Vol-V Part-8

August, 2010

IMPORTANT CASE LAWS

Compiled by Tamil Nadu State Judicial Academy Chennai 28

SUPREME COURT CITATIONS

2010 -4-L.W. 14 Swami Prasad & Anr. Vs Lakhan Singh(d) & Ors. Thro Lrs. C.P.C., Order 22, Rules 5, 10-A / Delay of 8 years in seeking to set aside abatement of Second appeal due to death of 1st Respondent, Limitation Act, Section 5, Schedule/Articles 120, 121, Practice / Abatement of Second Appeal due to death of 1st Respondent, Delay of 8 years in seeking to set aside, Considerations. In this case, counsel for first respondent in Second Appeal informed the court about the death of first respondent (which was on 28.5.1998) only on 1.8.2006 nearly eight years after the death Appellants had no knowledge about the death Court finds that the appellants have explained the delay in filing the application for abatement. This a fit case where the High Court ought to have set aside the abatement by condoning the delay and permit the appellants to bring the legal representatives of the deceased first respondent on record Appeal from the Judgment of High Court of Madhya Pradesh, Jabalpur allowed. Limitation Act, Section 5, Schedule / Articles 120,121 See C.P.C., Order 22, Rules 5,10A / Delay of 8 years in seeking to set aside abatement of Second appeal due to death of 1st Respondent. Practice / Abatement of Second Appeal due to death of 1st Respondent, Delay of 8 years in seeking to set aside, Considerations- See C.P.C., Order 22, Rules 5, 10-A / Delay of 8 years in seeking to set aside abatement of Second appeal due to death of 1st Respondent, Limitation Act, Section 5, Schedule / Articles 120,121.

2010 (7) SCALE 582 Bhabani Prasad Jena Vs Convenor Secretary, Orissa State Commission for Women & Anr. OFFENCES AGAINST WOMEN ORISSA (STATE) COMMISSION FOR WOMEN ACT, 1993 SECTION 3 & 10 Power of State Commission for Women Extent of No power or authority has been given to the State Commission to adjudicate or determine rights of parties Appellant and respondent got married on 15.5.2007 However, on 7.8.2007, appellant filed a petition for declaration that the marriage between him and respondent No.2 was a nullity and that the said marriage had not been consummated On 30.12.2008, respondent filed a complaint before the State Commission for Women alleging that she was married to appellant and due to torture meted out to her by appellant and his family members, they have separated

and that she had no source of income and she was pregnant State Commission passed an order issuing directions that maintenance was compulsory for wife and that delivery expenses of respondent No.2 will be borne by appellant Direction was also issued that DNA test of respondent No.2 will be conducted Writ petition filed by appellant alleging that he had not fathered the child in the womb of respondent No.2 High Court passed an order directing that DNA of the child shall be conducted Whether the State Commission for Women was empowered to issue such directions Held, No Whether High Court was justified in issuing a direction for DNA test of the child Held, No Allowing the appeal, Held, It would be seen from Section 10 of the 1993 Act that the State Commission has been authorized to take up studies in respect of economic, educational and health situation of the women of the State and also the working conditions of women in the factories, establishments, construction sites and make its recommendations to the State Government. The State Commission is empowered to compile information in respect of the offences against women and to coordinate with the State Cell and District Cells for atrocities against women. Further, the State Commission is competent to receive complaints in respect of the matters specified in Section 10(1)(d) and take up the grievances raised in the complaints with the concerned authorities for appropriate remedial measures. The State Commission is also given role of assisting, training and orienting the non-Government organization in the State in legal counseling of poor women and enabling such women to get legal aid. Under clause (f) of Section 10(1), the State Commission is authorized to inspect or cause to be inspected, a jail, remand home, womens institution or other place of custody where women are kept as prisoners or otherwise and take up with the concerned authorities these matters for remedial action. In other words, the State Commission is broadly assigned to take up studies on issues of economic, educational and healthcare that may help in overall development of the women of the State; gather statistics concerning offences against women; probe into the complaints relating to atrocities on women, deprivation of women of their rights in respect of minimum wages, basic health, maternity rights, etc and upon ascertainment of facts take up the matter with the concerned authorities for remedial measures; help women in distress as a friend, philosopher and guide in enforcement of their legal rights. However, no power or authority has been given to the State Commission to adjudicate or determine the rights of the parties.

(2010) 3 MLJ (Crl) 446 (SC) Amarendra Kumar Paul Vs Maya Paul and Others Code of Criminal Procedure, 1973 (2 of 1974), Section 125 Maintenance for children Once children attained majority, provision would cease to apply. FACTS IN BRIEFF: Aggrieved by the order of the High Court by which the order passed by the trial Court for execution of an order passed under Section 125 of Cr.P.C. was upheld, present appeal is filed. QUREY: Whether the High Court is justified in upholding the order passed by the trial Court dismissing the application for execution of an order passed under Section 125 of Cr.P.C. opining that all children attained majority? Held: An application for grant of maintenance, is maintainable, so far as the children are concerned, till they had not attained majority. As a cause of action for grant of maintenance would arise only in the event a person having sufficient means, neglects or refuses to maintain his legitimate

or illegitimate minor child unable to maintain itself. Once, therefore, the children attained majority, the said provision would cease to apply to their cases. Code of Criminal Procedure, 1973 (2 of 1974), Section 125 Limitation Act (36 of 1963), Section 15 Grant of maintenance Limitation for filing application for execution. Held: A period of limitation is provided for in terms of the provision. However, in a case of the present nature, Section 15 of the Limitation Act would apply. The order of stay had been granted by the revisional Court as also by the High Court. The limitation for filing application for execution would be computed upon excluding the period during which the order of stay was operating.

(2010) 3 MLJ (Crl) 452 SC Musheer Khan @ Badshah Khan and Another Vs State of Madhya Pradesh Indian Penal Code (45 of 1860), Section 302 read with 120 B Murder case Conviction and death sentence - Case rests on circumstantial evidence Appreciation of circumstantial evidence Principles Extension of benefit of doubt - Death sentence awarded liable to be set aside. FACTS IN BRIEF: Whether the conviction and death sentence awarded are justified when the case rests on the circumstantial evidence which is doubtful and when the benefit of doubt can be extended to the accused? QUREY: Whether the conviction and death sentence awarded are justified when the case rests on the circumstantial evidence which is doubtful and when the benefit of doubt can be extended to the accused? Held: Considering the fact and also going by the test of appreciation of circumstantial evidence, this Court has to extend the benefit of doubt of A -4 and A-5 and cannot sustain the judgment and order of conviction of A-4 and A-5 under Section 302/120-B of I.P.C. read with Section 25(1)(a)(b) and Section 27 of the Arms Act and consequently the death sentence awarded to them by the High Court is set aside. This Court is of the view that the so called circumstantial evidence against A-4 and A-5 does not constitute a complete chain which is consistent with the guilt of A-4 and A-5 and incompatible with their innocence. Test Identification Parade TIP not substantive evidence Delay in holding Test Identification parade Effect of. Held: The decision of this Court is Soni v. State of Uttar Pradesh (1982) 3 SCC 368 (1) is more relevant to the facts of the case in hand. In Soni (Supra), the facts have not been discussed in the judgment which was rather brief but one thing is made clear that TS.I. Parade was held after a lapse of 42 days from the date of the arrest of the appellant. This Court held that such delay in holding the T.I. parade by itself throws a doubt on the genuineness of such identification and we respectfully agree with the view that it is difficult to remember the facial expression of the accused persons after such a long gap in the facts of this case. Therefore, the alleged identification of A-5 after

a gap of two months throws a doubt on the genuineness of such identification especially when P.W.3 had very little chance to see either A-4 and A-5. Indian Evidence Act (1 of 1872), Section 27 Reliability of materials discovered pursuant to facts deposed by accused in police custody. Held: The limited nature of the admissibility of the facts discovered pursuant to the statement of the accused under Section 27 can be illustrated by the following example: Suppose a person accused of murder deposes to the police officer the fact as a result of which the weapon with which the crime is committed is discovered, but as a result of such discovery no inference can be drawn against the accused, if there is no evidence connecting the knife with the crime alleged to have been committed by the accused. So the objection of the defence counsel to the discovery made by the prosecution in this case cannot be sustained. But the discovery by itself does not help the prosecution to sustain the conviction and sentence imposed on A-4 and A-5 by the High Court.

