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1st WORK-SHOP OF JUDICIAL OFFICERIN PARBHANI DISTRICT
2015-2016
SUMMARY/GIST OF PAPERS OF THIRD WORKSHOPHELD ON 11th OCTOBER, 2015
Under the guidance of the Hon'ble JusticeShri Tanaji Vishwasrao Nalawade, Judge Bombay HighCourt and Guardian Judge of Parbhani Judicial District.
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The Premises Of Additional District And Sessions CourtGangakhed Hon'ble Smt. M.S. Jawalkar, The Principal The DistrictJudge and Sessions Judge,Parbhani Dist.Parbhani and Judicial
Officers In Parbhani Judiciad District,
LIST OF JUDICIAL OFFICERS IN PARBHANI JUDICIAL DISTRICT
Sr. No. Name of Judicial Officer Designation
1. Hon'ble Smt. M.S.Jawalkar The Principal District &Sessions Judge,Parbhani.
2. Dr. Y.G.Chaware District Judge-1&Addl.Sessions Judge,
Parbhani.
3. Shri. C.W. Saindani District Judge-1&Addl.Sessions Judge,
Hingoli.
4. Shri. D.N. Argade District Judge-1&Addl.Sessions Judge,
Vasmat.
5. Shri.A.A. Sayeed District Judge-1&Addl.Sessions Judge,
Gangakhed.
6. Shri.M.P.Divate District JudgeAddl.SessionsJudge,Hingoli.
3
7. Shri.R.M.Sadrani District Judge-2&Addl.Sessions Judge,
Parbhani
8. Shri.P.S.Ghate Ad-hoc District Judge1-,Parbhani
9. Shri.S.G.Thube Ad-hoc District Judge2-,Parbhani
10. Shri.S.N.Sonwane Civil Judge Senior Division,Parbhani
11. Shri.R.D.Bodhane Chief Judicial Magistrate,Parbhani
12. Shri.S.K.Tikile Civil Judge Senior Division,Hingoli
13. Shri.P.S.Vithalni Civil Judge Senior Division,Vasmat
14. Shri.A.S.Ghaniwale Jt. Civil Judge SeniorDivision, Parbhani
15. Shri.S.B.Dige Civil Judge Senior Division,Gangakhed
16. Shri.A.S.Lanjewar Jt. Civil Judge Jr.Div.&JMFC., Parbhani
17. Shri.Satish B.Hiwale 2nd Jt. Civil Judge Jr.Div.&JMFC., Parbhani
18. Shri.V.G.Choukhande 3rd Jt. Civil Judge Jr.Div.&JMFC., Parbhani
19. Sow.T.M.Deshmukh-Naik 4th Jt. Civil Judge Jr.Div.&JMFC., Parbhani
20. Sow.B.S.Pal 5th Jt. Civil Judge Jr.Div.&JMFC., Parbhani
21. Shri.M.E.Pawar 6th Jt. Civil Judge Jr.Div.&JMFC., Parbhani
22. Shri.S.S.Kadam Jt. Civil Judge Jr.Div.&JMFC., Gangakhed
23. Shri.A.S.Alewar 2nd Jt. Civil Judge Jr.Div.&JMFC., Gangakhed
24. Shri.A.M.Joshi Jt. Civil Judge Jr.Div.&JMFC., Vasmat
25. Shri.K.U.Telgaonkar 2nd Jt. Civil Judge Jr.Div.&JMFC., Vasmat
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26. Shri.P.P.Deshmane 3rd Jt. Civil Judge Jr.Div.&JMFC., Vasmat
27. Shri.P.R.Shinde Jt. Civil Judge Jr.Div.&JMFC., Hingoli
28. Shri.G.B.Deshmkh 2nd Jt. Civil Judge Jr.Div.&JMFC., Hingoli
29. Shri.S.S.Gaikwad 3rd Jt. Civil Judge Jr.Div.&JMFC., Hingoli
30. Shri.A.B.Shendge Civil Judge Jr.Div.& JMFC.,Aundha
31. Shri.P.P.Modi Civil Judge Jr.Div.& JMFC.,Kalamnuri
32. Shri.M.Z.A.A.Q.Qurashi Civil Judge Jr.Div.& JMFC.,Sengaon
33. Shri.S.Y.Kadam Civil Judge Jr.Div.& JMFC.,Sonpeth
34. Shri.V.N.Girwalkar Civil Judge Jr.Div.& JMFC.,Palam
35. Shri.R.U.Nagargoje Civil Judge Jr.Div.& JMFC.,Jintur
36. Shri.D.M.Mata Civil Judge Jr.Div.& JMFC.,Selu
37. Shri.S.M.Patil Civil Judge Jr.Div.& JMFC.,Manwat
38. Shri.T.N.Quadri Civil Judge Jr.Div.& JMFC.,Pathri
TOPICS OF WORKSHOP :
CIVIL: 1. Law of Precedent-Ratio Decidendi,Obeiter Dictta, Sub-Silentio and per-incurim.
CRIMINAL: 2. Negotiable Instruments Act Section 138to 142 Jurisdiction with recentamendments.
-: S U B J E C T - I N D E X :-
Sr. No. Contents PageNo.
1 Law of Precedent-Ratio Decidendi, Obeiter Dictta, Sub-Silentio and per-incurim.
Members of Core-Groups: 1. Smt. M.S. Jawalkar The Principal District & Sessions Judge,Parbhani, 2. Shri. D.N. Argade, District Judge-1& Addl.Session Judge, Vasmat.3. Shri. C.W. Saindani, District Judge-1& Addl.Session Judge, Hingoli.4. Shri.A.A. Sayeed, District Judge-1& Addl.Session Judge, Gangakhed.5. Shri.R.M. Sadrani, District Judge-2 & Addl.Session Judge, Parbhani.6. Shri.S.N. Sonwane, Civil Judge Senior Division, Parbhani
11 to 26
2 NegotiableInstruments ActSection 138 to 142Jurisdiction withrecent amendments.
Members of Core-Grops: 1. Dr. Y.G. Chaware, District Judge-1 & Addl. Session Judge,Parbhani, 2. Shri. M.P. Diwate, District Judge-2 & Addl.Session Judge, Hingoli.3. Shri. P.S. Ghate, Adhoc District Judge-1, Parbhani.4. Shri. S.G. Thube, Adhoc District Judge-2, Parbhani.5. Shri. R.D. Bodhane,
27 to 49
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Chief Judicial Magistrate Parbhani.
3 Discussion on Legal Questions inOpen House
By all participants50 to 64
I N D E X
Civil Group
Sr.No. Subject Page No.
From To
Sr.No. Synopsis -- --
1 Law ofPrecedent-Ratiodecidendi,Obiterdicta,Sub-silentioand per-incuriam
A) Precedent 11 14
Advantages of Precedent 14 14
B) Precedent and RatioDecidendi
14 17
C) Doctrine of Stare Decisis 17 19
Judgement of High Courtsas Precedents
19 22
D) Obiter Dicta 22 22
E) Sub-Silentio 22 23
F) Per-incuriam 23 26
7
I N D E X
Criminal Group
Sr.No. Subjects Page No.
From To
Sr.No. Synopsis -- --
1 NegotiableInstruments ActSection 138 To142 Juridiction
with RecentAmendment
* Introduction 27 28
* Directions 28 29
* Section 138 of theNegotiable Instruments
Act,188129 30
* Section 138 Reads asUnder
30 33
* Allied Provisions(i) Mode of Trial: Summary
Procedure33 34
* "Mens Rea" is not essential 34 34
* Presumtions 34 39
* Who may file complaint 40 40
* Complaint by a Company 40 40
* Complaint by Power ofattorney
40 43
* Jurisdiction 43 47
* Current Position 47 49
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DISCUSSION OF LEGAL QUESTIONS :
QUE.NO. LEGAL QUESTIONS
PAGE NO
FROM TO
Que. 1 When the numbers of case laws are cited beforethe Court at the time how to deal with them?
50 51
Que. 2 Whether obiter dicta of Hon'ble Supreme Courtare binding as precedents?
52 53
Que. 3 What is the legal position of the said SupremeCourt on the right to strike with reference to theconcept of Ratio Decidendi?
53 53
Que. 4 What is the legal position of the Hon'bleSupreme Court ruling on the right to strike, withreference to the doctrine of Stare Decisis?
53 54
Que. 5 What is the concept of the expression"Judgement Per Incuriam" ?
54 54
Que. 6 Conflicting decision of the Hon'ble SupremeCourt or the Hon'ble High Court—which one is abinding precedent?
55 56
Que. 7 Que. 8 : What is the effect of subsequentlegislative amendment on an earlier precedent? 56 57
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Que. 8 When the question arises in conflictingJudgments of the same court and whether latterjudgment or earlier judgment becomes a bindingprecedent?
57 57
Que. 9 Controversy had arisen with regard to dismissalof Special Leave Petition by the Hon'bleSupreme Court and whether it becomes thedecision of the Hon'ble Supreme Courtconfirming the decision of the High Court?
