Delhi Sales Tax Act, 1975 the Delhi Value Added Tax, 2004 -No explanation was offered to show that the random sample of sale for two days not correct - Sweet shop - No accounts were maintained for selling of small quantity - two days sale of small quantity was taken as a random sample - levied tax and penalty for difference in books and actual sales - No proper explanation was given like only in holidays and festivals small sales would raise than the ordinary days and as such the random sample is not correct for levying Tax and penalty - Apex court dismissed the appeals = M/s Nathu Ram Ramesh Kumar … Appellant Versus Commr. of Delhi Value Added Tax … Respondent = 2014 (April.Part) judis.nic.in/supremecourt/filename=41401

   Delhi  Sales Tax Act, 1975  the Delhi Value Added Tax, 2004 - No explanation was offered to show that the random sample of sale for two days not correct - Sweet shop - No accounts were maintained for selling of small quantity - two days sale of small quantity was taken as a random sample - levied tax and penalty for difference in books and actual sales - No proper explanation was given like only in holidays and festivals small sales would raise than the ordinary days and as such the random sample is not correct for levying Tax and penalty - Apex court dismissed the appeals =
  The appellant - assessee has been registered  under  the  Delhi  Sales
Tax Act, 1975 (hereinafter referred to as the ‘Act’) as well  as  under  the
Delhi Value Added Tax, 2004 and is carrying on the business  of  manufacture
and sale of sweets, namkeens and other eatables.  On  9th  March,  2000  and
10th March, 2000, officers from the office of the Commissioner of Sales  Tax
had visited  business  premises  of  the  appellant-firm  and  had  recorded
statements of partners of the appellant-firm  and  had  also  checked  total
cash  inflow  on  those  days.  =  

We do not find any substance in the submissions made on behalf of  the
appellant-assessee and therefore, we are not inclined to allow  the  appeals
for the reasons stated hereinbelow :

      (i)   The appellant-assessee is making and  selling  sweets,  namkeens
      and  other  eatables.   It  appears  from  the  record  that  when  an
      individual customer was buying eatables of a nominal  value,  possibly
      bill was not being issued.  There was no specific method whereby  each
      and every receipt from the buyers was recorded by  the  assessee.   In
      the aforestated circumstances, possibly due to some doubt, which might
      have arisen, a special search or inspection was made on 9th  and  10th
      March, 2000 and total sale proceeds had been meticulously recorded and
      calculated, which have been stated hereinabove.  On the basis  of  the
      receipts of those two  days,  considering  them  as  a  representative
      sample, the Assessing Officer had come to a conclusion that  the  sale
      proceeds or sales of the appellant-assessee for the year  should  have
      been a particular amount and, in fact, the  amount  reflected  in  the
      books of accounts was much less than the calculations  arrived  at  by
      the Assessing Officer.

      (ii)  It is pertinent to note that the Assessing Officer did not  jump
      to a conclusion without any rhyme or reason.   The  Assessing  Officer
      had called upon  the  assessee  to  explain  the  difference  but  the
      assessee could not or did not give sufficient explanation  as  to  how
      the total sale on the basis of the average daily sale  arrived  at  by
      the Assessing Officer was not correct.  One can very well presume that
      in case of a dealer dealing in  eatables,  and  specially  sweets  and
      namkeens, on a particular day like a holiday or  on  account  of  some
      festivity, total sale can be more than other days.  For example,  sale
      would normally be  more  on  Saturdays,  Sundays  and  other  holidays
      because more people would be visiting such eateries.  In  the  instant
      case, had those two days, when business premises of the  assessee  was
      inspected and the sale proceeds were recorded, been some special days,
      the  assessee  could  have  placed  those  special  facts  before  the
      Assessing Officer,  but  nothing  of  that  sort  was  done.   In  the
      circumstances, in our opinion, the Assessing Officer had rightly  come
      to the conclusion  that  the  books  of  accounts  maintained  by  the
      assessee were not showing correct sales and therefore, the  conclusion
      arrived at by him cannot  be  said  to  be  incorrect.   There  was  a
      reasonable basis for him to arrive at the said conclusion,  especially
      when the assessee did not offer any satisfactory explanation in  spite
      of issuance of notice.

      (iii) The submission made by the learned  counsel  appearing  for  the
      appellant-assessee that no notice was issued, as  required  under  the
      Act,  before  framing  the  assessment  is  also  not  correct.    The
      assessment orders refer to notices issued to  the  assessee  and  they
      also record the fact that no satisfactory explanation had been offered
      by the appellant-assessee to make out  a  case  that  there  was  some
      special reason for which sale of sweets, namkeen etc. on 9th and  10th
      March, 2000 was exceptionally more.

      (iv)  Once the Assessing Officer had rightly come  to  the  conclusion
      that the books of accounts were not properly maintained and  were  not
      reflecting each and every transaction, in our opinion,  the  Assessing
      Officer had rightly come to a conclusion that total possible sale  was
      much higher and the conclusion  so  arrived  at  was  based  on  sound
      reasons.  We also do not  agree  with  the  learned  counsel  for  the
      assessee that proper adjustments regarding sales tax had not been made
      by the Assessing Officer in the process of the assessment.

      (v)   Once it is found that with some oblique motive, effort was  made
      to show lesser sale proceeds than  the  actual,  the  orders  imposing
      penalty can not be questioned.  We are,  therefore,  not  inclined  to
      interfere even with the quantum of penalty.

13.   For the aforestated reasons, in our  opinion,  the  impugned  judgment
delivered by the High Court is just and proper, which does not  require  any
interference and therefore, the appeals are dismissed with no  order  as  to
costs.

2014 (April.Part) judis.nic.in/supremecourt/filename=41401                 ANIL R. DAVE, DIPAK MISRA                       

 NON-REPORTABLE

                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION


                    CIVIL APPEAL NOs.  4465-4468 OF 2014
              (Arising out of SLP (C) Nos.22912-22915 of 2009)


M/s Nathu Ram Ramesh Kumar              … Appellant

                                   Versus

Commr. of Delhi Value Added Tax                … Respondent



                               J U D G M E N T


Anil R. Dave, J.


1.    Leave granted.

2.    Being aggrieved by the judgment delivered by the High Court  of  Delhi
in STC Nos.1 and 2 of 2008 and CM Nos.2161 and 2162 of 2008,  these  appeals
have been filed by the appellant assessee.  The assessee has been  aggrieved
by the assessment orders as well as the orders  of  penalty.   As  both  the
appeals pertain to the assessee-appellant, at the  request  of  the  learned
counsel, they were heard together.

3.    The facts giving rise to the present litigation, in  a  nutshell,  are
as under :

      The appellant - assessee has been registered  under  the  Delhi  Sales
Tax Act, 1975 (hereinafter referred to as the ‘Act’) as well  as  under  the
Delhi Value Added Tax, 2004 and is carrying on the business  of  manufacture
and sale of sweets, namkeens and other eatables.  On  9th  March,  2000  and
10th March, 2000, officers from the office of the Commissioner of Sales  Tax
had visited  business  premises  of  the  appellant-firm  and  had  recorded
statements of partners of the appellant-firm  and  had  also  checked  total
cash  inflow  on  those  days.   On  those  two  days,  sale  proceeds  were
Rs.2,13,974/- (Rupees two lac thirteen thousand  nine  hundred  and  seventy
four only) and Rs.1,98,009/- (Rupees one lac ninety eight thousand and  nine
only) respectively.

      At the time of assessment for the Assessment Year  1999-2000,  it  was
found by the Assessing Officer that the assessee had not  shown  its  income
correctly and therefore, the Assessing Officer had taken  into  account  the
facts gathered on the aforesaid two days for the purpose of assessing  total
sales.  On the  basis  of  the  gross  receipts  of  sale  effected  on  the
aforestated two days, average receipts per day had been calculated  and  the
Assessing Officer had come to a conclusion that the  sale  proceeds  of  the
assessee for the relevant year  was  Rs.7,51,86,350/-  (Rupees  seven  crore
fifty one lacs eighty six thousand three hundred and  fifty  only).   Before
coming to the said conclusion, the assessee  was  given  an  opportunity  to
explain its books of accounts, as there was substantial discrepancy  between
the receipts shown in the books of accounts and  the  gross  receipts  which
were actually found on the aforestated  two  days.   It  was,  prima  facie,
believed by the Assessing Officer that the assessee had not  given  accurate
details about the gross receipts.

