Sections 378(1) and 378(4) of the Code and the relevant provisions of the PFA.- whether in a complaint case, an appeal from an order of acquittal of the Magistrate would lie to the Sessions Court under Section 378(1) (a) of the Code or to the High Court under Section 378(4) of the Code.=In view of the above, we conclude that a complainant can file an application for special leave to appeal against an order of acquittal of any kind only to the High Court. He cannot file such appeal in the Sessions Court. In the instant case the complaint alleging offences punishable under Section 16(1)(1A) read with Section 7 of the PFA Act and the Rules is filed by complainant Shri Jaiswal, Local Health Authority through Delhi Administration. The appellant was acquitted by the Metropolitan Magistrate, Patiala House Courts, New Delhi. The complainant can challenge the order of acquittal by filing an application for special leave to appeal in the Delhi High Court and not in the Sessions Court. Therefore, the impugned order holding that this case is not governed by Section 378(4) of the Code is quashed and set aside. In the circumstances the appeal is allowed.

                                                                  REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION

                       CRIMINAL APPEAL NO. 50  OF 2013
       [Arising out of Special Leave Petition (Crl.) No.6937 of 2011]


SUBHASH CHAND                     …            APPELLANT


           Vs.

STATE  (DELHI ADMINISTRATION).    …            RESPONDENTS


                                  JUDGMENT


(SMT.) RANJANA PRAKASH DESAI, J.

1.    Leave granted.

2.    This appeal, by special leave, is directed against judgment and  order
dated 07/01/2011 passed by the High Court of Delhi in  Criminal  Misc.  Case
No.427 of 2009 whereby the High Court dismissed the petition  filed  by  the
appellant holding that an appeal filed by the  State  against  an  order  of
acquittal shall lie to the Sessions Court under Section 378(1) of  the  Code
of Criminal Procedure, 1973 (for short, “the Code”) and  not  under  Section
378(4) of the Code to the High Court.


3.     The appellant is the supplier-cum-manufacturer of  the  food  article
namely Sweetened Carbonated Water.
 He is carrying on business in  the  name
and style of M/s. Subhash Soda Water Factory. 
 On  6/6/1989  at  about  4.15
p.m., one P.N. Khatri, Food  Inspector,  purchased  a  sample  of  sweetened
carbonated  water  for  analysis  from  one  Daya  Chand  Jain,  Vendor-cum-
Contractor of Canteen at Suraj Cinema, Dhansa Road, Najafgarh, Delhi.  
After
following the necessary  procedure,  the  sample  was  sent  to  the  Public
Analyst for analysis. 
On  analysis,  the  Public  Analyst  opined  that  the
sample does not conform to the prescribed  standard.  
After  conclusion  of
the investigation, the respondent–State through its Local  Health  Authority
- P.K.  Jaiswal  filed  a  Complaint  bearing  No.64  of  1991  against  the
appellant and Daya Chand in the Court of the  Metropolitan  Magistrate,  New
Delhi alleging that the appellant and the said Daya Chand had  violated  
the
provisions of Sections 2(ia), (a), (b), (f), (h), (l),  (m),  Section  2(ix)(j), (k) and Section 24 of the Prevention of  Food  Adulteration  Act,  1954(for short, “PFA Act”) and Rule 32, Rule 42 (zzz)(i)  and  Rule  47  of  the Prevention of Food Adulteration Rules, 1955 (for  short,  “the  Rules”)  and
committed an offence punishable under Section 16(1)(1A) read with Section  7 of the PFA Act and the Rules.
Since Daya Chand died during the pendency  of
the case, the case abated as against  him.   
The  appellant  was  tried  and
acquitted by learned Magistrate by order dated 27/2/2007.

4.    Being aggrieved by the said order  dated  27/2/2007,  the  respondent-
State preferred Criminal Appeal No.13 of 2008 in the  Sessions  Court  under
Section 378(1)(a) of the Code. The appellant raised a preliminary  objection
in regard to the maintainability of the  said  Appeal  before  the  Sessions
Court in view of Section 378(4) of the Code.  He contended  that
an  appeal
arising from an order of acquittal in a complaint  case  shall  lie  to  the High Court.   
The said objection was  rejected  by  the  Sessions  Court  by
order dated 4/2/2009.
5.    Aggrieved by the said order dated 4/2/2009,  the  appellant  preferred
Criminal Misc. Case No.427 of 2009 before the High Court.   By  order  dated
9/7/2009,
the High Court held that the Sessions Court  has  no  jurisdiction
to entertain an appeal filed in a  complaint  case  and  directed  that  the
appeal be transferred to it.  
Accordingly, Criminal  Appeal  No.13  of  2008
pending before the Sessions Court was transferred to the High Court and  re-
numbered as Criminal Appeal No.642 of 2009.

6.    The respondent-State carried the said order  dated  9/7/2009  to  this
court by Special Leave Petition (Crl.)  No.9880  of  2009  (Criminal  Appeal
No.1514 of 2010).  By order dated 13/8/2010, this court remanded the  matter
to the High Court and directed that  the  matter  be  decided  afresh  after
taking into consideration Sections 378(1) and 378(4) of  the  Code  and  the
relevant provisions of the PFA.   On  remand,  the  High  Court  passed  the
impugned judgment and order dated 7/1/2011.

7.    The short point which arises  for  consideration  in  this  appeal  is
whether in a complaint case, an appeal from an order  of  acquittal  of  the Magistrate would lie to the Sessions Court under Section 378(1) (a)  of  the Code or to the High Court under Section 378(4) of the Code.

8.    At our request, Mr.  Sidharth  Luthra,  learned  Additional  Solicitor
General has assisted us as  Amicus  Curiae.  We  have  heard  Ms.  Meenakshi
Lekhi, learned counsel appearing for the petitioner and Mr.  P.P.  Malhotra,
learned Additional Solicitor  General  appearing  for  the  State.   Written
submissions have been filed by the counsel which we have carefully  perused.
Mr. Luthra took  us  through  the  relevant  excerpts  of  Law  Commission’s
reports.  He took us through the  Code  of  Criminal  Procedure  (Amendment)
Bill, 1994 ( Bill No. XXXV of 1994). He  also  took  us  through  un-amended
and  amended  Section  378  of  the  Code.  After  analyzing  the   relevant
provisions, Mr. Luthra submitted that no appeal lies  against  an  order  of
acquittal in cases instituted upon a complaint to the Sessions  Court.   Ms.
Lekhi also adopted similar line of reasoning.

9.    Mr. Malhotra learned Additional Solicitor General adopted a  different
line of argument and therefore, it is necessary to note his  submissions  in
detail. Counsel pointed out how the law relating to appeals  against  orders
of acquittal has evolved over the years.  Counsel submitted that  under  the
Code of Criminal Procedure, 1861 no appeal against  an  order  of  acquittal
could be filed.  The Code of Criminal Procedure,  1872  permitted  only  the
State Government to file an appeal against acquittal order.  Section 417  of
the Criminal Procedure Code, 1898  permitted  only  the  State  to  file  an
appeal against acquittal order.  In 1955 it was amended so as to permit  the
complainant to file an appeal against acquittal order.  Under  the  Code  of
Criminal Procedure, 1973,  Section  417  was  substituted  by  Section  378.
Counsel pointed out that under Section 378(4)  a  complainant  could  prefer
appeal against order of acquittal, if special leave was granted by the  High
Court.  However, in all cases the State could present appeal  against  order
of acquittal. Counsel then referred to Section 378 of the  Code  as  amended
by Act No. 25 of 2005 and submitted that the only change in sub-section  (1)
is adding clauses (a) and (b) to  it.   Counsel  described  this  change  as
minor and submitted that the State’s right to file appeal against orders  of
acquittal remains intact and is not  taken  away.   Counsel  relied  on  the
words ‘State Government may, in any case’ and  submitted  that  these  words
preserve the State’s right to file appeal against acquittal  orders  of  all
types.  There is no limitation on this  right  whatsoever.   This  right  is
preserved according to the counsel because the State  is  the  protector  of
people.  Safety and security of the community is its  concern.   Even  if  a
complainant does not file an appeal  against  an  order  of  acquittal,  the
State Government can in public interest file it.  Counsel also addressed  us
on the question of plurality of appeals.  That issue is not before  us.   It
is, therefore, not necessary to refer to that  submission.   In  support  of
his submissions counsel placed  reliance  on  Khemraj  v.  State  of  Madhya
Pradesh[1], State (Delhi Adminsitration) v. Dharampal[2], Akalu Ahir &  Ors.
v. Ramdeo Ram[3], State v. Ram Babu & Ors.[4], Food Inspector v.  Moidoo[5],
Prasannachary v. Chikkapinachari & Anr.[6], State of Maharashtra v.  Limbaji
Sayaji Mhaske, Sarpanch Gram Panchayat[7], State of Punjab & Anr.  v.  Jagan
Nath[8] and  State of Orissa v. Sapneswar Thappa[9].

