Whether small cause court can reject plaint considering defence plea?

That said, as rightly contended by the respondents’ counsel, the

maintainability of any suit depends on the suit pleadings, not on the rival

party’s defence. If we strictly go by the plaint averments, we gather that the

dispute concerns tenancy and that the Plaintiff avers about the landlordtenant

relationship, too. Given the convoluted assignment and the apparent

lack of privity of contract between the parties, as pleaded by the defendants,

are matters of merit and are based on the evidence to be led. We cannot

prejudge them. Nor can we non-suit a plaintiff on the premise he has a very

weak case, or the case he has set up is unconvincing or uninspiring.

22. Even on the Court Fee, too, the Trial Court has given reasons why

it was not inclined to throw out the case at the threshold.

23. Therefore, under these circumstances, I see no reason how I can

interfere with the Trial Court finding by exercising powers under Section

115 of C.P.C., essentially, a power of revision that concerns jurisdictional

errors rather than the correctness of adjudication.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

CIVIL REVISION APPLICATION NO.38 OF 2016

IN

CIVIL SUIT NO.354 OF 2014

Shri Shamrao Moreshwar Kulkarni  Vs  Shri. Vijay Jasraj Rahatekar

CORAM : DAMA SESHADRI NAIDU, J.

Dated : 18th DECEMBR, 2019

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Whether plaint can be rejected considering defence plea that suit is barred by limitation?

 What is relevant for answering the matter in issue in the context of the application Under Order VII Rule 11(d), is to examine the averments in the plaint. The plaint is required to be read as a whole. The defence available to the Defendants or the plea taken by them in the written statement or any application filed by them, cannot be the basis to decide the application Under Order VII Rule 11(d). Only the averments in the plaint are germane. The limitation to challenge the registered sale deed ordinarily would start running from the date on which the sale deed was registered. However, the specific case of the Appellants (Plaintiffs) is that until 2013 they had no knowledge whatsoever regarding execution of such sale deed by their brothers-original Defendant Nos. 1 & 2, in favour of Jaikrishnabhai Prabhudas Thakkar or Defendant Nos. 3 to 6. They acquired that knowledge on 26.12.2012 and immediately took steps to obtain a certified copy of the registered sale deed and on receipt thereof they realised the fraud played on them by their brothers concerning the ancestral property and two days prior to the filing of the suit, had approached their brothers (original Defendant Nos. 1 & 2) calling upon them to stop interfering with their possession and to partition the property and provide exclusive possession of half (1/2) portion of the land so designated towards their share. However, when they realized that the original Defendant Nos. 1 & 2 would not pay any heed to their request, they had no other option but to approach the court of law and filed the subject suit within two days therefrom. According to the Appellants, the suit has been filed within time after acquiring the knowledge about the execution of the registered sale deed. In this context, the Trial Court opined that it was a triable issue and declined to accept the application filed by Respondent No. 1 (Defendant No. 5) for rejection of the plaint Under Order VII Rule 11(d). That view commends to us.
 In the present case, we find that the Appellants (Plaintiffs) have asserted that the suit was filed immediately after getting knowledge about the fraudulent sale deed executed by original Defendant Nos. 1 & 2 by keeping them in the dark about such execution and within two days from the refusal by the original Defendant Nos. 1 & 2 to refrain from obstructing the peaceful enjoyment of use and possession of the ancestral property of the Appellants. We affirm the view taken by the Trial Court that the issue regarding the suit being barred by limitation in the facts of the present case, is a triable issue and for which reason the plaint cannot be rejected at the threshold in exercise of the power Under Order VII Rule 11(d).

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 3500 of 2018 (Arising out of SLP (Civil) No. 26401 of 2017)

Decided On: 10.04.2018

 Chhotanben  Vs.  Kiritbhai Jalkrushnabhai Thakkar and Ors.

Hon'ble Judges/Coram:

Dipak Misra, C.J.I., A.M. Khanwilkar and Dr. D.Y. Chandrachud, JJ.

Citation: 2019(2) MHLJ 17

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When defence of unsoundness of mind of accused is not tenable?

