i) Whether the appellants were present; and ii) Whether they shared a common object. The appellants undisputedly raided the house of Satyaban and they were armed with deadly weapons and they attacked Satyaban and PW4 Muralidhar Kuila and abducted Satyaban in order to murder him. The appellants right from the beginning viz., when they assembled in the house of Golak Mondal till the abduction of Satyaben, shared the common object of the assembly at all stages. We are of the view that the impugned judgment of the High Court does not suffer from any infirmity to warrant interference.

                                 REPORTABLE


                        IN THE SUPREME COURT OF INDIA

                       CRIMINAL APPELLATE JURISDICTION

                      CRIMINAL APPEAL NO.2147  OF 2009


Gyaneshwar Shyamal                         …     Appellant

                                   versus

State of West Bengal                           …  Respondent

                                    WITH

                       CRIMINAL APPEAL NO.2295 of 2009




                               J U D G M E N T



C. NAGAPPAN, J.



1.    These two appeals are preferred against the  judgment  dated  9.2.2009
passed by  the High Court of Judicature at Calcutta in CRA No.7 of 1991.

2.    The appellants in Criminal Appeal No.7 of 1991 are  accused  Nos.1  to
5, 10 and 25 in Sessions Trial Case No. XIV of March 1987  on  the  file  of
5th Additional Sessions Judge  at  Midnapore.   They  along  with  28  other
accused were tried for the alleged offences  under  Sections  148,  364/149,
302/149 and 307/149 of the Indian Penal  Code.   The  Sessions  Court  found
accused Nos.1 to 5, 10 and 25 guilty of charges under Sections 148,  324/149
and 364/149 and not guilty of  the  charge  under  Section  302/149  of  the
Indian Penal Code. Accused Nos.1 to 5, 10 and 25 were sentenced  to  undergo
rigorous imprisonment for 10 years each with fine of Rs.1,000/- each and  in
default to undergo further rigorous imprisonment for  six  months  each  for
the  conviction  under  Section  364/149  IPC;  sentenced  them  to  undergo
rigorous imprisonment for one year each for  the  conviction  under  Section
148 IPC and further sentenced them to undergo rigorous imprisonment for  one
year each for the conviction under Section 324/149.  At the  same  time  the
Sessions Court acquitted remaining 28 accused of all the charges.

3.    Aggrieved by this conviction and sentence accused Nos.1 to 5,  10  and
25 preferred Criminal Appeal in CRA No.7 of 1991 before the  High  Court  of
Judicature at Calcutta.  The High  Court  by  its  judgment  dated  9.2.2009
dismissed the appeal.  Accused Nos. 2, 3 and 4 died during the  pendency  of
the appeal.  Challenging  the  impugned  judgment  accused  No.25  Ganeshwar
Shyamal preferred Criminal Appeal No.2147 of 2009 and  accused   No.1  Manik
Mondal, No.5 Amar Mondal and No.10 Mihir  Patra  preferred  Criminal  Appeal
No.2295 of 2009 before this Court.  These two appeals are heard together.

4.    Briefly the prosecution case is as follows :   PW2  Jitobahan  is  the
husband of PW3 Smt. Khiroda.  Deceased Satyaban  is  their  elder  unmarried
son and PW8 Manoranjan   Mondal is their younger son.   All  of  them  lived
together in Karthnala village.  PW4 Muralidhar Kuila is friend  of  deceased
Satyaban.  On 9.10.1983 between  9  and  10  a.m.,  the  cattle  of  accused
Hariram Mondal caused damage to the Kundri plants grown on the back side  of
the house of PW2 Jitobahan.  Satyaban drew away the cattle and this  enraged
Manik Mondal, son of Hariram Mondal, who retaliated with the bow  and  arrow
in his hand.  Satyaban came inside the  house.  It  was  also  alleged  that
there was political rivalry between them.   Around noon  time  on  the  same
day all the accused including the  appellants  armed  with  lathis,  tangis,
bows and arrows assembled in the  house  of  Golak  Mondal,  situated  at  a
distance of 30 cubits from the house of Satyaban.  At about  1.30  p.m.  PW4
Muralidhar Kuila came to the house of Satyaban and was  talking  to  him  in
his house.   At that time all the accused with  arms  in  their  hands  came
there and surrounded Satyaban and Muralidhar.   Accused  No.1  Monik  Mondal
hit Satyaban with tangi, a sharp cutting weapon and  he  also  attacked  PW4
Muralidhar above the right eye with tangi. PW4 Muralidhar  fled  away.   The
accused persons assaulted Satyaban and  took  him  to  the  house  of  Golak
Mondal. Satyaban was thereafter never found either alive  or  dead.   PWs  2
and 3, parents  of  Satyaban  and  PW8  Manoranjan,  brother  witnessed  the
occurrence.  Fearing for life PW8  Manoranjan  fled  to  the  house  of  his
brother-in-law at Satma village and narrated the occurrence to PW1  Ardhendu
Satpati who rushed to the police station  in his motor-cycle which was at  a
distance of about 44 kilometers.  PW1 Ardhendu Satpati lodged Exh.1  written
complaint and PW10 Sub-Inspector Mriganka Sekhar  Misra  received  the  same
and registered Exh.1(a) First Information Report at 6.15 p.m.  on  the  same
day.  The police had to requisition a vehicle  and  ultimately  reached  the
place of occurrence at about 5.00 a.m. in the morning on the next day.  PW10
Sub-Inspector searched for the accused persons but they were not found.   He
searched the house of accused Golak Mondal and  seized  a  large  number  of
blood-stained articles by preparing  Exh.6 and 6-A Mahazars.   He  sent  PW4
Muralidhar to Gopiballavpur primary health  centre,  though  PW4  was  given
first aid by  Dr.  Pushpa  Ranjan  Ghose.   PW9  Dr.  Bepari  examined   PW4
Muralidhar  Kuila at  the primary  health  centre  and  found     1½”  x  ¼”
sharp cut wound over right eye and ½”  x ¼”  sharp  wound  below  the  right
eye.  The injury report  given  by  him  is  Exh.3.  PW10  Sub-Inspector  on
completing the investigation filed  chargesheet  against  35  accused.   The
Sessions  Court  on  framing  of  charges  conducted  the  trial  in   which
prosecution examined 10 witnesses and marked  documents.   No  evidence  was
adduced by the defence.  The trial court convicted only  seven  accused  and
sentenced them as stated supra.  On appeal  the  High  Court  confirmed  the
conviction and sentence.  Aggrieved by the same  the  present  appeals  have
been filed.

5.          Mr. P.K. Ghosh, learned senior counsel appearing on  behalf   of
the appellants would urge:

      a)         the prosecution case must be held to have not  been  proved
since the family members are the eye-witnesses;

      b)         Whether the occurrence  took  place  inside  the  house  or
outside is not established;

      c)         two of the appellants  belong  to  different  villages  and
their presence in the occurrence  place  is  doubtful  and  they  have  been
implicated falsely  due to political rivalry and the courts below  committed
error in passing the judgments;

      d)         in any event most of the appellants having  not  taken  any
active part, benefit of doubt should be given to them.



The learned senior counsel  in  support  of  his  submission  mainly  placed
reliance on the decision of this Court in Akbar Sheikh and  Ors.  vs.  State
of West Bengal  [(2009) 7 SCC 415].

6.    Mr. Joydeep Mazumdar, learned  counsel  appearing  on  behalf  of  the
State, on the other hand, supported the impugned  judgment  contending  that
the appellants armed with deadly weapons attacked PW4 Muralidhar Kuila   and
abducted Satyaban to murder him and  thereafter  Satyaban  was  never  found
alive or dead and each one  of  the  appellants  had  the  requisite  common
object and the conviction and sentence imposed on them are sustainable.

7.          The prosecution case is  that  the  accused  armed  with  deadly
weapons indulged in rioting and abducted Satyaban  from  his  residence  and
murdered him.  The trial court held that Satyaban was murdered in the  house
of accused  Golak Mondal was not proved since his dead body  was  not  found
despite vigorous search and it is a case of  untraceability  of  the  corpus
delicti  and hence the charge of murder was not proved.  The State  did  not
prefer appeal against the acquittal of the accused on the  said  charge  and
it became final.  At the same time the trial court held that the  appellants
indulged in rioting by causing injury to PW4 Muralidhar Kuila  and  abducted
Satyaban  by assaulting him with intent to  commit   murder  and  found  the
appellants guilty of the charges stated supra. PW2 Jitobahan  and  his  wife
PW3 Smt. Khiroda were living with their sons Satyaban and PW8 Manoranjan  in
their house in Karthnala village.  According to  PWs  2,  3  and  8  on  the
occurrence day in the morning cattle of accused  Hariram  caused  damage  to
the Kundri plants grown on the back side of their house  and  Satyaban  drew
away the cattle and enraged by this accused  No.1  Monik  Mondal  retaliated
with bow and arrow and Satyaban came inside the house. It is  their  further
testimony that by noon time on the same day all the  accused  including  the
appellants assembled in the house of Golak Mondal which  was  situated  near
their house and at that time they were armed with lathis,  tangis,  bow  and
arrows.  PWs 2, 3 and 8 have testified further  that  PW4  Muralidhar  Kuila
came at about 1.30 p.m. to their house  to meet Satyaban and  both  of  them
were talking in their house and at that time all the accused  with  arms  in
their hands came to their house and surrounded Satyaban and  PW4  Muralidhar
Kuila.  Accused No.1 Monik Mondal  hit  Satyaban  with  tangi  and  he  also
attacked PW4 Muralidhar Kuila above  right  eye  with  tangi  and   all  the
accused assaulted  Satyaban and took him  to  the  house  of  accused  Golak
Mondal  and  Satyaban  was  never  found  thereafter  alive  or  dead.   PW4
Muralidhar  Kuila  has  also  testified  that  when  he  was   indulged   in
conversation with Satyaban in their house they were surrounded  by  all  the
accused and he  was  attacked  by  accused  No.1  Monik  Mondal  with  tangi
resulting in injury in his right eye and he fled for life and  Satyaban  was
abducted by them.  PW9 Dr. Bepari examined PW4 Muralidhar  Kuila  and  found
two sharp cut wounds over and below his right  eye.   Exh.3  is  the  injury
report issued by him. PW8 Manoranjan fled to the house  of  his  brother-in-
law at Satma village and narrated the occurrence  to  PW1  Ardhendu  Satpati
who lodged the written complaint in the police station.

