Sections 7 and 13(2) of the Prevention of Corruption Act, 1988 - vs- sec.313 Cr.P.C.- Bribe case - alleged that the prosecution failed to prove the demand of Bribe - Trial court acquitted - High court convicted as there is no proper explanation under sec.313 Cr.P.C. for the incriminating circumstances of his presence in complainant's house and about phenolphthalein test including his pant pocket turned pink - Apex court confirmed the judgment of High court -No perversity in the judgement of High court - nothing to interfere - Apex court dismissed the criminal appeal = Phula Singh …..Appellant Versus State of Himachal Pradesh ….. Respondent = 2014 (March . Part) judis.nic.in/supremecourt/filename=41279

Sections 7 and 13(2) of the Prevention of Corruption Act, 1988 - vs- sec.313 Cr.P.C.-
Bribe case - alleged that the prosecution failed to prove the demand of Bribe - Trial court acquitted - High court convicted as there is no proper explanation under sec.313 Cr.P.C. for the incriminating circumstances of his presence in complainant's house and about phenolphthalein test including his pant pocket turned pink - Apex court confirmed the judgment of High court -No perversity in the judgement of High court - nothing to interfere - Apex court dismissed the criminal appeal =
   reversing  the
      judgment and order dated  19.2.2009,  passed  by  Ld.  Special  Judge,
      Hamirpur in Corruption Case No.1 of 2008 acquitting the appellant from
      the Charges under Sections 7 and 13(2) of the Prevention of Corruption
      Act, 1988 (hereinafter referred to as ‘the Act’).  The High Court  has
      awarded the appellant sentence of one year RI and a fine of Rs.10,000/-
       and in default of payment of fine to undergo further RI for a  period
      of six months. =

Admitted facts

 The admitted facts remain that the appellant had no relationship
      or acquaintance with the  complainant  whatsoever  and  the  appellant
      failed to furnish any explanation about his visit and staying  in  the
      house of the complainant.   The appellant has not denied visit to  the
      house of the complainant. More so, he did not furnish any  explanation
      in respect of recovery of Rs.1,000/- from the pocket of his  pant  nor
      he could furnish any information as how his  fingers  turned  pink  on
      being washed, with sodium carbonate solution  as  the  currency  notes
      already  found  in  pocket  of  his  pant  had   been   treated   with
      phenolphthalein. 
On being washed, part of his pant also turned pink.
    Explanation under sec.313 Cr.P.C. is crucial
Even in the statement under Section 313 Cr.P.C.,  the  appellant
      answered every question saying “I do not know” or  “it  is  incorrect”
      but when he was asked as to whether he wanted to say anything else, he
      answered as under:-
           “I am innocent and Prabhat Chand had lodged a false case against
           him, because he had encroached the land of Shri Vakil  Chand  as
           per his demarcation”.
The accused  has  a  duty  to  furnish  an  explanation  in  his
      statement  under  Section  313  Cr.P.C.  regarding  any  incriminating
      material that has been produced against him. If the accused  has  been
      given the freedom to remain silent during the investigation as well as
      before the court, then the accused may choose to maintain  silence  or
      even remain in complete denial when his statement  under  Section  313
      Cr.P.C. is being recorded. However, in such an event, the court  would
      be entitled to draw an inference,  including  such  adverse  inference
      against the accused as may be  permissible  in  accordance  with  law.
      (Vide: Ramnaresh & Ors. v. State of Chhattisgarh, AIR  2012  SC  1357;
      Munish Mubar v. State of Haryana, AIR 2013 SC 912; and Raj Kumar Singh
      alias Raju @ Batya v. State of Rajasthan, AIR 2013 SC 3150).

Interference in acquittal by appellant court 

We are fully aware of limitations  of  the  appellate  court  to
      interfere with an order of acquittal. In exceptional cases where there
      are compelling circumstances and the judgment under appeal is found to
      be perverse, the appellate court  can  interfere  with  the  order  of
      acquittal. The appellate court should bear in mind the presumption  of
      innocence of the accused and further that the trial Court's  acquittal
      bolsters the presumption of his innocence. Interference in  a  routine
      manner where the other view is  possible  should  be  avoided,  unless
      there are good reasons for interference.


      11.   In the instant case, there is no perversity in the  judgment  of
      the High Court as it cannot be said that the judgment is not based  on
      evidence  or  the  evidence  on  record  has  not  properly  been  re-
      appreciated by the appellate court, which may warrant interference  by
      this court.

  2014 (March . Part) judis.nic.in/supremecourt/filename=41279
B.S. CHAUHAN, J. CHELAMESWAR

                                                            REPORTABLE


                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION


                       CRIMINAL APPEAL NO.2271 of 2011




      Phula Singh                                  …..Appellant


                                   Versus




      State of Himachal Pradesh                           ….. Respondent




                                  JUDGMENT


      Dr. B.S. CHAUHAN, J.




      l.    This appeal has been preferred against the impugned judgment and
      order dated 24.8.2011/7.9.2011, passed by the High Court  of  Himachal
      Pradesh at Shimla in Criminal Appeal  No.358  of  2009  reversing  the
      judgment and order dated  19.2.2009,  passed  by  Ld.  Special  Judge,
      Hamirpur in Corruption Case No.1 of 2008 acquitting the appellant from
      the Charges under Sections 7 and 13(2) of the Prevention of Corruption
      Act, 1988 (hereinafter referred to as ‘the Act’).  The High Court  has
      awarded the appellant sentence of one year RI and a fine of Rs.10,000/-
       and in default of payment of fine to undergo further RI for a  period
      of six months.
      2.    Facts and circumstances giving rise to this appeal are:


      A.    That on 20.6.2007, the appellant was working as Kanungo  of  the
      particular area and one Vakil Chand  filed  a  complaint  against  the
      father of the complainant that he encroached upon the land thus, asked
      for demarcation.  The appellant investigated the matter and found that
      one and half kanals of the land of Vikil  Chand  had  been  encroached
      upon by the complainant’s father.