10.   To understand the controversy, it is  necessary  to  have  a  look  at
Section 378 of the Code prior to  its  amendment  by  Act  25  of  2005  and
Section 378 amended thereby.

11.   Section 378 of the Code prior to its amendment by Act 25 of 2005  read
as under:

      “Appeal in case of acquittal.


      378. Appeal in case of acquittal. (1) Save as otherwise  provided   in
      sub-section (2) and subject to the  provisions  of  sub-sections   (3)
      and  (5),  the State Government may, in any case,  direct  the  Public
       Prosecutor to present an appeal to the High Court  from  an  original
      or  appellate  order  of acquittal passed by any Court other  than   a
      High  Court  2*[or an order  of  acquittal  passed  by  the  Court  of
      Session  in revision.]


              (2) If  such an order of acquittal is passed in  any  case  in
      which  the  offence  has  been  investigated  by  the  Delhi   Special
      Police  Establishment  constituted  under  the  Delhi  Special  Police
      Establishment  Act,  1946  (25  of  1946),  or  by  any  other  agency
      empowered  to  make  investigation  into an offence under any  Central
      Act other  than  this  Code, the Central Government  may  also  direct
      the  Public  Prosecutor   to   present   an  appeal,  subject  to  the
      provisions of sub-section  (3),  to the High Court from the  order  of
      acquittal.


              (3) No  appeal under sub-section (1) or sub-section (2)  shall
       be  entertained except with the leave of the High Court.


            (4) If such  an  order  of  acquittal  is  passed  in  any  case
      instituted  upon complaint and the High Court, on an application  made
      to it by the  complainant  in this behalf,  grants  special  leave  to
      appeal  from  the  order of acquittal,  the  complainant  may  present
      such an appeal to  the  High Court.


              (5) No  application under sub-section (4)  for  the  grant  of
      special   leave  to  appeal  from  an  order  of  acquittal  shall  be
      entertained by the  High Court after the expiry of six  months,  where
      the complainant is  a  public servant, and sixty days in  every  other
      case, computed from  the  date of that order of acquittal.


             (6) If in any case, the application under sub-section  (4)  for
      the   grant   of   special   leave   to  appeal  from  an   order   of
      acquittal  is  refused,  no appeal from that order of acquittal  shall
      lie under  sub-  section (1) or under sub-section (2).”





      Thus, under earlier Section 378(1) of the Code, the  State  Government
could, in any case, direct the Public Prosecutor to  present  an  appeal  to
the High Court from an original or appellate order of  acquittal  passed  by
any court other than a High Court or an order of  acquittal  passed  by  the
Court of Session in revision.  Section 378(2) covered cases where  order  of
acquittal was passed in any case in which the offence had been  investigated
by the Delhi  Special  Police  Establishment  constituted  under  the  Delhi
Special Police Establishment Act, 1946 or by any other agency  empowered  to
make investigation into an offence under any  Central  Act  other  than  the
Code.  In such cases, the Central Government could also  direct  the  Public
Prosecutor to present  an  appeal  to  the  High  Court  from  an  order  of
acquittal.   Section 378(3) stated that appeals under sub-sections  (1)  and
(2) of Section 378 of the Code could not  be  entertained  except  with  the
leave of the High Court.   Sub-section  (4)  of  Section  378  of  the  Code
provided for  orders  of  acquittal  passed  in  any  case  instituted  upon
complaint.  According to this provision, if on an application made to it  by
the complainant, the High Court grants special  leave  to  appeal  from  the
order of acquittal, the complainant could present  such  an  appeal  to  the
High Court.  Sub-section (5) of Section 378  of  the  Code  provided  for  a
period of limitation.  Sub-section (6) of Section 378  of  the  Code  stated
that if in any case, the application under sub-section (4) for the grant  of
special leave to appeal from an order of acquittal  is  refused,  no  appeal
from that order of acquittal  shall  lie  under  sub-sections  (1)  or  (2).
Thus, if the High Court refused to grant special  leave  to  appeal  to  the
complainant, no appeal from that order of acquittal could be  filed  by  the
State or the agency contemplated in Section 378(2).  It is clear from  these
provisions that earlier an appeal against an order of acquittal  could  only
lie to the High Court.  Sub-section (4) was aimed at giving finality to  the
orders of acquittal.





12.   Before we proceed to analyze the amended Section 378 of the  Code,  it
is necessary to quote the relevant clause in the 154th  Report  of  the  Law
Commission of India, which led to the amendment of Section 378 by Act 25  of
2005.  It reads thus:

      “6.12. Clause 37: In order to guard against the arbitrary exercise  of
      power and to reduce reckless acquittals, Section 378 is sought  to  be
      amended providing an appeal against an order of acquittal passed by  a
      Magistrate in respect of cognizable and non-bailable offence filed  on
      a police report to the Court of Session as directed  by  the  District
      Magistrate.  In respect of all other cases filed on a  police  report,
      an appeal shall lie to the High Court against an  order  of  acquittal
      passed by any other court other than the High Court,  as  directed  by
      the State Government.  The power to  recommend  appeal  in  the  first
      category is sought to be vested in the  District  Magistrate  and  the
      power in respect of second category  would  continue  with  the  State
      Government.”

      The Code of Criminal Procedure (Amendment) Bill,  1994  has  the  same
note on Clause 37.

13.   Though, the Law Commission’s 154th report indicated that  Section  378
was being amended to provide that an appeal against an  order  of  acquittal
passed by a Magistrate in respect of a cognizable and  non-bailable  offence
filed on a police report would lie to  the  court  of  Sessions,  the  words
“police report” were not included  in  the  amended  Section  378.  In  this
connection, it is necessary to refer to the relevant extract  from  the  Law
Commission’s 221st report of April, 2009.  After noting  amendment  made  to
Section 378 the Law Commission stated as under:
      “2.9  All appeals against orders of acquittal  passed  by  Magistrates
      were being filed in High Court prior to amendment of  Section  378  by
      Act 25 of 2005.  Now, with effect  from  23.06.2006,  appeals  against
      orders of acquittal passed by Magistrates in respect of cognizable and
      non-bailable offences in cases filed on police report are being  filed
      in the Sessions Court, vide clause (a) of sub-section (1) of the  said
      section.  But, appeal against order of acquittal passed  in  any  case
      instituted upon complaint continues to be filed in the High Court,  if
      special leave is granted by it on an application made  to  it  by  the
      complainant, vide sub-section (4) of the said section.


      2.10  Section 378 needs change with a view to enable filing of appeals
      in complaint cases also in the Sessions Court, of course,  subject  to
      the grant of special leave by it.”


      These two extracts of the Law Commission’s report make it  clear  that
though the words ‘police report’ are not mentioned in  Section  378(1)  (a),
the Law Commission noted that the effect  of  the  amendment  was  that  all
appeals against an order of acquittal passed by a Magistrate in  respect  of
a cognizable and non-bailable offence in cases filed on  police  report  are
being filed in the Sessions Court.  The Law Commission lamented  that  there
is no provision  enabling  filing  of  appeal  in  complaint  cases  in  the
Sessions Court subject to the grant of special leave by it.  Thus,  the  Law
Commission acknowledged that there is no provision in the Code  under  which
appeals in complaint cases could be filed in the Sessions Court.   We  agree
with this opinion for reasons which we shall now state.


14.   Having analysed un-amended Section 378 it is necessary to have a  look
at Section 378 of the Code, as amended by Act  25  of  2005.   It  reads  as
under:


      “378. Appeal in case of acquittal.

      [(1) Save as otherwise provided in sub-section (2) and subject to  the
      provisions of subsections (3) and (5), -
     
           (a) the District Magistrate may, in any case, direct the  Public
      Prosecutor to present an appeal to the Court of Session from an  order
      of acquittal passed by a Magistrate in respect of a cognizable and non-
      bailable offence;
     
           (b) the State Government may, in any  case,  direct  the  Public
      Prosecutor to present an appeal to the High Court from an original  or
      appellate order of acquittal passed by any court  other  than  a  High
      Court [not being an order under clause (a)] [or an order of  acquittal
      passed by the Court of Session in revision].
     
