Ram Singh @ Chhaju v State of Himachal Pradesh
Supreme Court of India

28 January 2010
Criminal Appeal No. 1248 of 2008
The Judgment was delivered by : H. L. Dattu, J.
1.  This appeal, by the accused, arises out of the judgment of High Court of Himachal Pradesh in Criminal Appeal No. 142 of 1994 dated 20.3.2008, whereby the appellant is convicted for the offence of rape punishable under Section 376 of Indian Penal Code by reversing the judgment of Additional Sessions Judge, Kangra Division in Sessions Case No. 9 of 1992 dated 2.8.1993. The High Court has come to the conclusion that the prosecution has brought home the charge under Section 376 of I.P.C. and has sentenced the appellant to suffer rigorous imprisonment for ten years and to pay a fine of Rs.5000/-, in default of payment of fine to undergo rigorous imprisonment for a further period of one year. The accused feeling aggrieved sought special leave to appeal, on the same being granted, this appeal is before us.
2.  Co-accused Naresh Singh alias Titta died during the pendency of appeal before the High Court.
3.  We shall state the facts of the case as put forth by the prosecution:- Smt. Chanchala Devi, hereinafter referred to as the "victim", is the resident of village Dhabian and, was midwife by profession. Shri Chattar Singh is the husband of Smt. Chanchala Devi. Shri Ashok Kumar (PW-7) is her son. The accused are the residents of village Guriyal, which is situated at a distance of about 2 Kms from village Dhabian. Smt. Chanchala Devi - Victim was present in her house on August 13, 1989. She had gone to bed along with her husband after taking her meal on that day. Her son Ashok Kumar (PW-7) aged about 24 years was present in the house and was sleeping in the courtyard of the house. That night i.e. on the night of 12/13th August, 1989, PW-7 Ashok Kumar woke up his mother Chanchala Devi and told her that Naresh Singh alias Titta (dead) has come to call her as his Bhabi, who was not named by him, has been having labour pains in village Guriyal. The victim went out of the room and saw Naresh Singh alias Titta sitting on the cot of her son in the verandah of the house. The case of the prosecution is that, though the victim refused to the request made by Naresh Singh alias Titta stating that it was not convenient for her as she was having tooth ache, however, after being persuaded by Naresh Singh alias Titta and also by her son PW-7 Ashok Kumar, the victim agreed to accompany Naresh Singh alias Titta to his house situated at village Guriyal. When they had covered a distance of about 30 yards from the house of victim, the appellant Ram Singh alias Chhaju also met them. They all continued walking towards the house of Naresh Singh alias Titta. When they had reached a place known as Tapukar, Naresh Singh alias Titta caught hold of the victim and the appellant Ram Singh alias Chhaju laid her on the ground and opened her trousers. The victim tried to raise alarm, but the Naresh Singh alias Titta dealt a fist blow on her mouth and then gagged it. Both the accused performed sexual intercourse forcibly with the victim and thereafter sneaked away from the place. After returning home, victim had narrated the whole incident to her husband and son. The son of the victim PW-7 Ashok Kumar brought PW-4 Niaz Deen, the Pradhan of the Panchayat on the same night. He was apprised of the incident by the husband of the victim. On his advice, on the following day i.e. on 14.8.1989, the victim being accompanied by her husband reported the matter at police station Nurpur, where her statement was recorded on the basis of which the first information report was registered on 14.8.1989. She was got medically examined at about 12.15 P.M. on the same day. The doctors had opined that victim had been subjected to sexual intercourse 12 to 14 hours prior to her medical examination. The accused were also got medically examined by Dr. Anil Mahajan (PW-3), who had opined that there was nothing suggesting that the accused were incapable of performing sexual intercourse. On completion of the investigation, the final report was filed in the court of Sub- Divisional Magistrate, Nurpur. The case was committed by the learned Magistrate to the Additional Sessions Court, Kangra Division at Dharmashala (Himachal Pradesh) on 6.5.1992, and the same was numbered as Sessions Case No. 9 of 1992. Charges were framed under Section 376 read with Section 34 of Indian Penal Code and put up for trial before the Additional Sessions Judge, Nurpur.
4.  The accused persons pleaded not guilty to the charge. Their defence was that they have been falsely implicated by the victim on account of animosity.
5.  In support of its case, the prosecution examined the victim Smt. Chanchala Devi (PW1) who has supported the prosecution version in all its material particulars. Niaz Deen (PW-4) was also examined as a witness of fact, but he was declared hostile and cross examined by State counsel. Dr. S. Mahajan, (PW-2) was examined to prove the medical examination report of the victim. Dr. Anil Mahajan (PW-3) was examined to prove the medical examination report of the accused. Sardar Balwant Singh, (PW-5) was examined to prove the statement of the accused made before the Station House Officer, but, he was declared hostile and cross examined by the State counsel. Ashok Kumar, (PW-7), son of the victim was examined to corroborate the statement of the victim.
6.  The trial court has found that the prosecution has not been able to prove that the accused persons had sexual intercourse with the victim. Accordingly, has acquitted the appellant herein of the crime.
7.  The State of Himachal Pradesh had carried the matter by filing Criminal Appeal No. 142 of 1994 under Section 378 of the Code of Criminal Procedure before the High Court of Himachal Pradesh against the decision of the trial court. The High Court has allowed the appeal vide its judgment dated 20.3.2008, by setting aside the judgment and order of the trial court and after hearing the accused while deciding on the quantum of sentence, has convicted the accused under Section 376 of the I.P.C. and sentenced to undergo rigorous imprisonment for ten years and to pay a fine of Rs. 5,000/-, in default of payment of fine to undergo rigorous imprisonment for a period of one year which has given rise to this appeal.
8.  While assailing the judgment of the High Court, the learned counsel for the appellant has contended that the finding of conviction of the High Court is unreasonable and not justified on the material on record. It is not proved by reliable and independent evidence that the incident alleged had taken place. It is also not proved from the medical evidence that rape had been committed by the appellant and the co-accused and there is no corroboration of the evidence of the victim by any independent evidence and the testimony of the victim is not reliable and trustworthy and the conviction on the sole testimony of the victim is not justified.
9.  Learned counsel for the appellant has laid great stress on the proposition that the testimony of the victim required corroboration and as no independent corroboration was available, the trial court rightly had passed an order of acquittal which should not have been upset by the High Court in an appeal filed by the State.
10.  The High Court in its judgment has stated that the trial court has erred in appreciating the testimony of the witnesses to the extent the victim has nowhere mentioned in her statement that the appellant Naresh Singh alias Titta (dead) had taken any particular name when he had requested her to accompany him to facilitate the delivery of his Bhabhi. The High Court has also observed that there is no contradiction in the testimony of victim and her son PW-7 Ashok Kumar as both have testified that there was reluctance shown by victim to accompany the appellant Naresh Singh alias Titta (dead) at around 12.00 a.m. at night, to facilitate the delivery of his Bhabhi. The High Court has also observed that the Trial Judge was not justified in coming to the conclusion that Ashok Kumar (PW-7) could not have heard the narration of the incident by the victim to her husband since he was sleeping in the court yard. The High Court has also noticed that the observation of Additional Sessions Judge that the victim did not name the culprits while narrating the incident to PW-4 Niaz Deen Pradhan of village Dhabian contradicts the prosecution case, cannot be held to be correct as the husband of victim in her presence had already told that she was raped by the appellants. Therefore, it is not reasonable to expect from the victim who was under shock due to the incident, to narrate the same to PW-4 Niaz Deen Pradhan in presence her husband and son.
11.  The High Court has also found it difficult to accept the reasoning of the Trial Court about the fact that there were no injuries on the person of the victim belied her testimony that she was subjected to forcible sexual intercourse. The High Court has observed that the victim was suffering from toothache because of which she was unable to firmly resist, and further she could not raise alarm since her mouth had been gagged by the accused persons. The Court has also observed that though the blow with the fist was given on her mouth by the appellant, it may not have caused any serious injury. However, being an old lady of more than 40 years at the relevant time and the appellants being young men both around 20 years, the victim could not have been put up a strong defence. The High Court has also pointed towards the finding that the spot where the victim was raped, shown in the spot inspection map Ext.PK and which has been proved by the Investigation Officer PW-11 Govardhan Dass, shows that at the site of incident, grass and plants of some crop were found damaged and ruffled. The High Court is also not convinced with the trial court's observation that the victim at the late hours of the night should have been accompanied either by her husband or her son. The High Court observes that there was nothing unusual about victim going alone with the appellants as it is normal practice to go with male members to facilitate the deliveries as the midwives are respected like mothers. Therefore, there was no reason for herself or her husband and son to disbelieve the appellant and deny the request of appellant in that situation. The entire conspectus of the case was viewed by the High Court in vivid detail to come to the conclusion that the appellant was guilty of the crime.
