do not justify benefit of probation to the appellant for good conduct or for any reduction of sentence.=On the South-North Road at the East side of Carter Road, Bandra (West), Mumbai in the early hours of November 12, 2006 between 3.45 - 4.00 a.m., a car ran into the pavement killing seven persons and causing injuries to eight persons. The appellant - Alister

REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NOS. 1318-1320 OF 2007 Alister Anthony Pareira ...Appellant Versus State of Maharashtra ...Respondent JUDGEMENT R.M. LODHA, J. On the South-North Road at the East side of Carter Road, Bandra (West), Mumbai in the early hours of November 12, 2006 between 3.45 - 4.00 a.m., a car ran into the pavement killing seven persons and causing injuries to eight persons. The appellant - Alister Anthony Pareira - was at the wheels. He has been convicted by the High Court for the offences punishable under Sections 304 Part II, 338 and 337 of the Indian Penal Code, 1860 (IPC). 2. The prosecution case against the appellant is this: the repair and construction work of the Carter Road, Bandra (West) at the relevant time was being carried out by New India Construction Company. The labourers were engaged by the construction company for executing the works. The temporary sheds (huts) were put up for the residence of labourers on the pavement. In the night of November 11, 2006 and November 12, 2006, the labourers were asleep in front of their huts on the pavement. Between 3.45 to 4.00 a.m., that night, the appellant while driving the car (corolla) bearing Registration No. MH-01-R-580 rashly and negligently with knowledge that people were asleep on footpath rammed the car over the pavement; caused death of seven persons and injuries to eight persons. At the time 2 of incident, the appellant was found to have consumed alcohol. A liquor bottle was recovered from the appellant's car. On his medical examination, he was found to have 0.112% w/v liquor (ethyl alcohol) in his blood. The appellant was fully familiar with the area being the resident of Carter Road. 3. The contractor--Panchanadan Paramalai Harijan (PW-2) - who had engaged the labourers and witnessed the incident reported the matter immediately to the Khar Police Station. His statement (Ex. 13) was recorded and based on that a first information report (No. 838) was registered under Section 304, 279, 336, 337, 338 and 427 IPC; Section 185 of the Motor Vehicles Act, 1988 and Section 66 (1)(b) of Bombay Prohibition Act, 1949. 4. On completion of investigation, the charge sheet was submitted against the appellant by the Investigating Officer in the court of Magistrate having jurisdiction. The appellant was committed to the Court 3 of Sessions and was tried by 2nd Adhoc Additional Sessions Judge, Sewree, Mumbai. 5. The indictment of the appellant was on two charges. The two charges read:- "(i) that on November 12, 2006 between 3.45 to 4.00 a.m. you have driven the car bearing No. MH-01-R-580 rashly and negligently with knowledge that people are sleeping on footpath and likely to cause death of those persons slept over footpath and thereby caused the death of seven persons who were sleeping on footpath on Carter Road and thereby committed an offence punishable under Section 304 Part II IPC. (ii) on above date, time and place you have driven the vehicle in rashly and negligent manner and thereby caused grievous injury to seven persons who were sleeping on footpath and thereby committed an offence punishable under Section 338 IPC." 6. The prosecution, to prove the above charges against the appellant, tendered oral as well as documentary evidence. In all, 18 witnesses, namely, Dr. Nitin Vishnu Barve (PW-1), Panchanadan Paramalai 4 Harijan (PW-2), Ramchandra Chakrawarti (PW-3), Pindi Ramu (PW-4), Sriniwas Raman Pindi (PW-5), Smt. Mariamma Shingamana (PW-6), Smt. Prema Chingaram (PW-7), Jagan Singaram (PW-8), Sigamani Shankar Pani (PW-9), Mallikarjun Bajappa Motermallappa (PW-10), J.C. Cell Mendosa (PW-11), Praveen Sajjan Mohite (PW- 12), Limbaji Samadhan Ingle (PW-13), Dr. Sharad Maniklal Ruia (PW-14), Rajendra Nilkanth Sawant (PW- 15), Basraj Sanjeev Mehetri (PW-16), Meenakshi Anant Gondapatil (PW-17) and Somnath Baburam Phulsunder (PW-18) were examined. The complaint, spot panchnama along with sketch map, C.A. Reports and other documents were also proved. 7. The statement of the appellant under Section 313 of the Criminal Procedure Code, 1973 (for short, `the Code') was recorded. He admitted that he was driving the car no. MH-01-R-580 at the relevant time and the accident did occur but his explanation was that it happened on account of failure of engine and 5 mechanical defect in the car and there was no negligence or rashness on his part. 8. The 2nd Adhoc Additional Sessions Judge, Sewree, Mumbai, on April 13, 2007 convicted the appellant for the offences punishable under Sections 304A and 337 IPC. The court sentenced him to suffer simple imprisonment of six months with fine of Rs. 5 lakhs for the offence under Section 304A IPC and in default further suffer simple imprisonment of one month and simple imprisonment of 15 days for the offence under Section 337 IPC. Both the sentences were ordered to run concurrently. 9. On April 19, 2007, the Bombay High Court took suo motu cognizance of the judgment and order dated April 13, 2007 passed by the 2nd Adhoc Additional Sessions Judge, Sewree and issued notice to the State of Maharashtra, the appellant and to the heirs of the deceased and also to the injured persons. 6 10. The State of Maharashtra preferred criminal appeal (No. 566 of 2007) under Section 378(3) of the Code challenging the acquittal of the appellant under Sections 304 Part II and 338 IPC. Another criminal appeal (No. 430 of 2007) was also preferred by the State of Maharashtra seeking enhancement of sentence awarded to the appellant for the offence under Section 304A and Section 337 IPC by the trial court. 11. The appellant also preferred criminal appeal (No. 475/2007) for setting aside the judgment and order dated April 13, 2007 passed by the trial court convicting him under Section 304A and Section 337 IPC and the sentence awarded to him by the trial court. 12. All these matters were heard together by the High Court and have been disposed of by the common judgment on September 6, 2007. The High Court set aside the acquittal of the appellant under Section 304 IPC and convicted him for the offences under Section 304 Part II, Section 338 and Section 337 IPC. The High 7 Court sentenced the appellant to undergo rigorous imprisonment for three years for the offence punishable under Section 304 Part II IPC with a fine of Rs. 5 lakhs. On account of offence under Section 338 IPC, the appellant was sentenced to undergo rigorous imprisonment for a term of one year and for the offence under Section 337 IPC rigorous imprisonment for six months. The High Court noted that fine amount as per the order of the trial court had already been distributed to the families of victims. 13. It is from the above judgment of the High Court that the present appeals have been preferred by the appellant. 14. A great deal of argument in the hearing of the appeals turned on the indictment of the appellant on the two charges, namely, the offence punishable under Section 304 Part II IPC and the offence punishable under Section 338 IPC and his conviction for the above offences and also under Section 337 IPC. Mr. U.U. Lalit, learned 8 senior counsel for the appellant argued that this was legally impermissible as the charges under Section 304 Part II IPC and Section 338 IPC were mutually destructive and the two charges under these Sections cannot co-exist. His submission was that the appellant was charged for the above offences for committing a single act i.e., rash or negligent for causing injuries to eight persons and at the same time committed with knowledge resulting in death of seven persons which is irreconcilable and moreover that has caused grave prejudice to the appellant resulting in failure of justice. 15. Mr. U.U. Lalit, learned senior counsel also argued that no question was put to the appellant in his statement under Section 313 of the Code about his drunken condition or that he was under the influence of alcohol and, thus, had knowledge that his act was likely to result in causing death. CA Report (Ex. 49) that blood and urine of the appellant had alcohol content and the evidence of PW-1 that he found the appellant in drunken 9 condition and his blood sample was taken were also not put to the appellant. These incriminating evidences, learned senior counsel submitted, cannot form basis of conviction. The conclusion arrived at by the Investigating Officers (PW-17 and PW-18) regarding drunken condition of the appellant which was put to the appellant in his statement under Section 313 of the Code was of no legal use. Moreover, PW-17 and PW-18 have not deposed before the court that the appellant was found in drunken condition much less under the influence of liquor. Learned senior counsel would thus submit that the sole basis of the appellant's conviction under Section 304 Part-II IPC that the appellant had knowledge that his reckless and negligent driving in a drunken condition could result in serious consequences of causing a fatal accident cannot be held to have been established. In this regard, learned senior counsel relied upon two decisions of this Court, namely, (i) Ghulam Din Buch & Ors. v. State of J & K1 and (ii) Kuldip Singh & Ors. v. State of Delhi2. 1 1996 (9) SCC 239 2 2003 (12) SCC 528 10 16. Mr. U.U. Lalit vehemently contended that no charge was framed that the appellant had consumed alcohol. Moreover, he submited that no reliance could be placed on C.A. Report (Ex. 49) as the evidence does not satisfactorily establish that the samples were kept in safe custody until they reached the CFSL. Moreover, no charge was framed by the court against the appellant under Section 185 of the Motor Vehicles Act, 1988 and Section 66(1)(b) of the Bombay Prohibition Act, 1949. 17. Learned senior counsel argued that appellant's conviction under Section 304A, 338 and 337 IPC was not legally sustainable for more than one reason. First, no charge under Section 304A IPC was framed against the appellant as he was charged only under Section 304 Part II IPC and Section 338 IPC which are not the offences of the same category. In the absence of charge under Section 304A IPC, the appellant cannot be convicted for the said offence being not a minor offence of Section 304 Part II IPC. The charge under Section 338 11 IPC does not help the prosecution as by virtue of that charge the appellant cannot be convicted under Section 304A IPC being graver offence than Section 338 IPC. Secondly, the accident had occurred not on account of rash or negligent act of the appellant but on account of failure of the engine. He referred to the evidence of Rajendra Nilkanth Sawant (PW-15) who deposed that he could not state if the accident took place due to dislodging of right side wheel and dislodging of the engine from the foundation. In the absence of any firm opinion by an expert as regards the cause of accident, the possibility of the accident having occurred on account of mechanical failure cannot be ruled out. Thirdly, in the absence of medical certificate that the persons injured received grievous injuries, charge under Section 338 IPC was not established. 18. Learned senior counsel lastly submitted that in case the charges against appellant are held to be proved, having regard to the facts, namely, the age of the 12 appellant at the time of the accident; the appellant being the only member to support his family - mother and unmarried sister - having lost his father during the pendency of the present appeals; the fine and compensation of Rs. 8.5 lakhs having been paid and the sentence of two months already undergone, the appellant may be released on probation of good conduct and behavior or, in the alternative, the sentence may be reduced to the period already undergone by the appellant. 19. On the other hand, Mr. Sanjay Kharde, learned counsel for the State of Maharashtra stoutly defended the judgment of the High Court. He argued that the fact that labourers were asleep on the footpath has gone unchallenged by the defence. He would submit that the drunken condition of the appellant is fully proved by the evidence of PW-1. Further, PW-1 has not at all been cross-examined on this aspect. The recovery of liquor bottle is proved by the evidence of spot panchas 13 (PW-11 and PW-16). They have not been cross examined in this regard. PW-17 collected blood sample of the appellant from PW-1 and then PW-18 forwarded the blood sample to the chemical analyzer along with the forwarding letter. The appellant has not challenged C.A. Report (Ex. 49) in the cross-examination of PW-18. 20. Learned counsel for the State submitted that the involvement of the appellant in the incident has been fully established by the evidence of PW-13 who was an eye-witness and working as a watchman at construction site. Moreover, the appellant was apprehended immediately after the incident. There is no denial by the appellant about occurrence of the accident. The defence of the appellant was that the accident happened due to engine and mechanical failure but the appellant has failed to probablise his defence. He referred to the evidence of PW-15 - motor vehicle inspector - to show that the brake and the gear of the car were operative. 14 21. Learned counsel for the State referred to the evidence of injured witnesses and also the evidence of PW-12 and PW-14 who issued medical certificates and submitted that the prosecution has established beyond reasonable doubt that the knowledge was attributable to the accused as he was driving the car in a drunken condition at a high speed. The accused had the knowledge, as he was resident of the same area, that the labourers sleep at the place of occurrence. Learned counsel submitted that the evidence on record and the attendant circumstances justify attributability of actual knowledge to the appellant and the High Court rightly held so. In this regard, the learned counsel for the State placed reliance upon two decisions of this Court in Jai Prakash v. State (Delhi Administration)3 and Joti Parshad v. State of Haryana4. He disputed that there was any error in the framing of charge. He would contend that in any case an error or omission in framing of charge or irregularity in the charge does not invalidate the 3 1991 (2) SCC 32 4 1993 Supp (2) SCC 497 15 conviction of an accused. The omission about the drunken condition of the accused in the charge at best can be said to be an irregularity but that does not affect the conviction. In this regard, he relied upon Section 464 of the Code and the decisions of this Court in Willie (William) Slaney v. State of Madhya Pradesh5, Dalbir Singh v. State of U.P.6 and Annareddy Sambasiva Reddy and others v. State of Andhra Pradesh7. 22. Mr. Sanjay Kharde submitted that by not putting C.A. Report (Ex. 49) to the appellant in his statement under Section 313 of the Code, no prejudice has been caused to him as he admitted in his statement under Section 313 of the Code that he was fully aware about the statement of the witnesses and exhibits on record. In this regard, learned counsel relied upon decision of this Court in Shivaji Sahabrao Bobade and another v. State of Maharashtra8 . 5 AIR 1956 SC 116 6 2004 (5) SCC 334 7 2009 (12) SCC 546 8 1973 (2) SCC 793 16 23. Lastly, learned counsel for the State submitted that the circumstances pointed out by the learned senior counsel for the appellant do not justify the benefit of probation to the appellant or reduction of the sentence to the period already undergone. He submitted that seven innocent persons lost their lives and eight persons got injured due to the act of the appellant and, therefore, no sympathy was called for. He submitted that sentence should be proportionate to the gravity of offence. He relied upon the decisions of this Court in State of Karnataka v. Krishnappa9, Dalbir Singh v. State of Haryana10, Shailesh Jasvantbhai and another v. State of Gujarat and others11 and Manish Jalan v. State of Karnataka12. 24. On the contentions of the learned senior counsel for the appellant and the counsel for the respondent, the following questions arise for our consideration : 9 2000 (4) SCC 75 10 2000 (5) SCC 82 11 2006 (2) SCC 359 12 2008 (8) SCC 225 17 (i) Whether indictment on the two charges, namely, the offence punishable under Section 304 Part II IPC and the offence punishable under Section 338 IPC is mutually destructive and legally impermissible? In other words, whether it is permissible to try and convict a person for the offence punishable under Section 304 Part II IPC and the offence punishable under Section 338 IPC for a single act of the same transaction? (ii) Whether by not charging the appellant of `drunken condition' and not putting to him the entire incriminating evidence let in by the prosecution, particularly the evidence relating to appellant's drunken condition, at the time of his examination under Section 313 of the Code, the trial and conviction of the appellant got affected? (iii) Whether prosecution evidence establishes beyond reasonable doubt the commission of the offences by the appellant under Section 304 Part II, IPC, Section 338 IPC and Section 337 IPC? (iv) Whether sentence awarded to the appellant by the High Court for the offence punishable under Section 304 Part II IPC requires any modification? re: question (i) 18 25. Section 304 IPC provides for punishment for culpable homicide not amounting to murder. It reads as under: "S.304. - Punishment for culpable homicide not amounting to murder - Whoever commits culpable homicide not amounting to murder shall be punished with imprisonment for life or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, if the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death, or with imprisonment of either description for a term which may extend to ten years, or with fine, or with both, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death". 