8.    The occurrence had taken place at about 2.00  p.m.  on  9.10.1983  and
the complaint had been lodged at about 6.15 p.m. on the same day,  on  which
the case came to be  registered.   As  mentioned  in  the  FIR,  the  police
station was situated at a distance of 54 kms.  from  the  occurrence  place.
In such circumstances there is no delay in  lodging  the  complaint  and  it
assumes significance.   Seven accused persons have  been  named  with  their
residential village in the complaint and it includes the appellants  herein.
The complainant PW1 Ardhendu Satpati has not witnessed  the  occurrence  and
on the instruction given by PW8 Manoranjan he had lodged the complaint.

9.    PW4 Muralidhar Kuila in his testimony has stated that he saw  Satyaban
and his brother Manoranjan in front of the house and he started  talking  to
Satyaban and at that time the accused persons surrounded and attacked  them.
 PWs 2, 3 and 8 have categorically stated that PW4 Muralidhar Kuila  on  the
occurrence day at about 1.30 p.m. came to their house to meet  Satyaban  and
both of them were talking inside the  house  at  which  point  of  time  the
accused barged in.  The Investigation  Officer  PW10  in  Exh.5  Sketch  Map
prepared by  him  has  shown  the  occurrence  place  inside  the  house  of
Satyaban.  We also perused  the  sketch  map  and  are  convinced  that  the
occurrence had taken place only inside the house of Satyaban.  In  the  same
way we are unable to appreciate the other contention that the  eye-witnesses
are only the family members and their testimonies are interested ones.   The
occurrence having taken place  inside  the  house  it  is  only  the  family
members who could witness  it.   PW4  Muralidhar  Kuila  is  an  independent
witness and he was also  injured  during  the  occurrence.    His  testimony
corroborates  the testimonies of other eye-witnesses.

10.   It is true that two of the appellants/A10 and A25 belong to  different
villages.  As already stated their names  are  found  mentioned  with  their
residential village in the complaint which was lodged at the earliest  point
in time. PWs 2, 4 and 8 have testified about the participation of  both  the
above accused in  the occurrence and have identified them also.  Nothing  is
put in the cross-examination of the  prosecution  witnesses  either  denying
their presence or absence of any role played by them in the  assembly.   Not
even a suggestion is made in this regard.   It is  also  relevant  to  point
out that these accused in their  replies  made  under  Section  313  Cr.P.C.
have not denied their presence in the occurrence.   On the other hand  their
presence in the occurrence place is established by the   evidence  available
on record.

11.   In the facts of the decision cited supra 29 accused  had  faced  trial
and the testimony of two eye-witnesses were found to be credible  and  those
witnesses had not named some of the accused in their testimonies and in  the
absence of any clinching evidence against those accused they were  acquitted
by this Court.

12.    The prosecution in a case of this nature was required to establish  :
i) Whether the  appellants  were  present;  and           ii)  Whether  they
shared a common object.  The appellants undisputedly  raided  the  house  of
Satyaban and  they  were  armed  with  deadly  weapons   and  they  attacked
Satyaban and PW4 Muralidhar Kuila and abducted Satyaban in order  to  murder
him.   The appellants right from the beginning viz.,  when  they   assembled
in the house of Golak Mondal till the  abduction  of  Satyaben,  shared  the
common object of the assembly at all stages.  We are of the  view  that  the
impugned  judgment of the High Court does not suffer from any  infirmity  to
warrant interference.

13.   There are no merit in the appeals and the same are dismissed.



                                                            ……….……..…………….J.

                                                      (Jagdish Singh Khehar)



                                                              …………………………….J.

                                                   (C. Nagappan)

New Delhi

March 29, 2016

Section 218 of the MLR Code reads as under: - “218. Claims to attached property how to be disposed. - (1) If any claim is set up by a third person to the property attached or proceeded against under the provisions of this Code, the Collector may on a formal inquiry held after reasonable notice, admit or reject it. (2) The person against whom an order is made under sub-section (1) may, within one year from the date of the order, institute a suit to establish the right which he claims to the property attached or proceeded against, but subject to the result of such suit, if any, the order shall be conclusive.”=In Central Bank of India v. Siriguppa Sugars & Chemicals Ltd. (supra), in similar facts, this Court has held as under: - “17. Thus, going by the principles governing the matter propounded by this Court, there cannot be any doubt that the rights of the appellant Bank over the pawned sugar had precedence over the claims of the Cane Commissioner and that of the workmen. The High Court was, therefore, in error in passing an interim order to pay parts of the proceeds to the Cane Commissioner and to the Labour Commissioner for disbursal to the cane growers and to the employees. There is no dispute that the sugar was pledged with the appellant Bank for securing a loan of the first respondent and the loan had not been repaid. The goods were forcibly taken possession of at the instance of the revenue recovery authority from the custody of the pawnee, the appellant Bank. In view of the fact that the goods were validly pawned to the appellant Bank, the rights of the appellant Bank as pawnee cannot be affected by the orders of the Cane Commissioner or the demands made by him or the demands made on behalf of the workmen. Both the Cane Commissioner and the workmen in the absence of a liquidation, stand only as unsecured creditors and their rights cannot prevail over the rights of the pawnee of the goods. We are also of the view that pending the writ appeals, the High Court ought not to have passed such an interim order of consequence especially in the light of the legal principles settled by this Court. The order of the High Court, therefore, cannot be sustained and calls for interference.” In view of law laid down, as above, by this Court in Central Bank of India v. Siriguppa Sugars & Chemicals Ltd. (supra), and further considering the facts and circumstances of the case, we are of the opinion that the High Court has erred in law in dismissing the writ petitions filed by the appellants.- Accordingly, the appeals are allowed. The impugned judgment and order dated 10.2.2012, passed in Writ Petition Nos. 8452 of 2011 and 8453 of 2011 is set aside. We direct the authorities concerned to disburse the amount in the light of the observations made above regarding entitlement of the appellants with precedence over the dues payable to workers and sugarcane farmers, under Sugarcane (Control) Order, 1966. However, we clarify that the amount already distributed shall not be recovered from the workers and the sugarcane farmers. There shall be no order as to costs.

                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                        CIVIL APPEAL NO. 1840 OF 2013

Sahyadri Co-operative Credit
Society Ltd.                                       … Appellant

                                   Versus

The State of Maharashtra and others          …Respondents

                                    WITH

                        CIVIL APPEAL NO. 1841 OF 2013





                               J U D G M E N T


Prafulla C. Pant. J.,


       These  appeals  are  directed  against  judgment  and   order   dated
10.02.2012, passed by the  High  Court  of  Judicature  at  Bombay  in  Writ
Petition Nos. 8452 of  2011  and  8453  of  2011,  whereby  the  High  Court
dismissed  the  writ  petitions  filed  by  the  writ   petitioner-societies
(present appellants), observing that the alternative remedy of  filing  suit
was available to them under Section 218 of Maharashtra  Land  Revenue  Code,
1966 (for short “the MLR Code”).

Brief facts of the  case  are  that  the  appellants  are  Multi  State  Co-
operative Societies registered under  Multi  States  Co-operative  Societies
Act, 2002 and operate in the geographical  territories  of  Maharashtra  and
Karnataka.   The  appellant-societies  are  engaged  in  the   business   of
accepting deposits from its members, and lending money to them.   Respondent
no. 6 M/s. Tasgaonkar Sugar Mills Ltd. is lessee of business  of  respondent
no. 5 Daulat Shetkari Sahakari Sakhar Karkhana Ltd.  under  the  deed  dated
15.10.2010, and, as such, respondent no. 6 has taken over  the  business  of
respondent no. 5.  They approached the appellants for financial  assistance.
 Appellant Sahyadri Co-operative Credit  Society  Ltd.  sanctioned  loan  of
Rs.7,00,00,000/- repayable within a period of six months to  respondent  no.
5, and appellant Navhind Co-operative Credit Society  Ltd.  sanctioned  loan
of Rs.12,20,00,000/- on similar terms to it.  Both  the  sums  are  credited
into the account  of  Kolhapur  District  Central  Co-operative  Bank  Ltd.,
erstwhile creditor  of  respondent  no.  5.   Said  Bank  had  consented  to
respondent No. 5 for creation of charge in favour of the appellants  in  the
form of pledge.  As such, sugar stock of 35,000 quintals  stored  in  godown
no. 6 of respondent nos. 5 and 6 was agreed  to  be  pledged  in  favour  of
appellant Sahyadri Co-operative Credit Society  Ltd.,  and  sugar  stock  of
80,985 quintals stored in godown Nos. 7-I and 7-II was agreed to be  pledged
in favour of appellant Navhind Co-operative Credit Society Ltd.  In  respect
of said transactions of pledge, separate letters dated 31.03.2011  regarding
consent of respondent no. 6 were issued in favour of  the  appellants.   The
appellants and respondent  nos.  5  and  6  entered  into  an  agreement  on
25.05.2011 and the same was duly registered.  It is pleaded that  respondent
no. 8 Daulat Sakhar Kamgar Sangh  (workers  union)  also  gave  consent  for
creation of pledge.

