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An application was filed by Hindustan Unilever Ltd. (HUL) against Emami. It was for restraining Emami from telecasting one of its commercials for the product ‘Fair And Handsome’, which allegedly disparaged read more
An application was filed by Hindustan Unilever Ltd. (HUL) against Emami. It was for restraining Emami from telecasting one of its commercials for the product ‘Fair And Handsome’, which allegedly disparaged the goodwill and reputation of HUL’s product, ‘Fair & Lovely’. This application was a part of the suit filed by HUL for trademark infringement, disparagement and unfair trade practices on the part of Emami.
Niacinamide is the key substance is capable of delivering skin lightening benefits and HUL used this substance to develop the technology they used in ‘Fair & Lovely’. HUL claims that this is the same ingredient that works for both the gender in the same manner but may vary in the degree of efficiency. Male consumers commonly used the fairness products available in the market and that is the reason there was no product in the market that was targeting men specifically.
HUL started targeting the male population from 2006 with the launch of ‘Fair & Lovely Men’ and later the name was changed to ‘Men’s Fair & Lovely’. Emami used HUL’s case in their advertisement and made a false claim that HUL’s Fair & Lovely was “rubbish and inefficacious” and is restricted to be used only by women. The advertisement was objected by HUL. The ad was featuring “a tube with its colour combination of pink and white” and was referring to it as “ladkiwali fairness cream”. The ad depicted the pink-white cream is ineffective on men’s skin while Emami’s ‘Fair And Handsome’ is effective for a fairness cream for men. The active ingredient for both creams is Niacinamide. HUL pleaded “The advertisement was an attempt to demean, diminish and injure the business of HUL” to which Emami responded “defended the advertisement by stating that the whole intention behind the advertisement was to inform male consumers that the fairness cream used by female consumers was not effective on their skin, as the texture of male skin was completely different.”
HUL admitted that the requirement for men’s and women’s skin was different. After hearing the parties, the Court ordered that the fairness cream tube that was shown in the advertisement should be changed to white; there should not be a dual face logo, which was materially different from HUL’s product. “The TV commercial no doubt seems to make fun of a male using a ladies cream. Can it be said that this advertisement on account of the said dialogue stated is false or misleading or unfair or deceptive? Does it amount to generic disparagement? The answer is in the negative. In view of the literature that has been posted on its own website by the plaintiff, it also cannot be said that prima facie the statements made in the advertisement regarding using of women’s cream by men is false.”
It was stated by the Delhi High Court that the advertisement did not in any manner disparage HUL’s “Fair and Lovely”. The advertisement does not, prima facie, slander the goods of HUL, the Court decreed while dismissing the application.
Minerva Mills V. Union Of India (1980) Supreme Court had struck down Section 55 & 4 of the 42nd Amendment because it violated the basic structure doctrine. The Court emphasized on the importance read more
Minerva Mills V. Union Of India
(1980)
Supreme Court had struck down
Section 55 & 4 of the 42nd Amendment because it violated
the basic structure doctrine. The Court emphasized on the importance of
judicial review and held that Section 55 of the amendment act 1976 is void
because it made the challenge in Court not possible and removed all
restrictions on the Parliament's power under Article 368.
S.R Bomai V. Union Of India
(1994)
Supreme Court held that the
President's power to dismiss a State Government is not absolute. The power
should be exercised by the President only after both the Houses approve his
proclamation. Till then, he can only suspend the Constitutional provisions
thereby suspending Legislative Assembly.
L. Chandra V. Union Of India
(1995)
Supreme Court concluded
that the Tribunals constituted under Articles 323A and 323B have the power
to test vires of subordinate legislation except vires of their parent statutes.
All its decisions would be subject to scrutiny before Division Bench of their
respective High Courts under Articles 226/227. No appeal would lie directly to
the Supreme Court under Article 136. The said direction would operative
prospectively.
Maneka Gandhi V. Union Of India
(1978)
This judgment expanded the scope of
Article 21 of the Constitution and made India a welfare State. The major
findings of the judgment are as follows:
1. The
court while delivering this landmark judgment changed the landscape of the
Constitution by holding that though the phrase used in Article 21 is “procedure
established by law” instead of “due process of law” however, the
procedure must be free from arbitrariness and irrationality.
2. Even
though the Constitution makers must be respected, but they never intended to
plant such a self – destructive bomb in the heart if the Constitution. They
were never of the mind that the procedure need not necessarily be reasonable,
just and fair. They drafted this Constitution for the protection of the “people
of India” and such interpretation of Article 21 will be counter-productive
to the protection offered by the Constitution.
3. The
scope of “personal liberty” is not be construed in narrow and stricter
sense. The court said that personal liberty has to be understood in the broader
and liberal sense. Therefore, Article 21 was given an expansive interpretation.
The court obligated the future courts to expand the horizons of Article 21 to
cover all the Fundamental Rights and avoid construing it in narrower sense.
4. Section
10(3)(c) of Passport Act 1967 is not violative of either Article 21 nor Article
19(1)(a) or 19 (1)(g). The court further held that the said 1967 provision also
not in contradiction of Article 14. Since the said provision provides for an
opportunity to be heard. The court rejected the contention of petitioner that
the phrase “in the interests of the general public” is not vague.
Danial Latifi V. Union Of India
(2001)
Supreme Court held that while
divorce, the husband has a duty to consider his wife's future needs and make required
arrangements well in advance so that those need could be met. This case
established the Muslim husband's liability for facilitating maintenance to his
wife even after divorce. The period included is that beyond the iddat period.
Vellore Citizens Welfare Forum V.
Union Of India
(1996)
Supreme Court observed that one of
the major foreign exchange earner was the leather industry. Among others,
'precautionary principle' and 'polluter pay principle' are the important
environmental measures to be taken by the State thus anticipating, preventing
and attacking the causes of environmental degradation.
S.P. Gupta V. Union Of India
In this case, the Apex Court
observed that the President's actions can only be challenged only when there is
apprehension of mala fide intention on part of him or
extraneous considerations.
Dk Basu V. State Of West Bengal
(1996)
The Court gave certain guidelines
regarding the rights and duties of arrested persons and arresting police
official. These are:
· The
police official who arrests and handles the interrogation of the arrested
person must wear accurate, visible and clear identification and name tags with
their designations. A register has to be maintained in which particulars of all
such personnel who handle interrogation of the arrestee will be recorded.
· A
memo of the arrest has to be prepared by such official at the time of arrest.
Such memo shall have to be attested by at least 1 witness. He can be a family
member of the arrested person or even a respectable person from the locality
(area of arrest). The arrestee will countersigned by the arrestee.
· Right
to inform Near ones about arrest: The arrestee must be given a
chance to inform someone about his arrest or detention, as a matter of right.
· A
case diary has to be maintained at the place of detention. It should contain
details of the arrestee, the name of the person to whom he has informed
about his arrest or detention and the details of the police official who has
given effect to that arrest.
· When
the informed person lives outside the district or town, the police is obligated
to give them details regarding time, place of arrest and venue of custody of an
arrestee. This can be done through the Legal Aid Organization in the District
and the police station of the area concerned telegraphically within period of 8
to 12 hours after the arrest.
· If
the arrestee requests, he can be examined while being arrested. If any
injuries, minor or major, are found on his body, it must be recorded at that
time. The “Inspection Memo” must be signed both by the arrestee and the police
officer effecting the arrest and its copy provided to the arrestee.
· Right
to get medical facilities: The arrested person has to be medically
examined by a trained doctor every 48 hours when he is detained
· Right
to Consult Advocate: The arrestee should not be stopped to met his
Advocate during interrogation.
Kharak Singh Case
(1964)
Supreme Court held that “It
is essential for us to determine whether there is a fundamental right to
privacy in the Indian Constitution. Determination of the question would
essentially entail whether the decisions in M P Sharma by an eight-judge Bench
and Kharak Singh by a six-judge Bench that there is no such fundamental right
is the correct expression of constitutional provisions,”
Sodan Singh V. NDMC
(1989)
Supreme Court had considered the
Thareja Committee's report and concluded that the occupation and places which
were decided by the Committee is tentative. The Court noted its recommendation
that in case the dues are not paid, the claimant shall not be entitled to the
benefit under this scheme. Certain procedures were directed to make final
allotment of sites to the eligible squatters.
Naga's Peoples Movement For Human
Rights V. Union Of India
(1998)
The Supreme Court said that for any
area to be declared as a disturbed one, a grave situation of law and order must
exist on the basis of which the Governor/Administrator of the State/Union
Territory or the Central Government can form an opinion that area is in such a
disturbed or dangerous.
