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Law of Insurance

Set off (Order VIII, Rule 6)

Definition:

Where in a suit by the plaintiff for recovery of money and the defendant finds that he also has a claim of some amount against the plaintiff what he does is he can claim a set-off in respect of the said amount. This right of the defendant to claim set-off has been recognized under Order 8, Rule 6 of the Code.

Essential Conditions:

  1. A defendant may claim a set-off, if:
  2. The suit is for the Recovery of money;
  3. The sum of money must be ascertained;
  4. Such sum must be legally recoverable;
  5. It must be recoverable by the defendant or by all the defendants, if not more than one;
  6. It must be recoverable by the defendant from the plaintiff(s);
  7. It must not exceed the pecuniary jurisdiction of the court in which the suit is brought;
  8. Both the parties must fill in the defendant’s claim to set-off, off the same character as they fill in the plaintiff’s

Effects:

When a defendant claims set-off, he is put in the position of the plaintiff as regards the amount claimed by him. Where the plaintiff doesn’t appear and his suit is dismissed or he withdraws, it does not affect the claim for set-off by the defendant and a decree may be passed in his favor if he is able to prove his claim.

Types of Set-Off

Set-off is of two kinds viz., legal set-off and equitable set-off. Rule 6 speaks of legal set-off only. In contrast to legal set-off, an equitable set-off can be claimed for unascertained money but it must arise from the same transaction. For example, where a servant sues his master.

for recovery of the amount of salary, the master can claim set-off for loss sustained by him due to negligence of servant since it arises out of the same relationship.

Legal Set-Off

It is apparent from a reading of the above provisions that in order to constitute legal set-off, the following conditions must be fulfilled, viz.,

  1. The suit must be for the recovery of money.
  2. The defendant must claim an ascertained sum of money. A sum of money due in respect of a disputed transaction cannot constitute an ascertained sum.
  3. That ascertained sum must be legally recoverable from the plaintiff, i.e., it is not barred by the law of limitation.
  4. The plaintiff’s claim and the set-off must be claimed in the same character. The amount must be recoverable by the defendant and if there is more than one defendant, then by all the defendants. Again, the amount must be recoverable by the defendant from the plaintiff and if there is more than one plaintiff, then from all the plaintiffs.
  5. The set-off should be within the pecuniary jurisdiction of the Court.

Equitable set-off

The Court of Equity in England allowed set-off when cross-demands arose out of the same transaction, even if the money claimed by way of set-off was an unascertained sum of money. The Common Law Courts refused to take notice of equitable claims for they were not ascertained sums. The Courts of Equity, however, held that it would be inequitable to drive the defendant to a separate cross-suit and that he might be allowed to plead a set-off though the amount might be unascertained. Such a set-off is called an equitable set-off.

In India, the distinction between legal and equitable set-off remains. The provisions as to legal set-off are contained in Order VIII, Rule 6, C.P.C. The same has now been enlarged by insertion of Rule 6-A with regard to counter-claim by the defendant. So far as equitable set-off is concerned it is provided in Order XX, Rule 19(3), C.P.C., which states that:

The provisions of this rule (relating to a decree for set-off or counter-claim and an appeal therefrom) shall apply whether the set-off is admissible under Rule 6 of Order VIII or otherwise.

Prosecution – Cognizance – Registration of cases

Prosecution 

The word prosecution in Art.20 (2) of Constitution of India means judicial proceedings before a court or a legal tribunal.  It cannot have reference to departmental or disciplinary proceedings taken for inflicting departmental penalty or punishment on an officer belonging to the department for any misconduct. 

Prosecution means the institution and carrying on of the legal proceedings against a person.  A crime is a wrong not only against the individual victim but also against the State. Hence the State take responsibility of prosecuting the accused person in cases of serious offenses.  The Government appoints prosecutors for conducting prosecution and other criminal proceedings on their behalf in the courts.  The public prosecutor does not represent the police but the Stte.it pimps every prosecution for an offense whether it is initiated on a private complaint or  police report.

