Specific Performance of an agreement of Sale - Lease Hold Rights with out permission of DDA can not be sold - but sold under an agreement of sale - General Power of Attorney was also executed - a collusive specific performance of decree was obtained to avoid stamp duty and Registration charges - Despite of direction in the Decree to deposit stamp duty and registration charges not complied - It is a collusive Decree - confers no title on the person who obtained the same - Scheme for conversion of lease hold rights into free hold rights - by the date of commencement of scheme , he is not power of attorney holder - as per latest judgement of Apex court , no transfers can be effected by GPA sales and the same will apply not only to deeds of conveyance in regard to freehold property but also to transfer of leasehold property. A lease can be validly transferred only under a registered assignment of lease. It is time that an end is put to the pernicious practice of SA/GPA/WILL transactions known as GPA sales."- High court order is set aside - The respondent is at liberty to pursue the matter with DDA in accordance with law. Respondent is also at liberty to seek for return of money deposited by him/his father-Lekhraj Kukreja and when such application is made for return of money, the appellant/DDA is directed to return the same with 10% interest. - 2015 S.C. MSK LAW REPORTS

DDA executed perpetual sub-lease deed dated 16.08.1967 in respect  of
the suit property in favour of one    Sh. Jan Talwar (Defendant No.1 in  the
original suit).  Jan Talwar by an agreement to sell dated 10.6.1986,  agreed
to sell the suit property to Mrs. Raymen Kukreja for  a  sale  consideration
of Rs.20,50,000/-.
Jan Talwar, in respect of the same suit  property,  also
executed a General Power of Attorney dated 10.06.1986 in favour of Lekh  Raj
Kukreja-husband of vendee i.e. Mrs. Raymen Kukreja.  
The  cause  of  action
arose in the year 1989, when Jan Talwar refused to execute  the  sale  deed,
even after receiving the complete  sale  consideration.  
This  led  to  the
filing of civil suit being CS (OS) No.2777/1989 for  a  decree  of  specific
performance of the aforesaid agreement to sell.  

Compromise Decree

"There will be a decree for specific  performance  of  the  agreement  dated
10th June, 1986 in favour of Plaintiff No.2 and against  Defendant  No.1  in
respect of property No.N-73, Panchsheel Park,  New  Delhi.   Defendant  No.1
shall arrange to have sale deed executed within a period  of  30  days  from
today.  In case he fails  to  do  so  the  Registrar  of  this  Court  shall
nominate or appoint some official of this Court to  execute  the  sale  deed
for and on behalf of Defendant No.1 and  in  favour  of  Plaintiff  No.2  on
payment of requisite stamp duty  and  registration  charges.   The  official
nominated by the Registrar will be paid a fee of Rs.10,000/-."
Based on the compromise  decree  in  the  original  suit,
Gaurav Kukreja applied to DDA for  the  conversion  of  suit  property  from
leasehold to freehold.
 However, the  DDA  refused  the  conversion  on  the
ground that as per the scheme,   Gaurav  Kukreja  did  not  possess  a  good
title.
Learned Single Judge of High Court of Delhi,  after  considering
material on record allowed the writ petition  by  holding  that  the  decree
passed in the civil suit stands on a higher footing than any  General  Power
of Attorney as per Clause 13(a) of the Conversion  Policy.
 In the suit for specific performance filed by  respondent-Gaurav
Kukreja and his father-Lekh Raj Kukreja, DDA was not made  a  party  to  the
suit despite the fact that it was within their knowledge that  the  property
is a leasehold property under the control of DDA and cannot be  disposed  of
without obtaining a prior permission from the  DDA.   In  terms  of  Section
15(a)  of  the  Specific  Performance  Act  1963,  the  suit  for   specific
performance can be filed by "any party" to the  contract.   In  the  instant
case, suit for specific performance was filed  by  the  respondent  and  his
father who admittedly were not the parties to the agreement to  sell.    Jan
Talwar (vendor),  during the pendency of  suit,  remained  exparte  and  the
suit was decreed in terms of  a  compromise  arrived  between  the  parties,
all   of  whom were family  members.

  In  our  considered  view,  suit  for
specific  performance  is   a   collusive   suit,   where   the   respondent
     and his father used the process of the court to get rid  of  the  stamp
duty, registration charges and unearned increase payable to DDA.

