[No.215]

Supreme Court

• Rahul Builders v. Arihant Fertilizers and Chemical and Anr

Respondent entered into contract with Appellant, a partnership firm for construction work. Appellant submitted bills for execution of contractual work against which Respondent No. 1 made partial payment. A cheque for an 'X' amount was issued by Respondent No. 1, which on presentation was returned on the ground "Account closed". Notice served upon the Respondent No.1, whereby entire bill payment was asked to be remitted within 10 days of the receipt thereof. Complaint filed thereafter by Appellant against the Respondent No.1. Rejection of Complaint sought on the ground that the notice issued was invalid. Application was rejected and revision filed against thereto was also dismissed. High Court by impugned Order quashed the criminal proceedings holding the notice as not valid in law and did not serve the statutory requirements of Provisos (b) and (c) of section 138 of the Act. Hence, present appeal. Whether non compliance of provision would lead to quashing of a criminal proceedings? Held, service of a notice is imperative in character for maintaining a complaint. Statute envisages application of the penal provisions, which is to be construed strictly. Condition precedent wherefore is service of notice. An omnibus notice without specifying as to what was the amount due under the dishonoured cheque would not sub serve the requirement of law. Respondent No. 1 was not called upon to pay the amount which was payable under the cheque issued by it. No merit present in the Appeal and hence accordingly dismissed.

• Muthu v. State by Inspector of Police, Tamil Nadu

Appellant-accused, Muthu, after opening his shop was arranging the articles kept inside it. At that time, the deceased who used to collect waste papers from the roadside collected the waste papers and cardboard boxes and threw them inside the shop of the accused. Altercation started between both of them. Deceased thereupon pushed the accused, who then took a knife lying at the top of a table in the shop and stabbed the deceased. The deceased fell down due to the injury caused and died. Appellant convicted and sentenced to life imprisonment for committing offence punishable under Section 302 of the Indian Penal Code, 1860. Conviction on appeal upheld by the High Court. Hence, present appeal. Held, incident in question occurred in a sudden fight and a heat of passion by a sudden quarrel without the Appellant having taken undue advantage or acted in a cruel or unusual manner. Appellant hence, entitled to the benefit of Exceptions 1 and 4 and the case comes under Section 304 IPC. No motive or intention to cause the death of the deceased evident as the accused picked up knife during the scuffle with the deceased. Weapon was not initially in the hand of the accused, but was picked up from the spot during the altercation. Present case only of a culpable homicide not amounting to murder under Section 304 rather than under Section 302 of the Code. Therefore, Sentence substituted by the sentence of five years simple imprisonment. Appeal disposed off accordingly.

High Courts

Delhi

• Bank of Foreign EX. off. U.S.S.R  V.  U.O.I

Petitioner was issued show cause notice under FERA. Petitioner claims that with the advent and coming into force of FEMA, he should not be subjected to proceedings initiated under FERA which was repealed by FEMA. Hence, present petition. Held, the cumulative effect of Section 49 of FEMA and Section 6 of the General Clauses Act are that though FERA stands repealed, yet in respect of the investigations pending before the various authorities, the liability under the FERA, has to be enforced and adjudicated. Therefore, proceedings pursuant to the show cause notice issued against the petitioner shall be concluded.

• R.K. Saraf  V.  The Assistant Registrar of Trade Marks & Another

Petitioner acquired impugned trademark through assignment. Thereafter, first respondent Assistant Registrar issued show cause notice for removing the impugned trademark from the Register of Trademarks for non-payment of renewal fees. Petitioner opposed same on ground that first respondent should have issued petitioner notice of renewal of fees before proceeding to remove the impugned trademark. Hence, present petition. Whether petitioner was right in approaching court for a writ when alternative remedy available was not exhausted by Petitioner? Held, although there is no thumb rule that alternative remedies statutory remedies should be exhausted before a writ can be issued by the Court under Article 226, yet the jurisdiction of the Court is discretionary and should be used circumspectly. Therefore, appellate remedy to be exhausted before the Petitioner approaches court under Article 226.

Gujarat

• Kishangiri Mangalgiri Goswami v. State of Gujarat

Appellant was convicted by trial court judge for abetting suicide of victim by inflicting mental and physical torture on victim and demanding dowry. Appellant challenged his conviction on ground that the prosecution could not establish by convincing evidence that the acts of Appellant drove the victim to commit suicide. Hence, present appeal. Held, on a bare perusal of Section 306, it becomes clear that if any person commits suicide, then whoever abets the commission of suicide shall be punishable. In case where the husband is found to have harassed his wife to such an extent as to drive her to commit suicide, then the provisions of Section 306 would be attracted. In the present case, the prosecution has established that mental and physical torture was inflicted on victim by the Appellant after his marriage and that the consistent torture which was inflicted on victim became so unbearable that she was driven to commit suicide within the meaning of Section 306 IPC. Therefore, appeal dismissed.

PIB

• Approval to Pursuance of the Gram Nyayalayas Bill, 2007 With Certain Official Amendments

PIB Dated 13.12.2007: The Union Cabinet gave its approval for further pursuing the Gram Nyayalayas Bill, 2007 in Parliament and to move Official Amendments in Rajya Sabha. This Legislation is expected to reduce considerable number of pending cases in subordinate judiciary and seeks to establish a system of judiciary which will be less expensive, free from protracted procedural wrangles, quick and available at the grass-roots level, accessible to the common man and render justice to him as enshrined in Article 39A of the Constitution.

