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“Demand and Acceptance”: Upholding Electronic Evidence in Corruption Cases

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Case Title – Sayyad Shakil Salam vs. The State of Maharashtra

Case No. – Criminal Appeal No. 197 of 2019

Dated on – 14th June, 2024

Quorum – Hon’ble Justice Urmila Joshi Phalke

 

Facts of the case –

The accused, a public servant, was charged under Sections 7 and 13(1)(d) of the Prevention of Corruption Act, 1988, for allegedly demanding and accepting a bribe from the complainant, Dongarsingh Yadav (PW1). The complainant alleged that the accused demanded an illegal gratification, which was recorded using a digital voice recorder provided by the investigating authorities. The conversation between the complainant and the accused was subsequently transcribed and produced as evidence. The prosecution also submitted a certificate under Section 65B of the Indian Evidence Act, 1872, to authenticate the electronic evidence. The forensic analysis of the audio recording confirmed the match between the recorded voices and the accused’s specimen voice. Despite the defense’s objections to the admissibility of the electronic evidence, the trial court admitted the evidence and convicted the accused, leading to the present appeal.

 

Legal Provisions –

  • Section 65B of the Indian Evidence Act, 1872
  • Section 20 of the Prevention of Corruption Act, 1988
  • Sections 7 and 13(1)(d) of the Prevention of Corruption Act, 1988

 

Contentions of the Appellant –

The appellant contended that the electronic evidence presented by the prosecution was inadmissible due to non-compliance with the requirements under Section 65B of the Indian Evidence Act, 1872. The appellant argued that the SD card used for recording the conversation was not produced alongside the Section 65B certificate, rendering the electronic evidence untrustworthy. Additionally, the appellant emphasized that the Shadow Pancha (PW2), Shantaram Yewale, did not corroborate the complainant’s testimony regarding the demand and acceptance of the bribe, asserting that he did not hear the conversation between the complainant and the accused. The appellant further claimed that the prosecution failed to prove the essential elements of demand and acceptance of illegal gratification beyond a reasonable doubt, as required under Sections 7 and 13(1)(d) of the Prevention of Corruption Act, 1988. The appellant maintained that the mere recovery of the tainted money was insufficient to sustain a conviction without concrete evidence of demand and acceptance.

 

Contentions of the Respondent –

The respondent contended that the prosecution had duly complied with the requirements under Section 65B of the Indian Evidence Act, 1872, by producing both the SD card and the accompanying certificate. They argued that PW6 Sachin Halmare, a duly authorized person, provided credible testimony regarding the transcription and issued the necessary hash value certificate, fulfilling all legal prerequisites for the admissibility of electronic evidence. The respondent emphasized that the complainant’s testimony (PW1) was consistent and corroborated by the electronic evidence, which clearly demonstrated the demand and acceptance of the bribe by the accused. They contended that the circumstantial evidence, including the recorded conversation and the subsequent forensic analysis confirming the voice of the accused, substantiated the prosecution’s case. The respondent further argued that the statutory presumption under Section 20 of the Prevention of Corruption Act, 1988, was correctly invoked, as the evidence established both the demand and acceptance of illegal gratification. They maintained that the accused’s explanation was insufficient to rebut this presumption and that the trial court rightly convicted and sentenced the accused based on the comprehensive evidence presented.

 

Court Analysis and Judgement –

The Hon’ble Bombay High Court meticulously analyzed the evidence presented by the prosecution, particularly focusing on the admissibility and reliability of the electronic evidence. It noted that the prosecution had duly complied with the requirements under Section 65B of the Indian Evidence Act, 1872, by producing both the SD card and the certificate, thereby fulfilling the legal prerequisites for the admissibility of electronic records. The court found the testimony of PW1, the complainant, to be consistent and corroborative, particularly supported by the recorded conversation which demonstrated the demand and acceptance of the bribe by the accused. The forensic analysis further confirmed the accused’s voice in the recorded conversation, strengthening the prosecution’s case. The court emphasized that the statutory presumption under Section 20 of the Prevention of Corruption Act, 1988, was correctly invoked, as the evidence satisfactorily established the demand and acceptance of illegal gratification. The court rejected the appellant’s defense that the money was placed on his table without his knowledge, finding it insufficient to rebut the presumption of guilt. The court upheld the trial court’s conviction, concluding that the prosecution had successfully proven the elements of the offense under Sections 7 and 13(1)(d) of the said Act beyond a reasonable doubt. Consequently, the appeal was dismissed, affirming the conviction and sentence imposed by the trial court.

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Judgement Reviewed By- Anurag Das

 

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Kerala High Court Expands Spousal Testimony Rights in Civil Cases.

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Recently, the Kerala High Court ruled in Smitha v. Anil Kumar & Ors that spouses may testify on each other’s behalf during civil case trial proceedings under Section 120 of the Indian Evidence Act. Justice Kauser Edappagath noted that a husband and wife are competent to offer evidence under Section 120 of the Indian Evidence Act if it comes to both their own and their spouse’s knowledge.

