No remand in insolvency case = no ingredients of Order 41, Rules 23, 23-A or 25 of the Code have been attracted in the present case. The impugned order of remand is, therefore, wholly unjustified. whether the petitioners herein are bona fide purchasers for valuable consideration and in paragraphs 15 and 16 of its order the said aspect has been discussed and a finding was reached that the sales are genuine for valuable consideration and the purchasers have, not only paid the consideration, but also made constructions on the petition ‘A’ schedule property.-the insolvency petition is not maintainable under Order 30, Rule 1 of the Civil Procedure Code (for short “the Code”) and in my view what all the Order 30 of the Code is that a firm, though not a legal person, can be sued in the name of the firm. The requirement of all the partners suing the insolvency petition may not arise.

THE HON’BLE SRI  JUSTICE VILAS V. AFZULPURKAR

CRP NO. 3482 OF 2008

Date of Judgment:  1.3.2011

Between:

Kankanwar Govinda Rao and another

…Petitioners

and

          Sri Manisha Financeris and another

..Respondents

THE HON’BLE SRI  JUSTICE VILAS V. AFZULPURKAR

CRP NO. 3482 OF 2008

ORDER: 

          Respondents 2 and 3 in IP No. 12 of 1998 (hereinafter referred to as “IP”) had successfully established before the Additional Senior Civil Judge, Nellore that they are bona fide purchasers and the said purchase is not with a view to defeat the creditors of the first respondent in IP. The said IP was dismissed with a finding that the transaction of purchase by the respondents 2 and 3 in IP under two sale deeds dated 2.5.1998, registered on 6.5.1998, are bona fide sales by the first respondent in IP. Since the IP was dismissed, an appeal was filed before the learned Prl. District Judge, Nellore in AS NO. 160 of 2005. The lower appellate Court has set aside the order of Insolvency Court and remitted the IP for fresh consideration. Aggrieved thereby, the respondents 2 and 3 in IP i.e., the purchasers from first respondent in IP, have preferred this revision.

Heard Mr. P. Sridhar Reddy, learned counsel for revision petitioners. Though the first respondent was served by substitute service as per the orders of this Court, nobody appears for him. The second respondent appears through a counsel, but he is the vendor of the revision petitioners and he is sailing and supporting the revision petitioners.

The contention of the learned counsel for the revision petitioners is that the lower appellate Court has set aside the order of the Insolvency Court without there being any proper adjudication and he, in fact, questions the necessity of remanding the matter, when there are clear findings by the Insolvency Court. The said contention appears to be justified in view of the fact that the Insolvency Court under point No.2 had considered the very same question as to whether the petitioners herein are bona fide purchasers for valuable consideration and in paragraphs 15 and 16 of its order the said aspect has been discussed and a finding was reached that the sales are genuine for valuable consideration and the purchasers have, not only paid the consideration, but also made constructions on the petition ‘A’ schedule property. The Insolvency Court also found that there is no collusion between the revision petitioners and the first respondent in IP. However, the lower appellate Court, while considering the appeal, has referred that, “there is no discussion or determination of the issue as to whether the transaction was with an intent to defeat or delay the creditor or body of creditors.”  This appears to be totally in correct in view of the findings reached by the Insolvency Court referred to above. Apparently the lower appellate court has remitted the IP for fresh consideration without noticing the findings reached by the Insolvency Court as referred to above.  That apart, no ingredients of Order 41, Rules 23, 23-A or 25 of the Code have been attracted in the present case. The impugned order of remand is, therefore, wholly unjustified.

I am also, prima facie, not impressed with the other aspect raised in the matter that the insolvency petition is not maintainable under Order 30, Rule 1 of the Civil Procedure Code (for short “the Code”) and in my view what all the Order 30 of the Code is that a firm, though not a legal person, can be sued in the name of the firm. The requirement of all the partners suing the insolvency petition may not arise. However, that defect now does not stand subsisting in view of the fact that in the appeal the other partner has been impleaded.

The revision petition is allowed, the impugned order is set aside and the appeal shall stand restored to the file of the learned Prl. District Judge, Nellore. The learned Judge shall hear and decide the appeal on merits and dispose of the same expeditiously. No costs.

_________________________

VILAS V. AFZULPURKAR, J

Dt. 1.3.2011

KR   

only male apart from PW- 1 Tarak, the father of the deceased, who was present on the fateful night with deceased Pampa in their house was the appellant. The house was locked from inside. Therefore, we have no hesitation in confirming the concurrent findings recorded by the trial court and the High Court on minute examination of the evidence that it is the appellant who was responsible for the rape and murder of deceased Pampa. The accused did not run away from the scene of offence. We find no substance in this submission. In the facts of this case, if the appellant had ran away, that would have, in fact, weakened his case and strengthened the prosecution case. The decision to remain at the spot appears to be a calculated one. In the circumstances, we are of the opinion that the prosecution has established its case beyond reasonable doubt. There is no merit in the case. 14. The appeal is dismissed.

NON-REPORTABLE

                        IN THE SUPREME COURT OF INDIA

                       CRIMINAL APPELLATE JURISDICTION

                       CRIMINAL APPEAL NO.1591 OF 2007


KASHINATH MONDAL             …           APPELLANT

           Vs.

STATE OF WEST BENGAL         …           RESPONDENT



                                  JUDGMENT

(SMT.) RANJANA PRAKASH DESAI, J.

1.    The appellant – Kashinath Mondal was tried by the Additional  Sessions
Judge, Arambagh, Hooghly in S.T. Case No.66 of 2000 for offences  punishable
under Sections 376 and 302 of the Indian Penal Code (for short, “the  IPC”).
  Learned Sessions Judge convicted the appellant under Sections 376  of  the
IPC and sentenced him to suffer RI for  10  years  and  to  pay  a  fine  of
Rs.5,000/-, in default, to suffer further RI for one  year.   The  appellant
has also been convicted under Section  302  of  the  IPC  and  sentenced  to
suffer RI for life and to pay a fine of Rs.10,000/-, in  default  to  suffer
RI  for  two  years.   The  substantive  sentences  are   ordered   to   run
concurrently.

2.    According to the prosecution, on the night of 30/10/1997,  complainant
- Tarak Chandra Mondal was sleeping in his house. His house has ground  plus
one floor.  There are two rooms on the first floor of the said  house.   Out
of the two rooms, one room was under the occupation of  the  appellant,  who
is his brother.   The adjacent northern room of the first  floor  was  under
the occupation of complainant’s daughters – Pampa  and  Sampa.   The  entire
ground floor premises were occupied by members of the  complainant’s  family
which includes his mother. The ground floor premises were enclosed  by  iron
grills.   On the night intervening 30/10/1997  and  31/10/1997,  Sampa,  the
second daughter of the complainant had gone  out  to  watch  a  video  show,
which was held very close to  the  complainant’s  house  to  celebrate  Kali
Pooja.  After departure of Sampa, the entrance gate was  closed  by  putting
padlock. One key each of the said padlock was retained  by  the  complainant
and his brother.  The eldest daughter of the complainant – Pampa  was  alone
in her room on the first floor.   The appellant was sleeping  in  his  room.
His wife had gone to her parent’s house.  It was not possible for anyone  to
enter or leave the house without unlocking the gate.

3.    At about 2.45 a.m., Sampa returned from the  video  show.  On  hearing
the call of  Sampa,  complainant’s  mother  opened  the  gate.   Sampa  then
straight away went to her room on  the  first  floor.   She  saw  her  elder
sister Pampa lying dead in a naked  condition  on  the  floor.  She  started
shouting.  On hearing her cries, the complainant and members of  his  family
rushed to the upper floor.  On seeing the dead  body  of  Pampa,  they  also
started shouting.    At that time, the appellant came  out  from  his  room,
which is situated adjacent to the room where the body of  Pampa  was  lying.
The neighbours of the complainant also came  to  the  place  of  occurrence.
Since at the relevant time, Pampa and the appellant were the only  occupants
of the first floor and since the exit doors of the house  were  locked  from
inside, the complainant firmly believed that the  heinous  crime  of  murder
and rape had been committed only by the appellant.   The  complainant,  then
lodged a written complaint before O.C., Khanakul  Police  Station.   In  the
complaint, the complainant disclosed that his  relations  with  his  brother
Kashinath i.e. the appellant were strained on account of  property  dispute.
He further stated that on a few occasions, quarrels had taken place  between
the appellant and his wife and  daughters  over  domestic  affairs  and  the
appellant had threatened them of dire consequences.

4.    On the basis of the said written complaint, police registered  a  case
under sections 376 and 302 of the  IPC  against  the  appellant  and,  after
completion of investigation, the appellant came to be charged as  aforesaid.
 The appellant denied the prosecution case.  He claimed to be tried.   After
completion of trial, learned Additional Sessions  Judge,  Hooghly  convicted
the appellant as aforesaid.  The  appeal  preferred  by  the  appellant  was
dismissed by the High Court.  Hence, this appeal.
5.    We have heard Mr. Ansar Ahmad  Chaudhary,  learned  counsel  appearing
for the appellant and Mr. Raja Chatterjee,  learned  counsel  appearing  for
the respondent.