On the other hand, learned Counsel appearing on behalf of the Respondent-State of Maharashtra sought to justify the correctness of the findings of the Division Bench of the High Court and submits that the first appellate court in its domain has exercised its appellate power and re-appreciated the evidence and eventually arrived at the conclusion on the basis of the material evidence placed on record, including the defence witness, as also taking into consideration the subsequent conduct of the accused at the time of producing him, after the arrest, before the learned Magistrate, which was the first opportunity for him to state that he has been suffering from schizophrenia, and at the time of hearing of the appeal, he has been sent to the Civil Surgeon. After considering the opinion of the Civil Surgeon and the evidence placed on record, the appellate court has recorded a finding that it is evident, that it was realised on 20.08.2004 that the accused/Appellant herein was talking irrelevantly that was followed by an order of reference of the Appellant to the Civil Surgeon. Whereafter, the accused was certified to be fit to face the trial in March, 2005. Thus, relapse to schizophrenic attack was in August, 2004, which is one year after the incident on 30.07.2003 and, thereafter, at the time of arrest, he has not complained before the learned Magistrate, therefore, the Division Bench of the High Court presumed that there were no signs of unsoundness of mind of the accused/Appellant, otherwise there could have been a reference of the accused/Appellant by the learned Magistrate to the Competent Medical expert Doctor at the relevant time. Further, adverting to the relevant fact, namely, on 31.07.2003 at 3.00 p.m., when he was produced before the learned Judicial Magistrate, First Class, Srirampur, the learned Magistrate recorded that the accused/Appellant has no complaint of ill-treatment at the hands of Police. On the day next, after the incident, there were no signs of unsoundness of mind and with reference to the remand report, because it is not exhibited document, presumption, as to the action as recorded in the remand report referred to by the learned Magistrate, will have to be drawn because the learned Magistrate being an official, he has been presumed to have done official act properly while remanding to the judicial custody at the time when the Appellant was produced before him. Therefore, the Division Bench of the High Court has arrived at the right conclusion that there is no evidence adduced by the accused/Appellant on record to show that he was suffering from mental illness on the date of the occurrence to extend the benefit of Section 84 of the Indian Penal Code.

7. The Division Bench of the High Court with reference to the conduct of the accused seen before the incident, has arrived at the conclusion that he was working to a plan on the day he was produced before the learned Magistrate on 31.07.2003, there were no signs of unsoundness of mind. The defence has not been successful in proving that "at the crucial point of time" or "at the time of doing the act" by unsoundness of mind, the accused/Appellant was incapable of knowing the nature of his act. Regarding evidence of unsoundness of mind brought on record is not regarding unsoundness of mind soon before or after the incident. On the contrary, soon before the incident, the accused/Appellant appears to have conscientiously acted upon the plan and, therefore, the Division Bench of the High Court was rightly not agreed with the finding of fact recorded by the trial court on the charge holding him not guilty. It has rightly set aside the finding of the trial court holding that the case of the accused does not fall within the purview of general exceptions available Under Section 84 of the Indian Penal Code. Further, we have carefully examined the reasons recorded by the trial court Judge that immediately after the incident the Appellant has performed Pooja and also prepared tea that would factor in to hold that the conclusion arrived at by the Division Bench of the High Court is based on proper appreciation of the evidence placed on record. More so, in absence of defence for unsoundness of mind the accused/Appellant on the date of the incident, in our considered opinion, the Division Bench of the High Court did not err in setting aside the acquittal judgment passed by the trial court.

IN THE SUPREME COURT OF INDIA

Crl. A. No. 2143 of 2009

Decided On: 13.01.2016

 Uttam Nandram Somwanshi

Vs.

 State of Maharashtra

Hon'ble Judges/Coram:

V. Gopala Gowda and R.K. Agrawal, JJ.

Citation:(2016) 13 SCC205

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How to appreciate defence of accused in case of criminal misappropriation of property?

There is no dispute that approximately 1,30,000 yards out of the cloth -entrusted to the company by the Textile Commissioner for dyeing has not been returned. By its letter dated December 4, 1950, the company admitted liability to deliver 1,29,748 yards of cloth, but this cloth has not been returned to the Textile Commissioner in spite of repeated demands. That the appellants, as directors of the company had dominion over that cloth was not questioned in, the trial court. The plea that there were other Directors of the company besides the appellants who had dominion over the cloth has been negatived by the High Court and in our judgment rightly. Direct evidence to establish misappropriation of the cloth over which the appellants had dominion is undoubtedly lacking, but to establish a charge of criminal breach of trust, the prosecution is not obliged to prove the precise mode of conversion, misappropriation or misapplication by the accused of the property entrusted to him or over which he has dominion. The principal ingredient of the offence being dishonest misappropriation or conversion which may not ordinarily be a matter of direct proof, entrustment of property and failure in breach of an obligation to account for the property entrusted, if proved, may in the light of other circumstances, justifiably lead to

-an inference of dishonest misappropriation or conversion. Conviction of a person for the offence of criminal breach of trust may not, in all cases, be founded merely on his failure to account for the property entrusted to him, or over which he has dominion, even when a duty to account is imposed upon him, but where he is unable to account or renders an explanation for his failure to account which is untrue, an inference of misappropriation with dishonest intent may readily be made.

