ticket less journy of a magistrate - all are equal before law? but it is just and necessary to provide aminities to the magistrate after seeing the plights of the officer instead of sending her out of office.

                                   1
                                                   REPORTABLE



               IN THE SUPREME COURT OF INDIA


                CIVIL APPELLATE JURISDICTION
                CIVIL APPEAL NO. 6966 OF 2004


lARUNDHATI ASHOK WALAVALKAR                   .... Appellant

 Versus

STATE
OF




MAHARASHTRA                        .... Respondent




                           JUDGMENT

Dr. MUKUNDAKAM SHARMA, J.

1.   This appeal was filed by the appellant herein being aggrieved

by the judgment and order passed by the Division Bench of the
                                   2
Bombay High Court dismissing the writ petition filed by the

appellant herein.

2.   The issue that is sought to be raised in this appeal by the

appellant is whether the Disciplinary Authority was justified in

imposing on the appellant the punishment of compulsory retirement

in terms of Rule 5(1)(vii) of the Maharashtra Civil Services




(Discipline & Appeal) Rules, 1979 on the ground that the said

appellant-Magistrate was found travelling without ticket in a local

train thrice and on each occasion, the behaviour of the said

appellant-Magistrate with the Railway staff in asserting that the

Magistrates need not have a ticket was improper and constituted

grave misconduct.
                                     3
3.   The allegation against the appellant was that she had travelled

without tickets on 21.2.1997, 13.5.1997 and also on 5.12.1997

when she was caught.      The charges here not only related to such

incidents of ticketless travelling but also about misusing her official

identity card and for making unnecessary scene on the Railway

platform and giving threats to the Railway staff which was




considered to be misconduct unbecoming of a judicial officer as per

Rule 3(iii) of the Maharashtra Civil Services Conduct Rules, 1979.

4.   In order to understand the gravity of the charges and since it

was the submission of the counsel appearing for the appellant that

she was not responsible for any travelling without tickets, we have

to narrate the background facts leading to the issuance of
                                   4
memorandum of charges against her.

5.     On 28.5.1992, the appellant was appointed as a Metropolitan

Magistrate at Bombay.       Allegations were made by the Railway

officials against the appellant for three incidents that happened on

21.2.1997, 13.5.1997 and on 5.12.1997.      While the appellant on

5.12.1997 boarded the train at Mulund, she was accosted by two

ticket

collectors

during

the

course of

her

journey

from

Mulund

to Dadar who asked her to produce ticket or her pass.           The

appellant, however, stated that she had given her orderly money to

buy a season pass which would be produced at the Dadar Railway

Station. Even at Dadar Railway Station, she could not produce any

ticket for her travel between the stations i.e. from Mulund to Dadar
                                    5
when she was asked to pay the Railway fare and fine for having

travelled without ticket from Mulund to Dadar. However, another

Metropolitan Magistrate travelling by the next train reached the

Dadar Station and on being informed about the plight of the

appellant, he came to the    Station Superintendent    and   handed

over to the appellant Rs. 102/- which was paid by the appellant

to       the

railway

officers

against a

receipt.

Even

prior      to

the     said

date,      it

was alleged that the appellant travelled without tickets on two dates

i.e. 21.2.1997 and 13.5.1997.

6.      On receipt of the aforesaid allegations made against the

appellant by the Railway officers, a preliminary inquiry was held, on

completion of which a Report was submitted on 25.3.1998 holding
                                     6
that the incidents of ticketless travelling by the appellant on the

aforesaid three dates had been established against the appellant.

7.   Consequent thereto, a Memorandum of Charges was framed

against the appellant and the same was issued on 17.12.1998.

There were two specific articles of charges framed against the

appellant which were to the following effect:-




          1. The petitioner claimed that the Magistrates are not
                required to buy ticket or pass and are allowed to
                travel in any local train, in first class without any
                travel authority for the purpose of attending duties.
          2. The petitioner was caught thrice for travelling in first
             class compartment of local train without ticket / travel
             authority and when caught the petitioner entered into
             arguments with ticket checking staff and on
             05.12.1997 at about 10:30 to 11 a.m., created a scene
             and threatened the ticket collectors at Dadar railway
             station when the authorities insisted that the
             petitioner pay the necessary charges for travelling
                                    7
              without ticket.

8.    Alongwith the aforesaid Memorandum of Charges, the articles

of charges with the statement of imputation of misconduct with list

of charges alongwith list of witnesses were forwarded to the

appellant.

9.    The aforesaid disciplinary proceeding of the appellant was held

alongwith

two other




Metropolitan Magistrates namely Mrs. Rama Waghule and Mr. V.V.

Phand.      Since we are not concerned with the charges framed

against the other two officers, we refrain from referring to the same

in the present case.

10.   After receipt of the aforesaid Memorandum of Charges, the

appellant sent her reply taking up a definite stand that the alleged
                                     8
incident of ticketless travelling on 21.2.1997 was deliberately

concocted and imaginary whereas regarding the remaining two

incidents of ticketless travelling, it was stated by her that the same

were due to unavoidable circumstances as set out more particularly

in the said reply.

11.     The disciplinary authority having not been satisfied with the

reply

submitted

by       the

appellant

ordered

for




conducting an inquiry against the appellant and appointed the

inquiry officer for holding a departmental inquiry against the

appellant with reference to the charges levelled against her.    After

conducting a detailed       inquiry and examining a number          of

witnesses, the inquiry officer on 28.10.1999 submitted his report

stating that the charges alleged against the appellant are proved.
                                   9
The inquiry officer held that the appellant was found travelling

without ticket at least thrice and her behaviour on each occasion

was far from proper and not commensurate with the behaviour of a

judicial officer.   The aforesaid Report submitted by the Inquiry

Officer was considered by the disciplinary authority consisting of

the Chief Justice and Judges of the Bombay High Court and it was

decided to

issue      a

notice    to

the

appellant

to    show

cause.




Consequently, a show cause notice was issued to the appellant

asking her to explain as to why the findings recorded by the inquiry

officer would not be accepted and why a major penalty including a

penalty of dismissal from service would not be imposed on the

appellant.

12.     The appellant submitted an application on 24.01.2000,
                                       10
pleading that she may be permitted to examine herself and three

independent witnesses as and by way of additional evidence.            The

said    application   was,   however,    rejected   by   the   disciplinary

authority, but the High Court extended the time for filing the reply

pursuant to which she submitted her reply to the show cause notice

on 9.3.2000.     After receipt of the aforesaid reply, the disciplinary

authority




considered her case and took a decision that she was guilty of

misconduct and therefore decided to impose the penalty of

compulsory     retirement    which      was   accepted    by   the   State

Government and consequently the impugned order of compulsory

retirement was issued against the appellant on 27.9.2000.

13.    Being aggrieved by the order passed, the appellant filed a writ
                                    11
petition in the High Court challenging the legality and validity of the

aforesaid order of compulsory retirement from the service.