12.  It was submitted before us by the learned counsel for the appellant that there was no injury on the person of the victim. According to him, if there was sexual assault on the victim, she would have resisted the offender and in that process she would have received some injuries on other parts of the body. Much importance cannot be given to the absence of defence injuries, because it is not inevitable rule that in the absence of defence injuries the prosecution must necessarily fail to establish its case. In the first information report and also in the evidence of PW-1, it has come on record that she could not cry out for help since her mouth was gagged by the accused. It has also come in the evidence that the victim was aged about 40 years and the accused persons were young and aged about 20 years and, therefore, she was not in a position of equal strength so as to resist the appellants. Even in the absence of any injuries on the person of the victim, in our view, with the other evidence on record, the prosecution is able to establish that the offence was committed.
13.  It was contended by the learned counsel for the appellant that the blood stained clothes which were said to have been handed over to the Officer-in-Charge at the Police Station by the husband of the victim were not sent for chemical examination and, therefore, the corroboration with which such evidence could offer was absent. In our view, the failure of the investigating agency cannot be a ground to discredit the testimony of the victim. The victim had no control over the investigating agency and the negligence, if any, of the investigating officer could not affect the credibility of the statement of PW-1 - the victim. Having regard to the facts and circumstances of this case, we are satisfied that on the basis of the evidence on record, the conviction of the appellant can be sustained.
14.  It is also submitted that in the absence of any injury on the private parts of the victim, the High Court should have disbelieved the prosecution story. In our view, it is difficult to accept the submission of the learned counsel. The reason being the doctor who has been examined as PW-2 has found that the victim PW-1 was used to sexual intercourse and as such absence of injury on the private parts of the victim may not be very significant. PW-1 was also used to sexual intercourse. The evidence of the victim has been corroborated by the evidence of PWs.2 and 3, the two post occurrence witnesses, as well as by the FIR which was lodged without any delay. Therefore, it is difficult to differ from the findings of the High Court.
15.  In the present case, the testimony of the victim inspires confidence. Her testimony is not only corroborated by other witnesses but also by the medical evidence. Even if the statement of Niaz Deen, PW-4 is not taken into consideration, the other corroborative evidence in the case is sufficient to connect the accused with the crime.
16.  Before we conclude, out of sheer deference to learned counsel for the appellant, we intend to notice the feeble submission made by the learned counsel for the appellant. It is contended by the learned counsel that the findings and the conclusion reached by the Sessions Court is one of the possible view in the facts and circumstances of the case and therefore, the High Court ought not to have taken a different view and passed an order of conviction against the appellant. In aid of this submission, the learned counsel has invited our attention to the observations made by this Court in the case of Perla Somasekhara Reddy and Ors. Vs. State of A.P. ( 2009) 7 Scale 115 2009 Indlaw SC 760. In our considered view, the submission of the learned counsel has no merit. This Court in the aforesaid case by way of universal application has not stated, that, whenever there is a judgment and order of acquittal by the Sessions Court, the High Court under no circumstances would interfere with the said order even when it comes to the conclusion that the findings and conclusion reached by the trial court is based on mere conjecture and hypothesis and not on the legal evidence. In fact, in the aforesaid decision this Court has taken note of what has been stated by this Court in the case of Chandrappa and Ors. Vs. State of Karnataka (2007) Crl.L.J. 2136 2007 Indlaw SC 121, wherein apart from others, it is stated, that the appellate court has full power to review, re-appreciate and reconsider the evidence upon which the order of acquittal is founded; the Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law; various expressions, such as, "substantial and compelling reasons", "good and sufficient grounds", "very strong circumstances", "distorted conclusions", "glaring mistakes", etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of "flourishes of language" to emphasis the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion; an appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court; and if two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court.
17.  In the present case, the High Court on re-appreciation of evidence on record has differed with the findings of the Sessions Court on the innocence of the accused and has found him guilty of the charges leveled against him. The High Court after evaluating the manner in which the evidence and other materials on record has been appreciated as well as the conclusions arrived at by the Sessions Court, has come to the conclusion that the findings of the Sessions Court are perverse and has resulted in miscarriage of justice has re-appreciated the evidence and materials on record and has found that the appellant is guilty of the offence alleged. Therefore, in our view, the decision on which reliance has been placed by learned counsel for the appellant would not assist him in any manner whatsoever.
18.  The result of the aforesaid discussion leads to only one conclusion that the accused committed forcible rape on the victim on the intervening night of 12/13th August, 1989, as alleged by her, and his conviction by the High Court is quite justified being based on evidence on record. It is, therefore, confirmed.
19.  We, therefore, find no merit in this appeal and the appeal is, accordingly, dismissed.
Appeal accordingly dismissed


Balbir Singh v State of Punjab
Supreme Court of India

3 March 2005
Appeal (Crl.)  713-714 of 2004
The Judgment was delivered by : K. G. Balakrishnan, J.
1.  The Additional Sessions Judge, Bhatinda, tried four accused for the offences punishable under Section 302 read with Section 34 IPC. Initially, the final report filed by the police was against five accused, but one of the accused was discharged. The Sessions Judge acquitted all the four accused. The State of Punjab filed a criminal appeal against the acquittal of the accused persons and the de-facto complainant filed a revision challenging the acquittal. The appeal and the revision were considered by the High Court and the Division Bench found all the four accused guilty of the offences punishable under Section 302 read with Section 34 IPC and each one of them was sentenced to undergo imprisonment for life and to pay a fine of Rs.2,000/-, with a default sentence of six months further imprisonment. Aggrieved by the findings of the High Court, A-2 and A-3 have filed Criminal Appeal Nos. 776-777 of 2004 and the fourth accused, Balbir Singh has filed Criminal Appeal Nos. 713-714 of 2004. During the pendency of the appeal before the High Court, the first accused, Gorkha Singh passed away.
2.  The incident giving rise to these appeals happened on 1.10.1993 at about 9.30 AM. Deceased Tara Singh had purchased an agricultural field in village Kailey Bander from one Gurdial Kaur in 1990 and since then he had been cultivating that land with the help of his sons, PW-2 Badal Singh, Gurdev Singh and Harpal Singh. According to the prosecution, the appellants herein expected to inherit the property owned by Gurdial Kaur on her death and the purchase of the property by Tara Singh was resented to by them and they bore a grudge against him. On the date of the incident, PW-2 Badal Singh and his father deceased Tara Singh were coming back from the field. PW-3 Jaswinder Kaur, the daughter-in-law of deceased Tara Singh was also in the near vicinity. When Tara Singh reached near the field of one Mithu Singh, the four appellants, namely, Sikander Singh, Gora Singh, Gorkha Singh and Balbir Singh emerged from the nearby field and Gora Singh told that Tara Singh must be taught a lesson. Sikander Singh, threw away his 'Sotti' (wooden stick) and caught hold of Tara Singh. The turban of Tara Singh fell down whereupon Gorkha Singh, who was armed with a 'kulhari' (axe) gave a blow on the left side of the head of Tara Singh. Gora Singh, who was armed with an axe, also hit Tara Singh on the right side of his head. Balbir Singh also gave two blows to Tara Singh with a 'Ghope' (pointed rod). PW-2 Badal Singh and PW-3 Jaswinder Kaur cried out, but the appellants continued to give blows to Tara Singh, who fell on the ground and died. PW-2 Badal Singh left PW-3 Jaswinder Kaur near the dead body of his father and went to meet the Sarpanch of village Kailey Bander. The Sarpanch was not available, so PW-2 reported the incident to his brother, Bhag Singh.
3. He had also met Chowkidar Banta Singh. It may be noticed that Tara Singh was formerly a permanent resident of village Virk Khurd and only after the purchase of the property from Guardial Kaur he had come down and settled near the agricultural field. PW-2 Badal Singh then proceeded to his village Vir Khurd and met Jaswant Singh, the elder brother of his father and along with him he went to the police station and gave the First Information Report.
4.  The Asstt. Sub-Inspector Bhajan Singh PW-5 took over the investigation and reached the place of incident. He recovered the turban and shoes worn by deceased Tara Singh and some blood- stained soil from the place of incident. He held inquest over the dead body and sent the same for post-mortem examination through the Head Constable. There were as many as thirteen injuries on the body of deceased Tara Singh. PW-1 Dr. Kulbir Singh, who conducted the post-mortem deposed that injury no. 11 was fatal and the two horizontal bruises measuring 15 x 2 cms had corresponding internal injury and the seventh and the eighth ribs of deceased Tara Singh were fractured and the fractured ribs had pierced the lung tissue. According to him, the death was due to hemorrhage and shock.
