Supreme Court Weekly Digest With Headnotes + Nominal/Subject Wise And Statute Wise Index [February 6 to12]

Andhra Pradesh (Telangana Area) Abolition of Inams Act, 1955 -

The land dedicated for pious and religious purpose is not immune from its vesting with the State. State of Andhra Pradesh v. A.P. State Wakf Board, 2022 LiveLaw (SC) 136

The Jurisdiction of the Atiyat Court would be limited to the disputes relating to Atiyat grants as defined in the Enquiries Act. State of Andhra Pradesh v. A.P. State Wakf Board, 2022 LiveLaw (SC) 136

Banking Law -

Bank's Liability for acts of employees - Acts of bank/post office employees, when done during their course of employment, are binding on the bank/post office at the instance of the person who is damnified by the fraud and wrongful acts of the officers of the bank/post office. Post office / bank, can and is entitled to proceed against the officers for the loss caused due to the fraud etc., but this would not absolve them from their liability if the employee involved was acting in the course of his employment and duties. Pradeep Kumar v. Post Master General, 2022 LiveLaw (SC) 139

Bank's Liability for acts of employees - What is relevant is whether the crime, in the form of fraud etc., was perpetrated by the servant/employee during the course of his employment. Once this is established, the employer would be liable for the employee's wrongful act, even if they amount to a crime. Whether the fraud is committed during the course of employment would be a question of fact that needs to be determined in the facts and circumstances of the case. Pradeep Kumar v. Post Master General, 2022 LiveLaw (SC) 139

Code of Civil Procedure, 1908 - Order VII Rule 11 - A mere clever drafting would not permit the plaintiff to make the suit maintainable which otherwise would not be maintainable and/or barred by law. It has been consistently held by this Court that if clever drafting of the plaint has created the illusion of a cause of action, the court will nip it in the bud at the earliest so that bogus litigation will end at the earlier stage. Sree Surya Developers and Promoters v. N. Sailesh Prasad, 2022 LiveLaw (SC) 143

Order VII Rule 11 - Order XXIII Rule 3A - At the stage of deciding the application under Order VII Rule 11 CPC, the only thing which was required to be considered is whether the suit would be maintainable or not and that the suit challenging the Compromise Decree would be maintainable or not in view of Order XXIII Rule 3A CPC - Court is not required to consider on merits the validity of the Compromise Decree. Sree Surya Developers and Promoters v. N. Sailesh Prasad, 2022 LiveLaw (SC) 143

Order XIV Rule 2 - If the determination of the issue of limitation is not a pure question of law, it cannot be decided as preliminary issue. Mongia Realty and Buildwell Pvt. Ltd. v. Manik Sethi, 2022 LiveLaw (SC) 148

Order XIV Rule 2 - When issues of both law and facts arise in the same suit, the Court may dispose the suit by trying the issue of law first. For this purpose, the provision specifies two questions of law, which are (i) jurisdiction of the Court; and (ii) a bar to the suit created by any law for the time being in force. Mongia Realty and Buildwell Pvt. Ltd. v. Manik Sethi, 2022 LiveLaw (SC) 148

Order XXIII Rule 3A- A party to a consent decree based on a compromise to challenge the compromise decree on the ground that the decree was not lawful i.e., it was void or voidable has to approach the same court, which recorded the compromise and a separate suit challenging the consent decree has been held to be not maintainable. Sree Surya Developers and Promoters v. N. Sailesh Prasad, 2022 LiveLaw (SC) 143

Code of Criminal Procedure, 1973 -

Section 167(2) Proviso - Default Bail - Filing of a charge-sheet is sufficient compliance with the provisions of Section 167 CrPC - An accused cannot demand release on default bail under Section 167(2) on the ground that cognizance has not been taken before the expiry of 60 days. Serious Fraud Investigation Office v. Rahul Modi, 2022 LiveLaw (SC) 138

Section 167(2) Proviso - Default Bail - There is no additional requirement of cognizance having to be taken within the period prescribed under proviso (a) to Section 167(2), CrPC, failing which the accused would be entitled to default bail, even after filing of the charge-sheet within the statutory period. Serious Fraud Investigation Office v. Rahul Modi, 2022 LiveLaw (SC) 138

Section 167(2) Proviso - The accused continues to be in the custody of the Magistrate till such time cognizance is taken by the court trying the offence, which assumes custody of the accused for the purpose of remand after cognizance is taken. Serious Fraud Investigation Office v. Rahul Modi, 2022 LiveLaw (SC) 138

Section 173 (2) - Evidentiary Value of a Final Report - Final Report, is nothing but a piece of evidence. It forms a mere opinion of the investigating officer on the materials collected by him. He takes note of the offence and thereafter, conducts an investigation to identify the offender, the truth of which can only be decided by the court- The final report itself cannot be termed as a substantive piece of evidence being nothing but a collective opinion of the investigating officer. Rajesh Yadav v. State of U.P., 2022 LiveLaw (SC) 137