14.      The Division Bench of the High Court, as stated earlier

dismissed the writ petition as against which the present appeal was

filed.     When the matter was listed, we heard the learned counsel

appearing for the parties at length and also perused the records and




scrutinised the same very minutely in order to arrive at a categorical

finding regarding the guilt of the appellant. Before dwelling further

it will be useful to examine few relevant facts of the present case.

There are three incidents on the basis of which charges of

misconduct against the appellant were framed. The said incidents

were on 21.2.1997, 13.5.1997 and 5.12.1997.            So far as the
                                    12
incident of ticketless travelling on 21.2.1997 is concerned, it is the

case of the Railway as also of the Disciplinary Authority that she

had travelled without ticket on the said date and when she was

accosted to show her pass or ticket, she simply passed her identity

card to the hands of the ticket collector and went away before she

could be caught physically. The aforesaid identity card of the

appellant

was

however,

returned

to her on

24.2.1997

by      the

Railway

officials.

The aforesaid incident was made a charge against which she had

taken a categorical defence that she had lost her official identity

card and on receiving information that the same was found at the

Dadar Railway Station, she got it collected through a Constable

from the Railway authorities on 24.2.1997.    Her specific case in the
                                    13
departmental proceeding against the said charge was that she had

never travelled by train on 21.2.1997.

15.    So far as the said defence is concerned, the High Court found

the same to be without any basis particularly in view of the fact that

if the appellant was travelling as stated by her in a car during the

month of February, 1997, there was no reason why her official

identity

card

could      be

found and

traced     at

Dadar

Railway

Station.

It       was

also held that she was the best person to give some idea as to how

she lost her identity card at the Dadar Railway Station.   It was also

held that since no evidence was led by the appellant on that behalf

and since also the Constable who had allegedly collected the

identity card from the Railway authorities on 24.2.1997 had not
                                     14
been examined by her to establish her defence, the aforesaid

defence taken by the appellant was not accepted by the High Court

and it was held that the said charge of ticketless travelling on

21.2.1997 is proved in the facts and circumstances of the present

case.

16.     We find no reason to take a different view from the aforesaid

findings

recorded

by       the

High

Court.

The

specific

stand      of

the

Railway and also of the departmental authority in the inquiry is that

the appellant when accosted for her ticketless travelling, she simply

passed her identity card to the hands of the ticket collector and

went away and giving no opportunity to the ticket collector to detain

her.     If it was her case that she lost her identity card, it was
                                     15
required for her to immediately lodge a complaint thereto with the

concerned authority or with the police which she never did.        The

said identity card was in fact returned to her by the Railway officials

on 24.2.1997.      We could not find any justifiable reason of the

identity card being recovered at the Dadar Railway Station if she

had not at all travelled by train on that day.

17.

There

could   be

no    other




conclusions than what is arrived at by the High Court that she had

indeed travelled on that day without any ticket and when accosted,

she simply passed the identity card to the hands of the ticket

collector and walked away from the place.

18.   So far as the incident of 13.5.1997 is concerned, the specific

defence of the appellant is that she had purchased a first class
                                   16
ticket on 13.5.1997 but the same was lost while boarding the train

which was not accepted by the High Court holding the same to be

highly improbable as she had voluntarily paid the charges after

stating that Magistrates travelling without ticket could not be asked

to pay the fine. Fact remains that on 13.5.1997 also the appellant

could not produce any valid ticket or pass when she was accosted

and

asked     to

produce

her   valid




ticket/pass. The defence that she lost ticket while boarding the

train could always be taken by anybody, but in our concerned view,

there must be some basic facts supporting such statement which

could not be produced by the appellant in the instant case.

19.   So far as the incident on 5.12.1997 is concerned, we find that

there is no dispute with regard to the fact that on that particular
                                   17
day, she boarded a first class compartment at Mulund Station

although she did not have a valid ticket/pass in her possession.

She had paid a penalty which was given to her by one of her

colleagues.    Later on she had taken a stand that she had

purchased a season ticket but the said ticket was also found to

have been purchased at Dadar station.

20.   On




5.12.1997, when the appellant was caught without ticket and when

she was asked to produce the ticket, she could not do so nor was

she prepared to pay the charges on the ground that she was a

Magistrate and therefore has a right to travel without ticket. It is

established from the record that subsequently, however, she paid

the amount of Rs. 102/-
                                      18
21.   In this connection, we may also refer to a letter written by her

on 8.12.1997 to the General Manager, Central Railway, Mumbai.

The said letter was admittedly written by her and it reads as

follows:-

      "I would like to mention to you that sometimes, I am required
      to enter into your local Trains to reach my Court in time, as the
      vehicle given to us is a pooling one which takes a very long
      time due to unexpected traffic on the roads or break downs.




      During such occasions, I am unable to buy tickets because of
      short of time and consequently it had happened so, that I had
      to face your nagging ticket collectors.       Your lady ticket
      collectors at Dadar instead of understanding our difficulties
      have further harassed us in the most insulting manner and
      this has left a deed scar in our mind. If you care to know how
      nasty your people could be, you may depute a representative
      to whom we can explain the facts.
      I am aware that the Metropolitan Magistrates handling the
      matters of any railway police station on central line get first
      class free pass right from Nagpur to Igapturi. Even the staff
      attached to such Magistrates also get free passes. We also
                                      19
      attend to the work of railways on Saturdays, Sundays and
      holidays. Are we therefore, not entitled, at least to stand in
      the first class compartments of local trains only for the
      purpose of reaching our Courts in time during such
      emergencies ? Please do the needful in this matter urgently
      by giving necessary instructions to the ticket collectors so that
      we are not humiliated by your ticket collectors on this count
      and made to pay fine.
      If you are of the negative opinion, that even this little courtesy
      cannot be extended to us, please communicate to me, so that I
      am prepared for such eventualities.        Your early response
      would be highly appreciated."




22.   The aforesaid letter as also the fact that she could not produce

any ticket or pass for her travel between Mulund and Dadar station

clearly establishes the fact that on 5.12.1997, she had travelled

without ticket.

23.   Despite the aforesaid position, she had written a letter to the

General Manager, Central Railway, Mumbai clearly stating that at
                                    20
times she is unable to buy tickets because of shortage of time for

which she had been harassed by the ticket collectors, therefore, she

should be provided a free passage in a First Class compartment of

local trains for the purpose of reaching the courts in time during

such emergencies.

24.    A letter written immediately after the incident on 5.12.1997

clearly

indicates

that      she

had

travelled

without

ticket    on

5.12.1997

and       she

had taken offence for demanding a ticket from her as she is a

Magistrate and she had made complaint against the ticket

collectors.     The offence as alleged against the appellant in the

memo of charges therefore for 5.12.1997 is established on her own

showing and therefore, the inquiry officer was justified in coming to
                                      21
the conclusion that the charges levelled against her stood proved.

25.     The next question that is posed before us is whether the

inquiry officer was justified in recommending punishment to the

appellant.