  Instead of complying with the above order of the High Court  and
getting the  sale  deed  executed,  after  making  payment  of  registration
charges and stamp  duty,  the  respondent  applied  for  conversion  of  the
property through Lekh Raj Kukreja (father of the  respondent  and  power  of
attorney holder) and the  same  was  rejected.

A scheme of conversion  from leasehold  system of  land   tenure
into freehold was brought  into force and noticed by  the  Government.   The
relevant clause of the Scheme of Conversion i.e. Clause 13 reads as  under:-

"13.        The  conversion  shall  also  be  allowed  in  the  cases  where
lessee/sub-lessee/allottee has parted with the possession  of  the  property
provided that:
a)  Application for  conversion  is  made  by  a  person  holding  power  of
attorney from lessee/sub-lessee/allottee  to  alienate  (sell/transfer)  the
property.
b)  Proof is given of the possession  of  the  property  in  favour  of  the
person in whose name conversion is being sought.
c)   Where there are successive  power  of  attorneys,  conversion  will  be
allowed after verifying the factum of possession provided that  the  linkage
of original lessee/sub-lessee/allottee with the last power  of  attorney  is
established and attested copies of power of attorneys are submitted.

In such cases, a surcharge of 331/3% on the conversion fee would be  payable
over and above the normal conversion charges (no unearned increase  will  be
recoverable)."

 We therefore reiterate  that  immovable  property  can  be  legally  and
lawfully transferred/conveyed only  by  a  registered  deed  of  conveyance.
Transactions of the nature of "GPA sales" or "SA/GPA/WILL transfers" do  not
convey title and do not amount to transfer, nor can they  be  recognised  or
valid mode of transfer of immovable property.  The  courts  will  not  treat
such transactions as completed or concluded transfers or as  conveyances  as
they neither convey title nor create any interest in an immovable  property.
They cannot be recognised as deeds of title, except to  the  limited  extent
of Section 53-A of the TP Act. Such transactions cannot be  relied  upon  or
made the basis for mutations  in  municipal  or  revenue  records.  What  is
stated above will apply not  only  to  deeds  of  conveyance  in  regard  to
freehold property but also to transfer of leasehold property.  A  lease  can
be validly transferred only under a registered assignment of  lease.  It  is
time  that  an  end  is  put  to  the  pernicious  practice  of  SA/GPA/WILL
transactions known as GPA sales."

On the date of filing of the writ petition, the  respondent  was  neither  a
holder of a power of attorney nor had  any  subsisting  right  in  the  suit
property and while so, the High Court was not  right  in  holding  that  the
respondent is entitled to apply for conversion of the property.  Dehors  the
scheme  of  conversion,  the  respondent  is  not  entitled  to  apply   for
conversion of the property. 
In our considered  view,  the  respondent  does
not fall within the  ambit  of  Clause  13  of  the  Conversion  Scheme  and
therefore the impugned order of the High Court cannot be  sustained  and  is
liable to be set aside and the appeal deserves to be allowed.

 In the result, the impugned order is set aside  and  the  appeal
is allowed.  
The respondent is at liberty to pursue the matter with  DDA  in accordance with law.  
Respondent is also at liberty to seek  for  return  of money deposited by him/his father-Lekhraj Kukreja and when such  application is made for return of money, the appellant/DDA is  directed  to  return  the same with 10% interest.   No order as to costs. - 2015 S.C. msk law reports.

CONSTITUTIONAL VALIDITY - Section 66A of the Information Technology Act, 2000 is struck down in its entirety being violative of Article 19(1)(a) and not saved under Article 19(2). - Section 69A and the Information Technology (Procedure & Safeguards for Blocking for Access of Information by Public) Rules 2009 are constitutionally valid. - Section 79 is valid subject to Section 79(3)(b) being read down to mean that an intermediary upon receiving actual knowledge from a court order or on being notified by the appropriate government or its agency that unlawful acts relatable to Article 19(2) are going to be committed then fails to expeditiously remove or disable access to such material. Similarly, the Information Technology "Intermediary Guidelines" Rules, 2011 are valid subject to Rule 3 sub-rule (4) being read down in the same manner as indicated in the judgment. Section 118(d) of the Kerala Police Act is struck down being violative of Article 19(1)(a) and not saved by Article 19(2). All the writ petitions are disposed in the above terms.-2015 S.C. MSKLAWREPORTS

 The  immediate
cause for concern in these petitions  is  Section  66A  of  the  Information
Technology Act of 2000.  This Section was  not  in  the  Act  as  originally
enacted, but came into force by virtue of an  Amendment  Act  of  2009  with
effect from 27.10.2009.  Since all the arguments raised by  several  counsel
for the petitioners deal with the unconstitutionality of this Section it  is
set out hereinbelow:

"66-A. Punishment  for  sending  offensive  messages  through  communication
service, etc.-Any person who sends, by means of a  computer  resource  or  a
communication device,-


(a) any information that is grossly offensive or has menacing character; or


(b) any information which he knows to be  false,  but  for  the  purpose  of
causing  annoyance,  inconvenience,  danger,  obstruction,  insult,  injury,
criminal intimidation, enmity, hatred or ill will,  persistently  by  making
use of such computer resource or a communication device; or


(c) any electronic mail or  electronic  mail  message  for  the  purpose  of
causing  annoyance  or  inconvenience  or  to  deceive  or  to  mislead  the
addressee or recipient about the origin of such messages,


shall be punishable with imprisonment for a term which may extend  to  three
years and with fine.

Explanation.- For the purposes of this section, terms "electronic mail"  and
"electronic  mail  message"  means  a  message  or  information  created  or
transmitted or received on a computer, computer  system,  computer  resource
or communication device including attachments in text, image,  audio,  video
and  any  other  electronic  record,  which  may  be  transmitted  with  the
message."[1]

  A related challenge is also made to  Section  69A  introduced  by  the
same amendment which reads as follows:-


"69-A. Power to issue directions for  blocking  for  public  access  of  any
information through any computer resource.-(1) Where the Central  Government
or any of its  officers  specially  authorised  by  it  in  this  behalf  is
satisfied that it is necessary or expedient so to do,  in  the  interest  of
sovereignty and integrity of  India,  defence  of  India,  security  of  the
State, friendly relations  with  foreign  States  or  public  order  or  for
preventing incitement to the commission of any cognizable  offence  relating
to above, it may subject to the provisions of sub-section (2),  for  reasons
to be recorded in writing, by order, direct any agency of the Government  or
intermediary to block for access by the public or cause to  be  blocked  for
access by the  public  any  information  generated,  transmitted,  received,
stored or hosted in any computer resource.


(2) The procedure and safeguards subject to which such blocking  for  access
by the public may be carried out, shall be such as may be prescribed.


(3) The intermediary who fails to comply with  the  direction  issued  under
sub-section (1) shall be punished with an imprisonment for a term which  may
extend to seven years and shall also be liable to fine."

3.    The Statement of Objects  and  Reasons  appended  to  the  Bill  which
introduced the Amendment Act stated in paragraph 3 that:

"3. A rapid increase in the use of computer and internet has given  rise  to
new  forms  of  crimes  like  publishing  sexually  explicit  materials   in
electronic form, video voyeurism and breach of confidentiality  and  leakage
of data by intermediary, e-commerce frauds like personation  commonly  known
as Phishing, identity theft and  offensive  messages  through  communication
services.   So,  penal  provisions  are  required  to  be  included  in  the
Information Technology Act, the Indian Penal code, the Indian  Evidence  Act
and the code of Criminal Procedure to prevent such crimes."

The petitioners also contend that their rights under Articles 14 and 21  are
breached inasmuch there is no intelligible  differentia  between  those  who
use the internet and those who by words spoken or written use other  mediums
of communication. To punish somebody because he uses a particular medium  of
communication is itself a discriminatory  object  and  would  fall  foul  of
Article 14 in any case.

  In conclusion, we may summarise what has been held by us above:

Section 66A of the Information Technology Act, 2000 is struck  down  in  its
entirety being violative of Article 19(1)(a) and  not  saved  under  Article
19(2).

Section 69A and the  Information  Technology  (Procedure  &  Safeguards  for
Blocking  for  Access   of   Information   by   Public)   Rules   2009   are
constitutionally valid.

Section 79 is valid subject to Section 79(3)(b)  being  read  down  to  mean
that an intermediary upon receiving actual knowledge from a court  order  or
on being notified by the appropriate government or its agency that  unlawful
acts relatable to Article 19(2) are going to  be  committed  then  fails  to
expeditiously remove or disable access to  such  material.   Similarly,  the
Information Technology  "Intermediary  Guidelines"  Rules,  2011  are  valid
subject to Rule 3 sub-rule (4)  being  read  down  in  the  same  manner  as
indicated in the judgment.

Section 118(d) of the Kerala Police Act is struck down  being  violative  of
Article 19(1)(a) and not saved by Article 19(2).