6.    Mr. Ansar Ahmad Choudhary submitted that  learned  Sessions  Judge  as
well as the  High  Court  fell  into  a  serious  error  in  convicting  the
appellant.   Counsel  submitted  that  the   prosecution   case   rests   on
circumstantial evidence.  However, the  chain  of  circumstances,  does  not
point unerringly to the guilt of the appellant.  It cannot be said  that  no
other hypothesis but that of the guilt of the appellant is possible  on  the
basis of the evidence adduced by the prosecution.  Counsel pointed out  that
PW-2 Dr. Gokul Modak has, in his cross-examination, stated  that  it  cannot
be conclusively opined  in  the  absence  of  any  positive  report  of  the
chemical examiner that the victim was raped.  Therefore, the factum of  rape
is not proved.  Counsel pointed out that PW-5 Sri Kanta Khute, a  friend  of
the deceased has stated in his deposition that friends of the deceased  viz.
he, Sanju Mondal and Subhankar used to visit the deceased and  he  had  seen
the deceased at the  video  show  on  the  night  of  the  murder.   It  is,
therefore, possible that someone else entered the house of the deceased  and
murdered  her.   Counsel  submitted  that  the  conduct  of  the   appellant
militates against any possibility of his  involvement  in  the  crime.   The
appellant on hearing voices of people came to the spot of incident.   If  he
was guilty of murder, he would have run away from there.  Counsel  submitted
that the prosecution failed  to  obtain  finger  prints  from  the  site  of
offence.  In the absence of any clinching evidence, the appellant cannot  be
convicted for rape and  murder.   Counsel  submitted  that  admittedly,  the
relations between  the  appellant  and  the  family  of  the  deceased  were
strained on account of land dispute.  The  possibility  of  the  complainant
involving the appellant in a false case, therefore,  cannot  be  ruled  out.
Counsel submitted that in the circumstances, the appellant  deserves  to  be
acquitted.  In any case, benefit of doubt must be given  to  him.  Mr.  Raja
Chatterjee on the other hand supported the impugned judgment and order.

7.     Evidence of PW-1 Tarak Chandra Mondal, the complainant,  who  is  the
father of the deceased is very relevant.  According to him,  on  the  ground
floor of his house, there are two rooms.  Similarly, on the first  floor  of
his house, there are two  rooms.   He  stated  that  on  the  night  of  the
incident i.e. on 30/10/1997, he was sleeping in the room  on  southern  side
of  the ground floor along with his wife PW-14 Kanan and  youngest  daughter
Anita.  The room on the northern side of the ground floor  was  occupied  by
his mother PW-18 Sagarika Mondal.   He  stated  that  the  verandah  on  the
eastern side of ground floor was enclosed by iron grill fencing.   The  said
iron grill gate was locked on the night  in  question.   According  to  him,
verandah on the northern side of his house was  enclosed  by  wall  with  an
iron grill gate.  There are two grill gates on  the  eastern  verandah  each
fitted in front of the two rooms on the ground floor.  These two gates  were
locked on the night in question.  There is a similar verandah  in  front  of
the rooms on the first  floor.   Those  rooms  are  also  covered  by  grill
fencing.  The staircase on the northern side  of  the  house  leads  to  the
first floor verandah.  The northern room on the first floor was occupied  by
his two daughters viz. deceased Pampa and PW-17 Sampa.   The  southern  room
on the first floor was occupied by the appellant. The staircase  landing  on
the first floor is situated near the northern room, which  was  occupied  by
his two daughters.  The said staircase leads to the roof of the said  house.
 At the landing of the staircase on the roof, there is one grill gate.   The
said grill gate was locked at the  relevant  time.   The  situation  of  the
house and the description of the locking  arrangement  deposed  to  by  PW-1
Tarak Chandra Mondal  is  important  because  it  establishes  that  at  the
relevant time, when the offence is stated to have been  committed,  all  the
gates of the house were locked from inside.  It must  be  stated  here  that
this case of PW-1 Tarak Mondal is supported by his wife PW-14 Kanan  Mondal,
his second daughter PW-17 Sampa and his mother PW-18 Sagarika Mondal.   They
have stood the test of cross-examination very well.

8.    PW-1 Tarak Mondal further stated that in the night of 30/10/1997,  the
appellant alone was present in the southern room of  the  first  floor.  His
wife had gone to her father’s place.  A  video  show  was  arranged  on  the
occasion of Kalipuja near his house.  His second daughter  PW-17  Sampa  had
gone to the show and deceased Pampa was alone in her  room  situate  on  the
northern side of the first floor.  He further stated that  all  the  members
of his family had gone to bed at about 9.00 p.m.  At that time, he  saw  the
appellant going upstairs after locking the entrance gate.  At  about  12  O’
clock in the night, his wife woke him up and  told  him  that  some  unusual
sound was coming from upstairs.  He told her to  ignore  the  same  as  that
might be the sound of generator, which was  used  for  screening  the  video
show.  According to him, at about 2.30 p.m. PW-17 Sampa  returned  from  the
video show.   PW-18 Sagarika Mondal, the mother of  the  complainant  opened
the south-eastern gate.  PW-17 Sampa went upstairs and  raised  a  cry.   He
and his wife PW-14 Kanan and his mother PW-18 Sagarika rushed upstairs.   He
found deceased Pampa lying unconscious on her  back  on  the  floor  of  her
room. There were no clothes on the lower part of her person.  He  found  her
gamchha beneath her neck.  He also found marks  of  violence  on  her  neck.
According to him, he immediately went up and checked the gate on  the  roof.
He found that the gate was locked.  On hearing their  cries,  the  appellant
came out of his room.  On being questioned, the appellant who  was  fumbling
stated that he was not responsible for  this  mischief.   PW-1  Tarak  added
that his relations with the appellant were strained on account  of  property
dispute.  He has been cross-examined at length.  At the cost of  repetition,
it must be stated that his case that the house was  locked  from  inside  on
the night in question has remained undented.  Both the courts have  recorded
this finding and we find no difficulty in concurring with them.

9.    As rightly held by both the courts, this is  not  a  case  where  PW-1
Tarak can be accused of this ghastly crime.  He was sleeping on  the  ground
floor with his wife and he woke up only after Sampa  arrived.   Defence  has
also not come out with this case.  Evidence on record establishes  that,  at
the relevant time, apart from PW-1 Tarak and the appellant,  there  were  no
other males in the house and pertinently on the first  floor  of  the  house
where Pampa was found raped and murdered only  the  appellant  was  present.
Once it is held that the deceased and the appellant were  the  only  persons
on the first floor of the house and there was no possibility of anyone  else
entering the house prior to PW-17 Sampa’s arrival in  the  house,  the  only
conclusion which  can  be  drawn  is  that  it  is  the  appellant  who  was
responsible for Pampa’s murder.  This  conclusion  is  irresistible  and  is
supported by the admitted strained relationship between  the  appellant  and
the complainant’s family on account of property dispute.  It  is  true  that
there is no eye-witness to the offence.  But, what  persuades  us  to  agree
with the courts below is the fact that PW-18 Sagarika,  the  mother  of  the
appellant has deposed against him.  No mother  would  ever  falsely  involve
her son in such a ghastly crime.

10.   Assuming that the deceased had gone for the video show  as  stated  by
PW-5 Sri Kanta  Khute  that  has  no  relevance  to  the  prosecution  case.
According to PW-5 Sri Kanta Khute, he had seen the  deceased  at  the  video
show between 7.00 a.m. and 8.00 p.m.  It is significant to note that  except
this witness no other witness has stated so.   It  is  also  significant  to
note that PW-1 Tarak’s evidence indicates that on  the  fateful  night,  the
family had dinner; that Pampa went upstairs after  having  dinner;  that  he
saw the appellant going upstairs at about 9.00 p.m. and  that  all  of  them
went to sleep at about  9.00  p.m.  So  Pampa  was  at  home  at  9.00  p.m.
Moreover, the incident occurred late in the night.  This is clear  from  the
evidence of PW-1 Tarak Mondal and PW-14 Kanan.  PW-14 Kanan  has  stated  in
her evidence that she heard some unusual sound from the upper floor and  she
woke up her  husband  who  stated  that  the  sound  must  be  that  of  the
generator.  PW-1 Tarak Mondal has confirmed this.  The incident,  therefore,
took place at about 12 O’ clock in the night and, therefore, deceased  Pampa
being at the video show between 7.00 a.m. and 8.00 p.m., assuming it  to  be
true, has no adverse impact on the prosecution case.

