Vol-II June & July, 2007Part – 6 & 7

IMPORTANT CASE LAWSCompiled byTamil Nadu State Judicial AcademyChennai – 28SUPREME COURT CITATIONS 2007 1 MLJ (Crl) 1277 (SC)Naveen Chandra Vs. State of UttaranchalSecs. 96,97 and 105 – Right of private defence to body – Nature andExtent of – Court can consider plea even if it is not raised by the accused – Burden ofproof is on accused – Burden stands discharged by showing preponderance ofprobabilities – Relevant factors to be taken into consideration by the Court indicated – Onfacts held through the accused was exercising the Right of private defence he hadexceeded the same – Conviction under Section 302 I.P.C. altered to one under Section304 (Part I) I.P.C. (2007) 4 Supreme Court Cases 257Crl. Appeal No.1228 of 2004 , Abdul Vahab Abdulmajid Shaikh andothers Vs. State of Gujarat, Crl. Appeal No. 129 of 2005, Abdul VahabAbdulmajid Shaikh and others Vs. State of Gujarat, Crl. Appeal No. 130of 2005, State of Gujarat Vs. Yasin Ganibhai Haveliwala and OthersCrl. Appeal No. 1228 of 2004 with Nos. 129-30 of 2005, decided on April24, 2007A. Evidence Act, 1872 – S.24 – Confession of accused – Voluntary natureof - Determination of – Retraction at later stage – Effect of – Held, merely because theconfession was retracted later; that does not mean that the confession was not voluntary in nature – Whether the accused was willing to give confession voluntarily or not is to be determined from his mental state at the time when he gave the confession – In the present case, confession of accused recorded by Dy. Commissioner of Police (DCP) under TADA Act – Accused had expressed his willingness to make the confession – DCP took all precautions to ascertain that the confession was voluntary – Confession recorded after complying with all procedural formalities and these facts incorporated in confessional statement – Before the Magistrate, accused had no case that he was put under pressure or third-degree methods had been used against him to extract confession – In view of the said facts, held, the above confession was voluntary, truthful and admissible in evidence – Terrorist and Disruptive Activities (Prevention) Act, 1987 – S. 15 – Criminal Procudure

Code, 1973, S.164Held:Merely because the confession was retracted later, that does not mean that theconfession was not voluntary in nature. All confessions are invariably retracted at a laterstage, therefore, the retraction by itself is not a ground to discard the confession byholding that it was not voluntarily made. Whether the accused was willing to give aconfession voluntarily or not is to be determined from his mental state at the time whenhe gave the confession. (Paras 13 and 8)In the present case, the accused was arrested by the police and as he expressed hiswillingness to make a confession, he was produced before the DCP and told that he wasnot legally bound to give a voluntary statement and that in case any statement is found tobe false, it would be used against him. The DCP had taken all precautions to ascertainthat the confession was voluntary. All formalities had been complied with and these factsare incorporated in the confessional statement. There is nothing on record to show thatthe accused was under pressure to give any confession. When he produced before theMagistrate, he had no case that he was put under pressure or third-degree methods hadbeen used against him to extract the confession. When he was questioned under Section313 CrPC, he had only stated that he had not given any confession as recorded by DCPafter apprising him that he was not bound to give a confession and in case he gave theconfession, it would be used against him. Therefore, there is no force in the contention ofthe accused-appellants regarding the inadmissibility of the confession. There is ampleevidence to show that the confession was truthful and gained support from other items ofevidence.