      (2) If such an order of acquittal is passed in any case in  which  the
      offence  has  been  investigated   by   the   Delhi   Special   Police
      Establishment constituted under the Delhi Special Police Establishment
      Act, 1946 (25 of 1946) or  by  any  other  agency  empowered  to  make
      investigation into an offence under any Central Act  other  than  this
      Code. [the Central Government may, subject to the provisions  of  sub-
      section (3), also direct the Public Prosecutor to present an appeal-
     
           (a) to the Court of Session, from an order of  acquittal  passed
      by a Magistrate in respect of a cognizable and non-bailable offence;
     
           (b) to the High Court from an original or appellate order of  an
      acquittal passed by any Court other than a High Court  [not  being  an
      order under clause (a)] or an order of acquittal] passed by the  Court
      of Session in revision.]
     
      (3)[No appeal to the High Court] under subsection  (1)  or  subsection
      (2) shall be entertained except with the leave of the High Court.
     
      (4) If such an order of' acquittal is passed in  any  case  instituted
      upon Complaint and the High Court, on an application made to it by the
      complainant in this behalf, grants, special leave to appeal  from  the
      order of acquittal, the complainant may present such an appeal to  the
      High Court.
     
      (5) No application under subsection (4) for the grant of special leave
      to appeal from an order of acquittal shall be entertained by the  High
      Court after the expiry of six  months,  where  the  complainant  is  a
      public servant, and sixty days in every other case, computed from  the
      date of that order of acquittal.
     
      (6) If in any case, the application  under  sub-section  (4)  for  the
      grant of special leave  to  appeal  from  an  order  of  acquittal  is
      refused, no appeal from that order of acquittal shall lie  under  sub-
      section (1) or under subsection (2).”


15.   At the outset, it must be noted that as  per  Section  378(3)  appeals
against orders of acquittal which have to be filed in the High  Court  under
Section 378(1)(b) and 378(2)(b) of the Code  cannot  be  entertained  except
with the leave of the High Court. Section 378(1)(a) provides  that,  in  any
case, if an order of acquittal is passed by a Magistrate  in  respect  of  a
cognizable and non-bailable offence the District Magistrate may  direct  the
Public Prosecutor to present an appeal  to  the  court  of  Sessions.   Sub-
Section (1)(b) of  Section  378  provides  that,  in  any  case,  the  State
Government may direct the Public Prosecutor to file an appeal  to  the  High
Court from an original or appellate order of acquittal passed by  any  court
other than a High Court not being an order under clause (a) or an  order  of
acquittal passed by  the Court of Session in revision.    Sub-Section(2)  of
Section 378 refers to orders of acquittal passed in  any  case  investigated
by the Delhi  Special  Police  Establishment  constituted  under  the  Delhi
Special Police Establishment Act, 1946 or by any other agency  empowered  to
make investigation into an offence under any  Central  Act  other  than  the
Code.  This provision is similar to  sub-section(1)  except  that  here  the
words ‘State Government’ are substituted by the words ‘Central  Government’.


16.   If we analyse Section 378(1)(a) & (b), it  is  clear  that  the  State
Government cannot direct the Public Prosecutor to file an appeal against  an
order of acquittal passed by a Magistrate  in respect of  a  cognizable  and
non-bailable offence because of  the  categorical  bar  created  by  Section
378(1)(b).  Such appeals,  that  is  appeals  against  orders  of  acquittal
passed by a Magistrate in respect of a cognizable and  non-bailable  offence
can only be filed in the Sessions  Court  at  the  instance  of  the  Public
Prosecutor as directed by the District Magistrate.  Section  378(1)(b)  uses
the words “in any case” but leaves out  orders  of  acquittal  passed  by  a
Magistrate in respect of a cognizable  and  non-bailable  offence  from  the
control of the State  Government.   Therefore,  in  all  other  cases  where
orders  of  acquittal  are  passed  appeals  can  be  filed  by  the  Public
Prosecutor as directed by the State Government to the High Court.

17.   Sub-Section (4) of Section 378 makes provision for appeal  against  an
order of acquittal passed in case  instituted  upon  complaint.   It  states
that in such case if the complainant makes an application to the High  Court
and the High Court grants special  leave  to  appeal,  the  complainant  may
present such an appeal to  the  High  Court.   This  sub-section  speaks  of
‘special leave’ as against sub-section (3) relating to other  appeals  which
speaks  of  ‘leave’.   Thus,  complainant’s  appeal  against  an  order   of
acquittal is a category by itself.   The  complainant  could  be  a  private
person or a public servant.  This is  evident  from  sub-section  (5)  which
refers to application filed for  ‘special  leave’  by  the  complainant.  It
grants six months period of limitation to a  complainant  who  is  a  public
servant and sixty days in every other  case  for  filing  application.  Sub-
Section (6) is important.  It states  that  if  in  any  case  complainant’s
application for ‘special leave’ under sub-Section (4) is refused  no  appeal
from order of acquittal shall  lie  under  sub-section  (1)  or  under  sub-
section (2).  Thus, if ‘special leave’ is not granted to the complainant  to
appeal against an order of acquittal the matter  must  end  there.   Neither
the District Magistrate not the State Government  can  appeal  against  that
order of acquittal. The idea appears to be to accord quietus to the case  in
such a situation.

18.   Since the words ‘police report’ are dropped from  Section  378(1)  (a)
despite the Law Commission’s recommendation, it is not  necessary  to  dwell
on it. A police report is defined under Section 2(r) of the Code to  mean  a
report forwarded by a police officer to a Magistrate under  sub-section  (2)
of Section 173 of the Code.  It is a culmination  of  investigation  by  the
police into an offence after receiving information of a cognizable or a non-
cognizable  offence.   Section  2(d)  defines  a  complaint  to   mean   any
allegation made orally or in writing to a Magistrate  with  a  view  to  his
taking action under the Code, that some person,  whether  known  or  unknown
has  committed  an  offence,  but  does  not  include   a   police   report.
Explanation to Section 2(d) states that a report made by  a  police  officer
in a case which discloses after investigation,  the  commission  of  a  non-
cognizable offence shall be  deemed  to  be  a  complaint,  and  the  police
officer by whom such report is made shall be deemed to be  the  complainant.
Sometimes investigation into cognizable offence conducted under Section  154
of the Code may culminate into a complaint case (cases  under  the  Drugs  &
Cosmetics Act, 1940).  Under the PFA Act, cases are instituted on filing  of
a complaint before the Court of  Metropolitan  Magistrate  as  specified  in
Section 20 of  the  PFA  Act  and  offences  under  the  PFA  Act  are  both
cognizable and non-cognizable.  Thus, whether a case is  a  case  instituted
on a complaint depends on the  legal  provisions  relating  to  the  offence
involved therein.  But once it is a case instituted on a  complaint  and  an
order of acquittal is passed,  whether  the  offence  be  bailable  or  non-
bailable,  cognizable  or  non-cognizable,  the  complainant  can  file   an
application under Section 378(4) for special leave to appeal against  it  in
the High Court.  Section 378(4) places no restriction  on  the  complainant.
So far as the State is concerned, as per Section 378(1)(b), it  can  in  any
case, that is even in a case instituted on a complaint,  direct  the  Public
Prosecutor to file  an  appeal  to  the  High  Court  from  an  original  or
appellate order of acquittal passed by any  court  other  than  High  Court.
But there is,  as  stated  by  us  hereinabove,  an  important  inbuilt  and
categorical restriction on the State’s power.  It cannot direct  the  Public
Prosecutor to present an appeal from an  order  of  acquittal  passed  by  a
Magistrate in respect of a cognizable and non-cognizable offence.   In  such
a case the District  Magistrate  may  under  Section  378(1)(a)  direct  the
Public Prosecutor to file an appeal to the Session Court.  This  appears  to
be the right approach and correct  interpretation  of  Section  378  of  the
Code.

