Oct 26, 201913 min
BLACK MONEY ACT:
Black Money Act – Charging tax on undisclosed asset located outside INDIA –
A detailed judgment held by Hon’ble Supreme Court on Black Money Act – Hon’ble
Supreme Court has explained the Scope & Object of the Act and how it shall
be applied properly – UNION OF INDIA AND ORS. Vs. GAUTAM KHAITAN – CRIMINAL
APPEAL No. 1563 of 2019 – 15th October 2019 – 3 Judge
Bench [https://thelaws.in/judgments/black-money-act-charging-tax-on-undisclosed-asset-located-outside-india/].
NON-MENTIONING:
It is well settled law that mere non-mentioning of an incorrect provision
is not fatal to the application if the power to pass such an order is available
with the court [https://thelaws.in/judgments/supreme-court/mere-non-mentioning-of-provision-is-not-fatal/] [1].
RESIDUAL DOUBT THEORY:
Further, another nascent
evolution in the theory of death sentencing can be distilled. This Court has
increasingly become cognizant of `residual doubt’ in many recent cases which
effectively create a higher standard of proof over and above the `beyond
reasonable doubt’ standard used at the stage of conviction, as a safeguard
against routine capital sentencing, keeping in mind the irreversibility of
death [https://thelaws.in/conviction/theory-of-residual-doubts-explained-by-supreme-court/] [2].
SECTION 313 CR.P.C – AUDI
ALTERAM PARTEM:
Section 313, Cr.P.C.
incorporates the principle of audi alteram partem. It provides an
opportunity to the accused for his defence by making him aware fully of the
prosecution allegations against him and to answer the same in support of his
innocence. The importance of the provision for a fair trial brooks no debate [https://thelaws.in/conviction/section-313-latest-perspective-audi-alteram-partem-theory/] .
SECTION 313 CR.P.C – PREJUDICE
– HOW TO PRESUME?
But equally there cannot be a
generalised presumption of prejudice to an accused merely by reason of any
omission or inadequate questions put to an accused thereunder [https://thelaws.in/conviction/section-313-latest-perspective-audi-alteram-partem-theory/] [3].
SECTION 313 Cr.P.C – HOW TO
PUT QUESTIONS?
Ultimately it will be a
question to be considered in the facts and circumstances of each case including
the nature of other evidence available, the kind of questions put to an
accused, considered with anything further that the accused may state in his
defence. In other words, there will have to be a cumulative balancing of
several factors. While the rights of an accused to a fair trial are undoubtedly
important, the rights of the victim and the society at large for correction of
deviant behaviour cannot be made subservient to the rights of an accused by
placing the latter at a pedestal higher than necessary for a fair trial [https://thelaws.in/conviction/section-313-latest-perspective-audi-alteram-partem-theory/] [4].
SECTION 313 – CANNOT RAISE AT
THE LATER STAGE:
Notwithstanding our
conclusions as aforesaid that there has in fact been no irregularity in
procedure under Section 313 Cr.P.C. much less any prejudice caused to the
appellants we shall now deal with the issue whether the appellants could at
this stage raise objections with regard to the same. In Sukha vs. State of
Rajasthan, 1956 SCR 288, it was observed as follows :-
“35……We have
recently decided that we will be slow to entertain question of prejudice when
details are not furnished; also the fact that the objection is not taken at an
early stage will be taken into account. There is not a hint of prejudice in the
petition filed by the appellants here in the High Court for leave to appeal to
this Court; nor was this considered a ground for complaint in the very lengthy
and argumentative petition for special leave filed in this Court. The only
complaint about prejudice was on the score that there was no proper examination
under Section 342 of the Criminal Procedure Code. We decline to allow this
matter to be raised” [https://thelaws.in/conviction/section-313-latest-perspective-audi-alteram-partem-theory/] [5].
Section 306 IPC – Call girl
case – ‘go and die’ not an instigation:
Similarly in the judgment in
the case of Sanju Alias Sanjay Singh Sengar vs. State of M.P, (2002) 5 SCC
371 when any quarrel which has taken place between husband and wife in
which husband has stated to have told the deceased “to go and die”,
this Court has held that the suicide committed two days thereafter was not
proximate to the quarrel though the deceased was named in the suicide note and
that the suicide was not the direct result of quarrel when the appellant used
abusive language and told the deceased to go and die. Judgments referred above
support the case of respondents, except stating that on 05.03.2004 when the
deceased went to the premises of first respondent, his parents who are
respondent Nos. 2 and 3 addressed her as a call-girl. At the same time by
applying the judgments referred above we are of the view that such material is
not sufficient to proceed with the trial by framing charge of offence under
Section 306/34 IPC. It is also clear from the material that there was no
goading or solicitation or insinuation by any of the respondents to the victim
to commit suicide [https://thelaws.in/judgments/whether-calling-a-call-girl-enough-to-frame-the-charge-u-s-306-ipc-when-instigation-inferred-explained-by-honble-s-c/] [6].