      Similarly for the Assessment Year 2000-2001, on 24.10.2000 also  there
was a surprise visit to the place of business of the appellant-assessee  and
even on that day it was found by the officers that there was discrepancy  in
cash on hand and cash as per books of accounts. Moreover,  they  also  found
that there was discrepancy in stock as the actual stock  and  stock  as  per
books of accounts were not same.  Thus, once again it  was  found  that  the
books of accounts maintained by the appellant-assessee were not in order.

      In spite of issuance of notice and giving hearing to   the  appellant-
assessee firm, sufficient explanation was  not  provided  to  the  Assessing
Officer and therefore, assessment for Assessment  Year  1999-2000  was  made
under Section 23(3) of the Act.  As the Assessing  Officer  had  come  to  a
conclusion that correct books of accounts had not been  maintained,  penalty
was also imposed upon the assessee by assessment order dated 31.12.2001  for
the said assessment year.   Similarly,  for  the  Assessment-Year  2000-2001
also, the books of accounts had not been maintained properly.   In  view  of
the said fact the Assessing Officer had taken into account figures of  sales
arrived at by him for the  Assessment  Year  1999-2000  and  had  added  10%
thereon as that was considered to be a normal  growth  of  the  business  in
normal circumstances, thereby arriving at gross  sales  for  the  Assessment
Year 2000-2001.

       Being  aggrieved  by  the  above  mentioned  assessment  orders,  the
assessee had preferred appeals before the Commissioner of Sales  Tax,  which
had been dismissed by an order dated 13.11.2003 and therefore, the  assessee
had preferred appeals before the Appellate Tribunal of Sales Tax, which  had
also been dismissed by a common order dated 03.11.2004.

      Thereafter, the appellant-assessee had approached the  High  Court  by
filing STC Nos.1 and 2 of 2008.  The High Court was also pleased to  dismiss
the said Reference Cases after giving hearing to the concerned parties by  a
common judgment dated 19th May, 2009 as no question of law was  involved  in
the said cases.  The said  judgment  has  been  challenged  in  the  present
appeals.

4.    The learned counsel appearing for the  appellant-assessee  had  mainly
submitted that the assessment orders were passed under Section 23(3) of  the
Act as the authorities were not satisfied with the details furnished by  the
appellant-assessee.  In the aforestated circumstances, it was obligatory  on
the part of the assessing authority to issue notice and give hearing to  the
assessee so that appropriate explanation could be given to  the  authorities
by the assessee.  As  no  notice  was  given  to  the  assessee  before  the
assessment, the impugned assessment orders as well as the orders  passed  in
appeal are bad in law.  Thereafter, it had been  submitted  that  merely  on
the basis of two visits to the business  place  of  the  appellant-assessee,
the Assessing Officer could not have jumped to a conclusion  that  the  sale
proceeds received on those two days were standard or normal  and  therefore,
on the basis of those sale proceeds, assessments could not have  been  made.
It had been further submitted that in the business of the assessee, being  a
dealer in eatables, normally there  would  be  huge  variation  in  sale  on
different days.  On a particular day, sale proceeds could be more than  rest
of the days and therefore, on the basis of some  selected  days,  i.e.,  9th
and 10th March, 2000 and 24th October, 2000,  the  Assessing  Officer  could
not have made the assessments.

5.    It had been further  submitted  that  the  penalty  imposed  upon  the
appellant-assessee was based on guess work or  conjectures.   There  was  no
basis for the Assessing Officer  to  believe  that  the  books  of  accounts
maintained by the assessee were not correct and the  facts  found  on  those
selected days when there  were  surprise  visits  by  the  officers  of  the
Department were normal, i.e., the assessee was every day  getting  the  same
amount by way of sale of  eatables.   Moreover,  adjustments  regarding  the
amount of tax recovered had not been made while  calculating  the  estimated
sales.

6.    For the aforestated submissions, the  learned  counsel  appearing  for
the appellant-assessee had submitted that the judgment of  the  High  Court,
confirming the assessment orders, should be quashed and set aside  and  even
the orders imposing penalty should be quashed.

7.    On the other hand, the learned counsel appearing for the  Revenue  had
submitted  that  it  was  apparent  that  the  appellant-assessee  was   not
correctly showing all transactions in his books of accounts.  The said  fact
could be very well seen when  the  representatives  of  the  Department  had
visited the place of business of the assessee on 9th and  10th  March,  2000
and on 24th October, 2000.  The sale proceeds, which had  been  meticulously
recorded on those two days in accounting year 1999-2000  were  Rs.2,13,974/-
and Rs.1,98,009/- respectively whereas total sales for  the  said  year  was
much  less.  In  the  aforestated  circumstances,  average   sale   of   the
aforestated two days was calculated and multiplying the same  by  365  (days
of the year), the Department had arrived at a figure of estimated sales  for
the year 1999-2000 and similarly after making a reasonable addition of  10%,
sale for the  Assessment Year 2000-2001 had been arrived at.

8.    In spite of the notice issued to the assessee for  giving  explanation
with  regard  to  the  discrepancy,  the  assessee  could   not   give   any
satisfactory  explanation  and  therefore,   the   Assessing   Officer   was
constrained to presume that  the  books  of  accounts  were  not  maintained
properly by the appellant- assessee.

9.    As the Assessing Officer had come to the conclusion that the books  of
accounts had not been properly maintained with an  oblique  motive,  penalty
was rightly imposed upon the assessee and the  quantum  of  penalty  imposed
was also just and proper.

10.   For the aforestated reasons, the learned  counsel  appearing  for  the
Revenue had submitted that the assessment orders, which  had  been  affirmed
by all the authorities below and the High Court  are  just  and  proper  and
they need not be interfered with.

11.   We had heard  the  learned  counsel  for  the  parties  and  had  also
considered the relevant orders as well as  legal  submissions  made  by  the
counsel.

12.   We do not find any substance in the submissions made on behalf of  the
appellant-assessee and therefore, we are not inclined to allow  the  appeals
for the reasons stated hereinbelow :

      (i)   The appellant-assessee is making and  selling  sweets,  namkeens
      and  other  eatables.   It  appears  from  the  record  that  when  an
      individual customer was buying eatables of a nominal  value,  possibly
      bill was not being issued.  There was no specific method whereby  each
      and every receipt from the buyers was recorded by  the  assessee.   In
      the aforestated circumstances, possibly due to some doubt, which might
      have arisen, a special search or inspection was made on 9th  and  10th
      March, 2000 and total sale proceeds had been meticulously recorded and
      calculated, which have been stated hereinabove.  On the basis  of  the
      receipts of those two  days,  considering  them  as  a  representative
      sample, the Assessing Officer had come to a conclusion that  the  sale
      proceeds or sales of the appellant-assessee for the year  should  have
      been a particular amount and, in fact, the  amount  reflected  in  the
      books of accounts was much less than the calculations  arrived  at  by
      the Assessing Officer.

      (ii)  It is pertinent to note that the Assessing Officer did not  jump
      to a conclusion without any rhyme or reason.   The  Assessing  Officer
      had called upon  the  assessee  to  explain  the  difference  but  the
      assessee could not or did not give sufficient explanation  as  to  how
      the total sale on the basis of the average daily sale  arrived  at  by
      the Assessing Officer was not correct.  One can very well presume that
      in case of a dealer dealing in  eatables,  and  specially  sweets  and
      namkeens, on a particular day like a holiday or  on  account  of  some
      festivity, total sale can be more than other days.  For example,  sale
      would normally be  more  on  Saturdays,  Sundays  and  other  holidays
      because more people would be visiting such eateries.  In  the  instant
      case, had those two days, when business premises of the  assessee  was
      inspected and the sale proceeds were recorded, been some special days,
      the  assessee  could  have  placed  those  special  facts  before  the
      Assessing Officer,  but  nothing  of  that  sort  was  done.   In  the
      circumstances, in our opinion, the Assessing Officer had rightly  come
      to the conclusion  that  the  books  of  accounts  maintained  by  the
      assessee were not showing correct sales and therefore, the  conclusion
      arrived at by him cannot  be  said  to  be  incorrect.   There  was  a
      reasonable basis for him to arrive at the said conclusion,  especially
      when the assessee did not offer any satisfactory explanation in  spite
      of issuance of notice.

