4Feb, 2023
Order 23 Rule 3A CPC Bar to suit – Initially, the suit was filed by the respondent merely on the strength of consent decree passed in the divorce suit – Subsequently
[ UTTARAKHAND HIGH COURT ]
VINEET KUMAR JAIN vs ARCHANA GARG FA 38/15 23/10/19 [ Alok JJ ]
• Order 23 Rule 3A CPC Bar to suit – Initially, the suit was filed by the respondent merely on the strength of consent decree passed in the divorce suit – Subsequently, various things were stated in the plaint regarding conduct of the parties as well as arrangement of consideration money for the purchase of the house – Suit was not filed claiming herself owner of the house by the respondent. It is important to note that the initial objection of the appellant was also to the effect that terms and conditions of the consent decree passed in Divorce Suit had been violated by the respondent. In fact, on 04.10.2008 the appellant informed the Court that he has no intention to evict the appeal. It has been recorded in the order sheet dated 04.10.2008 of the suit – The settled legal position, as discussed, is that the consent decree is binding. It is an agreement between the parties with the approval of the Court. It may not act as res-judicata but it acts as estoppel. If for the enforcement of a consent decree, a separate suit is permitted to be filed, it will give rise to the multiplicity of the suit. It would be against the intention of the legislature as embodied under Order 23 Rule 3A of CPC. The suit, as such, is not maintainable.
1Feb, 2023
Section 438 and 439 CRPC Bail Process of criminal law cannot be utilised for arm-twisting and money recovery, particularly while opposing the prayer for bail
BIMLA vs STATE OF BIHAR SLCRL 834/23 16/01/23
[ SUPREME COURT ]
• Section 438 and 439 CRPC Bail Process of criminal law cannot be utilised for arm-twisting and money recovery, particularly while opposing the prayer for bail – Question as to whether pre-arrest bail, or for that matter regular bail, is to be granted or not is required to be examined and the discretion is required to be exercised by the Court with reference to the material on record and the parameters governing bail considerations – Bail could be declined even if the accused has made payment of the money involved or offers to make any payment – Held that there is no justification in adopting such a course that for the purpose of being given the concession of pre-arrest bail, the person apprehending arrest ought to make payment – Recovery of money is essentially within the realm of civil proceedings. [Paras 9 to 11]
click here for the Judgment:
BIMLA TIWARI PETITIONER VERSUS STATE OF BIHAR & ORS._Judgement_16-Jan-2023
22Jan, 2023
Accused was rightly acquitted in cheque bounce case as complainant’s ITR proved his financial incapacity to give loan: SC
FEMA, BANKING & INSURANCE : SC upholds acquittal in cheque bounce case as Trial Court’s order had considered complainant’s ITR, non-production of pro-notes, witnesses & all circumstances
• After analyzing all pieces of evidence, the learned Trial Court found that the Income Tax Returns of the complainant did not disclose that he lent amount to the accused, and that the declared income was not sufficient to give loan of Rs.3 lakh. Therefore, the case of the complainant that he had given a loan to the accused from his agricultural income was found to be unbelievable by the learned Trial Court. The learned Trial Court found that it was highly doubtful as to whether the complainant had lent an amount of Rs.3 lakh to the accused.
• The learned Trial Court also found that the complaint had failed to produce the promissory note alleged to have been executed by the accused on 25th October 1998.
• After taking into consideration the defence witnesses and the attending circumstances, the learned Trial Court found that the defence was a possible defence and as such, the accused was entitled to benefit of doubt.
• The standard of proof for rebutting the presumption is that of preponderance of probabilities. Applying this principle, the learned Trial Court had found that the accused had rebutted the presumption on the basis of the evidence of the defence witnesses and attending circumstances. The scope of interference in an appeal against acquittal is limited. Unless the High Court found that the appreciation of the evidence is perverse, it could not have interfered with the finding of acquittal recorded by the learned Trial Court. In that view of the matter, the High Court was not justified in reversing the order of acquittal of the appellant.
Adv Megha
SUPREME COURT OF INDIA
Rajaram
v.
Maruthachalam
B.R. GAVAI AND M. M. SUNDRESH, JJ.