      B.    The complainant raised the objection about this demarcation  and
      at that time the appellant met the complainant at  village  Kheri  and
      demanded “Chai Pani” to cancel the demarcation report.  It was in view
      thereof that the complainant contacted the appellant on  10.7.2007  on
      his mobile and the appellant demanded the bribe of Rs.5,000/- from the
      complainant. The complainant Prabhat Chand  lodged  an  FIR  with  the
      Police Station of  State  Vigilance  and  Anti-Corruption  Department,
      Hamirpur alleging demand of bribe by the appellant.


      C.    The appellant informed the complainant that he would  visit  his
      residence and he should pay the said amount.  In the  negotiation  the
      deal was struck to the tune of Rs.1,000/-.  The appellant came to  the
      residence of the complainant on 10.7.2007 and demanded the  bribe.  In
      view of the complaint already lodged by Prabhat Chand,  the  trap  was
      laid and the appellant was arrested and after investigating the matter
      the chargesheet was filed which ultimately culminated into  Corruption
      Case No.1 of 2008 under Sections 7 and 13(2) of the Act.
      After conclusion of the trial by judgment and  order  dated  19.2.2009
      the Ld. Sessions Judge, Hamirpur acquitted the appellant  of  all  the
      charges.


      D.    Aggrieved, the State of Himachal Pradesh filed an  appeal  which
      has been allowed vide impugned judgment and order.
            Hence, this appeal.




      3.    Shri D.K. Garg, learned counsel appearing for the appellant  has
      submitted that demarcation had already been made and  the  report  had
      been submitted before the Tahsildar, therefore, there was no  occasion
      for the appellant to demand any amount.  As the  complainant’s  father
      had encroached upon the land of Vakil Chand to the  tune  of  one  and
      half kanals and the appellant had shown this fact in  his  report  the
      complainant was having the grudge  against  him.   Therefore,  he  has
      falsely been enroped.   The High Court failed to appreciate that there
      are different parameters to reverse the judgment of acquittal  and  in
      this respect failed to apply the law laid down  by  this  Court  in  a
      catena of judgments.  There is no evidence of demand or acceptance  of
      the bribe.  Hence, the appeal deserves to be allowed.


      4.    Per  contra,  Ms.  Shikha  Bhardwaj,  learned  counsel  for  the
      respondent has opposed the appeal contending that there was sufficient
      material against the appellant on the basis of which  the  High  Court
      has rightly reversed the acquittal though there was no direct evidence
      of  demand  of  bribe.   The  appellant  visited  the  house  of   the
      complainant though there was no  relationship  between  the  two.   He
      removed his shirt and hanged in the house of  the  complainant  though
      the money was recovered from the pocket of the pant.   After  recovery
      when the hands of the appellant were washed,  the  same  turned  pink.
      Therefore, there was a duty cast upon the appellant to explain all the
      circumstances while his statement under Section 313 Cr.P.C. was  being
      recorded.  The appellant kept mum and did not  lead  any  evidence  in
      defence.  The High Court was justified to draw the  adverse  inference
      against the appellant in  view  of  the  presumption  enshrined  under
      Section 20 of the Act. Hence, the appeal is liable to be dismissed.
      5.    We have considered the rival submissions made by learned counsel
      for the parties and perused the record.


      6.    The admitted facts remain that the appellant had no relationship
      or acquaintance with the  complainant  whatsoever  and  the  appellant
      failed to furnish any explanation about his visit and staying  in  the
      house of the complainant.   The appellant has not denied visit to  the
      house of the complainant. More so, he did not furnish any  explanation
      in respect of recovery of Rs.1,000/- from the pocket of his  pant  nor
      he could furnish any information as how his  fingers  turned  pink  on
      being washed, with sodium carbonate solution  as  the  currency  notes
      already  found  in  pocket  of  his  pant  had   been   treated   with
      phenolphthalein. On being washed, part of his pant also turned pink.
            Even in the statement under Section 313 Cr.P.C.,  the  appellant
      answered every question saying “I do not know” or  “it  is  incorrect”
      but when he was asked as to whether he wanted to say anything else, he
      answered as under:-
           “I am innocent and Prabhat Chand had lodged a false case against
           him, because he had encroached the land of Shri Vakil  Chand  as
           per his demarcation”.




      7.    We do not find any force in the submission advanced by Shri D.K.
      Garg that it is the prosecution which has to establish each and  every
      fact and the accused has a right only to maintain silence.


      8.    The accused  has  a  duty  to  furnish  an  explanation  in  his
      statement  under  Section  313  Cr.P.C.  regarding  any  incriminating
      material that has been produced against him. If the accused  has  been
      given the freedom to remain silent during the investigation as well as
      before the court, then the accused may choose to maintain  silence  or
      even remain in complete denial when his statement  under  Section  313
      Cr.P.C. is being recorded. However, in such an event, the court  would
      be entitled to draw an inference,  including  such  adverse  inference
      against the accused as may be  permissible  in  accordance  with  law.
      (Vide: Ramnaresh & Ors. v. State of Chhattisgarh, AIR  2012  SC  1357;
      Munish Mubar v. State of Haryana, AIR 2013 SC 912; and Raj Kumar Singh
      alias Raju @ Batya v. State of Rajasthan, AIR 2013 SC 3150).


      9.    In the instant  case,  we  fail  to  understand  as  under  what
      circumstances  the   appellant   could   maintain   complete   silence
      particularly, in view of the fact that he did not deny  his  visit  to
      the house of the complainant or that his shirt was  found  hanging  on
      the peg in the wall and that his hands turned  pink  on  being  washed
      with sodium carbonate  water.   We  do  not  find  any  force  in  the
      submission advanced by Shri D.K. Garg that it was not a fit case where
      the High Court ought to have reversed the well  reasoned  judgment  of
      acquittal as it was based on evidence on record.