M. Nagaraj V. Union Of India
(2006)
The constitutional validity of 77th,
81st, 82nd, and 85th Amendments were upheld by Supreme Court. It held that if
the State wants to exercise their discretion and make provisions for
reservation to promote SC/STs, quantifiable data showing backwardness of the
class and inadequacy of representation of that class in public employment in
addition to compliance of Article 335 has to be collected.
Selvi V.
State Of Karnataka
(2010)
The Supreme Court reiterated on
Article 20(3) as follows:
“Article 20 (3) aims to
prevent the forcible conveyance of personal knowledge that is relevant to the
facts in issue. The results obtained from each of the impugned tests bear a
testimonial character and they cannot be categorised as material evidence.
In their considered opinion that
subjecting a person to the impugned techniques in an involuntary manner
violates the prescribed boundaries of privacy.”
Society For Un-Aided Private Schools Of Rajasthan V.
Union Of India And Anr.
(2012)
Supreme Court bench comprising of
Chief Justice SH Kapadia and Justices Swatanter Kumar and Justice KS
Radhakrishnan upheld the constitutionality of the RTE Act. It held that under
that Article 19(6) it was permitted to impose reasonable restrictions on the
right to carry on an occupation, trade or business under Article 19(1)(g).
Also, 25% reservation obligation on private unaided schools was a reasonable
restriction. It was also held that Section 12(1)(c) of the Act requiring
unaided minority schools to admit children from disadvantaged groups violated
the minority character of those institutions and hence, the RTE Act could not
be applied to private unaided minority schools.
D.S. Nakara V. Union Of India
(1983)
Supreme Court had observed that:
"With the expanding horizons of
socio-economic justice and the classification being not based on any
discernible rational principle having been found wholly unrelated to the
objects sought to be achieved by grant of liberalized pension, it could be
safely said that this differential treatment is violative of Article 14 and
unconstitutional. The classification must not be arbitrary but must be
rational, that is to say, it must not only be based on some qualities or
characteristics which are to be found in all the persons grouped together and
not in others who are left out but those qualities or characteristics must have
a reasonable relation to the object of the legislation. Also, Article 14 is
certainly attracted where equals are treated differently without any reasonable
basis."
Nandini Sundar V. State Of
Chhatisgarh
(2011)
supreme court addresses the issue
of ill-treatment, torture, murder, and forced displacement suffered by
local people. The Court reaffirmed that these actions on part of the State are
unconstitutional and ordered the State to strictly abide by the rule of
law. For this, orders were passed to stop SPOs with immediate effect to stop them
from funding the other vigilante groups' recruitment.
Swamy Shraddananda V. State Of
Karnataka
The Apex Court had held that if the
Court has good reasons to substitute death sentence by life imprisonment or by
a period of 14 years, it can direct the convict to not be released from jail
for the rest of his life or for the actual term as specified in the order, as
the case may be.
Zahira Habibullah Sheikh &
Anr V/s State of Gujarat & Ors
(2006)
The Supreme Court bench raised vital
questions with regards to the roles of various bodies like Court, Investigating
agencies, Public Prosecutors etc. in a criminal proceeding. When the State
prosecutes the State itself, there arises a major concern of State-sanctioned
and sponsored criminal bouts of communal violence. It extends to every officer
of the prosecuting State undertaking every effort to ensure the acquittal of
accused officers of the State.
Kihoto
Hollohon v. Zachilhu and ors.
(1992)
The Supreme Court considered the
52nd Amendment to the Constitution and held that it violated the whole
Constitution as the Constitutional scheme for decisions on questions on
disqualification of members after being duly elected, contemplates adjudication
of such disputes by an independent authority outside the House, namely
President or Governor in accordance with the opinion of the Election
Commission, all of which who high Constitutional functionaries are.
Aruna
Ramchandra Shanbaug v. Union Of India
(2011)
The Apex Court considered the principle of parens patriae, It prevented any misuse by determining termination of life of a person in High Court. Thus, passive euthanasia was allowed by the Court in some cases. But even for this, the approval has to be taken from the concerned High Court and proper procedure is to be followed.
Section 138 of Negotiable Instruments Act, 1881The Negotiable Instruments Act, 1881 talks about three types of instruments. These are promissory notes, bills of exchange and cheques. 'Negotiable' means read more
Section 138 of Negotiable Instruments Act, 1881
The Negotiable Instruments Act, 1881
talks about three types of instruments. These are promissory notes, bills of
exchange and cheques. 'Negotiable' means transferable in regards to consideration.
'Instrument' means a written document creating a right in favor of the other
person. Thus negotiable instrument means a document (sum of money) transferable
by delivery.
The
discharge of liability of the accused has been decided by the various Courts.
The concept can be understood by discussing relevant case laws which are as
follows:
Joseph Vilangadan v. Phenomenal Health Care Services
The
Bombay High Court has held that no liability of the accused arises when the he
had issued a cheque merely to serve the purpose of serving as security
deposit and not for discharging any of his debt or loan. The language
of the agreement is the best source to determine the purpose of drawing a
cheque.
Goaplast Pvt. Ltd. v. Shri Chico Ursula Dsouza
In
this case, it was held that a post dated cheque is not payable
on demand till a particular date. It is not a cheque in the eyes of law till
the date it becomes payable on demand.
"When
a posted dated cheque is written or drawn, it is only a bill of exchange and as
such, the provisions of Section 138 are not applicable to the said instrument."
Anil Kumar Swahney v. Gulshan Rai
In
this case, the Supreme Court has held that one of the most important
ingredients of Section 138 is the cheque has to be returned by the bank unpaid.
There can exist no charge of offence under Section 138 until the bank doesn't return the
cheque unpaid, even if the drawee has knowledge of the same beforehand.
Regarding
post dated cheques, the Apex Court held that they cannot be presented before
the bank until the actual date arrives. only when the post-dated cheque becomes a
"cheque", with effect from the date shown on the face of the said
cheque, the provisions of Section 138 come into picture.
The conclusion
is that a post-dated cheque has the value of a bill of exchange only till the
date written on it. In the words of Supreme Court:
With effect from the date shown on the face of the said
cheque it becomes a "cheque" under the Act and the provisions
of Section 138(a) would squarely be attracted. In the present case
the post-dated cheques were drawn in March 1990 but they became
"cheques" in the year 1991 on the dates shown therein. The period of
six months, therefore, has to be reckoned from the dates mentioned on the face
of the cheques.
CC.No.16701 of 2012
Another
instance where the accused is not held guilty is when the complainant fails to
produce copy of loan agreement and copy of loan account statement. Non-
production of these two material documents are fatal to the case of
complainant. The cheques, in the present case, were solely issued for the
purpose of discharging his liability, but the complainant failed to produce evidence
of outstanding existing balance amount. Thus, the Bangalore High Court
held that
"Therefore, the Section 138 of NI Act is not applicable to the undated cheques
given as a security to loan agreement. As we all know that the cheques
collected for the security of loan amount should be treat as a security for the
loan amount. Those cheques cannot be used for any other purpose."
Conclusion
There
have been many changes to the law regarding dishonour of cheques, specially
with regards to jurisdiction. The Negotiable Act assures a speedy trial in such
cases and bring inviolability to the system by reducing default of payments.
Understanding ConfessionsA confession can be defined as any person admitting his guilt while being in custody. He states that he is guilty of the offence he is charged for. In the words of Justice Stephen, read more
Understanding Confessions
A confession can be defined as any person admitting his guilt
while being in custody. He states that he is guilty of the offence he is
charged for. In the words of Justice Stephen, a “confession” is an admission made at any time by a person
charged with a crime stating or suggesting the inference that he committed that
crime.
Even the Supreme Court has opined that confessions are the
highest degree of reliable sources because no person would be willing to face
the repercussions of the crime he has not committed. He will confess only when
he is actually guilty of that crime and genuinely feels he should be punished.[1]
Any statement which contains self blaming matter which is
false, would not amount to a confession merely because the person has stated
it. There needs to be strong evidences also to support that confession.
Statements
recorded by Magistrate
The statement by the
accused needs to be recorded to serve the following purposes:
Firstly, to discourage
the witness from changing their statements again and again.
Secondly, to get over the immunity
from the prosecution in regard to information given by the witness under
section 162 of the code.
The legal provision in
this regards is Section 164, Code of Criminal Procedure.
Section
164 Decoded
Section
164(1) gives the Magistrate the authority for recording a
person's confession or statement. There is no jurisdictional issue involved.
