·         What is a License Agreement?

·         What is a Lease?

·         Difference between Leave & License and Lease Agreement

·         How to distinguish Lease from License or vice-versa

1.     What is a License Agreement?

A "license", as described by Black's Law Dictionary, is the right to perform a certain act or set of acts on someone else's property without owning any estate therein. According to the Oxford Dictionary of Law, under a License it is permissible to enter or occupy someone else's property for a predetermined reason.

While various courts have elaborated on the legal concept from time to time, the basis of the leave and license agreement can be found in the Indian Easements Act of 1882. Section 52 of the Indian Easements Act states, "Where one person grants to another, or to a definite number of other persons, a right to do, or continue to do, in or upon the grantor's immovable property, something which would, in the absence of such right, be unlawful, and such right does not amount to an easement or an interest in the property, the right is called a license."

2.     What is a Lease?

According to Black's Law Dictionary, a "Lease" is a conveyance of lands or tenements to a person for life, for a certain period of time, or at will in exchange for rent or another kind of payment. It is described as "a contract in which a property owner provides another person exclusive ownership of the property for an established duration, in exchange for rent and occasionally for a capital payment known as a premium," according to the Oxford Dictionary of Law.

Lease has been defined in Section 105 of the Transfer of Property Act, 1882 which states, “A lease of immovable property is a transfer of a right to enjoy such property, made for a certain time, express or implied, or in perpetuity, in consideration of a price paid or promised, or of money, a share of crops, service or any other thing of value, to be rendered periodically or on specified occasions to the transferor by the transferee, who accepts the transfer on such terms”.

3.      Difference between Leave & License and Lease Agreement?

The distinction between a license and a lease is that a lease is not a mere contract but envisages and transfers an interest in the demised property by creating a right in favor of lessee in rem. License would only make an action lawful which without it would be unlawful but not transfer any interest in favor of licensee in respect of the property. This has been observed in Mangal Amusement Park (P) Ltd v. State of Madhya Pradesh AIR 2012 SC 3325.

As was also observed in C.M. Beena v. P.N. Ramachandra Rao, (2004) 3 SCC 595, “Generally speaking, the difference between a “lease” and “licence” is to be determined by finding out the real intention of the parties as decipherable from a complete reading of the document, if any, executed between the parties and the surrounding circumstances. Only a right to use the property in a particular way or under certain terms given to the occupant while the owner retains the control or possession over the premises results in a licence being created; for the owner retains legal possession while all that the licensee gets is a permission to use the premises for a particular purpose or in a particular manner and but for the permission so given the occupation would have been unlawful”

Differences between Lease and License are enumerated herein:

4.      How to distinguish Lease from License or vice-versa?

The basis for determining whether the agreement that has been made between the parties is a lease or not is the real intention of the parties. in C.M. Beena v. P.N. Ramachandra Rao (Supra) the Supreme Court stated that "the difference between a lease and a licence is to be determined by finding out the real intention of the parties as decipherable from a complete reading of the document, if any, executed between the parties and the surrounding circumstances" . The court further noted that it is important to consider the actions of the parties both before and after the establishment of a relationship in order to determine their intentions. The Hon’ble Apex court has held similar views in various consequent judgments as well.

This concept was first discussed in Associated Hotels of India Ltd. v. R.N. Kapoor, (1960) 1 SCR 368 wherein it was observed in Para 28 that, “The following propositions may, therefore, be taken as well established : (1) To ascertain whether a document creates a licence or lease, the substance of the document must be preferred to the form; (2) the real test is the intention of the parties — whether they intended to create a lease or a licence; (3) if the document creates an interest in the property, it is a lease; but, if it only permits another to make use of the property, of which the legal possession continues with the owner, it is a licence; and (4) if under the document a party gets exclusive possession of the property, prima facie, he is considered to be a tenant; but circumstances may be established which negative the intention to create a lease.”

In Board of Revenue v. A.M. Ansari, (1976) 3 SCC 512, “A close study of the above definitions shows that it is the creation of an interest in immovable property or a right to possess it that distinguishes a lease from a licence. A licence does not create an interest in the property to which it relates while a lease does. There is in other words transfer of a right to enjoy the property in case of a lease.”

“As to whether a particular transaction creates a lease or a licence is always a question of intention of the parties which is to be inferred from the circumstances of each case. For the purpose of deciding whether a particular grant amounts to a lease or a licence, it is essential, therefore, to look to the substance and essence of the agreement and not to its form”

Conclusion

In light of the aforementioned considerations, it may be concluded that a lease document is far more permanent, perpetual, and transferable. Both an ownership title and an interest in the immovable property are created in the lessee's favour. A leave and license agreement, on the other hand, is more frequently used when rent is paid in exchange for the right to use the property for a certain purpose and no rights are created in the licensee's favour. Also, as held by the Hon’ble Supreme Court in a catena of decisions, it is ultimately the intent of the parties and the subsequent agreement which determines whether the said agreement is a lease or license. 

The development of stable financial institutions, particularly banks, is a prerequisite for preserving the overall stability of the nation's financial system. The high level of non-performing assets (NPAs) in banks and financial institutions is a serious concern to the public because bank credit is the engine driving the nation's economic expansion and any obstruction to the free flow of credit, including the rising NPAs, will unavoidably have a negative impact on the economy. The cycle of lending-repaying-borrowing is disrupted when loans are taken out but not returned because a large portion of the money leaves the financial system. In 2001, the total amount of outstanding NPAs stood at Rs.83,500/- crores, since then the quantum of nonperforming assets has been expanding by leaps and bounds, wreaking havoc on the Indian financial system.

Non-performing assets, abbreviated as NPAs, are typically defined as loans or advances that are considered to be in default or arrears.  In essence, it refers to a loan or advance that brings in no money for the bank. Furthermore, a loan is said to be in arrears if the interest or principal payment is not made or is missed. On the other hand a loan is said to be in default when the lender considers the loan agreement has been broken and the debtor is unable to satisfy his commitments.

