Case BriefsHigh Courts

Punjab & Haryana High Court: Surinder Gupta, J. dismissed a petition dealing with the question whether accused under Negotiable Instruments Act, 1881 should be allowed to give his evidence in affidavit similar to that of a complainant.

The petitioner was facing trial in a complaint filed under the provisions of NI Act and sought permission from the trial court to submit his evidence through affidavit but the trial court refused to grant permission for the same while relying on observations in case of Mandvi Cooperative Bank Limited v. Nimesh B Thakore, (2010) 3 SCC 83.

Counsel for the petitioner, R.S. Rai argued that in the case of India Bank Association v. Union of India, (2014) 5 SCC 590 the accused was granted permission to submit his evidence on affidavit with the guideline that accused may submit his affidavit unless there is a justified ground to deny such permission. Further, the counsel argued that the order of trial court relying on observation of Mandvi Cooperative Bank Limited case was not sustainable.

While denying the petition and holding the order of trial court valid, the High Court stated the observation laid down by the Supreme Court in the case of Mandvi Cooperative Bank Limited that there is a basic difference in the nature of evidence of complainant and accused in a case of dishonoured cheque and it is wrong and unjustified to draw analogy between both, the Supreme Court opined that accused may not be able to provide any evidence and if any evidence is provided the nature of it may not be necessarily documentary and the defence will try to lead other kinds of evidences to rebut the presumption that the issuance of cheque was not in the discharge of any debt or liability. The Supreme Court discarded the observation laid down by High Court that Section 145(1) lays down the provision of filing an affidavit by the complainant so it can be assumed that accused can also file a similar affidavit.

Further, the Court opined that in case of Indian Bank Association the Supreme Court was dealing with the issue of setting guidelines/directions to be followed by the courts while trying complaints under Section 138 of the Negotiable Instrument Act that deals with dishonoured cheque and insufficiency in funds.

It was held that the law laid down in the Mandvi Cooperative Bank Limited case had not been dissented. Thus, the decision of the trial court was upheld and the petition was dismissed. [Rajni Dhingra v. Sanjeev Chugh, 2019 SCC OnLine P&H 2464, decided on 05-11-2019]

Case BriefsSupreme Court

Supreme Court: In a major blow to Maharashtra CM Devendra Fadnavis, the 3-judge bench of Ranjan Gogoi, CJ and Deepak Gupta and Aniruddha Bose, JJ has noticed that Fadnavis had knowledge of the two cases against him which had not been mentioned in the affidavit filed by the him along with his nomination papers. The Court, hence, held

“we unhesitatingly arrive at the conclusion that the order of the learned trial Court upheld by the High Court by the impugned judgment and order dated 3rd May, 2018 is legally not tenable and the same deserves to be set aside which we hereby do. The complaint of the appellant will be considered afresh by the learned trial Court from the stage where it was interdicted by the order dated 30.5.2016.”

According to the complainant Satish Ukey, in the affidavit in Form-26, prescribed by the Conduct of Election Rules, 1961 (hereinafter referred to as “the 1961 Rules”), which had accompanied the nomination papers of Fadnavis, details of two cases in which cognizance was taken, have not been mentioned.

Noticing that a contesting candidate is mandated to furnish information concerning the cases in which a Competent Court has taken cognizance along with the cases in which charges have been framed. The Court noticed that a bare perusal of Form-26 makes it abundantly clear that, for offences punishable with imprisonment for two years or more, while entry (5) (i) mandates disclosure of information by the contesting candidate regarding the case(s) that is/are pending against him in which charges have been framed by the Court; entry (5)(ii) mandates disclosure of information by the contesting candidate regarding cases that are pending against him in which cognizance has been taken by the Court. The Court, also said,

“subsequent to the substitution of Form 26 in 2012, the new Form 26 (as in vogue at the time of the elections in 2014), mandates the disclosure of information by the contesting candidate of not only case(s) in which charges have been framed but also case(s) in which cognizance has been taken by the Court”

The Court, hence, held that the information to be furnished under Section 33-A of the Representation of the People Act, 1951 includes not only information mentioned in clauses (i) and (ii) of Section 33-A(1), but also information, that the candidate is required to furnish, under the Act or the Rules made thereunder and such information should be furnished in Form 26, which includes information concerning cases in which a competent Court has taken cognizance (Entry 5(ii) of Form 26). This is apart from and in addition to cases in which charges have been framed for an offence punishable with imprisonment for two years or more or cases in which conviction has been recorded and sentence of imprisonment for a period of one year or more has been imposed.

[Satish Ukey v. Devendra Gangadharrao Fadnavis, 2019 SCC OnLine SC 1275, decided on 01.10.2019]

Case BriefsHigh Courts

Patna High Court: The Division Bench of Amreshwar Pratap Sahi, CJ and Anjana Mishra, J. dismissed an appeal challenging election of a village mukhiya.

