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Bhiwani

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the jurisdiction to entertain a petition filed under Section 138 of the Negotiable Instruments Act. = whether the Court within the jurisdiction whereof, the complainant had presented the dishonoured cheque (issued by an accused), had the jurisdiction to entertain a petition filed under Section 138 of the Negotiable Instruments Act. = “14. The offence under Section 138 of the Act can be completed only with the concatenation of a number of acts. Following are the acts which are components of the said offence: (1) Drawing of the cheque, (2) Presentation of the cheque to the bank, (3) Returning the cheque unpaid by the drawee bank, (4) Giving notice in writing to the drawer of the cheque demanding payment of the cheque amount, (5) failure of the drawer to make payment within 15 days of the receipt of the notice. 15. It is not necessary that all the above five acts should have been perpetrated at the same locality. It is possible that each of those five acts could be done at 5 different localities. But concatenation of all the above five is a sine qua non for the completion of the offence under Section 138 of the Code. In this context a reference to Section 178(d) of the Code is useful. It is extracted below: “Where the offence consists of several acts done in different local areas, it may be inquired into or tried by a Court having jurisdiction over any of such local areas.” 16. Thus it is clear, if the five different acts were done in five different localities any one of the courts exercising jurisdiction in one of the five local areas can become the place of trial for the offence under Section 138 of the Act. In other words, the complainant can choose any one of those courts having jurisdiction over any one of the local areas within the territorial limits of which any one of those five acts was done. As the amplitude stands so widened and so expansive it is an idle exercise to raise jurisdictional question regarding the offence under Section 138 of the Act.”= We have perused the aforesaid decision of this Court in Harman Electronics Private Limited (Supra) and we find on a reading of paragraphs 11 and 12 of the judgment in the aforesaid case that in that case the issue was as to whether sending of a notice from Delhi itself would give rise to a cause of action for taking cognizance of a case under Section 138 of the Negotiable Instruments Act when the parties had been carrying on business at Chandigarh, the Head Office of the respondent-complainant was at Delhi but it had a branch at Chandigarh and all the transactions were carried out only from Chandigarh. On these facts, this Court held that Delhi from where the notice under Section 138 of the Negotiable Instruments Act was issued by the respondent would not have had jurisdiction to entertain the complaint under Section 138 of the Negotiable Instruments Act. This question does not arise in the facts of the present case. 7. For the aforesaid reasons, we allow the appeal, set aside the impugned judgment of the High Court and remand the matter to the Chief Judicial Magistrate, Sopore for decision in accordance with law.” (emphasis is ours) 7. In view of the above, having taken into consideration the factual position noticed by the High Court in paragraph 13 of the impugned judgment, we are of the view, that the High Court erred in concluding that the courts at Delhi, did not have the jurisdiction to try the petition filed by the appellant under Section 138 of the Negotiable Instruments Act. The impugned order dated 27.4.2012 passed by the High Court is accordingly liable to be set aside. The same is, therefore, hereby set aside.

 published in http://judis.nic.in/supremecourt/imgst.aspx?filename=40783 REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.1457 OF 2013 (Arising out of SLP (Criminal) No. 7325 of 2012) M/s. Escorts Limited … Appellant Versus Rama Mukherjee … Respondent J U D G M E N T Jagdish Singh Khehar, J. 1. This Court on 21.2.2013 directed that … Continue reading

