CIVIL JUDGE WRITTEN EXAM DATED: 19^TH FEBRUARY 2017

CONDUCTED BY HIGH COURT OF JUDICATURE: HYDERABAD.

            Time: 03 hours                                                                            Max. Marks 80

Part-A consits of Eight questions and Part-B consists of Eight questions. Answer Five questions from Part-A and Five questions from Part-B, question no.8 in part A & B is compulsory.

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PART-A

1.(a) What are the provisions of CPC not extended to Provincial small cause courts? (4M)

(b) Explain the following: (i) Precepts (ii) Constructive Resjudicata (4 Marks)

2(a)Whether there are any special provisions for recovery of possession of premises owned by members of armed forces, employees of State and Central government and widows under the A.P.Building (Lease, Rent, and Eviction) Control Act, Explain?

(b) What is an increase in the fair rent, fixed under S.4 of A.P.Building (Lease, Rent, and Eviction) Control Act, permissible as per the provisions of the Act? (4 Marks)

3(a) Define Transfer of Property? What Property may be transferred and what are the exceptions? b) How can payments be appropriated in the following cases

(i) Where debt to be discharge is indicated?

(ii) Where debt to be discharged is not indicated?

(iii) Where neither party appropriates?

4 (a) What is meant attested? Explain the procedure to prove compulsorily attestable documents under the Indian Evidence Act and the Indian Succession Act?  (4 marks)

(b) Define “Onerous Gift”. Explain the circumstances when a gift can be revoked?

5(a) When can an injunction be refused under Specific relief Act 1963? (4 Marks)

(b) What is meant by “anti-suit” injunction and when can such injunction be granted or refused? (4 Marks)

6(a)Define Easement, Easement by necessity and Quasi Easements? (4 Marks)

(b) How is an easement by Prescription acquired? (4 marks)

(c) What Rights cannot be acquired by Prescription? (2 marks)

7 (a) What are the properties exempted from the application of the Hindu Succession Act, 1956? (4 marks)

(b) Explain the mode of execution of the following decree with to the relevant provisions of CPC 1908? (4 Marks)

1. i) Specific Performance
2. ii) Permanent Injunction

iii) Restitution of Conjugal rights

8. A the owner of vacant Land (property), settled the same in favour of B Municipal corporation by executing a registered settlement deed with absolute rights but directed B to use the property for establishing Urdu girls High School and run the same, if B fails to use the property as directed by A. A is entitled to recover possession of the same.

As B failed to establish and run Urdu girls High School in the property settled a filed suit against B for recovery of possession of the property in view of the specific condition in settlement deed.

B filed written statement contending that a school is being run in the property though not Urdu girls High School and the property is being used for official purposes only. It was further contended that A is not entitled to recover possession as the transfer is with the absolute right, and the direction to use the property is invalid.

Both parties adduced evidence in support to their specific pleas

Is A entiled to recover possession of property in view of violation of the direction in the settlement deed?

Write Judgment with reasons  (8 Marks)

PART-B

1. Define Domestic relationship and Domestic Violence with reference to specific provisions of the Protection of Women from Domestic Violence,2005 (8 Marks)

2 (a) Explain briefly the special provisions as to evidence relating to electronic records, and the procedure to be followed to admit such electronic records in evidence under the provisions of the Indian Evidence Act 1872 (4 Marks)

(b) What includes secondary evidence and when secondary evidence relating to documents may be permitted under the provisions of the Indian Evidence Act,1872 (4 Marks)

3. Explain the procedure to be followed by the Magistrate as per the Criminal rules of Practise and Circular orders

a) To record dying declaration of injured

b) To conduct test identification parade of suspect

c) To conduct Identification of property (8 Marks)

4. Write a short note on the following:

a) Abetement b) Criminal Conspiracy c) Grievous Hurt d) Affray      (8 Marks)

5. Write a note on Charges, contents of Charge and the effect of errors or omissions which have occasioned in framing a charge? (8 Marks)

6. Explain the procedure to be followed in summary trials with reference to the provisions of Cr.P.C,1973 (8 Marks)

7. Explain briefly the general exceptions enumerated under the IPC? (8 Marks)

8. A borrowed an amount of Rs.10,00,000/- (Ten Lacs only) for the business purpose from B and executed a promissory note in faovur of B on 13/7/16 agreeing to repay the same together with interest @1`2% per annum either B or to his order as and when demanded.

Inspite of demands made by B, A didn’t discharge the debt due to B but issued a blank signed Cheque dated:12/12/2016 for Rs.2,00,000/- (Two Lacs only). B after filling the blanks in the cheque presented for collection with collecting bank. Before the presentation of a cheque for collection A addressed a letter to his banker to Stop payment. In view of direction, the baker dishonored the cheque with return memo on the ground of instructions to stop payment. Within one-month after receipt of the cheque return memo dishonoring the cheque, B issued notice demanding A to make payment of amounts covered by the cheque to the address of A by registered post but the notice was returned with endorsement ‘not claimed’. Thereupon B filed a complaint with in time for the offense punishable under S.138 N.I Act.

A raised the following defenses:

a)Issue of blank signed cheques is not valid

1. b) It was not issued to discharge any part or whole of the legally enforceable debt
2. c) Dishnour of cheque on account of Stop payment instructions would not amount to an offense punishable under S.138 N.I Act.
3. d) No notice as required under S.138 of Act was served, while admitting the address on the registered cover to be the correct address, he, however, contained that the complaint liable to be dismissed.

During trial B examined himself as PW1, the scribe of Promissory note and the manager of the payee bank were examined as PW2 & PW3 respectively. B marked the pronote, the cheque dishonour memo, the office copy of the legal notice and returned registered demand notice as exhibits P1 to P6. He proved the execution of pro-note, issue of the cheque, dishonour of cheque with return memo, demand by registered notice and failure to pay the amount covered by the cheque.

After completion of complainant’s evidence, A was examine dunderS.313 Cr.P.C he reported no evidence

Is A liable for punishment for the offense punishable under S.138 N.I Act?

