Legal Blog: October 2010

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Sunday, October 31, 2010

Bride Burning falls under 'Rarest of Rare' cases : Supreme Court

This snippet may be read in continuation of our previous post on the Law relating to Dowry Death. The Supreme Court, in a recent Judgment has stated that Bride Burning falls under the category of 'rarest of rare' cases and deserves the death penalty.

The Bench comprising Justice Markandey Katju and Justice Gyan Sudha Mishra, opened their judgment with the words "The hallmark of a healthy society is the respect it shows to women. Indian society has become a sick society. This is evident from the large number of cases coming up in this Court (and also in almost all courts in the country) in which young women are being killed by their husbands or by their in-laws by pouring kerosene on them and setting them on fire or by hanging/strangulating them. What is the level of civilsation of a society in which a large number of women are treated in this horrendous and barbaric manner? What has our society become - this is illustrated by this case."

The Bench went on to hold;

"We have carefully perused the impugned judgment and order of the High Court and the judgment of the trial court and other evidence on record. We see no reason to disagree with the judgment and order of the High Court convicting the appellants. In fact, it was really a case under Section 302 IPC and death sentence should have been imposed in such a case, but since no charge under Section 302 IPC was levelled, we cannot do so, otherwise, such cases of bride burning, in our opinion, fall in the category of rarest of rare cases, and hence deserve death sentence. Although bride burning or bride hanging cases have become common in our country, in our opinion, the expression "rarest of rare" as referred to in Bachan Singh Vs. State of Punjab, AIR 1980 SC 898 does not mean that the act is uncommon, it means that the act is brutal and barbaric. Bride killing is certainly barbaric.

Crimes against women are not ordinary crimes committed in a fit of anger or for property. They are social crimes. They disrupt the entire social fabric. Hence, they call for harsh punishment. Unfortunately, what is happening in our society is that out of lust for money people are often demanding dowry and after extracting as much money as they can they kill the wife and marry again and then again they commit the murder of their wife for the same purpose. This is because of total commercialization of our society, and lust for money which induces people to commit murder of the wife. The time has come when we have to stamp out this evil from our society, with an iron hand."

Find the Entire Judgment here.

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The Legal Blog.in

Saturday, October 30, 2010

Jurisdiction and Ouster Clauses in Agreements : The Law

The Delhi High Court recently examined the law relating to ouster clauses in Agreements vis-a-vis jurisdiction of a Court to try and entertain a matter. Very often, one finds agreements which contain specific ouster clauses, limiting the jurisdiction of courts to try a matter. Per contra, agreements may contain clauses which actually confer jurisdiction on courts, which otherwise do not have jurisdiction to entertain a matter.

The law on this aspect is fairly well settled.The Supreme Courts in its judgment in ABC Laminart Pvt. Ltd. v. A.P. Agencies, Salem has upheld the validity of contracts ousting or conferring jurisdiction on courts. The findings may be summarised as under;

(a) Ousting jurisdiction of a court, which otherwise would have jurisdiction, by a contract, is void.

(b) Conferring jurisdiction on a court, which otherwise does not have any jurisdiction, by a contract, is void.

(c) Where 2 or more courts have jurisdiction to try a matter, then limiting the jurisdiction to a particular court is valid. However, such contract should be clear, unambigous and specific. Ouster clauses may use the words 'alone', 'exclusively' and 'only' and the same pose no difficulty in interpretation. Even in the absence of such words, the ouster may be inferred from the terms of the contract.

Following the above Judgment, the Delhi High Court in Khosla Machines Pvt. Ltd. v. Deepak Verma, while dealing with two interim applications has held;

17. Having considered the submissions of the counsel for the parties, it appears to this Court that the defendant will succeed in these applications. The question of jurisdiction has to be decided on the facts and circumstances of every case. In A.B.C. Laminart Pvt. Ltd. v. A.P. Agencies, Salem, Supreme Court in para 21 explained the position concerning the ouster clause as under (SCC @ p.175-76): "From the foregoing decisions it can be reasonably deduced that where such an ouster clause occurs, it is pertinent to see whether there is ouster of jurisdiction of other Courts. When the clause is clear, unambiguous and specific accepted notions of contract would bind the parties and unless the absence of ad idem can be shown, the other courts should avoid exercising jurisdiction. As regards construction of the ouster clause when words like 'alone', 'only, 'exclusive' and the like have been used there may be no difficulty. Even without such words in appropriate cases the maxim 'expressio unius est exclusio alterius' - expression of one is the exclusion of another - may be applied. What is an appropriate case shall depend on the facts of the case. In such a case mention of one thing may imply exclusion of another. When certain jurisdiction is specified in a contract an intention to exclude all others from its operation may in such cases be inferred. It has therefore to be properly construed."

18. In the instant case, the agreement to sell as well as the Non Compete Agreement both dated 19th November 2003 contain an identical clause which reads as under:-

"That both the parties irrevocably and unconditionally consent to submit to the exclusive jurisdiction of the courts in Chandigarh."

19. What is significant is that an undertaking was given by the defendant not to design or develop a similar prototype/machine as was "an essential and fundamental condition of this agreement" and formed the basis of the present suit. Mr. Lal tried to impress upon the court that even irrespective of such an agreement to sell containing a negative covenant, the plaintiff would still be able to sue the defendant for violation of copyright. In a given case such a contention could be accepted. However, in the present case, the plaintiff has itself placed these documents on record and has come to the court claiming violation of the agreements by the defendant. The plaintiff cannot be heard to say that the court should now ignore the said two documents in determining whether the court has jurisdiction to try the suit.

20. The next contention of Mr. Lal is that a part of the cause of action arose within the jurisdiction of this court and therefore in terms of Section 20(c) CPC this Court has jurisdiction to entertain the suit. It requires to be noticed that the only averment in this regard is that the defendant has received a purchase order from Fena Pvt. Ltd., which has its office in Delhi. It is not in dispute that the allegedly offending machine made in Mohali to be delivered at Surajpur (UP). Mr. Lal states that this Court should not go by the place from where the machine is dispatched or even the place where it is delivered, it should only go by the address of the company which purchased the machine from the defendant.

21. There are two difficulties in the way of the plaintiff. The first is that by accepting the above plea of the plaintiff, this Court would be turning a blind eye to the two documents which have been included by the plaintiff in the list of documents being relied upon by it. Both these documents contain clauses, which have been inserted obviously at the instance of the plaintiff itself, conferring on the exclusive jurisdiction on the courts in Chandigarh. In light of the law explained by the Supreme Court in A.B.C. Laminart Pvt. Ltd. v. A.P. Agencies, Salem, the wording of the ouster clause is unambiguous particularly when it uses words like "exclusive". In those circumstances, no option is left to the court to still assert its jurisdiction. Once an ouster clause is clear that it is only the court in Chandigarh that will have the jurisdiction, it is not possible to ignore such a clause and still say that since a part of the cause of action has arisen within the territorial jurisdiction of this court, this suit should be entertained. This is what distinguishes the judgments of this Court in LG Corporation v. Intermarket Electroplasters (P) Ltd., Pfizer Products, Inc. v. Rajesh Chopra and of the Madras High Court in Base International Holdings N.V. Hockenrode 6 v. Pallava Hotels Corporation Ltd. in their application to the present case. Those cases seem to find jurisdiction on the basis that either a sale or a threatened sale was to take place within the jurisdiction of this Court. None of those decisions were rendered in cases where there was an ouster clause which conferred exclusive jurisdiction on some other court.

