evolawyer/inlegalbert-sc-ner-silver huggingface dataset:
[2009] 4 S. C.R. 287

SANTOSH A V.

STATE OF U.P.

Criminal Appeal No. 470 of 2009

MARCH 16, 2009

[DR. ARIJIT PASAYAT AND ASOK KUMAR GANGULY,

JJ.)

-( Code of Civil Procedure, 1908 - 0. 9 - Revision petition ......

- Dismissal of - By ex-parte order - Recalling of order - Denied on the ground that revision was decided on merits - c

On appeal, held: In view of the fact that various reasons are indicated for non-appearance, matter remitted to High Court, - .... for consideration afresh, on merits .

CRIMINALAPPELLATEJURISDICTION: CriminalAppeal D No. 470 of 2009

From the Judgement and Order dated 27.04.2004 of the High Court of Judicature at Allahabad in Criminal Revision No. 1622 of 1989.

R.D. Upadhyay, S.B. Pandey, fortheAppellant.

S.G. Hasnain, S.A. Abde, Anil Kumar, for the Respondent. ..

~ The Judgement of the Court was delivered by

DR. ARIJIT PASAYAT, J.

1. Leave granted.

2. Challenge in this appeal is to the order passed by a learned Single Judge of the Allahabad High Court dismissing the Revision Petitions filed by the appellant. Two revisions G petitions were filed and one of them i.e. Criminal Revision No.1622 of 1989 was by the appellant. The matter was taken up ex-parte and the revision petition was dismissed after referring to various aspects. An application for recall was filed

287 H

SUPREME COURT REPORTS

[2009] 4 S.C.R

A which was dismissed on the ground that the order which was sought to be recalled was passed on merits and therefore cannot be recalled.

3. Though many points were urged in support of the application it is not necessary to go into those in detail. While 8 issuing notice on 7 .11 .2008 it was indicated that the matter may be remitted to the High Court for fresh hearing as the revision petition was dismissed in the absence of learned counsel for the appellant. During the hearing of the application learned counsel for the appellant indicated various reasons for which C there was non appearance on the day the matter was taken up.

That being so, it would be appropriate to set aside the impugned order and remit the matter to the High Court for a fresh consideration on merits. To avoid unnecessary delay let the parties appear before the High Court on 24.3.2009 so that a D date of hearing can be fixed. The Hon'ble Chief Justice of the High Court is requested to post the matter before an appropriate Bench.

4. The appeal is allowed.

K.K.T.

Appeal allowed.

• -
[2009] 4 S.C.R. 387

MIS V.G. SARAF AND SONS A V.

H. RANJITH AND ANR.

Criminal Appeal No. 468 of 2009

MARCH 16, 2009 B

[DR. ARIJIT PASAYAT AND ASOK KUMAR GANGULY,

JJ.] • Negotiable Instruments Act, 1881:

s. 138 - Conviction under s. 138 set aside by High Court c on ground that amount shown in the bill was lesser than the cheque amount - Challenged by complainant - Documents produced by complainant to substantiate contention that cheque was issued to discharge the liability which included

~ cash discount and sales tax - Held: High Court did not D ; examine the matter in proper perspective - Probative value of documents produced and acceptability of evidence of complainant was not examined - Matter remitted to High Court for fresh disposal.

CRIMINALAPPELLATE JURl~DICTION : Criminal Appeal E No. 468 of 2009

From the Judgement and Order dated 12.07.2007 of the High Court of Kerala C.R.P. No. 1740 of 2002(C)

Romy Chacko, for the Appellant.

P.V. Dinesh, T.T.K. Deepak, M/S. T.T.K. Deepak & Co., for the Respondent.

The Judgement of the Court was delivered by - -1

DR. ARIJIT PASAYAT, J.

1. Leave granted.

2. Challenge in this appeal is to the order passed by a

387 H

SUPREME COURT REPORTS

[2009] 4 S.C.R

A learned Single Judge of the Kerala High Court allowing the Revision Petition filed by the respondent No.1 questioning his conviction for offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (in short the 'Act'). The High Court held that the conviction entered and the sentence imposed

B by the Courts below were not sustainable and accordingly

allowed the revision petition.

