Consider Writing Off Loan Taken For Treating Endosulfan Victim : Kerala High Court Tells Govt

The High court of Kerala has urged the Government of Kerala to consider writing off a loan availed to treat an endosulfan victim.The father of the victim had availed a personal loan to treat his son,who was an endosulphan victim.The treatment however did not bore fruitful results and the victim passed away in the meanwhile.

Bank officials initiated recovery proceedings against the father of the deceased to recover the loan arrears due.The bank refused to grant the benefit applicable to endosulfan victims stating that the victim is not entitled to the same,in the instant case considering the period during which loan was availed.

While not expressing anything on the merits of the case, Justice Devan called upon the Finance Secretary, Government of Kerala to take a decision as to how the loan of the petitioner could be written off.The court held prima facie that the petitioner further cannot be troubled with the payment against a loan availed to treat his son, a victim of endosulfan, which unfortunately went in vain.

Justice Devan Ramachandran opined as follows: ” I am of the view that the 1st respondent , Secretary to Government,Department of Finance, Secretariat , Thiruvananthapuram, must take a proactive decision as to how the loan of the petitioner can be written off, because this court is prima facie of the view that the petitioner,whose deceased son was an endosulphan victim,cannot be any further troubled in making payment against a loan which was availed of by him solely for his treatment , which however,has unfortunately gone in vain.” The court hence directed the Finance Secretary to take a decision in this regard and inform the court on June 24, when the case will be considered next. In the meanwhile, the Court has stayed all recovery proceedings by the Bank initiated in this regard until further orders.

Sec.138 NI Act – Complaint Not Maintainable Against Trustees For Dishonour Of Cheque : Kerala High Court

New Delhi : The High Court of Kerala has held that no prosecution is possible against a trust and its trustees for dishonour of cheque invoking section 141 of the Negotiable Instruments Act, 1881 (“NI Act”). Section 141 deals with the liability of companies in case of dishonour of cheques.

The judgment was rendered by Justice B. Sudheendra Kumar. As per the facts of the case, the petitioners, who were the trustees of a trust along with the trust, were arraigned as the accused persons in a complaint filed by a person before the Magistrate Court for offence under Section 138 of the NI Act. The petitioners approached the High Court seeking to quash the complaint filed against them.

The primary question before the High Court was whether a trust and its trustees fall within the definition of ‘company’ under the explanation to section 141.

As per the definition of ‘company’ under explanation to section 141, “company” means any body corporate and includes a firm or other association of individuals. Therefore, in order to answer whether section 141 can be invoked in case of a trust and its trustees, it became necessary for the Court to find out whether a trust means a ‘body corporate’, ‘a firm’ or an ‘association of individuals’. The findings of the Court are given below. Trust is not a body corporate or juristic person As per S.3 of the Trusts Act, a “Trust” is an obligation annexed to the ownership of property, and arising out of a confidence reposed in and accepted by the owner, or declared and accepted by him, for the benefit of another, or of another and the owner. The person who reposes or declares the confidence is called the author of the Trust, the person who accepts the confidence is called the trustee and the person for whose benefit the confidence is accepted, is called the beneficiary.

The subject – matter of the trust is called trust – property. Looking into the definition of trust and other provisions of the Indian Trust Act, 1882, Court observed that ‘Trust’ is not capable of suing and being sued in a court of law, even though the trustees can maintain and defend suits for the preservation and protection of the trust property. Hence the Court held that a “‘Trust’ is not like a juristic person or a legal entity, as a juristic person has a legal existence of its own and hence it is capable of suing and being sued in a court of law. Hence a ‘Trust’ is not like a body corporate, which has a legal existence of its own and therefore can appoint an agent. Trust is not a ‘firm’ The Court categorically observed that a trust is not a firm. Trust is not an ‘Association of Individuals’ On going through various precedents, Court observed that an association of persons/ body of individuals are a combination of persons coming together for a common action with a common understanding and a purpose to achieve some common benefit. As trustees are not beneficiaries and not have any common benefit, court held that trustees are not association of persons/ body of individuals. “It appears from S.3 of the Act that a “Trust” is created for the benefit of another, or of another and the owner of the property / author of the Trust. The trustees are not the beneficiaries of the Trust. S.51 of the Act would also show that a trustee cannot use or deal with the trust – property for his own profit. Therefore, there can be no doubt that the trustees are not the beneficiaries and hence the trustees do not have any common benefit.