5.  During their examination under Section 313 of the Criminal Procedure Code, the accused set up a very curious plea to the effect that they were falsely implicated and that deceased Tara Singh was attacked by two unknown persons and that DW-1 Gurjant Singh was a witness to the incident and the accused examined Gurjant Singh as DW-1. He deposed that while he was sitting in his house, he heard an alarm and when he reached the place, he saw two persons causing injuries to Tara Singh, but he could not identify them. He found Tara Singh dead on the spot and went to inform his relations and he could not meet anyone. He came to know that Tara Singh was formerly a resident of village Virk Khurd and proceeded to Virk Khurd in his car. There he met PW-2 Badal Singh and then they came back to Kailey Bander. PW-2 Badal Singh made consultation with Jaswant Singh and gave the First Information statement to the police.
6.  The Sessions Judge, of course, did not accept the evidence of DW-1, but he acquitted the accused mainly for the reason that there was inordinate delay in giving the First Information statement to the police by PW-2 and as the witness could not satisfactorily give any explanation, this was taken as a serious lapse on the part of the prosecution. Another reason given by the Sessions Judge was that PW-2 Badal Singh could not have been present at the scene of occurrence as he did not make any attempt to save his father from the assailants. According to the Sessions Judge, had PW-2 been present at the scene of occurrence, he would have certainly intervened to save his father. The Sessions Judge was also of the view that there was no penetrating injury found on the body of the deceased Tara Singh, although according to PW-2, the accused had given a piercing thrust on the body of the deceased Tara Singh with a 'Ghope' and that there were contradictions between the medical evidence and the oral evidence.
7.  The High Court reversed the findings of the Sessions Judge and held that the delay in giving the F.I.R. was of no consequence as it was satisfactorily explained by PW-2. The High Court was also of the view that PW-2 being a young man could not have intervened in the attack on his father as there were four assailants, who were armed. According to the High Court, the same could not be taken as a factor to disbelieve PW-2. The High Court thus reversed the findings of the Sessions Judge.
8.  We heard Shri Ranjit Kumar, learned Senior Counsel for the appellants and also the counsel for the State of Punjab. The evidence of PW-2 and PW-3 shows that the accused attacked the deceased with various weapons. The prosecution evidence shows that deceased Tara Singh and his family members were originally the residents of village Virk Khurd. They had purchased the agricultural property in question about three years before the incident and constructed a hutment nearby and started living there. When PW-2 saw the ghastly incident of attack on his father by the assailants, he could not seek the help of anybody from the village Kailey Bander where the incident took place, probably because he had no acquaintance there. He went in search of the Sarpanch of the village but could not meet him and therefore he was constrained to go to his own village Virk Khurd and met his father's elder brother and then went to the police station. It cannot be said that a young person like PW-2 acted in an unreasonable manner. The counsel for the appellants pointed out that two of his brothers were in the nearby field, but PW-2 did not inform them. As stated before, deceased Tara Singh with his family members had come to village Kailey Bander three years before the incident and probably they too may not have any acquaintances. Therefore, it is quite probable that for this reason PW-2 chose to go to the village Sarpanch. The High Court was fully correct in holding that PW-2 cannot be disbelieved for not having intervened in the melee as there were four assailants who were armed with weapons. In our view, the High Court rightly reversed the findings of the Sessions Judge. The contention of the appellants counsel that there were contradictions between the medical evidence and oral evidence also is of not much consequence as the witness could not be in a position to specifically say as to which portion of the weapon was used when there was a sudden attack by a group of persons.
9.  Coming to the nature of the offence committed by the appellants, there is evidence to the effect that the appellants only wanted to teach a lesson to Tara Singh. They were aggrieved by the fact that deceased Tara Singh had purchased the agricultural land which they expected to get from Gurdial Kaur. Two of the assailants were armed with axes, but they did not use the sharp edge of those weapons and the injuries sustained by deceased Tara Singh would show that there were no deep penetrating injuries. Most of the injuries were of minor nature, having possibly been caused by the blunt edge of the weapon. The doctor, who conducted the post-mortem examination deposed that injury no. 11, namely, two bruises on the back of the deceased Tara Singh fractured two of his ribs. The evidence of PW-2 and PW-3 clearly is to the effect that it was Sikander Singh who caused those injuries, which ultimately proved fatal. Two other injuries were caused by Gorkha Singh, the first accused. Appellants Gora Singh and Balbir Singh are not alleged to have caused any fatal injury to the deceased Tara Singh. Gora Singh, though armed with a 'Kulhari' (axe), used the blunt portion of that axe.
10. Sikandar Singh was armed with a 'Sotti' (wooden stick). He caught hold of deceased Tara Singh to enable other assailants to cause injury to him and Sikandar Singh himself gave 'Sotti' blows on the back of the deceased which resulted in causing fracture of the ribs and, in turn, piercing of the lung tissues of the deceased Tara Singh. There is no dispute that these injuries were caused on Tara Singh. It is clear that Sikandar Singh dealt the fatal blows which ultimately resulted in the death of the deceased. If the entire prosecution evidence is considered in the background of the so called motive alleged, it is very difficult to discern that these appellants had any common intention to cause the death of the deceased. The 'Sotti' blows dealt on the back of deceased Tara Singh proved fatal causing fracture of ribs which pierced his lung tissues.
11.  On careful analysis of the prosecution evidence and the role played by each one of the appellants, we are of the view that the evidence does not show that these appellants shared a common intention to cause the death of the deceased. However, appellant Sikandar Singh caused injuries on deceased Tara Singh which proved to be fatal at the end. The act committed by Sikandar Singh would come within the offence punishable under Section 304 Part I IPC as he could be attributed with the knowledge that the injury caused by him is likely to cause death. The grievous injuries caused by other appellants, namely Gora Singh and Balbir Singh, would fall within the mischief of Section 326 IPC.
12.  In the result, we set aside the conviction and sentence of all the appellants under Section 302 read with Section 34 IPC and alter the conviction of the appellants as follows: Sikandar Singh is found guilty of the offence punishable under Section 304 Part I IPC and he is sentenced to undergo imprisonment for a period of seven years and the other appellants, namely, Gora Singh and Balbir Singh are found guilty of the offence punishable under Section 326 IPC and sentenced to imprisonment for a period of three years.
13.  The appellants are entitled to set off the period of imprisonment already undergone by them. The appeals are accordingly disposed of.
Appeal disposed of


Hiten P. Dalal v Bratindranath Banerjee
Supreme Court of India

11 July 2001
Appeal (Cr.) 688 of 1995
The Judgment was delivered by : Ruma Pal, J
1. The appellant was found guilty of an offence u/s. 138 of the Negotiable Instruments Act, 1881 by the Special Court set up under the Special Court (Trial of Offences relating to Transactions in Securities) Act, 1992 (referred to as, the "Act"). The appellant was sentenced to rigorous imprisonment for a term of one year and a fine for a sum of Rs. 1 lakh, in default to undergo further rigorous imprisonment for a term of three months. Aggrieved by the judgment and order of the Special Court, the appellant has preferred this appeal.
2. In the course of the hearing of the appeal before this Court, learned counsel for the appellant raised a preliminary issue based on the language of sub S. 2 of S. 3 of the Act. It was contended that the jurisdiction of the Special Court was limited to offences committed between 1 April 1991 and on or before 6 June 1992 and the offence alleged having taken place after 6 June 92, the Special Court had no jurisdiction to try it. The Bench then hearing the appeal, recorded in its order dated 7 Sepetember 1999:
"... ... ... Prima Facie we are not in agreement with the contention raised by the learned counsel for the appellant on first principles but the learned counsel for the appellant has brought to our notice a judgment of this Court in the case of Minoo Mehta vs. Sharak D. Mehta (1998) 2 SCC 418 1998 Indlaw SC 438. In the aforesaid judgment on facts of that case this question possibly did not arise for consideration but even otherwise Their Lordships have come to the conclusion :
'Therefore, every offence pertaining to any transaction in securities which is covered by the sweep of the Act, that is if such transaction has taken place between 1 April 1991 and on or before 6 June 1992 would be subjected to the provisions of the Act regarding trial of such an offence.'
Having held so in the later part of the said paragraph the Lordships have come to the conclusion:
'The offence referred to in sub-s. (2) of S. 3 which is within the sweep of S. 7 of the Act must be on offence committed by any person and must have the following two characteristics:
Such offence must relate to transactions in securities; and
Such offence should be alleged to have been committed between 1April 1991 and on or before 6 June 1992'.
This statement of law is contrary to what their Lordships have said in the earlier paragraph as referred to earlier and we are not in agreement with the enunciation made in the second part of above. In this view of the matter, we think it appropriate that this appeal should be placed before a 3-Judge Bench."
The matter was thereafter placed before this Bench and heard.
3. The apparently contradictory observations in Minoo Mehta V. Shavak D. Mehta 1998 Indlaw SC 438, need resolution with reference to the provisions of the Act.
the Act was promulgated on 6 June 92 to "provide for the establishment of a Special Court for the trial of offences relating to transactions in securities and for matters connected therewith or incidental thereto."
