Having regard to the said development which had taken place after the PFA dated 23.12.2011 which discloses that the appellant did not commit any default in complying with the direction of the said Award and, therefore, the present direction of the learned Judge in the impugned order was wholly unwarranted. If the respondent failed to act based on the final transfer deed executed by the appellant on 4.4.4012, which was in tune with the draft forwarded by the respondent themselves, the appellant cannot be in any way blamed for the misfeasance committed by the respondent. when we consider the prayer of the respondent as claimed in the application, the prayer was for a direction to the appellant to execute the deed of transfer and assignment of Patent Nos. 2143/MUM/2008 and 2144/MUM/2008 in favour of the respondent in terms of the draft deed in Annexure P6, which was dated 4.4.2012. In fact the learned Judge, as rightly pointed out by Mr. Vishwanathan, learned senior counsel for the appellant, completely missed to note that based on the correspondence exchanged between the respondent and the appellant between 19.1.2012 and 3.4.2012 Annexure P6 which was dated 4.4.2012 was the ultimate transfer deed which the appellant was obliged to execute, that the appellant duly executed the said document by signing the same on 4.4.2012 and forwarded to the respondent's lawyers on 9.4.2012 and the due execution of which was also confirmed on behalf of the respondent by their lawyers on 11.4.2012. A further confirmation was made by the respondent's counsel to the respondent themselves on the same day, i.e. 11.4.2012 as to the execution of the transfer deed dated 4.4.2012. The original documents were also forwarded by the appellant on 12.4.2012. After the above referred sequence of events as regards Annexure P6 dated 4.4.2012 are noted, it must be held that the direction contained in paragraph 7 of the PFA of the Arbitral Tribunal was duly carried out by the appellant based on the first request of the respondent themselves as made on 19.1.2012 and as per the modified request dated 3.4.2012. If that was the real fact situation in regard to the execution of the transfer deed, which was completely omitted to be noted by the learned Single Judge, it must be held that there was no occasion for the respondent to have any grievance in regard to the execution of the transfer deed as directed in paragraph 7 of the PFA of the Arbitral Tribunal dated 23.12.2011. The failure on the part of the learned Judge in having noted the fact that the transfer deed dated 4.4.2012 was as per the re-draft forwarded by the respondent themselves which was duly executed and sent back by the appellant by 9.4.2012 and the original by 12.4.2012 unfortunately resulted in the passing of the impugned order. In the light of the said patent illegality in the impugned order, the same is liable to be set aside.In the said circumstances, the impugned order of the learned Judge cannot be sustained, the same is set aside and the appeals stand allowed.

                                                                  REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION

                    CIVIL APPEAL NOS. 4359-4360  OF  2016
                [arising out of SLP(C) Nos.3134-3135 of 2015]

M/S. SHINHAN APEX CORPORATION             …APPELLANT

                                   VERSUS

M/S. EURO APEX B.V.                 …RESPONDENT




                         J   U  D  G   M   E   N   T


Fakkir Mohamed Ibrahim Kalifulla, J.

Leave granted.

These appeals are directed against the order dated  29.9.2014  in  Execution
Application No.643 of 2013 in Award dated 23.12.2011  with  Chamber  Summons
No.832 of 2014.

To briefly note the  facts,  there  was  a  Licence  Agreement  between  the
appellant and the respondent dated 22.2.1993 which provided  for  settlement
of disputes by way of arbitration in accordance with the Rules of the  Dutch
Arbitration Institute. The said agreement was sought to be terminated  by  a
notice by the respondent on 12.3.2007. The termination was  to  take  effect
from  23.02.2008.  The  dispute  went  before  the  Arbitral  Tribunal.   On
11.6.2008, the appellant filed an application  for  registration  of  Patent
Nos.10-0865115 and 100909490 in the United States as well as  in  India.  In
the arbitral proceedings, a Partial Final Award (for short, PFA) came to  be
passed by the Arbitral Trinunal on 23.12.2011. We  are  presently  concerned
with the Indian Patents in which the appellant's rights  and  interest  were
involved, namely, Patent Nos. 2143/MUM/2008 and 2144/MUM/2008. The  relevant
part of the award (viz) paragraphs 7 and 9, of the PFA reads as under:-

“7. Respondent  to,  within  30  days  following  the  notification  of  the
arbitration award,  unconditionally  and  irrevocably,  fully  transfer  all
rights and interests of Indian Patent No.2143/MUM/2008 and 2144/MUM/2008  to
Claimant, or a company designated by Claimant, and sign/execute and  submit,
at the first request of Claimant, and within 3 days following such  request,
all the documents that  are  required  to  effect  such  patent  rights  and
interests transfer in accordance with the requirements of the Indian  Patent
Act and applicable Indian laws; and to simultaneously provide copies of  all
the relevant correspondence relating to such transfer  to  the  attorney  of
Claimant by fax and registered post (fax: +31-20-6513001, HIL  International
Lawyers & Advisers, PO Box 22678, 1100 DD Amsterdam, the Netherlands);

8.          xxx        xxx        xxx

9. Respondent to pay a direct enforcement penalty  in  the  amount  of  Euro
50,000 for each case in which Respondent infringes the arbitral  orders  sub
7 and 8 above, and Euro 5,000 for each day the infringement continues;”



The Award dated 23.12.2011 was communicated to the parties by  the  Arbitral
Tribunal on 27.12.2011.  Therefore, the period  of  thirty  days,  fixed  in
paragraph 7, was to start from 27.12.2011.

Closely followed  by  that,  the  respondent  forwarded  its  request  dated
19.1.2012 in the form of a  letter  communicated  by  the  Advocate  of  the
respondent to the appellant  by  enclosing  the  required  documents  to  be
executed by the appellant for the purpose of transfer of  the  patents.   In
the opening paragraph of the draft transfer deed a  reference  was  made  to
PFA rendered on 23.12.2011 of CASE NAI  3625,  in  order  to  ascertain  the
obligation of the appellant to execute the transfer of the  patents.  It  is
not in dispute that subsequent to the said letter dated  19.1.2012  and  the
enclosures, discussions were held between January and March, 2012 among  the
advocates of the appellant and the respondent to finalize the draft deed  of
transfer.

Thereafter, again at the instance of the respondent through a  communication
dated 3.4.2012 of the respondent's lawyers addressed to the appellant a  re-
draft of the deed of transfer was enclosed, which  was  dated  4.4.2012.  In
the opening part  of  the  said  Deed,  the  reference  to  PFA,  which  was
mentioned in  the  earlier  draft  transfer  deed,  was  omitted.  In  other
respects, the draft remained the same which contained  a  clause  under  the
caption 'Consideration' to the effect, “Pursuant to the above,  the  Parties
agree that the consideration for the sale and transfer  of  the  patent  and
the patent rights shall be US$ 1 (United  States  Dollar  One),  receipt  of
which is hereby acknowledged”.

That apart, in clause 5.5 of the re-draft it was mentioned that  arbitration
of the dispute arising out of or in  connection  with  the  deed  should  be
initially settled under the Rules  of  Singapore  International  Arbitration
Centre by a Sole Arbitrator appointed in accordance with the said Rules  and
the proceedings should be in English and the seat of arbitration  should  be
Singapore. Insofar as the said clause was concerned, the same was  different
than the one which was contained in the earlier  draft,  as  per  which  the
arbitration was  to  be  carried  out  with  the  Rules  and  provisions  by
Netherlands Arbitration Institute  and  the  venue  of  the  arbitration  as
Hague, The Netherlands and governing law was also mentioned as the  laws  in
force  in  the  Netherlands  and  the  Courts   at   Netherlands   to   have
jurisdiction. In the draft dated 4.4.2012 the governing law was  to  be  the
laws in force in India.

The appellant received the re-draft by way of  e-mail  on  3.4.2012  with  a
direction to the appellant to sign the document, get  it  legalized  by  the
Indian Embassy in Seoul and dispatch the same to  the  respondent's  lawyers
in Amsterdam.  The appellant executed the deed of  transfer  dated  4.4.2012
and thereby transferred all its rights and interests in the  Indian  Patents
in favour of the respondent. The  appellant's  lawyers  sent  an  electronic
copy of  the  said  document  to  the  respondent  duly  notarized  with  an
assurance that the original would be promptly couriered  to  the  respondent
upon confirmation.  In response to the same, the lawyers of  the  respondent
in their e-mail dated 11.4.2012 intimated that the  signature  part  of  the
deed was correctly executed by the appellant and also  wanted  the  original
deed to be sent by courier to their Amsterdam Office for carrying out  other
additional formalities for effecting  the  transfer.  Simultaneously,  their
lawyers also  on  the  same  day  informed  the  respondent  confirming  the
forwarding of the transfer deed for effecting the  transfer  of  the  patent
applications duly signed by the appellant.  The original document  was  also
forwarded to the lawyers of the respondent on 12.4.2012.

