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The article deals with the law applicable to control contracts within a group of corporations in the sense of §§ 291 et seq. AktG. Here, the Rome I Regulation calls for a reassessment of current conflict-of-laws approaches. As the article seeks to show, applying the Rome I Regulation to corporate control contracts demands a contractual qualification of the latter. Interpreting the notions “contractual obligations” and “questions governed by the law of companies” according to EU law methods leads to an extensive definition of the former and a narrow scope of application of the latter provision. Two aspects merit special attention. First, a systematic comparison to the Brussels I Regulation has to be drawn. Under Brussels I, the ECJ has extensively interpreted the term “contractual relation”, especially in contrast to company law questions. Secondly, primary EU law, namely the freedom of establishment, demands contractual freedom of choice for corporate control contracts. Domestic law provisions protecting creditors and minority shareholders can be applied as overriding mandatory provisions in the sense of art. 9 Rome I Regulation.
The cross-border enforcement of claims shall be facilitated by the adoption of a European account preservation order. In view of the heterogeneous enforcement systems of the EU Member States this undertaking resembles the attempt to introduce a European enforcement law through the back door. In addition, the current draft of a Council Regulation considers neither the constitutional principles nor the system of the Council Regulation (EC) No. 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters. The following article illuminates these aspects and makes suggestions to reduce obstacles to the cross-border enforcement of claims in the existing system of Council Regulation (EC) No 44/2001.
The article reviews a judgment of the European Court of Justice (Fourth Chamber) of 15 December 2011 (C-384/10), relating to the construction of Article 6(2)(b) of the Rome Convention of 19 June 1980 on the law applicable to contractual obligations. Dealing with labour aboard a sea-going vessel, the ECJ ruled that the concept of “the place of business through which the employee was engaged” must be understood as referring exclusively to the place of business which engaged the employee and not to that with which the employee is connected by her actual employment. Thus, the ECJ approaches a modern classic of European conflicts law in employment matters, but unfortunately takes the wrong side in a long-standing controversy between a “contract test” and a “function test”. The author analyses the relevant issues of cross-border labour in the transportation sector, explores the decision’s background in EU private international law, and discusses its consequences for the coherency and justice of the system of connecting factors in Art. 6 Rome Convention/Art. 8 Rome I Regulation.
The European Court of Justice has developed an autonomous conception of substantive res judicata concerning a special question of the international jurisdiction of the courts. The claim dismissing adjudication by first instance courts comprises, inter alia, the prejudicial question of the validity of a choice-of-forum clause, which shall be binding on the Court of recognition in accordance with Art. 33 of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters. The decision must be rejected because the interests of the parties are not taken into account sufficiently.
The ECJ’s decision discussed in this article concerns two provisions of the Brussels I Regulation. In the first part of its ruling the ECJ has held that the concept of “civil and commercial matters” of Art. 1(1) includes an action for recovery of an amount unduly paid by a public body in compensation of an act of persecution carried out by a totalitarian regime. The second part of the decision, that is concerning Art. 6(1), clarifies that a “close connection” between the claims exists if the defendant’s pleas have to be determined on a uniform basis and that the provision does not apply to defendants domiciled outside of the EU. Regarding the approach of the court to the interpretation of the terms “civil and commercial matters” and “close connection”, this article concludes that the autonomous construction of the Regulation does in certain cases allow for the recourse on national law.
Thirteen years after the landmark Ingmar case, the ECJ has again been asked to define the concept of overriding mandatory provisions and, in particular, to characterise national rules transposing Directive 86/653/EEC on commercial agents. Whereas in Ingmar the parties had chosen the law of a non-EU-Member State that did not provide for a level of protection required by European law, Unamar involves a scenario where the law designated by the parties is the law of a Member State which meets the minimum requirements laid down by Directive 86/653/EEC. The question brought before the ECJ in the case at hand is whether the court of another EU Member State may nonetheless apply its national provision as overriding mandatory rules on the grounds that the protection of a commercial agent under the lex fori goes beyond that provided for by the European Directive. Since the ECJ answers this question in the affirmative, Unamar may have far-reaching consequences for the system of European private international law.
Different legal systems provide very different rules for determining the parental responsibility of non-married parents. Therefore, if the habitual residence of the child changes, the joint responsibility of non-married parents established under the law of the child’s former residence state may become extinct under the law of the new residence state. In order to avoid this unreasonable result, Article 16 (3) of the 1996 Hague Convention on the Protection of Children expressly rules that parental responsibility which exists under the law of the state of the child’s habitual residence persists after a change of that habitual residence to another state. However, Article 16 (3) is not applied in German courts if the child’s habitual residence changed before the Convention came into force in Germany on 1 st January 2011. In such cases, joint parental responsibility appears to cease.
The present decision of the Oberlandesgericht Karlsruhe shows that the problems usually can be solved by a judicial order awarding parental responsibility back to both parents. Nevertheless, with regard to cases of child abduction it is preferable to maintain joint parental responsibility on a continuing basis by limiting changes in the law governing parental care according to Article 21 EGBGB.
S. 287 of the German Code of Civil Procedure (dZPO) empowers a court to estimate a damage at its discretion and conviction, when the issue of whether or not damages have occurred is in dispute among the parties. The assessment is based on the court’s evaluation of all circumstances. The court, therefore, may decide at its discretion whether or not – and if so, in which scope – any taking of evidence should be ordered as applied for, or whether or not any experts should be heard. Where the law to be applied is foreign law, the question arises whether a German court may refer to s. 287 dZPO as lex fori or whether s. 287 dZPO has to be classified as substantive law preventing the court from estimating the damage when such a rule is unknown by the lex causae. Recently, two German district courts adopted a different view on this issue and, thus, produced different outcomes of two lawsuits with comparable facts. Whereas this question has been in dispute in the German doctrine of international civil procedure for decades, the Rome I/II Regulations set a new legal reference for this discussion: Due to the fact that s. 287 dZPO concerns both the law of assessment of damages and the law of procedure, not only Article 1(3) of each regulation, but also Article 12(1)(c) Rome I and Article 15(c) Rome II Regulation have to be considered. The essay argues that the application of a rule like s. 287 dZPO is neither affected by Articles 12(1)(c)/15(c) nor by Articles 18/22 Rome I/II Regulation and remains applicable pursuant to their Article 1(3).
The decision of the Norwegian Highest Court on 20 December 2012 deals with the question of whether a Norwegian court has jurisdiction over an international dispute, concerning a ship-broker’s commission, between a plaintiff from Singapore and a defendant registered in Norway. This depended upon whether the Norwegian courts should apply the Lugano Convention in a case where the plaintiff is registered in a Third State and the dispute has no connection to the Contracting States, other than the fact that the seat of the defendant is located in the forum. The Norwegian Highest Court refused to apply the Lugano Convention and applied the Norwegian rules on international jurisdiction instead, which include a statutory requirement comparable to the doctrine of forum non conveniens.
In its decision of 29.9.2012 the French Cour de cassation held that a choice of forum clause is void which provides for the exclusive jurisdiction of the courts at a bank’s seat (Luxembourg), but allows the bank to sue its client at any other jurisdiction. The court found that the clause fails to correspond to the sense and purpose of Art. 23 of the Brussels I Regulation; it only binds the client and contains an element of arbitrary (“un element potestatif”) in favor of the bank. Clauses of this kind are frequent in banking contracts and financing transactions. The Cour de cassation uses terminology of French law, which gives rise to the question whether it abides by the principle of autonomous interpretation. Further it appears to introduce into Art. 23 of the Brussels I Regulation an element of appreciation of equal rights of the parties.