22. As regards the plea of estoppel, this Court is unable to appreciate how the plaintiff can seek to take advantage of the defendants averments in its written statement. The submission of Mr. Lal was that unless the defendant admitted the genuineness of the two documents which contained the ouster clause, the ouster clause cannot be used to estop the plaintiff from approaching the court. In the first place, this Court does not have to look into the written statement to see whether the suit is maintainable. At this stage this Court has to determine whether on the basis of the averments in the plaint, this Court has jurisdiction or not. The plaint has to be examined along with the documents for that purpose. It is incumbent on the plaintiff to satisfy the court that it has jurisdiction to entertain the suit. In the considered view of this Court, the question of estoppel does not arise. It is the plaintiff that maintains that its case on the basis of the two documents which are part of its reliance. As long as these documents remain on the record, it is not possible for this Court to ignore them. Therefore, it is not possible to accept the plea of the plaintiff that this Court has territorial jurisdiction to entertain the suit.

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The Legal Blog.in

Week 1 The Legal Blog.in : 'The Precursor'

Dear Readers,

We at the Legal Blog.in have spent considerable time and energy to put the site together and provide contents based articles for our readers. It gives us immense pleasure to publish our first ever newsletter.

Like most other sites, we propose to send a weekly (or maybe fortnightly) newsletter to our readers, keeping them abreast with all the legal news, action, articles and latest judgment from the Supreme Court and High Courts around the country. We soon propose to divulge into relevant International topics, news and articles.

The main aim of the site is to provide research based content to lawyers, student and the layman but we shall soon be expanding our horizons by venturing into other areas such as Legal Jobs, Premium Content and Query solving et al. 

The pre-Diwali week created numerous headlines, be it the Supreme Court in cancelling Ramalinga Raju's Bail or the Elevation / Transfer of Judges in the Delhi High Court.

Thursday, October 28, 2010

Contribute to the Legal Blog.in

The Legal Blog.in is looking for authors, contributors and bloggers to contribute to the site.


All interested persons may contact us at the legalblog.in@gmail.com with the Subject: Author.

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The Legal Blog.in

Tuesday, October 26, 2010

Justice Gian Parkash Mittal appointed as Delhi HC Additional Judge

The Ministry of Law and Justice has announced the appointment of Sh. Gian Parkash Mittal as an Additional Judge of the Delhi High Court. Sh. G.P. Mittal is the presently serving as the  District Judge I & Sessions Judge of Delhi. Before taking over the charge of District & Sessions Judge he served as the Law Secretary, Govt. of NCT of Delhi and Additional District & Sessions Judge, Delhi.

Meanwhile, the much talked about judicial transfers have finally been confirmed and the transferred judges shall assume their respective offices with immediate effect.


The eleven Judges transferred are:

Justice Vijay Manohar Sahai, transferred from Allahabad HC to Gujarat HC
Justice Poonam Srivastava, Allahabad HC to Jharkhand HC
Justice Toom Meena Kumari, Andhra Pradesh HC to Patna HC
Justice Dantuluri Srinivasa Ranganatha Varma, Andhra Pradesh HC to Allahabad HC
Justice Ashutosh Mohunta, Punjab and Haryana HC to Andhra Pradesh HC
Justice Vinod Kumar Sharma, Punjab and Haryana HC to Madras HC
Justice Harjinder Singh Bhalla, Punjab and Haryana HC to Orissa HC
Justice Sri Niwas Aggarwal, Delhi HC to Madhya Pradesh HC
Justice Aruna Suresh, Delhi HC to Orissa HC
Justice Muttaci Jeyapaul, Madras HC to Punjab and Haryana HC and 
Justice Bhabani Prasad Ray, Orissa HC to Kerala HC. 

Exemption from filing Original Documents in Suits: Delhi High Court

Justice Rajiv Sahai Endlaw in a recent unreported Judgment has dealt with the power of the Court with relation to permitting a party to a civil suit to file only photocopy of the document and exempt such party from placing the original document on the file of the court and merely to give inspection thereof to the opposite party at the time of admission/denial of documents and at the time of tendering the document into evidence and to put the Exhibit mark again on photocopy on the file of the court.

While discussing the advancement of science and technology, the Court held;

7. At the outset, I must state that, to hold that there is no power whatsoever in the court to exempt placing of the original document on the file of the court on the condition of the party offering the same for inspection in the court as and when required, is not found by me to be in consonance with the principles of convenience and expediency and with the times. The courts, increase in number whereof has not kept pace with the increase in population and development of trade and commerce which also leads to increase in litigation, are today over loaded and facing a crunch not only of manpower but also of shere physical space and infrastructure. The court buildings/premises/infrastructure which were built and designed for a certain volume of litigation, are falling far short of the number of legal cases transacted therein. The persons handling the court files and/or the papers filed in the court work under tremendous time constraints and pressure and cannot be expected to take care or safety and preservation of the papers in the court file, as one would of his own. The papers filed, for being retained on the court file are punched not once or twice but several times. Often the papers are found to come loose from the court file and/or on repeated handling with torn corners. The documents which may be required to be filed in a lis may not merely be magazines or invoices as in this case but may be title documents to the immovable properties of the parties or of financial investments of the parties or as to educational qualifications/experience of parties and which may be irreplaceable qua the parties and loss/damages whereto may depreciate the value of the property/financial investments of the parties. The question posed above has to be adjudicated keeping all the said factors in mind and not merely the documents in the present case.

8. The courts today have undertaken an e-project, the vision whereof is a paper less court. Of course, the same is still a far cry. However, that being the vision, the law must evolve in consonance therewith and not to create impediments/obstacles in the same. In many countries, the filing of lis/claims in the court is through electronic media only without the advocate or the litigant physically visiting the court or filing a single paper therein. All this is not possible if insistence is made on filing of the original documents. It is possible today to scan the document and e-file it with the court and to simultaneously serve it on the opposing parties.

9. I am, therefore, of the view that if the provisions of the codified law so permit, it would be expedient to, where the court finds that the original document is such, the loss or damage whereto could cause irreparable loss or inconvenience to a litigant, to allow such original to remain in the safety of its owner/possessor and to allow filing of photocopy thereof only, with a condition on the party to produce the original for inspection as and when required.


