Whether the injunction decree obtained by one of the paterner of partner ship deed agaonst the other partner , can be executed by and against the legal heirs of parties to the decree on dissolution of the death of one of the partner after sufferring a decree? - No- Section 42 of the Partnership Act, 1932, deals with the situations of dissolution of partnership, on happening of certain contingencies. As per the said provision, subject to contract between the partners, a firm is dissolved when: (c) by the death of a partner; and In the case on hand, as much as there were only two partners, the partnership itself stand dissolved, in view of death of a partner. It is true that as per the deed of partnership, the partners have agreed, in the event of death of either party, their respective legal representatives shall automatically become partners in the partnership firm and they shall continue to act as partners of the firm, till the venture envisaged under said partnership is completed and such legal representatives who become partners shall have the same rights and shall be subject to same liabilities and responsibilities, as the deceased partner. When the partnership stands dissolved by operation of law under Section 42(c) of the Indian Partnership Act, 1932, the question of execution in pursuance of the decree does not arise. There cannot be any contract unilaterally without acceptance and agreement by the legal heirs of the deceased partner. If there are any clauses in the agreement, entered into between the original partners, against the third parties, such clauses will not bind them, such of the clauses in the partnership deed, which run contrary to provisions of Indian Partnership Act, 1932, are void and unenforceable. Such clauses are also opposed to public policy. In the case on hand, the original decree was obtained against the predecessor of the respondents, who was party to partnership deed. In view of death of one of the partners, the partnership itself stands dissolved statutorily, by operation of law, in view of provision under Section 42(c) of the Indian Partnership Act, 1932. When the respondents are not parties to the partnership firm, they are not bound by the decree obtained by the predecessor of the appellant.

Whether the injunction decree obtained by one of the paterner of partner ship deed agaonst the other partner , can be executed by and against the legal heirs of parties to the decree on dissolution of the death of one of the partner after sufferring a decree? - No-
Section 42 of the Partnership Act, 1932, deals with the situations of
dissolution of partnership, on happening of certain contingencies. 
As per the said provision, subject to
contract between the partners, a firm is dissolved
when:
(c) by the death of a partner; and
In the case on hand, as much as there were only two partners, the partnership itself stand
dissolved, in view of death of a partner.
It is true that as per the deed of partnership, the partners have agreed, in the event of death of
either party, their respective legal representatives shall automatically become partners in the
partnership firm and they shall continue to act as partners of the firm, till the venture envisaged
under said partnership is completed and such legal representatives who become partners shall have the same rights and shall be subject to same liabilities and responsibilities, as the deceased partner.
When the partnership stands dissolved by operation of law under Section 42(c) of the Indian
Partnership Act, 1932, the question of execution in pursuance of the decree does not arise. There cannot be any contract unilaterally without acceptance and agreement by the legal heirs of the deceased partner. If there are any clauses in the agreement, entered into between the original partners, against the third parties, such clauses will not bind them, such of the clauses in the partnership deed, which run contrary to provisions of Indian Partnership Act, 1932, are void and unenforceable. Such clauses are also opposed to public policy.

In the case on hand, the original decree was obtained against the predecessor of the respondents, who was party to partnership deed. In view of death of one of the partners, the partnership itself stands dissolved statutorily, by operation of law, in view of provision under Section 42(c) of the Indian
Partnership Act, 1932. When the respondents are not parties to the partnership firm, they are not bound by the decree obtained by the predecessor of the appellant.

C.A. No.3311 of 2015 1

 REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.3311 OF 2015
S.P. Misra & Ors. ...Appellants
Versus
Mohd. Laiquddin Khan & Anr. ...Respondents
J U D G M E N T
R.Subhash Reddy,J.
1. This civil appeal is filed by the appellants,
in Civil Revision Petition No. 4894 of 2006, dated
09.04.2009, passed by the High Court of Judicature,
Andhra Pradesh at Hyderabad, whereby the High Court
has confirmed the order dated 01.02.2006, in E.A.
No. 6 of 2005 in E.P. No. 122 of 2003 in O.S. No.
580 of 1980, passed by the II Senior Civil Judge,
City Civil Court, Hyderabad.
C.A. No.3311 of 2015 2

2. By the aforesaid order, learned II Senior Civil
Judge, City Civil Court, Hyderabad, allowed the
application filed by the respondents, under Section
47 of the Code of Civil Procedure, 1908 (for short,
‘C.P.C.’).
3. All the appellants herein are legal heirs of
late Sri Jai Narayan Misra and all the respondents
herein are legal heirs of late Smt. Hashmatunnisa
Begum. During the life time of late Sri Jai Narayan
Misra and late Smt. Hashmatunnisa Begum, they
entered into a partnership deed dated 14.04.1982. As
stated in the partnership deed, late Smt.
Hashmatunnisa Begum is the owner of open land with
structures, situated in Paigah Compound bearing No.
156-159 ad-measuring 22,253 square meters
approximately. After obtaining exemption from
Government of India, Ministry of Defence, New Delhi,
under Clause 20(1)(b) of the Urban Land (Ceiling and
Regulation) Act, 1976, both the partners have
entered into partnership, for carrying on business
in real estate, by developing the land which forms
the part of Paigah Compound. It appears that a major
portion of the land is already developed, but
C.A. No.3311 of 2015 3

dispute is to an extent of 3381 square meters, which
is claimed by the original plaintiff, forming part
of property No.156-159 of Paigah Compound. There
were only two partners, as per the partnership deed.
4. The plaintiff in Original Suit No. 580 of 1988,
filed by late Sri Jai Narayan Misra, died on
04.01.2001, whereas the predecessor of the
respondents, late Smt. Hashmatunnisa Begum, died on
17.05.1996. During the life time, the predecessor of
the appellants late Sri Jai Narayan Misra, has filed
a Suit in O.S No. 580 of 1988, on the file of II
Additional Judge, City Civil Court, Hyderabad,
claiming the following reliefs:
“1. to grant permanent injunction
against the defendant restraining the
defendant and all the persons
claiming through the defendant from
preventing the plaintiff from
carrying out the work of preparing
layout plan, developing the property
and sale thereof, in an extent of
3,381 square meters;
2. to grant mandatory injunction
directing the defendant to sign the
layout and other documents
submitting to the Cantonment Board
for sanction in respect of the land
admeasuring 3,381 square meteres
forming part of Paigah Colony
situated at S.P. Road, Secunderabad,
and for costs.”
C.A. No.3311 of 2015 4

5. The said Suit was decreed on 14.07.1993, by the
Trial Court, granting the following reliefs:
“1. the defendant and all the
persons claiming through the
defendant be and that are hereby
permanently restrained from carrying
the work of developing the property
and sale thereof in respect of the
suit schedule property;
2. the defendant is hereby directed
to sign the layout plan and other
documents for submitting to the
Cantonment Board, Secunderabad for
sanction in respect of the suit
schedule property;
3. Each party shall bear their own
costs.”
6. After death of the original plaintiff, the legal
heirs of the plaintiffs have filed Execution
Petition before the Trial Court, by claiming the
following reliefs:
“1. to direct the J.Dr. No.2 to 4 to
sign the layout plan for submitting
to the Cantonment Board, Secunderabad
for sanction in respect of the suit
schedule property;
2. to sign new/revised layout
drawing, earmarking the additional
land for development;
3. to break the existing boundary
wall at the appropriate place to
enable to have access into the
additional land for which layout plan
is being submitted;
C.A. No.3311 of 2015 5