26. The above Section is in two parts. Although Section does not specify Part I and Part II but for the sake of convenience, the investigators, the prosecutors, the lawyers, the judges and the authors refer to the first paragraph of the Section as Part I while the second paragraph is referred to as Part II. The constituent elements of Part I and Part II are different and, consequently, the difference in punishment. For punishment under Section 304 Part I, the prosecution 19 must prove: the death of the person in question; that such death was caused by the act of the accused and that the accused intended by such act to cause death or cause such bodily injury as was likely to cause death. As regards punishment for Section 304 Part II, the prosecution has to prove the death of the person in question; that such death was caused by the act of the accused and that he knew that such act of his was likely to cause death. In order to find out that an offence is `culpable homicide not amounting to murder' - since Section 304 does not define this expression - Sections 299 and 300 IPC have to be seen. Section 299 IPC reads as under: "S.-299. - Culpable homicide.--Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide." 27. To constitute the offence of culpable homicide as defined in Section 299 the death must be caused by doing an act: (a) with the intention of causing death, or 20 (b) with the intention of causing such bodily injury as is likely to cause death, or (c) with the knowledge that the doer is likely by such act to cause death. 28. Section 300 deals with murder and also provides for exceptions. The culpable homicide is murder if the act by which the death is caused is done: (1) with the intention of causing death, (2) with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or (3) with the intention of causing such bodily injury as is sufficient in the ordinary course of nature to cause death, or (4) with the knowledge that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid. The exceptions provide that the culpable homicide will not be murder if that act is done with the intention or knowledge in the circumstances and subject 21 to the conditions specified therein. In other words, the culpable homicide is not murder if the act by which death is caused is done in extenuating circumstances and such act is covered by one of the five exceptions set out in the later part of Section 300. 29. It is not necessary in the present matter to analyse Section 299 and Section 300 in detail. Suffice it to say that the last clause of Section 299 and clause `fourthly' of Section 300 are based on the knowledge of the likely or probable consequences of the act and do not connote any intention at all. 30. Reference to few other provisions of IPC in this regard is also necessary. Section 279 makes rash driving or riding on a public way so as to endanger human life or to be likely to cause hurt or injury to any other person an offence and provides for punishment which may extend to six months, or with fine which may extend to Rs. 1000/-, or with both. 22 31. Causing death by negligence is an offence under Section 304A. It reads : "S.304A. - Causing death by negligence.-- Whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both." 32. Section 336 IPC says that whoever does any act so rashly or negligently as to endanger human life or the personal safety of others, shall be punished with imprisonment of either description for a term which may extend to three months, or with fine which may extend to Rs. 250/-, or with both. 33. Section 337 IPC reads as follows : "S. 337. - Causing hurt by act endangering life or personal safety of others.--Whoever causes hurt to any person by doing any act so rashly or negligently as to endanger human life, or the personal safety of others, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to five hundred rupees, or with both." 34. Section 338 IPC is as under : 23 "S. 338. - Causing grievous hurt by act endangering life or personal safety of others. --Whoever causes grievous hurt to any person by doing any act so rashly or negligently as to endanger human life, or the personal safety of others, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine which may extend to one thousand rupees, or with both." 35. In Empress of India v. Idu Beg13, Straight J., explained the meaning of criminal rashness and criminal negligence in the following words: criminal rashness is hazarding a dangerous or wanton act with the knowledge that it is so, and that it may cause injury but without intention to cause injury, or knowledge that it will probably be caused. The criminality lies in running the risk of doing such an act with recklessness or indifference as to the consequences. Criminal negligence is the gross and culpable neglect or failure to exercise that reasonable and proper care and precaution to guard against injury either to the public generally or to an individual in particular, which, having regard to all the circumstances out of which the charge has arisen, it was 13 1881 (3) All 776 24 the imperative duty of the accused person to have adopted. 36. The above meaning of criminal rashness and criminal negligence given by Straight J. has been adopted consistently by this Court. 37. Insofar as Section 304A IPC is concerned, it deals with death caused by doing any rash or negligent act where such death is caused neither intentionally nor with the knowledge that the act of the offender is likely to cause death. The applicability of Section 304A IPC is limited to rash or negligent acts which cause death but fall short of culpable homicide amounting to murder or culpable homicide not amounting to murder. An essential element to attract Section 304A IPC is death caused due to rash or negligent act. The three things which are required to be proved for an offence under Section 304A are : (1) death of human being; (2) the accused caused the death and (3) the death was caused 25 by the doing of a rash or negligent act, though it did not amount to culpable homicide of either description. 38. Like Section 304A, Sections 279, 336, 337 and 338 IPC are attracted for only the negligent or rash act. 39. The scheme of Sections 279, 304A, 336, 337 and 338 leaves no manner of doubt that these offences are punished because of the inherent danger of the acts specified therein irrespective of knowledge or intention to produce the result and irrespective of the result. These sections make punishable the acts themselves which are likely to cause death or injury to human life. The question is whether indictment of an accused under Section 304 Part II and Section 338 IPC can co-exist in a case of single rash or negligent act. We think it can. We do not think that two charges are mutually destructive. If the act is done with the knowledge of the dangerous consequences which are likely to follow and if death is caused then not only that the punishment is for the act 26 but also for the resulting homicide and a case may fall within Section 299 or Section 300 depending upon the mental state of the accused viz., as to whether the act was done with one kind of knowledge or the other or the intention. Knowledge is awareness on the part of the person concerned of the consequences of his act of omission or commission indicating his state of mind. There may be knowledge of likely consequences without any intention. Criminal culpability is determined by referring to what a person with reasonable prudence would have known. 40. Rash or negligent driving on a public road with the knowledge of the dangerous character and the likely effect of the act and resulting in death may fall in the category of culpable homicide not amounting to murder. A person, doing an act of rash or negligent driving, if aware of a risk that a particular consequence is likely to result and that result occurs, may be held guilty not only of the act but also of the result. As a matter of 27 law - in view of the provisions of the IPC - the cases which fall within last clause of Section 299 but not within clause `fourthly' of Section 300 may cover the cases of rash or negligent act done with the knowledge of the likelihood of its dangerous consequences and may entail punishment under Section 304 Part II IPC. Section 304A IPC takes out of its ambit the cases of death of any person by doing any rash or negligent act amounting to culpable homicide of either description. 41. A person, responsible for a reckless or rash or negligent act that causes death which he had knowledge as a reasonable man that such act was dangerous enough to lead to some untoward thing and the death was likely to be caused, may be attributed with the knowledge of the consequence and may be fastened with culpability of homicide not amounting to murder and punishable under Section 304 Part II IPC. 42. There is no incongruity, if simultaneous with the offence under Section 304 Part II, a person who has 28 done an act so rashly or negligently endangering human life or the personal safety of the others and causes grievous hurt to any person is tried for the offence under Section 338 IPC. 43. In view of the above, in our opinion there is no impediment in law for an offender being charged for the offence under Section 304 Part II IPC and also under Sections 337 and 338 IPC. The two charges under Section 304 Part II IPC and Section 338 IPC can legally co-exist in a case of single rash or negligent act where a rash or negligent act is done with the knowledge of likelihood of its dangerous consequences. 44. By charging the appellant for the offence under Section 304 Part II IPC and Section 338 IPC - which is legally permissible - no prejudice has been caused to him. The appellant was made fully aware of the charges against him and there is no failure of justice. We are, therefore, unable to accept the submission of Mr. U.U. Lalit that by charging the appellant for the offences 29 under Section 304 Part II IPC and Section 338 IPC for a rash or negligent act resulting in injuries to eight persons and at the same time committed with the knowledge resulting in death of seven persons, the appellant has been asked to face legally impermissible course. 45. In Prabhakaran Vs. State of Kerala14, this Court was concerned with the appeal filed by a convict who was found guilty of the offence punishable under Section 304 Part II IPC. In that case, the bus driven by the convict ran over a boy aged 10 years. The prosecution case was that bus was being driven by the appellant therein at the enormous speed and although the passengers had cautioned the driver to stop as they had seen children crossing the road in a queue, the driver ran over the student on his head. It was alleged that the driver had real intention to cause death of persons to whom harm may be caused on the bus hitting them. He was charged with offence punishable under Section 302 IPC. The Trial Court found that no 14 2007 (14) SCC 269 30 intention had been proved in the case but at the same time the accused acted with the knowledge that it was likely to cause death, and, therefore, convicted the accused of culpable homicide not amounting to murder punishable under Section 304 Part II IPC and sentenced him to undergo rigorous imprisonment for five years and pay a fine of Rs.15,000/- with a default sentence of imprisonment for three years. The High Court dismissed the appeal and the matter reached this Court. While observing that Section 304A speaks of causing death by negligence and applies to rash and negligent acts and does not apply to cases where there is an intention to cause death or knowledge that the act will in all probability cause death and that Section 304A only applies to cases in which without any such intention or knowledge death is caused by a rash and negligent act, on the factual scenario of the case, it was held that the appropriate conviction would be under Section 304A IPC and not Section 304 Part II IPC. Prabhakaran14 does not 31 say in absolute terms that in no case of an automobile accident that results in death of a person due to rash and negligent act of the driver, the conviction can be maintained for the offence under Section 304 Part II IPC even if such act (rash or negligent) was done with the knowledge that by such act of his, death was likely to be caused. Prabhakaran14 turned on its own facts. Each case obviously has to be decided on its own facts. In a case where negligence or rashness is the cause of death and nothing more, Section 304A may be attracted but where the rash or negligent act is preceded with the knowledge that such act is likely to cause death, Section 304 Part II IPC may be attracted and if such a rash and negligent act is preceded by real intention on the part of the wrong doer to cause death, offence may be punishable under Section 302 IPC. re: question (ii) 46. On behalf of the appellant it was strenuously urged that the conviction of the appellant by the High 32 Court for the offence under Section 304 Part II IPC rests solely on the premise that the appellant had knowledge that his reckless or negligent driving in a drunken condition could result in serious consequences of causing fatal accident . It was submitted that neither in the charge framed against the appellant, the crux of the prosecution case that the appellant was in a drunken condition was stated nor incriminating evidences and circumstances relating to rashness or negligence of the accused in the drunken condition were put to him in the statement under Section 313 of the Code. 47. It is a fact that no charge under Section 185 of the Motor Vehicles Act, 1988 and Section 66(1)(b) of the Bombay Prohibition Act, 1949 was framed against the appellant. It is also a fact that in the charge framed against the appellant under Section 304 Part II IPC, the words `drunken condition' are not stated and the charge reads; `on November 12, 2006 between 3.45 to 4.00 a.m. he was driving the car bearing Registration No. 33 MH-01-R-580 rashly and negligently with knowledge that people are sleeping on footpath and likely to cause death of those persons rammed over the footpath and thereby caused death of 8 persons who were sleeping on footpath on Carter Road, Bandra (West), Mumbai and thereby committed an offence punishable under Section 304 Part II IPC'. The question is whether the omission of the words, `in drunken condition' after the words `negligently' and before the words `with knowledge' has caused any prejudice to the appellant. 48. Section 464 of the Code reads as follows: "S.464. - Effect of omission to frame, or absence of, or error in, charge.- (1) No finding sentence or order by a court of competent jurisdiction shall be deemed invalid merely on the ground that no charge was framed or on the ground of any error, omission or irregularity in the charge including any misjoinder of charges, unless, in the opinion of the court of appeal, confirmation or revision, a failure of justice has in fact been occasioned thereby. (2) If the court of appeal, confirmation or revision is of opinion that a failure of justice has in fact been occasioned, it may- 34 (a) In the case of an omission to frame a charge, order that a charge be framed and that the trial be recommenced from the point immediately after the framing of the charge. (b) In the case of an error, omission or irregularity in the charge, direct a new trial to be had upon a charge framed in whatever manner it thinks fit: Provided that if the court is of opinion that the facts of the case are such that no valid charge could be preferred against the accused in respect of the facts proved, it shall quash the conviction. 49. The above provision has come up for consideration before this Court on numerous occasions. It is not necessary to refer to all these decisions. Reference to a later decision of this Court in the case of Anna Reddy Sambasiva Reddy7 delivered by one of us (R.M. Lodha, J.) shall suffice. In paras 55-56 of the Report in Anna Reddy Sambasiva Reddy7 it has been stated as follows: "55. In unmistakable terms, Section 464 specifies that a finding or sentence of a court shall not be set aside merely on the ground that a charge was not framed or that charge was defective unless it has occasioned in prejudice. Because of a mere defect in 35 language or in the narration or in form of the charge, the conviction would not be rendered bad if accused has not been adversely affected thereby. If the ingredients of the section are obvious or implicit, conviction in regard thereto can be sustained irrespective of the fact that the said section has not been mentioned. 56. A fair trial to the accused is a sine quo non in our criminal justice system but at the same time procedural law contained in the Code of Criminal Procedure is designed to further the ends of justice and not to frustrate them by introduction of hyper- technicalities. Every case must depend on its own merits and no straightjacket formula can be applied; the essential and important aspect to be kept in mind is: has omission to frame a specific charge resulted in prejudice to the accused." 50. In light of the above legal position, if the charge under Section 304 Part II IPC framed against the appellant is seen, it would be clear that the ingredients of Section 304 Part II IPC are implicit in that charge. The omission of the words `in drunken condition' in the charge is not very material and, in any case, such omission has not at all resulted in prejudice to the appellant as he was fully aware of the prosecution 36 evidence which consisted of drunken condition of the appellant at the time of incident. 51. PW-1 is the doctor who examined the appellant immediately after the incident. In his deposition he stated that he had taken the blood of the accused as he was found in drunken condition. On behalf of the appellant PW-1 has been cross examined but there is no cross-examination of PW-1 on this aspect. 52. It is a fact that evidence of PW-1, as noticed above, has not been put to the appellant in his statement under Section 313 of the Code but that pales into insignificance for want of cross examination of PW-1 in regard to his deposition that the appellant was found in drunken condition and his blood sample was taken. 