Tuesday, July 22, 2014

Manohar Singh Vs. State of Madhya Pradesh & Anr.

Indian Penal Code, 1860 - Section 498A - Dowry Prohibition Act, 1961 - Section 4 - A compoundable offence can be compounded in view of a compromise, if the Court finds it proper to do so even after conviction if the appeal is pending.
 
Supreme Court of India
Criminal Appeal No.1498 OF 2014 [Arising out of Special Leave Petition (Crl.) No.8795 of 2012]
Hon'ble Judge(s): Ranjana Prakash Desai & N.V. Ramana
Date of Judgment: 21/07/2014
Manohar Singh Vs. State of Madhya Pradesh & Anr.

(SMT.) RANJANA PRAKASH DESAI, J.
1. Leave granted.
2. The appellant is original Accused No.
3. He was tried along with his father Hukum Singh – original Accused No. 1 and his mother Prem Bai – original Accused No. 2 by the Judicial Magistrate, Dewas (Madhya Pradesh) in Crime Case No. 1680/2009 for offences punishable under Section 498A of the Indian Penal Code (for short, ‘the IPC’) and Section 4 of the Dowry Prohibition Act, 1961 (for short, ‘the Dowry Act’). By judgment and order dated 29/9/2010 learned Magistrate acquitted the appellant and the other two accused. Being aggrieved by this order the State of Madhya Pradesh preferred appeal in the Sessions Court, Dewas being Criminal Appeal No.12/2011. The Sessions Court set aside the order of acquittal and convicted the appellant and two others under Section 498-A of the IPC and sentenced them to undergo two years rigorous imprisonment each and to pay a fine of Rs.500/- each. For offence under Section 4 of the Dowry Act each of them was sentenced to rigorous imprisonment for two years and to pay a fine of Rs.500/- each, in default, to undergo simple imprisonment for two months each.
3. Being aggrieved by the said judgment and order, the accused carried criminal revision to the High Court of Madhya Pradesh. The High Court by the impugned order set aside the conviction and sentence of original Accused Nos. 1and 2 i.e. the father and mother of the appellant. The conviction of the appellant was, however, confirmed. His sentence was reduced to six months and fine of Rs.500/- on each count. Both the substantive sentences were to run concurrently. Being aggrieved by this judgment the appellant filed the present appeal.
4. On 21/1/2013 the appellant sought permission to implead the complainant i.e. his wife Reena as respondent No.2. A statement was made that the appellant was willing to pay monetary compensation to his wife in lieu of substantive sentence of imprisonment. Permission to implead the complainant-wife Reena was granted. The appellant was directed to deposit Rs.25,000/- as litigation expenses. Respondent No. 2 was permitted to withdraw the said amount unconditionally. Subject to deposit, notice was issued to respondent No. 2 to consider whether the appellant can be asked to pay some suitable monetary compensation to respondent No. 2 in lieu of substantive sentence of imprisonment. On 24/3/2014 counsel for the appellant madea statement that the matter is likely to be settled. We directed respondent No. 2 – wife to remain present in the Court on 28/3/2014. Accordingly on 28/03/2014 she remained present in the Court. She stated that if the appellant pays her Rs.2,50,000/- (Rupees two lacs fifty thousand only) as compensation, she is ready to settle the matter. This Court, therefore, directed the appellant to bring a demand draft of Rs.2,50,000/- in the name of Reena (respondent No. 2). This Court noted that the said demand draft can be given to her in case after hearing the parties and considering the legal position, this Court permits settlement at this stage.
5. We have heard learned counsel for the appellant, learned counsel for the State of Madhya Pradesh and learned counsel for respondent No. 2. Learned counsel for the appellant and learned counsel for respondent No. 2 have requested the Court to show leniency in view of the settlement. Counsel for the State of Madhya Pradesh has opposed this prayer.6. Section 498-A of the IPC is non-compoundable. Section 4 of the Dowry Act is also non-compoundable. It is not necessary to state that non-compoundable offences cannot be compounded by a Court. While considering the request for compounding of offences the Court has to strictly follow the mandate of Section 320 of the Code. It is, therefore, not possible to permit compounding of offences under Section 498-A of the IPC and Section 4 of the Dowry Act. However, if there is a genuine compromise between husband and wife, criminal complaints arising out of matrimonial discord can be quashed, even if the offences alleged therein are noncompoundable, because such offences are personal in nature and do not have repercussions on the society unlike heinous offences like murder, rape etc. (See Gian Singh v. State of Punjab, (2012) 10 SCC 303). If the High Court forms an opinion that it is necessary to quash the proceedings to prevent abuse of the process of any court or to secure ends of justice, the High Court can do so. The inherent power of the High Court under Section 482 of the Code is not inhibited by Section 320 of the Code. Needless to say that this Court can also follow such a course.
7. In Narinder Singh v. State of PunjabJT 2014 (4) SC 573 this Court was dealing with a situation where the accused was charged for offence punishable under Section 307 of the IPC, which is a non-compoundable offence. The parties arrived at a compromise at the stage of recording of evidence. A petition was filed under Section 482 of the Code for quashing of the proceedings in view of the compromise. The High Court refused to quash the proceedings. This Court set aside the High Court’s order and quashed the proceedings in view of the compromise. While doing so, this Court laid down certain guidelines. In Guideline No.(VII), this Court considered a situation where a conviction is recorded by the trial court for offence punishable under Section 307 of the IPC and the matter is at appellate stage. This Court observed that in such cases, a mere compromise between the parties would not be a ground to accept the same resulting in acquittal of the offender who has already been convicted by the trial court. This Court observed that in such cases where charge is proved under Section 307 of the IPC and conviction is already recorded of a heinous crime, there was no question of sparing a convict found guilty of such a crime. The observation of this Court must be read obviously in the context of a non-compoundable offence under Section 307 of the IPC. It is trite that a non-compoundable offence cannot be compounded at any stage (See Gyan Singh v. State of Punjab, (2012) 10 SCC 303). However, a compoundable offence can be compounded in view of a compromise, if the Court finds it proper to do so even after conviction if the appeal is pending.
8. In this case, the appellant is convicted under Section 498-A of the IPC and sentenced to undergo six months imprisonment. He is convicted under Section 4 of the Dowry Act and sentenced to undergo six months imprisonment. Substantive sentences are to run concurrently. Even though the appellant and respondent No. 2-wife have arrived at a compromise, the order of conviction cannot be quashed on that ground because the offences involved are noncompoundable. However, in such a situation if the court feels that the parties have a real desire to bury the hatchet in the interest of peace, it can reduce the sentence of the accused to the sentence already undergone. Section 498-A of the IPC does not prescribe any minimum punishment. Section 4 of the Dowry Act prescribes minimum punishment of six months but proviso thereto states that the Court may, for adequate or special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term which may be less than six months. Therefore, sentence of the appellant can be reduced to sentence already undergone by him.
9. Now the question is whether a case for reduction of sentence is made out particularly when the appellant has undergone only seven days sentence out of six months sentence imposed on him. We see no reason why in thiscase we should not reduce the appellant’s sentence to sentence already undergone by him. There can be no doubt about the genuine nature of compromise between the appellant and respondent No.2-wife. The appellant has offered to pay a sum of Rs.2,50,000/- to respondent No.2- wife as compensation. A demand draft drawn in the name of respondent No.2 is brought to the Court. As directed by us even litigation costs of Rs.25,000/- has been deposited by the appellant in the Court. Respondent No.2-wife has appeared in this Court on more than one occasion and requested this Court to take compromise into consideration and pass appropriate orders. Learned counsel for the parties have requested us to take a kindly view of the matter. The affidavit filed by the State of Madhya Pradesh opposing the prayer of the parties does not impress us.
10. We must also note that the trial court had acquitted the appellant. Though the Sessions Court reversed the order and convicted the appellant for two years, the High Court reduced the sentence to six months. The appellant andrespondent No.2 were married in 2007. About seven years have gone by. Considering all these circumstances, in the interest of peace and amity, we are of the opinion that the appellant’s sentence must be reduced to sentence already undergone by him.
11. In the circumstances, the appeal is partly allowed. The conviction of the appellant under Section 498-A of the IPC and under Section 4 of the Dowry Act is maintained but the sentence awarded to the appellant is reduced to sentence already undergone by him, subject to the condition that the appellant pays a sum of Rs.2,50,000/- (Rupees two lacs fifty thousand only) to respondent No.2-wife as compensation. Impugned order stands modified to the above extent.
12. We must note that a Demand Draft in the sum of Rs.2,50,000/- drawn in the name of respondent No.2 Reena has been handed over to her counsel by learned counsel for the appellant on 18/7/2014.13. In view of this, bail bond of the appellant, if any, stands discharged.

