RULE OF LAW - No innocent shall ever be punished !!

All newspapers headline carry the verdict of trial court – this a concern of an ordinary citizen on the rule of law, the path the criminal cases traverse, the treatment the under trials get and the time that it takes for the punishment (as and when done !). In movies, those in jail would wear jail uniform, stand in the queue for their daily kanji and would do manual labour. Incarceration is a punishment and criminals are to undergo punishment by being behind the bars – it is no place for luxurious living.

The 2008 Mumbai attacks were more than ten coordinated shooting and bombing attacks across Mumbai, nay an attack on the Nation which began on 26 November 2008 and lasted until 29 November, killing at least 173 people and wounding at least 308. The dead included committed Police officers and trained military personnel, sacrificing themselves for the cause of the Nation. The entire sordid episode would have had a different dimension; some local media (& some foreign media) would have painted stories of pain thrust on thyself but for the lone terrorist who was caught alive.

This terrorist Mohammed Ajmal Amîr Kasâb was imprisoned. His acts had been captured on CCTV at Chatrapati Shivaji Terminus. Tukaram Omble did not think of his life, lost his and ensured capture of Kasab. He was imprisoned ; based on newspaper reports, the cost in maintenance of this criminal is Rs.8.5 lakhs per day, who has been provided medical and legal assistance by the Nation for waging WAR AGAINST THE NATION. A special cell was created in the JJ hospital and bullet proof room had cost the Nation a crore of rupees. During this period, Kasab asked for Urudu times and permission to walk in the verandah.

The rule of law is a legal maxim which encompasses legal principles forming the foundation of a civilised society. Not a single innocent person should be punished and every one is entitled to a fair trial are the maxims. The criminal procedure for adjudicating whether one has violated criminal law provides a long rope and much of time. The burden of proof is on the prosecution to prove guilt beyond doubt. That calls for substantive evidence. How many would be willing to adduce evidence and whether they will be distorted are tough questions to answer.


It is irony that after 18 months of state benevolence to the accused, the verdict has come. Still the 26/11 trial is touted to be the fastest ever terror trial in India – which recorded 3912 pages of evidence, 658 witnesses being examined in 271 days. The 1993 Mumbai serial blasts took year to complete.


Even for a thing which was telecast live, watertight evidence was required. This was the most heinous crime of waging war, causing terror and murdering innocent people. With all this, he only faces the prospect of death by hanging. If death penalty is awarded it is stated that HC will have to confirm it regardless of whether the accused appeals or not as this only a Trial Court and legal battle can prolong to Supreme Court and President can commute death – 51 pending already. Six of the 86 charges only did not stick that too for technical reasons.


Those who lost their lives include Hemant Karkare, Saluskar, Omble, Ashok Kamte, Maj Sandeep Unnikrishnan and host of others. In this sordid episode the 11 year old girl who was maimed by a bullet injury, fell unconscious but held her nerve to nail the culprit in Court six months later deserves special appreciation. Her testimony was an important point in the trial. On June 10, 2009, the young girl appeared in crutches in Court and identified Kasab from among the three accused. The girl reportedly said "I don't want other children to face what I had to go through. I do not want people to become a victim of terror”. The girl was only nine and for no fault of hers carries her disability for the rest of her life.
Should the culprits be allowed to go scot free ? Are we too soft a Nation ?? whether democracy is too elongated a process ? Where will all these delay lead us to ?
Appeal, Presidential clemency all should be part of a process perhaps for some who had committed some crime in a emotional spur and repents later – Should they be granted for hard core trained criminals whose aim was to main the Nation is to be thought of ?

Regards – Sampathkumar.

T 20 WC - Rain mars matches and Mahela hits a ton

IT IS RAINING IN THE WINDIES…… Before the WC began, in 150 matches there were only two T20 hundreds. In the last 48 hours, the tally has doubled. Mahela Jayawardene played a fine innings yesterday against the Zimbabweans underlining the fact that T20 is not all about power hitting and smashes.


Have you heard of life turning full cycle. Sanath Jaya who nightmarishly marred the career of some pacers started his batting at low down the order – now he is in the Team; opened by Dilshan and Jayawardene. As wickets fell, one was expecting this swash buckler to come; today he came in at no. 8. Sad…….