CRIMINAL APPEAL NOS. 1978 AND 1990 OF 2013
CIVIL APPEAL NOS. 10500 AND 10501 OF 2013
JANUARY 18, 2023
JUDGMENT
22Jan, 2023
Sections 302 and 34 IPC Appeal against conviction Murder Dying declaration Deceased in her dying declaration deposed that accused persons
Judgment.Cr.Apeal.47.2000.doc
[ BOMBAY HIGH COURT ]
Kanaji vs State of Maharashtra
_*• Sections 302 and 34 IPC Appeal against conviction Murder Dying declaration Deceased in her dying declaration deposed that accused persons, her husband and his first wife poured kerosene and set her on fire First dying declaration immediately recorded at hospital in presence of Doctor, Special Executive Officer and PSI One can containing Kerosene, one burnt saree, and one burn quilt, were found in the kitchen and the flooring was cleaned Accused persons had not taken the defence that the Ratna had committed suicide Evidence of PSI showing that deceased alone came to Police Station in burnt condition and one Constable was deputed to shift her to hospital – Doctor also stated that deceased was brought to hospital by one Constable – Plea of accused that he carried deceased to hospital, unacceptable – Deceased died homicidal death Conviction proper. [Paras 23, 25, 26, 27, 28 and
23. Firstly, we consider the issue that the death of Ratna being accidental or homicidal ? Learned Trial Court has dealt with this issue in detail in paragraph 7, 8 and 9 of the judgment. It is not in dispute that the deceased Ratna was residing with accused nos. 1 and 2 under same roof. It is also not in dispute that on 04.09.1997 Ratna was in the house of accused no. 1 and at about 04.30 a.m she sustained 100% burns in the house of accused no. 1. Dr. Ansari (PW 1), the MedicalOfficer in IGM Hospital, Bhiwandi stated that Ratna was brought by police constable D.M. Shirsat to the hospital. Then Ratna gave the history to him that her husband i.e. accused no. 1 and his first wife poured kerosene and set her on fire on 04.09.1997 at about 04.30 a.m. Considering this evidence, it is proved that the Ratna died homicidal death.
25. At the cost of repetition, we may state that Ratna was firstly taken to IGM Hospital, Bhiwandi, where PSI Shendage (PW 8) recorded dying declaration in presence of Special Executive Officer and Medical Officer. Dr. Ansari (PW 1). Ratna stated that her husband i.e. accused no. 1 and his first wife poured kerosene and set her on fire on 04.09.1997 at about 04.30 a.m. It also came on record that in the Register at Exh. 15, maintained in IGM Hospital, Bhiwandiwherein it has been recorded that burns were caused by husband and his first wife by pouring kerosene.
26. In the spot panchnama, it can be seen that panchnama was drawn up in the morning and at that time there was kerosene smell in the kitchen. One can containing kerosene, one burnt saree, and one burnt quilt, were found in the kitchen and the flooring was cleaned. If we consider this aspect of the matter, it can be said that Ratna did not sustain 100% burns accidentally or her attempt was to commit suicide. It is important to note that both the accused persons had not taken the defence that the Ratna had committed suicide. It was further found that floor was cleaned.
27. It is the the submission of learned Counsel appearing for the Appellant that the deceased was tutored by Sumanbai (PW 3) and Vimal (PW 5). In their evidence, it is reflected that both the witnesses were called by police. Vimal (PW 5) in her deposition stated that she was at Bhiwandi, and police informed her about the incident and then she went to Ratna at Thane Civil Hospital on second day. The first dying declaration was immediately recorded at IGM Hospital,Bhiwandi only in presence of Dr. Ansari (PW 1), Special Executive Officer and PSI Shendage (PW 8). Thus, it can safely be said that deceased had no occasion to meet with these two witnesses and was not tutored. Considering this aspect, we are unable to accept the submission that the dying declarations are doubtful or victim was tutored.
28. The accused no. 1 in his statement under Section 313 of Cr.P.C. stated that he had carried deceased Ratna to hospital but, there is no supportive evidence to it. On the contrary, the evidence of PSI Shendage (PW 8) clearly shows that Ratna alone came to Bhiwandi Town Police Station in burnt condition and he deputed one constable to shift her to IGM, Hospital. Dr. Ansari (PW 1) also stated in his evidence that the deceased Ratna was brought to hospital by one constable Shirsat.
