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28Jun, 2023

SARFAESI ACT Section 17 Tender for auction of two properties Undisclosed court orders and encumbrances related to properties

JOGINDER vs PUNJAB NATIONAL BANK CWP 22743/19 19/07/22 [RAMACHANDRA JJ ]

PUNJAB AND HARYANA HIGH COURT

• SARFAESI ACT Section 17 Tender for auction of two properties Undisclosed court orders and encumbrances related to properties after submitting bid Quashing of bank’s letter forfeiting their deposit, issuance of Sale confirmation letter No Objection Certificate for properties and clearance of entries in revenue records or refund of deposited amount Sought for Bank, as secured creditor, has duty to disclose all details regarding property including encumbrances, in auction notice Merely stating as is where is or as is what is does not absolve bank of its obligation to disclose encumbrances Transparency and free flow of information are essential in such transactions Further, bank cannot sell a property without informing bidders of any encumbrances attached to it Failure to disclose such information would invalidate sale Principle of caveat venditor (seller beware) applies and bank cannot take advantage of the as is where is clause to deny physical possession to the auction purchaser Moreover, bank’s cannot sell a property without informing bidders of any encumbrances attached to it Failure to disclose such information would invalidate sale Principle of caveat venditor (seller beware) applies, and bank cannot take advantage of the as is where is clause to deny physical possession to the auction purchaser – Moreover, bank’s responsibility extends to verifying encumbrances before putting property up for sale – Ignorance of encumbrances is not acceptable argument, and bank cannot hide behind the “as is where is” conditions – Bank must fulfill its duty to protect interests of both borrower and auction purchaser – Thus, bank failed to disclose existence of civil court decrees related to property, which would have influenced petitioner’s decision to participate in auction – Bank’s actions were deemed arbitrary and contrary to provisions of the law – Therefore, bank to refund deposited amount of Rs. 1.80 Crores to petitioner with 7% interest per annum from the respective dates of deposit and to pay costs of Rs. 25,000/to petitioner [Paras 31 to 53]

Relevant portion :

court observe that-

a) Whether the Writ Petition is maintainable and the petitioner should be asked to avail alternative remedy under Section 17 of the SARFAESI Act, 2002 and the Writ Petition should be rejected on the ground of non-availment of the alternative remedy by the petitioner?
b) If not, whether the petitioner is entitled to any relief?
Question (a):
We shall first consider the question i.e.,
“ a) Whether the Writ Petition is maintainable and the petitioner should be asked to avail alternative remedy under Section 17 of the SARFAESI Act, 2002 and the Writ Petition should be rejected on the ground of non- availment of the alternative remedy by the petitioner?”
We may point out that this Writ Petition had been filed on 29.07.2019, almost three years back, and this Court had entertained this Writ Petition by issuing notice of motion, and granted interim relief which is subsisting till date.
At this point of time, 3 years later, in our opinion, it would be a travesty of justice to dismiss the Writ Petition on the ground of non-availment of the alternative remedy by the petitioner.
Also, as we shall point out later in this judgment, if there is a violation of the provisions of the Act by the respondent-Bank, the Writ Petition can be entertained by this Court, and it is not necessary to relegate the parties to avail alternative remedy.

Though counsel for respondents have placed reliance on the decision of the Supreme Court in the case of Aggarwal Tracom Pvt.Ltd. vs. Punjab National Bank1 to contend that the Writ Petitions under Article 226 of the Constitution of India cannot be entertained when effective statutory remedy is available to the aggrieved person, in a later judgment rendered in the case of Authorized Officer, State Bank of Travancore and Another Vs. Mathew K.C2, the Supreme Court held that there are well defined exceptions to the rule of exhaustion of alternative remedy as laid down in decision of Commissioner of Income Tax and Others vs. Chhabil Dass Agarwal3 and one of such exceptions mentioned in Para 15 of the said judgment is “where the statutory authority has not acted in accordance with the provisions of the enactment in question.”
Similar view has been taken by this Court also in the case of M/s Skytone Electricals (India) Limited vs. Canara Bank and Others4.
Therefore we reject the plea of the respondent that the Writ Petition ought to be dismissed in view of existence of alternative remedy under Sec.17 of the Act. Point (a) is answered accordingly.
Question (b)
Now we shall consider question (b) i.e.,
“Whether the petitioner is entitled to any relief?”
Admittedly, under the provisions of the Act, the secured creditor is enabled, in the event of default in payment of the loan, to sell the secured asset under Section 13(4) of the Act read with Rules 8 and 9 of theSecurity Interest (Enforcement) Rules, 2002 (for short “the Rules”) after issuing notice under Sec.13(2) and taking symbolic possession by invoking Sec.13(4)/physical possession under Sec.14 of the Act .
We may also point out that under Rule 8(5) of the Rules, publication of the notice of sale is required to be made including mention therein about the details of encumbrances known to the secured creditor [Rule 8 (6) (a)], and any other thing which the Authorized Officer considers material for a purchaser to know in order to judge the nature and value of the property [Rule 8 (6) (f)]
Having regard to the above provisions contained in the Act, a duty is cast upon the Authorized Officer to publish all details with regard to the property including details of encumbrances, if any,such as (i) whether the property is a vacant property or is in the occupation of a tenant, (ii) whether there is any other charge on the said property, (iii) any other details which are material for a purchaser to know in order to judge the nature and value of the property etc.
Merely by inviting the tender notice on “as is where is basis”, “as it is where it is basis” and “whatever there is basis” the Bank is not absolved of it’s statutory obligation of disclosing the encumbrances attached to the property brought for sale by way of tender or e-auction or sale by public auction.
In the case of Rakesh Kumar Kaushal Vs. State of U.P. and Others5, a Division Bench of the High Court of Allahabad High Court (Lucknow Bench) held :-

