ORDER 14 (2) OF CPC AND LAW ON FRAMING PRELIMINARY ISSUES

 

Order 14 (2) OF CPC and LAW ON FRAMING PRELIMINARY ISSUES

The stage of framing preliminary issues is of vital importance in any dispute in civil cases. No doubt, whether the plaint is required to be returned or not or whether it is to be rejected or not are the other aspect which is also linked with the desirability of framing preliminary issues in apt cases. Thus, principles of Order 7 Rule 10 of Code of Civil Procedure (CPC) which contains the principles of return of plaint also need elucidation. Another aspect as stated is the issue of rejection of plaint has been illustrated in Order 7 Rule 11 (a)(b)(c) & (d) of CPC and if it conforms to the aforesaid prescription, the plaint can be rejected. The power of Courts under Order 7 Rule 10 of CPC is separate and distinct. The plaint can be returned due to lack of pecuniary jurisdiction and if otherwise it is filed in the wrong forum. The issues of disputes and claim of exclusive jurisdiction if it is based on certain facts, then, being the question of facts and law, the issues ought to be framed in that regard. Preliminary issues are framed for limitation and jurisdiction. The preliminary issues are framed for question of law. It is generally understood that if mixed question of facts and law existed, then, framing of issues are recommended and the findings are required to be returned on each issues including mixed question of law and facts. In fact, the Supreme Court has also held that rather than framing preliminary issues for jurisdiction and limitation, on all such issues including the issues of limitation and jurisdiction, findings ought to be returned after full dress trial and after leading of evidence. The law in this context is changed after amendment in the Section 14(2) of CPC in 1976.

That to analyse it further, the provisions of Order XIV Rule 2 of the Code to contend such Order XIV Rule 2 has been substituted by Central Act No. 104 of 1976, whereby the Court is mandated to pronounce judgment on all issues, even though the suit can be disposed of on a preliminary issue. Such amendment was necessitated to avoid delay in the disposal of the proceedings inasmuch as if only a preliminary issue is decided, the further appeal and revision would be preferred only against the preliminary issue and after the preliminary issue is decided in favour of the plaintiffs, the evidence has to be led on the remaining issues. Therefore, to ensure expeditious disposal of the proceedings and to avoid possibility of remand by the appellate or revisional jurisdiction, it was made mandatory for the Court to record reasons on all the issues. Such finding would obviate the possibility of remand at appellate or revisional stage, even if the finding on preliminary or other issues are to be reversed.

 

The Order XIV Rule 2 before amendment by the Act No. 104 of 1976 reads thus:

“R. 2. Where issues both of law and of fact arise in the same suit, and the Court is of opinion that the case or any part thereof may be disposed of on the issues of law only, it shall try those issues first, and for that purpose may, if it thinks fit, postpone the settlement of the issues of fact until after the issues of law have been determined.”

 

The Order XIV Rule 2 after the substitution of Rule 2 by the Act No. 104 of 1976, effective from 1.4.1977, reads thus:

 

“2. Court to pronounce judgment on all issues.—

(1) Notwithstanding that a case may be disposed of on a preliminary issue, the Court shall, subject to the provisions of sub-rule (2), pronounce judgment on all issues.

(2) Where issues both of law and of fact arise in the same suit, and the Court is of opinion that the case or any part thereof may be disposed of on an issue of law only, it may try that issue first if that issue relates to—

(a) the jurisdiction of the Court, or

(b) a bar to the suit created by any law for the time being in force, and for that purpose may, if it thinks fit, postpone the settlement of the other issues until after that issue has been determined, and may deal with the suit in accordance with the decision on that issue.”

 

The Supreme Court, recently, in a matter captioned as Sathyanath & Anr. Vs Sarojmani, bearing Civil Appeal No. 3680 of 2022 has deliberated in detail on the above aspect. Before adverting to the findings of Supreme Court, the facts of the case may be reproduced in nutshell.

                                                  FACTS

1.   The plaintiffs-appellants had preferred original suit against the Defendant/ respondent for seeking a declaration that the appellants was absolute owners of the suit property and for permanent injunction restraining the defendant and their agents in disturbing the peaceful possession and enjoyment of the suit property by the appellants in any manner. Initially, the defendant filed an application under Order VII Rule 11 of the Code of Civil Procedure, 19081 for rejection of the plaint but the same was dismissed by the trial court. It is thereafter, the defendant filed an application to frame issues under Order XIV Rule 2(2) of the Code to treat the following as the preliminary issues:

 

1.  Whether the suit is not hit by res judicata and estoppel as claimed by the defendant in the written statement?

2. Whether the suit is not hit by res judicata and estoppel as claimed by the defendant in the written statement?   

3. Whether the suit is not barred by limitation as contented by the defendant in the written statement?

4. Whether the Plaintiffs have deliberately and wantonly abused the process of the court, as contented by the defendant in the written statement?

5. Whether the suit is not valued properly and court fee paid is deficient as claimed by the defendant in P the Written statement.?

 

2.   That the learned trial court dismissed the application of the defendant and the order of the learned trial court was challenged in revision petition under Article 227 of the Constitution of India wherein the High Court ordered the framing of issue of res judicata as preliminary issue.

