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LIABILITY OF DIRECTOR OF A COMPANY IN CHEQUE BOUNCE CASE

Relying upon K. Srikanth Singh v. North East Securities, 2007 (9) SCALE 371, it is submitted that mere participation in the transaction does not infer that the director was responsible for the day-to-day affairs of the company. Vicarious liability has to be pleaded and proved and cannot be inferred. It is submitted that since there is no specific allegations, qua the petitioners, as to the role played by them in the subject matter, the requirements of section 141 of the Act are not satisfied.

Relying upon S.M.S Pharmaceuticals Ltd. V. Neeta bhalla & Anr AIR 2005 SC 3512, it is submitted that liability under Section 141 of the Act can be cast on the persons who may have something to do with the transaction complained of. A person who is incharge of and responsible for conduct of business of the company would naturally know why the cheque in question was issued and why it got dishonoured.

Relying upon Harman Electronics Pvt. Ltd v. National Panasonic India Ltd. AIR 2009 SC 1168, submitted that an offence under section 138 of the Act is completed only if the Drawer fails to pay the cheque amount on the expiry of the statutory period in the demand notice and not on the day when the cheques were issued or matured. Since, at the time of commission of the offence, all the petitioners had ceased to be directors of the accused company, they are not liable.

In the case of N. Rangachari vs. Bharat Sanchar Nigam Ltd.,(2007(5) SCC 108, AIR 2007 SCW 2591) the Hon'ble Supreme Court held that, "A person in the commercial world having a transaction with a Company is entitled to presume that the Directors of the Company are in charge of affairs of the Company. If any restrictions on their powers are placed by the memorandum or Articles of the Company, it is for the Directors to establish it at the trial. It is in that context that Section 141 of the Negotiable Instruments Act provides that when the offender is a Company, every person, who at the time when the offence was committed was in charge of and was responsible to the company for the conduct of the business of the Company, shall also be deemed to be guilty of the offence along with the Company. It appears to us that an allegation in the complaint that the named accused are Directors of the Company itself would usher in the element of their acting for and on behalf of the company and of their being in charge of the Company. A person normally having business or commercial dealings with a Company, would satisfy himself about its creditworthiness and reliability by looking at its promoters and Board of Directors and the nature and extent of its business and its memorandum or articles of association. Other than that, he may not be aware of the arrangements within the Company in regard to its management, daily routine, etc. Therefore, when a cheque issued to him by the Company is dishonoured, he is expected only to be aware generally of who are in charge of affairs of the Company. It is not reasonable to expect him to know whether the person who signed the cheque was instructed to do so or whether he has been deprived of his authority to do so when he actually signed the cheque. Those are matters peculiarly within the knowledge of the Company and those in charge of it. So, all that a payee of a cheque that is dishonoured can be expected to allege is that the persons named in the complaint are in charge of its affairs. The Directors are prima facie in that position. In fact, an advertence to Sections 138 and 141 of the Negotiable Instruments Act shows that on the other elements of an offence under Section 138 being satisfied, the burden is on the Board of Directors or Officers in charge of affairs of the Company to show that they are not liable to be convicted. Any restriction on their power or existence of any special circumstance that makes them not liable is something that is peculiarly within their knowledge and it is for them to establish at the trial such a restriction or to show that at the relevant time they were not in charge of the affairs of the Company."

DELAY IN SENDING FIR TO MAGISTRATE

Supreme Court in the case of Bijoy Singh and Anr. v. State of Bihar, reported in 2000(3) SCC (Cri.) 1093. The First Information Report is a report giving information of the commission of a cognizable crime which may be made by the complainant or by any other person knowing about the commission of such an offence. It is intended to set the criminal law in motion. Any information relating to the commission of a cognizable offence is required to be reduced to writing by the officer-incharge of the Police Station which has to be signed by the person giving it and the substance thereof is required to be entered in a book to be kept by such officer in such form as the State Government may prescribe in that behalf. The registration of the FIR empowers the officer incharge of the police station to commence investigation with respect to the crime reported to him. A copy of the FIR is required to be sent forthwith to the Magistrate empowered to take cognizance of such offence. After recording the FIR, the officer incharge of the police station is obliged to proceed in person or depute one of his subordinate officers not below such rank as the State Government may, by general or special order, prescribe in that behalf to proceed to the spot to investigate the facts and circumstances of the case and if necessary to take measures for the discovery and arrest of the offender. It has been held time and again that the FIR is not a substantive piece of evidence and can only be used to corroborate the statement of the maker under Section 161 of the Evidence Act or to contradict him under Section 145 of that Act. It cannot be used as evidence against the maker at the trial if he himself becomes an accused nor to corroborate or contradict other witnesses. It is not the requirement of law that the minutest details be recorded in the FIR lodged immediately after the occurrence. The fact of the state of mental agony of the person making the FIR who generally is the victim himself, if not dead, or the relations or associates of the deceased victim apparently under the shock of the occurrence reported has always to be kept in mind. .......... Immediate sending of the report mentioned in Section 157 Cr.P.C. is the mandate of law. Delay wherever found is required to be explained by the prosecution. If the delay is reasonably explained, no adverse inference can be drawn but failure to explain the delay would require the court to minutely examine the prosecution version for ensuring itself as to whether any innocent person has been implicated in the crime or not. Insisting upon the accused to seek an explanation of the delay is not the requirement of law. It is always for the prosecution to explain such a delay and if reasonable, plausible and sufficient explanation is tendered, no adverse inference can be drawn against it.

Meharaj Singh v. State of U.P. [1995 Criminal Law Journal 457] held that FIR in a criminal case and particularly in a murder case is a vital and valuable piece of evidence for the purpose of appreciating the evidence led at the trial. The object of insisting upon lodging of the FIR is to obtain the earliest information regarding the circumstance in which the crime was committed, including the names of the actual culprits and the parts played by them, the weapons, if any, used as also the names of the eye-witnesses, if known to the informant. Delay in loding the FIR often results in embellishment, which is a creature of an afterthought.


Supreme Court in the case of Kari Choudhary v. Sita Devi, 2002(2) SCC (Cri.) 269, the ultimate object of every investigation is to find out whether the offences alleged have been committed and if so, who have committed those. Even otherwise, the Supreme Court proceeded, the investigation agency is not precluded from further investigation in respect of an offence in spite of forwarding a report under Section 173(2) on a previous occasion. In the present case, if no action was taken on the basis of earlier complaints, it is for the prosecution to explain the reason for such inaction at the time of trial, if such point is raised. But at this stage, there is no scope of calling for explanation for such alleged inaction in this, writ jurisdiction. Thus, even if it appears that prior to formal lodging of FIR on June 14, 1999 there were two earlier complaints making similar allegations, such fact alone cannot justify quashing of the FIR at this stage.

In the case T.T. Antony v. State of Kerala and Ors. [(2001) 6 SCC 181] the Supreme Court was considering cases where in spite of the fact that investigations pursuant to registration of an FIR lodged in 1994 was pending, fresh FIR was lodged in 1997 over the self-same incident indicting additional persons with graver charges after the change of Government on the basis of report of commission under Commissions of Inquiry Act, 1952. Under such circumstances, the Supreme Court was of the view that on the date of filing of the 2nd FIR, the investigations in the earlier proceedings being pending, the correct course of action should have been to take note of the findings and contents of the report of commission, streamline the investigation to ascertain the true facts, collect the evidence in support thereof, form an opinion under Sections 169 and 170 of Cr.P.C., as the case may be, and forward the report or reports under Section 173(2) or Section 173(8) of the Cr.P.C. to the Magistrate concerned instead of registration of second FIR with regard to the same incident and making fresh investigation. Thus, the 2nd FIR and fresh investigation were quashed leaving it open to the investigating agency to seek permission of the Magistrate concerned in the earlier case to make further investigation and forward further report or reports.

Supreme Court quoted with approval the following observations of Bhagawati C.J, in Sheonandan Paswan v. State of Bihar, AIR 1983 SC 194 : "It is a well established proposition of law that a criminal prosecution, if otherwise justifiable and based upon adequate evidence, does not become vitiated on account of mala fide or political vendetta of the first information or the complainant."

In the case of State of A.P. v. Punati Ramulu and Ors., 1994 Supp(1) SCC 590, the Supreme Court while hearing an appeal against acquittal in a murder case observed that in a case where the police officer deliberately did not record FIR on receipt of information about cognizable offence and subsequently FIR was prepared after reaching the spot, and after due deliberations, consultation and discussions, such a complaint cannot be treated as FIR and that it would be considered as statement made during investigation of a ease and would be hit by Section 162 of Cr.P.C. and consequently it would be unsafe to rely on such tainted investigation. In my view, the said principle can be applied only in a case where those facts are established on conclusion of trial; but taking aid of such principle, an accused person at the stage of investigation by filing a writ application cannot demand scrutiny of those disputed facts for the purpose of establishing that such investigation has been vitiated by the presence of those vicious elements.

In the case of K.M. Nanavati v. State of Maharashtra (AIR 1962 SC 605) the Supreme Court while dealing with an appeal against an order of conviction pointed out in paragraph 26 that the question whether the investigation commenced or not is a question of fact and the same does not depend upon the, irregularity committed in the matter of recording FIR by the concerned police officer. I have already held that the question whether the registered FIR in this case will be hit by Section 162 of the Code being a disputed question of fact should not be adjudicated in this writ application and that such point will be open to the petitioner at the time of trial.

