1 IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO 71 OF 2018 [Arising out of SLP(C) … Continue reading exparte decree obtained by paper publication – appeal allowed by High court – confirmed by Apex court = neither the report of the bailiff nor the order of the Trial Court indicate that a copy of the summons was affixed in a conspicuous place on the court house and at the house where the defendant was known to have last resided. The High Court held that there was a breach of the provisions of Order V Rule 20 (1) of the CPC. The High Court observed that the order of the Trial Court permitting substituted service was cryptic and that the Court had not recorded its satisfaction that the defendant was keeping out of the way to avoid service or that the summons could not be served in the ordinary manner for any other reason. – “An appeal against an ex parte decree in terms of Section 96(2) of the Code could be filed on the following grounds: (i) the materials on record brought on record in the ex parte proceedings in the suit by the plaintiff would not entail a decree in his favour; and (ii) the suit could not have been posted for ex parte hearing.” A defendant against whom an ex-parte decree is passed has two options: The first is to file an appeal. The second is to file an application under Order IX Rule = The defendant can take recourse to both the proceedings simultaneously. The right of appeal is not taken away by filing an application under Order IX Rule 13. But if the appeal is dismissed as a result of which the ex-parte decree merges with the order of the Appellate Court, a petition under Order IX Rule 13 would not be maintainable. When an application under Order IX Rule 13 is dismissed, the remedy of the defendant is under Order XLIII Rule 1. However, once such an appeal is dismissed, the same contention cannot be raised in a first appeal under Section 96. The three Judge bench decision in Bhanu Kumar Jain has been followed by another bench of three Judges in Rabindra Singh v Financial Commissioner, Cooperation, Punjab2 and by a two Judge bench in Mahesh Yadav v Rajeshwar Singh3 . In the present case, the original defendant chose a remedy of first appeal under Section 96 and was able to establish before the High Court, adequate grounds for setting aside the judgment and decree.
HONBLE DR. JUSTICE B. SIVA SANKARA RAO CIVIL REVISION PETITION No.6852 of 2017 21-12-2017 D.N. Manimanjari Petitioner S. Virupaksheswara Rao … Continue reading divorce petition with custody petition, = Even custody remained with the mother, right of the father to see the children at the intervals cannot be ignored and as per the Halsburys law of England referred supra the father and mother got equal right to shower their love and affection to the children and as held in Rosy Jacob supra the Court dealing with custody and guardianship matters and the disputes between the father and mother in relation to the custody of the children is expected to strike a just and proper balance on the rights, requirements and sentiments.- the order of the lower Court in allowing the petition to the extent of permitting the father of the children to see and interact with the children on every Sunday between 10 AM and 12 Noon before the Secretary, District Legal Services Authority, City Civil Court, Hyderabad, no way requires interference, but for to cooperate even by the mother of the child to implement the order instead of driving the Family Court to implement with legal coercion by invoking the provisions of Sections 25, 26 and 40 to 45 of Guardians and Wards Act.
THE HONBLE SRI JUSTICE SANJAY KUMAR AND THE HONBLE SRI JUSTICE T.AMARNATH GOUD CRIMINAL APPEAL NO.277 OF 2011 22-12-2017 Matta … Continue reading Preceded by a media trial along with the inevitable sensationalism and political hullabaloo, drawing the attention of no less than the Home Minister of the State, conviction of the sole accused of a double murder- Narla Srinivasa Rao (D1) and his wife, Satyavathi (D2), were killed within the precincts of their own residence at 3rd Street, Lalithanagar, Rajahmundry, on 17.09.2009 at about 8.45 PM. Matta Rajesh, the sole accused, was apprehended at the scene of the offence. He was stated to have been harassing Anusha (P.W.2), the daughter of the deceased couple, and allegedly committed the attack, injuring her and resulting in the death of her parents, as she spurned his advances.= Significantly, in his examination under Section 313 CrPC, the accused denied that during the compromise talks, the elders on his behalf assured P.W.2 and D1 that he would be sent out of the State. This claim is contradicted by P.W.15, the BJP leader who worked the compromise, who stated that the father and brother (D.W.6) of the accused told him that they would send the accused to Chennai. The accused further stated that they vacated the portion adjacent to P.W.2s house voluntarily and that they were not made to vacate the same by the police. He contradicted this statement in his chief-examination as D.W.4 by admitting that the family of P.W.2 got them vacated from the portion. Contradictions galore in his testimony therefore weigh heavily against the accused. On the other hand, this Court finds that the prosecution clinchingly established that the accused, consumed by unrequited passion for P.W.2, not only subjected her to harassment, time and again, but also unlawfully entered her house on the fateful night with the intention of doing her fatal bodily harm and upon the intervention of her parents, he mercilessly killed them. Given the admitted fact that the accused was caught at the scene of the offence itself and as P.W.2s evidence as to what actually happened remained unshaken on all essential aspects, the contrary version put forth by the accused is utterly implausible and failed to withstand incisive cross-examination.
