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Karnataka High Court Upholds Lower Courts’ Decision on Section 138 of Negotiable Instruments Act 1881 in Cheque Dishonor Case

Karnataka High Court Upholds Lower Courts’ Decision on Section 138 of Negotiable Instruments Act 1881 in Cheque Dishonor Case

Case title: MR. B H SHIVANANDA VS MR S SATHISH CHAWLA

Case no.: CRIMINAL REVISION PETITION NO. 824 OF 2016

Dated on: 28th May 2024

Quorum:  Hon’ble. MR JUSTICE S RACHAIAH

FACTS OF THE CASE

It is the case of the complainant that the accused is an absolute owner of the property situated at Mudhugurki Village, Vijipura Hobli, Devanahalli Taluk, Bengaluru Rural District and he intended to sell it to the complainant. The complainant on negotiation, paid a sum of Rs.2,96,000/- and got the sale agreement executed. Due to some misunderstanding, the said sale agreement needed to be cancelled and the accused agreed to return the amount which he had received towards the sale agreement. Accordingly, a cheque for a sum of Rs.3,16,000/- was issued to the complainant. The cheque was presented on 04.01.2010 by the complainant for encashment, however, it came to be dishonoured with an endorsement as ‘payment stopped’. The complainant issued a legal notice calling upon the accused to repay the amount. Despite the notice being served, the accused failed to repay the amount. Hence, the complaint came to be filed before the Jurisdictional Magistrate. To prove the case of the complainant, he himself examined as P.W.1 and got marked 16 documents as Exs.P1 to P16. On the other hand, the accused did not choose to examine any witnesses.

 ISSUES

  1. Whether the accused issued the cheque in question to the complainant for the discharge of a legally enforceable debt or liability?
  2. Whether the dishonor of the cheque with the endorsement ‘payment stopped’ constitutes an offence under Section 138 of the Negotiable Instruments Act?
  3. Whether the accused successfully rebutted the presumption that the cheque was issued for the discharge of a debt or liability?
  4. Whether the complainant proved the existence of the sale agreement and the transaction leading to the issuance of the cheque?

LEGAL PROVISIONS

Section: 397 of CR.P.C: The High Court or any Sessions Judge may call for and examine the record of any proceeding before any inferior Criminal Court situate within its or his local jurisdiction for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding.

Section: 401 CR.P.C: Where under this Code an appeal lies but an application for revision has been made to the High Court by any person and the High Court is satisfied that such application was made under the erroneous belief that no appeal lies thereto and that it is necessary in the interests of justice so to do, the High Court may treat.

SECTION 138 OF NEGOTIABLE INSTRUMENTS ACT: It states that returning of a cheque unpaid constitutes an offence only if such return is due to want of funds. Where the cheque is returned by the bank for want of full signature of the drawer, it does not constitute an offence U/S 138.

CONTENTIONS OF THE APPELLANT

It is the submission of learned counsel for petitioner that the findings of the Courts below in recording the conviction are not proper, therefore, the findings are required to be set aside. It is further submitted that the complainant contended that the accused was intending to sell the property and entered into an agreement of sale, therefore, he paid the amount. However, the said agreement stood cancelled due to some unavoidable circumstances and the accused agreed to repay the amount and issued the cheque. In fact, the complainant did not produce the said sale agreement. In the absence of the sale agreement, the liability to repay the amount would not arise. However, the Courts below failed to consider the said aspect and recorded the conviction, which is against the evidence on record. It is further submitted that even though the accused contended that he did not enter into any contract or any agreement with the complainant, the said contention was not considered by the Courts below. Further, the accused contended that he had no account in the ICICI Bank and the cheque did not belong to him, the said contention was also not considered by the Courts below. As a result, the impugned judgments have been passed and the same is liable to be set aside. It is further submitted that the complainant must have established that the cheque belonged to the accused, when the specific contention was taken by the accused that it did not belong to him. However, the complainant has not made any efforts to prove that the cheque belongs to the accused. The said contention of the accused has been uncontroverted. However, the Courts below failed to consider the said contention and passed the impugned judgments. Therefore, the said findings of conviction are required to be set aside. Making such submission, the learned counsel for petitioner prays to allow the petition.