 

LAW

The law in this regard could be traced back to 1964 when, Supreme Court had the occasion to consider the above provision in a judgment reported as Major S. S. Khanna v. Brig. F. J. Dillon AIR 1964 SC 497. It was held that under Order XIV Rule 2 of the Code where issues both of law and of fact arise in the same suit and the Court is of opinion that the case or any part thereof may be disposed of on the issues of law only, it shall try those issues first, and postpone the settlement of the issues of fact until other issues of law have been determined. It was held as under:

“18. ……. Under Order 14 Rule 2 Code of Civil Procedure, where issues both of law and of fact arise in the same suit, and the Court is of opinion that the case or any part thereof may be disposed of on the issues of law only, it shall try those issues first, and for that purpose may, if it thinks fit, postpone the settlement of the issues of fact until after the issues of law have been determined. The jurisdiction to try issues of law apart from the issues of fact may be exercised only where in the opinion of the Court the whole suit may be disposed of on the issues of law alone, but the Code confers no jurisdiction upon the Court to try a suit on mixed issues of law and fact as preliminary issues. Normally all the issues in a suit should be tried by the Court: not to do so, especially when the decision on issues even of law depend upon the decision of issues of fact, would result in a lopsided trial of the suit.”

                             

How, the various high courts over the years have dealt with the aspect arising out of Order 14 (2) of Code of Civil Procedure is worth consideration.

 

Allahabad High Court

 

The amended provision of Order XIV came up for consideration before the Full Bench of Allahabad High Court in a judgment reported as Sunni Central Waqf Board and Ors. v. Gopal Singh Vishrad and Ors AIR 1991 ALL 89.  It was held that material changes had been brought about in CPC by substituting Order XIV Rule 2 of the Code. The word ‘shall’ in the un-amended provision has been replaced by the word ‘may’ in the substituted provision, therefore, it is now discretionary for the Court to decide the issue of law as a preliminary issue, or to decide it along with the other issues. It was further held that even all issues of law cannot be decided as preliminary issues and only those issues of law falling within the ambit of clause (a) and (b) of sub-rule (2) of Rule 2 could be decided. The High Court held as under:

 

“22. Under the above provision once the court came to the conclusion that the case or any part thereof could be disposed of on the issues of law only it was obliged to try those issues first and the other issues could be taken up only thereafter, if necessity survived. The court had no discretion in the matter. This flows from the use of the word “it shall try those issues first”. Material change has been brought about in legal position by amended O. 14, R. 2 which reads as follows:—

 

24. The word “shall” used in old O. 14, R. 2 has been replaced in the present Rule by the word “may”. Thus now it is discretionary for the Court to decide the issue of law as a preliminary issue or to decide it along with the other issues. It is no longer obligatory for the Court to decide an issue of law as a preliminary issue.

25. Another Change brought about by the amended provision is that not all issues of law can be decided as preliminary issues. Only those issues of law can be decided as preliminary issues which fell within the ambit of cls. (a) and (b) of sub-r. (2) of R. 2 of O. 14. Cl. (a) mentions “jurisdiction of the Court” and clause (b) deals with “bar to the suit created by any law for the time being in force.” In the present case cl. (a) is not attracted. The case is sought to be brought within the ambit of cl. (b). For bringing it under cl. (b) Limitation Act and the Muslim Waqf Act have been invoked.”

 

HIMACHAL PRADESH HIGH COURT

 

A Full Bench of Himachal Pradesh High Court in a judgment reported as Prithvi Raj Jhingta & Anr. v. Gopal Singh & Anr AIR 2007 HP 11, has held as under:

“8. The legislative mandate is very clear and unambiguous. In the light of the past experience that the old Rule 2 whereby, in the fact-situation of the trial Court deciding only preliminary issues and neither trying nor deciding other issues, whenever an appeal against the judgment was filed before the Appeal Court and the Appeal Court on finding that the decision of the trial Court on preliminary issues deserved to be reversed, the case per force had to be remanded to the trial Court for trial on other issues. This resulted in delay in the disposal of the cases. To eliminate this delay and to ensure the expeditious disposal of the suits, both at the stage of the trial as well as at the appeal stage, the legislature decided to provide for a mechanism whereby, subject to the exception created under sub-rule (2), all issues, both of law and fact were required to be decided together and the suit had to be disposed of as a whole, of course based upon the findings of the trial Court on all the issues, both of law and fact.

 

9. Based upon the aforesaid reasons therefor, and in the light of legislative background of Rule 2 and the legislative intent as well as mandate based upon such background, as well as on its plain reading, we have no doubt in our minds that except in situations perceived or warranted under sub-rule (2) where a Court in fact frames only issues of law in the first instance and postpones settlement of other issues, under sub-rule (1), clearly and explicitly in situations where the Court has framed all issues together, both of law as well as facts and has also tried all these issues together, it is not open to the Court in such a situation to adopt the principle of severability and proceed to decide issues of law first, without taking up simultaneously other issues for decision. This course of action is not available to a Court because sub-rule (1) does not permit the Court to adopt any such principle of severability and to dispose of a suit only on preliminary issues, or what can be termed as issues of law. Sub rule (1) clearly mandates that in a situation contemplated under it, where all the issues have been framed together and have also been taken up for adjudication during the course of the trial, these must be decided together and the judgment in the suit as a whole must be pronounced by the Court covering all the issues framed in the suit.”

