Sunday, October 30, 2011

Ganduri Koteshwaramma & Anr. vs Chakiri Yanadi & Anr.

Hindu Succession  Act- A Hindu woman or girl will have equal property rights along with other male relatives for any partition made in intestate succession after September 2005. under the Hindu Succession (Amendment) Act, 2005, the daughters are entitled to equal inheritance rights along with other male siblings, which was not available to them prior to the amendment. The female inheritors would not only have the succession rights but also the same liabilities fastened on the property along with the male members..

Supreme Court of India
CIVIL APPEAL NO. 8538 OF 2011
(Arising out of SLP (Civil) No. 9586 of 2010)
Hon'ble Judge(s): R.M. Lodha, Jagdish Singh Khehar
Date of Judgment: October 12, 2011
Ganduri Koteshwaramma & Anr. vs Chakiri Yanadi & Anr.
Citation


J U D G M E N T

R.M. Lodha, J.

1. Leave granted.

2. The question that arises in this appeal, by special leave, is: whether the benefits of Hindu Succession (Amendment) Act, 2005 are available to the appellants.

3. The appellants and the respondents are siblings being daughters and sons of Chakiri Venkata Swamy. The 1 st respondent (plaintiff) filed a suit for partition in the court of Senior Civil Judge, Ongole impleading his father Chakiri Venkata Swamy (1st defendant), his brother Chakiri Anji Babu (2nd defendant) and his two sisters - the present appellants - as 3rd and 4th defendant respectively. In respect of schedule properties 'A', 'C' and 'D' - coparcenary property - the plaintiff claimed that he, 1st defendant and 2nd defendant have 1/3rd share each. As regards schedule property 'B'--as the property belonged to his mother--he claimed that all the parties have 1/5th equal share.

4. The 1st defendant died in 1993 during the pendency of the suit.

5. The trial court vide its judgment and preliminary decree dated March 19, 1999 declared that plaintiff was entitled to 1/3 rd share in the schedule 'A', 'C' and 'D' properties and further entitled to 1/4th share in the 1/3rd share left by the 1st defendant. As regards schedule property 'B' the plaintiff was declared to be entitled to 1/5 th share. The controversy in the present appeal does not relate to schedule 'B' property and is confined to schedule 'A', 'C' and 'D' properties. The trial court ordered for separate enquiry as regards mesne profits.

6. The above preliminary decree was amended on September 27, 2003 declaring that plaintiff was entitled to equal share along with 2nd, 3rd and 4th defendant in 1/5th share left by the 1st defendant in schedule property 'B'.

7. In furtherance of the preliminary decree dated March 19, 1999 and the amended preliminary decree dated September 27, 2003, the plaintiff made two applications before the trial court (i) for passing the final decree in terms thereof; and (ii) for determination of mesne profits. The trial court appointed the Commissioner for division of the schedule property and in that regard directed him to submit his report. The Commissioner submitted his report.

8. In the course of consideration of the report submitted by the Commissioner and before passing of the final decree, the Hindu Succession (Amendment) Act, 2005 (for short, '2005 Amendment Act') came into force on September 9, 2005. By 2005 Amendment Act, Section 6 of the Hindu Succession Act, 1956 (for short '1956 Act') was substituted. Having regard to 2005 Amendment Act which we shall refer to appropriately at a later stage, the present appellants (3rd and 4th defendant) made an application for passing the preliminary decree in their favour for partition of schedule properties 'A', 'C' and 'D' into four equal shares; allot one share to each of them by metes and bounds and for delivery of possession.

9. The application made by 3rd and 4th defendant was contested by the plaintiff. Insofar as 2nd defendant is concerned he admitted that the 3rd and 4th defendant are entitled to share as claimed by them pursuant to 2005 Amendment Act but he also submitted that they were liable for the debts of the family.

10. The trial court, on hearing the parties, by its order dated June 15, 2009, allowed the application of the present appellants (3rd and 4th defendant) and held that they were entitled for re-allotment of shares in the preliminary decree, i.e., they are entitled to 1/4th share each and separate possession in schedule properties 'A', 'C' and 'D'.

11. The plaintiff (present respondent no. 1) challenged the order of the trial court in appeal before the Andhra Pradesh High Court. The Single Judge by his order dated August 26, 2009 allowed the appeal and set aside the order of the trial court.

12. 1956 Act is an Act to codify the law relating to intestate succession among Hindus. This Act has brought about important changes in the law of succession but without affecting the special rights of the members of a Mitakshara Coparcenary. The Parliament felt that non-inclusion of daughters in the Mitakshara Coparcenary property was causing discrimination to them and, accordingly, decided to bring in necessary changes in the law. The statement of 4objects and reasons of the 2005 Amendment Act, inter alia, reads as under : ".......The retention of the Mitakshara coparcenary property without including the females in it means that the females cannot inherit in ancestral property as their male counterparts do. The law by excluding the daughter from participating in the coparcenary ownership not only contributes to her discrimination on the ground of gender but also has led to oppression and negation of her fundamental right of equality guaranteed by the Constitution. Having regard to the need to render social justice to women, the States of Andhra Pradesh, Tamil Nadu, Karnataka and Maharashtra have made necessary changes in the law giving equal right to daughters in Hindu Mitakshara coparcenary property."

13. With the above object in mind, the Parliament substituted the existing Section 6 of the 1956 Act by a new provision vide 2005 Amendment Act. After substitution, the new Section 6 reads as follows : "6. Devolution of interest in coparcenary property. (1) On and from the commencement of the Hindu Succession (Amendment) Act, 2005, in a Joint Hindu family governed by the Mitakshara law, the daughter of a coparcener shall, (a) by birth become a coparcener in her own right in the same manner as the son; (b) have the same rights in the coparcenary property as she would have had if she had been a son; (c) be subject to the same liabilities in respect of the said coparcenary property as that of a son, 5and any reference to a Hindu Mitakshara coparcener shall be deemed to include a reference to a daughter of a coparcener: Provided that nothing contained in this sub-section shall affect or invalidate any disposition or alienation including any partition or testamentary disposition of property which had taken place before the 20th day of December, 2004.

(2) Any property to which a female Hindu becomes entitled by virtue of sub-section (1) shall be held by her with the incidents of coparcenary ownership and shall be regarded, notwithstanding anything contained in this Act or any other law for the time being in force in, as property capable of being disposed of by her by testamentary disposition. (3) Where a Hindu dies after the commencement of the Hindu Succession (Amendment) Act, 2005, his interest in the property of a Joint Hindu family governed by the Mitakshara law, shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship, and the coparcenary property shall be deemed to have been divided as if a partition had taken place and,-

(a) the daughter is allotted the same share as is allotted to a son; (b) the share of the pre-deceased son or a pre- deceased daughter, as they would have got had they been alive at the time of partition, shall be allotted to the surviving child of such pre-deceased son or of such pre-deceased daughter; and (c) the share of the pre-deceased child of a pre- deceased son or of a pre-deceased daughter, as such child would have got had he or she been alive at the time of the partition, shall be allotted to the child of such pre-deceased child of the pre- deceased son or a pre-deceased daughter, as the case may be. Explanation.- For the purposes of this sub-section, the interest of a Hindu Mitakshara coparcener shall be deemed to be the share in the property that would have been 6allotted to him if a partition of the property had taken place immediately before his death, irrespective of whether he was entitled to claim partition or not.

(4) After the commencement of the Hindu Succession (Amendment) Act, 2005, no court shall recognise any right to proceed against a son, grandson or great-grandson for the recovery of any debt due from his father, grandfather or great-grandfather solely on the ground of the pious obligation under the Hindu law, of such son, grandson or great-grandson to discharge any such debt: Provided that in the case of any debt contracted before the commencement of the Hindu Succession (Amendment) Act, 2005, nothing contained in this sub-section shall affect

(a) the right of any creditor to proceed against the son, grandson or great-grandson, as the case may be; or (b) any alienation made in respect of or in satisfaction of, any such debt, and any such right or alienation shall be enforceable under the rule of pious obligation in the same manner and to the same extent as it would have been enforceable as if the Hindu Succession (Amendment) Act, 2005 had not been enacted. Explanation.

For the purposes of clause (a), the expression "son", "grandson" or "great-grandson" shall be deemed to refer to the son, grandson or great-grandson, as the case may be, who was born or adopted prior to the commencement of the Hindu Succession (Amendment) Act, 2005. (5) Nothing contained in this section shall apply to a partition, which has been effected before the 20th day of December, 2004. Explanation. For the purposes of this section "partition" means any partition made by execution of a deed of partition duly registered under the Registration Act, 1908 (16 of 1908) or partition effected by a decree of a court."

14. The new Section 6 provides for parity of rights in the coparcenary property among male and female members of a joint Hindu family on and from September 9, 2005. The Legislature has now conferred substantive right in favour of the daughters. According to the new Section 6, the daughter of a copercener becomes a coparcener by birth in her own rights and liabilities in the same manner as the son. The declaration in Section 6 that the daughter of the coparcener shall have same rights and liabilities in the coparcenary property as she would have been a son is unambiguous and unequivocal. Thus, on and from September 9, 2005, the daughter is entitled to a share in the ancestral property and is a coparcener as if she had been a son.

15. The right accrued to a daughter in the property of a joint Hindu family governed by the Mitakshara Law, by virtue of the 2005 Amendment Act, is absolute, except in the circumstances provided in the proviso appended to sub-section (1) of Section 6. The excepted categories to which new Section 6 of the 1956 Act is not applicable are two, namely,

(i) where the disposition or alienation including any partition has taken place before December 20, 2004; and (ii) where testamentary disposition of property has been made before December 20, 2004. Sub- section (5) of Section 6 leaves no room for doubt as it provides that this Section shall not apply to the partition which has been effected before December 20, 2004.

