ARTICLES

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Partial Decriminalization of Unnatural Offences: is it enough for PRIDE?

“Human sexuality cannot be reduced to a binary formulation. Nor can it be defined narrowly in terms of its function as a means to procreation. To confine it to closed categories would result in denuding human liberty of its full content as a constitutional right.”

India being the largest democracy in the world observes modernist trends and secularizing trajectories but it still comprises of deeply rooted traditional religious and cultural outlook towards the concept of family and sexual conduct. However, over the last decade, there has been a profound change in the perception of sexuality and gender politics in India due to increased awareness and heightened visibility through the various social movements and media discourses.

In the 19th century, the British discovered a community of enunch and legislated for their surveillance and control under the Criminal Tribes Act. Lord Macaulay who was the then head of the Law Commission drafted Section 377 of the India Penal Code in 1862 which was based on Britain’s former anti-sodomy laws. Thus section 377 classified homosexual act as unnatural and a cognizable offense. This law made the common man believed that other than heterosexual act any other act which is sexual in nature is unnatural. We, however, were not aware of our Vedic literature which talked about the three existing genders of human race namely male, female and the third gender. People belonging to the third gender were never denied of their basic rights but with the passage of time, the police authorities were given the license to freely harass and torture them.

In 1965, Dr. John Oliven in his book “Sexual Hygiene and Pathology” coined the term ‘transgender’. Dr. Oliven used the word “transgender” as a synonym for “transsexual” in reference to people who transition through surgery. According to him where the compulsive urge reaches beyond female vestments and becomes an urge for gender ('sex’) change, transvestism becomes 'trans-sexualism’. Nowadays the term LGBT (Lesbian, Gay, Bisexual, Transgender, etc.) is used as an umbrella term that would cover a wide range of identities that might not fit with the traditional notions of gender.

There were several societies and organization made who were coming forward to address the issues related to the people belonging to the LGBT community. India in the year 1977 got its own LGBT activists in the form of Shakuntala Devi who in her book named ‘The World of Homosexuals’ talked about the struggles of the homosexual. This book contained interviews with the homosexuals and is said to be the first study of homosexuality in India. Since the majority of the problems faced by the LGBT community was due to the lack of awareness and prejudice there were several conferences held in the 80s and 90s like the All India Hijra Conference, AIDS Anti-Discrimination Movement which saw a lot of participation. In the year 1991 ABVA presented a report “Less than Gay: A citizen’s Report on the Status of Homosexuality in India” which is said to be the first document asking for the gay rights in India. In this report, they prepared a charter known as the LGBTQ (Lesbian, Gay, Bisexual, Transgender, Queer) Manifesto which demanded the repeal of section 377 along with several sections of the Army, Navy and Air Force Act, 1950 which criminalizes homosexuality. They also filed a PIL in the Delhi High Court in the year 1994 challenging the fundamental right to privacy guaranteed to the citizens of India by the Constitution. Since people were scared of the consequences of coming out and public prosecution, the PIL was quashed in the year 2001.

Since we know that the law evolves with the society so we saw the changing views on 377 throughout the 21st century. In 2001 the Naz Foundation through the petition urged the judiciary to decriminalize the consensual sex between people of the same gender. In 2009 the Delhi High Court decriminalized the consensual sex between two adults of the same gender. But this judgment was repealed by the Supreme Court of India in the year 2013 saying that the matters pertaining to the repealing or amending of Section 377 should be left to the Parliament and not the judiciary. In Suresh Kumar Koushal case, SC had recriminalized homosexuality by restoring Section 377 in the Indian Penal Code, 1860 in its original form. 2018 was an important year for the LGBT community as the Supreme Court of India agreed to hear a petition to revisit the 2013 Naz foundation judgment. The petition was filed on 29th June 2016 and on 6th September 2018 the court held 377 unconstitutional but upheld the portion which talks about the sex with minors, non-consensual sexual acts and bestiality thus partially decriminalizing it.

For years many LGBT people lived in closet fearing the legal persecution as well as social discrimination in jobs and other spheres of life. But in the recent years, India witnessed a huge shift in the attitude of the general public through the works of activists, sensitizing the Indian public towards LGBT issue and making them understand it was important to become a voice for the queer community. Although as the society has progressed and the apex court's judgment went in the favor of the sexual minorities which now granted them at least a legal protection and gave them a legal direction to fight against their discrimination. But the role of society is also needed in accepting what is natural and opening its arms for its queer community.

