Case BriefsSupreme Court

Supreme Court: A 3-Judge Bench of N.V. Ramana, CJI and A.S. Bopanna and Hrishikesh Roy, JJ. upheld the judgment of the Madras High Court passed in a second appeal whereby it had reversed the order of the first appellate court granting injunction in favour of the appellant−plaintiff in a property dispute. Rejecting the contentions of the appellant regarding propriety of High Court’s exercise of jurisdiction in second appeal under Section 100 CPC, the Supreme Court observed:

“[M]erely because the High Court refers to certain factual aspects in the case to raise and conclude on the question of law, the same does not mean that the factual aspect and evidence has been reappreciated.”

The Supreme Court was deciding an appeal filed against the judgment of the Madras High Court passed in the second appeal preferred by the respondent−defendant. The plaintiff had filed an original suit seeking perpetual injunction to restrain the defendant from interfering with his peaceful possession and enjoyment of the suit property. The plaintiff claimed that he had been enjoying the suit property for a period of forty years by paying kist. The defendant disputed the right claimed over the suit property by the plaintiff.

The trial court dismissed the suit. The plaintiff preferred a regular first appeal under Section 96 CPC before the first appellant court. Placing much reliance on the kist receipts produced by him, the first appellate court concluded that the plaintiff was in possession of the suit property. Thereafter, the defendant filed a second appeal under Section 100 CPC before the High Court. The High Court framed a substantial question of law, as to whether the suit without the prayer for declaration is maintainable when especially the title of the plaintiff is disputed. Having taken note of rival contentions, the High Court concluded that the substantial question of law had substance, and therefore set aside the judgment of the first appellate court. Aggrieved, the plaintiff approached the Supreme Court.

The appellant contended that the parameter for interference by the High Court in the second appeal under Section 100 CPC is well established and the High Court cannot travel beyond the same and advert to reappreciate the evidence on factual aspects. It was contended that when the first appellate court, which was the last court for appreciated of facts, had recorded its finding, the same could not be interfered by the High Court on reappreciation of evidence.

Summarising the legal position on the subject, the Supreme Court reasserted the position that in a second appeal under Section 100 CPC there is very limited scope for reappreciating the evidence or interfering with findings of fact rendered by trial court or the first appellate court, and therefore it was necessary to see whether the High Court in the instant case breached the settled principle.

The Supreme Court noted that the findings by the trial court and the first appellate court were divergent. The trial court concluded that the kist receipts would not establish plaintiff’s possession, whereas the first appellate court in fact placed heavy reliance solely on the kist receipts. The Court observed:

“When such divergent findings on fact were available before the High Court in an appeal under Section 100 CPC though reappreciation of the evidence was not permissible, except when it is perverse, but it was certainly open for the High Court to take note of the case pleaded, evidence tendered, as also the findings recorded by the two courts which was at variance with each other and one of the views taken by the courts below was required to be approved.”

The Court said that question of law for consideration will not arise in abstract but in all cases will emerge from the facts peculiar to that case and there cannot be a strait jacket formula.

Even otherwise, the Supreme Court found that the plaintiff’s possession of the suit property was not established. Further, the Court was of the view that the first appellate court misdirected itself and proceeded at a tangent by placing burden on the defendant.

In such view of the matter, the Supreme Court held that it would not be appropriate to interfere with the judgment of the High Court which was in consonance with the fact situation in the case. The appeal was dismissed. [Balasubramanian v. M. Arockiasamy, 2021 SCC OnLine SC 655, decided on 2-9-2021]


Tejaswi Pandit, Senior Editorial Assistant has reported this brief.

Case BriefsSupreme Court

Supreme Court: Bench of Sanjay Kishan Kaul and Hrishikesh Roy, JJ., expressed that,

Key characteristic of thumb impression is that every person has a unique thumb impression. Forgery of thumb impressions is nearly impossible. 

Merely because the testator chose to append his thumb impression, adverse presumption on genuineness of the cancellation deed cannot be drawn.

Instant appeal arose out of the decision of the Patna High Court whereby the appeal filed by the probate applicant was allowed in his favour by concluding that the Will favouring Sarjug Singh was not cancelled. Hence the appellate Court reversed the trial court’s decision which held that the applicant was disentitled to get the Will probated as the same was revoked.

High Court disbelieved the registered deed of cancellation dated 2-2-196 (Exbt C) whereby, the Exbt 2 Will, was revoked by the testator. 

Factual Matrix

Rajendra Singh (since deceased) executed a Will on 14-09-1960 in favour of the applicant Sarjung Singh.

The executant died issueless leaving behind his sister Duler Kuer, wife of Thakur Prasad Singh and nephew Yugal Kishore Singh and also the probate applicant Sarjug Singh.

Applicant’s case was that the testator’s wife died long ago and therefore Rajendra Singh who was issueless bequeathed his property in village Pojhi Bujurg and Pojhi Kapoor, District Saran, Bihar by executing the Will favouring respondent Sarjug Singh (since deceased).

It is relevant to state that the validity of the Will in favour of the applicant Sarjug Singh was never seriously challenged but the objectors pleaded that the concerned Will was cancelled by a registered deed on 02-02-1963 (Exbt. C) by the testator himself. The applicant however claims that the testator was in very poor health, paralytic and was not in a position to attend the Sub­Registrar’s office on 02-02-1963 to execute the registered cancellation deed (Ext. ‘C’). The applicant also challenged the genuineness of the testator’s thumb impression on the cancellation deed of the Will.

High Court addressed the core issue of whether the testator had cancelled the Will. High Court granted the probate and reversed the finding of the Trial Court. Subsequent purchasers of the assets who supported the objector’s case in the probate proceedings, have then filed the present appeal.

Analysis, Law and Discussion

Bench stated that the merit of claim of either party in the present matter will hinge around the core issue as to Whether Rajendra Singh had actually revoked the Will in favour of Sarjung Singh and his physical and mental capacity to execute the Cancellation Deed and also whether thumb impression of Rajendra Singh on the registered document is genuine or not.

 Further, it was noted that in allowing the appeal of the probate applicant, the High Court referred to the health condition of Rajendra Singh who suffered from paralysis before his death and had opined that it would not be possible for the testator to visit the sub-registrar’s office, to cancel the Will.

Bench stated that the High Court failed to give due weightage to the evidence that led to the genuineness of the cancellation deed. Instead, erroneous presumption was drawn on impersonation and incapability of the testator, to visit the office of the sub-registrar to register the cancellation deed.

Testator’s thumb impression on the cancellation deed

On the stated issue, all the four deeds executed by Rajendra Singh in his lifetime, contained his thumb impression and not his signature. Therefore, adverse presumption on genuineness of the cancellation deed cannot be drawn merely because the testator chose to append his thumb impression.

Further, the handwriting report clearly indicated that the thumb impression on all the documents placed before the expert’s opinion were of the same person i.e. of Rajendra Singh. Since the said Ext. B was marked in Court, without objection from the applicant, the genuineness of the same cannot be allowed to be questioned before the appellate Court.

In Court’s opinion, a contrary inference was erroneously drawn by the High Court by referring to the health condition of the testator, when the revocation deed was registered.

Supreme Court held that genuineness of the Cancellation deed cannot be doubted only due to the fact that same was not signed and Rajendra as a literate person, affixed his thumb impression.

Implication of the conduct of the objectors, who did not produce the original deed of cancellation

Bench analysed and stated that objectors failed to take any steps to produce the original deed of cancellation. On the said, probate applicant neither objected to production of certified copy nor insisted on production of the original cancellation deed.

In view of the above scenario, where no protest was registered by the probate applicant against production of certified copy of the Cancellation Deed, he cannot later be allowed to take up the plea of non-production of original cancellation deed in course of the appellate proceeding.

Mode of Proof

Supreme Court made it clear that plea regarding mode of proof cannot be permitted to be taken at the appellate stage for the first time, if not raised before the trial Court at the appropriate stage.

Reasoning for the above was to avoid prejudice to the party who produced the certified copy of an original document without protest by the other side.

Hence, allowing objection as stated above to be raised during the appellate stage would put the party (who placed certified copy on record instead of original copy) in a jeopardy and would seriously prejudice the interests of that party.

Adding to the above, it was emphasized that it would also be inconsistent with the rule of fair play as propounded by Justice Ashok Bhan in the case of R.V.E Venkatachala

While reaching the conclusion, Court opined that the High Court had erred by ignoring the material evidence in disbelieving the cancellation deed and on that score declaring that the applicant was entitled to grant of probate of the Will.

Given the fact that Probate applicant never raised any objection regarding the mode of proof before the trial court, there was no occasion for the High Court to say that it was the duty of defendant to produce original deed of cancellation.

Lastly, the Bench expressed that Trial Court was right in holding that Rajendra was medically fit and had cancelled the Will himself. It was also seen that the evidences of the relevant OWs withstood the scrutiny of the trial court and those remained unshaken and should be trusted.

Considering the omission of the probate applicants to raise objection regarding mode of proof before the trial court, merit was found in the case of the objectors.

In view of the above discussion, present appeal was allowed., while setting aside the impugned order of the Delhi High Court. [Lacchmi Narain Singh (D) v. Sarjug Singh (Dead), 2021 SCC OnLine SC 606, decided on 17-08-2021]

Case BriefsHigh Courts

Delhi High Court: Asha Menon, J., decided a matter concerning dishonour of cheque.

Petitioner had filed a suit for recovery of Rs 1,65, 75,000 under Order XXXVII of the Code of Civil Procedure, 1908.

Background

Managing Director and other Directors of the respondent/defendant persuaded the petitioner/plaintiff to give friendly loans at an interest @18% per annum. Petitioner and his wife gave Rs 18,00,000 from the bank account to Hari Om Anand as the Managing Director of the respondent/defendant.

At the request of Hari Om Anand, the petitioner/plaintiff also started looking after the legal consultation work of the respondent/defendant and the Managing Director and other Directors. Subsequently, the petitioner/plaintiff gave another friendly loan of Rs 3,20,00,000 from his bank account to Hari Om Anand and continued to take care of the legal work.

Further, Petitioner/Plaintiff submitted that 6 cheques were issued by Hari Om Anand. The said cheques were dishonoured on presentation due to insufficient funds. The petitioner/plaintiff filed a criminal case under Section 138 NI Act.

The above was preceded by a notice to which no reply was sent.

In an appearance respondent/defendant offered to furnish a corporate guarantee duly signed by the Managing Director and duly authorized by the Board Resolution relating to immovable properties, for securing the suit amount and the restrain order was filed.

Present petition was filed against two orders of the trial court.

Vide an Order dated 28-7-2020, this Court observed that the trial Court had erred in not securing the amount of Rs 1.5 crores as directed in the order dated 24-12-2019 and ought to have asked the respondent/defendant to submit documents of a property of which the title was clear or a bank certificate recording a no objection to the creation of a second charge on the property to the extent of Rs 1.5 crores ought to have been furnished.

Vide orders dated 4-12-2020, this Court had after noting the letter of the Punjab National Bank, Gymkhana Branch, Meerut, U.P. that a lien had been created in the sum of Rs 1.50 crores, directed that the said amount of Rs 1.50 crores be deposited in an interest-bearing fixed deposit. This FDR had since been deposited in the Registry of this Court as was noted in the orders of this Court dated 5-03-2021 and 8-03-2021

Further, the petitioner’s counsel submitted that trial court had wrongly granted leave to defend the respondent in a case where the respondent/defendant had raised no triable issues.

