In the present case, the accused has taken the defence plea of
suicide pact even in the trial court while being questioned under
Section 313 Cr.P.C. The defence version is probabilized by the above
facts and circumstances of the case. The death of deceased was not
premeditated and the act of the accused causing death of Nathi, in our
view, appears to be in furtherance of the understanding between them to
commit suicide and the consent of the deceased and the act of the accused
falls under Exception 5 of Section 300 IPC. Since the accused
intentionally caused the death; the appellant is found guilty under
Section 304 Part I IPC. The appellant is stated to be in custody for more
than 10 years.
18. In the light of the foregoing discussion, the conviction of the
appellant under Section 302 IPC is modified and the appellant is
convicted under Section 304 Part I IPC and sentenced to undergo
imprisonment for the period already undergone by him and the appeal is
allowed in part. The sentence of imprisonment for conviction under
Section 309 IPC is ordered to run concurrently. The appellant is in jail,
and he be released forthwith if not required in any other case.

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Non-Reportable

IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1902 OF 2014
(Arising out of SLP (Crl.) No. 1800 of 2014)

NARENDRA ….Appellant

Versus

STATE OF RAJASTHAN … Respondent

J U D G M E N T

R. BANUMATHI, J.
Delay condoned. Leave granted.
2. This appeal is directed against the judgment dated 9.11.2011
passed by the Jodhpur Bench of Rajasthan High Court in D.B. Crl. Appeal No.
950/2004 by which the High Court has confirmed conviction of the appellant
under Sections 302 and 309 IPC and the sentence imposed upon him.
3. Briefly stated, the case of the prosecution is that Nathi,
sister of PW-3 Naresh Salvi, got married to Magan Salvi. About two years
prior to the incident, due to differences with her husband, Nathi left her
matrimonial house and she was residing at her parents’ house, Mauza Basti,
District Udaipur. While staying at her parents’ house, Mauza Basti, Nathi
developed intimacy with Narendra- the accused. About three months prior to
the incident, Nathi and the accused eloped and returned to the village
after 10-15 days. On 19.03.2003, the parents of the deceased and the
complainant went for work. PW-3 was also not at home and he was
participating in some events pertaining to Holi festival and Nathi was all
alone at home. At about 2.30 p.m., on returning home, PW-3 found the main
gate closed, and despite calling, the gate was not opened from inside.
Thereafter PW-3 entered into the interior open floor of the house through
the outer wall, wherefrom he saw Nathi and Narendra standing in a room
with closed door. From the peep-hole of the door, PW-3 saw the accused
with a sword in his hand and the accused inflicted sword blows on the
deceased and caused stab injuries on the chest and the abdomen. On hearing
the alarm raised by PW-3, neighbours Kalu Lal and Shankar Lal and others
came to the place of occurrence and the door of the room was opened. Nathi
was found on the floor with stab injuries bleeding all over and accused
was also found having stab wounds in his abdomen.
4. On oral information given by PW 1- Shankar Lal, Sarpanch Kishan
Singh had telephoned to police and FIR was registered against the accused.
PW 7 – Dr. M.L. Purbia conducted autopsy on the body of the deceased Nathi
and opined that the cause of death was due to shock and excessive bleeding
in the chest. PW-7 examined the injuries on the person of accused and
issued Exhibit P-12 Injury Certificate. After completion of investigation
the accused was challaned for the offences punishable under Sections 302
and 309 IPC.
5. To bring home the guilt of the accused, prosecution examined
PWs -1 to 17 and exhibited documents and material objects. The accused was
questioned under Section 313 Cr.P.C about the incriminating evidence and
circumstances. The accused stated that he is innocent and he had not
committed the offence. The accused further stated that himself and Nathi
were in love which was not accepted by the villagers and hence they tried
to commit suicide in which he survived and the deceased Nathi died.
6. The trial court, on consideration of evidence, convicted the
appellant under Section 302 IPC and sentenced him to undergo imprisonment
for life and imposed a fine of Rs.2,000/-, in default of payment of fine to
further undergo three months simple imprisonment. The trial court also
convicted the appellant under Section 309 IPC and sentenced him to undergo
simple imprisonment for six months and a fine of Rs.500/- was imposed and
both the sentences were ordered to run concurrently. On appeal, the High
Court confirmed the conviction and sentence imposed on the appellant under
Sections 302 and 309 IPC. Being aggrieved, the appellant has preferred
this appeal.
7. The learned counsel for the appellant contended that as per the
evidence of PW 3, the appellant and the deceased Nathi were in the closed
room and PW 3 could not have viewed the occurrence inside the room and the
site sketch does not make a mention about the peep-hole of the door and
while so, the courts erred in placing reliance upon the evidence of PW-3 to
convict the accused. It was contended that the accused and the deceased
were in deep love and both belonged to the same caste and the villagers
were not ready to accept the relationship of the accused and deceased and,
therefore, both of them tried to commit suicide and only on the consent of
the deceased, the accused inflicted injuries on the deceased and the
offence committed by the accused attracts Exception 5 of Section 300 IPC
punishable under Section 304 Part I IPC.
8. The learned counsel for the State took us through the evidence
of PW 3 and submitted that PW 3 being reliable witness, based on his
evidence, the courts below rightly held the appellant guilty of the
offence. The learned counsel contended that the stab injuries inflicted in
the chest and the abdomen of the deceased clearly show that the accused
intentionally inflicted the injuries to cause death of the deceased and the
courts rightly disbelieved the defence version and convicted the appellant.
9. We have carefully considered the submissions of the learned
counsel appearing for the parties. The explanation of the accused whether
he acted in furtherance of the suicide pact and whether the homicide falls
under Exception 5 of Section 300 IPC and whether the conviction of the
appellant is to be modified under Section 304 Part I IPC are the points
falling for our consideration.
10. The essential facts are not in dispute. That deceased Nathi
after leaving her matrimonial house, while she was residing at her
maternal home, she has developed love and intense relationship with the
accused Narendra. There is adequate evidence which clearly show the love
affair between the deceased and the accused. Since the deceased and the
accused were of the same gotra, their relationship was not accepted by the
villagers. PW-3 admits that Nathi and accused were in love and that
Nathi and the accused eloped and lived together for about 10-15 days. A
panchayat was convened after Nathi returned home. In his evidence PW 3
stated that Nathi having left her previous husband, wanted to marry the
accused; but to Gotra of both being one the marriage could not be
held. As their desire of marriage was not accepted by the villagers,
perhaps accused and the deceased were dejected.
11. In the incident, the accused had inflicted injuries with
the sword on the chest and the abdomen and from Ex.P.13-post mortem
report, it is seen that the deceased had sustained the following injuries:
“External Injuries:
(1) Stab wound with one end (edge) is sharp and other is rounded 4.5 cm.
X 2cm. X intra thorax deep on left breast in 5 the inter coastal space
going obliquely postero medially piercing right ventricle of heart of apex.
(2) Stab wound 4.5 x 2cm. x intra abdominal Horizontal – on Supra pubic
region 6cm. below umbilicus in mid low piercing peritoneum and intestine
one and is sharp.
(3) Stab wound 4.5 cm x 2cm x abdominal deep on right side abdomen 6 cm
lateral to umbilicus piece of intestine come out.
(4) Incised wound 6cm x 3cm x bone deep on middle 1/3 of left forearm,
muscles and blood vessels cut down.
(5) Incised wound 3.5cm x 2cm x muscles deep x 3cm proximal to 4th
injury.
(6) Incised wound 2.5cm x 0.2cm x skin deep right elbow.
Bruise 5 cm. x 4cm on right hand posteriorly.”

PW-7 Dr. M.L. Purbia opined that the death was due to shock and haemorrhage
and injury No.1 was sufficient to cause the death.
12. The accused also had the following stab injuries.
“1. Stab wound- 2cm x 1cm. x intra abdominal deep- near umbilicus –
reserved sharp.
2. Stab wound- 1.5cm x 1 cm x deep intra abdominal- on umbilicus 1 cm
away from injury No.1- reverse sharp.
3. Stab wound- 2 cm. x 1 cm x intra abdominal – near umbilicus 1.5 cm
below injury No.2 -reverse sharp.”

The accused self inflicted the above injuries and tried to commit suicide.

13. The trial court and the High Court recorded concurrent findings
that the accused caused the death of Nathi and he also attempted to commit
suicide and the said findings are unassailable. While explaining the
circumstances in which he caused the death of the deceased, the appellant
stated that he and deceased, Nathi were in love and they also solemnized
their marriage and since the appellant and deceased belonged to the same
sub-caste, the villagers had objections for their relationship and
therefore both himself and Nathi tried to commit suicide. The defence
version is that acting on the consent of Nathi, appellant inflicted
sword injuries on Nathi and Nathi died but before however the appellant
could kill himself, there was intervention and therefore he could not kill
himself and the act of the accused causing death of Nathi falls under
Exception 5 of Section 300 IPC punishable under Section 304 Part I IPC.
Reliance is placed upon the circumstance that the accused had also
sustained stab injuries.
14. The High Court disbelieved the defence version by saying that
to bring the accused within the four corners of Exception 5 of Section
300 IPC, there must be cogent evidence to show that the deceased had given
such consent and there is no material on record to establish such free and
voluntary consent of the deceased for her death. The High Court also
observed that there was no evidence to show that the deceased was
experiencing intolerable mental sufferings with no prospect of improvement
and that she took the decision that death was the only resort.
15. Under Exception 5 to Section 300 IPC “culpable homicide is not
murder when the person whose death is caused, being above the age of
18 years, suffers death or takes the risk of death with his own consent.”
To attract Exception 5 to Section 300 IPC, there must have been free and
voluntary consent of the deceased person. The onus of proving consent of
the deceased person is on the accused. Exception 5 of Section 300 IPC
must receive a strict and not a liberal interpretation. In applying the
said Exception, the act alleged to be consented to or authorized by the
victim must be considered by a close scrutiny. The court must in each case
consider the evidence and the surrounding circumstances while considering
the question of consent.
16. In the present case, in our view, there are formidable
circumstances discernible from the evidence which probablise the defence
version which are as under:
(a) Deceased Nathi and the accused were in love and they were
intending to get married. Since they belonged to the same gotra, their
relationship was not accepted by the villagers and they objected to the
same;
(b) About three months prior to the incident, Nathi and accused
left the village and lived together for about 10-15 days and thereafter
Nathi returned to her matrimonial house;
(c) On 19.3.2003, the parents of the deceased went for work and PW-3 was
also engaged in some events pertaining to Holi festival and Nathi was
alone in the house;
(d) When the accused came to the house of the deceased, he was not
armed; he had taken the sword from inside the room of the house;

(e) PW-3, nowhere stated that at the time of the incident his sister
quarrelled with the accused. When the accused inflicted sword blows,
deceased Nathi had not raised any alarm nor shouted for help;
(f) the accused was also having the stab injuries on his person.
17. In the present case, the accused has taken the defence plea of
suicide pact even in the trial court while being questioned under
Section 313 Cr.P.C. The defence version is probabilized by the above
facts and circumstances of the case. The death of deceased was not
premeditated and the act of the accused causing death of Nathi, in our
view, appears to be in furtherance of the understanding between them to
commit suicide and the consent of the deceased and the act of the accused
falls under Exception 5 of Section 300 IPC. Since the accused
intentionally caused the death; the appellant is found guilty under
Section 304 Part I IPC. The appellant is stated to be in custody for more
than 10 years.
18. In the light of the foregoing discussion, the conviction of the
appellant under Section 302 IPC is modified and the appellant is
convicted under Section 304 Part I IPC and sentenced to undergo
imprisonment for the period already undergone by him and the appeal is
allowed in part. The sentence of imprisonment for conviction under
Section 309 IPC is ordered to run concurrently. The appellant is in jail,
and he be released forthwith if not required in any other case.

………………………….J
(T.S. Thakur)
………………………….J
(R. Banumathi)

New Delhi;
September 2, 2014

———————–
12

 

(i) An offence under Section 138 of the Negotiable Instruments Act, 1881
is committed no sooner a cheque drawn by the accused on an account being
maintained by him in a bank for discharge of debt/liability is returned
unpaid for insufficiency of funds or for the reason that the amount exceeds
the arrangement made with the bank.
(ii) Cognizance of any such offence is however forbidden under Section 142
of the Act except upon a complaint in writing made by the payee or holder
of the cheque in due course within a period of one month from the date the
cause of action accrues to such payee or holder under clause (c) of proviso
to Section 138.
(iii) The cause of action to file a complaint accrues to a
complainant/payee/holder of a cheque in due course if
(a) the dishonoured cheque is presented to the drawee bank within a
period of six months from the date of its issue.

(b) If the complainant has demanded payment of cheque amount within thirty
days of receipt of information by him from the bank regarding the dishonour
of the cheque and

(c) If the drawer has failed to pay the cheque amount within fifteen days
of receipt of such notice.

(iv) The facts constituting cause of action do not constitute the
ingredients of the offence under Section 138 of the Act.
(v) The proviso to Section 138 simply postpones/defers institution of
criminal proceedings and taking of cognizance by the Court till such time
cause of action in terms of clause (c) of proviso accrues to the
complainant.
(vi) Once the cause of action accrues to the complainant, the jurisdiction
of the Court to try the case will be determined by reference to the place
where the cheque is dishonoured.
(vii) The general rule stipulated under Section 177 of Cr.P.C applies to
cases under Section 138 of the Negotiable Instruments Act. Prosecution in
such cases can, therefore, be launched against the drawer of the cheque
only before the Court within whose jurisdiction the dishonour takes place
except in situations where the offence of dishonour of the cheque
punishable under Section 138 is committed along with other offences in a
single transaction within the meaning of Section 220(1) read with Section
184 of the Code of Criminal Procedure or is covered by the provisions of
Section 182(1) read with Sections 184 and 220 thereof.

 

———————————————————————————————————————————————————————-

REPORTABLE

IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 2287 OF 2009

Dashrath Rupsingh Rathod …..Appellant

Versus

State of Maharashtra & Anr. …..Respondents

W I T H

CRIMINAL APPEAL NO. 1593 OF 2014
[Arising out of S.L.P.(Crl.)No.2077 of 2009];
CRIMINAL APPEAL NO. 1594 OF 2014
[Arising out of S.L.P.(Crl.)No.2112 of 2009];
CRIMINAL APPEAL NO. 1595 OF 2014
[Arising out of S.L.P.(Crl.)No.2117 of 2009];
CRIMINAL APPEAL NOS. 1596-1600 OF 2014
[Arising out of S.L.P.(Crl.)Nos.1308-1312 of 2009];
CRIMINAL APPEAL NO.1601 OF 2014
[Arising out of S.L.P.(Crl.)No.3762 of 2012];
CRIMINAL APPEAL NO. 1602 OF 2014
[Arising out of S.L.P.(Crl.)No.3943 of 2012];
CRIMINAL APPEAL NO.1603 OF 2014
[Arising out of S.L.P.(Crl.)No.3944 of 2012]; AND
CRIMINAL APPEAL NO. 1604 OF 2014
[Arising out of S.L.P.(Crl.)No.59 of 2013].

J U D G M E N T

VIKRAMAJIT SEN, J.