 

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The Question of Jurisdiction of A Foreign Court Vis-À-Vis The Family Court In India: Read Judgment

Title of the Case – The Question of Jurisdiction of A Foreign Court Vis-À-Vis The Family Court In India

Name of the caseP.D. vs. U.W. CONT.CAS(C) 338/2019 & CM Appl. 18484/2019

Date of Judgment 6th June, 2019

Judges: Justice Prateek Jalan

Subject and sections involved Section 2 (b) and 10 of the Contempt of Courts Act, 1971, Article 215 of the Constitution of India, Rule 2A and 4 of Order XXXIX of the CPC

Issue:

  1. Whether the Court ought to entertain the proceedings or to relegate the petitioner to proceedings before the Family Court under Order XXXIX Rule 2A.

Fact of the Case:

  • The petitioner and the respondent are both Indian citizens, resident in the United States of America. 
  • 12 Dec, 2014, They were married in New Delhi under the Hindu Marriage Act, 1955 and a son, born on 23 Dec, 2016.
  • Both parties have, towards the end of 2018, filed matrimonial proceedings against each other.
  • Although there is some controversy as to the exact chronology of events in this regard, it appears that the respondent filed divorce proceedings before the Superior Court in New Jersey on 21.11.2018, and the petitioner filed proceedings under Section 13(1)(a) of the HMA on 11.12.2018.
  • In January, 2019, the petitioner also filed a suit in the Family Court, Dwarka, for declaration and permanent injunction, restraining the respondent from proceeding with his petition in New Jersey.
  • The order dated 08.02.2019 referred to above was passed on the petitioner's application under Order XXXIX Rule 1 & 2 in that suit. The respondent has since filed an application under Order XXXIX Rule 4 of the CPC, before the Family Court, for vacating the ex-parte injunction. That application remains pending, and is next fixed for hearing on 17.07.2019.
  • The aforesaid facts have led to the institution of these proceedings under Sections 2(b) and 10 of the Act, read with Article 215 of the Constitution. Although the petitioner had earlier filed an application under Order XXXIX Rule 2A, that was not pressed in view of the present contempt petition.

Ratio of the case -

Maintainability of the Proceeding

It is important to recall that the purpose of the Court's contempt jurisdiction is not just to ensure execution or implementation of orders, but to secure public confidence in the administration of justice itself. The power of the Courts to make orders and give directions would be much diminished without the power to ensure the enforcement of those orders and to punish those who violate them. The Supreme Court in J R Parashar vs. Prashant Bhushan (2001) 6 SCC 735 explained this in the following terms:-

"A civil society is founded on a respect for the law. If every citizen chose to break the law, we would have no society at all, at least not a civil one. It is this respect for the law and of the law-enforcing agencies that, somewhat paradoxically, ensures the freedoms recognized in the Constitution. The respect is at best a fragile foundation. While it is to be built and sustained by the conduct of the persons administering the law, it has to be shored up by sanctions for actual breaches of the law and for actions destroying that respect. The law of contempt is framed for the second purpose."

the merits of the order passed by the Family Court as the same has been obtained by fraud as the petitioner misrepresented

the Supreme Court in Surya Vadanan vs. State of Tamil Nadu (2015) 5 SCC 450 held that one cannot decide whether the order is correct or not, for the purposes of compliance. It has been stated as follows: -