Also, NPA’s were defined as follows by the Narasimha Committee, which was focused on enhancing the financial system's efficiency:

"A non-performing asset is a loan or advances for which the principal or interest payment remains overdue for a period of 90 days."

CLASSIFICATION OF NPA’S

For this reason, the Reserve Bank of India has divided assets into four categories: standard assets, substandard assets, doubtful assets, and loss assets:

1.      Standard Assets: A performing asset is unquestionably a standard asset. People/organizations holding standard assets make payments as they become due and create continual revenue. These assets are not NPAs but do carry a standard level of risk.

2.      Sub-Standard Assets: Assets that have been declared as non performing for a full year 

3.      Doubtful Assets: Assets that have been labelled as non-performing for longer than a year are considered doubtful assets

4.      Lost Assets: These are considered to be the assets that are beyond restoration. Identification of these assets is the responsibility of the Central Bank or the auditors.

Before designating an asset as non-performing, banks typically take into account a number of factors. If, however, these reasons are not satisfactory in accordance with their standards, the loan is designated as non-performing. At that point, banks can foreclose and use the provided collateral to recover the debt. Banks are quite concerned about the rise in non-performing assets since it reduces their earnings and makes it harder for them to make loans through provisioning. This might be ascribed to careless lending practises, borrowers' purposeful default, or their inability to repay. Many reform programmes, including Asset Reconstruction Companies (ARCs), corporate debt restructuring plans, strategic debt restructuring plans, sustainable structure of stressed assets, etc., have been introduced in the past to address the NPA issues.

The RBI has given banks instructions on how to fairly and effectively designate assets as non-performing. In a nutshell, these guidelines state that when classifying assets into the aforementioned categories, it is important to take into account both the degree of clearly defined credit weaknesses and the degree of reliance on collateral security (such as a promoter guarantee, shares, real estate, etc.) to pay debts.

It was anticipated that the Insolvency and Bankruptcy Code's (“IBC”) resolution mechanism will expedite the process of exerting control over asset quality. Formerly, the RBI and the relevant bank worked together to find solutions to issues relating to NPA and restructured assets.

The way that distressed corporate debtors are resolved has changed as a result of the introduction of the IBC. It establishes a thorough process for the prompt liquidation of the corporate debtor under the control of the National company law tribunal ("NCLT"). The recovery process using the IBC is substantially quicker, however there are certain difficulties. The number of cases closed under the insolvency resolution regime has been significantly less than what was proposed in the resolution, according to figures from the Insolvency and Bankruptcy Board of India (IBBI). As a result, various adjustments must be performed in order to guarantee the accuracy of the Code's application.

RECOVERY OF NPA’S

1.      Insolvency and Bankruptcy Code: There were numerous laws and institutions with overlapping jurisdictions and functions prior to the implementation of the Insolvency and Bankruptcy Code, 2016, which caused significant difficulty when handling insolvency and bankruptcy procedures against both individuals and businesses. In India, there was no legal structure that offered an effective approach to aid in debt collection, which damaged banks and other financial organizations and restricted the flow of credit. The Insolvency and Bankruptcy Code Bill, which the government introduced in 2015 and which was later passed and put into effect in 2016, was created to get over these obstacles. The object of IBC has been discussed in Gujarat Urja Vikas Nigam Ltd. v. Amit Gupta, (2021) 7 SCC 209 wherein it was noted that, “The objective of the Insolvency and Bankruptcy Code, 2015 is to consolidate and amend the laws relating to reorganisation and insolvency resolution of corporate persons, partnership firms and individuals in a time-bound manner for maximisation of value of assets of such persons, to promote entrepreneurship, availability of credit and balance the interests of all the stakeholders including alteration in the priority of payment of government dues and to establish an Insolvency and Bankruptcy Fund, and matters connected therewith or incidental thereto. An effective legal framework for timely resolution of insolvency and bankruptcy would support development of credit markets and encourage entrepreneurship. It would also improve Ease of Doing Business, and facilitate more investments leading to higher economic growth and development.”

2.      Debt Recovery Tribunals: Upon filing of Original Applications, also known as OAs, in the Debt Recovery Tribunals ("DRT") and appeals in the Debt Recovery Appellate Tribunals ("DRAT"), the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (RDDBFI Act) provided for quick recourse for lenders and debtors. As a result, the DRTs and DRATs have been established under the RDDBFI Act to help meet the demand for quick resolution of NPAs for banks. The DRT also has the authority to rule on applications made by the borrower or mortgager against secured creditors for actions conducted in accordance with the Securitization Act. It was observed in Para 4 of Union of India v. Debts Recovery Tribunal Bar Assn., (2013) 2 SCC 574 that, “Due to delays in the disposal of such suits by the civil courts on account of heavy dockets, the recovery of loans and enforcement of securities suffered. Thus, an urgent need was felt to work out a suitable mechanism through which the dues of the banks and financial institutions could be realised expeditiously. This led to the establishment of DRTs and the Debts Recovery Appellate Tribunals (for short “DRATs”) under the Rddbfi Act for expeditious adjudication and recovery of debts due to banks and financial institutions.”