The woman whose application was being considered by the court had filed a civil claim that was still pending in a trial court. The woman, who was the trial court’s plaintiff, had asked for authorization to call her husband as a witness or present evidence on her behalf. However, approval to do this was rejected by the trial court. According to the trial court, no one could be permitted to testify on behalf of another, and further stated that the husband may only be questioned as a witness for the plaintiff. The plaintiff filed an application with the High Court challenging the same. The counsel for the plaintiff claimed that the trial court erred in its ruling because it disregarded Section 120 of the Indian Evidence Act, which expressly permits spouses to testify on behalf of one another in civil cases. The husband was a crucial witness who may offer important testimony that would be pertinent to the case, the High Court was informed. In reaching a decision, the High Court reviewed Section 120 of the Indian Evidence Act, which stipulates that “In all civil proceedings, the parties to the suit, and the husband or wife of any party to the suit, shall be competent witnesses…”

The High Court noted that even in the absence of a power of attorney, this clause supersedes the standard procedural standards and permits non-litigating spouses to testify in lieu of their litigating spouses. Because of this, the High Court disapproved with the trial court’s conclusion in this regard and overturned the decision to deny the plaintiff’s request for her husband to testify in her place.

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Written By – Gnaneswarran Beemarao

 

 

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Patna High Court: Acquits Convicts in 2011 Murder Case Due to Lack of Evidence and Witness Credibility

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Patna High Court: Acquits Convicts in 2011 Murder Case Due to Lack of Evidence and Witness Credibility

Case title:  Rajendra Yadav VS The State of Bihar

Case no.:  CRIMINAL APPEAL (DB) No.940 of 2018

Dated on: 14th May 2024

Quorum:  Hon’ble. MR JUSTICE VIPUL M. PANCHOLI and Hon’ble. MR. JUSTICE RAMESH CHAND MALVIYA.

FACTS OF THE CASE

The present appeals have been filed under Section 374(2) of the Code of Criminal Procedure, 1973 (hereinafter referred as ‘Cr.P.C.’) challenging the impugned judgment of conviction dated 13.06.2018 and order of sentence dated 14.06.2018 passed by the learned 3rd Additional District and Sessions Judge, Araria, in connection with Sessions Trial No. 1151/2012, T.R. No.64/2017 (arising out of Bhargama P.S. Case No. 43/2011) by which all the appellants have been convicted and appellant/convict Rajendra Yadav has been sentenced to undergo rigorous imprisonment for life with a fine of Rs. 50,000/- (fifty thousand) for the offence punishable under Section- 302 of I.P.C. In default of payment of fine, the convict will have to undergo further one year imprisonment. He has further been sentenced to undergo rigorous imprisonment for three years with a fine of Rs. 5000/- (five thousand) for the offence punishable under Section 27 of the Arms Act. In default of payment of fine, he will have to under further imprisonment for six months. The sentences have been directed to run concurrently. Appellants/convicts Badri Yadav, Kailash Yadav and Mithilesh Yadav @ Akhilesh Yadav have been sentenced to undergo rigorous for life with a fine of Rs.50,000/- (fifty thousand) each for the offence punishable under Section -302/149 of I.P.C. In default of payment of fine, the convicts will have to further undergo one year imprisonment. They have also been sentenced to undergo rigorous imprisonment for 2 years and 6 months with a fine of Rs.5000/ each for the offence punishable under Section-148 of I.P.C. In default of payment of fine, they will have to undergo further imprisonment for three months each. All the sentences have been directed to run concurrently. At the outset, it is relevant to note that Mr. Amarnath Jha, learned counsel, earlier appearing for the appellants, states that he has already given no objection to the appellants. However, nobody has filed appearance in Cr. Appeal (D.B.) No. 931 of 2018, which is pending for hearing since long. The present appeal is of the year 2018 and out of three appeals, in one appeal, appellant/convict is in custody for more than 12 years. Therefore, we have no option, but to proceed with the matter and, therefore, we have requested Mr. Sandeep Kumar Pandey to assist the Court in the matter and, with his consent, he is appointed as Amicus Curiae. “On 08.05.2011, the informant was returning from Parsa Haat by his brother-in-law’s motorcycle bearing Regn. No. BR 38 A-8010. After reaching the door of Satya Narayan Mandal, S/o Late Moti Mandal of his village at around at 6 O’clock, he was having a discussion about farming activities. All on a sudden 1. Rajendra Yadav S/o- Jagdeesh Yadav 2. Badri Yadav S/o- Late Janak Yadav 3. Kailash Yadav S/o- Badri Yadav 4. Shaili Devi, w/o Badri Yadav 5. Gajen Yadav S/o- Mohan Yadav Vill- Jahad and 6. Badri Yadav’s Son-in-law Mithilesh Yadav S/o- Not known, Vill- Belodih, P.S not known, Dist. Madhepura came there, out of whom Rajendra Yadav S/o Late Jagdeesh Yadav had a country-made rifle in his hand and others had sticks in their hands. They surrounded the informant and started beating him at Satyanarayan Mandal’s door.

