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Tuesday, Jan 31, 2006


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Opinion - Courts/Legal Issues


Legalised injustice

K. Ramesh

JUSTICE may be delayed in our legal system, but not injustice, or so suggest my recent encounters with our legal system.

A corporate broking firm took an investor's money by committing forgery. After prolonged hardship, it was proved through findings of the forensic department that the broking firm committed forgery. Watching that the case was not proceeding in its favour, the firm initiated a false claim of huge sums through arbitration in Mumbai. The surprising part was that the investor had no dealing with the firm in Mumbai, there was no agreement with it all — a pre-requisite for initiating arbitration. No mention about the supposed dues from the individual was made by the broking firm in its past dealings, not even one mention, but the arbitrator was constrained to admit the case, since the evidence is heard only in the hearings. The broking firm itself was clear that it had no case to substantiate, but decided to harass the investor , who would be forced to spend its resources to travel to Mumbai.

After six months, the arbitrator threw out the case with the finding that it was a false, frivolous case initiated by the broking firm, intended only to harass, with no single evidence in its side. The shocking part of this is that, having decided thus, the arbitrator did not award costs to the harassed investor, because awarding costs was his discretion. The result: The investor, having won the case, spent money for no fault of his, using available legal recourse. The broking firm abusing the legal system lost the case but succeeded in its attempt in harassing an innocent individual.

In India, anybody can file a criminal case against anybody. An innocent professional was hauled up for a cheque-bouncing case after 14 months of his resigning from his company, that too in a court 2,500 km from his home-town.

The unfortunate professional was termed in the complaint as a `director', while he was never a director in the employer-company. He had no knowledge about the transaction, as it took place several months after his resignation, and he never signed the cheque that apparently bounced. The fact that he resigned more than a year before the time the alleged offence is conclusively proven by certified original statutory record.

The professional will receive a non-bailable warrant if he does not respect the court. So, he had to engage a counsel. The case could drag on for a few years, and, given the abstruse technicalities of law, serpentine procedures and adjournments, proving innocence could be a costly investment in time and money.

The third case is a demonstration of how the police, being the law enforcement agency, can be used to take advantage of lacunae in the legal system. Two contracting parties exchanged services and money — being essentially a civil contractual matter. Disputes arose, and one party did not the pay the other contracting party, and the latter withheld the goods of the non-paying party. The parties exchanged legal notices, threatening each other with legal options. After all this, the matter ended without any drastic action by anybody. Nearly 200 days later, one of the parties filed a complaint with police — turning a civil contractual dispute into a criminal one — and the police took away persons employed by the other party (now `accused') for inquiry. Senior officials of the police were asked how anybody, who admittedly threatens civil litigation, can after such a long time, at his own election, convert the case into a criminal one and use police to extract contractual favours?

The matter was temporarily dropped, and the disappointed moved the Magistrate Court (ex-parte), directing the police to register an FIR. Now, the police are within the legal system to conduct enquiry. Here, again, one can be absolutely confident that truth will succeed and justice will be done to honest party, but when? Confronted with the trade-off between fighting for principles with our police and courts, the alleged `accused' ends up paying more than double the money the other party is entitled to.

All the three cases bring out certain obvious pitfalls in our legal system. First, there can be no doubt that justice will be ultimately done. But the process is a painful one. The wrong-doer has nothing to lose, if he chooses to take advantage of the loopholes in the legal system. While the innocent are afraid of the legal system the system has been perverted to favour injustice even though the end result may be against it.The solution lies in thoroughly overhauling our legal system, particularly criminal legal system, educating police, providing enough safeguards for admitting cases and awarding exemplary damages for those who resort to abusing the legal system.

(The author is a Chennai-based advocate.)

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