10. Yet another reason which prevailed on me for even before considering the provisions of law find the aforesaid to be more reasonable, was the advancement in science and technology which today allows the photocopy of the original to be as good/clear as the original, if not clearer. A number of times, it is difficult to distinguish between the original and the photocopy. Gone are the times when copies of the original were made manually either in hand or in type with inherent possibility of differences between the two. In those times, seeing the copy could not be the same as seeing the original. One could not have the impact of seeing the original by seeing such a copy. However, the process of photocopying has changed all that. The ocular inspection of a photocopy of a document is as good as of the original. The laws which were drafted in those times have to be interpreted in consonance with the present times and technology.

While discussing the relevant provisions of law, the Court observed that;

20. The next questions which arise are, as to whether under Order 13 Rule 1 of the CPC the original document has to be placed on the file of the court or to be merely given inspection of for admission/denial of documents; whether the Evidence Act while providing for proof of documents by primary evidence requires filing/placing of the original document on the record of the court.


21. There can be no manner of doubt that the Evidence Act providing in Section 64 thereof of proof of documents by primary evidence only means proof of the original document. Even though Section 62 defining the primary evidence as meaning the document itself, does not state original document but since Section 63 while defining secondary evidence includes "copies from the original" and "copies made from and compared with the original" it necessarily follows that only the original is primary evidence.

22. However, most importantly, Section 62 is as under:
62. Primary Evidence - Primary evidence means the document itself produced for the inspection of the court.
Thus even at the stage of proof, the requirement is only for production of the original for inspection of the court and not of filing of the original in the court. It cannot be argued that production for inspection of the court has to be necessarily by placing it on the file of the court. It can also be by producing it as and when directed by the court for inspection thereof.

23. When at the stage of proof of documents, the requirement under Section 62 of the Evidence Act is only of production of original for inspection of the court, Order 13 Rule 1 of the CPC requiring production of originals has to be necessarily meant as production of original for inspection of the court and not as filing of the original. Significantly, Order 13 Rule 1 also uses both expressions "produce" in connection with original and "filed" in connection with the copies. The different expression used, together with definition/meaning of produce cited by Counsel for plaintiffs also lend me to hold that the original documents are only intended to be produced i.e. to be given inspection of while the copies are to be filed.

24. I, therefore, find that the scheme of the aforesaid legislative provisions also permits production of originals for inspection only and filing of copies only.

25. However, Order 13 Rule 4 CPC and the practise directions in the trial of suits issued by this court, also provide for making of endorsement on documents admitted in evidence. The document which is admitted in evidence is the primary document i.e. the original. Is the endorsement of exhibit mark to be made on original only which would again mean placing it on court record? In my view No. These provisions are procedural. When the substantive law permits only production for inspection of original, once that has been done, the endorsement/exhibit mark can be put on copy on court record also.

26. The aforesaid should not be understood as laying down that in all cases the filing of photocopies is enough. If the document is doubtful or for any other reason required by the court to remain in original on the file of the court, the court can always direct so and a party cannot insist on filing of copy only. There may be other instances where filing of the original is necessary, as in the case of documents like Will, Agreements which may be terminated/cancelled by destruction. The courts can in such cases insist upon the original being filed on the record.

27. I, therefore, answer the question posed by me in opening paragraph in the affirmative and in law there is no impediment to granting the application.

28. The next question is whether in the facts and circumstances of the present case the application should be granted. Though the arguments of the Counsel for the defendant of it being possible to file magazines/article in original in as much as several copies of the same can be available is attractive but impractical. In the normal course, a litigant may not retain a large number of copies of the magazines/articles and may retain a single or a few copies only for future use. It is very difficult for a litigant to long after the date of publication approach the publisher for other copies of the newspapers, magazines and articles. The same is the position of the invoices. The various laws i.e. the Income Tax Laws and the Companies Act provide for the duration for which the records are to be preserved. The parties may beyond the said terms retain a few/sample records for further use. It thus cannot be said that same invoices can be filed in each court.

Click here for the entire Judgment

Godhra Trial : Stay Vacated by Supreme Court

Source : NDTV

Paving the way for the trial court to pronounce its verdict in the 2002 Gujarat riots cases, the Supreme Court today vacated its stay order.
     
The Court, however, said the trial court shall not pronounce its judgement in the case relating to the killing of former Congress MP Ehsan Jaffrey in which Chief Minister Narendra Modi has been questioned by the Special Investigation Team (SIT).
    
A three-judge special bench of Justices D K Jain, P Sathasivam and Aftab Alam passed the order while vacating its May 6 stay on pronouncement of judgement.The bench said that the court can proceed with the trial in Jaffrey case as the SIT is still in the process of examining certain witnesses.
        
The Court had on May 6 stayed the pronouncement of judgement in the Gujarat riots cases following allegations of botched up investigation and demand for re-constitution of SIT that had been subsequently effected pursuant to the bench's earlier direction.

Meanwhile, amicus curiae Prashant Bhushan recused himself from the case following an application moved by the Gujarat government.

The application sought Bhushan's recusal alleging that he was biased and had strong views against the Chief Minister and the BJP government in the state.

The Court accepted Bhushan's plea for recusal and recorded the same in an order.

The bench also issued notice to the Gujarat government on the plea for transfer of the judge dealing with the Gulberg society case relating to the killing of Ehsan Jaffrey.

It was alleged that the judge was biased, favouring the accused and humiliating the witnesses including Zakia Jaffrey, wife of the slain former MP.
The Court had passed the stay order after allegations were made about lapses in investigations being conducted by SIT into the 2002 Gujarat communal riots cases.

The Court had then appointed A K Malhotra, a former DIG of CBI, to verify allegations of lapses in investigations by SIT in the case.
     
The Court had passed the direction while dealing with the plea of NGO Citizen for Justice and Peace of Teesta Setalvad and some rights activists who sought a stay of the trial and sought reconstitution of SIT for its alleged bias.
     
The Court has directed Malhotra to verify the allegations after examining the reply filed by SIT on the issue and submit his report.
    
The 10 cases being monitored by SIT on the earlier directions of the Court are--Gulberg Society, Ode, Sardarpura, Narodao Gaon, Naroda Patya, Baranpura, Machipith, Tarsali, Pandarwada and Raghavapura.

Raju's Bail Cancelled : Trial Expedited : Supreme Court

Source: Times of India



The Supreme Court today cancelled the bails granted to Satyam Computer founder B Ramalinga Raju, his brother B Rama Raju and four others by the Andhra Pradesh High Court in the Rs 14,000-crore accounting fraud.

Hearing the CBI plea, a Supreme Court bench comprising Justices Dalveer Bhandari and Deepak Verma today cancelled the bails and asked all six persons to surrender by November 10.

Observing that the case involved the biggest scam in the history of India, which had affected large number of shareholders, banks and financial institutions, the bench said that the High Court order of grating bail cannot be sustained.

