Vol-II June & July, 2007

Part 6 & 7
IMPORTANT CASE LAWS
Compiled by
Tamil Nadu State Judicial Academy
Chennai 28
SUPREME COURT CITATIONS
2007 1 MLJ (Crl) 1277 (SC)
Naveen Chandra Vs. State of Uttaranchal
Secs. 96,97 and 105 Right of private defence to body Nature and
Extent of Court can consider plea even if it is not raised by the accused Burden of
proof is on accused Burden stands discharged by showing preponderance of
probabilities Relevant factors to be taken into consideration by the Court indicated
On
facts held through the accused was exercising the Right of private defence he had
exceeded the same Conviction under Section 302 I.P.C. altered to one under Section
304 (Part I) I.P.C.
(2007) 4 Supreme Court Cases 257
Crl. Appeal No.1228 of 2004 , Abdul Vahab Abdulmajid Shaikh and
others Vs. State of Gujarat, Crl. Appeal No. 129 of 2005, Abdul Vahab
Abdulmajid Shaikh and others Vs. State of Gujarat, Crl. Appeal No. 130
of 2005, State of Gujarat Vs. Yasin Ganibhai Haveliwala and Others
Crl. Appeal No. 1228 of 2004 with Nos. 129-30 of 2005, decided on April
24, 2007
A. Evidence Act, 1872 S.24 Confession of accused Voluntary nature
of - Determination of Retraction at later stage Effect of Held, merely because the
confession was retracted later; that does not mean that the confession was not
voluntary in nature Whether the accused was willing to give confession voluntarily or
not is to be determined from his mental state at the time when he gave the confession
In the present case, confession of accused recorded by Dy. Commissioner of Police
(DCP) under TADA Act Accused had expressed his willingness to make the
confession DCP took all precautions to ascertain that the confession was voluntary
Confession recorded after complying with all procedural formalities and these facts
incorporated in confessional statement Before the Magistrate, accused had no case
that he was put under pressure or third-degree methods had been used against him to
extract confession In view of the said facts, held, the above confession was voluntary,
truthful and admissible in evidence Terrorist and Disruptive Activities (Prevention) Act,
1987 S. 15 Criminal Procudure
Code, 1973, S.164
Held:
Merely because the confession was retracted later, that does not mean that the
confession was not voluntary in nature. All confessions are invariably retracted at a later
stage, therefore, the retraction by itself is not a ground to discard the confession by
holding that it was not voluntarily made. Whether the accused was willing to give a
confession voluntarily or not is to be determined from his mental state at the time when
he gave the confession. (Paras 13 and 8)
In the present case, the accused was arrested by the police and as he expressed his
willingness to make a confession, he was produced before the DCP and told that he
was
not legally bound to give a voluntary statement and that in case any statement is found
to
be false, it would be used against him. The DCP had taken all precautions to ascertain
that the confession was voluntary. All formalities had been complied with and these
facts
are incorporated in the confessional statement. There is nothing on record to show that
the accused was under pressure to give any confession. When he produced before the
Magistrate, he had no case that he was put under pressure or third-degree methods
had
been used against him to extract the confession. When he was questioned under
Section
313 CrPC, he had only stated that he had not given any confession as recorded by DCP
after apprising him that he was not bound to give a confession and in case he gave the
confession, it would be used against him. Therefore, there is no force in the contention
of
the accused-appellants regarding the inadmissibility of the confession. There is ample
evidence to show that the confession was truthful and gained support from other items
of
evidence.
(Paras 8 and 13)
(2007) 1 MLJ (Crl) 1250
Raghu Lakshminarayanan Vs. Fine Tubes
(A) Negotiable Instruments Act (26 of 1881), Sections 138, 141 Companies
Act (1 of 1956)
7. A bare perusal of the complaint petition would show that the accused No.1
was described therein as ' a business concern'. It was not described as a Company or a
partnership firm or an Association of Persons.
8. ..............