26.     We have looked into the aforesaid issue also in the light of the

provisions of the Rules.      Rule 8(25)(e) of the Rules provided and

permitted

an

inquiry

officer    to




recommend for the punishment to be provided in the facts of the

case.     That provision which found place in the earlier Rules,

however, came to be deleted from the aforesaid Rules by the

amendment brought in the Rules in the year 1997. In that context,

it was submitted by the learned counsel appearing for the appellant

that since a recommendation has been made by the inquiry officer
                                     22
regarding punishment, the entire findings are vitiated and therefore

liable to be set aside and quashed.

27.   We are, however, unable to accept the aforesaid submissions.

On going through the records, we find that the disciplinary

authority considered the records and thereafter came to an

independent finding that the appellant is guilty of the charges

framed

against

her       of




misconduct and that in the facts and circumstances of the case, a

major penalty like compulsory retirement from service could only be

imposed on her and consequently such a punishment was decided

to be imposed.     Finally, the entire disciplinary proceedings got

terminated with the imposition of penalty of compulsory retirement.

28.   It was also submitted by the learned counsel appearing for the
                                      23
appellant     that   the   aforesaid        punishment   awarded   is

disproportionate to the charges levelled against her and that she

should at least directed to be paid her pension which could be paid

to her if she was allowed to work for another two years.      It was

submitted by the learned counsel for the appellant that the

appellant had completed 8 years of service and if she would have

worked

for

another

two years,

she would

have been

entitled to

pension

by

addition of another 10 years of service.

29.   We are, however, unable to accept the aforesaid contention for

the simple reason that we could probably interfere with the

quantum of punishment only when we find that the punishment

awarded is shocking to the conscience of the court. This is a case
                                    24
of judicial officer who was required to conduct herself with dignity

and manner becoming of a judicial officer.    A judicial officer must

be able to discharge his/her responsibilities by showing an

impeccable conduct. In the instant case, she not only travelled

without tickets in a railway compartment thrice but also complained

against the ticket collectors who accosted her, misbehaved with the

Railway

officials

and         in

those




circumstances we do not see how the punishment of compulsory

retirement awarded to her could be said to be disproportionate to

the offence alleged against her. In a country governed by rule of law,

nobody is above law, including judicial officers. In fact, as judicial

officers, they have to present a continuous aspect of dignity in every

conduct. If the rule of law is to function effectively and efficiently
                                    25
under the aegis of our democratic setup, Judges are expected to,

nay, they must nurture an efficient and enlightened judiciary by

presenting themselves as a role model. Needless to say, a Judge is

constantly under public glaze and society expects higher standards

of conduct and rectitude from a Judge. Judicial office, being an

office of public trust, the society is entitled to expect that a Judge

must be a

man       of

high

integrity,

honesty

and

ethical

firmness

by

maintaining the most exacting standards of propriety in every

action. Therefore, a judge's official and personal conduct must be in

tune with the highest standard of propriety and probity. Obviously,

this standard of conduct is higher than those deemed acceptable or

obvious for others. Indeed, in the instant case, being a judicial
                                    26
officer, it was in her best interest that she carries herself in a

decorous and dignified manner. If she has deliberately chosen to

depart from these high and exacting standards, she is appropriately

liable for disciplinary action.

30.    We fully agree with the conclusions arrived at by the

disciplinary authority.   We also find no reason to interfere with the

findings

arrived at

by       the

High

Court

giving

reason for

its

decision

with which we fully agree and find justification.

31.    We, therefore, find no merit in this appeal and the same is

dismissed but without any costs.

                                          ..........................................J
                                          [Dr. Mukundakam Sharma ]
                   27
                         ............................................J
                                  [ Anil R. Dave ]

New Delhi,
January 13, 2011.

COMPOUNDING A RAPE CASE BY APEX COURT - NOT SEEMS GOOD

    

 Admittedly the appellants have already undergone, 

about 3 and = years imprisonment each.  The incident is 

14   years   old.     The   appellants   and   the   prosecutrix   are 

married  (not to each other).  The prosecutrix  has also

                               

two   children.     An   application   and   affidavit   has   been 

filed before us stating that the parties want to finish 

the   dispute,   have   entered   into   a   compromise   on 

01.09.2007,   and   that   the   accused   may   be   acquitted   and 

now there is no misunderstanding between them.  

        Section   376   is   a   non   compoundable   offence, 

However, the fact that  the incident is an old one, is a 

circumstance for invoking the proviso to Section 376 (2) 

(g) and awarding a sentence less than 10 years, which is 

ordinarily the minimum sentence under that provision, as 

we think that there are adequate and special reasons for 

doing so.  

                                                           Reportable
                   IN THE SUPREME COURT OF INDIA
                CRIMINAL  APPELLATE JURISDICTION
  
                 CRIMINAL APPEAL NO. 749 OF 2007



BALDEV SINGH & ORS.                        ......Appellant (s)

                   Versus

STATE OF PUNJAB                           .....Respondent  (s)



                          O R D E R

         This   appeal   has   been   filed   against   the   impugned

judgment dated 27.0.2005 IN CRLA No. 242 of 1999 of the

High Court of Punjab & Haryana at Chandigarh.  

         The   facts   of   the   case   have   been   set   out   in   the

judgment   of   the   High   Court   and   hence   we   are   not

repeating the same here, except where necessary.

         The   prosecution   case   is   that   on   03.03.1997   at

about 6.30 A.M. the prosecutrix was coming to her house

after answering the call of nature. The three appellants

caught her and took her into a house and raped her and

beat   her.     After   police   investigation   the   appellants

were charge sheeted,   and after a trial were convicted

under   Section   376   (2)   (g)   and   Section   342     I.P.C.   and

sentenced   to   10   years   R.I.   and   to   pay   a   fine   of   Rs.

1,000/-   each.     The   sentence   was   upheld   by   the   High

Court, and hence this appeal.

         Admittedly the appellants have already undergone,

about 3 and = years imprisonment each.  The incident is

14   years   old.     The   appellants   and   the   prosecutrix   are


married  (not to each other).  The prosecutrix  has also

                                   -1-




                                   -2-




two   children.     An   application   and   affidavit   has   been

filed before us stating that the parties want to finish

the   dispute,   have   entered   into   a   compromise   on

01.09.2007,   and   that   the   accused   may   be   acquitted   and

now there is no misunderstanding between them.

        Section   376   is   a   non   compoundable   offence,

However, the fact that  the incident is an old one, is a

circumstance for invoking the proviso to Section 376 (2)

(g) and awarding a sentence less than 10 years, which is

ordinarily the minimum sentence under that provision, as

we think that there are adequate and special reasons for

doing so.