      10.   We are fully aware of limitations  of  the  appellate  court  to
      interfere with an order of acquittal. In exceptional cases where there
      are compelling circumstances and the judgment under appeal is found to
      be perverse, the appellate court  can  interfere  with  the  order  of
      acquittal. The appellate court should bear in mind the presumption  of
      innocence of the accused and further that the trial Court's  acquittal
      bolsters the presumption of his innocence. Interference in  a  routine
      manner where the other view is  possible  should  be  avoided,  unless
      there are good reasons for interference.


      11.   In the instant case, there is no perversity in the  judgment  of
      the High Court as it cannot be said that the judgment is not based  on
      evidence  or  the  evidence  on  record  has  not  properly  been  re-
      appreciated by the appellate court, which may warrant interference  by
      this court.


      12.   In view of the above, the appeal is dismissed. The appellant has
      been enlarged  on  bail.  The  bail  bonds  are  cancelled.   He  must
      surrender before the Ld. Special  Judge,  Hamirpur,  Shimla  within  a
      period of four weeks, failing which the said Court  shall  secure  his
      presence and send him to jail to  serve  the  remaining  part  of  the
      sentence.
            A copy of the judgment be sent to the  aforesaid  learned  Court
      for information and compliance.


                                             ..…………………….J.          (DR.
                                  B.S. CHAUHAN)




                                              ..………………………J.
                                             (J. CHELAMESWAR)
      New Delhi
      March 3, 2014.



-----------------------
8

Section 29 of the Tamil Nadu Buildings (Lease and Rent Control) Act - exemption G.O. - waiver - res judicata - Society purchased a Building - and filed an eviction suit under Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 and the same was dismissed for default - As per sec.29 there is a Go exempting the building of Societies from Rent control proceedings - As per the G.O. , suit for eviction and damages was filed - objection as to maintainability on the ground of Waiver and on the ground of Res judicata - Lower court decreed the suit - appellant court set aside the order of Lower court and dismissed the suit - their Lordships of High court held that Wavier does not arise against Statutory remedies - nor consent confer jurisdiction over the court- and held that res judicata not arise when the rent controller has no jurisdiction over the case as per G.O. - and as such set aside the order of appellant court and confirm the orders of lower court by allowing second appeal

Section 29 of the Tamil Nadu Buildings (Lease and Rent Control) Act - exemption G.O. - waiver - res judicata - Society purchased a Building - and filed an eviction suit under Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 and the same was dismissed for default - As per sec.29 there is a Go exempting the building of Societies from Rent control proceedings - As per the G.O. , suit for eviction and damages was filed - objection as to maintainability on the ground of Waiver and on the ground of Res judicata - Lower court decreed the suit - appellant court set aside the order of Lower court and dismissed the suit - their Lordships of High court held that Wavier does not arise against Statutory remedies - nor consent confer jurisdiction over the court- and held that res judicata not arise when the rent controller has no jurisdiction over the case as per G.O. - and as such set aside the order of appellant court and confirm the orders of lower court by allowing second appeal =

G.O. Ms.No.II (2)/HO/6060/76 which states that in exercise of the powers conferred by Section 29 of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 (Tamil Nadu Act XVIII of 1960), the Government of Tamil Nadu hereby exempts the buildings owned by all Government undertakings including Government Companies registered under the Indian Companies Act, 1956 (Central Act 1 of 1956) and by all the Co-operative Societies, from all the provisions of the said Act . =

11. The plaintiff being a Co-operative Society registered under the Tamil Nadu Co-operative Societies Act contended that Rent Control Act is not applicable, only the suit is maintainable under the Transfer of Property Act. Accordingly, the statutory notice under Section 106 of Transfer of Property Act was issued to the respondent on 06.03.2003, terminating the tenancy.  

whether the suit filed by the plaintiff is maintainable, in view of the fact that they have already exercised their right and submitted to proceedings under the Rent Control Act. 
Section 29 of the Tamil Nadu Buildings (Lease and Rent Control) Act deals with the exemptions, which is quoted below:
29. Exemptions Notwithstanding anything contained in this Act, the Government may, subject to such conditions as they deem fit, by notification, exempt any building or class of buildings from all or any of the provisions of this Act.  

when a benefit or privilege conferred upon a person it can always be waived unless the statute imposes a bar from contracting out. If a particular owner did not wish to avail of the benefit of that Section there was no bar created by it in the way of his waiving or giving up the advantage or benefit contemplated by the Section. 
whether the filing of the suit is barred by res judicata, in view of the Rent Control proceedings initiated earlier. It is contended that once by the Government order, the Co-operative Society has exempted from the purview of the Rent Control Act and therefore an order passed by the Rent Controller would be a nullity.
In the present case, it is contended that parties who were at logger heads before the Rent Control Tribunal are the same parties contesting each other in the suit. The landlord as a petitioner before the Rent Control Authorities though exempted from the purview of the Rent Control Act, filed the petition for eviction. The first defendant/tenant also had not raised any objection regarding the maintainability of the RCOP and suffered an order fixing the fair rent. No doubt, the petitions filed for eviction on various grounds, were dismissed for default. Now when the suit is filed by the plaintiff for eviction of the tenant invoking the Transfer of Property Act, the tenant is making a hue and cry about the applicability of the Act, waiver, etc. It can be seen that though the plaintiff had filed the earlier proceedings under the Rent Control Act, it was dismissed for default and the plaintiff/ landlord had not taken any executable order. Mere filing of the RCOP by the landlord, cannot be said that he has waived his right to file a suit subsequently. Even in the cause of action paragraph, the plaintiff has stated that cause of action for the suit arose on 30.06.1989, when the plaintiff purchased the property and on subsequent dates, when the plaintiff issued notice seeking eviction of the first defendant and on the date on which the plaintiff filed eviction petition against first defendant on 20.12.1999, when the eviction petition was dismissed and again on 06.03.2003, when the plaintiff issued statutory notice terminating the tenancy. Once it is held that the building is exempted as per the G.O., the Rent Controller will not have jurisdiction to pass any order. Even though the plaintiff had filed R.C.O.P. for eviction, they were only dismissed for default and there was no merited order for eviction. When the RCOP. was dismissed for non-prosecution, it is not a decision on merit. Consequently the said order cannot operate as res judicata. Therefore, the appellant is not precluded from filing a fresh suit for eviction under the Transfer of Property Act because the act of filing of RCOP. does not amount to waiver and the right to sue by the plaintiff is not lost. 