9. The description of the accused in the complaint petition is absolutely vague.
A juristic person can be a Company within the meaning of the provisions of the
Companies Act, 1956 or a partnership within the meaning of the provisions of the Indian
Partnership Act, 1932 or an association of persons which ordinarily would mean a body
of persons which is not incorporated under any statute. A proprietary concern, however,
stands absolutely on a different footing. A person may carry on business in the name of
a business concern, but he being proprietor thereof, would be solely responsible for
conduct of its affairs. A proprietary concern is not a Company. Company in terms of the
explanation appended to Section 141 of the Negotiable Instruments Act, means any
body
corporate and includes a firm or other association of individuals. Director has been
defined to mean in relation to a firm, a partner in the firm. Thus, whereas in relation to a
Company, incorporated and registered under the Companies Act, 1956 or any other
statute, a person as a Director must come within the purview of the said description, so
far as a firm is concerned, the same would carry the same meaning as contained in the
Indian Partnership Act.
2007 (2) TLNJ(Civil) 585 (586)
Mohit Bhargava Vs. Bharat Bhushan Bhargava & Ors.
Civil Procedure Code 1908 as amended Section 39 (4) and Order 21, Rule
54 Executing Court order restraining person from handling over property in his
possession to judgment debtor along with concerned document and keeping documents
in safe custody they are in the nature of a freezing order or a Mareva injunction
and an order akin to an Anton Piller order, orders that can be issued even if the property
or the person concerned is outside the jurisdiction of the Court.
2007 (2) TLNJ (Civil) 491
Usha Balashaheb Swami & Ors. Vs. Kiran Appaso Swami & Ors.
Civil Procedure Code 1908 as amended Order 6, Rule 17 Amendment of
written statement scope of it is equally well settled principle that a prayer for
amendment of the plaint and a prayer for amendment of the written statement stand on
different footings. The general principle that amendment of pleadings cannot be allowed
so as to alter materially or substitute cause of action or the nature of claim applies to
amendments to plaint. It has no counterpart in the principles relating to amendment of
the written statement. Therefore, addition of a new ground of defence or substituting or
altering a defence or taking inconsistent pleas in the written statement would not be
objectionable while adding, altering or substituting a new cause of action in the plaint
may be objectionable. Such being the settled law, we must hold that in the case of
amendment of a written statement, the courts are more liberal in allowing an
amendment
than that of a plaint as the question of prejudice would be far less in the former than in
the latter case on facts.
It was neither a case of withdrawal of admission made in the written statement
nor a case of washing out admission made by the appellant in the written statement, by
such amendment the appellant had kept the admissions intact and only added certain
additional facts which need to be proved by the plaintiff and defendant no.2 to 8 to get
shares in the suit properties alleged to have been admitted by the appellants in their
written statement. Accordingly, we are of the view that the appellants are only raising an
issue regarding the legitimacy of plaintiff and defendant no.3 to 7 to inherit the suit
properties as heirs and legal representatives of the deceased Appasao, the High Court
was not justified in reversing the order of the trial court and rejecting the application for
amendment of the written statement.
2007 -2 L.W. 955
T.Anjanappa and Ors. Vs. Somalingappa and Ano.
Adverse Possession/ Requisites that constitute, Limitation Act (1963),
Schedule/Article 65 Concept of adverse possession contemplates hostiles possession
i.e. a possession which is expressly or impliedly in denial of the titleof the true owner
Possession to be adverse must be possession by a person who does not acknowledge
the
other's rights bit denies them Where possession could be referred to a lawful title, it
will
not be considered to be adverse A person who enters into possession having a lawful
title, cannot divest another of that title by pretending that he had no title to all.
Para 12,16
Mere possession however long does not necessarily means 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 In order to constitute adverse
possession
the possession proved must be adequate in continuity, in publicity and in extent so as to
show that is adverse to the true owner 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.
Para 22
High Court of Karnataka erred in holding that even if the defendants claim
adverse possession, they do not have to prove who is the true owner and even if they
had
believed that the Government was the true owner and not the plaintiffs, the same was
inconsequential Obviously, the requirements of proving adverse possession have not
been established Appeals allowed.