(Paras 8 and 13) (2007) 1 MLJ (Crl) 1250Raghu Lakshminarayanan Vs. Fine Tubes(A) Negotiable Instruments Act (26 of 1881), Sections 138, 141 – CompaniesAct (1 of 1956) –7. A bare perusal of the complaint petition would show that the accused No.1was described therein as ' a business concern'. It was not described as a Company or apartnership firm or an Association of Persons.8. ..............9. The description of the accused in the complaint petition is absolutely vague.A juristic person can be a Company within the meaning of the provisions of theCompanies Act, 1956 or a partnership within the meaning of the provisions of the IndianPartnership Act, 1932 or an association of persons which ordinarily would mean a bodyof persons which is not incorporated under any statute. A proprietary concern, however,stands absolutely on a different footing. A person may carry on business in the name ofa business concern, but he being proprietor thereof, would be solely responsible forconduct of its affairs. A proprietary concern is not a Company. Company in terms of theexplanation appended to Section 141 of the Negotiable Instruments Act, means any body– corporate and includes a firm or other association of individuals. Director has beendefined to mean in relation to a firm, a partner in the firm. Thus, whereas in relation to aCompany, incorporated and registered under the Companies Act, 1956 or any otherstatute, a person as a Director must come within the purview of the said description, so

far as a firm is concerned, the same would carry the same meaning as contained in theIndian Partnership Act. 2007 (2) TLNJ(Civil) 585 (586)Mohit Bhargava Vs. Bharat Bhushan Bhargava & Ors.Civil Procedure Code 1908 as amended – Section 39 (4) and Order 21, Rule54 – Executing Court – order restraining person from handling over property in hispossession to judgment debtor along with concerned document and keeping documentsin safe custody – they are in the nature of a “freezing order” or a “Mareva injunction”and an order akin to an Anton Piller order, orders that can be issued even if the propertyor the person concerned is outside the jurisdiction of the Court.2007 (2) TLNJ (Civil) 491Usha Balashaheb Swami & Ors. Vs. Kiran Appaso Swami & Ors.Civil Procedure Code 1908 as amended – Order 6, Rule 17 – Amendment ofwritten statement – scope of – it is equally well settled principle that a prayer foramendment of the plaint and a prayer for amendment of the written statement stand ondifferent footings. The general principle that amendment of pleadings cannot be allowedso as to alter materially or substitute cause of action or the nature of claim applies toamendments to plaint. It has no counterpart in the principles relating to amendment ofthe written statement. Therefore, addition of a new ground of defence or substituting oraltering a defence or taking inconsistent pleas in the written statement would not beobjectionable while adding, altering or substituting a new cause of action in the plaintmay be objectionable. Such being the settled law, we must hold that in the case ofamendment of a written statement, the courts are more liberal in allowing an amendmentthan that of a plaint as the question of prejudice would be far less in the former than inthe latter case – on facts.It was neither a case of withdrawal of admission made in the written statementnor a case of washing out admission made by the appellant in the written statement, bysuch amendment the appellant had kept the admissions intact and only added certainadditional facts which need to be proved by the plaintiff and defendant no.2 to 8 to getshares in the suit properties alleged to have been admitted by the appellants in theirwritten statement. Accordingly, we are of the view that the appellants are only raising anissue regarding the legitimacy of plaintiff and defendant no.3 to 7 to inherit the suitproperties as heirs and legal representatives of the deceased Appasao, the High Courtwas not justified in reversing the order of the trial court and rejecting the application foramendment of the written statement.2007 -2 – L.W. 955T.Anjanappa and Ors. Vs. Somalingappa and Ano.Adverse Possession/ Requisites that constitute, Limitation Act (1963),Schedule/Article 65 – Concept of adverse possession contemplates hostiles possessioni.e. a possession which is expressly or impliedly in denial of the titleof the true owner –Possession to be adverse must be possession by a person who does not acknowledge theother's rights bit denies them – Where possession could be referred to a lawful title, it willnot be considered to be adverse – A person who enters into possession having a lawfultitle, cannot divest another of that title by pretending that he had no title to all.