                

PATNA HIGH COURT

The Patna High Court in a judgment reported as Dhirendranath Chandra v. Apurba Krishna Chandra and Ors AIR 1979 Pat 34 held that even if the case may be disposed of on a preliminary issue, the Court is bound to pronounce judgment on all the issues, subject to the provision in sub-rule (2) according to which if the case or any part thereof may be disposed of on issue of law only and if that issue relates to jurisdiction of the Court or a bar to the suit created by law for the time being in force, the Court may try such issue first. The High Court held as under:

“6. A plain reading of R. 2 will show that ordinarily even if the case may be disposed of on a preliminary issue, the Court is bound to pronounce judgment on all issues. This ordinary rule is subject to only one exception which has been provided in sub rule (2) according to which if the case or any part thereof may be disposed of on issue of law only and if that issue of law relates to the jurisdiction of the Court or a bar to the suit created by any law for the time being in force the court may try such issue first. It is, therefore, clear that a departure from the ordinary rule provided in sub-rule (1) of R. 2 can be made by the Court only in the circumstances mentioned in sub-rule (2) and even in these circumstances the Court has only a discretion that it may try an issue of law relating to the points mentioned in clauses (a) and (b) of sub-rule (2) as a preliminary issue before framing other issues. There is, however, nothing in sub-rule (2) which in my opinion makes it obligatory for the Court to try such an issue first in all cases. If, therefore, the Court is of opinion that in any particular case it will be more expedient to try all the issues together and therefore, if it refuses to try and decide any issue of law even on the points referred to in cls. (a) and (b) of sub rule (2) as a preliminary issue before taking up other issues”.

                                       

                                                  BOMBAY HIGH COURT

The Bombay High Court in a judgment reported as Usha Sales Ltd. v. Malcolm Gomes and Ors AIR 1984 Bom 60  held that after the amendment, a duty is cast upon the Court that it must proceed to hear all the issues and pronounce the judgment on the same, except that the Court may try an issue relating to the jurisdiction of the Court or to the legal bar to the suit as a preliminary issue. It was held to be more in the nature of discretion rather than a duty. It was held as under:

“11. From the above it is easily seen that there is an obligation cast upon the Court that even though a case may be disposed of on a preliminary issue the Courts shall subject to the provision of sub-rule (2) pronounce judgment on all issues. In other words, the obligation to decide a question of law as a preliminary issue if that decision disposes of the case or part of the case is no longer, there. Similarly, the discretion to decide any other issue as a preliminary issue has been taken away totally from the Court. On the other hand, a duty is cast upon the Court that it must proceed to hear all the issues and pronounce judgment on the same.

 

12. There is, however, a small exception carved out to the above provision. The Court may try an issue relating to the jurisdiction of the Court or to the legal bar to the suit as a preliminary issue but this is more in the nature of a discretion rather than a duty and the Court is not bound to try any issue despite the provision contained in sub-r. (2) of R. 2 of O. 14 of the Code. The words “it may try” are clearly indicative of the fact that discretion is given to the Court and no duty is cast upon the Court to decide any issue as a preliminary issue.”

 

 

 

PUNJAB & HARYANA HIGH COURT

The Punjab and Haryana High Court in a judgment reported as Hardwari Lal v. Pohkar Mal and Ors AIR 1978 P&H 230 had the occasion to compare the provision of Order XIV Rule 2 prior to and after the amendment and held as under:

“5. A comparative reading of the said provision as it existed earlier to the amendment and the one after amendment would clearly indicate that the consideration of an issue and its disposal as preliminary issue has now been made permissible only in limited cases. In the unamended Code, the categorization was only between issues of law and of fact and it was mandatory for the Court to try the issues of law in the first instance and to postpone the settlement of the issues of fact until after the issues of law had been determined. On the other hand, in the amended provision there is a mandate to the Court that notwithstanding that a case may be disposed of on a preliminary issue, the Court has to pronounce judgment on all the issues. The only exception to this is contained in sub-rule (2). This sub rule relaxes the mandate to a limited extent by conferring a discretion upon the Court that if it is of opinion that the case or any part thereof may be disposed of “on an issue of law only,” it may try that issue first. The exercise of this discretion is further limited to the contingency that the issue to be so tried must relate to the jurisdiction of the Court or a bar to the suit created by a law in force.”

 

JAMMU & KASHMIR HIGH COURT

The Jammu and Kashmir High Court in a judgment reported as Smt. Aruna Kumari v. Ajay Kumar AIR 1991 J&K 1 held as under:

 

“4. …..Admittedly both the parties have to lead evidence regarding both the issues. In case issue No. 2 is allowed to be treated as preliminary the parties will certainly lead evidence in the case and instead of disposing of the case expeditiously it will prolong the matter and frustrate the very basis of law contained in Order XIV, Rule 2, Civil Procedure Code. The evidence to be led by both the parties will almost cover both the issues and it cannot, therefore, be said that by allowing issue No. 2 to be treated as preliminary the trial of the case would be expedited. When we review the whole law on the point it becomes clear that where issue of jurisdiction is a mixed question of law and fact requiring evidence to be recorded by both the sides same cannot be treated as a preliminary issue.”