ISSUES

  1. Whether the delay in sending the First Information Report (FIR) to the Magistrate was justified and whether it affected the prosecution’s case.
  2. Whether the appellants were falsely implicated in the occurrence due to an election dispute, as claimed by the defence.
  3. Whether the testimonies of the prosecution’s eye-witnesses, who were relatives of the deceased, were reliable and trustworthy, given the contradictions and inconsistencies in their statements.
  4. Whether the medical evidence, including the post-mortem report, supported the prosecution’s timeline and version of events.

LEGAL PROVISIONS

Section 302 of the Indian Penal Code (IPC): Punishment for Murder

This section deals with the punishment for murder. It states that whoever commits murder shall be punished with death or imprisonment for life and shall also be liable to a fine.

Section 149 of the Indian Penal Code (IPC): Every member of unlawful assembly guilty of offense committed in prosecution of common object

This section states that if an offense is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offense, is a member of the same assembly, is guilty of that offense.

Section 148 of the Indian Penal Code (IPC): Rioting, armed with a deadly weapon

This section deals with the punishment for rioting, armed with a deadly weapon or with anything which, used as a weapon of offense, is likely to cause death. The punishment can extend to imprisonment for three years, or with a fine, or with both.

Section 27 of the Arms Act, 1959: Punishment for using arms, etc. This section prescribes the punishment for using arms in contravention of Section 5 of the Arms Act, 1959, which deals with the requirement of a license to possess or carry any firearm or ammunition. The punishment can range from imprisonment for not less than three years, which may extend to seven years, and also with a fine.

Section 374(2) of the Code of Criminal Procedure, 1973 (Cr.P.C.): Appeals from convictions This section allows any person convicted on a trial held by a Sessions Judge or an Additional Sessions Judge to appeal to the High Court.

 

CONTENTIONS OF THE APPELLANT

Heard Mr. Ravindra Kumar, assisted by Mr. Rajesh Roy, Manoj Kumar and Mr. Sandeep Kumar Pandey, learned counsels for the appellant, Mr. Sujit Kumar Singh, learned A.P.P. for the respondent State and Mr. Shashi Bhushan Kumar, learned counsel for the informant (in Cr. Appeal (D.B.) No.940 of 2018, Mr. Kumar Dhirendra, assisted by Mr. Diwanshu Kumar, learned counsel for the appellants, Mr. Sujit Kumar Singh, learned A.P.P. for the respondent State (in Cr. Appeal (D.B.) No.880 of 2018 and Mr. Sandeep Kumar, learned Amicus Curiae, for the appellant and Mr. Ajay Mishra, learned A.P.P. for the respondent-State in

Cr. Appeal (D.B.) No. 931 of 2018). Learned advocates appearing for the respective appellants have submitted that there is a delay in sending the F.I.R. to the Magistrate Court and the appellants have been falsely implicated in the occurrence in question. Though the informant has stated that six accused persons named in the F.I.R. came with weapons and assaulted the informant as well as one Samindo and they sustained injuries, the injury report of the aforesaid persons were not produced before the Court nor the Doctor was examined. It is further submitted that the informant and Samindo Yadav are not the eye-witnesses, despite which they were projected as eye-witnesses by the prosecution. The aforesaid witnesses are near relatives of the deceased and, therefore, their deposition is required to be scrutinized carefully. It is submitted that looking to the major contradictions in the depositions of the so-called eye-witnesses, it can be said that they are not trustworthy and, therefore, their depositions be discarded. At this stage, it is also submitted that P.Ws. 2, 3 and 4 are projected as eye-witnesses to the occurrence by the prosecution however, from the deposition given by P.W. 10 Bhola Singh, who was the 1st Investigating Officer, it is revealed that he had recorded the statements of the informant Mahesh Yadav and Simindo Yadav only and thereafter he was transferred and the charge of investigation was handed over to another officer namely Arvind Kumar Yadav. Surprisingly, Arvind Kumar Yadav has also not been examined by the prosecution. It is further submitted that thereafter P.W. 9 Dev Raj Ray took over the charge of investigation on 30th of June, 2011 and from the deposition of the said witness, it is revealed that the said I.O. has recorded the statements of the other so-called eye-witnesses only on 01.08.2011. It is, thus, contended that Rajendra Yadav, Bindeshwari Yadav, Garib Yadav and Manoj Yadav are not the eye-witnesses. Even otherwise, there are major contradictions in their deposition and, therefore, the Trial Court ought to have discarded the depositions given by the aforesaid witnesses. Even P.W.11, the doctor Binod Bisnoi who had conducted the post mortem of the dead body of the deceased, has stated that the post mortem was conducted on 09.05.2011 and the said witness has further stated that the time elapsed since death is within 48 hours. Learned counsels, therefore, submitted that the medical evidence does not support the version given by the informant and the so-called eye-witnesses. Learned advocates for the appellants, therefore, urged that the Trial Court has committed grave error while recording the judgment of conviction and order of sentence. Therefore, this Court may quash and set aside the same and thereby allow all the appeals