Admittedly, respondent nos. 5 and 6 ran into losses and failed  to  pay  the
outstanding dues of  the  cane  growers.  Consequently,  respondent  no.  2,
Commissioner of Sugar/ Special Registrar, Co-operative Societies,  State  of
Maharashtra, Pune, passed an order under  Sugarcane  (Control)  Order,  1966
directing release of Rs.36,22,66,591 with interest accrued  to  be  paid  to
the members who had supplied their sugarcane post May 15, 2010.   Respondent
no.  3  Collector,  Kolhapur,  was  nominated  as  authorized  officer   for
disbursement of said amount.  In pursuance of said order, respondent  no.  3
directed  respondent  no.  4   Tehsildar,   Chandgad,   District   Kolhapur,
Maharashtra, to recover the amount of Rs.36,22,66,591/- as arrears  of  land
revenue under clause 3(9) of  the  Sugarcane  (Control)  Order,  1966,  from
respondent no. 5.  Accordingly, respondent no. 4 visited site of  respondent
no. 5 and attached the stock of godown no. 6 and godown nos.  7-I  and  7-II
under clause 3(9) of the Sugarcane (Control) Order, and directed  respondent
no. 5 not to dispose of the stock of  sugar  lying  in  the  above  godowns.
Respondent nos. 5 and 6 objected to the attachment of  sugar  stock  pledged
to them.  The appellants also raised their  objections  to  the  attachment.
However, on  18.6.2011  a  public  notice  was  issued  in  the  newspapers,
including Daily Sakal, wherein it was informed that godown no. 6 and  godown
nos. 7-I and 7-II along  with  other  stock  would  be  put  to  auction  on
22.6.2011  at  3.30  p.m.  in  pursuance  of  the  order  dated   28.5.2011.
Aggrieved by this, appellant Navhind Co-operative Credit Society  Ltd.,  and
appellant Sahyadri Co-operative Credit  Society  Ltd.  filed  Writ  Petition
Nos. 4539 and 4533 of 2011 respectively before the High Court of  Judicature
at Bombay pleading that they have right of precedence in  the  repayment  of
loan amount.  The High Court, vide its order dated 22.6.2011 (on the day  of
public auction), directed that auction, as  notified,  should  be  conducted
after fixing the set price.   The  High  Court  further  directed  that  the
amount receivable against the stock  of  sugar  pledged  to  the  appellants
shall  be  deposited  with  the  Registrar  (Judicial)  of  the  High  Court
whereafter  the  Registrar  (Judicial)  was  to  keep  the   amount   in   a
nationalized bank in fixed deposit.  On 11.7.2011,  Sub  Divisional  Officer
filed an affidavit stating that the entire stock of sugarcane was  sold  for
a sum of Rs.52,95,36,483/-, out of which the  amount  realized  against  the
pledged  sugar  was  Rs.27,94,27,910/-.   A  sum  of  Rs.21,65,00,000/-  was
deposited in the High Court, and regarding rest, it was  stated  before  the
High Court that the same would be deposited after receiving  the  same  from
the auction-purchaser.  The High Court finally disposed  of  both  the  writ
petitions (Nos. 4533 and 4539 of 2011) holding  that  the  appellants  would
have first right over the amount of pledged sugar, and respondent no. 3  was
directed to make distribution of the amount  collected  in  accordance  with
rules  keeping  in  mind  the  rights  of   precedence   of   the   parties.
Consequently,  the  appellants  approached  respondent  no.  3,   but   said
authority rejected the claim of the appellants and held that the payment  of
Provident Fund amounting to Rs.4,66,40,511/-  on  account  of  dues  to  the
Assistant Provident Fund Commissioner would be the  first  priority,  and  a
sum of Rs.36,22,66,591/- plus interest shall be paid  to  the  cane  growers
who supplied sugarcane to respondent no. 5 (Daulat Shetkari Sahakari  Sakhar
Karkhana Ltd.).  It is  further  directed  by  respondent  no.  3  that  the
balance amount, after auction of sugar stock, be  paid  to  the  workers  of
factory of respondent no. 5.

Aggrieved by aforesaid order of the Collector, Kolhapur (respondent no.  3),
the appellants,  namely,  Sahyadri  Co-operative  Credit  Society  Ltd.  and
Navhind Co-operative Credit Society Ltd. filed Writ Petition  Nos.  8452  of
2011 and 8453 of 2011 respectively before  the  High  Court.   Notices  were
issued and the respondents objected to the maintainability of the  two  writ
petitions.  Vide interim order  dated  17.11.2011,  the  High  Court  passed
common order in both the writ petitions declining  interim  stay  prayed  by
the writ petitioners and observed that a sum of Rs.27,94,27,910/-  deposited
in the High Court shall continue to remain invested  in  fixed  deposit  and
the objection relating to the maintainability shall be heard at the time  of
arguments on admission.  In said order the High Court took note of the  fact
that the total amount realized after auction of 2,17,984 bags/  quintals  of
sugar manufactured by respondent  no.  5  (including  the  disputed  pledged
sugar in favour of the appellants), is  Rs.52,95,36,483/-.   It  is  further
observed by the High Court in the interim order dated 17.11.2011 that a  sum
of Rs.27,94,27,910/- was deposited in the High Court,  and  out  of  balance
amount of Rs.25,01,08,573/- with  the  Collector,  Kolhapur,  an  amount  of
Rs.20,00,00,000/- has been distributed amongst workers.   And  rest  of  the
sum left with the Collector, as allowed by the  High  Court  on  23.12.2011,
was disbursed towards Provident Fund of workers.  Finally, the  High  Court,
vide impugned order dated 10.2.2012, dismissed the  writ  petitions  on  the
ground that the appellant-creditors have  alternative  remedy  available  to
them to file suit under Section 218 of the MLR Code.

Section 218 of the MLR Code reads as under: -

“218. Claims to attached property how to be disposed. - (1)   If  any  claim
is set up by a third person to the property attached  or  proceeded  against
under the provisions of this Code, the Collector may  on  a  formal  inquiry
held after reasonable notice, admit or reject it.

(2)   The person against whom an order is made under  sub-section  (1)  may,
within one year from the date of the order, institute a  suit  to  establish
the right which he claims to the property  attached  or  proceeded  against,
but subject to the  result  of  such  suit,  if  any,  the  order  shall  be
conclusive.”


On behalf of the appellants it is argued that the claim  of  the  appellants
is independent of the MLR Code, and  the  Collector,  Kolhapur,  passed  the
order in exercise of power  under  the  provisions  of  Sugarcane  (Control)
Order, 1966, as such the bar contained in clause 218(2) of the MLR  Code  is
not applicable to them.  In this connection, it  is  pointed  out  that  the
High Court, while disposing of the writ petitions filed  in  earlier  round,
had directed the Collector to disburse the sum keeping in mind the right  of
precedence.

It is further argued that the appellants, being  secured  creditors,  had  a
right of precedence in repayment of dues outstanding against respondent  no.
5, and sugar pledged in their favour was not liable to be  attached  by  the
respondent authorities.  It is reiterated that there was  already  an  order
passed by the High Court on 12.8.2011 in Writ Petition  Nos.  4533  of  2011
and 4539 of 2011 holding the  right  of  precedence  of  the  appellants  in
respect of the pledged sugar.  Attention of  this  Court  is  drawn  to  the
principle of law laid down by  this  Court  in  Central  Bank  of  India  v.
Siriguppa Sugars & Chemicals Ltd. and others[1], and it  is  submitted  that
the High Court has lost sight of right of precedence of  pawnee,  recognized
in said case.

On the other hand, learned counsel for  the  contesting  respondents  argued
that the transactions of alleged pledge in  favour  of  the  appellants  are
sham, and created only to defeat the payment due  to  the  workers  and  the
cane growers.  In this connection, our attention is drawn to  Annexure  P-1,
i.e. copy of Working Capital Loan Agreement.  It  is  pointed  out  that  in
respect of loan disbursed on 31.3.2011 the agreement  was  registered  later
on 26.5.2011, and the document shows pledge of sugar was only promised.

In reply to the above argument, the appellants drew our attention  again  to
the order dated  22.6.2011,  passed  in  Writ  Petition  No.  4533  of  2011
(Annexure P-5 to Civil Appeal No. 1841 of 2013) and  order  dated  12.8.2011
passed in Writ Petition No. 4539 of 2011 (Annexure P-5 to Civil  Appeal  No.
1840 of 2013), wherein the High Court has observed that stock  of  sugar  in
question was pledged in favour of the appellants, and it is  submitted  that
the orders in that round of litigation have attained finality, as such,  the
same cannot be questioned now.

We have considered the above submissions and also perused the record of  the
case.   It  is  not  disputed  that  in  the  earlier  round  of  litigation
appellants  Navhind  Co-operative  Credit  Society  Ltd.  and  Sahyadri  Co-
operative Credit Society Ltd. filed Writ Petition  Nos.  4533  of  2011  and
4539 of 2011 respectively which were  disposed  of  by  the  High  Court  on
12.8.2011.  It is also not disputed that in said writ petitions  the  factum
relating to pledge made in favour of appellant Sahyadri Co-operative  Credit
Society Ltd of godown no. 6, and the pledge of godown nos. 7-I and  7-II  in
favour of appellant Navhind Co-operative Credit Society Ltd.  by  respondent
no. 5 was considered, and the High Court accepted that the  stock  of  sugar
in question was pledged in favour of  the  appellants.   However,  the  High
Court observed that the order dated 28.5.2011, passed  by  the  Commissioner
of Sugar & Special Registrar, Co-operative Societies, Maharashtra,  was  not
challenged, as such, no adjudication was made in respect of  entitlement  of
the appellants as against the claims of  workers’  union  or  the  sugarcane
farmers.  The High Court  disposed  of  the  writ  petitions  directing  the
Collector to consider  the  entitlement  and  priority  of  the  appellants,
sugarcane farmers  and  the  workers.   It  appears  that  the  order  dated
12.8.2011 was passed by the High Court in the earlier  round  of  litigation
not  only  after  hearing  the  respondents  of  said  case  but  also   the
intervenors,  who  are  contesting  respondents  in  the  present  round  of
litigation, as such, in our opinion, it  is  not  open  for  the  contesting
respondents now to challenge the genuineness of the pledge  made  in  favour
of the appellants, as the order in the earlier round has attained  finality.