53. CA Report (Ex. 49) too has not been specifically put to the appellant at the time of his examination under Section 313 of the Code but it is pertinent to notice that PW-18 (Investigating Officer) 37 deposed that he had forwarded blood sample of the accused and the bottle found in the car to the chemical analyzer (CA) on 14.11.2006 and 15.11.2006 respectively. He further deposed that he collected the medical certificate from Bhabha Hospital and he had received the CA report (Ex. 49). PW-18 has also not been cross examined by the defence in respect of the above. In the examination under Section 313 of the Code the following questions were put to the appellant: Question 9: "What you want to say about the further evidence of above two witnesses that police while drawing spot panchanama seized one ladies chappal, remote, lighter, cigarette perfume and so called liquor bottle from the vehicle i.e. MH-01-R-580?" The appellant answered `I do not know' Question 16: " What you want to say about the evidence of Meenakashi Patil who has stated that initial investigation as carried out by her and further investigation was entrusted to PI Phulsunder from 13.11.2006 and on due investigation police concluded 38 themselves that your rash and negligence driving caused the death of seven persons and injury to the eight persons by vehicle No. MH-01-R-580 by consuming alcohol so police have charge sheeted you?" He answered, `It is false'. 54. The above questions in his examination under Section 313 of the Code show that the appellant was fully aware of the prosecution evidence relating to his rash and negligent driving in the drunken condition. In the circumstances, by not putting to the appellant expressly the CA report (Ex. 49) and the evidence of PW 1, no prejudice can be said to have been caused to the appellant. The words of P.B. Gajendragadkar, J. (as he then was) in Jai Dev Vs. State of Punjab15 speaking for three-Judge Bench with reference to Section 342 of the Code (corresponding to Section 313 of the 1973 Code) may be usefully quoted: "21 . . . . . . the ultimate test in determining whether or not the accused has been fairly 15 AIR 1963 SC 612 39 examined under Section 342 would be to enquire whether, having regard to all the questions put to him, he did get an opportunity to say what he wanted to say in respect of prosecution case against him. If it appears that the examination of the accused person was defective and thereby a prejudice has been caused to him, that would no doubt be a serious infirmity. . . . . . . . .". 55. In Shivaji Sahabrao Bobade and Anr. Vs. State of Maharashtra8 a 3-Judge Bench of this Court stated: "16. ........It is trite law, nevertheless fundamental, that the prisoner's attention should be drawn to every inculpatory material so as to enable him to explain it. This is the basic fairness of a criminal trial and failures in this area may gravely imperil the validity of the trial itself, if consequential miscarriage of justice has flowed. However, where such an omission has occurred it does not ipso facto vitiate the proceedings and prejudice occasioned by such defect must be established by the accused. In the event of evidentiary material not being put to the accused, the court must ordinarily eschew such material from consideration. It is also open to the appellate court to call upon the counsel for the accused to show what explanation the accused has as regards the circumstances established against him but not put to him and if the accused is unable to offer the appellate court any plausible or reasonable explanation of such circumstances, the court may assume that no acceptable answer exists and that even if the accused had been questioned at the proper time in the trial court he would not have been able to furnish any good ground to get out of the circumstances on which the trial court had relied for its conviction". 40 56. The above decisions have been referred in Asraf Ali Vs. State of Assam16. The Court stated: "21. Section 313 of the Code casts a duty on the court to put in an enquiry or trial questions to the accused for the purpose of enabling him to explain any of the circumstances appearing in the evidence against him. It follows as a necessary corollary therefrom that each material circumstance appearing in the evidence against the accused is required to be put to him specifically, distinctly and separately and failure to do so amounts to a serious irregularity vitiating trial, if it is shown that the accused was prejudiced. 22. The object of Section 313 of the Code is to establish a direct dialogue between the court and the accused. If a point in the evidence is important against the accused, and the conviction is intended to be based upon it, it is right and proper that the accused should be questioned about the matter and be given an opportunity of explaining it. Where no specific question has been put by the trial court on an inculpatory material in the prosecution evidence, it would vitiate the trial. Of course, all these are subject to rider whether they have caused miscarriage of justice or prejudice. 24. In certain cases when there is perfunctory examination under Section 313 of the Code, the matter is remanded to the trial court, with a direction to retry from the stage at which the prosecution was closed". 16 2008 (16) SCC 328 41 57. From the above, the legal position appears to be this : the accused must be apprised of incriminating evidence and materials brought in by the prosecution against him to enable him to explain and respond to such evidence and material. Failure in not drawing the attention of the accused to the incriminating evidence and inculpatory materials brought in by prosecution specifically, distinctly and separately may not by itself render the trial against the accused void and bad in law; firstly, if having regard to all the questions put to him, he was afforded an opportunity to explain what he wanted to say in respect of prosecution case against him and secondly, such omission has not caused prejudice to him resulting in failure of justice. The burden is on the accused to establish that by not apprising him of the incriminating evidence and the inculpatory materials that had come in the prosecution evidence against him, a prejudice has been caused resulting in miscarriage of justice. 42 58. Insofar as present case is concerned, in his statement under Section 313, the appellant was informed about the evidence relating to the incident that occurred in the early hours (between 3.45 a.m. to 4.00 a.m.) of November 12, 2006 and the fact that repairs were going on the road at that time. The appellant accepted this position. The appellant was also informed about the evidence of the prosecution that vehicle No. MH-01-R-580 was involved in the said incident. This was also accepted by the appellant. His attention was brought to the evidence of the eye-witnesses and injured witnesses, namely, PW-2, PW-3, PW-4, PW-5, PW-6, PW- 7, PW-8, PW-9 and PW-10 that at the relevant time they were sleeping on the pavement of Carter Road, Bandra (West) outside the temporary huts and there was an accident in which seven persons died and eight persons got injured. The attention of the appellant was also drawn to the evidence of the spot panchas (PW-11 and 43 PW-16) that they had noticed that the car no. MH-01-R- 580 at the time of preparation of spot panchnama was in a heavily damaged condition with dislodged right side wheel and some blood was found on the earth and the huts were found damaged. The prosecution evidence that the appellant was seen driving car no. MH-01-R-580 at high speed from Khar Danda side and that rammed over the footpath and crushed the labourers sleeping there was also brought to his notice. The evidence of the mechanical expert (PW-15) that he checked the vehicle and found no mechanical defect in the car was also brought to his notice. During investigation, the police concluded that the rash and negligent driving of the appellant by consuming alcohol caused the death of seven persons and injury to the eight persons. The conclusion drawn on the completion of investigation was also put to him. The appellant's attention was also invited to the materials such as photographs, mechanical inspections of the car, seized articles, liquor bottle, etc. 44 Having regard to the above, it cannot be said that the appellant was not made fully aware of the prosecution evidence that he had driven the car rashly or negligently in a drunken condition. He had full opportunity to say what he wanted to say with regard to the prosecution evidence. 59. The High Court in this regard held as under : "29............The salutary provision of section 313 of the Code have been fairly, or at least substantially, complied with by the trial court, in the facts and circumstances of this case. The real purpose of putting the accused at notice of the incriminating circumstances and requiring him to offer explanation, if he so desires, has been fully satisfied in the present case. During the entire trial, copies of the documents were apparently supplied to the accused, even prior to the framing of the charge. After such charge was framed, all the witnesses were examined in the presence of the accused and even limited questions regarding incriminating material put by the court to the accused in his statement under Section 313 of the Code shows that the entire prosecution case along with different exhibits was put to the accused. He in fact did not deny the suggestions that the witnesses had been examined in his presence and he was aware about the contents of their statements. All 45 this essentially would lead to only one conclusion that the contention raised on behalf of the accused in this regard deserves to be rejected. While rejecting this contention we would also observe that the admission or confession of the accused in his statement under section 313 of the Code, in so far as it provides support or even links to, or aids the case of the prosecution proved on record, can also be looked into by the court in arriving at its final conclusion. It will be more so when explanation in the form of answers given by the accused under Section 313 of the Code are apparently untrue and also when no cross examination of the crucial prosecution witnesses was conducted on this line." We are in agreement with the above view of the High Court. r e: question (iii ) 60. The crucial question now remains to be seen is whether the prosecution evidence establishes beyond reasonable doubt the commission of offence under Section 304 Part II IPC, Section 338 IPC and Section 337 IPC against the appellant. 61. The appellant has not denied that in the early hours of November 12, 2006 between 3.45-4.00 a.m. on the South-North Road at the East side of Carter Road, 46 Bandra (West), Mumbai, the car bearing registration no. MH-01-R-580 met with an accident and he was at the wheels at that time. PW-13 was working as a watchman at the construction site. He witnessed the accident. He deposed that he noticed that in the night of November 11, 2006 and November 12, 2006 at about 4.00 a.m., the vehicle bearing no. MH-01-R-580 came from Khar Danda side; the vehicle was in high speed and rammed over the pavement and crushed the labourers. He deposed that 14-15 persons were sleeping at that time on the pavement. He stated that he used to take rounds during his duty hours. His evidence has not at all been shaken in the cross-examination. 62. PW-2 is the complainant. He lodged the complaint of the incident at the Khar Police Station. In his deposition, he has stated that he was contractor with New India Construction Co. and nine labourers were working under him. At Carter Road, the work of road levelling was going on. He and other persons were 47 sleeping in a temporary hutment near railway colony. The labourers were sleeping on the pavement. When he was easing himself, at about 3.30 a.m. of November 12, 2006, he heard the commotion and saw the smoke coming out of the vehicle that rammed over the footpath. Six persons died on the spot; one expired in the hospital and eight persons sustained injuries. He confirmed that the police recorded his complaint and the complaint (Ex. 13) was read over to him by the police and was correct. He has been cross-examined by the defence but there is no cross examination in respect of his statement that he had got up to ease himself at about 3.30 a.m. on November 12, 2006 and he heard the commotion and saw smoke coming out of the vehicle. He has denied the suggestion of the defence that road was blocked to some extent for construction purpose. He denied that he had filed false complaint so as to avoid payment of compensation to the workers. 48 63. The first Investigating Officer (PW-17), who proceeded along with the staff no sooner the message was received from Khar 1 Mobile Van that accident had taken place at Carter Road, near Railway Officers Quarters and reached the spot, has deposed that on her arrival at the spot, she came to know that the labourers who were sleeping on footpath were run over by the vehicle bearing No. MH-01-R-580. She shifted the injured to the Bhabha Hospital; went to the Khar police station for recording the complaint and then came back to the site of accident and prepared Panchnama (Ex. 28) in the presence of Panchas PW-11 and PW-16. Exhibit 28 shows that the accident spot is towards south of railway quarters gate and is at a distance of about 110 feet. The length of footpath between railway quarters gate and Varun Co-operative Housing Society gate is about 160 feet. The accident spot is about 50 feet from the Varun Co-operative Housing Society gate. On the footpath, between railway quarters gate and Varun Co-operative 49 Housing Society gate, the temporary sheds were set up. The vehicle (Toyota Corolla) bearing No. MH-01-R-580 was lying in the middle of the road between road divider and footpath on Carter Road at about 50 feet from the north side of Varun Co-operative Housing Society gate and about 110 feet from railway quarters gate on the south side. The front wheel of the car was broken and mudguard was pressed. The spot panchnama shows 70 feet long brake marks in a curve from west side of the road divider towards footpath on eastern side. It is further seen from the spot panchnama that a tempo, mud digger and two trucks were parked on the road between Railway Quarters gate and Varun Cooperative Housing Society gate near the accident spot. The spot panchnama is duly proved by PW-11 and PW-16. There is nothing in the cross-examination of these witnesses to doubt their presence or veracity. The long brake marks in curve show that vehicle was being driven by the appellant at the high speed; the appellant had lost 50 control of the speeding vehicle resulting in the accident and, consequently, seven deaths and injury to eight persons. 64. PW-15 is a motor vehicle inspector. He deposed that he was summoned by the control room to check the vehicle MH 01-R-580 involved in the accident. At the time of inspection, right side wheel of the vehicle was found dislodged from the body of the vehicle and the engine was dislodged from the foundation; though the steering wheel was intact and brake lever and gear lever were operative. There was no air in the front wheel of the vehicle. He opined that accident might have happened on account of dash. He has been briefly cross-examined and the only thing he said in the cross-examination was that he could not say whether the accident took place due to dislodging of right side wheel and dislodging of engine from foundation. 65. The above evidence has been considered by the High Court quite extensively. The High Court, on 51 consideration of the entire prosecution evidence and having regard to the deficiencies pointed out by the defence, reached the conclusion that (1) the accused at the time of driving the car was under the influence of liquor; (2) he drove the car in drunken condition at a very high speed; and (3) he failed to control the vehicle and the vehicle could not be stopped before it ran over the people sleeping on the pavement. The High Court observed that the accused could not concentrate on driving as he was under the influence of liquor and the vehicle was being driven with loud noise and a tape recorder being played in high volume. The High Court held that the accused had more than 22 feet wide road for driving and there was no occasion for a driver to swing to the left and cover a distance of more than 55 feet; climb over the footpath and run over the persons sleeping on the footpath. The High Court took judicial notice of the fact that in Mumbai people do sleep on pavements. The accused was also aware of the fact that 52 at the place of occurrence people sleep as the accused was resident of that area. The High Court took note of the fact that the accused had admitted the accident and his explanation was that the accident occurred due to mechanical failure and the defect that was developed in the vehicle but found his explanation improbable and unacceptable. The High Court also observed that the factum of high and reckless speed was evident from the brake marks at the site. The speeding car could not be stopped by him instantaneously. In the backdrop of the above findings, the High Court held that the accused could be attributed to have a specific knowledge of the event that happened. The High Court, thus concluded that the accused had knowledge and in any case such knowledge would be attributable to him that his actions were dangerous or wanton enough to cause injuries which may even result into death of persons. 