Cognizance

‘Cognizance’’ in general meaning is said to be ‘knowledge’ or ‘notice’, and taking ‘cognizance of offenses’ means taking notice, or becoming aware of the alleged commission of an offense. 

The Code of Criminal Procedure has not specified what cognizance is. Literally, it means ‘to be aware of’ but when used in respect to a trial or a magistrate it means ‘Judicial notice of an offense’ Actually, taking cognizance does not require any formal action by the judge or magistrate, because as long as a magistrate turns his mind to the alleged crime of an offense for the purpose of taking further actions under the Code of Criminal Procedure, such as summoning an accused on the basis of the information available for prosecution or trial, cognizance can be said to have been taken.

Any First class Magistrate and any Second Class Magistrate can acknowledge any offense. Section 190-199 of the code defines the procedures by which various criminal courts are entitled to take cognizance of offenses, and the restrictions under which they are entitled.

Registration of cases

The code of criminal procedure defines the term ‘complaint’ as any allegation made orally or in writing to a Magistrate. It’s done with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offense, but does not include a police report.

When the Magistrate issued the process against the accused, he cannot take it back. The Code of Criminal Procedure does not provide the power of review so the Magistrate could not review its process or cancel the summon or warrant.

A magistrate on receiving the complaint may not take cognizance of the offene complained of He may or may  not take cognizance of the offense complained of.  He may look into the complaint and send it to the police for investigation under Sec. 156(3) of CR.P.C.

A Magistrate with whom a complaint is filed, shall examine the complainant and also witnesses on oath. The contents in the compliant shall also examined and reduced in writing in a report. The report shall have signature of complainant, witnesses and also the Magistrate. Provided that, when the complaint made in writing, the Magistrate need not examine the complainant and the witnesses:

  • if a public servant acting or purporting to act in the discharge of his official duties or a Court has made the complaint; or
  • if the Magistrate makes over the case for inquiry or trial to another Magistrate under section 192:

Provided further that if the Magistrate transfers the case to another Magistrate under section 192 after examining the complainant and the witnesses, the latter Magistrate need not re-examine them.

Registration of cases

The code of criminal procedure defines the term ‘complaint’ as any allegation made orally or in writing to a Magistrate. It’s done with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offense, but does not include a police report.

When the Magistrate issued the process against the accused, he cannot take it back. The Code of Criminal Procedure does not provide the power of review so the Magistrate could not review its process or cancel the summon or warrant.

A magistrate on receiving the complaint may not take cognizance of the offene complained of He may or may  not take cognizance of the offense complained of.  He may look into the complaint and send it to the police for investigation under Sec. 156(3) of CR.P.C.

A Magistrate with whom a complaint is filed, shall examine the complainant and also witnesses on oath. The contents in the compliant shall also examined and reduced in writing in a report. The report shall have signature of complainant, witnesses and also the Magistrate. Provided that, when the complaint made in writing, the Magistrate need not examine the complainant and the witnesses:

  • if a public servant acting or purporting to act in the discharge of his official duties or a Court has made the complaint; or
  • if the Magistrate makes over the case for inquiry or trial to another Magistrate under section 192:

Provided further that if the Magistrate transfers the case to another Magistrate under section 192 after examining the complainant and the witnesses, the latter Magistrate need not re-examine them.

WHITE COLLAR CRIMES

ECONOMIC OFFENSES (WHITE COLLAR CRIMES)

The concept of white-collar crime found its place in criminology for the first time in 1941 when Sutherland first published his research paper on white-collar criminality in the American sociological review. He defined white-collar crime as a crime committed by persons of high social status in the course of their occupation. e.g. -misrepresentation through fraudulent advertisement, infringement of patents, copyrights, and trade-marks, a publication of fabricated balance sheets and profit and loss account of business,etc. 

“White-collar crimes are committed by persons of status, not for need but for greed” sir Walter reckless 

White Collar Crimes are committed by people who are involved in otherwise lawful businesses and cover a wide range of activities. The perpetrators hold respectable positions in the communities unless their crime is discovered. The laws relating to white-collar crimes depend upon the exact nature of the crime committed.

Types of White Collar Crimes.