29. Considering the above referred material and evidence, it can be stated that the death of deceased Ratna is a homicidal death and the Appellants are the author of crime.
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Kanaji Laxman Chavan & Smt. Hansa Kanji Chavan vs state of Maharastra Judgment
Adv Vaibhav Tomar (All Rights Reserved)
19Jan, 2023
Section 326 IPC Section 82 CRPC Appeal against acquittal – For offence of voluntary causing grievous hurt by dangerous weapons or means –
BOMBAY HIGH COURT
State of Goa vs Venkatesh CRL-A 37/01
Section 326 IPC Section 82 CRPC Appeal against acquittal – For offence of voluntary causing grievous hurt by dangerous weapons or means – Appellant/State was expected to serve respondent(original accused) – But the record shows that State was unable to serve respondent, as a consequence of which nonbailable warrants were issued against respondent – Despite number. of opportunities granted, appellant-State has not been able to serve notice to respondent or to execute non-bailable warrant – Appeal pending for 21 years – Held, no purpose would be served by keeping appeal pending Appeal dismissed in default. [Paras and 8]
4. Thereafter execution of the non-bailable warrant was awaited and the subsequent orders show that on number of occasions time was granted to the appellant/State to take necessary steps in the matter, on a few occasions recording that the adjournment was granted as a matter of last chance.
5. By order dated 24.6.2019, this Court recorded that several attempts were made to serve the respondent and to trace him, including by issuing a proclamation for person absconding under Section 82 of the Cr.P.C., yet the respondent could not be served. By the said order, fresh non-bailable warrant was issued to be executed by the Superintendent of Police, District Warangal, which was the last known place of residence of the respondent.
28/02/22
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Judgment Bombay HC display_pdf (33)
Adv Saba Hasan ( All rights reserved)
16Jan, 2023
Section 439 CRPC Sections 302, 307, 506(2) and 114 IPC Gujarat Police Act Section 135 Regular bail Person should be deprived of his liberty upon only belief that he will tamper with witnesses
[GUJARAT HIGH COURT ]
NARANSINH vs STATE OF GUJARAT CRMA 21006/22 23/12/22
•Section 439 CRPC Sections 302, 307, 506(2) and 114 IPC Gujarat Police Act Section 135 Regular bail Person should be deprived of his liberty upon only belief that he will tamper with witnesses if left at liberty, save in most extraordinary circumstances Applicant accused has played important role in commission of alleged offence Possibility that if applicant accused is released on regular bail then applicant-accused will not remain present before Court during trial in alleged offence and at this stage, even accused is in jail relatives or friends have tried to convince complainant and witnesses to settle the issues Thus, looking to affidavit filed by original complainant, it appears that complainant has stated on oath that matter is amicably settled between parties and if applicant is released on bail he has no objection Such a practice is unwarranted and it amounts to hampering/tempering with the evidence or witnesses, when such serious offence of murder is committed Therefore, affidavit on oath filed by original complainant cannot be considered Hence, no grant of regular bail.
13. In view of the above, it appears that the applicant accused has played important role in commission of alleged offence. There is possibility that if the applicant accused is released on regular bail then applicant-accused will not remain present before the Court during trial in the alleged offence and at this stage, even the accused is in the jail relatives or friends have tried to convince the complainant and witnesses to settle the issues. At this stage, it is important to note here that looking to the affidavit filed by the original complainant, it appears that the complainant has stated on oath that the matter is amicably settled between the parties and if the applicant is released on bail he has no objection. Such a practice is unwarranted and it amounts to hampering/ tempering with the evidence or witnesses, when such a serious offence of murder is committed. Hence, this Court is of the opinion that such an affidavit on oath filed by the original complainant cannot be considered, looking to the gravity and severity of the offence committed by the accused person.