CONTENTIONS OF THE RESPONDENTS

Learned counsel for the informant and the learned Additional Public Prosecutors have opposed the appeals filed by the appellants. It is submitted that P.W.1 to P.W.5 and P.W. 7 are the eye-witnesses to the occurrence in question and all of them have supported the case of the prosecution. The specific allegation is levelled against the appellant Rajendra Yadav that he fired from his country-made rifle and the bullet hit the chest of the deceased causing his death. The medical evidence also supports and corroborates the case of the eye-witnesses. The Investigating Officers have also deposed the manner in which the investigation was carried out by them and, therefore, there is ample material on record which suggests that the appellants have killed the deceased. It is further submitted that the prosecution has also proved the motive on the part of the appellants to kill the deceased and thereby the prosecution has proved the case against all the appellants beyond reasonable doubt. Hence, no error is committed by the Trial Court while passing the impugned judgment and order. Learned counsels for the respondents, therefore, urged that all these appeals be dismissed. learned counsel for the informant and the learned Additional Public Prosecutors have opposed the appeals filed by the appellants. It is submitted that P.W.1 to P.W.5 and P.W. 7 are the eye-witnesses to the occurrence in question and all of them have supported the case of the prosecution. The specific allegation is levelled against the appellant Rajendra Yadav that he fired from his country-made rifle and the bullet hit the chest of the deceased causing his death. The medical evidence also supports and corroborates the case of the eye-witnesses. The Investigating Officers have also deposed the manner in which the investigation was carried out by them and, therefore, there is ample material on record which suggests that the appellants have killed the deceased. It is further submitted that the prosecution has also proved the motive on the part of the appellants to kill the deceased and thereby the prosecution has proved the case against all the appellants beyond reasonable doubt. Hence, no error is committed by the Trial Court while passing the impugned judgment and order. Learned counsels for the respondents, therefore, urged that all these appeals be dismissed.

COURT’S ANALYSIS AND JUDGEMENT

We have considered the submissions canvassed by the learned counsels for the parties. We have also perused the evidence of prosecution witnesses and also perused the documentary evidence exhibited. P.W. 1 is Simindo Yadav. He has stated in his examination-in-chief that the incident took place one and a half years ago at 06:00 p.m. He was returning from Parsa Haat when he saw that Badri Yadav, Kailash, Shaili Devi, Mithilesh Yadav, Rajendra and Gajen Yadav were present at the door of Badri Yadav. Badri Yadav had caught hold of Ramesh and ordered to shoot him. Ramesh was shot at and he died. The witness was also beaten. Police had come to the place of occurrence. Post Mortem was done. He claims to identify all the accused persons by face and identifies accused Rajendra Yadav present in Court. Death, in my opinion, due to Hemorrhage and shock as a result of above-mentioned firearm injury, we have considered the submissions canvassed by the learned counsels for the parties. We have re appreciated the entire evidence led by the prosecution. We have also perused the material placed on record. It would emerge from the record that P.W. 5 Mahesh Yadav is the informant whose fardbeyan was recorded on 01.08.2011 at 09:00 p.m., wherein he has stated that at about 06:30 p.m., when he was returning on his motorcycle with one Anil Yadav and they came near the house of Satya Narain Mandal, they saw that all the accused named in the F.I.R. came at the place with deadly weapons and they started beating the informant near the house of Satya Narain Mandal. At that time, his brother Ramesh Yadav and Simindo Yadav came there with a view to rescue the informant. Thereafter, Badri Yadav dragged Ramesh Yadav near his house. At that time, Rajendra Yadav fired from his country-made rifle and the bullet hit the chest of the brother of the informant. When Simindo Yadav tried to intervene, all the other accused persons gave stick blows to him. At that time, the other persons came upon hearing the commotion and sound of firing. When they saw, they found that Ramesh Yadav had died because of the gun-shot injury. At this stage, if the deposition given by P.W. 1 Simindo Yadav is carefully examined, in his examination-in chief they said witness has only stated that when he was returning from Parsa Haat, he saw that near the house of Badri Yadav, all the named accused were present and Badri Yadav caught hold of Ramesh Yadav and ordered to shoot him. Thereafter, he was shot at. The said witness was also assaulted. He has further stated that the police were informed after one and a half hours of the occurrence and police came at the place of occurrence around 10-11 p.m. Thus, from the deposition of the said witness, it is revealed that this witness has not given the name of the accused who had fired on the deceased. At this stage, the deposition of P.W. 5 is also required to be examined carefully. P.W. 5 is the informant. The said witness in his examination-in-chief has also given the name of all the accused. He has stated that he also sustained injury because of the assault made by the accused. He has also stated that there was huge blood spilled over the earth and the clothes were also blood-stained. However, he is not aware whether the same were seized by the Investigating Officer or not. It is pertinent to note that merely because the witnesses are near relatives and interested witnesses, their deposition cannot be discarded simply on that very ground. However, deposition of said witnesses requires to be scrutinized closely and carefully. If a witness is trustworthy, his version can be accepted. However, in the present case, from the deposition of the aforesaid two witnesses and the conduct of the said witnesses, we are of the view that they are not trustworthy and there are major contradictions and inconsistencies in their deposition. Hence, we are of the view that they are projected as eye-witnesses, but their presence at the place of occurrence is doubtful. Further, P.W.11 is Dr. Binod Bisnoi who had conducted the post mortem of the dead body of the deceased. The said doctor conducted the post mortem on 09.05.2011 when he was posted at Sadar Hospital. The said witness has stated the time elapsed since death to be within 48 hours. He had conducted the post mortem at 10:15 a.m. Thus, the post mortem was conducted within 16 hours. However, the doctor has stated the time elapsed since death to be within 48 hours. Thus, we are of the view that the medical evidence does not support the version given by the so-called eye-witnesses that the occurrence took place on 08.05.2011 at about 06:30 p.m. From the evidence led by the prosecution, it is further revealed that the Investigating Officer did not seize the blood-stained soil from the place of occurrence nor the blood-stained clothes of the deceased were sent for necessary analysis to the Forensic Science Laboratory. Even there is no recovery/discovery of the weapon allegedly used in commission of the alleged incident from any of the appellants. It is further revealed that it is the specific defence of the appellants that they have been falsely implicated in the present case because of the election dispute. Thus, from the aforesaid evidence led by the prosecution, we are of the view that the prosecution has failed to prove the case against the appellants beyond reasonable doubt, despite which the Trial Court has recorded the impugned judgment of conviction and order of sentence. We have also gone through the reasoning recorded by the Trial Court and we are of the view that the Trial Court has committed grave error while passing the impugned judgment and order. Hence, the same deserve to be quashed and set aside. Accordingly, the impugned judgment of conviction dated 13.06.2018 and order of sentence dated 14.06.2018 passed by the learned 3rd Additional District and Sessions Judge, Araria, in connection with Sessions Trial No. 1151/2012, T.R. No.64/2017 (arising out of Bhargama P.S. Case No. 43/2011) are quashed and set aside. The appellants are acquitted of the charges levelled against them by the learned Trial Court. Since the appellant, namely Rajendra Yadav (in Cr. Appeal (D.B.) No. 940 of 2018) is in jail, he is directed to be released from custody forthwith, if his presence is not required in any other case. Rest all the appellants are on bail. They are discharged from the liabilities of their bail-bonds. he Patna High Court Legal Services Committee is, hereby, directed to pay ₹ 3,000 (Rupees Three Thousand) to Sandeep Kumar Pandey, learned Amicus Curiae as consolidated fee for the services rendered by him.

