Vol-1 September, 2006 Part-5

IMPORTANT CASE LAWS

Compiled by

Tamil Nadu State Judicial AcademyChennai – 28

SUPREME COURT CITATIONSSUPREME COURT CITATIONS

TLNJ 2006 (3) 586 (Civil) (DB)Baldev Singh & Other Etc. Vs. Manohar Singh & Another Etc.

Civil Procedure Code 5 of 1908 as amended – Order 6, Rule 17 (Proviso) – Amendment

of Written Statement – plea of limitation can be allowed to be raised as an additional defence –

mere delay of 3 years in filing application for amendment of written statement not a ground for

rejection when no serious prejudice is shown to have been caused to plaintiff so as to take away

any accrued right – in case of amendment of the courts are inclined to be more liberal in allowing

amendment of the written statement than of plaint and question of prejudice is less likely to

operate with same rigour in the former than in the latter case, commencement of trial as used in

proviso to Order 6 Rule 17 in the Code of Civil Procedure must be understood in the limited

sense as meaning the final hearing of the suit, examination of witnesses, filing of documents and

addressing of arguments – inconsistent plea – raising of.

2006 (4) CTC 524 (DB)Anil Rishi Vs. Gurbaksh Singh

Evidence Act, 1872, Sections 101 & 102 – Burden of Proof – Burden of proving fact

rests on person who substantially asserts affirmative issues and not party who denies it – Said

rule is not universal and there may be exceptions to it – Burden of proof is used in three ways:

(a) to indicate the duty of bringing forward evidence in support of a proposition at the beginning

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or later; (b) to make that of establishing a proposition as against all counter evidence; and (c) an

indiscriminate use in which it may mean either or both of the others – The elementary rule in

Section 101 is inflexible – Initial onus is always on plaintiff and if he discharges that onus and

makes out case which entitles him to relief, then onus shifts to Defendant to prove those

circumstances, it any, which would disentitle the Plaintiff to relief.

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HIGH COURT CITATIONSHIGH COURT CITATIONS

2006 (4) CTC 509Kirloskar Computer Services Ltd., Bangalore rep. by its Director, Mr. A.P. Naik Vs. Lakshmi General Finance Ltd., Chennai and another.

Arbitration and Conciliation Act, 1996, Section 4 – Objections regarding jurisdiction and

applicability of new Act should be raised at earliest point of time – Party appeared before

Arbitrator and participated in proceedings without raising objections and with definite intention

that new Act would apply – Parties had also contested application under Section 9 – Party shall

be deemed to have waived plea regarding jurisdiction in not having raised same at earliest point

of time.

2006 (4) CTC 517K. Bhuvanesh Vs. Rakman Bibi and others

Tamil Nadu Buildings (Lease & Rent Control) Act, 1960 [Act 18 of 1960 as amended by

Act 23 of 1973], Section 10 – Denial of title – Plea of – When once tenant admits relationship of

landlord and tenant and also pays the rental arrears, such person is estopped from contending that

there is no landlord and tenant relationship between parties – Rent Controller can prima facie

decide the title of landlord to decide whether denial of title is bona fide or not.

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TLNJ 2006 (3) 667 (Civil)M.N. Abdul Wahab Vs. Salem City Municipality Corporation, rep. by its Commissioner, Corporation Office, Salem.

Civil Procedure Code 1908 as amended – Order 9, Rule 13 – Exparte decree – Petition to

set aside – delay – petition allowed – revision against order – certain amounts of latitude is

permissible in the case of Government or local body which is working through its officers or

servants – revision dismissed.

2006 (4) CTC 444 (FB)A.S. Subramani Vs. The Dy. Registrar of Co-operative Societies, Thindivanam Circle, Thindivanam and another

Tamil Nadu Co-operative Societies Act, 1983 - Master and Servant – Power of Master to

suspend employee from service – Power to suspend servant under ordinary Law of master and

servant without pay could not be implied as term in ordinary contract of service – Such power to

suspend without pay must arise either from express term in contract of statutory provision

governing such contract – Order of suspension can be passed against employee pending enquiry

into his conduct even in the absence of any specific provision to that effect – Employee would be

entitled for remuneration for the period of his interim suspension in absence of specific provision

to suspend employee pending enquiry – Employee in such case would be entitled to his

remuneration for period of his interim suspension if there is no Statute or Rule under which such

payment can be withheld.

