Vol-V September, 2010Part-9

IMPORTANT CASE LAWSIMPORTANT CASE LAWS

Compiled by

Tamil Nadu State Judicial AcademyChennai – 28

SUPREME COURT CITATIONS

2010 -2 -L.W. (Crl.) 902

Renveer YadavVs

State of Bihar

Contempt of Courts Act (1971), Section 2(c)(iii), act which prejudices, or interferes or tends to interfere with, the due course of any judicial proceeding, Apology must be bona fide, and offered at the earliest possible opportunity, Incident in Court creating the disturbance and scene created to delay cross-examination, Criminal Contempt, Supreme Court Rules (1966), Or-der 21, Rule 15(1)(e).

Communication to High Court by Sessions Judge as to what happened in his Court, treated as Reference made under Section 15(2) - Contention urged on behalf of the appel-lant that in a contempt proceeding, the High Court cannot take a different stand by punish-ing he appellant and letting the other appellants go unpunished even after holding that they are guilty of contempt - Held: it is clear that the offending acts of the appellant are specifically coming under Section 2(c)(ii).

Due conduct of any judicial proceeding is a matter of high public importance as it is in-extricably connected with rule of law on which is based the constitutional mode of gov-ernance in this country.

Section 2(c)(ii) has been enacted to protect apart from sanctity, the regularity and purity of a judicial proceeding - This, we repeat, is based on principles of high public policy - That is why contempt power is said to be an inherent attribute of a Superior Court of Record - This power has not been given to the subordinate judiciary, but in an appropriate case, subordinate judiciary can make a reference to the High Court under Section 15(2) of the Act, as has been done in this case.

When High Court exercises its power on a reference under Section 15(2) of the Act, it is virtually exercising the same as a guardian of the subordinate judiciary to protect its proceed-ings against an outrage and affront.

Offending act of the appellant certainly come within the ambit of the interference with the due course of judicial proceeding and are a clear case of the Court.

Appellant tried to justify - Apology was offered in a subsequent show cause reply - Be-fore an apology can be accepted, the Court must find that it is bonafide and is to the satisfac-tion of the Court - Apology in a contempt proceeding must be offered at the earliest possible op-portunity - A belated apology hardly shows the 'contrition which is the essence of the purging of a contempt'.

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Held:

From the fact of the case it is clear that in this case the offending acts of the appellant are spe-cifically coming under Section 2(c)(iii). Due conduct of any judicial proceeding is a matter of high public importance as it is inextricably connected with rule of law on which is based the constitution-al mode of governance in this country. That is why the framers of the Act preceded the expression in-terfere with the words "tends to" and it has been further emphasized by addition of word 'due' before "course of any judicial proceedings".

2010 -2 -L.W. (Crl.) 908

K.A. Abbas H.S.A.Vs

Sabu Joseph & Anr.Vs

Sabu JosephVs

K.A. Abbas & Anr.

Negotiable Instalments Act (1881). Section 138, Criminal P.C., Sections 357, 421, 431/Compensation to the victim, Magistrates' Courts Act (1980) (United Kingdom), Section 83(3), Sentencing Act (1997) (Australia), Section 4.

Question considered as to whether in default of payment of compensation ordered under Section 357(c) of the Crl. P.C., a default sentence can be imposed? - Held: sentence of imprison-ment can be granted for default in payment of compensation awarded under Section 357(3) of Cr.P.C.

Whole purpose of the provision is to accommodate the interests of the victims in the criminal justice system - Sometimes the situation becomes such that there is no purpose is served by keeping a person behind bars - Directing the accused to pay an amount of com-pensation to the victim or affected party can ensure delivery of total justice - Therefore, this grant of compensation is sometimes in lieu of sending a person behind bars or in addition to a very light sentence of imprisonment - On default of payment of this compensation, there must be just recourse.

While passing an order under Section 357(3), it is imperative for the courts to look at the ability and he capacity of the accused to pay the same amount as has been laid down by the cases above, otherwise the very purpose of granting an order of compensation would stand de-feated.

Intention of the legislature is clearly to ensure that mode of recovery of a fine and com-pensation is on the same footing - In light of the aforesaid reasoning, the contention of the ac-cused that there can be no sentence of imprisonment for default in payment of compensation under Section 357(3) should fail.

Criminal P.C., Section 357, 421, 431 / Compensation to the victim - See Negotiable In-struments Act (1881), Section 138.

Magistrates' Courts Act (1980) (United Kingdom), Section 82(3) - See Negotiable Instru-ments Act(1881), Section 138, Criminal P.C., Sections 357, 421, 431 / Compensation to the vic-tim.

Sentencing Act (1997) (Australia), Section 4 - See Negotiable Instruments Act 357, 421, 431/Compensation to the victim, Magistrate's Courts Act (1980) (United Kingdom), Sec. 82 (3).

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Held:

From the above line of cases, it becomes very clear, that, a sentence of imprisonment can be granted for default in payment of compensation awarded under Section 357 (3) of Cr.P.C. The whole purpose of the provision is to accommodate the interests of the victims in the criminal justice system. Sometimes the situation becomes such that there is no purpose is served by keeping a person behind bars. Instead directing the accused to pay an amount of compensation to the victim or affected party can ensure delivery of total justice. Therefore, this grant of compensation is sometimes in lieu of sending a person behind bars or in addition to a very light sentence of imprisonment. Hence on de-fault of payment of this compensation, there must be a just recourse. Not imposing a sentence of im-prisonment would mean allowing the accused to get away without paying the compensation and im-prisonment would mean allowing the accused to get away without paying the compensation and im-posing another fine would be impractical as it would mean imposing a fine upon another fine and therefore would not ensure proper enforcement of the order of compensation. While passing an order under Section 357(3), it is imperative for the courts to look at the ability and the capacity of the accused to pay the same amount as has been laid down by the cases above, otherwise the purpose of granting an order of compensation would stand defeated.

2010 -2 -L.W. (Crl.) 919

Damodar S. PrabhuVs

Sayed Babalal H.

Negotiable Instruments Act (1881), Sections 138, 147, Criminal P.C., Section 320, Com-pounding of offence, Guidelines for fixing quantum of compensation.

It would be apt to clarify that in view of the non-obstante clause, the compounding of of-fences under the Negotiable Instruments Act, 1881 is controlled by Section 147, and the scheme contemplated by Section 320 of the Cr.P.C. Will not be applicable in the strict sense since the latter is meant for the specified offences under the IPC - Section 147 of the Negotiable In-struments Act, 1881 is in the nature of an enabling provision which provides for the compound-ing of offences prescribed under the same Act, thereby serving as an exception to the general rule incorporated in sub-section (9) of Section 320 of the Cr.P.C.

It is quite obvious that with respect of the offence of dishonour of cheques, it is the com-pensatory aspect of the remedy which should be given priority over the punitive aspect - Tend-ency of litigants to belatedly choose compounding as a means to resolve their dispute, noted.

Directions can be given that the Writ of Summons be suitably modified making it clear to the accused that he could make an application for compounding of the offences at the first or second hearing of the case, and that if such an application is made, compounding may be al-lowed by the court without imposing any costs on the Accused - Graded percentage of the cheque amount fixed as costs of subsequent stages, payable to the appropriate Legal Services Authority - See Para 15(i)(a) to (d).