"54. As has been held in Arathi Bandi [Arathi Bandi v. Bandi Jagadrakshaka Rao, (2013) 15 SCC 790 : (2014) 5 SCC (Civ) 475] a violation of an interim or an interlocutory order passed by a court of competent jurisdiction ought to be viewed strictly if the rule of law is to be maintained. No litigant can be permitted to defy or decline adherence to an interim or an interlocutory order of a court merely because he or she is of the opinion that that order is incorrect--that has to be judged by a superior court or by another court having jurisdiction to do so. It is in this context that the observations of this Court in Sarita Sharma [Sarita Sharma v. Sushil Sharma, (2000) 3 SCC 14 : 2000 SCC (Cri) 568] and Ruchi Majoo [Ruchi Majoo v. Sanjeev Majoo, (2011) 6 SCC 479 : (2011) 3 SCC (Civ) 396 : (2011) 2 SCC (Cri) 1033] have to be appreciated. If as a general principle, the violation of an interim or an interlocutory order is not viewed seriously, it will have widespread deleterious effects on the authority of courts to implement their interim or interlocutory orders or compel their adherence. Extrapolating this to the courts in our country, it is common knowledge that in cases of matrimonial differences in our country, quite often more than one Family Court has jurisdiction over the subject-matter in issue. In such a situation, can a litigant say that he or she will obey the interim or interlocutory order of a particular Family Court and not that of another? Similarly, can one Family Court hold that an interim or an interlocutory order of another Family Court on the same subject-matter may be ignored in the best interests and welfare of the child? We think not. An interim or an interlocutory is precisely what it is--interim or interlocutory and is always subject to modification or vacation by the court that passes that interim or interlocutory order. There is no finality attached to an interim or an interlocutory order. We may add a word of caution here--merely because a parent has violated an order of a foreign court does not mean that that parent should be penalised for it. The conduct of the parent may certainly be taken into account for passing a final order, but that ought not to have a penalising result."

Whether or not the petitioner had submitted to the jurisdiction of the New Jersey Court is a matter which might weigh in the mind of the Family Court in deciding the application under Order XXXIX Rule 4.

Ms. Taneja has also not been able to substantiate her contention that the proceedings in New Jersey had to be proceeded with by the respondent, failing which he would have been held to be in default and the case would have been dismissed. To establish the contention that the respondent was compelled in law to proceed in New Jersey, it was incumbent upon him to produce some material to the effect that the New Jersey Court could not or did not grant an adjournment on the ground that the respondent was disabled from proceeding, by virtue of the Family Court's order. There is no evidence to this effect and in fact, to the contrary are the contentions of the respondent before the New Jersey Court, where he has opposed the petitioner's request for an adjournment.

In view of the fact that the petitioner has succeeded in demonstrating, prima facie, that the respondent has committed contempt of the order dated 08.02.2019, passed by the Family Court, Dwarka, he is called upon to show cause as to why he should not be punished under Section 10 read with 2(b) of the Contempt of Courts Act, 1971. 

 

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LEGAL NEWS

No alimony if wife financially independent: Calcutta High Court
On June 15th, 2019 Calcutta High Court has maintained that a woman, who is not only earning but also has adequate financial resources, has no right to claim for maintenance after divorce from her husband. The bench of Justice Biswajit Basu, rightfully suggested that ‘Men can be victims too’. Just as it is not right to ignore the plight of an oppressed woman, it is not right to continuously shame a man for no fault of his. Forget ordinary men, even celebrities like Hrithik Roshan were not spared, who had to pay a staggering Rs. 400 crores as alimony to his wife, Suzanne Khan after divorce. As such, the decision taken by the Calcutta High Court is not only a welcome one but also another step in the right direction after the much-touted amendment in Section 498 A of the IPC, which gave a huge relief to men harassed by false complaints under the anti-dowry provisions of the IPC. We hope that the judiciary continues to take such steps which take the Indian society as a whole forward.
Date - Tue, 18 Jun 2019 02:15 PM


Doctors call off 7 days long strike after meeting with WB CM Mamata Banerjee.
On Monday, the agitating doctors in West Bengal called off their seven-day protest following assurances of safety by the Chief Minister, Mamta Bannerjee. A meeting was held where thirty-one representatives, including two from each medical college of the State, met with the Chief Minister. In the meeting, Banerjee accepted the doctor’s demands for setting up grievance redressal cells at government hospitals. She also stressed on increased security at hospitals, including installation of collapsible gates at the entrances of the emergency ward.
Date - Tue, 18 Jun 2019 02:15 PM


Widow cannot be deprived of the property vested in her merely for contracting a second marriage: Karnataka HC
Karnataka High Court bench of Justice Krishna S. Dixit held that a widow can’t be deprived of property vested in her merely because she has contracted a second marriage. The Executing court has rejected the plea of parties on ground that the widow had contracted the second marriage after the death of her first husband. The High Court, in a petition challenging this order, observed that it was not shown any provision of law or a ruling of the Apex Court or of the other High Courts in support of the contention that the property vested in a widow goes out of her hands by divestation if and when she contracts a second marriage. "If unchastity or remarriage of a Hindu widower is not a ground to divest the property vested in him, it strikes at the root of law, at reason and justice to divest a Hindu widow of the property vested in her only because she has contracted a second marriage, especially when the Constitution of India mandates Gender Equality " court observed. Case: A.N. Amruth Kumar vs. A.N. Vanitha
Date - Tue, 18 Jun 2019 02:15 PM