4. The jurisdiction of the Special Court was specified in S. 7 and was limited to offences referred to in s. 3(2) of theAct. S. 3(2) insofar as it is relevant provides:
"....... Any offence relating to transactions in securities after the 1 day of April 1991 and on and before 6th June 1992....."
5. The question is - does the period specified qualify the word "offence" or the word "transactions" ? If it is the former, the jurisdiction of the Special Court would be, as contended by the appellant, limited to offences committed within the period specified whenever the transactions may have taken place. The respondent has however contended that the period qualifies the word 'transactions' and that this was not only clear from the language of the statutory provisions but also supported by authority.
6. In our view the respondent's submission is correct and must be accepted. The Statement of Objects and Reasons of theAct gives the background and the focus of thrAct as :
"large scale irregularities and malpractices were noticed in transactions in both the Government and other securities, indulged in by some brokers in collusion with the employees of various banks and financial institutions."
7. The preamble to thrAct also makes it clear that the purpose of the enactment was to deal with those particular transactions in securities. In sub-s. (2) of S. 3 the statutory period occurs after the word transaction. If the period were to qualify the word 'offence' the section would have read "any offence after the 1st day of April and on or before 6 June 1992" From the language used it is apparent that the period relates to the transaction in securities and that the date of the offence is immaterial. Other sections of theAct also show that the object of Act is those particular transactions which were carried out during a particular period of time. Thus S. 4 of thrthe Act allows the Custodian, under certain circumstances to cancel "any contract or agreement entered into at any time after the first day of April 1991 and on or before the 6th June of 1992". The position has been further clarified by Section 9-A(1)(b) (introduced by way of amendment in 1994) which confers on the Special Court all the jurisdiction, powers and authority as were exercisable immediately before the commencement of the amended Act by any civil court in relation to, inter-alia, any matter or claim -
"arising out of transactions in securities entered into after the 1st day of April 1991, and on or before the 6th day of June, 1992, in which a person is notified under sub- s. (2) of Sec. 3 is involved as a party, broker, intermediary or in any other manner."
8. In these circumstances the inevitable conclusion is that the ambit of the Special Courts jurisdiction, whether in criminal proceedings or in civil disputes is in respect of the transactions in securities entered into after the 1st day of April 1991 and on or before 6th day of June, 1992. That the period mentioned in S. 3(2) refers to the transactions and not to the offence is a view which found favour with this Court in Harshad Shantilal Mehta V. Custodian and Others 1998 Indlaw SC 732 A Bench of three-Judges of this Court after considering the various sections of theAct held
"Therefore, the jurisdiction of the Special Court in civil as well as criminal matters is in respect of transactions during the statutory period of 1 April 1991 to 6 June 1992; and in relation to the properties attached, of a notified person. The entire operation of the said Act, therefore, revolves around the transactions in securities during this statutory period."
9. In our opinion the decision in Mino Mehta V. Shavak D. Mehta 1998 Indlaw SC 438 (supra), does not decide to the contrary. In that case shares had been lodged with the accused by the complainant in December 1991. The accused was to arrange the sale of the shares and to pay the sale proceeds to the complainant. In January, 1992 the accused sold the shares and misappropriated the sale proceeds. Thus the transactions in securities as well as the offence of misappropriation had both taken place during the period specified in S. 3 sub-s. (2). The only issue before the Court was whether the Special Court would have jurisdiction to deal with offences even if the accused was not notified by the Custodian. The learned Judges decided the issue in the affirmative.
While reaching its conclusion, the Court observed:
" ................The scheme of Section 7, in the light of the Preamble of theAct and the main purpose for enactment of theAct, appears to be that all criminal proceedings pertaining to prosecutions in connection with the accused involved in transactions in securities during the relevant period will lie before the Special Court and not before ordinary courts as the section starts with a non obstante clause stating that notwithstanding anything contained in any other law, only Special Courts will have exclusive jurisdiction to try such offences."
10. Because the offence and the transactions overlapped, the learned Judges did not make a distinction between the transaction and the offence when they summed up their conclusions by saying :
"The offence referred to in, sub-s. (2) of Section 3, which is within the sweep of S. 7 of theAct must be an offence committed by any person and must have the following two characteristics:
Such offence should be alleged to have been committed between 1 April 1991 and on or before 6 June 1992." The use of the word 'offence' in item 2 was an obvious error because what was meant has been made clear by the Court in the judgment which reads: "Before parting with this case we may state that the learned Senior Counsel for the appellant also submitted that the offence alleged against the appellant was not relating to any transaction in securities during the relevant time but qua the sale consideration alleged to have been received by the appellant out of the said transaction and for which alleged offence u/s. 409 prosecution is sought to be launched against the appellant. It is difficult to agree with this contention. A conjoint reading of the recitals in the complaint which obviously must be assumed to be true at this stage would show that the accused is alleged to have entered into transaction in securities, namely, the shares during the relevant period and out of the said transaction is alleged to have received sale proceeds which he has not handed over or transmitted to the complainant who claims to be entitled to the said amount. Thus the offence alleged is certainly relating to the transaction in securities as said to have been entered into by the accused during the relevant period."
11. It is clear therefore that the summing up did not correctly reflect the Actual view of the Court. In the present case the four cheques which are the subject matter of the criminal proceedings were admittedly executed by the appellant on 24 December 1991, 26 December 1991, 17 February 1992, and 27 March 1992 i.e. within the statutory period. The cheques were drawn on the Andhra Bank in favour of the Standard Chartered Bank (briefly referred to as 'the Bank') for the sums of Rs.27 Crores, Rs.14.5 Crores, Rs.17 Crores, and Rs.19,95,75,000/- respectively. According to the Bank the cheques were issued for payment of loss suffered by the Bank arising out of transactions in securities entered into by the Bank through or at the instance of the appellant during the statutory period. According to the Bank on 21 May 1992 all four cheques were returned dishonoured by the Andhra Bank with the remark "Not arranged for". The Bank served notices on the appellant u/s. 138 of the Negotiable Instruments Act on 31 May 1992 and 1 June 1992 calling upon the appellant to make payment in respect of the four cheques within 15 days from the date of the receipt of the notices. The appellant did not pay. The transactions as alleged being within the statutory period, the Special Court had the jurisdiction to entertain the complaint and the preliminary objection of the appellant is, in the circumstances, rejected.
12. On the merits of the case also, we do not find any reason to interfere with the decision of the Special Court. In the complaint filed on behalf of the Bank by one Bratindranath Banerjee (the respondent herein), on 14 July 1992, it was alleged that the appellant was acting as a broker in respect of security transactions between the Bank and other banks and financial institutions. According to the complaint the appellant had issued the four cheques in discharge of his liabilities to the Bank. The four cheques were presented to Andhra Bank but were dishonoured. A First Information Report was lodged against the appellant and others. In the written statement filed by the appellant u/s. 247 of the Code of Criminal Procedure it was said that pursuant to an oral information from the Bank's officer that the Bank was working on some new scheme and methods of augmenting its income and request for assistance for the same, the appellant agreed to "certain formalities and adjustments as and when required". Pursuant to this arrangement, the appellant had executed and sent several cheques to the bank including the four cheques (Ext. B, C, D & E) which related to certain intended transactions of purchase of security by the appellant from the Standard Chartered Bank. According to the appellant none of these intended transactions actually materialised and as a result the cheques were never to be acted upon or encashed. It was denied that the appellant was liable to make any payment in respect of the four cheques. According to the appellant although the transactions had not taken place and the cheques should have been returned the four cheques were not returned back to the appellant by the Bank through oversight.
13. It is unnecessary to consider the various preliminary stages of the Trial before the Special Court except to note that charges were framed on 26 August 1992 by the Special Court against the appellant u/s. 138 of the Negotiable Instruments Act, 1881.
14. That the four cheques were executed by the appellant in favour of the Standard Chartered Bank (hereafter referred to as the Bank), has not been denied nor was it in dispute that the cheques were dishonoured because of insufficient funds in the Appellants' account with the drawee, viz. Andhra Bank. Because of the admitted execution of the four cheques by the appellant, the Bank was entitled to and did in fact rely upon three presumptions in support of its case, namely, under Sections 118, 138 and 139 of the Negotiable Instruments Act. S. 118 provides, inter-alia, that until the contrary is proved it shall be presumed that every negotiable instrument was made or drawn for consideration, and that every such instrument when it has been accepted, indorsed, negotiated or transferred, was accepted, indorsed, negotiated or transferred for consideration. The presumption which arises u/s. 138 provides more specifically that where any cheque drawn by a person on an account for payment of any amount of money for the discharge in whole or in part of any debt or other liability, is returned by the drawee bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque, such persons shall be deemed to have committed an offence and shall be punished with imprisonment for a term which may extend to twice the amount of the cheque, or with both. The nature of the presumption u/s. 138 is subject to the three conditions specified relating to presentation, giving of the notice and the non-payment after receipt of notice by the drawer of the cheque. All three conditions have not been denied in this case.