This means it doesn't matter whether he has a jurisdiction over that person or
not to record the statement. In case he
doesn't possess jurisdiction, then he has to forward the recorded
statement/confession to the Magistrate who is legally empowered to try the
case.
Section
164(2) acts as a warning. The Magistrate has to inform the
person willing to make a statement/confession that he is not legally bound to
do so and that such statement may act as an evidence against the person who has
made it. Also, the Magistrate will not record the statement unless he is fully
satisfied that such statement/confession is being made voluntarily, and not
under any pressure.
The Indian Courts have observed that where the
confession is made by the accused and recorded by the Magistrate, but the
latter failed to make the former aware of the warning under Section 164(2), such
confession cannot be taken into consideration by Courts.[2]
Section
164(3) guarantees that the person who is willing to
confess or make a statement is not pressurized by the police to do so. When the
accused
The fourth clause of Section 164 talks
about manner of recording confessions. It states that these must be recorded in
accordance to Section 281of Code of Criminal Procedure and
shall be signed by the person making it. The Magistrate is to then make a memo.
Signing a printed confession will be violative of this section.
One of
the mandatory requirements is that the confession once recorded must be signed by
the accused. This is to maintain transparency. The confession has to be
attested while being made before any officer in Court who is trying the case.
Section
164(5) lays down the manner of recording a statement by
witness. It can be recorded even when the chargesheet has already been filed.
While sub section 6 of section 164
states that in case he doesn't possess jurisdiction, then he has to forward the
recorded statement/confession to the Magistrate who is legally empowered to try
the case.
Recorded
Statement: Public or Private?
The statement which is
recorded by Judicial Magistrate or
Metropolitan Magistrate under section 164 CrPC is a public document under
Section 74 of Indian Evidence Act,1872. This evidence is admissible under Section 80 of the Indian
Evidence Act, 1872.
The statement of witness recorded under section 164 CrPC, is
a public document which does not require any formal proof and there is no
necessity to summon the magistrate who records the same[3]
Principles to be Followed
The Supreme Court had laid down the following principles:[4]
1.
The provisions of Section 164 Cr.P.C. must be complied with not
only in form but in essence.
2.
Before proceeding to record the confessional statement, a
searching enquiry must be made from the accused as to the custody from which he
was produced and the treatment he had been receiving in such custody in order
to ensure that there is no scope for doubt of any sort of extraneous influence
proceeding from a source interested in the prosecution.
3.
A Magistrate should ask the accused as to why he wants to make a
statement which surely shall go against his interest in the trial.
4.
The maker should be granted sufficient time for reflection.
5.
He should be assured of protection from any sort of apprehended
torture or pressure from the police in case he declines to make a confessional
statement.
6.
A judicial confession not given voluntarily is unreliable, more
so, when such a confession is retracted, the conviction cannot be based on such
retracted judicial confession.
7.
Non-compliance with Section 164 Cr.P.C. goes to the root of the
Magistrate’s jurisdiction to record the confession and renders the confession
unworthy of credence.
8.
During the time of reflection, the accused should be completely
out of police influence. The judicial officer, who is entrusted with the duty
of recording confession, must apply his judicial mind to ascertain and satisfy
his conscience that the statement of the accused is not on account of any
extraneous influence on him.
9.
At the time of recording the statement of the accused, no police
or police officer shall be present in the open court.
10. Confession of a
co-accused is a weak type of evidence.
11. Usually, the Court
requires some corroboration from the confessional statement before convicting
the accused person on such a statement
A number of cases have been listed wherein the bank officials repeatedly call and harass the customers for payment of debt. They call through anonymous numbers and sometimes even abuse the bank customer, read more
A number of
cases have been listed wherein the bank officials
repeatedly call and harass the customers for payment of debt. They call through
anonymous numbers and sometimes even abuse the bank customer, thereby crossing
all the moral limits. This imposed a serious problem of anger and rage within
the customers and by seeing such behavior, the bank officials are avoided by
them because of their abusive language etc..
The Reserve Bank
of India had released some guidelines in this regard. The credit card holder
who has failed to make payment can opt for the following recourse when harassed
by bank officials:
Police Complaint
They can file a
complaint with the nearest police station. The complaint filed must be against
the bank and if the case is refused to be rejected by the police, the next
person who can be approached is the Magistrate.
Injunction Suit
The person can
also go for filing an injunction suit in Civil Court, a civil one against the
bank. This remedy can be sought to stop the bank officials from unnecessarily
visiting the premises of the credit card holder for recovering the dues.
Filing complaint with RBI
RBI has issued
guidelines governing the recovery agents for the purpose of approaching the
credit card holder at default. Thus, if the conduct of bank officials seems
threatening, the person can file a complaint with the RBI.
Allegation of extortion
If the bank
officials repeatedly call the customer, he can legally file a case of extortion
against the bank official for forcefully taking the money.
The step by step legal action which
can be taken by a person, being a victim of such harassing calls, is as
follows:
Step 1: Complain to your bank
Almost all banks have a grievance department.
The customer can approach that department and have a one to one discussion on
the matter. Also, the complaint can be registered on a toll free number or
website of the respected bank.
After filing the complaint, the customer has to
wait for a period of 30 days for the bank to solve the matter or give a reply.
Step 2: Approach the
banking ombudsman
If there comes no response from the bank within the stipulated 30 days, the
banking ombudsman can be approached. RBI appoints such person as a senior
official who redresses the complaints by customers.
The ombudsman has a duty to
provide a legally binding decision which shall call for settlement between the
bank and customer.
The grievances which relate
to credit cards are to be filed with the ombudsman in whose territorial
jurisdiction the billing address of the customer is located.
Step 3: Legal route
If aggrieved by the order of ombudsman, an appeal can be filed before the
appellate authority within a period of 30 days. The Deputy Governor of RBI acts
as the appellate authority for the matters relating to credit cards.
The alternate measure is to approach the
consumer redress forums or Courts.
Ø Limitation is an important aspect for initiating proceedings under Section 138 or 141 of Negotiable Instruments Act. The legislature has made the timelines quite strict and Courts in India have read more
Ø Limitation
is an important aspect for initiating proceedings under Section 138 or 141 of
Negotiable Instruments Act. The legislature has made the timelines quite strict
and Courts in India have also construed the timelines very strictly.
ü Once a
cheque is presented for encashment, and upon such presentation of the cheque
gets dishonoured[1]
the payee (in whose favour the cheque is drawn) have to send a Legal notice
within 30 days from the date of return of the cheque.
ü The
Payee must ask the drawer of the cheque to pay the
amount within 15 days.
ü Upon the
expiry of the 15 days from the service of the Legal notice, the payee has to file a
complaint case before the concerned magistrate within 30 days of the said
expiry.
ü Once t Complaint case is filed in the Court of Magistrate, the pre-summoning evidence
of the Complainant is done, and post which the court process (summons)[2]
is issued to the Accused. The accused, upon appearing in Court on the date fixed for
hearing, is asked whether he pleads guilty or not and the trial is said to have
commenced at this point.
Ø Note: In case the payee misses
any of the stipulated timelines, the Cheque can be presented to
the bank any number of time (if the cheque is within the validity period i.e. 3
months) and upon each time of dishonouring of the cheque, fresh cause of action
arises.
Ø Note: Nothing in the Negotiable Instrument Act precludes the payee from filing a separate civil suit for recovery of the amount due for which the limitation period is 3 years from the cause of action.
Recent Amendment to pay
compensation pending trial:
Section 143A: Under
this Section, the Court trying an offence under Section 138 may order the
drawer of the cheque to pay interim compensation to the complainant which
shall not exceed 20% of the amount of the cheque.
Section 148- An
appeal by the drawer against the conviction under Section 138, the Appellate
Court may order the appellant to deposit such sum which shall be minimum of
20% of the fine or compensation awarded by the trial court.
Ø The
interim compensation must be paid within 60 days from the date of the order or
within such further period within such period not exceeding 30 days as may be
directed by the Court.
ASLAM BABALAL DESAI v. STATE OF MAHARASHTRA(1992)In general, grounds for bail cancellation are interference or attempt to interfere with the due course of administration of Justice, or evasion or attempt read more
ASLAM BABALAL DESAI v. STATE OF
MAHARASHTRA
(1992)
In general, grounds for
bail cancellation are interference or attempt to interfere with the due course of administration of Justice, or
evasion or attempt to evade the course of justice or abuse of the liberty
granted to him. When the accused is granted bail under Section 167(2) for the
prosecution being at default for not completing the investigation within 60
days after the defect being cured by chargesheet being filed, the bail may be
deemed to be cancelled on the ground that reasonable grounds do exist for the
accused committing a non-bailable offence. It is necessary for him to be arrested
and taken into custody. Strong grounds are
necessary to cancel the bail
and are to be made out in the charge-sheet.