66. We have also carefully considered the evidence let in by prosecution - the substance of which has been 53 referred to above - and we find no justifiable ground to take a view different from that of the High Court. We agree with the conclusions of the High Court and have no hesitation in holding that the evidence and materials on record prove beyond reasonable doubt that the appellant can be attributed with knowledge that his act of driving the vehicle at a high speed in the rash or negligent manner was dangerous enough and he knew that one result would very likely be that people who were asleep on the pavement may be hit, should the vehicle go out of control. There is a presumption that a man knows the natural and likely consequences of his acts. Moreover, an act does not become involuntary act simply because its consequences were unforeseen. The cases of negligence or of rashness or dangerous driving do not eliminate the act being voluntary. In the present case, the essential ingredients of Section 304 Part II IPC have been successfully established by the prosecution against the appellant. The infirmities pointed out by Mr. U.U. 54 Lalit, learned senior counsel for the appellant, which have been noticed above are not substantial and in no way affect the legality of the trial and the conviction of the appellant under Section 304 Part II IPC. We uphold the view of the High Court being consistent with the evidence on record and law. 67. The trial court convicted the accused of the offence under Section 337 IPC but acquitted him of the charge under Section 338 IPC. The High Court noticed that two injured persons, namely, PW-6 and PW-8 had injuries over the right front temporal parietal region of the size of 5x3 cms. with scar deep with bleeding (Ex. 37 and 33 respectively). The High Court held that these were not simple injuries and were covered by the grievous hurt under Section 320 IPC. We agree. Charge under Section 338 IPC against the appellant is clearly established. 68. Insofar as charge under Section 337 IPC is concerned, it is amply established from the prosecution evidence that PW-5, PW-7, PW-9 and PW-10 received 55 various injuries; they suffered simple hurt. The trial court as well as the High Court was justified in convicting the appellant for the offence punishable under Section 337 IPC as well. r e: question (iv ) 69. The question now is whether the maximum sentence of three years awarded to the appellant by the High Court for the offence under Section 304 Part II IPC requires any modification? It was argued on behalf of the appellant that having regard to the facts : (i) the appellant has already undergone sentence of two months and has paid Rs. 8,50,000/- by way of fine and compensation; (ii) the appellant is further willing to pay reasonable amount as compensation/fine as may be awarded by this Court; (iii) the appellant was about 20 years of age at the time of incident; and (iv) the appellant lost his father during the pendency of the appeal and presently being the only member to support his family which comprises of mother and unmarried sister, he may 56 be released on probation of good conduct and behaviour or the sentence awarded to him be reduced to the period already undergone. 70. Sentencing is an important task in the matters of crime. One of the prime objectives of the criminal law is imposition of appropriate, adequate, just and proportionate sentence commensurate with the nature and gravity of crime and the manner in which the crime is done. There is no straitjacket formula for sentencing an accused on proof of crime. The courts have evolved certain principles: twin objective of the sentencing policy is deterrence and correction. What sentence would meet the ends of justice depends on the facts and circumstances of each case and the court must keep in mind the gravity of the crime, motive for the crime, nature of the offence and all other attendant circumstances. 71. The principle of proportionality in sentencing a crime doer is well entrenched in criminal jurisprudence. 57 As a matter of law, proportion between crime and punishment bears most relevant influence in determination of sentencing the crime doer. The court has to take into consideration all aspects including social interest and consciousness of the society for award of appropriate sentence. 72. This Court has laid down certain principles of penology from time to time. There is long line of cases on this aspect. However, reference to few of them shall suffice in the present case. 73. In the case of Krishnappa9, though this Court was concerned with the crime under Section 376 IPC but with reference to sentencing by courts, the Court made these weighty observations : "18. ........ Protection of society and deterring the criminal is the avowed object of law and that is required to be achieved by imposing an appropriate sentence. The sentencing courts are expected to consider all relevant facts and circumstances bearing on the question of sentence and proceed to impose a sentence commensurate with the gravity of the offence. Courts must hear the loud cry for justice by the society in cases of the heinous crime of rape on innocent helpless girls of tender years, as in this 58 case, and respond by imposition of proper sentence. Public abhorrence of the crime needs reflection through imposition of appropriate sentence by the court. There are no extenuating or mitigating circumstances available on the record which may justify imposition of any sentence less than the prescribed minimum on the respondent. To show mercy in the case of such a heinous crime would be a travesty of justice and the plea for leniency is wholly misplaced. ........." 74. In the case of Dalbir Singh10, this Court was concerned with a case where the accused was held guilty of the offence under Section 304A IPC. The Court made the following observations (at Pages 84-85 of the Report): "1. When automobiles have become death traps any leniency shown to drivers who are found guilty of rash driving would be at the risk of further escalation of road accidents. All those who are manning the steering of automobiles, particularly professional drivers, must be kept under constant reminders of their duty to adopt utmost care and also of the consequences befalling them in cases of dereliction. One of the most effective ways of keeping such drivers under mental vigil is to maintain a deterrent element in the sentencing sphere. Any latitude shown to them in that sphere would tempt them to make driving frivolous and a frolic." Then while dealing with Section 4 of the Probation of Offenders Act, 1958, it was observed that Section 4 could be resorted to when the court considers the 59 circumstances of the case, particularly the nature of the offence, and the court forms its opinion that it is suitable and appropriate for accomplishing a specified object that the offender can be released on the probation of good conduct. For application of Section 4 of the Probation of Offenders Act, 1958 to convict under Section 304A IPC, the court stated in paragraph 11 of the Report (at Pg. 86) thus:- "Courts must bear in mind that when any plea is made based on Section 4 of the PO Act for application to a convicted person under Section 304-A IPC, that road accidents have proliferated to an alarming extent and the toll is galloping day by day in India, and that no solution is in sight nor suggested by any quarter to bring them down.........." Further, dealing with this aspect, in paragraph 13 (at page 87) of the Report, this Court stated : "Bearing in mind the galloping trend in road accidents in India and the devastating consequences visiting the victims and their families, criminal courts cannot treat the nature of the offence under Section 304-A IPC as attracting the benevolent provisions of Section 4 of the PO Act. While considering the quantum of sentence to be imposed for the offence of causing death by rash or negligent driving of automobiles, one of the prime considerations 60 should be deterrence. A professional driver pedals the accelerator of the automobile almost throughout his working hours. He must constantly inform himself that he cannot afford to have a single moment of laxity or inattentiveness when his leg is on the pedal of a vehicle in locomotion. He cannot and should not take a chance thinking that a rash driving need not necessarily cause any accident; or even if any accident occurs it need not necessarily result in the death of any human being; or even if such death ensues he might not be convicted of the offence; and lastly, that even if he is convicted he would be dealt with leniently by the court. He must always keep in his mind the fear psyche that if he is convicted of the offence for causing death of a human being due to his callous driving of the vehicle he cannot escape from a jail sentence. This is the role which the courts can play, particularly at the level of trial courts, for lessening the high rate of motor accidents due to callous driving of automobiles." 75. In State of M.P. v. Saleem alias Chamaru & Anr.17, while considering the case under Section 307 IPC this Court stated in paragraphs 6-10 (pages 558-559) of the Report as follows : "6. Undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law and society could not long endure under such serious threats. It is, therefore, the duty of every court to award proper sentence having regard to the nature of 17 2005 (5) SCC 554 61 the offence and the manner in which it was executed or committed, etc. . . . . . . . . . . 7. After giving due consideration to the facts and circumstances of each case, for deciding just and appropriate sentence to be awarded for an offence, the aggravating and mitigating factors and circumstances in which a crime has been committed are to be delicately balanced on the basis of really relevant circumstances in a dispassionate manner by the court. Such act of balancing is indeed a difficult task. It has been very aptly indicated in Dennis Councle McGautha v. State of California (402 US 183) that no formula of a foolproof nature is possible that would provide a reasonable criterion in determining a just and appropriate punishment in the infinite variety of circumstances that may affect the gravity of the crime. In the absence of any foolproof formula which may provide any basis for reasonable criteria to correctly assess various circumstances germane to the consideration of gravity of crime, the discretionary judgment in the facts of each case, is the only way in which such judgment may be equitably distinguished. 8. The object should be to protect society and to deter the criminal in achieving the avowed object of law by imposing appropriate sentence. It is expected that the courts would operate the sentencing system so as to impose such sentence which reflects the conscience of the society and the sentencing process has to be stern where it should be. 9. Imposition of sentence without considering its effect on the social order in many cases may be in reality a futile exercise. The social impact of the crime e.g. where it relates to offences against 62 women, dacoity, kidnapping, misappropriation of public money, treason and other offences involving moral turpitude or moral delinquency which have great impact on social order and public interest, cannot be lost sight of and per se require exemplary treatment. Any liberal attitude by imposing meagre sentences or taking too sympathetic view merely on account of lapse of time in respect of such offences will be result wise counterproductive in the long run and against societal interest which needs to be cared for and strengthened by a string of deterrence inbuilt in the sentencing system. 10. The court will be failing in its duty if appropriate punishment is not awarded for a crime which has been committed not only against the individual victim but also against the society to which the criminal and victim belong. The punishment to be awarded for a crime must not be irrelevant but it should conform to and be consistent with the atrocity and brutality with which the crime has been perpetrated, the enormity of the crime warranting public abhorrence and it should "respond to the society's cry for justice against the criminal"." 76. In the case of Shailesh Jasvantbhai11, the Court referred to earlier decisions in Dhananjoy Chatterjee alias Dhana v. State of W.B.18, Ravji alias Ram Chandra v. State of Rajasthan19, State of M.P. v. Ghanshyam Singh20, Surjit Singh v. Nahara Ram & Anr.21, 18 (1994) 2 SCC 220 19 (1996) 2 SCC 175 20 (2003) 8 SCC 13 21 (2004) 6 SCC 513 63 State of M.P. v. Munna Choubey22. In Ravji19, this Court stated that the court must not only keep in view the rights of the criminal but also the rights of the victim of the crime and the society at large while considering the imposition of appropriate punishment. The punishment to be awarded for a crime must not be irrelevant but it should conform to and be consistent with the atrocity and brutality with which the crime has been perpetrated, the enormity of the crime warranting public abhorrence and it should "respond to the society's cry for justice against the criminal". 77. In Manish Jalan12, this Court considered Section 357 of the Code in a case where the accused was found guilty of the offences punishable under Sections 279 and 304A IPC. After noticing Section 357, the Court considered earlier decision of this Court in Hari Singh v. Sukhbir Singh & Ors.23 wherein it was observed, `it may be noted that this power of courts to award compensation 22 (2005) 2 SCC 710 23 (1988) 4 SCC 551 64 is not ancillary to other sentences but it is in addition thereto. This power was intended to do something to reassure the victim that he or she is not forgotten in the criminal justice system. It is a measure of responding appropriately to crime as well of reconciling the victim with the offender. It is, to some extent, a constructive approach to crimes. It is indeed a step forward in our criminal justice system". Then the court noticed another decision of this Court in Sarwan Singh & Ors. v. State of Punjab24 in which it was observed that in awarding compensation, it was necessary for the court to decide if the case was a fit one in which compensation deserved to be granted. Then the court considered another decision of this Court in Dilip S. Dahanukar v. Kotak Mahindra Co. Ltd. & Anr.25 wherein the court held at Page 545 of the Report as under: "38. The purpose of imposition of fine and/or grant of compensation to a great extent must be considered having the relevant factors therefor in mind. It may be compensating the person in one way or the other. The amount of 24 (1978) 4 SCC 111 25 (2007) 6 SCC 528 65 compensation sought to be imposed, thus, must be reasonable and not arbitrary. Before issuing a direction to pay compensation, the capacity of the accused to pay the same must be judged. A fortiori, an enquiry in this behalf even in a summary way, may be necessary. Some reasons, which may not be very elaborate, may also have to be assigned; the purpose being that whereas the power to impose fine is limited and direction to pay compensation can be made for one or the other factors enumerated out of the same; but sub-section (3) of Section 357 does not impose any such limitation and thus, power thereunder should be exercised only in appropriate cases. Such a jurisdiction cannot be exercised at the whims and caprice of a Judge." Having regard to the above legal position and the fact that the mother of the victim had no grievance against the appellant therein and she prayed for some compensation, this Court held that a lenient view could be taken in the matter and the sentence of imprisonment could be reduced and, accordingly, reduced the sentence to the period already undergone and directed the appellant to pay compensation of Rs. One lakh to the mother of the victim. 78. World Health Organisation in the Global Status Report on Road Safety has pointed out that 66 speeding and drunk driving are the major contributing factors in road accidents. According to National Crime Records Bureau (NCRB), the total number of deaths due to road accidents in India every year is now over 1,35,000. NCRB Report also states drunken driving as a major factor for road accidents. Our country has a dubious distinction of registering maximum number of deaths in road accidents. It is high time that law makers revisit the sentencing policy reflected in Section 304A IPC. 79. The facts and circumstances of the case which have been proved by the prosecution in bringing home the guilt of the accused under Section 304 Part II IPC undoubtedly show despicable aggravated offence warranting punishment proportionate to the crime. Seven precious human lives were lost by the act of the accused. For an offence like this which has been proved against the appellant, sentence of three years awarded by the High Court is too meagre and not adequate but 67 since no appeal has been preferred by the State, we refrain from considering the matter for enhancement. By letting the appellant away on the sentence already undergone i.e. two months in a case like this, in our view, would be travesty of justice and highly unjust, unfair, improper and disproportionate to the gravity of crime. It is true that the appellant has paid compensation of Rs. 8,50,000/- but no amount of compensation could relieve the family of victims from the constant agony. As a matter of fact, High Court had been quite considerate and lenient in awarding to the appellant sentence of three years for an offence under Section 304 Part II IPC where seven persons were killed. 80. We are satisfied that the facts and circumstances of the case do not justify benefit of probation to the appellant for good conduct or for any reduction of sentence. 81. The appeals are, accordingly, dismissed. Appellant's bail bonds are cancelled. He shall forthwith 68 surrender for undergoing the remaining sentence as awarded by the High Court in the Judgment and Order dated September 6, 2007. ................................. J. (R. M. Lodha) ................................ J. (Jagdish Singh Khehar) NEW DELHI, JANUARY 12, 2012. 69

scope and interpretation of sec.145[2] of N.I.Act=whether the petitioners/accused were not entitled to cross examine the complainant as regard to the entire facts contained in the affidavit of evidence of the complainant or their (petitioners‟) right of such a cross examination of the witness of the affidavit was limited to certain facts or their defences=In view of my above discussion, the impugned orders are modified to the extent that the cross examination of the complainant would not remain limited to the contents of Para 4 and 6 of the applications of the complainant, but shall also extend to the facts in addition to their defences, as may be deemed and essential by the learned Magistrate relevant in the facts and circumstances of the case keeping in view the object and scheme of the Act and particularly, provisions of Sections 139, 143 of the Act and Section 106 of Evidence Act.