SMT JUSTICE T. RAJANI CRIMINAL PETITION Nos.8618 of 2013 22-12-2017 Shri Kersi H Vachha and another.PETITIONERS State of A.P., Represented … Continue reading for quashing, raised by an accused by invoking the power vested in the High Court under Section 482 of the Cr.P.C.:- (i) Step one, whether the material relied upon by the accused is sound, reasonable, and indubitable, i.e., the material is of sterling and impeccable quality? (ii) Step two, whether the material relied upon by the accused, would rule out the assertions contained in the charges levelled against the accused, i.e., the material is sufficient to reject and overrule the factual assertions contained in the complaint, i.e., the material is such, as would persuade a reasonable person to dismiss and condemn the factual basis of the accusations as false. (iii) Step three, whether the material relied upon by the accused, has not been refuted by the prosecution/complainant; and/or the material is such, that it cannot be justifiably refuted by the prosecution/complainant? (iv) Step four, whether proceeding with the trial would result in an abuse of process of the court, and would not serve the ends of justice? If the answer to all the steps is in the affirmative, judicial conscience of the High Court should persuade it to quash such criminal – proceedings, in exercise of power vested in it under Section 482 of the Cr.P.C. Such exercise of power, besides doing justice to the accused, would save precious court time, which would otherwise be wasted in holding such a trial (as well as, proceedings arising therefrom) specially when, it is clear that the same would not conclude in the conviction of the accused.-The Criminal Petitions are allowed and further proceedings in C.C.Nos.124 and 125 of 2013 respectively on the file of Special Judge for Economic Offencescum-Additional Metropolitan Sessions Judge, Hyderabad against the petitioners, who are A6 and A3, are hereby quashed.
SMT JUSTICE T. RAJANI CRLP.No.1405 of 2011 22-12-2017 Axis Bank Limited and others. PETITIONERS State of Andhra Pradesh, Rep. by … Continue reading quash = Sections 120-B, 406, 420 read with Section 34 of the Indian Penal Code, 1860 and 156(3) of the Criminal Procedure Code. = When once the complainant has changed his course of action, from that of a criminal complaint to that of a civil dispute, by giving up the earlier complaint and by making effort to realize the damages, the dispute remains to be only civil dispute thereafter. = when the company is the accused its directors can be roped in only if there is sufficient incriminating evidence against them, coupled with intention, is made. In this case, except against A1 and A2, no allegations against A3 to A6 are made. They are not termed to be the people, who are in-charge of the day-to-day affairs of the petitioner bank. The persons, who signed on the bank guarantee, are the Manager and the Vice President. The manager is not shown in the list of the accused, though the vice president’s signature is found. Whether it is of the second petitioner herein or not is not decipherable = However for the reasons aforementioned, prosecution cannot be sustained against any of the petitioners. It can be further said that the conception of the respondents of the act of the petitioner Bank as a criminal act stands erased, by his act of taking a civil course of action i.e. to realize damages. It implies that he has condoned the criminality, if any, in the act of the accused. He cannot, by the manner in which his grievance is addressed, change his line of action and paint the act of the accused, with a brush of criminality as and when he chooses. In the result, the criminal petition is allowed and the proceedings in Cr.No.57 of 2011 on the file of the Police Station Panjagutta, Hyderabad, against the petitioners, are hereby quashed.