(Adv Saba Hasan)All Rights Reserved
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CR. NARANSINH AMARSINH BIHOLA Versus STATE OF GUJARAT judgment _3_23122022
14Jan, 2023
Hindu Marriage Act, 1955 – Cruelty – Refusal by Hindu wife to wear `sakha and sindoor’ will project her to be unmarried and signify her refusal to accept the marriage /High Court
[ GAUHATI HIGH COURT ]
Sri Bhaskar Das v/s Smti. Renu Das MAT APP 20/19 19/06/20
Hindu Marriage Act, 1955 – Cruelty – Refusal by Hindu wife to wear `sakha and sindoor’ will project her to be unmarried and signify her refusal to accept the marriage – Under such circumstances compelling the appellant husband to continue to be in matrimony with the respondent wife may be construed to be harassment upon appellant and his family members – Family Court erred in evaluating the evidence in proper perspective – Allegation of subjecting the respondent wife to cruelty was not sustained – Lodging of criminal cases on unsubstantiated allegations against husband and/or husband’s family members amounts to cruelty.
para 15. In view of forgoing discussion, we conclude that appellant has made a ground for grant of decree of dissolution of marriage on the ground as mentioned in Section 13(1)(i-a) of the Hindu Marriage Act, 1955.
(AdvVaibhav Tomar)All Rights Reserved
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Bhaskar das vs renu das judgment High court display_pdf (23)
13Jan, 2023
Section 482 CRPC NI ACT Section 13 Quashing the criminal complaint Dishonour of cheque
[ DELHI HIGH COURT ]
JASWEEN SANDHU Vs STATE CRLMC 437/19 06/09/22 [ SUDHIR JJ ]
Section 482 CRPC NI ACT Section 13 Quashing the criminal complaint Dishonour of cheque Plea that complaint is perverse and does not disclose any lawful liability or debt towards the petitioner and petitioner is not the drawer of the cheque in question Since liability regarding dishonour of cheque in question cannot be fastened on the petitioner, so impugned order against the petitioner cannot be sustained, as such impugned order is set aside qua the petitioner only Petition allowed.
5. The petitioner challenged impugned order on the grounds that present complaint is perverse and does not disclose any lawful liability or debt towards the petitioner. The petitioner is not the drawer of the cheque in question. The trial court misdirected itself while passing the impugned order. The petitioner is not a joint account holder or vicariously liable with Amrit Sandhu Coster. The cheque in question was not issued by the petitioner but was issued by the sister of the petitioner namely Amrit Sandhu Coster. It was prayed that impugned order be set aside.
8. The counsel for the petitioner argued that the trial court committed a grave error while passing the impugned order as the petitioner is not the drawer and signatory of the cheque in question. The account from which cheque in question was issued does not belong to the petitioner. The petitioner has been wrongly impleaded as an accused. The petitioner cannot be made liable vicariously with Amrit Sandhu Coster. The petitioner was arrayed as accused No. 2 as per sections 141 and 142 of the Negotiable Instruments Act, 1881which are not applicable in present case. Amrit Sandhu Coster who is the petitioner in Crl.M.C. bearing no 556/2019 has admitted in notice given under section 251 of the Code that she was the signatory of the cheque and has handed over the cheque in question to the respondent no 2 in the year 2011 and issued stop payment instructions to the banker in the year 2011. The counsel for thepetitioner relied on Alka Khandu Avhad V Amar Syamprasad Mishra and another, AIR 2021 SC 1616 and Aprna A Shah V M/s Sheth Developers Pvt. Ltd. &another, (2013) 8SCC71.
15. The case of the respondent no 2 is that the petitioner and Amrit Sandhu Coster in discharge of their liability towards the respondent no 2 handed over cheque in question and promised that the said cheque would be obliged on presentation to discharge their legally enforceable debt.However, the petitioner is not drawer of the cheque in question which is issued and signed by the Amrit Sandhu Coster who is sister of the petitioner and is petitioner in petition bearing no 556/2019. The petitioner is not holder of account bearing no 90112010051035 in Syndicate Bank and is not operational in the name of the petitioner but is operational in name of Amrit Sandhu Coster. Amrit Sandhu Coster in notice under section 251 also admitted that she issued the cheque in question to the respondent no 2 in the year 2011 for my food court business vide proceedings dated 06.02.2019. The liability regarding dishonouring of cheque in question cannot be fastened on the petitioner.