Write Judgment with reasons (8 Marks).

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PALSAR

JR.CIVIL JUDGE (SCREENING EXAM)

COURSE  DETAILS

MODEL ANSWERS TO JR. CIVIL JUDGE WRITTEN EXAM DT: 19/02/2017

CONDUCTED BY HIGH COURT OF JUDICATURE: HYDERABAD.

Time: 03 hours                                                                            Max. Marks 80

Part-A consits of Eight questions and Part-B consists of Eight questions. Answer Five questions from Part-A and Five questions from Part-B, question no.8 in part A & B is compulsory.

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PART-A

1.(a) What are the provisions of CPC not extended to Provincial small cause courts? (4M)

Ans: S.7 CPC says the following provisions shall not extend to Courts constituted under the Provincial Small Cause Courts or to Courts exercising the jurisdiction of a Court of Small Causes that is to say:-   (a) so much of the body of the Code as relates to-

(i) suits excepted from the cognizance of a Court of Small Causes;

(ii) the execution of decrees in such suits;

(iii) the execution of decrees against immovable property; and

(b) the following sections, that is to say,- S.9, S.91, 92, S.94, 95 so far as they authorize or relate to- (i) orders for the attachment of immovable property; (ii) injunctions, (iii) the appointment of a receiver of immovable property, or (iv) the interlocutory orders referred to in clause (e) of section 94 and sections 96 to 112 and 115.

Order 50 of C.P.C. excludes, certain provisions of the schedule appended from the purview of Small Causes Court. They are : (a) so much of this Schedule as relates to—

(i) suits excepted from the cognizance of a court of small causes or the execution of decrees in such suits;

(ii) the execution of decrees against immovable property or the interest of a partner in partnership property;

(iii) the settlement of issues; and

(b) the following rules and Orders:—

Order II, rule 1 (frame of suit); Order X, rule 3 (record of examination of parties);

Order XV, except so much of rule 4 as provides for the pronouncement at once of
judgment; Order XVIII, rules 5 to 12 (evidence); Order XLI to XLV (appeals); Order XLVII, rules 2,3,5,6, 7(review);

1. (b) Explain the following: (i) Precepts (ii) Constructive Resjudicata (4 Marks)
2. i) Precept: As per S.46 CPC, Precept is an order issued by Court which passed the decree to another Court upon the application of the decree-holder to the Court to attach any property belonging to the judgment-debtor and specified in the precept. It continues to be in force for two months unless DHR applies for the sale of such property.

(ii) Constructive Resjudicata: It is dealt under  Explanation IV of S.11 CPC. According to it any matter which might and ought to have been made ground of defense or attack in a former suit if not raised they are are deemed to have been raised and refused by the Court. Thus, the principle is applicable to either plaintiff or defendant.

2(a)Whether there are any special provisions for recovery of possession of premises owned by members of armed forces, employees of State and Central government and widows under the A.P.Building (Lease, Rent, and Eviction) Control Act, Explain?

Ans: Right to recovery of immediate possession of tenanted premises: S.s 10(a), 10(b) and 10(c) are the newly inserted provisions into this Act, by Act 17/2005. As per these provisions if the land lord is a retired person from armed force or retired employee of State or Central Government who is a landlord and the members of his family or a widow of the landlord, can seek for recovery of immediate possession of the premises under the occupation of the tenant.

(b) What is an increase in the fair rent, fixed under S.4 of A.P.Building (Lease, Rent, and Eviction) Control Act, permissible as per the provisions of the Act? (4 Marks)

Ans: Fair Rent:  The landlord and tenant can fix the rent to be paid to be paid for every month subject to S.32 of Rent Control Act. However if for any reason either the landlord or tenant feels that sum arrived is not correct any of them can make an application before the rent controller to fix the fair rent. In such, Rent controller or authorised officer is guided by the per principles laid down under S.4 of the Rent Control Act. The principles for fixing fair rent are as follows:

1) The rent controller shall verify the prevailing rents in the locality for the same or similar accommodation during the twelve months prior to 5th April 1944.

2)  The rental value has entered in the property taxes assessment book of the concerned local authority during the 12 months prior to 5th April 1944.

3)  If the rate of rent or rental value exceeds Rs.50 per month an increase can be done but not exceeding 37 ½% on such rent whereas in the case of the non-residential increase shall not exceed 75% of rental value.

3(a) Define Transfer of Property? What Property may be transferred and what are the exceptions?

Ans: Transfer of Property means an act by which a living person conveys property, in present or in future, to one or more other living persons, or to himself, or to himself and one or more other living persons; and to transfer property is to perform such act. The term living person‖ includes a company or association or body of individuals, whether incorporated or not, but nothing herein contained shall affect any law for the time being in force relating to the transfer of property to or by companies, associations or bodies of individuals.

S.6 says that property of any kind may be transferred either at present or in the future. But there are some exceptions to this rule. All these are listed in S.6. These properties are also exempted from attachment by Court. They are:

1. The chance of an heir-apparent succeeding to an estate or a chance of a relation obtaining legacy on the death of kinsman or a chance of an interest of like nature cannot be transferred.
2. A mere right of re-entry for a breach of condition subsequent cannot be transferred except to the owner of the property.
3. All interest in property restricted in its enjoyment to the owner personally cannot be transferred by him.
4. An easement cannot be transferred apart from the dominant heritage.
5. A right to future maintenance in whatever way of arising,secured or determined cannot be transferred. 6. A mere right to sue cannot be transferred.
6. Public officers and salaries of a public officer cannot be transferred.
7. Stipends of military, naval, Airway or civil pensioners of Government and political pensions cannot be transferred.
8. If the transfer is against S.23 of Contract Act or opposed to nature or transfer to a person legally disqualified by law.
9. If the tenant has untransferable right of occupancy, he cannot transfer his right or assign interest over the property. A lessee of an estate in the occupancy management of Courts of wards Act cannot transfer. Furthermore, a tenant who has failed to pay revenue can‘t transfer his interest in the occupancy.

