Criminal Procedure Code, 1973, Section 326(3) -- Summary/summons trial - Case registered as summary case - But regular recording of oral evidence of PWs was done - Learned judge was transferred and new presiding officer took charge - Magistrate failed to consider that case was not being tried as summary case, but was being tried as a regular case - Impugned order directing..........
Negotiable Instruments Act, 1881, Section 138, 142 -- Dishonour of cheque - Notice - Plea that there was no proper service of notice - However, failure to make payment within 15 days of receipt of summons from Court along with copy of complaint - Accused cannot contend that there was no proper service of notice...........
Criminal Procedure Code, 1973, Section 190 -- Cognizance of offence on charge sheet - Application of mind by Magistrate - No set pattern for taking cognizance - Magistrate while taking cognizance is to apply his mind regarding prima facie case being made out unlike the clear cut observation that is to be taken in the proceedings u/s 111 Cr.P.C. - Impugned order typed order..........
Negotiable Instruments Act, 1881, Section 138 -- Dishonour of cheque - Proceedings u/s 138 of the Act - Summary in nature being triable as summons case - But that does not absolve complainant from leading evidence to prove its case prima facie...........
Civil Procedure Code, 1908, Order 7, Rule 11(d) -- Rejection of plaint - Arbitration clause in agreement - Not an absolute bar to the maintainability of suit - However, if defendant upon being served with the summons of the suit, apply u/s 8 of the Arbitration Act, would be question of non maintainability of the suit and referring the party to arbitration would arise...........
Civil Procedure Code, 1908, Order 9, Rule 13, Civil Procedure Code, 1908, Order 5, Rule 20 -- Ex parte decree - Setting aside - Service of summons through publication - Defendant denied service of summons or knowledge of suit - On denial, presumption regarding service of summons stood rebutted - Burden shifted upon plaintiff to prove that summons were served upon defendant..........
Civil Procedure Code, 1908, Order 9, Rule 13, Limitation Act, 1963, Article 123 -- Ex parte decree - Setting aside - Limitation - Summons not duly served upon defendants - Limitation of 30 days as prescribed u/art 123 of Limitation Act, would run from the date of knowledge of decree - Since date of knowledge of decree is 4.1.2014 and application is filed on 16.1.2014, as..........
Criminal Procedure Code, 1973, Section 193 -- Committal of case to Court of Session - Sessions Judge entitled to issue summons u/s 193 Cr.P.C. as a Court of original jurisdiction, notwithstanding fact that Magistrate had taken cognizance and only thereafter committed case to Court of Session, as Magistrate plays passive role in committing case to Court of Session on..........
Civil Procedure Code, 1908, Order 9, Rule 13 -- Ex parte decree - Setting aside - Non-service of summons - Order refusing to grant opportunity to lead evidence by defendant in support of said application - Report of refusal made by Postman is not absolute and it is rebuttable - Evidence can be led by defendant to show that report was falsely made and infact he did not..........
Civil Procedure Code, 1908, Order 9, Rule 13, Hindu Marriage Act, 1955, Section 13 -- Ex parte divorce decree - Setting aside - Application filed by wife after 13 years of passing of decree - Wife contended that she never received summons from Court nor she engaged counsel - However, wife never denied her signatures on the power of attorney filed by counsel - It is only..........