Para 12,16Mere possession however long does not necessarily means that it is adverse to thetrue owner – Adverse possession really means the hostile possession which is expresslyor impliedly in denial of title of the true owner – In order to constitute adverse possessionthe possession proved must be adequate in continuity, in publicity and in extent so as toshow that is adverse to the true owner – Possession must be open and hostile enough tobe capable of being known by the parties interested in the property, though it is notnecessary that there should be evidence of the adverse possessor actually informing thereal owner of the former's hostile action.Para 22High Court of Karnataka erred in holding that even if the defendants claimadverse possession, they do not have to prove who is the true owner and even if they hadbelieved that the Government was the true owner and not the plaintiffs, the same wasinconsequential – Obviously, the requirements of proving adverse possession have notbeen established – Appeals allowed.Para 272007-1-L.W. (Crl.) 534Sabitha Ramamurthy & Anr. Vs. R.B.S. ChannabasavaradhyaNegotiable Instruments Act (1881), Sections 138, 141, Criminal P.C., Section200, S. 482 – Appellants herein were not directors of the company at the material time –In the complaint petitions, it was categorically stated that the company had been dealingwith imparting of computer education represented by its Mananging Director, Chairman,Vice-Chairman and other Directors, borrowed a sum of Rs. 2,25,000/- from theRespondent and towards payment of the said loan, the accused had issued two cheques on 23.06.2001 and 30.06.2001 for a sum of Rs.1,24,406/- each which upon being presented were dishonoured as the company did not have sufficient fund – It was stated further that the accused persons have failed to clear the liability and the accused being Company, all the directors are responsible for the clearance of liability under Section 141 of the N.I. Act and the acts and deeds of the accused persons is punishable under Section 138 of N.I. Act.Appellants herein filed an application under Section 482 of the Crl.P.C. prayingfor quashing of the processes issued against them in the said proceedings, which wasdismissed stating that ''question as to whether these petitioners were involved in day today affairs of the business of the company is to be decided based on the material onrecord collected during the course of trial'' – Appeal to Supreme Court was preferredtherefrom.Held: A bare perusal of the complaint petitions demonstrates that the statutoryrequirements contained in Section 141 of the Negotiable Instruments Act had not beencomplied with.What is required is a clear statement of fact so as to enable the court to arrive at aprima facie opinion that the accused are vicariously liable.Section 141 raises a legal fiction – By reason of the said provision, a personalthough is not personally liable for commission such an offence would be vicariouslyliable therefor – such vicarious liability can be inferred so far as a company registered orincorporated under the Companies Act, 1956 is concerned only if the requisite

statements, which are required to be averred in the complaint petition, are made so as to make the accused therein vicariously liable for the offence committed by the company –Before a person can be made vicariously liable, strict complaince of the statutoryrequirements would be insisted.Not only the averments made in paragraph 7 of the complaint petitions does notmeet the said statutory requirements, the sworn statement of the witness made by the sonof Respondent herein, does not contain any statement that Appellants were in charge ofthe business of the company.In terms of Section 200 of the Code of Criminal Procedure, the complainant isbound to make statements on oath as to how the offence has been committed and how theaccused persons are responsible therefor – Impugned judgments of the High Court cannotbe sustained which are set aside accordingly and the processes issued by the Magistrate,against Appellants herein are quashed.(2007) 3 MLJ 799 (SC)Chanda (Dead) through Lrs. Vs. Rattni and AnotherSpecific Relief Act (47 of 1963), Section 28 – Contract for sale of immovableproperty – Sale of – Failure of decree holder to deposit balance sale consideration –Power of Court to grant extenstion of time – Though decree holder obtained expartedecree for specific performance, he did not deposit balance sale consideration – Powerunder Section 28 is discretionary – Court cannot ordinarily annual decree once passed byit – Section 28 provides for complete relief to both parties in terms of decree – Court doesnot cease to have power to extend time and deposit of balance sale consideration, thoughthe time originally granted had expired – Since decree holder did not deposit balance saleconsideration within the time stipulated, Lower Court correct in rescinding contract –Revision dismissed.(2007) 3 MLJ 832 (SC)Aditya Hotels Pvt. Ltd. Vs. Bombay Swadeshi Stores Ltd and OthersCode of Criminal Procedure (5 of 1908), Order 8 Rule 1 – Extenstion of time ,granted for filing written statement – Held, no reason, indicated to justify acceptance ofwritten statement, after expiry of time fixed – As such, orders of trial Court and HighCourt, set aside.(2007) 3 MLJ 834 (SC)Makhan Singh (D) by Lrs. Vs. Kulwant SinghSpecific Relief Act (47 of 1963) – Hindu Sucession Act (30 of 1956), Section 8– Suit for specific performance – Onus of proof on existence or otherwise or Joint HinduFamily property – Held, property, could not be presumed to be Hindu Joint Familyproperty merely because of existence of Joint Hindu Family – No evidence, to show thatproperty in question, purchased from income of Joint Family – Burden to prove thatproperty in question, Joint Family property, on party who so asserted it – Self acquiredproperty of one of member of Joint Family falling to his sons by succession, not propertyof Joint Hindu Family.