                             

                                             SUPREME COURT

In furtherance to the earlier judgment of Supreme Court as reported in Major S. S. Khanna (Supra)  The Supreme Court in a judgment reported as Ramesh B. Desai and Ors. v. Bipin Vadilal Mehta and Ors. (2006) 5 SCC 638, wherein it was held as under:

 

“13. Sub-rule (2) of Order 14 Rule 2 CPC lays down that where issues both of law and of fact arise in the same suit, and the court is of the opinion that the case or any part thereof may be disposed of on an issue of law only, it may try that issue first if that issue relates to (a) the jurisdiction of the court, or (b) a bar to the suit created by any law for the time being in force. The provisions of this Rule came up for consideration before this Court in Major S.S. Khanna v. Brig. F.J. Dillon [(1964) 4 SCR 409 : AIR 1964 SC 497] and it was held as under: (SCR p. 421)

Though there has been a slight amendment in the language of Order 14 Rule 2 CPC by the amending Act, 1976 but the principle enunciated in the above quoted decision still holds good and there can be no departure from the principle that the Code confers no jurisdiction upon the court to try a suit on mixed issues of law and fact as a preliminary issue and where the decision on issue of law depends upon decision of fact, it cannot be tried as a preliminary issue.”

 

The Supreme Court has therefore reiterated the principles enunciated in Major S. S. Khanna (Supra) and it is further held that the Code confers no jurisdiction upon the Court to try a suit on mixed issues of law and fact as a preliminary issue and where the decision on issue depends upon the question of fact, it cannot be tried as a preliminary issue. The said finding arises from the provision of Order XIV Rule 2 clause (a) and (b).

After the amendment, discretion has been given to the Court by the expression ‘may’ used in sub-rule (2) to try the issue relating to the jurisdiction of the Court i.e. territorial and pecuniary jurisdiction, or a bar to the suit created by any law for the time being in force i.e., the bar to file a suit before the Civil Court. Hence, if Order XIV Rule 2 is read along with Order XII Rule 5, the Court is expected to decide all the issues together unless the bar of jurisdiction of the Court or bar to the suit in terms of sub-rule (2) clause (a) and (b) arises. The intention to substitute Rule 2 is the speedy disposal of the lis on a question which oust either the jurisdiction of the Court or bars the plaintiff to sue before the Civil Court.

Thus, if the issue is a mixed issue of law and fact, or issue of law depends upon the decision of fact, such issue cannot be tried as a preliminary issue. In other words, preliminary issues can be those where no evidence is required and on the basis of reading of the plaint or the applicable law, if the jurisdiction of the Court or the bar to the suit is made out, the Court may decide such issues with the sole objective for the expeditious decision. Thus, if the Court lacks jurisdiction or there is a statutory bar, such issue is required to be decided in the first instance so that the process of civil court is not abused by the litigants, who may approach the civil court to delay the proceedings on false pretext.

The Supreme Court in A. Shanmugam v. Ariya Kshatriya Rajakula Vamsathu Madalaya Nandhavana Paripalanai Sangam & Ors (2012) 6 SCC 430 has held as under:

“39. Our courts are usually short of time because of huge pendency of cases and at times the courts arrive at an erroneous conclusion because of false pleas, claims, defences and irrelevant facts. A litigant could deviate from the facts which are liable for all the conclusions. In the journey of discovering the truth, at times, this Court, at a later stage, but once discovered, it is the duty of the court to take appropriate remedial and preventive steps so that no one should derive benefits or advantages by abusing the process of law. The court must effectively discourage fraudulent and dishonest litigants.”

 

The aforesaid judgments if put together in a broad canvas, it may appear that the judgments are in consonance with the principles laid down by the Supreme Court  in Ramesh B. Desai (Supra) that not all issues of law can be decided as preliminary issues. Only those issues of law can be decided as preliminary issues which fell within the ambit of clause (a) relating to the “jurisdiction of the Court” and (b) which deal with the “bar to the suit created by any law for the time being in force.” The reason to substitute Rule 2 is to avoid piecemeal trial, protracted litigation and possibility of remand of the case, where the appellate court differs with the decision of the trial court on the preliminary issues upon which the trial court had decided.

 

In SATHYANATH (Supra) thus Supreme Court has summarized in para 33:

 

33. Keeping in view the object of substitution of sub-Rule (2) to avoid the possibility of remanding back the matter after the decision on the preliminary issues, it is mandated for the trial court under Order XIV Rule 2 and Order XX Rule 5, and for the first appellate court in terms of Order XLI Rules 24 and 25 to record findings on all the issues.

Therefore, it was held that the order of the High Court remanding the matter to the learned trial court to frame preliminary issues runs counter to the mandate of Order XIV Rule 2 of the Code and thus, not sustainable in law. The learned trial court should record findings on all the issues so that the first appellate court has the advantage of the findings so recorded and to obviate the possibility of remand if the suit is decided only on the preliminary issue. The amendment in 1976 in the Order 14(2) of Code of Civil Procedure appears to have been necessitated due to the fact that framing of preliminary issues and appeal/revision against such framing or not framing could consume long period of time and hence, it was felt necessary that the preliminary issues should only be framed when it is only on legal issues as narrated therein and on pure question of law and not otherwise. The discretion is therefore accorded to the Courts, whether to frame preliminary issues after the amendment with the object of expediency. The underlying object is to conclude the trial on all plausible issues, rather than to deliberate on preliminary issues and remain prone to appeals or revisions, thereby in effect halting the process of effective adjudication. What therefore follows is that unless in bare reading of plaint and documents, if the bar of jurisdiction or if the plaint is otherwise explicitly barred by law that preliminary issues could be framed and not otherwise. The aforesaid discussions are in sync with the judgments/precedents are a pointer to that.