Security Interest (Enforcement) Rules, 2002 (for short “the Rules”) after issuing notice under Sec.13(2) and taking symbolic possession by invoking Sec.13(4)/physical possession under Sec.14 of the Act .
We may also point out that under Rule 8(5) of the Rules, publication of the notice of sale is required to be made including mention therein about the details of encumbrances known to the secured creditor [Rule 8 (6) (a)], and any other thing which the Authorized Officer considers material for a purchaser to know in order to judge the nature and value of the property [Rule 8 (6) (f)]
Having regard to the above provisions contained in the Act, a duty is cast upon the Authorized Officer to publish all details with regard to the property including details of encumbrances, if any,such as (i) whether the property is a vacant property or is in the occupation of a tenant, (ii) whether there is any other charge on the said property, (iii) any other details which are material for a purchaser to know in order to judge the nature and value of the property etc.
Merely by inviting the tender notice on “as is where is basis”, “as it is where it is basis” and “whatever there is basis” the Bank is not absolved of it’s statutory obligation of disclosing the encumbrances attached to the property brought for sale by way of tender or e-auction or sale by public auction.
In the case of Rakesh Kumar Kaushal Vs. State of U.P. and Others5, a Division Bench of the High Court of Allahabad High Court (Lucknow Bench) held :-

and participative governance. The public demand for transparency is getting stronger in good governance. Transparency is built on the basis of free flow of information and the whole process of government, institutions and information needs to be accessible to the interested parties, as well as the information provided should be sufficient to be understood.
37. The undisputed fact in the case at hand is that when notice under section 13(4) of the SARFAESI Act was issued by the Bank, the physical possession of the mortgaged property was not taken. There is a duty cast upon the Bank under clause (9) of rule 9 of the Rules, 2002 to deliver the property to the purchaser free from encumbrances known to the secured creditor on deposit of money as specified in sub rule (7). In the writ petition it has rightly been asserted by the petitioner that he was shocked when he came to know that there were some defects in title of the aforesaid property and the same is defective, which was not disclosed by the Bank at any stage, rather it suppressed the material information.

As per Or.XXXVIII Rule 11 CPC, where property is under attachment by virtue of the provisions of the said Order XXXVIII CPC and a decree is subsequently passed in favor of the plaintiff, it shall not be necessary upon an application for execution of such decree to apply for re- attachment of the property. So the attachment before judgment granted shall be effective and operative even after passing of the decree and while executing the decree it is not necessary to re-attach the property.
So if the petitioner had to get clear title from the Bank pursuant to the tender /public notice dt.24.4.2019 (P4), he would have to satisfy the said decree in the above suit as well. Had the petitioner been aware of this, he might not have participated in the tender issued by the Bank at all.
No intending purchaser wants to buy fresh litigation or take on other unknown liabilities against third parties, and it was the statutory duty of the Bank to disclose them in the public notice/tender notice. So the action of the respondent Bank is arbitrary and contrary to the provisions of the Act.
It is strange that these documents are disclosed along with reply affidavit had not been taken into account for disclosing in the tender/public notice dt.24.4.2019 (P4) (under Rule 8(6) (f)) the existence of civil court

decree which undoubtedly would have a bearing on the willingness of the bidder to participate in a Public Auction/Tender notification and would also have impact on the price being offered.
For all these reasons, we are of the opinion that the Bank has failed to act in a transparent manner, and had acted inequitably and arbitrarily.
Accordingly, the Writ Petition is partly allowed and the respondent-Bank is directed to refund to the petitioner a sum of 1.80 Crores deposited by the petitioner with interest @ 7% per annum from the respective dates of deposit of such amount within 4 weeks from today. It shall also pay costs of 25,000/- to the petitioner.

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CWP_22743_2019_19_07_2022_FINAL_ORDER JOGINDER SINGH vs PUNJAB NATIONAL BANK AND ANOTHER

27Jun, 2023

Protection of Human Rights Act Section 12 (a) Conduct of ‘Virginity test’ Violation of fundamental right Examination of accused by medical practitioner Whether includes virginity test There cannot be two sets of views regarding virginity test being violative of fundamental right, for victim of sexual assault

SEPHY vs CBI WPCRL 1729/09 07/02/23 [ CORAM:
HON’BLE MS. JUSTICE SWARANA KANTA SHARMA]

[ DELHI HIGH COURT ]

• Protection of Human Rights Act Section 12 (a) Conduct of ‘Virginity test’ Violation of fundamental right Examination of accused by medical practitioner Whether includes virginity test There cannot be two sets of views regarding virginity test being violative of fundamental right, for victim of sexual assault on one hand and woman under investigation on other hand Conduct of virginity test on a woman who is victim of sexual assault or on a woman who may be an accused of an offence, cannot be on different footing No procedure, under any law for the time being, which provides for “virginity test” of a female accused Some fundamental rights cannot be suspended or infringed or abridged even when person is in custody Right of dignity in custody however does not include ordinary stresses and anxieties that a person may feel as a result of being in custody and under interrogation.