Yogendra Yadav & Ors. Vs. The State of Jharkhand & Anr.

Sections 341, 323, 324, 504 and 307 r/w 34 - Code of Criminal Procedure, 1973 - Section 231(2) r/w 311 -High Court can quash a criminal proceeding in exercise of its power under Section 482 of the Code having regard to the fact that the parties have amicably settled their disputes and the victim has no objection, even though the offences are non-compoundable.
continuation of criminal proceedings will be an exercise in futility and justice in the case demands that the dispute between the parties is put to an end and peace is restored; securing the ends ofjustice being the ultimate guiding factor. Needless to say that the above observations are applicable to this Court also.
Supreme Court of India
Criminal Appeal No.1205 OF 2014
Hon'ble Judge(s): Ranjana Prakash Desai & N.V. Ramana
Date of Judgment: 21/07/2014
  Yogendra Yadav & Ors. Vs. The State of Jharkhand & Ors.
(SMT.) RANJANA PRAKASH DESAI, J.
1. The appellants are original Accused Nos.1 to 3 respectively in P.S. Meharma Case No.155 of 2004 registered under Sections 341, 323, 324, 504 and 307 read with Section 34 of the Indian Penal Code (for short, ‘the IPC’). The FIR was lodged on 23/09/1994 by complainant Anil Mandal alleging that the appellants assaulted him and his men on 22/09/2004. On the same day the appellants also filed FIR in respect of the same incident dated 22/09/2004 alleging that complainant Anil Mandal, Baldev Mandal and others assaulted them. This FIR was registered at P.S. Meharma being Case No.156 of 2004 under Sections 147, 148, 149, 448, 341, 323 and 380 of the IPC.
2. In both the cases, after investigation, charge-sheet was submitted. While the cases were going on before the 2ndAdditional Sessions Judge, Godda, both the parties agreed to compromise the cases. A Panchayat was held where with the intervention of the well-wishers a compromise was arrived at. A compromise petition dated 16/11/2011 was signed by both the parties and it was filed in the Court of 2nd Additional Sessions Judge, Godda. An application was filed under Section 231(2) read with Section 311 of the Code of Criminal Procedure, 1973 (for short, ‘the Code’) being S.C. No. 9/05 for recalling PWs 1 to 6 for further crossexamination on the point of compromise.
3. Learned Additional Sessions Judge by his order dated 16/11/2011 disposed of the said application. Learned Additional Sessions Judge observed that compromise petition was signed by the informant and the injured, their signatures were identified by the lawyers and, therefore, the compromise was genuine. He, however, observed that offences under Sections 324, 341, 323 of the IPC are compoundable with the permission of the court and offences under Sections 326, 307 read with Section 34 of the IPC are non-compoundable. He, therefore, accepted the application in respect of offences under Sections 323, 324 and 341 of the IPC. The said offences were compounded and the accused were acquitted of the same. Prayer for compounding of offences under Sections 326, 307 read with Section 34 of the IPC was rejected. Learned Additional Sessions Judge rejected the application for recalling of witnesses. He directed that the case should proceed against the accused for offences under Sections 326, 307 read with Section 34 of the IPC. This order was challenged by the appellants in the High Court of Jharkhand. By the impugned order the High Court dismissed the challenge, hence, this appeal.
4. Now, the question before this Court is whether this Court can compound the offences under Sections 326 and 307 of the IPC which are non-compoundable. Needless to say that offences which are non-compoundable cannot be compounded by the court. Courts draw the power of compounding offences from Section 320 of the Code. The said provision has to be strictly followed (Gian Singh v. State of Punjab, (2012) 10 SCC 303). However, in a given case, the High Court can quash a criminal proceeding in exercise of its power under Section 482 of the Code having regard to the fact that the parties have amicably settled their disputes and the victim has no objection, even though the offences are non-compoundable. In which cases the High Court can exercise its discretion to quash the proceedings will depend on facts and circumstances of each case. Offences which involve moral turpitude, grave offences like rape, murder etc. cannot be effaced by quashing the proceedings because that will have harmful effect on the society. Such offences cannot be said to be restricted to two individuals or twogroups. If such offences are quashed, it may send wrong signal to the society. However, when the High Court is convinced that the offences are entirely personal in nature and, therefore, do not affect public peace or tranquility and where it feels that quashing of such proceedings on account of compromise would bring about peace and would secure ends of justice, it should not hesitate to quash them. In such cases, the prosecution becomes a lame prosecution. Pursuing such a lame prosecution would be waste of time and energy. That will also unsettle the compromise and obstruct restoration of peace.
5. In Gian Singh this Court has observed that where the High Court quashes a criminal proceeding having regard to the fact that the dispute between the offender and the victim has been settled although the offences are not compoundable, it does so as in its opinion, continuation of criminal proceedings will be an exercise in futility and justice in the case demands that the dispute between the parties is put to an end and peace is restored; securing the ends ofjustice being the ultimate guiding factor. Needless to say that the above observations are applicable to this Court also.
6. Learned counsel for the parties have requested this Court that the impugned order be set aside as the High Court has not noticed the correct position in law in regard to quashing of criminal proceedings when there is a compromise. Affidavit has been filed in this Court by complainant-Anil Mandal, who is respondent No. 2 herein. In the affidavit he has stated that a compromise petition has been filed in the lower court. It is further stated that he and the appellants are neighbours, that there is harmonious relationship between the two sides and that they are living peacefully. He has further stated that he does not want to contest the present appeal and he has no grievance against the appellants. Learned counsel for the parties have confirmed that the disputes between the parties are settled; that parties are abiding by the compromise deed and living peacefully. They have urged that in the circumstances pending proceedings be quashed. State of Jharkhand hasfurther filed an affidavit opposing the compromise. The affidavit does not persuade us to reject the prayer made by the appellant and the second respondent for quashing of the proceedings.
7. In view of the compromise and in view of the legal position which we have discussed hereinabove, we set aside the impugned order dated 4/7/2012 and quash the proceedings in S.C.No.9/05 pending on the file of 2nd Additional Sessions Judge, Godda. The appeal is disposed of.

