FOOD ADULTERATION GROUND OIL = Thus it is clear from the above conclusions of the division bench that mere delay in launching the prosecution is not by itself a ground for quashing the case unless the accused shows that prejudice has been caused to him on account of that delay. In the present case it is true that there is delay of nearly 2 years in launching the prosecution from the date of lifting the sample. The petitioners however could not place any material before the court to show that the second sample of groundnut oil has become useless or unfit for analysis by the CFL. This court cannot assume the role of CFL i.e. an expert body/ food analyst and pronounce that the second sample has become unfit for analysis. The plea of the petitioners regarding the words "best before" is by itself is not a ground for quashing the case and the reasons for this conclusion of mine are already mentioned. 13. It may now be noted that in the various decisions cited by the petitioners counsel in support of his contention that delay by itself is a ground for quashing the case, the above division bench decision of this court was not taken to the notice of the learned Judges who decided those cases. It may be noted that the above division bench decision is binding on me and hence the decisions cited by the petitioners counsel which are all decisions of single Judges cannot help the petitioners. 14. Accordingly, in view of the reasons aforesaid and the law laid down in the aforesaid division bench decision of this court, it follows that this petition has to fail and the same is accordingly dismissed. It goes without saying that petitioners can pursue their remedies before the trial court.

THE HON'BLE SRI JUSTICE N. RAVI SHANKAR      

CRIMINAL PETITION No.7735 of 2009  

18.01.2012

J. Shravan Kumar and others

State of A.P., rep. by the Public Prosecutor

Counsel for Petitioner  :  Sri Aadesh Varma

Counsel for Respondent  :  Public Prosecutor


? CASES REFERRED:    
1. 2007 (1) FAC 193
2. 2009 (2) FAC 228
3. 2007 (1) FAC 42
4. 2006 (1) FAC 235
5. 2006 (1) FAC 104
6. 2011 (1) FAC 146
7. AIR 1981 SC 611
8. 2009 (2) FAC 366
9. 2006 (1) FAC 157
10. 2007 (1) ALD (Cri) 316 = 2007 CriLJ 1112


ORDER:-                
        In this petition under Section 482 of the Code of Criminal Procedure, 1973
(for short Code) the petitioners herein who are A-1, A-3, A-4 and A-5 in
C.C.No.1021 of 2006 on the file of the Court of the XI Metropolitan Magistrate
(Mobile Court), Ranga Reddy District (trial court), are seeking quashing of the
said case against them.

2.      The aforesaid case has been instituted by Food Inspector, Division-I,
Ranga Reddy District, and the offence alleged against the petitioners is sale of
adulterated groundnut oil punishable under Section 2(ia)(m) and Section 7(i) r/w
Section 16(1)(a)(i) of the Prevention of Food Adulteration Act, 1954 (for short
Act).  The 1st petitioner/A-1 is said to be the vendor of the groundnut oil.
The complaint reads that the sample was lifted on 07.07.2004.  The public
analyst report of the State Food Laboratory (SFL) is dated 10.08.2004.  That
report shows that the sample did not conform to the standard of beliers test
(turbidity temperature - acetic acid method) and is therefore adulterated.  It
is stated that the complaint was filed on 26.06.2006 in the trial court.

3.      The plea of the petitioners is that there is a delay of more than about 1
year 10 months in filing a complaint or launching prosecution from the date of
analyst report and nearly 2 years from the date of lifting samples and therefore
the petitioners have lost their valuable right of getting the second sample of
groundnut oil analysed by the Central Food Laboratory (CFL) and consequently the
case should be quashed.  It may be noted here that according to Section 13 of
the Act the report of the CFL analyst supersedes the report of the SFL analyst
and if the report of the former shows that there is no adulteration, the
prosecution cannot be launched.  In view of this legal position, Sri Adesh Varma
the learned counsel for petitioners relying upon the above delay factor
contended that because of the above delay in launching the prosecution the
second sample has become unfit for analysis by the CFL and consequently the case
should be quashed as the petitioners were denied the valuable opportunity of
getting the second sample analysed by the CFL as contemplated under Section
13(2) of the Act.

4.      On the other hand, the learned Additional Public Prosecutor pointed out
that petitioners can raise all their contentions in the trial court including
the plea for discharge and therefore this court should not interfere in the
matter.  He also pointed out that except the above contention of the petitioners
counsel the petitioners could not place any material before the court or could
not cite any circumstance to show that the second sample has become unfit for
analysis and consequently this is sufficient to dismiss this petition.

5.      Thus the point is whether the aforesaid criminal case is liable to be
quashed on the ground of delay which is already mentioned in launching the
prosecution.

6.      Sri Adesh Varma relied upon Food Inspector vs. Narayana Umamaheswara1, The  
Food Inspector vs. N.V.Raghavan Nair2, B.Bhaskar and another vs. State of Andhra
Pradesh3, Vinod Namviar vs. State of A.P.4, Naresh Kumar Kedia v. Director
I.P.M.5, P.Sudhakar vs. State of A.P.6, Nebh Raj vs. The State (Delhi Admn.)7,
Sri Shravan Kumar Agarwal vs. The State of A.P.8 and Konda Suryanarayana vs. The
State of A.P.9 in support of his contention that delay of 1 year 10 months in
this case in launching prosecution is a good ground for quashing the same.

7.      Before the decisions cited by Sri Adesh Varma are considered, it must be
noted that the record would admittedly show that in the present case the sample
of groundnut oil was lifted on 07.07.2004 and the state public analyst report
was obtained on 10.08.2004 but the prosecution was launched on 27.06.2006 i.e.
with a delay of nearly two years from the date of lifting the sample.
Undoubtedly there is this delay in launching the prosecution.

