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S.B. Sinha
Evidence Act, 1872: ss. 101 and 102-Burden of proof-Suit for declaring sale deed as void-Forgery and fabrication of document alleged-Held, with a view to prove forgery or fabrication in a document, possession of the same by defendant would not change legal position-Initial burden of proof would be on plaintiff-The fact that defendant was in a dominant position must be proved by plaintiff at the first instance. Evidence-Burden of proof and onus of proof-Distinction between-Explained. Words and Phrases: Expressions `burden of proof’ and `onus of proof’-Connotation of in the context of Evidence Act. Suit-Framing of issues-Practice and Procedure. Pursuant to an agreement of sale between respondent and appellant, a sale deed was executed on 26.3.1991. Later, the respondent filed a suit for declaration that the said sale deed was void as the same was forged and fabricated. The defendant-appellant denied the allegations. On pleadings of the parties the trial court framed the following issue: “Whether the sale deed dated 26.3.1991 is forged and fabricated as prayed for?” On an application by the plaintiff, the trial court observed that onus to prove an issue was to be discharged in affirmative and it would always be difficult to prove the same in negative, and reframed the issue as under: “Whether the alleged sale deed dated 26.3.1991 is a valid and genuine document?” The revision application of the defendant was dismissed by the High Court observing that defendant was in a dominant position to prove the document affirmatively. Aggrieved, the defendant filed the present appeal. Citation: 2006 AIR 1971,2006(1 )Suppl.SCR659 ,2006(5 )SCC558 ,2006(5 )SCALE153 ,2006(11 )JT521- Allowing the appeal, the Court HELD: 1.1. In view of Section 101 of the Evidence Act, the initial burden of proof would be on the plaintiff. The trial court and the High Court proceeded on the basis that the defendant was in a dominating position and there had been a fiduciary relationship between the parties. The appellant in his written statement denied and disputed the said averments made in the plaint. The fact that the defendant was in a dominant position must be proved by the plaintiff at the first instance. [662-h; 663-b-c; e] Krishna Mohan Kul @ Nani Charan Kul & Anr. v. Pratima Maity & Ors., AIR (2003) SC 4351, distinguished. 1.2. With a view to prove forgery or fabrication in a document, possession of the original sale deed by the defendant would not change the legal position. A party in possession of a document can always be directed to produce the same. The plaintiff could file an application calling for the said document from the defendant and the defendant could have been directed by the Trial Judge to produce the same. [655-d-e] 2. It should be borne in mind that a distinction exists between burden of proof and onus of proof. The right to begin follows onus probandi. It assumes importance in the early stage of a case. The question of onus of proof has greater force, where the question is which party is to begin. Burden of proof is used in three ways: (i) to indicate the duty of bringing forward evidence in support of a proposition at the beginning or later, (ii) to make that of establishing a proposition as against all counter evidence; and (iii) an indiscriminate use in which it may mean either or both of the OTHERS The elementary rule in Section 101 is inflexible. In terms of Section 102 the initial onus is always on the plaintiff and if he discharges that onus and makes out a case which entitled him to a relief, the onus shifts to the defendant to prove those circumstances, if any, which would disentitle the plaintiff to the same. [655-f-h; 666-a] R.V.E. Venkatachala Gounder v. Arulmigu Viswesaraswami & V.P. Temple and Anr., JT (2004) 6 SC 442, relied on. 3. The order reframing the issue is set aside thus reviving the issue originally framed. [666-d] Suresh Kumari and A.P. Mohanty for the Appellant. Shalil Sagar, Pratap Venugopal and E. Venu Kumar for M/s. K.J. John & Co., for the Respondent.
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 5 CASE NO.: Appeal (civil) 2413 of 2006 PETITIONER: Anil Rishi RESPONDENT: Gurbaksh Singh DATE OF JUDGMENT: 02/05/2006 BENCH: S.B. Sinha & P.K. Balasubramanyan JUDGMENT: J U D G M E N T [Arising out of SLP (Civil) No. 5963 of 2006] S.B. SINHA, … Continue reading
(1) Whether multiplier specified in the Second Schedule appended to the Motor Vehicles Act, 1988 (for short “the 1988 Act”) should be scrupulously applied in all cases? and (2) Whether for determination of the multiplicand, the 1988 Act provides for any criterion, particularly as regards determination of future prospect.- where the deceased was married, the deduction towards personal and living expenses of the deceased, should be one-third (1/3rd) where the number of dependent family members is 2 to 3, one-fourth (1/4th) where the number of dependent family members is 4 to 6, and one-fifth (1/5th) where the number of dependent family members exceeds six. 31. Where the deceased was a bachelor and the claimants are the parents, the deduction follows a different principle. In regard to bachelors, normally, 50% is deducted as personal and living expenses, because it is assumed that a bachelor would tend to spend more on himself. Even otherwise, there is also the possibility of his getting married in a short time, in which event the contribution to the parent(s) and siblings is likely to be cut drastically. Further, subject to evidence to the contrary, the father is likely to have his own income and will not be considered as a dependant and the mother alone will be considered as a dependant. In the absence of evidence to the contrary, brothers and sisters will not be considered as dependants, because they will either be independent and earning, or married, or be dependent on the father. 32. Thus even if the deceased is survived by parents and siblings, only the mother would be considered to be a dependant, and 50% would be treated as the personal and living expenses of the bachelor and 50% as the contribution to the family. However, where the family of the bachelor is large and dependent on the income of the 23 Fakeerappa and Anr. v. Karnataka Cement Pipe Factory and Others; [(2004) 2 SCC 473] 31Page 32 deceased, as in a case where he has a widowed mother and large number of younger non-earning sisters or brothers, his personal and living expenses may be restricted to one-third and contribution to the family will be taken as two-third.” 38. The above does provide guidance for the appropriate deduction for personal and living expenses. One must bear in mind that the proportion of a man’s net earnings that he saves or spends exclusively for the maintenance of others does not form part of his living expenses but what he spends exclusively on himself does. The percentage of deduction on account of personal and living expenses may vary with reference to the number of dependant members in the family and the personal living expenses of the deceased need not exactly correspond to the number of dependants. 39. In our view, the standards fixed by this Court in Sarla Verma17 on the aspect of deduction for personal living expenses in paragraphs 30, 31 and 32 must ordinarily be followed unless a case for departure in the circumstances noted in the preceding para is made out. 40. In what we have discussed above, we sum up our conclusions as follows: (i) In the applications for compensation made under Section 166 of the 1988 Act in death cases where the age of the deceased is 15 years and above, the Claims Tribunals shall select the multiplier as 32Page 33 indicated in Column (4) of the table prepared in Sarla Verma17 read with para 42 of that judgment. (ii) In cases where the age of the deceased is upto 15 years, irrespective of the Section 166 or Section 163A under which the claim for compensation has been made, multiplier of 15 and the assessment as indicated in the Second Schedule subject to correction as pointed out in Column (6) of the table in Sarla Verma17 should be followed. (iii) As a result of the above, while considering the claim applications made under Section 166 in death cases where the age of the deceased is above 15 years, there is no necessity for the Claims Tribunals to seek guidance or for placing reliance on the Second Schedule in the 1988 Act. (iv) The Claims Tribunals shall follow the steps and guidelines stated in para 19 of Sarla Verma17 for determination of compensation in cases of death. (v) While making addition to income for future prospects, the Tribunals shall follow paragraph 24 of the Judgment in Sarla Verma17 . (vi) Insofar as deduction for personal and living expenses is concerned, it is directed that the Tribunals shall ordinarily follow the standards prescribed in paragraphs 30, 31 and 32 of the judgment in 33Page 34 Sarla Verma17 subject to the observations made by us in para 38 above. (vii) The above propositions mutatis mutandis shall apply to all pending matters where above aspects are under consideration. 41. The reference is answered accordingly. Civil appeals shall now be posted for hearing and disposal before the regular Bench.
