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CONTENTS OF THIS BLOG

DIRECTORS OF THE COMPANY CANNOT BE PROCEEDED WITH UNLESS THERE IS SOME SPECIFIC AVERMENT IN THE COMPLAINT ABOUT THEIR BEING RESPONSIBLE FOR THE DAY TO DAY AFFAIRS

Apex Court reported in 2007 AIR SCW 1880 : 2007 (3) AIR Kar R 247 to contend that when there is no material to show that the director of the company had a role to play, he cannot- be made liable under Section 141 of the Negotiable Instruments Act.
ILR 2002 Kant 475 : 2002 AIR - Kant HCR 544 and this decision is to the effect that all the Directors of the Company cannot be proceeded with unless there is some specific averment in the complaint about their being responsible for the day to day affairs.
In the case of N.K. Wahi v. Shekhar Singh and Ors. 2007 AIR SCW 1880 : 2007 (3) AIR Kar R 247 dealing with the case under the Negotiable Instruments Act, 1881, the Apex Court has held that where it was found on facts that the Director had resigned from the Directorship of the Company before the date of the cheaue being issued and before depositing of the cheque by the drawee and where there was no averment in the complaint as to, how and in what manner the Director was responsible for the conduct of the business of the company or otherwise responsible to it in regard to its functioning, the question of proceeding with against the said Director therefore, will not arise and consequently the Court quashed the proceedings as against the Director of the Company in the said case. This Court in the case of Sanjay G. Revankar v. State by Drug Inspector, Uttar Karnataka District, Karwar has observed that unless there is specific averment in the complaint about the Director of the Company being responsible for day-to-day affairs, the Director therefore cannot be proceeded with. The Court also: observed that where the complaint did not make any specific averment about the role of each of the Directors except baldly stating in the complaint that the Directors of the Company are also responsible for day-to-day affairs of the firm or company, the question of the Directors being proceeded with the case will not arise.

OFFENCES COMMITTED BY A PARTY TO A PROCEEDING IN THAT COURT

In the decision in Raghunath and Others v. State of U.P. and Others AIR 1973 SC 1100, (1973) 1 SCC 564 it is observed : "In this Court the main contention raised on behalf of the appellants by their learned counsel was that even prosecution for an offence under Section 465 I.P.C. requires complaint by the revenue court concerned as such an offence is covered by Section 195(1)(c), Cr.P.C. This contention is difficult to accept. …….. The offences about which the court alone, to the exclusion of the aggrieved private parties, is clothed with the right to complain may, therefore, be appropriately considered; to be only those offences committed by a party to a proceeding in that court, the commission of which has a reasonably close nexus with the proceedings in that court so that it can, without embarking upon a completely independent and fresh inquiry, satisfactorily consider by reference principally to its records the expediency of prosecuting the delinquent party. It, therefore, appears to us to be more appropriate to adopt the strict construction of confining the prohibition contained in Section 195(1)(c) only to those cases in which the offences specified therein were committed by a party to the proceeding in the character as such party." this Court then referred to Sections 476, 476A and 476B. Cr.P.C. and observed: All these sections read together indicate that the legislature could not have intended to extend the prohibition contained in Section 195(1)(c), Cr.P.C. to the offences mentioned therein when committed by a party to a proceeding in that court prior to his becoming such party. It is no doubt true that quite often if not almost invariably - the documents are forged for being used or produced in evidence in court before the proceedings are started. But that in our opinion cannot be the controlling factor, because to adopt that construction, documents forged long before the commencement of a proceeding in which they may happen to be actually used or produced in evidence, years later by some other party would also be subject to Sections 195 and 476, Cr.P.C. This in our opinion would unreasonably restrict the right possessed by a person and recognized by Section 190, Cr.P.C. without promoting the real purpose and object underlying these two sections. The Court in such a case may not be in a position to satisfactorily determine the question of expediency of making a complaint. It is thus clear that the factor of delay between the forgery and the production or use of the document in court had no direct bearing on the ratio.

Patel Laljibhai Somabhai v. The State of Gujarat [1971] 2 SCC 376 after considering the conflict of judicial opinion on this point, approved the view taken in Kushal Pal Singh case (supra). According to that decision the words "to have been committed by a party to any proceeding in any court" in Section 195(1)(c) mean that the offence should be alleged to have been committed by the party to the proceeding in his character as such party, that is, after having become a party to the proceeding.

POLICE SHALL REGISTER FIR IN COGNIZIBLE OFFENCE COMPLAINTS 2006 SC

The Hon‟ble Apex Court in Lallan Chaudhary & Ors. Vs. State of Bihar & Anr. (2006)12 SCC 229 held as under: "Section 154 of the Code thus casts a statutory duty upon police officer to register the case, as disclosed in the complaint, and then to proceed with the investigation. The mandate of Section 154 is manifestly clear that if any information disclosing a cognizable offence is laid before an officer in charge of a police station, such police officer has no other option except to register the case on the basis of such information……”

MAGISTRATE CAN REGISTER CONTEMPT PROCEEDINGS IF FIR IS NOT REGISTERED WITHIN 24 HOURS OF MAGISTRATE ORDERS 2008 SC

The Apex Court in Lalita Kumari Vs. Government of U.P.& Ors.(2008) 7 SCC 164 expressed its utmost displeasure on the failure of the police authorities of the country in not registering FIR‟s unless directions are given by the Chief Judicial Magistrate or the High Courts or the Supreme Court. The case before the Apex Court concerned the kidnapping of a minor child for which the police did not register an FIR till the matter was reported to the senior officials of the police and then sat over the investigation. Recommending initiation of contempt proceedings against the delinquent officials and to punish them for violation of the orders if no sufficient cause is shown the Hon‟ble Apex Court held that: "6. In view of the above, we feel that it is high time to give directions to the Governments of all the States and Union Territories besides their Director Generals of Police/Commissioners of Police as the case may be to the effect that if steps are not taken for registration of FIRs immediately and copies thereof are not made over to the complainants, they may move the Magistrates concerned by filing complaint petitions to give direction to the police to register case immediately upon receipt/production of copy of the orders and make over copy of the FIRs to the complainants, within twenty-four hours of receipt/production of copy of such orders. It may further give direction to take immediate steps for apprehending the accused persons and recovery of kidnapped/abducted persons and properties which were the subject- matter of theft or dacoity. In case FIRs are not registered within the aforementioned time, and/or aforementioned steps are not taken by the police, the Magistrate concerned would be justified in initiating contempt proceeding against such delinquent officers and punish them for violation of its orders if no sufficient cause is shown and awarding stringent punishment like sentence of imprisonment against them inasmuch as the disciplinary authority would be quite justified in initiating departmental proceeding and suspending them in contemplation of the same."

COMPLAINT SHOULD CONTAIN THE FACTS CONSTITUTING THE OFFENCE

Mahant Baba Madhav Das vs State Of Rajasthan And Anr. 1998 CriLJ 4341, (Raj) In Clause(d) of Section 2 of the Criminal Procedure Code, the complaint has been defined in the following words :
"complaint" means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence, but does not include a police-report.
Explanation.- A report made by a police officer in a case which discloses, after investigation, the commission of a non-cognizable offence shall be deemed to be a complaint and the police officer by whom such report is made shall be deemed to be the complainant.
The definition of "complaint" requires that the complaint should contain allegations that some person, whether known or unknown, has committed an offence and that it should have been made with a view that action should be taken on it. Clause (a) of Sub-section (1).of Section 190 of the Criminal Procedure Code requires the complaint to contain "facts which constitute such offence". As indicated by the words "upon receiving a complaint of facts which constitute such offence", shows that the complain! which may be Submitted before the Magistrate under Clause(a) of Sub-section (1) of Section 190 of the Criminal Procedure Code must contain not only the allegation that an offence has been committed but should also contain the facts constituting the offence. The reason for insisting on "facts which constitute such offence" is not difficult to be found out. A mere allegation thai a certain person has committed an offence, without stating the facts which constitute the offence, cannot enable the Magistrate or the police officer to apply his mind independently to the case in order to ascertain whether any offence has or has not been committed. The Magistrate before whom the complaint is filed is required to apply his mind independently and judicially to the complaint Submitted before him in order to find out whether any offence has or has not been committed. Whatever the complainant alleges cannot be accepted as correct. The very fact that the Magistrate is required to act independently in the matter and that he should form his own opinion regarding the commission of one or more offences shows that the facts of the case must be brought to his notice. This is why clauses (a), (b) and (c) of Sub-section (1) of Section 190 of the Criminal Procedure Code expressly require that the complaint or the police-report or other information must contain facts constituting the alleged offence. If a complaint contains only the allegations and does not contain the facts constituting the offence such a complaint would not be a complaint contemplated under Clause(a) of Sub-section (1) of Section 190 of the Criminal Procedure Code.

WHAT COURSE OF ACTION OPEN TO MAGISTRATE WHEN PCR IS FILED

Justice Hon'ble Bala Krishna Narayana, of Allahabad High Court, in the case of Smt. Javitri Devi vs State Of U.P. And Others, Decided on 11 January, 2010
In these circumstances, the question arises that when a Magistrate is approached by a complainant with an application praying for a direction to the police under Section 156 (3) to register and investigate an alleged cognizable offence, when should he—
(A) grant the relief of registration of a case and its investigation by the police under Section 156 (3) Cr.P.C.,
(B) treat the application as a complaint and follow the procedure of Chapter XV of Cr.P.C.
The scheme of Cr.P.C. and the prevailing circumstances require that the option to direct the registration of the case and its investigation by the police should be exercised where some"investigation" is required, which is of a nature that is not possible for the private complainant, and which can only be done by the police upon whom State has conferred the powers essential for investigation, for example.
(1) where the full details of the accused are known to the complainant and the same can be determined only as a result of investigation, or
(2) where recovery of abducted person of stolen property is required to be made by conducting raids or searches of suspected places or persons, or
(3) where for the purpose of launching a successful prosecution of the accused evidence is required to be collected and preserved.
To illustrate by example cases may be visualised where for production before Court at the trial
(a) sample of blood soaked soil is to be taken and kept sealed for fixing the place of incident, or
(b) recovery of case property is to be made and kept sealed; or
(c) recovery under Section 27 of the Evidence Act; or
(d) preparation of inquest report; or
(e) witnesses are not known and have to be found out or discovered through the process of investigation.
But where the complainant is in possession of the complete details of all the accused as well as the witnesses who have to be examined and neither recovery is needed nor any such material evidence is required to be collected which can be done only by the police, no "investigation" would normally be required and the procedure of complainant case should be adopted. The facts of the present case given below serve as an example. It must be kept in mind that adding unnecessary case to the diary of the police would impair their efficiency in respect of cases genuinely requiring investigation. Besides even after taking cognizance and proceeding under Chapter XV the Magistrate can still under Section 202 (1) Cr.P.C. order investigation, even though of a limited nature.

TRANSFER OF AN UNDERTRIAL TO A DISTANT PRISON MAY ADVERSELY AFFECT HIS RIGHT TO DEFENCE & ISOLATE HIM FROM THE SOCIETY

That transfer of an undertrial to a distant prison may adversely affect his right to defend himself but also isolate him from the society of his friends and relations is settled by the decision of Court in Sunil Batra v. Delhi Administration AIR 1980 SC 1579, where Court observed: “48. Inflictions may take many protean forms, apart from physical assaults. Pushing the prisoner into a solitary cell, denial of a necessary amenity, and, more dreadful sometimes, transfer to a distant prison where visits or society of friends or relations may be snapped, allotment of degrading labour, assigning him to a desperate or tough gang and the like, may be punitive in effect. Every such affliction or abridgment is an infraction of liberty or life in its wider sense and cannot be sustained unless Article 21 is satisfied. There must be a corrective legal procedure, fair and reasonable and effective. Such infraction will be arbitrary, under Article 14 if it is dependent on unguided discretion, unreasonable, under Article 19 if it is irremediable and unappealable, and unfair, under Article 21 if it violates natural justice. The string of guidelines in Batra set out in the first judgment, which we adopt, provides for a hearing at some stages, a review by a superior, and early judicial consideration so that the proceedings may not hop from Caesar to Caesar. We direct strict compliance with those norms and institutional provisions for that purpose.”

WHETHER A POA HOLDER APPEAR ON BEHALF OF ACCUSED ?

Hon'ble the Apex Court in the matter of T.C. Mathai v. District & Sessions Judge,[(1999) 3 SCC 614 : AIR 1999 SC 1385] has held that the provisions of Power of Attorney Act, 1882 can not override the specific provision of the statute which requires that a particular act should be done by a party in person and thus when the Criminal Procedure Code requires the appearance of an accused in a Court, it is no compliance with it if a power of attorney holder appears for him. Unlike the provisions of the Cr.PC where a party is required to appear in person and in case of exemption from personal appearance, is required to be represented by a pleader, the CPC does not enjoin on a party to appear in person in all circumstances until the appearance is dispensed with by the Court.

WHEN THERE IS NO PROPER INVESTIGATION BY POLICE - A MAGISTRATE SHALL REFER THE MATTER TO SOME SENIOR OFFICER FOR PROPER INVESTIGATION 2012 SC

FULL JUDGMENT
JUSTICE Ashok Kumar Ganguly, & JUSTICE T.S. Thakur in the case of Azija Begum vs State Of Maharashtra & Anr Reported in 2012 (3 ) SCC 126 = 2012 (1 ) JT 167 = 2012 (1 ) SCALE 328 It was expected of the High Court to look into the matter with greater care and caution as a very serious offence had taken place followed by an investigation in respect of which the Magistrate himself had expressed serious reservations but failed to give proper direction. …………… Every citizen of this country has a right to get his or her complaint properly investigated. The legal framework of investigation provided under our laws cannot be made selectively available only to some persons and denied to others. This is a question of equal protection of laws and is covered by the guarantee under Article 14 of the Constitution. The issue is akin to ensuring an equal access to justice. A fair and proper investigation is always conducive to the ends of justice and for establishing rule of law and maintaining proper balance in law and order. These are very vital issues in a democratic set up which must be taken care of by the Courts. …….