It should be mandatory for the complainant to disclose that no other complaint has been filed in any other court in respect of the same transaction - Such a disclosure should be made on a sworn affidavit which should accompany the complaint - Though the imposition of costs by the competent court is a matter of discretion, the scale of costs has been suggested in the interest of uniformity - Competent Court can, of course, reduced the costs with regard to the specific facts and circumstances of a case, while recording reasons in writing for such variance.

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2010 -2 -L.W. (Crl.) 928

G.V. SiddarameshVs

State of Karnataka

I.P.C., Section 301 - B / Ingredients, Section 498 - A, (Indian) Evidence Act, Section 113 (b) / Presumption of Dowry Death, Scope - Death was caused due to asphyxiation due to hanging and there were also some unexplained scratches in the body which according to the tri-al court was evidence of the harassment of the deceased by the appellant to conclude that the cruel treatment and harassment of the deceased by the appellant led her to commit suicide Conviction affirmed, Section 113B of the Evidence Act raises a presumption against the accused - Onus lies on the accused against whom the presumption lies to discharge it - Appellant has failed to discharge the burden satisfactorily.

It is beyond doubt that the death was an unnatural death - Second ingredient is also proved that the marriage between the deceased took place on 13.12.1997 and the death of the deceased took place on 17.1.1998, which is within the 7 year time-frame.

Threats by the husband of the deceased over the course of two days, when the de-ceased was in her matrimonial home might have been enough for the deceased who was in a fragile state of mind to reach breaking point and end her life - Therefore all the ingredients of Section 304-B have been satisfied, pointing towards the guilt of the appellant.

Circumstances point to the fact that the appellant has not rebutted or discharged the presumption - Therefore we have no doubt in holding that the appellant is guilty for the offence punishable under Section 304 - B of the IPC, for being responsible for the death of his wife.

Sentence of imprisonment for life reduced to 10 years rigorous imprisonment.

(2010) 3 MLJ (Crl) 557 (SC)

State of PunjabVs

Hardial Singh and Others

Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act (33 of 1989), Sections 3(2)(v), 9 - Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995, Rule 7 - Indian Penal Code (45 of 1860), Sections 364, 324, 323, 149 and 148 - Quash - Investigation done by an officer authorized in terms of the Rule 7 of the Scheduled Castes and Scheduled Tribes )Prevention of Atrocities) Rules, 1995, whether illegal with respect to offences not relatable to any provision under the Act - No.

FACTS IN BRIEF:

Aggrieved by the order passed by High Court under Section 482 of the Code of Criminal Procedure 1973 (2 of 1974) present appeal has been filed. The High Court held that the charges against the accused with respect to the offences punishable under Section 364,324,323, 149 and 148 of Indian Penal Code (45 of 1860) and Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, are to be dropped on the ground that investigation not done by proper officer.

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QUERY:

Whether investigation done by the police officer specifically authorized to do so in terms of the Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995, is illegal qua offences not re-latable to any provision under the Act?

Held:

The controversy of the present nature was decided in State of M.P.V. Chamnilal @ Chunni Singh (Criminal Appeal No. 943 of 2003) decided on 15.4.2009. Having the view expressed in State of M.P. v. Chunnilal @ Chunni Singh (supra), it is to be held that only investigation qua the offence under the Act is vulnerable and not those relatable to IPC. It is open to the State to authorize any person in the manner prescribed to investigate into the offences under the Act.

(2010) 6 MLJ 99 (SC)

Bharat Sanchar Nigam LimitedVs

Telephone Cables Limited

Arbitration and Conciliation Act (26 of 1996), Section 11 - Application for appointment of Arbitration - Arbitration agreement, non - existent - Application not maintainable.

FACTS IN BRIEF:

The respondent filed an application for appointment of an arbitrator to decide its claim for alleged loss of profit which was allowed by the High Court by appointing an arbitrator. Aggrieved by the same, appellant has filed present appeal.

QUERY:

Whether the application filed under Section 11 of the Arbitration and Conciliation Act is maintainable in the absence of an arbitration agreement?

Held:

In this case, the dispute raised is in regard to a claim for Rs. 10,61,28,000 as damages on account of BSNL not placing a purchase order, that is loss of profit @ Rs. 200 per CKM for a quantity of 5.306 LCKM. Obviously, the respondent cannot invoke the arbitration clause in regard to that dispute as the arbitration agreement was non - existent in the absence of a purchase order.

To constitute an arbitration agreement for the purpose of Section 7 and 11 the Act, two requirements should be satisfied. The first is that there should be an arbitration agreement between the parties to the dispute. The second is that it should relate to or be applicable to the dispute in regard to which appointment of an arbitrator is sought.

2010 (3) TLNJ 385(Civil)

Arun Kumar Agrawal and anotherVs

National Insurance Company and others

Motor Vehicles Act 1988, Section 163A - A house wife, aged 39 years died in road accident and her husband and minor daughter filed claim petition - insurance company denied the quantum claimed and other grounds - tribunal found that the claimants are entitled to Rs. 6 lakhs but awarded only Rs. 2,50,000/- as only a notional income was taken in to account for determination of compensation - the appeal by the aggrieved claimants was dismissed and on

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further appeal the Supreme Court held that compensation cannot be computed on the death of house wife or mother by comparing services of house keeper or servant who works for fixed period - gratuitous services cannot be equated with services of such employees - the criteria specified under clause 6 of II schedule and appropriate multiple to be adopted - Civil Appeal allowed - Rs.6 lakhs awarded.

2010 (5) CTC 113

P.K. Mohan RamVs

B.N. Ananthachary and others

Transfer of Property Act, 1882 (1 of 1882), Sections 19 & 21 - "Vested interest" - "Contingent interest" - Distinction - Scope - Interest can be said to the vested interest where there is immediate right of present enjoyment or present right for future enjoyment - Interest can be said to be contingent if right of enjoyment is made dependent upon some event which may or may not happen - On happening of event, contingent interest becomes vested interest.

Facts:

"K" was the absolute owner of the Suit Property. "K" executed Settlement Deed in favour of the Appellant, Respondents, and declared that from the date of execution he and the beneficiaries shall enjoy the land and house, etc. Subsequently "K" died on 4.12.1972. After his death the Appellant filed a Suit (O.S. No. 626/1972) for appointment of receiver to carry out the directions mentioned in the 'Settlement Deed'. The Trial Court decreed the Suit, but on Appeal, the High Court reversed the decree of the Trial Court and dismissed the Suit with an observation that the same shall not operate as res judiciate against the fresh Suit which may be filed by the Plaintiff (Appellant herein). After disposal of the Appeal, the Appellant filed O.S. No. 858 of 1979 for partition of his 1/17th share in the suit property and for 'Settlement Deed', the settlor has no right to execute Revocation Deed dated 27.2.1970 or Will dated 30.7.1972. Suit filed by the Appellant was decreed in his favour. Respondents preferred First Appeal which was dismissed by the Lower Appellant Court. Aggrieved by the dismissal of the First Appeal Respondent have preferred a Second Appeal before the High Court which was allowed. Aggrieved by the judgment of the High Court, Appellant has preferred a Civil Appeal before the Hon'ble Supreme Court of India.

Held:

Section 19 and 21 of the Transfer of Property Act, 1882 (for short, 'the 1882 Act') which elucidate the expressions "vested interest" and "contingent interest" in the context of transfer of property read as under:

"19 Vested interest. - Where, on a transfer of property, an interest therein is created in favour of a person without specifying the time when it is to take effect, or in terms specifying that it is to take effect forthwith or on the happening of an appears from the terms of the transfer. A vested interest is not defected by the death of the transferee before he obtains possession.

