Claim only that amount you deserve in a Cheque to have valid claim under Section 138 NI Act: Hon’ble Supreme Court: Read Judgement
Cheque Bounce and Money Recovery

Claim only that amount you deserve in a Cheque to have valid claim under Section 138 NI Act: Hon’ble Supreme Court: Read Judgement

Hon’ble Supreme Court held that offence of Cheque Bounce under Section 138 of the Negotiable Instruments Act will not be valid if the cheque carry total amount without deduting the part-payment made by the borrower after the issuance of the cheque.

The Court held that the sum reflected on the cheque will not be the "legally enforceable debt" as per Section 138 Negotiable instrument Act.

Key Observations by the Hon'ble Supreme courts are

(i) For the commission of an offence under Section 138, the cheque that is dishonoured must represent a legally enforceable debt on the date of maturity or presentation;

 

(ii) If the drawer of the cheque pays a part or whole of the sum between the period when the cheque is drawn and when it is encashed upon maturity, then the legally enforceable debt on the date of maturity would not be the sum represented on the cheque;

(iii) When a part or whole of the sum represented on the cheque is paid by the drawer of the cheque, it must be endorsed on the cheque as prescribed in Section 56 of the Act. The cheque endorsed with the payment made may be used to negotiate the balance, if any. If the cheque that is endorsed is dishonoured when it is sought to be encashed upon maturity, then the offence under Section 138 will stand attracted.

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Judiciary & The Indian Constitution – Know How Well Has Judiciary Served The Constitutional Ideals
Supreme Court

Judiciary & The Indian Constitution – Know How Well Has Judiciary Served The Constitutional Ideals

The constitution shares an inextricable relationship with the judiciary. While the other two parts of the government system, legislature & executive promulgate & executive the laws respectively, it is the judiciary which ensures that the laws – whose crux is none other than fundamental rights –are not being violated and are happening correctly and appropriately.  Judiciary is the broad avenue where anyone from everyone can come to seek help for the violation of their fundamental rights, It is the recourse which anyone & anyone can avail and get their basic dues restored or even compensated. Without a proper, free and fair judiciary, the democratic polity risks digressing into the orders of chaos and despotism.

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Well, the Indian judicial system is hierarchical, composite and well-integrated which the two divergent aspects of federalism & unitary characteristics, both of which are prevalent in the Indian politico-legal system. The apex court in the Indian Judicial System is the Supreme Court of India. It is effectively called the custodian of the Constitution. Justice should be easily accessible to the people, this forms the fundamental basis of an effective judiciary, which in turn forms the core purpose of a modern welfare state, which judiciously blends the two different of freedom (let live alone) and social responsibility (the temporary patronization of weaker sections until we achieve equality).  

Some special features of the Indian Judiciary:

1. Amongst the Prominent Judicial Systems in the World

The judicial system of India is amongst the most important judicial systems in the world. India’s judicial structure is utilized to understand and apply the laws of the land. Judiciary acts in the amicable settlement of disputes between the parties. The Doctrine of Separation of powers empowers the judiciary to interpret laws. Judiciary does not actually make laws but interprets and applies them in the country.

2. A Unified And Cohesive Judicial System

India has an integrated and unique judicial system which is broadly chartered in the Constitution. Supreme Court lies at the top of the integrated hierarchy. Below the Supreme Court, there are the High Courts at the provincial or state level. Below the High Court\, there is a very well-integrated hierarchy which is made up of district courts and lower courts. Also, there is a single structure that galvanises both the Central and the State laws. India is a federation of provinces & union territories with a strong centre. India’s legal system tries to address that equation amicably. As per the characteristics of an integrated judicial system, an individual can appeal to a higher court when he/she is not comfortable with the decision of the lower court.

3. An Autonomous Judiciary

The United States has the system of separation of powers to ensure the independence of the judiciary. But ours is a constitutional system that is set up on the basis of Parliamentary sovereignty. Herein, the separation of powers is ruled out. This is what happens in England. This is also happening partly in India as here the Parliamentary and constitutional sovereignty doctrines are blended together. The independence of the judiciary here implies the freedom of the judges to make judgements in an unbiased manner, free from any control and influence. An independent judiciary is needed to serve the following factors:

  • To check the functioning of the organs.
  • Interpreting the provisions of the constitution.
  • To act in a fair and unbiased manner.