                                           -------

                                            Anil K Khaware

Founder & Senior Associate

Societylawandjustice.com           

COMPLAINTS U/S 138 OF NEGOTIABLE INSTRUMENTS ACT: EFFECTIVE REBUTTAL

 

COMPLAINTS U/S 138 OF NEGOTIABLE INSTRUMENTS ACT: EFFECTIVE REBUTTAL

A recent judgment rendered by Delhi High Court in a matter captioned as SP Dua Vs O.P Dewan bearing Crl LP No. 530/2019 (decided in 2024) is a pointer encapsulating the principles when orders of acquittals in cheque bouncing case may be sustained. The law as regards rebuttals, preponderance of probabilities and such other ancillary aspects have been comprehensively dealt with in the above cases. Not only that, even the parameter of granting leave to appeal to the prosecution in such cases/complaints are also deliberated. The aforesaid judgment also dealt with the judicial precedents on the law of criminal complaints, more particularly, u/s 138 of Negotiable Instruments Act and law for leave to appeal filed u/s 378 of Cr.P.C and corresponding section 419 of Bharitya Nyaya Suraksha Sanhita 2023 (BNSS) appeals u/s 138 Negotiable instruments Act.

                          FACTS IN NUTSHELL

For a perspective, in nutshell, it may be worthwhile to refer to terms and tenor of complaint u/s 138 of Negotiable instruments Act. The complaint in SP Dua (Supra) relates to alleged loan transactions. It is alleged that the petitioner during one visit took away a signed cheque from the office in the absence of the respondent. The respondent/accused while admitted his signature on the cheque in dispute, however, it was disputed that any loan was taken from the petitioner/complainant. In fact, it was pleaded by the respondent in the defence that he had instead advanced a loan of Rs 5.95 Lakhs to the petitioner on different occasions. It was also stated in his statement u/s 313 of Cr.P.C that when the complainant failed to repay the loaned amount, the parties arrived at a settlement dated 21.08.2011 for Rs 4.25 lakhs. It was further stated that out of the said amount, the amount of Rs 50,000/- was received on 21.08.2011 and the remaining amount of Rs 3.75 Lakhs was received on 23.08.2011 against a written acknowledgement. It was also contended that after the settlement the parties maintained cordial relations.

The learned Trial Court, had acquitted the respondent, of the offence under Section 138 of the NEGOTIABLE INSTRUMENTS Act, noting that the case of the petitioner was full of contradictions and inconsistencies and finding the claim of the petitioner that the second amount on the settlement was merely Rs 375 instead of Rs 3.75 lakhs was rather absurd. It was also observed that the respondent had been able to rebut the presumptions under Section 118 (a)  and Section 139 of the NEGOTIABLE INSTRUMENTS Act, as the documents on record and the testimony of DW2 corroborated his defence. The order of acquittal was thus impugned before the High Court.

                          REBUTTAL: How Made

The learned Trial Court noted that the evidence of the complainant was on a shaky ground due to the discrepancies in the version of the complainant. A bare perusal of the petitioner's statement and cross-examination shows that there are evidently flagrant inconsistencies. In that backdrop, the ld Trial Court had noted that the petitioner on multiple occasions had contradicted his own stand and that too in the material aspects of allegations raised in the complaint. For instance, the complainant, initially claimed that the loan in question of Rs. 4.25 Lacs was advanced by him on 21.08.2011 and that the document i.e. acknowledgement was executed on the same date.  Though, in his cross-examination, he admitted that the said document was in fact executed on 23.08.2011 on which date, the accused claims to have received the remaining settlement amount. During the course of trial, the complainant introduced a new story. On the one hand in his reply to the notice sent by the accused, complainant had claimed that on 22.03.2011, he had visited the house of the accused and saw two unknown persons demanding Rs. 5 Lacs from the accused on gun point. He claimed that in order to help the accused, on 23.03.2011, he advanced the loan in question to the accused. Strangely, during cross-examination, however, the said date was also disputed by the complainant and yet again he again contradicted himself and claimed that he had visited the house of the accused on 22.08.2013 and not on 22.03.2011.  He further claimed to have advanced the loan in question to the accused on 23.08.2013.

The defence witness had also corroborated the stand of respondent/accused.

In para no. 17 the Delhi High Court has held as under:

“17. It is trite law that a Court while considering the challenge to an order of acquittal, in exercise of jurisdiction under Section 378 of the CrPC, is empowered to reconsider the evidence on record and reach its own conclusions, however, it is to be kept in mind that there is a double presumption of innocence in favour of the accused. High Court ought to only interfere with the finding of acquittal if it finds that the appreciation of evidence is perverse Ref: Rajaram s/o Sriramlulu Naidu (since deceased) through LRs:Criminal Appeal No. 1978 of 2013]”.

Similarly, in para no.18 it is observed as under:

18. The Hon'ble Apex Court in the case of Chandrappa Vs State of Karnataka: (2007) 4 SCC 415 has expounded upon the powers of the Appellate Court while dealing with an order of acquittal:

"42. From the above decisions, in our considered view, the following general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal emerge:

(1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded.

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

(3) Various expressions, such as, "substantial and compelling reasons", "good and sufficient grounds", "very strong circumstances", "distorted conclusions", "glaring mistakes", etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of "flourishes of language" to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion.