Para 27
2007-1-L.W. (Crl.) 534
Sabitha Ramamurthy & Anr. Vs. R.B.S. Channabasavaradhya
Negotiable Instruments Act (1881), Sections 138, 141, Criminal P.C., Section
200, S. 482 Appellants herein were not directors of the company at the material time
In the complaint petitions, it was categorically stated that the company had been dealing
with imparting of computer education represented by its Mananging Director, Chairman,
Vice-Chairman and other Directors, borrowed a sum of Rs. 2,25,000/- from the
Respondent and towards payment of the said loan, the accused had issued two
cheques on 23.06.2001 and 30.06.2001 for a sum of Rs.1,24,406/- each which upon
being presented were dishonoured as the company did not have sufficient fund It was
stated further that the accused persons have failed to clear the liability and the accused
being Company, all the directors are responsible for the clearance of liability under
Section 141 of the N.I. Act and the acts and deeds of the accused persons is
punishable under Section 138 of N.I. Act.
Appellants herein filed an application under Section 482 of the Crl.P.C. praying
for quashing of the processes issued against them in the said proceedings, which was
dismissed stating that ''question as to whether these petitioners were involved in day to
day affairs of the business of the company is to be decided based on the material on
record collected during the course of trial'' Appeal to Supreme Court was preferred
therefrom.
Held: A bare perusal of the complaint petitions demonstrates that the statutory
requirements contained in Section 141 of the Negotiable Instruments Act had not been
complied with.
What is required is a clear statement of fact so as to enable the court to arrive at a
prima facie opinion that the accused are vicariously liable.
Section 141 raises a legal fiction By reason of the said provision, a person
although is not personally liable for commission such an offence would be vicariously
liable therefor such vicarious liability can be inferred so far as a company registered or
incorporated under the Companies Act, 1956 is concerned only if the requisite
statements, which are required to be averred in the complaint petition, are made so as
to make the accused therein vicariously liable for the offence committed by the
company
Before a person can be made vicariously liable, strict complaince of the statutory
requirements would be insisted.
Not only the averments made in paragraph 7 of the complaint petitions does not
meet the said statutory requirements, the sworn statement of the witness made by the
son
of Respondent herein, does not contain any statement that Appellants were in charge of
the business of the company.
In terms of Section 200 of the Code of Criminal Procedure, the complainant is
bound to make statements on oath as to how the offence has been committed and how
the
accused persons are responsible therefor Impugned judgments of the High Court
cannot
be sustained which are set aside accordingly and the processes issued by the
Magistrate,
against Appellants herein are quashed.
(2007) 3 MLJ 799 (SC)
Chanda (Dead) through Lrs. Vs. Rattni and Another
Specific Relief Act (47 of 1963), Section 28 Contract for sale of immovable
property Sale of Failure of decree holder to deposit balance sale consideration
Power of Court to grant extenstion of time Though decree holder obtained exparte
decree for specific performance, he did not deposit balance sale consideration Power
under Section 28 is discretionary Court cannot ordinarily annual decree once passed
by
it Section 28 provides for complete relief to both parties in terms of decree Court
does
not cease to have power to extend time and deposit of balance sale consideration,
though
the time originally granted had expired Since decree holder did not deposit balance
sale
consideration within the time stipulated, Lower Court correct in rescinding contract
Revision dismissed.
(2007) 3 MLJ 832 (SC)
Aditya Hotels Pvt. Ltd. Vs. Bombay Swadeshi Stores Ltd and Others
Code of Criminal Procedure (5 of 1908), Order 8 Rule 1 Extenstion of time ,
granted for filing written statement Held, no reason, indicated to justify acceptance of
written statement, after expiry of time fixed As such, orders of trial Court and High
Court, set aside.