MAGISTRATE MAY PERUSE THE COMPLAINT WITHOUT EXAMINING MERITS OF THE CLAIM DIRECT INVESTIGATION UNDER 156-3 CRPC

FULL JUDGMENT
JUSTICE SATHASIVAM & JUSTICE ANIL R DAVE IN THE CASE OF SRINIVAS GUNDLURI & ORS. .Vs. SEPCO ELECTRIC POWER CONSTRUCTION CORPORATION & ORS. REPORTED IN 2010 (9 ) SCR 278 = 2010 (8 ) SCC 206 = 2010 (7 ) JT 534 = 2010 (7 ) SCALE 665

From the order of the Magistrate dated 04.07.2009 it is clear that the Magistrate only ordered investigation under section 156 (3) of the
Code of Criminal Procedure, 1973. It also shows that the Magistrate perused the complaint without examining the merits of the claim that there is sufficient ground for proceeding or not, directed the police officer concerned for investigation under section 156 (3) of the Code. The Single Judge of the High Court rightly observed that the Magistrate did not bring into motion the machinery of Chapter XV of the Code. He did not examine the complainant or his witnesses under section 200 of the Code which is the first step in the procedure prescribed under the said Chapter. The question of taking next step of the procedure envisaged in section 202 did not arise. Instead of taking cognizance of the offence, the Magistrate merely allowed the application filed by the complainant/SEPCO under section 156(3) of the Code and sent the same along with its annexure for investigation by the police officer concerned under section 156 (3) of the Code. To proceed under section 156 (3) of the Code, what is required is a bare reading of the complaint and if it discloses a cognizable offence, then the Magistrate instead of applying his mind to the complaint for deciding whether or not there is sufficient ground for proceeding, may direct the police for investigation. In the instant case, the Single Judge and Division Bench of the High Court rightly pointed out that the Magistrate did not apply his mind to the complaint for deciding whether or not there is sufficient ground for proceeding and, therefore, the Magistrate has not committed any illegality in directing the police to register FIR and conduct investigation.

As a matter of fact, even after receipt of such report, the Magistrate
under section 190 (1) (b) may or may not take cognizance of offence. In other words, he is not bound to take cognizance upon submission of the police report by the Investigating Officer, hence, by directing the police to file charge sheet or final report and to hold investigation with a particular result cannot be construed that the Magistrate has exceeded his power as provided in sub-section (3) of section 156. Neither the charge sheet nor the final report has been defined in the Code. The charge sheet or final report whatever may be the nomenclature, it only means a report under section 173 of the Code which has to be filed by the police officer on completion of his investigation.

The Magistrate in passing the impugned order has not committed any illegality leading to manifest injustice warranting interference by the High Court in exercise of extraordinary jurisdiction conferred under Article 226 of the Constitution of India. The Single Judge as well as the Division Bench rightly refused to interfere with the limited order passed by the Magistrate. The challenge at this stage by the appellants is pre- mature and the High Court rightly rejected their request.




WHETHER AN IO CAN RAISE JURISDICTION POINT AND REFUSE INVESTIGATION REFERRED UNDER 156(3)

FULL JUDGMENT
RASIKLAL DALPATRAM THAKKAR .Vs. STATE OF GUJARAT & ORS. 2010 AIR 715 = 2009 (15 ) SCR 722 = 2010 (1 ) SCC 1 = 2009 (13 ) SCALE 628

The question which arose for consideration in the present appeal was
whether in regard to the order passed under Section 156(3) Cr.P.C., the police authorities empowered under Sub-Section (1) of Section 156 can unilaterally decide not to conduct an investigation on the ground that they had no territorial jurisdiction to do so. Investigating agency cannot decide not to investigate a complaint forwarded to it under s.156(3) on the ground that offence complained of was allegedly committed outside its territorial jurisdiction.

FACTS OF THE CASE:- In the instant case, the stage contemplated under Section 181(4) Cr.P.C. has not yet been reached. Prior to taking cognizance on the complaint filed by the Bank, the Chief Judicial Metropolitan Magistrate, Ahmedabad, had directed an inquiry under Section 156(3) Cr.P.C. A final report was submitted by the Investigating Agency entrusted with the investigation stating that since the alleged transactions had taken place within the territorial limits of the city of Mumbai, no cause of action had arisen in the State of Gujarat and, therefore, the investigation should be transferred to the police agency in Mumbai. Both the trial Court as well as the Bombay High Court correctly interpreted the provisions of Section 156 Cr.P.C. to hold that it was not within the jurisdiction of the Investigating Agency to refrain itself from holding a proper and complete investigation merely upon arriving at a conclusion that the offences had been committed beyond its territorial jurisdiction. A glance at the material before the Magistrate would indicate that the major part of the loan transaction, in fact, took place in the State of Gujarat and that having regard to the provisions of Sub-section (2) of Section 156 Cr.P.C., the proceedings of the investigation could not be questioned on the ground of jurisdiction of the officer to conduct such investigation. It was open to the learned Magistrate to direct an investigation under Section 156(3) Cr.P.C. without taking cognizance on the complaint and where an investigation is undertaken at the instance of the Magistrate a Police Officer empowered under Sub-section (1) of Section 156 is bound, except in
specific and specially exceptional cases, to conduct such an investigation even if he was of the view that he did not have jurisdiction to investigate the matter.


It is the settled law that the complaint made in a criminal case follows the place where the cause arises, but the distinguishing feature in the instant case is that the stage of taking cognizance was yet to arrive. The Investigating Agency was required to place the facts elicited during the investigation before the Court in order to enable the Court to come to a conclusion as to whether it had jurisdiction to entertain the complaint or not. Without conducting such an investigation, it was improper on the part of the Investigating Agency to forward its report with the observation that
since the entire cause of action for the alleged offence purportedly arose in the city of Mumbai within the State of Maharashtra, the investigation should be transferred to the concerned Police Station in Mumbai. Section 156(3) Cr.P.C. contemplates a stage where the Magistrate is not convinced as to whether process should issue on the facts disclosed in the complaint. Once the facts are received, it is for the Magistrate to decide his next course of action. In this case, there are materials to show that the appellant had filed his application for loan with the Head Office of the Bank at Ahmedabad and that the processing and the sanction of the loan was also done in Ahmedabad which clearly indicates that the major part of the cause of action for the complaints arose within the jurisdiction of the Chief Metropolitan Magistrate, Ahmedabad. It was not, therefore, desirable on the part of the Investigating Agency to make an observation that it did not have territorial jurisdiction to proceed with the investigation, which was required to be transferred to the Police Station having jurisdiction to do so.

The Magistrate was fully justified in rejecting the Final Report submitted by the Economic Offences Wing, State CID (Crime) and to order a fresh investigation into the allegations made on behalf of the Bank. The High Court, therefore, did not commit any error in upholding the views expressed by the Trial Court. Section 181(4) Cr.P.C. deals with the Court's powers to inquire or try an offence of criminal misappropriation or of a criminal breach of trust if the same has been committed or any part of the property, which is the subject of the offence, is received or retained within the local jurisdiction of the said Court.

The powers vested in the Investigating Authorities under Sections 156(1) Cr.P.C., did not restrict the jurisdiction of the Investigating Agency to investigate into a complaint even if it did not have territorial jurisdiction to do so. Unlike as in other cases, it was for the Court to decide whether it had jurisdiction to entertain the complaint as and when the entire facts were placed before it.

A police officer in charge of a police station can, without the order of a Magistrate, investigate any cognizable offence which a Court having jurisdiction over such police station can inquire into or try under Chapter III of the Code of Criminal Procedure. Sub-section (2) of Section 156 ensures that once an investigation is commenced under Sub-section (1), the same is not interrupted on the ground that the police officer was not empowered under the Section to investigate. It is in the nature of a "savings clause" in respect of investigations undertaken in respect of cognizable offences. In addition to the powers vested in a Magistrate empowered under Section 190 Cr.P.C. to order an investigation under Sub- section (1) of section 202 Cr.P.C., Sub-section (3) of Section 156 also empowers such Magistrate to order an investigation on a complaint filed before him. Sub-section (4) only indicates that an inquiry or trial of an offence of criminal misappropriation or criminal breach of trust can be conducted by a Court within whose jurisdiction the offence had been committed or any part of the property forming the subject matter of the offence is received or retained or was required to be returned or accounted for by the accused person. The said provisions do not account for a stage contemplated on account of an order made under Section 156(3) Cr.P.C.


SOCIAL ACTIVIST VICTIMISED BY STATE THROUGH POLICE TORTURE AND HARASSMENT OF FALSE CASES– COMPENSATION AWARDED BY SUPREME COURT 2012 SC


Justice K. S. Radhakrishnan and Justice Dipak Misra, In the case of Dr. Mehmood Nayyar Azam Vs. State of Chattisgarh and Ors. Decided on 03-08-2012

“In “Kaplan & Sadock’s Synopsis of Psychiatry”, while dealing with torture, the learned authors have stated that intentional physical and psychological torture of one human by another can have emotionally damaging effects comparable to, and possibly worse than, those seen with combat and other types of trauma. Any psychological torture inflicts immense mental pain. A mental suffering at any age in life can carry the brunt and may have nightmarish effect on the victim. The hurt develops a sense of insecurity, helplessness and his selfrespect gets gradually atrophied. We have referred to such aspects only to highlight that in the case at hand, the police authorities possibly have some kind of sadistic pleasure or to “please someone” meted the appellant with this kind of treatment. It is not to be forgotten that when dignity is lost, the breath of life gets into oblivion. In a society governed by rule of law where humanity has to be a laser beam, as our compassionate constitution has so emphasized, the police authorities cannot show the power or prowess to vivisect and dismember the same.”


“Term “harassment” In P. Ramanatha Aiyar’s Law Lexicon, Second Edition, the term “harass” has been defined, thus:- “Harass. “injure” and “injury” are words having numerous and comprehensive popular meanings, as well as having a legal import. A line may be drawn between these words and the word “harass” excluding the latter from being comprehended within the word “injure” or “injury”. The synonyms of “harass” are: To weary, tire, perplex, distress tease, vex, molest, trouble, disturb. They all have relation to mental annoyance, and a troubling of the spirit.” The term “harassment” in its connotative expanse includes torment and vexation. The term “torture” also engulfs the concept of torment. The word “torture” in its denotative concept includes mental and psychological harassment. The accused in custody can be put under tremendous psychological pressure by cruel, inhuman and degrading treatment.


…Treatment meted to an accused while he is in custody which causes humiliation and mental trauma corrodes the concept of human dignity. The majesty of law protects the dignity of a citizen in a society governed by law. It cannot be forgotten that the Welfare State is governed by rule of law which has paramountcy. It has been said by Edward Biggon “the laws of a nation form the most instructive portion of its history.” The Constitution as the organic law of the land has unfolded itself in manifold manner like a living organism in the various decisions of the court about the rights of a person under Article 21 of the Constitution of India. When citizenry rights are sometimes dashed against and pushed back by the members of City Halls, there has to be a rebound and when the rebound takes place, Article 21 of the Constitution springs up to action as a protector. That is why, an investigator to a crime is required to possess the qualities of patience and perseverance as has been stated in Nandini Sathpaty v. P. L. Dani, AIR 1978 SC 1025.



CASE LAW DISCUSSED

In D.K. Basu v. State of W.B. AIR 1997 SC 610 : (1997) 1 SCC 416 it has been held thus: - “10. “Torture” has not been defined in the Constitution or in other penal laws. “Torture” of a human being by another human being is essentially an instrument to impose the will of the “strong” over the “weak” by suffering. The word torture today has become synonymous with the darker side of human civilization. “Torture is a wound in the soul so painful that sometimes you can almost touch it, but it is also so intangible that there is no way to heal it. Torture is anguish squeezing in your chest, cold as ice and heavy as a stone, paralyzing as sleep and dark as the abyss. Torture is despair and fear and rage and hate. It is a desire to kill and destroy including yourself.” - Adriana P. Bartow, No violation of any one of the human rights has been the subject of so many Conventions and Declarations as “torture” - all aiming at total banning of it in all forms, but in spite of the commitments made to eliminate torture, the fact remains that torture is more widespread now than ever before. “Custodial torture” is a naked violation of human dignity and degradation which destroys, to a very large extent, the individual personality. It is a calculated assault on human dignity and whenever human dignity is wounded, civilization takes a step backward – flag of humanity must on each such occasion fly half-mast. In all custodial crimes what is of real concern is not only infliction of body pain but the mental agony which a person undergoes within the four walls of police station or lock-up. Whether it is physical assault or rape in police custody, the extent of trauma, a person experiences is beyond the purview of law.”

In the case of D.K. Basu , the concern shown by Supreme Court in Joginder Kumar v.State of U.P., (1994) 4 SCC 260 was taken note of. In Joginder Kumar’s case, Court voiced its concern regarding complaints of violation of human rights during and after arrest. It is apt to quote a passage from the same:- “The horizon of human rights is expanding. At the same time, the crime rate is also increasing. Of late, this Court has been receiving complaints about violations of human rights because of indiscriminate arrests. How are we to strike a balance between the two? A realistic approach should be made in this direction. The law of arrest is one of balancing individual rights, liberties and privileges, on the one hand, and individual duties, obligations and responsibilities on the other; of weighing and balancing the rights, liberties and privileges of the single individual and those of individuals collectively; of simply deciding what is wanted and where to put the weight and the emphasis; of deciding which comes first – the criminal or society, the law violator or the law abider…”

Two-Judge Bench decision in Sunil Gupta and others v. State of Madhya Pradesh and others, (1990) 3 SCC 119. The said case pertained to handcuffing where the accused while in judicial custody were being escorted to court from jail and bound in fetters. In that context, the Court stated that the escort party should record reasons for doing so in writing and intimate the court so that the court, considering the circumstances may either approve or disapprove the action of the escort party and issue necessary directions. The Court further observed that when the petitioners who had staged ‘Dharna’ for public cause and voluntarily submitted themselves for arrest and who had no tendency to escape, had been subjected to humiliation by being handcuffed, such act of the escort party is against all norms of decency and is in utter violation of the principle underlying Article 21 of the Constitution of India. The said act was condemned by this Court to be arbitrary and unreasonably humiliating towards the citizens of this country with the obvious motive of pleasing ‘someone’.

In Bhim Singh, MLA v. State of J & K, (1985) 4 SCC 677 Court expressed the view that the police officers should have greatest regard for personal liberty of citizens as they are the custodians of law and order and, hence, they should not flout the law by stooping to bizarre acts of lawlessness. It was observed that custodians of law and order should not become depredators of civil liberties, for their duty is to protect and not to abduct.