3.      Sarfaesi Act: The SARFAESI Act, also known as the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002, was created following deliberations by committees that the government had established to look into the necessary legal and financial system changes and reforms for the debt recovery mechanisms. This Act's primary goal is to expedite the recovery of delinquent loans and to assist in easing the rising pressure on the banks brought on by the rise in NPAs. By allowing them to seize securities and sell them to lessen the burden of non-performing assets, the act gives banks and financial institutions a vehicle for better asset recovery. In the case of State Bank of Travancore v. Mathew K.C., (2018) 3 SCC 85, “The financial institutions in India did not have the power to take possession of securities and sell them. The existing legal framework relating to commercial transactions had not kept pace with changing commercial practices and financial sector reforms resulting in tardy recovery of defaulting loans and mounting non-performing assets of banks and financial institutions. Narasimhan Committee I and II as also the Andhyarujina Committee constituted by the Central Government Act had suggested enactment of new legislation for securitisation and empowering banks and financial institutions to take possession of securities and sell them without court intervention which would enable them to realise long-term assets, manage problems of liquidity, asset liability mismatches and improve recovery. The proceedings under the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (hereinafter referred to as “the DRT Act”) with passage of time, had become synonymous with those before regular courts affecting expeditious adjudication.”

4.      Lok Adalats: One of the alternative dispute resolution procedures established by the government is the Lok Adalat. It serves as a venue for the mutual resolution of legal disputes or cases that are still pending or in the preliminary stages of litigation. The Legal Services Authorities Act, 1987 has conferred legal status upon Lok Adalats. 

CONCLUSION

The issue of non-performing assets (NPAs) is getting worse in India, harming both the banking industry and the country's economy overall since it affects the availability of credit and causes more and more banks to fail. The Government is aware of this issue and has taken action to guarantee that the banks are able to function and that the economy has access to credit. Notwithstanding a downward trend in loan recovery, it has been observed a decrease in gross non-performing assets (NPAs). This could be caused by the bank write-offs. The banks wrote off NPAs of Rs. 1.91 lakh crores in 2020–21. The write-offs in 2019–20 totaled about Rs. 2.2 lakh crores. The overall amount of NPA write-offs for the five-year period from 2016–17 to 2020–21 is almost Rs. 8.8 lakh crores.

Banks have a number of challenges in today's society, the most important of which is non-performing assets, which we have already covered in great detail. So, in order for the banks to improve their effectiveness and profitability, the non-performing assets must be effectively managed and monitored. Compared to 14.5 percent under the SARFAESI Act, the IBC has a recovery rate of 42.5 percent of the amount at issue in NPA cases. In the "Ease of Doing Business 2020 Report" published by the World Bank, India is ranked 63rd, up from 77th in 2018. From 108th to 52nd place in the ranking for resolving insolvency in 2019, India advanced 56 spots. The recovery rate was 26.5 percent in 2018 whereas 71.6 percent in 2019.

The system of credit risk management used by banks is where the issue of rising NPAs first emerged. Banks must set up pre-sanctioning appraisal responsibilities and an effective post-disbursement supervision with sufficient preventive measures. Loans should be regularly monitored by banks in order to spot accounts that could eventually stop performing. To guarantee that funds are used to their full potential, banks must use their inspectional capabilities. Moreover, banks may be given the authority to recoup loans from the borrower's guarantor.

Traumatic Brain Injury (TBI) is a severe and often life-changing injury resulting from accidents, sports injuries, or medical malpractice. A TBI can lead to long-term disability, cognitive impairment, and emotional distress. In such cases, it is crucial to have a Traumatic Brain Injury (TBI) lawyer who specializes in advocating for the rights of individuals who have suffered a TBI. A TBI lawyer is critical in pursuing compensation for the damages caused by the injury. In this blog post, we will explore the role of a TBI lawyer and the specific responsibilities and duties they undertake to help their clients seek justice and fair compensation.

1.   Case Assessment

Personal injury cases involving TBIs can be complex and require a thorough assessment of the facts to determine if negligence or malpractice played a role in the injury. Traumatic brain injury lawyers will assess the case to determine its legal merits and decide on an appropriate strategy for seeking compensation for you. Your lawyer will collect evidence, review medical documents, and analyze the facts of your case to determine if there is a viable legal claim. They also work with other legal professionals, such as medical experts, to create a compelling argument for your case. The lawyer will also evaluate the total cost of your medical bills, lost wages, and other damages to determine appropriate compensation.

2.   Legal Advice

The legal aspect of a TBI injury case can be complicated. Your lawyer will provide advice and guidance to help you understand the legal process and your rights as an injured individual. They can explain the different types of compensation that may be available, such as punitive damages or medical expenses reimbursement.

Your lawyer will also advise you on how to proceed with filing a claim and any other legal documents that may be required. They will also help you prepare for hearings and other court proceedings if necessary.

3.   Settlement Negotiation

Insurance companies can be challenging to work with when dealing with a TBI case. A TBI attorney can help negotiate an appropriate settlement amount considering all your damages, including medical costs and lost wages. The lawyer will also assess the legal merits of a settlement agreement to ensure that you are adequately compensated. If a settlement cannot be reached, a TBI lawyer can represent you in court and fight for the damages you deserve.

4.   Representation

Sometimes, settlement negotiations with an insurance company can break down and require a lawsuit. If this happens, your TBI lawyer will be your advocate in court and provide representation for the case duration. They will present the facts of your case to a judge or jury and argue on your behalf to seek fair compensation for any losses you have suffered due to the injury. Court proceedings can be intimidating, but having a TBI lawyer by your side will ensure you have the guidance and support to make a strong case for yourself.

5.   Support

The mental and emotional toll of a traumatic brain injury can be significant. Your TBI lawyer will support you throughout the legal process and help you cope with the trauma of such an injury. They will ensure your rights are respected and you receive the justice and compensation you deserve. If you have a problem coping with the effects of a traumatic brain injury, your lawyer can connect you with other professionals and support services that can help.

After an accident, it’s important to seek the guidance of an experienced TBI lawyer. A good TBI lawyer will provide comprehensive legal services and support to help you fight for the compensation you deserve. With their assistance, you can rest assured that you’re getting the best legal representation possible.

• What is a Writ?
• What is the difference between writs issued under Article 32 and Article 226?
• What are the different types of Writs?
• What is the Difference between Prohibition and Certiorari?
• When can writs be issued?
• Can a writ be filed against an individual or it is only maintainable against public institutions or organizations?
• Is there any limitation period for filing a writ petition?
• Who can file a Writ Petition in India?

