Vijayalaxmi Shetty vs Kochu Shetty. Criminal Appeal 1141/2010 decided on 11 November 2020. Justice H.P. Sandesh.

Judgement Link: http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/348103/1/CRLA1141-10-11-11-2020.pdf

Relevant Paragraphs: 68. The principles laid down by the Apex Court in the judgment in the case of Subramanian Swamy (supra) in respect of reputation is concerned, is aptly applicable to the case on hand. The judgment of the Apex Court in the case of Sukhwant Singh (supra) is clear that the reputation of a  person is his valuable asset, and is a facet of his right under Article 21 of the Constitution of India as held in the case of Deepak Bajaj v. State of Maharashtra reported in (2008) 16 SCC 14. Making any allegation of unchastity against a woman amounts to bringing down the reputation of the womanhood, as held by the Madras High Court, Bombay High Court, Allahabad High Court and Calcutta High Court.

69 & 70. This Court would like to refer to the judgment of the Apex Court in the case of Mohd. Abdulla khan. The Apex Court in paragraph No.10 of the said judgment referring to provisions of Section 499 of IPC analyzed that to constitute an offence of defamation it requires a person to make some imputation concerning any other person. imputation must be made either with intention, knowledge, or having a reason to believe that such an imputation will harm the reputation of a person against whom the imputation is made. It is also observed that imputation could be by words, either spoken or written or by making signs or visible representation and imputation could be either made or published. It is also important to note that in the case on hand, though the same is not published in any paper, the accused made the imputation in the said letters addressing the same to the complainant and the Bank wherein the complainant was working. Hence, the very finding of the Appellate Court that there was no material before the Court for publication cannot be accepted.

It is clear that imputation could be either made or published and it is not necessary that there must be a publication and if anything is spoken or written or by making signs with intention, knowledge, having a reason to believe that such an imputation will harm the reputation of the person, that itself is enough to come to the conclusion that the same is made with an intention and knowledge to disrepute the reputation of a person. The Apex Court held that the essence of publication in the context of Section 499 of IPC is the communication of defamatory imputation to persons other than the persons against whom the imputation is made by referring the judgment in the cases of Khima Nand v. Emperor reported in 1936 SCC Online All 307 and Amar Singh v. K.S. Badalia reported in 1964 SCC Online Pat 186. Hence, it is clear that the  Appellate Court has committed an error in reversing the finding of the Trial Court in coming to the conclusion that there is no publication. The very approach of the Appellate Court is erroneous.

73. This Court has already referred the judgment of the Apex Court in the case of Mohd. Abdulla khan (supra) and particularly referred to paragraph No.10 and has observed that in order to invoke Section 499 of IPC, it is not necessary that it should be published, but if it is gone to the knowledge of any other person other than the complainant, that itself is enough to invoke Section 499 of IPC. Hence, the Appellate Court has committed an error in acquitting the accused for the offence punishable under Section 499 of IPC. Hence, the judgment of the Trial Court has to be restored.

also see other paragraphs in the judgment.

Compiled by S. Basavaraj, Advocate, Daksha Legal.

Abudl Shukoor vs Samad Pasha and another. Writ Petition 204679/2018 decided on 18 October 2019.

Judgment Link: http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/305024/1/WP204679-18-18-10-2019.pdf

Relevant Paragraphs: 8. Insofar as the legal contention urged by the petitioner is concerned, the issue is no more res integra in view of the authoritative pronouncement of the Hon’ble Supreme Court in Rasiklal and Manickchand Dhariwal and Others vs. M.S.S.Food  Products (2012) 2 SCC 196 wherein a contention was advanced before the Hon’ble Supreme Court that Order IX Rule 7 of CPC do not take away the right of the defendants to participate in further proceedings of the case if the defendants appear on subsequent dates before pronouncement of the judgment. The said plea was advanced based on the decisions of the various High Courts, but the Hon’ble Supreme Court in paragraph Nos.34 and 35 of the judgment negated the contentions and held as under:

’34. The contention, at the first blush, appears to be attractive but has no substance at all. In the first place, once the hearing of the suit is concluded; and the suit is closed for judgment, Order IX Rule 7 of the Code has no application at all. The very language of Order IX Rule 7 makes this clear. This provision pre- supposes the suit having been adjourned for hearing. The courts, time out of number, have said that adjournment for the purposes of pronouncing judgment is no adjournment of the ‘hearing of the suit’. On March  17,2005, the trial Court in the present case did four things namely, (i)closed the evidence of the Plaintiff as was requested by the plaintiff; (ii) ordered the suit to proceed ex-parte as Defendants failed to appear on that date; (iii) heard the arguments of the Advocate for the Plaintiff; and (iv) kept the matter for pronouncement of judgment on March 28, 2005. In view of the above, Order IX Rule 7 of the Code has no application at all and it is for this reason that the application made by the defendants under this provision was rejected by the trial Court.

35. Secondly, once the suit is closed for pronouncement of judgment, there is no question of further proceedings in the suit. Merely, because the defendants continued to make application after application and the trial Court heard those applications, it cannot be said that such appearance by the Defendants is covered by the expression “appeared on the day fixed for his appearance” occurring in Order IX Rule 7 of the Code and thereby entitling them to address the Court on the merits of the case.  The judgment of Bombay High Court  in Radhabai Bhaskar Sakharam AIR (1922) Bom 345 on which reliance has been placed by the learned senior counsel for the appellants, does not support the legal position canvassed by him. Rather in Radhabai Bhaskar Sakharam AIR (1922) Bom 345, the Division Bench of the Bombay High Court held that if a party did not appear before the suit was heard, then he had no right to be heard. This is clear from the following statement in the judgment:….….Until a suit is actually called on, a party is entitled to appear and defend. It may be that he is guilty of delay and if that is the case he may be mulcted in costs. But if he does not appear before the suit is heard, then he has no right to be heard….”

9. Even in this decision the observations made by the Hon’ble Supreme Court in Arjun Singh’s case has been reiterated in paragraph No.41 and the proposition laid down therein has been reproduced as under:

41. ….On the terms of Order IX, Rule 7 if the Defendant appears on such adjourned date and satisfies the Court by showing good cause for his non-appearance on the previous day or days he might have the earlier proceedings recalled- “set the clock back” and have the suit heard in his presence. On the other hand, he might  fail in showing good cause. Even in such a case he  is not penalized in the sense of being forbidden to take part in the further proceedings of the suit or whatever might still remain of the trial, only he cannot claim to be relegated to the position that he occupied at the commencement of the trial. Thus every contingency which is likely to happen in the trial vis-à-vis the non- appearance of the defendant at the hearing of a suit has been provided for and Order IX Rule 7 and Order IX, Rule 13 between them exhaust the whole gamut of situations that might arise during the course of the trial. If, thus, provision has been made for every contingency, it stands to reason that there is no scope for the invocation of the inherent powers of the Court to make an order necessary for the ends of justice. Mr. Pathak, however, strenuously contended that a case of the sort now on hand where a Defendant appeared after the conclusion of the hearing but before the pronouncing of the judgment had not been provided for. We consider that the suggestion that there is such a stage is, on the scheme of the Code, wholly unrealistic. In the present context when once the hearing starts, the Code contemplates only two stages in the trial of the suit: (1) where the hearing is adjourned or (2) where the hearing is completed. Where the hearing is completed the parties have no further rights or privileges in the matter and it is only for the convenience of the Court that Order XX, Rule 1 permits judgment to be delivered after an interval after the hearing is completed. It would, therefore, follow that after the stage contemplated by Order IX, Rule 7 is passed the next stage is only the passing of a decree which on the terms of Order IX, Rule 6 the Court is competent to pass. And then follows the remedy of the party to have that decree set aside by application under Order IX, Rule 13. There is thus no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to afford to the party the remedy of getting orders passed on the lines of Order IX Rule 7……

In the light of the above settled proposition, the first contention urged by the petitioner is liable to be rejected.