Relvant Paras

50. Learned counsel for National Human Rights Commission states that the Commission had considered the matter carefully, and the case of petitioner was closed with the following observations:
“…The Hon’ble Court had already seized the matter. Hence, the Commission is not inclined to proceed with the complaint in accordance with Regulation 9 of the NHRC (Procedure) Regulations, 1994 as amended. The complainant may, if so advise, bring the allegation of violation of human rights to the notice of the Court. The case is closed with these observations…”

55. The Supreme Court in Re: Assessment of The Criminal Justice System in Response To Sexual Offences (2020) 18 SCC 540 called for the status report from all states and union territories in the country on the question, among others, as under:
“17. Thus, we consider it appropriate to call for status report with regard to the following: –
…(5) whether the medical experts have done away with the Per-Vaginum examination commonly referred to as ‘Two- finger test’ and whether any directions have been issued by the states in this regard?…”

65. The Hon’ble Apex Court in Selvi & ors. v. State of Karnataka (2010) 7 SCC 263 while dealing with the constitutional validity of narco-analysis of an accused person sans consent, examined the scheme of Sections 53 and 54 Cr.P.C., the relevant observations of which have been reproduced as under:
“145. At this juncture, it should be noted that the Explanation to Sections 53, 53-A and 54 of the Code of Criminal Procedure, 1973 was amended in 2005 to clarify the scope of medical examination, especially with regard to the extraction of bodily substances……

66. A bare perusal of aforesaid provisions reveal that firstly, virginity test finds no mention in the ‘explanation’ to Section 53 as a technique to be used in the medical examination of an accused person to ascertain the facts which may afford evidence. Apart from techniques to be used in examination relating to sexual offences, certain methods and techniques such as examination of sputum and sweat, hair samples and finger nail clippings by the use of modern and scientific techniques including DNA profiling are mentioned. Secondly, the Indian Parliament, while introducing the ‘explanation’ to Section 53 Cr.P.C. by the Code of Criminal Procedure (Amendment) Act, 2005, and listing several forms of medical examination, left the scope for more techniques to be included within its ambit. However, as held by the Apex Court in Selvi & ors. v. State of Karnataka (supra), the said scope would be governed by the rule of ‘ejusdem generis’. As per the Apex Court in, the words “such other tests” should construe to mean and include those tests which are in the same genus as the other forms of medical examination that have been specified. Briefly stated, the ruleof ‘ejusdem generis’ commands that meaning of general words following the specific words in a provision of law should be construed in light of the meaning and intent of those specific words. A reading of ‘explanation’ to Section 53 shows that the same mandates medical examination of an accused person by “use of modern and scientific techniques”. It would not be out of context to state here, that, by no stretch of examination, ‘virginity test’ can presumably fall under the said provision. Virginity test is neither modern nor scientific, rather archaic and irrational. Modern science and medical law disapproves the conduct of such tests on women, as already discussed in the preceding paras.

85. The concept of custodial dignity i.e. ensuring dignity of an individual while in custody, whether police or judicial, has been discussed at length in the case of Sunil Batra (II) v. Delhi Administration (1980) 3 SCC 488, which dealt with the torture of persons while in judicial custody. The Hon’ble Apex Court has also held in several judgments regarding violence in police custody. The present case draws the attention of the Court to take note of the important issue of dignity of a female in police custody. This Court holds that the concept of custodial dignity of a female will include her right to live with dignity even while in police custody. Conducting a virginity test on the pretext of reaching truth regarding allegations against her will amount to infringement and violation of her right enshrined in Article 21 and explained in the judgment of D.K. Basu v. State of West Bengal (supra).
86. This Court is not impressed with the argument of the law enforcement agency that the virginity test was necessary to uphold the laws since this argument itself flouts basic principles that a person’s dignity even in custody has to be upheld. The conducting of virginity test not only amounts to interference of the investigating agency with the bodily integrity but also psychological integrity of a woman which will have serious and profound effects on the mental health of a woman.

87. Some fundamental rights cannot be suspended or infringed or abridged even when a person is in custody and right to dignity is one such fundamental right which falls within the ambit of Article 21.

Family Welfare and Secretary, Department of Health and Family Welfare, Govt. of NCT of Delhi.
(iii) The Delhi Judicial Academy is directed to include in its curriculum and in the workshops conducted for investigating officers, prosecutors and other stakeholders, the information regarding this issue.
(iv) Similarly, the Delhi Police Academy for Training shall also include the necessary information regarding this issue in its training curriculum.
(v) The Commissioner of Police, Delhi is also directed to ensure that the investigating officers are informed and sensitized in this regard.

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judgement Delhi High Court CBI & ORS. Versus SR.SEPHY (CRL) 1729:2009

27Jun, 2023

Section 482 CRPC NI ACT Sections 138 and 141 Summoning order Quashing of Dishonour of cheque Petitioner, Independent/Non-Executive Director in accused company at time of commission of offence Plea of Held/Apeal Allowed

Preeti vs State CRLMC 1219/20 02/11/22 [ KANTA JJ ] [ DELHI HIGH COURT ]

• Section 482 CRPC NI ACT Sections 138 and 141 Summoning order Quashing of Dishonour of cheque Petitioner, Independent/Non-Executive Director in accused company at time of commission of offence Plea of Held, director of company not in charge or responsible for conduct of business of company at relevant time, will not be liable On facts, perusal of Form No. DIR-12 shows that petitioner was independent director at time of commission of offence – Petitioner could held vicariously liable only if shown that she was in charge of and responsible for conduct of business of company at time of commission of offence Nothing can be inferred from complaint filed – Petition allowed