It needs no special emphasis to state that when an accused is in custody, his Fundamental Rights are not abrogated in toto. His dignity cannot be allowed to be comatosed. The right to life is enshrined in Article 21 of the Constitution and a fortiorari, it includes the right to live with human dignity and all that goes along with it. It has been so stated in Francis Coralie Mullin v. Administrator, Union Territory of Delhi and others, (1981) 1 SCC 608 and D.K. Basu

In Kharak Singh v. State of U. P., (1964) 1 SCR 332 court approved the observations of Field, J. in Munn v. Illinois, (1877) 94 US 113:- “By the term “life” as here [Article 21] used something more is meant than mere animal existence. The inhibition against its deprivation extends to all those limbs and faculties by which life is enjoyed.”

In Arvinder Singh Bagga v. State of U.P. and others, AIR 1995 SC 117 it has been opined that torture is not merely physical but may even consist of mental and psychological torture calculated to create fright to submit to the demands of the police.

In Smt. Kiran Bedi v. Committee of Inquiry and another, (1989) 1 SCC 494 Court reproduced an observation from the decision in D. F. Marion v. Davism, 55 ALR 171:- “The right to enjoyment of a private reputation, unassailed by malicious slander is of ancient origin, and is necessary to human society. A good reputation is an element of personal security, and is protected by the Constitution equally with the right to the enjoyment of life, liberty and property.”

In Board of Trustees of the Port of Bombay v. Dilipkumar Raghavendranath Nadkarni and others, (1983) 1 SCC 124 it has been ruled that right to reputation is a facet of right to life of a citizen under Article 21 of the Constitution.

In Smt. Selvi and others v. State of Karnataka, AIR 2010 SC 1974 while dealing with the involuntary administration of certain scientific techniques, namely, narcoanalysis, polygraph examination and the Brain Electrical Activation Profile test for the purpose of improving investigation efforts in criminal cases, a three-Judge Bench opined that the compulsory administration of the impugned techniques constitute ‘cruel, inhuman or degrading treatment’ in the context of Article 21. Thereafter, the Bench adverted to what is the popular perception of torture and proceeded to state as follows:- “The popular perceptions of terms such as ‘torture’ and ‘cruel, inhuman or degrading treatment’ are associated with gory images of blood-letting and broken bones. However, we must recognize that a forcible intrusion into a person’s mental processes is also an affront to human dignity and liberty, often with grave and long-lasting consequences. [A similar conclusion has been made in the following paper: Marcy Strauss, ‘Criminal Defence in the Age of Terrorism – Torture’, 48 New York Law School Law Review 201-274 (2003/2004)].” After so stating, the Bench in its conclusion recorded as follows:- “We have also elaborated how the compulsory administration of any of these techniques is an unjustified intrusion into the mental privacy of an individual. It would also amount to ‘cruel, inhuman or degrading treatment’ with regard to the language of evolving international human rights norms.”

Vishwanath S/o Sitaram Agrawal v. Sau. Sarla Vishwanath Agrawal, 2012 (6) SCALE 190 although in a different context, while dealing with the aspect of reputation, this Court has observed as follows:- “……..reputation which is not only the salt of life, but also the purest treasure and the most precious perfume of life. It is extremely delicate and a cherished value this side of the grave. It is a revenue generator for the present as well as for the posterity.”

In Delhi Judicial Services Association v. State of Gujarat, (1991) 4 SCC 406 while dealing with the role of police, Court condemned the excessive use of force by the police and observed as follows:- “The main objectives of police is to apprehend offenders, to investigate crimes and to prosecute them before the courts and also to prevent commission of crime and above all to ensure law and order to protect citizens’ life and property. The law enjoins the police to be scrupulously fair to the offender and the Magistracy is to ensure fair investigation and fair trial to an offender. The purpose and object of Magistracy and police are complementary to each other. It is unfortunate that these objectives have remained unfulfilled even after 40 years of our Constitution. Aberrations of police officers and police excesses in dealing with the law and order situation have been subject of adverse comments from this Court as well as from other courts but it has failed to have any corrective effect on it. The police has power to arrest a person even without obtaining a warrant of arrest from a court. The amplitude of this power casts an obligation on the police and it must bear in mind, as held by this Court that if a person is arrested for a crime, his constitutional and fundamental rights must not be violated.”

In D.K. Basu v. State of W.B. AIR 1997 SC 610 : (1997) 1 SCC 416 “There can be no gainsaying that freedom of an individual must yield to the security of the State. The right of preventive detention of individuals in the interest of security of the State in various situations prescribed under different statutes has been upheld by the Courts. The right to interrogate the detenus, culprits or arrestees in the interest of the nation, must take precedence over an individual’s right to personal liberty. …….… The action of the State, however, must be “right, just and fair”. Using any form of torture for extracting any kind of information would neither be ‘right nor just nor fair’ and, therefore, would be impermissible, being offensive to Article 21. Such a crime-suspect must be interrogated-indeed subjected to sustain and scientific interrogationdetermined in accordance with the provisions of law. He cannot, however, be tortured or subjected to third degree methods or eliminated with a view to elicit information, extract confession or derive knowledge about his accomplishes, weapons etc. His constitutional right cannot be abridged except in the manner permitted by law, though in the very nature of things there would be qualitative difference in the method of interrogation of such a person as compared to an ordinary criminal.”


Nilabati Behera v. State or Orissa, (1993) 2 SCC 746 wherein it has been held thus:- “A claim in public law for compensation for contravention of human rights and fundamental freedoms, the protection of which is guaranteed in the Constitution, is an acknowledged remedy for enforcement and protection of such rights, and such a claim based on strict liability made by resorting to a constitutional remedy provided for the enforcement of a fundamental right is ‘distinct from, and in addition to, the remedy in private law for damages for the tort’ resulting from the contravention of the fundamental right. The defence of sovereign immunity being inapplicable, and alien to the concept of guarantee of fundamental rights, there can be no question of such a defence being available in the constitutional remedy. It is this principle which justifies award of monetary compensation for contravention of fundamental rights guaranteed by the Constitution, when that is the only practicable mode of redress available for the contravention made by the State or its servants in the purported exercise of their powers, and enforcement of the fundamental right is claimed by resort to the remedy in public law under the Constitution by recourse to Articles 32 and 226 of the Constitution.” Dr. A.S. Anand J., (as his Lordship then was), in his concurring opinion, expressed that the relief of monetary compensation, as exemplary damages, in proceedings under Article 32 by the Supreme Court or under Article 226 by the High Courts for established infringement of the indefeasible right guaranteed under Article 21 is a remedy available in public law and is based on the strict liability for contravention of the guaranteed basic and indefeasible rights of the citizen. The purpose of public law is not only to civilize public power but also to assure the citizen that they live under a legal system which aims to protect their interests and preserve their rights. Therefore, when the court moulds the relief by granting ‘compensation’ in proceedings under Article 32 or 226 seeking enforcement or protection of fundamental rights, it does so under the public law by way of penalizing the wrongdoer and fixing the liability for the public wrong on the State which has failed in its public duty to protect the fundamental rights of the citizen. The payment of compensation in such cases is not to be understood, as it is generally understood in a civil action for damages under the private law but in the broader sense of providing relief by an order of making ‘monetary amends’ under the public law for the wrong done due to breach of public duty, by not protecting the fundamental rights of the citizen. The compensation is in the nature of ‘exemplary damages’ awarded against the wrongdoer for the breach of its public law duty and is independent of the rights available to the aggrieved party to claim compensation under the private law in an action based on tort, through a suit instituted in a court of competent jurisdiction or/and prosecute the offender under the penal law.

In Sube Singh v. State of Haryana, AIR 2006 SC 1117 a three-Judge Bench of the Apex Court, after referring to its earlier decisions, has opined as follows:- “It is thus now well settled that award of compensation against the State is an appropriate and effective remedy for redress of an established infringement of a fundamental right under Article 21, by a public servant. The quantum of compensation will, however, depend upon the facts and circumstances of each case. Award of such compensation (by way of public law remedy) will not come in the way of the aggrieved person claiming additional compensation in a civil court, in enforcement of the private law remedy in tort, nor come in the way of the criminal court ordering compensation under Section 357 of Code of Civil Procedure.”

Hardeep Singh v. State of Madhya Pradesh, (2012) 1 SCC 748. The appellant therein was engaged in running a coaching centre where students were given tuition to prepare for entrance test for different professional courses. On certain allegation, he was arrested and taken to police station where he was handcuffed by the police without there being any valid reason. A number of daily newspapers published the appellant’s photographs and on seeing his photograph in handcuffs, the appellant’s elder sister was so shocked that she expired. After a long and delayed trial, the appellant, Hardeep Singh, filed a writ petition before the High Court of Madhya Pradesh at Jabalpur that the prosecution purposefully caused delay in conclusion of the trial causing harm to his dignity and reputation. The learned single Judge, who dealt with the matter, did not find any ground to grant compensation. On an appeal being preferred, the Division Bench observed that an expeditious trial ending in acquittal could have restored the appellant’s personal dignity but the State instead of taking prompt steps to examine the prosecution witnesses delayed the trial for five long years. The Division Bench further held there was no warrant for putting the handcuffs on the appellant which adversely affected his dignity. Be it noted, the Division Bench granted compensation of Rs. 70,000/-. This Court, while dealing with the facet of compensation, held thus:- “Coming, however, to the issue of compensation, we find that in light of the findings arrived at by the Division Bench, the compensation of Rs. 70,000/- was too small and did not do justice to the sufferings and humiliation undergone by the appellant. In the facts and circumstances of the case, we feel that a sum of Rs. 2,00,00/- (Rupees Two Lakhs) would be an adequate compensation for the appellant and would meet the ends of justice. We, accordingly, direct the State of Madhya Pradesh to pay to the appellant the sum of Rs. 2,00,000/-(rupees Two Lakhs) as compensation. In case the sum of Rs.70,000/- as awarded by the High Court, has already been paid to the appellant, the State would naturally pay only the balance amount of Rs.1,30,000/- (Rupees One Lakh thirty thousand)”.

WHAT MATERIALS CAN BE RELIED AT THE TIME OF CHARGE

Hem Chand Vs. State of Jharkhand (2008) 5 SCC 113 on the basis of admitted documents i.e. the documents admitted by the prosecution, the accused has a right to show that no case is made out against him.

Court in State of Orissa v. Debendra Nath Padhi (2005) 1 SCC 568. The documents, which were in the possession of the CBI, were required to be looked into at the stage of charge.

In view of Niranjan Singh Karam Singh Punjabi v. Jitendra Bhimraj Bijja and others (1990) 4 SCC 76 it is contended that even at the stage of charge, the Court has to sift the evidence to see whether any charge is made out against the accused or not. Further the Court is duty bound to look at the material placed on record.

Relying upon State of Madhya Pradesh Vs. Sheetla Sahay and Ors. (2009) 3 SCC Crl. 901 the Court cannot ignore the material, which is in favour of the accused, at the stage of charge.

Hon‟ble Supreme Court in State of Orissa v. Debendra Nath Padhi (2005) 1 SCC 568. At the stage of charge Court cannot hold a mini trial. As held in N.Ramakrishna Ayyar through legal heirs Vs. State of Andhra Pradesh (2008) 17 SCC 83 and Hem

Chand v. State of Jharkhand (2008) 5 SCC 113 the Court will not delve deep into the matter for the purpose of appreciating the evidence and the stage to weigh the evidence would be when the entire evidence is brought on record.

The scope and jurisdiction of a trial Judge while framing a charge and while considering the application for discharge are now well-settled through a catena of the decisions of the Honourable Apex Court. In State of Maharashtra v. Priya Sharan Maharaj and others [(1997) 4 SCC 393], the Apex Court has held that while framing charge, the purpose is limited to find out whether a prima facie case is made out or not and at that stage, the court is not required to undertake an elaborate enquiry in sifting and weighing the material to arrive at the conclusion that it will not lead to conviction.

In Palwinder Singh v. Balwinder Singh and Others [(2008) 14 SCC 504], the Apex Court has held that marshalling or appreciation of evidence is not permissible at the stage of framing of charge. It is also relevant to note that in the decision reported in P.Vijayan v. State of Kerala and another [(2010) 2 SCC 398], it was held that the court is not a mere post office and also held that the court has no jurisdiction to see on the basis of the materials that whether the trial will end in conviction or acquittal.

IN CORRUPTION CASES KNOWN SOURCES OF INCOME MEANS KNOWN SOURCES TO PROSECUTION

In State of Maharashtra v. Wasudeo Ramchandra Kaidalwar (1981) 3 SCC 199 the Hon‟ble Supreme Court observed that the expression "known sources of income" occurring in Section 5(1)(e) has a definite and legal connotation which in the context must be the sources known to the prosecution and not sources relied upon and known to the accused. Their Lordships observed: "23. Even after Section 5(3) was deleted and Section 5(1)(e) was enacted, the Supreme Court in the case of State of Maharashtra v. Wasudeo Ram Chandra Kaidalwar : (1981) 3 SCC 199 has observed that the expression "known sources of income" occurring in Section 5(1)(e) has a definite legal connotation which in the context must mean the sources known to the prosecution and not sources relied upon and known to the accused. Section 5(1)(e) , it was observed by the Supreme Court, casts a burden on the accused for it uses the words "for which the public servant cannot satisfactorily account". The onus is on the accused to account for and satisfactorily explain the assets.

MALAFIDES AGAINST THE INFORMANT ARE OF NO CONSEQUENCE

In proceedings instituted on complaint, exercise of the inherent powers to quash the proceedings is called for only in a case where the complaint does not disclose any offence or is frivolous, vexatious or oppressive. If the allegations set out in the complaint do not constitute the offence of which cognizance has been taken by the Magistrate, it is open to the High Court to quash the same in exercise of the inherent powers under Section 482 of the Code. It is not, however, necessary that there should be meticulous analysis of the case before the trial to find out whether the case would end in conviction or acquittal. The complaint has to be read as a whole. If it appears that on consideration of the allegations in the light of the statement made on oath of the complainant that the ingredients of the offence or offences are disclosed and there is no material to show that the complaint is mala fide, frivolous or vexatious, in that event there would be no justification for interference by the High Court. When an information is lodged at the police station and an offence is registered, then the mala fides of the informant would be of secondary importance. It is the material collected during the investigation and evidence led in the court which decide the fate of the accused person. The allegations of mala fides against the informant are of no consequence and cannot by itself be the basis for quashing the proceedings. [See Dhanalakshmi v. R. Prasanna Kumar, 1990 Supp SCC 686, State of Bihar v. P.P. Sharma,1992 Supp (1) SCC 222, Rupan Deol Bajaj v. Kanwar Pal Singh Gill, (1995) 6 SCC 194, State of Kerala v. O.C. Kuttan, (1999) 2 SCC 651, State of U.P. v. O.P. Sharma, (1996) 7 SCC 705, Rashmi Kumar v. Mahesh Kumar Bhada, (1997) 2 SCC 397, Satvinder Kaur v. State (Govt. of NCT of Delhi), (1999) 8 SCC 728 and Rajesh Bajaj v. State NCT of Delhi, (1999) 3 SCC 259.]"