The SC also directed the special court in Hyderabad, which is conducting the trial in the Satyam case, to conclude its proceedings by July 2011.

Earlier this month, the bench had issued a notice to Raju, directing him to file his reply on CBI's plea.

In its petition for cancellation of the bail granted to Raju by the Andhra Pradesh High Court, CBI had said that Satyam's founder and former chief "misused" the bail by meeting one of the witnesses in the case and tried to "influence" him.

CBI had filed the chargsheet running into over 10,000 pages, naming more than 250 witnesses. Such a huge volume was criticised by the court in the last hearing on October 19.

Besides the two Raju brothers, the High Court had granted bail to the four employees of the IT firm, namely Srinivas, Ramakrishna, Venkatapathi and Srisailam.


CBI had approached the apex court on September 13 and said that Raju might influence the witnesses majority of whom were his former employees.



The High Court on August 18 had allowed Raju's bail on the ground that all other accused in the case, including his brother Rama Raju, former Satyam CFO V Srinivas and three other former IT company employees G Ramakrishna, Venkatapathi Raju and Srisailam were granted bail by it.

This article can be found at http://timesofindia.indiatimes.com/india/Satyam-case-SC-cancels-Ramalinga-Rajus-bail/articleshow/6814979.cms

Find the copy of the Order here.

Sunday, October 24, 2010

Power of Attorney Evidence : The Law

Many a times Power of Attorneys enter the witness box on behalf of their Principals and depose facts, either based on their personal knowledge or knowledge derived from records. Questions have often been raised about the evidentiary value of depositions by such Attorneys, more so in cases where they do not possess personal knowledge of the facts of a case.
The Supreme Court in Janki Vashdeo Bhojwani v. Indusind Bank Ltd. 2005 (2) SCC 217, held as follows:
"Order III, Rules 1 and 2 CPC, empowers the holder of power of attorney to "act" on behalf of the principal. In our view the word "acts" employed in Order III, Rules 1 and 2 CPC, confines only in respect of "acts" done by the power of attorney holder in exercise of power granted by the instrument. The term "acts" would not include deposing in place and instead of the principal. In other words, if the power of attorney holder has rendered some "acts" in pursuance of power of attorney, he may depose for the principal in respect of such acts, but he cannot depose for the principal for the acts done by the principal and not by him. Similarly, he cannot depose for the principal in respect of the matter which only the principal can have a personal knowledge and in respect of which the principal is entitled to be cross-examined."
In the case of Shambhu Dutt Shastri v. State of Rajasthan 1986 2 WLN 713 (Raj) it was held that a general power of attorney holder can appear, plead and act on behalf of the party but he cannot become a witness on behalf of the party. He can only appear in his own capacity. No one can delegate the power to appear in witness box on behalf of himself. To appear in a witness box is altogether a different act. A general power of attorney holder cannot be allowed to appear as a witness on behalf of the plaintiff in the capacity of the plaintiff.
The aforesaid judgment was quoted with the approval in the case of Ram Prasad v. Hari Narain AIR 1998 Raj 185. It was held that the word "acts" used in Rule 2 of Order III of the CPC does not include the act of power of attorney holder to appear as a witness on behalf of a party. Power of attorney holder of a party can appear only as a witness in his personal capacity and whatever knowledge he has about the case he can state on oath but be cannot appear as a witness on behalf of the party in the capacity of that party. If the plaintiff is unable to appear in the court, a commission for recording his evidence may be issued under the relevant provisions of the CPC.
In a recent decision, Man Kaur (dead) by LRS. v. Hartar Singh Sangha, the Supreme Court has summarised the above position, as follows;

12. We may now summarise for convenience, the position as to who should give evidence in regard to matters involving personal knowledge:
(a) An attorney holder who has signed the plaint and instituted the suit, but has no personal knowledge of the transaction can only give formal evidence about the validity of the power of attorney and the filing of the suit.
(b) If the attorney holder has done any act or handled any transactions, in pursuance of the power of attorney granted by the principal, he may be examined as a witness to prove those acts or transactions. If the attorney holder alone has personal knowledge of such acts and transactions and not the principal, the attorney holder shall be examined, if those acts and transactions have to be proved.
(c) The attorney holder cannot depose or give evidence in place of his principal for the acts done by the principal or transactions or dealings of the principal, of which principal alone has personal knowledge.
(d) Where the principal at no point of time had personally handled or dealt with or participated in the transaction and has no personal knowledge of the transaction, and where the entire transaction has been handled by an attorney holder, necessarily the attorney holder alone can give evidence in regard to the transaction. This frequently happens in case of principals carrying on business through authorized managers/attorney holders or persons residing abroad managing their affairs through their attorney holders.
(e) Where the entire transaction has been conducted through a particular attorney holder, the principal has to examine that attorney holder to prove the transaction, and not a different or subsequent attorney holder.
(f) Where different attorney holders had dealt with the matter at different stages of the transaction, if evidence has to be led as to what transpired at those different stages, all the attorney holders will have to be examined.
(g) Where the law requires or contemplated the plaintiff or other party to a proceeding, to establish or prove something with reference to his 'state of mind' or 'conduct', normally the person concerned alone has to give evidence and not an attorney holder. A landlord who seeks eviction of his tenant, on the ground of his 'bona fide' need and a purchaser seeking specific performance who has to show his 'readiness and willingness' fall under this category. There is however a recognized exception to this requirement. Where all the affairs of a party are completely managed, transacted and looked after by an attorney (who may happen to be a close family member), it may be possible to accept the evidence of such attorney even with reference to bona fides or 'readiness and willingness'. Examples of such attorney holders are a husband/wife exclusively managing the affairs of his/her spouse, a son/daughter exclusively managing the affairs of an old and infirm parent, a father/mother exclusively managing the affairs of a son/daughter living abroad.


Read the entire Judgment here.

Institution of Suit and Sole Proprietorship Concern : The Law

This snippet deals with the law relating to the institution of suits and proceedings by a Sole Proprietorship concern. A Proprietor ordinarily means a person who carries on trade or business in a name other than his. The law on this aspect is fairly well settled. No suit can be instituted by a Sole Proprietorship concern in its own name unless there are specific averments stating that the Proprietorship sues through its Proprietor. 

It has been recognized in a number of decisions that a Proprietorship concern, unlike a company or a partnership, is not a legal entity and therefore any proceedings initiated by it would be a nullity. Some of the important decisions on this aspect are compiled in the foregoing para.