Adding to the above, it was stated that trial court had proceeded in a wrong direction as the loan transactions between the petitioner/plaintiff and the respondent/defendant were different transactions and had nothing to do with the payment of Rs.1.50 crores, which was towards the legal fees of the petitioner/plaintiff and for which the invoice had been raised.

There was no dispute in that the petitioner/plaintiff had acted as a legal advisor to the respondent/defendant.

There was no document to establish a lawyer-client relationship, no retainership agreement had been filed and therefore, the claim of the petitioner/plaintiff was suspicious that he was entitled to a sum of Rs 1.50 crores towards such legal assistance.

As regards the question whether leave to defend has been rightly granted to the respondent/defendant or not, the facts that prevailed upon before the learned Trial Court were that the petitioner/plaintiff himself has referred to loans having been given to the respondent/defendant by way of bank transfer.

When the respondent/defendant had challenged the claim of the petitioner/plaintiff that he had acted as legal advisor to them and, therefore, the invoice raised was for a fee, this fact too would have to be proved.

In application for leave to defend, the respondent/defendant it was averred that the petitioner/plaintiff had claimed to have been providing legal assistance to the respondent/defendant since the year 2000.

With respect to the submissions made by the counsel for the petitioner/plaintiff, on taking cognizance of an offence by the MM under Section 138 of the N.I. Act automatically a decree against the respondent/defendant should follow, cannot be accepted, as cognizance leads to trial and the accused can also get acquitted.

Secondly, on the one hand, the petitioner/plaintiff claims that the cheques were towards loans which were separate transactions and on the other hand, wants this Court to draw conclusions on that basis, that the signatures on the cheques were admitted and the MM had taken cognizance of the case to decree this suit.

Bench stated that in light of the above submissions, it is indeed a matter of trial as to what was the liability of the respondent/defendant towards the petitioner/plaintiff and towards what transaction or service rendered by the petitioner/plaintiff, that is, as a lender or as a legal advisor, would he be entitled to the suit amount.

High Court held that the Trial Court was right in observing that the defence taken was not moonshine and disclosed triable issues which required inquiry. Leave to defend had to be granted in the light of these varying stands taken by the petitioner/plaintiff in different proceedings.

in the light of the previous orders of this Court and the deposit of the FDR for a sum of Rs.1.5 crores with the Registry of this Court, the leave to defend granted to the respondent/defendant is not unconditional and does not work to the disadvantage of the petitioner/plaintiff.

In view of the above, petition was dismissed. [Sarvesh Bisaria v. Anand Nirog Dham Hospital (P) Ltd., 2021 SCC OnLine Del 3859, decided on 30-7-2021]


Advocates before the Court:

For the Petitioner; Vivek Kumar Tandon, Advocate

For the Respondent: Sanchit Garga, Advocate

Case BriefsHigh Courts

Allahabad High Court: Vivek Varma, J., held that factum of disputed service of notice requires adjudication on the basis of evidence and the same can only be done by the trial court.

In the instant matter, OP had filed a complaint under Section 138 of the Negotiable Instruments Act against the applicant as the cheques issued by the applicant was returned by the bank with the remark “fund insufficient”.

A legal notice in view of the above-stated circumstances was sent. There is a presumption of service of the said notice and despite service of notice, the applicant did not make any payment nor sent any reply.

Analysis, Law and Decision

Bench stated that Section 138 NI Act was considered by the Supreme Court in C.C. Alavi Haji v. Palapetty Muhammed, (2007) 6 SCC 555, wherein the presumption under Section 114 of the Evidence Act and Section 27 of the General Clauses Act was enunciated.

The above-stated case was followed by the Supreme Court in Ajeet Seeds Limited v. K. Gopala Krishnaiah, (2014) 12 SCC 685 and held that absence of averments in the complaint about service of notice upon the accused’s is the matter of evidence.

Noting the settled legal position in the above cases, Bench expressed that the complaint cannot be thrown at the threshold even if it does not make a specific averment with regard to service of notice on the drawer on a given date. Complaint, however, must contain basic facts regarding the mode and manner of issuance of notice to the drawer of the cheque.

Supreme Court’s decision in Subodh S. Salaskar v. Jayprakash M. Shah, (2008) 13 SCC 689, was relevant to the present matter.

High Court elaborated that, notice being sent on 19-09-2012, if the presumption of service of notice within a reasonable time is raised, shall be deemed to have been served, at the best within a period of 30 days from the date of issuance. Applicant was required to make payment in terms of the said notice within 15 days thereafter.

The factum of disputed service of notice requires adjudication on the basis of evidence and the same can only be done and appreciated by the trial court and not by this Court under the jurisdiction conferred by Section 482 CrPC.

However, since the complaint case was pending since the year 2014, as per the mandate of the Act the proceedings under Section 138 NI Act ought to be concluded within 6 months.

Hence, the Court below was directed to expedite the hearing of the complaint case. [Anil Kumar Goel v. State of U.P., 2021 SCC OnLine All 410, decided on 7-06-2021]


Advocates before the Court:

Counsel for Applicant:- Anand Prakash Dubey, Pradeep Kumar Rai, Saurabh Trivedi

Counsel for Opposite Party:- Govt. Advocate Vikrant Rana

Case BriefsDistrict Court

District and Sessions Court at Panaji: After a trial which went on for 7 years 2 months and 25 days, Kshama M. Joshi, Additional Sessions Judge, Mapusa, acquitted Tarun Tejpal, former Editor-in-Chief of Tehelka, who was accused of committing rape on a journalist working with Tehelka. The court gave benefit of doubt to accused, noting major lapses in investigation and major contradictions/improvements in testimony of the prosecutirx. The incident is of 2013 which allegedly happened during the annual THiNK Fest of Tehelka organised in Goa.

Allegations against the accused

The prosecution’s case was that between 7th and 11th November, 2013 the THiNK Fest was organised by Tehelka Magazine in Goa. It is alleged that during that fest, Tarun Tejpal, the then Editor-in-Chief of Tehelka, had sexually assaulted a female journalist associated with the magazine. It is alleged that he committed the offence of wrongful restraint/confinement, sexual harassment and rape.

The prosecutrix had alleged that on 7-11-2013 (one of the nights of the event) on the pretext of “waking up the American actor Robert De Niro” (the Chief Guest at the festival, for whom the prosecutrix was chaperoning), the accused took her to one of the guest lifts of Hotel Grand Hyatt where he wrongfully confined the prosecutrix using force against her wish and committed rape on her. Further, on the next night of 8-11-2013, the accused took her to another guest lift and again sexually assaulted her.

On completion of police inquiry, the trial court framed charges against the accused of offences punishable under Sections 354, 354-A, 354-B, 376(2)(f), 376(2)(k), 341 and 342 IPC.

Defence of the accused

Case of the accused was of total denial. He submitted that no such incident as alleged took place and that there was a drunken banter between him and the prosecutrix.

Trial Court’s decision

The Additional Sessions Judge of the District and Sessions Court at Panaji determined as many as six questions to return a finding of Not Guilty in favour of the accused. The court answered five out the six questions in favour of the accused:

(a) Whether accused committed rape as defined in Section 375(b) and (d) IPC?

Answered in negative, in favour of the accused.

(b) Whether accused used criminal force to outrage modesty of the prosecutrix?

Answered in negative, in favour of the accused.

(c) Whether accused had physical contact and made advances involving sexual overtures causing sexual harassment to the prosecutrix?

Answered in negative, in favour of the accused.

(d) Whether accused used criminal force with intention of disrobing the prosecutrix?

Answered in negative, in favour of the accused.

(e) Whether accused was in a position of trust or authority and in a position of control or dominance over the prosecutrix?

Answered in positive, against the accused.

(f) Whether the prosecutrix was wrongfully confined in the lift by the accused?

Answered in negative, in favour of the accused.

Law and Analysis (reasons given by the court)

1. Burden of proof

At the very outset, the court recorded that the burden is on the prosecution to prove beyond reasonable doubt that the accused committed the offences as charged, and that burden does not shift.

2. Victim’s testimony in a rape trial and its probative value

The court noted the settled position of law that the conviction of the accused in cases of rape or sexual harassment can be based on the sole testimony of the victim if the court finds that her deposition is of sterling quality which inspires confidence and is absolutely trustworthy, and that immoral character or previous sexual experiences of the victim is not relevant for deciding such cases.

After this, the court noted that the victim is well educated, a journalist well conversant with amendments to IPC after Nirbhaya’s case and who has dealt with issues relating to offences against women including rape and sexual assaults. Based on deposition of prosecution witnesses, it was noted that the prosecutrix is extremely capable, intelligent and independent person.

2.1. Possibility of doctoring of events with help of experts

According to the court, there are many facts on record which create doubt on truthfulness of the prosecutrix. There was a delay in lodging FIR and the prosecutrix refused to go for medical examination. She was in touch with lawyers even prior to drafting the complaint and sending to the Managing Editor of Tehelka. It has been recorded by the court that “Advocate Rebecca John“, among others, was guiding the prosecutrix about the course of action. It is also recorded that the prosecutrix was in contact with “Advocate Indira Jaisingh” (who is a friend of stepmother of the prosecutrix and whose number is saved by the name of Brahmastra).

The court, after discussing as above, concluded that:

“With the help of experts, there may be a possibility of doctoring of events or adding of incidents. Advocate for the accused has this rightly submitted that the deposition of the prosecutrix has to be scrutinised in that angle.”  

2.2. CCTV footage

After recording the horrific details provided by the prosecutrix about all that took place inside the lift of Hotel Grand Hyatt on the night of 7-11-2013, the court recorded that:

The CCTV footage does not support the statement that she was in shock or trauma and blinking in tears.

2.3. False/inconsistent statements

Based on her statement regarding her complaint on a previous occasion sometime in 2012 when she along with her friends was allegedly molested by a police officer, the court further recorded that:

“[Prosecutrix] states that she did not approach the police immediately after the first incident [at the THiNK Fest 2013] as she was too afraid of the police which show that the victim is making a false statement that she is afraid of the police which is clear from the incident narrated by her which took place in Delhi against the police officer.”

The court also concluded that the prosecutrix had made inconsistent statements. Scrutiny of evidence of the prosecutrix, according to the court, revealed several discrepancies/changes in her version, each constituting either material omissions and contradictions or improvements in her original narrative which was given and continually shifting details of the account she had proffered.   The court was also of the view that the CCTV footage did not support her statements.

2.4. Preparing a strong case

Noting that the prosecutrix pressured the Managing Editor of Tehelka to submit an apology on her terms on a claim that it would bring closure to the incident, the court formed an opinion that:

“However, the WhatsApp records show the [the prosecutrix] had already enlisted a battery of friends and networks to release such material on social media the moment the apology reached her. It is evident that the prosecutrix obtained apologies of accused from [the Managing Editor] in support of her accusation before the prosecutrix went public.”

3. Flirtatious and sexual conversations

Referring to WhatsApp messages between the accused and the prosecutrix, the court concluded that she did not contradict that both of them were drunk and it was nothing but a drunken banter, as suggested by the accused. This non-denial by the prosecutrix of the accused’s assertion gave adverse inference against her.

