Laxmi Dyechem v. State of Gujarat, (2012) 13 SCC 375. Judgment Link: https://main.sci.gov.in/jonew/judis/39772.pdf

Relevant paragraphs:

16. The above line of decisions leaves no room for holding that the two contingencies envisaged under Section 138 of the Act must be interpreted strictly or literally. We find ourselves in respectful agreement with the decision in Magma case (1999) 4 SCC 253 that the expression “amount of money … is insufficient” appearing in Section 138 of the Act is a genus and dishonour for reasons such “as account closed”, “payment stopped”, “referred to the drawer” are only species of that genus. Just as dishonour of a cheque on the ground that the account has been closed is a dishonour falling in the first contingency referred to in Section 138, so also dishonour on the ground that the “signatures do not match” or that the “image is not found”, which too implies that the specimen signatures do not match the signatures on the cheque would constitute a dishonour within the meaning of Section 138 of the Act:

16.1. This Court has in the decisions referred to above taken note of situations and contingencies arising out of deliberate acts of omission or commission on the part of the drawers of the cheques which would inevitably result in the dishonour of the cheque issued by them. For instance, this Court has held that if after issue of the cheque the drawer closes the account it must be presumed that the amount in the account was nil hence insufficient to meet the demand of the cheque. A similar result can be brought about by the drawer changing his specimen signature given to the bank or in the case of a company by the company changing the mandate of those authorised to sign the cheques on its behalf. Such changes or alteration in the mandate may be dishonest or fraudulent and that would inevitably result in dishonour of all cheques signed by the previously authorised signatories. There is in our view no qualitative difference between a situation where the dishonour takes place on account of the substitution by a new set of authorised signatories resulting in the dishonour of the cheques already issued and another situation in which the drawer of the cheque changes his own signatures or closes the account or issues instructions to the bank not to make the payment. So long as the change is brought about with a view to preventing the cheque being honoured the dishonour would become an offence under Section 138 subject to other conditions prescribed being satisfied.

16.2. There may indeed be situations where a mismatch between the signatories on the cheque drawn by the drawer and the specimen available with the bank may result in dishonour of the cheque even when the drawer never intended to invite such a dishonour. We are also conscious of the fact that an authorised signatory may in the ordinary course of business be replaced by a new signatory ending the earlier mandate to the bank. Dishonour on account of such changes that may occur in the course of ordinary business of a company, partnership or an individual may not constitute an offence by itself because such a dishonour in order to qualify for prosecution under Section 138 shall have to be preceded by a statutory notice where the drawer is called upon and has the opportunity to arrange the payment of the amount covered by the cheque. It is only when the drawer despite receipt of such a notice and despite the opportunity to make the payment within the time stipulated under the statute does not pay the amount that the dishonour would be considered a dishonour constituting an offence, hence punishable. Even in such cases, the question whether or not there was a lawfully recoverable debt or liability for discharge whereof the cheque was issued would be a matter that the trial court will examine having regard to the evidence adduced before it and keeping in view the statutory presumption that unless rebutted the cheque is presumed to have been issued for a valid consideration.

Compiled by S. Basavaraj, Advocate, Daksha Legal.

K. Annaji Rao vs N. Krishna Raju Sekhar (2004) 2 AP LJ 63 (SN)

PDF of the Judgment

HELD: In Sridhar M.A. V. Metalloy N.Steel Corpn (2000 (1) SCC 397) the apex Court held that notice should not be deemed to have been served as a matter of course and deemed service is to be accepted in the facts of each case. In the instant case, the case of the respondent‑accused was that he was not served with statutory notice. But, the case of complainant was that he sent the statutory notice to the respondent by registered post and also through certificate of posting and the notice sent by register post was returned unserved with the endorsement ‘addressee left’. No evidence is placed before the Court that the notice sent by certificate of posting was, in fact, served on the respondent. In these circumstances, the respondent‑accused is entitled to benefit of doubt as to whether such service of notice, in fact had been effected on him. Therefore, I am of the opinion that unless the notice issued by the complainant is served on the respondent‑accused as required under Section 138(b) read with clause (c) thereof, the complaint is not maintainable and the accused cannot be convicted for the offence under Section 138 of the Act.

Compiled by S. Basavaraj, Advocate, Daksha Legal.