3. The primary stand of the appellants in this appeal is that t the High Court erred in acquitting the accused on the ground .. that Ex. P6, Bill represents only for Rs.1,61,000/- and that the c Ex.P1 cheque was for a sum of Rs.1,86,606.95. It is pointed out that the evidence of PW-1 the complainant was to the effect that accused was liable to pay a sum of Rs.1,81,256.75 and the cash discount and sales tax. It is the case of the appellants that the High Court misread the evidence of PW-1 to set aside

D the concurrent findings recorded by the courts below. f ..

4. Learned counsel for the respondent No.1 on the other hand supported the judgment of the High Court.

5. It is noticed that the evidence of PW-1 was to the effect

E that the accused was liable to pay Rs.1,81,256. 75 and the cash discount and the sales tax. It is also seen that the appellants had produced the relevant documents to substantiate the contention that the cheque in question was issued to discharge the liability. The documents produced included the invoices,

ledger and bills.

6. It is noticed that the High Court has not examined the matter in proper perspective. The probative value of the documents produced and the acceptability of the evidence of PW-1 has not been examined. That being so, we set aside the

G impugned order of the High Court and remit the matter to it to l- - . consider the matter afresh taking into account the various aspects highlighted above.

7. The appeal is allowed.

D.G.

Appeal allowed.
(2009) 1 S.C.R. 331 ·"

KALIBEN RABARI A '

STATE OF GUJARAT & ORS. (Criminal Appeal No. 571 of 2009)

MARCH 27, 2009 B

[DR. ARIJIT PASAYAT AND ASOK KUMAR

GANGUL Y, JJ.]

Penal Code, 1860 - s. 304 (Part I) and (Part II) - Order of High Court altering conviction from s. 304 (Part I) to s. 304 c (Part II) and sentence from ten years to two and half years - Also reduction of compensation from Rs. 5 lakhs to Rs. 3 lakhs - Challenge to - Held: When custodial sentence was substantially reduced, there was no basis for reducing compensation as awarded from Rs. 5 /akhs to Rs. 3 /akhs - D Also reasons were not indicated to justify reduction - Thus, quantum of compensation enhanced to Rs. 5 lakhs - Code of Criminal Procedure, 1973 - s. 357.

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal E -~ No. 571 of 2009.

From the Judgment & Order dated 13.03.2007 of the High Court of Gujarat at Ahmedabad in Criminal Appeal No.1290/ 2005.

~ F Shanker Divate for the Appellant.

Hemantika Wahi, K. Enatoli Serna, Meenakshi Arora, S.

Gupta, Mohit 0. Ram and P. Kataki, for the Respondents.

The Judgment of the Court was delivered by G

DR. ARIJIT PASAYAT, J. 1. Leave granted.

2. The only question of importance which is raised by the

331 H

SUPREME COURT REPORTS

[2009] 5 S.C.R.

A learned counsel for the appellant is that the High Court while

reducing the sentence from 10 years to two and half years in respect of offence punishable under Sec. 304 Part I to 304 Part II of the Indian Penal Code, 1860 (in short the IPC) also reduced compensation from Rs.5 lakhs to Rs. 3 lakhs. Learned B counsel for the appellant submitted that there was no basis for such reduction after the custodial period was substantially reduced. The High Court in fact refused to extend the benefits of the Probation of Offenders Act 1958 (in short the Probation Act) to the accused persons. By applying the parameters of c Sec.357 of the Code of Criminal Procedure, 1973,(in short the 'Code'), the trial Court had fixed the quantum of compensation of Rs.5 lakhs. Learned counsel for the accused respondent supported the judgment of the High Court.

3. We find that in a case of this nature where the High Court D has altered conviction from Section 304 Part I to 304 Part II IPC

and has considerably reduced the period of custodial sentence, there was no basis for reducing the compensation as awarded, i.e. Rs. 5 lakhs to Rs. 3 lakhs. No reason has been indicated to justify the reduction. Accordingly, we enhance the quantum E of compensation to Rs. 5 lakhs. The balance of amount, if any, required to be deposited shall be so done within a period of four weeks from today.

4. The appeal is disposed of.

F N.J.

Appeal disposed of.
~·-

[2009] 7 S. C.R. 305

M/s. ARUL & CO.

STATE OF TAMIL NADU & ANR.

Criminal Appeal No. 4617 of 2002

APRIL 21, 2009

[DR. ARIJIT PASAYAT AND LOKESHWAR SINGH

PANTA, JJ.]

Tamil Nadu General Sales Tax Act, 1959 :

Sales Tax-Imposition of -Penalty also levied - For reasons stated in the connected appeal, no scope for C interference withe the levy of tax made - However, penalty imposed is set aside.

