Case BriefsSupreme Court

Supreme Court: In an interesting case, where a man was convicted for murder of his younger brother, the bench of Sanjiv Khanna* and Bela M. Trivedi, JJ has converted the conviction from Section 302 to Part I of Section 304 of the IPC after holding that to discharge the burden the accused may rely upon the case of the prosecution and the evidence adduced by the prosecution in the court.

In the case at hand, the appellant was convicted for killing his younger brother. He had then himself went to the police station and confessed the crime, albeit, the confession is inadmissible as proof of confession is prohibited under Section 25 of the Evidence Act, 1872. The weapon i.e. the pick-axe and the blood stained shirt of the appellant were recovered based on the appellant’s disclosure.

According to the testimonies of various family members and the neighbours, the deceased was an alcoholic who barely interacted with the family, and used to torment, abuse and threaten the appellant. This fact was relied upon by the prosecution to establish the motive. On the night of the occurrence, the deceased had consumed alcohol and had told the appellant to leave the house and if not, he would kill the appellant. The appellant had also tried to commit suicide.

In is in the light of these facts, that the Supreme Court explained that,

“The prosecution must prove the guilt of the accused, that is, it must establish all ingredients of the offence with which the accused is charged, but this burden should not be mixed with the burden on the accused of proving that the case falls within an exception. However, to discharge this burden the accused may rely upon the case of the prosecution and the evidence adduced by the prosecution in the court.”

Hence, applying the prosecution version in the appellant’s defence, it was noticed that there was sudden loss of self-control on account of a ‘slow burn’ reaction followed by the final and immediate provocation. There was temporary loss of self-control as the appellant had tried to kill himself by holding live electrical wires. Therefore, it was held that the acts of provocation on the basis of which the appellant caused the death of his brother, were both sudden and grave and that there was loss of self-control.

Applying the provocation exception, the Court converted the conviction of the appellant from Section 302 to Part I of Section 304 of the IPC. Further, considering that the appellant has already suffered incarceration for over 10 years, as he has been in custody since 27th September, 2011, the Court modified the sentence of imprisonment to the period already undergone. In addition, the appellant would have to pay a fine of Rs. 1,000/- and in default, will undergo simple imprisonment for a period of six months. On payment of fine or default imprisonment, the appellant will be released forthwith, if not required to be detained for any other case

[Dauvaram Nirmalkar v. State of Chhattissgarh, 2022 SCC OnLine SC 955, decided on 02.08.2022]


*Judgment by: Justice Sanjiv Khanna

High Court Round UpLegal RoundUp

Allahabad High Court

Disability

In a case where an employee of Central Bank of India petitioned to be exempted from routine transfers due to permanent disability of wife, Rajesh Singh Chauhan, J. held that the transfer is an exigency/ incidence of service and no courts are ordinarily interfered with the transfer orders but if such transfer may be avoided for any specific compelling reason and that reason is unavoidable, the Competent Authority being model employer should consider such condition sympathetically. Read more

Right to Education

The Division Bench of Rajesh Singh Chauhan and Subhash Vidyarthi, JJ., dealt with a case where the admission of a class VIII student was rejected by the school authorities without proper information being given to the parents on time, so that such student could get his admission in any other institution inasmuch as to receive proper education is a Fundamental Right enshrined under Article 21-A of the Constitution of India. Read more

Manual Scavenging

The Division Bench of Manoj Kumar Gupta and Chandra Kumar Rai, JJ., took up suo motu cognizance and directed the authorities concerned to take concrete measures for implementation so that some change is discernible in the working conditions of the sanitary workers in line with Standard Operating Procedure (SOP) to be followed in cleaning sewers and septic tanks. Read more

Andhra Pradesh High Court

Habeas Corpus

A Division Bench of Tarlada Rajashekhar Rao and K Manmadha Rao, JJ., directed the State authorities to produce the detenu-wife before Court as couple is major and have agreed to live together. Read more

Bombay High Court

POCSO

The Division Bench of Prasanna B. Varale and S.M. Modak, JJ. dismissed an FIR lodged under Section 376 of the Penal Code, 1860, and Section 4 of the POCSO Act, observing that the conflict had been addressed and the girl and boy intended to marry. Read more

Personal Liberty

A.S. Chandurkar and Amit Borkar, JJ., stated that the right to travel abroad is spelled out in Article 21 of the Constitution and that the provisions of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993, do not implicitly confer such powers on the Debt Recovery Tribunal to restrain a person from travelling abroad. Read more

Extra-Marital Affair

The Division Bench of Sunil B. Shukre and G.A. Sanap, JJ., granted an application to quash an FIR filed under Section 306, 34 Penal Code. Read more

Advertisement/ Qualification

The petitioners contested a School Tribunal judgement ordering them to reinstate the respondent/employee. In overturning the Tribunal’s decision, the Bench of Rohit B. Deo, J. clarified that job advertisements are not limited to reserved positions. Under the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977, it is also obligatory to advertise the positions in the open category. Read more

Motor Vehicles Act, 1988

S.G. Mehare, J., authorised an appeal against the July 30, 2001 order of the Commissioner for Workmen’s Compensation and Judge Labour Court. Read more

Burden of Proof

The appeal against the appellant’s conviction for the offence is punishable under section 302 of the Penal Code, 1860, whereby he was sentenced to suffer R.I. for life and a fine of Rs. 5,000, was permitted by the Division Bench of Sadhana S. Jadhav and Milind N. Jadhav, JJ. Read more

Copyright Infringement

RI Chagla J. awarded an ad-interim injunction in favour of the “Janhit Mein Jaari” film’s creators and ordered the defendants to take down infringing links right away. Read more

Hindu Marriage Act

Bharati Dangre, J. dismissed a writ petition brought by the petitioner-husband against maintenance order towards his daughter stating that an unmarried major Daughter is entitled for maintenance from her father and glossy life on Instagram do not prove independent and sufficient income to exempt petitioner’s responsibility/liability. Read more

Consent vis a vis Sexual Relationship

Bharati Dangre, J. rejected an anticipatory bail application which was filed apprehending arrest for the offences punishable under Sections 376(2)(n), 376(2)(h) and 417 of the Penal Code, 1860 and held that merely sharing friendly relationship with a girl does not permit a boy to take her for granted and construe it as her consent to establish physical relationship. Read more

Departmental Proceedings

The Division Bench of S.B. Shukre and G. A. Sanap, JJ. sets aside an FIR for the offences punishable under Sections 13(1)(c)(d) and 13(2) of the Prevention of Corruption Act, 1988 in the matter of departmental proceedings being based on identical/similar charges as criminal proceedings cannot be proceeded with if accused was exonerated in departmental proceedings based on identical/similar charges. Read more

Calcutta High Court

Gratuity/ Pension

Amrita Sinha, J. dismissed a petition filed by an Assistant Teacher who retired on October 31, 2020, concerning the delayed payment of the gratuity and arrear pension amount. Read more

Dispute Bill

Sabyasachi Bhattacharyya, J. granted a petition directing CESC Ltd. to restore the petitioner’s electricity supply unconditionally. Read more

Peaceful Procession

Shampa Sarkar, J. heard a petition alleging that the Commissioner of Police, Kolkata, denied Utshi United Primary Teachers Welfare Association permission to march peacefully from Raja Subodh Mullick Square Park to Rani Rashmoni Avenue on June 11, 2022. Read more

Reasonable Opportunity

The Division Bench of Debangsu Basak and Bibhas Ranjan De, JJ. dismissed an appeal directed against the order dated 09-02-2022, holding that, despite the assessee receiving additional evidence regarding the quantum of tax liability after the conclusion of the order or refund, there was no material irregularity in the order of refund warranting interference under Article 226 of the Indian Constitution. Read more

Child Trafficking

Ananya Bandyopadhyay and Joymalya Bagchi, JJ., the division bench, denied a request for bail in a human trafficking case. The report was read in court, and it said that on June 14, 2022, psychological treatment was provided to trafficking victims. A request has been submitted for the lawful award of interim compensation. To provide the aforementioned witnesses with the security they need, measures were taken. Read more

Prostitution

A revisional application was filed for the quashing of the proceedings under Sections 3, 4, 5, 7, and 18 of the Immoral Traffic (Prevention) Act, 1956 (commonly referred to as the “I.T.(P) Act”) read with Section 120-B of the Penal Code, 1860,” and also for the setting aside of the order by which the Additional Chief Metropolitan Magistrate took cognizance against the current petitioner. This application was granted by Judge Ajoy Kumar Mukherjee. Read more

Victim Compensation Scheme

After hearing a petition, Moushumi Bhattacharya, J. gave instructions about the non-payment of victim compensation following a decision made by the Secretary of the District Legal Services Authority setting the compensation amount at Rs. 1,50,000/-. Read more

Arbitration

The Arbitral Tribunal’s award was affirmed by Shekhar B. Saraf, J., who also ruled that the award holder should be held liable for the full sum, plus interest and additional fees. Read more

Delhi High Court

Arbitration & Conciliation

While addressing the ineligibility of an arbitrator to be appointed, Vibhu Bhakru, J., elaborated on the expression ‘close family member’ and the likelihood of bias. Read more

Dishonour of Cheque

Asha Menon, J. refused to allow a petition filed under Section 482 CrPC seeking quashing of summoning order passed by the Metropolitan Magistrate, Patiala House Courts in a complaint filed by the respondents 1 and 2 against the petitioner under Section 138 read with Section 142 of the Negotiable Instruments Act, 1881. Read more

Income Tax Act

The Division Bench of Manmohan and Manmeet Pritam Singh Arora, JJ., expressed that, merely because there was a delay of one day in asking for an adjournment, the assessee living outside India cannot be denied his right to file an objection to Show Cause notice. The present petition had been filed challenging the order passed under Section 148 A (d) of the Income Tax Act, 1961, and the notice was passed under Section 148 of the Act. Read more

A Division Bench of Manmohan and Manmeet Pritam Singh Arora JJ. dismissed the petition and ordered the respondents to refund the amount adjusted more than 10% of the disputed tax demands for the Assessment Year 2017-18 to the petitioner. Read more

Arbitration

While hearing an application against an arbitral tribunal’s award, Vibhu Bakhru, J. ruled that the arbitral tribunal could not rewrite or examine the parties’ agreement. Read more

FATF/ Economic Security

The Division Bench of Mukta Gupta and Mini Pushkarna, JJ., stated that the simple smuggling of gold without any link to a danger to the country’s economic security or monetary stability is not a “terrorist crime” under the Unlawful Activities (Prevention) Act. Read more

Police Post

In a case where a police officer was injured after being attacked with an illegal weapon outside of the police station, Talwant Singh, J., stated that a police station is a place where people go to lodge complaints about disputes among themselves, not a place where public servants are supposed to be attacked. Read more

Trademark Infringement

Prathiba M. Singh, J. granted Colorbar Cosmetics Private Limited an ad interim ex parte injunction, restraining the Canada-based Faces Cosmetics India Private Limited from manufacturing, selling, and offering for sale cosmetics and other products under the trademark “Velvet matte.” Read more

Jyoti Singh, J. granted an ex-parte injunction and noted that a stricter approach is required in cases of medicinal preparations and products because any confusion between the respective medicinal products is likely to have a disastrous effect on public health. Read more

Dinesh Kumar Sharma J. granted an ex parte injunction to Voltas Limited restraining a website from using their registered trademark and logo VOLTAS and block and suspend the website. Read more

Matrimonial Offences

Swarana Kanta Sharma, J., stated that cases under Section 376 of the Penal Code, 1860 should not be quashed and should not be considered a crime against the society at large. However, in unusual circumstances, where the complainant states that her future depends on the quashing of the FIR and adds that the rape was not committed upon her, it would be in the interest of justice to quash the FIR. Read more

Illegality

Geetanjali Goel, J. upholds the discharge of Delhi CM and others in the Anshu Prakash assault case, finding no reason to interfere with the Trial Court’s impugned order and dismissing the petition as without merit. Read more

Adjudication

A Division Bench of Manmohan and Manmeet Pritam Singh Arora, JJ., dismissed the petition and ordered a new adjudication since the Assessing Officer did not examine any of the representations and contentions. Read more

Organ Donation

Yashwant Verma, J. dismissed the petition and directed the respondent hospital to process the petitioner’s application and request following the law. Read more

POCSO

A Division Bench of Mukta Gupta and Mini Pushkarna, JJ., maintained the assailed conviction decision, citing the accused’s terrible act of rape on a four-year-old child from his close family. Read more

Income Tax

Jyoti Singh and Anoop Kumar Mendiratta, JJ., of the Division Bench, struck aside notices addressed to a deceased assessee despite being informed of his death by his relatives. Read more

Injunction

Pratibha M Singh, J. issued directives to domain name registrars whose offices are located outside of India and whose details are not disclosed so that they do not avoid injunction orders issued by Indian courts. Read more

Compensation

Manoj Kumar Ohri J. dismissed the petition because the employer-employee relationship was established before the court by a witness and strict rules of evidence are not applicable in such cases. Read more

Controller of Patents

The applicant did not intend to abandon, the court should be lenient in its approach if it is convinced that the patent agent made a mistake and the applicant can demonstrate full diligence, said Pratibha M. Singh J., who also excused the delay in filing the applicant’s reply to the First Examination Reports. Read more

Foreign National Reservation

The refusal of admission by AIIMS and PGIMER was supported by Sanjeev Narula, J., because PGIMER did not promote seats for foreign nationals simply because it mentioned the requirements for admission as a foreign citizen in its prospectus. Read more