All the writ petitions are disposed in the above terms.-2015 S.C. MSKLAWREPORTS

Section 302/397/34 IPC -When other four accused were acquitted and in the absence of appeal - his conviction for dacoity with murder punishable under section 391 and 396, IPC, in the facts and circumstances of the case, cannot be sustained in law as the four accused were acquitted and as there is no identification this accused - there is no independent charge under sec.302 of I.P.C. -2015 S.C. MSKLAWREPORTS

 "That you Satnam  Singh,  Sukhwinder  Singh,  Malkiat  Singh,  Manmeet
Singh, Balwinder Singh along with Gurcharan Singh (Proclaimed offender  vide
Order dt.30.11.2004) on 28.5.2004 in the area of Morinda  agreed  to  do  an
illegal act i.e. to commit dacoity or to commit murder and in  pursuance  of
that agreement you all the above said accused committed the dacoity  of  Rs.
7,78,156/- and committed the murder of Mohinder Singh and  thereby  you  all
committed an offence punishable under Section 120-B of the  IPC  and  within
my cognizance.

      Secondly, on the same date and time you all the accused namely  Satnam
Singh, Sukhwinder Singh, Malkiat Singh, Manmeet Singh, Balwinder  Singh  and
Gurbachan Singh were present near  Suburban  Office  PSEB  Morinda  and  you
accused Malkiat Singh in furtherance of  common  object  of  you  co-accused
committed the murder by intentionally causing the death  of  Mohinder  Singh
and thereby you accused Malkiat Singh committed an offence punishable  under
section 302 of the IPC whereas  your  co-accused  Satnam  Singh,  Sukhwinder
Singh, Manmeet  Singh,  Balwinder  Singh  and  Gurbachan  Singh  (P.O)  have
committed an offence punishable under section 302 of IPC read  with  section
149 of the IPC, and within my cognizance.

      Thirdly, on the same date, time and place you all the  accused  namely
Satnam Singh, Sukhwinder Singh,  Malkiat  Singh,  Manmeet  Singh,  Balwinder
Singh and Gurbachan Singh (P.O) committed dacoity  by  using  deadly  weapon
i.e. revolver  32  bore  and  snatched  a  sum  of  Rs.7,78,156/-  from  the
possession of Mohinder Singh and thereby you  all  the  above  said  accused
have committed an offence punishable  under  section  397  of  the  IPC  and
within my cognizance."

  Both the courts below have concluded that the prosecution  had  failed
to prove the charge of conspiracy and  had  in  fact  unreservedly  recorded
that the other four co-accused persons  could  not  be  connected  with  the
offences charged. 
 The  acquittal  of
these  four  co-accused  persons  for   lack   of   evidence   about   their
identification and participation in the commission of  the  alleged  offence
has thus become final.
The evidence of PW1, PW3 and PW4 if read together  also
does not unimpeachably prove that the appellant was the assailant  and  that
he had fired from the pistol in his possession  at  Mohinder  Singh.   Their
evidence  in  fact  is  contradictory  in  material  terms.   Not  only  the
informant, at the time of the incident, did not know the  appellant  by  his
name, admittedly it was for the first time that he claimed to  identify  him
in Court at the trial.
A combined reading of section 391 and 396,  IPC  would  bring  to  the
fore, the essential pre-requisite of joint participation  of  five  or  more
persons in the commission of the offence of dacoity and  if  in  the  course
thereof any one of them commits murder, all members of the  assembly,  would
be guilty of dacoity with murder and would  be  liable  to  be  punished  as
enjoined thereby.

 In absence of such an  assembly,
no such offence is made out rendering the conviction therefor of any  person
in isolation for murder, even if proved, impermissible in law.
To  convict
such a person of the offence only of  murder,  if  proved  otherwise,  there
ought to be specific charge to that effect.
the  prosecution  has  completely
failed in the instant case to either prove  the  participation  of  five  or
more persons in the commission of the offence or establish  their  identity.
In that view of the matter having regard to the above principle  of  law  as
authoritatively laid down by this Court and in absence of a singular  charge
under section 302, IPC against the appellant sans the assembly,  we  are  of
the  unhesitant  opinion  that  his  conviction  for  dacoity  with   murder
punishable under section 396, IPC, in the facts  and  circumstances  of  the
case, cannot be sustained in law.

