, the Tribunal found negligence against the driver and granted compensation to the applicants after examining the husband of the deceased and the doctor who treated the deceased. Challenging this order, the appellant-insurer approached the High Court.

The Court noted that the respondents failed to substantiate negligence against the driver with convincing and cogent evidence.

As per the FIR, rash and careless driving by the brother caused the accident. But according to the final report, the allegations in the FIR and the private complaint are false. No protest complaint was filed by the applicants before the Magistrate Court against this finding to establish the allegation in the FIR and the private complaint. None of the occurrence witnesses were examined before the Tribunal either.

Long Cohabitation Between Man & Woman Raises Strong Presumption In Favour Of Their Marriage: Supreme Court

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The Supreme Court reiterated that long cohabitation between a man and woman raises a strong presumption in favour of their marriage.

Case detail:

The presumption is rebuttable, a heavy burden lies on him who seeks to deprive the relationship of legal origin to prove that no marriage took place, the bench comprising Justices S. Abdul Nazeer and Vikram Nath observed.

In this case, the plaintiffs who filed a partition suit contended that the suit property belonged to one Kattukandi Edathil Kanaran Vaidyar who had four sons viz. Damodaran, Achuthan, Sekharan and Narayanan. The first plaintiff is the son of Damodaran, born in wedlock with one Chiruthakutty, and the second plaintiff is the son of the first plaintiff. The defendants contended that all the children except Achuthan died as bachelors and Karunakaran is the only son of Achuthan. They denied the contention of the plaintiffs that Damodaran had married Chiruthakutty and that the first plaintiff was the son born to them in the said wedlock. The Trial Court found that Damodaran had a long co­habitation with Chiruthakutty and thus it could be concluded that Damodaran had married Chiruthakutty and that the first plaintiff was the son born in the said wedlock. The Trial Court passed a preliminary decree for partition of the suit property into two shares and one such share was allotted to the plaintiffs. Allowing the appeal filed by the defendants, the High Court held that there is no evidence to establish the long cohabitation between the father and the mother of the first plaintiff and the documents only proved that the first plaintiff is the son of Damodaran, but not a legitimate son.

The appellant plaintiffs before the Apex Court contended that voluminous documents produced by them would show that Damodaran was the father of the first plaintiff and Chiruthakutty was the wife of Damodaran. The defendants, on the other hand, contended that there is no proof whatsoever either of the marriage or of the long cohabitation. The issue therefore considered by the Apex Court was whether there is sufficient evidence to prove the long cohabitation to establish the relationship of husband ­wife between Damodaran and Chiruthakutty?

There would be a presumption in favour of wedlock

The court, on examining the documents and evidence on record, observed that the plaintiffs have proved a long duration of cohabitation between Damodaran and Chiruthakutty as husband and wife. Further, the defendants have failed to rebut the presumption in favour of a marriage between Damodaran and Chiruthakutty on account of their long co­habitation, the court noted.

while allowing the appeal observed:

It is well settled that if a man and a woman live together for long years as husband and wife, there would be a presumption in favour of wedlock. Such a presumption could be drawn under Section 114 of the Evidence Act. Although the presumption is rebuttable, a heavy burden lies on him who seeks to deprive the relationship of legal origin to prove that no marriage took place.

Don't insist on certified copies of orders; downloaded copies attested by lawyer sufficient: Himachal Pradesh High Court

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The Himachal Pradesh High Court has asked all judicial officers in the State not to insist on certified copies of bail orders/ interim orders passed by the High Court since it is cumbersome and causes inconvenience to the litigants.

The High Court has said that litigants/ lawyers should be permitted to submit downloaded copies of such orders provided they are attested by the counsel representing the parties to be the true downloaded copy.

A letter to this effect was issued by the Registrar (Vigilance) of the High Court of Himachal Pradesh, Shimla JK Sharma on June 3.

"All trial courts, Presiding Officer(s) are, therefore, requested to accept the downloaded copies of the bail orders/interim orders passed by the High Court, if the same are attested to be true downloaded copy by the counsel, representing the parties. However, before accepting such orders, the orders could be got verified from the High Court website." 

Relatives living in distant places can also be booked for harassing wife-Section 498A- Bombay High Court

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The Nagpur Bench of Bombay High Court recently refused to quash a First Information Report (FIR) lodged against the relatives of a man in a Section 498A case, saying that many a time, relatives living in distant places also meddle in the affairs of a couple and harass the wife.