Apart from this, we have examined the papers on  record  pertaining  to  the
transactions of pledge by which respondent Nos. 5 and 6  pledged  the  sugar
stock in question in favour of the appellants  and  we  find  no  reason  to
doubt  the  transactions.   Copy  of  letter   No.   CMA-856/2010-11   dated
21.2.2011,  on  the  record,  discloses  that  Kolhapur   District   Central
Cooperative Bank Ltd. communicated  “No  Objection”  to  respondent  no.  5,
Daulat Shetkari Sahakari Sakhar Karkhana  Ltd., by  enclosing  No  Objection
Certificate in favour of respondent no. 6 Tasgaonkar Sugar  Mills  Ltd.  for
raising working capital loan from other  financial  institutions.   Copy  of
resolution dated 6.3.2011, passed by Special General Body of Sahyadri Multi-
State  Co-operative  Credit  Society  Ltd.  (Annexure  A-6   to   additional
affidavit filed on behalf of the appellant  in  Civil  Appeal  No.  1840  of
2013) shows that a decision was taken to  raise  loan  of  Rs.12,00,00,000/-
against pledge of sugar.  Consequential resolution dated 8.3.2011  (Annexure
A-8) appears to have been  passed  by  appellant  Sahyadri  Multi-State  Co-
operative Credit Society Ltd. in the meeting  of  the  Board  of  Management
Committee.  Through letter dated 23.3.2011 (Annexure A-10) respondent no.  5
Daulat Shetkari  Sahakari  Sakhar  Karkhana  Ltd.  informed  the  appellants
giving consent for raising working capital against pledge  of  goods.   Copy
of letter No.  Accts/Fin/1732/2010-11  dated  25.3.2011  (Annexure  A-11  to
additional affidavit filed in Civil Appeal No.  1840  of  2013)  shows  that
respondent no. 5 Daulat Shetkari Sahakari  Sakhar  Karkhana  Ltd.  requested
Kolhapur District Central Co-operative Bank Ltd.  for  issuance  of  NOC  in
favour of the appellant-societies specifying  the  godown  numbers  and  the
quantity of sugar in stock.  Record further reveals that through letter  No.
CMA-868/2010-11 dated  29.3.2011  (Annexure  A-14  to  additional  affidavit
filed in Civil Appeal No.  1840  of  2013)  Kolhapur  District  Central  Co-
operative Bank Ltd. gave consent for pledge of sugar stock of godown Nos.  6
and 7 in favour of the appellants.   All  the  above  documents  remove  the
clouds of doubt as to the transactions of pledge in question  in  favour  of
the appellants.

In Central Bank of India v. Siriguppa Sugars & Chemicals  Ltd.  (supra),  in
similar facts, this Court has held as under: -

“17.  Thus, going by the principles governing the matter propounded by  this
Court, there cannot be any doubt that the rights of the appellant Bank  over
the pawned sugar had precedence over the claims  of  the  Cane  Commissioner
and that of the workmen.   The  High  Court  was,  therefore,  in  error  in
passing an  interim  order  to  pay  parts  of  the  proceeds  to  the  Cane
Commissioner and to the  Labour  Commissioner  for  disbursal  to  the  cane
growers and to the employees.  There  is  no  dispute  that  the  sugar  was
pledged with the appellant Bank for securing a loan of the first  respondent
and the loan had not been repaid.  The goods were forcibly taken  possession
of at the instance of the revenue recovery authority  from  the  custody  of
the pawnee, the appellant Bank.  In view of the fact  that  the  goods  were
validly pawned to the appellant Bank, the rights of the  appellant  Bank  as
pawnee cannot be affected by the orders of  the  Cane  Commissioner  or  the
demands made by him or the demands made on behalf of the workmen.  Both  the
Cane Commissioner and the workmen in the absence  of  a  liquidation,  stand
only as unsecured creditors and their rights cannot prevail over the  rights
of the pawnee of the goods.

18.   We are also of the view that pending the writ appeals, the High  Court
ought not to have passed such an interim order of consequence especially  in
the light of the legal principles settled by this Court.  The order  of  the
High Court, therefore, cannot be sustained and calls for interference.”


In view of law laid down, as above, by this Court in Central Bank  of  India
v. Siriguppa Sugars & Chemicals Ltd. (supra), and  further  considering  the
facts and circumstances of the case, we are of the  opinion  that  the  High
Court has erred in law  in  dismissing  the  writ  petitions  filed  by  the
appellants.

For the reasons,  as  discussed  above,  both  the  appeals  deserve  to  be
allowed.  Accordingly, the appeals are allowed.  The impugned  judgment  and
order dated 10.2.2012, passed in Writ Petition Nos. 8452 of  2011  and  8453
of 2011 is set aside.  We direct the authorities concerned to  disburse  the
amount in the light of the observations made above regarding entitlement  of
the appellants  with  precedence  over  the  dues  payable  to  workers  and
sugarcane farmers, under  Sugarcane  (Control)  Order,  1966.   However,  we
clarify that the amount already distributed shall not be recovered from  the
workers and the sugarcane farmers.  There shall be no order as to costs.

                                                             ……………………………..J.

                                                              [Ranjan Gogoi]







                                                             ……………………………..J.

                                                          [Prafulla C. Pant]

New Delhi;

March  28 , 2016.

-----------------------
[1]    (2007) 8 SCC 353

The petitioner says that he has been unfairly treated for selection to the Indian Administrative Service (for short ‘the IAS’) and that he is entitled to the benefit of the quota for physically handicapped persons under S.C. category for selection under the Indian Administrative Service (Appointment by Selection) Regulations, 1997. For this, the petitioner places reliance on the decision of this Court in Union of India v. National Federation of the Blind[1] and Section 33 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995.= The primary contention urged before us is that in view of the decision of this Court in National Federation of the Blind read with Section 33 of the PWD Act, the petitioner is entitled to the benefit of reservation for persons with disabilities in the matter of short listing for selection to the IAS. - this petition raises questions regarding the interpretation of Section 33 of the PWD Act read with the Indian Administrative Service (Appointment by Selection) Regulations, 1997 and the Indian Administrative Service (Recruitment) Rules, 1954 this petition also relates to the interpretation of the Office Memorandum dated 29th December, 2005 and the Office Memorandum dated 3rd December, 2013. Since all these issues are inter-linked with the pending Civil Appeals, we are of the view that for a comprehensive decision in the matter and to settle the controversy, it will be more appropriate if leave is granted to the petitioner and this matter is tagged along with C.A. No. 7295 of 2012 and C.A. No. 11895 of 2014. 19. Accordingly, we grant leave and tag this appeal with C.A.No.7295 of 2012 and C.A.No.11895 of 2014.

                                                                  REPORTABLE
                         IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION
Petition for Special Leave to Appeal (C) No. 19898 of 2014


D. Sudhakar                                     ..…Petitioner
                                        versus
State of A.P. & Ors.                              …Respondents