(4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court. (5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court."

Further, in Para No.19 it is held as under:

19. The present case concerns the offence under Section 138 of the NEGOTIABLE INSTRUMENTS Act. The Hon'ble Apex Court in the case of Rohitbhai Jivanlal Patel v. State of Gujarat : (2019) 18 SCC 106 had observed as under:

"12. According to the learned counsel for the appellant-accused, the impugned judgment is contrary to the principles laid down by this Court in Arulvelu Vs State (2009) 10 SCC 206 : (2010) 1 SCC (Cri) 288] because the High Court has set aside the judgment of the trial court without pointing out any perversity therein. The said case of Arulvelu Vs State  (2009) 10 SCC 206 : (2010) 1 SCC (Cri) 288] related to the offences under Section 304-B and 498-A  IPC. Therein, on the scope of the powers of the appellate court in an appeal against acquittal, this Court observed as follows :

"36. Careful scrutiny of all these judgments leads to the a conclusion that the appellate court should be very slow in setting aside a judgment of acquittal particularly in a case where two views are possible. The trial court judgment cannot be set aside because the appellate court's view is more probable. The appellate court would not be justified in setting aside the trial court judgment unless it arrives at a clear finding on marshalling the entire evidence on record that the judgment of the trial court is either perverse or wholly unsustainable in law."

                                  ANALYSIS

According to Delhi High Court, the aforesaid principles have stood the test of time. The appellate court, ordinarily does not upset the judgment of acquittal, if the view taken by the trial court is one of the possible views of matter and unless the appellate court arrives at a clear finding that the judgment of the trial court is perverse i.e. not supported by evidence on record or contrary to what is regarded as normal or reasonable; or is wholly unsustainable in law, that the interference could be warranted. Such general restrictions are essentially to remind the appellate court that an accused is presumed to be innocent unless proved guilty beyond reasonable doubt and a judgment of acquittal further strengthens such presumption in favour of the accused. No doubt such restrictions are to be ascertained in the context of the particular matter before the appellate court and the nature of inquiry held therein. There are no reason as to why such rule, albeit, with some rigour cannot be applied in a matter relating to the offence under Section 138 of the NEGOTIABLE INSTRUMENTS Act, , more so, in the face of principles of presumption drawn that the holder has received the cheque for the discharge, wholly or in part, of any debt or liability. No doubt, the accused shall be entitled to bring out the relevant materials in rebuttal of such presumption and with a view to show that preponderance of probabilities are in fact in favour of his defence. It also bears no emphasis that in case, while examining, if the accused has brought about a probable defence so as to rebut the presumption, the appellate court is certainly entitled to examine the evidence on record in order to find if preponderance indeed leans in favour of the accused.

The Delhi High Court in SP Dua (Supra) has noted in para 22 as under:

“22. In the present case as well, the respondent has sought to prove his case on preponderance of probabilities that the cheque in dispute was not issued in discharge on any legally enforceable debt. The defence case, in essence, is that the cheque in dispute was taken by the petitioner from the respondent's office in his absence. Furthermore, the respondent had not taken any loan from the petitioner. It was argued that the amount of Rs 4.25 lakhs was paid by the petitioner to the respondent as part of a settlement dated 21.08.2011 in respect of an earlier loan of Rs 5.95 lakhs that had been extended by the respondent to the petitioner. It was argued that the parties had agreed via the settlement that after the payment of the settlement amount of Rs 4.25 lakhs, the respondent would hand over the possession of the property rented by him from the petitioner. It was argued that as the remaining consideration amount of Rs 3.75 lakhs was paid on 23.08.2011, the property was also vacated by him on the said date”.

The accused shall be entitled to rebut the presumption u/s 138 of the Negotiable Instruments Act and may adduce direct evidence to that effect. The burden then again shall shift on the complainant. It is also true that even circumstantial evidence could be relied upon if it corroborates the version of a party. It is open for the complainant to also rely upon presumptions of fact, as contained in Section 118 and such other relevant sections of Indian Evidence Act. The presumptive clause in section 118 and Section 139 is the same, as the analogy can be extended and applied in the context of Section 149 as well.

The settled proposition in law is that a presumption can be controverted by the accused by raising a probable defence against the existence of a legally enforceable debt or liability. The accused is not expected to conclusively establish that there was no debt/liability, so long as plausible rebuttal is shown to have existed, thereby shifting the onus on the complainant. The Hon'ble Supreme Court has summarized the law in the case of  Rajesh Jain Vs Ajay Singh : 2023 INSC 888 as to how the accused can discharge the burden of the presumptions. The relevant portion of the judgment is reproduced hereunder:

"40. The standard of proof to discharge this evidential burden is not as heavy as that usually seen in situations where the prosecution is required to prove the guilt of an accused. The accused is not expected to prove the non-existence of the presumed fact beyond reasonable doubt. The accused must meet the standard of 'preponderance of probabilities', similar to a defendant in a civil proceeding. [Rangappa  Vs Mohan (AIR 2010 SC 1898)]”.