Section 354(3) - Death Sentence - The evolution of legal position and norms for dealing with the question of sentencing and the connotations of 'special reasons' for awarding death sentence discussed - Court has found it justified to have capital punishment on the statute to serve as deterrent as also in due response to the society's call for appropriate punishment in appropriate cases but at the same time, the principles of penology have evolved to balance the other obligations of the society, i.e., of preserving the human life, be it of accused, unless termination thereof is inevitable and is to serve the other societal causes and collective conscience of society. This has led to the evolution of 'rarest of rare test' and then, its appropriate operation with reference to 'crime test' and 'criminal test'. The delicate balance expected of the judicial process has also led to another mid-way approach, in curtailing the rights of remission or premature release while awarding imprisonment for life, particularly when dealing with crimes of heinous nature. Pappu v. State of Uttar Pradesh, 2022 LiveLaw (SC) 144

Section 354(3) - Death Sentence - When the accused is not shown to be a person having criminal antecedents and is not a hardened criminal, it cannot be said that there is no probability of him being reformed and rehabilitated - His unblemished jail conduct and having a family of wife, children and aged father would also indicate towards the probability of his reformation. Pappu v. State of Uttar Pradesh, 2022 LiveLaw (SC) 144

Section 482 - Quashing of FIR - Although it is true that it was not open for the Court to embark upon any enquiry as to the reliability or genuineness of the allegations made in the FIR, but at least there has to be some factual supporting material for what has been alleged in the FIR. Shafiya Khan @ Shakuntala Prajapati v. State of U.P., 2022 LiveLaw (SC) 153

Section 482 - Quashing of FIR - Power of quashing of criminal proceedings should be exercised very sparingly and with circumspection and that too in rarest of the rare cases and it was not justified for the Court in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint and that the inherent powers do not confer any arbitrary jurisdiction on the Court to act according to its whims and fancies. Shafiya Khan @ Shakuntala Prajapati v. State of U.P., 2022 LiveLaw (SC) 153

Constitution of India, 1950 -

Article 12 - While exercising its functions on the administrative side, the High Court would also be a State within the meaning of Article 12 of the Constitution of India. Ms. X v. Registrar General, 2022 LiveLaw (SC) 150

Article 14 - Non-consideration of the relevant material and consideration of the extraneous material would come into the realm of irrationality. An action which is arbitrary, irrational and unreasonable would be hit by Article 14 of the Constitution of India. Ms. X v. Registrar General, 2022 LiveLaw (SC) 150

Article 14 - There is a presumption of validity of the State action and the burden is on the person who alleges violation of Article 14 of the Constitution of India to prove the assertion - Where no plausible reason or principle is indicated nor is it discernible and the impugned State action appears to be arbitrary, the initial burden to prove the arbitrariness is discharged, thereby shifting onus on the State to justify its action as fair and reasonable. If the State is unable to produce material to justify its action as fair and reasonable, the burden on the person alleging arbitrariness must be held to be discharged. Ms. X v. Registrar General, 2022 LiveLaw (SC) 150

Article 14 - There is no negative equality - If there has been a benefit or advantage conferred on one or a set of people, without legal basis or justification, that benefit cannot multiply, or be relied upon as a principle of parity or equality. R. Muthukumar v. Chairman and Managing Director Tangedco, 2022 LiveLaw (SC) 140

Article 32, 226 and 14 - Judicial Review - Arbitrariness - The limited scope of judicial review is only to satisfy that the State action is not vitiated by the vice of arbitrariness and no more - It is not for the courts to recast the policy or to substitute it with another which is considered to be more appropriate - The attack on the ground of arbitrariness is successfully repelled by showing that the act which was done, was fair and reasonable in the facts and circumstances of the case. Ms. X v. Registrar General, 2022 LiveLaw (SC) 150

Article 32 and 226 - Judicial Review - The principle of fairness has an important place in the law of judicial review and that unfairness in the purported exercise of power can be such that it is abuse or excess of power. The court should interfere where discretionary power is not exercised reasonably and in good faith. Ms. X v. Registrar General, 2022 LiveLaw (SC) 150

Article 32 and 226 - Judicial Review - The scope of judicial review of a decision of the Full Court of a High Court is extremely narrow and we cannot sit in an appeal over the decision of the Full Court of a High Court. Ms. X v. Registrar General, 2022 LiveLaw (SC) 150

Article 72 and 161 - Code of Criminal Procedure, 1973 - Section 432, 433 and 433A - Indian Penal Code, 1860 - Section 45 and 53 - There can be imposition of life imprisonment without any remission till the last breath as a substitution of death sentence. Ravindra v. Union of India, 2022 LiveLaw (SC) 156