4. to sign a letter to Cantonment
Board, undertaking not to claim any
water connection for the next 10
years;
5. to sign all other documents that
may be required now or in future in
connection with the development of
the additional land;
6. to join in executing sale deeds
and present the memo for
registration, in favour of purchasers
of the suit land, all under Order XXI
Rules 32 and 34 and Section 151
C.P.C.”
7. In the following Execution Petition, respondents
have filed an application under Section 47 of
C.P.C., in E.A. No. 6 of 2005, before the Court of
II Senior Civil Judge, City Civil Court, Hyderabad,
claiming the relief, to dismiss the Execution
petition, as the decree is void and un-executable.
By a well reasoned Order, dated 01.02.2006, passed
by the II Senior Civil Judge, City Civil Court,
Hyderabad, allowed the application filed under
Section 47 of C.P.C. The said Order is challenged by
the respondents, by way of Civil Revision Petition
No. 4894 of 2006, before the High Court of
Judicature, Andhra Pradesh at Hyderabad. The High
Court, vide impugned order, confirmed the Order
C.A. No.3311 of 2015 6

passed by the Trial Court, holding that the decree
obtained against the predecessors of the
respondents, namely, late Smt. Hashmatunnisa Begum,
is not executable against the legal representatives.
8. We have heard Sri. A.Subba Rao, learned counsel
appearing for the appellants and Sri. B. Adi
Narayana Rao, learned senior counsel appearing for
the respondents, assisted by Sri. Venkateswara Rao
Anumolu, Advocate on-record.
9. It is contended by Sri. A.Subba Rao, learned
counsel appearing for the appellants that as per the
terms of the partnership deed, in the event of death
of either of the party, their legal representatives
shall automatically become partners in the
partnership firm and they shall continue to act as
partners of the firm till the venture envisaged
under partnership is completed and such legal
representatives, who become partners, shall have
same rights and shall be subject to same liabilities
and responsibilities, as the deceased partner. The
relevant clauses of the partnership deed dated
14.04.1982, read as under:
C.A. No.3311 of 2015 7

“This partnership shall not be
dissolved till the completion of the
venture except by mutual agreement
reduced in writing.
The parties hereby expressly and
specifically agree that in the event
of death of either party their
respective legal representatives
shall automatically become partners
in the partnership firm and they
shall continue to act as partners of
the firm till the venture envisaged
under this partnership is completed
and such legal representatives who
become partners shall have the same
rights and shall be subject to the
same liabilities and responsibilities
as the deceased partner.”
10. By referring to the contents of the partnership
deed, it is contended by Sri. A. Subba Rao, learned
counsel appearing for the appellants that the decree
obtained by the predecessor of the appellants is
executable and against the respondents, who are the
legal representatives of the original partner. The
Trial Court as well as the High Court have
erroneously held that the decree which has become
final, is not executable against the respondents.
11. Learned counsel has placed strong reliance on a
judgment of this Court, in the case of Prabhakara
Adiga v. Gowri and Others1.
1 (2017) 4 SCC 97
C.A. No.3311 of 2015 8

12. On the other hand, it is the contention of Sri.
B. Adi Narayana Rao, learned senior counsel
appearing for the respondents that as there were
only two partners and on death of one of the
partners, partnership stands dissolved, in view of
the provision under Section 42(c) of the Partnership
Act, 1932. It is submitted that when the right
litigated upon is readable, only in such event,
decree can be executed. It is submitted that
respondents were not the partners in the partnership
deed and if, any clause in the partnership deed
which runs contrary to statutory provisions are
void, such clauses are against the public policy. It
is submitted that when the partnership itself stands
dissolved on death of one of the partners, the
appellants claiming right under a decree obtained by
the original partner, cannot be executed against the
respondents.
13. In this case, it is not in dispute that as per
the original partnership deed there were only two
partners, namely, late Smt. Hashmatunnisa Begum, who
is the owner of the land/predecessor of the
C.A. No.3311 of 2015 9

respondents and late Sri Jai Narayan Misra, who is
the predecessor of the appellants herein.
14. From the Suit filed in O.S. No. 580 of 1988, the
original plaintiff has obtained a decree on
14.07.1993 from the Trial Court, which granted the
reliefs as under:
“1. the defendant and all the persons
claiming through the defendant be and
that are hereby permanently
restrained from carrying the work of
developing the property and sale
thereof in respect of the suit
schedule property;
2. the defendant is hereby directed
to sign the layout plan and other
documents for submitting to the
Cantonment Board, Secunderabad for
sanction in respect of the suit
schedule property;
3. Each party shall bear their own
costs.”
15. From a perusal of the relief sought for in the
Execution Petition, by the legal heirs of the
original plaintiff, itself makes it clear that
reliefs sought in Execution Petition are going
beyond the scope of the decree. It is fairly wellsettled that, the Executing Court cannot travel
beyond the decree. The only question which fell for
consideration before the Trial Court in E.A. No. 6
C.A. No.3311 of 2015 10

of 2005, was whether the decree obtained by the
predecessor of the appellants, can be executed
against the appellants or not. Section 42 of the
Partnership Act, 1932, deals with the situations of
dissolution of partnership, on happening of certain
contingencies. As per the said provision, subject to
contract between the partners, a firm is dissolved
when:
(a) if constituted for a fixed term, by the expiry
of that term;
(b) if constituted to carry out one or more
adventures or undertakings, by the completion
thereof;
(c) by the death of a partner; and
(d) by the adjudication of a partner as an
insolvent.
16. In the case on hand, as much as there were only
two partners, the partnership itself stand
dissolved, in view of death of a partner.
17. It is true that as per the deed of partnership,
the partners have agreed, in the event of death of
either party, their respective legal representatives
shall automatically become partners in the
C.A. No.3311 of 2015 11

partnership firm and they shall continue to act as
partners of the firm, till the venture envisaged
under said partnership is completed and such legal
representatives who become partners shall have the
same rights and shall be subject to same liabilities
and responsibilities, as the deceased partner.
18. At this stage, it is to be noticed that once the
partnership comes to an end, by virtue of death of
one of the partners, there will not be any
partnership existing in which legal representatives
of late Smt. Hashmatunnisa Begum could be taken in.
The judgment and decree obtained by late Sri Jai
Narayan Misra against late Smt. Hashmatunnisa Begum,
in pursuance of partnership deed dated 14.04.1982,
cannot bind the legal representatives of late Smt.
Hashmatunnisa Begum, as such, decree is not
executable against them. The legal representatives
of late Smt. Hashmatunnisa Begum are not the
partners of the original partnership deed dated
14.04.1982. When such legal representative are not
parties to the contract, such contract cannot confer
rights or impose obligations arising under it on any
third party, except parties to it. No one but the
C.A. No.3311 of 2015 12

parties to the contract can be entitled under it or
born by it. Such principle is known as ‘Privity of
Contract’. When the partnership stands dissolved by
operation of law under Section 42(c) of the Indian
Partnership Act, 1932, the question of execution in
pursuance of the decree does not arise. There cannot
be any contract unilaterally without acceptance and
agreement by the legal heirs of the deceased
partner. If there are any clauses in the agreement,
entered into between the original partners, against
the third parties, such clauses will not bind them,
such of the clauses in the partnership deed, which
run contrary to provisions of Indian Partnership
Act, 1932, are void and unenforceable. Such clauses
are also opposed to public policy.
19. In the case of Prabhakara Adiga v. Gowri and
Others1, on which strong reliance is placed by Sri.
A.Subba Rao, learned counsel appearing for the
appellants, would not render any assistance to
support his case, having regard to facts of the case
on hand and the rights litigated in the Suit in O.S.
No. 580 of 1988, before the II Senior Civil Judge,
City Civil Court, Hyderabad. In the case of
C.A. No.3311 of 2015 13

Prabhakara Adiga1, plaintiff was allotted suit
scheduled property in a registered partnership deed
and he was in possession thereof. The defendant, on
partition in the family, had been allotted a portion
of the land. When there was interference on the suit
scheduled property, which fell to the share of
plaintiff, as per the registered partnership deed, a
suit for permanent injunction was filed.
20. In the aforesaid case, after suffering decree
for permanent injunction, judgment-debtor died. When
the heirs of the judgment-debtor in violation of the
decree for permanent injunction tried to forcibly
dispossesess the decree-holder, decree-holder filed
the Execution Petition. The Executing Court held
that heirs of the judgment-debtor were not bound by
the decree. When such order is questioned before the
High Court, the Writ Petition is allowed. The High
Court held that decree of permanent injunction
cannot be enforced against the legal heirs of
judgment-debtor, as an injunction does not travel
with the land. This Court, by referring to provision
under Section 50 of C.P.C. read with Order 21 Rule
32 of C.P.C, has held that such a decree can be
C.A. No.3311 of 2015 14