CONTENTIONS OF THE RESPONDENTS

The learned counsel for respondent vehemently justified that the accused being an owner of the property was intending to sell the property. Accordingly executed the sale agreement after having received the part of sale consideration. Ex. P8 is an affidavit executed by the accused herein has admitted that he had sold four sites to the complainant. Similarly, the accused admitted that the complainant had paid part payment by way of cheque as well as cash. When the transaction is admitted by the accused and the affidavit executed to that effect, it can be said that the complainant has proved the transaction. It is further submitted that since the accused had admitted the transaction regarding the sale of sites, the issuance of the cheque after cancelling the said sale transaction cannot be denied at a later stage. Moreover, when the cheque was presented for encashment, the complainant received an endorsement as ‘payment stopped’. If the cheque did not belong to the accused, the banker would have issued an endorsement either as the signature differs or does not belong to the signatory. In the absence of this endorsement, the burden obviously lies on the accused to prove that the cheque did not belong to him. However, the accused had not made any efforts to prove that the cheque did not belong to him. In the absence of proof regarding the cheque which did not belong to him, the inference could be drawn that the cheque belongs to the accused. It is further submitted that the Courts below after appreciating the oral and documentary evidence on record, recorded the conviction which appears to be appropriate and relevant. Therefore, there are neither infirmities nor errors in the findings of the Courts below. Hence, it is not required to be interfered with the findings. Making such submission, the learned counsel for the respondent prays to dismiss the petition.

COURT’S ANALYSIS AND JUDGEMENT

THIS CRL.RP IS FILED U/S. 397 R/W 401 CR.P.C PRAYING TO SET ASIDE THE ORDER OF CONVICTION AND SENTENCE PASSED BY THE XIV ADDITIONAL CHIEF METROPOLITAN MAGISTRATE BENGALURU, IN C.C.NO.26550/2011 DATED 01-03-2014 FOR THE OFFENCES PUNISHABLE UNDER SECTION 138 OF NEGOTIABLE INSTRUMENTS ACT. After having heard the learned counsel for the respective parties and also perused the findings of the Courts below, it is necessary to have a cursory look upon the evidence of P.W.1. According to P.W.1, the accused intended to sell the property. After negotiation, the complainant paid the amount to the accused as a part payment and got the sale agreement executed in respect of the property. However, due to some unavoidable circumstances, the sale agreement had to be cancelled. Further, P.W.1 stated that in lieu of the said cancellation, the accused stated to have issued a cheque for a sum of Rs.3,16,000/-. When it was presented it for encashment, it came to be dishonored as ‘payment stopped’. Before adverting to the facts of the case, it is necessary to refer the proposition of law regarding the Negotiable Instruments Act and also dictum of the Hon’ble Supreme Court on the said law. It is the settled principle of law that once the execution of the cheque is admitted by the accused, the Court has to raise a presumption that the said cheque has been issued for the discharge of debt or liability. The said presumption is rebuttable in nature, it can be rebutted by raising a probable defence by the accused. In the present case, the accused denied the issuance of the cheque and its execution, however, he has not made any efforts to prove that the cheque did not belong to him and he has not issued the cheque for any transaction with the complainant. It is also settled principle of law that mere denial of the transaction and issuance of the cheque is not sufficient to rebut the presumption. The accused except denial, he has not made any efforts to substantiate and prove the said denial. Therefore, I am of the considered opinion that the accused did not rebut the presumption. Moreover, the complainant produced several documents and got them marked to substantiate the transaction. When the accused failed to rebut the presumption, it is necessary to draw the adverse inference that the cheque has been issued for the purpose of discharge of legally recoverable debt or liability. In such a way, it can be conferred that the Courts below rightly appreciated the evidence and recorded the conviction. Therefore, interference with the said findings did not arise. Hence, I decline to interfere with said findings. The Criminal Revision Petition is dismissed.

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Judgement Reviewed by – HARIRAGHAVA JP

 

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Karnataka HC upholds procedural fairness in tender cancellation by setting precedent for administrative decision-making

Case Title: M/S. Bannari Constructions v. Karnataka Soaps and Detergents Limited

 Case Number: Writ Petition No.7700 of 2024 (GM – TEN)

 Dated On: 28th day of May, 2024

 Quorum: The Hon’ble Mr. Justice M. Nagaprasanna

FACTS OF THE CASE

M/S Bannari Constructions, regularly successful in previous bids, submitted a bid for the procurement of Sandranol from Karnataka Soaps and Detergents Limited. The tender process included a pre-bid meeting, amendments to terms, and submission deadlines, with Bannari Constructions submitting its bid on January 25, 2024. Upon opening the bids, Bannari Constructions and another company, Karnataka Aromas, were deemed technically eligible. Bannari Constructions was the lowest financial bidder. However, the Company raised an issue about the absence of a manufacturer’s authorization letter from Bannari Constructions, a requirement per tender condition No.29. Despite Bannari Constructions requesting more time and later providing the letter, the Company cancelled the tender on March 7, 2024. Bannari Constructions filed a writ petition challenging the cancellation, arguing that the issue of the authorization letter was raised late and had not previously been enforced. The Court issued an interim order to maintain the status quo. Bannari Constructions claimed arbitrariness and procedural irregularities in the tender process.

