It is well settled principle of law that where a relief is claimed in respect of compensation for wrong to, immoveable property situated within jurisdiction of different Courts, the suit may be instituted in any court within the local limits of whose jurisdiction any portion of the property is situated.

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION

NEW DELHI

                        

(1)                         REVISION PETITION NO. 3117 OF 2012

(From the order dated 28-05-2012 in Appeal No. 964 to 998/2011

  of the State Commission, Haryana)

Cosmos Infra Engineering India

Ltd. (Previously known as Cosmos

Builders & Promoters Ltd.)                                               … Petitioner (s)       

      Versus

Sameer Saksena                                                     … Respondent (s)

 

(2)                    REVISION PETITION NO. 3247 OF 2012

WITH

I.A./1/2012(For stay)

(From the order dated 28-05-2012 in Appeal No. 964 to 998/2011

  of the State Commission, Haryana)

Cosmos Infra Engineering India

Ltd. (Previously known as Cosmos                        

Builders & Promoters Ltd.)                                     … Petitioner (s)       

      Versus

Shalu Sharma & Anr.                                               … Respondent (s)

(3)                       REVISION PETITION NO. 3248 OF 2012

WITH

I.A./1/2012(For stay)

(From the order dated 28-05-2012 in Appeal No. 964 to 998/2011

  of the State Commission, Haryana)

Cosmos Infra Engineering India

Ltd. (Previously known as Cosmos

Builders & Promoters Ltd.)                                        … Petitioner (s)       

      Versus

Bimla Kapoor & Anr.                                                  … Respondent (s)

(4)                      REVISION PETITION NO. 3249 OF 2012

WITH

I.A./1/2012(For stay)

(From the order dated 28-05-2012 in Appeal No. 964 to 998/2011

  of the State Commission, Haryana)

Cosmos Infra Engineering India

Ltd. (Previously known as Cosmos

Builders & Promoters Ltd.)                                               … Petitioner (s)       

      Versus

Kuldeep Sharma                                                           … Respondent (s)

- 2 -

 

(5)                   REVISION PETITION NO. 3250 OF 2012

WITH

I.A./1/2012(For stay)

(From the order dated 28-05-2012 in Appeal No. 964 to 998/2011

  of the State Commission, Haryana)

Cosmos Infra Engineering India

Ltd. (Previously known as Cosmos

Builders & Promoters Ltd.)                                            … Petitioner (s)       

      Versus

Shampa Chakraborty & Anr.                                         … Respondent (s)

(6)                    REVISION PETITION NO. 3251 OF 2012

WITH

I.A./1/2012(For stay)

(From the order dated 28-05-2012 in Appeal No. 964 to 998/2011

  of the State Commission, Haryana)

Cosmos Infra Engineering India

Ltd. (Previously known as Cosmos

Builders & Promoters Ltd.)                                               … Petitioner (s)       

      Versus

Sonu Jain & Anr.                                                           … Respondent (s)

(7)                   REVISION PETITION NO. 3252 OF 2012

WITH

I.A./1/2012(For stay)

(From the order dated 28-05-2012 in Appeal No. 964 to 998/2011

  of the State Commission, Haryana)

Cosmos Infra Engineering India

Ltd. (Previously known as Cosmos

Builders & Promoters Ltd.)                                               … Petitioner (s)       

      Versus

Sarita Arora & Anr.                                                      … Respondent (s)

(8)                    REVISION PETITION NO. 3253 OF 2012

WITH

I.A./1/2012(For stay)

(From the order dated 28-05-2012 in Appeal No. 964 to 998/2011

  of the State Commission, Haryana)

Cosmos Infra Engineering India

Ltd. (Previously known as Cosmos

Builders & Promoters Ltd.)                                     … Petitioner (s)       

      Versus

Amitabh Sehdev                                                  … Respondent (s)

(9)                    REVISION PETITION NO. 3254 OF 2012

WITH

I.A./1/2012(For stay)

(From the order dated 28-05-2012 in Appeal No. 964 to 998/2011

  of the State Commission, Haryana)

Cosmos Infra Engineering India

Ltd. (Previously known as Cosmos

Builders & Promoters Ltd.)                                     … Petitioner (s)       

      Versus

Alka Vishnu                                                         … Respondent (s)

BEFORE:

HON’BLE MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER

         

For the Petitioner (s)                 :         Ms. Vandana Bhatnagar, Advocate

Pronounced on:  12^th  December, 2012

ORDER

Being aggrieved by common order dated 28.5.2012, passed by Haryana State Consumer Disputes Redressal Commission, Panchkula (for short, ‘State Commission’),petitioner/opposite party has filed these revision petitions.

2.       Brief facts are that respondents/complainants booked respective flats in Cosmos Executive Floors, Palam Vihar, Gurgaon.  Respondents executed agreement dated 2^nd June 2005, with the petitioner.  The construction was to be done as per terms, conditions and   specification  as per agreement.  The possession was to be delivered in September, 2006. However, permissive possession was given to the respondents. After taking possession respondents found the changed site plan as against the plan supplied. Moreover, flats were found to be of sub standard material and not according to the  specifications.   There were several deficiencies and flaws in the flats which caused great harassment, mental agony and financial loss to the respondents. It is alleged that petitioner has adopted unfair trade practice.  Accordingly, respondents claimed compensation and damages for harassment, mental agony etc. and penalty for delayed possession.   

3.       Petitioner failed to file any reply before the District Consumer Disputes Reddresal Forum, Gurgaon (for short, ‘District Forum’).  Accordingly, defence of the petitioner  wasstruck off by the District Forum on 14.9.2009.

4.       After hearing the parties and after appraising the material on record, District Forum, vide order dated 25.5.2011,  dismissed the complaints being not maintainable on the ground of territorial jurisdiction. District Forum gave liberty to the respondents to fresh complaint in a Competent Court of Jurisdiction.

5.       Respondents challenged the order of District Forum before the State Commission.  Vide its order dated 26.7.2011, State Commission  set aside the order of the District Forum and remanded back the case to the District Forum to re-decide the same after following due procedure in accordance with law.

6.       Petitioner aggrieved by order dated 26.7.2011,  filed (Revision Petitions No.3196-3230 of 2011) before this Commission.

7.       Since order dated 26.7.2011 was passed by the State Commission without giving any notice and without hearing the petitioner, this Commission vide its order dated 5.3.2012 set aside that order and accepted the revisions of the petitioner.  The matter was remanded to the State Commission to decide it afresh, in accordance with law,  after giving opportunities to both the parties.

8.       State Commission after hearing the learned counsel for the parties, vide impugned order set aside the order of the District Forum.  It remitted back the cases to the District Forum, to re-decide it in accordance with law.