Relevant Paras

14. Recently, the Apex Court in Sunita Palita & ors. v. Panchami Stone Quarry 2022 SCC OnLine SC 945, in regard to fixation of vicarious liability on directors of a company under Section 141 of Negotiable Instruments Act, 1881, has held that:

“42. A Director of a company who was not in charge or responsible for the conduct of the business of the company at the relevant time, will not be liable under those provisions. As held by this Court in, inter alia, S.M.S. Pharmaceuticals Ltd. (supra), the liability under Section 138/141 of the NI Act arises from being in charge of and responsible for the conduct of the business of the company at the relevant time when the offence was committed, and not on the basis of merely holding a designation or office in a company. It would be a travesty of justice to drag Directors, who may not even be connected with the issuance of a cheque or dishonour thereof, such as Director (Personnel), Director (Human Resources Development) etc. into criminal proceedings under the NI Act, only because of their designation.
43. Liability depends on the role one plays in the affairs of a com- pany and not on designation or status alone as held by this Court in S.M.S. Pharmaceuticals Ltd. (supra). The materials on record clearly show that these Appellants were independent, non-executive Directors of the company. As held by this Court in Pooja Ravinder Devidasani v. State of Maharashtra and Anr. (supra) a non-Executive Director is not involved in the day-to-day affairs of the company or in the running of its business. Such Director is in no way responsible for the day-to-day running of the Accused Company. Moreover, when a complaint is filed against a Director of the company, who is not the signatory of the dishonoured cheque, specific averments have to be made in the pleadings to substantiate the contention in the complaint, that such Director was in charge of and responsible for conduct of the business of the Company or the Company, unless such Director is the designated Managing Director or Joint Managing Director who would obviously be responsible for the company and/or its business and affairs.
*** 46. As held by this Court in National Small Industries Corporation Ltd. v. Harmeet Singh Painta quoted with approval in the subsequent decision of this Court in Pooja Ravinder Devidasani v. State of Maharashtra and Anr. (supra)the impleadment of all Directors of an Accused Company on the basis of a statement that they are in charge of and responsible for the conduct of the business of the company, without anything more, does not fulfil the requirements of Section 141 of the NI Act…”

17. Coming to the facts of the present case, a perusal of Form No. DIR-12, dated 16.01.2017, of the accused company K.S. Oils Limited shows that the petitioner was an independent director at the time of commission of the offence. In view of Section 141 of Negotiable Instruments Act, 1881 and Section 149 of Companies Act, 2013 petitioner could have been held vicariously liable only if it was shown that she was incharge of and was responsible for the conduct of the business of the company at the time of commission of offence, and not otherwise
18. As per settled legal propositions, it was to be specifically averred in the complaint as to how the petitioner, being an independent director, was incharge of day to day affairs of the company as well as the conduct of business. However, nothing of this sort can be inferred from the complaint filed before the learned Trial Court. The relevant para of the complaint casting allegations against all the directors of the accused company is as under:
“2. That Accused No.l Is a company registered under the provisions of the Companies Act 1956. Accused Nos. 2 to 14are the Directors of the Company who were incharge of managing the day to day affairs of the Company. All the accused nos. 2 to 14 were at the helm of affairs of the Company at the time of Its dealing with the Complainant and/or at the time when the subject matter SI cheques were issued to the Complainant and at the time of dishonour of cheques.
3. That in or around August 2012, Accused No.l acting through the Accused persons approached the Complainant and expressed its intention to import Crude Palm Oil through the Complainant, while making assurances to the Complainant that you were in sound financial position assuring the Complainant of timely payment against such imports. That since the quantities of Import was huge, several rounds of meetings took place between the representatives of the Complainant and Accused persons. Each of the accused persons had been dealing with the Complainant on behalf of Accused No.l…”

24. In view thereof, the impugned order dated 28.11.2018 passed by the learned MM-04, Patiala House Courts, New Delhi in CC No.16201/2017 is thus, quashed to the extent of issuing of summons to the present petitioner for alleged commission of the offence punishable under Section 138 of the Negotiable Instruments Act, 1881.

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judgement delhi high court

24Jun, 2023

Hindu Law Partition In a suit filed by a co-sharer, coparcener, co-owner or joint owner, for partition and separate possession of his share qua others, it is necessary for Court to examine nature and character of properties in suit

ASHWINI CA 324/15 13/01/15 [ Abhay JJ ] [ SUPREME COURT ]

• Hindu Law Partition In a suit filed by a co-sharer, coparcener, co-owner or joint owner, for partition and separate possession of his share qua others, it is necessary for Court to examine nature and character of properties in suit Secondly, how devolution of his interest in property took place consequent upon his death on surviving members of family and in what proportion Thirdly whether properties in suit are capable of being partitioned effectively and if so, in what manner Lastly, whether all properties are included in suit and all co sharers, coparceners, co owners or joint owners, are made parties to suit These issues being material for proper disposal of partition suit, have to be answered by Court on the basis of family tree, inter se relations of family members, evidence adduced and principles of law applicable to case Impugned judgment set aside and case remanded to High Court for deciding first appeal and cross objections afresh SHASIDHAR vs

