[No.224]

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 was served upon the Respondent No.1, whereby entire bill payment was asked to be remitted within 10 days of the receipt thereof. Complaint was filed thereafter by Appellant against the Respondent No.1. Rejection of Complaint was 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 that the notice was not valid in law and did not serve the statutory requirements of Provisos (b) and (c) of Section 138 of the N.I Act. Hence, present appeal. Whether non compliance of provision would lead to quashing of a criminal proceeding? Held, service of a notice is imperative in character for maintaining a complaint. Operation of Section 138 of the Act is limited by the proviso. When the proviso applies, the main section would not. Statute envisages application of the penal provisions, which is to be construed strictly. Condition precedent 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. Therefore, no merit present in the Appeal and hence accordingly dismissed.

• Modipon Fibre Company, Modinagar, U.P. v.Commissioner of Central Excise, Meerut.

Notification was issued by the Gujarat Government regarding Turn over Tax (TOT) deduction on sale to backward area and areas other than the backward area, wherein TOT deduction on sale to backward area was 0.5% whereas TOT deduction on sale to normal area was 2%. Thus two rates of TOT deduction existed. Assessee was in to manufacturing of Nylon and Polyester in its factory at UP and had various Depots situated all over India including Surat in Gujarat from where the Yarn was sold to dealers. Assessee used to pay duty during the relevant period, at the time of removal of yarn, on the basis of depot sale price, after claiming permissible deductions. Assessee wrongfully claimed deductions at a higher rate of 2 per cent as against the rate of 0.5 per cent allowed for a normal area. Respondent called Appellant to pay Excise duty on the differential value. Demand was confirmed by all the authorities. Hence, present appeal. Held, it was clear that on the date, when the Assessee filed its price declaration under Rule 173-C it was aware that there was an exemption Notification dated, 19th October, 1993 as per there were two types of sales, namely, Backward Area Sales and Normal Area Sales existed. Rate of TOT in respect of Backward Area Sales was 0.5 per cent whereas the rate of TOT for Normal Area Sales was at 2 per cent and yet the Assessee after suppressing the aforestated data claimed TOT deductions at the rate of 2per cent for all clearances. Department therefore, was justified in calling upon the Assessee to pay differential Excise duty. Therefore, demand of department is confirmed.

High Courts

Madras

• Bajaj Auto Ltd. V. TVS Motor Co. Ltd

Plaintiff-applicant and defendant-respondent are both reputed bike-manufacturing companies in India. Plaintiff-applicant filed suit against defendant-respondent praying for interim relief and claiming patent infringement by defendant in respect of its patented technology used in motorbike engine. Respondent contended that there is no case of patent infringement as its product is a variant of plaintiff's patented product and is not similar to same. Whether plaintiff-applicant has prima facie proved patent infringement by defendant to be entitled to relief of injunction? Held, the product which is attempted to be marketed by the respondent is prima facie similar to the applicant's patented product. The Division Bench of Delhi High Court in Raj Prakash v. Mangat Ram Choudhary and Ors has held that a person is guilty of infringement if he makes what is in substance the equivalent of the patented article. Trifling or unessential variations have to be ignored. Therefore, the applicant has made out a prima facie case for injunction against the respondent. Interim injunction is granted.

Bombay

• Citizen Forum, Maharashtra, Nagpur, through its Secretary Shri Rajiv, Rahul, Nagpur and Anil, Nagpur v.State of Maharashtra, through its Secretary, Mumbai

Agreement entered into between Respondent No. 2 and Respondent No. 4 for appointment of distribution franchisees of electricity in urban area. Petitioners challenged appointment of distribution franchisees for distribution of electricity in urban areas by Respondent No. 2, stating that it is illegal and against provisions of Section 5 of Electricity Act, 2003 and National Electricity Policy. Held, it is true that Section 5 deals with national policy on electrification and local distribution in rural area. However, said provisions cannot be considered in isolation without taking into consideration the provisions of Sections 2(27), 2(49), 3 and 14 of the Act of 2003. On conjoint reading of provisions of Section 2(27), 2(49) and seventh proviso to Section 14 of the Act of 2003, it is implicitly clear that distribution licensee is legally competent to appoint a franchisee in the area under its licence and such franchisee does not have to obtain a separate licence. Therefore, appointment of distribution franchisee by the Respondent No. 2 is consistent with the provisions of Act of 2003 as well as National Electricity Policy.