9.       Hence, the present revision.

10.     I have heard the learned counsel for the petitioner and gone through the record.

11.     It is contended by learned counsel for the petitioner that once agreement duly signed as per Clause No.33 of the Floor Buyer’s Agreement, has been executed between the parties, then the jurisdiction lies with  Delhi Courts only. Therefore, complaints filed by the respondents before the District Forum, Gurgaon are not maintainable. Further, the registered office of the petitioner is located at Delhi and petitioner works at New Delhi only.  Moreover, petitioner is not having any office or branch office located at Haryana.  Hence, jurisdiction could be conferred only at Delhi Courts.

12.     The  basic question which arises for consideration as to whether Delhi Forum alone has jurisdiction or respondents could have sought the jurisdiction of District Forum, Gurgaon, also.

13.     Clause No.33 of the Floor Buyer’s Agreement read as under;

“33.  That all disputes or differences arising between the Seller and the Purchaser in respect of any matter concerning this Flat Buyers Agreement shall be settled amicably between the parties failing which the same shall be referred for Arbitration to be adjudicated by a sole arbitrator, to be appointed by the seller and the venue for arbitration shall be at New Delhi the language of conducting the proceedings shall be English.  The arbitration shall be held in accordance with the provisions of Arbitration and Conciliation Act, 1996 or any statutory modification or enactments thereof for the time being  in force. The courts at Delhi/New Delhi alone shall have jurisdiction  to try and adjudicate upon any dispute  between the parties”. 

14.     Relevant provision of Consumer Protection Act, 1986 (for short, ‘Act’) which deals with the Jurisdiction of District Forum is Section 11 of the Act and it states;   

“11.    Jurisdiction of the District Forum-(1)   Subject to the other provisions of this Act, the District Forum shall have jurisdiction to entertain complaints, where the value of the goods or services and the compensation, if any, claimed [does not exceed rupees twenty lakhs].

(2)     A complaint shall be instituted in a District Forum within the local limits of whose jurisdiction:-

(a)     the opposite party or each of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides or [carries on business or has a branch office or] personally works for gain, or    

(b)     any of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides, or [carries on business or has a branch office], or personally works for gain, provided that in such case either the permission of the District Forum is given, or the opposite parties who do not reside, or [carry on business or have a branch office], or personally work for gain, as the case may be, acquiesce in such institution; or

          (c)     the cause of action, wholly or in part, arises."

15.      State Commission in its impugned order observed;

”It is not disputed that immoveable property in question is located at Gurgaon, therefore, District Forum, Gurgaon cannot throw its liability upon the Courts at Delhi by taking the shelter of clause No.33 of the agreement because it is well settled proposition of law that by mentioning any specific   condition in the agreement one party cannot take the benefit of territorial jurisdiction of the courts of their own choice when the jurisdiction is otherwise vested in the District Forum at Gurgaon.  Even otherwise, the District Forum has itself given contradictory findings.  On the one side, it has observed that Gurgaon Forum has no territorial jurisdiction, however, on the other hand it has shifted the liability upon the Civil Court.  Out of two places of territorial jurisdiction, parties can choose one, but cannot create the jurisdiction upon a court of their own choice by entering into an agreement, which otherwise has no jurisdiction.”

16.     Though, as per Clause no.33 of the Floor Buyer’s Agreement executed    between the parties, only Delhi Courts have the jurisdiction. However, the Floor Buyer’s  Agreement, cannot be read in isolation.  It has to be read                      as whole.  Other relevant clauses of this agreement are quoted hereunder;

“Clause No.18.      That the Purchaser agrees and undertakes to abide by all laws, rule and regulations relating to Haryana Apartment Ownership Act, 1983 Haryana Urban Development Authority Town & Country Planning Department or any other statutory provisions as may be made applicable from time to time on the said land and for any breach thereof the purchaser shall be solely and exclusively responsible.

39.     That the Purchaser shall abide by all the laws, byelaws, rules and regulations of Town & Country Planning Haryana/HUDA/Local bodies or any other concerned authorities and shall be solely responsible for any breach thereof.

43.     That the Front & Rear Lawn on Ground Floor shall be the exclusive property of the Ground Floor Flat Owner(s), while the top terrace above Second Floor of the building shall be exclusive property of the Second Floor Owner(s), who shall have no right to raise construction of any kind whatsoever without prior approval from the Haryana Govt. of competent Authority in these portions.

44.     That the house tax shall be payable  by the Purchaser for the said Unit/Flat, to the Haryana Municipal Committee with effect from the date on which the liability of paying the house tax is fixed by the authorities for newly constructed building.  However, if the assessment of the property tax is not made separately for each Unit/Flat and a consolidated demand is made by the authorities, then in that event each Purchaser shall pay proportionate share to the Seller on the basis of the area of the Unit/Flat purchased.  If however the said Unit/Flat remains vacant, it shall be the responsibility of the Purchaser to take action to inform the authorities concerned in accordance with the provisions of Law and shall keep the Seller

indemnified for all the charges levied by any authorities on the Seller.”

17.     Thus, as per above clauses of the agreement, it is manifestly clear that if respondents have to  enforce the agreement, then only Courts at Gurgaon would have the jurisdiction.

18.     It is well settled principle of law that  where a relief is claimed in respect of compensation for wrong to, immoveable property situated within jurisdiction of different Courts, the suit may be instituted in any court within the local limits of whose jurisdiction any portion of the property is situated.

19.     Property in these cases, that is, floors in Cosmos Executive Floors, Palam Vihar are situated in Gurgaon. Since these floors have been constructed in Gurgaon only, it clearly shows that petitioner is “working for gain” at Gurgaon only.

20.     Thus, no jurisdiction or legal error has been shown to call for interference in the exercise of power under section 21 (b) of the Act, since State Commission in its order has given cogent reasons which does not call for any interference nor it suffer from any infirmity or revisional exercise of jurisdiction.

 21.    Under these circumstances, Gurgaon District Forum has got the jurisdiction to try the complaints of the respondents. Thus, I do not find any ambiguity or illegality in the impugned order.

22.     Accordingly, present revision petitions being without any legal basis, are hereby dismissed with cost of Rs.5,000/- (Rupees Five Thousand Only) each.

23.   Petitioner is directed to deposit the total cost of Rs.45,000/- (Rupees Forty Five Thousand only), by way of demand draft with ‘Consumer Legal Aid Account’ of this Commission, within eight weeks.

24.    In case, petitioner fails to deposit the aforesaid cost within the prescribed period, then it shall also be liable to pay interest @ 9% p.a., till realization.