19.   Mr. Malhotra is right in submitting that it is only when  Section  417
of  the  Criminal  Procedure  Code,  1898  was  amended  in  1955  that  the
complainant was given a right to seek special leave from the High  Court  to
file an appeal to challenge an acquittal order.  Section  417  was  replaced
by Section 378 in the Code.  It  contained  similar  provision.   But,  Act
No.25 of 2005 brought about a major amendment in the  Code.   It  introduced
Section 378(1)(a) which permitted the District Magistrate, in any  case,  to
direct the Public Prosecutor to present an appeal to the  Court  of  Session
from an  order  of  acquittal  passed  by  a  Magistrate  in  respect  of  a
cognizable and non-bailable offence.  For the first  time  a  provision  was
introduced whereunder an appeal against  an  order  of  acquittal  could  be
filed in the Sessions Court.  Such appeals were restricted to orders  passed
by a Magistrate in cognizable and non-bailable offences.  Section  378(1)(b)
specifically and in clear words placed a restriction on  the  State’s  right
to file such appeals.  It states that  the  State  Government  may,  in  any
case, direct the Public Prosecutor to present an appeal to  the  High  Court
from an original or appellate order of acquittal passed by any  court  other
than a High Court not being an  order  under  clause  (a)  or  an  order  of
acquittal passed by  the  Sessions  Court  in  revision.   Thus,  the  State
Government cannot present an appeal against an order of acquittal passed  by
a Magistrate in respect of a cognizable and non-bailable offence.   We  have
already noted Clause 37 of the 154th Report of the Law Commission  of  India
and Clause 37 of the Code  of  Criminal  Procedure  (Amendment)  Bill,  1994
which state that in order to guard against the arbitrary exercise  of  power
and to reduce reckless acquittals Section 378 was sought to  be  amended  to
provide appeal against an order of  acquittal  passed  by  a  Magistrate  in
respect of cognizable and non-bailable offence.  Thus, this  step  is  taken
by the legislature to check arbitrary and reckless acquittals.   It  appears
that being conscious of rise in unmerited acquittals,  in  case  of  certain
acquittals, the legislature has enabled the District  Magistrate  to  direct
the Public Prosecutor to present an appeal to the  Sessions  Court,  thereby
avoiding the tedious and time consuming procedure of approaching  the  State
with a proposal, getting it sanctioned and then filing an appeal.

20.   It is true that the State has an overall  control  over  the  law  and
order and public order of the area under  its  jurisdiction.
Till  Section
378 was amended by Act 25 of 2005 the State  could  prefer  appeals  against
all acquittal orders.
But the major amendment made in Section  378  by  Act
25 of 2005 cannot be ignored.  It has a purpose.   
It  does  not  throw  the
concern of security of the community  to  the  winds.   
In  fact,  it  makes
filing of appeals against certain types of  acquittal  orders  described  in
Section 378(1)(a) easier, less cumbersome  and  less  time  consuming.  
 The
judgments cited by Mr. Malhotra pertain  to  Section  417  of  the  Criminal
Procedure Code, 1898 and Section 378 prior to its amendment  by  Act  25  of
2005 and will, therefore, have no relevance to the present case.

21.   In view of the above, we conclude  that  a  complainant  can  file  an
application for special leave to appeal against an  order  of  acquittal  of any kind only to the  High  Court.   He  cannot  file  such  appeal  in  the Sessions Court.   
In  the  instant  case  the  complaint  alleging  offences
punishable under Section 16(1)(1A) read with Section 7 of the  PFA  Act  and
the Rules is filed by  complainant  Shri  Jaiswal,  Local  Health  Authority
through  Delhi  Administration.   
The  appellant  was   acquitted   by   the
Metropolitan Magistrate, Patiala House Courts, New Delhi.   
The  complainant
can challenge the order of acquittal by filing an  application  for  special
leave to appeal in the Delhi High Court  and  not  in  the  Sessions  Court.
Therefore, the impugned order holding that this  case  is  not  governed  by
Section 378(4) of the Code is quashed and set aside.  In  the  circumstances
the appeal is allowed.

                                                       ……………………………………………..J.
                                         (AFTAB ALAM)



                                                       ……………………………………………..J.
                             (RANJANA PRAKASH DESAI)


NEW DELHI,
JANUARY 8, 2013.

-----------------------
[1]    1976 (1) SCC 385
[2]    2001(10) SCC 372
[3]    1973(2) SCC 583
[4]    1970 AWR 288
[5]    1988 (2) KLT 205
[6]    1959 AIR (Kant) 106
[7]    1976 (Mah.) LJ 475
[8]    1986 (90) PLR 466
[9]    1987 Cri.L.J. 612

-----------------------
22

whether the plaintiffs could be said to have established its case, particularly when the defendant had denied the factum of borrowing any sum and the signatures on the cash book and no evidence including document/finger print expert was led by the plaintiffs to establish the signatures of the defendant in the account books; “One more principle needs to be kept in mind. Accounts regularly maintained in the course of business are to be taken as correct unless there are strong and sufficient reasons to indicate that they are unreliable.” 29. Applying the said principle to the pleadings and the evidence on record, we find no reason that the books of accounts maintained by the plaintiff firm in the regular course of business should have been rejected without any kind of rebuttal or discarded without any reason. 30. In view of the aforesaid analysis, we conclude and hold that the High Court has erroneously recorded that the findings returned by the courts below are perverse and warranted interference and, therefore, the judgment rendered by it is legally unsustainable and, accordingly, we allow the appeal, set aside the judgment of the High Court and restore that of the courts below. In the facts and circumstances of the case, there shall be no order as to costs.

                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                        CIVIL APPEAL NO. 130  OF 2013
                (Arising out of S.L.P. (C) No. 13950 of 2009)


M/s. Gian Chand & Brothers and Another  ... Appellants

                                   Versus

Rattan Lal @ Rattan Singh                      ...Respondent






                               J U D G M E N T


Dipak Misra, J.



      Leave granted.
   2. In this appeal, the assail is to the legal soundness of  the  judgment
      and decree dated 26.2.2009 in R.S.A. No. 1570 of 2008  passed  by  the
      learned single Judge of the  High  Court  of  Punjab  and  Haryana  at
      Chandigarh  whereby  it  overturned  the  decision  of   the   learned
      Additional District Judge, Kurukshetra in Civil Appeal No. 96 of  2006
      dated 12.03.2008 wherein the  judgment  and  decree  dated  20.07.2006
      passed by the learned Additional Civil Judge  (Sr.  Division),  Pehowa
      was partially modified.

   3. The facts which are necessary to be stated are  that
the  plaintiffs-
      appellants (hereinafter referred to as “plaintiffs”) had  initiated  a
      civil action forming the subject matter of CS No. 337 of 2004  in  the
      court of Additional Civil Judge (Sr. Division), Pehowa for recovery of
      a total sum of Rs.10,45,620/- along  with  pendente  lite  and  future
      interest at @18% per annum.  
It was the case of  the  plaintiffs  that
      plaintiff No. 1 is a registered partnership firm carrying the business
      of commission agent for sale and purchase of food grains in  Shop  No.
      69, New Green Market at Anaj Mandi in Pehowa and plaintiff  No.  2  is
      the partner of the said partnership firm.  
The plaintiff firm advances
      money to the agriculturists and charges commission on the  sale  price
      of  the  agricultural  produce  sold  as  determined  by  the   market
      committee.  
For the aforesaid purpose, it  has  been  maintaining  the
      books of accounts in the regular course of business.  
The  respondent-
      defendant (hereinafter  referred  to  as  “the  defendant”)  had  been
      maintaining  regular  and  long  standing  current  account  with  the
      plaintiffs.
The defendant had taken advance from time  to  time  from
      the plaintiffs which he had promised to return  at  the  shop  of  the
      plaintiffs.
All the transactions between the parties  were entered in the books of accounts which reflected that as on 30.4.2002, a  sum  of Rs.5,80,000/- stood in the name of the defendant  towards  outstanding balance and he had acknowledged the same under his  signature  in  the corresponding account entry in the account books  of  the  plaintiffs.
     
The defendant neither returned the money nor brought any  agricultural
      produce for sale to the shop of the plaintiffs  till  27.5.2003.
 The
      plaintiffs served a legal notice on 26.2.2004 on the defendant to make
      good the payment and also made repeated requests requiring him to  pay
      the dues, but all requests and demands went in vain and eventually, on
      18.8.2004, he refused to comply with the request.
Being put in such a
      situation, the plaintiffs were compelled  to  institute  the  suit  on
      19.8.2004 wherein they claimed Rs.9,72,670/- which included the  total
      amount lent to the defendant at various times and Rs.72,950/-  towards
      interest till the date of filing  of  the  suit  and  further  claimed
      pendente lite and future interest @ 18% per annum.
Be it  noted,  the
      borrowings for  the  financial  years  2002-2003  and  2003-2004  were
      reflected in the “rokar bahi”.