Mandamus / Judicial Review

Table tennis players Swastika Ghosh and Manush Shah, who had challenged the decision made by the Table Tennis Federation of India on the athletes who will represent India in the Commonwealth Games in 2022, were refused relief by Dinesh Kumar Sharma, J. Read more

Gujarat High Court

Wages

Biren Vaishnav, J. dismissed a petition filed by a petitioner who was dissatisfied with the award dated 14-02-2020, which directed the petitioner-State of Gujarat to pay the respondent-sweeper salary for four hours of work per day, plus arrears from the date of reinstatement. Read more

Rape/Sodomy

Biren Vaishnav, J. dismissed a petition filed by a petitioner who was dissatisfied with the award dated 14-02-2020, which directed the petitioner-State of Gujarat to pay the respondent-sweeper salary for four hours of work per day, plus arrears from the date of reinstatement. Read more

Family Law

The Division Bench of Vipul M. Pancholi and Rajendra M. Sareen, JJ., rejected a plea brought by the father under Article 226 of the Indian Constitution seeking custody of his daughter. Read more

Arms Act

The licence under the Arms Act of 1959 (“the Arms Act”) for self-defense was rejected by the District Magistrate, and the Additional Secretary Home Department of the State Government upheld the previous ruling in an appeal. The petitioner filed a challenge, which was accepted by Judge A.S. Supehia. Read more

Promotion

A petition asking for a directive to nullify and disregard the Seniority List of Multi-Purpose Health Workers was granted by Judge Biren Vaishnav. Read more

PPF

A.S. Supehia, J. allowed a writ petition directing Bank to deposit PPF amount deducted for settlement of liability that the amount of Public Provident Fund account shall not be liable to any attachment in respect of any debt or liability incurred by the account holder. Read more

Gauhati High Court

Anticipatory Bail

Sanjay Kumar Medhi, J. denied a petitioner’s request for bail under Section 438 of the Criminal Procedure Code, 1973 (CrPC), in a case that was filed under Sections 21(c) and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985. Read more

Drug and Food Safety

According to Rumi Kumari Phookan J., only a food inspector can investigate offences under the Food Safety and Standards Act, 2006 (FSS Act), and Maharashtra Police lacks both jurisdiction and jurisdictional authority to do so. As a result, the court ordered Maharashtra Police to pay the petitioner Rs. 2,00000 as petition costs. Read more

Narcotic Drugs and Psychotropic Substances Act

While granting bail to the applicant herein, under Section 439 of the Criminal Procedure Code (CrPC) for a case registered under Narcotic Drugs and Psychotropic Substances Act, 1985, Ajit Borthakur, J. held that the provisions of Section 37 of the NDPS Act shall not be applicable if the service courier driver is unaware of what is being transported by him. Read more

Himachal Pradesh High Court

Arbitral Proceeding

In the case where it was argued before the Court that the Arbitration and Conciliation Act, 1996 does not provide for any remedy to challenge an arbitral order and was therefore contrary to the “public policy of India,” Satyen Vaidya J. observed that, “The term “public policy of India” carries within it innumerable facets. Read more

Bail/ Parole

The plea for a parole extension filed under Section 482 of the Criminal Procedure Code (the “CrPC”) was denied by Judge Vivek Singh Thakur because Article 226 of the Indian Constitution provides the appropriate remedy. Read more

Jammu & Kashmir and Ladakh High Court

Anticipatory Bail

While deliberating on an anticipatory bail application concerning an FIR registered in Neemuch, Madhya Pradesh, the Bench of Sanjay Dhar, J., considered whether this High Court has the jurisdiction to grant bail in a case that has been registered beyond its local limits of jurisdiction under Section 438, CrPC. Read more

Right to Life

While reviewing the information and concerns provided by the petitioners, the M.A. Chowdhary, J. bench made some important remarks regarding the voluntary marriage of two adults. The Court declared that Articles 19 and 21 of the Constitution properly recognise a couple’s right to get married. Read more

Kashmiri Pandits

The bench of Sindhu Sharma, J., dismissed the petition because the petitioners lacked any inalienable right to allotment of government housing when ruling on the instant petition filed by 3 retired State Bank of India employees who had retained their respective government accommodations and were unhappy with the rent being charged at a commercial rate. Read more

Jharkhand High Court

Qualification for promotion

Anubha Rawat Choudhary, J. held that the respondent had the necessary experience of guiding research at the Doctoral level as of the cut-off date in a case relating to qualification to be appointed as a professor at Vinoba Bhave University, even though the concerned research student did not receive her degree. Read more

Karnataka High Court

Rape

M Nagaprasanna, J., annulled the proceedings against the petitioners in Byadarahalli Police Station Crime No.87 of 2022, which was pending before the Chief Judicial Magistrate, Bangalore Rural District, Bangalore. Read more

Agricultural land compensation

A Division Bench of Alok Aradhe and J M Khazi, JJ., rejected the appeal and overturned the impugned verdict, ordering the appellants to determine and pay the compensation to the respondents. Read more

Protection of Witness

S. Sunil Dutt Yadav, J. listed a few causes of investigation delay, the primary causes of low conviction rate, the consequences of investigation delay, and guidelines for speedy investigation. Read more

Bigamy

M. Nagaprasanna, J. granted the petition in part and remarked that the quadrangle’s protagonists should resolve the issue among them rather than drag other people into the proceedings. Read more

Principles of Natural Justice

S.G. Pandit, J. dismissed the petition, leaving respondent-Railway authorities free to take action against the catering services after providing them with an opportunity under the law. Read more

Cruelty/ Divorce

The plea was partially granted by the division bench of S. Sunil Dutt Yadav and K.S. Hemalekha, JJ. The parties’ marriage was ended due to mental cruelty for the wife’s unfounded accusations against the husband. Read more

Domestic Violence

M. Nagaprasanna J. granted the petition and ordered that the application for maintenance be decided within two weeks after receiving a copy of this decision. Read more

Child sexual offence

The victim has now turned 18 years old, so the strictures under S. 33(5) of the Protection of Children from Sexual Offenses Act, 2012 (the “POCSO Act”) are no longer relevant. Therefore, M. Nagaprasanna, J. granted the petition filed to conduct an additional cross-examination of the child victim. Read more

Dowry Death

The FIR against the lady who had illicit connections with the complainant’s husband and was charged under Section 498-A of the Penal Code, 1860 was dismissed by Hemant Chandangoudar J. Read more

Dishonour of Cheque

M. Nagarprasanna J. allowed a petition filed under Section 482 of Criminal Procedure Code, 1973 (CrPC) and directed that interim compensation which would vary from 1% to 20% after recording necessary reasons be given as per the “conduct of the accused” for the applications filed under Section 143-A of the Negotiable Instruments Act, 1881 (NI Act). Read more

Kerala High Court

Habeas Corpus/ Special Marriage

A Division Bench of K Vinod Chandra and C Vijayachandran, JJ. dismissed the plea and denied the requested relief, concluding that the detainee maintained that he was not under any unlawful confinement. Read more

POCSO

Taking note of the alarming increase in the number of sexual offences committed against schoolchildren, Bechu Kurian Thomas, J., directed the Kerala Government and the Central Board of Secondary Education (CBSE) to include sessions/classes in the school curriculum on the provisions of the Protection of Children from Sexual Offenses Act, 2012. Read more

NTPC/ Discrimination

The decision by V.G. Arun, J., that NTPC’s notification for the recruitment of Assistant Law Officers is discriminatory and in violation of Article 16 of the Constitution because it restricts the selection process to only CLAT PG-2021 candidates comes as a significant relief to non-NLU law graduates looking for employment opportunities in PSUs. Read more

Cruelty/Desertion

A. Muhamed Mustaque and Sophy Thomas, JJ., who made up the Division Bench, ruled that cruelty must be judged from the viewpoint of a spouse, or how that spouse would interpret the actions of the other spouse, to be considered. Read more

Anticipatory Bail

Vijay Babu, a film producer and artist, was granted anticipatory bail by Bechu Kurian Thomas, J., in a high-profile rape case that sparked outrage in the film industry. The Court ruled that there is no legal prohibition against granting anticipatory bail to a person who is physically present overseas. Read more

Reproductive Rights

The Assisted Reproductive Technology (Regulation) Act of 2021 prohibits the sale of human gametes, zygotes, and embryos but does not forbid a couple from using their embryo to conceive a child. This is why V.G. Arun, J., allowed a couple to transfer their frozen embryo to another hospital for infertility treatment. Read more

Pre Arrest Bail

In a case concerning attacks against doctors and medical institutions, Bechu Kurian Thomas, J., denied pre arrest bail and held that granting pre-arrest bail to an accused who is alleged to have committed violence against a healthcare professional will send a wrong message to the public. Read more

Compulsory Licensing

While adjudicating a petition filed by a breast cancer patient seeking to afford life-saving medicines which otherwise cost more than twice her monthly income, V. G. Arun, J. directed Central Government to consider compulsory licensing of the breast cancer drug “Ribociclib”. Read more

Madhya Pradesh High Court

Rape

Anand Pathak, J. granted a petition filed under Section 482 of the Code of Criminal Procedure seeking the dismissal of an FIR filed against the petitioner and subsequent criminal proceedings for an offence under Sections 376 and 506 of the Penal Code, 1860. Read more

Bail/ Corruption

The applicant was arrested on February 3, 2022, for a crime punishable by Sections 409, 420, 467, 468, 471, 201, and 120-B of the Penal Code, 1860, as well as Sections 7, 13(1) and 13(2) of the Prevention of Corruption Act, 1988. Anand Pathak, J. refused the applicant’s motion for bail. Read more

Arya Samaj

A petition was submitted to address and investigate several concerns regarding marriages solemnized in Arya Samaj Vivah Mandir Trust, and the Division Bench of Rohit Arya and Milind Ramesh Phadke, JJ. accepted it. Read more

Motor Vehicle

While dismissing an appeal filed under Section 173(1) of the Motor Vehicles Act, 1988 , Vishal Dhagat, J. held that the present case is a case of misrepresentation on the part of legal representatives/driver/owner of vehicle in contracting with the appellant for purchase of policy in name of deceased owner as contract entered between the parties is not voidable. Read more

Madras High Court

Mental Illness

G R Swaminathan J. answered in negative to the moot consideration that can certifying authority insist a Child suffering from mental illness, who requires a disability certificate, to come to premises of institution for assessment. Read more

Educational certificate

While addressing the grievance of some qualified doctors, G.R. Swaminathan, J. stated that because an educational certificate is not a marketable commodity, no lien can be exercised under Section 171 of the Indian Contract Act, 1872. Read more

Income Tax Appellate Tribunal

G. Chandrasekharan, J. declined to quash prosecution against actor SJ Suryah as the order of the Income Tax Appellate Authority, cancelling the assessment orders was not on merits. Read more

Social Media Intermediaries

B. Pugalendhi, J., revoked the bail of a YouTuber who made disparaging statements about the former Chief Minister of Tamil Nadu. Read more

Documentary/Oral Evidence

Senthil Kumar Ramamoorthy, J., stated that a suit cannot be hurriedly determined at the request of a plaintiff unless the plaintiff convinces the court that the suit claim has been fully established. Read more

Income Tax

A Division Bench of R Mahadevan and Sathya Narayan Prasad, JJ. rejected the tax appeal because guarantee commission and royalty must be subtracted from company profit to calculate the deduction under Section 80 HHC of the Income Tax Act, 1961. Read more

Service Rules

S M Subramaniam, J. upheld the decision taken by Indian Banks Association to unilaterally withdraw the facility for State Bank of India officers to visit overseas countries as part of Leave Travel Concession ‘LTC’/ Home Travel Concession ‘HTC’. Read more

Meghalaya High Court

POCSO

W Diengdoh J. quashed a POCSO case opining that just holding the hands of the victim girl and complimenting them would not amount to sexual intent or sexual assault under POCSO. Read more

Rape

The appeal, which challenged the April 27, 2021 judgement of conviction finding the appellant guilty under Section 376(2) of the Penal Code, 1860, was decided by the Division Bench of Sanjib Banerjee, CJ. and W. Diengdoh, J. The main focus of the appeal was the 20 years of rigorous imprisonment and Rs. 50,000 fine that was imposed. Read more

Public Interest Litigation

A petition concerning the current health-care system was heard by the Division Bench of Sanjib Banerjee, CJ, and W. Diengdoh, J. Read more

Life Imprisonment

The Division Bench of Sanjib Banerjee, Chief Justice, and W. Diengdoh, J., dismissed the petition and set aside the conviction order, which was directed against a judgment of conviction under Section 302 of the Penal Code, 1860 and the order of punishment, which sentenced him to life in prison. Read more

Orissa High Court

Superannuation

S.K. Panigrahi, J., denied the petition, stating that “no plea for a change of date of birth after five years from the joining date will be considered.” Read more

Transgender Rights

A.K. Mohapatra, J., has been instructed to complete the trans-sexual woman’s application for a family pension as soon as feasible, ideally within six weeks after receiving a certified copy of the order. Read more

Administrative laches

S. K. Panigrahi, J., ordered the State to pay simple interest at the rate of 6 percent per year on postponed salary within 30 days of today. Read more

Guardian and Wards Act

The case was dismissed by a Division Bench consisting of SK Sahoo and M S Raman JJ., giving the petitioner the freedom to seek the proper remedy before the proper venue in line with the law. Read more