        On   the   facts   of   the   case,   considering   that   the

incident happened in the year 1997 and that the parties

have themselves entered into a compromise, we uphold the

conviction  of the  appellant but  we reduce  the sentence

to the period of sentence already undergone in view of

the   proviso   to   Section   376   (2)   (g)   which   for   adequate

and   special   reasons   permits   imposition   of   a   lesser

sentence.  However, we direct that each of the appellant

will pay a sum of Rupees 50,000/- by way of enhancement

of fine to the victim envisaged under Section 376 of the


IPC itself.  The fine shall be paid within three months

from today.  In the event of failure to pay the enhanced

amount of fine it will be recovered as arrears of land

revenue and will be given to the victim.





                            -3-




       The appeal is disposed off.      




                                   ...................J.
                                   [MARKANDEY KATJU]



                                   ...................J.
                                   [GYAN SHDHA MISRA]
NEW DELHI;
FEBRUARY 22, 2011

GOVERNOR POWER OF PARDON

                                                   REPORTABLE



               IN THE SUPREME COURT OF INDIA

                 CIVIL APPELLATE JURISDICTION





                 CIVIL APPEAL NO.2058 OF 2011

(Arising out of Special Leave Petition (C) No.11544/08





Narayan Dutt & others                         ...Appellant(s)



                            - Versus -



State of Punjab & another                    ...Respondent(s)



                                 With



                 Civil Appeal No.2059 of 2011



      [Arising out of SLP (C) No.5910/11 (CC No.3090/10)]





State of Punjab                              ...Appellant(s)



                            -    Versus -



Rajinder Pal Singh & others                  ...Respondent(s)





                        J U D G M E N T



GANGULY, J.





1.      Delay condoned.





2.      Leave   is   granted   in   both   the   special   leave



        petitions.   They   are   heard   together   as   common



        questions of facts and law are involved.


                                  1


3.    One   Kiranjit   Kaur,   daughter   of   a   handicapped



      school   master,   was   abducted   when   she   was



      returning   from   school   on   29.07.1997,   and   then



      gang-raped   and   murdered   by   Gurprit   Singh,



      Jagraj   Singh,   Desh   Raj   and   Partap   Singh.   The



      Hon'ble   Additional   Sessions   Judge,   Barnala,



      after holding the trial convicted and sentenced



      them   to   undergo   life   imprisonment.   In   the   area



      an   Action   Committee   was   formed   to   ensure   that



      accused   persons,   involved   in   the   gang-rape   and



      murder   of   that   girl,   were   brought   to   book.



      That committee consisted, inter-alia, of Manjit



      Singh,   Prem   Kumar   and   Narayan   Dutt,   accused   in



      the   present   case,   as   its   members.   Ultimately,



      the   accused   persons   in   the   case   of   gang-rape



      and   murder   of   Kiranjit   Kaur   were   punished,   as



      aforesaid.





4.    On   3.03.2001,   Beant   Singh   (father   of   Jagraj



      Singh),   Dalip   Singh   (grandfather   of   Jagraj



      Singh),   Gurnam   Singh   and   Rajinder   Pal   Singh




                                2


      (nephew   of   Dalip   Singh),   while   coming   out   of



      Court,   after   hearing   a   criminal   case,   were



      attacked   by   a   mob   consisting   of   7   persons,



      namely-   Sukhwinder   Singh,   Labh   Singh   and   Avtar



      Singh   (all   armed   with   kirpans),   Bakhtaur   Singh



      (armed with a ghop), Manjit Singh (armed with a



      kirch),   along   with   Prem   Kumar   and   Narayan   Dutt



      (both   without   any   weapon   in   their   hands).



      Apparently,   Bakhtaur   Singh   gave   a   blow   to   the



      head   of   Dalip   Singh,   who   was   being   allegedly



      held   by   Prem   Kumar   and   Narayan   Dutt,   which



      resulted in his death.







5.    Beant Singh lodged an FIR on the same day under



      Sections   307,   148,   149   and   120-B   of   IPC   and



      investigation   commenced   in   the   matter.   During



      the   course   of   investigation   Dalip   Singh   had



      passed away, and thus, the charge under Section



      302   IPC   was   added.   After   investigation,   the



      police, in its report under Section 173 Cr.P.C,



      found that Manjit Singh, Prem Kumar and Narayan




                                3


      Dutt   were   innocent.   Thus,   charge   sheet   was



      filed   by   the   police   only   against   the   remaining



      four   accused   under   Sections   302/34,   326,   325,



      324   and   323   IPC   and   the   case   was   committed   to



      the   Court   of   Sessions   for   trial.   At   the   stage



      of   trial,   Beant   Singh   moved   an   application   on



      11.9.2001 under Section 319 Cr.P.C.,   whereupon



      the   Sessions   Judge   by   an   order   dated   19.9.2001



      summoned   Manjit   Singh,   Prem   Kumar   and   Narayan



      Dutt.   The   Sessions   Judge   found   a   prima-facie



      case   against   them   and   framed   charges   against



      all   accused,   including   those   three,   under



      Sections 302, 148, 326, 325, 324 and 323 of IPC



      on 6.2.2002.





6.    However,         the         prosecution         then         filed         an



      application   dated   29.10.2002   under   section   321



      Cr.P.C.,   seeking   to   withdraw   the   case   against



      Manjit   Singh,   Prem   Kumar   and   Narayan   Dutt   and



      that   was   disallowed   by   the   Trial   Court   vide



      order dated 7.11.2002.




                                       4


7.    Aggrieved,   the   accused   filed   criminal   revision



      petitions   (No.   2248/2002   and   2413/2002),   which



      were   dismissed   by   the   High   Court   of   Punjab   and



      Haryana   vide   common   order   dated   14.10.2003.   A



      Special   leave   petition   filed   by   the   State   of



      Punjab   against   the   order   of   the   High   Court



      dated   14.10.2003   was   also   dismissed   by   this



      Court.





8.    Accordingly,   the   trial   commenced   against   all



      the 7 accused.





9.    The         Additional         Sessions         Judge,         Barnala,



      convicted all the accused by judgment and order



      dated   28.03.2005   and   convicted   them   under



      Sections   148   IPC   and   Sections   302,   302/149,



      323,   149,   324,   325   and   326   on   various   counts



      and   passed   an   order   of   life   sentence   on



      30.03.2005.





                                      5


10.    All   the   accused   appealed   before   the   High   Court



       of   Punjab   and   Haryana.   During   the   pendency   of



       the   appeals,   Narayan   Dutt,   Manjit   Singh   and



       Prem   Kumar   also   filed   petitions   under   Article



       161   of   the   Constitution   of   India   before   the



       Governor of Punjab.



11.    The   Governor   of   Punjab,   vide   order   dated



       24.07.2007,   in   exercise   of   his   powers   under



       Article   161,   granted   pardon   to   Narayan   Dutt,



       Prem   Kumar   and   Manjit   Singh   and   they   were



       directed to be released immediately.





12.    Challenging that order Rajinder Pal Singh filed



       a writ petition before the High Court of Punjab



       and Haryana.