Procedure to track Court Cases online - CNR number – QR code

The digital drive has accelerated growth in many sectors in India and across the globe and has produced groundbreaking results in different domains. Digital transformations in forms of digital literacy, digital infrastructure creation, communication and networks through digital banking, and digital delivery of services have seemingly worked as bridging a gap and reducing disparities between authorities, members or consumers/users. It has established a new and revolutionary set of channels for transactions. This growth in the digital sector has triggered issues pertaining to its legal and jurisdictional characterin India.These issues became essential to address in order to implicate transparency and convenience between the State and its citizens.

Importance of CNR Number and QR Code

CNR is a unique number assigned to each case filed in district and taluka courts. Once the CNR number is entered, you can get the current status and details of the case.

Case status can also be searched by party name, case number, filing number, advocate name, FIR number or Act type.

The app is extremely helpful and beneficial to both lawyers and litigants. By using this app, one can easily receive notification regarding the next date of hearing of a case.

Judgments copies are available on the app meaning you need not to have wait for a long to access the hard copy of the judgment.

One can also access information by just scanning the QR code.

All information related to high court and district court cases can be accessed through this single mobile application.

The QR code option can be utilized equally by the courts, advocates, thelitigants. The print out of the QR code generated fromthe ecourt websitemaybe pasted in the case docket by the courts and the advocates andwiththescan QR code option available in the e courts mobile app or usinganyotherscan QR code app one can scan the QR code and get the details of thecaseinone scan which will free the user from manually typing the 16digitCNRnumber or by entering the other details while searching . If onestartsusingthis Qr code option it becomes addictive for the user .Just try theoptionandenjoy its speed and accuracy of getting the case details.

EXCLUSIVE SEARCH FOR FIRs (First Information Reports – Police Station)

The FIR registered in the State of Karnataka can be searched in the link and similar links are available created by different State Governments

https://ksp.karnataka.gov.in/firsearch/en

eCourts is a revolutionary tool launched to disseminate legal information in India. On 7th August 2013, the Hon'ble Chief Justice of India launched the e-Courts National portal of the eCourts project. eCourt services facilitate citizens by providing information related to cases filed in subordinate courts and most of the High Courts in the nation. It  enables stakeholders as well as citizenstoto access various details pertaining to their pending case online. eCourts services portal is a centralized system where you can check and track the status or information of the case by inserting essential credentials. Moreover, citizens can also access data and information about the judicial system of the country. The judgment search portal also allows to search by Bench, Case Type, Case Number, Year, Petitioner/ Respondent Name, Judge Name, Act, Section, and decisions. Additionally, virtual courts enable online adjudication of cases and are proven to be time and costeffective than traditional court proceedings. Therefore, litigants can settle triviallegal disputes like traffic and transport challans, etc. and can also track and access their status online.

Follow these steps to track the status of your case online on eCourt:

1.      Download e court service application or visit the website

Services provided by eCourts offer to check and track the details of your case at your ease where you can get details on court orders and cases filed in subordinate courts, High Courts, and the Supreme Court. The public at large can access landmark judgments of cases and details or updates thereof to boost their legal awareness. In addition, it also provides e-filing services with virtual court proceedings. ( http://ecourts.gov.in/ )

However, to get personalized details pertaining to your particular case filed, you will be required to log in and enter the credentials of your case as mentioned below to proceed further.

2.      Go to the search menu and enter the CNR number of your case

Once you have downloaded or visited the official website of the eCourt service, click on the ‘search menu’ section of an application/website and enter 16-digit CNR number of your case which is also commonly known as the case identity number. You will find this number on the document of your registered/filed case. If you are unable to log in with the CNR number, then you can opt for other options such as entering the registration number, litigant’s name, or advocate’s name.

3.      Select your state, district, and court complex

Select the state and district where the case is filed to determine the jurisdictional authority that applies to your case. The ‘Cause list’ option on the website provides a list of the cases awaiting a hearing.

4.      Click on the case status tab to know the details of your case

Check the status and once you have entered the details, click on the "Get Case Status" option. The current status of the case will be displayed on the screen. You will be able to see the history of your case.

5.      Save the details

You can also save the case details for future reference by clicking on the "Save this Case" option. However, you will need to register to create an account on the eCourts website to save the case details.

6.      Check for updates

You can check for updates on the professional dashboard of your case.

We can enunciate that digitization of the legal and jurisdiction system has simplified it for the people with an introduction of digital India having commitments to ‘power to empower’. Furthermore, you can also check your police case status online through quick links on e-court, e-prison, NCRB data portal, and on the website of digital police that is, www.police.gov.in.  It's crucial to note that not all courts have online case tracking systems, and even if they do, some information or data may be restricted/sealed or unavailable to the public.

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Under which Act, Credit, Debit Cards,  ATMs, PhonePe, PayTm Wallets etc., works

The Reserve Bank of India (RBI) established the Payment and Settlement Act System, 2007 (PSS Act, 2007), which was approved by the President on December 20, 2007. It becomes effective on August 12, 2008. The Board for Regulation and Supervision of Payment and Settlement Systems is a central authority that has been established by RBI (the country's top institution) with the ability to regulate and supervise payment and settlement systems (BPSS). The RBI also created the Payment and Settlement Systems Regulations, 2008 The 12th of August 2008 saw the implementation of both regulations.  

The objectives of the Payment and Settlement System Act, 2007 are to regulate and supervise payment methods through-out India. The Act vests RBI as the supreme authority and grant powers and to regulate payment gateways. It also provides legal framework for ‘netting’ and ‘settlement finality’. The RBI established a Board consisting of industry experts for Regulation and Supervision of Payment and Settlement Systems as a central body with the jurisdiction to control and oversee payment and settlement systems (BPSS). The Payment and Settlement Systems Regulations, 2008 were also produced by the RBI. The two regulations went into effect on August 12th, 2008.