      (iii) The submission made by the learned  counsel  appearing  for  the
      appellant-assessee that no notice was issued, as  required  under  the
      Act,  before  framing  the  assessment  is  also  not  correct.    The
      assessment orders refer to notices issued to  the  assessee  and  they
      also record the fact that no satisfactory explanation had been offered
      by the appellant-assessee to make out  a  case  that  there  was  some
      special reason for which sale of sweets, namkeen etc. on 9th and  10th
      March, 2000 was exceptionally more.

      (iv)  Once the Assessing Officer had rightly come  to  the  conclusion
      that the books of accounts were not properly maintained and  were  not
      reflecting each and every transaction, in our opinion,  the  Assessing
      Officer had rightly come to a conclusion that total possible sale  was
      much higher and the conclusion  so  arrived  at  was  based  on  sound
      reasons.  We also do not  agree  with  the  learned  counsel  for  the
      assessee that proper adjustments regarding sales tax had not been made
      by the Assessing Officer in the process of the assessment.

      (v)   Once it is found that with some oblique motive, effort was  made
      to show lesser sale proceeds than  the  actual,  the  orders  imposing
      penalty can not be questioned.  We are,  therefore,  not  inclined  to
      interfere even with the quantum of penalty.

13.   For the aforestated reasons, in our  opinion,  the  impugned  judgment
delivered by the High Court is just and proper, which does not  require  any
interference and therefore, the appeals are dismissed with no  order  as  to
costs.


                                 …………………………….,J.
                                                 (Anil R. Dave)



                                                       …………………………….,J.
                                        (Dipak Misra)
New Delhi;
April 9, 2014

-----------------------
12

Dying Declaration - Statement recorded become and treated as Dying Declaration - Sanctity of the same - when it was not recorded word by word , when it was interpolated with new names - when the time was corrected - when the scribe admitted that it was recorded at dictation - Trial court rightly acquitted the accused - High court unnecessarily interfered with the acquittal - Apex court held that The sanctity is attached to a dying declaration because it comes from the mouth of a dying person. If the dying declaration is recorded not directly from the actual words of the maker but as dictated by somebody else, in our opinion, this by itself creates a lot of suspicion about credibility of such statement and the prosecution has to clear the same to the satisfaction of the court. The trial court on over-all consideration of the evidence of PW-25, PW-30 and PW-36 coupled with the fact that there was over-writing about the time at which the statement was recorded and also insertion of two names by different ink did not consider it safe to rely upon the dying declaration and acquitted the accused for want of any other evidence. In the circumstances, in our view, it cannot be said that the view taken by the trial court on the basis of evidence on record was not a possible view. The accused were entitled to the benefit of doubt which was rightly given to them by the trial court. = Muralidhar @ Gidda & Anr. … Appellants Versus State of Karnataka … Respondent= 2014 (April.Part) http://judis.nic.in/supremecourt/filename=41400

Dying Declaration - Statement recorded become as Dying Declaration after his death - Sanctity of the same - when it was not recorded word by word , when it was interpolated with new names - when the time was corrected - when the scribe admitted that it was recorded at dictation - Trial court rightly acquitted the accused - High court unnecessarily interfered with the acquittal - Apex court held that The sanctity is attached  to  a  dying  declaration  because  it comes from the mouth of  a  dying  person.    If  the  dying  declaration  is recorded not directly from the actual words of the maker but as dictated  by somebody else, in our opinion, this by itself creates  a  lot  of  suspicion about credibility of such statement and the prosecution  has  to  clear  the same to the  satisfaction  of  the  court.   The  trial  court  on  over-all consideration of the evidence of PW-25, PW-30 and  PW-36  coupled  with  the fact that there was over-writing about the time at which the  statement  was recorded and also insertion of two names by different ink did  not consider it safe to rely upon the dying declaration and  acquitted  the  accused  for want of any other evidence.  In the circumstances, in our  view,  it  cannot be said that the view taken by the trial court on the basis of  evidence  on record was not a possible view. The accused were entitled to the benefit  of doubt which was rightly given to them by the trial court. =

Ex.P-22 is in  Kannada,  which
in English translation reads:
           
“The  statement  of  Pradeep  son  of  Swamygowda,   28   years,
           Vakkaligaru by community, agriculturist residing  at  Majigepura
           village, Srirangapatna Taluk. 
Today at about 8.30 p.m. night,  I
           was sitting in front of shaving shop by  the  side  of  shop  of
           Javaregowda on K.R.S. – Majigepura  Road  along  with  Vyramudi,
           Prakash and Umesh.  
At that time Naga, S/o Ammayamma, Jagga  S/o
           Sentu Kumar’s sister, Gunda, Gidda, S/o Fishari Nanjaiah, Swamy,
           Manju and Hotte Ashoka and others who  were  having  old  enmity
           assaulted me by means of chopper, long on my  hand,  head,  neck
           and on other parts of the body with an intention to kill me  and
           they have assaulted Umesh who was with me.  
Vyramudi said do not
           kill us and went away. Prakash ran  away.   
Please  take  action
           against those who have attempted to kill me.”

3.          After registration of the First Information Report  (Exhibit  P-
5) on the basis of the above statement made  by  Pradeep  which  has  become
dying declaration in view of his death,  the  investigation  commenced.=

The sanctity is attached  to  a  dying  declaration  because  it
comes from the mouth of  a  dying  person.   
If  the  dying  declaration  is
recorded not directly from the actual words of the maker but as dictated  by
somebody else, in our opinion, this by itself creates  a  lot  of  suspicion
about credibility of such statement and the prosecution  has  to  clear  the
same to the  satisfaction  of  the  court.   
The  trial  court  on  over-all
consideration of the evidence of PW-25, PW-30 and  PW-36  coupled  with  the
fact that there was over-writing about the time at which the  statement  was
recorded and also insertion of two names by different ink did  not  consider
it safe to rely upon the dying declaration and  acquitted  the  accused  for
want of any other evidence.  
In the circumstances, in our  view,  it  cannot
be said that the view taken by the trial court on the basis of  evidence  on
record was not a possible view. 
The accused were entitled to the benefit  of
doubt which was rightly given to them by the trial court.
20.         The High Court on consideration of  the  same  evidence  took  a
different view  and  interfered  with  the  judgment  of  acquittal  without
properly keeping in mind that the presumption of innocence in favour of  the
accused has been strengthened by their acquittal from the  trial  court  and
the view taken by the trial court as to the credibility of Ex.P-22  and  the
evidence of PW-25, PW-30 and PW-36 was a  possible  view.   The  High  Court
while upsetting the judgment of acquittal has not  kept  in  view  the  well
established  principles  in  hearing  the  appeal  from  the   judgment   of
acquittal.
21.               Accordingly,  the  appeals  are  allowed.  

2014 (April.Part) http://judis.nic.in/supremecourt/filename=41400
R.M. LODHA, SHIVA KIRTI SINGH

                       REPORTABLE




                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION


                       CRIMINAL  APPEAL NO.551 OF 2011






Muralidhar @ Gidda & Anr.                          … Appellants


                   Versus

State of Karnataka                                         … Respondent


                                    WITH


                       CRIMINAL  APPEAL NO.791 OF 2011


                                     AND


                      CRIMINAL  APPEAL NO.1081 OF 2011




                                  JUDGMENT


R.M. LODHA, J.


            These three criminal appeals  arise  from  the  common  judgment
and, therefore, they were heard together and are being disposed  of  by  the
common judgment.
2.          The statement (Ex.P-22) recorded by  the  police  on  17.08.2002
between 9.55 P.M. and 10.20 P.M. at  K.R.  Hospital,  Mandya  triggered  the
prosecution of the appellants and one Swamy.  Ex.P-22 is in  Kannada,  which
in English translation reads:
           “The  statement  of  Pradeep  son  of  Swamygowda,   28   years,
           Vakkaligaru by community, agriculturist residing  at  Majigepura
           village, Srirangapatna Taluk. Today at about 8.30 p.m. night,  I
           was sitting in front of shaving shop by  the  side  of  shop  of
           Javaregowda on K.R.S. – Majigepura  Road  along  with  Vyramudi,
           Prakash and Umesh.  At that time Naga, S/o Ammayamma, Jagga  S/o
           Sentu Kumar’s sister, Gunda, Gidda, S/o Fishari Nanjaiah, Swamy,
           Manju and Hotte Ashoka and others who  were  having  old  enmity
           assaulted me by means of chopper, long on my  hand,  head,  neck
           and on other parts of the body with an intention to kill me  and
           they have assaulted Umesh who was with me.  Vyramudi said do not
           kill us and went away. Prakash ran  away.   Please  take  action
           against those who have attempted to kill me.”