The attention  of  the  courts  below  we
understand had not been drawn to this vital and determinative facet  of  the
case.
 Be that as  it  may,  in  our  considered  view,  the  conviction  and
sentence of the appellant being repugnant to letter and  spirit  of  section
391 and 396 of the IPC, the same is liable to be interfered with.  We  order
accordingly.
 The appeal is thus allowed and the impugned judgments and  orders  are
hereby set aside.  -2015 S.C. MSKLAWREPORTS

whether the material available against the accused persons at this stage makes out a prima facie case that the alleged offence could have been committed by them. The offences charged against the accused are the offences under Section 13(2) and Section 13(1)(d) of the Prevention of Corruption Act and Section 120B of the Indian Penal Code.

                                                                  REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION

                       CRIMINAL APPEAL NO. 498 OF 2015
                (Arising out of SLP (Crl.)  No.5279 of 2007)

State of Madhya Pradesh                            ...Appellant
                                  :Versus:
Rakesh Mishra                                     ...Respondent
                                    WITH

                       CRIMINAL APPEAL NO. 499 OF 2015
                 (Arising out of SLP (Crl.)  No.5828 of 2007

State of Madhya Pradesh                            ...Appellant
                                  :Versus:
Gyanendra Singh Jadon                        ...Respondent







                               J U D G M E N T

Pinaki Chandra Ghose, J.

1.    Leave granted in both the matters.
2.    These appeals arise out of the judgment  and  order  dated  18th  May,
2007 passed by the High Court of Madhya Pradesh  (Indore  Bench),  disposing
of Criminal Revision Petition  Nos.636/2007,  610/2007  and  566/2007  which
were filed under Section 397 read with Section 401 of the Code  of  Criminal
Procedure, 1973. By the impugned judgment the High Court of  Madhya  Pradesh
has allowed the three revision petitions, setting aside the  orders  of  the
First Additional Judge/ Special Judge, Indore, for framing  charges  against
three accused persons, namely, Rakesh  Mishra,  Gyanendra  Singh  Jadon  and
Sajid Dhanani. It may be noted that the  State  has  assailed  the  impugned
judgment only against Rakesh Mishra and G.S. Jadon.

3.    The brief facts of the case are that Sajid  Dhanani  is  the  Managing
Director of the Sayaji Hotel situated at Scheme No.54, Near Meghdut  Gardan,
Vijay Nagar, Indore. Gyanendra Singh Jadon was working at the relevant  time
as Building Officer posted  at  Municipal  Corporation,  Indore  and  Rakesh
Mishra was working as Sub-Engineer, Municipal  Corporation,  Indore.  It  is
alleged that these three accused hatched a  criminal  conspiracy   in  which
G.S. Jadon and Rakesh Mishra illegally granted a Building Certificate and  a
Completion Certificate to Sayaji Hotel  in  Indore.  Allegedly,  as  illegal
gratification, Sayaji Hotel provided free lifetime  honorary  membership  to
G.S. Jadon and his family members in the Sayaji Club. The original  Building
Permission was given to the applicant Shajid  Dhanani  for  construction  of
multi-storied hotel and adjoining club by the  then  Building  Officer  Shri
J.M. Avasiya vide letter dated 23-12-1993. This  permission  was  to  remain
valid for one year and the letter granting  permission  mentioned  that,  if
required, renewal application must be made  before  22-11-1994.  G.S.  Jadon
became the Building Officer in 1994 and a revised plan was submitted to  him
in the capacity of Building Officer,  which was approved vide letter  12-01-
1995 along with the renewal of  building  permission.  Also  the  completion
certificate of the Club adjoining the Hotel was granted  on  19-01-1995.  On
18-01-1998 an FIR was lodged at  the  Police  Station  -  S.P.E.,  Lokayukta
Office, Bhopal, against G.S. Jadon alleging irregularities  by  the  accused
persons in giving clearances for development of Sayaji Hotel  and  the  said
Club. After investigation the police filed charge-sheet  against  the  three
accused persons. The First Additional Sessions Judge/Special Judge,  Indore,
after perusing the charge-sheet and accompanying documents  ordered  framing
of charges against the three accused for the offences under  Sections  13(2)
and 13(1) (d) of Prevention of Corruption Act read with Section 120B of  the
Indian Penal Code, 1960. The three  accused  moved  to  the  High  Court  by
filing revision petitions against the order  of  the  Addl.  Sessions  Judge
framing charges. The High Court  allowed  the  Revision  Petitions  and  set
aside the order of framing charges  passed  by  the  Addl.  Sessions  Judge,
Indore.