Leave granted.
2. This appeal is filed by the defendants against
the judgment and order dated 06.12.2012 passed
1
VERSUS
Appellant(s)

by the Division Bench of the High Court of Karnataka Circuit Bench at Dharwad in Regular First Appeal No. 3052 of 2010, which in turn arises out of the judgment and decree dated 10.02.2010 passed by the Ist Additional Civil Judge (Sr. Division) at Hubli in Original Suit No. 73 of 2004.
3. In order to appreciate the short issue involved in this appeal

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Shasidhar & Others Vs Ashwini Uma Mathad & Anr. Judgment Supreme Court the law literates

24Jun, 2023

Suit for Recovery Application under Order 37 Rule 3(5) of the CPC seeking leave to defend the suit. Plaintiff agreed to give a “dasti” loan of Rs. 45 lacs to the defendant

MAYA vs YASH CSOS 2254/13 27/04/15 [ Jayant JJ ] [ DELHI HIGH COURT ]Leave to defend dismiss

• Suit for Recovery Application under Order 37 Rule 3(5) of the CPC seeking leave to defend the suit. Plaintiff agreed to give a “dasti” loan of Rs. 45 lacs to the defendant. Defendant acknowledged having received the said sum of Rs. 45 lacs in cash vide receipt. Defendant is stated to have handed over an original signed receipt to the plaintiff with two cheques respectively drawn on Corporation Bank, Noida to enable the plaintiff to realise the sum on the stipulated date. However, I have already held in First Lucre Partnership Co. vs. Abhinandan Jain (supra) in somewhat similar facts and circumstances that the suit is based on a receipt issued by the defendant and not on the basis of the unpresented cheques. The present suit is not based on the unpresented cheques but is based on the receipt executed by the defendant showing receipt of Rs. 45 lacs as a loan. Defendant has failed to show any worthwhile defence to the case of the plaintiff. The defence is entirely moonshine and frivolous. Defence is entirely moonshine and frivolous. The receipt showing receipt of Rs. 45 lacs has been placed on record duly corroborated by post dated cheques. All three documents are duly signed by defendant. The primary defence that the receipt was executed without receipt of any money whatsoever is a complete sham defence with no basis whatsoever. It is not possible to grant leave to defend to the defendant on this defence on other pleas taken. Application dismissed.

10. Coming to the third contention of the defendant about cheque having been signed by Shri Yash Chhabra in the capacity of Director of M/s Sanya Fibre Private Limited whereas the receipt is signed by the said Yash Chhabra in the individual capacity. This contention again appears to be misplaced and without any merits. The receipt executed by the defendant Mr.Yash Chhabra specifically states that payment has been received by the defendant against cheque No.690846 and 690845 i.e. the cheques issued by the said M/s Sanya Fibre Private Limited. The signatory of the cheque and the receipt is the same i.e. Mr.Yash Chhabra. What persuaded the defendant i.e. Mr.Yash Chabra to issue cheques from the account of M/s Sanya Fibre Private Limited? It was for him to have explained. His own conduct and acts cannot constitute a ground for defence of the present suit. There is no attempt even to explain the relationship between the defendant and the M/s Sanya Fibre Private Limited. In fact a perusal of the documents filed by the defendants show that the defendant himself has filed on court record IT returns and bank statements of M/s Sanya Fibre Private Limited. He has also filed along with list of documents a list of shareholders of M/s Sanya Fibre Private Limited. The shareholding of M/s Sanya Fibre Private Limited shows that bulk of the shares the owned by the defendant himself. A small amount of shares are owned by his wife, son and daughter. It is a family company wholly controlled by the defendant and his family. The plea is clearly without merits.
11. Coming to the fourth contention. It is contended that the cheques
cannot be the basis of a suit under Order 37 CPC. The contention of the defendant is that the cheques were not presented and hence a suit does not lie under Order 37 of CPC, in view of the judgments cited by the defendant. There can be no dispute with the said contention. The Division Bench in Bal Dev Singh vs. Rare Fuel and Automobiles Technologies (P) Ltd. (supra) has categorically held so.
However, I have already held in First Lucre Partnership Co. vs. Abhinandan Jain (supra) in somewhat similar facts and circumstances that the suit is based on a receipt issued by the defendant and not on the basis of the unpresented cheques. The present suit is not based on the unpresented cheques but is based on the receipt executed by the defendant showing receipt of Rs.45 lacs as a loan.
12. One cannot also ignore section 139 of the Negotiable Instruments Act which provides that it shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque for discharge, in whole or in part, of any debt or any other liability. Hence, an unpresented cheque cannot be a basis of a suit under Order 37 CPC. However, the plaintiff can certainly use it to support the receipt dated 20.01.2011 i.e. it would have evidentiary value.

13. In my opinion, the facts of the above case fall in the category (d) which have been narrated by the Supreme Court in the case of M/s.Mechelec Engineers & Manufacturers vs. Basic Equipment Corporation (supra). The defendant has failed to show any worthwhile defence to the case of the plaintiff. The defence is entirely moonshine and frivolous. The receipt showing receipt of Rs.45 lacs has been placed on record duly corroborated by post dated cheques. All three documents areduly signed by defendant. The primary defence that the receipt was executed without receipt of any money whatsoever is a complete sham defence with no basis whatsoever. It is not possible to grant leave to defend to the defendant on this defence on other pleas taken. Application is dismissed. CS(OS) 2254/2013
14. As the above application for leave to defend has been dismissed, the suit is decreed with interest @9% per annum from the date of filing of the suit till recovery. Plaintiff shall also be entitled to costs.