Sathiyamoorthy And Ors. Vs. State Represented By The Inspector of Police, Madurai

Indian Penal Code, 1860 - Section 325 and 341 - Since the accused and the victim have entered into a compromise, it would be in the interest of both sides to reduce the sentence awarded to the accused to the sentence already undergone.
Supreme Court of India
Criminal Appeal No.1169 OF 2014
Hon'ble Judge(s): Ranjana Prakash Desai & N.V. Ramana
Date of Judgment: 21/07/2014
  Sathiyamoorthy And Ors. Vs. State Represented By The Inspector of Police, Madurai

(SMT.) RANJANA PRAKASH DESAI, J.
1. The appellants who are original Accused Nos. 1 to 6 respectively were tried in the court of Additional District and Sessions Judge, Madurai in Sessions Case No.444 of 2005 for various offences under the Indian Penal Code (for short, ‘the IPC’) on the allegation that on 11/11/2004 at about 8.00 p.m. when complainant Ayyanar and his son Murugesan were standing at a common place all the accused came there and formed an unlawful assembly with deadly weapons. Accused No. 2 unlawfully restrained Murugesan. Accused No. 1 attacked complainant-Ayyanar with an iron rod. He also attacked Murugesan with an aruval. Complainant Ayyanar lodged the FIR.
2. After completion of investigation, the accused were sent up for trial. At the trial the prosecution examined 16 witnesses. The accused denied the prosecution case. Learned Additional District and Sessions Judge found Accused Nos. 1 to 6 guilty under Section 148 of the IPC. He sentenced each of them to undergo rigorous imprisonment for one year and to pay a fine of Rs.500/- each, in default, to undergo two months rigorous imprisonment. Accused No. 1 was found guilty under Section 325 of the IPC and was sentenced to undergo rigorous imprisonment for three years and to pay a fine of Rs.1,000/-, in default, to undergo rigorous imprisonment for three months. Accused No. 2 was found guilty under Section 341 of the IPC and was sentenced to undergo three months rigorous imprisonment and to paya fine of Rs.200/-, in default, to undergo four weeks rigorous imprisonment. Accused No. 2 was also found guilty under Section 325 read with Section 149 of the IPC and was sentenced to undergo rigorous imprisonment for three years and to pay a fine of Rs.1,000/-, in default, to undergo rigorous imprisonment for six months. Accused Nos. 3 to 6 were found guilty under Section 325 read with Section 149 of the IPC. Each of them was sentenced to rigorous imprisonment for three years and to pay a fine of Rs.1,000/- each, in default, to undergo rigorous imprisonment for six months. Substantive sentences were to run concurrently.
3. Being aggrieved by the said conviction and sentence the appellants-accused preferred an appeal to the High Court. By the impugned order the High Court partly allowed the appeal. The order of conviction passed by the trial court was confirmed. However, the sentence imposed under Section 325 of the IPC on Accused No. 1, sentence imposed under Section 325 read with Section 149 of the IPC on Accused No. 2 and sentence imposed under Section 325read with Section 149 of the IPC on Accused Nos. 3 to 6 was reduced to two years rigorous imprisonment instead of three years rigorous imprisonment. Rest of the order of the trial court was confirmed. Being aggrieved by the judgment and order, the appellants-accused have filed the present appeal.
4. During the pendency of the appeal on 25/04/2014 victim-Murugesan remained present in this Court. He had filed an application for impleadment which was granted. He stated that he would like to compound the offences. That statement was recorded and the matter was adjourned to consider the prayer. An application has been filed by the appellants praying that offences may be permitted to be compounded. It is stated in the application that victim Murugesan and the accused are cousins and they have decided to settle the disputes amicably. It is further stated that pursuant to this decision the accused have paid a reasonable amount to victim Murugesan as per the decision of family elders and they have entered into an amicable settlement in their village much before the accusedsurrendered as per the orders of this Court. A copy of the statement of victim Murugesan dated 30/9/2012 stating that he has entered into a compromise with the accused is annexed to the application.
5. We have heard learned counsel for the appellantsaccused, Mr. Luthra, learned Additional Solicitor General (AC) and learned counsel for the State of Tamil Nadu. They confirmed that parties have entered into a compromise. They submitted that in view of the settlement, this Court may compound the offences as that will accord a quietus to all disputes between the parties. Counsel submitted that the accused and the complainant are cousins. After the compromise they have been staying peacefully in the village. It is in the interest of both sides to bury the hatchet and lead a peaceful life.
6. Offences under Sections 341 and 325 are compoundable. In view of the settlement they can be permitted to be compounded. However, offences under Sections 148 and 149 of the IPC are not compoundable. Hence, permission to compound them cannot be granted. However, since the accused and the victim have entered into a compromise, we feel that it would be in the interest of both sides to reduce the sentence awarded to the accused under Sections 325 and 341 of the IPC to the sentence already undergone.
7. In Ram Lal and anr. v. State of J & K, (1999) 2 SCC 213 the accused were convicted for offence under Section 326 of the IPC, which is non-compoundable. Looking to the fact that the parties had arrived at a settlement and victim had no grievance, this Court reduced the sentence for the offence under Section 326 to sentence already undergone by the appellants-accused. We are inclined to follow similar course.
8. In the result, the appeal is partly allowed. The offences under Sections 341 and 325 of the IPC, for which the appellants are convicted, are permitted to be compounded because they are compoundable. The appellants are acquitted of the said offences. The appellants are stated to have undergone more than six months imprisonment. So far as offences under Sections 148 and 149 of the IPC are concerned, the conviction of the appellants for the said offences is reduced to the sentence already undergone by them subject to the appellants paying Rs.30,000/- as compensation to victim-Murugesan. Compensation be paid within three months from the date of this judgment.
9. This Court has already released the appellants on bail. In view of this order the bail bonds of the appellants are discharged subject to payment of compensation of Rs.30,000/- as directed by us. If compensation is not paid consequences will follow.

