Supreme Court: How to appreciate evidence of witnesses who depose that their statement U/S 164 of CRPC was obtained by investigating officer by threat?

The jurisprudence concerning a statement Under Section 164 Code of Criminal Procedure is fairly clear. Such a statement is not considered as a substantive piece of evidence, as substantive oral evidence is one which is deposed before the Court and is subjected to cross- examination. However, Section 157 of Indian Evidence Act, 18723 makes it clear that a statement Under Section 164 Code of Criminal Procedure could be used for both corroboration and contradiction. It could be used to corroborate the testimonies of other witnesses. In R. Shaji v. State of Kerala   MANU/SC/0087/2013 : 2013:INSC:72, this Court discussed the two-fold objective of a statement Under Section 164 Code of Criminal Procedure as:

15. So far as the statement of witnesses recorded Under Section 164 is concerned, the object is two fold; in the first place, to deter the witness from changing his stand by denying the contents of his previously recorded statement, and secondly, to tide over immunity from prosecution by the witness Under Section 164. A proposition to the effect that if a statement of a witness is recorded Under Section 164, his evidence in Court should be discarded, is not at all warranted...

The Court also recognized that the need for recording the statement of a witness Under Section 164 Code of Criminal Procedure arises when the witness appears to be connected to the Accused and is prone to changing his version at a later stage due to influence. The relevant para reads thus:

16.... During the investigation, the Police Officer may sometimes feel that it is expedient to record the statement of a witness Under Section 164 Code of Criminal Procedure. This usually happens when the witnesses to a crime are clearly connected to the Accused, or where the Accused is very influential, owing to which the witnesses may be influenced... {Para 27}

28. Considering the conceptual requirement of recording a statement before a Judicial Magistrate during the course of investigation and the utility thereof, as prescribed in Section 157 of Evidence Act, it could be observed that a statement Under Section 164, although not a substantive piece of evidence, not only meets the test of relevancy but could also be used for the purposes of contradiction and corroboration. A statement recorded Under Section 164 Code of Criminal Procedure serves a special purpose in a criminal investigation as a greater amount of credibility is attached to it for being recorded by a Judicial Magistrate and not by the Investigating Officer. A statement Under Section 164 Code of Criminal Procedure is not subjected to the constraints attached with a statement Under Section 161 Code of Criminal Procedure and the vigour of Section 162 Code of Criminal Procedure does not apply to a statement Under Section 164 Code of Criminal Procedure. Therefore, it must be considered on a better footing. However, relevancy, admissibility and reliability are distinct concepts in the realm of the law of evidence. Thus, the weight to be attached to such a statement (reliability thereof) is to be determined by the Court on a case-to-case basis and the same would depend to some extent upon whether the witness has remained true to the statement or has resiled from it, but it would not be a conclusive factor. For, even if a witness has retracted from a statement, such retraction could be a result of manipulation and the Court has to examine the circumstances in which the statement was recorded, the reasons stated by the witness for retracting from the statement etc. Ultimately, what counts is whether the Court believes a statement to be true, and the ultimate test of reliability happens during the trial upon a calculated balancing of conflicting versions in light of the other evidence on record.

29. In the present case, the statements of PW-3 and PW-4 were recorded by the Judicial Magistrate on 09.10.2003 i.e. almost 25 days after the incident. Thus, their statements were recorded after the passage of a considerable time and could not be termed as hasty statements as there was sufficient cooling period for the witnesses to think over and contemplate the consequences of their statements. During this entire period, both PW-3 and PW-4 remained with their family and it is not their case that they were kept under influence or were tutored during this period. Pertinently, PW-1 has also deposed that on certain occasions, PW-3 had accompanied the deceased Devaki to her maternal home, which indicates that PW-3 had a sense of attachment with the deceased and the same could have been the reason for giving a statement against her own brother and mother. In fact, the retraction of these statements by PW-3 and PW-4 before the Court appears to be a result of tutoring and manipulation as the said witnesses could have easily been won over by their family members during the intervening period. Furthermore, the witnesses have admitted that the statements were signed by them and there is no suggestion to the effect that the witnesses could not have understood the statements. The statements have been certified by the concerned Magistrate to the effect that they have been read by the witnesses and their consequences have been explained to the witnesses.