1. b) How can payments be appropriated in the following cases

(i) Where debt to be discharge is indicated?

(ii) Where debt to be discharged is not indicated?

(iii) Where neither party appropriates?

Ans: Appropriation of debts (Several debts): S.58 says if a person owes several distinct debts to same person, the money paid shall be applicable as per direction of the debtor. If not indicated, they apply as per order in time including time barred debts. If neither party indicated, court would apply in order of time it can also be applied to such debt even though it is barred by limitation. If the debts are of equal standing, the payment shall be applied in discharge of each proportionally.

4 (a) What is meant attested? Explain the procedure to prove compulsorily attestable documents under the Indian Evidence Act and the Indian Succession Act?  (4 marks)

Ans: Attestation: It is defined under S.3 of Transfer of Property Act, The essentials of attestation are:

1) There shall be two or more persons certifying that the document is executed by the one whose signature is appearing at the execution portion. Further, it suggests that executant has executed the document with free consent and there was no force, fraud or undue influence. However, it doesn‘t mean they have knowledge about the contents of that document or they gave consent to the transfer of the document.

2) They must have Animus attested i.e., intention to attest the document.

3) The attestor should witness the execution or if he had not witnessed the actual execution, by merely receiving a personal acknowledgment from the executant of having executed the

document and putting his signature.

If the executant is unable to sign the deed himself, he may direct some other person to do so. In such circumstance, the attesting witness authenticates and ensures that the another person has signed the deed strictly under the direction of the executant. Thus, attestation cannot take place before executant signature. Gift, WILL, Mortgage of value Rs100/- and above shall be attested.

Proof of Attested document: The law relating to proving the contents of the Attessted document is dealt under S.68 of Indian Evidence Act, 1872. In order to prove an attested document one of the attestors shall be examined as a witness. It is an absolute rule if the document sought to be proved is a Will. If the attested document is a registered one and there is no denial about its execution attestor need not be examined. Ex: Registered mortgage deed. If the attestors are not available despite best of efforts, the parties can resort to other modes to prove the document and it must be noted that it is only an exception which can be resorted to meet exceptional situations.  They are dealt under S.69 to 71. Thus the aid of S.69 to 71 can be taken only upon exhausting the rule laid down u/s.68. S.69 says if the attesting witness is not available, the attestation of one attesting witness can be proved by other evidence in his hand writing. S.71 says If the attesting witness denies or doesn‘t recollect the execution of the document; its execution may be proved by other evidence. S.70: If a party to an attested document admitted the execution of the document.

(b) Define “Onerous Gift”. Explain the circumstances when a gift can be revoked?

Ans: Onerous Gift: S.127: It means a person who receives the  advantage must also suffer the burden or loss. According to S.127, if in a single transfer by way of gift several properties are transferred to one person, of which some or any one of them are burdened with obligation, the donee shall accept the gift fully or reject the transfer, otherwise he gets nothing from such transfer.

Circumstances when a gift can be revoked: As per S.126 of Transfer of Property Act, Gift once made is final. It means donor can‘t revoke the transfer made. However, if the gift is made subject to a condition, transfer of gift completes upon the fulfillment of such condition. But, this condition shall not depend upon the will of the donor. If parties agree that Gift will be revoked at the mere will of the donor, it is void. Nothing contained in this section shall be deemed to affect the rights of transferees for consideration without notice.

5(a) When can an injunction be refused under Specific relief Act 1963? (4 Marks)

Ans: It is dealt under S.41 of the Specific Relief Act, The following are the instances:

(a) To restrain any person from prosecuting a judicial proceeding pending at the institution of the suit in which the injunction is sought, unless such restrain is necessary to prevent a multiplicity of proceedings;

(b) To restrain any person from instituting or prosecuting any proceeding in a Court not subordinate to that from which the injunction is sought;

(c) To restrain any person from applying to any legislative body.

(d) To restrain any person from instituting or prosecuting any proceeding in a criminal matter;

(e) To prevent the breach of a contract the performance of which would not be specifically enforced;

(f) To prevent, on the ground of nuisance, an act of which it is not reasonably clear that it will be a nuisance;

(g) To prevent a continuing breach in which the plaintiff has acquiesced;

(h) When equally efficacious relief can certainly be obtained by any other usual mode of proceeding except in case of breach of trust;

(i) When the conduct of the plaintiff or his agents has been such as to disentitle him to the assistance of the Court;

(j) When the plaintiff has no personal interest in the matter.

(b) What is meant by “anti-suit” injunction and when can such injunction be granted or refused? (4 Marks)

Ans:  The principles for granting anti suit injunction were laid down in Modi Entertainment Network and Anr v WSG Cricket Pvt Ltd: AIR 2003 SC1177.  They are:

(1) (a) the defendant, against whom injunction is sought, is amenable to the personal jurisdiction of the court;

(b) if the injunction is declined the ends of justice will be defeated and injustice will be perpetuated; and

(c) the principle of comity – respect for the court in which the commencement or continuance of action/proceeding is sought to be restrained – must be borne in mind;

(2) in a case where more forums than one are available, the Court in exercise of its discretion to grant anti-suit injunction will examine as to which is the appropriate forum (forum conveniens) having regard to the convenience of the parties and may grant anti-suit injunction in regard to proceedings which are oppressive or vexatious or in a forum non-conveniens;

(3) Where jurisdiction of a court is invoked on the basis of jurisdiction clause in a contract, the recitals therein in regard to exclusive or non-exclusive jurisdiction of the court of choice of the parties are not determinative but are relevant factors and when a question arises as to the nature of jurisdiction agreed to between the parties the court has to decide the same on a true interpretation of the contract on the facts and in the circumstances of each case;

(4) the burden of establishing that the forum of choice is a forum non-conveniens or the proceedings therein are oppressive or vexatious would be on the party so contending to aver and prove the same.