SMT JUSTICE T. RAJANI CRLP.No.1778 of 2013 20-12-2017 D.B.Suresh Babu PETITIONER State, represented by SHO, Kavali Rural P.S., rep. by … Continue reading quashing of criminal case Sections 465, 467, 468, 471 and 420 IPC. = It was held that in order to attract the clause secondly under Section 464 IPC, the alteration of a document has to be for some gain or for some objective of the accused. = The first ground, on which quash is sought for, is that the petitioner is not the person who signed on the disputed letter and the person, who signed on the said letter, is not brought to book for the alleged offence and this petitioner is only Secretary and Correspondent, who handed over the letter to the AICTE, without knowing as to whether the said letter is genuine or forged. The second ground is that the AICTE, in fact, was not mislead by the letter given by the petitioner. There was another letter given by the Andhra Bank, sanctioning Rs.5 crores and the said amount would satisfy the requirements of AICTE for granting approval. = A perusal of the said letter shows that it was not signed by the petitioner and he is not the applicant. Hence, from the said angle also, strength is gained to the petitioners pleas and the prosecution against the petitioner cannot be sustained.- the Apex Court in Parminder Kaur v. State of U.P. , wherein the facts are that the accused is alleged to have altered dates in the certified copy of revenue record. It was held that in order to attract the clause secondly under Section 464 IPC, the alteration of a document has to be for some gain or for some objective of the accused. It was also held that merely changing a document does not make it a false document. The Supreme Court considered that adding of figure 1 in the date in document, in question, cannot be said that the document became false for the simple reason that the appellant/accused had nothing to gain from the same and she was not going to save the bar of limitation.
SMT JUSTICE T. RAJANI MACMA.No.952 of 2013 19-12-2017 J.Padma and others. APPELLANTS D.Satyanarayana and another… RESPONDENT Counsel for Appellants : … Continue reading compensation = The evidence of P.W.3 shows that he was working as a Branch Manager and that the deceased was issued agent licence on 03.03.2008 and he received Rs.40,517/- towards commission for the business done during that period. The counsel for the appellants contends that between March 2008 and November 2008 itself the deceased could get the commission of Rs.40,517/-, which would show that he would, in all probability, earn huge amounts in future. The said fact glares from the evidence of P.W.3 and the same cannot be ignored. = The income of Rs.40,517/- is only for a period of eight months i.e. March 2008 to November 2008. Since the income of the deceased is stated to be only Rs.40,517/-, he would not be liable for tax, as the income would not exceed taxable limits. If Rs.40,517/- is taken for calculation of the income of the deceased, the monthly income would come to Rs.40,517/- x 1/8 = Rs.5,064/- and the annual income would come to Rs.5,064/- x 12 = Rs.60,768/-. If the future hike at 25% is added, the annual income would come to Rs.60,768/- + (Rs.60,768/- x 25% = Rs.15,192/-) = Rs.75,960/-. Since the claimants are four in number, 1/4th has to be deducted towards his personal expenditure as per the decision of the Supreme Court in SARLA VERMA v. DELHI TRANSPORT CORPORATION . Hence, after deducting 1/4th, the income would come to Rs.75,960/- – (Rs.75,960/- x = Rs.18,990/-) = Rs.56,961/-. The age of the deceased, being 41 years, the multiplier relevant as per the decision of the Supreme Court in SARLA VERMAs case (2 supra) is 14. Hence, the loss of future income to the claimants would come to Rs.56,961 x 14 = Rs.7,97,454/-. Apart from the above, following the decision of the Supreme Court in PRANAY SETHIs case (supra) Rs.40,000/- is awarded to the first claimant towards loss of consortium, Rs.15,000/- is awarded towards loss of estate and Rs.15,000/- is awarded towards funeral expenses. Hence, in all, the claimants are entitled to total compensation of Rs.7,97,454/- + Rs.40,000/- + Rs.15,000/- + Rs.15,000/- = Rs.8,67,454/-, which is rounded off to Rs.8,68,000/-.