The 2008 Payment and Settlement Systems Regulations has the following goals:

·         It covers topics pertaining to the format of an application to allow starting/operating a payment system as well as the granting of authorization.

·         It establishes the standard for payment systems and specifies payment instructions.

·         It includes topics pertaining to the delivery of returns, documents, or other information.

·         It also covers how system providers produce accounting and balance sheets.

Section 4 of the PSS Act grants powers only to RBI to operate or launch any payment system, and anyone else who wants to do so must apply to RBI for permission under Section 5 of the Act in order to do so. The authorisation request must be submitted using Form A in accordance with PSS Regulations, 2008, Regulation 3(2). The application must be completed and sent to the RBI together with the necessary paperwork and a cost of 10,000. The application fee can be paid in cash, cashier's checks, demand draughts, money orders, checks payable to RBI, or electronic fund transfers. It can also be submitted electronically. The RBI must grant permission for the system providers running the payment systems or wishing to establish such a payment system via this link. Under this Act, any unlawful use of a payment system would constitute a crime and be subject to punishment.

Between domestic and international entities, the Act makes no distinctions or distinctions. In accordance with Section 4 of the Act, it uses the phrase "No Person." Therefore, it is permitted for foreign organizations to run India's payment system. Regardless of whether an organization is native or foreign, a license or approval from the RBI is required before starting a payment system in India.

A foreign company may provide any service or payment option as the Act puts no bar. The PSS Act of 2007 does not impose any limitations on the type of payment system that a foreign company may provide as long as the method of payment or the service complies with the laws of the country. The RBI has granted permission to foreign card networks like MasterCard, Visa WorldWide Pvt. Ltd., and others, and they are now managing card programmes in India. Remittance services are also being offered by foreign entity service providers like Western Union Financial Services Inc., USA, MoneyGram Payment Systems Inc., etc. who have also been granted authorization. Get the details visitation the link https://www.rbi.org.in/Scripts/PublicationsView.aspx?id=12043

One of the institutions taking part in a multilateral system is the system operator. This technique is used to clear, settle, or record payments, securities, or other financial transactions. FMI refers to Central Securities Depositories (CSDs), Securities Settlement Systems (SSSs), Central Counter Parties (CCPs), and Trade Repositories (TRs) as "payment systems" under the Act to facilitate the clearing, settlement, and recordkeeping of financial transactions. The Committee on Payment and Settlement Systems (CPSS) and International Organization of Securities Commissions (IOSC) publish the Principles for Financial Market Infrastructures (PFMIs). The PFMIs' policies and guidelines also apply to the FMIs. A foreign Financial Market Infrastructure can also operate in India. The PSS Act does not prohibit its operation.  On July 26, 2013, the RBI issued a press release titled "Policy Document for Regulation and Supervision of Financial Market Infrastructures."

The Reserve Bank has the following authority over requests to authorize payment systems:

In accordance with Section 7(3) of the Act, RBI may reject the application by sending the applicant a written notice that outlines the reasons why and gives them a fair amount of time to respond. Any authorization that the RBI has granted in accordance with Section 8 of the Act may be revoked. If the system provider disobeys RBI orders or directives, violates any Act or regulatory rule, or violates the terms and conditions on which it was granted authorization, the authorization may be cancelled.

RBI is allowed to collect permission fees under Section 7. According to Section 15(3), RBI is authorized to disclose any documents or information it obtains to any person or authority if it determines that doing so is necessary to protect the integrity, effectiveness, or security of the payment system, is in the best interest of banking or monetary policy, or serves the interests of the general public. The RBI is given the authority to guarantee that the Act's rules are followed by Section 14 of the Act. The Regulations established by the Act have the authority to appoint an officer to access any location where a payment system is in use, inspect any equipment, and call and request any document or information from any employee of the system provider or participant.

RBI also reserves the right to perform an inspection where it is required to scrutinize. According to Sections 17 and 18 of the Act, the RBI has the authority to direct a payment system or system participant to execute a specific act or refrain from performing a specific act in order to ensure the smooth operation of the payment system.

Retail Payments Organisation

i. National Financial Switch (NFS)

ii. Immediate Payment Service (IMPS)

iii. Affiliation of RuPay Cards (debit cards/ prepaid cards) issued by banks and co-branded credit cards issued by non-banking financial companies (NBFCs) or any other entity approved by the RBI.

iv. National Automatic Clearing House (NACH)

v. Aadhar Enabled Payments System (AEPS)

vi. Operation of Cheque Truncation System

vii. Unified Payments Interface

viii. National Electronic Toll Collection (NETC)

Cards Payment Networks

Cross border Money Transfer – in-bound only

ATM Networks

Prepaid Payment Instruments

White Label ATM Operators

According to Section 24 of the Act, the system provider must set up a panel to resolve disagreements between system participants, and they must refer any such disagreements that include two or more participants to the panel. The Reserve Bank will be consulted if the system participants are not happy with the panel's judgement or if there is a disagreement between a system participant and the system provider. If the issue is addressed to the Reserve Bank, an officer of the Reserve Bank authorised in this regard will make the ultimate and binding decision. When a dispute arises between Reserve Bank acting as a system provider or system participant and any other system provider or system participant then the matter shall be referred to the Central Government which authorizes an officer of a rank not below the rank of Joint Secretary whose decision shall be final.

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It is extremely difficult to maintain peace and order and preserve individual rights in the world's largest democracy and country with the world's largest population and most diverse communities. What's more challenging is bringing justice in a complicated judicial and political system, where each step of the redressal procedure is influenced by many elements that affect the eventual result. In such a complex situation the witness is the key person who highly influences and key element in bringing the ultimate justice, especially in criminal law. Such witnesses are frequently turned hostile due to either corruption or influence by opposing parties, which obstructs the route to justice for ordinary people.