(2010) 3 MLJ (Crl) 489 (SC) Vishnu Dutt Sharma Vs Daya Sapra (Smt.) Negotiable Instruments Act (26 of 1881), Section 138 Code of Civil Procedure (5 of 1908)Order 7 Rule 11 Indian Evidence Act (1 of 1872), Sections 40,42,43 Effect of criminal Court verdict in civil proceedings - Principle of res judicate Whether applies. FACTS IN BRIEF: Both criminal and civil proceedings for recovery of money were initiated by appellant against the respondent. Criminal complaints were dismissed on that basis, respondent filed an application under Order 7 Rule 22 C.P.C for rejection of plaint which was dismissed by the trial Court. But, the High Court by the impugned order allowed the same on the ground of principles of res judiciate. QUERY: Whether a decision rendered by criminal Court will operate as res judiciate and act as bar for a civil proceeding? Held: If judgment of a civil Court is not binding on a criminal Court, it is incomprehensible that a judgment of a criminal Court will be binding on a civil Court. Principles of res judiciate are not applicable in the facts and circumstances of this case.

2010 4 L.W. 105 Fertilizers & Chemicals Travancore Ltd. Vs Regional Director, ESIC & Ors.

Employee State Insurance Act (1948), Section 75, 45 - B, 46, Impleadment of employees as parties in the proceedings Wherever any petition is filed by an employer under Section 75 of the Act, the employer has not only to implead the ESIC but has also to implead at least some of the workers concerned (in a representative capacity if there are a large number of workers) or the trade-union representing the said workers. Act has been enacted for the benefit of the workers to give them medical benefits, which have been mentioned in Section 46 of the Act Hence the principal beneficiary of the Act is the workmen and not the ESI corporation The ESI Corporation is only the agency to implement and carry out the object of the Act Hence, the workmen (or at least some of them in a representative capacity, or their trade union) have to be necessarily made a party / parties because the Act is a labour legislation made for the benefit of the workmen. In this case, ESI Court should have itself made a proper investigation of the facts after getting evidence from the parties, including the workmen concerned, and after impleading them as party in the petition, it should have determined the question as to whether the persons concerned were the employees of the appellant or not. Impugned judgment and order of the High Court as well as the order dated 4.2.1993 passed by the Employees Insurance Court set aside and matter remanded to the Insurance Court for deciding the same afresh after impleading some of the workmen, if not all of them, or their trade union in a representative capacity - Needless to say, the Employees Insurance Court will grant an opportunity to all the parties, including the alleged workmen, to lead documentary evidence or oral evidence and thereafter proceed in accordance with law. 2010 4 L.W. 114 M/s Jeevan Diesels & Electricals Ltd. Vs M/s Jasbri Singh Chadha (Huf) & Anr. C.P.C., Order 12, Rule 6/judgment on admission, Pleadings, Admissions, Ejectment Suit - Appeal to Supreme Court from judgment upon admission wherein the High Court came to a finding that a case of ejectment was made out against the appellant on the basis of admission of the case of the plaintiff - landlord in the written statement - Held: whether there is a clear, unambiguous admission by one party of the case of the other party is essentially a question of fact - Decision of this question depends on the facts of the case and the question, whether there is a clear admission or not cannot be decided on the basis of a judicial precedent. Pleadings, Admissions, Ejectment Suit - See C.P.C., Order 12, Rule 6/Judgment on Admission. The main case of the plaintiff - landlord is that the said lease deed had expired by efflux of time and notice to that effect was sent to appellant which was enclosed with the plaint... The stand of the respondents-plaintiffs before the Civil Court and also the High Court and before this Court and that the case of termination of tenancy has been admitted by the appellant in its written statement...It was denied by the appellant that there was any admission by them about termination or determination of tenancy. In the said reply it has been stated that in the suit issues are still to be framed and the case be tried in accordance with the Civil Procedure Code as there is no admission by the appellant and the respondents-plaintiffs have to prove its case with legally admissible evidence. Whether or not there is a clear, unambiguous admission by one party of the case of the other party is essentially a question of fact and the decision of the question depends on the facts of the case. This question, namely, whether there is a clear admission or not cannot be decided on the basis of a judicial precedent.

Held: It cannot be said that there is a clear admission of the case of the respondents-plaintiffs about termination of tenancy by the appellant in its written statement or in its reply to the petition of the respondents-plaintiffs under Order 12 Rule 6. It may be noted here that in this case parties have confined their case of admission to their case of admission to their pleading only. The learned counsel for the respondents-plaintiffs fairly stated before this Court that he is not invoking the case of admission 'otherwise than on pleading'. That being the position this Court finds that in the pleadings of the appellant there is no clear admission of the case of respondents-plaintiffs. 2010 -2 - L.W (Crl) 764 Amalendu Pal @ Jhantu Vs State of West Bengal I.P.C., Sections 498-A, 306, 107 - Appellant before Supreme Court was convicted and sentenced to imprisonment for 3 years under Section 498-A and for 8 years under Section 307 - Question for consideration is whether any of the clauses namely firstly along with Explanation 1 or more particularly thirdly with Explanation 2 to Section 107 is attracted in the facts and circumstances of the present case so as to bring the present case within the purview of Section 306 IPC. Held: Section 306, I.P.C., deals with abetment of suicide and Section 107 deals with abetment of a thing. Merely on the allegation of harassment without their being any positive action proximate to the time of occurrence on the part of the accused which led or compelled the person to commit suicide, conviction in terms of Section 306 IPC is not sustainable. In order to bring a case within the purview of Section 306 of IPC there must be a case of suicide and i the commission of the said offence, the person who is said to have abetted the commission of suicide must have played an active role by an act of instigation or by doing certain act to facilitate the commission of suicide - Therefore, the act of abetment by the person charged with the said offence must be proved and established by the prosecution before he could be convicted under Section 306 IPC. It is nowhere the case of the prosecution that the appellant had played any active role either in instigating or aiding the commission of suicide by the deceased for denying to accept A as the (Second) wife of the appellant. There is no direct evidence to show that the appellant had by his acts instigated or provoked the deceased to commit suicide and has not done any act which could be said to have facilitated the commission of suicide by the deceased - Court finds no reason to take a different view than what has been taken by the trial Court and the High Court as far as Section 498A IPC is concerned Appeal allowed in part. Conviction of the appellant under Section 306 set aside, but the conviction of the appellant under section 498A upheld. 2010 -2 - L.W (Crl) 779 Md. Ankoos & others Vs The Public Prosecutor, High Court of A.P.

I.P.C., Sections 302,307,109,148,120-B Criminal P.C., Sections 378, 386/Powers of High Court in an appeal against acquittal, Criminal P.C., Sections 172 (2), 162/Use of Case Diary in which cases permissible, Evidence Act, Section 145, Criminal Trial/Use of Case Diary. 77 persons were sent up for trial for the offences that arose out of the incident in which five persons were done to death by the villagers suspecting that deceased were practising Sorcery and due to that few deaths took place in the village - Sessions Court acquitted all the accused; High Court, in the appeal by the State confirmed the acquittal of 59 persons, but convicted 19 persons under Section 302 and sentenced them to imprisonment for life - Question considered was whether High Court was justified in reversing the judgment of acquittal and convicting the appellants for the offence punishable under Section 302 read with Section 149, IPC. Held: It has been repeatedly laid down that if two views are possible, the Appellate Court should not ordinarily interfere with the judgment of acquittal - Appellate Court shall not reverse a judgment of acquittal because another view is possible to be taken. Criminal court can use the Case Diary in the aid of any inquiry or trial but not as an evidence Section 172(3) places restrictions upon the use of Case Diary by providing that accused has no right to call for the Case Diary, but if it is used by the police officer who made the entries for refreshing his memory, or if the Court uses it for the purpose of contradicting such police officer, it will be so done in the manner provided in Section 161 of the Code and Section 145 of the Evidence Act. High Court fell into grave error in using the statements of PW-2 to PW-4 recorded under section 161(3) of the Code; particularly for contradicting PW-20 without affording any opportunity to him to explain the position. 2010 (4) CTC 546 Vinod Seth Vs Devinder Bajaj & Anr. Specific Relief Act, 1963 (47 of 1963), Section 14(1)(b) & (d) Code of Civil Procedure, 1908 (5 of 1908), Order 21, Rule 32(5) Agreements that are specifically enforceable can be executed as per provisions of C.P.C. Agreement styled as Commercial Collaboration Agreement which imposes few obligations on owner of land but imposes several obligations on builder and such obligations are dependant upon personal qualification and volition of builder cannot be specifically enforced Agreement if specifically enforced will entail minute supervision by Court and therefore not specifically enforceable Court cannot direct Plaintiff to file undertaking to pay damages to Defendant in event of Plaintiff being unsuccessful in Suit Court cannot assess any such damages during pendency of Suit. Specific Relief Act, 1963 (47 of 1963), Section 21 Plaintiff sued for Specific Performance but did not claim compensation Compensation cannot be awarded as it is barred under Section 21. Plaintiff filed suit for Specific Performance of oral agreement whereby Defendant would convert his lease hold property to free hold property and deliver possession to Plaintiff who would put building at his costs and expenses and take one portion and deliver back other portions to Plaintiff and

