FDI IN INDIA HURDLES GOING DOWN

FDI is becoming the hot cake in Indian Political arena, people who are on the right side and some are on the left side in support and protest. Certainly it is a great growth tonic for any economy, and India requires the stimulant for its current economic growth. According to Nomura report net FDI inflows to India could cross USD 30 billion marks this fiscal year.

Indian Government is aggressive to increase the FDI inflows in India. Way back government had opened the retail sector to FDI with economic relax process set in place by the Industrial Policy of 1991, in 1995 WTO General Agreement on Trade in Services, for wholesale and retailing services was the forwarding step. Year 1997 seems to be the mile stone when 100% rights allowed under the government approval route; in cash and carry. The escalation in the initiatives seen in the year 2011 and 2012 when 100% FDI in Single Brand Retail allowed, and on the very next year government allowed 51 percent foreign investment in multi-brand retail. Recently Consolidated FDI Policy (Effective from April 17, 2014), setting new horizon in FDI in India,  the Intent and Objective says 

“It is the intent and objective of the Government of India to attract and promote foreign direct investment in order to supplement domestic capital, technology and skills, for accelerated economic growth. The Government has put in place a policy framework on Foreign Direct Investment, which is transparent, predictable and easily comprehensible. This framework is embodied in the Circular on Consolidated FDI Policy, which may be updated every year, to capture and keep pace with the regulatory changes, effected in the interregnum.”

India is moving fast from restrictive FDI regime to liberal word. Resource, Equity, Execution, Banking, Insurance, Compliance, Infrastructure, and Transportation were barrier in Indian FDI, even   big firms in India were not permitted to retrench or layoff any workers, or close down the unit without the permission of the state government, now, States have been more reform-oriented and stringent regulations is going down.

Recently, pardhan mantra jan dhan yojna (PMJDY), is considered to be the Financial sector reforms, to strengthen the micro finance structure of Indian society.

The Foreign investors are optimistic to Indian market, due to rapid globalization of many industries and vertical integration but, to accelerate FDI flow in India, there are still needs for transparent sector oriented policies and a drastic reduction in time consuming re-tapism and an affirmative collaborative political approach is much needed.

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Digital Signature Laws in India

Digital signature is electronically generated and can be used to make sure the veracity and legitimacy of data. The dawn of information technology revolutionized the whole world, India is not an exception to it; as technological activism is the social behavior in India.

IT Act Provisions Related to Digital Signature

Section 3 of IT Act, made the provision for it as: Authentication of electronic records.-

(1) Subject to the provisions of this section, any subscriber may authenticate an electronic record by affixing his digital signature.

In IT Act, chapter 3 related to electronic governance, sections 4 and 5 are quite relevant.

Section 4 made the provision for Legal recognition of electronic records — where any law provides that information or any other matter shall be in writing, typewritten or printed form then not-withstanding anything contained in such law, given requirement shall be deemed to have been satisfied if such information or matter is—

(a) rendered or made available in an electronic form; and

(b) accessible so as to be usable for a subsequent reference

Section 5 Legal recognition of [electronic signatures] — where law provides that information or any other matter shall be authenticated by affixing the signature or any document should be signed or bear the signature of any person then, notwithstanding anything contained in such law, such requirement shall be deemed to have been satisfied, if such information or matter is authenticated by means of [electronic signatures] affixed in such manner as may be prescribed by the Central Government.

Digital Signature Vs. Digital Certificate

Digital signatures are based on three pointers for authentication – Privacy, Non repudiation and Integrity in the virtual world, while the objectives of digital certificate are the authentication of documents, and bind the person who is putting the digital signature, which based on public key cryptography requires two separate keys, as secret and public. However, both the keys are linked together, one key encrypts the plain text, and another decrypts the cipher text, and neither key can perform both the functions. The other difference is digital signature is an electronic process of signing an electronic document while a Digital Certificate is a computer based record which is the identification of certifying agency or the identity of subscriber

Digital Signature Vs. Electronic Signature

The Information Technology Amendment Bill 2006, replaces the word “Digital” with the word “Electronic” at several places in the principal act, which creates a slight difference between the two, electronic signature is wide in nature, while the digital signature is one of the many kinds of electronic signature.