Monday, July 21, 2014

C.K. Dasegowda & Ors. Vs. State Of Karnataka

Indian Penal Code - Sections 34, 114, 143, 147, 148, 323, 324, 326, 307; Criminal Procedure Code - Sections 209, 235(1), 313- Appeal is filed by the appellants questioning the correctness of the judgment and final order dated 11.08.2010 passed by the High Court. setting aside the order of acquittal of the appellants passed by the trial court thereby imposing sentence of conviction on the accused. The High Court erred in setting aside the order of the acquittal of the appellants in the absence of any legal and factual evidence on record to prove the findings and reasons recorded in the judgment of the trial court as perverse.
Supreme Court of India
Criminal Appeal No.1381 Of 2014 (@ Special Leave Petition (Crl.)No.4018 Of 2012)
Hon'ble Judge(s): Dipak Misra & V. Gopala Gowda.
Date of Judgment: 15/07/2014
  C.K. Dasegowda & Ors. Vs. State Of Karnataka
V. GOPALA GOWDA, J. 
This appeal is filed by the appellants questioning the correctness of the judgment and final order dated 11.08.2010 passed by the High Court of Karnataka at Bangalore in Criminal Appeal No. 1256 of 2005 in setting aside the order of acquittal of the appellants passed by the trial court thereby imposing sentence of conviction on the accused for offences punishable under Section 324 read with Section 34 of IPC for causing injuries on separate count.
2. Necessary relevant facts are stated hereunder to appreciate the case of the appellants and also to find out whether they are entitled to the relief as prayed for in this appeal.
3. It is the case of the prosecution that on 11.8.1999, at about 7:00 a.m., PW-3 Kempanna had gone to the house of the complainant on a bicycle to take milk for his children. When the complainant and PW-3 were coming back, accused nos. 1 to 10 (A-1 to A-10) attacked them with deadly weapons. It is alleged by the prosecution that A-1 assaulted PW-3 with iron blade of a plough on his head. A-3 assualted PW-3 on his back and thigh. A-4 assualted PW-3 on both his legs with iron blade of plough. A-2 assaulted PW-1 with iron rod on his left shoulder. A-6, A-8 and A-10 kicked PW-1. A-5 and A-7 assaulted Bhagyamma- PW-6 with iron blade of plough and A-9 kicked her.
4. A complaint (Ex.-P1) was lodged on 11.8.1999 at 9:00 a.m. before the police. The Crime Case No. CC 728 of 2000 was registered by the Investigating Officer. The injured were taken to the hospital at around 2:00 p.m. PW-3 had sustained fracture of tibia, fibula and ankle. PW-6 had sustained simple injuries. PW-4 Jalaiah and PW-9- Shivanna are the eye witnesses to the incident.
5. The accused after their arrest, on their voluntary instance, M.O. 1 to M.O. 3 (clubs), M.O. 4 & M.O. 5 (iron blade of plough) and M.O. 6 (iron rod) were recovered. However, the said weapons had no incriminating marks like blood stains on them. The accused were charge-sheeted for committing offences under Sections 143, 147, 148, 323, 324, 326, 307, read with Section 114 of IPC. Thereafter, the learned Magistrate took cognizance of the alleged offences and registered CC No. 728 of 2000. The learned Magistrate complying with the provisions of Section 209 of CrPC, committed the case to the Sessions Court for trial since offences alleged under Section 307 are to be exclusively tried by that court. The accused persons pleaded not guilty and claimed trial. The prosecution in support of its case, got examined PW-1 to PW-10 and marked Ex. P-1 to P-9 and MOs. 1 to 6. The accused-appellants got marked Ex. D-1 and had also submitted their written reply while recording their statements under Section 313 of CrPC.
6. In the evidence, PW-1 has stated that A-2 had assaulted him with iron rod, A-5 held him, A-1 assaulted PW-3 with iron rod. He further stated that A-4 assaulted PW-3 on his legs with iron blade of plough. A-3, A-6 and A-7 were holding clubs and assaulting PW-3. A-1 instigated other accused persons to kill PW-1.
7. The evidence of PW-3 also discloses that A-4 assaulted him with iron blade of plough on his legs and hands. A-6, A-7 and A-5 assaulted him with clubs on his back, thigh and shoulder. The other accused persons kicked him.
8. PW-6 in her evidence, stated that she was assaulted by the accused persons but she could not name the persons. This witness was treated as hostile.
9. The trial court, on appreciation of the evidence on record has held that the prosecution has failed to prove any of the offences alleged against the accused persons. There is an element of reasonable doubt on many counts, which have already been explained. The benefit of doubt always goes to the accused. Accordingly, the trial court ordered the acquittal of accused-appellant nos. 1 to 10 under Section 235(1) of CrPC for offences punishable under Sections 143, 147, 148, 323, 324, 326, 307 read with Section 114 of IPC. Aggrieved by the same, the State of Karnataka appealed before the High Court challenging the judgment and order of acquittal passed by the learned trial judge.
10. The High Court, on the basis of facts and evidence on record, held that with regard to the nature of offences, the evidence and facts narrated in the FIR discloses that A-3 assaulted PW-3 with iron blade of plough. In the evidence, it is further stated that A-4 also assaulted PW-3 with iron blade of plough. But in the wound certificate, there is no mention of presence or participation of A-4. It is evident that there are fractures in the tibia and fibula which could have occurred because of fall from bicycle as well. The fracture injury is not caused intentionally. Therefore, from the nature and manner of assault, as narrated, it can only be said that the accused is guilty under Section 324 read with Section 34 of IPC for causing injuries to PW-1 and PW-3 on separate counts. Therefore, the High Court convicted and sentenced the appellants to pay a fine of 10,000/- each on separate counts and in default, to undergo simple imprisonment for a period of one year.
11. The accused-appellants challenged the decision of the High Court raising various facts and legal contentions and have prayed for setting aside the impugned judgment of the High Court.
12. The learned senior counsel on behalf of the appellants, Ms. Kiran Suri contended that the High Court has erred in reversing the Order of the trial court since the trial court had acquitted the accused-appellants only after proper appreciation of the evidence on record and inconsistencies and contradictions found in the evidence of prosecution witnesses and noticing the previous enmity between the parties, delay in recording the statements of the prosecution witnesses and also statement of eye witness, it has held that it creates a reasonable doubt as to the guilt of the accused.
13. The learned senior counsel on behalf of the appellants further contended that conviction of the accused-appellants under Section 324 of IPC read with Section 34 is absolutely arbitrary, unreasonable and contrary to the above provisions of IPC.
14. It was further contended by the learned senior counsel that there is discrepancy regarding the names of the assailants in the FIR and in the wound certificate and further the motive behind the alleged assault by the accused-appellants has also not been proved by the prosecution by adducing evidence.
15. On the other hand, the learned counsel on behalf of the respondent contended that PW-1 and PW- 3 are injured eye witnesses. The fact that the accused-appellants had assaulted these persons with iron rod, gula and club is corroborated by the medical evidence of PW-5 and PW-7. It was further argued by the learned counsel that the appellants had assaulted the complainant on account of previous enmity with them. According to the learned counsel for the respondent, PW-2 is an independent witness. Therefore, according to the learned counsel, the ingredients of unlawful assembly, rioting, causing grievous hurt with dangerous weapons with an intention to kill, have been proved.
16. We have perused the facts and legal evidence on record. We have also carefully appreciated the contentions of both the parties. On the basis of the facts and evidence on record, we are of the opinion that the High Court erred in reversing the Order of the trial court in the absence of any substantial material evidence on record which regarded the decision of the trial court as perverse.
17. In the case of Chandrappa v. State of Karnataka(2007) 4 SCC 415 it has been held by this Court as under: 
“39. In Harijana Thirupala v. Public Prosecutor, High Court of A.P., this Court said:
12. Doubtless the High Court in appeal either against an order of acquittal or conviction as a court of first appeal has full power to review the evidence to reach its own independent conclusion. However, it will not interfere with an order of acquittal lightly or merely because one other view is possible, because with the passing of an order of acquittal presumption of innocence in favour of the accused gets reinforced and strengthened. The High Court would not be justified to interfere with the order of acquittal merely because it feels that sitting as a trial court it would have proceeded to record a conviction; a duty is cast on the High Court while reversing an order of acquittal to examine and discuss the reasons given by the trial court to acquit the accused and then to dispel those reasons. If the High Court fails to make such an exercise the judgment will suffer from serious infirmity.
40. In Ramanand Yadav v. Prabhunat Jha this Court observed; 
21. There is no embargo on the appellate Court reviewing the evidence upon which an order of acquittal is based. Generally, the order of acquittal shall not be interfered with because the presumption of innocence of the accused is further strengthened by acquittal. The golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. The paramount consideration of the Court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may arise from acquittal of the guilty is no less than from the conviction of an innocent. In a case where admissible evidence is ignored, a duty is cast upon the appellate Court to reappreciate the evidence in a case where the accused has been acquitted, for the purpose of ascertaining as to whether any of the accused committed any offence or not".
41. Recently, in Kallu v. State of M.P., this Court stated; 
8. While deciding an appeal against acquittal, the power of the Appellate Court is no less than the power exercised while hearing appeals against conviction. In both types of appeals, the power exists to review the entire evidence. However, one significant difference is that an order of acquittal will not be interfered with, by an appellate court, where the judgment of the trial court is based on evidence and the view taken is reasonable and plausible. It will not reverse the decision of the trial court merely because a different view is possible. The appellate court will also bear in mind that there is a presumption of innocence in favour of the accused and the accused is entitled to get the benefit of any doubt. Further if it decides to interfere, it should assign reasons for differing with the decision of the trial court". (emphasis supplied) 
42. From the above decisions, in our considered view, the following general principles regarding powers of appellate Court while dealing with an appeal against an order of acquittal emerge; 
(1) An appellate Court has full power to review, re-appreciate and reconsider the evidence upon which the order of acquittal is founded; 
(2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate Court on the evidence before it may reach its own conclusion, both on questions of fact and of law; 
(3) Various expressions, such as, 'substantial and compelling reasons', 'good and sufficient grounds', 'very strong circumstances', 'distorted conclusions', 'glaring mistakes', etc. are not intended to curtail extensive powers of an appellate Court in an appeal against acquittal. Such phraseologies are more in the nature of 'flourishes of language' to emphasize the reluctance of an appellate Court to interfere with acquittal than to curtail the power of the Court to review the evidence and to come to its own conclusion. 
(4) An appellate Court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court. 