also pay Rs.3,71,000. Plaintiff paid Rs.51,000 to Defendant as token advance. Plaintiff filed Suit after three years. No interim reliefs were sought. Court suo moto directed Plaintiff fails in Suit. Such order upheld by Division Bench. Supreme Court removed shackles of lis pendens by passing appropriate directions. Held: It is doubtful whether the collaboration agreement, as alleged by the Appellant, is specifically enforceable, having regard to the prohibition contained in Section 14(1)(b) and (d) of the Specific Relief Act, 1963. The agreement propounded by the Appellant is not an usual agreement for sale/transfer, where the contract is enforceable and if the Defendant fails to comply with the decree for specific performance, the Court can have the contract performed by appointing a person to execute the deed of sale/transfer under Order 21, Rule 32(5) of the Code of Civil Procedure (Code for short). The agreement alleged by the Appellant is termed by him as a Commercial Collaboration Agreement for development of a residential property of the Respondents. Under the alleged agreement, the obligations of the Respondents are limited, that is, to apply to DDA for conversion of the property from leasehold to freehold, to submit the Construction Plan to the concerned authority for sanction, and to deliver vacant possession of the suit property to the Appellant for development. But the Appellant/Plaintiff has several obligations to perform when the property is delivered, that is, to demolish the existing building, to construct a three-storeyed building within one year in accordance with the agree plan, deliver the first and second floors to the Respondents and also pay a token cash consideration of Rs.3,71,000/-. The performance of these obligations by Appellant is dependant upon his personal qualifications and volition. If the Court should decree the Suit as prayed by the Appellant (the detailed prayer is extracted in para 3 above) and direct specific performance of the Collaboration Agreement by Respondents, it will not be practical or possible for the Court to ensure that the Appellant will perform his part of the obligations, that is demolish the existing structure, construct a three-storeyed building as per the agreed specifications within one year, and deliver free of cost, the two upper floors to the Respondents. Certain other questions also will arise for consideration. What will happen if DDA refuses to convert the property from leasehold to freehold? What will happen if the Construction Plan is not sanctioned in the manner said to have been agreed between the parties and the Respondents are not agreeable for any other plans of construction? Who will decide the specifications and who will ensure the quality of the construction by the Appellant? The alleged agreement being vague and incomplete, require consensus, decisions or further agreement on several minute details. It would also involve performance of a continuous duty by the Appellant which the Court will not be able to supervise. The performance of the obligations of a developer/builder under a collaboration agreement cannot be compared to the statutory liability of a Landlord to reconstruct and deliver a shop premises to a tenant under a rent control legislation, which is enforceable under the statutory provisions of the special law. A collaboration agreement of the nature alleged by the Appellant is not one that could be specifically enforced. Further, as the Appellant has not made an alternative prayer for compensation for breach, there is also a bar in regard to award of any compensation under Section 21 of the Specific Relief Act.

2010 (4) CTC 573 Speedline Agencies Vs T. Stances & Co. Ltd. Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 (T.N. Act 18 of 1960), Section 10(3)(a)(iii) - "Own use and occupation" - Phrase has to be construed widely and given liberal interpretation to include a Company wanting to expand business and amalgamating with another Company - Effect of amalgamation of Landlord-Company - Whether Transferee Company is entitled to avail benefits of eviction order passed under Section 10(3) and pending Revision Petition in High Court - Scheme of Amalgamation approved by Company Court providing for proceedings of Transferor Company to be continued by Transferee Company -

When Transferor company merged in entirety with Transferee Company and cause of action for eviction was not passed in favour of Transferor Company. Facts: The Landlord, a Company moved for eviction on the ground of own use and occupation. The Rent Controller ordered eviction and the Appellate Authority also confirmed the same and dismissed the Appeal. The tenant filed a Revision before the High Court and pending the Revision, the Landlord Company, in pursuance of a Scheme of Amalgamation, amalgamated with a new Company. The cause title was permitted to be amended by the High Court noting the objections of cause title was permitted to be amended by the High Court noting the objections of the tenant. The Revision was subsequently dismissed by the High Court, confirming the order of eviction. In the Appeal before the Hon'ble Supreme Court the tenant contended that the High Court ought to have taken note of subsequent event viz., the amalgamation of the Landlord Company with a Transferee Company and held that the new Company was not entitled to the benefits of the order of eviction. Held: In a case where a Company is a tenant, amalgamation is the cause of action for the Landlord to sue the Tenant-Company for eviction on the ground of subletting without the consent of the Landlord. In the present case, the Petition by the Landlord for eviction of the Tenant was filed on 03.04.1987. The cause of action has no relation to amalgamation, irrespective of whether it is prior or subsequent to filing of the Application for eviction. The Rent Controller ordered eviction on 09.04.1992. The Appeal of the tenant was disposed of by the Appellate Authority on 10.04.2003. The rights of the Landlord are to be determined as on the date of the Application for eviction. The order of eviction crystallized the rights of the Landlord. The Tenant has filed the Revision in the High Court on 18.08.2003. During the pendency of the Revision petition, the order for amalgamation under the Companies Act passed by the High Court was made on 26.02.2006 which is a subsequent event. Revision Petition was disposed of by the High Court on 05.08.2009. As rightly pointed out by Mr. Parasaran, learned Senior Counsel, had the Revision Petition been disposed of before 26.02.2006, this contention would not have arisen at all. The delay in the disposal of the Revision Petition should not prejudice the vested rights of the Landlord under the decree of the Rent Controller confirmed by the Appellate Authority. 2010 (7) SCALE 293 Afcons Infrastructure Ltd. & Anr Vs Cherian Varkey Construction Co. (P) Ltd. & Ors. Civil Procedure CPC Section 89; Order X Rules 1A, 1B & 1C Arbitration and Conciliation Act, 1996 Section 73 & 74 Legal Services Authorities Act, 1987 Section 21 Settlement of disputes outside the court Reference to arbitration where there is no pre-existing arbitration agreement between the parties consent of all the parties to the suit will be necessary, for referring the subject matter of the suit to arbitration u/s 89 of the Code Works contract for construction of certain bridges and roads Appellants sub-contracted a part of the said work to first respondent Agreement between appellants and first respondent did not contain any provision for reference of disputes to arbitration First respondent filed a recovery suit against appellants In the said suit an order of attachment was made in regard to a sum of Rs.2.25 crores First respondent filed an application u/s 89 of the Code praying that the court may formulate the terms of settlement and refer the matter to arbitration Appellants filed a counter to the application submitting that they were not agreeable for referring the matter to arbitration or any of the other ADR processes u/s 89 of the Code holding that the dispute should be settled by arbitration Trial Court formulated issues and referred the matter to arbitration Revision High Court held that Section 89 of the Code permitted the court, in appropriate cases, to refer even unwilling parties to arbitration High Court also held that concept of pre-existing arbitration agreement was inapplicable to reference u/s 89 of the Code Whether consent of all parties to the suit is necessary for reference to arbitration u/s 89 of the Code Allowing the appeal.