Mere behaviour and sadness mood of spouse, not a ground for a divorce: Punjab & Haryana HC
The division bench, Punjab & Haryana High Court, comprising of Justice Rakesh Kumar Jain and Justice Harnaresh Singh Gill, in the latest judgement ( Ravinder Yadav vs Padmani @ Payal ) connotes that mere aggressive behaviour & sadness of mood of wife does not mean that the wife is spoiling the atmosphere of her matrimonial home. According to Section 13 of Hindu Marriage Act, 1955 the grounds for Divorce are Cruelty, Desertion, Conversion, Mental Disorder, Communicable Disease, Renunciation of the world, Presumption of death. However in the judgement the bench get down to "Nuptial knots cannot be allowed to be broken on these types of unfounded allegations of cruelty, physical or mental." In Rajni Goyal Vs Amit Kumar 2015, “adultery is the serious charge, but at the same time it is difficult to procure direct evidence for proving such charge. In Samar Ghosh Vs Jaya Ghosh, 2007, “cruelty differs from person to person, depending upon his or her upbrining, level of sensitivity, educational, family and cultural background, financial position, social status, customs, traditions, religious beliefs, human values and their value system.
Date - Tue, 18 Jun 2019 02:15 PM


No reasonable grounds for believing that the accusation against the accused is true – Bombay High Court
Dhan Singh, Manohar Nawaria, Rajendra Chaudhary and Lokesh Sharma- the four accused of the 2006 Malegaon blasts case named Dhan Singh S/O Shiv Singh Vs. UOI through NIA, State of Maharshtra through ATS and CBI (Cr. A. No. 58 OF 2016) were granted bail by the Bombay High Court on 15th June 2019. The order was passed by a Division Bench of Justice Indrajit Mahanty and AM Badar. They were released on a bail bond of Rs. 50,000 each. After their bail plea was rejected by a special court in 2016, the accused approached the High Court that year. Since there was an inconsistency of evidence by the investigation agencies, the court while granting the bail stated that the observations made by the Supreme Court in Lieutenant Colonel Prasad Purohit Vs. State of Maharashtra will be applicable in this case as well and hence granted the bail on the condition that they have to present for the trial every-day and must not influence witness or tamper with the evidence.
Date - Tue, 18 Jun 2019 02:15 PM


First ever life imprisonment in case of Anti Hijacking case-
First ever NIA Special court in Ahmadabad recently pronounced the judgment Jet Hijacking Case, making the accused Birju Kishor Salla the first convict under the Anti-Hijacking Act of 2016. He prepared a hijack note in English or Urdu in Mumbai to Delhi flight. He boarded on October 30, 2017, a Jet Airways flight from Bombay to Delhi and stuck this note in the tissue box of the front toilet shortly after takeoff: in the note this Flight No. 9W 339 are covered by Hijackers and aircraft should not be land. And don’t take it as a joke. Cargo area contains explosives bomb and we blast if you land Delhi and take it straight to Pakistan.. And Allah is great’. But pilot and co – pilot immediately inform to air trafficking system and take emergency landing in anhemdabad. Birju was arrested on suspicion and soon confessed to have thought up this scheme in an attempt to defame the airline and force its closure, taking the girl’s job with it. Thus, he became the first person to be prosecuted under the stringent new Anti-Hijacking Act 2016 Further the Special Judge (NIA) also noted that, under section 16(b), the Designated Court shall presume, unless the contrary is proved, that the accused had committed such offence, if there is evidence of use of force, threat of force or any other form of intimidation caused to the crew or passengers in connection with the commission of such offence. In the present case, the recovery of the threatening note was enough for the court to presume that the accused has committed an offence under section 3.” And he was punishable under under Sections 3(1), 3(2) (a) and 4(b) anti hijacking act. And section 3 said that “Whoever unlawfully and intentionally seizes or exercises control of an aircraft in service by force or threat thereof, or by coercion, or by any other form of intimidation, or by any technological means, commits the offence of hijacking. sec 3(2)(a) makes a threat to commit such offence or unlawfully and intentionally causes any person to receive such threat under circumstances which indicate that the threat is credible; or an sec 4(b) with imprisonment for life which shall mean imprisonment for the remainder of that person’s natural life and with fine . In the city session court of Ahmadabad NIA special case No 1 2018 State of Gujarat Vs .Birju Salla
Date - Tue, 18 Jun 2019 02:15 PM


