He made a gunshot which caused an injury on the right hand wrist of the deceased. Without doubt, this injury could not have caused the death of the deceased, Therefore, we are of the opinion that the High Court was misplaced in maintaining the conviction of the present appellant under Section 302 of IPC. We therefore, alter the conviction of the appellant to one under Section 326 of the Indian Penal Code, 1860. We accordingly sentence him to 10 years rigorous imprisonment under Section 326 of the Indian Penal Code.

                                                                  REPORTABLE

                       IN THE  SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION
                     CRIMINAL APPEAL NO. 2180  OF  2009
HARI  SHANKERS                                     ...APPELLANT
                                   :VERSUS:
 STATE  OF  UTTAR  PRADESH                         ...RESPONDENT
                                  JUDGMENT
Pinaki Chandra Ghose,  J.
This criminal  appeal  arises  from  the  final  order  and  judgment  dated
20.07.2007 of the Allahabad High Court in Criminal Appeal No.2511  of  1985.
By the impugned judgment the High Court while allowing the appeal qua  three
accused persons  and  acquitting  them,  confirmed  the  conviction  of  the
present  appellant.  The  Additional  Sessions  Judge,  after  trial,    had
convicted the four accused persons, namely,  Hari  Shanker,  Vijay  Shanker,
Man Mohan and Ram Bharosey for the offences  punishable  under  Section  302
read with Section 34 of the Indian Penal Code, 1860 (‘IPC’  for  short)  and
sentenced them to rigorous imprisonment for life.

FACTS
The case of the prosecution as per the complaint is that  on  28.09.1983  at
about 6:30 am,  Shiv Shanker (the deceased) along  with  Uma  Shanker  (PW2)
and Ram Asrey had  gone  to  the  pond  near  Village  Bhijauli,  to  attend
nature's call. When they were returning home after easing  themselves,  four
accused persons, namely Hari Shanker,  Vijay  Shanker,  Man  Mohan  and  Ram
Bharosey confronted them and threatened to kill Shiv Shanker.  Hari  Shanker
was carrying a licensed pistol while the other three were carrying  country-
made pistols. Hari Shanker, who is the appellant in the present case,  fired
first shot from his pistol which  hit  Shiv  Shanker  on  his  right  hand's
wrist. Shiv Shanker tried to run away but Ram Bharosey caught  hold  of  him
by his waist. Vijay Shanker asked Ram Bharosey to release him  and  as  soon
as Ram Bharosey released the deceased, Vijay Shanker shot  at  the  deceased
and he fell down. Thereafter, the Ram Bharosey and Man Mohan also  fired  at
the deceased.  On hearing the sound of fire shots the complainant Amar  Nath
Mishra, father of the deceased, Girija Shanker, brother of the deceased  and
one Ram Ratan Yadav rushed to the place of occurrence. They saw the  accused
persons running away from the place of  occurrence  and  shouting  “we  have
taken the revenge”. The complainant noticed that Shiv Shanker had  died  due
to the gun shot injuries.  Thereafter,  Uma  Shankar  and  Ram  Ashrey  gave
details of the incident to the Complainant,  father  of  the  deceased,  who
thereafter went to the police station and lodged the report.

The motive as alleged in the present case is that about one  year  prior  to
the incident, there was a dacoity at the  house  of  the  Vijay  Shanker  in
which Kripa Shanker, brother of Vijay Shanker was killed and  Shiv  Shanker,
Amar Nath Mishra and three other persons were arrayed as accused persons  in
that incident and trial was pending against them. It  is  alleged  that  the
appellant Hari Shanker along with other accused  persons,  committed  murder
of Shiv Shanker to take revenge of  the  earlier  incident  of  dacoity  and
murder.

EVIDENCE
During the trial, the prosecution  produced  Amar  Nath  Mishra  (PW1),  Uma
Shanker (PW2), Dr. D.N. Giri (PW3 - who  proved  the  post  mortem  report),
Head Constable Vidya Sagar Mishra (PW4), S.I.  Surya  Kunwar  Singh  (PW5  -
first  investigating  officer)  and  S.I.  Rangnath  Shukla  (PW6  -  second
investigating officer). However, the defence did not produce any witness.