Article 136 - Appeal By Special Leave is not a regular appeal - The Court would not interfere with the concurrent findings of fact based on pure appreciation of evidence nor it is the scope of these appeals that this Court would enter into reappreciation of evidence so as to take a view different than that taken by the Trial Court and approved by the High Court. Pappu v. State of Uttar Pradesh, 2022 LiveLaw (SC) 144

Article 136 - Appeal By Special Leave - In an appeal by special leave, where the Trial Court and the High Court have concurrently returned the findings of fact after appreciation of evidence, each and every finding of fact cannot be contested nor such an appeal could be dealt with as if another forum for reappreciation of evidence - If the assessment by the Trial Court and the High Court could be said to be vitiated by any error of law or procedure or misreading of evidence or in disregard to the norms of judicial process leading to serious prejudice or injustice, the Court may, and in appropriate cases would, interfere in order to prevent grave or serious miscarriage of justice but, such a course is adopted only in rare and exceptional cases of manifest illegality. Pappu v. State of Uttar Pradesh, 2022 LiveLaw (SC) 144

Article 226 - Judicial Review of Disciplinary Proceedings - Limited jurisdiction - The High Court is not required to re-appreciate the evidence and/or interfere with the findings recorded by the inquiry officer accepted by the disciplinary authority. Umesh Kumar Pahwa v. Uttarakhand Gramin Bank, 2022 LiveLaw (SC) 155

Article 226 - The State Government, as a juristic entity, has a right to protect its property through the writ court, just as any individual could have invoked the jurisdiction of the High Court. State of Andhra Pradesh v. A.P. State Wakf Board, 2022 LiveLaw (SC) 136

Criminal Trial - Long adjournments being given after the completion of the chief examination, only helps the defense to win them over at times, with the passage of time - The trial courts shall endeavor to complete the examination of the private witnesses both chief and cross on the same day as far as possible - The trial courts to take up the examination of the private witnesses first, before proceeding with that of the official witnesses. Rajesh Yadav v. State of U.P., 2022 LiveLaw (SC) 137

The approximate time of death before examination, as indicated in the post-mortem report, cannot be applied as something of mathematical precision. Pappu v. State of Uttar Pradesh, 2022 LiveLaw (SC) 144

The evidence of the investigating officer is not indispensable. The evidence is required for corroboration and contradiction of the other material witnesses as he is the one who links and presents them before the court - Even assuming that the investigating officer has not deposed before the court or has not cooperated sufficiently, an accused is not entitled for acquittal solely on that basis, when there are other incriminating evidence available on record. Rajesh Yadav v. State of U.P., 2022 LiveLaw (SC) 137

Doctrine of Legitimate Expectation- Mere reasonable or legitimate expectation of a citizen may not by itself be a distinct enforceable right - The failure to consider and give due weight to it may render the decision arbitrary - The requirement of due consideration of a legitimate expectation forms part of the principle of non­arbitrariness, which is a necessary concomitant of the rule of law. Every legitimate expectation is a relevant factor requiring due consideration in a fair decision making process. Whether the expectation of the claimant is reasonable or legitimate in the context is a question of fact in each case. Whenever the question arises, it is to be determined not according to the claimant's perception but in larger public interest wherein other more important considerations may outweigh, what would otherwise have been the legitimate expectation of the claimant - A bona fide decision of the public authority reached in this manner would satisfy the requirement of non­arbitrariness and withstand judicial scrutiny. Ms. X v. Registrar General, 2022 LiveLaw (SC) 150

Evidence Act, 1872 - A mere non-examination of the witness per se will not vitiate the case of the prosecution. It depends upon the quality and not the quantity of the witnesses and its importance. If the court is satisfied with the explanation given by the prosecution along with the adequacy of the materials sufficient enough to proceed with the trial and convict the accused, there cannot be any prejudice. Similarly, if the court is of the view that the evidence is not screened and could well be produced by the other side in support of its case, no adverse inference can be drawn. Onus is on the part of the party who alleges that a witness has not been produced deliberately to prove it. Rajesh Yadav v. State of U.P., 2022 LiveLaw (SC) 137

Chance Witness - A chance witness is the one who happens to be at the place of occurrence of an offence by chance, and therefore, not as a matter of course. In other words, he is not expected to be in the said place. A person walking on a street witnessing the commission of an offence can be a chance witness. Merely because a witness happens to see an occurrence by chance, his testimony cannot be eschewed though a little more scrutiny may be required at times. This again is an aspect which is to be looked into in a given case by the court. Rajesh Yadav v. State of U.P., 2022 LiveLaw (SC) 137

Classification of Evidence - circumstantial evidence, corroborative evidence, derivative evidence, direct evidence, documentary evidence, hearsay evidence, indirect evidence, oral evidence, original evidence, presumptive evidence, primary evidence, real evidence, secondary evidence, substantive evidence, testimonial evidence, etc. Rajesh Yadav v. State of U.P., 2022 LiveLaw (SC) 137