For the purposes of new Section 6 it is explained that 'partition' means any partition made by execution of a deed of partition duly registered under the Registration Act 1908 or partition effected by a decree of a court. In light of a clear provision contained in the Explanation appended to sub-section (5) of Section 6, for determining the non-applicability of the Section, what is relevant is to find out whether the partition has been effected before December 20, 2004 by deed of partition duly registered under the Registration Act, 1908 or by a decree of a court. In the backdrop of the above legal position with reference to Section 6 brought in the 1956 Act by the 2005 Amendment Act, the question that we have to answer is as to whether the preliminary decree passed by the trial court on March 19, 1999 and amended on September 27, 2003 deprives the appellants of the benefits of 2005 Amendment Act although final decree for partition has not yet been passed.

16. The legal position is settled that partition of a Joint Hindu family can be effected by various modes, inter-alia, two of these modes are (one) by a registered instrument of a partition and (two) by a decree of the court. In the present case, admittedly, the partition 9has not been effected before December 20, 2004 either by a registered instrument of partition or by a decree of the court. The only stage that has reached in the suit for partition filed by the respondent no.1 is the determination of shares vide preliminary decree dated March 19, 1999 which came to be amended on September 27, 2003 and the receipt of the report of the Commissioner.

17. A preliminary decree determines the rights and interests of the parties. The suit for partition is not disposed of by passing of the preliminary decree. It is by a final decree that the immovable property of joint Hindu family is partitioned by metes and bounds. After the passing of the preliminary decree, the suit continues until the final decree is passed. If in the interregnum i.e. after passing of the preliminary decree and before the final decree is passed, the events and supervening circumstances occur necessitating change in shares, there is no impediment for the court to amend the preliminary decree or pass another preliminary decree redetermining the rights and interests of the parties having regard to the changed situation.

We are fortified in our view by a 3 Judge Bench decision of this 10Court in the case of Phoolchand and Anr. Vs. Gopal Lal 1 wherein this Court stated as follows: "We are of opinion that there is nothing in the Code of Civil Procedure which prohibits the passing of more than one preliminary decree if circumstances justify the same and that it may be necessary to do so particularly in partition suits when after the preliminary decree some parties die and shares of other parties are thereby augmented. . . . ..

So far therefore as partition suits are concerned we have no doubt that if an event transpires after the preliminary decree which necessitates a change in shares, the court can and should do so; ........... there is no prohibition in the Code of Civil Procedure against passing a second preliminary decree in such circumstances and we do not see why we should rule out a second preliminary decree in such circumstances only on the ground that the Code of Civil Procedure does not contemplate such a possibility. . . for it must not be forgotten that the suit is not over till the final decree is passed and the court has jurisdiction to decide all disputes that may arise after the preliminary decree, particularly in a partition suit due to deaths of some of the parties. . . . .a second preliminary decree can be passed in partition suits by which the shares allotted in the preliminary decree already passed can be amended and if there is dispute between surviving parties in that behalf and that dispute is decided the decision amounts to a decree.... ............ ."

18. This Court in the case of S. Sai Reddy vs. S. Narayana Reddy and Others2 had an occasion to consider the question identical to the question with which we are faced in the present appeal. That was a case where during the pendency of the proceedings in the suit for partition before the trial court and prior to 1 AIR 1967 SC 1470 2 (1991) 3 SCC 647 11the passing of final decree, the 1956 Act was amended by the State Legislature of Andhra Pradesh as a result of which unmarried daughters became entitled to a share in the joint family property.

The unmarried daughters respondents 2 to 5 therein made application before the trial court claiming their share in the property after the State amendment in the 1956 Act. The trial court by its judgment and order dated August 24, 1989 rejected their application on the ground that the preliminary decree had already been passed and specific shares of the parties had been declared and, thus, it was not open to the unmarried daughters to claim share in the property by virtue of the State amendment in the 1956 Act. The unmarried daughters preferred revision against the order of the trial court before the High Court. The High Court set aside the order of the trial court and declared that in view of the newly added Section 29-A, the unmarried daughters were entitled to share in the joint family property.

The High Court further directed the trial court to determine the shares of the unmarried daughters accordingly. The appellant therein challenged the order of the High Court before this Court. This Court considered the matter thus; ".........A partition of the joint Hindu family can be effected by various modes, viz., by a family settlement, by a registered instrument of partition, by oral arrangement by the parties, or by a decree of the court. When a suit for partition is filed in a court, a preliminary decree is passed determining shares of the members of the family.

The final decree follows, thereafter, allotting specific properties and directing the partition of the immovable properties by metes and bounds. Unless and until the final decree is passed and the allottees of the shares are put in possession of the respective property, the partition is not complete.

The preliminary decree which determines shares does not bring about the final partition. For, pending the final decree the shares themselves are liable to be varied on account of the intervening events. In the instant case, there is no dispute that only a preliminary decree had been passed and before the final decree could be passed the amending Act came into force as a result of which clause (ii) of Section 29-A of the Act became applicable. This intervening event which gave shares to respondents 2 to 5 had the effect of varying shares of the parties like any supervening development.

Since the legislation is beneficial and placed on the statute book with the avowed object of benefitting women which is a vulnerable section of the society in all its stratas, it is necessary to give a liberal effect to it. For this reason also, we cannot equate the concept of partition that the legislature has in mind in the present case with a mere severance of the status of the joint family which can be effected by an expression of a mere desire by a family member to do so.

The partition that the legislature has in mind in the present case is undoubtedly a partition completed in all respects and which has brought about an irreversible situation. A preliminary decree which merely declares shares which are themselves liable to change does not bring about any irreversible situation. Hence, we are of the view that unless a partition of the property is effected by metes and bounds, the daughters cannot be deprived of the benefits conferred by the Act. Any other view is likely to deprive a vast section of the fair sex of the benefits conferred by the amendment. Spurious family settlements, instruments of partitions not to speak of oral partitions will spring up and nullify the beneficial effect of the legislation depriving a vast section of women of its benefits".

19. The above legal position is wholly and squarely applicable to the present case. It surprises us that the High Court was not 13apprised of the decisions of this Court in Phoolchand1 and S. Sai Reddy2. High Court considered the matter as follows: "In the recent past, the Parliament amended Section 6 of the Hindu Succession Act (for short 'the Act'), according status of coparceners to the female members of the family also. Basing their claim on amended Section 6 of the Act, the respondents 1 and 2 i.e., defendants 3 and 4 filed I.A. No. 564 of 2007 under Order XX Rule 18 of C.P.C., a provision, which applies only to preparation of final decree.

It hardly needs an emphasis that a final decree is always required to be in conformity with the preliminary decree. If any party wants alteration or change of preliminary decree, the only course open to him or her is to file an appeal or to seek other remedies vis-'-vis the preliminary decree. As long as the preliminary decree stands, the allotment of shares cannot be in a manner different from what is ordained in it."

20. The High Court was clearly in error in not properly appreciating the scope of Order XX Rule 18 of C.P.C. In a suit for partition of immovable property, if such property is not assessed to the payment of revenue to the government, ordinarily passing of a preliminary decree declaring the share of the parties may be required. The court would thereafter proceed for preparation of final decree. In Phoolchand1, this Court has stated the legal position that C.P.C. creates no impediment for even more than one preliminary decree if after passing of the preliminary decree events have taken place necessitating the readjustment of shares as declared in the preliminary decree.

The court has always power to revise the preliminary decree or pass another preliminary decree if the situation in the changed circumstances so demand. A suit for partition continues after the passing of the preliminary decree and the proceedings in the suit get extinguished only on passing of the final decree. It is not correct statement of law that once a preliminary decree has been passed, it is not capable of modification. It needs no emphasis that the rights of the parties in a partition suit should be settled once for all in that suit alone and no other proceedings.

21. Section 97 of C. P.C. that provides that where any party aggrieved by a preliminary decree passed after the commencement of the Code does not appeal from such decree, he shall be precluded from disputing its correctness in any appeal which may be preferred from the final decree does not create any hindrance or obstruction in the power of the court to modify, amend or alter the preliminary decree or pass another preliminary decree if the changed circumstances so require.

22. It is true that final decree is always required to be in conformity with the preliminary decree but that does not mean that a preliminary decree, before the final decree is passed, cannot be altered or amended or modified by the trial court in the event of changed or supervening circumstances even if no appeal has been preferred from such preliminary decree.

23. The view of the High Court is against law and the decisions of this Court in Phoolchand1 and S.Sai Reddy.

24. We accordingly allow this appeal; set aside the impugned judgment of the High Court and restore the order of the trial court dated June 15, 2009. The trial court shall now proceed for the preparation of the final decree in terms of its order dated June 15, 2009. No costs.

Surinder Kumar Vs. State of Haryana

Indian Evidence Act,1872-Section 32 - Normally the court in order to satisfy whether the deceased was in a fit mental condition to make the dying declaration look up to the medical opinion. But where the eyewitness has said that the deceased was in a fit and conscious state to make the dying declaration, the medical opinion cannot prevail. Where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon. 

 
Supreme Court of India
CRIMINAL APPEAL NO. 328 OF 2004
Hon'ble Judge(s):  B.S. Chauhan, A.K. Patnaik
Date of Judgment: October 21, 2011  
Surinder Kumar Vs. State of Haryana
Citation


J U D G M E N T


P. Sathasivam, J.

1. This appeal is directed against the final judgment and order dated 19.12.2003 passed by the High Court of Punjab and Haryana at Chandigarh in Criminal Appeal No. 241-DBA of 1993 whereby the High Court while reversing the judgment dated 17.12.1992 passed by the Sessions Judge, Ambala allowed the appeal filed by the State and convicted the appellant herein under Section 302 of the Indian Penal Code, 1860 (in short `IPC') and sentenced him to undergo rigorous imprisonment for life and to pay a fine of Rs.25,000/- and in default of payment of fine, to further undergo rigorous imprisonment for one year.