Central Information Commission

A Division Bench of S. Muralidhar and R.K. Pattnaik, JJ. issued a declaratory writ to the effect that the impugned notification dated 11-08-2016 issued by the Information and Public Relations Department, Government of Odisha under Section 24(4) of the Right to Information Act, 2005 (‘RTI Act’), will not permit the Government to deny information pertaining to the Vigilance Department involving allegations of corruption and human rights violations, and other information that does not touch upon any of the sensitive and confidential activities undertaken by the Vigilance Department. Read more

Compensation

Arindam Sinha, J. criticised the State for not following the procedure and granted compensation to a woman who conceived even after being sterilised by the State. Read more

Patna High Court

Right to Sanitation

Sanitation is a private, individual matter that is intimately connected to human dignity. Additionally, cleanliness has a crucial public health component. According to a recent ruling by the Division Bench of Sanjay Karol CJ and S. Kumar J, the right to sanitation falls under the purview of Article 21 and as a result, the State, National Highway Authority of India, and Oil Marketing Companies have been instructed to build public restrooms and other conveniences along all of Bihar’s highways. Read more

Rape

While dealing with a case of rape, A M Badar, J. observed that mere non-offering of physical resistance by a rape survivor cannot amount to the consent given by a woman for sexual activity under Section 375 of the Indian Penal Code (‘IPC’). Read more

Punjab & Haryana High Court

Religious Beliefs

Karamajit Singh, J., directed the State of Punjab not to take “coercive steps” against Raveena Tandon, Farah Khan, Bharti Singh, Screen Abbas Aziz Dalal, and Frames Production in response to their petition seeking the quashing of an FIR filed against them for allegedly hurting religious sentiments during a Flipkart web show titled “Backbenchers.” Read more

NDPS Act

In a petition under section 439 CrPC for regular bail under sections 22, 25, 27-A, and 29 of the NDPS Act, Jasjit Singh Bedi, J., expanded the petitioner-accused on bail while repeating the observations made by various Courts, including the Supreme Court, on the requirement that section 42 of the NDPS Act be complied with by the relevant authority. Read more

Muslim Personal Law

After the petitioners were forced into marriage, a writ petition was filed to seek the protection of their life and liberty from family members. Jasjit Singh Bedi, J. instructed the Senior Superintendent of Police to determine the petitioners’ claims regarding the threat to their life and liberty after taking into account the petitioners’ capacity to enter into a legal marriage contract and attending to their concerns. Read more

Rajasthan High Court

Bailable Warrant

Dinesh Mehta, J. granted the petition and stated that while expediting the disposition of cases is important, so is adhering to the mandate of the law, including procedural law. Read more

Culpable Homicide

Farjand Ali, J. rejected the petitioner’s request for bail after finding that the investigating agency had overlooked several relevant pieces of evidence. The petitioner was accused of committing an honour killing. Read more

Police Protection

Sameer Jain J. granted police protection and directed the State authorities to charge an appropriate fee from the couple seeking police protection before the Court, if the income is found to be more than the taxable income under the Income Tax Act, 1961. Read more

Telangana High Court

Anticipatory Bail

Juvvadi Sridevi, J., granted anticipatory bail pending the conclusion of the inquiry and the submission of the final report. The Court remarked that the accused 2/petitioner 2 did not appear to have been served with a notice under Section 41-A CrPC, whereas the accused 1/petitioner 1 was simply provided with the notice. Read more

Prevention of Money Laundering

K. Lakshman, J. upheld the petitioner’s appeal against the Directorate of Enforcement’s (ED) request to extend the petitioner’s judicial custody so that the investigation could be finished, stating that a complaint filed without a complete investigation cannot be used to avoid the right to statutory bail under Section 167(2) CrPC. Read more

Maintenance under Section 125 CrPC

In a maintenance case, Sathish Reddy, J. stated that the wife’s earning capacity cannot be used to deny her maintenance. Read more

Commercial Courts Act

The appeal was allowed by the Division Bench of P. Naveen Rao and Sambasivarao Naidu, JJ., who overturned the impugned order’s stance that any disagreement arising from a contract involving real estate that is solely used for business or commerce and whose “specified value” exceeds one crore belongs in a commercial court alone. Read more

Tripura High Court

Harassment

While noting that there were no legitimate grounds to deny the employee gratuity and other retrial benefits, Arindam Lodh, J. directed the employer to release the employee’s gratuity, pension, and other retrial benefits. Read more


*Arunima Bose has put this report together.

Fact ChecksNews

On June 14th 2022, a leading newspaper had published an article with the headline Illegitimate child of cohabiting couple to get assets share: Supreme Court”. The first paragraph of the article stated

“In an important judgment relating to partition of property among Hindus, the SC on Monday ruled that an illegitimate child of a couple cohabiting for long without marriage would be entitled to a share in the family property.”

A screenshot of the article can be seen below:

The full article can be read here. On the face of it, it appeared to be a landmark judgement. We searched for the original judgment and read it to analyse it further. 

What we found: 

The case in question is Kattukandi Edathil Krishnan v. Kattukandi Edathil Valsan, 2022 SCC OnLine SC 737, decided on 13.06.2022. It was a family property dispute wherein the legitimacy of one of the contenders was questioned.  

The suit property belonged to a family governed by the Mitakshara Law of Inheritance. The said property originally belonged to one Kattukandi Edathil Kanaran Vaidyar who had   four sons, namely Damodaran, Achuthan, Sekharan and Narayanan. Achuthan had a son. Sekharan and Narayanan did not marry. Damodaran married one Chiruthakutty and they had a son by the name of Krishnan. However, the defendants contended that Damodaran never married Chiruthakutty and hence, by virtue of illegitimacy, Krishnan, the first plaintiff, cannot claim share in the property. The case has been analysed in detail here.

In the judgment, the Court reiterated the settled law that if a man and a woman live together for long years as husband and wife, there would be a presumption in favour of wedlock. Such a presumption could be drawn under Section 114 of the Evidence Act. Although, the presumption is rebuttable, a heavy burden lies on him who seek to deprive the relationship of legal origin to prove that no marriage took place.

Selected extracts from the judgment have been mentioned below:

Mr. V. Chitambaresh submits that the voluminous documents produced by the plaintiffs would show that Damodaran was the father of the first plaintiff and Chiruthakutty was the wife of Damodaran. Since their marriage took place more than 50 years prior to filing of the suit (now 90 years), there is no possibility of having any documentary evidence of their marriage. He has taken us through the various documents produced by the plaintiffs wherein there are references to periodical payments made to Chiruthakutty from the husband’s house. He has also taken us through the evidence of plaintiffs and, the witnesses examined on behalf of the plaintiffs in support of his contention. It is further argued that the documents produced by the plaintiffs were in existence long before any controversies between the parties arose. These documents would conclusively show that the first plaintiff was the son of Damodaran and Chiruthakutty and the contention of the defendants that Damodaran died as a bachelor or without any legitimate son, cannot be believed at all. It is further submitted that the law is in favour of declaring legitimacy, as against bastardy. Long course of living together between a male and female will raise a presumption of marriage between them and the children born in such relationship are considered to be legitimate children. It is further argued that while such presumption, made under Section 114 of the Indian Evidence Act, 1872, is a rebuttable one, as rightly held by the Trial Court that the defendants have not produced any worthwhile evidence to rebut this presumption in the present case.

 It is well settled that if a man and a woman live together for long years as husband and wife, there would be a presumption in favour of wedlock. Such a presumption could be drawn under Section 114 of the Evidence Act. Although, the presumption is rebuttable, a heavy burden lies on him who seek to deprive the relationship of legal origin to prove that no marriage took place.

  1. In Andrahennedige Dinohamy v. Wijetunge Liyanapatabendige Balahamy 1927 SCC OnLine PC 51, the Privy Council laid down the general proposition as under:

“…where a man and woman are proved to have lived together as man and wife, the law will presume, unless the contrary be clearly proved, that they were living together in consequence of a valid marriage and not in a state of concubinage.”

Therefore, the judgment in this case, bore out of the fact that the defence could not rebut the presumption of marriage between the couple and therefore the question of legitimacy of child did not arise. This is not a landmark case on rights of illegitimate children but a reiteration of a well settled law that a long cohabiting couple will be assumed to be married unless those who question the marriage can prove it otherwise.  The headline and the excerpt mentioned in the screenshot above, is misleading as in this case, the judge merely held that the marriage between the cohabitating people could not be disapproved by the defendants. The Court upheld the Trial Court position that defendants have not produced any worthwhile evidence to rebut the presumption of marriage under Section 114 of the Evidence Act, 1872. Hence, neither the couple was held to be cohabitating “without marriage” nor was the son considered to be “illegitimate”. 

Bombay High Court
Case BriefsHigh Courts

Bombay High Court: The Division Bench of Sadhana S. Jadhav and Milind N. Jadhav, JJ., allowed an appeal which was filed against the conviction of the appellant for the offence punishable under section 302 of Penal code, 1860 wherein he was sentenced to suffer R.I. for life and fine of Rs.5,000.

On 18-10-2010, a report was lodged by Laxman Daji Bhoye (witness 1)  alleging therein that one person from Sawarpada informed him that on 17-10-2010 Suresh Bhagat had killed his wife. He went to the spot to verify the same and saw Suresh Bhagat (‘the present appellant’) seated besides the dead body of his wife who was lying in a pool of blood. On enquiry he disclosed that when he returned home from the house of his relatives after watching television, he knocked on the door but there was no response so he entered the house through the window. He noticed that his wife was in deep sleep. He assaulted on her head and back and thereafter, paid no attention to her. In the morning, at about 6.00 am, he realized that his wife has passed away. According to the prosecution, there is an extra-judicial confession by the accused. The prosecution had examined five witnesses to bring home the guilt of the accused amongst which witnesses 1, 2 and 3 were declared hostile.

The question before the Court was as to what is the evidence as against the accused which would lead to a necessary inference that the accused is the author of the injuries sustained by the deceased.

An accused can be convicted only in the eventuality that the investigation places on record such material which could be converted into admissible evidence and can be read in evidence.

The Court believed that in the present case, in view of the nature of the evidence adduced by the prosecution, it would be difficult to act upon the supposition that the fact of homicidal death at the hands of the accused is proved.

Counsel for the appellant submitted that this was a case of no evidence in the eyes of law and hence, the accused deserved to be acquitted of the charge levelled against him.

APP submitted that it was incumbent upon the accused to offer an explanation as contemplated under section 106 of the Indian Evidence Act and the very fact that the dead body was found in the house of the accused and he had not put forth any plausible explanation was sufficient to convict the accused for an offence punishable under section 302 of IPC. It was further submitted that there was an extra-judicial confession before Witness 1 which goes to the root of the matter and pointed towards the culpability of the accused.

The Court explained that it is a settled principle of criminal jurisprudence that an accused has a right to maintain silence and it is for the prosecution to prove its case beyond reasonable doubt. As far as extra-judicial confession was concerned, the Court reiterated that the same was not reliable for the simple reason that the person to whom the purported extra-judicial confession was made had resiled from his earlier statement and had been declared hostile by the prosecution.

Placing reliance on State of Rajasthan v. Raja Ram, (2003) 8 SCC 180 where it was held that “an extra-judicial confession, if voluntary and true and made in a fit state of mind, can be relied upon by the Court. The confession will have to be proved like any other fact. The value of the evidence as to confession, like any other evidence, depends upon the veracity of the witness to whom it has made. The value of the evidence depends on the reliability of the witness who gives the evidence.” the Court stated that an extra-judicial confession is a weak piece of evidence and can be relied upon provided, it is voluntary and is made in a fit state of mind.

The Court while allowing the appeal held that this could be a case of no evidence and thus, falls in the category of disproved. Judgment and order of conviction was quashed and set aside and the appellant was acquitted of the offence punishable under section 302 of the IPC.

[Suresh Ladak Bhagat v. State of Maharashtra, Criminal Appeal No.9 of 2014, decided on 19-04-2022]


Mr Samir Arunkumar Vaidya, Mr Hare Krishna Mishra: Advocates for the Appellant.

Ms M.M. Deshmukh: APP for the Respondent – State.


*Suchita Shukla, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Rajasthan High Court: A Division Bench of Sandeep Mehta and Sameer Jain, JJ. allowed the appeal and quashed and set aside the impugned judgment.

The appellant Mohanlal was married to Smt. Jhamka (hereinafter referred to as ‘the deceased’) daughter of Sanwla Ram about 5 years before the incident. Smt. Jhamka was inflicted injuries at her matrimonial home on 05-07-2013 and was taken to the hospital where, she was declared dead. on account of demand of dowry. The accused Mohanlal took a specific plea of insanity in his explanation and stated that he was suffering from a bout of schizophrenia on the date of the incident. The appellant herein has been convicted and sentenced as below vide judgment. Being aggrieved of his conviction and sentences, the appellant has preferred the instant appeal under Section 374(2) Cr.P.C.

Counsel for appellant submitted that the accused was suffering from insanity well before and even on the day of the incident and thus, he is entitled to the benefit of plea of insanity by virtue of Section 84 of the IPC which was corroborated by witnesses and medical expert and thus the benefit of Section 84 IPC be given.

Counsel for respondents submitted that based on the evidence produced before the court especially the blood samples collected from the place of the alleged crime were subjected to Forensic examination and all tested positive for presence of ‘B’ Group human blood which establishes beyond all manner of doubt that the accused appellant was responsible for inflicting the fatal injuries to Smt. Jhamka. He contended that the murder was committed inside the matrimonial home and as the presence of the accused in the house has been established by unimpeachable evidence, by virtue of Section 106 of the Indian Evidence Act, the burden would shift on to the accused.