DEEPAK KUMAR SAH v. THE STATE OF BIHAR
(2015)
The
petitioner was in jail for 9 months. The complainant had became pregnant after
having consensual physical relations with him. Hence, the petitioner is liable
to maintain the lady and at the time of delivery needed to be with her. Hence,
Patna High Court granted bail to him but only on the condition that he had to
furnish a bail bond of Rs. 10,000/- with two sureties of the like amount each
to the satisfaction of the Learned Additional Chief Judicial Magistrate,
Naugachia.
NITYANAND RAI v. STATE OF BIHAR
(2005)
The Bihar High Court has held for the bail to be
cancelled, the grounds must be those which arise after the bail is granted. The
circumstances of the ground needs to mandatory refer the the conduct of the
accused while he is on bail.
ANKIT SHARMA v. STATE OF N.C.T OF
DELHI AND ANR
(2014)
In
this case, the Delhi High Court has distinguished between the two aspects of
bail- cancellation of bail and rejection of bail. The Court has held that the
grounds of both i.e., cancellation and rejection of bail are two different
things. The circumstances of both are quite different. Hence, the Court's
approach has to be distinct while dealing with the two cases.
While
dealing with the hearing of bail application, the focus of the Court is on the
violation of conditions of bail. On the other hand, while dealing with cancellation
of bail, the Court also focuses on whether actual violation has taken place or
not.
GURBAKSH SINGH
SIBBIA v. STATE OF PUNJAB
1980 AIR 1632
The
Apex Court has held that for granting anticipatory bail, the authorities are at
a discretion to do so. This power to grant anticipatory bail has to be exercised
objectively and open to correction by the higher courts. The power conferred
under Section 438 is an extraordinary one. The
power to grant anticipatory bail should be exercised with due care and
circumspection.
The Court consequently
held that
"The question as
regards the interpretation of Section 438 Cr. P.C. did not at all arise in that
case, and that the said case was mainly concerned with Rule 184 of the Defence
and Internal Security of India Rules, 1971, and whether S. 438 applied in such
a situation."
SURESH
CHAND v. STATE OF RAJASTHAN
2001 (2) RLR 757
The
Court held that after the first bail application was rejected under Section 438
CrPC by the Delhi High Court, the second such application is not maintainable.
The power to grant anticipatory bail does not flow from Article 21 of the
Constitution of India. It is merely conferred by the statute. The Court further
observed that the Law Commission's intention was to prevent the provisions of
anticipatory bail from being abused at the instance of unscrupulous petitioners
and this extraordinary remedy has to be restored to only in exceptional cases.
K.L.
VERMA v. STATE AND ANOTHER
(1996) 7 SCALE 20
The
Court made observations on the duration of granting anticipatory bail. It held
that
" Till the bail application is disposed of one way or the other the
court may allow the accused to remain on anticipatory bail.
To put it differently, anticipatory bail may be granted for a
duration which may extend to the date on which the bail application is disposed of or even a few days thereafter to
enable the accused persons to move the higher court, if they so desire. "
RASIKLAL v. KISHORE
KHANCHAND WADHWANI
(2009)
The Court held that in
case of bailable offences, the arrested person's right to claim bail is
absolute and indefeasible. If the bail papers in name of the accused person are
prepared, the police official or Court is bound to release him from their
custody or detention. The only choice available to them is demanding security
in surety and if the accused is willing to abide by reasonable conditions which
may be imposed on him. It held that
Order of granting bail
is judicial act and not ministerial act and thus reasons must form the basis
for any order on bail application.
BALCHAND JAIN v. STATE
OF MADHYA PRADESH
1977 AIR 366
The
Court, in this case, decided upon the object of section 438. It held that the
underlying object of section 438 is that the moment a person is arrested, if he
has already obtained an order from the Sessions Judge or the High Court, he
would be released immediately without having to undergo the rigorous of jail
even for a few days which would necessarily be taken up if he has to apply
for bail after arrest.
SALAUDDIN ABDULSAMAD SHAIKH v. THE STATE OF MAHARASHTRA
(1995)
The
Court held that anticipatory bail is granted in anticipation of arrest in
non-bailable cases, but that does not mean that the regular court, which is to
try the offender, is sought to be by-passed and that is the reason why the High
Court very rightly fixed the outer date for the continuance of the bail and on
the date of its expiry directed the petitioner to move the regular Court for
bail. That is the correct procedure to follow because it must be realized
that when the Court of Session or the High Court is granting anticipatory bail,
it is granted at a stage when the investigation is incomplete and, therefore,
it is not informed about the nature of evidence against the alleged offender.
SANTOSH KUMAR
MANDAL v. STATE
(2016)
The
Court reiterated on bail under POCSO Act. It held that the offence which is
punishable under Section 12 of the Prevention of Children from Sexual offences
Act is a non-bailable offence. Thus, it the accused cannot claim bail under
that section exercising his right to claim bail.
ASHIM
KUMAR VS. STATE OF WEST BENGAL
AIR 1972 SC 2561
Supreme Court laid down that the mere fact that where the concerned person was actually in
jail custody at the time when an order of detention was passed against him and was
not likely to be released for a fair length of time, it would be possible to
contend that there could be no satisfaction on the part of the detaining
authority as to the likelihood of such a person indulging in prejudicial
activities.
H.S. PANNU v. GOVT. OF N.C.T. OF DELHI AND ANR
(2007)
The
Terrorist and Disruptive Activities (Prevention) Act, 1987 was in question. The
designated court did not withstand anything contained to contrary in the CrPC
it obliged by following a different procedure to satisfy itself that there
existed reasonable grounds of the accused not being guilty of the offence and
was unlikely to commit similar offences, if enlarged on bail.
ANIL MAHAJAN v. COMMISSIONER OF CUSTOMS & ANR
2000 CriLJ 2094
The
Court observed that if the legislature wanted the Courts to treat economic
offences differently from other offences in the matter of granting bail, they could have specified some special
provisions which would put limitations on granting bail. But in the absence of
such special provisions, the general
principles governing the grant would apply on the cases involving economic
offences.
V.S. NORTI AND ORS. v. STATE OF KARNATAKA
ILR 1989 KAR 943
The Karnataka High Court held that "it cannot be said that the principle laid down by the Supreme Court that in a murder case when the investigation is still incomplete anticipatory bail should not be granted to be a principle laid down as applicable to the facts in the case. It cannot also be said that the principle laid down is governed or qualified by the particular facts in the said case. The Supreme Court stated the principle as a rule of law, applied it to the case before it and acted on it. It clearly held that the principle governs a case in which the applicant seeking anticipatory bail is accused of the offence of murder and in which the investigation is incomplete."
यह वीडियो 'हमारा कानून' परियोजना का हिस्सा है, जो सरल भाषा में कुछ मुख्य कानूनों की व्याख्या करता है। इसका उद्देश्य लोगों के लिए कानूनों को सुलभ बनाना और कानूनी जागरूकता पैदा करना है। यह वीडियो भारत में read more
यह वीडियो 'हमारा कानून' परियोजना का हिस्सा है, जो सरल भाषा में कुछ मुख्य कानूनों की व्याख्या करता है। इसका उद्देश्य लोगों के लिए कानूनों को सुलभ बनाना और कानूनी जागरूकता पैदा करना है। यह वीडियो भारत में सिविल कानून में अपील पर कानून की जानकारी देता है।
1.Smt. Asha Baldwa v. Ram GopalThis is one of the landmark judgments in Section 138. The petitioner had filed a petition under Section 482, CrPC to quash the proceedings instituted against him for read more
1.Smt. Asha Baldwa v. Ram Gopal
This is one of the landmark judgments in Section
138. The petitioner had filed a petition under Section 482, CrPC to quash the
proceedings instituted against him for
committing an offence under section 138. He was alleged to have handed over the
dishonored cheque to the respondent . She consented to such giving of the
cheque. Hence, she is responsible for the consequences of giving the cheque.
The contention of the petitioner was that in
accordance with Section 141(2) of the Negotiable Instruments Act, 1881, the
allegations can be made against the Company only or its Partners or Directors only
when the offence was committed with the consent or connivance or, is
attributable to, any neglect on the part of, any director, manager, secretary
or partners.