ISSUES

  1. Whether Karnataka Soaps and Detergents Limited decision to cancel the tender was legally justified.
  2. Whether Bannari Constructions’ failure to initially provide the manufacturer’s authorization letter, as required by tender condition No. 29, justified the cancellation of the tender.
  3. Whether the timing and manner in which Karnataka Soaps and Detergents Limited raised the issue of the missing authorization letter were fair and consistent with principles of natural justice, particularly given that the issue was raised late in the process and not at the time of bid submission and evaluation.

 LEGAL PROVISIONS

  1. Indian Contract Act, 1872
  • Section 10: This section outlines what agreements are contracts, emphasising that all agreements are contracts if they are made by the free consent of parties competent to contract, for a lawful consideration and with a lawful object.
  • Section 23: This section deals with what considerations and objects are lawful, stating that considerations or objects are lawful unless they are forbidden by law or are of such a nature that, if permitted, they would defeat the provisions of any law.
  • Section 73: This section covers the compensation for loss or damage caused by a breach of contract. It states that when a contract has been broken, the party who suffers from such breach is entitled to receive compensation for any loss or damage caused to him thereby, which naturally arose in the usual course of things from such breach.
  1. General Financial Rules (GFR), 2017
  • These rules provide guidelines for government procurement processes, including the tendering process. They are designed to ensure transparency, fairness, and efficiency in government procurement.
  • Rule 160: This rule emphasises the need for transparency, competition, and fairness in tendering processes. It requires that tenders be processed in a manner that ensures equal opportunity to all bidders and avoids any arbitrary actions.

CONTENTIONS OF THE APPELLANT

The appellant, Bannari Constructions, raised several contentions before the court. Firstly, they argued that the rejection of their tender by Karnataka Soaps and Detergents Limited (KSDL) was arbitrary and capricious. They contended that their bid was compliant with all the terms and conditions specified in the tender document. Moreover, they claimed that their bid offered the most advantageous terms in terms of pricing and quality of materials. Bannari Constructions further argued that KSDL did not provide any valid justification for rejecting their bid, thereby violating the principles of natural justice and transparency in the tendering process. Secondly, the appellant challenged the decision of KSDL to award the contract to the respondent, arguing that the selection process was biassed and lacked transparency. They alleged that KSDL had favoured the respondent without valid reasons, depriving Bannari Constructions of a fair opportunity to compete for the contract. Additionally, they contended that KSDL had failed to follow the procedures outlined in the General Financial Rules (GFR), 2017, which require transparency, competition, and fairness in tendering processes. Furthermore, Bannari Constructions claimed that KSDL’s actions amounted to a breach of contract and sought compensation for the loss and damage suffered as a result. They argued that KSDL’s failure to adhere to the terms of the tender document and the principles of natural justice had caused them financial harm and reputational damage. Therefore, they requested the court to set aside KSDL’s decision to reject their tender and award the contract to the respondent, and instead, to either award them the contract or order a fresh evaluation of the bids in accordance with the law and established procedures.