57 59
Que. 10 Whether sub-section (2) of section 145 of theNegotiable Instruments Act, 1881, confers anunfettered right on the accused to give oralexamination-in-chief of a person giving evidenceon affidavit, even in respect of the facts statedtherein and that if such a right is exercised,whether the court is obliged to examine such aperson in spite of the mandate of section 145(1)of the Act?
59 60
Que. 11 How to prove the documents referred in affidavitof examination-in-chief filed by the witness inthe cases filed under section 138 N I Act?
60 62
Que. 12 Whether the Magistrate after having foundsufficient ground for proceeding in case andissued summons under Section 204 Cr.P.C. hasthe jurisdiction to recall or review the order byexercising its power under Section 201 Cr.P.C.?
62 62
Que. 13 Where the offence consists of several acts donein different local areas, it may be inquired into ortried by a Court having jurisdiction over any ofsuch local areas?
62 63
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Que. 14 Whether pending cases under section 138 ofNegotiable Instruments Act can be transferredas per Ordinance?
63 63
Que. 15 Whether Sub-section (2) of Section 145conferred an unfettered right on the complainantand the accused to apply to the court seekingdirection to give oral examination-in-chief of aperson giving evidence on affidavit?
64 64
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LAW OF PRECEDENT-RATIO DECIDENDI, OBEITERDICTTA, SUB-SILENTIO AND PER-INCURIM.
A) Precedent:-
1- 'Precedent' is the statement of law found in the decision of superior
Court which decision has to be followed by that Court and by Court inferior
to it. Precedent is a previous model upon which, the judges have to follow
the past decisions carefully in the cases before them as a guide for all
present or future decisions. Precedent is the second known source of law.
The statute is enacted by legislation, whereas the precedents are the result
of the pronouncements of the Courts and the principles laid down by the
Court while dealing and interpreting the statute enacted by the legislation.
That is why the precedent is also called 'Judgment Law'. The precedent, is
therefore, judicial decision which contains in itself a principle. Judicial
Precedent means a judgment of a Court of Law cited as an authority for
deciding a similar set of facts, a case which serves as authority for the legal
principle embodied in its decision. A Judicial Precedent is a decision of the
Court used as source for future decision making. A Precedent means
anything said or done by a Court, which furnishes a rule for subsequent
conduct.
2- In Oxford dictionary 'precedent' is defined as previous instance or
case which is or may be taken as an example of rule for subsequent cases
or by which some similar set of circumstances may be supposed or
justified. According to Sir John Salmand the doctrine of precedent has two
meanings namely, 1) in a lose sense the precedent means merely
reported case law which may be cited and probably followed by the Courts,
2) in its strict sense precedent means that case law which not only has a
great binding authority but must also be followed.
3- As per Article 141 of the Constitution of India, the law declared by
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the Supreme Court shall be binding on all Courts within the territory of
India. In order to know exact meaning of the precedent, it is necessary to
know as to what is meant by “the law declared by the Supreme Court”
appearing in Article 141. Spate of decisions of the Hon'ble Supreme Court
have clarified that there is vast difference between the expressions “the law
declared by the Supreme Court” and “the law enacted by the Legislature”.
It is well settled that Article 141 empowers the Supreme Court to declare
the law and not to enact the law, which is the function of the legislature. To
declare the law means to interpret the law. This interpretation of law is
binding on all the Courts in India. This is called as precedent.
4- The General Principle of law laid down by the Supreme Court is
applicable to every person including those who were not parties to that
order. While applying the decision of the Hon'ble Supreme Court by the
other Courts, what is required is to understand the true principles laid down
some basic features of Article 141 of the Constitution of India are as
below :-
1) All the Courts in India are bound by law to follow the decision ofSupreme Court.
2) Firstly, the judgment has to be read as a whole and at the same timethe observation from the judgment has to be determined in the lightof the questions presented before the Court.
3) A judgment is used as a precedent only if it is based on deciding orresolving a question of law.
4) Sometimes while deciding a case court is divided, during thatsituation the decision taken by the majority of judges will be laterused as precedent not the decision taken by the minority of judges.
5) Ex-parte decisions by the Supreme Court, are also binding in natureand can be used as precedent.
6) The Supreme Court is not bounded by its own decision.
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7) Procedural irregularity and immateriality does not invalidate thebinding nature of a judgment.
8) Special leave petition are binding in nature.
5- There are two theories of precedent and they are declaratory
theory and constitutive theory. According to the declaratory theory of
precedent, the judge never makes law and he merely declare what is
existing law. According to constitutive theory, the function of judge is to
make precedent, which binds not only on the parties but future cases also.
Where there is settled principle of law on any point the judges have no
authority to change it for a new law of their own making.
6- In the case of "Commissioner of Income Tax V/s. M/s
Sun Engineering Works (P) Ltd., reported in AIR 1993 S.C. 43, the
Hon'ble apex Court held that, while applying the decision to a later case,
the Court must carefully try to ascertain the true principle laid down by the
decision of the Supreme Court and not to pick out words or sentences
from the Judgment divorced from the context of the question
under consideration by the Court to support their reasoning.
7- The object of doctrine of precedent is to avoid confusion,
uncertainty, multiplicity of the cases and to achieve uniformity. Precedent is
source of law. It is an evidence of law. Precedent may be distinguished as
an authoritative and persuasive.
An authoritative precedent is one which judges must follow whether
they approve it or not. Authoritative precedents are of two kinds, absolute
and conditional. In the case of absolute authoritative precedents, they have
to be followed by the judges even if, they do not approve of them.
Conditional Precedents can be disregarded either by dissenting or by
overruling. In the case of overruling, the precedents overruled in its
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authoritatively pronounced to be wrong so that it cannot be followed by the
Courts in future.
A persuasive precedent is one which the judges are under no obligation
to follow, but they will take into consideration and to which they will attach
such weight as it seems to them to deserve.
Various kinds of persuasive precedent are as follows:
1) Foreign Judgment;
2) The decision of superior courts to other parts of British Empire;
3) Judgment of Privy Council when sitting as the final court of appealfrom the colonies;
4) Judicial dicta that is statement of law which go beyond the occasionand lay down a rule that is irrelevant to the purpose in hand.
Advantages of Precedent:-
(i) There is certainty in the Law. (ii) There is uniformity in the Law. Similar cases will be treated in the way. (iii) Judicial Precedent is flexible. (iv) Judicial Precedent is practical in nature. (v)Judicial Precedent is detailed.
B) Precedent and Ratio Decidendi
8- Principle laid down in any judgment on the rule of law becomes an
authority and it is called ratio decidendi of the case. The literal meaning of
the ratio decidendi is, “ the reason for deciding”. As per Black's Law
Dictionary, ratio decidendi means, the principle or rule of law on which a
Court's decision is founded. The rule of law on which the later Court thinks
that, previous Court founded its decision. In case of ratio decidendi court
lays down the principle on which the decision is based. The doctrine of
15
precedent pre-supposes existence of the hierarchy of Courts. The general
rule is that a court is bound by the decisions of all higher courts. In our
country all High Courts as well as Courts subordinate to the High Courts
are bound by the decisions of the Supreme Court and all courts
subordinate to the High Court are bound by the decisions of their
respective High Courts. However, the decision of one High Court is not
binding on another High Court. It only has a persuasive authority.
9- In case of ICICI Bank Ltd V/s. Municipal Corpn. Of Greater
Bombay AIR-2005 S.C.-3315, the Honble Supreme Court held that the
ratio and effect of the judgment is required to be ascertained with reference
to the question of law as decided by the Court. The ratio of the judgment or
the principle upon which the question before the Court is decided is alone
binding as a precedent. The decision of the Supreme Court upon a
question of law is considered to be a binding precedent, and this must be
ascertained and determined by analyzing all the material facts and issues
involved in the case.
10- In another case of CIT v/s Sun Engineering Works (P.) Ltd.
(1992)- 4 – SCC 363, the Hon'ble Supreme Court observed that it is neither
desirable nor permissible to pick out a word or a sentence from the
judgment of the Court, divorced from the context of the question under
consideration and treat it to be the complete 'law' declared by the Supreme
Court. The judgment must be read as a whole and the observations from
the judgment have to be considered in the light of the questions which were
before the Supreme Court.
11- In the case of Rajesh Singh Dalal Vs. Chaudhari Devilal
University Sirsa, 2008-09, S.C.C.284. The Hon'ble Supreme Court has
observed that, “ the decision of a Court is a Precedent, if it lays down some
principle of Law supported by reasons. Mere casual observations or
16
directions without laying down any principle of Law and without giving
reasons do not amount to proof of Precedent”.