3.          After registration of the First Information Report  (Exhibit  P-
5) on the basis of the above statement made  by  Pradeep  which  has  become
dying declaration in view of his death,  the  investigation  commenced.   In
the course of investigation, 37 witnesses were examined.  The  investigating
officer, on completion of investigation, submitted challan  against  Naga  @
Bagaraju (A-1), Jaga @ Santhosh Kumar  (A-2),  S.  Sathish  @  Gunda  (A-3),
Muralidhar @ Gidda (A-4), Swamy @ Koshi (A-5) and Manju (A-6).
4.          The concerned Magistrate  then  committed  the  accused  to  the
court of Sessions for trial.   The  Court  of  Sessions  Judge,  Fast  Track
Court–I, Mandya conducted the trial  against A-1 to  A-6  for  the  offences
punishable under Sections 302, 307, 144, 148 read with Section  149  of  the
Indian Penal Code, 1860 (for short,  “IPC”).  The  prosecution  examined  37
witnesses of which PW-4 (Umesha), PW-5 (Prakash) and PW-15  (Vyramudi)  were
produced as eye-witnesses.  Exhibit P-22 is recorded by  PW-30  (Rajashekar)
on the oration of PW-36 (Kodandaram, PSI) in  the  presence  of  PW-25  (Dr.
Balakrishna).
5.          The  three  eye-witnesses  PW-4,  PW-5  and  PW-15  have  turned
hostile to the case of prosecution and have not  supported  the  prosecution
version at all.  In the circumstances, the only  evidence  that  has  become
significant is the dying declaration (Ex.P-22).   The  trial  court  by  its
judgment  dated  28.09.2004  on  consideration  of  the  entire   oral   and
documentary evidence reached the conclusion that prosecution had  failed  to
prove the offence against the accused persons and,  accordingly,   acquitted
them.
6.          The State of Karnataka preferred an appeal before the  Karnataka
High  Court  against  the  judgment  of  the  Fast  Track  Court-I,   Mandya
acquitting the accused.  The High Court on  hearing  the  public  prosecutor
and  the  counsel  for  the  accused  vide  its  judgment  dated  21.10.2010
maintained the acquittal of  A5 (Swamy) but convicted A1 to A4  and  A6  for
the offences under Section 302 read with Section 149 IPC and sentenced  them
to undergo imprisonment for life with fine  and  defaulting  sentence.   The
High Court has also convicted them for the offence  under  Section  148  IPC
and they were sentenced to suffer rigorous imprisonment for one year.   Both
sentences have been ordered to run concurrently.  It is from  this  judgment
that these appeals, by special leave, have arisen.
7.          The High Court has convicted the  appellants  on  the  basis  of
dying declaration alone, as in its view the dying  declaration  is  credible
and genuine.  In this regard, the reasoning of the  High  Court  is  broadly
reflected in paragraphs 16 and 17 which reads as follows:
             “16. Having heard both sides and  carefully  gone  through  the
             evidence of the witnesses and on reappreciation of the evidence
             we find that Ex. P22 which is  the  dying  declaration  of  the
             deceased has been recorded naturally  and  truthfully.  PW25  –
             Doctor has categorically stated  that  the  injured  was  in  a
             position to speak and give statement and further he has  signed
             Ex.P.22.  Under these circumstances, it could be gathered  that
             PW25 – the Medical Officer was not only a person  present  when
             Ex. P.22 was recorded, but also asserted that the  patient  was
             in a position to give such statement.  However,  on  a  careful
             scrutiny of Ex.P.22, it is  seen  that  the  name  of  Swamy  –
             Accused No.5 has  been  added  subsequently  and  there  is  no
             initial of any officer by the side of the name of Swamy and the
             colour of the ink differs from the other handwriting.  In  view
             of the foregoing discussions we hold that the dying declaration
             of deceased Pradeep – Ex. P.22 is genuine and has been recorded
             by PW30 – Rajshekhar in the presence of PW25 – Dr.  Balakrishan
             when the deceased was in fit condition to  give  statement  and
             hence, a conviction can be based on the said dying declaration.




             17.  So far as the capacity of  the  deceased  to  narrate  the
             incident regarding the cause of his injuries is  concerned,  on
             perusal of Ex. P.3 the  accident  register  it  is  clear  that
             Ex.P.3 was brought into existence at 9.30 p.m. and in Ex.P3  it
             is mentioned that the assault was by six persons and the  names
             of all the six persons are mentioned therein without  any  over
             writing.  The over writing pertains only  to  the  presence  of
             Vyramudi and it is the contention of the  learned  counsel  for
             the accused that over the name of Vyramudi name of  Pradeep  is
             written.  In Ex.P.23 –  requisition  letter  it  is  seen  that
             signature of Vyramudi is separately  taken  by  the  doctor  as
             brought by him and, therefore, the presence of either  Vyramudi
             or Pradeep in the hospital at the time when  the  deceased  was
             brought to the hospital cannot be disputed at all.”