HIGH COURT CITATIONS(2007) 1 MLJ (Crl) 1215G. Munivelu Vs. S. Masilamani

Registration of Births and Deaths Act (18 of 1969) – Sec. 13 (3), 15 – TamilNadu Registration of Births and Deaths Rules, 2000 Rule 11 (6) – Verification of thecorrectness of the birth or death – Judicial Magistrate after following formalities likepublication and after recording sworn statement of the petitioner has passed order forregistering his date of birth – No entry made in the Register of Birth maintained by theRegistrar – Dispute under – Correctness or cancellation can be agitated only before thecivil forum – Revision dismissed – Velu Vs. Malthi W/o. Shanmugam 1992 LW (Crl)16, relied on .(2007) 1 TLNJ 507 (Civil)B. Narashimha Rao Vs. T. Raghavalu Naidu & Company, rep by itsPartnerT. Raghavalu Naidu,Indian Partnership Act 1932 – Section 32 and 72 – Suit filed againstpartnership and three partners decreed – execution petition filed - 3rd defendant/partnerfiled petition under Section 47 of Civil Procedure Code – contention that he retired on1.8.2001 – given notice to plaintiff by certificate of posting on 31.08.2001 and that he isnot liable – Section 47 – petition dismissed - 3rd defendant filed civil revision petition inHigh Court – held, 3rd defendant has not given public notice as contemplated underSection 72 of Indian Partnership Act – cause of action for the suit arose beforeretirement – no agreement between retiring partner and the third party and the partnersof reconstituted firm – objections not raised by 3rd defendant at the time of trial – eventhe notice sent under certificate of posting is subsequent to the date of cause of action –no illegality or infirmity in the order of the executing court – civil revision petitiondismissed.2007 -2-L.W. 987R.S. Nagarajan Vs. R.S. Goapalan & 3 OthersC.P.C., Order 8, Rule 9/ Additional Written statement – Application wasfiled in lower court by Second defendant under Order 8 Rule 9 read with Section 151C.P.C. for receiving additional written statement, stating that due to the high regardwhich he had for his elder brother, the first defendant, he has been prevailed over to sign the statement prepared by the first defendant, and now realizing the position, it hasbecome necessary for him to tell the truth before the Court by filing the additionalwritten statement, and in the additional written statement totally he is seeking tointroduce a new case – Application having been dismissed by lower court, he filed thisrevision and submitted that inconsistent plea can be taken in the written statement andthe Court below should have allowed the application filed by the petitioner for receptionof additional written statement – Held: In the case on hand, the petitioner now tries tointroduce altogether a new case by way of filing an additional written statement and thatcannot be allowed – Court below has rightly dismissed the application filed by thepetitioner – There is no error of jurisdiction or illegality in the said order.(2007) 2 L.W. 995T. Ramaiya Vs. National Insurance Co.,Motor Vehicles Act (1988), Section 164/ Insurance Company's liability –Defence of the Insurance Company before the MAC Tribunal was that there wasviolation of conditions of the Policy by reason of 30 persons being carried in a vehicle

which has a permit to carry only 25 persons – Award was passed by the Tribunal infavour of the claimants who sustained injuries directing the Insurance Company beforethe MAC Tribunal was that there was violation of conditions of the Policy by reason ofto pay compensation with a direction in the decree that the Insurance Company viz., thefirst respondent herein shall be entitled to recover the award amounts from the petitioner(owner of the vehicle) after paying the same in accordance with award to the claimants –Owner of the vehicle filed these CRPs against the said order – Held: there is no plea bythe Insurance Company that the accident was only because of taking more passengersand there is no eye-witness on the part of the Insurance Company to prove that theaccident was only because of taking more number of persons than the permitted numberof passengers.In the instant case, the insurance company has agreed to indemnify the owner ofthe vehicle in respect of 25 passengers, whereas the claimants are only 18 in