Page 1 REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 4646 OF 2009 Reshma Kumari and Ors. … Appellants Vs. Madan Mohan and Anr. … Respondents WITH CIVIL APPEAL NO. 4647 OF 2009 JUDGMENT R.M. LODHA,J. A two-Judge Bench (S.B. Sinha and Cyriac Joseph, JJ.) proceeded to hear these appeals on … Continue reading
Motor Vehicles Act, 1988 : s. 166 – Claim petitions by passengers of bus and its driver – Injured in a collision between a bus and a truck – Tribunal holding that bus driver, and not the truck driver, was driving the vehicle in a rash and negligent manner – Claim petitions of passengers allowed and that of driver rejected – High Court rejecting claim petition of bus driver observing that he having not questioned finding of tribunal in passengers’ petitions regarding his negligence and the findings having become final, he was bound thereby – Held: Claimant-bus driver was fully aware of his legal liability – He was also prosecuted in criminal court in that regard – He deposed in claim petitions filed by injured passengers – He was aware that his plea of not being negligent was negatived – He, therefore, was party to the proceedings initiated by passengers and could have preferred an appeal thereagainst – Tribunal and High Court rightly rejected his claim – `Party’ – `Necessary party’ – ` Aggrived person’ – Connotation of – Practice and Procedure – Words & Phrases. In a motor accident stated to have occurred on a collision between a bus belonging to the State Road Transport Corporation and a truck, several passengers traveling in the bus and its driver (the appellant) were injured. The passengers as also the appellant filed a claim petition before the Motor Accident Claims Tribunal. The appellant was also prosecuted in a criminal case for rash and negligent driving. However, that case ended in acquittal. Before the Tribunal the Corporation denied and disputed the case of the passengers that the appellant was driving the bus in a rash and negligent manner. The appellant also examined himself in the claim petitions filed by the passengers and supported the case of the Corporation. The Tribunal heard both the sets of cases together and allowed the claim petitions of the passengers holding that the appellant was driving the bus rashly and negligently. The Corporation did not challenge the awards given in favour of the passengers and the same attained finality. Rejecting the claim petition of the appellant the Tribunal held that it was the appellant, and not the truck driver, who was driving the vehicle rashly and negligently. In the appeal filed by the appellant the High Court affirming the order of the Tribunal held that as the appellant did not question correctness of the award of the Tribunal in the passengers’ cases, although a party aggrieved, he was bound thereby as regards the finding of negligence. In the instant appeal filed by the bus driver, it was contended for the appellant, inter alia, that the awards passed by the Tribunal in the cases of the passengers were not binding on the appellant; and that the High Court erred in holding that although the appellant was not a party in the proceedings, he was an aggrieved person. =Dismissing the appeal, the Court HELD: 1.1 Section 168 of the Motor Vehicles Act,1988 mandates the Tribunal to specify the amount which shall be paid by the owner or the driver of the vehicle involved in the accident or by both or any of them. As it is imperative on the part of the Tribunal to specify the amount payable, inter alia by the driver of the vehicle, a fortiori he should be impleaded as a party in the proceedings. In appropriate cases, liability of the driver may be primary. He may not, however, be a necessary party in the sense that in his absence, the entire proceeding shall not be vitiated as the owner of the vehicle was a party in his capacity as a joint tort feaser. [para 18 and 33 ] [98-B, C] Sitaram Motilal Kalal Vs. Santanuprasad Jaishanker Bhatt AIR 1966 SC 1697; and Municipal Corporation of Greater Bombay Vs. Laxman Iyer and Another (2003) 8 SCC 731 – relied on. Patel Roadways and Another Vs. Manish Chhotalal Thakkar and Others ILR 2000 Kar. 3286; Minu B. Mehta and Another Vs. Balkrishna Ramchandra Nayan and Another AIR 1977 SC 1248; and New India Assurance Co. Vs Munni Devi 1993 ACJ 1066 (M.P.) and Madhya Pradesh State Road Transport Corporation Vs. Vaijanti 1995 ACJ 560 (M.P.) – referred to. 1.2 In the instant case, the appellant was fully aware of his legal liability. He was involved in the criminal case. He deposed in the claim applications filed by the injured persons who were travelling in the bus. He was fully aware that unless he proves his innocence in regard to the charge of rash and negligent driving, he would be held liable therefor, particularly, when he himself had filed the claim petition. It might have been a matter of sharing of liability between him and the driver of the truck. He was aware that his plea of not being negligent has been negatived. He, for all intent and purport, therefore, was a party to the earlier proceedings. If he intended to get rid of the findings recorded by the Tribunal, he could have preferred an appeal thereagainst. He did not choose to do so. It was in that sense, the High Court cannot be said to have committed any error in holding tha the appellant was also an aggrieved person. [para 22 and 25] [100-D, E, F; 104-B] 2.1 In the instant case, two sets of claims cases were heard together, one filed by the passengers of the KSRTC bus and the other filed by the driver of the said bus. Unless the finding of negligence in the claim cases of the passengers was negatived, in the claim cases filed by the driver himself, the said finding of negligence on the part of the driver could not have been varied. [para 23] [101-E, F] 2.2 In the first set of claims cases, the driver of the bus was held to be negligent and, therefore, a ruling that the driver is a necessary party would mean that the bus driver must necessarily be involved in these proceedings. However, the driver of the bus had sufficient opportunity to make a representation against the allegation of negligence as he was examined as RW1 in the claim cases filed by the passengers, even though he was not formally impleaded as a respondent. Hence, the High Court has correctly held that he was a `party’ to the proceedings. [para 23] [101-G, H] 2.3 In the claims filed by the driver of the bus, namely the appellant, specific allegations were made against the driver of the truck. Hence, the driver of the truck was not a necessary party. Here, one must bifurcate the terms `party’ and `necessary party’. `Party’ has been correctly defined by the High Court in the impugned judgment in terms of involvement in the proceedings regardless of formal impleadment. However, a necessary party as defined is one who must be joined in an action because, inter alia, complete relief cannot be given to those already parties their joinder. [para 23] [102-B-E] Black’s Law Dictionary, 5th Edition – referred to. 3.1 The principles of natural justice demand that a person must be given an opportunity to defend his action. Appellant not only made averments as regards absence of negligence on his part; he made specific allegations against the driver of the truck. The driver of the truck alone would have been competent to depose. In a given case, like the present one, the owner of the truck may not defend the action at all keeping in view the fact that the vehicle was an insured one. [para 19-20] [98-D, E, F] Halsbury’s Laws of England, 3rd Edn., Vol. 32 – referredto. 3.2 First and foremost, natural justice would mandate involvement of a driver, as an adverse finding on negligence cannot and should not be made against him without giving him the opportunity to at least make a representation as a witness. More importantly, however, one must look at the kind of evidence which must be led in such cases. To make a finding on negligence without involving the driver, as, at least, a witness would vitiate the proceedings not only on the basis of the fact that the driver has not been given an opportunity to make a representation, but also because the evidence to make a finding regarding negligence would necessarily be inadequate. On this basis, a driver should be made a `party’ to the proceedings. It was done in the instant case. Without contrary evidence led by the appellant or the Corporation, the finding of negligence on the part of the appellant cannot be interfered with. Without a deposition on the part of the truck driver and without his involvement at least as a witness, an adverse finding on negligence cannot be made against him. In any event, the truck driver was examined as RW1. Therefore, in the circumstances, the driver of the bus was examined in the first set of claims cases in the same manner as the driver of the truck was examined in the second set of cases (which has been filed by the Appellant). [para 23 and 24] [102-E, F; 103-D-H; 104-A] 4. Both the Tribunal and the High Court have rightly arrived at a finding of fact that it was the appellant alone who was rash and negligent in driving of the vehicle. No case had been made out to differ with the said finding of fact. [para 25] [104-B, C] Kiran Suri for the Appellant. R.S. Hegde, Chandra Prakash, Rahul Tyagi, J.K. Nayyar, P.P. Singh, D. Varadarajan and Shiv Prakash Pandey for the Respondents.=2008 AIR 2545, 2008(7 )SCR83 , , 2008(7 )SCALE496 ,
