Legal Blog: January 2011

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Monday, January 31, 2011

Global Firms Mulling Expansion of Operations in India

Source : Indlaw

With a view to tapping huge long-term growth possibilities in the Asia's third largest economy, a majority of global firms are planning to expand their operations in India, an Ernst & Young (E&Y) study says. 

'Seventy-five per cent of the global businesses which are already present in India and formed part of the survey indicated that they would expand their operations (by expanding facilities or headcounts),' the study reveals. 

In the study, which was done in late 2010, the interviews of over 500 global business leaders on the potential of Indian market were incorporated. 

It says a large majority believe that India will become a global leader in education, research and development, innovation, and as a producer of high value-added goods and services by 2020.

It confirms that India is undergoing a transition, both in terms of investor perceptions of its market potential and in reality. 

On foreign direct investment (FDI) front, the study says India is still in recovery mode. 

With the slowdown in global investment flows, the number of FDI projects in 2010 remained constant compared to 2009 at around 750. 

Overall project numbers in 2010 were up 60 per cent on 2003 and the number of jobs created up by 30 per cent.

According to the survey respondents, the main competitors of India in terms of business appeal are China (60 per cent) and Brazil (9 per cent) among the rapid-growth markets and the US (17 per cent) and Germany (9 per cent) among the developed countries.

SC Vacates Stay on Chandramohan's Suspension

Source : Indlaw

The Supreme Court today cleared the decks for inquiry and action against the suspended Tamil Nadu Bar Council Chairman R K Chandramohan who was accused of pressurising a sitting Madras High Court Judge R Reghupathy at the instance of former Union Telecom Minister A Raja. 

A bench comprising Justices D K Jain and H L Dattu vacated the stay against the suspension of Chandramohan from the membership as well as chairmanship of Tamil Nadu Bar Council for his unethical action to obstruct the course of justice. 

Former Chief Justice of India K G Balakrishnan and sitting Supreme Court Judge H L Gokhale were recently involved in a controversy whether the report sent by Justice Gokhale, who was the Chief Justice of Madras High Court at that time, to the then CJI contained the name of the minister or not. 

Justice Gokhale had claimed that report carried the name of A Raja while the former CJI presently heading National Human Rights Commission (NHRC) had disputed the claim of Justice Gokhale. 

Mr Chandramohan had tried to intimidate Justice Reghupathy in a bail matter and he had told the judge to talk to the minister who was online on mobile phone, Justice Reghupathy had refused to talk to the Minister. 

He wanted bail for one Krishnamurthy and his son in a forgery case. 

Mr Chandramohan will not be able to participate in March 3 State Bar Council elections. 

Today's orders have been passed on a petition filed by an advocate Rajendra Elephant.

Sunday, January 30, 2011

10 Lawyers Designated as Sr. Advocates by Delhi High Court

Source : One India

The Delhi High Court has designated ten lawyers, including Delhi Bar Council Chairman Rakesh Tikku and two women lawyers, as senior advocates.

The lawyers designated as senior in a full court meeting on January 27 included women lawyers Jyoti Singh and Prem Lata Bansal beisdes Central government''s Standing Counsel Atul Nanda.

The meeting, attended by all high court judges, also designated Suhel Dutt, Abhinav Vashist, Pradeep Diwan, Deepjyot Narula, Suresh Chand Ladi and Anup Kapoor as senior lawyers.

The procedure for notifying the high court and the Supreme Court lawyers as senior would be done in a week''s timeby the High court.

A list of all Sr. Advocates designated by the Delhi High Court is available here. (Note: Latest Designations are not included)

Second Appeal under the Code of Civil Procedure, 1908 : Scope

Justice Chauhan
The Supreme Court, speaking through Justice BS Chauhan, has in Municipal Committee, Hoshiarpur v. Punjab State Electricity Board, examined the scope of S. 100 and 103 of the Code of Civil Procedure, 1908 and the law relating to Second Appeals against decrees. The Supreme Court has examined various judicial precedents on the subject and held as under;


Second Appeal: Sections 100 & 103 C.P.C.:

8. These provisions provide for the conditions precedent for entertaining a Second Appeal and the specific manner of its disposal. Section 100 CPC reads as follows:

"100. Second Appeal.-(1) Save as otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie to the High Court from every decree passed in appeal by any Court subordinate to the High Court, if the High Court is satisfied that the case involves a substantial question of law.

(2) ............................................ (3) In an appeal under this section, the memorandum of appeal shall precisely state the substantial question of law involved in the appeal.

(4) Where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question.

(5) The appeal shall be heard on the question so formulated and the respondent shall, at the hearing of the appeal, be allowed to argue that the case does not involve such question.

Section 103 CPC reads as under:

"103. Power of High Court to determine issue of fact.--In any second appeal, the High Court may, if the evidence on the record is sufficient, determine any issue necessary for the disposal of the appeal,--

(a) which has not been determined by the lower appellate court or both by the court of first instance and the lower appellate court, or

(b) which has been wrongly determined by such court or courts by reason of a decision on such question of law as is referred to in Section 100."

9. In Kondiba Dagadu Kadam v. Savitribai Sopan Gujar & Ors., AIR 1999 SC 2213, this Court held as under:- "It has to be kept in mind that the right of appeal is neither a natural nor an inherent right attached to the litigation. Being a substantive statutory right it has to be regulated in accordance with law in force at the relevant time. The conditions mentioned in the section must be strictly fulfilled before an appeal can be maintained and no Court has the power to add to or enlarge those grounds. The appeal cannot be decided on merit on merely equitable grounds."

10. Further, there can be no quarrel that the right of appeal/revision cannot be absolute and the legislature can impose conditions for maintaining the same. In Vijay Prakash D. Mehta & Jawahar D. Mehta v. Collector of Customs (Preventive), Bombay, AIR 1988 SC 2010, this Court held as under:-

"Right to appeal is neither an absolute right nor an ingredient of natural justice, the principles of which must be followed in all judicial or quasi- judicial adjudications. The right to appeal is a statutory right and it can be circumscribed by the conditions in the grant ..............The purpose of the Section is to act in terrorem to make the people comply with the provisions of law."

11. A similar view has been reiterated by this Court in Anant Mills Co. Ltd. v. State of Gujarat, AIR1975 SC 1234; and Shyam Kishore & Ors. v. Municipal Corporation of Delhi & Anr., AIR 1992 SC 2279. A Constitution Bench of this court in Nandlal & Anr. v. State of Haryana, AIR 1980 SC 2097, held that the "right of appeal is a creature of statute and there is no reason why the legislature, while granting the right, cannot impose conditions for the exercise of such right so long as the conditions are not so onerous as to amount to unreasonable restrictions rendering the right almost illusory".

12. In Gujarat Agro Industries Co. Ltd. v. Municipal Corporation of the City of Ahmedabad & Ors., (1999) 4 SCC 468, this Court held that the right of appeal though statutory, can be conditional/qualified and such a law cannot be held to be violative of Article 14 of the Constitution. An appeal cannot be filed unless so provided for under the statute and when a law authorises filing of an appeal, it can impose conditions as well.

