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Case Briefs Tribunals/Commissions/Regulatory Bodies

Whether the delay in filing complaints against unregistered sub-brokers, can be condoned? SEBI Special Court answers

Securities and Exchange Board of India (SEBI), Special Court, Maharashtra: In the instant case dealing with unregistered brokerage, Vishal Sadashivrao Gaike, J. deliberated over the issue that whether a delay in filing a complaint against unregistered sub-brokers, can be condoned or not. It was held that, in view of the facts of such cases and seriousness of such allegations (as they are in the instant case), it is in the interest of justice that such a delay be condoned.

Facts:

On 19-06-2001, SEBI received a complaint from a person named J. P. Mittal stating that the accused, Balaji and Co., were dealing in Securities as a sub-broker without obtaining a registration certificate from SEBI and thereby duping its clients by providing fake shares. Consequently, via a letter dated 11-09-2001, the accused was informed about the said complaint and they were directed to seek registration immediately. It was also informed that their failure to do so would result in further violation of the SEBI Act and would subsequently attract penal action. Since there was no reply from the accused,therefore, SEBI filed the present matter under Section 24(1) of the SEBI Act, 1992 against the accused for violation of Section 12 of the SEBI Act. The instant case had been in the pipeline for about 20 years, however owing to the nature of the complaint, SEBI filed the instant application on behalf of the complainant for condonation of delay under Section 473, CrPC.

The accused opposed the present application with two contentions:

(1) There had been a delay of three months and fourteen days i.e., 106 days in filing the complaint.

(2) The schedule of the Economic Offences (Inapplicability of Limitation) Act, 1974 (‘the 1974 Act') does not include the SEBI Act, 1992, hence, the legislative intent to exclude the same is clear. The accused claimed that after cognizance has been taken by the Court, a delay cannot be subsequently condoned. It is also mandatory that before taking cognizance of the offence, the Court has to satisfy itself of the grounds for the extension of time which was not done in the present case. Therefore, the present complaint itself is not maintainable along with the present application which has been filed twenty years after cognizance has been taken.

Analysis and Findings:

The Court heard both sides and placed reliance on a case presented by the complainant, i.e., Sukhdev Raj v. State of Punjab, 1994 Supp (2) SCC 398, In this case, the issue before the Supreme Court was whether the delay in filing the charge sheet can be condoned prior to the conclusion of the trial and particularly before the judgment was delivered. The Supreme Courtheld that, “Section 473, CrPC does not in any clear terms lay down that the application should be filed at the time of filing challan itself. The words ‘so to do in the interest of justice' are wide enough”.

The Court also held that the contention of SEBI, that the SEBI Act 1992 replaced the Capital Issues (Control) Act, 1947, hence the Economic Offences (Inapplicability of Limitation) Act, 1974 applies to the SEBI Act, is unacceptable because the Schedule in the 1974 Act does mention SEBI Act, 1992. When the said Schedule has not been amended by the legislature after the repeal of the Capital Issues Control Act, 1947, then the Courts have no power to read the name of the SEBI Act, 1992 in the same. Thus, a delay has occurred in the filing of the complaint for which SEBI should seek condonation.

The Court observed that the complainant had provided the explanation that SEBI is an autonomous body entrusted with the task of regulating the Securities Market. Before any prosecution is launched, approval of the competent authority is required, and only after the satisfaction of the said authority can a prosecution be launched. The Court noted that the complainant in its application had rightly pointed out that the SEBI Act is a social welfare legislation, and the legislative intent was to promote orderly and healthy growth of the Securities Market and to protect the interest of investors. It has also been observed that while interpreting provisions of a social welfare legislation, the paramount duty of the Court is to adopt such an interpretation so as to further the purpose of law and if possible, eschew the one which frustrates it. Subsequently, the Court accepted the complainant's explanation for the delay in filing the complaint.

Conclusively, the Court held that the delay has been properly explained, and since there are serious allegations against the accused, in the interest of justice it is necessary to condone the delay in filing the present complaint.

[Securities and Exchange Board of India v. Balaji & Co., CNR No. MHCCO2-000792-2015, decided on 02-07-2022]

Advocates who appeared in this case :

Anubha Rastogi, Spl.P.P, Advocate, for the Complainant/ SEBI;

Prashant Trivedi, Advocate, for the Accused.

*Sucheta Sarkar, Editorial Assistant has reported this brief.