Compiled by S.Basavaraj, Advocate, Daksha Legal.

Navid vs The State of Karnataka. Criminal Petition 201277/2019 decided on 16 October 2019.

Judgment Link: http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/302987/1/CRLP201277-19-16-10-2019.pdf

Relevant Paragraphs: 6. The learned counsel appearing for the petitioner submits that the petitioner is ready and willing to execute personal bond in a sum of Rs.2,00,000/- with two solvent sureties. However, to furnish a local surety is not feasible since  the  petitioner  is   from  Gulbarga.   

7. The Hon’ble Apex Court in the case of Dataram Singh vs. State of Uttar  Pradesh  and  another  reported  in (2018) ACR 178 has held that conditions for grant of  bail ought not to be so strict as to be incapable of compliance thereby, making grant of bail illusory. The Hon’ble Apex Court at paragraph-7 of the said judgment has observed as under:

“7. However, we should not be understood to mean that bail should be granted in every case. The grant or refusal of bail is entirely within the discretion of the judge hearing the matter and though that discretion is unfettered, it must be exercised judiciously and in a humane manner and compassionately. Also, conditions for  the  grant of bail ought not to be so strict as to be incapable of compliance, thereby making the grant of bail illusory.”

8. The learned Sessions Judge has already directed the petitioner to execute personal bond in a sum of Rs.2,00,000/- with two solvent sureties and also imposed other conditions. In view of the same, directing the petitioner to furnish a local surety may not be necessary in the facts and circumstances of the case.

This is one of the earliest and most celebrated judgments from the Karnataka High Court. Even after 55 years, the ratio laid down holds the field like an oak tree. Of course, this judgment is from one of the finest judges of the Karnataka High Court, Justice G.K.Govind Bhat. In just 11 paragraphs, the entire law on injunctions is discussed and guidelines laid down. The beauty of the judgment lies in its simplicity. Almost every civil lawyer has referred to this judgment during his practice.

Lakshminarasimhiah And Ors. vs Yalakki Gowda on 5 January, 1965. Equivalent citations: AIR 1965 Kant 310, AIR 1965 Mys 310, (1965) 1 MysLJ

Full Text of the Judgment. –

Justice G.K.Govind Bhat ORDER (1) This revision petition arises out of an interlocutory application by the respondent made under Rule 2 of order 39 to the Code of Civil Procedure, in a suit for a permanent injunction brought by him to restrain the deferring with the plaintiff’s possession of the suit lands. The trial court issued an ex parte order of ad interim injunction; but when the defendants entered appearance and moved for vacating the said order, it was dissolved. Against the said order, the plaintiff preferred an appeal to the court of the Civil Judge at Bangalore, who allowed the appeal and granted the temporary injunction as prayed for. Aggrieved by the said order, the defendants have preferred the above said Civil Revision Petition.

(2) In order to appreciate the contention raised in this petition, it is necessary to set out the material facts which are not in dispute. The petitioners were the tenants of the suit lands which belonged to one Ramachandra Rao, who, on 24-4-1959 conveyed the said lands to the plaintiff. Thereafter, the plaintiff filed T.C. No. 10 of 1960-61 before the Tahsildar of Magadi, for eviction of the defendants, under the Mysore Tenancy Act. In the said proceedings the case of the plaintiff was that the defendants were tenants on the land, and that he was entitled to seek their eviction. The defendant did not dispute the plaintiff’s case that they were the tenants.

When the said proceedings for eviction of the defendants were pending before the Tahasildar, the Mysore Tenants (Temporary Protection from Eviction), Act, 1961 (Mysore Act 37 of 1961), hereinafter called the Act, came into force on December 31, 1961. The Act, by Section 4, provided for stay of all suits, proceedings in execution of decrees or orders and other proceedings for the eviction of tenants from the lands held by them as tenants or in which a claim for such eviction is involved in any Civil or Revenue Courts during the period the Act remains in force. Section 3 imposed a total prohibition against the eviction of tenants during the period the Act remains in force from the land held by a tenant. Thus, there is an absolute bar imposed by the Act against the eviction of tenants during the pendency of the Act.

(3) By virtue of Section 4 of the Act, T.C. No. 10 of 1960-61 referred to above was stayed and the Tahasildar had no jurisdiction to proceed with the enquiry and make any order. The Tahasildar of Magadi, however, in open defiance of the Act, proceeded with the enquiry and made an order on April 21, 1962, directing the eviction of the defendants. It must be mentioned that the Tahasildar gave a finding that the defendants were not the tenants, though that was not the case of either party. The Tahasildar had no jurisdiction to order eviction even on his finding that the defendants were not the tenants. On April 27, 1962, within a week of the making of the order of eviction, the Tahasildar purported to execute his order through his Revenue Inspector. A Mahazar was prepared by the Revenue Inspector to the effect that possession has been given to the plaintiff. Against the said order of eviction, the defendants preferred an appeal before the Assistant Commissioner, Ramanagar Sub-Division, who allowed the appeal and set aside the order made by the Tahasildar, holding that the defendants were the tenants and that the proceeding before the Tahasildar had been stayed by the Act before the order of eviction was made.

(4) When the appeal preferred by the defendants was pending before the Assistant Commissioner, the plaintiff brought the suit on June 12, 1962 for a permanent injunction against the defendants, alleging that he had secured possession of the suit lands pursuant to the order of eviction made by the Tahasildar and that the defendants were interfering with his lawful possession. The defendants, after entering appearance, filed their written statement contending, inter alia, that their possession had not been disturbed by the alleged delivery effected by the Revenue Inspector, that the alleged delivery was a sham or paper delivery, and that in fact, the defendants were in actual possession cultivating the suit lands as tenants. By the time the Munsiff had heard and disposed of the application for temporary injunction, the Assistant Commissioner had set aside the order of eviction made by the Tahasildar, in execution of which the plaintiff purported to obtain delivery.

The Munsiff was not satisfied that there was a prima facie case made out in favour of the plaintiff for grant of the injunction and, therefore, he dissolved the ex parte order of interim injunction. The Additional Civil Judge, who heard the appeal, did not disagree with the conclusion of the Munsiff that the defendants were the tenants of the suit lands, that the order of eviction made by the Tahasildar was one made without jurisdiction, and that the said order had been set aside on appeal, but from certain observations made by the Assistant Commissioner in his order, the Civil Judge came to the conclusion that there was prima facie evidence that the plaintiff had obtained delivery of possession pursuant to the order of eviction passed by the Tahasildar, and therefore, entitled to a temporary injunction to protect his possession.

(5) It was urged by the learned counsel for the petitioners, that the Additional Civil Judge was not right in interfering with the discretion exercised by the Munsiff when there was no error calling for interference, and this is a case where the appellate court has exercised its jurisdiction with material irregularity, calling for interference in revision. But it was contended by the learned counsel for the plaintiff-respondent, that the delivery Mahazar prepared by the Revenue Inspector is prima facie evidence of the factum of possession having been given to the plaintiff; although the proceedings before the Tahasildar were without jurisdiction and that order had been set aside on appeal, until possession is restored to the defendants by due process of law, the plaintiff is entitled to have his possession protected.