No Evidence against Nana Patekar in molestation case: Mumbai Police
Veteran Bollywood actor Nana Patekar took a sigh of relief as Mumbai Police informed a Local Court that it has not found any evidence in molestation accusations against him by actress Tanushree Dutta. Dutta's complaint against Patekar last year sparked a nationwide '#MeToo' movement on social media. Besides Patekar, choreographer Ganesh Acharya, the film's producer Samee Siddiqui and director Rakesh Sarang were also booked. The 'B Summary' report will absolve them (Acharya, Siddiqui and Sarang) too from the case.
Date - Tue, 18 Jun 2019 02:15 PM


OPPORTUNITY

DAILY LEGAL GK

LEGAL NOTES

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Evidentiary value of extra judicial confession

The needs of extra judicial confession actually creep in when the urgency of the matter exceed fair judicial process. These are made by the party elsewhere then before a magistrate or in the court. The word used by the accused in such a confession weight the higher value that such exact words would be necessary to give the court an impression of what the true confession was. It can be made before a Magistrate who is not especially empowered to record confession u/s 164 CrPC or before a private individual. However unlike other form of confession extra judicial confession u/s 26 has its own limitations. Extra judicial confession made before persons with whom the accused had no relationship could not be relied upon. In Tarseeem Kumar v. Delhi Administration, 1995 the accused was acquitted on the ground that the extra judicial confession, as claimed, was made before stock witness who was casually knowing the accused. Such a extra judicial confession lacks credibility before the court. In state of Haryana v. Ved Prakash 1994 it was alleged that the accused made extra judicial confession to a Doctor and another person, both the strangers and the same was tape-recorded as if it was anticipated and the tape-recorder kept ready. Such a statement was not a confession in nature because of denoted influence and involuntariness of the accused to state such fact whether true or not. The nature of the confession is always voluntary where accuse submit himself before the fair people in just belief. Where extra judicial confession was made to a stranger and the excat words were not recorded and corpus delicit i.e, substance or foundation of an offence was not available, it was held that the confession could not be relied upon.

In Gura Singh v. State of Rajasthan 2001 the evidentiary value attached to the extra judicial confession was explained;

            “it is settled position of law that extra judicial confession, if true and voluntary, can be relied upon by the court to convict the accused for the commission of the crime alleged. Despite inherent weakness of the extra judicial confession as an item of evidence, it cannot be ignored when shown that such confession was made before a person who has no reason to state falsely and to whom it is made in the circumstances which tend to support the statement. Further, relying upon the judgment in Rao Shiv Bahadur Singh v. State of Vindhya Pradesh the has again in Maghar Singh v. State of Punjab held that the evidence in the form of extra judicial confession made by the accused to witness cannot be always termed to be a tainted evidence. Corroboration of such evidence is required only by the way of abundant caution. If the court believes the witness before whom the confession is made and is satisfied that the confession was true and voluntarily made, then the conviction can be found on the evidence alone. In Kishore Chand v. State of H.P. this court held that an unambiguous extra judicial confession possess high probative value force as it emanates from the person who committed the crime and is admissible in evidence provided it is free from suspicion and suggestion of any falsity. However, before relying on the alleged confession, the court has to be satisfied that it is voluntary and is not the result of inducement, threat, or promise envisaged u/s 24 of Evidence Act or was brought about in suspicious circumstances to circumvent section 25 and 26. The court is required to look into surrounding circumstances to find out as to whether such confession is not inspired by any improper or collateral consideration or circumvention of law suggesting that it may not be true. All relevant circumstances such as the person to whom the confession is made the time and place of making it, the circumstances in which it was made have to be scrutinized.”