In this case, on a search of the factory on December 29, 1952, the cloth remaining to be delivered by the company was not found. At the trial, the appellants sought to explain the disappearance of the cloth from the factory premises where it was stored, on the plea that it was old and was eaten up by white-ants and moths, and had been thrown away as rubbish. This plea of the appellants was not accepted by the High Court and we think rightly. No information was given at any time to the Textile Commissioner after December 4, 1950, that the cloth had been eaten up by white-ants and moths, and was therefore thrown away or otherwise destroyed. Nor was any evidence led in support of the plea by the appellants.

In this court, counsel for the first appellant contended that failure to return the cloth may give rise to a civil liability to make good the loss occasioned thereby, but in the circumstances of the case, the first appellant cannot be found guilty of the offence of criminal breach of trust. Counsel submitted that the first appellant had left Bombay in 1950 and had settled down in Ahmedabad and was attending to a factory in that town, that thereafter the first appellant was involved in insolvency proceedings and was unable to attend to the affairs of the company in Bombay, and if, on account of the pre-occupation of the first appellant at Ahmedabad, he was unable to visit Bombay and the goods were lost, no criminal misappropriation can be attributed to him. But the case pleaded by the appellant negatives this submission. The first appellant in his statement before the trial court admitted that he often went to Bombay even after he had migrated to Ahmedabad and-that he visited the mill premises and got the same opened by the Gurkha watchman and he found that the heap of cloth lying in the mill was getting smaller every time he visited the mill and on inquiry, he was told by the watchman that every day one basketful of sweepings was thrown away. He also stated that he was shown several places in the compound of the factory where pits had been filled up with these sweepings, and that he found a small heap lying by the side of the " Tulsipipe gutter" and also in the warehouses in the mill premises. It is clear from this statement and other evidence on the record that even after he migrated to Ahmedabad, the first appellant was frequently visiting the factory at Bombay. The evidence also discloses that meetings of Directors were held from time to time, but the minutes of the Directors' meetings have not been produced. The books of account-of the company evidencing disbursements to the Directors of remuneration for attending the meetings and the expenses for the alleged collection and throwing away of the sweepings have not been produced. It is admitted by the first appellant that the letter dated November 27, 1952, was written by the second appellant under his instructions. In his statement at the trial, the first appellant stated that he was informed of the letter dated November 26, 1952, from the Textile Commissioner and that hecould not attend the office of that officer because he was busy attending to the insolvency proceedings and that he deputed the second appellant to attend the office and to explain and discuss the position. Be then stated, "We had informed the Commissioner that the company was prepared to pay for the cloth remaining after deducting the amount claimed as damages". The letter dated November 27, 1952, was evidently written under the direction of the first appellant and by that letter, liability to pay for the cloth after certain adjustments for losses alleged to be suffered by the company in carrying out the contract was admitted. By the letter dated December 4, 1950, liability to deliver the cloth was admitted and by the letter dated November 27, 1952, liability to pay compensation for the loss occasioned to the Government was affirmed. The appellants who were liable to account for the cloth over which they had dominion have failed to do so, and they have rendered a false explanation for their failure to account. The High Court was of the opinion that this false defence viewed in the light of failure to produce the books of account, the stock register and the complete absence of reference in the correspondence with the Textile Commissioner about the cause of disappearance established misappropriation with criminal intent.

Supreme Court of India

Jaikrishnadas Manohardasdesai ... vs The State Of Bombay on 16 March, 1960

Equivalent citations: 1960 AIR 833, 1960 SCR (3) 329,1960 CRLJ 1250

Bench: Gajendragadkar, P.B.

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Whether accused can take defence of market practice in case of prevention of corruption Act?