30. PW-3 and PW-4 have deposed that they were under threat from the concerned Investigating Officer who was present along with them before the Magistrate. The concerned Investigating Officer has been examined as PW-8 in the present case and during his examination, there is not even a suggestion from the Appellants to the effect that he was present along with PW-3 and PW-4 at the time of recording their statement Under Section 164 or to the effect that he had threatened them to give incriminating statements against the Appellants. Furthermore, the concerned Magistrate could have been examined as a witness in the present matter to clear the controversy on this aspect and for unexplained reasons, he was never called for examination especially when a completely hostile version was being provided by the witnesses qua the proceedings which were conducted before him. The Appellants failed to place any material on record to justify the allegation of threat and as discussed above, the statements of PW-3 and PW-4 recorded Under Section 164 Code of Criminal Procedure reflected the correct version of the events that transpired on the fateful day.

31. Having said so, we deem it fit to observe that a statement Under Section 164 Code of Criminal Procedure cannot be discarded at the drop of a hat and on a mere statement of the witness that it was not recorded correctly. For, a judicial satisfaction of the Magistrate, to the effect that the statement being recorded is the correct version of the facts stated by the witness, forms part of every such statement and a higher burden must be placed upon the witness to retract from the same. To permit retraction by a witness from a signed statement recorded before the Magistrate on flimsy grounds or on mere assertions would effectively negate the difference between a statement recorded by the police officer and that recorded by the Judicial Magistrate. In the present matter, there is no reasonable ground to reject the statements recorded Under Section 164 Code of Criminal Procedure and reliance has correctly been placed upon the said statements by the courts below.

  IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 122 of 2013

Decided On: 25.11.2024

Vijaya Singh and Ors. Vs. State of Uttarakhand

Hon'ble Judges/Coram:

Bela M. Trivedi and S.C. Sharma, JJ.

Author:  S.C. Sharma, J.

Citation:  MANU/SC/1259/2024.

Read full Judgment here: Click here.

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Whether Threats by journalists who are reporters to publish news defaming a person amount to extortion?

The definition of injury is given in Section 44 which reads as under:—

“44. “Injury”. - The word “injury” denotes any harm whatever illegally caused to any person, in body, mind, reputation or property.”

8. The definition clearly shows that the injury not only to body, but injury to mind, reputation also is an injury. Definition of extortion is given in Section 383 of the Indian Penal Code which reads as under:—

“383. Extortion. - Whoever intentionally puts any person in fear of any injury to that person, or to any other, and thereby dishonestly induces the person so put in fear to deliver to any person any property or valuable security, or anything signed or sealed which may be converted into a valuable security, commits “extortion”.

Illustration (a). A threatens to publish a defamatory libel concerning Z to give him money. A has committed extortion.

9. From the plain reading of Section 383 coupled with definition of “injury”, it is clear that there should not be any physical harm to body. Even harm to reputation and mind is an injury. Therefore, submission of learned Counsel for the accused that there was no injury to the complainant has no force.

11. In the present case, accused not only threatened the complainant to initiate action against the complainant by respective authority but compelled the complainant to pay Rs. 50,000/- to him. At the time of trap arranged by the police, the accused has accepted Rs. 10,000/- from the complainant. Complainant could not have given the amount on that day to the accused but because the accused threatened him saying that he is a journalist and by influencing Collector etc., the houses constructed on the plots would be demolished. 