6(a)Define Easement, Easement by necessity and Quasi Easements? (4 Marks)

Ans: Easement: An easement is a right, which the owner or occupier of a certain land possesses as such for the benfecial enjoyment of that land, to do and continue to do something or to prevent and continue to prevent something being done, in or upon or in respect of certain other land not of his own (S.4). Essence of easment is that it should be a right over property belonging not to the owner but to some one else.  The person for whose benefit right is granted is known as dominant owner and his land is known as dominant heritage. The person over whose land liability of easement is imposed is called as servient owner and the owner of such land is known as servient heritage.

Quasi-easement: A quasi easement arises when both tracts of  land are owned by a single person. A quasi easement can be converted into a true easement if the landowner sells one of the tracts of his/her land. This easement can also mean an obligation relating to land which is not a true easement such as a landowner‘s obligation to maintain the fence between the landowner‘s tract and another person‘s tract. To illustrate, Where Blackacre and

Whiteacre both belong to A, the common owner, and during his ownership an accommodation or privilege is enjoyed by Blackacre over Whiteacre, and A subsequently parts with Blackacre to B but retains Whiteacre, there passes to B in certain cases a right to the above accommodation. This accommodation as it existed during the common ownership cannot in the strict sense be described as an ‘easement’ but is usually described as a “quasi–easement”. Blackacre is sometimes described as the quasi-dominant tenement, and Whiteacre as the quasi-servient tenement.

(b) How is an easement by Prescription acquired? (4 marks)

Ans: Easement by way of prescription: One can claim this right subject to following conditions: A owner of immovable property who has peacefully and openly enjoyed the right of way or other rights in the land of another as a matter of right continuously and uninterruptedly for a period of twenty years (over government property, it is 30 years) is entitled to Easement by way of prescription.

(c) What Rights cannot be acquired by Prescription? (2 marks)

Ans: Easementary right by way of prescription can’t be acquired in the following cases:

1. a) If the enjoyment of easement would result destruction of right or property in which easement if claimed.
2. b) If the right is for free passage of light or air through an open space or ground.
3. c) Water not flowing in a stream and not permanently collected in pool or tank or otherwise.
4. d) Similarly, one cannot claim right under this category if the water is underground not flowing in defined channel.

7 (a) What are the properties exempted from the application of the Hindu Succession Act, 1956? (4 marks)

Ans: This is explained under S.5 of the Succession Act. It says this Act shall not apply to—

(i) any property succession to which is regulated by the Indian Succession Act, 1925, by reason of the provisions contained in section 21 of the Special Marriage Act, 1954;

(ii) any estate which descends to a single heir by the terms of any covenant or agreement entered into by the Ruler of any Indian State with the Government of India or by the terms of any enactment passed before the commencement of this Act;

(iii) the Valiamma Thampuran Kovilagam Estate and the Palace Fund administered by the Palace Administration Board by reason of the powers conferred by Proclamation (IX of 1124) dated 29th June, 1949, promulgated by the Maharaja of Cochin. State amendment

(a) Kerala State has passed an Act for the partition of the valiamma Thampuran Kovilegam Estate and the Palace Fund: Kerala Act 16 of 1961, sec. 10. “10. Amendment of the Hindu Succession Act, 1956.—Clause (iii) of section 5 of the Hindu Succession Act, 1956 (Central Act 30 of 1956), shall be omitted with effect on and from the date of execution of the partition deed under section 6.”

(b) Explain the mode of execution of the following decree with to the relevant provisions of CPC 1908? (4 Marks)

1. i) Specific Performance
2. ii) Permanent Injunction

iii) Restitution of Conjugal rights

1. i) Specific Performance: A decree for specific performance of agreement of sale is executed by obtaining from the decree holder a draft of the document prepared in terms of the decree. The draft is then served on the J.D. inviting his objection. After objection, if any, are dealt with and the draft is approved, the J.D. having failed to execute the same, the Court would execute the document on stamp paper provided by the D.H. If the document requires registration, the Court would cause it to be registered by sending it to the Sub-Registry either with an officer of the Court or a Commissioner appointed for this purpose .

1. ii) Permanent Injunction: In case of willful breach of the decree for Permanent Injunction, the Court can enforce such a decree by detention of the J.D. in a civil prison or by the attachment of the property of J.D. or by both the modes.

iii) Restitution of Conjugal rights: The decree for restitution of conjugal rights can be enforced by the attachment of the property of the judgment debtor. If such attachment remains in force for six months and the judgment debtor has not obeyed the decree, the court may on the application of the decree holder sold the attached property and out of sale proceeds pay such compensation as it thinks fit to the judgment debtor.

8. A the owner of vacant Land (property), settled the same in favour of B Municipal corporation by executing a registered settlement deed with absolute rights but directed B to use the property for establishing Urdu girls High School and run the same, if B fails to use the property as directed by A. A is entitled to recover possession of the same.

As B failed to establish and run Urdu girls High School in the property settled a filed suit against B for recovery of possession of the property in view of the specific condition in settlement deed.

B filed written statement contending that a school is being run in the property though not Urdu girls High School and the property is being used for official purposes only. It was further contended that A is not entitled to recover possession as the transfer is with the absolute right, and the direction to use the property is invalid.

Both parties adduced evidence in support to their specific pleas

Is A entiled to recover possession of property in view of violation of the direction in the settlement deed?

Write Judgment with reasons  (8 Marks)

Ans: Given at the end of the Paper.

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PART-B

1. Define Domestic relationship and Domestic Violence with reference to specific provisions of the Protection of Women from Domestic Violence,2005 (8 Marks)

Ans: S.2(f) Domestic relationship: means a relationship between two persons who is live or have, at any point of time, lived together in a shared household, when they are related by consanguinity, marriage, or through a relationship in the nature of marriage, adoption or are family members living together as a joint family.

Domestic violence: As per S.3 (g) of the Act, the term “domestic violence”.