12- Full Bench of the Hon'ble Bombay High Court discussed in
detail about the doctrine of Precedent, Ratio Decidendi and Stare Decisis
in the case of Emkay Exports Mumbai V/s. Madhusudan Srikrishna
2008 (4) Mh.L.J. 843 (page 844):-
“ The concept of precedent has attained important role inadministration of justice in the modern times. The casebefore the Court should be decided in accordance with lawand the doctrines. The reason and spirit of case make lawand not the letter of a particular precedent. This underlyingprinciple which forms the only authoritative element of aprecedent is often termed “ the ratio decidendi”. Findingratio decidendi is not a mechanical process but an artwhich one gradually acquires through practice. What isreally involved in finding the ratio decidendi of a case is theprocess of abstraction. Ratio decidendi is a term used incontrast to obiter dictum which is not necessarily binding inlaw. The concrete decision is binding between the parties toit, but it is the abstract ratio decidendi which alone has theforce of law as regards the world at large. The doctrine ofprecedent relates to following of previous decisions with itslimitations. A ruling of Bench of Higher Court is consideredto be binding on the Lower Courts and the Courts having asmaller Bench structure. Earlier judgments are even takento be binding on subsequent equi Bench unless and untilreasons compelling for taking a divergent view are stated.To apply this principle, the Court must examine the processof appropriate reasoning as to the applicability of theprecedent cited before the Court or even which of the viewsexpressed by a higher Court or even a larger Bench oreven a Bench of equi strength is more aptly applicable tothe facts and circumstances of the case in hand. Theessence of law of precedent is its applicability on the basisof ratio decidendi. The court would be guided by the settledprinciples in making up its mind whether the judgmentscited before it is a precedent to be followed or notdepending on the facts of a given case. The law ofprecedent thus is a respected canon of judicialadministration and subsequent Benches essentially mustfollow the views of the earlier Benches unless they fellwithin any of the stated exceptions.”
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C) Doctrine of Stare Decisis:-
13- The doctrine of stare decisis, means “to stand by decided cases”
or “to uphold precedents”. Doctrine of stare decisis is a general maxim
which states that when a point of law has been decided, it takes a form of a
precedent which is to be followed subsequently and should not normally be
departed from. The rule of stare decisis means a principle of law settled by
the Courts long ago and followed by series of decisions for the long period
where the facts are substantially the same. It is binding in nature and
should be strictly adhered to by the Courts. The settled position of law
cannot be dislodged by this fact that another view is also possible. Where it
is found that the established principle of law is outside the statute or
common law or considerations of public policy demand the change only the
Apex Court can dislodge the settled position.
14- What is precluded is that, where a principle of law has become
established by a series of decisions, it is binding on the Courts and should
be followed in similar cases. It is a wholesome doctrine which gives
certainty to law and guides the people to mould their affairs in future. The
doctrine of stare decisis should always be strictly adhered to by the courts
of law in order to avoid confusion and uncertainty and to subserve the ends
of justice. In the case of Emkay Exports Mumbai v/s Madhusudan
Srikrishna 2008 (4) Mh.L.J. 843, the Hon'ble High Court held that:-
“While interpreting the judgment, the Court has to pinpoint its attention to the ratio of the judgment. Keeping inview the principle of 'stare decisis' a view which has beenholding the fort need not be disturbed only becauseanother view would be possible. The judgments whichhave held the field for a fairly long time ought not to bedisturbed unless there is a prepondering necessitydictated by the demands of justice to overturn them.Taking of a different view on a mere thought that it wouldhave been proper that a different view was taken is nothealthy tradition to the law of precedents. The doctrine of
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'stare decisis' is based upon rule of convenience,expectancy and public policy. It is to be adhered to even ifit is not imperative to do so. Applicability of law must bedetermined in respect of each case to avoid error of factand law. Controversies must be determined in each caseby use of discretion by the Court. It may be appropriatenot to perpetuate errors but it should also be ensured thatconsistency of law is not done away with by suchdiscretion.
15- In a decision reported in Bombay Cases Rporter 2007(5)
Prabhudas Damodar Kotecha and others vs. Manharbala Jeram
Damodar the doctrine of stare decisis was elucidated. It was observed
that, the doctrine of “stare decisis” envisages that the judicial decisions
hold a binding force for the future. A judgment is authoritative only as to
that part of it which is considered to have been necessary for the decision
of the actual issues between the litigants. It is true that in some cases, it
may difficult to extract a ratio, and the difficulty is enhanced when no long
reasons are recorded, expressing an option/view as to the issues raised,
considered and decided. The doctrine of stare decisis further envisages
that the lower Courts are bound by such decisions of the higher Courts and
thus every Court in the State of Maharashtra and Goa is bounded by the
decisions of this Court. Our Judicial System is characterised by a scheme
of hierarchy of Courts. The Supreme Court being the Apex Court and High
Courts being the highest courts in different States and, therefore, the
doctrine of stare decisis or the doctrine of binding precedents is the
cardinal feature of the Indian Judiciary. When High Court decides a
principle or expresses opinion on the question of law, which was necessary
for the decision of the case, such judicial decisions have a binding force for
the future and it is the duty of subordinate courts to follow such decisions.
16- While statutes and enactments of the legislature lay down the
general rules to be applied in the adjudication of disputes between parties,
the final authority for the interpretation of those rules are the courts. The
19
doctrine of stare decisis makes the decisions of courts, usually the higher
forums, binding on subordinate courts in cases in which similar or identical
questions of law are raised before the court. The application of this doctrine
ensures that there is uniformity and certainty in the law. It saves time and
efforts of judges and helps in preventing arbitrary action on the part of
judges. The doctrine thus ensures that at least over a certain period of time
law remain certain and people are able to conduct their business in
accordance with the prevalent interpretation of law. The doctrine is thus in
the interest of public policy. In India, the doctrine is constitutionally
recognized in respect of the decisions of the Supreme Court which have
been declared under Article 141 to be binding on all courts and tribunals in
the country. This of course implies that even a single pronouncement of the
Supreme Court would be binding on subordinate courts. However, as held
by Hon'ble Supreme Court in the case of Bengal Immunity vs. State of
Bihar, decided on 4.12.1954, the decisions of the Supreme Court are not
binding on itself. In so far as High Court are concerned, the decisions of a
High Court are binding on all subordinate Courts within the jurisdiction of
High Court. It is only the reasons for deciding a case i.e., the ratio
decidendi of the case which are binding on future courts. There is no
definite view as to how the ratio decidendi is to be determined but there
are a number of tests for its determination of which some are the material
facts.
Judgments of High Courts as Precedents:-
17- Like Article 141 empowering the Supreme Court to declare the
law and making its precedents binding on all the Courts, there is no specific
provision directly empowering the High Court to declare the law and
making its decisions binding on its subordinate Courts. But it is well settled
that the Courts from a State subordinate to a High Court from the State, are
bound by its decisions. Question is what is the basis for this settled law.
Answer to this question is found in the Supreme Court's decision in M/s.
20
East India Commercial Co.Ltd. Calcutta and Another vs. Collector of
Customs, Calcutta, (AIR 1962 S.C. 1893). The Hon'ble Supreme Court
held that, the law declared by the Highest Court in the State is binding on
Authorities or Tribunals under its superintendence, and that they cannot
ignore it either in initiating a proceeding or deciding on the rights involved in
such a proceeding. If that be so, the notices issued by the authority
signifying the launching of proceedings contrary to the law laid down by the
High Court would be invalid and the proceedings themselves could be
without jurisdiction.
18- Apart from the provisions of Article 215, 226, 227 of the
Constitution, there is also provision in Article 372 which makes a decision
of the High Court binding on its subordinate courts. Article 372 speaks
about making the pre-constitutional laws continue to exist until altered or
repealed or amended by a competent legislature or other competent
authority.
19- The doctrine of precedent as has been applicable to the
decision of the parent High Court. It is not applicable to the decision of
other High Courts as constitutionally they have no supervisory powers over
the Courts of lower judiciary in other States. The above discussion in
respect of constitutional provisions making a precedent of a parent High
Court binding on the Courts of the lower judiciary are concerning its
subordinate courts in view of the above discussed provisions and hierarchy
of Courts. Hence the doctrine of precedent can not be applicable to the
decisions of other High Courts. However, the decisions of other High
Courts have persuasive value and can be used as advisory, if on the same
point, there is no decision of a parent High Court.
20- Sometimes it does happen that conflicting and contrary decisions
of the Hon'ble Supreme Court or the Hon'ble High Court consisting of co-
equal Benches are cited before the Court. Under such circumstances,
21
there is confusion as to which of the judgment is to be followed by the sub-
ordinate Courts to decide. Hon'ble Bombay High Court in the case of
“Kamleshkumar Ishwardas Patel vs. Union of India reported in 1994
Mh.L.J. 1669 observed that, this can be only reasonable solution and the
only way out when we are confronted with contrary decisions of the Hon'ble
Supreme Court emanating from co-equal Benches. Both being binding on
us by reason of their authority, we cannot but have the unpleasant task of
choosing that one; which appears to have better authority of reasons.