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Judgement Reviewed by – HARIRAGHAVA JP

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Delhi High Court Upholds Dishonoured Cheque Conviction : Cited Lack of Merit in the Contentions of the Appellant

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Case Title – Rajesh Kumar Jain Vs. J.C. Trading

Case Number – CRL. REV. P. 222/2024

Dated on – 14th May, 2024

Quorum – Justice Anoop Kumar Mendiratta

FACTS OF THE CASE
In the case of Rajesh Kumar Jain Vs. J.C. Trading, the Respondent J.C. Trading supplied “paper and board” to Rajesh Kumar, the Appellant in the case, via a bill dated 12th of August, 2014 for Rs. 5,26,728/-. The Appellant issued a cheque dated 9th of September, 2014 for Rs. 5,26,785/- to J.C. Trading in discharge of the liability for the goods supplied. The same cheque was dishonoured upon the presentation due to the “insufficient funds” as indicated by the bank return memo dated 10th of September, 2014. The Respondent, sent a legal notice dated 7th of October, 2014 to the Appellant in the case, demanding the payment. Despite the service of the notice, the Appellant failed to make the payment. Due to the non-payment, the Respondent instituted a complaint under Section 138 of the Negotiable Instruments Act, 1881, dealing with the dishonour of the cheques for the insufficiency of funds or if it exceeds the amount arranged to be paid from that account. On dated 8th of July, 2022, Rajesh Kumar Jain, the Appellant in the case was convicted and further on the 23rd of July, 2022, the Appellant was sentenced to four months of simple imprisonment and a fine of Rs. 8,50,000/-. In default of payment of the fine, he was to undergo an additional two months of simple imprisonment. The entire amount was directed to be paid to the Respondent.

ISSUES
The main issue of the case whirled around whether the cheque dated 9th of September,2014 was issued by the Appellant in discharge of a legally enforceable debt or liability towards the Respondent?
Whether the goods supplied by the Respondent to the Appellant were defective and whether they were returned by the Appellant, thus nullifying any liability under the cheque?
Whether the legal notice dated 7th of August, 2014, sent by the Respondent to the Appellant demanding for the payment, was duly served and whether the non-receipt of the legal notice could be valid reason for the Appellant?
Whether the presumption under Section 139 of the Negotiable Instruments Act, 1881, that the cheque was issued for the discharge of any debt or liability, was effectively rebutted by the Appellant?
Whether the Trial Court and the Appellate Court rightfully acknowledged the evidences and applied the legal principles in convicting the Appellant and upholding the sentence?
Whether the ledger produced by the Respondent, which was maintained in the electronic form, could be relied upon to prove the supply of goods and the existence of the liability?
Whether the contention of the Appellant regarding the cheque being issued as an advance payment and did not discharge of an existing liability holds merit under the circumstances of the case?
Whether there was any error concerning the Procedure or Jurisdiction in the findings and conclusions of the Trial Court and the Appellate Court that would warrant the intervention by the High Court in its revisional jurisdiction?