14. The illustrations to Section 384 are very clear. All the illustrations show that even a threatening by journalists who are reporters to publish news in a newspaper to defame that person amounts to extortion. Illustration-A to Section 383 is very clear. It shows that “A” threatens to publish a defamatory libel concerning “Z” unless “Z” gives him money. He thus induces “Z” to give him money. “A” has committed extortion. In the present case, the accused being a journalist threatened the complainant that he would complain the authority to demolish the houses constructed on the plots. He would not do so unless the complainant pays Rs. 50,000/- to him. He induced the complainant to pay Rs. 50,000/-. Therefore, the “extortion” as defined under Section 383 of the Indian Penal Code is rightly proved in the present case against the accused.

In the High Court of Bombay

(Before M.G. Giratkar, J.)

Sharad Balkrushna Deotale v. State of Maharashtra

Criminal Revision Application (Revn) No. 180 of 2011

Decided on February 21, 2019

Citation: 2019 SCC OnLine Bom 305

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Whether drawer of cheque will be liable for dishonour of cheque when cheque was obtained under threat and force?

 It clearly shows under the guise of execution of any summons or warrant served on the accused in the crime registered by police, after referring the complaint to the police by the Court, P.Ws. 1 and 2 along with Sub Inspector and Head Constable, went to the house of the accused at Mumbai. There are no details what was the time taken for the said settlement and how the accused is responsible for the amount of Rs. 35,00,000/-, which was given to the father of the complainant and how the said amount of Rs. 35,00,000/- was arrived at Rs. 25,00,000/- in settlement, which are material facts but for mentioning as if a settlement already arrived and the five cheques were issued which include Ex. P.3. That also probablises the defence version apart from the complaint as well as evidence of P.Ws. 1 and 2 also silent regarding proof how the sum of Rs. 35,00,000/- was paid if at all to the accused when and by what source. The defence of the accused that his father was running that entity and after his death it became defunct and he was not even Director by then and not responsible for it and it is under the threat and force through police, P.Ws. 1 and 2 obtained the signatures on the blank cheques and on the so-called undertaking letter in the absence of showing the said amount due by the accused much less of Rs. 35,00,000/- and there from settlement of Rs. 25,00,000/- and how and why mere filing of a cheque is not sufficient despite the evidence of the accused and reply notice Ex. P.9, which is sometime prior to the presentation of the cheque and that too having filed the private complaint including this cheque and the allegations of cheating for non-payment, the survival of the cause of action for its dishonour also doubtful from the complainant version leave that as it is not a matter of dispute or controversy for any finding therein for purpose of the accused even taken it is after filing of the so-called cheating case and so-called Exs. P.2 and P.3 along with other cheques given, those show the complainant entity represented by P.Ws. 1 and 2 through police force went to the accused under the guise of securing his presence before the court in Cr. No. 29 of 2004 pending under the police investigation under threat and force, obtained signatures and misused the same and there is no legally enforceable debt. There is nothing to rebut the same even from cross-examination of D.W. 1 in this regard by producing any material regarding giving of Rs. 35,00,000/- much less to the accused and otherwise liability for the same by the accused and what the law laid down by the Apex Court in Narayan Menon (supra) in discharge of burden on the part of the accused in rebutting the presumptions if at all available against the accused under Section 118 and 139 N.I. Act is need not by coming to the witness box suffice even from showing preponderance of the probabilities of the version by putting to the fact the complainant and witnesses and by confronting with the documents and the accused need not disprove the case of the complainant, he can discharge even by direct or circumstantial evidence is said probable evidence to rebut the defence. In this case not only the suggestions to P.Ws. 1 and 2, but also admissions from the evidence of P.Ws. 1 and 2 in the cross-examination co-relating to Ex. P.2 date and contents therefrom substantiating the defence version that Ex. P.3 cheque and other cheques were obtained under threat and force by the complainant entity officials including P.Ws. 1 and 2 through Police force and thereafter proved that he is not liable for the amount and there is no legally enforceable debt or other liability as rightly concluded by the trial Court's with that finding supported by reasons from the factual matrix with reference to the law settled supra. Hence for this Court while sitting in appeal, there is nothing to interfere. Accordingly, point No. 1 is answered.

