High Court of Allahabad

Vivek Kumar Singh Vs. State of U.P. and Ors.

MANU/UP/2234/2018

31.05.2018

Criminal

Mere breach of contract cannot give rise to criminal prosecution for cheating unless fraudulent or dishonest intention is shown right at beginning of transaction

Present application under Section 482 of Code of Criminal Procedure, 1973 (CrPC) has been filed for quashing the summoning order passed by Additional Chief Judicial Magistrate, passed in Complaint Case under Section 406, 420, 467, 468 of Indian Penal Code, 1860 (IPC), as well as entire proceeding of the case. Opposite Party-2 lodged an FIR under Section 406, 420 IPC. Magistrate by order rejected the final report and permitted the complainant to treat FIR as complaint case and registered it as Complaint Case. Magistrate vide order found that, the complaint and the evidence disclosed offence and summoned the accused, named in FIR. Hence, present petition has been filed.

Supreme Court in Hridaya Ranjan Prasad Verma v. State of Bihar, has held that on a reading of the Section 415 of IPC it is manifest that in the definition there are set forth two separate classes of acts which the person deceived may be induced to do. In the first place, he may be induced fraudulently or dishonestly to deliver any property to any person. The second class of acts set forth in the section is the doing or omitting to do anything which the person deceived would not do or omit to do if he were not so deceived. In the first class of cases the inducing must be fraudulent or dishonest. In the second class of acts, the inducing must be intentional but not fraudulent or dishonest.

In determining the question, it has to be kept in mind that the distinction between mere breach of contract and the offence of cheating is a fine one. It depends upon the intention of the accused at the time of inducement which may be judged by his subsequent conduct but for this subsequent conduct is not the sole test. Mere breach of contract cannot give rise to criminal prosecution for cheating unless fraudulent or dishonest intention is shown right at the beginning of the transaction, that is the time when the offence is said to have been committed. Therefore, it is the intention which is the gist of the offence. To hold a person guilty of cheating, it is necessary to show that he had fraudulent or dishonest intention at the time of making the promise. From his mere failure to keep up promise subsequently such a culpable intention right at the beginning, that is, when he made the promise cannot be presumed.

A perusal of the allegations made in the FIR as well as statements of witnesses, shows that, it discloses commission of the offence and cannot be said to a dispute of civil nature only. Magistrate has not committed any illegality in passing summoning order, and taking cognizance in the case.

Section 181(4) of CrPC provides that, offence of criminal misappropriation or of criminal breach of trust may be inquired into or tried by a Court within whose local jurisdiction the offence was committed or any part of the property which is the subject to the offence was received or retained, or was required to be returned or accounted for, by the accused person. Allegation in the FIR and statements of the witnesses was that money deposited in Bank account of Union Bank of India, Godauliya Branch, Varanasi, was misappropriated by the accused without her consent and knowledge. Varanasi Court has jurisdiction to try the offence in this respect. Whether the applicant had connived for committing offence with main accused is a question of fact and could be decided after taking evidence. Entire proceeding of criminal complaint is not liable to quashed at this stage. Charge in respect of obtaining gift deed fraudulently would be framed separately under Section 218 of CrPC. It would be open for the Applicant to raise question of jurisdiction to try that charge. However at this stage, it cannot be said that entire proceeding before Additional Chief Judicial Magistrate, Varanasi, is without jurisdiction. Entire proceeding of Complaint under Section 406, 420, 467, 468 of IPC, is not liable to be quashed. The application under Section 482 of CrPC is dismissed.

Relevant

Hridaya Ranjan Pd. Verma & Ors. vs. State of Bihar and AnotherMANU/SC/0223/2000

Tags : Misappropriation Proceedings Quashing of

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High Court of Himachal Pradesh

State of Himachal Pradesh Vs. Man Singh

MANU/HP/0686/2018

31.05.2018

Criminal

A finding may be said to be perverse, if it is against weight of evidence, or if finding so outrageously defies logic as to suffer from vice of irrationality

In present case, aggrieved by the order of acquittal passed by the learned Additional Sessions Judge, in favour of the Respondent, who had been charged for the commission of the offence punishable under Section 302 of the Indian Penal Code (IPC), the State has filed the instant appeal. The prosecution examined as many as 20 witnesses and thereafter the accused was examined under Section 313 of Code of Criminal Procedure, 1973 (CrPC), the defence of the accused was that of denial simpliciter and he claimed that, he had been falsely implicated, however, no defence evidence was led.