The accused in his defence stated that in fact it was the prosecutrix who was talking about her intimate escapades with Bob Geldof, Irish singer and a former speaker at THiNK 2012,  and also that how she was attracted towards the accused.

The court noted that:

“… thousands of her WhatsApp chats … provide a glaring proof of the prosecutrix’s conversations with a wide range of people. … The messaging record shows that it was entirely in the norm for the prosecutrix to have such flirtatious and sexual conversations with friends and acquaintances.”

Therefore, concluded that court, that her chats and her propensity to indulge in sexual conversations with friends and acquaintances, as well as her admission that the accused was talking about sex or desire, proves that the accused and the prosecutrix had a flirtatious conversation on the night of 7-11-2013.

4. Lying about intimate relationships

The court referred to the prosecutrix’s statement which, according to the court, was a brazen attempt at concealing her highly intimate and candid relationship with one N, a defence witness. Her chats with N, as also N‘s own statement, revealed that they were close friends and have had an intimate relationship.

The court here clarified that such evidence/chats were referred not for the purpose of proving her character but only to show that she was lying and that she twists and manipulates truth as she did by significantly understating the intimacy of her relationship with N. According to the court, it was difficult to believe that the prosecutrix is a truthful and reliable witness,

5. Evidence of N

The court extensively referred to the evidence given by N, prosecutrix’s friend and a defence witness, which contradicted the evidence of prosecutrix in material particulars. N was the first person who the prosecutrix met after the incident, but the investigation officer failed to record his statement nor investigate him. Hence, in court’s opinion, the evidence of N was relevant and admissible under Section 6 (facts forming part of same transaction) of the Evidence Act.

6. Glaring contradictions not expected from educated journalist

The court compared the email (complaint) of the prosecutrix sent to Tehelka’s Managing Editor with her statement under Section 161 CrPC, and noted “material contradiction”. In her email, the prosecutrix stated that “she picked up her underwear” and began walking out of the elevator. Saying that she picked up her underwear means that it was taken off the body and was not just pulled down. Taking it off was not possible as that would require lifting up of her legs. While in her statements under Section 161 and 164 CrPC, she stated that “she pulled her underwear” and began walking out.

Such “glaring contradictions“, said the court, “cannot be expected from educated journalist like [the prosecutrix] and forces the court not to believe the incident of rape“.

7. No revelation to prosecution witnessess

The court noted the evidence of a few prosecution witnessess who said that the prosecutrix only told them that accused forced his tongue in her throat, grabbed/attempted to pull her underwear and asked the colour of it. There was no accusation of removing her underwear, and penetrating her vagina with tongue/fingers.

The court said that if the rape on the prosecutrix at all happened, why she did not reveal or atleast hint about the same to the abovementioned prosecution witnesses. Also, the version disclosed by the prosecutrix to these witnessess was not at all consistent with the case she has now put up. In fact, this is inconsistent with the version of prosecutrix herself.

8. Not showing emails to court

The prosecutrix was asked whether she could show her email account to the court to which she denied. She stated that it was invasion of her right to privacy. In court’s opinion, the statement of the prosecutrix that she would not show the email to the court shows that she wants to hide something and thus she cannot be called reliable and trustworthy and evidence cannot be held to be of sterling quality.

9. Absence of injury

The court noted that the prosecutrix claimed to have physically resisted the accused with all her force and that she was constantly struggling. However, she admitted that she did not receive any injury out of the incident. According to the court, “it is not believable that the prosecutix would throw up such resistance and would not suffer any injury on her body“.

10. Narrative of extreme implausibility

Noting the position (where and how) the prosecutrix and the accused were standing in the lift, the court wondered that if she was not in a conversation with the accused and her mouth was not open, and she was not facing the accused, would it be possible for the accused to pry her mouth?  It was observed by the court that:

“If the prosecutrix had held her jaw firmly closed, how it would be possible for the accused to put his tongue in her mouth. The prosecutrix stated that she pushed the accused as hard as she could and she did so instinctively and reflexively whenever she pushed him. If the prosecutrix pushed the accused instinctively and reflexively, why wouldn’t she push the accused before he kissed when she was pushed against the wall or atleast put her hands in between to prevent the accused from coming close.”

This, in court’s opinion, was a narrative of extreme implausibility and it was not possible to believe that the prosecutrix, a woman who is aware of laws, intelligent, alert and physically fit (a Yoga trainer) would not push or ward off the accused.

11. No warning to the accused and no fight back

The court noted that in her evidence, the prosecutrix clearly stated that she regularly pushed away the accused. Then it was also noted that the prosecutrix had stated that she did not warn or intimidate the accused when he went down on his knees as she claims that he was more powerful than her. She also admitted that she did not fight back against the accused when he began to disrobe her during the incident.

According to the court, the voluntary statement of the prosecutrix that she was too scared of the accused and still in shock could not be believed. It was concluded by the court that:

“Hence, the allegation of rape and sexual assault cannot be said to have been proved by the prosecution beyond reasonable doubt.”

 12. No confession by accused

The prosecution submitted that in his apology given to the prosecutrix, the accused did not deny sexual molestation and, thus, has admitted the allegations made against him.

On this, the court discussed as to what is confession. It said that ordinarily, confession by a person is an act of admitting that he has done something wrong or illegal. In court’s opinion, the apology email sent by the accused reveal that there was absolutely no admission/confession of any incriminating fact even remotely suggesting sexual assault by the accused on the prosecutrix. That email is not a reply to any previous email sent to the accused by the prosecutrix containing any allegations of sexual assault, to claim that since the allegations were not denied, it amounted to a confession. In fact, it was not an apology but an attempt to assuage any discomfort the prosecutrix might have post facto felt. The court then went on to observe:

“Further, her statement that the accused offered to apologise to her mother and partner for the same certainly do not make out a case of sexual molestation, and it is clear that the prosecutrix is manipulating an interpretation to suit her case.”

13. Calculated actions of prosecutrix

The court noted that the prosecutrix had recorded her calls with Tehelka’s Managing Editor and these conversations were copied on DVDs which were submitted. According to the court:

“It is important to note that since she failed to inform [the Managing Editor] that she was recording the conversation – which means she could control anything she herself said in the conversation, but the other party to the call was left at the mercy of her manipulation. This is also a clear indicator of the calculated nature of her actions.”

In any event, said the court, such conversation was not relevant against the accused as he was not a party to the conversation.

14. Prohibition of Sections 53-A and 146 of the Evidence Act

Following the prohibition prescribed in Sections 53-A and 146 of the Evidence Act, the court decided to gloss over some WhatsApp chats and questions asked to the prosecutrix as well as several wintessess. Sections 53-A and 146 prohibit the evidence of general moral character and previous sexual experiences of the victim in certain cases (including cases of rape) where consent of the victim is in question.

15. The lift and the CCTV footage

The court noted certain facts regarding the lift where the incident allegedly took place. Firstly, the prosecutrix had stated that the accused kept pressing buttons on the lift panel to keep it in circuit without doors of the lift opening. To this, after perusing the evidence, the court concluded that much prior to the cross-examination of the prosecutrix, there was unequivocal evidence that the lift simply could not be kept in circuit by pressing buttons on the lift panel preventing the doors from opening at any floor, as claimed by the prosecutrix. Further, the prosecutrix did not recollect how many times the lift went up and down during the two minutes when she was being assaulted, thereby implicitly not denying the fact that the lift was in motion, and creating even more ambiguity about the lift being in motion or stationary.

However, it was noted by the court that the CCTV footage of the ground floor clearly showed that the guest lift was in motion during the two minutes and the doors of the lift opened at least twice on the ground floor.

16. Investigation lapse    

The court made several observations regarding lapses in investigation, including improper inspection of functioning of the lift where the crime allegedly took place. The court went to the extent of observing that the Investigating Officer deliberately concealed empirical evidence of the true functioning of the emergency red button of the lift from the court though available, as it contradicted the version of the prosecutrix and the prosecution case.

Prosecution’s case was that the accused pressed the red button for preventing the doors from opening. It was attempted to show that the red button of the lift was disabled after the incident, hence its exact functioning could not be inspected. To this, the court said that if documentation was created regarding disabling of the emergency red button by Hotel Grand Hyatt and Mitsubishi, it was quite strange that all documents relating to same would go missing both from Hotel Grand Hyatt and Mitsubishi.

All in all, the court concluded that prosecution’s case that the accused prevented the lift door from opening and that he wrongfully confined the prosecutrix, was not proved.

17. Destruction of most crucial CCTV footage

The accused took the defence that he and the prosecutrix were not in the lift during the relevant two minutes, but had exited the lift on the first floor. To prove this, CCTV footage of the first floor of guest lifts of 7-11-2013 (the night of the alleged incident) was most vital to the accused. On the day of registration of FIR, i.e. 22-11-2013, itself, the accused had demanded that police should procure such CCTV footage from the hotel, which would establish his innocence.

Also, there was ample evidence to prove that there was in fact a CCTV outside the guest lifts of the first floor. Not only this, but the IO (as well as several other witnesses) also admitted to have seen the CCTV footage of all floors including that of the first floor. But on being asked as to what she saw in the footage of the first floor, the IO stated that she could not recollect.

The further course of action adopted by the her made it clear to the court as to how the IO went about selectively retaining only the ground and the second floor footage, and completely destroying the first floor CCTV footage of the guest lifts in which the alleged crime took place.

It was recorded that if the CCTV footage of first floor was viewed on 29-11-2013, then where did it disappear and there is absolutely no explanation to this from the prosecution. There was no reliable proof that the DVR was sealed on 29-11-2013 which creates even further possibility for tampering with the DVR. The court concluded that:

“It can be said that because the footage of the first floor would have wholly destroyed the prosecution’s case, [the Investigating Officer] sought to keep out the relevant footage for the first floor and render it unavailable. …

[The] only conclusion that can be drawn is that the Investigation Officer tampered with and destroyed the CCTV footage of the first floor guest lifts … since it would conclusively corroborate the defence of the accused.”

18. Not using possible escapes

The court found it surprising to believe that when the accused had assaulted the prosecutrix on the night of 7-11-2013, then why did she again follow him to the lift the very next night of 8-11-2013. According to her, the accused seemed to know how to stall the elevator at his will and she was afraid that he would take her into a room this time. The court said:

“Despite this so-called fear, [the prosecutrix] chose to follow him back to the elevator and does not use any possible escapes that are available to her.”

19. Conduct of  prosecutrix not natural of a sexual assault victim

The court was not amused by the conduct of the prosecutrix after the alleged incident which was repeated on the night of 8-11-2013. Firstly, she did not report about the incident to Tehelka’s Managing Editor even when she had a chance of meeting her alone in the VIP lounge. Also, in photographs taken shortly after the alleged assault, the prosecutrix looks in a happy and cheerful mood, and did not look distressed or traumatised in any manner whatsoever.

According to the court, this unnatural conduct of the prosecutrix is relevant under Section 8 of the Evidence Act. The prosecutrix admitted to have been updating the accused about her location via WhatsApp messages even after the alleged assault. The court said:

“[If] the prosecutrix had recently again been sexually assaulted by the accused and was terrified of him and not in a proper state of mind, why would she report to the accused and disclose to him her location when she could have reported to N, S and P, all of whom she was reporting and updating on a regular basis.”