Section 2(ta) “electronic signature” means authentication of any electronic record by a subscriber by means of an electronic technique specified in the second schedule and includes digital signature and section 2(p) defined “Digital Signature Certificate” means a Digital Signature Certificate issued Under sub-section (4) of section 35.

The Indian Evidence Act and Digital Signature

After the IT Act 2000, it was necessary to make an applicable amendment in the Indian Evidence act, to make it compatible.

Section 3 in the definition of “Evidence”, for the words “all documents produced for the inspection of the Court”, the word “all document including electronic records produced for the inspection of the Court”

Section 47A, says when the court has to form an opinion as to the digital signature or any person, the opinion of the certifying authority which has issued the Digital Signature Certificate is a relevant fact. It means while drawing the conclusion, court gives the weight of the digital signature as a relevant fact.

Further 67A proof as to digital signature – except in the case of a secure digital signature, if the digital signature of any subscriber is alleged to have been affixed to an electronic record the fact that such digital signature is the digital signature of the subscriber must be proved.

Section 85B exhibits the positive presumption as  Presumption as to electronic records and digital signatures.- (1) In any proceedings involving a secure electronic record, the Court shall presume unless contrary is proved, that the secure electronic record has not been altered since the specific point of time to which the secure status relates.

Indian Penal Code

Section 464 Making a false document: A person is said to make a false document or false electronic record—

First — who dishonestly or fraudulently-

Makes or transmits any electronic record or part of any electronic record;

•  affixes any [electronic signature] on any electronic record;
• makes any mark denoting the execution of a document or the authenticity of the  [electronic signature],

with the intention of causing it to be believed that such a document or a part of document, electronic record or  [electronic signature] was made, signed, sealed, executed, transmitted or affixed by or by the authority of a person by whom or by whose authority he knows that it was not made, signed, sealed, executed or affixed; or

Secondly —Who, without lawful authority, dishonestly or fraudulently, by cancellation or otherwise, alters a document or an electronic record in any material part thereof, after it has been made, executed or affixed with  [electronic signature] either by himself or by any other person, whether such person be living or dead at the time of such alteration; or

Thirdly —Who dishonestly or fraudulently causes any person to sign, seal, execute or alter a document or an electronic record or to affix his  [electronic signature] on any electronic record knowing that such person by reason of unsoundness of mind or intoxication cannot, or that by reason of deception practiced upon him, he does not know the contents of the document or electronic record or the nature of the alteration.

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How is an Electronic Contract is Enforced?

Advancement of technology, globalization, speed, convenience and efficiency are the prime attribute to promoting the electronic contract. All the general rules such as offer acceptance and other qualification of contract are mentioned in the Indian Contract Act 1872 are applicable, adding to that certain provisions of IT Act 2000 authenticate its importance.

Browse Wrap Agreement or Browse Wrap License

Browse Wrap term is used to denote access to the use of materials which are available on websites for use and download, which is hyper-linked, and users must agree in exchange for using the website. Such types of agreements are intended to be binding on the contracting parties by the mere browsing of the website.

Such a type of contract does not require the manifestation of assent by clicking “I Agree” or “I Accept” tab, but a web-site user purportedly gives his or her assent by simply downloading or using the product or by entering the website.

An important feature of browse wrap agreement is that the party/ user can see the applicable terms and conditions before downloading/ using the product, which exhibits more transparency compare to other electronic contract, and it deem to be constructive notice by the court.

But it is the strange situation to answer the question like: How does one demonstrate that a user assented to the Terms of Use agreement?

Though there is no way to express sign of consent, and any acceptance of the agreement, if it comes, must be subject on the simple act of browsing the site. It is deem the browse wrap agreement is the implied contract, as there are no clear sign of acceptance, but the other party puts a notice on the website to terms of use, it certainly raises a question: Does it mean it is an implied contract or a standard form of contract?

The answer may touch both the aspects, it is sort of an implied contract, as no clear manifestation of acceptance is given, but the mere use of website implies consent to the terms and conditions of website.

And as for the second aspect, it seems to be standard form of contract, as there is no room for bargain or redlining the contract as the general rule of contract meeting of mind, but the dominance of party subsist. It does not mean that it is the absolute principle, because there are many protective devices available, and merely using the website does not constitute acceptance of the terms of use unless there was evidence that the user knew, or should have known, it means the use is the conditional aspect.