13.    The   criminal   appeals   of   the   accused   and   the



       writ   petition   of   Rajinder   Pal   Singh   were   heard



       together   by   the   High   Court   of   Punjab   and



       Haryana.   The   High   Court   framed   two   questions



       for consideration:




                                 6


       a.    Whether   case   of   the   prosecution   is

       proved   against   all   the   appellants   by

       evidence on record?


       b.    Whether   the   order   of   pardon   is

       sustainable in law?





14.    Vide   the   impugned   common   judgment   dated



       11.03.2008,   the   High   Court   allowed   the   writ



       petition   and   set   aside   the   order   of   pardon   of



       the   Governor   of   Punjab.   It   gave   the   benefit   of



       doubt   to   Prem   Kumar   and   Narayan   Dutt,   and



       allowed   their   appeals   by   acquitting   them.



       However,   the   conviction   and   sentence   of



       Sukhwinder   Singh,   Labh   Singh,   Bakhtaur   Singh,



       Avtar   Singh   and   Manjit   Singh   was   upheld   by   the



       High   Court   and   it   was   of   the   opinion   that   the



       prosecution   had   successfully   established   the



       offences against them.





15.    Against   the   said   impugned   judgment   dated



       11.03.2008,   the   State   of   Punjab   filed   Special



       Leave   Petition   (CC   No.3090/2010)   before   this



       Court.   Accused   Narayan   Dutt,   Prem   Kumar   and



                                  7


       Manjit   Singh   also   filed   another   Special   Leave



       Petition   (No.11544/2008)   before   this   Court.



       Both   the   Special   Leave   Petitions   were   directed



       against the order of the High Court whereby the



       order   of   pardon   by   the   Governor   of   Punjab   was



       set aside.





16.    In   the   background   of   these   facts,   questions   of



       law arising before us are:



       a.    Whether the power under Article 161 is

       subject   to   judicial   review   and   if   yes,   to

       what extent?


       b.    Whether   the   Governor   had   rightly

       exercised   his   power   to   pardon   under

       Article 161?





17.    The order of the Governor dated 6.8.2007, which



       is   relevant   in   the   present   context,   reads   as



       follows:



       "I have considered the matter carefully.

       Ever   since   the   lodging   of   FIR,   there   has

       been   a   widespread   public   belief   that

       Sarvshri   Narain   Dutt,   Prem   Kumar   and

       Manjit   Singh   had   been   falsely   implicated

       in   the   murder   of   Dalip   Singh,   because   of

       their   role   as   leaders   of   the   Action

       Committee set up to secure justice for the



                                 8


       late Kiranjit Kaur's family. This has been

       corroborated  by the  investigation into  the

       case,   during   the   course   of   which,   the

       above   three   persons   were   found   to   be

       innocent.   The   Intelligence   Wing   has   also

       supported the innocence of these persons.



       It   is   also   noteworthy   that   out   of   the   7

       persons   accused   and   convicted   for   the

       murder   of   Dalip   Singh,   pardon   has   been

       sought   only   for   the   three   persons   that

       have   been   found   to   be   innocent.   This

       benefit   has   not   been   proposed   for   the

       other          4         accused.                    Further,                    the

       recommendation   for   pardon   had   initially

       been moved by the previous government, and

       has also been endorsed by the present one.

       Hence,  the recommendation  for pardon  seems

       to be objective and bona fide.



       The   courts   have   held   that   the   power   under

       Article   72   and   161   is   a   wide   power,

       conferred   inter   alia   with   the   purpose   of

       doing   justice   in   cases   even   where   the

       courts might have convicted a person.



       In view of the above, I exercise my powers

       under   Article   161   and   grant   "pardon"   to

       Sarvshri   Narain   Dutt,   Prem   Kumar   and

       Manjit         Singh          in         FIR         No.         56         dated

       03.03.2001 P.S- Kotwali Barnala."





18.    Article   161   of   the   Constitution   of   India



       confers on the Governor of a State the right to



       grant pardons, remissions, reprieves or commute



       the   sentence   of   any   person   convicted   of   any





                                                9


       offence against any law relating to a matter to



       which the executive power of the State extends.





19.    The nature and scope of the power of pardon and



       the   extent   of   judicial   review   over   such   power



       has   come   up   for   consideration   in   a   catena   of



       cases and has now virtually crystallised into a



       rule of law.





20.    In  Maru   Ram   &   Ors.  v.  Union   of   India   &   Ors.



       [AIR 1980 SC 2147] Krishna Iyer J, speaking for



       the   Constitution   Bench,   held   that   although   the



       power under Articles 72 and 161 were very wide,



       it   could   not   "run   riot".     His   Lordship   held



       that   no   legal   power   can   run   unruly   like   John



       Gilpin on the horse, but "must keep sensibly to



       a   steady   course".   According   to   His   Lordship,



       "all   public   power,   including   constitutional



       power,   shall   never   be   exercisable   arbitrarily



       or   mala   fide   and,   ordinarily,   guidelines   for





                                 10


       fair   and   equal   execution   are   guarantors   of   the



       valid play of power." (para 62 at p. 2170)





21.    The   Court   further   observed   that   "Article   14   is



       an   expression   of   the   egalitarian   spirit   of   the



       Constitution   and   is   a   clear   pointer   that



       arbitrariness   is   anathema   under   our   system.   It



       necessarily   follows   that   the   power   to   pardon,



       grant   of   remission   and   commutation,   being   of



       the   greatest   moment   for   the   liberty   of   the



       citizen,   cannot   be   a   law   unto   itself   but   must



       be         informed         by          the         finer            canons         of



       constitutionalism." The Constitution Bench also



       observed   "the   Government   is   not   and   should   not



       be   as   free   as   an   individual   in   selecting   the



       recipients   for   its   largesse.   Whatever   its



       activity,           the          Government               is         still          the



       Government   and   will   be   subject   to   restraints,



       inherent   in   its   position   in   a   democratic



       society.   A   democratic   Government   cannot   lay



       down arbitrary and capricious standards for the




                                              11


       choice of persons with whom alone it will deal...



       Every   action   of   the   Executive   Government   must



       be informed with reason and should be free from



       arbitrariness...   it   makes   no   difference   whether



       the   exercise   of   the   power   involves   affectation



       of some right or denial of some privilege... From



       this   angle,   even   the   power   to   pardon,   commute



       or remit is subject to the wholesome creed that



       guidelines   should   govern   the   exercise   even   of



       Presidential power." (para 63 at p. 2170-71)





22.    The   Bench   cautioned   that   political   vendetta   or



       party   favoritism   should   not   be   the   basis   of



       exercising such power. It also advised that the



       government   should   make   rules   for   its   own



       guidance in the exercise of the pardon power to



       exclude the vice of discrimination.