executed against the legal representatives. But, at
the same time, the paragraph 25 of the judgment,
which is relied on by Sri. B. Adi Narayana Rao,
learned senior counsel appearing for the
respondents, reads as under:
“25. In our considered opinion the
right which had been adjudicated in
the suit in the present matter and
the findings which have been recorded
as basis for grant of injunction as
to the disputed property which is
heritable and partible would enure
not only to the benefit of the legal
heir of decree-holders but also would
bind the legal representatives of the
judgment-debtor. It is apparent from
Section 50 CPC that when a judgmentdebtor dies before the decree has
been satisfied, it can be executed
against legal representatives.
Section 50 is not confined to a
particular kind of decree. Decree for
injunction can also be executed
against legal representatives of the
deceased judgment-debtor. The maxim
“actio personalis moritur cum
persona” is limited to certain class
of cases as indicated by this Court
in Girijanandini Devi v. Bijendra
Narain Choudhary [Girijanandini Devi
v. Bijendra Narain Choudhary, AIR
1967 SC 1124] and when the right
litigated upon is heritable, the
decree would not normally abate and
can be enforced by legal
representatives of decree-holder and
against the judgment-debtor or his
legal representatives. It would be
against the public policy to ask the
decree-holder to litigate once over
C.A. No.3311 of 2015 15

again against the legal
representatives of the judgmentdebtor when the cause and injunction
survives. No doubt, it is true that a
decree for injunction normally does
not run with the land. In the absence
of statutory provisions it cannot be
enforced. However, in view of the
specific provisions contained in
Section 50 CPC, such a decree can be
executed against legal
representatives.”
21. From a reading of the aforesaid judgment, it is
clear that the executable decree depend on the
rights litigated by the parties. In the case on
hand, the original decree was obtained against the
predecessor of the respondents, who was party to
partnership deed. In view of death of one of the
partners, the partnership itself stands dissolved
statutorily, by operation of law, in view of
provision under Section 42(c) of the Indian
Partnership Act, 1932. When the respondents are not
parties to the partnership firm, they are not bound
by the decree obtained by the predecessor of the
appellant. More so, when it is a case of the
respondents that they have not derived any assets
and liabilities arising out of the partnership firm,
C.A. No.3311 of 2015 16

decree obtained by the original plaintiff is not
executable against the respondents.
22. It is also to be noticed that during the life
time of late Smt. Hashmatunnisa Begum, she also
filed Suit in O.S. No. 1061 of 1990 on the file of
VII Senior Civil Judge, City Civil Court, Hyderabad,
for dissolution of partnership firm constituted
under deed of partnership dated 26.06.1977 and also
for rendition of accounts. It is true that same is a
different partnership but, parties are same. In such
suit filed by late Smt.Hashmatunnisa Begum,
predecessor of the appellants Late Sri Jai Narayan
Misra, filed IA No. 1649 of 1997, to dismiss the
said suit, claiming that in view of death of one of
the partners, during the pendency of the suit, there
is no room for third party to be introduced. It was
the case of late Sri Jai Narayan Misra that
partnership stood dissolved. However, in a similar
situation arising out of partnership deed dated
14.04.1982, the appellants claim the decree is
executable against the respondents, who are the
legal heirs of the judgment-debtor. As much as, we
are of the view that the respondents were not
C.A. No.3311 of 2015 17

parties to the partnership deed and that the
partnership stands dissolved, in view of death of
one of the partners, the respondents have not
derived the benefit of assets of the partnership
firm, the decree obtained by the predecessor of the
appellants, is not executable against the
respondents herein.
23. In view of the same, we are of the view that the
Trial Court has rightly allowed the application
filed by the respondents under Section 47 of C.P.C.
and there is no error committed by the High Court,
in confirming such order by dismissing the Civil
Revision Petition filed by the appellants herein.
24. We do not find any merit in this appeal so as to
interfere in the impugned well reasoned order.
25. This civil appeal is, accordingly, dismissed,
with no order as to costs.
 ...................J.
 [Indu Malhotra]
 ....................J.
 [R. Subhash Reddy]
New Delhi;
 October 18,2019

mere scolding as "Call Girl "is not amounts to abetment to committ sucide - Accused are entitled for discharge the High Court by recording a finding that terming the deceased as a call-girl, there was no utterance which can be interpreted to be an act of instigating, goading or solicitation or insinuation, the deceased to commit suicide. By referring to the case law decided by this Court wherein similar utterances like, “to go and die” does not constitute an offence for abetment, allowed the application filed by the respondents. It is observed in the order that the act or conduct of the accused, however insulting and abusive, will not by themselves suffice to constitute abetment of commission of suicide, unless those are reasonably capable of suggesting that the accused intended by such acts, the consequence of suicide. By discussing the case law on the subject, the High Court allowed the application by setting aside the order of the Trial Court and discharged the respondents-accused from the charge.

mere scolding as "Call Girl "is not  amounts to abetment to committ sucide - Accused are entitled for discharge
the High Court by recording a finding that terming the deceased as a call-girl,
there was no utterance which can be interpreted to be an act of instigating, goading or solicitation or
insinuation, the deceased to commit suicide. By referring to the case law decided by this Court wherein similar utterances like, “to go and die” does not constitute an offence for abetment, allowed the application filed by the respondents. It is observed in the order that the act or conduct of the accused, however insulting and abusive, will not by themselves suffice to constitute abetment of commission of suicide, unless those are reasonably capable of suggesting that the accused intended by such acts, the consequence of suicide. 
By discussing the case law on the subject, the High Court allowed the application by
setting aside the order of the Trial Court and discharged the respondents-accused from the charge.