Denagamage Proboth Mahela de Silva Jayawardene once captained Lankans for long; has 9120 test runs and 8702 one day runs – 27 + 12 centuries. He is considered not to attacking batsmen, adept in rotating the strike, has played 24 T20s scoring 522 runs.
But yesterday was different. Jaya flowed in the first over itself of Chris Mpofu (try pronouncing it). A cut, six over long off and on drive set the tempo. Took upon Elton Chigumbura, slogged Greame Cremer for six and treated Greg Lamb with disdain. On 35 he could have been gone but the throw missed the mark and earned him a reprieve.


He continued from where he had left against the Kiwis and in the end made a polished ton. Last time it was Dilshan all the way – but he is presently struggling and a man who was almost considered not good enough for T20 is now making waves.


When Zimbabwe had to chase 173, Duckworth Lewis was to the fore due to rain. First it was 104 from 11 but brought to stop abruptly as it rained after 5 when Zimbabwe were 29 for 1 where they should have been 43. Malinga, Mendis, Jayasurya, Randiv all had a bowl.
There was another farcical end in the other match between W Indies and England. England batting first made 191. WI had a target of 60 in 5 overs, won with a ball to spare. Pollard failed to trouble the scorers. Darren Sammy was the player of the match for his 2/22


With regards – S Sampathkumar.

GREAT INNINGS BY SURESH RAINA - T20 WC AT ST LUCIA

The ICC World T20 Group C match – 5^th match of the tournament generated lot of interest because of Sanu, (Sanu Who ??)

Unlike its bigger cousins, T20 is relatively new and this is only the 155^th match.  Till recently, 1957 Test matches and 2978 one dayers have been played.  Today’s match was played at Beausejour Stadium, Gross Islet, St. Lucia.  In the inaugural edition in 2007, India created history in topping the 12 teams format, beating Pakis in the finals.  (Remember Misbah shot !) in the next edition in June 2009, India went crashing down and this time the expectations are very high, especially after the IPL mania just getting over.

Today’s arena is the island country in the eastern Carribean sea founded in 1886 by Sir Arthur Sidders setting sail from port of Bristol, England.  St. Lucia is located in the islands of St Vincent and Grenadines, near Barbados.  This picturesque island nation has been the home of two nobel laureates Arthur Lewis and Derek Walcott.  The ground formerly known as Beausejour Stadium has been in used from 2002. In 2006 it became the first ground in the West Indies to stage a floodlight ODI when Zimbabwe were the visitors. Constructed on 22 acres, the stadium has a seating capacity of 15,000 including 18 hospitality suites and a modern pavilion that offers each team its own gym, lounge, balcony and conference room. 

Today, Greame Smith  Smith won the toss and chose to utilize the moisture by putting Indians in.  Gauti is not playing today and Dinesh Karthik is his replacement.  Another change is Piyush Chawla coming in for Zaheer khan.  Murali Vijay was out for a first ball duck and SK Raina walked in of the fourth ball of the first over with score reading 4/1.  Raina was born in Muradnagar, Ghaziabad, UP on 27^th Nov 1986 and is more or less a regular player in shorter versions with Dhoni having great confidence in his abilities.  He did good justice to his potential today.

Proteas employed 6 bowlers against him and all were treated with disdain – scoring 20 & 33 of Kallis and Kleinveldt respectively.  In the matches played thus far, only two players have registered scores of 100.  CH Gayle against SA at Johannesberg in 2007 and BB Mccullum against Aussies at Christchurch in 2009.  Today with Karthik gone at 5.3 (32/2), India badly wanted Raina to score.

Over no. 18 was the one Indians cherished.  Kelinveldt was hoisted over midwicket by Yusuf for a 6; second was a single; Raina hit the third on the leg side for 4; followed with one over extra cover for 4; hit straight for a four and the last one was dispatched nonchalantly over long off for a six – 25 runs.

Raina has reached 93 and expectation run high for his and India’s maiden century in T20.

The last over – 3^rd ball Raina hoisted over midwicket and from the moment it hit the middle, it was certain.  Raina confidently showed his hand and celebrated even before the ball landed.

Great moment.  A century and perhaps a match winning knock at that.

Regards – Sampathkumar.

Bankers Blanket Insurance - Diferent judgements in different countries - what is common ?

Banks transact in money, negotiable documents and at places valuable gold and jewellery are deposited, pledged for loan and so on. It is a potential high value accumulation place. It is susceptible to crime risks such as burglaries, armed robberies and thefts (by employees or other parties). There are policies covering Fire, Burglary and other allied risks. Banker’s Blanket Policy is a composite policy which provides a comprehensive coverage to the bankers.

