Kerala High Court Weekly Round-Up: October 16 - October 22, 2023

Sasikumar V Ushadevi 2023 LiveLaw (Ker) 567

Sanath Roy v State of Kerala 2023 LiveLaw (Ker) 568

Narayanan v State of Kerala 2023 LiveLaw (Ker) 569

Sathar K.A. v. The Revenue Divisional Officer (RDO) & Ors. Citation: 2023 LiveLaw (Ker) 570

Niyas v. State of Kerala 2023 LiveLaw (Ker) 571

AT v Union of India 2023 LiveLaw (Ker) 573

PKV v AKA 2023 LiveLaw (Ker) 574

Siju K Bhanu v The District Collector & Maintenance Appellate Tribunal & Connected Case 2023 LiveLaw (Ker) 575

Sabu Johny v. State of Kerala & Ors. 2023 LiveLaw (Ker) 576

Thara Philip v. Federal Bank Ltd. & Anr.  2023 LiveLaw (Ker) 577

M/S Punarnava Ayurveda Hospital Pvt Ltd V The Arbitrator For Nh 66 & District Collector 2023 LiveLaw (Ker) 577

Dr. Sajeer v. Reserve Bank of India & Anr. and other connected matters 2023 LiveLaw (Ker) 578

K.T. Sukumaran v State of Kerala 2023 LiveLaw (Ker) 579

Muhammed Shafeek v. M/S Tasty Nut Industries & Ors. 2023 LiveLaw (Ker) 580

S v. D & connected matter 2023 LiveLaw (Ker) 581

Hema Anil v State of Kerala 2023 LiveLaw (Ker) 582

Ayub H.H. v State of Kerala 2023 LiveLaw (Ker) 583

K.R. Mahadevan v. Mattannur Municipality & Ors. 2023 LiveLaw (Ker) 584

Dr. Ciza Thomas v. State of Kerala 2023 LiveLaw (Ker) 585

Venugopalan v The Managing Partner 2023 LiveLaw (Ker) 586

New India Assurance Co. Ltd. v. Shymi & Ors. 2023 LiveLaw (Ker) 587

Jayaprakash A. v. Union Bank of India & Ors. 2023 LiveLaw (Ker) 588

Judgment/Orders this week

S.138 NI Act | Courts Should Grant Compensation To Complainant "Commensurate To Cheque Amount" While Sentencing Accused: Kerala High Court

Case title: Sasikumar V Ushadevi

Citation: 2023 LiveLaw (Ker) 567

The Kerala High Court held that criminal courts while convicting an accused in a proceeding under Section 138 of Negotiable Instruments Act for dishonour of cheque should also consider the importance of compensating the complainant.

Justice C.S. Dias enhanced the fine imposed upon the accused, so as to provide compensation to the complainant under Section 357 of CrPC. The Court stated that the fine imposed under Section 138 of the Act should be proportional to the cheque amount, and it must not exceed twice the cheque amount.

Kerala HC Acquits Hindi Proficient Accused As Disclosure Statement U/S 27 Evidence Act Was Recorded In Malayalam, Translator Not Examined

Case title: Sanath Roy v State of Kerala

Citation: 2023 LiveLaw (Ker) 568

The Kerala High Court has acquitted a Hindi proficient accused, a native of West Bengal who was convicted for robbery and murder, because his disclosure statements were recorded in a language not spoken by him.

The Division Bench comprising Justices P.B.Suresh Kumar and P.G.Ajithkumar observed that disclosure statement has to be recorded in the same language spoken by the accused. It was found that the police made the recovery of material objects with the help of a translator who translated the disclosure statement into Malayalam and the translator was not examined as a witness.

Couple Living Together Under 'Marriage Agreement' Not Husband-Wife, No Prosecution U/S 498A IPC: Kerala High Court

Case title: Narayanan v State of Kerala

Citation: 2023 LiveLaw (Ker) 569

The Kerala High Court has acquitted a man and his family who were convicted under Section 498A IPC for cruelty against a deceased woman on the finding that the parties were living together as husband and wife, based on a marriage agreement and their marriage was not solemnized.