Crl.A.No.2181 of 2009
1
 REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 2181 OF 2009
State of West Bengal ...Appellant
Versus
Indrajit Kundu & Ors. ...Respondents
J U D G M E N T
R.Subhash Reddy,J.
1. This appeal is preferred by the State of West
Bengal through Principal Secretary, Home Department,
aggrieved by the judgment and order dated 30.07.2019
passed by the High Court at Calcutta in C.R.R.No.3473
of 2008.
2. By the impugned order, the respondents-accused
were discharged of the charge framed against them under
Section 306 read with Section 34 of Indian Penal Code.
The victim, daughter of the de facto complainant was a
Crl.A.No.2181 of 2009
2
painter and artist. To improve her proficiency in
English, first respondent was appointed as her English
teacher. Respondent Nos. 2 and 3 are his parents.
There developed intimacy between the victim and first
respondent – Indrajit in course of coaching. It is the
allegation of the complainant that as the deceased
victim and first respondent had decided to marry, to
finalise the proposal of marriage the victim had gone
to the house of first respondent on 05.03.2004. It is
alleged that when the victim went to the house of
first respondent, respondent Nos. 2 and 3 who are the
parents of the first respondent came out to raise
shouts and addressed the victim as a call-girl. The
words uttered by respondent Nos. 2 and 3, as per the de
facto complainant are “you are a call-girl, why my son
would marry you, we would give our son in marriage
elsewhere”. It is alleged in the complaint that at
that time, first respondent did not protest against
the version of his parents and his daughter returned
home and became mentally perturbed. On 06.03.2004 at
about 1.00 p.m. the victim had committed suicide.
3. On the complaint of the de facto complainant, a
case was registered in Jorabagan Police Station against
Crl.A.No.2181 of 2009
3
respondents under Section 306 IPC and thereafter
charge-sheet was filed.
4. There were two suicide notes. In one suicide note,
the deceased has stated that parents of first
respondent abused her in silly words by calling her a
call-girl. In another note, which was addressed to
the first respondent, has stated that the father of
first respondent stigmatized her as a call-girl and
first respondent has not responded to such utterances.
Further it is stated that first respondent is a
coward. After conducting investigation, charge-sheet
was filed under Section 306/34 IPC against all the
three accused. Case was committed to the 7th Fast Track
Court, Sessions Court, Calcutta, numbered as Sessions
Case No.11 of 2006.
5. Accused-respondents earlier filed application for
discharge, the same was rejected by the Trial Court by
order dated 19.04.2007. Thereafter, respondents have
filed an application under Section 482 Cr.P.C. before
the High Court in C.R.R.No.1817 of 2007 which was
disposed of with the direction to respondents-accused
to raise all the points before the learned Trial Court.
At the stage of framing of charges respondents have
raised objections claiming that no case is made out
Crl.A.No.2181 of 2009
4
against them to frame charge for the alleged offence
under Section 306/34 IPC. The learned Additional
District and Sessions Judge by order dated 04.09.2008
overruled the objections of the respondents observing
that as there is a probability of accused being
convicted, charge can be framed. It is observed in the
order that there is a reasonable likelihood for accused
persons to be convicted under Section 306 IPC. Against
the said order, respondents have approached the High
Court again under Section 401/482 Cr.P.C. in
C.R.R.No.3473 of 2008.
6. By the impugned order, the High Court by recording
a finding that terming the deceased as a call-girl,
there was no utterance which can be interpreted to be
an act of instigating, goading or solicitation or
insinuation, the deceased to commit suicide. By
referring to the case law decided by this Court wherein
similar utterances like, “to go and die” does not
constitute an offence for abetment, allowed the
application filed by the respondents. It is observed
in the order that the act or conduct of the accused,
however insulting and abusive, will not by themselves
suffice to constitute abetment of commission of
suicide, unless those are reasonably capable of
Crl.A.No.2181 of 2009
5
suggesting that the accused intended by such acts, the
consequence of suicide. By discussing the case law on
the subject, the High Court allowed the application by
setting aside the order of the Trial Court and
discharged the respondents-accused from the charge.
7. We have heard Sri Suhaan Mukerji, learned counsel
appearing for the State of West Bengal and Sri Pijush
Roy, learned counsel appearing for respondents.
8. In this appeal mainly it is contended by the
learned counsel for the appellant-State that the de
facto complainant has appointed first respondent as an
English teacher to improve the English of the deceased
victim. The victim used to visit the house of accused
No.1 and developed intimacy and relationship. It is
submitted that on 05.03.2004, when the victim visited
the accused for finalizing the date of marriage,
respondent Nos. 2 and 3 who are parents of accused No.1
have shouted and called the victim a call-girl. The
victim was disturbed and she returned home and her
sister tried to console her by telling her that they
will speak to the accused so that their marriage would
take place. It is submitted that on next day i.e.
06.03.2004, she committed suicide by hanging. It is
submitted that from suicide notes, it is clear that
Crl.A.No.2181 of 2009
6
respondents who are the accused are responsible for
suicide of the victim girl. It is submitted that by
their conduct and utterances they have abetted the
crime, as such they were rightly charged for the
offence under Section 306/34 IPC. It is submitted that
there is sufficient material to frame charge against
the respondents. In spite of the same, without
considering the material on record, the High Court has
allowed the application filed by the respondents. The
learned counsel for the State in support of his
arguments placed reliance on the judgment in the cases
of Soma Chakravarty vs. State1 and Union of India
vs. Prafulla Kumar Samal2.
9. On the other hand, in response, learned counsel
appearing for the accused-respondents submitted that
during the pendency of this appeal, the second
respondent passed away, as such appeal stands abated so
far as he is concerned. Further, it is stated that as
there is no material to frame charge against the
respondents for offence under Section 306/34 IPC, the
High Court by well-reasoned order has allowed their
application and no grounds to interfere with the same.
1 (2007) 5 SCC 403
2 (1979) 3 SCC 4.
Crl.A.No.2181 of 2009
7
10. Having heard learned counsel on both the sides, we
have perused the impugned order passed by the High
Court and other material placed on record.
11. From the material placed on record, it is clear
that respondents are sought to be proceeded for charge
under Section 306/34 mainly relying on the suicide
letters written by the deceased girl and the statements
recorded during the investigation. Even according to
the case of de facto complainant, respondent Nos. 2 and
3 who are parents of first respondent shouted at the
deceased girl calling her a call-girl. This happened
on 05.03.2004 and the deceased girl committed suicide
on 06.03.2004. By considering the material placed on
record, we are also of the view that the present case
does not present any picture of abetment allegedly
committed by respondents. The suicide committed by the
victim cannot be said to be the result of any action on
part of respondents nor can it be said that commission
of suicide by the victim was the only course open to
her due to action of the respondents. There was no
goading or solicitation or insinuation by any of the
respondents to the victim to commit suicide. In the
case of Swamy Prahaladdas vs. State of M.P. and Anr.
3
3 1995 Supp (3) SCC 438
Crl.A.No.2181 of 2009
8
this Court while considering utterances like “to go and
die” during the quarrel between husband and wife,
uttered by husband held that utterances of such words
are not direct cause for committing suicide. In such
circumstances, in the aforesaid judgment this Court
held that Sessions Judge erred in summoning the
appellant to face the trial and quashed the
proceedings.
12. In the judgment in the case of Ramesh Kumar vs.
State of Chhattisgarh4 this Court has considered the
scope of Section 306 and the ingredients which are
essential for abetment as set out in Section 107 IPC.
While interpreting the word “instigation”, it is held
in paragraph 20 as under:
“20. Instigation is to goad, urge forward,
provoke, incite or encourage to do “an
act”. To satisfy the requirement of
instigation though it is not necessary that
actual words must be used to that effect or
what constitutes instigation must
necessarily and specifically be suggestive
of the consequence. Yet a reasonable
certainty to incite the consequence must be
capable of being spelt out. The present
one is not a case where the accused had by
his acts or omission or by a continued
course of conduct created such
circumstances that the deceased was left
with no other option except to commit
suicide in which case an instigation may
have been inferred. A word uttered in the
fit of anger or emotion without intending
4 (2001) 9 SCC 618
Crl.A.No.2181 of 2009
9
the consequences to actually follow cannot
be said to be instigation.”
13. Similarly in the judgment in the case of Sanju
Alias Sanjay Singh Sengar vs. State of M.P.5 when any
quarrel which has taken place between husband and wife
in which husband has stated to have told the deceased
”to go and die”, this Court has held that the suicide
committed two days thereafter was not proximate to the
quarrel though the deceased was named in the suicide
note and that the suicide was not the direct result of
quarrel when the appellant used abusive language and
told the deceased to go and die. Judgments referred
above support the case of respondents, except stating
that on 05.03.2004 when the deceased went to the
premises of first respondent, his parents who are
respondent Nos. 2 and 3 addressed her as a call-girl.
At the same time by applying the judgments referred
above we are of the view that such material is not
sufficient to proceed with the trial by framing charge
of offence under Section 306/34 IPC. It is also clear
from the material that there was no goading or
solicitation or insinuation by any of the respondents
to the victim to commit suicide.
5 (2002) 5 SCC 371
Crl.A.No.2181 of 2009
10
14. Learned counsel appearing for the appellant-State
has placed reliance on the judgment in the case of Soma
Chakravarty (supra), wherein this Court has held that
when there is material to show that accused might have
committed offence it can frame charge and the probative
value of the material on record cannot be gone into at
the stage, before the Trial Court.
15. Reliance is placed on the judgment in the case of
Union of India vs Prafulla Kumar Samal (supra), where
this Court has held that the Judge while considering
the question of framing the charges has the undoubted
power to sift and weigh the evidence for the limited
purpose of finding out whether or not a prima facie
case against the accused has been made out.
16. The judgment relied on by learned counsel for the
State in the case of Chitresh Kumar Chopra vs. State
(NCT) of Delhi6, this Court has held that where the
accused by his acts or by a continued course of conduct
creates such circumstances that the deceased was left
with no other option except to commit suicide, an
“instigation” may be inferred. To draw the inference
of instigation it all depends on facts and
circumstances of the case, whether the acts committed
6 (2009) 16 SCC 605
Crl.A.No.2181 of 2009
11
by the accused will constitute direct or indirect act
of incitement to the commission of suicide is a matter
which is required to be considered in facts and
circumstances of each case. As such we are of the view
that the judgments relied on by the learned counsel for
the State would not assist in supporting his arguments.
17. For the aforesaid reasons, we do not find any
merit in this appeal so as to interfere with the well
reasoned judgment of the High Court. Accordingly, this
appeal is dismissed.
 ...................J.
 [Indu Malhotra]
 .................J.
 [R. Subhash Reddy]
New Delhi;
October 18, 2019