It was recorded that the prosecutrix sending messages to the accused proactively, without any attempt by him to ask her where she was, and her sending the same message thrice in a span of very few minutes clearly establishes that she was not traumatised nor terrified of being located or found out by the accused, and belies the prosecution case that immediately before the said messages, the accused had sexually assaulted the prosecutrix again.

The court concluded:

“It is extremely revealing that the prosecutrix’s account neither demonstrates any kind of normative behaviour on her own part – that an prosecutrix of sexual assault on consecutive two nights might plausibly show, nor does it demonstrate any such behaviour on the part of the accused.”

20. Omission to record evidence of K

K was an integral member of THiNK 2013 production team. The prosecutrix stayed the night of 9-11-2013 at Hotel Grand Hyatt in the production room allotted to K. Firstly, in court’s view, this exposed the fact that the prosecutrix had no problem freely moving about the hotel where the accused was also staying. Then, K has written a letter to the IO to share information related to the case. He said that he had known the prosecutrix for some time, and that he had information regarding the details and mental state of the prosecutrix during the festival, particularly on the night of 9-11-2017.

However, the IO despite receiving the said letter, did not record the statement of K. The court said that the IO dealt with the material in a casual manner and failed to even record the statement, let alone probe, verify and investigate all material potentially available in order to arrive at the truth.

21. Using allegation as a necessary escape for her peace of mind

The prosecutrix had stated that after the conclusion of THiNK 2013, she had to stay back in Goa before going home as she was traumatised and also because her mother along with her colleagues would be staying at her flat in Mumbai for a couple of days. But, the court looked at certain evidence which included her WhatsApp chats and found that the prosecutrix had a prior plan to stay in Goa with D, her Russian boyfriend, before and after the event.

The court concluded:

“[The] prosecutrix had always planned to stay in Goa with D post THiNK and is only using allegation of sexual assault to make it appear like a necessary escape for the sake of her peace of mind when it was always a pre-planned, pre-meditated trip.”

Also, the fact that after the event, the prosecutrix stayed with two of her friends at a hotel in Goa, as asserted by her, was found not proved.

22. Faulty investigation

The court had a long discussion about the material lapses and omissions on the part of Investigating Officer, some of which are mentioned above. It was also noted that the IO was also the complainant in the case (the police had initiated suo motu inquiry based on reports in media), even when there were other lady officers who could have conducted the investigation.

The court was of the opinion that:

“The settled proposition that the acquittal of accused cannot result due to defects in the investigation cannot be disputed, However, a duty is also cast on the investigating officer to conduct fair investigation in the matter to bring out the truth.”

Conclusion

The court held that deposition of the prosecutrix shows improvements and material contradictions, omissions and change of versions which does not inspire confidence. And that the accused ought to be given benefit of doubt as there is no corroborative evidence supporting allegations made by the prosecutrix. The prosecution failed to discharge the burden to prove guilt of the accused beyond reasonable doubt.

The accused was, therefore, acquitted of the offences punishable under Sections 376(2)(f), 376(2)(k), 354, 354-A, 354-B, 341 and 342 IPC. [State v. Tarunjit Tejpal, Sessions Case No. 10 of 2014, decided on 21-5-2021]

Case BriefsHigh Courts

Patna High Court: Birendra Kumar, J., while addressing the matter stated that the present judgment as well as the Trial Court’s Judgment against which the appeal was filed required to be forwarded to the Director, Bihar Judicial Academy to ensure proper academic training to the judicial officers to make them conversant with the correct legal proposition.

Adding to the above, Bench expressed that Chief Justice may deem it proper that the trial judge who passed the impugned judgment needs special training at the Judicial Academy.

Appellant was charged under Section 376 of Penal Code, 1860 and Section 6 of the POCSO Act.

Trial Judge convicted the appellant for offence under Section 18 of the POCSO Act for the reason that no case of aggravated penetrative sexual assault was made out rather a case of attempt to commit penetrative sexual assault was proved against the appellant.

In the present appeal, Trial Court’s decision was challenged.

As per the facts of the case, appellant forcefully established a sexual relationship with a 13-year-old girl. The further allegation is that the appellant lifted her and was carrying her to commit her murder, but the family members came, and the appellant was apprehended and was handed over to the police.

Bench noted that none of the doctors who had occasion to examine the victim were produced as witness during the trial.

Prosecution’s report was not a substantive piece of evidence unless the expert appeared before the Court and supported the medical performance done by them. Therefore, no evidence was present in the case. Hence the impugned judgment of conviction was fit to be set aside.

High Court noted that the Trial Court Judge referred to Sanskrit shloka and Ghazals of Late Jagjit Singh while awarding the sentence against the appellant.

Bench expressed that Trial Judge especially a Judge having power to award death sentence must have correct knowledge of legal principles and zeal to its proper application while exercising the most onerous responsibility of taking decision on the life and liberty of the person before him.

Further adding to the above, Court stated that lack of knowledge of legal principles leads to miscarriage of justice and unnecessary harassment to the parties to the litigation. Bias and prejudices, conjectures and surmises and personal views contrary to the material on the record have no place in the court of law.

Court held that the trial Judge accepted the conflicting prosecution case as disclosed in the statement of the prosecutrix under Sections 154 and 164 CrPC for recording conviction without appreciating the fact that the aforesaid were not a substantive piece of pieces of evidence and the evidence brought during the trial did not disclose the commission of any offence or identity of the perpetrator of the offence.

Hence the impugned judgment and sentence was set aside. [Deepak Mahto v. State of Bihar, 2021 SCC OnLine Pat 770, decided on 12-04-2021]


Advocates before the Court:

For the Appellant/s: Mr N. K. Agrawal, Sr. Advocate. Mr Vijay Anand, Advocate.

For the Respondent/s: Mr Zeyaul Hoda, APP

Case BriefsHigh Courts

Delhi High Court: Rajnish Bhatnagar, J., upheld the trial court decision in view of no evidence placed on record.

Petitioner is a registered valuer, running his sole proprietorship firm. Raj Kumar Karanwal, Lance Healthcare (P) Ltd., who met Y.P. Singh, Chartered Accountant wherein they discussed the matter of loan to Raj Kumar Karanwal from some banks. In the month of March, 2013 Raj Kumar Karanwal, Y.P. Singh and S.K. Verma discussed the matter of loan in the office of Raj Kumar Karanwal who informed them about his various CC Limits and deposits of his various properties title deeds with the banks.

Allegations against the petitioner were that the property of Karanwal’s were assessed by Ashugosh Nirmal, Satguru Valuers even before the actual application by Karanwal’s was moved to Corporation Bank. Petitioner claimed that he had prepared the valuation report on the asking of Corporation Bank, but according to the record, the said report was never deposited.

Further, it was stated that the petitioner, who is stated to be one of the empanelled valuer of the Corporation Bank is that he prepared inflated valuation reports in regard to the properties offered for mortgage by the borrowers. When the respondent got the same properties valued from the independent valuers, there was a huge difference between the valuation given by the petitioner and those independent valuers.

CBI investigation revealed that the petitioner was one of the bank empanelled valuer and he alongwith other co-accused persons was a part of a conspiracy to get sanctioned and disbursed CorpVyapar OD Limit Loan amounting to Rs 27 Crores to Lancer Healthcare (P) Ltd. and the petitioner alongwith other co-accused was a member of a larger conspiracy where the forged and fabricated documents were prepared of the firms/companies by inflating/exaggerating the financial records, tailor made to ensure sanction of desired loan of Rs 27 Crores. He further argued that the petitioner who was the empanelled valuer submitted false, inflated/exaggerated valuation reports to facilitate loan to the borrower co-accused.

Analysis, Law and Decision

It is a well-settled law that at the stage of framing of charge, the court has power to shift and weigh the evidence for the limited purpose of finding out whether or not a prima-facie case against accused has been made out.

Further, the Bench added that when the material placed before the court discloses great suspicion against the accused which has not been properly explained, the court will be justified in framing charge.

It is not obligatory for the judge at that stage of the trial to consider in any detail and weigh in a sensitive balance whether the facts, if proved, would be incompatible with the innocence of the accused or not. 

Standard Test before recording a finding regarding the guilt

Standard of test and judgment which is to be finally applied before recording a finding regarding the guilt or otherwise of the accused is not exactly to be applied at this stage of deciding the matter under Section 227 or under Section 228 of the Code. But at the initial stage, if there is a strong suspicion which leads the court to think that there is ground for presuming that the accused has committed an offence, then it is not open to the court to say that there is no sufficient ground for proceeding against the accused.

Whether there is a strong suspicion which may lead to the court to think that there is ground for presuming that the accused committed an offence.

Bench stated that the observations made by the trial court against the petitioner in the impugned order were all a matter of evidence which cannot be decided unless and until the evidence is led in the present case.

Therefore, in Court’s opinion the trial court’s decision is upheld. [Ashughosh Kumar Nirmal v. CBI, 2021 SCC OnLine Del 410, decided on 05-02-2021]


Advocates for the parties:

For the Petitioner: Geeta Luthra, Senior Advocate with Amit Singh Rathore, Varun Deewan, Reena Rathore, Advocates.

For the Respondent: Anupam S Sharma, SPP for CBI with Prakarsh Airan and Harpreet Kalsi, Advocates.

Case BriefsSupreme Court

Supreme Court: Setting aside the conviction of a man under Sections 7 and 13(2) read with 13(1)(d) of the Prevention of Corruption Act, 1988, the 3-judge bench of Ashok Bhushan, R. Subhash Reddy and MR Shah has reminded the Courts to take utmost care in scanning the evidence before recording conviction under the provisions of Prevention of Corruption Act.

“Once conviction is recorded under provisions of Prevention of Corruption Act, it casts a social stigma on the person in the society apart from serious consequences on the service rendered.  At the same time it is also to be noted that whether the view taken by the trial court is a possible view or not, there cannot be any definite proposition and each case has to be judged on its own merits, having regard to evidence on record.”

In the present case, the accused, working as Sanitary Inspector in Madurai Municipal Corporation, was charge-sheeted for the offence under Sections 7, 13(2) read with 13(1)(d) of the Act for an amount of Rs.500/¬ and a cell phone as illegal gratification from one Thiru. D. Gopal, who was working as Supervisor in a Voluntary Service Organisation called Neat And Clean Service Squad (NACSS), which was given sanitation work on contract basis in Madurai Corporation.

While the Trial Court acquitted the accused, the Madras High Court convicted him. It was argued by the accused that the well reasoned judgment of the trial court, which was rendered by appreciating oral and documentary evidence on record, was reversed by the High Court without recording valid and cogent reasons.

Having regard to material contradictions that were put forth before the Court, the Supreme Court noticed that acquittal is a “possible view”. Even assuming another view is possible, same is no ground to interfere with the judgment of acquittal and to convict the appellant for the offence alleged.

The trial court has disbelieved witnesses by recording several valid and cogent reasons, but the High Court, without appreciating evidence in proper perspective, has reversed the view taken by the trial court.  Further, the High Court also has not recorded any finding whether the view taken by the trial court is a “possible view” or not, having regard to the evidence on record.