numbers –Therefore necessarily the Insurance Company Viz., the first respondent herein is liableto indemnify the petitioner – As a result, that part of the award in all these claimpetitions giving right to the first respondent insurance company to recover the awardamounts from the petitioner/owner of the vehicle after paying the same to the claimantsstands set aside.2007-2-L.W. 999T.Tamilarasan Vs. Arokkiasamy & 2 OthersC.P.C., order 41, Rule 27/Additional evidence before appellate Court,Procedure.Evidence Act, Section 114/ Merely filing a statement on oath, by a party,without offering himself to be cross examined – Adverse inference, whether to bedrawn against him – Held: It is clear that when in the appellate Court it isestablished that notwithstanding due diligence such evidence could not be producedduring the trial stage or in cases where the appellate Court requests the document tobe produced for pronouncing judgment or for any other substantial cause, theAppellate Court may allow such evidence or document to be produced or witness tobe examined.It is also made clear that in cases where the appellate court takes a decision toallow the additional evidence, it is to direct the Court from whose decree the appealis preferred, or any other Subordinate Court, to take such evidence and to send it tothe Appellate Court for decision.It is one thing to say that the first appellate Court has allowed the documentsto be produced, and another thing, to prove the document through proper method ofevidence – In the present case, the second aspect has not been followed by the firstappellate Court.Paras 13,14Effect of a party in not appearing in the witness box offering himself to becross examined, but not only filing a statement on oath has been held to be a case ofadverse inference to be drawn against him as per Section 114 of Evidence Act-Conduct of the party in not entering into the witness box and the law on this aspectas per the adverse inference.First appellate Court has not appreciated the correct distinction between theproduction of documents and proving of the documents as additional evidence –

Law is clear on this aspect, it can never be said as it the plaintiff has waived his right– Case remanded back to the first appellate Court with a direction to follow theprovision on Order 41 Rules 27 and 28 CPC scrupulously by giving opportunities toboth the parties – Second Appeal allowed.Paras 18,192007-2-L.W. 1006Bellamma Vs. Nagarathamma & 2 OthersC.P.C., Order 16, Rule 14 – Order 16, Rule 14 enables a Civil Court to summon astranger to the suit to give evidence for the purpose of marking certain documents.It is very clear that suo motu power applies only in respect of persons who werenot earlier called as witnesses – Merely because the plaintiff failed to mark some of thedocuments, that cannot be ground for enabling the Civil Court to exercise its suo motupower under Order 16 Rule 14 of CPC, since the said clause clearly states that it appliesonly to persons who were not called as witnesses earlier.As stated earlier, when once the plaintiff already filed an application and that wasdismissed and that order had become final, the Court does not think that any furtherapplication can be filed on the same cause of action – This is not a case where Order 16Rule 14 of CPC can be invoked by the Court – CRP allowed. 2007-1-L.W. (Crl.)Dr. K. Sumathi Vs. 1. M.A. Jeya Raj & 2.Inspector of Police, AmbathuraiPolice StationTamil Nadu Prohibition of Harassment of Woman Act (1988), Section5, and Criminal P.C., Sections 468, 473/Extension of period of limitation in certaincases – Complaint was filed by Revision petitioner (a Research Scholar in theFandhigram University) under S.5 alleging that the first respondent herein (1st accused)has served as her guide, and the first respondent caused various harassment to her –Petitioner herein filed two Criminal Miscellaneous Petitions before the JudicialMagistrate with specific prayers to issue summons to the Vice Chancellor and includehim as second accused – It was stated by petitioner that the attitude of the first respondenthas been reported to the Vice Chancellor (by name M) and he wilfully failed to takeaction against the first respondent and as per Section 5, the said Vice Chancellor is liableto be