PW1, who is the father of the deceased, agreed that he did not  witness  the
incident but saw the accused persons running away with  the  weapons   while
the deceased lay on the ground with wounds and injuries. It has come out  on
record that he had reached the police station  for  lodging  FIR  at  around
8:30 am on the day of the incident, but the FIR was registered at 11:45  am.
To this, PW1 has explained that he had gone to the  police  station  with  a
written FIR but the police made him wait for 3 hours before registering  the
FIR. Also, there is  a  GD  Entry  No.  17  in  the  General  Diary  of  the
concerned Police Station at 8:55  am  according  to  which  the  complainant
along with the Village Pradhan and other villagers had come  to  the  police
station and informed that at around 6:00-6:30 am, his son Shiv  Shanker  had
been murdered by Hari Shanker and Ram Bharosey. This GD Entry  No.  17  does
not name the other two accused persons. PW2, who was  an  eye  witness,  has
deposed that he and Ram Asrey were walking behind the  deceased  going  back
home from the pond after easing themselves in the morning.  It  is  at  that
time the four accused persons came, of whom present appellant  Hari  Shanker
was armed with a licensed pistol while the other three carried  country-made
pistols. He further deposed that appellant fired shot  from  his  pistol  at
the deceased which hit at his right hand wrist and  deceased  tried  to  run
away. Ram Bharosey caught hold of him to stop him  from  running.  On  Vijay
Shanker's insistence, Ram Bharosey  released  the  accused  at  which  Vijay
Shanker shot the deceased at the abdomen from very close range. PW2  further
deposed that he did not see whether the shots fired  by  other  two  accused
hit the deceased or not. He further explained in his deposition that he  was
scared on seeing the accused carrying weapons and, therefore, did  not  come
for help of the deceased. The statement of PW2 was recorded  by  the  police
after 23 days of the incident. However,  this  delay  is  explained  by  the
prosecution by giving reason that soon after the incident, PW2 had gone  out
of station and was not available to give the statement.

PW3 being the doctor who  conducted  the  autopsy,  proved  the  post-mortem
report wherein two gunshot injuries were found on the body of the  deceased;
 one on the right hand wrist and other on  the  thoracic  abdominal  cavity.
PW4 is a constable who has stated that the complainant Amar Nath Mishra  had
come to the police station at 8:35 am soon after the incident and  had  told
that Hari Shanker and Ram  Bharosey  killed  his  son.  But  allegedly,  the
complainant refused to lodge a complaint at that  time  because  his  nephew
was taking an advice from an advocate and only thereafter, he would lodge  a
complaint with the police. This statement of the complainant was  sought  to
be proved by the GD Entry No.17 dated 28-09-1983 of the police station.

JUDGMENT OF SESSIONS JUDGE
The learned Sessions Judge after appreciating the evidence  found  that  the
motive was not properly explained by the prosecution since the trial  of  an
earlier incident of dacoity and  murder  of  Kripa  Shanker,  in  which  the
deceased and the present complainant were accused, was pending.  So  it  was
not probable that pending the trial, the accused  would  take  the  revenge.
However, the learned Session Judge  held  that  lack  of  motive  is  of  no
consequence in this case as there is direct evidence  of  PW2.  The  learned
Sessions Judge found that merely because the relations between  the  accused
and PW2 were inimical, the testimony of PW2 cannot  be  discarded.  Further,
the learned Sessions Judge accepted the explanation for delay  in  recording
the statement of PW2 by the Police that PW2 was out  of  station  and  thus,
not available to give the statement. He also found that the GD  entry  No.17
of 28-09-1983 was not  proved  by  the  author  himself  and  thus  was  not
considered as ‘good evidence’. Thus, the  learned  Sessions  Judge  accepted
the complainant's version that he had reached the police station  at  around
8.30 am but was kept waiting by the police there for three hours before  the
FIR was registered.  On these findings, the  learned  Sessions  Judge  found
all the four accused guilty of the  offence  under  Section  302  read  with
Section 34 of IPC.



 IMPUGNED JUDGMENT (HIGH COURT)

The High Court analysed the evidence and relied on the GD entry  No.  17  of
28-09-1983 wherein the complainant had named  only  appellant  Hari  Shanker
and Ram Bharosey. This statement further supported by  the  fact  that  only
two gunshot wounds were found on the  body  of  the  deceased,   shows  that
there were two persons only. However, the High Court noted that  the  second
gunshot wound as per PW2  was  struck  by  Vijay  Shanker  and  not  by  Ram
Bharosey. Relying on these circumstances, the  High  Court  acquitted  Vijay
Shanker, Man Mohan and Ram Bharosey, giving them the benefit of  doubt.  But
at the same time it found that the evidence against  the  present  appellant
Hari Shanker was clinching as the gunshot fired by him hit the wrist of  the
deceased, as has been categorically stated by PW2 and also  corroborated  by
medical evidence.  Thus,  the  High  Court  maintained  the  conviction  and
sentence of the present appellant under Section 302 read with Section 34  of
IPC.

This appeal  has  been  preferred  by  Hari  Shanker  against  the  impugned
judgment of the High Court upholding  his  conviction.  The  State  has  not
filed  any  appeal  against  the  acquittal  of  the  other  three  accused.
Therefore, we will limit ourselves to the conviction of the appellant only.