Instant is an appeal against the order of acquittal and as regards the scope of interference in appeal arising out of an order of acquittal, it is well established principle of law, consistently re-iterated and followed by all the Courts, is that while dealing with a judgment of acquittal, an Appellate Court must consider the entire evidence on record, so as to arrive at a finding as to whether the views of the trial Court are perverse or otherwise unsustainable. Even though the Appellate Court is entitled to consider, whether in arriving at a finding of fact, the trial Court has placed the burden of proof incorrectly or failed to take into consideration any admissible evidence and/or had taken into consideration the evidence brought on record contrary to law; the Appellate Court should not ordinarily set-aside a judgment of acquittal in a case where two views are possible, though the view of the Appellate Court may be the more probable one. The trial Court which has the benefit of watching the demeanour of the witnesses is the best judge of the credibility of the witnesses.

Every accused is presumed to be innocent unless his guilt is proved. The presumption of innocence is a human right and subject to the statutory exceptions, the said principle forms the basis of criminal jurisprudence of this Country. The Appellate Court has to bear in mind the presumption of innocence of the accused and further that the trial Court's acquittal bolsters the presumption of his innocence. Therefore, interference with the decision of the trial Court cannot be interfered with in a casual or cavalier manner where the other view is possible, the same should be avoided, unless there are good reasons for such interference. It is only in exceptional cases where there are compelling circumstances and the judgment under appeal is found to be perverse, that the Appellate Court can interfere with the order of acquittal.

A finding may be said to be perverse if it is against the weight of evidence, or if the finding so outrageously defies logic as to suffer from the vice of irrationality. The Hon'ble Supreme Court in State of Gujarat v. Kishanbhai and others, has categorically held that on the culmination of a criminal case in acquittal, the investigating/prosecuting official(s) concerned responsible for such acquittal must necessarily be identified. A finding needs to be recorded in each case, whether the lapse was innocent or blameworthy. Each erring officer must suffer the consequences of his lapse.

The investigation has been carried out in a slipshod manner and vital evidence has not been collected. Moreover the acquittal in present case is a consequence of shoddy investigation and slovenly assimilation of evidence and, therefore, the entire gamut of the case requires to be thoroughly probed and enquired into by the Home Department of the State. The State is directed to take appropriate departmental action against ASI Naseeb Singh and take it to its logical end as expeditiously as possible and preferably before 31st December, 2018. There is no merit in this appeal and the same is accordingly dismissed.

Relevant

State of Gujarat vs. Kishanbhai etc. MANU/SC/0004/2014

Tags : Investigation Acquittal Validity

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High Court of Rajasthan

Subhash Vs. State of Rajasthan

MANU/RH/0365/2018

31.05.2018

Narcotics

Muddamal in self same condition is required to be produced in Court and non-production thereof is fatal to prosecution

In instant case, charge sheet was filed against the Accused-Appellant for the offence under Section 8/15 Narcotic Drugs And Psychotropic Substances Act, 1985 (N.D.P.S. Act) before the trial Court. Present criminal appeal has been filed on behalf of Appellant against the judgment passed by the trial Court in Sessions Case whereby the Accused-Appellant was convicted for the offence punishable under Section 8/15 of N.D.P.S. Act and sentenced him for a period of twelve years rigorous imprisonment and imposed a fine of Rs. 1,20,000 and in default of payment of fine, further to undergo one years rigorous imprisonment.

In view of the statements of PW-13 and PW-14, it is apparent that prosecution did not exhibit seized muddamal in the same condition in which it was recovered. The bags which were produced in the Court do not bear proper chits or marks so as to connect or link the Accused-Appellant with the recovery of seized contraband effected from the Accused in the case in hand, thus, the Accused-Appellant cannot be convicted for the alleged recovery of 24 bags of poppy husk/straw.

The prosecution has failed to prove that, at the time of depositing the recovered articles in Malkhana, the same were re-sealed. Seizure Officer, Pravin Tak (PW-13) in his cross-examination clearly admitted that. It proves that, neither seized articles were properly deposited in Malkhana nor in view of above discussion, the recovered articles have been produced in the Court in the self same condition in which it was recovered. It is also fatal for the prosecution.