However, it appears that the respondent had its own issue with  its  lawyers
as regards the draft as well as the final deed executed by the appellant  in
favour of the respondent which came to light when  the  present  proceedings
before the High  Court  was  launched  by  the  respondent.   The  same  was
reflected  in  the  communication   dated   12.4.2012   addressed   by   the
representative of the respondent  to  its  lawyers.   Thereafter,  the  next
communication was dated 3.12.2012 by the respondent's  lawyer  addressed  by
way of an e-mail to the appellant's lawyer suggesting that  the  transaction
can be by way of trade sale of the appellant's business. On  behalf  of  the
appellant, its lawyer sent a reply  dated  11.12.2012  taking  the  definite
stand that after the execution of  the  transfer  deed  dated  4.4.2012  the
requirement of the obligation to be fulfilled  by  the  appellant  was  duly
complied with as per the  PFA  dated  23.12.2011.   Thereafter,  by  another
communication dated 15.3.2013, the respondent's lawyers sent a fresh  e-mail
to the appellant's lawyers informing that fresh steps  are  required  to  be
taken to arrive at a final settlement of  disputes.   The  said  e-mail  was
also replied on behalf of the appellant on 20.3.2013 wherein the  respondent
was reminded as to  the  confirmation  of  the  steps  taken  based  on  the
transfer deed executed by them.  For the first time, on 8.6.2013, by way  of
e-mail at the instance of the respondent's lawyers  it  was  intimated  that
respondent was not willing to accept the transfer of  Indian  Patents  based
on the language used in the draft deed as  signed  by  the  appellant.   The
said e-mail was also duly replied on behalf of the  appellant  on  15.6.2013
pointing out that the deed was executed as per the draft  forwarded  to  the
respondent by their lawyers and consequently the appellant was  not  in  any
way liable for either any delay or for the terms contained in  the  transfer
deed.

It was in the above-stated background the present  application  came  to  be
filed by the respondent on 8.7.2013 before the High Court of Bombay for  the
enforcement of paragraph 7 of the PFA dated  23.12.2011.   By  the  impugned
order, the learned Single Judge held that there was  a  material  alteration
in the draft deed forwarded by the respondent  to  the  appellant  when  the
final deed was executed in the deed dated  4.4.2012  and  consequently,  the
appellant is bound to execute a transfer  deed  of  assignment  as  per  the
draft sent by the award holder, namely, the  respondent  as  was  originally
forwarded to the appellant.

With that view, the learned Judge directed  the  appellant  to  execute  the
deed  of  transfer  and  assignment  of  Patent   Nos.   2143/MUM/2008   and
2144/MUM/2008 in favour of the award holder in terms of Annexure P6  to  the
Execution Application incorporating therein the  complete  recital  'B'  and
the Arbitration Clause 5.5 showing the  future  arbitration  in  Netherlands
within two weeks from the date of the  order.   Aggrieved  by  the  impugned
order, the appellant is before us.

We heard Mr. K.V. Vishwanathan, learned senior  counsel  appearing  for  the
appellant and  Mr.  Manoj  K.  Singh,  learned  counsel  appearing  for  the
respondent.

Having drawn our attention to  the  above  factual  details  which  emanated
after the passing of PFA dated 23.12.2011, Mr. Vishwanathan, learned  senior
counsel, contended that  when  the  application  was  initially  moved,  the
respondent failed to bring to the notice of the Court  about  the  extensive
correspondence which took place between 19.1.2012 and 15.6.2013, that  after
the appellant in its Chamber Summons brought to the notice of the Court  the
relevant information,  namely,  the  re-draft  sent  by  the  respondent  on
3.4.2012 which contained the variation  in  para  'B'  as  between  the  one
contained in the earlier draft of 19.1.2012 and  3.4.2012  as  well  as  the
arbitration clause and the governing law contained  in  paragraphs  5.5  and
5.6, the respondent for the first time in their rejoinder referred to  those
documents.  The learned  senior  counsel  pointed  out  that  learned  Judge
completely omitted to take note of such relevant factors  and  proceeded  to
hold as though the draft sent by  the  respondent  on  19.1.2012  alone  was
material and that the changes found in the final deed dated 4.4.2012 was  at
the instance of the appellant which unfortunately led to the passing of  the
impugned order.

In reply, Mr. Singh, learned counsel appearing for the respondent,  was  not
able to controvert the factual position, namely, that the first  request  of
the respondent after the PFA dated  23.12.2011  was  19.1.2012,  that  along
with the said communication the draft deed of transfer  to  be  executed  by
the appellant was forwarded to it, that after detailed  discussions  between
January and March, 2012, the re-draft was forwarded  by  the  respondent  on
3.4.2012 wherein the reference to  PFA  in  the  opening  paragraph  of  the
earlier draft was omitted and that the paragraphs relating to  consideration
was specified apart from the change  about  the  venue  and  the  applicable
Rules  of  the  Arbitral  Tribunal  was  noted  as  Singapore   instead   of
Netherlands  and  the  governing  law  applicable  was  also  changed   from
Netherlands to India.  Learned counsel was also not able to  controvert  any
of the other subsequent correspondence exchanged between the  appellant  and
the respondent between 11.4.2012 and 15.6.2013.

Having regard to the said development which had taken place  after  the  PFA
dated 23.12.2011 which discloses that  the  appellant  did  not  commit  any
default in complying with the direction of the said  Award  and,  therefore,
the present direction of the learned Judge in the impugned order was  wholly
unwarranted.  If the respondent failed to act based on  the  final  transfer
deed executed by the appellant on 4.4.4012,  which  was  in  tune  with  the
draft forwarded by the respondent themselves, the  appellant  cannot  be  in
any way blamed for the misfeasance committed by the respondent.

In  the  above-stated  background,  when  we  consider  the  prayer  of  the
respondent as claimed in the application, the prayer was for a direction  to
the appellant to execute the deed of transfer and assignment of Patent  Nos.
2143/MUM/2008 and 2144/MUM/2008 in favour of the respondent in terms of  the
draft deed in Annexure P6, which was dated 4.4.2012.  In  fact  the  learned
Judge,  as rightly pointed out by Mr. Vishwanathan, learned  senior  counsel
for  the  appellant,  completely  missed  to  note   that   based   on   the
correspondence exchanged between the respondent and  the  appellant  between
19.1.2012 and  3.4.2012  Annexure  P6  which  was  dated  4.4.2012  was  the
ultimate transfer deed which the appellant was obliged to execute, that  the
appellant duly executed the said document by signing the  same  on  4.4.2012
and forwarded to the respondent's lawyers on 9.4.2012 and the due  execution
of which was also confirmed on behalf of the respondent by their lawyers  on
11.4.2012.  A further confirmation was made by the respondent's  counsel  to
the respondent themselves  on  the  same  day,  i.e.  11.4.2012  as  to  the
execution of the transfer deed dated 4.4.2012.  The original documents  were
also forwarded by the appellant  on  12.4.2012.  After  the  above  referred
sequence of events as regards Annexure P6 dated 4.4.2012 are noted, it  must
be held that the direction contained in  paragraph  7  of  the  PFA  of  the
Arbitral Tribunal was duly carried out by the appellant based on  the  first
request of the respondent themselves as made on 19.1.2012  and  as  per  the
modified request dated 3.4.2012. If that was  the  real  fact  situation  in
regard to the execution of the transfer deed, which was  completely  omitted
to be noted by the learned Single Judge, it must be held that there  was  no
occasion for  the  respondent  to  have  any  grievance  in  regard  to  the
execution of the transfer deed as directed in paragraph 7 of the PFA of  the
Arbitral Tribunal dated 23.12.2011. The failure on the part of  the  learned
Judge in having noted the fact that the transfer deed dated 4.4.2012 was  as
per the re-draft forwarded by  the  respondent  themselves  which  was  duly
executed and sent back by the appellant by  9.4.2012  and  the  original  by
12.4.2012 unfortunately resulted in the passing of the  impugned  order.  In
the light of the said patent illegality in the impugned order, the  same  is
liable to be set aside.

In the said circumstances, the impugned order of the  learned  Judge  cannot
be sustained, the same is set aside and the appeals stand allowed.