(2007) 3 MLJ 834 (SC)
Makhan Singh (D) by Lrs. Vs. Kulwant Singh
Specific Relief Act (47 of 1963) Hindu Sucession Act (30 of 1956), Section 8
Suit for specific performance Onus of proof on existence or otherwise or Joint Hindu
Family property Held, property, could not be presumed to be Hindu Joint Family
property merely because of existence of Joint Hindu Family No evidence, to show that
property in question, purchased from income of Joint Family Burden to prove that
property in question, Joint Family property, on party who so asserted it Self acquired
property of one of member of Joint Family falling to his sons by succession, not property
of Joint Hindu Family.
HIGH COURT CITATIONS
(2007) 1 MLJ (Crl) 1215
G. Munivelu Vs. S. Masilamani
Registration of Births and Deaths Act (18 of 1969) Sec. 13 (3), 15 Tamil
Nadu Registration of Births and Deaths Rules, 2000 Rule 11 (6) Verification of the
correctness of the birth or death Judicial Magistrate after following formalities like
publication and after recording sworn statement of the petitioner has passed order for
registering his date of birth No entry made in the Register of Birth maintained by the
Registrar Dispute under Correctness or cancellation can be agitated only before the
civil forum Revision dismissed Velu Vs. Malthi W/o. Shanmugam 1992 LW (Crl)
16, relied on .
(2007) 1 TLNJ 507 (Civil)
B. Narashimha Rao Vs. T. Raghavalu Naidu & Company, rep by its
Partner
T. Raghavalu Naidu,
Indian Partnership Act 1932 Section 32 and 72 Suit filed against
partnership and three partners decreed execution petition filed - 3rd defendant/partner
filed petition under Section 47 of Civil Procedure Code contention that he retired on
1.8.2001 given notice to plaintiff by certificate of posting on 31.08.2001 and that he is
not liable Section 47 petition dismissed - 3rd defendant filed civil revision petition in
High Court held, 3rd defendant has not given public notice as contemplated under
Section 72 of Indian Partnership Act cause of action for the suit arose before
retirement no agreement between retiring partner and the third party and the partners
of reconstituted firm objections not raised by 3rd defendant at the time of trial even
the notice sent under certificate of posting is subsequent to the date of cause of action
no illegality or infirmity in the order of the executing court civil revision petition
dismissed.
2007 -2-L.W. 987
R.S. Nagarajan Vs. R.S. Goapalan & 3 Others
C.P.C., Order 8, Rule 9/ Additional Written statement Application was
filed in lower court by Second defendant under Order 8 Rule 9 read with Section 151
C.P.C. for receiving additional written statement, stating that due to the high regard
which he had for his elder brother, the first defendant, he has been prevailed over to
sign the statement prepared by the first defendant, and now realizing the position, it has
become necessary for him to tell the truth before the Court by filing the additional
written statement, and in the additional written statement totally he is seeking to
introduce a new case Application having been dismissed by lower court, he filed this
revision and submitted that inconsistent plea can be taken in the written statement and
the Court below should have allowed the application filed by the petitioner for reception
of additional written statement Held: In the case on hand, the petitioner now tries to
introduce altogether a new case by way of filing an additional written statement and that
cannot be allowed Court below has rightly dismissed the application filed by the
petitioner There is no error of jurisdiction or illegality in the said order.
(2007) 2 L.W. 995
T. Ramaiya Vs. National Insurance Co.,
Motor Vehicles Act (1988), Section 164/ Insurance Company's liability
Defence of the Insurance Company before the MAC Tribunal was that there was
violation of conditions of the Policy by reason of 30 persons being carried in a vehicle
which has a permit to carry only 25 persons Award was passed by the Tribunal in
favour of the claimants who sustained injuries directing the Insurance Company before
the MAC Tribunal was that there was violation of conditions of the Policy by reason of
to pay compensation with a direction in the decree that the Insurance Company viz., the
first respondent herein shall be entitled to recover the award amounts from the
petitioner
(owner of the vehicle) after paying the same in accordance with award to the claimants

Owner of the vehicle filed these CRPs against the said order Held: there is no plea by
the Insurance Company that the accident was only because of taking more passengers
and there is no eye-witness on the part of the Insurance Company to prove that the
accident was only because of taking more number of persons than the permitted
number
of passengers.