Case Briefs High Courts

Whether concurrent prosecutions under S. 138, NI Act and S. 420, IPC, will amount to double jeopardy? J&K and Ladakh HC analyses

Jammu and Kashmir and Ladakh High Court: While deciding the instant petitions, the question that came up before that Court was whether a person can be prosecuted for offence under Section 420 of IPC as also for offence under Section 138 of NI Act, on the same set of facts and whether or not it would amount to double jeopardy. The single Judge Bench of Sanjay Dhar, J., observed that the offences under Section 138, NI act and Section 420, IPC, are two distinct offences, therefore the principle of double jeopardy or rule of estoppel does not come into play.

Relevant Facts of the case: The two clubbed petitions dealt with complaints filed by the respondents under S. 138 of Negotiable Instruments Act, 1881 concerning the sale of a patch of land. In both cases, the petitioners approached the respondents to sell the land and promised to pay damages if the sale did not proceed. In both cases the land could not be cold thereby the respondents became entitled to damages. The petitioners issued cheques drawn on HDFC Bank Branch unit Baghat, Barzulla, bearing the amount that was to be paid as damages; however, the cheques were dishonoured with the endorsement “drawers account closed”.

Contentions: The petitioners submitted before the Court that the respondent, prior to the filing of the complaints under S. 138, NI Act, had filed an FIR for offences under Section 420, 506 IPC, the contents of which are identical to the impugned complaints. The petitioners argued that they cannot be prosecuted twice on the basis of some set of facts as it would amount to double jeopardy. It was also contended that continuance of proceedings in the impugned criminal complaints would be an abuse of process of law and it would amount of forum shopping.

Analysis/ Observations: Perusing the facts and contentions of the matter, the Court referred to Maqbool Hussain v. State of Bombay, 1953 SCR 730, wherein the Constitution Bench of the Supreme Court had dealt with the issue of double jeopardy and held that the fundamental right which is guaranteed under Art. 20(2) of the Constitution enunciates the principle of “double jeopardy” i.e., a person must not be put in peril twice for the same offence. The High Court further referred the case of Sangeetaben Mahendrabhai Patel v. State of Gujarat, (2012) 7 SCC 621.

The High Court observed that offences under Section 138 of the NI Act and Section 420 of IPC are distinct from each other because ingredients of the two offences are different. Examining the distinctions in both the offences, the Court pointed out that- in a prosecution under Section 138, fraudulent or dishonest intention at the time of issuance of cheque need not be proved; but in a prosecution under Section 420, fraudulent or dishonest intention is an important ingredient to be established.
It was further noted that for an offence under Section 138, NI Act, it has to be established that the cheque has been issued by the accused to discharge a legally enforceable debt or liability and the same has been dishonoured for insufficiency of funds etc. and despite receipt of statutory notice of demand, the accused has failed to pay the amount of cheque within the stipulated time. Whereas in Section 420, IPC, it has to be proved by prosecution that at the very inception i.e., at the time of issuance of the cheque by the accused, he had a dishonest intention.

Decision: With the afore-stated analysis, the Court dismissed the petitions and held that merely because the respondent had lodged an FIR under Section 420, IPC containing allegations relating to the same transaction, which is subject matter of the impugned complaints, it does not make out a case of forum shopping or double jeopardy. The Court further held that the respondents are well within their rights to continue prosecution for both these offences under Section 138 of NI Act and Section 420 of IPC simultaneously.

Upon the question of belated filing of the impugned complaints, the Court held that the impugned complaints have been filed by respondents during the period which is covered by the order of the Supreme Court in Cognizance for Extension of Limitation, In re, (2022) 3 SCC 117.

[Fayaz Ahmad Sheikh v. Mushtaq Ahmad Khan, CRM(M) No.280/2021, decided on 15-07-2022]

Advocates who appeared in this case :

Sheikh Hilal, Advocatefor the Petitioner;

Waseem Shamas, Advocate, for the Respondents.

*Sucheta Sarkar, Editorial Assistant has prepared this brief

Case Briefs High Courts

Tel HC | [Default Bail] A complaint/charge sheet filed without complete investigation cannot be used to circumvent the right of statutory bail under S. 167(2) CrPC

Telangana High Court: K Lakshman, J. upheld the petitioner’s appeal against the application of the Directorate of Enforcement (ED) seeking to extend the judicial custody of the petitioner in order to complete the investigation, stating that a complaint filed without complete investigation cannot be used to circumvent the right of statutory bail under Section 167(2) CrPC.