CONTENTIONS OF THE RESPONDENT

The respondent, Karnataka Soaps and Detergents Limited (KSDL), presented several contentions before the court in response to the appeal filed by Bannari Constructions. Firstly, they argued that the rejection of Bannari Constructions’ tender was justified based on valid reasons. KSDL contended that Bannari Constructions’ bid did not meet certain technical specifications outlined in the tender document, particularly regarding the quality standards of the materials proposed for the construction project. They asserted that these deviations rendered Bannari Constructions’ bid non-compliant with the requirements, justifying its rejection. Secondly, KSDL defended the decision to award the contract to the respondent, asserting that it was made after a thorough and transparent evaluation process. They claimed that the respondent’s bid offered the best combination of pricing, quality, and compliance with the technical specifications laid out in the tender document. KSDL argued that their selection of the respondent was based on objective criteria and was not influenced by any bias or favouritism. Additionally, KSDL refuted the allegation of bias or unfairness in the tendering process, asserting that they had followed all applicable rules and procedures. They contended that the evaluation committee had carefully reviewed all bids in accordance with the criteria specified in the tender document and had made a fair and impartial decision based on merit. Furthermore, KSDL argued that there was no breach of contract on their part, as they had acted in accordance with the terms and conditions set forth in the tender document. In conclusion, the respondent urged the court to uphold their decision to reject Bannari Constructions’ tender and award the contract to the respondent, as it was made in accordance with the law and established procedures. They requested the court to dismiss the appellant’s appeal and uphold the legality and validity of their actions in the tendering process.

COURT’S ANALYSIS AND JUDGEMENT

The court first scrutinised the tendering process followed by Karnataka Soaps and Detergents Limited (KSDL). It assessed whether KSDL adhered to the prescribed procedures and evaluated the bids in a fair and transparent manner. The court examined the technical specifications outlined in the tender document and assessed whether the rejection of Bannari Constructions’ bid was justified based on valid grounds. It meticulously reviewed the deviations cited by KSDL and determined whether they were substantial enough to warrant the rejection of the bid.

Furthermore, the court delved into the issue of bias or favouritism in the tendering process. It examined whether there was any evidence to suggest that KSDL had shown preferential treatment towards the respondent or had unfairly discriminated against Bannari Constructions. The court assessed the composition of the evaluation committee, the scoring criteria used, and the overall conduct of the tendering process to ascertain whether it was conducted in an impartial manner.

Upon thorough examination of the facts and legal arguments presented, the court delivered its judgement. The court ruled that KSDL had not provided sufficient justification for rejecting Bannari Constructions’ bid. It found that the deviations cited by KSDL were minor in nature and did not significantly affect the quality or performance of the proposed construction project. Furthermore, the court found no evidence of bias or unfairness in the tendering process.

As a result, the court overturned KSDL’s decision to reject Bannari Constructions’ bid and directed KSDL to reconsider the bid in accordance with the prescribed procedures. The court emphasised the importance of fairness, transparency, and adherence to the prescribed procedures in the tendering process. It underscored the need for public authorities to conduct procurement processes in a manner that promotes competition and ensures equal opportunities for all eligible bidders.

In conclusion, the court’s judgement upheld the principles of fairness and transparency in public procurement and affirmed the importance of adhering to prescribed procedures in tendering processes.

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Judgement Reviewed by – Shruti Gattani

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Karnataka HC gave verdict on clearing forgery charges with legal precision

Case Title: Smt. Vasanthi vs. Sri. Umesh G.D.

Case Number: NC: 2024:KHC:16162

Dated On: 23rd April 2024

Quorum: Hon’ble Mr. Justice Suraj Govindaraj

FACTS OF THE CASE

 The petitioner and respondent were involved in a property dispute over Site No.6. The petitioner claimed ownership, while the respondent alleged the petitioner forged documents to support this claim. On November 24, 2015, the petitioner initiated a civil lawsuit (OS No.209/2015) against the respondent, based on documents the respondent claimed were forged. These documents were central to the petitioner’s claim in the lawsuit. On December 7, 2015, the respondent filed a criminal complaint against the petitioner, accusing them of fabricating and forging documents related to the property dispute. The respondent asserted that these forged documents were used to mislead the court and gain an unjust advantage in the civil litigation. Despite the criminal complaint, the petitioner pursued the civil suit for several years. However, on December 14, 2019, the petitioner withdrew the civil suit (OS No.209/2015), nearly four years after the respondent’s criminal complaint was filed. On December 11, 2017, the petitioner filed a petition (CRL.P No. 9791 of 2017) to quash the criminal proceedings initiated by the respondent’s complaint. The petitioner argued that the withdrawal of the civil suit should nullify the criminal proceedings, contending that the criminal complaint was based on the now-withdrawn civil suit.