25.     Pending application stands disposed of.

26         List on 22.2.2013 for compliance.

.…..…………………………J

(V.B. GUPTA)

PRESIDING MEMBER

Sg/

Whether the ‘business hours’ did not include the lunch break. ? = an incident of theft, which took place in the shop premises of the Complainant/respondent on 8.5.2003 during the lunch hours. Gold ornaments allegedly worth over Rs.21 lakhs and some cash were stolen. Acting on the FIR lodged in this behalf, the Police recovered ornaments worth Rs.12,47,300/-. Therefore, as observed by the State Commission, there is no dispute about the fact of theft.— “Perused the record and documents tendered by the parties. There is no dispute regarding theft of jewelry occurred during the lunch hours. The Police were able to recover only Rs.12,47,000/-. However, total loss due to theft was valued to Rs.22,93,500/-. The Respondent/ Complainant subscribed to the insurance policy providing insurance cover to the ornaments in the shop. The policy document covers display window of the jewelry [included in the total section 1 Sum Insured] and also provided insurance cover for the jewelry kept elsewhere. Total sum Insured under the policy is Rs.21,51,000/-. The survey report mentioned that AC unit had fallen on the floor and on top of it chair has been kept to entire into the shop with intention to burglary. A big ply had also been placed behind the AC grill and AC grill had been cut opened so as to get access for burglary. The survey report is an important piece of document and cannot be ignored. Therefore, intent of burglary of the jewelry by breaking open the shop is clearly established form the record. Theft of jewelry is undisputed fact.”

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION

NEW DELHI

REVISION PETITION NO. 2833 OF 2012

(Against the order dated 14.03.2012 in First Appeal No.

A/06/2448 of the State Commission, Maharashtra)

The New India Assurance Co. Ltd.,

Having office at 87, M.G. Road, Fort,

Mumbai, Maharashtra

Having its Regional office at

Delhi Regional Office-II,

Level-V, Tower-II, Jeevan Bharti Building,

124, Connaught Circus,

New Delhi- 110001

Through its Manager                                                                                                                                               ……….Petitioner

Versus

M/s. Panchsheel Jewelers

Through its Proprietor,

Mr. Sunil Ganesh Mehta

Ruchir Tower, Opp. ICICI Bank,

60 Ft. Road, Bhayander (W),

Tal & Dist. Thane- 401101

Maharashtra                                                                                                                                                                 .....Respondent   

                                                                         

BEFORE

HON’BLE MR. JUSTICE  J. M. MALIK,

                              PRESIDING MEMBER

HON’BLE MR. VINAY KUMAR, MEMBER

For the Petitioner                        :  Mr. Pramod Dayal, Advocate

                                                       & Mr. Nikunj Dayal, Advocate

 

PRONOUNCED ON:  14.12.2012

ORDER

PER MR.VINAY KUMAR, MEMBER

The New India Assurance Co. Ltd. has filed this revision petition against concurrent orders of the District Consumer Disputes Redressal Forum, Thane which had allowed the complaint of M/s. Panchsheel Jewellers in complaint No.339 of 2004 and of the Maharashtra State Consumer Disputes Redressal Commission dismissing the appeal of the revision petitioner in FA No.A/06/2448. 

2.      The matter, as seen from the case record, arose from

an incident of theft, which took place in the shop premises of the Complainant/respondent on 8.5.2003 during the lunch hours.  Gold ornaments allegedly worth over Rs.21 lakhs and some cash were stolen. Acting on the FIR lodged in this behalf, the Police recovered ornaments worth Rs.12,47,300/-. 

Therefore, as observed by the State Commission, there is no dispute about the fact of theft.—

“Perused the record and documents tendered by the parties. There is no dispute regarding theft of jewelry occurred during the lunch hours.  The Police were able to recover only Rs.12,47,000/-. However, total loss due to theft was valued to Rs.22,93,500/-. The Respondent/ Complainant subscribed to the insurance policy providing insurance cover to the ornaments in the shop.  The policy document covers display window of the jewelry [included in the total section 1 Sum Insured] and also provided insurance cover  for the jewelry kept elsewhere.  Total sum Insured under the policy is Rs.21,51,000/-.  The survey report mentioned that AC unit had fallen on the floor and on top of it chair has been kept to entire into the shop with intention to burglary.  A big ply had also been placed behind the AC grill and AC grill had been cut opened so as to get access for burglary.  The survey report is an important piece of document and cannot be ignored.  Therefore, intent of burglary of the jewelry by breaking open the shop is clearly established form the record.  Theft of jewelry is undisputed fact.” 

3.      Yet, the claim of the Complainant for the remaining value of Rs.10,46,500/- was rejected by the OP/revision petitioner. From a perusal of the records it is evident that the  repudiation of the claim rested solely on the assumption/contention  of  the OP/revision petitioner that in this case, for the purposes of the insurance policy, ‘business hours’ did not include the lunch break. 

4.      The case of the Complainant, as seen from the complaint petition before the District Forum was:-

“The complainant respectfully submits that the business hours of the complainant are from 10.00 to 10.00 p.m. so also according to normal business practice lunch hours are the part of working hours of business.  About the gold ornaments kept in the showcase it is not possible every time, when the shop is closed for lunch time during business hours, to keep the ornaments again in the locker, unless during the night time.   The ornaments were intact in the shop which were properly and diligently locked.”

5.      On the other hand, as per the affidavit evidence before the District Forum, the contention of the OP was:-

“The opponent vide its reply dated 18.09.2003 had clearly stated to the complainant that as per the survey report it can be observed that on 08.05.2003 at 1.30 pm after noon the shop was closed locking the main gate and the shutter.  The gold ornaments displayed in the showcase were being kept as it is i.e. in the show case and were not kept back in the locker.  The warranty applicable as per the policy states that warranted that all property including cash currency notes while at the premises specified in the schedule of the policy shall be secured in the locked safe of standard make at all time out of business hours.  In view of the above the claim preferred by the complainant falls under exclusion 12 of jewellers block insurance policy and hence the same is not admissible.”

6.      District Forum rejected the contention of the OP/insurance company that the lunch hours are to be excluded from the business hours.  The State Commission has agreed with the view taken by the District Forum.  Now, the present revision petition has been filed raising the same contention.

7.      From a perusal of the revision petition, we find that the decision of the State Commission has been challenged on the ground that the terms of the policy have to be strictly construed and no exception or relaxation can be made while interpreting the same. In support, the revision petitioner has citied rulings of Hon’ble Supreme Court in the following cases:-

“Deokar Export (P) Ltd. Vs. New India Assurance Co. Ltd., (2008) 14 S.C.C. 598,

Polymat India (P) Ltd. Vs. National Insurance Co. Ltd., (2005) 9 S.C.C. 174

Suraj Mal Ram Niwas Oil Mills (P) Ltd. Vs. United India Insurance Co. Ltd., (2010) 10 S.C.C. 567.”