                               J U D G M E N T
Madan B. Lokur, J.
1.     The petitioner was directly recruited in the Group-I  services  as  a
Regional Transport Officer in 1990 and has been working as  Joint  Transport
Commissioner since 2008.  The petitioner  belongs  to  the  Scheduled  Caste
community and is physically handicapped (Ortho).
2.     The petitioner says that he has been unfairly treated  for  selection
to the Indian Administrative Service (for short ‘the IAS’) and  that  he  is
entitled to the benefit of the  quota  for  physically  handicapped  persons
under S.C. category for selection under the  Indian  Administrative  Service
(Appointment by Selection) Regulations,  1997.   For  this,  the  petitioner
places reliance on the decision of this Court in Union of India v.  National
Federation of the Blind[1] and Section 33 of the Persons  with  Disabilities
(Equal Opportunities, Protection of  Rights  and  Full  Participation)  Act,
1995.
3.     The background facts of the case indicate that the  State  of  Andhra
Pradesh had short listed  the  petitioner  in  2002  for  consideration  for
appointment to the IAS against Non  State  Civil  Services  Officers  quota.
The petitioner was interviewed  but  not  selected.   Even  thereafter,  the
petitioner was considered for  appointment  but  was  not  short  listed  or
selected.  The petitioner says that in spite of the reservation for  persons
with  disabilities  as  provided  under  Section  33  of  the  Persons  with
Disabilities  (Equal  Opportunities,   Protection   of   Rights   and   Full
Participation) Act, 1995 (for short ‘the PWD Act’)  which  provides  for  3%
reservation for persons with disabilities  in  every  establishment  of  the
appropriate Government, the petitioner was not selected in the IAS.
4.     At this stage, it may be mentioned that  there  are  three  modes  of
recruitment  to  the   IAS   under   the   Indian   Administrative   Service
(Recruitment) Rules, 1954.  These are (a)  by  direct  recruitment;  (b)  by
promotion of State Civil Services Officers; (c) by  selection  from  amongst
Non State Civil Service Officers.  The case of the petitioner falls  in  the
third category that is selection  from  amongst  Non  State  Civil  Services
Officers.
5.     When the petitioner was not short listed for selection  for  the  IAS
in 2010, he approached the Central Administrative Tribunal, Hyderabad  Bench
by filing O.A. No. 1297 of 2010 challenging the selection of  15  candidates
by  the  Selection  Committee  constituted  for  this   purpose   that   had
recommended the 15 candidates to the Union  Public  Service  Commission  for
consideration for appointment  in  the  IAS.   The  further  prayer  of  the
petitioner was for a direction to include his name in the  short  list  sent
by the State of Andhra Pradesh under the physically  handicapped  quota  and
under S.C. category.
6.     The State of Andhra Pradesh and the Union  of  India  both  contested
the claim of the petitioner on merits and at law.  It was submitted  by  the
State of Andhra Pradesh and the Union of India that the concerned  Selection
Committee had fully examined the records of the  candidates  and  thereafter
did not shortlist the  petitioner.   As  such  it  was  contended  that  the
decision taken by the Committee could not be faulted.  The State  of  Andhra
Pradesh  and  the  Union  of  India   also   contended   that   the   Indian
Administrative Service (Appointment by Selection) Regulations, 1997  do  not
provide for rules of reservation for including a candidate in  the  zone  of
consideration. Therefore, apart from the contention that the petitioner  was
not meritorious enough, the submission was that even at law  the  petitioner
had not made out any case for interference by the Tribunal.
7.     The Tribunal by its Order dated 28th February,  2011  partly  allowed
the original application filed by the petitioner.  The  Tribunal  held  that
the short listing  process  by  the  Selection  Committee  was  not  at  all
satisfactory and therefore the short listing of the 15  candidates  was  set
aside as the selection was not fair.
8.     With regard to the prayer of the petitioner that his name  should  be
included in the short list, the Tribunal held that on  an  earlier  occasion
it had dealt with a somewhat similar issue in O.A.  No.  998  of  2009.   In
that case the Tribunal had held that there was no provision for  reservation
in recruitment by promotion from the  State  Police  to  the  Indian  Police
Service.  It was held that the  rationale  for  coming  to  that  conclusion
holds good  for  recruitment  by  selection  of  Non  State  Civil  Services
Officers to the IAS.  Accordingly, it was held that the petitioner  had  not
made out any case for being short listed for selection.
9.     The Tribunal, in a somewhat oblique manner, upheld the contention  of
the State of Andhra Pradesh  and  the  Union  of  India  that  there  is  no
provision for reservation in the Indian Administrative Service  (Appointment
by  Selection)  Regulations,  1997  or  the  Indian  Administrative  Service
(Recruitment) Rules, 1954.
10.    Feeling aggrieved, the petitioner preferred Writ Petition  No.  18563
of 2011 in the High Court of Andhra Pradesh.   By  its  judgment  and  order
dated 20th February,  2014  the  High  Court  dismissed  the  writ  petition
(impugned).
11. The High Court did not even advert to the Indian Administrative  Service
(Recruitment) Rules, 1954 or the Indian Administrative Service  (Appointment
by Selection) Regulations, 1997 but in a rather cryptic manner rejected  the
case set up by the petitioner.  The High Court held as follows:-

“7. The facts are not in dispute.  As on the date of  committee  constituted
for  selecting  Non-Indian  Administrative  Service   Cadre   from   various
departments, the  petitioner  was  eligible  to  be  considered.   The  main
contention of the learned counsel for the petitioner is  that  the  case  of
the petitioner has to  be  considered  under  office  memo,  dated  3.12.13,
wherein the persons with disabilities have to  be  given  preference  in  3%
reservation on the total number of vacancies in the  cadre  strength.   But,
in view of the fact that the decision of the Hon’ble Supreme Court  and  the
amendment of Office Memo dated 29.12.2005, is  prospective,  that  amendment
cannot be retrospective to the petitioner to  consider  his  case  under  3%
reservation of persons with Disabilities Act.  Therefore,  we  do  not  find
any merit in this writ petition and it is liable to be dismissed.”

12.    The decision of this Court referred  to  above  is  in  the  case  of
National Federation of the Blind which  dealt  with  the  Office  Memorandum
dated 29th December, 2005 and struck down paragraph 12 thereof.
13.    Subsequent to the decision of this Court, the Union of  India  issued
another  Office  Memorandum  dated  3rd  December,  2013  and  inserted  the
following paragraph:-

“Reservation for persons with disabilities in Group A or Group B post  shall
be computed on the basis of total number of vacancies  occurring  in  direct
recruitment quota in all the Group A post and Group B post respectively,  in
the cadre.”

14.    A perusal of the impugned judgment and order indicates quite  clearly
that the decision of the  High  Court  was  based  on  completely  different
grounds than the decision of the Tribunal. In fact the reasons given by  the
Tribunal were not even remotely adverted to by the High Court.
15. Be that as it may, feeling aggrieved by the  decision  rendered  by  the
High Court the petitioner is now before us.  The  primary  contention  urged
before us is that in  view  of  the  decision  of  this  Court  in  National
Federation of the Blind read with Section 33 of the PWD Act, the  petitioner
is entitled to the benefit of reservation for persons with  disabilities  in
the matter of short listing for selection to the IAS.
16. We may  note  at  this  stage  that  the  Office  Memorandum  dated  3rd
December, 2013 and more particularly the inserted paragraph mentioned  above
came up for consideration before the Delhi High  Court  in  H.C.  Sharma  v.
N.D.M.C.[2]  The Delhi High Court took the view that the inserted  paragraph
was contrary to the conclusions and directions  in  National  Federation  of
the Blind.  Accordingly, the said paragraph was struck down.  In  coming  to
this conclusion, the High Court made a reference  to  Municipal  Corporation
of Delhi v. Manoj Gupta[3] and the dismissal on 10th December, 2013  of  the
petition for special leave to appeal against the decision of the High  Court
in Manoj Gupta.
17. Be that as it may, the decision of the High Court in  H.C.  Sharma  came
up for consideration before this Court and on 18th December, 2014 leave  was
granted to challenge the  decision.   The  Civil  Appeal  arising  therefrom
being C.A. No. 11895 of 2014 is pending and has been tagged  with  C.A.  No.
7295 of 2012 (State of Haryana v. Viklang Sangh).
18. Under these circumstances, we are of the opinion  that  apart  from  the
fact that this petition raises questions  regarding  the  interpretation  of
Section 33 of the PWD  Act  read  with  the  Indian  Administrative  Service
(Appointment by Selection) Regulations, 1997 and the  Indian  Administrative
Service  (Recruitment)  Rules,  1954  this  petition  also  relates  to  the
interpretation of the Office Memorandum dated 29th December,  2005  and  the
Office Memorandum dated 3rd December, 2013.   Since  all  these  issues  are
inter-linked with the pending Civil Appeals, we are of the view that  for  a
comprehensive decision in the matter and to settle the controversy, it  will
be more appropriate if leave is granted to the petitioner  and  this  matter
is tagged along with C.A. No. 7295 of 2012 and C.A. No. 11895 of 2014.
19.    Accordingly, we grant leave and tag this appeal with  C.A.No.7295  of
2012 and C.A.No.11895 of 2014.


                                                                .……………………..J
                                                         (Madan B. Lokur)



New Delhi;                                              ..……………………J
March 28, 2016                                       (S. A. Bobde)

-----------------------
[1]


     (2013) 10 SCC 772
[2]  211 (2014) DLT 462
[3]  171 (2010) DLT 600

This Court in Vidya Devi v. Prem Prakash[7] held that: “28. ‘Ouster’ does not mean actual driving out of the co-sharer from the property. It will, however, not be complete unless it is coupled with all other ingredients required to constitute adverse possession. Broadly speaking, three elements are necessary for establishing the plea of ouster in the case of co-owner. They are (i) declaration of hostile animus, (ii) long and uninterrupted possession of the person pleading ouster, and (iii) exercise of right of exclusive ownership openly and to the knowledge of other co-owner. Thus, a co-owner, can under law, claim title by adverse possession against another co-owner who can, of course, file appropriate suit including suit for joint possession within time rescribed by law.” In Civil Suit O.S. No. 404 of 1962, filed by the plaintiff in the court of VII Assistant City Civil Judge, it was the stand of the plaintiff that she had been dispossessed from the property in the year 1957. Defendant had taken a plea at paragraph-14 of the written statement that “after the death of Kotilingaraja in 1955, the property vested on his son Chandrasekaralingam and after his death in 1956 on his son this defendant, since then this defendant has been in exclusive possession and enjoyment of the suit property paying the property tax etc., with the patta in his name”. At Paragraphs-28 and 29 of the written statement also, the defendant had taken a specific plea on hostile animus and exclusive possession. The averments read as follows:This defendant submits that for the past 30 years and more he has been in exclusive possession of the suit property and Plaintiff’s claim is also barred by adverse possession and limitation.This defendant states that Patta over the suit property has been ordered to be registered in his name and the claim of this plaintiff was rejected by the Settlement Enquiry Tahsildar, by his order dated 14.11.1959, after due enquiry and notice to parties.”The above being the emerging true factual and correct legal position, with a view to putting an end to five decades old disputes between a sister and brother, to avoid any further litigation and to get the families to reconcile and restore peace, we put a suggestion for a reasonable settlement. Thanks to the sincere cooperation extended by Sri Viswanathan, learned Senior Counsel for the appellant, Sri V. K. Shukla, learned Counsel for the respondent and the cooperation extended by the parties themselves, it is heartening to note that a solution has evolved. Accordingly, it is ordered that the appellants shall be entitled to 35% and the respondent 65%. Let the suit property be accordingly partitioned. If it is found that it is not possible to do so by metes and bounds, let the property be sold and proceeds shared accordingly. We direct the Principal City Civil Judge, Madras to take the required steps to work out this order and finalise everything expeditiously, and in any case, within three months from the date of production of a copy of this judgment. The appeals are disposed of accordingly.