4. Importance of Independence of the Judiciary

As per some observers, it is amazing that the independence of the judiciary is still not quite distinct even after so many years of its unfolding. Even our Constitution speaks about the independence of the judiciary without clearly spelling out what it means. The main talk is about the separation of powers that is establishing a system wherein judiciary is not under any undue influence of legislature (and extendedly the executive).  

5. The Emergence Of Judicial Activism

This term, Judicial Activism has its origin in the USA. This term had a positive connotation in the mid-20th century s courts were seen as upholder of the democratic rights of the people. The concept of judicial activism evolved and developed fast over the years and it came to attain a lot of legitimacy among the Indians with special reference to the unruly behaviour of the legislative and executive organs.

Various observers have praised lauded the efforts of judges in the protection of civil rights. Judicial activists came to be hailed as civil rights activists. However lately, some experts have derided judicial activism as an instance where the judge is misusing the authority as democracies meant to thrive on the separation of powers among the judiciary, executive and legislature. Lots of activism in the hands of the judiciary is at times seen as infringing on the rights of the other sections of the government.

In the gospel of promoting democratic ideals, there is a special requirement for people’s involvement in influencing government actions and programmes in the desire of good governance. The Indian Judiciary by pursuing judicial activism has facilitated the emergence of protection & promotion of social interests.

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The Hierarchy Of The Indian Judiciary Or The Indian Judicial System
Supreme Court

The Hierarchy Of The Indian Judiciary Or The Indian Judicial System

Judiciary – The Paramount Pillar Of A Vibrant Democracy

Most democratic governments across the world consist of three parts, namely Legislature, Executive, and Judiciary.  The same is true about our own country, the Republic of India. While the legislature and executive are concerned with the promulgation and implementation of law respectively, it is the judiciary that invokes the spirit of the Constitution and ensures that laws are being properly implemented and there is no gross or subtle lapse in the implementation of laws.

Judiciary sees to it that if someone is being denied his/her fundamental rights, then the perpetrators are brought to book and free flow of equality and freedom are restored. If perfect democracy is the most sublime dream of the idealistic human, then that dream is totally unattainable without the active involvement of a free and fair democracy.  

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The Importance Of The Indian Judiciary

A formidable structure like the judiciary and that too of a vast country like India – which is all set to take over China in terms of population – should be well-built and well-structured, in order to serve such a huge mass of people. So, the Indian judiciary consists of a well-built hierarchical order, to serve the interests of the people and to create a harmonious equation between the center and the states as India is neither purely unitary nor purely federal in its statecraft structure.

The Hierarchy Of The Indian Judiciary  

The Indian Judicial system is in part the continuation of the British legal which was established around the mid-19th century by the English government.

The Indian Judicial system is an organized combination of various types of courts that exist and operate herein. Broadly speaking,  they are divided into 3 levels. Below is the chronological order of the Indian legal system means we begin with the topmost level court in the hierarchy and end with the lowest one:

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The Supreme Court

The Supreme Court occupies the highest level of the Indian court system. It is the highest authority court system with the maximum overriding influence in India, its decision can not be challenged by any other court in India. In case, somebody wants to challenge it, he/she will have to write a letter to the President or the Prime Minister of India to do so.

The Indian judiciary has a single Supreme Court, which is situated in the Indian national capital Delhi. The Supreme Court came was set up in the year 1950 on January 28,  just two days after the constitution of India came into existence.

State Courts / High Court

The State Courts are placed directly under the Supreme Court of India. Most Indian states have a court that has maximum judicial authority in the respective state. This is the High Court of the state which is usually located in the capital city of that particular state. The High Courts judge the cases of their state while the Supreme Court wields the authority to challenge the verdicts that happen in the High Courts.

District Court

Then there are the lower courts in all the states that are lesser in matters of power and authority than the High Court. They are called district courts because they have authority in that district. The district court is further divided into 3 parts as under –

Session Courts – They form part of District Court, they have highest power in the district.