What may thus be concluded in good measure is that once the accused adduces evidence to the satisfaction of the Court that on a preponderance of probabilities there exists no debt/liability in the manner pleaded in the complaint or the demand notice or the affidavit-evidence, the burden shifts to the complainant and the presumption 'disappears' and does not haunt the accused any longer. The complainant is then obliged to prove the existence of a debt/liability as a matter of fact and in case a complainant fails to do so, the same may result in dismissal of his complaint case. The presumption under Section 139 of the Negotiable Instruments Act cannot aid the complainant towards finality, but initial presumption u/s 118 and 139 of the Negotiable Instruments Act, once rebutted, the onus shifts on the complainant for proving of his case and Section 139 shall therefore not again come to the complainant's rescue.

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                                  Anil K Khaware

Founder & Senior Associate

Societylawandjustice.com

 

LEAVE TO APPEAL – SECTION 378 (4) OF CRPC: 419 BNSS- MAINTAINABILITY

 

leave to appeal – Section 378 (4) of CrpC: 419 BNSS- MAINTAINABILITY

 

In criminal law as in civil cases there are tier available for appeals or revisions, depending on nature of disposal of case and whether the disposal relates to application or the case itself. Moreover, whether the disposal of the application ipso fact culminates the cause itself. However, presently, the issue being deliberated is leave to appeal in criminal cases. To put it in nutshell, leave to appeal is generally preferred, when the acquittal order is passed by the trial court or the first appellate court in criminal cases, as the case may be. The power to grant leave against the acquittal is available to the high court in terms of Section 378 (4) of Cr.P.C and the corresponding provisions is prescribed in section 419 (4) of Bharitiya Nagrik Suraksha Sanhita 2023 (BNSS). What is of pertinence in the context is that if the leave to appeal is sought without any tangible causes then such leave may not be granted.  As it is, dockets of the High Courts are filled with such leave to appeals and therefore, it is often felt that in a routine course the leave to appeal, if preferred should be discouraged and terms should be saddled for frivolous leave to appeals. That apart, the acquittal of an accused by court is not required to be set aside lightly and it is no res integra that if application for seeking leave to appeal does not prima facie establish that the order of acquittal is unreasonable or perverse, the leave , ought to be refused.

In the above backdrop, recently, the Delhi High Court has comprehensively dealt with the issues, in a matter captioned as State Vs MANPAL & ORS bearing no. CRL.L.P. 519/2019 (decided on 8^th October 2024).

It may be worthwhile to reiterate the provisions of Section 378(4) & (5) of Cr.PC as correspond to Section 419 (4) & (5) of BNSS 2023 as afore stated. The provisions are to as under for ready reference:

378(4):  If such an order of acquittal is passed in any case instituted upon complaint and the High Court, on an application made to it by the complainant in this behalf, grants special leave to appeal from the order of acquittal, the complainant may present such an appeal to the High Court;

378( 5): No application under sub section (4) for grant of special leave to appeal from an order of acquittal shall be entertained by the High Court after the expiry of six months, where the complainant is a public servant, and sixty days in every other case, computed from the date of the order of the acquittal.

It is not without reason, therefore that against the order of acquittal, the prosecution is required to obtain leave from the High Court for seeking permission to prefer appeal and as shall be delineated further, such leave shall be granted only when grounds of leave is available i.e the order of acquittal recorded by the trial court or the first appellate court as the case may be, is unreasonable to say the least.

Turning to State Vs MANPAL (supra) and Shorn of unnecessary details , in the above case, the FIR was lodged following information about a quarrel on Street and the victim/prosecutrix and her mother were taken to the police station where their respective statements were recorded. As a prelude to the quarrel as per above, the prosecutrix alleged attempt to rape by landlord’s Son and it was thus disclosed by her to sister and parents.

The charge was framed under Sections 341/323/354/376/511 of the IPC against Respondent No. 1 and separate charges under Sections 341/323/34 of the IPC were framed against Respondent Nos. 2 and 3, who are the mother and sister respectively, of Respondent No. 1.

The prosecution witnesses were examined before the Trial Court and the learned ASJ noted that the prosecutrix was examined-in-chief and cross-examined. In her examination-in-chief, she supported the case of the prosecution but in the cross-examination on the same day, she deposed that the dispute took place between her family and the family of the accused in regard to vacating the tenanted premises. On being asked by the learned Trial Court, she replied that false complaint was filed against the accused persons. It also transpired that the real dispute between the parties was with regard to the rent and the prosecutrix had stated that the accused/Respondent No.1 had not attempted to rape her.

The Mother of the prosecutrix had deposed that her daughter had told her on phone that the accused persons were beating her and had not allowed her to put the mattress on the roof to dry out in the sunlight. The Mother admitted that she had stated to the Police that her daughter had told her that while she was coming from the roof with mattress, the accused took her in a hut and tried to rape her. She volunteered that the said facts were told to the Police because the Police was not taking any action.

Significantly, the learned ASJ noted that the DD entry pursuant to a PCR call, only mentions that there was a quarrel and no allegation of attempt to rape was ever made.

 

As there existed material contradictions between the statements given to the Police at the initial stage and then subsequently to the Magistrate under Section 164 of the Code of Criminal Procedure, 1973 (CrPC), therefore, the learned ASJ took note of the affidavits filed by the prosecutrix and her Mother, wherein the deponents being the prosecutrix and her Mother had deposed that the dispute was in regard to the rent and a false complaint was filed. After perusal of evidence and considering that on the touchstone of law, the learned Trial Court was pleased to order acquittal of the respondents.

                                  LEAVE TO APPEAL

In the above factual matrix, the leave to appeal was filed.