CASE NO.: Appeal (civil) 3041 of 2008 PETITIONER: Machindranath Kernath Kasar RESPONDENT: D.S. Mylarappa & Ors. DATE OF JUDGMENT: 29/04/2008 BENCH: S.B. Sinha & V.S. Sirpurkar JUDGMENT: J U D G M E N T REPORTABLE CIVIL APPEAL NO. 3041 OF 2008 [Arising out of SLP (Civil) No. 17711 of 2006] S.B. SINHA, J : … Continue reading
Copyright Act, 1957 – ss.55, 62(1) – Trade Marks Act, 1947 – Two suits having different cause of action – Maintainability of – Held: Not maintainable – Composite suit of infringement of copyright and passing off would thus not lie in the same forum – Code of Civil Procedure, 1908 – O.2 r.3. The question which arose for consideration in the present appeal is whether the High Court was right in holding that the composite suit of infringement of copyright and passing off would not lie in the same forum and that the relief for passing off is covered by decision of Supreme Court in *Dhodha House Case. =Dismissing the appeal, the Court HELD: 1.1. Sub-section(1) of s.55 of Copyright Act, 1957 provides for the remedies in terms whereof the plaintiff shall be entitled to all reliefs by way of injunction, damages, accounts and otherwise as are or may be conferred by law for the infringement of a right. It must be read as `ejusdem generis’. It must take its colour from the words, `any proceeding’ namely the right to obtain a decree by way of injunction, decree for damages, accounts or other incidental reliefs which can be granted by a civil court. Such a provision can be found in the Code of Civil Procedure also, namely Order VI Rule 7 thereof. It is, therefore, correct to read the word “as are or may be conferred by law’ to mean, any other law, violation whereof although would give rise to separate and distinct cause of action. Under the Code, claims arising under a statutes governing substantive procedural law, a number of remedies may be combined. The Court may grant an order of injunction even in a passing off action. It is trite that where the court has the jurisdiction/power to adjudicate, it will necessarily have the incidental power therefor. It may, however, be different if the Court may have exercised a power which is not provided for as a supplemental proceeding. Thus, whereas an incidental power is inherent in the court, a supplemental power may also be exercised, keeping in view the ultimate relief which may be granted by it. [Paras 23, 24] [666-B-G] 1.2. If a person is found to be guilty of violation of copyright he will be bound to pay damages. For the purpose of quantification of damages, taking of the accounts may be necessary and it is in this behalf the Parliament thought it fit to use the word “otherwise”. Thus the power conferred by law within the meaning of sub-section(1) of Section 55 of 1957 Act qualifies the power of the court to grant remedies as envisaged thereunder if any other cause of action arose under a different Act. An action for passing off is common law right but the same does not determine the jurisdiction of the court. For exercising such jurisdiction, the provisions of the Code would be applicable. 1957 Act being a special law would, thus, prevail over the general law, viz., the Code. [Para 25] [667-A,B,C] Exphar Sa & Anr.v. Eupharma Laboratories Ltd.& Anr.(2004) 3 SCC 688 – held inapplicable. State of Punjab and Anr. v. Devans Modern Brewaries Ltd. and Anr. (2004) 11 SCC 26 – relied on. 2. There cannot be any doubt whatsoever that the Parliament having inserted sub-section(2) in section 62 of the 1957 Act, the jurisdiction of the Court thereunder would be wider than the one under Section 20 of the Code. If the impediment is sought to be removed by inserting an incidental provision, there cannot be any doubt the court could be entitled to pass an interim order, but the same cannot be extended to a cause of action which is founded on separate set facts as also rights and liabilities of a party under a different Act. [Paras 27, 28] [668-A,B,D] 3. A composite suit would not entitle a court to entertain a suit in respect whereof it has no jurisdiction, territorial or otherwise. Order II Rule 3 of the Code specifically states so and, thus, there is no reason as to why the same should be ignored. A plaintiff may seek a remedy which can otherwise be granted by the court. It was that aspect of the matter which had not been considered in *Dhoda House but it never meant that two suits having different causes of actions can be clubbed together as a composite suit. [Para 29] [669-A,B,C] *Dhoda House v. S.K. Maingi (2006) 9 SCC 41 – distinguished. Surendra Kumar Maingi v. M/s. Dhodha House AIR (1998) Allahabad 43; Sakri Vasu v. state of U.P. and Ors. (2008) 2 SCC 409 and Hindustan Lever Ltd. v. Ashok Vishnu Kate (1995) 6 SCC 326 – referred to. Fali S. Nariman, Praveen Anand, Hari Shankar K., Subhash Sharma, Sagar Chandra, Abhishta Kumbhat, Vikas Singh Jangra for the Appellant. Shailen Bhatia and Balraj Dewan for the Respondents.=2008 AIR 3123, 2008(9 )SCR652 , , 2008(8 )SCALE385 ,
REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 3637 OF 2008 (Arising out of SLP (C) No.20941 of 2006) Dabur India Ltd. … Appellant Versus K.R. Industries … Respondent JUDGMENT S.B. SINHA, J. 1. Leave granted. 2. Appellant is a manufacturer of a product known as `Dabur Red Tooth Powder’ … Continue reading
Stamp Act, 1899 – ss. 33 and 35 and Article 23 of Schedule 1A (as substituted by M.P. Act No. 19 of 1989) — Execution of sale deed – Execution whereof statutorily barred – Suit by the vendee for recovery of consideration amount – Reliance on the conveyance deed which was not registered – Document impounded, being not duly stamped – Held: Provision of ss. 33 and 35 are applicable, even if the unregistered document sought to be admitted in evidence is for collateral purpose – The purpose for which reliance is placed on the document is not relevant for applicability of the provisions – s. 35 rules out applicability of s. 49 of Registration Act – On facts, the document rightly impounded – Registration Act, 1908 – s. 49. Respondent-a member of Scheduled Tribe sold his immovable property to appellant. Appellant paid the consideration amount for the same, and respondent gave the possession of the property to the appellant. However, the permission for such transfer was not granted. Appellant filed a suit for recovery of the consideration amount. He relied on the agreement which was sought to be registered as a sale deed. As the document was not duly stamped, the court impounded the same. The challenge against the order was not entertained by High Court. In appeal to this Court, appellant contended that since the unregistered sale deed was sought to be put in evidence only for the purpose of recovery of the consideration amount i.e. for collateral purpose, the provisions of ss. 33 and 35 of Stamp Act, shall not be attracted. . =Dismissing the appeal, the Court HELD:1.1. The Parliament has, in Section 35 of Stamp Act, used the words “for any purpose whatsoever”. Thus, the purpose for which a document is sought to be admitted in evidence or the extent thereof would not be a relevant factor for not invoking the provision. The land, in the instant case, is situated in a Scheduled Area. Execution of a deed of conveyance in respect of the land situated in the scheduled area is statutorily barred. All transactions can be effected only upon obtaining the permission of the Collector in terms of the provisions of Section 165 (6) of the C.G. Land Revenue Code, 1959. An instrument was executed. By reason of such an instrument not only the entire amount of consideration was paid but possession of the property had also been transferred. [Paras 12, 13 and 14] [953-C-F] 1.2. By reason of the explanation appended to Article 23 of Schedule IA of the Stamp Act as inserted by M.P. Act 19 of 1989 a legal fiction has been created. Although ordinarily an agreement to sell would not be subject to payment of stamp duty which is payable on a sale deed, but having regard to the purpose and object it seeks to achieve the legislature thought it necessary to levy stamp duty on an instrument whereby possession has been transferred. [Para 15] [954-C-D] 1.3. The possession of the property had been delivered in favour of the appellant. He has, thus, been exercising some right in or over the land in question. Although the agreement was not registered, but registration of the document has nothing to do with the validity thereof as provided for under the provisions of the Registration Act, 1908. In the instant case, by reason of the statutory interdict, no transfer at all is permissible. Even transfer of possession is also not permissible. [Paras 16 and 19] [954-E-F] Pandey Oraon v. Ram Chander Sahu 1992 Supp (2) SCC 77 and Amrendra Pratap Singh v. Tej Bahadur Prajapati and Ors. 2004 (10) SCC 65, referred to. 1.4. Section 33 of Stamp Act casts a statutory obligation on all the authorities to impound a document. The court being an authority to receive a document in evidence is bound to give effect thereto. The unregistered deed of sale was an instrument which required payment of the stamp duty applicable to a deed of conveyance. Adequate stamp duty admittedly was not paid. The court, therefore, was empowered to pass an order in terms of Section 35 of Stamp Act. [Paras 17 and 18] [954-F-H] 1.5. It is not correct to say that the document was admissible for collateral purpose. The Registration Act, 1908 provides for such a contingency in terms of the proviso appended