Telecom Regulatory Authority of India (TRAI)

• Implementation of Mobile Number Portability (MNP)

Press Release No: 101/2007 dated 04.12.2007: The Telecom Regulatory Authority of India had submitted its recommendation on Mobile Number Portability within License Service Area to DOT and Government has decided to introduce Mobile Number Portability in Phase-I in the four Metros cities i.e. Delhi, Mumbai, Kolkata and Chennai by the fourth quarter of 2008. Number Portability enables end user to retain their telephone number without compromising on quality, reliability and operational convenience when they change their service provider in a service area.

Insurance Regulatory and Development Authority (IRDA)

• Reporting of Maintenance of Solvency Margin Ratio

Circular No: 46/IRDA/F&A/Nov 07 Dated 22.11.2007: As per IRDA regulations all insurance companies are required to maintain the solvency ratio of 1.5 at all times. Further, IRDA (Assets, Liabilities and Solvency Margin of Insurers) Regulations, 2000 require all insurers to file the Statement of Solvency Margin (General Insurers) as at 31 st March every year. It has now been decided that all non-life insurance companies shall also file their solvency position as at the end of each quarter. This is to enable insurance companies to lay down their business plans and to be in the position to meet their capital requirements in a timely manner.

Cases

• Thu v. Attorney Gen. US

In the present case, the petitioner, a native of Burma, filed application seeking asylum in United States on ground of military rule in Burma. Immigration Judge however denied him same on ground that petitioner's testimonies was not credible enough to warrant asylum. Petitioner challenged same on appeal to Board of Immigration Appeals (BIA) citing that the Immigration Judge had not properly considered the evidence adduced. However, the Board of Immigration Appeals also dismissed the appeal by petitioner. Hence, present review petition. Held, the Immigration Judge failed to consider all of the evidence in the record, including particularly the United States Department of State Country Report on Human Rights Practices in Burma. Therefore, petition for review granted and case remanded to the BIA for a new hearing.

• Davis v. Blige

In the present copyright infringement suit, plaintiff appeals from an order of the United States District Court for the Southern District of New York granting defendants' motion for summary judgment on plaintiff's copyright-related claims. The District Court concluded that the plaintiff's co-author transferred his rights under copyright to one of the defendants through a written agreement and that the transfer, which was "retroactive" barred plaintiff's claim of infringement against the defendant, who was the beneficiary of the transfer, and his licensees. Plaintiff argues on appeal that the retroactive transfer was invalid and that plaintiff's claims were not barred by the retroactive transfer. Whether a copyright co-owner can convey his copyright interest to a third party retroactively, thereby defeating a claim of infringement asserted against that third party by another co-owner? Held, the grant of a license by one co-owner cannot deprive the other co-owner of the right to sue for accrued damages for past infringement. That would require a release, not a license, and the rights of a co-owner, in the absence of agreement to the contrary do not extend to granting a release that would defeat an action by other co-owners to recover damages for past infringement. The prospective nature of licenses has long been recognized in the law of patents. Copyright licensing like patent licensing is prospective in nature. Therefore, judgement of lower court is vacated and remanded.

News

• Nigeria carrying out secret executions: Amnesty

Nigeria has secretly carried out at least seven state executions in recent years despite official denials, Amnesty International claimed in a new report. The executed men, who were all hanged, were generally tried without representation and not given any opportunity to appeal their convictions. Amnesty accused Nigeria of "misleading the world," and called on the country to impose a moratorium on the death penalty. Last month, Nigeria voted against a UN General Assembly Third Committee resolution to place a worldwide moratorium on the death penalty.

• Federal judge rules White House visitor logs are public records

A federal judge ruled that White House visitor logs are public documents, rejecting a Bush administration bid to have the logs treated as confidential presidential records. Visitor logs are compiled by the Secret Service, and thus subject to Freedom of Information Act (FOIA) requests; the Bush administration had ordered that the logs be submitted to the White House, so that they would fall outside the domain of FOIA. Watchdog group Citizens for Responsibility and Ethics in Washington (CREW) brought the lawsuit, seeking logs regarding the White House visits of prominent conservative religious figures, including James Dobson and Jerry Falwell.

• Former Uruguay military dictator indicted for alleged crimes against humanity

Former Uruguay military dictator and army chief Gregorio Alvarez was charged with crimes against humanity allegedly committed during the country's 1973-85 period of military rule and specifically for his alleged role in the secret transfers of several political prisoners in 1978, who disappeared and are presumed dead. He faces up to 25 years in prison if found guilty. Alvarez has denied any involvement in the disappearances, as well as any knowledge of Operation Condor, a co-ordinated effort by South American dictators to dispose of members of "subversive" groups during the 1970s.

• Zimbabwe amends controversial public order law

The government of Zimbabwean has amended the controversial Public Order and Security Act. The law prohibits public political gatherings without prior police approval. If police turn down a party's application to hold a rally, the party can appeal its case to the Minister of Home Affairs, whom opposition forces say is biased as a member of the ruling party. Under the new amendments, political parties will be able to appeal to a magistrate instead. Police will also be required to explain their reasons for denying rally permits.

• New Jersey governor signs bill abolishing death penalty.

New Jersey Governor Jon Corzine signed into law a bill ending the use of capital punishment making New Jersey the first state to abolish the use of the death penalty since the US Supreme Court reinstated it nationally in 1976. The legislation was passed by the New Jersey Assembly last week, just days after being approved by the state Senate. Eight inmates were on New Jersey's death row when the legislation was passed by the state legislature, but Corzine commuted their sentences to life in prison without parole.