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Cryptic and non-speaking orders not maintainable and are liable to be set aside

 

 

High court with out discussing the pleadings- with out assigning

 

English: The supreme court of india. Taken abo...

English: The supreme court of india. Taken about 170 m from the main building outside the perimeter wall (Photo credit: Wikipedia)

 

valid reasons – cryptically quashed the complaint which was taken cognizance by Lower court  by it’s non-speaking orders – Apex court set aside & remanded for afresh disposal = 

 

the impugned judgment does not disclose as to how this finding was arrived at and that it was a non-speaking  order.

 

  “On perusal of the nature of allegations made in  the  complaint

 

           petition and the statements given by  the  complainant  and  the

 

           witnesses, it is clearly disclosed that the dispute is civil  in

 

           nature relating  to  settlement  of  the  accounts  between  the

 

           parties and no offence is made out.”

 

 

 

 

 

what is meant by “reasons”?  

 

In the context of legal decision  making,  the focus is to what makes something a legal valid reason.  

 

Thus,  “reason

 

      would mean a justifying reason, or more simply a justification  for  a

 

      decision is a consideration, in a  non-arbitrary  ways  in  favour  of

 

      making or accepting that – decision.  

 

If there is no justification in support of a decision,  such a decision is without any reason or justifying reason.

 

 

 

      15.   We are  not  entering  into  a  jurisprudential  debate  on  the

 

      appropriate theory of legal reasoning. 

 

It is not even a  discourse  on how to write judgments. 

 

Our intention is  to  simply  demonstrate  the

 

      importance of legal reasoning in support  of  a  particular  decision.

 

      

 

What we have highlighted is that instant is a case or  arriving  at  a

 

      conclusion, in complete absence of reasons, what to talk  of  adequate

 

      or good reasons that justifying that conclusion.

 

 

 

      16.   In the given case, 

 

it was required by the  High  Court  to  take

 

      note of the arguments  of  the  complainant  on  the  basis  of  which

 

      complainant insist that ingredients of the particular offences alleged

 

      are prime facie established justifying the cognizance of the complaint

 

      and the arguments of the respondents herein  on  the  basis  of  which

 

      respondents made an endeavour to demonstrate that it was a pure  civil

 

      dispute with no elements of  criminality  attached.   

 

Thereafter,  the

 

      conclusion should have been backed by reasons as to why the  arguments

 

      of the complainant are merit less and what is the rationale basis  for

 

      accepting the case of accused persons. 

 

We hope that this aspect  would

 

      be kept in mind by the High Court while deciding the case afresh.

 

 

 

      –

 

 

 

      17.   Accordingly, this appeal is allowed and the  impugned  order  is

 

      set aside with direction as aforesaid.  No costs.

 

 

 

REPORTABLE

 

 

 
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1875/2013
(Arising out of Special Leave Petition (Crl.) No. 2509/2012)

 

 

 

 

 
M/s. Shree Mahavir Carbon Ltd.
…Appellant(s)

 
Versus

 
Om Prakash Jalan (Financer) & Anr.
…Respondent(s)

 

 

 

 

 
J U D G M E N T

 
A.K.SIKRI,J.

 
1. Leave granted.

 

 

 
2. The appellant-company has filed a complaint registered as ICC
No.62/2008 under Sections 420/406/468/471, Indian Penal Code against
the respondent herein and two others. After recording preliminary
evidence, the learned Judicial Magistrate First Class (JMFC), Salipur,
Orissa took cognizance of the aforesaid offence and issued summons to
the accused persons including the respondents. On receiving the
summons, the respondents filed applications under Section 482 of the
Code of Criminal –

 

Procedure with a prayer that orders dated 9.6.2008 by the learned JMFC
taking cognizance of the complaint be quashed. It was pleaded that
the complaint was with regard to rendition of accounts maintained by
the accused persons in respect of business between the complainant and
the accused persons and therefore the dispute was of civil nature.
The High Court has allowed the said application thereby setting aside
orders taking cognizance of the offence. It is this order which is
challenged by the appellant-complainant in these proceedings.

 

3. The impugned order is two page order. After taking note of facts
in one paragraph, the High Court has allowed the application and
quashed the order taking cognizance of the offence and the discussion
leading to this judgment is contained in the following paragraph:

 

“On perusal of the nature of allegations made in the complaint
petition and the statements given by the complainant and the
witnesses, it is clearly disclosed that the dispute is civil in
nature relating to settlement of the accounts between the
parties and no offence is made out.”