The duty of the trustee is to utilise the trust property for the benefit of the beneficiaries in accordance with the terms of the agreement of Trust”, observed the Court Further, Court also relied on the ratio in Pratibha Pratisthan & Ors. v. Manager, Canara Bank & Ors (2017 (3) SCC 712) where it was held that Trust is not a ‘person’ as defined in Consumer Protection Act, 1986 based on the reasoning that Trust is not an ‘association of persons’. “it is clear from S.3 of the Act that the trustees do not get any benefit out of the trust – property and the benefit will be obtained individually by the beneficiaries or the beneficiaries and the author of the trust. Therefore, it cannot be said that the trustees are persons join together for a common action to achieve some common benefit. It is true that the beneficiaries get the benefit. However, the beneficiaries do not become the beneficiaries by their own volition. Since the common purpose of the “Trust” is not to achieve benefit to the trustees, the “Trust” cannot be said to be an “association of persons / body of individuals”, the Court added.

Thus, the Court concluded that a trust is not a body corporate or association or individuals and that it does not fall within the meaning of ‘company’ under section 141 of the NI Act. Therefore, the Court held that no prosecution is possible against the petitioner trust and trustees invoking section 141 and quashed the complaint invoking powers under section 482 of CrPC.

Citizens Can Criticize Judgments, But Can’t Obstruct Its Enforcement: Kerala HC .

“Trends of this nature cause great concern to all those who have the welfare of the country in mind.” The Kerala High Court has observed that though the citizens are entitled to criticize judgments, they should not take law into their own hands to obstruct the court orders and directions. While granting bail to a BJP candidate to upcoming Lok Sabha elections who is accused in a criminal case related to obstructing women who tried to enter Sabarimala, Justice Alexander Thomas observed:

“Certainly citizenry and civil society and those who are concerned with the polity, are certainly entitled to make their critiques of any judgments that may be passed by the court of law, including the Constitutional courts. However, the action of the taking law into one’s own hand so as to obstruct the enforcement of the specific directions and orders of the court of law, more so particularly that of the Apex Court, cannot be countenanced and trends of this nature cause great concern to all those who have the welfare of the country in mind.”

Prakash Babu, who is contesting on BJP ticket from Kozhikode constituency in Kerala, is accused of being a member of unlawful assembly which caused violence in Sabarimala. Prakash is also a lawyer who is practicing in Kozhikode Bar. Taking note of the fact that the co-accused in this case have been granted bail, the court ordered that he shall be released on bail on his executing bond for Rupees Two Lakh. Justice Alexander Thomas further said:

“Before parting with this case, this Court would refer to the observations made by my erudite and noble brother, V.Raja Vijayaraghavan,J., in the order dated 7.12.2018 in B.A.No. 8252/2018 filed by accused No.13 that it is rather unfortunate that the respondent individuals, such as the applicant therein, who holds high position in major political parties, resort to unconstitutional practices to achieve their political objectives.”

The Judge also quoted from a speech made by the Chief Justice of India.

“This Court is reminded of the words of caution made by the Hon’ble Chief Justice of India, Sri.Justice Ranjan Gogoi in his Lordship’s recent speech rendered on 26th November, 2018 in celebration of the anniversary of the adoption of the Constitution of India, when it was observed that “the adoption of the Constitution is inextricably entwined” in our lives and it is in our best interest to pay attention to its advice and “if we do not, our hubris will result in sharp descent into chaos”.”

 

Parishioners Cannot Be Deprived Of Their Right To Burial In Church Cemetery: Kerala High Court

“The right to a burial in the cemetery must be seen as flowing from his status as a Parishioner of the Church” Reiterating that the Church and the cemetery cannot be confiscated by anybody, the Kerala High Court has held that, irrespective of his allegiance, a parishioner cannot be deprived of his/her right to burial in the church of which he/she is the parishioner. While considering a batch of writ petitions regarding the ongoing turf between Orthodox and Jacobite church factions, the bench comprising Chief Justice Hrishikesh Roy and Justice AK Jayasankaran Nambiar noticed that the parishioners of a particular church, who owe allegiance to the Patriarch faction, were denied their right to bury their family members, in the space allotted for burial of their family members in the cemetery attached to the church concerned.

The bench observed:  “This, in our view, would not be in accordance with the declaration of the Supreme Court in the cases referred above. As observed by the Supreme Court in paragraph 228.17 in K.S. Varghese’s case [supra], the Church and the cemetery cannot be confiscated by anybody.