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2010 (7) SCALE 490 Bhagmal & Ors Vs Kunwar Lal & Ors Civil Procedure CPC Order IX Rule 13 r/w 151 Limitation Act, 1963 Article 12 Ex parte decree Delay in filing application for setting aside the decree Condonation of Failure to file a separate application u/s 5 of Limitation Act Effect of Suit for declaration of title, possession and permanent injunction in respect of house in dispute Court proceeded ex parte and decree came to be passed on 19.04.1985 It was only when execution proceeding started that appellants-defendants allegedly came to know about the decree and moved an application on 08.07.1988 for setting aside the ex parte decree Appellants defendants pointed out that there was a compromise effected on 10.12.1983, which was an out of Court settlement, wherein it was agreed between the parties that respondent plaintiff would withdraw the suit Appellants defendants did not attend further proceedings while respondent plaintiff continued with the suit According to appellate-defendants they came to know about the decree when they were served with the execution notice Application under Order IX Rule 13 r/w 151 of the Code was allegedly moved within 30 days from the date of their knowledge of ex parte decree Trial Court dismissed the application as barred by time Appeal allowed by the appellate Court High Court set aside order of the appellate Court holding that application u/s 5 of the Limitation Act was not filed Whether impugned judgment of the High Court is sustainable Allowing the appeal. 2010 (7) SCALE 502 Vijay @ Chinee Vs State of Madhya Pradesh Criminal Law IPC Section 376/34 Evidence Act, 1872, Section 114-A Gang rape Sole evidence of prosecutrix Minor discrepancies of trivial matters Test identification parade, failure to hold Absence of injuries on personal of prosecutrix Non-production of report of Radiological Test for determination of age of prosecutrix Nothing on record to establish consent of prosecutrix FIR lodged most promptly alleging that prosecutrix had been subjected to gang rape by appellant and six others at about 6.00 p.m. on the same date Evidence of prosecutrix that accused showed her a knife and then they raped her turn by turn Trial Court convicted all the accused persons for offence u/s 376/34, IPC On appeal, High Court confirmed conviction of appellant and one other co-accused while acquitting the remaining four accused Prosecutrix was aged between 12 and 14 years as stated by the medical report She was sent for a Radiological Test but its report could not be produced before the trial Court While appreciating evidence of prosecutrix, High Court held that there were minor discrepancies of trivial matters which did not affect core of the prosecution case Whether courts below were justified in convicting appellant on basis of evidence of prosecutrix Held, Yes Whether failure to hold Test Identification Parade was fatal to the prosecution case Held, No Whether it being a case of non-resistance, conduct of the prosecutrix can be held as unnatural Held, No Dismissing the appeal. 2010 (7) SCALE 545 S. Arul Raja Vs State of Tamil Nadu Criminal Law IPC Section 302, 307 & 120 B Evidence Act, 1872 Section 10 & 32 Cr.P.C. Section 164 Criminal conspiracy to murder State of a fellow conspirator Admissibility Appellant had been accused of hatching a criminal conspiracy wherein he engaged A-1 and deceased accused B, to murder on AA Prosecution case that in pursuance of this alleged conspiracy, AA was murdered by A-1 to A-4, along with deceased accused B All of them were

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subsequently arrested, with the exception of A-1 and deceased accused B During investigation, a team of police officials entered a flat that housed A-1 and B, and attempted to apprehend them A-1 was arrested, while B consumed cyanide Both were taken immediately to a hospital, where B died Executive Magistrate went to the hospital upon receiving a written requisition to record dying declaration of A-1 in his statement, A-1 implicated appellant in the crime, and declared that he was given a contract killing Execution Magistrate who took a dying declaration from A-1 also noted that he was hale and healthy A-1 was discharged from the hospital on the same day High Court convicted the appellant on the basis of this declaration of A-1 that implicated him in a conspiracy to murder Whether there existed a motive for the appellant to murder deceased Held, No Whether the appellant conspired with the other accused to commit the crime Held, No Whether statement of A-1 could constitute a valid dying declaration or a confession to implicate appellant for murder Held, No Allowing the appeal.

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HIGH COURT CITATIONS

2010 -4-L.W. 35 Yed Dowlath Hussain (Died) & 6 others Vs Khatoon Bi(since deceased ) & 13 others Muslim Law / Minors property, Guardian, who is, alienation by minors husband, validity, Specific Relief Act, Section 31. As per Muslim law, the minors father or the fathers father alone can appoint the guardian or the Court has to appoint anyone of the persons mentioned in the said provision as guardian for the minor. Husband of a minor wife can never be a guardian to her, unless he is appointed by the Court - Husband of the first respondent acted as guardian for his minor wife, who was then aged 16 years, for which he was not competent ExA.3 sale deed is void ab initio. Since the husband of the first respondent was neither recognized as a guardian by law nor had he been appointed as a guardian for the property of his minor wife Section 31 of the Specific Relief Act Since Ex.A.3 is a void document which is non-est in the eye of law, it need not be set aside. Suit has been filed for declaration of title to the suit property and for delivery of possession of the same. It is keenly contended by the appellants said that at the time of Ex.A.3 sale that at the time of Ex.A.3 sale deed, the first respondent was 16 years and within three years from the date of her majority or within three years from the date of her knowledge, she should have got the sale deed set aside by any manner known to law and since she has not done so, the sale deed Ex.A.3 has become valid, in respect of which she could not project any objection. Conversely, it is argued on behalf of the respondents that in Muslim law, the husband of the minor wife cannot act as guardian for her property and the sale deed itself is void ab-inito and the said document has been void from the inception. As per law, it need not be set aside. It is profitable to see the position in Mahomedan law as far as the guardianship is concerned. Held: As per Muslim law, the minors father or the fathers father alone can appoint the guardian or otherwise, the Court has to appoint anyone of the persons mentioned in the said provision as guardian for the minor. Others, whatever may be the relationship with the minor, could not act as guardian for the minor and to deal with his property. If there is violation or deviation from this provision, then the transaction is inevitably to be declared as void. Husband of a minor wife can never be a guardian to her, unless he is appointed by the Court.

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2010 -4-L.W. 44 Kokila Kaliamoorthy Vs K. Mani others Chennai Metropolitan Development Control Rules, Easements Act (1882), Injunction / Mandatory injunction for demolition of alleged unauthorized construction, Easements. Suit was filed for mandatory injunction directing the defendants to demolish the unauthorized construction, for permanent injunction restraining the first defendant from putting up any unauthorized construction Direction was also sought against the second defendant not to sanction any plan or approval in the process of the regularization of the illegal and unlawful Act of the first defendant. Held: Report submitted by the Commissioner of Corporation of Chennai based on the personal inspection done by his subordinate official is proper. Plaintiff, who could not establish that the easementary right of light and air was adversely affected, cannot supervise the plan sanctioned by the authority concerned and the structure put up by the first defendant If any deviation has been made, it is for the authorities to take personal inspection and remove the same in accordance with the rules. Material part of the deviation made by the first defendant from that of the sanctioned plan was set right when he obtained sanctioned plan A partial blockage of light or air on account of construction made by the opponent party cannot give a cause of action to raise a suit for easementary right. 2010 -4-L.W. 71 B. Leelavathi Vs Balaji others Limitation Act (1963), Article 54/Plea of limitation in specific performance of sale, Scope of, Specific Performance / Specific performance for sale, refusal by defendant / Owner as preliminary issue, determination for limitation, Scope of. CRP under Article 227 was filed by first defendant against the order of the Fast Track Court (Dindigul) in a suit for specific performance, rejecting the contention of first defendant to decide plea of limitation as a preliminary decide.

Held: On the date of filing of the suit, the plaintiffs have known the refusal made on the side of the defendant Present case comes within the purview of the second limb of Article 54 If it is admitted in plaint to the effect that performance has been refused by the concerned defendant, the plea of limitation raised on the said of the concerned defendant could be determined as a preliminary issue Order of Fast Track Court (Additional District Court), Dindigul is set aside