Definition of "Proved" - The definition of the word "proved" though gives an impression of a mere interpretation, in effect, is the heart and soul of the entire Act. This clause, consciously speaks of proving a fact by considering the "matters before it". The importance is to the degree of probability in proving a fact through the consideration of the matters before the court. What is required for a court to decipher is the existence of a fact and its proof by a degree of probability, through a logical influence. Rajesh Yadav v. State of U.P., 2022 LiveLaw (SC) 137

Evidence Act is an "Adjective Law" highlighting and aiding substantive law- It is neither wholly procedural nor substantive, though trappings of both could be felt. Rajesh Yadav v. State of U.P., 2022 LiveLaw (SC) 137

Hostile Witness - Testimony of a witness turning to depose in favour of the opposite party -A witness may depose in favour of a party in whose favour it is meant to be giving through his chief examination, while later on change his view in favour of the opposite side. Similarly, there would be cases where a witness does not support the case of the party starting from chief examination itself. This classification has to be borne in mind by the Court. With respect to the first category, the Court is not denuded of its power to make an appropriate assessment of the evidence rendered by such a witness. Even a chief examination could be termed as evidence. Such evidence would become complete after the cross examination. Once evidence is completed, the said testimony as a whole is meant for the court to assess and appreciate qua a fact. Therefore, not only the specific part in which a witness has turned hostile but the circumstances under which it happened can also be considered, particularly in a situation where the chief examination was completed and there are circumstances indicating the reasons behind the subsequent statement, which could be deciphered by the court. It is well within the powers of the court to make an assessment, being a matter before it and come to the correct conclusion. Rajesh Yadav v. State of U.P., 2022 LiveLaw (SC) 137

"Matters" - Matters are necessary, concomitant material factors to prove a fact. All evidence would be "matters" but not vice versa. In other words, matters could be termed as a genus of which evidence would be a species. Matters also add strength to the evidence giving adequate ammunition in the Court's sojourn in deciphering the truth. Thus, the definition of "matters" is exhaustive, and therefore, much wider than that of "evidence". However, there is a caveat, as the court is not supposed to consider a matter which acquires the form of an evidence when it is barred in law. Matters are required for a court to believe in the existence of a fact - Matters do give more discretion and flexibility to the court in deciding the existence of a fact. Rajesh Yadav v. State of U.P., 2022 LiveLaw (SC) 137

Related Witness - A related witness cannot be termed as an interested witness per se. One has to see the place of occurrence along with other circumstances. A related witness can also be a natural witness. If an offence is committed within the precincts of the deceased, the presence of his family members cannot be ruled out, as they assume the position of natural witnesses. When their evidence is clear, cogent and withstood the rigor of cross examination, it becomes sterling, not requiring further corroboration. A related witness would become an interested witness, only when he is desirous of implicating the accused in rendering a conviction, on purpose. Rajesh Yadav v. State of U.P., 2022 LiveLaw (SC) 137

The entire enactment is meant to facilitate the court to come to an appropriate conclusion in proving a fact. There are two methods by which the court is expected to come to such a decision. The court can come to a conclusion on the existence of a fact by merely considering the matters before it, in forming an opinion that it does exist. This belief of the court is based upon the assessment of the matters before it. Alternatively, the court can consider the said existence as probable from the perspective of a prudent man who might act on the supposition that it exists. The question as to the choice of the options is best left to the court to decide. The said decision might impinge upon the quality of the matters before it. Rajesh Yadav v. State of U.P., 2022 LiveLaw (SC) 137

When the court is convinced with the quality of the evidence produced, notwithstanding the classification, it becomes the best evidence. Such testimony being natural, adding to the degree of probability, the court has to make reliance upon it in proving a fact. Rajesh Yadav v. State of U.P., 2022 LiveLaw (SC) 137

When the court wants to consider the second part of the definition clause instead of believing the existence of a fact by itself, it is expected to take the role of a prudent man. Such a prudent man has to be understood from the point of view of a common man. Therefore, a judge has to transform into a prudent man and assess the existence of a fact after considering the matters through that lens instead of a judge. It is only after undertaking the said exercise can he resume his role as a judge to proceed further in the case. Rajesh Yadav v. State of U.P., 2022 LiveLaw (SC) 137

While appreciating the evidence as aforesaid along with the matters attached to it, evidence can be divided into three categories broadly namely, (i) wholly reliable, (ii) wholly unreliable and (iii) neither wholly reliable nor wholly unreliable. If evidence, along with matters surrounding it, makes the court believe it is wholly reliable qua an issue, it can decide its existence on a degree of probability. Similar is the case where evidence is not believable. When evidence produced is neither wholly reliable nor wholly unreliable, it might require corroboration, and in such a case, court can also take note of the contradictions available in other matters. Rajesh Yadav v. State of U.P., 2022 LiveLaw (SC) 137