13. Thus, it is evident from the above that the right to appeal is a creation of Statute and it cannot be created by acquiescence of the parties or by the order of the Court. Jurisdiction cannot be conferred by mere acceptance, acquiescence, consent or by any other means as it can be conferred only by the legislature and conferring a Court or Authority with jurisdiction, is a legislative function. Thus, being a substantive statutory right, it has to be regulated in accordance with the law in force, ensuring full compliance of the conditions mentioned in the provision that creates it. Therefore, the Court has no power to enlarge the scope of those grounds mentioned in the statutory provisions. A second appeal cannot be decided merely on equitable grounds as it lies only on a substantial question of law, which is something distinct from a substantial question of fact. The Court cannot entertain a second appeal unless a substantial question of law is involved, as the second appeal does not lie on the ground of erroneous findings of fact based on an appreciation of the relevant evidence. The existence of a substantial question of law is a condition precedent for entertaining the second appeal, on failure to do so, the judgment cannot be maintained. The existence of a substantial question of law is a sine-qua-non for the exercise of jurisdiction under the provisions of Section 100 C.P.C. It is the obligation on the Court to further the clear intent of the Legislature and not to frustrate it by ignoring the same. (Vide: Santosh Hazari v. Purshottam Tiwari (dead) by Lrs., AIR 2001 SC 965; Sarjas Rai & Ors. v. Bakshi Inderjeet Singh, (2005) 1 SCC 598; Manicka Poosali (Deceased by L.Rs.) & Ors. v. Anjalai Ammal & Anr., AIR 2005 SC 1777; Mst. Sugani v. Rameshwar Das & Anr., AIR 2006 SC 2172; Hero Vinoth (Minor) v. Seshammal, AIR 2006 SC 2234; P. Chandrasekharan & Ors. v. S. Kanakarajan & Ors., (2007) 5 SCC 669; Kashmir Singh v. Harnam Singh & Anr., AIR 2008 SC 1749; V. Ramaswamy v. Ramachandran & Anr., (2009) 14 SCC 216; and Bhag Singh v. Jaskirat Singh & Ors., (2010) 2 SCC 250).

14. In Mahindra & Mahindra Ltd. v. Union of India & Anr., AIR 1979 SC 798, this Court observed:

"..... It is not every question of law that could be permitted to be raised in the second appeal. The parameters within which a new legal plea could be permitted to be raised, are specifically stated in Sub-section (5) of Section 100. Under the proviso, the Court should be `satisfied' that the case involves a substantial question of law and not a mere question of law. The reason for permitting the substantial question of law to be raised, should be recorded by the Court. It is implicit therefrom that on compliance of the above, the opposite party should be afforded a fair or proper opportunity to meet the same. It is not any legal plea that would be alleged at a stage of second appeal. It should be a substantial question of law. The reasons for permitting the plea to be raised should also be recorded."

15. In Madamanchi Ramappa & Anr. v. Muthaluru Bojjappa, AIR 1963 SC 1633, this Court observed:

".........Therefore, whenever this Court is satisfied that in dealing with a second appeal, the High Court has, either unwittingly and in a casual manner, or deliberately as in this case, contravened the limits prescribed by Section 100, it becomes the duty of this Court to intervene and give effect to the said provisions. It may be that in some cases, the High Court dealing with the second appeal is inclined to take the view that what it regards to be justice or equity of the case has not been served by the findings of fact recorded by courts of fact; but on such occasions it is necessary to remember that what is administered in courts is justice according to law and considerations of fair play and equity however important they may be, must yield to clear and express provisions of the law. If in reaching its decisions in second appeals, the High Court contravenes the express provisions of Section 100, it would inevitably introduce in such decisions an element of disconcerting unpredictability which is usually associated with gambling; and that is a reproach which judicial process must constantly and scrupulously endeavour to avoid."

16. In Jai Singh v. Shakuntala, AIR 2002 SC 1428, this Court held as under:

"....it is only in very exceptional cases and on extreme perversity that the authority to examine the same in extenso stands permissible - it is a rarity rather than a regularity and thus it can be safely concluded that while there is no prohibition as such, but the power to scrutiny can only be had in very exceptional circumstances and upon proper circumspection."

17. While dealing with the issue, this Court in Leela Soni & Ors. v. Rajesh Goyal & Ors., (2001) 7 SCC 494, observed as under: "20. There can be no doubt that the jurisdiction of the High Court under Section 100 of the Code of Civil Procedure (CPC) is confined to the framing of substantial questions of law involved in the second appeal and to decide the same. Section 101 CPC provides that no second appeal shall lie except on the grounds mentioned in Section 100 CPC. Thus it is clear that no second appeal can be entertained by the High Court on questions of fact, much less can it interfere in the findings of fact recorded by the lower appellate court. This is so, not only when it is possible for the High Court to take a different view of the matter but also when the High Court finds that conclusions on questions of fact recorded by the first appellate court are erroneous.

21. It will be apt to refer to Section 103 CPC which enables the High Court to determine the issues of fact:

xx xx xx

22. The section, noted above, authorises the High Court to determine any issue which is necessary for the disposal of the second appeal provided the evidence on record is sufficient, in any of the following two situations: (1) when that issue has not been determined both by the trial court as well as the lower appellate court or by the lower appellate court; or (2) when both the trial court as well as the appellate court or the lower appellate court have wrongly determined any issue on a substantial question of law which can properly be the subject-matter of second appeal under Section 100 CPC."

18. In Jadu Gopal Chakravarty v. Pannalal Bhowmick & Ors., AIR 1978 SC 1329, the question arose as to whether the compromise decree had been obtained by fraud. This Court held that though it is a question of fact, but because none of the courts below had pointedly addressed the question of whether the compromise in the case was obtained by perpetrating fraud on the court, the High Court was justified in exercising its powers under Section 103 C.P.C. to go into the question. (See also Achintya Kumar Saha v. M/s Nanee Printers & Ors., AIR 2004 SC 1591)

19. In Shri Bhagwan Sharma v. Smt. Bani Ghosh, AIR 1993 SC 398, this Court held that in case the High Court exercises its jurisdiction under Section 103 C.P.C., in view of the fact that the findings of fact recorded by the courts below stood vitiated on account of non-consideration of additional evidence of a vital nature, the Court may itself finally decide the case in accordance with Section 103(b) C.P.C. and the Court must hear the parties fully with reference to the entire evidence on record with relevance to the question after giving notice to all the parties. The Court further held as under: ".....The grounds which may be available in support of a plea that the finding of fact by the court below is vitiated in law, does not by itself lead to the further conclusion that a contrary finding has to be finally arrived at on the disputed issue. On a re-appraisal of the entire evidence the ultimate conclusion may go in favour of either party and it cannot be pre-judged, as has been done in the impugned judgment..".

20. In Kulwant Kaur & Ors. v. Gurdial Singh Mann (dead) by LRs. & Ors., AIR 2001 SC 1273, this Court observed as under : "Admittedly, Section 100 has introduced a definite restriction on to the exercise of jurisdiction in a second appeal so far as the High Court is concerned. Needless to record that the Code of Civil Procedure (Amendment) Act, 1976 introduced such an embargo for such definite objectives and since we are not required to further probe on that score, we are not detailing out, but the fact remains that while it is true that in a second appeal a finding of fact, even if erroneous, will generally not be disturbed but where it is found that the findings stand vitiated on wrong test and on the basis of assumptions and conjectures and resultantly there is an element of perversity involved therein, the High Court in our view will be within its jurisdiction to deal with the issue. This is, however, only in the event such a fact is brought to light by the High Court explicitly and the judgment should also be categorical as to the issue of perversity vis-`-vis the concept of justice. Needless to say however, that perversity itself is a substantial question worth adjudication -- what is required is a categorical finding on the part of the High Court as to perversity.

The requirements stand specified in Section 103 and nothing short of it will bring it within the ambit of Section 100 since the issue of perversity will also come within the ambit of substantial question of law as noticed above. The legality of finding of fact cannot but be termed to be a question of law. We reiterate however, that there must be a definite finding to that effect in the judgment of the High Court so as to make it evident that Section 100 of the Code stands complied with." (Emphasis added)

21. Powers under Section 103 C.P.C. can be exercised by the High Court only if the core issue involved in the case is not decided by the trial court or the appellate court and the relevant material is available on record to adjudicate upon the said issue. (See: Haryana State Electronics Development Corporation Ltd. & Ors. v. Seema Sharma & Ors., (2009) 7 SCC 311)

22. Before powers under Section 103 C.P.C. can be exercised by the High Court in a second appeal, the following conditions must be fulfilled:

(i) Determination of an issue must be necessary for the disposal of appeal;

(ii) The evidence on record must be sufficient to decide such issue; and

(iii) (a) Such issue should not have been determined either by the trial court, or by the appellate court or by both; or

(b) such issue should have been wrongly determined either by trial court, or by the appellate court, or by both by reason of a decision on substantial question of law.