to Section 49 thereof. Section 35 of Stamp Act, however, rules out applicability of such provision as it is categorically provided therein that a document of this nature shall not be admitted for any purpose whatsoever. If all purposes for which the document is sought to be brought in evidence are excluded, the document would not be admissible for collateral purposes. [Paras 19, 20 and 21] [955-A-G-D-E] Ram Rattan v. Parmananad AIR 1946 PC 51, relied on. Bondar Singh v. Nihal Singh 2003 (4) SCC 161, distinguished. Bhaskarabhotla Padmanabhaiah and Ors. v. B. Lakshminarayana and Ors. AIR 1962 A.P. 132; Sanjeeva Reddi v. Johanputra Reddi AIR 1972 A.P. 373; T. Bhaskar Rao v. T. Gabriel and Ors. AIR 1981 A.P. 175; Firm Chuni Lal Tukki Mal v. Firm Mukat Lal Ram Chanda and Ors. AIR 1965 All. 164 and Chandra Sekhar Misra v. Gobinda Chandra Das AIR 1966 Ori. 18, referred to. Case Law Reference: 2003 (4) SCC 161 Distinguished. Para 19 1992 Supp (2) SCC 77 Referred to. Para 19 2004 (10) SCC 65 Referred to. Para 19 AIR 1946 PC 51 Relied on. Para 22 AIR 1962 A.P. 132 Referred to. Para 22 AIR 1972 A.P. 373 Referred to. Para 22 AIR 1981 A.P. 175 Referred to. Para 22 AIR 1965 All. 164 Referred to. Para 22 AIR 1966 Ors. 18 Referred to. Para 22 CIVIL APPELLATE JURISDICTION : Civil Appeal No. 7350 of 2008. From the Judgment and final Order dated 27.02.2007 of the High Court of Chattisgarh in at Bilaspur in W.P. No. 251/2007. A.K. Bajpai, M.F. Khan, Goodwill Indeevar for the Appellant. Suhail Dutt, Ram Gupta, Jagit Singh Chhavra and Ravin Rao for the Respondent =, , , 2009(1 )SCALE80 ,
REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 7350 OF 2008 (Arising out of SLP (C) No. 8651 of 2007) Avinash Kumar Chauhan …. Appellant Versus Vijay Krishna Mishra …. Respondent JUDGMENT S.B. SINHA, J. 1. Leave granted. 2. Interpretation of Sections 33 and 35 of the Indian Stamp Act … Continue reading
Code of Criminal Procedure, 1973: s. 309 – Prayer for stay of criminal proceedings pending probate case – Criminal case alleging the Will to be forged – HELD: Primacy has to be given to criminal case over civil case – Orders of courts below declining to stay criminal proceedings need no interference, in view of the fact that criminal case was instituted much prior to initiation of probate proceedings and because of the conduct of the appellant and the stage in which the probate proceedings are pending – Practice and Procedure – Evidence Act, 1872 – s.41 – Constitution of India, 1950 – Article 136. Evidence Act, 1872: s. 41 – Pendency of probate case – Its effect on criminal case alleging the will to be forged – Held: Pendency of two proceedings, whether civil or criminal, by itself would not attract the provisions of s. 41 – A judgment has to be pronounced – The genuineness of the will must be gone into – s. 41 would become applicable only when a final judgment is rendered – On facts, courts below rightly declined to stay criminal proceedings – Code of Criminal Procedure, 1973 – s.309. The appellant filed an application before the Sub-Registrar, Hazaribagh, Jharkhand for registration of a will dated 3.5.1998 stated to have been executed by one Mst. `SA’, and applied before the Delhi Development Authority for grant of mutation in respect of a property in Delhi on the basis of the alleged will. Mst. `SM’, the daughter of Mst. `SA’ also made an application to the DDA for grant of mutation in respect of the Delhi property in her favour. Mst. `SM’ filed a civil suit in Patna questioning the genuineness of the will dated 3.5.1998,and also filed a criminal complaint u/ss 420/468/444/34 IPC in Delhi against the appellant alleging the will dated 3.5.1998 as a forged one. The appellant filed an application for grant of probate in respect of the will dated 3.5.1998 before the Jharkhand High Court u/s 276 of the Indian Succession Act, 1925. The appellant first filed a writ petition before the Delhi High Court seeking to quash the criminal proceedings and on its dismissal filed an application u/s 309 Cr.P.C. before the Metropolitan Magistrate seeking stay of the proceedings in the criminal case. The said application was dismissed. Appellant’s revision petition also having been dismissed by the High Court, he filed the instant appeal. Meanwhile Mst. `SM’ died after having executed a will in favour of respondent no.2, and the Delhi property was mutated in his name. He was impleaded as respondent no.2 in the appeal. It was contended for the appellant that a judgment in probate proceedings being a judgment in rem as envisaged u/s 41 of the Evidence Act, the criminal proceedings should have been directed to be stayed. =Dismissing the appeal, the Court HELD: 1.1. Section 41 of the Evidence Act, 1872 would become applicable only when a final judgment is rendered. Rendition of a final judgment which would be binding on the whole world being conclusive in nature would take a long time. As and when a judgment is rendered in one proceeding subject to the admissibility thereof keeping in view s.43 of the Evidence Act may be produced in another proceeding. It is beyond any cavil that a judgment rendered by a probate court is a judgment in rem. It is binding on all courts and authorities. Being a judgment in rem it will have effect over other judgments. A judgment in rem indisputably is conclusive in a criminal as well as in a civil proceeding. [Para 12] [1034-D-G] Surinder Kumar & Ors. vs. Gian Chand & Ors. AIR 1957 SC 875; Sardool Singh & Anr. vs. Smt. Nasib Kaur 1987 (Supp.) SCC 146; Mt. Daropti vs. Mt. Santi 1929 Lahore 483 and Darbara Singh vs. Karminder Singh & Ors. AIR 1979 Punjab & Haryana 215 – referred to. Commissioner of Income Tax, Mumbai vs. Bhupen Champak Lal Dalal & Anr. (2001) 3 SCC 459, cited. 1.2. Pendency of two proceedings whether civil or criminal, however, by itself would not attract the provisions of s.41 of the Evidence Act. A judgment has to be pronounced. The genuineness of the Will must be gone into. Law envisages not only genuineness of the Will but also explanation to all the suspicious circumstances surrounding thereto besides proof thereof in terms of s.63(c) of the Indian Succession Act, and s.68 of the Evidence Act. [Para 13] [1038-C-D] Lalitaben Jayantilal Popat vs. Pragnaben Jamnadas Kataria & ors. 2009 (1) SCALE 328, relied on. 1.3. As noticed in several decisions of this Court, including two Constitution Bench decisions*, primacy has to be given to a criminal case over a civil case. If primacy is to be given to a criminal proceeding, indisputably, the civil suit must be determined on its own merit, keeping in view the evidences brought in it and not in terms of the evidence brought in the criminal proceedings. In the instant case, the FIR was lodged not only in regard to forgery by the Will but also on the cause of action of a trespass. Not only another civil suit is pending, but a lis in relation to mutation is also pending. [Para 10, 14 and 15] [1029-G; 1038-E; 1039-A] *M.S. Sheriff & anr. vs. State of Madras & Ors. AIR 1954 SC 397 and Iqbal Singh Marwah & Anr. vs. Meenakshi Marwah & Anr. (2005) 4 SCC 370, relied on. K.G. Premshanker vs. Inspector of Police and Anr. (2002) 8 SCC 87 M/s Karam Chand Ganga Prasad & anr. etc. vs. Union of India & Ors. (1970) 3 SCC 694 and P. Swaroopa Rani vs. M. Hari Narayana @ Hari Babu AIR 2008 SC 1884, referred to. 1.4. Whereas the criminal case is pending before the Delhi court, the testamentary suit has been filed before the Jharkhand High Court. Since 2003 not much progress has been made therein. The Will has not been sent to the handwriting expert for his opinion, which is essential for determination of the question in regard to its genuineness. It is alleged that the Will was registered at Hazaribagh after the death of the testatrix. For the last seven years in view of the pendency of the matters before the High Courts in different proceedings initiated by the appellant, the criminal case has not proceeded, although charge-sheet has been filed and cognizance of the offence has been taken. Exercise of such a jurisdiction furthermore is discretionary. [Para 15] [1039-A-C] 1.5. In the facts and circumstance of the case, orders of the Metropolitan Magistrate and the High Court need not be interfered with. Firstly, because the criminal case was instituted much prior to the initiation of the probate proceeding and, secondly, because of the conduct of the appellant and the stage in which the probate proceedings are pending. Therefore, it is not a fit case where the Court should exercise discretionary jurisdiction under Article 136 of the Constitution of India. [Para 15] [1039-D] Case Law Reference: AIR 1954 SC 397 relied on para 10 (2002) 8 SCC 87 referred to para 10 (1970) 3 SCC 694 referred to para 10 (2005) 4 SCC 370 relied on para 11 AIR 2008 SC 1884 referred to para 11 1987 (Supp.) SCC 146 referred to para 12 (2001) 3 SCC 459 cited para 12 AIR 1957 SC 875 referred to para 12 1929 Lahore 483 referred to para 13 AIR 1979 Punjab & Haryana 215 referred to para 13 2009 (1) SCALE 328 relied on para 13 CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 416 of 2009. From the Judgment and Order dated 23.07.2008 of the High Court of Delhi in Criminal Revision No. 184 of 2005. Dinesh Dwivedi, S.K. Sinha, Manish Shanker and Prateek Dwivedi for the Appellant. A. Sharan, ASG, A.M. Singhvi, S.C. Maheshwari, Neera Gupta, Sadhna Sandhu, Anil Katiyar, Sandhya Goswami, H.C. Kharbanda and M.P.S. Tomar for the Respondent.
REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 416 OF 2009 [Arising out of Special Leave Petition (Criminal) No. 5791 of 2005] SYED ASKARI HADI ALI AUGUSTINE IMAM & ANR. … APPELLANTS VERSUS STATE (DELHI ADMN.) & ANR. … RESPONDENTS JUDGMENT S.B. Sinha, J. 1. Leave granted. 2. Effect of … Continue reading
Penal Code, 1860: ss. 409, 420, 467, 477-A r/w 120-B-Forgery and misappropriation of bank loans-Bank Manager and Field Officer in conspiracy with each other sanctioned and disbursed loans in names of fictitious persons-Trial Court holding both guilty and sentencing them-Acquittal by High Court-HELD: Prosecution has brought ample material on record which led to only one conclusion that accused committed the offences-Exoneration of one of the accused in departmental inquiry initiated only against him having concluded before police investigation stated in the case, would be of no avail as Inquiry Officer did not have benefit of the evidence that was made available in the criminal proceedings-Besides, the inquiry report was not brought on record and factum of exoneration in departmental proceedings was taken as a defence, it was for the accused to bring on record the relevant material, which was not done-High Court also erred in purporting to hold that specimen finger print and handwritings could not have been taken from accused-ss. 5 and 6 of Identification of Prisoners Act, clearly provides for such a contingency-High Court completely misdirected itself in passing a judgment of acquittal-Judgment of High Court set aside-Prevention of Corruption Act, 1944-ss. 5(1) and 5(2)-Code of Criminal Procedure, 1973-Appeal against acquittal-Identification of Prisoners Act, 1920-ss. 5 and 6. Prevention of Corruption Act, 1947: s. 5(1) r/w s.5(2), proviso-Bank Manager and Field Officer forging loans in names of fictitious persons-Both held guilty by trial court-Acquittal by High Court-HELD: Bank Manager completing all formalities required to be complied with for grant of loan including obtaining appraisal report from Field Officer, sanction and disbursement of loan on date of filing of loan application itself-Entire prosecution relating to forgery and misappropriation having been attributed to the Manager, and he having used the appraisal reports prepared by Field Officer, a case is made out to invoke the proviso appended to sub-s.(2) of s.5 in the case of Field Officer-Therefore, while upholding conviction and sentence awarded by trial court as against the Manager, sentence of rigorous imprisonment of three months is imposed on Field Officer-Penal Code, 1860-ss. 409, 420, 467 and 477-A r/w 120-B IPC. Code of Criminal Procedure, 1973: Appeal against acquittal-Jurisdiction of appellate Court-HELD: an appellate court, while entertaining an appeal against acquittal, would be entitled to consider the evidence brought on record and arrive at its own conclusion-Interference with a judgment of acquittal may not be made when two views are possible to be taken but when only one view is possible to be taken, appellate court would not hesitate to interfere with judgment of acquittal-In the instant case no two views are possible to be taken-Accused were rightly held guilty of the offences charged-High Court misdirected itself in passing judgment of acquittal-Judgment of High Court set aside-Penal Code, 1860-ss. 409, 420, 467, 477-A r/w s.120-B-Prevention of Corruption Act, 1947-ss. 5(1), (2). Respondent A-1 and respondent A-2, who were Manager and Field Officer respectively of the appellant Bank, were prosecuted under ss. 409, 420, 467 and 477-A read with s.120-B IPC and s.5 read with s.5(2) of the Prevention of Corruption Act, 1947. The allegations against them were that during the period 7.12.1984 to 14.8.1986, they conspired with each other in matter of sanctioning and disbursing 6 Crop Loans of Rs.5000/- each in the names of fictitious persons by forging signatures and thumb impressions of proposed borrowers in documents resulting in misappropriation of the proceeds of Rs.30,000/-. The trial court held both the accused guilty of the offences charged and sentenced both of them to rigorous imprisonment for six moths. It rejected the plea of respondent A-2 that in view of the departmental proceedings against him resulting in his exoneration he was entitled to be acquitted. On appeal, the High Court acquitted the accused observing, inter alia, that the procedure adopted for obtaining finger prints being contrary to fundamental rights of the accused, the same was not admissible in evidence; that neither the Bank received any complaint from loanees nor did the prosecution bring any corroborative material on record. In the instant appeals filed by the Bank, it was contended for respondent A-2 that he merely prepared the appraisal report and he was not involved in any forgery; that he joined the service only in 1984 and was transferred on or about 14.8.1986, and subsequent renewals of loans having been prepared in 1987, he was entitled to acquittal. =Allowing the appeals, the Court HELD: 1.1. In the instant case, evidently, the formalities required to be complied with for grant of loan, appraisal report recommendation prepared by respondent A-2 and sanction and disbursement of loan by respondent A-1 were completed on the very same day on which application for grant of loan was filed. It has furthermore been brought on record that PW-21 and PW-22 on whose behalf loan was applied, were known to respondent A-1. They stated that they were residents of a district different than that shown in their applications. This clearly establishes that the transactions were manipulated by respondent A-1. PW-3, in her deposition, in no uncertain line, stated that all transactions right from application to disposal took place in the afternoon of a day and all the documents used to be processed during the lunch hour, whereas as per to the procedure, the disbursement of loan could take place only upon proper verification thereof. The modus operandi of respondent A-1 appeared to be that he had affixed his own thumb impression instead of those of the loanees. Upon sanction of the said loan, the accountant concerned paid the amount of loan to accused A-1. The said loans were also renewed for the years 1986 and 1987. [Para s 12, 14, 24 and 25] [581-C; 582-B-C-D; 584-B-C] 1.2. The finger print expert (PW-17), in his evidence, proved that specimen fingerprints tallied with the disputed fingerprints. PW-17 is a qualified and experienced fingerprint expert. There is no reason to discredit his testimony. Apart from the fingerprints, the prosecution also obtained the specimen handwritings of respondent A-1. Handwritings on the said loan documents/applications for grant of loan was found to be that of accused No.1. The High Court also committed a manifest error in purporting to hold that the specimen fingerprints and handwritings could not have been taken from respondent A-1. Sections 5 and 6 of the Identification of Prisoners Act, 1920 clearly provides for such a contingency. [Paras 15, 17, 18, 34 and 35] [582-E, G; 583-A-B; 586-F-G] State of Bombay v. Kathi Kalu Oghad, AIR (1961) SC 1808, relied on. 1.3. It may be true that there was no documentary evidence to show that the amount had actually been paid in cash to the respondent A-1. But then no documentary evidence would be available as it was for the respondent A-1, as Manager of the Bank, to hand over the amount in cash to the loanees upon receiving the same from PW-3. Besides, PW-5 also stated that debit vouchers (Ext. P-6) contained only one stamp showing as cash paid but it did not contain his signature, although it purported to have been shown to be his. Ext. P-6 was, therefore, a forged document. [Paras 20 and 21] [583-E-F, D] 1.4. PWs 3 and 5 who had been working in the same branch of the bank with the respondents have proved the procedure adopted in the matter of grant of loan. There cannot, therefore, be any doubt whatsoever that ample materials have been brought on record by the prosecution which led to only one conclusion that the accused were responsible therefor. [Para 22] [583-G] 1.5. It may be that no act of forgery and misappropriation has been attributed to respondent A-2, but he was the one who had prepared the appraisal report. After preparation of such appraisal report, the loan amounts were sanctioned and the amount of loan purported to have been paid to the loanees and, therefore, he was also guilty of commission of the said offences. [Para 23] [583-H; 584-A] 2. The High Court purported to have laid emphasis on exoneration of respondent A-2 in departmental enquiry. The departmental enquiry was initiated only against respondent A-2 and was completed even before the police investigation in the case started. The enquiry officer did not have the occasion to consider all the materials brought on record by the prosecution which clearly established the involvement of the respondents. Exoneration of respondent A-2 in the departmental proceedings cannot, therefore, lead to the conclusion that he was not guilty of commission of the offences wherefor he was charged. Furthermore, the enquiry report has not been brought on record. Besides, the factum of exoneration of respondent A-2 in the departmental proceedings was raised by way of defence. It was, therefore, obligatory on his part to bring on record all the relevant documents, including the findings of the Enquiry Officer. [Paras 27, 28, 29 and 33] [574-E-F; 584-G-H; 585-A; 586-D-E] P.S. Rajya v. State of Bihar, [1996] 9 SCC 1, distinguished. State of Haryana v. Bhajan Lal, [1990] 3 SCR 259=[1992] Supp. 1 SCC 335 and Superintendent of Police (CBI) v. Deepak Chowdhary & Ors., [1995] 6 SCC 225, referred to. 3. The High Court, therefore, completely misdirected itself in passing a judgment of acquittal in favour of the respondents. The trial judge had assigned cogent reasons in support of its findings. The High Court did not meet the said reasoning. The impugned judgment of the High