Crl.M.Cs.3089/2011 & 3090/2011 Page 1 of 9 * THE HIGH COURT OF DELHI AT NEW DELHI Reserved on: 02.01.2012 Pronounced on: 11.01.2012 + CRL.M.C. NO. 3089/2011 M/S. SUKHDATA CHITS PVT. LTD. & ORS. …… Petitioner Through: Mr. Diwan Singh Chauhan, Advocate Versus SHRI RAJENDER PRASAD GUPTA …… Respondent Through: WITH CRL.M.C. NO. 3090/2011 PREM KUMAR ARYA ……Petitioner Through: Mr. Diwan Singh Chauhan, Advocate Versus SHRI RAJENDER PRASAD GUPTA …… Respondent Through: CORAM: HON’BLE MR. JUSTICE M.L. MEHTA M.L. MEHTA, J. 1. Present petitions have been filed under Article 227 of the Constitution of India read with Section 482 Cr. P.C. against impugned order dated 27.07.2011 passed by learned ASJ in Crl. Revision No. Crl.M.Cs.3089/2011 & 3090/2011 Page 2 of 9 66/2011 and order dated 07.02.2011 of the learned MM in Complaint Case No. 883/A/2010 under section 138 of Negotiable Instrument Act (hereinafter referred to as „the Act‟). 2. In his complaint filed by the respondent Rajendra Prasad Gupta under section 138 of the Act, it was alleged that the petitioners/accused, who is one of the Directors of M/s. Sukhdata Chits Pvt. Ltd., having its registered office at D-14/140, Sector-8, Rohini, Delhi-110 085, had issued a cheque of Rs. 50,000/- in favour of the respondent towards discharge of its liability, which cheque got dishonoured on presentation with remarks “funds insufficient‟. 3. It is averred by the respondent/complainant that petitioners were informed about the fate of the cheque and requested to honour it, but they refused to do so. Consequently, legal notice dated 28.01.2010 was sent to the petitioners through registered AD post which was duly served on them. However, inspite of the service of the legal notice upon the petitioners, they did not make any payment to the respondent/complainant. Thereupon, a complaint was filed by the respondent in the Court of learned MM and summons were served upon the petitioners. Complainant adduced his evidence by way of affidavit. 4. An application was filed by the accused/petitioners under Section 145(2) of the N.I.Act for cross examination of the respondent which came to be disposed by MM vide order dated 7.2.2011. The learned MM permitted cross examination of the complainant confined to Para 4 & 6 of the application and held that the rest of the paras of the application were legal or within the personal knowledge of the accused/petitioners under Crl.M.Cs.3089/2011 & 3090/2011 Page 3 of 9 section 106 of Indian Evidence Act and hence do not require any cross examination. The said order was challenged by the petitioners in revision in the court of learned ASJ, who upheld the order of the M.M. The above mentioned orders of the MM and the learned ASJ are challenged by way of the present petitions. 5. I have heard learned counsel for the petitioners and the respondent. 6. The only legal issue that arises for consideration is as to whether the petitioners/accused were not entitled to cross examine the complainant as regard to the entire facts contained in the affidavit of evidence of the complainant or their (petitioners‟) right of such a cross examination of the witness of the affidavit was limited to certain facts or their defences. The submission of the learned counsel for the petitioners was that the learned MM as also the learned Revision Court erred in limiting the right of the petitioners/accused to cross examine the complainant only to the facts stated in Para 4 and 6 of his applications. In other words, the submission was that the petitioners were prejudiced in case they were not allowed to cross examine the complainant as regard to the contents of the affidavit of evidence and were confined to their defences or limited facts. On the other hand, the submission of the learned counsel for the respondent was that the nature of the proceedings under Section 138 being of summary trial, there was certain presumptions, which arise against the petitioners under Section 139 of the Act and so, the right of cross examination of the complainant by the petitioners was confined to his defences or in any case to the limited facts. Crl.M.Cs.3089/2011 & 3090/2011 Page 4 of 9 7. Before adverting to the submission of the parties, it would be pertinent to consider the ideology behind the provisions provided in the Act in cases of dishonouring of cheque. Section 138 was enacted in public interest. Its objective is to “enhance the acceptability of cheques in settlement of liabilities by making the drawer liable for penalties in certain cases while at the same time providing „adequate safeguards‟ to prevent harassment of honest drawers. As the evil practice of issuing cheques in settlement of liabilities without there being adequate amount in the accounts became rampant, the Union Parliament thought it fit to curb the same effectively by enacting a stringent law while at the same time taking care to safeguard the interests of honest drawers: B. Mohan Krishna v. Union of India 1996 Crl.L.J. 638 (Andh. Pra.) (D.B.). In case of K.N. Beena vs. Maniyappan, 2001 Cr.L.J. 4745(SC), it has been held that under section 139 of the Act the Court has to presume, in a complaint under section 138 of the Act, that the cheque has been issued for a debt or liability. There is presumption in favour of the complainant that the cheque is towards the discharge of the debt or liability and it is for the applicant to prove the contrary and to rebut this presumption. This can be rebutted by the applicant by evidence only. Shailesh Kumar Aggarwal Vs. State of U.P. 2000 Crl. L.J. 2921 (All.) 8. Section 143, 144, 145 and 147 of the Act expressly depart from and override the Criminal Procedure Code. Section 143 provides the complaints under Section 138 of the Act to be tried in the summary manner except where the Magistrate felt that the sentence of imprisonment for a term exceeding one year may have to be passed or that for any other Crl.M.Cs.3089/2011 & 3090/2011 Page 5 of 9 reason, it is undesirable to try the case summarily. Number of such type of cases would be relatively smaller and insignificant. The fact remains is that Section 143 mandates, in general, to follow the summary trial procedure in such cases as far as possible. Section 145 of the Act, which is the subject of the interpretation in the present cases reads thus: “145. Evidence on affidavit. (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973, (2 of 1974.) the evidence of the complainant may be given by him on affidavit and may, subject to all just exceptions be read in evidence in any enquiry, trial or other proceeding under the said Code. (2) The Court may, if it thinks fit, and shall, on the application of the prosecution or the accused, summon and examine any person giving evidence on affidavit as to the facts contained therein.]” 9. Section 145 starts with the non abstante clause meaning thereby that notwithstanding the provisions of the Code of Criminal Procedure, the evidence of the complainant may be given by him on affidavit though taking of evidence by this mode would be subject to all just exceptions, which would mean that anything that was inadmissible in evidence or irrelevant or hearsay would not be taken in evidence though the same may be stated in the affidavit. 10. The provisions of Section 145 came for interpretation before the Hon‟ble Supreme Court in a recent judgment titled M/s. Mandvi Co-Op. Bank Ltd. Vs. Nimesh S. Thakore, I (2010) SLT 133. Though the controversy before the Supreme Court in the said case was not directly similar to what is in the instant case, but observations which were made and are relevant to the issue involved in the instant case can be reproduced as under: Crl.M.Cs.3089/2011 & 3090/2011 Page 6 of 9 “What section 145(2) of the Act says is simply this. The court may, at its discretion, call a person giving his evidence on affidavit and examine him as to the facts contained therein. But if an application is made either by the prosecution or by the accused the court must call the person giving his evidence on affidavit, again to be examined as to the facts contained therein. What would be the extent and nature of examination in each case is a different matter and that has to be reasonably construed in light of the provision of section 145(1) and having regard to the object and purpose of the entire scheme of sections 143 to 146. The scheme of sections 143 to 146 does not in any way affect the judge's powers under section 165 of the Evidence Act. As a matter of fact, section 145(2) expressly provides that the court may, if it thinks fit, summon and examine any person giving evidence on affidavit. But how would the person giving evidence on affidavit be examined, on being summoned to appear before the court on the application made by the prosecution or the accused? The affidavit of the person so summoned that is already on the record is obviously in the nature of examination-in-chief. Hence, on being summoned on the application made by the accused the deponent of the affidavit (the complainant or any of his witnesses) can only be subjected to cross-examination as to the facts stated in the affidavit. In so far as the prosecution is concerned the occasion to summon any of its witnesses who has given his evidence on affidavit may arise in two ways. The prosecution may summon a person who has given his evidence on affidavit and has been cross-examined for “re-examination”. The prosecution may also have to summon a witness whose evidence is given on affidavit in case objection is raised by the defence regarding the validity and/or sufficiency of proof of some document(s) submitted along with the affidavit. In that event the witness may be summoned to appear before the court to cure the defect and to have the document(s) properly proved by following the correct legal mode. This appears to us as the simple answer to the above question and the correct legal position”. 11. As observed by the Hon‟ble Supreme Court in the aforesaid case, on being summoned on the application of the petitioner/accused, the deponent of the affidavit could be subjected to the cross examination as to the facts stated in the affidavit. The question as to whether the accused would have the right to cross examine the deponent of affidavit as to the entire facts stated in the affidavit or his right of cross examination was limited to his defences or certain facts did not directly arise before the Supreme Court in the said case. It was however observed that what would be the extent and nature of examination in each case would be a different matter and that has to be reasonably construed in the light of the provision of Section 145(1) Crl.M.Cs.3089/2011 & 3090/2011 Page 7 of 9 of the Act and having regard to the object and purpose of the entire scheme of Section 143 to 146 of the Act. It has already been seen above that the scheme of Section 143 was that ordinarily, every case under Section 138 of the Act was to be tried as summary trial and the scheme of Section 145 was also to expedite the trial of such cases. The entire scheme of Section 143 to 146 was designed to lay down a much simplified procedure for the trial of dishonoured cheque cases with the sole object that the trial of those cases should follow a course even swifter than a summary trial. 12. With the legislative intent being not only of summary trial, but of swifter and expeditious disposal of dishonoured cheques cases, particularly Section 139 of the Act as also Section 118 of the Evidence Act providing presumption in favour of the complainant that issue of cheque was towards the debt or liability and Section 145 providing that the evidence could be led by the complainant by way of the affidavit, the petitioner/accused could not be said to have unlimited and unbridled right of subjecting the complainant to the usual and routine type of cross examination. If that was so, that would apparently be not only against the scheme and object of the provisions of summary trial, but would be contrary to the provisions of Section 139, 143 and 145 of the Act. 13. Thus it can be said that the phraseology “as to the facts contained therein” in Section 145(2) of the Act cannot be read to mean that the complainant can be subjected to be cross-examination of everything that he has stated on affidavit. If sub section (2) of Section 145 is interpreted to mean that in every case where the accused applies to the court to summon the complainant or his witness who has given evidence on affidavit under Crl.M.Cs.3089/2011 & 3090/2011 Page 8 of 9 sub section (1) and the court is obliged to summon him to tender oral examination-in-chief or to allow him to be subjected to cross examination as in summons or warrant trial cases, then the object of inserting such provision would be defeated. The Sub-Section (2) of Section 145 cannot be interpreted in a manner that would render Sub-Section (1) thereof or Section 139 & Section 143 redundant. 14. From the above discussion, it can be said that there cannot be any hard and fast rule as to what part of evidence tendered by way of affidavit could be eligible for cross examination. It was to be decided by the Magistrate depending upon the facts and circumstances of each case and also keeping in mind the scheme and objective of the Act, particularly Section 139, 143, 145 of the Act as also Section 106 of the Evidence Act. 15. The affidavits of evidence which have been filed in these cases are not only as regard to the averments of the complaint, but contained detailed facts attributing liability to the petitioners/accused. Some of those facts would not be required to be proved because of Section 139 of the Act as also Section 106 of the Evidence Act. It would also be unjust to say that in all cases, the cross examination would only be confined to the defences of the petitioners/accused. The petitioners would be entitled to cross examination of complainant as is done in the summary trial case, but at the same time, they could not be precluded from putting certain questions which would otherwise be relevant and essential for the just decision of the case. Limiting the right of the petitioners to cross examine only with regard to Para 4 and 6 of complainant‟s application may cause prejudice to the petitioners. Crl.M.Cs.3089/2011 & 3090/2011 Page 9 of 9 16. In view of my above discussion, the impugned orders are modified to the extent that the cross examination of the complainant would not remain limited to the contents of Para 4 and 6 of the applications of the complainant, but shall also extend to the facts in addition to their defences, as may be deemed and essential by the learned Magistrate relevant in the facts and circumstances of the case keeping in view the object and scheme of the Act and particularly, provisions of Sections 139, 143 of the Act and Section 106 of Evidence Act. 17. Petitions are disposed accordingly. M.L. MEHTA, J. JANUARY 11, 2012 akb

when the cheques were not issued in discharge of any „debt‟ or „liability‟ but were issued as interest free security deposits and so the provisions of section 138 of the Act were not applicable.?

Crl.M.C. 1136/2011 Page 1 of 8 * THE HIGH COURT OF DELHI AT NEW DELHI + CRL.M.C. 1136/2011 Reserved on: 14.12.2011 Pronounced on: 11.01.2012 DEEPAK VIG ..... Petitioner Through: Mr. Harish Malhotra, Senior Advocate with Mr. V.L. Madan and Mr. K.K. Madan, Advocates versus AVDESH MITTAL ..... Respondent Through: Mr. Ashish Middha and Mr.Y.R. Yadav, Advocates. CORAM: HON’BLE MR. JUSTICE M.L. MEHTA M.L. MEHTA, J. 1. This petition under section 482 Cr. P.C. read with section 227of the Constitution of India is preferred against the impugned order dated 23.12.2009 of learned Metropolitan Magistrate whereby in a complaint case under section 138 of Negotiable Instrument Act (for short „the Act‟), filed by the respondent herein, he ordered for issuance of summons to the petitioner. 2. Though the facts of the case are plain and simple, but, there is an interesting legal issue. By virtue of lease agreement dated 14.08.2008 arrived at between the petitioner/lessee and respondent/lessor the property of respondent situated at E-582 Greater Kailash – II, New Delhi was taken by the petitioner for the purpose of running a guest house for a period of five years on an agreed monthly rent of ` 19.00 lakh subject to increase in the rent as per said agreement. The lease was to Crl.M.C. 1136/2011 Page 2 of 8 come into force from 01.09.2008. The lease stipulated a lock-in period of one year before the contract could be terminated. One month‟s rent was to be payable in advance by the lessee/petitioner in case of termination of the lease deed. The relevant portions of the lease deed dated 14th August, 2008 read as follows: i. Clause 4 – “That the lessee shall pay a total sum of ` 1,50,00,000/- (Rupees One Crore Fifty lacs Only) by way of Interest free Security Deposit against the demised premises” ii. “The amount shall be retained by the lessor as interest free deposit and will be refundable at the time of termination of the said lease against handing over the vacant possession of the demised premises to the lessor” iii. Clause v sub clause (b) of clause 4 – “The lessor shall refund the security deposit immediately after taking over the possession of the property, in the case of default or delay in refund of the amount an interest of 36 % per annum on the amount will be charged till the whole of the security deposit is refunded” iv. Clause 2 sub clause (iv)- “The lessee shall keep the demised premises in a clean and hygienic condition at their own cost. The maintenance contract for all the items provided by the Lessor shall be borne by the Lessee. Full comprehensive annual maintenance contract for general air conditioner will be taken with ETA General by the Lessee” v. Clause 2 Sub Clause (vii)- “The lessee shall repair…..” vi. Clause 2 Sub Clause (ix)- “The Lessee shall keep the interior of the demised premises…damage or breakage caused by the lessee shall be made good by the lessee” vii. Clause 2 Sub clause (x)- “Maintainence responsibility….arising from negligence or misuse on the part of the Lessee. viii. Clause 3 Sub clause (iii)- “That the Lessor provided the electricity connection… If there is a requirement of the extra load to run the business smoothly it will be done at the cost of the lessee…… 3. In pursuance of the said agreement, the petitioner gave five cheques of the amounts of `5.00 lakh, `57.00 lakh, `16.00 lakh, `20.00 lakh and `52.00 lakh to the respondent. [Out of these five cheques, three cheques of `57.00 lakh, `16.00 lakh and `20.00 lakh were dishonoured on presentation by the bankers of the petitioner with the remarks “insufficient funds”]. Fresh cheques of these amounts were issued by the petitioner. Out of these three fresh cheques, two cheques of `16.00 & ` 20.00 lakh respectively dated 04.08.2009 and 11.08.2009 again got dishonoured on account of “payment stopped”. The respondent/complainant issued two separate legal notices to the petitioner in respect of these two dishonoured cheques. These Crl.M.C. 1136/2011 Page 3 of 8 notices were replied by the petitioner on 24.08.2009. Thereafter, the respondent filed the complaint case against the petitioner under section 138 of the Act, the cognizance of which was taken by the MM and the impugned order was passed summoning the petitioner. 4. There does not appear to be any dispute with regard to the facts as briefly noted above. The only contention that was raised by the petitioner in assailing the impugned order was that the cheques were not issued in discharge of any „debt‟ or „liability‟ but were issued as interest free security deposits and so the provisions of section 138 of the Act were not applicable. The learned counsel for the petitioner sought to rely upon the judgments of (1)Joseph Vilangadan Vs.Phenomenal Health Care Services Ltd, Cri (Writ) No. 2243 of 2009; (2) M.S. Narayana Menon Vs. State of Kerala, (2006) 6 SCC 39 and (3) K.S. Bakshi Vs. State, 146 (2008) DLT. 5. Per contra, the contention of learned counsel for the respondent/ complainant was that the cheques were forming part of the security amount of `1.5 crore which was the fundamental term of the lease agreement and that these formed part of the consideration of the contract and were given by the petitioner in discharge of his liability of payment of security and so the provisions of section 138 of the Act were applicable. The reliance was sought to be placed on the cases of K.S. Bakshi & Anr. Vs. State and Anr. 146 (2008) DLT 125; S. Thangamani Vs. R.S.T. Steels, 2001 107 Comp. Cas. 205. 