If the above conditions are not fulfilled, the High Court cannot exercise its powers under Section 103 CPC.

Thus, it is evident that Section 103 C.P.C. is not an exception to Section 100 C.P.C. nor is it meant to supplant it, rather it is to serve the same purpose. Even while pressing Section 103 C.P.C. in service, the High Court has to record a finding that it had to exercise such power, because it found that finding(s) of fact recorded by the court(s) below stood vitiated because of perversity. More so, such power can be exercised only in exceptional circumstances and with circumspection, where the core question involved in the case has not been decided by the court(s) below.

23. There is no prohibition on entertaining a second appeal even on a question of fact provided the Court is satisfied that the findings of fact recorded by the courts below stood vitiated by non-consideration of relevant evidence or by showing an erroneous approach to the matter i.e. that the findings of fact are found to be perverse. But the High Court cannot interfere with the concurrent findings of fact in a routine and casual manner by substituting its subjective satisfaction in place of that of the lower courts. (Vide: Jagdish Singh v. Natthu Singh, AIR 1992 SC 1604; Karnataka Board of Wakf v. Anjuman- E-Ismail Madris-Un-Niswan, AIR 1999 SC 3067; and Dinesh Kumar v. Yusuf Ali, AIR 2010 SC 2679).

24. If a finding of fact is arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant material or if the finding so outrageously defies logic as to suffer from the vice of irrationality incurring the blame of being perverse, then the finding is rendered infirm in the eyes of law. If the findings of the Court are based on no evidence or evidence which is thoroughly unreliable or evidence that suffers from the vice of procedural irregularity or the findings are such that no reasonable person would have arrived at those findings, then the findings may be said to be perverse. Further if the findings are either ipse dixit of the Court or based on conjecture and surmises, the judgment suffers from the additional infirmity of non-application of mind and thus, stands vitiated. (Vide: Bharatha Matha & Anr. v. R. Vijaya Renganathan & Ors., AIR 2010 SC 2685)

25. In view of above, the law on the issue can be summarised to the effect that a second appeal lies only on a substantial question of law and it is necessary to formulate a substantial question of law before the second appeal is decided.

The issue of perversity itself is a substantial question of law and, therefore, Section 103 C.P.C. can be held to be supplementary to Section 100 C.P.C., and does not supplant it altogether. Reading it otherwise, would render the provisions of Section 100 C.P.C. redundant. It is only an issue that involves a substantial question of law, that can be adjudicated upon by the High Court itself instead of remanding the case to the court below, provided there is sufficient evidence on record to adjudicate upon the said issue and other conditions mentioned therein stand fulfilled. Thus, the object of the Section is to avoid remand and adjudicate the issue if the finding(s) of fact recorded by the court(s) below are found to be perverse. The court is under an obligation to give notice to all the parties concerned for adjudication of the said issue and decide the same after giving them full opportunity of hearing.

Summary Suits under Order 37 & 'Written Contract" : The Law

Justice SN Kapoor
The Delhi High Court in Daya Chand Uttam Prakash Jain And Anr. vs Santosh Devi Sharma has held that a suit on the basis of a written acknowledgement of a pre-existing debt being a written contract could form a basis for recovery of an existing debt based on the said written contract in the shape of a written acknowledgement. While examining the provisions of Order 37 of the Code of Civil Procedure, the Court held as under;

(6) 6. Before proceeding further it would be relevant to reproduce Rule 1 of Order 37, Civil Procedure Code It reads as under:

"Subject to the provisions of Sub-section (1), the Order applies to the following classes of suits, namely :

(A)suits upon bills of exchange, Hundies and promissory notes;

(B)suits in which the plaintiff seeks only to recover a debt or liquidated demand in money payable by the defendant, with or without interest arising-

(I)on a written contract; or

(II)on an enactment, where the sum sought to be recovered is a fixed sum of money or in the nature of a debt other than a penalty; or

(III)on a guarantee, where the claim against the principal is in respect of a debt or liquidated demand only."

(7) In this light it is required to be seen whether the present suit relates to recovery of "Debt" arising out of a "written contract" or not?

(8) BLACK'S Law Dictionary (6th Ed.) defines "Debt" as under :

"A sum of money due by certain and express agreement. A specified sum of money owning to the person from another, including not only obligations of debtor to pay but right of creditor to receive and enforce payment". State v. Ducey, 25 Ohio App. 2d 50, 266 N.E. 2d. 233, 235. Liability on a claim. Bankruptcy Code $ 101.

A fixed and certain obligation to pay money or some other valuable thing or things, either in the present or in the future. In a still more general sense, that which is due from one person to another, whether money, goods or services."

(9) In Food Corporation of India v. Bal Kishan Garg, a Division Bench of this Court considered the requisites of debt in connection with the suit for recovery of the price of goods. It was held to be maintainable under Order 37, Civil Procedure Code by treating the unpaid price as debt. In regard to "Debt" following observations of the Division Bench of this Court in para 7 are relevant here

"7.What there is a debt? Relying in Webb. v. Stenton, (1883) 11 Qbd 518 it was held in Commissioner of Wealth Tax v. Pierce Leslie & Co. Ltd., , that the essential requisites of a debt are, (1) an ascertained or readily calculable amount; (2) an absolute unqualified and present liability in regard to the amount with the obligation to pay forthwith or in future within a time certain; (3) the obligation must have accrued and be subsisting and should not be that which is merely accruing. A contingent liability or a contingency debt is, therefore, neither a liability nor a debt. A debt is a 'debitum in prasent, solvendum in future. We, therefore, hold, that the amount covered by the suit is an ascertained amount payable liability. The obligation has accrued and subsists. It is a debt accruing under a written contract".

(10) The term "written contract" in the words of Black's Law Dictionary (6th Ed.) means as under :

"A."written contract" is one in which all its terms is in writing". Commonly referred to as a formal contract."

11.1.According to Black's Law Dictionary an "acknowledgement" means as under:

"To "acknowledge" is to admit, affirm, declare, testify, avow, confess or own as genuine, Favello v. Bank of America Nat. Trus & Savings Ass'n, 24CalApp. 2d 342, 74 P. 2d 1057m 1058. Admission or affirmation of obligation or responsibility. Weyerhaeuser Timber Co. v. Marshall, C.C.A. Wash., 102 F.2d 78,81. (sic.) states have adopted the Uniform Acknowledgement Act.

The debtor's acknowledgement of the creditor's debt and or right of action that will revive the enforceability of a debt barred by the statute of limitations. Part payment of obligation which tolls statute of limitations is a form of "acknowledgement of debt". In re: Badger's Estate, 156 Kan. 734. 137 P. 2nd 198,205."