It is also important to perceive the standard contract doctrine which enunciates that when an advantage is offered subject to declared conditions, and the user decides to obtain the benefit with knowledge of the conditions of the offer, the act of taking the benefit constitutes an acceptance of the terms, which therefore become binding on the user.

The same situation In Register.com, Inc. v. Verio, Inc., 356 F.3d 393; 2004 U.S. App. LEXIS 1074; 69 U.S.P. Q.2D (BNA) 1545 a New York court dealt wherein a violation of browse-wrap agreement. It was contended by the defendant that the terms (Terms of Use) did not form a binding contract because there was no” I accept” button to click. But the court held that “act of using the website is deemed to be acceptance”

Conditions for Binding in Browse Wrap Contract

Visibility on Website: There must be a reasonable anticipation that the user of the site would see it, either it is being exhibited to look for or displayed clearly so that user can visualize it easily before using the website.

Manifestation of Over Act: There must be some kind of physical over action, like downloading, accessing a site, that is sufficient to constitute an act of acceptance.

Thus, a browse-wrap agreement can be created by use of a web page or a hyperlink or a small disclaimer on the page. Courts examine the enforceability of browse-wrap agreements on a case-by-case basis, and there are no “bright-line” rules on whether a given agreement is sufficiently conspicuous.

That the icon for the terms of use agreement be placed in the upper left-hand quadrant of the homepage and that all visitors be channeled through the homepage. The reason for this suggestion is that the court will take judicial notice of the fact that all Internet pages open from the upper left-hand quadrant, thus the defendant must overcome the presumption that the icon was viewed. Without this presumption, the plaintiff has the burden of proving the defendant did see the icon.

Notice to the user is the key to enforce-ability.

• Legal enforce-ability in browse wrap agreement by Notice
• Legal enforce-ability is the fundamental condition of any contract, in browse wrap agreement; such as “using the Website, you’re agreeing to the terms and conditions of the agreements claiming that merely by click.

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Indian Laws on Privacy of Digital Information of Users

When we log on to the Internet, innovative technologies present the assurance of an easier life, and also an apprehension of abuse by criminal minds. The statement of United Nations High commissioner for Human Rights, Navi Pillay “Internet privacy as important as human rights” and further the resolution called on the 193 UN member states as “to review their procedures, practices and legislation regarding the surveillance of communications, their interception and collection of personal data, with a view to upholding the right to privacy of all their obligations under international human rights law”, exhibits the importance of digital privacy and law.

Internet is the social behavior of global society; India is no exception to it, data protection and privacy depend on ‘The Information Technology Act 2000′, and this article cannot be completed without the reference of Art 21 and Art 19. While there is no express indication to a right to privacy into the Constitution of India, an interpretation of Supreme Court of India considered it under article 21, life with dignity, and freedom of expression under article 19.

The Information Technology Act, 2000 (IT Act, 2000)

IT Act 2000 was the first constructive attempt on data protection legislation in India; it was the result of  the United Nations General Assembly Resolution A/RES/51/162 on 30th January, 1997 regarding the Model Law on Electronic Commerce.

The prime objective of IT Act 2000 is to provide legal frame work for electronic documents, digital signature, offence and legal remedy. It has two folds, it enunciated compensation (civil liability), and punishment (criminal procedure), both in public and private domain.

The Information Technology Amendment Act 2008, initialize data protection regime in India.    it  was the off spring of data protection laws in European Union, which obligates it’s member States to prohibit to send personal data to third party unless same genesis of laws are in place.

Image Source: Judicial Learning Center

Data Protection and Privacy

Section 43A (Penalty and compensation, for damage to computer, computer system, etc) is an important provision in the act which is based out on negligence, implementing reasonable security practices and procedures, wrongful loss and wrongful gain and compensation. This section envisages civil liability in terms of penalty and compensation If any person without permission of the owner or any other person who is in charge of a computer, computer system or computer network – accesses or secures , downloads, copies or extracts, introduces or causes to be introduced a computer virus, damages or causes to be damaged, disrupts or causes disruption, destroys, deletes or alters any information or computer or computer systems.