Extortion:

When a person illegally obtains someone’s property by actual or threatened force.

Insider-Trading:

When someone uses the confidential information to trade in shares of publicly held corporations.

Money-Laundering:

it means the concealment of origin of illegally obtained money.

Tax fraud:

It means evading tax by providing wrong information in tax forms or illegally transferring property in order to avoid tax etc.,

WRONG AGAINST SOCIETY AND INDIVIDUAL

The term wrong means an act causing injury or damage to the other. a wrong against society proclaimed by law and, if committed under certain circumstances punishable by society

Crime is defined in Halsbury’s Laws of England as “an unlawful act or default which is an offense against the public and renders the person guilty of the act or default liable to legal punishment.

Unlawful assembly, rioting public nuisance, bribery trespass offense relating to kidnapping etc., all the above wrongs are punishable under Indian Penal Code and Code of Criminal Procedure Code.

OFFENSE

What is an offense?

An offense is a crime that breaks a particular rule/law and requires a particular punishment.

An offense is a transgression of the law, by action or omission. That means there may be some cases where the law requires you to abstain or refrain from performing a particular act. There may also be cases where the law requires you to take a positive action, failing which you may be held liable for the offense

Civil offenses are against private persons (individuals like you and me) but criminal offenses are against the State. The State, represented by the Prosecutor, will argue the case against the defendant. So now, the prosecutor will make the case against the suspect, by submitting the issue sheet (pleadings) and the necessary evidence.

What is the difference between crime and offense?

Every society has a system of written rules and regulations to deal with people who deviate from normal, accepted behavior. People who violate these rules are treated as criminals and punished according to the enactment.

Offense:  any act that violates civil or criminal law. This violation of such a nature brings harm to the society and makes the culprit liable to serve a sentence in prison with a possible financial penalty.

Sec. 2(n) of Cr.P.C Act defines the word “  Offense “ to mean any act or omission made punishable by any law for the time being in force and sec.40 of the I.P.C which states that ‘offense denotes a thing made punishable by the code.

CLASSIFICATION OF OFFENCES

An offence is an illegal act or crime punishable in the eyes of law, The Code of Criminal Procedure Code, 1973 has recognised offences under three categories:-

  • Cognizable & Non-Cognizable offence
  • Bailable & Non-Bailable offence
  • Compoundable & Non-Compoundable offence
  1. COGNIZABLE AND NON- COGNIZABLE OFFENCE

COGNIZABLE OFFENCE

A cognizable offence is an offence where the police officer in accordance to the first schedule or under some other law can convict an accused without a warrant, usually, these offences are of heinous nature like murder, rake, kidnap, theft, dowery death…etc. In such offences the accused must be produced before the court in the stipulated time.

It is essential to file a First Information Report (FIR), under section 154 Cr.P.C, it mandatory for a police officer to note the commission of a cognizable offence in writing, which gives him the opportunity to collect evidence. In-State of Haryana v/s Bhajan Lal, the supreme court held that the FIR must contain a piece of information disclosing the commission of the cognizable offence.

It is the duty of the police officer to lodge an FIR and investigate the same, The courts have no power under section 482 Cr.P.C to interfere with the investigation by the Police or staying of arrest in cognizable cases.

EXAMPLES OF COGNIZABLE OFFENCE

  • Hiring or engaging persons to take part in an unlawful assembly or taking part in itself
  • Negligently or deliberately engaging into an act which is likely to spread infection of any dangerous disease
  • Counterfeiting Indian coin, selling false weights or measures for fraudulent use
  •  Rioting armed with dangerous weapons

BAIL OF COGNIZABLE OFFENCE

  • After investigation, if the charge sheets turn out to be against the accused then the magistrate can order an arrest.
  • During the Trial, bail application can be filed against the concerned magistrate, In appropriate cases, interim bail can be granted pending disposal of the final bail application, since arrest or detention can cause harm to a person’s reputation causing irreparable loss
  • Cognizable offences are both bailie and non- bailable.