“Though the High Court was of the view that PW-2, 3 and 5 can be believed, unless it is held that the view taken by the trial court disbelieving the witnesses is not a possible view, the High Court ought not have interfered with the acquittal recorded by the trial court.”

In view of the material contradictions, the prosecution has not proved the case beyond reasonable doubt to convict the appellant. It is equally well settled that mere recovery by itself cannot prove the charge of the prosecution against the accused.

“Mere recovery of tainted money, divorced from the circumstances under which such money and article is found is not sufficient to convict the accused when the substantive evidence in the case is not reliable.”

The Court was, hence, of the view that the demand for and acceptance of bribe amount and cell phone by the appellant, is not proved beyond reasonable doubt. Having regard to such evidence on record the acquittal recorded by the trial court is a “possible view” as such the judgment of the High Court is fit to be set aside.

[N. Vijayakumar v. State of Tamil Nadu, 2021 SCC OnLine SC 53, decided on 03.02.2021]


*Justice R. Subhash Reddy has penned this judgment

Appearances before the Court by

For accused: Senior Advocate S. Nagamuthu

For State: Advocate M. Yogesh Kanna

Case BriefsHigh Courts

Allahabad High Court: The Division Bench of Ved Prakash Vaish and Vikas Kunvar Srivastav, JJ., expressed that:

“Justice demands that courts should impose punishment fitting to the crime. The courts must not only keep in view the rights of the criminal but also the rights of the victim of crime and the society at large while considering imposition of appropriate punishment.”

Appellant was convicted for the offence under Section 376 of the Penal Code, 1860, though he was acquitted for the offence under Section 506(2) of the Penal Code, 1860.

Father of the Prosecutrix had lodged a complaint that his daughter had gone for easement by the roadside and did not return to the house for a long time and on inquiry, his son Kalim Ahmad aged 13 years informed that Prem Chamar forcibly took the prosecutrix on his bicycle.

On reaching outside the village, he saw his daughter (prosecutrix) weeping who disclosed the entire incident and found the bloodstains on her undergarments and concluded that Prem Chamar had committed rape on his daughter.

In light of the above sequence of events, offence under Section 376 IPC was registered.

Trial Court found the appellant to be guilty of having committed the offence under Section 376 IPC and sentenced the appellant.

On being aggrieved with the above, appellant preferred the present appeal.

Analysis and Decision

“It is settled law that refusal to act on the testimony of the victim of sexual assault in absence of corroboration as a rule, is adding to insult to injury.”

 Bench further in light of the above expressed that, a girl or a woman in the tradition-bound non-permissive society of India would be extremely reluctant even to admit that any incident which is likely to reflect on her chastity had ever occurred.

“A woman or a girl who is raped is not an accomplice. Corroboration is not the sine qua non for conviction in a rape case.”

 Court referred to the decisions of Supreme Court in State of Punjab v. Gurmit Singh, (1996) 2 SCC 384 and Takhatji Hiraji v. Thakore Kubersing Chamansingh, (2001) 6 SCC 145, Vijendra Singh v. State of U.P., (2017) 11 SCC 129, State of H.P. v. Gian Chand, (2001) 6 SCC 71, Aslam v. State of U.P., (2014) 13 SCC 350, State of Haryana v. Basti Ram, (2013) 4 SCC 200, Raju v. State of M.P., (2008) 15 SCC 133.

High Court stated that Supreme Court had observed in Raju v. State of M.P., (2008) 15 SCC 133, that it cannot be lost sight of that rape causes the greatest distress and humiliation to the victim but at the same time a false allegation of rape can cause equal distress, humiliation and damage to the accused as well. The accused must also be protected against the possibility of false implication. There is no presumption or any basis for assuming that the statement of such a witness is always correct or without any embellishment or exaggeration.

“Courts while trying an accused on the charge of rape, must deal with the case with the utmost sensitivity, examining the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the evidence of the witnesses which are not of a substantial character.”

 Bench noted that considering the statement of the prosecutrix (PW2), a girl of nine years, corroboration from an independent source of the evidence of prosecutrix is not required. The evidence of the prosecutrix establishes that the appellant committed rape on her.

Court opined that the trial court did not commit any mistake in convicting the appellant for the offence under Section 376 IPC. Accordingly, appellant’s conviction was upheld.

Sentence

With regard to the question of sentence, Court stated that it may be mentioned that the protection of society by stamping out criminal activity is an essential function of State.

The facts and given circumstances of each case, the nature of the crime, the manner in which it was planned and committed, the motive for commission of the crime, the conduct of convict and all other attending circumstances are relevant facts for imposing appropriate sentence.

Hence, the object of sentencing is that the offenders do not go unpunished and the justice be done to the victim of crime and society. It is, therefore, the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed.

Therefore, in the instant case, Court held that the interest of justice would be met if the sentence imposed by trial court would be modified to that of rigorous imprisonment for 10 years and to pay a fine of Rs 2,000.

Concluding the decision, Court in view of the above discussion dismissed the appeal. [Prem Chamar v. State of U.P., Criminal Appeal No. 1078 of 2012, decided on 22-01-2021]

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of Sanjay Kishan Kaul, Dinesh Maheshwari and Hrishikesh Roy, JJ., has set aside the order of High Court of Judicature for Andhra Pradesh at Hyderabad and, thereby restored the findings of Trial Court.

Background

 In the instant case, a claim for partition and division was made by the appellant in four equal shares amongst herself and her three siblings, who were arrayed as defendants 1, 2 and 3. The property was left by deceased step-mother of the appellant. Defendant 4, brother of step-mother of the appellant, alleged that his sister had sold Item 1 of Schedule A of the plaint to Defendant 15 under an agreement for sale dated 05-11-1976; and that she had also executed a Will dated 15-06-1978 in favour of her mother and an attendant, defendants 14 and 13 respectively. The appellant denied and disputed the alleged agreement for sale as also the alleged Will.

Findings of the Courts below

 The Trial Court held that both the documents, of the alleged agreement for sale and of the alleged Will, were false and fabricated. The Court observed that the deceased, who was only 45 years of age at the time of her death, would never choose to bequeath the major part of property to her mother, who was about 80 years of age. It was observed that suggestions about the deceased being in her high level of indebtedness were not correct as the defendant could not point out the names of creditors and could not say as to how much was discharged. On contrary, the High Court had affirmed the findings of the Trial Court in relation to Will in question and has held that the Will was not valid. However, it had reversed the findings of the Trial Court in relation to alleged agreement for sale and held that the same was binding on the appellant. It was also ordered that the property forming the subject matter of the said agreement would not be available for partition.

 Observations and Considerations

 In the backdrop of the aforementioned facts, the Court formed three points for determination in the instant appeal:

Whether suit for partition filed was not maintainable for want of relief of declaration against the agreement for sale deed?

The Court clarified that the expression “declaration”, for the purpose of a suit for partition, refers to the declaration of the plaintiff’s share in the suit properties. It was observed that the appellant had not shown awareness about any agreement for sale initially, and later on, the appellant did raise a claim for sale deed being frivolous.

It was also observed that, as per Section 54 of the Transfer of Property Act, 1882, an agreement for sale of immoveable property does not, of itself, create any interest in or charge on such property. A person having an agreement for sale in his favour did not get any right in the property, except the right of obtaining sale deed on that basis and the alleged agreement for sale did not invest the vendee with any such right that the appellant could not have maintained her claim for partition in respect of the properties left by her deceased mother without seeking declaration against the agreement.

What is the effect and consequence of not bringing the legal representatives of defendant who expired during the pendency of appeal in the High Court on record?

Order XXII, Rule 1 of CPC lays down that the death of an appellant or respondent shall not cause the appeal to abate if the right to sue survives. The Court clarified that the same procedure would apply in appeal where one of the several appellants or respondents dies and right to sue survives to the surviving parties alone. Reliance was placed on State of Punjab v. Nathu Ram,(1962) 2 SCR 636, wherein it was held that,  “if the court can deal with the matter in controversy so far as regards the rights and interests of the appellant and the respondents other than the deceased respondent, it has to proceed with the appeal and decide it. It is only when it is not possible for the court to deal with such matters, that it will have to refuse to proceed further with the appeal and therefore dismiss it.” The Court held that, the instant case could definitely proceed even in the absence of the legal representatives of defendant 2 because in case of success of this appeal, there would be no likelihood of any inconsistent decree vis-à-vis defendant 2 coming into existence. The decree of the Trial Court had been in favour of the plaintiff and defendants 1 to 3 and the result of success of this appeal would only be of restoration of the decree of the Trial Court, which would be of no adverse effect on the estate of the deceased defendant 2.

Whether the High Court was justified in reversing the findings of the Trial Court in relation to the said agreement for sale?

The Court noticed that the two documents were intrinsically intertwined, particularly

because it was suggested by the contesting defendants that in the Will, apart from making bequest, the deceased also directed her mother (legatee) to execute a registered sale deed in favour of defendant 15 after receiving the balance sale consideration from him as per the agreement executed in his favour; and that the deceased also directed her mother to discharge the debts. This unmistakable inter-mixing of the two documents had been the primary reason that the Trial Court examined the matters related with them together, while indicating that to give a colour of reality to the Will and to show that the deceased was highly indebted to others which compelled her to sell the property, the suggestions were made about sale to the husband of the deceased’s sister. The High Court had missed out this fundamental feature of the case that two documents, Will and agreement for sale, as put forward by the contesting defendants could not be analysed independent of each other.

When the Will was found surrounded by suspicious circumstances, the agreement must also be rejected as a necessary corollary.

While examining preponderance of probabilities about the existence of such an agreement for sale, the overall relationship of the parties, the beneficiaries of the alleged agreement and their conduct could not be kept at bay. The Court stated, “If the story of indebtedness of the deceased goes in doubt, the suspicions surround not only the Will but agreement too.” Trial Court was right in questioning that if at all any such agreement was executed on 05-11-1976, there was no reason that the vendee did not get the sale document registered for a long length of time because the deceased expired 1½ years later.

Decision

It was held that the Trial Court had examined the matter in its correct perspective and had rightly come to the conclusion that the agreement for sale was as invalid and untrustworthy as was the Will. The findings of Trial Court, based on proper analysis and sound reasoning, called for no interference. On the other hand, the High Court had been clearly in error in interfering with the findings of the Trial Court in relation to the agreement in. Therefore, the Court restored the decree of the Trial Court with further directions that the appellant should be entitled to the costs of the litigation in the High Court and in this Court from the contesting respondents. [Venigalla Koteswaramma v. Malampati Suryamba, 2021 SCC OnLine SC 26, decided on 19-01-2021]

Case BriefsHigh Courts

Gujarat High Court: R.P. Dholaria, J., allowed an appeal which was filed in order to decide whether a matter can be remanded in order to comply with the principles of natural justice.