Supreme Court in STATE OF PUNJAB v. SARWAN SINGH, 1981 SCALE (1)619 and it is observed in paragraph-3 as under: "....The object of the Criminal Procedure Code in putting a bar of limitation on prosecution was clearly to prevent the parties from filing cases after a long time, as a result of which material evidence may disappear and also to prevent abuse of the process of the Court by filing vexatious and belated prosecutions long after the date of the offence. The object which the statute seeks to subserve is clearly in consonance with the concept of fairness of trial as enshrined in Article 21 of the Constitution of India. It is, therefore, of the utmost importance that any prosecution whether by the State or a private complainant roust abide by the letter of law or take the risk of the prosecution failing on the ground of limitation In the light of the said observations, the Supreme Court has held that the prosecution launched against the respondent was barred by limitation and, therefore, his conviction as also the entire proceedings culminating in the conviction of the respondent was non-est. Therefore, the appeal filed by the State against the order of the High Court of Punjab setting aside the conviction of respondent on the ground of limitation is affirmed by the Supreme Court.

Chonary Ahmed Kutty vs Special Police Establishment ILR 1991 KAR 726, 1990 (3) KarLJ 483 QUOTED decision of the Allahabad High Court in PRAKASH CHANDRA SHARMA v. KAUSHAL KISHORE , 1989 Cr.L.J. 578 in which it is held that "when a complaint is filed against the accused which prima facie is barred by time, it becomes necessary for the prosecuting agency to simultaneously file an application for condonation of delay under Section 473. Unless the delay is condoned, the Court cannot take cognizance of the complaint. It is not open for the Magistrate to take cognizance, issue process, record evidence and thereafter to determine the question of limitation."

ANTICIPATORY BAIL AS EXPLAINED BY CONSTITUTION BENCH 1980 SC

Apex Court in the case of Siddharam Satlingappa Mhetre v. State of Maharashtra & Ors. Reported in [2011]1 SCC 694, wherein the Apex Court reiterated the law laid down by the Constitutional Bench in the case of Shri Gurubaksh Singh Sibbia & Ors. Reported in [1980]2 SCC 565. AIR 1980 SC 1632

1. The society has a vital stake in both of these interests namely, personal liberty and the investigational power of the police, though their relative importance at any given time depends upon the complexion and restraints of political conditions. The Court's task is how best to balance these interests while determining the scope of section 438 of the Code of Criminal Procedure, 1973.

2. The High Court and the Court of Session should be left to exercise their jurisdiction under section 438 by a wise and careful use of their discretion which by their long training and experience, they are ideally suited to do. The ends of justice will be better served by trusting these courts to act objectively and in consonance with principles governing the grant of bail which are recognised over the years, than by divesting them of their discretion which the legislature has conferred upon them, by laying down inflexible rules of general application. It is customary, almost chronic, to take a statute as one finds it on the ground that, after all, "the legislature in its wisdom" has thought it fit to use a particular expression. A convention may usefully grow whereby the High Court and the Court of Session may be trusted to exercise their discretionary powers in their wisdom, especially when the discretion is entrusted to their care by the legislature in its wisdom. If they err, they are liable to be corrected.

3. Section 438(1) of the Code lays down a condition which has to be satisfied before anticipatory bail can be granted. The applicant must show that he has "reason to believe" that he may be arrested for a non-bailable offence. The use of the expression "reason to believe" shows that the belief that the applicant may be so arrested must be founded on reasonable grounds. Mere 'fear' is not 'belief', for which reason it is not enough for the applicant to show that he has some sort of a vague apprehension that some one is going to make an accusation against him, in pursuance of which he may be arrested. The grounds on which the belief of the applicant is based that he may be arrested for a non- bailable offence, must be capable of being examined by the court objectively, because it is then alone that the court can determine whether the applicant has reason to believe that he may be so arrested. Section 438(1), therefore, cannot be invoked on the basis of vague and general allegations, as if to arm oneself in perpetuity against a possible arrest. Otherwise, the number of applications for anticipatory bail will be as large, as, at any rate, the adult populace.
Anticipatory bail is a device to secure the individual's liberty; it is neither a passport to the commission of crimes nor a shield against any and all kinds of accusation, likely or unlikely.
Secondly, if an application for anticipatory bail is made to the High Court or the Court of Session it must apply its own mind to the question and decide whether a case has been made out for granting such relief. It cannot leave the question for the decision of the Magistrate concerned under Section 437 of the Code, as and when an occasion arises. Such a course will defeat the very object of Section 438.
Thirdly, the filing of a First Information Report is not a condition precedent to the exercise of the power under Section 438. The imminence of a likely arrest founded on a reasonable belief can be shown to exist even if an F.I.R. is not yet filed.
Fourthly, anticipatory bail can be granted even after an F.I.R. is filed, so long as the applicant has not been arrested.
Fifthly, the provisions of Section 438 cannot be invoked after the arrest of the accused. The grant of "anticipatory bail" to an accused who is under arrest involves a contradiction in terms, in so far as the offence or offences for which he is arrested, are concerned. After arrest, the accused must seek his remedy under Section 437 or Section 439 of the Code, if he wants to be released on bail in respect of the offence or offences for which he is arrested.

4. However, a "blanket order" of anticipatory bail should not generally be passed. This flows from the very language of the section which requires the appellant to show that he has "reason to believe" that he may be arrested. A belief can be said to be founded on reasonable grounds only if there is something tangible to go by on the basis of which it can be said that the applicant's apprehension that he may be arrested is genuine. That is why, normally, a direction should not issue under Section 438(1) to the effect that the applicant shall be released on bail "whenever arrested for which ever offence whatsoever". That is what is meant by a 'blanket order' of anticipatory bail, an order which serves as a blanket to cover or protect any and every kind of allegedly unlawful activity, in fact any eventuality, likely or unlikely regarding which, no concrete information can possibly be bad. The rationale of a direction under Section 438(1) is the belief of the applicant founded on reasonable grounds that he may be arrested for a non-bailable offence. It is unrealistic to expect the applicant to draw up his application with the meticulousness of a pleading in a civil case and such is not requirement of the section. But specific events and facts must be disclosed by the applicant in order to enable the court to judge of the reasonableness of his belief, the existence of which is the sine qua non of the exercise of power conferred by the section. ....................... Apart from the fact that the very language of the statute compels this construction, there is an important principle involved in the insistence that facts, on the basis of which a direction under Section 438(1) is sought, must be clear and specific, not vague and general. It is only by the observance of that principle that a possible conflict between the right of an individual to his liberty and the right of the police to investigate into crimes reported to them can be avoided. ........... A blanket order of anticipatory bail is bound to cause serious interference with both the right and the duty of the police in the matter of investigation because, regardless of what kind of offence is alleged to have been committed by the applicant and when, an order of bail which comprehends allegedly unlawful activity of any description whatsoever, will prevent the police from arresting the applicant even if the commits, say, a murder in the presence of the public. Such an order can then become a charter of lawlessness and weapon to stifle prompt investigation into offences which could not possibly be predicated when the order was passed. Therefore, the court which grants anticipatory bail must take care to specify the offence or offences in respect of which alone the order will be effective. The power should not be exercised in a vacuum.

5. An order of bail can be passed under section 438(1) of the Code without notice to the Public Prosecutor. But notice should issue to the public prosecutor or the Government Advocate forthwith and the question of bail should be re-examined in the light of the respective contentions of the parties. The ad-interim order too must conform to the requirements of the section and suitable conditions should be imposed on the applicant even at that stage.

6. Equally the operation of an order passed under section 438(1) need not necessarily be limited in point of time. The Court may, if there are reasons for doing so, limit the operation of the order to a short period until after the filing of an F.I.R. in respect of the matter covered by the order. The applicant may in such cases be directed to obtain an order of bail under Section 437 or 439 of the Code within a reasonably short period after the filing of the F.I.R. as aforesaid. But this need not be followed as an invariable rule. The normal rule should be not to limit the operation of the order in relation to a period of time.

7. Bail is basically release from restraint, more particularly release from the custody of the police. The act of arrest directly affects freedom of movement of the person arrested by the police, and speaking generally, an order of bail gives back to the accused that freedom on condition that he will appear to take his trial. Personal recognizance suretyship bonds and such other modalities are the means by which an assurance is secured from the accused that though he has been released on bail, he will present himself as the trial of offence or offences of which he is charged and for which he was arrested.

The distinction between an ordinary order of bail and an order of anticipatory bail is that whereas the former is granted after arrest and therefore means release from the custody of the police, the latter is granted in anticipation of arrest and is therefore effective at the very moment of arrest. Police custody is an inevitable concomitant of arrest for non-bailable offences. An order of anticipatory bail constitutes, so to say, an insurance against police custody following upon arrest for offence or offences in respect of which the order is issued. In other words, unlike a post-arrest order of bail, it is a pre-arrest legal process which directs that if the person in whose favour it is issued is thereafter arrested on the accusation in respect of which the direction is issued, he shall be released on bail. Section 46(1) of the Code of Criminal Procedure which deals with how arrests are to be made, provides that in making the arrest the police officer or other person making the arrest "shall actually touch or confine the body of the person to be arrested, unless there be a submission to the custody by word or action". A direction under section 438 is intended to confer conditional immunity from this 'touch' or confinement.