{“Forum Shopping” is a term for the practice of unscrupulous trying to get their cases heard in the court which they perceive is most likely to provide a favorable judgment.}

The Karnataka High Court, Chief Justice Abhay Shreeniwas Oka and Justice Sachin Shankar Magadum, castigated a litigant who wanted his matter to be heard by a non-Karnataka Judge alleging that the Judge who is seized of the matter is being influenced by a former Chief Justice of India. The Court dismissed the petition with hefty fine of Rs. 1,00,000/-.

The observed that “The allegation is that most of the Judges show reveration to the undisputed intellect of the retired CJI…. We must remind the petitioner that Hon’ble Judges who are holding constitutional posts are human beings and they are bound to have respect for those who are really honourable and those who possess very high intellect. However, the Judges have taken oath under the Constitution, merely because they respect somebody does not mean that the Judges will be guided by the said person when they discharge their judicial and their constitutional duties.”

“The petitioner should not be under impression as far as this court is concerned the matter is over. We have noted the statement made before the single judge. We expect the petitioner to immediately go before the single judge and withdraw the said submissions. If the said submission is not withdrawn the option of initiating suo-motu proceeding always remains open.”

Compiled by S. Basavaraj, Advocate, Daksha Legal.

The Modified Standard Operating Procedure issued on 12 January 2021 for the District Judiciary with effect from 18 January 2021. Normal functioning is restored in all courts except (1) Bengaluru Urban (2) Bengaluru Rural (3) Chikkaballapura, (4) D.K. Mangaluru (5) Mysuru, (6) Shivamogga and (7) Tumakuru

PDF copy below

Click to access dj-mod-sop-12012021.pdf

Sarasamma and others vs State of Karnataka and others. Criminal Petition 77/2018 decided on 10 December 2020.

Judgment Link: http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/356616/1/CRLP77-18-10-12-2020.pdf

Relevant paragraphs: 13. There is no dispute that second respondent has lodged a complaint before the first respondent – police on 5.2.2015. But her evidence clearly reveals that inspite of issuance of notice by her husband Ashok Kumar for restitution of conjugal rights, she was not inclined to lead marital life but went on to lodge the complaint against her husband and his family members. In the said complaint there is an allegation made that her husband Ashok  Kumar and his family members said to have been given physical as well as mental harassment and demanded dowry. But if really there was any sort of harassment extended to her she would have lodged the complaint to  the police even before issuance of notice by her husband  for restitution of conjugal rights. But there is no any sort of physical or mental harassment alleged to be meted out either  from  her husband or his family members. But minutely to see the ingredients of Section 498A of IPC, there shall be some physical as well as mental harassment and it is from the husband as well as family members but there shall be some material allegations with regard to constituting of The complainant is well educated person and has secured three degrees from universities. As there was some incompatible condition between her and her husband, it can be inferred that even if the  allegation made in a complaint and the substance in the FIR, they  are dragged into the criminal proceedings with a view to tarnish their image in the society.

15. When there is sufficient strong evidence then only the investigating officer has to lay the charge sheet against the accused as contemplated under Section 173(2) of Cr.P.C., which requires to be viewed from all angles, but mere because laying the charge sheet, it cannot said that the allegations made in the complaint and so also, the statement of witnesses said to have been recorded, it appears to be a gospel truth.

17. In the instant case, the criminal proceedings initiated by the complainant against her husband Ashok Kumar and his family members who were roped in the alleged crime, a prudent man can infer that the said proceedings initiated by her 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.

Criminal petition allowed. Proceedings quashed.

Complied by S. Basavaraj, Advocate, Daksha Legal.

H.R.Subramanya Shastry and others vs K. Mohan Kumar. Regular First Appeal 666/2013 decided on 6 January 2021.

Judgment Link: http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/358136/1/RFA666-13-06-01-2021.pdf

Relevant paragraphs: 31. In view of the oral agreement set up by the plaintiff in respect of the immovable property, heavy burden is on him to discharge the same when there was an oral contract that too when the defendants have filed a written statement denying the oral agreement.