As per the evidence and by resorting to the reverse burden of proof under Section 106 of the Indian Evidence Act, the Court observed that the appellant inflicted the fatal sharp weapon injuries to his wife. Hence, we have no hesitation in concluding that the trial court was perfectly justified in holding that the appellant herein inflicted the blows by a sharp weapon to Smt. Jhamka thereby causing her death. Thus, the injuries were sufficient in the ordinary course of nature to cause death and hence, the offence punishable under Section 302 IPC is well established from the material placed on record by the prosecution.

The Court further observed that having considered the entirety of material available on the record, the evidence of the medical experts and the prescription slips which have been proved by these experts, there is unimpeachable documentary as well as oral evidence which establishes beyond all manner of doubt that the accused was being provided treatment for the mental ailment since the year 2010 onwards. A Medical Board was constituted to examine the accused under the order of the court in the year 2016, and even at that time, he was found suffering from Psychosis NOS.

What is Psychosis NOS?

Psychosis, Not Otherwise Specified (NOS) is a categorization of symptoms within general diagnosis of Psychosis. Modi’s Medical Jurisprudence and Toxicology grades Psychosis as an acutely severe mental disorder, where the patient loses contact with reality along with absolute lack of empathy and absence of insight.

The Court relied on judgment Devidas Loka Rathod v. State of Maharashtra, AIR 2018 SC 3093 and observed that the burden on the defence to prove the plea of insanity is only to the extent of establishing the same by preponderance of probabilities and such a defence need not be proved beyond all manner of doubt. Thus, the conclusion drawn by the trial court that the defence failed to prove that the accused was affected with such mental ailment, which prevented him from understanding the consequences of his acts, is totally unjustified.

The Court held “In wake of the discussion made herein above, we are persuaded to accept the plea of insanity advanced on behalf of the appellant to overturn his conviction as recorded by the trial court by the impugned Judgment.”

The Court further directed “The appellant is acquitted of the charges. He is in custody. He shall be released from prison forthwith if not wanted in any other case. After his release from prison, the appellant shall be provided care and support befitting his right to life under Article 21 of the Constitution of India.” [Mohan Lal v. State, 2022 SCC OnLine Raj 185, decided on 27-01-2022]


Arunima Bose, Editorial Assistant has reported this brief.


Appearances:

For Appellant(s): Mr. Dinesh Vishnoi.

For Respondent(s): Mr. B.R. Bishnoi

Case BriefsSupreme Court

Supreme Court: In an issue relating to the alleged gift deed by an old illiterate woman, the bench of MR Shah and Sanjiv Khanna*, JJ has held that when a person obtains any benefit from another, the court would call upon the person who wishes to maintain the right to gift to discharge the burden of proving that he exerted no influence for the purpose of obtaining the document. While the corollary to this principle finds recognition under sub-section (3) to Section 16 of the Contract Act, 1872 which relates to pardanashin ladies, the courts can apply it to old, illiterate, ailing or infirm persons who may be unable to comprehend the nature of document or contents thereof.

Factual Background

The dispute relates to land owned by Hardei, who died issueless in 1991. Gian Chand is the son of Hardei’s brother, whereas Keshav is her sister’s son. Gian Chand and Dhanbir, contended that late Hardei had gifted the land to them during her lifetime vide gift deed dated 23rd December 1985.

Keshav, on the other hand, claimed that he was a tenant in occupancy of the land for over 15 years, a fact admitted by Hardei before the revenue authorities. Keshav had therefore acquired rights over the land. Hardei, during her lifetime, had denied execution of the gift deed and opposed the request of mutation of the land in favour of Gian Chand and Dhanbir, which request for mutation was rejected in 1989.

Both the Trial Court and the first appellate court decided in favour of Keshav to hold that the execution of the gift deed by Hardei in favour of the plaintiffs was a delusion, bease on the following facts:

Hardei was an old illiterate lady who used to live in a village with her sister’s son Keshav. The gift deed statedly executed on 23rd December 1985 and registered on 1st January 1986, was not produced for mutation till 1989, where also, Hardei had opposed the mutation and denied execution of gift deed in favour of the plaintiffs. She had stated before the revenue authority that Keshav was in possession of the land in dispute for about the last 15 years. Further, there was ample evidence to show that Keshav was looking after Hardei and taking care of her needs. Therefore, there was no reason for Hardei to execute a gift deed favouring the plaintiffs. The plaintiffs were never in possession of the suit land even for the period after execution of gift deed in 1986, and till the institution of the suit in 1991. The revenue entries for the said period did not support the plaintiffs.

The Himachal Pradesh High Court, however, reversed the concurrent findings on the ground that the trial court and the first appellate court had misread and misinterpreted the documentary and oral evidence.

Analysis

The Court noticed that the concurrent findings of the lower courts delve into the context and factual aspects surrounding the primary evidence viz., gift deed, to conclude that the plaintiffs case lacks base for a bona fide claim for decree of declaration. Appreciation of evidence is an exercise based on facts and circumstances where the preponderance of probability can take varying form and configurations. What facts and circumstances have to be established to prove the execution of a document depends on the pleas put forward. Ordinarily, no one is expected to sign or execute a document without knowing its contents, but if it is pleaded that the party executing the document did not know the contents thereof then it may, in certain circumstances, be necessary for the party seeking to prove the document to place material before the court to satisfy it that the party who executed the document had the knowledge of its contents.

When a person obtains any benefit from another, the court would call upon the person who wishes to maintain the right to gift to discharge the burden of proving that he exerted no influence for the purpose of obtaining the document. Corollary to this principle finds recognition in sub-section (3) to Section 16 of the Contract Act, 1872 which relates to pardanashin ladies. The courts can apply this principle to old, illiterate, ailing or infirm persons who may be unable to comprehend the nature of document or contents thereof.

Equally, one who bargains in the matter of advantage with a person who places confidence in him is bound to show that a proper and reasonable use has been made of that confidence. The burden of establishing perfect fairness, adequacy and equity is cast upon the person in whom the confidence has been reposed. Therefore, in cases of fiduciary relationships when validity of the transaction is in question it is relevant to see whether the person conferring the benefit on the other had competent and independent advice.

The question whether a person was in a position to dominate the will of the other and procure a certain deed by undue influence is a question of fact, and a finding thereon is a finding of fact, and if arrived at fairly in accordance with the procedure prescribed, it is not liable to be reopened in second appeal.

Ruling on facts

Considering that the very origin of the gift deed was disputed by the executant during her lifetime, the lower courts were right in weighing the evidence of the gift deed on the touchstone of its validity first, rather than its form and content.

The fact in issue in the present case is the voluntariness and animus necessary for the execution of a valid gift deed, which is to be examined on the basis of evidence led by the parties who could depose for the truth of this fact in issue. Decision and determination of the fact in issue is by examination of the oral evidence of those persons who can vouchsafe for the truth of the facts in issue.

The impugned judgment in the second appeal by the High Court, unfortunately, chose to ignore and not deal with the fact in issue in the background of the case, but was completely influenced by the evidence led to support execution and registration of the document, and not whether execution was voluntary and in exercise of unfettered will to effect gratuitous transfer of land in favour of the plaintiffs.

Concurrent findings of facts arrived at in the present case were based upon a holistic examination of the entire evidence relating to execution and validity of the gift deed. The lower courts did not adopt a legalistic approach but took into account not one but several factual facets to accept the version given by Keshav that the gift deed was not a valid document.

“These concurrent findings are not perverse but rather good findings based upon cogent and relevant material and evidence on record. These findings of the facts can be interfered in the second appeal only if they are perverse or some gross illegalities have been committed in arriving at such findings. To reverse the findings is not only to assess errors but also deal with the reasons given by the court below and record findings and grounds for upsetting the conclusion.”

The Court hence held that the views and findings recorded by the lower courts are well reasoned and have taken into account several factors that repel and contradict the claim of a valid execution of the gift deed by Hardei favouring the plaintiffs. Hence, the impugned judgment of the High Court was set aside.

[Keshav v. Gian Chand, 2022 SCC OnLine SC 81, decided on 24.01.2022]


*Judgment by: Justice Sanjiv Khanna

Case BriefsDistrict Court

XVIII Addl. Chief Metropolitan Magistrate, Bengaluru City: Manjunatha, XVII Addl. C.M.M., found the accused guilty for the offence under Section 138 of the Negotiable Instruments Act, on his failure to rebut the statutory presumption in favour of the holder of cheque.

Background

The complainant had filed the instant complaint under Section 200 of Code of Criminal Procedure read with Section 138 of the Negotiable Instruments Act against the accused alleging that, she had committed the offence punishable under Section 138 NI Act.

Complainants and the accused were well known to each other as they were residing in the same locality and in 2018, the accused had approached the complainant for a loan of Rs 4,00,000 for the purpose of urgent legal and domestic necessities and promised to repay the same within 6 months.

Considering her request the complainant had paid Rs 4,00,000 to the accused by way of cash.

The accused and her husband had executed an undertaking by acknowledging the receipt of the amount, but she failed to keep up her promises. On repeated demand and request, the accused issued a cheque but the same was returned unpaid with an endorsement “Funds Insufficient” in the drawer’s account.

Further, despite the notice, the accused had not paid the cheque amount and thereby she had committed an offence punishable under Section 138 NI Act.

Court had issued summons and later, the accused was enlarged on bail.

As per the direction of the Supreme Court in Indian Bank Assn. v. Union of India, (2014) 5 SCC 590, this Court treated the sworn in statement of the complainant as complainant evidence.

Analysis, Law and Decision

Court cited the decision of Sukur Ali v. State of Assam, (2011) 4 SCC 729, in which the Supreme Court opined that even assuming that the counsel for the accused does not appear because of the counsel’s negligence or deliberately, even then the Court should not decide a criminal case against the accused in the absence of his counsel since an accused in a criminal case should not suffer for the fault of his counsel and in such a situation the Court should appoint another counsel and in such a situation the Court should appoint another counsel as amicus curiae to defend the accused.

In the decision of K.S. Panduranga v. State of Karnataka, (2013) 3 SCC 721, Supreme Court held that, “regard being had to the principles pertaining to binding precedent, there is no trace of doubt that the principle laid down in Mohd. Sukur Ali (supra) by the learned Judges that the court should not decide a criminal case in the absence of the counsel of the accused as an accused in a criminal case should not suffer for the fault of his counsel and the court should, in such a situation, must appoint another counsel as amicus curiae to defend the accused and further if the counsel does not appear deliberately, even then the court should not decide the appeal on merit is not in accord with the pronouncement by the larger Bench in Bani Singh” .

The Court further held that in view of the aforesaid annunciation of law, it can safely be concluded that the dictum in Mohd. Sukur Ali (supra) to the effect that the court cannot decide a criminal appeal in the absence of counsel for the accused and that too if the counsel does not appear deliberately or shows negligence in appearing, being contrary to the ratio laid down by the larger Bench in Bani Singh (supra), is per incuriam. Furthermore, the transaction alleged in the case is purely a commercial transaction enetered into between two private individuals and the accused is not in judicial custody and he is not fall under any of the parameter under legal services authorities Act to get free legal aid. Under such circumstance question of appointing advocate for accused at the state cost may not arise at all.”

 Question for Consideration:

Whether the complainant proves that, accused issued cheque for Rs 4,00,000 towards discharge of her liability, which was returned unpaid on presentation for the reason “Fund Insufficient” and despite of notice she had not paid the cheque amount and thereby committed an offence punishable under Section 138 of NI Act?

Analysis, Law and Decision

Court stated that, Sections 118 and 139 of NI Act raises a presumption in favour of the holder of the cheque that he had received the same for discharge in whole or in part of any debt or other liability.

Further, it was added that the accused can take probable defence on the scale of the preponderance of probability to rebut the presumption available to the complainant.

Whether the accused had successfully rebutted the said presumptions of law?

Court observed that the accused had not disputed the issuance of cheque and her signature in the cheque.

When the drawer has admitted the issuance of the cheque as well as the signature present therein, the presumptions envisaged under section 118 read with section 139 of NI Act, would operate in favour of the Complainant.

 The Bench added that the above-said provisions laid down a special rule of evidence applicable to negotiable instruments. The presumption is one of law and thereunder the court shall presume that the instrument was endorsed for consideration.

“…when the complainant has relied upon the statutory presumptions enshrined under section 118 read with section 139 of NI Act, it is for the accused to rebut the presumptions with cogent and convincing evidence.”

It is worth noting that, Section 106 of Indian Evidence Act postulates that, the burden is on the accused to establish the fact which was especially within his special knowledge.

Hence, the burden is on the accused to prove that the cheque in question was not issued for discharge of any liability.

With regard to proof of existence of legally enforceable debt was concerned, Court referred to the decision of Supreme Court in Rangappa v. Mohan, (2010) 11 SCC 441, wherein it was observed that,

“In the light of these extracts, we are in agreement with the respondent-claimant that the presumption mandated by section 139 of the Act does indeed include the existence of the legally enforceable debt or liability”

 In another decision in, T. Vasanthakumar v. Vijayakumari, (2015) 8 SCC 378, it was held that once the accused has admitted the issuance of Cheque, as well as signature on it, the presumption under Section 139, would be attracted.