The appellant-original complainant was involved in the business of finance/money lending in the name and style of “Pappu Finance” and he was holding a valid license for engaging in the said business. The respondent 2-original accused was known to the complainant since many years due to business relations with him and accused was doing business as Road Contractor and therefore, whenever he required money, the accused used to borrow money from the complainant. Once, the respondent 2-accused was in need of money for the purpose of his business and therefore, the complainant lent Rs 6 lakhs by cheque for a period of six to seven months and for the due discharge of legal liability, two different cheques were issued in favour of the complainant which came to be dishonoured therefore, the complaint came to be filed under Section 138 of the N.I. Act. The counsel for the appellant, S.M. Ahuja submitted that there were two different proceedings between the same parties and due to inadvertent mistake on the part of an advocate who was appearing for the appellant-original complainant before the Magistrate of intermingling statutory notice as well as cheques and therefore, it was not matching with the pleadings as well as without appreciating the evidence that though in the year 2017, the appellant had availed license for carrying out business of lending money, the Magistrate rendered the judgment of acquittal.

The issue before the Court was that whether when the two separate proceedings between the same parties were being conducted by the same Judge, in that event, due to intermingling of the statutory notices as well as cheques which were mismatching to the respective proceedings, but upon joint perusal of both the complaints, it could have been tallied which had not been done so far by the trial Court or the trial Court had not even afforded reasonable opportunity of interchanging the statutory notices as well as cheques, in that case, in order to comply with the principles of natural justice, the matter was required to be remanded or not.

The Court while allowing the appeal explained that since the proceedings before the same Judge and statutory notices as well as cheques and other documentary evidence alleged to have been intermingled due to which they were found to be mismatching with the pleadings, but the Magistrate could have afforded reasonable opportunity of interchanging the statutory notices as well as cheques in the complaint so as to match with the factual scenario that was merely a clerical mistake committed on behalf of advocate for the complainant which had rendered into grave prejudice as well as injustice to the complainant which deserved to be remanded with a liberty to the appellant original complainant to give an opportunity of interchanging statutory notices and cheques and correcting the records of respective cases.

[Dilipbhai Bhagwandas Aashwani Proprietor Pappu Finance v. State of Gujarat,2019 SCC OnLine Guj 6621, decided on 04-12-2019]


Suchita Shukla, Editorial Assistant has put this story together

Case BriefsHigh Courts

Kerala High Court: N.Anil Kumar, J., allowed the instant revision petition against the concurrent findings of the Trial Court and the Appellate Court.

The facts of the case are such that, on 24-10-1998 the accused was found in possession of 2.5 litres of illicit arrack in contravention of the Kerala Abkari Act, 1077 (“the Act”). The Trial Court convicted and sentenced the accused to undergo rigorous imprisonment for a period of one year and also to pay a fine of Rs1,00,000, and in default of payment of fine to undergo simple imprisonment for six months. Against which, the petitioner preferred an appeal before the Court of Additional Sessions Judge. The Appellate Court while retaining the sentence of fine; reduced the substantive sentence of rigorous imprisonment for one year to rigorous imprisonment for six months.

In the instant case, the petitioner had challenged the impugned judgment of the Appellate Court. The counsel for the petitioner, V. Rajendran, submitted that the petitioner had already undergone the sentence imposed in this case. The Court, on recording the submission, directed the Superintendent, Central Prison, Kannur to furnish the detail of sentence undergone by the petitioner. The Superintendent of Prison submitted that the accused was released from prison after completion of sentence and default sentence for failure to pay fine.

On going through the evidence on record, the Court found no legal infirmity or perversity to set aside the concurrent conviction imposed by the two Courts. Thus, the Court confirmed the conviction concurrently imposed by the Trial Court as well as the Appellate Court. While dismissing the revision petition the Court directed that no further coercive steps shall be initiated against the petitioner anymore. [Prabhakaran Chirangodan v. State of Kerala, 2020 SCC OnLine Ker 7728, decided on 22-12-2020]

Case BriefsHigh Courts

Punjab and Haryana High Court: Gurvinder Singh Gill, J., observed that,

Right to appeal against conviction is an invaluable statutory right vested upon a convict by Criminal Procedure Code which cannot be allowed to be defeated by imposing any condition for availing such right.

“..depriving a convict of his right to appeal by imposing any pre-requisite for availing his statutory right to challenge conviction in a higher Court would amount to depriving his liberty without adhering to the established procedure of law.”

Petitioners were arrayed as accused in the complaint filed by the respondent under Section 138 of Negotiable Instruments Act, 1881.

It was alleged that the cheques drawn by the accused upon their presentation in the bank by the complainant for their encashment were dishonoured.

In light of the above background, accused were tried by the Judicial Magistrate and directed to pay compensation.

Accused, on being aggrieved by the above decision preferred appeals before the Sessions Court, wherein at the time of admission of appeals, impugned orders dated 28-2-2020 were passed, wherein following was stated:

“Criminal Appeal received by entrustment. As there are fairly arguable points involved in the adjudication of the present appeal, hence, the present appeal is admitted for hearing, subject to just exceptions and to deposit of 20% of the compensation amount in view of latest amendment in Section 148 of Negotiable Instruments Act (applicable w.e.f. 01.09.2018), within one month from today. It is registered as Criminal Appeal. Now notice of this appeal be issued to the respondent through ordinary process as well as speed post on furnishing of speed post charges and copies of grounds of appeal within a week for 02-07-2020. Trial Court Record be also called for that date.”

Counsel representing the complainant argued that the lower Appellate Court having passed the orders in question in exercise of jurisdiction under statutory provisions of Section 148 of the Act, the same cannot be called to question.

Analysis, Law and Decision

The language of Section 148 of the NI Act would show that the amended provisions vest the Appellate Court with a discretion to direct deposit of an amount not less than 20% of the compensation amount as awarded by the trial Court. Although the word ‘may’ has been used in the Section but the Supreme Court in Surinder Singh Deswal v. Virender Gandhi, (2019) 11 SCC 341 has interpreted the said provisions to mean that issuance of such a direction is more in the nature of a mandate.

In view of the above-stated Supreme Court decision, power of Appellate Court, though discretionary is supposed to be a ‘rule’ and said discretion should be exercised in all the cases unless there are some exceptional circumstances

In the instant case, there were no exceptional circumstances before the lower Appellate Court so as to justify non-deposit of an amount as provided under Section 148 of the Act.

Section 148(2) of the Act would show that it is provided in unambiguous terms that the amount is required to be deposited within a period of 60 days which may further be extended by another 30 days.

In the instant case, lower Appellate Court having granted only 1 month’s period for depositing the amount, the same is contrary to the above-stated provisions.

Right of Appeal

Section 374 CrPC does not prescribe any condition for admission of an appeal.

Provisions of the statute which vests a convict with a valuable right to challenge his conviction are not circumscribed by any conditions.

Nor does any provision of the Negotiable Instruments Act, 1881 refer to any pre-condition for availing a valuable right of the first appeal.

Further, the Bench expressed that Section 148 of the Act just vests the Appellate Court with the power to direct the appellant to deposit an amount not less than 20% of the compensation amount but under no circumstances the same can be interpreted to be a condition pre-requisite for availing the right of appeal.

Imposition of any condition at the time of suspending of sentence may be a different matter and the trial Court may in its wisdom, impose such a condition failing which the order suspending sentence may be vacated.

Supreme Court in Babu Rajirao Shinde v. State of Maharashtra, (1971) 3 SCC 337, observed that a convicted person must be held to be at least entitled to one appeal as a substantial right.

High Court also made another significant observation:

Even though the Negotiable Instruments Act, 1881 is a special Act and could override provisions of Cr.P.C., but there is no such specific provision in the Act which could be interpreted to mean that availing of right to appeal by a person convicted for an offence under the Act, has been made subject to some conditions.

While parting with the decision, Court held that:

(i) The condition made in the impugned orders wherein the admission of appeal has been made subject to deposit of 20% of the compensation amount is set aside and it is ordered that the appeals shall stand admitted before the lower Appellate Court. The petitioners are, however, directed to deposit an amount equivalent to 20% of the amount of compensation awarded by the trial Court within 60 days from today.

(ii)  In case the aforesaid amount is deposited within 60 days from today, the bail already granted vide order dated 28.2.2020 by lower Appellate Court shall continue subject to any such fresh conditions as may be imposed by lower Appellate Court.

(iii)  In case bail of any of the petitioner has been cancelled on account of non-deposit of the amount or has already been taken into custody, he shall be released forthwith on bail subject to any such conditions as may be imposed by the lower Appellate Court. He shall, however, deposit the amount of 20% within 60 days from today.

(iv) In case of failure to deposit the amount in question within a period of 60 days from today, it shall be open to the lower Appellate Court to cancel bail and to hear the appeal on merits, provided, however, subject to any such general directions issued by the High Court in the matter of hearing of cases, having regard to the present circumstances of spread of pandemic COVID-19.[Sudarshan Kumar v. Manish Manchanda, 2020 SCC OnLine P&H 2321, decided on 15-12-2020]


Advocates who appeared before the matter:

Vaibhav Sehgal, Advocate, counsel for the petitioner(s).

Nitin Thatai, Advocate for the respondent (s)

Case BriefsHigh Courts

Kerala High Court: R. Narayana Pisharadi, J., while allowing the instant petition, set aside the order of trial Court, thereby allowing the amendment of the plaint contrary to the provisions of Code of Civil Procedure.

In the present case, respondent instituted a suit before trial Court for obtaining a decree of declaration that respondent has got the absolute title, ownership and possession over the property described in the plaint, schedule C and also a decree of prohibitory injunction restraining the appellant from trespassing into that property. After commencement of the examination of witnesses in the suit, the respondent filed an application (Ext.P5) under Order VI Rule 17 of the Code of Civil Procedure, 1908 for amendment of the plaint, which was allowed by the trial Court.

The impugned order of the Trial Court was challenged in the instant petition. One of the main contentions raised by the petitioner was that the application for amendment of plaint cannot be allowed since it was filed by the respondent after the commencement of the trial of the suit.

While ascertaining the date of trial the Court reiterated its decision in Sasidharan v. Sudarsanan, 2020 SCC OnLine Ker 4540, wherein it was held that, “the trial in a suit commences on the date on which the affidavit in lieu of examination-in-chief of a party or his witness is filed for the purpose of recording evidence.” The Court further relied on Vidyabai v. Padmalatha, (2009) 2 SCC 409, where it was held by the Supreme Court that,

 “Order 6 Rule 17 CPC is couched in a mandatory form. Unless the jurisdictional fact, as envisaged in the proviso to Order 6 Rule 17 CPC is found to be existing, the Court will have no jurisdiction at all to allow the amendment of the plaint.”

The Court observed that the trial court has not considered whether the objections raised by the respondent are legally sustainable or not. Hence, the Court set aside the impugned order with the directions that the application is remanded to the trial court for fresh consideration and disposal. The trial court was directed to consider all relevant contentions raised by both parties and dispose of the application in accordance with law by a speaking order, within a period of one month from the date of production of a certified copy of this judgment. [T.V. Sasikala v. C.P. Joseph, 2020 SCC OnLine Ker 7702, decided on 21-12-2020]

Case BriefsHigh Courts

Karnataka High Court: John Michael Cunha J., allowed the appeal and sets aside the impugned order.