Leave granted in Special Leave Petitions. These Appeals raise a legal
nodus of substantial public importance pertaining to Court’s territorial
jurisdiction concerning criminal complaints filed under Chapter XVII of the
Negotiable Instruments Act, 1881 (for short, ‘the NI Act’). This is amply
adumbrated by the Orders dated 3.11.2009 in I.A.No.1 in CC 15974/2009 of
the three-Judge Bench presided over by the then Hon’ble the Chief Justice
of India, Hon’ble Mr. Justice V.S. Sirpurkar and Hon’ble Mr. Justice P.
Sathasivam which SLP is also concerned with the interpretation of Section
138 of the NI Act, and wherein the Bench after issuing notice on the
petition directed that it be posted before the three-Judge Bench.
PRECEDENTS
The earliest and the most often quoted decision of this Court relevant to
the present conundrum is K. Bhaskaran v. Sankaran Vaidhyan Balan (1999) 7
SCC 510 wherein a two-Judge Bench has, inter alia, interpreted Section 138
of the NI Act to indicate that, “the offence under Section 138 can be
completed only with the concatenation of a number of acts. Following are
the acts which are components of the said offence: (1) Drawing of the
cheque, (2) Presentation of the cheque to the bank, (3) Returning the
cheque unpaid by the drawee bank, (4) Giving notice in writing to the
drawer of the cheque demanding payment of the cheque amount, (5) Failure of
the drawer to make payment within 15 days of the receipt of the notice.”
The provisions of Sections 177 to 179 of the Code of Criminal Procedure,
1973 (for short, ‘CrPC’) have also been dealt with in detail. Furthermore,
Bhaskaran in terms draws a distinction between ‘giving of notice’ and
‘receiving of notice’. This is for the reason that clause (b) of proviso
to Section 138 of the NI Act postulates a demand being made by the payee or
the holder in due course of the dishonoured cheque by giving a notice in
writing to the drawer thereof. While doing so, the question of the receipt
of the notice has also been cogitated upon.
The issuance and the receipt of the notice is significant because in a
subsequent judgment of a Coordinate Bench, namely, Harman Electronics Pvt.
Ltd. v. National Panasonic India Pvt. Ltd. (2009) 1 SCC 720 emphasis has
been laid on the receipt of the notice, inter alia, holding that the cause
of action cannot arise by any act of omission or commission on the part of
the ‘accused’, which on a holistic reading has to be read as ‘complainant’.
It appears that Harman transacted business out of Chandigarh only, where
the Complainant also maintained an office, although its Head Office was in
Delhi. Harman issued the cheque to the Complainant at Chandigarh; Harman
had its bank account in Chandigarh alone. It is unclear where the
Complainant presented the cheque for encashment but it issued the Section
138 notice from Delhi. In those circumstances, this Court had observed
that the only question for consideration was “whether sending of notice
from Delhi itself would give rise to a cause of action for taking
cognizance under the NI Act.” It then went on to opine that the proviso to
this Section “imposes certain further conditions which are required to be
fulfilled before cognizance of the offence can be taken.” We respectfully
agree with this statement of law and underscore that in criminal
jurisprudence there is a discernibly demarcated difference between the
commission of an offence and its cognizance leading to prosecution. The
Harman approach is significant and sounds a discordant note to the
Bhaskaran ratio. Harman also highlights the reality that Section 138 of
the NI Act is being rampantly misused so far as territorial jurisdiction
for trial of the Complaint is concerned. With the passage of time equities
have therefore transferred from one end of the pendulum to the other. It
is now not uncommon for the Courts to encounter the issuance of a notice in
compliance with clause (b) of the proviso to Section 138 of the NI Act from
a situs which bears no connection with the Accused or with any facet of the
transaction between the parties, leave aside the place where the dishonour
of the cheque has taken place. This is also the position as regards the
presentation of the cheque, dishonour of which is then pleaded as the
territorial platform of the Complaint under Section 138 of the NI Act.
Harman, in fact, duly heeds the absurd and stressful situation, fast
becoming common-place where several cheques signed by the same drawer are
presented for encashment and requisite notices of demand are also
despatched from different places. It appears to us that justifiably so at
that time, the conclusion in Bhaskaran was influenced in large measure by
curial compassion towards the unpaid payee/holder, whereas with the passage
of two decades the manipulative abuse of territorial jurisdiction has
become a recurring and piquant factor. The liberal approach preferred in
Bhaskaran now calls for a stricter interpretation of the statute, precisely
because of its misemployment so far as choice of place of suing is
concerned. These are the circumstances which have propelled us to minutely
consider the decisions rendered by two-Judge Benches of this Court.
It is noteworthy that the interpretation to be imparted to Section 138 of
the NI Act also arose before a three-Judge Bench in Shri Ishar Alloy Steels
Ltd. v. Jayaswals Neco Ltd. (2001) 3 SCC 609 close on the heels of
Bhaskaran. So far as the factual matrix is concerned, the dishonoured
cheque had been presented for encashment by the Complainant/holder in his
bank within the statutory period of six months but by the time it reached
the drawer’s bank the aforementioned period of limitation had expired. The
question before the Court was whether the bank within the postulation of
Section 138 read with Sections 3 and 72 of the NI Act was the drawee bank
or the collecting bank and this Court held that it was the former. It was
observed that “non-presentation of the cheque to the drawee bank within the
period specified in the Section would absolve the person issuing the cheque
of his criminal liability under Section 138 of the NI Act, who otherwise
may be liable to pay the cheque amount to the payee in a civil action
initiated under the law. A combined reading of Sections 3, 72 and 138 of
the NI Act would leave no doubt in our mind that the law mandates the
cheque to be presented at the bank on which it is drawn if the drawer is to
be held criminally liable.” Clearly, and in our considered opinion
rightly, the Section had been rendered ‘accused-centric’. This decision
clarifies that the place where a complainant may present the cheque for
encashment would not confer or create territorial jurisdiction, and in this
respect runs counter to the essence of Bhaskaran which paradoxically, in
our opinion, makes actions of the Complainant an integral nay nuclear
constituent of the crime itself.
The principle of precedence should promptly and precisely be paraphrased.
A co-ordinate Bench is bound to follow the previously published view; it is
certainly competent to add to the precedent to make it logically and
dialectically compelling. However, once a decision of a larger Bench has
been delivered it is that decision which mandatorily has to be applied;
whereas a Co-ordinate Bench, in the event that it finds itself unable to
agree with an existing ratio, is competent to recommend the precedent for
reconsideration by referring the case to the Chief Justice for constitution
of a larger Bench. Indubitably, there are a number of decisions by two-
Judge Benches on Section 138 of the NI Act, the majority of which apply
Bhaskaran without noting or distinguishing on facts Ishar Alloy. In our
opinion, it is imperative for the Court to diligently distill and then
apply the ratio of a decision; and the view of a larger Bench ought not to
be disregarded. Inasmuch as the three-Judge Bench in Ishar Alloy has
categorically stated that for criminal liability to be attracted, the
subject cheque has to be presented to the bank on which it is drawn within
the prescribed period, Bhaskaran has been significantly whittled down if
not overruled. Bhaskaran has also been drastically diluted by Harman
inasmuch as it has given primacy to the service of a notice on the Accused
instead of its mere issuance by the Complainant.
In Prem Chand Vijay Kumar v. Yashpal Singh (2005) 4 SCC 417, another two-
Judge Bench held that upon a notice under Section 138 of the NI Act being
issued, a subsequent presentation of a cheque and its dishonour would not
create another ‘cause of action’ which could set the Section 138 machinery
in motion. In that view, if the period of limitation had run out, a fresh
notice of demand was bereft of any legal efficacy. SIL Import, USA v. Exim
Aides Silk Exporters (1999) 4 SCC 567 was applied in which the
determination was that since the requisite notice had been despatched by
FAX on 26.6.1996 the limitation for filing the Section 138 Complaint
expired on 26.7.1996. What is interesting is the observation that “four
constituents of Section 138 are required to be proved to successfully
prosecute the drawer of an offence under Section 138 of the NI Act”
(emphasis supplied). It is also noteworthy that instead of the five
Bhaskaran concomitants, only four have been spelt out in the subsequent
judgment in Prem Chand. The commission of a crime was distinguished from
its prosecution which, in our considered opinion, is the correct
interpretation of the law. In other words, the four or five concomitants
of the Section have to be in existence for the initiation as well as the
successful prosecution of the offence, which offence however comes into
existence as soon as subject cheque is dishonoured by the drawee bank.
Another two-Judge Bench in Shamshad Begum v. B. Mohammed (2008) 13 SCC 77
speaking through Pasayat J this time around applied Bhaskaran and concluded
that since the Section 138 notice was issued from and replied to Mangalore,
Courts in that city possessed territorial jurisdiction. As already noted
above, this view is not reconcilable with the later decision of Harman.
The two-Judge Bench decision in Mosaraf Hossain Khan v. Bhagheeratha Engg.
Ltd. (2006) 3 SCC 658 requires to be discussed in some detail. A Complaint
under Section 138 of the NI Act was filed and cognizance was taken by the
Chief Judicial Magistrate, Birbhum at Suri, West Bengal for the dishonour
of a number of cheques issued by the accused-company which had its
headquarters in Ernakulam, Kerala where significantly the accused-company’s
bank on whom the dishonoured cheques had been drawn was located. Several
judgments were referred to, but not Bhaskaran. The third ingredient in
Bhaskaran, i.e. the returning of the cheque unpaid by the drawee bank, was
not reflected upon. Inasmuch as Mosaraf Hossain refers copiously to the
cause of action having arisen in West Bengal without adverting at all to
Bhaskaran, leave aside the three-Judge Bench decision in Ishar Alloy, the
decision may be seen as per incuriam. Moreover, the concept of forum non
conveniens has no role to play under Section 138 of the NI Act, and
furthermore that it can certainly be contended by the accused-company that
it was justifiable/convenient for it to initiate litigation in Ernakulam.
If Bhaskaran was followed, Courts in Ernakulam unquestionably possessed
territorial jurisdiction. It is, however, important to italicize that
there was an unequivocal endorsement of the Bench of a previously expressed
view that, “where the territorial jurisdiction is concerned the main factor
to be considered is the place where the alleged offence was committed”. In
similar vein, this Court has opined in Om Hemrajani v. State of U.P. (2005)
1 SCC 617, in the context of Sections 177 to 180 CrPC that “for
jurisdiction emphasis is on the place where the offence is committed.”
The territorial jurisdiction conundrum which, candidly is currently in the
cauldron owing to varying if not conflicting ratios, has been cogitated
upon very recently by a two-Judge Bench in Criminal Appeal No.808 of 2013
titled Nishant Aggarwal v. Kailash Kumar Sharma decided on 1.7.2013 and
again by the same Bench in Criminal Appeal No.1457 of 2013 titled Escorts
Limited v. Rama Mukherjee decided on 17.09.2013. Bhaskaran was followed
and Ishar Alloy and Harman were explained. In Nishant the Appellant issued
a post-dated cheque drawn on Standard Chartered Bank, Guwahati in favour of
complainant-respondent. It appears that the Appellant had endeavoured to
create a case or rather a defence by reporting to his bank in Guwahati as
well as to the local police station that ‘one cheque (corresponding to the
cheque in question) was missing and hence payment should be stopped.’ The
Respondent-drawer was a resident of District Bhiwani, Haryana; he presented
the cheque for encashment at Canara Bank, Bhiwani but it was returned
unpaid. The holder then issued a legal notice which failed to elicit the
demanded sum of money corresponding to the cheque value, and thereupon
followed it by the filing of a criminal complaint under Sections 138 and
141 of the NI Act at Bhiwani. The Judicial Magistrate, Bhiwani, vide order
dated 5.3.2011, concluded that the court in Bhiwani did not possess
territorial jurisdiction and he accordingly returned the complaint for
presentation before the proper Court. The five concomitants of Section 138
extracted in Bhaskaran, were reiterated and various paragraphs from it were
reproduced by this Court. Nishant also did not follow Ishar Alloy which,
as already analysed, has concluded that the second Bhaskaran concomitant,
namely, presentation of cheque to the bank refers to the drawee bank and
not the holder’s bank, is not primarily relevant for the determination of
territorial jurisdiction. Nishant distinguished Ishar Alloy on the
predication that the question of territorial jurisdiction had not been
raised in that case. It is axiomatic that when a Court interprets any
statutory provision, its opinion must apply to and be determinate in all
factual and legal permutations and situations. We think that the dictum in
Ishar Alloy is very relevant and conclusive to the discussion in hand. It
also justifies emphasis that Ishar Alloy is the only case before us which
was decided by a three-Judge Bench and, therefore, was binding on all
smaller Benches. We ingeminate that it is the drawee Bank and not the
Complainant’s Bank which is postulated in the so-called second constituent
of Section 138 of the NI Act, and it is this postulate that spurs us
towards the conclusion that we have arrived at in the present Appeals.
There is also a discussion of Harman to reiterate that the offence under
Section 138 is complete only when the five factors are present. It is our
considered view, which we shall expound upon, that the offence in the
contemplation of Section 138 of the NI Act is the dishonour of the cheque
alone, and it is the concatenation of the five concomitants of that Section
that enable the prosecution of the offence in contradistinction to the
completion/commission of the offence.
We have also painstakingly perused Escorts Limited which was also decided
by the Nishant two-Judge Bench. Previous decisions were considered,
eventually leading to the conclusion that since the concerned cheque had
been presented for encashment at New Delhi, its Metropolitan Magistrate
possessed territorial jurisdiction to entertain and decide the subject
Complaint under Section 138 of the NI Act. Importantly, in a subsequent
order, in FIL Industries Ltd. v. Imtiyaz Ahmed Bhat passed on 12th August
2013, it was decided that the place from where the statutory notice had
emanated would not of its own have the consequence of vesting jurisdiction
upon that place. Accordingly, it bears repetition that the ratio in
Bhaskaran has been drastically diluted in that the situs of the notice, one
of the so-called five ingredients of Section 138, has now been held not to
clothe that Court with territorial competency. The conflicting or
incongruent opinions need to be resolved.

JUDICIAL APPROACH ON JURISDICTION
We shall take a short digression in terms of brief discussion of the
approach preferred by this Court in the context of Section 20 of the Code
of Civil Procedure, 1908 (hereinafter referred to as, ‘CPC’), which inter
alia, enjoins that a suit must be instituted in a court within the local
limits of whose jurisdiction the Defendant actually and voluntarily
resides, or carries on business, or personally works for gain, or where the
cause of action wholly or in part arises. The Explanation to that Section
is important; it prescribes that a corporation shall be deemed to carry on
business at its sole or principal office, or, in respect of any cause of
action arising at any place where it has also a subordinate office, at such
place. Since this provision primarily keeps the Defendant in perspective,
the corporation spoken of in the Explanation, obviously refers to the
Defendant. A plain reading of Section 20 of the CPC arguably allows the
Plaintiff a multitude of choices in regard to where it may institute its
lis, suit or action. Corporations and partnership firms, and even sole
proprietorship concerns, could well be transacting business simultaneously
in several cities. If sub-sections (a) and (b) of Section 20 are to be
interpreted disjunctively from sub-section (c), as the use of the word ‘or’
appears to permit the Plaintiff to file the suit at any of the places where
the cause of action may have arisen regardless of whether the Defendant has
even a subordinate office at that place. However, if the Defendants’
location is to form the fulcrum of jurisdiction, and it has an office also
at the place where the cause of action has occurred, it has been held that
the Plaintiff is precluded from instituting the suit anywhere else.
Obviously, this is also because every other place would constitute a forum
non conveniens. This Court has harmonised the various hues of the
conundrum of the place of suing in several cases and has gone to the extent
of laying down that it should be courts endeavour to locate the place where
the cause of action has substantially arisen and reject others where it may
have incidentally arisen. Patel Roadways Limited, Bombay v. Prasad Trading
Company, AIR 1992 SC 1514 = (1991) 4 SCC 270 prescribes that if the
Defendant-corporation has a subordinate office in the place where the cause
of action arises, litigation must be instituted at that place alone,
regardless of the amplitude of options postulated in Section 20 of the CPC.
We need not dilate on this point beyond making a reference to ONGC v.
Utpal Kumar Basu (1994) 4 SCC 711 and South East Asia Shipping Co. Ltd. v.
Nav Bharat Enterprises Pvt. Ltd. (1996) 3 SCC 443.
We are alive to the possible incongruities that are fraught in
extrapolating decisions relating to civil law onto criminal law, which
includes importing the civil law concept of “cause of action” to criminal
law which essentially envisages the place where a crime has been committed
empowers the Court at that place with jurisdiction. In Navinchandra N.
Majithia v. State of Maharashtra (2000) 7 SCC 640 this Court had to
consider the powers of High Courts under Article 226(2) of the Constitution
of India. Noting the presence of the phrase “cause of action” therein it
was clarified that since some events central to the investigation of the
alleged crime asseverated in the Complaint had taken place in Mumbai and
especially because the fundamental grievance was the falsity of the
Complaint filed in Shillong, the writ jurisdiction of the Bombay High Court
was unquestionably available. The infusion of the concept of ‘cause of
action’ into the criminal dispensation has led to subsequent confusion
countenanced in High Courts. It seems to us that Bhaskaran allows multiple
venues to the Complainant which runs counter to this Court’s preference for
simplifying the law. Courts are enjoined to interpret the law so as to
eradicate ambiguity or nebulousness, and to ensure that legal proceedings
are not used as a device for harassment, even of an apparent transgressor
of the law. Law’s endeavour is to bring the culprit to book and to provide
succour for the aggrieved party but not to harass the former through
vexatious proceedings. Therefore, precision and exactitude are necessary
especially where the location of a litigation is concerned.

RELEVANT PROVISIONS
The provisions which will have to be examined and analysed are reproduced
for facility of reference :

1 Negotiable Instruments Act, 1881

2

“138. Dishonour of cheque for insufficiency, etc., of funds in the account.-
Where any cheque drawn by a person on an account maintained by him with a
banker for payment of any amount of money to another person from out of
that account for the discharge, in whole or in part, of any debt or other
liability, is returned by the bank unpaid, either because of the amount of
money standing to the credit of that account is insufficient to honour the
cheque or that it exceeds the amount arranged to be paid from that account
by an agreement made with that bank, such person shall be deemed to have
committed an offence and shall, without prejudice to any other provisions
of this Act, be punished with imprisonment for a term which may be extended
to two years, or with fine which may extend to twice the amount of the
cheque, or with both:
Provided that nothing contained in this section shall apply unless-
(a) the cheque has been presented to the bank within a period of six months
from the date on which it is drawn or within the period of its validity,
whichever is earlier.

(b) the payee or the holder in due course of the cheque, as the case may
be, makes a demand for the payment of the said amount of money by giving a
notice in writing, to the drawer of the cheque, within thirty days of the
receipt of information by him from the bank regarding the return of the
cheque as unpaid; and
(c) the drawer of such cheque fails to make the payment of the said amount
of money to the payee or, as the case may be, to the holder in due course
of the cheque, within fifteen days of the receipt of the said notice.

Explanation. For the purposes of this section, “debt or other liability”
means a legally enforceable debt or other liability.

142. Cognizance of offences.-Notwithstanding anything contained in the Code
of Criminal Procedure, 1973 (2 of 1974)-
(a) no court shall take cognizance of any offence punishable under section
138 except upon a complaint, in writing, made by the payee or, as the case
may be, the holder in due course of the cheque;

(b) such complaint is made within one month of the date on which the cause
of action arises under clause (c) of the proviso to section 138;

Provided that the cognizance of a complaint may be taken by the Court
after the prescribed period, if the complainant satisfies the Court that he
had sufficient cause for not making a complaint within such period.

(c) no court inferior to that of a Metropolitan Magistrate or a Judicial
Magistrate of the first class shall try any offence punishable under
section 138.”

Code of Criminal Procedure, 1973

“177. Ordinary place of inquiry and trial.- Every offence shall ordinarily
be inquired into and tried by a Court within whose local jurisdiction it
was committed.

178. Place of inquiry or trial.- (a) When it is uncertain in which of
several local areas an offence was committed, or
(b) where an offence is committed partly in one local area and partly in
another, or
(c) where an offence is a continuing one, and continues to be committed in
more local areas than one, or
(d) where it consists of several acts done in different local areas,
it may be inquired into or tried by a Court having jurisdiction over any of
such local areas.

179. Offence triable where act is done or consequence ensues.- When an act
is an offence by reason of anything which has been done and of a
consequence which has ensued, the offence may be inquired into or tried by
a Court within whose local jurisdiction such thing has been done or such
consequence has ensued.”

PARLIAMENTARY DEBATES
The XVIIth fasciculus of the Negotiable Instruments Act containing Sections
138 to 142 was introduced into the statute in 1988. The avowed intendment
of the amendment was to enhance the acceptability of cheques. It was based
on the Report of the Committee on Banking Laws by Dr. Rajamannar, submitted
in 1975, which suggested, inter alia, penalizing the issuance of cheque
without sufficient funds. The Minister of Finance had assuaged
apprehensions by arguing that safeguards for honest persons had been
incorporated in the provisions, viz., (i) the cheque should have been
issued in discharge of liability; (ii) the cheque should be presented
within its validity period; (iii) a Notice had to be sent by the Payee
demanding payment within 15 days of receiving notice of dishonour; (iv) the
drawer was allowed to make payment within 15 days from the date of receipt
of notice; (v) Complaint was to be made within one month of the cause of
action arising; (vi) no Court inferior to that of MM or JMFC was to try the
offence. The Finance Minister had also stated that the Court had
discretion whether the Drawer would be imprisoned or/and fined.
Detractors, however, pointed out that the IPC already envisioned criminal
liability for cheque-bouncing where dishonest or fraudulent intention or
mens rea on part of the Drawer was evident, namely, cheating, fraud,
criminal breach of trust etc. Therefore, there was no justification to
make the dishonour of cheques a criminal offence, ignoring factors like
illiteracy, indispensable necessities, honest/innocent mistake, bank
frauds, bona fide belief, and/or unexpected attachment or freezing of
account in any judicial proceedings as it would bring even honest persons
within the ambit of Section 138 NI Act. The possibility of abusing the
provision as a tool of harassment could also not be ruled out. Critics
also decried the punishment for being harsh; that civil liability can never
be converted into criminal liability; that singling out cheques out of all
other negotiable instruments would be violative of Article 14 of
Constitution of India. Critics contended that there was insufficient
empirical enquiry into statutes or legislation in foreign jurisdictions
criminalizing the dishonour of cheques and statistics had not been made
available bearing out that criminalization would increase the acceptability
of cheque. The Minister of Finance was not entirely forthright when he
stated in Parliament that the drawer was also allowed sufficient
opportunity to say whether the dishonour was by mistake. It must be borne
in mind that in the U.K. deception and dishonesty are key elements which
require to be proved. In the USA, some States have their own laws,
requiring fraudulent intent or knowledge of insufficient funds to be made
good. France has criminalized and subsequently decriminalized the dishonour
except in limited circumstances. Instead, it provides for disqualification
from issuing cheques, a practice which had been adopted in Italy and Spain
also. We have undertaken this succinct study mindful of the fact that
Parliamentary debates have a limited part to play in interpretation of
statutes, the presumption being that Legislators have the experience,
expertise and language skills to draft laws which unambiguously convey
their intentions and expectations for the enactments. What is palpably
clear is that Parliament was aware that they were converting civil
liability into criminal content inter alia by the deeming fiction of
culpability in terms of the pandect comprising Section 138 and the
succeeding Sections, which severely curtail defences to prosecution.
Parliament was also aware that the offence of cheating etc., already
envisaged in the IPC, continued to be available.

CIVIL LAW CONCEPTS NOT STRICTLY APPLICABLE
We have already cautioned against the extrapolation of civil law concepts
such as “cause of action” onto criminal law. Section 177 of the CrPC
unambiguously states that every offence shall ordinarily be inquired into
and tried by a Court within whose local jurisdiction it was committed.
“Offence”, by virtue of the definition ascribed to the word by Section 2(n)
of the CrPC means any act or omission made punishable by any law. Halsbury
states that the venue for the trial of a crime is confined to the place of
its occurrence. Blackstone opines that crime is local and jurisdiction
over it vests in the Court and Country where the crime is committed. This
is obviously the raison d’etre for the CrPC making a departure from the CPC
in not making the “cause of action” routinely relevant for the
determination of territoriality of criminal courts. The word “action” has
traditionally been understood to be synonymous to “suit”, or as ordinary
proceedings in a Court of justice for enforcement or protection of the
rights of the initiator of the proceedings. “Action, generally means a
litigation in a civil Court for the recovery of individual right or redress
of individual wrong, inclusive, in its proper legal sense, of suits by the
Crown” – [Bradlaugh v. Clarke 8 Appeal Cases 354 p.361]. Unlike civil
actions, where the Plaintiff has the burden of filing and proving its case,
the responsibility of investigating a crime, marshalling evidence and
witnesses, rests with the State. Therefore, while the convenience of the
Defendant in a civil action may be relevant, the convenience of the so
called complainant/victim has little or no role to play in criminal
prosecution. Keeping in perspective the presence of the word “ordinarily”
in Section 177 of CrPC, we hasten to adumbrate that the exceptions to it
are contained in the CrPC itself, that is, in the contents of the
succeeding Section 178. The CrPC also contains an explication of
“complaint” as any allegation to a Magistrate with a view to his taking
action in respect of the commission of an offence; not being a police
report. Prosecution ensues from a Complaint or police report for the
purpose of determining the culpability of a person accused of the
commission of a crime; and unlike a civil action or suit is carried out (or
‘prosecuted’) by the State or its nominated agency. The principal
definition of “prosecution” imparted by Black’s Law Dictionary 5th Edition
is “a criminal action; the proceeding instituted and carried on by due
process of law, before a competent Tribunal, for the purpose of determining
the guilt or innocence of a person charged with crime.” These reflections
are necessary because Section 142(b) of the NI Act contains the words, “the
cause of action arises under the proviso to Section 138”, resulting
arguably, but in our opinion irrelevantly, to the blind borrowing of
essentially civil law attributes onto criminal proceedings. We reiterate
that Section 178 admits of no debate that in criminal prosecution, the
concept of “cause of action”, being the bundle of facts required to be
proved in a suit and accordingly also being relevant for the place of
suing, is not pertinent or germane for determining territorial jurisdiction
of criminal Trials. Section 178, CrPC explicitly states that every offence
shall ordinarily be inquired into and tried by a Court within whose local
jurisdiction it was committed. Section 179 is of similar tenor. We are
also unable to locate any provision of the NI Act which indicates or
enumerates the extraordinary circumstances which would justify a departure
from the stipulation that the place where the offence is committed is where
the prosecution has to be conducted. In fact, since cognizance of the
offence is subject to the five Bhaskaran components or concomitants the
concatenation of which ripens the already committed offence under Section
138 NI Act into a prosecutable offence, the employment of the phrase “cause
of action” in Section 142 of the NI Act is apposite for taking cognizance,
but inappropriate and irrelevant for determining commission of the subject
offence. There are myriad examples of the commission of a crime the
prosecution of which is dependent on extraneous contingencies such as
obtainment of sanction for prosecution under Section 19 of the Prevention
of Corruption Act 1988. Similar situation is statutorily created by
Section 19 of the Environmental Protection Act 1986, Section 11 of the
Central Sales Tax Act 1956, Section 279 of the Income Tax Act, Sections 132
and 308, CrPC, Section 137 of the Customs Act etc. It would be idle to
contend that the offence comes into existence only on the grant of
permission for prosecution, or that this permission constitutes an integral
part of the offence itself. It would also be futile to argue that the
place where the permission is granted would provide the venue for the
trial. If sanction is not granted the offence does not vanish. Equally,
if sanction is granted from a place other than where the crime is
committed, it is the latter which will remain the place for its
prosecution.