It was held by the Delhi High Court in P.C. Advertising v. Municipal Corporation of Delhi 73 (1998) DLT 259 / 1998 (III) AD Delhi 133 (Click here for the Judgment) that;

"Suit filed in the name of proprietorship firm which was neither a registered company nor joint family nor a partnership firm, in the absence of any prayer to seek amendment to allow sole proprietor to sue in his own name was not maintainable"

In Miraj Advertising Corporation v. Vishaka Engineering 115 (2004) DLT 471 (Click here for Judgment) it was held that;

"A proprietorship firm has no legal entity like a registered firm.   A suit cannot be instituted in the name of an unregistered proprietorship firm and the said suit is to be instituted in the name of the proprietor."   

The above view was fortified in Svapn Construction v. IDPL Employees CGHS 127 (2006) DLT 60 (Click here for the Judgment)


Saturday, October 23, 2010

Principle of Waiver under Arbitration Act, 1996



"A party who knows that a requirement under the arbitration agreement has not been complied with and still proceeds with the arbitration without raising an objection, as soon as possible, waives their right to object."

The Supreme Court has re-iterated the age old concept of waiver and applied the same in its Judgment, BSNL v. Motorola India Pvt. Ltd. 2008 (7) SCC 431. (Click here for entire Judgment)

This concept has previously been upheld by the Supreme Court in Narayan Prasad Lohia v. Nikunj Kumar Lohia AIR 2002 SC 1139 (Click here for entire Judgment).

On similar lines, the Supreme Court in J.G. Engineers Pvt. Ltd. v. Calcutta Improvement Trust AIR 2002 SC 766 (Click here for entire Judgment) held, inter alia, that Respondents not having taken the objection with regard to the non arbitrability of the claim before the arbitrator, or any objections that the claims were 'excepted matters', and having contested the claims on merits, is estopped from raising such an objection after having suffered the award.

While relying on the above stated Judgments the Delhi High Court recently in Satish Kumar v. Union of India & Ors. 152 (2008) DLT 475 (Click here for the entire Judgment) held that a party not having taken a plea/objection as to a certain fact before the tribunal is estopped from raising the same at a later stage. 

The Delhi High Court, recently held in S.N. Malhotra & Sons v. Airport Authority of India 149 (2008) DLT 757 (DB) (Click here for the entire Judgment) that;

27. Applying the test laid down in the aforesaid case and the statutory provisions referred to hereinabove, and also keeping in mind the fact that the respondent at no stage of the arbitral proceedings chose to raise a challenge to the assumption of jurisdiction by the arbitral tribunal on a matter falling in the category of "excepted matters" under Clause 25 of the agreement between the parties, we are of the considered view that the respondent is now debarred from raising such a plea for the first time under Section 34 of the Act. A conjoint reading of Section 16(2) and Section 4 shows that an objection to the arbitrator having exceeded his jurisdiction falls in the category of case covered by Clause (b) of Section 4. The respondent knew that in respect of the non-compliance of any requirement under the arbitration agreement, it was free to raise challenge. It chose not to do so. As laid down in Narayan Prasad Lohia (supra), if a party chooses not to so object there will be deemed waiver under Section 4. Lohia's case pertained to a statutory prohibition. In the present case, it is the requirement of a clause in an agreement which has not been adhered to. The respondent was all along aware of this non-compliance and participated in the proceedings without demur. The award in respect of the same is not to its liking. The challenge now sought to be raised by the respondent flies in the face of its tacit approval of the matter being dealt with by the arbitrator. Allowing the respondent to resile from his position at this stage without its laying any foundation for the challenge when it was free to raise the same, would be inequitable to say the least.

Friday, October 22, 2010

Live In Relationships & Alimony : Supreme Court View


A Supreme Court Bench has said, “An unmarried woman will not be able to claim maintenance by merely spending weekends together or a one night stand would not make it a domestic relationship. Not all live-in relationships will amount to a relationship in the nature of marriage to get the benefit of the Act of 2005 (The Protection of Women from Domestic Violence Act, 2005) . To get such benefit the conditions mentioned must be satisfied, and this has to be proved by evidence. If a man has a ‘keep’ whom he maintains financially and uses mainly for sexual purpose and / or as a servant it would not, in our opinion, be a relationship in the nature of marriage”.

The Supreme Court stated that a ‘relationship in the nature of marriage’ is akin to a common law marriage. For the purposes of claiming benefits under the domestic violence law, the claimant must satisfy four requirements i.e. (a) the couple must hold themselves out to society as being akin to spouses; (b) they must be of legal age to marry; (c) they must be otherwise qualified to enter into a legal marriage, including being unmarried and (d) they must have voluntarily cohabited and held themselves out to the world as being akin to spouses for a significant period of time.

The entire text of the Judgment is available here.

Accused has no right to file Affidavit of Evidence in Cheque Bounce Cases

Justice Tarun Chatterjee
Supreme Court of India
The Supreme Court in M/s Mandvi Co-op Bank Ltd. v Nimesh B. Thakore ruled that in cheque bouncing cases, the right to give evidence on affidavit, as provided to the complainant under section 145 of the Negotiable Instruments Act, is not available to the accused for expeditious decision in such mounting cases which are chocking the administration of criminal justice system in the country.

A bench comprising justices Tarun Chatterjee and Aftab Alam said it is not difficult to see that sections 143 to 147 were inserted in the Act by the Negotiable Instruments (Amendment and Miscellaneous Provisions) Act, 2002 to do away with all the stages and processes in a regular criminal trial that normally cause inordinate delay in its conclusion and to make the trial procedure as expeditious as possible without in any way compromising on the right of the accused for a fair trial.

16. It may be noted that the provisions of Sections 143, 144, 145 and 147 expressly depart from and override the provisions of the Code of Criminal Procedure, the main body of adjective law for criminal trials. The provisions of Section 146 similarly depart from the principles of the Indian Evidence Act. Section 143 makes it possible for the complaints under Section 138 of the Act to be tried in the summary manner, except, of course, for the relatively small number of cases where the Magistrate feels that the nature of the case is such that a sentence of imprisonment for a term exceeding one year may have to be passed or that it is, for any other reason, undesirable to try the case summarily. It is, however, significant that the procedure of summary trials is adopted under Section 143 subject to the qualification "as far as possible", thus, leaving sufficient flexibility so as not to affect the quick flow of the trial process. Even while following the procedure of summary trials, the non-obstante clause and the expression "as far as possible" used in Section 143 coupled with the non-obstante clause in Section 145 allows for the evidence of the complainant to be given on affidavit, that is, in the absence of the accused. This would have been impermissible (even in a summary trial under the Code of Criminal Procedure) in view of Sections 251 and 254 and especially Section 273 of the Code. The accused, however, is fully protected, as under Sub-section (2) of Section 145 he has the absolute and unqualified right to have the complainant and any or all of his witnesses summoned for cross-examination. Sub-section (3) of Section 143 mandates that the trial would proceed, as far as practicable, on a day-to-day basis and Sub-section (4) of the section requires the Magistrate to make the endeavour to conclude the trial within six months from the date of filing of the complaint. Section 144 makes the process of service of summons simpler and cuts down the long time ordinarily consumed in service of summons in a regular civil suit or a criminal trial. Section 145 with its non-obstante clause, as noted above, makes it possible for the evidence of the complainant to be taken in the absence of the accused. But the affidavit of the complainant (or any of his witnesses) may be read in evidence "subject to all just exceptions". In other words, anything inadmissible in evidence, e.g., irrelevant facts or hearsay matters would not be taken in as evidence, even though stated on affidavit. Section 146, making a major departure from the principles of the Evidence Act provides that the bank's slip or memo with the official mark showing that the cheque was dishonoured would by itself give rise to the presumption of dishonour of the cheque, unless and until that fact was disproved. Section 147 makes the offences punishable under the Act, compoundable.