11.   That death was homicidal  is  not  denied.  It  was  argued  that  the
commission of rape is not proved.  In this connection, it  is  necessary  to
have a look at the evidence of PW-2 Dr. Gokul Modak, who had  conducted  the
postmortem  of  deceased  Pampa.   PW-2  Dr.  Modak  has  stated   that   on
examination, he found the following injuries:

        a) 3 Nos. bruises of ¼” x ¼” of the anterior aspect of front of the
           neck.
        b) Bruised discoloration over flank and back of neck.
        c) Abrasions of multiple sizes and numbers over the dorsum of  both
           hands and fingers.

   On dissection, he found the following:


        a) Collection of blood along with patches of hemorrhages  over  the
           hyoid cartilage and neck muscle
        b) Hyoid bone fractured
        c) Deep Synosis in the nails of toes and fingers
        d) Lungs were congested & accumulation of fluid and blood
        e) Hymen was rupture with bloody tinge.

      PW-2 Dr. Modak stated that the death of the victim was caused by anti-
mortem rape and strangulation.  Death was homicidal in nature.

12.   So far as charge of rape is concerned, PW-2 Dr. Modak’s  evidence  and
the finding recorded in the Post Mortem Notes which we  have  reproduced  in
the preceding paragraph establish that it is proved.  It  is  true  that  in
the cross-examination, PW-2 Dr. Modak has admitted that whether the  rupture
was old or of recent origin is not stated in the report and that  the  blood
detected at the rupture site might have been menstrual blood.  But,  he  has
categorically stated that the dimensions of the vagina of the victim do  not
indicate that she was habituated to sexual intercourse.   His  opinion  that
there was rape is therefore correct and,  in  the  circumstances,  which  we
have  noted  hereinabove,  no  one  but  the  appellant  could   have   been
responsible for the rape.

13.   The appellant was arrested on 31/10/1997.  His  lungi  was  seized  on
the same day.  Serological report (Ex-9) records that  semen  was  found  on
the lungi.   The  report  further  states  that  no  spermatozoon  could  be
detected in the urethral  swab  of  the  appellant.   This  finding  is  not
relevant because PW-6 Mr. Debasis  Som,  who  has  clinically  examined  the
appellant, has stated that he examined the appellant  on  5/12/1997  whereas
the incident had taken place on 31/10/1997.    Though  the  pubic  hair  and
vaginal swab of the deceased were preserved and sent for chemical  analysis,
the report of the Serologist does  not  help  the  prosecution  because  the
Serologist could not conduct analysis because  of  insufficiency  of  blood.
PW-2 Dr. Modak has stated that the evidence of spermatozoon in vaginal  swab
conclusively indicates sexual intercourse, but he has also stated  that  the
spermatozoon may not be detected in vagina 10 hours after  rape.  Obviously,
vaginal swab was chemically analyzed after a long lapse of  time  after  the
rape.  We have  no  manner  of  doubt  that  had  the  Investigating  Agency
obtained the samples in a scientific manner and promptly sent  them  to  the
Serologist that would have lent further support to the  prosecution.   There
is some substance in the grievance of  learned  counsel  for  the  appellant
that the Investigating Agency also did not obtain  finger  prints  from  the
place  of  incident.   But,  it  is  well  settled   that   remissness   and
inefficiency of the Investigating Agency should be no  ground  to  acquit  a
person if there is enough evidence on record to establish his  guilt  beyond
reasonable doubt.  It is said by this  court  in  a  number  of  cases  that
irregularities or deficiencies in conducting  investigation  by  prosecution
is not always fatal  to  the  prosecution  case.   If  there  is  sufficient
evidence  to  establish  the  substratum  of  the  prosecution  case,   then
irregularities which occur due to remissness of  the  Investigating  Agency,
which do not affect the substratum  of  the  prosecution  case,  should  not
weigh with the court.  As we have already noted the only male apart from PW-
1 Tarak, the father of the deceased, who was present on  the  fateful  night
with deceased Pampa in their house was the appellant.  The house was  locked
from inside.  Therefore, we have no hesitation in confirming the  concurrent
findings  recorded  by  the  trial  court  and  the  High  Court  on  minute
examination of the evidence that it is the  appellant  who  was  responsible
for the rape and murder of deceased Pampa.  It is argued  that  the  conduct
of the accused shows that he is innocent.  The  accused  did  not  run  away
from the scene of offence.  We find no substance  in  this  submission.   In
the facts of this case, if the appellant had ran away, that would  have,  in
fact,  weakened  his  case  and  strengthened  the  prosecution  case.   The
decision to remain at the spot appears to  be  a  calculated  one.   In  the
circumstances, we are of the opinion that the  prosecution  has  established
its case beyond reasonable doubt.  There is no merit in the case.

14.   The appeal is dismissed.

                                                       ……………………………………………..J.
                                 (SURINDER SINGH NIJJAR)


                                                       ……………………………………………..J.
                             (RANJANA PRAKASH DESAI)
NEW DELHI,
JULY 31, 2012.

service matter - Respondent No.4, Rajeswar Panda filed an appeal before the Director, Higher Education, Orissa, Bhubaneswar, stating that he was appointed as a lecturer in History in Sushree Devi Women’s College, Aul, Kendrapara after due selection but he was not allowed to discharge his duties because the Governing Body of the College tried to accommodate the appellant in his place. The appeal was disposed of by the Director by an ex parte order vide office order No.2A-9-07-III: 30092 dated July 23, 2008 holding that the action of the General Body in prohibiting the applicant (respondent No.4 in the present appeal) from discharging his duties was invalid and illegal and requested the Secretary of the Governing Body to forthwith allow respondent No.4 to perform his duties as a lecturer in the college.We are of the view that the matter has not been satisfactorily dealt with and at the same time there are materials to suggest that respondent No.4 was able to obtain the ex parte order from the Director on the basis of a document, the genuineness of which is doubtful. We, therefore, deem it just and proper to set aside all the previous orders passed both by the High Court and the Director and remit the case to the Director to consider the matter afresh after hearing respondent No.4, the Governing Body of the College and the appellant and pass a fresh order on his appeal in accordance with law. We are informed that different proceedings/cases arising from the earlier orders passed by the Director are pending before the High Court and/or in other courts. As we have set aside all the earlier orders, any proceedings arising therefrom pending before any court shall also stand abated. 11. In the result, the appeal is allowed to the extent indicated above but with no order as to costs.

                                             NON-REPORTABLE
                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION

                       CIVIL APPEAL NO. 5670  OF 2012
                  (Arising out of SLP(C) No.32029 of 2010)


Jayanti Kumari Nayak                               … Appellant

                                   Versus

State of Orissa & Ors.                             … Respondents



                               J U D G M E N T


Aftab Alam, J.

1.    Leave granted.
2.    Respondent No.4, Rajeswar Panda filed an appeal before  the  Director,
Higher Education, Orissa, Bhubaneswar, stating that he was  appointed  as  a
lecturer in History in Sushree Devi Women’s College, Aul,  Kendrapara  after
due selection but he was not allowed to discharge  his  duties  because  the
Governing Body of the College tried to  accommodate  the  appellant  in  his
place.  The appeal was disposed of by the Director  by  an  ex  parte  order
vide office order No.2A-9-07-III: 30092 dated July  23,  2008  holding  that
the action of the General Body  in  prohibiting  the  applicant  (respondent
No.4 in the present appeal) from discharging  his  duties  was  invalid  and
illegal and requested the Secretary  of  the  Governing  Body  to  forthwith
allow respondent No.4 to perform his duties as a lecturer in the college.
3.    The Governing Body  filed  Writ  Petition  (Civil)  No.12317  of  2008
challenging the order passed by the Director before the Orissa  High  Court.
On behalf  of  the  Governing  Body,  it  was  stated  that  the  intimation
regarding the date of hearing was received by them a day after  the  hearing
was scheduled and it was for that  reason  that  no  representative  of  the
Governing Body was able to appear before the Director to present  its  case.
The High Court, however, found that the notice of hearing was given  to  the
Governing Body by means of a telegram and the  Secretary  of  the  Governing
Body had made the endorsement on the telegram “College closed and  Secretary
absent on 4.6.2008 and 5.6.2008.”  The High  Court,  thus,  found  that  the
explanation given on behalf of the Governing Body for non-appearance  before
the  Director  was  incorrect.   The  High  Court,  therefore,  declined  to
entertain the Writ Petition but in the concluding part  of  the  order  made
the following observation:-
            “However, it is open to the petitioner to  file  an  application
      before the Director, Higher Education to  review  the  impugned  order
      dated 23.7.2008.  If such an application is filed by  the  petitioner,
      the Director is at liberty to deal with the same  in  accordance  with
      law.”