Para 9. In the result, we hold that the Division Bench decision in The Special Officer,

Vellakovil Primary Agricultural Co-operative Bank, Vellakovil, Erode District, 2004 (5) CTC

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299, does not lay down the correct law. Accordingly, the Writ Appeal fails and the same is

dismissed. No costs. Consequently, W.A.M.P. No.7784 of 2004 is also dismissed.

2006 (2) M.L.J (CRL.) 433Vinayagam Vs. Aruna and another

Code of Criminal Procedure, 1973 (2 of 1974), Section 125 – Hindu Marriage Act (25 of

1955) – Restitution of conjugal rights – Claim for maintenance by wife and minor daughter

granted – Said order challenged by husband on ground wife not complied with order of

restitution of conjugal rights against her – She not returned to matrimonial home – Admission by

husband on maintenance proceedings that he assaulted wife and daughter and turned them out of

home – Such assault sufficient ground for claiming maintenance – Hence wife not estopped by

decree of restitution of conjugal rights, from claiming maintenance.

“Wife is not estopped from claiming maintenance by earlier decree of restitution of

conjugal rights, if there is an intervening circumstance providing sufficient ground for claiming

maintenance.”

2006 (2) M.L.J (CRL.) 440C.K.P. Hariselvan and others Vs. State rep. by Inspector of Police, Coimbatore City.

Criminal Procedure Code (2 of 1974), Section 227 – Indian Penal Code (45 of 1860),

Sections 384, 30 – Accused petitioners, alleged, forcibly took 2 promissory notes and one cheque

for Rs.5,00,000/- from complainant, attacking him – Discharge petition by accused dismissed –

Both the promissory notes and the cheque allegedly snatched from complainant, invalid on date

of occurrence – Said documents, hence, not ‘valuable securities’ – Besides said documents not

recovered, not available – in the absence of said documents, allegation of offence under section

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384 unbelievable – complainant although allegedly attacked, did not go to Government hospital

for treatment – Medical prescription a concocted document – No ground to raise grave suspicion

against accused – Accused to be discharged.

“When framing charges under Section 227, Criminal Procedure Code the magistrate has

power to sift and weigh the evidence to find out whether a prima facie case against accused

exists. The court shall discharge the accused if there is no sufficient ground for putting the

accused on trial.”

2006 (2) M.L.J (CRL.) 467 Jayanthilal M. Munoth and others Vs. M. Durairajan

Criminal Procedure Code (2 of 1974), Section 482 – Criminal proceedings against

company and its directors – Director resigning long before the Commission of the offence of the

company – Cannot be prosecuted.

Copy Right Act (14 of 1957), Section 63 – Infringement of copy right – Registration of

Copy right, not a condition precedent for invoking criminal prosecution.

“Prosecution for infringement of copy right does not require as a pre-condition

registration of the copy right”.

2006 (2) M.L.J (CRL.) 594Ayyasamy and Another Vs. State rep. by Inspector of Police, Kunnathur, Erode District

Criminal Procedure Code (2 of 1974), Section 193 – Scheduled Castes and Scheduled

Tribes (Prevention of Atrocities) Act (33 of 1989), Sections 2 (1) (d), 14 - Jurisdiction to try the

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offence – Special Court constituted under the Scheduled Castes and Scheduled Tribes

(Prevention of Atrocities ) Act – Cognizance of offence under Section 3 (1) (x) of the Act –

Taking direct cognizance by Special Judge upon final report of Investigating Officer – Without

the case being committed to it by Jurisdiction Magistrate – Entire trial proceedings vitiated –

Conviction not maintainable – Appeal allowed.

“Neither in the Code of Criminal Procedure nor in the Act (33 of 1989) is there any

provision whatsoever, not even by implication, that the specified Court of Session (Special

Court) can take cognizance of the offence under the Act as a Court of original jurisdiction

without the case being committed to it by a Magistrate. Taking direct cognizance by Special

Court on the basis of the final report filed by the Investigating Officer and subsequent trial are

vitiated.”