Lower Courts – They are courts of the lower level and mostly, all the cases of close-by localities are sent to these courts.

Panchayat – They are sort of courts. But they are in villages where a jury consisting of five (or more) people of that village selects a head. They look after the local issues. If some issues are beyond their power, those are sent to Lower Court then.

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SUPREME COURT JUDGMENTS ON ANCESTRAL PROPERTY
Property

SUPREME COURT JUDGMENTS ON ANCESTRAL PROPERTY

In recent years, the Supreme Court has regularly taken a gender-neutral stance on property division between daughters and sons. The judiciary is steadily working to make succession law more accommodating to women. On August 11, 2020, a three-judge panel of the Supreme Court declared in Vineeta Sharma v. Rakesh Sharma that daughters and sons had equal coparcenary rights in an undivided Hindu household (HUF). In this conclusion, the Supreme Court clarified two aspects:

  • Coparcenary rights are acquired by daughters on their birth; and

  • Fathers need not have been alive when the 2005 amendment to the Hindu Succession Act 1956 was passed.

Latest Supreme Court Judgment on Parents’ Property

The 2005 amendment granted sons and daughters of coparceners equal status. Prior to the 2005 amendment, only male descendants (i.e., sons) of coparceners were granted coparcenary privileges. Despite the fact that the 2005 amendment intended to offer sons and daughters equal rights, the ambiguities in the language prompted the Supreme Court to issue different verdicts on this matter.

Until the Vineeta Sharma judgment, equal status was granted only to daughters whose fathers  were alive when the amendment came into force on 9 September 2005. The Supreme Court upheld this view in 2015. However, in 2018 the Supreme Court issued a contradictory ruling in Danamma v Amar, granting two daughters of a coparcener rights in their father's property even though he had passed away in 2001.

According to the decision in Vineeta Sharma, equal rights conferred on daughters of coparceners by the 2005 amendment apply from birth, irrespective of when their father dies. The Supreme Court has clarified that the 2005 amendment applies retrospectively and not only in cases where the father was alive on the date on which the 2005 amendment took effect.

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Latest Supreme Court Judgments On Ancestral Property 2023

Vineeta Sharma's ruling has significant consequences for the distribution of ancestral property. This supreme court judgement on will of ancestral property is subject to the stipulation that the ancestral property was not partitioned by the father prior to December 20, 2004. A daughter can now claim an interest in the property as long as it is still ancestral property and has not been partitioned as of this date.

As per Hindu Law, a person automatically acquires the right to his or her share in the ancestral property at the time of their birth. An ancestral property is the one which is inherited up to four generations of male lineage. A property is regarded ancestral under two conditions - if it is inherited by the father from his father, that is the grandfather after his death; or inherited from the grandfather who partitioned the property during his lifetime. In case, the father acquired the property from grandfather as a gift, it will not be regarded as an ancestral property.

Even during his father's lifetime, a son might claim his share in an ancestral property In any instance, the petitioner for a piece of the property must demonstrate his succession. The statute, however, excludes from the Class I heirs a stepson (the son of the other parent with another partner, deceased or otherwise).

The court, in some cases, allows a stepson to inherit the father’s property. For instance, in a case addressed by the Bombay High Court, the applicant was the son of a deceased Hindu woman’s issue with her first husband. The woman acquired the property from her second husband who did not have any legal heir except his wife. The court upheld the stepson’s claim and declared that after the woman’s death, her son - the stepson of the second husband - could claim his succession over the property. This decision was made when the nephews and grand-nephews of the deceased second husband claimed title to the property.

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Supreme Court Judgments On Father's Property

According to the Hindu Succession Act, 1956, a son or a daughter has the first right as the Class I heirs over the self-acquired property of his or her father if he dies intestate (without leaving a will). As a coparcener, an individual also has the legal right to acquire his or her share in an ancestral property. But in certain situations, a son may not receive his share in his father’s property. These situations include a father bequeathing his property to someone else by way of will. 

The Supreme Court has time and again given progressive decisions and has made devolution of property a more equitable arrangement.