 4.   In pursuance of the order passed by  the  High  Court,  the  Governing
Body filed an application before the  Director  for  setting  aside  the  ex
parte order dated July 23, 2008.  On this application,  the  Director  heard
both sides and passed an order on June  29,  2009  recalling  his  ex  parte
order dated July 23, 2008 and holding that respondent No.4 had never  worked
in the College and the appointment order produced by him was not  a  genuine
document.
5.    Respondent No.4 challenged the order of the Director  dated  June  29,
2009 before the High Court in  Writ  Petition  (Civil)  No.10446/2009.   The
High Court allowed the writ petition by order  dated  July  20,  2010.   The
High Court noticed the earlier proceedings between the parties  and  further
that in the previous writ petition  filed  by  the  Governing  Body  of  the
College, the Court had left it  open  to  the  Governing  Body  to  file  an
application before the Director for review of his earlier order of July  23,
2008.  It, nevertheless, held that the Director had no power to  review  and
its earlier order of July 23, 2008 had become final  and  it  could  not  be
altered or changed by him on the basis of a  petition  for  recall  of  that
order. The High Court pronounced that the order of the Director  dated  July
23, 2008 was final.  It, accordingly, allowed the writ petition.
6.    Against the  order  of  the  High  Court  dated  July  23,  2008,  the
appellant has come in appeal to this Court.
7.    On hearing counsel for the  parties,  we  find  that  the  two  orders
passed by the High Court in this matter  have  resulted  into  an  anomalous
situation.  In the first round when the Governing  Body  challenged  the  ex
parte order passed by the Director, the High Court refused to entertain  the
application observing that the Governing Body had  received  due  notice  of
the date of hearing. Had the High Court simply rejected the  writ  petition,
the Governing Body could have sought its remedies by  preferring  an  appeal
before this Court.  But, the High Court  while  refusing  to  entertain  the
writ petition left it open to the Governing Body  to  file  a  petition  for
review of the order dated July 23, 2008  before  the  Director.   Acting  in
pursuance of the liberty granted by the High Court, the Governing Body  made
an application for recall of the ex parte order.  This petition was  allowed
and the Director found that respondent No.4 had approached him on the  basis
of a document that was apparently not  genuine.  But,  this  order  was  set
aside by the High Court holding in the second round that  the  Director  had
no power to review.
8.    We are of the view that the matter has not been  satisfactorily  dealt
with and at the same time there are materials  to  suggest  that  respondent
No.4 was able to obtain the ex parte order from the Director  on  the  basis
of a document, the genuineness of which is doubtful.   We,  therefore,  deem
it just and proper to set aside all the previous orders passed both  by  the
High Court and the Director and remit the case to the Director  to  consider
the matter afresh after hearing respondent No.4, the Governing Body  of  the
College and  the  appellant  and  pass  a  fresh  order  on  his  appeal  in
accordance with law.   Needless to say  that  any  party  aggrieved  by  the
order of the Director may seek his/her remedy in accordance with law.
9.    The Director shall give prior notice of the date  of  hearing  to  all
the three sides, as indicated above and after hearing them on  the  date  so
fixed dispose of the matter in accordance with law.
10.   We are informed that  different  proceedings/cases  arising  from  the
earlier orders passed by the Director are  pending  before  the  High  Court
and/or in other courts.  As we have set aside all the  earlier  orders,  any
proceedings arising therefrom pending before  any  court  shall  also  stand
abated.
11.   In the result, the appeal is allowed to  the  extent  indicated  above
but with no order as to costs.



                                        ………………………………J.
                                        (Aftab Alam)



                                        ………………………………J.
                                        (Ranjana Prakash Desai)
New Delhi;
July 31, 2012.
-----------------------
6

when does the payment of compensation under the Workmen’s Compensation Act, 1923 (hereinafter the Act) become due and consequently what is the point in time from which interest would be payable on the amount of compensation as provided under section 4-A (3) of the Act.A four Judge Bench of this Court in Pratap Narain Singh Deo v. Srinivas Sabata, (1976) 1 SCC 289: (AIR 1976 SC 222: 1976 Lab IC 222) speaking through Singhal, J. has held that an employer becomes liable to pay compensation as soon as the personal injury is caused to the workmen by the accident which arose out of and in the course of employment. Thus, the relevant date for determination of the rate of compensation is the date of the accident and not the date of adjudication of the claim.The decisions in Pratap Narain Singh Deo was by a four Judge Bench and in Valsala by a three Judge Bench of this Court. Both the decisions were, thus, fully binding on the Court in Mubasir Ahmed and Mohd. Nasir, each of which was heard by two Judges. But the earlier decisions in Pratap Narain Singh Deo and Valsala were not brought to the notice of the Court in the two later decisions in Mubasir Ahmed and Mohd. Nasir.In light of the decisions in Pratap Narain Singh Deo and Valsala, it is not open to contend that the payment of compensation would fall due only after the Commissioner’s order or with reference to the date on which the claim application is made. The decisions in Mubasir Ahmed and Mohd. Nasir insofar as they took a contrary view to the earlier decisions in Pratap Narain Singh Deo and Valsala do not express the correct view and do not make binding precedents.

                                                                  REPORTABLE
                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION


                       CIVIL APPEAL NO. 5669  OF 2012
                  (Arising out of SLP (C) No.9516 of 2010)






      |The Oriental Insurance Co.Ltd.            |.....APPELLANT(S)        |
|                                          |                         |
|VERSUS                                    |                         |
|Siby George & Ors.                        |.....RESPONDENT(S)       |








                                  JUDGMENT




       Aftab Alam, J.


       1.   Leave granted.
       2.   The short question that arises for consideration in this appeal
       is when  does  the  payment  of  compensation  under  the  Workmen’s
       Compensation  Act,  1923  (hereinafter  the  Act)  become  due   and
       consequently what is the point in time from which interest would  be
       payable on the amount of compensation as provided under section  4-A
       (3) of the Act.
       3.   In this case,  the  Commissioner  for  Workmen’s  Compensation,
       Ernakulam, by his order dated November 26, 2008 in WCC No.67 of 2006
       directed for payment of simple interest at the rate of 12% per annum
       from the date of the accident on  July  12,  2006.  The  appellant’s
       appeal (MFA No.172 of 2009) against the order  of  the  Commissioner
       was dismissed by the Kerala High Court by order dated July 22,  2009
       as barred by limitation. Against the order of  the  High  Court  the
       appellant filed the special leave  petition  (giving  rise  to  this
       appeal) in which notice was issued “limited to the interest”.
       4.    Mr.  Mehra,  learned  counsel  appearing  for  the  appellant,
       submitted that the learned Commissioner was wrong in  directing  for
       payment of interest from the date of the accident and  any  interest
       on the amount of compensation would be payable only from the date of
       the order of the Commissioner. In  support  of  the  submission,  he
       relied upon a decision of this Court in National Insurance Co.  Ltd.
       vs.  Mubasir Ahmed and Anr. (2007) 2 SCC 349, in which it  was  held
       that the compensation becomes due on the basis of  the  adjudication
       of the claim and hence, no interest can be levied prior to the  date
       of the passing of the order determining the amount of  compensation.
       In paragraph 9 of the  decision  the  Court  held  and  observed  as
       follows:-


                 “9…..In the instant case, the accident took place after the
                 amendment and, therefore, the rate of 12% as fixed  by  the
                 High Court cannot be faulted. But the period as fixed by it
                 is wrong.  The starting point is on completion of one month
                 from the date on which it fell due.  Obviously it cannot be
                 the date of accident.  Since no indication is there  as  to
                 when it becomes due, it has to be taken to be the  date  of
                 adjudication of the claim. This appears to  be  so  because
                 Section 4-A (1) prescribes that compensation under  Section
                 4 shall be paid as soon as it falls due.  The  compensation
                 becomes due on the basis of adjudication of the claim made.
                  The adjudication under Section 4 in  some  cases  involves
                 the assessment of loss of earning capacity by  a  qualified
                 medical practitioner. Unless adjudication is done, question
                 of compensation becoming due does not arise.  The  position
                 becomes clearer on a reading of sub-section (2) of  Section
                 4-A.  It provides that provisional payment to the extent of
                 admitted liability has to be made when  employer  does  not
                 accept  the  liability  for  compensation  to  the   extent
                 claimed.   The   crucial   expression   is   “falls   due”.
                 Significantly, legislature  has  not  used  the  expression
                 “from  the  date  of  accident”.   Unless   there   is   an
                 adjudication, the question of an amount  falling  due  does
                 not arise.”
                                                  (empasis added)




       5.   Learned counsel also invited our attention to another  decision
       of the Court  by  which  a  number  of  appeals  and  special  leave
       petitions were  disposed  of  and  which  is  reported  as  Oriental
       Insurance Company Limited vs.  Mohd. Nasir and  Anr.  (2009)  6  SCC
       280. In this decision the Court held that “there cannot be any doubt
       whatsoever that interest would be from the date of default  and  not
       from the date of award of compensation” (paragraph 47). It then went
       on to say that the Act does not prohibit  grant  of  interest  at  a
       reasonable rate from the date of filing of the claim  petition  till
       an order is passed on it, adding that the higher, statutory rate  of
       interest under sub-section (3) of section 4 would be  payable  in  a
       case that attracted that provision and for which “a finding of  fact
       as envisaged therein has to be arrived at”. The Court then  referred
       to paragraph 9 of the decision in Mubasir  Ahmad  (extracted  above)
       but declined to follow it observing that the  earlier  decision  had
       not considered the aspect of the matter as was being viewed  in  the
       case of Mohd. Nasir.   In Mohd. Nasir the Court finally directed for
       payment of interest at the rate of 7½%  per annum from the  date  of
       filing the application till the date of the award, further observing
       that thereafter interest would be payable at the rate as directed in
       the order passed by the Commissioner. (See paragraphs 47  to  50  of
       the judgment).