SECTION 138 NI ACT
The marginal note of Section 138 of the NI Act explicitly defines the
offence as being the dishonour of cheques for insufficiency, etc., of funds
in the account. Of course, the headings, captions or opening words of a
piece of legislation are normally not strictly or comprehensively
determinative of the sweep of the actual Section itself, but it does
presage its intendment. See: Frick India Ltd. v. Union of India (1990) 1
SCC 400 and Forage & Co. v. Municipal Corporation of Greater Bombay (1999)
8 SCC 577. Accordingly, unless the provisions of the Section clearly point
to the contrary, the offence is concerned with the dishonour of a cheque;
and in the conundrum before us the body of this provision speaks in the
same timbre since it refers to a cheque being “returned by the bank
unpaid”. None of the provisions of the IPC have been rendered nugatory by
Section 138 of the NI Act and both operate on their own. It is trite that
mens rea is the quintessential of every crime. The objective of Parliament
was to strengthen the use of cheques, distinct from other negotiable
instruments, as mercantile tender and therefore it became essential for the
Section 138 NI Act offence to be freed from the requirement of proving mens
rea. This has been achieved by deeming the commission of an offence de
hors mens rea not only under Section 138 but also by virtue of the
succeeding two Sections. Section 139 carves out the presumption that the
holder of a cheque has received it for the discharge of any liability.
Section 140 clarifies that it will not be available as a defence to the
drawer that he had no reason to believe, when he issued the cheque, that it
would be dishonoured. Section 138 unequivocally states that the offence is
committed no sooner the drawee bank returns the cheque unpaid.
Section 138 NI Act is structured in two parts – the primary and the
provisory. It must be kept in mind that the Legislature does not ordain
with one hand and immediately negate it with the other. The proviso often
carves out a minor detraction or diminution of the main provision of which
it is an appendix or addendum or auxiliary. Black Law Dictionary states in
the context of a proviso that it is – “a limitation or exception to a grant
made or authority conferred, the effect of which is to declare that the one
shall not operate, or the other be exercised, unless in the case provided.
…. A clause or part of a clause in a statute, the office of which is either
to except something from the enacting clause, or to qualify or restrain its
generality, or to exclude some possible ground of misinterpretation of its
extent.” It should also be kept in perspective that a proviso or a
condition are synonymous. In our perception in the case in hand the
contents of the proviso place conditions on the operation of the main
provision, while it does form a constituent of the crime itself, it
modulates or regulates the crime in circumstances where, unless its
provisions are complied with, the already committed crime remains
impervious to prosecution. The proviso to Section 138 of the NI Act
features three factors which are additionally required for prosecution to
be successful. In this aspect Section 142 correctly employs the term
“cause of action” as compliance with the three factors contained in the
proviso are essential for the cognizance of the offence, even though they
are not part of the action constituting the crime. To this extent we
respectfully concur with Bhaskaran in that the concatenation of all these
concomitants, constituents or ingredients of Section 138 NI Act, is
essential for the successful initiation or launch of the prosecution. We,
however, are of the view that so far as the offence itself the proviso has
no role to play. Accordingly a reading of Section 138 NI Act in
conjunction with Section 177, CrPC leaves no manner of doubt that the
return of the cheque by the drawee bank alone constitutes the commission of
the offence and indicates the place where the offence is committed.
In this analysis we hold that the place, situs or venue of judicial inquiry
and trial of the offence must logically be restricted to where the drawee
bank, is located. The law should not be warped for commercial exigencies.
As it is Section 138 of the NI Act has introduced a deeming fiction of
culpability, even though, Section 420 is still available in case the payee
finds it advantageous or convenient to proceed under that provision. An
interpretation should not be imparted to Section 138 which will render it
as a device of harassment i.e. by sending notices from a place which has no
casual connection with the transaction itself, and/or by presenting the
cheque(s) at any of the banks where the payee may have an account. In our
discernment, it is also now manifest that traders and businessmen have
become reckless and incautious in extending credit where they would
heretofore have been extremely hesitant, solely because of the availability
of redress by way of criminal proceedings. It is always open to the
creditor to insist that the cheques in question be made payable at a place
of the creditor’s convenience. Today’s reality is that the every
Magistracy is inundated with prosecutions under Section 138 NI Act, so much
so that the burden is becoming unbearable and detrimental to the disposal
of other equally pressing litigation. We think that Courts are not
required to twist the law to give relief to incautious or impetuous
persons; beyond Section 138 of the NI Act.
We feel compelled to reiterate our empathy with a payee who has been duped
or deluded by a swindler into accepting a cheque as consideration for
delivery of any of his property; or because of the receipt of a cheque has
induced the payee to omit to do anything resulting in some damage to the
payee. The relief introduced by Section 138 of the NI Act is in addition
to the contemplations in the IPC. It is still open to such a payee
recipient of a dishonoured cheque to lodge a First Information Report with
the Police or file a Complaint directly before the concerned Magistrate.
If the payee succeeds in establishing that the inducement for accepting a
cheque which subsequently bounced had occurred where he resides or
ordinarily transacts business, he will not have to suffer the travails of
journeying to the place where the cheque has been dishonoured. All
remedies under the IPC and CrPC are available to such a payee if he chooses
to pursue this course of action, rather than a Complaint under Section 138
of the NI Act. And of course, he can always file a suit for recovery
wherever the cause of action arises dependent on his choosing.
The interpretation of Section 138 of the NI Act which commends itself to us
is that the offence contemplated therein stands committed on the dishonour
of the cheque, and accordingly the JMFC at the place where this occurs is
ordinarily where the Complaint must be filed, entertained and tried. The
cognizance of the crime by the JMFC at that place however, can be taken
only when the concomitants or constituents contemplated by the Section
concatenate with each other. We clarify that the place of the issuance or
delivery of the statutory notice or where the Complainant chooses to
present the cheque for encashment by his bank are not relevant for purposes
of territorial jurisdiction of the Complaints even though non-compliance
thereof will inexorably lead to the dismissal of the complaint. It cannot
be contested that considerable confusion prevails on the interpretation of
Section 138 in particular and Chapter XVII in general of the NI Act. The
vindication of this view is duly manifested by the decisions and conclusion
arrived at by the High Courts even in the few cases that we shall decide by
this Judgment. We clarify that the Complainant is statutorily bound to
comply with Section 177 etc. of the CrPC and therefore the place or situs
where the Section 138 Complaint is to be filed is not of his choosing. The
territorial jurisdiction is restricted to the Court within whose local
jurisdiction the offence was committed, which in the present context is
where the cheque is dishonoured by the bank on which it is drawn.
We are quite alive to the magnitude of the impact that the present decision
shall have to possibly lakhs of cases pending in various Courts spanning
across the country. One approach could be to declare that this judgment
will have only prospective pertinence, i.e. applicability to Complaints
that may be filed after this pronouncement. However, keeping in
perspective the hardship that this will continue to bear on alleged
accused/respondents who may have to travel long distances in conducting
their defence, and also mindful of the legal implications of proceedings
being permitted to continue in a Court devoid of jurisdiction, this
recourse in entirety does not commend itself to us. Consequent on
considerable consideration we think it expedient to direct that only those
cases where, post the summoning and appearance of the alleged Accused, the
recording of evidence has commenced as envisaged in Section 145(2) of the
Negotiable Instruments Act, 1881, will proceeding continue at that place.
To clarify, regardless of whether evidence has been led before the
Magistrate at the pre-summoning stage, either by affidavit or by oral
statement, the Complaint will be maintainable only at the place where the
cheque stands dishonoured. To obviate and eradicate any legal
complications, the category of Complaint cases where proceedings have gone
to the stage of Section 145(2) or beyond shall be deemed to have been
transferred by us from the Court ordinarily possessing territorial
jurisdiction, as now clarified, to the Court where it is presently pending.
All other Complaints (obviously including those where the
accused/respondent has not been properly served) shall be returned to the
Complainant for filing in the proper Court, in consonance with our
exposition of the law. If such Complaints are filed/refiled within thirty
days of their return, they shall be deemed to have been filed within the
time prescribed by law, unless the initial or prior filing was itself time
barred.

DISPOSAL OF PRESENT APPEALS
Crl. Appeal No.2287 of 2009
21. A learned Single Judge of the High Court of Judicature at Bombay,
Nagpur Bench has, pursuant to a threadbare discussion of Bhaskaran
concluded that since the concerned cheque was drawn on the Bank of India,
Bhandara Branch, Maharashtra where it was dishonoured, the Judicial
Magistrate First Class, Digras, District Yavatmal had no jurisdiction to
entertain the Complaint. It is pertinent to note that the subject cheque
was presented at Digras, District Yavatmal where the Complainant had a bank
account although he was a resident of District Washim, Maharashtra. The
learned Single Judge, in the impugned judgment, had rightly rejected the
argument that the Complaint itself should be dismissed; instead he ordered
that it be returned to the complainant for filing in the appropriate Court.

The Appeal is accordingly dismissed.
Crl. Appeal No. 1593 of 2014
[Arising out of S.L.P.(Crl.)No.2077 of 2009
22. In this Appeal the Respondent-accused, having purchased electronic
items from the Appellant-company, issued the cheque in question drawn on
UCO Bank, Tangi, Orissa which was presented by the Complainant-company at
State Bank of India, Ahmednagar Branch, Maharashtra as its branch office
was located at Ahmednagar. The cheque was dishonoured by UCO Bank, Tangi,
Orissa. A Complaint was filed before JMFC, Ahmednagar. An application was
filed by the Respondent-accused under Section 177 CrPC questioning the
jurisdiction of the JMFC Ahmednagar, who held that since the demand notice
was issued from and the payment was claimed at Ahmednagar, he possessed
jurisdiction to try the Complaint. The High Court disagreed with the
conclusion of the JMFC, Ahmednagar that the receipt of notice and non-
payment of the demanded amount are factors which will have prominence over
the place wherefrom the notice of demand was issued and held that JMFC,
Ahmednagar did not have the territorial jurisdiction to entertain the
Complaint. In view of the foregoing discussion on the issue above, the
place where the concerned cheque had been dishonoured, which in the case in
hand was Tangi, Orissa, the Appeal is allowed with the direction that the
Complaint be returned to the Complainant for further action in accordance
with law.

Crl. Appeal Nos. 1594, 1595 & 1601 to 1603 of 2014
[Arising out of S.L.P.(Crl.)Nos.2112 of 2009 and 2117 of 2009;
3762 of 2012; 3943 of 2012; 3944 of 2012]

23. The facts being identical to Criminal Appeal arising out of
S.L.P.(Crl.)No.2077 of 2009, these Appeals stand dismissed.

Crl. Appeal Nos.1596-1600 of 2014
[Arising out of S.L.P.(Crl.)Nos.1308-1312 of 2009]
24. The Appellant-complainant herein has its Registered Office in Delhi
from where the Respondents-accused are also carrying on their business.
The cheques in question were issued by the Respondent No.2-accused drawn on
Indian Overseas Bank, Connaught Place, New Delhi. However, the same were
presented and dishonoured at Nagpur, Maharashtra where the Complainant
states it also has an office. There is no clarification why the cheques had
not been presented in Delhi where the Complainant had its Registered
Office, a choice which we think is capricious and perfidious, intended to
cause harassment. Upon cheques having been dishonoured by the concerned
bank at Delhi, five Complaints were filed before Judicial Magistrate First
Class, Nagpur who heard the Complaints, and also recorded the evidence led
by both the parties. However, the JMFC, Nagpur acquitted the Respondent
No.2-accused on the ground of not having territorial jurisdiction. On
appeals being filed before the High Court of Bombay, the judgment of the
JMFC, Nagpur was partly set aside so far as the acquittal of the Respondent
No.2-accused was concerned and it was ordered that the Complaints be
returned for filing before the proper Court. In view of the conclusion
arrived at by us above, these Appeals are also dismissed.

Crl. Appeal No. 1604 of 2014
[Arising out of S.L.P.(Crl.)No.59 of 2013]
25. The cheque in question was drawn by the Respondent-accused on State
Bank of Travancore, Delhi. However, it was presented by the Appellant-
complainant at Aurangabad. A Complaint was filed before JMFC, Aurangabad
who issued process. Respondent-accused filed an application under Section
203 of CrPC seeking dismissal of the Complaint. The application was
dismissed on the predication that once process had been initiated, the
Complaint could not be dismissed. On a writ petition being filed before
the High Court of Bombay, Aurangabad Bench, the order of issuance of
process was set aside and the Complaint was ordered to be returned for
being presented before a competent court having jurisdiction to entertain
the same. The High Court had correctly noted that the objection pertained
to the territorial jurisdiction of the JMFC, Aurangabad, a feature which
had not been comprehensively grasped by the latter. The High Court noted
that the Registered Office of the Complainant was at Chitegaon, Tehsil
Paithan, District Aurangabad whereas the Accused was transacting business
from Delhi. The High Court pithily underscored that in paragraph 4 of the
Complaint it had been specifically contended that credit facility was given
to the Accused in Delhi, where the Complainant-company also had its branch
office. The statutory notice had also emanated from Aurangabad, and it had
been demanded that payment should be made in that city within the specified
time. It was also the Complainant’s case that the Invoice, in case of
disputes, restricted jurisdiction to Aurangabad courts; that intimation of
the bouncing of the cheques was received at Aurangabad. It is however
necessary to underscore that the Accused had clarified that the subject
transaction took place at Delhi where the goods were supplied and the
offending cheque was handed over to the Complainant. It appears that a
Civil Suit in respect of the recovery of the cheque amount has already been
filed in Delhi. We may immediately reiterate that the principles
pertaining to the cause of action as perceived in civil law are not
relevant in criminal prosecution. Whilst the clause restricting
jurisdiction to courts at Aurangabad may have efficacy for civil
proceedings, provided any part of the cause of action had arisen in
Aurangabad, it has no bearing on the situs in criminal prosecutions. Since
a Civil Suit is pending, we hasten to clarify that we are not expressing
any opinion on the question of whether the courts at Delhi enjoy
jurisdiction to try the Suit for recovery. In the impugned judgment, the
High Court duly noted Bhaskaran and Harman. However, it committed an
error in analyzing the cause of action as well as the covenant restricting
jurisdiction to Aurangabad as these are relevant only for civil disputes.
However, the impugned judgment is beyond interference inasmuch as it
concludes that the JMFC, Aurangabad has no jurisdiction over the offence
described in the Complaint. The Appeal is accordingly dismissed.

……………………………………………….J.
[T.S. THAKUR]

……………………………………………….J.
[VIKRAMAJIT SEN]

………………………………………………J.
[C. NAGAPPAN]
New Delhi
August 1, 2014.

REPORTABLE

IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.2287 OF 2009

DASHRATH RUPSINGH RATHOD …Appellant
Versus
STATE OF MAHARASHTRA & ANR. …Respondents
WITH
CRIMINAL APPEAL NO. 1593 OF 2014
(Arising out of S.L.P. (Crl.) No.2077 of 2009)
CRIMINAL APPEAL NO. 1594 OF 2014
(Arising out of S.L.P. (Crl.) No.2112 of 2009)
CRIMINAL APPEAL NO. 1595 OF 2014
(Arising out of S.L.P. (Crl.) No.2117 of 2009)
CRIMINAL APPEAL NO. 1596-1600 OF 2014
(Arising out of S.L.P. (Crl.) Nos.1308-1312 of 2009)
CRIMINAL APPEAL NO. 1601 OF 2014
(Arising out of S.L.P. (Crl.) No.3762 of 2012)
CRIMINAL APPEAL NO. 1602 OF 2014
(Arising out of S.L.P. (Crl.) No.3943 of 2012)
CRIMINAL APPEAL NO. 1603 OF 2014
(Arising out of S.L.P. (Crl.) No.3944 of 2012)
AND
CRIMINAL APPEAL NO. 1604 OF 2014
(Arising out of S.L.P. (Crl.) No.59 of 2013)

J U D G M E N T

T.S. Thakur, J.
1. I have had the advantage of going through the draft order proposed by
my esteemed brother Vikramajit Sen, J. I entirely agree with the
conclusions which my erudite brother has drawn based on a remarkably
articulate process of reasoning that illumines the draft judgment authored
by him. I would all the same like to add a few lines of my own not because
the order as proposed leaves any rough edges to be ironed out but only
because the question of law that arises for determination is not only
substantial but of considerable interest and importance for the commercial
world. The fact that the view being taken by us strikes a discordant note
on certain aspects which have for long been considered settled by earlier
decisions of this Court being only an additional reason for the
modest addition that I propose to make. Of these decisions
Bhaskaran’s case stands out as the earliest in which this Court
examined the vexed question of territorial jurisdiction of the Courts to
try offences punishable under Section 138 of the Negotiable Instruments
Act, 1881 (hereinafter called “NI Act”). Bhaskaran’s case was heard by a
two-judge Bench of this Court who took the view that the jurisdiction to
try an offence under Section 138 could not be determined only by reference
to the place where the cheque was dishonoured. That is because dishonour of
the cheque was not by itself an offence under Section 138 of The Negotiable
Instruments Act, 1881, observed the Court. The offence is complete only
when the drawer fails to pay the cheque amount within the period of fifteen
days stipulated under clause (c) of the proviso to Section 138 of the Act.
Having said that the Court recognised the difficulty in fixing a place
where such failure could be said to have taken place. It could, said the
Court, be the place where the drawer resides or the place where the payee
resides or the place where either of them carries on business. To resolve
this uncertainty the Court turned to Sections 178 and 179 of the Cr.P.C. to
hold that since an offence under Section 138 can be completed only with the
concatenation of five acts that constituted the components of the offence
any Court within whose jurisdiction any one of those acts was committed
would have the jurisdiction to try the offence. The Court held:
“The offence under Section 138 of the Act can be completed only with the
concatenation of a number of acts. The following are the acts which are
components of the said offence: (1) drawing of the cheque, (2) presentation
of the cheque to the bank, (3) returning the cheque unpaid by the drawee
bank, (4) giving notice in writing to the drawer of the cheque demanding
payment of the cheque amount, (5) failure of the drawer to make payment
within 15 days of the receipt of the notice.

It is not necessary that all the above five acts should have been
perpetrated at the same locality. It is possible that each of those five
acts could be done at five different localities. But a concatenation of all
the above five is a sine qua non for the completion of the offence under
Section 138 of the Code. In this context a reference to Section 178(d) of
the Code is useful. It is extracted below:

“178. (a)-(c) * * *
(d) where the offence consists of several acts done in different local
areas, it may be enquired into or tried by a court having jurisdiction over
any of such local areas.”