Sections 65 is the penal provision, as tampering with computer source documents, which establishes imprisonment up to three years, or with fine which may extend up to two lakh rupees, or with both, who knowingly or intentionally conceals, destroy, or alter any computer source code used for a computer, computer programme, computer system or computer network, when the computer source code is required to be kept or maintained by law for the time being in force.

Section 66 is the hot cake in recent time, it deals with Computer related offences, Section 66 read with section 43 execute a criminal mandate as if any person, dishonestly or fraudulently, does any act referred to in section 43, he shall be punished with imprisonment for a term which may extend to three years or with fine which may extend to five lakh rupees or with both. The word used in the section dishonestly or fraudulently in relation to section 43 for curtaining hacking to computer or unauthorized use of protected information.

Section 72, Penalty for breach of confidentiality and privacy, – Directly demonstrate privacy protection with a penal provision. Section says “Save as otherwise provided in this Act or any other law for the time being in force, if any person who, in pursuance of any of the powers conferred under this Act, rules or regulations made thereunder, has secured access to any electronic record, book, register, correspondence, information, document or other material without the consent of the person concerned discloses such electronic record, book, register, correspondence, information, document or other material to any other person shall be punished with imprisonment for a term which may extend to two years, or with fine which may extend to one lakh rupees, or with both.”

Section 43A and Section 72A, protected the data even outside the India, but the expectation of corporate are too high, ‘The information technology amendment Act, 2008 was aimed to rectify such lacunas in our country, still much more is needed.

The Information Technology (Reasonable security practices and procedures and sensitive personal information) Rules 2011 has been notified by Ministry of Information and Technology under Section 43A to define ‘sensitive personal information’ and to stipulate ‘reasonable security practices’.

Right to Information Act 2005 (RTI Act)

RTI Act is not an erosion to right to privacy. Indeed RTI Act established a safeguard against the violation of privacy under section 8(j), which exempt from disclosure of personal information, which is not serving any public purpose. further under section 11, establish a procedure where PIO intends to disclose any information on a request made under this act, which relates to or has been applied by a third party and has been treated as confidential by that third party, and such objections in writing or oral by third party shall be kept in view while taking a decision about disclosure of information.

Does it mean the present laws related to data protection and privacy are sufficient?

The answer is not affirmative, in the light of public policy, and transparency. Although there are various amendments and judicial pronouncements to strengthen data protection, but still the existing law is not competent to cope with emerging technologies.  Issues like conflict of jurisdiction, IPR protections, domain names, still need to be addressed and the training to investigations agencies is also an important part. I can remember an interesting case where in a CD was being seized by police personal for evidence, and to preserve the CD the Investigation Officer made a hole in it and then tagged it into the file, before producing in the court of law.

About the author: Naveen Kumar Shelar is an advocate and a legal consultant, who founded the online law firm –The law office. He is an author of several academic & professional legal books and management articles, and established an NGO called “Nayaya A Voice For Justice”  to ensure that nobody is deprived of an opportunity to seek justice merely for want of funds or lack of knowledge.

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Court’s territorial jurisdiction concerning criminal complaints filed under Chapter XVII of the Negotiable Instruments Act, 1881 (for short, ‘the NI Act’)

Court’s territorial jurisdiction concerning criminal complaints filed under Chapter XVII of the Negotiable Instruments Act, 1881 (for short, ‘the NI Act’)

An offence under Section 138 of the Negotiable Instruments Act, 1881 is committed no sooner a cheque drawn by the accused on an account being maintained by him in a bank for discharge of debt/liability is returned unpaid for insufficiency of funds or for the reason that the amount exceeds the arrangement made with the bank.

(ii) Cognizance of any such offence is however forbidden under Section 142 of the Act except upon a complaint in writing made by the payee or holder of the cheque in due course within a period of one month from the date the cause of action accrues to such payee or holder under clause (c) of proviso to Section  138.

(iii) The cause of action to file a complaint accrues to a complainant/payee/holder of a cheque in due course if 

(a) the dishonoured cheque is presented to the drawee bank within a period of six months from the date of its issue.  

(b) If the complainant has demanded payment of cheque amount within thirty days of receipt of information by him from the bank regarding the dishonour of the cheque and 

(c) If the drawer has failed to pay the cheque amount within fifteen days of receipt of such notice.