HOSTILE WITNESS – IMPACT ON
NOT DECLARING WITNESS AS HOSTILE:
According to the two
eye-witnesses PW-1 and 2, all the four fire arm shots hit the deceased on the
head. According to the doctor there were only two entry wounds. This also
belies the statement of the so called eye-witnesses according to whom the
accused gave four fire arm injuries on the head of the deceased. The doctor was
a prosecution witness and the prosecution cannot be heard to say that his
statement should not be relied upon. The prosecution did not pray that the
doctor be declared a hostile witness. Therefore, we have to go by the statement
of the medical expert [https://thelaws.in/judgments/effect-of-witness-not-declared-as-hostile-by-the-prosecution-honble-suprem-court-relied-on-the-witness/] [7].
SECTION 138 – CHEATING – LAND
AGREEMENT – CHEQUES AND DEMAND DRAFTS ISSUED – 9 CRORES – MATTER FOR TRIAL:
The second complaint filed by the appellant is
self-explanatory and he is forcefully made to sign the sale deed which were
executed subsequently for the lands covered by Survey Nos.115 and 117 of Ballur
Village. Mere filing of the suits for recovery of the money and complaint filed
under Section 138 of the N.I. Act by itself is no ground to quash the
proceedings in the complaints filed by the appellant herein. When cheating and
criminal conspiracy are alleged against the accused, for advancing a huge sum
of Rs.9 crores, it is a matter which is to be tried, but at the same time the
High Court has entered into the disputed area, at the stage of considering the
petitions filed under Section 482, Cr.P.C. It is fairly well settled that power
under Section 482 Cr.P.C. is to be exercised sparingly when the case is not
made out for the offences alleged on the reading of the complaint itself or in
cases where such complaint is filed by way of abuse of the process. Whether any
Schedules were appended to the agreement or not, a finding is required to be
recorded after full-fledged trial. Further, as the contract is for the purpose
of procuring the land, as such the same is of civil nature, as held by the High
Court, is also no ground for quashing. Though the contract is of civil nature,
if there is an element of cheating and fraud it is always open for a party in a
contract, to prosecute the other side for the offences alleged. Equally, mere
filing of a suit or complaint filed under Section 138 of the N.I. Act, 1881 by
itself is no ground to quash the proceedings. While considering the petition
under Section 482 of Cr.P.C [https://thelaws.in/judgments/mere-filing-of-a-suit-or-complaint-filed-under-section-138-of-the-n-i-act-1881-by-itself-is-no-ground-to-quash-the-proceedings-honble-apex-court/] [8].
QUASH – SECTION 138 N.I ACT:
It is fairly well settled that power under Section
482 Cr.P.C. is to be exercised sparingly when the case is not made out for the
offences alleged on the reading of the complaint itself or in cases where such
complaint is filed by way of abuse of the process. Whether any Schedules were
appended to the agreement or not, a finding is required to be recorded after
full-fledged trial. Further, as the contract is for the purpose of procuring
the land, as such the same is of civil nature, as held by the High Court, is
also no ground for quashing. Though the contract is of civil nature, if there
is an element of cheating and fraud it is always open for a party in a
contract, to prosecute the other side for the offences alleged. Equally, mere
filing of a suit or complaint filed under Section 138 of the N.I. Act, 1881 by
itself is no ground to quash the proceedings. While considering the petition
under Section 482 of Cr.P.C [https://thelaws.in/judgments/mere-filing-of-a-suit-or-complaint-filed-under-section-138-of-the-n-i-act-1881-by-itself-is-no-ground-to-quash-the-proceedings-honble-apex-court/] [9].
Section 138 – accused convicted and died – appeal
by legal heirs:
The legal heirs, in such a case, are neither liable
to pay the fine or to undergo imprisonment. However, they have a right to
challenge the conviction of their 1 predecessor only for the purpose that he
was not guilty of any offence. We have, therefore, allowed the application
filed by the legal heirs to prosecute this appeal [https://thelaws.in/judgments/accused-to-prove-how-the-cheque-leaves-were-entered-into-the-hands-of-the-complainant/] [10].