RIGHT TO A SPEEDY TRIAL

RIGHT TO A SPEEDY TRIAL
The Hon'ble Supreme Court Constitution Bench in a case of Abdul Rehman Antulay v. R.S. Nayak, (1992)1 SCC 225. By giving anxious consideration on the right to a speedy trial, a constitutional guarantee formulated as many as 11 propositions to serve as guidelines to ensure speedy trial.
1. Fair, just and reasonable procedure implicit in Article 21 of the Constitution creates a right in the accused to be tried speedily. Right to speedy trial is the right of the accused. The fact that a speedy trial is also in public interest or that it serves the societal interest also, does not make it any-the-less the right of the accused. It is in the interest of all concerned that the guilt or innocence of the accused is determined as quickly as possible in the circumstances.
2. Right to Speedy Trial flowing from Article 21 encompasses all the stages, namely the stage of investigation, inquiry, trial, appeal, revision and retrial. That is how, this Court has understood this right and there is no reason to take a restricted view.
3. The concerns underlying the Right to speedy trial from the point of view of the accused are :
(a) the period of remand and pre-conviction detention should be as short as possible. In other words, the accused should not be subjected to unnecessary or unduly long incarceration prior to his conviction;
(b) the worry, anxiety, expense and disturbance to his vocation and peace, resulting from an unduly prolonged investigation, inquiry or trial should be minimal; and
(c) undue delay may well result in impairment of the ability of the accused to defend himself, whether on account of death, disappearance or non-availability of witnesses or otherwise.
4. At the same time, one cannot ignore the fact that it is usually the accused who is interested in delaying the proceedings. As is often pointed out, "delay is a known defence tactic". Since the burden of proving the guilt of the accused lies upon the prosecution, delay ordinarily prejudices the prosecution. Non-availability of witnesses, disappearance of evidence by lapse of time really work against the interest of the prosecution. Of course, there may be cases where the prosecution, for whatever reason, also delays the proceedings. Therefore, in every case, where the Right to speedy trial is alleged to have been infringed, the first question to be put and answered is-who is responsible for the delay? Proceedings taken by either party in good faith, to vindicate their rights and interest, as perceived by them, cannot be treated as delaying tactics nor can the time taken in pursuing such proceedings be counted towards delay. It goes without saying that frivolous proceedings or proceedings taken merely for delaying the day of reckoning cannot be treated as proceedings taken in good faith. The mere fact that an application/petition is admitted and an order of stay granted by a superior court is by itself no proof that the proceeding is not a frivolous. Very often these stays obtained on ex-parte representation.
5. While determining whether undue delay has occurred (resulting in violation of Right to Speedy Trial) one must have regard to all the attendant circumstances, including nature of offence, number of accused and witnesses, the work-load of the court concerned, prevailing local conditions and so on-what is called, the systemic delays. It is true that it is the obligation of the State to ensure a speedy trial and State includes judiciary as well, but a realistic and practical approach should be adopted in such matters instead of a pedantic one.
6. Each and every delay does not necessarily prejudice the accused. Some delays may indeed work to his advantage. As has been observed by Powell, J. in Barker "it cannot be said how long a delay is loo long in a system where justice is supposed to be swift but deliberate". The same ideal has been stated by White, J. in U.S. v. Ewell, 15 Lawyers Edn. 2nd 627, in the following words : the sixth amendment right to a speedy trial is necessarily relative, is consistent with delays, and has orderly expedition, rather than more speed, as its essential ingredients; and whether delay in completing a prosecution amounts to an un-constitutional deprivation of rights depends upon all the circumstances. However, inordinately long delay may be taken as presumptive proof of prejudice. In this context, the fact of incarceration of accused will also be a relevant fact. The prosecution should not be allowed to become a persecution. But when does the prosecution become prosecution, again depends upon the facts of a given case.
7. We cannot recognize or give effect to, what is called the 'demand' rule. An accused cannot try himself; he is tried by the court at the behest of the prosecution. Hence, an accussed's plea of denial of speedy trial cannot be defeated by saying that the accused did at no time demand a speedy trial. If in a given case, he did make such a demand and yet he was not tried speedily, it would be a plus point in his favour, but the mere non-asking for a speedy trial cannot be put against the accused. Even in U.S.A., the relevance of demand rule has been substantially watered down in Barker and other succeeding cases.
8. Ultimately, the court has to balance and weigh the several relevant factors-'balancing test' or 'balancing process'-and determine in each case whether the right to speedy trial has been denied in a given case.
9. Ordinarily speaking, where the court comes to the conclusion that Right to speedy trial of an accused has been infringed the charges or the conviction, as the case may be, shall be quashed. But this is not the only course open. The nature of the offence and other circumstances in a given case may be such that quashing of proceedings may not be in the interest of justice. In such a case, it is open to the court to make such other appropriate order-including an order to conclude the trial within a fixed time where the trial is not concluded or reducing the sentence where the trial has concluded-as may be deemed just and equitable in the circumstances of the case.
10. It is neither advisable nor practicable to fix any time-limit for trial of offences. Any such rule is bound to be qualified one. Such rule cannot also be evolved merely to shift the burden of proving justification on to the shoulders of the prosecution. In every case of complaint of denial of Right to speedy trial, it is primarily for the prosecution to justify and explain the delay. At the same time, it is the duty of the court to weigh all the circumstances of a given case before pronouncing upon the complaint. The Supreme Court of U.S.A. too as repeatedly refused to fix any such outer time limit inspite of the Sixth Amendment. Nor do we think that not fixing any such outer limit in effectuates the guarantee of Right to speedy trial.
11. An objection based on denial of Right to speedy trial and for relief on that account, should first be addressed to the High Court. Even if the High Court entertains such a plea, ordinarily it should not stay the proceedings, except in a case of grave and exceptional nature. Such proceedings in High Court must, however, be disposed of on a priority basis.

P. Ramachandra Rao v. State of Karnataka, (2002) 2 SCC 578, the Hon'ble Supreme Court while holding that the guidelines laid down in Abdul Rehman Antulay case adequately take care of the right to speedy trial, observed as follows:- "guidelines laid down in A.R. Antulay case are not exhaustive but only illustrative. They are not intended to operate as hard-and-fast rules or to be applied as a straitjacket formula. Their applicability would depend on the fact situation of each case as it is difficult to foresee all the situations and no generalization can be made."

IT IS MANDATORY DUTY OF POLICE TO REGISTER FIR WHEN THERE IS COMPLAINT FROM SC/ST REGARDING THEIR LAND DEPRIVATIONS



PLAUSIBLE EXPLANATION ON THE SIDE OF THE PROSECUTION WITH REFERENCE TO THE INJURIES IS ENOUGH

Apex Court inKASHIRAM v. STATE OF M.P. (2002 S.C.C.(Cri)68) and RAM AVTAR v. STATE OF U.P. (2003 S.C.C.(Cri) 1404):
(I) Merely on the ground that the prosecution witnesses have not explained the injuries on the accused, the evidence of prosecution witnesses ought not to be rejected outrightly.
(II) The court ought to make an effort at searching out the truth on the material available on record with a view to find out how much of the prosecution case was proved beyond reasonable doubt and the approach of rejecting the prosecution case in its entirety for nonexplanation of the injuries sustained by the accused persons is erroneous.
(III) It cannot be held as a matter of law or invariably a rule that whenever the accused sustained an injury in the same occurrence, the prosecution is obliged to explain the injury and on the failure of the prosecution to do so the prosecution case should be disbelieved.
(IV) When the prosecution evidence is clear, cogent and creditworthy, the mere fact that the injuries are not explained by the prosecution cannot by itself be a sole basis to reject such evidence and consequently the whole case.

PRINCIPLES SURROUNDING RIGHT OF PRIVATE DEFENCE

While dealing with Sections 96 and 96 of I.P.C. and Section 105 of the Evidence Act, some principles have been given for appreciation of the said question by the Supreme Court. These principles have been laid down in JAMES MARTIN v. STATE OF KERALA (2004 S.C.C.(Cri) 437) and KASHIRAM v. STATE OF M.P. (200 2 S.C.C.(Cri) 68)The following are the principles to be borne in mind:
(1) Whether in a particular set of circumstances, a person legitimately acted in the exercise of the right of private defence is a question of fact to be determined on the facts and circumstances of each case. In determining this question of fact, the court must consider all the surrounding circumstances.
(2) It is not necessary for the accused to plead in so many words that he acted in self-defence. If the circumstances show that the right of private defence was legitimately exercised, then it is open to the court to consider such a plea.
(3) Under Section 105 of the Evidence Act, the burden of proof is on the accused, who sets up the plea of self-defence. In the absence of the said proof, it is not possible for the court to presume the truth of the plea of self-defence. The court shall presume the absence of such circumstances. It is for the accused to place necessary material either by himself adducing positive evidence or by eliciting necessary facts from the witnesses examined for the prosecution.
(4) Where the right of private defence is pleaded, the defence must be a reasonable and probable version satisfying the court that the harm caused by the accused was necessary for either warding off the attack or for forestalling the further reasonable apprehension from the side of the accused. The burden of establishing the plea of selfdefence is on the accused and the burden stands discharged by showing preponderance of probabilities in favour of that plea on the basis of the material on record.
(5) The number of injuries is not always a safe criterion for determining who the aggressor was. It cannot be stated as a universal rule that whenever the injuries are on the body of the accused persons, a presumption must necessarily be raised that the accused persons had caused injuries in exercise of the right of private defence. The defence has to further establish that the injuries so caused on the accused probabilise the version of the right of private defence.
(6) A plea of right of private defence cannot be based on surmises and speculation. While considering whether the right of private defence is available to an accused, it is not relevant whether he may have a chance to inflict severe and mortal injury on the aggressor. In order to find whether the right of private defence is available to an accused, the entire incident must be examined with care and viewed on its proper setting.
(7) To claim a right of private defence extending to voluntary causing of death, the accused must show that there were circumstances giving rise to rerasonable grounds for apprehending that either death or grievous hurt would be caused to him. The burden is on the accused to show that he had a right of private defence which extended to causing of death.
(8) The right of private defence is essentially a defensive right circumscribed by the governing statute i.e. I.P.C., available only when the circumstances clearly justify it. It should not be allowed to be pleaded or avail as a pretext for a vindictive, aggressive or retributive purpose of offence. It is a right of defence expected to repel unlawful aggression and not as a retaliatory measure. A right to defend does not include a right to launch an offensive, particularly when the need to defend no longer survived.

CASE LAWS ON THE NEGOTIABLE INSTRUMENTS ACT


Limitation. Period of 1 month for filing complaint will be reckoned from the day immediately following the day on which 15 days of receipt of notice expires. 1999 Crl.L.J. 1822 SC.

Discharge not maintainable. There is no provision for the summons cases to file an application for discharge under Sec. 245 Cr.P.C. that too after the witness have examined. 1999 Crl.L.J. 2236 Mad. (B).

IP not covered. Protection available under IP act does not cover proceedings under Sec. 138 NI Act. 1999 Crl.L.J. 2236 Mad. (A).

Recovery. Proper course should be filing a civil suit before civil court to recover money. 1999 Crl.L.J. 2136 Raj.

Abuse of process. Suppressing facts of pending revision, filing quash petition U/S 482 – Abuse of process of law. 1999 Crl.L.J. 2010 Mad.

Contempt. Filing petition to stall/stay judicial proceedings by suppressing material facts amounts to contempt of court. 1999 Crl.L.J. 2010 Mad.

Sec, 245 Cr, P, C. Section 245 Cr.P.C. is applicable to only warrant cases not for summons cases. 1999 Crl.L.J. 2010 Mad.

Notice – without time. Without mentioning any time in the notice if the complainant approaches the court after 15 days, the complaint is maintainable. 1999 Crl.L.J. 2010 Mad.

Notice in writing/fax. Notice through registered post as well as fax. Fax reached the same day – cause of action starts running – complaint filed after 15 days of receipt of registered post – not maintainable – should have filed within 30 days of receipt of fax notice. 1999 (2) CTC 354 SC.

Payment stopped/Account closed. Dishonouring cheque on ground that account was closed is consequence of act of drawer bringing his account to ‘Nil amount’ – such dishonour of cheque would attract Sec. 138 – Sec. 138 would become dead letter if instruction issued to bank to stop payment immediately after issuing cheque against debt or liability. 1999 (2) CTC 347 SC.

Documents of theft not necessary for 138. Documents relating to theft of cheque are held to be not relevant in criminal proceedings relating to dishonour of cheque. 1999 (2) CTC 298.

Complaint against insolvents – maintainable. Criminal prosecution against insolvents are maintainable, 1999 (1) CTC 687.

Accused – Power of Attorney not maintainable. Accused cannot appear through his power of attorney holder – Sec. 205 dispenses with personal attendance of accused – permitted through appear through counsel. 1999 (1) CTC 720.

Sec. 245 Cr.P.C. not maintainable after trial begins. After commencement of trial no discharge petition is entertain able. 1999 (1) CTC 527.

Sec. 256 Cr.P.C. Dismissal not warranted. Non appearance of complainant – acquittal hurriedly – no reasons stated in the order – disposal oriental orders condemned – orders set aside. 1999 (1) CTC 371.

Cheque as security – invalid. Cheque issued as security for advance amount – No liability subsisting on date of execution of cheque – prosecution U/S 138 will not maintainable. 1999 (1) CTC 6.

Unregistered firm. Complainant cannot be compelled to implead an accused that is unregistered firm. 1998 (2) CTC 282.

Cause of action arises only once. Once notice issued and accused failed to pay the amount within 15 days, the cause of action arose, and complaint has to be filed. No notice 2nd time can be issued. Any number of times cheque can be presented for collection, but notice only once can be issued. 1998 (2) CTC 462.

Partners not liable. Partners who are not responsible for day today affairs of firm need not be arrayed as accused. Since they are only sleeping partners, they are not liable to be tried. 1998 (2) CTC 548.

Demand of more amount than cheque. Statutory notice demanded more amounts then cheque is valid. 1998 (2) CTC 548.

Amendment. Description of accused mentioned wronging complainant is allowed to amend the same. 1998 (2) CTC 372.

