Reading List – November 2014

The LegalCrystal Reading List is a monthly selection of thought-provoking articles/cases on a wide range of legal topics. Past issues are archived on  Twitter & Facebook. Enjoy!

Balwant Singh Vs. Commnr. of Police & Ors. – Supreme Court (Nov-07-2014) – Overruling the Madras HC judgment — Supreme Court allows caste based census – “As we evince from the sequence of events, the High Court in the earlier judgment had issued the direction relating to carrying of census in a particular manner by adding certain facets though the lis was absolutely different. The appellant, the real aggrieved party, was not arrayed as a party-respondent. The issue was squarely raised in the subsequent writ petition where the Census Commissioner was a party and the earlier order was repeated. There can beno shadow of doubt that earlier order is not binding on the appellant as he was not a party to the said lis.”
“It is evincible that the said direction has been issued without any deliberation and being oblivious of the principle that the courts on very rare occasion, in exercise of powers of judicial review, would interfere with a policy decision. Interference with the policy decision and issue of a mandamus to frame a policy in a particular manner are absolutely different. The Act has conferred power on the Central Government to issue Notification regarding the manner in which the census has to be carried out and the Central Government has issued Notifications, and the competent authority has issued directions. It is not within the domain of the Court to legislate. The courts do interpret the law and in such interpretation, certain creative process is involved. The courts have the jurisdiction to declare the law as unconstitutional. That too, where it is called for.
The court may also fill up the gaps in certain spheres applying the doctrine of constitutional silence or abeyance. But, the courts are not to plunge into policy making by adding something to the policy by way of issuing a writ of mandamus. There the judicial restraint is called for remembering what we have stated in the beginning. The courts are required to understand the policy decisions framed by the Executive. If a policy decision or a Notification is arbitrary, it may invite the frown of Article 14 of the Constitution. But when the Notification was not under assail and the same is in consonance with the Act, it is really unfathomable how the High Court could issue directions as to the manner in which a census would be carried out by adding certain
aspects

K Subramani Vs. K Damodara Naidu – Supreme Court (Nov-13-2014) – Dishonour of cheque – Accused acquitted – complainant had no source of income to lend money to the accused – In the present case the complainant and the accused were working as Lecturers in a Government college at the relevant time and the alleged loan of Rs.14 lakhs is claimed to have been paid by cash and it is disputed. Both of them were governed by the Government Servants’ Conduct Rules which prescribes the mode of lending and borrowing. There is nothing on record to show that the prescribed mode was followed. The source claimed by the complainant is savings from his salary and an amount of Rs.5 lakhs derived by him from sale of site No.45 belonging to him. Neither in the complaint nor in the chief-examination of the complainant, there is any averment with regard to the sale price of site No.45. The concerned sale deed was also not produced. Though the complainant was an income-tax assessee he had admitted in his evidence that he had not shown the sale of site No.45 in his income-tax return. On the contrary the complainant has admitted in his evidence that in the year 1997 he had obtained a loan of Rs.1,49,205/- from L.I.C. It is pertinent to note that the alleged loan of Rs.14 lakhs is claimed to have been disbursed in the year 1997 to the accused. Further the complainant did not produce bank statement to substantiate his claim. The trial court took into account the testimony of the wife of the complaint in another criminal case arising under Section 138 of the N.I. Act in which she has stated that the present appellant/accused had not taken any loan from her husband. On a consideration of entire oral and documentary evidence the trial court came to the conclusion that the complainant had no source of income to lend a sum of Rs.14 lakhs to the accused and he failed to prove that there is legally recoverable debt payable by the accused to him. In our view the said conclusion of the trial court has been arrived at on proper appreciation of material evidence on record. The impugned judgment of remand made by the High Court in this case is unsustainable and liable to be set aside. In the result this appeal is allowed and the impugned judgment insofar as the appellant is concerned is set aside and the judgment of acquittal passed by the trial court is restored

State of M.P. Vs. Surendra Singh – Supreme Court (Nov-13-2014) – Undue sympathy by means of imposing inadequate sentence would do more harm to the justice system – “Undue sympathy by means of imposing inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law and the society cannot endure long under serious threats. If the courts do not protect the injured, the injured would then resort to personal vengeance. Therefore, the duty of any court is to award proper sentence having regard to the nature of the offence and the manner in which it was committed.”
“We are of the opinion that the trial court has not committed any illegality in passing the order of conviction and in the appeal preferred by the accused findings of the trial court were affirmed. However, without proper appreciation of the evidence and consideration of gravity of the offence, learned Single Judge of the High Court shown undue sympathy by modifying the conviction to the period already undergone.”
“The legislature has bestowed upon the judiciary this enormous discretion in the sentencing policy, which must be exercised with utmost care and caution. The punishment awarded should be directly proportionate to the nature and the magnitude of the offence. The benchmark of proportionate sentencing can assist the Judges in arriving at a fair and impartial verdict.”
“The court must not only keep in view the rights of the victim of the crime but also the society at large while considering the imposition of appropriate punishment. Meager sentence imposed solely on account of lapse of time without considering the degree of the offence will be counter-productive in the long run and against the interest of the society.”