21- Thus it appears that Hon'ble High Court can choose any one of
the two conflicting judgments which appears to have better reasoning and
convincing. However, the point is that, where the subordinate courts are
also entitled to choose any one of the two conflicting judgments on the
basis of better authority of reasons. In some of the cases it has been
observed and held that the judgment subsequent in time is binding upon
the sub-ordinate courts. The Hon'ble Karnataka High Court in the cases
reported in AIR 1980 Karnataka 92, AIR 1986 Karnataka 63, AIR 1987
Karnataka 186, the Hon'ble Allahabad High Court in the case reported in
AIR 1981 Allahabad 300, and the Hon'ble Gujarat High Court in the case
reported in AIR 1986 Guj.81, held that, if two Benches of the Supreme
Court consisting of equal number of Judges deliver conflicting decisions,
latter decision to be followed.
22- In case of two conflicting decisions of Benches of not equal
number of judges of the same Court, whether the Supreme Court or High
Court, larger Bench decision shall be followed, whether it was earlier or
later. In Commissioner of Income Tax, Bihar vs. Trilok Nath Mehrotra
and others [(1998) 1 SCC 289], it has been held that where there was a
conflict between the decisions of two Benches of different strength, the
decision of the larger Bench will prevail. In Central Board of Dawoodi
Bohra Community Vs. State of Maharashtra (AIR 2005 SC 752), the
22
Five Judge Constitution Bench has held that the law laid down by it in a
decision delivered by a Bench of larger strength, is binding on any
subsequent Bench of lesser or co-equal strength.
23- In case of two conflicting decisions of Benches of equal
number of judges of the same court i.e. the Supreme Court or High Court in
ignorance of its earlier judgment, earlier judgment becomes the law of the
land in view of doctrine of precedent.[Indian Oil Corporation Ltd vs.
Municipal Corporation & Anr. AIR 1985 SC 1480, Central Board of
Dawoodi Bohra Community and Another vs. State of Maharashtra and
Another AIR 2005 SC 752].
D) Obiter Dicta:-
24- The term 'obiter dictum' means remark by the way in judgment .
It is an expression of opinion on a point which was not necessary for
decision of the case. Literally means something said by the judge by the
way, which does not have any binding authority. An obiter dicta is an
observation by a Court on a legal question suggested by a case before it,
but not arising in such manner as to require decision. It is not binding as a
precedent, because the observation was unnecessary for the decision
pronounced by the Court. But though not binding as a precedent an obiter
of the Supreme Court, being the highest tribunal, is worthy of respect and
considerable weight. These dicta have the force of persuasive precedent
only. It helps in the growth of law. The defects in the legal system can be
pointed out in the obiter dicta.
E) Sub- Silentio:-
25- The Black's Law Dictionary defined the meaning of sub-silentio as,
'the precedents that pass sub-silentio are of little or no authority. Latin
meaning of the concept sub-silentio is, 'Under' or 'in silence'. It can be
understood as, 'without notice being taken or without making particular
point in question amounts to sub silentio. So such observations or
23
decisions should not be treated as precedents.
26- A decision passes sub-silentio, in the technical sense that has
come to be attached to that phrase, when the particular point of law
involved in the decision is not perceived by the Court or present to its mind.
The Court may consciously decide in favour of one party because of point
'A', which it considers and pronounces upon. It may be shown however that
logically the court should not have decided in favour of the particular party
unless it also decided point 'B' in his favour but point 'B' was not argued or
considered by the Court. In such circumstances although point 'B' was
logically involved in the facts and although the case had a specific outcome
the decision is not an authority on point 'B'. Point 'B' is said to pass sub
silentio.
F) Per-incuriam :
27- Per incuriam means that a court failed to take into
account all the relevant and vital statutes or case authorities and that this
had a major effect on the decision. In loose sense, it means through
inadvertence or through want of care. The per incuriam rule is a well -
established technical rule; but you must be careful here. Per incuriam
does not simply mean the earlier court got things wrong. It only means
there was a significant oversight. A decision is per incuriam need
not be relied upon as precedent. The court is not bound by its own
decisions found to have been made per incuriam. The fact that the case
being examined had weaknesses in argument, or in the judgment,
does not make the decision per incuriam. In Municipal Corporation
of Delhi v. Gurnam Kaur, AIR 1989 SC 38, it was held that decisions per
incurium are those that have been rendered in ignorance of the terms of
the statute and of a rule having the force of a statute.
28- It is clear law that a precedent loses its binding force if the Court
24
that decided it overlooked an inconsistent decision of a higher court. Such
decisions are also per incuriam. A court is not bound by its own decision
that is in conflicting with one another. If the new decision is a conflict with
the old, it is given per incuriam and is not binding on later courts. In this
circumstances the rule is that where there are previous inconsistent
decisions of its own, the court is free to follow either i.e. earlier or later. To
come within the category of per incuriam it must be shown not only that the
decision involved some manifest slip or error but also that to leave the
decision standing would be likely, inter alia, to produce serious
inconvenience in the administration of justice or significant injustice to
citizens.
29- Referring the Halsbury's Laws of England, the Apex Court in
State of Bihar Vs. Kalika Kuer alias Kalika Singh and Others (2003) 5
SCC 448 examined the circumstances in which a decision is said to have
been rendered per incuriam as follows:-
“A decision is given per incuriam when the court hasacted in ignorance of a previous decision of its own orof a court of co-ordinate jurisdiction which covered thecase before it, in which case it must decide which caseto follow; or when it has acted in ignorance of House ofLords decision, in which case it must follow thatdecision; or when the decision is given in ignorance ofthe terms of statute or rule having statutory force.”
30- In a recent Judgment by the Hon'ble Apex Court, in Hyder
Consulting (UK) Ltd. Vs. Governor, State of Orissa Through Chief
Engineer [2015(4) Mh.L.J.] 7, the concept of per in curiam is elaborated.
The Latin expression per incuriam literally means 'through inadvertence'. A
decision can be said to be given per in curiam when the Court of record
has acted in ignorance of any previous decision of its own, or a subordinate
Court has acted in ignorance of a decision of the Court of record. As
25
regards the judgments of this Court rendered per incururiam, it cannot be
said that this Court has “declared the law” on a given subject-matter, if the
relevant law was not duly considered by this Court in its decision. The
Hon'ble Chief Justice Shri. H.L. Dattu observed in paragraph No.14, “ I am
of the considered view that a prior decision of this Court on identical facts
and law binds the Court on the same points of law in later case. In
exceptional circumstances, where owing to obvious inadvertence or
oversight, a judgment fails to notice a plain statutory provision or obligatory
authority running counter to the reasoning and result reached, the principle
of per incuriam may apply”. The case of State of U.P. Vs. Synthetics and
Chemicals Ltd. (1991) 4 SCC 139 has been referred in which it is
observed that, ' incuria' literally means ' carelessness'. In practice per
incuriam appears to mean per ignoratium. English Courts have developed
this principle in relaxation of the rule of stare decisis. The 'quotable in law'
is avoided and ignored if it is rendered, 'in ignoratium of a statute or other
binding authority' .
31- A precedent may lose all or much of its binding force, if:
A) A statutory rule or statute inconsistent with it is subsequently enacted,as in the case of “Shahabano vs. Mohd. Ahemadkhan” reported in AIR1985, 945. Muslim Womens (Protection of Rights on Divorce ) Act, 1986came to be enacted subsequently, as such the ratio laid down inShahabano's case ceases to have force of law.
B) If it is reversed or overruled by a higher Court.
C) It is affirmed or reversed on different ground.
D) It was rendered in ignorance of a statute or a rule handing force ofstatute.
E) It is a decision per incuriam.
F) It is inconsistent with an earlier decision of the Higher Court or an earlydecision of the larger Bench of the same Court.
26
G) New decision is in conflict with the old, for it is given per incuriam.
H) The precedent passed sub silentio i.e. when the particular point of lawinvolved in the decision is not pursued by the Court, or the point wasdecided without argument, without reference to the critical words of the ruleand without any citation of authority.
I) A decision is erroneous as being contrary to the statute or to a previoushigher judicial authority- or is founded on wrong principles.
32- Thus, while considering the judgments cited by the Bar, it is
necessary to consider the ratio laid down by the Hon'ble Court. It is also
necessary to consider whether the judgment is per incuriam or it is passed
sub silentio. It is, therefore, necessary to apply the Judgment Law
cautiously.
Hence this summary is concluded.
Members of Core Group :-
Shri. D.N. Argade, Smt. M.S. Jawalkar, District Judge-1, Basmath. Principal District & Sessions Judge
Parbhani.
Shri. C.W. Saindani, Shri. R.M. Sadrani, DistrictJudge-1,Hingoli. District Judge-2, Parbhani
Shri. A.A. Sayeed, Shri. S.N. Sonwane, District Judge-1, Gangakhed. Civil Judge (S.D.) Parbhani.
*****
27
NEGOTIABLE INSTRUMENTS ACTSECTION 138 TO 142 JURISDICTION
WITH RECENT AMENDMENT.