(6) An appeal lies from the order of a trial Judge granting or refusing to grant an interim injunction, but what the court of appeal has to consider is simply whether or not the Judge who dealt with the matter has properly exercised the discretion which he undoubtedly possesses. The question for the decision of the Civil Judge, who heard the appeal, was whether the Munsiff did not properly exercise his judicial discretion. The appellate Judge is not to approach the case as if he were the trial Judge. A good percentage of suits in this State are for the relief of permanent injunction, and in every one of such suits, there is an application for interim injunction; trial Judges in the majority of the cases, as a matter of course, grant orders of temporary injunctions and cases of refusal are rare. Those orders granting or refusing the interim relief are taken up in appeals and the appellate courts go into the merits of the contentions in the suit as if they are trying the issue as to which of the parties is in possession. The question which they consider is not whether or not the trial Judge has properly exercised his judicial discretion.

(7) The granting or refusing of injunctions is a matter resting in the sound discretion with the trial court and consequently no injunction will be granted whenever it will operate oppressively, or inequitably, or contrary to the real justice of the case. In exercising the discretionary power, the courts should be guided by the following guiding principles. There is no power which is more delicate, which requires greater caution, deliberation, and sound discretion, or is more dangerous in a doubtful case, than the issuing an injunction. It is the strong arm of equity, that never ought to be extended unless to cases of great injury, where courts of law cannot afford an adequate or commensurate remedy in damages. The right must be clear, the injury impending or threatened, so as to be averted only by the protecting preventive process of injunction. But that will not be awarded in doubtful cases, or new ones not coming within well-established principles; for if it issues erroneously, an irreparable injury is inflicted for which there can be no redress, it being the act of a court, not of the party who prays for it. It will be refused till the courts are satisfied that the case before them is of a right about to be destroyed, irreparably injured or great and lasting injury about to be done by an illegal act. In such a case the court owes it to its suitors and its own principles to administer the only remedy which the law allows to prevent the commission of such act. The discretionary power must be exercised with extreme caution and applied only in very clear cases; otherwise, instead of becoming an instrument to promote the public as well as private welfare, it may become a means of an extensive and perhaps an irreparable injustice.” (1) Story’s Equity Jurisprudence (14th Edn.) Vol. II, pages 639-640.

The rule regarding the caution to be observed by courts and the necessarily for a clear cause for granting the relief of injunction has been succinctly stated in the American Jurisprudence as follows:–

“Caution in Granting; Necessity of Clear Case: The extraordinary character of the Injunctive remedy and the danger that its use in improper cases may result in serious loss or inconvenience to an innocent party require that the power to issue it should not be lightly indulged in, but should be exercised sparingly and cautiously only after thoughtful deliberation, and with a full conviction on the part of the court of its urgent necessity. In other words, the relief should be awarded only in clear cases, reasonably free from doubt, and, when necessary, to prevent great and irreparable injury. The Court should therefore be guided by the fact that the burden of proof rests upon the complaint to establish the material allegations entitling him to relief.” (2) 28 American Jurisprudence page 217.

Besides the above, there are certain equitable principles also which govern the Courts in granting or withholding of the relief of injunction. One of the main considerations is the fairness of good conduct of the party invoking the aid of the Court. The Court denies the relief to a suitor who is himself guilty of misconduct in respect of the matter in controversy. It is well-known maxim of equity that “He who comes into equity must come with clean hands,” or as otherwise expressed, “He that hath committed inequity shall not have equity”. The wrong conduct of the plaintiff in the particular matter or transaction with respect to which he seeks injunctive relief precludes him from obtaining such relief. Injunction will not be granted in aid of a possession secured by stratagem or trick.

(8) The question for determination is whether the trial court did not properly exercise its discretion in accordance with the above principles so as to merit interference by the appellate court. The undisputed facts, as started above, are that the defendants are the tenants of the land, that the proceedings before the Tahasildar instituted by the plaintiff for their eviction was stayed by the Act long before the eviction order came to be passed, that the Tahasildar had no jurisdiction to order eviction even on his finding that the defendants were not the tenants, that the Revenue Inspector who executed the order also had no jurisdiction to give delivery by reason of the prohibition imposed by the Act and further, the order of eviction had been set aside by the Assistant Commissioner on appeal. The foundation of the plaintiff’s case is the delivery mahazar prepared by the Revenue Inspector; that mahazar was prepared without notice to the defendants and behind their back.

At the time of the alleged delivery, which was in April, there could not be any standing crops on the land; disputes concerning possession started only at the commencement of the cultivation season, when the defendants proceeded to cultivate the lands. The contention of defendants in the suit was that the delivery mahazar was a sham delivery and that they were not dispossessed. The trial judge was not satisfied that the defendants had been dispossessed. On these facts, he refused to grant the temporary injunction prayed for. The Civil Judge, who heard the appeal, did not differ from the fact found by the trial judge, except that he inferred that the defendants had admitted delivery of possession to the plaintiff by the Revenue Inspector. That inference was not justified, in my opinion, from a perusal of the order of the Assistant Commissioner. It is clearly stated in the said order that the Assistant Commissioner was not concerned with the facts of the execution; having so stated, he made the certain irrelevant observation in answer to certain arguments apparently advanced before him.

When the Assistant Commissioner was not concerned with the facts of the execution, there was no question of his giving any finding on the question of his giving any finding there was no question of his giving any finding on the question whether the defendants had been dispossessed or not. Even assuming that the plaintiff had managed to dispossess the defendants, since the means by which he is alleged to have obtained possession is by illegal means, he is not entitled to the aid of the court to protect his possession. By granting the injunction, what the Civil Judge did was to lend the aid to the court to proceed possession secured in proceedings continued without jurisdiction. The plaintiff is not a person who has come to court with clean hands, and no court of equity shall aid such a person. Therefore, I am clearly of the view that the Civil Judge was not justified in interfering with the order of the Munsiff, who has exercised his discretion properly.

(9) The conduct of the Tahasildar of Magadi calls for serious comment; I am rather surprised that the Assistant Commissioner who had occasion to hear the appeal against his order did not deem it fit to take against the said Tahasildar. The Tahasildar cannot pretend that he was ignorant of the provisions of the Act when it had been published in the official Gazette about four months prior to the making of the order of eviction. When it was not the case of either party, the Tahasildar gave a finding that the defendants were not the tenants thinking that he could thereby circumvent the Act; but even on the assumption that the defendants were not the tenants, he had no jurisdiction under the Mysore Tenancy Act to order eviction of persons who are not tenants. To forestall any order to stay that may be obtained by preferring an appeal, he saw that his order was executed with undue haste before the order of stay was communicated.

From the facts and circumstances of the case, it is not unreasonable to infer that the Tahasildar has misused his official position to help the plaintiff to evict the defendants which could not have been done under the law in force. What was the consideration which made the Tahasildar to go out of his way to help the plaintiff? That is a matter for enquiry by the appropriate authorities. If officials of the Government entrusted with the duty of enforcement of laws defy the laws with a view to help individuals out of dishonest with a view to help individuals out of dishonest motives and the higher authorities do not take any action against them, there will be no rule of law and the administration will forfeit the confidence of the public. It is for the Government to enquire into the conduct of the concerned Tahasildar and decide what is the appropriate action to take.

(10) For the above reasons, this revision petition is allowed, the order of the Civil Judge is set aside, and the order of the Munsiff is restored. The respondent will pay the costs of the petitioners in this court as also in the courts below.

(11) Let a copy of this order be communicated to the Chief Secretary to the Government of Mysore, for the information of the Government.

 (12) Revision allowed.

Compiled by S. Basavaraj, Advocate, Daksha Legal.