                                          ................................J.
                                          [Fakkir Mohamed Ibrahim Kalifulla]


                                          ................................J.
                                                                [S.A. Bobde]
New Delhi;
April 22, 2016

no offence is made out under Section 66 of the I.T. Act, read with Section 43. The appellant was a Director of Devi Polymers and nothing is brought on record to show that he did not have any authority to access the computer system or the computer network of the company. That apart there is nothing on record to show the commission of offence under Section 65 of the I.T. Act, since the allegation is not that any computer source code has been concealed, destroyed or altered. We have already observed that the acts of the appellant did not have any dishonest intention while considering the allegations in respect of the other offences. In the circumstances, no case is made out under Sections 65 and 66 of the I.T. Act, 2000.The High Court seems to have over looked these circumstances and has merely dismissed the petition under Section 482 of the Criminal Procedure Code on the ground that it requires evidence at a trial to come to any conclusion. We, however, find that the criminal proceedings initiated by the respondent constitute an abuse of process of Court and it is necessary to meet the ends of justice to quash the prosecution against the appellant.

                                                                  REPORTABLE


                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION



                       CRIMINAL APPEAL NO. 133 OF 2016
                (Arising out of S.L.P.(Crl.) No.2554 of 2011)


|RAMESH RAJAGOPAL                                         |Appellant(s)         |


                         Versus


      |DEVI POLYMERS PRIVATE LIMITED                            |Respondent(s)        |


                                JUDGMENT


      S.A.BOBDE, J.
      1.    We have heard learned counsel for the parties.


      2.    Leave granted.


      3.    The appellant has preferred this  appeal  against  the  judgment
      passed by the Madras High Court in Criminal  O.P.  No.  4404  of  2010
      refusing to quash the criminal proceedings initiated against him.


      4.    The appellant was prosecuted by the  respondent  under  Sections
      409, 468 and 471 of the Indian Penal Code (in short  'the  IPC')  read
      with Sections 65 and 66 of the Information Technology Act,  2000  read
      with Section 120(b) of the IPC.  The appellant is a Director  in  Devi
      Polymers Private Limited, Chennai  which  is  a  leader  in  Polyester
      Moulding Compound (PMC),  Sheet  Moulding  Compound  (SMC)  and  Dough
      Moulding Compound (DMCO) in India.


      It is also manufacturing  SMC  and  DMC  moulded  components  for  the
      electrical, automotive and various other industries.  The  company  is
      also supplying SMC and DMC compounds and components to almost all  the
      leading electrical switch gear industries and automotive industries in
      India.


      5.    It has three Units – A, B and C.  Unit 'C' is  being  headed  by
      the appellant.  It is not disputed that the Unit 'C' primarily renders
      consultancy services.  However, all the three Units are units  of  one
      entity i.e. Devi Polymers Private Limited.


      6.    In the course of business, the appellant  thought  of  improving
      the consultancy services and apparently contacted a  consultant  known
      as Michael T Jackson.  He also contacted the  regular  consultants  of
      the Company i.e.  Devi  Polymers  Private  Limited.   The  consultants
      apparently advised the creation of a separate  entity  known  as  Devi
      Consultancy Services and accordingly, in the web page that was created
      by the consultant, this name occurred.  Since an invoice  was   raised
      by  the consultant Michael T Jackson   in  the  sum  of  10,857.50  US
      Dollars, the said amount was paid from  the  funds  of  Devi  Polymers
      Private Limited amounting to Rs.5,57,207/-. The amount of  Rs.17,000/-
      has been paid by the Devi Polymers Private Limited to M/s  Easy  Link.
      These  amounts  were  paid  as  advised  by  the  appellant.   It   is
      significant that no amount  has  been  paid  or  received  by  Unit  C
      separately, independently of Devi Polymers Private Limited.  All this,
      namely the engaging of consultants and payments to them was apparently
      done at the behest of the appellant.


      7.    The relationship being strained between the respondent  and  the
      appellant, who are relatives, several proceedings seem  to  have  been
      initiated in the  Company  Law  Board  pertaining  to  oppression  and
      mismanagement.  As of now, it is said that  the  appellant's  petition
      for mismanagement has been dismissed but an  appeal  is  pending.   We
      are, however, not concerned with those proceedings.


      8.    However, in the course of disputes and the pending  proceedings,
      the respondent initiated the instant criminal  complaint  against  the
      appellant.  The main  circumstances  which  are  relied  upon  by  the
      respondent  in  the  complaint  is  that  in  the  website  for   Devi
      Consultancy Services that was created on the advice of the  consultant
      is shown as a separate division independent of Devi  Polymers  Private
      Limited.  According to the complainant, this has resulted in  forgery,
      since there is no such thing as Devi Consultancy Services; though  the
      existence of Unit C of Devi Polymers Private Limited, which deal  with
      consultancy is not denied.  The second circumstance seems  to  be  the
      payment made by the Devi Polymers Private Limited to  the  consultants
      from their own account.  The former is said  to  be  forgery  and  the
      latter is said to be mis-appropriation of funds and breach of trust.


      9.    Having given our anxious consideration to the dispute,  we  find
      that none of the aforesaid circumstances can lead to an  inference  of
      commission of an offence under the IPC at any rate none of the offence
      alleged.  As far as the website is concerned, though undoubtedly, Devi
      Consultancy Services (DCS) is mentioned,  it  is  made  clear  in  the
      website itself that DCS is a part of  Devi  Polymers  Private  Limited
      which is apparent from  a  link  which  shows  Devi  Polymers  Private
      Limited, in the website itself, are shown  as  Devi  Polymers  Private
      Limited, the main Company and Devi Consultancy Services  as  a  sister
      Company.  Similarly, in the website of Devi Polymers Private  Limited,
      which was moved by the consultant, there is a link  which  shows  that
      Devi Consultancy Services is a sister concern and it  is  stated  that
      viewers may visit that site. The address of Devi Consultancy  Services
      is shown to be the same address  as  that  of  Devi  Polymers  Private
      Limited.  We are satisfied that there  is  no  attempt  whatsoever  to
      project the Devi Consultancy Services as a concern or a Company  which
      is independent and separate from Devi  Polymers  Private  Limited,  to
      which both the parties belong. In any case it is not possible to  view
      the act as an act of forgery.


      10.   It might have been possible to attribute some   criminal  intent
      to the projection of the Unit C as Devi Consultancy  Services  in  the
      website, if as a result of such projection, the appellant had received
      any amounts separate from the Devi Polymers  Private  Limited,  but  a
      perusal of the complaint shows that this is  not  so.   Not  a  single
      rupee has been received by the appellant  in  his  own  name  or  even
      separately in the name of Unit C, which he is  heading.   All  amounts
      have been received by Devi Polymers Private Limited.


      11.   Section 463 of the Indian Penal Code defines forgery which reads
      as follows:-
                 “463. Forgery.— Whoever makes any false documents or  false
         electronic record or part of a document or electronic record, with
         intent to cause damage or injury, to the public or to any  person,
         or to support any claim or title, or to cause any person  to  part
         with property, or to enter into any express or  implied  contract,
         or with intent to commit fraud or that  fraud  may  be  committed,
         commits forgery.”


      12.   It is not possible to view the contents of the  website  showing
      the Devi Consultancy Services as a concern which is separate from Devi
      Polymers Private Limited in  view  of  the  contents  of  the  website
      described above.  Moreover, it is not possible to impute any intent to
      cause damage or injury  or  to  enter  into  any  express  or  implied
      contract or any intent to commit fraud  in  the  making  of  the  said
      website.  The appellant has not committed any act which fits the above
      description.  Admittedly, he has not received a single  rupee  or  nor
      has he entered into any contract in his own name on the basis  of  the
      above website.
      13.   Section 468 of the IPC reads as follows:-
                       “468. Forgery for  purpose  of  cheating  —  Whoever
              commits forgery, intending that the  document  or  electronic
              record forged shall be used  for  the  purpose  of  cheating,
              shall be punished with imprisonment of either description for
              a term which may extend to seven years,  and  shall  also  be
              liable to fine.”


      14.   In the absence of any act in pursuance of the website  by  which
      he has deceived any person fraudulently or  dishonestly,  induced  any
      one to deliver any property to any person, we  find  that  it  is  not
      possible to attribute any intention of cheating which is  a  necessary
      ingredient for the offence under Section 468.


      15.   We find that the allegations that the appellant is guilty of  an
      offence under the aforesaid  section  are  inherently  improbable  and
      there is no sufficient ground of proceedings against the accused.  The
      proceedings have been initiated against the appellant as a part of  an
      ongoing dispute between the parties and seem to be due  to  a  private
      and personal grudge.