Thus it is clear, if the five different acts were done in five different
localities any one of the courts exercising jurisdiction in one of the five
local areas can become the place of trial for the offence under Section 138
of the Act. In other words, the complainant can choose any one of those
courts having jurisdiction over any one of the local areas within the
territorial limits of which any one of those five acts was done. As the
amplitude stands so widened and so expansive it is an idle exercise to
raise jurisdictional question regarding the offence under Section 138 of
the Act.”

2. Bhaskaran held the field for two years. The first blow to the view
taken by this Court in Bhaskaran’s case was dealt by a three-Judge Bench
decision in Shri Ishar Alloy Steels Ltd. v. Jayaswals Neco Ltd. (2001) 3
SCC 609. The question that arose in that case was whether the limitation of
six months for presentation of a cheque for encashment was applicable viz-a-
viz presentation to the bank of the payee or that of the drawer. High
Courts in this country had expressed conflicting opinions on the subject.
This Court resolved the cleavage in those pronouncements by holding that
the cheque ought to be presented to the drawee bank for its dishonour to
provide a basis for prosecution under Section 138. The Court observed:
“The use of the words “a bank” and “the bank” in the section are an
indicator of the intention of the legislature. “The bank” referred to in
proviso (a) to the proviso to Section 138 of the Act would mean the drawee
bank on which the cheque is drawn and not all banks where the cheque is
presented for collection including the bank of the payee, in whose favour
the cheque is issued.

It, however, does not mean that the cheque is always to be presented to the
drawer’s bank on which the cheque is issued. However, a combined reading of
Sections 3, 72 and 138 of the Act would clearly show that the law mandates
the cheque to be presented at the bank on which it is drawn if the drawer
is to be held criminally liable. Such presentation is necessarily to be
made within six months at the bank on which the cheque is drawn, whether
presented personally or through another bank, namely, the collecting bank
of the payee.”

3. Ishar Alloy’s case (supra) did not deal with the question of
jurisdiction of the Courts nor was Bhaskaran noticed by the Court while
holding that the presentation of the cheque ought to be within six months
to the drawee bank. But that does not, in our view, materially affect the
logic underlying the pronouncement, which pronouncement coming as it is
from a bench of coordinate jurisdiction binds us. When logically extended
to the question of jurisdiction of the Court to take cognizance, we find it
difficult to appreciate how a payee of the cheque can by presentation of
the cheque to his own bank confer jurisdiction upon the Court where such
bank is situate. If presentation referred to in Section 138 means
presentation to the “drawee bank”, there is no gainsaying that dishonour
would be localised and confined to the place where such bank is situated.
The question is not whether or not the payee can deposit his cheque in any
bank of his choice at any place. The question is whether by such deposit
can the payee confer jurisdiction on a Court of his choice? Our answer is
in the negative. The payee may and indeed can present the cheque to any
bank for collection from the drawee bank, but such presentation will be
valid only if the drawee bank receives the cheque for payment within the
period of six months from the date of issue. Dishonour of the cheque would
be localised at the place where the drawee bank is situated. Presentation
of the cheque at any place, we have no manner of doubt, cannot confer
jurisdiction upon the Court within whose territorial limits such
presentation may have taken place.
4. Then came Harman Electronics (P) Ltd. v. National Panasonic India (P)
Ltd. (2009) 1 SCC 720. That was a case where the complaint under Section
138 was filed in a Delhi Court, only because the statutory notice required
to be issued under the proviso to Section 138 was issued from Delhi. If
Bhaskaran was correctly decided, Harman should not have interfered with the
exercise of jurisdiction by the Delhi Court for issue of a notice was in
terms of Bhaskaran, one of the factors that clothed the Court in Delhi to
take cognizance and try the case. Harman did not do so. In Harman’s case
this Court, emphasized three distinct aspects. Firstly, it said that there
was a world of difference between issue of a notice, on the one hand, and
receipt, thereof, on the other. Issue of notice did not give rise to a
cause of action while receipt did, declared the Court.
5. Secondly, the Court held that the main provision of Section 138
stated what would constitute an offence. The proviso appended thereto
simply imposed certain further conditions which must be fulfilled for
taking cognizance of the offence. The following passage deals with both
these aspects:
“It is one thing to say that sending of a notice is one of the ingredients
for maintaining the complaint but it is another thing to say that dishonour
of a cheque by itself constitutes an offence. For the purpose of proving
its case that the accused had committed an offence under Section 138 of the
Negotiable Instruments Act, the ingredients thereof are required to be
proved. What would constitute an offence is stated in the main provision.
The proviso appended thereto, however, imposes certain further conditions
which are required to be fulfilled before cognizance of the offence can be
taken. If the ingredients for constitution of the offence laid down in
provisos (a), (b) and (c) appended to Section 138 of the Negotiable
Instruments Act are intended to be applied in favour of the accused, there
cannot be any doubt that receipt [pic]of a notice would ultimately give
rise to the cause of action for filing a complaint. As it is only on
receipt of the notice that the accused at his own peril may refuse to pay
the amount. Clauses (b) and (c) of the proviso to Section 138 therefore
must be read together. Issuance of notice would not by itself give rise to
a cause of action but communication of the notice would.”

6. Thirdly, the Court held that if presentation of the cheque or issue
of notice was to constitute a good reason for vesting courts with
jurisdiction to try offences under Section 138, it would lead to harassment
of the drawer of the cheques thereby calling for the need to strike a
balance between the rights of the parties to the transaction. The Court
said:
“We cannot, as things stand today, be oblivious of the fact that a banking
institution holding several cheques signed by the same borrower can not
only present the cheque for its encashment at four different places but
also may serve notices from four different places so as to enable it to
file four complaint cases at four different places. This only causes grave
harassment to the accused. It is, therefore, necessary in a case of this
nature to strike a balance between the right of the complainant and the
right of an accused vis-à-vis the provisions of the Code of Criminal
Procedure.”

7. Bhaskaran was, in the wake of the above, considerably diluted and the
logic behind vesting of jurisdiction based on the place from where the
notice was issued questioned. Even presentation of the cheque as a reason
for assumption of jurisdiction to take cognizance was doubted for a
unilateral act of the complainant/payee of the cheque could without any
further or supporting reason confer jurisdiction on a Court within whose
territorial limits nothing except the presentation of the cheque had
happened.
8. Three recent decisions need be mentioned at this stage which have
followed Bhaskaran and attempted to reconcile the ratio of that case with
the subsequent decisions in Ishar Alloy Steels and Harman Electronics. In
Nishant Aggarwal v. Kailash Kumar Sharma (2013) 10 SCC 72 this Court was
once again dealing with a case where the complaint had been filed in Court
at Bhiwani in Haryana within whose territorial jurisdiction the complainant
had presented the cheque for encashment, although the cheque was drawn on a
bank at Gauhati in Assam. Relying upon the view taken in Bhaskaran this
Court held that the Bhiwani Court had jurisdiction to deal with the matter.
While saying so, the Court tried to distinguish the three-Judge Bench
decision in Ishar Alloy Steels (supra) and that rendered in Harman
Electronics case (supra) to hold that the ratio of those decisions did not
dilute the principle stated in Bhaskaran case. That exercise was repeated
by this Court in FIL Industries Ltd. v. Imtiyaz Ahmad Bhat (2014) 2 SCC 266
and in Escorts Ltd. v. Rama Mukherjee (2014) 2 SCC 255 which too followed
Bhaskaran and held that complaint under Section 138 Negotiable Instrument
Act could be instituted at any one of the five places referred to in
Bhaskaran’s case.
9. We have, with utmost respect to the Judges comprising the Bench that
heard the above cases, found it difficult to follow suit and subscribe to
the view stated in Bhasakaran. The reasons are not far too seek and may be
stated right away.
10. Section 138 is a penal provision that prescribes imprisonment upto
two years and fine upto twice the cheque amount. It must, therefore, be
interpreted strictly, for it is one of the accepted rules of interpretation
that in a penal statute, the Courts would hesitate to ascribe a meaning,
broader than what the phrase would ordinarily bear. Section 138 is in two
parts. The enacting part of the provision makes it abundantly clear that
what constitutes an offence punishable with imprisonment and/or fine is the
dishonour of a cheque for insufficiency of funds etc. in the account
maintained by the drawer with a bank for discharge of a debt or other
liability whether in full or part. The language used in the provision is
unambiguous and the ingredients of the offence clearly discernible viz. (a)
Cheque is drawn by the accused on an account maintained by him with a
banker. (b) The cheque amount is in discharge of a debt or liability and
(c) The cheque is returned unpaid for insufficiency of funds or that the
amount exceeds the arrangement made with the bank. But for the proviso that
comprises the second part of the provision, any dishonour falling within
the four corners of the enacting provision would be punishable without much
ado. The proviso, however, draws an exception to the generality of the
enacting part of the provision, by stipulating two steps that ought to be
taken by the complainant holder of the cheque before the failure of the
drawer gives to the former the cause of action to file a complaint and the
competent Court to take cognizance of the offence. These steps are distinct
from the ingredients of the offence which the enacting provision creates
and makes punishable. It follows that an offence within the contemplation
of Section 138 is complete with the dishonour of the cheque but taking
cognizance of the same by any Court is forbidden so long as the complainant
does not have the cause of action to file a complaint in terms of clause
(c) of the proviso read with Section 142 which runs as under:
”Section 142:
Cognizance of offences. —Notwithstanding anything contained in the Code of
Criminal Procedure, 1973 (2 of 1974)—
(a) no court shall take cognizance of any offence punishable under section
138 except upon a complaint, in writing, made by the payee or, as the case
may be, the holder in due course of the cheque;
(b) such complaint is made within one month of the date on which the cause
of action arises under clause (c) of the proviso to section 138: [Provided
that the cognizance of a complaint may be taken by the Court after the
prescribed period, if the complainant satisfies the Court that he had
sufficient cause for not making a complaint within such period.]
(c) no court inferior to that of a Metropolitan Magistrate or a Judicial
Magistrate of the first class shall try any offence punishable under
section 138.“

11. The following would constitute ‘cause of action’ referred to in sub
clause (b) above:
The complainant has presented the cheque for payment within the period of
six months from the date of the issue thereof.
The complainant has demanded the payment of the cheque amount from the
drawer by issuing a written notice within thirty days of receipt of
information by him from the bank regarding the dishonour.
The drawer has failed to pay the cheque amount within fifteen days of the
receipt of the notice.
12. A proper understanding of the scheme underlying the provision would
thus make it abundantly clear that while the offence is complete upon
dishonour, prosecution for such offence is deferred till the time the cause
of action for such prosecution accrues to the complainant. The proviso in
that sense, simply postpones the actual prosecution of the offender till
such time he fails to pay the amount within the statutory period prescribed
for such payment. There is, in our opinion, a plausible reason why this
was done. The Parliament in its wisdom considered it just and proper to
give to the drawer of a dishonoured cheque an opportunity to pay up the
amount, before permitting his prosecution no matter the offence is
complete, the moment the cheque was dishonoured. The law has to that extent
granted a concession and prescribed a scheme under which dishonour need not
necessarily lead to penal consequence if the drawer makes amends by making
payment within the time stipulated once the dishonour is notified to him.
Payment of the cheque amount within the stipulated period will in such
cases diffuse the element of criminality that Section 138 attributes to
dishonour by way of a legal fiction implicit in the use of the words “shall
be deemed to have committed an offence”. The drawer would by such payment
stand absolved by the penal consequences of dishonour. This scheme may be
unique to Section 138 NI Act, but there is hardly any doubt that the
Parliament is competent to legislate so to provide for situations where a
cheque is dishonoured even without any criminal intention on the part of
the drawer.
13. The scheme of Section 138 thus not only saves the honest drawer but
gives a chance to even the dishonest ones to make amends and escape
prosecution. Compliance with the provision is, in that view, a mandatory
requirement. (See C.C. Alavi Haji v. Palapetty Muhammed and Another (2007)
6 SCC 555).
14. Harman in that view correctly held that “what would constitute an
offence is stated in the main provision. The proviso appended thereto
however imposes certain further conditions which are required to be
fulfilled before cognizance of the offence can be taken.” If the
Parliament intended to make the conditions stipulated in the proviso, also
as ingredients of the offence, the provision would have read differently.
It would then have specifically added the words “and the drawer has despite
receipt of a notice demanding the payment of the amount, failed to pay the
same within a period of fifteen days from the date of such demand made in
writing by a notice”. That, however, is not how the enacting provision of
Section 138 reads. The legislature has, it is obvious, made a clear
distinction between what would constitute an offence and what would give to
the complainant the cause of action to file a complaint for the court
competent to take cognizance. That a proviso is an exception to the
general rule is well settled. A proviso is added to an enactment to
qualify or create an exception to what is contained in the enactment. It
does not by itself state a general rule. It simply qualifies the
generality of the main enactment, a portion which but for the proviso would
fall within the main enactment.
15. The P. Ramanatha Aiyar, Law Lexicon, 2nd Edition, Wadhwa & Co. at
page 1552 defines proviso as follows:
“The word “proviso” is used frequently to denote the clause the first words
of which are “provided that” inserted in deeds and instruments generally.
And containing a condition or stipulation on the performance or non-
performance of which, as the case maybe. The effect of a proceeding clause
or of the deed depends.
A Clause inserted in a legal or formal document, making some condition,
stipulation, exception or limitation or upon the observance of which the
operation or validity of the instrument depends [ S. 105, Indian Evidence
Act].
A proviso is generally intended to restrain the enacting clause and to
except something which would have otherwise been within it or in some
measure to modify the enacting clause…”

16. To quote “Craies on Statute Law”, 7th Edn., Sweet & Maxwell at page
220 “If the principal object of the Act can be accomplished and stand
under the restriction of the saving clause or proviso, the same is not to
be held void for repugnancy.”
17. One of the earliest judgments on the subject is a three Judge Bench
decision in Kedarnath Jute Manufacturing Co. v. Commercial Tax Officer,
Calcutta and Ors. AIR 1966 SC 12. The Court was in that case examining the
effect of a proviso which imposed a condition on getting exemption from tax
and observed:
“… The substantive clause gives the exemption and the proviso qualifies
the substantive clause. In effect the proviso says that part of the
turnover of the selling dealer covered by the terms of sub-cl. (ii) will be
exempted provided a declaration in the from prescribed is furnished. To put
it in other words, a dealer cannot get the exemption unless he furnishes
the declaration in the prescribed form. It is well settled that “the effect
of an excepting or qualifying proviso, according to the ordinary rules of
construction, is to except out of the preceding portion of the enactment,
or to qualify something enacted therein, which but for the proviso would be
within it” : see “Craies on Statute Law”, 6th Edn., p. 217.”
18. Also pertinent is a four-Judge Bench decision of this Court in Dwarka
Prasad v. Dwarka Das Saraf (1976) 1 SCC 128 where this Court was examining
whether a cinema theatre equipped with projectors and other fittings ready
to be launched as entertainment house was covered under the definition of
‘accommodation’ as defined in Section 2 (1) (d) of Uttar Pradesh
(Temporary) Control of Rent and Eviction Act, 1947. The proviso provided
for some exception for factories and business carried in a building. It was
held that sometimes draftsmen include proviso by way of over caution to
remove any doubts and accommodation would include this cinema hall:
“18. A proviso must be limited to the subject-matter of the enacting
clause. It is a settled rule of construction that a proviso must prima
facie be read and considered in relation to the principal matter to which
it is a proviso. It is not a separate or independent enactment. ‘Words are
dependent on the principal enacting words, to which they are tacked as a
proviso. They cannot be read as divorced from their context’ 1912 A.C. 544.
If the rule of construction is that prima facie a proviso should be limited
in its operation to the subject-matter of the enacting clause, the stand we
have taken is sound. To expand the enacting clause, inflated by the
proviso, sins against the fundamental rule of construction that a proviso
must be considered in relation to the principal matter to which it stands
as a proviso. A proviso ordinarily is but a proviso, although the golden
rule is to read the whole section, inclusive of the proviso, in such manner
that they mutually throw light on each other and result in a harmonious
construction.
The proper course is to apply the broad general rule of construction which
is that a section or enactment must be construed as a whole, each portion
throwing light if need be on the rest.
The true principle undoubtedly is, that the sound interpretation and
meaning of the statute, on a view of the enacting clause, saving clause,
and proviso, taken and construed together is to prevail. (Maxwell on
Interpretation of Statutes, 10th Edn. p. 162)”
(emphasis supplied)

19. In Sreenivasa General Traders & Ors. v. State of Andhra Pradesh &
Ors. (1983) 4 SCC 353 another three- Judge bench of this Court examined the
role of a proviso while interpreting Rule 74(1) of the Andhra Pradesh
(Agricultural Produce & Livestock) Markets Rules, 1969.
“The normal function of a proviso is to except something out of the main
enacting part or to qualify something enacted therein which but for the
proviso would be within the purview of the enactment. Proviso to Rule 74(1)
is added to qualify or create an exception.”

20. Reference may also be made to Tribhovandas Haribhai Tamboli v.
Gujarat Revenue Tribunal and others (1991) 3 SCC 442 wherein this Court
clearly held that when the language of the main enactment is clear, the
proviso can have no effect on the interpretation of the main clause.
”7. It is a cardinal rule of interpretation that a proviso to a particular
provision of a statute only embraces the field, which is covered by the
main provision. It carves out an exception to the main provision to which
it has been enacted by the proviso and to no other. The proper function of
a proviso is to except and deal with a case which would otherwise fall
within the general language of the main enactment, and its effect is to
confine to that case. Where the language of the main enactment is explicit
and unambiguous, the proviso can have no repercussion on the interpretation
of the main enactment, so as to exclude from it, by implication what
clearly falls within its express terms. The scope of the proviso,
therefore, is to carve out an exception to the main enactment and it
excludes something which otherwise would have been within the rule. It has
to operate in the same field and if the language of the main enactment is
clear, the proviso cannot be torn apart from the main enactment nor can it
be used to nullify by implication what the enactment clearly says nor set
at naught the real object of the main enactment, unless the words of the
proviso are such that it is its necessary effect.”
(emphasis supplied)

21. The same line of reasoning was followed in A.N. Sehgal and
Ors. v. Raje Ram Sheoram and Ors. 1992 Supp (1) SCC 304 while interpreting
a proviso in the Haryana Service of Engineers Rules, 1960 where the Court
held that the proviso to Rule 5(2)(a) cannot be applied to confer the
benefit of regular appointment on every promotee appointed in excess of 50%
quota. This Court harmoniously read the main provision and the proviso and
gave effect to the rule.

22. In Kerala State Housing Board and Ors. v. Ramapriya Hotels (P) Ltd.
and Ors. 1994 (5) SCC 672 this Court was examining whether the period of 4
years envisaged in proviso to Section 16(i) under Kerala Land Acquisition
Act, 1961 could be reckoned from date when agreement was executed or from
date of publication of notification under Section 3(1) of the Act after the
agreement was executed. After relying on Tribhovandas Haribhai Tamboli
(supra) and A.N. Sehgal (supra) this Court held that the proviso should be
harmoniously read with the section. To quote Tribhovandas (supra) as
followed in this judgment:

“In Tribhovandas Haribhai Tamboli v. Gujarat Revenue Tribunal this Court
held that the proper function of a proviso is to except and deal with a
case which would otherwise fall within the general language of the main
enactment and its effect is to be confined to that case. Where the language
of the main enactment is explicit and unambiguous, the proviso can have no
repercussion on the interpretation of the main enactment, so as to exclude
from it, by implication what clearly falls within its express terms. The
scope of the proviso, therefore, is to carve out an exception to the main
enactment and it excludes something which otherwise would have been within
the rule. It has to operate in the same field and if the language of the
main enactment is clear, the proviso cannot be torn apart from the main
enactment nor can it be used to nullify by implication what the enactment
clearly says, nor set at naught the real object of the main enactment,
unless the words of the proviso are such that it is its necessary effect.
In that case it was held that by reading the proviso consistent with the
provisions of Section 88 of the Bombay Tenancy and Agricultural Act, the
object of the main provision was sustained.”
(emphasis supplied)

23. In Kush Sahgal & Ors. v. M.C. Mitter & Ors. (2000) 4 SCC 526 a
landlady made an application for eviction of the tenant on the basis that
she wanted the place for business purposes which was not allowed as per the
proviso to Section 21(2) U.P. Urban Buildings (Regulation of Letting, Rent
and Eviction) Act, 1972. The Court examined the role and purport of the
proviso and observed :
“This we say because the normal function of a proviso is to except
something out of the enactment or to qualify something enacted therein
which but for the proviso would be within the purview of the enactment.
(See : Kedarnath Jute Manufacturing Co. Ltd. v. Commercial Tax Office
[1965]3SCR626). Since the natural presumption is that but for the proviso,
the enacting part of the section would have included the subject-matter of
the proviso, the enacting part has to be given such a construction which
would make the exceptions carved out by the proviso necessary and a
construction which would make the exceptions unnecessary and redundant
should be avoided (See: Justice G. P. Singh’s “Principles of Statutory
Interpretation” Seventh Edition 1999, p-163). This principle has been
deduced from the decision of the Privy Council in Govt. of the Province of
Bombay v. Hormusji Manekji (AIR 1947 PC 200) as also the decision of this
Court in Durga Dutt Sharma v.Navaratna Pharmaceutical Laboratories (AIR
1965 SC 980).”