Interpretation and Construction of Instruments - Principles - Distinction between "Settlement Deed" and "Will" - Determination - Relevant test - Test to be applied to find out whether particular instrument is a Settlement Deed or Will - Held, no strait-jacket formula has been evolved for construction of instruments - Interpreting an instrument to find out whether it is of testamentary character, which will take effect after life time of the executant or it is an instrument creating a vested interest in praesenti in favour of a person, Court should carefully examine documents as a whole and look into substance thereof - Intention appearing both by expressed language employed in instrument and by necessary implication and prohibition, if any, contained against revocation thereof - Form or nomenclature of instrument is not conclusive and Court is required to look into substance of instrument.

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Having noticed the distinction between vested interest and contingent interest, we shall now consider whether Ex.A-2 was a Settlement Deed or a Will. Although, no strait-jacket formula has been evolved for construction of such instruments, the consistent view of this Court and various High Courts is that while interpreting an instrument to find out whether it is of a testamentary character, which will take effect after the life time of the executant or it is an instrument creating a vested interest in prasenti in favour of a person, the document as a whole, look into the substance thereof, the treatment of the subject by the settlor / executant, the intention appearing both by the expressed language employed in the instrument and by necessary implication and the prohibition, if any contained against revocation thereof. It has also been held that form or nomenclature of the instrument is not conclusive and the Court is required to look into the substance thereof.

2010 (8) SCALE 430

Beera GowdaVs

State of Karnataka

CRIMINAL LAW - I.P.C. - SECTION 498A & 302 r/w 34 - EVIDENCE ACT, 1872 - SECTION 27 - 'P', aged two and half years, was the daughter of the appellant and his first wife 'JG' - Marriage between the appellant and PW.1 had taken place about five or six years earlier - It appears that at the time of the marriage PW1. was pregnant but after some time the two fell out and the appellant left her in her parents' home promising to take her back after performing the marriage of his sister - A few days later however he performed a marriage with 'I' co-accused, since acquitted - After the marriage of the appellant and 'I' the relations between the appellant and PW.1 became unpleasant and PW.1 was often assaulted - the appellant and PW.1 became unpleasant and PW.1 was often assaulted - Appellant apparently did not want to have any child from her - Prosecution case that as 'P' was an unwanted child the two accused thought it fit to get rid of her so that she could not claim any share in her father's property - Appellant accordingly obtained nitric and sulphuric acid from PW.16, a goldsmith, and this was administered to 'P' which ultimately led to her death - Appellant was arrested and on his statement u/s 27 of the Evidence Act a bottle containing a mixture of the two acids was found from the kitchen of his home - Sessions judge held that the greater possibility on the evidence was that 'P' had taken the acid by accident and that there was no evidence to suggest that it had been administered to her forcibly - Court further held that there was no evidence to show that the two accused had in any way misbehaved with PW.1 prior to the murder - Trial Court also observed that the discrepancies inter se the statements of the witnesses went to the root of the matter and as such there was a doubt as to the truthfulness of the prosecution story - High Court set aside the acquittal of appellant No.1 while maintaining that of the second accused and convicted and sentenced him u/s 302, IPC, with a sentence of imprisonment for life and fine of Rs.2000/- and in default six months R.I. - Whether the High Court was justified in interfering with the matter - Dismissing the appeal, Held, Court finds that the view taken by the Trial Court was not based on the evidence, it would defeat the ends of justice if the order was not set aside. We are of the opinion that the present case falls under the category where the High Court was fully justified in interfering in the matter.

There is one strong circumstance which has not been noticed by the either of the courts below but has been pointed out by the learned State Counsel, that nitric and sulphuric acid would not be of any domestic use and would not be available as a household article. It has come in evidence that the acid had been obtained from PW.17 and after the two acids had been mixed the concoction had been put into the mouth of child. The High Court's observation that acid had been forcibly put into the mouth is based on the medical evidence as injuries had been found all over the body including the mouth, arms and the chest which clearly showed that the child had tried to save herself and had fought back when the acid was being administered. It has rightly been pointed out by the High Court that if the acid had been taken accidentally by the child there would have been no burn injuries on other parts of the body as they would have been confined only to the month and the lips.

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2010 (8) SCALE 433

MayandiVs

State Rep. by Insp. of Police

CRIMINAL LAW - I.P.C. - SECTION 302, 506(ii), 307 & 341 - Appellant was an employee working in the kitchen of a hotel - Deceased, the Managing Director of the hotel, came to the store room for carrying out a store check - As the deceased was returning to his office after checking the store, the appellant attacked him with a sickle which he had concealed on his person - When the deceased tried to escape, the appellant made a further attack on him and caused him several injuries on his body and on his hands as well - PW.1, PW.3 and PW.4 who were around the place came rushing to rescue the deceased but he appellant nevertheless ran away from the spot - PW.2, PW.4 and several others then took the deceased to the hospital where he was admitted to the Intensive Care Unit where he died the next day - Trial Court on a consideration of the evidence convicted the appellant for an offence punishable u/s 302, 506(II) and 341, IPC - This judgment was maintained by the High Court as well - Whether the deceased who was already a heart patient and had undergone angioplasty was a fact not within the knowledge of the appellant and in this view of the matter a case u/s 302, IPC was not spelt out - Held, yes. Court alters the conviction to one u/s 326, IPC and award a sentence of 10 years R.I. and a fine of Rs. 5,000/- -Allowing the appeal in part, Held,

A. It is the admitted fact that the Doctors have not opined that the death was caused due to the injuries caused by the appellant. There is also no evidence to show that the injuries could have independently caused the death of the deceased even if the deceased had not been suffering from a heart problem. It is also the conceded position that the deceased had a serious heart problem which was matter not within that he had undergone an angioplasty but had nevertheless suffered a heart attack thereafter.

B. In this background the High Court's assertion that the death was occasioned by complications on account of the injuries caused by the appellant is not quite accurate. We are, therefore, of the opinion that the case would fall within Section 326 of the IPC and not under Section 302 of the IPC thereof.

C. Mr. R. Sundravardan's argument that this matter would nevertheless fall within Section 304 Part-I or Part -II of the IPC, is also rejected as there was no intention on the part of appellant to cause the death of the deceased nor could he be attributed with the knowledge that death would be caused.

D. We accordingly partly allow this appeal, set aside the acquittal and conviction of the appellant for the offence under Section 302 of the IPC, and alter his conviction to one under Section 326 of the IPC and award a sentence of 10 years R.I. and a fine of Rs,5,000/- in default thereof, six months R.I. The sentence under the other provisions of the IPC is maintained.

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HIGH COURT CITATIONS

2010 -4-L.W. 944

S. DuraisamyVs

The State represented by Sub Inspector of Police

Negotiable Instruments Act (1881), Section 138, I.P.C., Section 420, Evidence / Expert evidence - Examination of cheque in question by sending it to an expert, as to the age of the Ink, and whether it is altered - Dismissal of petition by lower court, on the ground as to whether the ink used to write the date the Cheque and signature of the complainant is one and the same; can be examined at Court, and that the same could not be sent out of the Court, and that it would be for the expert to come to the Court and examine the cheque challenged in the Crl.O.P. filed against the order - Order of lower court upheld - Held: there is no error in the order of the lower Court - No prejudice would be caused to the petitioner if the summary trial procedure is followed - Crl.O.P. and Crl.R.C. dismissed.