 

 

 

4. Questioning the rationality of the aforesaid order, Mr. Ganguli,
the learned senior counsel appearing for the appellant, took us
through the various paragraphs of the complaint on the basis of which
he made an attempt to demonstrate that it was not simply a civil
dispute pertaining to –

 

settlement of accounts between the parties. He also argued that the
High Court had allowed petition filed by the respondent under Section
482,Cr.P.C. without giving any reason inasmuch as the impugned
judgment hardly contained any discussion for arriving at the
conclusion that the dispute in question was civil in nature. Learned
senior counsel, who appeared for the respondent, though tried to argue
that conclusion of the High Court that dispute was of civil nature, he
candidly concededly that the impugned judgment does not disclose as to
how this finding was arrived at and that it was a non-speaking order.
He, thus, submitted that instead of this Court examining the issue,
the matter be relegated back to the High Court for hearing afresh.
Mr. Ganguly also accepted this suggestion of Mr. Giri. Accordingly,
we set aside the impugned judgment and remand the case back to the
High Court to decide the same with direction to hear afresh the
petition filed by the respondent under Section 482 of the Cr.P.C. and
decide it on merits without being influenced by the earlier view taken
in the impugned order dated 16.1.2012.

 

5. Before we part with, we would like to observe that this case
necessitates making certain comments on the importance of rationale
legal reasoning in support of judicial orders. From the extracted
portion, which is the only discussion on the merits of the matter, it
can clearly be discerned –

 

that what is stated is the conclusion and no reasons are given by the
High Court for holding that dispute between the parties is civil in
nature. The complainant in its complaint had made various specific
allegations of cheating, siphoning of funds and falsification of
accounts etc. In the complaint filed by the appellant, the appellant
averred that it is engaged in the business of manufacturing and sale
of low ash phos metallurgical coke. The appellant entered into a
tripartite agreement dated 08.04.2003 with Om Prakash Jalan respondent
No.1 herein and Mr. Rajeev Maheshwari-Respondent No.3 herein. In this
agreement Respondent Nos.1 and 3 agreed to provide sufficient funds
for expansion of the coke oven plant owned by the appellant and in
consideration thereof the respondents were to be allotted 70% of the
existing shares of the appellant company while 30% of its shares were
to be retained by the existing shareholders. It was also agreed that
the Board of Directors of the appellant Company would be reconstituted
with three directors consisting of one nominee of the appellant
company, and one nominee each from the respondent companies.
Respondent No.1 was to become the Managing Director of the Company.
It was further agreed between the parties that while the respondent
would bring in the additional working capital for operation and
expansion of the plant but one of the –

 

contracting parties shall be entitled to withdraw any profits till
such time there is enough working capital in the company.

 

6. It was further agreed that the profit and loss as earned for the
new expansion would be shared in the same ratio till 31st March 2004
and thereafter on the total plant would also be shared in the same
ratio. Pursuant to the said agreement the control and management of
the appellant company and its Coke Oven Plant was virtually taken over
by the respondents while they remained responsible to both the Company
and its existing shareholders who have been running the business since
the inception of the company till the execution of the tripartite
agreement.

 

7. As per the allegation in the complaint, no sooner the
respondents assumed control over the business of the appellant
company, the respondents started indulging in large scale fraudulent
transactions for and on behalf of the company, subjecting the
appellant company to great loss and consequences and also foisted
civil and criminal liabilities on the company as well as its Directors
and shareholders. Large amount of money from the appellant company’s
account was allegedly siphoned out in favour of third parties without
the appellant company having any transaction with them. Large amounts
were also allegedly deposited in the appellant company’s account in
cash purportedly received by them from third parties, thus –

 

making the appellant company, its directors and shareholders liable
for violation of laws and commission of crime. It was also alleged
that large sums of money was also siphoned out from bank accounts of
the appellant company and paid to third parties without the company
entering into any transaction with them.

 

8. In the complaint instances of siphoning of the funds by the
accused persons to its own company have been given. On this basis,
the appellant/complainant sought to make a complaint that the
aforesaid acts of the accused persons amounted to offence since
punishable under Sections 419,420,406,486,471 of the IPC.

 

9. The JMFC after going through the preliminary evidence recorded
by him had chosen to take cognizance of the matter. Challenge against
this order has been accepted by the High Court it becomes the bounden
duty of the High Court to give appropriate and sufficient reasons on
the basis of which it arrived at a conclusion, the dispute was merely
that of accounts with no elements of criminality. We are conscious of
the legal position that Ingredients of each of the provisions of IPC,
which is sought to be foisted upon the respondents are to be prima
facie established before cognizance of the complaint is taken by the
Judicial Magistrate. However, when the summoning order is quashed
holding that it is a civil dispute, various –

 

allegations and averments made in the complaint and preliminary
evidence led in support thereof has to be appropriately dealt with by
the High Court. We are not commenting upon the merits of these
allegations. However, there is no discussion worth the name, in the
impugned judgment, as to how and on what basis the High Court accepted
such a plea of the respondents herein, in recording its conclusion
that it was a case of rendition of accounts simplicitor.