4.    At this stage it would be appropriate to refer to order of  the  Addl.
Sessions Judge which framed the charges. The  charges  framed  against  G.S.
Jadon are that as the Building Officer (a public servant),  he  cleared  and
issued the revised building plan  of  the  Sayaji  Hotel  without  sanction,
approval and clearance from High Rise Committee in violation of Rule  12  of
Bhumi Vikas Niyam, 1984 and  also  without  electricity,  water  supply  and
sewage clearance to the said  project.  Further,  the  charge  against  G.S.
Jadon is for issuing completion certificate without  necessary  electricity,
water, sewage and fire fighting clearances thereby causing illegal gains  to
Sajid Dhanani, proprietor of Sayaji Hotel. It is also alleged  that  he  did
not inform about the completion certificate to the Property  Tax  Department
of Indore Municipal Corporation leading to  evasion  of  tax  by  the  Hotel
amounting to  Rs.5,49,000/-.  The  order  further  charged  G.S.  Jadon  for
accepting free lifetime membership in the  club  of  the  Sayaji  Hotel  for
himself and five family members. This constituted the illegal  gratification
to him.

5.    As against Rakesh Mishra, the charge was of criminal  conspiracy,  for
the reason that  he was  the  Sub-Engineer  at  the  relevant  time  in  the
Building Permission Branch and he made certain notings  in  the  Note  Sheet
favouring  Sajid Dhanani. The charges against Sajid  Dhanani  were  that  in
the capacity of applicant for revision of the  building  plan  and  issuance
completion certificate, he was charged for criminal conspiracy for  offences
under the Prevention of Corruption Act by  providing  illegal  gratification
to G.S. Jadon and evading property tax.

6.    The High Court allowed the revision petitions  on  the  findings  that
the original building permission was granted by J.M.  Awasiya   and  it  was
granted after approval from High Rise Building Committee vide  letter  dated
09-12-1993. The accused had merely granted a revision of the  building  plan
which did not require  any  fresh  approval  from  the  High  Rise  Building
Committee. Also, the High Court found that the approval of  Fire  Department
had been taken vide letter dated 18.10.1994.  It was only later,  that  vide
letter dated 19.10.1997 the fire authorities withdrew their  NOC.  The  High
Court found that the Completion Certificate was also granted while the  Fire
NOC was in force and it was in conformity with Rule  31  of  Madhya  Pradesh
Bhumi Vikas Niyam, 1984. The High Court concluded that the Building  Officer
was under no obligation to inform the property tax department of the  Indore
Municipal Corporation about the completion certificate. In fact,  in  regard
to property tax evasion, the alleged  amount  of  Rs.5,49,000  was  paid  by
Hotel Sayaji when it was demanded by the department.

7.    The major argument advanced by the State of Madhya Pradesh  before  us
has been that the High Court traversed beyond the  permissible  limit  while
deciding the legality of order framing charges,  being  a  pre-trial  stage.
Various authorities have been cited before us to prove that point.  However,
it would suffice to say that the law on this point  is  crystal  clear  that
only charge-sheet along with the accompanying material is to  be  considered
at the stage of framing of charges, so as to satisfy whether a  prima  facie
case is made out. It has to be the  subjective  satisfaction  of  the  Court
framing charges. In our opinion,  the  High  Court  has  only  examined  the
material before it against the prevailing  law  to  reach  its  conclusions.
Thus, the impugned judgment may not be assailable on this ground.

8.    However, the question that arises is whether  the  material  available
against the accused persons at this stage makes out a prima facie case  that
the alleged offence could have been committed by them. The offences  charged
against the accused  are  the  offences  under  Section  13(2)  and  Section
13(1)(d) of the Prevention of Corruption Act and Section 120B of the  Indian
Penal Code.

9.    Learned counsel appearing for the  accused  persons  has  argued  that
G.S. Jadon was  in  the  office  of  Building  Officer  from  31.10.1994  to
16.10.1996.  He cannot be held liable for any act/omission done prior to  or
after this period. It is contended that building permission was  granted  to
Sayaji Hotel prior to his appointment as the Building Officer. It  has  been
further contended that the revision jurisdiction  of  the  High  Court  also
includes the inherent jurisdiction under Section 482 of Cr.P.C..