6. I have heard learned counsel for the parties and perused the record. 7. Section 138 of the Act provides that wherein any cheque was drawn by a person for the payment of any amount of money to another person for the discharge, in whole or in part, of any debt or other liability, and it was returned by the drawer‟s Crl.M.C. 1136/2011 Page 4 of 8 bank because the amount in the drawer‟s account was insufficient to honour the cheque or it exceeded the amount arranged to be paid to such persons, shall be deemed to have committed offence. Of course, before the offence is deemed to be committed, various other conditions are also required to be fulfilled with which this court is not concerned for the decision in the instant case. The important ingredient under section 138 of the Act with which we are concerned in this case is that the cheque must have been issued in discharge of in whole or in part of any debt or other liability. A plain reading of this provision would mean that if the cheque is not issued for the discharge of any debt or other liability, this section could not be invoked. It is trite that if the cheque is issued only as security for the performance of certain contract or agreement and not towards discharge of any debt or any other liability, the offence under section 138 of the Act is not attracted. In the case of M.S Narayana Menon (Supra) the accused as also the complainant were stock brokers. The complainant entered into certain transactions on behalf of the accused. Cheque issued by the accused in favour of the complainant was dishonoured. The plea that was taken by the accused was that the complainant was in dire need of financial assistance and the said cheque was issued to enable him to tide over his financial necessities and it was not in discharge of any debt or liability payable to the complainant. The Supreme Court held that the defence is acceptable as probable and the cheque could not be said to have been issued in discharge of a debt as, for example, if a cheque is issued for security or for any other purpose the same would not come within the preview of section 138 of the Act. In the case of Joseph Vilangadan (Supra) the facts were that the Directors had given certain cheques as refundable security deposits to ensure due performance of their work. In the given facts and circumstances it was held that there did not exist any debt or liability and the cheques were given solely for the purpose of security and hence no action under section 138 of the Act was maintainable. In the case of K.S. Bakshi & Anr. Crl.M.C. 1136/2011 Page 5 of 8 (Supra) there was an agreement between the parties to construct a multi-storey residential building and certain sum was payable by the accused/appellant as security to ensure performance of the contract. A few cheques given as security for that purpose got dishonoured. Having regard to the terms of the agreement, it was held that the accused had a liability to pay the security amount to the complainant who was the owner of the said property and the discharge of this liability was stated as fundamental to the agreement. It was held that it was irrelevant whether such money was retained or returned in future. What was relevant for the purpose of section 138 of the Act was the fact that at the time of issuance of the cheque the accused company had liability to pay money to the complainant as the owner of the property. The promise/act of the complainant and the other owner of the said property of blocking their assets for a considerable period was held to be consideration as per section 2(d) of the Indian Contract Act and consequently the reciprocal obligation of the builder regarding security cheques to ensure performance of the contract would also be consideration for the contract. With these observations it was held that cheques formed part of the consideration of the contract and was payable towards liability. A distinction was drawn between a cheque issued as security and a cheque issued towards discharge of a liability to pay notwithstanding that the money is by way of security for due performance of the contract. 8. This Court in the case of Magnum Aviation Vs. State, 2010 (172) DLT 91 in para 8 observed as under: “8. If at the time of entering into a contract it is one of the conditions of the contract that the purchaser has to pay the amount in advance then advance payment is a liability of the purchaser. The seller of the items would not have entered into contract unless the advance payment was made to him. A condition of advance payment is normally put by the seller for the reason that the purchaser may not later on retract and refuse to take the goods either manufactured for him or procured for Crl.M.C. 1136/2011 Page 6 of 8 him. Payment of cost of the goods in advance being one of the conditions of the contract becomes liability of the purchaser. The purchaser who had issued the cheque could have been asked to make payment either by draft or in cash. Since giving cheque is a mode of payment like any other mode of payment, it is normally accepted as a payment. The issuance of a cheque at the time of signing such contract has to be considered against a liability as the amount written in the cheque is payable by the person on the date mentioned in the cheque. Where the seller or manufacturer, on the basis of cheques issued, manufactures the goods or procures the goods from outside, and has acted upon the contract, the liability of the purchaser gets fastened, the moment the seller or manufacturer acts upon the contract and procures the goods. If for any reason, the seller fails to manufacture the goods or procure the goods it is only under those circumstances that no liability is created. However, where the goods or raw material has been procured for the purchaser by seller or goods have been manufactured by the seller, it cannot be said that the cheques were not issued against the liability. I consider that if the liability is not construed in this manner, the sole purpose of making dishonour of the cheque as an offence stands defeated. The purpose of making or enacting Section 138 of the N.I. Act was to enhance the acceptability of cheque in settlement of commercial transactions, to infuse trust into commercial transactions and to make a cheque as a reliable negotiable instrument and to see that the cheques of business transactions are not dishonoured. The purpose of Negotiable Instrument Act is to make an orderly statement of rules of law relating to negotiable instruments and to ensure that mercantile instruments should be equated with goods passing from one hand to other. The sole purpose of the Act would stand defeated if after placing orders and giving advance payments, the stop payments are issued and orders are cancelled on the ground of pricing of the goods as was done in this case.” 9. Having discussed the law on the point as above, the answer to the controversy to my mind is very simple. Section 139 of the Act states that it shall be presumed unless contrary is proved that the holder of a cheque received the cheque of a nature referred to in section 138 of the Act against discharge in whole or in part of any debt or other liability. Thus, section 139 raises presumption that the cheque was given for consideration. This issue has already been settled by several judicial pronouncements of the Supreme Court. Reference is made to the case of Maruti Udyog Ltd. Vs. Narender and Ors. JT 1998 (9) SC 411 and MMTC Ltd. Vs. Medchl Chemicals & Pharma (P) Ltd. In the later case it was held as under: Crl.M.C. 1136/2011 Page 7 of 8 “15. A similar view has been taken by this Court in the case of M.N. Beena Vs. Muniyappan reported in 2001(7) Scale 331, wherein again it has been held that under Section 139 of the Negotiable Instruments Act the Court has to presume, in complaint under Section 138, that the cheque had been issued for a debit or liability. 16. There is therefore no requirement that the Complainant must specifically allege in the complaint that there was a subsisting liability. The burden of providing that there was no existing debit or liability was on the respondents. This they have to discharge in the trial. At this stage, merely on the basis of averments in the petitions filed by them the High Court could not have concluded that there was no existing debt or liability.” 10. Keeping in mind that there was a distinction between cheque issued merely as security and the cheque issued towards discharge of a liability to pay notwithstanding that the money is by way of security for due performance of the contract, it is seen that the payment of security amount of `1.5 crore by the petitioner was a fundamental term of the lease agreement between the parties. This is irrespective of the fact that the said security was refundable at the time of vacation of the premises by the petitioner. What was relevant was that the aforesaid cheque formed part of the security deposit which was payable by the petitioner as a liability to the complainant. The cheques were not given as security per se, but were issued towards discharge of liability of payment of security. In consideration of this security, the respondent agreed to remain deprived of the possession of the lease property for a certain period. The lease deed entered into between the parties constituted a valid contract between them. The interest free security deposit amount of `1.5 crore to be paid by the petitioner to the respondent constituted his liability as against the lessor as it formed a part of the consideration of the contract for the use of the property by the petitioner as lessee. 11. In the case of S. Thangamani (surpa) it was held that: “With regard to the point in relation to security, I am of the view that whether the cheque was given as security or towards discharge of liability is a question to be decided by the Trial Court during the course Crl.M.C. 1136/2011 Page 8 of 8 of trial. Therefore, the point regarding issuance of cheque as security cannot be urged at this stage before this Court.” 12. From all these prima facie it is established that the dishonoured cheques were issued towards the discharge of a liability notwithstanding the fact that the money was by way of security deposit for the due performance of the terms of the agreement and was refundable at the time of vacation of the premises. 13. In view of my above discussion, I am of the considered view that the impugned order does not suffer from any infirmity or illegality and that being so, the petition is hereby dismissed. M.L. MEHTA, J. JANUARY 11, 2012 awanish

Limitation Act, 1963-Articles 64 & 65 of the Schedule-Indian Limitation Act, 1908-Articles 142 & 143 of the Schedule-Purchase of suit property by plaintiffs by registered sale deeds without knowledge of earlier purchase of the same by defendants-Suit for possession claiming title by adverse possession was decreed by trial court-High Court reversing the judgment of the trial court holding that the plaintiffs failed to prove their title by adverse possession-Correctness of-Held, on facts and evidence, positive intention to dispossess the suit property essential to claim adverse possession was not proved by plaintiffs and hence, suit for possession dismissed. Appellant-plaintiffs purchased suit property by two registered sale deeds subsequent to the purchase of the same by respondents-defendants. A suit for possession filed by the appellants claiming title on the basis of adverse possession was decreed by the trial court. The High Court, in appeal, reversed the judgment of the trial court holding that the plaintiffs failed to prove their title by adverse possession. In appeal to this Court, the appellants contended that the acknowledgment of the owner's title was not sine qua non for claiming title by adverse possession.

Dismissing the appeal, the Court HELD: 1.1. Adverse possession is based on the theory or presumption that the owner has abandoned the property to the adverse possessor on the acquiescence of the owner to the hostile acts and claims of the person in possession . It follows that sound qualities of a typical adverse possession lie in it being open, continuous and hostiles. [Para 5] [496-D, E] Downing v. Bird, [100] So. 2d 57 (Fla. 1958); Arkansas Commemorative Commission v. City of Little Rock, 227 Ark. 1085, 303 S.W.2d 569 (1957); Monnot v. Murphy, [207 N.Y. 240, 100 N.E. 742 (1913) and City of Rock Springs v. Sturm, 39 Wyo. 494, 273 P. 908, 97 A.L.R. 1 (1929), referred to. 1.2. Efficacy of adverse possession law in most jurisdictions depend on strong limitation statutes by operation of which, the right to access the court expires through effluxion of time. As against rights of the paper-owner, in the context of adverse possession, there evolves a set of competing rights in favour of the adverse possessor who has, for a long period of time, cared for the land, developed it as against the owner of the property who has ignored the property. Modern statutes of limitation operate, as a rule, not only to cut off one's right to bring an action for the recovery of property that has been in the adverse possession of another for a specified time but also to vest the possessor with title. The intention of such statutes is not to punish one who neglects to assert rights but to protect those who have maintained the possession of property for the time specified by the statute under claim of right or color of title. Simple application of Limitation shall not be enough by itself for the success of an adverse possession claim. [Para 6] [496-F, G; 497-A, B] American Jurisprudence Vol. 3, referred to. Fairweather v. St. Marylebone Property Co., (1962) 2 WLR 1020; [1962] 2 All ER 299; Taylor v. Twinberries, [1930] 2 KB 17 and Chung Ping Kwan & Ors. v. Lam Island Development Company Ltd. (Hong Kong), (1997) AC 38, referred to. 1.3. To assess a claim of adverse possession, two-pronged enquiry is required. Firstly, application of limitation provision thereby jurisprudentially "Willful neglect" element on part of the owner established. Successful application in this regard distances the title of the land from the paper-owner. Secondly, specific positive intention to dispossess on the part of the adverse possessor effectively shifts the title already distanced from the paper owner, to the adverse possessor. Right thereby accrues in favour of adverse possessor as intent to dispossess is an express statement of urgency and intention in the upkeep of the property. [Para 9] [498-D, E, F] 1.4 The aspect of positive intention is weakened by the two sale deeds. Intention is a mental element which is proved and disproved through positive acts. Existence of some events can go a long way to weaken the presumption of intention to dispossess which might have painstakingly grown out of long possession which otherwise would have sufficed in a standard adverse possession case. The fact of possession is important in more than one way. Firstly, due compliance on this count attracts limitation act and secondly, it also assists the court to unearth as the intention to dispossess. [Para 13] [499-D, E] JA Pye (Oxford) Ltd. v. United Kingdom, [2005] 49 ERG 90; [2005] ECHR 921, referred to. 1.5. Intention to possess can not be substituted for intention to dispossess which is essential to prove adverse possession. The factum of possession in the instant case only goes on to objectively indicate intention to possess the land. If the appellant has purchased the land without the knowledge of earlier sale, then in that case the intention element is not of the variety and degree which is required for adverse possession to materialize. [Para 15] [499-G; 500-A] Thakur Kishan Singh (dead) v. Arvind Kumar, [1994] 6 SCC 591, referred to. Lambeth London Borough Council v. Blackburn, [2001] 82 P & CR 494 and The Powell v. Macfarlane, [1977] 39 P & CR 452, referred to. 1.6. There must be intention to dispossess. It needs to be open and hostile enough to bring the same to the knowledge and plaintiff has an opportunity to object. After all adverse possession right is not a substantive right but a result of the waiving (willful) or omission (negligent or otherwise) of right to defend or care for the integrity of property on the part of the paper owner of the land. Adverse possession statutes, like other statutes of limitation, rest on a public policy that does not promote litigation and aims at the repose of conditions that the parties have suffered to remain unquestioned long enough to indicate their acquiescence. Intention implies knowledge on the part of the adverse possessor. A peaceful, open and continuous possession is engraved in the maxim nec vi, nec clam, nec precario i.e. not by force, nor stealth, nor the licence of the owner. [Paras 20, 22 and 23] [501-F, G; 502-A, B-E; 504-C] Saroop Singh v. Banto & Ors., [2005] 8 SCC 330; Karnataka Board of Wakf v. Government of India & Ors., [2004] 10 SCC 779; Narne Rama Murthy v. Ravula Somasundaram & Ors., [2005] 6 SCC 614; S. M. Karim v. Mst. Bibi Sakini, AIR (1964) SC 1254; P. Periasami v. Periathambi, [1995] 6 SCC 253; Mohan Lal v. Mirza Abdul Gaffar, [1996] 1 SCC 639; M. Durai v. Madhu & Ors., (2007) 2 SCALE 309; Saroop Singh v. Banto & Ors., [2005] 8 SCC 330; Mohammadbhai Kasambhai Sheikh & Ors. v. Abdulla Kasambhai Sheikh, [2004] 13 SCC 385; T. Anjanappa & Ors. v. Somalingappa & Anr., [2006] 7 SCC 570; Des Raj & Ors. v. Bhagat Ram (Dead) by Lrs. & Ors., (2007) 3 SCALE 371 and Govindammal v. R. Perumal Chettiar & Ors., JT [2006] 10 SC 121 : [2006] 11 SCC 600, referred to. Secy. of State v. Debendra Lal Khan, AIR (1934) PC 23 and State of West Bengal v. The Dalhousie Institute Society, AIR (1970) SC 1978, distinguished. R. v. Oxfordshire County Council & Ors., Ex Parte Sunningwell Parish Council, [1999] 3 ALL ER 385; [1999] 3 WLR 160; Beresford, R (on the application of) v. City of Sunderland, (2003) 3 WLR 1306; [2004] 1 All ER 160; Beaulane Properties Ltd. v. Palmer, (2005) 3 WLR 554 : (2005) EWHC 817 (Ch); JA Pye (Oxford) Ltd. v. United Kingdom, (2005) EHCR 921 (2005) 49 ERG 90 [2005] ECHR 921; Beyeler v. Italy [GC], no. 33202/96 [108-14 ECHR 2000-I], referred to. Declaration of the Rights of Man and of the Citizen, (1789) and Universal of Human Rights, (1948) referred to. 1.7. Adverse Possession is a right which comes into play not just because someone loses high right to reclaim the property out of continuous and willful neglect but also on account of possessor's positive intent to dispossess. Therefore, it is important to take into account before stripping somebody of his lawful title, whether there is an adverse possessor worthy and exhibiting more urgent and genuine desire to dispossess and step into the shoes of the paper owner of the property. [Para 58] [513-A, B] P. Krishnamoorthy, Romy Chacko, Girjesh Pandey and Rajiv Mehta for the Appellants. K.R. Sasiprabhu, Arvind Varma, Swati Sinha and Jaysree Singh (for M/S Fox Mandal & Co.) for the Respondents. 