The burden of proving charges against the Accused is on the prosecution. When the prosecution has failed to place any material on record to prove that the Accused-Appellant had any knowledge about transportation of illegal poppy husk/straw by the driver in the said vehicle, it cannot be said that the Accused had any knowledge that the driver of the vehicle is transporting any illegal poppy husk/straw. The prosecution has also failed to follow the procedure prescribed under Section 52A of the N.D.P.S. Act so as to lead alternate evidence of the seized goods. There is no escape from the conclusion that, no evidence was given about the seized muddamal by exhibiting it in the self same condition in the Court.

The Hon'ble Supreme Court and present Court have time and again held that, while exhibiting the muddamal in the self same condition or proving the inventory and photographs prepared under Section 52A of the N.D.P.S. Act is indispensable so as to accept the evidence of seizure and held the Accused guilty of the charge under the N.D.P.S. Act. The failure to do so would deprive the Court from verifying the truthfulness of the alleged seizure. Further the legislature has provided an alternate mechanism to the investigating agency for preparing inventory/memorandum and photographs of the recovered articles under Section 52A of the N.D.P.S. Act which can be proved in the Court by way of admissible substantive evidence of the seized articles rather than adopting cumbersome procedure of the proceeding and exhibiting the Muddamal in the Court.

The prosecution has failed to undertake and prove compliance of this procedure as well. Hence, the impugned judgment of conviction is illegal and cannot be sustained. It is settled proposition of law that Muddamal in self same condition is required to be produced in Court and non-production thereof is fatal to the prosecution. The learned trial Court has misread the evidence and also overlooked the material available on record, therefore, the learned trial Court has erred in holding the Accused guilty for offence punishable under Section 8/15 of N.D.P.S. Act and has wrongly convicted and sentenced him The impugned judgment and sentence passed by the trial Court is quashed and set aside. Appeal allowed.

Tags : Conviction Validity Seized muddamal Non-production

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Supreme Court

Jayaswamy Vs. State of Karnataka

MANU/SC/0628/2018

01.06.2018

Criminal

Appellate Court on hearing appeal filed against judgment of acquittal will not overrule or otherwise disturb trial Court's acquittal, if there is no substantial and compelling reason for doing so

In present case, five Accused were tried for the offences punishable under Sections 326, 302, and 114 read with Section 34 of Indian Penal Code, 1860 (IPC). The trial Court acquitted all the accused, after evaluation of the material on record and after hearing both the parties. By the impugned judgment in Criminal Appeal, the High Court has reversed the judgment of acquittal passed by the trial Court insofar as the Appellant (accused No. 1) is concerned, and consequently convicted the Appellant for the offences under Sections 302 and 326 of IPC. The High Court further, confirmed the judgment and order of acquittal passed by the trial Court insofar as it relates to Accused Nos. 2 to 5.

It is by now well settled that, the Appellate Court hearing the appeal filed against the judgment and order of acquittal will not overrule or otherwise disturb the Trial Court's acquittal if the Appellate Court does not find substantial and compelling reasons for doing so. If the Trial Court's conclusion with regard to the facts is palpably wrong; if the Trial Court's decision was based on erroneous view of law; if the Trial Court's judgment is likely to result in grave miscarriage of justice; if the entire approach of the Trial Court in dealing with the evidence was patently illegal; if the Trial Court judgment was manifestly unjust and unreasonable; and if the Trial Court has ignored the evidence or misread the material evidence or has ignored material documents like dying declaration/report of the ballistic expert etc. the same may be construed as substantial and compelling reasons and the first appellate court may interfere in the order of acquittal. However, if the view taken by the Trial Court while acquitting the Accused is one of the possible views under the facts and circumstances of the case, the Appellate Court generally will not interfere with the order of acquittal particularly in the absence of the aforementioned factors.