prosecuted, but the second respondent (Inspector of Police) has failed to includehim as second accused in C.C., and under the said circumstances, it has become just andnecessary to issue summons to the Vice Chancellor and also to include him as secondaccused – Lower Court dismissed the petitions as barred by limitation and this Revisionwas filed against the said order.Paras 2,3Held: The second part of Section 473 of the Criminal P.C. empowers the Court totake cognizance of an offence after expiry of the period of limitation on the basis ofinterest of justice even though delay has not been properly explained – In the complaint,as adverted to earlier, it has been clearly stated that the alleged harassment meted out bythe revision petitioner and one Dr.S.L. have been properly reported to the then ViceChancellor by name M, but he has failed to take action – Therefore, the lapses on the partof the said Vice Chancellor would clearly attract the penal provisions of Section 5 of the

Act.Paras 10,11Since necessary allegations have been made against the then Vice Chancellor inthe complaint itself, in the interest of justice, he can be included s second accused inCalendar Case, as per the second limb of Section 473 of the Crl.P.C. - Judicial Magistratedirected to proceed against the accused mentioned in the petitions as per law – Revisionallowed.Paras 11,132007-1-L.W. (Crl.) 440K. Dhamodharan Vs. R.V.NarbabiProtection of Human Rights Act (1993), Sections 2(d), 30, andCriminal P.C., Section 482, Tamil Nadu (Procedure) Regulations (1997) framedunder Section 2(c), Criminal P.C., Sections 2(d), 193 – Complaint was preferred by therespondent herein before the Court of the Chief Judicial Magistrate, Kumbakonam, whichwas formerly the Human Rights Court, under Section 2(d) of the Protection of HumanRights Act r/w Section 200 of the Code of Criminal Procedure and the entire records inthe case was sent to the Court of the Principal District Judge, Thanjavur which wasnotified as the Human Rights Court in the District of Thanjavur – The latter chose to sendthe entire case records to the Judicial Magistrate No.I, Thanjavur to adhere to thecommittal proceedings,as the Human Rights Court was not vested with the power to takeup the private complaint directly on file without committal proceedings.This petition is filed by the Accused seeking quashment of the criminalproceedings on the file of the learned Judicial Magistrate No.I, Thanjavur – As thecommittal proceedings are in progress, the present petition has been filed by the accusedseeking quashment of the whole proceedings – Petition/accused would vehementlysubmit that any complaint regarding the violation of human rights shall be submitted onlybefore the State Commission constituted under the Protection of Human Rights Act, 1993and no private complaint would lie as against the public servant.Paras 1 to 6Held: The cumulative reading of Section 12 (a) and 18 of the Protection ofHuman Rights Act, 1993 and Section 2(c) of the State Human Rights Commission, TamilNadu (Procedure) Regulations, 1997 would reveal that the State Commission has theauthority to deal with a complaint as against a public servant – Crl.O.P. dismissed.Para 152007-1-L.W. (Crl.) 456S.Soundarapandian Vs. Ponram & 8 Others.Criminal P.C., Section 341 (1) / Appeal, procedure in appellate court, Sections190, 195/Criminal Rules of Practice and Circular Orders, Rule 68/applicability – Appealwas before Sessions Court against order of magistrate rejecting complaint filed underS.190 – Sessions Judge passed order directing issue of notice to all respondent – Orderwas challenged in High Court under Section 482 contending that respondents are notentitled to notice during the proceedings initiated by the petitioner under Section 341 (1)and the application filed before the Sessions Judge, should not have been entertained asCriminal Appeal - Held: rejecting the plea, the very section contemplates specifically