8.      In the course of arguments Sri Adesh Varma at one stage pointed out that
on the lable of the groundnut oil packet in question the words "best before six
months" were printed indicating that the said oil was to be used within six
months from the date of its manufacture or extraction or whenever it is made
ready for marketing.  That lable was not produced.  However basing upon the said
words "best before six months", Sri Adesh Varma argued that since the second
sample could not be got analysed by the accused within six months from the date
of lifting the sample by the CFL, the food inspector must be held to have denied
to them the valuable right under Section 13(2) of the Act which they have and
therefore the prosecution must be quashed on that ground as after six months the
petitioners have not given any warranty or assurance that the oil in question
would retain its quality.

9.      The answer to the above contention lies in Rule 32 of the Prevention of
Food Adulteration Rules, 1955 (for short Rules).  Explanation-VIII given beneath
Rule 32(i) of the rules says what is meant by the use of the words "best
before".  Explanation VIII reads as follows:
"(i) "Best before" means the date which signifies the end of the period under
any stated storage conditions during which the product will remain fully
marketable and will retain any specific qualities for which tacit or express
claims have been made.  However, provided that beyond the date the food may
still be perfectly satisfactory.
(ii) In addition to the date of best before, any special conditions for the
storage of the food shall be declared on the lable if the validity of the date
depends on such storage."

10.     From Explanation-VIII, it would be thus clear that the words "best before"
do not signify that the product will become useless or unfit for analysis after
the expiry of the said period, but the product may still be satisfactory which
means that it may be fit for analysis even after the said date.  Admittedly the
storage conditions are not said to be declared on the lable on the groundnut oil
in question.  Hence, the above contention of petitioners counsel based on the
words "best before six months" even if they are printed on the lable of the
groundnut oil packet in question, cannot be a ground by itself to quash the
case.

11.     Then turning to the contention of the petitioners counsel that the mere
delay of nearly 2 years in filing the complaint from the date of lifting of the
sample, is sufficient to quash the prosecution it would be relevant to note what
a division bench of this court have held in Handi Instant Foods vs. State of
A.P.10 (judgment dated 15.11.2006).  Their Lordships were on a reference
considering the question whether delay in launching prosecution or filing of
complaint after the samples are lifted is by itself sufficient to quash the case
under Section 482 of the Code.  The division bench considered the previous case
law on the point including the decision of the Hon'ble Supreme Court in Nebh
Raj's case (7 supra and cited by petitioners counsel) and held that the said
delay by itself is not a ground for quashing the case.  The division bench
ultimately observed in paras-13 to 15 of the said judgment and they read as
follows.
"13. The Prevention of Food Adulteration Act, 1954 was enacted by the Parliament
to prevent the adulteration of food. Pure, fresh and healthy food is essential
for the health of the people. Adulteration of food stuffs was so rampant,
widespread and persistent and as there was need to take a drastic remedy in the
form of a legislation, which is the need of the hour, to check this kind of
anti-social evil, this Act was enacted to correct and remedy the widespread evil
of food adulteration to ensure the sale of wholesome food to the people. It is
well settled that wherever possible, without unreasonable stressing and
straining in all such statutes should be construed in a manner, which would
suppress the mischief, advance the remedy, promote its object, prevent its
subtle evasion and foil its artful circulation. As per the various judgments of
the Supreme Court, the provisions of the Act are required to be observed in the
strict adherence to safeguard the interest of the consumers of the article of
food. Stringent laws will have no meaning if the offenders get away on some or
the other technicalities.

14. Whenever there is a report of the Analyst that the food article is
adulterated, by the date of filing of the complaint, there was prima facie
material to show that the accused committed the offence. In order to prove his
innocence, it is for the accused to make an application to send the second
sample to the Central Laboratory for analysis by exercising his right provided
under Section 13(2) of the Act and if the Central Food Laboratory differs with a
view of the Public Analyst, the accused can be given the benefit of doubt. If
there is a report from the Central Food Laboratory after sending the second
sample for analysis that the food sample is not fit for analysis due to lapse of
time, the accused is entitled for quashing the proceedings. But, without sending
the sample to the Public Analyst either on the ground that there was time gap
from the date of collecting the sample and filing the complaint or that the date
fixed for using the food article has expired or that the period fixed for "best
before" use has been crossed, the accused is not entitled for quashing the
proceedings without showing that prejudice has been caused on account of delay
caused in filing the complaint and serving the copy of the report of Public
Analyst on the accused under Section 13(2) of the Act.

15. For the foregoing reasons, we hold that when a complaint is filed under the
Prevention of Food Adulteration Act against the accused for adulteration of food
article, the prosecution is not liable to be quashed against him on the ground
that he was denied a right under Section 13(2) of the Act for sending the second
sample to the Central Food Laboratory for analysis on account of delay caused in
filing the complaint and furnishing the Analyst Report to the accused without
there being any prejudice caused to him is shown."

12.     Thus it is clear from the above conclusions of the division bench that
mere delay in launching the prosecution is not by itself a ground for quashing
the case unless the accused shows that prejudice has been caused to him on
account of that delay.  In the present case it is true that there is delay of
nearly 2 years in launching the prosecution from the date of lifting the sample.
The petitioners however could not place any material before the court to show
that the second sample of groundnut oil has become useless or unfit for analysis
by the CFL.  This court cannot assume the role of CFL i.e. an expert body/ food
analyst and pronounce that the second sample has become unfit for analysis.  The
plea of the petitioners regarding the words "best before" is by itself is not a
ground for quashing the case and the reasons for this conclusion of mine are
already mentioned.

13.     It may now be noted that in the various decisions cited by the petitioners
counsel in support of his contention that delay by itself is a ground for
quashing the case, the above division bench decision of this court was not taken
to the notice of the learned Judges who decided those cases.  It may be noted
that the above division bench decision is binding on me and hence the decisions
cited by the petitioners counsel which are all decisions of single Judges cannot
help the petitioners.