Antony Cardoza Vs. State of Kerala – Supreme Court (Nov-14-2014) – Former MD Kerala State Handicapped Persons Welfare Corp,was held guilty of corruption to take a jackfruit tree home – “A jack tree of about 40 years of age was cut and kept in the compound of 10 Cents of land owned by the Kerala State Handicapped persons welfare corporation Thiruvananthapuram at Pojoppura. Shri Antony Cardoza, Managing Director of the Corporation got it removed and cut into convenient pieces on 24.06.1996 and took it to his residence at Alapuzha on 25.06.1996 through A Vasudevan Nair. Shri Prabhakaran Nair, L.D. Accountant met the expenses of Rs.690/- by way of labour charge for this purpose which was never claimed reimbursement from the corporation. Thus Shri Antony Cardoza being the servant of the Corporation as M.D. with wrongful intention committed theft of jack tree wood worth about Rs.10,000/- which was cut down and kept in the land of the corporation at Poojappura and Sh. Prakahakaran Nair, L.D. Accountant intentionally facilitated Sh. Antony Cardoza in the commission of the offence punishable under Section 381 and 109 IPC and Section 13(2) read with Section 13(1) (c) of PC Act, 1988.”
As Managing Director of the Corporation, the appellant (Mr. Cardoza) was having dominion over the property in question in his capacity of public servant. The removal of timber from the plot in question to the house of the appellant at a considerable distance and non-accounting thereof in the books of the Corporation are very clinching and relevant circumstances. We therefore uphold the order of conviction as recorded by the Courts below.
However, regard being had to the age and medical condition of the appellant, we deem it appropriate to reduce the substantive sentence on each count to simple imprisonment for one year maintaining the order as regards fine and sentence in default. The appellant is directed to surrender within three weeks to undergo the remaining sentence. The appeal thus stands partly allowed in the aforesaid terms.

K. Srinivas Vs. K. Sunita – Supreme Court (Nov-19-2014) – We find that the Wife filed a false criminal complaint-sufficient to constitute matrimonial cruelty – ‘The Respondent-Wife has admitted in her cross examination that she did not mention all the incidents on which her Complaint is predicated, in her statement under Section 161 of the Cr.P.C. It is not her case that she had actually narrated all these facts to the Investigating Officer, but that he had neglected to mention them. This, it seems to us, is clearly indicative of the fact that the criminal complaint was a contrived afterthought. We affirm the view of the High Court that the criminal complaint was “ill advised
We unequivocally find that the Respondent-Wife had filed a false criminal complaint, and even one such complaint is sufficient to constitute matrimonial cruelty

Jaiminiben Hirenbhai Vyas & Anr. Vs. Hirenbhai Rameshchandra Vyas & Anr. – Supreme Court (Nov-19-2014) – It was incorrect to hold that, as a normal rule-wife is entitled to maintenance from the date of order – It was incorrect to hold that, as a normal rule-wife is entitled to maintenance from the date of order —
“Order for maintenance of wives, children and parents.
(1) If any person having sufficient means neglects or refuses to maintain-
(a) his wife, unable to maintain herself, or
(b) his legitimate or illegitimate minor child, whether married or not,unable to maintain itself, or
(c) his legitimate or illegitimate child (not being a married daughter) who has attained majority, where such child is, by reason of any physical or mental abnormality or injury unable to maintain itself, or
(d) his father or mother, unable to maintain himself or herself, a Magistrate of the first class may, upon proof of such neglect or refusal,order such person to make a monthly allowance for the maintenance of his wife or such child, father or mother, at such monthly rate, as such Magistrate thinks fit, and to pay the same to such person as the Magistrate may from time to time direct:
Provided that the Magistrate may order the father of a minor female child referred to in clause (b) to make such allowance, until she attains her majority, if the Magistrate is satisfied that the husband of such minor female child, if married, is not possessed of sufficient means:
Provided further that the Magistrate may, during the pendency of the proceeding regarding monthly allowance for the maintenance under this sub-section, order such person to make a monthly allowance for the interim maintenance of his wife or such child, father or mother, and the expenses of such proceeding which the Magistrate considers reasonable, and to pay the same to such person as the Magistrate may from time to time direct:
Provided also that an application for the monthly allowance for the interim maintenance and expenses of proceeding under the second proviso shall, as far as possible, be disposed of within sixty days from the date of the service of notice of the application to such person.

R. Rajanna Vs. S.R.Venkataswamy & Ors. – Supreme Court (Nov-20-2014) – The validity of a decree passed on a compromise cannot be challenged in a separate suit – A plain reading of the proviso to Order XXIII Rule 3 lays down that where one party alleges and the other denies adjustment or satisfaction of any suit by a lawful agreement or compromise in writing and signed by the parties, the Court before whom such question is raised, shall decide the same.
In every case where the question arises whether or not there has been a lawful agreement or compromise in writing and signed by the parties, the question whether the agreement or compromise is lawful has to be determined by the Court concerned.
“17. ..Therefore, the only remedy available to a party to a consent decree to avoid such consent decree, is to approach the court which recorded the compromise and made a decree in terms of it, and establish that there was no compromise. In that event, the court which recorded the compromise will itself consider and decide the question as to whether there was a valid compromise or not.

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