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K’taka High Court grants relief to Accused after nearly 3 years due to Failure of Witness testimony to provide Incriminating Evidence.

CASE TITLE – Salman Chirik v. State of Karnataka

CASE NUMBER – CP NO.3782 OF 2024

DATED ON – 14.05.2023

QUORUM – Justice H.P. Sandesh

 

FACTS OF THE CASE

This petition was a successive bail petition of the Petitioner, who is accused the No.3. The Hon’ble High Court of Karnataka earlier in Crl.P.No.9818/2021, in view of the filing of the charge sheet, granted liberty to the petitioner to approach the Trial Court. The petitioner also approached this Court in Crl.P.No.7785/2022 and the same was rejected vide order dated 21.11.2022, on merits. The petitioner once again approached the Hon’ble High Court of Karnataka by filing a fresh petition in Crl.P.No.2600/2023 and the Court rejected the same vide order dated 14.06.2023, but with liberty to approach this Court after examination of the eye-witnesses.

 

ISSUES

Whether the evidence on record against the Petitioner/Accused No.3, is adequate to deny bail.

 

CONTENTIONS BY THE PETITIONER

The learned counsel for the petitioner submitted that the injured witnesses, as well as the eye-witnesses have been examined before the Trial Court as P.W.1 to P.W.7 and none of them have supported the case of the prosecution and during the course of cross-examination also, nothing was elicited from their mouth and nothing is there to appreciate in the matter on merits. He also brought to light that the Accused No.1 in the same case, facing similar charges was enlarged on bail by this same Court vide order dated 29.07.2022, and stated that the Petitioner in turn had been in Custody for 2 years and 8 months. He further went on to mention that Accused Nos.5 and 7 and this Petitioner are in custody and other than this petitioner and accused Nos.5 and 7, all are on bail. The learned counsel argued that in view of the injured witnesses and eye-witnesses who have not supported the case of the prosecution, the Court has to enlarge the petitioner on bail.

 

CONTENTIONS BY THE RESPONDENT

The learned High Court Government Pleader appearing for the respondent State submitted that the charges levelled against the Petitioner is different and the evidence on record is different. Hence, the petitioner is not entitled to bail.

 

COURT ANALYSIS AND JUDGEMENT

The Hon’ble High Court of Karnataka after hearing the arguments of both the parties, looked into the depositions of the injured witnesses and eye-witnesses. They stated P.W.1 to P.W.3, who have sustained injuries in the incident, though P.W.1 stated that when he went to pacify the Galata, he had sustained injuries on above the left eye, but he says that the accused persons were not there in the spot and his brother and Yasin were not subjected to assault by this petitioner. P.W.2 stated that someone had inflicted injury on his cheek and the said person is not before the Court. He was subjected to cross-examination and nothing had elicited from his mouth either. P.W.3 though says that he was also assaulted, none of the accused persons, who were present before the Court assaulted him and he had turned hostile. P.W.4 to P.W.7 are the eye-witnesses. The Hon’ble High Court of Karnataka stated that they have also not stated anything about the incriminating evidence about the petitioner herein and that when such being the material on record and when the eye-witnesses and the injured witnesses have been examined, in the absence of incriminating evidence, the petitioner is entitled for bail and the Criminal Petition was allowed, certain to some conditions, those being: (i) The petitioner shall execute his personal bond for a sum of Rs.2,00,000/- (Rupees Two Lakhs only) with two sureties for the like-sum to the satisfaction of the jurisdictional Court. (ii) The petitioner shall not indulge in tampering the prosecution witnesses. (iii) The petitioner shall appear before the jurisdictional Court on all future hearing dates, unless exempted by the Court for any genuine cause. (iv) The petitioner shall not leave the jurisdiction of the Trial Court without prior permission of the Court till the case registered against him is disposed of.

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Judgement Reviewed by – Gnaneswarran Beemarao

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Delhi High Court Sets Aside Arbitrator’s Rs. 20 Lakh Award for Loss of Profit Due to Lack of Evidence

CASE TITLE – M/S DIVYAM REAL ESTATE PVT LTD v. M/S M2K ENTERTAINMENT PVT LTD

CASE NUMBER – O.M.P. (COMM) 162/2020 & I.A. 14331/2012, I.A. 10655/2022

DATED ON – 22.05.2024

QUORUM – Justice Anup Jairam Bhambhani

 

FACTS OF THE CASE

Disputes had arisen between the parties from a Memorandum of Understanding dated 20.02.2006 (“MoU‟), under which the petitioner was to construct a mall in the name and style of “R-3 Mall‟ in Ahmedabad, Gujarat (“Mall‟) in which the respondent was to be provided space for running a multiplex on a lease basis. The bone of contention between the parties was, that the respondent alleged that the petitioner had committed a breach of the terms of the MoU by entering into a contract with a third party on 09.03.2006, thereby terminating the respondent’s contract. The respondent claimed that the termination was invalid and illegal, which compelled them to file a claim in arbitration. By way of the Arbitral Award, the petitioner has been directed to pay to the respondent the sum of Rs. 24,54,458.33 along with interest at the rate of 12% per annum. The said sum comprises two primary components: (i) the sum of Rs. 4,54,458.33 towards expenses held to have been incurred by the respondent towards advertisement and exhibition charges etc. as detailed in the award; and (ii) the sum of Rs.20,00,000.00 towards „loss of profit‟ suffered by the respondent, as also detailed in the award.

 

ISSUES

Whether the Learned Arbitrator was justified in issuing an award of Rs. 20,00,000.00 by way of loss of profit?