LEGAL PROVISIONS
Section 138 of the Negotiable Instruments Act, 1881 prescribes the Dishonour of Cheque for insufficiency, etc., of funds in the account
Section 139 of the Negotiable Instruments Act, 1881 prescribes the Presumption in favour of holder
Section 118(a) the Negotiable Instruments Act, 1881 prescribes the Presumption as to negotiable instruments of consideration
Section 251 of the Criminal Procedure Code, 1973 prescribes the Substance of accusation to be stated
Section 313 of the Criminal Procedure Code, 1973 prescribes the Power to examine the accused
Section 397 of the Criminal Procedure Code, 1973 prescribes the Calling for records to exercise powers to revision
Section 401 of the Criminal Procedure Code, 1973 prescribes the Power of High Court for revision
Section 65 of the Indian Evidence Act, 1872 prescribes the Cases in which secondary evidence relating to documents may be given
Section 27 of the General Clauses Act, 1897 prescribes the Meaning of Service by Post

CONTENTIONS OF THE APPELLANT
The Appellant, through their counsel, in the said case contented that the cheque was not issued in discharge of a legally enforceable debt or liability and that the goods supplied by the Respondent turned out to be defective and were returned, thus nullifying any liability.
It was asserted that the material supplied by the Respondent was defective and was returned through a goods return Challan dated 8th of September, 2014 and that there was no outstanding liability necessitating the issuance of the cheque.
Further it was contented that the Appellant acknowledged the cheque bearing his signature but contented that the particulars were filled in by the clerical staff of the firm of the Respondent and that the Appellant did not authorize the same.
The Appellant, asserted that they did not receive the legal notice dated 7th of October, 2014 sent by the Respondent, challenging the presumption of the due service of notice under Section 27 of the General Clauses Act, 1897 and that the presumption under the Section 139 of the Negotiable Instruments Act, 1881, was effectively rebutted by the presentation of a probable defence and that there was no outstanding debt as contented through relying on the testimonies and documentary evidences, inclusive of the goods return challan and the bank letter.
Moreover it was contented that the Respondent failed to furnish adequate the evidences to prove that the goods were not defective or that they were not returned and that was failure to examine the transporter, Mr. Kalim, who allegedly handled the return of goods.
Further the Appellants questioned the reliability of the ledger produced by the Respondent, asserting that it was maintained in the electronic form and not substantiated by other documentary evidences or corroborating testimony and that it was open to him to rely on the evidence led by the complainant to raise a probable defense and that he was not required to prove his defense beyond a reasonable doubt and that the burden or proof for rebutting the presumption under Section 139 of the Negotiable Instruments Act, 1881 was on the preponderance of probabilities.
The Appellants, through their counsel, in the said case relied on various precedents inclusive of the M/s. Indus Airways Pvt. Ltd. & Ors. Vs. M/s. Magnum Aviation Pvt. Ltd. & Anr. To contend that a cheque issued as an advance payment for goods not ultimately supplied or defective does not constitute a legally enforceable debt.

CONTENTIONS OF THE RESPONDENT
The Respondent, through their counsel, in the said case contented that the cheque dated 9th of September, 2014 was issued by the Appellant in discharge of a legally enforceable debt for the supply of goods (paper and board) as per the bill dated 12th August, 2014.
Further it was contented that the goods were duly supplied to and accepted by the Appellant without any immediate complaint about their quality or any defects.
Thus, on the presumption under Section 139 of the Negotiable Instruments Act, 1881, which mandates that the cheque was issued for the discharge of a debt or liability unless proven otherwise by the accused.
It was asserted by the Respondent that there were no credible evidences to prove that the goods were returned and that the goods return challan produced by the appellant was not substantiated by examining the transporter, Mr. Kalim, or any other corroborative evidence and that the legal notice dated 7th of October, was duly sent to the address of the Appellant and service could be presumed under Section 27 of the General Clauses Act, 1897 and that the claim of the Appellant was insufficient to rebut this presumption.
Moreover, it was contended that if the goods were indeed defective and returned, the Appellant should have taken steps to stop the payment of the cheque and that the failure to do so and the subsequent dishonour of the cheque for ‘insufficient funds’ indicated that the debt was acknowledged and that the cheque was issued in good faith.
The Respondent defended the reliability of their ledger, which was maintained in the electronic form, as per standard business practices and that the ledger corroborated the transaction and the outstanding liability and that the inconsistencies in the defense of the Appellant, inclusive of the claim that only ‘board’ was supplied instead of ‘paper and board’ and that in VAT coding, ‘paper and board’ are categorized under one code, and the bill reflected this coding practice.
The Respondent, through their counsel, in the said case contented that the Appellant failed to rebut the presumption under Section 139 of the Negotiable Instruments Act, 1881 and that the defense of the Appellant was not substantiated by credible evidences, and his failure to act prudently undermined his claims.