8.          The trial Court, however, held that it was not safe  to  act  on
the dying declaration (Ex.P-22).  The trial court on consideration of  Ex.P-
22 and the evidence of PW-25, PW-36 and PW-30 concluded  that  the  time  of
recording Ex. P-22  did  not  inspire  confidence  and  the  credibility  of
Exhibit P-22 had not been established to the satisfaction of the  court  and
conviction cannot be based on Exhibit P-22 and the deposition of PW-36,  PW-
25 and PW-30.
9.          The only question that arises for  our  consideration  in  these
appeals is, whether the High Court was justified in upsetting  the  view  of
the trial court on re-appreciation of the evidence of PW-25, PW-30  and  PW-
36 and Exhibit P-22.
10.         Lord Russell in Sheo Swarup[1], highlighted the approach of  the
High Court as an appellate  court  hearing  the  appeal  against  acquittal.
Lord Russell said, “… the High Court should  and  will  always  give  proper
weight and consideration to such matters as  (1)  the  views  of  the  trial
Judge as to the  credibility  of  the  witnesses;  (2)  the  presumption  of
innocence in favour of the accused, a presumption certainly not weakened  by
the fact that he has been acquitted at his  trial;  (3)  the  right  of  the
accused to the benefit of any doubt; and (4) the slowness  of  an  appellate
court in disturbing a finding of fact arrived at by  a  Judge  who  had  the
advantage of seeing the witnesses.”  The opinion of  the  Lord  Russell  has
been followed over the years.
11.         As early as in 1952, this  Court  in  Surajpal  Singh[2]   while
dealing with the powers of the High Court in  an  appeal  against  acquittal
under Section 417 of the Criminal Procedure Code  observed,   “……….the  High
Court has full power  to  review  the  evidence  upon  which  the  order  of
acquittal was founded, but it is equally well settled that  the  presumption
of innocence of the accused is further reinforced by his  acquittal  by  the
trial court, and the findings of the trial court which had the advantage  of
seeing the witnesses and hearing their evidence can  be  reversed  only  for
very substantial and compelling reasons.”
12.         The approach of  the  appellate  court  in  the  appeal  against
acquittal has been dealt with by  this  Court  in  Tulsiram  Kanu[3],  Madan
Mohan Singh[4],  Atley[5]  ,  Aher  Raja  Khima[6],  Balbir  Singh[7],  M.G.
Agarwal[8], Noor Khan[9], Khedu  Mohton[10],  Shivaji  Sahabrao  Bobade[11],
Lekha Yadav[12], Khem Karan[13], Bishan Singh[14],  Umedbhai  Jadavbhai[15],
K.  Gopal  Reddy[16],  Tota  Singh[17],  Ram   Kumar[18],   Madan   Lal[19],
Sambasivan[20], Bhagwan Singh[21], Harijana  Thirupala[22],  C.  Antony[23],
K. Gopalakrishna[24], Sanjay Thakran[25]  and  Chandrappa[26].   It  is  not
necessary to deal with these cases individually.  Suffice  it  to  say  that
this Court has consistently  held  that  in  dealing  with  appeals  against
acquittal, the appellate court must bear in mind the  following:  (i)  There
is presumption of  innocence  in  favour  of  an  accused  person  and  such
presumption is strengthened by the order of acquittal passed in  his  favour
by the trial court, (ii) The accused person is entitled to  the  benefit  of
reasonable doubt when  it  deals  with  the  merit  of  the  appeal  against
acquittal,   (iii) Though, the power of the appellate court  in  considering
the appeals against acquittal are as extensive  as  its  powers  in  appeals
against  convictions  but  the  appellate  court  is  generally   loath   in
disturbing the finding of fact recorded  by  the  trial  court.   It  is  so
because the trial court had an advantage  of  seeing  the  demeanor  of  the
witnesses.   If the trial court takes a reasonable view of the facts of  the
case, interference by the appellate court with the judgment of acquittal  is
not justified.  Unless, the conclusions  reached  by  the  trial  court  are
palpably wrong or based on erroneous view of the law or if such  conclusions
are allowed to stand, they are likely to result  in  grave  injustice,   the
reluctance on the part of the  appellate  court  in  interfering  with  such
conclusions is fully justified, and (iv) Merely because the appellate  court
on re-appreciation and re-evaluation of the evidence is inclined to  take  a
different  view,  interference  with  the  judgment  of  acquittal  is   not
justified if the view taken by the trial court  is  a  possible  view.   The
evenly balanced views of the evidence must not result  in  the  interference
by the appellate court in the judgment of the trial court.
13.         In Ghurey Lal[27], the  Court  has  culled  out  the  principles
relating to the appeals from a judgment of acquittal which are in line  with
what we have observed above.
14.         Now, we shall examine  whether  or  not  the  impugned  judgment
whereby the  High  Court  interfered  with  the  judgment  of  acquittal  is
justified.
15.              Of the 37 witnesses examined by the prosecution, PW-4,  PW-
5 and PW-15 are the eye-witnesses but they  have turned hostile to the  case
of prosecution.   The first medical examination of the deceased Pradeep  and
so also the injured Umesha was done by PW1 (Dr. Latha) at  about  9.30  P.M.
on 17.08.2002.  She has not certified that Pradeep was in fit state to  make
any statement. PW-25 (Dr. Balakrishna) at the relevant  time  was  Assistant
Professor of Surgery at K.R.  Hospital  where  deceased  Pradeep  was  taken
immediately after the incident.  At about 9.40  p.m.  on  17.08.2002,  PW-36
(Kodandaram, PSI) gave a memo to PW-25 stating that  one  patient  (Pradeep)
was admitted in the hospital and requested him to verify as to  whether  the
patient was in a position to give statement.   In his cross-examination, PW-
25 has stated that at 9.35 P.M., he saw the patient (Pradeep)  when  he  was
kept in operation theatre of casualty for emergency treatment.  He has  also
deposed that a group  of  doctors  was  providing  treatment  to  him.   His
deposition does not establish that Pradeep  was  under  his  treatment.  The
recording of Pradeep’s statement by a constable (PW-30) as dictated  by  PW-
36 (PSI) in this situation raises many questions.   The  trial  court  found
this absurd.  It is the prosecution version that PW-30 has recorded  Ex.P-22
 as dictated by PW-36 (PSI).  Thus,  Ex.P-22 is not in actual words  of  the
maker.   The  trial  court  in  this  background  carefully  considered  the
evidence of PW-25, PW-30 and PW-36 along with Ex.P-22.  The trial court  has
noted that PW-25 failed to confirm in his testimony  that  he  was  treating
deceased Pradeep when he was  brought  to  the  hospital.   Moreover,  PW-25
admitted over-writing with regard to  the  time  written  on  Ex.P-22.   The
trial court also observed that though there was  lot  of  bleeding  injuries
found on the person of  Pradeep,  PW-25  did  not  say  anything  about  the
quantity of loss of blood.
16.         Dealing with  the  testimony  of  PW-30,  the  trial  court  has
observed that in his cross-examination, he has  admitted  that  he  did  not
record the statement in the words of  the  maker  (Pradeep)  but  wrote  the
statement as dictated by PW-36.  Moreover, PW-30  in  his  cross-examination
had admitted that at the time Pradeep was attended to  by  the  doctors,  he
was not inside.
17.         Then, in respect of Ex.P-22, the trial court observed  that  the
names of accused Gunda (A-3) and Swamy (A-5) appear to  have  been  inserted
in different ink later on.
18.         On a very elaborate consideration of the  entire  evidence,  the
trial court was of the view that Ex.P-22 did not inspire confidence and  the
credibility of Ex.P-22 has not been established to the satisfaction  of  the
court.  Accordingly, the trial court held that  conviction  of  the  accused
persons cannot be based on Ex.P-22 and the deposition of  PW-36,  PW-25  and
PW-30.
19.         The sanctity is attached  to  a  dying  declaration  because  it
comes from the mouth of  a  dying  person.   If  the  dying  declaration  is
recorded not directly from the actual words of the maker but as dictated  by
somebody else, in our opinion, this by itself creates  a  lot  of  suspicion
about credibility of such statement and the prosecution  has  to  clear  the
same to the  satisfaction  of  the  court.   The  trial  court  on  over-all
consideration of the evidence of PW-25, PW-30 and  PW-36  coupled  with  the
fact that there was over-writing about the time at which the  statement  was
recorded and also insertion of two names by different ink did  not  consider
it safe to rely upon the dying declaration and  acquitted  the  accused  for
want of any other evidence.  In the circumstances, in our  view,  it  cannot
be said that the view taken by the trial court on the basis of  evidence  on
record was not a possible view. The accused were entitled to the benefit  of
doubt which was rightly given to them by the trial court.
20.         The High Court on consideration of  the  same  evidence  took  a
different view  and  interfered  with  the  judgment  of  acquittal  without
properly keeping in mind that the presumption of innocence in favour of  the
accused has been strengthened by their acquittal from the  trial  court  and
the view taken by the trial court as to the credibility of Ex.P-22  and  the
evidence of PW-25, PW-30 and PW-36 was a  possible  view.   The  High  Court
while upsetting the judgment of acquittal has not  kept  in  view  the  well
established  principles  in  hearing  the  appeal  from  the   judgment   of
acquittal.
21.               Accordingly,  the  appeals  are  allowed.   The   impugned
judgment is set aside.  The judgment of the court of  Sessions  Judge,  Fast
Track Court–I at Mandya dated 28.09.2004 is restored.  The appellants  shall
be set at liberty forthwith, if not required in any other case.

                                       …..………………………….J.
                                        (R.M. Lodha)


                                       …..………………………….J.
                                        (Shiva Kirti Singh)
New Delhi,
April 09, 2014.


-----------------------
[1]    Sheo Swarup v. King Emperor [AIR 1934 Privy Council 227]
[2]    Surajpal Singh v. State; [AIR 1952 SC 52]
[3]    Tulsiram Kanu v. State;[AIR 1954 SC 1]
[4]    Madan Mohan Singh v. State of U.P.; [AIR 1954 SC 637]
[5]    Atley v. State of U.P.; [AIR 1955 SC 807]
[6]    Aher Raja Khima v. State of Saurashtra;   [AIR 1956 SC 217]
[7]    Balbir Singh v. State of Punjab; [AIR 1957 SC 216]
[8]     M.G. Agarwal v. State of Maharashtra; [AIR 1963 SC 200]
[9]    Noor Khan v. State of Rajasthan; [AIR 1964 SC 286]
[10]   Khedu Mohton v. State of Bihar;  [(1970) 2 SCC 450],
[11]   Shivaji Sahabrao Bobade v. State of Maharashtra; [(1973) 2 SCC 793]
[12]   Lekha Yadav v. State of Bihar;  [(1973) 2 SCC 424]
[13]   Khem Karan v. State of U.P.; [(1974) 4 SCC 603]
[14]   Bishan Singh v. State of Punjab; [(1974)  3 SCC 288]
[15]   Umedbhai Jadavbhai v. State of Gujarat; [(1978) 1 SCC 228]
[16]   K. Gopal Reddy v. State of A.P. ; [(1979) 1 SCC 355]
[17]   Tota Singh v. State of Punjab [(1987) 2 SCC 529]
[18]    Ram Kumar v. State of Haryana; [1995 Supp (1) SCC 248]
[19]   Madan Lal v. State of J&K;  [(1997) 7 SCC 677]
[20]   Sambasivan v. State of Kerala; [(1998) 5 SCC 412]
[21]   Bhagwan Singh v. State of M.P.; [(2002) 4 SCC 85]
[22]   Harijana Thirupala v. Public Prosecutor, High Court of A.P.; [(2002)
6 SCC 470]
[23]   C. Antony v. K. G. Raghavan Nair; [(2003) 1 SCC 1]
[24]    State of Karnataka v. K. Gopalakrishna;  [(2005) 9 SCC 291]
[25]   State of Goa v. Sanjay Thakran; [(2007) 3 SCC 755]
[26]   Chandrappa v. State of Karnataka; [(2007) 4 SCC 415]
[27]   Ghurey Lal v. State of U.P.; [(2008) 10 SCC 450]