ಭಾರತೀಯ ದ೦ಡ ಪ್ರಕ್ರಿಯೆ ಸೆಕ್ಷನ್ ೧೨೫ ರ ಪ್ರಕಾರ ಜೀವನಾ೦ಶಕ್ಕೆ ಹೊರಡಿಸಿದ ಆದೇಶವನ್ನು ಸೆಕ್ಷನ್ ೧೨೮ ರ ಪ್ರಕಾರ ಜಾರಿಗೊಳಿಸುವ ಸಮಯದಲ್ಲಿ ಜೀವನಾ೦ಶದ ಆದೇಶವನ್ನೇ ಬದಲಾಯಿಸಿದ ಆದೇಶವನ್ನು ಕರ್ನಾಟಕ ಉಚ್ಚ ನ್ಯಾಯಾಲಯ ರದ್ದುಗೊಳಿಸಿದೆ. ಜೀವನಾ೦ಶದ ಆದೇಶವನ್ನು ಜಾರಿಗೊಳಿಸುವ ನ್ಯಾಯಾಲಯವು, ಜೀವನಾ೦ಶದ ಆದೇಶವನ್ನು ಬದಲಾಯಿಸುವ ಅದಿಕಾರವನ್ನು ಹೊ೦ದಿರುವುದಿಲ್ಲ ಎ೦ದು ಕರ್ನಾಟಕ ಉಚ್ಚ ನ್ಯಾಯಾಲಯ ಹೇಳಿದೆ.

Huligewwa and another vs Hanumanthappa. Criminal Petition 102043/2017 decided on 5 November 2020.

Judgment Link: http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/347694/1/CRLP102043-17-05-11-2020.pdf

HELD: The role of the trial Court under Section 128 Cr.P.C. is very limited and confined only for enforcement of the order of maintenance. Modification can be done only by filing an application under Section 127(2) Cr.P.C.

Relevant Paragraphs: 9. “128. Enforcement of order of maintenance. A copy of the order of maintenance or interim maintenance and expenses of proceeding, as the case may be shall be given without payment to the person in whose favour it is made, or to his guardian, if any, or to the person to whom the allowance for the maintenance or the allowance for the interim maintenance and expenses of proceeding, as the case may be is to be paid; and such order may be enforced by any Magistrate in any place where the person against whom it is made may be, on such Magistrate being satisfied as to the identity of the parties and the non-payment of the allowance or as the case may be expenses, due.” A reading of the above Section clearly go to show that, the role of the trial Court under Section 128 Cr.P.C. is very limited and confined only for enforcement of the order of maintenance. If at all it is brought to the notice of the trial Court that the order of granting maintenance under Section 125 Cr.P.C. requires any revisit, in such an event, a necessary application or petition may required to be filed under the relevant provision of law, may be even under Section 127(2) Cr.P.C. also.

10. The petitioners in Criminal Misc.No.67/2011 had only sought for arrears of maintenance by filing a petition under Section 128 Cr.P.C. In such a proceeding, the trial Court ought not  to have proceeded to exercise its power under Section 127(2) Cr.P.C, in the absence of any specific application or request made invoking the said provision of law and in the absence of any opportunity being given to the petitioner, who would be aggrieved by passing any order under Section 127(2) Cr.P.C. Whereas, in the instant case, without there being any specific request made under Section 127(2) Cr.P.C. for cancellation of the order of maintenance and also without giving any opportunity to the petitioners and hearing them as to why the order of maintenance, which was in force in their favour, be cancelled, straight away the trial Court has proceeded to cancel the maintenance showing that it has invoked its power under Section 127(2) Cr.P.C.

11.Thus, the procedure adopted by the trial Court being detrimental to the interest of the parties and unknown to law and set aside

Compiled by S. Basavaraj, Advocate, Daksha Legal.

Huligewwa and another vs Hanumanthappa. Criminal Petition 102043/2017 decided on 5 November 2020.

Judgment Link: http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/347694/1/CRLP102043-17-05-11-2020.pdf

HELD: The role of the trial Court under Section 128 Cr.P.C. is very limited and confined only for enforcement of the order of maintenance. Modification can be done only by filing an application under Section 127(2) Cr.P.C.

Relevant Paragraphs: 9. “128. Enforcement of order of maintenance. A copy of the order of maintenance or interim maintenance and expenses of proceeding, as the case may be shall be given without payment to the person in whose favour it is made, or to his guardian, if any, or to the person to whom the allowance for the maintenance or the allowance for the interim maintenance and expenses of proceeding, as the case may be is to be paid; and such order may be enforced by any Magistrate in any place where the person against whom it is made may be, on such Magistrate being satisfied as to the identity of the parties and the non-payment of the allowance or as the case may be expenses, due.” A reading of the above Section clearly go to show that, the role of the trial Court under Section 128 Cr.P.C. is very limited and confined only for enforcement of the order of maintenance. If at all it is brought to the notice of the trial Court that the order of granting maintenance under Section 125 Cr.P.C. requires any revisit, in such an event, a necessary application or petition may required to be filed under the relevant provision of law, may be even under Section 127(2) Cr.P.C. also.

10. The petitioners in Criminal Misc.No.67/2011 had only sought for arrears of maintenance by filing a petition under Section 128 Cr.P.C. In such a proceeding, the trial Court ought not  to have proceeded to exercise its power under Section 127(2) Cr.P.C, in the absence of any specific application or request made invoking the said provision of law and in the absence of any opportunity being given to the petitioner, who would be aggrieved by passing any order under Section 127(2) Cr.P.C. Whereas, in the instant case, without there being any specific request made under Section 127(2) Cr.P.C. for cancellation of the order of maintenance and also without giving any opportunity to the petitioners and hearing them as to why the order of maintenance, which was in force in their favour, be cancelled, straight away the trial Court has proceeded to cancel the maintenance showing that it has invoked its power under Section 127(2) Cr.P.C.

11.Thus, the procedure adopted by the trial Court being detrimental to the interest of the parties and unknown to law and set aside

Compiled by S. Basavaraj, Advocate, Daksha Legal.

Para 22. When disputed questions of facts are involved which need to be adjudicated after the parties adduce evidence, the complaint under Section 138 of the NI Act ought not to have been quashed by the High Court by taking recourse to Section 482

Full Judgment: Rajeshbhai Muljibhai Patel v. State of Gujarat, (2020) 3 SCC 794  

R. BANUMATHI, J.— Leave granted. These appeals arise out of the impugned judgment dated 14-12-20181 passed by the High Court of Gujarat at Ahmedabad dismissing Criminal Miscellaneous Application No. 2735 of 2017 thereby declining to quash the FIR No. I-194/2016. By the same order, the High Court has allowed2 Criminal Miscellaneous Application No. 24588 of 2017 and quashed the criminal case in CC No. 367 of 2016 filed by Appellant 3 Hashmukhbhai Ravjibhai Patel against accused Yogeshbhai Muljibhai Patel under Section 138 of the NI Act.

2. Brief facts which led to the filing of these appeals are as under: Appellant 1 Rajeshbhai Muljibhai Patel is the real brother of Yogeshbhai Muljibhai Patel who is the accused in CC No. 367 of 2016 filed under Section 138 of the NI Act by Appellant 3 Hashmukhbhai Ravjibhai Patel. Both Appellant 1 Rajeshbhai and his brother Yogeshbhai are stated to be residents of United Kingdom. In this appeal, Appellant 1 Rajeshbhai is represented through his power-of-attorney holder Appellant 2 Vipulkumar Hasmukhbhai Patel. Respondent Yogeshbhai is represented through his power-of-attorney holder another respondent Mahendrakumar Javaharbhai Patel.