I.P.C., Section 420 - See Negotiable Instruments Act (1881), Section 138.

Evidence / Expert evidence - See Negotiable Instruments Act (1881), Section 138, I,P,C., Sec. 420

2010 -4-L.W. 966

J. Dayalan Babu and otherVs

State represented by The Inspector of Police, CBI/SCB/Navi Mumbai

I.P.C., Sections 498-A and 306, (Indian) Evidence Act, Section 32(1) Evidence regarding

case of death - Contention raised that the deceased was affected by mental illness even prior to her marriage and it was suppressed to the accused; accused who came to know after the marriage about the mental illness of the deceased, had taken steps to give treatment and the said fact is also established even by the evidence of Doctors P.Ws.3 and 4 - It was submitted that deceased had committed suicide not due to any ill-treatment by the accused and there was no demand of dowry and there was no harassment to the deceased and it was only due to her mental illness; and as the death of the deceased occurred seven years after the date of marriage, Section 113-A, Evidence Act is not attracted and no presumption could be drawn against the accused and as such, there is no material to attract the ingredients of the offence under Section 306 IPC.

Held: Dispute was only because of the mental illness of the deceased and not due to any harassment for unlawful demand or due to any cruelty to which the deceased was subjected - there is no evidence that the accused conducted themselves willfully to drive the deceased to commit suicide.

Evidence of mother of deceased P.W.5 about the statement said to have been made by the deceased could be used only under Section 32(1) of the Indian Evidence Act only for the purpose of deciding the issue regarding the cause of death of the deceased or as to any of the circumstance of the transaction which resulted in the death of the deceased - Accused are not

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liable under Section 306 IPC; part of the evidence could not be used against the accused while dealing with an offence under Section 498-A IPC as it becomes inadmissible.

Prosecution has been made out its case against the accused even for the offence under Section 498-A IPC - Appeal allowed / Conviction set aside.

2010 -4-L.W. 979

Jacob Chacko TheketalaVs

State of Tamil Nadu, Represented by CBI, New Delhi, Camp at Chennai.

I.P.C., Sections 258, 420, Criminal P.C., Section 428/Benefit of acquittal of other accused

in the connected case, Plea to set off the period of detention - Held: 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 partly allowed.

Conviction and sentence imposed on the appellant / A.4 by the trial Court under Section 255 I.P.C. set aside - Conviction and sentence imposed on the accused under Section 258 and 420 I.P.C. confirmed.

Criminal P.C., Section 428 / Benefit of acquittal of other accused in the connected case, Plea to set off the period of detention - See I.P.C., Section 258, 420.

It was submitted that appellant in this appeal from conviction on plea of guilty, that the two other co-accused viz., A.1 (Big Boss) and A.3 by name C.S.B, who also pleaded guilty and were convicted by the trial Court preferred appeals before this Court and similar benefits must be extended to this appellant also.

Question 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 through out 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 on 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

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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.

2010 -2 -L.W. (Crl.) 989

O.C. PeriyasamyVs

D. Venkatesan @ Ravi

Criminal P.C., Sections 203, 256, 190, Negotiable Instruments Act (1881), Section 138, Revision against order of dismissal of complaint by the Magistrate, after adjournment on account of absence of complainant for recording the sworn in statement - Held: Setting aside the order, in the interests of justice, the complainant must be given a chance to put forth his case and he should not be stopped at the threshold.

After taking cognizance of the complaint and issuing summons to the accused, if the complainant is absent, as per summons case procedure, the Magistrate may invoke Section 256 Cr.P.C. and acquit the accused.

After filing the complainant and the Magistrate, on receiving the complaint fixes any date for recording the sworn statement of the complainant, and the complainant is absent on that date and also on the subsequent dates fixed for the same, though there is no specific provision for discharging the accused, it would not be proper and justifiable to say that the Court has to wait compulsorily and indefinitely - In this case, the learned Magistrate, by closing the complaint, has not committed any illegality - At the same time, this Court considers the submissions made by the learned counsel for the petitioner that the representative of the complainant could not appear before the Court due to illness - Revision allowed.

Negotiable Instruments Act (1881), Section 138, Revision against order of dismissal of complaint by the Magistrate after adjournment on account of absence of complainant for recording the sworn in statement - See Criminal P.C., Section 203, 256, 190.

2010 3 MLJ (Crl) 509

C.S. Balaji and AnotherVs

State represented by the Inspector of Police,Central Bureau of Investigation, EOU, VII, New Delhi

Code of Criminal Procedure, 1973 (2 of 1974) Section 375 - Indian Penal Code (45 of 1860), Sections 255, 258 - Conviction - Appeal maintainable even if accused pleaded guilty.

FACTS IN BRIEF:

Aggrieved by an order of conviction under Section 255 of Indian Penal Code (45 of 1860), present appeal is filed.

QUERY:

Whether appeal against conviction is maintainable even if the accused pleaded guilty of charges framed against him?

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Held:

If the facts do not constitute an offence, but the charge is framed, the accused pleads guilty and convicted on such plea, such conviction is challengeable in appeal and Section 375 Cr.P.C does not stand as a bar, on the other hand it permits an appeal when the legality of the sentence is challenged.

Code of Criminal Procedure, 1973 (2 of 1974) Section 300(1) - Autrefois convict - Not permissible to convict twice for same offence.

Held:

The first accused had already been convicted and sentenced for an offence under Section 255 IPC by a Special Court, Pune for counterfeiting stamp papers at Pune. For the same offence conviction once again by another Court is not permissible and it is illegal as per Section 300(1) Cr.P.C.

2010 3 MLJ (Crl) 531

Kalyanam @ Kalyanaraman and AnotherVs

State rep. by the Inspector of Police, Annamalai Nagar Police Station, Cuddalore District.

(Crime No. 200 of 2005 of Killai Police Station)

Indian Penal Code (45 of 1860), Sections 324, 304(ii) - Conviction and sentence - Appeal - Held, not safe to base conviction on uncorroborated testimonies of witnesses.

FACTS IN BRIEF:

Challenging the conviction and sentence imposed on them by the trial Court for offences under Section 324 and 304 (ii) of IPC the accused - appellants (A1 and A2) came forward with this appeal.

QUERY:

Whether trial Court was right in convicting the appellants, while disbelieving the evidence of P.W.1 and 2 and on that basis, acquitting the co-accused?

Held:

Though the concept Falsus in unofalsus in omnibus, is not in general followed by the Indian Courts, in a case whether the truth and falsity are inseparably mixed with each other, that is to say, to put it otherwise, where the grains and the chaff cannot be separated, the Court is left with no option except to disbelieve the evidence of a witness in toto and to give the benefit of doubt in favour of the accused. In this case, the evidences of P.Ws.1 and 2 have been disbelieved insofar as A3 and A4 are concerned. Therefore, P.Ws.1 and 2 are not fully believable. Instead, even according to the trial Court, they are only partly believable. As per the law laid down by the Hon'ble Supreme Court (vide Lakh winder Singh and Others v. State of Punjab AIR 2003 SC 2577: (2003) SCC (Crl) 1426), in a case where the witnesses are partly believable and partly unbelievable, in the absence of corroboration, as a rule of prudence, it is not safe to base conviction on the uncorroborated testimonies of such witnesses. In this case, P.Ws.1 and 2 have rendered themselves unbelievable in part insofar as A3 and A4 are concerned as held by the trial Court. There is no other corroboration from any other source. The medical evidence also does not support the case propounded by P.Ws.1 and 2. Above all, as I have already stated, the very foundation of the prosecution case namely, the FIR is highly doubtful. For all these reasons, though P.Ws.1 and 2 are injured eye-witnesses, this Court is constrained to acquit A1 and A2 as it would not be safe to convict them solely on the basis of

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the evidences of P.Ws.1 and 2 alone. The impugned judgment would go to show that the trial Court has failed to consider all the above aspects. Therefore, the judgment of the trial Court needs interference at the hands of this Court.

