Delhi Gangrape Trial: Full Text Of Conviction & Sentencing Judgement

Here is the file for everyone to access to read the verdict which His Honour Yogesh Khanna, Additional Sessions Judge, Saket Court has passed giving death penalty to all the accused in the December gangrape trial.

Sentencing 13Sep13

And here is the link of the judgement dated September 10th, 2013 convicting the accused. THIS is quite a large file.

Conviction

Though I shall upload my comments later, do go through the judgement.

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Irretrievable Breakdown of Marriage: New Ground of Divorce.

Law Minister recently moved in the Upper House of Parliament Bill to amend the Hindu Marriage Act. Marriage Laws (Amendment) Bill 2010 in provision relating to divorce. Two major amendments are as follows:

  1. In Section 13B which provides for divorce by mutual consent in two consecutive motions, the requirement is that a couple, staying separately for at least one year, can file the first motion before District Judge and the second motion is 6 moths thereafter but before 18 months from the first motion. Since many a times one of the parties do not support the second motion, the remaining party has to then fight the battle through contested divorce than mutual. In the proposed amendment, the second motion has been done away with. Meaning thereby, divorce by mutual consent can be possible only by moving the first petition subject to the Judge finding everything OK.
  2. Second amendment is insertion of Section 13C incorporating irretrievable breakdown of marriage as a new ground for divorce. This clause is missing in the Act so far. The newly inserted provision though has a multi tier process for a District Judge to go through before declaring the wedding as broken down irretrievably.

Furthermore, the wife, in such a petition of the husband, can challenge it on the ground of financial hardship for herself, and of children if any. The District Judge has a discretion to dismiss the petition of the husband then or make sure that the husband makes arrangement for the wife, and children if any.

Logic of including such alimony apart, biggest worry I find in this newly inserted ground is that a couple need to have lived separately for at least three years before approaching the District Judge for a decree of divorce.

Imagine a situation where a guy is 27 years of age at the time of marriage. After 2 years, marriage seems to have broken down irretrievably.

Age is now 29.

Couple have to live separately for the next three years. At 32, he approaches the Court for a decree of divorce. Now if the wife wants to contest the matter, the Judge will take Her own time and allowing or rejecting husband’s petition. Add couple of years. At 35 divorce is final, guy wanted the divorce at 29. At 35, his chances of settling down are poor. Same maths goes for the wife as well.

Lets see how the law finally turns out at the ground level. Times of India reports that the law is women friendly and wife shall get a share in the property of the husband. Such reporting, though which required a lot of research, itself is sufficient to make Govt realize that the law should be seen as non partisan. Already matrimonial laws are so skewed in favour of females that it is a constant risk of property and of personal liberty of the husband and his family who get dragged into uncalled for litigation and harassment more often than not.

Though my reading of the Bill does not concur with the Times headline. Anyway, I do read The Hindu since I was a kid. That said, the Bill talks about making financial arrangement for the wife and the kids, if there is any. The so called reference to share in husband’s property is something I could not find and would request Times only to assist me.

Through this post, I’m not advising that couple should start getting divorces at the drop of a hat. But when two adults decide they cannot live with each other, why to present a situation before them which makes it worse than ever for them to seek a remedy?

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How To Fix Damaged Home Button On iPhone 3G

Many people complain about the malfunctioned / unresponsive home button on the iPhone. The cost of repairs can vary from US$10 to 20. Chances are, it will conk off again after a while. So here is something which you can try.

Following procedure will create a button on your home screen and you will never have to use the physical home button ever.

  1. Go to settings;
  2. Go to general;
  3. Select accessibility;
  4. Select Assistive Touch; and
  5. Turn it on.

There will be a new icon on the screen which will not only work as an alternative to the physical home button but also for various options.

All the best.

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Resolving IP Infringement Lawsuits: Swifter.

Contrary to the popular belief, intellectual property actions can be settled faster among the category of usual civil action, in comparison to suit for specific performance, partition of properties, etc. Though I generally file action on behalf of the Plaintiff, so the present post might prove as counter productive since I’m giving a Defendant’s perspective in light of precedents.

Whenever a Plaintiff is approaching the Court in an IP lawsuit, the sine qua non relief prayed is that the Defendant should immediately cease from the counterfeiting activities. Incidental relief, thereafter, are delivery of infringing goods and paying damages to the Plaintiff.

After the recent increase in the Court Fees in Delhi, usual practice is not to seek damages but rendition of accounts of the Defendant. Though I have my separate reservation on that front. Nonetheless, since the focus is shifting from damages, job of a Plaintiff to seek speedy disposal only becomes easier and swift.