The Court in an order passed on June 8, refused to accept the argument on two counts.

"Firstly, there is no presumption in law that a relative living at a distance is always innocent unless proved otherwise. A relative staying away from the husband and wife can and has been seen in many cases meddling in affairs of the married couple and that too of such a nature and to such an extent, as to amount to real harassment." 

As far as the in-laws are concerned, the wife alleged in her FIR that when she informed her husband's parents and siblings about his extra marital affair, they instead of controlling his conduct, started abusing her

Forfeiting Gratuity A Yr After Compulsory Retirement An Afterthought: Gujarat HC Orders Payment To Ex-Employee Accused Of Causing Monetary Loss To Bank

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The Gujarat High Court recently came to the rescue of a retired Branch Manager, accused by the employer-bank of causing it monetary loss by haphazardly sanctioning loans, and ordered the latter to clear the former's retiral dues.

Justice Biren Vaishnav observed that the order forfeiting the Respondent-employee's gratuity was an "afterthought" as the same was issued only after the penalty of dismissal was modified to compulsory retirement and after the respondent approached the bank seeking payment of gratuity.

[8:58 am, 13/06/2022] Satish Swami  Advocate: Thus, it affirmed the orders of the Controlling Authority and the Appellate Authority which directed the Union Bank of India to pay an amount of INR 9,77,440 as gratuity. It however modified the rate of interest from to% to 8%.

"Reading the timeline would indicate that despite a charge-sheet being issued in the year 2011 and the dismissal order of 2012, it was only after the penalty was modified to that of compulsory retirement in January 2014 and after the respondent approached the bank, did the bank think it fit to invoke the provisions of Section 4(6)(a) of the (Payment of Gratuity) Act."

The brief facts of the case are that the Respondent was working as a Branch Manager with the Petitioner Bank since 1984. However, during the course of employment, the bank issued a charge-sheet levelling certain imputations in the context of disbursement of term loans etc. After a departmental inquiry, the bank imposed a penalty of dismissal in 2012 which was challenged by the Respondent. The Appellate Authority reduced the punishment to compulsory retirement in appeal.

Thereafter, the Respondent complained of non-payment of gratuity as required under Section 7 of the Payment of Gratuity Act, 1972. However, the bank issued a show-cause notice under Section 4(6) of the Payment of Gratuity Act, as to why the gratuity not is forfeited. Pursuant to the response of the Respondent, the amount of gratuity was withheld.

The Controlling Authority held that withholding of the gratuity was in contravention of Section 7 of the Act, and the same was later affirmed by the Appellate Authority.

The Petitioner-bank largely contested that the Respondent had caused a loss of INR 4.36 crores to the bank which was quantified by the competent authority and therefore, it was just and proper to forfeit gratuity.

Per contra, the Respondent supported the order of the Appellate Authority while submitting that there was no quantification of the loss caused to the bank except for a figure of INR 4.36 crores mentioned in the final order. Reliance was placed on UCO Bank and Others vs. Anju Mathur to argue that if there was failure to quantify loss caused to the bank then there was a breach of Sec 4(6)(a) of the Gratuity Act.

The High Court agreed that barring a single line stating the loss of 4.36 crores caused to the bank, there was nothing on record to how the bank had quantified the loss. It further observed that the Appellate Authority had rightly assessed the mindset of the bank, especially when the bank had invoked Sec 4(6)(a) of the Act for more than two and a half years after the Respondent was penalised.

Allahabad High Court Quashes Order Transferring A Nationalised Bank Employee Whose Wife Is Having 100% Disability

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Allahabad High Court, Rights of Persons with Disabilities Act, WIFE, bank employee, 100% disabled, the central bank of India,

The Allahabad High Court recently quashed an order transferring an employee of the Central Bank of India from one place to another as it noted that his wife is a permanently disabled person having 100% disability.

The Bench of Justice Rajesh Singh Chauhan noted that as the husband (employee) is the caregiver of her wife [as defined under Section 2 (d) of the Rights of Persons with Disabilities Act, 2016], therefore, as per the bank's transfer policy, he shall be exempted from routine/ rotational transfer.