Definition of domestic violence.-For the purposes of this Act, any act, omission or commission or conduct of the respondent shall constitute domestic violence in case it –

(a) Harms or injures or endangers the health, safety, life, limb or well-being, whether mental or physical, of the aggrieved person or tends to do so and includes causing physical abuse, sexual abuse, verbal and emotional abuse and economic abuse; or

(b) harasses, harms, injures or endangers the aggrieved person with a view to coerce her or any other person related to her to meet any unlawful demand for any dowry or other property or valuable security; or

(c) has the effect of threatening the aggrieved person or any person related to her by any conduct mentioned in clause (a) or clause (b); or

(d) Otherwise injures or causes harm, whether physical or mental, to the aggrieved person.

2 (a) Explain briefly the special provisions as to evidence relating to electronic records, and the procedure to be followed to admit such electronic records in evidence under the provisions of the Indian Evidence Act 1872 (4 Marks)

Ans: The important provisions regarding electronic records are contained in sections 22-A, 45-A, 59, 65-A and 65-B of the Evidence Act. Section 65-B is very important section. It provides admissibility of electronics records. When a statement had to be produced in evidence under this section, it should be accompanied by a certificate which should identify the electronic record containing the statement and describe the manner in which it was produced, give the particulars of the and only if prosecution can establish through reliable evidence that this is personal computer of accused without access to others. This could be corroborated with the evidence of scientific officer of Forensic Department who will tell whether it was containing picture. It is to be noted that it is not necessary that every witness would tell that computer was in regular service and was operated by the accused. The service provider will give the evidence with log in and log out details that a particular pornography picture was sent to a particular domain address through the I.P. address of the accused. It is to be noted that every computer has a distinct I.P. address. Similarly, the domain of his like G-mail, yahoo-mail etc. will give the details about the transaction in their server with system generated report. That both the reports can be compliance of section 65-B(2) of Evidence Act.

(b) What includes secondary evidence and when secondary evidence relating to documents may be permitted under the provisions of the Evidence Act,1872 (4 Marks)

Secondary evidence (S.63): a) Certified copies.

1. b) Copies made from the original by mechanical process and

copies compared with such copies.

1. c) Copies made from or compared with original.
2. d) Counter parts of the documents as against the parties who did

not execute them. e) Oral accounts of the contents of documents by a person who has seen it.

Producing secondary evidence in the absence of primary:

Ans: The law relating to this subject is dealt under S.64 to 65 of IEA. The general rule is that document must be proved by primary evidence only and if the case of the party falls in any of the given situation, secondary evidence can be given:

1. If a party wishes to produce secondary evidence, an attempt must be made to produce original by serving a notice on the person in whose possession the document is. If upon, such notice, if the party failed to produce the same, secondary evidence can be given.
2. If the existence of original is admitted in writing
3. If the original had been destroyed or loss or cannot be produced
4. If the original is not moveable,
5. If the original is a public document, 6. If the original consists of numerous accounts.

3. Explain the procedure to be followed by the Magistrate as per the Criminal rules of Practise and Circular orders
4. a) To record dying declaration of injured
5. b) To conduct test identification parade of suspect
6. c) To conduct Identification of property (8 Marks)

1. a) Mode of recording Dying declaration is spelled out under R.33 of Criminal rules of practice. 1. D.D may be oral or written. It can be recorded by any person including a police officer depending upon the urgency. If time permits, it is always desirable to get the services of the Magistrate to record D.D as it has its own value. If it is in the hospital the certificate of the medical officer about the mental condition of the deponent is necessary.
2. D.D must be of a person who is competent to testify as a witness, if alive.
3. There is no particular method of recording a D.D. It is desirable to record it in a question and answer and the answers be written in the words of the person making the declaration. It must be complete.
4. The statement must be read over and the signature or thumb impression has to be obtained. The time of recording shall be noted.
5. The Court is obliged to rule out the possibility of the statement being the result of tutoring, prompting or vindictive or a product of the imagination.

1. b) Mode of conducting Identification Parade: It is spelled out under 34 of A.P.Criminal rules of Practice.
2. Identification parade is conducted in the presence of judicial Magistrate and the police have to leave the scene to ensure the free and fair conducting of Identification Parade,
3. Suspected person will be placed among the other persons, who have same physical characters of the accused as far as possible,
4. Then the Magistrate calls the witness to identify the accused person, to whom he had seen while committing the offense,
5. If the eye witness identifies the accused and picks up the person to whom he had seen while committing the offense, the Magistrate records to that effect and he completes the proceedings. Later, witness will be called by Court at the time of trial to identify the accused person.
6. As per S.54A, if the person identifying the arrested person is mentally or physically disabled, such process of identification shall take place under the supervision of a Judicial Magistrate. He shall take appropriate steps to ensure that such person identifies the person arrested using methods that the person is comfortable with. This whole identification process may be video graphed.

1. c) To conduct Identification of property: It is delat under Rule.35 of Criminal rules of Practise. (1) Identification parades of properties shall be held in the Court the Magistrate where the properties are lodges;

(2) Each item of property shall be put up separately for the parade. It shall be mixed up with four or similar objects.

(3) Before calling upon the witnesses to identify the property, he shall be asked to state the identification marks of his property. Witnesses shall be called in one after the other and on leving shall not allowed to communicate with the witness not yet called.

4. Write a short note on the following:
5. a) Abetement b) Criminal Conspiracy c) Grievous Hurt d) Affray      (8 Marks)
6. a) Abetement: It is dealt under S.107 to 120 IPC. 107 says a person is said to abet another to do a thing if he instigates him, or if he engages with one or more others in any conspiracy or if he intentionally aids by any act or illegal omission, the doing of that thing.  Thus offence of abetment can be committed by instigation, conspiracy or intentional aid.

The abetment of abetment is also an offence. It is further to note that doing anything in order to facilitating the commission prior or at the time of commission of the act is said to be abetment.

1. b) Criminal Conspiracy (S.120-B)An agreement between two or more persons to commit an offence is the gist of the offence of conspiracy.

E.g. An agreement to commit murder. It is an independent offence by itself. Sanction of competent authorities is necessary to proceed against the conspirators who merely agreed to commit a crime provided offence is punishable with two years imprisonment.