Therefore, for the above said reasons, the judgment of the Lower Appellate Court dismissing the suit by setting aside the decree, granted by the Trial Court cannot be sustained.  and allowed the second appeal 

2014( Feb. Part) judis.nic.in/judis_chennai/filename=45260

Rule 30 of schedule II of Rules framed under Carriage by Air Act, 1972, and sec. 3,14, and sec. 29 of Indian Limitation Act - Limitation mentioned in special enactment prevails over the general limitation Act -Cargo damaged in transit - Cargo arrived on 17.10.1996 - all bags in cargo in a damaged and wet condition- on 2-1-1997 a notice of loss was sent - independent surveyor appointed as the loss was took place in the custody of first defendant -The consignment was insured with the second plaintiff. As per the terms and conditions of the Policy, the second plaintiff processed the claim of the first plaintiff and paid a sum of Rs.2,67,433/- for which the first plaintiff also executed a letter of Subrogation and Special Power of Attorney in favour of the second plaintiff - filed OP in Consumer forum - Forum dismissed the same - Civil suit filed - barred by limitation - their Lordships of High court held that as per Rule 30 of the Schedule II of Carriage by Air Act, 1972, the right to damages shall be extinguished if an action is not brought within two years from the date of arrival of the aircraft - since it is an special law , general law of limitation not applies - so the time consumed in wrong forum does not save the limitation and as such confirmed the dismissal orders of Trial court and set aside the appellant court

Rule 30 of schedule II of Rules framed under Carriage by Air Act, 1972, and sec. 3,14, and sec. 29 of Indian Limitation Act - Limitation mentioned in special enactment prevails over the general limitation Act -Cargo damaged in transit - Cargo arrived on 17.10.1996 - all bags in cargo in a damaged and wet condition- on 2-1-1997 a notice of loss was sent - independent surveyor appointed as the loss was took place in the custody of first defendant -The consignment was insured with the second plaintiff.     As per the terms and conditions of the Policy, the second plaintiff processed the claim of the first plaintiff and paid a sum of Rs.2,67,433/- for which the first plaintiff also executed a letter of Subrogation and Special Power of Attorney in favour of the second plaintiff - filed OP in Consumer forum - Forum dismissed the same - Civil suit filed - barred by limitation - their Lordships of High court held that as per Rule 30 of the Schedule II of Carriage by Air Act, 1972, the right to damages shall be extinguished if an action is not brought within two years from the date of arrival of the aircraft - since it is an special law , general law of limitation not applies - so the time consumed in wrong forum does not save the limitation and as such confirmed the dismissal orders of Trial court and set aside the appellant court =

The cargo belonging to the first plaintiff  was entrusted to the first defendant, who issued the Master Airway Bill and undertook to carry the cargo.    The second defendant, on arrival of the cargo, collected the freight charges from the plaintiffs and the first plaintiff, on payment, collected the cargo.    After the customs examination, the first plaintiff found all the bags in the cargo in a damaged and wet condition thereby defeating the purpose for which the cargo was imported.    On 02.01.1997, a notice of loss was sent to the first defendant holding them liable for the loss.     An independent  surveyor was also appointed to find the quantum the loss as the damage took place while in the custody of the first defendant.    The first defendant as the carrier and the second defendant as the consolidator are jointly and severally liable to pay the loss to the plaintiffs.     The consignment was insured with the second plaintiff.     As per the terms and conditions of the Policy, the second plaintiff processed the claim of the first plaintiff and paid a sum of Rs.2,67,433/- for which the first plaintiff also executed a letter of Subrogation and Special Power of Attorney in favour of the second plaintiff on the strength of which the plaintiffs together filed a complaint bearing O.P. No. 828 of 1998  before the District Consumer Disputes Redressal Forum, Chennai South, on 18.9.1998 and the same was dismissed on 24.5.2000 with liberty to file a Civil Suit.    Since the plaintiffs prosecuted the matter before the District Consumer Disputes Redressal Forum in good faith, the plaintiffs have sought for exclusion of the period spent before the District Consumer Disputes Redressal Forum under Section 14 of the Limitation Act.     Hence, the suit filed is within time according to the plaintiffs.   =
The suit was contested by the first defendant on the ground that the suit is not filed within two years from 17.10.1996 as per Carriage by Air Act, 1972, which is a special enactment.=
Trial Court dismissed the suit against the second defendant and decreed the suit only against the first defendant.     Aggrieved by the same, the first defendant had preferred an appeal in A.S. No.110 of 2005 on the file of the 5th Additional Judge, City Civil Court, Chennai, who had after careful consideration of the facts and law, allowed the appeal and dismissed the suit. =
Second appeal framed issues 
(i) Is Carriage by Air Act of 1972, an International Law?

(ii) Will a Special Enactment exclude the operation of Limitation Act in the absence of specific exclusion?

(iii) Is not a plaintiff / Insurer entitled to avail the benefit of provisions of Limitation Act, viz., Section 14 and Section 29(2), particularly when they have initiated 'action' against the respondent Air Carrier by filing a complaint against them within the time prescribed under the special enactment viz., Carriage by Air Act 1972 as well as Consumer Protection Act.=
The admitted facts are that the cargo arrived at Chennai on 17.10.1996.   The Original Petition before the District Consumer Disputes Redressal Forum was filed on 18.09.1998 and District Consumer Disputes Redressal Forum dismissed the O.P. on 24.5.2000 based the decision in Laxmi Engineering Works   vs.  P.S.G. Industrial Institute reported in 1995 (2) CPJ 1 (SC) which held that the Insurance Companies do not come under the definition "Consumer".     After the dismissal of the O.P., the present suit was filed on 16.6.2000, which is now said to be hit by limitation.