                        IN THE SUPREME COURT OF INDIA

                       CIVIL  APPELLATE  JURISDICTION

                     CIVIL APPEAL NOS. 1858-1859 OF 2016
               (Arising from S.L.P. (C) Nos. 10449-10450/2009)


NAGABHUSHANAMMAL (D) BY LRS.            … APPELLANT (S)

                                   VERSUS

C. CHANDIKESWARALINGAM                  … RESPONDENT (S)


                               J U D G M E N T

KURIAN, J.:



Delay condoned. Substitution allowed. Leave granted.


 Res judicata,  partition,  ouster  and  adverse  possession  are  the  four
principles interestingly arising in the present case.

SHORT FACTS

Parties  are  referred  to   as   plaintiff   and   defendants.   Appellant-
Nagabhushanammal,  since  deceased  and  substituted  by  her  legal   heirs
(daughter of  deceased  Kotilingaraja  and  Veerammal),  filed  a  suit  for
partition, O.S. No. 2062 of 1988 before the City Civil  Court,  Madras.  The
suit property situated  at  No.  4,  Govindarajulyu  Naidu  Street,  Agaram,
Madras-82 was purchased by the plaintiff’s mother Veerammal from her father-
in-law and his two  sons  under  a  sale  deed  dated  16.09.1919  (Document
No.1919, SRO, Sembium) from out  of  her  own  funds.  Veerammal  had  three
children, the plaintiff, the first defendant’s father  named  Chandrasekaran
and one Neelagandammal. Veerammal, the original owner of the  suit  property
died in 1922 leaving  behind  her,  the  plaintiff  and  her  brother,  late
Chandrasekaran, the other daughter Neelagandammal  having  pre-deceased  her
mother Veerammal. After the death of Veerammal, the property vested  equally
on the plaintiff and Chandrasekaran, the defendant’s father.  On  the  death
of Chandrasekaran in 1956, his half share of the  suit  property  vested  on
the defendant and his  mother  Saradhambal,  the  widow  of  Chandrasekaran.
According to the plaintiff,  in  or  about  1961,  the  plaintiff’s  husband
realized that Veerammal, the owner of the property had settled the  property
in his  name  by  registered  document  dated  06.02.1954.  He  settled  the
property in  his  wife’s  (the  plaintiff’s)  name.  This  was  resented  by
defendant’s  mother,  Saradambal.  That  necessitated  the  filing  by   the
plaintiff of a suit O.S. No. 404 of 1962 on the  file  of  the  VII  Assit.,
City Civil Judge, Madras praying for possession  of  suit  property  on  the
basis of the settlement  made  by  the  said  Veerammal  and  later  by  her
husband. The learned  Judge  refused  to  believe  the  genuineness  of  the
settlement made by Veerammal in favour of her  son-in-law,  K.  Subramanian,
the husband of the plaintiff and hence dismissed the suit on 24.08.1964.

Thereafter, the plaintiff filed the present suit in 1988 for partition.

The defendant, in the written statement, mainly contended that the suit  for
partition is not maintainable and is hit by Section 11 of The Code of  Civil
Procedure, 1908 on the principle of res  judicata.  It  was  his  case  that
after the death of Kotilingaraja in 1955, the property  vested  on  his  son
Chandrasekaran, after his death in 1956, on his son the defendant and  since
then the defendant has been in exclusive possession  and  enjoyment  of  the
suit property paying the property tax, etc., with patta in his name.

A specific contention was also taken that the plaintiff  did  not  have  any
right in the property and that as to the date of  the  suit,  the  defendant
had been in exclusive possession of the suit property for more  than  thirty
years, and hence, the suit was liable to  be  dismissed  on  the  ground  of
adverse possession and limitation as well.



The following issues were framed by the trial court:

“1.   Whether the suit property is liable to be partitioned?

2.    Whether  the  Plaintiff  is  entitled  for  half  share  in  the  suit
property?

3.    Whether the Defendant is  liable  to  render  accounts  for  the  suit
property?

4.    Whether the suit is affected by res judicata?

5.    To what relief the Plaintiff is entitled?”



The trial court held that the suit for partition was hit  by  the  principle
of res judicata in view of the dismissal of the earlier suit, O.S.  No.  404
of 1962, referred to hereinabove. The defence  of  adverse  possession  also
was upheld and the suit was thus dismissed by judgment dated 14.08.1990.

In the first appeal, A.S. No. 271 of 1990 on the  file  of  the  City  Civil
Court, Chennai, the judgment of the trial court was reversed  and  the  suit
was decreed. According to the first appellate court, the decree in O.S.  No.
404 of 1962, a suit for possession and  injunction  based  on  a  settlement
deed executed by the husband of  the  plaintiff,  was  not  a  bar  for  the
plaintiff’s suit for partition. It was held that the nature of the suit  was
different, issues were different and the whole basis of the  suit  was  also
different. On adverse possession, the first appellate court  held  that  the
plaintiff and defendant were entitled  to  succeed  to  the  extent  of  the
property of  their  mother,  after  the  death  of  their  father  and  that
plaintiff and defendant are co-owners in joint possession under law.  Unless
one of the co-owners, in the present case, the plaintiff,  had  been  ousted
in accordance with law, the plaintiff could claim the  partition  and  there
is no question of adverse possession.

The defendant took up the matter before the High Court in second  appeal  in
S.A. No. 1792 of 1992 leading to the  impugned  judgment  dated  17.01.2008.
The second appeal was admitted on  the  following  substantial  question  of
law:

“Whether the Lower Appellate Court was right in the view it  took  that  the
Appellant has not established prescriptive title to the property?”



Later, the  following  additional  substantial  question  of  law  was  also
formulated:

“Is not the Plaintiff in the present Suit bound by  her  admission  made  in
the Plaint filed by her in O.S. No. 404/1962  regarding  dispossession  from
the year 1957?”







The High Court was of the view that:

“16.  The right of the parties was directly in  issue  in  earlier  Suit  in
O.S. No. 404/1962.  As discussed earlier in  O.S.  No.  404/1962,  Plaintiff
claimed right in the entire Suit Property and  sought  for  declaration  and
possession. Saradhambal resisted the Suit claiming  possession  and  setting
up right in herself. Having regard to the  nature  of  plea  taken  by  both
parties,  dismissal  of  O.S.  No.   404/1962   is   a   strong   militating
circumstances against the Plaintiff and maintainability of the Suit in  O.S.
No. 2062/1988.  The  right  and  title  of  the  parties  was  directly  and
substantially in issue in O.S. No. 404/1962. As per Sec.11 of  CPC,  if  the
matter was in issue directly and substantially in  a  prior  litigation  and
decided against a party then  the  decision  would  be  res  judicata  in  a
subsequent proceeding. In any event the filing of subsequent Suit  O.S.  No.
2062/1988 is nothing but re-litigation. After putting the case in  one  way,
then putting the case in other way  is  nothing  but  abuse  of  process  of
Court, which was not kept in view by the trial Court.”



On adverse possession, despite beautifully summing up the legal position  at
paragraph-20 in the following lines,:

“20.  … To sum up, the  basic  distinction  between  adverse  possession  as
between strangers and ouster and exclusion of co-owners,  the  law  is  well
settled that as between co-owners, there  could  be  no  adverse  possession
unless there has been a denial of title and an ouster to  the  knowledge  of
the other.”



the High Court entered a finding that the possession of  the  suit  property
by the defendant continuously since 1956  has  become  adverse  to  that  of
plaintiff. This finding by the High court is based on the averment  made  by
the plaintiff in the suit that the defendant  therein  had  trespassed  into
the suit property in 1956. In any case, according to the High  Court,  after
dismissal of O.S. No. 404 of 1962, the possession of  the  property  by  the
defendant had become adverse to the  plaintiff.  Accordingly,  the  judgment
and decree of the first appellate court was set aside and that of the  trial
court, dismissing the suit for partition, was  restored  and  second  appeal
was allowed. Aggrieved, the present appeal.

‘Res judicata’ literally means a “thing adjudicated” or “an issue  that  has
been definitively settled by judicial decision”.[1]  The principle  operates
as a bar to try the same issue once over. It aims  to  prevent  multiplicity
of proceedings  and  accords  finality  to  an  issue,  which  directly  and
substantially had arisen in the former suit  between  the  same  parties  or
their privies and was decided and has become final, so that the parties  are
not vexed twice over; vexatious litigation is put an  end  to  and  valuable
time of the court is saved. (See Sulochanna Amma v. Narayanan Nair[2])

 In Jaswant Singh v. Custodian of Evacuee Property[3], this Court  has  laid
down a test for determining whether a  subsequent  suit  is  barred  by  res
judicata:


“…In order that a defence of res judicata may succeed  it  is  necessary  to
show that not only the cause of action  was  the  same  but  also  that  the
plaintiff had an opportunity of getting the relief which he is  now  seeking
in the former proceedings. The test is whether the claim in  the  subsequent
suit or proceedings is in fact founded upon the same cause of  action  which
was the foundation of the former suit or proceedings….”