10.   It is worth noting here that the  revised  building  plan,  which  was
sanctioned in guise of the revision of sanction of the building  permission,
was a complete departure from the original plan. We  do  not  have  detailed
building plans of the original and revised  building  permission.   However,
from the limited information available with us, it can be  fished  out  that
built up area in the original plan was 1810.04 Sq. Mtrs.  on  Ground  Floor,
while  in  the  revised  plan  it  was  increased  to  3476.25  Sq.   Mtrs..
Similarly, for the Club the proposed built up  area  for  Ground  Floor  was
decreased from 4759.11 Sq. Mtrs.  to 1810.62 Sq. Mtrs..

11.   The above are only two illustrations of the changes that  were  sought
to be approved in the revised building plan. It  goes  without  saying  that
when such dramatic and major changes are made to  the  plan,  the  approvals
for fire safety devices, electricity, water supply and  sewage,  granted  as
per original plan would become irrelevant. Also, the completion  certificate
which was granted on 19.01.1995 was merely 7  days  after  the  revision  of
building  permission.   Although,  it  may  be  noted  that  the  completion
certificate was only in relation to the Club and not the Hotel,  yet  it  is
difficult to fathom as to how even a Club could be  completely  built,  with
all compliances within 7 days of building permission,  especially  when  the
revised building plan consisted major changes from  initial  plan.  Further,
the  accused  not  only  granted  the  revision  without  approval  of   any
committee, but also accepted the honorary membership of the Sayaji Club.

12.   Having said so, it would be relevant to  point  out  that  evasion  of
property tax being attributed to the Building Officer; we do not find  merit
in this argument as we do not find any law where  the  Building  Officer  is
required  to  inform  the  property  tax   department   of   the   Municipal
Corporation.

13.   Although we do not wish to comment on the merits of the case  as  this
is the pre-trial stage, yet we are of the view that there exists  sufficient
material to make out a prima facie  case  against  the  accused.  Therefore,
these criminal appeals are allowed, the order passed by the  High  Court  is
set aside and the order of the  Addl.  Sessions  Judge  framing  charges  is
restored.


14.    We  may,  however,  express  our  disappointment  of  such   extended
litigation at the pre-trial stage itself.  The  delay  in  justice  delivery
system not only renders justice  ineffective  but  also  ill-founded  as  it
leads to erosion of evidence. In the light of this observation,  we  request
the Trial Court to conduct the trial in the most expeditious manner.


....................................J
(Pinaki Chandra  Ghose)




....................................J
(R.K. Agrawal)
New Delhi;
March 23, 2015.
ITEM NO.1B               COURT NO.12               SECTION IIA

               S U P R E M E  C O U R T  O F  I N D I A
                       RECORD OF PROCEEDINGS

Petition(s) for Special Leave to Appeal (Crl.)  No(s).  5279/2007

(Arising out of impugned final judgment and order dated 18/05/2007  in  CRLR
No. 636/2007 passed by the High Court Of M.P. At Indore)

STATE OF M.P.                                      Petitioner(s)

                                VERSUS

RAKESH MISHRA                                      Respondent(s)


WITH
SLP(Crl) No. 5828/2007

Date : 23/03/2015      These petitions were called on for
            pronouncement of judgment today.

For Petitioner(s)      Mr. Arvind Varma, Sr. Adv.
                       Ms. Deepika Shori, Adv.
                       Mr. C. D. Singh, AOR

For Respondent(s)      Mr. Sumit Kumar Sharma, Adv.
                       Mr. Niraj Sharma, AOR

                       Mr. Brajesh Kumar, AOR

      Hon'ble Mr. Justice Pinaki Chandra  Ghose  pronounced  the  reportable
judgment of the Bench comprising His Lordship and Hon'ble Mr.  Justice  R.K.
Agrawal.
      Leave granted in both the matters.
      The appeals are allowed, the order passed by the  High  Court  is  set
aside and the order of the Addl. Sessions Judge framing charges is  restored
in terms of the signed reportable judgment.

      (R.NATARAJAN)                                 (SNEH LATA SHARMA)
       Court Master                                    Court Master
            (Signed reportable judgment is placed on the file)

Injunction suit - Or.VII, rule 11 C.P.C - Rejection of plaint - Letter of Credits & it's acceptance - Malayn Bank had forwarded the documents presented by the Synergic Companies to the Allahabad Bank. Out of four Letters of Credit, Allahabad Bank had accepted the presentation of documents in two Letters of Credit with the consultation of the STC. Only one of the presentation was rejected while there is no information with respect to the response of the Allahabad Bank on presentation of documents of the fourth Letter of Credit. - Even on the Letter of Credit for which the presentation was rejected, the response was made after 19 days while UPC-600 provides that rejection or any objection against the presentation must be communicated to the negotiating bank of the beneficiary within 5 days. - Single judge rightly rejected the plaint as It is not enough to allege fraud but there must be clear evidence both as to the fact of fraud as well as to the bank's knowledge of such fraud. - 2015 S.C. MSK LAW REPORTS

The
learned Single Judge rejected the plaint  of  the  appellants  herein  under
Order VII Rule 11 of the Code of Civil Procedure, 1908.
Division  Bench  of
the Delhi High Court by which the High Court dismissed the appeals filed  by
the appellants.