Dying Declaration =It may not be an absolute proposition of law that a dying declaration should be recorded by a Magistrate There is nothing on record to suggest that Dr. Rajinder Rai (PW- 4) is an unreliable witness. To the contrary, he is a natural witness and his testimony has not been shaken during a long cross examination. The theory of tutoring is also ruled out in the present case as the accused persons only were present with the deceased during that time and none of the family members of the deceased were present when the dying declaration was recorded by the Doctor. The husband (appellant no.1) Manoj has also affixed his signature on the MLR on which the dying declaration was recorded by the Doctor. The evidence of PW-4 is trustworthy, cogent and reliable. What we find in the present case is that the dying declaration (Ext.PF) which was recorded by Dr.Rajinder Rai (PW-4) was also signed by Manoj (appellant no.1) which indicates that appellant No.1 was present when statement was recorded. Nothing on the record to suggest that any of the relation of the deceased was present to influence Dr. Rajinder Rai (PW-4). The law is well settled that if the declaration is made voluntarily and truthfully by a person who is physically in a condition to make such statement, then there is no impediment in relying on such a declaration. Such view was taken by this Court in Kanaksingh Raisingh Rav v. State of Gujarat, (2003) 1 SCC 73 wherein this Court held: the law is well settled i.e. if the declaration is made voluntarily and truthfully by a person who is physically in a condition to make such statement, then there is no impediment in relying on such a declaration. In the instant case, the evidence of PW 5, the doctor very clearly shows that the deceased was conscious and was medically in a fit state to make a statement. It is because of the fact that a Judicial Magistrate was not available at that point of time, he was requested to record the statement, which he did. His evidence in regard to the state of mind or the physical condition of the deceased to make such a declaration has not been challenged in the cross- examination. That being so, it should be held that the deceased was in a fit state of mind to make a declaration as held by the courts below. The next question for our consideration is whether this statement is voluntary and truthful. It is not the case of the defence that when she made the statement either she was surrounded by any of her close relatives who could have prompted her to make an incorrect or false statement. In the absence of the same so far as the voluntariness of the statement is concerned, there can be no doubt because the deceased was free from external influence or pressure. So far as the truthfulness of the statement is concerned, the doctor (PW 5) has stated that she has made the said statement which, as noted above, is not challenged in the cross-examination. The deceased in her brief statement has, in clear terms, stated that because of the quarrel between her and the accused, the accused had poured kerosene and set her on fire which, in our opinion, cannot be doubted………”

published in http://judis.nic.in/supremecourt/imgst.aspx?filename=40535 REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.1853 OF 2012 MANOJ & ORS. …APPELLANTS Versus STATE OF HARYANA …RESPONDENT J U D G M E N T SUDHANSU JYOTI MUKHOPADHAYA, J. The appellants in this case were found guilty of offence punishable under Sections 498-A and 304-B Indian … Continue reading

whether the Court, where a cheque is deposited for collection, would have territorial jurisdiction to try the accused for an offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (in short “the N.I.Act”) or would it be only the Court exercising territorial jurisdiction over the drawee bank or the bank on which the cheque is drawn? = whether the sending of notice from Delhi itself would give rise to a cause of action in taking cognizance under the N.I. Act. In such circumstances, we are of the view that Harman Electronics (supra) is only an authority on the question where a court will have jurisdiction because only notice is issued from the place which falls within its jurisdiction and it does not deviate from the other principles laid down in K. Bhaskaran (supra). This Court has accepted that the place where the cheque was presented and dishonoured has jurisdiction to try the complaint. In this way, this Court concluded that issuance of notice would not by itself give rise to a cause of action but communication of the notice would. In other words, the court clarified only on the service in such notice and failure on the part of the accused to pay the demanded amount within a period of 15 days, thereafter, the commission of an offence completes. We are of the view that this Court in Harman Electronics (supra) affirmed what it had said in K. Bhaskaran (supra) that court within whose jurisdiction the cheque is presented and in whose jurisdiction there is failure to make payment within 15 days of the receipt of notice can have jurisdiction to try the offence under Section 138 of the N.I. Act. It is also relevant to point out that while holding that the Chandigarh Court has jurisdiction, this Court in Harman Electronics (supra) observed that in the case before it, the complaint was silent as to whether the said cheque was presented at Delhi. In the case on hand, it is categorically stated that the cheque was presented at Bhiwani whereas in Harman Electronics (supra) the dishonour had taken place at Chandigarh and this fact was taken into account while holding that Chandigarh court has jurisdiction. In the complaint in question, it is specifically stated that the dishonour took place at Bhiwani. We are also satisfied that nothing said in Harman Electronics (supra) had adverse impact on the complainant’s case in the present case. we must note that in K. Bhaskaran (supra), this Court has held that Section 178 of the Code has widened the scope of jurisdiction of a criminal court and Section 179 of the Code has stretched it to still a wider horizon. Further, for the sake of repetition, we reiterate that the judgment in Ishar Alloy (supra) does not affect the ratio in K. Bhaskaran (supra) which provides jurisdiction at the place of residence of the payer and the payee. We are satisfied that in the facts and circumstances and even on merits, the High Court rightly refused to exercise its extraordinary jurisdiction under Section 482 of the Code and dismissed the petition filed by the appellantaccused. In the light of the above discussion, we hold that the ratio laid down in K.Bhaskaran (supra) squarely applies to the case on hand. The said principle was correctly applied by the learned Sessions Judge as well as the High Court. Consequently, the appeal fails and the same is dismissed. In view of the dismissal of the appeal, the interim order granted by this Court on 09.12.2011 shall stand vacated.