CIVILAPPELLATE JURISDICTION: Civil Appeal No. 4617 of 2004

From the Judgement and Order dated 29.01.2004 of the D High Court of Judicature at M'adras in Writ Petition No. 43203 of 2002

K.K. Mani, Mayur R. Shah, for the Appellants.

R. Nedumaran, for the Respondents.

E The Judgement of the Court was delivered by

DR. ARIJIT PASAYAT, J.

1. Challenge in this appeal is to the judgment of a Division Bench of the Madras High Court dismissing the writ petition filed by the appellant. The High Court relied on the decision of a F Division Bench of the High Court against the assessee in writ petition No. 14768 of 2000 dated 11.12.2003. For reasons indicated in Civil appeal No. 5134-35 of2002 disposed of today, we find there is no scope for interference with the levy of tax made. However, the' penalty imposed stands set aside because G of what is stated in the said appeals.

2. The appeal is accordingly disposed of.

G.N.

Appeal disposed of. 305
[2009] 7 S.C.R. 310

DINA NATH @ DAULAT

STATE OF HIMACHAL PRADESH

Criminal Appeal No. 16 of 2008

APRIL 23, 2009

[DR. ARIJIT PASAYAT AND ASOK KUMAR

GANGULY, JJ.]

Juvenile Justice (Care and Protection of Children) Act, 2000 - Juvenile - Determination of - Plea by appellant that he was minor at the time of commission of offence - Held: Certain documents have been filed to substantiate the plea, but the applicability of the amended provision is to be considered - On facts, matter remitted to trial court for adjudication of the plea.

CRIMINALAPPELLATE JURISDICTION: Criminal Appeal No.16 of 2008

From the Judgement and Order dated 06.11.2007 of the Hon'ble High Court of Himachal Pradesh at Shimla in Criminal Appeal No. 89 of 1993

S.K. Bansal, Savitri Bansal, Roopak Bansal, Dbasis Misra, for the Appellant.

Naresh K. Sharma, for the Respondent.

The Judgement of the Court was deii\lered by

DR. ARIJIT PASAYAT, J.

The only point urged in support of the appeal is that the appellant was minor within the meaning of the Juvenile Justice G (Care and Protection of Children) Act, 2000 (in short "2000Act").

Reference is also made to the amendment of the expression "juvenile in conflict with law" in terms of Section 2(1) as amended by Act 33 of 2006 with effect from 22.8.2006. Reference is also

"'!

DINA NATH@ DAULAT V. 311

STATE OF HIMACHAL PRADESH [DR. ARIJIT PASAYAT, J.)

made to the explanation appended to Section 20 by the said A amendment. It is the stand of the appellant that on the date of occurrence he wa!:; minor as his date of birth is 6.3.1973.

Learned counsel for the respondent states that this plea was not raised either before the trial court or before the High Court by the appellant. The question about the applicability of B 2000 Act and the amendment thereto has to be tested on the b.asis of the evidence. Though certain documents have been filed to substantiate their stand that the appellant was a minor on the date of occurrence i.e. on 15.6.1990, the applicability of the amended provisions have to be considered. In the peculiar C facts of this case, we set aside the impugned judgment of the High Court and remit the matter to the trial court to decide only the question as to whether the appellant was a juvenile on the date of commission of the offence i.e. on 15.6.1990. We make it clear that we have not expressed any opinion on the merits of D the case. The trial court shall permit the accused appellant to produce $UCh evidence as is considered necessary by him to substantiate the aforesaid plea. Similar shall be the case in case of prosecution.

As the matter is pending since long, let the adjudication E be done by the end of September, 2009. The accusedappellant shall continue to remain in custody till the adjudication is done by the triai court.

We make it clear that the impugned judgment is being set F aside only for the purpose of adjudicating the plea raised by the appellant that he was minor at the time of commission of the offence.

The appeal stands disposed of accordingly.

Appeal disposed of.
[2009] 7 S.C.R. 84

RAJA RAM KASHYAP & ORS.

STATE OF U.P. & ANR.

Criminal Appeal No. 864 of 2009

APRIL 24, 2009

[DR. ARIJIT PASAYAT AND ASOK KUMAR

GANGULY, JJ.]