Thus, in examining the weight of evidentiary value of extra judicial confession it is necessary to check whether the accused was the free man while making such a statement which can in all the probabilities go against him and can criminalise him. 

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Rights of an Arrested Person

Cr P C gives powers to the police for arresting a person with such power Cr P.C also provides rights to an arrested person. The arrest should not only be legal and justified but it should be effected strictly according to procedure established by law.  Thus no person shall be deprived of his life and personal liberty except according to procedure established by law.  Rights of an arrested person are as follows –

1. Right to know the grounds of arrest – (Section 50(1)) – The foremost requirement of lawful arrest is notification of the reason of arrest with the charges against him. According to this provision, every police officer or other person arresting any person without warrant shall forthwith communicate to him full particulars of the offence for which he is arrested or any other grounds for such arrest.

Case law :- Udaybhan Shuki vs State of UP,   High Court held that right to be notified of grounds of arrest is a precious right of the arrested person. This allows arrested person to move to court timely for bail, opportunity to clarify any mistake, to begin to prepare his defence.

Re Madhu Limaye, Court held that detention becomes unlawful if the ground given were not proper and sufficient.

2. Right to be informed of the provision for bail – (Section 50(2)) – This section provides that where a police officer arrests any person other than a person accused of a non-bailable offence without warrant, he shall inform the person arrested that he is entitled to be released on bail and that he may arrange for sureties on his behalf.

3. Information of arrest to a person nominated by accused – (Section 50 A) This section  provides that once the arrested person is brought to the police station, the police officer must inform a relative or a friend, or any other person of the arrested person’s choice, about his arrest. He must also tell the place where the arrested person has been kept. Further he must note down the name and address of the person who was informed about the arrest.  It shall be the duty of the magistrate before whom such person is produced to verify that the provisions of this section were complied with

This section has been added by the decision of Supreme Court in Joginder Singh v. State of Punjab and DK Basu v. State of West Bengal.

 

4. Right to be produced before magistrate within 24 hours – (Section 57) – This section lays down that no police officer shall detain in custody a person arrested without warrant for a longer period than under all the circumstances of the case is reasonable, and such period shall not, in the absence of a special order of a Magistrate under Section 167, exceed twenty four hours exclusive of the time necessary for the journey from the place of arrest to the Magistrate’s court.

In the case of Khatri (II) v. State of Bihar, SC has strongly urged upon the State and its police to ensure that this constitutional and legal requirement of bringing an arrested person before a judicial magistrate within 24 hours should be met.  It is essential that the magistrates should try to enforce this requirement and when they find it disobeyed, they should come heavily upon the police.

5. Right to be examined by a medical practitioner (Section 54) – This section gives the accused a right to get himself examined by a registered medical practitioner. When a person who is arrested, whether on a charge or otherwise, alleges, at the time when he is produced before a Magistrate or at any time during, the period of his detention in custody that the examination of his body will afford evidence which will disprove the commission by him of any offence or which Magistrate shall, if requested by the arrested person so to do direct the examination of’ the body of such person by a registered medical practitioner unless the Magistrate considers that the request is made for the purpose of vexation or delay or for defeating the ends of Justice.

In case of Sheela Barse vs State of Maharashtra, SC held that even in cases were accused does not make any prayer it is duty of the magistrate to inform the arrested person about his right to get himself medically examined in case he has complaints of torture in police custody.

 

6. Right to consult Legal Practitioner – (Section 303)- It is mentioned that any person accused of offence before a Criminal Court or against whom proceedings are instituted under this Code, may have right to be defended by a pleader of his choice.

7. Right to free legal aid – (Section 304) – This section provides that where, in a trial before the Court of Session, the accused is not represented by a pleader, and where appears to the Court that the accused has not sufficient means to engage a pleader, the Court shall assign a pleader for his defence at the expense of the State.

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Cheating: Civil Liability Versus Criminal Liability

The crucial aspect to be noted in the law relating to cheating is the intention of the person accused of cheating. Most often, especially in-issues relating to commercial transactions, the disputes are difficult to separate in terms of their civil and criminal liabilities. As stated earlier, -the crucial difference between a criminal cause of action as against a purely civil transaction is the intention of the-person at the time when the cause of action arose or the alleged offence commenced. The important aspect is to examine whether at that stage, the accused deliberately or intentionally induced the other person to part with property or to do an act or desist from doing an act, or whether it was only subsequently that the dispute arose.