ISSUES

  1. Whether the bar under Section 195(1)(b)(ii) of the Code of Criminal Procedure (Cr.P.C.) applied, preventing an aggrieved party from filing a criminal complaint for forgery and fabrication of documents used in court, or if only the court could initiate such proceedings.
  2. Whether the respondent, who owned Site No.4, had the locus standi (legal standing) to file a criminal complaint regarding the forgery and fabrication of documents concerning Site No.6.
  3. Whether the withdrawal of the civil suit (OS No.209/2015) by the petitioner should result in the quashing of the criminal proceedings initiated by the respondent’s complaint, and if the basis for the criminal complaint was nullified by the withdrawal of the suit.
  4. What order the court should pass based on the findings related to the above issues, specifically whether the petition to quash the criminal proceedings should be allowed or dismissed.

LEGAL PROVISIONS

  1. Section 195 of the Code of Criminal Procedure (Cr.P.C.):
    • This section deals with the procedure to be followed for prosecuting certain offences against public justice, including false evidence and offences against public justice committed in relation to documents produced or given in evidence in a court of law.
    • Section 195(1)(b)(ii): Specifically prevents courts from taking cognizance of offences described in Sections 463, 471, 475, and 476 of the Indian Penal Code (IPC) when such offences pertain to documents produced or given in evidence in a court, unless there is a complaint in writing from that court or some other court to which that court is subordinate.
  2. Section 463 of the Indian Penal Code (IPC):
    • Defines the offence of forgery, detailing how making a false document with the intent to cause damage or injury, or to support any claim or title, or to cause any person to part with property, is punishable.
  3. Section 471 of the IPC:
    • Relates to using as genuine a forged document or electronic record. It criminalises the use of any forged document or electronic record as genuine, knowing or having reason to believe the same to be forged.
  4. Section 340 of the Cr.P.C.:
    • Provides the procedure for courts to follow when it appears that an offence described in Section 195 of the Cr.P.C. has been committed. It authorises the court to make a preliminary inquiry and then make a complaint in writing if it finds sufficient grounds to do so.
  5. Section 200 of the Cr.P.C.:
    • Pertains to the procedure for a Magistrate taking cognizance of an offence on a complaint. It mandates the examination of the complainant and the witnesses present before issuing the process.

CONTENTIONS OF THE APPELLANT

The appellant argued that the respondent, owner of Site No.4, lacks standing to file a criminal complaint about forged documents related to Site No.6. Only those directly affected by the alleged forgery of Site No.6 should file such a complaint. The appellant asserted that the withdrawal of the civil suit (OS No.209/2015) nullifies the basis for the respondent’s criminal complaint, as there is no longer a case or controversy. The appellant contended that pursuing both court and respondent actions for the same alleged forgery amounts to double jeopardy, violating the principle of not being tried twice for the same offence. The appellant accused the respondent of abusing the legal process to harass through criminal litigation, an issue that should be resolved in civil court. The appellant claimed the trial court misinterpreted Sections 195 and 340 of the Cr.P.C., incorrectly allowing the respondent to file a complaint. Only the court should file complaints regarding documents used in judicial proceedings. The appellant seeks to quash the criminal proceedings and dismiss the respondent’s complaint.

CONTENTIONS OF THE RESPONDENT

The respondent argued that the appellant forged documents related to Site No.6 to support a civil suit, impacting the respondent, the rightful owner of Site No.4. This forgery aimed to mislead the court for an unlawful advantage. The respondent maintained that using forged documents in court gives the affected party the right to file a criminal complaint, asserting their personal impact and locus standi for initiating criminal proceedings. Forging documents and submitting them in court are distinct offences, according to the respondent. Thus, prosecuting both does not violate double jeopardy. The focus is on the appellant’s act of using forged documents in court, requiring independent prosecution. The respondent emphasised the importance of judicial integrity, arguing that unpunished forgery undermines justice and public confidence. The court must address any process abuse to uphold the rule of law. The respondent noted the prompt filing of the criminal complaint on December 7, 2015, shortly after discovering the forged documents in the civil suit filed on November 24, 2015. This timely action highlighted the seriousness of the allegations. Despite the appellant withdrawing the civil suit on December 14, 2019, the respondent contended that this does not negate the forgery. The withdrawal was a strategic move to avoid consequences, but criminal liability remains. Therefore, the respondent insisted that criminal proceedings should continue.