(iv) The facts constituting cause of action do not constitute the ingredients of the offence under Section 138 of the Act. 

(v) The proviso to Section 138 simply postpones/defers institution of criminal proceedings and taking of cognizance by the Court till such time cause of action in terms of clause (c) of proviso accrues to the complainant. 

(vi) Once the cause of action accrues to the complainant, the jurisdiction of the Court to try the case will be determined by reference to the place where the cheque is dishonoured. 

(vii) The general rule stipulated under Section 177 of Cr.P.C applies to cases under Section 138 of the Negotiable Instruments Act. Prosecution in such cases can, therefore, be launched against the drawer of the cheque only before the Court within whos jurisdiction the dishonour takes place except in situations where

the offence of dishonour of the cheque punishable under Section 138 is committed along with other offences in a single transaction within the meaning of Section 220(1) read with Section 184 of the Code of Criminal Procedure or is covered by the provisions of Section 182(1) read with Sections 184 and 220 thereof

Full Judgement Dashrath Rupsingh Rathod Versus State of Maharashtra & Anr 01-08-2014

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A Magistrate not become functus officio to proceed on a Protest Complaint just because he accepted a refer report from the police on the same matter

Whether a Magistrate after accepting a negative final report submitted by the Police can take action on the basis of the protest petition filed by the complainant/first informant?

Magistrate  had  not become  “functus officio” and was denuded of all power to proceed in the  matter. 

Supreme four of  India In Rakesh and another vs. State of UP the Supreme Court [Crl. Appeal 1412/2014]

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.1412 OF 2014

(Arising out of SLP(CRL.) No.3308 of 2013)

RAKESH & ANR ... APPELLANTS

VERSUS

STATE OF U.P. & ANR. ..

J U D G M E N T

RANJAN GOGOI, J.

1. Leave granted.

2. Whether a Magistrate after accepting a negative final report submitted by the Police can take action on the basis of the protest petition filed by the complainant/first informant? The above question having been answered in the affirmative by the Allahabad High Court, this appeal has been filed by the accused.

3. The bare facts that would be required to be noticed are as follows :

Respondent No.2 herein lodged an FIR which was registered as Crime Case No.480 of 2000 under Section 364 of the Indian Penal Code at the Police Station Gosai Ganj District Sultanpur against the appellants and two other accused persons. On completion of investigation, the investigating officer submitted a final report to the court that no case is made out against the appellants and the other two accused and that they have been falsely implicated in the case. By order dated 26th November, 2002, the learned Magistrate accepted the final report but simultaneously directed that the case be proceeded with as a complaint case. The statements under Sections 200 and 202 of the Code of Criminal Procedure (Cr.P.C.) were recorded and the accused were summoned by the learned trial court to face the trial. Against the aforesaid orders passed by the learned Magistrate, the present appellants moved the High Court of  Allahabad raising the question noticed earlier. The High Court having answered the said question in the affirmative, this appeal has been filed. 

4. We have heard learned counsel for the parties. 

5. In Bhuneshwar Prasad Sinha vs. State of Bihar 1 , the very same question came up for consideration before the Patna High Court. The High Court answered the question in the negative by holding – 

“In that case it has been held by the 

Supreme Court that if the Magistrate agrees 

with the opinion of the police he may accept 

the final report and close the proceedings. It 

will be deemed that the proceedings against 

the accused persons in respect of the facts

constituting the offence have been closed by 

the Magistrate in a Judicial-Proceeding. If it is 

so, such proceeding can only beset aside in 

revision by the higher authority unless and 

until the order is not set aside, the Magistrate 

is not entitled to take cognizance on the 

basis of the complaint petition or protest

petition in respect of the same facts 

constituting the offence as mentioned in the 

final form. In the present case, it is clear from 

the order dated 6th Dec. 1978, that the final 

form was accepted by the court earlier. If it is 

so, then the Magistrate was not justified in 

taking cognizance in respect of the same 

facts constituting the offence which were 

mentioned in the final form. In order to check

1 [1981 Crl.LJ 795] 

the litigation, it is necessary that when a 

judicial order is passed by accepting the final 

form such order should not be set aside by  

the Magistrate by taking cognizance on the 

basis of the complaint petition.” 