NON- COGNIZABLE OFFENCE

Non- cognizable offences are those where a police officer cannot arrest the accused without the warrant, as listed under the first schedule of Indian penal code. These are usually not as serious as cognizable offence such as  forgery, cheating, defamation,..etc

In such offences, FIR is lodged to the magistrate after which the concerned police officer initiates the investigation. A charge sheet is further filed by the police officer which is followed by the trial and final order of arrest if the case has been made out. Any investigation without the requisite permission or order by the magistrate would be one without the jurisdiction[5]. Under section 155 of CrPC, if two or more offences are committed and one of them is cognizable then the officer will not be debarred from the further investigation as well as arrest can take place. 

EXAMPLES OF NON- COGNIZABLE OFFENCE

  • A public servant disobeying law with intent to cause harm to any person.
  • Bribing during elections
  • The false claim in a court of justice
  • Buying a slave
  • Misappropriation of movable property

BAIL OF NON-COGNIZABLE OFFENCE

  •  If the case is fit for trial,  accused is put forward the magistrate and if the case turns out against him then arrested.
  • In Hamid v/s Rashid alias, in case of addition of serious non-cognizable offence is required to surrender and apply for bail for newly added offences to save him from arrest.
  • The non-cognizable offence is bailable

2. BAILABLE OFFENCE AND NON- BAILABLE OFFENCE

BAILABLE OFFENCE

A Bailable offence is a one where bail is an absolute and indefeasible right, it could be granted by the police officer in whose custody he is or concerned magistrate. Such offences are being a member of an unlawful assembly, giving false evidence in a judiciary, causing a disturbance in an assembly..etc. In Rasiklal v/s Kishor, it was held that under section 436 of the code a bailable offence is entitled to be released on bail pending his trial. The offender is released on the basis of a “Bail Bond”.

BAIL UNDER BAILABLE OFFENCE

Bail can be granted on the basis of “Bail Bond” which contains the following conditions :-

  • Not to leave the territorial jurisdiction without the permission of the court.
  • Shall be present before the police whenever required to do so.
  • Not to tamper with the evidence. 

In Public prosecutor v/s Raghuramaiah, it was held under section 496 of the code, it is envisaged to realize the accused person on bail, further, the bond or sureties will be decided by the court itself. The court may refuse to grant bail to a bailable offence if the offender does not comply with the bail bond.

NON BAILABLE OFFENCE

A Non- bailable offence is the one where bail is not the matter of right, bail can only be granted in discretion of the court, such offences usually include murder, rape..etc. In State of Maharastra v/s Ramesh Taurani, it was held that along with other considerations, nature and gravity of the offence are essential to decide whether bail seal be granted to a Non- Bailable offence. Here,“ Bail Bond “ is used to grant bail along with more stringent conditions than of bailable offence. In state v/s Caption Jagjit Singh, it was held that a non – bailable offence cannot be granted bail if convicted for life imprisonment or the death sentence.

If the accused has been arrested for two offences the. He must get a bail bond for both the offences and satisfy conditions under them; At any point, if at any point the conditions of a bail bond are fulfilled then the bail will be forfeited.  In such conditions any Appel can be made against a forfeited order, Appel shall lie against the same judge and court where the order of forfeiture was passed.

BAIL UNDER NON- BAILABLE OFFENCE

  • The application of bail is granted before the magistrate conducting the trial.
  • Under section 497 of CrPC, it well settled that a judge has the discretion to grant or refuse bail to a person accused of a non – bailable offence.
  • He may be refused of bail if attempted to abscond or is doubtful of his credentials. 
  • Accused may apply for anticipatory bail to either high court or session court in order to get direction under section 438 of CrPC if he thinks he might get arrested. Anticipatory bill id different from that of normal bail, it is issued before an arrest takes place and becomes operative after the arrest has taken place.

Anticipatory Bail

It is applicable on bailable and nonbailable offences, the power given under anticipatory bail is privileged to a person who is under the apprehension of arrest thus when abused it can be taken back under section 439 of CrPC. In K. Gajendra Baidu v/s State of A.P, it was held that granting bail is necessary as at times influential persons implicate their rivals into false cases.