15. The appellant's submission that the cheques were not drawn for the 'discharge in whole or in part of any debt or other liability' is answered by the third presumption available to the Bank u/s. 139 of the Negotiable Instruments Act. This section provides that "it shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque, of the nature referred to in S. 138 for the discharge, in whole or in part, of any debt or other liability". The effect of these presumptions is to place the evidential burden on the appellant of proving that the cheque was not received by the Bank towards the discharge of any liability
16. Because both Ss. 138 and 139 require that the Court "shall presume" the liability of the drawer of the cheques for the amounts for which the cheques are drawn, as noted in State of Madras vs. A. Vaidyanatha Iyer AIR 1958 SC 61 1957 Indlaw SC 9, it is obligatory on the Court to raise this presumption in every case where the factual basis for the raising of the presumption had been established. "It introduces an exception to the general rule as to the burden of proof in criminal cases and shifts the onus on to the accused". Such a presumption is a presumption of law, as distinguished from a presumption of fact which describes provisions by which the court "may presume" a certain state of affairs. Presumptions are rules of evidence and do not conflict with the presumption of innocence, because by the latter all that is meant is that the prosecution is obliged to prove the case against the accused beyond reasonable doubt. The obligation on the prosecution may be discharged with the help of presumptions of law or fact unless the accused adduces evidence showing the reasonable possibility of the non-existence of the presumed fact.
17. In other words, provided the facts required to form the basis of a presumption of law exists, no discretion is left with the Court but to draw the statutory conclusion, but this does not preclude the person against whom the presumption is drawn from rebutting it and proving the contrary. A fact is said to be proved when, "after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists" . Therefore, the rebuttal does not have to be conclusively established but such evidence must be adduced before the Court in support of the defence that the Court must either believe the defence to exist or consider its existence to be reasonably probable, the standard of reasonability being that of the 'prudent man'. Judicial statements have differed as to the quantum of rebutting evidence required. In Kundan Lal Rallaram vs Custodian, Evacuee Property, Bombay AIR 1961 SC 1316 1961 Indlaw SC 528, this Court held that the presumption of law under S. 118 of Negotiable Instruments Act could be rebutted, in certain circumstances, by a presumption of fact raised u/s. 114 of the Evidence Act. The decision must be limited to the facts of that case. The more authoritative view has been laid down in the subsequent decision of the Constitution Bench in Dhanvantrai Balwantrai Desai vs State of Maharashtra AIR 1964 SC 575 1962 Indlaw SC 82, where this Court reiterated the principle enunciated in State of Madras vs Vaidyanath Iyer (Supra) and clarified that the distinction between the two kinds of presumption lay not only in the mandate to the Court, but also in the nature of evidence required to rebut the two. In the case of a discretionary presumption the presumption if drawn may be rebutted by an explanation which "might reasonably be true and which is consistent with the innocence" of the accused. On the other hand in the case of a mandatory presumption "the burden resting on the accused person in such a case would not be as light as it is where a presumption is raised under S.114 of the Evidence Act and cannot be held to be discharged merely by reason of the fact that the explanation offered by the accused is reasonable and probable. It must further be shown that the explanation is a true one. The words 'unless the contrary is proved' which occur in this provision make it clear that the presumption has to be rebutted by 'proof' and not by a bare explanation which is merely plausible. A fact is said to be proved when its existence is directly established or when upon the material before it the Court finds its existence to be so probable that a reasonable man would act on the supposition that it exists. Unless, therefore, the explanation is supported by proof, the presumption created by the provision cannot be said to be rebutted......"
[See also V.D. Jhingan vs. State of Uttar Pradesh AIR 1966 SC 1762 1966 Indlaw SC 347; Sailendranath Bose vs. The State of Bihar AIR 1968 SC 1292 1968 Indlaw SC 41 and Ram Krishna Bedu Rane vs. State of Maharashtra 1973 (1) SCC 366 1972 Indlaw SC 447.]
18. We will therefore have to consider whether in the case before us, the appellant had supported his defence by any proof sufficient to rebut the presumption drawn against him. At the trial three witnesses were examined in support of the Bank's case. The first was a Mr. Derek Reed (PW 1), the Bank's Group Security Adviser. Mr. Reed deposed that he had come to India with instructions from the Bank to investigate the fraud which appeared to have been perpetrated in Bombay in which several banks including the Bank were involved. In the course of investigation he found the four cheques Ext. B, C, D & E from the desk of an officer of the Bank who has since been dismissed because of his involvement in the fraud.
19. The Bank's second witness was Mr. S. Gyananavinayagam (PW2).He was the Manager, Operations in Andhra Bank. He deposed that the four cheques were dishonoured on the ground of insufficient funds in the appellant's account. The third witness Mr. Bratindra Nath Banerjee (PW 3) was the Director of the Bank in-charge of the India Task Force set up by the Bank to investigate the fraud. His was the primary evidence relied upon by the Bank. Broadly speaking, Mr. Banerjee deposed that there were two main areas of fraud perpetrated by the appellant. According to him the first fraud committed by the appellant related to large amounts paid by the Bank at the instance of the appellant or through him, for which the Bank had failed to receive any security or valid bank receipts. The second fraud pertained to the Actual purchase and sale of securities at the instance of the appellant and the failure of the appellant to pay the Bank the difference between the contract rate and delivery rate of the securities. He verified the statements pertaining to the transactions between the appellant and the Bank prepared on the basis of the Bank's books of account and other records maintained in the usual course of the business of the Bank. All the statements (Ex. O, P Q and T) were tendered in evidence and marked as exhibits without any objection by the appellant.
20. The first statement pertained to the period between 8 November 1991 and 18 December 1991 and showed the contract rates, delivery rates, the rates of difference and the amount of difference of securities mentioned. The statement along with the deal slips, cost memos, instruction issued by the Reserve Bank of India and entry in a clearing sheet in respect of four deal slips were marked as Ext. 'O'. Out of Ext. 'O', difference of rates covered by four deal slips had been settled by the appellant by giving a cheque for Rs.15 crores. The balance amount on this account was Rs.45,77,40,250/-. The second statement prepared and vouched for by Mr. Banerjee was Ext. 'P' prepared in connection with transactions between 28 December 1991 and 17 February 1992. The statement was supported by 18 deal slips. The liability of the appellant on this account was claimed to be Rs.56,50,50,000/-. Ext. 'P' was subsequently corrected by Ext. 'T' which gave the figure of appellant's liability for the period covered by Ext. 'P' as Rs.39,50,50,000/-. The third statement was marked as Ext. 'Q'. This gave particulars of the claim for the period 21 February 1992 to 27 March 1992. The appellants liability for this period was claimed to be Rs.30,97,34,135/-. Ext. 'Q' was supported by five deal slips.
21. All the deal slips which were printed forms and serially numbered showed the contract rate and the delivery rates.. They were prepared by dealers of the Bank. Mr. Banerjee also stated that the use of the abbreviation 'DIR' in the column which required the name of the Broker, referred to the Appellant. The witness also showed that in respect of certain transactions where the contract rate was less than the delivery rate, the appellant was paid by the Bank. In dealing with the appellant's case namely that the cheques had been given for intended deals which had never taken place, Mr. Banerjee said that he had gone through all the deal slips which had been brought with him to the Court and that there was no evidence of any cancellation of any deal between the appellant and the Bank.
22. In the course of his examination, Mr. Banerjee also gave evidence of payment made by the Bank to the appellant amounting to Rs.1240 crores and of the loss suffered by the Bank on account of the non-furnishing of bank receipts/securities.
23. Two further witnesses were produced by the Bank. One proved the appellant's account with the Bank and the second proved the Appellant's account with Andhra Bank for the relevant period.
24. As far as the appellant's defence was concerned, he did not enter the witness box to support his case that the four cheques in particular had been given in respect of any arrangement or in respect of any transactions which did not materialise. The four witnesses called by the Appellant apart from those subpoenaed to produce documents, were Mr. Ramesh Laxman Kamat (DW 1) Mr. S.R. A. Rao (DW 2), Mr. G. D. Bhalla (DW 3) and Mr. G. CKC Talukdar (DW. 4). The Special Court found that the evidence of DW 1 was not credit-worthy and that "almost all points including inconsequential points and points which could not be denied, (he) prevaricated ....... (and) ...... sought to deny the truth until truth could no longer be denied." DW 1 was then a Deputy General Manager of the State Bank of India (referred to as SBI). He had sought to contend that a number of transactions mentioned in the four statements viz. Exs. O, P and Q were ready forward transactions between the Bank and SBI, and did not reflect the sale and purchase of securities. It was a case which he was unable to substantiate with reference to the documents already on record or produced from the custody of the CBI. The documents produced by the witness himself were found by the Special Court to be suspect.
25. The second witness for the defence, Mr. SRA Rao also sought to establish that one transaction in Ex.O was non- existent or a dummy transaction. The third defence witness,Mr. G.D. Bhalla, Branch Manager of Andhra Bank, proved that the appellant had made payments of several crores to the Bank.