Return memo – Limitation. Return memo dated 26-12-1992 is received by holder in due course after ten days. Notice dated 11-01-1993 is valid. 1998 (2) CTC 282.

Public holiday. Cheque dated 22-04-1996 – Cheque presented on 22-10-1996, since 21-10-1996 is public holiday – cheque is valid. 1998 (2) CTC `165.

Stop payment – not a ground. Stop payment – no ground to hold that payees are not guilty. 1998 (2) CTC 165.

Legal heir – valid. Death of complainant will not terminate proceedings U/S 138 NI Act. Complainant’s presence not necessary – legal heirs can be impleaded. 1998 (2) CTC 647.

Time in notice – not necessary. Mentioning of any period in notice within which payment of cheque is to be made – not necessary. 1998 Crl.L.J. 2309 Raj.


Authorization to company – not necessary. Complaint filed by company – objection that no authorization given by company to director – plead rejected – The person who is in charge and responsible for conduct of the business of the company can file. 1998 I LW 354.
One month – Definition. Definition ‘one month’ in Sec.3 (35) of General clauses act to be followed and hence it cannot be restricted to period of 30 days – ‘one month’ – in Sec.142 refer to calendar month (Jan,29,30,31 X Feb.28/29). 1998 I LW (Crl) 264.

Allegations on partners must. To bring persons within the purview of Sec. 138 NI Act there must be an allegation prima facie disclosing of commencement of offence of directors or partners. 1998 I LW 24.

Holidays acceptable – Company not necessary M.D. enough - Plea that presentation of cheque about 6 months 2 days after its issue and complaint not sustainable – rejected. Intervening of period of public holidays on the day of expiry of cheque to be excluded Under section 25 – company functions through human agency. Hence, M.D., in individual capacity cannot escape from his liability – complaint maintainable. 1998 II LW (Crl) 6111.

Re-agreement – compensation – There was an agreement between parties hence section not attracted – plea rejected – time imposed and compensation to complainant granted. 1998 II LW (Crl) 621.

Good used/plea goods not good – stop payment – Acquittal of accused that communication to stop payment – acquittal set aside. – Having consumed almost entire materials, the stop payment instruction to bank, can under no stretch of imagination protect the respondent from liability U/S 138. 1998 II LW (Crl) 637.

Security – plea that cheques were issued only as security and unless the sale transaction of the property is completed the petitioner is not liable to make any payment – rejected. 1998 II LW (Crl) 640.


Section 245 Cr.P.C., not maintainable Under Section 138 N.I. case (finding) 1998 II LW (Crl) 640.

Deemed Notice – deemed notice can be constructed as receipt contemplated under Section 138. 1998 Crl.L.J. 3903. (Mad).

Abatement – Proceedings does not abate on death of payee – power agent is legal. 1998 Crl.L.J. 3870 (Mad).


Stop payment – Presumption under Section 139 in favour complainant – notice to stop payment would not preclude action U/S 138 by draw. 1998 Crl.L.J. (SC) 1397.

Silent partner – Complaint against person who is not responsible for conduct of business company – not maintainable. 1998 Crl.L.J.(Raj) 3525 D.

Jurisdiction – Acquittal on the basis of jurisdiction alone not proper. Complaint should be returned for presentation before proper court. 1998 Crl.L.J. (Ker). 2755 B.

Alternation – Incerstion of date can be presumed as inserted with implied consent of drawer – presumption not rebuttal – cheque not void. 1998 Crl.L.J. (Ker) 3228.

Section 20 – Suit on promissory note – signature admitted – pronote can be wholly or partly blank – dismissal not proper. 1998 Mad 23.


Limitation – Section 13 NIA – Notice served on 1 September – complaint filed on 16 September – complaint not prematured. 1998 Crl.L.J.559(A) Guj.


Endorsement - Endorsement not liable. 1991 MWN II 237.


Civil suit cannot be stayed pending criminal prosecution – criminal cases can be stayed by civil court only rarely when compelling circumstances exist. 1996 II CTC 21. (SC).
Incorporation of recitals about chit transactions in promissory note is mandatory requirements – If any time fixed for payment than payment could be demanded only after that period. 1997 I CTC 284.
Section397-Revision-Neither second revision U/S 397 nor quashing petition can be maintained by unsuccessful person in revision before Sessions court. 1997 II CTC 567.
6 cheques – single complaint – valid. Dishonour of six cheques – single complaint –
maintainable. 1997 II CTC 567.

Power agent substituted maintainable – Company can be represented by person authorized afresh – Power agent can be substituted. 1997 II CTC 675.

Imprisonment alone to be suspended by High court but not both imprisonments and fine. 1998 L.W. (Crl) 239.

Holder in due course – Execution proved – legal presumption would arise that consideration was passed on at time of execution – claim that assignee was not holder in due course – No evidence – claim rejected. 1997 AIR Mad 1 (S.118 NT Act)

Notice unclaimed - has to be proved by complainant at the time of trial. 1993 I MWN 336 = 1998 SC 630.

Notice to firm enough – Complaint against the firm – Notice need not be sent each partner – to firm itself sufficient. 1998 Crl.L.J. 43 (B) AP.

Mere advance information not to present cheque without making arrangements for funds not valid. The notice must contain legal tenable reasons. Otherwise Section 138 NI Act will attract. 1998 Crl.L.J.10 (B) Guj.

Complaint against company – Allegation against directors not necessary. 1998 Crl.L.J. 10(C) Guj.

Charge against accused directors of company necessary in a complaint against company. 1998 I LW (Crl) 24.

Accused not entitled for documents but for copy of complaint alone 1998 I LW (Crl) 1. Karpagavinayam J.

Section 420 IPC can be clubbed. Section 420 Indian Penal Code can be clubbed with complaints filed Under Section 138 of NI Act. 1993 Crl.L.J. 2196.

Account closed – All cheque leaves should be returned otherwise closed Account is deemed to be alive. Clearly attracts Section 138 NI Act. 1996 Crl.L.J. 1816.

Presumption is that the cheque is issued to discharge debt – Accused has to prove contra. 1996 Crl.L.J. 681.

Date of issue immaterial. 1992 Crl.L.J. (P&H) 1044.

Enquiry Under Section 202 Cr.P.C. necessary. 1997 I LW (Crl) 411.

Manager of firm can file the complaint. 1997 I LW (Crl) 297 = 1992 3 Crimes 1094.
Jurisdiction to two courts – presented to one court in time is valid. 1997 MLJ (Crl) 288.
Legal notice given from branch office is also a place where cause of action arose. 1997 I LW (Crl) 205.

Power of attorney, payee or holder in due course can file the complaint. 1997 II LW (Crl) 637.

Enquiry is necessary before issuing process – detailed order should be made with reasoning. 1997 MLJ (Crl) 270.

Cheque returned – notice issued – case not filed within time – again same procedure is valid – continuing offence. 1997 MLJ (Crl) 525 (Kar) HC. Reversed 1998 CTC II SC 462.

Compounding cannot be done in 138 cases. 1996 Crl.L.J. 135 (Ker).

Money lender covered U/S 138 NI Act. 1996 I Crl.L.J. (AP) 636 (A).

Mens rea not necessary. 1996 I Crl.L.J. (AP) 636 (B).

Power agent can file a complaint. 1995 I Crl.L.J. 1102.

Company need not be added as party to the proceedings . 1995 I Crl.L.J. 1102 (followed AIR 1984 SC 1824 – Criminal case)

Averments against company not necessary. 1995 II Crl.L.J. 2306. Over ruled 98 LW (Crl) 24.

Accused can ask for discharge in Section 138 cases (finding Para 4). 1996 II LW (Crl) 690.

Consideration can be past, present or future promise to deliver goods in future is liable. 1996 Crl.L.J. (Guj) 3099 B (Para 10).

Signatures differ in acknowledgement card from cheque – plea rejected. 1996 Crl.L.J. (Guj) 3099 (B).


Entire body need not be written by drawer. 1996 Crl.L.J. (Guj) 3099 (C).

Proceedings against or for proprietor concern cannot be initiated. 1996 Crl.L.J. (Guj) 3099 (A).

Complaint can be filed at either place of issuance or dishonour. 1996 Crl.L.J. (Ker)
2395.

Burden of proof is on accused. 1996 Crl.L.J. (Mad) 3387. (A) (C).

Averments regarding jurisdiction not must. 1996 Crl.L.J. (Kar) 2264. (C).


Without signature of Advocate – notice is valid. 1996 Crl.L.J. (Kar) 2264 (A).

Notice to reasonably correct address is sufficient. 1996 Crl.L.J. (Ker) 1013.

Service of notice – deemed notice is sufficient. 1995 II MLJ 35 (SN).


Dismissed complaint cannot be taken back if reasons for absence not explained. 1996 I LW (Crl) 221.

Complainant absent hence dismissed. Can be taken back if the reasons explained (Against if reasons not stated). 1994 II L.W. (Crl) 761.

Burden of proof on the part of the accused. 1996 Crl.L.J. (Mad) 3387.

Burden of proof on the part of the accused. 1996 I LW (Crl) 320.

If notice given as not to present the cheque for collection before it’s presentation – Section 138 will not be attracted. 1996 I LW (Crl) 325. (SC). REVERSED 1998 SCC III 249 A.

Account closed can be taken for file. 1995 Crl.L.J. (Mad) 1882 (B).

Cause of action arose any number of times on the same cheque. 1995 Crl.L.J. (Kar) 1384.

Notice return as “Not found” – Notice not served hence demand not made, acquitted. 1995 2 LW (Crl). Arumugam J.

Discharge of accused – entitled for discharge on merits in 138 case – remanded. 1995 I LW (Crl) 277. Rangasamy J.

Limitation for representation – If the return is by time limit it deemed to be with in the custody of court. 1995 I LW (Crl) 300.

Plea of failure to mention date of dishonour in statutory notice is rejected. 1995 I LW (Crl) 264. Janarthanam J.

Without impleading company as accused – not maintainable. Section 319 Cr.P.C., for Impleading any other person as co accused will not have effect of curing the infirmity.. 1995 I LW (Crl) 132. Rangasamy J.

Cheque is not negotiable after being dishonoured, it cannot be endorsed again. 1989 I LW 401.

Refer to drawer – Insufficiency of funds, exceeded the arrangement – questions involved determination on evidence without having come on record it will not be appropriate for the petitions to invoke the inherent powers of quash. 92 MWN II 184.

Account closed can also be taken for file. 1994 LW (Crl) 663.

Account closed will not attract Sec. 138 of NI Act. 1991 LW (Crl) 576.Contra

Account closed etc., has to be proved at the time of trial cannot quash at this stage – AP High court. 1993 MWN (1) 251.

Power of attorney can file complaint U/s 138 NI Act. 1994 TNLJ 42.

Signature difference – Merely because of some part was written by somebody other than the signatory, the cheque could not be said invalid. AIR 1993 Kar 334.

Refer to drawer. Amounts to insufficient funds – Limitation falls on holiday – it can be filed next working day. 1994 LW (Crl) (1) 51.

There is nothing in the 138 that the payee alone can take action. Holder in due course also can take action. 1994 TNLK 30.

Any one or more or all partners with firm may be prosecuted . 1994 I LW (Crl) 262. Page 263 (6th Para end).

Absence of any averment about the power of attorney, he cannot file the complaints. 1994 I LW (Crl) 337.

Company should also be added as party. 1988 SC 1123.

Firm should be arrayed as part otherwise the Section 141 is not complied with. 1994 I LW (Crl) 135.

Post Anti date cheques are valid – Post dated cheques deemed to be drawn on the date it bears. 1994 TNLJ SC 8 = 11994 TNLJ SC 30.

Praying for issue of summons under 420 IPC in the course of 138 trial – rejected. 1994 LW (Crl) 55.
Dismissed for default – On the ground of absence of complainant, again cheque presented – again same procedures – complaint can be taken for fresh cause of action. 1994 LW (Crl) 53.


Power of attorney agent is virtually the payee himself or holder in due course. 1994 LW (Crl) 34.

Cheque can be presented any number of times within its validity – There is no infirmity in it. 1993 LW (Crl) 627.

“For the discharge in whole or in part of any debt” – Absence of such averment the complaint is ought to be quashed. 1993 LW (Crl) 600.

Acquittal Under Section 256 of Cr.P.C., - Valid, if no reason is assigned for the absence of the complainant – revision dismissed. 1992 (2) MWN .

Stop payment will not affect the case before it is proved that sufficient funds are in account. 1992 (2) MWN.

There is no bar for presentation of the cheque at a later point of time also and if it is was dishonoured certainly the offence is made out. 1992 MLJ (Crl) 618.

Sole proprietary concern – impleading of the company is not necessary – plea that failure to implead the company as accused will vitiate the prosecution, rejected. 1993 LW (Crl) 273.

Cheque presented to bank for collection on various dates and returned as “insufficient funds” – plea that 142 contemplates only a single cause of action – rejected. 1993 LW (Crl) 270.

Expiry of 45 days time – Bar of limitation where the complaint is filed after expiry of 45 days from the date of return of the notice. 1993 LW (Crl) 105.

Refer to drawer – This and other contentions involved on evidence to be adduced and the matter cannot be decided on a petition to quash the proceedings. 1992 LW (Crl) 536.

Payment stopped – Duty of the complainant to include necessary averments as would disclose an offence on a reading of the complaint – failure to make the same – proceedings liable to be quashed. 1992 LW (Crl) 367.

Payment stopped – Allegations that the accused did not have sufficient funds will bring the complaint under Section 138. The allegations have to be proved only at the time of trial and proceedings cannot be quashed at this stage. 1992 LW (Crl) 307.


Evasive of notice – The deliberate evasion of receipt of registered notice would be a constructive service. 1991 LW (Crl) 576.

Proceedings in 1st occasion of dishonour, if not taken it is not a bar of limitation of the same subsequently. 1991 LW (Crl) 481.

Notice in writing is need not necessarily be only by a registered post and it can be as well as by telegram or by a letter. 1991 LW (Crl) 468.

Proprietor concern – Proprietor himself is enough for prosecution – His concern need not be added as party. 1991 LW (Crl) 347.

Company should be added – Unless the company is made an accused the M.D. and others cannot be made as accused. 1991 LW (Crl) 513.

Suit based on a promissory note instituted by a nationalized bank claming interest at the rates higher than the rate mentioned in promissory note – Interest of higher rate. Held can be allowed, only when it is agreed to by the debtor – Directives of Reserve bank to the nationalized bank not relevant. 1990 I LW. 1. Syndicate Bank, Pollachi Vs. Muthaiyan and another.