Section 3 - Definition of "Evidence" - Factor or material, lending a degree of probability through a logical inference to the existence of a fact. Rajesh Yadav v. State of U.P., 2022 LiveLaw (SC) 137

Section 33 - Section 33 is an exception to the general rule which mandates adequate facility for cross examining a witness. However, in a case where a witness after the completion of the chief examination and while subjecting him to a substantial and rigorous cross examination, did not choose to get into the witness box on purpose, it is for the court to utilize the said evidence appropriately. The issues over which the evidence is completed could be treated as such by the court and then proceed. Resultantly, the issues for which the cross examination is not over would make the entire examination as inadmissible. Ultimately, it is for the court to decide the aforesaid aspect. Rajesh Yadav v. State of U.P., 2022 LiveLaw (SC) 137

Section 106 - Last Seen Theory - When 'last seen' evidence is cogent and trustworthy which establishes that the deceased was lastly seen alive in the company of the accused; and is coupled with the evidence of discovery of the dead body of deceased at a far away and lonely place on the information furnished by the accused, the burden is on the accused to explain his whereabouts after he was last seen with the deceased and to show if, and when, the deceased parted with his company as also the reason for his knowledge about the location of the dead body. Pappu v. State of Uttar Pradesh, 2022 LiveLaw (SC) 144

General Clauses Act, 1897

 Section 3(22) - Section 3(22) of the General Clauses Act which defines 'good faith' as an act done honestly, whether done negligently or not, is not sufficient to hold that the payment made was 'payment in due course' under the NI Act. Pradeep Kumar v. Post Master General, 2022 LiveLaw (SC) 139

Insurance Law - Theft of Vehicle - Repudiation of Claim - The Insurance Company cannot repudiate claim merely on the ground that there was a delay in intimating the Insurance Company about the occurrence of the theft, when the insured had lodged the FIR immediately after the theft of the vehicle. Jaina Construction Company v. Oriental Insurance Company Ltd., 2022 LiveLaw (SC) 154

Theft of Vehicle - Repudiation of Claim - The vehicle of the complainant (the insured) which was insured with Insurance Company was robbed. The next day, an FIR was registered by him. Accused were arrested and challan filed. Thereafter, the complainant lodged the insurance claim. The same was repudiated on the ground that there was a delay in intimating the Insurance Company about the occurrence of the theft. Though District Forum and State Consumer Commission allowed the complaint- NCDRC dismissed it by allowing insurer's revision petition. Allowing the appeal, the Supreme Court set aside the NCDRC order and upheld the State Commission order. Jaina Construction Company v. Oriental Insurance Company Ltd., 2022 LiveLaw (SC) 154

Land Acquisition Act, 1894 - Section 23(1) - Injurious affection to property, in any other manner, may stand on a different footing from injurious affection to earnings. Walchandnagar Industries Ltd. v. State of Maharashtra, 2022 LiveLaw (SC) 159

Section 23(1) - The six items covered by Section 23(1), which are to be taken into consideration by the court in determining compensation, can be summarized as follows:- (i) The market value of the land on the date of publication of notification under Section 4(1); (ii) The damage to standing crops or trees, which are on the land at the time of the Collector taking possession; (iii) The damage sustained by reason of severing such land from the unacquired land; (iv) The damage sustained by reason of the acquisition injuriously affecting the other property, movable or immovable, in any other manner or the earnings, of the person interested; (v) The reasonable expenses incurred by the person interested, in changing his residence or place of business, when he is compelled to do so in consequence of the acquisition; (vi) The damage bona fide resulting from diminution of the profits of the land between the time of publication of the declaration under Section 6 and the time of the Collector's taking possession. Walchandnagar Industries Ltd. v. State of Maharashtra, 2022 LiveLaw (SC) 159

Section 23(1) - What is injuriously affected at the time of Collector's taking possession of the land, may either be the unacquired portion of the immovable property or other movable property or even the earnings of the person interested. Walchandnagar Industries Ltd. v. State of Maharashtra, 2022 LiveLaw (SC) 159

Section 49 - Distinction between the scope of sub-section (1) and the scope of sub-section (2) of Section 49 discussed. Walchandnagar Industries Ltd. v. State of Maharashtra, 2022 LiveLaw (SC) 159

Law of Precedents - A decision is an authority only for what it actually decides. Every judgment must be read as applicable to the particular facts, proved or assumed to be proved. The generality of the expressions found there, is not intended to be exposition of the whole law, but governed and qualified by the particular facts of the case in which such expressions are to be found. Ms. X v. Registrar General, 2022 LiveLaw (SC) 150