In the present matter, despite giving sufficient time, the accused neither led defence evidence nor cross-examined PW1, therefore the evidence placed by the complainant remained unchallenged and there was no reason to disbelieve the version of the complainant.

The complainant had not produced any document regarding the lending of the amount to the accused, but in the absence of any contrary evidence, the unchallenged testimony of the complainant had to be believed. As such there was no rebuttal evidence on behalf of the accused to rebut the presumption available under Sections 118 and 139 of the NI Act.

Therefore, the complainant’s case was acceptable.

The complainant proved that, for discharge of liability accused had issued a cheque and she had intentionally not maintained a sufficient amount in her account to honour the said cheque.

In view of the above discussion, the complainant had proved the guilt of the accused punishable under Section 138 NI Act.

Supreme Court in a decision of H. Pukhraj v. D. Parasmal, (2015) 17 SCC 368, observed that having regard to the length of the trial and date of issuance of cheque, it was necessary to award reasonable interest on the cheque amount along with cost of litigation.

The Bench held that rather than imposing punitive sentence if sentence of fine is imposed with a direction to compensate the complainant for its monetary loss, by awarding compensation under Section 357 CrPC, would meet the ends of justice.

Lastly, Court opined that it was just and proper to impose fine of the amount of Rs 4,55,000 which included interest and cost of litigation. [N. Muniraju v. Manjula, Criminal Case No. 25494 of 2019, decided on 1-1-2022]


Advocates before the Court:

For the complainant: S.K

For the accused: G.V.K

Case BriefsSupreme Court

Supreme Court: In a big relief for three death row convicts, the 3-judge bench of L. Nageswara Rao, BR Gavai* and BV Nagarathna, JJ has acquitted all of them of charges of killing 6 members of their family after it was found that the prosecution had failed to prove the case beyond reasonable doubt.

The Prosecution story

It was Prosecution’s case that, on 23rd January, 2014, at around 8.30 p.m., Momin Khan, with his wife Nazra, along with Jaikam Khan (first cousin) and Sajid (Jaikam Khan’s son) came armed with knives and assaulted Mausam Khan   (father – 85 years), Asgari (mother – 80 years), Shaukeen Khan (brother), Shanno (sister-in¬law- 30 years), Samad (nephew – 8 years) and Muskan (niece-15 years) and killed them brutally.

The verdicts by the Trial Court and the Allahabad High Court

Vide judgment and order dated 2nd January, 2016, the Trial Court convicted all the four accused for the offence punishable under Section 302/34 of the IPC and sentenced them to death vide order dated 11th January, 2016. Momin, Jaikam and Sajid were also convicted for the offence punishable under Section 25/4 of the Arms Act and awarded rigorous imprisonment for a term of three years with a fine of Rupees Five Thousand and in case of default, they were to undergo additional imprisonment for a term of three months.

While the conviction and sentence imposed on Momin, Jaikam and Sajid was affirmed, Nazra was acquitted by the High Court.

The inconsistencies and lacunae in the prosecution case

  • The two witnesses were found to be interested witnesses and their testimony was found ‘neither wholly reliable nor wholly unreliable’ as though they could have witnessed the assault two victims, it was difficult to believe that they could have witnessed the assault on the other four deceased persons as allegedly the accused had murdered six deceased at different places of the house.
  • As per the prosecution version, the main motive behind the crime was the dispute over the management of the brick¬kiln between the accused Momin Khan on one hand and deceased Mausam Khan, deceased Shaukeen Khan and P.W.1-Ali Sher Khan on the other hand. However, as per the
  • P.W.1 ­Ali Sher Khan(Shaukeen Khan’s brother) and P.W.2 ­Jaan Mohammad (Ali Sher Khan’s brother-in-law) had admitted that Jaikam Khan and Sajid had nothing to do with the brick kiln business of deceased Mausam Khan nor was there any dispute between them. Hence, with regard to Jaikam Khan and Sajid, the prosecution has utterly failed to prove any motive and has also failed to prove any strong motive insofar as Momin Khan is concerned.
  • According to P.W.1¬Ali Sher Khan and P.W.2¬ Jaan Mohammad, a large number of villagers had gathered at the spot after the incident. However, none of the independent witnesses have been examined by the prosecution. Since the witnesses examined on behalf of the prosecution were interested witnesses, non¬examination of independent witnesses, though available, made the prosecution version doubtful.
  • Though fingerprints were taken at the spot, the fingerprint expert’s report was not placed on record.
  • Though the IO had come to the spot with the dog squad, report of the dog squad was also not placed on record.
  • The assertion of P.W.1¬Ali Sher Khan and P.W.2-Jaan Mohammad that they together had gone to the police station to lodge the report, was also contradicted by the evidence of the Constable Clerk at the police station. Further, not informing the Police on phone, despite having mobile phones, also casts a serious doubt with regard to the genuineness of the prosecution case.

“Shocked” and “amazed” at the findings of the Trial Court and the High Court

Referring to a paragraph of the Trial Court’s judgment, the Court said it was “shocked” at the finding and that,

“The narration makes for an interesting reading as a story. However, all the observations are nothing but conjectures and surmises, without there being any evidentiary support to them. It is really surprising, as to how the Additional Sessions Judge could have dealt with the present case in such a casual manner when he was considering the question of life and death of four accused.”

The Court was also “amazed” by the manner in which the High court has dealt with the present matter as it had attempted to put a burden on the accused, which, as per the well settled law, does not shift unless prosecution has proved the case beyond reasonable doubt.

The Court observed,

“While coming to the conclusion that the prosecution has failed to bring home the guilt of the accused beyond reasonable doubt, we are at pains to observe the manner in which the present case has been dealt with by the trial court as well as by the High Court, particularly, when the trial court awarded death penalty to the accused and the High Court confirmed it. The trial court and the High Court were expected to exercise a greater degree of scrutiny, care and circumspection while directing the accused to be hanged till death.”

All death row convicts walk free

Finding that the prosecution had utterly failed to prove the case beyond reasonable doubt, the Court held that the conviction and death sentence imposed on the accused was totally unsustainable in law. The Court, hence, acquitted all three convicts of the charges and ordered their release.

[Jaikam Khan v. State of Uttar Pradesh, 2021 SCC OnLine SC 1256, decided on 15.12.2021]


Counsels

For appellants: Senior Advocate Nitya Ramakrishnan, Advocate Dama Seshadri Naidu,

For P.W.1­: Advocate Anant Agarwal

For State: Additional Advocate General Vinod Diwakar


*Judgment by: Justice BR Gavai 

Case BriefsHigh Courts

Calcutta High Court: The Division Bench of Soumen Sen and Rabindranath Samanta, JJ., dismissed a criminal appeal which was filed against the judgment and order of conviction and sentence passed by Additional Sessions Judge–cum-Special Judge under POCSO Act, 2012 whereby the appellant had been convicted for commission of offence punishable under Section 6 of the Protection of Children from Sexual Offences Act, 2012 read with Section 376 (2) (i), Indian Penal Code and sentenced to suffer rigorous imprisonment for life without remission and to pay a fine of Rs. 2,000,00.

On 15th December, 2017 victim minor girl was raped by the appellant/accused as confessed by him to the mother of the victim at the time of confrontation and soon after that he fled away from his room. Thereafter, FIR was lodged under Section 6 of the POCSO Act. After completion of the investigation, the investigating officer submitted charge-sheet under Section 6 of the POCSO Act against the accused. Trial Judge found the accused guilty of committing the offence and charges framed against him being proved convicted and sentenced him as above. Feeling aggrieved by which the instant appeal was filed.

Counsel for the appellant argued that the prosecution had failed to establish the foundational facts and the charges levelled against the accused person, he further argued that the evidence of the prosecutrix cannot always be presumed to be gospel truth to record conviction of an accused. On the contrary, Counsel for the State submitted that the ocular evidence conjointly with the medical evidence clearly established without any shadow of doubt that the accused person sexually ravished the victim girl. He further submittd that the vital prosecution witnesses remain unshaken in cross-examination and their testimony before the Court was in consonance with the statements made by them before the Magistrate. In the judgment also the Trial Judge had held that the prosecution had been able to prove the foundational facts of the case and the legal presumption under Section 29 of the POCSO Act was available against the accused person. This implies that the onus was shifted upon the accused person to show why such presumption could not be available against him. But the accused person failed to discharge such onus either from the evidence led by the prosecution or by adducing independent evidence.

The major issues were with regard to evidence of a child witness and the concept of reverse burden of proof in a criminal trial. The Court in this regard explained that,

A witness is someone who provides astute evidence, which is proof that they have personally heard, seen, smelt, or felt. Competence is sometimes misconstrued with credibility or dependability. Determining competency is not a test of whether or not the witness is giving, or will give, accurate or truthful testimony. Credibility and reliability are factors that the trier of fact considers when deciding how much weight to give the evidence (judge or jury depending upon where the case is being heard). If the child is called as a witness by the prosecution, he or she must have the ability to understand the questions put to him by the defence as well as the prosecution and to provide answers to them which are understandable.

The Court further elaborated the role of child witness in criminal trials according to the Indian Legal Jurisprudence and quoted that the basic test of competence is whether the person is able to understand questions put to him as a witness, and give answers to them which can be understood.

The Court mentioned catena of decisions that with respect to children, no precise age is fixed by law within which they are absolutely excluded from giving evidence on the presumption that they have not sufficient understanding including Panchhi and National Commission for Women v. State of Uttar Pradesh, 1998 CriLJ 3305, Yogesh Singh v. Mahabeer Singh, (2017) SCC 195, The State of Maharashtra v. Bandu, 2018 (11) SCC 163, Sakshi v Union of India, (2004) 5 SCC 518 etc.

The Court was finally of the view that the prosecution has provided and substantiated foundational evidence and has proved its case beyond all reasonable doubt. The appellant/accused neither examined any independent witness nor produced any contra evidence to prove his defence. There has been no discrepancy between the place of occurrence, medical witness, report, and oral evidence of the alleged eye witness. The appeal was accordingly dismissed and order of conviction and sentence under appeal was confirmed.[Raju Roy v. State of West Bengal, 2021 SCC OnLine Cal 2911, decided on 29-09-2021]


Suchita Shukla, Editorial Assistant has reported this brief.


For the Appellant : Md. Zohaib Rauf, Mr Rameez Alam

For the State of West Bengal : Mr Saibal Bapuli, Mr. Bibaswan Bhattacharya

Case BriefsSupreme Court

Supreme Court: In a case where the Trial Court and Punjab and Haryana High Court had shifted the burden of proof on the accused merely for the reason that there has been a rise in the incidents of dacoity, the 3-judge bench of NV Ramana, CJ and Surya Kant* and Hima Kohli, JJ has held that the Trial Court and the High Court have erroneously drawn adverse inference against the accused, in spite of the Prosecution having lamentably failed to adequately dispense with its burden of proof to depict culpability of the accused.

“It may not be wise or prudent to convict a person only because there is rampant increase in heinous crimes and victims are oftenly reluctant to speak truth due to fear or other extraneous reasons.”

Law on recovery of inculpatory material vis-à-vis burden of proof

It may be true that at times the Court can convict an accused exclusively on the basis of his disclosure statement and the resultant recovery of inculpatory material. However, in order to sustain the guilt of such accused, the recovery should be unimpeachable and not be shrouded with elements of doubt.

Circumstances such as,

  • the period of interval between the malfeasance and the disclosure;
  • commonality of the recovered object and its availability in the market;
  • nature of the object and its relevance to the crime;
  • ease of transferability of the object;
  • the testimony and trustworthiness of the attesting witness before the Court and/or other like factors,

are weighty considerations that aid in gauging the intrinsic evidentiary value and credibility of the recovery.

Where the prosecution fails to inspire confidence in the manner and/or contents of the recovery with regard to its nexus to the alleged offence, the Court ought to stretch the benefit of doubt to the accused.

“Its nearly three centuries old cardinal principle of criminal jurisprudence that “it is better that ten guilty persons escape, than that one innocent suffer”. The doctrine of extending benefit of doubt to an accused, notwithstanding the proof of a strong suspicion, holds its fort on the premise that “the acquittal of a guilty person constitutes a miscarriage of justice just as much as the conviction of the innocent”.

Further, the burden to prove the guilt beyond doubt does not shift on the suspect save where the law casts duty on the accused to prove his/her innocence. It is the bounden duty of the prosecution in cases where material witnesses are likely to be slippery, either to get their statements recorded at the earliest under Section 164 Cr.P.C. or collect such other cogent evidence that its case does not entirely depend upon oral testimonies.

Factual Background

  • In the year 2009, four accused persons, including the Appellant were arrested on the basis of secret information received by the police and they were charged under Sections 392, 397 and 120¬B IPC and Section 25 of the Arms Act. The 5th co-accused could not be arrested and was declared a proclaimed offender under Section 82 Cr.P.C.
  • In the eventual trial, 14 witnesses were examined by the Prosecution. No evidence was led by the Defence. The Prosecution argued that the accused conspired together to loot the Complainant, who, they were aware was carrying money for the purchase of a plot in Delhi.
  • The Trial Court noticed that the Accused had failed to provide any explanation as to how they came into possession of the articles, especially the ‘red cloth’ that belonged to the wife of the Complainant and the passbook, which were recovered from the custody of the Appellant.
  • Upon re-appraisal of evidence, the High Court concurred with the findings of the Trial Court and further noted that due to enormous rise in instances of dacoity, the non-identification of the accused in the Court could not be construed as a material consideration where other evidence points towards the commission of the crime to withstand his conviction under Sections 392 and 397 IPC.