• Abdul Rashid Khan, Mumbai v. Brihanmumbai Mahanagarpalika

Plaintiff-Appellant filed suit seeking to restrain Defendant-Municipal Corporation from demolishing suit premises contending that no due process of law was followed by defendant as no statutory notice was issued to him. However, trial court ruled in favour of defendant. Hence, present appeal. Held, from the language of Section 55(1) of Maharashtra Regional and Town Planning Act, it becomes clear that where any person has carried out any development of a temporary nature unauthorizedly, the Planning Authority may by an order in writing direct that person to remove any structure or work erected or discontinue the use of land made, unauthorizedly within 15 days of the receipt of the order. Therefore, receipt or service of the order is important. In the present case, the Corporation had never issued notice or order under Section 55 of the M.R.T.P. Act addressed to the plaintiff. Admittedly, no such order or notice was served or tendered to him nor it was sent to him by registered post. Therefore, any action taken by the Municipal Corporation to demolish the structure would be in violation of Section 55. Appeal is dismissed.

Insurance Regulatory and Development Authority (IRDA)

• Minimum Sum Assured under Unit Linked Life Insurance Products

Circular No : 61/IRDA/Actl/March-2008 Dated 12.03.2008: IRDA vide the present circular, notifies that with a view to improving the long term character of the unit linked products, it has been decided to allow the minimum sum assured / death benefit in the range of 125% of the single premium where the policy term is less than 10 years, and 110% of the single premium where the premium is 10 years or more and in cases of Non single premium, it would be five times of the annualized premium.

PIB

• Amendment Proposed in Human Organ Transplantation Act

PIB Dated 11.03.2008: The Union Government has proposed amendments to Human Organ Transplantation Act. This is in view of the Hon'ble High Court of Delhi, in CWP No. 813/2004 vide its order dated 06.09.2004, setting set up a Committee to examine the provisions of the existing Transplantation of Human Organs Act, 1994, and the Transplantation of Human Organs Rules, 1995. Accordingly, the committee has recommended changes in the Act and Rules. These changes are intended to facilitate genuine cases, increase transparency in transplantation procedures and to provide deterrent penalties for violation of the law. Some of the intended major amendments are (1) to empower Union Territories, specially Government of NCT of Delhi to have their own appropriate authority instead of DGHS and / or Additional DG (Hospitals), (2) to make the punishments under the Act harsh and cognizable for the illegal transplantation activities to deter the offenders from committing this crime, (3) to provide for registration of the centres for removal of organs from the cadavers and brain stem dead patients for harvesting of organs instead of registration of centres for transplantations only and to allow swap operations between the related donor and recipients who do not match themselves but match with other similar donors / recipients.

• Clinical Establishments (Registration and Regulation) Bill 2007

PIB Dated 11.03.2008: A Clinical Establishments (Registration and Regulation) Bill 2007 has been introduced in Lok Sabha on 30.08.2007. The Bill seeks to provide for registration and regulation of clinical establishments in the country. A National Council for clinical establishments has been set up to determine the standards for clinical establishments, classify the clinical establishment into different categories, develop minimum standards and their periodic review, compile, maintain and update a national register of clinical establishments, perform any other function determined by the Central Government, from time to time.

SEBI

Press Release

• SEBI Instructs Merchant Bankers not to Demand for Photocopy of PAN card Along With Public Issue Applications

Press Release No: PR No.88/2008 Dated 13.02.2008: SEBI vide the present press release notifies to all registered Merchant Bankers that, the practice of requiring public issue applicants to attach photocopies of PAN cards with the application form has not been mandated by SEBI and that the present SEBI (DIP) Guidelines only require the PAN number to be quoted in the application forms, irrespective of the size of the application. Accordingly, SEBI has instructed Merchant Bankers to ensure that all collection agents/ centers /syndicate/ sub syndicate members etc., engaged in collecting application forms to not refuse to accept applications in the absence of photocopy of PAN card.

Cases

• Felipe Ramirez v. Michael Mukasey, Attorney General

Petitioner, a permanent resident of US, was charged with removability from the country, on the ground that he had been convicted of aggravated assault, by the Immigration and Naturalization Service. The Immigration Judge ordered his removal back into his country of origin. Petitioner appealed against same to BIA contending that the crime for which he was convicted was merely an "offensive type of touching" and would not qualify as crime of violence. The BIA rejected that argument, reasoning that the Massachusetts crime of indecent assault and battery on a person fourteen years or older by its nature presented a substantial risk that the perpetrator would use force to overcome the victim's lack of consent and therefore, affirmed the judgment of the Immigration Judge. Hence, present review petition. Whether the Massachusetts crime of indecent assault on a person who has attained the age of fourteen is a "crime of violence"? Held, any violation of Mass. Gen. Laws, by its nature, presents a substantial risk that force may be used in order to overcome the victim's lack of consent and accomplish the indecent touching." Therefore, conviction under this case was a "crime of violence" that rendered an alien removable. Review petition denied.