8.      The law as laid down by the Apex Court is very clear.  In the present case, as in any other case, the terms of the policy need to be strictly construed. However, the problem arises from the interpretation given by the revision petitioner to the same.  We have heard the counsel for the revision petitioner/New India Assurance Company, who forcefully argued that under the terms of the policy all property, including cash at the scheduled premises, should necessarily be secured in locked safe,  at all times out of business hours.  

Loss or damage to property in window display after business hours is not covered. 

9.      It was further argued that during lunch time, if the shop is kept open for attending to customers and if the staff go out for lunch by turns, then the jewellery need not be shifted into the safe. But in the present case, considering the duration for which the shop was closed for lunch hours, the jewelery should have been shifted into the safe. A similar argument is raised in the revision petition also.  However, neither the revision petition nor the counsel point to any provision in the policy, which would permit such an interpretation of the lunch hours.  In its absence, their argument amounts to bringing a stipulation into the policy which is not expressly contained in it. We therefore, have no hesitation in rejecting this contention of the revision petitioner.

10.    For the details examined above, we do not find any merit in this revision petition. It is therefore dismissed for want of merit. No Orders as to costs.

.…………………………

(J. M. MALIK, J.)

PRESIDING MEMBER

………………………….

(VINAY KUMAR)

                                                                                            MEMBER

s./-

a fundamental principle of law that all courts whose orders are not final and appealable, should take notice of. All such courts should decide the lis before it on all issues as may be raised by the parties though in its comprehension the same can be decided on a single or any given issue without going into the other questions raised or that may have arisen. Such a course of action is necessary to enable the next court in the hierarchy to bring the proceeding before it to a full and complete conclusion instead of causing a remand of the matter for a decision on the issue(s) that may have been left undetermined as has happened in the present case. In the light of what has been discussed and the conclusions reached by us we are of the view that in the present case the order of the High Court should receive our interference and the matter should be remanded to the High Court for a de novo decision which may be rendered as expeditiously as possible. Accordingly, we set aside the order dated 13.05.2009 of the High Court and allow these appeals as indicated above.

|  Reportable    |

                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                        CIVIL APPEAL No. 9085 of 2012
               ( Arising out of SLP (Civil) Nos.14618 of 2009)


Chandradhoja Sahoo                      … Appellant(s)

                                   Versus

State of Orissa and  others.            … Respondent(s)


                                    With

                       CIVIL APPEAL No.  9086  of 2012
               ( Arising out of SLP (Civil) No. 14751 of 2009)



                            J  U  D  G  M  E  N T



RANJAN GOGOI, J




1.    Leave granted.


2.    Both the appeals are  directed  against  two  separate  but  identical
orders dated 13.05.2009 passed by the High Court of Orissa whereby the  High
Court has held that  no  legal  or  valid  right  has  accrued  to  the  two
appellants under the lease(s) granted in respect of two  separate  areas  of
land as claimed by them. As the facts of the two cases  are  identical,  for
brevity, reference to the facts in the appeal  arising  out  of  S.L.P.  (C)
No.14618 of  2009 [Chandradhoja Dahu versus  State  of  Orissa  and  others]
would suffice. Similarly,  reference  to  the  appellants,  hereinafter,  is
being made in the singular for purpose of clarity.

3.    The appellant had instituted a writ petition  (W.P.(C)  No.  337/2008)
before the High Court of Orissa contending that sometime in  the  year  1979
he, as a landless person, had  applied for grant of a  lease  of  government
wasteland. On the basis of the aforesaid application W.L. Case  No.  71/1979
was registered in the file of the Tehsildar, Bhubaneswar. Notices were  duly
issued and served and the report of the Amin was  called for and  considered
by the Tehsildar. Thereafter an order dated 26.3.1979  was  passed  settling
the land mentioned  below  in  favour  of  the  appellant  for  agricultural
purposes with the liability to pay rent as a “bagayatdui”:
                       “LAND SCHEDULE
MOUZA– Patia, Khata No.493, Plot No.516, Area Ac.1.107 decs
                                        301 Area Ac 0.93 decs.
                                                    Ac.2.00 ”

4.    Specifically, the appellant had claimed that  in  the  report  of  the
Amin it was mentioned that the settlement operations of  village  Patia  had
been completed and  in  the  Record  of  the  Rights  of  the  said  village
published in the year 1973, plot numbers 516 and 301 have been  recorded  as
“Kanta Jungle”. However, the said  land  did  not  find  any  place  in  the
reservation proceedings. As the land had not been reserved for any  specific
purpose it was stated in the aforesaid report  that  the  same  was  surplus
land. Furthermore, according to  Amin,  spot  enquiries  had  revealed  that
there was no forest growth over the land  and  therefore  the  surplus  land
could be settled for  agricultural  purposes.  Consequently,  by  the  order
dated  26.3.1979,  settlement  of  the  land  was  made  in  favour  of  the
appellant. Thereafter, by order dated 28.5.1979, the Tehsildar had  directed
for correction of the Record of Rights and issuance of patta  in  favour  of
the appellant.

5.    As the Record of Rights was not corrected and  patta  was  not  issued
inspite  of  the  order  of  the  Tehsildar  the  appellant  approached  the
Tehsildar once again in the year 2004. The Tehsildar called for  a  detailed
report  in  the  matter  from  the  Revenue  Inspector.  According  to   the
appellant, the report of the Revenue Inspector  was  submitted  on  6.7.2004
specifically mentioning that the Record of Rights  had  not  been  corrected
and patta had not been  issued  to  the  appellant  and  the  other  persons
mentioned in the report of the  Revenue  Inspector.  On  the  basis  of  the
report of the Revenue Inspector dated 6.7.2004, the  Tehsildar  addressed  a
communication  dated 27.8.2004 to the Sub-Collector, Bhubaneshwar,   seeking
his instructions as to whether the Record of Rights is to be  corrected  and
pattas are to be issued to the concerned persons  including  the  appellant.
Despite the above, as no steps were taken in the matter the appellant  moved
the Board of Revenue seeking appropriate directions. The  learned  Board  by
order dated 7.1.2005 directed the Tehsildar to correct the Record of  Rights
in terms of the order dated 26.3.1979 passed in W.L. Case  No.  71  of  1979
within a period of 15 days and, thereafter, report compliance of the  action
taken.

6.    As the order of the Board of Revenue dated  07.01.2005  was  also  not
implemented a Writ Petition i.e. WP(C) No.281  of  2007  was  filed  by  the
appellant before the High Court for appropriate  directions  commanding  the
respondents therein to give effect to the said  order  of  the  Board.   The
Writ Petition was disposed of by the High Court, at the admission stage,  on
26.02.2007 directing the Tehsildar, Bhubaneswar  to  forthwith  comply  with
the  directions  issued  by  the  Board  of  Revenue  by  its  order   dated
07.10.2005.