1. c) Grievous Hurt (S.320): The following kinds of hurt only are designated as grievous.

First- Emasculation

Secondly-Permanent privation of the sight of the either eye

Thirdly- Permanent privation of the hearing of either ear

Fourthly- Privation of any member or joint, or

Fifthly- Destruction or permanent impairing of the powers, of any member or joint

Sixthly- Permanent disfiguration of the head or face

Seventhly- Fracture or dislocation of a bone or tooth

Eighthly-Any hurt which endangers life or which causes the sufferer to be during the space of 20 days in severe bodily pain, or unable to follow his ordinary pursuits.

1. d) Affray S.150 IPC: Two more persons fighting in a public place disturbing public peace and tranquility. An affray can’t be committed in a private place and doesn’t require five or more persons. An affray is committed suddenly and not premeditated.

5. Write a note on Charges, contents of Charge and the effect of errors or omissions which have occasioned in framing a charge? (8 Marks)

Ans: The term Charge is defined as: Charge includes more heads than one. The charge shall be framed as per S.211 Cr.P.C & 212.

The charge shall contain following particulars:

1. It must state the offence with which accused is charged.
2. Name of the offence committed in IPC or in any other Act.
3. Name of the offence or definition in case, no name to it.
4. Section of law, with which he was charged.
5. It shall be in written in the language of the Court.
6. Details of previous conviction, if any, if the accused is liable to

enhanced punishment, of a different kind, for a subsequent offence

7. Time and place of the alleged offence and the person against

whom the alleged offence is committed. In the case of a thing in

respect of thing alleged offence is committed (s.212 (1)).

8. In criminal breach of trust, dishonest misappropriation details of

the gross sum.

S.464 says that omission to frame a charge or irregularity in framing the charge or misjoinder of charges does not vitiates trial unless it occasioned failure of justice.

6. Explain the procedure to be followed in summary trials with reference to the provisions of Cr.P.C,1973 (8 Marks)

Ans: Summary Procedure: This is dealt under S.260 to 264 Cr.P.C. Basically, in all summary trials, the summons procedure is followed. It means examinaiton of the accused under S.251 Cr.P.C upon his apperance and thereupon examining prosecution witness and followed by S.313 Cr.P.C examination and defense evidence. Finally, upon conclusion of arguments, Judgment will be issued. But in no case Magistrate can’t inflict punishment for a period more than three months upon finding the accused guilty of offence. Generally, in every summary trial record following particulars must be mentioned, namely:-

(a) the serial number of the case;

(b) the date of the commission of the offence;

(c) the date of the report or complaint;

(d) the name of the complainant (if any);

(e) the name, parentage and residence of the accused;

(f) the offence complained of and the offence (if any) proved, and in cases coming under clause (ii), clause (iii) or clause (iv) of sub-section (1) of section 260, the value of the property in respect of which the offence has been committed;

(g) the plea of the accused and his examination (if any);

(h) the finding; (i) the sentence or other final order;

(j) the date on which proceedings terminated.

Another feature of this trial is that accused need not come to Court, he can plead guilty through post or pleader or by person upon receipt of summons and pay fine as mentioned in the summons.  During the trial of case, if the Magistrate is opinion that it undesirable to try the case under summary procedure, he can convert it into any other manner as provided by code.

7. Explain briefly the general exceptions enumerated under the IPC? (8 Marks)

Ans: Section 76 to 106 of the IPC deals with general exceptions.

These exceptions are categorized in the following ways: 1) Mistake of fact 2) Judicial Acts 3) Accident 4) Necessity 5) Infancy 7) Unsoundness of Mind 8) Consent.

1. Mistake of fact: Mistake means erroneous belief about a particular fact, which constitutes an offence. Law excuses even if one commits an offence due to the mistake of fact believing that he is justified or bound by law. It is dealt under two sections. S.79 covers mistake of fact believing that he is justified by law and whereas S.76 covers mistake of fact believing that he is bound by law.
2. Judicial Acts (S.78): Offence committed by a judge when acting judicially in the exercise of any power which he is, or which in good faith he believes to be given to him by law is excused. This benefit applies to persons who act under the Court judgment or order.
3. Accident or misfortune (S.80): If any person without any criminal intention or knowledge in the doing of a lawful act in a lawful manner by lawful means and with proper care and caution resulted in an offence either due to accident or misfortune, he is exempted from criminal liability.

Example: A is at work with a hatchet, the flies off and kills a man who is standing by. Here, if there was no want of proper caution on the part of A his act is not an offence.

4. Necessity: If an offence is caused knowingly in good faith but without any criminal intention for the purpose of preventing or avoiding other harm to person or property.

Example: A, in a great fire, pulls down houses in order to prevent the conflagration from spreading. He does this with the intention in good faith of saving human life or property. Thus harm is excused as it was found to be greater danger and it was imminent as to

excuse A‘s act. Necessity is a question of fact.

5. Infancy: It provides an exemption to children from criminal liability. It is of two kinds. If a child below seven years commits an offence he will be fully exempted from criminal liability. However, if the child is above seven years and below twelve years, he is exempted to liability subject to one condition i.e., he does not have attained sufficient maturity of understanding to judge of the nature and consequences of his conduct on that occasion.
6. Unsoundness of mind: S.84 IPC talks about it. If an offence is committed by a person who, at the time of doing it, by reason of unsoundness of mind, is incapable of knowing the nature of the act, or that he is doing what is either wrong or contrary to law, he is exempted from criminal liability. This situation may arise due to a variety of reasons. They are Insanity, mania, hallucination, lunatic, Idiot, person with mental sickness. The rules relating to unsoundness of mind are explained in R v.M.C. Naughten case: 1) Every person is supposed to be sound mind. Thus, everyone possesses the capability of distinguishing right and wrong. 2) It must be established by the accused that at the time of the commission of occurrence of offence he was the person of unsound mind. 3) Unsoundness of mind is always a question of

fact. 4) It is for the judge to decide whether a person is unsound at the time commission of the offence.