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and the it is directed to decided the plea of limitation raised on the said of the revision petitioner / defendant as a preliminary issue. (2010) 3 MLJ (Crl) 476 Nataraj Kumar Vs Regional Passport Officer, Passport Act (15 of 1967), Section 10 Renewal of passport For a limited period Pendency of Criminal case against petitioner Held, no right to claim renewal of passport for block period of ten years. FACTS IN BRIEF: The petitioner facing a criminal case of forgery registered by the CBI, filed a writ petition for a direction to the Passport Officer to renew his passport for a normal period of ten years. QUERY: Whether pendency of a criminal case is a ground to deny renewal of passport for a block period of ten years? Held: By Rule 12 of the Passports Rules, 1980, though it is stated that ordinarily, a passport for persons other than children below the age of 15 years shall be in force for a period of 10 years or 20 years as the case may be. In this case, the petitioners passport was admittedly impounded by the authorities due to his involvement in the criminal case and the same was returned pursuant to the order of this Court. Section 10 empowers the authority to vary the conditions as stated in Section 10(e). The variation in the passport restricting it to one year is perfectly valid. From the statutory provisions contained in the Passport Act and the guidelines contained in the Passport Manual, 2001 it is evident that passport can by given/renewed to a person, who is accused in a criminal case, only for a limited period, that too with an undertaking that the holder of the passport shall, if required by the Court concerned, appear before it at any time during the continuance in force of the passport so issued. It is not the case of the petitioner that the criminal case is over and the petitioner is acquitted. In such circumstances, the petitioner has no right to claim renewal of passport for the block period of ten years. 2010 4 L.W. 119 C. Seerangan Vs M. Subramaniam This civil petition is filed against the fair order and decretal order dated 18.1.2008 made in CMA No. 23 of 2008 on the file of the Principal Sub Court, Erode imposing onerous conditions while reversing the fair and decretal order dated 10.08.2007 made in I.A. No. 73 of 2007 in O.S.No. 291 of 2004 on the file of the District Munsif cum Judicial Magistrate, Perundurai. C.P.C., Order 9, Rule 13/Setting aside exparte order, Conditional order imposing of condition for depositing 50 per cent of suit amount challenged in revision Held: imposition of deposit of 50% of the suit amount as a condition precedent for getting the ex parte decree set aside is onerous - It has to be remembered that is not even a suit under Order

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37 of CPC - Contention of the defendant was that the suit pro note is a fabricated one - Keeping that in mind, the onerous condition imposed by the lower Court has to be set aside. However, this Court cannot lose sight of the fact that there were laches on the part of the defendant in participating in the proceedings as well as in getting the I.A. processed before the Court diligently - Abominable and reprobative attitude on the part of some litigants in filing applications for name sake and keeping them alive without getting them numbered, has to be deprecated in unmistakable terms. As such, for that, Court would like to impose a cost of Rs. 5,000/- as condition precedent for getting the ex parte decree set aside by setting aside the onerous condition imposed by the lower Court in ordering deposit of 50% of the suit amount in Court. 2010 4 L.W. 129 M/s. Bafna Developers, a registered partnership firm Regn. No.458/95 rep. Vs D.K. Natarajan & others C.P.C. Order 2 Rule 2/Bar of suit, Specific Performance - In order to attract Order 2 Rule 2 C.P.C, the earlier suit should be founded on the same cause of action on which the subsequent suit it based and if in the earlier suit the plaintiff has omitted to sue in respect of or intentionally relinquished any portion of his claim, he will not be subsequently entitled to sue in respect of the portion of his claim so omitted or relinquished - Order 2 Rule 2 C.P.C. is directed in securing the exhaustion of relief in respect of a cause of action. Test should be whether the cause of action on which the present suit for specific performance was filed, was available to the Plaintiff - In our considered view, the cause of action is identical and the present suit of specific performance is barred under Order 2 Rule 2 C.P.C. - Upon analysis of evidence and materials on record, the trial Court rightly held that the suit for specific performance is not maintainable and is clearly barred by limitation - Finding of the trial Court on Issue No.2 is also reversed and it is held that the suit is barred under Order 2 Rule 2 C.P.C. - Appeal dismissed. Specific Performance - C.P.C., Order 2, Rule 2/Bar of suit. 2010 4 L.W. 148 Shanmugam Vs Elumalai Gounder & others (Indian) Evidence Act, Section 90, Presumption of due execution of the original, Scope, practice / Marking of Documents. Language of section 90 clearly indicates that the production of the particular document may be necessary for applying statutory presumption - If the document produced was a copy admitted under section 65 as secondary evidence and it was produced from proper custody and was over 30 years old, then the signature authenticating the copy might be presumed to be genuine but the production of the copy was not sufficient to justify the presumption of due execution of the original under section 90 - Though the documents Exs. B-1 and B-2 sale deeds are of the year 1933 and 1931 respectively, the said documents are only the certified copies of the original sale deeds.

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Consent given by a party for marking a document does not dispense with either the proof of contents of the document or the truth or otherwise of the contents - Mere marking of a document does not dispense with the proof of the said documents - Admissibility of a document into evidence and proof of genuineness of such document are different issues. Practice/Marking of Documents - See (Indian) Evidence Act, Section 90, Presumption of due execution of the original Scope. 2010 4 L.W. 162 Mani Vs Chellam Hindu Marriage Act (1955)/ Interim maintenance order / Execution proceedings, Maintainability - Revision was filed against order passed on Execution Petition for recovering the interim maintenance ordered earlier in the matrimonial proceedings, which was contested by the revision petitioner herein on various grounds - Contention urged on behalf of revision petitioner (husband) was that earlier the very H.M.O.P. No.38 of 2003 itself was withdrawn by the revision petitioner herein and in such a case the interim maintenance awarded in that H.M.O.P. cannot be recovered by the respondent - Held: Law is quit well settled that interim maintenance awarded could be recovered by the beneficiary concerned if the said amount has not been paid by the person bound to pay. In this case it is evident that in view of the H.M.O.P. No.38 of 2003 having been not pressed by the revision petitioner that H.M.O.P. was dismissed and that it does not mean that the revision petitioner suo motu legally exonerated himself from the liability which he incurred to pay interim maintenance as per the order of the Court. 2010 4 L.W. 180 Murugan and Shankar Vs K. Elumalai and M. Kannan Limitation Act (1963), Section 5, C.P.C., Order 9, Rule 13/Delay of 586 days in filling the petition to set aside the ex parte decree - Revision against order dismissing petition to condone delay of 586 days in seeking to set aside ex pare decree Held: It is clear that the petitioners had received the suit summons, despite the same, they engaged a counsel, who was practicing at Egmore, Chennai, but they were keeping quiet without knowing anything about the progress of the case - Strangely, the petitioners have not stated the name of the Advocate, who was engaged by them - There is an inordinate delay of 586 days in filing the petition under Order 9 Rule 13 CPC - Defence raised by the petitioners that they were busy with their business, hence they could not file the petition - As the petitioners have admittedly received the suit summons, it is their duty to take follow up action and know the progress of the case and instruct their counsel as and when required - Petitioners cannot shift the entire burden on their counsel to defend their case, even without disclosing the name of the Advocate and raise it as a defence to condone the delay of 586 days in filing a petition to set aside the exparte decree -Non-mentioning of the name of the counsel, date and other details regarding the same would show that the reason assigned by the petitioners cannot be construed as bonafide. There is no material available in favour of the petitioners to show that the first respondent / plaintiff had played fraud on the court below - There is no error or infirmity in the impugned

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order passed by the court below. Suit was not decided on merits and the relief sought for by the first respondent / plaintiff was for recovery of possession of the shop - Petitioners have claimed title to the property stating that they are the owners of the property in their affidavit filed before the court below, without any supporting documents to establish their claim - Suit was filed by the first respondent / plaintiff only for recovery of possession, without a prayer for declaration of title and the suit was also not decided on merits - On the aforesaid circumstances, it is made clear that the dismissal of this revision petition is not a bar against the petitioners / defendants for filing a comprehensive suit to establish their title, by way of declaration of title and recovery of possession of the property. 2010 (4) CTC 640 Vekataraman others Vs N. Munusamy Naidu Evidence Act, 1872 (1 of 1872),Section 115 - Law of Estoppel - Applicability - Mutation in Records - During Settlement proceedings Revenue entries were mutated in favor of defendant Plaintiff failed to raise an objection before authorities, even though they had knowledge about mutation of Revenue entries - Plaintiff ought to have raised objection, otherwise he is estopped from claiming right over property. FACTS: The plaintiffs filed a Suit for passing of the preliminary decree, allotting them half share in the suit property and also for mesne profits against the defendants. The learned District Munsif cum Judicial Magistrate, Ambathur, passed preliminary decree and directed mesne profits be determined on separate Application to be filed under Order 20, Rule 12, C.P.C. by the plaintiff. Aggrieved by the decree passed by the Trial Court Defendant filed a First Appeal in A.S. No.13 of 2008 on the file of the Sub-Court, Poonamallee and the Appellate Court on consideration of materials, allowed the Appeal by dismissing the Original Suit. Hence, the defeated Plaintiffs before the Appellate Court have preferred the present Second Appeal before Honourable High Court under Section 100 of Code of Civil Procedure. Held: It is the contention of the Respondents/Defendants that during the proceedings before the Settlement Tahsildar in the year 1969, the forefathers of the plaintiffs did not state anything with regard to the suit property, even though they spoke about their interest and enjoyment over other properties and hence they are estopped from claiming title or right over the suit property. In support of that contention they have produced Ex.B-2 proceedings of the Settlement Tahsildar dated 10.3.1969 wherein Parthasarathy Naidu S/o Ramanujulu Naidu has deposed only about Survey No. 4/1 and not with regard to Survey No. 18/2. The arguments as to the estopped is controverted by the learned Senior Counsel Mr. S. Parthasarathy appearing for the Appellants, who says that no estoppel would operate against the Appellants with regard to the earlier proceedings before the Revenue Authorities and that mutation of names in the revenue records would not estop these Appellants from laying claim over the properties. For this proposition, he placed reliance of a Division Bench decision of Jammu and Kashmir High Court in Ashan Dar and others v. Mohd. Dar, AIR 1963 J &K 15 in which it is held thus:

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"In order that estoppel record may arise out of a judgment or order, the Court which pronounced the judgment or order must have had inherent jurisdiction to do so. Lack of inherent jurisdiction deprives the judgment or order of any effect. Such a judgment or order cannot operate as an estoppel even against the person who sought the assistance of the Court whose jurisdiction is impugned. Therefore, an order passed by a Revenue Officer deciding a question of title to property or transferring tile being wholly devoid of jurisdiction a plea of estoppel by record cannot be founded on an order so wholly devoid of inherent jurisdiction. Mere consent of a party to the making of the order in question by the Revenue officer will not give that order legal force and validity." 2010 (4) CTC 690 Southern and Rajamani Transport Private Limited, rep. Vs R. Srinivasan others Constitution of India, Articles 226 & 227 - Code of Civil Procedure, 1908 (5 of 1908), Order 7, Rule 11 - Striking off Plaint - Rejection of Plaint - Maintainability of Revision Petition without availing alternative remedy under Order 7, Rule 11 of C.P.C. - Suit for Specific Performance Revision Petitioners were arraigned as parties even though they had nothing to do with property - Held, alternative remedy under C.P.C. is not a bar to invoke jurisdiction under Article 227 of Constitution of India - Jurisdiction under Article 227 can be invoked: (a) to prevent abuse process of Law (b) to prevent miscarriage of justice (c) to prevent grave injustice (d) to establish both administrative as well as judicial power of High Court - Civil Revision Petition under Article 227 is maintainable to strike off Plaint - Civil Revision Petition allowed. FACTS: Revision Petitioner filed a Civil Revision Petition to strike off the Plaint filed on the file of District Court, without availing alternative remedy under Order 7, Rule 11 of C.P.C. Held: It is an everlasting and also an axiomatic principle of law that subsequent purchaser will step into the shoes of his vendor, who entered into a Sale Agreement with prior purchaser. Under the said circumstances, subsequent purchaser is also a necessary and proper party to a Suit instituted for Specific Performance. It has already been assorted the circumstances under which Article 227 of the Constitution of India can be invoked by a High Court. In the instant case, a grave injustice has been done to the Revision Petitioners/Defendants 1,2,3,5,6,8, to 24 and 26 to 37 by way of impleading them as parties to Original Suit No. 3 of 2010, even though there is no nexus betwixt them and the First Respondent/Plaintiff. Of course it is true than an efficacious relief is available under Order 7, Rule 11 of the Code of Civil Procedure, 1908. But at the same time, since miscarriage of justice as well as injustice have been caused to the Revision Petitioners/Defendants 1,2,3,5,6,8 to 24 and 26 to 37, their approach by way of filing the present Civil Revision Petition to the High Court so as to ventilate their grievances is legally maintainable. Therefore, viewing from any angle, the entire argument advanced by the learned Counsel appearing for the First Respondent/Plaintiff is sans merit, whereas the argument advanced by the learned Senior Counsel appearing for the Revision Petitioners/Defendants 1,2,3,5,6,8 to 24 to 37 is really having subsisting force.

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2010 (4) CTC 705 Kasturi other Vs Saravanan @ Sakthi Saravanan Vs Bommi other Saravanan @ Sakthi Saravanan Code of Civil Procedure, 1908 (5 of 1908), Order 9, Rule 7 - Limitation Act, 1963 (36 of 1963), Articles 137 & 123 - Partition Suit - Revision Petitioners/Defendants in Suit were set ex parte Petition to set aside ex parte order was filed by Revision Petitioners - Lower Court dismissed Application on ground that Application to set aside ex parte order ought to have been filed within 3 years - Held, no limitation is prescribed and it is open to Court to condone and set aside ex parte order at any stage - Hence, there is no limitation for filing petition under Order 9, Rule 7, C.P.C. - Judgment reported in Palani Nathan v. Devanai Ammal, 1989 (2) MLJ 259 followed; and judgment reported in Rajaji v. R. Krishnaji, 2005 (3) MLJ 379 and C.L. Cleetus v. South Indian Bank Ltd., AIR 2007 Ker. 301 distinguished. FACTS: Revision Petitioner' Application to set aside ex parte order was dismissed on ground that Application to set aside ex parte order should be filed within 3 years. Aggrieved by the order of lower Court, Petitioners filed Civil Revision Petition under Article 227 of Constitution of India. Held: No doubt, in the judgment reported in the case of Rajaji v. R. Krishnaji, 2005 (3) MLJ 379, the learned Judge distinguished the difference between the exparte decree and the ex parte order and held that Article 123 shall apply only to ex parte decree or ex parte order, which have the force of decree and in so far as setting aside the ex parte order is concerned, the residuary Article 137 will apply which prescribes three years period and therefore, the Petition filed after a lapse of three years cannot be entertained. But, as pointed by the learned Counsel appearing for the Petitioner, in the judgment of this Court reported in the case of Pilla Reddy and others v. Thimmaraya Reddy & others, 1997 (1) MLJ 37 and in the case of Palani Nathan v. Devanai Ammal, 1989 /(2) MLJ 259, wherein the Two learned judges of this Court have held that there is no time prescribed to set aside the ex parte order and an ex parte order can be set aside at any time and the learned Judges referred the judgments of the Honourable Supreme Court in the case of Sangram Singh v. Election Tribunal, Kotah, 1955 (1) MLJ SC 13 : AIR 1955 SC 425 and also other judgments of this Honourable Court and held that there is no limitation for setting aside the ex parte order. The aforesaid two judgments were not brought to the knowledge of the learned Single Judge who decided the case reported in Rajaji v. R.Krishnaji, 2005 (3) MLJ 379. In the judgment reported in the case of Plant Nathan v. Devanai Ammal, 1989 (2) MLJ 259, this Court had held that for filing the Application under Order 9, Rule 7, C.P.C., no limitation is prescribed and it is open to the Court to condone her absence and set aside the ex parte order and permit her to take part in the proceedings at any stage of the proceedings. Further relying upon the Supreme Court judgment reported in AIR 1955 SC 425, wherein their Lordships have held that there is no limitation for filing the Petition under Order 9, Rule 7C.P.C. Therefore, as per the judgment of the Honourable Supreme Court, which was followed in Palani Nathan v. Devanani Ammal, 1989 (2) MLJ 259, in my opinion, the lower Court erred in following the judgment of the Kerala High Court and dismissed the Petition. According to me, the aforesaid two judgments of our High Court was not brought to the notice of the learned Judge who decided the case in Rajaji V.R. Krishnaji, 2005 (3) MLJ 379 and the earlier two judgments of this Court followed the judgment of the Honourable