The annotated judgement focuses on the question of international jurisdiction for parental responsibility cases. If the habitual residence of a child changes during a pending procedure in Austria, and the new place of habitual residence is in Australia (contracting state to the Hague Convention 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children), Art. 5 no. 2 Hague Convention 1996 shall be applied. Thus, Australian institutions have jurisdiction and contradicting Austrian decisions shall be annulled by Austrian courts. Judgements rendered before the change of the habitual residence remain in force, however, they can be replaced by courts at the child’s new place of habitual residence. Contrary to Art. 5 no. 2 Hague Convention 1996, Art. 8 no. 1 Brussels IIa Regulation stipulates jurisdiction of the Member State court “over a child who is habitually resident in that Member State at the time the court is seized” (perpetuatio fori). Neglecting this provision, the Austrian Supreme Court (OGH) applied Art. 5 no. 2 Hague Convention. Hence, the decision of the appellate court had to be set aside, because jurisdiction was denied without establishing at which date the habitual residence in Australia commenced.
On 10 December 2012, the Supreme People’s Court promulgated the Interpretation on issues concerning the application of the Act of the People’s Republic of China on Application of law in Civil Relations with Foreign Contacts, which came into effect as of 7 January 2013. This Interpretation reconstructs the sources of law of Chinese conflict of laws rules and gives a number of detailed regulations on various specific issues, such as preliminary question, mandantory rules, party autonomy, habitual residence and proof of foreign law. Beginning with a short introduction to the background of these judicial rules this article will deliver a detailed insight into these new rules with moderate analysis.

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Added supplied test data and respective steps.
Removed step 6 under TLV to remove redundancy.
The General Header constraint bullet from TLV step 5 was removed.
Updated TLV step 3 and 4 from ‘Health IT developer-supplied data’ to ‘ONC-supplied data’.
Enable a user to create a summary record formatted in accordance with the standard adopted in §170.205(a)(4) that is document-level tagged as restricted and subject to restrictions on re-disclosure according to the standard adopted in §170.205(o)(1).
Using the ETT: Message Validators – C-CDA R2.1 Validator, the health IT developer downloads the ONC-supplied data instructions through the sender download selections of the “170.315_b7_DS4P Amb” or “170.315_b7_DS4P_Inp” criteria and one of the DS4P instruction documents and executes the download.
Using the ONC-supplied DS4P instruction document downloaded in step 1, a user enters the information as appropriate into the Health IT Module including the DS4P tags and notices.
Privacy and Security Markings Section with Re-disclosure notice.
A summary record document must be submitted for each health IT setting being certified.
Using the ETT: Message Validators – C-CDA R2.1 Validator, the tester uploads the submitted summary record(s) with restrictions (xml file) from step 4 of the SUT, through the sender upload selection of the “Data Segmentation for Privacy –send – Ambulatory” or ” “Data Segmentation for Privacy –send – Inpatient” criteria and executes the upload of the submitted file(s) to the ETT: Message Validators.
The tester uses the Validation Report(s) created by the ETT: Message Validators in step 1 to verify the Health IT Module passes without error in order to confirm that the document is conformant to each of the standards adopted in § 170.205(a)(4).
If the summary record(s) submitted includes unstructured text data elements, the tester uses the ONC-supplied data instructions and the Message Content Report to verify the additional checks for equivalent text for the content of all section level narrative text.
Using the ETT: Message Validators Message Content Report, the tester verifies that the summary record(s) submitted is accurate and without omission using the ONC-supplied data instructions.
Privacy and Security: This certification criterion was adopted at § 170.315(b)(7). As a result, an ONC-ACB must ensure that a product presented for certification to a § 170.315(b) “paragraph (b)” criterion includes the privacy and security criteria (adopted in § 170.315(d)) within the overall scope of the certificate issued to the product.
Technical outcome – The health IT can create a summary record (formatted to Consolidated CDA (C-CDA) Release 2.1) that is tagged at the document-level as restricted and subject to re-disclosure restrictions using the HL7 Implementation Guide: Data Segmentation for Privacy (DS4P), Release 1.


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Investments made by an investor in a company are on the basis of investor confidence in the strong foundation and future of the company as well as the management of the company. The investors strongly believe that the management will not engage in any untoward practice that will not ultimately harm their investment. Such investor confidence was eroded by many corporate scams that came to light in the United States of America during 2001-02. Some of these scams involved companies of repute such as Enron and WorldCom which deprived the shareholders of millions of dollars.
Enron cleverly manipulated its books of account to hide billions of dollars in debt from failed deals and projects. As a result shareholders failed to ascertain the net worth of the company and invested heavily in the company, thereby resulting in a rise of market value of its shares. When the scam was unearthed, shareholders lost colossal amounts of money. The scam came as a big blow to investor confidence all over the world. It highlighted the need for urgent measures to be taken for transparency in companies and revive investor confidence in the corporate world.
With the object to “re-establish investor confidence in the integrity of corporate disclosures and financial reporting”  the US lawmakers enacted the ‘Public Company Accounting Reform and Investor Protection Act’ (in the Senate) and ‘Corporate and Auditing Accountability and Responsibility Act’ (in the House) and commonly called Sarbanes–Oxley Act, Sarbox or SOX. It provided for the inception of the Public Company Accounting Oversight Board (PCAOB), charged with overseeing, regulating, inspecting and disciplining accounting firms in their roles as auditors of public companies. The act also covered issues such as auditor independence, corporate governance, internal control assessment, and enhanced financial disclosure.
Independent directors must comprise a majority of a board.
Listed companies must have an audit committee, a nominating committee and a compensation committee, each comprised solely of independent directors.
For a director to be deemed “independent,” the board must affirmatively determine the director has no material relationship with the listed company (directly or as a partner, shareholder or officer of an organization that has a relationship with the company.
The very purpose behind appointing independent directors is to put checks and balances on each and every activity of the company and bring independence, impartiality and wide experience.
In wake of the financial scandals in the United States of America, the need for measures of corporate governance was felt in India. This was fulfilled by the concept of ‘Independent Director’ (ID) as influenced by the US regulations for Corporate Governance.
It was realized that there is a very significant difference between Indian managements, and managements in the US and the rest of the developed world. More than 75 per cent of large listed Indian companies are family-owned, in which a family has a significant (30 per cent upwards) shareholding in the company.
In a company managed by “owners”, there is a very strong motivation for managements to work for a long-term share price increase, i.e. long-term earnings increase, because the family’s prosperity and reputation ride on the prosperity and ethical dealings of the company.
In a competitive market situation, the real controls on management come from the marketplace. Managements (that is promoters) can’t be unfair to any shareholder, including the small shareholder and expect to go unpunished.
If this were to be true, then the ownership structure of Indian companies should, ipso facto, eliminate agency conflicts. However, decades-long experience points to an even more serious problem, the self-seeking behavior and pursuit of private gains of control. How else can one explain the phenomenon of promoter-run companies falling sick by the day, even as the promoters prosper?
Today, obviously all the value destruction has been forced, perhaps to a great extent by the lenders, on the non-promoter shareholders and even on the employees. Indian company managements, with exceptions, have made an art of self-dealing, self aggrandizement, at the cost of the companies they control and at the cost of non-promoter stakeholders, through a variety of means, such as purchases, sales and diversification.
But whether that is something that the independent directors can successfully encounter needs to be seen. With the promoters having the controlling shareholding and for all practical purposes, it is the promoter who actually appoints the director, independent or otherwise, how independent can the independent director truly be. In the current scenario, this entire regime seems redundant and in fructuous.
The concept of “Independent Director” was first introduced in the Indian corporate arena through the Kumar Manglam Birla Committee, formulated by SEBI, to start up reforms in the area of Corporate Governance. It soon found entry into corporate books, after Clause 49 was incorporated in Listing Agreement by SEBI in 2001. The Birla Report stipulated, “Independent Directors are directors who apart from receiving directors’ remuneration do not have any other material pecuniary relationship or transactions with company, its promoters, its management or its subsidiaries, which in the judgement of the board may affect their independence of judgement”  . In other words the committee defined the relationship of an Independent director with respect to a company. In the background of Enron debacle and sequel to SOX in US (discussed below), Ministry of Company Affairs (MCA, then known as DCA) then constituted, the Naresh Chandra Committee, which gave corporate governance some more thought.