11.2.According to stroud's Judicial dictionary acknowledgement means as under:

(1),"an acknowledgement, in writing of a debt......so as to take such debt out of the Limitation Act.....(1) must admit that debt is due, and (2) promise, or justify the inference of promise, of payment unconditionally, or (if conditionally) it must be shown that the condition has been accomplished.... A statement in a balance sheet presented to a creditor-shareholder of a Company and signed by the Directors or their agents is sufficient acknowledgement (Jones v. Bellgrove Properties, (1949) 2 K.B. 700), and an acknowledgement is within the section if it indicates that a debt is due, even if it does not state the amount (Dungate v. Dungate, (1965) 1 W.L.R. 1577). But a signature on a balance sheet, notwithstanding that the debt appeared therein, was held not to be a sufficient acknowledgement (Consolidated Agencies v. Bertram, (1965) A.C. 470. An acknowledgement by one of the several executors suffices (Re Macdonald [1897] 2 Ch. 181, distinguishing Tullick v. Dunn, Ry. & Moo. 416, and Scholey v. Walton, 13 L.J. Ex. 122; see Astbury v. Astbury, infra). "Acknowledges the claim" (Section 23(4) means "acknowledges the debt or other liquidated pecuniary amounts" (Good v. Parry, [1963] 2 W.L.R. 846). "Acknowledgement" (Section 24(1) means acknowledgement of liability.... -. "

(2)"An acknowledgement of a Deed, or Speciality, by writing or part payment or part satisfaction (Civil Procedure Act, 1833 (c. 42), Section 5 will suffice if it contains a clear admission of the speciality debt (see Moodie v. Bannister, 28 L.J. Ch. 881; Howcutt v. Bonser, 3Ex. 499; Forsyth v. Bristowe, 8 Ex. 721, [See also Read v. Price (1909) 1 K.B. 7; affirmed (1909) 2 K.B. 724, cited Party Liable, where it was held that parole evidence is admissible to prove the contents of a written acknowledgement which has been lost; see now Limitation Act, 1939, Sections 23,24. As to acknowledgement is writing within Civil Procedure Code, 1908, Section 5 see Viscount Burnham v. Atlantic & Pacific fibre Importing & Manufacturing Co. Ltd., 44 T.L.R. 702.

11.3.In Elvira Rodrigues v. Godnicalo Hypolito Constancio, Air 1934 Privy Council 144, it was observed a? under :

"Their Lordships think that what has been forgotten is that there are two forms of account stated. An account stated may only take the form of a mere acknowledgement of a debt, and in those circumstances, though it is quite true it amounts to a promise and the existence of a debt may be inferred, that can be rebutted, and it may very well turn out that there in no real debt at all, and in those circumstances there would be no consideration and no binding promise.

But on the other hand, there is another form of account stated which is a very (stc.) form as between merchants in business in which the account stated is an account which contains entries on both sides, and in which the parties who have stated the account between them have agreed that the items on one side should be set against the items upon the other side and the balance only should be paid; the items on the smaller side are set off and deemed to be paid by the items on a larger side, and there is a promise for good consideration to pay the balance arising from the fact that the items have been so set off and paid in the way described."

Their Lordships were further of the view that :

"That was done. The man writes an account which was demanded by the servant for the express purpose of knowing what sum he would be entitled to get and which, it seems to their Lordships, was stated by the Managing Partner of the business, for the sole purpose of enabling the servant to know what his final remuneration was to be. To make quite clear that it was intended to express something in the nature of an obligation he authenticated the document and that can be the only effect of that particular part of the transaction - by writing his signature over two 10 cent stamps.

In their Lordships' view, that was a plain case of a promise made to pay the balance for a good consideration. One cannot help thinking that if an account stated in those circumstances did not give rise in Kenya to the promise to pay, and for a good consideration, Kenya would be certainly without one of the most ordinary business facilities which has been common to everybody who carries on business under any system which incorporates any of the ordinary principles of English contract law."

11.4 In Gharabharan v. Sri Radha Kishan & Ors., a Division Bench of the Allahabad High Court about 'account' stated as under:

"(12).....Where the accounts contain a series of cross-entries, one evidencing payment of loans advanced at various times by the creditor and the other evidencing payment of amounts paid towards the same loans at various times by the debtor, and the parties agree to set one series of entries against the other & after doing the same, finally arrive at an agreed balance, the final settlement of accounts thus made constitutes an "account stated."

That fact that both the entries relate to the same transaction of loan does not take the transaction out of the category of "account stated", nor does it make the transaction a unilateral one. Such a transaction is really a bilateral one as both the parties have met together and after mutual accounting in respect of the advances made by the one and payments made by the other have finally agreed by a joint application of their minds to treat a certain specific figure as the amount due on that date. Both the parties participating in this transaction have combined in finally adjusting their rights.

They have jointly co-operated in wiping off their previous or antecedent rights and liabilities and substituting therefor a new or a fresh right and liability. The procedure of surrender and discharge involved in such a transaction for the purpose of arriving at an agreed settlement is truly a bilateral one. The process of "give and take" which such a transaction demands from either side, itself constitute a sufficient consideration which is enough to sustain the fresh agreement as valid in law.

Reference in this connection might be made to the case of Bishnu Chand v. Girdhari Lal in which their Lordships of the Privy Council have expounded the law in this regard. Then such an "account stated" is signed by the party sought to be made liable or its duly authorised agent, the "account stated" as envisaged in Art. 64 is created. Such an "account stated" gives rise to a new cause of action and a suit brought within three years of the date of such a cause of action is not barred by limitation. Such a suit cannot be thrown out on the ground that some of the items antecedent to the date of the "account stated" were barred by limitation.

Previous rights and liabilities having been swept away by the concerted and agreed Will and action of parties themselves, the previous items which formed the material for arriving at the agreed figure must, for the purposes of the suit, be eliminated from consideration, and a fresh cause of action be deemed to be born on the date on which such a transaction is entered into. In such a situation, it is not open to the Court to reopen the closed transaction and to scrutinize the antecedent entries for the purpose of applying the bar of limitation. Such a procedure would be the very negation of the real purpose of "account stated" and would constitute a violation of fundamental principles underlying the legal doctrine of "account stated".

In the present case, there is also no manner of doubt that this "account stated" was signed by a partner of the firm. Every partner of a firm has in law an inherent right to do it, and must, therefore, be presumed to act as such."

11.5.In Shapoor Freedom Mazda v. Durga Prasaal Chamaria, it was observed that :

"15.In construing this letter it would be necessary to bear in mind the general tenor of the letter considered as a whole. It is obvious that respondent 2 was requesting respondent I to avoid the sale as he did on an earlier occasion in November, 1931. The previous incident shows that when the property was put to sale by the first mortgagee the mortgagor rushed to the second mortgage to stop the sale, and this obviously was with a view to persuade the second mortgage to prevent the sale which would otherwise affect his own interest as such mortgagee. The theory that the letter refers to the interest of respondent 1 as an intending lessee or purchaser is far fetched, if not absolutely fantastic. Negotiations in that behalf had been unsuccessful in 1926 and for nearly five years thereafter nothing was heard about the said proposal. In the context it seems to us impossible to escape the conclusion that the interest mentioned in the letter is the interest of respondent I as a puisne mortgagee and when the said letter appeals to him to take up the whole it can mean nothing other than the whole of the mortgagee's interest including the interest of the prior mortgagee. An appeal to respondent 1 to stop the sale on payment of Rs. 10,000.00 as he infact had stopped a similar sale in November 1931, is an appeal to ensure his own interest in the security which should be kept intact and that can be achieved only if the threatened sale is averted. We have carefully considered the arguments urged before us by the learned Attorney- General but we see no reason to differ from the conclusion reached by the Court of Appeal below that this letter amounts to an acknowledgement. The tenor of the letter shows that it is addressed by respondent 2 as mortgagor to respondent 1 as puisne mortgagee, it reminds him of his interest as such mortgagee in the property which would be put up for sale by the first mortgagee, and appeals to him to assist the avoidance of sale, and thus acquire the whole of the mortgagee's interest.it is common ground that no other relationship existed between the parties at the date of this letter, and the only subsisting relationship was that of mortgagee and mortgagor. This letter acknowledges the existence of the said jural relationship and amounts to a clear acknowledgement under Section 19 of the Limitation Act. It is conceded that if this letter is held to be an acknowledgement there can be no other challenge against the decree under uppeal."