2006-2-L.W. (Crl.) 700Kadiravan and another Vs. State by Addl. Superintendent of Police, SIT, Kancheepuram.

Criminal Procedure Code. Sections 207, 164 - When it does not fall under the

classification of confession or statement of the accused as contemplated under Section 164 of the

Code of Criminal Procedure and when the said document is not going to be relied upon by the

prosecuting agency, there is no necessity to furnish a copy of the said document to the petitioners

herein – Petitioners have come out with the frivolous petitions before this Court without any

sustainable ground – Crl.O.P. dismissed.

2006 (4) CTC 481K. Ramaiah Vs. R. Sudhakara Naidu

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Criminal Rules of Practice, Rule 339 – Issuance of certified copies of record of criminal

case to parties – Rule 339 stipulates that copies of portion of record of criminal case must be

furnished to parties concerned on payment of proper stamp and authorised fee for copying –

Trial Court cannot refuse to receive copy Application but is bound to follow Rule 339 –

Directions issued.

TLNJ 2006 (3) 558 (Civil)Mamanga Selvi Vs. The Govt. of Tamil Nadu, rep. by its Secretary, Home Dept. Fort St. George, Chennai-9

Custodial death – Petitioner's husband taken to the police station without any reason (or)

any complaint – died in custody – due to beating indiscriminately by police officer – RDO

enquiry under Rule 145 of Indian Police Standing Order – charges proved and enquiry officer

(RDO) recommended prosecution under Rule Section 304-A and 203 IPC against them –

petitioner claimed compensation of a sum of Rs.5 lakhs – state paid Rs.50,000/- as per GO's –

Writ petitioner challenging the order and claim's enhanced amount.

Held: State is bound to compensate the petitioner and other family member of the

deceased having regard to the standard of living of the petitioner and other family members of

the deceased and act of custodial death – amount enhanced to Rs.3 lakhs from Rs.50,000/- - Writ

petition allowed.

2006 (2) M.L.J (CRL.) 482 (DB)Nagaraj Vs. Secretary to Government, Prohibition and Excise Department, Government of Tamil Nadu, Chennai and another

Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Drug Offenders, Forest

Offenders, Goondas, Immoral Traffic Offenders, Slum Grabbers and Video Pirates Act (Act 14

of 1982), Section 3 (1) – Petitioner deserves detained as “Goonda”.

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“When detenu, a hireling, is continuously involved in serious crimes, the nature and

gravity of which are prejudicial to maintenance of public order, the detention order is valid and

sustainable.”

2006-2-L.W. (Crl.) 705Ravichandran Vs. The Sub Inspector of Police, All Women Police Station, Perambalur.

Criminal Trial, Practice/Evidence, DNA Test on the accused as well as on complainant

and her child – See I.P.C., Sections 417, 294(b), Evidence Act, Section 112, Constitution of

India, Article 21.

Held: The accused and the complainant, factually are not married. It is also a fact that

the complainant has given birth to a child. The accused in the eyes of law is not the husband of

the complainant since there is no marriage between them. More so, the accused disowned the

paternity of the child. Therefore, on the complaint of K, the respondent/police filed a case

against the petitioner/accused under Section 417, 294(b), 506(2) IPC.

The principles laid in the ruling (2004 (1) CTC 758) squarely applicable to the facts on

hand. Section 112 of the Indian Evidence Act is not applicable to the facts on hand as there is no

relationship of wife and husband exists between the complainant and the accused. In fact, the

trial Court has taken note of the principles laid down in the rulings referred to above and passed

an order that D N A typing test is must for the case under Section 417 IPC and accordingly

allowed the petition of the prosecution. I do not find any infirmity in the finding of the trial

Court.

2006 (2) M.L.J (CRL.) 436 (DB)

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Arunachalam Vs. Inspector of Police, Kunnam Police Station, Perambalur District.

Indian Penal Code (45 of 1860), Section 302 – Murder – Circumstantial evidence - Proof

by – Guilt of accused must be established without any missing link – The circumstances

established in this case – Not sufficient to hold the accused guilty of murder – Conviction set

aside.