The expression ‘cause of action’ came to be interpreted  by  this  Court  in
Kunjan Nair Sivaraman Nair v. Narayanan Nair[4], at paragraph-16. To quote:



“16. The expression “cause of action”  has  acquired  a  judicially  settled
meaning. In the restricted sense cause of  action  means  the  circumstances
forming the infraction of the  right  or  the  immediate  occasion  for  the
action. In the wider sense,  it  means  the  necessary  conditions  for  the
maintenance of the suit, including not only the  infraction  of  the  right,
but  the  infraction  coupled  with  the  right  itself.  Compendiously  the
expression means every fact which would be necessary for  the  plaintiff  to
prove, if traversed, in order to support his right to the  judgment  of  the
court. Every fact which is necessary to be  proved,  as  distinguished  from
every piece of evidence which is necessary to prove each fact, comprises  in
“cause of action”.”




In Halsbury’s Laws of England(4th Edition), the expression has been  defined
as follows:
“‘Cause of action’ has been defined as meaning simply  a  factual  situation
the existence of which entitles one  person  to  obtain  from  the  court  a
remedy against another person. The phrase has been held from  earliest  time
to include every fact  which  is  material  to  be  proved  to  entitle  the
plaintiff to succeed, and every fact which a defendant would  have  a  right
to traverse. ‘Cause of action’ has also been taken to mean  that  particular
act on the part of the defendant which gives  the  plaintiff  his  cause  of
complaint, or the subject-matter  of  grievance  founding  the  action,  not
merely the technical cause of action.”




The suit filed by the plaintiff  in  1962,  based  on  the  settlement  deed
executed by her husband in her favour and the sufferance  of  the  dismissal
of the suit, will not, in any way, be a bar  for  making  a  claim  for  her
share, if any, of the family property, if otherwise permissible  under  law.
As succinctly addressed by the first appellate court, the 1962 suit for  the
entire property was based on a  settlement  deed  and  it  was  a  suit  for
possession. Whereas, the 1988 suit for partition was  for  plaintiff’s  one-
half share in the property based on her birth  right.  Cause  of  action  is
entirely different.

Thus, the High Court in our opinion  is  not  right  on  the  point  of  res
judicata.

The other main defense in the suit is ouster and  limitation.  Ouster  is  a
weak defense in a suit for partition of family property and it is strong  if
the defendant is able to establish consistent and open assertion  of  denial
of title, long  and  uninterrupted  possession  and  exercise  of  right  of
exclusive ownership openly and to the knowledge of the other co-owner

This court in Syed Shah Ghulam Ghouse Mohiuddin  and  others  v.  Syed  Shah
Ahmed Mohiuddin Kamisul Quadri and Ors[5] held that possession  of  one  co-
owner is presumed to be on behalf of all co-owners unless it is  established
that the possession of the co-owner is in denial of title of  co-owners  and
the possession is in hostility to co-owners by exclusion  of  them.  It  was
further held that there has to be open denial of title to  the  parties  who
are entitled to it by excluding and ousting them.

A three judge bench of this court in P.Lakshmi Reddy v. R.Lakshmi  Reddy[6],
while examining the necessary conditions for applicability  of  doctrine  of
ouster to  the shares of co-owners, held as follows:
“4. Now, the ordinary classical requirement of adverse  possession  is  that
it should be  nec vi nec clam  nec  precario. (See Secretary  of  State  for
India v. Debendra Lal Khan [ (1933) LR 61  IA  78,  82]  ).  The  possession
required must be adequate in continuity, in publicity and in extent to  show
that  it  is  possession   adverse   to   the   competitor.   (See Radhamoni
Debi v. Collector of Khulna [ (1900) LR 27 IA 136, 140] ). But it  is  well-
settled that in order to establish adverse  possession  of  one  co-heir  as
against another it is not enough to show that one out of  them  is  in  sole
possession and enjoyment of the profits of the  properties.  Ouster  of  the
non-possessing  co-heir  by  the  co-heir  in  possession  who  claims   his
possession to be adverse, should be made out. The possession of one  co-heir
is considered, in law, as possession of all the co-heirs. When  one  co-heir
is found to be in possession of the properties it is presumed to be  on  the
basis  of  joint  title.  The  co-heir  in  possession  cannot  render   his
possession adverse to the other co-heir not  in  possession  merely  by  any
secret hostile animus on his own part in derogation of the  other  co-heir's
title. (See Cores v. Appuhamy  [(1912) AC 230)]. It is  a  settled  rule  of
law that as between co-heirs there must be evidence  of  open  assertion  of
hostile title, coupled with exclusive possession and  enjoyment  by  one  of
them to the knowledge of the other so as to  constitute  ouster.  This  does
not necessarily mean that there must be an express demand by one and  denial
by the other.”






This Court in Vidya Devi v. Prem Prakash[7] held that:
“28. ‘Ouster’ does not mean actual driving out of  the  co-sharer  from  the
property. It will, however, not be complete unless it is  coupled  with  all
other  ingredients  required  to  constitute  adverse  possession.   Broadly
speaking, three elements are necessary for establishing the plea  of  ouster
in the case of co-owner. They are (i) declaration of  hostile  animus,  (ii)
long and uninterrupted possession of the person pleading ouster,  and  (iii)
exercise of right of exclusive ownership openly  and  to  the  knowledge  of
other co-owner. Thus, a co-owner, can under  law,  claim  title  by  adverse
possession against another co-owner who can,  of  course,  file  appropriate
suit including suit for joint possession within time rescribed by law.”






In Civil Suit O.S. No. 404 of 1962, filed by the plaintiff in the  court  of
VII Assistant City Civil Judge, it was the stand of the plaintiff  that  she
had been dispossessed from the property in  the  year  1957.  Defendant  had
taken a plea at paragraph-14 of the written statement that “after the  death
of   Kotilingaraja   in   1955,   the   property   vested   on    his    son
Chandrasekaralingam and after his death in 1956 on his son  this  defendant,
since then this defendant has been in exclusive possession and enjoyment  of
the suit property paying the property  tax  etc.,  with  the  patta  in  his
name”.   At  Paragraphs-28  and  29  of  the  written  statement  also,  the
defendant had  taken  a  specific  plea  on  hostile  animus  and  exclusive
possession. The averments read as follows:

“28.  This defendant submits that for the past 30  years  and  more  he  has
been in exclusive possession of the suit property and Plaintiff’s  claim  is
also barred by adverse possession and limitation.





29.   This defendant states that Patta  over  the  suit  property  has  been
ordered to be registered in his name and the claim  of  this  plaintiff  was
rejected  by  the  Settlement  Enquiry  Tahsildar,  by   his   order   dated
14.11.1959, after due enquiry and notice to parties.”



The above being the emerging true factual and correct legal  position,  with
a view to putting an end to five decades old disputes between a  sister  and
brother, to avoid  any  further  litigation  and  to  get  the  families  to
reconcile  and  restore  peace,  we  put  a  suggestion  for  a   reasonable
settlement.  Thanks to the sincere cooperation extended by Sri  Viswanathan,
learned Senior Counsel for the appellant, Sri V. K. Shukla, learned  Counsel
for the respondent and the cooperation extended by the  parties  themselves,
it is heartening to note that a solution has evolved.   Accordingly,  it  is
ordered that the appellants shall be entitled  to  35%  and  the  respondent
65%.  Let the suit property be accordingly partitioned. If it is found  that
it is not possible to do so by metes and bounds, let the  property  be  sold
and proceeds shared accordingly.  We direct the Principal City Civil  Judge,
Madras to take the required steps  to  work  out  this  order  and  finalise
everything expeditiously, and in any case,  within  three  months  from  the
date of production of a copy of this judgment. The appeals are  disposed  of
accordingly.



There shall be no order as to costs.


                                                           ……………..……………………J.
                                                                     (KURIAN
JOSEPH)

                                                           ……………..……………………J.
                                                     (ROHINTON FALI NARIMAN)
New Delhi;
February 26, 2016.
-----------------------
[1]    Black’s Law Dictionary, 8th Edition, p.1337
[2]    (1994) 2 SCC 14
[3]    (1985) 3 SCC 648
[4]    (2004) 3 SCC 277
[5]    (1971) 1 SCC 597
[6]    AIR 1957 SC 1789
[7]    (1995) 4 SCC 496

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                                                                  REPORTABLE


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8

Cheque was issued from the personal account - company holds no liability for cheque bounce = the cheque which had been dishonoured may have been issued by the Respondent No.11 for discharging the dues of the Appellant No.1 Company and its Directors to the Respondent No.1 Company and the Respondent Company may have a good case against the Appellant No.1 Company for recovery of its dues before other fora, but it would not be sufficient to attract the provisions of Section 138 of the 1881 Act. The Appellant Company and its Directors cannot be made liable under Section 138 of the 1881 Act for a default committed by the Respondent No.11. An action in respect of a criminal or a quasi-criminal provision has to be strictly construed in keeping with the provisions alleged to have been violated. The proceedings in such matters are in personam and cannot be used to foist an offence on some other person, who under the statute was not liable for the commission of such offence.

                                   REPORTABLE

               IN THE SUPREME COURT OF INDIA

              CRIMINAL APPELLATE JURISDICTION

            CRIMINAL APPEAL NO. 1357 OF 2010
     (@ SPECIAL LEAVE PETITION(CRL) No.1361 of 2007)


P.J. Agro Tech Limited & Ors.                 ... Appellants

             Vs.

Water Base Limited                             ... Respondent



                     J U D G M E N T



ALTAMAS KABIR, J.