Though the periphery of the committee was restricted to audit and auditors, it brought some new thoughts to institution of IDs. It recommended IDs should not be less than fifty percent of the board. Nominee directors of lending institutions should be considered as independent. It also provided impetus to ID remuneration, training and recommended to exempt them from criminal and civil liabilities i.e. personal liabilities.
In 2003, SEBI constituted the Narayan Murthy Committee with the terms similar to that of Chandra Committee, whose recommendations were incorporated in the Clause 49 by amending it in 2004.
The Murthy report adopted the same definition of IDs as formulated by the Chandra Committee, however, without the condition of nine-year term. It also pondered on the qualification and remuneration of ID and stressed on the need for evaluating the performance of non-executive directors. The committee rejected the recommendation of the previous Chandra Report of treating nominee directors of financial institutions at par with ID  .
Sequel to implementation of Murthy committee recommendation in Clause 49, MCA constituted another committee in December 2004 under the Chairmanship of Shri J. J. Irani, to give Corporate Governance (CG) a legislative stamp by revamping the Companies Act, 1956.The Irani Committee came up with several recommendations in relation to the IDs that were in conflict with the extant Clause 49 and/or the views of the Murthy Committee, e.g. the mandatory requirement of IDs to constitute one-half of the Board be weakened to one-third of the total members of the Board. The present CG framework encompassing the ID is through Clause 49 based on the Murthy Report.
It has been decided in Central Government Vs. Sterling Holiday Resorts (India) Ltd. and Ors  . that “the Board of directors should be strengthened by appointing independent directors”.
is not a partner or an executive of the statutory audit firm or the internal audit firm that is associated with the company, and has not been a partner or an executive of any such firm for the last three years. This will also apply to legal firm(s) and consulting firm(s) that have a material association with the entity.
a. “Management” shall mean personnel of the company who are members of its core management team excluding Board of Directors. Normally, this would comprise all members of management one level below the executive directors, including all functional heads.
IDs are tasked with the protection of the interest of the shareholders. A comparison between the two definitions reveal that the amended definition elucidates on relationships that an independent director must not have with the company since there might arise a possibility of conflict of interest on the part of the ID with respect to the shareholders.
The sense of the definition of independent director is, that a director who disseminates accurate information about the company and maximally facilitates access to information to all shareholders of the company. He shall endeavour to make reasoned judgments on the matters of the company keeping in view the best interests of the company and of the stakeholders. A person must expresses readiness to be appointed as an independent director, and in doing so must work with the rest of the board in promoting company transparency. It is also essential that he must have an even handed attitude towards the interests of all the shareholders and autonomous monitoring of the company’s performance, independent of both the major shareholders and the company management. The difference in the nature of these officers makes it obvious as to why the courts have been imposing varying degrees of responsibility on them.
It has been continuously discussed as to whether the independent directors are required to contribute to the development of corporate strategy, reviewing the performance of management or whether their primary role is to protect the interests of the public shareholders by opposing questionable management policies and establishing adequate controls against unjust enrichment by the promoters and the management. While a business advisory role may sound ideal, it may not be practically achievable as independent directors are not in charge of executive functions, not privy to the day-to-day affairs and in practice discharge their duties only at the meetings of the board.
The Independent Directors have a fiduciary responsibility towards the company and by law the Independent directors may face civil and criminal liability for their acts and omissions. The role of Independent Directors on the Board of a company came under scrutiny once again after the Satyam fiasco where the Serious Fraud Investigation Office (SFIO) had filed seven cases against eleven ex-directors (including IDs) of Satyam. The arrest by the AP government of the Independent Director of Nagarjuna Finance in the alleged involvement of repayment of public deposits worsened the situation.
The Satyam fiasco has raised questions over the responsibilities and liabilities of the IDs. Moreover in the Bhopal gas tragedy verdict the court held Keshub Mahindra, ex-chairman, Union Carbide India, guilty and sentenced him to two years of imprisonment. All this created a fear psychosis in the mind of ID. Following these events, nearly 340 IDs have resigned from their post. Many people are now not advent to accept the post of ID and tarnish their reputation.
Though, the Companies Act, 1956 prescribes civil and criminal liability for directors, it does not make any distinction for independent directors and even such directors can be held to be “officers in default” under Section 5. The institution of independent directors is the creation of regulatory requirements that are laid down by SEBI only. “Cases like Satyam and certain others, wherein the independent directors are facing criminal liability for acts of misfeasance by the board have raised considerable disquiet and nervousness in the independent directors’ community”  .
Past cases, be it cheque bouncing or relating to default in the product of a particular company, reveal that directors of the companies have been unnecessarily prosecuted along with the company.
Though there has been catena of judgments magisterial, other courts have time and again summoned the directors and liability is imputed on them merely on the ground of being an office holder in the company. One such case was Srikanta Dutta Narasimharaja Wodiyar v. Enforcement Officer, Mysore  where offences were committed by companies under Ss. 2, 14, 14 (1A) and 14A of Employees’ State Provident Funds and Miscellaneous Provisions Act, 1952. The question was whether the Director of the company was liable for failure of company to contribute under Employees’ State Provident Funds and Miscellaneous Provisions Act. In this case, the appellant Director of company was not managing the affairs nor in charge of conduct of business. Further, the Act was a welfare legislation to provide benefit to employees as per scheme and needed mandatory implementation and violation of the same attracted strict penal action. The Court held that as per Section 14A and declaration in Form 5-A, directors or managing agents of company will be held responsible for ensuring proper management of affairs of company.
There have been a plethora of cases where the Supreme Court of India and the various High Courts have laid down a certain criteria before imputing the liability on the directors of the company. Since no specific provision has been provided for the liability of Independent Directors they are included under the term directors itself hence same liabilities are attracted as in the case of directors. Some of them have been cited below so as to enable us to draw an inference with regard to the aforementioned issue.
In M/s Pepsi Foods Ltd. v. Special Judicial Magistrate  the Supreme Court upheld that the responsibility lies on the shoulders of the magistrate that he must apply his mind on the facts and the averments made against the directors or the officers of the company and then summon the concerned officers or directors of the company since summoning in a criminal matter is a serious matter and a criminal matter cannot be set into motion as a matter of course.
In UP Pollution Control Board v. M/s Mohan Meaking Ltd. and others  the court took a slightly different stand while ascertaining the liability of directors of companies. In this case an offence was committed by the company under the Water (Prevention and Control of Pollution) Act, 1974. Under this, every person who was in charge of and responsible for conduct of business of company was also made guilty of offences by statutory creation. The Court held that the Chairman or other officers of company who consented to or connived in the commission of offence shall be liable for punishment of offence and the Trial Court was directed to proceed with case in accordance with law.
SMS Pharmaceuticals v. Neeta Bhalla  case is by far the most comprehensive case on director’s liability. It summarizes the law on the issue of director’s liability and the defences available to directors. This case essentially dealt with Ss. 138 and 141 of the Negotiable Instruments Act, 1881. The Supreme Court looked into the question of criminal liability on account of dishonor of cheque which primarily fell on the drawer company. The court held that “It is necessary to specifically aver in complaint under Section 141 that at the time offence was committed, the person accused was in charge of and responsible for conduct of business of company. This is the essential requirement of Section 141 and has to be made in complaint and without the said averment, the complaint requirements of Section 141 cannot be said to be satisfied. The fact that a person is a director of company is not sufficient to make a person liable under Section 141. The director of the company cannot be deemed to be in charge of and responsible to company for conduct of its business. The basic requirement of Section 141 is that person sought to be made liable should be in charge of and responsible for conduct of business of company at relevant time no deemed liability of director in such cases. The Managing director or Joint Managing director admittedly in charge of company are responsible to company for conduct of its business. The holders of such positions in the company become liable under Section 141. The Managing Director or Joint Managing Director, by virtue of the office they hold is included under Section 141. Also, the signatory of cheque which is dishonored is concerned is clearly responsible for incriminating act and will be covered under Sub-section (2) of Section 141″.