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Supreme Court and hence, I am bound by the judgment of the Honourable Supreme Court, which was followed in Pilla Reddy and others v. Thimmaraya Reddy and others, 1997 (1) MLJ 37 and Palani Nathan v. Devanai Ammal, 1989 (2) MLJ 259. 2010 -2 - L.W (Crl) 792 Sathyavani Ponrani Vs Samuel Raj Constitution of India, Article 21/Fair and Free Trial, rights of the victim, Criminal Trial/Victim's right to be heard and to take part in criminal proceedings, Bail, Scope, Access Jurisprudence/Constitutional Fundamental right, I.P.C., Sections 304-B, 498-A, Bail/Anticipatory, Intervening by the father of the deceased suicide victim, Permissibility, Criminal P.C., Section 438/Anticipatory Bail, Criminal P.C., Section 301, 302, 24(8)/Application by deceased victim's father seeking to intervene in application for Anticipatory Bail, Discretion, exercise of, by Court, Considerations, Criminal P.C. (Amendment Act 5 of 2009), Section 24 (8) Proviso, Appointment and Functions of Public Prosecutor, Proviso was introduced in order to help the victim and to have active participation of the victim in the Justice delivery system. Interpretation of Statutes/Purposive, harmonious and liberal construction. Lawyer can be engaged to argue and in an appropriate case with the permission of the Court to examine the witness - Section 301 speaks about instructing a pleader whereas Section 24(8) Proviso speaks about engaging a lawyer. Therefore under Section 301 a party can instruct whereas under Section 24(8) Proviso a victim can engage a lawyer and conduct the case along with the Public Prosecutor. On a consideration of the principles and applying the same to the issue involved, this Court is of the opinion that there cannot be any bar for a victim to engage a lawyer and permit him to conduct the case by way of assisting the prosecution. Even a third party could be permitted to file appropriate application to cancel Bail - Therefore the definition of victim would mean a person who represents the victim. As no prejudice would be caused, interest of justice would be served with a view to sustain the public confidence in the criminal jurisprudence; if a victim is permitted in a given case to engage a lawyer and present his case along with the P.P. Section 301 and Proviso under section 24(8) are mutually complimentary and not conflicting with each other and therefore there is no bar for engaging a lawyer to assist the prosecution. Discretion of the Court in invoking proviso under Section 24(8) is a judicial discretion. Engaging a lawyer in accordance with Proviso under Section 24(8) would mean permitting him to argue along with the P.P. and also in a given case even to examine a witness, of-course with

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the permission of the Court - Court shall not allow any plea contrary to the case of the prosecution at the instance of the victim while assisting the prosecution. Discretion of the Court in invoking proviso under Section 24(8) is a judicial discretion. Engaging a lawyer in accordance with proviso under Section 24(8) would mean permitting him to argue along with the P.P. and also in a given case even to examine a witness, of-course with the permission of the Court - Court shall not allow any plea contrary to the case of the prosecution at the instance of the victim while assisting the prosecution. Word 'victim' would also include a legitimate and genuine person representing a victim Contention was urged before the Court that in a given case the trial Court can also call upon a victim to engage a lawyer if in its opinion the same is required for the proper conduct of the case - In a given case the Court can on its own appoint a lawyer if it is of the opinion the same is required for the proper conduct of case. Application seeking permission under proviso to Section 24(8) cannot be rejected without even numbering the same but should be considered on merits - Order rejecting an application seeking permission to assist the prosecution must be supported by reasons. 2010 -2 - L.W (Crl) 831 N. Rajangan Vs M/s. Centurian Bank Ltd., Negotiable Instruments Act, Section 138, Hire Purchase / Hypothecation, Cheques issued not honoured, liability under Section 138 of N.I. Act, Scope. Contention of the petitioner in the Crl. O.P. is that as per the hypothecation agreement between the petitioner and respondent in order to settle the liability, the petitioner issued cheques for equal monthly instalments and upon non-payment, respondent herein seized the vehicle and also repossessed the same, and also sold the same in auction and the sale proceeds were also received by the respondent herein. It was submitted further by the learned counsel appearing for the petitioner that after the repossess and sale of the vehicle, the amount payable to the respondent is automatically varied and the cheques issued in connection with the earlier liability cannot be used by the respondent herein. Held: once the financier had exercised the option of seizure of the vehicle, the postdated cheques obtained from the purchaser cannot be presented for encashment after the seizure Owner has to take recourse to other legal remedies for recovery of the balance amount. Present case filed on the basis of the postdated cheques issued by the petitioner does not attract offence under Section 138, and hence, the same is liable to be quashed. Hire Purchase/Hypothecation, Cheques issued not honoured, liability under Section 138 of N.I. act, Scope - See Negotiable Instruments Act, Section 138.

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2010 -2 - L.W (Crl) 872 Jacob Chacko Theketala Vs State of Tamil Nadu, Represented by CBI

I.P.C., Section 255, 258, 420, Criminal P.C., Section 428/Set off benefit in respect of period of detention, Scope - Appeal was preferred by A4 contending that A1 and A3 who also pleaded guilty and were convicted by the trial Court preferred appeals before this Court and in the appeals preferred by them they were acquitted from the charge under Section 255 I.P.C. for the reason that the prosecution case did not constitute an offence under Section 255 I.P.C., and similar benefits must be extended to this appellant also - Held: accused was being confined in jail throughout the trial period and being produced before the trial Court periodically, merely because he was not brought as an under-trial prisoner on record for his no fault, he should not be made to suffer. Though it was not specifically mentioned in the Court record that the appellant was the remand prisoner during the relevant period from 23.01.2006 till the date of judgment by the trial Court, it should be deemed that the appellant/fourth accused was only under-trial prisoner in the present case - Therefore, the appellant must be given the benefit of Section 428 Cr.P.C. to set off the period of detention only from 23.01.2006 - Appeal allowed in part. Criminal P.C., Section 428 - See I.P.C., Section 255,258,420. The question now arises for consideration is The appellant being not arrested by the respondent police and not remanded to custody in connection with this case but having been in jail during the period of trial in this case. Whether the appellant could be treated as under-trial prisoner for this case during the relevant period and that period could be set off as per Section 428 Cr.P.C. Held: this Court is of the considered view that though the appellant was confined in prison at Pune as under-trial prisoner in respect of another case, he being not arrested in this particular case and being not remanded pending investigation no benefit can be given to him under Section 428 of Cr.P.C. But after filing the final report, the accused was produced on the basis of P.T. Warrant issued by the trial Court on 23.01.2006. From that date on wards, he was periodically produced from the prison during the pendency of the trial till the date of judgment. The accused being produced before the Court from the prison on the basis of the P.T. Warrant issued as final report was filed against him, the trial Court ought to have remanded him to judicial custody in this case. But the Special Court had failed to do so and to specifically mention on record that the appellant was remanded to judicial custody in this case. The accused being confined in jail throughout the trial period and being produced before the trial Court periodically, merely because he was not brought as an under-trial prisoner on record for his no fault, he should not be made to suffer. Though it was not specifically mentioned in the Court record that the appellant was the remand prisoner during the relevant period from 23.01.2006 till the date of judgment by the trial Court, it should be deemed that the appellant/fourth accused was only under-trial prisoner in the present case. Therefore, the appellant must be given the benefit of Section 428 Cr.P.C. to set off the period of detention only from 23.01.2006. The jail authorities are directed to grant set off to the appellant/A.4 from the period 23.01.2006 to 30.01.2008. Criminal Appeal is partly allowed and the conviction and sentence imposed on the appellant/A.4 by the trial Court under Section 255 I.P.C. are set aside. The conviction and sentence imposed on the accused under Section 258 and 420 I.P.C. are confirmed.

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2010 -2 - L.W (Crl) 879 V. Makesan Vs T. Dhanalakshmi (Indian) Evidence Act, Section 45/Expert opinion in respect of the age of the ink in a cheque, nonavailability, Criminal Trial/Practice and Procedure, Negotiable Instruments Act, Section 138 - Revision arose against Order of Sessions Judge allowing revision petition and directing to send document for expert opinion for the purpose of ascertaining the age of the writings and the age of the ink used for the writing Held: A perusal of all the judgments would go to clearly indicate that as of now, there is no expert in terms of Section 45 of the Indian Evidence Act available who could be in a position to offer any opinion regarding the age of the ink by adopting any scientific method - C.I.R.C. allowed. Criminal Trial/Practice and Procedure See (Indian) Evidence Act, Section 45/Expert opinion in respect of the age of the ink in a cheque, nonavailability. Negotiable Instruments Act, Section 138 - See (Indian) Evidence Act, Section 45/Expert opinion in respect of the age of the ink in a cheque, nonavailability, Criminal Trial/Practice and Procedure. 2010 -2 - L.W (Crl) 881 State represented by, The Inspector of Police, Video Piracy Cell Vs A. Subramani

Copyright Act, Section 63/Sale of DVD Cassettes, Infringement of copyright, Discretion of Magistrate are regards Sentence on a plea of guilty - Appeal by the State was preferred for enhancement of Sentence imposed on plea of guilty and to undergo twelve days simple imprisonment and to pay a fine of Rs. 1,000/-, in default, to undergo simple imprisonment for two months - Contention was urged that as per Section 63 the minimum sentence to be imposed is not less than six months and fine also should not be less than Rs. 50,000/- - Held: The learned Magistrate had observed in the judgment that no evidence has been let in by the prosecution to show that the accused by selling the DVD cassettes made profit or gain and further, that it was pleaded by the accused that he would not indulge in further in similar offence and he is the breadwinner of the family - Occurrence relates to the year 2006 and the judgment was delivered only after three years - As such, the Magistrate had the discretion to impose lesser punishment as per the proviso under Section 63 of the Copyright Act - There is no error or illegality in the order - Criminal Appeal dismissed.