COURT ANALYSIS AND JUDGMENT
The court in the case of Rajesh Kumar Jain Vs. J.C. Trading, reaffirmed that under Section 139 of the Negotiable Instruments Act, 1881, once the execution cheque is admitted, there is a statutory presumption that the cheque was issued for the discharge of a debt or other liability and that this presumption is rebuttable, and the burden of proof lies on the accused to present a probable defense to rebut this presumption. The court observed that the Appellant failed to provide the sufficient evidence to rebut the presumption that the cheque was issued for a legally enforceable debt and that the defense of the Appellant that the goods were supplied were defective and returned was not supported by any credible evidences, especially, the Appellant did not present the transporter who allegedly returned the goods as a witness, nor did the Appellant provide any documentary evidence of the return. The court stated that the cheque issued by the Appellant was dishonoured due to insufficient balance and that the Appellant did not stop the payment of the cheque, which he could have done if the goods were really defective and returned and that the Appellant, additionally, did not respond to the legal notice sent by the Respondent. The court in this case noted that the ‘goods return challan’ presented by the Appellant lacked verification, and that the transporter involved in this process was not examined in the court. The court, thus, dismissed the criminal revision petition instituted by the Appellant as the court did not find any merits in the contentions of the Appellant and upheld the concurrent findings of the Trial Court and the Appellate Court. The court, in this case, upheld the conviction of the Appellant under Section 138 of the Negotiable Instruments Act, 1881 and the Appellant was directed to undergo the sentence imposed by the Trial Court, inclusive of four months of simple imprisonment, two additional month of simple imprisonment and a fine of Rs. 8,50,000. The court, in this case, directed that a copy of the order be forwarded to the Trial Court and the Superintendent of Jail for information and compliance with the order on the sentence as passed by the Trial Court.

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Judgement Reviewed by – Sruti Sikha Maharana

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Certified Copies of a Registered Will Have Been Deemed Valid Secondary Evidence in Probate Proceedings: The Delhi High Court Dismissed the Appeal of the Appellant and Allowed the Probate Proceedings

Blog, Delhi High Court , , , , ,

Case Title – Sahil Marwah & Anr. Vs. Vikas Malhotra & Ors.

Case Number – FAO (OS) 81/2023 & CM APPLs. 35932/2023, 35933/2023, CM APPL. 38987/2023

Dated on – 7th of May, 2024

Quorum – Hon’ble Acting Chief Justice and Justice Manmeet Pritam Singh Arora

FACTS OF THE CASE
In the case of Sahil Marwah & Anr. Vs. Vikas Malhotra & Ors., an appeal has been filed under the Section 10 of the Delhi High Court Act, 1966, read with Order XLIII Rule 1 of the Code of Civil Procedure, 1908, against orders dated 14th of March, 2023, and 6th of July, 2023 (referred to as “impugned orders”) passed in TEST. CAS. 17/2023 (referred to as “probate petition”). The Appellants in this present case are aggrieved as the Learned Single Judge entertained the probate petition instituted along with a certified copy of the registered will dated 2nd of August,2019, on the plea of the Petitioner that the original will was not available. The Appellants objected to the same, asserting that the institution of the original will is mandatory along with the probate petition. The Learned Single Judge, through an order dated 14th of March, 2023, rejected the objection of the maintainability at the threshold. The court granted the leave to the Petitioner (Respondent No. 1) to place on record the verification or the affidavit of one of the attesting witnesses to the will. Subsequently, on the 6th of July, 2023, the Learned Single Judge issued notice in the probate petition and directed the issuance of the citation without waiting for the amended probate petition, in proper form, to come on record. The Appellants asserted that the institution of the original will is mandatory along with the probate petition, whereas the Respondent No. 1 asserted that the probate petition is maintainable even with the certified copy of the registered will, as per Sections 237 and 276 of the Indian Succession Act, 1925.

ISSUES
The main issue of the case whirled around whether the institution of the original will is mandatory along with the probate petition, or if a certified copy of the registered will is sufficient when the original is not available?
Whether the interpretation of the Section 237 and 276 of the Indian Succession Act, 1925, governs the requirements for obtaining the probate when the original will is untraceable?
Whether the Learned Single Judge possessed the jurisdiction to entertain the probate petition instituted with a certified copy of the registered will when the original was not available?
Whether the objection raised by the Appellants concerning the non-filing of the original will can be considered at the threshold stage or should only be addressed after the completion of pleadings and evidence?
Whether the probate petition raised questions regarding the validity and execution of the registered will, which would be needed to be established during the proceedings?