8. No one can accuse the police of possessing a healing touch nor indeed does anyone have misgivings in regard to constraints consequent upon confinement in police custody. But, society has come to accept and acquiesce in all that follows upon a police arrest with a certain amount of sangfroid, in so far as the ordinary rut of criminal investigation is concerned. It is the normal day-to-day business of the police to investigate into charges brought before them and, broadly and generally, they have nothing to gain, not favours at any rate, by subjecting ordinary criminal to needless harassment. But the crimes, the criminals and even the complaints can occasionally possess extraordinary features. When the even flow of life becomes turbid, the police can be called upon to inquire into charges arising out of political antagonism. The powerful processes of criminal law can then be perverted for achieving extraneous ends. Attendant upon such investigations, when the police are not free agents within their sphere of duty, is a great amount of inconvenience, harassment and humiliation. That can even take the form of the parading of a respectable person in hand-cuffs, apparently on way to a court of justice. The foul deed is done when an adversary is exposed to social ridicule and obloquy, no matter when and whether a conviction is secured or is at all possible. It is in order to meet such situations, though not limited to these contingencies, that the power to grant anticipatory bail was introduced into the Code of 1973.

9. Clause (1) of Section 438 is couched in terms, broad and unqualified. By any known canon of construction, words of width and amplitude ought not generally to be cut down so as to read into the language of the statute restraints and conditions which the legislature itself did not think it proper or necessary to impose. This is especially true when the statutory provision which falls for consideration is designed to secure a valuable right like the right to personal freedom and involves the application of a presumption as salutary and deep grained in our Criminal Jurisprudence as the presumption of innocence. ............. The legislature conferred a wide discretion on the High Court and the Court of Session to grant anticipatory bail because it evidently felt, firstly, that it would be difficult to enumerate the conditions under which anticipatory bail should or should not be granted and secondly; because the intention was to allow the higher courts in the echelon a somewhat free hand in the grant of relief in the nature of anticipatory bail. That is why, departing from the terms of Sections 437 and 439, Section 438(1) uses the language that the High Court or the Court of Session "may, if it thinks fit" direct that the applicant be released on bail. Sub-section (2) of Section 438 is a further and clearer manifestation of the same legislative intent to confer a wide discretionary power to grant anticipatory bail. It provides that the High Court or the Court of Session, while issuing a direction for the grant of anticipatory bail, "may include such conditions in such directions in the light of the facts of the particular case, as it may think fit" including the conditions which are set out in clauses (i) to (iv) of sub-section (2). The proof of legislative intent can best be found in the language which the legislature uses. Ambiguities can undoubtedly be resolved by resort to extraneous aids but words, as wide and explicit as have been used in Section 438, must be given their full effect, especially when to refuse to do so will result in undue impairment of the freedom of the individual and the presumption of innocence. It has to be borne in mind that anticipatory bail is sought when there is a mere apprehension of arrest on the accusation that the applicant has committed a non-bailable offence. A person who has yet to lose his freedom by being arrested asks for freedom in the event of arrest. That is the stage at which it is imperative to protect his freedom, in so far as one may, and to give full play to the presumption that he is innocent. In fact, the stage at which anticipatory bail is generally sought brings about its striking dissimilarity with the situation in which a person who is arrested for the commission of a non-bailable offences asks for bail. In the latter situation, adequate data is available to the Court, or can be called for by it, in the light of which it can grant or refuse relief and while granting it, modify it by the imposition of all or any of the conditions mentioned in Section 437.

10. The amplitude of judicial discretion which is given to the High Court and the Court of Sessions, to impose such conditions as they may think fit while granting anticipatory bail, should not be cut down, by a process of construction, by reading into the statute conditions which are not to be found therein like those evolved by the High Court. The High Court and the Court of Session to whom the application for anticipatory bail is made ought to be left free in the exercise of their judicial discretion to grant bail if they consider it fit so to do on the particular facts and circumstances of the case and on such conditions as the case may warrant. Similarly, they must be left free to refuse bail if the circumstances of the case so warrant, on considerations similar to those mentioned in Section 437 or which are generally considered to be relevant under Section 439 of the Code. .................. Generalisations on matters which rest on discretion and the attempt to discover formulae of universal application when facts are bound to differ from case to case frustrate the very purpose of conferring discretion. No two cases are alike on facts and therefore, Courts have to be allowed a little free play in the joints if the conferment of discretionary power is to be meaningful. There is no risk involved in entrusting a wide discretion to the Court of Session and the High Court in granting anticipatory bail because, firstly these are higher courts manned by experienced persons, secondly their order are not final but are open to appellate or revisional scrutiny and above all because, discretion has always to be exercised by courts judicially and not according to whim, caprice or fancy. On the other hand, there is a risk in foreclosing categories of cases in which anticipatory bail may be allowed because life throws up unforeseen possibilities and offers new challenges. Judicial discretion has to be free enough to be able to take these possibilities in its stride and to meet these challenges.

11. Judges have to decide cases as they come before them, mindful of the need to keep passions and prejudices out of their decisions. And it will be strange if, by employing judicial artifices and techniques, this Court cuts down the discretion so wisely conferred upon the Courts, by devising a formula which will confine the power to grant anticipatory bail within a strait-jacket. While laying down cast-iron rules in a matter like granting anticipatory bail, as the High Court has done, it is apt to be overlooked that even Judges can have but an imperfect awareness of the needs of new situations. Life is never static and every situation has to be assessed in the context of emerging concerns as and when it arises. Therefore, even if this Court were to frame a 'Code for the grant of anticipatory bail', which really is the business of the legislature, it can at best furnish broad guidelines and cannot compel blind adherence. In which case to grant bail and in which to refuse it is, in the very nature of things, a matter of discretion. But apart from the fact that the question is inherently of a kind which calls for the use of discretion from case to case, the legislature has, in terms express, relegated the decision of that question to the discretion of the Court, by providing that it may grant bail "if it thinks fit". The concern the Courts generally is to preserve their discretion without meaning to abuse it. It will be strange if the Court exhibits concern to stultify the discretion conferred upon the Courts by law. ............. Discretion, therefore, ought to be permitted to remain in the domain of discretion, to be exercised objectively and open to correction by the higher courts. The safety of discretionary power lies in this twin protection which provides a safeguard against its abuse.

12. It is true that the functions of judiciary and the police are in a sense complementary and not overlapping. An order of anticipatory bail does not in any way, directly or indirectly, take away from the police their right to investigate into charges made or to be made against the person released on bail. In fact, two of the usual conditions incorporated in a direction issued under section 438(1) are those recommended in Sub-section (2)(i) and (ii) which require the applicant to co-operate with the police and to assure that he shall not tamper with the witnesses during and after the investigation. While granting relief under Section 438(1), appropriate conditions can be imposed under Section 438(2), so as to ensure an uninterrupted investigation. One of such conditions can even be that in the event of the police making out a case of a likely discovery under Section 27 of the Evidence Act, the person released on bail shall be liable to be taken in police custody for facilitating the discovery. Besides, if and when the occasion arises, it may be possible for the prosecution to claim the benefit of Section 27 of the Evidence Act in regard to a discovery of facts made in pursuance of information supplied by a person released on bail.

13. In Balchand Jain v. State of Madhya Pradesh, [1977] 2 SCR 52, this Court was considering whether the provisions of Section 438 relating to anticipatory bail stand overruled or repealed by virtue of Rule 184 of the Defence and Internal Security of India Rules, 1971 or whether both the provisions can by rule of harmonious interpretion, exist side by side. It was in that context that it was observed that "As section 438 immediately follows Section 437 which is the main provision for bail in respect of non-bailable offences, it is manifest that the conditions imposed by s. 437(1) are implicitly contained in Section 438 of the Code". These observations regarding the nature of the power conferred by section 438 and regarding the question whether the conditions mentioned in Section 437 should be read into section 438 cannot, therefore be treated as the ratio of the decision. ................... The power conferred by section 438 is of an "extra ordinary" character only in the sense that it is not ordinarily resorted to like the power conferred by sections 437 and 439.

14. Since denial of bail amounts to deprivation of personal liberty, the Court should lean against the imposition of unnecessary restrictions on the scope of section 438, especially when no such restrictions have been imposed by the legislature in the terms of that section. Section 438 is a procedural provision which is concerned with the personal liberty of the individual, who is entitled to the benefit of the presumption of innocence since he is not, on the date of his application for anticipatory bail, convicted of the offence in respect of which he seeks bail. An over-generous infusion of constraints and conditions which are not to be found in Section 438 can make its provisions constitutionally vulnerable since the right to personal freedom cannot be made to depend on compliance with unreasonable restrictions.

15. In regard to anticipatory bail, if the proposed accusation appears to stem not from motives of furthering the ends of justice but from some ulterior inotive, the object being to injure and humiliate the applicant by having him arrested a direction for the release of the applicant on bail in the event of his arrest would generally, be made. On the other hand, if it appears likely considering the antecedents of the applicant, that taking advantage of the order of anticipatory bail he will flee from justice, such an order would not be made. But the converse of these propositions is not necessarily true. That is to say it cannot be laid down as an inexorable rule that anticipatory bail cannot be granted unless the proposed accusation appears to be actuated by mala fides; and, equally, that anticipatory bail must be granted if there is no fear that the applicant will abscond. There are several other considerations, too numerous to enumerate the combined effect of which must weigh with the court while granting or rejecting anticipatory bail. The nature and seriousness of the proposed charges, the context of the events likely to lead to the making of the charges, a reasonable possibility of the applicant's presence not being secured at the trial, a reasonable apprehension that witnesses will be tampered with and "the larger interests of the public or the state" are some of the considerations which the court has to keep in mind while deciding an application for anticipatory bail.