       6.   The view taken by the Court in Mohd. Nasir  that  the  rate  of
       interest provided under sub-section (3) of section 4-A  would  apply
       only in case the “finding of fact as envisaged therein”  is  arrived
       at by the Commissioner, it must respectfully  be  stated,  seems  to
       result from the mixing up of ‘interest due to default in payment  of
       compensation’ and ‘penalty for an unjustified delay  in  payment  of
       compensation’ and is based on a misreading of the sub-section (3) of
       section 4-A.
                       Sections 4-A (1) and (3) are as under:-
                       4-A.  Compensation to be paid, when due  and  penalty
                 for default. – (1) compensation under section  4  shall  be
                 paid as soon as it falls due.


                       (2)   xxx  xxx   xxx


                       (3)   Where any employer is in default in paying  the
                 compensation due under this Act within one month  from  the
                 date it fell due, the Commissioner shall -




                       (a)   direct that the employer shall, in addition  to
                 the amount of the arrears, pay simple interest  thereon  at
                 the rate of twelve per cent per annum  or  at  such  higher
                 rate not exceeding the maximum of the lending rates of  any
                 scheduled  bank  as  may  be  specified  by   the   Central
                 Government, by notification in the Official Gazette on  the
                 amount due; and


                 (b)   if, in his opinion, there is no justification for the
                 delay, direct that the employer shall, in addition  to  the
                 amount of the arrears and interest thereon, pay  a  further
                 sum not exceeding fifty per cent of such amount by  way  of
                 penalty:


                       Provided that an order for  the  payment  of  penalty
                 shall not be passed  under  clause  (b)  without  giving  a
                 reasonable opportunity to the employer to show cause why it
                 should not be passed.


                       Explanation. -   xxx xxx xxx


                 (3A)  xxx xxx xxx




       7.   It is, thus, to be seen that sub-section (3) of section 4-A  is
       in two parts,  separately  dealing  with  interest  and  penalty  in
       clauses (a) and (b) respectively.  Clause  (a)  makes  the  levy  of
       interest,  with  no  option,  in  case  of  default  in  payment  of
       compensation, without going into the question regarding the  reasons
       for the default. Clause (b) provides for imposition  of  penalty  in
       case, in the opinion of the Commissioner, there was no justification
       for the delay. Before imposing penalty, however, the Commissioner is
       required to give the  employer  a  reasonable  opportunity  to  show
       cause. On a plain reading of the provisions of  sub-section  (3)  it
       becomes clear that payment of interest is a consequence  of  default
       in payment without going into the reasons for the delay  and  it  is
       only in case where the delay is without justification, the  employer
       might also be held liable to penalty after giving him a show  cause.
       Therefore, a finding to the effect that the delay in payment of  the
       amount due was unjustified is required to be recorded only  in  case
       of imposition of penalty and no such finding is required in case  of
       interest which is to be levied on default per se.
       8.   Now, coming back to the  question  when  does  the  payment  of
       compensation  fall  due  and  what  would  be  the  point  for   the
       commencement of interest, it may be noted that neither the  decision
       in Mubasir Ahmed nor the one in Mohd. Nasir can be said  to  provide
       any valid guidelines because both the  decisions  were  rendered  in
       ignorance of earlier larger Bench decisions of this Court  by  which
       the issue was concluded.  As early as in 1975 a four Judge Bench  of
       this Court in Pratap Narain Singh  Deo.  Vs.  Shrinivas  Sabata  and
       Anr., AIR 1976 SC 222 directly answered the question. In  paragraphs
       7 and 8 of the decision it was held and observed as follows:-


                       “7. Section 3 of the Act deals with  the  employer’s
                  liability  for  compensation.  Sub-section  (1)  of  that
                  section provides that the employer shall be liable to pay
                  compensation if “personal injury is caused to  a  workman
                  by accident arising out of  and  in  the  course  of  his
                  employment.” It was not the case of the employer that the
                  right to compensation was taken  away  under  sub-section
                  (5) of Section 3 because of the institution of a suit  in
                  a civil court for damages,  in  respect  of  the  injury,
                  against the employer or any other  person.  The  employer
                  therefore became liable to pay the compensation  as  soon
                  as the  aforesaid  personal  injury  was  caused  to  the
                  workman by the accident which admittedly arose out of and
                  in the course of the employment.  It is therefore  futile
                  to contend that the compensation did not fall  due  until
                  after the Commissioner’s order dated May  6,  1969  under
                  Section 19.  What the section provides  is  that  if  any
                  question arises in any proceeding under the Act as to the
                  liability of any person to pay compensation or as to  the
                  amount or duration  of  the  compensation  it  shall,  in
                  default of agreement, be  settled  by  the  Commissioner.
                  There is therefore nothing to justify the  argument  that
                  the  employer’s  liability  to  pay  compensation   under
                  Section 3, in respect of the injury, was suspended  until
                  after the settlement  contemplated  by  Section  19.  The
                  appellant was thus liable to pay compensation as soon  as
                  the  aforesaid  personal  injury  was   caused   to   the
                  appellant, and there is no justification for the argument
                  to the contrary.


                       8. It was the duty of the appellant, under Section 4-
                  A(1) of the Act, to pay  the  compensation  at  the  rate
                  provided by Section 4 as soon as the personal injury  was
                  caused to the respondent.  He failed to do  so.  What  is
                  worse, he did not even make a provisional  payment  under
                  sub-section (2) of Section 4 for, as has been stated,  he
                  went to the extent of taking the  false  pleas  that  the
                  respondent was a casual contractor and that the  accident
                  occurred solely because of his negligence. Then there  is
                  the further fact that he paid no heed to the respondent’s
                  personal approach for  obtaining  the  compensation.   It
                  will be recalled that the respondent was  driven  to  the
                  necessity of making an application  to  the  Commissioner
                  for settling the claim,  and  even  there  the  appellant
                  raised a frivolous objection as to  the  jurisdiction  of
                  the Commissioner and prevailed on the respondent to  file
                  a memorandum of agreement settling the claim  for  a  sum
                  which was so grossly inadequate that it was  rejected  by
                  the Commissioner. In these facts  and  circumstances,  we
                  have no doubt that the Commissioner was  fully  justified
                  in making an order for the payment of  interest  and  the
                  penalty.”




       9.   The matter  once  again  came  up  before  the  Court  when  by
       amendments introduced in the Act by Act No. 30 of 1995 the amount of
       compensation and the rate of interest  were  increased  with  effect
       from 15.9.1995. The question arose whether the increased  amount  of
       compensation and the rate of interest would apply also to  cases  in
       which the accident took place before 15.9.1995. A three Judge  Bench
       of the Court in Kerala State Electricity Board vs.  Valsala K.,  AIR
       1999 SC 3502 answered the question in the negative holding,  on  the
       authority  of  Pratap  Narain  Singh  Deo,  that  the   payment   of
       compensation fell due on the date of the accident. In paragraphs  1,
       2, and 3 of the decision the Court observed as follows:


                       “1.The neat question involved in these special leave
                  petitions is whether the amendment of Ss.4 and 4A of  the
                  Workmen’s Compensation Act, 1923, made by  Act  No.30  of
                  1995 with effect from 15-9-1995, enhancing the amount  of
                  compensation and rate of interest, would be attracted  to
                  cases where the claims in respect of death  or  permanent
                  disablement resulting from an accident caused during  the
                  course of employment, took place prior to 15-9-1995?


                       2.   Various  High  Courts  in  the  country,  while
                  dealing  with  the  claim  for  compensation  under   the
                  Workmen’s Compensation Act have uniformly taken the  view
                  that the relevant date for  determining  the  rights  and
                  liabilities of the parties is the date of the accident.


                       3.  A four Judge  Bench  of  this  Court  in  Pratap
                  Narain Singh Deo   v.  Srinivas Sabata, (1976) 1 SCC 289:
                  (AIR 1976 SC 222:  1976  Lab  IC  222)  speaking  through
                  Singhal, J. has held that an employer becomes  liable  to
                  pay compensation as soon as the personal injury is caused
                  to the workmen by the accident which arose out of and  in
                  the course of employment. Thus,  the  relevant  date  for
                  determination of the rate of compensation is the date  of
                  the accident and not the  date  of  adjudication  of  the
                  claim.