M/s Air India, Bombay Airport and another  vs.  M/s Asia Tanning Co. and another reported in  2003 (1) LW 622, wherein the Division Bench of this Court, in paragraph 7 of the judgment, was precisely on the point.    
Paragraph 7 of the judgment reads as follows:-
"7. Section 4 of the Act deals with the application of amended Convention (Warsaw Convention 1929 as amended by the Hague Protocol, 1955) to India. Sub-section (1) thereof reads thus:
       "The Rules contained in the Second Schedule being the provisions of the amended Convention relating to the rights and liabilities of carriers, passengers, consignors, consignees and other persons, shall subject to the provisions of this Act, have the force of law in India in relation to any carriage by air to which those rules apply, irrespective of the nationality of the aircraft performing the carriage."
       The Rule of Limitation prescribed in Rule 30 of the Second Schedule is thus a special Rule of Limitation in respect of carriage by air and will prevail over the general law of limitation. The Rules prescribe the forum and the period before which the action is to be brought. Those provisions dealing with the forum and the period of limitation are meant to be the law governing actions against air carriers. Questions of procedure are governed by the law of the Court in which the action is brought, as provided in Rule 29(2) of the Second Schedule to the Act."

16. From the foregoing discussion, it is clear that the plaintiffs instead of going to the Civil Court, moved the District Consumer Disputes Redressal Forum to claim their damages by choice.     The same was rightly dismissed holding firstly that the Insurance Company is not a consumer and secondly, that the transaction is of a commercial nature.     There was no impediment for the plaintiffs to move the Civil Court by filing the suit on the date of cause of action, viz., on 17.10.1996.     Having chosen the wrong forum to make claim, the plaintiffs now cannot take advantage of their own wrong.    Thus, the questions of law are answered in favour of the defendants.    The plaintiff Insurance Company has to suffer for its own imprudent act and the question of limitation is held in favour of the defendants.   

In the result, the Second Appeal is dismissed confirming the judgment and decree dated 17.10.2005 passed by the V Additional Judge, City Civil Court, Chennai, in A.S. No. 110 of 2005.     However, there shall be no order as to costs.

2014 ( Feb. Part )judis.nic.in/judis_chennai/filename=44906

Suit for specific performance & in alternative declaration of title by adverse possession - suit filed after 15 years - suit is barred by limitation for specific performance - Adverse possession is not maintainable as the possession was permissive one and further both reliefs are mutually exclusive one against each other - Their Lordships of High court held that the lower courts correctly dismissed the suit and confirmed the lower court decree and judgement = 2014 ( Feb. Part )judis.nic.in/judis_chennai/filename=44900

Suit for specific performance & in alternative declaration of title by adverse possession - suit filed after 15 years - suit is barred by limitation for specific performance - Adverse possession is not maintainable as the possession was permissive one and further both reliefs are mutually exclusive one against each other - Their Lordships of High court held that the lower courts correctly dismissed the suit and confirmed the lower court decree and judgement =
suit for the relief of specific performance and for directing the defendants to execute the sale deed or alternative relief of declaration of title by way of prescription by adverse possession and also for the relief of permanent injunction not to alienate the suit property.=
Trial Court / learned Principal District Munsif, Salem, on consideration of the evidence adduced and the materials available thereon, finding that the plaintiff failed to prove Exs. A.1 and A.2 unregistered deeds of sale agreement, dismissed O.S. No. 1999 of 1996 holding as time barred by judgment dated 01.11.2004. appeal was also dismissed- in second appeal , high court framed issues
(i) Even assuming that Exs. A.1 and A.2 are unenforceable, having allowed the plaintiff to be in possession of the property as a usufructuory mortgagee, have not the defendants lost their right to redeem due to law of limitation coming into operation?

(ii) Whether the findings of the courts below that Exs. A.1 and A.2 are fabricated are opposed to legal evidence on record?
Conclusion
When admittedly, under Ex. A.2, the plaintiff was put in possession in lieu of rent, it can be said to be an usufructuary mortgage or at least the possession of the plaintiff can be taken as permissive one.    While so, the claim of the title to the suit property by the plaintiff on the basis of adverse possession cannot be sustained.    The plaintiff having missed out on time seeking relief of specific performance, has sought for the relief of title by adverse possession.     The relief of specific performance and adverse possession are mutually exclusive.   Therefore, Exs. A.1 and A.2 are invalid and not binding upon the defendants.    The plaintiff has not established her case and the Courts below have rightly come to the conclusion that the plaintiff is not entitled to the relief asked for.     Therefore, this Court finds no reason to interfere with the finding of the Courts below.       

2014 ( Feb. Part )judis.nic.in/judis_chennai/filename=44900

Quashing of criminal case sec.420/120 B- Bank is the complainant - Accused who is not a public servant refund the civil liability to the Bank - Bank has no grievance against the Accused - 420 is compoundable where as sec.120 B not and To the latter offence the ratio laid down in B.S. Joshi (supra) and Nikhil Merchant (supra) would apply if the facts of the given case would so justify. The observation in Gian Singh (supra) (para 61) will not be attracted in the present case in view of the offences alleged i.e. under Sections 420/120B IPC.- CBI, ACB, MUMBAI . ... APPELLANT (S) VERSUS NARENDRA LAL JAIN & ORS. ... RESPONDENT (S) = 2014(Feb.Part) judis.nic.in/supremecourt/filename=41278

 Quashing of criminal case sec.420/120 B- Bank is the complainant - Accused who is not a public servant refund the civil liability to the Bank - Bank has no grievance against the Accused - 420 is compoundable where as sec.120 B not and To the latter offence the ratio laid down in B.S.  Joshi  (supra) and Nikhil Merchant (supra) would apply if  the  facts  of  the  given  case would so justify.  The observation in Gian Singh (supra) (para 61) will  not be attracted in the present case in view of the offences alleged i.e.  under Sections 420/120B IPC.=