WHEN ACCUSED IS CLAIMED TO BE A CHILD COURT SHALL MAKE INQUIRY ON IT 1997 SC

Hon'ble Supreme Court in the case of Bhola Bhagat Vs. State of Bihar reported in (1997) 8 SCC 720 has held that when a plea is raised on behalf of an accused that he was a "child" within the meaning of the definition of the expression under the Act, it becomes obligatory for the Court, in case it entertains any doubt about the age as claimed by the accused, to hold an inquiry itself for determination of the question of age of the accused or cause an enquiry to be held and seek a report regarding the same, if necessary, by asking the parties to lead evidence in that regard. Keeping in view the beneficial nature of the socially-oriented legislation, it is an obligation of the Court where such a plea is raised to examine that plea with care and it cannot fold its hands and without returning a positive finding regarding that plea, deny the benefit of the provisions to an accused. The Court must hold an enquiry and return a finding regarding the age, one way or the other. The Court further held that the High Courts and the subordinate courts are expected to deal with such cases with more sensitivity, as otherwise the object of the Acts would be frustrated and the efforts of the legislature to reform the delinquent child and reclaim him as a useful member of the society would be frustrated. The Court further observed that the High Courts may issue administrative directions to the subordinate courts that whenever such a plea is raised before them and they entertain any reasonable doubt about the correctness of the plea, they must as a rule, conduct an inquiry by giving opportunity to the parties to establish their respective claims and return a finding regarding the age of the accused concerned and then deal with the case in the manner provided by law.

CRIMINAL CONSPIRACY EXPLAINED 2002 SC

Decision reported in 2002 SCC (cri) 1734 (Mohd. Khalid v. State of West Bengal), in para-17, it is held as follows: "17. .. .. The elements of a criminal conspiracy have been stated to be: (a) an object to be accomplished, (b) a plan or scheme embodying means to accomplish that object, (c) an agreement or understanding between two or more of the accused persons whereby they become definitely committed to co-operate for the accomplishment of the object by the means embodied in the agreement, or by any effectual means, and (d) in the jurisdiction where the statute required an overt act. The essence of a criminal conspiracy is the unlawful combination and ordinarily the offence is complete when the combination is framed. Law making conspiracy a crime, is designed to curb immoderate power to do mischief which is gained by a combination of the means. The encouragement and support which co-conspirators give to one another rendering enterprises possible which, if left to individual effort, would have been impossible, furnish the ground for visiting conspirators and abettors with condign punishment. The conspiracy is held to be continued and renewed as to all its members wherever and whenever any member of the conspiracy acts in furtherance of the common design. .. .."

SEIZURE OF PASSPORT AND IMPOUNDING OF PASSPORT - COURT AND POLICE POWERS 2008 SC

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Justice P.P. NAOLEKAR & Justice MARKANDEY KATJU before Honourable Supreme Court in Suresh Nanda .vs. Central Bureau of Investigation reported in (2008) 2 Supreme Court Cases(Crl) 121, AIR 2008 SC 1414, wherein, their Lordships of the Supreme Court held in clear terms that the power of the police under Section 102 Cr.P.C., to seize a document could not be interpreted to include a power to impound the document. It was also held that the power of seizure contemplated under Section 102 Cr.P.C. was different from the power of the Court to impound a document under Section 104 Cr.P.C. The Honourable Supreme Court has held that though power has been conferred upon the court to impound a document under Section 104 Cr.P.C, the said power is not available in respect of a passport because impounding of the passport is governed by the provision of a special law, namely Passport Act, whereas the Code of Criminal Procedure is general law and hence the provisions of the special law will prevail over the general law. Their Lordships have also held in clear terms that though the police do have power to seize the passport, if they want to get the passport impounded after the seizure of the passport, they have to submit the passport to the Passport Authority with a requisition for impounding the same. Similar observation has been made in respect of the procedure to be followed by the Court. In either case, whether it be the Police or the Court, they cannot retain the passport and retention of the passport by the Court will amount to impounding of the document. In the said case, the Honourable Supreme Court held that an order dismissing the petition for return of the passport was obnoxious and against law, set aside the said order and directed the return of passport to the holder of the passport. The Honourable Supreme Court also incidentally observed that it was open to the authorities to approach the Passport authority under Section 10 or the authorities under Section 10-A of the Act for impounding passport in accordance with law. In our opinion, while the police may have the power to seize a passport under Section 102(1) Cr.P.C, it does not have the power to impound the same. Impounding of a passport can only be done by the passport authority under Section 10(3) of the Passports Act, 1967. It may be mentioned that there is a difference between seizing of a document and impounding a document. A seizure is made at a particular moment when a person or authority takes into his possession some property which was earlier not in his possession. Thus, seizure is done at a particular moment of time. However, if after seizing of a property or document the said property or document is retained for some period of time, then such retention amounts to impounding of the property/or document. Hence, while the police may have power to seize a passport under Section 102 Cr.P.C. if it is permissible within the authority given under Section 102 of Cr.P.C., it does not have power to retain or impound the same, because that can only be done by the passport authority under Section 10(3) of the Passports Act. Hence, if the police seizes a passport (which it has power to do under Section 102 Cr.P.C.), thereafter the police must send it along with a letter to the passport authority clearly stating that the seized passport deserves to be impounded for one of the reasons mentioned in Section 10(3) of the Act. It is thereafter the passport authority to decide whether to impound the passport or not. Since impounding of a passport has civil consequences, the passport authority must give an opportunity of hearing to the person concerned before impounding his passport. It is well settled that any order which has civil consequences must be passed after giving opportunity of hearing to a party In our opinion, even the Court cannot impound a passport. Though, no doubt, Section 104 Cr.P.C. states that the Court may, if it thinks fit, impound any document or thing produced before it, in our opinion, this provision will only enable the Court to impound any document or thing other than a passport. This is because impounding a passport is provided for in Section 10(3) of the Passports Act. The Passports Act is a special law while the Cr.P.C. is a general law. It is well settled that the special law prevails over the general law

FABRICATION OF FALSE EVIDENCE MAY TAKE PLACE OUTSIDE THE COURT THOUGH USED INSIDE THE COURT HENCE SECTION 195 AND 340 CRPC NOT APPLICABLE 2012 SC

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Justice B.S. Chauhan, and Justice Jagdish Singh Khehar of the Supreme court of India in the case of Ram Dhan vs State Of U.P.& Anr Decided on 10 April, 2012 held as follows "Be that as it may, the chargesheet has been filed under Sections 177, 181, 182, 195 and 420 IPC. Section 177 IPC deals with an offence furnishing false information. Section 181 IPC deals with false statement on oath. Section 182 IPC deals with false information with intent to cause public servant to use his lawful power to the injury of another person. Section 195 IPC deals with giving or fabricating false evidence with intent to procure conviction of offence punishable with imprisonment for life or imprisonment. At least the provisions of Sections 177 and 182 deal with the cases totally outside the court. Therefore, the question of attracting the provisions of Sections 195 and 340 Cr.P.C. are not attracted. Section 195 IPC makes fabrication of false evidence punishable. It is not necessary that fabrication of false evidence takes place only inside the court as it can also be fabricated outside the court though has been used in the court. Therefore, it may also not attract the provisions of Section 195 Cr.P.C."

OTHER COLLECTED CASE LAWS

Apex Court in the case of State of Karnataka v. Hema Reddy, reported in AIR 1981 SC 1417. In the said decision at page 1424 it is observed, which reads as under:- "The underlying purpose of enacting Section 195(1) (b) and (c) and Section 476 seems to be to control the temptation on the part of the private parties considering themselves aggrieved by the offences mentioned in those sections to start criminal prosecutions on frivolous, vexatious or insufficient grounds inspired by a revengeful desire to harass or spite their opponents. These offences have been selected for the court's control because of their direct impact on the judicial process. It is the judicial process, in other words the administration of public justice, which is the direct and immediate object or victim of these offences and it is only by misleading the courts and thereby perverting the due course of law and justice that the ultimate object of harming the private party is designed to be realised. As the purity of the proceedings of the court is directly sullied by the crime the Court is considered to be the only party entitled to consider the desirability of complaining against the guilty party. The private party designed ultimately to be injured through the offence against the administration of public justice is undoubtedly entitled to move the court for persuading it to file the complaint. But such party is deprived of the general right recognized by Section 190 Cr.P.C. of the aggrieved parties directly initiating the criminal proceedings."

The Supreme Court in a decision in the matter of M.S. Ahlawat v. State of Haryana, reported in (2000)1 SCC 278 has observed which reads as under:- "Section 340 CrPC prescribes the procedure as to how a complaint may be preferred under Section 195 CrPC................. It is in respect of such offences the court has jurisdiction to proceed under Section 340 CrPC and a complaint outside the provisions of Section 340 CrPC cannot be filed by any civil, revenue or criminal court under its inherent jurisdiction."

N. Natarajan v. B.K.Subha Rao, reported in AIR 2003 SC 541 as well as the decision in the matter of M. Narayandas v. State of Karnataka, reported in 2004 SCC (Cri.) 118, which reads as under:- "In respect of offences adverted to in Section 195, Cr.P.C. there is a restriction that the same cannot be entertained unless a complaint is made by a court because the offence is stated to have been committed in relation to the proceedings in that Court. Section 340, Cr.P.C. is invoked to get over the bar imposed under Section 195, Cr.P.C."