2. Brief facts:

(a) According to the prosecution, the accusation against the appellant-accused was that he was on visiting terms to the house of Inder Pal (PW-7), husband of Kamlesh Rani (since deceased), who was working at Mullana and keeping his family at Naraingarh, Dist. Ambala, Haryana. The appellant-accused had been visiting Inder Pal's house and developed illicit relationship with his wife-Kamlesh Rani. Inder Pal (PW-7) suspected the same between them and stopped his wife from meeting the appellant-accused. When the appellant-accused was stopped to visit their house, he had started threatening and harassing Kamlesh Rani for which she made a complaint to her husband. Inder Pal (PW-7) also visited the shop of the appellant-accused and told him not to visit his house and harass his wife.

(b) On the intervening night of 25/26.06.1991, when Inder Pal (PW-7) was away from his house, the appellant-accused went to his house and taunted his wife that she had become a woman of immoral character and called upon her to burn herself to death if she had any sense of shame. Thereafter, the appellant-accused picked up a kerosene can lying in the one room apartment and after pouring the same on the deceased, set her on fire. When the fire developed, the appellant-accused ran away from the room after placing a quilt on the deceased.

The neighbours of the deceased took her to the Civil Hospital, Naraingarh where she was examined by Dr. Ashwani Kumar Kashyap, Medical Officer (PW-1). He immediately sent intimation to In-charge Police Station, Naraingarh to the effect that the deceased had been brought to the hospital with 100% burns, and as the condition of the patient was critical she had been referred to P.G.I., Chandigarh. At P.G.I. Chandigarh, she was admitted in the Emergency Ward and Dr.Vipul Sood (PW-9) examined her and reported a case of 95% burn injuries. (c) On receiving the information, Dalip Rattan (PW-3), Sub-Inspector,

P.S. West, Chandigarh applied to the Sub-Divisional Magistrate, Chandigarh for appointment of an Executive Magistrate to record the statement of Kamlesh Rani. Consequently, Shri P.K. Sharma, Tehsildar-cum-Executive Magistrate (PW-2) was deputed to record her statement. On 26.06.1991, PW-2 recorded her statement and a First Information Report was registered being No. 86/1991 at P.S. Naraingarh at 5.30 p.m. under Section 307 IPC. On the intervening night of 28/29.06.1991, Kamlesh Rani succumbed to the injuries and the case was converted into Section 302 IPC.

Thereafter, Ram Niwas (PW-13), Sub Inspector, P.S. Ambala, arrived at P.G.I., Chandigarh and prepared the inquest report. Post mortem was conducted at General Hospital, Sector 16, Chandigarh by Dr. V.K. Chopra and Dr. Ajay Verma (PW-12) on 29.06.1991 at 4.45 p.m. On the same day, the accused was arrested and the case was committed to the Court of Sessions. (d) The Sessions Judge, Ambala, after analyzing the evidence and after giving the benefit of doubt, vide judgment dated 17.12.1992 acquitted the appellant-accused.

e) Challenging the said judgment, the State of Haryana filed an appeal bearing Criminal Appeal No. 241-DBA of 1993 before the Division Bench of the High Court. The High Court, vide judgment dated 19.12.2003, reversed the judgment of the Sessions Judge, Ambala and sentenced the appellant-accused to rigorous imprisonment for life and imposed a fine of Rs.25,000/- and in default of payment of fine, to further undergo rigorous imprisonment for one year. (f) Aggrieved by the said judgment, the appellant-accused has filed this appeal before this Court.

3. Heard Mr. Sushil Kumar, learned senior counsel for the appellant-accused and Mr. Manjit Singh, learned Additional Advocate General for the respondent-State.

4. The trial Court based on the dying declaration Ex. PD alleged to have been made by the deceased-Kamlesh Rani before Shri P.K. Sharma (PW-2), Executive Magistrate, Chandigarh and after finding that it does not inspire confidence in the mind of the Court and being the only evidence appearing against the accused, after giving the benefit of doubt in his favour, acquitted from the charges levelled against him.

On the other hand, the High Court relying on the dying declaration holding that it is extremely difficult to reject the dying declaration altogether and finding that in the said dying declaration the deceased had positively stated that she had been immolated by the accused/appellant, set aside the order of acquittal passed by the trial Court and found him guilty under Section 302 IPC and sentenced to undergo rigorous imprisonment for life. In view of the same, the only question for consideration in this appeal is whether the dying declaration Ex. PD of Kamlesh Rani is reliable, acceptable and based on which conviction is sustainable.

5. We have already referred to the accusation against the accused that he was on visiting terms to the house of Inder Pal-husband of the deceased who was keeping his family at Naraingarh, however, working at Mullana. The accused Surinder Kumar had been visiting the house of the deceased-Kamlesh Rani during the absence of her husband Inder Pal. Inder Pal suspected illicit relationship between Surinder Kumar and his wife Kamlesh Rani.

It is further seen that on the date of occurrence, that is, on 26.06.1991, Kamlesh Rani 6went to the cinema in the company of four other ladies. On the same evening, Surinder Kumar confronted her of having loose character and called upon her to immolate herself to death if she had any sense of shame. Thereafter, Surinder Kumar picked up a kerosene can lying in the one-room apartment and after pouring the same on Kamlesh Rani set her on fire.

When the fire developed, he ran away from the room after placing a quilt on her person. On hearing her cries, neighbours reached at the spot and carried her to the Civil Hospital, Naraingarh and then she had been shifted to PGI Hospital, Chandigarh where she made a dying declaration statement before P.K. Sharma, (PW-2), Executive Magistrate and thereafter on 28/29.06.1991, she succumbed to her injuries.

6. Before considering the acceptability of dying declaration (Ex.PD), it would be useful to refer the legal position.(i) In Sham Shankar Kankaria vs. State of Maharashtra, (2006) 13 SCC 165, this Court held as under: "10. This is a case where the basis of conviction of the accused is the dying declaration. The situation in which a person is on deathbed is so solemn and serene when he is dying that the grave position in which he is placed, is the reason in law to accept veracity of his statement.

It is for this reason the requirements of oath and cross-examination are dispensed with. Besides, should the dying declaration be excluded it will result in miscarriage of justice because the victim being generally the only eyewitness in a serious crime, the exclusion of the statement would leave the court without a scrap of evidence. 11. Though a dying declaration is entitled to great weight, it is worthwhile to note that the accused has no power of cross-examination. Such a power is essential for eliciting the truth as an obligation of oath could be. This is the reason the court also insists that the dying declaration should be of such a nature as to inspire full confidence of the court in its correctness.

The court has to be on guard that the statement of deceased was not as a result of either tutoring or prompting or a product of imagination. The court must be further satisfied that the deceased was in a fit state of mind after a clear opportunity to observe and identify the assailant. Once the court is satisfied that the declaration was true and voluntary, undoubtedly, it can base its conviction without any further corroboration.

It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated. The rule requiring corroboration is merely a rule of prudence. This Court has laid down in several judgments the principles governing dying declaration, which c ould be summed up as under as indicated in Pa niben v. S tate of Gujarat (1992) 2 SCC 474 (SCC pp.480 -8 1, para 18) (Emphasis supplied)

(i) There is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration. (See Munnu Raja v. State of M.P.,(1976) 3 SCC 104)

(ii) If the Court is satisfied that the dying declaration is true and voluntary it can base conviction on it, without corroboration. (See State of U.P. v. Ram Sagar Yadav, (1985) 1 SCC 552 and Ramawati Devi v. State of Bihar,(1983) 1 SCC 211)

(iii) The Court has to scrutinise the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. The deceased had an opportunity to observe and identify the assailants and was in a fit state to make the declaration. (See K. Ramachandra Reddy v. Public Prosecutor,(1976) 3 SCC 618)

(iv) Where dying declaration is suspicious, it should not be acted upon without corroborative evidence. (See Rasheed Beg v. State of M.P.,(1974) 4 SCC 264 )

(v) Where the deceased was unconscious and could never make any dying declaration the evidence with regard to it is to be rejected. (See Kake Singh v. State of M.P., 1981 Supp SCC 25)

(vi) A dying declaration which suffers from infirmity cannot form the basis of conviction. (See Ram Manorath v. State of U.P.,(1981) 2 SCC 654)

(vii) Merely because a dying declaration does contain the details as to the occurrence, it is not to be rejected. (See State of Maharashtra v. Krishnamurti Laxmipati Naidu,1980 Supp SCC 455)

(viii) Equally, merely because it is a brief statement, it is not to be discarded. On the contrary, the shortness of the statement itself guarantees truth. (See Surajdeo Ojha v. State of Bihar,1980 Supp SCC 769.) (ix) Normally the court in order to satisfy whether the deceased was in a fit mental condition to make the dying declaration look up to the medical opinion. But where the eyewitness has said that the deceased was in a fit and conscious state to make the dying declaration, the medical opinion cannot prevail. (See Nanhau Ram v. State of M.P.,1988 Supp SCC 152)

(x) Where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon. (See State of U.P. v. Madan Mohan, (1989) 3 SCC 390)

(xi) Where there are more than one statement in the nature of dying declaration, one first in point of time must be preferred. Of course, if the plurality of dying declaration could be held to be trustworthy and reliable, it has to be accepted. (See Mohanlal Gangaram Gehani v. State of Maharashtra,(1982) 1 SCC 700)"

(ii) In Puran Chand vs. State of Haryana, (2010) 6 SCC 566, this Court once again reiterated the abovementioned principles. (iii) In Panneerselvam vs. State of Tamil Nadu, (2008) 17 SCC 190, a Bench of three Judges of this Court reiterating various principles mentioned above held that it cannot be laid 9down as an absolute rule of law that the dying declaration cannot form the sole basis of the conviction unless it is corroborated and the rule requiring corroboration is merely a rule of prudence.