Further, the Court stressed that the rotational transfers are meant for a person who has not been protected by any compassionate or beneficial policy, however, the Court added, if any employee has been protected from any beneficial or compassionate policy, the same may not be ignored unless there is any administrative reason to transfer such person from one zone to another zone.

Consequently, the Court quashed the order transferring him from Lucknow to Cooch Behar, Kolkata, however, since in place of the petitioner someone has submitted his joining, the Court directed the opposite parties to accommodate the petitioner at any suitable place in Lucknow Region, be it in rural areas or urban areas as per the convenience of the authorities.

High Courts Not To Enquire If There Is Reliable Evidence While Exercising Section 482 CrPC Jurisdiction : Supreme Court

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Code of Criminal Procedure 1973- Section 482 -While exercising jurisdiction under Section 482 of the Cr.P.C., the High Court should not ordinarily embark upon an enquiry into whether there is reliable evidence or not. The jurisdiction has to be exercised sparingly, carefully and with caution only when such exercise is justified by the specific provisions of Section 482 of the Cr.P.C. itself.

Reiterating that "the Court interferes in criminal proceedings under Cr. P. C. Section 482, in rare and exceptional cases, to give effect to the provisions of the Cr.P.C. or to prevent abuse of the process of any Court or otherwise to secure the ends of justice", the Supreme Court has stressed that criminal proceedings can be said to be in abuse of the process of court "when the allegations in the FIR do not at all disclose any offence or there are materials on record from which the Court can reasonably arrive at a finding that the proceedings are in abuse of the process of the Court"

The Court has added, "While exercising jurisdiction under Section 482 of the Cr.P.C., the High Court should not ordinarily embark upon an enquiry into whether there is reliable evidence or not. The jurisdiction has to be exercised sparingly, carefully and with caution only when such exercise is justified by the specific provisions of Section 482 of the Cr.P.C. itself."

The bench of Justices Banerjee and Bopanna recorded, "The Criminal Case/FIR has been quashed in exercise of the power under Section 482 of the Cr.P.C. A copy of the FIR is included in the paper book. In the FIR it is stated that the accused respondents fabricated and forged a will of deceased Ram Swaroop, S/o Mathura Prasad and forged the signatures of Ram Swaroop on stolen stamp papers. When this fact came to the knowledge of the complainant and to the knowledge of Sunderpal, he made enquiries from the accused- respondent, Vimlesh Kumar and his brothers, who used abusive language and admitted to having forged the will."

The bench said that it is not inclined to look into the correctness of the allegations made in the FIR at this stage. However, the bench expressed the view that ex-facie, the allegations in the FIR disclose an offence, and that whether the persons named in the FIR have committed the offence or not has to be decided upon trial in the criminal proceedings.

"The Court interferes in criminal proceedings, in exercise of the power under Section 482 of the Cr.P.C., in rare and exceptional cases, to give effect to the provisions of the Cr.P.C. or to prevent abuse of the process of any Court or otherwise to secure the ends of justice."

The bench repeated, "While exercising jurisdiction under Section 482 of the Cr.P.C., the High Court should not ordinarily embark upon an enquiry into whether there is reliable evidence or not. The jurisdiction has to be exercised sparingly, carefully and with caution only when such exercise is justified by the specific provisions of Section 482 of the Cr.P.C. itself"

The bench underlined, "The criminal proceedings can be said to be in abuse of the process of Court, to warrant intervention under Section 482 Cr.P.C., when the allegations in the FIR do not at all disclose any offence or there are materials on record from which the Court can reasonably arrive at a finding that the proceedings are in abuse of the process of the Court."

The bench continued to observe that in this case, it appears that the High Court fell in error in taking an adverse view only because the complainant had not challenged the genuineness of the will by bringing any action in a Court of law and further, the respondents had brought a suit for injunction against the complainant.

 "There can be no doubt that in the civil suit, the burden would be on the plaintiff relying on a will to establish the genuineness of the will on the basis of which relief/permanent injunction is claimed. However, that does not prevent the accused, who can be defendants in such a civil suit from initiating criminal proceedings on the contention that the will is forged/fabricated", stated the bench.

Declaring that in its considered opinion, the High Court fell in error in quashing the complaint, the bench allowed the appeal and set aside the impugned order.