23.    In         conclusion,         the          Bench         observed         that



       considerations   for   exercise   of   power   under



       Articles   72/161   "may   be   myriad   and   their




                                        12


       occasions   protean,   and   are   left   to   the



       appropriate   Government,   but   no   consideration



       nor         occasion         can          be         wholly         irrelevant,



       irrational,   discriminatory   or   mala   fide.   Only



       in   these   rare   cases   will   the   court   examine   the



       exercise." (para 72 at p. 2175)





24.    In   the   subsequent   Constitution   Bench   decision



       in  Kehar Singh & Anr.  v.  Union of India & Anr.



       [AIR   1989   SC   653]   on   the   same   question,   this



       Court quoted the United States Supreme Court in



       Ex   Parte   Williams   Wells,   (1854-57)   15   Law   Ed



       421,   on   its   power   to   scrutinize   the     exercise



       of   this   power   and     pointed   out   that   it   was   to



       be used "particularly when the circumstances of



       any   case   disclosed   such   uncertainties   as   made



       it   doubtful   if   there   should   have   been   a



       conviction   of   the   criminal,   or   when   they   are



       such   as   to   show   that   there   might   be   a



       mitigation   of   the   punishment   without   lessening



       the   obligation   of   vindicatory   justice."   The




                                           13


       Bench   also   quoted   Chief   Justice   Taft   in  Ex



       parte   Philip   Grossman,   (1924)   267   US   87),



       wherein the learned Chief Justice opined:



       "Executive   clemency   exists   to   afford

       relief   from   undue   harshness   or   evident

       mistake         in         the          operation         or         the

       enforcement   of   the   criminal   law.   The

       administration of justice by the Courts is

       not   necessarily   always   wise   or   certainly

       considerate   of   circumstances   which   may

       properly   mitigate   guilt.   To   afford   a

       remedy,         it   has          always   been            thought

       essential   in   popular   governments,   as   well

       as   in   monarchies,   to   vest   in   some   other

       authority         than   the                 Courts   power          to

       ameliorate   or   avoid   particular   criminal

       judgments..." (para 8 at p. 658)





25.    The   Bench   having   regard   to   the   nature   of   the



       power of the President under Article 72, stated



       that   the   President   under   Article   72   could



       scrutinize the evidence on record of a criminal



       case   and   come   to   a   different   conclusion   from



       that   of   the   court.   In   doing   so,   "the   President



       does   not   amend   or   modify   or   supersede   the



       judicial   record.   The   judicial   record   remains



       intact,   and   undisturbed.   The   President   acts   in



       a wholly different plane from that in which the




                                              14


       Court   acted.   He   acts   under   a   constitutional



       power,   the   nature   of   which   is   entirely



       different from the judicial power and cannot be



       regarded   as   an   extension   of   it."   The   Bench



       quoted   with   approval   the   formulations   of



       Sutherland,   J.   in  U.S.  v.  Benz,   (1930)   75   Law



       Ed 354, wherein the learned Judge held:



       "The   judicial   power   and   the   executive

       power         over         sentences         are         readily

       distinguishable.   To   render   judgment   is   a

       judicial   function.   To   carry   the   judgment

       into   effect   is   an   executive   function.   To

       cut short a sentence by an act of clemency

       is   an   exercise   of   executive   power   which

       abridges   the   enforcement   of   the   judgment,

       but does not alter it qua a judgment."





26.    In  Kehar Singh  (supra) this Court observed that



       the   order   of   the   President   under   Article   72



       could   not   be   subjected   to   judicial   review   on



       merits   except   within   the   strict   limitations



       defined   in  Maru   Ram  (supra).   Therefore,   on   the



       ambit   of   judicial   review,  Kehar   Singh  (supra)



       concurred with Maru Ram (supra).





                                      15


27.    In  Swaran   Singh  v.  State   of   U.P.   &   Ors.  [AIR



       1998   SC   2026],   a   three-Judge   Bench   held   that



       "this   Court   has   no   power   to   touch   the   order



       passed by the Governor under Article 161 of the



       Constitution.   If   such   power   was   exercised



       arbitrarily, mala fide or in absolute disregard



       of   the   finer   canons   of   the   constitutionalism,



       the by-product order cannot get the approval of



       law   and   in   such   cases,   the   judicial   hand   must



       be stretched to it." (para 12 at p. 2028)





28.    Again   in  Satpal   &   Anr.  v.  State   of   Haryana   &



       Ors.  [AIR   2000   SC   1702],   this   Court   held   that



       the   power   of   granting   pardon   under   Article   161



       was   very   wide   and   did   not   contain   any



       limitation as to the time and occasion on which



       and   the   circumstances   under   which   it   was   to   be



       exercised.   Since   the   power   is   a   constitutional



       power, it is amenable to judicial review on the



       following grounds:





                                  16


         a. If   the   Governor   had   been   found   to   have



            exercised   the   power   himself   without   being



            advised by the government,





         b. If         the         Governor         transgressed         his



            jurisdiction in exercising the said power,





         c. If   the   Governor   had   passed   the   order



            without applying his mind,





         d. The order of the Governor was mala fide, or





         e. The   order   of   the   Governor   was   passed   on



            some extraneous considerations.





29.    Further,   if   the   Governor   was   not   aware   of



       general   considerations   such   as   period   of



       sentence   undergone   by   the   convict,   his   conduct



       and   behaviour   while   undergoing   sentence   and



       other   such   material   considerations,   it   would



       make   the   order   of   the   Governor   under   Article



       161 arbitrary and irrational.





                                       17


30.    The   Constitution   Bench   in  Bikas   Chatterjee  v.



       Union   of   India   &   Ors.     [(2004)   7   SCC   634]



       reiterated the same principles on the extent of



       judicial   review   as   laid   down   in       Maru   Ram



       (supra) and Satpal (supra).





31.    In  Epuru   Sudhakar   &   Anr.  v.  Government   of   A.P.



       &   Ors.  [AIR   2006   SC   3385]   this   Court   observed



       that   it   was   well   settled   that   the   exercise   or



       non-exercise   of   the   power   of   pardon   by   the



       President   or   Governor   was   not   immune   from



       judicial review and limited judicial review was



       available in certain cases.





32.    Justice   Pasayat,   delivering   the   judgment,



       summed   up   the   ground   on   which   judicial   review



       of   an   order   passed   under   Articles   72   and   161



       could be undertaken.  Those grounds are:



         (a)    that   the   order   has   been   passed   without

                application of mind;


            (b)    that the order is malafide;





                                 18


             (c)    that   the   order   has   been   passed   on

                    extraneous                          or           wholly              irrelevant

                    considerations;


             (d)    that   relevant   materials   have   been   kept

                    out of consideration;


             (e)    that               the                    order          suffers                  from

                    arbitrariness.





33.    Justice   Kapadia   (as   His   Lordship   then   was)   in



       his concurring opinion, observed that "granting



       of   pardon   is   in   no   sense   an   overturning   of   a



       judgment   of   conviction,   but   rather   it   is   an



       Executive   action   that   mitigates   or   set   aside



       the   punishment   for   a   crime.   It   eliminates   the



       effect   of   conviction   without   addressing   the



       defendant's guilt or innocence. The controlling



       factor   in   determining   whether   the   exercise   of



       prerogative power is subject to judicial review



       is   not   its   source   but   its   subject-matter."