7. In the light of the above principles, the acceptability of the alleged dying declaration in the instant case has to be considered. If, after careful scrutiny, the Court is satisfied that it is free from any effort to induce the deceased to make a false statement and if it is coherent and consistent, there shall be no legal impediment to make a basis of conviction, even if there is no corroboration. With these principles, let us consider the statement of Kamlesh Rani and its acceptability.

8. Kamlesh Rani was initially taken to the Civil Hospital, Naraingarh at 2.20 a.m. on 26.06.1991 where she was initially examined by Dr. Ashwani Kumar Kashyap (PW-1). The said Medical Officer immediately sent intimation to In-charge P.S. Naraingarh to the effect that Kamlesh Rani had been brought to the hospital with 100% burns, the patient was critical and had been referred to PGI, Chandigarh. Thereafter, at P.G.I., she was admitted in the Emergency ward and Dr. Vipul Sood 10(PW-9) examined her at 04:35 a.m. and reported a case of 95% burns.

It is further seen that on receiving information, Sub-inspector Dalip Rattan (PW-3) applied to the Sub-Divisional Magistrate, Chandigarh for appointment of Executive Magistrate to record Kamlesh Rani's statement. Based on the same, Shri P.K. Sharma, Tahsildar-cum-Executive Magistrate (PW-2) was deputed to record her statement. The Magistrate who reached PGI applied to the Doctor In-charge to certify if Kamlesh Rani was mentally and physically fit to make a statement or not. The doctor certified at 07.25 a.m. that she was fit to make a statement. Thereafter, Kamlesh Rani's statement was recorded which is marked as Ex. PD.

It was marked with thumb impression of Kamlesh Rani and signed by the Magistrate at 7.45 a.m. It is relevant to note the said dying declaration which reads thus: "Yesterday, at about 10:00 o'clock four ladies came to my house and asked me to accompany them to see a movie and we all had gone to see the movie. One boy Subhash was also seeing movie. He was sitting there on the back seat. After seeing the movie, I came back to my house. Surinder Kumar Garg who is a so-called brother (dharma Bhai) of my husband came in the evening and asked me that I had gone to see picture and stated that I had become a bad character. My husband is doing service at Mullana and lives there.

At that time, he was at Mullana. Then Surinder said if I had any sense of shame, I should die by burning myself. Then, he took kerosene from a container (small peepi) and 11 sprinkled it over me and set me on fire with a match stick. When I was in flame, he put a quilt upon me and ran away. My neighbour removed me to Naraingarh hospital and from there I was referred to P.G.I., Chandigarh. I have made my statement in full senses and without any pressure."As observed earlier, initially, the trial Court acquitted the accused and the High Court convicted him solely on the basis of the above declaration. In the light of the same, we have to find out whether the dying declaration made and recorded is acceptable and whether it satisfied the required norms/procedure as held by this Court.

In other words, we have to see whether the dying declaration inspire the confidence of the court. It is not in dispute that if the dying declaration is by a person who is conscious and the same was made and recorded after due certification by the doctor, it cannot be ignored. In the first sentence of Ex. PD, it has been mentioned that on the date of occurrence, she had gone for a movie at 10.00 O' clock with four other ladies. According to her, these ladies came to her house and on their request she also went to see the movie and returned back to her home.

Though I.O. has examined some persons, there is no information about the "four ladies" who accompanied the deceased to the cinema house. The I.O. did not care to verify those four ladies who accompanied the deceased to the cinema house. In the same declaration, she also stated that apart from the four ladies one boy Subhash was also seeing the movie along with them. According to her, he was sitting there on the back seat. The said Subhash was also not examined by the I.O. Non-examination of four ladies, who accompanied the deceased to the cinema house and no information about Subhash gave an impression that the I.O. had not properly conducted the investigation.

If at least one of the ladies or Subhash was examined, it would strengthen the prosecution case. However, the I.O. purposely omitted to examine the ladies who went for cinema and in the same manner no effort was made to trace Subhash whom the deceased saw at the movie. None of the so-called neighbours were produced at the trial. The landlord of the deceased-Ram Rattan was not examined at the trial. It was Ram Rattan who had driven the van to take Kamlesh Rani from Civil Hospital, Naraingarh to PGI, Chandigarh.

It is to be noted that Kamlesh Rani's sister's husband Surinder Pal informed Inder Pal-husband of the deceased about the incident. Inder Pal and Surinder Pal had together gone to Chandigarh and later met Kamlesh Rani. For the reasons best known to the I.O., the said Surinder Pal was not examined on the side of the prosecution. In other words, non-examination of any one of the ladies who accompanied the deceased to cinema in the morning, presence of Subhash and the landlord of the deceased, namely, Ram Rattan, another tenant Jeet Singh were all vital to the prosecution.

All these were important omissions on the part of the I.O. When Hira Lal (PW-11), Assistant Sub-Inspector was examined, he fairly admitted that he had not obtained opinion of the Doctor at that time about her fitness to make a statement. Another doctor-PW-12, who conducted post mortem, had opined that the cause of death is septicemia due to extensive burns (approx. 97%) which is sufficient to cause death in ordinary course of nature.

9. Ram Niwas (PW-13), Sub-inspector also admitted that he did not make any effort to ascertain the women who had accompanied Kamlesh Rani to see the movie. He also admitted that he had not associated Subhash referred to in 14the dying declaration during investigation. He fairly admitted that he had no knowledge about any person by name Surinder Pal who happened to be sister's husband of Kamlesh Rani who was employed in Civil Hospital, Naraingarh. All the above infirmities/defects have not been properly explained by the prosecution.

10. Now coming to her state of mind, all the doctors have mentioned that she was admitted with burn injuries to the extent of 100% and after sometime she succumbed to the injuries. It is true that P.K. Sharma (PW-2), Tahsildar-cum-Executive Magistrate recorded her statement. In his evidence, PW-2 has stated that on the orders of Shri Jagjit Puri, SDM, Union Territory of Chandigarh, by his order Ex. PB/1 deputed him to record the statement of Kamlesh Rani. Pursuant to the said direction, he went to the PGI and moved an application to seek the opinion of the doctor whether Kamlesh Rani was fit to make a statement or not.

He further deposed that when he had contacted Kamlesh Rani she was present in the general ward and some persons were also standing there, they left the room on his direction. About the absence of the doctor certifying at the time and date when she made a statement, he clarified that the doctor issuing such certificate was busy with his professional work. Kamlesh Rani had made a statement in local dialect of mixed Hindi/Punjabi and PW-2 had recorded her statement in Hindi script. Here again, it was pointed out that these were not factually correct.

In view of the doubt, we verified the original which is in Hindi script only and not local dialect in mixed Hindi/Punjabi. Though, according to PW-2, she put her thumb impression, in view of the evidence of the doctors that she was brought to hospital with 100% burns and at the time of recording her statement, she suffered 95-97% burn injuries, it is highly doubtful whether it would be possible for her to have her thumb impression below her statement. It is also not clear that when the whole body is burnt and bandaged how the thumb impression of the deceased was obtained.

11. We have already noted that admittedly at the time of recording the statement of the deceased by PW-2, no endorsement of the doctor was made about her position to make such statement. On the other hand, an application was filed by Hira Lal, (PW-11) to Doctor In-charge PGI, Chandigarh seeking clarification "whether she is fit to make the statement or not" and for the said query an endorsement was made by the doctor mentioning that "patient conscious answering the questions, patient fit to give statement".

We compared the dying declaration Ex. PD recorded by PW-2 as well as the endorsement made in the requisition of Hira Lal, ASI (PW-11). The verification of both the documents show different doctors have certified and made such a statement. Dr. Vipul Sood, PW-9, PGI Chandigarh in his evidence has stated Kamlesh Rani was admitted in the Emergency ward of PGI Hospital on 26.06.1991 at about 4.30 a.m. with 95% burns. He also deposed that when Ex. C/1 was submitted by P.K. Sharma, PW-2 on which he gave his opinion that the patient is fit to make a statement on 26.06.1991 at about 7.25 a.m.

It is clear that at the time when PW-2 recorded the statement of the deceased Dr. Vipul Sood (PW-9) was not present and subsequently on the request of the police officer, he offered his opinion to the effect that the patient was fit to make a 17statement. The procedure adopted by PW-2 while recording the statement of dying declaration is not acceptable.

12. As per the prosecution, the incident took place at 2 a.m. on 26.06.1991 and as per her statement, the occurrence of burning was in the evening of 25.06.1991, that is, the previous day. The dying declaration did not carry a certificate by the Executive Magistrate to the effect that it was a voluntary statement made by the deceased and that he had read over the statement to her. The dying declaration was not even attested by the doctor.

As stated earlier, though the Magistrate had stated that the statement had been made in mixed dialect of Hindi and Punjabi and the statement was recorded only in Hindi. Another important aspect is that there was evidence that Kamlesh Rani was under the influence of Fortwin and Pethidine injections and was not supposed to be having normal alertness. In our view, the trial Court rightly rejected the dying declaration altogether shrouded by suspicious circumstances and contrary to the story of prosecution and acquitted the appellant.

13. It is settled that a valid and well reasoned judgment of the trial Court is seldom set aside unless there was some perversity or not based on correct law. From the materials available, absolutely there was no case to presume that the death of the deceased occurred at the hands of the appellant especially, when her statement was shrouded by suspicious circumstances and contrary to the claim of the prosecution. Particularly, when she was alleged to have 97% burns and being under constant sedatives first at Civil Hospital, Naraingarh and then at PGI, Chandigarh, in such a situation she could not be expected to make a statement at a stretch without asking any questions. Admittedly, the Executive Magistrate, PW-2 did not put any question and recorded her answers.