• People v. Rolon

Appellant-mother allowed the father of her children to stay at her apartment even though there was a court order against allowing the father to visit or stay at her apartment. The court had also forbid any unmonitored contact between the father and appellant's children. Further, the appellant was also not permitted to act as the monitor. The father of the appellant's children was thereafter charged with first degree murder for torturing and causing death of their youngest child by assault. Along with the father, the appellant was also charged with willfully causing the child to suffer under circumstances likely to result in death and second degree murder. The jury convicted the appellant on all counts mentioned. Hence, present appeal. Whether appellant was an abettor of the offence of murder of the child? Held, A parent has a duty to protect his or her young child and may be criminally culpable on an aider and abettor theory for an assault causing death and on an implied malice theory for murder where the parent fails to take reasonably necessary steps for the child's protection, so long as the parent, with ability to do so, fails to take those steps with the intent of facilitating the perpetrator's assaultive offense. Ruling of Jury affirmed.

News

• Federal Appeals Court Rules Online Community Not Liable for Discriminatory Housing Ads

The US Seventh Circuit Court of Appeals ruled that the online community craigslist is not liable for third-party postings to its website which attempt to discriminate against people seeking housing. The plaintiffs in the case, the Chicago Lawyers' Committee for Civil Rights Under Law, Inc. (CLCCRUL) had alleged that some postings on craigslist violated provisions of the Fair Housing Act banning advertisements that state a preference or limitation, or discriminate against anyone seeking housing. The Seventh Circuit rejected the claim, however, holding that under section 230(c) of the Communications Decency Act of 1996, an online information system such as craigslist, "'must not be treated as the publisher or speaker of any information provided by' someone else." The Seventh Circuit's decision affirmed a lower court ruling. In a memo supporting the CLCCUL's position in the case, the US Department of Housing and Urban Development (HUD) had urged the court to require online communities that host solicitations for housing to screen and filter user submissions in order to ensure Fair Housing Act compliance.

• Norway Government Proposes law Extending Rights of Same-sex Partners

The Norwegian government brought forward a draft law that would grant same-sex couples the same rights as heterosexual couples, replacing a 1993 law which merely granted gay couples the right to enter into civil unions. The proposal would allow gay couples to be married in a church but does not require a minister or religious organization to perform the ceremony. It also gives lesbians the right to assisted pregnancies and allows gay couples to be considered adoptive parents. Denmark became the first country to allow gays to enter into civil unions in 1989 and The Netherlands was the first country to give gay couples the full right of marriage in 2001.

• Guatemala President Vetoes Death Penalty Bill

The Guatemalan President vetoed a bill that would have restored the country's death penalty. The Decree would also have given the President the power to decide whether to grant clemency and commute the sentences of the 34 inmates currently on death row to 50 years in prison, or to order their executions to take place. In vetoing the measure the President said cases in the United States showed that the death penalty did not deter crime, and that strengthening security institutions was the best way to fight crime in Guatemala. The Guatemalan Congress, which passed the bill in February with 140 out of 158 lawmakers supporting it, can override the veto with a two-thirds supermajority vote.

• RIAA facing Racketeering, fraud, Spying Claims Over Anti-piracy Tactics

The Recording Industry Association of America (RIAA) is facing allegations of racketeering, fraud, and illegal spying after an Oregon based woman added claims to an existing lawsuit against the RIAA, several recording companies, and data investigation company MediaSentry for tactics the entities used as part of an RIAA anti-piracy campaign. The woman originally filed a countersuit to an RIAA lawsuit against her for alleged illegal downloading of copyrighted material, but is now seeking to have her case up-graded to a nationwide class action suit to include others whom the RIAA had threatened with litigation. In the suit, the woman alleges that the defendants violated private investigation laws by electronically searching her private information, used illegal methods of seeking payment for data she had allegedly downloaded, pursued litigation even though they should have known that the investigations were illegal, and intentionally caused her emotional distress through slander and the malicious prosecution.

• House Passes FISA Amendment bill Without Telecom Immunity as Veto Looms

A controversial bill to amend the Foreign Intelligence Security Act narrowly passed the US House of Representatives in the face of a White House threat to veto it. The Democrats pushed through new surveillance regulations that would extend government power to eavesdrop on individuals within the United States under judicial oversight but not grant retroactive immunity to telecommunications companies that had previously allowed the government to eavesdrop on their lines as part of its warrantless wiretapping program. Fearing that telecoms would balk at future intelligence requests, the White House has repeatedly called for such a provision, and President Bush said again that he would veto any FISA amendment legislation that did not include that. The approved bill would defer the issue of immunity to the courts to be resolved on a case-by-case basis.