"Sections 195 and 340 do not control or circumscribe the power of the police to investigate under the Criminal Procedure Code. Once investigation is completed then the embargo in Section 195 would come into play and the court would not be competent to take cognizance. However, that court could then file a complaint for the offence on the basis of the FIR and the material collected during investigation provided the procedure laid down in Section 340 of the Criminal Procedure Code is followed."


Justice D Trivedi, and Justice K Mehta of Gujarath High Court in case of Ajit D. Padiwal v. State of Gujarat and Anr., [2005] 46 (1) G.L.R. 743 In light of the various decisions of the Apex Court, which we have referred to, the position of law can be deduced as under:-
(i) Where an accused commits some offences which are separate and distinct from those contained in Section 195, Section 195 will affect only the offences mentioned therein unless such offences formed an integral part so as to amount to offences committed as a part of the same transaction, in which case the other offences also would fall within the ambit of Section 195 of the Code.
(ii) If the other offences which are not included under Section 195 are all together distinct offences and are in no way inter-related with each other then perhaps the court may be justified in taking cognizance so far as those offences are concerned and can proceed with a trial.
(iii) The provisions of Section 195 cannot be evaded by the device of charging a person with an offence to which that Section does not apply and then convicting him of an offence to which it does, upon the ground that such latter offence is a minor offence of the same character, or by describing the offence as being one punishable under some other section of the IPC, though in truth and substance the offence fall in the category of sections mentioned in Section 195 Cr.P.C.
(iv) Merely by changing the garb or label of an offence which is essentially an offence covered by the provisions of Section 195 prosecution for such an offence cannot be taken cognizance of by mis-describing or by putting a wrong label on it.

CASE LAWS ON BURDEN OF PROOF IN CRIMINAL CASES

Justice B.S. Chauhan, and Justice T.S. Thakur in a case of Divisional Controller, Ksrtc vs M.G.Vittal Rao Decided on 18 November, 2011 discussed following case laws along with its observations:- In a case where enquiry has been held independently of the criminal proceedings, acquittal in a criminal Court is of no help. The law is otherwise. Even if a person stood acquitted by a criminal Court, domestic enquiry can be held, the reason being that the standard of proof required in a domestic enquiry and that in a criminal case are altogether different. In a criminal case, standard of proof required is beyond reasonable doubt while in a domestic enquiry it is the preponderance of probabilities that constitutes the test to be applied.

In Nelson Motis v. Union of India and Anr., AIR 1992 SC 1981, this Court held : The nature and scope of a criminal case are very different from those of a departmental disciplinary proceeding and an order of acquittal, therefore, cannot conclude the departmental proceeding.

In State of Karnataka & Anr. v. T. Venkataramanappa, (1996) 6 SCC 455, this Court held that acquittal in a criminal case cannot be held to be a bar to hold departmental enquiry for the same misconduct for the reason that in a criminal trial, standard of proof is different as the case is to be proved beyond reasonable doubt but in the departmental proceeding, such a strict proof of misconduct is not required.

In State of Andhra Pradesh v. K. Allabaksh, (2000) 10 SCC 177, while dismissing the appeal against acquittal by the High Court, this Court observed as under:- That acquittal of the respondent shall not be construed as a clear exoneration of the respondent, for the allegations call for departmental proceedings, if not already initiated, against him.

Ajit Kumar Nag v. General Manager (PJ) Indian Oil Corporation Ltd., (2005) 7 SCC 764, held as under:- In our judgment, the law is fairly well settled. Acquittal by a criminal Court would not debar an employer from exercising power in accordance with the Rules and Regulations in force. The two proceedings, criminal and departmental, are entirely different. They operate in different fields and have different objectives. Whereas the object of criminal trial is to inflict appropriate punishment on the offender, the purpose of enquiry proceedings is to deal with the delinquent departmentally and to impose penalty in accordance with the service rules. In a criminal trial, incriminating statement made by the accused in certain circumstances or before certain officers is totally inadmissible in evidence. Such strict rules of evidence and procedure would not apply to departmental proceedings. The degree of proof which is necessary to order a conviction is different from the degree of proof necessary to record the commission of delinquency. The rule relating to appreciation of evidence in the two proceedings is also not similar. In criminal law, burden of proof is on the prosecution and unless the prosecution is able to prove the guilt of the accused "beyond reasonable doubt", he cannot be convicted by a Court of law. In a departmental enquiry, on the other hand, penalty can be imposed on the delinquent officer on a finding recorded on the basis of preponderance of probability. The issue as to whether disciplinary proceedings can be held at the time when the delinquent employee is facing the criminal trial, has also been considered from time to time.

In State of Rajasthan v. B.K. Meena & Ors., AIR 1997 SC 13, It would be evident from the above decisions that each of them starts with the indisputable proposition that there is no legal bar for both proceedings to go on simultaneously and then say that in certain situations, it may not be `desirable', `advisable' or `appropriate' to proceed with the disciplinary enquiry when a criminal case is pending on identical charges...........The only ground suggested in the above decisions as constituting a valid ground for staying the disciplinary proceedings is that `the defence of the employee in the criminal case may not be prejudiced'. This ground has, however, been hedged in by providing further that this may be done in cases of grave nature involving questions of fact and law. In our respectful opinion, it means that not only the charges must be grave but that the case must involve complicated questions of law and fact. Moreover, `advisability', `desirability' or `propriety', as the case may be, has to be determined in each case taking into consideration all the facts and circumstances of the case............One of the contending considerations is that the disciplinary enquiry cannot be - and should not be - delayed unduly. So far as criminal cases are concerned, it is well known that they drag on endlessly where high officials or persons holding high public offices are involved. They get bogged down on one or the other ground. They hardly ever reach a prompt conclusion..........If a criminal case is unduly delayed that may itself be a good ground for going ahead with the disciplinary enquiry even where the disciplinary proceedings are held over at an earlier stage. The interests of administration and good government demand that these proceedings are concluded expeditiously. It must be remembered that interests of administration demand that undesirable elements are thrown out and any charge of misdemeanour is enquired into promptly. The disciplinary proceedings are meant not really to punish the guilty but to keep the administrative machinery unsullied by getting rid of bad elements. The interest of delinquent officer also lies in a prompt conclusion of the disciplinary proceedings. If he is not guilty of the charges, his honour should be vindicated at the earliest possible moment and if he is guilty, he should be dealt with promptly according to law. It is not also in the interest of administration that persons accused of serious misdemeanour should be continued in office indefinitely, i.e., for long periods awaiting the result of criminal proceedings. It is not in the interest of administration. It only serves the interest of the guilty and dishonest.......


In Capt. M. Paul Anthony v. Bharat Gold Mines Ltd., AIR 1999 SC 1416, Supreme Court held that there can be no bar for continuing both the proceedings simultaneously. The Court placed reliance upon a large number of its earlier judgments, including Delhi Cloth and General Mills Ltd. v. Kushal Bhan, AIR 1960 SC 806; Tata Oil Mills Co. Ltd. v. The Workmen, AIR 1965 SC 155; Jang Bahadur Singh v. Baij Nath Tiwari, AIR 1969 SC 30; Kusheshwar Dubey v. M/s. Bharat Coking Coal Ltd. & Ors., AIR 1988 SC 2118; and held that proceedings in a criminal case and departmental proceedings can go on simultaneously except where both the proceedings are based on the same set of facts and the evidence in both the proceedings is common. In departmental proceedings, factors prevailing in the mind of the disciplinary authority may be many, such as enforcement of discipline or to investigate level of integrity of delinquent or other staff. The standard of proof required in those proceedings is also different from that required in a criminal case. While in departmental proceedings, the standard of proof is one of preponderance of probabilities, in a criminal case, the charge has to be proved by the prosecution beyond reasonable doubt. Where the charge against the delinquent employee is of a grave nature which involves complicated questions of law and fact, it is desirable to stay the departmental proceedings till conclusion of the criminal case. In case the criminal case does not proceed expeditiously, the departmental proceedings cannot be kept in abeyance for ever and may be resumed and proceeded with so as to conclude the same at an early date. The purpose is that if the employee is found not guilty his cause may be vindicated, and in case he is found guilty, administration may get rid of him at the earliest. ……. Since the facts and the evidence in both the proceedings, namely, the departmental proceedings and the criminal case were the same without there being any iota of difference, the distinction, which is usually drawn as between the departmental proceedings and the criminal case on the basis of approach and burden of proof, would not be applicable to the instant case.


In State Bank of India & Ors. v. R.B. Sharma, AIR 2004 SC 4144, same view has been reiterated observing that both proceedings can be held simultaneously, except where departmental proceedings in criminal case are based on same set of facts and evidence in both the proceedings is common. The Court observed as under:- The purpose of departmental inquiry and of prosecution are to put a distinct aspect. Criminal prosecution is launched for an offence for violation of duty. The offender owes to the society, or for breach of which law has provided that the offender shall make satisfaction to the public. So crime is an act of commission in violation of law or of omission of a public duty. The departmental inquiry is to maintain discipline in the service and efficiency of public service. While deciding the said case a very heavy reliance has been placed upon the earlier judgment of this Court in Depot Manager, Andhra Pradesh State Road Transport Corporation v. Mohd Yousuf Miya & Ors., AIR 1997 SC 2232, wherein it has been held that both proceedings can be held simultaneously unless the gravity of the charges demand staying the disciplinary proceedings till the trial is concluded as complicated questions of fact and law are involved in that case.


