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Case Study: Every legal issue can be well supported by latest judgments of Hon’ble Supreme Court & High Courts. These judicial opinions being the judgments of Hon’ble Courts (higher judiciary) becomes the law under the rule of stare decisis. Stare decisis is the legal principle by which judges are obliged to respect the precedents established by prior decisions.
These legal opinions (Judgments) can be referred in litigation and can help to have decision in one’s favor. Below are few land mark judgments of Hon’ble Supreme Court of India:
K.M.Ibrahim vs. K.P.Mohammed, Crl. A. No. 2281 of 2009.
Dishonour of cheque: Compounding of offence after conviction— Section 147 of the negotiable instrument act, does not bar the parties from compounding an offence under section 138 even at the appellate stage of the proceedings. Being a specialstatute, the provisions of section 147 will have an overriding effect over the provisions of the code of criminal procedures relating to compounding of offences. A drawer issued a cheque for an amount of Rs. 95,000/- whichwas dishonoured on account of insufficiency of funds. Trial Court convicted him under Section 138 of the negotiable instrument act and sentenced him to undergo rigorous imprisonment for a period of one year and to pay a fine of Rs. 1,05,000/-. On appeal, the Appellate Courts affirmed his conviction. Before the Supreme Court, at the very initial stage of hearing, a question was raised on behalf of the drawer of the cheque as to whether an offence under Section 138 of the Negotiable Instruments Act, could be compounded under Section 147 of the said Act read with Section 320, Criminal procedure Code. The Supreme Court held that there is no reason to reject the application under Section 147 of the aforesaid Act even in a proceeding under article 136 of the constitution. Since the parties had settled their disputes, in keeping with the spirit of Section 147 of the Act, the Apex Court allowed the parties to compound the offence, set aside the judgment of the Courts below and acquitted the appellant of the charges against him.
National Small Industies Corpn. Vs. H.S.Paintal, Crl. A. No. 320-336 of 2010
Dishonour of cheque: Liability of Directors of a Company. For making Directors liable for the offences committed by the company under Section 141 of the Negotiable Instrument Act, there must be specific averments against the Directors, showing as to how and in what manner the Directors were responsible for the conduct of the business of the company. It is, therefore, not sufficient to make a bald cursory statement in a complaint that the Director is in charge of and responsible to the company for the conduct of the business of the company without anything more as to the role of the Director. But the complaint should spell out as to how and in what manner, the accused was in-charge of or was responsible to the accused company for the conduct of its business. A company may have a number of Directors and to make any or all the Directors as accused in a complaint merely on the basis of a statement that they are in-charge of and responsible for the conduct of the business of the company without anything more is not a sufficient or adequate fulfillment of the requirements under Section 141 of the Act.
K.A.Abbas H.S.A. vs. Sabu Joseph, Crl. A. No. 1052 of 2010
Dishonour of cheque: Default in payment of Compensation. A sentence of imprisonment can be granted for default in payment of compensation under Section 357(3) of the Code of Criminal Procedure. This grant of compensation is sometimes in lieu of sending a person behind bars or in addition to a very light sentence of imprisonment. Hence on default of payment of this compensation, there must be a just recourse. Not imposing a sentence of imprisonment would mean allowing the accused to get away without paying the compensation and imposing another fine would be impractical. While passing an order under Section 357(3), CrPC, it is imperative for the courts to look at the ability and capacity of the accused to pay the same amount, otherwise the very purpose of granting an order of compensation would stand defeated.
G.Someshwar Rao vs. Samineni Nageshwar Rao, Cl. A. No.1353 of 2009
Handwriting Expert: Disputed Cheque/Pronote. The right of an accused under sub-section (2) of Section 243 of the Code of Criminal Procedure is not absolute one. He cannot take recourse thereto for the purpose of delaying the proceedings. In the instant case, the pronote was issued in the year 2002. The cheque was issued in the year 2004. The complaint petition for commission of an offence under section 138 of the Negotiable Instruments Act was filed in the year 2004. The appellant contended that the said pronote as also the cheque were forged and fabricated. He also denied and disputed execution of the said cheque. He filed an application for examination of the said pronote as also the cheque by a handwriting expert. As observed by the Supreme Court, he intended to delay the disposal of the matter. The Court held that he could have examined his own expert. He could still do so for which the Court shall grant him reasonable opportunity.
