K K Srivastava advocate Supreme Court

K K Srivastava advocate Supreme Court Advocate offering kosher/exceptional solution to complex legal issues with ethics

14/05/2024

Supreme Court of India, Judgment dated 14.05.2024,In Civil appeal no.2646 of 2009 in the matter of: Bar of Indian Lawyers Through its President Jasbir Singh Malik vs.D.K..Gandhi PS National Institute of
Communicable Diseases and Another along with other connected matters-Held- The legal profession is sui generis, I.e.,unique in nature and cannot be compared with any other profession. A service hired/availed of an advocate is service under " a contract of personal service, and is exclusinary part of " service "as defined in section 2(45) of Consumer Protection Act,2019.Conclusively a complaint alleging "deficiency in service against advocates practising in legal profession would not be maintainable under Consumer Protection Act.

Supreme Court of India-Judgment dated18.01.2023,Criminal Appeal No.1978 of 2013, in Re:Rajaram vs. Muruthachalam-Section...
18/01/2023

Supreme Court of India-Judgment dated18.01.2023,Criminal Appeal No.1978 of 2013, in Re:Rajaram vs. Muruthachalam-Section 138 NI Act-No financial capacity as shown in ITR examined by accused, Supreme Court of india reversed the order passed by High court in upholding the order of trial court of acquittal of accused. While reproducing the ratio laid down in the case of Basalingappa vs.Mudibasappa[(2019)5 418 SCC] Supreme Court held that the presumption under section 139 NIAct is a rebuttable presumption and the onus is on the accused to raise the probable defence. The standard of proof for rebutting the presumption is that of preponderance of probabilities. It is not necessary for the accused to come in the witness box in support of his defence as section 139 NIACT imposed on evidentary burden and not a persuasive burden.

16/06/2022

As per section 23(1) of The Maintenance and Welfare of Parents and Senior Citizens Act ,2007=Where any senior citizen, who, after the commencement of this act, has transferred by way of gift or otherwise, his property, subject to the condition that the transferee shall provide the basic amenities and basic physical needs, to the transferor and such transferee refuses or fails to provide such amenities and physical needs, the said transfer of property shall be deemed to has been made by fraud or coercion or under undue influence and shall at the option of the transferor be declared void by Tribunal.

30/11/2021

Supreme Court of India- Judgment dated 29.11.2021in Criminal Appeal No.1288of2021 in the matter of Pradeep S.Wodeyar vs.State of Karnataka- Held- Despite the order of Special Court/Court of Sessions taking cognizance of offences under section 193CrPC in absence of specific provisions such as section 36A(1) NDPSAct, section 5 PCAct, section 16A of NIA Act etc.without the case being committed to it by Magistrate under section 209CrPC is an irregularity
, it would not vitiate the proceedings in view of section 465CrPC unless failure of Justice is proved .In fact section 465 CrPC is applicable to interlocutory order such as an order taking cognizance and summon order as well. Settled principle of law-cognizance is taken of the offence and not the offender.

19/10/2021

Supreme Court of India- Judgment passed on 06.09.2021in Special Leave Petition(Civil) No.13146 of 2021 in the matter of Jitendra Singh vs.State of Madhya Pradesh and Others- Held- As per the settled proposition of law, mutation entry doesn't confer any right, title or interest in favour of the person and the mutation entry in the revenue record is only for the fiscal purpose. As per the settled proposition of law, if there is any dispute with respect to the title and more particularly when the mutation entry is sought to be made on the basis of the will, the party who is claiming title/right on the basis of will has to approach the appropriate Civil Court/Court and get his rights crystallized and only thereafter on the basis of the decision before the Civil Court necessary mutation entry can be made.