14. Another important aspect relating to failure on the part of prosecution is that on the date of the incident, the deceased had two children aged about six and four years respectively and both of them were present there, admittedly, the I.O. has not enquired them about the genuineness of the incident. Though, there are number of immediate neighbours/co-tenants in the same premises, their statements were not recorded which means that nobody supported the version of the prosecution.

Though there is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration but the court must be satisfied that the dying declaration is true and voluntary and in that event, there is no impediment in basing conviction on it, without corroboration. It is the duty of the court to scrutinise the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. Where a dying declaration is suspicious, it should not be acted upon without corroborative evidence.

Likewise, where the deceased was unconscious and could never make any declaration the evidence with regard to it is rejected. The dying declaration which suffers from infirmity cannot form the basis of conviction. All these principles have been fully adhered to by the trial Court and rightly acquitted the accused and on wrong assumption the High Court interfered with the order of acquittal.

15. It is the consistent stand of the defence from the beginning that the appellant had been falsely implicated, more particularly, at the instance of I.O. Hira Lal (PW-11) who had a previous enmity with him for asking some bribe for running his business of ghee. As rightly pointed out, other witnesses who accompanied the injured Kamlesh Rani did not make any statement involving the appellant in the burning of Kamlesh Rani till 29.06.1991.

16. We are satisfied that the dying declaration was totally in conflict with the version of the prosecution as to the time of her burning, relation of the appellant with the deceased, except for the implication part, which was clarified in favour of the appellant by PW-10 Surinder Singh in his cross-examination. In such circumstances, the dying declaration was totally unacceptable, could not be believed as trustworthy, which was rightly not believed so by the trial Court.

17. Inasmuch as the acquittal by the trial Court and conviction by the High Court is solely based on the dying declaration, in view of our above discussion, there is no need to traverse the evidence and other factual details.

In view of 21the infirmities pointed above, and contradictions as to the occurrence, failure on the part of the Executive Magistrate in obtaining certificate as to whether Kamlesh Rani had made a voluntary statement and not attested by any doctor and also his statement which is contradictory to that of the deceased Kamlesh Rani and of the fact that at the relevant time she was under the influence of Fortwin and Pethidine injections and was not supposed to be having normal alertness, as rightly observed by the trial Court, we hold that the dying declaration Ex.PD does not inspire confidence in the mind of the Court.

Inasmuch as the dying declaration is the only piece of evidence put forward against the accused in the light of our discussion and reasoning, the accused - Surinder Kumar is entitled to the benefit of doubt.

18. Consequently, the conviction and sentence ordered by the High Court is set aside and the order of acquittal passed by the trial Court is restored. Since the appellant is on bail, his bail bonds shall stand discharged. The appeal is allowed.

Kalyan Singh Chouhan Vs C.P. Joshi

Civil Procedure Code, 1908, Order 14 - Rule 1- It is well settled that in the absence of pleading, evidence, if any, produced by the parties cannot be considered. It is also equally settled that no party should be permitted to travel beyond its pleading and that all necessary and material facts should be pleaded by the party in support of the case set up by it. The object and purpose of pleading is to enable the adversary party to know the case it has to meet. It is neither desirable nor required for the court to frame an issue not arising on the pleadings. The Court should not decide a suit on a matter/point on which no issue has been framed.

Supreme Court of India
CIVIL APPEAL NO. 870 OF 2011
(Arising out of SLP (C) NO. 16944 OF 2010)
Hon'ble Judge(s):  P. Sathasivam, B.S. Chauhan
Date of Judgment: January, 24, 2011
Kalyan Singh Chouhan Vs C.P. Joshi
Citation
AIR 2011 SUPREME COURT 1127;

J U D G M E N T

Dr. B. S. CHAUHAN, J.

1.     Leave granted.

2.     This appeal has been preferred against the judgment and order dated 24.5.2010 in S.B. Election Petition No. 1 of 2009 and I.A. No.6839 of 2010 of the High Court of Judicature for Rajasthan at Jodhpur. By the impugned judgment and order the High Court rejected the application dated 11.5.2010 praying for the summoning of certain documents on the ground that it was not permissible to summon the said documents, i.e., those tendered votes in respect of which none of the parties had taken the pleadings nor an issue had been framed in respect of those tendered votes and, thus, it was not permissible to lead any evidence on the fact which is not in issue. More so, on the ground of delay, the application had been filed after framing of the issues.

3.     FACTS :

A.    A Notification under Section 30 of the Representation of People Act, 1951 (hereinafter called as the `Act 1951') dated 10.11.2008 was issued by Election Commission for holding elections to constitute 13thLegislative Assembly for the State of Rajasthan including the election scheduled for Nathdwara Legislative Assembly No. 176 (herein after called as `the constituency'). The appellant as well as the respondent filed their nominations and were candidates of recognised National Parties. The poll was held on 4.12.2008.

B.    During the process of polling, there had been allegations/challenges at various booths that at least 10 votes alleged to have been cast by imposters and thus, 10 tendered votes were cast under Rule 42of the Conduct of Election Rules, 1961 (hereinafter called as the` Rules 1961'). The counting of votes took place on 8.12.2008 and the appellant contesting on the BJP ticket secured 62216 votes, while Shri C.P. Joshi (INC) secured 62215 votes. At the request of the election agent, a recounting took place under Rule 63 of the Rules 1961.However, the result remained the same and, thus, the appellant was declared duly elected by a margin of one vote.

C.    The respondent filed an election petition on 15.1.2009 being S.B. Election Petition No. 1 of 2009 before the High Court of Rajasthan under Sections 80, 81, 100(1)(d)(iii) and Section100(1)(d)(iv) of 1951 Act, inter-alia, alleging that: (i) Smt. Kalpana Kunwar and Smt. Kalpana Singh (wife of Petitioner) were one and the same person, but her name was registered at two places in the electoral rolls of the constituency and hence she had cast two votes in the election; (ii) Six (6) tendered votes cast in the election must be counted and the six (6) votes originally polled against the tendered votes must be rejected.

D.    The appellant filed the written statement contesting the said election petition and the trial is in progress in the High Court. Both the parties have filed several applications before the High Court during the trial of the election petition and the appellant has approached this Court time and again as is evident from the orders dated 16.12.2009 passed in S.L.P(C) No. 33725 of 2009; 1.4.2010 in S.L.P.(C) No. 8212 of 2010; and 23.4.2010 in S.L.P(C) No. 10633 of2010. Appellant filed an application under Order VI Rule 16 read with Section 151 of the Code of Civil Procedure 1908 (hereinafter called as the `CPC') and Section 87 of the Act 1951 for the deletion of paragraph Nos. 13 to 19 of the election petition. The said application was dismissed by the High Court vide order dated 19.11.2009. The appellant preferred S.L.P (C) No. 34688 of 2009 which was dismissed by this Court vide order dated 16.12.2009.

E.    The appellant preferred an application being I.A. No.6839 of2010 dated 11.5.2010 to summon the marked copies of the electoral rolls; register of voters in Form No.17-A; and list of tendered votes in Form No.17-B relating to the polling station nos.68, 124 and 192 of the constituency. However, the said application has been dismissed by the High Court vide impugned judgment and order dated24.5.2010. Hence, this appeal.

4.     Shri Ram Jethmalani, learned senior advocate appearing for the appellant, has submitted that in order to do complete justice, all tendered votes have to be recounted. In view of the fact that there was margin of only one vote, the law requires that all the tendered votes be counted. In order to fortify his submission, Shri Jethmalani placed reliance on the judgment of this Court in Dr. Wilfred D'Souza v.Francis Menino Jesus Ferrao, AIR 1977 SC 286, wherein it had been directed that all the tendered votes would be summoned and taken into consideration, i.e., that all the tendered votes have to be counted. The material issue in all the cases falling under Clause (d) of Section 100 of the Act 1951 remains whether the result of the election has been materially affected and, therefore, once the appellant raised his statutory right to lead evidence, in order to prevent the miscarriage of justice, it is necessary that all the tendered votes be counted. Thus, the impugned order is liable to be set aside.

5.     On the other hand, Shri M.R. Calla, learned senior advocate appearing for the respondent, has vehemently opposed the appeal contending that the principles of equity and concept of substantial justice cannot be pressed into service in the present case. The election petition is to be adjudicated giving strict adherence to the statutory provisions without being influenced by any other concepts. The Court cannot permit a party to lead evidence unless an issue has been framed on the controversy and an issue cannot be framed unless there are actual pleadings in respect thereof. The pleadings in the instant case related only to the 6 tendered votes and an issue has been framed only to that extent. Therefore, it is not permissible to take into consideration all 10 tendered votes. The judgment so heavily relied upon by Shri Ram Jethmalani, learned senior counsel, in Wilfred D'Souza's case (Supra) is quite distinguishable as Recrimination Petition under Section 97 of Act 1951 had been filed in that case. Thus, the ratio of the said judgment has no bearing in the case at hand. The appeal lacks merit and is liable to be dismissed.

6.     We have considered the rival submissions made by learned counsel for the parties and perused the record. The relevant pleadings, taken in the election petition, in this regard, are in paragraph Nos. 13 to 19 of the election petition which cumulatively specifically provide: The names of Smt. Kamla W/o Shri Champa Lal R/o Near Charbhuja Temple, Village Gudla, Tehsil Nathdwara, District Rajasmand appeared at serial number 311 in Part 27; Shri Mana S/o Shri Roda R/o Guda, Village Sema, Tehsil Nathdwara, District Rajsamand, appeared at serial number 1122 in Part 61; Ms. Bargat Banu D/o Shri Gani R/o Talesara Bhawan, Ward No. 19, Nathdwara,District Rajsamand appeared at serial number 146 in Part 73; Shri Dalu S/o Shri Navla R/o Village Soi Ki Bhagai, Post Khamnor, Tehsil Nathdwara, District Rajsamand appeared at serial no. 714 in Part 117;Smt. Nanu W/o Shri Peer Mohammed R/o Neelgar Basti, Village Railmagra, Tehsil Railmagra, District Rajsamand appeared at serial number 866 in Part No. 180; and Shri Shamboo Lal S/o Shri TulsiRam R/o Kalbelia Basti, Village Banerdia, Tehsil Railmagra, District Rajsamand appeared at serial number 502 in Part 199 of the electoral roll of the constituency. When the aforesaid six voters reached the concerned polling station to cast their respective votes, they found that some imposters had already cast their votes by electronic voting machine. They completed the legal formalities by filling up Form 17-B and were allowed to have tendered ballot papers and, thereafter, they cast their votes.