   4. A written statement was filed by the defendant which consisted of  two
      parts, namely, preliminary objections and reply  on  merits.
 In  the
      preliminary  objections,  it  was  stated  that  the  suit   was   not
      maintainable;
that the father of the defendant was a customer  of  the
      plaintiffs’ firm  but  the  defendant  had  nothing  to  do  with  the
      plaintiffs;
that if there was any liability, it was of  Kewal  Krishan
      and not of the defendant;
that the plaintiffs had no locus  standi  to
      file the suit and it was defective for  non-joinder  of  parties;  and
      that no cause of action arose against the defendant.
As  far  as  the
      merits are concerned, reference was made to  every  paragraph  of  the
      plaint and in oppugnation, it was stated that some  of  the  averments
      were false.
As  far  as  the  other  averments  were  concerned,  the
      defendant denied them due to lack of knowledge.

   5. The learned trial Judge, on the basis of the  pleadings,  framed  five
      issues.  The principal issues that were really  addressed  on  contest
      were
whether the plaintiff  was  entitled  to  recover  an  amount  of
      Rs.10,45,620/- along with interest pendente lite and future interest @
      18% per annum;  
that  whether  the  suit  of  the  plaintiff  was  not
      maintainable in the present form; 
that whether the  plaintiff  had  no
      locus standi and cause of action to file and maintain  the  suit;  and
      
that whether the suit of the plaintiff  was  bad  for  non-joinder  of
      necessary parties.

   6. Be it noted, on behalf of the plaintiffs including the partner of  the
      plaintiffs’ firm, three witnesses  were  examined  and  13  documents,
      namely, copy of ledger, bahi, copy of ledger of S.T./C.S.T.,  copy  of
      Form-A, Form-C, copy of resolution dated 31.10.1993 and  copy  of  the
      certificate dated 28.07.2005 were brought in the evidence  and  marked
      as exhibits.  The defendant examined  himself  as  DW-1  and  did  not
      produce any documentary evidence.

   7. The learned trial Judge, considering the evidence on record,  came  to
      hold that the  plaintiffs had been able to establish
 that the firm was
      engaged in the business of a commission agent which lends money to the
      agriculturists;
that the business transaction  with  the   plaintiff’s
      firm had not been denied by the defendant;
 that the bahi  entries  had
      been produced on record by the  plaintiffs to show that the amount was advanced to the defendant and the  said  entries  had  the  stamp  and signatures of the  defendant;
that the  plea of the defendant that his
      signatures on the bahi entries were fraudulently obtained had not been
      substantiated; that the transactions  in  dispute  were  numerous  and
      extended over a number of years and there was no reason  not  to  lend
      credence to the  genuineness  of  the  books  of  accounts;
that  the
      plaintiffs had the locus standi to file the  suit  and  the  cause  of
      action had arisen to initiate a civil action and
that  the  plea  that
      the suit was defective for non-joinder of parties had really not  been
      pressed.
Being of this view, the learned trial Judge opined that  the
      plaintiffs were entitled to recover the amount of Rs.10,45,620/- along
      with  pendente  lite  and  future  interest  @  6%  per   annum   and,
      accordingly, decreed the suit.

   8. Grieved by the aforesaid judgment and decree, 
the  defendant preferred
      a Civil Appeal wherein it was contended that 
when  the  signatures  in
      the books of accounts were denied, it was obligatory on  the  part  of
      the plaintiffs to get the same examined by a handwriting expert;  that
      the signatures in the  books  of  accounts  had  been  forged  by  the
      plaintiffs; that certain entries did not bear the  signatures  of  the
      defendant; that the plaintiffs had failed to  show  why  such  a  huge
      amount had been advanced to the  defendant; and that the learned trial
      Judge had fallen into error by decreeing the suit of the plaintiffs.

   9. The first appellate court, considering the contentions  raised  before
      it,
came to hold that the plaintiffs had placed reliance on the ledger
      entries which were maintained in the regular course of business;
 that
      from Exhibit P-2, it was vivid that a sum of Rs.5,80,000/-  was  taken
      in cash by the defendant and it had his signatures and
that the aspect
      of forgery has not been pleaded and, in any case, had not been  proven
      at all; and
 that except two entries,  namely, Exh. P-4  and  P-9,  the
      defendant had signed in all the entries which were maintained  in  the
      regular course of business;
 that the written statement was  absolutely
      evasive and no plea of forgery being taken,  the  challenge  that  the
      signatures were obtained fraudulently or by any other method or  undue
      relationship did not warrant consideration and, in any case, the  onus
      did lie on the defendant which was not discharged.

  10. On the aforesaid base, it opined that the plaintiffs were entitled  to
      recover the amount excluding the sums covered under those two  entries
      along with proportionate interest and, accordingly, partly allowed the
      appeal and modified the judgment  and  decree  of  the  learned  trial
      Judge.

  11. Being dissatisfied, the defendant  preferred  second  appeal  and  the
      learned single Judge framed four substantial questions of law, namely,
     
(i) whether a suit for recovery could be decreed  when  the  pleadings
      and evidence led by the plaintiffs were at substantial variance;  

(ii) whether the plaintiffs could be said to  have  established  its  case,
      particularly when the defendant had denied the factum of borrowing any
      sum and the signatures on the cash  book  and  no  evidence  including
      document/finger print expert was led by the  plaintiffs  to  establish
      the signatures of the defendant in the account books;
 (iii) whether it was obligatory on the part of  the  plaintiff  to  prove  the  alleged
      signatures of the defendant in  the  cash  book  when  they  had  been
      disputed; and 
(iv) whether the admission of  the  defendant  could  be
      assumed in the absence of clear and unambiguous admission of the party
      to the litigation.

  12. The High Court referred to paragraphs  6  and  7  of  the  plaint  and
      Exhibits P-1, P-2, P-3, P-7, P-9 and P-10 and noticed the variance  of
      the amounts  mentioned  therein  and  further  opined  that  when  the
      signatures had been denied, the onus was on the plaintiffs to  examine
      a handwriting expert to establish the veracity of  the  signatures  to
      bring home the plea set up by the plaintiffs in the plaint.   It  also
      ruled that the courts below had fallen into error in holding that  the
      onus to prove  the  falsity  was  on  the  defendant.   Analyzing  the
      documents and evidence, the learned single Judge came to hold that the
      averments as pleaded in the plaint and the evidence in support thereof
      were at variance with each other and the evidence did not substantiate
      the claim and the onus to prove the accounts and rokar bahi having not
      been discharged, the judgments of the fora below  were  unsustainable.
      Hence, the present appeal.
  13. We have heard Mr. Gautam Narayan, learned counsel for the  appellants.
      Despite service of notice, there has been no appearance on  behalf  of
      the respondent.

  14. On a careful reading of the judgment, it is noticeable that  the  High
      Court has observed that the findings returned by the courts below  are
      perverse and, accordingly, jurisdiction under Section 100 of the  Code
      of Civil Procedure  could  be  exercised.   The  perversity  has  been
      noticed on two counts,  namely,  incorrect  placing  of  onus  on  the
      defendant to prove that the signatures had been forged  more  so  when
      there was denial of the same and second, the variance in the pleadings
      and  the  evidence  as  regards  the  amounts  in  question  were  not
      appositely taken note of.  Thus, we are required to  see  whether  the
      approach of the learned single Judge in annulling the judgments of the
      courts below is correct on the aforesaid grounds which,  according  to
      him, reflect perversity of approach.

