Test Preparation on IBPS SO Mains Law Officer Mock Test-1

Mutatis mutandis is (literally) Latin for “with those things having been changed which need to be changed.” However, it is more often translated or understood to mean “the necessary changes having been made”. It essentially indicates that new terms have been substituted or that the reader should note any differences from the original and take them into consideration.

Sometimes an accused is found to resile from his confession in the Committing Magistrate’s Court or in the Sessions Court. Generally, where an accused adheres at the trial to a previous judicial or extra-judicial confession, it may, if the Court believes it, be acted upon without corroboration. It is a settled rule of evidence that unless a retracted confession is corroborated in material particulars, it is not prudent to base a conviction on its strength alone. Although it is not necessary that a retracted confession should be corroborated in each material particulars, it is sufficient that there is a general corroboration of the important incidents mentioned in the confession. Expression “corroboration of material particulars” does not imply that there should be a meticulous examination of entire material particulars. It is enough that there is a broad corroboration in conformity with the general trend of confession. But a retracted confession stands on a different footing. When a retracted confession is given in evidence, the Court has first to see if it is admissible. From the view of admissibility alone, the mere fact that the confession is retracted is immaterial, unless it is shown to be improperly induced. Where there is only his own retracted confession, as against the accused and there is no independent evidence to corroborate his confession it is unsafe to convict the accused solely on the basis of retracted confession. Retracted confession without independent corroboration cannot sustain a conviction.

‘Part III - Fundamental Rights’ is a charter of rights contained in the Constitution of India. It guarantees civil liberties such that all Indians can lead their lives in peace and harmony as citizens of India. These include individual rights common to most liberal democracies, such as equality before the law, freedom of speech and expression, and peaceful assembly, freedom to practice religion, and the right to constitutional remedies for the protection of civil rights by means of writs such as habeas corpus. Violation of these rights results in punishments as prescribed in the Indian Penal Code, subject to the discretion of the judiciary. The Fundamental Rights are defined as basic human freedoms which every Indian citizen has the right to enjoy for proper and harmonious development of personality. These rights universally apply to all citizens, irrespective of race, place of birth, religion, caste, creed, color, or Gender. They are enforceable by the courts, subject to certain restrictions. The Rights have their origins in many sources, including England’s Bill of Rights, the United States Bill of Rights, and France’s Declaration of the Rights of Man. The six fundamental rights recognized by the constitution are: (1). Right to equality, including equality before the law, prohibition of discrimination on grounds of religion, race, caste, sex, or place of birth, and equality of opportunity in matters of employment, abolition of untouchability, and the abolition of titles. (2). Right to freedom which includes speech and expression, assembly, association or union or cooperatives, movement, residence, and right to practice any profession or occupation (some of these rights are subject to security of the State, friendly relations with foreign countries, public order, decency or morality), right to life and liberty, right to education, protection in respect to conviction in offenses and protection against arrest and detention in certain cases. (3). Right against exploitation, prohibiting all forms of forced labor, child labor, and traffic in human beings; (4). Right to freedom of religion, including freedom of conscience and free profession, practice, and propagation of religion, freedom to manage religious affairs, freedom from certain taxes, and freedom from religious instructions in certain educational institutes. (5). Cultural and Educational rights preserve the Right of any section of citizens to conserve their culture, language, or script, and the right of minorities to establish and administer educational institutions of their choice. (6) Right to constitutional remedies for enforcement of Fundamental Rights. Fundamental rights for Indians have also been aimed at overturning the inequalities of pre-independence social practices. Specifically, they have also been used to abolish untouchability and hence prohibit discrimination on the grounds of religion, race, caste, sex, or place of birth. They also forbid the trafficking of human beings and forced labor. They also protect the cultural and educational rights of ethnic and religious minorities by allowing them to preserve their languages and also establish and administer their own education institutions. The right to property was originally a fundamental right but is now a legal right.

The Indian Contract Act, 1872 “Contract of guarantee”, “surety”, “principal debtor” and “creditor” - “A “contract of guarantee” is a contract to perform the promise, or discharge the liability, of a third person in case of his default. The person who gives the guarantee is called the “surety”, the person in respect of whose default the guarantee is given is called the “principal debtor”, and the person to whom the guarantee is given is called the “creditor”. A guarantee may be either oral or written.” COMMENTS Bank guarantees Once it becomes apparent that there was no chance to fulfill the conditions in the bank guarantee, invocation of the bank guarantee would not be premature or unjustified; Daewoo Motors India Ltd. v. Union of India, (2003) 4 SCC 690. It is well settled that a bank guarantee is an autonomous contract. It is in common parlance that the issuance of guarantee is what a guarantor creates to discharge liability when the principal debtor fails in his duty and guarantee is in the nature of the collateral agreement to answer for the debt; Syndicate Bank v. Vijay Kumar, AIR 1992 SC 1066.

The Negotiable Instruments Act, 1881 85. Cheque is payable to order (1). Where a cheque payable to order purports to be endorsed by or on behalf of the payee, the drawee is discharged by payment in due course. (2). Where a cheque is originally expressed to be payable to bearer, the drawee is discharged by payment in due course to the bearer thereof, notwithstanding any endorsement whether in full or in blank appearing thereon and notwithstanding that any such endorsement purports to restrict or excluding further negotiation.] 1.Section 85 re-numbered as sub-section. A. Thereof by Act 17 of 1934, sec 2.2. Inserted by Act 17 of 1934, sec. 2.

Devaynes v Noble The rule in Clayton’s Case (or, to give it its full legal name and citation: Devaynes v Noble (Clayton’s Case) (1816) 1 Mer 572) is a common-law presumption in relation to the distribution of monies from a bank account. It is based on the legal fiction that, if an account is in credit, the first sum paid in will also be the first to be drawn out and, if the account is overdrawn, a payment in is allocated to the earliest debit on the account which caused the account to be overdrawn. Applications to a partnership The rule has special applications in relation to partnerships upon the death of a partner. In most jurisdictions, the death of a partner ordinarily has the legal effect of dissolving the firm. The partners’ personal representatives have no right to step into the partner’s shoes; they cannot take part in its management; they can only claim the deceased partner’s share in the assets of the firm. The banker, who provides financial accommodation to the firm, can have no objection in continuing the account; the bank can presume that the surviving partners will account to the representatives of the deceased for his share in the assets. Where the firm has a debit balance the account should be stopped to fix the liability of the estate of the deceased partner and to avoid the operation of the rule in Clayton’s case.