INTRODUCTION:
1. The word 'negotiable' means 'transferable by delivery' and
the word 'instrument' means a 'written document by which a right is
created in favour of some person. The transfer should be
unrestricted and in good faith. Negotiable instrument is a document
guarantying the payment of a specific amount of money, either on
demand, or at the same time, with the payer name on the
document. It includes promissory note, cheques, bill of exchange,
bearers bonds or bank notes etc. It is governed by the Negotiable
Instruments Act, 1981. This Act was amended in the year 1989 and
2002. Before 1988 there was no provision to restrain the person
issuing the cheque without having sufficient fund in the account, the
only remedy against the dishonour of cheque was a civil liability
accrued. In order to ensure promptitude and remedy against the
defaulters of negotiable instrument a criminal remedy of penalty
was inserted in the Act by amendment 1988. The second
noteworthy amendment was when the Parliament enacted
Negotiable Instrument (Amendment and Miscellaneous Provisions )
Act , 2002 which is intended to plug the loopholes.
2. The cheque is one of favorite negotiable instrument.
When cheques were issued as a negotiable instrument, there was
always possibility of the cheque being issued without sufficient fund
in the account. With a view to protect honest drawee of the cheque,
in the case of dishonour of cheque, it is made punishable offence
28
as per the provisions of Section 138 to 142 of the Act. It is inserted
by amendment Act 1988. The object of amendment is to regulate
the growing business, trade, commerce and industrial activities. To
promote greater vigilance in financial matters and to safeguards the
faith of creditors in draw of the cheques. By amendment of the
year 2002 by which Section 143 to 147 were newly inserted and
provisions of Sec. 141, 142 and 148 were amended in order to
dispose of the case expeditiously and in time bound matters.
3. In public interest litigation filed by the Indian Bank
Association and Ors. Vs. Union of India (UOI) and Anr. (AIR 2014 SC
2528) the Hon'ble Supreme Court framing the procedure to be followed
uniformly by all courts for speedy and expeditiously disposal of Sec. 138
Cases. The Hon'ble Supreme Court giving directions to all Criminal Courts
thus:
DIRECTIONS:
(1) Metropolitan Magistrate/Judicial Magistrate(MM/JM), on the day when the complaint under Section138 of the Act is presented, shall scrutinize thecomplaint and, if the complaint is accompanied by theaffidavit, and the affidavit and the documents, if any, arefound to be in order, take cognizance and directissuance of summons.
(2) MM/JM should adopt a pragmatic and realisticapproach while issuing summons. Summons must beproperly addressed and sent by post as well as by e-mail address got from the complainant. Court, inappropriate cases, may take the assistance of the policeor the nearby Court to serve notice to the accused. Fornotice of appearance, a short date be fixed. If thesummons is received back un-served, immediate followup action be taken.
(3) Court may indicate in the summon that if theaccused makes an application for compounding of
29
offences at the first hearing of the case and, if such anapplication is made, Court may pass appropriate ordersat the earliest.(4) Court should direct the accused, when he appears tofurnish a bail bond, to ensure his appearance during trialand ask him to take notice under Section 251Cr.P.C. toenable him to enter his plea of defence and fix the casefor defence evidence, unless an application is made bythe accused under Section 145(2) for re-calling awitness for ross-examination.
(5) The Court concerned must ensure that examination-in-chief, cross-examination and reexamination of thecomplainant must be conducted within three months ofassigning the case. The Court has option of acceptingaffidavits of the witnesses, instead of examining them inCourt. Witnesses to the complaint and accused must beavailable for cross-examination as and when there isdirection to this effect by the Court.
SECTION 138 OF THE NEGOTIABLE INSTRUMENTS ACT, 1881 :
5. In India, there is reason to believe that instruments of
exchange were in use from early times and we find that papers
representing money were introduced into the country by one of the
Muhammadan sovereigns of Delhi in the early part of the fourteenth
century, the idea having been borrowed from China; and it is the
accepted theory of the western savants, that in China a complete
system of paper-currency and banking had been developed as early
as the tenth century and it is not improbable that such an idea filtered
into India sometime later.
6. Before the passing of the Act, the law of negotiable
instruments as prevalent in England was applied by the courts in
India when any question relating to such instruments arose between
Europeans. Though the Negotiable Instruments Act had been
passed into law in 1881, Chapter XVII comprising sections 138 to
30
142 was inserted by the Banking, Public Financial Institutions and
Negotiable Instruments Laws (Amendment) Act, 1988 (66 of 1988).
7. The value of a cheque, which was reduced to merely a
piece of paper, particularly amongst the business community, has
been greatly enhanced since the introduction of this new Chapter
XVII relating to penalties in case of dishonour of certain cheques for
insufficiency of funds in the accounts. The implementation of these
provisions for nearly 14 years revealed certain shortcomings which
have been endeavoured to be plugged by the Negotiable
Instruments (Amendment & Miscellaneous Provisions) Act, 2002 (55
of 2002). The Act 55 of 2002 has, besides other amendments,
amended sections 138, 141 and 142 and inserted new sections 143
to 147 in the Act (section 143 - summary trial; section 144 - service
of summons; section 145 - evidence on affidavit; section 146 -
Bank’s slip prima facie evidence; section 147 - offences to be
compoundable).
SECTION 138 READS AS UNDER:
8. ‘Dishonour of cheque for insufficiency, etc., of funds in the
account. Where any cheque drawn by a person on an account
maintained by him with a banker for payment of any amount of
money to another person from out of that account for the discharge,
in whole or in part, of any debt or other liability, is returned by the
bank unpaid, either because of the amount standing to the credit of
that account is insufficient to honour the cheque or that it exceeds
the amount arranged to be paid from that account by an agreement
made with that bank, such person shall be deemed to have
committed an offence and shall, without prejudice to any other
provision of this Act, be punished with imprisonment for a term which
31
may extend to two years, or with fine which may extend to twice the
amount of the cheque, or with both: Provided that nothing contained
in this section shall apply unless-
(a) the cheque has been presented to the bank within a period of sixmonths from the date on which it is drawn or within the period of itsvalidity, whichever is earlier;
(b) the payee or the holder in due course of the cheque, as the casemay be, makes a demand for the payment of the said amount ofmoney by giving a notice, in writing, to the drawer of the cheque,within thirty days of the receipt of information by him from the bankregarding the return of the cheque as unpaid; and
(c) the drawer of such cheque fails to make the payment of the saidamount of money to the payee or, as the case may be, to the holderin due course of the cheque, within fifteen days of the receipt of thesaid notice.
Explanation.- For the purposes of this section, “debt or otherliability” means a legally enforceable debt or other liability.’
9. To constitute an offence under section 138 of theNegotiable Instruments Act the following ingredients need to befulfilled:
(i) Cheque should have been issued for the discharge,in whole or part, of any debt or other liability;
(ii) The cheque should have been presented within theperiod of six months or within the period of its validity,whichever is earlier;
Note: The cheque may be presented any number oftimes for collection within its validity.
(iii) The payee or the holder in due course shouldhave issued a notice in writing to the drawer withinthirty (fifteen prior to 14 2002 amendments) days ofthe receipt of information by him from the bankregarding the return of the cheque as unpaid;
(iv) After the receipt of the said notice by the payee or
32
the holder in due course, the drawer should havefailed to pay the cheque amount within fifteen days ofthe receipt of the said notice;
Note: Notice of dishonour is unnecessary when theparty entitled to notice cannot after due search befound (see section 98(d) of the Act).
(v) On non-payment of the amount due to thedishonoured cheque within fifteen days of the receiptof the notice by the drawer, the complaint should havebeen filed within one month from the date of expiry ofthe grace time of fifteen days, before a MetropolitanMagistrate or a Judicial Magistrate of the first class.The cognizance of a complaint may be taken by theCourt after the prescribed period, if the complaintsatisfies the Court that he had sufficient cause for notmaking a complaint within such period.
(vi) The offence under this Act is compoundable (seesection 147 of the Act, inserted in 2002)
10. Under law, when a person has tendered the amount payable
by him he must be deemed to have discharged his obligation and the
creditor is bound to accept the tender. Where on dishonour of
cheque issued by the accused, he disclaimed the liability to pay the
cheque but on receiving notice tendered payment of the whole
amount twice in front of the court but the complainant refused to
accept it both the times, the accused could not be said to be guilty of
non-payment of the amount.
11. The Hon'ble Apex Court again spelt out necessary
ingredients of section 138 the Act in Kusum Ingots & Alloys Ltd. v.
Pennar Peterson Securities Ltd. (AIR 2000 SC 954), reiterated by
the Hon'ble Apex Court in K. R. Indira v. Dr. G. Adinarayana (AIR
2003 SC 4689). What follows therefrom is that the last ingredient to
33
complete an offence under section 138 of the Act is failure of the
accused to make payment within 15 days after service of notice. If
payment is made within the said period, no offence is committed, but
in case of failure, the offence gets completed. Even if the payment is
made on the 16th day the same is not sufficient to come out of the
rigours of section 138 of the Act. In criminal law, commission of
offence is one thing and prosecution is quite another. Commission of
offence is governed by section 138 of the Act. Prosecution is
governed by section 142 of the Act.