  15. First, we shall deal with the onus to  prove  in  such  a  case.   The
      plaintiffs, in paragraphs 4 and 5 of the  plaint,  have  categorically
      asseverated that the defendant used to avail advance  money  from  the
      plaintiffs with the promise to bring his agriculture produce for  sale
      at their shop and the said amount had been duly entered in  the  books
      of accounts which the defendant had acknowledged under his  signatures
      in the corresponding entries.  The Accountant of the firm,  PW-1,  has
      proved various entries and they have been marked as  exhibits.   There
      had been no objection when the signatures were stated to  be  that  of
      the defendant.  It is admitted by him that Exh. P-9 did not  bear  the
      signature of the defendant.  It is worthy to  note  that  nothing  has
      been put to him in the cross-examination about  the  signatures.   The
      partner of the  firm,  PW-2,  has  testified  the  signatures  in  the
      entries.  He has clearly stated that  he  was  able  to  identify  the
      signatures.  The defendant had examined himself as DW-1 and  had  only
      stated that he had no dealings with the plaintiffs but his father  was
      a customer of the firm.  He had disputed to have signed  any  entries.
      In the cross-examination,  he  has  admitted  his  signatures  on  the
      written statement and stated that he did not remember whether  at  the
      time of purchase, his signatures were taken or not.
  16. As noticed earlier, the High  Court  has  held  that  the  fora  below
      erroneously  placed  the  onus  on  the  defendant  to  disprove   his
      signatures.  On a careful scrutiny of the  evidence,  it  is  manifest
      that the signatures are proven by the witnesses  and  they  have  been
      marked as exhibits without any objection.  It is interesting  to  note
      that in paragraphs 6 and 7 of the plaint,  it  was  averred  that  the
      defendant had given the acknowledgement of amount under his  signature
      in the corresponding entry in the books of accounts.   While  replying
      to the same, the defendant has said that the arguments in  para  6  of
      the plaint are wrong and denied in view of the preliminary objections.
       It is apt to note that the preliminary objections pertained  to  bald
      denial of liability, lack of locus  standi  to  file  the  suit,  non-
      joinder of parties and lack of cause of action.  Thus,  there  was  no
      plea whatsoever as regards the denial of  signature  or  any  kind  of
      forgery or fraud.  The High Court, as we find, has observed  that  the
      plaintiffs should have examined a handwriting expert.  The  plaintiffs
      had asserted that there was an acknowledgement under the signatures of
      the defendant.  There  was  no  denial  by  the  defendant  about  the
      signatures; and further, the acknowledgements had been proven  without
      objection.   Only  in  the  examination-in-chief,  the  defendant  had
      disputed the signature and in the cross-examination he has mercurially
      deposed that he does not remember to have signed at the  time  of  any
      purchase.

  17. It is well settled principle of  law  that  a  person  who  asserts  a
      particular fact is required to affirmatively establish  it.   In  Anil
      Rishi v. Gurbaksh Singh[1], it  has  been  held  that  the  burden  of
      proving the facts rests on the party  who  substantially  asserts  the
      affirmative issues and not the  party  who  denies  it  and  the  said
      principle may not be universal in its application and there may be  an
      exception thereto.  The purpose of referring to the same  is  that  if
      the  plaintiff  asserts  that  the  defendant  had  acknowledged   the
      signature, it is obligatory on his part to substantiate the same.  But
      the question would be what would be the  consequence  in  a  situation
      where the signatures are proven and there is an evasive reply  in  the
      written statement and what should be construed as  substantiating  the
      assertion made by the plaintiff.

  18. In Krishna Mohan Kul v. Pratima Maity and others[2], it has been ruled
      thus: -
           “When fraud, misrepresentation or undue influence is alleged  by
           a party in a suit, normally, the burden is on him to prove  such
           fraud, undue influence or misrepresentation.”


  19. In Shashi Kumar Banerjee and others v. Subodh  Kumar  Bannerjee  since
      deceased and after him his  legal  representatives  and  others[3],  a
      Constitution Bench of this Court, while dealing with a mode  of  proof
      of a will under the Indian Succession Act,  observed  that  where  the
      caveator alleges undue influence, fraud and coercion, the onus  is  on
      him to prove the same.

  20. In A. Raghavamma and another v. A. Chenchamma  and  another[4],  while
      making a distinction between burden of proof  and  onus  of  proof,  a
      three-Judge Bench opined thus: -
           “There is an essential distinction between burden of  proof  and
           onus of proof : burden of proof lies upon the person who has  to
           prove a fact and it never shifts, but the onus of proof  shifts.
           The burden of proof in the present case  undoubtedly  lies  upon
           the plaintiff to establish the factum of adoption  and  that  of
           partition.  The said circumstances do not alter the incidence of
           the burden of proof.  Such considerations, having regard to  the
           circumstances of a particular case, may shift the onus of proof.
            Such a  shifting  of  onus  is  a  continuous  process  in  the
           evaluation of evidence.”


  21. The present case is not one such case where the plaintiffs have chosen
      not to adduce any evidence.   They  have  examined  witnesses,  proven
      entries in the books of accounts and also proven the  acknowledgements
      duly signed by the defendant.  The defendant, on the contrary,  except
      making a bald denial of the averments, had not stated  anything  else.
      That apart, nothing was put to the witnesses in the  cross-examination
      when the documents were exhibited.  He only came with a spacious  plea
      in his evidence which was not pleaded.  Thus, we have no hesitation in
      holding that the High Court has fallen into error in holding  that  it
      was  obligatory  on  the  part  of  the  plaintiffs  to  examine   the
      handwriting expert to prove the  signatures.   The  finding  that  the
      plaintiffs  had  failed  to  discharge  the   burden   is   absolutely
      misconceived in the facts of the case.

  22. The said aspect can be looked from another angle.  Rules 3, 4 and 5 of
      Order VIII form an integral code dealing  with  the  manner  in  which
      allegations of fact in the plaint should be traversed  and  the  legal
      consequences flowing from its non-compliance.  It is obligatory on the
      part of the defendant to specifically deal with each allegation in the
      plaint and when the defendant denies any such fact, he must not do  so
      evasively but answer the point of substance.  It is clearly postulated
      therein that it shall not  be  sufficient  for  a  defendant  to  deny
      generally the grounds  alleged  by  the  plaintiffs  but  he  must  be
      specific with each allegation of fact (see Badat and  Co.,  Bombay  v.
      East India Trading Co.[5]).

  23. Rule 4 stipulates that a defendant must not evasively answer the point
      of substance.  It is alleged that if he  receives  a  certain  sum  of
      money, it shall not be  sufficient  to  deny  that  he  received  that
      particular amount, but he must deny that he received that sum  or  any
      part thereof, or else set out how much he received,  and  that  if  an
      allegation is  made  with  diverse  circumstances,  it  shall  not  be
      sufficient to deny it along with those circumstances.   Rule  5  deals
      with specific denial and clearly lays down that  every  allegation  of
      fact in the  plaint,  if  not  denied  specifically  or  by  necessary
      implication, or stated to be not  admitted  in  the  pleading  of  the
      defendant, shall be taken to be admitted against him.

  24. We have referred to the aforesaid Rules of pleading only to  highlight
      that in the written statement, there was  absolutely  evasive  denial.
      We are not proceeding to state whether there was admission or not, but
      where there is total evasive denial and an attempt has  been  made  to
      make out a case in adducing the evidence that he was not aware whether
      the signatures were taken or not, it  is  not  permissible.   In  this
      context, we may profitably refer to  a  two-Judge  Bench  decision  in
      Sushil Kumar v.  Rakesh  Kumar[6]  wherein,  while  dealing  with  the
      pleadings of election case, this Court has held thus: -

           “73.  In our opinion, the approach of the  High  Court  was  not
           correct.  It failed to apply the legal principles  as  contained
           in Order 8 Rule 3 and 5 of the Code  of  Civil  Procedure.   The
           High Court had also not analysed the evidence adduced on  behalf
           of the appellant in this behalf in detail  but  merely  rejected
           the same summarily stating that vague statements had  been  made
           by some witnesses.  Once it is held that the statements made  in
           paragraph 18 of the election petition have not been specifically
           denied or disputed in the  written  statement,  the  allegations
           made therein would be deemed to have been admitted,  and,  thus,
           no evidence contrary thereto  or  inconsistent  therewith  could
           have been permitted to be laid.”




  25. We may state with profit that in the said case, reliance was placed on
      Badat and Co. v. East India Trading Co. (supra).

  26. Scrutinized thus,  the  irresistible  conclusion  would  be  that  the
      defendants could not have been permitted to  lead  any  evidence  when
      nothing was stated in the pleadings.  The courts below  had  correctly
      rested the burden of proof on the defendant but the High Court, in  an
      erroneous impression, has overturned the said finding.