The Mumbai High Court in Homi Phiroz Ranina & Ors. V. State of Maharashtra  stated that “there has to be a prima facie case against the directors or officers of the company and it is the responsibility of the complainant that the allegation against the officer or directors must be specifically pleaded and also set out that the concerned accused (officer of the company) was in-charge of day to day and conduct to the business of the company.” The new Companies Amendment Bill 2009 provides for the protection of the Independent Directors from civil and criminal liability if they are not involved in the day to day business of the company.
In K.K.Ahuja Vs.V.K.Vora & Anr  the Supreme Court observed that “the liability arises from being in charge of and responsibility for the conduct of business of the company at the relevant time when the offence was committed and not on the basis of merely holding designation or office in a company”.
In Keki Hormusji Gharda and Ors. V. Mehervan Rustom Irani & Anr  the Supreme Court following the Pepsi Food Ltd. judgment held that in order to impute liability on the officers of the company only on the basis of legal fiction, specific averments in the complaint must be made and the officer cannot be held liable only on the ground that he is holder of the office in the company.
In Pepsico India Holdings Pvt. Ltd. V. Food Inspector and Another  , which involved the question as to what is the criminal liability of the Directors of a company which is said to have committed defaults within the meaning of Section 17 of the Prevention of Food Adulteration Act, 1954 , the Court referring to S.M.S. Pharmaceuticals Ltd.’s case held that “it is well established that in a complaint against a Company and its Directors, the Complainant has to indicate in the complaint itself as to whether the Directors concerned were either in charge of or responsible to the Company for its day-to-day management, or whether they were responsible to the Company for the conduct of its business. A mere bald statement that a person was a Director of the Company against which certain allegations had been made is not sufficient to make such Director liable in the absence of any specific allegations regarding his role in the management of the Company. Thus the appeal was allowed and the High Court judgment was set aside.
Kailashpati Kedia v. State of Maharashtra  .
TP Singh Kalra v. Star Wire India Limited  .
From the above cited cases it can be inferred that a non-executive director cannot be held liable unless his role in the commission of the offence is brought forth. The same also applies to independent directors, though it is conceded that there seems to be some confusion as regards liability of independent directors. The only defence available to directors are that the contravention had taken place without his knowledge or consent and also that he had acted with due diligence.
The need for revamping the Companies Act, 1956 through the Companies Bill was felt in the light of the changes in the economic scenario both domestically and internationally in the past couple of decades. The tone of the Bill was to bring about such changes that would be in consonance with the national and international economic changes and to remove the redundant provisions making the act more compact, easing out the procedural requirements and regrouping the scattered provisions; yet remaining stringent on grounds of good corporate governance and protection of the interest of the investors and public at large.
The definition requires that Boards ascertain that Independent directors should possess integrity and experience.
A noticeable difference in clause 6 of section 132  of the companies Bill is to bar any remuneration other than sitting fee, reimbursement of expenses for participation in the Board and other meetings and profit-related commission, stock options which may be approved by the members.
The Companies Bill was scrutinized by the Standing Committee chaired by Yashwant Sinha which made some recommendations pertaining to responsibilities of Independent directors.
"INDIAN COMPANIES AND INDEPENDENT DIRECTORS." LawTeacher.net. 11 2013. All Answers Ltd. 04 2019 <https://www.lawteacher.net/free-law-essays/company-law/indian-companies-and-independent-directors-law-essays.php?vref=1>.
"INDIAN COMPANIES AND INDEPENDENT DIRECTORS." LawTeacher. LawTeacher.net, November 2013. Web. 22 April 2019. <https://www.lawteacher.net/free-law-essays/company-law/indian-companies-and-independent-directors-law-essays.php?vref=1>.
LawTeacher. November 2013. INDIAN COMPANIES AND INDEPENDENT DIRECTORS. [online]. Available from: https://www.lawteacher.net/free-law-essays/company-law/indian-companies-and-independent-directors-law-essays.php?vref=1 [Accessed 22 April 2019].
LawTeacher. INDIAN COMPANIES AND INDEPENDENT DIRECTORS [Internet]. November 2013. [Accessed 22 April 2019]; Available from: https://www.lawteacher.net/free-law-essays/company-law/indian-companies-and-independent-directors-law-essays.php?vref=1.

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DOE 01 28 90 DOE v. STATE OF HAWAII DEPARTMENT OF EDUCATION June 30, 2003 No. 01-17566.
BIGGS v. TERHUNE WBS JFM CDC June 30, 2003 No. 02-15881.
TOIA v. FASANO June 30, 2003 No. 02-55436.
UNITED STATES v. GUERRERO June 27, 2003 No. 01-10717.
UNITED STATES v. VILLALOBOS June 27, 2003 No. 01-30066.
ALCALA v. WOODFORD June 27, 2003 Nos. 01-99005, 01-99006.
BIANCHI v. RYLAARSDAM June 27, 2003 No. 00-55585.
RAMIREZ v. GALAZA CDC June 27, 2003 No. 00-15994.
GARCIA LOPEZ v. ASHCROFT June 26, 2003 No. 02-70200.
UNITED STATES v. WONG June 26, 2003 No. 02-10070.
UNITED STATES v. SANCHEZ SANCHEZ June 26, 2003 Nos. 02-10005, 02-10006.
NULPH v. COOK June 26, 2003 No. 01-35556.
UNITED STATES v. SHIMODA June 26, 2003 No. 02-10188.
CARPINTERIA VALLEY FARMS, LTD., a California limited partnership, f/k/a KBDR Properties, Ltd., a California limited partnership; Yeager Holdings, Inc., a Colorado corporation; Patrick M. Nesbitt, individually and as Trustee of the Patrick M. Nesbitt June 25, 2003 No. 01-57218.
ROHAN GATES v. WOODFORD June 25, 2003 No. 01-99016.
UNITED STATES v. MORENO MORILLO June 25, 2003 Nos. 01-50293, 01-50305, 01-50310, 01-50477.
UNITED STATES v. CEJA PRADO June 25, 2003 No. 01-30443.
DAVIS v. WOODFORD June 24, 2003 No. 01-99014.
UNITED STATES v. SI June 24, 2003 No. 01-10112.
NAGOULKO v. IMMIGRATION NATURALIZATION SERVICE June 24, 2003 No. 02-70467.
BATZEL v. SMITH June 24, 2003 Nos. 01-56380, 01-56556.
BUSQUETS IVARS v. ASHCROFT June 24, 2003 No. 02-70643.
MENA v. CITY OF SIMI VALLEY June 23, 2003 No. 01-56673.
PERDOMO PADILLA v. ASHCROFT June 23, 2003 No. 01-71454.
ALFORD v. HANER June 23, 2003 No. 01-35141.
UNITED STATES v. GUROLLA June 23, 2003 Nos. 99-50657, 00-50188, 01-50579.
LOPEZ v. JOHNSON June 23, 2003 No. 02-35334.
IN RE: Ann Marie SUMMERS June 20, 2003 No. 02-16146.
ALVAREZ SANTOS v. IMMIGRATION AND NATURALIZATION SERVICE June 20, 2003 No. 01-71478.
COCKETT v. RAY June 20, 2003 No. 02-15078.