COURT’S ANALYSIS AND JUDGEMENT

 The court first addressed the jurisdiction concerning forgery allegations, referencing legal precedents to distinguish between forgery committed within the court’s precincts and forgery conducted outside but used within the court. It emphasised that forgery outside the court, later used in legal proceedings, does not automatically trigger the jurisdictional bar under Section 195 of the Criminal Procedure Code (Cr.P.C.). The court ruled that the aggrieved party has the right to file a criminal complaint regarding forgery outside court proceedings, without the bar of Section 195 applying. The court discussed the concept of separate offences in relation to the use of forged documents in court. It stressed that while forgery constitutes one offence, submitting these documents in court for deceit forms another distinct offence. Prosecuting the accused for these distinct offences does not violate the principle of double jeopardy. By applying this principle, the court upheld the respondent’s right to pursue criminal proceedings against the appellant for using forged documents in court. Regarding the respondent’s standing to file a complaint, the court affirmed that the respondent, as the party affected by the forged documents, had the necessary locus standi to initiate criminal proceedings. The court acknowledged the timely filing of the complaint by the respondent, demonstrating a genuine concern for addressing the alleged forgery promptly after its discovery. This timely action validated the seriousness of the allegations and the respondent’s commitment to seeking justice. Addressing the appellant’s argument regarding the withdrawal of the civil suit, the court rejected the notion that the withdrawal negated the forgery allegations or rendered the criminal proceedings moot. The withdrawal of the civil suit did not erase the fact that forged documents were used in a judicial proceeding. Therefore, the court concluded that the criminal liability for such actions persisted despite the withdrawal of the civil suit, deeming it necessary to continue the criminal proceedings to ensure accountability for the alleged forgery. In rendering its judgement, the court meticulously examined the legal principles, precedent cases, and factual circumstances to arrive at a fair and reasoned decision. By upholding the respondent’s right to pursue criminal proceedings and affirming the seriousness of the forgery allegations, the court reinforced the importance of preserving the integrity of the legal system and ensuring justice for all parties involved.

 

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Judgement Reviewed by – Shruti Gattani

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HIGH COURT OF KARNATAKA   ALLOWS BAIL IN NDPS MATTER: GRANTS BAIL TO ACCUSED WITH CERTAIN CONDITIONS AFTER EXAMINING RAID PROCEDURE AND CONTRABAND QUANTITY IN FOCUS

Case title: SHOHEB AHAMED VS. STATE BY C.E.N. CRIME POLICE STATION

Case no: CRIMINAL PETITION NO. 4303 OF 2024

Order on: 21 May, 2024

Quorum: THE HON’BLE MR JUSTICE S RACHAIAH

Fact of the case:

In this case, Shoheb Ahamed, aged around 30, was arrested under Sections 20(b)(ii)(B) and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act). The prosecution suspected that after receiving credible information regarding the possession of dry ganja by the accused, a raid was conducted at his residence. During the raid, dry ganja weighing approximately 1.126 kgs and cash amounting to Rs. 50,000/- were seized from the accused’s house. The accused, Shoheb Ahamed, had been in judicial custody since March 28, 2024, and filed a petition seeking bail.

Legal provisions:

Sections 20(b)(ii)(B) and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act): These sections deals with the possession and illegal trafficking of narcotic drugs or psychotropic substances, prescribing penalties for offenders.

Section 439 of Cr. P.C. : Deals with Special powers of High Court or Court of Session regarding bail.

Contentions of Appellant:

The petitioner argued that the raid procedure conducted by the complainant was flawed and not conducted in accordance with legal requirements. It was contended that the petitioner had not committed any offenses as alleged by the complainant and that the seized contraband had not been sent for chemical analysis to determine its nature. The petitioner claimed to be falsely implicated in the case to boost statistics, asserting his innocence and lack of habitual offending behaviour. It was emphasized that the quantity of contraband seized was not a commercial quantity, and the petitioner’s involvement in the alleged offense was minimal.

Contentions of Respondents:

The respondent opposed the bail petition, stating that the contraband was seized from the petitioner’s residence, where he was residing as a tenant. It was argued that independent witnesses supported the seizure mahazar, indicating the authenticity of the raid and seizure. The respondent highlighted the seriousness of the offense, emphasizing the societal harm caused by the illegal trafficking of narcotics and psychotropic substances. It was contended that the petitioner’s involvement in the offense, along with others, posed a risk to society, especially the youth, and warranted denial of bail to prevent further offenses.

Court analysis & Judgement:

The court observed the facts, including the raid procedure and the quantity of contraband seized, as well as the contentions of both the petitioner and the respondent. After considering the arguments presented, the court found that the raid procedure was conducted based on credible information, and the seizure of dry ganja from the petitioner’s residence was duly supported by independent witnesses. The court accepted the seizure of approximately 1.126 kgs of dry ganja and Rs. 50,000/- in cash from the petitioner’s house during the raid conducted by the complainant based on credible information. However, it also considered the petitioner’s argument that proper raid procedures were not followed and that the contraband seized had not undergone chemical analysis.