       (para 64 at p. 3402)





34.    His   Lordship   further   added   that   "the   exercise



       of         power               depends                 upon          the         facts          and



       circumstances of each case and the necessity or



                                                        19


       justification for exercise of that power has to



       be   judged   from   case   to   case...   Rule   of   law



       should         be         the         overarching         constitutional



       justification   for   judicial   review."   (para   65,



       67 at p. 3402)





35.    In   that   case,   an   order   of   remission   had   been



       passed,   inter   alia,   on   an   inference   that   the



       accused   was   not   involved   in   the   murder,   was



       falsely implicated and false witnesses had been



       produced.   This   Court   held   such   reasons   to   be



       irrelevant and held that the order of remission



       was bad.





36.    From   the   abovementioned   judicial   decisions   it



       is   clear   that   there   is   limited   scope   of



       judicial review on the exercise of power by the



       Governor under Article 161.





37.    Keeping the aforesaid principles in our mind if



       we look at the order of the Governor it appears




                                              20


       that   there   has   been   consideration   of   various



       aspects   of   the   matter   by   the   Governor   in



       granting   pardon.   The   Governor's   order   also



       contains some reasons.





38.        The   Governor's   order   does   not   contain   any



       reference   to   the   order   of   conviction   and



       sentence imposed on the accused persons.  It is



       axiomatic that before the power of the Governor



       under   Article   161   of   the   Constitution   is



       invoked   by   any   person,   the   condition   precedent



       is   that   such   person   or   persons   must   be



       convicted   of   any   offence   against   any   law   and



       will   be   subjected   to   undergo   a   sentence.



       Therefore,   an   omission   of   any   reference   to   an



       order   of   conviction   or   sentence   in   the



       Governor's   order   in   respect   of   the   accused   is



       really of no consequence.





39.    However, in this case before the Governor could



       pass the aforesaid order of pardon, the accused




                                21


       persons   filed   appeals   against   the   order   of



       conviction   and   sentence   and   the   same   were



       pending   before   the   Hon'ble   High   Court.   This   is



       a   relevant   fact   for   the   Governor   to   take   into



       consideration   before   granting   his   power   of



       pardon.   But,   in   the   instant   order   of   the



       Governor   there   is   no   reference   to   this   fact.



       This   court,   therefore,   is   inclined   to   infer



       that   all   relevant   facts   were   possibly   not



       placed before the Governor.





40.    Apart   from   this,   there   is   another   vital   aspect



       in   the   order   of   the   Governor   which   requires



       serious   consideration,   in   as   much   as,   in   the



       order         of      the         Governor,      there         are      some



       observations   about   the   guilt   or   innocence   of



       the accused persons who prayed for pardon under



       Article 161 of the Constitution.





41.    It   is   well   settled   that   to   decide   on   the



       innocence   or   otherwise   of   an   accused   person   in




                                           22


a criminal trial is within the exclusive domain



of a Court of competent jurisdiction as this is



essentially   a   judicial   function.   A   Governor's



power   of   granting   pardon   under   Article   161



being   an   exercise   of   executive   function,   is



independent   of   the   Court's   power   to   pronounce



on   the  innocence   or  guilt   of  the   accused.    The



powers   of   a   Court   of   law   in   a   criminal   trial



and subsequent appeal right upto this Court and



that   of   the   President/Governor   under   Article



72/161   operate   in   totally   different   arenas   and



the nature of these two powers are also totally



different   from   each   other.     One   should   not



trench   upon   the   other.     The   instant   order   of



the Governor, by pronouncing upon the innocence



of the accused, has therefore, if we may say so



with         respect,         exceeded         the         permissible



constitutional   limits   under   Article   161   of   the



Constitution.





                                23


42.    For   these   reasons,   we   are   constrained   to   hold



       that   we   cannot   approve   the   order   of   the



       Governor. We therefore, set aside the order and



       remand   it   to   the   Hon'ble   Governor   for   re-



       consideration   of   the   matter   in   accordance   with



       law.





43.    It may be mentioned in this connection, that of



       those   three   accused   persons,   two   persons



       namely,   Prem   Kumar   and   Narayan   Dutt,   had   been



       acquitted   by   the   High   Court   by   judgment   and



       order   dated   11.3.2008   in   connection   with   the



       criminal appeals filed by them.





44.    The   appeals   are   thus   disposed   of.   No   orders   as



       to costs.





                                  .......................J.

                                  (G.S. SINGHVI)





                                  .......................J.


                                  24


New Delhi            (ASOK KUMAR GANGULY)

February 24, 2011





                     25

material alteration = suit to be dismissed.

                                     1

                                       NON-REPORTABLE

              IN THE SUPREME COURT OF INDIA

               CIVIL APPELLATE JURISDICTION

             CIVIL APPEAL NO.  2057  OF 2011
       (Arising out of SLP(C) No.30951 of 2008)


lTATIPAMULA NAGA RAJU                     .....APPELLANT.



VERSUS

PATTEM





PADMAVATHI                 .....RESPONDENT.



l              J U D G M E N T

lANIL R. DAVE, J
                      .


1.    Leave granted.

2.    Being   aggrieved   by   the   dismissal   of   Second   Appeal


                                    2

No.587 of 2008 by the High Court of Andhra Pradesh, the

defendant (appellant herein)  has filed this appeal.

3.      For   the   sake   of   convenience,   parties   to   the

litigation have been described as arrayed   in the trial

court.




4.      The suit had been filed by the plaintiff (respondent

herein)

for

recovery

of





Rs.1,90,000/-   from   the   defendant,   who   is   the   appellant

herein,   with   interest   and   the   claim   was   based   on   a

promissory note, which was alleged to have been executed

by the defendant for Rs.1,25,000/-.




5.      The   trial   court   dismissed   the   suit   in   the

circumstances stated hereinbelow:


                                    3




6.    The   case   of   the   plaintiff   was   that   a   sum   of

Rs.1,25,000/- had been borrowed by the defendant and the

defendant had, therefore, executed a Promissory note for

Rs.1,25,000/-   on   18th  September,   2001.     In   spite   of

demand,  as the amount was not repaid, the plaintiff was

constraint   to   file   Original   Suit   No.933   of     2003   for

recovery

of   the

said

amount

along

with

interest

thereon.




7.    The   case   of   the   defendant   was   that   though   the

Promissory note had been executed by him, no amount was

payable by the defendant to the plaintiff.  According to

the   defendant,   he   had   borrowed   Rs.1,25,000/-   from   the

son   of   the   plaintiff,     namely   Pattem   Nanaji   Sanker   @

Nanaji.     According   to   the   defendant,   four   Promissory


                                     4

notes had been executed by him.  One Promissory note was

for Rs.50,000/- and three Promissory notes were for Rs.