IP matters do not require the whole nine yards of a garden variety civil litigation. With minimal evidence, maximum result is possible. In 2006, His Honour Sanjay Kishan Kaul paved the way of culminating an IP lawsuit faster in cases where Defendant is willfully abstaining from the proceedings. In the Glaxo matter, His Honour held that where the Defendant is not joining the proceedings, no useful purpose can be served by asking the Plaintiff to bring witness before the Court for deposition. His Honour, under Order 19 Rule 2 sub-rule 2 of the Code of Civil procedure, not only exempted the witnesses from appearing personally, but also decreed the lawsuit then and there on the basis of the material before the Court.

His Honour S. N. Dhingra too followed the Glaxo ruling in Eco Labs and dispensed with the appearance of the witness of the Plaintiff in similar circumstances. Meaning thereby, in matters where the Plaintiff’s officials are not in Delhi generally, or even out of the Country, they need not come to the Court and can seek exemption.

However, these were the cases where the Defendant abstained from joining the proceedings. In some IP cases where the Defendant has put in his appearance, the matter can also culminate soon, in fact sooner, if the Defendant chooses not to contest the matter and suffers the decree with prejudice at the very first opportunity.

The landmark precedent is, again, by His Honour Kaul in Nestle vs Satya Prakash Maheshwari. The last order disposing off the lawsuit is here. In the matter, His Honour faced a situation where Nestle had instituted a lawsuit against infringing wrappers similar to its flagship ready-to-cook noodle brand Maggi. When the lawsuit came up for hearing for the first time, the High Court also allowed Plaintiff’s prayer for appointing Court Commissioners to conduct search and seizure action in the premises of the Defendants.

At the inception, the Defendants chose not to contest the proceedings and offered to suffer a decree of permanent injunction provided Nestle gave up relief of damages against the Defendant. Nestle was, obviously, not interested in giving up claim for damages. Counsel for the Defendant relied upon Section 135(3) of the Trade Marks Act to strengthen his submissions. The provision provides that when the Defendant has chosen to cease his activities in question, then the Court cannot pass any relief for damages, other than nominal damages in Court’s discretion.

Relying upon the provision, His Honour Kaul decreed the suit in favour of Nestle without any damages awarded. Nestle, understandably, took the matter in the Appeal Court before the Division Bench. Their Honours, comprising Mudgal and Shali, with one of the best counsel for IP matters, Mr. Saikrishna Rajgopal as Amicus deliberated on the matter at length.

The Appeals Court, in the comprehensive ruling, not only upheld His Honour Kaul’s judgment, but also cleared the way for the Defendants who want to avoid the rigmarole of long drawn out litigation, most probably resulting in injunction and damages.

This speedier resolution is more favourable to the Plaintiff than the Defendant in a more practical way. By and large, Delhi High Court does not award massive damages after a matter reaches culmination. Settling much earlier and for a token damage can save the Plaintiff a lot of cost and paperwork.

Frankly, a speedier disposal helps the counsels more than the parties. Once an ex-parte interim injunction is in favour of the Plaintiff, if an IP suit gets settled after first few hearings, the legal team can focus on other pressing matters.

Maybe because I had my training as a Mediator during my LL. M. that is why I have more resolution oriented approach towards litigation rather than prolonging it.

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Full Text of Supreme Court Judgment of Lily Thomas.

Here is the file for the full text of the judgement by the Hon’ble Supreme Court in Lily Thomas vs Union of India holding that sub section (4) of Section 8 of the Representation of the People Act is ultra vires the Constitution.

DKMahant Lily Thomas

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Law Pertaining To Cheque Bouncing.

Through this post I intend to give brief info to the readers about the steps to take in legal remedy under Negotiable Instruments Act while facing a situation where a cheque given to her by someone has bounced.

I sometimes receive query from people about a bounced cheque. What I, earnestly, request all is to immediately send a notice otherwise proceedings under Negotiable Instruments Act before a Magistrate cannot commence. A person has other remedies as well. Like filing a civil suit for recovery for the amount. But the criminal proceedings before a Magistrate are an excellent option for getting the amount recovered faster because of the implications of criminal sentencing.

This post also presumes that the cheque was issued towards a debt or a legally enforceable liability. In other situations, like gifts, donations, present, etc., an offence under Negotiable Instruments Act, 1881 cannot be made out for a bounced cheque. Another important aspect is that a cheque has a shelf-life / validity of only three months from the date of issue–this used to six months earlier.