      16.  In State of Haryana and Ors. v. Bhajan Lal and Ors.  reported  in
      1992 Supp(1) SCC 335, this Court laid down  the  following  guidelines
      where the power under Section 482 should be exercised.  They are:-
                  “102. In the backdrop of the interpretation of the various
          relevant provisions of the Code  under  Chapter  XIV  and  of  the
          principles of  law  enunciated  by  this  Court  in  a  series  of
          decisions relating to the  exercise  of  the  extraordinary  power
          under Article 226 or the inherent powers under Section 482 of  the
          Code which we have extracted and reproduced  above,  we  give  the
          following categories of cases by way of illustration wherein  such
          power could be exercised either to prevent abuse of the process of
          any court or otherwise to secure the ends of  justice,  though  it
          may not be possible to lay down any precise, clearly  defined  and
          sufficiently  channelised  and  inflexible  guidelines  or   rigid
          formulae and to give an exhaustive list of myriad kinds  of  cases
          wherein such power should be exercised.
              (1) Where the  allegations  made  in  the  first  information
              report or the complaint, even if they are taken at their face
              value and accepted in  their  entirety  do  not  prima  facie
              constitute any  offence  or  make  out  a  case  against  the
              accused.
              (2) Where the allegations in the first information report and
              other materials, if any, accompanying the FIR do not disclose
              a cognizable offence, justifying an investigation  by  police
              officers under Section 156(1) of the  Code  except  under  an
              order of a Magistrate within the purview of Section 155(2) of
              the Code.
              (3) Where the uncontroverted allegations made in the  FIR  or
              complaint and the evidence collected in support of  the  same
              do not disclose the commission of any offence and make out  a
              case against the accused.
              (4) Where, the allegations in the FIR  do  not  constitute  a
              cognizable  offence  but  constitute  only  a  non-cognizable
              offence, no investigation is permitted by  a  police  officer
              without an  order  of  a  Magistrate  as  contemplated  under
              Section 155(2) of the Code.
              (5) Where the allegations made in the FIR or complaint are so
              absurd and inherently improbable on the  basis  of  which  no
              prudent person can ever reach a just conclusion that there is
              sufficient ground for proceeding against the accused.
              (6) Where there is an express legal bar engrafted in  any  of
              the provisions of the Code or the concerned Act (under  which
              a criminal proceeding is instituted) to the  institution  and
              continuance of  the  proceedings  and/or  where  there  is  a
              specific  provision  in  the  Code  or  the  concerned   Act,
              providing  efficacious  redress  for  the  grievance  of  the
              aggrieved party.
              (7) Where a criminal proceeding is manifestly  attended  with
              mala  fide  and/or  where  the  proceeding   is   maliciously
              instituted with an ulterior motive for wreaking vengeance  on
              the accused and with a view to spite him due to  private  and
              personal grudge.”



      We find that the High Court ought to have exercised  its  power  under
      Clause (1), (3) and (5) of the above said judgment.


      17.    In  Madhavrao  Jiwajirao  Scindia  and  Ors.   v.   Sambhajirao
      Chandrojirao Angre and Ors., reported in (1988) 1 SCC 692, this  Court
      observed as follows:-
                 “7.  The  legal  position  is  well  settled  that  when  a
          prosecution at the initial stage is asked to be quashed, the  test
          to be applied by the court is as  to  whether  the  uncontroverted
          allegations as made prima facie establish the offence. It is  also
          for the court to take  into  consideration  any  special  features
          which appear in a  particular  case  to  consider  whether  it  is
          expedient and in the interest of justice to permit  a  prosecution
          to continue. This is so on the basis  that  the  court  cannot  be
          utilised for any oblique purpose and where in the opinion  of  the
          court chances of an ultimate conviction are bleak and,  therefore,
          no useful purpose is likely to be served by  allowing  a  criminal
          prosecution  to  continue,  the  court  may  while   taking   into
          consideration  the  special  facts  of  a  case  also  quash   the
          proceeding even though it may be at a preliminary stage.”


      18.   This Court in Janata Dal v. H.S. Chowdhary and Ors., reported in
      (1992) 4 SCC 305, observed as follows:-
                 “132. The criminal courts are clothed with  inherent  power
            to make such orders as may be necessary for the ends of justice.
            Such power though  unrestricted  and  undefined  should  not  be
            capriciously or arbitrarily exercised, but should  be  exercised
            in appropriate  cases,  ex  debito  justitiae  to  do  real  and
            substantial justice for the administration of  which  alone  the
            courts exist. The powers  possessed  by  the  High  Court  under
            Section 482 of the Code are very wide and the very plenitude  of
            the power requires great caution in its exercise. Courts must be
            careful to see that its decision in exercise of  this  power  is
            based on sound principles.”


      We reiterate the same caution having found that this is an appropriate
      case for the exercise of such powers.


      19.   The entire law on the subjects was reviewed by  a  three  Judges
      Bench of this Court in Inder  Mohan  Goswami  and  Anr.  v.  State  of
      Uttaranchal and Ors., reported in (2007) 12 SCC 1 vide  paragraphs  23
      to 39.  Thereafter, the law was reiterated in R. Kalyani v.  Janak  C.
      Mehta and Ors. reported in (2009) 1 SCC 516 vide paragraphs 15 and 16.


      20.   In all the cases the principle that the accused must be relieved
      from the prosecution, even if the allegations are taken at their  face
      value and accepted in their entirety do not constitute any offence has
      been upheld, and thereafter in Umesh Kumar v. State of Andhra  Pradesh
      and anr., reported in (2013) 10 SCC 591.


      21.   As regards the commission  of  offences  under  the  Information
      Technology Act, 2000 the allegations are that the appellant had,  with
      fraudulent and dishonest intention on the website of Devi  Consultancy
      Services i.e. www.devidcs.com that the former is a sister  concern  of
      Devi  Polymers.   Further,  that  this  amounts  to   creating   false
      electronic record.  In view of the  finding  above  we  find  that  no
      offence is made out under Section  66  of  the  I.T.  Act,  read  with
      Section 43.  The appellant was a Director of Devi Polymers and nothing
      is brought on record to show that he did not  have  any  authority  to
      access the computer system or the computer  network  of  the  company.
      That apart there is nothing  on  record  to  show  the  commission  of
      offence under Section 65 of the I.T. Act, since the allegation is  not
      that any  computer  source  code  has  been  concealed,  destroyed  or
      altered.  We have already observed that the acts of the appellant  did
      not have any dishonest intention while considering the allegations  in
      respect of the other offences.  In the circumstances, no case is  made
      out under Sections 65 and 66 of the I.T. Act, 2000.


      22.   The High Court seems to have over looked these circumstances and
      has merely dismissed the petition under Section 482  of  the  Criminal
      Procedure Code on the ground that it requires evidence at a  trial  to
      come  to  any  conclusion.   We,  however,  find  that  the   criminal
      proceedings initiated by the respondent constitute an abuse of process
      of Court and it is necessary to meet the ends of justice to quash  the
      prosecution against the appellant.


      23.   Accordingly, the appeal succeeds. The prosecution is quashed.




                            ........................J.
                                               (S.A. BOBDE)






                                     ........................J.
                                                      (AMITAVA ROY)


      New Delhi,
      April 19,2016

the absence of visible injury on the body per se does not militate against the otherwise unambiguous medical opinion that the death was due to asphyxia. Breaking of bronchial tube is understandably a finding in endorsement of the above cause of death. Absence of visible injuries on the dead body, therefore as such, does not cast any doubt about the homicidal death of Jagram. This is also authenticated by the medical opinion that death had occurred between 12.6.1996 and 15.6.1996, i.e. during the interval between the abduction of the deceased and the detection of his dead body. “This lays down the general rule that in a criminal case the burden of proof is on the prosecution and Section 106 is certainly not intended to relive it of that duty. On the contrary, it is designed to meet certain exceptional cases in which it would be impossible, or at any rate disproportionately difficult for the prosecution to establish facts which are ‘especially’ within the knowledge of the accused and which he could prove without difficulty or inconvenience. The word ‘especially’ stresses that it means facts that are pre-eminently or exceptionally within his knowledge.”

                                                              NON-REPORTABLE

              IN  THE  SUPREME  COURT  OF  INDIA         CRIMINAL  APPELLATE
JURISDICTION

               CRIMINAL APPEAL NO. 365 OF 2013

CHAMAN AND ANOTHER                      …APPELLANTS

            VERSUS

STATE OF UTTRAKHAND                         …RESPONDENT
                     WITH
CRIMINAL APPEAL NO. 597 OF 2013

                       J U D G M E N T

AMITAVA ROY, J.