Equivalent Citation: 2015 (2) ALT (Crl.) 280 (A.P.),2015CRLJ(NOC)392 (HYD)

IN THE HIGH COURT OF JUDICATURE AT HYDERABAD FOR THE STATE OF TELANGANA AND THE STATE OF ANDHRA PRADESH

Criminal Appeal No. 1512 of 2007

Decided On: 04.06.2014

 Inden Power International Ltd.
Vs.
Chandan Pandya

Hon'ble Judges/Coram:Dr. B. Siva Sankara Rao, J.

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How to appreciate evidence in cheque dishonour case?

True that during the examination under Section 313,

Cr.P.C. the revision petitioner filed a statement to the effect that Ext.P1

cheque was issued due to the threat exerted by the Police personnel. It

is also evident that the revision petitioner has not adduced any evidence

at all either oral or documentary, to substantiate the said contention.

The appellate court found that the evidence tendered by PW1 was that

on the day the revision petitioner was summoned to the police station no

cheque was executed and it was after two days therefrom that the

revision petitioner executed and delivered Ext.P1 cheque. Even after the

receipt of the statutory notice the revision petitioner had not lodged any

complaint either against the Police officials or against the first

respondent. So also, it was not noticed that he had raised any grievance

against any police officer before the higher authorities. Ext.P1 cheque is

dated 20.11.2004 and when the said cheque was presented for

encashment it was dishonoured on the ground of insufficiency of fund in

the account maintained by the revision petitioner.        The said fact is

evident from Ext.P2 memo dated 16.3.2005 The said fact was intimated

as per Ext.P3. Ext.P6 would reveal that the lawyer notice was served on

the petitioner in 2005 itself. Even after receiving the lawyer notice the

revision petitioner did not initiate any legal action either against the



Police officials or against the first respondent. It is to be noted that

during the trial the revision petitioner would admit the delivery of Ext.P1

cheque and the signature and writing thereon.         In other words, the

revision petitioner had not disputed the execution of Ext.P1 cheque

before the trial court. In such circumstances, the oral testimony of PW1

was taken as sufficient by the courts below to prove the factum of

execution. The evidence of PW1 with Exts.P2 to P6, as discussed by the

courts below, would reveal that pursuant to the presentation of the

cheque in question for encashment it was dishonoured on the ground of

insufficiency of fund in the account maintained by the revision petitioner

and thereafter, the procedures mandatorily to be followed in view of with

the provisions under the Negotiable Instruments Act, were scrupulously

followed by the first respondent prior to the filing of the complaint. It is

taking into account all such aspects that the courts below arrived at the

finding that the first respondent succeeded in establishing that the

revision petitioner has committed the offence under Section 138 of N.I.

Act. 
IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                        PRESENT:

                MR.JUSTICE C.T.RAVIKUMAR

       TUESDAY, THE 24TH DAY OF FEBRUARY 2015

                            Crl.Rev.Pet.No. 232 of 2015 
                         

         ARUNKUMAR,  Vs  SATHYAKUMAR
       

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Whether case can be transferred on ground that complainant has threat perception from accused?

After hearing the learned counsel for the petitioner, it is clear
that the petitioner is seeking transfer of Sessions Case No.39/10 from one
court to another court on the apprehension that there is threat to her and her
husband. Thus, the foundation for moving application under Section 408 of
the Code of Criminal Procedure is threat perception. Mere perception is not

adequate or it cannot be a reason for transferring particular criminal case
from one court to the another court. The foundation must have some basis.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY.
BENCH AT AURANGABAD.
CRIMINAL APPELLATE JURISDICTION.

Dhammadina w/o Pankaj Shivbhagat

Vs
The State of Maharashtra.

19th December, 2014.
CORAM : V.M. DESHPANDE, J.
DATE : 14th JANUARY, 2015.
Citation;2015 ALLMR(cri)1054

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