ALLIED PROVISIONS:
(i) MODE OF TRIAL: SUMMARY PROCEDURE:-
12. Provisions of section 143, as inserted in the Act in 2002,
state that offences under section 138 of the Act shall be tried in a
summary manner. Though it begins with a non obstante clause
carving out an exception to the provisions of the Criminal Procedure
Code, sub-section (1) thereof clearly provides that the provisions of
sections 262 and 265 of the Code, as far as may be, apply to such
trials. It empowers the Magistrate to pass a sentence of
imprisonment for a term up to one year and an amount of fine
exceeding five thousand rupees. It also provides that if it appears to
the Magistrate that the nature of the case is such that a sentence of
imprisonment for a term exceeding one year may have to be passed,
he can do so after hearing the parties and recalling any witness who
may have been examined. Under this provision, so far as
practicable, the Magistrate is expected to conduct the trial on a day-
to-day basis until its conclusion and conclude the trial within six
months from the date of filing of the complaint.
13. Chapter XXI of the Criminal Procedure Code, consisting
34
of sections 260 to 265, deals with the procedure to be followed when
a case is being tried summarily. In every case tried summarily in
which the accused does not plead guilty, the Magistrate shall record
the substance of the evidence and a judgment containing a brief
statement of the reasons for the finding.
‘MENS REA’ IS NOT ESSENTIAL:
14. Offence under 138 N.I.Act is an offence without any
mens rea. It is not a criminal offence in real sense as it does not
require mens rea, like few other criminal offences, but as public
interest is hampered by such offence so it has been made a
punishable offence. It includes strict liability. Creation of the strict
liability is an effective measure by encouraging greater vigilance to
prevent usual callous attitude of drawers of cheques in discharge of
debts.
PRESUMPTIONS:
15. It is undoubtedly true that when a cheque is issued by a
person who has signed on the cheque and the complainant
reasonably discharges the burden that the cheque had been issued
towards a lawful payment, it is for the accused to discharge the
burden under Section 118 and 139 of the N.I. Act that the cheque
had not been issued towards discharge of a legal debt but was
issued by way of security or any other reason on account of some
business transaction or was obtained unlawfully.
16. However, the Negotiable Instruments Act incorporates
two presumptions in this regard: one containing in Section 118 of the
Act and other in Section 139 thereof. Section 118 (a) reads as under:
“118. Presumptions as to negotiableinstruments.- Until the contrary is
35
proved,the following presumptions shall be made:-
(a) consideration. - that every negotiable instrument was made or
drawn for consideration, and that every such instrument, when it has
been accepted, indorsed, negotiated or transferred, was accepted,
indorsed, negotiated or transferred, for consideration:
(b) as to date.- that every negotiable instrument bearing a date was
made or drawn on such date;
(c) as to time of acceptance.- that every accepted bill of exchange
was accepted within a reasonable time after its date and before its
maturity;
(d) as to time of transfer. - that every transfer of a negotiable
instrument was made before its maturity; (e) as to order of
indorsement.- that the indorsement appearing upon a negotiable
instrument were made in the order in which they appear thereon;
(f) as to stamps.- that a lost promissory note, bill of exchange or
cheque was duly stamped;
(g) that holder is a holder in due course. - that the holder of a
negotiable instrument is a holder in due course: provided that, where
the instrument has been obtained from its lawful owner, or from any
person in lawful custody thereof, by means of an offence or fraud, or
has been obtained from the maker or acceptor thereof by means of
an offence or fraud, or for unlawful consideration,the burden of
proving that the holder is a holder in due course lies upon him.”
17. Section 139 of the Act reads as under:
“139. Presumption in favour of holder. -It shall be presumed, unless
36
the contrary is proved, that the holder of a cheque received the
cheque, of the nature referred to in section 138 for the discharge, in
whole or in part, of any debt or other liability.”
18. In the case of Kumar Exports v. Sharma Carpets
[(2009) 2 SCC 513] the Hon’ble Supreme Court has elaborately
dealt with the concept of presumption, in general, and with
presumption raised under Sections 118 and 139 of the Act, in
particular. It would, indeed, be beneficial to reproduce the relevant
excerpts from the said case:
Presumptions are devices by use of which the courtsare enabled and entitled to pronounce on an issuenotwithstanding that there is no evidence or insufficientevidence. Under the Evidence Act all presumptionsmust come under one or the other class of the threeclasses mentioned in the Act, namely, (1) “maypresume” (rebuttable), (2) “shall presume” (rebuttable),and (3) “conclusivepresumptions” (irrebuttable). The term “presumption” isused to designate an inference, affirmative ordisaffirmative (sic) of the existence of a fact,conveniently called the “presumed fact” drawn by ajudicial tribunal, by a process of probable reasoningfrom some matter of fact, either judicially noticed oradmitted or established by legal evidence to thesatisfaction of the tribunal. Presumption literally means“taking as true without examination or proof.
Section 4 of the Evidence Act inter alia defines thewords “may presume” and “shall presume” as follows:
“4. ‘May presume’.—Whenever it is provided by this Actthat the court may presume a fact, it may either regardsuch fact as proved, unless and until it is disproved, ormay call for proof of it:
‘Shall presume’.—Whenever it is directed by this Actthat the court shall presume a fact, it shall regard suchfact as proved, unless and until it is disproved:
37
In the former case, the court has an option to raise the presumption or not, but in the latter case, the court mustnecessarily raise the presumption. If in a case the court has an option to raise the presumption and raises the presumption, the distinction between the two categories of presumptions ceases and the fact is presumed, unless and until it is disproved.
In order to determine the question whether offencepunishable under Section 138 of the Act is made outagainst the appellant, it will be necessary to examinethe scope and ambit of presumptions to be raised asenvisaged by the provisions of Sections 118 and 139 ofthe Act. In a suit to enforce a simple contract, theplaintiff has to aver in his pleading that it was made forgood consideration and must substantiate it byevidence. But to this rule, the negotiable instruments arean exception.
In a significant departure from the general ruleapplicable to contracts, Section 118 of the Act providescertain presumptions to be raised. This section laysdown some special rules of evidence relating topresumptions. The reason for these presumptions isthat, negotiable instrument passes from hand to handon endorsement and it would make trading very difficultand negotiability of the instrument impossible, unlesscertain presumptions are made. The presumption,therefore, is a matter of principle to facilitate negotiabilityas well as trade. Section 118 of the Act providespresumptions to be raised until the contrary is proved (i)as to consideration, (ii) as to date of instrument, (iii) asto time of acceptance, (iv) as to time of transfer, (v) as toorder of indorsements, (vi) as to appropriate stamp, and(vii) as to holder being a holder in due course.
Section 139 of the Act provides that it shall bepresumed, unless the contrary is proved, that the holderof a cheque received the cheque of the nature referredto in Section 138 for the discharge, in whole or in part,of any debt or other liability.
Section 118 of the Act, inter alia, directs that it shall bepresumed, until the contrary is proved, that everynegotiable instrument was made or drawn for
38
consideration. Section 139 of the Act stipulates thatunless the contrary is proved, it shall be presumed, thatthe holder of the cheque received the cheque, for thedischarge of whole or part of any debt or liability.
Applying the definition of the word “proved” in Section 3of the Evidence Act to the provisions of Sections 118and 139 of the Act, it becomes evident that in a trialunder Section 138 of the Act, a presumption will have tobe made that every negotiable instrument was made ordrawn for consideration and that it was executed fordischarge of debt or liability once the execution ofnegotiable instrument is either proved or admitted. Assoon as the complainant discharges the burden to provethat the instrument, say a note, was executed by theaccused, the rules of presumptions under Sections 118and 139 of the Act help him shift the burden on theaccused. The presumptions will live, exist and surviveand shall end only when the contrary is proved by theaccused, that is, the cheque was not issued forconsideration and in discharge of any debt or liability. Apresumption is not in itself evidence, but only makes aprima facie case for a party for whose benefit it exists.
The use of the phrase “until the contrary is proved” inSection 118 of the Act and use of the words “unless thecontrary is proved” in Section 139 of the Act read withdefinitions of “may presume” and “shall presume” asgiven in Section 4 of the Evidence Act, makes it at onceclear that presumptions to be raised under both theprovisions are rebuttable. When a presumption isrebuttable, it only points out that the party on whom liesthe duty of going forward with evidence, on the factpresumed and when that party has produced evidencefairly and reasonably tending to show that the real fact isnot as presumed, the purpose of the presumption isover.