The Court held that the aim is that the person who
promises to pay abides by his promise. Section 139 provides that it shall be
presumed that the holder of a cheque received the cheque of the
nature referred to in Section 138 of NI
Act for
the discharge, in whole or in part, of any debt or other liability.
Canara Bank vs Canara Sales
Corporation & Ors.
The Supreme Court looked into the matter of cheque being presented for
encashment and containing forged signatures.
It held that in cases where a cheque is presented for encashment but has
forged signatures on it, the bank is freed from is legal liability of making
any sort of payment against such cheque. If the bank made any payments in favor
of such cheques, it would be concluded that the bank has acted anti-law by debiting
the customer with amounts of the cheque.
Dalmia
Cement Ltd. V. Galaxy Traders & Agencies Ltd.
Criminal
Appeal No.957 of 2000
In this case the Hon’ble Supreme Court
of India referred to the object of section 138 of Negotiable Instrument Act.
The court observed that when the act was enacted, section 138 was incorporated
with a specified object of making a special provision by incorporating a strict
liability so far as the cheque as negotiable instrument was concerned.
Kishan Rao v. Shankargouda
The Supreme Court has reiterated on the scope of revisional jurisdiction
of a High Court.
The Court held that the High Court is not to interfere with any of the Magistrate's
order unless it seems to be completely unreasonable or there is no
consideration of relevant material. Also, the Magistrate's order cannot be set
aside on the mere ground that no other view on the issue is possible.
Jayalakshmi Nataraj v. Jeena &
Co. (1996)
In
this case, the Court adjudicated upon a Managing Director's liability under
Section 138 of the Negotiable Instrument Act of 1881. It held that even though
the Managing Director does not administer the day to day activities of the
company, he/she can still be held guilty irrespective of the fact that he/she
was unaware of the affairs.
Modi Cements Limited v. Kuchil Kumar
Nandi (1998) 3 SCC 249
A three Judge bench of the Supreme Court held that even if a notice is issued to stop the payment of money before the payee has deposited the cheque with his bank, the act of crime is committed. Once the cheque is issued by the drawer, it must be presumed that just because a notice is issued by the drawer to the drawee or to the Bank, it will not stop action under section 138 by the holder of the cheque in due course. Thus, defense under strict interpretation of “insufficiency of funds” stands weak to some extent.
M/s Meters and Instruments Private
Limited & Anr. v. Kanchan Mehta
A bench of Supreme Court comprising of two Judges made some points clear
regarding dishonor of cheque. Directions were also issued for speedy trial of such cases under Section
138 of the Act of 1881.
Modern technologies were opined to be adopted to enable speedy disposal
of the Section 138 cases. The Court noted that:
"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."
The Gujarat High Court held that though the element
of mens rea is not important under Section 138, such element must be presumed
to exist at the instance of every case. This means that the question whether
mens rea should be considered or not while adjudicating, varies from case to
case depending on their circumstances.
Another landmark judgment was passed by the Delhi High Court. In this case, the Court drew a distinction between traditional criminal cases and offence under Section 138. The purpose of such distinction was to validate that it is very much within the laws to refer a case of Section 138 for mediation.
Premchand Vijay Kumar v. Yashpal Singh
In this case of Premchand it was held by the Apex Court that upon a notice under section 138 of Negotiable Instrument Act being issued, a subsequent presentation of a cheque and its dishonour would not create another ‘cause of action’ which could set the section 138 machinery in motion. Only 4 Bhaskaran concomitants were spelt out in this judgement instead of 5.
Chandrabolu
Bhaskararao’s case
In the case of Chandrabolu, it was held by the High Court of Andhra Pradesh that it is not mandatory for promissory note to be an attestable document even if the signatures of the attesters are taken and after its execution it does not amount the material alteration. So it does not get quashed. So therefore, whether there were attesters or not at the time of its execution is immaterial, more so when its execution is admitted.
Bhutoria
trading co. v. Allahabad Bank
It was pointed out by the Hon’ble court that where there are no circumstances that afforded any reasonable ground for believing that the payee was not entitled to receive payment of the cheques, the bank is deemed to have payment in due course.
Bhaskaran v. Shankaran Vaidhyan Balan
In this case, the Two-Judge Bench of the Supreme Court had held that the offence under Section 138 of NI Act can be completed only with the concatenation of a number of acts. However, this ruling was overruled by Supreme Court’s judgment in Dashrath Roop Singh case.
Dashrath
Roopsingh Rathod v. State of Maharashtra
A strict approach was applied by the Apex Court in its new judgement which sought to discourage the payer for misusing or carelessly issuing cheques. Thus, due sympathy was shown or given to the drawer.
Infact in this case it was observed by the Supreme Court of India that courts have been enjoined to interpret the law to eradicate ambiguity, and to ensure that legal proceedings have not been used as a device for harassment even of apparent transgressor of law.
M.M.T.C. Ltd. and Anr. Vs Medchl Chemicals and Pharma
(P) Ltd. and Anr. ( AIR 2002 SC182)
The Apex Court held that even though the cheque stands dishonored, the drawer of the cheque is to be held guilty as a complaint under Section 138 is maintainable. The burden of proof lies on the accused to show that he had issued an instruction to stop the payment because of valid reasons. In other words, the presumption as to existence of legally enforceable debt is rebut table as per Section 139. It further held that even a payee or the holder in due course of the cheque can file a complaint under Section 142 of NI Act and it need not necessarily be by a Director or duly authorized officer as the defect can be cured later. Complaint cannot be quashed.
Case Summary and OutcomeA bench of 9 judges of the Supreme Court of India held with majority ratio of 6:1 that the right to privacy was a constitutionally protected right in India, as well as somewhat read more
A bench of 9 judges of the Supreme Court of India held with majority ratio of 6:1 that the right to privacy was a constitutionally protected right in India, as well as somewhat similar to other freedoms guaranteed by the Indian Constitution. Retired High Court Judge Puttaswamy brought this case to the Supreme Court and challenged the Government’s proposal for a uniform biometrics-based identity card which would be compulsory for access to government services and benefits. The Government argued that the Constitution of India did not provide precise protection for the right to privacy. The Court presented their case relying on the argument that that privacy is an incident of fundamental freedom or liberty which is provided to every Indian under Article 21 which says that: “No person shall be deprived of his life or personal liberty except according to procedure established by law” Justice. K.S.Puttaswamy (Retd) vs Union Of India is a landmark case which will challenge some constitutional provisions to a wide range of Indian legislation. Observers are also expecting from Indian Government to establish a data protection regime to protect the privacy of the individual. This case has a very wider significance as it is used by privacy campaigners as a tool to pursue the constitutional debate over privacy in other countries.
Facts of
the case
This case was brought before the Supreme Court of
India by a 91-year old retired High Court Judge Puttaswamy against the Union of
India (the Government of India) before a nine-judge bench of the Supreme Court
and this bench had been set up on reference from the Constitution Bench to find
out whether the right to privacy was guaranteed as an independent fundamental
right following many conflicting judgements from other Supreme Court benches.
In this
case government’s Aadhaar scheme (a form of uniform biometrics-based identity
card) was challenged, and government made this proposal for making it
compulsory for access to government services and benefits. The challenge was
brought before a bench of three judges of the Supreme Court by relying their
argument on the point that this scheme violated the right to privacy. However,
the Attorney General of India stated on behalf of the Union of India that
Constitution of India does not provide specific protection for the right to
privacy. He based this on observations made in the case of M.P. Sharma v. Satish Chandra (an
eight-judge bench) and Kharak
Singh v. Uttar Pradesh (a five-judge bench). However following this
hearing an eleven-judge bench found that fundamental rights were not to be
considered as different, unrelated rights, thereby upholding the dissenting
view in Kharak Singh. This
also made the base of later decisions by smaller benches of the Supreme Court
which expressly recognized the right to privacy.
Due to these cases a Constitution Bench was again
construed and held that a bench of 9 judges are required to determine whether
there was a fundamental right to privacy within the Constitution.
It was argued by Judge Puttaswamy before the bench
of 9 judgesthat this right was an independent right, guaranteed by the right to
life with dignity under Article 21 of the Constitution. The Respondent
submitted that the Constitution only recognized personal liberties which may
incorporate the right to privacy to a limited extent. The Court considered
detailed arguments on the nature of fundamental rights, constitutional
interpretation and the theoretical and philosophical bases for the right to
privacy as well as the nature of this right.
Ratio of the Case
The Puttaswamy judgment is a landmark
judgment. The main holding of the case is that right to privacy is being
protected under Articles 14, 19 and 21 of the Constitution of India.