26. The fourth witness, G.K. Talukdar, a staff officer of the Reserve Bank of India produced a list stipulating contract rates of several securities, in an attempt to show that the contract rates claimed by the Bank were not correct. It was not stated that the list applied to the Bank or that other rates could not be contracted for.
27. The brunt of the evidence given by the appellant's witnesses was as to the nature of the transactions between the appellant and the Bank. However, not one of the defence witnesses gave any evidence in support of the only defence of the Appellant, namely that the four cheques in question had been given towards intended transactions which did not take place. No one said why the appellant had executed and delivered the particular cheques to the Bank or that the appellant had not given the four cheques to discharge his debts to the Bank. Nor did any defence witness claim that the cheques were given an account of any ready forward transactions. In fact, DW 1 in cross- examination admitted that it was not the practice of a purchasing party to hand over cheques in advance. The appellant alone could have said why he had admittedly executed the four cheques, handed them over to the Bank and never asked for their return. He did not choose to do so.
As said by the Special Court :
"Thus according to the Accused, the cheques Exs. B and C were delivered on 23 December 1991. This ostensibly was for intended purchases of 2 crores and 1.08 crores Units. According to him the cheque Ex. D was given on 17 February 1992. This ostensibly for intended purchase of 1,22,50,000 Units. The Ex. was allegedly given on 27th March 1992 for intended purchase of 7 crore Units of Can Star and 10 crore Units of Can Premium. Apart from what is stated in the Written Statement there is no evidence or proof in support of this case."
28. The burden was on the appellant to disapprove the presumptions under Ss. 138 and 139 a burden which he failed to discharge at all. The averment in the written statement of the appellant was not enough. Incidentally, the defence in the written statement that the four cheques were given for intended transactions was not the answer given by the Appellant to the notice u/s. 138. Then he had said that the cheques were given to assist the Bank for restructuring (Ex.H). It was necessary for the appellant at least to show on the basis of acceptable evidence either that his explanation in the written statement was so probable that a prudent man ought to accept it or to establish that the effect of the material brought on the record, in its totality, rendered the existence of the fact presumed, improbable. (Vide Trilok Chand Jain Vs. State of Delhi 1975 (4) SCC 761 1975 Indlaw SC 220 ). The appellant has done neither. In the absence of any such proof the presumptions under Ss. 138 and 139 must prevail.
29. We may also mention here that in proceedings initiated by the Bank to recover monies from the appellant in connection with the first area of fraud mentioned by B. Banerjee (PW 3), this Court in Standard Chartered Bank vs. Custodian (2000 (6) SCC 427 2000 Indlaw SC 276) upholding the decision of the Special Court, found that the appellant was liable to pay the Bank a sum of Rs.280.00 crores which is several times the amount covered by the four cheques in question. The argument of the Appellant before the Special Court that no offence u/s. 138 had in fact been committed because he could not have paid within the period of 15 days after receipt of the notice even if he wanted to, was rightly rejected. The appellant's submission was based on the fact that he had been notified by the Custodian u/s. 3 of theAct and all his properties had consequently stood attached. But, as observed by the Learned Special Court, the Special Court had before it a number of applications by a number of parties asking for permission to fulfill their obligations under contracts. In some cases the Court had granted them. There was nothing which prevented the Appellant from applying to the Special Court for permission to fulfill his obligations or to pay off his debts under the cheques Exs. B, C, D & E. No attempt had bean make by the Appellant to make any payment towards the dishonoured cheques. The appellant would not have paid even if he could have. This is clear not only from the correspondence, and the appellant's conduct but also from his defence of total denial of liability. The argument was therefore wholly academic.
30. The Special Court found the appellant's defence improbable and the evidence adduced at his instance flawed and unbelievable. After meticulously scanning both the oral and documentary evidence and ultimately drawing on the presumptions statutorily provided under sections 118, 138 and 139 of the Negotiable Instruments Act, the appellant was found guilty. For the reasons stated earlier, there is no ground for us to decide differently and to differ from the view taken by the Special Court in holding the appellant guilty of the offence with which he was charged. We therefore affirm the conviction and sentence imposed on the appellant by the Special Court and dismiss the appeal with costs assessed at Rs.10,000/-.
Appeal dismissed.


Kuldeep Singh v Commissioner of Police and Others
Supreme Court of India

17 December 1998
C.A. No. 6359-6361/1998
The Judgment was delivered by: S. Saghir Ahmad, J.
1. Leave granted.
2. The appellant, a constable in the Delhi Police was dismissed, after a regular departmental enquiry, from service, by order dated 03.05.1991, passed by Dy Commissioner of Police, South District, New Delhi, which was upheld in appeal by Addl. Commissioner of Police by his order dated 22.07.1991. The appellant then approached the Central Administrative Tribunal, Principal Bench, New Delhi and the Tribunal, by the impugned judgment dated 28th February, 1997, dismissed the Claim Petition.
3. A writ Petition filed before the Delhi High Court against this judgment was dismissed on 19.09.1997 as not maintainable as the judgment passed by the Tribunal was given before the date on which the decision of this Court was rendered in L.Chandra Kumar Vs. Union of India & Others, AIR 1997 SC 1125, (1997) 3 SCC 261 1997 Indlaw SC 2816, in which it was held that a writ petition against the order passed by the Tribunal, constituted under the Administrative Tribunal Act, 1985, would be maintainable (prospectively) before a High Court. The Review Application filed against the judgment of the Tribunal was dismissed on 26.05.1997.
Learned counsel for the appellant has contended that the findings recorded by the Enquiry Officer cannot be sustained as the enquiry itself was held in utter violation of the principles of natural justice. It is also contended that there was no evidence worth the name to sustain the charge framed against the appellant and therefore, the findings are perverse particularly as no reasonable person could have come to these findings on the basis of the evidence brought on record.
4. Learned counsel appearing on behalf of Union of India has, on the other hand, contended that the enquiry was held in consonance with the principles of natural justice and during the course of the enquiry, full opportunity was given to the appellant to defend himself. As far the evidence is concerned, it is contended that though it is true that none of the complainant was examined but on account of Rule 16(3) of the Delhi Police Rules, 1980, it was not required to produce the complainant in person as the Rule itself contemplated that in the absence of a witness whose presence could not be procured without undue delay, inconvenience or expense, his statement, already made on an earlier occasion, could be placed on record in the departmental enquiry and the matter could be decided on that basis. It was under this Rule that the previous joint statement of the complainants was brought on record without examining any of them. Learned counsel for the respondents contended that the scope of judicial review in disciplinary proceedings is extremely narrow and limited. The court cannot, it is contended, re-examine or re-appraise the evidence and substitute its own conclusion in place of the conclusions arrived at by the Enquiry Officer or the disciplinary authority on that evidence.
5. It is no doubt true that the High Court u/art. 226 or this Court u/art. 32 would not interfere with the findings recorded at the departmental enquiry by the disciplinary authority or the Enquiry Officer as a matter of course. The Court cannot sit in appeal over those findings and assume the role of the Appellate Authority. But this does not mean that in no circumstance can the Court interfere. The power of judicial review available to the High Court as also to this Court under the Constitution takes in its stride the domestic enquiry as well and it can interfere with the conclusions reached therein if there was no evidence to support the findings or the findings recorded were such as could not have been reached by an ordinary prudent man or the findings were perverse or made at the dictate of the superior authority.
6. In Nand Kishore vs. State of Bihar, AIR 1978 SC 1277 = (1978) 3 SCC 366 = 1978 (3) SCR 708 1978 Indlaw SC 172, it was held that the disciplinary proceedings before a domestic Tribunal are of quasi-judicial character and, therefore, it is necessary that the Tribunal should arrive at its conclusions on the basis of some evidence, that is to say, such evidence which, and that too, with some degree of definiteness, points to the guilt of the delinquent and does not leave the matter in a suspicious state as mere suspicion cannot take the place of proof even in domestic enquiries. If, therefore, there is no evidence to sustain the charges framed against the delinquent, he cannot be held to be guilty as in that event, the findings recorded by the Enquiry Officer would be perverse.