SUBMISSIONS
We have heard the learned  counsel  appearing  for  both  the  parties.  The
appellant has raised following grounds in the appeal:
The High Court found contradiction in the FIR and the  GD  Entry  No.17  and
disbelieved material evidence of the prosecution, yet it  upheld  conviction
of the appellant.
The statement of PW2 cannot be relied on as his testimony  was  recorded  23
days  after  the  incident.  The  prosecution  has  failed  to  give  proper
explanation for this delay as no proof of PW2 being out of station  or  date
of his leaving the village and  date  of  returning  have  been  brought  on
record. Including PW2 as a witness,  clearly seems to be an afterthought  as
he would have supported the case of prosecution due to  enmity  against  the
appellant.
No independent witness was brought forward by the prosecution.  Even  though
Ram Asrey is allegedly another eye witness, he is  not  examined.  Similarly
Girija Shanker and  Ram  Ratan  Yadav,  who  came  running  along  with  the
complainant Amar  Nath,  were  not  examined  although  they  were  material
witnesses in the present case. Moreover,  the  incident  allegedly  occurred
near Harijan Basti from where other independent witnesses  could  have  been
produced.
There has been no recovery of the weapons which have been  alleged  to  have
been used by the accused.
That when all other co-accused have been acquitted, the  conviction  of  the
appellant under Section 302 read with Section 34 of  IPC,  is  unsustainable
as there seems  to  be  nobody  to  share  the  common  intention  with  the
appellant. Further, even as per the case of  the  prosecution,  the  alleged
gunshot fired by the  appellant  hit  only  the  right  hand  wrist  of  the
deceased and he could not have died due to that injury.

11.   The appellant also relied on the following judicial precedents:

(a) Krishna Govind Patil v. State of Maharashtra, 1964 (1)  SCR  678  -   In
this  case out of four accused persons  convicted  under  Section  302  read
with Section 34, three were acquitted by the High Court giving them  benefit
of doubt while the conviction of one acccused  was  maintained.  This  Court
found it to be a mutually destructive finding and held  that  the  appellant
could not have been convicted with the aid of  Section  34  without  anybody
else to share intention with.

(b) Baul and Anr.  v. State of Uttar Pradesh, 1968 (2) SCR  450  -  In  this
case  three accused persons were  convicted  under  Section  302  read  with
Section 34 by the Trial Court. On  appeal,  the  High  Court  acquitted  one
person, altered the conviction of other to Section 325 and Section  109  and
for third accused, his conviction was altered to  Section  302  simplicitor.
This Court found that where the common intention has not been  proved,  each
injury must be proved and attributed to  the  particular  accused.  On  this
reasoning the Court found that the  injury  of  appellant  accused  who  was
convicted by High Court for murder simplicitor could  not  have  caused  the
death of the deceased but only a grievous hurt. Thus, the Court altered  the
conviction from Section 302 to Section 325.

(c) Maina Singh v. State of Rajasthan, 1976 (2) SCC 827 - In  this  case  as
well this Court found that when all other  co-accused  had  been  acquitted,
the conviction of appellant could not be maintained under  Section  34.  His
role has to be ascertained individually in such a case and his  guilt  would
be accordingly determined.

(d) Subran alias Subramanian and Ors. v. State of Kerala, 1993 (3) SCC 32  -
In this case question raised was whether the accused when not charged for  a
substantive offence, can he be convicted under the same? It was not a   case
where the appellant was convicted under Section 34 alone. Also the case  was
one of unlawful assembly in this case. Thus, the controversy  in  this  case
is not same as the one at hand.



(d) Noor alias Nooruddin v. State of Karnataka, 2007 (12) SCC 84 -  In  this
case as well, the Supreme Court found that  where  co  accused  persons  are
acquitted, conviction under Section 34 is not sustainable.  However,  if  by
evidence the individual role  of  the  appellant  is  proved,  he  could  be
convicted for a substantive offence.

12.   The  learned  counsel  for  the  State  has  submitted  following  two
judgments for our consideration:

(a) Harshadsingh Pehelvansingh Thakore v. State of  Gujarat,  1976  (4)  SCC
640 - This Court held that in a case where a brutal  and  fatal  assault  is
made by multiple persons on the deceased  with  many  injuries,  it  is  not
permissible to dissect the serious injuries with the non  serious  ones.  In
this case as well, the co-accused were acquitted by Sessions  Court  or  the
High Court. This Court rejected the  argument  that  Section  34  cannot  be
invoked to convict a single person. While doing so this Court noted:

“Counsel also argued that since three  out  of  four  accused  have  secured
acquittal the invocation of Section 34 is impermissible. The  flaw  in  this
submission is obvious. The Courts have given the benefit  of  the  doubt  of
identity but have not  held  that  there  was  only  one  assailant  in  the
criminal attack. The proposition is plain that even if some out  of  several
accused are acquitted but the  participating  presence  of  a  plurality  of
assailants  is  proved,  the  conjoint  culpability   for   the   crime   is
inescapable.”