3. On 8-12-2015, Appellant 3 Hasmukhbhai Ravjibhai Patel filed a criminal case being CC No. 367 of 2016 against accused Yogeshbhai under Section 138 of the NI Act. The father of Appellant 1 Rajeshbhai and Yogeshbhai had agricultural lands bearing Block/Survey Nos. 534, 536/1/A, 536/1/B, 538, 539, 540, 541/1, 542 and 543 situated at Village Fofaliya, Ta. Dabhoi, District Vadodara. In 2010, in order to sell his father’s land, Yogeshbhai called up Appellant 3 who is also the maternal uncle of Yogeshbhai and Rajeshbhai. Since Appellant 3 was also planning of buying some agricultural land from the surplus funds which he had received from the sale of his agricultural land, he accepted the proposal of Yogeshbhai. Yogeshbhai who is residing in United Kingdom showed his intention to come to India for executing the sale deed of his lands in favour of Appellant 3 and asked to pay the money to Respondent 2 Mahendrakumar Javaharbhai Patel.

4. Accordingly, Appellant 3 gave Rs 30,00,000 each on four days viz. 21-8-2010, 22-8-2010, 26-8-2010 and 28-8-2010 as part payment, the total amounting to Rs 1,20,00,000 to Respondent 2 Mahendrakumar, who issued receipts for the said payments of amount for and on behalf of accused Yogeshbhai.

5. In 2015, accused Yogeshbhai came to India and arranged meeting with Appellant 3. In the meeting, Yogeshbhai informed Appellant 3 that he has already executed a registered Sale Deed No. 1229/2013 dated 16-7-2013 in favour of one M/s Brentwood Industries India Pvt. Ltd. thereby, selling the above referred lands to that company which was agreed to be sold to Appellant 3.

6. Knowing all these facts, Appellant 3 demanded his legal outstanding debt from Yogeshbhai immediately i.e. total of Rs 1,20,00,000 and Yogeshbhai promised to refund the amount by issuing four cheques of Rs 30,00,000 each in favour of Appellant 3. Accordingly, accused Yogeshbhai issued cheques bearing Nos. 8108 and 8109 of NRO Account No. 08540107512 on 12-10-2015 and cheque Nos. 20801 and 20802 of NRE Account No. 085401000566 on 30-10-2015. As per Appellant 3, at the time of issuance of cheques, Yogeshbhai gave assurance of the clearance of above cheques.

7. Two cheques bearing Nos. 8108 and 8109 dated 12-10-2015 of NRO Account No. 08540107512 amounting to Rs 30,00,000 each were dishonoured on the same day i.e. on 12-10-2015 on the ground of “Payment stopped by the Drawer”. The third cheque was of NRE Account No. 085401000566 with cheque bearing No. 20801 dated 30-10-2015 amounting to Rs 30,00,000 and the fourth cheque was also of NRE Account No. 085401000566 with cheque bearing No. 20802 dated 30-10-2015 amounting to Rs 30,00,000. When those two cheques drawn on NRE Account No. 085401000566 were presented before the Bank on the same day i.e. on 30-10-2015, those cheques were also returned on the same day with the endorsement “Payment stopped by the Drawer”. Thereafter, Appellant 3 sent a legal notice to Yogeshbhai on 17-11-2015 demanding payment of money which notice was delivered on 23-11-2015.

8. Insofar as dishonour of cheques bearing Nos. 8108 and 8109 dated 12-10-2015 of NRO Account No. 08540107512, they were returned unpaid on 12-10-2015. The complainant issued notice on 17-11-2015 and therefore, claim qua the two Cheques Nos. 8108 and 8109 are barred by limitation under the provisions of the Negotiable Instruments Act. The complaint therefore, pertains only for Cheques Nos. 20801 and 20802 of NRE Account No. 085401000566 which were returned unpaid on 30-10-2015. Complaint under Section 138 of the NI Act against Yogeshbhai was taken on file on 5-2-2016 in CC No. 367 of 2016. On 6-9-2016, the Court of 5th Additional Civil Judge & JMFC, Bharuch issued a bailable warrant for production of accused Yogeshbhai.

9. Appellant 3 Hasmukhbhai has filed Special Summary Suit No. 105 of 2015 before the Additional Chief Judicial Magistrate, Vadodara for recovery of Rs 1,20,00,000 under Order 37 CPC. Summary Suit No. 105 of 2015 filed by Appellant 3 was based on the four receipts issued by Respondent 2 Mahendrakumar. The Court in that case has issued summons for appearance against Yogeshbhai and Mahendrakumar which has been served on 1-11-2015. According to the respondents, they came to know about those four receipts only after they have been served with summons in the said suit.

10. Alleging that the appellants have forged and fabricated the four receipts, Respondent 2 Mahendrakumar has filed the complaint for cheating and forgery against the appellants. Based on the said complaint, FIR No. I-194/2016 was registered against the appellants under Sections 406, 420, 465, 467, 468, 471 and 114 IPC. Respondent 2 Mahendrakumar has alleged that the appellants joined together and prepared fabricated receipts of Rs 1,20,00,000 bearing forged signature of Respondent 2 and produced these forged receipts as true.

11. In the FIR, it was averred that Yogeshbhai, who is residing in United Kingdom had executed a power of attorney dated 14-3-2013 in favour of Mahendrakumar for administration of his lands. On the basis of this power of attorney, Mahendrakumar executed an agreement to sale in favour of one Jigneshbhai Dhanesh Chandra Shah on 16-4-2013. Thereafter, Yogeshbhai came from London and executed a registered Sale Deed No. 1229/2013 dated 16-7-2013 in favour of M/s Brentwood Industries India Pvt. Ltd. for Rs 6,16,44,000. In the sale deed, the agreement to sale holder has signed as confirming party. In consideration of the sale deed, the landowner was to receive Rs 6,16,44,000 and the confirming party-Jigneshbhai was to receive Rs 1,13,94,000. Yogeshbhai is the elder brother of Appellant 1 Rajeshbhai. Appellant 1 had filed a Special Civil Suit No. 284 of 2013 before the Court of Principal Civil Judge, Bharuch claiming his share in the said land sold by Yogeshbhai. In the said suit, Yogeshbhai, his mother Kanchanben, Respondent 2 Mahendrakumar and Jigneshbhai were arraigned as defendants. The said suit was compromised between Appellant 1 and Yogeshbhai in London and Yogeshbhai was to pay Rs 90,00,000 to Rajeshbhai Appellant 1. Appellant 1 agreed to issue NOC and promised that his power-of-attorney holder Appellant 2 Vipulkumar Hasmukhbhai Patel will issue NOC. Accordingly, Yogeshbhai had come from London and his power-of-attorney holder Appellant 2 Vipulkumar had executed NOC letter in presence of Notary H.J. Zala on 23-9-2015. There was various correspondence between the parties and the company M/s Brentwood Industries India Pvt. Ltd. regarding payment of said Rs 90,00,000.

12. Appellants 1 to 3 filed Criminal Miscellaneous Application No. 2735 of 2017 before the High Court under Section 482 CrPC for quashing of FIR No. I-194/2016. Yogeshbhai who is the accused in the criminal case being CC No. 367 of 2016 also filed Criminal Miscellaneous Application No. 24588 of 2017 for quashing of cheque case filed against him under Section 138 of the NI Act. Yogeshbhai claimed that he has given the cheques to Appellant 3 Hasmukhbhai who approached him requesting for help to purchase land. Yogeshbhai alleged that the appellants have forged the receipts issued by Respondent 2 Mahendrakumar. In this regard, Yogeshbhai placed reliance upon the report of the handwriting expert, Directorate of Forensic Science dated 15-12-2016 as per which, the disputed signatures of Mahendrakumar Javaharbhai on the receipts were not written by him i.e. Respondent 2 Mahendrakumar Javaharbhai.