7.    Thereafter on 25.08.2007 and while Writ Petition No.281  of  2007  was
pending, the State of Orissa  filed  an  application  before  the  Board  of
Revenue  for  recall  of  its  order  dated  07.01.2005.   By  order   dated
12.10.2007 the said application (registered as Misc. Case No.8 of 2007)  was
entertained and  the  earlier  order  of  the  Board  dated  07.10.2005  was
suspended.  While the matter was so  situated  the  State  filed  a  Letters
Patent  Appeal  (Writ  Appeal  No.129  of  2007)  before  the   High   Court
challenging the order dated 26.02.2007 passed in Writ Petition  No.  281  of
2007, inter-alia, on the ground that the said order was passed  ex-parte  in
so far as the State is concerned.  The aforesaid  LPA  was  disposed  of  on
25.07.2008 remanding the matter to the learned Single Judge for  a  de  novo
consideration after taking into account  the  stand  of  the  State  in  the
matter.  It is at this stage that WP(C )No.337 of  2008  was  filed  by  the
appellant challenging the proceedings before the  Board  of  Revenue  (Misc.
Case No. 8 of 2007) seeking recall of its order dated 07.01.2005.  It is  in
the said Writ Petition that the impugned order has been passed  giving  rise
to the present appeals.

8.    We have heard Mr. Ranjit Kumar, Ms. Pinky Anand,  Mr.  J.K.  Das,  Mr.
Pramod Swarup, learned senior  counsels  and  Mr.  Rajdipa  Behura,  learned
counsel on behalf of the contesting parties.


9.    The case urged by the appellant before  the  High  Court  has  already
been noticed. We may therefore proceed to take note of the  stand  taken  on
behalf of the official respondents before the High Court.
      In the counter affidavit filed by the Tehsildar,  Bhubaneswar  it  was
averred that on receipt of a copy of the order dated  26.02.2007  passed  in
WP(C )No. 281  of  2007,  the  Tehsildar,  Bhubaneswar,  examined  the  case
records of W.L. Case No.71 of 1979.  On such examination it was  found  that
the record of the said case including the report of the Amin and  the  order
dated 26.3.1979 passed therein are forged and fabricated. The  report  dated
06.07.2004 of the Revenue Inspector to the Tehsildar and  the  communication
dated 27.8.2004 of the Tehsildar to the Sub-Collector are claimed to be non-
existent. The signatures of the Tehsildar at different places in the  record
of the proceedings of W.L. Case  No.71  of  1979  including  those  appended
below  the  orders  passed,  including  the  orders  dated   26.3.1979   and
28.5.1979, are forged and fabricated.  The  case  registered  as  W.L.  Case
No.71 of 1979 was entered in the Case  Register  on  22.1.1979  though  W.L.
Case Nos. 71-77 of 1979 were already entered in the Register on  a  previous
date i.e.  19.1.1979.   No  notice  was  issued  to  the  Gram  Pancayat  or
published by beating of drums. No proper enquiry was conducted  whether  the
appellant was a landless person so as to be eligible for grant of  a  lease.
In the said affidavit it was further mentioned  that  though,  according  to
the appellant, the lease  was  granted  by  the  order  of  Tehsildar  dated
26.03.1979 the case record was not available  in  the  record  room  of  the
Tehsil. In fact, according to the official respondents,  the  appellant  had
obtained certified copies of the orders in the W.L. Case No.71  of  1979  in
the year 2004 i.e. after nearly 25 years of the grant of  lease  claimed  to
have been made by the order dated 26.03.1979. It is  on  the  basis  of  the
copies  of  such  orders,  obtained  belatedly  and  in  highly   suspicious
circumstances, that  the  appellant  had  approached  the  different  forums
claiming relief, as already noticed. The above, in substance, was the  stand
of the State in the writ proceeding before the High Court.

10.     In the affidavit filed,  alternatively,  it  was  claimed  that  the
plots in question were recorded in the Record of Rights  as  ‘Kanta  jungle”
which entries would have the effect of bringing the land within the  purview
of the Orrisa Communal Forest and Private Lands (Prohibition of  Alienation)
Act, 1948 (hereinafter referred to as the Act of 1948).   According  to  the
respondents, the land is covered by the definition  of  ‘Communal  land’  or
‘Forest land’ under the Act of 1948. The same,  therefore,  could  not  have
been leased  out  to  any  person  without  the  previous  sanction  of  the
Collector. Any such transfer after the notified date i.e.  01.04.1996  would
be invalid unless such invalidation is saved by the  proviso  to  Section  4
which is not so in the present case. Furthermore, according  to  the  State,
the expression “landlord” defined by Section 2(d) of  the  Act  of  1948  is
comprehensive enough to include the State.

11.    It would thus appear from the stand  taken  by  the  State  that  the
claim made by the appellant in the  Writ  Petition  filed  before  the  High
Court was resisted on two principal grounds, namely :
                  1) No valid order passed on the basis of  an  appropriate
                     proceeding in law exists so as to recognize any  right
                     in the appellant to the  land under the lease claimed;
                     and


           (2) The land having been shown as “kanta jungle’ in  the  Record
           of Rights lease of the said land, even if assumed, is void being
           contrary to the provisions of the Act of 1948.

12.   To appreciate the respective stands of the  parties  before  the  High
Court it will be useful to notice the  definition  of  ‘Communal  land’  and
‘Forest land’ as defined in Section 2(a) and (c) of the Act of 1948:
      “(a)  “Communal land” means –


       (i)  in relation to estates governed by the Madras Estates Land Act,
       1908 (Mad. Act I of 1908), land of the description mentioned in sub-
       clause (a) or sub-clause (b) of C1. (16) of Sec.3 of that Act; and


       (ii) in relation to cases governed by the Orissa Tenancy  Act,  1913
       (B.& O. Act 11 of  1913),  lands  recorded  as  gochar,  rakshit  or
       sarbasadharan in the  record-of-rights  or  waste  lands  which  are
       either expressly or impliedly set apart for the common  use  of  the
       villagers, whether recorded as such in the record-of rights.


                            x x x x x

      (c)  “forest land” includes any  waste  land  containing  shrubs  and
       trees and any other class of land declared to be forest  land  by  a
       notification of the [State][1] Government.”