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चाइल्ड कस्टडी की मामलों में बच्चे की इच्छा भी बहुत महत्वपूर्ण: सर्वोच्च न्यायलय
Child Custody

चाइल्ड कस्टडी की मामलों में बच्चे की इच्छा भी बहुत महत्वपूर्ण: सर्वोच्च न्यायलय

Case: Smriti Madan Kansagra v Perry Kansagra (Civil Appeal No. 3559/2020)

Section 17(3) of the Guardian & Wards Act 1890

17(3), the preferences and inclinations of the child are of vital importance for determining the issue of custody of the minor child. Section 17(5) further provides that the court shall not appoint or declare any person to be a guardian against his will".

Smriti Madan Kansagra v Perry Kansagra (Civil Appeal No. 3559/2020) केस जहाँ Guardian & Wards Act 1890  की धारा 17(3) को समक्ष रखते हुए माननीय सर्वोच्च न्यायालय ने ये माना की चाइल्ड कस्टडी की मामले में नाबालिग की इच्छा भी सामान रूप से महत्वपूर्ण है तथा उसकी वरीयताओं पर भी विचार किया जाना चाहिए खास कर जब वो एक ऐसे उम्र में हो जहां उसमे अपनी पसंद और नापसंद की बारे में पर्याप्त जानकारी हो तथा वो भी अपनी वरीयता की अनुसार चुनाव करने योग्य हो.

सुप्रीम कोर्ट की तीन जज की बेंच जिसमे न्यायमूर्ति यु यु ललित, न्यायमूर्ति इंदु मल्होत्रा तथा न्यायमूर्ति हेमंत गुप्ता थे उन्होंने एक अत्यंत महत्वपूर्ण फैसले में एक नाबालिग बालक की कस्टडी उसके पिता को प्रदान की जो की नैरोबी, केन्या  में रहते है।

यह क़ानूनी लड़ाई लगभग दस साल चली जिसमे आदित्य (वह नाबालिग बालक जिसकी कस्टडी की लिए ये केस था) की कस्टडी की लिए उसके माता पिता ने परिवार कोर्ट से ले कर सुप्रीम कोर्ट तक ये कठिन कनूनी राह तय की तथा अंततः सुप्रीम कोर्ट ने आदित्य की सम्पूर्ण कस्टडी उसके पिता को प्रदत्त की।

यह जानना भी बेहद रोचक है की इस लम्बी और कठिन क़ानूनी लड़ाई की दौरान माननीय न्यायमूर्ति आदित्य से व्यक्तिगत रूप से अपने चैम्बर में कई बार मिले और यह जानने की कोशिश करी की आदित्य की व्यक्तिगत राय क्या है तथा उसकी वरीयता में उसके माता या पिता में उसकी अधिक नज़दीकी किसके साथ है। इस प्रकार की अनौपचारिक बातचीत से माननीय न्यायमूर्ति संतुष्ट हुए की बालक की समझ और वरीयता में वो अपने पिता से ज्यादा करीब था तथा उसकी इच्छा अपने पिता के साथ रहने की थी।

माननीय सुप्रीम कोर्ट ने अपने फैसले में स्पष्ट तौर Guardian & Wards Act 1890 अधिनियम की धारा १७(३)  का उल्लेख किया तथा स्पष्ट किया की इस केस में बालक की भविष्य का फैसला इस प्रकार से होना चाहिए जो उसके भले के लिए सर्वोपरि हो तथा उसके सभी हितों की सम्पूर्ण रक्षा भी हो।

माननीय सुप्रीम को ने परिवार कोर्ट, हाई कोर्ट के फैसले तथा कौंसिलर की रिपोर्ट को भी बहुत गौर से परखा और पाया की बालक आदित्य ने अपने पिता की अधिक झुकाव दिखाया था। अपने फैसले को अंतिम रूप देते हुए माननीय सर्वोच्च न्यायालय ने बालक की हितों को सर्वोपरि मानते हुए उसकी संगरक्षण की ज़िम्मेदारी उसके पिता को सौंप दी। सुप्रीम कोर्ट का पूरा फैसला यहाँ से पढ़े।:

https://main.sci.gov.in/supremecourt/2020/8161/8161_2020_34_1501_24506_Judgement_28-Oct-2020.pdf