Imperfect notice – cheque amount not mentioned in notice - Notice was for loan amount – Not for cheque amount – Loan amount and cheque amount is different – demand for amount covered by bounced cheque is absent in notice - demanding other than cheque amount will not make the notice invalid – but demand for cheque amount should be made clearly. 2003 (4) CTC 252 (SC)..

Claming more than cheque amount in notice – not invalid – Claiming Rs.300/- i.e., cost of notice other than cheque amount will not be ground for quashing the complaint. 2003 (4) CTC 76.

Discharge maintainable in 138 cases – It is true that discharge does not arise in a summons case. But even if the petitioner prays for discharge in such cases we cannot give a restrictive meaning to the word discharge, instead we can interpret if as dropping the proceedings against them. (As charges could not be framed in summons cases, the question discharge does not arise). 2003 Crl.L.J. 4373.


Cheque limitation – Calendar month definition – date of cheque cannot be excluded. 98
Crl.L.J. 4330.

Initial defects in complaint cannot be amended. 2000 (1) Crimes 113 = 83 SC 67.


Accused managing director did not let in evidence – rebuttal let in evidence – not rebutted. 2003 (4) CTC 628.

Stop payment – Mere stop payment will not absolve the offence. 2003 (4) CTC 628.

Relationship – Relationship between parties in irrelevant. 2003 (4) CTC 628. (Contra to) Notice to not to present cheque for collection – Section 138 will not attract. (1992 (2) SCC 739 (Para 22) – Negatived.

Period of offence – The transaction took place in 1993 – Section 138 as stood at that time would be applicable to present case. 2003 (4) CTC 628.

Sentence – Sentence – double cheque amount to be payable within one month in default 6 months simple imprisonment. 2003 (4) CTC 628.


Absconder -Proclaimed offender - Accused failed to appear before court – Wife and children refused to give his whereabouts. – In such circumstances accused has to be treated as absconder – accused left country – even then he is absconder. 2003 (2) CTC 17.

Present again – stop payment – attracts 138 – provisions where incorporated with the object of inculcating faith inefficacy of banking operations – 2003 (1) CTC 752 SC.

Inferior goods – invalid plea – accused should let cogent evidence – accused would have intimated complainant about rejection of goods by end user and would have asked to take goods back – accused should true that stop payment notice given for other valid causes. 2003 (1) CTC 282.

Partner – definition – person in charge – person in charge must mean that the person should be in over all control of the day today business of the firm – he should be a party to the policy being followed by the company and yet not in charge of the business of the firm – offence must be proved was committed with the knowledge and connivance of the accused. 2003 (1) CTC 127 SC.

Promissory – promissory must be in writing and there should be unconditional undertaking to pay. 2003 (1) 36.

Section 204 Cr.P.C. not maintainable after examination of witness begins. Sections 245 applicable only for warrant cases not for Sec.138 NIA. 2002 (4) CTC 335.

Notice - returned unclaimed - again send to another address after 15 days – valid – complainant sent notice on 29-05-1999 – returned on 09-06-1999 as unclaimed - complainant on coming to know that accused was available else where sent copy of same notice on 24-06-1999 – period of limitations start after 15 days from second. 2002 (4) CTC 335.

Holder in due course – cheques endorsed after dishonour – valid – (against 2002 (3) CTC 424) 2002 (4) CTC 323.

Quash not liable – After examination of PW1 –person accused of offence under Section 138 NIA filed petition to quash proceedings after examination of PW! On 2 different dates – not sustainable. 2002 (4) CTC 323.

Complaint by manager of firm – valid – manager can represent firm – valid complaint. 1997 (2) CTC 478.

Vice-president – no role in business – not liable – petitioner who is vice-president of company but has no role in conducting business need not be arrayed as accused. 1997 (2) CTC 524.

Authorization afresh valid – authorization -need for substitution to represent company – filing of complaint - authorised resigning from company – company can be represented by person authorized afresh. 1997 (2) CTC 675.

Pronote – chit transaction-mentioning mentioning mandatory – incorporation of recitals about chit transaction in promissory note is mandatory requirement. 1997 (1) CTC 284.
Partner or not is matter for trial cannot be discharged. 1997 (2) CTC 293.

Complaint without sign of complaint – presented after limitation – complaint invalid – quashed. 1997 Crl.L.J.2432.

Complaint made in the name of complainant but signed by power agent – complaint invalid. 2002 Crl.L.J.2621 AP.

No averments against directors – summons quashed. 2002 Crl.L.J.3053.HP.
Accused successfully rebutting presumptions at initial stage – proceedings can be quashed at thresh hold. 2002 Crl.L.J.3469 Guj.

Petitioner failed to produce any document to so that she is not direction of company – cannot quash. 2002 Crl.L.J. 3320 AP.

All the directors need not be arrayed as accused – unless specific allegation against them. 2002 Crl.L.J. 3291 Ker.

Signature differs – accused admitted – accused admitted his liability Under Section313 statement – no reply to notice also - but the signature available in cheque not that of accused – no proof of issuance of cheque – accused cannot be convicted. 2002 Crl.L.J. 3255 Ker.

Notice issued after 15 days of return is illegal – delay cannot be condoned by Sec, 473 Cr.P.C or Sec. 5 of Limitation Act. 2002 Crl.L.J. 3219. Del.

Cheque issued in favour of A1 to A3 by A4 and A5 – A1 to A3 discounted the cheques with complaint bank – no legally enforceable debt between complaint and accused – complaint under Section 138 NIA not valid. 2002 Crl.L.J.31993 AP.

Notice- letter written by complainant can be construed as notice under Section 138 NIA.-Complaint can be filed on 16th day –2002 Crl.L.J. 3001. Bom.

All the directors need not be added as party. 2002 Crl.L.J. 2760 Del.

Absence of mens rea should be proved by accused. 2002 Crl.L.J.2731 B.

Notice need not be sent through registered post – notice/letter sent under certificate of posting – presumed to have received by accused. 2002 Crl.L.J.2731 A. AP.

Prima facie evidence – cannot be quashed – clear averments in complaint – prima facie evidence that accused was Chairman at the time of issuance of cheque – matter for trail – cannot be quashed. 2002 Crl.L.J. 2462 Mad.

Cheque not in individual account – 138 will not lie – petitioner as owner of company borrowed loan for company – liable to repay - cheque not in case individual account – he is neither director nor looking after dismiss – Sec. 138 will not attract – seeks civil remedy. 2002 Crl.L.J. 236 AP.

Notice through telegram – no confirmation letter sent – telegram cannot be a statutory notice. 2002 Crl.L.J. 185 Mad.

MOU subsequent to issuance of cheques will not superseded cheques issued earlier. 2002 Crl.L.J.172 B.

Allegation in complaint that M.D. and director issued cheques to cheat complaint knowing fully well that they do not have sufficient funds -–complaint cannot be quashed. 2002 Crl.L.J. 172 A. AP.

Complaint by manager – valid – managing director empowered to file complaint himself – authorizing manager to file complaint – valid. 2002 Crl.L.J. 3502 Ker.

Complaint by manager – valid – complaint filed by manager of company – matter for trial – not liable to be quashed. 2002 Crl.L.J. 171 AP.

Income Tax verification – Rs.20, 000/- or more should be paid by account cheque – borrower alone is liable- thus the borrower as a class is found to be indulging in such practices – it is the borrower who was found to be evading payment of tax. Compared to the class containing of lenders, the class of borrowers can be said to be in a position evade tax by adopting by devices. 2002 SC 2188.


Sentence with fine or compensation alone valid – not all – when sentence imposed on accused consists of imprisonment and fine – accused cannot be directed to pay compensation when sentence included fine as form part. 2002 (3) CTC 703 SC.


Guarantor liable – expressions ‘any cheque’ “other liability” occurring in Section 138 indicate legislative intend that cheque issued by guarantor in discharge of debt owed by principle debtor – guarantor cannot escape criminal liability. 2002 (3) CTC 572 SC.
Remission not applicable to NIA – with regard to offences committed under central enactment (NI Act), central Government is appropriate government to grant remission – remission granted under state government order would not apply to offence under Section 138 NIA. 2002 (3) CTC 616.

Burden of proof on defendant – if admits signature – Under Section 20 the holder in due course is entitled to fill up the blank pronote – no plea no evidence can be let in – defendant admitted his signature hence burden of proof on him. 2002 (3) CTC 598.
Dishonour cheque cannot be endorsed - cheque losses its negotiability after it is dishonoured on being presented for payment - cheque in favour of R – R endorsed in favour of P – P presented for collection – returned – P returned cheque to R – R filed complaint – complaint not maintainable. (Against 2002 (4) CTC 323). 2002 (3) CTC 474.

Absence of necessary averments in complaint – directors discharged – mere allegation that directors are responsible for failure to make payment of cheque amount is not sufficient for proving offence Under Section141 (2) – not enough. 2002 (3) CTC 342.

Complaint under Section 420, 406, 468 by complainant that the cheques in blank issued to accused are - Criminal breach of trust, etc., - FIR quashed. 1999 (8) SCC 468.
No averment – directors not liable – quashed. 2002 Crl.L.J. 478 Ker.

Joint complaint in valid – joint complaint by 2 or more persons in respect of different cause of action and different offence – not maintainable – under Section 200 of Cr.P.C. 2002 Crl.L.J. 481. Ker.

Allegation – enough role of partner not necessary - making specific allegation in complaint about active participation of day today affairs – sufficient – not necessary to allege about duties discharged by accused. 2002 Crl.L.J. 642.



List of witness – not file – non-compliance of mandatory provision of Section 204 (2) – order issuing summons – set aside – directed to file list of witness. 2002 Crl.L.J. 1926 Kar.

Notice returned – left not known – deemed service - contra should be proved at trial. 2002 Crl.L.J.1926 Kar.

Post dated cheque – drawn on date it bears – post dated cheque shall be deemed to have drawn on date it bears as per Supreme Court decision in 93 Crl.L.R. (SC) 739 - 2002
Crl.L.J. (NOC) 156 Raj.

Additional evidence under Section 391 Cr.P.C. valid – if not full up lacuna – accused plead cheque was issued in respect of time bared debt – complainant filed petition under Section 391 Cr.P.C., for permission to adduce additional evidence to show that earlier cheques had been issued by accused within 3 years within limitation – the said cheques where in existence at the time of cross examination by accused before trial court – no filling up of lacuna – petition valid. 2002 (3) CTC 161.

Amendment of pleadings - Order 6, rule 17 - central rule is that a party is not to be allowed to set up a new case or a new cause of action particularly when suit on new cause of action is barred – negligence of party or lawyer or mistake in setting out the case can be corrected – remission allowed on costs of Rs.5, 000/- each two bar association and advocate association to procure law books to their library. 2002 (3) LW 123.
Stop payment – attracts 138. 2002 (3) CTC 96.

Notice returned as intimation served – deemed service accused has to prove non-service if any. 2002 (3) CTC 96.

Different ink – not valid plea – using of different ink need not necessarily mean that document is altered. 2002 (2) CTC 203.

Sleeping partner – not liable – non-mentioning of Section 245 not fatal. 2002 Crl.L.J. 1994 .P&H.

Notice returned as not claimed – deemed service – compensation to state – not proper – no procedure in code for it. 2002 Crl.L.J. 1712 Ker.

Proprietor concern not legal entity – proprietor concern is not legal entity or judicial person - case against – not maintainable – but against proprietor maintainable. 2002 Crl.L.J. 1689 Mad.

Blank pronote filed by holder – valid – inchoate instruments – Section 20 enables holder of instrument to fill up the blanks and negotiable instruments which are duly signed by drawer and deliver to holder – promissory note which did not contain writing of drawer but executed by drawee held to be valid. 2002 (2) CTC 140.

Presumption under Section 139 and 118 – rebuttal by proof and not by explanation – once facts necessary for raising presumption is established – court has no option but to raise such presumption in favour complainant which is of course rebuttal buy accused – rebuttal should be by proof and not by explanation. 2002 (1) CTC 530.

Name mis spelled in cheque – not invalid – name of payee and complainant differently spelled – return not on that ground – valid. 2002 (1) CTC 530.

Enhancement valid – court-exercising revisions jurisdiction could enhanced sentence. 2002 (1) CTC 530.

Summoning of records in appeal – invalid – at the appeal stage it is unnecessary to summon for records. 2002 (1) CTC 530.

Additional evidence in appeal – valid – appellate court can permit adducing of additional evidence if necessary – reasons to be recorded. 2002 (1) CTC 530.

Power agent – valid – complaint filed by power agent – complainant examined himself as witness valid. 2002 (1) CTC 530.

Compensation - Twice cheque amount - Section 29 Cr.P.C., bar will not applicable to High Court – sentence enhanced by directing accused to pay twice cheque amount as compensation and cheque amount directed to be paid to the complainant. 2002 (1) CTC 530.

Alteration of date - valid – cheques of year 1995 – dishonour – later by agreement drawer corrected the year as 1996 and made necessary endorsement – valid under Section 138 – even if the payee of the cheque altered the cheque validating or re-validating the same with the consent of the drawer valid. 2001 (4) CTC 570 SC.

Borrowal 4 years back – cheque now – valid. Plea of drawer that cheque was issued in respect of time barred debt incurred 4 years prior to issuance of cheque – hence no liability – plea rejected – balance sheet of payee so the balance year after year gives fresh period of limitation. 2002 (1) CTC 484 SC.

Section 138 not made out then Section 420 IPC can be drawn – quashing of complaint under Section 138 and 141 of NI Act – complaint dismissed by magistrate – High Court directs to take cognizance under Section 120-B and 420 IPC – valid. 2001 SC 3512.
Deliberate suppression of account books – the defendant discharged burden under Section 118. 1991 MLJ 183.

Sentence in default of compensation – valid – Supreme Court observed that Section 431 Cr.P.C., only prescribed that any money (other than fine) payable by virtue of an order made under the court shall be recoverable as if it were fine – proviso to Section 431 states that if sentence directs that if that such offender shall be imprisoned in default of payment of fine and etc., Hence order directing imprisonment in default of fine is valid. 2002 (1) CTC 315 SC.

Quantum of sentence – if amounts had been so paid there would have been justification for plead by sentence – sentence awarded should be such nature to give proper effect to object of legislation – no drawer of cheques can be allowed to take dishonour of cheques light heartedly. (Reversed the Madras High Court Judgement 2001 (2) CTC 595). 2002 (1) CTC 315 SC.