Justice Sophy Thomas observed thus: “In the case on hand, since the marriage between the 1st revision petitioner and deceased Chandrika was not solemnised, and they started living together on the basis of a marriage agreement, which has no legal sanctity in the eye of law, they have to be treated as persons in live-in-relation, and they were not husband and wife, in order to attract an offence punishable under Section 498A of IPC. So, the trial court as well as the appellate court went wrong in finding the revision petitioners guilty under Section 498A of IPC and sentencing them for that offence.”

Kerala High Court Imposes Cost On Revenue Official For Withholding Instructions From Advocate General's Office, Not Complying With Judicial Order

Case Title: Sathar K.A. v. The Revenue Divisional Officer (RDO) & Ors.

Citation: 2023 LiveLaw (Ker) 570

The Kerala High Court has imposed of fine of Rs. 10,000/- on the Revenue Divisional Officer (RDO) for the authority's failure to issue appropriate orders even after the lapse of a year, on an application under the Kerala Land Utilisation Order, 1967, as had been directed by the Court earlier.

Justice Bechu Kurian Thomas emphasized that stern action is warranted in situations where instructions sought for from the office of the Advocate General are not responded to by the officer. It issued strict directions to the RDO to pass appropriate orders on the petitioner's application within 14 days from the date of receipt of copy of the judgment.

Dowry Demand Without Ingredient Of Cruelty Not An Offence U/S 498A IPC: Kerala High Court

Case Title: Niyas v. State of Kerala

Citation: 2023 LiveLaw (Ker) 571

The Kerala High Court held a mere demand for dowry or any property or valuable security without the ingredient of 'cruelty' would not attract the offence under Section 498A IPC. It held that when both elements of demand and cruelty are combined, then liability would be fastened on an accused.

Justice P. Somarajan observed: "A mere skirmish in the ordinary life between the spouses or intermittent quarrel or even a frequent quarrel, unless constitutes the ingredient of 'harassment' for meeting an unlawful demand for property or valuable security or on account of failure to meet such unlawful demand, would not constitute or attract the criminal liability that can be fastened for the offence under Section 498 A IPC. Likewise, a demand for dowry or any property or valuable security without the ingredient of “cruelty” as explained under clause (a) or (b) will not attract the said offence, but a combined effect of both these would bring home the liability under Section 498 A IPC."

Kerala High Court Allows Married Couple To Terminate 24 Weeks' Pregnancy Citing Substantial Foetal Abnormality

Case title: AT v Union of India

Citation:  2023 LiveLaw (Ker) 573

The Kerala High Court has permitted a married couple to medically terminate their 24 weeks' pregnancy on finding ‘substantial foetal abnormality’ and congenital heart disease. Justice Devan Ramachandran Court found that the Medical Board has found Hypoplastic Left Heart Syndrome for the foetus on the Anomaly scan, which was confirmed by Ultrasound Scan and other medical examinations. The Medical Report stated that even if the baby was born alive, it would require multiple palliative procedures and even then the chances of survival were very less.

Wife Not Knowing Cooking, Seeking Assistance Of Husband's Employer To Patch Up Strained Marriage Not 'Cruelty': Kerala High Court

Case name: PKV v AKA

Citation: 2023 LiveLaw (Ker) 574

The Kerala High Court has held that wife seeking the help of her husband's employer for patching up their broken marital relationship and to bring him back to normal life after finding out his issues, or her not knowing cooking cannot be grounds sufficient to constitute 'cruelty'.

Relying upon the decision in Uthara v. Sivapriyan (2022), the Court observed, "...legally, one party cannot unilaterally decide to walk out of a marriage, when sufficient grounds are not there justifying a divorce, under the law which governs them, saying that due to non-co-habitation for a considerable long period, their marriage is dead practically and emotionally. No one can be permitted to take an incentive out of his own faulty actions or inactions".

“Till Death Do Us Apart”, Kerala High Court Reunites 80 Yr-Old Woman With 92 Yr-Old Husband, Son Cannot Keep Them Apart

Case title: Siju K Bhanu v The District Collector & Maintenance Appellate Tribunal & Connected Case

Citation: 2023 LiveLaw (Ker) 575

The Kerala High Court came to the rescue of an ailing nonagenarian senior citizen who was suffering from dementia and was kept away from his wife by their son.