However, the difference between the cited case and the present case is  that
the role of the appellant accused is determined in the  present  case  while
it was a question of fact unanswered in Harshadsingh Thakore's case.

(b) Brathi alias Sukhdev Singh v. State of Punjab, (1991) 1  SCC  519  -  In
this case, the Court found that the principle of  vicarious  liability  does
not depend on the necessity to convict requisite number of accesed  persons;
a wrong and erroneous acquittal of co-accused, even though  irreversible  if
no appeal is preferred, will not operate as a bar in recording  constructive
liability of  the  co-accused  when  the  concerted  action  stands  proved.
However, the Court was prompt to distinguish other judicial precedent  where
conviction of a lone person under Section 34 is  held  unsustainable  as  in
those cases, there was no finding of an erroneous  acquittal  of  co-accused
persons.

REASONING AND CONCLUSION
13.   In the present case, there is concurrent  findings  of  conviction  of
the appellant by the Sessions Court and the High Court on the basis  of  the
statement of  eye  witness  (PW2)  and  its  corroboration  by  the  medical
evidence. In view of the submissions made by the learned counsels  for  both
the parties, we find that since the acquittal of all co-accused  has  become
final,  the  conviction  of  the  appellant   under   Section   34   becomes
unsustainable. This is  the  established  law  as  has  been  elucidated  in
various judicial precedents discussed above. The  two  cases  cited  by  the
counsel for the State have been distinguished  above  already.  However,  in
view of the authorities cited, we have to determine the individual  role  of
the present appellant and accordingly find  out  if  he  is  guilty  of  any
offence. In doing so, we find there is sufficient  ocular  evidence  to  the
fact that the present appellant had fired the first  shot  which  landed  on
the wrist of the deceased. This fact is further corroborated by the  medical
evidence as per which a gunshot injury is found at  the  right  hand  wrist.
The submission of the learned counsel for the appellant  that  the  evidence
of PW2 is not acceptable as Section 161 Cr.P.C. statement was recorded  very
late and is not worthy enough. PW2 has given a reason that  he  was  out  of
station for days after the incident. There has neither  been  any  effective
cross examination of  PW2  by  the  defence  on  this  point.  Further,  the
contradiction between FIR and the GD entry was not in relation to  the  role
of the appellant and thus, he may not get  any  benefit  out  of  it.  Also,
although the weapon attributed to the appellant by which he  made  the  shot
has not been recovered; this  should  not  be  fatal  to  the  case  of  the
prosecution. The only contention of the appellant left to  be  addressed  is
that there was no independent witness brought forth by the  prosecution.  We
find this alone cannot be a ground for acquittal in  view  of  the  evidence
available.

14.   Thus, the role attributed to the appellant becomes proved. He  made  a
gunshot which caused an injury on the right  hand  wrist  of  the  deceased.
Without doubt, this injury could not have caused the death of the  deceased,
Therefore, we are of the opinion that  the  High  Court   was  misplaced  in
maintaining the conviction of the present appellant  under  Section  302  of
IPC.  We therefore, alter the conviction  of  the  appellant  to  one  under
Section 326 of the Indian Penal Code, 1860. We accordingly sentence  him  to
10 years rigorous imprisonment under Section 326 of the Indian  Penal  Code.
The impugned judgments passed by the High Court  as  also  by  the  Sessions
Court are accordingly modified qua the appellant herein and this  appeal  is
allowed to the above extent.


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





….....…..…………………..J
(R.K. Agrawal)
New Delhi;
April 28, 2015.

Section 138 & 139 of the Negotiable Instruments Act - the cheque was actually from the cheque book that was issued prior to 2000 as the cheque leaf itself mentioned the date in printed ink as “__/__/199__” - in absence of any other evidence, it cannot be conclusive of the fact that the cheque was issued in 1999. The date of the cheque was as such 20/05/2006 but not decade earlier -as the cheque was dishonoured because the payment was stopped and not for any other reason -This implies that the accused had knowledge of the cheque being presented to the bank, or else how would the accused have instructed her banker to stop the payment. -2015 S.C. msklawreports Section 138 of the Negotiable Instruments Act - the cheque was actually from the cheque book that was issued prior to 2000 as the cheque leaf itself mentioned the date in printed ink as “__/__/199__”. - business transaction in 2007 to release the film “Pokari” in his theatre - High court dismissed the complaint - Apex court held that since the cheque as well as the signature has been accepted by the accused respondent, the presumption under Section 139 would operate. Thus, the burden was on the accused to disprove the cheque or the existence of any legally recoverable debt or liability. To this effect, the accused has come up with a story that the cheque was given to the complainant long back in 1999 as a security to a loan; the loan was repaid but the complainant did not return the security cheque - However, it may be noted that the cheque was dishonoured because the payment was stopped and not for any other reason. This implies that the accused had knowledge of the cheque being presented to the bank, or else how would the accused have instructed her banker to stop the payment. Thus, the story brought out by the accused is unworthy of credit, apart from being unsupported by any evidence.- we are of the view that by itself, in absence of any other evidence, cannot be conclusive of the fact that the cheque was issued in 1999. The date of the cheque was as such 20/05/2006.-2015 S.C. msklawreports