In the instant case, the insurance company has agreed to indemnify the owner of
the vehicle in respect of 25 passengers, whereas the claimants are only 18 in numbers

Therefore necessarily the Insurance Company Viz., the first respondent herein is liable
to indemnify the petitioner As a result, that part of the award in all these claim
petitions giving right to the first respondent insurance company to recover the award
amounts from the petitioner/owner of the vehicle after paying the same to the claimants
stands set aside.
2007-2-L.W. 999
T.Tamilarasan Vs. Arokkiasamy & 2 Others
C.P.C., order 41, Rule 27/Additional evidence before appellate Court,
Procedure.
Evidence Act, Section 114/ Merely filing a statement on oath, by a party,
without offering himself to be cross examined Adverse inference, whether to be
drawn against him Held: It is clear that when in the appellate Court it is
established that notwithstanding due diligence such evidence could not be produced
during the trial stage or in cases where the appellate Court requests the document to
be produced for pronouncing judgment or for any other substantial cause, the
Appellate Court may allow such evidence or document to be produced or witness to
be examined.
It is also made clear that in cases where the appellate court takes a decision to
allow the additional evidence, it is to direct the Court from whose decree the appeal
is preferred, or any other Subordinate Court, to take such evidence and to send it to
the Appellate Court for decision.
It is one thing to say that the first appellate Court has allowed the documents
to be produced, and another thing, to prove the document through proper method of
evidence In the present case, the second aspect has not been followed by the first
appellate Court.
Paras 13,14
Effect of a party in not appearing in the witness box offering himself to be
cross examined, but not only filing a statement on oath has been held to be a case of
adverse inference to be drawn against him as per Section 114 of Evidence Act-
Conduct of the party in not entering into the witness box and the law on this aspect
as per the adverse inference.
First appellate Court has not appreciated the correct distinction between the
production of documents and proving of the documents as additional evidence
Law is clear on this aspect, it can never be said as it the plaintiff has waived his right
Case remanded back to the first appellate Court with a direction to follow the
provision on Order 41 Rules 27 and 28 CPC scrupulously by giving opportunities to
both the parties Second Appeal allowed.
Paras 18,19
2007-2-L.W. 1006
Bellamma Vs. Nagarathamma & 2 Others
C.P.C., Order 16, Rule 14 Order 16, Rule 14 enables a Civil Court to summon a
stranger to the suit to give evidence for the purpose of marking certain documents.
It is very clear that suo motu power applies only in respect of persons who were
not earlier called as witnesses Merely because the plaintiff failed to mark some of the
documents, that cannot be ground for enabling the Civil Court to exercise its suo motu
power under Order 16 Rule 14 of CPC, since the said clause clearly states that it
applies
only to persons who were not called as witnesses earlier.
As stated earlier, when once the plaintiff already filed an application and that was
dismissed and that order had become final, the Court does not think that any further
application can be filed on the same cause of action This is not a case where Order
16
Rule 14 of CPC can be invoked by the Court CRP allowed.
2007-1-L.W. (Crl.)
Dr. K. Sumathi Vs. 1. M.A. Jeya Raj & 2.Inspector of Police, Ambathurai
Police Station
Tamil Nadu Prohibition of Harassment of Woman Act (1988), Section
5, and Criminal P.C., Sections 468, 473/Extension of period of limitation in certain
cases Complaint was filed by Revision petitioner (a Research Scholar in the
Fandhigram University) under S.5 alleging that the first respondent herein (1st accused)
has served as her guide, and the first respondent caused various harassment to her
Petitioner herein filed two Criminal Miscellaneous Petitions before the Judicial
Magistrate with specific prayers to issue summons to the Vice Chancellor and include
him as second accused It was stated by petitioner that the attitude of the first
respondent
has been reported to the Vice Chancellor (by name M) and he wilfully failed to take
action against the first respondent and as per Section 5, the said Vice Chancellor is
liable
to be prosecuted, but the second respondent (Inspector of Police) has failed to include
him as second accused in C.C., and under the said circumstances, it has become just
and
necessary to issue summons to the Vice Chancellor and also to include him as second
accused Lower Court dismissed the petitions as barred by limitation and this Revision
was filed against the said order.
