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WEEKLY DIGEST-NOV(21-27)- 2019

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 KHAITANCRIMINAL APPEAL No. 1563 of 201915th 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.

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