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Maya jain Vs Yash Chabra delhi high court the law literates

22Jun, 2023

Sections 366A, 376 and 34 IPC POCSO ACT Section 4 Procuration of minor girl and rape Statement of victim cannot be trustworthy in the light of the fact

Deepak vs State CRLSJ 1011/22 29/03/23 [ ALOK JJ ] [ PATNA HIGH COURT ]

• Sections 366A, 376 and 34 IPC POCSO ACT Section 4 Procuration of minor girl and rape Statement of victim cannot be trustworthy in the light of the fact adduced during evidence before the Court is quite inconsistent with the story of prosecution Her evidence does not inspire confidence and such evidence cannot be trustworthy No injury was found on victim’s body – In Doctor’s opinion on the basis of pathological and radiological findings, there is no sign of sexual assault and the age of the victim is about 17-18 years Out of eight factual witnesses, PW-1, PW-2, PW-3, PW-4, PW-5 and PW-7 (six in numbers) have been declared hostile and so far as PW-9 (informant) and PW-6 are concerned, they have not been declared hostile but they are not eye witness of the actual occurrence Occurrence took place on 08.06.2015 and information regarding the said occurrence was given to concerned police station on 10.06.2015 when place of occurrence is merely 2 km away from the concerned police station – 1.0. has not been examined – Accused entitled to benefit of doubt Conviction and sentence set aside Appeal allowed. [Paras 23, 28, 31 and 32]

31. From perusal of the FIR it is crystal clear that initial version of the prosecution story has been narrated by none else than informant who is father of the victim himself but so far as deposition of PW-9 (informant) is concerned, during cross examination informant has stated that neither he is aware of the author of the FIR nor does he know about the contents of the same then the question arises who has prepared the initial version of FIR which puts question mark on the said version of prosecution. From perusal of record it is crystal clear that out of eight factual witnesses, PW-1, PW-2, PW-3, PW-4, PW-5 and PW-7 (six in numbers) have been declared hostile and so far as PW-9 (informant) and PW-6 are concerned, they have not been declared hostile but they are not eye witness of the actual occurrence. PW-9 who is informant of the case during cross examination he has stated that he did not know who is the author of the written report and he cannot point out what is mentioned in the said written report which makes the whole prosecution story doubtful. One of the witnesses namely Md. Saheb who puts signature on written report has not been examined. Apart from the said discussions made above, story of prosecution creates doubt in light of the factthat occurrence took place on 08.06.2015 and information regarding the said occurrence was given to concerned police station on 10.06.2015 when place of occurrence is merely 2 km away from the concerned police station. He further submitted that in one column of formal FIR, there is interpolation regarding entries and no plausible explanation has been given regarding the said delay in lodging the FIR and said interpolation.

32. It is worth to note that I.O. has not been examined and contention of learned counsel of the appellant is quite sustainable in the light of the fact that on account of non examination of the investigating officer, the place of occurrence has not been identified and the veracity of the prosecution witnesses has not been tested as defence has not got opportunity to test the veracity of prosecution witnesses in the light of oral statement given before the investigating officer.

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DEEPAK KUMAR VS STATE OF BIHAR JUDGMENT PATNA HIGH COUTT

22Jun, 2023

Section 306 IPC Appeal against acquittal Abetment of suicide Allegation that due to cruelty and illegitimate relations of accused husband, victim committed suicide Nothing stated by victim about such relations to her parents Allegations about cruelty

State of Maharashtra vs Ram CRLA 557/07 04/02/20 [ JOSHI JJ ]

• Section 306 IPC Appeal against acquittal Abetment of suicide Allegation that due to cruelty and illegitimate relations of accused husband, victim committed suicide Nothing stated by victim about such relations to her parents Allegations about cruelty general in nature No handwriting expert’s opinion obtained to show letter given by victim to her parent was in fact scribed by her Neighbours turned hostile and not supported prosecution case Dowry demand also not established Victim was suffering from T. B. since 3-4 years Possibility of committing suicide by burning due to depression as she lost her three children consecutively not ruled out Prosecution has failed to point out any nexus between letter and death of deceased Prosecution has failed to prove that accused aided and abetted commission of suicide Acquittal order is affirmed Appeal by State dismissed.

34. A useful reference can be made of the case Sanju alias Sanjay Singh Sengar .v. State of M.P. reported in (2002) 5 SCC 371 wherein a quarrel took place between the appellant and the deceased. The appellant said to the deceased ‘to go and die” and two days thereafter the deceased committed suicide. She made a suicide note. The Hon’ble apex Court observed that “to go and die” itself does not constitute the ingredient of instigation. The word “instigate” denotes incitement or urging to do some drastic or inadvisable action or to stimulate or incite. It is further held that the presence of mens rea is the necessary concomitant for instigation.
35. In (2017) 1 SCC 433 in case of Gurcharan Singh v. State of Punjab, the Hon’ble apex Court has observed in para 21 as under :-
21. It is thus manifest that the offence punishable is one of abetment of the commission of suicide by any person, predicating existence of a live link or nexus between the two, abetment being the propelling causative factor. The basic ingredients of this provision are suicidal death and the abetment thereof. To constitute abetment, the intention and involvement of the accused to aid or instigate the commission of suicide is imperative. Any severance or absence of any of these constituents would militate against this indictment. Remoteness of the culpable acts or omissions rooted in the intention of the accused to actualise the suicide would fall short as well of the offence of abetment essential to attract the punitive mandate of Section 306 IPC. Contiguity, continuity, culpability and complicity of theindictable acts or omission are the concomitant indices of abetment. Section 306 IPC, thus criminalises the sustained incitement for suicide.”