Paras 2,3
Held: The second part of Section 473 of the Criminal P.C. empowers the Court to
take cognizance of an offence after expiry of the period of limitation on the basis of
interest of justice even though delay has not been properly explained In the complaint,
as adverted to earlier, it has been clearly stated that the alleged harassment meted out
by
the revision petitioner and one Dr.S.L. have been properly reported to the then Vice
Chancellor by name M, but he has failed to take action Therefore, the lapses on the
part
of the said Vice Chancellor would clearly attract the penal provisions of Section 5 of the
Act.
Paras 10,11
Since necessary allegations have been made against the then Vice Chancellor in
the complaint itself, in the interest of justice, he can be included s second accused in
Calendar Case, as per the second limb of Section 473 of the Crl.P.C. - Judicial
Magistrate
directed to proceed against the accused mentioned in the petitions as per law
Revision
allowed.
Paras 11,13
2007-1-L.W. (Crl.) 440
K. Dhamodharan Vs. R.V.Narbabi
Protection of Human Rights Act (1993), Sections 2(d), 30, and
Criminal P.C., Section 482, Tamil Nadu (Procedure) Regulations (1997) framed
under Section 2(c), Criminal P.C., Sections 2(d), 193 Complaint was preferred by
the
respondent herein before the Court of the Chief Judicial Magistrate, Kumbakonam,
which
was formerly the Human Rights Court, under Section 2(d) of the Protection of Human
Rights Act r/w Section 200 of the Code of Criminal Procedure and the entire records in
the case was sent to the Court of the Principal District Judge, Thanjavur which was
notified as the Human Rights Court in the District of Thanjavur The latter chose to
send
the entire case records to the Judicial Magistrate No.I, Thanjavur to adhere to the
committal proceedings,as the Human Rights Court was not vested with the power to
take
up the private complaint directly on file without committal proceedings.
This petition is filed by the Accused seeking quashment of the criminal
proceedings on the file of the learned Judicial Magistrate No.I, Thanjavur As the
committal proceedings are in progress, the present petition has been filed by the
accused
seeking quashment of the whole proceedings Petition/accused would vehemently
submit that any complaint regarding the violation of human rights shall be submitted
only
before the State Commission constituted under the Protection of Human Rights Act,
1993
and no private complaint would lie as against the public servant.
Paras 1 to 6
Held: The cumulative reading of Section 12 (a) and 18 of the Protection of
Human Rights Act, 1993 and Section 2(c) of the State Human Rights Commission,
Tamil
Nadu (Procedure) Regulations, 1997 would reveal that the State Commission has the
authority to deal with a complaint as against a public servant Crl.O.P. dismissed.
Para 15
2007-1-L.W. (Crl.) 456
S.Soundarapandian Vs. Ponram & 8 Others.
Criminal P.C., Section 341 (1) / Appeal, procedure in appellate court, Sections
190, 195/Criminal Rules of Practice and Circular Orders, Rule 68/applicability Appeal
was before Sessions Court against order of magistrate rejecting complaint filed under
S.190 Sessions Judge passed order directing issue of notice to all respondent Order
was challenged in High Court under Section 482 contending that respondents are not
entitled to notice during the proceedings initiated by the petitioner under Section 341 (1)
and the application filed before the Sessions Judge, should not have been entertained
as
Criminal Appeal - Held: rejecting the plea, the very section contemplates specifically
issuance of notice to the other side before taking any decision on the appeal preferred
by
the petitioner.