Ruling on facts

The Court noticed that,

  • the High Court and the Trial Court failed to take into consideration that the testimony of ASI exhibited no substantial effort made by the police for conducting the search of the residence of the Appellant in the presence of local witnesses. The only independent witness to the recovery was Raldu who was admittedly a companion of the Complainant.
  • the Complainant as well as Raldu, have unambiguously refuted that neither the passbook, nor the ‘red cloth’ was recovered from the possession of the Appellant, as claimed in his disclosure statement.
  • while the Complainant negated his signatures on the recovery memo, on the other hand, Raldu also neither enumerated the recovery memo in the catalogue of exhibited documents, nor did that he affirm to having his endorsement.
  • the recovered articles are common place objects such as money which can be easily transferred from one hand to another and the ‘red cloth’ with ‘Kamla’ embossed on it which can also be easily available in market.
  • the recovery took place nearly a month after the commission of the alleged offence. We find it incredulous, that the Appellant during the entire time period kept both the red cloth and the passbook in his custody, along with the money he allegedly robbed off the Complainant.
  • there is no other evidence on record which even remotely points towards the iniquity of the Appellant.

It was, hence, found that the Prosecution had miserably failed to bring home the guilt of the Appellant and Courts below have been unwittingly swayed by irrelevant considerations, such as the rise in the incidents of dacoity.

“In its desire to hold a heavy hand over such derelictions, the Trial Court and the High Court have hastened to shift the burden on the Appellant to elucidate how he bechanced to be in possession of the incriminating articles, without primarily scrutinizing the credibility and admissibility of the recovery as well as its linkage to the misconduct.”

Noticing that the Courts below have arrived at recording the guilt of the Appellant in absence of any cogent rationale, justifying his conviction, the Court acquitted the appellant of all charges.

[Bijendar v. State of Haryana, 2021 SCC OnLine SC 1028, decided on 08.11.2021]


*Judgment by: Justice Surya Kant

Saket Court
Case BriefsDistrict Court

Saket Courts, New Delhi: Swati Gupta, Metropolitan Magistrate reiterated what is expected of an accused to rebut the statutory presumption against him in cases of cheque dishonour under Section 138 of the Negotiable Instruments Act, 1881.

Brief facts

Complainant and accused had entered into an agreement to sell the property owned by the wife of accused for a total sale consideration of Rs 58 lakhs. The said property was to be purchased in the name of the wife of the complainant.

For the above said purchase complainant made an advance payment of Rs 24 lakhs to the accused. Later, the accused backed out of the deal and was liable to return the amount paid by the complainant as advance. Further, to discharge his liability, in part, the accused issued the cheque for a sum of Rs 5 lakhs in favour of the complainant.

When the complainant presented the cheque in question for encashment at his bank, the said cheque was returned unpaid with remarks “payment stopped by drawer”.

Thereafter, the complainant issued a legal demand notice to the accused, demanding payment of the dishonoured cheque amount. Despite the notice, the amount was not paid within 15 days mandatory payment.

In view of the above background, the present complaint under Section 138 of the Negotiable Instruments Act, 1881 was moved before the Court.

Settled Legal Position of Law

Under Section 138 of the NI Act against the accused, the complainant must prove the following:

(i) the accused issued a cheque on an account maintained by him with a bank.

(ii) the said cheque has been issued in discharge, in whole or in part, of any legal debt or other liability, which is legally enforceable.

(iii) the said cheque has been presented to the bank within a period of three months from the date of cheque or within the period of its validity.

(iv) the aforesaid cheque, when presented for encashment, was returned unpaid/dishonoured.

(v) the payee of the cheque issued a legal notice of demand to the drawer within 30 days from the receipt of information by him from the bank regarding the return of the cheque.

(vi) the drawer of the cheque failed to make the payment within 15 days of the receipt of aforesaid legal notice of demand.

The Court noted that the complainant discharged its initial burden and successfully established the above-stated ingredients of offence under Section 138 of the NI Act against the accused.

Rebuttal of the Mandatory Presumption

It is settled law that the presumptions may be rebutted by the accused either by leading direct evidence and in exceptional cases from the case set out by the complainant himself. The burden of proof was to be discharged by the accused on a preponderance of probabilities.

Further, the presumption under Section 139 of the NI Act cannot be rebutted upon a mere denial. The same can be rebutted by the accused only by leading cogent evidence.

The Court found that admittedly, Rs 24 lakhs were paid by the complainant to the accused towards advance payment for purchase of the subject property, The cancellation agreement specifying the details of the cheque in question was also admittedly, executed between the accused and the complainant.

The cheque in question was issued by the accused to the complainant in discharge of part liability in pursuance of the cancellation agreement.

In the Court’s opinion, the accused miserably failed to rebut the mandatory presumptions under Section 118(a) and 139 of the NI Act even on a preponderance of probabilities, while the complainant succeeded in proving his case beyond reasonable doubt.

Therefore, accused was held guilty and convicted of the offence under Section 138 of the NI Act. [Ramesh Kumar v. Balwant Singh, CT No. 466077 of 2016, decided on 12-10-2021]

Case BriefsSupreme Court

Supreme Court: The bench of Ajay Rastogi and Abhay S. Oka*, JJ has held that when the chain of circumstantial evidence is not complete, falsity of the defence is no ground to convict the accused.

Background 

The ruling came in a case where the appellant was convicted under Sections 302 and 201 IPC for the death of his wife. The prosecution case was that on 18th November 2011, it was reported that the appellant’s wife died due to burn injuries. However, according to the post-mortem report, the cause of death was ‘asphyxia due to pressure around neck by hand and blunt substance’.

The appellant-accused’s case was that none of the witnesses except the official witnesses have supported the prosecution case and that the conviction of the appellant is based solely on the cause of death mentioned in the post-mortem report and that no other material has been relied upon by the Trial Court as well as High Court.

Submissions by the appellant’s counsel:

  • though post-mortem report was available on 18th November 2011, First Information Report was registered belatedly on 25th August 2012.
  • that when the incident constituting the alleged offence occurred, there were other members of the family of the appellant-accused present in the house.
  • the prosecution witnesses have deposed that the appellant and the deceased were leading a normal matrimonial life.
  • the mother of the deceased, has not supported prosecution. She stated in the deposition that the incident of fire took place when the deceased was boiling milk for her child. He pointed out that even PW No.5-a, Shri Mahesh Sah who gave a report of unnatural death on 18th November 2011 did not support the prosecution.

Submitting that a complete chain of events establishing the guilt of the appellant-accused has not been established, the counsel urged that the conviction of the appellant cannot be sustained and deserves to be set aside.

Submissions by State’s counsel:

  • the post-mortem report categorically stated that the cause of death was ‘asphyxia due to pressure around neck by hand and blunt substance’.
  • the burn injuries on the person of the deceased were not ante-mortem.
  • the appellant and the deceased were staying together under the same roof and therefore, Section 106 of the Evidence Act, 1872 will apply.
  • the burden was on the appellant-accused to explain how the death has occurred.

Hence, a chain of circumstances was established by the prosecution against the accused which supports only one hypothesis of the guilt of the appellant.

It was submitted that the failure of the appellant to discharge the burden on him under Section 106 of the Evidence Act is very crucial as the case is based on circumstantial evidence.

Analysis

The Court took note of the elaborate law laid down in Sharad Birdhichand Sarda v. State of Maharashtra, (1984) 4 SCC 116. Here are the relevant excerpts from the judgment:

Five golden principles (Panchsheel) which govern a case based only on circumstantial evidence

(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. There is not only a grammatical but a legal distinction between ‘may be proved’ and “must be or should be proved”. It is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between ‘may be’ and ‘must be’ is long and divides vague conjectures from sure conclusions.

(2) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty,

(3) the circumstances should be of a conclusive nature and tendency,

(4) they should exclude every possible hypothesis except the one to be proved, and

(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.”

When can a false explanation or a false defence be used as an additional link?

Before a false explanation can be used as additional link, the following essential conditions must be satisfied:

(1) various links in the chain of evidence led by the prosecution have been satisfactorily proved,

(2) the said circumstance points to the guilt of the accused with reasonable definiteness, and

(3) the circumstance is in proximity to the time and situation.

If these conditions are fulfilled only then a court can use a false explanation or a false defence as an additional link to lend an assurance to the court and not otherwise. However,

“… falsity of defence cannot take the place of proof of facts which the prosecution has to establish in order to succeed. A false plea can at best be considered as an additional circumstance, if other circumstances point unfailingly to the guilt of the accused.”

Applicability of Section 106 of the Evidence Act

Under Section 101 of the Evidence Act, whoever desires any Court to give a judgment as to a liability dependent on the existence of facts, he must prove that those facts exist. Therefore, the burden is always on the prosecution to bring home the guilt of the accused beyond a reasonable doubt. Thus, Section 106 constitutes an exception to Section 101.

Section 106 of the Evidence Act will apply to those cases where the prosecution has succeeded in establishing the facts from which a reasonable inference can be drawn regarding the existence of certain other facts which are within the special knowledge of the accused. When the accused fails to offer proper explanation about the existence of said other facts, the Court can always draw an appropriate inference.

“When a case is resting on circumstantial evidence, if the accused fails to offer a reasonable explanation in discharge of burden placed on him by virtue of Section 106 of the Evidence Act, such a failure may provide an additional link to the chain of circumstances. In a case governed by circumstantial evidence, if the chain of circumstances which is required to be established by the prosecution is not established, the failure of the accused to discharge the burden under Section 106 of the Evidence Act is not relevant at all. When the chain is not complete, falsity of the defence is no ground to convict the accused.”

Ruling on facts

The Court noticed that neither the prosecution witnesses have deposed to that effect nor any other material has been placed on record to show that the relationship between the appellant and the deceased was strained in any manner. Moreover, the appellant was not the only person residing in the house where the incident took place and it is brought on record that the parents of the appellant were also present on the date of the incident in the house. The fact that other members of the family of the appellant were present showed that there could be another hypothesis which cannot be altogether excluded.

“Therefore, it can be said that the facts established do not rule out the existence of any other hypothesis. The facts established cannot be said to be consistent only with one hypothesis of the guilt of the appellant.”

Coming to the post-mortem report, the Court held that

“… only on the basis of post-mortem report, the appellant could not have been convicted of the offence punishable under Section 302 of IPC and consequently for the offence punishable under Section 201 of IPC.”

The Court, hence, acquitted the appellant from all the charges.

[Nagendra Sah v. State of Bihar, 2021 SCC OnLine SC 717, decided on 14.09.2021]


*Judgment by: Justice Abhay S. Oka

Case BriefsSupreme Court

Supreme Court: Explaining the difference between the degree of proof in a criminal proceedings and departmental proceedings, the bench of Hemant Gupta* and V. Ramasubramanian, JJ has held that the burden of proof in the departmental proceedings is not of beyond reasonable doubt as is the principle in the criminal trial but probabilities of the misconduct.

Here’s the elaborate law laid down by the Supreme Court in this point:

State of Haryana v. Rattan Singh, (1977) 2 SCC 491

In a domestic enquiry the strict and sophisticated rules of evidence under the Indian Evidence Act may not apply. All materials which are logically probative for a prudent mind are permissible. There is no allergy to hearsay evidence provided it has reasonable nexus and credibility.

“It is true that departmental authorities and Administrative Tribunals must be careful in evaluating such material and should not glibly swallow what is strictly speaking not relevant under the Indian Evidence Act. (…) The simple point is, was there some evidence or was there no evidence — not in the sense of the technical rules governing regular court proceedings but in a fair commonsense way as men of understanding and worldly wisdom will accept. Viewed in this way, sufficiency of evidence in proof of the finding by a domestic tribunal is beyond scrutiny.”

Union of India v. P. Gunasekaran, (2015) 2 SCC 610

“In disciplinary proceedings, the High Court is not and cannot act as a second court of first appeal.”

The High Court, in exercise of its powers under Articles 226/227 of the Constitution of India, shall not venture into reappreciation of the evidence. The High Court can only see whether:

(a) the enquiry is held by a competent authority;

(b) the enquiry is held according to the procedure prescribed in that behalf;

(c) there is violation of the principles of natural justice in conducting the proceedings;

(d) the authorities have disabled themselves from reaching a fair conclusion by some considerations extraneous to the evidence and merits of the case;

(e) the authorities have allowed themselves to be influenced by irrelevant or extraneous considerations;

(f) the conclusion, on the very face of it, is so wholly arbitrary and capricious that no reasonable person could ever have arrived at such conclusion;

(g) the disciplinary authority had erroneously failed to admit the admissible and material evidence;

(h) the disciplinary authority had erroneously admitted inadmissible evidence which influenced the finding;

(i) the finding of fact is based on no evidence.

Under Articles 226/227 of the Constitution of India, the High Court shall not:

  • reappreciate the evidence;
  • interfere with the conclusions in the enquiry, in case the same has been conducted in accordance with law;
  • go into the adequacy of the evidence;
  • go into the reliability of the evidence;
  • interfere, if there be some legal evidence on which findings can be based.
  • correct the error of fact however grave it may appear to be;
  • go into the proportionality of punishment unless it shocks its conscience.