       10.  The Court then referred to a Full Bench decision of the  Kerala
       High Court in United India Insurance Co. Ltd.   vs.  Alavi,  1998(1)
       KerLT 951(FB) and approved it in so far as it followed the  decision
       in Pratap Narain Singh Deo.


       11.  The decisions in Pratap Narain Singh Deo was by  a  four  Judge
       Bench and in Valsala by a three Judge Bench of this Court.  Both the
       decisions were, thus, fully binding on the Court  in  Mubasir  Ahmed
       and Mohd. Nasir, each of which was heard by  two  Judges.   But  the
       earlier decisions in Pratap Narain Singh Deo and  Valsala  were  not
       brought to the notice of the Court in the  two  later  decisions  in
       Mubasir Ahmed and Mohd. Nasir.
       12.  In light of the  decisions  in  Pratap  Narain  Singh  Deo  and
       Valsala, it is not open to contend that the payment of  compensation
       would fall due only after the Commissioner’s order or with reference
       to the date on which the claim application is made.   The  decisions
       in Mubasir Ahmed and Mohd. Nasir insofar as  they  took  a  contrary
       view to the earlier decisions in Pratap Narain Singh Deo and Valsala
       do not express the correct view and do not make binding precedents.
       13.  In light of the discussion made above, we find no merit in  the
       appeal and it is dismissed with costs amounting to Rs.20,000/-.  The
       amount of cost must be paid to the respondents within six weeks from
       today.


                                        ………………………….J.
                                        (Aftab Alam)



                                        ………………………….J.
                                        (Ranjana Prakash Desai)
       New Delhi;
       July 31, 2012.


-----------------------
11

11

illegal gratification= from the evidence of the witnesses that there was sufficient evidence of Syed Ahmed demanding illegal gratification from Nagaraja and receiving and accepting it when given by him. On this basis, we find no reason to interfere with the judgment and order under appeal. With regard to the sentence awarded to Syed Ahmed, the High Court has erred in awarding a sentence of only three months rigorous imprisonment. Section 13(2) of the Act prescribes a minimum sentence of one year imprisonment. However, the State has not appealed against the quantum of sentence. Moreover, the incident is of 1993, which is about 19 years ago. Keeping these factors in mind, we do not propose to interfere with the sentence awarded. The appeal is dismissed.

                                                                  REPORTABLE
                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION

                       CRIMINAL APPEAL NO.1323 OF 2007


Syed Ahmed                                   …..Appellant

                 Versus

State of Karnataka                                …..Respondent


                               J U D G M E N T

Madan B. Lokur, J.

      The Appellant (Syed  Ahmed)  was  acquitted  by  the  Trial  Court  of
offences under Sections 7 and  13(1)(d)  read  with  Section  13(2)  of  the
Prevention of Corruption Act, 1988. The acquittal was set aside by the  High
Court and he is aggrieved thereby. We are in agreement  with  the  order  of
conviction handed down by the High Court. We are not in agreement  with  the
sentence awarded, but  prefer  to  let  the  matter  rest.  Accordingly,  we
dismiss this appeal.
The facts:
      Nagaraja @ Nagarajegowda (PW1) and his father, Thimmegowda  (PW4)  are
owners of some land.  On 7th June, 1993 they had  a  boundary  dispute  with
their immediate neighbour, Channakeshavegowda which resulted in their  being
assaulted by him and others. Thimmegowda then  lodged  a  complaint  on  the
same day with the Konanur Police Station in this regard.
      According to Syed Ahmed  (a  police  officer  in  the  Konanur  Police
Station),  the  complaint  was  inquired  into  by  S.C.  Rangasetty  (PW7).
According to Nagaraja, illegal gratification was demanded by Syed  Ahmed  to
enable him to file a charge-sheet against Channakeshavegowda and  others  on
the complaint by Thimmegowda.
      The dispute between Thimmegowda and Channakeshavegowda  was,  however,
amicably resolved in a  few  days  time  and  the  settlement  entered  into
between them is Exhibit P.15 in the Trial Court.
      Unfortunately, on 27th June,  1993  a  boundary  dispute  again  arose
between Nagaraja and Thimmegowda on the one hand and Channakeshavegowda  and
others on the other. This resulted in Nagaraja lodging a  complaint  against
Channakeshavegowda  in  the  Konanur  Police  Station on  27th  June,  1993.
For inquiring into this complaint, Syed  Ahmed  allegedly  demanded  illegal
gratification from Nagaraja.
      Feeling aggrieved by the unlawful demand, Nagaraja lodged a  complaint
with the Lok Ayukta Police at Hassan on 28th  June,  1993.  The  Lok  Ayukta
Police decided to trap Syed Ahmed  while  demanding  and  accepting  illegal
gratification from Nagaraja. As per  the  arrangement  for  the  trap,  some
currency notes were treated with phenolphthalein powder  and  upon  delivery
of these tainted currency  notes  to  Syed  Ahmed,  his  fingers  would  get
smeared with the powder. Thereafter, on washing the  powdered  fingers  with
sodium carbonate solution, the resultant wash  would  turn  pink  indicating
thereby the physical receipt of the tainted currency by Syed Ahmed.
      Also, as  per  the  arrangements,  two  independent  persons  were  to
accompany Nagaraja to witness the transaction of  delivery  of  the  tainted
currency notes to Syed Ahmed.  The two independent  witnesses  in  the  case
are Sidheshwara Swamy (PW2) and Keshavamurty (PW6).
      As per the plan chalked out by the Lok Ayukta  Police,  Nagaraja  went
to the Konanur Police Station to hand  over  the  illegal  gratification  to
Syed Ahmed. However, when he reached there, he was told that Syed Ahmed  was
available at the Inspection Bungalow.  Accordingly, Nagaraja  and  the  trap
party went to the Inspection Bungalow.
      At the Inspection Bungalow, the two independent  witnesses  positioned
themselves close to Syed Ahmed’s room. Nagaraja then entered  his  room  and
after a brief conversation with Syed Ahmed, he  handed  over  some  currency
notes to him.  Thereafter, Nagaraja exited from the room  and  gave  a  pre-
determined signal to the trap  party  who  reached  Syed  Ahmed’s  room  and
washed his hands with sodium carbonate  solution  which  turned  pink.  This
confirmed his physical receipt of the tainted currency notes from  Nagaraja.