25,000/-   each.       The   defendant   was   having   financial

difficulties and, therefore, he could not pay the said

amount to Nanaji but with the help of certain mediators,

he had settled the dues with  Nanaji for Rs.90,000/- and

paid the same to him.




8.     Upon

payment

of





Rs.90,000/- by the defendant in full settlement of his

dues, Nanaji ought to have returned the aforestated four

Promissory notes to the defendant but he returned only

three Promissory notes and did not return one Promissory

note for Rs.25,000/-, as he had misplaced the same and

he   promised   that   he   would   return   the     said   promissory

note for Rs. 25,000/- as and when he would find it.


                                    5




9.    According  to  the  defendant,  the  plaintiff  had  used

the said fourth Promissory note of Rs.25,000/- which had

been given by the defendant to Nanaji.  According to the

defendant,   by   adding   a   figure   `1'   before   `Rs.25,000/-'

the plaintiff had made an amount of Rs.1,25,000/- from

Rs.25,000/-. The plaintiff had taken undue advantage by





interpolating   figure   `1'     before   `25,000/-'   because

Rs.25,000/- had not been written in words.




10. Thus,   according   to   the   case   of   the   defendant,   no

amount   was   payable   by   him   to   the   plaintiff   but   the

plaintiff had misused the Promissory note given by him

to   Nanaji   by   interpolating   figure   `1'   before   figure


                                      6

`25,000'.




11. At the time of trial, hand-writing expert, DW-4 had

been   examined,   who   stated   that   figure   `1'   had   been

interpolated   in   the   Promissory   note   whereby     figure

`25,000/-'   was made `1,25,000/-'.




12. The

hand-

writing

expert

was   of

the   said

opinion

for   the

reason

that he could show that space between figure `1' and `2'

was not regular and the entire figure of Rs.1,25,000/-

was not written in one line.     Figure `1',   which was

added   subsequently     was   not   in   the   same   line   of     Rs.

25,000/-.     His report was accepted by the trial court

and   after   considering   the   evidence,     more   particularly


                                    7

the evidence of the hand-writing expert, the trial court

came to the conclusion that the Promissory note,   which

had been executed for Rs.25,000/- was tampered with by

the   plaintiff   by   adding   figure   `1'   so   as   to   make

Rs.1,25,000/-.




13.  The trial court also discussed the evidence led by

the





mediators   i.e.   DW-2   and   DW-3,   in   whose   presence   the

defendant had settled his dues with Nanaji, the son of

the plaintiff.  The suit was, therefore, dismissed.

14. Being   aggrieved   by   the   dismissal   of   the   suit,   the

plaintiff had filed an appeal,  being Appeal Suit No.346

of 2006 which had been allowed by the learned Additional

District   and   Sessions   Judge   (Fast   Track   Court)


                                     8

Vijayawada.     The   appeal   was   allowed   because   the   lower

appellate court put more stress on the execution of the

Promissory   note   which   had   been   admitted   by   the

defendant.   Moreover, the lower appellate court was of

the   view   that   if   the   dues   had   been   settled,   the

defendant would not have permitted Nanaji to retain one

Promissory note   for Rs.25,000/-   In the circumstances,

the

appeal

was

allowed

and   the

suit   was

decreed

with

costs

for Rs.1,90,000/- with  interest thereon.




15. Being aggrieved by the order passed in the appeal,

the defendant filed Second Appeal No. 587 of 2008 in the

High   Court   of   Andhra   Pradesh   and   the   said   appeal   was

dismissed   by   the   High   Court   because   no   substantial


                                    9

question of law was  involved in the appeal.




16. We   have   heard   the   learned   counsel   and   have

considered the judgments of all the three courts.




17. After   careful     consideration,     we   are   of   the   view

that   the   trial   court   had   properly   appreciated   the





evidence,     especially   the   evidence   of   the   hand-writing

expert   -   DW-4.     Upon   perusal   of   the   discussion   of

evidence   in   the   judgment,   it   is   clear   that   in   the

opinion   of   the   expert,   figure   `1'   had   been   written

subsequently   before   `25,000/-'   in   the   Promissory   note.

The trial court rightly appreciated the evidence of the

mediators, in   whose presence the dues of the defendant


                                     10

had   been   settled   and   Nanaji,   son   of   the   plaintiff   was

paid   Rs.90,000/-   in   full   settlement   of   Rs.1,25,000/-

borrowed by the defendant from Nanaji. The defendant had

admitted the earlier transactions which he had with the

son of the plaintiff.   In our opinion, the evidence of

the   mediators   and   hand-writing   expert   was   duly

considered   and   appreciated   by   the   trial   court   and   the

trial

court

had   come

to         a

right





conclusion.     There   was   absolutely   no   reason   for   the

lower   appellate   court   to   arrive   at   a   different

conclusion than the one arrived at by the trial court.

We   are,   therefore,   of   the   opinion   that   the   findings

arrived at by the trial court are absolutely correct and

no   justifiable   reasons   have   been   given   by   the   lower

appellate court for arriving at a different conclusion.


                                     11




18. In   our   opinion,     simply   because   the   defendant   had

fairly admitted his signature, the court should not have

come   to   the   conclusion   that   the   amount   was   payable   by

the   defendant   especially   when   there   was   an   expert's

evidence   that   figure   `1'   was   added   so   as   to   make   the

figure   1,25,000/-   from   figure   25,000/-   and   when   the





mediators   had   deposed   to   the       effect   that   there   were

transactions between  the  defendant and the  son of the

plaintiff   and   in   pursuance   of   the   said   transaction,

Promissory notes were executed by the defendant and one

of   the   Promissory   notes   was   not   returned   to   the

defendant.     The   explanation   given   by   the   defendant,

which   was   supported   by   ample   evidence,   ought   to   have


                                     12

considered   by   the   lower   appellate   court   and   the   lower

appellate   court   should   not   have   been   guided   by   a   mere

fact   that   the   defendant   had   admitted   execution   of   the

Promissory   note.     In   our   opinion,   in   such   a   set   of

circumstances,   the   defendant   ought   not   to   have   been

saddled with a liability to pay the amount in pursuance

of   the   tampered   Promissory   note   for   which   no





consideration had ever passed from the plaintiff to the

defendant.




19. As   the   High   Court   did   not   find   any   substantial

question   of   law,     it   did   not   entertain   the   second

appeal.


                                     13

20. For   the   aforestated   reasons,   we   are   in   agreement

with the conclusion arrived at by the trial court and,

therefore,   we   set   aside   the   order   passed   by   the   High

Court as well as the order passed by the lower appellate

court   and   restore   the   order   passed   by   the   trial   court

whereby the suit had been dismissed.




21. The

appeal

is

allowed





accordingly but without any order as to costs.    




                                     ........................................J.
                                   (Dr. MUKUNDAKAM SHARMA)





                                     .............................J.
                                     (ANIL R. DAVE)
New Delhi
February  24,  2011


14