Ajit Kumar Nag v. General Manager (PJ), Indian Oil Corpn. Ltd., (2005) 7 SCC 764

  • In criminal law, burden of proof is on the prosecution and unless the prosecution is able to prove the guilt of the accused “beyond reasonable doubt”, he cannot be convicted by a court of law. In a departmental enquiry, on the other hand, penalty can be imposed on the delinquent officer on a finding recorded on the basis of “preponderance of probability”.
  • Acquittal by a criminal court would not debar an employer from exercising power in accordance with the Rules and Regulations in force. The two proceedings, criminal and departmental, are entirely different. They operate in different fields and have different objectives. Whereas the object of criminal trial is to inflict appropriate punishment on the offender, the purpose of enquiry proceedings is to deal with the delinquent departmentally and to impose penalty in accordance with the service rules.
  • In a criminal trial, incriminating statement made by the accused in certain circumstances or before certain officers is totally inadmissible in evidence. Such strict rules of evidence and procedure would not apply to departmental proceedings.

Noida Entrepreneurs Association v. NOIDA, (2007) 10 SCC 385

The criminal prosecution is launched for an offence for violation of a duty, the offender owes to the society or for breach of which law has provided that the offender shall make satisfaction to the public, whereas, the departmental inquiry is to maintain discipline in the service and efficiency of public service.

[Union of India v. Dalbir Singh, 2021 SCC OnLine SC 768, decided on 21.09.2021]


*Judgment by: Justice Hemant Gupta

Know Thy Judge| Justice Hemant Gupta

Case BriefsHigh Courts

Madras High Court: G.R. Swaminathan, J., held that to succeed in a suit for malicious prosecution, the acquittal of the plaintiff alone is not sufficient. Rather, the plaintiff is obliged to prove (i) that the prosecution was without any reasonable and probable cause, and (ii) that it was instituted with a malicious intention, and  (iii) that he suffered damage.

The instant second appeal was filed by the defendants in the suit filed by the plaintiff for malicious prosecution. The plaintiff had questioned the manner in which the local mosque of his area was being administered. The President of the Jamath which managed the mosque was the brother-in-law of Defendant 1, who implicated the plaintiff and his son in a criminal case under Sections 452 and 506(2) IPC. The plaintiff was arrested and detained in custody for more than 24 hours. He was also suspended from service. Subsequently, he was acquitted by the Judicial Magistrate. Following his acquittal, the plaintiff filed the instant suit.

The plaintiff claimed damages of Rs 1.5 lakhs from the defendants. The trial court had dismissed the suit of the plaintiff, but he succeeded before the first Appellate Court which awarded him damages amounting to Rs 1 lakh. Defendants 1 to 6 (all appellants in the instant appeal) were found liable by the first Appellate Court.

While giving relief to Defendants 2 to 6, and dismissing the appeal qua Defendant 1, but at the same time modifying the amount of damages awarded to the plaintiff, the High Court discussed and decided the following points:

1. Suit for malicious prosecution lies against whom?

A suit for malicious prosecution will lie only against that person at whose instigation the proceedings commenced.

The High Court said that the question is who was the prosecutor. In the instant case, it was only Defendant 1 who gave the complaint against the plaintiff and his son. The other defendants no doubt supported the prosecution but they merely figured as witnesses. Defendants 2 to 6 could not be said to have prosecuted the plaintiff. If according to the plaintiff, they had committed perjury, the course of action to be taken against them will have to be different.

The Court held that the plaintiff did not have any cause of action against Defendants 2 to 6. The appeal qua them was allowed.

However, according to the Court, Defendant 1 could not take the same plea. Even though criminal case was based on police report, it was anchored on the complaint given by Defendant 1. Having been the de facto complainant and having played a prominent part in the prosecution, Defendant 1 could not be heard to contend that the suit is not maintainable against him. The Court placed reliance on the Privy Council decision in Balbhaddar Singh v. Badri Sah, 1926 SCC OnLine PC 14.

2. Duty of Civil Court in a suit for malicious prosecution

The case of the prosecution against the plaintiff in the criminal case under Sections 452 and 506(2) IPC ended in acquittal. But, according to the High Court, the Civil Court must undertake an independent enquiry in such cases. It cannot merely borrow the grounds of the acquittal and grant decree in favour of the plaintiff. The burden of proof lies on the plaintiff to show that he was maliciously prosecuted.

3. Shifting of burden of proof

To discharge the burden cast on him, the plaintiff examined himself to depose that the complaint against him was false. According to him, the first defendant was nurturing animosity against the plaintiff for more than one reason.

The High Court said that there is no doubt that the burden of proof lay only on the plaintiff. This burden can never shift. However, the plaintiff cannot be called upon to prove the negative. As regards the non-existence of reasonable and probable cause, the onus will shift to the defendant after the plaintiff asserts in the witness box that the complaint against him was false and after he adduces evidence demonstrating the existence of malice on the part of the defendant.

While on this point, the High Court summarised the principles laid down in Bharat Commerce & Industries Ltd. v. Surendra Nath Shukla, 1965 SCC OnLine Cal 79; and Satdeo Prasad v. Ram Narayan, 1968 SCC OnLine Pat 26.

4. Nature of proof

The High Court observed that a plaintiff in a suit for malicious prosecution need not demonstrate that he was innocent of the charge upon which he was tried. The Privy Council in Balbhaddar Singh v. Badri Sah, 1926 SCC OnLine PC 14 has categorically held so. The plaintiff need not undergo a second agnipariksha. On the other hand, it is the defendant who must discharge the onus once it is shifted to him.

5. Merits of the case

The High Court held that in the instant case, Defendant 1 had miserably failed to discharge the onus cast on him and the plaintiff had proved all the ingredients of malicious prosecution.

The allegation of Defendant 1 was that he had given an earlier complaint against the plaintiff and to force him to withdraw the same, the plaintiff and his son entered his shop on 1-12-2000 at 9 pm. But the earlier complaint was not marked. Since the occurrence spot is a shop, it would have definitely attracted notice and a complaint would have been lodged before the local police immediately thereafter. But, Defendant 1 approached the District Superintendent of Police only on the next day and the written complaint given by Defendant 1 was sent through post to the Police Station concerned and the FIR itself was registered only on 6-12-2000. Also, in support of the criminal charge, except the testimony of Defendant 1 himself, there was no corroboration forthcoming.

In Court’s opinion, the existence of malice was amply established by the plaintiff. On 2-11-2000 the plaintiff has sent a notice to the President of the mosque, who was none other than the brother-in-law of Defendant 1. It was also admitted that the plaintiff asked for accounts and the relationship between the mosque management and the plaintiff was under strain. In this background, the criminal case was registered and the plaintiff was arrested.

A reading of the evidence adduced on either side showed that there were two issues, one concerning the mosque administration and the other concerning the matrimonial dispute of the plaintiff’s son. It was obvious that the mosque management wanted to teach the plaintiff a hard lesson. There was no cause at all for giving the complaint, let alone reasonable and probable cause. The twin reasons mentioned above culminated into a false complaint.

6. Damages

The plaintiff was arrested and was in detention for more than twenty-four hours. He had to seek bail and furnish sureties. He had to undergo the agony of trial. He was suspended from service. The plaintiff obviously incurred expenditure for engaging counsel and attending the court hearings. As a result of the case, his family was also excommunicated. Thus, the plaintiff established that he suffered damage and injury. His reputation was tarnished and he also suffered loss of liberty. He had clearly made out a case for award of damages.

Considering the facts and circumstances, the High Court quantified the compensation payable to the plaintiff at Rs 50,000. Defendant 1 was directed to pay damages as compensation to the plaintiff with interest at the rate of 6% per annum from the date of plaint till the date of payment. [M. Abubaker v. Abdul Kareem, 2021 SCC OnLine Mad 1934, decided on 21-4-2021 ]

Chhattisgarh High Court
Case BriefsHigh Courts

Chhattisgarh High Court: P. Sam Koshy J., dismissed the petition stating that no interference is required at this juncture keeping in mind the settled position of law.

The facts of the case are such that Petitioner was working with the Respondents as Minig Sirdar, Grade-3. An FIR was lodged against the Petitioner and the Central Bureau of Investigation (CBI) registered a criminal case against him for the offence punishable under Sections 120-B, 420, 468, 471 of the Indian Penal Code i.e. IPC as well as under Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act i.e PCA and the Petitioner is being prosecuted before the Special Judge, CBI, Dhanbad. Meanwhile, the employer, i.e., the Respondents has initiated a departmental enquiry against the Petitioner which is under challenge in the present Writ Petition.

Counsel for the petitioners submitted that the witnesses in both the cases, i.e., the criminal case as also in the departmental enquiry, would be the same and in the event if the Petitioner is made to disclose his defence before the departmental authorities first, it may have an adverse bearing on the outcome of the criminal case wherein evidence would get adversely affected.

The court relied on judgment S. Sreesanth v. Board of Control for Cricket in India, 2019 (4) SCC 660 and Karnataka Power Transmission Corporation Limited v. C. Nagaraju, 2019 (10) SCC 367 wherein it was held that “Acquittal by a criminal court would not debar an employer from exercising the power to conduct departmental proceedings in accordance with the rules and regulations. The two proceedings, criminal and departmental, are entirely different. They operate in different fields and have different objectives. In the disciplinary proceedings, the question is whether the Respondent is guilty of such conduct as would merit his removal from service or a lesser punishment, as the case may be, whereas in the criminal proceedings, the question is whether the offences registered against him under the PC Act are established, and if established, what sentence should be imposed upon him. The standard of proof, the mode of inquiry and the rules governing inquiry and trial in both the cases are significantly distinct and different. It is settled law that the acquittal by a Criminal Court does not preclude a Departmental Inquiry against the delinquent officer. The Disciplinary Authority is not bound by the judgment of the Criminal Court if the evidence that is produced in the Departmental Inquiry is different from that produced during the criminal trial. The object of a Departmental Inquiry is to find out whether the delinquent is guilty of misconduct under the conduct rules for the purpose of determining whether he should be continued in service. The standard of proof in a Departmental Inquiry is not strictly based on the rules of evidence. The order of dismissal which is based on the evidence before the Inquiry Officer in the disciplinary proceedings, which is different from the evidence available to the Criminal Court, is justified and needed no interference by the High Court.”

 In the case of Shashi Bhusan Prasad v. Inspector General, CISF, 2019 (7) SCC 797 wherein it was held that “19. We are in full agreement with the exposition of law laid down by this Court and it is fairly well settled that two proceedings criminal and departmental are entirely different. They operate in different fields and have different objectives. Whereas the object of criminal trial is to inflict appropriate punishment on an offender, the purpose of enquiry proceedings is to deal with the delinquent departmentally and to impose penalty in accordance with the service Rules. The degree of proof which is necessary to order a conviction is different from the degree of proof necessary to record the commission of delinquency. Even the rule relating to appreciation of evidence in the two proceedings is also not similar. In criminal law, burden of proof is on the prosecution and unless the prosecution is able to prove the guilt of the accused beyond reasonable doubt, he cannot be convicted by a Court of law whereas in the departmental enquiry, penalty can be imposed on the delinquent on a finding recorded on the basis of ‘preponderance of probability’. Acquittal by the Court of competent jurisdiction in a judicial proceeding does not ipso facto absolve the delinquent from the liability under the disciplinary jurisdiction of the authority. This what has been considered by the High Court in the impugned judgment in detail and needs no interference by this Court.

XXX XXX XXX

  1. The judgment in G.M. Tank case (supra) on which the learned counsel for the appellant has placed reliance was a case where this Court had proceeded on the premise that the charges in the criminal case and departmental enquiry are grounded upon the same sets of facts and evidence. This may not be of any assistance to the appellant as we have observed that in the instant case the charge in the criminal case and departmental enquiry were different having no nexus/corelationship based on different sets of facts and evidence which has been independently enquired in the disciplinary proceedings and in a criminal trial and acquittal in the criminal proceedings would not absolve the appellant from the liability under the disciplinary proceedings instituted against him in which he had been held guilty and in sequel thereto punished with the penalty of dismissal from service.

 Based on facts, observations and authoritative judgments Court held that it would not be proper to exercise its extraordinary power under Article 226 of the Constitution of India to interfere with the disciplinary proceedings initiated against the Petitioner.

In view of the above, petition was dismissed.[Prayag Prasad v. South Eastern Coal Fields Limited, 2020 SCC OnLine Chh 1449, decided on 24-11-2020]


Arunima Bose, Editorial Assistant has put this story together

Case BriefsHigh Courts

Bombay High Court: Vibha Kankanwadi, J., reversed the acquittal of the respondent-accused holding him guilty of having committed an offence under Section 138 (dishonour of cheque) of the Negotiable Instruments Act, 1881.

Facts on record

The complainant had come with a case wherein he stated he had friendly relations with the accused. Since the accused was in need of money to purchase immovable property, therefore he requested the complainant to extend the amount of Rs 15,00,000 and Rs 6,00,00 which was extended by the complainant.

In regard to the above legal enforceable debt or liability, two cheques were issued.

On depositing the above cheques, both were dishonoured for the reason “refer to drawer”.

In light of the above circumstances, the complainant filed two separate complaints and Magistrate on taking into consideration the above said facts, acquitted the accused.

In view of the above, the present appeal has been filed.

Advocate for the complainant relied on the decision of Vijay v. Laxman, 2013 STPL (DC) 679 SC, wherein it was held that:

“The burden of proving the consideration for dishonour of cheque is on the complainant, but the burden of proving that a cheque had not been issued for discharge of a legally enforceable debt or liability is on the accused. If he fails to discharge the said burden he is liable to be convicted.”