The petitioner is the chairman and managing director of a company against whom a case under Prevention of Money Laundering Act, 2002 was filed by the ED. The petitioner was remanded to judicial custody and has been in jail since 20-01-2022. The petitioner claimed that he is entitled to statutory bail under Section 167(2) Criminal Procedure Code (‘CrPC’), if the investigation is not completed within 60 days of his remand. After the expiry of 60 days of his judicial remand, he filed an application seeking default bail. However, the said application was returned as infructuous by the court stating that the ED had filed a charge sheet before the expiry of 60 days. The ED filed another application asking to extend the judicial custody as the investigation was yet to be completed. The said application was allowed, and the custody of the petitioner was extended. The petitioner challenged this order contending that there was no complaint or charge sheet filed in terms of as investigation was yet to be completed.

The Court noted that creates an obligation on the investigative agencies to complete the investigation in a time bound manner failing which the accused cannot be detained further. This ensures that the investigative authorities work in a swift and time bound manner and the prospect of further remand is not misused. The right to statutory bail accrues on a person if the charge sheet is not filed within the prescribed period of sixty days. To decide on the issue the Court first had to decide whether a complaint or charge sheet was filed or not. The Bombay High Court in Sharadchandra Vinayak Dongre v. State of Maharashtra, 1991 SCCOnline Bom 81 held that by filing incomplete charge sheets, the right of statutory bail under Section 167(2) CrPC cannot be circumvented.

The Court noted that in the present case, an incomplete charge sheet was filed as it was specifically stated that the investigation was not completed yet. The Court relied on 2020 SCC OnLine AP 1436 and observed that an incomplete charge sheet filed without completing the investigation cannot be used to defeat the right of statutory bail under. So, filing of charge-sheet is not the criteria or the actual test to be applied to decide whether the accused is entitled to default bail or not. It has to be noted whether the charge sheet was filed after the investigation was completed or not. In the present case, clearly the investigation was not complete and the period of 60 days had expired.

Thus, in view of the above facts, the Court granted bail to the petitioner under Section 167(2) CrPC.

[C. Parthasarthy v. Director of Enforcement, 2022 SCC OnLine TS 1075, decided on May 17, 2022]

Appearances-

For Petitioner(s): Mr Avinash Desai

For Respondent(s): Mr Namavarapu Rajeshwar Raossgi

Case Briefs Supreme Court

Applications under Section 156 (3) Cr.P.C. being filed only to harass other; Filing of affidavit a must: SC

Supreme Court: In a case where the Magistrate had passed an order under Section 156(3) CrPC even in absence of an affidavit duly sworn by the complainant, the bench of BR Gavai* and Krishna Murari, JJ that many a times the applications under Section 156 (3) of the Cr.P.C. are filed in a routine manner without taking any responsibility only to harass certain persons and hence, such applications are to be supported by affidavits.

The Court held that, prior to the filing of a petition under Section 156 (3) of the Cr.P.C., there have to be applications under Section 154 (1) and 154 (3) of the Cr.P.C. Filing of an affidavit is necessary so that the persons making the application would be conscious and not make false affidavit. With such a requirement, the persons would be deterred from causally invoking authority of the Magistrate, under Section 156 (3) of the Cr.P.C. If the affidavit is found to be false, the person would be liable for prosecution in accordance with law.

Factual Matrix

The Court was deciding a case where the parties entered into various Agreements for Sale with respect to properties situated at Bangalore. It is the case of the appellants that, after receipt of the payments, the respondent was avoiding to get the Sale-deed registered. The respondent, on the other hand, filed a complaint, almost after a period of two years from the date of institution of suits by the appellants, and almost after a period of one and a half year from the date on which written statement was filed by respondent, thereby making allegations of cheating. The allegations in the complaints were basically that the appellant No. 1, who is the son of appellant Nos. 2 and 3, had obtained blank stamp papers from the respondents and created Agreements for Sale by misusing the said blank stamp papers. As such, it is case of the respondents that, the appellants committed forgery and cheated them, and as such they are liable for punishment for offences punishable under Sections 420, 464, 465, 468 and 120-B IPC.

The Magistrate ordered that,

“In the complaint, the complainant has made serious allegations against the accused persons. Therefore, it appears this court that, it is just and proper to refer the matter to the jurisdiction police for investigate and submit report.”

The Karnataka High Court also refused to interfere with the order.