The accused in a trial under Section 138 of the Act hastwo options. He can either show that consideration anddebt did not exist or that under the particularcircumstances of the case the non-existence ofconsideration and debt is so probable that a prudentman ought to suppose that no consideration and debtexisted. To rebut the statutory presumptions an accusedis not expected to prove his defence beyond reasonable
39
doubt as is expected of the complainant in a criminaltrial. The accused may adduce direct evidence to provethat the note in question was not supported byconsideration and that there was no debt or liability tobe discharged by him. However, the court need notinsist in every case that the accused should disprovethe nonexistence of consideration and debt by leadingdirect evidence because the existence of negativeevidence is neither possible nor contemplated. At thesame time, it is clear that bare denial of the passing ofthe consideration and existence of debt, apparentlywould not serve the purpose of the accused. Somethingwhich is probable has to be brought on record forgetting the burden of proof shifted to the complainant.To disprove the presumptions, the accused should bringon record such facts and circumstances, uponconsideration of which, the court may either believe thatthe consideration and debt did not exist or their non-existence was so probable that a prudent man wouldunder the circumstances of the case, act upon the pleathat they did not exist. Apart from adducing directevidence to prove that the note in question was notsupported by consideration or that he had not incurredany debt or liability, the accused may also rely uponcircumstantial evidence and if the circumstances sorelied upon are compelling, the burden may likewiseshift again on to the complainant. The accused may alsorely upon presumptions of fact, for instance, thosementioned in Section 114 of the Evidence Act to rebutthe presumptions arising under Sections 118 and 139 ofthe Act.
The accused has also an option to prove the non-existence of consideration and debt or liability either byletting in evidence or in some clear and exceptionalcases, from the case set out by the complainant, that is,the averments in the complaint, the case set out in thestatutory notice and evidence adduced by thecomplainant during the trial. Once such rebuttalevidence is adduced and accepted by the court, havingregard to all the circumstances of the case and thepreponderance of probabilities, the evidential burdenshifts back to the complainant and, thereafter, thepresumptions under Sections 118 and 139 of the Act willnot again come to the complainant's rescue.”
40
WHO MAY FILE COMPLAINT:
WHO CAN FILE COMPLAINT
19. Payee or holder in due course is a competent person to
file complaint. Complaint must by corporal person capable of making
physical appearance in the court. In case of company and firm
natural person should represent it.
COMPLAINT BY A COMPANY:
20. A complaint which is made in the name and behalf of
company can be made by any officer of that company and that the
section does not require that complaint must be signed and
presented only by authorized agent or a person empowered under
the Articles of association or by any resolution of the Board of
Directors.
COMPLAINT BY POWER OF ATTORNEY:
21. The division bench of Hon'ble Bombay High Court
incase of Reliance Industries ltd. V. The State of Maharashtra
( MANU/MH/0362/2010 ) has held that the complaint can be filed
and signed by General Power of attorney of the complainant and it
would be valid complaint u/s.138 of N.I.Act.
22. Further the Hon'ble Apex Court in case of Shankar
Finance & Investments V. State of A.P. (AIR 2009 SC 422) held as
"The attorney holder is the agent of the grantor. When the grantor
authorizes the attorney holder to initiate legal proceedings and the
attorney holder accordingly initiates legal proceedings, he does so
41
as the agent of the grantor and the initiation is by the grantor
represented by his attorney holder, and not by the attorney holder in
his personal capacity. Therefore, where the payee is a proprietary
concern, the complaint can be filed : (i) by the proprietor of the
proprietary concern, describing himself as the sole proprietor of the
"payee"; (ii) the proprietary concern, describing itself as a sole
proprietary concern, represented by its sole proprietor; and (iii) the
proprietor or the proprietary concern represented by the attorney
holder under a power of attorney executed by the sole proprietor".
Hence the complaint can be filed and signed by General Power of
Attorney of the complainant. Power of attorney holder as a witness:
23. The Hon'ble Bombay High Court in case of Mamatadevi
Prafullakumar Bhansali Vs. Pushpadevi Kailashkumar Agrawal
and another [2005 (7) LJSOFT 36] has held that if the
powerofattorney has personal knowledge about the transaction, then
he can depose as a witness. The Hon'ble Supreme Court in the
case of Janki Vashdeo Bhojwani Vs. Industrial Bank Ltd., [AIR
2005 SC 439 ], has held that power of attorney holder cannot
depose for principal in respect of matters of which only the principal
can have personal knowledge and in respect of which principal is
entitled to be crossexamined.
24. In the case of Man Kaur Vs. Hartar Singh Sangha
( 2010 ALL SCR 2511) , the Hon'ble Supreme Court has
summarised the position as to who should give evidence in regard to
matters involving personal knowledge as follows:
(a) An attorney holder, who has signed the plaint andinstituted the suit, but has no personal knowledge ofthe transaction can only give formal evidence aboutthe validity of the power of attorney and the filing of thesuit.
42
(b) If the attorney holder has done any act or handledany transactions, in pursuance of the power ofattorney granted by the principal, he may be examinedas a witness to prove those acts or transactions. If theattorney holder alone has personal knowledge of suchacts and transactions and not the principal, theattorney holder shall be examined, if those acts andtransactions have to be proved. (c) The attorney holder cannot depose or giveevidence in place of his principal for the acts done bythe principal or transactions or dealings of theprincipal, of which principal alone has personalknowledge.
(d) Where the principal at no point of time hadpersonally handled or dealt with or participated in thetransaction and has no personal knowledge of thetransaction, and where the entire transaction has beenhandled by an attorney holder, necessarily the attorneyholder alone can give evidence in regard to thetransaction. This frequently happens in case ofprincipals carrying on business through authorizedmanagers/attorney holders or persons residing abroadmanaging their affairs through their attorney holders.
e) Where the entire transaction has been conductedthrough a particular attorney holder, the principal hasto examine that attorney holder to prove thetransaction, and not a different or subsequent attorneyholder.
(f) Where different attorney holders had dealt with thematter at different stages of the transaction, ifevidence has to be led as to what transpired at thosedifferent stages, all the attorney holders will have to beexamined.
(g) Where the law requires or contemplated theplaintiff or other party to a proceeding, to establish orprove something with reference to his `state of mind' or`conduct', normally the person concerned alone has togive evidence and not an attorney holder.
25. In the case of A.C. Narayanan Vs. State of
43
Maharashtra and another (2013) 4 MLJ (Cri) 213] the Hon'ble
Supreme Court has summarised the right of a power of attorney in
criminal proceedings in the following words:
“(i) Filing of complaint petition under Section 138 of N.IAct through power of attorney is perfectly legal andcompetent.
(ii) The Power of Attorney holder can depose and verifyon oath before the Court in order to prove the contentsof the complaint. However, the power of attorney holdermust have witnessed the transaction as an agent of thePayee/holder in due course or possess due knowledgeregarding the said transactions.
(iii) It is required by the complainant to make specificassertion as to the knowledge of the power of attorneyholder in the said transaction explicitly in the complaintand the power of attorney holder who has no knowledgeregarding the transactions cannot be examined as awitness in the case.
(iv) In the light of section 145 of N.I Act, it is open to theMagistrate to rely upon the verification in the form ofaffidavit filed by the complainant in support of thecomplaint under Section 138 of the N.I Act and theMagistrate is neither mandatorily obliged to call uponthe complainant to remain present before the Court, norto examine the complainant of his witness upon oath fortaking the decision whether or not to issue process onthe complaint under Section 138 of the N.I. Act.
(v) The functions under the general power of attorneycannot be delegated to another person without specificclause permitting the same in the power of attorney.Nevertheless, the general power of attorney itself canbe cancelled and be given to another person.
JURISDICTION:
26. The place of jurisdiction for trying cases of dishonour of
cheques, under section 138 of the NI Act,1881, has been fixed by
virtue of sub-section (2) of Section 142 as what it used to be before
44
the Hon'ble Apex Court’s ruling in K. Bhaskaran vs. Sankaran
Vaidhyan Balan and Another ( MANU / SC / 0625 /1999) ,
complaint can be filed at any of the places mentioned below. One of
the Courts exercising jurisdiction in one of the five local areas can
become the place of trail for the offence under sec. 138 of the Act
1.Where the cheque was drawn.
2. Where the cheque was presented for encashment.
3. Where the cheque was returned unpaid by drawee bank.
4. Where notice in writing was given to drawer of cheque demanding
payment. 5. Where drawer of cheque failed to make payment within
15 days of receipt of notice.
27. However, recently in case of Dashrath Rupsingh
Rathod vs. State of Maharashtra, reported in MANU /SC/ 0655/
2014 interpreted various provisions of Sec.138 of Negotiable
Instruments Act and held:
i) An offence under Section 138 of the NegotiableInstruments Act, 1881 is committed no sooner a chequedrawn by the accused on an account being maintained byhim in a bank for discharge of debt/liability is returnedunpaid for insufficiency of funds or for the reason that theamount exceeds the arrangement made with the bank.
ii) Cognizance of any such offence is however forbiddenunder Section 142 of the Act except upon a complaint inwriting made by the payee or holder of the cheque in duecourse within a period of one month from the date thecause of action accrues to such payee or holder underclause (c) of proviso to Section 138.
iii) The cause of action to file a complaint accrues to acomplainant /payee/ holder of a cheque in due course if,
(a) the dishonoured cheque is presented to the draweebank within a period of six months from the date of its
45
issue.