11.6.In Hiralal & Ors. v. Badkulal & Ors, it is true to find that "Defendant H who was in mutual understanding with the plaintiff signed an entry in the plaintiff's Khata on which earlier mutual account had been entered to the following effect : "Rs. 34.000.00 balance due to be received upto Bhadon Sudi 11 Sam. 2000 made by check and understanding to accounts with H's books. The acknowledgement was signed by H with the following endorsement. After adjusting the accounts Rs. 34,000.00 found correct and payable. The plaintiff brought a suit on the basis of the entry for recovery of the amount. The Supreme Court observed in para 11 as under :

"11.Mr. Bindra next urged that the plaintiff 's suit should have been dismissed because it could not be maintained merely on the basis of an acknowledgement of liability, tha such an acknowledgement could only save limitation but could not furnish a cause of action on which a suit could be maintained. The Judicial Commissioner took the view that an unqualified acknowledgement like the one in the suit, and the statement of the account under which the entry had been made, were sufficient to furnish a cause of action to the plaintiffs for maintaining the present suit. We are satisfied that no exception can be taken to this conclusion. It was held by the Privy Council in Maniram v. Seth Rupchand, 33 Ind. App. 165 (P.C.) (C) that an unconditional acknowledgement implies a promise to pay because that is the natural inference if nothing is said to the contrary. It is what every honest man would mean to do. In Fateh Mahomed v. Ganga Singh, Air 1920 Lah. 264 (D), the same view was taken. It was held that a suit on the basis of a balance was competent.In Kahanchand Dularam v. Dayaram Amritlal, Air 1929 Lah. 263 (E), the same view was expressed and it was observed that the three expressions "balance due", "account adjusted" and "balance struck" must mean that the parties had been through the account. The defendant, there accepted the statement of account contained in the plaintiff's account book, and made it his own by signing it and it thus amounted to an "accounts stated between them" in the language of Art. 64,LimitationAct. The same happened in the preset case. The acknowledgement which forms the basis of the suit was made in the ledger of the plaintiffs in which earlier mutual accounts had been entered and truly speaking, the suit was not based merely on this acknowledgment but was based on the mutual dealings and the accounts stated between them and was thus clearly maintainable."

12.1. ln Mrs. Sushila Mehta v. Shri Bansi Lal Arora & Anr., Ilr (1982) I Delhi 320,the plaintiff paid the allocation money of Rs. 1,00,000.00 for allotment of shares. The defendants accepted the payment as allocation money. The payment, its acceptance and the receipt thereof issued by the defendants held to constitute a written contract for the purposes of Order 37 Rule 1. It was observed that though it may be labelled as receipt but that does not meant that it is not a contract. In paras 10 & 11 it was further observed as under :

"10.The question is whether the receipt dated 26th August, 1978 is a "written contract" or not. In my opinion it clearly is. The plaintiff paid the application money of allotment for shares. The defendants accepted it, though it is true that defendant No. 2 came into existence a few months later. The payment of Rs. 1,00,000.00 by the plaintiff as application money and its acceptance by the defendants constitutes a contract. It may be labelled as a receipt but that does not mean that it is not a contract.

11.It was said that it has not been pleaded that the suit is based on a written contract. This is not required by any provision of law. The Court has to find out whether the suit has been brought upon a negotiable instrument or a written contract or an enactment should guarantee to which Order 37, Civil Procedure Code applies. The acknowledgement of Rs. 1,00,000.00 by the defendants for the purposes allotment of shares as application money therefor clearly amounts to a contract. Because it is their own case that the plaintiff paid allotment of shares and they accepted it. There was "consensus of mind". And "consensus of mind" leads to a contract, as Lord Cairns said. (Cundy v. Lindsay, (1878) 3 App. Case 459 (2) at p. 465). There was promise. There was consideration. There was acceptance. All the elements essential for the formation of the contract are present. What more is needed to make a contract. It was not a nudum pactum."

A suit under Order 37 Rule 1, Civil Procedure Code was filed by the plaintiff alleging that the plaintiff paid Rs. 1,00,000.00 to defendant No. 1 as application money for shares in a proposed private limited company. Receipt of the amount was not disputed by the defendants but Rs. 20,500.00 was stated to have been transferred to some. other account on instructions of the plaintiff. The defendant applied for leave to defendant under Order 37 Rules 3 & 5, Civil Procedure Code alleging that the suit was not maintainable under Order 37 as the same has not been instituted on the basis of Negotiable Instruments Act or a written contract. In this regard the above Paras 10 & 11 of the judgment are worth reading.

12.2.An incidental question is "Whether such an agreement should be signed by both the parties?" It is not necessary that written agreement should be signed by both the parties. If any authority is needed one may refer to Jugal Kishore v. Goolba Hormusji (S), . In this case Venkatarama Ayyar, J. observed as under:

"7.But it is settled law that to constitute an arbitration agreement in writing it is not necessary that it should be signed by the parties, and it is sufficient if the terms are reduced to writing and the agreement of the parties thereto is established".

In Sushila Mehta (supra) receipt which was taken to be written contract was not signed by both the parties. It was signed by defendant No. 1 Bansi Lal Arora only.

12.3.In this regard one may also refer to Seth Banarsi Das v. Cane Commissioner, . In the construction of a written document, it is legitimate in order to ascertain their true meaning if that be doubtful, to have regard to the circumstances surrounding the creation of the subject matter to which it was designed and intended that it should apply. It must be seen what is the intention expressed by the words used; but whether the language is imperfect, and it is impossible to know what the intention is without enquiring further, the circumstances with reference to which the words were used should be looked. The contract must be construed as a whole and the intent of the parties must be ascertained from the documents as a whole.

12.4.In Jiwibai v. Rarnkunwar Shriniwas Murarka Agarwala, Air (34) 1947 Nagpur 17, a Full Bench of the Nagpur High Court took the view that the express authority given to the agent to 'compromise' under Mukhtarnama included the power to refer the suit to arbitration because the deed set out in separate phrases the two aspects of 'compromise' which the single English word normally connoted. It may further be added that document embodying a business agreement should be construed formally and broadly and there must in such documents imply a term which will give such business efficacy to the transaction as must have been intended by the parties. One cannot add to a contract an implied term inconsistent with or which contradicts express terms of the contract. But in a suitable case one may imply a term if it is necessary to give it a business efficacy (see Gulabchand Gambhirmal v. Kudilal Govindram & Anr., [Full Bench], Cholldhri Gulabchand Jain v. Bhama, ).

(13) A Single Bench of this Court in J.S. Sood (supra) took the following view in para 12 p. 724 :

"12.As to whether the written contract may be signed by both the parties does not call for decision in the present case though it appears that the words "written contract" envisage some sort of a formal document between the contracting parties. I would rather think that it would be a condition precedent that there should be a formal agreement executed by the parties and signed by them. Plaintiffs own version is that it was a verbal contract and the document on the basis of which the suit has been filed merely acknowledges the money due under the aforesaid verbal contract. Such a writing may at best be a written acknowledgement which extends the period of limitation under Section 18 of the Limitation Act, 1963, but no more. Thus, I do not think that such a document would fall within the definition of written contract and the provision of Order xxxvii would not apply. It must, therefore, be held that the present suit is not maintainable under the summary procedure prescribed under Order XXXVII."