24. To the same effect are the decisions of this Court in Ali M.K. and
Ors. v. State of Kerala and Ors. (2003) 11 SCC 632, Nagar Palika (supra)
and in Steel Authority of India Ltd. v. S.U.T.N.I Sangam & Ors. (2009) 16
SCC 1.
25. In conclusion, we may refer to Maxwell, “Interpretation of Statutes”
Edn. 12, 1969, on P. 189-190 which states that it is a general finding and
practice “that inconsistencies can be avoided by applying the general rule
that the words of a proviso are not to be taken “absolutely in their strict
literal sense” [R v. Dimbdin (1910)] but that a proviso is “of necessity
… limited in its operation to the ambit of the section which it
qualifies” [Lloyds and Scottish Finance Ltd v. Modern Cars and Canavans
(Kingston) Ltd.(1966)]. And, so far as that section itself is concerned,
the proviso receives a restricted construction: where the section confers
powers, “it would be contrary to the ordinary operation of a proviso to
give it an effect which would cut down those powers beyond what compliance
with the proviso renders necessary.” [Re Tabrisky v. Board of Trade
(1947)]”

26. Bhaskaran, in our view, reads the proviso as prescribing the
ingredients of the offence instead of treating it as an exception to the
generality of the enacting part by stipulating further conditions before a
competent Court may take cognizance of the same. Seen in the light of the
provisions of Section 142 of the Act, the proviso simply defers prosecution
of the offender till the conditions prescribed therein are satisfied.
Bhaskaran does not view the matter in that perspective while Harman (supra)
does. We find ourselves in respectful agreement with the view in Harman’s
case on this aspect.

27. In Bhaskaran, this Court resolved the confusion as to the place
of commission of the offence by relying upon Sections 177 to 179 of the
Cr.P.C. But the confusion arises only if one were to treat the proviso as
stipulating the ingredients of the offence. Once it is held that the
conditions precedent for taking cognizance are not the ingredients
constituting the offence of dishonour of the cheque, there is no room for
any such confusion or vagueness about the place where the offence is
committed. Applying the general rule recognised under Section 177 of the
Cr.P.C. that all offences are local, the place where the dishonour occurs
is the place for commission of the offence vesting the Court exercising
territorial jurisdiction over the area with the power to try the offences.
Having said that we must hasten to add, that in cases where the offence
under Section 138 is out of the offences committed in a single transaction
within the meaning of Section 220 (1) of the Cr.P.C. then the offender may
be charged with and tried at one trial for every such offence and any such
inquiry or trial may be conducted by any Court competent to enquire into or
try any of the offences as provided by Section 184 of the Code. So also,
if an offence punishable under Section 138 of the Act is committed as a
part of single transaction with the offence of cheating and dishonestly
inducing delivery of property then in terms of Section 182 (1) read with
Sections 184 and 220 of the Cr.P.C. such offence may be tried either at the
place where the inducement took place or where the cheque forming part of
the same transaction was dishonoured or at the place where the property
which the person cheated was dishonestly induced to deliver or at the place
where the accused received such property. These provisions make it clear
that in the commercial world a party who is cheated and induced to deliver
property on the basis of a cheque which is dishonoured has the remedy of
instituting prosecution not only at the place where the cheque was
dishonoured which at times may be a place other than the place where the
inducement or cheating takes place but also at the place where the offence
of cheating was committed. To that extent the provisions of Chapter XIII of
the Code will bear relevance and help determine the place where the
offences can be tried.

28. We may at this stage refer to two other decisions of this Court which
bear some relevance to the question that falls for our determination. In
Sadanandan Bhadran v. Madhavan Sunil Kumar (1998) 6 SCC 514 a two-judge
bench of this Court held that clause (a) of proviso to Section 138 does not
disentitle the payee to successively present cheque for payment during the
period of its validity. On each such presentation of the cheque and its
dishonour a fresh right – and not cause of action – accrues in his favour.
He may, therefore, without taking pre-emptory action in exercise of such
right under clause (b) of Section 138 go on presenting the cheque so long
as the cheque is valid for payment. But once he gives a notice under clause
(b) of Section 138 he forfeits such right for in case of failure of the
drawer to pay the money within the stipulated time he would be liable for
the offence and the cause of action for prosecution will arise. The
correctness of this view was questioned in MSR Leathers v. S. Palaniappan &
Anr. (2013) 1 SCC 177 before a bench comprising of Markandey Katju and B.
Sudershan Reddy, J.J. who referred the issue to a larger bench. The larger
bench in MSR Leathers’s case (supra) overruled Sadanandan Bhadran (supra)
holding that there was no reason why a fresh cause of action within the
meaning of Section 142 (b) read with section 138 should not be deemed to
have arisen to the complainant every time the cheque was presented but
dishonoured and the drawer of cheque failed to pay the amount within the
stipulated period in terms of proviso to 138. This Court said:
“In the result, we overrule the decision in Sadanandan Bhadran’s case
(supra) and hold that prosecution based upon second or successive dishonour
of the cheque is also permissible so long as the same satisfies the
requirements stipulated in the proviso to Section 138 of the Negotiable
Instruments Act. The reference is answered accordingly. The appeals shall
now be listed before the regular Bench for hearing and disposal in light of
the observations made above.”

29. What is important is that in Sadanandan Bhadran (supra) this Court
had, on a careful analysis of Section 138, held that an offence is created
when a cheque is returned by the bank unpaid for any reasons mentioned
therein, although the proviso to Section 138 stipulates three conditions
for the applicability of the section. It is only upon satisfaction of the
three conditions that prosecution can be launched for an offence under
Section 138. This Court observed:

“On a careful analysis of the above section, it is seen that its main part
creates an offence when a cheque is returned by the bank unpaid for any of
the reasons mentioned therein. The significant fact, however, is that the
proviso lays down three conditions precedent to the applicability of the
above section and, for that matter, creation of such offence and the
conditions are: (i) the cheque should have been presented to the bank
within six months of its issue or within the period of its validity,
whichever is earlier; (ii) the payee should have made a demand for payment
by registered notice after the cheque is returned unpaid; and (iii) that
the drawer should have failed to pay the amount within 15 days of the
receipt of the notice. It is only when all the [pic]above three conditions
are satisfied that a prosecution can be launched for the offence under
Section 138. So far as the first condition is concerned, clause (a) of the
proviso to Section 138 does not put any embargo upon the payee to
successively present a dishonoured cheque during the period of its
validity. This apart, in the course of business transactions it is not
uncommon for a cheque being returned due to insufficient funds or similar
such reasons and being presented again by the payee after sometime, on his
own volition or at the request of the drawer, in expectation that it would
be encashed. Needless to say, the primary interest of the payee is to get
his money and not prosecution of the drawer, recourse to which, normally,
is taken out of compulsion and not choice. For the above reasons it must be
held that a cheque can be presented any number of times during the period
of its validity. Indeed that is also the consistent view of all the High
Courts except that of the Division Bench of the Kerala High Court in
Kumaresan1 which struck a discordant note with the observation that for the
first dishonour of the cheque, only a prosecution can be launched for there
cannot be more than one cause of action for prosecution.”
(emphasis supplied)

30. MSR Leathers (supra) also looked at Section 138 and held that a
complaint could be filed under Section 138 after cause of action to do so
had accrued in terms of clause (c) of the proviso to Section 138 which
happens no sooner the drawer of the cheque fails to make the payment of the
cheque amount to the payee within fifteen days in terms of clause (b) to
proviso to Section 138. MSR Leathers was not so much concerned with the
question whether the proviso stipulated ingredients of the offence or
conditions precedent for filing a complaint. It was primarily concerned
with the question whether the second or successive dishonour followed by
statutory notices and failure of the drawer to make payment could be made a
basis for launching prosecution against the drawer. That question, as
noticed above, was answered in the affirmative holding that successive
cause of action could arise if there were successive dishonours followed by
statutory notices as required under the law and successive failure of the
drawer to make the payment. MSR Leathers cannot, therefore, be taken as an
authority for determining whether the proviso stipulates conditions
precedent for launching a prosecution or ingredients of the offence
punishable under Section 138. Sadanandan Bhadran may have been overruled
to the extent it held that successive causes of action cannot be made a
basis for prosecution, but the distinction between the ingredient of the
offence, on the one hand, and conditions precedent for launching
prosecution, on the other, drawn in the said judgement has not been
faulted. That distinction permeates the pronouncements of this Court in
Sadanandan Bhadran and MSR Leathers. High Court of Kerala has, in our
view, correctly interpreted Section 138 of the Act in Kairali Marketing &
Processing Cooperative Society Ltd. V. Pullengadi Service Cooperative Ltd.
(2007) 1 KLT 287 when it said:

“It is evident from the language of Section 138 of the N.I. Act that the
drawer is deemed to have committed the offence when a cheque issued by him
of the variety contemplated under Section 138 is dishonoured for the
reasons contemplated in the Section. The crucial words are “is returned by
the bank unpaid”. When that happens, such person shall be deemed to have
committed the offence. With the deeming in the body of Section 138, the
offence is already committed or deemed to have been committed. A careful
reading of the body of Section 138 cannot lead to any other conclusion.
Proviso to Section138 according to me only insists on certain conditions
precedent which have to be satisfied if the person who is deemed to have
committed the offence were to be prosecuted successfully. The offence is
already committed when the cheque is returned by the bank. But the cause of
action for prosecution will be available to the complainant not when the
offence is committed but only after the conditions precedent enumerated in
the proviso are satisfied. After the offence is committed, only if the
option given to avoid the prosecution under the proviso is not availed of
by the offender, can the aggrieved person get a right or course of action
to prosecute the offender. The offence is already deemed and declared but
the offender can be prosecuted only when the requirements of the proviso
are satisfied. The cause of action for prosecution will arise only when the
period stipulated in the proviso elapses without payment. Ingredients of
the offence have got to be distinguished from the conditions precedent for
valid initiation of prosecution.”

The stipulations in the proviso must also be proved certainly before the
offender can be successfully prosecuted. But in the strict sense they are
not ingredients of the deemed offence under the body of Section 138 of the
N.I. Act, though the said stipulations; must also be proved to ensure and
claim conviction. It is in this sense that it is said that the proviso does
not make or unmake the offence under Section 138 of the N.I. Act. That is
already done by the body of the Sections. This dispute as to whether the
stipulations of the proviso are conditions precedent or
ingredients/components of the offence under Section 138 of the N.I. Act may
only be academic in most cases. Undoubtedly the ingredients stricto sensu
as also the conditions precedent will have to be established satisfactorily
in all cases. Of course in an appropriate case it may have to be considered
whether substantial compliance of the conditions precedent can be reckoned
to be sufficient to justify a conviction. Be that as it may, the
distinction between the ingredients and conditions precedent is certainly
real and existent. That distinction is certainly vital while ascertaining
complicity of an indictee who faces indictment in a prosecution under
Section 138 with the aid of Section 141 of the N.I. Act. That is how the
question assumes such crucial significance here.”

31. To sum up:

(i) An offence under Section 138 of the Negotiable Instruments Act, 1881
is committed no sooner a cheque drawn by the accused on an account being
maintained by him in a bank for discharge of debt/liability is returned
unpaid for insufficiency of funds or for the reason that the amount exceeds
the arrangement made with the bank.
(ii) Cognizance of any such offence is however forbidden under Section 142
of the Act except upon a complaint in writing made by the payee or holder
of the cheque in due course within a period of one month from the date the
cause of action accrues to such payee or holder under clause (c) of proviso
to Section 138.
(iii) The cause of action to file a complaint accrues to a
complainant/payee/holder of a cheque in due course if
(a) the dishonoured cheque is presented to the drawee bank within a
period of six months from the date of its issue.

(b) If the complainant has demanded payment of cheque amount within thirty
days of receipt of information by him from the bank regarding the dishonour
of the cheque and

(c) If the drawer has failed to pay the cheque amount within fifteen days
of receipt of such notice.

(iv) The facts constituting cause of action do not constitute the
ingredients of the offence under Section 138 of the Act.
(v) The proviso to Section 138 simply postpones/defers institution of
criminal proceedings and taking of cognizance by the Court till such time
cause of action in terms of clause (c) of proviso accrues to the
complainant.
(vi) Once the cause of action accrues to the complainant, the jurisdiction
of the Court to try the case will be determined by reference to the place
where the cheque is dishonoured.
(vii) The general rule stipulated under Section 177 of Cr.P.C applies to
cases under Section 138 of the Negotiable Instruments Act. Prosecution in
such cases can, therefore, be launched against the drawer of the cheque
only before the Court within whose jurisdiction the dishonour takes place
except in situations where the offence of dishonour of the cheque
punishable under Section 138 is committed along with other offences in a
single transaction within the meaning of Section 220(1) read with Section
184 of the Code of Criminal Procedure or is covered by the provisions of
Section 182(1) read with Sections 184 and 220 thereof.
32. Before parting with this aspect of the matter, we need to remind
ourselves that an avalanche of cases involving dishonour of cheques has
come upon the Magistracy of this country. The number of such cases as of
October 2008 were estimated to be more than 38 lakhs by the Law Commission
of India in its 213th Report. The result is that cases involving dishonour
of cheque is in all major cities choking the criminal justice system at the
Magistrate’s level. Courts in the four metropolitan cities and other
commercially important centres are particularly burdened as the filing of
such cases is in very large numbers. More than five lakh such cases were
pending in criminal courts in Delhi alone as of 1st June 2008. The
position is no different in other cities where large number of complaints
are filed under S.138 not necessarily because the offence is committed in
such cities but because multinational and other companies and commercial
entities and agencies choose these places for filing the complaints for no
better reason than the fact that notices demanding payment of cheque
amounts were issued from such cities or the cheques were deposited for
collection in their banks in those cities. Reliance is often placed on
Bhaskaran’s case to justify institution of such cases far away from where
the transaction forming basis of the dishonoured cheque had taken place. It
is not uncommon to find complaints filed in different jurisdiction for
cheques dishonoured in the same transaction and at the same place. This
procedure is more often than not intended to use such oppressive litigation
to achieve the collateral purpose of extracting money from the accused by
denying him a fair opportunity to contest the claim by dragging him to a
distant place. Bhaskaran’s case could never have intended to give to the
complainant/payee of the cheque such an advantage. Even so, experience has
shown that the view taken in Bhaskaran’s case permitting prosecution at any
one of the five different places indicated therein has failed not only to
meet the approval of other benches dealing with the question but also
resulted in hardship, harassment and inconvenience to the accused persons.
While anyone issuing a cheque is and ought to be made responsible if the
same is dishonoured despite compliance with the provisions stipulated in
the proviso, the Court ought to avoid an interpretation that can be used as
an instrument of oppression by one of the parties. The unilateral acts of a
complainant in presenting a cheque at a place of his choice or issuing a
notice for payment of the dishonoured amount cannot in our view arm the
complainant with the power to choose the place of trial. Suffice it to say,
that not only on the Principles of Interpretation of Statutes but also the
potential mischief which an erroneous interpretation can cause in terms of
injustice and harassment to the accused the view taken in the Bhaskaran’s
case needs to be revisited as we have done in foregoing paragraphs.
33. With the above observations, I concur with the order proposed by my
noble Brother, Vikramajit Sen, J.

……………….……….…..…J.
(T.S. Thakur)
New Delhi
August 1, 2014

 

, if in the light of above circumstances, the trial court
felt that the accused could get benefit of doubt, the said view cannot be
held to be illegal, improper or contrary to law. Hence, even though we are
of the opinion that in an appeal against acquittal, powers of the appellate
court are as wide as that of the trial court and it can review,
reappreciate and reconsider the entire evidence brought on record by the
parties and can come to its own conclusion on fact as well as on law, in
the present case, the view taken by the trial court for acquitting the
accused was possible and plausible. On the basis of evidence, therefore,
at the most, it can be said that the other view was equally possible. But
it is well established that if two views are possible on the basis of
evidence on record and one favourable to the accused has been taken by the
trial court, it ought not to be disturbed by the appellate court. In this
case, a possible view on the evidence of prosecution had been taken by the
trial court which ought not to have been disturbed by the appellate court.
The decision of the appellate court (the High Court), therefore, is liable
to be set aside.”

————————————————————————————————————————————————-

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.1671 OF 2011

|RAMAIAH @ RAMA |…..APPELLANT(S) |
| | |
|VERSUS | |
|STATE OF KARNATAKA |…..RESPONDENT(S) |

J U D G M E N T

A.K. SIKRI, J.

Laxmi, since deceased, was 14 years of age when she was
married to the appellant on 18.11.1992. Within six months of her marriage
i.e. on 22.05.1993, she died an unfortunate unnatural death. Her body was
recovered on 22.05.1993 at 4 p.m. from a well. It was cremated on that
day. However, four days thereafter i.e. on 26.05.1993, at 8 p.m., Mr.
Mariyappa (PW-1), maternal uncle of the deceased, lodged the complaint with
the Police Station and the case was registered as Cr. No.160/93.

2. As per his statement, it is he and his wife (PW-2) who brought up
Laxmi. At the age of 14, appellant’s father asked for the hand of Laxmi in
marriage with the appellant which resulted in solemnization of marriage
between deceased Laxmi and the appellant on 18.11.1992. PW-1 also stated
in his complaint that at the time of her marriage, there were negotiations
wherein the appellant and her parents had demanded a cash of Rs.5,000/- and
certain gold ornaments. PW-1 could arrange Rs.2,000/- cash only at that
time which was given by him in dowry at the time of marriage alongwith
certain gold ornaments, clothes and other articles. However, since they
were not able to pay the balance of Rs.3,000/-, Laxmi was harassed and
tortured, mentally and physically, because of non-fulfillment of dowry
demand and was asked repeatedly to bring the balance of Rs.3,000/- which
was due towards dowry amount. Laxmi had intimated about this demand and
harassment to her to PW-1 and PW-2 whenever she visited her parental house.
In spite of their best efforts, they could not comply with the said
demand. Few days before the fateful day, when she had come to her parents
house, PW-1 and PW-2 sent her back to her matrimonial home by convincing
her that they would pay the requisite amount soon after harvest of the
crops. It was further alleged that five days before her death, Laxmi had
complained about ill-treatment and harassment to her at the hands of the
appellant and his parents. However, on 22.05.1993 between 10.00 a.m. to
12.30 p.m., the maternal uncle was informed of the death of the deceased
due to drowning in a well belonging to one Bylappa. Her parents were also
informed of the said unnatural death of the deceased. According to the
informant, they did not accept the theory of accidental fall into the well
when deceased went to wash the clothes, as set up by the appellant and that
the accused persons after doing away with her life, had thrown her into the
well. It was also alleged that before they could reach the village of
accused, the dead body of deceased Laxmi was cremated and they did not have
an opportunity of seeing her face before she was cremated.

3. On the basis of the aforesaid complaint, a case was registered
against the husband (appellant herein), father-in-law, mother-in-law and
brother-in-law of the deceased Laxmi. No doubt, the initial complaint by
Mariyappa (PW-1) was to the effect that the accused persons murdered Laxmi
and then threw her into the well and also led the evidence of such crime to
disappear by burning the dead body much prior to the approval of maternal
uncle and parents of the deceased. However, after investigation, the
chargesheet was filed only for offences punishable under Sections 498-A,
304-B, 201 and 176 of the Indian Penal Code (for short ‘IPC’) read with
Sections 3, 4 and 6 (2) of the Dowry Prohibition Act. During trial, mother-
in-law and father-in-law of the deceased passed away. Brother-in-law of
the deceased, being a minor, was sent to Juvenile Offenders’ Court. Thus,
only the appellant was tried for the aforesaid change.