Appellant herein had filed an election petition assailing the election of Respondent 3 as mukhiya of a village on the ground of non-disclosure of his assets and liabilities as per the Bihar Panchayat Raj Act, 2006. This petition was dismissed and the writ petition challenging Election Commission’s order was also dismissed. Hence, the present appeal.

Counsel for the appellant contended that nomination paper of Respondent 3 was improperly accepted as he had not filled up details of his assets and liabilities. An affidavit was filed later declaring such assets and liabilities to supplement respondent’s nomination papers but the same was a manipulated document inasmuch as it had been manually stamped while other documents were stamped through a franking machine.

Learned counsel for the respondent objected to the maintainability of election petition for not being verified in accordance with Rule 108 of the Bihar Panchayat Raj Rules, 2006. Further, the sole ground raised in the petition was non-disclosure of assets; no challenge was raised in relation to the affidavit filed by the respondent. The subject affidavit was accepted with the nomination papers before the Assistant Returning Officer who scrutinized the same and thereafter declared Respondent 3’s nomination valid. The nomination could not have been declared to be valid in the absence of requisite declaration and therefore there was a valid presumption under the law regarding the existence of this fact.

The Court observed that the casual manner in which petition had been verified was a serious defect. Argument regarding the non-existence of affidavit could not have been appreciated without a petition being verified on the basis of records available. Further, once the defense of supplemental affidavit had been raised, then the burden lay on the election petitioner to dislodge the same by summoning the Assistant Returning Officer.  It was held that the acceptance of affidavit by the Returning Officer without any objection from the appellant or election petitioner provided a clear presumption of fact regarding the validity of nomination of Respondent 3. Lastly, since the issue regarding stamping of an affidavit was not pleaded or advanced either before the learned Single Judge or the Election Tribunal, therefore it could not be raised at this juncture.

In view of the above, the appeal was dismissed for being bereft of merits.[Ram Roop Devi v. State of Bihar, 2019 SCC OnLine Pat 44, Order dated 11-01-2019]

Case BriefsSupreme Court

Supreme Court: The Bench comprising of CJ Ranjan Gogoi and U.U. Lalit and K.M. Joseph, JJ. while hearing petitions concerning the “Rafale Fighter Jets” asked the  Centre to submit the pricing details for the same within a period of 10 days.

The Bench stated that “strategic and confidential” information need not be shared. Further, the Court in response to Attorney General K.K. Venugopal’s submission regarding “reservations about disclosing the details of pricing of the jets which were not disclosed even in Parliament”, said that “if pricing is something exclusive and you are not sharing it with us, please file an affidavit and say so.”

Further, the bench also stated that “What has been questioned is bonafide of the decision making process and price/cost at which the same is to be procured.”

Therefore, in the present order the bench has stated that further details that could legitimately come in the public domain with regard to the induction of the Indian offset partner (if any) be also furnished to the learned counsels for the parties, as well as ,
the petitioners in person.

In its earlier order Manohar Lal Sharma v. Narendra Damodardas Modi, 2018 SCC OnLine SC 1920:

The Court stated in categorical terms that “information which was sought would not cover the issue of pricing or the question of technical suitability of the equipment for purposes of the requirements of the Indian Air Force.” The requisite information was directed to be placed before the Court in three separate sealed covers on or before 29 October 2018, to be filed with the Secretary General of the Court.

The matter is further listed for 14-11-2018. [Manohar Lal Sharma v. Narendra Damodardas Modi,2018 SCC OnLine SC 2278, Order dated 31-10-2018]

Case BriefsHigh Courts

Jammu & Kashmir: A Single Judge bench comprising of Sanjay Kumar Gupta, J. dismissed a civil writ petition seeking quashing of trial court’s order directing filing of affidavits of witnesses.

Brief factual matrix is that the petitioner is one of the defendants in a suit for partition pending in the lower court wherein she has filed a list of witnesses. Principal District Judge, in the said suit, took cognizance of the said list of witnesses and directed her to file evidence by way of affidavit of the witnesses. This order was challenged by the petitioner contending that the said order is vitiated on account of not following the proper course of law because as a normal course, enforcement of appearance of the witnesses is through summons by the court unless the party citing witnesses can produce them on their own.

The High Court noted that despite a clear direction for conclusion of proceedings within a period of six months, the trial could not be completed because the defendants had failed to tender evidence and disregarded multiple orders passed to that effect by the trial court. It was also noted that the petitioner did not place the contention raised herein before the trial court on all such occasions when the interim orders were passed and as such the present writ petition was a mere dilatory tactic adopted to delay the course of trial.