Whether the Service of notice under sec.143[2] which was issued with in time , on the assessee is immeterial ? = Once the notice is sent within the period prescribed in the proviso to Section 143(2) of the 1961 Act, in that case, actual service of the notice upon the assessee thereafter would be immaterial. notice under Section 143(2) of the 1961 Act was sent by the Assessing Officer to the assessee at the address as mentioned in the PAN database on 05.10.2007 and the same was within the time limit prescribed in proviso to Section 143(2) of the 1961 Act. However, it was the case on behalf of the assessee that the said notice was not served upon the assessee as the assessee changed its name and address and shifted to new address prior thereto and therefore the said notice was not served upon the assessee and by the time when subsequently the notices were served upon the assessee, notice under Section 143(2) of the 1961 Act was barred by the period prescribed in proviso to Section 143(2) of the 1961 Act and therefore the assessment order is bad in law. It was the case on behalf of the assessee that vide communication dated 06.12.2005 the assessee intimated to the Assessing Officer about the new address and despite the same the Assessing Officer sent the notice at the old address. However, it is required to be noted that the alleged communication dated 06.12.2005 is not forthcoming. Neither the same was produced before the Assessing Officer nor even the same has been produced before this Court. In the affidavit also, filed in compliance with order dated 21.08.2019, the assessee has stated that the alleged communication dated 06.12.2005 is not available. Thus, the assessee has failed to prove the alleged communication dated 06.12.2005. The only document available is Form No.18 filed with the ROC. Filing of Form­18 with the ROC cannot be said to be an intimation to the Assessing Officer with respect to intimation of change in address. It appears that no application was made by the assessee to change the address in the PAN data base and in the PAN database the old address continued. Therefore, in absence of any intimation to the Assessing Officer with respect to change in address, the Assessing Officer was justified in issuing the notice at the address available as per the PAN database. Therefore, the Assessing Officer cannot be said to have committed any error and in fact the Assessing Officer was justified in sending the notice at the address as per the PAN database. If that is so, the notice dated 05.10.2007 can be said to be within the period prescribed in proviso to Section 143(2) of the 1961 Act. Once the notice is issued within the period prescribed as per the proviso to Section 143(2) of the Act, the same can be said to be sufficient compliance of Section 143(2) of the 1961 Act. Once the notice is sent within the period prescribed in the proviso to Section 143(2) of the 1961 Act, in that case, actual service of the notice upon the assessee thereafter would be immaterial. In a given case, it may happen that though the notice is sent within the period prescribed, the assessee may avoid actual service of the notice till the period prescribed expired. Even in the relied upon case by the learned Senior Advocate for the assessee in the case of Hotel Blue Moon (supra), it is observed that the Assessing Officer must necessarily issue notice under Section 143(2) of the 1961 Act within the time prescribed in the proviso to Section 143(2) of the 1961 Act. Once the notice is issued within the period prescribed as per the proviso to Section 143(2) of the Act, the same can be said to be sufficient compliance of Section 143(2) of the 1961 Act. Once the notice is sent within the period prescribed in the proviso to Section 143(2) of the 1961 Act, in that case, actual service of the notice upon the assessee thereafter would be immaterial. Therefore, in the facts and circumstances of the case, the High Court is not justified in dismissing the appeal and confirming the orders passed by the learned C.I.T (Appeals) and the I.T.A.T. setting aside the assessment order solely on the ground that the assessment order is bad in law on the ground that subsequent service of notice upon the assessee under Section 143(2) of the 1961 Act was beyond the time prescribed in the proviso to Section 143(2) of the 1961 Act.

Whether the Service of notice under sec.143[2] which was issued with in time , on the assessee is immeterial ?
= Once the notice is sent within the period prescribed in the proviso to Section 143(2) of the 1961 Act, in that case, actual service of the notice upon the assessee thereafter would be immaterial.
notice under Section 143(2) of the 1961 Act was sent by the Assessing Officer
to the assessee at the address as mentioned in the PAN database on 05.10.2007 and the same was within the time limit prescribed in proviso to Section 143(2) of the 1961 Act.  
However, it was the case on behalf of the assessee that the said notice was not served
upon the assessee as the assessee changed its name and address and shifted to new address prior thereto and therefore the said notice was not served upon the assessee and by the time when
subsequently the notices were served upon the assessee, notice under Section 143(2) of the 1961 Act was barred by the period prescribed   in   proviso   to   Section   143(2)   of   the   1961   Act   and
therefore the assessment order is bad in law.  
It was the case on behalf of the assessee that vide communication dated 06.12.2005
the assessee intimated to the Assessing Officer about the new address and  despite the same the  Assessing Officer  sent  the notice at the old address.  However, it is required to be noted that
the alleged communication dated 06.12.2005 is not forthcoming. Neither the same was produced before the Assessing Officer nor even the same has been produced before this Court.   In the
affidavit also, filed in compliance with order dated 21.08.2019, the assessee has stated that the alleged communication dated 06.12.2005 is not available.   Thus, the assessee has failed to prove the alleged communication dated 06.12.2005.   The only document available is Form No.18 filed with the ROC.  Filing of Form­18 with the ROC cannot be said to be an intimation to the
Assessing Officer with respect to intimation of change in address. 
It   appears   that   no   application   was   made   by   the   assessee   to change   the   address   in   the   PAN   data   base   and   in   the   PAN database the old address continued.  Therefore, in absence of any intimation to the Assessing Officer with respect to change in address, the Assessing Officer was justified in issuing the notice
at the address available as per the PAN database.  Therefore, the Assessing Officer cannot be said to have committed any error and in fact the Assessing Officer was justified in sending the notice at
the address as per the PAN database.   
If that is so, the notice dated 05.10.2007 can be said to be within the period prescribed
in proviso to Section 143(2) of the 1961 Act.  Once the notice is issued within the period prescribed as per the proviso to Section 143(2)   of   the   Act,   the   same   can   be   said   to   be   sufficient
compliance of Section 143(2) of the 1961 Act.  Once the notice is sent within the period prescribed in the proviso to Section 143(2) of the 1961 Act, in that case, actual service of the notice upon
the assessee thereafter would be immaterial.  In a given case, it may happen that though the notice is sent within the period prescribed, the assessee may avoid actual service of the notice till
the period prescribed expired.  
Even in the relied upon case by the learned Senior Advocate for the assessee in the case of Hotel Blue Moon (supra), it is observed that the Assessing Officer must necessarily  issue  notice under Section 143(2) of the 1961 Act within the time prescribed in the proviso to Section 143(2) of the 1961 Act. 
Once the notice is
issued within the period prescribed as per the proviso to Section
143(2)   of   the   Act,   the   same   can   be   said   to   be   sufficient compliance of Section 143(2) of the 1961 Act.  Once the notice is sent within the period prescribed in the proviso to Section 143(2) of the 1961 Act, in that case, actual service of the notice upon the assessee thereafter would be immaterial.
Therefore, in the facts and circumstances of the case, the  High  Court is not  justified  in dismissing  the appeal  and confirming the orders passed by the learned C.I.T (Appeals) and the   I.T.A.T.   setting   aside   the   assessment   order   solely   on   the ground that the assessment order is bad in law on the ground that   subsequent   service   of   notice   upon   the   assessee   under Section 143(2) of the 1961 Act was beyond the time prescribed in the proviso to Section 143(2) of the 1961 Act.

REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.8132 OF 2019
(Arising out of SLP(C) No.3530/2019)
Principal Commissioner of Income Tax,
Mumbai …Appellant
Versus
M/s I­Ven Interactive Limited, Mumbai …Respondent
J U D G M E N T
M.R. SHAH, J.
Leave granted.
2. Feeling aggrieved and dissatisfied with the judgment and
order dated 27.06.2018 passed by the High Court of Judicature
at Bombay in Income Tax Appeal No.94 of 2016, by which the
High   Court   has   dismissed   the   said   appeal   preferred   by   the
Revenue and has confirmed the orders passed by the learned
C.I.T (Appeals) as well as I.T.A.T quashing and setting aside the
assessment order for A.Y. 2006­07, the revenue has preferred the
present appeal.
1
3. That the respondent – assessee filed return of income for
the   Assessment   Year   2006­07   on   28.11.2006   declaring   total
income of Rs.3,38,71,716/­.  The said return was filed under EModule Scheme and thereafter a hard copy of the same was filed
on 05.12.2006.   The return of income was accompanied with
balance   sheet   and   profit   and   loss   account.     The   return   was
processed under Section 143(1) of the Income Tax Act, 1961
(hereinafter referred to as the ‘1961 Act’).   That a notice under
Section 143(2) of the 1961 Act was issued to the respondentassessee on 05.10.2007.  The notice was sent at the assessee’s
address   available   as   per   the   PAN   database.     That   a   further
opportunity   was   provided   to   the   assessee   vide   notice   under
Section 143(2) of the 1961 Act on 25.07.2008.  The said notice
was also issued to the assessee at the available address as per
the PAN database.  That thereafter, further notices under Section
142(1)   of   the   1961   Act   were   issued   to   the   assessee   on
23.01.2008,   25.07.2008   and   05.10.2008   along   with
questionnaires calling for various details and were duly served on
the   respondent­assessee   company.     In   response   to   the   said
notice,   the   representative   of   the   company   appeared   on
28.11.2008 and 04.12.2008.   The assessee participated in the
2
proceedings before the Assessing Officer. However, the assessee
challenged the notice under Sections 143(2) and 142(1) of the
1961 Act on the ground that the said notices were not served
upon the assessee as the assessee­company never received those
notices and the subsequent notices served and received by the
assessee­company   were   beyond   the   period   of   limitation
prescribed under proviso to Section 143 of the 1961 Act.
3.1 That   the   Assessing   Officer   vide   assessment   order   dated
24.12.2008 completed the assessment under Section 143(3) of
the 1961 Act by making disallowance of Rs. 8,91,17,643/­ under
Section 14A of the 1961 Act, read with Rule 8 of the Income Tax
Rules and computed total income at Rs.5,52,45,930/­.
3.2 Being aggrieved by the assessment order dated 24.12.2008,
the assessee preferred appeal before the learned C.I.T (Appeals).
The learned C.I.T (Appeals) allowed the appeal vide order dated
23.12.2010   holding,   inter   alia,   that   the   Assessing   Officer
completed the assessment under Section 143(3) of the 1961 Act,
without assuming valid jurisdiction under Section 143(2) of the
1961 Act, and therefore, the assessment framed under Section
143(3) of the 1961 Act was invalid.  The learned C.I.T (Appeals)
observed that as the subsequent service of notice under Section
3
143(2)   of   the   1961   Act   was   beyond   the   period   of   limitation
prescribed under the proviso to Section 143 of the 1961 Act and
earlier no notices were served upon the assessee and/or received
by the assessee as the same were sent at the old address and in
the   meantime   company­assessee   changed   its   address   and
therefore the assessment order was bad in law.   The Revenue
preferred appeal before the Income Tax Appellate Tribunal, which
came to be dismissed by the learned I.T.A.T. vide order dated
19.01.2015.  The order passed the learned C.I.T (Appeals) as well
as   I.T.A.T.   have   been   confirmed   by   the   High   Court,   by   the
impugned   judgment   and   order.     Hence,   the   Revenue   has
preferred the present appeal.
4. Shri H. Raghavendra Rao, learned Advocate appearing on
behalf   of   the   Revenue   has   vehemently   submitted   that   the
impugned   judgment   and   order   passed   by   the   High   Court
dismissing the appeal  and thereby confirming the orders passed
by   the   learned   C.I.T   (Appeals)   and   I.T.A.T   holding   that   the
assessment order was bad in law, is contrary to the provisions of
Section 143(2) of the 1961 Act.
4.1 It is further submitted that the Assessing Officer sent the
notice under Section 143(2) of the 1961 Act to the assessee at the
4
available address as per the PAN database.  It is submitted that
as such there was no intimation by the assessee to the Assessing
Officer   with   respect   to   change   of   address.     It   is   submitted
therefore that notice under Section 143(2) of the 1961 Act was
sent to the assessee on the available address as per the PAN
database.     It   is   submitted   therefore   that   once   notice   under
Section   143(2)   of   the   1961   Act   was   issued   and   sent   to   the
assessee on the available address as per the PAN database, it can
be said to be a sufficient compliance of the relevant provisions of
the 1961 Act, more particularly Section 143(2) of the 1961 Act.
4.2 It is further submitted that as such the High Court has not
properly   appreciated   the   fact   that   the   alleged   communication
dated 06.12.2005 from the respondent­assessee to the Assessing
Officer intimating new address of the assessee was never received
by the Assessing Officer.  It is submitted that even today also the
assessee is not in a position to produce the said communication.
It is submitted therefore the respondent­assessee has failed to
prove that the alleged communication dated 06.12.2005 was, in
fact, sent to the Assessing Officer, intimating about new address.
4.3 It is further submitted by the learned Advocate appearing on
behalf of the Revenue that, as such, the learned C.I.T (Appeals)
5
has   heavily   relied   upon   the   alleged   communication   dated
06.12.2005 intimating the change of address to the Assessing
Officer   by   the   assessee,   however,   the   communication   dated
06.12.2005 is not forthcoming and has not been produced.  It is
submitted therefore that in the facts and circumstances of the
case the Assessing Officer was justified in sending the notices
under Section 143(2) of the 1961 Act at the available address as
per the PAN database.  It is submitted therefore that the learned
C.I.T (Appeals), I.T.A.T and the High Court have committed a
grave error in holding that the assessment order is bad in law as
the notice under Section 143(2) of the 1961 Act was beyond the
period of limitation.
4.4 It is further submitted  that as such thereafter the assessee
did participate in the assessment proceedings and therefore the
learned C.I.T (Appeals) ought to have considered the appeal on
merits and ought not to have set aside the assessment order
solely on the ground that the assessment order is bad in law.
4.5 Making the above submissions, it is prayed to allow the
present appeal.
5. Shri S.K. Bagaria, learned Senior Advocate appearing on
behalf of the respondent­assessee has made strenuous efforts to
6
support the orders passed by the learned C.I.T (Appeals) and
confirmed by the I.T.A.T. and the High Court.   It is submitted
that as such the Assessing Officer was aware of the new address
of the assessee and therefore the Assessing Officer was required
to send the notices on the new address.   It is submitted that
instead the Assessing Officer sent the notice at the old address
and therefore the same was never served upon the assessee.  It is
submitted that by the time the subsequent notice was served
upon the assessee, the notice under Section 143(2) of the 1961
Act was barred by limitation as provided under Section 143(2) of
the 1961 Act.  Therefore, the learned C.I.T (Appeals), I.T.A.T and
the High Court are right in holding that the assessment order
was bad in law.
5.1 Learned   Senior   Advocate   appearing   on   behalf   of   the
assessee   has   further   submitted   that   as   such   the   change   of
address and change in the name of the assessee­company was
intimated   to   the   Registrar   of   Companies   in   Form­18.     It   is
submitted   therefore   in   fact   the   name   of   the   company   was
changed and the change in the address has been established and
proved.
7
5.2 Shri   Bagaria,   learned   Senior   Advocate   has   further
submitted that the Assessing Officer was in the knowledge of the
new address, which is evident from the fact that the Assessment
Orders for A.Y 2004­05 and A.Y. 2005­06 were sent at the new
address.
5.3 Relying   upon   the   decision   of   this   Court   in   the   case   of
Assistant Commissioner of Income Tax v. Hotel Blue Moon reported
in   (2010)   3   SCC   259,   it   is   submitted   by   the   learned   Senior
Advocate for the assessee that as held by this Court the issuance
of the notice under Section 143(2) of the 1961 Act within the time
prescribed in the proviso to Section 143(2)   of the 1961 Act is
must and mandatory.  It is submitted that therefore when it was
found that notice under Section 143(2) of the 1961 Act was not
served   upon   the   assessee   within   the   time   prescribed   in   the
proviso to Section 143(2) of the Act, the assessment order was
bad in law and the same was rightly set aside by the learned
C.I.T (Appeals), confirmed up to High Court.
5.4 Making   the   above   submissions   and   relying   upon   the
aforesaid   decision   of   this   Court,   it   is   prayed   to   dismiss   the
present appeal.
8
6. We have heard the learned counsel for the respective parties
at length.
6.1 At the outset, it is required to be noted that notice under
Section 143(2) of the 1961 Act was sent by the Assessing Officer
to the assessee at the address as mentioned in the PAN database
on 05.10.2007 and the same was within the time limit prescribed
in proviso to Section 143(2) of the 1961 Act.  However, it was the
case on behalf of the assessee that the said notice was not served
upon the assessee as the assessee changed its name and address
and shifted to new address prior thereto and therefore the said
notice was not served upon the assessee and by the time when
subsequently the notices were served upon the assessee, notice
under Section 143(2) of the 1961 Act was barred by the period
prescribed   in   proviso   to   Section   143(2)   of   the   1961   Act   and
therefore the assessment order is bad in law.  It was the case on
behalf of the assessee that vide communication dated 06.12.2005
the assessee intimated to the Assessing Officer about the new
address and  despite the same the  Assessing Officer  sent  the
notice at the old address.  However, it is required to be noted that
the alleged communication dated 06.12.2005 is not forthcoming.
Neither the same was produced before the Assessing Officer nor
9
even the same has been produced before this Court.   In the
affidavit also, filed in compliance with order dated 21.08.2019,
the assessee has stated that the alleged communication dated
06.12.2005 is not available.   Thus, the assessee has failed to
prove the alleged communication dated 06.12.2005.   The only
document available is Form No.18 filed with the ROC.  Filing of
Form­18 with the ROC cannot be said to be an intimation to the
Assessing Officer with respect to intimation of change in address.
It   appears   that   no   application   was   made   by   the   assessee   to
change   the   address   in   the   PAN   data   base   and   in   the   PAN
database the old address continued.  Therefore, in absence of any
intimation to the Assessing Officer with respect to change in
address, the Assessing Officer was justified in issuing the notice
at the address available as per the PAN database.  Therefore, the
Assessing Officer cannot be said to have committed any error and
in fact the Assessing Officer was justified in sending the notice at
the address as per the PAN database.   If that is so, the notice
dated 05.10.2007 can be said to be within the period prescribed
in proviso to Section 143(2) of the 1961 Act.  Once the notice is
issued within the period prescribed as per the proviso to Section
143(2)   of   the   Act,   the   same   can   be   said   to   be   sufficient
10
compliance of Section 143(2) of the 1961 Act.  Once the notice is
sent within the period prescribed in the proviso to Section 143(2)
of the 1961 Act, in that case, actual service of the notice upon
the assessee thereafter would be immaterial.  In a given case, it
may happen that though the notice is sent within the period
prescribed, the assessee may avoid actual service of the notice till
the period prescribed expired.  Even in the relied upon case by
the learned Senior Advocate for the assessee in the case of Hotel
Blue Moon (supra), it is observed that the Assessing Officer must
necessarily  issue  notice under Section 143(2) of the 1961 Act
within the time prescribed in the proviso to Section 143(2) of the
1961 Act.  Therefore, in the facts and circumstances of the case,
the  High  Court is not  justified  in dismissing  the appeal  and
confirming the orders passed by the learned C.I.T (Appeals) and
the   I.T.A.T.   setting   aside   the   assessment   order   solely   on   the
ground that the assessment order is bad in law on the ground
that   subsequent   service   of   notice   upon   the   assessee   under
Section 143(2) of the 1961 Act was beyond the time prescribed in
the proviso to Section 143(2) of the 1961 Act.
7. Now so far as the observations made by the High Court
while   concurring   with   the   view   of   the   learned   Tribunal   that
11
merely by filing of return of income with the new address, it shall
be enough for the assessee to discharge its legal responsibility for
observing proper procedural steps as per the Companies Act and
the Income Tax Act is concerned, we are of the opinion that mere
mentioning of the new address in the return of income without
specifically   intimating   the   Assessing   Officer   with   respect   to
change   of   address   and   without   getting   the   PAN   database
changed, is not enough and sufficient.  In absence of any specific
intimation to the Assessing Officer with respect to change in
address   and/or   change   in   the   name   of   the   assessee,   the
Assessing Officer would be justified in sending the notice at the
available address mentioned in the PAN database of the assessee,
more particularly when the return has been filed under E­Module
scheme.   It is required to be noted that notices under Section
143(2) of the 1961 Act are issued on selection of case generated
under automated system of the Department which picks up the
address of the assessee from the database of the PAN.  Therefore,
the change of address in the database of PAN is must, in case of
change in the name of the company and/or any change in the
registered office or the corporate office and the same has to be
intimated to the Registrar of Companies in the prescribed format
12
(Form 18) and after completing with the said requirement, the
assessee is required to approach the Department with the copy of
the said document and the assessee is also required to make an
application for change of address in the departmental database of
PAN, which in the present case the assessee has failed to do so.
8. Now so far as the submission on behalf of the assessee that
with  respect   to   the   Assessment   Years   2004­05   and   2005­06,
communications and the assessment orders were sent at the new
address and therefore the Assessing Officer was in the knowledge
of the new address is concerned, the same has been sufficiently
explained by the Revenue.
9. In view of our findings, recorded hereinabove, the impugned
judgment and order passed by the High Court as well as the
orders   passed   by   the   learned   C.I.T   (Appeals)   and   the   I.T.A.T
holding the assessment order bad in law on the aforesaid ground
cannot be sustained  and the same deserve to be quashed and
set aside.  As the learned C.I.T (Appeals) has not considered the
other grounds on merits and has not considered the appeal on
merits, the matter is required to be remanded to the learned C.I.T
(Appeals) to consider the appeal on merits, in accordance with
law.
13
10. Accordingly, the present Appeal is Allowed.  The Impugned
Judgment and Order passed by the High Court as well as the
orders passed by the C.I.T (Appeals) and the I.T.A.T are hereby
quashed and set aside. The matter is remanded to the learned
C.I.T   (Appeals)   to   consider   the   Appeal   on   merits   on   other
grounds, in accordance with law.  No costs.
………………………………….J.
[UDAY UMESH LALIT]
………………………………….J.
[INDIRA BANERJEE]
NEW DELHI; ………………………………….J.
OCTOBER 18, 2019. [M.R. SHAH]
14