(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court.” 
18. Therefore, based on the legal principles laid down by this Court in the above mentioned case and applying the same to the facts and evidence on record of this case, we are of the opinion that the High Court erred in setting aside the order of the acquittal of the appellants in the absence of any legal and factual evidence on record to prove the findings and reasons recorded in the judgment of the trial court as perverse. The contentions urged on behalf of the appellants are well founded as the same are in conformity with the legal principles laid down in the aforesaid cases.
19. We therefore, set aside the order of the High Court and reinforce the order of acquittal by the trial court. The appeal is allowed.
Cases Referred:  Chandrappa v. State of Karnataka, (2007) 4 SCC 415

Thursday, April 17, 2014

Nagar Palika Parishad, Mihona and Anr. Vs. Ramnath and Anr

Specific Relief Act, 1963 - Section 38 - Perpetual injunction when granted.
 M.P. Municipalities Act, 1961 - Section 187 - Section 319 - Bar of suit in absence of notice.
Supreme Court of India
Civil Appeal No. 4454 OF 2014
Hon'ble Judge(s):  SUDHANSU JYOTI MUKHOPADHAYA, V. GOPALA GOWDA.
Date of Judgment: APRIL 9 2014
  Nagar Palika Parishad, Mihona and Anr. Vs. Ramnath and Anr
N.V.RAMANA, J.
SUDHANSU JYOTI MUKHOPADHAYA, J. 

Leave granted. 

2. This appeal has been preferred by the appellants-Nagar Palika Parishad, Mihona (hereinafter referred to as “Nagar Palika”) against the judgment dated 11th April, 2012 passed by the High Court of Madhya Pradesh Bench at Gwalior in Second Appeal No.568 of 2009. By the impugned judgment the High Court dismissed the Second Appeal and affirmed the judgments passed by the first appellate court and the trial court. 

3. The case of the appellant–Nagar Palika is that on finding that respondent No.1 – plaintiff has made encroachment on a public road, namely, Khitoli Road, a notice under Section 187 of the M.P. Municipalities Act, 1961 (hereinafter referred o as “Act, 1961”) dated 26th November, 1982 was issued to respondent No.1–plaintiff calling upon him to remove the encroachment from Khitoli Road at Mihona, District Bhind, M.P. (hereinafter referred to as “suit land”). As respondent No.1 – plaintiff refused to comply with the aforesaid notice and also failed to show any title over the encroached land, another notice was issued on 23rd December, 1982, intimating respondent No.1–plaintiff that if the encroachment is not removed by him it shall be removed by the appellant, in exercise of power conferred under Section 109 read with Section 223 of the Act, 1961. 

4. Instead of complying with the aforesaid notices, respondent No.1 – plaintiff filed Civil Suit No.79/90 in the Court of 1st Civil Judge, Class- I, Lahar, District Bhind for declaration of his title and permanent injunction for restraining the appellants from interfering in his possession over the suit land contending that the suit land was his ancestral property. The aforesaid suit was contested by the appellant by filing written statement contending, inter alia, that the suit land is a public road which the appellants intend to make a Pakka (Road) in consonance with the public policy and public interest due to which the action for removal of encroachment has been taken and that the suit was not maintainable for want of notice under Section 319 of the Act, 1961. 

5. The trial court on hearing the parties by its judgment and decree dated 20th August, 2008 decreed the suit in favour of respondent No.1–plaintiff. The trial court held that no notice under Section 319 of the Act, 1961 is required to be issued before filing a suit for permanent injunction. The aforesaid judgment was upheld by the first appellate court by the judgment and decree dated 31st August, 2009 in C.A. No.20/09. 

6. The second appeal preferred by the appellant was dismissed by the High Court though the appellant raised one of the following substantial questions of law: ?.Whether the suit filed by respondent No.1 - plaintiff was maintainable for non-compliance of statutory requirement of notice as contemplated by Section 319 of the Act, 1961. 

7. Section 319 of the Act, 1961 bars suits in absence of notice and reads as follows: 

“Section 319-Bar of suit in absence of notice.-(1) No suit shall be instituted against any Council or any Councilor, officer or servant thereof or any person acting under the direction of any such Council, Councilor, officer or servant for anything done or purporting to be done under this Act, until the expiration of two months next after a notice, in writing, stating the cause of action, the name and place of abode of the intending plaintiff and the relief which he claims, has been, in the case of a Council delivered or left at its office, and, in the case of any such member, officer, servant or person as aforesaid, delivered to him or left at his office or usual place of abode; and the plaint shall contain a statement that such notice has been delivered or left. 

(2) Every suit shall be dismissed unless it is instituted within eight months from the date of the accrual of the alleged cause of action. 

(3) Nothing in this section shall be deemed to apply to any suit instituted under Section 54 of the Specific Relief Act, 1877 (I of 1877).” 

8. Respondent No.1-plaintiff filed the suit for declaration of title and permanent injunction. In view of bar of suit for declaration of title in absence of notice under Section 319 the suit was not maintainable. The Courts below wrongly held that the suit was perpetual injunction though the respondent No.1-plaintiff filed the suit for declaration of title and for permanent injunction. 

9. Respondent No.1-plaintiff cannot derive advantage of sub Section (3) of Section 319 which stipulates non-application of the Section 319 when the suit was instituted under Section 54 of the Specific Relief Act, 1877 (old provision) equivalent to Section 38 of the Specific Relief Act, 1963 and reads as follows: 

“Section 38.Perpetual injunction when granted.-(1)Subject to the other provisions contained in or referred to by this Chapter, a perpetual injunction may be granted to the plaintiff to prevent the breach of an obligation existing in his favour, whether expressly or by implication. 

(2) When any such obligation arises from contract, the Court shall be guided by the rules and provisions contained in Chapter- II. 

(3) When the defendant invades or threatens to invade the plaintiff’s right to, or enjoyment of, property, the Court may grant a perpetual injunction in the following cases, namely: 

(a) where the defendant is trustee of the property for the plaintiff; 

(b) where there exists no standard for ascertaining the actual damage caused, or likely to be causes, by the invasion; 

(c) where the invasion in such, that compensation in money would not afford adequate relief; 

(d) where the injunction is necessary to prevent a multiplicity of judicial proceedings.” 

The benefit aforesaid cannot derive by Respondent No.1-plaintiff as the suit was filed for declaration of title coupled with permanent injunction. Respondent No.1 having claimed title, the suit cannot be termed to be suit for perpetual injunction alone. 