2007 AIR 1753, 2007(5 )SCR491 , 2007(6 )SCC59 , 2007(6 )SCALE95 , 2007(6 )JT86 CASE NO.: Appeal (civil) 7062 of 2000 PETITIONER: P.T. Munichikkanna Reddy & Ors RESPONDENT: Revamma and Ors DATE OF JUDGMENT: 24/04/2007 BENCH: S.B. Sinha & Markandey Katju JUDGMENT: J U D G M E N T S.B. SINHA, J : BACKGROUND FACTS One Thippaiah was the owner of 5 acre 23 guntas of land having been recorded in Survey No. 153/1 of Chikkabanavara Village. Nanjapa, adoptive father of Respondent No. 1 purchased a portion thereof measuring 1 acre 21 guntas on 11.09.1933. By reason of two different sale deeds, dated 11.04.1934 and 5.07.1936, the appellants herein purchased 2 acre 15 guntas and 3 acre 8 guntas of land respectively, out of the said plot. Despite the fact that Nanjapa purchased a portion of the said plot, the appellants allegedly took over possession of the entire 5 acre 23 guntas of land after the aforementioned purchases. However, when allegedly their possession was sought to be disturbed by the respondent in the year 1988, they filed a suit in the court of Additional City Civil Judge, Bangalore which was marked as O.S. No. 287 of 1989. In the said suit, they clamed title on the basis of adverse possession stating: " The plaintiffs submit that in any event the plaintiffs have perfected their title by adverse possession as the plaintiffs have been in open, continuous uninterrupted and hostile possession of the plaint schedule land, adversely to the interest of any other person including the defendant for the past over fifty years exercising absolute rights of ownership in respect of the plaint schedule land " Defendants Respondents in their written statement denied and disputed the aforementioned assertion of the plaintiffs and pleaded their own right, title and interest as also possession in or over the said 1 acre 21 guntas of land. The learned Trial Judge decreed the suit inter alia holding that the plaintiffs appellants have acquired title by adverse possession as they have been in possession of the lands in question for a period of more than 50 years. On an appeal having been preferred there against by the respondents before the High Court, the said judgment of the Trial Court was reversed holding: (i) " The important averments of adverse possession are two fold. One is to recognize the title of the person against whom adverse possession is claimed. Another is to enjoy the property adverse to the title holder's interest after making him known that such enjoyment is against his own interest. These two averments are basically absent in this case both in the pleadings as well as in the evidence " (ii) "The finding of the Court below that the possession of the plaintiffs' become adverse to the defendants between 1934-1936 is again an error apparent on the face of the record. As it is now clarified before me by the learned counsel for the appellants that the plaintiffs' claim in respect of the other land of the defendants is based on the subsequent sale deed dated 5.7.1936. It is settled law that mere possession even if it is true for any number of years will not cloth the person in enjoyment with the title by adverse possession. As indicated supra, the important ingredients of adverse possession should have been satisfied." SUBMISSIONS Mr. P. Krishnamoorthy, learned senior counsel appearing on behalf of the appellants, submitted that the High Court committed a manifest error in arriving at the aforementioned conclusion as it failed to take into consideration the principle that acknowledgement of the owner's title was not sine qua non for claiming title by prescription. Reliance in this behalf has been placed on Secy. of State v. Debendra Lal Khan [AIR 1934 PC 23] and State of West Bengal v. The Dalhousie Institute Society [AIR 1970 SC 1798]. The learned counsel appearing on behalf of the respondents, on the other hand, supported the impugned judgment. CHARACTERIZING ADVERSE POSSESSION Adverse possession in one sense is based on the theory or presumption that the owner has abandoned the property to the adverse possessoror on the acquiescence of the owner to the hostile acts and claims of the person in possession. It follows that sound qualities of a typical adverse possession lie in it being open, continuous and hostile. [See Downing v. Bird, 100 So. 2d 57 (Fla. 1958), Arkansas Commemorative Commission v. City of Little Rock, 227 Ark. 1085, 303 S.W.2d 569 (1957); Monnot v. Murphy, 207 N.Y. 240, 100 N.E. 742 (1913); City of Rock Springs v. Sturm, 39 Wyo. 494, 273 P. 908, 97 A.L.R. 1 (1929).] Efficacy of adverse possession law in most jurisdictions depend on strong limitation statutes by operation of which right to access the court expires through effluxion of time. As against rights of the paper-owner, in the context of adverse possession, there evolves a set of competing rights in favour of the adverse possessor who has, for a long period of time, cared for the land, developed it, as against the owner of the property who has ignored the property. Modern statutes of limitation operate, as a rule, not only to cut off one's right to bring an action for the recovery of property that has been in the adverse possession of another for a specified time, but also to vest the possessor with title. The intention of such statutes is not to punish one who neglects to assert rights, but to protect those who have maintained the possession of property for the time specified by the statute under claim of right or color of title. (See American Jurisprudence, Vol. 3, 2d, Page 81). It is important to keep in mind while studying the American notion of Adverse Possession, especially in the backdrop of Limitation Statutes, that the intention to dispossess can not be given a complete go by. Simple application of Limitation shall not be enough by itself for the success of an adverse possession claim. To understand the true nature of adverse possession, Fairweather v St Marylebone Property Co [1962] 2 WLR 1020, [1962] 2 All ER 288 can be considered where House of Lords referring to Taylor v. Twinberrow [1930] 2 K.B. 16, termed adverse possession as a negative and consequential right effected only because somebody else's positive right to access the court is barred by operation of law: "In my opinion this principle has been settled law since the date of that decision. It formed the basis of the later decision of the Divisional Count in Taylor v. Twinberrow [1930] 2 K.B. 16, in which it was most clearly explained by Scrutton, L.J. that it was a misunderstanding of the legal effect of 12 years adverse possession under the Limitation Acts to treat it as if it gave a title whereas its effect is " merely negative " and, where the possession had been against a tenant, its only operation was to bar his right to claim against the man in possession (see loc. cit. p. 23). I think that this statement needs only one qualification: a squatter does in the end get a title by his possession and the indirect operation of the Act and he can convey a fee simple. If this principle is applied, as it must be, to the Appellant's situation, it appears that the adverse possession completed in 1932 against the lessee of No. 315 did not transfer to him either the lessee's' term or his rights against or has obligations to the landlord who held the reversion. The appellant claims to be entitled to keep the landlord at bay until the expiration of the term by effluxion of time in 1992: but, if he is, it cannot be because he is the transferee or holder of the term which was granted to the lessee. He is in possession by his own right, so far as it is a right: and it is a right so far as the statutes of limitation which govern the matter prescribe both when the rights to dispossess him are to be treated as accruing and when, having accrued, they are thereafter to be treated as barred. In other words, a squatter has as much protection as but no more protection than the statutes allow: but he has not the title or estate of the owner or owners whom he has dispossessed nor has he in any relevant sense an estate "commensurate with" the estate of the dispossessed. All that this misleading phrase can mean is that, since his possession only defeats the rights of those to whom it has been adverse, there may be rights not prescribed against, such, for instance, as equitable easements, which axe no less enforceable against him in respect of the land than they would have been against the owners he has dispossessed." Also see Privy Council's decision in Chung Ping Kwan and Others v. Lam Island Development Company Limited (Hong Kong) [(1997) AC 38] in this regard. Therefore, to assess a claim of adverse possession, two-pronged enquiry is required: 1. Application of limitation provision thereby jurisprudentially "willful neglect" element on part of the owner established. Successful application in this regard distances the title of the land from the paper-owner. 2. Specific Positive intention to dispossess on the part of the adverse possessor effectively shifts the title already distanced from the paper owner, to the adverse possessor. Right thereby accrues in favour of adverse possessor as intent to dispossess is an express statement of urgency and intention in the upkeep of the property. It is interesting to see the development of adverse possession law in the backdrop of the status of Right to Property in the 21st Century. The aspect of stronger Property Rights Regime in general, coupled with efficient legal regimes furthering the Rule of Law argument, has redefined the thresholds in adverse possession law not just in India but also by the Strasbourg Court. Growth of Human Rights jurisprudence in recent times has also palpably affected the developments in this regard. . NEW CONSIDERATION IN ADVERSE POSSESSION LAW In that context it is relevant to refer to JA Pye (Oxford) Ltd v. United Kingdom [2005] 49 ERG 90, [2005] ECHR 921 wherein the European Court of Human Rights while referring to the Court of Appeal judgment ([2001]EWCA Civ 117, [2001]Ch 804) made the following reference: "Lord Justice Keene took as his starting point that limitation periods were in principle not incompatible with the Convention and that the process whereby a person would be barred from enforcing rights by the passage of time was clearly acknowledged by the Convention (Convention for the Protection of Human Rights and Fundamental Freedoms). This position obtained, in his view, even though limitation periods both limited the right of access to the courts and in some circumstances had the effect of depriving persons of property rights, whether real or personal, or of damages: there was thus nothing inherently incompatible as between the 1980 Act and Article 1 of the Protocol." This brings us to the issue of mental element in adverse possession cases-intention. 1. Positive Intention The aspect of positive intention is weakened in this case by the sale deeds dated 11.04.1934 and 5.07.1936. Intention is a mental element which is proved and disproved through positive acts. Existence of some events can go a long way to weaken the presumption of intention to dispossess which might have painstakingly grown out of long possession which otherwise would have sufficed in a standard adverse possession case.. The fact of possession is important in more than one ways: firstly, due compliance on this count attracts limitation act and it also assists the court to unearth as the intention to dispossess. At this juncture, it would be in the fitness of circumstances to discuss intention to dispossess vis-`-vis intention to possess. This distinction can be marked very distinctively in the present circumstances. Importantly, intention to possess can not be substituted for intention to dispossess which is essential to prove adverse possession. The factum of possession in the instant case only goes on to objectively indicate intention to possess the land. As also has been noted by the High Court, if the appellant has purchased the land without the knowledge of earlier sale, then in that case the intention element is not of the variety and degree which is required for adverse possession to materialize. The High Court observed: "It is seen from the pleadings as well in evidence that the plaintiff came to know about the right of the defendants', only when disturbances were sought to be made to his possession." In similar circumstances, in the case of Thakur Kishan Singh (dead) v. Arvind Kumar [(1994) 6 SCC 591] this court held: "As regards adverse possession, it was not disputed even by the trial court that the appellant entered into possession over the land in dispute under a licence from the respondent for purposes of brick-kiln. The possession thus initially being permissive, the burden was heavy on the appellant to establish that it became adverse. A possession of a co-owner or of a licencee or of an agent or a permissive possession to become adverse must be established by cogent and convincing evidence to show hostile animus and possession adverse to the knowledge of real owner. Mere possession for howsoever length of time does not result in converting the permissible possession into adverse possession. Apart from it, the Appellate Court has gone into detail and after considering the evidence on record found it as a fact that the possession of the appellant was not adverse." The present case is one of the few ones where even an unusually long undisturbed possession does not go on to prove the intention of the adverse possessor. This is a rare circumstance, which Clarke LJ in Lambeth London Borough Council v Blackburn (2001) 82 P & CR 494, 504 refers to: "I would not for my part think it appropriate to strain to hold that a trespasser who had established factual possession of the property for the necessary 12 years did not have the animus possidendi identified in the cases. I express that view for two reasons. The first is that the requirement that there be a sufficient manifestation of the intention provides protection for landowners and the second is that once it is held that the trespasser has factual possession it will very often be the case that he can establish the manifested intention. Indeed it is difficult to find a case in which there has been a clear finding of factual possession in which the claim to adverse possession has failed for lack of intention." On intention, The Powell v. Macfarlane (1977) 38 P & CR (Property, Planning & Compensation Reports) 452 472 is quite illustrative and categorical, holding in the following terms: "If the law is to attribute possession of land to a person who can establish no paper title to possession, he must be shown to have both factual possession and the requisite intention to possess ('animus possidendi')." . If his acts are open to more than one interpretation and he has not made it perfectly plain to the world at large by his actions or words that he has intended to exclude the owner as best he can, the courts will treat him as not having had the requisite animus possidendi and consequently as not having dispossessed the owner. In my judgment it is consistent with principle as well as authority that a person who originally entered another's land as a trespasser, but later seeks to show that he has dispossessed the owner, should be required to adduce compelling evidence that he had the requisite animus possidendi in any case where his use of the land was equivocal, in the sense that it did not necessarily, by itself, betoken an intention on his part to claim the land as his own and exclude the true owner. What is really meant, in my judgment, is that the animus possidendi involves the intention, in one's own name and on one's own behalf, to exclude the world at large, including the owner with the paper title if he be not himself the possessor, so far as is reasonably practicable and so far as the processes of the law will allow." Thus, there must be intention to dispossess. And it needs to be open and hostile enough to bring the same to the knowledge and plaintiff has an opportunity to object. After all adverse possession right is not a substantive right but a result of the waiving (willful) or omission (negligent or otherwise) of right to defend or care for the integrity of property on the part of the paper owner of the land. Adverse possession statutes, like other statutes of limitation, rest on a public policy that do not promote litigation and aims at the repose of conditions that the parties have suffered to remain unquestioned long enough to indicate their acquiescence. While dealing with the aspect of intention in the Adverse possession law, it is important to understand its nuances from varied angles. Intention implies knowledge on the part of adverse possessor. The case of Saroop Singh v. Banto and Others [(2005) 8 SCC 330] in that context held: "29. In terms of Article 65 the starting point of limitation does not commence from the date when the right of ownership arises to the plaintiff but commences from the date the defendants possession becomes adverse. (See Vasantiben Prahladji Nayak v. Somnath Muljibhai Nayak) 30. Animus possidendi is one of the ingredients of adverse possession. Unless the person possessing the land has a requisite animus the period for prescription does not commence. As in the instant case, the appellant categorically states that his possession is not adverse as that of true owner, the logical corollary is that he did not have the requisite animus. (See Mohd. Mohd. Ali v. Jagadish Kalita, SCC para 21.)" A peaceful, open and continuous possession as engraved in the maxim nec vi, nec clam, nec precario has been noticed by this Court in Karnataka Board of Wakf v. Government of India and Others [(2004) 10 SCC 779] in the following terms: " Physical fact of exclusive possession and the animus possidendi to hold as owner in exclusion to the actual owner are the most important factors that are to be accounted in cases of this nature. Plea of adverse possession is not a pure question of law but a blended one of fact and law. Therefore, a person who claims adverse possession should show: ( a) on what date he came into possession, (b) what was the nature of his possession, (c) whether the factum of possession was known to the other party, (d) how long his possession has continued, and ( e) his possession was open and undisturbed. A person pleading adverse possession has no equities in his favour. Since he is trying to defeat the rights of the true owner, it is for him to clearly plead and establish all facts necessary to establish his adverse possession " It is important to appreciate the question of intention as it would have appeared to the paper-owner. The issue is that intention of the adverse user gets communicated to the paper owner of the property. This is where the law gives importance to hostility and openness as pertinent qualities of manner of possession. It follows that the possession of the adverse possessor must be hostile enough to give rise to a reasonable notice and opportunity to the paper owner. In Narne Rama Murthy v. Ravula Somasundaram and Others [(2005) 6 SCC 614], this Court held: "However, in cases where the question of limitation is a mixed question of fact and law and the suit does not appear to be barred by limitation on the face of it, then the facts necessary to prove limitation must be pleaded, an issue raised and then proved. In this case the question of limitation is intricately linked with the question whether the agreement to sell was entered into on behalf of all and whether possession was on behalf of all. It is also linked with the plea of adverse possession. Once on facts it has been found that the purchase was on behalf of all and that the possession was on behalf of all, then, in the absence of any open, hostile and overt act, there can be no adverse possession and the suit would also not be barred by limitation. The only hostile act which could be shown was the advertisement issued in 1989. The suit filed almost immediately thereafter." The test is, as has been held in the case of R. v. Oxfordshire County Council and Others, Ex Parte Sunningwell Parish Council [1999] 3 ALL ER 385; [1999] 3 WLR 160: Bright v. Walker (1834) 1 Cr. M. & R. 211, 219, "openly and in the manner that a person rightfully entitled would have used it. . ." The presumption arises, as Fry J. said of prescription generally in Dalton v. Angus (1881) 6 App.Cas. 740, 773, from acquiescence. The case concerned interpretation of section 22(1) of the Commons Registration Act 1965. Section 22(1) defined "town or village green" as including " land on which the inhabitants of any locality have indulged in [lawful] sports and pastimes as of right for not less than 20 years." It was observed that the inhabitants' use of the land for sports and pastimes did not constitute the use "as of right". The belief that they had the right to do so was found to be lacking. The House held that they did not have to have a personal belief in their right to use the land. The court observed: "the words 'as of right' import the absence of any of the three characteristics of compulsion, secrecy or licence 'nec vi, nec clam, nec precario', phraseology borrowed from the law of easements." Later in the case of Beresford, R (on the application of) v. City of Sunderland [2003] 3 WLR 1306, [2004] 1 All ER 160 same test was referred to. Thus the test of nec vi, nec clam, nec precario i.e., "not by force, nor stealth, nor the license of the owner" has been an established notion in law relating to the whole range of similarly situated concepts such as easement, prescription, public dedication, limitation and adverse possession. In Karnataka Wakf Board (Supra), the law was stated, thus: "In the eye of law, an owner would be deemed to be in possession of a property so long as there is no intrusion. Non-use of the property by the owner even for a long time won't affect his title. But the position will be altered when another person takes possession of the property and asserts a right over it. Adverse possession is a hostile possession by clearly asserting hostile title in denial of the title of true owner. It is a well- settled principle that a party claiming adverse possession must prove that his possession is 'nec vi, nec clam, nec precario', that is, peaceful, open and continuous. The possession must be adequate in continuity, in publicity and in extent to show that their possession is adverse to the true owner. It must start with a wrongful disposition of the rightful owner and be actual, visible, exclusive, hostile and continued over the statutory period. (See : S M Karim v. Bibi Sakinal AIR 1964 SC 1254, Parsinni v. Sukhi ( 1993 ) 4 SCC 375 and D N Venkatarayappa v. State of Karnataka (1997) 7 SCC 567.) Physical fact of exclusive possession and the animus possidendi to hold as owner in exclusion to the actual owner are the most important factors that are to be accounted in cases of this nature. Plea of adverse possession is not a pure question of law but a blended one of fact and law. Therefore, a person who claims adverse possession should show (a) on what date he came into possession, (b) what was the nature of his possession, (c) whether the factum of possession was known to the other party, (d) how long his possession has continued, and (e) his possession was open and undisturbed. A person pleading adverse possession has no equities in his favour. Since he is trying to defeat the rights of true owner, it is for him to clearly plead and establish all facts necessary to establish his adverse possession." 