13. Vide the impugned judgment dated 14-12-20181, the High Court dismissed Criminal Miscellaneous Application No. 2735 of 2017 and declined to quash FIR No. I-194/2016. The High Court held that on the basis of four receipts allegedly issued by Mahendrakumar, the third appellant Hasmukhbhai has filed Summary Suit No. 105 of 2015 for recovery of Rs 1,20,00,000. The High Court referred to the handwriting expert’s opinion who has opined that the signatures found in the receipts do not tally with the signature of Respondent 2 Mahendrakumar. The High Court held that looking into the allegations and the facts, prima facie case of forgery and cheating are made out against the appellants and accordingly, declined to quash FIR No. I-194/2016 and dismissed Criminal Miscellaneous Application No. 2735 of 2017.

14. On the basis of the order passed in Rajeshbhai Muljibhai Patel v. State of Gujarat1, Criminal Miscellaneous Application No. 24588 of 2017 filed by Yogeshbhai was allowed2 and the criminal case in CC No. 367 of 2016 filed by Appellant 3 Hasmukhbhai under Section 138 of the NI Act was quashed. The High Court held that based on the alleged forged receipts, criminal case has been filed under Section 138 of the NI Act and the cheque case cannot be proceeded with and accordingly, quashed the criminal case in CC No. 367 of 2016 filed under Section 138 of the NI Act. Being aggrieved, the appellants have filed these appeals.

15. Mr D.N. Parikh, learned counsel for the appellants, has submitted that the High Court has failed to appreciate that the FIR lodged by Respondent 2 Mahendrakumar is false and frivolous as the same subject-matter is pending consideration in Summary Suit No. 105 of 2015. It was submitted that at least two cases viz. Special Summary Suit No. 105 of 2015 and criminal case in CC No. 367 of 2016 filed under Section 138 of the NI Act are pending before the competent court and while so, the criminal case could not have been registered on the four receipts which are the subject-matter of the pending litigations between the parties. It was further submitted that in Summary Suit No. 105 of 2015, Issue 5 framed by the Court is “whether the defendant proved that the plaintiff has fabricated the forged signature illegally and created forged receipts” and the FSL report-report of the handwriting expert is filed in the said suit and the civil court is yet to determine the issue as to the genuineness of the receipts. The learned counsel submitted that the High Court has failed to appreciate that the opinion of the handwriting expert is relevant evidence, but it is not a conclusive evidence and Section 73 of the Evidence Act empowers the Court to compare the admitted and disputed writings for the purpose of forming Court’s opinion. It was contended that when the genuineness of four receipts is an issue in the civil suit and the dispute is of civil nature, the continuation of the criminal case is an abuse of process of the court and FIR No. I-194/2016 is liable to be quashed. It was also contended that the High Court erred in quashing the cheque case filed under Section 138 of the NI Act and the High Court did not keep in view that issuance of cheques by Yogeshbhai from his NRE account has been admitted.

16. Refuting the above contentions, Ms Aishwarya Bhati, learned Senior Counsel for the respondents, has submitted that Appellant 3 Hashmukhbhai is the maternal uncle of Yogeshbhai and relying upon the words of Appellant 3 and his son Appellant 2 Vipulkumar, Yogeshbhai issued two cheques bearing Nos. 8108 and 8109 for Rs 30,00,000 each from his NRO account and after issuing the cheques, Yogeshbhai realised that there were no funds in the said account and he asked Appellant 3 to return the above cheques and collect new cheques of another account. It was submitted that thereafter Yogeshbhai issued new cheques of NRE account bearing Nos. 20801 and 20802 of Rs 30,00,000 each and at that time, Appellant 3 had told that he had not brought the old cheques with him and will return the old cheques in a day or two but never returned the cheques. The learned Senior Counsel submitted that Yogeshbhai got suspicious and on making enquiry, he found that Appellants 2 and 3 were not intending to purchase any lands and thus, he has instructed the Bank to stop payment for all the four cheques. The learned Senior Counsel further submitted that the appellants made four forged receipts of Rs 30,00,000 each by forging the signatures of Respondent 2 Mahendrakumar and the handwriting expert opined that four receipts relied upon by Appellant 3 Hasmukhbhai have not been signed by Respondent 2 Mahendrakumar and on the basis of FSL report, FIR No. I-194/2016 has been registered under Sections 406, 420, 465, 467, 468, 471 and 114 of the Penal Code, 1860. It was submitted that since there is a prima facie case of forgery and cheating made out against the appellants, the High Court rightly declined to quash the FIR and the impugned order warrants no interference.

17. We have carefully considered the submissions and perused the impugned order and other materials on record.

18. The issue relates to the alleged forgery of four receipts dated 21-8-2010, 22-8-2010, 26-8-2010 and 28-8-2010 each for a sum of Rs 30,00,000 totalling to Rs 1,20,00,000 issued by Respondent 2 Mahendrakumar. For the recovery of the amount of Rs 1,20,00,000, Appellant 3 Hasmukhbhai filed Special Summary Suit No. 105 of 2015 in October 2015. After receiving summons in Summary Suit No. 105 of 2015, Respondent 2 Mahendrakumar entered appearance and filed application seeking leave to defend and the said application was allowed on 19-4-2016. On application filed by Appellant 3 Hasmukhbhai in Summary Suit No. 105 of 2015, four receipts were sent to forensic science laboratory for obtaining the opinion of handwriting expert. The handwriting expert’s report was received in the Court on 15-12-2016 to the effect that all the four receipts were not signed by Respondent 2 Mahendrakumar. It was thereafter on the complaint filed by Respondent 2, FIR No. I-194/2016 dated 28-12-2016 was registered against the appellants for the offences punishable under Sections 406, 420, 465, 467, 468, 471 and 114 IPC.

19. In CC No. 367 of 2016, case of Appellant 3 Hasmukhbhai is that Yogeshbhai issued four cheques each for a sum of Rs 30,00,000, details of which are as under:

On presentation, the above cheques were dishonoured on the ground “Payment stopped by the Drawer”. After issuing the legal notice, Appellant 3 Hasmukhbhai filed criminal case in CC No. 367 of 2016 on 8-12-2015 pertaining to two cheques bearing Nos. 20801 and 20802. It was only thereafter, Respondent 2 Mahendrakumar had filed the criminal complaint dated 20-3-2016 and also filed another criminal complaint dated 14-4-2016 against Appellant 1 Rajeshbhai and Appellant 2 Vipulkumar. Since the police had not registered the FIR, Respondent 2 filed SCRAs Nos. 5945 and 6349 of 2016 before the High Court for seeking directions for lodging FIR. The High Court vide orders dated 4-10-20163 and 6-9-20164 disposed of those petitions directing the police to investigate into the matter.

20. Be that as it may, in Summary Suit No. 105 of 2015, leave to defend was granted to Respondent 2 Mahendrakumar on 19-4-2016. On the application filed by Appellant 3 in the said Summary Suit No. 105 of 2015, four receipts filed in the suit were sent to the handwriting expert. The handwriting expert has opined that signatures in all the four receipts did not tally with the sample signatures which were of Respondent 2 Mahendrakumar. It was only thereafter, complaint was filed by Mahendrakumar, based on which, FIR No. I-194/2016 was registered on 28-12-2016 against the appellants for the offences punishable under Sections 406, 420, 465, 467, 468, 471 and 114 IPC. As rightly contended by the learned counsel for the appellants, in Summary Suit No. 105 of 2015, Issue 5 has been framed by the Court “whether the defendant proved that the plaintiff has fabricated the forged signature illegally and created forged receipts”. When the issue as to the genuineness of the receipts is pending consideration in the civil suit, in our view, the FIR ought not to have been allowed to continue as it would prejudice the interest of the parties and the stand taken by them in the civil suit.