          The  appeals  assail  the  judgment  and  order  dated  11.6.2012,
rendered by the High Court of Uttrakhand, Nainital in  Criminal  Appeal  No.
111 of 2004, affirming the  conviction  of  the  appellants  under  Sections
302,364 r/w 34 IPC.  For the offence under Section  302  r/w   34  IPC,  the
appellants have been sentenced to undergo imprisonment for life and fine  of
Rs. 5000/- each and for the offence under Section 364 r/w 34 IPC, they  have
been sentenced to suffer rigorous imprisonment  for seven  years  and   fine
of Rs. 5000/- each.  Sentence of imprisonment in default of  fine  has  also
been awarded.  The trial court had convicted and  sentenced  the  appellants
in identical terms.

      2.    We have heard Mr. V. Shekhar, learned  senior  counsel  for  the
appellants – Chaman and Sukhbeer in Criminal Appeal No.  365  of  2013,  Mr.
P.K. Dey, learned counsel for  the  appellant  –  Rakesh  Kumar  @  Mota  in
Criminal Appeal No. 597 of 2013  and  Mr.  Jatinder  Kumar  Bhatia,  learned
counsel for the State.

3.  The genesis of the prosecution case is traceable to the  F.I.R.   lodged
on 12.6.1996 by Rajo Devi, widow of the deceased Jagram,  addressed  to  the
Station In-charge, Police Station Cleamantown,  Dehradun.   She  alleged  in
the FIR that prior to the date of incident i.e.  12.6.1996,  the  appellants
Chaman, Rakesh @ Mota and Sukhbeer along with two  associates  had  come  to
their residence in search of her son Vinod, who they  alleged  was  involved
in the murder of the son of Chaman.  As Vinod was not available there,  they
went back.  They returned on the date of the  incident  at  about  11  A.M.,
when she along with her husband and daughters Bina and  Manju  were  present
in the house.  The appellants again enquired about Vinod and as he  was  not
present in the house, they took away her  husband  Jagram  with  them.   The
informant stated that the appellants had come in a jeep bearing No.  UP  015
5330 and had forced her husband in the said jeep and  had  taken  him  away.
She expressed apprehension that due to  the  impression  of  the  appellants
that her son Vinod was involved in the murder of the  son  of  Chaman,  they
would eliminate her husband, Jagram.  She mentioned as well in the FIR  that
at the time of the incident, her daughters Bina and Manju raised alarm,  but
the people of the locality did not intervene.

4.    This information was registered as FIR No. 250 of 1996 and  in  course
of the investigation, on 15.6.1996 at  about  1400  hours,  one  Amar  Singh
informed the Police Station Chandpur, District  Bijnour  that  a  decomposed
dead body, 3/4 days old, had been detected in a  jungle  between  Cehla  and
Ismailpur.  This information was recorded and inquest of the dead  body  was
conducted  in  presence  of  panch  witnesses,  whereafter  the   body   was
dispatched for post-mortem examination.  At that stage, the  dead  body  was
unidentified.  It was found to  be  decomposed  with  maggots.   No  visible
injury was noticed on the dead body.  The appellant Chaman was  arrested  on
3.7.1996, who thereafter led the police to  the  jungle  at  Village  Cehla,
within the jurisdiction of P.S. Chandpur,  District  Bijnour  from  where  a
rope, as shown by him, was recovered from bamboo bushes.  According  to  the
prosecution, the appellant Chaman also showed to the police,  the  place  in
the jungle where Jagram had been killed by hanging him by that rope  from  a
tree.  The rope was seized vide recovery memo  and  the  site  plan  of  the
place of occurrence as indicated by the appellant Chaman, was prepared.

5.     The dead body, on the completion  of  inquest,  was  sealed  and  was
brought to the District Hospital, Bijnour for autopsy.  On the basis of  the
evidence  collected  in  the  course  of  investigation,  charge-sheet   was
submitted against the appellants – Chaman, Rakesh Kumar  @  Mota,  Sukhbeer,
Ghanshyam @ Bundu, Tofique and Ashok under Sections  302/364/201  IPC.   The
case being exclusively triable by the Court of  Sessions  was  committed  to
the Court of Additional Sessions Judge, Fast Track (IV),  Dehradun.   Charge
was framed under Sections  147,  201/302/364  r/w  149  IPC,  to  which  the
accused persons pleaded “not guilty” and claimed to be tried.

6.      The prosecution examined ten witnesses,  whereafter  the  statements
of the accused persons were recorded under  Section  313  Cr.P.C..   All  of
them stood by their denial in their statements.  On the  conclusion  of  the
trial, the trial court acquitted accused Ghanshyam,  Tofique  and  Ashok  of
all the charges.  It acquitted appellants as  well,  of  the  charges  under
Sections 147, 201 r/w 149 IPC but convicted  them,  under  Sections  302/364
r/w 34 IPC and sentenced them as above.

7.   The High Court, by the verdict  impugned,  affirmed  the  sentence  and
conviction recorded by the trial court.

 8.     Mr. Shekhar, learned senior counsel for the appellants-  Chaman  and
Sukhbeer has at the threshold dismissed  the  case  of  the  prosecution  as
motivated and concocted and to buttress this plea, has drawn  the  attention
of the Court to a letter  dated  15.4.1996,  addressed  by  one  Surender  @
Baniya, a detenue  in  District  Jail,  Bijnour  to  the  Superintendent  of
Police, Bijnour, U.P. hinting at a plot to kill, the  appellant  Chaman  who
is a witness in the case of the murder  of  his  son.   The  learned  senior
counsel sought to impress upon the court on  the  basis  of  this  document,
that the appellant Chaman in particular, was thus falsely implicated in  the
case of alleged abduction and murder of  Jagram.   Apart  from  emphatically
contending that there was an apparent confusion in  the  information  as  to
the type of the vehicle in which the appellants had visited her  house,  Mr.
Shekhar has endeavoured to discredit the prosecution case, for the  omission
to examine the scribe of the FIR, who admittedly had penned the same on  the
disclosures of the informant Rajo Devi.  According  to  the  learned  senior
counsel,  the  discrepancy  in  the  description  of  the   rope   allegedly
recovered, being led thereto by the appellant Chaman and  the  one  produced
in the court, did conclusively belie the prosecution case.

 9.     Mr. Shekhar laboured to emphasise that this anomaly  is  writ  large
from the testimony of PW4, Constable Nardev Singh who  identified  the  rope
produced in the court to  be  made  of  plastic  whereas  PW10  S.I.  Ramesh
Chander Sharma, the Investigation Officer in categorical terms, had  deposed
that the seized rope was made of jute and that it  was  not  a  nylon  rope.
Mr. Shekhar  further  urged,  that  admittedly  though  the  dead  body  was
decomposed and some portions of the abdomen and lower half were missing,  no
visible injury was noticed thereon and particularly on  the  neck  and  thus
the prosecution version of death by  asphyxia,  as  opined  by  the  doctor,
effected by the rope  recovered,  was  wholly  untrustworthy.   The  learned
senior counsel, while questioning the identification of the appellants,  has
also cast aside the prosecution case to be wholly improbable as well.

10.   While  generally  endorsing  the  above  contentions,  Mr.  P.K.  Dey,
learned counsel for the appellant Rakesh Kumar @ Mota, has  urged  that  the
FIR, lodged within 45 minutes of the incident, is too  prompt  in  point  of
time, having regard to the nature of  the  incident  complained  of  and  in
reality is ante timed to falsely implicate the appellant  –Rakesh  Kumar  in
the case. According to the learned counsel, not only  the  prosecution  case
is inherently unbelievable, in absence of any endeavour  whatsoever  by  the
family members to resist the  alleged  abduction  of  Jagram  and  the  non-
intervention of residents of the otherwise densely populated  neighbourhood,
the acquittal of the three co-accused, who  allegedly  had  accompanied  the
appellant, is destructive of the sub stratum of the prosecution case.   This
is more so, as the accused-appellant and their companions were unarmed.  Mr.
Dey has argued, that not only the discrepancy  in  the  description  of  the
rope recovered and produced in  the  court,  renders  the  prosecution  case
highly doubtful, in absence of identification  of  the  dead  body  and  any
perceptible  nexus  between  the  offence  of  murder  of  Jagram  and   the
appellants, their conviction, if sustained, would be a travesty of  justice.
The learned counsel underlined the contradictions in the statements of  PW6,
the Doctor and PW5-Rakesh  about the state of the body  before  the  autopsy
and also maintained that in absence of any evidence of coordination  between
the police stations at Dehradun and Bijnour over the detection of  the  dead
body, the despath thereof and its identification, the prosecution could  not
 establish that the dead body was that of Jagram.   Inviting  the  attention
of this Court to the evidence of PW5- Rakesh, the son of  the  deceased  who
stated  to have come to learn about the abduction of  his  father  4/5  days
prior to the recovery of the dead body, the  learned  counsel  has  insisted
that such a statement being a part of the  same  transaction  enfolding  the
alleged abduction of the deceased and recovery of the dead body, it  is  res
gestae and thus demolished the version in the FIR as well as  the  testimony
of the informant to that effect.  Mr. Dey has urged  as  well  that  as  the
factum of the identification of the dead body to be of Jagram,  as  made  by
his son PW5 Vinod, had not been put to the  appellants,  in  the  course  of
their statements under Section 313 Cr.P.C., this incriminating  circumstance
could not have been taken note of and acted upon in support of the charge.