4. The prosecution examined 9 witnesses and 4 exhibits were marked. The
appellant gave his statement under Section 313 of the Code of Criminal
Procedure (for short ‘Cr.P.C.’) and thereafter one Ramakrishnappa was
examined as DW-1. After the conclusion of trial, arguments were heard by
the learned Additional Sessions Judge who returned his verdict vide
judgment dated 24.08.2001 acquitting the appellant of the charges with the
findings that prosecution was not able to prove the guilt of the appellant
beyond reasonable doubt. The State challenged the judgment of acquittal by
filing the appeal under Section 378 of Cr.P.C. in the High Court of
Karnataka. After re-appreciating the entire evidence on record, the High
Court has come to the conclusion that the appellant was in fact guilty of
offence punishable under Sections 3 & 4 of Dowry Prohibition Act as well as
under Sections 498-A, 304-B, 201 and 176 IPC. The judgment and order of
acquittal of trial court is, thereby, set aside by the High Court
pronouncing the following sentences on the appellant under the aforesaid
provisions:

“Having regarding to the facts and circumstances of this case, we
impose a sentence of five year of rigorous imprisonment and also minimum
fine of Rs.15,000/- for the offence punishable u/s 3 of the Dowry
Prohibition Act, in default, to undergo rigorous imprisonment for a period
of six months.

So far as offence u/s 4 of the Dowry Prohibition Act is concerned,
the accused is sentenced to undergo rigorous imprisonment for a period of 6
months and fine of Rs.5000/-, in default to undergo rigorous imprisonment
for a period of three months.

So far as offence u/s 498-A IPC is concerned, the accused is
sentenced to undergo two years rigorous imprisonment and fine of Rs.2000/-,
in default, to undergo rigorous imprisonment for a period of two months.

So far as Sec.304-B IPC, the accused shall undergo minimum sentence
of seven years rigorous imprisonment.

As far as offence under Section 201 IPC is concerned, the accused
shall undergo sentence for a period of one year.

So far as offence under Section 176 IPC, the accused shall pay a fine
of Rs.1000/-.

As the substantive sentence is imposed for the offence punishable u/s
304-B of IPC, all other sentences shall run concurrently.

The accused shall have the benefit of Sec. 428 Cr.P.C.”

5. Before we proceed to discuss the tenability of the merits of this
appeal preferred by the accused, we would like to state certain admitted
facts appearing in the case and would also like to discuss the approach of
the trial court as well as the High Court in giving conflicting verdicts.

6. As mentioned above, deceased Laxmi was 14 years of age at the time of
marriage and was hardly 15 years old when she met an unnatural death.
Marriage between the appellant and Laxmi was solemnized on 18.11.1992 and
within six months of the marriage, she died on 22.05.1993. As per the
prosecution, Shri Mariyappa (PW-1) learnt about the unnatural death of
Laxmi through the message sent from the village of the appellant between
10.00 a.m. and 12.30 p.m. on 22.05.1993. It is not in dispute that the
unnatural death of Laxmi was not intimated to the Police by her in-laws.
Though the parents of the deceased were informed, it is also not in dispute
that no postmortem was sought on the dead body of the deceased. The
appellant has also accepted the fact that as per the prevalent custom in
the community of the appellant as well as the complainant, dead bodies are
buried. However, in the present case, deceased Laxmi was cremated.

7. There is, however, some dispute about the presence of the parents of
the deceased at the time of cremation. As per the prosecution, Laxmi was
cremated before the parents or maternal uncle/aunt of the deceased could
reach the place of the appellant. On the other hand, the appellant
maintains that they had reached well in time and she was not only cremated
in their presence but it was with their concurrence that the body was
cremated and not buried.
8. The persistent and consistent defence put up by the appellant was
that it was an accidental death which occurred when Laxmi had gone to the
well to wash the clothes at about 8.00 a.m. on 22.05.1993 as she fell into
the well accidentally. As per the defence due to this fall, the cause of
death was asphyxia as a result of drowning. It was also the defence of
the appellant that though, as per the customs in their community the dead
bodies are buried, it was decided to cremate Laxmi because of unnatural
death and this decision was taken on the persuasion of the parents of the
deceased themselves. The defence had also taken a stand that the
appellant and his family even wanted to inform the Police about the
incident but her parents did not agree to the same. In so far as
allegations of demand of dowry by the appellant and his family are
concerned, there was a complete denial on the part of the accused persons.

9. A perusal of the judgment of the learned trial court would reflect
that it framed the following questions which had arisen for consideration:

“(1) Whether the prosecutor has proved that, the accused No.1 while
marrying with deceased Lakshmamma has demanded dowry from her parents for a
sum of Rupees Five Thousand and the ornaments and accordingly they had
given ornaments and cash of Rupees Two thousand as dowry, but he has not
summoned the same either to Lakshmamma or to her parents and thus committed
an offence punishable under section 3, 4 and 6 of Dowry Prevention Act ?

(2) Whether the Prosecutor has proved that, after the marriage Lakshmamma
started marital life with 1st accused, the first accused demanding his wife
Lakshmamma to bring the remaining dowry amount of Rupees Three Thousand
from her parents and started giving pinpricks and thus committed an offence
punishable under section 498 (A) of Indian Penal Code?

(3) Whether the prosecutor has proved that, the 1st accused was giving
more pinpricks to his deceased wife and on that reason on 22.05.1993 she
has committed suicide. Hence he has committed an offence punishable under
section 304 (B) of Indian Penal Code?

(4) Whether the Prosecutor has proved that, the 1st accused with an
intention to destroy the evidence has removed the dead body of Lakshmamma
from the well and burn her body and thus committed an offence punishable
under section 201 of the Indian Penal Code?

(5) Whether the Prosecutor has proved that, the 1st accused intentionally
has not informed the matter to the concerned officers about the suicide
committed by his wife Lakshmamma and thus committed an offence punishable
under section 176 of the Indian Penal Code?

(6) What order?

10. Dealing with question No.1, which pertains to the allegation
regarding demand of dowry, the trial court concluded that allegation of
demand of dowry was not true and in arriving on this conclusion, it was
swayed by the following factors:

(1) No elders or seniors had come forward and given evidence even when it
was stated that dowry was given in their presence.

(2) Further, there was no written documents before the Court in this
regard.

(3) None of the villagers had led their evidence before the Court with
regard to demand and receiving of dowry.

(4) PW-1 in his complaint had stated that prior to the marriage,
discussions were held wherein accused No.1 (father of the appellant) had
demanded a sum of Rs.5,000/- cash and ornaments. However, PW-8, Police Sub-
Inspector who received the complaint, admitted in his cross-examination
that this fact was not mentioned in the complaint (Ex.P/1). He also
admitted that in the complaint, it was also not mentioned that PW-1 would
pay the remaining dowry after few days. He also admitted that the averment
of PW-1 that two days before the marriage he had given Rs.2,000/- and had
told that he would give remaining Rs.3,000/- at the time of Shivratri
festival was also not mentioned in Ex.P/1.

(5) The trial court disbelieved the statement of PW-1 regarding payment of
Rs.2,000/- and ornaments etc. because of the reason that he had stated in
his cross-examination that he had got 3 acres of land which is dry land and
he has to maintain his family from his income with no other source of
income. Therefore, he was not capable of giving the aforesaid money and
ornaments.

(6) The trial court further noted that as per PW-1 and PW-3, Laxmi was
very beautiful girl and that was the reason the appellant married Laxmi as
he got attracted by her beauty. PW-1 and PW-3 also admitted that the
accused persons had incurred the marriage expenses and the marriage was
also performed at the residence of the accused/appellant.

(7) The P.W.1 Mariyappa in his cross-examination stated that, he had given
cash and ornaments to the bride and bride groom as per the customs in their
community. In his examination-in-chief he stated that, the 2nd accused
Venkatappa demanded the dowry. The 2nd accused had died. He in his
examination-in-chief had not stated about dowry demand by the appellant.
To the same effect is the testimony of PW-2, wife of PW-1 who categorically
stated that there was a custom of giving silver and gold ornaments and
clothes; the ornaments given were got prepared much prior to the marriage
of Laxmi; the alleged demand of dowry was made by the parents of groom and
his brother i.e. accused Nos. 2 to 4 and did not state about the demand of
dowry by the appellant. Even, PW-3, natural mother of Laxmi deposed on the
identical lines in respect of the dowry demand.

11. On that basis, the trial court arrived at the conclusion that in the
absence of any evidence, oral or documentary, the chances are that whatever
cash, clothes or ornaments were given at the time of marriage, was as per
the prevailing customs in the community and it was not the result of any
demand made by the appellant.

12. In so far as question Nos.2 and 3 are concerned, they were taken up
together by the trial court. In the first instance, the trial court
pointed out that though the complainant got the information about the death
of Laxmi on 22nd May, 1993, he lodged delayed complaint on 26th May, 1993
i.e. four days thereafter. From the statement of PW-1 in the cross-
examination that Laxmi was staying in her matrimonial house and visited her
parental house 5-6 times alongwith her husband and even stayed there with
her husband for some days and also from the admission of PW-1 that even
they were visiting matrimonial house of Laxmi and had visited her house for
5-6 times within a span of six months, the trial court observed that it was
an indication that the relationship of husband and wife was cordial and
with mutual love towards each other. Even, PW-2 and PW-3 had admitted
these facts in their cross-examination. The trial court further observed
that when the giving of dowry on the demand of the accused persons was not
established, it was not possible to believe that they were demanding the
alleged remaining dowry amount of Rs.3,000/- and giving pinpricks to her
for not fulfilling the said demand. According to the trial court, it was
significant that PW-3 who is the natural mother of the deceased did not
even state that Laxmi was being harassed for not bringing the balance dowry
amount. She had rather admitted that her daughter was happy for the first
three months and also accepted in her cross-examination that she had not
told the Police about living peaceful life only for three months. She also
admitted that she never told the Police about giving of dowry of Rs.2,000/-
and demand of balance amount which remained unpaid. The trial court
analysed the testimony of PW-4, PW-5 and PW-6 on this aspect and pointed
out that the allegation of demand of dowry could not be proved from their
testimony either. The discussion on this aspect is concluded in the
following manner:

“(27) After the marriage during the period of 6 months it was not
mentioned in the complaint that the accused have assaulted Lakshmamma
physically and thrown out of the house nor stated the same before the
court. Neither the villagers wherein the accused are residing nor their
neighbors have given any evidence before the court about pinpricks meted
out to her. As against which D.W.1 Ramakrishnappa, aged 56 years, said
that, from the beginning till the death of Lakshamma the accused persons
looked after here well and not given any pinpricks to her, he further told
that on that day she came to well for washing the cloth and due to slip of
her leg she fell in the well and he came to know about the same. In his
cross-examination no other statement was given on behalf of prosecution.

(28) It is an arranged marriage in the presence of elders, in the event of
giving any pinpricks about dowry harassment, this matter would have been
brought to the notice of elders and convene a panchayath. But it never
revealed anywhere about conveying the panchayath. Hence it is hereby seen
that the accused or her husband had not given pinpricks either in the
matter of dowry or in any other matter. It cannot be said that she has
committed for the said reason. Hence I answer both the questions
Negatively.”

13. The aforesaid was the raison d’etre which led to the acquittal of the
appellant by the trial court. The High Court has, however, given a
different glance to the entire matter. According to it, the aforesaid
approach of the trial court was erroneous in law as well as in appreciation
of the evidence on record. After taking note of the fact that Laxmi died
within six months of her marriage and it was an unnatural death, the High
Court has lamented on the conduct of the appellant and has arrived at the
conclusion that it was the appellant who was responsible for the death of
Laxmi and found him guilty of offence under Section 304-B of IPC. The High
Court has also accepted the version of the prosecution that Laxmi was
harassed and humiliated on account of non fulfillment of the demand of
dowry made by the appellant and, therefore, presumption under Section 113-B
of the Evidence Act was attracted. As per the High Court, the appellant
has not been able to lead any satisfactory evidence to dislodge this
presumption. The infirmities found in the depositions of PW-1 to PW-5 by
the trial court have been brushed aside and discarded by the High Court as
irrelevant and perverse. The High Court held that it would be impossible
to expect any party to the marriage talks to keep a record of demand and
payment of dowry as if it was a commercial transaction and, therefore, the
absence of documentary evidence in this regard should not have weighed with
the trial court. The High Court also observed that there was no admission
made by PW-1 that even without the alleged demand of dowry, he would have
given customary articles like clothes and ornaments and no such customary
practice was indicated. The finding of the trial court that the case of
the prosecution regarding demand and payment of dowry was not proved in the
absence of anyone from the village of the accused is also brushed aside by
observing that such a demand and payment would not be made public inasmuch
as such talks would be within closed doors and would be within the
knowledge of the parties to the marriage and kith and kin of the bride and
bridegroom. Further, apart from PW-1 to PW-3, PW-4, who is the neighbour
of PW-1 and PW-2, supported the version of the demand of dowry and the
harassment of Laxmi at the hands of the appellant and his family members.

14. Due to the aforesaid divergent and conflicting outcome of the
proceedings in the two courts below, we have gone through the testimony of
these witnesses. After examining the record and going through the reasons
recorded by both the courts below, we are inclined to accept conclusions
reached by the trial court as we are of the view that the High Court
committed grave error in ignoring and glossing over various contradictions
in the testimonies of PW-1 to PW-5 which were pointed out by the trial
court.

15. At the outset, we may record that some of the comments of the High
Court deprecating few of the reasons recorded by the trial court in support
of its findings are fully justified. The High Court is correct in its
observation that it was not appropriate for the trial court to expect
documentary evidence regarding acceptance of dowry as generally such a
record would not be kept since it was not a commercial transaction. The
High Court also appears to be justified in its observation that non
production of the villagers to prove the dowry demand would not be fatal.
We have eschewed and discarded these reasons assigned by the trial court.
At the same time, it is necessary to find out as to whether the evidence of
these witnesses (PW-1 to PW-3) is worthy of credence, on this aspect. We
find that there are certain very glaring and weighty factors which compel
us to disbelieve the prosecution version on this account.

16. In the present case, it would be prudent to start the discussion by
taking note of the conduct of the maternal uncle (PW-1), his wife (PW-2)
and natural mother (PW-3) of the deceased. They accept that information
about the death of Laxmi was received by them between 10.00 a.m. to 12.30
p.m. on 22.05.1993. They also accept the fact that they had reached the
place of occurrence. Body of the deceased was cremated on 22.05.1993.
There is some dispute as to whether these persons were present at the time
of cremation. According to them, deceased was cremated before they reached
the village of the appellant. To falsify this position taken by the
prosecution through these witnesses, the learned counsel for the appellant
had taken us to the evidence of PW-8 who had drawn Mahazar near the well.
This Mahazar coupled with the statement of PW-8 is a very significant piece
of evidence which has considerable effect in denting the creditworthiness
of the testimony of these witnesses. As per PW-8 himself, when he had
reached the spot, it was the mother of the deceased who pointed out the
place where the dead body was lying. This assertion amply demonstrates
that mother of the deceased had known where the body was kept and she along
with PW-1 and PW-2 had reached the place of occurrence before the dead body
was cremated. Relying upon this evidence, the trial court has disbelieved
the story of the prosecution that Laxmi was cremated even before these
persons had reached the village of the appellant. Strangely, the High
Court has discarded Mahazar drawn by PW-8 by giving a spacious reason viz.
it was not an exhibited document before the Court, little realising that
this was the document produced by the prosecution itself and even without
formal proof thereto by the prosecution, it was always open for the defence
to seek reliance on such an evidence to falsify the prosecution version.
Moreover, PW-8 has specifically referred to this document in his evidence.
It is also a matter of record that a specific suggestion was made to PW-3
(mother of the deceased) in the cross-examination to the effect that it is
she who had pointed out the place of the dead body lying near the well to
the Police personnel. The version of PW-1 to PW-3 that they reached the
village of the appellant after Laxmi had already been cremated, does not
inspire confidence and appears to be mendacious.

17. In the aforesaid circumstances, we have to proceed on the basis that
PW-1 to PW-3, on coming to know of the death of Laxmi, had reached the
village of the appellant when the dead body was still lying near the well
from where it was extracted. If the body was cremated thereafter, and not
buried, it can clearly be inferred that same was done with consent, express
or implied, of the complainant namely maternal uncle and the mother of the
deceased. It can also be inferred that parties had decided at that time
that matter be not reported to the Police and body be cremated. To say it
otherwise, by accepting the version of the prosecution, would lead to some
absurdities. It would mean that when maternal uncle or aunt as well as
mother of Laxmi were present and had seen the dead body lying at the spot,
they objected to the body being cremated. They also wanted Police to be
informed. If it was so, why they did not put up any resistance? We have to
keep in mind that these family members of Laxmi have come out with the
allegation that Laxmi was harassed as well as mentally and physically
tortured because of non fulfillment of dowry demand. In such a scenario,
they would not have remained silent and mute spectators to the events that
followed even when they were not to their liking. Not only this conduct
belies their version, another weighty factor is that the complainant
remained silent about these happenings for a period of 4 days and lodged
the report with the Police only on 26.05.1993 when they came out with the
allegations of demand of dowry and harassment.

18. We are conscious of the fact that in such cases, sometimes there may
be delay in lodging the FIR for various valid reasons. However, it is
important that those reasons come on record. There is no explanation worth
the name given by the complainant as to why the complainant maintained
stoic silence. In this backdrop, the testimony of these witnesses alleging
dowry demand has to be tested more stringently and with some caution. On
that touchstone, when we analyse the statements, we find the contradictions
therein, as pointed out by the learned trial court, become very appealing
and meaningful.

19. With the aforesaid observations, we proceed to discuss the first
specific charge under Section 498-A of the IPC relating to the demand of
dowry. We have already stated the reasons which prevailed with the trial
court in not accepting the prosecution version of demand of dowry by the
appellant herein, as well as the reasons which influenced the High Court to
take a contrary view. After going through the evidence of PW-1 to PW-3 as
well as PW-4 to PW-6, we find that the trial court correctly appreciated
and analysed the evidence of these witnesses. In the first instance, it
needs to be recorded with due emphasis that none of the witnesses had made
any specific allegation for the demand of the dowry in so far as the
appellant is concerned. The prosecution also could not establish that any
dowry articles were given at the time of marriage. On the contrary, it is
accepted by these witnesses that the appellant had asked for the hand of
Laxmi because of her beauty by which he was attracted. We are not
suggesting that this reason, by itself, is sufficient to rule out the
possibility of demand of dowry. At the same time, this circumstance when
seen with all other attendant factors surfacing on the record of this case,
makes it somewhat difficult to swallow the prosecution version that there
would be a demand of dowry as a precondition for marriage. Other attendant
circumstances also negate the theory of demand. PW-1 and PW-3 have
themselves admitted that it is the accused persons who had incurred all the
marriage expenses and also admitted that marriage was performed at the
residence of the appellant. This would be because of the reason, as
pleaded by the appellant in support of which the appellant led evidence as
well, that the family members of Laxmi were poor persons and had not
sufficient means to even incur the expenditure on the wedding of Laxmi.
Even in respect of alleged demand of dowry, PW-1 Mariyappa stated that the
so-called demand was by the father of the appellant and did not at all
accuse the appellant in this behalf. To the same effect is the testimony
of PW-2.

20. When the demand of dowry and giving of dowry at the time of marriage
has not been proved, further version of the prosecution witnesses that
there was a demand for payment of remaining amount of Rs.3,000/- and
harassment of Laxmi on that account, also becomes doubtful. It has come on
record, and can be clearly discerned from the reading of the statements of
the material witnesses viz. the family members of Laxmi, that during this
short period of 6 months of the marriage, she had visited her matrimonial
house 5-6 times. Pertinently, her visits were alongwith her husband. The
couple had even stayed in the parental house of Laxmi for some days on few
occasions. This indicates that the relationship of husband and wife was
cordial. In this backdrop, evidence of PW-3, mother of the deceased Laxmi,
assumes great significance, who has not even stated that her daughter was
harassed for not bringing the alleged balance dowry amount. On the
contrary, she accepted that her daughter was happy for first 3 months. So
much so in her statement to the Police, she had not told the Police about
living peaceful life only for 3 months. She did not tell the Police about
giving of dowry of Rs.2,000/- and demand of balance amount coupled with
harassment because of death.

21. In addition to the aforesaid material aspects which are highlighted
from the evidence of the prosecution witnesses, most important feature
which is accepted by these witnesses is that in so far as the appellant
individually is concerned, there was no demand of dowry by him. In the
absence of any particular allegation against the appellant in this behalf,
would be improper to convict the appellant under Section 498-A IPC.