Justice Devan Ramachandran observed that the wife of a senior citizen has absolute and inviolable right to have the custody and company of her husband during the winter years of their lives. It held that the son has no right to keep his parents away from each other. Court stated: “Even being dementia afflicted and his memories fading, the senior citizen clearly finds solace with his wife – as the Social Justice Officer puts it in his report, “they shared good moments”. He must never be denied this, whatever Sri.Siju K.Bhanu may say in justification. The right of Smt.Kameela – the wife of the senior citizen – for his custody and consortium is inviolable and absolute. Her son, Sri.Siju K.Bhanu can never deny this.”

Kerala Abkari Act | Rented Vehicle Put To Illegal Use Without Owner's Knowledge Or Active Involvement Ought To Not Be Confiscated: High Court

Case Title: Sabu Johny v. State of Kerala & Ors.

Citation: 2023 LiveLaw (Ker) 576

The Kerala High Court laid down that a vehicle which was taken on rental basis, and which was subsequently put to use for illegal purposes, cannot be confiscated when the registered owner of the vehicle had no knowledge of the offence, nor had any active involvement in such Act.

"For a vehicle to be confiscated, it ought to have been established that the owner of the vehicle has prior knowledge or in the alternative, he is a party to the offence, which connotes his active involvement. Once it is indicated from the materials furnished by the writ petitioner (registered owner of the vehicle) that the owner of the vehicle is devoid of any knowledge or that he has connived with the persons who actually were evidenced as illegally transporting any contraband for the sole reason that the vehicle is involved in the offence, he cannot be penalised by ordering to confiscate his vehicle," Justice Mary Joseph observed.

SARFAESI Act | Whether Mortgaged Property Is Agricultural Land To Be Decided By DRT, Can't Invoke Writ Jurisdiction: Kerala High Court

Case Title: Thara Philip v. Federal Bank Ltd. & Anr.

Citation: 2023 LiveLaw (Ker) 577

The Kerala High Court dismissed challenge to recovery proceedings initiated under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act) qua certain parcels of land which the petitioner claimed to be agricultural lands and thus protected under Section 31 (i) of the statute. It states that the provisions of the SARFAESI Act shall not apply to any security interest created in agricultural land.

Dismissing the writ petition filed under Article 226 of the Constitution in limine, the Single Judge Bench of Justice K. Babu was of the considered opinion that the SARFAESI Act is a complete code providing effective and efficacious remedy to any person aggrieved by the proceedings initiated under Section 13, and the present plea was thus not maintainable.

Arbitration Act | Arbitrator Can't Appoint Advocate Commissioner U/S 26, 27: Kerala High Court

Case title: M/S Punarnava Ayurveda Hospital Pvt Ltd V The Arbitrator For Nh 66 & District Collector

Citation: 2023 LiveLaw (Ker) 577

The Kerala High Court held that an arbitrator is not authorised to appoint an Advocate Commissioner under Section 26 or 27 of the Arbitration Act to conduct inspections in land acquisition disputes.

Justice Murali Purushothaman added that the extent of judicial intervention in arbitration proceedings was limited, with parties generally having to wait for the arbitration award or follow the appeal process specified in the law.

'Why Freeze Entire Bank Account Of Traders Just Because Unknown Cyber Criminals Paid Them Through UPI?' Kerala High Court

Case Title: Dr. Sajeer v. Reserve Bank of India & Anr. and other connected matters

Citation: 2023 LiveLaw (Ker) 578

The Kerala High Court directed Banks to limit the freezing orders issued in respect of persons into whose accounts amounts had been transferred via UPI platform as part of a cyber financial crime, to the amount involved in the crime as mentioned in the order/requisition issued by the Police Authorities.

Justice Devan Ramachandran could not fathom why the entire bank accounts of the petitioners had to be frozen when the requisitions mention the exact amount suspected to have been credited to their accounts.

Magistrate Has Statutory Duty To Pass Speaking Order U/S 311A CrPC For Collection Of Specimen Signature/ Handwriting: Kerala High Court

Case title: K.T. Sukumaran v State of Kerala

Citation: 2023 LiveLaw (Ker) 579

The Kerala High Court stated that a Magistrate has statutory duty to pass a speaking order under Section 311A of CrPC for collection of specimen signatures or handwriting of a person in connection with a criminal case.