The judgment contains 6
concurring opinions which affirm to the right top privacy. The previous
judgments in Kharak Singh vs. State of UP and M.P Sharma v
Union of India have been overruled
by the constitution bench of Supreme Court.
The decision of the Supreme Court bench was unanimous in guaranteeing
right to privacy as an intrinsic part of the right to life and personal liberty
under Article 21.
It was a 9 Judge bench of the Hon’ble Supreme Court which recognized
such right to privacy.
The bench reinforced the right to privacy. The bench held that right to
privacy includes
1. Autonomy over personal decisions.
2. Bodily integrity
3. The protection of personal information
The examples given by the bench were consumption of beef, reproductive
rights and privacy of health records.
The implications of the much
discussed right were also discussed as below:
Justic Chandrachud:
In his opinion,
privacy is not surrendered fully when an individual is at public places. Moreover,
right to privacy is dual faced. It is a negative one because such right is
against the State. The positivity of such right is that State protects some
instances like homosexuality. Thus, there is a dire need for introduction of a
regime which would protect data.
Justice Chelameswar:
Right to
privacy implies right of refusing medical treatment, against forced feeding, of
consuming beef and to display symbols of religion in one’s personal appearance
etc.
Justice Bobde:
In his
opinion, it is of utmost importance to obtain consent for the purposes of
distributing personal data, especially which is inherent in nature. For
example, health records of an individual are completely directional as to
whether he/she wants his/her medical history or disease be made known to the
public or not.
Justice Nariman:
Justice
concurred the opinion and he clarified that the facets of privacy into
non-interference with the individual body, protection of personal information
and autonomy over personal choices.
Justice Sapre:
In his
view, right to privacy also includes an individual person’s right to freedom of
expression and movement. Such right is essential as they ensured dignity of a
person by satisfying the constitutional aims of liberty and fraternity.
Justice Kaul:
Justice related right to privacy with the need
for protection of informational privacy and the right to preserve personal
reputation. He opined that there has to be some law which would provide for
data protection and regulation of national security exceptions that allow for
interception of data by the State.
Apart
from the above specific opinions, the Court also gave recognition to the fact
that right to privacy along with being absolute, also allowed for restrictions legally
imposed. This adheres to the aim of the State.
Implications of the Case
The
implication of the Puttaswamy case
is that ‘freedom of expression’ is expanded. Privacy is now recognized as a
right which is independently enforceable by the Courts of Law.
Certain
rights now protected by the Indian law, such as
1. right against arbitrary, unregulated State
surveillance;
2. the right to express one’s sexual orientation,
religious expression and data protection.
Conclusion
The historic 9 Judge Bench has given the judgment in the present case.
Therefore, the judgment becomes a binding one on all the Courts of law. The
judgment can be overruled only by a judgment which is given by a bench larger
than 9 Judges.
Another point to be noted is that the scope of right to privacy has been
widened by the Bench. This would definitely provide assistance to the people
who come up and speak on privacy.
The overall holding of
the judgment is that right to privacy emerges from Article 21. It should meet
the threefold requirement
1.
Legality;
2.
Need
for a legitimate aim;
3.
Proportionality
Informational privacy is a part of right to privacy. The Government will have to act upon a regime for data protection.

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5. Any Registered User/ Consultant wishes to discontinue with this, such Registered User/ Consultant shall send email to SoOLEGAL and such account will be closed and all credits will be refunded to such Registered User/ Consultant after deducation of all taxes and applicable fees within 30 days. Other than as described in the Fulfilment by SoOLEGAL Terms & Conditions (if applicable to you), for the SoOLEGAL Site for which you register or use the Transacting on SoOLEGAL Service, you will: (a) source, fulfil and transact with your Documents/ Advices, in each case in accordance with the terms of the applicable Order Information, these Transaction Terms & Conditions, and all terms provided by you and displayed on the SoOLEGAL Site at the time of the order and be solely responsible for and bear all risk for such activities; (a) not cancel any of Your Transactions except as may be permitted pursuant to your Terms & Conditions appearing on the SoOLEGAL Site at the time of the applicable order (which Terms & Conditions will be in accordance with Transaction Terms & Conditions) or as may be required Transaction Terms & Conditions per the terms laid in this Documents/ Advice; in each case as requested by us using the processes designated by us, and we may make any of this information publicly available notwithstanding any other provision of the Terms mentioned herein, ensure that you are the REGISTERED USER of all Documents/ Advices made available for listing for Transaction hereunder; identify yourself as the REGISTERED USER of the Documents/ Advices on all downloads or other information included with Your Documents/ Advices and as the Person to which a customer may return the applicable Documents/ Advices; and
S-2.2 Returns and Refunds. For all of Your Documents/ Advices that are not fulfilled using Fulfilment by SoOLEGAL, you will accept and process returns, refunds and adjustments in accordance with these Transaction Terms & Conditions and the SoOLEGAL Refund Policies published at the time of the applicable order, and we may inform customers that these policies apply to Your Documents/ Advices. You will determine and calculate the amount of all refunds and adjustments (including any taxes, shipping of any hard copy and handling or other charges) or other amounts to be paid by you to customers in connection with Your Transactions, using a functionality we enable for Your Account. This functionality may be modified or discontinued by us at any time without notice and is subject to the Program Policies and the terms of thisTransaction Terms & Conditions Documents/ Advice. You will route all such payments through SoOLEGAL We will provide any such payments to the customer (which may be in the same payment form originally used to purchase Your Documents/ Advices), and you will reimburse us for all amounts so paid. For all of Your Documents/ Advices that are fulfilled using Fulfilment by SoOLEGAL, the SoOLEGAL Refund Policies published at the time of the applicable order will apply and you will comply with them. You will promptly provide refunds and adjustments that you are obligated to provide under the applicable SoOLEGAL Refund Policies and as required by Law, and in no case later than thirty (30) calendar days following after the obligation arises. For the purposes of making payments to the customer (which may be in the same payment form originally used to purchase Your Documents/ Advices), you authorize us to make such payments or disbursements from your available balance in the Nodal Account (as defined in Section S-6). In the event your balance in the Nodal Account is insufficient to process the refund request, we will process such amounts due to the customer on your behalf, and you will reimburse us for all such amount so paid.
S-5. Compensation
You will pay us: (a) the applicable Referral Fee; (b) any applicable Closing Fees; and (c) if applicable, the non-refundable Transacting on SoOLEGAL Subscription Fee in advance for each month (or for each transaction, if applicable) during the Term of this Transaction Terms & Conditions. "Transacting on SoOLEGAL Subscription Fee" means the fee specified as such on the Transacting on SoOLEGALSoOLEGAL Fee Schedule for the SoOLEGAL Site at the time such fee is payable. With respect to each of Your Transactions: (x) "Transactions Proceeds" has the meaning set out in the Transaction Terms & Conditions; (y) "Closing Fees" means the applicable fee, if any, as specified in the Transacting on SoOLEGAL Fee Schedule for the SoOLEGAL Site; and (z) "Referral Fee" means the applicable percentage of the Transactions Proceeds from Your Transaction through the SoOLEGAL Site specified on the Transacting on SoOLEGAL Fee Schedule for the SoOLEGAL Site at the time of Your Transaction, based on the categorization by SoOLEGAL of the type of Documents/ Advices that is the subject of Your Transaction; provided, however, that Transactions Proceeds will not include any shipping charge set by us in the case of Your Transactions that consist solely of SoOLEGAL-Fulfilled Documents/ Advices. Except as provided otherwise, all monetary amounts contemplated in these Service Terms will be expressed and provided in the Local Currency, and all payments contemplated by this Transaction Terms & Conditions will be made in the Local Currency.
All taxes or surcharges imposed on fees payable by you to SoOLEGAL will be your responsibility.
S-6 Transactions Proceeds & Refunds.
S-6.1.Nodal Account. Remittances to you for Your Transactions will be made through a nodal account (the "Nodal Account") in accordance with the directions issued by Reserve Bank of India for the opening and operation of accounts and settlement of payments for electronic payment transactions involving intermediaries vide its notification RBI/2009-10/231 DPSS.CO.PD.No.1102 / 02.14.08/ 2009-10 dated November 24, 2009. You hereby agree and authorize us to collect payments on your behalf from customers for any Transactions. You authorize and permit us to collect and disclose any information (which may include personal or sensitive information such as Your Bank Account information) made available to us in connection with the Transaction Terms & Conditions mentioned hereunder to a bank, auditor, processing agency, or third party contracted by us in connection with this Transaction Terms & Conditions.