The High Court, while convicting the Appellant has confirmed the judgment of acquittal passed in favour of the Accused Nos. 2 to 5. Their acquittal as confirmed by the High Court is not questioned by the State before present Court. Thus, the judgment of the High Court acquitting Accused Nos. 2 to 5 has attained finality. Therefore, it is clear that the Trial Court and the High Court have, on facts, not believed the case of the prosecution in respect of the assault by the Accused Nos. 2 and 3. The specific case of the prosecution is that, Accused Nos. 2 and 3 assaulted the deceased consequent to which they lost their lives. Absolutely, no material is found against the Appellant herein to convict him for the offences under Section 302 of IPC as he had not played any role in the death of the two deceased. In addition to the same, both the Courts have, on facts concluded that, there was no common intention on the part of the accused, in commission of crime.

It is not in dispute that the injured, Honnamma (PW. 23) sustained grievous injury as a result of assault by the Appellant. She was referred to a neurologist for an expert opinion as she had sustained an incised wound over the left parietal area. She had also sustained a fracture at the lower end of her right forearm. Since, the evidence of PW. 23 in respect of an overt act by the Appellant in injuring Honnamma is believable, the High Court was justified in convicting the Appellant for the offence under Section 326 of IPC, but was not justified in convicting the Appellant for the offence under Section 302 of IPC. Accordingly, the appeal is allowed in part.

The Appellant is acquitted of the offence punishable under Section 302 of IPC. Consequently, the judgment of the High Court convicting him for the said offence stands set aside. The judgment passed by the High Court convicting the Appellant for the offence under Section 326 of IPC and sentencing him for imprisonment of 7 years stands confirmed. Appellant has already undergone imprisonment for 11 years. The Appellant is also entitled to set-off the period of imprisonment already undergone with the sentence of seven years imposed. In view of the same, the Appellant shall be released forthwith, if he is not required in any other matter.

Tags : Conviction Validity Evidence

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High Court of Gauhati

Central Bank of India and Ors. Vs. Utpal Bordoloi

MANU/GH/0475/2018

01.06.2018

Service

Misappropriation of customers' money by a bank officer is a serious misconduct and does not warrant lenient view

In facts of present case, the Respondent was given compassionate appointment by the Appellant-Bank on the post of Clerk because his father died in harness. It was expected from the Respondent that, he will discharge his duties by maintaining highest standard of honesty and integrity, but sadly, he failed to do so. He not only indulged into misappropriation of money on two occasions, but also became a habitual absentee. He was, therefore, subjected to disciplinary proceedings. Initially, two charges were levelled against him, but under the modified charge-sheet, he was directed to respond to three charges in the disciplinary proceedings.

A Senior Manager of the Bank, who conducted the enquiry, in his report concluded that all the three charges were proved against the Respondent. Thereafter, the disciplinary authority also agreed with the findings of the Enquiry Officer. The disciplinary authority, then, having regard to the serious nature of charges, vide order, inflicted a penalty of Respondent's removal from service. Aggrieved, the Respondent filed a departmental appeal and it too was dismissed by the Appellate Authority vide order. The Respondent finally filed writ petition, essentially, on the ground that, penalty of his removal from service was shockingly disproportionate to the charges proved against him. Respondent in the writ petition did not seriously question the validity of the departmental enquiry. The learned Single Judge, by the impugned order, while holding that charges were proved against the Respondent in a valid enquiry, agreed with him that penalty of his removal from service was disproportionate and directed the disciplinary authority to impose a lesser punishment than that of removal from service. It is in this background, the Appellant-Bank had filed the present appeal.

The Respondent was given compassionate appointment on the death of his father by the Appellant-Bank. Therefore, while dealing with the money of depositors/customers, he was expected to take all possible steps to protect the interest of the bank and to discharge his duties with utmost integrity, honesty, devotion and intelligence. But, on two occasions, he misappropriated the money of depositors for his wrongful gain. On the first occasion, he misappropriated Rs. 10,000.00 and in the second occasion, he misappropriated Rs. 4988.00. It has also been proved vide Charge No. 3 that he was habitual in remaining unauthorisedly absent. The Respondent, thus, lost the confidence of the Appellant-Bank.

In Suresh Pathrella vs. Oriental Bank of Commerce, the Supreme Court has clearly held that, misappropriation of customers' money by a bank officer is a serious misconduct and it does not warrant lenient view. In that case, the Supreme Court also upheld the punishment of removal from service of a bank employee. In yet another case, Narendra Nath Bhalla vs. State of Uttar Pradesh, the Supreme Court, for a charge of misappropriation of money, has held the punishment of dismissal to be just and proper. Apparently, these aspects were not taken into consideration by the learned Single Judge. The punishment of removal from service of the Respondent was not disproportionate. Accordingly, the impugned order is set aside. The appeal is allowed.