The case involves default under Section 138 Negotiable Instruments Act, 1881 for the discharge of hand loan of Rs 5,00,000 by the petitioner. The notice was issued by the appellant/ complainant demanding the payment of the cheque amount, which went unreplied by the respondent. In the course of the trial, evidence was produced like the original cheque, the dishonour memo and the refused postal cover in proof of service of the demand notice on the respondent. Trial Court found respondent guilty of the offence under Section 138 of NI Act, 1881 and sentenced him to pay fine. The Respondent filed an appeal being aggrieved by the said order which was reversed observing that no opportunity was provided to the respondent to present his case and hence the matter was remanded back top the Trial Court. The accused yet not produce about defence evidence nor did he controvert the evidence produced by the complainant. The Trial Court, this time acquitted the respondent on the ground that the complainant has not examined the concerned bank manager in proof of the endorsement given by him regarding the “payment stopped by the drawer”.

Counsel for the appellants submitted that the reasoning assigned by the Trial Court is completely perverse and irrelevant.

The Court observed that the complainant had initiated action for the offence of dishonor of cheque the Trial Court was only required to consider the proof of the ingredients of the offence namely the issuance of cheque by the respondent towards the discharge of the legally enforceable debt and the consequent dishonour thereof. It was further observed that it is not in dispute that the evidence given by him regarding the transaction as well as the dishonour of the cheque has remained uncontroverted and under the said circumstance, the complainant was not required to examine the banker to prove the endorsement issued by him.

In view of the above, the appeal was allowed and the impugned order was set aside.[M. Narayanaswamy v. Nagaraj N.S., 2020 SCC OnLine Kar 2013, decided on 11-12-2020]


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Case BriefsHigh Courts

Karnataka High Court: John Michael Cunha J., allowed the appeal and set aside the impugned judgment.

The case involves default under Section 138 Negotiable Instruments Act, 1881 wherein after the complaint was made summons were issued to the respondent. The complainant examined himself and produced 8 documents pertaining to his claim as evidence. However, during the trial accused remained continuously absent. Hence the Trial Court dismissed the complaint stating that further cross-examination of PW1 was taken as “not tendered for further cross-examination”. When the complainant failed to tender himself for cross-examination, the only course open for the court was to eschew the entire evidence from record and as a result no evidence would have been available before the Trial Court to render a finding on merits of the case, But unfortunately the Trial Court proceeded to discuss the matter on merits and held that the complainant has failed to prove the existence of the debt or other liability and hence acquitted the accused. Aggrieved by the same, present appeal was filed.

Counsel for the complainant submitted that such procedure is legally untenable and cannot be approved.

The Court observed that when no legal evidence was available on record, the Trial Court could have passed an order on merits and rejected the claim of the complainant. It was further observed that the order sheet clearly indicates that not only the accused but also the complainant remained continuously absent.

Thus, the Court held that the trial Court ought to have dismissed the complaint about non-prosecution under Section 256 of the Criminal Procedure Code and not on merits. It further held that complainant is equally responsible for keeping the matter pending for more than 4 years from 2016 onwards.

In view of the above, the appeal was allowed and the impugned order was set aside. [Karage Gowda v. S. Nagaraj, 2020 SCC OnLine Kar 2012, decided on 11-12-2020]


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Case BriefsHigh Courts

Himachal Pradesh High Court: Jyotsna Rewal Dua, J., while rejecting the present petition, upheld the decision of the trial court as the transposition seemed to have no effect on the nature and scope of the suit or interest of the parties involved.

Background

An application moved by one Shri Subhash Chand Puri (original proforma defendant 7) under Order 1 Rule 10 (2) read with Section 151 of Code of Civil Procedure, 1908 for transposing him as co-plaintiff was allowed by the Trial Court vide order dated 12-06-2019. Aggrieved defendant 1 (Surinder Kumar) has preferred the present petition under Article 227 of Constitution of India.

 Observation

In addition to its decision, the Court considered the following cases;

Gurmit Singh Bhatia v. Kiran Kant Robinson, 2019 SCC OnLine SC 912, wherein the Supreme Court adhered to its earlier judgment in Kasturi v. Iyyamperumal, (2005) 6 SCC 733 observing, “Order I Rule 10 CPC  cannot be invoked unless the party proposed to be added has direct and legal interest in the controversy involved in the suit.” Two tests were laid down to determine as to who is a necessary party; (1) There must be a right to some relief against such party in respect of controversy raised in the proceedings (2) No effective decree can be passed in absence of such party. It was further observed that a party claiming an independent title and possession adverse to the title of the vendor and not on the basis of the contract, in a civil suit for performance, is not a proper party. Addition/impleadment of such party shall enlarge the scope of civil suit for specific performance to suit for title and possession, which is impermissible.

  1. Dhanasundari v. A.N. Umakanth, 2019 (4) SCALE 161, wherein it was observed that object of Order 1 Rule 10 CPC is essentially to bring on record all the persons who are parties to the dispute relating to the subject matter of the suit so that the dispute may be determined in their presence and the multiplicity of proceeding be avoided.

Kiran Tandon v. Allahabad Development Authority, (2004) 10 SCC 745, where the Supreme Court reiterated the principle laid down by the Privy Council in Bhupendra Narayan Sinha v. Rajeshwar Prasad, 1931 SCC OnLine PC 32, in the words, “…for effective and complete adjudication and settling all the questions involved in the civil suit, the Court has power under sub-rule (2) Order 1, Rule 10 C.P.C. to transfer a defendant to the category of plaintiffs and where the plaintiff agrees, such transportation should be readily made. This power could be exercised by the High Court in appeal, if necessary, suo-motu to do complete justice between the parties.”

 Decision

Dismissing the present petition, the Court held, Due to subsequent events, proforma defendant 7 had started sailing in the plaintiffs’ boat and had acquired interests common to the plaintiff. It was then a logical corollary to transpose the proforma defendant as a co-plaintiff. Refusal to do so would cause him prejudice. By such transposition, nature and scope of civil suit was not being changed or enlarged. Claim of proforma defendant was not inconsistent with that of original plaintiff, who had dominus litis. The issues relating to lease deed pertain to merits of main case and can be adjudicated there. There is thus no error in the impugned order passed by the learned trial Court transposing proforma defendant No. 7 as co-plaintiff.”[Surinder Kumar v. Sham Sunder, 2020 SCC OnLine HP 2855, decided on 03-12-2020]


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Case BriefsHigh Courts

Madras High Court: N. Anand Venkatesh, J., issued guidelines pertaining to deal with cases wherein accused persons are absconded leading to the pendency of cases in subordinate courts.

Pendency of cases

Petitioners Counsel submitted that an FIR was registered and final report for the same was taken by the lower Court for offence under Sections 147, 148, 341, 302 of Penal Code, 1860. Further, It was stated that since some of the accused persons were absconding, the case was being kept pending for the last 8 years without being committed to the appropriate Court.

Adding to the above, Counsel also stated that the petitioner was aged about 70 years, but no progress in the lower Court took place, instead of splitting up the case, it kept on being adjourned on the ground that the accused persons were not present or that the non-bailable warrant was pending.

Analysis and Decision

Accused Persons Absconding

Court noted the fact that several petitions have been filed before the Court wherein case have been kept pending in light of certain accused persons being absconding and subordinate Courts finding the said issue have been finding the same to be a hurdle while dealing with the cases.

The above-stated issue leads to the pendency of the case.

Hence, the Court found this to be the right time to issue certain guidelines for the Court below to deal with the cases in which accused persons have been absconding.

Criminal Rules of practice and Circular Orders, 1958 provides for dealing with cases where the accused persons have absconded.

Guidelines

Guidelines to be kept in mind while dealing with cases of absconding accused:

  1. Where the Court has issued process for the appearance of an accused and the same could not be served and if the Court is satisfied that the accused is in absconding, the Court may, after having waited for a reasonable time, proceed under Section 82 of the CrPC.
  2. If the case involves a single accused against whom proceedings have been initiated under Section 82 of the Code, the Court shall shift the case from relevant register to the register of long-pending cases.
  3. When there are several accused persons in a case and only some of them have appeared or have been produced before the Court and if the Court is satisfied that the presence of other accused cannot be secured within a reasonable time, having due regard to the right of such of the accused in attendance to have the case against them enquired into or tried without delay, the Court may split up the case if it is satisfied that such splitting up will cause no prejudice either to the prosecution or to the accused in attendance and proceed with the enquiry or trial as regards the accused who are in attendance.
  4. While splitting up the case as referred, the Court shall assign a fresh number to the split-up case relating to the absconding accused and enter the same in the relevant register of the current year.
  5. In a case exclusively triable by Sessions Court, when there are several accused persons and only some of them have appeared or have been produced before the Court, the Magistrate Court shall follow the same procedure mutatis mutandis till the stage of splitting up of case.
  6. Magistrate Court shall thereafter comply with the provisions of Section 207 or Section 208, as the case may be, insofar as the accused in attendance and commit the case to the Court of Session.
  7. Sessions Court shall be reported about the split-up of the case and the Sessions Court shall assign a number to the split-up case, enter the same in the sessions Register and communicate the number to the Magistrate Court forthwith. The Magistrate Court shall also indicate this number in brackets along with the fresh number assigned to the split-up case relating to the absconding accused.
  8. As and when the absconding accused appears and is produced before the Magistrate Court, the Magistrate Court shall comply with clause (vi) and while committing the case to the Court of Session shall indicate the number assigned by the Sessions Court for the split up the case.
  9. Clauses (i) to (vii) above shall apply, as far as may be to cases where an accused person has appeared but has subsequently absconded.
  10. If the accused has absconded after committal of the case, the Sessions Judge shall follow the same procedure under clauses (ii) to (iv).

Practice provisions of Section 299 CrPC

High Court also stressed upon the need to put in practice the provisions of Section 299 CrPC by the trial courts which deals with recording of evidence in the absence of accused.

  • Record the order which proves that the accused has absconded and there is no immediate prospect of his arrest.
  • Depositions of prosecution witnesses may be recorded and attest and file the same in the split-up case for the purpose of furnishing it to the absconded accused as and when they appear.
  • The above-stated deposition can be given in evidence against the accused in any inquiry or trial for the offence with which he is charged, provided that the witness is either dead or he is incapable of giving evidence or his attendance would cause unreasonable delay, expense or inconvenience.[Exception to the principle embodied in Section 33 of Evidence Act.]
  • The evidence which is recorded against an absconded accused can be read when he is apprehended later and tried even if such evidence is not tendered in his presence, on the fulfilment of the above-said conditions.

Supreme Court’s decision in Nirmal Singh v. State of Haryana, (2000) 4 SCC 41 and Jayendra Vishnu v. State of Maharashtra, (2009) 7 SCC 104 were referred.

The above-stated Judgments were referred to as the said decisions provide a very clear picture on the ambit and scope of Section 299 CrPC.

High Court directed the Court below to follow the above guidelines and proceed further immediately to ensure that the accused is committed to the appropriate Court, as expeditiously as possible. [H. Aarun Basha v. State, 2018 SCC OnLine Mad 12845, decided on 19-12-2018]


Advocates who appeared in the instant matter:

For Petitioner: Mr M.Babu Muthu Meeran

For Respondent: Mr M.Mohamed Riyaz, Additional Public Prosecutor

Case BriefsHigh Courts

Himachal Pradesh High Court: Vivek Thakur, J. while setting aside the impugned order, relied on settled legal precedents and discussed at length, the powers of the Magistrate in proceeding with an application under Section 145 of the Negotiable Instrument Act, 1881.

 Background

Present petition was filed assailing the impugned order dated 08-04-2019 passed by Additional Chief Judicial Magistrate, whereby an application filed on behalf of accused-petitioner under Section 145(2) of Negotiable Instrument Act (‘NI Act’ in short), has been dismissed.