The ratio decidendi is a rule deducible from the application of law to the facts and circumstances of a case and not some conclusion based upon facts which may appear to be similar. - One additional or different fact can make a world of difference between conclusions in two cases even when the same principles are applied in each case to similar facts. Ms. X v. Registrar General, 2022 LiveLaw (SC) 150

Constitution Bench Judgment - Once the majority opines in a particular matter, that is the judgment of the Constitution Bench. Ravindra v. Union of India, 2022 LiveLaw (SC) 156

Motor Vehicles Act, 1988 -

Motor Accident Compensation - Method of determination of compensation applying two multipliers is clearly erroneous - The age of the deceased should be the basis for applying the multiplier. R. Valli v. Tamil Nadu State Transport Corporation Ltd., 2022 Live Law (SC) 152

Negotiable Instruments Act, 1881 -

Section 3 - 'Banker' includes any person acting as a banker and any post office savings bank. In terms of this section, a post office savings bank is a banker under the NI Act. Pradeep Kumar v. Post Master General, 2022 LiveLaw (SC) 139

Section 8 - A holder means a person (i) entitled to possession of a promissory note, bill of exchange or a cheque, and (ii) entitled to sue the maker, acceptor or indorser of the instrument for the recovery of the amount due thereon in his name- The requirements of Section 8 are two-fold, and both requirements have to be satisfied. Pradeep Kumar v. Post Master General, 2022 LiveLaw (SC) 139

Sections 8 and 78 - Payment made to a person in possession of the instrument, but not entitled to receive or recover the amount due thereon in his name, is not a valid discharge. Pradeep Kumar v. Post Master General, 2022 LiveLaw (SC) 139

Section 10 - Definition of 'payment in due course' - Ascertainment of whether the act of payment is in good faith and without negligence is by examination of the circumstances in which payment is made. In other words, antecedent and present circumstances should not afford a reasonable ground for believing that the person to whom payment is made is not entitled to receive payment of the amount mentioned. While it would not be advisable or feasible to strait-jacket the circumstances, albeit value of the instrument, other facts that would raise doubts about the reliability and identity of the person entitled to receive payment and genuineness of the instrument in the payer's mind are relevant considerations. Pradeep Kumar v. Post Master General, 2022 LiveLaw (SC) 139

Section 10 - Definition of 'payment in due course' - The requirement in Section 10 that the payment should be in both good faith and without negligence is cumulative. Thus, mere good faith is not sufficient. Pradeep Kumar v. Post Master General, 2022 LiveLaw (SC) 139

Section 10 - General Clauses Act, 1897- Section 3(22) - Section 3(22) of the General Clauses Act which defines 'good faith' as an act done honestly, whether done negligently or not, is not sufficient to hold that the payment made was 'payment in due course' under the NI Act. Pradeep Kumar v. Post Master General, 2022 LiveLaw (SC) 139

Section 13 - Different principles apply for discharge from liability when the negotiable instrument is payable to bearer or has been indorsed in blank, in which case payment must be made in terms of Section 10, whereas when the negotiable instrument is payable to order, the maker, acceptor or endorser would be discharged from liability when payment is made to the 'holder' of the instrument. Pradeep Kumar v. Post Master General, 2022 LiveLaw (SC) 139

Section 13 - Kisan Vikas Patra Rules, 1988 - Kisan Vikas Patras (KVPs) are negotiable instruments in terms of Section 13 of the NI Act - It cannot be said that the KVPs are simple bearer instruments payable to anyone who presents the same for encashment and discharge. Pradeep Kumar v. Post Master General, 2022 LiveLaw (SC) 139

Sections 15 and 16 - 'Indorsement', 'indorsee', 'indorser' and 'indorsement in blank' and 'in full' - Indorsement for the purpose of negotiation is made by the maker or holder of the negotiable instrument when he signs on the back or face of thereof, on a slip of paper annexed thereto or on a stamp paper for the purpose of negotiation. The person signing is called the indorser. If the instrument is signed by the indorser in his name only, it is an indorsement in blank. If the indorser also specifies the person to whom payment is to be made, the indorsement is said to be 'in full', and the person so specified is called the indorsee. Pradeep Kumar v. Post Master General, 2022 LiveLaw (SC) 139

Sections 131 and 131A - The standard of care expected from a collecting banker does not require him to subject the cheque to a minute and microscopic examination, yet disregarding circumstances about the cheque, which on the face of it gives rise to suspicion, may amount to negligence on the part of the collecting banker. Further, the question of good faith and negligence is to be judged from the standpoint of the true owner towards whom the banker owes no contractual liability but statutory duty by these provisions - Allegations of negligence against the paying banker could provide no defence for the collecting banker who has not collected the amount in good faith and without negligence. Pradeep Kumar v. Post Master General, 2022 LiveLaw (SC) 139