Who is a Witness?

A witness is someone who witnesses a crime and has the ability to express their feelings when questioned by the Court. The term witness is defined under Section 118 of the Indian Evidence Act 1872 as a person competent enough to understand the Court's questions. Thus, according to this provision, anyone can be a witness unless they are unable to understand and respond to the questions posed to them.

Hostile Witness: When Does A Witness Become Hostile

A witness's role is crucial in any country's criminal justice system. Witnesses, according to Bentham, are the "eyes and ears of justice". To understand the concept of a hostile witness, we must first understand how a witness becomes hostile. The investigative powers of the police are dealt with in Chapter XII of the Code of Criminal Procedure. Police officers have the ability to record witness statements under Section 161(3) of the Cr. P C.

However, according to Section 162, these statements are not admissible in court. Section 162 prohibits accused persons from being prejudiced by admissions given to police officers who may put witnesses under duress. As a result, during the trial, the witness must reiterate what he told the police. In this scenario, the police statements serve as a baseline against which the veracity of the witness can be assessed. If the witness retracts earlier comments, he or she may have been hostile.

Reasons For Witness Turning Hostile

Witnesses turning hostile at trial due to threats are no longer limited to cases of serious offenses such as terrorist acts. Various strategies are used to discourage witnesses from appearing in court to offer evidence. The trial falls apart when a witness retracts previous comments. When a witness makes a statement to police about an offense committed without his knowledge but afterward retracts or alters his stand when deposing before the Court during the trial, he is termed hostile. While there is no provision in the Indian Evidence Act to label a witness hostile, Section 154 gives the Court the authority to let anyone who calls a witness ask him any question that might be asked in cross-examination. Section 145 of the Act allows for cross-examination of any witness regarding his earlier written statement. A witness is said to be hostile if he attempts to suppress the facts, so harming the party who calls him. Such evidence should be discarded as misleading. However, per section 6, any discrepancy in a witness's statement cannot be used to refute the prosecution's case.[1]

There are a variety of reasons why witnesses become hostile during a trial. In most cases, witnesses fear the wrath of accused people with power or influence. In the infamous case of Sidhartha Vashisht @ Manu Sharma v. State (NCT of Delhi)[2], 80 witnesses had turned hostile, which led to his acquittal by the lower Court, though reversed by the higher courts. The landmark judgment of the Zahira Habibulla[3] case ("Best Bakery") throws light on the issue of witness protection apart from the quality and credibility of evidence before the Court. The trial for the infamous Sohrabuddin fake encounter case has also been delayed. Such blatant incidents of hostile witnesses show the extreme side of influence and power in a country where finding justice is already difficult. Such witnesses may be charged under Section 191 of the Indian Penal Code, which provides for a seven-year prison sentence and a fine if they provide false evidence. Perjury, on the other hand, is rarely prosecuted.

WITNESS PROTECTION LAWS IN INDIA

A witness who testifies at a trial has the civil duty to state only the truth. The obligation of the state is to safeguard a witness against dangers to his life or property in several areas. When a witness is intimidated, killed, or harassed, not only is the witness endangered, but also the fundamental right of a citizen to a free and fair trial is upheld. Currently, India does not have a witness protection law in existence. There are provisions in various statutes for victim assistance and witness protection, but there is no integrated legislation that protects witnesses.

Code of Criminal Procedure, 1973

Section 177 of the Code states that in order to get fair and independent evidence, a witness on his way to Court shall not be obliged to follow a police officer and shall not be subjected to unnecessary confinement or inconvenience. Section 299 lays down the right of the accused to cross-examine the prosecution witnesses. In certain extreme circumstances, such as when the accused is absconding and cannot be produced before the Court, the section allows the prosecution to question witnesses in the absence of the accused. As a result, the accused is legally denied the opportunity to cross-examine a prosecution witness in open court. Section 327 of the Code provides for an open court trial. However, if the presiding Judge or Magistrate believes that the public should not have access for whatever reason, access to the general public may be restricted at any stage of any inquiry into or trial of any individual case. Section 372(2) provides for an in-camera trial when the offense is rape. Trial by the camera would not only keep the victim's self-esteem and confidence in line with legislative intent, but it would also likely improve the value of evidence of a prosecutrix because she would not be as cautious or hesitant to depose in a frank manner as she would in an open court in front of the public. Recording of evidence by video conferencing has been held to be admissible in a recent decision of the Supreme Court in State of Maharashtra v. Dr. Praful B. Desai[4]  Deposing via video conferencing will enable the victim or witness in giving honest answers without any external pressure. Section 173 requires the police officer to provide a report upon completion of the inquiry. The police officer is obligated by Section 173(5)(b) to send to the Magistrate, along with his report, the statements recorded under Section 161 of any persons whom the prosecution intends to examine as witnesses. A statement recorded under Section 161 does not have to be given to the accused if the police officer forms such an opinion in the interests of justice and the grounds for the same are stated to the Magistrate.

Sections 406 and 407 deal with the jurisdiction of the Supreme Court and the High Court to transfer cases and appeals, respectively, if the Court believes it is in the best interests of justice. Section 312 allows criminal courts to pay witnesses or complainants for reasonable expenses incurred while attending court. In the Best Bakery case, the Supreme Court ordered the transfer of the case from Gujarat to Maharashtra, citing concerns about witness protection as well as the quality and credibility of the evidence. Section 195A permits a witness or any other person to submit a complaint if they are threatened or influenced to give false evidence in relation to any offense.

Indian Penal Code, 1860

Section 228A of the IPC prohibits the publication of the identity of the victim of certain rape offenses while allowing for specific conditions in which the identity may be published. As a result, without the prior authorization of the Court, no matter relating to any of the aforementioned offenses may be printed or published.