7.     It was further pleaded in paragraph 19 of the election petition that the aforesaid 6 tendered votes have been cast by genuine voters and must be counted. In paragraph 20, it has been submitted that because of the non-counting of the 6 tendered votes, the result of the election stood materially affected on account of improper reception of those votes. Thus, the same was liable to be rejected being not cast by genuine voters but by imposters.

8.     In the written statement, the appellant has raised his doubts in respect of the aforesaid 6 tendered votes but has not taken any specific pleadings in respect of remaining 4 tendered votes. In paragraph 20of the written statement, it has been denied that the result of the election stood materially affected on account of improper reception of those 6 tendered votes. In fact, the pleadings by both the parties in the election petition as well as in the written statement make reference only to 6 tendered votes and not to 10 tendered votes.

9.     In view of the pleadings taken by the parties, the High Court framed only two issues: (i) Whether Smt. Kalpana Kunwar, wife of the respondent, is also known as Kalpana Singh and whether she cast her vote at two Polling Stations Viz. Polling Station No. 39 and Polling Station No. 40 of the Nathdwara Legislative Assembly Constituency No. 176 and if so, what is the effect on the election of the respondent? (ii) Whether the six votes mentioned in Para Nos. 13 to 18 of the election petition were initially improperly received and should be removed from the valid votes and in their place tendered votes should be taken into account? Therefore, it is evident from the pleadings that the case has been limited only to 6 tendered votes and there had been no pleading in respect of the remaining 4 tendered votes either in the election petition or the written statement filed by the appellant.

10.  In Kailash v. Nanhku & Ors., AIR 2005 SC 2441, this Court held that the trial of an election petition is entirely different from the trial of a civil suit, as in a civil suit trial commences on framing the issues while trial of an election petition encompasses all proceedings commencing from the filing of the election petition up to the date of decision. Therefore, the procedure provided for the trial of civil suits under CPC is not applicable in its entirety to the trial of the election petition. For the purpose of the election petition, the word `trial' includes the entire proceedings commencing from the time of filing the election petition till the pronouncement of the judgment. The applicability of the procedure in Election Tribunal is circumscribed by two riders : firstly, the procedure prescribed in CPC is applicable only "as nearly as may be", and secondly, the CPC would give way to any provisions of the Act or any rules made there under. Therefore, the procedure prescribed in CPC applies to election trial with flexibility and only as guidelines.

11.  In Harcharan Singh v. S. Mohinder Singh &Ors., AIR 1968 SC 1500, this Court considered the application of doctrine of equity and substantial justice etc. in election law and came to the conclusion as under :- "The statutory requirements of election law must be strictly observed. An election dispute is a statutory proceeding unknown to the common law; it is not an action at law or in equity. ...... The primary purpose of the diverse provisions of the election law which may appear to be technical is to safeguard the purity of the election process, and the Courts will not ordinarily minimise their operation." (Emphasis added)

12.  Similarly in Jyoti Basu & Ors. v. Debi Ghosal &Ors., AIR 1982 SC 983; this Court held as under :- "A right to elect, fundamental though it is to democracy, is, anomalously enough, neither a fundamental right nor a Common Law Right. It is pure and simple, a statutory right. So is the right to be elected. So is the right to dispute an election. Outside of statute, there is no right to elect, no right to be elected and no right to dispute an election. Statutory creations they are, and therefore, subject to statutory limitation. An election petition is not an action at Common Law, nor in equity. It is a statutory proceeding to which neither the common law nor the principles of equity apply but only those rules which the statute makes and applies. It is a special jurisdiction and a special jurisdiction has always to be exercised in accordance with the statute creating it. Concepts familiar to Common Law and Equity must remain strangers to Election Law unless statutorily embodied. A Court has no right to resort to them on considerations of alleged policy because policy in such matters, as those, relating to the trial of election disputes, is what the statute lays down. In the trial of election disputes, Court is put in a straight jacket. ......We have noticed the necessity to rid ourselves of notions based on Common Law or Equity. We see that we must seek an answer to the question within the four corners of the statute." (Emphasis added)

13.  In Chanda Singh v. Ch. Shiv Ram Varma &Ors., AIR 1975 SC 403, this Court held as under:- "A democracy runs smooth on the wheels of periodic and pure elections. The verdict at the polls announced by the Returning Officers lead to the formation of governments. A certain amount of stability in the electoral process is essential. If the counting of the ballots are interfered with by too frequent and flippant re-counts by courts a new threat to the certainty of the poll system is introduced through the judicial instrument. Moreover, the secrecy of the ballot which is sacrosanct becomes exposed to deleterious prying, if re-count of votes is made easy. The general reaction, if there is judicial relaxation on this issue, may well be a fresh pressure on luckless candidates, particularly when the winning margin is only of a few hundred votes as here, to ask for a re-count Micawberishly looking for numerical good fortune or windfall of chance discovery of illegal rejection or reception of ballots. This may tend to a dangerous disorientation which invades the democratic order by injecting widespread scope for reopening of declared returns, unless the court restricts recourse to re-count to cases of genuine apprehension of miscount or illegality or other compulsions of justice necessitating such a drastic step."

14.  During the trial of an election petition, it is not permissible for the court to permit a party to seek a roving enquiry. The party must plead the material fact and adduce evidence to substantiate the same so that the court may proceed to adjudicate upon that issue. Before the court permits the recounting, the following conditions must be satisfied: (i) The Court must be satisfied that a prima facie case is established; (ii) The material facts and full particulars have been pleaded stating the irregularities in counting of votes; (iii) A roving and fishing inquiry should not be directed by way of an order to recount the votes; 1 (iv) An opportunity should be given to file objection; and (v) Secrecy of the ballot requires to be guarded.(Vide : Dr. Jagjit Singh v. Giani Kartar Singh & Ors., AIR 1966SC 773; Suresh Prasad Yadav v. Jai Prakash Mishra & Ors., AIR1975 SC 376; M. Chinnasamy v. K.C. Palanisamy & Ors., AIR2004 SC 541; Chandrika Prasad Yadav v. State of Bihar & Ors., AIR 2004 SC 2036; Tanaji Ramchandra Nimhan v. Swati Vinayak Nimhan, AIR 2006 SC 1218; Gursewak Singh v. Avtar Singh & Ors., AIR 2006 SC 1791; and Baldev Singh v. Shinder PalSingh & Anr., (2007) 1 SCC 341).

15.  In Gajanan Krishnaji Bapat & Anr. v. Dattaji Raghobaji Meghe & Ors., AIR 1995 SC 2284; this Court held that the court cannot consider any fact which is beyond the pleadings of the parties. The parties have to take proper pleadings and establish by adducing evidence that by a particular irregularity/illegality the result of the election has been materially affected.

16.  Pleadings and particulars are required to enable the court to decide the rights of the parties in the trial. Thus, the pleadings are more to help the court in narrowing the controversy involved and to inform the parties concerned to the question in issue, so that the parties may adduce appropriate evidence on the said issue. It is settled legal proposition that "as a rule relief not founded on the pleadings should not be granted." Therefore, a decision of a case cannot be based on grounds outside the pleadings of the parties. The pleadings and issues are to ascertain the real dispute between the parties to narrow the area of conflict and to see just where the two sides differ. (Vide : Sri Mahant Govind Rao v. Sita Ram Kesho,(1898) 25 Ind. App. 195; M/s. Trojan & Co. v. RM. N.N. Nagappa Chettiar, AIR 1953 SC 235; Raruha Singh v. Achal Singh & Ors.; AIR 1961 SC 1097; Om Prakash Gupta v. Ranbir B. Goyal, AIR2002 SC 665; Ishwar Dutt v. Land Acquisition Collector & Anr. ,AIR 2005 SC 3165; and State of Maharashtra v. Hindustan Construction Company Ltd., (2010) 4 SCC 518.)

17.  This Court in Ram Sarup Gupta (dead) by L.Rs. v. Bishun Narain Inter College & Ors., AIR 1987 SC 1242 held as under: "It is well settled that in the absence of pleading, evidence, if any, produced by the parties cannot be considered. It is also equally settled that no party should be permitted to travel beyond its pleading and that all necessary and material facts should be 1 pleaded by the party in support of the case set up by it. The object and purpose of pleading is to enable the adversary party to know the case it has to meet........ In such a case it is the duty of the court to ascertain the substance of the pleadings to determine the question."

18.  This Court in Bachhaj Nahar v. Nilima Mandal & Ors. , AIR2009 SC 1103, held as under: "The object and purpose of pleadings and issues is to ensure that the litigants come to trial with all issues clearly defined and to prevent cases being expanded or grounds being shifted during trial. Its object is also to ensure that each side is fully alive to the questions that are likely to be raised or considered so that they may have an opportunity of placing the relevant evidence appropriate to the issues before the court for its consideration. The object of issues is to identify from the pleadings the questions or points required to be decided by the courts so as to enable parties to let in evidence thereon. When the facts necessary to make out a particular claim, or to seek a particular relief, are not found in the plaint, the court cannot focus the attention of the parties, or its own attention on that claim or relief, by framing an appropriate issue........ Thus it is said that no amount of evidence, on a plea that is not put forward in the pleadings, can be looked into to grant any relief. The jurisdiction to grant relief in a civil suit necessarily depends on the pleadings, prayer, court fee paid, evidence let in, etc."