  27. Another aspect which impressed the High Court was the variance in  the
      pleadings in the plaint and the evidence adduced  by  the  plaintiffs.
      To appreciate the said conclusion, we have keenly perused paragraphs 6
      and 7 of the plaint  and  the  evidence  brought  on  record.   It  is
      noticeable that there is some variance but, as we  perceive,  we  find
      that the variance is absolutely very little.  In fact,  there  is  one
      variation, i.e., at one time, it is mentioned as  Rs.6,64,670  whereas
      in the pleading, it has been stated as Rs.6,24,670 and there  is  some
      difference with regard to the date.  In our considered  view,  such  a
      variance does not remotely cause prejudice  to  the  defendant.   That
      apart, it does not take him by any kind of surprise.  In Celina Coelho
      Pereira (Ms) and others v. Ulhas Mahabaleshwar Kholkar and  others[7],
      the High Court had non-suited the landlord on the ground that  he  had
      not pleaded that the  business  of  the  firm  was  conducted  by  its
      partners, but by two other persons and that the tenant had parted with
      the premises by sub-letting them to the said  two  persons  under  the
      garb of deed of partnership by constituting a bogus firm.  This  Court
      observed that there is substantial pleading to that effect.  The  true
      test, the two-Judge Bench observed, was whether  the  other  side  has
      been taken by surprise or prejudice has been caused to  him.   In  all
      circumstances, it cannot be said  that  because  of  variance  between
      pleading and proof, the rule of secundum allegata et probate would  be
      strictly applicable.  In the present case, we  are  inclined  to  hold
      that it cannot be said that the evidence  is  not  in  line  with  the
      pleading  and  in  total  variance  with  it  or  there   is   virtual
      contradiction.  Thus, the finding returned by the High Court  on  this
      score is unacceptable.

  28. The next aspect which requires to be addressed is whether the books of
      accounts could have been rejected by the High Court on the ground that
      the entries had not been proven due to dispute of signatures solely on
      the foundation that the plaintiff had  not  examined  the  handwriting
      expert when there was a denial of  the  signature.   We  have  already
      dealt with the factum of signature, the pleading and the substance  in
      the evidence.  The plaintiff No. 2, his accountant and  other  witness
      have categorically  stated  that  the  books  of  accounts  have  been
      maintained in the regular course of business.  The same has  not  been
      disputed by the defendant.  In such a circumstance, we may  profitably
      reproduce a few lines  from
Commissioner  of  Income  Tax,  Delhi  v.
      Woodward Governor India Private Limited[8]: -

           “One  more  principle  needs  to  be  kept  in  mind.   Accounts
           regularly maintained in the course of business are to  be  taken
           as correct unless there are strong  and  sufficient  reasons  to
           indicate that they are unreliable.”




  29. Applying the said principle to  the  pleadings  and  the  evidence  on
      record, we find no reason that the books of accounts maintained by the
      plaintiff firm in the regular course  of  business  should  have  been
      rejected without any kind of rebuttal or discarded without any reason.

  30. In view of the aforesaid analysis, we conclude and hold that the  High
      Court has erroneously recorded  that  the  findings  returned  by  the
      courts below are perverse and warranted interference  and,  therefore,
      the judgment rendered by it is legally unsustainable and, accordingly,
      we allow the appeal, set aside the judgment  of  the  High  Court  and
      restore that of the courts below.  In the facts and  circumstances  of
      the case, there shall be no order as to costs.



                                                             ……………………………….J.
                            [K. S. Radhakrishnan]



                                                             ……………………………….J.
                                                     [Dipak Misra]

New Delhi;
January 08, 2013


-----------------------
[1]    (2006) 5 SCC 558
[2]    (2004) 9 SCC 468
[3]    AIR 1964 SC 529
[4]    AIR 1964 SC 136
[5]    AIR 1964 SC 538
[6]    (2003) 8 SCC 673
[7]    (2010) 1 SCC 217
[8]    (2009) 13 SCC 1

-----------------------
21

service matter -The 1st Respondent herein, who figured as rank no. 3 in the Supplementary list, filed Writ Petition No. 34851 of 2010 seeking a Writ of Mandamus, directing the Commission to issue an advise memo for his appointment for the post of Higher Secondary School Teacher-English (Junior) in a vacancy occurred due to non-joining of 2nd respondent herein.= We are of the view that the Division Bench has completely overlooked the ratio laid down by this Court in N.S.S. case (supra). Paragraph 19 of the judgment has clearly interpreted Rule 2(g) of the Kerala Public Commission Rules and Procedures, which is extracted below for easy reference: 19. The above definition shows that there is only one ranked list. Therefore, the supplementary list prepared by KPSC to satisfy the rules of reservation has, in fact, no statutory backing. For that reason when the main list is exhausted or expired, supplementary list cannot be allowed to operate. If the supplementary list alone is allowed to operate it would amount to giving greater sanctity to it and long life than the main list prepared in accordance with the Rules. Secondly, after the expiry or exhaustion of the main list if the supplementary list is operated it would violate the first proviso to Rule 15(c) of the General Rules. The reason is that the NJD vacancies in respect of OBC candidates cannot be filled up after the expiry or exhaustion of the main list and only reserved candidates can be advised from the supplementary list which would violate 50% rule as no OC category candidates could be advised. We are, therefore, of the view that the contention of the learned senior counsel appearing for the appellant that the Division Bench of the High Court has committed an error in directing the Commission to operate the supplementary list is sustainable. Appeal is, therefore, allowed and the judgment of the Division Bench of the High Court is set aside.

                                                                  REPORTABLE
                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION
                       CIVIL APPEAL NO. 129   OF 2013
                [Arising out of SLP (Civil) No. 1107 of 2012]
The Secretary, Kerala Public Service Commission  .. Appellant
                                   Versus
Sheeja P.R. and Another                                 .. Respondents

                               J U D G M E N T
K. S. Radhakrishnan, J.

1.    Leave granted.

2.    The Kerala Public Service Commission (in short “the  Commission”)  has
approached this Court aggrieved by the  directions  given  by  the  Division
Bench of the Kerala High Court, to operate the supplementary list after  the
main list got exhausted.

3.    The  1st  Respondent  herein,  who  figured  as  rank  no.  3  in  the
Supplementary list, filed Writ Petition No. 34851 of 2010 seeking a Writ  of
Mandamus,  directing  the  Commission  to  issue  an  advise  memo  for  his
appointment  for  the  post  of  Higher  Secondary  School   Teacher-English
(Junior) in a vacancy occurred due to non-joining of 2nd respondent  herein.
 Learned Single Judge of the High  Court  dismissed  the  writ  petition  on
9.12.2010 holding that once the main list got exhausted,  the  supplementary
list could not be kept alive.  Review Petition No. 89 of 2011 filed  against
the judgment was also dismissed.

4.    Aggrieved by the said  judgment,  1st  respondent  herein  filed  Writ
Appeal No. 871 of 2011 before the Division Bench of the Kerala  High  Court.
It  was  contended  that  1st  respondent  had  secured  3rd  rank  in   the
supplementary  list  and  he  was  entitled  to  get  appointment   in   the
reservation quota of Ezhava community.
Further, it  was  also  pointed  out
that 2nd respondent belonging to the same  community,  though  advised,  did
not join duty since she had got  another  employment.    The  claim  of  1st
respondent was that, since he was the next candidate, was  eligible  to  get
advise memo from the Commission so that he could joint in  that  non-joining
vacancy.  The Division Bench of the High Court took the view that since  2nd
respondent did not join, the 1st respondent  should  have  been  issued  the
advise memo by the Commission.  Holding so, the writ appeal was allowed  and
the order passed in Review Petition No. 89 of 2011 and the  judgment  passed
in Writ Petition No. 34581 of 2010, were set aside.      
Aggrieved  by  the
said judgment, the Commission has come up with this appeal.

5.    Shri V. Giri, learned senior counsel  appearing  for  the  Commission,
submitted that the issue raised in this case  is  squarely  covered  by  the
judgment of this Court in Nair Service Society v. District  Officer,  Kerala
Public Service Commission (2003) 12 SCC 10  (N.S.S.  case).  
Referring  to
paragraphs 25 and 36 of that  judgment,  learned  senior  counsel  submitted
that
once the main list is exhausted, the supplementary  list  has  no  life
and that the Division Bench has not properly  appreciated  paragraph  23  of
N.S.S. case. Learned senior counsel also submitted that the  Division  Bench
has not properly appreciated the scope,  meaning  and  significance  of  the
supplementary list which has been prepared after complying  with  the  Rules
of Reservation.  
Learned senior counsel  pointed  out  that  if  sufficient
number of candidates belonging to the reserved groups,  including  scheduled
castes and scheduled tribes, are not there in the rank list, it is  possible
that the communities would not be adequately represented in the services  as
envisaged in the rules.  
The Commission has, therefore, evolved a  procedure
of preparing supplementary lists for the reserved  groups  by  lowering  the
marks at the elimination stage of selection, which has been incorporated  in
Part I of the Rules of Procedure  of  the  Commission,  published  with  the
concurrence of the Government.