33. The Hon’ble Supreme Court while considering the provisions of Section 54 of the Transfer of Property Act with regard to specific performance of oral agreement of sale sought in the case of Brij  Mohan and Others –vs-  Sugra Begum  and  Others reported  in (1990) 4 SCC 147 at paragraphs 20 and 22 has held as under: “20. We have given our careful consideration to the arguments advanced by Learned Counsel for the parties and have thoroughly perused the record. We agree with the contention of the Learned counsel for the appellants to the extent that there is no requirement of law that an agreement or contract of sale of immovable property should only be in writing. However, in a case where the plaintiffs come forward to seek a decree for specific performance of contract of sale of immovable property on the basis of an oral agreement alone, heavy burden lies on the plaintiffs to prove that there was consensus ad- idem between the parties for a concluded oral agreement for sale of immovable property. Whether there was such a concluded oral contract or not would be a question of fact to be determined in the facts and circumstances of each individual case. It has to be established by the plaintiffs that vital and fundamental terms for sale of immovable property were concluded between the parties orally and a written agreement if any to be executed subsequently would only be a formal agreement incorporating such terms which had already been settled and concluded in the oral agreement.

35. When the plaintiff has set up an oral agreement and has not mentioned any terms and conditions in the plaint, it is clear that there was no contract between the parties and the decree for specific performance could not have been granted by the trial Court.

37. It is well settled that where the plaintiff comes forward to seek a decree for specific performance of contract of sale of immovable  property  on  the  basis  of  an  oral  agreement  alone, “heavy burden lies on the plaintiff” to prove that there was consensus ad idem between the parties for a concluded oral agreement for sale of immoveable property.   Whether there was such a concluded oral contract or not would be a question of fact to be determined in the facts and circumstances of each individual case. It has to be established by the plaintiff that vital and fundamental terms for sale of immovable property were concluded between the parties and in terms of the provisions of Section 20 of the Specific Relief Act where discretion for grant of specific performance is discretionary, but it has to be exercised in accordance with ‘sound and reasonable judicial principles’. To grant specific performance, however, the Court is not bound to grant such a relief merely because it is lawful to do so. The Court should meticulously consider all facts and circumstances of each case and to see that it is not used as an instrument of oppression to have an unfair advantage not only to the plaintiff but also to the defendant. The relief of specific performance is discretionary but not arbitrary; hence, discretion must be exercised in accordance with sound and reasonably judicial principles. The said principle is not at all considered by the trial Court while passing the impugned judgment and decree which cannot be sustained.

Appeal allowed.

Compiled by S. Basavaraj, Advocate, Daksha Legal.

Paramesha vs State of Karnataka. Criminal Appeal 1959/2019 decided on 11 December 2020. Judgment Link: http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/357617/1/CRLA1959-19-11-12-2020.pdf

Relevant paragraphs: 21. I am conscious of the fact that the DNA test is an impact of the modern scientific and technological revolution. No doubt this new technology can be used as an effective tool in crime detection. To prove the case of the prosecution, the DNA technology as is a latest tool  of modern genetic science. Many courts not only in India, but even in United State have relied upon and accepted it as a admissible evidence. However by close reading of the material, the scientific result is going to be taken, the entire process of procuring the DNA evidence is controlled by human agencies i.e., Investigating Officer and the forensic scientist. There is ample chance of manipulation or tampering of such evidence by the Corrupt Officers or Scientist which needless to say highly prejudice the accused persons. Even preservation method adopted are not properly brought on record. Under such circumstances the prosecution has to establish the corroboration of such evidence and its truth. Nagappa V/s State of Karnataka reported  in  2020(3) KCCR 1704 relied on.

22. Taking into consideration the decision quoted supra and on perusal of the evidence of the Investigating Officer it indicates that he has given reasons to PW.8 and PW.8 without following any information, has drawn the blood of the accused and has sent and even what is the method of preservation has also been not been followed as specifically deposed before the Court. even Scientific Officer has also not been examined before the Court. Under such circumstances the mere production of the report as per Ex.P14 will not help to the case of the prosecution to prove its case beyond all reasonable doubt.

Appeal allowed. Conviction set aside

Compiled by S. Basavaraj, Advocate, Daksha Legal.

Jeanne Pinto vs Deputy Conservator of Forests and another. Regular First Appeal 988/2013 decided on 6 January 2021.

Judgment Link: http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/358139/1/RFA988-13-06-01-2021.pdf

Relevant paragraphs: 35. It is known that the authorities are taking action on small fishes i.e., encroachers of small extent of lands like 1 or 2 acres. They never bother about whales who encroach more than 50 acres of land. Admittedly, in  the present case, appellant has encroached 68 acres 33 guntas of government land. It is high time for the authorities working under the Government to introspect themselves about their duty towards general public and the nation, and discharge their duty to protect the government land.  Otherwise, holding higher posts in the State becomes meaningless.