A similar view has been reiterated by this Court in Senior Superintendent of Post Offices v. A. Gopalan, AIR 1999 SC 1514; Kendriya Vidyalaya Sangathan & Ors. v. T. Srinivas, AIR 2004 SC 4127; Krishnakali Tea Estate v. Akhil Bhartiya Chah Mazdoor Sangh & Anr., (2004) 8 SCC 200; Commissioner of Police Delhi v. Narendra Singh, AIR 2006 SC 1800; South Bengal State Transport Corporation v. Span Kumar Mitra & Ors., (2006) 2 SCC 584; and Punjab Water Supply & Sewerage Board v. Ram Sajivan, (2007) 9 SCC 86. In Union of India & Ors. v. Naman Singh Shekhawat, (2008) 4 SCC 1, this Court held that departmental proceeding can be initiated after acquittal by the Criminal Court. However, the departmental proceeding should be initiated provided the department intended to adduce any evidence which could prove the charges against the delinquent officer. Therefore, initiation of proceeding should be bona fide and must be reasonable and fair.

In Pandiyan Roadways Corpn. Ltd. v. N. Balakrishnan, (2007) 9 SCC 755, Supreme Court re-considered the issue taking into account all earlier judgments and observed as under: There are evidently two lines of decisions of this Court operating in the field. One being the cases which would come within the purview of Capt. M. Paul Anthony v. Bharat Gold Mines Ltd (AIR 1999 SC 1416), and G.M. Tank v. State of Gujarat, (2006) 5 SCC C446. However, the second line of decisions show that an honourable acquittal in the criminal case itself may not be held to be determinative in respect of order of punishment meted out to the delinquent officer, inter alia, when: (i) the order of acquittal has not been passed on the same set of facts or same set of evidence; (ii) the effect of difference in the standard of proof in a criminal trial and disciplinary proceeding has not been considered or; where the delinquent officer was charged with something more than the subject-matter of the criminal case and/or covered by a decision of the civil court...........We may not be understood to have laid down a law that in all such circumstances the decision of the civil court or the criminal court would be binding on the disciplinary authorities as this Court in a large number of decisions points out that the same would depend upon other factors as well. Each case is, therefore, required to be considered on its own facts.


CONCLUSION BY COURT:- Thus, there can be no doubt regarding the settled legal proposition that as the standard of proof in both the proceedings is quite different, and the termination is not based on mere conviction of an employee in a criminal case, the acquittal of the employee in criminal case cannot be the basis of taking away the effect of departmental proceedings. Nor can such an action of the department be termed as double jeopardy. The judgment of this Court in Capt. M. Paul Anthony (supra) does not lay down the law of universal application. Facts, charges and nature of evidence etc. involved in an individual case would determine as to whether decision of acquittal would have any bearing on the findings recorded in the domestic enquiry.

In K.M. Nanavati v. State of Maharashtra, AIR 1962 SC 605, Subba Rao J. observed on page 617: "The alleged conflict between the general burden which lies on the prosecution and the special burden imposed on the accused under Section 105 of the Evidence Act is more imaginary than real. Indeed, there is no conflict at all. There may arise three different situations: (1) A statute may throw the burden of proof of all or some of the ingredients of an offence on the accused......(2) The special burden may not touch the ingredients of the offence, but only the protection given on the assumption of the proof of the said ingredients... ...(3) It may relate to an exception, some of the many circumstances required to attract the exception if proved affecting the proof of all or some of the ingredients of the offence...... In the second case, the burden of bringing the case under the exception lies on the accused.........the general burden to prove the ingredients of the offence, unless there is a specific statute to the contrary, is always on the prosecution, but the burden to prove the circumstances coming under the exceptions lies upon the accused. The failure on the part of the accused to establish all the circumstances bringing his case under the exception does not absolve the prosecution to prove the ingredients of the offence; indeed, the evidence, though insufficient to establish the exception, may be sufficient to negative one or more of the ingredients of the offence."

In Bhikari v. State of U.P., AIR 1966 SC 1, the Court quoted with approval the following passage from Dahyabhai v. State of Gujarat, AIR 1964 SC 1563: "The doctrine of burden of proof in the context of the plea of insanity may be stated in the following propositions. (1) The prosecution must prove beyond reasonable doubt that the accused had committed the offence with the requisite mens rea; and the burden of proving that always rests on the prosecution from the beginning to the end of the trial. (2) There is a rebuttable presumption that the accused was not insane, when he committed the crime......the accused may rebut it by placing before the Court all the relevant evidence oral, documentary or circumstantial but the burden of proof upon him is no higher than that rests upon a party to civil proceedings.........."

In Harbhajan Singh v. State of Punjab, AIR 1966 SC 97, it was observed on page 101: "Where the burden of an issue lies upon the accused he is not required to discharge that burden by leading evidence to prove his case beyond a reasonable doubt. That, no doubt, is the test prescribed while deciding whether the prosecution has discharged its onus to prove the guilt of the accused; but that is not a test which can be applied to an accused person who seeks to prove substantially his claim that his case falls under an Exception. Where an accused person is called upon to prove that his case falls under an Exception, law treats the onus as discharged if the accused person succeeds 'in proving a preponderance of probability'."

V.D. Jhingan v. State of U.P., AIR 1966 SC 1762 it was observed on page 1764: "It is sufficient if the accused person succeeds in proving a preponderance of probability in favour of his case. It is not necessary for the accused person to prove his case beyond a reasonable doubt or in default to incur a verdict of guilty. The onus of proof lying upon the accused person is to prove his case by a preponderance of probability."

Munshi Ram v. Delhi Administration, AIR 1968 SC 702, it was observed on page 703: "It is well settled that even if an accused does not plead self-defence it is open to the Court to consider such a plea if the same arises from the material on record ......... The burden of establishing that plea is on the accused and that burden can be discharged by showing preponderance of probabilities in favour of that plea on the basis of the material on record."

In AIR 1964 SC 1563, it was observed on page 1567:-- "The evidence so placed may not be sufficient to discharge the burden under Section 105 of the Evidence Act, but it may raise a reasonable doubt in the mind of a judge as regards one or other of the necessary ingredients of the offence itself. It may, for instance, raise a reasonable doubt in the mind of the judge whether the accused had the requisite intention laid down in Section 229 of the Indian Penal Code." It was further observed on page 1568:-- "Even if the accused was not able to establish conclusively that he was insane at the time he committed the offence, the evidence placed before the Court by the accused or by the prosecution may raise a reasonable doubt in the mind of the Court as regards one or more of the ingredients of the offence, including mens rea of the accused and in that case the Court would be entitled to acquit the accused on the ground that the general burden of proof resting on the prosecution was not discharged.''