Accused entitled for acquittal = the medical evidence does not support the prosecution -instead of going to the police station the witness went to the milk chilling centre to lodge the report -fire armswere not sent to a ballistic expert to show that these were the guns actually used during the occurrence. A number of authorities were cited to show that ocular evidence should be preferred to medical evidence. We are not referring to those, since in our view each case has to be decided in its own facts. -The doctor was a prosecution witness and the prosecution cannot be heard to say that his statement should not be relied upon when the doctor be declared a hostile witness. In the present case the medical evidence does not support the prosecution and we also find that there are other reasons to discredit the prosecution witnesses. No attempt was made by PW­1 or 2 to take Satinder Pal Singh (deceased) inside the Hospital for treatment. The first reaction of close relatives wouldbe to try and save their relative rather than rush to the police station. This is especially so when the occurrence took place inthe Hospital compound itself. The second doubtful feature is that instead of going to the police station the witness went to the milk chilling centre to lodge the report. There is no reasonable explanation given except that since the police were present at the milk chilling centre when the elections took place, he went to the milk chilling centre. He himself admits that the elections wereover at 3.30 P.M. and the occurrence is of 4.30 P.M. Why would he expect that the police would still be present there at the milk chilling centre even after one hour? Another aspect is that though the licensed fire arms of the accused were seized but they were not sent to a ballistic expertand there is no forensic evidence to show that these were the guns actually used during the occurrence. As far as the recovery of the Tata Sumo vehicle is concerned, it is not proved to be belonging to the accused. It belongs to some other person and the accused have not been linked to this. According to the two eye­witnesses PW­1 and 2, all the four fire arm shots hit the deceased on the head. According to the doctor there were only two entry wounds. This also belies the statement of the so called eye­witnesses according to whom the accused gave four fire arm injuries on the head of the deceased. The doctor was a prosecution witness and the prosecution cannot be heard to say that his statement should not be relied upon. The prosecution did not pray that the doctor be declared a hostile witness. Therefore, we have to go by the statement of the medical expert. In view of the above discussion, we find no merit in the aforesaid appeals and the same are dismissed.

Accused entitled for acquittal =
the medical evidence does not support the prosecution -instead of going to the police station the witness went to the milk chilling   centre   to   lodge   the   report -fire armswere not sent to a ballistic expert to show that these were the guns actually used during the occurrence. 

A   number   of   authorities   were   cited   to   show   that   ocular evidence should be preferred to medical evidence.   We are not referring to those, since in our view each case has to be decided in its own facts. -The doctor was a prosecution witness and the prosecution cannot be heard to say that his statement should not be relied upon when the doctor be declared a hostile witness.

In the present case the medical evidence does not support the prosecution and we also find that there are other reasons to discredit the prosecution witnesses.   No attempt was made by PW­1   or   2   to   take   Satinder   Pal   Singh   (deceased)   inside   the Hospital for treatment.  
The first reaction of close relatives wouldbe to try and save their relative rather than rush to the police station. 
This is especially so when the occurrence took place inthe Hospital compound itself. 
The second doubtful feature is that instead of going to the police station the witness went to the milk chilling   centre   to   lodge   the   report.     
There   is   no   reasonable explanation given except that since the police were present at the milk chilling centre when the elections took place, he went to the milk chilling centre.   He himself admits that the elections wereover at 3.30 P.M. and the occurrence is of 4.30 P.M.  Why would he expect that the police would still be present there at the milk chilling centre even after one hour? 
Another aspect is that though the licensed fire arms of the accused were seized but they were not sent to a ballistic expertand there is no forensic evidence to show that these were the guns actually used during the occurrence. As far as the recovery of the Tata Sumo vehicle is concerned, it is not proved to be belonging to the accused.  It belongs to some other person and the accused have not been linked to this.
According to the two eye­witnesses PW­1 and 2, all the four fire arm shots hit the deceased on the head.   According to the doctor there were only two entry wounds.   This also belies the statement of the so called eye­witnesses according to whom the accused gave four fire arm injuries on the head of the deceased. The doctor was a prosecution witness and the prosecution cannot be heard to say that his statement should not be relied upon. The prosecution did not pray that the doctor be declared a hostile witness.  Therefore, we have to go by the statement of the medical expert. In view of the above discussion, we find no merit in the aforesaid   appeals   and   the   same   are   dismissed.    