Court cannot be sustained. [Paras 26 and 37] [584-D; 859-B] 4. The Court is not oblivious of the fact that presumption of innocence is a human right and when an accused is acquitted by a court, such presumption becomes stronger. It is, however, a trite law that an appellate court, while entertaining an appeal from a judgment of acquittal, would also be entitled to consider the evidences brought on record by both the prosecution and the defence and arrive at its own decision. Interference with a judgment of acquittal may not be made when two views are possible to be taken, but when on appraisal thereof, only one view is possible, the appellate court would not hesitate to interfere with the judgment of acquittal. In this case, the Court is firmly of the view that no two views are possible to be taken. [Paras 37 and 38] [589-B, D, E] State of Haryana v. Sher Singh & Ors., [2002] 9 SCC 356; Narender Singh & Anr. v. State of M.P., [2004] 10 SCC 699 and Budh Singh & Ors. v. State of U.P., [2006] 9 SCC 731, referred to. 5. The entire prosecution case relating to charges of forgery and misappropriation has been attributed to respondent A-1 alone. Thus, a case has been made out to invoke the proviso appended to sub-section (2) of Section 5 of the Prevention of Corruption Act, 1947 in the case of respondent A-2. Furthermore, he worked in the bank for a short period and was still undergoing probation. Forgery and misappropriation was committed by respondent A-1 even thereafter. The appraisal reports prepared by respondent A-2 were used by respondent A-1 also for the subsequent period, namely, 1987 when respondent A-2 was no longer working in the said branch. Therefore, while upholding the conviction and sentence awarded by the trial judge as against respondent A-1, in view of the special reasons recorded in the judgment, a sentence of rigorous imprisonment of three months is imposed on respondent A-2. He shall, however, be liable to pay a fine of Rs.20,000/- (Rupees twenty thousand only) and in default shall undergo a sentence of three months. [Paras 40, 41 and 42] [589-G; 590-A-C] A. Sharan , ASG., Amit Anand Tiwari and P. Parmeswaran for the Appellants. L.N. Rao, R. Santhan Krishnan, K. Radha Rani, P. Vijaya Kumar and D. Mahesh Babu for the Respondents. =Allowing the appeals, the Court HELD: 1.1. In the instant case, evidently, the formalities required to be complied with for grant of loan, appraisal report recommendation prepared by respondent A-2 and sanction and disbursement of loan by respondent A-1 were completed on the very same day on which application for grant of loan was filed. It has furthermore been brought on record that PW-21 and PW-22 on whose behalf loan was applied, were known to respondent A-1. They stated that they were residents of a district different than that shown in their applications. This clearly establishes that the transactions were manipulated by respondent A-1. PW-3, in her deposition, in no uncertain line, stated that all transactions right from application to disposal took place in the afternoon of a day and all the documents used to be processed during the lunch hour, whereas as per to the procedure, the disbursement of loan could take place only upon proper verification thereof. The modus operandi of respondent A-1 appeared to be that he had affixed his own thumb impression instead of those of the loanees. Upon sanction of the said loan, the accountant concerned paid the amount of loan to accused A-1. The said loans were also renewed for the years 1986 and 1987. [Para s 12, 14, 24 and 25] [581-C; 582-B-C-D; 584-B-C] 1.2. The finger print expert (PW-17), in his evidence, proved that specimen fingerprints tallied with the disputed fingerprints. PW-17 is a qualified and experienced fingerprint expert. There is no reason to discredit his testimony. Apart from the fingerprints, the prosecution also obtained the specimen handwritings of respondent A-1. Handwritings on the said loan documents/applications for grant of loan was found to be that of accused No.1. The High Court also committed a manifest error in purporting to hold that the specimen fingerprints and handwritings could not have been taken from respondent A-1. Sections 5 and 6 of the Identification of Prisoners Act, 1920 clearly provides for such a contingency. [Paras 15, 17, 18, 34 and 35] [582-E, G; 583-A-B; 586-F-G] State of Bombay v. Kathi Kalu Oghad, AIR (1961) SC 1808, relied on. 1.3. It may be true that there was no documentary evidence to show that the amount had actually been paid in cash to the respondent A-1. But then no documentary evidence would be available as it was for the respondent A-1, as Manager of the Bank, to hand over the amount in cash to the loanees upon receiving the same from PW-3. Besides, PW-5 also stated that debit vouchers (Ext. P-6) contained only one stamp showing as cash paid but it did not contain his signature, although it purported to have been shown to be his. Ext. P-6 was, therefore, a forged document. [Paras 20 and 21] [583-E-F, D] 1.4. PWs 3 and 5 who had been working in the same branch of the bank with the respondents have proved the procedure adopted in the matter of grant of loan. There cannot, therefore, be any doubt whatsoever that ample materials have been brought on record by the prosecution which led to only one conclusion that the accused were responsible therefor. [Para 22] [583-G] 1.5. It may be that no act of forgery and misappropriation has been attributed to respondent A-2, but he was the one who had prepared the appraisal report. After preparation of such appraisal report, the loan amounts were sanctioned and the amount of loan purported to have been paid to the loanees and, therefore, he was also guilty of commission of the said offences. [Para 23] [583-H; 584-A] 2. The High Court purported to have laid emphasis on exoneration of respondent A-2 in departmental enquiry. The departmental enquiry was initiated only against respondent A-2 and was completed even before the police investigation in the case started. The enquiry officer did not have the occasion to consider all the materials brought on record by the prosecution which clearly established the involvement of the respondents. Exoneration of respondent A-2 in the departmental proceedings cannot, therefore, lead to the conclusion that he was not guilty of commission of the offences wherefor he was charged. Furthermore, the enquiry report has not been brought on record. Besides, the factum of exoneration of respondent A-2 in the departmental proceedings was raised by way of defence. It was, therefore, obligatory on his part to bring on record all the relevant documents, including the findings of the Enquiry Officer. [Paras 27, 28, 29 and 33] [574-E-F; 584-G-H; 585-A; 586-D-E] P.S. Rajya v. State of Bihar, [1996] 9 SCC 1, distinguished. State of Haryana v. Bhajan Lal, [1990] 3 SCR 259=[1992] Supp. 1 SCC 335 and Superintendent of Police (CBI) v. Deepak Chowdhary & Ors., [1995] 6 SCC 225, referred to. 3. The High Court, therefore, completely misdirected itself in passing a judgment of acquittal in favour of the respondents. The trial judge had assigned cogent reasons in support of its findings. The High Court did not meet the said reasoning. The impugned judgment of the High Court cannot be sustained. [Paras 26 and 37] [584-D; 859-B] 4. The Court is not oblivious of the fact that presumption of innocence is a human right and when an accused is acquitted by a court, such presumption becomes stronger. It is, however, a trite law that an appellate court, while entertaining an appeal from a judgment of acquittal, would also be entitled to consider the evidences brought on record by both the prosecution and the defence and arrive at its own decision. Interference with a judgment of acquittal may not be made when two views are possible to be taken, but when on appraisal thereof, only one view is possible, the appellate court would not hesitate to interfere with the judgment of acquittal. In this case, the Court is firmly of the view that no two views are possible to be taken. [Paras 37 and 38] [589-B, D, E] State of Haryana v. Sher Singh & Ors., [2002] 9 SCC 356; Narender Singh & Anr. v. State of M.P., [2004] 10 SCC 699 and Budh Singh & Ors. v. State of U.P., [2006] 9 SCC 731, referred to. 5. The entire prosecution case relating to charges of forgery and misappropriation has been attributed to respondent A-1 alone. Thus, a case has been made out to invoke the proviso appended to sub-section (2) of Section 5 of the Prevention of Corruption Act, 1947 in the case of respondent A-2. Furthermore, he worked in the bank for a short period and was still undergoing probation. Forgery and misappropriation was committed by respondent A-1 even thereafter. The appraisal reports prepared by respondent A-2 were used by respondent A-1 also for the subsequent period, namely, 1987 when respondent A-2 was no longer working in the said branch. Therefore, while upholding the conviction and sentence awarded by the trial judge as against respondent A-1, in view of the special reasons recorded in the judgment, a sentence of rigorous imprisonment of three months is imposed on respondent A-2. He shall, however, be liable to pay a fine of Rs.20,000/- (Rupees twenty thousand only) and in default shall undergo a sentence of three months. [Paras 40, 41 and 42] [589-G; 590-A-C] A. Sharan , ASG., Amit Anand Tiwari and P. Parmeswaran for the Appellants. L.N. Rao, R. Santhan Krishnan, K. Radha Rani, P. Vijaya Kumar and D. Mahesh Babu for the Respondents. =2008 AIR 368 , 2007(11 )SCR570 , , 2007(12 )SCALE618 , 2007(12 )JT413
CASE NO.: Appeal (crl.) 1394-1395 of 2004 PETITIONER: State through SPE & CBI, AP RESPONDENT: M. Krishna Mohan & Anr DATE OF JUDGMENT: 12/10/2007 BENCH: S.B. Sinha & Harjit Singh Bedi JUDGMENT: J U D G M E N T S.B. Sinha, J. 1. Correctness of a judgment of acquittal passed by the High Court … Continue reading