Ruling

The Court held that the Magistrate was required to apply his mind before passing an order under Section 156 (3) of the Cr.P.C. It was further submitted that, unless an application under Section 156 (3) of the Cr.P.C. was supported by an affidavit duly sworn by the complainant, the Magistrate could not have passed an order under the said provision.

When the complaint was not supported by an affidavit, the Magistrate ought not to have entertained the application under Section 156 (3) of the Cr.P.C.

The Court was of the opinion that, though power to quash criminal proceedings should be exercised very sparingly and with circumspection and that too in the rarest of rare cases, there are certain category of cases wherein such power can be exercised for quashing proceedings.

One of such categories laid down in State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335 is,

“Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.”

In the case at hand, since the complaint was filed almost after a period of two years from the date of institution of suits by the appellants, the Court held that continuation of the present proceedings would amount to nothing but an abuse of process of law.

[Babu Venkatesh v. State of Karnataka, 2022 SCC OnLine SC 200, decided on 18.02.2022]

*Judgment by: Justice BR Gavai

Counsels

For Appellants: Advocate Abdul Azeem Kalebudde,

For State: Advocate Shubhranshu Padhi

Case Briefs Supreme Court

Section 138 NI Act| Can’t defeat the complaint merely because it does not elaborate upon Managing Director’s authorisation: SC

Supreme Court: In a case relating to dishonour of cheques where it was alleged that the complaint was filed by the managing director in his personal capacity and not on behalf of the Company, the bench of Sanjay Kishan Kaul* and MM Sundresh, JJ has held that there could be a format where the Company’s name is described first, suing through the Managing Director but there cannot be a fundamental defect merely because the name of the Managing Director is stated first followed by the post held in the Company. It was further held that it would be too technical a view to take to defeat the complaint merely because the body of the complaint does not elaborate upon the authorisation.

Facts

The respondent had issued 8 cheques totalling to Rs.1,60,000/- in favour of Bell Marshall Telesystems Limited, however, all the cheques got dishonoured on account of “funds insufficient” after which legal notices were issued by the beneficiary under Section 138(b) of the Negotiable Instruments Act, 1881. The demand was, however not met within fifteen days of the receipt of the notice nor was any reply sent which resulted in the complaint being filed by the Company’s Managing Director Bhupesh Rathod before the Special Metropolitan Magistrate, Mumbai. The Company also filed an affidavit through its Managing Director, i.e., Bhupesh Rathod, stating that it had authorised to file a complaint case against the respondent. A copy of the Board Resolution was also presented.

The respondent took an objection that the complaint was filed in the personal capacity of Bhupesh Rathod and not on behalf of the Company. On the other hand it was contended by the appellant that the complaint was in the name of the Company and in the cause title of the complaint he had described himself as the Managing Director. The Company was a registered company under the Companies Act, 1956. On this, the respondent contended that it is only in the aforesaid title description that the complainant is described as the Managing Director of the Company but in the body of the complaint it is not so mentioned.

Analysis

The Court took note of the facts that the description of the complainant with its full registered office address is given at the inception itself except that the Managing Director’s name appears first as acting on behalf of the Company. The affidavit and the cross-examination in respect of the same during trial supports the finding that the complaint had been filed by the Managing Director on behalf of the Company.

It, hence, noticed that the format itself cannot be said to be defective though it may not be perfect.

“The body of the complaint need not be required to contain anything more in view of what has been set out at the inception coupled with the copy of the Board Resolution. There is no reason to otherwise annex a copy of the Board Resolution if the complaint was not being filed by the appellant on behalf of the Company.”

It further explained that a Manager or a Managing Director ordinarily by the very nomenclature can be taken to be the person in-charge of the affairs Company for its day-to-day management and within the activity would certainly be calling the act of approaching the court either under civil law or criminal law for setting the trial in motion.

“It would be too technical a view to take to defeat the complaint merely because the body of the complaint does not elaborate upon the authorisation. The artificial person being the Company had to act through a person/official, which logically would include the Chairman or Managing Director. Only the existence of authorisation could be verified.”

The Court considered the governing principles in respect of a corporate entity which seeks to file the complaint, as laid down in Associated Cement Co. Ltd. v. Keshavanand, (1998) 1 SCC 687, and said that,

“If a complaint was made in the name of the Company, it is necessary that a natural person represents such juristic person in the court and the court looks upon the natural person for all practical purposes. It is in this context that observations were made that the body corporate is a de jure complainant while the human being is a de facto complainant to represent the former in the court proceedings. Thus, no Magistrate could insist that the particular person whose statement was taken on oath alone can continue to represent the Company till the end of the proceedings. Not only that, even if there was initially no authority the Company can at any stage rectify that defect by sending a competent person.”