17/10/2021

Supreme Court of India, Judgment passed on 08.10.2021in the matter of Central Bureau Investigation(CBI)
and Another vs. Thommandru Hannah [email protected] Vijayalakshmi and Another-Held-Institution of a Preliminary Enquiry in cases of corruption is not made mandatory before the registration of an FIR under the Cr.PC,PC Act or even the CBI Manual. In case the information received by the CBI, through a complaint or a' source information ' under Chepter 8 of CBI Manual, discloses the commission of a cognizable offence,it can directly register a regular case instead of conducting a Preliminary Enquiry, where the officer is satisfied that the information discloses of a commission of a cognizable offences.However Preliminary Enquiry valuable in corruption cases is not to vest a right in the accused but to ensure that there is no abuse of the process of law in order to target public servant.

05/11/2020

Supreme Court of India-Judgment passed on 04,11.2020 in Criminal Appeal No.730 of 2020 in the matter of: Rajnesh vs. Neha &Anr.-Guidelines for maintenance -(a)(i) In successive claims filed for maintenance under different statutes like Special Marriage Act 1954,Hindu Marriage Act,1955,Hindu Adoption and Maintenance Act 1956,Code of Criminal Procedure ,1973etc.,courts would consider an adjustment or set off, of the amount awarded in previous proceedings while determining whether any further amount is to be awarded in subsequent proceedings (ii) In subsequent proceedings it is mandatory for applicant to disclose previous proceedings and orders passed therein.(iii)modifications of order passed ,if required ,would be done in same proceeding (b)Uniform format for both the parties in all matrimonial proceedings including proceedings pending in Family Courts/District Courts/Magistrate Courts, throughout the country. (c)Determining the quantum of maintenance is discretionary.(d)Maintenance will be awarded wef the day of application for maintenance.(e) Ex*****on of order/decree of maintenance would be enforced u/s 28A of HMAct u/s 20(6) of DVAct ,u/s 128 of Cr.PC or mostly u/s 51,55,58,60 r/w Order XXI of CPC as the case may be.

11/08/2020

Supreme Court of India-Judgment dated 11.08.2020 passed in Civil Appeal No. ...Diary No.32601 of 2015 in Re: Vinita Sharma vs. Prakash Sharma &Ors.-Held-The provisions contained in substituted Section 6 of The Hindu Succession Act 1956 confer status of coparcener of the daughter born before or after amendment in the same manner as son with same rights and liabilities and since right in coparcenary is by birth,father coparcener should not necessarily be living as on 09.09.2005. Conclusively Amendment of 2005 of Act has retrospective effect.Moreover matters pending in different courts relating same issue are directed to be decided within six months.

06/08/2020

Supreme Court of India - Judgment dated 05.08.2020 passed in Criminal Appeal No. 504 of 2020 in the matter of Gangadhar alias Gangaram versus State of Madhya Pradesh - Held - The presumption against the accused of culpability under section 35 and under section 54 of the Narcotics Drugs and Psychotropic Substances Act 1985(NDPS Act) to explain possession. are rebuttable.It does not despense with the obligation of the prosecution to prove the charge beyond all reasonable doubt. The presumptive provision with reverse burden of proof. does not sanction conviction on basis of probability. Section 35(2) of Act provides that a fact can be said to have been proved if it is established beyond reasonable doubt and not on preponderance of probability. The right of the accused to a free trial as guaranteed under Article 21 of Construction of India cannot be whittled down.

31/07/2020

Supreme Court of India - Judgment dated 31.07.2020 passed in Civil Appeal No
7764 of 2014 in the matter of Ravinder Kaur Grewal & Ors. Vs Manjit Kaur & Ors. - Upheld - The document executed merely by way of memorandum of family settlement does not require registration and consent parties are estopped from denying the ex*****on of it on technical or trival grounds.

29/05/2020

Supreme Court of India- judgment passed on 27.05.2020 in Civil Appeal No.9693 of 2013 in the matter of Chairman-cum-Managing Director-Mahanadi Coalfields Limited-Concluded -(1) Employer has a right to withhold the gratuity during pendency of disciplinary proceedings and (2) Disciplinary authority has powers to impose penalty of dismissal /major penalty upon employee even after his attaining the age of superannuation as disciplinary proceedings were initiated while employee was in service(Majority judgment).[However as per minority view penalty and not the substantive penalty including dismissal ,can be inflicted upon retired employee.]

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