8. A borrowed an amount of Rs.10,00,000/- (Ten Lacs only) for the business purpose from B and executed a promissory note in faovur of B on 13/7/16 agreeing to repay the same together with interest @1`2% per annum either B or to his order as and when demanded.

Inspite of demands made by B, A didn’t discharge the debt due to B but issued a blank signed Cheque dated:12/12/2016 for Rs.2,00,000/- (Two Lacs only). B after filling the blanks in the cheque presented for collection with collecting bank. Before the presentation of a cheque for collection A addressed a letter to his banker to Stop payment. In view of direction, the baker dishonored the cheque with return memo on the ground of instructions to stop payment. Within one-month after receipt of the cheque return memo dishonoring the cheque, B issued notice demanding A to make payment of amounts covered by the cheque to the address of A by registered post but the notice was returned with endorsement ‘not claimed’. Thereupon B filed a complaint with in time for the offense punishable under S.138 N.I Act.

A raised the following defenses:

a)Issue of blank signed cheques is not valid

1. b) It was not issued to discharge any part or whole of the legally enforceable debt
2. c) Dishnour of cheque on account of Stop payment instructions would not amount to an offense punishable under S.138 N.I Act.
3. d) No notice as required under S.138 of Act was served, while admitting the address on the registered cover to be the correct address, he, however, contained that the complaint liable to be dismissed.

During trial B examined himself as PW1, the scribe of Promissory note and the manager of the payee bank were examined as PW2 & PW3 respectively. B marked the pronote, the cheque dishonour memo, the office copy of the legal notice and returned registered demand notice as exhibits P1 to P6. He proved the execution of pro-note, issue of the cheque, dishonour of cheque with return memo, demand by registered notice and failure to pay the amount covered by the cheque.

After completion of complainant’s evidence, A was examine dunderS.313 Cr.P.C he reported no evidence

Is A liable for punishment for the offense punishable under S.138 N.I Act?

Write Judgment with reasons (8 Marks).

Ans: Given at the end of the Paper.

***************************************************************************

PALSAR

JR.CIVIL JUDGE (SCREENING EXAM)

COURSE  DETAILS

IN THE COURT OF THE JUDICIAL FIRST CLASS MAGISTRATE:

AT: ABCD

Sunday, the 19^th day of February, 2017

PRESENT: G. ANEEL KHIRRAN KUMAR

CALENDAR CASE NO. 7 OF 2016

Between:

B, S/o. ………….., Age: 50 years,

R/o. …………………, ………….., Hyd.                                                ….Complainant

And

A, S/o. ………….., Age: 55 years,

R/o. …………………, ………….., Hyd.                                             …..Accused

In adjudicating this case this court is assisted by Sri Y. Narsi Reddy, learned counsel for the Complainant and of Sri Ch. Venugopala Chary, learned counsel for the accused.

: JUDGMENT :

The brief facts complainant proposes to prove are hereunder: On 12.02.2016, accused in the discharge of his legally enforceable debt issued a cheque for an amount of Rs.20,00,000/- (Rupees Twenty Lakhs only) drawn on the bank in favour of the complainant.  However, the said cheque is dishonoured by the accused bank on the ground of instructions to stop payment. Though procedure prescribed under the law complied with accused failed to pay the above amount, hence, present case praying the court to punish the accused for an offense punishable u/s.138 of Negotiable Instruments Act.

2. The court upon taking cognizance for an offence punishable u/s138 of Negotiable Instruments Act, furnished copies of documents. On examination of accused u/s.251 Cr.P.C, by explaining the accusation for the offence punishable u/s 138 of Negotiable Instruments Act, accused pleaded not guilty and claimed to be tried.  As such, complainant to prove the guilt examined PW-1 & PW-2 and marked ExP1 to ExP6.  On the side of defense, no witness is examined and nothing is marked.  Soon after the closure of complainant’s evidence, accused is examined u/s.313 Cr.P.C. with reference to incriminating material on record.  He denied the same and reported no defense.

3. Heard, both sides.

4. Now the point for determination is whether the complainant proves the guilt of accused u/s.138 of Negotiable Instruments Act beyond all reasonable doubt? If so, the punishment accused is liable for under section 138 of Negotiable Instruments Act?

POINT:5.PW1 testifies that he presented the complaint as per the procedure prescribed by law to invoke jurisdiction under S.138 N.I Act. But accused raises two grounds that would preclude this court to decide claim under the provisions of the S.138. N.I Act. First, non-receipt of notice. Second, stop instructions doesn’t amount to dishonour on the ground of insufficient funds.

6. It has been held by the Hon’ble Supreme Court through catena of decisions that dishonor of the cheque with return memo on the ground of instructions to stop payment will also fall under the ambit dishonour of cheque on the ground of insufficient funds. Hence, I see no legality in this contention and accordingly rejected.

7. The other contention is that accused didn’t receive legal notice. But, he didn’t dispute the correctness of the address named over the cover of the legal notice and the truthfulness of return of registered legal notice. In fact, it is also marked as Exhbit. Moreover, failure of service to the addressee on the ground of ‘unclaimed’ compelling me to presume that it might have reached the accussed in usually business course but he refused to receive the same. Since refusal of receipt of notice is also deemed notice, I see no legality in the contention of the accused to throw away the complaint case under S.138 N.I Jurisdiction. Accordingly, the point is answered against him.

8. Needless to state that the accused admits issuance of blank signed cheque to PW1. But, he contends that an unfilled blank signed the cheque is not a valid cheque. As per S.20 of the N.I Act and other provisions of the law there is no legal bar that cheque shouldn’t be filled by any person other than a drawer. But, point to be verified is whether the payee has a right to  receive the amount covered by the unfilled or inchoate instrument. Hence, the contention that unfilled cheque is not valid cheque is not a tenable contention and accordingly rejected.