14.     Accordingly, in view of the reasons aforesaid and the law laid down in the
aforesaid division bench decision of this court, it follows that this petition
has to fail and the same is accordingly dismissed.  It goes without saying that
petitioners can pursue their remedies before the trial court.

______________________  
N. RAVI SHANKAR, J  
18th January 2012

Section 139 of the Negotiable Instruments Act reads as follows: 139. Presumption in favour of holder: It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in Section 138 for the discharge, in whole or in part, or any debt or other liability. 9. The presumption under Section 139 of the Act is rebutable presumption, but the burden of proving that a cheque had not been issued in discharge of a debt or liability is on the accused.

HON'BLE SRI JUSTICE R.KANTHA RAO      

Criminal Appeal No.1108 OF 2006


06-01.2012

M/s Laila Finance Ltd

M/s S.A. Engineering Services and others

Counsel for appellant:  Sri I. Gopal Reddy
                               
 Counsel for respondents 1 &2: Sri M.Subba Reddy
Counsel for Respondent No.3 : Public Prosecutor

? Cases referred:
1 (2002)6 SCC 426


JUDGMENT:  


        This criminal appeal is filed by M/s Laila Finance Ltd, Panjagutta,
Hyderabad against the judgment dated 17.04.2006 passed by the XIV Additional
Chief Metropolitan Magistrate, Hyderabad, in C.C.No.No.1294 of 2001 acquitting
the respondents/accused for the offence under Section 138 of the Negotiable
Instruments Act.

2.      The brief facts necessary for considering the appeal may be stated as
follows:
        The appellant is the company registered under the Companies Act doing
business in finance, hire purchase, bill discounting and lease.  The second
respondent (A2) is the sole proprietor of respondent No.1(A1).  Originally Mr
Mohd.Akber, husband of the first respondent was the proprietor of M/s National
Business Trust.  According to the appellant, after the death of Mr. Mohd. Akber,
Smt. Saleema Begum, the second respondent apart from succeeding to all his
properties became the proprietrix of M/s National Business Trust also.

3.       Mr Mohd. Akber entered into hire purchase agreement on behalf of M/s
National Business Trust with the appellant company, during his life time, he
paid two instalments due under the agreement and having failed to pay the
remaining instalments, an amount of Rs.14,30,000/-  became due.  It is the
version of the appellant that after the death of Mr Mohd. Akber having come to
know that the second respondent Saleema Begum succeeded to his properties and  
also became the proprietrix of M/s National Business Trust, approached her on
28.08.000 requested to pay the amount of Rs.14,30,000/-.  Pursuant to the
request made by the representative of the appellant, the second respondent gave
a written undertaking agreeing to pay the dues payable by National Business
Trust.  However,  she failed to pay the amount and when the representative of
the appellant approached her on 02.09.2001 and demanded payment of the amount,  
respondent No.2/A2 in the capacity of proprietrix of A1 agreed to discharge the
liability of National Business Trust and issued a cheque for an amount of
Rs.14,30,000/- towards full and final settlement of the amount due under the
hire purchase agreement vide cheque bearing No.553575, dated 03.09.2001 drawn on
State Bank of India, IFB Branch, Vijayawada in favour of the appellant.
Thereafter, the appellant presented the cheque for encashment in its bank -
State Bank of India, IFB Branch, Somajiguda, Hyderabad but the said cheque was
dishonoured with an endorsement funds insufficient vide memo dated 10.09.2001.
Thereafter, the appellant got issued a legal notice dated 25.09.2001 which was
served on the second respondent, but was returned with an endorsement refused
dated 01.10.2001.  The respondent No.2 did not issue any reply notice nor did
she make the payment of the cheque amount.  On that, the appellant filed the
complaint before the learned Magistrate under Section 138 of the Negotiable
Instruments Act.

4.      In the course of the trial before the learned Magistrate, the appellant
examined its authorized signatory Mr G.S.Raju as PW.1 and marked through him
Exs.P.1 to P.15.  When examined under Section 313 Cr.P.C., the second respondent  
denied the incriminating material found against her in the evidence of
prosecution witnesses.  She herself examined as DW1 after obtaining permission
of the learned Magistrate under Section 315 Cr.P.C. and marked Exs.D1 to D.13.

5.      The learned trial Court upon considering the entire evidence on record
held that the appellant failed to establish that the second respondent
voluntarily undertook to pay the amount of Rs.14,30,000/- in the capacity of the
proprietrix of M/s National Business Trust and that she voluntarily issued
Ex.P.7-cheque in discharge of any legally enforceable debt or other liability
and therefore, she is not liable for punishment under Section 138 of the
Negotiable Instruments Act.

6.      The crucial aspect requires mention in this context is that in the hire
purchase agreement executed by Mr Mohd. Akber, the second respondent who is his  
wife stood as one of the guarantors.  This fact is not in dispute.  She also did
not dispute her signature on Ex.A.7 cheque. She only contended that she had not
issued the cheque voluntarily, but it was obtained by the appellant by
exercising undue influence by sending some papers and blank cheques to her.  She
also denied to have voluntarily addressed Exs.P.5 and P.6- letters to the
appellant.  She further denied to have stood as guarantor under Ex.P.4
promissory note.  The learned trial Court accepted the contention of the first
respondent and held that she is not liable for punishment under Section 138 of
the Negotiable Instruments Act.
7.      Now the point for determination in this appeal is:
Whether the order of acquittal passed by the learned Magistrate acquitting the
respondent for the offence under Section 138 of the Negotiable Instruments Act
be sustained.

8.      Section 139 of the Negotiable Instruments Act reads as follows:
139. Presumption in favour of holder:
It shall be presumed, unless the contrary is proved, that the holder of a cheque
received the cheque of the nature referred to in Section 138 for the discharge,
in whole or in part, or any debt or other liability.