17. It is not difficult to see that Sections 142 to 147 lay down a kind of a special code for the trial of offences under Chapter XVII of the Negotiable Instruments Act and Sections 143 to 147 were inserted in the Act by the Negotiable Instruments (Amendment and Miscellaneous Provisions) Act, 2002 to do away with all the stages and processes in a regular criminal trial that normally cause inordinate delay in its conclusion and to make the trial procedure as expeditious as possible without in any way compromising on the right of the accused for a fair trial.

18. Here we must take notice of the fact that cases under Section 138 of the Act have been coming in such great multitude that even the introduction of such radical measures to make the trial procedure simplified and speedy has been of little help and cases of dishonoured cheques continue to pile up giving rise to an unbearable burden on the criminal court system. The Law Commission in its report number 213 sent to the Union Minister for Law and Justice on November 24, 2008 advocated the setting up of Fast Track Magisterial courts for dealing with the huge pendency of dishonoured cheque cases. In paragraph 1.5 of the report it was stated as follows:
1.5. Over 38 lac cheque bouncing cases are pending in various courts in the country. There are 7,66,974 cases pending in criminal courts in Delhi at the Magisterial level as on 1st June, 2008. Out of this huge workload, a substantial portion is of cases under Section 138 of the Negotiable Instruments Act which alone count for 5,14,433 cases (cheque bouncing). According to Gujarat High Court sources, there are approximately two lac cheque bouncing cases all over t he State, with the majority of them (84,000 cases) in Ahmedabad, followed by Surat, Vadodara and Rajkot. 73,000 cases were filed under Section 138 of the Negotiable Instruments Act (cheque bouncing) on a single day by a private telecom company before a Bangalore court, informed the Chief Justice of India, K. G. Balakrishnan, urging the Government to appoint more judges to deal with 1.8 crore pending cases in the country. The number of complaints which are pending in Bombay courts On the date of the report, there were 5,91,818 cases pending in sub-ordinate courts of State of Maharashtra, 1,57,191 cases pending in the sub-ordinate courts of State of Karnataka, 1,10,311 cases pending in the sub-ordinate courts of State of Kerala and 5,14,433 cases in the sub-ordinate courts of the State of Delhi under Section 138 of the Negotiable Instrument Act. seriously cast shadow on the credibility of our trade, commerce and business. Immediate steps have to be taken by all concerned to ensure restoration of the credibility of trade, commerce and business.
19. The situation arising from the mounting arrears is so grave that in the `Vision Statement' presented by the Union Minister for Law and Justice to the Chief Justice of India in course of the National Consultation for strengthening the Judiciary towards reducing pendency and delays held on October 24, 2009, cases of dishonoured cheques were cited among one of the major bottlenecks in the criminal justice system. In paragraph 2 under the heading `the Action Plan' it was stated as follows:
2. Identification of Bottlenecks: Clearing the System
1. Studies have shown that cases under certain statutes and area of law are choking dockets of magisterial and specialised courts, and the same need to be identified.
2. Bottlenecks shall be identified as follows:
a) Matrimonial cases.
b) Cases under Section 498A of the Indian Penal Code, 1860.
c) Cases under Section 143 of the Negotiable Instrument Act, 1881.
d) to (i) xxxxxxxxxx
20. Once it is realized that Sections 143 to 147 were designed especially to lay down a much simplified procedure for the trial of dishonoured cheque cases with the sole object that the trial of those cases should follow a course even swifter than a summary trial and once it is seen that even the special procedure failed to effectively and expeditiously handle the vast multitude of cases coming to the court, the claim of the accused that on being summoned under Section 145(2), the complainant or any of his witnesses whose evidence is given on affidavit must be made to depose in examination-in- chief all over again plainly appears to be a demand for meaningless duplication, apparently aimed at delaying the trial.

21. Nevertheless, the submissions made on behalf of the parties must be taken note of and properly dealt with. Mr Ranjit Kumar, learned Senior Advocate, appearing for the appellant in appeal arising from SLP (Crl.) No. 4760/2006 pointed out that Sub-section (2) of Section 145 uses both the words, "may" (with reference to the court) and "shall" (with reference to the prosecution or the accused). It was, therefore, beyond doubt that in the event an application is made by the accused, the court would be obliged to summon the person giving evidence on affidavit in terms of Section 145(1) without having any discretion in the matter. There can be no disagreement with this part of the submission but the question is when the person who has given his evidence on affidavit appears in court, whether it is also open to the accused to insist that before cross-examining him as to the facts stated in the affidavit he must first depose in examination-in-chief and be required to verbally state what is already said in the affidavit. Mr. Ranjit Kumar referred to Section 137 of the Indian Evidence Act, that defines "examination-in- chief", "cross-examination" and "re-examination" and on that basis sought to argue that the word "examine" occurring in Section 145(2) must be construed to mean all the three kinds of examination of a witness. This, according to him, coupled with the use of the word "shall" with reference to the application made by the accused made it quite clear that a person giving his evidence on affidavit, on being summoned under Section 145(2) at the instance of the accused must begin his deposition with examination-in-chief, before he may be cross-examined by the accused. In this regard he submitted that Section 145 did not override the Evidence Act or the Negotiable Instruments Act or any other law except the Code of Criminal Procedure. He further submitted that the plain language of Section 145(2) was clear and unambiguous and was capable of only one meaning and, therefore, the provision must be understood in its literal sense and the High Court was in error in resorting to purposive interpretation of the provision. In support of the submission he relied upon decisions of this Court in Dental Council of India v. Hari Prakash and Ors. MANU/SC/0509/2001 : (2001) 8 SCC 61 and Nathi Devi v. Radha Devi MANU/SC/1071/2004 : (2005) 2 SCC 271. Mr. Siddharth Bhatnagar, learned Counsel for the appellant in the appeal arising from SLP (Crl.) No. 1106/2007 also joined Mr. Ranjit Kumar in the submission based on literal interpretation. He also submitted that ordinarily the rule of literal construction should not be departed from, particularly when the words of the statute are clear and unambiguous. He relied upon the decision in Raghunath Rai Bareja v. Punjab National Bank MANU/SC/5456/2006 : (2007) 2 SCC 230.