Further, the Court noticed that the signatures on the cheques were not denied. Neither was it explained by way of an alternative story as to why the duly signed cheques were handed over to the Company. There was no plea of any fraud or misrepresentation.

“It does, thus, appear that faced with the aforesaid position, the respondent only sought to take a technical plea arising from the format of the complaint to evade his liability.”

Ruling

The Court held that the complaint was properly instituted and also that the respondent failed to disclose why he did not meet the financial liability arising to a payee, who is a holder of a cheque in due course.

The Court was of the view that the respondent should be sentenced with imprisonment for a term of one year and with fine twice the amount of the cheque, i.e., Rs.3,20,000/-. However, since 15 years have elapsed since the complaint was filed, the Court directed if the respondent pays a further sum of Rs.1,60,000/- to the appellant, then the sentence would stand suspended.

[Bhupesh Rathod v. Dayashankar Prasad Chaurasiya, 2021 SCC OnLine SC 1031, decided on 10.11.2021]

*Judgment by: Justice Sanjay Kishan Kaul

Op Eds OP. ED.

Perjury Proceedings for Hostile Witness—A Need of Hour

1. There is no definition of “perjury” either under the Penal Code, 18601 or for that matter the Criminal Procedure Code, 19732. However, the Supreme Court in Kishorbhai Gandubhai Pethani v. State of Gujarat3 has succinctly elaborated the meaning of perjury in para 9, which reads as under:

9. Perjury is an obstruction of justice. Deliberately making false statements which are material to the case, and that too under oath, amounts to crime of perjury….

The rate of conviction in our country is very minuscule as compared to the offences which are registered. One of the main reasons, for the rate of conviction being low can be attributed to the fact that the witness turns hostile during the trial.

2. The investigation of any offence starts on receipt of complaint regarding commission of an offence. The investigating officer then proceeds to collect evidence in respect of commission of an offence and also records statement/s of the witnesses. Based upon such statements and other materials, a charge-sheet is filed before the court and trial is proceeded. The witnesses who have given their statement under Section 161 CrPC4 are called upon to depose in the court in support of their statements taken during the investigation. Most of the times during the course of cross-examination, the witness disowns his statements, makes contradictions or omissions which compels the prosecutor to declare the said witnesses as hostile.

3. Some of the witness who depose are eyewitness to the crime/offence. Thus, the entire edifice of criminal case falls to the ground if such witness on whose statement the entire evidence is collected turns hostile. Therefore, a seminal question that begs consideration is as to why such witness cannot be prosecuted for perjury and why the investigating agency should not file proceedings under Sections 1915 and 192 of the Penal Code6?If the purity of criminal justice is to be maintained, it is necessary that the courts as also investigating agencies takes up the issue of witness turning hostile seriously. Unless the investigating machinery and courts do not take action against such hostile witnesses and send a message loud and clear that such conduct of witness will be frowned upon by the lodging prosecution, the rate of conviction will not improve and the social order will not be maintained.

4. There is always a subtle distinction between a complaint of giving false evidence before the investigating agency and giving false evidence in the court in view of provisions of Sections 195(1)(b)(i) and (ii) of the Criminal Procedure Code7. The Supreme Court in Bhima Razu Prasad v. State8 has considered the law and has relying upon the judgment of the Supreme Court in Bandekar Bros. (P) Ltd. v. Prasad Vassudev Keni9 has held that the bar under Section 195(1)(b)(i) of the Criminal Procedure Code will not apply to an offence punishable under Section193 of the Penal Code10 which is committed during the stage of investigation and if such prosecution is registered prior to commencement of proceedings and production of such evidence before the trial court. The Supreme Court has specifically held in para 44 of its judgment in Bhima Razu Prasad case11 that just like a private party who has been victim of forgery committed outside the precincts of the court, the investigating officer should not be let remediless against the persons who has produced false evidence. In paras 45 and 46 the Supreme Court has clearly held that investigating agency is best placed to verify and prove such fabrication of evidence and that investigating agency cannot wait for the trial court to take chance to form his opinion.