-----------------------
13

ACT: Limitation Act, 1963: Section 5-Appeals filed by Government- Condonation of delay- 'Sufficient cause' - Expression to receive liberal construction so as to advance substantial justice-Lapse on part of Government Pleader- How far a 'sufficient cause'. Constitution of India, 1950: Article 136 -Appeal to Supreme Court against order of High Court condoning delay in filing appeal-High Court meanwhile disposing the main appeal on merit-Does not bar Supreme Court of consideration of correctness of High Court order condoning delay.=This is an instance of what are called "dependent orders". If the order excusing the delay is itself set aside in these appeals, the further exercise, made in the meanwhile, by the High Court finally disposing of the appeals, would be rendered nugatory.= G. RAMEGOWDA, MAJOR, ETC. Vs. RESPONDENT: SPECIAL LAND ACQUISITION OFFICER, BANGALORE.= 1988 ( March. Part ) http://judis.nic.in/supremecourt/filename=8397

ACT:
     Limitation  Act, 1963:  Section 5-Appeals  filed  by
Government-  Condonation  of  delay-  'Sufficient  cause'  -
Expression to  receive liberal construction so as to advance
substantial justice-Lapse on part of Government Pleader- How
far a 'sufficient cause'.
     Constitution of  India, 1950:  Article 136  -Appeal  to
Supreme Court against order of High Court condoning delay in
filing appeal-High Court meanwhile disposing the main appeal
on merit-Does  not bar Supreme Court  of  consideration  of
correctness of High Court order condoning delay.=
This  is an  instance of  what are called "dependent
orders". If the order excusing the delay is itself set aside
in  these   appeals,  the  further  exercise,  made  in  the
meanwhile, by  the  High  Court  finally  disposing  of  the
appeals, would be rendered nugatory.
1988 ( March. Part ) http://judis.nic.in/supremecourt/filename=8397
VENKATACHALLIAH, M.N. (J)

PETITIONER:
G. RAMEGOWDA, MAJOR, ETC.

Vs.

RESPONDENT:
SPECIAL LAND ACQUISITION OFFICER, BANGALORE.

DATE OF JUDGMENT10/03/1988

BENCH:
VENKATACHALLIAH, M.N. (J)
BENCH:
VENKATACHALLIAH, M.N. (J)
NATRAJAN, S. (J)

CITATION:
 1988 AIR  897  1988 SCR  (3) 198
 1988 SCC  (2) 142  JT 1988 (1) 524
 1988 SCALE  (1)479


ACT:
     Limitation Act, 1963:  Section 5-Appeals  filed  by
Government-  Condonation  of  delay-  'Sufficient  cause'  -
Expression to  receive liberal construction so as to advance
substantial justice-Lapse on part of Government Pleader- How
far a 'sufficient cause'.
     Constitution of  India, 1950:  Article 136 -Appeal  to
Supreme Court against order of High Court condoning delay in
filing appeal-High Court meanwhile disposing the main appeal
on merit-Does  not bar Supreme Court  of  consideration  of
correctness of High Court order condoning delay.



HEADNOTE:
%
     The lands of the appellants  were  acquired  for the
purpose of  the 'University  of Agricultural  Sciences'  at
Bangalore.
     The Civil Judge in  Land Acquisition  References under
Section 18 of the Land Acquisition Act passed a common award
in the three  Land  Acquisition  References  on  17.7.1970.
Application for certified copies  was made  on  31.8.1971.
Copies were  obtained on 5.1.1972 and appeals were lodged in
the High  Court on  19.1.1972 in one appeal and on 10.4.1972
in the two other  appeals. There  was substantial  delay in
preferring the three appeals.
     The Government in support of its prayer for condonation
of delay  narrated the chronological sequence of events and
the protracted correspondence between the Government-Pleader
and the Government,  and  the difficulties  faced  by the
administration in  even ascertaining  the correct  state  of
affairs owing  to the  negative and  evasive attitude of the
Government Pleaders.
     In its  appeals the  State contended that both the Land
Acquisition officer and the Civil Judge had steeply enhanced
the compensation  for the lands of the appellants. The lands
that had been purchased by the claimant in the year 1962 for
a sum  of Rs.  7,000 per acre, were acquired pursuant to the
notification dated 2.3.1963, that the Award of the Land
199
Acquisition Officer  granting Rs.58,000 per acre was unduly
generous for the acquisition was just about a year after the
purchase. and  that the further enhancement  by  the  Civil
Court to  Rs. 1,45,200 per acre.  clearly suffered from the
vice of extreme excessiveness.
     The High  Court noticed that the Government Pleader who
was in office till  15.12.1970 had  applied  for  certified
copies on  20.7.1970, but  the application was allowed to be
dismissed for  default and  that in  one case he appeared to
have taken  away the certified copy even after he had ceased
to be  a Government  Pleader.  After  consideration  of the
matter the  Division Bench  of the  High Court condoned the
delay in the filing in the appeals.
     In the  appeals  to  this Court by  the appellants-
claimants it  was contended  that the High Court fell into a
manifest  error in  condoning the  inordinate and  wholly
unjustified delay  and that  the explanation  offered before
and accepted  by the  High Court  cannot. in law. be held to
constitute 'sufficient cause' for  purposes and  within the
meaning of.  Section 5 of the Limitation Act. 963. The State
contested the appeals. by contending that the High Court had
heard and  disposed of the appeals before it on the merits.
substantially  reducing  the  compensation   and  that the
appellants had already preferred  Special  leave  Petitions
against the  final order  as  such,  and  that the  appeals
against the  mere condonation of delay do not survive at all
and must  be held to have become infructuous. It was further
contended that the Government Pleader whom  the Government
had necessarily to and did trust  had let down that trust,
and  there   was  therefore   sufficient  ground   for the
condonation of the delay  so as  to promote public interest
and do substantial justice.
     Declining to  interfere with the High Court's order and
dismissing the Appeals,
^
     HELD: 1. The fact that the main appeals are themselves,
in the meanwhile, disposed  of finally on the merits by the
High Court  would not  by itself  detract from and bar the
consideration of  the correctness of the order condoning the
delays. This  is an  instance of  what are called "dependent
orders". If the order excusing the delay is itself set aside
in  these   appeals,  the  further  exercise,  made  in the
meanwhile, by  the  High  Court finally  disposing  of the
appeals, would be rendered nugatory. [203H; 204A-B]
     2. There  is no general principle saving the party from
all mistakes of its counsel. [205F]
200
     3. Each case  will  have  to  be  considered-on the
particularities of its own special facts. [205G]
     4. If there is negligence, deliberate or gross inaction
or lack of bona  fides on  the part  of the  party  or its
counsel there  is no  reason why the opposite side should be
exposed to a time-barred appeal. [205F-G]
     5. The  expression 'sufficient  cause' in Section 5 of
the Limitation Act, 1963 must receive a liberal construction
so as to advance substantial justice and generally delays in
preferring appeals  are required  to  be  condoned  in the
interest of justice where no gross negligence or deli berate
inaction or  lack of  bona fides  is imputable to the party
seeking condonation of the delay. [205G-H]
     6(i) The  law of  limitation is, no doubt, the same for
private citizen as for Governmental-authorities. Government,
like any  other. litigant  must take  responsibility for the
acts or omissions of its officers. But a somewhat different
complexion is  imparted to the matter where Government makes
out a  case where public interest was shown to have suffered
owing to  acts of  fraud or  bad faith on the part of its
officers or  agents and where the  officers were clearly at
cross purposes with it. [206D-E]
     (ii) If appeals brought by Government are lost for such
default, no  person is individually affected; but what, in
the ultimate analysis, suffers is public interest. [206C]
     7(i).  In assessing  what,   in a  particular  case,
constitutes 'sufficient cause'. for purpose of Section 5 it
might, perhaps be somewhat  unrealistic to exclude from the
considerations that  go into  the judicial  verdict, factors
which are  peculiar to and characteristic of the functioning
of  the  Government.  Implicit  in  the   very  nature  of
Governmental functioning  is procedural delay incidental to
the decision making process. [206E-H]
     (ii) Due recognition of these limitations on Government
functioning-within a reasonable limit-is necessary. It would
be unfair  and unrealistic  to put  Government and  private
parties on the same footing in all respects in such matters.
[206G]
     8. In the opinion of the High Court, the conduct of the
law officers  of the  Government placed the Government in a
predicament and that it  was one  of those  cases where the
malafides of the officers should
201
not be imputed to Government. It relied upon and trusted its
law officers.  It took quite some time for the Government to
realise that  the law  officers failed that  trust.  [206H;
207A,C]
     9. The  criticism that  the delay on the part of the
Government even after 20.1.1971 for over one year cannot be
said to be either  bonafide or compelled by reasons beyond
its control  is not  without substance. Government could and
ought to  have moved  with greater  diligence  and  dispatch
consistent with the urgency of the situation. The conduct of
the Government was perilously close to  such inaction  as
might, perhaps have justified rejection of  its prayer for
condonation. But  in the  interest of  keeping the stream of
justice pure and clean the awards under appeal should not be
permitted to assume finality without an examination of their
merits. [207D-F]
     Shakuntala Devi Jain v. Kuntal Kumari,[1969] 1 SCR 106;
Concord of  India Insurance Co. Ltd. v. Nirmala Devi & Ors.,
[1979] 3  SCR 694;  Lala Mata  Din v. A. Narayanan, [1970] 2
SCR 90; Collector, Land Acquisition v. Katiji, [1987] 2 SCC
107; National  Bank of Wales Ltd.,  [1899] 2 L.R.629 at 673
and Special  Land Acquisition Officer v. B.M. Krishnamurthy,
[1985] 1 SCC 469, referred to.