LEGAL PROVISIONS
Section 10 of the Delhi High Court Act, 1966 prescribes the Power of Judge of the Delhi High Court
Order XLIII Rule I of Code of Civil Procedure, 1908 prescribes the Provision of Appeals from Orders
Section 59 of the Indian Succession Act, 1925 prescribes the Provision of Person Capable of Making Wills
Section 63 of the Indian Succession Act, 1925 prescribes the Provision of Execution of Unprivileged Wills
Section 69 of the Indian Succession Act, 1925 prescribes the Provision of Revocation of Will by testator’s marriage
Section 70 of the Indian Succession Act, 1925 prescribes the Provision of Revocation of Unprivileged Will or Codicil
Section 236 of the Indian Succession Act, 1925 prescribes the Provision of To Whom the Administration may not be granted
Section 237 of the Indian Succession Act, 1925 prescribes the Provision of probate of contents or lost of destroyed Will
Section 276 of the Indian Succession Act, 1925 prescribes the Provision of Petition for probate
Section 281 of the Indian Succession Act, 1925 prescribes the Provision of Verification of petition for probate by one witness to Will
Section 65 of the Indian Evidence Act, 1872 prescribes the Cases in which secondary evidence relating to documents may be given
Section 68 of the Indian Evidence Act, 1872 prescribes the Provision of Proof of execution of document required by law to be attested
Section 74(2) of the Indian Evidence Act, 1872 prescribes the Provision of Public records kept of private documents
Section 24 of the Probate and Administration Act, 1881 prescribes the Probate of copy or draft of lost will
Section 52 of the Registration Act, 1908 prescribes the Duties of registering officers when document presented
Section 57(2) of the Registration Act, 1908 prescribes that The copies of entries in Book No. 3 and in the index relating thereto shall be given to the persons executing the documents to which such entries relate, or to their agents, and after the death of the executants to any persons applying for such copies
Section 57(5) of the Registration Act, 1908 prescribes that All copies given under this section shall be signed and scaled by the registering officer, and shall be admissible for the purpose of proving the contents of the original documents

CONTENTIONS OF THE APPELLANTS
The Appellants, through their counsel, in the said case contented that the presumption of law is that if the original will is not instituted with the probate petition, it may have been destroyed by the Testatrix.
The Appellants, through their counsel, in the said case contented that without the original will, the attesting witness cannot verify the probate petition as required by Section 281 of the Indian Succession Act,1925 and that the verification by the attesting witness is deemed necessary for the original will and a certified copy of the registered will cannot be sufficient for this purpose.
The Appellants, through their counsel, in the said case contented with reference to the Section 68 of the Indian Evidence Act,1872, that a registered will does not carry any presumption under the law and therefore, cannot be served as the basis for maintaining the application of the probate and that a certified copy of the will acquired from the office of the Sub-Registrar is not a substitute for the original will.
The Appellants, through their counsel, in the said case contented that a court commissioner appointed in a separate suit proceeding between the parties reported that no will was discovered at the Testatrix place of residence and that the affidavits from the legatees (Respondent No. 3 and 4) states that they did not have the original will and that these factors indicate that the claim by the Respondent No. 1 of the original will being unavailable is inaccurate.

CONTENTIONS OF THE RESPONDENTS
The Respondents, through their counsel, in the said case contented that the presumption of the revocation due to unavailability of the original will is weak and rebuttable with the slightest evidence and that since the original will is untraceable, it is presumed to be lost and this issue of proof will be decided conclusively in the proceedings.
The Respondents, through their counsel, in the said case contented that the present appeal is an attempt to obstruct the probate proceedings and that the Appellants have delayed in instituting their replies to the probate petition merely because of the pendency of this appeal.
The Respondents, through their counsel, in the said case contented that the legal precedents relied upon by the Appellants are inapplicable to the present case and that those cases did not dismiss the probate petition at the admission stage on the ground of non-filing of the original will.

COURT ANALYSIS AND JUDGMENT
The court in the case of Sahil Marwah & Anr. Vs. Vikas Malhotra & Ors., analysed the legal provisions and the precedent cases cited by both the parties. The court referred to the Supreme Court judgment in Durga Prashad Vs. Debi Charan, which clarified that the absence of the original will does not ipso facto attract the presumption of revocation. The court stressed on the fact that the plea of revocation must be specifically pleaded and proved by the objector. The court referred to the Section 237 of the Indian Succession Act, 1925 concerning the permissibility of relying on a certified copy of a registered will, which allows the propounder to furnish the secondary evidence of the contents of the will if the original is lost. The court also cited the judgment of the Supreme Court in the Dhanpat Vs. Sheo Ram, which upheld the admissibility of a certified copy of a registered document. The court in this case, concluded that the objections raised by the Appellants lacked merit and that they had not specifically pleaded the revocation of the will as required by the Section 70 of the Indian Succession Act, 1925. Moreover, the unavailability of the original will did not disentitle the Respondent No. 1 from maintaining the probate petition based on the certified copy. The court in this case, dismissed the appeal and allowed the probate proceedings to continue and also allowed the condonation of delay in filing the appeal.

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Judgement Reviewed by – Sruti Sikha Maharana

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