The accused persons have tried to take shelter behind what they have described as "market practices". Such practices even if existing, cannot take the place of statutory and regulatory functions. There is no public interest involved in such practices and they cannot be a substitute for compliance with the regulatory or statutory prescriptions. An attempt was made to show that there was subsequent disapproval of the market practices; at the point of time when the transactions took place there was no embargo. It is their stand that the practices were a part of accepted norms. We do not find anything plausible in these explanations. A practice even if was prevailing, if wrong, is not to be approved. The subsequent clarifications do not in any way put seal of approval on the practices adopted in the past, on the other hand it condemns it.
SUPREME COURT OF INDIA

Vinayak Narayan Deosthali Vs. Central Bureau of Investigation

[Criminal Appeal No.346 of 2004]

ADARSH KUMAR GOEL, J.
Dated;DECEMBER 2, 2014
Citation;2015 ALLMR(CRI)1277 SC

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Whether Magistrate can take into consideration defence version at the time of taking cognizance?

Considering the stage at which the criminal complaint is pending and the nature of proposed order, this Court would not like to express any definite opinion on the merits of the allegations made in the complaint petition or upon the defence taken by the accused persons before the courts below or in this Court lest it prejudices one or the other party in future. Having considered the details of allegations made in the complaint petition, the statement of the complainant on solemn affirmation as well as materials on which the appellant placed reliance which were called for by the learned Magistrate, the learned Magistrate, in our considered opinion, committed no error in summoning the accused persons. At the stage of cognizance and summoning the Magistrate is required to apply his judicial mind only with a view to take cognizance of the offence, or, in other words, to find out whether prima facie case has been made out for summoning the accused persons. At this stage, the learned Magistrate is not required to consider the defence version or materials or arguments nor he is required to evaluate the merits of the materials or evidence of the complainant, because the Magistrate must not undertake the exercise to find out at this stage whether the materials will lead to conviction or not. It is also well settled that cognizance is taken of the offence and not the offender. Hence at the stage of framing of charge an individual accused may seek discharge if he or she can show that the materials are absolutely insufficient for framing of charge against that particular accused. But such exercise is required only at a later stage, as indicated above and not at the stage of taking cognizance and summoning the accused on the basis of prima facie case. Even at the stage of framing of charge, the sufficiency of materials for the purpose of conviction is not the requirement and a prayer for discharge can be allowed only if the court finds that the materials are wholly insufficient for the purpose of trial. It is also a settled proposition of law that even when there are materials raising strong suspicion against an accused, the court will be justified in rejecting a prayer for discharge and in granting an opportunity to the prosecution to bring on record the entire evidence in accordance with law so that case of both the sides may be considered appropriately on conclusion of trial.

Supreme Court of India

Sonu Gupta vs Deepak Gupta & Ors on 11 February, 2015

Author: S K Singh

Bench: Anil R. Dave, Kurian Joseph, Shiva Kirti Singh

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Whether court can frame issue on the point when deft has not pressed said defence plea?

 At the outset before raising points for determination, we may mention that several contentions were urged on behalf of defendants 3 to 6 that the property was not the absolute property of defendant No. 1 and that it was the ancestral property and as such, it was the joint family property of defendants 1 to 6; that the several debts incurred by defendant No. 1 were not for legal necessity, but, at the end of the arguments defendants 3 to 6 filed a Memo dated 1.4.1992 reads thus:

" MEMO Defendants/Respondents 3 to 6 do not press the plea taken in the written statement recording legal necessity of the transactions done by the 1st defendant and also do not press the defence as to whether the suit schedule property is the joint family property or not."

I n view of this Memo, it becomes unnecessary for us to consider the question as to whether the suit schedule property was the joint family property and whether the several debts incurred by defendant No. 1 were for legal necessity. Accordingly, we do not raise any point having a bearing on the aforesaid pleas.

13. We may also point out that the learned Trial Judge without framing an issue as to whether defendants 3 to 6 prove that the suit schedule property was a joint family property, was not justified in raising an issue as to whether the plaintiff proves that loan was for legal necessity or for family benefit?'. This would have arisen it only the defendants had pleaded and proved that the suit schedule property was a joint family property. Now that question will not arise in the light of the Memo filed by defendants 1 to 6 withdrawing the defences, as to the schedule property being the joint family property and the debts incurred were not for legal necessity. 

Karnataka High Court

B.R. Mulani vs Dr. A.B. Aswathanarayana on 1 April, 1992

Equivalent citations: ILR 1992 KAR 2224,AIR1993 karnat257

Bench: K Swami, C Shivappa

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