Subject to and without limiting any of the rights described in Section 2 of the General Terms, we may hold back a portion or your Transaction Proceeds as a separate reserve ("Reserve"). The Reserve will be in an amount as determined by us and the Reserve will be used only for the purpose of settling the future claims of customers in the event of non-fulfillment of delivery to the customers of your Documents/ Advices keeping in mind the period for refunds and chargebacks.
S-6.2. Except as otherwise stated in this Transaction Terms & Conditions Documents/ Advice (including without limitation Section 2 of the General Terms), you authorize us and we will remit the Settlement Amount to Your Bank Account on the Payment Date in respect of an Eligible Transaction. When you either initially provide or later change Your Bank Account information, the Payment Date will be deferred for a period of up to 14 calendar days. You will not have the ability to initiate or cause payments to be made to you. If you refund money to a customer in connection with one of Your Transactions in accordance with Section S-2.2, on the next available Designated Day for SoOLEGAL Site, we will credit you with the amount to us attributable to the amount of the customer refund, less the Refund Administration Fee for each refund, which amount we may retain as an administrative fee.
"Eligible Transaction" means Your Transaction against which the actual shipment date has been confirmed by you.
"Designated Day" means any particular Day of the week designated by SoOLEGAL on a weekly basis, in its sole discretion, for making remittances to you.
"Payment Date" means the Designated Day falling immediately after 14 calendar days (or less in our sole discretion) of the Eligible Transaction.
"Settlement Amount" means Invoices raised through SoOLEGAL Platform (which you will accept as payment in full for the Transaction and shipping and handling of Your Documents/ Advices), less: (a) the Referral Fees due for such sums; (b) any Transacting on SoOLEGAL Subscription Fees due; (c) taxes required to be charged by us on our fees; (d) any refunds due to customers in connection with the SoOLEGAL Site; (e) Reserves, as may be applicable, as per this Transaction Terms & Conditions; (f) Closing Fees, if applicable; and (g) any other applicable fee prescribed under the Program Policies. SoOLEGAL shall not be responsible for
S-6.3. In the event that we elect not to recover from you a customer's chargeback, failed payment, or other payment reversal (a "Payment Failure"), you irrevocably assign to us all your rights, title and interest in and associated with that Payment Failure.
S-7. Control of Site
Notwithstanding any provision of this Transaction Terms & Conditions, we will have the right in our sole discretion to determine the content, appearance, design, functionality and all other aspects of the SoOLEGAL Site and the Transacting on SoOLEGAL Service (including the right to re-design, modify, remove and alter the content, appearance, design, functionality, and other aspects of, and prevent or restrict access to any of the SoOLEGAL Site and the Transacting on SoOLEGAL Service and any element, aspect, portion or feature thereof (including any listings), from time to time) and to delay or suspend listing of, or to refuse to list, or to de-list, or require you not to list any or all Documents/ Advices on the SoOLEGAL Site in our sole discretion.
S-8. Effect of Termination
Upon termination of this Contract, the Transaction Terms & Conditions automatiocally stands terminated and in connection with the SoOLEGAL Site, all rights and obligations of the parties under these Service Terms with regard to the SoOLEGAL Site will be extinguished, except that the rights and obligations of the parties with respect to Your Transactions occurring during the Term will survive the termination or expiration of the Term.
"SoOLEGAL Refund Policies" means the return and refund policies published on the SoOLEGAL Site.
"Required Documents/ Advices Information" means, with respect to each of Your Documents/ Advices in connection with the SoOLEGAL Site, the following (except to the extent expressly not required under the applicable Policies) categorization within each SoOLEGAL Documents/ Advices category and browse structure as prescribed by SoOLEGAL from time to time, Purchase Price; Documents/ Advice Usage, any text, disclaimers, warnings, notices, labels or other content required by applicable Law to be displayed in connection with the offer, merchandising, advertising or Transaction of Your Documents/ Advices, requirements, fees or other terms and conditions applicable to such Documents/ Advices that a customer should be aware of prior to purchasing the Documents/ Advices;
"Transacting on SoOLEGAL Launch Date" means the date on which we first list one of Your Documents/ Advices for Transaction on the SoOLEGAL Site.
"URL Marks" means any Trademark, or any other logo, name, phrase, identifier or character string, that contains or incorporates any top level domain (e.g., .com, co.in, co.uk, .in, .de, .es, .edu, .fr, .jp) or any variation thereof (e.g., dot com, dotcom, net, or com).
"Your Transaction" is defined in the Transaction Terms & Conditions; however, as used in Terms & Conditions, it shall mean any and all such transactions whereby you conduct Transacting of Documents/ Advices or advice sought from you by clients/ customers in writing or by any other mode which is in coherence with SoOLEGAL policy on SoOLEGAL site only.
Taxes on Fees Payable to SoOLEGAL. In regard to these Service Terms you can provide a PAN registration number or any other Registration/ Enrolment number that reflects your Professional capacity by virtue of various enactments in place. If you are PAN registered, or any professional Firm but not PAN registered, you give the following warranties and representations:
(a) all services provided by SoOLEGAL to you are being received by your establishment under your designated PAN registration number; and
SoOLEGAL reserves the right to request additional information and to confirm the validity of any your account information (including without limitation your PAN registration number) from you or government authorities and agencies as permitted by Law and you hereby irrevocably authorize SoOLEGAL to request and obtain such information from such government authorities and agencies. Further, you agree to provide any such information to SoOLEGAL upon request. SoOLEGAL reserves the right to charge you any applicable unbilled PAN if you provide a PAN registration number, or evidence of being in a Professional Firm, that is determined to be invalid. PAN registered REGISTERED USERs and REGISTERED USERs who provide evidence of being in Law Firm agree to accept electronic PAN invoices in a format and method of delivery as determined by SoOLEGAL.
All payments by SoOLEGAL to you shall be made subject to any applicable withholding taxes under the applicable Law. SoOLEGAL will retain, in addition to its net Fees, an amount equal to the legally applicable withholding taxes at the applicable rate. You are responsible for deducting and depositing the legally applicable taxes and deliver to SoOLEGAL sufficient Documents/ Advice evidencing the deposit of tax. Upon receipt of the evidence of deduction of tax, SoOLEGAL will remit the amount evidenced in the certificate to you. Upon your failure to duly deposit these taxes and providing evidence to that effect within 5 days from the end of the relevant month, SoOLEGAL shall have the right to utilize the retained amount for discharging its tax liability.
Where you have deposited the taxes, you will issue an appropriate tax withholding certificate for such amount to SoOLEGAL and SoOLEGAL shall provide necessary support and Documents/ Adviceation as may be required by you for discharging your obligations.
SoOLEGAL has the option to obtain an order for lower or NIL withholding tax from the Indian Revenue authorities. In case SoOLEGAL successfully procures such an order, it will communicate the same to you. In that case, the amounts retained, shall be in accordance with the directions contained in the order as in force at the point in time when tax is required to be deducted at source.
Any taxes applicable in addition to the fee payable to SoOLEGAL shall be added to the invoiced amount as per applicable Law at the invoicing date which shall be paid by you.F.11. Indemnity
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Category and Documents/ Advice RestrictionsCertain Documents/ Advices cannot be listed or sold on SoOLEGAL site as a matter of compliance with legal or regulatory restrictions (for example, prescription drugs) or in accordance with SoOLEGAL policy (for example, crime scene photos). SoOLEGAL's policies also prohibit specific types of Documents/ Advice content. For guidelines on prohibited content and copyright violations, see our Prohibited Content list. For some Documents/ Advice categories, REGISTERED USERS may not create Documents/ Advice listings without prior approval from SoOLEGAL. |
In addition to your obligations under Section 6 of the Transaction Terms & Conditions, you also agree to indemnify, defend and hold harmless us, our Affiliates and their and our respective officers, directors, employees, representatives and agents against any Claim that arises out of or relates to: (a) the Units (whether or not title has transferred to us, and including any Unit that we identify as yours pursuant to Section F-4 regardless of whether such Unit is the actual item you originally sent to us), including any personal injury, death or property damage; and b) any of Your Taxes or the collection, payment or failure to collect or pay Your Taxes.
Registered Users must at all times adhere to the following rules for the Documents/ Advices they intend to put on Transaction:
The "Add a Documents/ Advice" feature allows REGISTERED USERS to create Documents/ Advice details pages for Documents/ Advices.
The following rules and restrictions apply to REGISTERED USERS who use the SoOLEGAL.in "Add a Documents/ Advice" feature.
Using this feature for any purpose other than creating Documents/ Advice details pages is prohibited.