Penal Code, 1860 –

Section 300 and 376 – Rape and Murder - Death Sentence - Abhorrent nature of crime alone cannot be the decisive factor for awarding death sentence - Due consideration to be given to the equally relevant aspect pertaining to mitigating factors before arriving at a conclusion that option of any other punishment than the capital one was foreclosed. Pappu v. State of Uttar Pradesh, 2022 LiveLaw (SC) 144

Section 498A - Allowing prosecution in the absence of clear allegations against relatives of husband would simply result in an abuse of the process of law - If allegations made against them are general and omnibus, they do not warrant prosecution. Kahkashan Kausar @ Sonam v. State of Bihar, 2022 LiveLaw (SC) 141

Section 498A - Concern over the misuse of section 498A IPC - the increased tendency of implicating relatives of the husband in matrimonial disputes, without analysing the long term ramifications of a trial on the complainant as well as the accused. It is further manifest from the said judgments that false implication by way of general omnibus allegations made in the course of matrimonial dispute, if left unchecked would result in misuse of the process of law. Therefore, this court by way of its judgments has warned the courts from proceeding against the relatives and in-laws of the husband when no prima facie case is made out against them. Kahkashan Kausar @ Sonam v. State of Bihar, 2022 LiveLaw (SC) 141

Section 498A - General and omnibus allegations cannot manifest in a situation where the relatives of the complainant's husband are forced to undergo trial. It has been highlighted by this court in varied instances, that a criminal trial leading to an eventual acquittal also inflicts severe scars upon the accused, and such an exercise must therefore be discouraged. Kahkashan Kausar @ Sonam v. State of Bihar, 2022 LiveLaw (SC) 141

Section 498A - Incorporation of section 498A of IPC was aimed at preventing cruelty committed upon a woman by her husband and her in-laws, by facilitating rapid state intervention. However, it is equally true, that in recent times, matrimonial litigation in the country has also increased significantly and there is a greater disaffection and friction surrounding the institution of marriage, now, more than ever. This has resulted in an increased tendency to employ provisions such as 498A IPC as instruments to settle personal scores against the husband and his relatives. Kahkashan Kausar @ Sonam v. State of Bihar, 2022 LiveLaw (SC) 141

Practice and Procedure - In some High Courts, a practice is followed, that whenever a Judicial Officer having good track record tenders his/her resignation, an attempt is made by the Senior Judges of the High Court to counsel and persuade him/her to withdraw the resignation. Valuable time and money is spent on training of a Judicial Officer. Losing a good Judicial Officer without counselling him/her and without giving him/her an opportunity to introspect and re­think, will not be in the interest of either the Judicial Officer or the Judiciary - It will be in the interest of judiciary that such a practice is followed by all the High Courts. Ms. X v. Registrar General, 2022 LiveLaw (SC) 150

Protection of Children From Sexual Offences Act, 2012 - Any act of sexual assault or sexual harassment to the children should be viewed very seriously and all such offences of sexual assault, sexual harassment on the children have to be dealt with in a stringent manner - Cases of sexual assault or sexual harassment on the children are instances of perverse lust for sex where even innocent children are not spared in pursuit of such debased sexual pleasure. Nawabuddin v. State of Uttarakhand, 2022 LiveLaw (SC) 142

No leniency can be shown to an accused who has committed the offences under the POCSO Act, 2012 and particularly when the same is proved by adequate evidence before a court of law - By awarding a suitable punishment commensurate with the act of sexual assault, sexual harassment, a message must be conveyed to the society at large that, if anybody commits any offence under the POCSO Act of sexual assault, sexual harassment or use of children for pornographic purposes they shall be punished suitably and no leniency shall be shown to them. Nawabuddin v. State of Uttarakhand, 2022 LiveLaw (SC) 142

Section 3(b) - Penetrative sexual assault - When it has been established and proved that the accused penetrated his finger in the vagina and because of that the victim girl felt pain and irritation in urination as well as pain on her body and there was redness and swelling around the vagina found by the doctor, the case would fall under Section 3(b) of the POCSO Act. Nawabuddin v. State of Uttarakhand, 2022 LiveLaw (SC) 142

Public Employment -Fairness demands that public bodies, as model employers, do not pursue untenable submissions. In such cases, a concession, which is based on law, and accords to a just interpretation of the concerned law and/or rules, is sustainable. However, it is altogether another thing for a public employer, whose conduct is questioned, and who has succeeded on the merits of the case before the lower forum to voluntarily agree, in an unreasoned manner, to a compromise. The harm and deleterious effect of such conduct is to prioritize the claim of those before the court, when it is apparent that a large body of others, waiting with a similar grievance (and some of whom probably have a better or legitimate claim on merits to be appointed) are not parties to the proceedings. In such cases, a compromise is not only unjustified, it is contrary to law and public interest. R. Muthukumar v. Chairman and Managing Director Tangedco, 2022 LiveLaw (SC) 140