      On these broad facts, the prosecution charged  Syed  Ahmed  (a  public
servant) with demanding and accepting illegal  gratification  from  Nagaraja
and thereby committing an offence under Sections 7 and  13(1)(d)  read  with
Section 13(2) of the Prevention of Corruption Act,  1988  (for  short,  ‘the
Act’).
      The prosecution examined eight witnesses including Nagaraja (PW1)  and
the two independent trap witnesses Sidheshwara Swamy (PW2) and  Keshavamurty
(PW6). In addition, the prosecution also examined Bistappa (PW3) the  scribe
of  the  complaint  dated  28th  June,  1993  to  the  Lok  Ayukta   Police;
Thimmegowda (Nagaraja’s father) as PW4; B. Pradeep Kumar  (PW5)  the  Police
Inspector of the Lok Ayukta Police, who  arranged  the  trap,  prepared  the
trap mahazar and investigated the case;  S.C.  Rangasetty  (PW7)  who  dealt
with the complaint  dated  7th  June,  1993  and  confirmed  the  settlement
Exhibit P.15. The officer who seized the samples relevant to  the  trap  and
sent them to Bangalore  for  analysis  and  then  received  the  report  was
examined as PW8. None of the prosecution witnesses turned hostile.
Trial Court judgment:
Upon a consideration of the testimony of the witnesses and the documents  on
record, the Trial Judge by his judgment and  order  dated  21st  July,  2000
concluded that the prosecution had failed to prove  its  case  against  Syed
Ahmed beyond a reasonable doubt. Accordingly, Syed Ahmed  was  acquitted  of
the charges leveled against him.
      The  Trial  Judge  held  that  the  dispute  between  Thimmegowda  and
Channakeshavegowda (of 7th June, 1993) was amicably  settled  and  so  there
was no occasion for Syed Ahmed to demand any gratification from Nagaraja  in
connection with that complaint. As far as the other dispute (of  27th  June,
1993) is concerned, it was held that Syed Ahmed had no role to  play  in  it
since he was not investigating that  complaint.  There  was,  therefore,  no
occasion for Syed Ahmed to demand any gratification from  Nagaraja.  On  the
contrary, it was held that Nagaraja had some enmity with  Syed  Ahmed  as  a
result of Nagaraja’s failure to return some village utensils, which  led  to
Syed Ahmed taking action against Nagaraja’s elder  brother  Thimmegowda.  It
was to wreak vengeance on Syed Ahmed because of  that  event  that  Nagaraja
filed a false complaint against him.
      The Trial Judge had  some  reservations  about  the  location  of  the
witnesses when the gratification was said to have been given to Syed  Ahmed.
The Trial Judge also held that Syed Ahmed’s wallet and  a  Rs.10/-  currency
note recovered therefrom ought to have been sent for  forensic  examination.
The Trial Judge also noted that there was an inconsistency in the  testimony
of the witnesses about the dress worn by Syed Ahmed when he  is  alleged  to
have taken the illegal gratification. Finally, the  Trial  Judge  held  that
the failure of the prosecution to produce the  complaint  dated  27th  June,
1993 made by Nagaraja against Channakeshavegowda was significant.
      Taking all these factors and  discrepancies  into  consideration,  the
Trial Judge did not accept the version  of  the  prosecution  and  acquitted
Syed Ahmed of the charges framed against him.
High Court judgment:
      On appeal by the State, a learned Single Judge of the  High  Court  of
Karnataka by his order dated 25th July, 2006  set  aside  the  judgment  and
order of the Trial Court and convicted Syed Ahmed for an offence  punishable
under Sections 7 and 13(1)(d) read with Section  13(2)  of  the  Act.   Syed
Ahmed was sentenced to suffer rigorous imprisonment for a  period  of  three
months and to pay a fine of Rs.20,000/-, and in default thereof  to  undergo
simple imprisonment for a period of six months.
      The High Court held that there was no reason to  disbelieve  Nagaraja,
nor  was  there  any  reason  to  disbelieve  Sidheshwara  Swamy  (PW2)  the
independent witness. It was also held that in view of Section  7(d)  of  the
Act, a public servant who is not in a position to do any favour to a  person
could also be deemed to commit an offence under the Act if  he  demands  and
accepts illegal gratification. As regards the discrepancies pointed  out  by
the Trial Court, the High Court found that they did not  dent  the  veracity
of Nagaraja (PW1) or of  Sidheshwara  Swamy  (PW2).  Accordingly,  the  High
court reversed the order of acquittal and convicted Syed Ahmed.
      Feeling aggrieved, Syed Ahmed preferred an appeal to this Court.
Statutory provisions:
      Section 7 of the Act, to the extent that we are  concerned,  reads  as
follows:
        “7.  Public  servant  taking   gratification   other   than   legal
        remuneration in respect of  an  official  act.—Whoever,  being,  or
        expecting to be a public servant, accepts or obtains or  agrees  to
        accept or attempts to obtain from any person, for  himself  or  for
        any other person, any  gratification  whatever,  other  than  legal
        remuneration, as a motive or reward for doing or forbearing  to  do
        any official act or for showing  or  forbearing  to  show,  in  the
        exercise of his official functions,  favour  or  disfavour  to  any
        person or for rendering or attempting  to  render  any  service  or
        disservice to any person, with the Central Government or any  State
        Government or Parliament or the Legislature of any  State  or  with
        any local authority, corporation or Government company referred  to
        in clause (c) of Section 2, or with  any  public  servant,  whether
        named or otherwise, shall be  punishable  with  imprisonment  which
        shall be not less than six months but  which  may  extend  to  five
        years and shall also be liable to fine.


        Explanations.—(a) xxx xxx xxx.
        (b) xxx xxx xxx.
        (c) xxx xxx xxx.


        (d) “A motive or  reward  for  doing.”  A  person  who  receives  a
        gratification as a motive or reward for  doing  what  he  does  not
        intend or is not in a position to do, or has not done, comes within
        this expression.


        (e) xxx xxx xxx.”




      Sections 13(1)(d) and 13(2) of the Act read as follows:
           “Section 13 - Criminal, misconduct by a public servant

           (1) A public servant is said to commit the offence  of  criminal
           misconduct, —


           (a)  xxx xxx xxx


           (b)  xxx xxx xxx      


           (c)  xxx xxx xxx


           (d) if he,—


           (i) by corrupt or illegal means, obtains for himself or for  any
           other person any valuable thing or pecuniary advantage; or


           (ii) by abusing his position as a public  servant,  obtains  for
           himself or for any other person any valuable thing or  pecuniary
           advantage; or


           (iii) while holding office as a public servant, obtains for  any
           person any valuable thing or  pecuniary  advantage  without  any
           public, interest; or


           (e) xxx xxx xxx


           Explanation.—


           xxx xxx xxx


           (2) Any public servant who commits criminal misconduct shall  be
           punishable with imprisonment for a term which shall be not  less
           than one year but which may extend to seven years and shall also
           be liable to fine.”


Preliminary submissions and conclusions:
      Learned counsel for Syed Ahmed contended that the High Court ought not
to have interfered with the order of acquittal given by the Trial Judge.  In
this context, reference was made to the principles laid down  in  Chandrappa
v. State of Karnataka, (2007) 4 SCC 415, namely:-
        “(1) An appellate court has full power to review, reappreciate  and
        reconsider the evidence  upon  which  the  order  of  acquittal  is
        founded.


        (2) The Code  of  Criminal  Procedure,  1973  puts  no  limitation,
        restriction or condition on exercise of such power and an appellate
        court on the evidence before it may reach its own conclusion,  both
        on questions of fact and of law.


        (3) Various  expressions,  such  as,  “substantial  and  compelling
        reasons”,   “good   and   sufficient   grounds”,    “very    strong
        circumstances”, “distorted conclusions”, “glaring  mistakes”,  etc.
        are not intended to curtail extensive powers of an appellate  court
        in an appeal against acquittal. Such phraseologies are more in  the
        nature of “flourishes of language” to emphasise the  reluctance  of
        an appellate court to interfere with acquittal than to curtail  the
        power of the court to review the evidence and to come  to  its  own
        conclusion.
        (4) An appellate court, however, must bear in mind that in case  of
        acquittal, there is double presumption in favour  of  the  accused.
        Firstly, the presumption of innocence is available to him under the
        fundamental principle of criminal jurisprudence that  every  person
        shall be presumed to be innocent unless he is proved  guilty  by  a
        competent court of law. Secondly, the accused  having  secured  his
        acquittal, the presumption of his innocence is further  reinforced,
        reaffirmed and strengthened by the trial court.


        (5) If two reasonable conclusions are possible on the basis of  the
        evidence on record, the appellate  court  should  not  disturb  the
        finding of acquittal recorded by the trial court.”