11.   Per contra,  learned counsel for the State  has maintained  that   the
testimony of PW1–Rajo Devi, the informant, PW2- Manju, the daughter of   the
deceased, PW4 Constable Nardev Singh, the seizure witness of the  rope,  PW5
Rakesh, son of the deceased who identified the dead body, PW6 Dr. A.K.  Kaul
who had performed the post-mortem examination and PW10 S.I.  Ramesh  Chander
Sharma in particular has proved the charge  against  the  appellants  beyond
all reasonable doubt and thus the conviction and sentence   as  recorded  by
the trial  court  and  affirmed  by  the  High  Court  does  not  merit  any
interference.

12.      The learned  counsel  for  the  State  has  asserted  that  as  the
abduction of the deceased has been convincibly proved by PWs  1  and  2  and
that Jagram had met a homicidal death immediately thereafter,  there  was  a
rebuttable presumption of guilt against  the  appellants  and  as  they  had
failed to offer any explanation whatsoever, as to how they  had  dealt  with
Jagram while he was in their custody, their  conviction  is  sustainable  in
law and on facts.  He referred, in particular to Section 106 of  the  Indian
Evidence Act, 1872  to  reinforce  this  plea  and  also  relied  upon   the
decision of this Court in State of State of W.B. vs. Mir Mohammad  Omar  and
others, (2000) 8 SCC 382.

13.   The arguments advanced and the materials on record have  received  our
due  attention.   Concurrent  findings  of  facts,  notwithstanding,  having
regard to the conviction and sentence as recorded,  we  have  traversed  the
evidence available to the extent essential for the present adjudication.

14.   The facts narrated in the FIR dated 12.6.1996, in  our  estimate,  are
of sufficient clarity regarding the dual visits of  the  appellants  to  the
house of the deceased in search of his son Vinod.  The contents  thereof  do
not admit any doubt that the appellants along with two others had come in  a
jeep, the number whereof had been provided in the FIR, on the  date  of  the
incident at about 11 A.M. and had taken away with them the deceased,  father
of Vinod in presence of the informant- Rajo Devi,  his  daughters  Bina  and
Manju.  There is a clear averment that though  the  daughters  raised  alarm
and that the people of the locality were present, no body did  come  forward
to prevent the abduction.  The omission on the part of  the  people  in  the
neighbourhood to intervene per se, in our opinion,  does  not  detract  from
the truthfulness of the report made which admittedly had  been  done  within
the shortest possible time.  Though the FIR was  written by one H.S.  Verma,
  his non-examination as well is of no adverse bearing  on  the  prosecution
case.  The letter by Surender,  a  detenu  in  the  District  Jail,  Bijnour
hinting at the plot to kill Chaman also, in our  comprehension,  is  not  of
any definitive significance.

15.    PW1-Rajo Devi, in unequivocable terms, stated on  oath  that  on  the
date of the incident at 11 A.M.,  the  appellants  and  two  other  persons,
whose names were not known to her, had come in a car  with  curtains.   They
searched for her son Vinod and when he was not found,  they  picked  up  her
husband Jagram, pushed him in the car and took  him  away.   She  identified
the appellants and other accused persons in the court to be  the  kidnappers
of her husband.  She stated as well, in terms of the  FIR  filed,  that  the
appellants had visited her house 15 days prior  to the date of the  incident
looking for her son Vinod, disclosing it to her that they suspected that  he
was involved in the murder of the son of Chaman.  The witness  also  deposed
that thereafter she along with her two daughters Bina and Manju and  son-in-
law, had visited the Bijnour mortuary and had identified the  dead  body  of
her husband.

16.   PW2- Manju, daughter of the deceased testified in the  same  lines  as
of her mother.  She identified the appellants who along with two others  had
come in a car to their house on the date of the  incident.   She  reiterated
the purpose  of  the  visit  of  the  appellants  and  their  companions  as
disclosed by them and confirmed that they had similarly come to their  house
in search of Vinod 15 days prior to the date  of  incident.   She  mentioned
about the presence of her sister Veena in the  house  at  the  time  of  the
incident.  She was categorical  in  the  matter  of  identification  of  the
accused persons.

17.    PW4 Constable Nardev Singh  deposed that  the  appellant  Chaman  led
the police to recover the rope whereby Jagram was  hung from the  tree.   He
stated that the appellant Chaman not only identified the tree but  also  led
the police to the rope which was recovered from the  bush   in  the  jungle.
He identified the rope in  the  court  to  be  one  of  plastic.  In  cross-
examination, this witness clarified that the jungle  was not on  a  thorough
fare.  He stated that he was unaware  as  to  why  in  his  statement  under
Section 161 Cr.P.C., the recovered rope was described to be  a  “jute  rope”
(suthli).

18.      PW5 Rakesh, son of the deceased on oath deposed that he  recognized
the dead body of his father at District Hospital  Mortuary, Bijnour,   after
it was taken out from the sealed cloth before the  post-mortem  examination.
He stated that he came to know about 4/5 days before, that appellant  Chaman
had called his father and had taken him away.

19.    PW6 Dr. A.K. Kaul who had performed the autopsy, testified  that  the
dead body was then in an advanced stage of decomposition  and  maggots  were
present on it.  He stated that some body parts like middle stomach and  left
thigh were  missing and that  it  appeared  that  it  had  been  nibbled  by
animals.  He mentioned that  there was no  apparent  injuries  on  the  dead
body of the deceased but opined that the cause of death might  be  asphyxia.
He stated as well that there was no mark of rope on the body but added  that
bronchial tube was broken.  According to him,  death  had  occurred  between
12.6.1996 to 15.6.1996.

20.    PW7 Shakoor Khan was a witness to the recovery  and  inquest  of  the
dead body.  PW8 S.I.  Charan Singh had prepared the inquest  report  of  the
dead body.  PW9  Amar Singh had detected the dead body of an unknown  person
lying in the jungle between Cehla and Ismailpur.   The  dead  body  was  3/4
days old and he had informed of this fact in writing to the  Police  Station
Chandpur.

21.    PW10 S.I. Ramesh Chander Sharma, the Investigating  Officer  narrated
the steps taken by him in the course of investigation.  He stated about  the
recovery of the rope from the bamboo bushes  of  the  place  of  occurrence,
being led thereto by appellant Chaman and the preparation  of  the  memo  of
seizure thereof.  He admitted in his cross-examination that the  place  from
where the rope was recovered was accessible to all.  He mentioned  that  the
rope recovered was a jute rope and not a nylon rope.

22.   A perusal of the statements of  the  accused  persons  recorded  under
Section 313  Cr.P.C.  reveal  that  comprehensive  questions  pertaining  to
abduction and murder of Jagram by them, detection  of  his  decomposed  dead
body,  post-mortem  thereof  with  the  cause  of  death  and  the  recorded
statement  of  appellant  Chaman  leading  to  the  discovery  of  the  rope
involved, were put to them so as to fully enable them  to  explain  all  the
incriminating circumstances appearing against them in the  evidence  adduced
by the prosecution.