JUDGMENT:
     CIVIL APPELLATE  JURISDICTION Civil Appeal Nos. 856 and
857 of 1974 Etc.
     From the  Judgment and  order dated 13/14.6.1973 of the
Mysore High  Court in  Misc. First Appeal Nos 290 and 293 of
1973
     R.B. Datar and Ravi P Wadhwani for the Appellants.
     M. Veerappa for the Respondent.
     The Judgment of the Court was delivered by
     VENKATACHALIAH,  J.   These  three  appeals,  by the
claimant-respondents in certain  Land Acquisition  Appeals
before the  High Court, are preferred, by  Special  Leave,
against the  common order  dated 14.6 1973 of the High Court
of Mysore  (Karnataka) condoning,  under Section  5  of the
Limitation Act, 1963, certain delays on the part of the Land
Acquisition officer  in preferring  the three  corresponding
appeals in  M.F.A. No. 290 of 1973, M.F.A. 293 of 1973 and
M.F.A. No. 289 of 1973 respectively
202
     The appeals before the High Court were directed against
the  common-award   made  by   the  Civil  Judge,  Bangalore
District,  in  certain Land  Acquisition  References  under
Section 18 of the Land Acquisition Act steeply enhancing the
compensation for  the lands  of the  appellants acquired for
the purpose  of the  University of Agricultural Sciences' at
Bangalore. The circumstances leading upto and necessitating
the prayer for the condonation of the delays before the High
Court seem  somewhat unfortunate,  casting, as they do,  as
persions on  the probity  and rectitude of the conduct and
good faith  of the  Government Counsel entrusted  with the
conduct of land acquisition cases.
     2. The  common award,  in the  three  land acquisition
references  was  passed  by  the  learned  Civil  Judge  on
17.7.1970. Application for certified  copies  was  made  on
31.8.1971; copies obtained on 5.1.1972 and M.F.A. No. 289 of
1973 was  lodged before the High Court on 19.1.1972 and the
other two  appeals viz.,  M.F.A. 290 of 1973 and 293 of 1973
on  10.4.1972. There  were,  thus,  substantial  delays  in
preferring the appeals.
     The Land Acquisition officer, appellant before the High
Court, filed  applications to have these delays excused. The
Division-Bench of  the High  Court was persuaded to make an
order condoning the delay.
     The grievance  of the State in the appeals was that the
lands which had been purchased in the year 1962 for a sum of
Rs.7,000 per acre, were acquired pursuant to the preliminary
notification dated  2.3.1963  and  the award  of  the Land
Acquisition officer  granting Rs.58,000 per acre was itself
unduly generous   having  regard   to the  fact  that the
acquisition was just about an year after the purchase by the
claimants and  that the further enhancement  by  the  Civil
Court to Rs.1,45,200 per acre clearly suffered from the vice
of extreme excessiveness
     3. Sri.  R.B.  Datar,  learned  counsel  appearing  in
support of  these appeals  assailed the order of  the High
Court on the ground that the High Court fell into a manifest
error in  condoning these  inordinate and wholly unjustified
delays and that explanation offered before, and accepted by,
the High  Court sarnat,  in  law,  be held  to  constitute
'sufficient cause'  for purposes  and within the meaning of,
Section 5. Learned Counsel strenuously urged that the rights
vesting in  the successful  parties to a litigation  by the
expiry of  the period  of limitation  should not  lightly be
interferred with unless it was established that the
203
appeal could  not have been  lodged  in  time despite the
exercise  of   reasonable  diligence  on  the  part  of the
appellant. Learned  counsel further  contended that the fact
that the  Government Pleaders  had not discharged their duty
to the Government, even if true, would be wholly beside the
point as  that would be a matter of internal administration.
If Government  was not able to set its own house in order,
says learned  counsel, the  opposite  party,  who  had the
benefit of  the adjudication should not be exposed to a time
barred appeal. There cannot,  says counsel, be one standard
for an ordinary litigant and another for Government.
     On the merits of the cause shown, learned counsel said,
the explanation served only  to aggravate  the negligence;
that the  explanation might,  at best, amount to sufficient-
cause for  the delay  upto 20.1.1971  when the Civil  Judge
wrote to  the Government and the latter, admittedly, was put
on notice  of the  award and  decree passed in the cases and
that the  subsequent delays  of over  an year  thereafter in
preferring the appeals cannot, even on  the  most  liberal
construction of 'sufficient cause', be said to be justified.
     4. Shri Veerappa, learned counsel for the State, on the
other hand,  while seeking to support the order under appeal
submitted that the circumstances of the case disclosed that
the Government was put in a  predicament by  its own law-
officers and  that where,  as here, public interest had come
to suffer  owing to  the bad-faith  and divided loyalties on
the part  of the  officers and advisers of  Government, the
technicalities of  procedure should  yield to considerations
which would promote public interest and substantial justice.
Shri  Veerappa submitted  that in  the  present  case the
Government-Pleaders whom  Government had  necessarily to and
did trust  had let  down that  trust and  this was a case of
'salt having lost its savour'.
     Shri Veerappa  submitted that,  during the pendency of
the present  appeals, the  High Court had heard and disposed
of  the appeals  before  it  on  the  merits  substantially
reducing the  compensation;  that  appellants  have  already
preferred SLP  Nos. 2319,  2320, 2493  of 1974 against that
Judgment and that the present appeals, preferred as they are
against the mere condonation of delay, do not survive at all
and must he held to have become infructuous.
     5. We  might, perhaps,  deal with the latter submission
of Shri Veerappa first.  The fact that the main appeals are
themselves, in the meanwhile, disposed of  finally on the
merits by the High Court would
204
not by itself detract from and bar the consideration of the
correctness of the order  condoning the  delays. This is an
instance of  what are  called 'dependant-orders'  and if the
order excusing the delays  is itself  set  aside  in  these
appeals, the  further exercise, made in  the mean while, by
the High  Court finally disposing of  the appeals, would be
rendered nugatory.  The submission  of Shri  Veerappa is,
therefore, insubstantial.
     6. In  support of its prayer before the High Court for
condonation  of  the  delays, Government   narrated the
chronological  sequence  of  events   and   the   some-what
protracted correspondence between Government-Pleader and the
Government and the difficulties faced by the administration
in even ascertaining the  correct state of affairs owing to
the  negative and  evasive  attitude of  the Government-
Pleaders. These events and  correspondence are referred to
and evaluated  in paragraphs  5, 6 and 7 of the High Court's
order. After  a consideration  of the matter, the High Court
was pursuaded  to the view that in the circumstances of this
case,  it   could  not be  said  that the  Government was
negligent. High Court observed:
 "Taking into account all the circumstances of the
 case, we  hold that  there was not such negligence
 or inaction  on the  part of the  L.A.O.,  as  to
 induce as  not to  exercise our  discretion  under
 Section 5  of the  Limitation Act  to condone the
 delay in presenting the appeal."
     Adverting to  the conduct of the Government-Pleader the
High Court observed:
 "But how  could the  L.A.O.  anticipate  that the
 Government Pleader  or  the  Assistant  Government
 Pleader would fail to  do such  elementary duties
 like applying for such certified copies, obtaining
 them and  forwarding them  to the  Government with
 his opinion? To say the least, the conduct of the
 Government  Pleader and  / or,  the  Assistant
 Government   Pleader appears   to us   to  be
 extraordinary."
     (emphasis supplied)
     Indeed in the counter-affidavits filed on behalf of the
State Government  in these  appeals,  the  Land Acquisition
officer avers:
 "I beg  to submit  that due to the unusual conduct
 of the  District Government  Pleaders who  were in