10. Along with the trial court and the appellate court, the High Court also failed to appreciate the aforesaid fact and also overlooked the valuable interest and right of public at large, to use the suit land which is a part of public street. Further, in absence of challenge to the notice of eviction issued by the appellant, it was not open to the trial court to decide the title merely because permanent injunction coupled with declaration of title was also sought for. 

11. In view of our finding, we set aside the impugned judgment dated 11th April, 2012 passed by the High Court in second appeal as also the judgment and decree passed by the first appellate court and the trial court. It will be open to the appellant to proceed in accordance with law. The appeal is allowed with aforesaid observations.
 

Monday, April 14, 2014

V. Kala Bharathi & Ors. Vs. The Oriental Insurance Company Ltd., Branch Chittoors

The Code of Civil Procedure, 1908  - Order XXI Rule (1) -Whether the amount deposited by the judgment debtor in a decree is to be adjusted first towards interest or towards principal decretal amount? - If the amount deposited by the judgment debtor falls short of the decretal amount, the decree-holder is entitled to apply the rule of appropriation by appropriating the amount first towards interest, then towards costs and subsequently towards principal amount due under the decree - The appellants herein are entitled to the amount awarded by the Executing Court, as the amounts deposited by the judgment debtor fell short of the decretal amount - After such appropriation, the decree-holder is entitled to interest only to the extent of unpaid - principal amount. Hence, interest be calculated on the unpaid principal amount.


Supreme Court of India
Civil Appeal No. 3056 of 2008
Hon'ble Judge(s):  P. SATHASIVAM, RANJAN GOGOI,N.V. RAMANA.
Date of Judgment: April 1, 2014
  V. Kala Bharathi & Ors. Vs. The Oriental Insurance Company Ltd., Branch Chittoors
 