Penal Code, 1860/Prevention of Corruption Act, 1988: Sections 409, 415, 420, 120-B/Section 13(2) r/w 13(1)(d) – Alleged cheating of Bank – All six accused found guilty for offences under Section 120-B, 420 IPC and three accused found guilty for offence under Section 13(2) r/w 13(1) of Prevention of Corruption Act – Convicted – High Court affirming the order, but acquitting one accused – On appeal, Held: Prosecution failed to prove conspiracy as also wrongful gains – Impugned judgment unsustainable and set aside – Negotiable Instruments Act, Section 138. Constitution of India, 1950: Article 136 – Special Leave jurisdiction – Ordinarily concurrent finding of fact not interfered with – However, the jurisdiction must be exercised whenever it is required to do so for securing the ends of justice and to avoid injustice. A charge sheet was filed under Sections 120-B, 420 IPC r/w Section 13(1)(d) of the Prevention of Corruption Act alleging inter alia that there was criminal conspiracy between the accused persons to cheat the State Bank of India. Special Judge for CBI cases found A-1 to A-6 guilty for the offence under Section 120-B and 420 IPC, A-4 to A-6 were found guilty for the offence under Section 13(2) r/w 13(1)(d) of the Prevention of Corruption Act, 1988. Accordingly, he convicted and sentenced the accused. High Court dismissed the appeals of the accused, but acquitted A-6. Hence the appeals. =Allowing the appeals, the Court HELD: 1.1 For the purpose of constituting an offence of cheating, the complainant is required to show that the accused had fraudulent or dishonest intention at the time of making promise or representation. Even in a case where allegations are made in regard to failure on the part of the accused to keep his promise, in absence of a culpable intention at the time of making initial promise being absent, no offence under Section 420 of the Indian Penal Code can be said to have been made out. [Para 21] [810- F-G] 1.2 It is reiterated that one of the ingredients of cheating as defined in Section 415 of the Indian Penal Code is existence of an intention of making initial promise or existence thereof from the very beginning of formation of contract. [Para 21] [810-H; 811-A] Hira Lal Hari Lal Bhagwati v. CBI (2003) 5 SCC 257; Indian Oil Corporation v. NEPC India Ltd. & Ors. (2006) 6 SCC 736; Vir Prakash Sharma v. Anil Kumar Agarwal (2007) 7 SCC 373; All Carogo Movers (I) Pvt. Ltd. v. Dhanesh Badarmal Jain & Anr. 2007 (12) SCALE 391; R. Kalyani v. Janak C. Mehta & Ors. 2008 (14) SCALE 85 and Sharon Michael & ors. vs. State of Tamil Nadu & Anr. 2009 (1) SCALE 627 – relied on. 2. It may be that there had been certain procedural irregularities in the transaction. However, sufficient evidence is available on record to show that the Officers had done so for the purpose of promoting the business of the Bank. In relation whereto or in respect whereof, initiatives had been taken by P.Ws. 19 and 20. It is furthermore not denied or disputed that after the cheque discounting facility was stopped in April, 1989 by Accused No.4, there has been a meeting at the residence of P.W. 20. In his deposition, the said witness categorically admitted that the said meeting was arranged at the instance of Accsued No.1. It is incomprehensible that a meeting has been arranged at his residence on the day he was on leave at the instance of Accused No.1. He must have developed grievance against the Accused No.4 as regards the stoppage of the said facility. If immediately thereafter the said facility had been restored by the Accused No.4, a stand taken by him that it was done under the oral instructions of the higher authorities appears to be plausible. [Para 22] [813-E-H; 814-A] 3. The prosecution apart from the fact that it had utterly failed to bring on record any evidence of conspiracy must also be held to have failed to bring on record any evidence of wrongful gain so as to attract the provisions of the Prevention of Corruption Act, 1988 or otherwise. [Para 23] [814-A-B] 4. The findings arrived at by the Special Judge as also the High Court proved the ingredients of offence under Section 409 of the IPC. The accused persons, however, have not been charged for commission of the said offence. Conspiracy by and between the Bank officials and the Accused Nos. 1 to 3 has been stated to be for commission of the offence of cheating for the purpose of arriving at a finding that there has been a conspiracy so as to cheat the Bank. It was necessary for the prosecution to establish that there had been a meeting of mind at the time when the facility had been granted. Such meeting of mind on the part of the accused persons has not been proved. Furthermore, the prosecution case even if given face value and taken to be correct in its entirety does not lead to a finding that even Accused Nos. 1 to 3 had any wrongful intention at the time when the contract was initiated. [Para 24] [814-C-F] 5. It is one thing to say that there has been an abuse of a prevalent banking practice for the purpose of causing wrongful loss to the Bank and causing wrongful gain to others but it is another thing to say that by reason thereof, the ingredients of cheating are attracted.[Para 27] [814-H; 815-A] 6. It would bear repetition to state that accused persons have not been charged under Section 409 of the IPC; even the Accused Nos. 1 to 3 have not been charged for entering into a conspiracy with Accused Nos. 4, 5 and 6 in respect of commission of offences under the Prevention of Corruption Act. It is in the aforementioned situation, this Court is of the opinion that the judgment of conviction and sentence cannot be upheld. [Paras 28, 29] [815-B-D] Lala Ram & Ors. vs. State of U.P. (1990) 2 SCC 113 – relied on. 7. It is one thing to say that ordinarily a concurrent finding of fact shall not be interfered with by this Court in exercise of its jurisdiction under Article 136 of the Consti-tution of India but it is another thing to say that despite opining that accused are entitled to acquittal, a judgment of conviction passed against them should be upheld. In fact, the jurisdiction of this Court must be exercised wherever it is required to do so for securing the ends of justice and to avoid injustice.[Para 30] [815- H; 816-A-B] Case Law Reference (2003) 5 SCC 257 relied on Para 21 (2006) 6 SCC 736 relied on Para 21 (2007) 7 SCC 373 relied on Para 21 2007 (12) SCALE 391 relied on Para 21 2008 (14) SCALE 85 relied on Para 21 2009 (1) SCALE 627 relied on Para 21 (1990) 2 SCC 113 relied on Para 30 CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 942 of 2009 From the Judgement and Order dated 17.07.2007 of the Hon’ble High Court of Judicature, Andhra Pradesh at Hyderabad in Criminal Appeal No. 125 of 1998. With Criminal Appeal No. 945 of 2009 Criminal Appeal Nos. 943-944 of 2009 K.T.S. Tulsi, M. N. Krishnamani, Ravindra Shrivastava, Radha Rani, Hari Kumar, Kunal Verma, Krishna Kumar, Supriya Jain, Anup Jain, C. Batra, D. Mahesh Babu, Gaurava Bhagava, Raj Kamal, Rishi Malhotra, K.V. Mohan, with them for the Appellant. R. Datta, ASG, Rajni, P. Narasimha, B. Krishna Prasad, with them for the Respondent.
REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 942 OF 2009 [Arising out of SLP (Criminal) No. 7125 of 2007 S.V.L. MURTHY … APPELLANT Versus STATE REP. BY CBI, HYDERABAD … RESPONDENT WITH CRIMINAL APPEAL NO. 945 OF 2009 [Arising out of SLP (Criminal) No. 7145 of 2007 P. JAYAKUMAR … Continue reading
Code of Criminal Procedure, 1973 – s. 482 – FIR – Quashing of – FIR against husband and his parents u/s.406/420 IPC alleging dowry demand and misappropriation of dowry articles – Application u/s 482 Cr.P.C. – Dismissal of, by High Court – Held: Not correct – Parties were living in Canada – FIR was lodged in Jalandhar and offence, if any, was committed in Canada – Alleged demand was made after period of five years from marriage – Offence for criminal breach of trust and/or cheating not made out – Allegation in FIR have been made with an ulterior motive to harass the applicants – Continuance of criminal proceedings would amount to abuse of process of Court – Thus, order of High Court set aside – Penal Code, 1860 – s. 406/420. The question which arose or consideration was whether High Court was justified in dismissing an application praying for quashing FIR u/s. 406/420 IPC in exercise of its jurisdiction u/s. 482 Cr.P.C. =Allowing the appeal, the Court HELD: 1.1 Parties were married in May 2000. Parties admittedly live at Ontario in Canada. Disputes between the parties arose for the first time in the year 2003. Respondent no.3-wife, however, on an application filed by appellant no.1-husband apprehending danger to his life, categorically admitted her fault and guilt. Even at that point of time no allegations of cheating and/or non-return of the Stridhan were made. It is only after a period of three years when the disputes and differences between the parties wrecked up once again and on filing of an application for divorce, the father of the respondent No.3 came from Canada to Jalandhar to lodge FIR. Offence, if any, had been committed in Canada. FIR, however, has been lodged at Jalandhar only after the divorce application was filed. No allegation has been made in the FIR that appellants at the time of marriage or thereafter demanded any dowry. The demand of a sum of Rs.5 lakhs allegedly was made only in Canada and that too after the appellant nos. 2 and 3 arrived in Canada in March 2006, i.e., almost after a period of five years from the date of marriage. The Superintendent of Police recommended `cancellation’ of the FIR for one reason or the other. However, the said recommendation had not been accepted. A charge-sheet has been filed. [Paras 8 and 10] [573-B-D; 577-A-C] 1.2 The facts pleaded in the application for quashing of FIR before the High Court are not denied or disputed. In fact, most of the documents relied on by the appellant are annexed to the counter affidavit filed on behalf of the respondent No.3 herself. Therefore, any document which the appellant intends to place by way of defence is not to be considered. It is also not a case where this court has to undertake a difficult task of appreciating the evidence brought on record by the parties. [Para 10] [577- C-D] 1.3 The Submission that the marriage between the appellant no.1 and respondent No.3 was solemnized only for the purpose of getting the family settled at Canada is far fetched. For the purpose of constituting an offence for criminal breach of trust and/or cheating, the ingredients thereof as contained in ss. 405 and 415 respectively must be borne out from the records. [Para 10] [577-E-F] 1.4 For the purpose of constituting an offence of cheating, the complainant is required to show that the accused had fraudulent or dishonest intention at the time of making promise or representation. Even in a case where allegations are made in regard to failure on the part of the accused to keep his promise, in absence of a culpable intention at the time of making initial promise being absent, no offence under section 420 IPC can be said to have been made out. One of the ingredients of cheating as defined in section 415 IPC is existence of an intention of making initial promise or existence thereof from the very beginning of formation of contract.