36. It is well settled that every public servant is a trustee of the Society and all in facets of public administration, every public servant has to exhibit honesty, integrity, sincerity and faithfulness in implementation of the political, social, economic and constitutional policies to integrate the nation, to achieve excellence and efficiency in the public administration. A public servant should exhibit transparency in implementation and of accountability for  due effectuation of constitutional goals. Though the Hon’ble Apex Court in the case of Godavarman (supra) laid down the guidelines for protecting the forest lands, still the State authorities are silent spectators and allowed land grabbers to encroach government lands especially forest lands. Therefore, it is high time for every successive governments to introspect themselves and take a stringent measures to protect the government lands. Otherwise, one day, the forest lands in the State will vanish and ecological imbalance of the nature will ruin the society.  It is duty of the every individual   or  State  to  protect  and  improve  the   environment, safeguard the forests and wildlife in the country as contemplated under Article 48A of the Constitution of India which provides for protection and improvement of environment and safeguarding of forests and wild life. The State shall endeavour to protect and improve the environment and to safeguard the forests and wildlife of the country. As per Article 51A(g) of the Constitution of India, it is the duty of every citizen of India to protect and improve the natural environment including forests, lakes, rivers and wildlife and to have compassion for living creatures. It is well settled that not only human beings, but also the living creatures have fundamental right to live with dignity within the meaning of Article 21 of the Constitution of India. Their rights to live are also recognized by the Constitution of India.

Compiled by S. Basavaraj, Advocate, Daksha Legal.

Jeanne Pinto vs Deputy Conservator of Forests and another. Regular First Appeal 988/2013 decided on 6 January 2021.

Judgment Link: http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/358139/1/RFA988-13-06-01-2021.pdf

Relevant paragraphs: 30. The provisions of Section 33(2)(iii-a) of the Karnataka Forest Act, 1963, prohibits unauthorized occupation of land for any purpose. Admittedly, the present plaintiff who is a trespasser and encroacher, filed suit claiming forest land by way of adverse possession is not maintainable and admittedly, eviction orders already being passed by the concerned forest authorities have reached finality.

31. It is impossible for the State and its instrumentalities including local authorities to keep everyday vigilance/ watch over vast tracts of open land owned by them or of which they are public trustees. No amount of vigil can stop encroachments and unauthorized occupation of public land by unscrupulous elements, who act like vultures to grab such land, raise illegal constructions and, at times, succeed in manipulating the State apparatus for getting their occupation/possession and construction regularized. Where an encroacher, illegal occupant or land grabber of public property raises a plea that he has perfected title by adverse possession, the Court is duty bound to act with greater seriousness, care and circumspection. Any laxity in this regard may result in destruction of right/title of the State of immovable property and give an upper hand to encroachers, unauthorised occupants or land grabbers.

32. The plaintiff is claiming that she is in continuous possession of the lands for more than 100 years. But no documents have been produced to prove her possession and admittedly, the plaintiff is an encroacher of forest lands and already eviction orders have been passed by the authorities under the Karnataka Forest Act, 1963, and the same has reached finality. Therefore, the plaintiff has  failed to establish that she acquired title to the suit schedule properties by way of adverse possession.

33. The dictum of the Hon’ble Supreme Court in the case of T.Anjanappa and others vs. Somalingappa  and  another reported in (2006)7 SCC 570, wherein, at paragraph-20, it is held as under: “20. It is well recognized proposition in law that mere possession however long does not necessarily mean that it is adverse to the true owner. Adverse possession really means the hostile possession which is expressly or impliedly in denial of title of the true owner and in order to constitute adverse possession the possession proved must be adequate in continuity, in publicity and in extent so as to show that it is adverse to the true owner. The classical requirements of acquisition of title by adverse possession are that such possession in denial of the true owner’s title must be peaceful, open and continuous. The  possession must  be open and hostile enough to be capable of being known by the parties interested in the property, though it is not necessary that there should be evidence of the adverse possessor actually informing the real owner of the former’s hostile action.”

34. Though the plaintiff claimed that she is in continuous possession for 40 years, the fact remains that she is an encroacher of forest land, as admitted by P.W.1 in the cross-examination, as stated supra. A person who is a trespasser cannot claim adverse possession against the government land, that too a reserve forest land, in view of the provisions of Section 2 of the Karnataka Forest (Conservation) Act, 1980, and in view of the dictum of the Hon’ble Supreme Court in the case of T.N.Godavarman, supra.

Compiled by S. Basavaraj, Advocate, Daksha Legal.