It is thus held that in an appeal preferred as against refusal to complaint, the
proposed accused is entitled to notice Crl.O.P. dismissed.
2007-1-L.W. (Crl.) 517
G. Thiyagarajan Vs. State rep by the Deputy Superintendent of Police,
Vigilance and Anti Corruption, Virudhunagar
I.P.C., Sections 120 (B), 409, 167, 420, 477 (A), I.P.C., r/w. 109 I.P.C.,
Prevention of Corruption Act (1988), Sections 13 (2), and 13 (1) (c), (d), 15 r/w. 13
(1) (d) (ii), Criminal P.C., Sections 154, 157 (3), 164, 482 Petition to quash
proceedings was filed by the 8th accused Contention urged that the second
respondent
has no authority to register a case based on the information he has collected from any
anymous sources, as Section 154 of the Crl.P.C. contemplates registration of a case
based
on the information furnished by a third party, and the Inspector of Police, Vigilance and
Anti Corruption, Madurai (second respondent) cannot be the author of the complaint to
set the law in motion,etc.
Held: Here is a case where the Inspector of Police, second respondent herein, has
set the law in motion by registering the FIR not based on any information furnshied by a
third party but based on the information, he has gathered from some anonymous
sources
and also based on the discreet enquiry, he had held.
Para 5
As per Section 157, the information relating to the commission of cognizable
offence can be received either from a third party or otherwise for the purpose of
embarking upon an investigation in case of cognizable offences Station House Officer
is required to submit a report to the Judicial Magistrate concerned about such
information
he has got either from a third party or otherwise Therefore, to set the law in motion the
information flowed from a third party is not the only source Information can emanate
from any source including anonymous quarters That is the import of the provision
under Section 157.
Para 17
Court finds with due respect to the learned judge that the Judgment in Gnaneswaran
Vs. State [2004 M.L.J.(Crl.) 435] is per incuriam and not a stare decisis
Consequently
it lacks precendential potentiality.
Para 21
It is found that there is no abuse of the process of the Court by launching
proseuction as against the peitioner on the basis of the FIR registered by the second
respondent Crl.O.P. dismissed.
Para 22
2007-1-L.W. (Crl.) 523
Barnabas Vs. Sivakami
Negotiable Instruments Act (1881), Section 138, Criminal P.C., Sections 26,
302, 2(q)/''Pleader'', definition of Death of complainant during the pendency of
proceedings Application filed by his wife to substitute her in the place of the original
complainant was allowed and permission sought was granted by the Magistrate.
Revision against said order was filed by accused contending that the respondent,
who has been permitted to conduct the prosecution under Section 302 of the Crl.P.C.,
cannot legally enter into the box and give evidence in the place of the original
complainant, who is dead, and that in a summons case a complaint cannot be
continued in
the absence of the complainant on account of his death as per Section 256.
Held: there is no substance in the criminal revision case substitution in the place
of the deceased person does not take away the right of the person substituted to
depose
evidence evidence from his own knowledge as regards the facts and circumstances of a
case In fact, in such circumstances, such a person substituted in the place of the
deceased takes the dual rule of a pleader and complainant.
Paras 4,16,15
Judicial Magistrate is empowered under S.302, Crl.P.C. to grant permission to any
person to conduct the prosecution A person can prosecute the case personally or by a
pleader Pleader need not be an advocate, who has enrolled in the Bar Council the
term 'pleader' as per Section 2 (q) of the Crl.P.C. includes any other person appointed
with the permission of the Court to act in such proceeding.
There is no bar either under the Crl.P.C. or under the Evidence Act for a pleader or
an Advocate to enter into the box to depose evidence in a case from his own knowledge

But the oral testimony which emanates from such a witness shall be direct But such a
person cannot enter into the soul of another man, who is dead and speak as the
spokesperson of the dead person, when nothing has taken place in the presence of
such a
person The role now assigned under the garb of Section 302 of the Crl.P.C. cannot
legally deter her (respondent) from ascending the witness box to depose about the facts
and circumstances of the case on hand from her own knowledge.