9.      The presumption under Section 139 of the Act is rebutable presumption, but
the burden of proving that a cheque had not been issued in discharge of a debt
or liability is on the accused.  In the instant case, the second respondent did
not dispute her signatures on Ex.A.4 promissory note whereunder she stood as
guarantor and Exs.P.5 and P.6 letters addressed by her to the appellant
undertaking to discharge the debt payable by M/s National Business Trust.  She
however, denied the fact that after the death of her husband, she became the
proprietrix of M/s National Business Trust.  The appellant marked the above said
documents through PW.1, its authorized representative.  Since the second
respondent admitted her signature on Ex.P.7-cheque and the other documents
referred above, the burden lies on her to prove that the cheque issued by her
was not for discharge of debt or liability legally enforceable.  In fact, she
did not adduce any evidence to rebut the presumption against her under Section
139 of the Negotiable Instruments Act.  The learned trial Court, however,
considering the fact that the date on the cheque was shown with different ink
observed that the appellant might have obtained the cheque as well as the other
documents by using undue influence against the second respondent. Absolutely,
there was no basis for the learned Magistrate to record such a finding.   The
important aspect in this case is that admittedly, the second respondent stood as
guarantor in the hire purchase agreement along with another guarantor.  In ICDS
LTD v BEENA SHABEER AND ANOTHER1, the Supreme Court while dealing with identical      
issue held as follows:
"The word "any cheque" and "other liability" occurring in Section 138 are the
two key expressions which stand as clarifying the legislative intent so as to
bring the factual context within the ambit of the provisions  of the statute.
These expressions leave no manner of doubt that for whatever reason it may be,
the liability under Section 138 cannot be avoided in the event the cheque stands
returned by the banker unpaid. Any contra-interpretation would defeat the intent
of the legislature.  The High Court got carried away by the issue of guarantee
and guarantor's liability and thus has overlooked the true intent and purport of
Section 138 of the Act.

  In view of the specific language used by the legislature, the question of
consideration of the arguments based on Sections 126 and 128 of the Contract Act
would not arise.  Moreover, it would not be desirable for the Supreme Court to
express any view since that may have some effect as regards the merits."


10.     The above judgment in the case of ICDS Limited was cited before the
learned Magistrate, but the learned Magistrate erroneously held that the said
decision is not applicable to the facts of the present case.  The learned
Magistrate further held that the second respondent could be able to rebut the
presumption against her under Section 139 of the Negotiable Instruments Act.
There was no evidence let in by the second respondent nor was there any
circumstance in favour of the second respondent justifying the learned
Magistrate to hold that she could be able to rebut the presumption.  In view of
the judgment of the Supreme Court in ICSC Limited even though there is no proof
placed by the appellant showing that after the death of her husband, the second
respondent herein became the proprietrix of M/s National Business Trust, she
admittedly being one of the guarantors of the hire purchase agreement entered
into by her husband on behalf of M/s National Business Trust and having issued
the impugned cheque in discharge of the liability under the said hire purchase
agreement is liable for punishment under Section 138 of the Negotiable
Instruments Act for the dishonour of the said cheque.  It is erroneous to hold
that the cheque was not issued in discharge of any legally enforceable debt or
liability and that complaint was not maintainable against the second respondent.
The learned trial Court overlooked the crucial documents viz. Ex.P.4 promissory
note and Exs.P.5 and P.6 letters which contain the signatures of the second
respondent.  There was an undertaking in Exs.P.5 and P.6 letters by the second
respondent that she would discharge the debt/liability under the hire purchase
agreement.  The oral and documentary evidence adduced by the appellant clearly
established that the respondent was a guarantor under the hire purchase
agreement, she undertook to repay the debt due under the hire purchase agreement
by her letters Exs.P.5 and P.6 addressed to the appellant and subsequently
issued the impugned cheque towards discharge of the said debt/liability under
the hire purchase agreement.    All these facts have been proved by the
appellant positively by examining PW.1 and marking Ex.P.5 to P.7. Absolutely,
there was no material before the learned Magistrate to record a finding that all
these documents have not been voluntarily executed by the appellant.  If the
said documents were obtained by force, fraud or undue influence, the burden to
prove the said fact is on the second respondent.  But, absolutely there was no
evidence forthcoming on her behalf to prove the said fact.  The finding recorded
by the learned Magistrate to the effect that the second respondent did not issue
the cheque and execute the other documents voluntarily is contrary to the
evidence on record and is nothing but perverse.  This Court in an appeal against
acquittal will not normally interfere with the findings recorded by the trial
Court unless they are perverse or not based on evidence.  In this case, the
interference is required because the findings recorded by the leaned Magistrate
are contrary to the evidence on record besides being perverse.

11.      For the foregoing reasons, the judgment dated 17.04.2006 passed by the
XIV Additional Chief Metropolitan Magistrate, Hyderabad, in C.C.No.No.1294 of
2001 acquitting the second respondent for the offence under Section 138 of the
Negotiable Instruments Act is set aside and the second respondent is found
guilty.  The second respondent/accused is sentenced to under go simple
imprisonment for a period of six months and to pay a fine of Rs.5,000/-, in
default to pay fine amount, the second respondent to undergo simple imprisonment
for a period of one month.  The appeal is succeeds and the same is allowed.

__________________  
Date:  06.01.2012
R. KANTHA RAO, J

It is trite that compensation for loss of life or limb is payable on proof of negligence. The material filed by the petitioner does not ipso facto prove negligence. Even though it is the plea of the petitioner that on account of over head wire loosely hanging, he came into contact with the live wire, there is no evidence to substantiate this plea. As noted earlier, letter, dated 28.07.2011, of Additional Assistant Engineer, Alur, does not support the plea of the petitioner.