The timeline is of utmost importance.

For instance, if you deposited a cheque on May 31st and should you come to know on Monday, June 03, that the cheque has bounced for reasons like “insufficient funds” “payment stopped” “refer to drawer” etc., you need to inform the person who issued the cheque.

It is mandatory that you send a demand notice of the amount of the cheque to the person who issued the cheque within 30 days from the day you received the information of the bouncing. Hence, on or before July 02, your notice should have been dispatched to this person.

The notice does not have any prescribed format or a manner of sending. Simply put, the purpose of the notice is to make the person aware that his cheque has bounced and he should pay up. It is not even required to be sent through a lawyer but it is very important that a counsel sends it so that there isn’t anything left out. The notice can become a point of a fierce battle during trial so services of your attorney are surely advisable to make sure the essential elements of the notice are covered.

The notice must contain the following information:

  1. You presented the cheque within its period of validity;
  2. Factum of debt / legally enforceable liability;
  3. Informing about the reason of dishonour of cheque;
  4. Calling upon to pay him the amount due; and
  5. Inform him that you are giving him 15 days to pay or you will initiate actions.

The notice, ideally, should be sent via registered post / speed post along with courier. Proof of service of this notice is very important.

It is paramount that the person should receive the notice. In one of the rulings, Bombay High Court has recently even held that this notice can also be sent via email. It makes the job very easy, provided you have the email id of the person. Once the person receives the notice, he should pay up the amount within 15 days of receiving the notice. If he doesn’t, then the person issuing notice has 30 days to initiate proceedings before a Magistrate.

So in the given example, Lets say that you sent the notice on June 04, next day of receiving the information from your bank. Taking a buffer of three days of a letter reaching, presumably the notice should reach by June 08 maximum. Meaning thereby, on or before June 23, the person should pay the amount due. However, if the amount is not paid before June 23, then definitely by July 22 a complaint before a Magistrate should be filed.

Word of caution: Even a single day’s delay in sending the notice beyond 30 days of receiving information from the bank is fatal. The Magistrates, in rare instances however, condone delay, upon being satisfied of genuineness of delay, in the later 30 days after the 15 days period has passed. Meaning thereby, the notice should definitely go before expiry of 30 days from receiving information of cheque getting bounced. If, however, after the expiry of the 15 days period there is a genuine delay in not filing the complaint before the Magistrate within 30 days, the Magistrate might allow the complaint to proceed.

To make it even simpler, here is the math on this. Day 1 cheque is bounced, from day 2 you have 30 days to dispatch notice–this period is not extendable. From day 31, add 4 days of getting the notice delivered. From day 35 add 15 days of buffer period for the person to pay. From day 50 you have 30 days to file a complaint before the Magistrate.

After the complaint is filed, the process is a separate story altogether. Matters are usually referred to Mediation and the Accused / Respondent in most cases choose not to contest the matter and settle. However, this post is just to guide the reader the steps to take when facing such a situation.

All the best.

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Lawyer’s Fees: Justifying The UNJUSTIFIABLE?

“Your bill is very escalated.”

“I don’t think you have put in 4 man-hours of your time in this draft.”

“You cannot equate yourself with your ex-firm in billing.”

The list goes on. These are some of the kind words which some people have used for evading, not merely avoiding, payments to their lawyers or cutting their lawyers’ bill to an illogical amount. The peers who are now in private practice routinely share such soothing words from their Clients who suddenly become wiser once they switch from a law firm to a counsel with private practice.

Some of the gems who have used such kind words to their lawyers have, in the course of their lives, worked in law firms and raised such bills to their client. When they join as an in-house counsel, these very bills become objectionable.

Worst case scenario is with some Clients who happily pay law firms for sending a 21 word letter for a routine follow up but will not pay to their counsel who had done substantial amount of work.

When these people use the word that the bill is escalated, I wonder why do they remain silent when their lawyer is revising the draft repeatedly to augment it to make it far better than a Senior Associate in a law firm can prepare. This genre of Client is happy with his lawyer putting in extra effort but will become unhappy if the lawyer is charging 25% less than what he routinely pay to a run-of-the-mill law firm.

To deal with such a Client it simple.

For instance, when a Client gives an example that some lawyers are charging 15% lesser than you, please tell him that he has not done his research, he can very well find people who are charging 50% lesser. By this method, you will make sure that your Client saves 35% more on his billing so that you can focus on real Clients than these gems!

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