K.M.Ibrahim vs. K.P.Mohammed, Crl. A. No. 2281 of 2009.
Dishonour of cheque: Compounding of offence after conviction— Section 147 of the negotiable instrument act, does not bar the parties from compounding an offence under section 138 even at the appellate stage of the proceedings. Being a specialstatute, the provisions of section 147 will have an overriding effect over the provisions of the code of criminal procedures relating to compounding of offences. A drawer issued a cheque for an amount of Rs. 95,000/- whichwas dishonoured on account of insufficiency of funds. Trial Court convicted him under Section 138 of the negotiable instrument act and sentenced him to undergo rigorous imprisonment for a period of one year and to pay a fine of Rs. 1,05,000/-. On appeal, the Appellate Courts affirmed his conviction. Before the Supreme Court, at the very initial stage of hearing, a question was raised on behalf of the drawer of the cheque as to whether an offence under Section 138 of the Negotiable Instruments Act, could be compounded under Section 147 of the said Act read with Section 320, Criminal procedure Code. The Supreme Court held that there is no reason to reject the application under Section 147 of the aforesaid Act even in a proceeding under article 136 of the constitution. Since the parties had settled their disputes, in keeping with the spirit of Section 147 of the Act, the Apex Court allowed the parties to compound the offence, set aside the judgment of the Courts below and acquitted the appellant of the charges against him.
National Small Industies Corpn. Vs. H.S.Paintal, Crl. A. No. 320-336 of 2010
Dishonour of cheque: Liability of Directors of a Company. For making Directors liable for the offences committed by the company under Section 141 of the Negotiable Instrument Act, there must be specific averments against the Directors, showing as to how and in what manner the Directors were responsible for the conduct of the business of the company. It is, therefore, not sufficient to make a bald cursory statement in a complaint that the Director is in charge of and responsible to the company for the conduct of the business of the company without anything more as to the role of the Director. But the complaint should spell out as to how and in what manner, the accused was in-charge of or was responsible to the accused company for the conduct of its business. A company may have a number of Directors and to make any or all the Directors as accused in a complaint merely on the basis of a statement that they are in-charge of and responsible for the conduct of the business of the company without anything more is not a sufficient or adequate fulfillment of the requirements under Section 141 of the Act.
K.A.Abbas H.S.A. vs. Sabu Joseph, Crl. A. No. 1052 of 2010
Dishonour of cheque: Default in payment of Compensation. A sentence of imprisonment can be granted for default in payment of compensation under Section 357(3) of the Code of Criminal Procedure. This grant of compensation is sometimes in lieu of sending a person behind bars or in addition to a very light sentence of imprisonment. Hence on default of payment of this compensation, there must be a just recourse. Not imposing a sentence of imprisonment would mean allowing the accused to get away without paying the compensation and imposing another fine would be impractical. While passing an order under Section 357(3), CrPC, it is imperative for the courts to look at the ability and capacity of the accused to pay the same amount, otherwise the very purpose of granting an order of compensation would stand defeated.
G.Someshwar Rao vs. Samineni Nageshwar Rao, Cl. A. No.1353 of 2009
Handwriting Expert: Disputed Cheque/Pronote. The right of an accused under sub-section (2) of Section 243 of the Code of Criminal Procedure is not absolute one. He cannot take recourse thereto for the purpose of delaying the proceedings. In the instant case, the pronote was issued in the year 2002. The cheque was issued in the year 2004. The complaint petition for commission of an offence under section 138 of the Negotiable Instruments Act was filed in the year 2004. The appellant contended that the said pronote as also the cheque were forged and fabricated. He also denied and disputed execution of the said cheque. He filed an application for examination of the said pronote as also the cheque by a handwriting expert. As observed by the Supreme Court, he intended to delay the disposal of the matter. The Court held that he could have examined his own expert. He could still do so for which the Court shall grant him reasonable opportunity.
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