(2010) 6 MLJ 16

B.S. Santhilal (deceased) and OthersVs

J. Samidurai and Another

Code of Civil Procedure (5 of 1908), Sections 149 and 151 - Granting extension of time for payment of deficit Court fee - No application filed under Section 149 C.P.C - Application under Section 151 filed to condone delay in representing plaint - Scope of Section 149.

FACTS IN BRIEF:

A suit for recovery of money due on the promissory note was filed but was returned for payment of deficit Court fee and to rectify defect time has been granted. But, the plaintiff has not rectified the defect and represented the plaint in time. He filed the application under Section 151 C.P.C to condone the delay of 729 days in representing the plaint. The application was dismissed by observing that no application under Section 149 C.P.C has been filed to extend the time for payment of Court fee so the plaint has been rejected. Aggrieved by the same, a revision petition has been filed by the plaintiff.

QUERY:

Whether filing an application under Section 151 C.P.C to condone the delay in representing the plaint is proper when no application has been filed under Section 149 C.P.C to extend the time for payment of Court fee?

Held:

The learned counsel for the petitioners relied on the various Court decisions and would submit that the trial Court instead of rejecting the plaint, it ought to have returned the plaint, directing the plaintiff to file a petition under Section 149 C.P.C. It is well settled principle of law that ignorance of law is not an excuse. Ignorance implies passiveness. Mistake implies action. Ignorance does not pretend to knowledge, but mistake assumes to know. Ignorance may be the result of laches, which is criminal. Mistake argues diligence, which is commendable. Mere ignorance is no mistake, yet a mistake always involves ignorance, but not that alone.

This Court is of the view that the revision petitioner has filed the suit on the last date of limitation with the Court fee of Rs. 100/- even then, without filing any application under Section 149 C.P.C., the Court has granted two weeks time for payment of deficit Court fee as well as for rectifying the other defects. But, he has not represented the plaint in time. He represented the plaint with a delay of 729 days along with a petition under Section 151 C.P.C. He had not filed any application under Section 149 C.P.C. to extend the time for payment of Court fee. In such circumstances, Court does not find any merits in this Civil Revision Petition. So, Court is of the view that the rejection order passed by the trial Court is correct, fair and proper and it does not warrant interference.

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(2010) 6 MLJ 60

ShanmugamVs

Arthanari

Code of Civil Procedure (5 of 1908), Order 21 Rule 34 - Execution of sale deed pursuant to decree - Non-serving of draft sale deed along with notice - Effect of.

FACTS IN BRIEF:

Aggrieved by the order of the lower Court dismissing the Execution Petition, present revision petition has been filed on the main ground that the lower Court should not have interpreted the Civil Rules of Practice in a hyper technical manner in dismissing the Petition.

QUERY:

Whether the executing Court is justified in dismissing the Execution Petition itself as the draft sale deed along with the notice was not served on the judgment debtor?

Held:

Even assuming that there were some procedural irregularities in issuing notice, the lower Court was not justified in dismissing the E.P. itself. The lower Court i.e. the executing Court had ample powers to give opportunity to the decree holder to serve copy of the draft sale deed to the respondent / judgment debtor through Court strictly in accordance with Order 21 Rule 34(2) read with Section 148 and 149 of C.P.C. But in this case, it appears ordinary. Notice was issued in the E.P. to the respondent. Whereupon the respondent entered appearance and that cannot be found fault with. It was at the instance of the Court alone such a notice was sent and if that notice was found by the Court not sufficient and not in accordance with Order 21 Rule 34(2) read with Sections 148 and 149 of C.P.C., the Court had ample power to direct the decree holder to serve the notice as per Form - 54 along with draft sale deed.

There is nothing to show that because of the non-service of the notice with draft sale deed at the earliest point of time, once and for all the judgment debtor had lost his right to object for the clauses to be incorporated in the sale deed. As such, the Court should have resorted to remedial measures instead of viewing it in such hyper-technical manner.

(2010) 6 MLJ 67

Lizamma UrmeseVs

S. Sankar and Another

Specific Relief Act (47 of 1963), Sections 16 and 20 - Suit for specific performance - Time not essence of contract if parties intend it to be so - Extension of time by co-owner - Receipt of amount by one of vendor - Effect of.

FACTS IN BRIEF:

Aggrieved by the order of the lower Court passed in a suit for specific performance whereby it was held that the first appellant was not a party to the extension of time and has not received the

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subsequent payments and therefore, the suit for specific performance is not maintainable against him, present appeal has been filed.

QUERY:

Whether the time extended to perform the contract and the receipt of various amounts by one of the vendor is binding on the co-vendor and whether the time is essence of contract?

Held:

Conduct of the parties would show that there was an intention for extension of time to perform the contract. The evidence of the appellant, both oral and documentary, it is proved that she was ready and willing to perform her part of the contract.

In pursuant to the contract, the first appellant was put on possession after paying a sum of Rs. 60,000/- which constitute around 60% of the sale amount. The appellant has also paid the balance consideration on various dates to one of the vendors. The appellant has performed her part of the contract and has shown the readiness and willingness to get the sale deed executed. On the contrary, the first respondent has not rescinded the contract at the earliest point of time and he has not objected to the extension of time by one of the co-owner and also the receipt of various amounts by him. The first respondent cannot claim ignorance of all those facts and take a plea that the agreement holder was not ready and willing to perform her part of the contract and time is the essence of contract.

The trial Court is wrong in holding that the sale agreement under Exhibit B-1 is seized to have its legal effect and not binding on the first respondent. The consent and acceptance of the period is implied and therefore, plaintiff is entitled to enforce the contract.

2010 - 4 - L.W. 435

A. KuppusamyVs

S. Shankar Vadivel

Specific Performance / Agreement for sale, Genuineness, Plea of Forgery, Duty of Court,

Evidence Act, Section 73 / Comparison of disputed hand writing by the Court, Power of Court, Scope, Expert evidence, Considerations.

When the Plaintiff is said to have paid a huge amount as advance towards the sale consideration, the Plaintiff has to adduce convincing evidence as to his source of money and the payment of huge amount as advance.

Court has no hesitation in holding that Exs. a.18 to A.21 were prepared at a stretch nearly four months after filing of the suit and were brought into existence after filing of the suit.

Finding of the trial Court that the Plaintiff has been dealing in several lakhs and that he is a man of means and that he is affluent and he would have no difficulty in paying the advance towards the sale consideration is erroneous and unsustainable - Sum of Rs. 20,00,000/- and Rs. 10,00,000/- allegedly paid towards advance are not small amounts - Necessarily the Plaintiff ought to have substantiated his case by adducing proper evidence to prove the consideration.