The Supreme Court of India emphasized the necessity of an honest witness in ensuring the fairness of a trial in its decisions in State of Gujarat v. Anirudh Singh and Zahira Habbibulla H. Sheikh and Others v. State of Gujarat.

In Zahira Habbibulla H. Sheikh and Another v. State of Gujarat[5], it was observed by the Hon'ble Supreme Court in the following lines: This Court in Vineet Narian v. Union of India (1998 (1) SCC 226) has directed that steps should be taken immediately for the constitution of able and impartial agency comprising persons of unimpeachable integrity to perform functions akin to those of the Director of Prosecution in England. In the United Kingdom, the Director of Prosecution was created in 1879. His appointment is by the Attorney General from amongst the members of the Bar, and he functions under the supervision of the Attorney General. The Director of Prosecution plays a vital role in the prosecution system. He even administers "Witness Protection Programmes". The Witness Protection Programmes are imperative as well as imminent in the context of the alarming rate of somersaults by witnesses with ulterior motives and purely for personal gain or fear of security. It would be a welcome step if something in those lines were done in our country. That would be a step in the right direction for a fair trial. Expressing concern merely in words without the mind to concretise it by positive action would not only be useless but also amount to a betrayal of public confidence and trust.

ANALYSIS OF THE WITNESS PROTECTION BILL, 2015

The Witness Protection Bill of 2015 is India's first concrete move toward ensuring the protection of witnesses outside of courtrooms who come forward to aid law enforcement agencies and suffer significant pressure and threats, particularly when the accused is in a powerful and influential position.

During any stage of the proceedings, a witness has the option of applying for protection within the jurisdiction of the police station that he is assigned to or at the Court, according to the Bill[6]. The Police Officer is given the authority to investigate the threat and report back to the Court. The Applicant shall be protected from any threat to his life, property, or affiliated people in an attempt to influence the testimony of such witness[7]. "Associated individuals" refers to anyone who is related to or has a connection with the witness. The Bill, on the other hand, did not require any rules or factors to be established in order to decide the need to grant protection. The absence of a broad set of limits bestows a great deal of discretion on the authority and so opens the door to abuse of power. The Bill also fails to address the witness's obligations once the witness has been granted protection.

The Bill recognizes three stages in the process of law during which protection must be provided to the witness:

a) Investigation stage

b) Trial stage

c) Post-trial stage, if deemed necessary by the Court if the threat perception still persists

The Bill includes measures such as maintaining the witness's anonymity in criminal matters for the duration of the trial or permanently as requested by the witness, protecting the witness's residential address and redacting it from all official records, allowing cross-examination to be conducted via two way camera, and allowing the witness to be present in all trials via in-camera proceedings. If necessary, the witness may alter his or her identity or place of residence, either temporarily or permanently. The Bill does not address the possibility of a witness being threatened or harassed following a permanent change of identity or residence. According to the Bill, the witness will be given the option of working in a different occupation. If this is not possible, the appropriate government must commit to providing the witness with a stipend consistent with his or her quality of living. However, in a country like India with a severe job crunch, the feasibility of providing the witness with an alternate employment must be questioned. Furthermore, the financial practicality of presenting witnesses with allowances is questionable. In addition, the anatomy of intimidation and terrorisation in cases of sexual offences against women, among other offences, extends beyond mere physical threats. In such a circumstance, simply providing physical security in the form of round-the-clock constables is insufficient.

The Bill also provides for the constitution of the National Witness Protection Council ("NWPC")[8]  and State Witness Protection Council[9] by the Central Government and State Governments respectively. The NWPC is responsible for, among other things, establishing policies and framework for the witness protection programme, protecting witness details, and evaluating the effectiveness of the witness protection programme in collaboration with other agencies.

In India, the position of a witness protection is currently unappealing. In 2015, the Witness Protection Bill was tabled in Parliament. According to the seventh schedule of the Indian Constitution, police and public order are State Subjects. The state governments and union territories have been unable to achieve a compromise on the Bill. Delhi is the country's first state to implement a Witness Protection Scheme. Though it is a step in the right direction, the Scheme requires a lot more work in terms of measures, staff, and funding. 

UNION BUDGET 2023 – POST OFFICE MONTHLY INTEREST SCHEME – AN ATTRACTION

CONCESSIONS AND BENEFITS EXTENDED BY POST OFFICE

Finance Minister Nirmala today announced to increase the maximum deposit limit of Post Office Monthly Income Scheme (POMIS).  The new maximum deposit limit in this Government of India (GoI) backed small saving scheme will be   ₹9 lakh from ₹4.5 lakh for a single account holder and ₹15 lakh from ₹9 lakh for joint account holders.

Finance Minister Nirmala Sitharaman made an announcement in this regard during her Union Budget speech.

“The maximum deposit limit for Monthly Income Account Scheme will be enhanced from ₹4.5 lakh to ₹9 lakh for single account and from ₹9 lakh to ₹15 lakh for joint account," said Nirmala Sitharaman while presenting the Union Budget 2023 in parliament.

After this rise in maximum deposit limit from ₹4.5 lakh to ₹9 lakh, minimum amount required to open Post Office Monthly Income Scheme or POMIS account would remain same ₹1000. Similarly, in a joint account, all joint account holders will have equal share in the total deposited amount. 

As per the information available on India Post's official website, “Interest shall be payable on completion of a month from the date of opening and so on till maturity." However, if the interest payable every month in Post Office Monthly Income Scheme or POMIS is not claimed by the account holder, such POMIS interest shall not earn any additional interest.

Pre-mature withdrawal is allowed in this small saving scheme but not before before one year of account opening. 

“If account is closed after 1 year and before 3 year from the date of account opening, a deduction equal to 2% from the principal will be deducted and remaining amount will be paid," the Department of Post website claimed adding, “If account closed after 3 year and before 5 year from the date of account opening, a deduction equal to 1% from the principal will be deducted and remaining amount will be paid."