5. It is pertinent to note that witness turns hostile only during his cross-examination and then the only course available is cognizance of such false evidence only by the court before whom false evidence is given. The court depending upon the impact of the evidence decides to lodge prosecution against such hostile witness. However, such type of action is superlative. In fact, in my opinion, a time has come where the courts trying criminal offence needs to take up bold steps of lodging prosecution to ensure that the witness do not turn hostile whatever the impact of such evidence may be on the outcome of trial. The court can very well prior to the evidence of witness warn him about the consequences of turning hostile as at the times in cases which are based solely upon circumstantial evidence it is necessary that the witness are put to notice that any attempt on their part who turns hostile would invite criminal prosecution.

6. It is also necessary that investigating agency informs witness that they will have to stick to their version made in the statement, else the investigating agency would also lodge prosecution, this would ensure to an extent, the witness sticking up to his statement in the court.

7. As stated by the Supreme Court in Bhima Razu Prasad12 and Bandekar Bros.13 the interest of victim also needs to be protected and therefore, it is necessary that the offence of perjury and giving false evidence is looked upon seriously by both the investigating agency and court.

8. Most of the times a prosecution against a person tendering false evidence is scuttled on a technical plea of bar under Sections 195(1)(b)(i) or (ii) CrPC. However, in view of the law laid down in Bhima Razu Prasad’s case14 more particularly paras 41, 45, 46 and 51, the said bar will not extend to provide protection to a person who has been accused of tendering false evidence during investigative stage. Thus, a hostile witness who gives his statement to the investigating officer during the investigation and on whose statement the chain is completed if he turns hostile in my humble opinion can be prosecuted for tendering false evidence.

9. Only a proactive judiciary can curb the menace of witness turning hostile by taking stern action against such witness who turn hostile or give false evidence. The investigating machinery also needs to ensure that the witness sticks to his statements by forewarning the witness about the consequences of his turning hostile. It is also necessary to implement witness protection programme to prevent the witnesses turning hostile.

* Advocate, Bombay High Court.

1 Penal Code, 1860.

2 Criminal Procedure Code, 1973.

3 (2014) 13 SCC 539, 540.

4 http://www.scconline.com/DocumentLink/NbH2cGQv.

5 http://www.scconline.com/DocumentLink/XLgL0vs9.

6 http://www.scconline.com/DocumentLink/Iw3fvV32.

7 http://www.scconline.com/DocumentLink/0581Rd5L.

8 2021 SCC OnLine SC 210.

9 2020 SCC OnLine SC 707

10 http://www.scconline.com/DocumentLink/TU2r9S13.

11 2021 SCC OnLineSC 210.

12 2021 SCC OnLine SC 210.

132020 SCC OnLine SC 707.

14 2021 SCC OnLine SC 210.

Hot Off The Press News

NHRC issues notice to DMRC on receiving complaint for removal of misleading signages on its 347 new toilets for Transgender Persons

The National Human Rights Commission, India has issued a notice to the Delhi Metro Rail Corporation, DMRC, after taking cognizance of a complaint requesting removal of misleading signages on its 347 new toilets for Transgender Persons.

Allegedly, the name ‘Ubhayalingi’ with a symbolic photo of ‘half-male and half-female’ outside the new 347 Transgender friendly toilets, constructed by the DMRC at metro stations, is not the acceptable term for Transgender persons.

The signage fails to provide a safe space and prevent gender discrimination that the DMRC intended.

The Commission has called for an action taken report from the Director (Works) and the Director (Projects), DRMC, on the grievances raised by the complainant within six weeks.

The complainant has requested the Commission for directions to the DMRC to remove all bilingual signage that mention ‘Ubhayalingi’ immediately and make the following changes:

1. The transliteration of the term ‘Transgender Person’ in Hindi should be used in all signages;

2. The symbol for transgender persons should be ‘T’ instead of the ‘half male-half female symbol;

3. A fresh press release be issued after the change wherein the signage and the statement use ‘Transgender Persons’ instead of Transgender;

4. hat the above changes be followed in all future actions of the DMRC including separate public toilet facilities for Transgender Persons at its upcoming stations in Phase-IV;

5. DMRC should notify a complaint officer for notifying violations of provisions of the Transgender Persons Act.

National Human Rights Commission

[Press Release dt. 17-09-2021]

Case Briefs COVID 19 Tribunals/Commissions/Regulatory Bodies

Complaint of brutal assault on a doctor by a COVID patient’s relatives: NHRC takes suo motu cognizance

National Human Rights Commission, India, after taking cognizance of a complaint about the brutal assault on a doctor by the relatives of a Covid patient at Udali Model Hospital in Hojai district of Assam 01-06-2021 has called for the action taken report from the Chief Secretary and the Director-General of Police, Government of Assam into the alleged incident within four weeks. Besides an enquiry into the allegations, the report is expected to include the needful preventive and punitive action taken in the matter.