Criminal trial – Appreciation of evidence – Conduct of sniffer dog – Evidenciary value –

Cannot be taken as conclusive evidence against the accused.

“In the case of circumstantial evidence it can be relied on for conviction only if the guilt

of the accused is established without any missing link.”

Para 12. In regard……….

“13. The weakness of the evidence based on tracker dogs has been dealt with in an

article “Police and Security Dogs”. The Possibility of an error on the part of the dog or its

master is the first among them. The possibility of misunderstanding between the dog and its

master is close to its heels. The possibility of a misrepresentation or a wrong inference from the

behavior of the dog could not be ruled out. Last, but not the least, is the fact that from a

scientific point of view, there is little knowledge and much uncertainty as to the precise faculties

which enable police dogs to track and identify criminals. Police dogs engage in these actions by

virtue of instincts and also by the training imparted to them.”

2006 (2) M.L.J (CRL.) 445 (DB)Acit Boran Sam Vs. State rep. by Inspector of Police, Avadi Tank Factory Police Station, Chengai East Dt.

Indian Penal Code (45 of 1860), Section 302 – Murder – Appreciation of evidence –

Accused charged with killing of his superior in office by shooting him with gun – Strong motive

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for the offence established – Evidence of P.W.1 son of the deceased, was inspiring – Variance in

his evidence before the court and his complaint to the police regarding number of gun shots fired

at the victim – Cannot be considered as vital as to affect his evidence – Evidence regarding oral

dying declaration made by deceased to his close relatives found to be convincing – Fact that

P.W.1 did not make any mention in the complaint about the dying declaration made to him

would not vitiate his evidence – Report of the ballistic expert showing that the cartridge

recovered could not have been fired from the weapon produced by the Police – Is not significant,

in view of the overwhelming evidence available in this case – Accordingly the conviction and

sentence imposed on the accused by the Lower Court confirmed.

“From the mere fact that the report of the Ballistic Expert shows that the cartridge

recovered could not have been fired from the weapon produced in the Court, it cannot be

concluded that the whole prosecution case must fall to the ground, when there is no other

overwhelming evidence to prove the guilt of the accused.”

2006 (2) L.W. (CRL.) 692S. Purushothaman and another Vs. Associated Trading Corporation Pvt. Ltd., rep. by its Director S. Kumarappan.

I.P.C., Sections 467, 471, 474, 34, Criminal P.C., Section 482 – Petition to quash

proceedings launched as against the petitioners and others for offences under Sections 467, 471,

472 and 474 read with Section 34 of I.P.C. – Petitioners would submit that as the civil dispute

between the parties relating to the property in question was already decided by the Courts, the

learned Judicial Magistrate should not have entertained the complaint.

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Held: With very vague allegation, the respondent has come out with a private complaint

having failed in his attempt to convince the Police authorities to register a case, based on the

complaint preferred by him after withdrawing the Criminal Original Petition filed before this

Court – Civil Court had thoroughly analysed the history of title and ultimately recorded the

finding that the respondent has no title over the property.

Respondent having failed in all his attempts has now come out with a vexatious

complaint to rope in the petitioners herein, in a case of forgery – No party can be permitted to

wreak vengeance as against the counter party who succeeded before various Civil Courts in the

hierarchy in the civil lis laid by him – Respondent/complainant has unnecessarily dragged the

petitioners and others out of frustration over the outcome of the civil lis brought against him –

Such a criminal proceeding cannot be allowed to work hardship not only as against the

petitioners herein and also against the other accused in C.C. – In the result, the criminal

proceeding pending on the file of the learned Judicial Magistrate No.2, Poonamallee, not only

against the second and third accused, but also as against the other accused in the said case, stands

quashed – Crl.O.Ps. allowed.

2006 (2) M.L.J (CRL.) 512Ramalingam and others Vs. State rep. by Sub Inspector of Police, Madathukulam Police Station

Madras Police Standing Orders, Clause I – Indian Penal Code (45 of 1860) Sections 224,

226 and 506 (ii) – Case and counter case – Accused charged with offences under Sections 224,

226 and 506 (ii), I.P.C – Complaint against the prosecution party – Police charge sheeting the

accused without investigating the compliant filed by them – When there is a case and counter

case, police are bound to investigate both and find out who is the aggressor – Then only it can

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file the charge sheet against the aggressor – As this procedure was not followed, conviction of

the accused set aside.