1. VISION FOR AMRIT KAL

·         Opportunities for citizens with focus on the youth

·         Growth and job creations

·         Strong and stable macro-economic environment

2. SAPTARSHI-7 PRIORITIES

·         Inclusive development

·         Reaching the last mile

·         Youth power

·         Financial sector

·         Green growth

·         Unleashed the potential

·         Infrastructure and investment

3. AGRICULTURE AND COOPERATIVES

·         Building digital public infrastructure: Building an accessible inclusive and informative solution for farmers.

·         Setting up agriculture accelerator fund: For the encouragement of innovative ideas for startups in rural areas

·         ANB Horticulture Clean Plant program to be launched: To boost production of high value horticulture crops

·         Targeted funding: INR 20 Lac Crore agricultural credit has been targeted as animal husbandry, dairy and fisheries sector.

·         Making India global hub for millets: “project Sree Anna”, support to be given to IIMR, Hyderabad for promoting research

·         Setting up of widely available storage capacity: Will enhance farmers remuneration by enabling sale at appropriating times

4. HEALTH

·         157 new nursing colleges to be established

·         Sickle cell anemia elimination mission to be launched

·         New programme to research in pharmaceutical to be launched

·         Joint Public and private medical research to be encouraged via select ICMR labs.

·         Increased expenditure on health and education from 1.4% to 2.1% in health and 2.8% to 2.9% in education

5. EDUCATION AND SKILL DEVELOPMENT

·         Revamped teachers training via District Institutes of Education and Training

·         National Digital Library to be set up for children and adolescents

·         States will be encouraged to be set up physical libraries at panchayat and ward levels

6. MASS HOUSING AND ACCOMODATION PLANS

·         9 crore drinking water connections to rural areas

·         Cash fransfer of INR 2.2 Lac Crore to over 11.4 crore farmers under PM-KISAN

·         Insurance cover for 44.6 crore persons under PMSBY and PMJJY

·         47.8 crore PM Jan Dhan Yojna bank accounts

·         220 crore Covid vaccinations of 102 crore persons

·         9.6 crore LPG connections under Ujjawala program

·         11.7 crore households toilets constructed under SBM

7. INFRASTRUCTURE AND INVESTMENT

·         Incentives to boost investment in infrastructure and productive capacity resulting in frowth and employment

·         Increased capital investment outlay by 33.4% to INR 10lac crore

·         Continuation of 50 year interest free loan to state govt. to incentivize infrastructure investment

·         Highest ever capital outlay of INR 2.4 lakh crore for Railways

·         100 transport infrastructure projects identified for end-to-end connectivity for ports, coal, steel and fertilizers sector

·         Creating urban infrastructure in tier-2 and tier 3 cities via establishment of UIDF (urban infrastructure development fund)

8. POTENTIAL TRUST BASED GOVERNANCE

·         Make AI in India: three specialized AI centers to be set up in educational institutes: AI based solutions in agriculture, health and sustainable cities

·         National Data Governance Policy: Enable access to anonymized data for research by start-ups and academia

·         Vivad se vishwas I: Less stringent contract execution for MSMEs: relieve to MSME affected during the Covid period

·         Vivad se vishwas II: Easier and standardized settlement scheme: Faster settlement of contractual disputes of Govt. and Govt. undertakings

·         Phase 3 e-Courts to be launched for effective administration of justice

·         Entity Digi Locker: facilitating secure online storing and sharing of documents

·         Setting up 100 labs for 5G services based application

·         R&D grant for lab grown diamonds sector: to reduce import dependency by encouraging domestic productions

9. GREEN GROWTH

·         PM-PRANAM to be launched: will incitivize states/UT to promote usage for alternative fertilizers.

·         500 new waste to wealth plants: to be established under the GOBAR Dhan scheme for promoting circular economy

·         Sustainable ecosystem development: MISHTI: Mangrove plantation along the coastline

·         Amrit dharohar for optimum usage of wetlands

10. FINANCIAL SECTOR

·         Setting up of national finance information registry: to enable efficient lending, promote financial inclusion and enhance financial stability

·         Setting up of a central data processing center: for faster handling of administrative work under the Companies Act

·         Credit Guarantee scheme for MSME: expanded corpus under a revamped scheme to enable additional collateral free guaranteed credit for INR 2 lac crore

·         Mahila Samman Bachat Patra: One time new small savings scheme for a 2-year period with a deposit facility of up to INR 2 lacs for women

·         Benefits for senior citizens: enhanced maximum deposit limit for senior citizens saving scheme from INR 15 lacs to 30 lacs.

·         Other initiatives: To promote business activity on GIFT IFSC

Create more trained professional in securities market via award of educational certificates

11. FISCAL MANAGEMENT

·         50 year interest free loans to states:

To be spent on capital expenditure within 2023-24

Part of the loan in conditional on states increasing actual capital expenditure and parts of outlay will be linked to states undertaking several reforms

·         Fiscal deficit of 3.5% of GSDP allowed for states (0.5% tied to power sector reforms)

·         Fiscal consolidation: targeted fiscal deficit to  be below 4.5% by 2025-26

12. TAX BENEFITS FOR INDUSTRY

·         Enhanced limits for micro enterprises and professionals to avail benefits of presumptive taxation; 95% of receipts to be non cash

·         Deduction on payment made to MSME to be allowed only when payment is actually made

·         Extending 15% corporate tax benefits to new co-operatives commencing manufacturing till 31^st march 2024

·         Higher limit of INR 2 lacs for member for deposit and loans in cash by PACS and PCARDBs

·         Higher limit of INR 3 Crore for TDS on cash withdrawal for co-operative societies

·         Extension of the date of incorporation by one year for income tax benefits to startups

Benefits to carry forward of losses on change of shareholding of startups from seven years of incorporation to 10 years.

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