The  two  parties  had  a  business  relationship  whereunder  the
defendant provided movies to the complainant for screening at  his  Theatre.

In May 2006, the defendant sought a loan  of  Rupees  Five  Lakhs  from  the
complainant for supporting the making of a Tamil movie  “Pokari”.
The  said
loan was advanced by  the  complainant  on  20-05-2006.

The  defendant  had
promised to repay the loan on  release  of  the  said  movie.

On repeated requests  made  by  the
complainant, the defendant on 16-01-2007, gave  a  cheque  for  Rs.5  lakhs,
bearing No.822408,  drawn  on  State  Bank  of  Mysore,  Vyalikaval  Branch,
Bangalore.
This cheque was presented by the  complainant  on  the  same  day
through his banker Vijaya  Bank,  Yeshwantpur  Branch,  Bangalore.
But  the
cheque was returned on 18-01-2007  by  the  Bank  with  the  remarks:  “Stop
Payment”.
Thereafter,  the  complainant  issued  a  legal  notice  to   the
defendant on 27-01-2007, at  the  office  address  as  well  as  residential
address of the  defendant.
The  notice  sent  at  the  residential  address
through RPAD was duly received, while the one sent at the office address  of
the  defendant  was  returned  with  the  report:  “Absent   -   Information
delivered”.
 Even after the notice was served,  the  defendant  neither  made
the payment nor responded to the same.

The defendant's case is that the alleged cheque was  given
to the complainant in the year 1999 as security against loan of  Rs.5  lakhs
taken then.
After the defendant paid  the  loan,  the  complainant  did  not
return the said cheque saying  that  he  had  misplaced  it.
 The  defendant
alleges that the complainant, due to  ill  will  in  release  of  the  movie
“Pokari”, used this old cheque to take revenge against the defendant firm.

The High Court found that the  cheque
was actually from the cheque book that was  issued  prior  to  2000  as  the
cheque leaf itself mentioned the date in printed ink as  “__/__/199__”.
The
High Court observed that it is hard to believe that a  business  transacting
party would give a cheque which is of the decade 1990  in  relation  to  the
transaction in 2007.
The High Court accepted the argument of  the  defendant
that the Complainant used the old cheque due to ill will because  of  denial
of the defendant firm to release the film “Pokari” in his theatre.

Apex curt held that 

Therefore, in the present case since the cheque as  well  as  the  signature
has been accepted by the accused respondent, the presumption  under  Section
139 would operate. Thus, the burden was  on  the  accused  to  disprove  the
cheque or the existence of any legally recoverable  debt  or  liability.  To
this effect, the accused has come up with a story that the cheque was  given
to the complainant long back in 1999 as a security to a loan; the  loan  was
repaid but the complainant did not return the security cheque. According  to
the accused, it was that very cheque used by the  complainant  to  implicate
the accused. However, it may  be  noted  that  the  cheque  was  dishonoured
because the payment was stopped and not for any other reason.  This  implies
that the accused had knowledge of the cheque being presented  to  the  bank,
or else how would the  accused  have  instructed  her  banker  to  stop  the
payment. Thus, the story brought out by the accused is unworthy  of  credit,
apart from being unsupported by any evidence.

Further, the High Court relied heavily on the printed date  on  the  cheque.
However, we are of the  view  that  by  itself,  in  absence  of  any  other
evidence, cannot be conclusive of the fact that the  cheque  was  issued  in
1999. The date of the cheque was as such  20/05/2006.  The  accused  in  her
evidence brought out nothing to prove the debt  of  1999  nor  disprove  the
loan taken in 2006.

where the mandate of Order 39, Rule 3A of the Code is flouted, the aggrieved party shall be entitled to the right of appeal notwithstanding the pendency of the application for grant or vacation of a temporary injunction, against the order remaining in force. - due to the inaction of the Court in following the mandate of law must have a remedy. - 2015 S.C. ( 2000) MSKLAWREPORTS