13.      Certain other significant facts must  be  taken  note  of  now.  It
appears that  during  the  pendency  of  the  present  appeals,  impleadment
applications  have  been  filed  on  behalf   of   the   Orissa   Industrial
Infrastructure  Development  Corporation  –IDCO,  (impleaded  as  respondent
No.6) and one Smt.  Malaya  (no  formal  orders  for  impleadment  has  been
passed). According to the aforesaid respondent No.6 by  a  Government  order
dated 24.01.1986 sanction for alienation of Government land  to  the  extent
of Ac 707.93  in  Patia  village  under  the  Bhubneshwar  Tehsil  had  been
accorded in favour of the Managing Director, IDCO for establishment  of  the
Chandaka Industrial Nucleus Complex on payment of premium and  ground  rent.
Possession of the said land was already handed over to  IDCO  on  14.10.1985
and a lease deed bearing No. 1381 dated 05.02.1986 was executed between  the
Collector, Puri and IDCO in respect of the land for a   total  consideration
of  Rs.17,69,825.   The  aforesaid  documents  i.e.  sanction  order   dated
24.01.1986; letter of handing over possession  dated  04.10.1985  and  lease
deed No.1381 dated 05.02.1986 have been brought on record by  the  aforesaid
respondent No.6. The schedule of the land mentioned in  the  said  documents
would go to show that a part of  the  land  in  respect  of  the  which  the
present claim had been made by the appellant  (Khatta  No.493  plot  No.516)
had been allotted to  IDCO  on  the  basis  of  the  documents  referred  to
hereinabove. The  respondent  No.6  further  claims  that  the  entire  land
covered by Plot No.561 allotted to it had been developed and handed over  to
different units/establishments for starting their  respective  projects  and
possession of such land had also been  handed over to such units long  back.
 In fact, the other applicant who had  sought  impleadment  claims  to  have
been allotted a part of the land covered by plot No.516 (Ac 0.500  decimals)
located at Industrial Estate, Chandka, Bhubneswar  by  the  IDCO  by  letter
dated 27/29.06.2001.

14.     As already  noticed  two  questions  had  arisen  for  determination
before the High Court on the conspectus of the facts noted above. The  first
is whether the case record of W.L.  Case  No.  71  of  1979,  including  the
reports and orders passed therein, are forged and fabricated. The second  is
assuming the lease as claimed by the appellant to have been granted  whether
the same is permissible under  the  provisions  of  the  Act  of  1948.  The
questions posed above not only indicates that the second may  be  contingent
on an answer to the first and, in any case, as discussed hereinafter,  there
is a fair amount of co-relation between the two questions  though  the  same
may appear to be independent of each other.

15.   The High Court did not record any specific finding with regard to  the
allegations of forgery and fabrication of the case record of W.L.  Case  No.
71 of 1979 and the orders passed therein on the  basis  of  the  claims  and
counter claims raised before it. The  conclusion  of  the  High  Court  that
“serious irregularities had been committed while granting  the  lease  about
which it was stated in the counter affidavit” and that “it is also  revealed
from the counter affidavit that before grant of lease no  enquiry  was  ever
conducted” indicates a mere passive acceptance of  the  stand  projected  by
the State without any attempt to verify the correct position on  the  issue.
Infact a reading of the judgment would indicate that the High Court did  not
go into the first question  raised  before  it  in  any  acceptable  manner.
Instead, the High Court thought it proper to proceed on the basis  that  the
land in respect of which claims had been made by the  appellant  is  covered
by the provisions of the Act of 1948 and the  leases  granted,  as  claimed,
were void as the conditions precedent for  the  grant  of  such  leases,  as
prescribed by the statute, had not been complied with.  On  the  said  basis
the High court came to the conclusion that no legal right in respect of  the
land  in  question  can  be  recognized  in  the   appellant.   Accordingly,
directions were issued for resumption of the land in question by the  State.


16.   It has already been indicated in the earlier part of this  order  that
the two questions that arose before the High Court may  not  be  independent
of each  other  and  infact  the  answer  to  the  second  question  may  be
contingent on an  effective  resolution  of  the  first.  Having  given  our
anxious consideration to the matter we are of the view that  the  manner  in
which the High Court had proceeded to decide the writ petition,  namely,  by
an inconclusive and vague determination of the first issue and  instead,  by
attempting to answer the  second   is  not  only  unacceptable  but  certain
fundamental errors are inherent and,  therefore,  writ  large  in  the  said
approach, to which area we must now travel.

17.   The publication of the Record of Rights of Mouza Patia Village in  the
year 1973 showing the land covered  by  plot  No.  516  and  301  as  “Kanta
jungle” was noticed in the report of the Amin submitted  to  the  Tehsildar.
However,
 in the said report, it was  mentioned  that  there  was  no  forest
growth over the land and also that the  aforesaid  land  did  not  find  any
place in the reservation proceedings. 
It was also reported  that  the  land,
not having  been  reserved  for  any  specific  purpose,  was  surplus  land
available for settlement for agricultural purposes.  
Pursuant  to  the  said
report the Tehsildar by order dated  26.3.1979  granted  settlement  of  the
land in favour of the appellant and on 28.5.1979, on expiry  of  the  appeal
period, it was directed that the Record of Rights be corrected and patta  be
issued in favour of the appellant.
In the  record  of  proceedings  of  W.L.
Case No.71 of 1979, it is also  recorded  that  the  aforesaid  orders  were
passed by the Tehsildar upon due service  of  notice.
The  State  contended
that the aforesaid facts are wholly non-existent and the  reports  mentioned
and orders issued in connection with W.L. Case No.71 of 1979 are forged  and
fabricated. 
In fact, according  to  the  State,  the  entire  claim  of  the
appellant was based on non-existent facts conceived in fraud and deceit  and
there was no case registered as W.L. Case No.71 of 1979 in  respect  of  the
plot Nos. 516 and 301.
If  the  version  put  forth  by  the  appellant  is
correct, the outcome/decision on the second  issue  before  the  High  Court
would have certainly stood answered in his favour  inasmuch  as  in  such  a
situation the question of applicability of the Act of 1948 would not  arise.
If the answer to the said question  was,  however,  to  be  adverse  to  the
appellant and in favour of the State, the appellant would  not  be  entitled
to any relief from the Court on a more fundamental principle than  what  the
second question had raised inasmuch as in  that  event  the  principle  that
“fraud  and  justice  never  dwell  together”  would  come  into  play.
The
elaborate  discussions  on  the  said  principle  of  law  in  Meghmala  vs.
G.Narasimha Reddy[2] made by one of us (Sathasivam,J.) may be remembered  at
this stage with abundant profit.
 Besides,  the  additional  facts  now  made
available to the court on behalf of the IDCO namely,  that  a  part  of  the
land covered by plot Nos. 516 and 301 had been alienated in favour  of  IDCO
under the provisions of the Orissa  Land  Settlement  Act  would  require  a
closer examination of the question as to how such an alienation  could  have
been made in favour of the IDCO if the land was recorded  as  “Kanta  Jungle
in the Record of Rights published in the year, 1973.