Thursday, January 27, 2011

Statement of Accused u/s 313 Cr PC is Not 'Evidence' : Delhi High Court

Justice S.N. Dhingra
Justice S.N. Dhingra of the Delhi High Court has held in V.S. Yadav v. Reena that the statement of accused under Section 281 Cr. P.C. or under Section 313 Cr. P.C. is not the evidence of the accused and it cannot be read as part of evidence. It was further held that where the accused does not examine himself as a witness, his statement under Section 281 Cr. P.C. or 313 Cr. P.C. cannot be read as evidence of the accused and it has to be looked into only as an explanation of the incriminating circumstance and not as evidence. The relevant extracts of the said judgment is reproduced hereinbelow;


4. It must be remembered that reasoning for appreciating evidence does not mean that reasoning bereft of logic. Reasoning also does not mean mis-reasoning. All reasoning must stand the test of basic logic of a judicial mind showing that the judge had knowledge of law and had appreciated facts in the light of law. Section 6 of N.I. Act defines Cheque as under: 

“A ''cheque" is a bill of exchange drawn on a specified banker and not expressed to be payable otherwise than on demand and it includes the electronic image of a truncated cheque and a cheque in the electronic form” 

A bare definition of cheque shows that cheque is a Bill of Exchange drawn on specified banker and is an order by drawer on his own agent i.e. bank for payment of certain sum of money to the bearer or the order to person in whose favour cheque is drawn. This order of payment by person to the holder of cheque is not made in casual manner just for the sake of fun. This order is made for consideration and that is why Section 139 of the N.I. Act provides that the holder of a cheque is presumed to have received the cheque in discharge of whole or in part of a debt or liability. It was sufficient for complainant to prove the debt and liability by making a statement that the cheques were issued by the respondent for payment of debt. Merely because the complainant did not remember the exact date and stated that the loan was taken from him about a week before 23rd /24th June, 2006, would not throw doubt on the testimony of the complainant, more so, when the complainant specifically testified that the accused and her husband were having business in the name of S.K. Enterprises, situated at RZ-133/213 and he was approached for a friendly loan by the accused/respondent through her husband. The cross examination of this witness further shows that it was in the knowledge of accused that the complainant used to grant loan to persons and the accused himself cited 3 or 4 examples where the complainant had given loans to the persons. In fact, cross examination of complainant proved unequivocally that the appellant/complainant had advanced loan to respondent also. Whether the complainant was having a license for giving loans or not, was not the subject matter of the inquiry before the learned MM as it was not the defence of the respondent that loan was advanced without license. 

5. It must be borne in mind that the statement of accused under Section 281 Cr. P.C. or under Section 313 Cr. P.C. is not the evidence of the accused and it cannot be read as part of evidence. The accused has an option to examine himself as a witness. Where the accused does not examine himself as a witness, his statement under Section 281 Cr. P.C. or 313 Cr. P.C. cannot be read as evidence of the accused and it has to be looked into only as an explanation of the incriminating circumstance and not as evidence. There is no presumption of law that explanation given by the accused was truthful. In the present case, the accused in his statement stated that he had given cheques as security. If the accused wanted to prove this, he was supposed to appear in the witness box and testify and get himself subjected to cross examination. His explanation that he had the cheques as security for taking loan from the complainant but no loan was given should not have been considered by the Trial Court as his evidence and this was liable to be rejected since the accused did not appear in the witness box to dispel the presumption that the cheques were issued as security. Mere suggestion to the witness that cheques were issued as security or mere explanation given in the statement of accused under Section 281 Cr. P.C., that the cheques were issued as security, does not amount to proof. Moreover, the Trial Court seemed to be obsessed with idea of proof beyond reasonable doubt forgetting that offence under Section 138 of N.I. Act was a technical offence and the complainant is only supposed to prove that the cheques issued by the respondent were dishonoured, his statement that cheques were issued against liability or debt is sufficient proof of the debt or liability and the onus shifts to the respondent/ accused to show the circumstances under which the cheques came to be issued and this could be proved by the respondent only by way of evidence and not by leading no evidence. 

6. The respondent in this case took the stand that he had replied to the notice but surprisingly he had not placed on record the copy of his reply. If it is believed that he had sent reply to the notice of the complainant, the copy of that reply must have been retained and could have been easily placed on record and proved by the respondent. Not placing the copy of reply on record and not proving it, in fact, prove the assertion made by the complainant that instead of sending reply, blank sheets of paper were sent in envelope to the complainant. 

7. The respondent has placed reliance on Krishna Janardhan Bhat v. Dattatraya G. Hegde, 2008 Crl. L.J. 1172, which is also the case relied upon by the Trial Court. In this judgment itself Hon’ble Supreme Court has specifically observed that Court should not be blind to the ground realities and the rebuttal of presumption under Section 139 of N.I. Act would largely depend upon the factual matrix of each case. The Trial Court in this case turned a blind eye to the fact that every accused facing trial, whether under Section 138 of N.I. Act or under any penal law, when charged with the offence, pleads not guilty and takes a stand that he has not committed the offence. Even in the cases where loan is taken from a bank and the cheques issued to the bank stand dishonoured, the stand taken is same. Mere pleading not guilty and stating that the cheques were issued as security, would not give amount to rebutting the presumption raised under Section 139 of N.I. Act. If mere statement under Section 313 Cr. P.C. or under Section 281 Cr. P.C. of accused of pleading not guilty was sufficient to rebut the entire evidence produced by the complainant/ prosecution, then every accused has to be acquitted. But, it is not the law. In order to rebut the presumption under Section 139 of N.I. Act, the accused, by cogent evidence, has to prove the circumstance under which cheques were issued. It was for the accused to prove if no loan was taken why he did not write a letter to the complainant for return of the cheque. Unless the accused had proved that he acted like a normal businessman/prudent person entering into a contract he could not have rebutted the presumption u/s 139 N.I. Act. If no loan was given, but cheques were retained, he immediately would have protested and asked the cheques to be returned and if still cheques were not returned, he would have served a notice as complainant. Nothing was proved in this case.

Compounding Cheque Bounce Case After Conviction - Permissibility : The Law

Justice Altamas Kabir
The Supreme Court in K.M. Ibrahim Vs. K.P. Mohammed has examined whether the Court has the power of compounding an offence under S. 138 of the Negotiable Instruments Act, after the accused has been convicted. While considering various pronouncements on the issue the Supreme Court held as under;

7. Appearing for the appellant, Mr. Mukul Rohtagi, learned Senior Advocate, contended that since a specific power had been given to the parties to a proceeding under the Negotiable Instruments Act under Section 147 to compound the offence, there could be no reason as to why the same cannot be permitted even after conviction, which had been affirmed upto the High Court. It was urged that in order to facilitate settlement of disputes, the legislature thought it fit to insert Section 147 by Amending Act 55 of 2002. Such amendment came into effect from 6th February, 2003, and provided that notwithstanding anything contained in the Code of Criminal Procedure, 1973, every offence punishable under the Act would be compoundable. Mr. Rohtagi urged that in view of the non-obstante clause, the provisions of Section 147 were given an overriding effect over the Code and in view of the clear mandate given to the parties to compound an offence under the Act, reference to Section 320 Cr.P.C. can be made for purposes of comparison only in order to understand the scope of Section 147 of the Negotiable Instruments Act. Mr. Rohtagi submitted that the said position had been accepted by this Court in various decisions, such as in the case of O.P. Dholakia vs. State of Haryana & Anr. [(2000) 1 SCC 762], wherein it was held that since the petitioner had already entered into a compromise with the complainant and the complainant had appeared through counsel and stated that the entire money had been received by him and he had no objection if the conviction already recorded under Section 138 of the Negotiable Instruments Act is set aside, the Hon'ble Judges thought it appropriate to grant permission, in the peculiar facts and circumstances of the case, to compound the offence. While doing so, this Court also indicated that necessarily the conviction and sentence under Section 138 of the Act stood annulled. 