Section 138 – accused did not
prove how cheque leaves were with the complainant:
Proceedings under Section 138 of the Act are
quasi-criminal proceedings. The principles, which apply to acquittal in other
criminal cases, cannot apply to these cases. As far as the present case is
concerned, in addition to three reasons, given by the High Court, we are of the
view that the original appellant has not even explained how the leaves of the
cheque entered into the hands of the complainant [https://thelaws.in/judgments/accused-to-prove-how-the-cheque-leaves-were-entered-into-the-hands-of-the-complainant/] [11].
Section 138 – complainant has to prove that the
cheque was issued by the accused:
A dishonour of cheque carries a statutory
presumption of consideration. The holder of cheque in due course is required to
prove that the cheque was issued by the accused and that when the same
presented, it was not honoured. Since there is a statutory presumption of
consideration, the burden is on the accused to rebut the presumption that the
cheque was issued not for any debt or other liability [https://thelaws.in/judgments/presumptions-on-138-cases-explained-by-apex-court-complainant-to-prove-that-the-cheque-was-issued-by-the-accused/] [12].
Section 138 – rebuttal – accused has to led
evidence – cross-examination not sufficient:
Learned counsel appearing for the respondent also
referred to M. S. Narayana Menon and K. Prakashan vs. P. K. Surenderan, (2008)
1 SCC 258 that if two views are possible, the appellate court shall not reverse
a judgment of acquittal only because another view is possible to be taken.
Learned counsel also relies upon a judgment reported as John K. Abraham vs.
Simon C. Abraham, (2014) 2 SCC 236 that mere fact that the statutory notice was
not replied cannot prejudice to the case of the respondent. We do not find any
merit in the arguments raised by the learned counsel for the respondent. In
fact, the findings recorded by the courts below are total misreading of the
statutory provisions more so when the respondent has not led any evidence to
rebut the presumption of consideration. Cross-examination on the prosecution
witness is not sufficient to rebut the presumption of consideration. Mere
discrepancies in the statement in respect of the cartons, trays or the packing
material or the rate charged will not rebut the statutory presumption which is
proved by CW3 Prem Chand [https://thelaws.in/judgments/presumptions-on-138-cases-explained-by-apex-court-complainant-to-prove-that-the-cheque-was-issued-by-the-accused/] [13].
MADRAS HIGH COURT
FAILURE TO FRAME A PARTICULAR CHARGE – SECTION 464
CR.P.C
Though there is no specific charge under Section
474 IPC, the substance of the imputation extracted above, clearly encompasses
the ingredients of Section 474 IPC. Therefore, the failure to refer to Section
474 IPC in the charge, cannot have the effect of vitiating the prosecution
case, especially in the light of Section 464 Cr.P.C[14].
Section 311-A – voice samples – Trial Court has powers:
Thus, the apex Court has now empowered the
Magistrate with the power to order a person to give a sample of his voice for the
purpose of investigation of a crime. The respondent to ensure that the text,
which the petitioners would be called upon to read out for the purpose of
drawing their voice samples will not have sentences from the inculpatory text.
Similarly, permitting the text to contain words drawn from the disputed
conversation would meet the legitimate concern of the investigating authorities
for making a fair comparison [https://thelaws.in/judgments/high-court/whether-without-any-specific-provision-of-law-directing-the-accused-to-give-voice-samples-for-spectrograph-test-is-proper-yes-says-madras-high-court/] [15] .
CIRCUMSTANTIAL EVIDENCE – APPRECIATION:
It is well-settled that in cases where the
prosecution relies on circumstantial evidence to establish its case, such
circumstances should be duly proved and the chain of circumstances so proved
should be complete. This means that the chain formed must unerringly point
towards the guilt of the accused and not leave any missing links for the
accused to escape from the clutches of law [https://thelaws.in/judgments/supreme-court-explained-appreciate-of-evidence-in-last-seen-theory-criminal-conspiracy-and-65-b-certificate/] [16].
CONSPIRACY – HOW TO APPRECIATE?