 Issue

  1. Whether the Court has any discretion in an application made under Section 145 (2) of the Negotiable Instrument Act, 1881, for the purpose of summoning and examining any person giving evidence on affidavit?
  2. Whether the procedure adopted by the Magistrate Court, while entertaining the application aforementioned, just and proper?

 Observation

With respect to issue 1, Court considered the case of Mandvi Cooperative Bank Ltd. v. Nimesh B. Thakore, (2010) 3 SCC 83, wherein it was held, “… two words i.e. ‘may’ and ‘shall’ in Section 145(2) NI Act have been used by the Legislature with reference to the ‘Court’ and with reference to the ‘prosecution or accused’ respectively and therefore, it is beyond doubt that in the event of an application made by the prosecution or accused, the Court would be obliged to summon the person giving evidence on affidavit in terms of Section 145(1) of NI Act without having any discretion in the matter and therefore, if an application is made under Section 145(2) of NI Act either by prosecution or by the accused, the Court must call the person, who has given evidence on affidavit, for examining him again as to the facts contained therein. Intention of Legislature, in this regard, is very clear as the Legislature has used two distinct and different words i.e. ‘may’ and ‘shall’ for two different situations and it is not made mandatory for the Court to summon and examine the persons filing the affidavit in all eventuality, but a discretion has been given to the Court to call such witnesses, if Court feels it necessary, but in the case of application filed by ‘prosecution’ or ‘accused’, by using word ‘shall’, it has been made mandatory to summon and examine such person.”  The Court further rejected the findings of the Magistrate court stating that there has been gross illegality in dismissing the application filed by the petitioner accused.

With respect to issue 2, Court referred a catena of judgments discussing the procedure to be adopted while entertaining an application under Section 145 of the NI Act, 1881. Reiterating the observation of the Supreme Court in the aforementioned case, the Court said, “… Sections 143 to 147 lay down a kind of a special code for the trial of offences under Chapter XVII of NI Act and these Sections were inserted in the Act by Negotiable Instruments (Amendment and Miscellaneous Provisions) Act, 2002 to do away with all stages and processes in a regular criminal trial which normally cause inordinate delay in its conclusion and also to make the trial procedure as expeditious as possible without, in any way, compromising on the right of accused for a fair trial. Therefore, right of the accused for having a fair trial can never be ignored by any Court particularly where it leads to curtailment of personal liberty.” The said observation was backed by another judgment of the Supreme Court as rendered in, Meters and Instruments Pvt. Ltd. v. Kanchan Mehta, (2018) 1 SCC 560. Elaborating further, the Court cited the case of Omprakash Shivprakash v. K.I. Kurikose, (1998) 8 SCC 633, wherein dealing with similar provision of Section 16A of the Prevention of Food Adulteration Act 1954, empowering the Judicial Magistrate to try the offence under Section 16(1) of the said Act in summary way, observed that Chapter XXI of Criminal Procedure Code (“CrPC”), 1973, deals with summary trial wherein “Section 262 CrPC provides that procedure, specified for trial of summons cases, shall be followed for summary trial, but subject to some variations as necessary keeping in view provisions of special Code dealing with the case, and Chapter XX of CrPC is titled as ‘Trials of summons cases by Magistrates’ wherein Section 251 of CrPC is a commencing provision which requires that on appearance of accused or bringing him before the Magistrate, the particulars of offence shall be stated to him and he shall be asked whether he pleads guilty or not and therefore, it has been held that if the Magistrate opts to hold summary trial, ‘trial’ of offence under the said Act begins when the Magistrate asks the accused whether he pleads guilty or not as envisaged in Section 251 of the Code. It is further held that evidence in a ‘trial’ can be adduced only after recording the plea of accused as envisaged in the said Section.”

Narrowing down to the present case, the Court herein observed, “Section 143 of NI Act empowers the Court to try the cases summarily by applying Sections 262 to 265 (both inclusive) of CrPC ‘as far as may be’ applicable. In view of provisions of Section 262 CrPC, procedure for trial of summons case, as provided in Sections 251 to 259 CrPC contained in Chapter XX of CrPC, is to be followed in summary trial with variations keeping in view provisions of Sections 263 to 265 CrPC and in trial under NI Act, it shall be subject to further variations in consonance with provisions of NI Act. Section 251 CrPC provides that immediately on appearance of accused before the Magistrate, the particulars of the offence, of which he is accused, shall be stated to him and he shall be asked whether he pleads guilty or has any defence to make, but it would not be necessary to frame a formal charge. Therefore, trial in case of summary trial under NI Act shall also commence after asking the accused as to whether he pleads guilty or has any defence to make as envisaged in Section 251 CrPC In case of regular trial, other than summary trial and summons case trial, trial shall begin on framing of charge under provisions contained in Chapter XVII of the CrPC… Sub-section (2) of Section 262 CrPC provides that no sentence of imprisonment for a term exceeding three months shall be passed in the case of any conviction under Chapter XXI of CrPC. But provisions of first proviso to Section 143 of NI Act empowers the Magistrate to pass a sentence of imprisonment upto one year and an amount of fine exceeding Rs.5000/- on conviction in a summary trial. Therefore, limit to impose the sentence as provided under Section 262 (2) of CrPC is not applicable in the summary trial under NI Act but it shall be governed by second proviso of Section 143 of NI Act. Second proviso to Section 143 of NI Act also empowers the Magistrate, if it appears to him, keeping the nature of case, that a sentence of imprisonment for a term exceeding the term provided under first proviso may have to be passed or that, for any other reason, it is undesirable to try the case summarily, to recall the witness who may have been examined and to proceed to hear or re-hear the case in the manner provided by the CrPC but after hearing the parties and recording the order to that effect. It gives discretion to the Magistrate either to proceed summarily or otherwise for a regular trial, as warranted in the facts and circumstances of the case. Furthermore, the Court categorically said, “Section 145 of NI Act provides filing of evidence of complainant on affidavit with further provision that the said evidence may, subject to all just exceptions, be led in evidence in any inquiry, trial or other proceedings under the CrPC. Therefore, in a case under Section 138 of NI Act, the Magistrate is empowered to accept the evidence of complainant on affidavit even before the commencing of trial during its preliminary inquiry at the time of taking the cognizance of the offence under NI Act. The rider that the said affidavit shall be subject to all just exceptions means that the evidence, so filed on affidavit, shall be evidence ‘admissible’ under the Indian Evidence Act and further provision for reading the said affidavit in evidence in any inquiry, trial or other proceedings empowers the Magistrate not to ask for fresh affidavit on or after commencing of trial but to read the same affidavit in evidence again after the commencement of trial if the accused does not plead guilty.”

The Court concluded on issue 2, in the words, “It is evident from record that on the very first day of appearance of accused neither charge was framed nor Notice of Accusation was put to him and it was also not recorded that substance of accusation was communicated to him for his response as to whether he pleads guilty or has any defence to make. After putting the substance of accusation/Notice of Accusation to the accused, in case of not pleading guilty by him, the Magistrate would have either recorded substance of accusation to follow the procedure in summary trial or would have followed procedure for regular trial after putting notice of accusation or framing the charge as the case may be and thereafter would have asked the complainant to lead any further evidence, if any, in support of his case and thereafter occasion to entertain application under Section 145(2) of NI Act would have arisen to pray for summoning and examining the persons who might have given evidence on affidavit i.e. only after filing/leading any other further evidence or opting for not to lead further evidence by the complainant not prior to that.”

Decision

Allowing the present petition, the Court said, “Serious mistake committed by the trial Court is not mere irregularity but illegality”. It further issued necessary directions to the trial court of considering the said application “…after putting notice of accusation to accused, at the stage of or after calling for further evidence of complainant, if any, to be filed/led on behalf of complainant in support of his case.”[Vikas Sharma v. Vishant Bali,  2020 SCC OnLine HP 2876, decided on 08-12-2020]


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Case BriefsHigh Courts

Kerala High Court: R. Narayana Pisharadi, J., while observing the instant matter asked the trial court to reconsider the question whether the suit document is a bond or an agreement.

The instant suit was filed for the realisation of money and certain other reliefs. The claim for money was based on the document allegedly executed by the first defendant in favour of the plaintiff.

When the said document was tendered in evidence, the defendants raised an objection to the marking of the document on the ground that it is a bond and it is an insufficiently stamped document.

Trial Court in its decision had found that the suit document was only an agreement and not a bond.

Defendants had also raised an objection contending that the document was a mortgage deed and it should be compulsorily registrable.

Analysis

Section 2(a) of the Kerala Stamp Act, 1959 defined a bond as follows:

“(a) ‘bond’ includes —
(i) any instrument whereby a person

obliges himself to pay money to another, on condition that the obligation shall be void if a specified act is performed, or is not performed, as the case may be;

(ii) any instrument attested by a witness and not payable to order or bearer, whereby a person obliges himself to pay money to another; and

(iii) any instrument so attested, whereby a person obliges himself to deliver grain or other agricultural produce to another;”

It was observed that the above-stated definition is identical to the definition of bond in Section 2(5) of the Indian Stamp Act, 1899. The said definition includes all types of instruments.

Petitioner’s Senior Counsel submitted that the suit document comes under Clause (ii) mentioned above. But, learned counsel for the first respondent would contend that in order to attract Clause (ii) of Section 2(a) of the Act, the obligation created by the document shall be to pay a definite or specified amount and not something to be determined by the Court.

Further, it was submitted that in the instant case the document does not create an obligation to pay a definite or specified amount and therefore, it is not a bond but only agreement.

Suit document is styled as an agreement. But, for finding out the true character of the instrument, one has to read the instrument as a whole and then find out the dominant purpose. The test is not what the document calls itself or what form it adopts but what is the true meaning and effect of the terms contained therein.

Delhi High Court’s decision in Hamdard Dawakhana (Wakf),1967 SCC OnLine Del 36, the full bench of the court considered the distinction between the bond and an agreement. In this decision, it was observed that it is trite to say that every bond is an agreement and so is the case with a mortgage or sale or exchange but what the court has to see is whether that agreement has acquired the character of a “bond”.

Distinguishing Feature of a Bond

Bond has an obligation to pay money created by the instrument itself.

A document which evidences acknowledgement of an antecedent obligation or a pre-existing liability would not normally become a bond.

The real test to decide whether a particular document is a bond or not is to find out, after reading the document as a whole, whether an obligation is created by the document itself or whether it is merely an acknowledgment of a pre-existing liability.

Where the obligation is a pre-existing one, the subsequent document or the document executed subsequently, giving the nature of the obligation or the terms and conditions of the contract, shall be a mere agreement.

Trial Court failed to take into consideration the fact that, as per the terms of the document, a liability is created for a fixed amount, that is, the amount borrowed and 10% of that amount. Adding to this, it also did not consider whether the stipulation in the document is sufficient to treat it as a bond. Principles mentioned in the Supreme Court cases have also not been referred by the trial court.

High Court allowed the original petition and further stated that the trial court shall consider the question of whether the suit document is a bond or an agreement. [A.V. Ravi v. M.M. Abdulkhadar,  2020 SCC OnLine Ker 8185, decided on 01-12-2020]