Paras 7,8,10
2007-1-L.W. (Crl.) 527
Ramakannan Vs. Chettiar and Co. rep By its Partner K. Ganesh Krishna
Negotiable Instruments Act (1881), Sections 138 According to the revision
petitioner, the undated cheque was issued by him only as a collateral security on
09.09.1998 and nearly after a lapse of two years, the respondent herein had filled up
the
cheque with the date 28.03.2000 and misused the same and therefore, the complaint
given
by respondent, itself was not legally maintainable.
Held: In this case it has been proved that the undated cheque was handed over one
year and six months prior to the date of the cheque Dishonour of the same would not
create any criminal liability on the revision petitioner/accused.
Under Section 138, the validity of a cheque is only for 6 months from the date of
issuance Implied authorisation for filling up the cheque should certainly be within the
limitation of six months and not more than the period of limitation.
Courts below without considering the legal aspect have given the concurrent
finding which has to be construed as a manifest error of law Criminal revision petition
allowed Conviction and sentence imposed by the Courts below set aside and the
amount of Rs.25,000/- deposited by the revision petitioner is ordered to be refunded to
him.
2007-1-L.W. (Crl.) 547
M.Palaniappan Vs. G. Ravichandran
Criminal P.C., Section 200, I.P.C., Sections 465, 379 and 506 (ii), 482
Order was passed by Magistrate taking the private complaint on his file, and without
conducting any enquiry as contemplated under the Crl.P.C., straightaway issued
summons to the accused for appearance and for answering the charges Contention
was
urged on behalf of the petitioner in the O.P. that the procedure contemplated under the
Code having not been followed and sworn statement of the complainant has not been
taken and materials have not been received and that only on satisfaction of those
materials, if prima facie case is made out, thereafter such issuance of summons could
be
done Held: under the facts and circumstances of the case, the process issued against
the
petitioner is quashed However, after conducting inquiry, if the learned Magistrate finds
materials to proceed against the petitioner, process may be issued.
2007-1-L.W. (Crl.) 553
P. Arumugam Vs. Rajamani
Negotiable Instruments Act (1881), Section 138, Criminal P.C.,
Section 243 (2)/Power of Court to send disputed cheque to handwriting expert for
comparison Revision against the order of the Judicial Magistrate dismissing the
petition filed by the petitioner (second accused) to send the disputed cheque for hand
writing expert to ascertain the age of the signature and the age of the typing matter in
the
cheque leaf Held: No prejudice would be caused to the respondent on directing the
learned Judicial Magistrate to send the disputed cheque for hand writing expert to
ascertain the age of the typed matter as well as the signature of the accused in the
disputed cheque Ex.P.1 Order of Judicial Magistrate set aside Judicial Magistrate
directed to send the disputed cheque to a hand writing expert, to ascertain the age of
the
signature and typed matter found in the Cheque Ex.P1 Revision allowed.
(2007) 3 MLJ 845
Arukkani (died) and Others Vs. Subramaniam
Transfer of Property Act (4 of 1882), Section 126 Indian Contract Act
(9 of 1872), Section 23 Settlement deed Revocation of Undue influence Effect of
Settlement deed revoked on the ground that it was executed on the misrepresentation
that it was a will Power of revocation not reserved under settlement deed
Cancellation
of settlement deed is invalid Second appeal dismissed.
(2007) 3 MLJ 857
T.Tamilarasan Vs.Arokkiasamy and Others
Code of Criminal Procedure (5 of 1908), Order 41, Rules 27 and 28,
Section 100 Judgment and decree of trial Court, reversed by First Appellate Court
solely on basis of additional documents received, holding that plaintiff has suppressed
fact that his patta under Exhibit A-1, cancelled Held: additional documents filed,
straight away taken by first appellate Court without giving any opportunity to plaintiff to
disprove veracity or otherwise of such documents by way of evidence As such,
reliance
placed on those documents, which, not proved before Court below, could not be
sustained
Second Appeal allowed.