7. The findings, recorded in a domestic enquiry, can be characterised as perverse if it is shown that such a finding is not supported by any evidence on record or is not based on the evidence adduced by the parties or no reasonable person could have come to those findings on the basis of the that evidence. This principle was laid down by this Court in State of Andhra Pradesh vs. Sree Rama Rao. 1964 2 LLJ 150 = AIR 1963 SC 1723 = 1964 (3) SCR 25 1963 Indlaw SC 183, in which the question was whether the High Court, under Article 226, could interfere with the findings recorded at the departmental enquiry. This decision was followed in Central Bank of India vs. Prakash Chand Jain, 1969 2 LLJ 377 (SC) = AIR 1969 SC 983 1968 Indlaw SC 209 and Bharat Iron Works vs. Bhagubhai Balubhai Patel & Ors. 1976 Labour & Industrial Cases 4 (SC) = AIR 1976 SC 98 = 1976 (2) SCR 280 = (1976) 1 SCC 518 1975 Indlaw SC 381. In Rajinder Kumar Kindra vs. Delhi Administration through Secretary (Labour) and Others. AIR 1984 SC 1805 = 1985 (1) SCR 866 = (1984) 4 SCC 635 1984 Indlaw SC 210 , it was laid down that where the findings of misconduct are based on no legal evidence and the conclusion is one to which no reasonable man could come, the findings can be rejected as perverse. It was also laid down that where a quasi-judicial tribunal records findings based on no legal evidence and the findings are his mere ipse dixit or based on conjectures and surmises, the enquiry suffers from the additional infirmity of non-application of mind and stands vitiated.
8. Normally the High Court and this Court would not interfere with the findings of fact recorded at the domestic enquiry but if the finding of "guilt" is based on no evidence, it would be a perverse finding and would be amenable to judicial scrutiny.
9. A broad distinction has, therefore, to be maintained between the decisions which are perverse and those which are not. If a decision is arrived at on no evidence or evidence which is thoroughly unreliable and no reasonable person would act upon it, the order would be perverse, But if there is some evidence on record which is acceptable and which could be relied upon, howsoever compendious it may be the conclusions would not be treated as perverse and the findings would not be interfered with.
10. In the light of the above principles, let us scrutinise the case in hand.
11. The charge framed against the appellant in the instant case is as under:-
"You, Constable Kuldeep Singh No.2138/SD. are hereby charged that while posted at P.P. Amar Colony on 22.2.1990. You kept illegally Rs.200/out of Rs. 1000/- given by the factory owner, Smt. Meena Mishra running her factory at A-25, Garhi Lajpat Nagar for the payment of her laborers, Shri Radhey Shyam S/O Shri Phool Vash. Shri Rapal Singh S/O Shri Brahma Nand and Shri Shiv Kumar S/O Shri Ganga Ram. All these three laborers had made a complaint that Smt. Meena Mishra had stopped their payment or Rs. 2200/- for three months.
The above act your part amounts to grave misconduct and unbecoming of a police officers which renders you, constable Kuldeep Singh No. 2138/SD, liable for punishment u/s 21 of Delhi Police Act, 1978.
Sd/- Shakti Singh
SHAKTI SINGH
Inspector,
Enquiry Officer,
DE Cell, Vigilance, Delhi."
12. The list of witnesses who were proposed to be examined at the domestic enquiry, as set out in the charge-sheet, was:-
13. The list of documents, indicated in the charge-sheet, was:-
List of documents.
1.Copy of report of SHO/Lajpat Nagar, dated 5.3.1990 against Constable Kuldeep Singh No.2138/SD.
2.Copy of Laborers Statement.
SO/DE Cell."
14. The charge against the appellant thus was that on 22.2.1990, three laborers namely, Radhey Shyam, Rajpal Singh and Shiv Kumar who were working in the factory of Smt. Meena Mishra at A-25, Garhi, Lajpat Nagar, and had not been paid their salary by the factory owner had approached the appellant who was posted at Police Post, Amar Colony, attached to P.S. Lajpat Nagar, New Delhi, for his help in the matter. The appellant along with the aforesaid laborers went to the factory owner who gave Rs. 1000/- to the appellant for payment to the three laborers but the appellant did not pay the whole of the amount to them and instead gave them only Rs. 800/-, keeping an amount of Rs. 200/- in his own pocket.
15. In order to prove this charge, the Department examined Inspector D.D. Sharma, SHO, P.S. Lajpat Nagar; and Smt. Meena Mishra. Their statements have been reproduced in copious details in the findings submitted by the Enquiry Officer, a copy of which has been placed on the record. Smt. Meena Mishra stated that the three persons, namely, Rajpal Singh, Radhey Shyam and Shiv Kumar, were working in her factory, to whom she had made payment separately and individually. She stated. that she had paid Rs. 563/- to Rajpal; Rs.211/- to Shiv Kumar and another sum of Rs. 808/- jointly to Radhey Shyam and Rajpal. She stated that she had not paid Rs. 1000/- to Kuldeep Sing (appellant) on 22.2.1990, as she had asked the three laborers to come after a few days and it was then that the whole of the amount described above which was due from her was paid to them.
16. Inspector D.D. Sharma, who was, at the relevant time. posted as S.H.O. P.S. Lajpat Nagar, New Delhi. stated that he had received a complaint from Radhey Shyam, Rajpal Singh and Shiv Kumar. They were summoned to the Police Post, Amar Colony where the contents of the complaint were verified from them and their statement was recorded. No other witness was examined on behalf of the Department, not even the complainants, Rajpal Singh and Radhey Shyam, though their names were mentioned in the charge-sheet for being examined as witnesses against the appellant.
17. The appellant examined one of the complainants, namely, Shiv Kumar in defence who supported the appellant that Smt. Meena Mishra had not made any payment on 22.2.1990 but had called him and two other complainants, namely, Radhey Shyam and Rajpal Singh after few days and when they went again to her, she made the full payment.
18. The appellant also examined constable Shoukat Ali who was posted, at the relevant time, at Police Post Amar Colony. He stated that Radhey Shyam, Shiv Kumar and Rajpal Singh had come to the Police Post to make a complaint against Smt. Meena Mishra that she had not paid them their salary. This constable directed them to meet the Emergency Officer, ASI Bhopal Singh who sent the appellant with them to Smt. Meena Mishra. The appellant came back and informed ASI Bhopal Singh that Smt. Meena Mishra had agreed to pay the amount due from her to these three persons after a few days.
19. ASI Jagdish Prasad and ASI Bhopal Singh, who were also examined in defence, corroborated the above statement of constable Shoukat Ali.
20. ASI Bhopal Singh further stated that the appellant was deputed by him to go to Smt. Meena Mishra with the complainants and the the appellant, on his return from the factory, told him that Smt. Meena Mishra had agreed to make payment to the three laborers a few days later. The witness, however, stated that all the three laborers had come to Police Post, Amar Colony of P.S. Lajpat Nagar on 22.2.1990 where their statement was recorded by ASI Jagdish Prasad on the dictation of SHO D.D. Sharma. This statement was placed on the record before the Enquiry Officer. This was the entire evidence produced at the domestic enquiry.
21. What immediately strikes the mind is that Smt. Meena Mishra, who is alleged to have paid the amount of Rs. 1000/- to the appellant, stated in clear terms as a witness for the Department, that she had not made any payment to the appellant. This payment is not proved in any other manner as none of the three recipients of the above amount, who were the complainants, has been produced at the departmental enquiry, though two of them, namely, Radhey Shyam and Rajpal Singh were proposed to be examined.
22. Non-production of the complainants is sought to be justified with reference to Rule 16(3) of the Delhi Police Rules, 1980. Rule 18(3) is an under:-
"If the accused police officer does not admit the misconduct, the E.O. shall proceed to record evidence in support of the accusation as is available and necessary to support the charge. As far as possible the witnesses shall be examined direct and in the presence of the accused, who shall be given opportunity to take notes of their statements and corssexamine them. The E.O. is empowered, however, to bring on record the earlier statement of any witness whose presence cannot, in the opinion of such officer be procured without undue delay, inconvenience or expense necessary provided that it has been recorded and attested by a police officer superior in rank to the accused officer or by a Magistrate and is either signed by the person making it or has been recorded by such officer during an investigation or a judicial enquiry or trial. The statements and documents so brought on record in the departmental proceedings shall also be read out to the accused officer and shall be given an opportunity to take notes, Unsigned statements shall be brought on record only through recording the statements of the officer or Magistrate who had recorded the statement of the witness concerned. The accused shall be bound to answer any questions which the E.O. may deem fit to put to him with a view to elucidating the facts referred to in the statements or documents thus brought on record."
23. This Rule, which lays down the procedure to be followed in the departmental enquiry, itself postulates examination of all the witnesses in the presence of the accused who is also to be given an opportunity to crossexamine them. In case, the presence of any witness cannot be procured without undue delay, inconvenience or expense, his previous statement could be brought on record subject to the condition that the previous statement was recorded and attested by a police officer superior in rank than the delinquent. If such statement was recorded by the Magistrate and attested by him then also it could be brought or record. The further requirement is that the statement either should have been signed by the person concerned, namely, the person who has made that statement, or it was recorded during an investigation or a judicial enquiry or trial. The Rule further provides that unsigned statement shall be brought on record only through the process of examining the Officer or the Magistrate who had earlier recorded the statement of the witness whose presence could not be procured.