When the Defendant had taken up the plea of forgery, the Plaintiff ought to have taken steps in sending Exs. A.8 and A.10 for obtaining he opinion of the handwriting expert - But the Plaintiff remained content by examination of P.Ws. 2 to 4 - But the Defendant himself had taken steps to send the documents of Tamil Nadu Forensic Science Laboratory to get the opinion of

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handwriting expert - Trial Court ought not to have ventured into the opinion of the handwriting expert with so much of stress and vigour - By over-stressing the evidence of handwriting expert, the trial Court has not properly analysed the core defence plea and the other formidable circumstance pointed out by the Defendant.

The science of handwriting is not an accurate one and there is likelihood of errors creeping in - In our considered view, the trial Court ought not to have ventured into comparison of the defendant's other signatures to say that there is no consistency in the signature of the Defendant - The trial Court did not keep in view that they are bound to be natural variation in the signature of any person.

It would be too hazardous for a Court to use its own eyes merely on the basis of personal comparison to decide the vital issues between the parties on the question of handwriting of a person - Though there is no legal bar to the judge using his own eyes to compare the disputed writings with the evidence of handwriting expert, as a matter of prudence, and caution, the courts should hesitate to base its finding with regard to the identity of handwriting, which forms sheet anchor in a case.

2010 - 4 - L.W. 344

Nilopher & 4 othersVs

Seyeedha & 10 others

Muslim Law / Partition, Marriage, Proof of, Evidence Act, Section 47,50,114 / Handwriting, Proof of, Opinion of relatives when relevant to prove marriage.

Held:

Handwriting may be proved by the opinion of any person who is acquainted with the handwriting of the man alleged to have written the document - A person may be acquainted with he handwriting of another person in three ways, (i) when he has seen that person write; (ii) when he has received communication purporting to be written by that person in answer to documents purporting to be written by himself, although neither of them saw each other write; (iii) when in the ordinary course of business documents purporting to be written by that person have been habitually submitted to him.

If a person who is not summoned has been examined, his evidence cannot be rejected on the ground that he is not the summoned witness, more so, when the summon is only for production of records.

To prove the existence or non-existence of relationship, under Section 50 of Evidence Act, evidence of members of family and how members of family treated them are relevant.

Reading of Section 50 and 114 of the Evidence Act together, it is clear that the act of marriage can be presumed from the common course of natural events and the conduct of parties as they are borne out by the facts of a particular case.

Evidence Act, Section 47, 50, 114 / Handwriting, Proof of, Opinion of relatives when relevant to prove marriage - See Muslim Law / Partition, Marriage, Proof of.

This Appeal arises out of the Judgment in O.S.No.5 of 2006 dismissing the Appellants/Plaintiffs suit for partition claiming 91/112 share in the suit properties. Unsuccessful Plaintiffs are the Appellants.

Held

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It is well settled that in determining the question of valid marriage evidence like (i) marriage certificate; (ii) opinion of the family members and the society; (iii) children born out of lawful wedlock are relevant. In the instant case to prove the marriage, Plaintiffs have adduced various limbs of evidence.

2010 - 4 - L.W. 366

R. Chitra & 4 othersVs

V.A. Mavalirajan

Easements Act (1882), Section 15 / Suit for declaration of right of access and use of suit passage.

An easement can only be claimed in respect of somebody else's property and a man cannot claim an easement over his own property - For more than a statutory period, the Plaintiff has openly exercised right of pathway through the suit pathway, which is sufficient to show that during the whole of the prescription period they were consciously asserting a right of an easement.

Under Section 15, the person claiming a right of way has not only to establish that he enjoyed the right for 20 years peacefully and openly, but also that the right was enjoyed "as of right" - In the instant case, the strip of land, on which the Plaintiff was exercising his right of way, had been admittedly passage which is 5 ft. in width runs starting form the Kalingarayan Street to the house of the Plaintiff on the western end of the passage.

Plaintiff has proved that the suit pathway was used by them from the time of their predecessors, that is for more than 30 years.

Suit instituted by the Plaintiff/mother of the Appellants for declaration that the Plaintiff has got the absolute right of access and use of the passage starting from Kalingarayan Street, Chennai-21 and going straight upto the building at Door No.9, Kalingarayan 1st lane, Chennai-21 marked as 'ABCD' in the plaint plan and for injunction restraining the Defendant from interfering with the Plaintiff's possession and enjoyment of the said passage.

The Plaintiff has claimed exclusive right to the suit passage and sued for declaration of right of access and use of the suit passage entering from Kalingarayan Street.

2010 (3) TLNJ 443 (Civil)

Tmt. A.M. Subburathinam otherVs

Balaji

Civil Procedure Code 1908 as amended Order 9, Rule 13 - See Limitation Act 1963, Section 5.

Limitation Act 1963, Section 5 - Suit for specific performance - decreed exparte - petition filed to set aide with application to condone delay 334 days - rejected by trial court - on revision held that the court should make liberal approach while considering application to condone delay - opportunity to contest suit to be given on payment of costs by way of compensation - petition to condone delay allowed with direction to pay costs - Civil Revision Petition allowed.

Civil Revision Petition filed under Section 115 of the Civil Procedure Code against the order dated 28.3.2008 in I.A.No. 697 of 2007 in O.S.No.205 of 2006 on the Principal Subordinate Judge, Salem.

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2010 (3) TLNJ 468(Civil)

AnnalakshmiVs

Jagadeswari

Civil Procedure Code 1908 as amended, Section 11 - (Res Judicate) petition to condone delay ordered on payment of costs - extension sough for payment by petition - petition unnumbered but prayer rejected - another petition filed seeking same relief and dismissed - on revision High Court expressed that the principles of resjudica is applicable to interim orders also and further held that court is barred from reconsidering the prayer once again if disallowed earlier - Hence CRP dismissed.

Civil Procedure Code 1908 as amended, Section 148 - See Civil Procedure Code 1908 as amended, Section 11.

Limitation Act 1963, Section 5 - See Civil Procedure Code 1908 as amended, Sec. 11.

2010 (3) TLNJ 412 (Civil)

The Managing Director, State Express Transport CorporationVs

Ravi

Motor Vehicles Act 1988, Section 166 - Deceased was a 25 year women employed in a Company and earning an income of Rs.3000pm. - the tribunal awarded a compensation of Rs.3,18,000/- together with interest - the appellant a Sate Transport Corporation claimed that no proof of income was filed or produced - held, the Honourable Court, adopting the formula laid down in National Insurance Company vs. Minor Deepika and others, reported in 2009(3) TLNJ 95 (Civil), held that earning of the income is not proved, the deceased being a housewife is entitle to a sum of Rs.3500 p.m. - therefore the deceased being a young women, and the respondent also being a young man, compensation towards loss of consortium and for love and affection can be awarded - CMA dismissed.

2010 (3) TLNJ 418 (Civil)

The Branch Manager, New India Assurance Company LimitedVs

Narayanan other

Motor Vehicles Act 1988, Section 173 - Principle of Pay and Recover - Deceased being a girl of 12 years and working as an agricultural coolie - this principle ought to be applied - held, disposing the appeal, the claimant permitted to withdraw the amounts and the appellant is directed the execution proceedings against the owner of the vehicle to recover the amounts - CMA allowed.