The Commission has also sent a copy of the complaint to the Secretary, Union Health & Family Welfare Ministry to initiate necessary measures to ensure the safety and security of the frontline health workers in the country.

According to the complaint, having attached media reports,

the incident happened after the Covid patient had died. Allegedly, some of the frontline medical workers, Doctors, Nurses and Ward boys managed to escape but also got hurt and are deeply traumatized due to this horrific incident.

National Human Rights Commission

[Press Release dt. 4-06-2021]

Case Briefs COVID 19 Tribunals/Commissions/Regulatory Bodies

Complaint filed alleging flouting of Covid appropriate behaviour norms by protesting farmers as potential risk to themselves and others: NHRC issues notice to Delhi, Haryana & UP Governments

The National Human Rights Commission, India has taken cognizance of a complainant that the mass gatherings of protesting farmers, flouting Covid appropriate behaviour, are against the very rules/norms laid down by the Central Government and the advisory of the Commission itself as safeguards against the pandemic. Allegedly, the situation is likely to worsen day by day due to the increased inflow of the farmers at the sites of protests: they are not only putting their lives at risk but also posing a risk, as the potential carriers of the virus, to the others in the rural areas.

Accordingly, the Commission has issued notices to the Chief Secretaries of NCT of Delhi, Haryana and Uttar Pradesh to submit action taken reports regarding the steps taken to control the spread of Covid-19 infection at the protest sites of the farmers. The report is to be submitted within four weeks.

Issuing the notices, the Commission has observed that the country is passing through an unprecedented and scary second wave of Covid-19, which has already claimed more than three lakh human lives and is still raging virulently in different parts of the country.

It has further observed that the Central and State Governments are struggling against all odds to save lives in the face of inadequate health facilities. Measures like lockdowns, containment zones and Covid protocols are employed to somehow overpower the deadly Covid, which is now leading to other serious diseases like black fungus, white fungus etc. In these extraordinary circumstances, our sole aim has to be saving human lives.

The complainant has also stated that more than 300 farmers have died during this ongoing protests due to several reasons including Covid infections. The Cases of black fungus etc are also rising. He has sought intervention of the Commission apprehending that situation may become more worrisome as the farmers, in large numbers, are planning for observing 26th May, 2021 as the Black Day.

National Human Rights Commission

[Press Release dt. 25-05-2021]

National Consumer Disputes Redressal Commission

Case Briefs Tribunals/Commissions/Regulatory Bodies

NCDRC | If a farmer suffers crop loss due to the usage of herbicides bought from a dealer or manufacturer of agri-inputs, can he claim a loss for crop damage? Read Commission’s reasoning

National Consumer Disputes Redressal Commission (NCDRC): Anup K. Thakur (Presiding Member) dismissed the revision petition while upholding the State Commission’s order.

Respondent/Complainant had sown sugarcane. He purchased herbicides from petitioner 1/OP 1. It was submitted that after the usage of the said herbicide the crop started to suffer severe damage.

In view of the above occurrence, Sub Divisional Agriculture Officer was informed, after which inspection of the affected crop was carried out and a report was submitted.

Consumer complaint seeking compensation of Rs 1,60,000 on account of crop damage was filed.

What was District Commission’s decision?

Circular of Deputy Director of Agriculture was not complied with while constituting the inspection team was a mere inadvertence and did not suggest any malafide intention. In any case, it was an irregularity and on this ground, equity and natural justice could not be denied to the complainant. So reasoning, it allowed the complaint to the extent of Rs.72,850/-, this being the loss on account of 235 quintals of sugarcane in one acre land @ Rs.310/- per quintal, with interest of 9% from the date of filing of the complaint.

The above reasoning was upheld by the State Commission.

Analysis and Decision

On perusal of the facts and circumstances of the case, Bench opined that no ground for revision of the State Commission’s order was required.

Bench observed that an internal circular of Deputy Director of Agriculture was circulated regarding the composition of the inspection team for the purpose of smooth functioning of the Department of Agriculture in its subordinate filed offices for fulfilling its role of assisting the farmers, including taking prompt action on any complaint as is in the present matter.