      While culling out the above principles, this  Court  referred  to  and
relied  upon  over  a  dozen  earlier  decisions.  These   principles   were
reiterated recently in Jugendra Singh v. State of U.P., 2012 (5) SCALE  691.
We do not think it necessary to burden this decision  with  the  very  large
number of citations on the subject. Suffice it to say that these  principles
are now well settled.
      It is also necessary to appreciate the ingredients of the offence  for
which Syed Ahmed was convicted. This is necessary for understanding  whether
or not the Trial Judge correctly applied the law on the subject.
      Learned counsel relied upon State of Kerala v. C.P. Rao (2011)  6  SCC
450 and Banarsi Dass v. State of Haryana, (2010) 4  SCC  450  and  contended
that “mere recovery of tainted money, divorced  from  the  circumstances  in
which it is paid,  is  not  sufficient  to  convict  the  accused  when  the
substantive evidence in the case is not reliable”.  It  was  also  contended
that the  prosecution  should,  additionally,  prove  that  payment  to  the
accused was by way of a reward for doing or proposing to do a favour to  the
complainant.
      We are in agreement with learned counsel on this issue and it  is  for
this reason that we went through the evidence on record.
      We must add that on a reading of the provisions of the Act, it is also
necessary for the  prosecution  to  prove  that  the  person  demanding  and
accepting gratification is a public servant. In so far as the  present  case
is concerned, there is no dispute that Syed Ahmed is a public  servant.  The
prosecution must  also  prove  a  demand  for  gratification  and  that  the
gratification has been given to  the  accused.  If  these  basic  facts  are
proved, the accused may be found guilty of an offence under  the  provisions
of law that concern us in this case.
      Viewed in this light, the inquiry by the Trial  Judge  ought  to  have
been somewhat limited and confined to the question of a demand  for  illegal
gratification by Syed Ahmed, meeting that demand by Nagaraja and  acceptance
of the illegal gratification by  Syed  Ahmed.  Of  course,  Syed  Ahmed  was
entitled to put forward his defence, which was required to be considered  by
the Trial Judge. However, in this case, no defence was put forward,  but  an
attempt was made to discredit the witnesses.
      Given the law laid down by this Court, we are of the opinion that  the
High Court did not  commit  any  error  in  reappraising  the  evidence  for
arriving at the truth of the matter. The High Court  also  rightly  confined
itself to the core issues before it in concluding the guilt of Syed Ahmed.
Submissions on merits and conclusions:
      On the merits of the case, learned counsel made  several  submissions.
It was submitted that there is nothing on record to suggest that Syed  Ahmed
made any demand for gratification  or  received  and  accepted  any  illegal
gratification.
      This contention does not appeal to us, particularly  in  view  of  the
unshaken testimony of Nagaraja (PW1) and the corroborative evidence  of  the
eye witness Sidheshwara Swamy (PW2).  This witness was near the  window  and
just  outside  the  room  occupied  by  Syed  Ahmed.  He  refers   to   some
conversation that took place between Syed Ahmed and Nagaraja in a  low  tone
and which he could not hear. Thereafter, this  witness  specifically  states
that Syed Ahmed asked Nagaraja if he had brought what he was told to  bring.
 Nagaraja replied  in  the  affirmative  and  thereupon  Nagaraja  gave  the
tainted currency notes to Syed Ahmed, which he  accepted.  Thereafter,  Syed
Ahmed kept the tainted currency notes in a purse which was  then  placed  in
the pocket of his trousers hung on the wall. There is,  therefore,  a  clear
statement of Sidheshwara Swamy (PW2), which has not been  shaken  in  cross-
examination, to the effect that there was a demand  for  some  gratification
by Syed Ahmed from Nagaraja and that Nagaraja paid some money to Syed  Ahmed
by way of gratification. The ingredients of Section 13(1)(d) of the Act  are
fulfilled in this case and have been proved beyond any doubt.
      We agree with the High Court  that  in  view  of  Explanation  (d)  to
Section 7 of the Act, the issue  whether  Syed  Ahmed  could  or  could  not
deliver results (as it were) becomes irrelevant in view  of  the  acceptance
of the testimony of Nagaraja (PW1) and Sidheshwara Swamy (PW2).
      It was then contended that the High Court overlooked the fact that the
complaint dated 7th June, 1993 made by Thimmegowda  had  been  settled  vide
Exhibit P.15 and that the subsequent complaint  made  by  Nagaraja  on  27th
June, 1993 was not available on the record. It was  submitted  that  in  the
absence of the basic document, that is the complaint dated 27th  June,  1993
the case of the prosecution could not stand scrutiny.
      We are unable to accept this submission.   The  basis  of  the  action
against Syed Ahmed was not the complaint  dated  27th  June,  1993  but  the
complaint dated 28th June, 1993 made by Nagaraja to the Lok  Ayukta  Police.
This complaint is on the record and  is  marked  as  Exhibit  P.3.   In  the
complaint,  it  is  alleged,  that   Syed   Ahmed   had   demanded   illegal
gratification from Nagaraja and it is on a follow up of this complaint  that
arrangements were made to lay a trap against  Syed  Ahmed.  Learned  counsel
is, therefore, in error in assuming  that  action  against  Syed  Ahmed  was
based on the complaint dated 27th June, 1993.  As mentioned above,  this  is
factually not so.
      As regards settlement of the dispute  referred  to  in  the  complaint
dated 7th June, 1993 in our opinion that would not take away  the  substance
of the issue before us, namely, whether Syed  Ahmed  demanded  and  accepted
illegal gratification from Nagaraja or not. But, it is  submitted  that  the
complaint against Syed Ahmed was motivated. This is  traced  to  an  earlier
dispute between Nagaraja’s elder brother (also named Thimmegowda)  and  Syed
Ahmed. It appears that  sometime  in  May,  1993  Nagaraja  had  taken  some
utensils belonging to the village community for performing the  marriage  of
his younger brother. These utensils were  retained  by  Nagaraja  for  quite
some time. A complaint came to be made against  Thimmegowda  (PW4)  in  this
regard and at that time, Syed Ahmed assaulted Thimmegowda (elder brother  of
Nagaraja) for not promptly returning the utensils.  Due  to  this  incident,
and by way of revenge, Syed Ahmed is said to have  been  falsely  implicated
by Nagaraja.
      We are not inclined to give much weight to this incident.  The  reason
is that the issue regarding the return of utensils was settled as  testified
by Nagaraja and  S.C.  Rangasetty  (PW7).  In  addition,  we  find  that  no
suggestion was given by Syed Ahmed to any  witness  that  the  complaint  of
28th June, 1993 was a result  of  this  particular  incident.  Even  in  his
statement recorded under Section 313 of the Criminal  Procedure  Code,  Syed
Ahmed does not make out a case that that incident had some nexus  with  this
complaint. Also, if anybody had to have any grievance  in  this  regard,  it
would be Thimmegowda (elder brother of Nagaraja) and not Nagaraja. In  fact,
it appears that  Nagaraja  was  not  particularly  happy  with  his  brother
because he says  in  his  cross  examination  that  during  1993-94  he  was
managing the family affairs since his father was aged  and  infirm  and  his
elder brother was a drunkard.
      The next two submissions of learned counsel were to the effect that  a
currency note of Rs.10/- recovered from the wallet of Syed Ahmed and  indeed
the wallet also were not sent for  forensic  examination  to  ascertain  the
presence of phenolphthalein powder. Moreover, there is nothing on record  to
indicate what eventually happened to that currency note.
      We cannot see relevance of these submissions.  What we  are  concerned
with is whether Syed Ahmed had demanded illegal gratification from  Nagaraja
and whether he had received and accepted  that  illegal  gratification.  The
tainted currency notes given to Syed  Ahmed  as  illegal  gratification  are
material and not the untreated Rs.10/- currency note or the wallet in  which
all the currency notes were kept. These are minor issues that have  no  real
bearing on the controversy on hand.
      The final contention was that there is considerable  doubt  about  the
attire of Syed Ahmed at the time  of  receiving  the  illegal  gratification
from Nagaraja. It is pointed out that Nagaraja stated that  Syed  Ahmed  had
kept the tainted currency notes in a purse and that the purse  was  kept  in
the hip pocket of his trousers.  It is suggested  by  learned  counsel  that
this would indicate that Syed Ahmed was wearing trousers at  that  point  of
time.
      In his cross-examination also, Nagaraja stated  that  Syed  Ahmed  was
wearing his uniform  when  the  illegal  gratification  was  given  to  him.
According to learned counsel, both these statements confirm that Syed  Ahmed
was wearing his trousers when the concerned incident took place.
      In this context, reference was made to the  testimony  of  Sidheshwara
Swamy (PW2) who stated that Syed Ahmed kept the tainted currency notes in  a
purse which he put in the pocket of his trousers hanging on a wall.  In  his
cross-examination this witness stated that at the relevant time, Syed  Ahmed
was sitting on a cot wearing a vest and a lungi.
      On this basis, it is submitted by learned  counsel  that  there  is  a
discrepancy in the testimony of the witnesses with regard to the dress  worn
by Syed Ahmed when he was sought to be trapped. It is submitted  by  learned
counsel that the discrepancy casts a doubt on the correctness of the  events
said to have taken place on 28th June, 1993 and the benefit of this must  go
to Syed Ahmed.
      In our opinion, the discrepancy with regard  to  the  attire  of  Syed
Ahmedthe Rs.10/- currency note and the forensic examination  of  the  wallet
are rather minor matters. What is a minor discrepancy?  This  has  been  the
subject matter of discussion in Abdul Nawaz v. State of  West  Bengal,  2012
(5) SCALE  357  and  Jugendra  Singh.  After  referring  to  a  few  earlier
decisions of this Court, it was held that a discrepancy would  be  minor  if
it did not affect the substratum of the prosecution’s case or impact on  the
core issue. In such an event, the minor discrepancy could be ignored.
      As far as we are concerned,  whether  the  absence  of  the  Rs.  10/-
currency note could or could not be explained or  why  Syed  Ahmed’s  wallet
was not sent for forensic examination or whether he was wearing trousers  or
a lungi at the relevant point of time are matters of minor detail  which  do
not impact on the substratum of the prosecution’s case. We are  required  to
look at the core issue and  at  the  overall  picture  of  the  events  that
transpired on 28th June, 1993 and not get diverted  by  minor  discrepancies
or trivialities.
      It is while undertaking this exercise that we find from  the  evidence
of the witnesses that there was sufficient evidence of Syed Ahmed  demanding
illegal gratification from Nagaraja and  receiving  and  accepting  it  when
given by him. On this basis,  we  find  no  reason  to  interfere  with  the
judgment and order under appeal.
      With regard to the sentence awarded to Syed Ahmed, the High Court  has
erred in awarding a sentence of only  three  months  rigorous  imprisonment.
Section 13(2)  of  the  Act  prescribes  a  minimum  sentence  of  one  year
imprisonment. However, the State has not appealed  against  the  quantum  of
sentence. Moreover, the incident is of 1993, which is about  19  years  ago.
Keeping these factors in mind, we do  not  propose  to  interfere  with  the
sentence awarded.
      The appeal is dismissed.

                                                           ….…….……………………..J.
                                        (A.K. Patnaik)


                                                           ….…….……………………..J.
New Delhi;                                   (Madan B. Lokur)
July 31, 2012