Recently I had circulated an interesting judgment of Indian Supreme Court – in a BB Policy pertaining to period 1976 – 77 issued by United India Fire & General Insurance Co Ltd (the name of United India in those days) to Amravati Dist. Central Coop Bank Ltd. The claim arose out of dishonest acts of an employee who committed a series of embezzlements. The amount claimed was Rs.344450/- and the Insurers after applying policy excess had offered settlement of Rs.29000/-

That led to a chain of litigation – Arbitration, Civil Court, remission back to Arbitrator, High Court and eventually dismissed at Apex Court. The main bone of contention of Excess which was held by the Supreme Court that each embezzlement was to be treated as a separate act by itself and the series of events could not be put forth together as a single claim. The Court relied upon a earlier judgement of Single Judge of Bombay High Court (Central Bank of India Ltd. v. New India Assurance Co.Ltd. (AIR 1981 Bombay 397)) who held that the word Excess meant that the Bank is to be considered as co-insurer to the extent of 25% subject to minimum excess stipulated. Here also, it was interpreted that the word is of common occurrence in the field of insurance and may mean either the right to make a claim or an assertion of a right. The plain object of the clause, as stated earlier, is to exempt the insurance company from the liability to pay small claims which the Bank has to bear itself. The word, "claim" in this clause means the occurrence of a state of facts which justifies a claim on insurer and does not mean the assertion of a claim on company. In other words, by the judgment, the operation of the Excess Clause is determined by the facts which give rise to the claim and not by the form in which the claim is asserted.

Irrespective of the facts of the case, I felt that the quantum and merits of the case certainly did not deserve spending 34 years in litigation in various Courts.

A friend of mine sent details of a similar case with different judgment. Perhaps the judgments are brought about more by the arguments and averments made before the Hon’ble Court.

It was also a case of embezzlement but the battleground being Telaviv, Israel. It is stated that Israeli courts rarely deal with criminal insurance policies in general, and with bankers' blanket bond policies in particular, resulting in few court judgments considering such policies. This is a judgement pronounced on May 31 2007 by the Tel Aviv District Court in The Official Receiver Acting as the Liquidator for the Bank of North America v Assurance General de France (CF 1516/89).

Some facts of the case : The Bank of North America was an Israeli bank established in 1978. On August 14 1985 the Central Bank of Israel took over the bank's management due to suspicions of irregularities, embezzlement and forgeries committed by the bank's directors. Shortly afterwards, the bank entered into liquidation proceedings.

Between August 8 1984 and August 7 1985 the bank was covered under a bankers' policy issued by Assurance General de France, which provided cover for, among other things, infidelity of bank employees. The policy was written on a discovery basis - that is, it provided cover for losses discovered by the insured during the policy period.

On August 16 1985, a few days after the central bank took over management of the bank, it sent a notification to the insurer concerning "irregularities which indicate the possibility of embezzlement of a large sum perpetrated in the bank's Jerusalem branch". It later transpired that the bank's management and directors were involved in various cases of embezzlement.

The insurer declined the bank's request for coverage and the bank's liquidator filed a claim with the Tel Aviv District Court.

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The Insurer refused citing breach of disclosure duties, discovery after expiration of policy and the applicability of the Act of director exclusion.

After lengthy legal proceedings, the district court handed down its judgment, in which it rejected the bank liquidator's claim due to the fact that the loss was discovered after the termination of the policy period. It also analyzed the parties' contentions on Imputation of knowledge, Discovery of loss, Director’s act exclusion and limit of liability.

Without dwelling at length on these, the observation of limit of liability was ruled by the Court that “every loss or series of losses arising from events that were interconnected by a causal connection should be considered as a single loss”.

The Court rejected the liquidator’s claim and ruled in favour of the Insurer as the loss was not discovered during the policy period, going by the conditions of the Policy. Perhaps this would again be challenged in the Appellate Court.

The moral of these is that various Courts tend to interpret the same issue in different ways, based on the other facts and on the arguments advanced.

The other analogy is that this claim also occurred in 1985 and was decided at a District Court in 2007 (after 22 long years) and if the parties had appealed, perhaps would extend for some years. Recall that the case decided in Apr 2010 by Apex Court of India is of 1977-78.

Strange are the ways of people, who chose to litigate.

Regards – S Sampathkumar.

Inputs on Tel Aviv decision courtesy : www.internationallawoffice.com & Israli law firm www.levitansharon.co.il.