SUPREME COURT

• CIVIL LAWS

Nicholas V. Menezes Vs. Joseph M. Menezes and Ors. (Decided on 25.03.2009) MANU/SC/0451/2009

First Appeal - Dismissal thereof by learned Single Judge of the High Court without calling for the records and proceedings and without appreciating the pleadings and evidence, oral and documentary, on record

While deciding First Appeal, the High Court must consider the evidence on record, oral and documentary and also the questions of law raised before it and at the same time it was the duty of the court to consider the reasons given by the trial court against which the first appeal was filed and thereafter dispose of the same after passing a speaking and reasoned order in accordance with law. In the instant case the procedure was not adopted by the High Court and accordingly case to be send back for consideration of appeal on merits.

Food Corporation of India Vs. Sukh Deo Prasad (Decided on 24.03.2009) MANU/SC/0444/2009

Consequence of disobedience or breach of injunction - Order 39 Rule 2A of the Code of Civil Procedure

Application under Order 39, Rule 2A of the Code is maintainable only when there is disobedience of any `injunction' granted or other order made under Rule 1 or Rule 2 of Order 39 or breach of any of the terms on which the injunction was granted or the order was made. Application in the instant case on which the relevant order was passed, was neither under Rule 1 nor under Rule 2 of Order 39 CPC and none of the ingredients required for an application under either Rule 1 or Rule 2 of Order 39 existed was found in the application by the bank. The power exercised by a court under order 39 Rule 2A of the Code is punitive in nature, akin to the power to punish for civil contempt under the Contempt of Courts Act, 1971. The person who complains of disobedience or breach has to clearly make out beyond any doubt that there was an injunction or order directing the person against whom the application is made, to do or desist from doing some specific thing or act and that there was disobedience or breach of such order. While considering an application under order 39 Rule 2A, the court cannot construe the order in regard to which disobedience/breach is alleged, as creating an obligation to do something which is not mentioned in the `order', on surmises suspicions and inferences. The power under Rule 2A should be exercised with great caution and responsibility.

Rameshwar Dayal Mangala @ Ramesh Chand Vs. Harish Chand and Anr. (Decided on 18.03.2009) MANU/SC/0391/2009

Second Appeal - Section 100 of the Code of Civil Procedure, 1908 - Disposal thereof without framing any substantial question of law

It is essential for the High Court to formulate a substantial question of law and it is not permissible to reverse the doing so. In the instant case, perusal of the impugned judgment did not show that any substantial question of law being formulated or that the second appeal was heard on the question, if any, so formulated. Matter accordingly was remitted back to the High Court for proceeding in the matter in accordance with law.

• CRIMINAL LAWS

Krishna Ram Vs. State of Rajasthan (Decided on 17.03.2009) MANU/SC/0386/2009

Reversal of order of Acquittal - Interference in Appeal - Section 378 of the Code of Criminal Procedure

If on appraisal of the evidence and on considering relevant attending circumstances it is found that two views are possible one as held by the trial court for acquitting the accused and the other for convicting the accused, in such a situation, the High Court is not to disturb the order of acquittal made by the Trial Court. Further where the material on record leads to a sole and inescapable conclusion of guilt of the accused, the judgment of acquittal will call for interference by the Appellate Court. In the instant case in view of the evidence on record and judgments of the below Courts, view taken by the Trial Court found to be unreasonable and perverse and rightly interfered by the High Court.

Chunduru Siva Ram Krishna and Anr. Vs. Peddi Ravindra Babu and Anr. (Decided on 25.03.2009) MANU/SC/0450/2009

Quashing of Complaint under sections 406 and 420 of the Indian Penal Code, 1860 - Scope and ambit of Section 482 of the Code of Criminal Procedure, 1973

Every breach of trust may not result in a penal offence of criminal breach of trust unless there is evidence of a mental act of fraudulent misappropriation. An act of breach of trust involves a civil wrong in respect of which the person wronged may seek his redress for damages in a civil court but a breach of trust with mens rea gives rise to a criminal prosecution as well. The ingredients in order to constitute a criminal breach of trust are: (i) entrusting a person with property or with any dominion over property, (ii) that person entrusted (a) dishonestly misappropriating or converting that property to his own use; or (b) dishonestly using or disposing of that property or wilfully suffering any other person so to do in violation (i) of any direction of law prescribing the mode in which such trust is to be discharged, (ii) of any legal contract made, touching the discharge of such trust.

The ingredients of an offence of cheating are: (i) there should be fraudulent or dishonest inducement of a person by deceiving him, (ii)(a) the person so deceived should be induced to deliver any property to any person, or to consent that any person shall retain any property; or (b) the person so deceived should be intentionally induced to do or omit to do anything which he would not do or omit if he were not so deceived; and (iii) in cases covered by (ii)(b), the act of omission should be one which causes or is likely to cause damage or harm to the person induced in body, mind, reputation or property.

The distinction between mere breach of contract and the offence of cheating is a fine one, which depends upon the intention of the accused at the time of inducement which may be judged by his subsequent conduct but for this subsequent conduct is not the sole test. Mere breach of contract cannot give rise to criminal prosecution for cheating unless fraudulent or dishonest intention is shown right at the beginning of the transaction, that is the time when the offence is said to have been committed. To hold a person guilty of cheating it is necessary to show that he had fraudulent or dishonest intention at the time of making the promise.

When at an initial stage, a prosecution is asked to be quashed the test to be applied by the court is as to whether the uncontroverted allegations as made in the complaint filed prima facie establish the offence. The tests laid down in the case of State of Haryana and Ors. v. Bhajan Lal MANU/SC/0115/1992 is required to be applied very carefully and minutely while disposing relief of quashing. The tests are:

(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.