3. COMPOUNDABLE OFFENCE AND NON- COMPOUNDABLE OFFENCE

COMPOUNDABLE OFFENCE

The compoundable offence is where the complainant can drop his charges and enter into a compromise, the compromise must be Bonafide and not something to which he is not entitled, the court grants permission when convinced that the offence is entirely personal in nature and therefore does not affect public tranquility and compromise would bring peace as well as the secure end of justice, in such cases pursuing prosecution would be waste of time and energy.

Section 320 of CrPC splits up compoundable offences into two:-

  • Taking permission of the court is not necessary- such as criminal trespass, causing her, defamation…etc
  • Taking permission of the court is necessary:-  There are offences where the complainant has to take the permission of the court to drop the charges, the permission is usually required for offences grievous in nature and a bad example for the society such as voluntarily hurting someone with dangerous weapons, intentional alteration or destruction of valuable property during delivery…etc
  • Application for such offences shall be made before the same court where the trial is proceeding, once the charges are drop, the case is treated as the accused has been acquitted of the charges. 

NON- COMPOUNDABLE OFFENCE

A Non- compoundable offences cannot be compounded, can only be quashed as they are generally of heinous and criminal nature, thus the accused cannot be allowed to go Scot-free. All offences not mentioned in section 320 of Cr.P.C fall under Non- compoundable offenses. The complaint is generally filled by: the state” like police..etc hence the question to drop charges does not arrive, even the court does not have the power to compound such offences , the trial ends with acquittal or conviction of the offence, with the final order, the criminal trial ends. 

REMAND & CUSTODY

REMAND

 The word remand generally means to return or to send back but, in the legal world, it has two different meanings.

  1. It means to send the accused back in the custody of the competent authority and
  2. It means to send back the cases from the appellate court to the lower court.

Remand is the act of sending a prisoner back into custody, specially in order that further evidence on the charge may be obtained.  Remand means to send a prisoner back to police custody, after preliminary or partial hearing before a court or magistrate, to be kept until the hearing is resumed or the trial comes on.Sec. 309 contemplates a remand to judicial lockup and not police custody.

The power of a court to remand an accused to custody is governed by a number of provisions of the Cr.P.C, these being Sections of these 167(2), 209(b) and 309(2). Each provisions is independent of each other and come into play at different stages of the criminal trial. The remand under Section 167(2) relates to the stage of investigation and is ordered for furthering the investigation and can be either in judicial custody or police custody. The remand under S.209(b) relates to the stage when the magistrate commits the case, he can remand the accused to the custody during and until the conclusion of the trial subject to the provisions of bail under the code and finally remand under S.309(2) relates to a stage after cognizance and can only be sent to judicial custody.

 CUSTODY

Custody relates to the possession or control of the certificates as physical objects. Custody means judicial or penal safe keeping. As per Sec. 167 of Cr. P.C,if the investigation into an offence is not completed within 24 hours and the accused is in custody, the concerned police officers shall forward the accused to the nearest Judicial Magistrate. If the accusations made are well-founded, the accused shall not be released on bail unless his/her detention is authorized by a magistrate from time to time. In the case of a woman under 18 years of age, the detention shall be in a remand home or a recognized social institution

CUSTODY

Custody relates to the possession or control of the certificates as physical objects. Custody means judicial or penal safe keeping.As per Sec. 167 of Cr.P.C if the investigation into an offence is not completed within 24 hours and the accused is in custody, the concerned police officers shall forward the accused to the nearest Judicial Magistrate. If the accusations made are well-founded, the accused shall not be released on bail unless his/her detention is authorized by a magistrate from time to time. In the case of a woman under 18 years of age, the detention shall be in a remand home or a recognized social institution.

TYPES OF CUSTODY

Police custody

Police custody means that the physical custody of the accused is with the Police, the accused is lodged in a lock-up of a police station. After an FIR is lodged for a cognizable offense (provides punishment for more than three years), the accused is arrested by the police to prevent the tampering of evidence or influencing the witnesses. 