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Judgment appeal dismiss Bombay High court the law literates

20Jun, 2023

Succession Act Section 63 Execution of the will Whether the Will dated 09.12.1994 propounded by the Petitioner is the last Will and testament of deceased

SHYAM vs BRIJ FAO 439/08 11/02/11

[ DELHI HIGH COURT ]

• Succession Act Section 63 Execution of the will Whether the Will dated 09.12.1994 propounded by the Petitioner is the last Will and testament of deceased and it has been executed by her in sound disposing mind and it is a valid Will The learned ADJ has thus ignored the explanation furnished by the testatrix for bequeathing the residential house in favour of the Appellants inasmuch as the testatrix has given the residential house to the Appellants while she has given the business left by her husband to the other two sons. As far as the capacity of the deceased testatrix in having executed the Will in question, the very fact that the property stands in the name of the deceased testatrix itself proves capacity of the testatrix to execute the Will — The question of inheritance of the shop which admittedly was inherited by the deceased testatrix as a sole tenant after the death of her husband also cannot be considered as a suspicious circumstance for having deprived those sons who are now carrying out the business in the shop of her husband to the exclusion of the other sons to whom the house has been bequeathed Appeal is allowed

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SUDHIR KHANNA. Versus JUGAL KISHORE KHANNA (DECEASED THROUGH LRS) AND ORS. judgment delhi high court

20Jun, 2023

Transfer of Property Act, Section 48 Easements Act, Section 41 Easmentary Right Where a person has created different rights in or over the same property and such rights cannot be exercised to their full extent together

DR. S. KUMAR vs RAMALINGAM CA 8628/09 16/07/19 [ (Justice L. Nageswara Rao) & (Justice Hemant Gupta)]

[ SUPREME COURT OF INDIA ]

• Transfer of Property Act, Section 48 Easements Act, Section 41 Easmentary Right Where a person has created different rights in or over the same property and such rights cannot be exercised to their full extent together, then each later created right shall be subject to the rights previously created. The exception is if special contract or reservation binding the earlier transferee is executed. It will mean that the exclusive right conferred on the plaintiff in the sale deed will not be legal till such time the earlier transferee has a special contract or reservation which binds her. Since the right of access to defendant No. 2 was reserved in the sale deed, therefore, the vendor could not confer exclusive right to the plaintiff vide sale deed – Plaintiff has to maintain the property in any case in terms of the recital in his sale deed Therefore, if the defendant No. 2 or her transferees use the passage, then such use of passage by defendant No. 2 or her transferees cannot be said to be causing any prejudice to the plaintiff – Argument that right of easement stands extinguished once the easement of necessity comes to an end is not applicable to the facts of the present case – Argument is based on the fact that right, title and interest of both the defendants now stand merged in one person after the death of both the defendants. The rights of the parties arise out of document of title in the year 1976. Still further, the rights of the parties have to be adjudicated upon as they exist on the date of filing of the suit. The subsequent events of inheritance vesting the property in the same person will not take away the right of the defendants to use the passage adjacent to their land only because the defendant No. 2 has gifted part of land to defendant No. 1 or that after the death of both the defendants, the common legal proceedings inherited the property – Appellants have been granted right to use passage in the sale deed – Thus, it is not easement of necessity being claimed by the appellants. It is right granted to defendant No. 2 in the sale deed therefore, such right will not extinguish in terms of Section 41 of the Indian Easements Act High Court suffers from manifest error and, thus, cannot be sustained in law Appeal allowed.

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19Jun, 2023

Section 302 IPC Evidence Act Section 106 Murder Burden of proving Accused and deceased usually stayed together in the house

NATHU MUNDA vs STATE OF ASSAM CRLA 108/17 04/03/20

BEFORE ( DOUBLE BENCH)
HON’BLE MR. JUSTICE SUMAN SHYAM
HON’BLE MR. JUSTICE HITESH KUMAR SARMA

[ GAUHATI HIGH COURT ]

• Section 302 IPC Evidence Act Section 106 Murder Burden of proving Accused and deceased usually stayed together in the house do not necessarily mean that on the date as well at the time of occurrence also, they were together Prosecution has not been able to discharge its initial burden of proving the case as none of the witness has implicated the accused-appellant except the fact that the accused was in his house on the date of occurrence and the deceased usually resided with him there in that house But, there is no evidence to establish that at the time of occurrence, the deceased was with the accused in his house Not find the conviction of the accused is based on evidence on record. Therefore, he deserves acquittal on benefit of doubt.