High Court should follow Supreme Court Judgment – also all courts in India – it is not only matter of discipline but also mandate of constitution as under Section 141 that law declare by SC shall be binding on all courts within the territory of India. 2002 (1) CTC 315 SC.

Director retired – not liable – form No, 32 also file with registrar of companies on 04-10-1999 – who ceased to be director on 04-10-1999 shall be deemed to be resigned from date of resignation i.e., before the commencement of transaction – complaint quashed against the said director. 2002 (1) CTC 227 = 2001 (2) CTC 78.

Stop payment without valid reasons attracts Section 138. 2001 (4) CTC 749 SC.
It is settled law that threshed hold High court is not justified in embarking upon enquiry as to reliability genuineness or otherwise of allegations made in complaint. 2001 (4) CTC 749 SC.

Complaint by Regional manager – Substitution subsequently - valid - No magistrate can insist that person whose statement was taken on oath at first instance alone can continue to represent the company till end. 2001 (4) CTC 749 SC.

Notice first on 29-08-1996 – Secondly on 07-09-1996 – same copy – valid – service of notice complainant sent notice on 29-08-1996 returned with endorsement as party not available and not claimed on 07-09-1996 – complainant sent very same notice dated 29-08-1996 with covering letter on 07-09-1996 – accused proceed to same on 09-09-1996 – date of sending of notice has to be construed as 29-08-1996 – 09-09-1996 has to be taken as actual service – there is no second cause of action and it cannot be said that notice was sent beyond limitation period. 20101 (4) CTC 617.

Judicial notice – Gazette notified – retirement valid – discharge petition allowed – dishonoured of cheque – complaint filed against person who had retired from partnership – retirement notified in gazette w.e.f. 13-09-1998 – cheque dated 31-12-1998 – trail court dismissed the discharge petition – High Court set aside order of trail court and discharged petitioner as his retirement as notified in gazette did not required any further proof – it is not necessary for petitioner to face trial. 2001 (4) CTC 399.

Drawer of cheque alone liable – even it is true that the cheque was issued by the first accused towards the discharge of the liability of the petitioner/second accused company. Still the 2nd accused company cannot be prosecuted as it is not the drawer – Hence the proceedings against the petitioner/2nd accused which not the drawer is quashed. 2001 (4) CTC 278.

Fine of Rs.65, 000/- by JM confirmed by SC – after the trial JM II, Kumbakonam convicted the accused U/S 138 and directed payment a fine of Rs.65, 000/- in default simple imprisonment for one year - the accused granted one month time to pay the fine – directed by the SC. 2001 (4) CTC 382 SC.

Onus of proof on accused U/S 118 and 139 of NIA Defense evidence must – Presumption to consideration – onus of proof regarding absence if lawful debt or liability – burden of proving that cheque had not been issued for debt or dues liability is on accused – formal denial by accused was held erroneous – accused did not let in evidence to prove absence of debt or liability - –conviction confirmed. 2001 (4) CTC 3282 SC.

Partners not mentioned in form A – not liable – Discharge maintained – Prosecution against person who is not parties – form “A” does not reflect name of revision petitioner as partner at relevant point of time – High court discharged petitioner relying on entry in form “A” as it is public document and Judicial notice can be taken. The petitioner filed an application for discharge from the case. It was rejected by the trial court – HC discharge the accused in revision. 2001 (4) CTC 354.

Liability by company – cheque by employee loan Account – company not liable – Financial liability of company – employee of company issuing cheque in his individual capacity to discharge liability to company – company and employee both arrayed as accused – proceedings against company quashed. 2001 (4) CTC 278.

“Holder” definition – Pay order issued by Co-operative Bank in favour complainant bank on account of their customer – complainant bank got assignment of such instrument – Holder means any person entitled in his own name to possession of cheque and to receive or recover amount from parties there to – complaint bank was also holder in due course as they become possessor of pay order before it became payable. 2001 (4) CTC 183 SC.
Drawer/Drawee – Same person – 138 lies – Bill of exchange must direct certain person to pay particular sum of money – three persons are not absolutely necessary to constitute bill of exchange – Phrase directing certain person to pay need not necessarily refer to third person – Drawer and drawee in bill of exchange could be same person. 2001 (4) CTC 183.

Pay order lies U/S 138 – Co-operative bank true pay order agreeing to pay complainant bank on account of particular customer – complainant bank got pay order assign to its name from customer – complainant bank presented such pay order and it was returned dishonoured for want of funds – pay order is either bill of exchange or promissory note – holder of such instrument is entitled to treat it as either bill of exchange or promissory note in terms of Sec.

17 of NIA – Complainant bank having elected to treat pay order as cheque, such pay order becomes cheque. 2001 (4) CTC 183 SC.

Magistrate can consider offence U/S 420 IPC (if not U/S 138 NIA) - Magistrate refusing to take cognizance of offence U/S 138 – HC on revision up holding order of Magistrate but remanding matter to consider U/S 420 IPC – Magistrate can take cognizance after enquiry. 2001 (4) CTC 189 SC.

Notice to company enough – Debt includes others liability also – Notice to company enough – Debt or other liability includes due from other than drawer. 2001 Crl.L.J. 2392 (A) Mad.

Joint A/ C – return as “signature required from another director” – 138 lies. Cheque returned as ‘account operation jointly. Another director signature required’ – Amounts to dishonour. 2001 Crl.L.J.2297 (A) Bom.
Earlier cheque for bill discounting not valid for subsequent HP transaction – Blank cheques issued for “bill discounting facility” Subsequently accused issued another set of cheques for hire purchase agreement – earlier cheques cannot be used for this. 2001 Crl.L.J.1585.

Non giving of reply notice will not grand for conviction. 2001 Crl.L.J.1585.
Sec.420 is valid even after Sec.138 is introduced. 2001 Crl.L.J.1489 (B).
Registration from firm should be proved in trial only. 2001 Crl.L.J. 2945 (D).
DJ can restore the case dismissed for default - complaint dismissed for default. The JM becomes functus officio and complaint cannot be restored. However DJ can restore, if counsel immediately represent after dismissal. 2001 Crl.L.J.2821. Kar.
Principal also liable. Cheque issued by authorised signatory given by principal – Principal would bound by act if mandate holder, who primarily liable. 2001 Crl.L.J. 3120 Mad.

Presumption - Once cheque was issued by drawer to payee it shall be presumed that it was issued for discharging legally enforceable liability. 2001 (3) CTC 403.
Peculiar return – Comes U/S 138 – Cheque returned as “payee’s vernacular endorsement requires attestation by drawer of by a Magistrate with seal”. This reason of endorsement is quite irrelevant. 2001 (3) CTC 403.

No averments about funds in complaint – plea rejected. Complaint cannot be quashed merely because complaint does not contain averment regarding insufficiency of funds. 2001 (3) CTC 403.

1st notice not U/S 138 (b) – 2nd notice valid – No cause of action for 2nd notice. But if notice U/S 138(b) issued after 15 days no cause of action for that notice. 2nd notice valid. Once notice as contemplated U/S 138 (b) is issued within prescribed period of 15 days and no complaint is filed there on drawer committing default of compliance of such notice – payee cannot represent same cheque and create another cause of action. 2001 (3) CTC 309 SC (DB).

Complaint by manager through power deed for company – valid – Complaint by manager of payee company on the strength of power of attorney deed is held to be valid. 2001 (3) CTC 301.

Defense evidence must – The rebuttal does not have to be conclusively established but such evidence must be adduced before the court in support of the defense that the court must either believe defense to exist or consider its existence to be reasonably probable. 2001 (3) CTC 243 SC.

Special `court jurisdiction for Sec.138. Special court shall have jurisdiction to try offence U/S 138 if it relates to transactions in securities during 01-04-1991 and 06-06-1992 irrespective of date if commission of defense. 2001 (3) CTC 243 SC.
Section 139 Presumption by law – presumptions U/S 138 and 139 makes if obligatory on part of court to raise such presumptions where factual basis has been made for raising such presumption. 2001 (3) CTC 243 SC.

Correction of date should be within 6 months – The validity of cheque U/S 138(a) is 6 months only, hence if any correction of date should be done within that period. (Over ruled SC). (Contra to 2001 (3) CTC 25.) 2001 (1) LW (Crl) 332.

Stale cheque – complaint cannot be dismissed so – Magistrate without considering allegation simply dismissed complaint on ground as stale cheque – unsustainable (cheque was returned as funds insufficient and stale cheque) 1998 II Crimes 375.

Questioning on sentence – not necessary. Questioning about sentence U/S 252 of Cr.P.C with accused not necessary in summons case. 2001 (3) CTC 25.

Corrected date – valid – 6 months from correction. Six months period contemplated U/S 138 would commence from last corrected date as shown in cheque – accused requested complainant not to present same for payment immediately and that complainant could correct date of cheque and present for payment. (Contra 2001 (1) LW (Crl) 332) 2001 (3) CTC 225.

Give severe punishment – The judicial magistrate are directed to keep in mind the object of providing stringent punishment and the guide lines given by the Apex court in case 2001 (1) CTC 368, which awarding sentence on the accused who is found guilty of an offence U/S 138. (Finding para 12) 2001 (2) CTC 595.

HC can alter nature of sentence – This court can only alter the nature or the extent of sentence of alter the nature and the extent of sentence but a fresh compensation cannot be awarded (para 10 finding) 2001 (2) CTC 595.

Notice under instructions from power agent – valid notice. 2001 Crl.L.J. 2155.

Notice demands cheque amount, cost, etc., not invalid. 2000 Crl.L.J. 1391.

Vicarious liability – Other directors not liable – must prima facie disclose acts by other directors. Complaint must prima facie disclose acts committed by Directors from which reasonable inference can be drawn regarding vicarious liability. 2001 (2) CTC 347.

Before trail – can be discharged – on perusal of public document. Court is within its power to consider even materials which accused may produce even before commencement of trial to decide whether accused is to be discharged – public document can be looked in to – form 32 is such a document. 2001 (2) CTC 78 = 2002 (1) CTC 227.

Sufficiency of averments – Authorised signatory – liable. Complaint containing clear averments that cheques were issued by authorised signatory of company only at instruction of other directors – they are liable. 2001 (2) CTC 78 = 2002 (1) CTC 227.
Retired director not liable. Form 32 reveals that 2nd petitioner did not function as director either on ate of cheque or when cause of action arose for non-payment – quashed. 2001 (2) CTC 78 = 2002 (1) CTC 227.

Bills of exchange and cheque – Post dated cheque is bill of exchange till date that bears arrives. Cheque is also bill of exchange but it is drawn on banker and payable on demand. Bill of exchange even if drawn on banker is not payable on demand and is not cheque. 2001 (2) CTC 57 SC.

Date of cheque should be taken – not date of issue – Six months time commences only from date which cheque bears and not date on which it was handed over to complainant. 2001 (2) CTC 57 SC.

Cheque issued by company – unless company liable – other directors not liable. Unless the company is made liable the question of punishing the person who are anchorage it and are responsible for business does not arise. Therefore, actual offence should have been committed by the company and then above the other two categories of persons U/S 141 (1, 2) become liable. 2001 (1) CTC 725.

Notice to company valid – other directors not necessary. Notice served on company but not MD and director who are parties in complaint – is valid notice U/S 138. 2001 (1) CTC 725.

Date of making complaint – is date for limitation – Making of complaint cannot be equated with taking cognizance of an offence – Bar by limitation U/S 142(b) applies for “making complaint” and not for “taking cognizance. 2001 (1) CTC 725.
Security plea rejected. Signature admitted – presumption can be rebutted – cheque issued for security – unacceptable. 2001 (1) CTC 671.

Criminal case U/S 138 cannot be stayed on ground of pending of Civil Suit. 2001 (1) CTC 671.

Cr.P.C. Sec. 420. Failed to pay installments, as per agreement – criminal case will not lie – it is pure civil nature. 2001 (1) CTC 624.

Post office savings bank also covers U/S 138. 2001 (1) CTC 616 SC.

Cheque should be presented within six months at paying bank. Cheque should be presented within 6 months (or) within validity which ever is sooner, at paying bank, not at collecting bank. 2000 Crl.L.J. 1152 Guj.

Notice to correct address – return as “out of station” – valid service. Notice sent to correct address – returned as “out of station” – deemed service – valid notice. 2000 Crl.L.J. 1005.


Material legal infirmities in complaint – fatal. Material legal infirmities in complainant’s story successfully rebut the presumption against accused – acquittal of accused proper. 2001 Crl.J. 745 Kar.

Interpretation of law – should achieve purpose of act. Law should be interpreted in light of objects intended to be achieved but such law – such interpretation is necessary even it deviates from general law. 2001 (1) CTC 538.

Reply as ‘received empty cover’ – second time collection & Notice – valid. Payee of cheque sending notice to drawer on dishonour – drawer sending reply that he received only empty envelops – payee - representing cheque and issued another notice and after compliance of act – Valid. 2001 (1) CTC 538.

Giving notice will not make an offence but receipt of notice must. Giving of notice by payee does not make an offence and ‘receipt’ of notice by drawer alone gives of action. 2001 (1) CTC 538.

Averments against other directors – must. Lack of averments as to other directors participation in day today affairs of company complainant must specifically allege that such person was in fact in charge and responsible for affairs of company. 2001 (1) CTC 425.

Condition to pay cheque amount while suspending sentence – valid. There is nothing unjust or unconscionable in imposing such condition while suspending sentence for offence U/S 138 – portion of fine should at least be directed to be remitted in court if fine is heavy while praying for suspension

No notice to company – but to MD who signed cheques – valid. No notice was issued to company on behalf of which cheque was issued – want of notice to company will not invalidate criminal proceedings against director who issued the cheque – provision for notice cannot be construed in narrow technical way with examining subject matter – prosecution is maintainable. 2001 (1) CTC 170 SC.


Entire payment of cheque made – even then offence is not absolved. Once offence is committed, any payment made subsequently will not absolve accused if liability of criminal offence but may have effect in awarding sentence. 2001 (1) CTC 170 SC.
Bank officer need not be examined. It can be taken as evidence without examine the bank officers. 2000 MLJ (Crl) 343.

Director not in charge of business not liable. Director of company who was not in charge of or was responsible for conduct of business of company at time of commence cannot be prosecuted as such person does not fall within purview of sec. 141 of NIA. 2002 (4) CTC 432 SC.