23.      An analytical evaluation of the materials on record does not  admit
of any doubt of the successive visits of the appellants on the  turn  of  15
days to the house of the deceased in search of  Vinod  whom  they  suspected
was involved in the murder of the son of the  appellant  Chaman.   There  is
nothing to disbelieve PWs 1 and 2 that the appellants, on the  date  of  the
incident, had come in a jeep and as they did not find Vinod  in  the  house,
they abducted  Jagram,  who  was  later  on  found  dead  within  3/4   days
therefrom in a nearby jungle.  Though the incident took place in  the  broad
day light and the daughters did raise alarm, the  mere  non-intervention  by
the persons in the locality, in our opinion, in the face  of  the  otherwise
overwhelming and consistent testimony of the mother and  the  daughter  does
not discredit the prosecution case.   Noticeably,  the  PWs  1  and  2  were
steadfast in the matter of identification of the three appellants, not  only
at the time of the incident but also  thereafter  in  court.   According  to
them,  the  appellants  were  of  the  village  Ismailpur  and  thus   their
identification was not difficult for them.  Admittedly the  FIR  was  lodged
with due promptness, thus obviating the possibility  of  any  embellishment.
To reiterate, non-examination of the scribe  of  FIR  does  not  render  the
prosecution case untrustworthy in the attendant facts and circumstances.

24.  The irrefutably proved circumstance  against  the  appellants  is  that
they had visited the house of the deceased twice within a  span  of  fifteen
days, on each occasion in search of his son  Vinod  and  ultimately  on  the
date of the incident    had forcibly taken him away, only thereafter  to  be
found to have died a homicidal death in an unnatural setting.  The  fact  of
recovery of  the  rope,  being  led  thereto  by  the  appellant  Chaman  is
admissible in evidence against the appellants.  The  discrepancy  about  the
texture of the rope, the seizure thereof having otherwise  been  proved,  is
not of much significance.  PW4 Constable Nardev Singh,  who  was  associated
with the procedure of seizure of the rope had identified  the  same  in  the
court.   In  our  opinion,  nothing  much  turns  on  the  mismatch  in  the
description thereof as has been sought to be emphasised on the basis of  his
statement to this effect under Section 161 Cr.P.C.  The dead body  has  been
identified by the informant wife in presence of her daughters  and  sons-in-
law as well as the son PW5 as is evident from the evidence on record.

25.     The motive for the offence is also discernible in the facts of  this
case and for that matter, from the disclosures made by  the  appellants  for
their visits in search of Vinod, who they  believed,  was  involved  in  the
murder of the son of the appellant Chaman.  The pleas based  on  res  gestae
and the perceived omission to bring to the notice  of  the  appellants,  the
factum of identification of the dead body, in the face  of  the  consistent,
cogent and coherent evidence on record, do not commend for  acceptance.  The
statement of PW2 that he came to know about the  abduction  after  4/5  days
can by no means be  one  in  course  of  the  transaction  encompassing  the
incident to attract the doctrine of res gestae.

26.    Significantly, the proved  abduction of the deceased from  his  house
by the appellants is per se a criminal offence and carries with it   a  much
higher degree of sinister culpability compared to any phenomenon  of   “last
seen together”, simpliciter.  Further the deceased being in the  custody  of
the appellants after  his  abduction  on  12.6.1996,  it  was  within  their
special knowledge as to how he  had  been  dealt  with  by  them  thereafter
before his dead body was found in a decomposed state  in  a  nearby  jungle.
No  explanation  is  forthcoming  in  any  form  in  this  regard  from  the
appellants.

27.   This Court in State of West Bengal (supra) in a somewhat similar  fact
situation, where the deceased  was  abducted  by  the  accused  persons  and
thereafter his mangled body was found, held that the pristine rule that  the
burden of proof is on the prosecution to prove  the  guilt  of  the  accused
should not be taken as a fossilised doctrine as if it  admits of no  process
of  intelligent  reasoning.   It  was  enunciated  that  the   doctrine   of
presumption is not alien to the above rule, nor would it impair  the  temper
of the rule qua the purport of presumption of fact as a rule in the  law  of
evidence.  It was observed thus:

“Presumption of fact is an inference as to the existence of  one  fact  from
the existence of some other facts, unless the truth  of  such  inference  is
disproved. Presumption of fact is a rule in law  of  evidence  that  a  fact
otherwise doubtful may be inferred from certain  other  proved  facts.  When
inferring the existence of a fact from other set of proved facts, the  court
exercises a process of reasoning and reaches a  logical  conclusion  as  the
most  probable  position.  The  above  principle  has   gained   legislative
recognition in India when Section 114 is incorporated in the  Evidence  Act.
It empowers the court to presume the existence of any fact which  it  thinks
likely to have happened. In that process the court shall have regard to  the
common course of natural events, human  conduct  etc.  in  relation  to  the
facts of the case.”

28.    Adverting to the facts, this Court ruled that as the prosecution  had
succeeded in establishing  that  the  deceased  had  been  abducted  by  the
accused, they alone knew what happened to him until he was with them and  if
he was found murdered in a short time, after the  abduction,  the  permitted
reasoning process would enable the court to draw the  presumption  that  the
accused  had  murdered  him.   It  was  held  that  such  inference  can  be
disrupted, if the  accused would tell the Court what else  had  happened  to
the deceased at least until he was in their custody.

29.  Referring to Section 106 of the Evidence Act, it  was  propounded  that
the said section was not intended to relieve  the prosecution of its  burden
to prove the guilt of the accused beyond reasonable doubt, but would   apply
to cases where prosecution had succeeded  in  proving  facts  from  which  a
reasonable inference could be drawn  regarding   the  existence  of  certain
other facts,  unless  the  accused,  by  virtue  of  his  special  knowledge
regarding such facts, succeed to offer any explanation, to  drive the  court
to draw a different inference.

30.       The following observations by this Court in the context  of  above
legal provision in Shambhu Nath Mehra vs. State of Ajmer  AIR  1956  SC  404
was adverted to with approval.

“This lays down the general rule that in  a  criminal  case  the  burden  of
proof is on the prosecution and Section 106 is  certainly  not  intended  to
relive it of that duty.  On the contrary, it is designed   to  meet  certain
exceptional  cases  in  which  it  would  be  impossible,  or  at  any  rate
disproportionately difficult for the prosecution to  establish  facts  which
are ‘especially’ within the knowledge of the  accused  and  which  he  could
prove without difficulty or inconvenience. The  word  ‘especially’  stresses
that it means facts that  are  pre-eminently  or  exceptionally  within  his
knowledge.”



31.   Proof beyond reasonable doubt, as has  been  held  in  a  plethora  of
decisions of this Court, is only a guideline  and  not  a  fetish  and  that
someone, who is guilty, cannot get away with  impunity  only  because  truth
may suffer some infirmity when projected  through  human  processes  as  has
been  observed  in  Inder  Singh  and   another   vs.   The   State   (Delhi
Administration) (1978)4SCC161. A caveat  against   exaggerated  devotion  to
the rule of benefit  of  doubt  to  nurture  fanciful  doubts  or  lingering
suspicion  so as to destroy social defence has been sounded  by  this  Court
in Gurbachan Singh vs. Satpal Singh and others (1990)1SCC 445.  It has  been
propounded that reasonable doubt is simply that degree of doubt which  would
permit a reasonable and a just man to come to a  conclusion.   It  has  been
underlined therein that reasonableness of doubt must be commensurate to  the
nature of the offence to be investigated.

32.    Judged  by  the  above  touchstone  of  reasonableness  of  doubt  in
evaluating the facts and circumstances of the present case, we are clear  in
our mind that the complicity of the appellants in the  offences  with  which
they have been charged, has been convincingly  proved as  required  in  law.


33.      It is patent from the evidence of the doctor conducting  the  post-
mortem examination that the cause of death is  asphyxia.   PW6  –  Dr.  A.K.
Kaul has indicated as well in his statement on oath that the bronchial  tube
of the deceased was broken.   Having regard to the decomposed state  of  the
dead body, at the time when the post-mortem was conducted,  the  absence  of
visible injury on the body per se does not militate  against  the  otherwise
unambiguous medical opinion that the death was due  to  asphyxia.   Breaking
of bronchial tube is understandably  a finding in endorsement of  the  above
cause of death.   Absence of visible injuries on the  dead  body,  therefore
as such, does not  cast any doubt  about  the  homicidal  death  of  Jagram.
This is also authenticated by the medical opinion that  death  had  occurred
between 12.6.1996 and  15.6.1996,  i.e.  during  the  interval  between  the
abduction of the deceased and the detection of his dead body.

34.    On a anxious consideration of the entire gamut of the  facts  of  the
case  and the principles of law evolved, we are,  thus   of  the  unhesitant
opinion that  the concurrent convictions and the  sentences  based  thereon,
as recorded by the trial court and  the  High  Court,  do  not  warrant  any
interference in the present appeals.  The appeals are, thus dismissed.