High Court cannot grant bail to resident of State if case registered outside jurisdiction: Jammu & Kashmir High Court

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The High Court of Jammu & Kashmir and Ladakh recently said that it does not have jurisdiction to grant anticipatory bail to a person against whom a case has been registered outside its local limits even if the person resides within the jurisdiction of the Court [Nisar Ahmad Wani & Ors. v Police Station Neemuch & Ors.].

Single-judge bench of Justice Sanjay Dhar held so in line with the provisions of Section 438 Code of Criminal Procedure (CrPC) and the decision of the Court in Mohan Singh Parihar v Commission of Police & Ors. which had dealt with the subject matter in detail.

"From the aforenoted enunciation of law on the subject, it is clear that this Court does not have jurisdiction to entertain and decide the bail application which relates to an FIR that has been registered beyond the local limits of this Court even though the accused/petitioner may be residing within the jurisdiction of this Court,"

Mismatch in blood transfusion leading to death of patient is medical negligence: NCDRC

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A Kerala based private hospital was accused of giving wrong blood to a woman receiving infertility treatment, which resulted in her death.

The National Consumer Disputes Redressal Commission (NCDRC) has reiterated that a mismatch in blood transfusion resulting in the death of a patient will amount to medical negligence.

A bench of Justice RK Agrawal (President) and Dr SM Kantikar (member), therefore, directed a Thiruvananthapuram based private hospital to pay compensation of ₹20 lakh along with ₹1 lakh litigation cost to the family of a woman who died there in the year 2002.

“In the instant case wrong blood transfusion to Sajeena (deceased) was an error which no hospital/doctor exercising ordinary care would have made. Such an error is not an error of professional judgment but in the very nature of things a sure instance of medical negligence and the hospital's breach of duty contributed to her death. Thus, we have no hesitation to hold the Opposite Party No. 1 (Hospital) and 2 (Doctor responsible for blood transfusion) liable for deficiency in service and the medical negligence.” 

Pension Is A Continuous Cause Of Action; Arrears Can't Be Denied On Ground Of Delay : Supreme Court

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The Supreme Court, recently, held that arrears of pension cannot be denied on the ground of delay in approaching the Court as pension is a continuous cause of action.

The appellant had filed a writ petition along with other petitioners before the Bombay High Court at Goa, assailing the action of their employer (Goa Government) retiring them at the age of 58 years instead of 60 years. They were inducted into service prior to the appointment day as provided under the Goa, Daman and Diu Reorganisation Act, by which the State of Goa and Union Territory of Daman and Diu came into existence. The appellant and the other petitioners contended that the Act of the Govt. was in violation of Section 60(6) of the Reorganisation Act which contemplated the conditions of service applicable immediately before the appointed day, shall not be varied to the disadvantage of the employees appointed prior to it, except with the approval of the Central Government. Though the Bombay High Court found the retirement age to be 60 years, considering the delay in approaching it, the High Court held that they were not entitled to any salary/back wages for the two extra years they would have been in service. It reckoned that the pension would be computed on the basis that they continued service till they attained the age of 60 years, but no arrears of pension would be paid. Even the pension at the revised rates would be payable only from 01.01.2020.

A Bench comprising Justices M.R. Shah and B.V. Nagarathna set aside the order of the High Court to the extent it denied arrears of pension. It held that the appellant is entitled to a pension at the revised rates from the day they turn 60. Furthermore, arrears of pension were directed to be paid to the appellant within a period of four weeks.

The Apex Court was of the opinion that the High Court may be right and/or justified in denying any salary for the period of two extra years to the writ petitioners if they would have continued in service.

However, there was no justification for denying the relief regarding pension arrears.

"...as far as the pension is concerned, it is a continuous cause of action. There is no justification at all for denying the arrears of pension as if they would have been retired/superannuated at the age of 60 years. There is no justification at all by the High Court to deny the pension at the revised rates and payable only from 1st January 2020. Under the circumstances, the impugned judgment and order passed by the High Court is required to be modified to the aforesaid extent".

"The impugned judgment and order passed by the High Court to the extent of denying any arrears of pension and holding that the appellant shall be entitled to the pension at the revised rates only from 1st January 2020 is hereby quashed and set aside. It is held and ordered that the appellant –original writ petitioner shall be entitled to a pension at the revised rates from the date he attains the age of 60 years. Now the arrears accordingly shall be paid to the appellant within a period of four weeks from today"