Central  Bureau  of  Investigation  (CBI)  ACB,  Mumbai
seeks to challenge an order dated 28.10.2005 passed by  the  High  Court  of
Bombay quashing the criminal proceedings against  the  respondents  Narendra
Lal Jain, Jayantilal L. Shah and  Ramanlal  Lalchand  Jain.   The  aforesaid
respondents had moved the High Court under  Section  482  Code  of  Criminal
Procedure, 1973 (for short “Cr.P.C.”) challenging the orders passed  by  the
learned Trial Court refusing to discharge  them  and  also  questioning  the
continuance of the criminal proceedings registered  against  them. =


 In the present case, as already  seen,  the  offence  with  which  the
accused-respondents had been charged are  under  Section  120-B/420  of  the
Indian Penal Code.  The civil  liability  of  the  respondents  to  pay  the
amount to the bank has already been settled  amicably.  
The  terms  of  such
settlement have been extracted above.  No subsisting grievance of  the  bank
in this regard has been brought to the  notice  of  the  Court.   
  Learned counsel has  further  pointed  out  that  
the  charges  framed
against the accused-respondents are under Section 120-B/420  of  the  Indian
Penal Code and the respondents not being  public  servants,  no  substantive
offence under the PC Act can be alleged against them. The relevance  of  the
views expressed in para 61 of the judgment  of  this  Court  in  Gian  Singh
(supra), noted above, to the present  case  is  seriously  disputed  by  the
learned counsel in view of the offences  alleged  against  the  respondents.
Learned counsel has also submitted that by the very same impugned  order  of
the High Court the criminal  proceeding  against  one  Nikhil  Merchant  was
declined to be quashed on the ground that offences under  Sections  468  and
471 of the IPC had been alleged against the said accused.  Aggrieved by  the
order of the High Court the accused had moved this Court under  Article  136
of the Constitution.  
In  the  decision  reported  in  Nikhil  Merchant  vs.
Central Bureau of Investigation and Another[4]  this  Court  understood  the
charges/allegations against the aforesaid Nikhil Merchant in the same  terms
as in the case of the accused-respondents, as already  highlighted.   
Taking
into consideration the ratio  laid  down  in  B.S.  Joshi  (supra)  and  the
compromise between the bank and the accused Nikhil  Merchant  (on  the  same
terms as in the present case) the proceeding against the said  accused  i.e.
Nikhil Merchant was quashed by the Court taking the view that the power  and
the Section 482  Cr.P.C.  and  of  this  Court  under  Article  142  of  the
Constitution cannot be  circumscribed  by  the  provisions  of  Section  320
Cr.P.C.   It  is  further  submitted  by  the  learned  counsel   that   the
correctness of the view in B.S. Joshi (supra) and  Nikhil  Merchant  (supra)
were referred to the three Judges Bench in Gian Singh (supra).   As  already
noted, the opinion expressed in Gian Singh (supra) is that the power of  the
High Court to quash a criminal  proceeding  under  Section  482  Cr.P.C.  is
distinct and different from the power vested in a criminal court by  Section
320 Cr.P.C. to compound an offence.  The conclusion in Gian  Singh  (supra),
therefore, was that the decisions rendered in B.S. Joshi (supra) and  Nikhil
Merchant (supra) are correct.
While  the
offence under Section 420 IPC is compoundable the offence under Section 120-
B is not.  
To the latter offence the ratio laid down in B.S.  Joshi  (supra)
and Nikhil Merchant (supra) would apply if  the  facts  of  the  given  case
would so justify.  The observation in Gian Singh (supra) (para 61) will  not
be attracted in the present case in view of the offences alleged i.e.  under
Sections 420/120B IPC.
11.   In the present case, having regard to the fact that the  liability  to
make good the monetary  loss suffered by the bank had been mutually  settled
between the parties and the accused  had  accepted  the  liability  in  this
regard, the High Court had thought it fit to invoke its power under  Section
482 Cr.P.C.  We do not see how such exercise of  power  can  be  faulted  or
held to be erroneous.  Section 482 of the Code inheres  in  the  High  Court
the power to make such order as may be considered necessary to, inter  alia,
prevent the abuse of the process of law or to serve  the  ends  of  justice.
While it will be wholly unnecessary  to  revert  or  refer  to  the  settled
position in law with regard to the contours of  the  power  available  under
Section 482 Cr.P.C. it must be remembered that  continuance  of  a  criminal
proceeding  which  is  likely  to  become  oppressive  or  may  partake  the
character of  a  lame  prosecution  would  be  good  ground  to  invoke  the
extraordinary power under Section 482 Cr.P.C.
12.   We, therefore, decline to interfere  with  the  impugned  order  dated
28.10.2005 passed by the High Court and dismiss this appeal.   We,  however,
make it clear that the proceedings in  Special  Case  No.  15/95  and  20/95
stands interfered with by the present order  only  in  respect  of  accused-
respondents Narendra Lal Jain and Ramanlal Lalchand Jain.
2014(Feb.Part) judis.nic.in/supremecourt/filename=41278
P SATHASIVAM, RANJAN GOGOI, N.V. RAMANA
                               REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION
                      CRIMINAL APPEAL  NO.517  OF 2014
       (Arising out of Special Leave Petition (Crl) No. 6138 OF 2006)


CBI, ACB, MUMBAI             .           ...    APPELLANT (S)

                                   VERSUS

NARENDRA LAL JAIN & ORS.                 ...  RESPONDENT (S)




                               J U D G M E N T


RANJAN GOGOI, J.