Relevant Paras

12) The evidence of PW3 & PW4 has no bearing on the decision of this case as none of them has indicated in their evidence as to the source of their information that the accused- appellant had assaulted the deceased. Therefore, their evidence remains hearsay having no evidentiary value.
13) PW5, Dr. Debarshee, is the autopsy doctor. On 15.07.2016, she had performed the postmortem examination on the dead body of the deceased Somari and found as follows.
External Appearance: A female dead body of average built and swarthy complexion with eyes closed and mouth partially opened. Wearing a red colour blouse and brown petticoat. Swelling of the left perioribital area is present. The rigor mortis is found to be present all over the body and the body was cold to touch externally and warm internally.
Injuries:-
1. A contusion of size 3 cm x 2 cm is present in the 6th intercoastal space in the mid axillary line on the right side of the chest;
2. A contusion of size 16 cm x 14 cm is present over anterolateral aspect of left arm along with swelling;
3. The left ear lobule is found to be lacerated at places. The margins of the wound are found to be contused and irregular;
4. Sternum is found fractured in its upper one third;
5. 2nd, 3rd, 4th, 5th and 6th ribs are found fractured in the mid clavicular
in the right chest;
6. 2nd, 3rd, 4th and 5th ribs are found fractured in the mid calvicular line on the left side of chest.
On examination of cranium and spinal canal: Scalp healthy. Left temporalies muscle found
contused at places. Skull and vertebrae are healthy. Membrane and brain are pale. Spinal cord not examined.

On examination of the abdomen: The superior surface of the liver is found lacerated and the size of the laceration is 6.5 cm x 1 cm x liver parenchyma deep. Spleen was healthy. Kidneys are pale. The bladder mucosa was pale and the bladder cavity was empty. The walls were healthy and on dissection, the abdominal cavity was found to contain 1200 ml liquid and clotted blood. Peritoneum was pale. Mouth, pharynx and oesophagus, mucosa was pale in stomach. Mucosa was pale and the stomach cavity was empty and small intestine, mucosa was pale and contents glue like contents. Large intestine, mucosa was pale and contained gaseous and fecal matters.
Thorax:- Walls as described. Ribs and carrilaged as descried. On dissection, the chest cavity was found to contain 400 ml liquid and clotted blood.
Pleurae:- Pleurae were pale and lacerated on the right side at places. Larynx and trachea: mucosa were pale. Right lung was found lacerated and contused at places. Left lung was contused at places. Pericardium was contused at places. Heart was healthy and chambers were found empty. Thorasic vessels were found healthy. Organs of generation externally healthy and internally uterus was empty and healthy. Others were found healthy.

The opinion of the doctor is follows:
Death was due to hemorrhagic shock as a result of the injuries sustained over abdomen and chest as described. All the injuries described were ante mortem and caused by blunt force impact. Approximate time since death 6-12 hours.
14) The evidence of PW6, the investigating officer, is that on 15.07.2016 he had received the FIR from PW1 and thereafter he had investigated into the case. He prepared the sketch- map of the place of occurrence vide Ext. 5. He also caused the inquest of the dead body done by one Executive Magistrate, namely, A. Baruah. He also visited the place of occurrence and sent the dead body of the deceased for postmortem examination. He also found the accused persons at the place of occurrence and arrested him. He recorded the statement of the accused-appellant and after completion of the investigation filed the charge-sheet. He has confirmed in his evidence that the PW2 had made a statement before him that the accused-appellant had told him that on the last night he had given a slap on the body of the deceased following which she fell down.
15) The evidence of the autopsy doctor (PW5) and her opinion show that the deceased had died due to the hemorrhagic shock as a result of the injuries sustained over abdomen and chest and the injuries were ante mortem in nature. There is no evidence adduced by any of the witnesses that the accused-appellant had assaulted the injured on any part of her body except on ear. From the judgment of the learned trial court, it appears that the conviction of the accused-appellant is based on circumstantial evidence as indicated in paragraph-22 of the impugned judgment. The circumstances, as pointed out by the learned trial court, are,

i) Last seen together theory,
ii) Recovery of the dead body of the deceased Somari from the accused person’s house; and
iii) Severe injuries detected on the body.
16) That apart, the learned trial court has also held that since the dead body was found in the house of the accused-appellant and as the accused-appellant and his deceased wife were the only occupants of the house, the accused-appellant is required to furnish an explanation as to under what circumstances the deceased had died.
17) We have already found that the evidence of none of the witnesses has implicated the accused-appellant with the commission of the alleged offence except speaking in unison that the dead body of the deceased was found lying in the house of the accused-appellant.

20) In this case, we have noticed that the circumstances of last seen together theory has not been proved by the prosecution. There is an explanation given in his statement under Section 313 Cr.PC by the accused-appellant that his wife/deceased left the house in the night with his permission. Section 106 Indian Evidence Act does not shift the burden of proof in a criminal trial, which is always upon the prosecution. From the evidence discussed above, we have already found that the prosecution has not been able to discharge its initial burden of proving the case as none of the witness has implicated the accused-appellant except the fact that the accused-appellant was in his house on the date of occurrence and the deceased usually resided with him there in that house. But, there is no evidence to establish that at the time of occurrence, the deceased was with the accused-appellant in his house. Such fact has to be read in combination with the explanation of the appellant given in his statement under Section 313 Cr.PC. The accused-appellant had stated in his statement that he did not know as to at what time the deceased had come back home after she left the house with his permission. Apart from that, to base conviction on circumstantial evidence there has to be a consistent chain of circumstantial pointing unerringly to the guilt of the accused. But, here in this case we have not found any circumstance, except the evidence thattheaccusedappellantandthedeceasedusuallystayedtogetherintheirhouse. Forthis circumstance only, in spite of failure on the part of the prosecution to discharge its initial burden to prove the case, we are unable to persuade ourselves to hold the accused- appellant guilty of commission of murder of the deceased taking refuge of the provisions of Section 106 of the Indian Evidence Act.

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Judgment Gauhati High Court -PS. Khowang vs state Acquittal display_pdf (3)