24. Rule 16(3) is almost akin to Ss. 32 and 33 of the Evidence Act. Before the Rule can be invoked, the factors enumerated therein, namely, that the presence of the witness cannot be procured without undue delay, inconvenience or expense, have to be found to be existing as they constitute the condition-precedent" for the exercise of jurisdiction for this purpose. In the absence of these factors, the jurisdiction under Rule 16(3) cannot be exercised.
25. Rajpal Singh and Radhey Shyam, who were the original complainants along with Shiv Kumar, were not examined and the Enquiry Officer, regarding their absence, has stated in his report as under:-
"The two prosecution witnessess Rajpal Singh and Radhya Shyam have not attended to proceeding.
They have not been found residing in their vill. now and it had come to notice that the defaulter has managed their disappearance and has settled them some where in Devli Khanpur and also has arranged their employment but the addresses of those PWs are not known. Such is the act of the defaulter to create his defence and is an attempt to hide his misconduct. Though their complaint Ex. PW-1/A has been exhibited and has been taken on file to ascertain the facts and for natural justice."
26. This will show that the blame for the non-availability of these two witnesses has been laid on the appellant who was already under suspension and it is not understandable as to how and on what basis or on what material, the Enquiry Officer came to the conclusion that the appellant was responsible for their disappearance or had procured employment for them in Devli Khanpur. If it was known to the Enquiry Officer that they were available in Devli Khanpur, was any attempt made to contact them at Devli Khanpur or to bring them to the enquiry proceedings from that place, is not indicated by the Enquiry Officer in his report making it obvious that the factors necessary for the exercise of jurisdiction under Rule 16(3) were not present and it was not open to the Enquiry Officer to have taken recourse to this Rule to bring on record the previous statement of the complainants which allegedly was recorded by Inspector D.D. Sharma. Moreover, the so-called previous statement itself of the complainants appears to be a highly suspicious document for the reason that S.H.O., D.D. Sharma had stated before the Enquiry Officer that he had received a complaint of Radhey Shyam, Rajpal Sing and Shiv Kumar whereupon all the three persons were summoned by him and after verifying the facts from those complainants had recorded their statement which he had dictated to ASI Jagdish Prasad. There were, therefore, two documents:
(i) The original complaint made by the aforesaid three persons:
(ii) The statement of these persons, recorded by ASI Jagdish Prasad, at the dictation of S.H.O., D.D. Sharma, after verifying the facts, set out in the complaint, from these persons.
(1) The original complaint was not placed on the record and it was the statement, recorded by S.H.O., D.D. Sharma, which was produced before the Enquiry Officer. The absence of original complaint, therefore, indicates that there was, in fact, no complaint in existence which further supports the statement of Department's own witness Smt. Meena Mishra that no payment was made by her on 22.02.1990. Apart from the above, Rule 16(3) has to be considered in the light of the provisions contained in Art. 311(2) of the Constitution to find out whether it purports to provide reasonable opportunity of hearing to the delinquent. Reasonable opportunity contemplated by Art. 311(2) means "Hearing" in accordance with the principles of natural justice under which one of the basic requirements is that all the witnesses in the departmental enquiry shall be examined in the presence of the delinquent who shall be given an opportunity to cross-examine them. Where a statement previously made by a witness, either during the course of preliminary enquiry or investigation, is proposed to be brought on record in the departmental proceedings, the law as laid down by this Court is that a copy of that statement should first be supplied to the delinquent, who should thereafter be given an opportunity to cross-examine that witness.
27. In State of Mysore vs. Shiv Basappa 1963(2) SCR 943 = AIR 1963 SC 375 1962 Indlaw SC 139, the witness was not examined in the presence of the delinquent so far as his examination-in-chief was concerned and it was his previous statement recorded at an earlier stage which was brought on record. That statement was put to the witness who acknowledged having made that statement. The witness was thereafter offered for cross-examination and it was held that although the statement (examination-in-chief) was not recorded in the presence of the delinquent, since the witness had been offered for cross-examination after he acknowledged having made the previous statement, the rules of natural justice were sufficiently complied with.
28. In Kasoram Cotton Mills Ltd. vs. Gangadhar 1964(2) SCR 809 = AIR 1964 SC 708 1963 Indlaw SC 49 AND State of U.P. vs. Om Prakash Gupta, AIR 1970 SC 679 1969 Indlaw SC 448, the above principles were reiterated and it was laid down that if a previous statement of the witness was intended to be brought on record, it could be done provided the witness was offered for cross-examination by the delinquent.
29. Having regard to the law as set out above, and also having regard to the fact that the factors set out in Rule 16(3) of theDelhi Police (F & A) Rules, 1980, did not exist with the result that Rule 16(3) itself could not be invoked, we are of the opinion that the Enquiry Officer was not right in bringing on record the so-called previous statement of witnesses Radhey Shyam and Rajpal Singh.
30. It will be noticed that there were three complainants but only two, namely, Radhey Shyam and Rajpal Singh were proposed to be examined. Why was not the third complainant, Shiv Kumar, proposed to be examined? The reason becomes obvious from the fact that when he was examined as a Defence witness, he fully supported the appellant by stating that no payment was made by Smt. Meena Mishra on that date. But he was held by the Enquiry Officer to be an impostor on the ground that he had not proved himself to be actual Shiv Kumar. The Enquiry Officer has observed as under:-
"DW 1, Sh. Shiv Kumar is a prepared witness and has not proved himself to be actual Shiv Kumar. This DW 1 has denied that he had visited the police station and had never met with SHO. Moreover he has denied to have signed EX PW-A/A. He had not made any complaint to the SHO. His version has been contradicted by ASI Jagdish Prasad, DW-4 the writer of this complaint Ex PW-1/A. Both these defaulter himself. So the statement of DW-1, Shiv Kumar has not been relied upon because he is not actual Shiv Kumar who is a complainant in this case and is a false person who has been produce by the defaulter."
31. The reasons why he has been held to be an impostor or a false person have not been indicated. The finding in this regard is wholly arbitrary and perverse.
32. The findings recorded by the Enquiry Officer, have also been upheld by the Deputy Commissioner of Police, South District, New Delhi who had passed the order on 3rd of May, 1991 by which the appellant was dismissed from service. The Addl. Commissioner of Police, before whom the appeal was filed by the appellant, also agreed with the findings recorded by the Enquiry Officer as also the Deputy Commissioner and dismissed the appeal on 22.07.1991.
33. From the findings recorded separately by the Deputy Commissioner of Police, it would appear that there is a voucher indicating payment of Rs. 1000/- to Rajpal Singh, one of the labourers, on 8th of February, 1990. This document was not mentioned in the chargesheet in which only two documents were proposed to be relied upon against the appellant, namely, copy of the report of S.H.O., Lajpat Nagar dated 5th of March, 1990 against the appellant and the copy of the labourers' statement. This document has, therefore, to be excluded from consideration as it could not have been relied upon or even referred to by the Dy. Commissioner of Police. Moreover, according to the charge framed against the appellant, payment was made on 22.2.90 and not on 08.02.90 as indicated in the voucher and, therefore, voucher, for this reason also, has to be excluded.
34. To sum up, the charge against the appellant consisted of two components, namely :
(a) On 22.2.90 Smt. Meena Mishra paid Rs. 1000/- to the appellant for being paid to the three labourers.
(b) Appellant paid Rs. 800/- to labourers and kept Rs. 200/- with himself.
35. Smt. Meena Mishra, appearing as a witness for the Department, denied having made any payment to the appellant on that day. The labourers to whom the payment is said to have been made have not been produced at the domestic enquiry. Their so-called previous statement could not have been brought on record under Rule 16(3). As such, there was absolutely no evidence in support of the charge framed against the appellant and the entire findings recorded by the Enquiry Officer are vitiated by reason of the fact that they are not supported by any evidence on record and are wholly perverse.
36. The Enquiry Officer did not sit with an open mind to hold an impartial domestic enquiry which is an essential component of the principles of natural justice as also that of "Reasonable Opportunity", contemplated by Art. 311(2) of theConstitution. The "Bias" in favour of the Department had so badly affected the Enquiry Officer's whole faculty of reasoning that even non-production of the complainants was ascribed to the appellant which squarely was the fault of the Department. Once the Department knew that the labourers were employed somewhere in Devli Khanpur, their presence could have been procured and they could have been produced before the Enquiry Officer to prove the charge framed against the appellant. He has acted so arbitrarily in the matter and has found the appellant guilty in such a coarse manner that it becomes apparent that he was merely carrying out the command from some superior officer who perhaps directed "fix him up".
37. For the reasons stated above, the appeals are allowed. The judgment and order dated 28th February, 1997, passed by the Central Administrative Tribunal, is set aside.
38. The order dated 3rd of May, 1991, passed by Deputy Commissioner of Police by which the appellant was dismissed from service as also the order passed in appeal by Addl. Commissioner of Police are quashed and the respondents are directed to reinstate the appellant with all consequential benefits including all the arrears of pay up-to-date which shall be paid within three months from today. There will, however, be no order as to costs.
Appeals allowed