KHATCHATRIAN v. CONTINENTAL CASUALTY COMPANY June 19, 2003 No. 02-55916.
UNITED STATES v. BRITT June 19, 2003 No. 02-10306.
HONOLULU JOINT APPRENTICESHIP AND TRAINING COMMITTEE OF UNITED ASSOCIATION LOCAL UNION NO 675 675 v. FOSTER III June 19, 2003 Nos. 01-16596, 01-16641.
SHAVER v. OPERATING ENGINEERS LOCAL 428 PENSION TRUST FUND CISNE June 18, 2003 No. 01-16922.
ZHENG v. ASHCROFT June 18, 2003 No. 02-70193.
FOLTZ v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY June 18, 2003 Nos. 00-35187, 00-35283, 01-35137.
DE LA FUENTE II v. FEDERAL DEPOSIT INSURANCE CORPORATION June 18, 2003 No. 00-71547.
CELAYA v. HALTER June 17, 2003 No. 01-16964.
UNITED STATES v. MENDOZA REYES June 17, 2003 No. 02-30208.
UNION PACIFIC RAILROAD COMPANY v. CALIFORNIA PUBLIC UTI June 17, 2003 Nos. 01-15141, 01-15531.
ZHANG v. DEPARTMENT OF LABOR IMMIGRATION June 12, 2003 No. 02-15559.
FEATURE REALTY INC v. CITY OF SPOKANE June 11, 2003 Nos. 01-36137, 02-35430.
IN RE: INDIAN GAMING RELATED CASES. Chemehuevi Indian Tribe; Elk Valley Rancheria; Hoopa Valley Indian Tribe; Hopland Band of Pomo Indians; Redding Rancheria; Smith River Rancheria June 11, 2003 No. 01-16283.
UNITED STATES v. DAVIS June 11, 2003 No. 01-10739.
SINGLE MOMS, INC., a non-profit corporation; Derilyn Dorscher, individually and on behalf of her minor children; Christine McCrea, individually and on behalf of her minor children; Mary Kay McGrath, individually and on behalf of her minor childre June 10, 2003 No. 02-35361.
CLARK v. MURPHY June 10, 2003 No. 00-16727.
RIVERA v. NATIONAL RAILROAD PASSENGER CORPORATION June 10, 2003 No. 01-16232.
UNITED STATES v. MONTALVO June 9, 2003 No. 01-17046.
BENTON BENTON v. BARNHART June 9, 2003 No. 02-55941.
UNITED STATES v. LAMONT June 9, 2003 No. 00-30220.
UNION OIL COMPANY OF CALIFORNIA v. TERRIBLE HERBST INC June 9, 2003 Nos. 01-16683, 01-17176.
NAVAJO NATION v. James W. Norris; Gayle Norris, Defendants-Appellees, June 9, 2003 Nos. 01-35039, 01-35041.
MEYER v. AMERIQUEST MORTGAGE COMPANY June 9, 2003 No. 01-15970.
UNITED STATES v. BONILLA MONTENEGRO June 9, 2003 No. 02-50141.
BAFFERT v. CALIFORNIA HORSE RACING BOARD June 6, 2003 Nos. 02-55858, 02-56135.
INTERNATIONAL HEALTHCARE MANAGEMENT v. HAWAII COALITION FOR HEALTH June 6, 2003 No. 01-17451.
BITTAKER v. WOODFORD June 6, 2003 No. 02-99000.
VAN SUSTEREN v. JONES June 6, 2003 No. 01-57210.
UNITED STATES v. CABACCANG June 6, 2003 Nos. 98-10159, 98-10195, 98-10203.
UNITED STATES v. PINA JAIME June 6, 2003 No. 01-50063.
HUNT v. PLILER CSP CDC June 5, 2003 No. 01-56963.
HARLESTON v. Jerry C. Harleston; Donna L. Harleston, Appellees. June 5, 2003 No. 02-55770.
UNITED STATES v. VELTE June 5, 2003 Nos. 01-50669, 01-50681.
CHEROSKY v. HENDERSON June 5, 2003 No. 01-35254.
BOURNS INC v. RAYCHEM CORPORATION June 5, 2003 Nos. 01-56245, 01-56246, 01-56252.
HO v. CAREY June 5, 2003 No. 01-16823.
NORITA v. NORTHERN MARIANA ISLANDS June 5, 2003 No. 02-16292.
UNITED STATES v. T.M., Defendant-Appellant. June 4, 2003 No. 02-10189.
VERA VILLEGAS v. IMMIGRATION AND NATURALIZATION SERVICE June 4, 2003 No. 01-70398.
OXYGENATED FUELS ASSOCIATION INCORPORATED v. DAVIS June 4, 2003 No. 01-17078.
UNITED STATES v. CITY OF TACOMA WASHINGTON June 4, 2003 No. 00-35070.
EMPLOYERS INSURANCE OF WAUSAU v. GRANITE STATE INSURANCE COMPANY June 4, 2003 Nos. 01-57231, 02-55024.
UNITED STATES v. SMITH June 4, 2003 No. 01-50006.
SKOKOMISH INDIAN TRIBE, a federally recognized Indian tribe in its own capacity as a class representative and as parens patriae; Denny S. Hurtado; Gordon A. James; Joseph Pavel; Anne Pavel; Maures P. Tinaza; Celeste F. Vigil; Roslynne June 3, 2003 Nos. 01-35028, 01-35845.
ALVAREZ MACHAIN v. UNITED STATES June 3, 2003 Nos. 99-56762, 99-56880.
BRAMBLES v. DUNCAN June 3, 2003 No. 01-55716.
TPS INC v. UNITED STATES DEPARTMENT OF DEFENSE June 3, 2003 No. 00-15144.
SILVERS v. SONY PICTURES ENTERTAINMENT INC June 3, 2003 No. 01-56069.
CERVANTES v. UNITED STATES June 2, 2003 No. 01-56929.
UNITED STATES v. BRANDE June 2, 2003 Nos. 01-50537, 01-50538.

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§ 378-1 Parking lots established and described.
§ 378-3 Marking of parking spaces; length of vehicles.
§ 378-4 Responsibility of vehicle owner.
§ 378-5 Parking within marked spaces.
§ 378-6 Promulgation of rules and regulations.
§ 378-8 Violations and penalties.
Official Map — See Ch. 129.
Parking Authority — See § 71-1G.
Tax Map — See Ch. 150.
Municipal bathing beaches, swim clubs and swimming pools — See Ch. 175.
Beach fires — See Ch. 185.
Beach shelters and tents — See Ch. 192.
Golf courses — See Ch. 325.
Land use and development regulations — See Ch. 348.
Municipal parks — See Ch. 383.
Peace and good order — See Ch. 388.
Streets and sidewalks — See Ch. 450.
Vehicles and traffic — See Ch. 477.
Editor's Note: This ordinance repealed former Ch. 378, Parking Lots and Recreation Areas, adopted 12-11-1973 by Ord. No. 1381, as amended.
Parking Area at Money Island Recreation Area.
Northerly along a line at right angles to course (c) a distance of 31 feet to the point or place of beginning.
The above-described parcel is also known as a portion of Lot 1 in Block 708-11 as shown on the aforesaid Tax Map of the Township of Toms River.
Parking Area No. 1 at Ortley Beach Recreation Area.
Westerly along the northerly line of Fourth Avenue a distance of 40 feet to the point or place of beginning.
The above-described parcel is also known as all of Lot 153 in Block 1011-3 and Lots 160, 161 in Block 1001-2, the westerly 80 feet of Lots 123, 124, 125 in Block 1011-3 and Lots 154-157 in Block 1001-2 and the westerly 40 feet of Lots 120, 121, 122 in Block 1011-3 as shown on the aforesaid Tax Map of the Township of Toms River.