(Adv Vaibhav Tomar )All Rights Reserved
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Jasween Sandhu vs state of NCT & Ors-Judgment-Delhi High Court
10Jan, 2023
SC interprets provisions w.r.t. computation of pre-deposit u/s 18 of SARFAESI for filing an appeal against DRT’s order
FEMA, BANKING & INSURANCE : SC interprets the provisions of section 18 of SARFAESI Act relating to computation of pre-deposit required from borrower for filing an appeal against DRT’s order
• In a case where the borrower also challenges the auction sale and does not accept the same and also challenges the steps taken under Section 13(2)/13(4) of the SARFAESI Act with respect to secured assets, the borrower has to deposit 50% of the amount claimed by the secured creditor along with interest and the amount of deposit made by auction purchaser will not be allowed as adjustment towards the pre-deposit. Such adjustment will be allowed in a case where the borrower accepts the auction sale of security and does not challenge it in appeal.
• In case of challenge to the sale of the secured assets, the amount mentioned in the sale certificate will have to be considered while determining the amount of pre-deposit under Section 18 of the SARFAESI Act. However, in a case where both are under challenge, namely, steps taken under Section 13(4) against the secured assets and also the auction sale of the secured assets, in that case, the “debt due” shall mean any liability (inclusive of interest) which is claimed as due from any person, whichever is higher.
PER COURT
• As per Section 18 of the SARFAESI Act, any person aggrieved, by any order made by the DRT under section 17, may prefer an appeal within thirty days to an appellate Tribunal (DRAT) from the date of receipt of the order of DRT. Second proviso to section 18 provides that no appeal shall be entertained unless the “borrower” has deposited with the Appellate Tribunal fifty percent of the amount of “debt due” from him, as claimed by the secured creditors or determined by the DRT, whichever is less and only and only then, an appeal under Section 18 of the SARFAESI Act is permissible against the order passed by the DRT under Section 17 of the SARFAESI Act. Under Section 17, the scope of enquiry is limited to the steps taken under Section 13(4) against the secured assets. Therefore, whatever amount is mentioned in the notice under Section 13(2) of the SARFAESI Act, in case steps taken under section 13(2)/13(4) against the secured assets are under challenge before the DRT will be the ‘debt due’ within the meaning of proviso to Section 18 of the SARFAESI Act. In case of challenge to the sale of the secured assets, the amount mentioned in the sale certificate will have to be considered while determining the amount of pre-deposit under Section 18 of the SARFAESI Act. However, in a case where both are under challenge, namely, steps taken under Section 13(4) against the secured assets and also the auction sale of the secured assets, in that case, the “debt due” shall mean any liability (inclusive of interest) which is claimed as due from any person, whichever is higher.
• As per the second proviso to Section 18 of the SARFAESI Act, it is the “borrower” who has preferred an appeal before the Appellate Tribunal and the “borrower” who shall have to deposit 50% of the amount of “debt due” from him. If the words used in the second proviso to Section 18 of the SARFAESI Act are “borrower has to deposit”, it is not appreciable how the amount deposited by the auction purchaser on purchase of secured assets can be adjusted and/or appropriated towards the amount of pre-deposit, to be deposited by the borrower. It is the “borrower” who has to deposit the 50% of the amount of “debt due” from him. At the same time, if the borrower wants to appropriate and/or adjust the amount realised from sale of the secured assets deposited by the auction purchaser, the borrower has to accept the auction sale. In other words, the borrower can take the benefit of the amount received by the creditor in an auction sale only if he unequivocally accepts the sale. In a case where the borrower also challenges the auction sale and does not accept the same and also challenges the steps taken under Section 13(2)/13(4) of the SARFAESI Act with respect to secured assets, the borrower has to deposit 50% of the amount claimed by the secured creditor along with interest as per section 2(g) of the Act 1993 and as per section 2(g), “debt” means any liability inclusive of interest which is claimed as due from any person.
• Words and Phrases: “borrower has to deposit” in second proviso to section 18of SARFAESI Act “debt due” in second proviso to section 18of SARFAESI Act
SUPREME COURT OF INDIA
Sidha Neelkanth Paper Industries (P.) Ltd.
v.
Prudent ARC Ltd.
M.R. SHAH AND B.V. NAGARATHNA, JJ.
CIVIL APPEAL NOS. 8969-70, 8972 TO 8974 OF 2022
JANUARY 5, 2023
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**Adv Megha** All rights reserved.