1.     Leave granted.


2.     The   Appellant   No.1   herein   is   an   agro-based

company having varied interests in providing feed

supplements, vaccines etc.        The Appellant Nos.2 and
                                                                         2


3 are the Managing Director and Chairperson of the

Appellant No.1 Company, which is based in Hyderabad

in    the    State   of        Andhra    Pradesh.         In    order    to

utilize the dealer network of the Appellant No.1

Company, the Respondent No.1 Company approached the

Appellants         for         distribution        of      prawn       feed

manufactured by it.              Inasmuch as, the said venture

did    not    turn       out     to   be    very       successful,       the

Appellant         No.1     Company         took    a      decision        to

discontinue its dealings with the Respondent No.1

Company. In furtherance of the above, the Appellant

Company      settled      all      its     outstandings         with     the

Respondent         No.1        Company      and        also     gave      an

authorization letter to the Respondent No.1 Company

to    collect      all     other        dues     directly       from    the

customers of the Appellant No.1 Company, who had

bought      the   feed    but     were     yet    to    pay    the     price

therefor.          The     concerned           customers       were     also

informed about the aforesaid decision. Thereafter,
                                                          3


on   4th   October,   2001,       the   Appellant    Company

requested the Respondent No.1 Company to coordinate

with one K. Balashankar Reddy, the then General

Manager at Nellore, for collecting the dues which

were still outstanding.          From the contents of the

said letter it appears that the Respondent Company

had accepted the said offer. However, in the course

of making collections from the customers directly,

it   was   found   that   some    of    its   employees   had

conspired with the said K. Balashankar Reddy and

had misappropriated some amounts of money and the

same was intimated by the Respondent No.1 Company

to the Appellant Company which asked the former to

take action against the said Balashankar Reddy and

its concerned employees.


3.     Subsequently, however, the Appellant and the

Proforma Respondents received a notice dated 13th

December, 2002, from the Respondent No.1 Company

purporting to be a notice under Section 138 of the
                                                                    4


Negotiable        Instruments          Act,    1881,      hereinafter

referred    to     as      "the     1881    Act",   wherein    it   was

stated that a cheque issued by K. Balashankar Reddy

on 25th November, 2002, drawn on the State Bank of

Hyderabad,       Nellore          Branch,     had    been     returned

dishonoured with the endorsement "Account closed".

The notice also demanded repayment of the cheque

amount from the Appellants.


4.     On receiving the said notice, the Appellants

replied to the same on 26th December, 2002, stating

that they never had any account with the State Bank

of Hyderabad and the cheque in question had not

been     issued       by      the     Appellant      No.1     Company.

Apparently, there was no response to the reply sent

on     behalf    of     the       Appellants       and   instead    the

Appellants were served with summons from the Court

of     XVIIIth     Metropolitan            Magistrate,       Saidapet,

Chennai, in Complaint Case No.1142 of 2003 based on

the     complaint       which        had    been     filed    by    the
                                                               5


Respondent      No.1      on   23rd   January,        2003.   The

Appellants     entered     appearance    in     the    aforesaid

complaint case and upon obtaining copies of the

complaint, they were surprised to learn that the

same had been filed against the Appellants on the

basis of a personal cheque issued by the Accused

No.11,    K.   Balashankar      Reddy,   from    out     of   his

personal savings bank account.              The said summons

was challenged by the Appellants and the Proforma

Respondents before the High Court on the ground

that the Company did not have any account with the

State Bank of Hyderabad and that the cheque had

been issued by K. Balashankar Reddy (Accused No.11)

from out of his personal savings bank account and

that   none    of   the   Directors   had   signed      the   said

cheque.    It was contended that the complaint was an

abuse of the process of Court and had been filed

with the sole motive of extracting money from the

Appellants.     On 14th September, 2006, the High Court
                                                                     6


dismissed the said petition holding that the cheque

which had been issued by K. Balashankar Reddy was

to meet the liability of the Appellant No.1 Company

and its Directors on their request and that as a

result     they    had     rightly     been      prosecuted       under

Section 138 of the 1881 Act.               The said order of the

High Court dismissing the Appellants' petition has

been challenged in the instant Appeal essentially

on the ground that the High Court had erred in

allowing     the       complaint     proceedings        to    continue

although the same were not maintainable against the

Appellants and the Proforma Respondents who were

not the drawers of the cheque, nor was the cheque

issued from any of their banks.


5.   Appearing for the Appellants, Mr.                       Siddharth

Dave,    learned       Advocate,     submitted     that       both   the

learned Magistrate as well as the High Court had

failed to consider in their proper perspective the

provisions        of    Section      138    of    the        Negotiable
                                                        7


Instruments Act, 1881.       It was pointed out by Mr.

Dave that in order to attract the provisions of

Section 138 of the 1881 Act, it was necessary that

a cheque would have to be drawn by a person on an

account maintained by him with his banker and if

the said cheque was dishonoured, it would be deemed

that   such   person   had   committed   an   offence   and

would, without prejudice to any other provision of

the Act, be punished with imprisonment for a term

which may be extended to two years or with fine

which may extend to twice the amount of the cheque

or with both.      Mr. Dave urged that in order to

maintain an action against a person under Section

138 of the 1881 Act, it would be necessary to show

that the cheque had been issued by such person on

an account maintained by him, which fact was absent

in the instant case as far as the Appellants are

concerned.     It was reiterated that the cheque in

question had been drawn by the Respondent No.11 in
                                                                 8


his     personal     capacity      on    his     bank    and    upon

dishonour      thereof,     only   he    could     be    prosecuted

under Section 138 of the 1881 Act.                It was further

submitted that the proceedings against the Company

and its Directors were not maintainable and the

High Court had erred in law in not quashing the

same.


6.    The stand taken on behalf of the Appellants was

vehemently opposed on behalf of the Respondent No.1

Company and a spirited attempt was made to involve

the Appellant No.1 Company and its Directors for

dishonour of the cheque which had been issued by

the Respondent No.11 from his own bank, which did

not attract the provisions of Section 138 of the

1881 Act against the Appellant No.1 Company and its

Directors.      It was urged that since the cheque had

been issued by the Respondent No.11 to liquidate

the     dues    of   the     Appellant         Company    and    its

Directors,     the   High    Court      had    quite    justifiably
                                                            9


refused     to    quash   the    complaint    filed    by   the

Respondent No.1 Company.


7.   From   the    submissions    made   on   behalf   of   the

respective parties, it is quite apparent that the

short point for decision in this Appeal is whether

a complaint under Section 138 of the 1881 Act would

be maintainable against a person who was not the

drawer of the cheque from an account maintained by

him, which ultimately came to be dishonoured on

presentation.


8.   Since the provisions of Section 138 of the 1881

Act have fallen for consideration in this Appeal,

the same are extracted hereinbelow :-


     "138.    Dishonour     of    cheque    for
     insufficiency, etc., of funds in the
     account - Where any cheque drawn by a
     person on an account maintained by him
     with a banker for payment of any amount of
     money to another person from out of that
     account for the discharge, in whole or in
     part, of any debt or other liability, is
     returned   by  the  bank   unpaid,  either
                                              10


because of the amount of money standing to
the credit of that account is insufficient
to honour the cheque or that it exceeds
the amount arranged to be paid from that
account by an agreement made with that
bank, such person shall be deemed to have
committed an offence and shall, without
prejudice to any other provisions of this
Act, be punished with imprisonment for a
term which may be extended to two years,
or with fine which may extend to twice the
amount of the cheque, or with both:

      Provided that nothing contained     in
this section shall apply unless-

(a)    the cheque has been presented to the
      bank within a period of six months
      from the date on which it is drawn or
      within the period of its validity,
      whichever is earlier;

(b) the payee or the holder in due course
    of the cheque, as the case may be,
    makes a demand for the payment of the
    said amount of money by giving a
    notice in writing, to the drawer of
    the cheque, within thirty days of the
    receipt of information by him from the
    bank regarding the return of the
    cheque as unpaid; and

(c)   the drawer of such cheque fails to
      make the payment of the said amount of
      money to the payee or, as the case may
      be, to the holder in due course of the
      cheque, within fifteen days of the
      receipt of the said notice.
                                                        11



     Explanation.-For the purposes of this
     section, "debt or other liability" means a
     legally   enforceable   debt    or   other
     liability."


     From a reading of the said Section, it is very

clear   that   in   order   to   attract   the   provisions

thereof a cheque which is dishonoured will have to

be drawn by a person on an account maintained by

him with the banker for payment of any amount of

money to another person from out of that account

for the discharge, in whole or in part of any debt

or other liability.     It is only such a cheque which

is dishonoured which would attract the provisions

of Section 138 of the above Act against the drawer

of the cheque.


9.   In the instant case, the cheque which had been

dishonoured may have been issued by the Respondent

No.11 for discharging the dues of the Appellant

No.1 Company and its Directors to the Respondent
                                                              12


No.1 Company and the Respondent Company may have a

good case against the Appellant No.1 Company for

recovery   of    its   dues    before   other   fora,   but    it

would not be sufficient to attract the provisions

of Section 138 of the 1881 Act.                 The Appellant

Company and its Directors cannot be made liable

under Section 138 of the 1881 Act for a default

committed by the Respondent No.11.               An action in

respect of a criminal or a quasi-criminal provision

has to be strictly construed in keeping with the

provisions      alleged   to    have    been    violated.     The

proceedings in such matters are in personam and

cannot be used to foist an offence on some other

person, who under the statute was not liable for

the commission of such offence.


10. Having regard to the above, we allow the Appeal

and set aside the order passed by the High Court

and quash the complaint filed by the Respondent

No.1 Company as far as the Appellants and other
                                                                                     13


Proforma Respondents are concerned. In the event,

any of the Appellants and/or Proforma Respondents

have   been   released   on   bail,       they            shall               stand

discharged from their bail bonds forthwith.


11. The Appeal is allowed to the aforesaid extent.




                                          ................................................J.
                                                   (ALTAMAS KABIR)



                                     ................................................J.
                                 (DR.MUKUNDAKAM SHARMA)
New Delhi



Dated: 28.7.2010