21. It is also to be pointed out that in terms of Section 45 of the Evidence Act, the opinion of handwriting expert is a relevant piece of evidence; but it is not a conclusive evidence. It is always open to Appellant 3-plaintiff to adduce appropriate evidence to disprove the opinion of the handwriting expert. That apart, Section 73 of the Evidence Act empowers the court to compare the admitted and disputed writings for the purpose of forming its own opinion. Based on the sole opinion of the handwriting expert, the FIR ought not to have been registered. Continuation of FIR No. I-194/2016, in our view, would amount to abuse of the process of court and the petition filed by the appellants under Section 482 CrPC in Criminal Miscellaneous Application No. 2735 of 2017 to quash FIR No. I-194/2016 is to be allowed.

22. The High Court, in our view, erred in quashing the criminal case in CC No. 367 of 2016 filed by Appellant 3 Hasmukhbhai under Section 138 of the NI Act. As pointed out earlier, Yogeshbhai has admitted the issuance of cheques. When once the issuance of cheque is admitted/established, the presumption would arise under Section 139 of the NI Act in favour of the holder of cheque that is the complainant Appellant 3. The nature of presumptions under Section 139 of the NI Act and Section 118(a) of the Evidence Act are rebuttable. Yogeshbhai has of course, raised the defence that there is no legally enforceable debt and he issued the cheques to help Appellant 3 Hasmukhbhai for purchase of lands. The burden lies upon the accused to rebut the presumption by adducing evidence. The High Court did not keep in view that until the accused discharges his burden, the presumption under Section 139 of the NI Act will continue to remain. It is for Yogeshbhai to adduce evidence to rebut the statutory presumption. When disputed questions of facts are involved which need to be adjudicated after the parties adduce evidence, the complaint under Section 138 of the NI Act ought not to have been quashed by the High Court by taking recourse to Section 482 CrPC. Though, the Court has the power to quash the criminal complaint filed under Section 138 of the NI Act on the legal issues like limitation, etc. criminal complaint filed under Section 138 of the NI Act against Yogeshbhai ought not to have been quashed merely on the ground that there are inter se disputes between Appellant 3 and Respondent 2. Without keeping in view the statutory presumption raised under Section 139 of the NI Act, the High Court, in our view, committed a serious error in quashing the criminal complaint in CC No. 367 of 2016 filed under Section 138 of the NI Act.

23. In the result, the impugned order is set aside and these appeals are allowed. Criminal Miscellaneous Application No. 2735 of 2017 filed by the appellants is allowed and FIR No. I-194/2016 is quashed. Criminal Miscellaneous Application No. 24588 of 2017 filed by Yogeshbhai Muljibhai Patel stands dismissed. Case filed by Appellant 3 Hasmukhbhai Ravjibhai Patel under Section 138 of the NI Act — CC No. 367 of 2016 stands restored. The 5th Additional Civil Judge & JMFC, Bharuch is directed to proceed with the case in CC No. 367 of 2016 filed under Section 138 of the NI Act and afford sufficient opportunity to both the parties and dispose of the same in accordance with law. Summary Suit No. 105 of 2015 shall be proceeded in accordance with law without being influenced by any of the views expressed by the High Court in the impugned order.

Arising out of SLPs (Crl.) Nos. 142-43 of 2019. Arising from the Judgment and Order in Rajeshbhai Muljibhai Patel v. State of Gujarat, 2018 SCC OnLine Guj 4722 (Gujarat High Court, R/Criminal Miscellaneous Application No. 2735 of 2017, dt. 14-12-2018) and Yogeshbhai Muljibhai Patel v. State of Gujarat, 2018 SCC OnLine Guj 4771 (Gujarat High Court, R/Criminal Miscellaneous Application No. 24588 of 2017, dt. 14-12-2018)

1.Rajeshbhai Muljibhai Patel v. State of Gujarat, 2018 SCC OnLine Guj 4722

2.Yogeshbhai Muljibhai Patel v. State of Gujarat, 2018 SCC OnLine Guj 4771

3. Mahendrabhai Jawaharbhai Patel v. State of Gujarat, 2016 SCC OnLine Guj 4802

4. Yogesh Muljibhai Patel v. State of Gujarat, 2016 SCC OnLine Guj 3254

Compiled by S. Basavaraj, Advocate, Daksha Legal

P. Lakshmi Reddy v. L. Lakshmi Reddy AIR 1957 SC 314. “It is well settled that in order to establish adverse possession of one co-heir as against the other, it is not enough to show that one out of them is in sole possession and enjoyment of the profits. Ouster of the non-possessing co-heir by the co-heir in possession who claims his possession to be adverse, should be made out. The possession of co-heir is considered, in law as possession of all the co-heirs. When one co-heir is found to be in possession of the properties it is presumed to be on the basis of joint title. The co-heir in possession cannot render his possession adverse to the other co-heir, not in possession, merely by any secret hostile animus on his own part in derogation of the other co-heirs’ title. It is settled rule of law that as being co-heirs there must be evidence of open assertion of hostile title, coupled with exclusive possession and enjoyment by one of them to the knowledge of the other so as to constitute ouster. The burden of making out ouster is on the person claiming to displace the lawful title of a co-heir by his adverse possession.”

Syed Shah Ghulam Ghouse Mohiuddin v. Syed Shah Ahmed Mohiuddin Kamisul Quadri, (1971) 1 SCC 597. Possession by one co-owner is not by itself adverse to other co-owners. On the contrary, possession by one co-owner is presumed to be the possession of all the co-owners unless it is established that the possession of the co-owner is in denial of title of co-owners and the possession is in hostility to co-owners by exclusion of them. In the present case there is no evidence to support this conclusion. Ouster is an unequivocal act of assertion of title. There has to be open denial of title to the parties who are entitled to it by excluding and ousting them.

Vidya Devi v. Prem Prakash, (1995) 4 SCC 496.27. From the underlined portion extracted above, it will be seen that in order that the possession of co-owner may be adverse to others, it is necessary that there should be ouster or something equivalent to it. This was also the observation of the Supreme Court in P. Lakshmi Reddy case5 which has since been followed in Mohd. Zainulabudeen v. Sayed Ahmed Mohideen. 28. ‘Ouster’ does not mean actual driving out of the co-sharer from the property. It will, however, not be complete unless it is coupled with all other ingredients required to constitute adverse possession. Broadly speaking, three elements are necessary for establishing the plea of ouster in the case of co-owner. They are (i) declaration of hostile animus, (ii) long and uninterrupted possession of the person pleading ouster, and (iii) exercise of right of exclusive ownership openly and to the knowledge of other co-owner. Thus, a co-owner, can under law, claim title by adverse possession against another co-owner who can, of course, file appropriate suit including suit for joint possession within time prescribed by law.

Md. Mohammad Ali v. Jagadish Kalita, (2004) 1 SCC 271. 31. In Vidya Devi v. Prem Prakash3 this Court upon referring to a large number of decisions observed: (SCC p. 505, paras 27-28) “27. … It will be seen that in order that the possession of co-owner may be adverse to others, it is necessary that there should be ouster or something equivalent to it. This was also the observation of the Supreme Court in P. Lakshmi Reddy case4 which has since been followed in Mohd. Zainulabudeen v. Sayed Ahmed Mohideen. 28. ‘Ouster’ does not mean actual driving out of the co-sharer from the property. It will, however, not be complete unless it is coupled with all other ingredients required to constitute adverse possession. Broadly speaking, three elements are necessary for establishing the plea of ouster in the case of co-owner. They are (i) declaration of hostile animus, (ii) long and uninterrupted possession of the person pleading ouster, and (iii) exercise of right of exclusive ownership openly and to the knowledge of other co-owner. Thus, a co-owner, can under law, claim title by adverse possession against another co-owner who can, of course, file appropriate suit including suit for joint possession within time prescribed by law.”