……..……………………..….J.
                                  (S.A. BOBDE)


……..……………………..….J.
NEW DELHI                    (AMITAVA ROY)
APRIL 19, 2016.

It is a settled principle of law that jurisdiction of Court under Section 11 of the Act is limited and confine to examine as to whether there is an arbitration agreement between the contracting parties and, if so, whether any dispute has arisen between them out of such agreement which may call for appointment of arbitrator to decide such disputes. Once it is held that disputes had arisen between the parties in relation to agreement which contained an arbitration clause for resolving such disputes, the Court should have made reference to the arbitrator leaving the parties to approach the arbitrator with their claim and counter- claim to enable the arbitrator to decide all such disputes on the basis of case set up by the parties before him. In this case, we find that the learned Single Judge did exceed his jurisdiction on this issue and hence interference to this extent is called for.

                                                              Non-Reportable
                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                        CIVIL APPEAL NO.4095 OF 2016
                    (ARISING OUT OF SLP(C) NO.10868/2016)
                          (@ SLP(C)…..CC 6652/2016)



      Rajesh Verma                                 Appellant(s)


                             VERSUS


      Ashwani Kumar Khanna                   Respondent(s)



                               J U D G M E N T


Abhay Manohar Sapre, J.
1)    Delay in filing special leave petition is condoned. Leave granted.
2)    This appeal is filed against the final judgment and order of the  High
Court of Delhi at New Delhi dated 03.12.2015 and 19.02.2016  in  Arbitration
Petition No. 434 of 2015 and I.A. No. 754 of 2016  in  Arbitration  Petition
No. 434 of 2015 respectively whereby the learned Single Judge  of  the  High
Court allowed Arbitration Petition No. 434 of 2015 and  dismissed  I.A.  No.
754 of 2016 in Arbitration Petition No. 434 of 2015 seeking  change  of  the
named arbitrator.
3)    In order to appreciate the short issue involved in the appeal,  it  is
necessary to state few relevant facts.
4)    The appellant is an owner/landlord of the shop  measuring  153.58  sq.
feet situated at 1729,  Gali No. 5,  Govind  Puri  Extension,  Kalkaji,  New
Delhi-110019 whereas the respondent was the appellant's tenant of  the  shop
in question at a monthly rent of Rs.175/-  since July 1977.
5)    On 31.10.2014, the  appellant  and  the  respondent  claimed  to  have
entered into an  agreement  whereby  it  was  inter  alia  agreed  that  the
appellant on respondent's vacating the shop  would  demolish  the  shop  and
construct the new one in its place on or before  31.03.2015  and  then  sell
the new shop to the respondent for a total consideration of  Rs.42,00,000/-.
The agreement further stipulated that the  respondent  has  paid  a  sum  of
Rs.32,00,000/-  by way of advance to the appellant in cash towards the  sale
consideration and balance amount of Rs.10,00,000/- was to  be  paid  by  the
respondent to the appellant at the time  of  execution  of  the  sale  deed.
Clause  14  of  the  agreement  contained  arbitration  clause  for   making
reference to the sole  arbitrator  in  the  event  of  any  dispute  arising
between the parties in relation to the agreement in question.
6)    The disputes arose between the parties in relation  to  implementation
of the terms of the agreement, which led  to  exchange  of  notices  between
them by making allegations and counter  allegations  by  both  against  each
other regarding committing of breaches of  the  agreement.  Eventually,  the
respondent  (tenant)  filed  an  arbitration  petition   being   Arbitration
Petition  No.  434  of  2015  under  Section  11  of  the  Arbitration   and
Conciliation Act, 1996 (hereinafter referred to as  “the  Act”)  before  the
Delhi High Court (Single Judge) out of  which  this  appeal  arises  praying
therein for appointment of sole arbitrator for resolving the disputes  which
had arisen between them. It was inter alia alleged that since Clause  14  of
the agreement provided for appointment of sole arbitrator for  deciding  the
disputes arising out of the agreement between the parties and when  disputes
have arisen between  them,  the  matter  should  be  referred  to  the  sole
arbitrator for his decision as provided in the  agreement.  The  arbitration
petition was contested by the appellant  (owner/landlord)  as  non-applicant
by denying the allegations made  in  the  petition.   However,  the  learned
Single Judge by order dated 03.12.2015 allowed the  petition  and  appointed
one Shri Ashok Chhabra, Advocate as sole arbitrator to decide the  disputes.
It is against this order of the learned  Single  Judge,  the  owner/landlord
has filed this special leave to appeal.
7)    Heard Mr. Praveen Chaturvedi, learned counsel for  the  appellant  and
Mr. Vivek Sharma, learned counsel for the respondent.
8)    Mr. Praveen Chaturvedi,  learned counsel for the appellant, urged  two
points in support of his submission. In the first place, he urged  that  the
learned Single Judge while allowing the petition exceeded  his  jurisdiction
under Section 11 of the Act because he virtually  proceeded  to  decide  the
main disputes itself by recording findings on such issues in Paras 9 and  10
of the impugned order. It was his submission that the findings  recorded  in
Paras 9 and 10 and all such observations made in the impugned  order,  which
touched the merits of the  controversy,  should,  therefore,  be  set  aside
leaving the arbitrator to decide all such disputes in  accordance  with  law
in arbitration proceedings on its merits depending upon the stand  taken  by
the parties before the arbitrator.
9)    His second  submission  was  that  the  learned  Single  Judge  having
allowed the petition should have sought party’s consent for  nominating  the
arbitrator and in any case, according to learned counsel, any retired  judge
would have been more preferable for appointment to act as an  arbitrator  in
place of any lawyer.
10)   Learned counsel for the respondent, however,  supported  the  impugned
order and urged that no interference is called for in the impugned order.
11)   Having heard the learned counsel for the parties  and  on  perusal  of
the record of the case, we find some  force  in  the  submissions  urged  by
learned counsel for the appellant.
12)   We have perused the impugned order and find that in Paras  9  and  10,
the learned Single Judge has elaborately discussed the issues  touching  the
merits of the controversy relating  to  the  agreement.  In  our  considered
opinion, a discussion much less with such elaboration on factual issues  was
wholly uncalled for and should not  have  been  made.  Indeed,  it  was  not
necessary for the learned Single Judge  to  have  recorded  any  finding  on
merits while making reference to the arbitrator  under  Section  11  of  the
Act.
13)   It is a settled principle of law  that  jurisdiction  of  Court  under
Section 11 of the Act is limited and confine to examine as to whether  there
is an arbitration agreement between the  contracting  parties  and,  if  so,
whether any dispute has arisen between them out of such agreement which  may
call for appointment of arbitrator to decide such disputes.
14)   Once it is held that  disputes  had  arisen  between  the  parties  in
relation to agreement which contained an arbitration  clause  for  resolving
such disputes, the Court  should  have  made  reference  to  the  arbitrator
leaving the parties to approach the arbitrator with their claim and counter-
claim to enable the arbitrator to decide all such disputes on the  basis  of
case set up by the parties before him.  In  this  case,  we  find  that  the
learned Single Judge did exceed his jurisdiction on  this  issue  and  hence
interference to this extent is called for.
15)   We, accordingly,  observe  that  the  arbitrator  while  deciding  the
disputes between the parties in arbitration proceedings would  not,  in  any
manner, be influenced by any  finding,  observations  made  by  the  learned
Single Judge in the impugned order and nor would make any reference  of  the
findings while deciding the case.
16)   Now so far as the appointment of sole arbitrator made by  the  learned
Single Judge is concerned, in view  of  the  reservation  expressed  by  the
appellant regarding the choice of an advocate arbitrator by the High  Court,
we feel that it is just and proper that a retired Judge should be  appointed
in his place as an arbitrator to resolve the disputes.
17)   We, accordingly, appoint Shri Justice M.L. Mehta (Rtd.)  as  the  sole
arbitrator to decide the disputes, which have arisen between the parties  in
relation to the agreement in question. The arbitrator would  be  at  liberty
to settle the terms for deciding the dispute such as fees and expenses etc.
18)    Needless  to  say,   the   arbitration   proceedings   be   completed
expeditiously.
19)   In the light of foregoing  discussion,  the  appeal  succeeds  and  is
allowed in part. Impugned order is modified to the extent  indicated  above.



.……...................................J.
                                     [J. CHELAMESWAR]


                     ………..................................J.
                                      [ABHAY MANOHAR SAPRE]
      New Delhi,
      April 19, 2016.
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