22. We find that the High Court has ignored the aforesaid features which
are elaborately discussed in the judgment of the trial court, culling from
the depositions of the prosecution witnesses. The High Court, while
accepting the version of the prosecution on this aspect, namely, Laxmi was
harassed and humiliated because of demand of dowry made by the appellant,
has embarked on the discussion which is general and non-specific in
nature. Even if there is little evidence, that is too infinitesimal to
convict the appellant, more so when that is not only self contradictory but
also surrounded by other weighty circumstances that go in favour of the
accused. Once we find that the demand of dowry and harassment on that
account is not proved beyond reasonable doubt, question of invocation of
Section 113 Evidence Act would not arise. We feel that the High Court has
been totally influenced by the fact that Laxmi had died within 6 months of
her marriage and it was an unnatural death.

23. No doubt, it was so. But only for this reason, the High Court could
not have convicted the appellant by finding him guilty of offence under
Section 304-B of IPC as well by primarily relying upon the provisions of
Section 113-B of the Evidence Act.

24. We are conscious of the fact that it was an unfortunate demise of
Laxmi who died within 6 months of the marriage. However, at the same time,
whether her death was accidental as claimed by the defence or it was a
suicide committed by Laxmi, is not clearly established. Had the
allegations of demand of dowry and harassment of Laxmi were established
thereby making it an offence under Section 498-A of IPC, things would not
have been different. However, when we do not find dowry demand and
harassment of Laxmi to be established, the inferences drawn by the High
Court taking the aid of Section 113-B of the Evidence Act also deserve to
be discarded. Section 113-B of the Evidence Act reads as under:

“Presumption as to dowry death:- When the question is whether a
person has committed the dowry death of a woman and it is shown that soon
before her death such woman had been subjected by such person to cruelty or
harassment for, or in connection with, any demand for dowry, the court
shall presume that such person had caused the dowry death.”

A plain reading of the aforesaid provision would demonstrate that to
attract the presumption as to dowry death stated in the aforesaid
provision, it is necessary to show that soon before her death, she had been
subjected by such persons to cruelty or harassment for, or in connection
with, any demand for dowry. When this essential ingredient has not been
established in the present case, the question of drawing any presumption by
invoking of the aforesaid provision would not arise.

25. In this backdrop, we revert back to the conduct of the mother of
Laxmi, as well as her maternal uncle and his wife (i.e. PW-1 and PW-2),
which becomes very crucial. As per our discussion above, it is clear that
they had reached the place of death, after receiving the information, much
before Laxmi was cremated. Once that is accepted, as it is established
from record and particularly Mahazar drawn by PW-8, further events happen
thereafter are to be analysed keeping in mind this fundamental aspect. In
fact, the entire time of thinking of the High Court proceeds on the premise
that Laxmi was cremated even before her parents and uncle/aunt reached the
appellant’s village. Entire edifice based on thereupon crumbles once this
finding is found to be erroneous. As we are of the opinion that the
finding of the trial court is correct thay they had reached the village
well in time and body was cremated in their presence, further sequence of
events has to seen in that hue. It was told by the accused persons that
Laxmi had died accidentally falling into the well with the active or
passive consent of PW-1 to PW-3, Laxmi was cremated. Her last rites were
performed in which these persons participated. They accepted the version
of the accused persons, at that time. It is only after a period of 3 days
that the complaint is filed with the allegations of demand of dowry by the
accused persons; harassment of Laxmi on account of alleged non-payment of
the balance dowry; and her unnatural death. We state at the cost of the
repetition that once it is established that the body of Laxmi was cremated
in the presence of these persons, it lends credence to the defence version
that there was an acceptance by them at that time that Laxmi had died due
to accidental slip in the well and all of them decided to cremate Laxmi and
not to report the matter to the Police. Otherwise it would baffle any
right minded person as to why they did not inform the Police or did not put
up any resistance.

26. Let us test the veracity of the version of these persons from another
angle. If there was harassment and cruel treatment given to Laxmi by her
in-laws, on reaching the place of the accused persons after receiving the
unnatural demise of Laxmi, they would have perceived the same to have
happen in mysterious circumstances. In such a situation, they would not
have kept quite and inform the Police immediately. They would have also
insisted on the postmortem of the body of Laxmi to find out the cause of
death. That would be the natural reaction of any such persons who believe
that their daughter had faced harassment on account of non-fulfillment of
the dowry demand and it would be fresh in their mind, if their version is
to be believed that just 5 days before the death, Laxmi had complained of
the cruel behaviour of her in-laws. No such thing happened, on the
contrary, body of Laxmi was cremated in their presence and after performing
the last rites, they turned back to their home quietly. It is 4 days
thereafter that they thought of lodging the complaint to the Police.

27. In the case of State of Andhra Pradesh v. M. Madhusudhan Rao, 2008
(14) SCALE 118, in similar circumstances, the Court termed such a delay as
‘embellishment and exaggeration’ though in that case, it was an abnormal
delay of 1 month. The principle stated therein was equally applied herein
as well which would be clear from the following observation herein:

“18. Having gone through the depositions of PW-1 and PW-3, to which
out attention was invited by learned Counsel for the State, we are
convinced that in the light of the overall evidence, analysed by the High
Court, the order of acquittal of the respondent is well merited and does
not call for interference, particularly when the First Information Report
was lodged by the complainant more than one month after the alleged
incident of forcible poisoning. Time and again, the object and importance
of prompt lodging of the First Information Report has been highlighted.
Delay in lodging the First Information Report, more often than not, results
in embellishment and exaggeration, which is a creature of an afterthought.
A delayed report not only gets bereft of the advantage of spontaneity, the
danger of the introduction of coloured version, exaggerated account of the
incident or a concocted story as a result of deliberations and
consultations, also creeps in, casting a serious doubt on its veracity.
Therefore, it is essential that the delay in lodging the report should be
satisfactorily explained.

19. In the present case, as noted supra, First Information Report in
regard to the alleged occurrence on 19th April, 1996 was lodged on 22nd
May, 1996. Admittedly after her discharge from the hospital on 22nd April,
1996, the complainant went to her parents’ house and resided there. In her
testimony, the complainant has deposed that since no one from the family of
the accused came to enquire about her welfare, she decided to lodge the
First Information Report. No explanation worth the name for delay in
filing the complaint with the police has come on record. We are of the
opinion that this circumstance raises considerable doubt regarding the
genuineness of the complaint and the veracity of the evidence of the
complainant (PW-1) and her father (PW-3), rendering it unsafe to base the
conviction of the respondent upon it. Resultantly, when the substratum of
the evidence given by the complainant (PW-1) is found to be unreliable, the
prosecution case has to be rejected in its entirety.

28. We may hasten to add here that many times in such type of cases,
there can be reasons for keeping quite at the given time and not reporting
the matter immediately. Therefore, we are conscious of the legal position
that delay per se may not render prosecution case doubtful as there may be
various reasons for lodging the FIR with some delay (see Sahebrao and
another v. State of Maharashtra, (2006) 9 SCC 794. Thus, there is no hard
and fast rule that any delay in lodging the FIR would automatically render
the prosecution case doubtful. However, what is emphasised is that if that
was so, it was necessary for the prosecution to at least come forward with
the explanation as to why the complainant kept quite and why he did not
report the matter to the Police immediately. No such explanation is coming
forward in the present case. Moreover, in the instant case, the delay is
seen as fatal when examined in juxtaposition with other material that has
come on record and discussed above, which shakes the veracity of
prosecution case, bringing it within the four corners of doubtful
prosecution story.

29. We find that when going by all these considerations, the trial court
gave benefit of doubt to the appellant and acquitted him, in the case of
reversal of such a verdict of acquittal, the High Court should have
specifically dealt with the aforesaid circumstances weighing in favour of
the appellant and should have given suitable justification for overturning
the verdict of acquittal. The approach of the High Court, as the appellate
court, while dealing with the case of acquittal is stated by this Court in
the case of Harbans Singh v. State of Punjab, (1962) Supp. 1 SCR 104, in
the following manner:
“8. The question as regards the correct principles to be applied by a
Court hearing an appeal against acquittal of a person has engaged the
attention of this Court from the very beginning. In many cases, especially
the earlier ones, the Court has in laying down such principles emphasised
the necessity of interference with an order of acquittal being based only
on “compelling and substantial reasons” and has expressed the view that
unless such reasons are present an Appeal Court should not interfere with
an order of acquittal. (Vide Suraj Pal Singh v. The State (1952) SCR 194;
Ajmer Singh v. State of Punjab MANU/SC/0042/1952 : 1953CriLJ 521; Puran v.
State of Punjab MANU/SC/0090/1952 : AIR 1953 SC 459). The use of the words
“compelling reasons” embarrassed some of the High Courts in exercising
their jurisdiction in appeals against acquittals and difficulties
occasionally arose as to what this Court had meant by the words “compelling
reasons”. In later years the Court has often avoided emphasis on
“compelling reasons” but nonetheless adhered to the view expressed earlier
that before interfering in appeal with an order of acquittal a Court must
examine not only questions of law and fact in all their aspects but must
also closely and carefully examine the reasons which impelled the lower
courts to acquit the accused and should interfere only if satisfied after
such examination that the conclusion reached by the lower court that the
guilt of the person has not been proved is unreasonable. (Vide Chinta v.
The State of Madhya Pradesh (Criminal Appeal No. 178 of 1959 decided on 18-
11-60); Ashrafkha Haibatkha Pathan v. The State of Bombay (Criminal Appeal
No. 38 of 1960 decided on 14-12-60).

9. It is clear that it emphasising in many cases the necessity of
“compelling reasons” to justify an interference with an order of acquittal
the Court did not in any way try to curtail the power bestowed on appellate
courts under s. 423 of the Code of Criminal Procedure when hearing appeals
against acquittal; but conscious of the intense dislike in our
jurisprudence of the conviction of innocent persons and of the facts that
in many systems of jurisprudence the law does not provide at all for any
appeal against an order of acquittal the Court was anxious to impress on
the appellate courts the importance of bestowing special care in the
sifting of evidence in appeal against acquittals. As has already been
pointed out less emphasis is being given in the more recent pronouncements
of this Court on “compelling reasons”. But, on close analysis, it is clear
that the principles laid down by the Court in this matter have remained the
same. What may be called the golden thread running through all these
decisions is the rule that in deciding appeals against acquittal the Court
of Appeal must examine the evidence with particular care, must examine also
the reasons on which the order of acquittal was based and should interfere
with the order only when satisfied that the view taken by the acquitting
Judge is clearly unreasonable. Once the appellate court comes to the
conclusion that the view taken by the lower court is clearly an
unreasonable one that itself is a “compelling reason” for interference.
For, it is a court’s duty to convict a guilty person when the guilt is
established beyond reasonable doubt, no less than it is its duty to acquit
the accused when such guilt is not so established.”

30. This very principle of law was formulated by the Court in M.
Madhusudhan Rao (supra) in the following manner:

“13. There is no embargo on the appellate court to review, reappreciate or
reconsider the evidence upon which the order of acquittal is founded. Yet,
generally, the order of acquittal is not interfered with because the
presumption of innocence, which is otherwise available to an accused under
the fundamental principles of criminal jurisprudence that every person
shall be presumed to be innocent unless he is proved guilty by a court of
law, gets further reinforced and strengthened by his acquittal. It is also
trite that if two views are possible on the evidence adduced in the case
and the one favourable to the accused has been taken by the trial court, it
should not be disturbed. Nevertheless, where the approach of the lower
court in considering the evidence in the case is vitiated by some manifest
illegality or the conclusion recorded by the court below is such which by
some manifest illegality or the conclusion recorded by the court below is
such which could not have been possibly arrived at by any court acting
reasonably and judiciously and is, therefore, liable to the characterised
as perverse, then, to prevent miscarriage of justice, the appellate court
is obliged to interfere.

14. All these principles have been succinctly culled out by one of us
(C.K. Thakker, J.) in Chandrappa and Ors. v. State of Karnataka, (2007) 4
SCC 415.”

31. In Chandrappa (supra), which was followed in the aforesaid case, the
Court had observed:
“44. In our view, if in the light of above circumstances, the trial court
felt that the accused could get benefit of doubt, the said view cannot be
held to be illegal, improper or contrary to law. Hence, even though we are
of the opinion that in an appeal against acquittal, powers of the appellate
court are as wide as that of the trial court and it can review,
reappreciate and reconsider the entire evidence brought on record by the
parties and can come to its own conclusion on fact as well as on law, in
the present case, the view taken by the trial court for acquitting the
accused was possible and plausible. On the basis of evidence, therefore,
at the most, it can be said that the other view was equally possible. But
it is well established that if two views are possible on the basis of
evidence on record and one favourable to the accused has been taken by the
trial court, it ought not to be disturbed by the appellate court. In this
case, a possible view on the evidence of prosecution had been taken by the
trial court which ought not to have been disturbed by the appellate court.
The decision of the appellate court (the High Court), therefore, is liable
to be set aside.”

32. We thus, find that there were no solid and weighty reasons to reverse
the verdict of acquittal and to convict the appellant under the given
circumstances. Accordingly, we allow this appeal and set aside the
judgment of the High Court, holding that the appellant is not guilty of the
charges foisted against him.

33. During the pendency of this appeal, the appellant was enlarged on
bail vide order dated 31.03.2014. The bail bonds and sureties given by the
appellant are hereby discharged.

…………………………………..J.
(J. Chelameswar)

…………………………………..J.
(A.K. Sikri)
New Delhi;
August 7, 2014.

 

 

The PSS Act, 2007 provides for the regulation and supervision of payment systems in India and designates the Reserve Bank of India (Reserve Bank) as the authority for that purpose and all related matters. The Reserve Bank is authorized under the Act to constitute a Committee of its Central Board known as the Board for Regulation and Supervision of Payment and Settlement Systems (BPSS), to exercise its powers and perform its functions and discharge its duties under this statute.  The Act also provides the legal basis for “netting” and “settlement finality”. This is of great importance, as in India, other than the Real Time Gross Settlement (RTGS) system all other payment systems function on a net settlement basis.

Section 2(1) (i) of the PSS Act 2007 defines a payment system to  mean a system that enables payment to be effected between a payer and a beneficiary, involving clearing, payment or settlement service or all of them, but does not include a stock exchange (Section 34 of the PSS Act 2007 states that its provisions will not apply to stock exchanges or clearing corporations set up under stock exchanges).  It is further stated by way of an explanation that a “payment system” includes the systems enabling credit card operations, debit card operations, smart card operations, money transfer operations or similar operations.
All systems (except stock exchanges and clearing corporations set up under stock exchanges) carrying out either clearing or settlement or payment operations or all of them are regarded as payment systems. All entities operating such systems will be known as system providers. Also all entities operating money transfer systems or card payment systems or similar systems fall within the definition of a system provider. To decide whether a particular entity operates the payment system, it must perform either the clearing or settlement or payment function or all of them.

Under the PSS Act, 2007, dishonor of an electronic fund transfer instruction due to insufficiency of funds in the account etc., is an offence punishable with imprisonment or with fine or both, similar to the  dishonor of a cheque under the Negotiable Instruments Act 1881. Subject to complying with the procedures laid down under the PSS Act, 2007, criminal prosecution of defaulter can be initiated in such cases. This provision was introduced to discourage dishonour of   electronic payment instructions. (Section 25 of the Act).

IN THE HIGH COURT OF DELHI AT NEW DELHI

W.P.(CRL) 696/2008

DELHI COMMISSION FOR WOMEN ——–Petitioner

Through Ms. Aparna Bhat, Ms. Madhulika Mohta,

Advocates

Versus

DELHI POLICE ——–Respondent

Through Ms. Mukta Gupta, Standing Counsel for the

Coram:

HON’BLE THE CHIEF JUSTICE

HON’BLE MR. JUSTICE NEERAJ KISHAN KAUL

O R D E R

  1. 4.2009

Pursuant to the order dated 10.9.2008, Delhi Commission for

Women has filed draft guidelines to enable the authorities to

effectively tackle sexual offences including incest and child sexual

abuse offences. The guidelines have been prepared in consultation

with all departments, police and the judges of Delhi Higher Judicial

Service. A modified draft has also been placed on record keeping in

view of the suggestions made by the State as well as the Registry of

the High Court. Having considered the modified draft and also the

submissions made at the Bar, we issue the following guidelines to

police, hospitals/ doctors, Child Welfare Committees, Sessions Court, Magistrate Courts, Prosecutors and other concerned authorities. The

guidelines enumerated hereinafter shall be read in the context of the

following definitions:

“a. “Crises Intervention Centre” means a recognized agency,

appointed by the Delhi Police and the Delhi Commission for Women for

responding to calls of sexual assault at t6he police station to provide

counseling and other support services to victims of rape;

b. “Expert” means a person who is qualified and has experience

in dealing with cases of sexual violence;

c. “Guardian” includes besides the natural guardian, support

person or any person appointed by the Child Welfare

Committee for a specified period to take care of the victim

during the pendency of the trial;

d. “Rape Crises Cell” means a cell established under the Delhi

Commission for Women to provide legal assistance in the

cases of sexual assault who would coordinate the Crises

Intervention Centres and provide legal support to the victim

and her family;

e. “Support Person” means a person working in the capacity of a

counselor working with a recognized and registered crises

intervention centres, approved by the Delhi Commission for

Women; f. The expression “offence for the purpose of these guidelines

shall mean and include offences of rape, attempt to rate and

unnatural offences.

1) POLICE

a. Every Police Station shall have available round the clock a lady

police official/ officer not below the rank of Head Constable.

b. As soon as a complaint of the offence is received, the duty

officer receiving the complaint/ information shall call the lady

police official/ officer present at the police station and make the

victim and her family comfortable.

c. The duty officer, immediately, upon receipt of the complaint/

information intimate to the “Rape Crises Cell” on its notified

helpline number.

d. After making preliminary inquiry/ investigation, the Investigation

Officer along with the lady police official/ officer available, escort

the victim for medical examination.

e. The Assistant Commissioner of Police shall personally supervise

all investigation into the office.

f. The statement of victim shall be recorded in private, however,

the presence of family members while recording statement may

be permitted with a view to make the victim comfortable. In incest cases where there is a suspicion of complicity of the family

members in the crime such family members should not be

g. The Investigating Officer shall bring the cases related to “child in

need of care and protection” and the child victim involving in

incest cases to the Child Welfare Committee.

h. The accused should not be brought in the presence of victim

except for identification

i. Except the offences which are reported during the night no

victim of sexual offence shall be called or made to stay in the

police station during night hours. The Social Welfare

Department of the Government of NCT of Delhi shall ensure that

Superintendents of the Foster Hose for Women will provide

necessary shelter till formal orders are secured from the

concerned authorities.

j. The Investigating Officer shall endeavor to complete the

Investigation at the earliest and he shall ensure that in no case

the accused gets the undue advantage of bail by default as per

the provisions of Section 167 Cr.P.C. It is desirable that in cases

of incest the report under Section 173 Cr.P.C. is filed within 30

days. k. Periodically training to deal with rape cases should be provided

to the police officers, juvenile police officers, Welfare Officers,

Probationary Officers and Support persons. A Training Module

be prepared in consultation with the Delhi judicial Academy.

l. The Police should provide information to the Rape Crisis Cell

regarding the case including the arrest and bail application of the

accused, the date of filling of the investigation report before the

Magistrate;

m. The Police should keep the permanent address of the victim in

their file in addition to the present address. They should advise

the victim to inform them about the change of address in future.

n. Subject to the outcome of the W.P.(C) 2596/2007 titled Rajeev

Mohan Vs. State, pending before this Hon’ble Court in cases

where the victim informs the police about any threats received

by the accused family, the concerned DCP should consider the

matter and fresh FIR must be registered under Section 506 of

the Indian Penal Code.

II) DOCTORS/ HOSPITALS/ HEALTH DEPARTMENT

a. Special rooms to be set up in all government hospitals for

victims to be examined and questioned in privacy. b. A sexual assault evidence collection kit or sexual assault

forensic evidence (SAFE) kit consisting of a set of items used by

medical personnel for gathering and preserving physical evidence

following a sexual assault should be available with all the

Government Hospitals. A sexual assault evidence collection kit

should contain commonly available examination tools such as:

  • Detailed instructions for the examiner
  • Forms for documentation
  • Tube for blood sample
  • Urine sample container
  • Paper bags for clothing collection
  • Large sheet of paper for patient to undress over
  • Cotton swabs for biological evidence collection
  • Sterile water
  • Glass slides
  • Unwaxed dental floss
  • Wooden stick for fingernail scrapings
  • Envelopes or boxes for individual evidence samples
  • Labels

Other items needed for a forensic/ medical exam and treatment

that may be included in the rape kit are: • Woods lamp

  • Toluidine blue dye
  • Drying rack for wet swabs and/or clothing
  • Patient gown, cover sheet, blanket, pillow
  • Needles/ syringes for blood drawing
  • Speculums
  • Post-it Notes used to collect trace evidence
  • Camera (35 mm, digital, or Polaroid) film, batteries.
  • Medscope and/ or colcoscope
  • Microscope
  • Surgilube
  • Acetic acid diluted spray
  • Medications
  • Clean clothing and shower/ hygiene items for the victims

use after the examination

c. A detailed description of “Assault/ Abuse History” be

mentioned by the attending doctor on the MLC of the victim;

The doctor must ensure that the complete narration of the

history of the case detailed by the victim and her escort is

d. After the examination is complete the victim should be

permitted to wash up using toiletries provided by the hospital. The hospital should also have clothing to put on if her own

clothing is taken as evidence.

e. All hospitals should co-operate with the police and preserve

the samples likely to putrefy in their pathological facility till

such time the police are able to complete their paper work for

dispatch to forensic lab test including DNA.