6. In the appeal filed against the aforesaid order of the 

Patna High Court, this Court, however, held that – 

“The High Court was clearly in error in 

thinking that the Magistrate could not take 

cognizance of a case upon complaint because 

he had earlier refused to take cognizance of

the case on a police report. The order of the 

High Court is set aside. The matter is 

remitted to the Chief Judicial Magistrate, 

Patna for disposal according to law. If the  

accused have any further objections to raise,

they may do so before the Chief Judicial 

Magistrate.” 

The decision of this Court is reported in Gopal Vijay 

Verma vs. Bhuneshwar Prasad Sinha & Ors. 2 .

7. If we are to go back to trace the genesis of the views expressed by this Court in Gopal Vijay Verma (supra), notice must be had of the decision of this Court in H.S. Bains vs. 2 1982 (3) SCC 510 State (Union Territory of Chandigarh) 3 wherein it was

held that after receipt of the police report under Section 173, the Magistrate has three options –

“(1) he may decide that there is no sufficient 

ground for proceeding further and drop 

action;

(2) he may take cognizance of the offence

under Section 190 (1)(b) on the basis of the

police report and issue process; this he may

do without being bound in any manner by the

conclusion arrived at by the police in their

report;

(3) he may take cognizance of the offence

under Section 190(1)(a) on the basis of the

original complaint and proceed to examine

upon oath the complainant and his witnesses

under Section 200. If he adopts the third

alternative, he may hold or direct an inquiry

under Section 202 if he thinks fit. Thereafter

he may dismiss the complaint or issue

process, as the case may be.”

8. The second and third options available to the Magistrate as laid down in H.S. Bains (supra) has been referred to and relied upon in subsequent decisions of this Court to approve the action of the Magistrate in accepting the final report and at the same time in proceeding to treat 3 [1980 Crl. LJ 1308],  either the police report or the initial complaint as the basis for further action/enquiry in the matter of the allegations levelled therein. Reference in this regard may be made to the decision of this Court in Gangadhar Janardan Mhatre vs. State of Maharashtra & Ors.4. The following view may be specifically noted –

“…………….The Magistrate can ignore the

conclusion arrived at by the investigating

officer and independently apply his mind to

the facts emerging from the investigation and

take cognizance of the case, if he thinks fit,

exercise his powers under Section 190(1)(b)

and direct the issue of process to the

accused. The Magistrate is not bound in such

a situation to follow the procedure laid down

in Sections 200 and 202 of the Code for

taking cognizance of a case under Section

190(1)(a) though it is open to him to act

under Section 200 or Section 202 also. [See

India Carat (P) Ltd. v. State of Karnataka]”

(Para 6)

9. The view expressed by this Court in Gopal Vijay Verma (supra) has been followed in Mahesh Chand vs. B.Janardhan Reddy & Anr. 5 and also in a somewhat recent pronouncement in Kishore Kumar Gyanchandani vs. 4 [2004 (7) SCC 768] (para 9)

5 [2003 (1) SCC 734] (para 12) 6 G.D.Mehrotra & Anr.6. The clear exposition of law in para 12 of Mahesh Chand (supra) which is extracted below would leave no manner of doubt that the answer to the question posed by the High Court is correct.

“There cannot be any doubt or dispute that

only because the Magistrate has accepted a

final report, the same by itself would not

stand in his way to take cognizance of the

offence on a protest/complaint petition; but

the question which is required to be posed

and answered would be as to under what

circumstances the said power can be

exercised.”

10. In the present case, the contention advanced on behalf of the accused pertained to the question of jurisdiction alone; it was urged that having accepted the final report the learned Magistrate had become “functus officio” and was denuded of all power to proceed in the matter. The above stand taken and the answer provided by the High Court would not require us to consider the circumstances in which the exercise of power was made. 6 [2011 (15) SCC 513]7

11. In Kishore Kumar (supra) the question has been gone into again and reliance has been placed on Gopal Vijay Verma (supra) to reiterate the same conclusion.

12. In view of the above, it has to be held that this appeal is

without any merit or substance. It is accordingly dismissed.

……..…..…………………………...J.

[Sudhansu Jyoti Mukhopadhaya]

……..…………………………….……J.

[Ranjan Gogoi]

New Delhi;

August 13, 2014.

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