Parking Area No. 2 at Ortley Beach Recreation Area.
Northerly along the easterly line of Ocean Avenue a distance of 190 feet to the point or place of beginning.
The above-described parcel is also known as a portion of Lots 1, 2, 3 and 4 in Block 1017-A5 as shown on the aforesaid Tax Map of the Township of Toms River.
Parking Area No. 3 at Ortley Beach Recreation Area.
Westerly along the northerly line of Ninth Avenue a distance of 13.5 feet to the point or place of beginning.
The above-described parcel is also known as a portion of Lots 1, 2, 3 and 4 in Block 1032-A2 and Lots 1, 2, 3 and 4 in Block 1037-A1 as shown on the aforesaid Tax Map of the Township of Toms River.
Parking Area No. 4 at Ortley Beach Recreation Area.
Westerly along the northerly line of Coolidge Avenue a distance of 20 feet to the point or place of beginning.
The above-described parcel is also known as a portion of Lots 390, 391, 392, 393, 394, 395 and 396 in Block 1045 and Lots 237, 238, 239, 387, 388 and 389 in Block 1049 as shown on the aforesaid Tax Map of the Township of Toms River.
Parking Area No. 1 at Bey Lea Recreation Area.
Northerly along the easterly line of Bay Avenue a distance of 30 feet to the point or place of beginning.
The above-described parcel is also known as a portion of Lot 1 in Block 573 as shown on the aforesaid Tax Map of the Township of Toms River.
Parking Area No. 2 at Bey Lea Recreation Area.
Easterly along the northerly line of Bay Avenue a distance of 35 feet to the point or place of beginning.
The above-described parcel is also known as a portion of Lot 4 in Block 573 as shown on the aforesaid Tax Map of the Township of Toms River.
Parking Area at Silverton Playground.
Westerly along the southerly line of Maine Street a distance of 60 feet to the point or place of beginning.
The above-described parcel is also known as a portion of Lot 7 in Block 233-D as shown on the aforesaid Tax Map of the Township of Toms River.
Parking Area at Riverwood Park Recreation Area.
Easterly along the southerly line of Riverwood Drive a distance of 32 feet to the point or place of beginning.
The above-described parcel is also known as a portion of Lot 39 in Block 298 as shown on the aforesaid Tax Map of the Township of Toms River.
Parking Area at Shelter Cove Recreation Area.
Southerly along a line at right angles to course (e) and parallel to course (b) a distance of 225 feet to the point or place of beginning.
The above-described parcel is also known as a portion of Lot 102 in Block 444 as shown on the aforesaid Tax Map of the Township of Toms River.
Parking Area for Island Beach Recreation Area.
Easterly along the southerly line of Lots 1, 2, 3 and 4 in Block 706-2-B-9, the southerly terminus of Gladney Avenue, the southerly line of Lots 1, 2, 3, 4, 5, 6, 7 and 8 in Block 706-2-B-8, the southerly terminus of River Drive and the southerly line of Lots 1, 2, 3 and 4 in Block 706-2-B-7, said line also being the northerly line of Riviera, a distance of 436 feet to the point or place of beginning.
The above-described parcel is also known as Riviera as shown on the aforesaid Tax Map of the Township of Toms River.
Parking area at Snug Harbor Swim Club.
Northwesterly along the chain link fence a distance of 114 feet, to the point or place of beginning.
Containing 23,908 square feet, more or less.
The above description is and is intended to describe the parking area located at the Snug Harbor Swim Club and is also known as being a portion of Lot 149 in Block 1462-19, as shown on the aforesaid Tax Map of the Township of Toms River.
It shall be unlawful for the owner or operator of any vehicle except vehicles owned by the Township of Toms River to park such vehicle between the hours of 11:00 p.m. and 6:00 a.m. upon the premises hereinabove described, unless prior approval is received from the authority in control of said parking area. Such approval shall not be unreasonably withheld.
Individual parking spaces shall be outlined by appropriate markings in said areas, and no vehicle or vehicle and attached trailer exceeding 20 feet in length shall be parked in said areas.
It shall be unlawful for any person to cause, allow, permit or suffer any vehicle registered in his or her name to be parked in violation of the provisions of this chapter.
It shall be unlawful to park any vehicle across any line or marking designating a parking space or to park such vehicle in any way that the same will not wholly be within a parking space as designated by said markings.
Reasonable rules and regulations to ensure efficient and orderly usage of said areas shall be promulgated by the authority in control, which rules and regulations may provide for reserved parking, in which event vehicles permitted to be parked in reserved parking spaces shall be properly identified by use of a decal containing a facsimile of the Township Seal.
Easterly along the southerly line of Lot 13 and the northerly line of Lot 39 in Block 298 a distance of 247 feet more or less to the point or place of beginning; containing 1.36 acres more or less.
The above description is and is intended to describe a parcel of land being approximately 50 feet by 873 feet, 25 feet by 247 feet and 25 feet by 380 feet to be designated as a no-parking zone.
Any violation of this chapter shall be punishable by a fine not to exceed $50 or imprisonment not to exceed five days, or both.


BALLARD v. THE STATE. SOUN v. THE STATE.
JUDGES: MELTON, Justice. All the Justices concur.
Following a joint jury trial, Chaz Ballard and Singlee Soun were found guilty of felony murder and several other offenses in connection with the shooting death of James Johnson.1 In these consolidated appeals, Ballard asserts, among other things, that the evidence presented at trial was insufficient to support his verdict and that his trial counsel was ineffective (Case No. S15A40463). Soun contends, primarily, that the trial court erred in its jury instructions (Case No. S15A0464). For the reasons that follow, we affirm in both cases.
1. The (1) evidence, viewed in the light most favorable to the jury’s verdict, shows that, on the night of February 23, 2011, Soun and Ballard met Johnson in room 220 of an Econo Lodge hotel to sell Johnson fake methamphetamine. The day before this meeting, Johnson had pulled approximately $10,000 out of his front pocket to pay Ballard $2,000 to purchase marijuana. At the time of the Econo Lodge meeting, Soun had a rifle with him and Ballard brought a pistol. When Johnson discovered that the methamphetamine that Soun and Ballard were going to sell to him was fake, Soun and Ballard shot Johnson several times with each of their guns, killing him.
The front desk clerk at the hotel received reports of shots being fired on the second floor of the hotel, and the clerk then observed, via surveillance camera, Soun and Ballard exit room 220 where they had shot Johnson. Soun exited holding a rifle in one hand, and Ballard exited while putting the pistol in his waist band. Ballard also tried to cover his face with his shirt to hide from the surveillance camera. The two then fled in Ballard’s truck. After the shooting, only $2,438 was found in Johnson’s duffle bag. The remaining sum of over $5,000 that ostensibly should have remained (based on the $10,000 that Johnson had displayed the day before and the $2,000 that he had previously paid to Ballard for marijuana) was never recovered. On the night of the shooting, Ballard admitted to a friend that he had gone to the hotel to “hit a lick,” or commit a robbery. Investigators found shell casings in the room from the automatic rifle and the pistol used to kill Johnson. A water bottle was also found in room 220 with Soun’s DNA on it.
The evidence presented at trial was sufficient to enable a rational trier of fact to find Ballard guilty of all of the crimes of which he was convicted beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979).
2. Ballard contends that the (2) trial court erred by denying his motion to sever his trial from Soun’s. However, the record reveals that Ballard never moved to have his trial severed from Soun’s. Only Soun moved to have his trial severed from Ballard’s, and Ballard never joined in this motion. Accordingly, Ballard “will not be heard to complain of the trial court’s denial of a co-defendant’s motion to sever” in which he did not join. Way v. State, 239 Ga. 316, 317 (2) (236 SE2d 655) (1977).