Code of Criminal Procedure, 1973 - s. 320 (2) - Compounding of offence punishable under Penal Code - C Permissibility of - Settlement of disputes between parties and parties intending to compound offence u!ss. 406 and 420 /PC - Held: Under s. 320(2) offence specified could be compounded by victim with the permission of the court before which prosecution for such offence is pending - Parties given D liberty to file application u/s 320 and the concerned court would deal with the matter.

CRIMINALAPPELLATE JURISDICTION: Criminal Appeal No. 864 of 2009

E From the Judgement and Order dated 18.03.2008 of the Hon'ble High Court of Judicature at Ahmedabad in Criminal Misc. Application No. 4714 of 2008.

Dinesh Kumar Garg, for the Appellant.

F Ratnakar Dash, S. Akbar Abbas, Abdi, Anuvrat Sharma, R.C. Kaushik, with him for the Respondent.

The Judgement of the Court was delivered by

DR. ARIJIT PASAYAT, J.

G Leave granted.

The only question raised is that since the parties have settled their dispute and want to compound the offence i.e Sections 406 and 420 of the Indian Penal Code, 1860 (in short

H 84

RAJA RAM KASHYAP & ORS. V. STATE OF U.P. & ANR 85

[DR. ARIJIT PASAYAT, J.)

.. the 'Act'), the court should have permit it to be in terms of sub- A section (2) of Section 320 of the Code of Criminal Procedure, 1973 (in short 'Code'). The offences indicated in the table are compoundable and it is indicated as to who is the person by whom the offence may be compounded.

Sub-section 320 of the Code so far as relevant reads as B

follows:

The offence punishable under the sections of the Indian Penal Code (45 of 1860) specified with the permission of the Court before which any prosecution for such offence is pending, c be compounded by the persons mentioned.

Offence Section Person by whom

... offencee may be J comgounded " ':' Criminal breach of trust, 406 The person to whom D

where the value of the hurt is caused property does not exceed {Two hundred rupees)

Cheating and dishonestly 420 The owner of the E inducing delivery of property. property or the making, alteration or destruction of a valuable security

If the parties file necessary application for compounding F

in terms of the Section 320 of the Code, the concerned court will deal with the matter appropriately. The interim order passed by this court shall continue for a period of three months so that necessary steps can be taken.

The appeal is disposed of accordingly .

N.J.

Appeal disposed of.
[2009] 6 S.C.R. 10

STATE OF KERALA v.

SURESH @ SUBHASH & ORS. (Criminal Appeal No. 1207 of 2004)

APRIL 1, 2009

[DR. ARIJIT PASAYAT, D.K JAIN AND DR.

MUKUNDAKAM SHARMA, JJ.] •

Penal Code, 1860ss. 143, 147, 148, 109, 449 and 302 c r/w s. 149 - Prosecution - Acquittal by courts below on the grounds of unexplained delay relating to FIR reaching the Magistrate and doubt regarding authenticity of the report given by PW 1 - On appeal, held : Order of acquittal was passed after proper and detailed analysis of the evidence to find that D prosecution version was not cogent and credible - Order of acquittal confirmed. •

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 1207 of 2004.

E From the Judgement & Order dated 20.01.2004 of the High Court of Kerala at Ernakulam in Crl. A. No. 55912002. B.

M.T. George, for the Appellant.

"' F Nishe Rajen Shonker, Vinod P.V., K.P. Sajith, Jayanth Muthuraj and Sajith P. Warrier for the Respondents.

The Judgment of the Court was delivered by

DR. ARIJIT PASAYAT, J. 1. Heard learned counsel for the G parties. ..

2. The Kerala High Court by the impugned order dismissed the appeal filed by the State questioning acquittal of five accused persons who faced trial in the Court of Additional

H Sessions Judge, Pathanamthitta. The trial court acquitted them

STATE OF KERALA v. SURESH @ SUBHASH & 11

ORS. [DR. ARIJIT PASAYAT, J.]

of the charges relatable to Sections 143, 147, 148, 109, 449 A and 302 read with Section 149 of the Indian Penal Code, 1860 (in short 'IPC').

The basic reason which weighed with the trial court to direct acquittal was the unexplained delay relating to the FIR 8 reaching the concerned Magistrate. Added to that the authenticity of the report given by PWI was doubtful. The High Court found that the evidence of PWI was not believable. There was doubt about the authenticity of Ex. P1 and the unexplained delay in FIR reaching the Magistrate Court. Because of the aforesaid factors the High Court found that there was no scope C for any interference. Learned counsel for the appellant submitted that PWI was an injured witness and merely because the investigation was not done in proper manner, the acquittal should not have been directed. Learned counsel for the respondent supported the judgment.