As mentioned supra, three essential elements must
be shown – a criminal object, a plan or scheme embodying means to accomplish
that object, and an agreement between two or more persons to cooperate for the
accomplishment of such object. Admittedly, the incorporation of Section 10 to
the Indian Evidence Act, 1872, suggests that proof of a criminal conspiracy by
direct evidence is not easy to get. While we acknowledge this constraint, we do
not find any discussion by the High Court on what circumstances indicate the
existence of the essential elements of a criminal conspiracy in the instant
case [https://thelaws.in/judgments/supreme-court-explained-appreciate-of-evidence-in-last-seen-theory-criminal-conspiracy-and-65-b-certificate/] [17].
SECTION 65-B CERTIFICATE – OBJECTION AT THE EARLIER
STAGE:
In this case a specific objection has been raised
with regard to certificate based on section 65-B Evidence Act. Rejecting such
objection Hon’ble Supreme Court held that such an objection for the first time
at this appellate court cannot be sustained and further Hon’ble Supreme Court relied
on such electronic records to decide the case[https://thelaws.in/judgments/supreme-court-explained-appreciate-of-evidence-in-last-seen-theory-criminal-conspiracy-and-65-b-certificate/] [18].
CONSENT – PRESUMPTION:
Section 114-A of the Indian Evidence Act, 1872
deals with the presumption as to absence of consent in certain prosecution for
rape. A reading of the aforesaid Section makes it clear that, where sexual
intercourse by the accused is proved and the question is whether it was without
the consent of the woman alleged to have been raped, and such woman states in
her evidence before the Court that she did not consent, the court shall presume
that she did not consent [https://thelaws.in/judgments/presumption-as-to-consent-s-c-explained/] [19].
SECTION 84 IPC – INGREDIENTS:
Thus, it is crystal clear that to bring a crime
under the exception of Section 84 I.P.C., the essential ingredients of Section
84 I.P.C. to be fulfilled, are (a) The act must be done by a person who is
incapable of knowing; (i) The nature of the act, or (ii) That what he is doing
is either wrong or contrary to law; (b) Such incapacity must arise by reason of
unsoundness of mind and (c) Such incapacity must exist at the time of doing the
act [https://thelaws.in/trending/section-84-ipc-mental-illness-defence-schizophrenia-appeal-allowed-madras-high-court-madurai-bench-guidelines-issued/] .
SECTION 84 IPC – OBJECT & PRESUMPTION:
Further, the object of Section 84 of the Indian
Penal Code is that the fundamental principle of criminal law is that mens rea
(guilty mind) is an essential element in every offence and no crime can be said
to have been committed if the mind of the person doing the act is not guilty.
But before applying the said principle of law the things to be borne in mind,
are, (a) Every type of insanity is not legal insanity; (b) The court shall presume
the absence of such insanity; (c) The burden of prove of legal insanity is on
the accused, though is not as heavy as on the prosecution to prove an offence;
(d) The court must consider whether the accused suffer from legal insanity at
the time when the offence was committed; (e) In reaching such a conclusion, the
circumstances, which preceded, attended or followed the crime, are relevant
consideration, and (f) The prosecution in discharging this burden in the face
of the plea of legal insanity has merely to prove the basis fact and rely upon
the normal presumption of law that everyone knows the law on the natural
consequence of his act [https://thelaws.in/trending/section-84-ipc-mental-illness-defence-schizophrenia-appeal-allowed-madras-high-court-madurai-bench-guidelines-issued/] .
DELAY IN LODGING FIR – WHEN NOT FATAL – HUMAN
CONDUCT?
In the above referred judgment, even though the
Hon’ble Supreme Court had considered the delay aspect in lodgment of FIR in
respect of criminal offences arising out of a motor accident, the same is
applicable to other serious offences like the one on hand. Moreover, it is the
natural conduct of the witnesses to have taken the deceased first to the
hospital and after he was declared to have been brought dead, they had gone to
the police station for giving a complaint and therefore there is no delay in
lodging the FIR [https://thelaws.in/judgments/quarrel-is-different-from-fight-fight-explained-case-on-hand-does-not-come-within-the-purview-of-exception-1-to-section-300-ipc-accused-deserves-no-leniency-m/] [20].
[1]Pruthvirajsinh Nodhubha Jadeja (D) by LRS. Vs.
ayeshkumar Chhakaddas Shah & Ors – [Civil Appeal No. 10521 of 2013] –
dated: October 04, 2019.