In view of the above decision, Complainant’s Counsel submitted that trial judge committed illegality and the decision was in view of the legal position and therefore the appeal deserved to be allowed.

Analysis, Law and Decision

Whether the complainant has discharged the initial burden to prove that he had advanced loan to the accused?

With regard to the amount of Rs 15,00,000, it was held that as regards the said amount, the complainant discharged the initial burden of proof that he has advanced loan to the accused.

In his statement under Section 313 of the CrPC, accused did not state that he was holding such account, on which the cheque was issued by the complainant and he did not specifically state that he had not received the amount through the said account.

Bench stated that the complainant had proved that it was legally enforceable debt or liability, which was to the extent of Rs 15,00,000 as against the accused.

As regards the other disputed cheque i.e. amount of Rs 6,00,000, complainant stated he had given the said amount by cash.

In this case, also it can be said that the complainant has discharged the initial burden of proof that he had advanced amount of Rs 6,00,000 as a loan to the accused.

In the instant case, the accused did not deny his signature on the disputed cheques. Though he came with a defence, as to how those cheques went into the possession of the complainant, but as aforesaid that defence is unbelievable.

Bench stated that even if for the sake of arguments we admit that the disputed cheques were blank cheques; yet, when accused admits his/her signatures on the disputed cheques, then the legal position on this point is also clear that the complainant would get an authority under Section 20 of Negotiable Instruments Act to complete the incomplete cheque.

When now the position stands that the complainant has discharged the initial burden, accused admits his signature on the disputed cheques; then presumption under Section 139 of the Negotiable Instruments Act definitely gets attracted in favour of the complainant.

The complainant was the ‘holder of cheques’ and therefore, was entitled to present the same for encashment. Both the cheques were dishonoured.

Statutory notices issued by the complainant were complied with, and therefore, Court held that the accused is guilty of committing the offence punishable under Section 138 of the Negotiable Instruments Act.

Magistrate did not scan the evidence properly with sound legal principles and therefore, interference of this Court was required.

Bench relied on the Supreme Court’s decision in Govindaraju v. State, (2012) 4 SCC 722, with regard to the powers of the Appellate Court, wherein it was observed that:

“The law is well-settled that an appeal against an order of acquittal is also an appeal under the Code of Criminal Procedure, 1973 and an appellate Court has every power to re-appreciate, review and reconsider the evidence before it, as a whole. It is no doubt true that there is presumption of innocence in favour of the accused and that presumption is reinforced by an order of acquittal recorded by the trial Court. But that is the end of the matter. It is for the Appellate Court to keep in view the relevant principles of law to re-appreciate and reweigh the evidence as a whole and to come to its own conclusion on such evidence, in consonance with the principles of criminal jurisprudence”.

Honest drawers’ interest who issue cheques is safeguarded in the Act itself.

In Dalmia Cement (Bharat) Ltd v. Galaxy Traders & Agencies Ltd., (2001) 6 SCC 463, the Supreme Court has explained the scope of offence under Section 138 of the NI Act.

In R. Vijayan v. Baby, (2012) 1 SCC 260, Supreme Court held that while awarding compensation in matters under Section 138 NI Act, interest can be awarded @9% p.a.

Court stated that in view of the above decisions, awarding jail sentence to the respondent/accused may not be in the interest of justice.

Bench also added to its decision that the appellant would also be interested in getting his amount back. Therefore, payment of compensation under Section 357 of the Code of Criminal Procedure to the complainant would be in the interest of justice.

The punishment that can be awarded for an offence under Section 138 of Negotiable Instruments Act is “ imprisonment for a term which may extend to two years, or with fine which may extend to twice the amount of the cheque, or both” (stress supplied by me).

Since the complaint was filed in 2013 after the statutory notice. The amount became due to complainant after the date of the notice.

Some amount needs to be given to complainant above the cheque amount towards interest.

Since the rate of interest in banks has gone down nowadays, and therefore, the said rate cannot be equal to the rate granted in R. Vijayan’s case.

After taking into consideration all the above pronouncements it would be in the interest of both the parties to impose fine of Rs 18,00,000 and Rs 8,00,000 in respective cases and to direct the amount of Rs 17,50,000 and Rs 7,50,000 to be paid to complainant as compensation under Section 357(1) of the Code of Criminal Procedure. Deposit time will not be extended. [Kiran Rameshlal Bhandari v. Narayan Purushottam Sarada, 2020 SCC OnLine Bom 3562, decided on 07-12-2020]


Advocates who appeared for the matter:

Shyam C. Arora, Advocate for the appellant
Amol Kakade, Advocate h/f C.D. Fernandes, Advocate for respondent

Case BriefsSupreme Court

Supreme Court: The bench of AM Khanwilkar* and Dinesh Maheshwari, JJ has held that for invoking Section 17 of the Limitation Act, 1963, two ingredients i.e. existence of a fraud and discovery of such fraud, have to be pleaded and duly proved and that in case of failure to establish the existence of fraud, there is no occasion for its discovery.


Background of the case


The dispute dating back to 1990 pertains to a General Power of Attorney (GPA) purported to have been executed by the plaintiff in favour of defendant No. 1 and consequently sale deeds executed by defendant No. 1 as an attorney of the plaintiff. However, according to the plaintiff, reposing complete trust in her step brothers to step-brothers, she had signed on blank papers under the guise of preparation and processing of documents for the purpose of getting the estate left behind by their father mutated in their names.

After analysing the evidence on record, the trial Court dismissed the suit filed by the plaintiff and this order was upheld by the appellate Court. The High Court, however, reversed the concurrent opinions of two Courts and held that the trial Court as well as the first appellate Court committed manifest error and misapplied the settled legal position.

Challenging the High Court’s decision before the Supreme Court, the defendants argued that interference by the High Court was unwarranted as the same did not involve any substantial question of law. On merits, the aforesaid defendants contended that the evidence of the plaintiff was self­-contradictory, as she first claimed that her signatures were taken on blank papers and then denied her signatures occurring on the 1990 GPA. The plea that the signatures were taken on blank papers was not substantiated as the 1990 GPA was executed on stamp papers.


Analysis


The Court held that the diverse grounds urged by the plaintiff in disputing the 1990 GPA and the sale deeds were unsubstantiated and untenable. Here are the key factors taken into consideration by the Court:

  • As the record revealed that the disputed documents were registered, the Court, guided by the settled legal principle that a document is presumed to be genuine if the same is registered, was of the opinion that the initial onus was on the plaintiff, who had challenged the stated registered document.
  • As the execution of the 1990 GPA and the sale deeds in the present cases was denied by the plaintiff, it became necessary for the plaintiff to examine the attesting witnesses of the disputed documents to establish her allegation about its non-execution. However, both the attesting witnesses were not examined.

“The trial Court had justly placed the initial burden of proof upon the plaintiff as it was her case that the subject documents were forged or product of fraud and moreso because the documents bore her signature. The first appellate Court did not elaborate on that aspect. Even assuming that the burden had shifted upon the defendants, the witness identifying signatures of the dead attesting witness was examined by the defendants. Therefore, the documents stood proved and the burden was duly discharged by the defendants.”

  • The evidence of plaintiff’s deed writer (PW4) unveiled that the stated documents were prepared on the basis of instructions of the plaintiff and had been duly executed by her in the presence of the attesting witnesses.

“… the trial Court and the first appellate Court had relied upon the evidence of PW4. The High Court, however, proceeded on surmises and conjectures and took a view which is perverse and tenuous.   In that, the ground on which the High Court rejected the evidence of PW4 is that he was known to the defendant No. 4 since his school days. We do not find it to be a correct approach to disregard  the credible testimony of the witness examined by the plaintiff herself (without declaring him as a hostile witness) and especially when it had come on record that the said scribe is a regular deed writer at  the  Tehsil  complex,  Dasuya.  Notably, PW4 had not been declared hostile at the instance of the plaintiff and as such, this part of his testimony would be staring at the plaintiff.”

  • Since the attesting witness had proved the execution of the sale deeds, the primary onus upon the plaintiff had not shifted unto the defendants. Further, the plaintiff was obliged to rebut the positive evidence produced by the defendants regarding payment of consideration amount to the plaintiff; but also ought to have independently proved her case of non-receipt of the consideration amount.

Ruling


Concluding that the plaintiff failed to prove that her signatures on the subject documents are forged, the Court reiterated that the standard of proof required in a civil dispute is preponderance of probabilities and not beyond reasonable doubt.

“In the present cases, though the discrepancies in the 1990 GPA are bound to create some doubt, however, in absence of any tangible evidence produced by the plaintiff to support the plea of fraud, it does not take the matter further. Rather, in this case the testimony of the attesting witness, scribe and other independent witnesses plainly support the case of the defendants. That evidence dispels the doubt if any; and tilt the balance in favour of the defendants.”

[Rattan Singh v. Nirmal Gill, 2020 SCC OnLine SC 936, decided on 16.11.2020]


*Justice AM Khanwilkar has penned this judgment 

Case BriefsForeign Courts

Court of Appeal of Sri Lanka: This appeal was filed before a Bench of Mahinda Samayawardhena, J., for ejectment of defendants from the land of the plaintiff.  

Facts of the case were that the plaintiff filed this action against defendants for a declaration of title to the land, ejectment of the defendants from the land and for damages. Defendants opposed plaintiff’s action and claimed that the plaintiff was holding property in trust for defendants, thus defendants had acquired prescriptive title to the land. Plaintiff’s action was dismissed by District Judge and passed judgment in favour of defendants to have prescribed to the land. Hence, this appeal was filed. District court had come to a finding that the defendants came into the land with the leave and licence of the plaintiff and from the date on which they came into possession of the land, they have started prescriptive possession against the plaintiff. 

Court of Appeal found the above finding of District Judge to be untenable. Permissive possession, however long it may be, was not prescriptive possession and to claim it, compelling cogent evidence was required. The time when an individual started adverse possession is a sine qua non for claim of prescription. Court noted that when the legal title to the premises is admitted or proved to be in the plaintiff, the burden of proof is on the defendant to show that he is in lawful possession. Since, defendant in the instant case had failed to discharge the onus to prove, the judgment of District Judge was set aside[Mohamed Shariff Mohamed Sanoon v. Mohamed Yoosuf Junaid, Case No. CA/417/1998/F, decided on 18-01-2019]

Case BriefsHigh Courts

Madhya Pradesh High Court: This appeal was filed before a 2-Judge Bench comprising of Sujoy Paul and Nandita Dubey, JJ., against the order passed by trial court convicting appellant for the commission of offences under Sections 302 and 201 of Penal Code and sentencing her to life imprisonment.

Facts of the case were such that the deceased was the husband of appellant whose dead body was found inside a trunk in their house. After which trial took place where appellant was convicted and sentenced for the murder of her husband. Trial Court mainly relied on the testimony of deceased daughter and medical evidence on record which showed throttling as the reason for deceased death. The contention raised by Chetan Jaggi, Advocate appearing as amicus curiae for appellant was that there were no eye-witness and the sentence was passed on the basis of circumstantial evidence where the incident was not pre-planned.

High Court after going through the testimony of daughter of deceased, postmortem report viewed that deceased died due to throttling. Court found no explanation by the appellant as to how the dead body got into the trunk in a room only in access of appellant and deceased and once the prosecution has been able to show that at the relevant time, the room was in exclusive possession of the deceased and appellant, the burden of proof lies on the appellant under what circumstances the death of her husband occurred. Appellant failed to discharge this onus to prove. Therefore, the appeal was dismissed and it was found that the trial court had rightly convicted the appellant under Sections 302 and 201 of Penal Code. [Sudama Bai v. State of M.P., 2018 SCC OnLine MP 904, decided on 10-12-2018]

Case BriefsHigh Courts

Bombay High Court: A Division Bench comprising of S.S. Shinde and A.S. Gadkari, JJ., allowed a criminal appeal filed against the judgment of the trial court whereby the appellant was convicted for murder under Section 302 IPC.

The appellant and the deceased were living in a live-in-relationship. Both were married to different spouses. The allegation against the appellant was that on the fateful day, he attacked the deceased with a hammer on her head and this resulted in her death. It was alleged by the prosecution that the appellant was fed up by the frequent bickering between him and the deceased as she did not allow him to meet his wife and children. Thus, the appellant attacked the deceased and murdered her. The appellant was tried and convicted by the trial court under Section 302. Aggrieved thereby, the instant appeal was filed.

The High Court, at the outset, noticed that appellant’s conviction was based on circumstantial evidence. It was reiterated that for basing a conviction on circumstantial evidence, it is necessary that all the circumstances must point towards guilt only of the accused and nothing else. Furthermore, the main ground for the conviction was that appellant failed to rebut the presumption under Section 106 Evidence Act exclusively within his knowledge. The Court made reference to Shambhu Nath Mehra v. State of Ajmer, AIR 1956 SC 404, wherein it was held that Section 106 is not a substitute for the burden of proof that rests upon the prosecution. It was noted that in the instant case there was no evidence on record even to remotely suggest that the appellant was in fact last seen in the company of the deceased either at the time of noticing the dead body or prior thereto. In absence of such evidence, the Court held that the failure of the appellant to offer any explanation under Section 106 could not be used against him to base his conviction. The Court further held that the case of the prosecution was based on mere presumption the appellant being in the same room with the deceased at the time of her death. In view of the aforesaid appellant’s conviction was set aside, and the appeal was allowed. [Ulhas Sudam Gorhe v. State of Maharashtra,2018 SCC OnLine Bom 3389, decided on 12-10-2018]