N.V.RAMANA, J.
1. The short question to be answered in this appeal is whether the amount deposited by the judgment debtor in a decree is to be adjusted first towards interest or towards principal decretal amount.
2. The facts of the case are - On account of demise of an Engineering Graduate, Mr. V. Raja Kumar on 29.04.1993 in a road accident, his legal heirs, i.e., the appellants herein filed a claim petition being M.V.O.P. 774 of 1993 before the Motor Accident Claims Tribunal (for short, 'the Tribunal') claiming -
3. compensation to the tune of Rs.2 crores. The vehicle involved in the said accident was insured by the respondent - Insurance Company. The Tribunal vide its Award dated 29.04.1997 awarded an amount of Rs.98,40,500/- as compensation with interest @ 12% p.a. from the date of the petition, i.e., 25.10.1993 till the date of realization, apart from costs quantified at Rs.99,443/-.
4. Being aggrieved, the respondent - Insurance Company filed an appeal under Section 173 of the Motor Vehicles Act, 1988 (for short, 'the Act') and to comply with the provisions contained therein, deposited a sum of Rs.25,000/-. On 15.12.1997, the High Court in C.M.A. No. 1726 of 1997 granted stay of execution of the Award dated 29.04.1997 subject to the condition of depositing a sum of Rs.30 lakhs and Rs.99,443/- costs, which amounts were undisputedly deposited. The said order was made absolute on 15.07.1998 subject to the condition of depositing a further sum of Rs.30 lakhs, which was also complied with. A Division Bench of the High Court partly allowed the appeal on 19.12.2001 thereby -
5. reducing the compensation amount from Rs.98,40,500/- to Rs.56,40,000/- , however, the interest rate of 12% p.a. was retained. The respondent - Insurance Company also deposited a sum of Rs.23,27,635/- on 19.09.2002, claiming to be full and final satisfaction of the award.
6. The appellants filed Execution Petition No. 11 of 2003 on 06.06.2003 before the Executing Court / Tribunal claiming an amount of Rs.20,16,700/-, which claim was denied by the respondent - Insurance Company on the ground that its liability to pay interest gets discharged when it deposits the award amount in full. Thus, relying on the principle of accrual method, the respondent - Insurance Company claimed that since it satisfied the award amount in full, no more interest was payable and as per its calculation, only a sum of Rs.36,650/- was liable to be paid, which was deposited on 29.07.2003.
7. While adjudicating the aforesaid Execution Petition, the Executing Court took a view that the amounts deposited by the respondent - Insurance Company from time to time were liable to be adjusted -
8. towards the component of interest first and thereafter to the portion of the decretal amount. After taking into consideration the amounts deposited by the respondent - Insurance Company on different dates, its liability was fixed vide order dated 18.08.2004 to the extent of Rs.17,70,657/- together with interest @ 12% p.a. from the date of filing of the Execution Petition till the date of realization.
9. The respondent - Insurance Company assailed the aforesaid calculation / order of the Executing Court dated 18.08.2004 in Civil Revision Petition No. 4337 of 2004. The appellants herein also filed Civil Revision Petition No. 6108/2004 thereby challenging that the Executing Court could not have adjusted the amount paid as costs towards the decretal amount. The learned single Judge of the High Court of Judicature, Andhra Pradesh, by judgment dated 29.07.2005, allowed both the Civil Revision Petitions while holding that
(i) the part payments deserve to be adjusted towards the principal decretal amount and not any component of interest accrued upto that date; and
(ii) the amount deposited towards costs, in -
10. pursuance of the directions of the court, must be adjusted towards that, and not towards payment of the decretal amount.
Learned counsel for the appellants vehemently contended that the impugned order cannot be sustained being contrary to law of the land declared under Article 141 of the Constitution of India (for short, 'the Constitution'). He also contended that judicial discipline to abide by declaration of law made by this Court cannot be forsaken under any pretext by any authority or court, be it even the highest Court in a State. It tantamount to judicial indiscipline.
In support of his submissions, the learned counsel relied upon the judgment of this Court Industrial Credit and Development Syndicate (ICDS) Ltd. Vs. Smithaben H. Patel & Ors. 1999 (3) SCC 80, Venkatadri Appa Rao Vs. Parthan Sarathy Appa Rao AIR 1922 PC 233, Meghraj Vs. Bayabai 1969 (2) SCC 274 and Gurpreet Singh Vs. Union of India 2006 (8) SCC 457. 12. On the other hand, learned counsel appearing for the respondent - Insurance Company contended that, in the facts and circumstances of the case, there is no -
reason to interfere with the impugned order passed by the High Court.
We have heard learned counsel for the parties and gone through the entire material available on record.
Before adverting to the various issues involved in the case and the contentions advanced by the counsel on either side, we have given our anxious consideration to the judgment impugned of the learned single Judge of the Andhra Pradesh High Court. The learned Judge, while adjudicating the issue, has considered the judgments of this Court in Meghraj (supra), Industrial Credit and Development Syndicate (supra) and Rajasthan State Road Transport Corporation, Jaipur Vs. Poonam Pahwa, AIR 1997 SC 2951 and has passed the judgment by giving reasons which are basis for his conclusion.
11. We feel that it is appropriate to extract the relevant paragraphs from the impugned judgment. "It is true that in a plethora of judgments, the Supreme Court as well as the High Courts took the view that any amount deposited under Rule 1 of Order 21 CPC must be first adjusted towards interest. Discussion on those judgments vis-à-vis sub-rules (4) and (5) of Rule 1 - of Order 21 C.P.C. is prone to be taken or mistaken as an attempt to explain the judgments of the Supreme Court or High Courts. However, since some of the judgments of the Supreme Court were delivered at a time, when sub rules (4) and (5) were not on the statue book, and in the judgments rendered thereafter, the attention of the Hon'ble Supreme Court and the High Courts was not pointedly invited to these provisions in certain cases or they did not fall for consideration, it is felt necessary to address the issue..."
"Viewed from this context, it is evident that Parliament added sub rules (4) and (5) with a definite and avowed object of assessing the running of interest on the deposits made by the decree holder into a Court. The background in which those provisions came to be incorporated has already been indicated in the preceding paragraphs. Sub Rules (4) and (5) by themselves do not disclose as to whether the amount should be adjusted towards principal or interest. However, the expression "interest if any" occurring in both the provisions is significant. A decree may comprise of principle amount claimed in the suit, as well as a component of interest up to the date of decree. Once a decree is passed for certain amount, it becomes a principle by itself and the liability to pay interest thereon, and if so, the rate at which it is to be paid, would depend upon the terms of decree.
The amount that carries the interest till the date of realization would be the one stipulated in the decree. It is not permissible for a Court to award interest on interest. Sub section (3) of Section 3 of the - Interest Act clearly prohibits grant of interest on interest. Therefore, the only component of the decree that can be related to the expression "interest if any" occurring in sub sections (4) and (5) of Rule (1) is the decretal amount, which, in other words, is the principal." "It is true that the cases decided so far, do not strictly support this view, and in a way, may suggest the other point of view. However, an effort is made by this Court, to explain the purport of sub-rules (4) and (5) of Rule 1. This Court is conscious of the requirement to follow the precedents, as well as its obligation, to give effect to the legislative mandate. An endeavor is made to honour both the obligations. Having regard to the importance of the issue and the implications involved in it, further discussion may ensue at appropriate levels."
12. From the above findings of the learned Judge, it appears that he passed the order basing on three considerations: Firstly, the judgments relied upon by the claimants are based on the pre-amended provisions of Order 21 Rule 1 C.P.C. Secondly, in the cases which were decided subsequent to amendment, the issue - of appropriation of amounts has not fallen for consideration. Thirdly, a decree comprises of principal claimed in the suit as well as component of interest. Hence, once a decree is passed for certain amount, it becomes principal by itself and Section 3(3) of Interest Act clearly prohibits grant of interest on interest.
13. Now, before we proceed to decide the legality or otherwise of the order passed by the learned Judge, it is worthwhile to examine Rule 1 of Order XXI of the Code of Civil Procedure, 1908 (for short, 'the CPC'), which reads as under:
"ORDER XXI
EXECUTION OF DECREES AND ORDERS
1. Modes of paying money under decree. -
(1) All money, payable under a decree, shall be paid as follows, namely:-
a) by deposit into the Court whose duty it is to execute the decree, or sent to that Court by postal money order or through a bank; or
b) out of Court, to the decree-holder by postal money order or through a bank or - c) by any other mode wherein payment is evidenced in writing; or
d) otherwise, as the Court which made the decree, directs.
(2) Where any payment is made under clause (a) or clause (c) of sub-rule (1), the judgment-debtor shall give notice thereof to the decree-holder either through the Court or directly to him by registered post, acknowledgement due.
(3) Where money is paid by postal money order or through a bank under clause (a) or clause (b) of sub-rule (1), the money order or payment through bank, as the case may be, shall accurately state the following particulars, namely:-
a) the number of the original suit;
b) the names of the parties or where there are more than two plaintiffs or more than two defendants, as the case may be, the names of the first two plaintiffs and the first two defendants;
c) how the money remitted is to be adjusted, that is to say, whether it is towards the principal, interest or costs;
d) the number of the execution case of the Court, where such case is pending; and e) the name and address of the payer.
(4) On any amount paid under clause (a) or clause (c) of sub- rule (1), interest, if any, shall cease to run from the date of service of the notice referred to in sub-rule (2).
(5) On any amount paid under clause (b) of sub-rule (1), interest, if any, shall cease to run from the date of such payment.
Provided that, where the decree-holder refuses to accept the postal money order or - payment through a bank, interest shall cease to run from the date on which the money was tendered to him, or where he avoids acceptance of the postal money order or payment through bank, interest shall cease to run from the date on which the money would have been tendered to him in the ordinary course of business of the postal authorities or the bank, as the case may be."
14. A bare perusal of the aforesaid provisions makes it amply clear that the scope of Order XXI Rule 1 of the CPC is that the judgment debtor is required to pay the decretal amount in one of the modes specified in sub- rule (1) thereof. Sub-rule (2) of Rule 1 provides that once payment is made under sub-rule (1), it is the duty of the judgment debtor to give notice to the decree-holder through the Court or directly to him by registered post acknowledgement due.
Sub-rule (3) of Rule 1 merely indicates that in case money is paid by postal money order or through a bank under clause (a) or clause (b) of sub-rule (1) thereof, certain particulars are required to be accurately incorporated while making such payment. Sub-rules (4) and (5) of Rule 1 states from which date, interest shall cease to run - in case amount is paid under clause (a) or (c) of sub- rule (1), - interest shall cease to run from the date of service of notice as indicated under sub-rule (2); while in case of out of court payment to the decree- holder by way of any of the modes mentioned under clause (b) of sub-rule (1), interest shall cease to run from the date of such payment.
15. The language contained in the aforesaid sub-rules clearly indicates the appropriation of amount to be made in case the decree contains a specific clause, specifying the manner in which the money deposited to be appropriated. Sub-rule (1)(c) of Rule 1 indicates the money deposited to be appropriated as per the direction of the Court, if there is a provision in that behalf. In the absence of specific direction with regard to appropriation, then only the manner of appropriation would arise for consideration. Sub-rules (2) to (5) of Rule 1 indicate the procedure to be followed when the deposit is made either under clause (a) or (b) of sub-rule (1) thereof, but it does not leave any scope for interpretation with regard to appropriation of deposited amount by the decree-holder. -
16. In this regard, it is also pertinent to extract Rule 472 of the Andhra Pradesh Motor Vehicles Rules, 1989 (for short, 'the A.P.M.V. Rules'), which is as under:
"472. Enforcement of an award of the Claims Tribunal:-
Subject to the provisions of Section 174, the Claims Tribunal shall, for the purpose of enforcement of its award, have all the powers of a Civil Court in the execution of a decree under the Code of Civil Procedure, 1908, as if the award were a decree for the payment of money passed by such Court in a Civil Suit."
The above-said Rule indicates that the award passed by the Claims Tribunal is to be treated as if the decree for the payment of money passed by the Civil Court in a civil suit. Hence, in view of the specific provision contained in the A.P.M.V. Rules, the award passed by the Claims Tribunal is to be treated as a money decree. In Rajasthan State Road Transport Corporation, Jaipur (supra), this Court held that in executing the award of the Claims Tribunal, Executing Court is competent to invoke the beneficial provision under Order 21 Rule 1 of C.P.C. -
17. The Privy Council in Venkatadri Appa Rao Vs. Parthasarathi Appa Rao AIR 1922 PC 233, held as follows: "The question then remains as to how, apart from any specific appropriation, these sums ought to be dealt with. There is a debt due that carries interest. There are moneys that are received without a definite appropriation on the one side or on the other, and the rule which is well established in ordinary cases is that in those circumstances the money is first applied in payment of interest and then when that is satisfied in payment of the capital." (Emphasis supplied) The above principle was reiterated by the Privy Council in Rai Bahadur Sethnemichand Vs. Seth Rada Kishen AIR 1922 PC 26.
18. We may notice that the principle laid down in the above case has been not only approved by the Supreme Court, but also followed in several other subsequent cases. In Meghraj (supra), it was held as under: "4.... Unless the mortgagees were informed that the mortgagors had deposited the amount only towards the principal and not towards the interest, and the mortgagees agreed to withdraw the money from the Court accepting the conditional deposit, the normal rule that - the amounts deposited in Court should first be applied towards satisfaction of the interest and costs and thereafter towards the principal would apply."
19. In Mathunni Mathai (supra), it was held that the right of the decree- holder to appropriate the amount deposited by the judgment debtor, either in the Court or paid outside, towards interest and other expenses is founded both on fairness and necessity. It was observed that the courts and the law have not looked upon favourably where the judgment debtor does not pay or deposit the decretal amount within the time granted as one cannot be permitted to take advantage of his own default. Therefore, the normal rule that is followed is to allow the deposit or payment, if it is in part, to be adjusted towards the interest due, etc.
20. In Industrial Credit and Development Syndicate (supra), it has been held that in cases where the trial court has not prescribed any mode for payment of decretal amount, except fixing the instalments, in the absence of agreement between the parties, regarding the mode of payment of decretal amount, the - general rule of appropriation of payments towards decretal amount is that the said amount is to be adjusted firstly strictly in accordance with the directions contained in the decree and in the absence of such direction, it is to be adjusted firstly towards interest and costs and thereafter towards principal amount. This is, of course, subject to the exception that the parties can agree to the adjustment of payment in any other manner despite the decree. In that case, the Supreme Court had an occasion to consider the method of appropriation and after noticing various decisions of the English Courts and the Privy Council, followed the judgment in Meghraj's case (supra).
21. We may also notice that in Prem Nath Kapur & Anr. Vs. National Fertilizers Corporation, 1996 SCC (2) 71, while differing with the view taken in Mathunni Mathai (supra), it was held that the normal rule of appropriation contained in Order XXI Rule 1 of the CPC relating to execution of decrees for recovery of money stands excluded by Sections 28 and 34 of the - Land Acquisition Act, 1894 and the principles contained therein could not be extended to execution of award decrees under the said Act. The relevant para of the said judgment, being portion of para 14, reads as under:

  • "14. Equally, the right to make appropriation is indicated by necessary implication, by the award itself as the award or decree clearly mentions each of the items. When the deposit is made towards the specified amounts, the claimant/owner is not entitled to deduct from the amount of compensation towards costs, interest, additional amount under Section 23 (1-A) with interest and then to claim the total balance amount with further interest.
... ... ... ... ... ... ... ... ... ... ..."
22. In Gurpreet Singh (supra), the Constitution Bench of this Court had an occasion to consider the issue regarding execution of money decree, the principle of appropriation and its applicability, which was recently followed by this Court in Bharath Heavy Electricals Ltd. Vs. RS Avthar Sing & Co., 2013 (1) SCC 243, and culled down the principles laid down in Gurpreet Singh's case as follows:
a) The general rule of appropriation towards a decretal amount was that -
b) such an amount was to be adjusted strictly in accordance with the directions contained in the decree and in the absence of such directions, adjustment be made firstly towards payment of interest and costs and thereafter towards payment of the principle amount subject, of course, to any agreement between the parties.
c) The legislative intent in enacting sub rules (4) and (5) is clear to the points that interest should cease to run on the deposit made by the judgment debtor and notice given or on the amount being tendered outside the Court in the manner provided in Order 21 Rule 1 sub clause (D).
d) If the payment made by the judgment debtors falls short of the decretal amount, the decree holder will be entitled to apply the general rule of appropriation by appropriating the amount deposited towards the interest, then towards costs and finally towards the principal amount due under the decree.
e) Thereafter, no further interest would run on the sum appropriated towards the principal. In other words, if a -
f) part of the principal amount has been paid along with interest due thereon as on the date of issuance of notice of deposit of interest on the part of the principal sum will cease to run thereafter.
g) In case where there is a shortfall in deposit of the principal amount, the decree holder would be entitled to adjust interest and costs first and then balance towards the principal and beyond that the decree holder cannot seek to reopen the entire transaction and proceed to recalculate the interest on the whole of the principal amount and seek for re-appropriation.
23. In the judgment referred to by the High Court in the impugned judgment, this Court and the Privy Council consistently have taken a view that in case of appropriation of amount unless the decree contains a specific provision, the amounts have to be appropriated as contemplated under Order 21 Rule 1. If there is a shortfall in deposit, the amount has to be adjusted towards interest and costs, then it has to be adjusted towards principal. The High Court has - failed to appreciate this fact and misdirected itself in observing that these judgments are prior to the amendment to Order 21 Rule 1.
In our considered view, as far as this aspect is considered, there is no much difference in the provisions prior to or subsequent to the amendment, because in the objects and reasons for amendment to Order XXI Rule 1, as observed by the Constitution bench in Gurpreet Singh the legislative intent in enacting sub-rules (4) and (5) is that interest should cease on the deposit being made and notice given or on the amount being tendered outside the court in the manner provided. The intent of the rule making authority is to leave no room for any frivolous pleas of payment of money due under a money decree.
24. We may add that the High Court proceeded on the assumption as if sub-rules (4) and (5) of Rule 1, which were inserted pursuant to Amendment to C.P.C. in 1976, there is change in procedural law and the tenor of sub- rule (1) thereof. But, sub-rules (4) and (5) do not have any relevance with regard to appropriation, except stating when interest ceases to - run. Thus, it is no way guide for appropriation of amount as contemplated under Order XXI Rule 1 of the CPC. In Industrial Credit Development Syndicate (supra) which is subsequent to the amendment to the provision, this Court has categorically observed the procedure to be followed and which squarely applies to the case, but the High Court has given its own interpretation to the judgment and failed to consider the law laid down by this Court in its proper perspective.
25. The next finding of the High Court is with regard to interest on interest. In money suit, the amount consists of principal and interest till the suit is filed. But, in case of award passed under the Act, the question of inclusion of any interest on the decretal amount does not arise. Unfortunately, the High Court proceeded on the assumption that it amounts to interest on interest which is prohibited under Section 3(3)(c) of Interest Act, 1978 (for short, 'the Interest Act').
This is not so, as in the facts and circumstances of the present case, the decree passed by the trial Court or - the appellate Court does not contain the mode of appropriation and in the absence of any such direction, the decree-holder is entitled to appropriate the amount deposited by the judgment debtor first towards interest, then cost and thereafter towards principal.
26. In view of above and more particularly keeping in view the ratio of the Constitution Bench judgment in Gurpreet Singh (supra), where considering an identical question in respect of Order XXI Rule 1 of the CPC, it was held that if the amount deposited by the judgment debtor falls short of the decretal amount, the decree-holder is entitled to apply the rule of appropriation by appropriating the amount first towards interest, then towards costs and subsequently towards principal amount due under the decree; we are of the opinion that the appellants herein are entitled to the amount awarded by the Executing Court, as the amounts deposited by the judgment debtor fell short of the decretal amount. After such appropriation, the decree-holder is entitled to interest only to the extent of unpaid - principal amount. Hence, interest be calculated on the unpaid principal amount.
27. We, therefore, allow the appeal, set aside the impugned judgment dated 29.07.2005 passed by the High Court and restore that of the Executing Court dated 18.08.2004.
28. No orders as to costs.
.................C.J.I. (P. SATHASIVAM)
.....................J. (RANJAN GOGOI)
.....................J. (N.V. RAMANA)
New Delhi,
April 01, 2014.