2010 (5) CTC 1

K. Appadurai, S/o. P. Kandavel, Bathrakaliamman Koil Street, Vadugapatti(PO)

Vs The Secretary to Government, Public (Special . A) Department,

Government of Tamil Nadu, Secretariat

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Constitution of India, Articles 233, 234, 21 & 14 - Advocates Act, 1961 (25 of 1961), Sections 2(1)(a), 16, 17, 30 & 33 - Indian Bar Councils Act, 1926 (38 of 1926) - Bar Council of India Rules, Rule 49 - Appointment of District Judges - Challenge to Notification calling for Applications for appointment to post of District Judges - Legality - Validity - Notification challenged on ground that inviting Applications from Assistant Public Prosecutors Grade 1 and Grade 2 for appointment to post of District Judge is illegal, unconstitutional and that an Advocate who employed as full time salary employee of Government cannot practice as an Advocate so long as he continues in to participate in District Judge (Entry Level) examination - Held, all persons who have been enrolled as Advocates are entitled to practice in names have been delisted or cancelled from role of Advocates maintained by Bar Council - Nature of duties of Assistant Public Advocates - Assistant Public Prosecutors can continue to practice as remain in role of Advocates maintained by Bar Council - Rule 49 of Bar Council of India Rules provides an exception where in case of Law Officer of Government and corporate bodies, despite they being employed by Government as Law Officer, they cannot cease to be Advocates so long as they are required to plead in Courts - Advocate on terms of payment of salary would not cease to be an Advocate in terms of Rule 49 of Bar Council of India Rules - Advocate appointed Secretariats and handle legal files, cease to be an Advocate - Assistant Public Prosecutors are entitled to participate in District Judges examination and there is no bar either under Constitution of India or under provisions of Advocates Act - Notification issued by the Government is Constitutionally valid - Writ Petitions are dismissed.

Facts:

Writ Petitions have been filed challenging the Notification calling for Applications for appointment to the post of District Judge on ground that Assistant Public prosecutors are not eligible to participate in the District Judge Examination.

Held:

In the light of the ratio laid down by the Supreme Court in the decisions quoted herein before, it can safely be concluded that the nature of duties of the Assistant Public Prosecutors is to act and plead in Courts of Law on behalf of the State as Advocates. Even after becoming Assistant Public Prosecutors they continue to practice as Advocates and plead the cases on behalf of the Government and their names remained in the roll of Advocates maintained by the Bar Council. As Public Prosecutors they acquired much experience in dealing Criminal cases.

2010 (5) CTC 33

M. SureshVs

The Deputy Inspector General of Police, Vellore Range, Vellore other

Service Law - Dismissal - Reinstatement - Entitlement to - Petitioner was dismissed from service on account of conviction by Criminal Court - Later on Petitioner was released under Probation of Offenders Act - Whether person who got released under Probation of Offenders Act, entitled for reinstatement of Service - Law laid down in Dalbir Singh v. State of Haryana, 2000(5) SCC 82; Trikha Ram v. V.K. Seth, 1987 (Supp) SCC 39 applied and followed - probation of Offenders Act, 1958 (20 of 1958), Sections 4 & 12.

Facts:

Petitioner filed a Writ Petition seeking reinstatement into service, on ground that he was released under the Probation of Offenders Act. Petitioner was dismissed from service, on account of conviction by Criminal Court. Subsequently Petitioner was released under the provisions of Probation of Offenders Act.

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Held:

From the order passed in Criminal Revision case, it is evident that this Court was apprised of the dismissal order passed by the department and the Petitioner relied on the said fact for showing leniency. This Court considered the said fact i.e. only insofar as the sentence, instead of sending the Petitioner to prison, be was ordered to be released under Section 4 of the Probation of Offenders Act, 1958. The decision cited by the learned Counsel for the Petitioner is not supporting the case of the Petitioner in any manner. In the said case, viz., P. Subramanian v. Join Registrar of Co-operative Societies, 2000(4) CTC 409, this Court taking note directed to refund the fine amount and let off the accused person under Section 3 of the Probation of Offenders Act, 1958. Here, the conviction imposed against the Petitioner is not set aside and the leniency was shown to the Petitioner only in respect of sentence after noticing the fact of dismissal of the Petitioner only in respect of sentence after noticing the fact of dismissal of the Petitioner from his service. The order passed by this Court in the Criminal Revision filed by the Petitioner is not challenged or modified. Hence, the Petitioner is not entitled to make a submission seeking cancellation of the dismissal order, as the said submission is contrary to the submission made by the Petitioner before this Court in the said Criminal Revision case and get him released under the Probation of Offenders Act,

This Court is bound to consider under what circumstance the Petitioner was released under Section 4 of the Probation of Offenders Act, 1958 by the Criminal Court as the wrong doer's background, crime committed whether he deserves to be released under the Probation of Offenders Act, 1958 on the facts and circumstances of a given case. The said principle is explained by the Honourable Supreme Court in the decision reported in Dalbir Singh v. State of Haryana, 2000(3) Supreme 749: 2000(5) SCC 82.

The argument of the Petitioner that the he is entitled to get reinstatement under Section 12 of the Probation of Offenders Act, 1958 also cannot be accepted in the light of the judgment of the Supreme Court reported in Trikha Ram v. V.K. Seth, 1987 (Supp) SCC 39 as the Petitioner was dismissed earlier.

2010 (5) CTC 40

Girish Kumar H. JainVs

Rani Mary

Specific performance - Plaintiff filed Suit to enforce Sale Agreement - Defendant denied agreement as loan transaction - Trial Court dismissed Suit holding Sale Agreement as invalid and non-est - Appeal against - On facts Defendant found to be an illiterate woman aged 65 years with no ability to read or write and had affixed thumb impression in a document in English - Plaintiff failed to prove that Defendant had executed document understanding recitals - Decree of Trial Court, dismissing Suit, held, justified.

Facts:

Plaintiff filed Suit for Specific Performance to enforce a sale agreement. Defendant denied the transaction contending that she had borrowed Rs. 25,000/- and re-paid the same and the Plaintiff capitalizing her thumb impression in a document had brought about a false Suit. Trial Court dismissed the Suit holding that the Defendant is an illiterate women who does not know to read or write. She had affixed her thumb impression in the documents Ex.A1 which was found to be in English. The Trial Court while dismissing the Suit observed that the Sale Agreement is valid and non-est in the eye of law. The Plaintiff challenged the decree by way of Appeal. The Hon'ble High Court while concurring with the Judgment of the Trial Court held:

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A perusal of Ex.A.1 Simple Mortgage Deed for Rs. 1,00,000/- dated 17.5.1993 shows that the Respondent/Defendant had affixed her Left Thumb Impression in the said document. It is to be noted that the recitals of Ex.A.1-Simple Mortgage Deed are in English. Even before the Trial Court the Respondent/Defendant while tendering her evidence had affixed her Left Thumb Impression in the Deposition. When the Respondent/Defendant (D.W.1) had taken a specific stand that she does not know to write and read and more so, when she affixed her LTI in Ex.A.1- Mortgage Deed dated 17.5.1993, the onus is on the Appellant/Plaintiff to prove to the satisfaction of this Court that the Respondent/Defendant had understood the tenor of the recitals in English in Tamil and only after understanding of the same she had affixed her thumb impression. No satisfactory explanation was forth coming on the said of the Appellant/Plaintiff as to why the Appellant/Plaintiff's father was not examined as a witness before the Trial Court more so, when the said Mortgage Deed was in favour of one Dilipkumar and his father. In short, when the Respondent/Defendant(D.W.1) was an illiterate and old person aged 65, then, in the instant case, on the basis of oral and documentary evidence on record and also on the basis of the evidence of P.W.1 to P.W.4 and D.W.1, this Court comes to an inevitable conclusion that the Appellant/Plaintiff had not proved to the subjective satisfaction of this Court in a coherent and convincing fashion that it was the Respondent/Defendant had executed Ex.A-1-Mortgage Deed dated 17.5.1993 in favour of the Appellant/Plaintiff's father and the Point No.1 is answered against the Appellant/Plaintiff.