7A. The said view has been consistently followed in the case of 

(1) Anil Kumar Haritwal & Anr. vs. Alka Gupta & Anr. [(2004) 4 SCC 366]; 

(2) B.C. Seshadri vs. B.N. Suryanarayana Rao [2004 (11) SCC 510] decided by a three Judge Bench; 

(3) G. Sivarajan vs. Little Flower Kuries & Enterprises Ltd. & Anr. [(2004 11 SCC 400]; 

(4) Kishore Kumar vs. J.K. Corporation Ltd. [(2004 13 SCC 494]; 

(5) Sailesh Shyam Parsekar vs. Baban [(2005 (4) SCC 162]; 

(6) K. Gyansagar vs. Ganesh Gupta & Anr. [(2005) 7 SCC 54]; 

(7) K.J.B.L. Rama Reddy vs. Annapurna Seeds & Anr. [(2005) 10 SCC 632]; 

(8) Sayeed Ishaque Menon vs. Ansari Naseer Ahmed [(2005) 12 SCC 140]; 

(9) Vinay Devanna Nayak vs. Ryot Sewa Sahakari Bank Ltd. [(2008) 2 SCC 305], wherein some of the earlier decisions have been noticed; and 

(10) Sudheer Kumar vs. Manakkandi M.K. Kunhiraman & Anr. [2008 (1) KLJ 203], which was a decision of a Division Bench of the Kerala High Court, wherein also the issue has been gone into in great detail. 

8. The golden thread in all these decisions is that once a person is allowed to compound a case as provided for under Section 147 of the Negotiable Instruments Act, the conviction under Section 138 of the said Act should also be set aside. In the case of Vinay Devanna Nayak (supra), the issue was raised and after taking note of the provisions of Section 320 Cr.P.C., this Court held that since the matter had been compromised between the parties and payments had been made in full and final settlement of the dues of the Bank, the appeal deserved to be allowed and the appellant was entitled to acquittal. Consequently, the order of conviction and sentence recorded by all the courts were set aside and the appellant was acquitted of the charge leveled against him. 

9. The object of Section 320 Cr.P.C., which would not in the strict sense of the term apply to a proceeding under the Negotiable Instruments Act, 1881, gives the parties to the proceedings an opportunity to compound offences mentioned in the table contained in the said section, with or without the leave of the court, and also vests the court with jurisdiction to allow such compromise. By virtue of Sub-Section (8), the Legislature has taken one step further in vesting jurisdiction in the Court to also acquit the accused/convict of the offence on the same being allowed to be compounded. Inasmuch as, it is with a similar object in mind that Section 147 has been inserted into the Negotiable Instruments Act, 1881, by amendment, an analogy may be drawn as to the intention of the Legislature as expressed in Section 320(8) Cr.P.C., although, the same has not been expressly mentioned in the amended section to a proceeding under Section 147 of the aforesaid Act. 

10. Apart from the above, this Court is further empowered under Article 142 of the Constitution to pass appropriate orders in line with Sub-Section (8) of Section 320 Cr.P.C. in an application under Section 147 of the aforesaid Act, in order to do justice to the parties. 

11. As far as the non-obstante clause included in Section 147 of the 1881 Act is concerned, the 1881 Act being a special statute, the provisions of Section 147 will have an overriding effect over the provisions of the Code relating to compounding of offences. The various decisions cited by Mr. Rohtagi on this issue does not add to the above position. 

12. It is true that the application under Section 147 of the Negotiable Instruments Act was made by the parties after the proceedings had been concluded before the Appellate Forum. However, Section 147 of the aforesaid Act does not bar the parties from compounding an offence under Section 138 even at the appellate stage of the proceedings. Accordingly, we find no reason to reject the application under Section 147 of the aforesaid Act even in a proceeding under Article 136 of the Constitution.

Compensation for Acquisition under the Land Acquisition Act : The Law

Justice Raveendran
The Supreme Court in Anjani Molu Dessai Vs. State of Goa has examined the legal position with regard to the payment of compensation for acquisition of land under the Land Acquisition Act. One of the main grievance raised by owners of such lands, is that the compesation provided is a meagre amount as compared to the real market price. The Supreme Court has examined the aforesaid legal proposition and held as under;

13. The legal position is that even where there are several exemplars with reference to similar lands, usually the highest of the exemplars, which is a bona fide transaction, will be considered. Where however there are several sales of similar lands whose prices range in a narrow bandwidth, the average thereof can be taken, as representing the market price. But where the values disclosed in respect of two sales are markedly different, it can only lead to an inference that they are with reference to dissimilar lands or that the lower value sale is on account of under-valuation or other price depressing reasons. Consequently averaging can not be resorted to. We may refer to two decisions of this Court in this behalf. 

13.1 In Sri Rani M. Vijayalakshmanna Rao Bahadur, Ranee of Vuyyur Vs. The Collector of Madras, 1969 (1) MLJ 45, a three Judge Bench of this Court observed that the proper method for evaluation of market value is by taking the highest of the exemplars and not by averaging of different types of sale transactions. This Court held: 

"It seems to us that there is substance in the first contention of Mr. Ram Reddy. After all, when the land is being compulsorily taken away from a person, he is entitled to say that he should be given the highest value which similar land in the locality is shown to have fetched in a bona fide transaction entered into between a willing purchaser and a willing seller near about the time of the acquisition. It is not disputed that the transaction represented by Exhibit R-19 was a few months prior to the notification under section 4, that it was a bona fide transaction and that it was entered into between a willing purchaser and a willing seller. The land comprised in the sale deed is 11 grounds and was sold at Rs.1,961 per ground. The land covered by Exhibit-27 was also sold before the notification, but after the land comprised in Exhibit R-19 was sold. It is true that this land was sold at Rs.1,096/- per ground. This, however, is apparently because of two circumstances. One is that betterment levy at Rs.500 per ground had to be paid by the vendee and the other that the land comprised in it is very much more extensive, that is about 93 grounds or so. Whatever that may be, it seems to us to be only fair that where sale deed, pertaining to different transactions are relied on behalf of the Government, that representing the highest value should be preferred to the rest unless there are strong circumstances justifying a different course. In any case we see no reason why an average of two sale deeds should have been taken in this case." 

13.2 In State of Punjab Vs. Hans Raj (1994) 5 SCC 734, this court held: 

"Having given our anxious consideration to the respective contentions, we are of the considered view that the learned single Judge of the High Court committed a grave error in working out average price paid under the sale transactions to determine the market value of the acquired land on that basis. As the method of averaging the prices fetched by sales of different lands of different kinds at different times, for fixing the market value of the acquired land, if followed, could bring about a figure of price which may not at all be regarded as the price to be fetched by sale of acquired land. One should not have, ordinarily recourse to such method. It is well settled that genuine and bona fide sale transactions in respect of the land under acquisition or in its absence the bona fide sale transactions proximate to the point of acquisition of the lands situated in the neighbourhood of the acquired lands possessing similar value or utility taken place between a willing vendee and the willing vendor which could be expected to reflect the true value, as agreed between reasonable prudent persons acting in the normal market conditions are the real basis to determine the market value."

Wednesday, January 26, 2011

Exemption from Personal Appearance of Accused : The Law

Justice D.K. Jain
The Supreme Court, in a recent decision in TGN Kumar vs State Of Kerala & Ors., has examined the provisions of Section 205 of the Code of Criminal Procedure, relating to the dispensation of personal appearance of an accused before a Criminal Court. The Supreme Court held as under;

"One of the questions which arises for consideration in this special leave petition is as to whether the High court in exercise of its jurisdiction under Sections 482 and 483 of the Code of the Criminal Procedure and/or under Article 227 of the Constitution of India could issue guidelines directing all courts taking cognizance of offences under section 138 of the Negotiable Instruments Act inter alia to invoke the discretion under Section 205 of the Code of Criminal Procedure and only with a further direction that summons under Section 205 shall be issued at the first instance. Keeping in view importance of the question involved as also the various decisions of this Court upon which the learned Judge of the High Court has placed reliance, in our opinion, we think that this is a matter which should be heard by a larger Bench. It is directed accordingly." This is how the present appeal has been placed before this Bench.

5. Having heard learned counsel for the parties, we are convinced that impugned order is unsustainable.

6. Section 205 of the Code, which clothes the Magistrate with the to dispense with the personal appearance of the accused, reads as follows:

"205. Magistrate may dispense with personal attendance of accused.--(1) Whenever a Magistrate issues a summons, he may, if he sees reason so to do, dispense with the personal attendance of' the accused and permit him to appear by his pleader.