1.    Leave granted.

2.    The appellant, Central  Bureau  of  Investigation  (CBI)  ACB,  Mumbai
seeks to challenge an order dated 28.10.2005 passed by  the  High  Court  of
Bombay quashing the criminal proceedings against  the  respondents  Narendra
Lal Jain, Jayantilal L. Shah and  Ramanlal  Lalchand  Jain.   The  aforesaid
respondents had moved the High Court under  Section  482  Code  of  Criminal
Procedure, 1973 (for short “Cr.P.C.”) challenging the orders passed  by  the
learned Trial Court refusing to discharge  them  and  also  questioning  the
continuance of the criminal proceedings registered  against  them.   Of  the
three accused, Jayantilal L. Shah, the court is informed,  has  died  during
the pendency of the present  appeal  truncating  the  scope  thereof  to  an
adjudication of the correctness of the decision of the High Court in so  far
as accused Narendra Lal Jain and Ramanlal Lalchand Jain are concerned.

3.    On the basis of two FIRs dated 22.03.1993, R.C. No. 21(A) of 1993  and
R.C. No.22 (A) of 1993 were registered against the  accused-respondents  and
several officers of the Bank of  Maharashtra.   The  offences  alleged  were
duly investigated and separate chargesheets in the two cases were  filed  on
the basis whereof Special Case No. 15 of 1995 and Special  Case  No.  20  of
1995 were registered in the Court of the  Special  Judge,  Mumbai.   In  the
chargesheet filed, offences under Sections 120-B/420 IPC and  Sections  5(2)
read with  Section  5(1)(d)  of  the  Prevention  of  Corruption  Act,  1947
corresponding  to  Sections  13(2)  read  with  Section  13(1)(d)   of   the
Prevention of Corruption  Act,  1988  (for  short  “PC  Act”)  were  alleged
against the accused persons.  In so far as the  present  accused-respondents
are concerned the gravamen of the charge is that  they  had  conspired  with
the  bank  officials   and   had   projected   inflated   figures   of   the
creditworthiness of the companies represented by them  and  in  this  manner
had secured more advances/loans from the bank than they were entitled to.

4.    While  the  criminal  cases  were  being  investigated  the  bank  had
instituted suits for recovery of the amounts claimed  to  be  due  from  the
respondents.  The said suits were disposed of in terms  of  consent  decrees
dated 23.04.2001.  Illustratively, the relevant clause of the  agreement  on
the basis of which the consent decrees were passed reads as follows:

      “10. Agreed and declared that dispute between the parties hereto  were
      purely and  simply  of  civil  nature  and  on  payment  mentioned  as
      aforesaid made by the Respondents the Appellants have no grievance  of
      whatsoever  nature  including  of  the  CBI  Complaint   against   the
      Respondents.”



5.    Applications for  discharge  were  filed  by  the  accused-respondents
which were rejected by the learned Trial Court by  order  dated  04.09.2011.
The learned Trial Court, thereafter, proceeded to frame charges against  the
accused.  In  so  far  as  the  present  accused-respondents  are  concerned
charges were framed under  Sections  120-B/420  of  the  Indian  Penal  Code
whereas against the bank officials, charges were framed under the  different
provisions of  the  Prevention  of  Corruption  Act,  1988  (PC  Act).   The
challenge of the respondents  to  the  order  of  the  learned  Trial  Court
refusing discharge and the continuation of the  criminal  proceedings  as  a
whole having been upheld by the High Court and the proceedings  in  question
having been set aside and quashed in respect of the respondent, the CBI  has
filed the present appeal challenging the common  order  of  the  High  Court
dated 28.10.2005.

6.    We have heard Mr. P.P. Malhotra, learned Additional Solicitor  General
appearing on behalf of the appellant and    Mr.  Sushil  Karanjkar,  learned
counsel appearing on behalf of Respondent Nos. 1 and 4.