issuance of notice to the other side before taking any decision on the appeal preferred bythe petitioner.It is thus held that in an appeal preferred as against refusal to complaint, theproposed accused is entitled to notice – Crl.O.P. dismissed.2007-1-L.W. (Crl.) 517G. Thiyagarajan Vs. State rep by the Deputy Superintendent of Police,Vigilance and Anti Corruption, VirudhunagarI.P.C., Sections 120 (B), 409, 167, 420, 477 (A), I.P.C., r/w. 109 I.P.C.,Prevention of Corruption Act (1988), Sections 13 (2), and 13 (1) (c), (d), 15 r/w. 13(1) (d) (ii), Criminal P.C., Sections 154, 157 (3), 164, 482 – Petition to quashproceedings was filed by the 8th accused – Contention urged that the second respondenthas no authority to register a case based on the information he has collected from anyanymous sources, as Section 154 of the Crl.P.C. contemplates registration of a case basedon the information furnished by a third party, and the Inspector of Police, Vigilance andAnti Corruption, Madurai (second respondent) cannot be the author of the complaint toset the law in motion,etc.Held: Here is a case where the Inspector of Police, second respondent herein, hasset the law in motion by registering the FIR not based on any information furnshied by athird party but based on the information, he has gathered from some anonymous sourcesand also based on the discreet enquiry, he had held.Para 5As per Section 157, the information relating to the commission of cognizableoffence can be received either from a third party or otherwise for the purpose ofembarking upon an investigation in case of cognizable offences – Station House Officeris required to submit a report to the Judicial Magistrate concerned about such informationhe has got either from a third party or otherwise – Therefore, to set the law in motion theinformation flowed from a third party is not the only source – Information can emanatefrom any source including anonymous quarters – That is the import of the provisionunder Section 157.Para 17Court finds with due respect to the learned judge that the Judgment in GnaneswaranVs. State [2004 M.L.J.(Crl.) 435] is per incuriam and not a stare decisis – Consequentlyit lacks precendential potentiality.Para 21It is found that there is no abuse of the process of the Court by launchingproseuction as against the peitioner on the basis of the FIR registered by the secondrespondent – Crl.O.P. dismissed.Para 222007-1-L.W. (Crl.) 523Barnabas Vs. SivakamiNegotiable Instruments Act (1881), Section 138, Criminal P.C., Sections 26,

302, 2(q)/''Pleader'', definition of – Death of complainant during the pendency ofproceedings – Application filed by his wife to substitute her in the place of the originalcomplainant was allowed and permission sought was granted by the Magistrate.Revision against said order was filed by accused contending that the respondent,who has been permitted to conduct the prosecution under Section 302 of the Crl.P.C.,cannot legally enter into the box and give evidence in the place of the originalcomplainant, who is dead, and that in a summons case a complaint cannot be continued inthe absence of the complainant on account of his death as per Section 256.Held: there is no substance in the criminal revision case – substitution in the placeof the deceased person does not take away the right of the person substituted to deposeevidence evidence from his own knowledge as regards the facts and circumstances of acase – In fact, in such circumstances, such a person substituted in the place of thedeceased takes the dual rule of a pleader and complainant.Paras 4,16,15Judicial Magistrate is empowered under S.302, Crl.P.C. to grant permission to anyperson to conduct the prosecution – A person can prosecute the case personally or by apleader – Pleader need not be an advocate, who has enrolled in the Bar Council – theterm 'pleader' as per Section 2 (q) of the Crl.P.C. includes any other person appointedwith the permission of the Court to act in such proceeding.There is no bar either under the Crl.P.C. or under the Evidence Act for a pleader oran Advocate to enter into the box to depose evidence in a case from his own knowledge –But the oral testimony which emanates from such a witness shall be direct – But such aperson cannot enter into the soul of another man, who is dead and speak as thespokesperson of the dead person, when nothing has taken place in the presence of such aperson – The role now assigned under the garb of Section 302 of the Crl.P.C. cannotlegally deter her (respondent) from ascending the witness box to depose about the factsand circumstances of the case on hand from her own