18.   The discussions that have preceded reasonably lead to  the  conclusion
that the approach of the High Court in attempting to  resolve  the  conflict
between the parties suffer from a fundamental error which  would  justify  a
correction. The High Court ought not to have split up the two  questions  as
if they were independent of each other and on that basis ought not  to  have
proceeded to determine the  second  question  without  recording  acceptable
findings on all aspects connected with the  first.
The  extracts  from  the
order of the High Court made above discloses mere acceptance of the  version
of the State as  disclosed  in  the  counter  affidavit  filed  without  any
attempt to enter into the core questions that the conflicting claims of  the
parties had thrown up. If required, the High Court could have entrusted  the
required exercise to be performed by a Court  Appointed  Committee.  In  any
event, such a Committee had been constituted by the High Court by  its  very
same order to look into other such cases of grant of leases  under  the  Act
of 1948.

19.   We also deem it necessary to reiterate herein
a fundamental  principle
of law that all courts whose orders are not  final  and  appealable,  should
take notice of.  All such courts should decide the  lis  before  it  on  all
issues as may be raised by the parties though in its comprehension the  same
can be decided on a single or any given issue without going into  the  other
questions raised or that may  have  arisen.  Such  a  course  of  action  is
necessary to enable the next court in the hierarchy to bring the  proceeding
before it to a full and complete conclusion instead of causing a  remand  of
the matter  for  a  decision  on  the  issue(s)  that  may  have  been  left
undetermined as has happened in the present case.
The above  may  provide  a
small solution to the inevitable delays that occur in  rendering  the  final
verdict in a given case.


20.   In the light of what has been discussed and  the  conclusions  reached
by us we are of the view that in the present case  the  order  of  the  High
Court should receive our interference and the matter should be  remanded  to
the  High  Court  for  a  de  novo  decision  which  may  be   rendered   as
expeditiously as  possible.  Accordingly,  we  set  aside  the  order  dated
13.05.2009 of the High Court and allow these appeals as indicated above.

                                             ...……………………J.
                                               [P. SATHASIVAM]



                                             ………………………J.
                                               [RANJAN GOGOI]
New Delhi,
December 14, 2012.






















-----------------------
[1]    Subs, by the Adaptation of Laws Order, 1950, for “Provincial”.
[2]    (2010) 8 SCC 383

-----------------------
19

Significantly, PW-1 had deposed that a register is maintained with respect to the gold articles pledged with the Bank showing the weight, the nature of the article, quality of the gold, name of the design etc. for purposes of identification of the articles pledged. However, no such register was brought on record by the prosecution. At the same time, PW-2 who was the Manager of the bank at the time of the filing of the complaint had stated that he had not called the borrowers/accused to identify the gold articles when the same were found to be fake nor had he informed the accused that the gold ornaments pledged by them were fake. That a register showing the particulars and description of the gold ornaments pledged to the bank was maintained had also been admitted by PW-3. PW-1 in his cross- examination had admitted that each gold article pledged with the bank will have a chit containing the loan account number, signature of the borrower and the bank officials but in respect of the gold articles exhibited in the court no such chits were found to be affixed. It also transpires that PW-1 who was the Bank Manager at the time of the loan transaction had handed over the articles to the new incumbent (PW-2) and furthermore that the gold ornaments pledged were kept in a locker and were subjected to regular inspection by the bank officials. PW-4 who had submitted the second appraisal report to the effect that the gold ornaments sent to him were fake had deposed that the said fact i.e. gold ornaments were fake could be made out on an examination by the naked eye. If the prosecution evidence itself had revealed the aforesaid facts it is difficult to see as to how the conclusion of the learned trial court that the prosecution had failed to prove that the gold ornaments exhibited in the case are the very same articles pledged by the accused is in any way erroneous or untenable in law so as to dis entitle the accused to be acquitted. 8. For all the aforesaid reasons we are of the view that the judgment and order dated 16/11/2010 and 22/3/2011 passed by the High Court in each of the Criminal Revisions before it cannot be sustained in law. We therefore, allow the appeals and set aside the common judgment and order dated 16/11/2010 and 22/3/2011 passed by the High Court in the Criminal Revision Petitions filed by the respondent Bank.

|REPORTABLE          |



           IN THE SUPREME COURT OF INDIA

                  CRIMINAL APPELATE JURISDICTION

                 CRIMINAL APPEAL No.2049-2066 of 2012
           (Arising out of SLP (Crl.) Nos. 5206-5223 of 2011)



Kumar Etc. Etc.                                   ...Appellant

                       Versus

Karnataka Industrial Coop. Bank Ltd. & Anr    …Respondents




                            J  U  D  G  M  E  N T



RANJAN GOGOI, J.



1.    Leave granted in each of the Special Leave Petitions.



2.    The appellants who have been acquitted of the charges  under  Sections
406 and 420 read with Section 34 of the Indian Penal  code  have  filed  the
instant appeals challenging the conviction ordered  by  the  High  Court  of
Karnataka in the exercise of its Revisional Jurisdiction under  Section  397
read with Section 401 of the Code of Criminal Procedure.
The  appellant  in
each of the appeals has been sentenced to undergo R.I. for three months  for
the offence punishable under Section 406 IPC and R.I for six months for  the
offence under Section 420 IPC. 
While both the sentences of imprisonment  are
to run concurrently, each of the appellants has also been sentenced  to  pay
fine or undergo the default sentence that has been imposed.

3.    The facts lie within a short compass and  may  be  briefly  enumerated
herein under.

       The respondent No.  1  in  each  of  these  appeals  i.e.  Karnataka
Industrial Corporation Bank Ltd., Hubli (hereinafter shall  be  referred  to
‘the complainant Bank’) had filed 18 different complaints in  the  Court  of
Judicial Magistrate, First Class, Hubli  alleging  that  between  12.07.2003
and 31.03.2004 loans were taken by each  of  the  appellants  by  mortgaging
gold ornaments. 
According to the complainant Bank,  on  10.06.2004,  a  news
item had appeared in the local newspapers  that  the  appraiser  of  Maratha
Cooperative Bank had given false appraisal reports on  the  basis  of  which
the said bank had granted loans against fake gold ornaments.  
As  the  said
person was also the appraiser of the complainant  Bank  the  gold  ornaments
pledged with the complainant bank  by  the  accused  were  verified  through
another appraiser (PW.4) who certified the gold  ornaments  pledged  by  the
accused to be fake. 
Accordingly,  the  complaints  in  question  were  filed
alleging commission of offences under Section 406, 420 read with Section  34
of the IPC by each of the accused persons  who  had  taken  loans  from  the
complainant Bank by  pledging  fake  gold  ornaments.  
The  complaints  were
referred, by the learned Magistrate, to the police for investigation and  on
completion of such investigation charge  sheets  were  filed  in  the  Court
against each of the accused. Thereafter charges were  framed  to  which  the
accused pleaded not guilty and claimed to be tried. All the complaint  cases
were taken up for trial together and the evidence  of  the  prosecution  was
recorded in the complaint case registered and numbered as CC.  No.  1235  of
2005. In the course  of  the  trial  six  witnesses  were  examined  by  the
prosecution and several  documents  were  also  exhibited.
Thereafter,  the
learned trial court by order dated 29.2.2008 acquitted each of  the  accused
of the charges levelled against them. 
 It may also be  noticed  that  during
the pendency of the trial, the appraiser, who was impleaded  as  the  second
accused had died.
Aggrieved by  the  said  acquittal,  the  complaint  Bank
instituted  separate  Revision  applications  before  the  High   Court   of
Karnataka.   
The High  Court  by  its  common  order  dated  16/11/2010  and
22/3/2011  allowed  each  of  the  Revision  Applications   filed   by   the
complainant Bank and convicted  and  sentenced  the  accused  as  aforesaid.
Aggrieved the present appeals have been filed.