2010 (5) CTC 51

Parameswari @ GnanasakthiVs

Raja Ratinam otherand

Raja RatinamVs

Parameswari @ Gnana Sakthi other

Hindu Succession Act, 1955 (25 of 1955) - Hindu Succession (Amendment) Act, 2005 (39 of 2005) - Effect of - Daughters, who were married before coming into force of Tamil Nadu Act 1 of 1990 on 25.3.1989, were not entitled to benefit of same - Since marriage of Plaintiff took place in year 1975, she is not entitled to benefit of Tamil Nadu Act 1 of 1990 - Tamil Nadu Act 1 of 1990 has been replaced by a similar provision viz. Hindu Succession (Amendment) Act, 2005 - Appeal filed by 1st Defendant dismissed - Appeal filed by Plaintiff partially allowed.

Facts:

Two Appeals arose out of a Suit for partition. Plaintiff had filed the Appeal against the disallowed portion of her claim and the 1st Defendant had challenged the preliminary decree. High Court, amongst other issues, dealt with the right of daughter under the Hindu Succession Act, prior to 1989 and after 2005 and the effect of Tamil Nadu Act 1 of 1990 and Hindu Succession (Amendment) Act, 2005.Held:

The amendment brought by Hindu Succession (Tamil Nadu Amendment) Act, 1989 made the daughters, who were not married on the date of commencement of the said amendment alone as coparceners and those who were married before the date of commencement of the amendment were not entitled to the benefit of the amendment. The said amendment has now been replaced by a similar provision by the central Act, namely Hindu Succession (Amendment) Act, 2005. The said amendment was not given retrospective effect. But, so far as Tamil Nadu is concerned, the said amendment was given effect to from 25.03.1989. In this case the Plaintiff shall not be benefited by the amendment, as admittedly she got married before the commencement of the Hindu Succession (Tamil Nadu Amendment) Act, 1989. P.W.1 admits that his marriage with the Plaintiff took place in 1975. As such Kalayanasabesa Deekshidhar and his son, namely the Second Defendant alone were the coparceners entitled to equal share in the Suit 'A' schedule property and on the death of kalayanasabesa Deekshidhar, his half share devolved upon his children, namely the Plaintiff and she

22

Second Defendant. Thus the Plaintiff become entitled to 1/4 share and the Second Defendant became entitled to 1/2 + 1/4 = 3/4 share. The said 3/4 share of the Second Defendant was conveyed by him to the Third Defendant under a Sale Deed dated 06.09.1999, a copy of which has been marked as Ex.B29. Therefore, there is no defect or infirmity in the finding of the Trial Court that the Plaintiff is entitled to 1/4 share alone in Suit 'A' schedule property and the remaining 3/4 share belongs to the Third Defendant, who has derived title from the Second Defendant. The Court below has rightly come to the conclusion that the Plaintiff shall be entitled to a preliminary decree for partition on the Suit 'A' schedule property directing the division of the same into four equal shares and allotment of one such share to the Plaintiff and for the application of provisions of the Partition Act in case the property is found to be indivisible.

2010 (5) CTC 70

V. GovindaswamyVs

Mangammal and 7 others

Partition Act, 1893 (4 of 1893) Section 3 & 4 - Transfer of Property Act, 1882 (4 of 1882), Section 44 - Partition Suit - Application seeking direction for fixation of value of property and to sell same or alternatively to direct Defendants to sell their shares - Application dismissed - Revision against that order - There is no law to effect that a co-share must sell his share only to other co-sharer - A stranger can also purchase shares even in a dwelling house - Section 44 of Transfer of Property Act protects family members against intrusion by outsiders, in dwelling house - Application to purchase share is maintainable - Suit filed only for partition claiming 1/6th share for sale of suit property and payment of sale proceeds for proportionate share -No error in impugned order.

Facts:

In a partition Suit claiming 1/6th share, for sale of the suit property and for allotting 1/6th share out of the sale proceeds. Application was filed by the Plaintiff seeking a direction for valuation of the share of the Defendants, with a view to sell the same to the Plaintiff. Application was dismissed by the Trial Court and in the Revision, High Court held that the Application is beyond the scope of the Suit relief and dismissed the same.

Held:

It has been categorically held by the Hon'ble Apex Court that there is no law which would say that a co-sharer must sell his/her share only other co-sharer. Hence, a stranger/outsiders can also purchase shares even in a dwelling house, though Section 44 of the Trial Court and in the Revision, High Court held that the Application is beyond the scope of the Suit relief and dismissed the same.

2010 (5) CTC 77

C. Velu @ Ventatesalam and 2 othersVs

S. kandasamy Chettiar

Code of Civil Procedure, 1908 (5 of 1908), Order 21, Rules 72 & 72-A - Revision against order rejecting Application challenging sale made in pursuance of an order permitting decree-holder to bid in Court auction - Suit was filed for bringing mortgage property for sale - Final decree was also passed and Execution Petition was filed to bring mortgage property for sale - Decree holder was permitted to bid in Court auction, but Executing Court failed to fix reserve price as contemplated under Rule 71-A(2) - Judgment-debtor sought to set aside same - After passing of order in Application under Order 21, Rule 72-A, no proclamation was made - On date of sale, permission to bid was granted to one of decree holders, without fixing reserve price - Executing Court has not considered object of Order 21, Rule 72-A - It has permitted decree holder to snatch away mortgaged property - Mortgaged property was valued by Court Amin at

23

his whim and fancies - Courts should ensure that mortgagee should not be allowed to snatch away property of mortgagor - Sale set aside - Civil Revision Petition allowed.

Facts:

Mortgagee brought the mortgaged property for sale in pursuance of the final decree passed in a Suit to bring the mortgage property for sale. Decree holder obtained permission of the Court bid in auction and the Court proceeded with the auction sale without fixing the reserve price as required under Order 21, Rule 72-A if the Code of Civil Procedure. Said sale was challenged by the judgment-debtor under Section 47 of the Code of Civil Procedure. Application filed by the judgment-debtor was dismissed and order was challenged in Revision. High Court set aside the sale and allowed the Revision.

Held:From the bare poring over and perusal of the above judgments cited on both sides, this Court

could harmoniously formulate an opinion to the effect the incidentally while the Court finding fault with the lower Court relating to non adherence to the mandatory provisions as contained in Order 21, Rule 72-A(2) of C.P.C. should also consider as to whether any substantial injury was caused to the judgment-debtors. The principle of res ipsa loquithur is squarely applicable to this case in addition to the maxims (1) Actus curiae neminem gravabit - An act of Court shall prejudice no man; (2) Actus legis nemini facit injuriam-the act of the law does injury to no one; (3) Executio juris non habet injuriam- The execution of law does on injury.

* * * * * * *

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