Bench of Justice P.V. Kunhikrishnan on examining the provision added that the Magistrate should be at least prima facie convinced that, such an action would not prejudice the interest of the accused in the facts and circumstances of that case. The court held that a speaking order is essential to ensure that no prejudice is caused to the accused. It also stated that the Magistrate has a statutory duty to pass a speaking order for ensuring that Article 20 (3) of the Constitution is not violated which states that no person can be compelled to be a witness against himself.

Limitation Act Applies To Commercial Disputes But Delay Can Be Condoned Only In Exceptional Cases: Kerala High Court

Case Title: Muhammed Shafeek v. M/S Tasty Nut Industries & Ors.

Citation: 2023 LiveLaw (Ker) 580

The Kerala High Court condoned a delay of 25 days in filing an appeal under the Commercial Courts Act, 2015, on the ground that such delay had not resulted in any loss on the part of the opposite party.

Justice Anil K. Narendran and Justice Sophy Thomas though took note of the intent of the statute to have speedy disposal of commercial disputes, cited Government of Maharashtra (Water Resources Department) represented by Executive Engineer v. Borse Brothers Engineers and Contractors Private Limited (2021) where the Supreme Court held that delay in appeals filed under Arbitration Act and Commercial Courts Act can be condoned "by way of exception".

Can't Grant Judicial Separation As An Alternate Relief If Grounds For Divorce U/S 13 Hindu Marriage Act Not Proven: Kerala High Court

Case Title: S v. D & connected matter

Citation: 2023 LiveLaw (Ker) 581

The Kerala High Court held that if the grounds for divorce under Section 13 of the Hindu Marriage Act are not proven, the same grounds cannot be used for granting judicial separation as an alternate relief under Section 13-A.

Relying on the decision in Snigdha Chaya Devi v. Akhil Chandra Sarma (1992), the Division Bench comprising Justice Anil K. Narendran and Justice Sophy Thomas observed: "When the grounds for judicial separation under Section 13-A of the Hindu Marriage Act are the same as that for divorce, under Section 13 (founded on grounds other than excluded) and when the grounds for divorce under Section 13 of the Hindu Marriage Act are not made out, there cannot be a decree for judicial separation as an alternate relief. If the grounds, on which the petition for divorce was founded, were not made out, then the alternate relief of judicial separation also cannot be granted."

Paddy Land Act | Can't Dig Wells On Paddy Land For Commercial Purposes: Kerala High Court

Case title: Hema Anil v State of Kerala

Citation: 2023 LiveLaw (Ker) 582

The Kerala High Court held that digging a well on a paddy land for commercial purposes, such as extracting groundwater for manufacturing packaged drinking water, is not related to paddy cultivation and would thus be violative of the Kerala Conservation of Paddy Land and Wetland Act, 2008.

Justice Bechu Kurian Thomas added that if water was drawn out from paddy lands for commercial purposes, then the original water level could not be maintained, thereby causing reclamation under Section 2(xv) of the Act (irreversible conversion of the paddy land).

Citizens Cannot Be Prosecuted For Defamation U/S 499, 500 IPC For Criticizing A Product/ Service On Facebook: Kerala High Court

Case title: Ayub H.H. v State of Kerala

Citation: 2023 LiveLaw (Ker) 583

The Kerala High Court reiterated that Section 499 of IPC makes defamation against individuals as a punishable offence under Section 500 of IPC and not against criticism of any product or service. The Court noted that the provision deals with harm to reputation caused to any person and not product.

Justice N. Nagaresh observed that criticism of a product or service cannot be considered to be imputation of reputation to be punishable as defamatory under Section 499 and 500 of IPC. Court stated: “ The statements of the witnesses would show that the content of the Facebook post is regarding the product of the Firm of the petitioner. The 2nd respondent has criticized the product. Criticism of any product/service made by a citizen cannot be treated as defamatory though such criticism may not be of the liking of the manufacturers/producers.”

Children Participating In 'Vidyarambham' Can't Be Forced To Write Or Recite Prayer Contrary To Their Parent’s Belief: Kerala High Court

Case Name: K.R. Mahadevan v. Mattannur Municipality & Ors.

Citation:  2023 LiveLaw (Ker) 584

The Kerala High Court stated that parents would have the right to choose the first words to be written or recited by their children during Vidyarambham ceremony.