[Paras 12 and 13] [578-G-H; 579-A-B] Ajay Mitra v. State of M.P. 2003 (3) SCC 11; Hira Lal Hari Lal Bhagwati v. CBI 2003 (5) SCC 257; Indian Oil Corporation v. NEPC India Ltd. & Ors. 2006 (6) SCC 736; Vir Prakash Sharma v. Anil Kumar Agarwal 2007 (7) SCC 373; All Cargo Movers (I) Pvt. Ltd. v. Dhanesh Bardarmal Jain & Anr. 2007 (12) SCALE 391; Sharon Michael & Ors. vs. State of Tamil Nadu & Anr. 2009 (1) SCALE 627 – referred to 1.5 The element of wrongful intention should ordinarily exist from the inception of the contract. FIR does not satisfy the aforementioned test. So far as the allegation in regard to criminal breach of trust is concerned, it related to the dowry articles. No allegation has been made that the appellants are guilty of commission of offence punishable under Section 3 and/or 4 of the Dowry Prohibition Act. If any dowry has been given, the same would attract the provisions of the special act in preference to the general statute. Furthermore, if any article is given by way of dowry, the question of entrustment thereof for or on behalf of the bride would not arise. [Para 14] [582-H; 583-A-B] 1.6 Allegations made in the FIR merely disclose that at the time of leaving the house, appellants had taken with them certain articles. The said articles ought to be in lawful possession of the respondent No.3. The offence of theft might have been committed. But when they are in joint possession, even no offence of theft would also be made out. Furthermore, the larger part of offence, if any, has been committed only in Canada. Why the father of respondent No. 3 had to come from Canada to Jalandhar to lodge an FIR is difficult to comprehend. Respondent no.3 and the first informant do not say that the inquiry report submitted by the Superintendent of Police on the representation made by the appellant No.2 was incorrect. It has also not been stated that as to on what material, the charge-sheet had been submitted. In the peculiar facts and circumstances of this case, there is absolutely no doubt that the allegations contained in the FIR had been made with an ulterior motive to harass the appellants. Continuance of the criminal proceeding against them would, therefore, amount to abuse of process of the court.[Para 14] [583-C-F] 1.7 Upon taking a holistic view of the matter vis-a-vis the statutory provisions, the appellants had made out an exceptional case to invoke the inherent jurisdiction of the High Court under section 482 of the Code. It was obligatory on the part of the High Court to exercise its discretionary jurisdiction to prevent the abuse of process of the court. Thus, the judgment and order of High Court is set aside. [Paras 15 and 16] [584-F-G] All Cargo Movers (I) Pvt. Ltd. v. Dhanesh Badarmal Jain & Anr.2007 (12) SCALE 391; V.Y. Jose & Anr. vs. State of Gujarat & Anr. 2008 (16) SCALE 167; Hira Lal & Ors. vs. State of U.P. & Ors. 2009 (5) SCALE 418; State of Karnataka v. M. Devendrappa 2002 (3) SCC 89; R Kalyani vs. Janak C. Mehta & Ors. 2009 (1) SCC 516; State of Haryana & Ors. vs. Bhajan Lal 1992 Supp (1) SCC 335 – referred to Case Law Reference 2002 (3) SCC 89 Referred to Para 9 2009 (1) SCC 516 Referred to Para 9 1992 Supp (1) SCC 335 Referred to Para 9 2003 (3) SCC 11 Referred to Para 13 2003 (5) SCC 257 Referred to Para 13 2006 (6) SCC 736 Referred to Para 13 2007 (7) SCC 373 Referred to Para 13 2007 (12) SCALE 391 Referred to Para 13 2009 (1) SCALE 627 Referred to Para 13 2007 (12) SCALE 391 Referred to Para 14 2008 (16) SCALE 167 Referred to Para 14 2009 (5) SCALE 418 Referred to Para 14 CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 908 of 2009 From the Judgement and Order dated 13.12.2007 of the Hon’ble High Court of Punjab & Haryana at Chandigarh in Crl. Misc. No. M-40020 of 2007. Rajiv K. Gupta (For Annam D.N. Rao), for the Appellant. Vineet Dhandra, J.P. Dhanda, Gagan Deep Sharma (for Ajay Pal Kuldip Singh), for the Respondent.
REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 908 OF 2009 [Arising out of SLP (Criminal) No. 1793 of 2008] HARMANPREET SINGH AHLUWALIA & ORS. … APPELLANTS Versus STATE OF PUNJAB & ORS. … RESPONDENTS JUDGMENT S.B. SINHA, J. 1. Leave granted. 2. Appellants are before us aggrieved by and … Continue reading
Code of Criminal Procedure, 1973: S.482 – Quashing of criminal proceedings – Power of High Court – Discussed – The question involved in the present case is essentially a civil dispute – Case for imposing criminal liability not made out – In view of the peculiar facts and circumstances of the case and in order to do complete justice, certain directions issued – Constitution of India, Article 142. The firm in which the appellant was a partner, entered into an agreement with another firm whereby the latter firm was to receive 10% commission on the invoice value of each and every invoice and total sales made directly or indirectly by the firm. Alleging that the appellant has committed the offences of criminal breach of trust and/or of cheating and forgery by not paying commission to the firm on the sale of about Rs.9 crores through a sister concern, a Complaint Petition was filed. The Magistrate directed the Police to lodge FIR, and it was lodged. The Magistrate took cognizance of the offences against the appellant. Thereafter the appellant filed an application before the High Court for quashing of the order passed by the Magistrate. It was dismissed. Hence the appeal. =Dismissing the appeal, the Court HELD:1. Indisputably, the question as to whether the complainant was entitled to a higher amount of commission in terms of the agreement dated 21.2.1973 is essentially a civil dispute. The complainant in terms of the said agreement was not only entitled to inspect the documents maintained by the accused but also to get the same audited. It is, therefore, difficult to hold as has rightly been opined by the Investigating Officer that a case for imposing a criminal liability on the accused on that score has been made out. While saying so, this Court is not unmindful of the limitations of the court’s power under Section 482 of the Code of Criminal Procedure which is primarily for one either to prevent abuse of the process of any Court or otherwise to secure the ends of justice. The court at that stage would not embark upon appreciation of evidence. The Court shall moreover consider the materials on record as a whole. [Para 15] [1012-H; 1013-A-C] Kamaladevi Agarwal vs. State of W.B. & Ors. (2002) 1 SCC 555; B.Suresh Yadav vs. Sharifa Bee & anr. (2007) 13 SCC 107 and R. Kalyani vs. Janak C. Mehta & ors. 2008 (14) SCALE 85, referred to. 2. The charge-sheet, prima facie discloses commission of offences. A fair investigation was carried out by the Investigating Officer. The charge- sheet is a detailed one. If an order of cognizance has been passed relying on or on the basis thereof by the Magistrate, no exception thereto can be taken. This Court does not find any legal infirmity in the impugned orders. [Para 16] [1015-E-F] 3. Before this Court, it was stated that the appellant is ready and willing to get the disputes and differences between the parties settled. In that view of the matter and keeping in view the peculiar facts and circumstances of this case and with a view to do complete justice to the parties, in exercise of jurisdiction under Article 142 of the Constitution of India, it is directed that in the event the appellant appears before the Magistrate within a period of four weeks and files an application for grant of bail, he shall be released on bail on such terms and conditions as the Magistrate may deem fit and proper. In the event, the appellant files an application for exemption from his personal appearance, the same may also be considered on its own merits. It would be open to the complainant to consider the offer of the appellant. [Para 17] [1015-G-H; 1016-A-B] Case Law Reference: (2002) 1 SCC 555 referred to Para 15 (2007) 13 SCC 107 referred to Para 15 2008 (14) SCALE 85 referred to Para 15 CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 417 of 2009. From the Judgment and Order dated 10.10.07 of the High Court of Judicature for Rajasthan at Jaipur Bench, Jaipur in S.B. Criminal Misc. Petition No. 178 of 2007. Jagdeep Dhankar, Sunil Kumar and Aneesh Mittal for the Appellants. L.N. Rao, Siddharth Luttra, Randhir Singh, Braj Kishore Mishra, Aparna Jha and Vikram for the Respondent.
REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 417 OF 2009 [Arising out of Special Leave Petition (Criminal) No. 6769 of 2007] MAHESH CHOUDHARY … APPELLANT VERSUS STATE OF RAJASTHAN & ANR. … RESPONDENTS JUDGMENT S.B. Sinha, J. 1. Leave granted. 2. Appellant was a partner of a firm known … Continue reading
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