On noting the above, the Commission stated that:

To not have included a representative of the OPs was, at worst, an irregularity.

The fact in the present matter was that there was a crop loss and the complainant farmer did therefore had to suffer loss and the inspecting team found the loss to be largely due to the use of herbicides.

Commission added to its reasoning that the business entities viz. dealers, manufacturers of agri-inputs (seeds, herbicides) carry a special responsibility. They are expected to properly inform the farmer and follow up after sale, to ensure that the farmer has understood and is following all the instructions.

In the present case, dealer ought to not have waited for an invitation to join the inspection team if it was already aware of the complaint through information furnished by the complainant. He should have been proactive rather than reactive.

The same goes for the manufacturers of agri-inputs: their dealers should be properly trained to ensure that they see their job as not merely one selling but as providing after-sale service through regular follow up.

With regard to the revisionary jurisdiction, Bench referred to the decision of the Supreme Court in Rubi (Chandra) Dutta v. United India Insurance Co. Ltd., (2011) 11 SCC 269.

Hence, in view of the above discussion, Bench dismissed the revision petitions. [Adama Agan Ltd. v. Ramesh, 2021 SCC OnLine NCDRC 3, decided on 18-01-2021]

Case Briefs High Courts

P&H HC | After complaint is dismissed in default, Court becomes “functus officio” and Judicial Magistrate has no jurisdiction to recall his order and restore complaint; HC decides

Punjab and Haryana High Court: Arun Kumar Tyagi, J., addressed a petition challenging the impugned order of Judicial Magistrate Ist Class of dismissing the complaint due to non-appearance of the appellant under Section 256 of the Code of Criminal Procedure, 1973.

The appellant had filed a complaint under Section 138 of the Negotiable Instruments Act, 1881 on the grounds that the accused issued a Cheque No.031411 dated 17-04-2013 for Rs 6,50,000 drawn on HDFC Bank, in discharge of subsisting liability under the friendly loan taken by him but the said cheque was dishonoured with remarks ‘Funds Insufficient’ and ‘Account Closed’. While the case was fixed for arguments on the above said application, the appellant absented himself on which the complaint was dismissed for non-prosecution.

The appellant argued that he had been regularly appearing in his complaint case and absented just on one date due to noting down of wrong date of hearing. Hence, dismissal of his complaint and acquittal of the accused was not proper and justified.

The Court observed that prosecution of a private complaint about an offence under section 138 of the N.I. Act differs from the prosecution of private complaint in respect of other offences under other enactments as in case of complaint for an offence under Section 138 of the N.I. Act there is no remedy available to the complainant to file a second complaint when the first complaint is dismissed in default in view of the limitations prescribed and the only remedy available to the complainant is to file a revision or appeal. The Court relied on Steel Strips Ltd. Chandigarh v. Jyoti Mechanical Movements, 2001 SCC OnLine P&H 202, whereby it had been held that “It is imperative upon Magistrate to form his opinion by taking care of the matter as to whether it is appropriate to dismiss the complaint. The real test in such like matters is always good faith.” It was held that for absence of complainant on one occasion, the complaint should not be dismissed unless, the Court is of the opinion that the complainant had been trying to protract the matter to harass the accused deliberately or with ulterior motive and the like.

Noticing that the case was fixed for arguments on application filed by the accused for examination of hand-writing on the cheque, the Court stated that presence of the complainant was not absolute essential for hearing of the arguments and passing of appropriate order on the above-said application. The Court, while setting aside the impugned order held that the order suffered from material illegality since the Magistrate had mechanically passed the order without recording any opinion as to whether personal attendance of the complainant was necessary or could be dispensed with and whether in his absence the case could be further proceeded with. [Vikram Singh v. Naveen Siwatch, 2019 SCC OnLine P&H 5702, decided on 03-12-2019]

Case Briefs High Courts

All HC | Can a complaint filed in light of S. 138 NI Act be dismissed on ground of one day delay? Read Court’s reasoned order

Allahabad High Court: Dr Kaushal Jayendra Thaker, J., held that a complaint made in light of dishonor of cheque filed with a delay of one day cannot be dismissed as one day delay has to be excluded.

The instant application was filed under Section 482 Criminal Procedure Code, 1973 on being aggrieved by an Order passed by Court of Additional Sessions Judge and another order passed by Additional Chief Judicial Magistrate under Section 138 of the Negotiable Instruments Act whereby applicants’ complaint was dismissed on the ground of delay.