published in http://judis.nic.in/supremecourt/filename=40477 Page 1 Page 1 REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL No. 808 OF 2013 (Arising out of S.L.P. (Crl.) No. 9434 of 2011) Nishant Aggarwal …. Appellant(s) Versus Kailash Kumar Sharma …. Respondent(s) J U D G M E N T P.Sathasivam,J. 1) Leave granted. 2) The question … Continue reading

FAILURE OF INVESTIGATION OFFICER , DOES NOT HAMPER THE CONVICTION, IF IT IS OTHERWISE SOUND – unless lapses made on the part of Investigating authorities are such, so as to cast a reasonable doubt on the case of the prosecution, or seriously prejudice the defence of the accused, the court would not set aside the conviction of the accused merely on the ground of tainted investigation. = “It is well established on record that SI Rajesh Kumar had not conducted the investigation properly and he was favourably inclined to the appellant and therefore, spoiled the case. – Investigating Officer did not care to get the same photographed nor mentioned the same anywhere in the investigation proceedings. Therefore, the complainant cannot be made to suffer for the lapse of the Investigating Officer…….= The complainant named the appellant and his co-accused Kalia in the FIR itself. However, distorted version was recorded in the FIR and when the complainant party received copy of FIR on 26.1.2005 (as stated by Birma Devi PW.4), they learnt of the same= The appellant had been named in the FIR on 7.1.2005, but still SI Rajesh Kumar did not even join him in investigation and did not interrogate him, what to talk of arresting him. The statements of Maya Devi and Birma Devi, therefore, cannot be discarded in view of the manner in which SI Rajesh Kumar was conducting the investigation from the very beginning.”= (i) There is no reason for the false implication of the appellant, who being the Sarpanch of the village was an influential person. (ii) Omkar Singh (PW.8) was an independent witness and there was no ground to disregard his testimony. (iii) Abadi was at some distance from the place of occurrence. Therefore, the hue and cry raised by Raj-deceased, and subsequently by Maya Devi (PW.3), could not have attracted the attention of any person. (iv) No attempt was made by the defence to falsify the allegation of the non payment of the sum of Rs.47,000/-, as consideration for the sale of a buffalo by the deceased to the appellant. = In view of the above, we do not find any force in the appeal, which lacks merit and is accordingly, dismissed. 19. Before parting with the case, we feel it necessary to bring the matter to the notice of the administration of the State of Haryana that in spite of the fact that certain serious findings have been recorded by the Trial Court, as well as by the High Court regarding the unfair investigation conducted by Shri Rajesh Kumar, who was the SHO of the Police Station, Sadar Dadri on 7.1.2005, but for the reasons best known to the administration, no action was taken against him. We have no words to express our anguish, and fail to understand under what circumstances the State authorities have adopted such an indifferent attitude where a helpless divorcee has been murdered, and her widowed mother has been crying and running from pillar to post to secure justice, but the administration did not feel it necessary to wake up from its deep slumber. We request the learned Chief Secretary of the State of Haryana to examine the case, and proceed in accordance with law. A copy of the judgment be sent by the registry directly to the Chief Secretary, Haryana.

Page 1     REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.1474 of 2010 Karan Singh …Appellant Versus State of Haryana & Anr. …Respondents J U D G M E N T Dr. B.S. CHAUHAN, J. 1. This appeal has been preferred against the impugned judgment and order dated 6.2.2009 in … Continue reading

the expression ‘any person’, contained in Section 8, does not include a joint-owner (hisedar). It has been admitted by the parties that the appellants and their ancestors were hisedars/joint owners/co-sharers in the shamilat deh from a period prior to even 1935-36. The pleadings of the appellants, in fact, begin with such admission by them. 18. Provisions of Section 10 of the Tenancy Act put a complete embargo on a hisedar/joint-owner to claim occupancy rights. There is no agreement between the appellants and Gram Panchyat creating any tenancy in their favour. Granting the relief to the appellants would amount to ignoring the existence of Section 10 itself and it would be against all norms of interpretation which requires that statutory provisions must be interpreted in such a manner as not to render any of its provision otiose unless there are compelling reasons for the court to resort to that extreme contingent. 19. Thus, in view thereof, we do not see any cogent reason to interfere with the well-reasoned judgment of the High Court impugned before us. The appeals lack merit and are dismissed accordingly. However, in the facts and circumstances of the case, there shall be no order as to costs.

REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NOs. 8845-8850  OF 2003 Tara Chand & Ors. …Appellants Versus Gram Panchayat Jhupa Khurd & Ors. …Respondents J U D G M E N T Dr. B. S. CHAUHAN, J. 1.      These appeals have been preferred against  the  judgments  and orders … Continue reading

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