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2010 -2 - L.W (Crl) 885 Dr. L. Prakash Vs The State represented by The Inspector of Police Narcotic Drugs and Psychotropic Substance Act, Section 8(c) r/w. 21 - Contention urged on behalf of appellant was that even according to prosecution, though the Doctor (appellant) was arrested on 24.12.2001, confession was recorded and his clinic was searched on 25.12.2001, on that day no narcotics contraband was seized, but subsequently prosecution alleges that the accused once again had given a confession and on the basis of the said confession, 55 grams of heroin was seized from the same premises - Held: According to P.W.1, though both witnesses P.Ws. 2 and 3 were produced by the Inspector of Police, P.W.1 had not taken any steps to get any respectable witnesses from that locality where the clinic is situate - It is not known as to why the signature of the watchman was not obtained in the mahazar - Though P.W.1 had stated that it was the accused who himself voluntarily took out the contraband and produced it to him, his signature was not obtained in mahazar Ex.P.2 and copy not served to him. Evidence let in by the prosecution with regard to the confession of he accused, search and seizure of the contraband from his clinic is not credible and acceptable to this Court - Trial Court in its Judgment though narrated the evidence of D.Ws.1 to 3 had not specifically rejected their evidence giving reasons - Appeal allowed. 2010 (4) CTC 498 Kali @ Thangasamy others vs State, Inspector of Police, District Crime Branch, Trichy Criminal Trial Recovery Effect of Mere recovery of Material Objects from Accused not sufficient when there are no eye witnesses Recovery doubtful and cannot be held to be proved beyond reasonable doubt. Facts: Accused convicted by Trial Court for offence of theft of idols. Appeals preferred by the accused who were found guilty. The Trial Court relied on the evidence of the finger print expert and also the evidence regarding recovery of the idols from the accused to hold them guilty. The main contention in the Appeals was that the prosecution did not prove the guilt beyond reasonable doubt and the recovery of the Material Objects from the accused would not alone be sufficient to hold them guilty. Held: Insofar as it relates to recovery is concerned, a perusal of the evidence of PW16 Kariappan reveals that he had spoken about the recovery from first accused and other accused. First accused is dead and PW16 is not able to speak about the recovery from other accused. PW7 Neelamegam is an Advocate, in his evidence, though he had spoken about the recovery, but it is unfortunate that he is unable to identify the accused from whom the property has been recovered. Mere recovery alone is not sufficient. In these cases, there is no eye witness. So, the recovery of material objects from the Appellants / accused 3,5,to 8 are doubtful and it has not been proved by the prosecution beyond reasonable doubt.

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2010 (4) CTC 516 The Secretary, Tamil Nadu Wakf Board, Santhome High Road, Madras 600 004 Vs Kancheepuram Oili Mohamed-Pettai Labbai Jumma Masjid, by its Muthavalli, V.K. Abdul Khader Sahib, No.60-B, Road Street, Oil Mohamed Pattai, Kancheepuram & Others Wakf Act, 1995 (43 of 1995), Section 89 Code of Civil Procedure 1908 (5 of 1908), Section 80 Suit against Wakf Board Section 89 of Act is analogous to Section 80 of Code of Civil Procedure Pre-suit notice is a condition precedent Defect of want of notice goes to root of matter It cannot be viewed lightly Suit against Wakf Board in respect of any act purported to be done by it in pursuance of Act or Rules framed thereunder, is barred unless proper notice is served on Wakf Board before filing of Suit. Second Appeal was filed by the Wakf Board. It arose out of the Suit filed by the Muthavalli of a Mosque representing the Mosque. High Court held that failure to issue pre-suit notice, goes to the root of the matter and Suit itself is not maintainable. The High Court further held that only the Wakf Board can file a Suit and defend matters pertaining to Wakfs. In regard to the plea of the Appellant/10th Defendant that issuance of notice to the Appellant/Wakf Board is a condition precedent to the filing of the Suit, this Court points out that new Section 89 (old Section 56) of the Wakf Act, 1995, has not undergone any change and the notice under Section 56 (new Section 89) is analogous to Section 80 of the Civil Procedure Code and it prohibits the filing of any Suit against the Wakf Board n respect any Act purporting to be done by it in pursuance of the Act or the Rules framed thereunder unless, the proper notice is served on the Wakf Board before filing of the Suit. Defect of want of notice goes to the root of the matter and it cannot be viewed likely. In the instant case, though an against the Appellant / 10th Defendant no relief is claimed as per the averment made in the Plaint yet, it is a necessary party to the Suit as opined by this Court. Eventhough as against the Appellant / 10th Defendant no relief is claimed by the 1st Respondent / Plaintiff in the Suit since the Appellant / 10th Defendant has General Superintendent and control of the 1st Respondent / Plaintiff's Mosque and inasmuch as the 1st Respondent / Plaintiff' is represented by Muthavalli who can be removed from his office as per the provisions of the Wakf Act, 1995, and since he has to carry out the directions of the Board and to perform other duties enjoined under the Act, this Court is of the considered view that pre-suit notice as required under Section 89 (old Section 56) of the Act is very much necessary/mandatory and in the instant case, the plaintiff has not issued the pre-suit notice as per Section 89 (Old Section 56) of the Act and this material defect affects the very foundation of the filing of the Suit and the substantial questions of law 2 and 3 are answered against the 1st Respondent/Plaintiff. Wakf Act, 1995 (43 of 1995), Section 89 Code of Civil Procedure 1908 (5 of 1908), Section 80 Suit against Wakf Board Section 89 of Act is analogous to Section 80 of Code of Civil Procedure Pre-suit notice is a condition precedent Defect of want of notice goes to root of matter It cannot be viewed lightly Suit against Wakf Board in respect of any act purported to be done by it in pursuance of Act or Rules framed thereunder, is barred unless proper notice is served on Wakf Board before filing of Suit. Second Appeal was filed by the Wakf Board. It arose out of the Suit filed by the Muthavalli of a Mosque representing the Mosque. High Court held that failure to issue pre-suit notice, goes to the root of the matter and Suit itself is not maintainable. The High Court further held that only the Wakf Board can file a Suit and defend matters pertaining to Wakfs.

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In regard to the plea of the Appellant/10th Defendant that issuance of notice to the Appellant/Wakf Board is a condition precedent to the filing of the Suit, this Court points out that new Section 89 (old Section 56) of the Wakf Act, 1995, has not undergone any change and the notice under Section 56 (new Section 89) is analogous to Section 80 of the Civil Procedure Code and it prohibits the filing of any Suit against the Wakf Board in respect any Act purporting to be done by it in pursuance of the Act or the Rules framed thereunder unless, the proper notice is served on the Wakf Board before filing of the Suit. Defect of want of notice goes to the root of the matter and it cannot be viewed likely. In the instant case, though as against the Appellant / 10th Defendant no relief is claimed as per the averment made in the Plaint yet, it is a necessary party to the Suit as opined by this Court. Eventhough as against the Appellant /10th Defendant no relief is claimed by the 1st Respondent / Plaintiff is represented by Muthavalli who can be removed from his office as per the provisions of the Wakf Act, 1995, and since he has to carry out the directions of the Board and to perform other duties enjoined under the Act, this Court is of the considered view that pre-suit notice as required under Section 89 (old Section 56) of the Act is very much necessary / mandatory and in the instant case, the Plaintiff has not issued the pre-suit notice as per Section 89 (Old Section 56) of the Act and this material defect affects the very foundation of the filing of the Suit and the substantial questions of law 2 and 3 are answered against the 1st Respondent / Plaintiff. Wakf Act, 1995 (43 of 1995), Sections 32(2) (i) & 89 Power to institute and defend Suit and proceedings pertaining to Wakf lies with Board Suit filed by Muthavalli representing Mosque is not maintainable Only Wakf Board can file a Suit and defend same. It is to be noted that as per Section 32(2) (i) of the Wakf Act, 1995, the power to institute and defend suits and proceedings pertaining to Walk lies with the Board and therefore the present Suit filed before the Trial Court by the Muthavalli representing the 1st Respondent / Plaintiffs Mosque is not maintainable in the eye of law.

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