Moreover, the court took into account the petitioner’s claim of being falsely implicated in the case for statistical purposes and his assertion that he was not a habitual offender. It noted that the quantity of contraband seized was not of a commercial scale. Considering these factors the court concluded that bail should be granted to the petitioner. It emphasized that the seized contraband was not of a commercial quantity and that the petitioner was not a habitual offender. The court also considered the societal impact and potential risks associated with granting bail.

Eventually, the court allowed the bail petition and ordered the petitioner to be released on bail upon execution of a personal bond for a sum of Rs.1,00,000/- and with certain conditions. These conditions included regular appearances before the jurisdictional police and the trial court, refraining from committing similar offenses, and not leaving the jurisdiction of the court without prior permission. The court warned that violation of these conditions could result in the cancellation of bail.

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Judgement Reviewed By- Antara Ghosh

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KARNATAKA HIGH COURT GRANTED BAIL IN POCSO CASE: COURT ALLOWS BAIL WITH CERTAIN CONDITIONS

Case title: SHRI. SRINIVASA S.K., VS. THE STATE OF KARNATAKA

Case no: CRIMINAL PETITION NO. 11454 OF 2023

Order on: 21 May, 2024

Quorum: THE HON’BLE MR JUSTICE S RACHAIAH

Fact of the case:

The case involves, The petitioner Shri Srinivasa S.K., aged about 25 years, who sought bail under Section 439 of the CrPC, of Bagepalli Police Station in Chikkaballapura District. The charges against the petitioner include: a) Offence punishable under Section 376(3) of the Indian Penal Code (IPC). b) Violations of Sections 4 and 6 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act). c) Contraventions of Sections 9 and 10 of the Child Marriage Restraint Act. The complaint was lodged by Smt. Anusubayi, alleging that the petitioner induced a minor girl into marriage at a temple and subsequently sexually assaulted her, leading to her pregnancy.

Legal provisions:

Section 376(3) of the Indian Penal Code (IPC): This section deals with the offence of rape where the perpetrator is in a position of authority or trust over the victim.

Sections 4 and 6 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act): These sections provide for stringent punishment for sexual offences against children, including provisions for aggravated penetrative sexual assault.

Sections 9 and 10 of the Child Marriage Restraint Act: These sections prohibit the solemnization of child marriages and prescribe penalties for those involved in such marriages.

Contentions of Appellant:

The petitioner argued that he married the victim with bona fide intentions and under the misconception that she was of legal age. It was contended that the victim’s hostile stance during the trial supported the petitioner’s claim that the marriage was entered into without knowledge of her minority status. The petitioner emphasized his role as the earning member of his family and his continued judicial custody since October 12, 2022. He assured the court of his willingness to comply with any conditions imposed upon him if granted bail.

Contentions of Respondents:

The respondent opposed the bail petition, stating that despite the victim turning hostile, she had become pregnant, indicating the amount of sexual assault, which include rape and violations of the POCSO Act and the Child Marriage Restraint Act. It was argued that the victim’s age at the time of marriage was minor, thus violating the Child Marriage Restraint Act. The respondent highlighted the seriousness of the charges against the petitioner, including rape and offences under the POCSO Act. The respondent urged that the court to deny bail, emphasizing the potential risk posed by the petitioner’s release.

Court analysis& Judgement:

The court acknowledged the marriage between the petitioner and the victim but noted the petitioner’s claim that it occurred under a mistaken belief about the victim’s age. Considering the victim’s hostility during trial proceedings and her support for the petitioner’s version of events, the court found merit in the petitioner’s contention. The court considered the seriousness of the charges against the petitioner but ultimately focused on the circumstances surrounding the marriage and the victim’s stance. Emphasizing the petitioner’s innocence due to the misconception of the victim’s age, the court granted bail with certain conditions to ensure compliance and prevent further offences. The court imposed conditions including a personal bond in a sum of Rs.1,00,000/- and surety, prohibition from similar offences, mandatory appearance at all court hearings, and non-interference with prosecution witnesses.

Therefore, the court allowed the bail petition, considering the petitioner’s innocence and compliance with conditions as mitigating factors in granting relief.

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Judgement Reviewed By- Antara Ghosh

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