Relying on the judgment in Rasiklal Manickchand Dhariwal v. M.S.S. Food Products, 2012 (2) SCC 196 it was held that the as per Order XVIII Rule 4 and 5 CPC, the examination-in-chief of a witness has to be tendered by way of affidavit in every case – whether appealable or non-appealable; and on that holding the writ petition was dismissed. [Manorma Sharma v Sahib Saran Khajuria, 2018 SCC OnLine J&K 640, Order dated 14-09-2018]

Case BriefsSupreme Court

Supreme Court: The Bench comprising of Ranjan Gogoi, R. Banumathi and Navin Sinha JJ., expressed it’s wholly unsatisfactory view on the affidavit filed by Centre on 23-07-2018 in regard to appointment of Lokpal.

During the hearing, Attorney General K K Venugopal submitted an affidavit and stated that a meeting of the selection committee was held but the names for the search committee were not finalised.

Advocate Prashant Bhushan, appearing for petitioner NGO Common Cause, said the Centre has not specified the date of the next meeting and they were actually delaying the appointment of a Lokpal despite passage of a law nearly five years ago.

In view of the dissatisfaction shown by the Supreme Court in regard to the affidavit filed, the Attorney General for India asked the Court to indicate the nature of the detailed particulars that are to be considered necessary to be incorporated in the affidavit to be filed. The matter to be listed in 4 weeks. [Common Cause v. Ajay Mittal, 2018 SCC OnLine SC 737, dated 24-07-2018]

Hot Off The PressNews

Supreme Court: The Division Bench comprising of AK Sikri and Ashok Bhushan JJ., expressed its disappointment in regard to non-compliance of its order given in Disabled Rights Group v. Union of India, (2018) 2 SCC 397, decided on 15-12-2017, which talked about disabled-friendly public institutions.

The bench stated that “We have not said anything new in our judgment of 15-12-2017. It was your (Centre) law and we just asked you to comply with it. We are not running the government. It’s you who has to follow the law and order.”

The Apex Court had issued an 11-pointer directive that included making public institutions, transport and educational institutions disabled friendly.

Further, in a fresh petition, the Supreme Court issued notices to the registrar generals of all High Courts and the Secretary-General of the Supreme Court in regard to making judiciary disabled-friendly.

Therefore, the Supreme Court giving due regard to its earlier directions in the above-mentioned case asked Centre to file an affidavit within a period of 4 weeks giving details of the steps taken so far and the timeline for completing the work as had been stated in Disabled Rights Group v. Union of India, (2018) 2 SCC 397.

[Source: PTI]

Case BriefsHigh Courts

Bombay High Court: A Single Judge Bench comprising of Anuja Prabhudessai, J., decided a writ petition, wherein it was held that Section 28 (2) of the Protection of Women from Domestic Violence Act, 2005 allows the court to permit evidence by way of an affidavit in an application under Section 12 of the Act.

A short question arose in the petition; whether in an application under Section 12 of the Act, the applicant could be permitted to file affidavit in evidence? The respondent-wife was married to the petitioner-husband. The matrimonial dispute resulted in filing of a divorce petition by the petitioner. The respondent also filed an application under Section 12 of the DV Act. In the course of proceedings, the petitioner contended that the proceedings under the Act were to be dealt with in the manner prescribed under Section 125 CrPC and therefore, the respondent could not be allowed to file affidavit in evidence. He sought a direction to call the respondent in the witness box to adduce evidence.

The High Court perused the Act as well as various decisions of High Courts and the Supreme Court and observed that a cumulative reading of Section 28(1) read with Rule 6(5) indicates that in deciding the application under Section 12, the Court has to follow the procedure prescribed under Section 126 of CrPC and thus, record evidence in presence of the parties. It is however to be noted that Section 28(2) clearly provides that “Nothing in sub-section (1) shall prevent the Court from laying down its own procedure for disposal of an application under Section 12 or under Section 23(2)”. The opening words of Section 28(2) viz. “Nothing in sub-section (1) shall prevent the Court” clearly indicate that notwithstanding the procedure prescribed in Section 28(1) read with Rule 6(5), the Court is empowered to lay down its own procedure in deciding the application under Section 12 or 23(2) of the DV Act. The DV Act is a beneficial piece of social welfare legislation aimed at providing to the victims of domestic violence speedy relief, which are civil in nature. Having regard to the object and scope of the Act, this provision cannot be given a narrow interpretation which will have an effect of rendering it redundant, surplus or otiose.

Holding that the court in its discretion can allow evidence on affidavit and permit cross-examination to test veracity of the evidence, the petition was dismissed. [Aniket Subhash Tupe v. Piyusha Aniket Tupe, 2018 SCC OnLine Bom 601, decided on 22.3.2018]