"Under the normal circumstances the aggrieved party can prefer an appeal only against an order passed under Rules 1, 2, 2A, 4 or 10 of Order 39 of the Code in terms of Order 43, Rule 1 of the Code. 
He cannot approach the appellate or revisional Court during the pendency of the application for grant or vacation of temporary injunction. 
In such circumstances the party who does not get justice due to the inaction of the Court in following the mandate of law must have a remedy. 
So we are of the view that in a case where the mandate of Order 39, Rule 3A of the Code is flouted, the aggrieved party shall be entitled to the right of appeal notwithstanding the pendency of the application for grant or vacation of a temporary injunction, against the order remaining in force. 
In such appeal, if preferred, the appellate Court shall be obliged to entertain the appeal and further to take note of the omission of the subordinate Court in complying with the provisions of Rule 3A. 
In appropriate cases the appellate Court, apart from granting or vacating or modifying the order of such injunction, may suggest suitable action against the erring judicial officer, including recommendation to take steps for making adverse entry in his ACRs.
 Failure to decide the application or vacate the ex-parte temporary injunction shall, for the purposes of the appeal, be deemed to be the final order passed on the application for temporary injunction, on the date of expiry of thirty days mentioned in the Rule."- 2015 S.C. ( 2000) MSKLAWREPORTS

Sec.128 of Indian Contract Act - Guarantee co existence with that of Principal unless specifically exempted in the letter of Guarantee - mother aged 85 years, having 1/6 share with limited rights to enjoy the property through will , stood as Guarantor for Mortgage loan executed by her sons for business purpose infavour of Bank - failed to pay debt - Bank filed a petition to DRT - DRT referred the case before Lok Adalat for settlement - joint memo filed but mother not signed - time given to deposit the settled amount towards one time settlement - but the sons principal debtors failed to pay the Lok Adalat awarded amount - while pending sale notices , she filed for setting aside the Lok Adalat Award as it is not binding on her - High court set aside the Award as she is not signed on the Joint Memo and thereby set aside sale etc. conducted pending enquiry - Apex court held that the guarantor cannot escape from her liability as a guarantor for the debt taken by the principal debtor. In the loan agreement, which is the contract before us,there is no clause which shows that the liability of the guarantor is not co-extensive with the principal debtor. Therefore Section 128 of the Indian Contract Act will apply here without any exception.- mere fact of ignorance of joint memo not beliveable as sons and mother are living together - 2015 S.C.MSKLAWREPORTS

The Respondent No.1  C.L.  Vimla
who is a  senior  citizen  aged  about  85  years,  is  the  guarantor. 
The
appellant Central Bank of India is the Bank to whom  the  property  involved
in the present case, was mortgaged.
The property  involved  in  the  present
case is a residential house which was  purchased  by  the  husband  of  C.L.
Vimla, namely, C.L.Narsimhaiah Shetty, under a sale deed  dated  10.06.1997.
She is in possession of the property along with other  family  members.  Her
husband, during his life time, executed a Will dated 31.05.1995  bequeathing
his undivided share in favor of his sons  equally  and  while  settling  the
property he granted life interest in favour of the  guarantor.  
However,  he
has not authorized her to sell or mortgage the property.  
The  property  was
mortgaged in favour of Central Bank of India  (hereinafter  referred  to  as
“the Bank”) for raising a loan of Rs.17,50,000/- for  family  business.

The Debt Recovery Tribunal referred  the  case
for settlement before Lok Adalat.
The High Court  Legal  Services  Committee
considered the reference and passed an award whereunder  the  borrower  have
agreed to pay Rs.33,50,000/- as final settlement of the claim of  the  Bank.

This settlement was not within the knowledge of the guarantor C.L. Vimla  as
she had not signed the joint memo. 
One of her sons  N.  Surya  Bhagavan  has signed it. Her advocate has also signed the  Joint  Memo. 

 It  was  only  on
5.4.2006 when she learnt that the property has been ordered to  be  sold  by
auction. She also  learnt  about  the  signing  of  Joint  Memo  by  N.Surya
Bhagavan and the Bank. 

The High Court of Karnataka, in the impugned judgment, has  dealt  with  the
issues individually. The Court had framed issues on the  inherent  power  of
the Lok Adalat, the action of the Debt Recovery Tribunal (DRT)  in  deciding
the interim applications filed by the guarantor and the  possession  by  the
auction purchaser and payment of solatium to the Central Bank of  India.  On
the issue of the inherent power of the Lok  Adalat,  the  High  Court  after
relying on a number of decisions held that as the guarantor was not a  party
to the Joint Memo, the decree would not be binding  on  her.  Regarding  the
validity of the sale, the High Court held that the sale was not done as  per
the mandate of the sale proclamation which said that  the  sale  was  to  be
conducted part by part  and  stopped  as  soon  as  the  decree  amount  was
realized. Thus, the High Court held that the auction was violative of  Order
21 Rule 64. It also rejected the plea for solatium of  20%  of  the  Central
Bank of India.