It has to remain with the Parishioners as per the customary rights and nobody can be deprived of the right to enjoy the same as a Parishioner in the Church or to be buried honourably in the cemetery, in case he continues to have faith in the Malankara Church.”  The bench added that, so long as the person claiming a right to burial continues to be a parishioner of the church, and his/her name is not removed from the register of parishioners of the church pursuant to a due process of law, the mere fact of allegiance of the Parishioner to the Patriarch, who is admittedly the spiritual head of the Malankara Church even as per the 1934 Constitution, or his/her inclination to the ideology of the Patriarch faction, cannot deprive the parishioner of his/her right to burial in the church of which he/she is the parishioner.

“This right cannot be taken away even if, in particular circumstances, the parishioner chooses to forego funeral services in the church or its cemetery or opts for a funeral service at any other premises by a priest of his/her choice. The right to a burial in the cemetery must be seen as flowing from his status as a Parishioner of the Church.”, the court added. While closing another connected writ petition, the bench noted that the State Government is brokering peace between the rival church factions.

 

Kerala HC dismisses Bishop Mulakkal’s bail plea

Kochi:The Kerala High Court Wednesday dismissed the bail plea of Roman Catholic Bishop Franco Mulakkal, arrested over allegations of repeatedly raping and sexually assaulting a nun.

Justice Raja Vijayaraghavan dismissed the bail plea while accepting the prosecution argument that the accused, holding a high position in society will try to influence witnesses in the case, if he is granted bail.

Police said the investigation in the case is progressing even after the arrest of the accused.

The court also took note of the submission by the prosecution that the investigation in the case was at a crucial stage and more statements of fellow nuns have to be recorded before the magistrate under Section 164 of the CrPC in connection with the case.

The Bishop moved the High Court after a magistrate court in Pala rejected his bail application.

He is currently under judicial remand in a sub-jail in Pala in Kottayam district.

In her complaint to the Kottayam Police in June, the nun had alleged that Bishop Mulakkal raped her at a guest house in Kuravilangad in May 2014 and later sexually exploited her on several occasions.

The nun said she had to approach the police as church authorities did not act on her repeated complaints against the clergyman.

However, the bishop has denied the charges.

HC directed 400 workers to rejoin

Kochi: The Kerala High Court directed over 400 workers of the State Road Transport Corporation today, who have availed a long leave and taken up jobs abroad, to rejoin duty within one and a half months.

Over 400 employees belonging to various categories have taken a long leave from the loss-making corporation and have taken up jobs abroad.

The KSRTC Managing Director had recently issued an order directing them to rejoin duty by June 1, failing which their services would be terminated.

Challenging the order, the affected employees had moved the High Court, seeking more time to rejoin work.

When the case came up today, Justice Anu Sivaraman granted them one and a half months to rejoin duty.

High Court: Watching certain videos can’t be reason to implicate a person as terrorist

The Kerala High Court has observed that merely watching certain videos and speeches will not be a reason to implicate a person as a terrorist.

A division bench of justices A M Shaffique and P Somarajan made the observation while considering an appeal filed by one Muhammed Riyas, challenging an NIA court order denying bail to him.

In its recent verdict, the court also set aside the National Investigation Agency (NIA) court order and granted bail to him.

In his appeal, Riyas had submitted that he was arrested on terror charges following a complaint filed by his estranged wife, a Hindu woman who had converted to Islam.

He had contended that he was not part of any terrorist organisation as claimed by his wife and he had no connection with the same.

It is only on account of the matrimonial dispute or under the influence of some other person that she (wife) had levelled such allegations against him, he had submitted.

In its order, the bench said as far as the appellant is concerned, he was detained on the ground that he might have been involved in terrorist activities.

“The fact that he has seen certain videos and speeches as aforesaid by itself will not be a reason to implicate him as a terrorist, unless there are other materials to establish the same,” the order said.

Noting that many such videos, speeches etc were in public domain, the bench said, “merely for the reason that one sees such matters it may not be possible for any person to establish that the accused is involved in terrorism.”

“In the absence of any such materials forthcoming, even as on date, after expiry of 70 days of imprisonment, we are of the view that this is a fit case in which this court should exercise jurisdiction to grant bail,” it added.

During the hearing, the NIA had submitted that it came into picture on the basis of a report submitted by the local police.

The central agency said two laptops had been seized from Riyas.

The laptop contained literature regarding ‘Jihad’ movement, videos of speeches delivered by Islamic preacher Zakir Naik, and some videos related to the war in Syria among others, it had said.

That apart, some nude photographs and videos of his wife were also found on the laptop, they said.

Other than that, as the matter stands now, link with any terrorist organisation has not been established, the NIA had said.

To this, the court, said the issue relating to the nude photographs of the woman are separate matters which has to be dealt with in accordance with the procedure prescribed.

Earlier, the woman had filed a writ petition before the High Court alleging that she was forced to change the religion and marry the petitioner.