22. We are completely unable to appreciate the submission. The plea for a literal interpretation of Section 145(2) is based on the unfounded assumption that the language of the section clearly says that the person giving his evidence on affidavit, on being summoned at the instance of the accused must start his deposition in court with examination-in-chief. We find nothing in Section 145(2) to suggest that. We may also make it clear that Section 137 of the Evidence Act does not define "examine" to mean and include the three kinds of examination of a witness; it simply defines "examination-in- chief", "cross-examination" and "re-examination". What Section 145(2) of the Act says is simply this. The court may, at its discretion, call a person giving his evidence on affidavit and examine him as to the facts contained therein. But if an application is made either by the prosecution or by the accused the court must call the person giving his evidence on affidavit, again to be examined as to the facts contained therein. What would be the extent and nature of examination in each case is a different matter and that has to be reasonably construed in light of the provision of Section 145(1) and having regard to the object and purpose of the entire scheme of Sections 143 to 146. The scheme of Sections 143 to 146 does not in any way affect the judge's powers under Section 165 of the Evidence Act. As a matter of fact, Section 145(2) expressly provides that the court may, if it thinks fit, summon and examine any person giving evidence on affidavit. But how would the person giving evidence on affidavit be examined, on being summoned to appear before the court on the application made by the prosecution or the accused? The affidavit of the person so summoned that is already on the record is obviously in the nature of examination-in-chief. Hence, on being summoned on the application made by the accused the deponent of the affidavit (the complainant or any of his witnesses) can only be subjected to cross-examination as to the facts stated in the affidavit. In so far as the prosecution is concerned the occasion to summon any of its witnesses who has given his evidence on affidavit may arise in two ways. The prosecution may summon a person who has given his evidence on affidavit and has been cross-examined for "re-examination". The prosecution may also have to summon a witness whose evidence is given on affidavit in case objection is raised by the defence regarding the validity and/or sufficiency of proof of some document(s) submitted along with the affidavit. In that event the witness may be summoned to appear before the court to cure the defect and to have the document(s) properly proved by following the correct legal mode. This appears to us as the simple answer to the above question and the correct legal position. Any other meaning given to Sub-section (2) of Section 145, as suggested by Mr. Ranjit Kumar would make the provision of Section 145(1) nugatory and would completely defeat the very scheme of trial as designed under Sections 143 to 147.

23. Mr. Ranjit Kumar next submitted that Section 145(2) was identical to Section 296(2) of the Code of Criminal Procedure and this Court, in its decision in State of Punjab v. Naib Din MANU/SC/0597/2001 : (2001) 8 SCC 578 dealing with Section 296(2) of the Code made the following observation:
8. ...If any party to a lis wishes to examine the deponent of the affidavit it is open to him to make an application before the court that he requires the deponent to be examined or cross- examined in court. This is provided in Sub-section (2) of Section 296 of the Code. When any such application is made it is the duty of the court to call such person to the court for the purpose of being examined.
24. Mr. Siddharth Bhatnagar representing the appellant in the appeal arising from SLP (Crl.) No. 1106/2007 also joined Mr. Ranjit Kumar in the submission based on Section 296(2) of Code. Mr. Bhatnagar submitted that since Section 145(2) is identical to Section 296(2) of the Code, it should be interpreted in light of the legislative history of Section 296(2) and he tried to take us into the details of the legislative history of Section 296 of the Code.

25. In our view the submission is wholly without merit. Neither section 296(2) of the Code nor the decision in Naib Din has any relevance or application to the trial concerning a dishonoured cheque under sections 143 to 146 of the Act. The decision in Naib Din was rendered in a totally different context and the issue before the court was not, whether on being summoned on the application made by the accused, the person giving evidence on affidavit must begin his deposition with examination-in-chief. The appellants are reading into the passage from the decision in Naib Din something that was not said by the court. Moreover, the crucial difference between section 296(2) of the Code and section 145(2) of the Act is that the former deals with the evidence of a formal nature whereas under the latter provision, all evidences including substantive evidence may be given on affidavit. Section 296 is part of the elaborate procedure of a regular trial under the Code while the whole object of section 145(2) of the Act is to design a much simpler and swifter trial procedure departing from the elaborate and time consuming trial procedure of the Code. Hence, notwithstanding the apparent verbal similarity between section 145(2) of the Act and section 296(2) of the Code, it would be completely wrong to interpret the true scope and meaning of the one in the light of the other. Neither the legislative history of 296(2) nor any decision on that section can persuade us to hold that under section 145(2) of the Act, on being summoned at the instance of the accused the complainant or any of his witnesses should be first made to depose in examination-in-chief before cross-examination. 

26. Mr. Ranjit Kumar next submitted that in giving evidence on affidavit, the deponent (the complainant or any of his witnesses) can introduce hearsay or irrelevant facts in evidence to which the accused could have objected if the deposition was made in court as examination-in-chief. Hence, the accused must have the right to call the complainant (or his witness giving evidence on affidavit) into the witness box for examination-in-chief so as to get the inadmissible parts in the affidavit excluded from his evidence. Once again the submission is devoid of merit. It is noted above that the evidence given on affidavit by the complainant is "subject to all just exceptions". This simply means that the evidence given on affidavit must be admissible and it must not include inadmissible materials such as facts not relevant to the issue or any hearsay statements. In case the complainant's affidavits contain statements that are not admissible in evidence it is always open to the accused to point those out to the court and the court would then surely deal with the objections in accordance with law. 

27. Mr. Ranjit Kumar lastly submitted that when the complainant gives his evidence on affidavit, then the documents produced along with the affidavit(s) are not proved automatically and unless the accused admits those documents under section 294 of the Code of Criminal Procedure the documents must be proved by oral testimony. We find no substance in this submission either and we see no reason why the affidavits should not also contain the formal proof of the enclosed documents. In case, however, the accused raises any objections with regard to the validity or sufficiency of proof of the documents submitted along with the affidavit and if the objections are sustained by the court it is always open to the prosecution to have the concerned witness summoned and get the lacuna in the proof of the documents corrected. 

28. Mr. Ranjit Kumar also made a feeble attempt to contend that the provisions of sections 143 to 147 inserted in the Act with effect from February 6, 2003 would operate prospectively and would not apply to cases that were pending on that date. The High Court has considered the issue in great detail and has rightly taken the view that the provisions of sections 143 to 147 do not take away any substantive rights of the accused. Those provisions are not substantive but procedural in nature and would, therefore, undoubtedly, apply to the cases that were pending on the date the provisions came into force. We are fully in agreement and in order to buttress the view taken by the High Court we will only refer to a decision of this court. 