 M/s.  Millenium  Wires  (P)

Ltd. (hereinafter referred  to  as  "Millenium  Wires")  and  State Trading

Corporation of India Limited (hereinafter  referred  to  as  "STC")   entered

into an Associateship Agreement (hereafter referred to as "the  Agreement"),

for importing continuous  cast  copper  wire  rods  from  Synergic  Material

Services  PTE  Limited,  Singapore   and    Synergic   Industrial   Material

Services, Malaysia (hereinafter referred to as  "Synergic,   Singapore"  and

"Synergic,  Malaysia"  severally   and   collectively   as   the   "Synergic

Companies"). 

 The STC opened 4 Letters of Credit  with  the  Allahabad  Bank

being  Issuing  Bank  and  the  Malayn  Banking  BHD,  Malaysia  being   the

Confirming Bank.

With respect to all these Letters of Credit the  Malayn  Bank  had  released

the payment to the Synergic Companies after the documents were presented  by

them. It was at this stage that the Millenium Wires and STC  approached  the

Delhi  High  Court  by  filing  a  suit  seeking  permanent,  mandatory  and

perpetual injunction  against  the  Synergic  Companies  from  claiming  any

benefit under the Letters of Credit in question and against  the  Confirming

Foreign Bank being Malayn Bank to prevent any action  or  release  of  funds

under the Letters of Credit.

The Malayn Bank filed an application under Order VII Rule 11 of the Code  of

Civil Procedure, 1908.

Apex court held that

In view of that, the following observation of the Court  in  R.D.  Harbottle

(Mercantile) Ltd. v. National Westminster Bank, (1977)  3  WLR  752,  should

suffice:

"Banks must be allowed  to  honour  their  guarantees  without  interference

except in clear cases of notice of fraud to the  bank.  The  merchants  take

risk which are not to be imposed on the banks. Such interference will  deter

trust in international commerce."

We would uphold and restate the law on injunction against  honouring  Letter

of Credit by a Bank as summed up by the learned Single Judge as follows:

(1) The Court must be slow in granting an order  of  injunction  restraining

the realisation of a bank guarantee or Letter of Credit.

(2)  There are two exceptions to the above rule. The first is that  it  must

be clearly shown that a fraud of a grievous nature has  been  committed  and

to the notice of the Bank. The second is that injustice of  the  kind  which

would make it impossible for the guarantor to reimburse  himself,  or  would

result in irretrievable harm or injustice to one of the  parties  concerned,

should have resulted.

(3) It is not enough to allege fraud but there must be clear  evidence  both

as to the fact of fraud as well as to the bank's knowledge of such fraud.

It would suffice to say here that injunctions against the negotiating  banks

for making payments to the beneficiary must be given cautiously as  constant

judicial interference in the normal practices of market can have  disastrous

consequences as it affects the  trustworthiness  of  the  Indian  banks  and

markets.

Furthermore, it appears that the Malayn Bank  had  forwarded  the  documents

presented by the Synergic Companies to  the  Allahabad  Bank.  Out  of  four

Letters  of  Credit,  Allahabad  Bank  had  accepted  the  presentation   of

documents in two Letters of Credit with the consultation of  the  STC.  Only

one of the presentation was rejected while  there  is  no  information  with

respect to the response of the Allahabad Bank on presentation  of  documents

of the fourth Letter of Credit. Even on the Letter of Credit for  which  the

presentation was rejected, the response was made after 19  days  while  UPC-

600 provides that rejection or any objection against the  presentation  must

be communicated to the negotiating bank of the beneficiary within 5 days.

In the circumstances as narrated above and in light of the  settled  law  on

the point of injunction against the banks to  honour  their  guarantees,  we

are of the view that these appeals  are  to  be  dismissed  and  accordingly

appeals are dismissed. - 2015 S.C. MSK LAW REPORTS