4.    We have heard Mr. Shankar Divate, learned counsel  for  the  appellant
and Mr. N.D.B. Raju and  Mr.  V.N.  Raghupathy,  learned  counsels  for  the
respondents.

5.    The revisional jurisdiction of  a  High  Court  is  conferred  by  the
provisions of Section 397 read with Section 401  of  the  Code  of  Criminal
Procedure. 
While Section 397 empowers the High court to call for the  record
of  any  proceeding  before  any  inferior   criminal   court   within   its
jurisdiction to satisfy itself as to the correctness, legality or  propriety
 of any finding, sentence or order and such power extends to  suspension  of
execution of any sentence or order and also to release the accused on  bail,
under Section 401 (3) Cr.P.C. there is an express bar in the High Courts  to
convert  a  finding  of  acquittal  into  one  of  conviction.  
While   the
revisional power under the Code would undoubtedly vest  in  the  High  Court
the jurisdiction to set aside an order  of  acquittal  the  same  would  not
extend to permit  the  conviction  of  the  accused.  The  High  Court  may,
however, order a retrial or a rehearing of  the  case,  as  may  be,  if  so
justified. [vide Sheetala Prasad & Ors. v. Sri Kant & Anr.[1]  and  Johar  &
Ors. v. Mangal Prasad & Anr.[2]]. In view of the above we  do  not  see  how
the orders of the High Court dated 16/11/2010 and 22/3/2011  converting  the
acquittal of the accused appellants to one of conviction and  the  sentences
imposed on each of them can be sustained in law.

6.    There is another aspect of the case which cannot be left  unaddressed.
The Revision Applications filed by the  complainant  Bank  before  the  High
Court were inordinately delayed, i.e., some by 290 days and  the  others  by
785 days.
We  have  read  and  considered  the  application  filed  by  the
complainant Bank under  Section  5  of  the  Limitation  Act,  1963  seeking
condonation of the delay that  had  occurred  in  instituting  the  Revision
Applications.
The entire application is in a single paragraph  containing  a
bald statement that the result of the case (perhaps the order of  the  trial
court) was not intimated to the bank  and  it  is  only  after  getting  the
requisite  information  and  certified  copies  of  the  judgment  that  the
Revision application could be filed.
The High Court had condoned the  delay
on the ground that mere  technicalities  should  not  come  in  the  way  of
rendering  justice.   While  there  can  be  no  dispute  with   the   above
proposition, we do not see how the same could have had  any  application  to
the present case.   It was the duty  of  the  High  Court  to  consider  the
reasons assigned for  the  delay  and  thereafter  come  to  the  conclusion
whether, on the grounds  shown,  sufficient  cause  within  the  meaning  of
Section 5 of the Limitation Act has been made out.
We  have  already  taken
note of the contents of the condonation application filed on behalf  of  the
bank and it is our considered view that on the basis of the statements  made
therein  no  satisfaction  could  have  been  reasonably  reached  that  the
complainant Bank was prevented by sufficient cause from filing the  Revision
Applications in time.

7.    We have also been addressed by the learned counsels  for  the  parties
at some length on the merits of the matter. To make the discussion  complete
we may briefly note the reasons that had  weighed  with  the  learned  trial
court to acquit the accused in the present cases.
We  have  considered  the
evidence tendered by the prosecution witnesses, particularly,  Madan  Athani
  (PW-1), A.N. Ramakrishna (PW-2), Irappa Abbigeri (PW-3) and Pandurang (PW-
4). Significantly, PW-1 had deposed  that  a  register  is  maintained  with
respect to the gold articles pledged with the Bank showing the  weight,  the
nature of the article, quality of the gold, name  of  the  design  etc.  for
purposes of identification of  the  articles  pledged.    
However,  no  such
register was  brought on record by the prosecution.
At the same time,  PW-2
who was the Manager of the bank at the time of the filing of  the  complaint
had stated that he had not called  the  borrowers/accused  to  identify  the
gold articles when the same were found to be fake nor had  he  informed  the
accused that the gold ornaments pledged by them were fake.  
That a  register
showing the particulars and description of the  gold  ornaments  pledged  to
the bank was maintained had also been admitted by PW-3. PW-1 in  his  cross-
examination had admitted that each gold article pledged with the  bank  will
have a chit containing the loan account number, signature  of  the  borrower
and the bank officials but in respect of the gold articles exhibited in  the
court no such chits were found to be affixed.  
It also transpires that  PW-1
who was the Bank Manager at the time of  the  loan  transaction  had  handed
over the articles to the new incumbent (PW-2) and furthermore that the  gold
ornaments pledged were kept in  a  locker  and  were  subjected  to  regular
inspection by the  bank  officials.   
PW-4  who  had  submitted  the  second
appraisal report to the effect that the gold  ornaments  sent  to  him  were
fake had deposed that the said fact i.e. gold ornaments were fake  could  be
made out on an examination by the naked eye. 
 If  the  prosecution  evidence
itself had revealed the aforesaid facts it is difficult to  see  as  to  how
the conclusion of the learned trial court that the  prosecution  had  failed
to prove that the gold ornaments  exhibited  in the case are the  very  same
articles pledged by the accused is in any way erroneous or untenable in  law
so as to dis entitle the accused to be acquitted.

8.    For all the aforesaid reasons we are of the  view  that  the  judgment
and order dated 16/11/2010 and 22/3/2011    passed  by  the  High  Court  in
each of the Criminal Revisions before it cannot  be  sustained  in  law.  We
therefore, allow the appeals and set aside the  common  judgment  and  order
dated 16/11/2010 and 22/3/2011 passed by the  High  Court  in  the  Criminal
Revision Petitions filed by the respondent Bank.



                                        …………………………….J.
                                            [ P. SATHASIVAM ]



                                        ………………………………J.
                                            [ RANJAN  GOGOI ]


New Delhi,
December 14, 2012









-----------------------
[1]        2010(2) SCC 190
[2]        2008 (3) SCC 423


-----------------------
9