6.    Shri Jogy Scaria, learned counsel appearing for  the  1st  respondent,
on the other hand, contended that the Division Bench has  correctly  granted
the relief and directed the Commission to appoint 1st respondent in  a  non-
joining vacancy.
 Learned counsel pointed out that the vacancy  arose  while
the main list was in force due to non-joining  of  the  2nd  respondent  and
hence the 1st respondent has a claim over  that  vacancy.   Learned  counsel
also  pointed  out  that  the  Division  Bench  has  correctly  applied  the
principle laid down by this Court in N.S.S. case (supra).

7.    We are of the view that the Division Bench has  completely  overlooked
the ratio laid down by this Court in N.S.S. case (supra).      Paragraph  19
of the judgment has clearly interpreted  Rule  2(g)  of  the  Kerala  Public
Commission  Rules  and  Procedures,  which  is  extracted  below  for   easy
reference:
           19. The above definition shows that there  is  only  one  ranked list. 
Therefore, the supplementary list prepared by  KPSC  to  satisfy the rules of reservation has, in fact, no statutory backing. For  that  reason when the main list is exhausted or expired, supplementary  list  cannot be allowed to operate.  
If  the  supplementary  list  alone  is  allowed to operate it would amount to giving greater  sanctity  to  it  and long life than the main  list  prepared  in  accordance  with  the Rules. 
Secondly, after the expiry or exhaustion of the  main  list  if the supplementary list is operated it would violate the first  proviso to Rule 15(c) of the  General  Rules.
The  reason  is  that  the  NJD
      vacancies in respect of OBC candidates cannot be filled up  after  the
      expiry or exhaustion of the main list and only reserved candidates can
      be advised from the supplementary list which would violate 50% rule as
      no OC category candidates could be advised. 
As rightly contended by Mr
      Venugopal, it would adversely affect the OC  category  candidates  and
      violate the statutory rule. The reason given  by  the  Division  Bench
      that if any NJD vacancy arises in the OC category, the same  could  be
      filled up in the next batch of appointment thereby, the rights  of  OC
      candidates can very well be protected without  any  violation  of  the
      proviso to Rule 15 of KS&SSR is  not  legally  acceptable.
The  above
      reasoning, in our opinion, is  equally  applicable  to  NJD  vacancies
      which arise in the reserved categories as well. By advising candidates
      from the supplementary list, without any opportunity of balancing  the
      advice with an open competition candidate the consequence  would  have
      been a violation of 50:50 rule with a tilt in favour of  the  reserved
      candidates lasting their quota above 50%. The net result is that there
      will be excess reservation over 50% in the year.



8.    The reason for preparation of supplementary list was  also  considered
by this Court in the above mentioned judgment in paragraphs 23 and 24.   The
same are also extracted below for easy reference:

           23. With a view to secure adequate  representation  of  reserved
      communities in the selection and thereby to effectuate the  policy  of
      reservation,  KPSC  prepares  what  it  calls  supplementary  list  of
      candidates for the different reserved communities who will be entitled
      to appointment, comprising of a number equal to  half  the  number  of
      turns as per the quota to each reservation group. Thus if Muslims were
      entitled to ten turns in the list, the supplementary list  of  Muslims
      will comprise  of  at  least  five  Muslims.  The  advantage  of  this
      procedure was that no reservation turn will be  passed  over  to  open
      competition and reservation groups will get the representation due  to
      them, at the same time maintaining the balance of 50:50  between  open
      competition and reservation candidates.


           24. The supplementary list was only in  respect  of  reservation
      categories. There was no supplementary list prepared  in  relation  to
      open competition merit candidates for the reason that where  the  last
      of the candidates has been advised from the  rank  list  in  the  open
      competition,  there  was  no  further  scope  for   drawing   on   the
      supplementary list or advising from  that  list,  as  all  the  advice
      hitherto was  on  the  basis  of  one  open  competition  followed  by
      reservation, thereby  keeping  the  balance  of  50:50.  If  any  more
      candidates are advised from the  supplementary  list,  the  number  of
      reservation candidates will go up and the 50:50 rule will be violated.



9.     This  Court  has  specifically  held  that  once  the  main  list  is
exhausted, the supplementary list has no survival of its own.  In the  light
of the principles laid down by this Court in N.S.S. case  (supra),  we  have
to  examine  the  various  issues  raised  before  us.   The  Commission  on
27.4.2009 finalized the rank list for the post of  Higher  Secondary  School
Teachers-English (Junior), Kerala  Higher  Secondary  Education.   The  main
list consisted of 145 candidates, including persons from open  merit,  OBCs,
Muslims, Sports  and  other  reservation  categories.   1st  respondent  was
placed in the supplementary list as rank no. 3 under the category of  Ezhava
falling under Other Backward  Classes  (OBC).   2nd  respondent  was  placed
above 1st respondent as rank no.2 in the supplementary list.  The rank  list
prepared on 27.4.2009 had expired on 28.9.2010, on the advice  of  the  last
candidate  from  the  main  list.   The  intimation  from   the   Appointing
Authority/the Director, Kerala Higher  Secondary  Education  regarding  non-
joining of the vacancy was received by the  Commission  only  on  12.9.2011,
i.e. one year after the main list got exhausted.  Once  the  main  list  got
exhausted, going by the judgment in N.S.S. case (supra),  the  supplementary
list has no life of its own.  The writ petition was  preferred  by  the  1st
respondent only on 16.11.2010 after the expiry of one year from the date  on
which the main rank list got exhausted.

10.   We are of the view that the situation would have been  different,  had
the NJD vacancies were reported before the main list got exhausted  i.e.  on
28.9.2010.   The  Commission  could  advise  candidates  only  on  receiving
intimation with regard to the non-joining duty  vacancies  before  the  main
list got exhausted.  So far as this  case  is  concerned,  NJD  vacancy  was
reported and received by the Commission only on  12.9.2011,  by  that  time,
the main list got exhausted.   In the absence of the main list, there is  no
independent existence of the supplementary list.

11.   Rule 13 of the K.P.S.C. Rules of procedure says that the ranked  lists
published by the Commission shall remain in force for a period of  one  year
from the date on which it was brought into force.  The list can also  remain
in force till the publication of a new list after the expiry of the  minimum
period of one year or till the expiry of three years whichever  is  earlier.
Rule 13 has five other provisos.   It  is  unnecessary  to  refer  to  those
provisos as far as the present case is  concerned.   We  are  in  this  case
mainly concerned with the question whether the main list  got  exhausted  or
not.  Once the main list becomes empty or drains out on the  advice  of  all
the candidates, it loses its  life;  consequently  supplementary  list  also
automatically vanishes.  It was pointed out that the Commission has got  the
power to extend the life of the main list upto three years  but  that  power
has not been exercised in the present case.  Further, we  may  also  clarify
that there  is  no  provision  in  the  Rules  of  procedure  to  prepare  a
supplementary list for the general category candidates.  Supplementary  list
is prepared only in relation to the reserved category candidates  so  as  to
see that the reservation principle is properly and effectively  implemented.
We, therefore, do not agree with the view expressed by  Justice  S.B.  Sinha
in the concurring judgment in N.S.S. case, that a supplementary list has  to
be prepared for the open category candidates also  as  per  the  proviso  to
Rules 4 and 12.

12.   The point of distinction between the  candidates  of  the  reservation
group  included  in  the  main  list  and   their   counter-parts   of   the
supplementary list, is that former are eligible to  be  considered  both  on
merit and against reservation turns depending upon the number  of  vacancies
and their placement in the main list, while the latter are intended to  fill
in the groups in the reserved turns caused  by  the  paucity  of  candidates
entitled to reservation in  the  main  list.    The  supplementary  list  is
always subject  to  the  main  list.   Therefore,  once  the  main  list  is
exhausted, the supplementary list automatically loses its  significance.   A
supplementary list has no separate existence, dehors the main list.

13.   We are, therefore, of the view that  the  contention  of  the  learned
senior counsel appearing for the appellant that the Division  Bench  of  the
High Court has committed an error in directing  the  Commission  to  operate
the supplementary list is sustainable.  Appeal is,  therefore,  allowed  and
the judgment of the Division Bench of the High Court is set aside.




                                            .................................
                                            ..J.
                                            (K. S. Radhakrishnan)






                                            .................................
                                            ..J.
                                            (Dipak Misra)
New Delhi,
January 8, 2013