Any Documents/ Advice already in the SoOLEGAL.in catalogue which is not novel and/ or unique or has already been provided by any other Registered User which may give rise to Intellectual Property infringement of any other Registered User is prohibited.
Detail pages may not feature or contain Prohibited Content or .
The inclusion of any of the following information in detail page titles, descriptions, bullet points, or images is prohibited:
Information which is grossly harmful, harassing, blasphemous, defamatory, pedophilic, libelous, invasive of another's privacy, hateful, or racially, ethnically objectionable, disparaging, relating or encouraging money laundering or gambling, pornographic, obscene or offensive content or otherwise unlawful in any manner whatever.
Availability, price, condition, alternative ordering information (such as links to other websites for placing orders).
Reviews, quotes or testimonials.
Solicitations for positive customer reviews.
Advertisements, promotional material, or watermarks on images, photos or videos.
Time-sensitive information
Information which belongs to another person and to which the REGISTERED USER does not have any right to.
Information which infringes any patent, trademark, copyright or other proprietary rights.
Information which deceives or misleads the addressee about the origin of the messages or communicates any information which is grossly offensive or menacing in nature.
Information which threatens the unity, integrity, defence, security or sovereignty of India, friendly relations with foreign states, or public order or causes incitement to the commission of any cognizable offence or prevents investigation of any offence or is insulting any other nation.
Information containing software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer resource.
Information violating any law for the time being in force.
All Documents/ Advices should be appropriately and accurately classified to the most specific location available. Incorrectly classifying Documents/ Advices is prohibited.
Documents/ Advice titles, Documents/ Advice descriptions, and bullets must be clearly written and should assist the customer in understanding the Documents/ Advice. .
All Documents/ Advice images must meet SoOLEGAL general standards as well as any applicable category-specific image guidelines.
Using bad data (HTML, special characters */? etc.) in titles, descriptions, bullets and for any other attribute is prohibited.
Do not include HTML, DHTML, Java, scripts or other types of executables in your detail pages.
Prohibited REGISTERED USER Activities and Actions
SoOLEGAL.com REGISTERED USER Rules are established to maintain a transacting platform that is safe for buyers and fair for REGISTERED USERS. Failure to comply with the terms of the REGISTERED USER Rules can result in cancellation of listings, suspension from use of SoOLEGAL.in tools and reports, or the removal of transacting privileges.
Attempts to divert transactions or buyers: Any attempt to circumvent the established SoOLEGAL Transactions process or to divert SoOLEGAL users to another website or Transactions process is prohibited. Specifically, any advertisements, marketing messages (special offers) or "calls to action" that lead, prompt, or encourage SoOLEGALusers to leave the SoOLEGAL website are prohibited. Prohibited activities include the following:
The use of e-mail intended to divert customers away from the SoOLEGAL.com Transactions process.
Unauthorised & improper "Names": A REGISTERED USER's Name (identifying the REGISTERED USER's entity on SoOLEGAL.com) must be a name that: accurately identifies the REGISTERED USER; is not misleading: and the REGISTERED USER has the right to use (that is, the name cannot include the trademark of, or otherwise infringe on, any trademark or other intellectual property right of any person). Furthermore, a REGISTERED USER cannot use a name that contains an e-mail suffix such as .com, .net, .biz, and so on.
Unauthorised & improper invoicing: REGISTERED USERS must ensure that the tax invoice is raised in the name of the end customer who has placed an order with them through SoOLEGAL Payment Systems platform . The tax invoice should not mention SoOLEGAL as either a REGISTERED USER or a customer/buyer. Please note that all Documents/ Advices listed on SoOLEGAL.com are sold by the respective REGISTERED USERS to the end customers and SoOLEGAL is neither a buyer nor a REGISTERED USER in the transaction. REGISTERED USERS need to include the PAN/ Service Tax registration number in the invoice.
Inappropriate e-mail communications: All REGISTERED USER e-mail communications with buyers must be courteous, relevant and appropriate. Unsolicited e-mail communications with SoOLEGAL , e-mail communications other than as necessary and related customer service, and e-mails containing marketing communications of any kind (including within otherwise permitted communications) are prohibited.
Operating multiple REGISTERED USER accounts: Operating and maintaining multiple REGISTERED USER accounts is prohibited.
In your request, please provide an explanation of the legitimate business need for a second account.
Misuse of Search and Browse: When customers use SoOLEGAL's search engine and browse structure, they expect to find relevant and accurate results. To protect the customer experience, all Documents/ Advice-related information, including keywords and search terms, must comply with the guidelines provided under . Any attempt to manipulate the search and browse experience is prohibited.
Misuse
of the ratings, feedback or Documents/ Advice reviews: REGISTERED
USERS cannot submit abusive or inappropriate feedback entries,
coerce or threaten buyers into submitting feedback, submit
transaction feedback regarding them, or include personal information
about a transaction partner within a feedback entry. Furthermore,
any attempt to manipulate ratings of any REGISTERED USER is
prohibited. Any attempt to manipulate ratings, feedback, or
Documents/ Advice reviews is prohibited.
Reviews: Reviews
are important to the SoOLEGAL Platform, providing a forum for
feedback about Documents/ Advice and service details and reviewers'
experiences with Documents/ Advices and services –
positive
or negative. You may not write reviews for Documents/ Advices or
services that you have a financial interest in, including reviews
for Documents/ Advices or services that you or your competitors deal
with. Additionally, you may not provide compensation for a review
(including free or discounted Documents/ Advices). Review
solicitations that ask for only positive reviews or that offer
compensation are prohibited. You may not ask buyers to modify or
remove reviews.
Prohibited Content
REGISTERED USERS are expected to conduct proper research to ensure that the items posted to our website are in compliance with all applicable laws. If we determine that the content of a Documents/ Advice detail page or listing is prohibited, potentially illegal, or inappropriate, we may remove or alter it without prior notice. SoOLEGAL reserves the right to make judgments about whether or not content is appropriate.
The
following list of prohibited Documents/ Advices comprises two
sections: Prohibited Content and Intellectual Property
Violations.
Listing
prohibited content may result in the cancellation of your listings,
or the suspension or removal of your transacting privileges.
REGISTERED USERS are responsible for ensuring that the Documents/
Advices they offer are legal and authorised for Transaction or
re-Transaction.
If
we determine that the content of a Documents/ Advice detail page or
listing is prohibited, potentially illegal, or inappropriate, we may
remove or alter it without prior notice. SoOLEGAL reserves the right
to make judgments about whether or not content is appropriate.
Illegal and potentially illegal Documents/ Advices: Documents/ Advices sold on SoOLEGAL.in must adhere to all applicable laws. As REGISTERED USERS are legally liable for their actions and transactions, they must know the legal parameters surrounding any Documents/ Advice they display on our website.
Offensive material: SoOLEGAL reserves the right to determine the appropriateness of listings posted to our website.
Nudity: In general, images that portray nudity in a gratuitous or graphic manner are prohibited.
Items that infringe upon an individual's privacy. SoOLEGAL holds personal privacy in the highest regard. Therefore, items that infringe upon, or have potential to infringe upon, an individual's privacy are prohibited.
Intellectual Property Violations
Counterfeit merchandise: Documents/ Advices displayed on our website must be authentic. Any Documents/ Advice that has been illegally replicated, reproduced or manufactured is prohibited.
Books - Unauthorised copies of books are prohibited.
Movies - Unauthorised copies of movies in any format are prohibited. Unreleased/prereleased movies, screeners, trailers, unpublished and unauthorized film scripts (no ISBN number), electronic press kits, and unauthorised props are also prohibited.
Photos - Unauthorised copies of photos are prohibited.
Television Programs - Unauthorised copies of television Programs (including pay-per-view events), Programs never broadcast, unauthorised scripts, unauthorised props, and screeners are prohibited.
Transferred media. Media transferred from one format to another is prohibited. This includes but is not limited to: films converted from NTSC to Pal and Pal to NTSC, laserdisc to video, television to video, CD-ROM to cassette tape, from the Internet to any digital format, etc.
Promotional media: Promotional versions of media Documents/ Advices, including books (advance reading copies and uncorrected proofs), music, and videos (screeners) are prohibited. These Documents/ Advices are distributed for promotional consideration and generally are not authorized for Transaction.
Rights of Publicity: Celebrity images and/or the use of celebrity names cannot be used for commercial purposes without permission of a celebrity or their management. This includes Documents/ Advice endorsements and use of a celebrity's likeness on merchandise such as posters, mouse pads, clocks, image collections in digital format, and so on.
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