In any event, however, even if Ballard had joined in Soun’s motion, the trial court’s denial of the motion still would have been proper, as explained more fully in Division 8, infra.
3. Ballard argues that the (3) trial court erred in its instructions to the jury. Specifically, he claims that the trial court improperly commented on the evidence through its instruction that a person is not justified in using force for self-defense if that person is “fleeing after the commission or attempted commission of a felony of aggravated assault or criminal attempted sale of a non-controlled substance as a controlled substance;” and further erred by failing to give a complete charge on justification that included, among other things, the idea that Ballard had no duty to retreat. However, a review of the charge in its proper context shows that the trial court gave the jury a proper statement of the law advising them that if they found that Ballard was fleeing after committing a felony, justification would not be an available defense for Ballard. See OCGA § 16-3-21 (b) (2) (Self-defense is inapplicable where the accused is “attempting to commit, committing, or fleeing after the commission or attempted commission of a felony”). See also Woodard v. State, ___ Ga. ___ (3) (b), 2015 Ga. LEXIS 199 (Case No. S14A1532, decided March 27, 2015), overruling Heard v. State, 261 Ga. 262 (403 SE2d 438) (1991). This was not a comment on the evidence, and the trial court was not implying in any way that an actual drug sale had taken place. Indeed, the trial court made clear that its instruction was only given in order to allow the jury to determine if self-defense was applicable in light of the specific facts and circumstances surrounding Johnson’s shooting. Furthermore, the (4) trial court’s instruction thoroughly covered the law of justification and self-defense such that all of Ballard’s defenses could be properly considered, and any lack of additional specific instructions by the trial court on the duty to retreat were unnecessary. DeLeon v. State, 289 Ga. 782, 783-784 (4) (716 SE2d 173) (2011) (where jury “instructed on the law of justification and self-defense, any failure to instruct the jury on the lack of a duty to retreat does not require reversal”) (citation omitted). There was no error.
4. Ballard’s argument that the (5) trial on his felon-in-possession-of-a-weapon charge should have been bifurcated from his felony murder charge is meritless. Here, Ballard’s felon-in-possession charge was directly related to one of his felony murder charges, as it served as the predicate felony for that felony murder charge. A motion to bifurcate “should be denied where the count charging possession of a firearm by a convicted felon might serve as the underlying felony supporting a felony murder conviction.” (Citations omitted.) Poole v. State, 291 Ga. 848, 850 (2) (734 SE2d 1) (2012).
[t]here is a distinction between suppression of exculpatory evidence and a failure to disclose such evidence … [and] “[w]e have indicated that the holding of the United States Supreme Court in Brady does not extend so far as to require the prosecution to turn over to the defense criminal records of state’s witnesses. [Cit.]” Carter v. State, 252 Ga. 502, 506 (6) (315 SE2d 646) (1984). … The record contains no indication that [Ballard] was unable to ascertain the details of [Johnson’s and the state’s witnesses’] criminal histor[ies] … [and] Brady ” ‘does not impose an affirmative obligation on the prosecution to seek out information for the defense, even if such information is more accessible to the prosecution than to the defense.’ ” Sears v. State, 268 Ga. 759, 762 (3) (493 SE2d 180) (1997).
Adams v. State, 271 Ga. 485, 487-488 (3) (521 SE2d 575) (1999). Ballard’s contention therefore fails.
6. Finally, Ballard argues that his trial counsel was ineffective for: (a) failing to stipulate to Ballard’s convicted felon status, (b) failing to obtain a court order regarding Ballard’s convicted felon status, (c) failing to redact the indictment to exclude Ballard’s previous charges, (d) failing to redact documents admitted into evidence that contained information on Ballard’s previous first offender status, (e) failing to seek a limiting instruction, (f) failing to introduce evidence of the victim’s criminal background, (g) failing to request the criminal records of the State’s witnesses, (h) failing to object to testimony based on photo and video evidence, and (i) failing to object to testimony establishing that the victim was unarmed.
In order to succeed on his claim of ineffective assistance, [Ballard] must prove both that his trial counsel’s performance was deficient and that there is a reasonable probability that the trial result would have been different if not for the deficient performance. Strickland v. Washington, 466 U. S. 668 (104 SCt 2052, 80 LE2d 674) (1984). If an appellant fails to meet his or her burden of proving either prong of the Strickland test, the reviewing court does not have to examine the other prong. Id. at 697 (IV); Fuller v. State, 277 Ga. 505 (3) (591 SE2d 782) (2004). In reviewing the trial court’s decision, ” ‘[w]e accept the trial court’s factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts.’ [Cit.]” Robinson v. State, 277 Ga. 75, 76 (586 SE2d 313) (2003).
Wright v. State, 291 Ga. 869, 870 (2) (734 SE2d 876) (2012).
(a) Pretermitting the question whether (7) trial counsel’s decision not to stipulate to Ballard’s prior convicted felon status amounted to deficient performance, Ballard cannot show prejudice. Indeed, while it is true that a trial court may abuse its discretion when it fails to allow a defendant to stipulate to his or her convicted felon status, such abuse of discretion only occurs where “(1) a defendant’s prior conviction is of the nature likely to inflame the passions of the jury and raise the risk of a conviction based on improper considerations, and (2) the purpose of the evidence is solely to prove the defendant’s status as a convicted felon.” Ross v. State, 279 Ga. 365, 368 (2) (614 SE2d 31) (2005). Here, Ballard’s prior convictions for aggravated assault and burglary with the intent to commit aggravated assault were “not of the nature likely to inflame the passions of the jury.” See Hill v. State, 290 Ga. 493, 498 (6) (722 SE2d 708) (2012) (a prior aggravated assault conviction used to establish a defendant’s status as a convicted felon is “not of the nature likely to ‘inflame the passions of the jury,” even where the crimes for which the defendant was being tried involved felony murder and aggravated assault). Furthermore, any error resulting from Ballard’s failure to stipulate to his convicted felon status did not result in prejudice to him in light of the overwhelming evidence of his guilt. See id. at 498 (6).
(b) Ballard’s argument regarding counsel’s failure to obtain a stipulation regarding his convicted felon status fails for the same reasons as those set forth in Division 6 (a), supra.
(c) (8) Trial counsel’s failure to redact the indictment to eliminate references to Ballard’s prior convictions also could not amount to ineffective assistance, as “[p]roof of [Ballard’s] previous conviction was a necessary element of the state’s proof” that Ballard was a convicted felon in possession of a firearm. See Prather v. State, 247 Ga. 789, 790 (2) (279 SE2d 697) (1981). The trial court instructed the jury that the indictment was not evidence, and, as stated previously, trial counsel’s failure to stipulate to Ballard’s convicted felon status, which forced the State to have to prove Ballard’s convicted felon status, did not amount to ineffective assistance in this case.
(d) Similarly, the (9) fact that trial counsel did not redact an order that referenced Ballard’s first offender status being revoked did not amount to ineffective assistance. Here, in order for the State to show that Ballard was a convicted felon, the State needed to present evidence that Ballard’s first offender status had been revoked with respect to the counts of the former indictment to which he had pled guilty. See Davis v. State, 269 Ga. 276, 277 (2) (496 SE2d 699) (1998) (“A first offender’s guilty plea does not constitute a conviction”). Trial counsel’s choice to force the State to meet its burden of showing that Ballard was a convicted felon did not amount to ineffective assistance under the facts of this case.
(e) Here, “the trial court gave instructions concerning the limited use of [Ballard’s] prior felony conviction. Thus, trial counsel’s failure to request a limiting instruction had no effect on the outcome of the trial.” Lee v. State, 280 Ga. 521, 522 (2) (b) (630 SE2d 380) (2006).