 

10. After all the High Court was setting aside the order of the
Subordinate Court by which Subordinate Court had taken cognizance in
the matter. This could be done after appropriately dealing with the
contentions of both the parties, more specially when it was first
judicial review of the orders of the Court below. In Hindustan Times
Ltd. Vs. Union of India; (1998) 2 SCC 242, this Court made pertinent
observation in the context:

 

“In an article on Writing Judgments, Justice Michael Kirby
(1990) 64 Austr L.J p.691) of Australia, has approached the
problem from the point of the litigant, the legal profession,
the subordinate Courts/tribunals, the brother Judges and the
Judge’s own conscience. To the litigant, the duty of the Judge
is to uphold his own integrity and let the losing party know why
he lost the case. The legal profession is entitled to have it
demonstrated that the Judge had the correct principles in mind,
had properly applied them and is entitled to examine the body of
the judgment for the learning and precedent that they provide
and for the reassurance of the quality of the judiciary which is
still the centre-piece of our administration of justice. It does
not take long for the profession to come to know, including
through –

 

the written pages of published judgments, the lazy Judge, the
Judge prone to errors of fact, etc. The reputational
considerations are important for the exercise of appellate
rights, for the Judge’s own self discipline, for attempts at
improvement and the maintenance of the integrity and quality of
our judiciary. From the point of view of other Judges, the
benefit that accrues to the lower hierarchy of Judges and
tribunals is of utmost importance. Justice Asprey of Australia
has even said in Petit v. Dankley (1971) (1) NSWLR 376 (CA) that
the failure of a Court to give reasons is an encroachment upon
the right of appeal given to a litigant.

 

 

 
It was finally stated:

 

 

 
“In our view, the satisfaction which a reasoned judgment
gives to the losing party or his lawyer is the test of a good
judgment. Disposal of cases is no doubt important but quality of
the judgment is equally, if not more, important. There is no
point in shifting the burden to the higher Court either to
support the judgment by reasons or to consider the evidence or
law for the first time to see if the judgment needs a reversal.

 

 

 
In that case, the order of dismissal of the writ petition
by the High Court was affirmed by us but the task fell on the
Supreme Court, to inform the appellant why it had lost the case
in the High Court.”

 

 

 
11. In the present case, we have avoided to do this exercise and
have not gone into the merits of the case to find out whether the
conclusion of the High Court is correct or not, as the counsel for
both the parties have agreed for remand of the matter.

 

 

12. It is no where suggested by us that the judgment should be too
lengthy or prolix and disproportionate to the issue involved.
However, it is to be borne in mind that the principal objective in
giving judgment is to make an effective, practical and workable
decision. The court resolves conflict by determining the merits of
conflicting cases, and by choosing between notions of justice,
convenience, public policy, morality, analogy, and takes into account
the opinions of other courts or writers (Precedents). Since the Court
is to come to a workable decision, its reasoning and conclusion must
be practical, suit the facts as found and provide and effective,
workable remedy to the winner.

 

13. We are of the opinion that while recording the decision with
clarity, the Court is also supposed to record sufficient reasons in
taking a particular decision or arriving at a particular conclusion.
The reasons should be such that they demonstrate that the decision has
been arrived at on a objective consideration.

 

14. When we talk of giving “reasons” in support of a judgment, what
is meant by “reasons”? In the context of legal decision making, the
focus is to what makes something a legal valid reason. Thus, “reason
would mean a justifying reason, or more simply a justification for a
decision is a consideration, in a non-arbitrary ways in favour of
making or accepting that –

 

decision. If there is no justification in support of a decision, such
a decision is without any reason or justifying reason.

 

15. We are not entering into a jurisprudential debate on the
appropriate theory of legal reasoning. It is not even a discourse on
how to write judgments. Our intention is to simply demonstrate the
importance of legal reasoning in support of a particular decision.
What we have highlighted is that instant is a case or arriving at a
conclusion, in complete absence of reasons, what to talk of adequate
or good reasons that justifying that conclusion.

 

16. In the given case, it was required by the High Court to take
note of the arguments of the complainant on the basis of which
complainant insist that ingredients of the particular offences alleged
are prime facie established justifying the cognizance of the complaint
and the arguments of the respondents herein on the basis of which
respondents made an endeavour to demonstrate that it was a pure civil
dispute with no elements of criminality attached. Thereafter, the
conclusion should have been backed by reasons as to why the arguments
of the complainant are merit less and what is the rationale basis for
accepting the case of accused persons. We hope that this aspect would
be kept in mind by the High Court while deciding the case afresh.

 

 

17. Accordingly, this appeal is allowed and the impugned order is
set aside with direction as aforesaid. No costs.

 
.…………………………..J.
[K.S.Radhakrishnan]

 

 

 

 

 
…………………………..J.
[A.K.Sikri]

 

 

 
New Delhi,
October 28, 2013

 

 

 

 

 

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