Apex court held that
the liability of the guarantor under Section  128  of  the  Indian
Contract  Act,  1872.  The  legislature  has  succinctly  stated  that   the
liability of the guarantor  is  co-extensive  with  that  of  the  principal
debtor unless it is otherwise provided  by  the  contract.  This  Court  has
decided on this question, time and again, in line with  the  intent  of  the
legislature.
 In Ram Kishun  this Court has held that “in view of the provisions of Section  128
of the Contract Act, the liability of the guarantor/surety  is  co-extensive
with that of  the  debtor.”   The  only  exception  to  the  nature  of  the
liability of the guarantor is provided in the Section itself, which is  only
if it stated explicitly to be otherwise in the Contract.



In the case of Ram Kishun (supra), this Court has also  stated  that  it  is
the prerogative of the Creditor alone whether  he  would  move  against  the
principal debtor first or the surety,  to  realize  the  loan  amount.  This
Court observed:



“Therefore, the creditor has a right to obtain a decree against  the  surety
and the principal debtor. The surety has no right to restrain  execution  of
the decree against him until the creditor has exhausted his  remedy  against
the principal debtor  for  the  reason  that  it  is  the  business  of  the
surety/guarantor to see whether the principal debtor has paid  or  not.  The
surety does not have a right to dictate terms to the creditor as to  how  he
should make the recovery and  pursue  his  remedies  against  the  principal
debtor at his instance”.







Thus, we are of the view that in  the  present  case  the  guarantor  cannot
escape from her  liability  as  a  guarantor  for  the  debt  taken  by  the
principal debtor. In the loan agreement, which is the  contract  before  us,
there is no clause which shows that the liability of the  guarantor  is  not
co-extensive with the principal debtor. Therefore Section 128 of the  Indian
Contract Act will apply here without any exception.



After a thorough reading of the Form of  Guarantee  for  Advances  &  Credit
Generally, our attention has been drawn to Clause 2 where  Respondent  No.1,
C.L. Vimala and one of her sons  N.  Ramesh  Babu,  have  stated  under  the
relevant part of the clause as under:

“2)……in relation to the subject matter of this guarantee  or  any  judgement
or award obtained by you against the principal debtor shall  be  binding  on
us….”



This Court has held in United Bank of India  that the Clauses  in  the  letter
of guarantee are binding on the guarantors as follows:

“In view of the above, the question regarding  confirmation  of  the  decree
against the guarantors now needs to be settled. ……………… we see no reason  why
the guarantors should not be made liable under  the  letters  of  guarantee,
the terms whereof clearly stipulate that on the  failure  of  the  principal
debtor to abide by the contract, they will be liable to pay the  amount  due
from the principal debtor by the appellants. Clause  15  of  the  letter  of
guarantee, in terms states that any action settled  or  stated  between  the
bank and the principal debtor or admitted by the principal debtor  shall  be
accepted  by  the  guarantors  as  conclusive  evidence.  In  view  of  this
stipulation in the letter of guarantee, once  the  decree  on  admission  is
passed against the principal debtor, the guarantors would become  liable  to
satisfy the decree jointly and severally.”

Thus, we see no reason why the Joint Memo, which states  compromise  arrived
at between the Central Bank of India and the principal  debtors,  would  not
bind C.L. Vimla when under Clause (2) she has admitted that any judgment  or
award obtained by the Central Bank of India  against  the  principal  debtor
would bind the parties.



The mere fact of ignorance cannot be a valid ground.  The  respondent,  C.L.
Vimala and her son,  N.Surya  Bhagavan  who  signed  the  joint  memo,  were
residing in the same house. We see no reason why the  Respondent  would  not
know of the joint memo,  when  she  could  have  by  reasonable  means  made
herself aware of the proceedings.

Accordingly, we set aside the order passed by the High Court and  hold  that
since the auction purchaser  has  already  paid  the  full  amount  of  sale
consideration and is in possession of the  property  in  question  for  more
than about 8 years, for equity and good conscience,  we  do  not  intend  to
interfere with his possession and we, therefore, set aside the order  passed
by the High Court, and allow these appeals. - 2015 S.C. MSKLAWREPORTS

  