7.    Shri Malhotra, learned Additional  Solicitor  General,  has  taken  us
through the order passed by the High Court. He has submitted that  the  High
Court had quashed the criminal proceeding registered  against  the  accused-
respondents only on the ground that the civil liability of  the  respondents
had been settled by the consent terms recorded in the decree passed  in  the
suits.   Shri Malhotra  has  submitted  that  when  a  criminal  offence  is
plainly disclosed, settlement of the civil liability,  though  arising  from
the same facts, cannot be  a  sufficient  justification  for  the  premature
termination of the criminal case.  Shri Malhotra  has  also  submitted  that
the offence under Section 120-B alleged against the  accused-respondents  is
not compoundable under Section 320 Cr.P.C.; so also the offences  under  the
PC Act.  Relying on the decision of a three Judges Bench of  this  Court  in
Gian Singh vs. State of Punjab and Another[1], Shri Malhotra  has  submitted
that though it has been held that the power of the High Court under  Section
482 Cr.P.C. is distinct and different from the power vested  in  a  criminal
Court for compounding of offence under Section 320 of the  Cr.P.C.,  it  was
made clear that the High Court must  have  due  regard  to  the  nature  and
gravity of the offences alleged before  proceeding  to  exercise  the  power
under Section 482 Cr.P.C.  Specifically drawing the attention of  the  Court
to para 61 of the report in Gian Singh (supra) Shri Malhotra  has  submitted
that “any compromise between the victim and the offender in relation to  the
offences under special statutes like  the  Prevention  of  Corruption  Act….
cannot provide for any basis  for  quashing  criminal  proceeding  involving
such offences”.  Shri Malhotra had  contended  that  having  regard  to  the
gravity of the offences alleged, which offences are prima  facie  made  out,
in as much as charges have  been  framed  for  the  trial  of  the  accused-
respondents, the High Court was  not  justified  in  quashing  the  criminal
proceedings against the accused-respondents.
 8.   Per contra, the learned counsel for  the  respondents  (accused)  have
submitted that the High  Court,  while  quashing  the  criminal  proceedings
against the respondents (accused), had correctly relied on the judgments  of
this Court in Central Bureau of Investigation, SPE, SIU(X),  New  Delhi  vs.
Duncans Agro Industries Ltd.,  Calcutta[2]  and  B.S.Joshi  and  Others  vs.
State of Haryana and Another[3].  Learned counsel has submitted that  though
simultaneous criminal and civil  action  on  same  set  of  facts  would  be
maintainable, in Duncans Agro Industries Ltd. (supra) it has been held  that
the disposal of the civil suit for recovery, on compromise upon  receipt  of
payments by the  claimants,  would  amount  to  compounding  of  offence  of
cheating.  No error is, therefore, disclosed in the order of the High  Court
insofar as the offence under Section 420  IPC  is  concerned.   As  for  the
offence under Section 120-B it is submitted that this Court  in  B.S.  Joshi
(supra) has held that the  power  under  Section  482  Cr.P.C.  to  quash  a
criminal proceeding is not limited by the provisions of Section 320  Cr.P.C.
and even if an offence is not compoundable under Section  320  Cr.P.C.,  the
same would not act as a bar for the exercise  of  power  under  Section  482
Cr.P.C.  As the dispute between the parties have been settled on  the  terms
of the  compromise  decrees,  it  is  submitted  that  the  High  Court  had
correctly applied the principles laid down in  B.S.  Joshi  (supra)  to  the
facts of the present case.
9.    Learned counsel has  further  pointed  out  that  the  charges  framed
against the accused-respondents are under Section 120-B/420  of  the  Indian
Penal Code and the respondents not being  public  servants,  no  substantive
offence under the PC Act can be alleged against them. The relevance  of  the
views expressed in para 61 of the judgment  of  this  Court  in  Gian  Singh
(supra), noted above, to the present  case  is  seriously  disputed  by  the
learned counsel in view of the offences  alleged  against  the  respondents.
Learned counsel has also submitted that by the very same impugned  order  of
the High Court the criminal  proceeding  against  one  Nikhil  Merchant  was
declined to be quashed on the ground that offences under  Sections  468  and
471 of the IPC had been alleged against the said accused.  Aggrieved by  the
order of the High Court the accused had moved this Court under  Article  136
of the Constitution.  In  the  decision  reported  in  Nikhil  Merchant  vs.
Central Bureau of Investigation and Another[4]  this  Court  understood  the
charges/allegations against the aforesaid Nikhil Merchant in the same  terms
as in the case of the accused-respondents, as already  highlighted.   Taking
into consideration the ratio  laid  down  in  B.S.  Joshi  (supra)  and  the
compromise between the bank and the accused Nikhil  Merchant  (on  the  same
terms as in the present case) the proceeding against the said  accused  i.e.
Nikhil Merchant was quashed by the Court taking the view that the power  and
the Section 482  Cr.P.C.  and  of  this  Court  under  Article  142  of  the
Constitution cannot be  circumscribed  by  the  provisions  of  Section  320
Cr.P.C.   It  is  further  submitted  by  the  learned  counsel   that   the
correctness of the view in B.S. Joshi (supra) and  Nikhil  Merchant  (supra)
were referred to the three Judges Bench in Gian Singh (supra).   As  already
noted, the opinion expressed in Gian Singh (supra) is that the power of  the
High Court to quash a criminal  proceeding  under  Section  482  Cr.P.C.  is
distinct and different from the power vested in a criminal court by  Section
320 Cr.P.C. to compound an offence.  The conclusion in Gian  Singh  (supra),
therefore, was that the decisions rendered in B.S. Joshi (supra) and  Nikhil
Merchant (supra) are correct.
10.   In the present case, as already  seen,  the  offence  with  which  the
accused-respondents had been charged are  under  Section  120-B/420  of  the
Indian Penal Code.  The civil  liability  of  the  respondents  to  pay  the
amount to the bank has already been settled  amicably.  The  terms  of  such
settlement have been extracted above.  No subsisting grievance of  the  bank
in this regard has been brought to the  notice  of  the  Court.   While  the
offence under Section 420 IPC is compoundable the offence under Section 120-
B is not.  To the latter offence the ratio laid down in B.S.  Joshi  (supra)
and Nikhil Merchant (supra) would apply if  the  facts  of  the  given  case
would so justify.  The observation in Gian Singh (supra) (para 61) will  not
be attracted in the present case in view of the offences alleged i.e.  under
Sections 420/120B IPC.
11.   In the present case, having regard to the fact that the  liability  to
make good the monetary  loss suffered by the bank had been mutually  settled
between the parties and the accused  had  accepted  the  liability  in  this
regard, the High Court had thought it fit to invoke its power under  Section
482 Cr.P.C.  We do not see how such exercise of  power  can  be  faulted  or
held to be erroneous.  Section 482 of the Code inheres  in  the  High  Court
the power to make such order as may be considered necessary to, inter  alia,
prevent the abuse of the process of law or to serve  the  ends  of  justice.
While it will be wholly unnecessary  to  revert  or  refer  to  the  settled
position in law with regard to the contours of  the  power  available  under
Section 482 Cr.P.C. it must be remembered that  continuance  of  a  criminal
proceeding  which  is  likely  to  become  oppressive  or  may  partake  the
character of  a  lame  prosecution  would  be  good  ground  to  invoke  the
extraordinary power under Section 482 Cr.P.C.
12.   We, therefore, decline to interfere  with  the  impugned  order  dated
28.10.2005 passed by the High Court and dismiss this appeal.   We,  however,
make it clear that the proceedings in  Special  Case  No.  15/95  and  20/95
stands interfered with by the present order  only  in  respect  of  accused-
respondents Narendra Lal Jain and Ramanlal Lalchand Jain.

                                       .…………………………CJI.
                                        [P. SATHASIVAM]


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



                                        ..........……………………J.
                                        [N.V.RAMANA]
NEW DELHI,
FEBRUARY 28, 2014.

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[1]    (2012) 10 SCC 303
[2]    (1996) 5 SCC 591
[3]    AIR 2003 SC 1387
[4]    (2008) 9 SCC 677

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