TLNJ 2006 (3) 596 (Civil)United India Insurance Company Ltd., rep. by its Branch Manger, Karaikudi Vs. N. Meyyappan and another

Motor Vehicles Act 1988 – Section 173 – Motor Accident Claims – Victim proceeding in

an auto – Rash and negligent driving by driver – Auto dashed against a road side tree – fracture

on the left leg below the knee to claimant – compensation of Rs.81,000/- awarded by tribunal –

appeal by Insurance Company – Non wearing of the badge to drive an auto while holding the

driving licence to drive the light motor vehicle will absolve liability of the insurance company

from paying compensation to third parties in a case of rash and negligent driving.

Held: Minor and inconsequential deviations with regard to licensing condition would

fasten the insured to indemnify the insurer as against third parties to pay the compensation –

appeal by insurance company dismissed.

2006 (4) CTC 433 (FB)Cholan Roadways Corporation Ltd., rep. by its Managing Director, Kumbakonam Vs. Ahmed Thambi and others

Motor Vehicles Act, 1988, Section 168 – Power of Motor Accident Claims Tribunal to

fix compensation – Whether compensation could be awarded separately on account of permanent

disability and on account of loss of earning capacity – Compensation to be awarded by Tribunal

under any head should be adequate and reasonable to achieve Statutory goal – Approach of

Tribunal in awarding compensation should be on larger perspective of justice, equity and good

conscience and technical issues should be eschewed – Quantum of damages should be in

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accordance with injury and injury may bring about many consequences like loss of earning

capacity, loss of mental pleasure and may such consequential losses – It is open to Tribunal to

award different sums of damages higher than those claimed under particular head of damages so

long as Tribunal does not exceed total amount claimed – Damages awarded for non-pecuniary

damages for pain, suffering and loss of amenities cannot be reduced even if quantum of

pecuniary damages payable is high – Motor Accidents Claim Tribunal should itemise award

under each of head namely Pecuniary Losses and Non-pecuniary Losses – Under head Non-

pecuniary Losses Tribunal shall consider (a) pain and suffering; (b) loss of amenity; (c) loss of

expectation of life, hardship, mental stress, etc. and (d) loss of prospect of marriage – Under

head Pecuniary Losses, Tribunal shall consider loss of earning capacity and loss of future

earnings as one component apart from medical and other expenses and loss of earning if any

from date of accident till date of trial – When loss of earning capacity is compensated as also

non-pecuniary losses under (a) to (d) permanent disability need not be separately itemized.

2006 (2) M.L.J (CRL.) 481A. Sreekantan Nair Vs. P. Valsarajan

Negotiable Instruments Act (26 of 1881), Section 138 – Accused convicted under, for

dishonour of the cheque – Before punishment is imposed the parties filing a compromise memo,

stating that the dispute has been settled – The comprise is valid in law – Court should record the

same and discharge the accused.

“A compromise entered into between the parties after the accused is convicted under

Section 138 of the Negotiable Instruments Act is valid in law.”

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2006 (2) M.L.J (CRL.) 543 (DB)K. Gopalakrishnan Vs. Karunakaran rep. by the Power of Attorney Holder Dhandapani

Negotiable Instruments Act (26 of 1881), Sections 138, 141, 142 (a) – Power of

Attorney Act (7 of 1882), Section 2 – Criminal Procedure Code (2 of 1974), Sections 2 (d), 190,

200 - Competency of Power of Attorney to prefer a complaint on behalf of the payee or holder

in due course of the cheque – Complaint even if not signed by the Power of Attorney on behalf

of the complainant but signed in his own name is maintainable and not bad in law – Examination

of Power of Attorney Holder upon oath and reduced into writing the substance of such

examination at the time of presentation of the complaint shall be sufficient compliance of the

procedure contemplated under the Code – Court can take cognizance upon sworn statement of

Power of Attorney Holder – It is not required to record the Sworn affidavit of the complainant

also on future date to enable the Court to exercise its discretion under Sections 202 and 203 of

Cr.P.C. – Deed of Power of Attorney or affidavit of the complainant in proof of execution can be

rectified by producing at subsequent stage of the proceedings as and when the validity of the

Power of Attorney is questioned by the accused, the Court can called upon to decide the

genuineness or its validity – Decision rendered in Y. Vijayalakshmi @ Rambha v. Manicka

Narayanan, Proprietor, 7th Channel Communications, rep. by its Power of Attorney Agent,

Thanigaivelan 2005 MLJ (Crl.) 642 is overruled.