 

Nageshwar Prasad Sinha Vs. Narayan Singh AIR 1999 SC 1480 the respondent- complainant, Narayan Singh, an advocate, had entered into an agreement of sale of certain properties with the accused in Patna city. Part of the consideration had been paid as earnest money. Possession had also been delivered to the complainant as per the sale deed. However, the complainant had not made the full payment as agreed upon, resulting in delay in completing the legal formalities of the sale. The complainant had also filed a civil suit for specific performance against the accused. Thereafter, the complainant filed a criminal complaint alleging committing of offence under section 420 IPC.

 

The Supreme Court considered ill(g) to section 415. IPC and stated that the latter part of the illustration showed that:

At the time when the agreement for sale was executed, it could have in no event been termed dishonest so as to hold that the complainant was cheated of the earnest money, which they passed to the appellants as part consideration, when possession of the total land involved in the bargain was passed over to the complainant-respondent, and which remains in their possession. Now, it is left to imagine who would be interested in delaying the matter and completing the bargain when admittedly the complainant have not performed their part in making full payment.

 

Thus, the court held that the liability, if any, was only civil in nature and not criminal.

 

Breach of contract and cheating: The distinction between mere breach of contract and the offence of cheating is a fine one. It depends upon the intention of the accused at the time of inducement which may be judged by his subsequent conduct, but for which the subsequent conduct is not the sole test. Mere breach of contract cannot give rise to criminal prosecution under Sec. 420, I.P.C., unless fraudulent or dishonest intention is shown right at the beginning of the transaction, that is the time when the offence is said to have been committed.

 

Cheating and extortion :The offence of cheating must, like that of extortion be committed by the wrongful obtaining of a consent. The difference is that the extortioner obtains the consent by intimidation and the cheat by deception.

Cheating, criminal breach of trust, and criminal misappropriation: Cheating differs from the last two offences in the fact that the cheat takes possession of property by deception. There is wrongful gain or loss in both cases and in both cases there is inducement to deliver property. In the case of cheating the dishonest intention starts with the very inception of the transaction. But in the case of criminal breach of trust, the person who comes into possession of movable property receives it legally but retains it. or converts it to his own use against the terms of the contract.

 

COMPARISON WITH ENGLISH LAW:

Dishonestly obtaining another’s property by deception with the intention of permanently depriving that person of his property is an offence under Sec. 15(1) of the Theft Act, 1968. This intent to deprive permanently is not an ingredient of the Indian Law. There is no deception unless a person is induced to believe as true what in fact is false. (An operative cause of obtaining the property). In this case certain person came to an elderly widow representing that they were tree surgeons and that they could provide her the “service for a certain money of felling her three deceased trees. She went to withdraw the money and also informed the police. They were arrested and held guilty of attempted deception.) Director of Public. Prosecution Vs. Ray, (1973) 3 AH ER. 131. Deception can also be in an implied form. The-most common example of which is a bouncing cheque. English Courts have held that when a man issues a cheque in favour of another he impliedly represents that he has an account at the bank, that the cheque would be honoured as he has requisite amount in the bank to his credit or he has an overdraft facility' or will immediately arrange it, so that the cheque does not bounce. If things turn out to be otherwise, the accused will have-cheated the other party by impliedly inducing him to accept a valueless cheque which he would not have accepted if he had been aware of the true state of facts is not free from difficulty on this score as decisions are conflicting and in some cases it has been held that if no express representation is made that he has the requisite amount in the bank or if no allegations are made in the complaint that bouncing of the cheque resulted in harm to the complainant in his body mind, reputation or property, the mere fact that the cheque was dishonoured would not make the accused liable for cheating. A contrary view appears to have been taken in Bholanath Arora case 1982 Cr LJ 1482 (Delhi) which is more in accordance with the views taken in the English decision than with the Indian cases cited above. It is felt that the view taken by the English courts on this point are more reasonable for even a fool would not accept a valueless cheque but for the implied representation that the cheque would be honored. It is hoped that law on this point would be brought a par with that of England if necessarily, by suitable legislation. (Necessary legislation was passed in 1988 by amending the Negotiable Instrument Act by providing that a dishonored cheque is a punishable crime.)

 

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