III) CHILD WELFARE COMMITTEE

a) In cases of incest and child in need of care and protection,

the Child Welfare Committee shall examine the victim to

ascertain the nature of support she is getting from her

family and initiate steps for ensuring best interest of the

child. In such cases the Child Welfare Committee shall

conduct a home study to assess and ensure the safety of

the victim;

b) In cases where the child is placed in the shelter, the

Committee shall monitor the condition of the victim

c) In cases of incest, while the victim stays in the foster

home the family members should be allowed to meet the

victim only in the presence of the support person and care

be taken by the staff of the home that the meeting be not used to pressurize/ influence the victim to change for

d) Child Welfare Committee shall ensure that rehabilitation

facilities are provided to the victim in appropriate cases.

In cases of a prolonged stay, the victim should be given

educational and vocational training in order to enable the

victim to support herself after she leaves the foster home.

The Social Welfare Department and Child Welfare

Committee will develop and implement Foster Care

Services within two months.

e) Before passing any order of restoration of custody of child

to the family, the Child Welfare Committee shall conduct

an inquiry to assess the suitability of the victim being

restored to the family. The custody of the child will be

altered by the Child Welfare Committee only after

consultation with the stakeholders;

f) Child Welfare Committee shall ensure that the victim Is

provided with necessary medical and psychological aid

during her stay in foster home for the purpose of her

rehabilitation; g) Child Welfare Committee shall maintain a list of all registered

Foster Homes providing residential support, special services and

rehabilitation facilities to the victim.

IV PROSECUTORS

a) In cases where the child is placed in a shelter following the

orders of the Child Welfare Committee or a Metropolitan Magistrate,

the application seeking custody of the child made by the

parents/relatives of the victim should not be acceded to till such time,

the Public Prosecutor gets the status of the applicants verified with the

Rape Crisis Cell and also call for the records of the Child Welfare

Committee if it is not available.

V) COURTS

a) The Magistrate unless there are compelling reasons shall record

the statement of the victim under Section 164 Cr.P.C. on the day on

which the application is moved by the Investigating Officer. The

Magistrate before proceeding to record the statement shall ensure that

the child is made comfortable and she is free from any extraneous

b) An endeavour shall be made to commit such cases of offence to

the Court of Sessions expeditiously and preferably within 15 days.

c) The Hon’ble Supreme Court in Delhi Domestic Working Women

Forum Vs Union of India, 1995 (1) SCC 14 and reiterated by this

Hon’ble Court in Khem Chand Vs State of Delhi 2008 (4) JCC 2 497

had directed that the victim be provided with a counsel. The existing

practice of the victims being represented by a counsel from Rape Crisis

Cell may continue. In cases where the victim has a private lawyer,

she may be allowed to retain the private lawyer.

d) That as far as possible chief examination and cross examination

of the victim must be conducted on the same day;

e) The Additional Session Judge/District Judge shall maintain a

panel of psychiatrists, psychologists and experts in sign language etc.,

who would assist in recording the statement of witnesses as and when

requested by the Sessions Courts.

f) If it is brought to the notice of the Court from a support

person/Rape Crisis Cell Advocate/victim, regarding threats received by

the victim or her family members to compromise the matter, the judge

shall immediately direct the ACP to look into the matter and provide an

action taken report before the Court within 2 days. The Court must

ensure that protection is provided to the victim and her family.

g) In cases in which the witness is sent back unexamined and is

bound down, the Court shall ensure that at least the traveling

expenses for coming to and from for attending the Court are paid.

VI) SUPPORT SERVICES

a) A 24 hour helpline that can be contacted by the victims, police or

any member of the public will be created. The Commission shall notify

and widely publish its existing telephone number and that number will

be used till such time a toll-free number is made available.

b) The Rape Crisis Cell will have with them accredited support

services for shelter, social workers, counselors, mental health

professional, lawyers;

c) The list of these accredited support services will be provided to

the Prosecution Branch, the Commissioner of Police as well as to the

Registrar of this Hon’ble Court;”

2. The Commission shall prepare a brochure which will contain

these guidelines along with summary and directions passed by the

Supreme Court and this Court in Delhi Domestic Working Women’s

Forum Vs Union of India 1995 (1) SCC 14, Sakshi Vs Union of India

(2004) 5 SCC 518, Chairman Railway Board Vs Chandrima Das

(2000) 2 SCC 465 Sheeba Abidi Vs State & Anr. 113 (2004) DLT

125, Khem Chand Vs State of Delhi, 2008 (4) JCC 2,497, X(Ms.) Vs

State of NCT and Anr 149 (2008) DLT 194. The brochure shall be

prepared in consultation with the Registrar General of this Court and

learned Standing Counsel for the State Government so that it may be

circulated to all the departments/police/courts/ Child Welfare Committees/Hospitals/doctors/prosecutors to enable effective

implementation of the guidelines.

3. The brochure shall be maintained and kept with all the agencies/

authorities dealing with the victims of sexual assault and the

guidelines contained therein shall be strictly followed and

4. A copy of this order shall be circulated to all the Delhi

Government hospitals/Central Government hospitals and MCD

hospitals for enforcement of the guidelines and directions contained in

part II of the guidelines. The concerned Medical Superintendents of

the respective hospitals shall submit an action taken report to the

Registrar General of this Court within a period of two months. In so

far as the Child Welfare Committees are concerned, they shall file

quarterly action taken report(s) to the juvenile Justice Committee of

Delhi High Court.

5. Women’s Commission shall prepare a training module for

training of police officers, juvenile police officers, welfare officers,

probationary officers and support persons in consultation with the

Delhi Judicial Academy. The Principal, Police Training College, Delhi

shall hold periodical training programmes and ensure that all

concerned persons undergo training/sensitization programme in one

6. Learned Standing Counsel for the State Ms. Mukta Gupta states

that the draft rules for the foster care services have been prepared

and the rules will be notified within a period of two months from today. 7. We are informed by the counsel for Delhi Women Commission

that pursuant to the directions issued by the Supreme Court in Delhi

Domestic Working Women’s Forum Vs Union of India (Supra)

the Commission has submitted a draft scheme to the Delhi

Government for payment of compensation to victims of rape which is

under consideration of the State Government. The State Government

is directed to consider the draft scheme submitted by the Commission

and file a status report in this Court within a period of two months.

List on 29th July, 2009 for further directions.

CHIEF JUSTICE

 

NEERAJ KISHAN KAUL, J

APRIL 23, 2009

Flagging the issue in a judgment on Saturday, Justice Kailash Gambhir said rape cases are being used as “a weapon for vengeance and vendetta” to harass and even force a boy to marry.

While granting anticipatory bail to a man facing rape charges from a woman claiming to be his wife, HC added that in many cases woman first has consensual sex but later files rape case against her boyfriend when the relationship breaks up in order to force him to get married, making not only “mockery” of the marriage but also inflating the statistics of rape cases.

“Many of the cases are being reported by those women  who have consensual physical relationship with a man but when the relationship breaks due to one reason or the other, the women use the law as a weapon for vengeance and personal vendetta to extort money and sometimes even to force the boy to get married to her,” HC said advocating extreme caution to judges who should “cautiously examine the intentions of the girl to find out whether the rape complaint is genuine or has malafide motives”.

Earlier this week, Justice G P Mittal and Justice Suresh Kait in separate judgments quashed FIR’s relating to rape of a minor and gang-rape of a private executive respectively, after they found too many discrepancies or contradictions in victims’ statements. The common theme in all three judgments was the advice to courts not to get swayed by mere allegations of rape, howsoever heinous, but sift through evidence before convicting anyone.

Justice Gambhir, while dealing with the anticipatory bail plea pointed out that for a period of more than two years, the woman enjoyed physical intimacy with the boy. She lodged an FIR alleging rape only when he spurned her offer of marriage when she took help of the police to forcibly marry him even though the marriage was never consummated, as per the FIR.

In her complaint, she justified the delay on the grounds she was threatened and blackmailed by the boy and his kin to keep quiet otherwise she might have been killed. Being the victim of such a reprehensible crime, one should lodge a complaint immediately, or within a reasonable period of time unless there are sufficient reasons to explain the long delay, the court said.

“Delay in lodging an FIR, in such like cases can ultimately diminish the chances of conviction, as due to such delay, the medical evidence and the other circumstantial evidence may rarely be available to support the case of prosecution,” it said.

While acknowledging there is a manifold increase in the crime concerning rapes, HC said all the rape cases which are filed have their “own individual story and factual matrix”. It agreed most of the cases may be genuine, wherein the girl is a victim of the horrifying crime, or has been forced, blackmailed, threatened to enter into physical relationship with a male on the false pretext of marriage with the sole intent to physically exploit the girl “but there may be cases where both persons out of their own will and choice, develop a physical relationship”.

 

Sources: http://timesofindia.indiatimes.com/india/Women-using-rape-laws-for-vengeance-Delhi-high-court-says/articleshow/20267501.cms

 

For the purpose of granting or refusing bail there is no classification of the offences except the ban under Section 437(1) of the Criminal Procedure Code against grant of bail in the case ofoffences punishable with death or life imprisonment. Hence there is no statutory support or justification for classifying offences into different categories such as economic offences and for refusing bail on the ground that the offence involved belongs to a particular category. When the Court has been granted discretion in the matter of granting bail and when there is no statute prescribing a special treatment in the case of a particular offence the Court cannot classify thecases and say that in particular classes bail may be granted but not in others. Not only in the caseof economic offences but also in the case of other offences the Court will have to consider the larger interest of the public or the State. Hence only the considerations which should normally weigh with the Court in the case of economic offences also. It cannot be said that bail should invariably be refused in cases involving serious economic offences.”

———————————————————————————————————————————————————————————————————

IN THE HIGH COURT OF DELHI AT NEW DELHI

+ BAIL APPLN. 1770/2013

Date of Decision: 21st October, 2013

PARAMJEET ….. Petitioner Through Mr. Tanveer Ahmad Mir, Advocate

versus

STATE OF NCT OF DELHI ….. Respondent Through Ms. Asha Tiwari, APP for the State with SI Ashok Kumar, Crime Branch.

CORAM:

HON’BLE MS. JUSTICE SUNITA GUPTA

JUDGMENT

: SUNITA GUPTA, J.

1. This is an application under Section 439 of the Code of Criminal Procedure, 1973 filed by the petitioner for grant of bail in case FIR No.152/2013, under Section 419/420/467/468/471/120-B IPC PS Crime Branch.

2. As per the allegations in the FIR, secret information was received in SOS office that Pradeep and Devender were recruiting drivers and conductors on the basis of fake conductors’ licence-cum-badge and fake driving licence after charging huge amount. On this information, a raid was conducted. Decoy customers were deputed for being recruited as drivers and conductors. A trap was laid. Pradeep and Devender demanded Rs. 70,000/- for Bail.Appln.1770/2013 Page 1 of 8 conductor’s post in cluster bus service and Rs.40,000/- were demanded for the driver’s post and as per deal, part payment was made to Pradeep as advance money. Devender handed over fake conductor’s licence and first aid certificate to the decoy customer and Pradeep handed over the fake driving license to the second decoy customer. On signal from decoy customers, Pradeep and Devender were apprehended and fake documents handed over by them to decoy customers were seized. The numbered notes were also recovered from the possession of Devender and Pradeep. During the course of investigation, the above stated accused Devender disclosed that he got prepared the fake driving license, conductor and first aid certificate from one Amarjeet. Accused Pradeep disclosed that he got prepared driving license from one Chandra. Amarjeet was arrested. Accused Pradeep and Devender also disclosed about the involvement of applicant/accused Paramjeet @ Sanjay Dahiya. They disclosed that accused Paramjeet @ Sanjay Dahiya charged Rs. 36,500/- per recruitment of conductor and that more than 85 conductors were recruited through applicant/accused and as per disclosure statement, about 40 conductors were recruited on fake conductor’s license cum badge and first aid certificates.

3. It is further the case of the prosecution that the accused was Assistant Director in M/s Prehari Protection System (P) Ltd. and responsible for the recruitment and verification of conductors and the documents produced by the candidates. The accused and his associates have recruited more than two Bail.Appln.1770/2013 Page 2 of 8 thousand conductors.

4. It is submitted by learned counsel for the accused that the accused has been arrested only on the basis of disclosure statement of co-accused, which is inadmissible in evidence. Vide letter of award dated 28th March 2011, M/s Prehari Protection System (P) Ltd. was selected as a successful bidder by Delhi Integrated Multi Modal Transit System Limited (DIMTS) for providing fare collection and related services in operation of private stage carriage buses and the main job of the company was to provide the conductors to the said DIMTS. The applicant is not the Assistant Director but as per the letter of appointment, he is only Assistant Manager. He was never involved in the recruitment of conductors of DIMTS and in fact the applicants applied for the post of conductor on the prescribed format and they were selected as per the requirement of DIMTS. He is in custody since 09 th September 2013. Nothing has been recovered from the possession of the applicant. He has been falsely implicated in this case as such he be released on bail. Reliance was placed on Anil Mahajan vs. Commissioner of Custom, 2000 (84) DLT 854 wherein the legal position regarding grant of bail was summarised. The main emphasis was placed on c, d and n.

5. The bail application is vehemently opposed by learned Public Prosecutor for the State on the ground that it is a big racket which is recruiting drivers and conductors on the basis of fake document after taking huge amount from the customers. It was submitted that on receipt of secret Bail.Appln.1770/2013 Page 3 of 8 information, raid was conducted. Two customers were deputed and trap was laid; co-accused Pradeep and Devender were arrested. During investigation, accused Devender disclosed that he got prepared fake driving licenses, conductor and first aid certificate from one Mr. Amarjeet while accused Pradeep disclosed that he got prepared driving licenses from one Chandra. Amarjeet was arrested. Accused Pradeep and Devender also disclosed about the involvement of applicant Paramjeet @ Sanjay Dahiya. It was submitted that fake conductors’ license cum badge, I-card, receipt books and visiting cards have been recovered from applicant Paramjeet which shows his complicity in the crime. Statement of Inder Singh, s/o Ishwar Singh, R/o 4336, Defence Colony, Jind, Haryana and Rajesh Kumar s/o Rajender Singh r/o V.P.O. Hassangarh, District Rohtak, Haryana were recorded under Section 161 Cr.PC wherein they have stated that they were recruited by Paramjeet @ Sanjay Dahiya without having any conductor license/badge and first aid certificate and for this purpose they paid Rs.65,000/- each to Paramjeet and his associates. On interrogation, Paramjeet disclosed that he has so far appointed more than 2000 conductors with the help of Devender and Pradeep and some other associates out of which a number of candidates were appointed on the basis of forged document. The particulars of the conductors working on public transport cluster post are being verified from the concerned transport authorities. The verification report regarding five driving license of drivers appointed by this illegal racket has been received from ARDO Bail.Appln.1770/2013 Page 4 of 8 /Kanpur/U.P. which are reportedly found fake. Verification report regarding five First Aid Certificates recovered from accused person has also been received from St. John Ambulance Aassociation, Red cross Bhawan, New Delhi, which was also found fake. Keeping in view, the magnitude and primary stage of investigation coupled with the fact that other associates of this organisation are yet to be identified, it is submitted that if the accused is released on bail at this stage he may influence the witnesses, destroy/tamper the evidence.

6. I have given my considerable thoughts to the respective submissions of learned counsel for the parties. In Anil Mahajan (supra), this Court summarised the legal position regarding grant/refusal of bail. Learned counsel for the petitioner laid special emphasis on points c, d and n for submitting that the object of bail is to secure the attendance of the accused at the trial. Bail is not to be withheld as a punishment. Since accused has roots in the society, as such there is no chance of his absconding. Even in case of economic offences, the accused is to be granted bail. Points c, d and n relied upon by learned counsel for the petitioner are reproduced as under:- “(c) The object of bail is to secure the attendance of the accused at the trial. The principal rule to guide release on bail should be to secure the presence of the applicant to take judgment and serve sentence in the vent of the Court punishing him with imprisonment.

(d) Bail is not to be withheld as a punishment. Even assuming that the accused is prima facie guilty of a grave offence, bail cannot be refused in an indirect process of punishing the Bail.Appln.1770/2013 Page 5 of 8 accused person before he is convicted.

(n) For the purpose of granting or refusing bail there is no classification of the offences except the ban under Section 437(1) of the Criminal Procedure Code against grant of bail in the case of offences punishable with death or life imprisonment. Hence there is no statutory support or justification for classifying offences into different categories such as economic offences and for refusing bail on the ground that the offence involved belongs to a particular category. When the Court has been granted discretion in the matter of granting bail and when there is no statute prescribing a special treatment in the case of a particular offence the Court cannot classify the cases and say that in particular classes bail may be granted but not in others. Not only in the case of economic offences but also in the case of other offences the Court will have to consider the larger interest of the public or the State. Hence only the considerations which should normally weigh with the Court in the case of economic offences also. It cannot be said that bail should invariably be refused in cases involving serious economic offences.”

7. However the other parameters laid down in (h), (i), (k) and (l) also cannot be ignored which are reproduced as under:-

“(H) There is no hard and fast rule and no inflexible principle governing the exercise of such discretion by the Courts. There cannot be an inexorable formula in the matter of granting bail. The facts and circumstances of each case will govern the exercise of judicial discretion in granting or refusing bail. The answer to the question whether to grant bail or not depends upon a variety of circumstances, the cumulative effect of which must enter into the judicial verdict. Any one single circumstances cannot be treated as of universal validity or as necessarily justifying the grant or refusal of bail. (I) While exercising the discretion to grant or refuse bail the Court will have to take into account various consideration like the nature and seriousness of the offence; the circumstances in which the offence was committed; the character of the evidence; the

Bail.Appln.1770/2013 Page 6 of 8 circumstances which are peculiar to the accused; a reasonable apprehension of witnesses being influenced and evidence being tampered with; the larger interest of the public or the State; the position and status of the accused with reference to the victim and the witness; the likelihood of the accused fleeing from justice; the likelihood of the accused repeating the offence; the history of the case as well as the stage if investigation etc. In view of so many variable factors the considerations which should weigh with the Court cannot be exhaustively set out. However, the two paramount considerations are (i) the likelihood of the accused fleeing from justice, and (ii) the likelihood of the accused tampering with prosecution evidence. These two consideration in fact relate to ensuring a fair trial of the case in a court of justice and hence it is essential that due and proper weight should be bestowed on these two factors.

(K) If investigation has not been completed and if the release of the accused on bail is likely to hamper the investigation, bail can be refused in order to ensure a proper and fair investigation.

(L) If there are sufficient reasons to have a reasonable apprehension that the accused will flee from justice or will tamper with prosecution evidence he can be refused bail in order to ensure a fair trial of the case.”

8. In the light of the principles stated above, the facts and circumstances of the present case have to be considered. It is the case of prosecution that it is an organised racket which is recruiting drivers and conductors on the basis of forged documents. Statement of two witnesses have also been recorded u/s 161 Cr.P.C who have stated that they were recruited by the applicant without having any conductor’s licence/badge and first aid certificate and a sum of Rs.65,000/- each was paid to the accused and his associates. The Bail.Appln.1770/2013 Page 7 of 8 investigation further reveals that 5 driving licences of drivers and five first aid certificates were also found to be fake. The case is at primary stage of investigation. Larger interest of public is involved. Accused is one of the persons in the entire chain and in case he is released on bail, apprehension of the prosecution that he may influence the witness and may tamper with evidence cannot be ruled out.

9. Under the circumstances, keeping in view the magnitude of the crime and the primary stage of investigation, at this stage, accused is not entitled to be released on bail.

The application is accordingly dismissed.

SUNITA GUPTA, J

OCTOBER 21, 2013

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