Service Law - Disciplinary Proceedings - The appellant was serving as a Branch Officer of a Bank. A complaint was made against him by one borrower of the Bank alleging that he had sanctioned the limit of loan of Rs.1,50,000/­ which was later on reduced to Rs.75,000/- when the borrower refused to give bribe demanded by him. The disciplinary proceedings were initiated against him. The inquiry officer held that most of the charges were proved. The disciplinary authority/Chairman of the Bank passed an order of removal of the appellant from service. The Appellate Authority dismissed the appeal filed by him. The Uttarakhand High Court also dismissed the writ petition confirming the order of removal from service. Partly allowing the appeal, the Supreme Court held that removal of service can be said to be disproportionate to the charges and misconduct held to be proved. Therefore, the High Court order was modified to the extent substituting the punishment from that of removal of service to that of compulsory retirement. Umesh Kumar Pahwa v. Uttarakhand Gramin Bank, 2022 LiveLaw (SC) 155

Transfer - Normally an order of transfer, which is an incident of service should not be interfered with, unless it is found that the same is mala fide - Mala fide is of two kinds — one 'malice in fact' and the second 'malice in law'. When an order is not based on any factor germane for passing an order of transfer and based on an irrelevant ground, such an order would not be sustainable in law. Ms. X v. Registrar General, 2022 LiveLaw (SC) 150

Transfer Guidelines / Policy of the High Court of Madhya Pradesh - Transfer Policy may not be enforceable in law, but when the Transfer Policy has been framed by the MP High Court for administration of the District Judiciary, every Judicial Officer will have a legitimate expectation that such a Policy should be given due weightage, when the cases of Judicial Officers for transfer are being considered. Ms. X v. Registrar General, 2022 LiveLaw (SC) 150

Wakf Act, 1995 -

The Wakf Board is a statutory authority under the 1954 Act as well as under the 1995 Act. The Official Gazette had to carry any notification at the instance of the Wakf Board. The State Government is not bound by the publication of the notification in the Official Gazette at the instance of the Wakf Board only for the reason that it has been published in the Official Gazette. The publication of a notice in an Official Gazette has a presumption of knowledge to the general public as an advertisement published in a newspaper. Therefore, mere reason that the notification was published in the State Government gazette is not binding on the State Government. State of Andhra Pradesh v. A.P. State Wakf Board, 2022 LiveLaw (SC) 136

Section 32 and 40 - The Wakf Board has power to determine the nature of the property as wakf under Section 32(2)(n) but after complying with the procedure prescribed as contained in Section 40. Such procedure categorically prescribes an inquiry to be conducted. The conduct of inquiry pre-supposes compliance of the principles of natural justice so as to give opportunity of hearing to the affected parties. State of Andhra Pradesh v. A.P. State Wakf Board, 2022 LiveLaw (SC) 136

Section 32 and 40 - The power of the Board to investigate and determine the nature and extent of Wakf is not purely an administrative function- The power to determine under Section 32(2)(n) is the source of power but the manner of exercising that power is contemplated under Section 40 of the 1995 Act. An inquiry is required to be conducted if a Board on the basis of information collected finds that the property in question is a wakf property- There cannot be any unilateral decision without recording any reason that how and why the property is included as a wakf property. The finding of the Wakf Board is final, subject to the right of appeal under sub-section (2). Thus, any decision of the Board is required to be as a reasoned order which could be tested in appeal before the Wakf Tribunal. State of Andhra Pradesh v. A.P. State Wakf Board, 2022 LiveLaw (SC) 136

Section 40(3) Proviso - If a trust or society is already registered but the Board finds it to be Wakf, the statute contemplates notice to the authority. It does not mean that such trust or society is not required to be heard. The hearing to Trust or Society would also be as per the principles of natural justice. State of Andhra Pradesh v. A.P. State Wakf Board, 2022 LiveLaw (SC) 136

Words and Phrases - "Errata" - Scope and meaning of the word "errata" discussed- "Errata" is a term of French origin which means a thing that should be corrected. It means a mistake in printing or writing - Errata is a correction of a mistake. Hence, only arithmetical and clerical mistakes could be corrected and the scope of the notification could not be enlarged by virtue of an errata notification. State of Andhra Pradesh v. A.P. State Wakf Board, 2022 LiveLaw (SC) 136

"Legal malice" or "malice in law" - State is under the obligation to act fairly without ill will or malice — in fact or in law. "Legal malice" or "malice in law" means something done without lawful excuse. It is an act done wrongfully and wilfully without reasonable or probable cause, and not necessarily an act done from ill feeling and spite. Where malice is attributed to the State, it can never be a case of malice or spite on the part of the State. It would mean exercise of statutory power for "purposes foreign to those for which it is in law intended". It means conscious violation of the law to the prejudice of another, a depraved inclination on the part of the authority to disregard the rights of others. Ms. X v. Registrar General, 2022 LiveLaw (SC) 150