19.  In J.K. Iron & Steel Co. Ltd, Kanpur v. The Iron and Steel Mazdoor Union, Kanpur, AIR 1956 SC 231, this Court observed: "It is not open to the Tribunals to fly off at a tangent and, disregarding the pleadings, to reach any conclusions that they think are just and proper."

20.  Order XIV Rule 1 CPC reads: "Issues arise when a material proposition of fact or law is affirmed by the party and denied by the other." Therefore, it is neither desirable nor required for the court to frame an issue not arising on the pleadings. The Court should not decide a suit on a matter/point on which no issue has been framed.(Vide: Raja Bommadevara Venkata Narasimha Naidu & Anr. v.Raja Bommadevara Bhashya Karlu Naidu & Ors., (1902) 29 Ind. App. 76 (PC); Sita Ram v. Radha Bai & Ors., AIR 1968 SC 535;Gappulal v. Thakurji Shriji Dwarkadheeshji & Anr., AIR 1969SC 1291; and Biswanath Agarwalla v. Sabitri Bera, (2009) 15 SCC693).

21.  The object of framing issues is to ascertain/shorten the area of dispute and pinpoint the points required to be determined by the court. The issues are framed so that no party at the trial is taken by surprise. It is the issues fixed and not the pleadings that guide the parties in the matter of adducing evidence. [Vide : Sayad Muhammad. v. Fatteh Muhammad (1894-95) 22 Ind. App. 4(PC).]

22.  In Kashi Nath (Dead) through L.Rs. v. Jaganath, (2003) 8SCC 740, this Court held that where the evidence is not in line withthe pleadings and is at variance with it, the said evidence cannot be looked into or relied upon. While deciding the said case, this Court placed a very heavy reliance on the judgment of the Privy Council inSiddik Mohd. Shah v. Saran, AIR 1930 PC 7.

23.  There may be an exceptional case wherein the parties proceedto trial fully knowing the rival case and lead all the evidence not only in support of their contentions but in refutation thereof by the other side. In such an eventuality, absence of an issue would not be fataland it would not be permissible for a party to submit that there has been a mis-trial and the proceedings stood vitiated. (vide: Nagubai Ammal & Ors. v. B. Shama Rao & Ors., AIR 1956 SC 593;Nedunuri Kameswaramma v. Sampati Subba Rao, AIR 1963 SC

24.  884; Kunju Kesavan v. M.M. Philip & Ors., AIR 1964 SC 164;Kali Prasad Agarwalla (dead) by L.Rs. & Ors. v. M/s. BharatCoking Coal Ltd. & Ors., AIR 1989 SC 1530; Sayed Akhtar v.Abdul Ahad, (2003) (7) SCC 52; and Bhuwan Singh v. OrientalInsurance Co. Ltd., AIR 2009 SC 2177).

25.  Therefore, in view of the above, it is evident that the party to the election petition must plead the material fact and substantiate its averment by adducing sufficient evidence. The court cannot travel beyond the pleadings and the issue cannot be framed unless there are pleadings to raise the controversy on a particular fact or law. It is, therefore, not permissible for the court to allow the party to lead evidence which is not in the line of the pleadings. Even if the evidence is led that is just to be ignored as the same cannot be taken into consideration.

26.  In Jabar Singh v. Genda Lal, AIR 1964 SC 1200, a Constitution Bench of this court while dealing with a similar issue observed as under: "It would be convenient if we take a simple case of an election petition whether the petitioner makes only one claim and that is that the election 1 of the returned candidate is void. This claim can be made under Section 100. Section 100(1)(a),(b) and (c) refer to three distinct grounds on which the election of the returned candidate can be challenged. We are not concerned with any of these grounds.

In dealing with the challenge to the validity of the election of the returned candidate under Section 100(1)(d), it would be noticed that what the election petitioner has to prove is not only the existence of one or the other of the grounds specified in clauses (i) to (iv) of Section 100(1)(d), but it has also to establish that as a result of the existence of the said ground the result of the election insofar as it concerns a returned candidate has been materially affected. It is thus obvious that what the Tribunal has to find is whether or not the election insofar as it concerns the returned candidate has been materially affected, and that means that the only point which the Tribunal has to decide is has the election of the returned candidate been materially affected? And no other enquiry is legitimate or permissible in such a case.

This requirement of Section 100(1)(d) necessarily imports limitations on the scope of the enquiry. Confining ourselves to clause (iii) of Section 100(1)(d), what the Tribunal has to consider is whether there has been an improper reception of votes in favour of the returned candidate. It may also enquire whether there has been a refusal or rejection of any vote in regard to any other candidate or whether there has been a reception of any vote which is void and this can only be the reception of a void vote in favour of the returned candidate. In other words, the scope of the enquiry in a case falling under Section l00(1)(d)(iii) is to determine whether any votes have been improperly cast in favour of the returned candidate, or any votes have been improperly refused or rejected in regard to any 1 other candidate. These are the only two matters which would be relevant in deciding whether the election of the returned candidate has been materially affected or not. At this enquiry, the onus is on the petitioner to show that by reason of the infirmities specified in Section 100(1)(d)(iii), the result of the returned candidate's election has been materially affected, and that, incidentally, helps to determine the scope of the enquiry.

Therefore, it seems to us that in the case of a petition where the only claim made is that the election of the returned candidate is void, the scope of the enquiry is clearly limited by the requirement of Section 100(l)(d) itself. The enquiry is limited not because the returned candidate has not recriminated under Section 97(1); in fact, Section 97(1) has no application to the case falling under Section 100(1)(d)(iii); the scope of the enquiry is limited for the simple reason that what the clause requires to be considered is whether the election of the returned candidate has been materially affected and nothing else. If the result of the enquiry is in favour of the petitioner who challenges the election of the returned candidate, the Tribunal has to make a declaration to that effect, and that declaration brings to an end the proceedings in the election petition." (Emphasis added)

27.  In T.A. Ahammed Kabeer v. A.A. Azeez & Ors., AIR 2003SC 2271, this Court dealt with the judgment of the Constitution Benchobserving: "We have already stated that the rigorous rule propounded by the Constitution Bench in Jabar Singh v. Genda Lal, AIR 1964 SC 1200, has met 2 with criticism in some of the subsequent decisions of this Court though by Benches of lesser coram and an attempt at seeking reconsideration of the majority opinion in Jabar Singh case (supra) has so far proved to be abortive. The view of the law taken by the Constitution Bench in Jabar Singh (supra) is binding on us. Analysing the majority opinion in Jabar Singh case (supra) and the view taken in several decisions of this Court, referred to hereinabove, we sum up the law as under: (1) In an election petition wherein the limited relief sought for is the declaration that the election of the returned candidate is void on the ground under Section 100(1)(d)(iii) of the Act, the scope of enquiry shall remain confined to two questions: (a) finding out any votes having been improperly cast in favour of the returned candidate, and (b) any votes having been improperly refused or rejected in regard to any other candidate.

In such a case an enquiry cannot be held into and the election petition decided on the finding (a) that any votes have been improperly cast in favour of a candidate other than the returned candidate, or (b) any votes were improperly refused or rejected in regard to the returned candidate. (2) A recrimination by the returned candidate or any other party can be filed under Section 97(1) in a case where in an election petition an additional declaration is claimed that any candidate other than the returned candidate has been duly elected. (3) For the purpose of enabling an enquiry that any votes have been improperly cast in favour of any candidate other than the returned candidate or any votes have been improperly refused or rejected in regard to the returned candidate the Election Court shall acquire jurisdiction to do so only on two conditions being satisfied: (i) the election petition seeks a declaration that any 2 candidate other than the returned candidate has been duly elected over and above the declaration that the election of the returned candidate is void; and (ii) a recrimination petition under Section 97(1) is filed. (4) A recrimination petition must satisfy the same requirements as that of an election petition in the matter of pleadings, signing and verification as an election petition is required to fulfill within the meaning of Section 83 of the Act and must be accompanied by the security or the further security referred to in Sections 117 and 118 of the Act. (5) The bar on enquiry enacted by Section 97 read with Section 100(1)(d)(iii) of the Act is attracted when the validity of the votes is to be gone into and adjudged or in other words the question of improper reception, refusal or rejection of any vote or reception of any vote which is void is to be gone into.

The bar is not attracted to a case where it is merely a question of correct counting of the votes without entering into adjudication as to propriety, impropriety or validity of acceptance, rejection or reception of any vote. In other words, where on a re-count the Election Judge finds the result of re-count to be different from the one arrived at by the Returning Officer or when the Election Judge finds that there was an error of counting the bar is not attracted because the court in a pure and simple counting carried out by it or under its directions is not adjudicating upon any issue as to improper reception, refusal or rejection of any vote or the reception of any vote which is void but is performing mechanical process of counting or re- counting by placing the vote at the place where it ought to have been placed. A case of error in counting would fall within the purview of sub- clause (iv), and not sub-clause (iii) of clause (d) of sub-section (1) of Section 100 of the Act."

28.  Therefore, in the case at hand, the election petitioner/respondent has claimed only that there has been irregularity/illegality in counting of 6 tendered votes and the case squarely falls within the ambit of Section 100(1)(d)(iii) of the Act,1951. Election petitioner has further pleaded that the result of the election stood materially affected because of improper receiving the six tendered votes and in absence of any Recrimination Petition in the case the appellant cannot be permitted to lead evidence on the fact which is not in issue.

29.  The judgment in Wilfred D'Souza's case (Supra) has distinguishable features. In that case, the appellant had asserted that the result of the election of the respondent had been materially affected by the improper reception, refusal and rejection of votes and a specific prayer had been made by the appellant in the election petition that the election of the respondent be declared void and the appellant be declared to be duly elected. The respondent had denied that the tendered votes were cast by genuine voters.