“The Power of Attorney holder of the payee or the holder in due course of the cheque,

will be competent to make a complaint. Only when the validity of the Power of Attorney is

questioned, the Court could be called upon to decide the genuineness or its validity at a later

stage of proceedings.”

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2006 (2) L.W. (CRL.) 689 The Tamil Nadu retrenched Census Employees Association and others Vs. K. Thennan

Negotiable Instruments Act (1881), Section 138 / Cheque issued to Advocate,

dishonouring of, whether is a ‘debt’ – Complaint was filed before the Magistrate by the

respondent herein (Advocate) stating that the cheques issued respectively by the petitioners

herein towards Advocate fees and other expenditure due to the respondent, were returned

dishonoured with endorsement “Stop Payment” – Accused filed this petition (Crl.O.P) to quash

the complaint, contending that there was no due payable by the petitioners to the respondent; at

any rate, the arrears of the legal fees cannot be classified as a legally enforceable debt, and that

such a noble relationship cannot be degraded to the category of a debtor and a creditor

relationship.

Held: Rejecting the contention, when the amount payable to the Advocate towards fees

is found due, then it becomes a debt – Such debt is legally enforceable – Though the Advocate in

the legal profession is supposed to do service to the public, he is entitled under law to receive

fees for the service he renders – When such amount is not paid when it becomes due, it becomes

a debt – Crl.O.P. dismissed.

2006-2-L.W.(Crl.) 703Ramaswamy Vs. M/s. Dhanalakshmi Bankers rep. by its Managing Partner Mr. Kandaswamy

Negotiable Instruments Act (1881) Section 138, - Criminal Procedure Code, Section 245

– Revision against the dismissal of the discharge petition filed under Section 245 Cr.P.C. – Plea

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urged that the entire loan amount for which the cheques were issued was discharged but despite

the same, the complainant has not returned the said two cheques and that the cheque has been

materially altered which can be seen from the difference in ink and as such, the complaint is not

maintainable.

Held: The learned Judicial Magistrate recorded finding that the date 29.02.2001

mentioned in the cheque issued by the accused will not in any manner affect the case of the

complainant and that the case has been pending for two years and the examination of witnesses

on the side of the complainant has been completed – Inasmuch as the criminal case C.C.No.253

of 2001 is a summons case and initiated under Section 138 of Negotiable Instruments Act,

against the revision petitioner/accused, it is not open to the revision petitioner/accused to seek

discharge – Revision dismissed.

2006 (2) M.L.J (CRL.) 463H. Thenmozhi Vs. Inspector of Police, P.R.C. Unit, St. Thomas Mount Police Station, Chennai and another

Schedule Castes and Scheduled Tribes (Prevention of Atrocities) Act (33 of 1989) –

Section 3 (1) (x) – Section 23 – Rule – 7 – Investigation by Inspector of Police vitiates the entire

proceedings – Accused rightly acquitted by trial Court.

“The object of SC/ST (Prevention of Atrocities) Act is to minimize offences against

members of SC/ST. But since it is easy to foist a case of this nature, in order to ensure that the

provisions of the Act are not misused, Rule 7 requires that investigation be done by an officer not

below the rank of D.S.P.”

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ROC.No. 44 / 2006 / JA November 2006

To

All the Principal District Judges.

Sir / Madam,

“Greetings from the Tamil Nadu State Judicial Academy”.

The important case laws compiled by Tamil Nadu State Judicial Academy for the

month of October 2006 (Part 6 of Vol. I) is enclosed herewith and the same is sent for circulation

among all the Judicial Officers in the district.

Yours faithfully,

DIRECTOR

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