Relevant

Suresh Pathrella vs. Oriental Bank of Commerce, MANU/SC/8561/2006
: (2006) 10 SCC 572, Narendra Nath Bhalla vs. State of Uttar Pradesh

Tags : Misappropriation Penalty Validity

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Supreme Court

Medical Council of India Vs. Vedantaa Institute of Academic Excellence Pvt. Ltd. and Ors.

MANU/SC/0627/2018

01.06.2018

Education

When an expert body certifies that, facilities in a medical College are inadequate, it is not for Courts to interfere with assessment, except for very cogent jurisdictional reasons

In facts of present case, Vedantaa Institute of Academic Excellence Pvt. Ltd. and Vedantaa Institute of Medical Sciences, Respondent Nos. 1 and 2 herein filed Writ Petition in the High Court seeking a direction to the Appellant to send its Experts' team for the purpose of verifying the compliance of the deficiencies pointed out earlier. They also prayed for a direction to the Appellant to forward its recommendation to the Central Government before 30th April, 2018. They sought a further direction to Respondent No. 3 herein, Union of India to consider the grant of renewal permission on the basis of the recommendations received from the Appellant. The High Court allowed the Writ Petition and directed the Medical Council of India to inspect Respondent No. 2, Medical College and submit a report to the Union of India before 30th April, 2018. Aggrieved thereby, the Appellant Council has filed the above appeal.

The interpretation of Regulation 8(3)(1)(a) of Establishment of Medical College Regulation, 1999 by the High Court is patently erroneous as the High Court did not take note of the proviso to Regulation 8(3)(1). Without a proper examination of the provision, the High Court fell in error in holding that, Regulation 8(3)(1) (a) would be applicable only to the Colleges seeking second renewal i.e. admissions of the third batch. Admissions upto the second renewal i.e. admissions to third batch would fall under Regulation 8(3)(1)(a). In other words, the proviso is not restricted only to second renewal cases. Even the first renewal is covered by proviso (a) to Regulation 8(3)(1) as the language used is "upto second renewal".

There is no conflict between Section 10-A (3) and (4) of the Indian Medical Council Act, 1956 on one hand and Regulation 8(3)(1)(a) on the other. Regulation 8(3)(1) (a) is complementary to Section 10-A of the Act. Fixing minimum standards which have to be fulfilled for the purpose of enabling a Medical College to seek fresh inspection would not be contrary to the scheme of Section 10-A. In fact, Regulation 8(3)(1) provides that, an opportunity shall be given to the Medical College to rectify the defects. But, the proviso contemplates that certain minimum standards are to be satisfied i.e. there should not be deficiency of teaching faculty and/or residents more than 30 per cent and/or bed occupancy should not be less than 50 per cent. This prescription of standards for availing an opportunity to seek re-inspection is not ultra vires either the Regulation or Section 10-A of the Act.

Conclusion reached by the High Court regarding the manner in which inspection was conducted is also not correct. Bed occupancy at 45.30 per cent on random verification was the claim of Respondent No. 1 and 2. However, the inspection report shows that, out of required minimum of 300 patients only 3 were available on 25th September, 2017. Present Court in Medical Council of India v. Kalinga Institute of Medical Sciences (KIMS) and Ors. has held that, medical education must be taken very seriously and when an expert body certifies that, the facilities in a Medical College are inadequate, it is not for the Courts to interfere with the assessment, except for very cogent jurisdictional reasons such as mala fides of the inspection team, ex facie perversity in the inspection, jurisdictional error on the part of the M.C.I., etc. The submission relating to the cyclone being a reason for the number of patients being less is not acceptable. The Resident Doctors are required to be in the hospital at all points of time. In view of the large scale deficiencies found in the inspection report and in view of Regulation 8(3)(1)(a), the Respondent No. 1 and 2 are not entitled to claim another inspection. The judgment of the High Court is set aside and the Appeal is allowed.

Relevant

Medical Council of India v. Kalinga Institute of Medical Sciences (KIMS) and Ors. MANU/SC/0523/2016
: (2016) 11 SCC 530

Tags : Deficiencies Inspection report Medical College

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