 office during a
205
 particular  period  Government  had  to  face the
 problem of  delay in filing of appeals in hundreds
 of cases.  The Government was not able to know the
 real state of  affairs   till   the   concerned
 Government Pleaders  relinquished their office. In
 fact, for some time, there was utter confusion and
 it became practically impossible to find out as to
 which are  the Land  Acquisition cases  which has
 been disposed of and in which  appeals were not
 filed though appeals ought  to have been filed ..
 It is humbly submitted  that  the  case  of the
 Government for  condonation of  delay was  that on
 account of  the  fraud  played  by  the  concerned
 Government Pleaders  delay in filing the  appeals
 has occurred and more than a crore of rupees would
 be a loss to the Government on account of the said
 fraud played by the Government Pleaders. In fact,
 in innumerable  cases the  Hon'ble High  Court has
 condoned the delay  in  filing  of  the  appeals,
 taking into consideration the most unusual conduct
 of  Government   Pleaders  which  had landed the
 Government  in  difficulties. I  beg to  further
 submit that  almost all the appeals which had been
 entertained  by   the Hon'ble  High Court  after
 condoning  the   delay,  have  been allowed  on
 consideration of their merits ........ "
(emphasis supplied)
     7. The contours of the area of discretion of the Courts
in the matter of condonation of delays in filing appeals are
set out in a  number of  pronouncements of this Court. See:
Ramlal, Motilal and Chhotelal v. Rewa Coalfield Ltd., [1962]
2 SCR  762; Shakuntala Devi Jain  v.Kuntal Kumari, [1969] 1
SCR 1006;  Concord of  India Insurance Co. Ltd.  v. Nirmala
Devi and  ors., [1979] 3 SCR  694;  Lala  Mata Din  v.  A.
Narayanan, [1970]  2 SCR  90 and Collector, Land Acquisition
v. Katiji,  [1987] 2  SCC 107  etc. There is, it is true, no
general principle  saving the party from all mistakes of its
counsel.  If   there  is  negligence,  deliberate  or  gross
inaction or  lack of  bona fides on the part of the party or
its counsel  there is no reason why the opposite side should
be exposed  to a  time-barred appeal. Each case will have to
be considered  on the  particularities of  its own  special
facts. However, the expression 'sufficient cause' in Section
5 must receive a  liberal construction so  as to  advance
substantial  justice  and  generally  delays  in  preferring
appeals are  required to  be condoned  in  the interest  of
justice where  no gross negligence or deliberate inaction or
lack of bona  fides  is  imputable  to the  party  seeking
condonation of the delay.  In Katiji's case, (supra), this
Court said:
206
 "When  substantial justice    and   technical
 considerations are  A pitted against each  other,
 cause of   substantial  justice  deserves  to  be
 preferred for the other side cannot claim to have
 vested right in injustice being done because of a
 non deliberate delay."
 "It must  be grasped that judiciary is respected
 not on  account of its power to legalise injustice
 on technical grounds but because it is capable of
 removing injustice and is expected to do so."
     8. In  litigations to which Government is a party there
is yet another aspect which, perhaps, cannot be ignored. If
appeals brought by Government are lost for such defaults, no
person is  individually affected;  but what, in the ultimate
analysis, suffers  is  public  interest.  The  decisions  of
Government are collective and institutional decisions and do
not  share  the characteristics  of  decisions of  private
individuals.
     The law  of limitation  is, no  doubt, the same for  a
private citizen as for Governmental-authorities. Government,
like any  other litigant  must take  responsibility for the
acts or omissions of its officers. But a somewhat different
complexion is  imparted to the matter where Government makes
out a  case where public interest was shown to have suffered
owing to  acts of  fraud or  bad faith on the part of its
officers or  agents and where the  officers were clearly at
cross-purposes with it.
     Therefore, in  assessing what,  in a  particular  case,
constitutes 'sufficient cause' for purposes of Section 5 it
might, perhaps, be some what unrealistic to exclude from the
considerations that  go into  the  judicial  verdict,  these
factors which  are peculiar  to and  characteristic  of the
functioning of the Government. Governmental decisions are
proverbially slow encumbered, as they are, by a considerable
degree of  procedural  red-tape in  the  process  of  their
making. A  certain amount  of latitude is,  therefore, not
impermissible. It  is  rightly said  that  those  who bear
responsibility of Government must have 'a little play at the
joints'.   Due recognition   of   these   limitations  on
Governmental  functioning-of  course,  within  a  reasonable
limits-is necessary if the judicial approach is not rendered
unrealistic. It would, perhaps, be unfair and unrealistic to
put Government and private  parties on the same footing in
all respects in such matters. Implicit in the very nature of
Governmental functioning  is procedural delay incidental to
the decision  making process.  In the  opinion of  the High
Court, the  conduct of the law-officers  of the  Government
placed the
207
Government in  a predicament  and that it was one of these
cases where  the mala  fides of the officers  should not be
imputed to  Government. It  relied upon and trusted its law-
officers. Lindley,  M.R., in  the Re: National Bank of Wales
Ltd., 1899  J 2 L.R. 629  at  673  observed,  though  in  a
different context:
 "Business cannot be carried on, upon principles of
 distrust. Men in responsible positions  must  be
 trusted by  those above  them, as well as by those
 below them,  until there  is reason to  distrust
 them."
In the opinion of the High Court, it took quite sometime for
the Government to realise that the law-officers failed that
trust.
     While a  private person  can take instant decision  a
"bureaucratic or  democratic organ"  it is said by a learned
Judge "hesitates and debates, consults and considers, speaks
through paper, moves horizontally  and vertically  till  at
last it gravitates towards  a conclusion, unmindful of time
and impersonally."  Now at the end, should we interfere with
the discretion exercised by  the  High Court? Shri  Datar
criticised that the delay  on the  part of  Government even
after 20.1.1971 for over an year cannot be said to be either
bonafide or  compelled by  reasons beyond  its control. This
criticism is  not without  substance. Government  could and
ought to  have moved  with greater  diligence  and  dispatch
consistent with the urgency of the situation. The conduct of
Government was perilously close  to such inaction as might,
perhaps,  have justified  rejection of  its prayer for
condonation. But as is implicit in the reasoning of the High
Court, the  unarticulated thought,  perhaps was that in the
interest of keeping the stream of justice pure and clean the
awards under  appeal  should  not  be  permitted  to  assume
finality without  an examination  of their  merits. The High
Court noticed  that the Government pleader who was in office
till  15.12.1970   had applied  for  certified  copies  on
20.7.1970, but the application was allowed to be dismissed
for default.  In one case, however, he appears to have taken
away the  certified copy  even after  he  ceased  to  be  a
Government Pleader.  In a  similar context  where delay had
been condoned  by the  High Court,  this Court declined  to
interfere and observed:
 "Having   regard    to   the entirety   of the
 circumstances, the  High Court  thought  that the
 State should not be penalised for  the lapses of
 some of  its officers and that  in the particular
 circumstances there were sufficient   grounds
 justifying
208
 the condonation of delay in filing the appeals. It
 was a matter for the discretion of the High Court.
 We are  unable to  say  that the  discretion was
 improperly exercised .. "
 (See C.A.  No. 992/1971,  1127/1974  and  SLP (C)
 3450/1974 dated 22.1.1985)
We think  in the  circumstances of this case, we should also
decline to  interfere. Appeals are dismissed, but without an
order as to costs.
N.V.K.   Appeals dismissed.
209