Dipika Jagatram Sahani vs. Union of India and Others. Writ Petition (Civil) 1039  of 2020 decided on 13 January 2021

Judgment Link:

Click to access 18627_2020_37_1501_25393_Judgement_13-Jan-2021.pdf

Relevant paragraphs: 1. This writ petition has been filed as a Public Interest Litigation under Article 32 of the Constitution of India questioning the closure of the Anganwadi Centres across the country. The petitioner states that through Anganwadi Centres supplementary nutrition to pregnant women, lactating mothers, adolescent girls and children upto the age of 6 years were being provided which fulfilled the State objective of holistic development of children under 6 years and to provide food and nutrition to the beneficiaries. In the writ petition the petitioner impleaded the Union of India, all States and Union Territories and has prayed reliefs.

4. The Act, 2013 by Section 4 creates a statutory right of every pregnant woman and lactating mother free meals during pregnancy and six months after the child birth. Section 5 provides for nutritional support to children, in the case of children in the age group of six months to six years, age appropriate meal, free of charge, through the local Anganwadi so as to meet the nutritional standards. Similarly, Section 6 provides for and management of child malnutrition.

7. After spread of pandemic Corona virus(COVID-19), Anganwadi Centres were closed throughout the country in March, 2020. The distribution of special nutrition and other benefits to be provided for beneficiaries being essential services were permitted to be conducted by Anganwadi staff by resorting to Take Home Ration.

17. We have considered submissions of the learned counsel for the parties and have perused the records. Children are the next generation and therefore unless and until the children and the women have the nutritious food, it will affect the next generation and ultimately the country as a whole. No one can doubt that children are the future of our country and if there is some stinginess in providing them with adequate nutrition, the country as a whole is deprived in future of taking the benefit of their potential.

18. As observed above, it is now statutory obligation of the Centre and the States to provide for nutritional support to the pregnant women and lactating mothers, nutritional support to children and to take steps to identify and provide meals for children who suffer from malnutrition. Government has a constitutional obligation to preserve human life. Good health of its citizens is its primary duty. International covenants also aim at highest attainable standards of physical and mental health. This is in interest of social justice. Inadequate supply of nutritious food to the citizens, more particularly to the children and the women shall affect their health. Therefore, the same shall be in violation of their fundamental right to health/right to live with dignity guaranteed under Article 21 of the Constitution of India.

33. It is the obligation of the State to ensure that pregnant women, lactating mothers and children in the age of 3 to 6 years and children who suffer from malnutrition are provided their dues. The State has to provide an appropriate mechanism for supervision and check, child development officers and other district level officers who are entrusted to monitor the functioning of Anganwadi Centres have to be extra vigilant and take steps so that no beneficiary is denied its dues. All States/Union Territories should evolve an appropriate mechanism for supervision so that dues are received by beneficiaries for whom schemes are in place. It is for the State to secure health to its citizens as its primary duty. No doubt, the Government is rendering this obligation through various schemes, such as, opening of Aanganwadis, providing nutritious food through Aanganwadis, Mid-day Meal Scheme, etc., but in order to make it meaningful, it has to be within the reach of its people, as far as possible, and the Government must supply the nutritious food in the real sense bearing in mind the provisions of National Food Security Act.

35. In view of the above discussions, we allow this writ petition with following directions: –

I) As per guidance note dated 11.11.2020 issued by Government of India, Ministry of Women and Child Development, all States/Union Territories who have not yet opened Anganwadi Centres shall take a decision to open Anganwadi Centres on or before 31.01.2021 situated outside the containment zone.

(II) The decision for not opening Anganwadi Centres in any State/Union Territories or any part of State/Union Territory shall be taken only after the State Disaster Management Authority of the State direct for not opening of Anganwadi Centres in State/particular area of the State situated outside containment zone.

(III) Anganwadi Centres situated in the containment zone shall not be opened till the containment continues.

(IV) All States/Union Territories shall ensure that nutritional standards as provided in Schedule II of National Food Security Act, 2013, reproduced herein above in para 13 is fulfilled by providing nutritional support to pregnant women, lactating mothers, nutritional support to children who suffer from malnutrition.

(V) All the States/Union Territories shall issue necessary orders regarding monitoring and supervision of Anganwadi Centres to ensure that the benefit reaches to the beneficiaries and a Complaint Redressal Mechanism be put in place in each district.

Compiled by Sumana Chamarty, Advocate, Daksha Legal.