1
NON­REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO(S). 1560 OF 2019
PREM SINGH                                 …APPELLANT(S)
Versus
SUKHDEV SINGH & OTHERS        …RESPONDENT(S)
WITH
CRIMINAL APPEAL NO(S). 1561 OF 2019
J U D G M E N T
Deepak Gupta, J.
These appeals by the victim as well as by the State are
directed   against   the   judgment   dated   24.07.2013   whereby   the
High Court allowed the appeal of the accused and set aside the
judgment of the trial court whereby the respondents herein were
convicted for various offences punishable under Sections 148,
2
302/149 of the Indian Penal Code (IPC for short) and Section 25
of the Arms Act, and sentenced to various terms including life
imprisonment.
2. We do not intend to give detailed facts of the case.  The gist
of   the   case   is   that   on   25.05.2005,   accused   Jagir   Singh   had
caused injuries to Palwinder Kaur, who is the sister­in­law of
Prem Singh (PW­1).   Prem Singh (PW­1) had gone to the milk
chilling   centre   at   Lopoke,   because   his   father   was   contesting
election being contested there.   At about 3.15 PM, Prem Singh
(PW­1), along with Major Singh (PW­2) proceeded to Civil Hospital
at Lopoke to see his sister­in­law, Palwinder Kaur.  Satinder Pal
Singh (since deceased) was already there in the Hospital.
3. When these two witnesses reached the Hospital, they found
a Tata Sumo vehicle bearing registration no. PB­02­AL­5478 was
parked outside the Hospital.   Accused Sardul Singh alias Kalu
came out of the Tata Sumo with a knife in his hand.  Accused
Sawinder Singh raised a  lalkara  (exhortation) that Satinder Pal
Singh should be killed.  Thereafter, Sardul Singh inflicted a knife
blow on the person of Satinder Pal Singh which hit both sides of
his abdomen and chest.  Satinder Pal Singh tried to run away,
but in the meanwhile accused Sukhdev Singh, Resham Singh,
3
Sawinder Singh and Swaran Singh, who were armed with rifles
came out of the sumo vehicle and fired at Satinder Pal Singh,
which hit him on the forehead, right ear, eye and back of the
head.   Thereafter, he fell down.   Prem Singh (PW­1) and Major
Singh (PW­2) raised alarm.  All the accused ran away with their
respective weapons after jumping over the boundary wall of the
Hospital, leaving behind the Tata Sumo and one motorcycle.
4. The case of the appellant is that there was a land dispute
and Jagir Singh wanted to take possession of the land of the
complainant and hence the appeal.  FIR was got lodged by Prem
Singh   (PW­1),   at   the   milk   chilling   centre   at   Lopoke,   because
according to him the police was present there.   Thereafter, the
police came to the Hospital.  After investigation the accused were
charged   with   committing   murder   of   the   deceased   and   other
offences.   The trial court convicted them.   The High Court, in
appeal acquitted them mainly on the ground that the medical
version was totally different from that of the eye­witnesses and,
therefore, reliance cannot be placed on the eye­witnesses.
5. We may now refer to the relevant portion of the statement of
Dr. Deepak Walia (PW­13), who found the following injuries on
the deceased:­
4
1. A lacerated wound with inverted margins 1 cm x 0.8
cm   present   center   of   upper   eye   lid,   right   abrasion   collar
around it, phtisis (sic) of right eye ball present subconjunctival
hemorrage on right side.
2. A lacerated wound with inverted margins 4 cm x 2.8
cm on right side of fore head 1 cm above the right 1/3rd  of
right eye brow.  Clotted blood was present.
3. A lacerated wound 3.8 x 2.1 cm present on right
temporo parietal region 2 cm above pinna of right ear.  Margin
were everted, brain matter coming out.
4. A lacerated wound 4.2 cm x 1.8 cm on right parieto
occipital   region   with   everted   margins.     Clotted   blood   was
present at the site.  Brain matter coming out.
5. An incised penetrating wound 1.5 cm x 0.5 cm on left
side of chest just below nipple in anterior axillary line, muscle
deep.  No infiltration of blood and no clot was present in the
wound.
6. An incised penetrating wound 1.5 x 0.5 cm on left
side of abdomen in the left Lumber region.  It communicated
with peritoneal cavity.  No infiltration of blood in the wound.
7. An incised penetrating wound 3 cm x 1 cm obliquely
placed in right hyponchondric region, it communicated with
peritonial cavity.   No infiltration of below was present in the
tissue.
He   recovered   a   bullet   from   inside   the   brain   and   12   pellets.
According   to   him,   injury   nos.   3   and   4   are   the   exit   wounds,
corresponding to the entry wounds, which are injury nos. 1 and
2.  He also states that injury 1 to 4 were antemortem and was a
result of fire arm, whereas injury nos. 5 to 7 were post­mortem,
as a result of injuries caused by sharp pointed weapon.
6. The High Court held, and in our opinion rightly so, that the
version   of   the   eye­witnesses   that   knife   blows   were   given   by
accused Sardul Singh is falsified by the testimony of the doctor,
5
who clearly states that the injuries caused by a sharp edged
weapon were post­mortem.   This is a major discrepancy in the
statement of eye­witnesses because both the eye­witnesses claim
that   the   knife   blows   were   given   first   by   Sardul   Singh   and,
thereafter when Satinder Pal Singh (deceased) tried to run away,
the other accused came out from the Tata Sumo with fire arms.
7. It has been contended on behalf of the appellant that the
FIR was lodged within two hours of the occurrence and all the
accused were named in the FIR and, therefore, no chance of
cooking up a false story arises.  It is also urged that the doctor’s
statement is contradictory and according to learned counsel for
the appellants injuries bore entry wounds. 
8. A   number   of   authorities   were   cited   to   show   that   ocular
evidence should be preferred to medical evidence.   We are not
referring to those, since in our view each case has to be decided
in its own facts.
9. In the present case the medical evidence does not support
the prosecution and we also find that there are other reasons to
discredit the prosecution witnesses.   No attempt was made by
PW­1   or   2   to   take   Satinder   Pal   Singh   (deceased)   inside   the
Hospital for treatment.  The first reaction of close relatives would
6
be to try and save their relative rather than rush to the police
station.  This is especially so when the occurrence took place in
the Hospital compound itself.  The second doubtful feature is that
instead of going to the police station the witness went to the milk
chilling   centre   to   lodge   the   report.     There   is   no   reasonable
explanation given except that since the police were present at the
milk chilling centre when the elections took place, he went to the
milk chilling centre.   He himself admits that the elections were
over at 3.30 P.M. and the occurrence is of 4.30 P.M.  Why would
he expect that the police would still be present there at the milk
chilling centre even after one hour?
10. Another aspect is that though the licensed fire arms of the
accused were seized but they were not sent to a ballistic expert
and there is no forensic evidence to show that these were the
guns actually used during the occurrence.
11. As far as the recovery of the Tata Sumo vehicle is concerned,
it is not proved to be belonging to the accused.  It belongs to some
other person and the accused have not been linked to this.
12. According to the two eye­witnesses PW­1 and 2, all the four
fire arm shots hit the deceased on the head.   According to the
doctor there were only two entry wounds.   This also belies the
7
statement of the so called eye­witnesses according to whom the
accused gave four fire arm injuries on the head of the deceased.
The doctor was a prosecution witness and the prosecution cannot
be heard to say that his statement should not be relied upon.
The prosecution did not pray that the doctor be declared a hostile
witness.  Therefore, we have to go by the statement of the medical
expert.
13. In view of the above discussion, we find no merit in the
aforesaid   appeals   and   the   same   are   dismissed.     Pending
application(s), if any, shall also stand dismissed.
…………………………….J.
(Deepak Gupta)
……………………………..J.
(Aniruddha Bose)
New Delhi

October 17, 2019