The issue had been framed in that case as under: "Whether the petitioner proves that the vote or votes were initially improperly received and should be removed and in their place tendered vote or votes should be taken into account." The Election Tribunal therein did not record any evidence on behalf of the respondents and proceeded to decide the case after the evidence of the witnesses of the appellant had been recorded and after the box containing the relevant papers had been opened and those papers were examined. In view of the fact that the appellant had adduced prima facie proof in respect of two of the tendered ballot papers, the Election Tribunal was to call upon the respondent to adduce his evidence and the evidence should not be constrained only to the two tendered ballot papers in respect of which the appellant had not adduced any evidence, but would relate to some or all the other tendered ballot papers in respect of which the appellant had not adduced any evidence.

That was, admittedly, a case wherein a Recrimination Petition under Section 97 of the Act 1951 had been filed. In the instant case, there is no such claim made by the parties. In the instant case, an application had been filed to summon the other 4 tendered votes, also making a submission that those documents were required by the parties to resolve the controversy without giving any reason or justification for the same. Admittedly, there is no reference to these 4tendered votes either in the election petition or in the written statement. The said 4 tendered votes neither had been relied upon in the reply by the appellant nor had been entered in the list of documents. Thus, the judgment in this case is quite distinguishable from the case at hand.

30.  In view of the above, we do not find any cogent reason to interfere with the well reasoned judgment and order of the High Court impugned herein. The facts and circumstances of the case do not warrant review of the order passed by the High Court. The appeal lacks merit and is accordingly dismissed.

Thursday, October 27, 2011

Veer Prakash Sharma vs Anil Kumar Agarwal & Anr

Penal Code, 1860, Sections 405, 406 and 420 - Quashing of order - Taking cognizance of offence - Cheating - Criminal breach of trust - Dishonour of two cheques - Instead of filing complaint u/s 138 Negotiable instruments Act, complaint filed for cheating and criminal breach of trust - Non payment or under payment of price of goods by itself does not amount to commission of an offence of cheating or criminal breach of trust - Neither any allegation made to show existence of the ingredients of the criminal breach of trust nor any statement made in that behalf - No act of inducement on the part of appellant alleged nor any allegation made that he had an intention to cheat the respondent from the very inception for the offence of cheating - Order taking cognizance quashed. .

Supreme Court of India
Criminal Appeal No.980 of 2007
Hon'ble Judge(s):  S Sinha, H S Bedi
Date of Judgment: August 1, 2007 
Veer Prakash Sharma vs Anil Kumar Agarwal & Anr  
Citation
(2007) 3 SCC (Cri) 370:  2007(8) SCR 746 , 2007(7) SCC 373 , 2007(9) SCALE 502 , 2007(10) JT 57 

J U D G M E N T
[Arising out of SLP (Crl.) No. 2272 of 2006] S.B. SINHA, J:

1. Leave granted.

2. The parties hereto entered into a contract for sale and purchase of welding rods. Appellant allegedly did not pay some amount due from him towards supply of the said article. He issued two cheques for a sum of Rs. 3,559/- and Rs. 3,776/- in the year 1983. The said cheques were dishonoured. Alleging that by reason of such act, the appellant has committed offences under Sections 406, 409, 402 and 417 of the Indian Penal Code, a complaint petition was filed by the First Respondent in the Court of Special Judicial Magistrate, Rampur which was marked CC No. 132 of 1986. The principal allegation made therein against the appellant reads as under:

That applicant, regarding these cheques and payment of money, wrote several times to accused and also sent his representative. But he kept on making excuses in making payment. At last he told on 19.12.1985 that he had issued fabricated cheques knowingly with an intention to cheat him and grab his money. He would not pay his money, he is free to take any action, whatever he likes.

3. In his statement under Section 200 of the Code of Criminal Procedure, Respondent No. 1 alleged:

...Both the Cheques were, thus, dishonoured. I also wrote to accused regarding dishonour of Cheques, even I, myself, visited him and also sent to my Representative, but the accused kept on making excuses for making the payment. At last, on 19.12.1985, he told that he had knowingly issued these false and fabricated Cheques only to deceive and grab his money. He further told that he shall never pay back his money. You can do whatever you like. I went to lodge the Report, but Thana Officials did not note down the Report.

4. One of the witnesses Shri Rajendra Kumar Saxena in his statement alleged:

I was working as Supervisor in Hira Electronics during 1983. Accused Vir Prakash has purchased Electric Rods from the company worth Rs. 3599.33 P and Rs. 3776.73 P. Money was paid later on through Bank Cheques both cheques were dishonored by Bank. When accused was later on asked for the payment of the amount taken accused refused to pay and said that he had knowingly issued the fabricated cheques to deceive and grab the money. You can do what you like.

5. Another witness A. Khalik also made similar statements which were recorded in the following terms:

Stated on oath that I was an employee of Hira Electronics since 1983. Accused Vir Prakash has purchased articles worth Rs. 3599.33 P and Rs. 3776.73 P. in 1983 for which payment was made through Bank. Both cheques issued by the accused were dishonored. On when reminder for payment is made to the accused then he said that I have knowingly issued the fabricated cheques to cheat him and grab his money. I will not pay.

6. Cognizance was taken against the appellant. He was summoned. An application was filed by him on 25.08.1987 for quashing of the said criminal proceeding before the High Court. A learned Single Judge of the Allahabad High Court by reason of the impugned order dated 3.01.2006 while refusing to exercise his jurisdiction stated:

As the allegations against the applicant are factual in nature, that cannot be adjudicated in the present application, there is no ground for quashing criminal proceedings. Stay order, if any, stands vacated. The trial court is directed to conclude the trial expeditiously.

7. The principle underlying exercise of jurisdiction by the High Court under Section 482 of the Code of Criminal Procedure is now well-settled viz. that the allegations contained in the complaint petition even if given face value and taken to be correct in its entirety do not disclose an offence or not is the question.

8. The dispute between the parties herein is essentially a civil dispute.

Non-payment or under-payment of the price of the goods by itself does not amount to commission of an offence of cheating or criminal breach of trust.

No offence, having regard to the definition of criminal breach of trust contained in Section 405 of the Indian Penal Code can be said to have been made out in the instant case.

Section 405 of the Indian Penal Code reads, thus:

Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or wilfully suffers any other person so to do, commits "criminal breach of trust". Neither any allegation has been made to show existence of the ingredients of the aforementioned provision nor any statement in that behalf has been made.

Ordinarily, bouncing of a cheque constitutes an offence under Section 138 of the Negotiable Instruments Act. No complaint thereunder had been taken.

9. We are, therefore, left only with the question as to whether in a situation of this nature any offence of cheating can be said to have been made out.

Section 415 of the Indian Penal Code defines cheating to mean:

Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to "cheat".

In Hridaya Ranjan Prasad Verma and Others v. State of Bihar and Another [(2000) 4 SCC 168], this Court held:

14. On a reading of the section it is manifest that in the definition there are set forth two separate classes of acts which the person deceived may be induced to do. In the first place he may be induced fraudulently or dishonestly to deliver any property to any person. The second class of acts set forth in the section is the doing or omitting to do anything which the person deceived would not do or omit to do if he were not so deceived. In the first class of cases the inducing must be fradulent or dishonest.

In the second class of acts, the inducing must be intentional but not fraudulent or dishonest.

15. In determining the question it has to be kept in mind that the distinction between mere breach of contract and the offence of cheating is a fine one.

It depends upon the intention of the accused at the time to inducement which may be judged by his subsequent conduct but for this subsequent conduct is not the sole test. Mere breach of contract cannot give rise to criminal prosecution for cheating unless fraudulent or dishonest intention is shown right at the beginning of the transaction, that is the time when the offence is said to have been committed. Therefore it is the intention which is the gist of the offence. To hold a person guilty of cheating it is necessary to show that he had fraudulent or dishonest intention at the time of making the promise. From his mere failure to keep up promise subsequently such a culpable intention right at the beginning, that is, when he made the promise cannot be presumed. [See also Indian Oil Corpn. v. NEPC India Ltd. and Others (2006) 6 SCC 736] The ingredients of Section 420 of the Indian Penal Code are as follows :

i) Deception of any persons;

ii) Fraudulently or dishonestly inducing any person to deliver any property; or iii) to consent that any person shall retain any property and finally intentionally inducing that person to do or omit to do anything which he would not do or omit.

No act of inducement on the part of the appellant has been alleged by the respondent. No allegation has been made that he had an intention to cheat the respondent from the very inception.

What has been alleged in the complaint petition as also the statement of the complainant and his witnesses relate to his subsequent conduct. The date when such statements were allegedly made by the appellant had not been disclosed by the witnesses of the complaints. It is really absurd to opine that any such statement would be made by the appellant before all of them at the same time and that too in his own district. They, thus, appear to be wholly unnatural.

In law, only because he had issued cheques which were dishonoured, the same by itself would not mean that he had cheated the complainant.

Assuming that such a statement had been made, the same, in our opinion, does not exhibit that there had been any intention on the part of the appellant herein to commit an offence under Section 417 of the Indian Penal Code.

10. Furthermore, admittedly, their residences are in different districts.

Whereas the appellant is a resident of the district of Ajamgarh, the respondent is a resident of the district of Rampur. Cheques were admittedly issued by the appellant at his place. There is nothing on record to show that any part of the cause of action arose within the jurisdiction of the court concerned. Even if such statements had been made, the same admittedly have been made only at the place where the appellant resides. The learned Magistrate, therefore, had no jurisdiction to issue the summons. [See Mosaraf Hossain Khan v. Bhagheeratha Engg. Ltd. and Others, (2006) 3 SCC 658] 11. For the reasons aforementioned, the impugned judgment is set aside.

The order taking cognizance is quashed. The appeal is allowed. In the facts and circumstances of the case, no offence is made out.