HON'BLE SRI JUSTICE C.V.NAGARJUNA REDDY        

WRIT PETITION No.34856 of 2011

02.01.2012
     
N.Uligappa (Minor), Reptd by His father-N.Malingappa  

The Chairman & Managing Director,APCPDCL, Hyderabad and another  

Counsel for the Petitioner: Sri G.Sanyasi Rao

Counsel for the Respondents: Sri O.Manoher Reddy,Standing Counsel for APCPDCL  


?  CITATIONS:
(1997) 7 SCC 298

ORDER:
        This Writ Petition is filed for a Mandamus to direct the respondents to
pay a sum of Rs.8 lakhs to the petitioner towards compensation for loss of his
left leg and right hand.
        I have heard Sri G.Sanyasi Rao, learned counsel for the petitioner and
perused the record.
        The petitioner, who is a minor, represented by his father and natural
guardian, is unfortunate to have lost his left leg and right hand due to
electrocution on 04.12.2010. In this Writ Petition, the petitioner sought for
payment of compensation alleging negligence on the part of the respondents in
maintaining 33 KV over head lines.
        In para 5 of the affidavit, filed in support of the Writ Petition, it is
averred as under: -
"I submit that the Additional Assistant Engineer, Rural, Alur, after knowing the
accident, immediately rushed to the accident spot along with Line
Inspector/Halaharvi and inspected the spot. And he immediately, addressed a
letter No.AE/R/ALR/F Doc/D.No.39/1, dated 28.07.2011, to Assistant Divisional
Engineer, Operation Sub-Division, Alur, narrating the accident and taking
further necessary action to tighten the wire. Copy of letter of Additional
Assistant Engineer, Alur is enclosed as (Ex.P-3)."

        A perusal of the letter, dated 28.07.2011, referred to in the above
reproduced paragraph, does not show that the Additional Assistant Engineer has
referred to tightening of the wire as claimed in the affidavit. On the contrary,
the said letter shows that a house was newly constructed under 33 KV line and
that the petitioner has gone on the terrace of the building and came into
contact with the live wire. The Assistant Divisional Engineer, Operation Sub-
Division, Aluru in his letter, dated 28.07.2011, addressed to the Divisional
Electrical Engineer, Operation Division, APCPDCL, Adoni, has also given the same
opinion. He, however, requested to sanction the exgratia on humanitarian
grounds.
        It is trite that compensation for loss of life or limb is payable on proof
of negligence. The material filed by the petitioner does not ipso facto prove
negligence. Even though it is the plea of the petitioner that on account of over
head wire loosely hanging, he came into contact with the live wire, there is no
evidence to substantiate this plea. As noted earlier, letter, dated 28.07.2011,
of Additional Assistant Engineer, Alur,  does not support the plea of the
petitioner.
In Chairman, Grid Corporation of Orissa Ltd (GRIDCO)              V. Sukamani
Das1, the Supreme Court held that actions of tort and negligence are required to
be established initially by the claimants; that the mere fact that the wire of
the electric transmission line had snapped and the deceased had come into
contact with it and died by itself was not sufficient for awarding compensation;
and that the Court was required to examine whether the wire had snapped as a
result of any negligence on the supplier, as a result of which the deceased has
come into contact with the live wire. The Court further held that the licensee
deserved an opportunity to prove that proper care and precautions were taken in
maintaining the transmission lines and yet the wires had snapped because of
circumstances beyond their control or unauthorised intervention of third parties
and that such disputed questions of fact could not be decided in exercise of
jurisdiction under Article 226 of the Constitution of India.
In the absence of any proof of negligence adduced by the petitioner in the
present case, it is not possible for this Court to grant the relief to the
petitioner for payment of compensation for the alleged negligence on the part of
the respondents.
        As regards the claim for exgratia, Sri O.Manoher Reddy, learned Standing
Counsel for Andhra Pradesh Central Power Distribution Company Limited,
representing the respondents, submitted that the respondents will consider the
petitioner's claim for exgratia in terms of letter No.ADE/O/ALR/F.Doc/D.No.473,
dated 28.07.2011, of the Assistant Divisional Engineer, Operation Sub-Division,
Alur addressed to the Divisional Electrical Engineer, Operation Division,
APCPDCL, Adoni, within a period of four weeks from the date of receipt of a copy
of this order and communicate the decision to the petitioner.
        In this view of the matter, while declining to entertain the Writ Petition
for grant of compensation, the respondents are directed to consider the
petitioner's case for payment of exgratia within the time indicated above. The
petitioner is permitted to avail the common law remedies for claiming
compensation.
        Subject to the above direction, the Writ Petition is dismissed.
As a sequel to dismissal of the Writ Petition, W.P.M.P.No.43346 of 2011 filed by
the petitioner for interim relief is dismissed as infructuous.
     
__________________________  
C.V.NAGARJUNA REDDY, J    
02nd January 2012

cell phone deficiency in service , consumer court has no jurisdiction= 5. In line with the judgement in the case of M. Krishnan (Supra), this Commission vide its order dated 21.5.2010 (Revision Petition No. No.1703 of 2010) in the case of Prakash Verma Vs. Idea Cellular Ltd. and Anr., dismissed the complaint filed by the petitioner holding that any dispute between the subscriber and the telegraph authority can be resolved by taking recourse to arbitration proceedings only. The Special Leave Petition filed by the petitioner was dismissed by the Apex Court vide its order dated 1.10.2010. In view of these judgements of the Apex Court which are binding on all the courts including Consumer Fora, no fault could be found with the impugned order. The order of this Commission in the case of Kumari Ambika Singh cannot provide any relief to the petitioner since in that case there was no reference to the aforesaid judgements of the Apex Court and the revision petition came to be dismissed in liminie and hence there was no point raised by the parties in respect of question of maintainability of the dispute under the Consumer Protection Act, 1986. In any case, the ratio laid down by the Apex Court in respect of the dispute under section 7B of the Indian Telegraph Act, as is the case with the present dispute as well, has to be followed and there should not be any doubt about it. The revision petition devoid of any merit, therefore, is liable for dismissal and the same is accordingly dismissed but with no order as to costs.

