LAW OFFICE ONLINE

Central Government Health Scheme (CGHS) -- Claim for reimbursement – Whether claim can be rejected as the Superspeciality hospital is not included in the Government Order – Held: The right to medical claim cannot be denied merely because the name of the hospital is not included in the Government Order.

Negotiable Instruments Act, 1881; S. 138 ------ Compounding the offence under Section 138 of the Negotiable Instruments Act, 1881 (the Act) on payment of the cheque amount and in the alternative for exemption from personal appearance ----- Held that where the cheque amount with interest and cost as assessed by the Court is paid by a specified date, the Court is entitled to close the proceedings in exercise of its powers under Section 143 of the Act read with Section 258 Cr.P.C.

Negotiable Instruments Act, 1881; S. 138 ------ Service of summons ----- Mode of ----- The service of summons can be by post/e-mail/courier and ought to be properly monitored (Para 16).

Negotiable Instruments Act, 1881; S. 138 ------ Implementation of technology ----- Use of modern technology needs to be considered not only for paperless courts but also to reduce overcrowding of courts ----- There appears to be need to consider categories of cases which can be partly or entirely concluded “online” without physical presence of the parties by simplifying procedures where seriously disputed questions are not required to be adjudicated. Traffic challans may perhaps be one such category ----- Atleast some number of Section 138 cases can be decided online ----- If complaint with affidavits and documents can be filed online, process issued online and accused pays the specified amount online, it may obviate the need for personal appearance of the complainant or the accused ----- Only if the accused contests, need for appearance of parties may arise which may be through counsel and wherever viable, video conferencing can be used ----- Personal appearances can be dispensed with on suitable self operating conditions. (Para 17)

Land Encroachment Act, 1905; S. 6, 7 – Evidence Act, 1872; S. 90, 110 – Presumption of title as a result of possession, can arise only where facts disclose that no title vests in any party -
- Possession of the plaintiff is not prima facie wrongful, and title of the plaintiff is not proved -- It certainly does not mean that because a man has title over some land, he is necessarily in possession of it -- if at any time a man with title was in possession of the said property, the law allows the presumption that such possession was in continuation of the title vested in him -- person must establish that he has continued possession of the suit property -- other side claiming title, must make out a case of trespass/ encroachment etc -- mere acceptance of municipal tax or agricultural tax by a person, cannot stop the State from challenging ownership of the land -- Nor can such a presumption arise in case of grant of loan by a bank upon it hypothecating the property -- revenue records confer title, for the reason that they merely show possession of a person -- Held: A revenue record is not a document of title -- It merely raises a presumption in regard to possession

Consumer Protection Act, 1986; Rejection of Insurance claim – Insurance by home loan borrower – On 29.09.2008 premium was deducted from loan account towards Insurance company -- Proposal form dated 29.09.2008 was accompanied by good health declaration by the insured – Insured person died on 17.12.2009 – Neither the bank nor the insurance company had ever informed the proposer or the appellant herein about the non-issuance of policy for want of medical certificate -- in the case of joint housing loan the full loan amount will be insured even if the policy is issued in the name of only one loanee -- Claim to pay the outstanding loan amount rejected – State Commission allowed the claim – National Commission set aside the order of State Commission – Supreme Court upheld the observation of State Commission.

Limitation Act, 1963; S. 27— Limitation Act, 1963; Art. 65 and 66 -- Adverse Possession -- It is a settled principle of law of adverse possession that the person, who claims title over the property on the strength of adverse possession and thereby wants the Court to divest the true owner of his ownership rights over such property, is required to prove his case only against the true owner of the property -- It is equally well-settled that such person must necessarily first admit the ownership of the true owner over the property to the knowledge of the true owner and secondly, the true owner has to be made a party to the suit to enable the Court to decide the plea of adverse possession between the two rival claimants.

Evidence Act, 1972 – Appreciation of Evidence – Behaviour of witnesses – Held: the reactions of these witnesses in running away from the site of occurrence appears to be a natural human reaction under the facts and circumstances of the case. Behaviour of the witnesses or their reactions would differ from situation to situation and individual to individual. Expecting uniformity in their reactions would be unrealistic, and no hard and fast rule can be laid down as to the uniformity of the human reaction. The evidence of the three eyewitnesses cannot be faulted merely because they ran away;