2. Inquiry into the particulars of Adverse Possession Inquiry into the starting point of adverse possession i.e. dates as to when the paper owner got dispossessed is an important aspect to be considered. In the instant case the starting point of adverse possession and Other facts such as the manner in which the possession operationalized, nature of possession: whether open, continuous, uninterrupted or hostile possession - have not been disclosed. An observation has been made in this regard in S.M. Karim v. Mst. Bibi Sakina [AIR 1964 SC 1254]: "Adverse possession must be adequate in continuity, in publicity and extent and a plea is required at the least to show when possession becomes adverse so that the starting point of limitation against the party affected can be found. There is no evidence here when possession became adverse, if it at all did, and a mere suggestion in the relief clause that there was an uninterrupted possession for "several 12 years" or that the plaintiff had acquired "an absolute title" was not enough to raise such a plea. Long possession is not necessarily adverse possession and the prayer clause is not a substitute for a plea." Also mention as to the real owner of the property must be specifically made in an adverse possession claim. In Karnataka Wakf Board (Supra), it is stated: "Plaintiff, filing a title suit should be very clear about the origin of title over the property. He must specifically plead it. In P Periasami v. P Periathambi ( 1995 ) 6 SCC 523 this Court ruled that - "Whenever the plea of adverse possession is projected, inherent in the plea is that someone else was the owner of the property." The pleas on title and adverse possession are mutually inconsistent and the latter does not begin to operate until the former is renounced. Dealing with Mohan Lal v. Mirza Abdul Gaffar ( 1996 ) 1 SCC 639 that is similar to the case in hand, this Court held: "As regards the first plea, it is inconsistent with the second plea. Having come into possession under the agreement, he must disclaim his right there under and plead and prove assertion of his independent hostile adverse possession to the knowledge of the transferor or his successor in title or interest and that the latter had acquiesced to his illegal possession during the entire period of 12 years, i.e., up to completing the period his title by prescription nec vi, nec clam, nec precario. Since the appellant's claim is founded on Section 53-A, it goes without saying that he admits by implication that he came into possession of land lawfully under the agreement and continued to remain in possession till date of the suit. Thereby the plea of adverse possession is not available to the appellant."" 3. New Paradigm to Limitation Act The law in this behalf has undergone a change. In terms of Articles 142 and 144 of the Limitation Act, 1908, the burden of proof was on the plaintiff to show within 12 years from the date of institution of the suit that he had title and possession of the land, whereas in terms of Articles 64 and 65 of the Limitation Act, 1963, the legal position has underwent complete change insofar as the onus is concerned: once a party proves its title, the onus of proof would be on the other party to prove claims of title by adverse possession. The ingredients of adverse possession have succinctly been stated by this Court in S.M. Karim v. Mst. Bibi Sakina [AIR 1964 SC 1254] in the following terms: " Adverse possession must be adequate in continuity, in publicity and extent and a plea is required at the least to show when possession becomes adverse so that the starting point of limitation against the party affected can be found " [See also M. Durai v. Madhu and Others 2007 (2) SCALE 309] The aforementioned principle has been reiterated by this Court in Saroop Singh v. Banto and Others [(2005) 8 SCC 330] stating: "29. In terms of Article 65 the starting point of limitation does not commence from the date when the right of ownership arises to the plaintiff but commences from the date the defendants possession becomes adverse. (See Vasantiben Prahladji Nayak v. Somnath Muljibhai Nayak) 30. Animus possidendi is one of the ingredients of adverse possession. Unless the person possessing the land has a requisite animus the period for prescription does not commence. As in the instant case, the appellant categorically states that his possession is not adverse as that of true owner, the logical corollary is that he did not have the requisite animus. (See Mohd. Mohd. Ali v. Jagadish Kalita, SCC para 21.)" In Mohammadbhai Kasambhai Sheikh and Others v. Abdulla Kasambhai Sheikh [(2004) 13 SCC 385], this Court held: " But as has been held in Mahomedally Tyebally v. Safiabai the heirs of Mohammedans (which the parties before us are) succeed to the estate in specific shares as tenants-in-common and a suit by an heir for his/her share was governed, as regards immovable property, by Article 144 of the Limitation Act, 1908. Article 144 of the Limitation Act, 1908 has been materially re-enacted as Article 65 of the Limitation Act, 1963 and provides that the suit for possession of immovable property or any interest therein based on title must be filed within a period of 12 years from the date when the possession of the defendant becomes adverse to the plaintiff. Therefore, unless the defendant raises the defence of adverse possession to a claim for a share by an heir to ancestral property, he cannot also raise an issue relating to the limitation of the plaintiffs claim " The question has been considered at some length recently in T. Anjanappa and Others v. Somalingappa and Another [(2006) 7 SCC 570], wherein it was opined : "The High Court has erred in holding that even if the defendants claim adverse possession, they do not have to prove who is the true owner and even if they had believed that the Government was the true owner and not the plaintiffs, the same was inconsequential. Obviously, the requirements of proving adverse possession have not been established. If the defendants are not sure who is the true owner the question of their being in hostile possession and the question of denying title of the true owner do not arise. Above being the position the High Court's judgment is clearly unsustainable " [See also Des Raj and Ors. v. Bhagat Ram (Dead) By LRs. and Ors., 2007 (3) SCALE 371; Govindammal v. R. Perumal Chettiar & Ors., JT 2006 (10) SC 121 : (2006) 11 SCC 600] CONTENTIONS OF PARTIES The decision of the Judicial Committee in Debendra Lal Khan (supra), whereupon reliance has been placed by Mr. Krishnamoorthy, does not militate against the aforementioned propositions of law. The question which arose for consideration therein was as to whether the plaintiff had acquired right or title to the fisheries by adverse possession in the portion of river Cossye. In the aforementioned situation, it was held that the Limitation Act is indulgent to the Crown in one respect only, namely, in requiring a much longer period of adverse possession than in the case of a subject; otherwise there is no discrimination between the Crown and the subject as regards the requisites of adverse possession. The said decision is not of much assistance in this case. In The Dalhousie Institute Society (supra), this Court found as of fact that the respondents were in open, continuous and uninterrupted possession and enjoyment of site for over 60 years. It was in that situation, the title of the defendant, in that behalf, was accepted. RIGHT TO PROPERTY AS HUMAN RIGHT There is another aspect of the matter, which cannot be lost sight of. The right of property is now considered to be not only a constitutional or statutory right but also a human right. Declaration of the Rights of Man and of the Citizen, 1789 enunciates right to property under Article 17 : "since the right to property is inviolable and sacred, no-one may be deprived thereof, unless public necessity, legally ascertained, obviously requires it and just and prior indemnity has been paid". Moreover, Universal Declaration of Human Rights, 1948 under section 17(i) and 17(ii) also recognizes right to property : "17 (i) Everyone has the right to own property alone as well as in association with others. (ii) No-one shall be arbitrarily deprived of his property." Human rights have been historically considered in the realm of individual rights such as, right to health, right to livelihood, right to shelter and employment etc. but now human rights are gaining a multifaceted dimension. Right to property is also considered very much a part of the new dimension. Therefore, even claim of adverse possession has to be read in that context. The activist approach of the English Courts is quite visible from the judgement of Beaulane Properties Ltd. v. Palmer [2005 (3) WLR 554 : 2005 EWHC 817 (Ch.)] and JA Pye (Oxford) Ltd v. United Kingdom [2005] ECHR 921 [2005] 49 ERG 90, [2005] ECHR 921], The court herein tried to read the Human Rights position in the context of adverse possession. But what is commendable is that the dimensions of human rights has widened so much that now property dispute issues are also being raised within the contours of human rights. With the expanding jurisprudence of the European Court of Human Rights, the Court has taken an unkind view to the concept of adverse possession in the recent judgment of J.A. Pye (Oxford) Ltd v. the United Kingdom [2005] ECHR 921, which concerned the loss of ownership of land by virtue of adverse possession. In the instant case the applicant company was the registered owner of a plot of 23 hectares of agricultural land. The owners of a property adjacent to the land, Mr. and Mrs. Graham ("the Grahams") occupied the land under a grazing agreement. After a brief exchange of documents in December 1983 a chartered surveyor acting for the applicants wrote to the Grahams noting that the grazing agreement was about to expire and requiring them to vacate the land. In essence, from September 1984 onwards until 1999 the Grahams continued to use the whole of the disputed land for farming without the permission of the applicants. In 1997, Mr Graham moved the Local Land Registry against the applicant on the ground that he had obtained title by adverse possession. The applicant companies responded to the motion and importantly also issued further proceedings seeking possession of the disputed land. The Grahams challenged the applicant companies' claims under the Limitation Act 1980 ("the 1980 Act") which provides that a person cannot bring an action to recover any land after the expiration of 12 years of adverse possession by another. They also relied on the Land Registration Act 1925, which applied at the relevant time and which provided that, after the expiry of the 12-year period, the registered proprietor was deemed to hold the land in trust for the squatter. It is important to quote here the judgment pronounced in favour of the Grahams ([2000]Ch 676). The court held in favour of the Grahams but went on to observe the irony in law of adverse possession. According to the court, law which provides to oust an owner on the basis of inaction of 12 years is "illogical and disproportionate". The effect of such law would "seem draconian to the owner" and "a windfall for the squatter". The fact that just because "the owner had taken no step to evict a squatter for 12 years, the owner should lose 25 hectares of land to the squatter with no compensation whatsoever" would be disproportionate. The applicant companies appealed and the Court of Appeal reversed the High Court decision. The Grahams then appealed to the House of Lords, which, allowed their appeal and restored the order of the High Court. In J A Pye (Oxford) Ltd & Ors v Graham & Anor [2002] 3 All ER 865 House of Lords observed that the Grahams had possession of the land in the ordinary sense of the word, and therefore the applicant companies had been dispossessed of it within the meaning of the 1980 Act. There was no inconsistency between a squatter being willing to pay the paper owner if asked and his being in possession in the meantime. It will be pertinent to note in this regard Lord Bingham (agreeing with Lord Browne-Wilkinson) in the course of his judgment: "[The Grahams] sought rights to graze or cut grass on the land after the summer of 1984, and were quite prepared to pay. When Pye failed to respond they did what any other farmer in their position would have done: they continued to farm the land. They were not at fault. But the result of Pye's inaction was that they enjoyed the full use of the land without payment for 12 years. As if that were not gain enough, they are then rewarded by obtaining title to this considerable area of valuable land without any obligation to compensate the former owner in any way at all. In the case of unregistered land, and in the days before registration became the norm, such a result could no doubt be justified as avoiding protracted uncertainty where the title to land lay. But where land is registered it is difficult to see any justification for a legal rule which compels such an apparently unjust result, and even harder to see why the party gaining title should not be required to pay some compensation at least to the party losing it. It is reassuring to learn that the Land Registration Act 2002 has addressed the risk that a registered owner may lose his title through inadvertence. But the main provisions of that Act have not yet been brought into effect, and even if they had it would not assist Pye, whose title had been lost before the passing of the Act. While I am satisfied that the appeal must be allowed for the reasons given by my noble and learned friend, this is a conclusion which I (like the judge [Neuberger J]...) 'arrive at with no enthusiasm'." Thereafter the applicants moved the European Commission of Human Rights (ECHR) alleging that the United Kingdom law on adverse possession, by which they lost land to a neighbour, operated in violation of Article 1 of Protocol No. 1 to Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention"). It was contended by the applicants that they had been deprived of their land by the operation of the domestic law on adverse possession which is in contravention with Article 1 of Protocol No. 1 to Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention"), which reads as under: "Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties." The European Council of Human Rights importantly laid down three pronged test to judge the interference of government with the right of "peaceful enjoyment of property". While referring to Beyeler v. Italy [GC], no. 33202/96, '' 108-14, ECHR 2000-I, it was held that the "interference" should comply with the principle of lawfulness pursue a legitimate aim (public interest) by means reasonably proportionate to the aim sought to be realized. In fine the court observed: "The question nevertheless remains whether, even having regard to the lack of care and inadvertence on the part of the applicants and their advisers, the deprivation of their title to the registered land and the transfer of beneficial ownership to those in unauthorised possession struck a fair balance with any legitimate public interest served. In these circumstances, the Court concludes that the application of the provisions of the 1925 and 1980 Acts to deprive the applicant companies of their title to the registered land imposed on them an individual and excessive burden and upset the fair balance between the demands of the public interest on the one hand and the applicants' right to the peaceful enjoyment of their possessions on the other. There has therefore been a violation of Article 1 of Protocol No. 1." The question of the application of Article 41 was referred for the Grand Chamber Hearing of the ECHR. This case sets the field of Adverse Possession and its interface with the right to peaceful enjoyment in all its complexity. Therefore it will have to be kept in mind the Courts around the world are taking an unkind view toward statutes of limitation overriding property rights. THE PRESENT CASE It is to be borne in mind that the respondent had already purchased 1 acre 21 guntas out of the 5 acres 25 guntas under a duly registered deed dated 1.9.1933. Appellant bought the entire chunk of 5 acres 23 guntas subsequent to the respondent's transaction. The validity of such sale is not the question in the instant case but the transaction relating to 1 acre 23 Guntas remains an important surrounding circumstance to assess the nature of appellant's possession. The question is whether it is a case of mistaken possession ignoramus of the previous sale or adverse possession having the mental element in the requisite degree to dispossess. Also much depends on the answer to the query regarding the starting point of adverse possession: when can the possession be considered to have become adverse? In the facts and circumstances of this case, the possession of appellant was effected through the sale deeds, dated 11.04.1934 and 5.07.1936. Therefore, the alleged fact of adverse possession bears a pronounced backdrop of 1933 sale deed passing 1 acre 21 Guntas to the respondent. . Are we to say that it is a sale with doubtful antecedents (1 acre 23 Guntas) sought to be perfected or completed through adverse possession? But that aspect of the matter is not under consideration herein. As has already been mentioned, adverse possession is a right which comes into play not just because someone loses his right to reclaim the property out of continuous and willful neglect but also on account of possessor's positive intent to dispossess. Therefore it is important to take into account before stripping somebody of his lawful title, whether there is an adverse possessor worthy and exhibiting more urgent and genuine desire to dispossess and step into the shoes of the paper-owner of the property. This test forms the basis of decision in the instant case. The argument for a more intrusive inquiry for adverse possession must not be taken to be against the law of limitations. Limitation statutes as statutes of repose have utility and convenience as their purpose. Nevertheless, there has been change on this front as well which have been noticed by us heretobefore. For the reasons aforementioned, there is no merit in this appeal which is dismissed accordingly with costs. Counsel's fee assessed at Rs. 25,000/-.