Govindammal v. R. Perumal Chettiar, (2006) 11 SCC 600. 10. In Mohaideen Abdul Kadir v. Mohd. Mahaideen Umma their Lordships held that no hard-and-fast rule can be laid down. But the following relevant factors may be taken into consideration: (i) exclusive possession and perception of profits for well over the period prescribed by the law of limitation; (ii) dealings by the party in possession treating the properties as exclusively belonging to him; (iii) the means of the excluded co-sharer of knowing that his title has been denied by the co-owner in possession. There may be cases, where, owing to long lapse of time, it may not be possible for the co-owner in possession to adduce evidence as to when the ouster commenced and how it was brought home to the knowledge of the excluded co-owner. In such a case the law will presume ouster as an explanation of the long peaceful possession of the co-owner in possession. In order to maintain the person in such possession the law presumes a lawful origin of the possession. Therefore, no hard-and-fast rule can be laid down from which it can be inferred that any co-sharer has ousted his co-sharer. That will depend upon facts of each case. Simply long possession is not a factor to oust a co-sharer but something more positive is required to be done. There must be a hostile open possession, denial and repudiation of the rights of other co-owners and this denial or repudiation must be brought home to the co-owners. Simply because a co-sharer gave notice claiming partition of the suit properties and possession and did not pursue the matter further, that will not be sufficient to show that the co-sharer has lost his/her right.

Tanusree Basu v. Ishani Prasad Basu, (2008) 4 SCC 791. 17. Strong reliance has been placed by Mr Banerjee on a judgment of the Bombay High Court in Bhaguji Bayaji Pokale v. Kantilal Baban Gunjawate4 wherein it was held: (AIR p. 117, para 8) “8[7]. With regard to second substantial question of law i.e. the co-owner cannot claim an order of injunction against another co-owner with regard to the property owned jointly, the learned counsel for the appellants has relied upon the Apex Court’s judgment in Mohd. Baqar v. Naim-un-Nisa Bibi5. The Apex Court has very categorically held in para 7 as under: (AIR p. 550) ‘7. … The parties to the action are co-sharers, and as under the law, possession of one co-sharer is possession of all co-sharers it cannot be adverse to them, unless there is a denial of their right to their knowledge by the person in possession, and exclusion and ouster following thereon for the statutory period.’ ” It was observed: (AIR p. 117, para 10) “10. … Similarly, the legal position that the co-owner or co-sharer of the property can never claim ownership by adverse possession of the other share. This is also a well-settled law.”

S.K. Lakshminarasappa v. B. Rudraiah, 2011 SCC OnLine Kar 3545 : ILR 2012 KAR 4129 : (2012) 4 AIR Kant R 424 81. In the light of the aforesaid undisputed facts and the judgments of the Apex Court, it is clear that unless the person asserting title by adverse possession admits title of the plaintiff and denies his title openly, the basic requirement of adverse possession is not established. Similarly, if “the case of the defendant is that he was lawfully put in possession and he has become the absolute owner and he asserts title to the property by such valid transfer of title, the plea of adverse possession is not available to him. Similarly, if the purchaser from one of the members of the joint family or a co-owner, asserts adverse possession, then the law governing adverse possession between co-owners and members of a joint family is attracted. Unless there is a plea of ouster and unless the said plea is established by acceptable evidence, they cannot succeed on the plea of adverse possession. Therefore, as rightly held by the Trial Judge in this case, the defendants have failed to establish the plea of adverse possession which they have set-up. Therefore, we do not see any infirmity in the said finding recorded by the Trial Court.

Nagabhushanammal v. C. Chandikeswaralingam, (2016) 4 SCC 434. 24. This Court in Vidya Devi v. Prem Prakash (1995) 4 SCC 496 held that: (SCC p. 505, para 28) “28. ‘Ouster’ does not mean actual driving out of the co-sharer from the property. It will, however, not be complete unless it is coupled with all other ingredients required to constitute adverse possession. Broadly speaking, three elements are necessary for establishing the plea of ouster in the case of co-owner. They are (i) declaration of hostile animus, (ii) long and uninterrupted possession of the person pleading ouster, and (iii) exercise of right of exclusive ownership openly and to the knowledge of other co-owner. Thus, a co-owner, can under law, claim title by adverse possession against another co-owner who can, of course, file appropriate suit including suit for joint possession within time prescribed by law.”

Compiled by S. Basavaraj, Advocate, Daksha Legal.

Rajashekar vs State by Banavasi PS. Criminal Petition 8846/2015 decided on 3 November 2020.

Judgment Link: http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/347381/1/CRLP8846-16-03-11-2020.pdf

Relevant Paragraphs: 12. In the instant case, the second respondent who  is a defacto complaint initiated criminal prosecution against the petitioner who is arraigned as accused by registering private complaint in PCR No.13/2015 based upon which Crime No.111/2015 came to be registered by the first respondent for the aforesaid offences. As already stated in detail that the petitioner/accused when he presented cheque which was issued by the second respondent for a sum of Rs.6,60,000/- at his banker Corporation Bank, Shiralakoppa branch, Shikaripura Taluk, Shimoga, the said cheque was returned with a  shara stating “ insufficient fund” and “signature differs”. This ground was also urged in this petition for seeking intervention of the criminal prosecution initiated against the petitioner/accused. The petitioner/accused is a close relative of second respondent and also a progressive agriculturist who approached the second respondent offering to cultivate the land belonging to him.

13. Further the offence alleged against the petitioner under Section 418 of IPC that the petitioner has cheated the second respondent is also not correct as  the  allegations made in the complaint does not attract the ingredients of Section 418 of IPC. Similarly the ingredients of Sections 420 and 468 of IPC also does not attract in the present case. These are all the facts that reveals in the materials available on record.

14. It is relevant to refer the scope and object of Section 482 of Cr.P.C. which deals with the inherent powers of the Court which has to be exercised judicially, judiciously, sparingly and cautiously, if not, there shall be miscarriage of justice and so also, abuse of process of law. While exercising the jurisdiction under Section 482 of Cr.P.C. the Court would not ordinarily embark upon an enquiry whether evidence in question is reliable or not  or whether on a reasonable appreciation of it, the accusation would not be sustained.  Section 482 Cr.P.C it is only to intervene with judicially and judiciously in order to avoid the abuse of process of law and also to secure the ends of justice.

Compiled by S. Basavaraj, Advocate, Daksha Legal.

Syed Asif Ali and another vs The State of Karnataka and another. Criminal Petition 2614/2017 decided on 5 November 2020.

Judgment Link: http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/347386/1/CRLP2614-17-05-11-2020.pdf

Relevant Paragraphs: 9. Section 482 of Cr.P.C. include powers to quash  FIR, investigation or any criminal proceedings pending before the High Court or any court subordinate to it and  are of wide magnitude and ramification. Such powers can  be exercised to secure ends of justice, prevent abuse of the process of  any court and to make such orders as may  be necessary to give effect to any order under this Code, depending upon the facts of a given  case.  The  Court  should take note of any miscarriage of justice and prevent the same by exercising its powers under  Section  482  of  the Code. However, such inherent powers are to be exercised judicially, judiciously, sparingly and cautiously.

10. Even though the case against these accused have been proceeded with facing of trial for the aforesaid offences, it is nothing but formalities and closing of the case. Therefore, circumstances warrant this court to intervene by exercising the inherent power under Section 482 of Cr.P.C., if not, there shall be miscarriage of justice and also abuse of process of law. However, consciously the materials have been looked into and rescanning has been done. When once the co- accused have been acquitted, the same benefit shall be accrued to these petitioners also. Then only constitutional protection under Article 21 of Constitution of India shall be enshrined, if not, certainly there shall be miscarriage of justice.

Compiled by S.Basavaraj, Advocate, Daksha Legal.