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NEW DELHI
REVISION PETITION NO. 3780 OF  2011
(Against the order dated 07.07.2011 in Appeal No. 862/2011 of the
Haryana State Consumer  Disputes Redressal Commission, Panchkula)
Lokesh Parashar Advocate R/o Holiwara Mohalla V.P.O., Tegaon and District Faridabad (Haryana)	........ Petitioner (s)
Vs.
1.  M/s Idea Cellular Ltd. A-30, Mohan Co-operative Industrial  Estate Mathura Road New Delhi-110044 Through Its Managing Director/Principal Officer 2. M/s Green Cellular I-A/268, Neelam Bata Road NIT, Faridabad Through its Proprietor/Partner	........ Respondent (s)
BEFORE:
HON'BLE MR. ANUPAM DASGUPTA, PRESIDING MEMBER
HON'BLE MR. SURESH CHANDRA,  MEMBER
For the Petitioner         :   Mr. Madhurendra Kumar, Advocate
Pronounced on :    20th April  2012

ORDER

PER SURESH CHANDRA, MEMBER

For the reasons stated in the application for condonation of delay, the delay of 25 days in filing the present revision petition is condoned.

2.       We have heard Mr. Madhurendra Kumar, learned counsel for the petitioner and perused the record.

3.       Briefly put, the petitioner obtained a mobile connection of the respondent No.1 Company bearing No.9911950795 through respondent No.2. According to the petitioner, at the time of obtaining the connection, he was assured that the validity of the mobile was upto February 2007. Later on, he got it extended upto July 2007 after making some payments. It is the grievance of the petitioner that the respondents did not provide the cellular phone services to him and hence he filed a complaint before the District Forum, Faridabad alleging deficiency in service on the part of the respondents who were made OPs 1 & 2 respectively. Upon notice, the respondents contested the consumer complaint and filed their written statement disputing the correctness of the averments made in the complaint of the petitioner.  During the pendency of the complaint, the respondents also moved an application under Order 7 Rule 11 CPC for dismissal of the complaint on the ground that the Consumer Forum has no jurisdiction to try the complaint which was maintainable before the Arbitrator as provided in section 7B of the Indian Telegraph Act. Referring to the  judgement of the Apex Court in the case of General Manager, Telecom Vs. M. Krishnan and Anr. [(2009) CPJ 1062] and another judgement of the Apex Court in the case ofPrakash Verma Vs. Idea Cellular Ltd. and Anr. (Civil Appeal No.24577 of 2010) the District Forum held that it did not have jurisdiction to try the complaint in question and hence dismissed the same as not maintainable vide its order dated 24.5.2011.  Aggrieved by this order of the District Forum, Faridabad, the petitioner challenged the same before the State Consumer Disputes Redressal Commission, Haryana (Panchkula), (‘State Commission’ for short) by filing an appeal before it. The State Commission upheld the order of the District Forum and dismissed the appeal of the petitioner vide its impugned order dated 7.7.2011 which is now under challenge through the present revision petition.

4.       We agree with the view taken by the District Forum and the State Commission to the effect that the present complaint is not maintainable before the Consumer Forum. This view is in accordance with the judgement of the Apex Court in the case of M. Krishnan and Anr. (Supra). Learned counsel for the petitioner has, however, contended that in a recent case of Kumari Ambika Singh Vs. Bharat Sanchar Nigam Ltd. (R.P. No.371 of 2011) decided on 28.2.2011, this Commission has entertained the revision petition involving a similar consumer dispute. He has further submitted that Proviso (B) to section 14 (a) (iii) of the Telecom Regulatory Authority of India Act, 1997 specifically provides that the complaints of individual consumers maintainable before the Consumer Fora under the Consumer Protection Act, 1986 shall continue to be dealt with by the Consumer Fora in spite of establishment of Appellate Tribunal under TRAI Act 1997. In view of this, learned counsel contended that the Fora below erred in holding that the dispute in question is not maintainable before them and hence the impugned order is liable to be set aside and hence the matter be sent back to them for fresh consideration in accordance with the provisions of law. We are not impressed by the contentions raised by counsel for the petitioner. Out of the two contentions, reference to the provisions of section 14 of the TRAI Act 1997 is not relevant since the same is in respect of the jurisdiction of Telecom Disputes Settlement and Appellate Tribunal from which the consumer complaints maintainable before the Consumer Fora under the Consumer Protection Act 1986 have been excluded. The only question for consideration in this case is as to whether a consumer complaint is maintainable before the Consumer Fora after the judgement of the Apex Court in the case of  M. Krishnan (supra) in which their Lordships of the Apex Court have made the following observations while accepting the appeal of the Telecom Department:-

“6. In   our    opinion    when       there   is    a     special    remedy provided        in   Section     7-B       of    the     Indian   Telegraph Act regarding disputes  in respect of telephone bills, then the remedy under the Consumer Protection Act is by implication barred.  Section 7-B of the Telegraph Act reads as under:-

          "S. 7B Arbitration of Disputes :-

          (1)       Except as otherwise expressly provided in  this Act, if any dispute concerning any telegraph line, appliance or apparatus arises between the  telegraph  authority  and the  person  or   whose  benefit the line, appliance or apparatus is, or  has   been provided,  the  dispute shall be        determined by arbitration and  shall,  for  the purpose of such determination, be referred to an   arbitrator  appointed by  the  Central Government either specifically for the determination of that dispute or   generally  for  the  determination of disputes under this Section.

         (2)        The  award  of  the  arbitrator appointed  under sub-s. (1) shall be conclusive between the  parties to the dispute and  shall  not  be questioned in any Court."