29. In Gurbachan Singh vs. Satpal Singh and Ors., 1990 (1) SCC 445, the court was called upon to consider whether section 113A of the Evidence Act that created a presumption as to abetment of a suicide by a married woman would operate retrospectively or prospectively. The court held: 
"37. The provisions of the said section do not create any new offence and as such it does not create any substantial right but it is merely a matter of procedure of evidence and as such it is retrospective and will be applicable to this case. It is profitable to refer in this connection to Halsbury's Laws of England, Fourth Edition, Volume 44 page 570 wherein it has been stated that: 
"The general rule is that all statutes, other than those which are merely declaratory or which relate only to matters of procedure or of evidence, are prima facie prospective, and retrospective effect is not to be given to them unless, by express words or necessary implications, it appears that this was the intention of the legislature..." 
38. It has also been stated in the said volume of Halsbury's Laws of England at page 574 that: 
"The presumption against retrospection does not apply to legislation concerned merely with matters of procedure or of evidence; on the contrary, provisions of that nature are to be construed as retrospective unless there is a clear indication that such was not the intention of Parliament."" 
(emphasis added) 30. Coming now to the last question with regard to the right of the accused to give his evidence, like the complainant, on affidavit, the High Court has held that subject to the provisions of sections 315 and 316 of the Code of Criminal Procedure the accused can also give his evidence on affidavit. The High Court was fully conscious that section 145(1) does not provide for the accused to give his evidence, like the complainant, on affidavit. But the High Court argued that there was no express bar in law against the accused giving his evidence on affidavit and more importantly providing a similar right to the accused would be in furtherance of the legislative intent to make the trial process swifter. In paragraph 29 of the judgment, the High Court observed as follows: 
"It is true that section 145(1) confers a right on the complainant to give evidence on affidavit. It does not speak of similar right being conferred on the accused. The Legislature in their wisdom may not have thought it proper to incorporate a word `accused' with the word `complainant' in sub-section (1) of section 145 in view of the immunity conferred on the accused from being compelled to be a witness against himself under Article 20(3) of the Constitution of India...." 
Then in paragraph 31 of the judgment it observed: 
".... Merely because, section 145(1) does not expressly permit the accused to do so, does not mean that the Magistrate cannot allow the accused to give his evidence on affidavit by applying the same analogy unless there is just and reasonable ground to refuse such permission. There is no express bar on the accused to give evidence on affidavit either in the Act or in the Code..... I find no justified reason to refuse permission to the accused to give his evidence on affidavit subject to the provisions contained in sections 315 and 316 of the Code." 
31. On this issue, we are afraid that the High Court overreached itself and took a course that amounts to taking-over the legislative functions. 

32. On a bare reading of section 143 it is clear that the legislature provided for the complainant to give his evidence on affidavit and did not provide for the accused to similarly do so. But the High Court thought that not mentioning the accused along with the complainant in sub-section (1) of section 145 was merely an omission by the legislature that it could fill up without difficulty. Even though the legislature in their wisdom did not deem it proper to incorporate the word `accused' with the word `complainant' in section 145(1), it did not mean that the Magistrate could not allow the accused to give his evidence on affidavit by applying the same analogy unless there was a just and reasonable ground to refuse such permission. There are two errors apparent in the reasoning of the High Court. First, if the legislature in their wisdom did not think "it proper to incorporate a word `accused' with the word `complainant' in section 145(1)......", it was not open to the High Court to fill up the self perceived blank. Secondly, the High Court was in error in drawing an analogy between the evidences of the complainant and the accused in a case of dishonoured cheque. The case of the complainant in a complaint under section 138 of the Act would be based largely on documentary evidence. The accused, on the other hand, in a large number of cases, may not lead any evidence at all and let the prosecution stand or fall on its own evidence. In case the defence does lead any evidence, the nature of its evidence may not be necessarily documentary; in all likelihood the defence would lead other kinds of evidences to rebut the presumption that the issuance of the cheque was not in the discharge of any debt or liability. This is the basic difference between the nature of the complainant's evidence and the evidence of the accused in a case of dishonoured cheque. It is, therefore, wrong to equate the defence evidence with the complainant's evidence and to extend the same option to the accused as well. 

33. Coming back to the fist error in the High Court's reasoning, in the guise of interpretation it is not permissible for the court to make additions in the law and to read into it something that is just not there. In Union of India and Anr. vs. Deoki Nandan Aggarwal, 1992 Supp. (1) SCC 323, this court sounded the note of caution against the court usurping the role of legislator in the guise of interpretation. The court observed: 
"14. ...it is not the duty of the court either to enlarge the scope of the legislation or the intention of the legislature when the language of the provision is plain and unambiguous. The court cannot rewrite, recast or reframe the legislation for the very good reason that it has no power to legislate. The power to legislate has not been conferred on the courts. The court cannot add words to a statute or read words into it which are not there. Assuming there is a defect or an omission in the words used by the legislature the court could not go to its aid to correct or make up the deficiency. Courts shall decide what the law is and not what it should be. The court of course adopts a construction which will carry out the obvious intention of the legislature but could not legislate itself. But to invoke judicial activism to set at naught the legislative judgment is subversive of the constitutional harmony and comity of instrumentalities...." 
34. In Raghunath Rai Bareja and Anr. vs. Punjab National Bank and Ors., (2007) 2 SCC 230 while observing that it is the task of the elected representatives of the people to legislate and not that of the Judge even if it results in hardship or inconvenience, Supreme Court quoted in affirmation, the observation of Justice Frankfurter of the US Supreme Court which is as follows:
"41. As stated by Justice Frankfurter of the US Supreme Court (see "Of Law and Men: Papers and addresses of Felix Frankfurter") 
"Even within their area of choice the courts are not at large. They are confined by the nature and scope of the judicial function in its particular exercise in the field of interpretation. They are under the constraints imposed by the judicial function in our democratic society. As a matter of verbal recognition certainly, no one will gainsay that the function in construing a statute is to ascertain the meaning of words used by the legislator. To go beyond it is to usurp a power which our democracy has lodged in its elected legislature. The great judges have constantly admonished there bretheren of the need for discipline in observing the limitations. A judge must not rewrite a statute, neither to enlarge nor to contract it. Whatever temptations the statesmanship of policy- making might wisely suggest, construction must eschew interpolation and evisceration. He must not read in by way of creation. He must not read out except to avoid patent nonsense or internal contradiction." 
35. In Duport Steels Ltd. vs. Sirs, [1980] 1 All ER 529, 534, Lord Scarman expounded the legal position in the following words: 
"But in the field of statute law the judge must be obedient to the will of Parliament as expressed in its enactments. In this field Parliament makes and unmakes the law. The judge's duty is to interpret and to apply the law not to change it to meet the judge's idea of what justice requires. Interpretation does, of course, imply in the interpreter a power of choice where differing construction are possible. But our law require the judge to choose the construction which in his judgment best meets the legislative purpose of the enactment. If the result be unjust but inevitable, the judge may say so and invite Parliament to reconsider its provision. But he must not deny the statute."
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