Justice Devan Ramachandran observed that the programmed is for initiation of knowledge and children cannot be forced to write or recite any prayer contrary to their parent’s choice.

Kerala High Court Quashes Show Cause Notice Issued To KTU's Former VC Ciza Thomas

Case Title: Dr. Ciza Thomas v. State of Kerala

Citation: 2023 LiveLaw (Ker) 585

The Kerala High Court quashed the show cause notice issued to Dr. Ciza Thomas, who was temporarily appointed as the Vice Chancellor of the APJ Abdul Kalam Techological University.

A show cause notice had been issued to Thomas as a prelude to the initiation of disciplinary proceedings against her by the State Government, on the ground that she had violated Rule 48 of Government Servants Conduct Rules, 1960 (restriction on Government servants from being engaged directly or indirectly in any trade, business, or employment).

Perusing Rule 48 of the Rules, 1960, the Division Bench comprising Justice A. Muhamed Mustaque and Justice Shoba Annamma Eapen observed that the provision only prevents a Government employee directly or indirectly engaging in any trade or business or from undertaking any new employment, while he is continuing to be a Government servant. The show-cause notice issued to Thomas was thus quashed.

[Employees Compensation Act] Employee Entitled To Interest On Medical Reimbursement From Date Of Claim U/S 4A: Kerala High Court

Case title: Venugopalan v The Managing Partner

Citation: 2023 LiveLaw (Ker) 586

The Kerala High Court stated that an employee is entitled to claim interest on medical reimbursement under Section 4A of the Employees Compensation Act, 1923 from the date of making claim before the Compensation Commissioner and not from the date of the accident.

Justice Basant Balaji observed thus: “Therefore, I am of the considered opinion that the Commissioner has failed to award interest as stipulated in Section 4A of the Act. Since the accident happened on 18.09.2011, and the claim was made only in 2016, the appellant is entitled to claim interest from the respondents only from the date he made the claim before the Employees Compensation Commissioner. The delay in not filing the claim from 2011 to 2016 is on the applicant himself. Therefore, the payment of interest for the said period cannot be mulcted on the respondent.”

Men Also Crumble, Look For Child's Support: Kerala High Court Holds Father As Son's Dependent For Determining Compensation Under MV Act

Case Name: New India Assurance Co. Ltd. v. Shymi & Ors.

Citation: 2023 LiveLaw (Ker) 587

The Kerala High Court laid down that a father could also be treated as 'dependent' on his son to determine the personal expenses of the deceased son, while computing the compensation to be awarded under the Motor Vehicles Act.

Justice Ziyad Rahman A.A. noted that while the dependancy of the father upon his son after the latter's wedding would be limited, that by itself would not disentitle the father from being treated as one of the dependants of the deceased in order to determine the deductions to be made towards personal expenses. Court observed: "This is because, when the years pass, and advanced age weakens the earning capacity of the father, or various ailments, age-related or other, start affecting the mental and physical ability of the father, the son is supposed to or expected to come forward and support him. Such support from the son is something which a father can reasonably look forward to,"

MSMED Act Does Not Prevail Over SARFAESI Act In Recovery Of Secured Assets: Kerala High Court

Case Title: Jayaprakash A. v. Union Bank of India & Ors.

Citation: 2023 LiveLaw (Ker) 588

The Kerala High Court held that provisions of the Micro, Small and Medium Enterprises Development Act, 2006 (‘MSMED Act') would not prevail over those of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 ('SARFAESI Act') with respect to recovery of secured assets.

It thus went on to state when any person is aggrieved by the course for recovery adopted by the secured creditor under Section 13 of the SARFAESI Act, which provides for 'Enforcement of Security Interest', they could approach the Tribunal constituted under the enactment, against the same, regardless of the aggrieved person being a proprietor of an enterprise registered under the MSMED Act.

Noting that Section 17 of SARFAESI Act ('Application against measures to recover secured debts') is a 'complete code' providing remedies to any person aggrieved by the measures taken by the secured creditor, Justice K. Babu observed:

"By virtue of Section 17 of the SARFAESI Act, the Tribunal is clothed with a wide range of powers to interfere with any illegality. The Tribunal has the power to consider whether the measures referred to in Section 13 resorted to by the secured creditors for the enforcement of the security interests are in accordance with the provisions of the Act and the Rules made thereunder. It has the power to restore management or reservation of the possession of the secured assets of the borrower or any person aggrieved. The Tribunal has the jurisdiction to examine the claims of the tenancy or leasehold rights upon the leasehold assets".