Rule 413 of the Telegraph Rules provides that all services relating to telephone are subject to Telegraph Rules. A telephone connection can be disconnected by the Telegraph Authority for   default  of    payment  under Rule 443  of  the Rules.

7. It is well settled that the special law overrides the general law.  Hence, in our opinion the High Court was not correct in its approach.”

5.       In line with the judgement in the case of M. Krishnan (Supra), this Commission vide its order dated 21.5.2010 (Revision Petition No. No.1703 of 2010) in the case of Prakash Verma Vs. Idea Cellular Ltd. and Anr., dismissed the complaint filed by the petitioner holding that any dispute between the subscriber and the telegraph authority can be resolved by taking recourse to arbitration proceedings only. The Special Leave Petition filed by the petitioner was dismissed by the Apex Court vide its order dated 1.10.2010.  In view of these judgements of the Apex Court which are binding on all the courts including Consumer Fora, no fault could be found with the impugned order. The order of this Commission in the case of Kumari Ambika Singh cannot provide any relief to the petitioner since in that case there was no reference to the aforesaid judgements of the Apex Court and the revision petition came to be dismissed in liminie and hence there was no point raised by the parties in respect of question of maintainability of the dispute under the Consumer Protection Act, 1986. In any case, the ratio laid down by the Apex Court in respect of the dispute under section 7B of the Indian Telegraph Act, as is the case with the present dispute as well, has to be followed and there should not be any doubt about it. The revision petition devoid of any merit, therefore, is liable for dismissal and the same is accordingly dismissed but with no order as to costs.

...........................................

(ANUPAM DASGUPTA)

PRESIDING MEMBER

..........................................

(SURESH CHANDRA)

MEMBER

SS/   

Pension Aawart Thev Yojana ” 3. The case of the complainants before the District Forum was that he had subscribed to a pension scheme of the OP/Bank called the “Pension Aawart Thev Yojana”, under which deposit of Rs.3000/- per month had to be made for a total of 63 months. The maturity value of this investment i.e. Rs.2,78,670/- was to be paid to the nominee of the subscriber after his death. The subscriber was also to get a monthly pension of Rs.3,252/- from the date of maturity till his death. Allegedly, after completion of the period of 63 months on 30.6.2005, no pension was paid by the respondent/Bank and hence, a consumer complaint was filed on 29.6.2007. The District Forum came to a conclusion that non-payment of the pension assured under the scheme was not justified. The OP/Bank did not have the right to refuse to pay the this amount at maturity. The contention of the OP/Bank was that the scheme had been discontinued and therefore they could either pay the maturity value or interest at the prevailing rate. But, pension as contemplated under the scheme was not payable due to discontinuation of the scheme itself. 10. The impugned order has modified the award of the District Forum only to the extent of deletion of the direction to pay the monthly pension of Rs.3252/-. This has been explained in the impugned order. As the scheme of deposit itself had been discontinued, the question of monthly pension would not arise. The other directions of the District Forum to pay the maturity value of Rs.278760/- together with 7% interest, Rs.10,000/- towards compensation and Rs.5,000/- towards costs, have remain unchanged in the impugned order.

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION

NEW DELHI

REVISION PETITION NO. 3506 OF 2011

(Against the order dated 31.3.2011in First Appeal Nos.A/10/817, A/10/818 & A/10/819 of the State Commission, Maharashtra)

Jagdish C Dighe

R/at 701 Sameer Tower Behind

Dr. Bedekar Hospital Ram

Maruti Road, Thane,

Maharashtra State.                                                                                            ……….Petitioner

                                                                            

Versus

The Ajara Urbanco-op Bank Ltd.

Summer Castel Mill Compound

Lal Bahadur Shastri Marg,

Thane

Maharashtra State                                                                                            .........Respondent

REVISION PETITION NO. 3507 OF 2011

(Against the order dated 31.3.2011in First Appeal Nos.A/10/817, A/10/818 & A/10/819 of the State Commission, Maharashtra)

Kum Parija

d/o Jagdish Chimanrao Dighe

A-1 203 Kargil Vijay Barampur

Stella Vasai Road (W) Mumbai

Mumbai

Maharashtra State

                                                                                                                     ……….Petitioner

                                                                            

Versus

The Ajara Urbanco-op Bank Ltd.

Summer Castel Mill Compound

Lal Bahadur Shastri Marg,

Thane

Maharashtra State                                                                                           .........Respondent

REVISION PETITION NO. 3508 OF 2011

(Against the order dated 31.3.2011in First Appeal Nos.A/10/817, A/10/818 & A/10/819 of the State Commission, Maharashtra)

Smt. Mrudula Jagdish Chimanrao Dighe

R/at 701 Sameer Tower  Behind                                            

Dr. Bedekar Hospital Ram

Maruti Road, Thane,

Maharashtra State                                                                                           ……….Petitioner

                                                                            

Versus

The Ajara Urbanco-op Bank Ltd.

Summer Castel Mill Compound

Lal Bahadur Shastri Marg,

Thane

Maharashtra State                                                                                         .........Respondent

BEFORE

HON’BLE MR. JUSTICE V.B. GUPTA,

                                    PRESIDING MEMBER

HON’BLE MR. VINAY KUMAR, MEMBER

For the Petitioners       :   Mr. Sudhanshu S. Choudhari, Advocate

PRONOUNCED ON:   17.04.2012    

ORDER

PER MR.VINAY KUMAR, MEMBER

These are a set of three revision petitions filed by three individuals against the Ajara Urban Cooperative Bank Ltd, Thane, Maharashtra. The matter emanates from three separate but identical complaints before the District Consumer Forum Thane.  In all three cases, the complaints were allowed and therefore, the OP/Bank went in appeal before the Maharashtra State Consumer Disputes Redressal Commission.  The latter has disposed of the three appeals through a common order of 31.3.2011.  