She had also alleged that attempts were made by Riyas to take her to Syria to join ISIS terror group.

She had also stated in the writ petition that Riyas had threatened her stating that her nude photographs will be published in the social media.

Judge names child after estranged inter-faith couple take battle to High Court

In an unusual case, the Kerala High Court has christened a child of an estranged couple belonging to different religions after they fought over the matter.
The court intervened after both father and mother, locked in a matrimonial dispute, were aggrieved by the “inaction” on the part of the municipality to issue a birth certificate in respect of their second child showing the name as per their respective wishes.

While the mother said the child was baptised as ‘Johan Mani Sachin’, the father claimed that the name that they agreed to was ‘Abhinav Sachin.’

Abhinav Sachin was the name given to their second child on the 28th day ceremony (as per Hindu practice in Kerala for naming the newborn), the father had informed the court.

The court observed that it was an urgent requirement that a name be given to the child so that he could be admitted to a school, where a birth certificate would be a pre-requisite for admission.

Counsel for the mother submitted that although the name given in the baptism certificate pertaining to the second child is ‘Johan Mani Sachin’, she was ready to give up the name ‘Mani’ in a gesture of reconciliation with the father.

The father, however, insisted that the name ‘Abhinav’ be retained in the place of ‘Johan’.

In his judgment recently, Justice A K Jayasankaran Nambiar took note of the differences between the parents. “….. as a conciliatory measure and with a view to pacify both the parents of the child, it would be in the interests of justice to accede to the wishes of both the parents to the extent possible and therefore, assign the name ‘Johan Sachin’ to the second child of the petitioners in both these writ petitions,” the judge said.

The judge said the name ‘Johan’ would represent the wishes of the mother and the name ‘Sachin’ as a surname would satisfy the requirement of the father as it would identify the child as his.

Justice Jayasankaran said this course of action would be in the interests of the minor child, who is now in the mother’s custody, with occasional custody granted to the father as per the directions of the family court, where the matrimonial dispute is pending.

Disposing of the writ petitions, the judge directed the Registrar (Births & Deaths) to issue the certificate within a period of two weeks from the date of receipt of a copy of the judgment.

BCCI response on Sreesanth’s plea : SC

The Supreme Court on Monday sought a response from BCCI on controversial cricketer S Sreesanth’s plea challenging the life ban imposed on him by the apex cricket body.

A bench comprising Chief Justice Dipak Misra and Justices A M Khanwilkar and D Y Chandrachud asked the Board of Control for Cricket in India and two office bearers of its Committee of Administrators (CoA) to file their responses within four weeks.

The court, however, refused to grant any interim relief sought by senior advocate Salman Khurshid, representing the cricketer, that he may be allowed to play.

Sreesanth, who had been absolved in the IPL spot-fixing case, was successful when he filed a plea before the single judge bench of the Kerala High Court challenging the life ban imposed on him by BCCI.

However, the division bench of the high court had set aside the single judge bench and upheld the ban.

The cricketer has now challenged the high court verdict in the apex court.

HC grants pre-arrest bail to actor-MP Suresh Gopi

 The Kerala High Court today granted anticipatory bail to actor and BJP MP Suresh Gopi in a case related to alleged forging of documents to get his two luxury cars registered in Puducherry to evade vehicle tax in the state.

Justice Raja Vijayaraghavan directed the Rajya Sabha MP to execute a bond of Rs 1 lakh along with two sureties of the like amount.

He also directed him to appear before the investigating officer on all Saturdays.

Gopi had filed the anticipatory bail plea on December 12.

Last week, the court had directed the police not to arrest Gopi for a further period of 10 days in the case.

The prosecution had alleged that Gopi was using the cars in the state after evading payment of tax.

Earlier, following the court direction, Gopi had appeared before police in connection with the probe.

The police had registered an FIR against the actor on December 5, charging him with falsifying and fabricating documents by showing an address in the Union territory and getting the vehicles registered there, causing revenue loss to the Kerala government.

The FIR is pending before the chief judicial magistrate court, Thiruvananthapuram.

In his plea, Gopi said the allegations prima facie were false.

The actor said he had chosen to register the two vehicles in Puducherry where he owns agricultural land which was being looked after by family members, including his brothers.

The actor said he has a house in Bengaluru and his brothers have residences in Coimbatore and Tuticorin, so the vehicles were frequently used to ply within these states.

Police have alleged that the actor-turned-politician used a fake residential address to register his luxury vehicles in Puducherry to evade the 20 per cent tax in Kerala on luxury cars costing Rs 20 lakh and above.