Maxim -- Falsus In Uno, Falsus In Omnibus -- (false in one thing, false in everything) is not being used in India. Virtually, it is not applicable to the Indian scenario. Hence, the said maxim is treated as neither a sound rule of law nor a rule of practice in India. Hardly, one comes across a witness whose evidence does not contain a grain of untruth or at any rate exaggerations, embroideries or embellishments. It is the duty of the Court to scrutinise the evidence carefully and, in terms of felicitous metaphor, separate the grain from the chaff. But, it cannot obviously disbelieve the substratum of the prosecution case or the material parts of the evidence and reconstruct a story of its own out of the rest. Efforts should be made to find the truth. This is the very object for which Courts are created. To search it out, the Court has to disperse the suspicious cloud and dust out the smear of dust, as all these things clog the very truth. So long as chaff, cloud and dust remain, the criminals are clothed with this protective layer to receive the benefit of doubt. So, it is a solemn duty of the Courts, not to merely conclude and leave the case the moment suspicions are created. It is the onerous duty of the Court, within permissible limits to find out the truth. It means, on one hand that no innocent man should be punished, but on the other hand to see no person committing an offence should go scot free. If in spite of such effort suspicion is not dissolved, it remains writ at large, benefit of doubt has to be credited to the accused. The evidence is to be considered from the point of view of trustworthiness and once the same stands satisfied, it ought to inspire confidence in the mind of the Court to accept the evidence.

Negotiable Instruments Act, 1881; S.138 ---- Complainant and accused both are working in Government College ----- Both are governed by the Government Servants’ Conduct Rules which prescribes the mode of lending and borrowing ----- Nothing on record to show that the prescribed mode has been complied with ----- Disputes concerning the source of fund of the complainant ------ Non Disclosure of the amount to Income Tax authority though the complainant is a regular Assessee ----- Complainant did not produce Bank Statement ----- The trial court took into account the testimony of the wife of the complaint in another criminal case arising under Section 138 of the N.I. Act in which she has stated that the present appellant/accused had not taken any loan from her husband ----- Acquittal of accused confirmed.

Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (the Atrocities Act), S. 3(1)(ix), 3(2)(vi) and 3(2)(vii) read with 18 ------
Whether there is an absolute bar to the grant of anticipatory bail ----- unless exclusion of anticipatory bail is limited to genuine cases and inapplicable to cases where there is no prima facie case was made out, there will be no protection available to innocent citizens ----- Limiting the exclusion of anticipatory bail in such cases is essential for protection of fundamental right of life and liberty under Article 21 of the Constitution ----- exclusion of provision for anticipatory bail will not apply when no prima facie case is made out or the case is patently false or mala fide ----- protection of innocent against abuse of law is part of inherent jurisdiction of the Court being part of access to justice and protection of liberty against any oppressive action such as mala fide arrest

Arbitration And Conciliation Act, 1996; S. 8 ----- Whether termination of agreement by one party on account of breach committed by the other can make the arbitration clause inoperative ----- Held: where an agreement is terminated by one party on account of the breach committed by the other, particularly, in a case where the clause is framed in wide and general terms, merely because agreement has come to an end by its termination by mutual consent, the arbitration clause does not get perished nor is rendered inoperative.
Arbitration And Conciliation Act, 1996; S. 8 ----- Whether termination of agreement by one party on account of breach committed by the other can make the arbitration clause inoperative ----- Held: the prerequisites for an application under Section 8 are fulfilled, viz., there is an arbitration agreement; the party to the agreement brings an action in the court against the other party; the subject matter of the action is the same as the subject-matter of the arbitration agreement; and the other party moves the court for referring the parties to arbitration before it submits his first statement on the substance of the dispute ----- the civil court had no jurisdiction to entertain a suit afteran application under Section 8 of the Act is made for arbitration.

Negotiable Instruments Act, 1881; S. 138/147 ----- Compounding of offence punishable under section 138 N. I. Act ----- Guidelines given by the Apex Court for settlement of the offence ----

THE GUIDELINES
(i) In the circumstances, it is proposed as follows:
(a) That directions can be given that the Writ of Summons be suitably modified making it clear to the accused that he could make an application for compounding of the offences at the first or second hearing of the case and that if such an application is made, compounding may be allowed by the court without imposing any costs on the accused.
(b) If the accused does not make an application for compounding as aforesaid, then if an application for compounding is made before the Magistrate at a
subsequent stage, compounding can be allowed subject to the condition that the accused will be required to pay 10% of the cheque amount to be deposited as a condition for compounding with the Legal Services Authority, or such authority as the Court deems fit.
(c) Similarly, if the application for compounding is made before the Sessions Court or a High Court in revision or appeal, such compounding may be allowed on the condition that the accused pays 15% of the cheque amount by way of costs.
(d) Finally, if the application for compounding is made before the Supreme Court, the figure would increase to 20% of the cheque amount.