We find that both the trial court and the High Court have analysed the evidence in great detail to find the prosecution version to be not cogent and credible. According to PWI she gave Ext. P1 FIR before ASI PW17 at 2.30 AM. on 6.9.1996.

E According to PW17 he recorded at 3.00 AM. on 6.9.1996. But Ext. P1 reached the llage Magistrate at 10.30 AM. on 7.9.1996.

The Investigating Officer has not explained the delay. Further the trial court found if impossible physically for giving a lengthy report (Ext. P1) while in Intensive Care Unit. The occurence is F stated to have taken place on 5.9.1996 at 8.15 P.M. According to PW5, he examined the injured and deceased at 9.30 P.M.

If that be so, it has not been explained as to how the FIR came to be lodged at 2.30 A.M. on 6.9.1996. That being so, We find no scope for interference in this appeal which is accordingly G dismissed.

KKT.

Appeal dismissed.
[2009] 6 S.C.R. 260

STATE OF AP.

SAYYAAD SIRAJ MOHAMMED & ORS.

(Criminal Appeal No. 1030-1031/2003)

APRIL 15, 2009

[DR. ARIJIT PASAYAT AND ASOK KUMAR

GANG UL Y, JJ.]

Evidence - Test identification parade - Evidentiary value c of- When before test identification parade conducted, witness taken to jail and accused persons shown to him - Held: There is no purpose in holding test identification parade - High Court right rejecting the prosecution case and acquitting the accused - Thus, order of High Court does not call for D interference. ..

CRIMINAL APP ELLA TE JURISDICTION : Criminal Appeal No.1030-1031 of 2003.

From the Judgment & Order dated 14.04.2002 of the High E Court of Judicature of Andhra Pradesh at Hyderabad in

Criminal Appeal Nos. 1415 of 1997 and 1698 of 1997 ..

I. Venkatanarayana, Manoj Saxena, Rajnish Kumar Singh, Rahul Shukla and T.V. George for the Appellant. '

F Annam D.N. Rao, D. Bhrathi Reddy for the Respondents.

The Judgment of the Court was delivered by

DR. ARIJIT PASAYAT, J. 1. Having heard learned G counsel for the appellant-State and learned counsel for the respondents, we are not inclined to interfere with the order passed by the Andhra Pradesh High Court directing acuqittal of the respondents. The High Court has noted that before the test identification parade was conducted on 20.3.1991, the

H 260

' 1

STATE OF AP. v. SAYYAAD SIRAJ MOHAMMED & 261

ORS. [DR. ARIJIT PASAYAT, J.]

 .. witness (PW1) was taken to the central jail where the accused A persons were shown to him. That being so, there was really no purpose in holding test identification parade. The High Court rightly disbelived the prosecution version and directed acquittal of the respondents. In any event, this is a possible view and therefore no interference is called for. The appeals fail. The bail B bonds executed for giving effect to the order of bail dated 13.10.2003 shall stand discharged.

The appeals are dismissed.

N.J.

Appeals dismissed.
[2009] 6 S.C.R. 931 ...

PREM CHANDRA AGARWAL & ANR.

A -",

U.P. FINANCIAL CORPN. & ORS.

(Civil Appeal No. 2769 of 2009)

APRIL 23, 2009 B

[MARKANDEY KAT JU AND H.L. DATTU, JJ.)

INTERIM ORDER:

Appeal challenging interim order passed by High Court c

- Subsequently final judgment delivered by High Court - HELD: Once a final order is passed, all earlier interim orders merge into the final order, and the interim orders cease to exist .:... In view of the final order passed by the High Court,

)1 the interim order under appeal and any direction therein have D ceased to exist - Appeal has become infructuous and is, accordingly dismissed.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2769 of 2009.

E From the Judgment and Order dated 23.10.2008 of the High Court of Judicature at Allahabad in Civil Misc. Writ Petition No. 40656 of 2007.

WITH F

Contempt Petitiori (C) No. 164 of 2008.

Vijay Hansaria, Ravi Mehrotra, R.K. Singh (for Dharmendra Kumar Sinha) for the Appellant. ..

G Shrish Kumar Misra fbr the Respondent. ' ..

The following Order of the Court was delivered

931 H