Under Sec. 57 of Cr. P.C , the police officer cannot keep the accused for more than 24 hours, irrespective of whether the investigation is complete or not. The accused is produced before the concerned Magistrate within 24 hours of the arrest, the police seek his remand to police custody in order to complete the investigation expeditiously, the police decides for how long the accused must be kept in custody, which cannot exceed a period of 15 days.

Judicial Custody

Judicial custody is there in case of serious offenses, where the Court may accede on the request of the police to remand the accused in judicial custody after the police custody period expires, that is to prevent the tampering of evidence or witnesses.

It is mandatory in criminal cases to file a chargesheet within 90 days. If there is failure in the filing of a charge-sheet within 90 days, the bail is normally granted to the accused. But, in case if heinous offenses, like rape or murder, the accused is generally kept in a judicial custody (that is kept in jail under the custody of the court) for a longer duration despite the filing of a chargesheet, in order to not influence the process of trial.

The judicial custody may be for a period of 60 days for all other crimes, if the Court finds it convincing that sufficient reason exists, following which the suspect or accused may be released on bail.

Decree

As per sec 2(2) of the Code of Civil Procedure, a “decree” is a formal adjudication’s expression that conclusively recognizes the parties’ rights with regard to all or some of the issues in the matter and may be either preliminary or final.

A decree must contain the following:

  1. Rejection of a plaint.
  2. Any dispute arising under Section 144 of the Code.

A decree must contain a formal statement of adjudication: A decree must contain a formal expression of adjudication. In other words, the court must declare its decision officially in the way prescribed by law.

Different Types of DecreesAccording to the Civil Procedure Code, there are three distinct sorts of decrees. They are as follows:

Preliminary Decree:
It is issued in cases where the court must first assess the parties’ rights and additional actions are required before the suit may be totally dismissed.

Final Decree:
A final decree is issued when a lawsuit is totally resolved and all issues in dispute between the parties have been resolved.
A decree may be conclusive in one of these ways:

  1. If no appeal is lodged within the specified time period against the decree,
  2. Where the subject has been determined by the highest court by decree.
  3. Where the decree terminated the matter totally.

Partially preliminary and partially final decree:
A decree is considered to be partially preliminary or partially final if it just establishes the parties’ rights and leaves the remainder of the issues to be resolved in subsequent processes.

SOLATIUM

Meaning of Solatium

Solatium means  A thing given to someone has compensation. It means a thing given to someone as compensation for consolation. It is being given to meet with the unwillingness of the persons interested to part with the property being acquired.

LEGAL MEANING OF SOLATIUM 
  1. Something is given in compensation for inconvenience, loss, injury, or the like recompense.
  2. Law damages awarded to a plaintiff as compensation for personal suffering or grief arising from the injury 
SOLATIUM IN LAND ACQUISITION 

Solatium is part and parcel of compensation that is payable for compulsory acquisition of land, which may fetch a better price in the market to the landowner. Solatium and interest are integral parts of compensation that is awardable to persons whose lands have been compulsorily expropriated.

Section 30 award of solatium is the Right to fair compensation and transparency in land acquisition, rehabilitation, and resettlement act 2013

Importance of solatium 

  1. The collector having determined the total compensation to be paid , shall, to arrive at the final award,impose a solatium amount equivalent to 100% of the compensation amount i.e;; solatium amount shall be in addition to the compensation payable to any person whose land has been acquired

.Explanation.—For the removal of doubts, it is hereby declared that the solatium amount shall be in addition to the compensation payable to any person whose land has been acquired.

  1. The collector shall issue individual awards detailing the particulars of compensation payable and the details of payment of the compensation as specified in the first schedule.
  2. In addition to the market value of the land provided under section 26, the collector shall,in every case, award an amount calculated at the rate of 12% annum on such market value for the period commencing on and from the date of publication of the notification of the social impact assessment study under section 4 (2) in respect of such land ,till the date of the award of the collector or the date of taking possession of the land whichever is earlier .

CONSIDERATIONS FOR SOLATIUM 

  1. The MARKET value of property +compensation for 
  • Severance 
  • Injurious affection 
  • Temporary and permanent loss of business
  • Shifting charges 
  • Damages to standing crops