9. The evidence on record indisputably establishes that cheque under question is executed by the accused alone. As such, in view of presumption of law under S.118 and S.139 N.I this court is constrained to presume that contents of the cheque were duly filled and it is issued in discharge of a legally enforceable debt. This is the propistion laid down by Apex Court in Rangappa vs Sri Mohan AIR 2010 SC 1898.The burden to rebut this presumption with cogent evidence is on the accused. But, there is nothing on record except bare allegations and on the other hand there is due proof of Pro-note executed by accussed. Hence, this court left with no alternative except to conclude that this cheque is issued in discharge of legally enforceable debt. The point is answered accordingly in favour of the complainant and against the accused.

10. In the result accused is found guilty for an offence punishable u/s.138 of Negotiable Instruments Act as such he is convicted of the same U/s. 255(1) Cr.P.C.

Judicial First Class Magistrate, Mulug.

ORDER ON THE POINT OF SENTENCE: Dated:19.02.2017

Heard, the accused on the question of the sentence by apprising him about the punishment prescribed under Law.  Accused pleaded for mercy. Learned counsel for the accused submitted this is the first offence. Having regard to the facts and circumstances of the case and I see no reason to take a lenient view.  Hence, accused is sentenced to pay fine of Rupees Twenty lakhs and imprisonment for a period of six months under Section 138 Act would meet the ends of the justice.

In the result, accused is found guilty of the offence punishable under Section 138 Act as such under Section 252 Cr.P.C he is convicted of the same. He is sentenced to pay a fine of Rupess twenty lakhs for the offence punishable under Section 138 N.I Act.

Judicial First Class Magistrate, ABCD

APPENDIX OF EVIDENCE

Witnesses Examined

For Complainant:                                                                                For Defence: 

PW.1:  Raj Kumar                                                                                   – N I L –

EXHIBITS MARKED

For Prosecution :                                                                                 For Defence:

Ex.P1: Original Cheque, dated 11.02.2016                                             – N I L –

Ex.P2: Pro-note

Ex.P3: Original Return Memo

Ex.P4: Office copy of legal notice

Ex.P5: Postal Receipt

Ex.P6: Returned Postal Cover

         MATERIAL OBJECTS MARKED

– NIL –                             Judicial First Class Magistrate, ABCD

IN THE COURT OF THE JUNIOR CIVIL JUDGE: AT: ABCD

Sunday, the 19^th day of February, 2017

PRESENT: G. ANEEL KHIRRAN KUMAR

ORIGINAL SUIT NO. 7 OF 2016

Between:

B, S/o. ………….., Age: 50 years,

R/o. …………………, ………….., Hyd.                                                ….Plaintiff

And

A, S/o. ………….., Age: 55 years,

R/o. …………………, ………….., Hyd.                                             …..Defendant

: JUDGMENT :

This is a suit for recover possession of property in view of the violation of the direction in the settlement deed filed by the plaintiff against the defendant.

1. Admitted facts: A the owner of vacant Land (property), settled the same in favour of B Municipal corporation. This was done by way of registered settlement deed with absolute rights but with a condition that B to use the property for establishing Urdu girls High School and run the same. It is further agreed that any violation of this condition entitled A to recover possession of the same.

2. That upon perusal of pleading the following issues are settled for trial:

1)Whether the direction covered under the settlement is valid?

2)If so, the plaintiff is entitled to recovery of the possession?

3)To what relief?

3. Needless to state that settlement is also a kind of gift given to dependants or charity or for purposes as specified under S. S.2(24) of Stamp Act. Though both differ in certain aspects as specified under S.2(24) of Stamp Act, it is maintained primarily for the purpose of the quantum of stamp duty to be collected. This proposition can be seen from Marius Louis Peria vs Santo Rane Charles: (1988) 1 MLJ 360; Venkatasubbiah v. Subbamma A.I.R. 1956 A.P. 195; Mattegunta Dhanalakshmi vs Kantam Raju Saradamba And Ors:AIR 1977 AP 348.

4. In view of the above, settlement deed as like gift deed can be subject to conditions specified under provisions of law including S.126 of Transfer of Property Act. Hence, any condition under the settlement if they are not in contravention any of the following conditions is valid. They are: (1) that the donor and the donee must have agreed that the gift shall be suspended or revoked on the happening of a specified event, (2) such event must be one which does not depend on the will of the donor, (3) that the donor and the donee must have agreed to the condition at the time of accepting the gift and (4) that the condition should not be illegal or immoral and should not be repugnant to the estate created under the gift.

5. In the present case, the corporation is under an obligation to run the Urdu school as demanded by settlement deed and their failure would authorize donor to revoke the settlement. It is a contingency provided in the agreement and agreed to between both the parties even at the time of the acceptance of the settlement deed. Thus, the facts of the present case squarely fall within the above propositions of law. Hence, direction covered under the deed is valid and accordingly the plaintiff is entitled to recovery of possession of the property for violation of condition. Issue no.1 & 2 are answered in favour of plaintiff & against the defendant. The point answered accordingly.

6. That the suit is decreed in favour of the plaintiff and against the defendant directing him to deliver the possession of the property to plaintiff. The defendant is directed to bear the costs.

Junior Civil Judge, ABCD.

APPENDIX OF EVIDENCE

Witnesses Examined

For Plainitff:                                                                           For Defendant: 

PW.1:                                                                                          – N I L –

EXHIBITS MARKED

For Prosecution :                                                                                 For Defence:

Ex.A1: Settelment deed                                                                          – N I L –

Junior Civil Judge, ABCD.

Disclaimer: The above key prepared by PALSAR doesn’t guarantee any correctness with the key proposed to be finalized by the High Court of Judicature: Hyderabad. Hence, PALSAR claims no responsibility for any mistake or error creeps in the above key and aspirants are advised to consult relevant Bare Act or Code in the case of any discrepancy or doubt or key proposed to be issued by High Court. All the best.

Dated: 08:00PM on 22/2/17, Hyd.                                                                                PALSAR Team.

PALSAR

JR.CIVIL JUDGE (SCREENING EXAM)

COURSE  DETAILS