The failure of trial counsel to employ evidence cannot be deemed to be “prejudicial” in the absence of a showing that such evidence would have been relevant and favorable to the defendant. Because [Ballard] failed to make any proffer of the uncalled witnesses’ testimony, it is impossible for [him] to show there is a reasonable probability the results of the [trial] proceedings would have been different. It cannot possibly be said that the additional witnesses would have testified favorably to [Ballard].
(Citations and punctuation omitted.) Goodwin v. Cruz-Padillo, 265 Ga. 614, 615 (458 SE2d 623) (1995). This claim of ineffective assistance therefore must fail.
(g) (11) Ballard presented no evidence at the motion for new trial hearing of any criminal history of any of the State’s witnesses. He therefore cannot show prejudice from his trial counsel’s failure to obtain such information. Goodwin, supra.
(h) (12) Trial counsel testified at the motion for new trial hearing that she did not object to testimony describing the video surveillance footage, because she did not want to “draw extra attention to it.” “Reasonable decisions as to whether to raise a specific objection are ordinarily matters of trial strategy and provide no ground for reversal.” (Citation omitted.) Anderson v. State, 285 Ga. 496, 499 (3) (a) (678 SE2d 84) (2009). Trial counsel’s strategic decision was reasonable here, especially in light of the fact that (1) other testimony placed Ballard at the crime scene; (2) Ballard himself claimed that he was at the crime scene acting in self-defense; and (3) drawing extra attention to the video showing Ballard entering or leaving the hotel room where the crime took place could have drawn attention away from the theory that Ballard was only acting in self-defense while he was inside the hotel room.
(i) Ballard claims that his (13) trial counsel was ineffective for failing to object on “character evidence” grounds to a witness’ testimony that he had “[n]ever see[n] [the victim] with a gun” and had not “ever known him to have a gun.” However, the testimony in question has nothing to do with the victim’s character, as the physical observation of a person having or not having a gun says nothing about the character of person who has or does not have that gun. Indeed, the testimony here only speaks to this particular witness’ observations about whether he had ever seen the victim with a gun, and nothing more. Because an objection on character evidence grounds would have been misplaced, it cannot be said that trial counsel was ineffective for failing to make such an objection. Hayes v. State, 262 Ga. 881, 884 (3) (c) (426 SE2d 886) (1993) (“Failure to make a meritless objection cannot be evidence of ineffective assistance”).
7. The evidence outlined in Division 1, supra, was (14) sufficient to enable a rational trier of fact to find Soun guilty of all of the crimes of which he was convicted beyond a reasonable doubt. Jackson v. Virginia, supra.
(1) whether the number of defendants will confuse the jury as to the evidence and the law applicable to each defendant; (2) whether, despite cautionary instructions from the court, there is a danger that evidence admissible against one defendant will be improperly considered against another defendant; and (3) whether the defenses of the defendants are antagonistic to each other or to each other’s rights of due process.
(Footnote omitted.) Id. at 687-688 (2). Furthermore, “[i]t is incumbent upon the defendant who seeks a severance to show clearly that he will be prejudiced by a joint trial, and in the absence of such a showing, the trial court’s denial of a severance motion will not be disturbed.” (Citations omitted.) Rhodes v. State, 279 Ga. 587, 589 (3) (619 SE2d 659) (2005).
Here, Soun cannot show prejudice. Indeed, Soun was only tried with one co-defendant, and “[w]ith only two defendants there was virtually no likelihood that the jury would confuse the evidence or the law, or that the evidence against one defendant would be considered against the other.” Callendar v. State, 275 Ga. 115, 116 (2) (561 SE2d 113) (2002); see also Linares v. State, 266 Ga. 812, 815 (471 SE2d 208) (1996) (finding no issue of juror confusion when two co-defendants were tried together and presented antagonistic defenses). In this regard, the trial court gave a limiting instruction to the jury to make clear that, “[s]ometimes evidence is admitted for a limited purpose or against some parties and not others … [and that this] evidence may be considered by the jury for the sole issue or purpose against those parties to which the evidence is limited and not for any other purpose.” The jury is presumed to have heeded this instruction. See Moss v. State, 275 Ga. 96 (9) (561 SE2d 382) (2002). The fact that Soun and Ballard had antagonistic defenses did not, by itself, warrant the grant of a separate trial for Soun. See Linares, supra, 266 Ga. at 815. We find no error.
9. For the same reasons stated in Division 4, supra, the trial court did not err in refusing to bifurcate Soun’s felon-in-possession-of-a-weapon charge from his felony murder charge.
If you find that [Mr. Soun] grabbed the rifle … when and how he says he did, and you find that the conduct was justified, this is a defense to prosecution for any crime based on that conduct, as long as you the jury find that the conduct stands upon the footing of reason and justice.
(Emphasis supplied.) Soun’s defense was based on the idea that he was justified in taking the rifle from Ballard, not because Soun had anything to do with shooting Johnson, but because he needed it to possibly protect himself from Ballard after Ballard had shot Johnson. Accordingly, Soun’s specific defense was covered by the very charge that he requested and that was given by the trial court, and any alleged error by the trial court from its failure to include language on this same defense beyond the language provided by Soun was induced by Soun himself. Under such circumstances, this alleged error cannot provide a basis for reversal, even under a plain error standard. See Shaw v. State, 292 Ga. 871, 873 n. 3 (742 SE2d 707) (2013) (“[E]ven where plain error appears, reversal is not warranted if the error was invited by the appellant. Shank v. State, 290 Ga. 844, 845 (2) (725 SE2d 246) (2012)”).
To the extent that Soun argues, like Ballard, that the trial court improperly commented on the evidence through its jury charge on justification, that argument fails for the same reasons stated in Division 3, supra.
Judgments affirmed. All the Justices concur.
1 On February 13, 2013, Soun and Ballard were each indicted for four counts of felony murder, three counts of aggravated assault, one count of possession of a firearm by a convicted felon, and four counts of possession of a firearm during the commission of a felony. Following a February 25-March 1, 2013, joint trial, the jury found Ballard guilty of two counts of felony murder (predicated on aggravated assault with a handgun and aggravated assault with intent to rob), two counts of aggravated assault (with a handgun and with intent to rob), possession of a firearm by a convicted felon, and two counts of possession of a firearm during a felony; and the jury found Soun guilty of three counts of felony murder (predicated on aggravated assault with a rifle, aggravated assault with intent to rob, and possession of a firearm by a convicted felon), two counts of aggravated assault (with a rifle and with intent to rob), possession of a firearm by a convicted felon, and two counts of possession of a firearm during a felony. The defendants were acquitted on the remaining charges. The trial court sentenced Ballard to life imprisonment without the possibility of parole for felony murder based on aggravated assault with a handgun, twenty consecutive years for aggravated assault with intent to rob, five consecutive years for possession of a firearm by a convicted felon, and five consecutive years for possession of a firearm during the commission of a felony. The remaining aggravated assault count was merged with the felony murder conviction for sentencing purposes, and the trial court vacated the remaining felony murder count for sentencing purposes. The trial court sentenced Soun to life without parole for felony murder based on aggravated assault with a rifle, twenty consecutive years for aggravated assault with intent to rob, five consecutive years for possession of a firearm by a convicted felon, and five consecutive years for possession of a firearm during a felony. The trial court merged the remaining aggravated assault count with the felony murder conviction for sentencing purposes, and vacated the remaining felony murder counts and the remaining possession of a firearm during a crime count. Soun filed a motion for new trial on April 12, 2013, which he amended on January 14, 2014 and January 23, 2014. Ballard filed his own motion on April 8, 2013, which he amended on January 17, 2014, February 28, 2014, and April 22, 2014. The trial court denied both motions on May 29, 2014. Soun’s notice of appeal was filed on June 18, 2014 and Ballard’s on June 13, 2014. Both cases were docketed to the January 2015 Term of this Court and submitted for decision on the briefs.