(2) But the Magistrate inquiring into or trying the case may, in his discretion, at any stage of' the proceedings, direct the personal attendance of the accused, and, if necessary, enforce such attendance in the manner hereinbefore provided."

7. The Section confers a discretion on the court to exempt an accused personal appearance till such time his appearance is considered by court to be not necessary during the trial. It is manifest from a reading of the provision that while considering an application Section 205 of the Code, the Magistrate has to bear in mind the nature the case as also the conduct of the person summoned. He shall whether any useful purpose would be served by requiring the attendance of the accused or whether the progress of the trial is likely to be hampered on account of his absence. (See: S.V. Muzumdar & Ors. Vs. Gujarat State Fertilizer Co. Ltd. & Anr.) . Therefore, the satisfaction whether or not an accused deserves to be exempted from personal attendance has to be of the Magistrate, who is the master of the court in so far as the progress of the trial is concerned and none else.

8. In Bhaskar Industries Ltd. (supra), this Court had laid down the following guidelines, which are to be borne in mind while dealing with an application seeking dispensation with the personal appearance of an accused in a case under Section 138 of the N.I. Act:

"19. ...it is within the powers of a Magistrate and in his judicial discretion to dispense with the personal appearance of an accused either throughout or at any particular stage of such proceedings in a summons case, if the Magistrate finds that insistence of his personal presence would itself inflict enormous suffering or tribulations on him, and the comparative advantage would be less. Such discretion need be exercised only in rare instances where due to the far distance at which the accused resides or carries on business or on account of any physical or other good reasons the Magistrate feels that dispensing with the personal attendance of the accused would only be in the interests of justice. However, the Magistrate who grants such benefit to the accused must take the precautions enumerated above, as a matter of course."

We respectfully concur with the above guidelines and while re-affirming the same, we would add that the order of the Magistrate should be such which does not result in unnecessary harassment to the accused and at the same time does not cause any prejudice to the complainant. The Court must ensure that the exemption from personal appearance granted to an accused is not abused to delay the trial.

9. In light of the afore-extracted legal principles, the impugned order is clearly erroneous in as much as the discretion of the Magistrate under Section 205 of the Code cannot be circumscribed by laying down any general directions in that behalf. In Manoj Narain Agrawal Vs. Shashi Agrawal & Ors., this Court, while observing that the High Court cannot lay down directions for the exercise of discretion by the Magistrate under Section 205 of the Code, had echoed the following views:

"Similarly, the High Court should not have, for all intent and purport, issued the direction for grant of exemption from personal appearance. Such a matter undoubtedly shall be left for the consideration before the learned Magistrate. We are sure that the Magistrate would exercise his jurisdiction in a fair and judicious manner."

10. It is equally trite that the inherent powers of the High Court under Section 482 of the Code have to be exercised sparingly with circumspection, and in rare cases to correct patent illegalities or to prevent miscarriage of justice. In Madhu Limaye Vs. The State of Maharashtra, a Bench of three learned Judges of this Court had observed that:

"...the following principles may be noticed in relation to the exercise of the inherent power of the High Court....: -

(1) That the power is not to be resorted to if there is a specific provision in the Code for the redress of the grievance of the aggrieved party;

(2) That it should be exercised very sparingly to prevent abuse of process of any Court or otherwise to secure the ends of justice;

(3) That it should not be exercised as against the express bar of law engrafted in any other provision of the Code."

11. Similarly, while it is true that the power of superintendence conferred on the High Court under Article 227 of the Constitution of India is both administrative and judicial, but such power is to be exercised sparingly and only in appropriate cases in order to keep the subordinate courts within the bounds of their authority. In any event, the power of superintendence cannot be exercised to influence the subordinate judiciary to pass any order or judgment in a particular manner. In Jasbir Singh Vs. State of Punjab, this Court observed that:

"So, even while invoking the provisions of Article 227 of the Constitution, it is provided that the High Court would exercise such powers most sparingly and only in appropriate cases in order to keep the subordinate courts within the bounds of their authority. The power of superintendence exercised over the subordinate courts and tribunals does not imply that the High Court can intervene in the judicial functions of the lower judiciary. The independence of the subordinate courts in the discharge of their judicial functions is of paramount importance, just as the independence of the superior courts in the discharge of their judicial functions. It is the members of the subordinate judiciary who directly interact with the parties in the course of proceedings of the case and therefore, it is no less important that their independence should be protected effectively to the satisfaction of the litigants." (See also: Trimbak Gangadhar Telang & Anr. Vs. Ramchandra Ganesh Bhide & Ors.; Mohd. Yunus Vs. Mohd. Mustaqim & Ors. and State, New Delhi Vs. Navjot Sandhu & Ors.)

12. As regards direction (iv) supra to accept and consider the written statement made by the accused, in our opinion, it is again not in accord with the language of Section 313 of the Code as also the dictum laid down by this Court in Basavaraj R. Patil & Ors. Vs. State of Karnataka & Ors. Section 313 of the Code deals with the personal examination of the accused, and provides that:

"313. Power to examine the accused.--(1) In every inquiry or trial, for the purpose of enabling the accused personally to explain any circumstances appearing in the evidence against him, the Court--

(a) may at any stage, without previously warning the accused, put such questions to him as the Court considers necessary;

(b) shall, after the witnesses for the prosecution have been examined and before he is called on for his defence, question him generally on the case:

Provided that in a summons-case, where the Court has dispensed with the personal attendance of the accused, it may also dispense with his examination under clause (b). ............................................................................" (emphasis supplied by us)

13.On the plain language of Section 313, it is evident that in a summons case, when the personal appearance of the accused has been dispensed with under Section 205 of the Code, a discretion is vested in the Magistrate to dispense with the rigour of personal examination of the accused under Section 313 of the Code as well.

14. In Basavaraj R. Patil & Ors. (supra) while advocating a pragmatic and humanistic approach in less serious offences, Thomas, J. speaking for the majority in a Bench of three learned Judges, explained the scope of clause (b) to Section 313(1) of the Code as follows :

"The word "shall" in clause (b) to Section 313(1) of the Code is to be interpreted as obligatory on the court and it should be complied with when it is for the benefit of the accused. But if it works to his great prejudice and disadvantage the court should, in appropriate cases, e.g., if the accused satisfies the court that he is unable to reach the venue of the court, except by bearing huge expenditure or that he is unable to travel the long journey due to physical incapacity or some such other hardship, relieve him of such hardship and at the same time adopt a measure to comply with the requirements in Section 313 of the Code in a substantial manner. How could this be achieved?

If the accused (who is already exempted from personally appearing in the court) makes an application to the court praying that he may be allowed to answer the questions without making his physical presence in court on account of justifying exigency the court can pass appropriate orders thereon, provided such application is accompanied by an affidavit sworn to by the accused himself containing the following matters:

(a) A narration of facts to satisfy the court of his real difficulties to be physically present in court for giving such answers.

(b) An assurance that no prejudice would be caused to him, in any manner, by dispensing with his personal presence during such questioning.

(c) An undertaking that he would not raise any grievance on that score at any stage of the case."

15. It is manifest from the afore-extracted passage that dispensation with the personal examination of an accused in terms of the said provision is within the trial court's discretion, to be exercised keeping in view certain parameters, enumerated therein and not as a matter of course.

16. It is true that in direction (vii) supra, the learned Judge has clarified that the stipulations in the preceding paragraphs are not intended to fetter the discretion of the court to follow any different procedure, if there be compelling need but the requirement of recording `specific reasons' by the Magistrate for deviating from the directions given in the order, as stipulated in the same paragraph, in our view, is by itself tantamount to putting fetters on the jurisdiction of the Magistrate. This is not warranted in law.
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