It is also evident from record that the Additional Public Prosecutor for the State, in the proceedings before the District Court had initially opined that the case was not suitable for appeal to the High Court. It is also borne out from record that the Director of Prosecution also shared that view, however, it appears that the Department of Law & Legislative Affairs, later proposed filing an appeal. The High Court had thus expressed surprise on the reasoning behind the Department of Law & Legislative Affairs recommending an appeal in this case.

The Hon’ble Delhi High Court has held as under:

“12. It is trite law that this Court must exercise caution and should only interfere in an appeal against acquittal where there are substantial and compelling reasons to do so. At the stage of grant of leave to appeal, the High Court has to see whether a prima facie case is made out in favour of the appellant or if such arguable points have been raised which would merit interference. The Hon’ble Apex Court in the case of Maharashtra v. Sujay Mangesh Poyarekar: (2008) 9 SCC 475 held as under:

“19. Now, Section 378 of the Code provides for filing of appeal by the State in case of acquittal. Sub-section (3) declares that no appeal “shall be entertained except with the leave of the High Court”. It is, therefore, necessary for the State where it is aggrieved by an order of acquittal recorded by a Court of Session to file an application for leave to appeal as required by sub-section (3) of Section 378 of the Code. It is also true that an appeal can be registered and heard on merits by the High Court only after the High Court grants leave by allowing the application filed under subsection (3) of Section 378 of the Code.

 

20. In our opinion, however, in deciding the question whether requisite leave should or should not be granted, the High Court must apply its mind, consider whether a prima facie case has been made out or arguable points have been raised and not whether the order of acquittal would or would not be set aside.

 

21. It cannot be laid down as an abstract proposition of law of universal application that each and every petition seeking leave to prefer an appeal against an order of acquittal recorded by a trial court must be allowed by the appellate court and every appeal must be admitted and decided on merits. But it also cannot be overlooked that at that stage, the court would not enter into minute details of the prosecution evidence and refuse leave observing that the judgment of acquittal recorded by the trial court could not be said to be “perverse” and, hence, no leave should be granted.”

 

The Delhi High Court has thus held that in the present case prosecutrix evidence is not proved or corroborated by any independent witnesses.

The Delhi High Court has thus further held as under:

17. It is trite law that the accused can be convicted solely on the basis of evidence of the complainant / victim as long as same inspires confidence and corroboration is not necessary for the same. The law on this aspect was discussed in detail by the Hon’ble Apex Court by Nirmal Premkumar v. State, 2024 SCC OnLine SC 260. The relevant portion of the same is produced hereunder:

 

“11. Law is well settled that generally speaking, oral testimony may be classified into three categories, viz.: (i) wholly reliable; (ii) wholly unreliable; (iii) neither wholly reliable nor wholly unreliable. The first two category of cases may not pose serious difficulty for the Court in arriving at its conclusion(s). However, in the third category of cases, the Court has to be circumspect and look for corroboration of any material particulars by reliable testimony, direct or circumstantial, as a requirement of the rule of prudence.

 

It is significant to point out that recording order of conviction for commission of an offence of rape, even on the solitary evidence of the prosecutrix is permissible, if that inspires confidence and appears to be absolutely trustworthy and unblemished.  However, in case of conspicuous lacunae, such evidence cannot be relied upon. If there are several and significant variations in material facts in the statements made u/s 161 and u/s 164, in F.I.R and in deposition before court, such a material contradictions cannot be overlooked.

 

The Delhi High Court in State Vs MANPAL & ORS (Supra) has therefore succinctly concluded as under:

“19. The filing of frivolous cases has a spiral effect on other litigations which are waiting for their turn to be heard before the Courts.

 

20. Although the present case clearly qualifies as one where costs should be imposed on the prosecution for filing a frivolous appeal, this Court has chosen to refrain from passing such an order with a direction to the Department of Law & Legislative Affairs to exercise greater vigilance and sensitivity in deciding which cases to prosecute. The misuse of the legal process through frivolous litigation wastes judicial time and resources, and the Department must ensure that only meritorious cases are brought before the Court, avoiding unnecessary burden on the judicial system.

 

21. The filing of frivolous cases has a far-reaching, detrimental impact on the legal system. It not only clogs the Courts with unnecessary litigation but also delays the hearing of genuine cases that are patiently awaiting their turn to be addressed. Such delays undermine the efficiency of the judiciary, causing distress to litigants. Therefore, it is imperative that the prosecution and legal departments exercise due diligence before initiating cases, in order to preserve the integrity of the judicial process and ensure timely justice for those with legitimate grievances.”

 

From the above standpoint as deliberated in this context extensively what may be culled out is that the provision for a leave to appeal is provided for in the statute book only with a view to enable the prosecution to bring out the tangible flaws in the order recording acquittal and therefore it cannot be contemplated that in a routine matter the leave should be granted against the order of acquittal. Once, order of acquittal is recorded after appreciation of evidence, the liberty of individual cannot be dealt with if appeal is filed in a mechanical manner without exploring and ascertaining the flaws in the order of acquittal. The provisions for leave to appeal is meant to enable prosecution to seek substantive justice, in case glaring lapses are evident in the order of acquittal, else, filling the dockets of courts in a mechanical manner needed deprecation and the Delhi High Court has done just that in the present case.

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    Anil K Khaware

    Founder & Senior Associate

    Societylawandjustice.com