(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.

(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.

(4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.

(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.

(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.

(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.

In the instant case, it was held that no useful purpose would be served by allowing the prosecution against the accused persons i.e. the Appellants. Proceedings accordingly quashed against the relevant accused persons.

HIGH COURT

• TENANCY

CALCUTTA HIGH COURT

Binode Bihari Das Vs. Kashi Nath Mukherjee and Anr (Decided on 13.02.2009) MANU/WB/0019/2009

Eviction- Suit for eviction filed before Trial court by the respondent/plaintiff was allowed on the ground of bonafide need- Appellate court dismissed the appeal by the Appellant- Question before the court was whether suit accommodation is bonafidely required by the respondent ?

Concurrent findings of fact arrived at by the learned Courts below on materials on- record is not vulnerable in Second Appeal under Section 100 of the Civil Procedure Code. The defendant never disputed the existence of relationship of landlord and tenant between the parties though the defendant claimed that the plaintiffs were not the inducting landlord. The ascertainment as to who inducted the defendant is immaterial in such a suit. What is material is to ascertain as to whether the relationship of landlord and tenant existed between the parties as on the date of institution of the suit or not. Here both the Courts found that relationship of landlord and tenant exists between the parties and the plaintiffs have become the owner of the suit premises by virtue of the said deed of gift which was duly acted upon.

• SERVICE

DELHI HIGH COURT

Birendra Mahto Vs.UOI (Decided on 27.02.2009) MANU/DE/0237/2009

Service - Petitioner appointed as constable -Information required to be disclosed by the petitioner in Column 12(b) of the Attestation Form has not been disclosed regarding pendency of criminal case- Show cause notice issued and service were terminated by the respondent in exercise of powers conferred on the appointing authority under Rule 25(2) of the CISF Rules, 2001.

Petitioner did not dispute that the information furnished by him in column 12 of the Attestation Form was incorrect inasmuch as he was found to have been prosecuted in a criminal case and was facing trial therein at the relevant time when he filled up the Attestation Form. Expressing regret for the lapse and seeking to justify suppression of material information of his being prosecuted in the criminal case by pleading that the petitioner was labouring under the misimpression that no offence had actually been committed by him, in view of compounding of the offences, could not have accounted for dilution of seriousness of the lapse to the extent of offsetting the consequential effect in the nature of the impugned order.

• BANKING

BOMBAY HIGH COURT

The Bicholim Urban Co-operative Bank Ltd Vs. Shri AVCGHCS (Decided on 02.03.2009) MANU/MH/0135/2009

Advertisement issued for various posts and the appointment was in the year 1993- Suit for damages filed by the plaintiff/appellant on the ground that illegal appointments was done ignoring merit list- Defendants filed an application under O7 R 11 application for dismissal of the plaint and was allowed- Question before the court is whether or not suit if barred by the limitation?

It is required to be noted that even the said second report was received by the society on 03-07- 2001, yet the suit is not filed within three years from the receipt of the said report. Simply because the society decided to hold a meeting on a particular day and might have decided to take decision subsequently to accept the report and to file a suit, it cannot be said that the limitation starts from that day. As pointed out earlier, even the so-called fraud came to the knowledge of the society in the year 1996 and even a criminal case was filed in the year 1996, the aspect about so-called fraud was within the knowledge of the plaintiff's society in the year 1996, and yet the suit has been filed in the year 2004.

DELHI HIGH COURT

Delhi Automobiles Ltd. and Anr Vs. Mohan Exports India Ltd (Decided on 04.03.2009) MANU/DE/0231/2009

Cheque bounce- Compliant of cheque bounce filed before Trial Court on the basis of the second notice- Application for dismissal of the complaint filed by the respondent on the ground that compliant is time barred was allowed- On Appeal, Appellate court allowed the appeal of the complainant- Question that arises before the court is whether it is time barred?

It will not be appropriate at this stage prima facie to say that the said fax constituted a notice to furnish a cause of action in favour of the petitioners to file a complaint under Section 138 of the Negotiable Instruments Act or that in the present case the notice which is the basis of the filing of the complaint is a second notice. All these questions can be gone into by the learned Metropolitan Magistrate after the evidence of the parties are recorded where the petitioners will have a right to cross-examination and to seek proper explanation.

• COMPANY

BOMBAY HIGH COURT

Shree Shridharkrupa Builders and Realtors P. Ltd. Vs. Mr. Mahen J. Dholam (Decided on 16.03.2009) MANU/MH/0163/2009

Company- Question before the court is Whether a shareholder of a company has locusstandi to maintain a petition for reliefs under Section 163 of the Companies Act if he is also a Director of the company and Whether the Company Law Board has the power and jurisdiction in a petition for reliefs under Sections 163, 621 or 629 of the Companies Act to advise the Registrar of Companies?

Section 163 does not confer jurisdiction upon the Company Law Board to advice the Registrar of Companies to initiate prosecution for a contravention of Section 163. Nor do Sections 621 and 629 confer such power on the Company Law Board.

• CONTRACT

CALCUTTA HIGH COURT

Sushil Kumar Agarwal Vs. Kalidas Sadhu (Decided on 18.02.2009) MANU/WB/0005/2009

Specific performance - Suit for specific performance of contract filed before Trial court by the appellant/plaintiff was dismissed- Question that arises for determination in this appeal is whether a suit for specific performance of contract for enforcement of construction of a building is maintainable at the instance of a developer in view of the provisions contained in Section 14(3)(c) of the Specific Relief Act, 1963.

Court found that the contract sought to be enforced in the suit out of which the present appeal arises is barred as it failed to comply with the conditions mentioned in Sub-section (3)(c) of Section 14 the Act.