knowledge.Paras 7,8,102007-1-L.W. (Crl.) 527Ramakannan Vs. Chettiar and Co. rep By its Partner K. Ganesh KrishnaNegotiable Instruments Act (1881), Sections 138 – According to the revisionpetitioner, the undated cheque was issued by him only as a collateral security on09.09.1998 and nearly after a lapse of two years, the respondent herein had filled up thecheque with the date 28.03.2000 and misused the same and therefore, the complaint givenby respondent, itself was not legally maintainable.Held: In this case it has been proved that the undated cheque was handed over oneyear and six months prior to the date of the cheque – Dishonour of the same would notcreate any criminal liability on the revision petitioner/accused.Under Section 138, the validity of a cheque is only for 6 months from the date ofissuance – Implied authorisation for filling up the cheque should certainly be within thelimitation of six months and not more than the period of limitation.Courts below without considering the legal aspect have given the concurrentfinding which has to be construed as a manifest error of law – Criminal revision petitionallowed – Conviction and sentence imposed by the Courts below set aside and theamount of Rs.25,000/- deposited by the revision petitioner is ordered to be refunded to

him.2007-1-L.W. (Crl.) 547M.Palaniappan Vs. G. RavichandranCriminal P.C., Section 200, I.P.C., Sections 465, 379 and 506 (ii), 482 –Order was passed by Magistrate taking the private complaint on his file, and withoutconducting any enquiry as contemplated under the Crl.P.C., straightaway issuedsummons to the accused for appearance and for answering the charges – Contention wasurged on behalf of the petitioner in the O.P. that the procedure contemplated under theCode having not been followed and sworn statement of the complainant has not beentaken and materials have not been received and that only on satisfaction of thosematerials, if prima facie case is made out, thereafter such issuance of summons could bedone – Held: under the facts and circumstances of the case, the process issued against thepetitioner is quashed – However, after conducting inquiry, if the learned Magistrate findsmaterials to proceed against the petitioner, process may be issued.2007-1-L.W. (Crl.) 553P. Arumugam Vs. RajamaniNegotiable Instruments Act (1881), Section 138, Criminal P.C.,Section 243 (2)/Power of Court to send disputed cheque to handwriting expert forcomparison – Revision against the order of the Judicial Magistrate dismissing thepetition filed by the petitioner (second accused) to send the disputed cheque for handwriting expert to ascertain the age of the signature and the age of the typing matter in thecheque leaf – Held: No prejudice would be caused to the respondent on directing thelearned Judicial Magistrate to send the disputed cheque for hand writing expert toascertain the age of the typed matter as well as the signature of the accused in thedisputed cheque Ex.P.1 – Order of Judicial Magistrate set aside – Judicial Magistratedirected to send the disputed cheque to a hand writing expert, to ascertain the age of thesignature and typed matter found in the Cheque Ex.P1 – Revision allowed.(2007) 3 MLJ 845Arukkani (died) and Others Vs. SubramaniamTransfer of Property Act (4 of 1882), Section 126 – Indian Contract Act(9 of 1872), Section 23 – Settlement deed – Revocation of – Undue influence – Effect of– Settlement deed revoked on the ground that it was executed on the misrepresentationthat it was a will – Power of revocation not reserved under settlement deed – Cancellationof settlement deed is invalid – Second appeal dismissed.(2007) 3 MLJ 857T.Tamilarasan Vs.Arokkiasamy and OthersCode of Criminal Procedure (5 of 1908), Order 41, Rules 27 and 28,Section 100 – Judgment and decree of trial Court, reversed by First Appellate Courtsolely on basis of additional documents received, holding that plaintiff has suppressedfact that his patta under Exhibit A-1, cancelled – Held: additional documents filed,straight away taken by first appellate Court without giving any opportunity to plaintiff todisprove veracity or otherwise of such documents by way of evidence – As such, relianceplaced on those documents, which, not proved before Court below, could not be sustained– Second Appeal allowed.