 

CONTENTIONS BY THE PETITIONER

The Learned Counsel appearing for the petitioner submitted that in the petition they have raised two principal contentions impugning the Arbitral Award. The first is that the MoU signed between the parties was merely an “agreement to agree‟ and was therefore not a concluded or enforceable contract, and second, that the award of Rs. 20,00,000.00 in favour of the respondent by way of loss of profit, is untenable since it was based entirely on conjectures and surmises. The petitioner’s main contention is that the learned Arbitrator has awarded loss of profit to the respondent based on no evidence tendered on record, and the Arbitral Award is in fact self-contradictory in its reasoning

 

CONTENTIONS BY THE RESPONDENT

The Learned counsel for the respondent has argued that the learned Arbitrator has returned a finding that the petitioner was guilty of breach of the MoU, thereby also dismissing the petitioner‟s counterclaims. It was argued that by way of the present petition, the petitioner is therefore asking the court to re-appreciate evidence adduced before the learned Arbitrator, which is impermissible under section 34 of the A&C Act. It was submitted that the award is neither contrary to law nor against the public policy of India. He had drawn the attention of the Hon’ble High Court to an affidavit dated 01.02.2010 tendered by Mr. Sunil Gupta, Deputy Manager of the respondent by way of evidence in the arbitral proceedings, in which, it was argued, the witness has furnished details of the expenses incurred by the respondent towards performing its obligations under the MoU. It was pointed out that the said witness has deposed that the respondent spent a sum of Rs. 20,08,343.00 towards payment made to various parties for performing its part under the MoU. The Learned Counsel also stated that in addition to such expenses, the respondent has also suffered loss of goodwill and loss of profit, resulting from termination of the MoU by the petitioner.

 

COURT ANALYSIS AND JUDGEMENT

The Hon’ble High Court of Delhi, after looking through the evidence before them and the Arbitrator’s reasoning for issuing the award was of the opinion that on the limited challenge pressed on behalf of the petitioner, viz. a challenge only to the award of Rs. 20 lacs to the respondent towards loss of profit, the discussion and reasoning contained in the Arbitral Award was sparse and cryptic. They noticed that the learned Arbitrator first makes a passing observation that the respondent had incurred loss of profit, which he says has been calculated for the period from 20.06.2006 to 20.12.2008 based on the estimated loss of and then proceeds to observe that calculating loss of profit must involve a certain amount of conjecture and that there cannot be straight-jacket formula for that purpose. However, the learned Arbitrator thereafter proceeds to observe “it is speculative if any profit would be made or not. However, it cannot be ignored that it is the respondent who had committed the breach.” Therefore, the Hon’ble High Court noticed that the learned Arbitrator was of the view that even the foundational fact as to whether the respondent would have made a profit at all was in doubt. IIt the opinion of the Hon’ble High Court, that there is a clear discordance, whereby on the one hand, the learned Arbitrator holds that whether or not the respondent would have made any profit is itself a matter of speculation, but on the other hand, he proceeds to award loss of profit of Rs. 20 lacs, drawing that figure literally from thin air. Hence, they stated that, the learned Arbitrator did not proceed even on the basis of the evidence on record, that was available inter alia by way of the evidence tendered before him. The Hon’ble High Court then held that it was persuaded to allow the present petition, holding that the award of Rs. 20 lacs to the respondent towards loss of profit was based on no evidence on record, and in fact, the learned Arbitrator has failed to even decide whether the respondent had incurred, or would have incurred, any loss of profit at all, and stated that the Arbitral Award dated 07.03.2012 is to be set aside.

 

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Judgement Reviewed by – Gnaneswarran Beemarao

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Bombay High Court acquits a man convicted for murder for lack of evidence

Title: Suresh v. The State of Maharashtra and Ors.

Decided on: 18th JULY, 2023

+ Cri.Apeal.513/2016

CORAM: SMT. VIBHA KANKANWADI AND ABHAY S. WAGHWASE, JJ.

Facts of the Case:

Appellant had illicit relations with one Shobhabai. Deceased Anil desisted appellant from maintaining and continuing such relations. Therefore, according to prosecution, deceased was viewed as obstruction and to eliminate him, appellant called him near the water tank and by use of knife he stabbed him to death and thereafter threw the body in the well for causing disappearance of evidence. Hence, he convicted for offences under IPC Sec. 302 and 201. This was challenged by him in this appeal.

Issues

Was the conviction of the appellant valid?

Contentions

The appellants claimed that the conviction was wrong for there was no incriminating evidence proving his guilt; The conviction was based only on circumstantial evidence and not any direct evidence. The prosecution was not able to prove beyond reasonable doubt and therefore, the accused must be given the benefit of doubt.

The Respondents contented that the appellant was rightly contended as there was enough incriminating evidence. The appellant being the last person in the company of deceased, he is rightly arrested, tried and rightly held guilty. As per the statement of the deceased’s wife he went to the tank (place where he was found dead) only after receiving a call from the appellant. The appellant was also seen purchasing a knife. All the evidence directly points to his involvement in the death and therefore, he is rightly convicted.

Decision

The evidence presented by the Respondents is not direct evidence. None of the circumstances firmly and cogently proved beyond reasonable doubt. The chain of circumstances is not getting complete. Therefore, case of prosecution cannot be said to be proved beyond reasonable doubt.

Therefore, the appellant was acquitted and the previous order of the Court was set aside.

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Written by- Aparna Gupta, University Law College & Dept. of Studies in Law

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