In AIR 1966 SC 1 it was observed on page 3:-- "If upon the evidence adduced in the case whether by the prosecution or by the accused a reasonable doubt is created in the mind of the Court as regards one or more of the ingredients of the offence including mens rea of the accused he would be entitled to be acquitted." AIR 1962 SC 605 is the leading case on the scope and effect of Section 105 of the Evidence Act. It will save time by reproducing in extenso the observations made therein, which are as below: "The legal impact of the said provisions on the question of burden of proof may be stated thus: In India, as it is in England, there is a presumption of innocence in favour of the accused as a general rule, and it is the duty of the prosecution to prove the guilt of the accused; to put it in other words, the accused is presumed to be innocent until his guilt is established by the prosecution. But when an accused relies upon the General Exceptions in the Indian Penal Code or on any special exception or proviso contained in any other part of the Penal Code, or in any law defining an offence. Section 105 of the Evidence Act raises a presumption against the accused and also throws a burden on him to rebut the said presumption. Under that section the Court shall presume the absence of circumstances bringing the case within any of the exceptions, that is, the Court shall regard the non-existence of such circumstances as proved till they are disproved. An illustration based on the facts of the present case may bring out the meaning of the said provision. The prosecution alleges that the accused intentionally shot the deceased; but the accused pleads that, though the shots emanated from his revolver and hit the deceased, it was by accident, that is, the shots went off the revolver in the course of a struggle in the circumstances mentioned in Section 80 of the Indian Penal Code and hit the deceased resulting in his death. The Court then shall presume the absence of circumstances bringing the case within the provisions of Section 80 of the Indian Penal Code, that is, it shall presume that the shooting was not by accident, and that the other circumstances bringing the case within the exception did not exist; but this presumption may be rebutted by the accused by adducing evidence to support his plea of accident in the circumstances mentioned therein. This presumption may also be rebutted by admissions made or circumstances elicited by the evidence led by the prosecution or by the combined effect of such circumstances and the evidence adduced by the accused. But the section does not in any way affect the burden that lies on the prosecution to prove all the ingredients of the offence with which the accused is charged: that burden never shifts. The alleged conflict between the general burden which lies on the prosecution and the special burden imposed on the accused under Section 105 of the Evidence Act is more imaginary than real. Indeed, there is no conflict at all. There may arise three different situations: (1) A statute may throw the burden of proof of all or some of the ingredients of an offence on the accused: (See Sections 4 and 5 of the Prevention of Corruption Act). (2) The special burden may not touch the ingredients of the offence, but only the protection given on the assumption of the proof of the said ingredients: (see Sections 77, 78, 79, 81 and 88 of the Indian Penal Code). (3) It may relate to an exception, some of the many circumstances required to attract the exception if proved affecting the proof of all or some of the ingredients of the offence: (see Section 80 of the Indian Penal Code). In the first case the burden of (the) proving the ingredients or some of the ingredients of the offence, as the case may be, lies on the accused. In the second case, the burden of bringing the case under the exception lies on the accused. In the third case, though the burden lies on the accused to bring his case within the exception, the facts proved may not discharge the said burden, but may affect the proof of the ingredients of the offence. An illustration may bring out the meaning. The prosecution has to prove that the accused shot dead the deceased intentionally and thereby committed the offence of murder within the meaning of Section 300 of the Indian Penal Code; the prosecution has to prove the ingredients of murder, and one of the ingredients of that offence is that the accused intentionally shot the deceased; the accused pleads that he shot at the deceased by accident without any intention or knowledge in the doing of a lawful act in a lawful manner by lawful means with proper care and caution: the accused against whom a presumption is drawn under Section 105 of the Evidence Act that the shooting was not by accident in the circumstances mentioned in Section 80 of the Indian Penal Code, may adduce evidence to rebut that presumption. That evidence may not be sufficient to prove all the ingredients of Section 80 of the Indian Penal Code, but may prove that the shooting was by accident or inadvertence, i.e., it was done without any intention or requisite state of mind, which is the essence of the offence, within the meaning of Section 300, Indian Penal Code on the essential ingredients of the offence of murder. In that event, though the accused failed to establish to bring his case within the terms of Section 80 of the Indian Penal Code, the Court may hold that the ingredients of the offence have not been established or that the prosecution has not made out the case against the accused. In this view it might be said that the general burden to prove the ingredients of the offence, unless there is a specific statute to the contrary, is always on the prosecution, but the burden to prove the circumstances coming under the exceptions lies upon the accused. The failure on the part of the accused to establish all the circumstances bringing his case under the exception does not absolve the prosecution to prove the ingredients of the offence; indeed, the evidence, though insufficient to establish the exception, may be sufficient to negative one or more of the ingredients of the offence." "As in England so in India, the prosecution must prove the quilt of the accused, i.e., it must establish all the ingredients of the offence with which he is charged. As in England so also in India, the general burden of proof is upon the prosecution; and if, on the basis of the evidence adduced by the prosecution or by the accused, there is a reasonable doubt whether the accused committed the offence he is entitled to the benefit of doubt. In India if an accused pleads an exception within the meaning of Section 80 of the Indian Penal Code, there is a presumption against him and the burden to rebut that presumption lies on him. In England there is no provision similar to Section 80 of the Indian Penal Code, but Viscount Sankey, L. C., makes it clear that such a burden lies upon the accused if his defence is one of insanity and in a case where there is a statutory exception to the general rules of burden of proof. Such an exception we rind in Section 105 of the Indian Evidence Act." In AIR 1964 SC 1563 (supra) the law was laid down as below: "It is fundamental principle of criminal jurisprudence that an accused is presumed to be innocent and, therefore, the burden lies on the prosecution to prove the guilt of the accused beyond reasonable doubt. The prosecution, therefore, in a case of homicide shall prove beyond reasonable doubt that the accused caused death with the requisite intention described in Section 299 of the Indian Penal Code. This general burden never shifts and it always rests on the prosecution. But, Section 84 of the Indian Penal Code provides that nothing is an offence if the accused at the time of doing that act, by reason of unsoundness of mind was incapable of knowing the nature of his act or what he was doing was either wrong or contrary to law. This being ah exception, under Section 105 of the Evidence Act, the burden of proving the existence of circumstances bringing the case within the said exception lies on the accused, and the Court shall presume the absence of such circumstances. Under Section 105 of the Evidence Act, read with the definition of "shall presume" in Section 4 thereof, the Court shall regard the absence of such circumstances as proved unless, after considering the matters before it, it believes that the said circumstances existed or their existence was so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that they did exist. To put it in other words, the accused will have to rebut the presumption that such circumstances did not exist, by placing material before the Court sufficient to make it consider the existence of the said circumstances so probable that a prudent man would act upon them. The accused has to satisfy the standard of a "prudent man." If the material placed before the Court, such as, oral and documentary evidence, presumptions, admissions or even the prosecution evidence satisfies the test of "prudent man" the accused will have discharged his burden. The evidence so placed may not be sufficient to discharge the burden under Section 105 of the Evidence Act, but it may raise a reasonable doubt in the mind of a judge as regards one or other of the necessary ingredients of the offence itself. It may, for instance, raise a reasonable doubt in the mind of the judge whether the accused had the requisite intention laid down in Section 299 of the Indian Penal Code. If the Judge has such reasonable doubt, he has to acquit the accused, for in that event the prosecution will have failed to prove conclusively the guilt of the accused. There is no conflict between the general burden, which is always on the prosecution and which never shifts, and the special burden that rests on the accused to make out his defence of insanity." "The doctrine of burden of proof in the context of the plea of insanity may be stated in the following propositions: (1) The prosecution must prove beyond reasonable doubt that the accused had committed the offence with the requisite mens rea, and the burden of proving that always rests on the prosecution from the beginning to the end of the trial. (2) There is a rebuttable presumption that the accused was not insane, when he committed the crime, in the sense laid down by Section 84 of the Indian Penal Code: the accused may rebut it by placing before the Court all the relevant evidence--oral, documentary or circumstantial, but the burden of proof upon him is no higher than that rests upon a party to civil proceedings. (3) Even if the accused was not able to establish conclusively that he was insane at the time he committed the offence, the evidence placed before the Court by the accused or by the prosecution may raise a reasonable doubt in the mind of the Court as regards one or more of the ingredients of the offence, including mens rea of the accused and in that case the Court would be entitled to acquit the accused on the ground that the general burden of proof resting on the prosecution was not discharged."


The Supreme Court in AIR 1962 SC 605 while considering the question of burden of proof resting on the accused, has laid down three different categories: "(1) A statute may throw the burden of proof of all or some of the ingredients of an offence on the accused: (2) The special burden may not touch the ingredients of the offence but only the protection given on the assumption of the proof of the said ingredients (See Sections 77, 78, 79, 81 and 88 of the Indian Penal Code): (3) It may relate to an exception, some of the many circumstances required to attract the exception if proved affecting the proof of all or some of the ingredients of the offence: (See Section 80 of the Indian Penal Code)."

In AIR 1966 SC 97 the Supreme Court observed: "Where an accused person is called to prove that his case falls under an exception, law treats that onus as discharged if the accused succeeds in proving a preponderance of probability. The onus on an accused person may well be compared to the onus on a party in civil proceedings ................."

The effect of Section 105, read with Sections 3 and 4 of the Indian Evidence Act, was considered by the Supreme Court in the case of AIR 1962 SC 605. At page 616 of the report Subba Rao J., (as he then was) observed as follows: "The legal impact of the said provisions on the question of burden of proof may be stated thus: In India, as it is in England there is a presumption of innocence in favour of the accused as a general rule and it is the duty of the prosecution to prove the guilt of the accused; to put it in other words, the accused is presumed to be innocent until Ms guilt is established by the prosecution. But when an accused relies upon the General Exceptions in the Indian Penal Code or on any special exception or proviso contained in any other Dart of the Penal Code, or in any law defining an offence, Section 105 of the Evidence Act raises a presumption against the accused and also throws a burden on him to rebut the said presumption. Under that section the Court shall presume the absence of circumstances bringing the case within any of the excetions, that is, the Court shall regard the non-existence of such circumstances as proved till they are disproved."


In 1956 S.C.R. 199 [Shambhu Nath Mehra vs. State of Ajmer], the Supreme Court held that Section 106 does not abrogate the well established statute of criminal law that except in very exceptional classes of cases, the burden which lies on the prosecution to prove its case never shifts and that Section 106 is not intended to relieve the prosecution of that burden. The learned Judges observed that on the contrary, Section 106 is intended to meet certain exceptional cases where it is impossible and disproportionately difficult for the prosecution to establish facts which are especially within the knowledge of the accused and which can be proved by him without difficulty or inconvenience. The Section cannot be used to undermine the well established rule of law that, save in a very exceptional class of case, the burden is on the prosecution and never shifts. The following extract is relevant : "..... The word 'especially' stresses that. It means facts that are pre-eminently or exceptionally within his knowledge. If the section were to be interpreted otherwise, it would lead to the very startling conclusion that in a murder case the burden lies on the accused to prove that he did not commit the murder because who could know better than he whether he did or did not.

In 1965 (3) S.C.R. 235 [Harbhajan Singh vs. State of Punjab], the Supreme Court, quoting Viscount Sankey in [1935] A.C. 452 [Woolmington vs. Director of Public Prosecutions], emphasised the following fundamental doctrine of criminal law that the onus to prove its case lies on the prosecution : "No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained.

In 1966 (3) S.C.C. 736 [V.D. Jhingan vs. State of Uttar Pradesh], which arose out of the Prevention of Corruption Act, 1947, it was contended that, "... mere receipt of money did not justify the raising of the presumption and that something more than the mere receipt of the money had to be proved." This argument was rejected and it was held that the mere receipt of the money was sufficient to raise a presumption. In this case, the Supreme Court again, on a construction of that particular provision, held that it was sufficient if the accused person proves the preponderance of probability for discharging the burden. Woolmington's case is again quoted by the Supreme Court. In (1972) 3 S.C.C. 22 [Dr. S.L. Goswami vs. State of Madhya Pradesh], the Supreme Court held that it is no part of the prosecution's duty to somehow hook the crook and that even in cases where the defence of the accused does not appear to be credible or is palpably false, the burden on the prosecution does not become any less and where the onus shifts to the accused, he will be entitled to the benefit of reasonable doubt if he probabilises his plea.