Premature complaint – valid. Filing of complaint and taking cognizance of an offence – distinction – mere presentation of complaint in court does not mean that its cognizance has been taken by magistrate – Date of filing of complaint is not crucial and date if taking cognizance is relevant – mere presentation of complaint at an earlier date need not necessarily result in dismissal of complaint or confer any right upon accused to absolve himself from criminal liability. 2000 (4) CTC 55 SC.

No plea – No evidence can be let in. 1990 (1) MLJ 127. 1992 (1) MLJ 188.
Left. Legal notice returned as “left” comes under Sec. 138 B. 2002 MWN AP 51/98.
Complaint presented by P.A., but signed by complainant – valid. Complaint presented by power of attorney but signed by complainant himself - complainant need not described as MD – description of complainant in cause title would not defeat prosecution since complainant has signed complaint. 2000 (3) CTC 680.

Complaint by “PA” without prior permission of complaint – valid. Complaint presented by power of attorney is maintainable even though complaint was not presented after obtaining prior permission from court – such illegality would not vitiate proceedings. 2000 (3) CTC 680.

Fine exceeds Rs.5, 000/- illegal/security of immovable property can be considered. Magistrate imposing sentence of 6 months and fine of Rs.12.82 lakhs will be paid as compensation – no compensation can be awarded where sentence is not only imprisonment but also fine. Para – 8. Accused given immovable properties as securities – (matter dismissed). 2000 (3) CTC 207.

Recall filling up lacuna – not valid. Petition U/S 311 of Cr.P.C. to examined PW.3. Bank officer to lead evidence regarding the fact misquoted by PW1 complainant – held, to fill up lacuna – petition not maintainable. 1999 Crl.L.J. 1097.

Authorised signatory – liable. Authorised signatory of company is liable to be prosecuted. There is no resolution appointing him by the board – not necessary - plead rejected. 1999 Crl.L.J. 229.

Improving case in counter – invalid. It is well settled law that it is not open to the respondents to improve their case by furnishing certain details in counter affidavit. 2000 (3) CTC 137.

Service of notice not mentioned in complaint/fatal. The only ground on which the learned counsel for the appellant prays for quashing of the complaint is that on the assertions made in Para 8 of the complaint, it must be held that notice has not been served - Sec. 138 states that … That being so in the complaint itself having not been mentioned that the notice has been served, on the assertions made in Para 8 of the complaint, the complaint itself is not maintainable – quashed. 1999 (3) CTC 164 SC.

Oral power enough. It was held in AIR Vs, Ramachandran (AIR 1961 Bom 292) that ‘order 6, rule 14 - signed by any person duly Authorised by him to sign the same’ in rule 14 need not be restricted to written authorizations. In the authorization is proved, even an oral authorization should be taken as sufficient’ – though the said decision is based on order 14 CPC there is no distinction as far as the authorization is concerned between civil and criminal laws. 1999(3) CTC 143.

(Family members) Other partners not liable U/S 420 Crl. Proceedings not a short cut. Family members of accused/drawer of cheque – Crl. Proceedings against them U/S 406 & 420 IPC held to be an abuse of process of law – quashed. Crl. Proceedings are not short cuts for other remedies available in law – any how 138 proceedings to be continued. 2000 (2) CTC 107.

Borrowal allegation – enough. Statement that accused had borrowed money and towards repayment he had issued cheque – Held there are sufficient pleadings to indicate that cheques were issued for discharge of existing debt. 1999 (1) LW (Crl) 414.

Premature complaint invalid. Complaint filed before expiry of 15 days from date of service of notice – complaint being premature – liable to be quashed. 2000 Crl.L.J.2572 (J&K). (Contra. 99 Crl.L.J. 949 = 2000 (4) CTC 55 SC. Premature complaint valid)
No plea to prosecute partner for company – accused not liable. Accused not sought to be prosecuted in his capacity as officer or person in charged of responsible to conduct of business of company – complaint against accused liable to be quashed. 2000 Crl.L.J.
2526 AP.

Transfer of cases t o one court – same parties – allowed. Parties in all cases are same. In interest of justice and also for convenience of conducting trial complaints directed to be transferred to Chennai from Hydrabad. 2000 Crl.L.J.2472. SC.

No bar on sick companies. It commission of office U/S 138 NIA was completed before commencement of proceedings U/S 22(1) of Sick Industrial Companies Act 2985 there is no prohibition in maintaining prosecution U/S 142 of the NI Act. 2000 (2) CTC 548 SC.

Allegation not necessary against partners. Express allegation need not be required to be made against such partner who active in day today affairs. 98 Crl.L.J. 10 © Guj.

Process recalled. Sufficient material to proceed against accused – recalling process not proper. 98 Crl.L.J. 1680 (A) Kar.

Capacity of lending. Complainant failed to prove capacity of lending huge amount – accused not liable to be punished. 98 Crl.L.J. 1680 (A) Kar.

Making part payment after filing complaint – accused cannot be acquitted. 98 Crl.L.J. 881.

Examine post man – plea rejected. Plea to examine postman in later stage – plea rejected. 98 Crl.L.J. 3671.

Defect in structure cheque not attract Sec. 138. Structural defect in cheque – cheque returned as not computerized to honour the same – Sec. 138 will not attract. 98 Crl.L.J. 4750 Bom.

Amount in account left for particular cheque should be proved. Unless it is shown that such payment was made towards the amount payable under cheque – proceedings cannot be quashed. 98 Crl.L.J. 3525 (A) Raj.

Sec. 2 of Power of attorney act. Power agent can act as donor. The section declares that every thing done by donee is as done by donor. 98 Crl.L.J. 3870 Guj.

Consideration past/future valid. A consideration can be past, present or future and therefore, promise to deliver goods in future can be termed as future consideration, and if any cheque is given for future consideration, it cannot be said as unlawful. 1996 Crl.L.J. 3099.

Not claimed/deemed service. Intimation given – notice not claimed – willful negligence – notice deemed served. 1998 II LW (Crl) 468.

I notice not claimed. II notice not valid. Ist notice returned as unserved, No cause of action for II notice. (Finding). 1997 Crl.L.J. 4275 AP.

Cause of action arises only once. 1999 MLJ (Crl) 649.

Twice fine not must. Impose fine twice the cheque amount – not imperative that court should impose in all cases. 1999 MLJ (Crl) 241.

Interest. Claiming interest in notice not illegal. 1999 MLJ (Crl) 269.

15 days time in notice not necessary. Mentioning 15 days time in notice is not necessary. 1999 MLJ (Crl) 138.

Substitution valid. Complaint filed by one person. Subsequently deed altered and another person Authorised – valid. 1999 MLJ (Crl) 727 Kar.

Unregistered firm – can file complaint. Complaint filed by unregistered partnership firm is valid. Registration is required for civil rights only. 1999 MLJ (Crl) 727 Kar. (Contra 1999 (2) CTC 540. Unregistered firm cannot file suit.)

Enhancement of punishment. Sentence inadequate, hence the same can be modified. 1999 MLJ (Crl) 111.

All partners not liable. It would be travesty of justice to ask all the partners to prove that the offence was committed without their knowledge. 1989 SC 1982.

Company not liable if cheque issued individually. Complaint against 1st accused company who is not drawer of cheque is not maintainable – Complaint against company quashed. Cheque issued by 2nd accused in individual capacity for company. 2nd accused alone is liable. 2000 (2) CTC 443.

Notice and case against MD valid. Complaint filed against Managing Director who has signed cheque – Notice issued to signatory of cheque is valid – No infirmity in issuing notices U/S 138. 2000 (1) CTC 302.

Complaint can be filed either by party or by pleader. Power deed not filed at the time of filing – valid. The court has’ duty’ not ‘power’ to accept the complaint. Complaint can not be returned for curing defects etc.., All documents not necessarily are filed/mere complaint is enough? Number should be given via separate register, while filing. Limitation applies for filing only/not for representing, etc. 2001 (1) CTC 225.

Company not necessary party. Complaint can be proceeded with as against other person even if prosecution proceedings against company were not taken. 2001 (1) CTC 94 SC.

Power agent by MD of company – invalid. Private company filed case – power of attorney agent of MD of private company has no locus stand in the absence of authorization by means of company resolution – delegate cannot delegate. 1999 (3) CTC 764.

Notice by drawer – valid. Cheque can be presented any number of times: - Valid notice – no form of notice is prescribed under Act to drawer on dishonour of cheque – notice sent by drawee directing drawer to arrange for payment on re-presentation of cheque and threatening to initiate criminal action constitutes valid notice for purpose of this section. Sec.142 – police could not start investigation without written complaint. 1999 (3) CTC 611 SC.

Cause of action commences from. Arose after 15 days from the date of return of the notice as unclaimed. 1999 (3) CTC 358 SC.

Compensation un limited. No limit is mentioned in Sub.sec. (3) of Sec. 357 Cr.P.C. magistrate can award any sum as compensation but reasonable. 1999 (3) CTC 358 SC.

Notice returned unclaimed deemed as served. Payee’s duty is over by dispatching notice. A payee can send the notice for doing his part for giving the notice. Once it is dispatched his part is over and the next depends on what the sendee does. Evading service of notice is deemed served. 1999 (3) CTC 358 SC.
Fine/Sentence. Magistrate cannot impose fine exceeding Rs.5000/-/sentence not exceeding three years. High court cannot increase the sentence imposed by trial court (Sec, 386 Cr.P.C.). 1999 (3) CTC 358 SC.

Jurisdiction Territorial. 1). Drawing of cheque 2). Presentation of cheque to bank. 3). Returning of cheque unpaid by ban. 4) Giving notice in writing to drawer of cheque demanding payment. 5) Failure of drawer to make payment within 15 days of receipt of notice – five difference acts were done in fine difference localities - complainant can choose any one of courts exercising jurisdiction of any one local area within territorial limit of which any of those 5 acts done. 1999 (3) CTC 358 SC.

No evidence that accused had charged his residence or that he had not received notice beyond his control – plea rejected. 1998 (2) Crimes 191 Kar.

Notice not claimed – without proof of change of address. 1998 (2) Crimes 191 Kar.

Notice received by some other – not valid. Notice received by some one else other than proprietorship concern - invalid. 1999 LW (Crl) I 395.

Without proprietor – not valid. Prosecution against proprietorship concern without impleading proprietor – invalid. 1999 LW (Crl) I 395.

Belated petition U/S 91 Cr.P.C. – valid. Petition filed U/S 91 Cr.P.C. to prove his case and for rebuttal of the presumption U/S 138 of NIA – petition filed during examination U/S 313 Cr.P.C. – Right of the accused can not be nagatived on the ground as belated. 1999 LW (Crl) I 82.

Authorization not proved – valid. Complaint filed by company through manager authorization not produced – existence of authorization not being a pre condition, complaint maintainable. 1999 I Crl.L.J. 1032. Bom. (Contra 99 Crl.L.J. 419 AP).

Notice to MD valid. Notice issued to MD and not to company - complaint against company Maintainable – notice valid. 1999 (3) CTC 179.

Authorization. If the authorization is proved even an oral authorization should be taken as sufficient. 1961 Bom 292.

Other partners not liable. Initiating prosecution against sleeping partners or own, when the company is main offender cannot sustained. 1992 LW (Crl) 120.

Other partners not liable. There may be ladies and minors who were admitted for the benefit of partnership. They may not know anything about the business of the firm. It would be travesty of justice to prosecute all partners and ask them to prove under the proviso to sub section (1) that the offence was committed without their knowledge. 1989 SC 1982 = 1983 Crl.L.J.159.
Stop payment – attracts Sec. 138. 1996 (1) CTC 193 = 1996 I LW (Crl) 325. Also 1997 (1) CTC 54.

Notice refused – valid service. Service on directors of company to proper address which was refused is valid service. 1999 (3) CTC 143.

Cheques given as security – not valid. Dishonour of cheques given as security towards loan would attract Sec. 138 NIA. 1999 (3) CTC 143.

Authorization after filing – valid. Subsequent authorization given cannot be thrown out on the ground that there was no authorization given at the time of filing complaint. 1999 (3) CTC 143.

Other directors not liable. Except for bald averment there was no evidence to show that they were in charge of and responsible for conduct of business of company. 1999 (3) CTC 143.

Stop payment – Attracts Section 138 NI Act. 1999 (3) CTC 143.

Premature complaint – valid. Premature complaint – complaint filed before expiry of 15 days from date of service of notice – sum not paid even after 15 days – magistrate can take cognizance of such complaint. 1999 Crl.L.J. 949 © Raj. (Overruled 2000 Crl.L.J. 2572 J&K).

JM can fine more than Rs.5000/-. JM can impose more than Rs.5, 000/- in view of the Sec. 142 of NI Act. (Dissented by Raman J.) 1999 Cr.L.J.968 Mad. = 1999 (2) CTC 652 (FB).

Abetment charges – invalid. MD and salesman of company at relevant time are not liable for refund of amount by present MD – No abetting charges against them are liable U/S 138. 1999 I Crl.L.J.75.

Time not necessary. Firm need not be included as accused unless (1). It is established that the firm alone was liable to discharge liability. (2). Return memo issued after 10 days by bank, notice issued within 15 days after the said 10 days valid. 1999 Crl.L.J.934,

Authorization not produced – valid. Complaint filed by company through manager authorization not produced – existence of authorization not being a pre condition – complaint maintainable. 1999 I Crl.L.J. 1032 (Contra 99 Crl.L.J. 419 AP)

Notice not returned or delivered. Notice sent through registered post – neither postal cover nor acknowledgement returned – presumption is notice served. 1999 Crl.L.J. 329 AP.

Notice not served as garage closed. Notice not served as garage closed – maintainable. 1999 Crl.L.J. 949 (B) Raj.
Jurisdiction. Court within whose jurisdiction cheque was presented for encashment – has jurisdiction to entertain complaint. 1998 Crl.L.J.2402 Ker.

Deposit of amount – not enough. Deposit of amount by accused in account not sufficient to hold that that offence U/S 138 is not made out. Unless it is shown that such payment was made towards the amount payable under cheque. 1998 Crl.L.J.3525 (A) Raj.

Company not necessary. Company need not be added as accused (based on 1984 SC 1824) (should be added 1988 SC 1123). 1998 Crl.L.J.4758.

Mens-rea not necessary. 1999 Crl.L.J. 4361 (B) Bom.

No averments against directors – quashed. No averments or allegation against directors – nor material showing alleged offence was committed with consent of them – proceeding quashed against him. 1998 Crl.L.J. 4383 (Del) 4521 (AP).

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