Sec.197 Cr.P.C. - Sanction whether can be considered at the inception stage or at any stage ? - Apex court held that when the allegations are in excess of official duties - Sanction is a conditional precedent for taking cognizance - in other cases it can be considered at any stage - In the case before us, the allegation is that the appellant exceeded in exercising his power during investigation of a criminal case and assaulted the respondent in order to extract some information with regard to the death of one Sannamma, and in that connection, the respondent was detained in the police station for some time. Therefore, the alleged conduct has an essential connection with the discharge of the official duty. Under Section 197 of CrPC, in case, the Government servant accused of an offence, which is alleged to have been committed by him while acting or purporting to act in discharge of his official duty, the previous sanction is necessary. - Apex court set aside the orders of High court and orders of Trail court taking cognizance of the case - 2015 S.C. MSKLAWREPORTS

Sec.197 Cr.P.C. - Sanction whether can be considered at the inception stage or at any stage ? - Apex court held that when the allegations are in excess of official duties - Sanction is a conditional precedent for taking cognizance - in other cases it can be considered at any stage -  In the case before us, the allegation is  that  the  appellant  exceeded  in exercising his power during investigation of a criminal case  and  assaulted the respondent in order to extract  some  information  with  regard  to  the death of one Sannamma, and in that connection, the respondent  was  detained in the police station for some time. Therefore, the alleged conduct  has  an essential connection with the discharge of the official duty. Under  Section 197 of CrPC, in case, the Government servant accused of  an  offence,  which is alleged to have been committed by him while acting or purporting  to  act in discharge of his official duty, the previous sanction is necessary. - Apex court set aside the orders of High court and orders of Trail court taking cognizance of the case - 2015 S.C. MSKLAWREPORTS

 the complainant was picked  up
from his garden land at  about  10.00  a.m.  on  6/6/2006  in  the  morning.
Further averment reveals that this petitioner came  to  the  police  station
later in the evening and detained him till  10.00  p.m.  and  also  directed
that he should not be let-out till  he  reveals  or  confesses  that  he  is
involved in the murder of one Sannamma. 

These allegations in  the  complaint
are further corroborated in the sworn statement of the complainant which  is
further fortified from the sworn statement of  his  two  witnesses,  namely,
PWs. 2 and 3. 

The Court at this stage  is  required  to  consider  only  the
sworn  statement  of  the  complainant  and  his  witnesses  to  come  to  a
conclusion whether a prima facie case is made out for registering  the  case
and issuing summons

The question, whether sanction is necessary or not, may arise on  any  stage
of the proceedings, and in a given case,  it  may  arise  at  the  stage  of
inception 
as held by this Court  in  Om  Prakash  
 To quote:

“41. The upshot of this discussion is that whether sanction is necessary  or
not has to be decided from stage to stage. This question may  arise  at  any
stage of the proceeding. In a given case, it may  arise  at  the  inception.
There may be unassailable and unimpeachable circumstances  on  record  which
may establish at the outset that the police officer or  public  servant  was
acting in performance of his official duty and  is  entitled  to  protection
given under Section 197 of the Code. It is not possible for us to hold  that
in such a case, the court cannot look into any  documents  produced  by  the
accused or the public servant concerned at the inception. The nature of  the
complaint may have to be kept in mind. It must be remembered  that  previous
sanction is a  precondition  for  taking  cognizance  of  the  offence  and,
therefore, there is no requirement that  the  accused  must  wait  till  the
charges are framed to raise this plea. ...”

In the case before us, the allegation is  that  the  appellant  exceeded  in
exercising his power during investigation of a criminal case  and  assaulted
the respondent in order to extract  some  information  with  regard  to  the
death of one Sannamma, and in that connection, the respondent  was  detained
in the police station for some time. Therefore, the alleged conduct  has  an
essential connection with the discharge of the official duty. Under  Section
197 of CrPC, in case, the Government servant accused of  an  offence,  which
is alleged to have been committed by him while acting or purporting  to  act
in discharge of his official duty, the previous sanction is necessary.

Going by the factual matrix, it is evident that the  whole
allegation is on police excess in connection with  the  investigation  of  a
criminal case. The said offensive conduct is reasonably connected  with  the
performance of the official duty of the appellant.  Therefore,  the  learned
Magistrate could not have taken cognizance of the case without the  previous
sanction of the State Government. The High Court missed this  crucial  point
in the impugned order.
The appeal is hence allowed. The impugned order by the  High  Court  is  set
aside, so also, the proceedings initiated by the Civil  Judge  (Jr.Div)  and
JMFC at Chikkanayakanahalli,  Karnataka  in               C.C.  No.  74/2009
taking cognizance and issuing process to the appellant.  It  is  made  clear
that our judgment is  only  on  the  issue  of  sanction  and  we  have  not
considered the matter on merits and that this judgment shall  not  stand  in
the way of respondent approaching the State Government  for  sanction  under
Section 197 of CrPC. In case such sanction  is  obtained  and  the  same  is
produced before the learned Magistrate, the Magistrate may  proceed  further
in the case in accordance with the law. - 2015 S.C. MSKLAWREPORTS