In (1973) 2 S.C.C. 808 [Kaliram vs. State of Himachal Pradesh], the Supreme Court held that if some material is brought on record, consistent with the innocence of the accused which may reasonably be true, even though it is not positively proved to be true, the accused would be entitled to the benefit of acquittal. The Supreme Court here construes the word "doubt" in the context of reasonable doubt regarding the guilt of the accused and as regards the rule of benefit of doubt, the Supreme Court helds that the doubt regarding the guilt of the accused should be a reasonable one and not the doubt of a vacillating mind or a mind that it is incapable of reaching a firm conclusion or so timid that is is hesitant and afraid to take things to their natural consequences. Similarly, the rule regarding the benefit of doubt does not warrant acquittal of the accused by resort to surmises, conjectures or fanciful considerations.


In (1981) 3 S.C.C. 199 [State of Maharashtra vs. Wasudeo Ramchandra Kadalwar], the Supreme Court dealt with the question of burden of proof under Section 5(1)(e) and 5(2) of Prevention of Corruption Act, 1947. The Supreme Court construed the difficult question as to the nature and extent of burden of proof under Section 5(1)(e) of the Act. According to their lordships, the expression 'burden of proof' has two distinct meanings (1) the legal burden, i.e., The burden of establishing the guilt, and (2) the evidential burden, i.e., the burden of leading evidence. The legal burden, i.e., the duty to prove the guilt never shifts from the prosecution, but the burden of proving a particular fact may be laid by the law on the accused. It was submitted that by virtue of the impugned Section, prosecution was not required to prove anything.


The following proposition of law as laid down in J.C. Smith & Brian Hogan's Criminal Law, 6th Edition, pg. 31 was referred to by the Supreme Court in (2003) 9 S.C.C. 700 [R. Balakrishna Pillai vs. State of Kerala] : "It is a general principle of criminal law that a person may not be convicted of a crime unless the prosecution have proved beyond reasonable doubt both (a) that he caused a certain event or that responsibility is to be attributed to him for the existence of a certain state of affairs, which is forbiden by criminal law, and (b) that he had a defined state of mind in relation to the causing of the event or the existence of the state of affairs. The event, or state of affairs, is called the actus reus and the state of mind the mens rea of the crime.



In (2001) 4 S.C.C. 375 [Sucha Singh vs. State of Punjab], the Supreme Court held that the presumption under Section 106 of the Indian Evidence Act is not intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt, but it would apply to cases where the prosecution has succeeded in proving facts, from which a reasonable inference can be drawn regarding the existence of certain other facts, unless the accused by virtue of special knowledge regarding such facts failed to offer any explanation which might drive the court to draw a different inference. What is reasonableness all about has been explained by the Supreme Court in Gurbachan Singh vs. Satpal Singh [A.I.R. 1990 S.C. 209] in the following words : "There is a higher standard of proof in criminal cases than in civil cases, but there is no absolute standard in either of the cases.


In (2004) 3 S.C.C. 753 [T. Shankar Prasad vs. State of A.P.], while dealing with Section 4 of the Prevention of Corruption Act, the Supreme Court held as follows : "When the sub-section deals with legal presumption, it is to be understood as in terrorem, i.e. in tone of a command that it has to be presumed that the accused accepted the gratification as a motive or reward for doing or forbearing to do any official act etc. if the condition envisaged in the former part of the section is satisfied." "For the purpose of reaching one conclusion, the court can rely on a factual presumption. Unless the presumption is disproved or dispelled or rebutted, the court can treat the presumption as tantamounting to proof.



What is reasonable doubt has been explained in (2003) 12 S.C.C. 395 [Ramakant Rai vs. Madan Rai] in the following words : Doubts would be called reasonable if they are free from a zest for abstract speculation. Law cannot afford any favourite other than the truth. To constitute reasonable doubt, it must be free from an overemotional response. Doubts must be actual and substantial doubts as to the guilt of the accused persons arising from the evidence, or from the lack of it, as opposed to mere vague apprehensions. A reasonable doubt is not an imaginary, trivial or a merely possible doubt; but a fair doubt based upon reason and common sense. It must grow out of the evidence in the case.


In (2001) 10 S.C.C. 340 [Limbaji vs. State of Maharashtra], the Supreme Court holds a presumption of fact has been held as "..... an inference of fact drawn from another proved fact taking due note of common experience and common course of events." The following extract from Taylor in his treatise on The Law of Evidence is very interesting : Thus, to borrow an apt illustration from Maule, J., if a man were to go into the London Docks quite sober, and shortly afterwards were found very drunk, staggering out of one of the cellars, in which above a million gallons of wine are stored, I think, says the learned Judge and most persons will probably agree with him that this would be reasonable evidence that the man had stolen some of the wine in the cellar, though no proof were given that any particular vat had been broached, and that any wine had actually been missed.


In a different context, while dealing with the Gold (Control) Act, 1968, the Supreme Court, in (2004) 7 S.C.C. 33 [Gopaldas Udhavdas Ahuja vs. Union of India], held as follows : "The analysis of the various provisions of the 1968 Act (repealed in 1990) shows that the Act made possession of primary gold an offence. Under the Act, possession of primary gold was made an offence under Section 85(1)(ii) read with Section 8(1). The said Act provided for a special machinery for confiscation of unauthorised gold under Section 71(1) and for trial of the person concerned under Section 85(1). ....... Since possession was an offence, knowledge in possession of the unauthorised article was an essential ingredient of the said offence. Where a statute forbids an act, doing of that act itself supplies the mens rea. In such a case, the prosecution need only to prove commission of the prohibited act and it is for the person concerned to bring himself within the statutory defence, which in the present case was provided for in the proviso to Section 71(1). However, in view of Section 98-B, the accused had to prove beyond reasonable doubt that he had no knowledge of the possession of the unauthorised article.


In Hiten Pal Dalal v. Bratindranath Banerjee [(2001) 6 SCC 16], this Court categorically opined : "Presumptions are rules of evidence and do not conflict with the presumption of innocence, because by the latter, all that is meant is that the prosecution is obliged to prove the case against the accused beyond reasonable doubt. The obligation on the prosecution may be discharged with the help of presumptions of law or fact unless the accused adduces evidence showing the reasonable possibility of the non-existence of the presumed fact. In other words, provided the facts required to form the basis of a presumption of law exist, no discretion is left with the court but to draw the statutory conclusion, but this does not preclude the person against whom the presumption is drawn from rebutting it and proving the contrary. A fact is said to be proved when, "after considering the matters before it, the court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists" Therefore, the rebuttal does not have to be conclusively established but such evidence must be adduced before the court in support of the defence that the court must either believe the defence to exist or consider its existence to be reasonably probable, the standard of reasonability being that of the "prudent man"".


M.S. Narayana Menon Alias Mani V. State of Kerala and Anr. [(2006) 6 SCC 39] wherein it was held : Applying the said definitions of proved or disproved to the principle behind Section 118(a) of the Act, the court shall presume a negotiable instrument to be for consideration unless and until after considering the matter before it, it either believes that the consideration does not exist or considers the non-existence of the consideration so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that the consideration dos not exist. For rebutting such presumption, what is needed is to raise a probable defence. Even for the said purpose, the evidence adduced on behalf of the complainant could be relied upon. This Court clearly laid down the law that standard of proof in discharge of the burden in terms of Section 139 of the Act being of preponderance of a probability, the inference therefor can be drawn not only from the materials brought on record but also from the reference to the circumstances upon which the accused relies upon. Categorically stating that the burden of proof on accused is not as high as that of the prosecution, it was held; Presumption drawn under a statute has only an evidentiary value. Presumptions are raised in terms of the Evidence Act. Presumption drawn in respect of one fact may be an evidence even for the purpose of drawing presumption under another.


In U.Ponnappa Moothan sons, Palghat v. Catholic Syrian Bank Ltd. & Ors. [(199l) 1 SCC 113], a Bench of two Judges of this Court was to consider the presumption under Section 118(g) and Section 9 of the Act when the proviso to Section 118 was put in issue. This Court held that when the presumption, as provided under section 118(g), gets rebutted under the circumstances mentioned therein, the burden of proving that he is a holder in due course lies upon him. In a given case, the court, while examining these requirements including valid consideration must also go into the question whether there was a contract express or implied, for crediting the proceeds to the account of the bearer before receiving the same. It was held that it is a question of fact in each case, namely, whether there was such a contract express or implied that the customer should be entitled to draw presumption against the amount of cheque before it is clear. The words "without having sufficient cause to believe" have to be understood in this background.


In Indian Bank v. K. NatarajaPillai & Anr. [(1993) 1 SCC 493], another Bench of two Judges was to consider whether for granting a short-term loan by the bank, further loan of Rs.1,00.000 was sanctioned to cover up the deficiency for which promissory note wan executed alongwith property hypothecated for short- term loans. It was contended that the sanction of Rs. 1,00,000/under the promissory note was towards discharge of the equitable mortgage and not for cash consideration and that, therefore it was not supported by consideration, It was held that the promissory note was fully supported by consideration and the presumption of passing of the consideration got attracted.

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