[2]Criminal Appeal No. 1523-1524 of 2019 arising out of
Special Leave Petition (CRL.) Nos. 9254- 9255/2019 CRL. M.P. Nos. 5704-5705 of
2017 dated: 03.10.2019 – Justice
ROHINTON FALI NARIMAN, R. SUBHASH REDDY & SURYA KANT, J
[3]Fainul Khan vs. State of Jharkhand – Criminal Appeal No(S). 937 Of 2011
With Criminal Appeal No(S). 938 Of 2011 And Criminal Appeal No(S). 939 Of 2011 –
Decided On : 04-10-2019.
[4]Fainul Khan vs. State of Jharkhand – Criminal Appeal No(S). 937 Of 2011
With Criminal Appeal No(S). 938 Of 2011 And Criminal Appeal No(S). 939 Of 2011 –
Decided On : 04-10-2019.
[5]Fainul Khan vs. State of Jharkhand – Criminal Appeal No(S). 937 Of 2011
With Criminal Appeal No(S). 938 Of 2011 And Criminal Appeal No(S). 939 Of 2011 –
Decided On : 04-10-2019.
[6]STATE OF WEST BENGAL vs. INDRAJIT KUNDU AND OTHERS – Criminal Appeal
No. 2181 of 2009 – Decided on : 18-10-2019
[7]PREM SINGH vs SUKHDEV SINGH AND OTHERS – Criminal Appeal No. 1560 and
1561 of 2019 – Decided on : 17-10-2019
[8] Dr. Lakshman
vs. The State of Karnataka & Ors. Etc – CRIMINAL APPEAL NOS. 1573-1575 OF
2019 – 17th October 2019.
[9] Dr.
Lakshman vs. The State of Karnataka & Ors. Etc – CRIMINAL APPEAL NOS. 1573-1575 OF
2019 – 17th October 2019.
[10]M. Abbas Haji Vs. T.N. Channakeshava – Criminal Appeal No.664 of 2012 – September 19, 2019 – Justice
DEEPAK GUPTA & Justice ANIRUDDHA BOSE JJ.
[11]M. Abbas Haji Vs. T.N. Channakeshava – Criminal Appeal No.664 of 2012 – September 19, 2019 – Justice
DEEPAK GUPTA & Justice ANIRUDDHA BOSE JJ.
[12]UTTAM RAM vs. DEVINDER SINGH HUDAN AND ANOTHER – Criminal
Appeal No. 1545 of 2019 (Arising Out of SLP(Crl) No. 3452 of 2019) – 17-10-2019
– Justice L. Nageswara Rao and Justice Hemant Gupta, JJ.
[13]UTTAM RAM vs. DEVINDER SINGH HUDAN AND ANOTHER – Criminal
Appeal No. 1545 of 2019 (Arising Out of SLP(Crl) No. 3452 of 2019) – 17-10-2019
– Justice L. Nageswara Rao and Justice Hemant Gupta, JJ.
[14]Venkat vs State rep. by Inspector of Police, Prevention of Counterfeit
Currency Wing, C.B.C.I.D., V-5 Thirumangalam Police Station, Chennai – Criminal
Appeal Nos.17, 18, 22 and 23 of 201 – 04.10.2019.
[15]Kumaresan
vs The State, Rep.by Inspector of Police, Central Bureau of Investigation,
Anti-Corruption Branch, Chennai-600 006 – Crl.O.P.Nos.2580 & 2510 of 2019
and 21653 of 2018 – Pronounced on : 17.10.2019.
[16]CRIMINAL
APPEAL NO. 1889 OF 2010 Rajender @ Rajesh @ Raju vs State (NCT of Delhi) –
Justice Mohan M. Shantanagoudar & Justice Ajay Rastogi – 24.10.2019.
[17]CRIMINAL
APPEAL NO. 1889 OF 2010 Rajender @ Rajesh @ Raju vs State (NCT of Delhi) –
Justice Mohan M. Shantanagoudar & Justice Ajay Rastogi – 24.10.2019.
[18]CRIMINAL
APPEAL NO. 1889 OF 2010 Rajender @ Rajesh @ Raju vs State (NCT of Delhi) –
Justice Mohan M. Shantanagoudar & Justice Ajay Rastogi – 24.10.2019.
[19] Miss XYZ vs State of Gujarat & Anr – Crl Apl. No.1619 OF 2019 – dt: 25.10.2019 – 3 judge bench.
[20] Dharmalingam vs State Represented by, The Inspector of Police, Maniyachi Police Station, Thoothukudi District – Criminal Appeal (MD) No.398 of 2017 – 21.10.2019.