2.      All three revision petitions have been filed with delay of 39 days which, considering the explanation of the petitioners, has been condoned and the matter taken up for consideration on merits.  For facility of reference, facts as in RP No.3506 of 2011 are referred to in this order.

3.      The case of the complainants before the District Forum was that he had subscribed to a pension scheme of the OP/Bank called the “Pension Aawart Thev Yojana”, under which deposit of Rs.3000/- per month had to be made for a total of 63 months.  The maturity value of this investment i.e. Rs.2,78,670/- was to be paid to the nominee of the subscriber after his death.  The subscriber was also to get a monthly pension of Rs.3,252/- from the date of maturity till his death. Allegedly, after completion of the period of 63 months on 30.6.2005, no pension was paid by the respondent/Bank and hence, a consumer complaint was filed on 29.6.2007.  The District Forum came to a conclusion that non-payment of the pension assured under the scheme was not justified.  The OP/Bank did not have the right to refuse to pay the this amount at maturity.  The contention of the OP/Bank was that the scheme had been discontinued and therefore they could either pay the maturity value or interest at the prevailing rate.  But, pension as contemplated under the scheme was not payable due to discontinuation of the scheme itself.

4.      The District Forum allowed the complaint and made the following award:-

“1)    The opponent-Bank shall pay to the complainant the pension of Rs.3252/- (Rupees three thousand two hundred fifty two only) Per month with 14% interest thise on from 1-7-2005 till his death.

2)      The maturity and due amount of Rs.2,78,760/- (Rupees Two Lacs Seventy Eight Thousand Seven Hundred Sixty Only) be refunded and interest at 7 P.L.P.A. be paid thise on.

3)      The opponent shall pay to the complainant Rs.5,000/- (Rupees Five Thousand only) as costs of the application and shall pay Rs.10,000/- (Rupees Ten Thousand Only) as damages and mental annoyance.  The opponent shall pay all the amounts directly to the complainant within 30 days after the receipt of the certified copy of this order.  If the said amount is not paid within prescribed time, the opponent shall pay Penal interest at the rate of 02% P.L.P.A. till its realization.  The opponent is legally liable to pay said the amount.”

5.      Considering the appeal filed by the Ajara Urban Cooperative Bank, the State Commission noted that in the application form itself, for making deposit under the scheme, the Complainants had agreed to abide by the rules, which may be changed by the Bank from time to time.  This undertaking was given at the time of opening the account on 21.3.2000.  Thereafter, as per the resolution passed on 27.7.2002 by the Board of Directors of the Bank, the depositors were informed that the “Pension Awart Thev Yojana” was being discontinued.  They were given the option to either to take back their deposit with accumulated interest on maturity or receive monthly payment by way of pension as per the applicable rate of interest, from time to time.  The Complainant did not exercise their option and insisted on payment of pension of Rs.3253/- per month as contemplated under the original scheme.  

6.      The State Commission in the impugned order has partially allowed the appeal and modified the order of the District Forum by setting aside the direction to pay monthly pension of Rs.3252/- and confirmed the remaining directions. The State Commission held that in view of discontinuation of the scheme while pension was not payable the Complainants remained entitled to receive the deposited amount together with interest. 

7.      We have heard Shri S. S. Choudhari for revision petitioner/Complainant and perused the record of the case.  The case of the revision petitioner/Complainant is that the scheme had come out in the year 2000 and therefore, the question of its modification on the basis of earlier notifications of the Reserve Bank of India should not arise.  It is also argued that the respondent/Bank did not have any authority to withdraw /modify the scheme unilaterally after having accepted the requisite contribution from the petitioner.

8.      These arguments are fully met in the impugned order when the State Commission makes the following observations:-

“Referring to the application of opening the deposit accounts in the above referred scheme, it could be seen that the complainants agree to abide by the rules which may be changed by the bank from time to time covering those deposits. Such undertaking is given on 21/03/2000 while opening the deposit accounts. Thereafter as per the resolution passed in its Board of Directors per Resolution no.54 dated 27/07/2002, the bank informed the depositors including the complainants that said scheme of “Pension Aawart Thev Yojana” was to be discontinued and it was further decided to give an option to the depositor either to take back the deposit along with accumulated interest on their maturity or to receive monthly payment by way of pension as per then applicable rate of interest on the accumulated deposit amount.  The interest applicable would the rate of interest as may be applicable from time to time.  It is stated that the complainants did not exercise their option but as per the reliefs claimed, they were insisting for payment of pension amount @’3252/- per month.”     

9.      From the above observations of the State Commission, it is clear that the modification was in terms the Board Resolution of 27.7.2002, which was two years after the commencement of the scheme. Secondly, permissibility of such modification was covered under the undertaking of 21.3.2000 given by the petitioner/Complainant.  Therefore, the question of unilateral modification of the scheme to the disadvantage of the investors will not arise.  Secondly, the petitioner had the option to receive the maturity amount of Rs.2,78,760/- but had not exercised that option. 

10.    The impugned order has modified the award of the District Forum only to the extent of deletion of the direction to pay the monthly pension of Rs.3252/-.  This has been explained in the impugned order. As the scheme of deposit itself had been discontinued, the question of monthly pension would not arise.  The other directions of the District Forum to pay the maturity value of Rs.278760/- together with 7% interest, Rs.10,000/- towards compensation and Rs.5,000/- towards costs, have remain unchanged in the impugned order. 

11.    In our view the impugned order is based on correct appreciation of the material on record and does not call for any interference by this Commission.   Consequently, the revision petitions are dismissed for want of merit.  There are no orders as to costs.                         

.…………………………

(V.B.GUPTA,J.)

PRESIDING MEMBER

………………………….

(VINAY KUMAR)

                                                                                                                                            MEMBER

s./-