Other Significant Developments This Week

'‘No Other High Courts Have This’': DAKSH's Panel Discussion On 'Technological Transformation of Kerala High Court

Bengaluru-based think tank and research institution launched its seminal case study on 'Technological Transformation of Kerala High Court' on October 19, 2023, at the High Court Auditorium. The study shed light on how the Kerala High Court embraced technology to modernize its justice delivery platform and keep abreast with the changing times. DAKSH's study focused on how the Kerala High Court had been instrumental in utilizing technology in three phases, namely, E-Filing, Scrutiny, and Paperless Courts. The researchers also shed light on how the Case Management System (CMS) adopted by the High Court had become an efficient alternative to the Case Information System (CIS) that had been launched by the National Informatics Centre (NIC).

The discussion was led by the Panel comprising Kerala High Court Judges, Justice A. Muhamed Mustaque and Justice Raja Vijayaraghavan V.; Dean Development and Professor of Kerala Digital University Dr. Asharaf S., and Advocate Santhosh Mathew. The Research Director of DAKSH, Surya Prakash S. was the moderator for the event.

Centre Notifies Appointments Of 3 Judicial Officers As Additional Judges Of Kerala High Court

The Central Government has notified the appointment of three judicial officers as additiional judges of the Kerala High Court. They are : Johnshon John, Gopinathan U Girish, and C. Pratheepkumar.

Kerala High Court Stays Operation Of State Child Rights Commission’s Order Banning Tuition Classes At Night

Case title: Sujesh G.K. v State of Kerala

A plea has been moved before the Kerala High Court challenging an order passed by the State Commission for Protection Of Child Rights banning recreational trips and night tuition classes conducted by tuition centers.

Justice T.R.Ravi issued notice to the respondents and directed that there will be an interim stay on the order passed by the State Child Rights Commission on the banning of tuition classes at night. Court observed: “There will be an interim stay of operation of Ext.P1 in so far it relates to the conduct of tuition during the night.”

Kerala High Court Warns Of Strict Action If Police Officers Fail To Provide Instructions In Criminal Trials

Case Title: Rajesh R. & Ors. v. State of Kerala & Ors

The Kerala High Court has directed the State Police Chief to ensure there is no impediment faced by Public Prosecutors in getting instructions from police Stations.

Justice P.V. Kunhikrishnan was of the considered opinion that such a scenario creates a 'serious problem of piling up of cases'. It directed the State Police Chief to issue necessary directions to all the Police Stations in the State to submit reports called from the office of the Public Prosecutor immediately.

Kerala High Court Introduces Measures To Strengthen Security Within Its Premises

The Kerala High Court has imposed certain measures to strengthen the security arrangements within its premises in light of a few recent incidents of security breaches. The new protocol mandates all High Court Staff members, to wear their Identity Cards conspicuously while entering the premises of the Court. Advocates, not in their robes, are required to show their ID Cards at the entry points for identification, while verification of persons donning the Advocates' robes shall be done only in suspicious circumstances. Advocate Clerks' too are required to wear Identity Cards, on entering the High Court building.

It unequivocally stipulates that persons bringing weapons or such potentially hazardous objects shall be denied entry into the High Court building and that such articles shall be seized and reported to the local police or returned, depending on the nature of the object attempted to be brought in.

Rectify Or Face Action: Kerala High Court Warns PWD, Panchayat After 51-Yr-Old Complains Of Water Logging Due To Culvert Constructed By Them

Case Title: Syama M. v. State of Kerala & Ors.

The Kerala High Court has warned of action against the Public Works Department (PWD), and the Panchayat, in case of any defect in rectifying the issue of water-logging of a private property, due to the construction of a culvert in an unscientific manner near the said property by the authorities.

Justice Devan Ramachandran took note of the Senior Government Pleader's submission that rectificatory steps had been taken to ensure no water-logging in the petitioner's house, which was being done in conjunction with the Panchayat, since the culvert constructed as well as drain blocked by the authority would have to be reconstructed or repaired.