(b) If the complainant has demanded payment of chequeamount within thirty days of receipt of information by himfrom the bank regarding the dishonour of the cheque and
(c) If the drawer has failed to pay the cheque amountwithin fifteen days of receipt of such notice.
iv) The facts constituting cause of action do not constitutethe ingredients of the offence under Section 138 of theAct.
v) The proviso to Section 138 simply postpones/ defersinstitution of criminal proceedings and taking ofcognizance by the Court till such time cause of action interms of clause
(c) of proviso accrues to the complainant.
vi) Once the cause of action accrues to the complainant,the jurisdiction of the Court to try the case will bedetermined by reference to the place where the cheque isdishonoured.
vii) The general rule stipulated under Section 177 ofCr.P.C. applies to cases under Section 138 of theNegotiable Instruments Act. Prosecution in such casescan, therefore, be launched against the drawer of thcheque only before the Court within whose jurisdiction thedishonour takes place except in situations where theoffence of dishonourof the cheque punishable underSection 138 is committed along with other offences in asingle transaction within the meaning of Section 220(1)read with Section 184 of the Code of Criminal Procedureor is covered by the provisions of Section 182(1) readwith Sections 184 and 220 thereof.
28. The Negotiable Instrument Amendment Ordinance 2015
which was promulgated by the President of India on 5.6.2015 has
lapsed on 31.8.2015. Said Ordinance was not re-promulgated.
46
However, even if an ordinance comes to an end for whatever reason,
the Ordinance does not become void ab initio. Section 6 of General
Clauses Act, which is applicable for Central Acts, shall apply equally
to an Ordinance. Ordinance is valid when promulgated and
whichever transaction have been completed under the provisions of
the Ordinance can not generally be reopened with ordinance came to
an end. But, the fresh cases may have to be filed in accordance with
the legal position as it existed prior to 15.6.2015.
29. Article 123 of the Constitution of India provides that the
ordinance is valid for a period of six weeks from the date of the
Assembly or Parliament after the promulgation of the Ordinance.
The President has power to promulgate the Ordinance during the
recess of the Parliament, if the President satisfied that circumstances
exists which render it necessary for him to take immediate action, he
may promulgate such ordinance as the circumstances appear to him
to require. Such ordinance shall have the same force and effect as
an Act of the Parliament, but every such ordinance shall be laid
before the both houses of Parliament and shall cease to operate the
expiration of six weeks from the every Assembly or Parliament , or,
before the expiration of that period resolution disapprove him if or
passed by both houses, upon the passing of the second of those
resolution and may be withdrawn by anytime by the President.
30. The Parliament reassembled for the monsoon session
on 21.7.2015 , hence, as the ordinance has not been passed within
six weeks, this means that this ordinance stand lapsed on 31.8.2015.
During the said session of the Parliament, the Negotiable Instrument
amendment bill 2015 that was based on the above Ordinance was
passed by Lok Sabha on 6th August, 2015 ,however, the same could
not be passed by the Rajya Sabha. As the position reverse to the
47
pre 15.6.2015 prior to this ordinance being promulgated Dashrath
Roopsingh Rathore case (Supra),read with the decision of the
Bombay High Court in the case of Ramanbhai Mathurbhai Patel
was again applicable.
CURRENT POSITION :
31. Now we have gone back to the legal position that
extended dated 15.6.2015, when the Negotiable Instrument
Amendment Ordinance 2015 ordinance was promulgated. Now
onwards the jurisdiction of the court in a cheque bounce cases will
be decided on the basis of the Negotiable Instrument (Amendment)
Second Ordinance 2015 has been promulgated on 22th September
2015.
32. On 22thSeptember 2015, the President of India has
promulgated a new ordinance, namely, the Negotiable Instruments
(Amendment) Second Ordinance, 2015, which shall be deemed to
have come into existence with effect from 15thJune 2015, i.e., the
date from which the first such Ordinance had come into effect. This
will ensure continuity from the first such ordinance issued on 15 June
2015. This means that the period from 3thAugust 2015 to 22
September 2015, during which there was no such Ordinance in
operation, shall also be deemed to have been covered under this
new Ordinance issued on 22thSeptember 2015.
33. The provisions of this new Ordinance lay down as to
where (i.e., in which court) a cheque dishonour case is required to be
filed and also about the transfer of the existing cheque bounce cases
registered under Section 138 of the Negotiable Instruments Act,
1881. The provisions under the new Ordinance are the same as
under the first such ordinance issued on 15thJune 2015. This means
48
that the jurisdiction of filing cheque dishonour cases under Section
138 of the N.I. Act will now be governed by the provisions of this new
Ordinance as under:
Now a cheque bouncing case can be filed only in the court atthe place where the bank in which the payee has account islocated. For example, if A is based at Delhi and he has anaccount in a bank in a particular area of Delhi. He receive acheque from someone in Mumbai. He present the cheque inDelhi in the bank where he has account. Now, if this cheque isdishonoured, then the cheque bounce case can be filed only inDelhi in the court which has jurisdiction over the area wherehis bank is located.
Secondly, once a cheque bounce case filed in a particularcourt at a place in this manner, subsequently if there is anyother cheque of the same party (drawer) which has alsobounced, then all such subsequent cheque bounce casesagainst the same drawer will also have to filed in the samecourt (even if you present them in some bank in some othercity or area). This will ensure that the drawer of cheques is notharassed by filing multiple cheque bounce cases at differentlocations. So, even multiple cheque bounce cases against thesame party can be filed only in one court even if he present thecheques in different banks at different locations.
Thirdly, all cheque bounce cases which are pending as on 15June 2015 in different courts in India, will be transferred to thecourt which has jurisdiction to try such case in the mannermentioned above, i.e., such pending cases will be transferredto the court which has jurisdiction over the place where thebank of the payee is located. If there are multiple chequebounce cases pending between the same parties as on 15June 2015, then all such multiple cases will be transferred tothe court where the first case has jurisdiction as per aboveprinciple.
The new Ordinance specifically mentions that the first suchordinance came into existence with effect from 15th June 2015, thatthe Bill to replace this first ordinance has been passed by the LokSabha but it is still pending before the Rajya Sabha, and that theParliament is not in session due to which it is necessary topromulgate this new Ordinance.
49
Submitted with highest regard.
Members of Core-Grops:
Dr. Y.G. Chaware,District Judge-1 & Addl. Session Judge,
Parbhani,
Shri. M.P. Diwate,District Judge-2 &
Addl. Session Judge, Hingoli.
Shri. P.S. Ghate, Adhoc District Judge-1,
Parbhani.
Shri. S.G. Thube, Adhoc District Judge-2,
Parbhani.
Shri. R.D. Bodhane, Chief Judicial Magistrate,
Parbhani.
*****
50
DISCUSSION OF LEGAL QUESTIONS IN OPENHOUSE:
The 1st workshop of Judicial Officer, Parbhani, 2015-16 held
on the subjects 1.“Law of Precedent-Ratio Decidendi,
Obeiter Dictta, Sub-Silentio and per-incurim” and
2.“Negotiable Instruments Act Section 138 to 142
Jurisdiction with recent amendments” was held on 12th
October 2015 at District Court, Gangakhed, District:
Parbhani under the Chairmanship of Hon'ble Principal
District and Sessions Judge, Parbhani. The discussion was
opened by reading the summary of paper on the subject of
“Law of Precedent-Ratio Decidendi, Obeiter Dicta, Sub-
Silentio and per-incurim”. Thereafter, Several issues and
relevant case laws have been discussed in the open house.
After having discussion on the legal questions and
quries relating to the workshop topics, under the
guidance of The Hon'ble Smt. M.S. Jawalkar, The
Principal District and Sessions Judge,Parbhani, following
views taken into consideration on the some important
questions which are thus -
Que. 1 : When the numbers of case laws are cited
before the Court at the time how to deal with them?
Discussion in Open House: It has been discussed in the
open house that, When the case laws are cited before the
Court, it has to find out it's ratio decidenti before applying
51
it. Courts should not place reliance on decisions without
discussing as to how the factual situation fits in with the fact
situation of the decision on which reliance is placed.
Observations of Courts are neither to be read as Euclid's
theorems nor as provisions of the statute and that too taken
out of their context. These observations must be read in the
context in which they appear to have been stated.
Judgments of Courts are not to be construed as statutes. To
interpret words, phrases and provisions of a statute, it may
become necessary for judges to embark into lengthy
discussions but the discussion is meant to explain and not
to define. Judges interpret statutes, they do not interpret
judgments.
From the brief discussion above about the legal value the
Hon'ble Smt. M.S. Jawalkar, The Principal District &
Sessions Judge,Parbhani sum up the said question thus:
In the case of Padamsundara Rao and others vs. State
of Tamilandu, (AIR 2002 S C 1334), the Hon'ble Apex
Court, made it clear that, Court should not place reliance on
decisions without discussing as to how the factual situation
fit in with the fact situation of the decision on which reliance
is placed. The Hon'ble Apex Court further held that, judicial
decisions are made in the setting of the facts of a particular
case. Circumstantial flexibility, one additional or different
fact may make a difference between conclusions in two
cases.
52
Que 2 : Whether obiter dicta of Hon'ble Supreme Court
are binding as precedents?
Discussion in Open House: It has been discussed in the
open house that:-
So far obiter dicta is concerned; it may be pointed out that
an obiter dicta of the Hon'ble Supreme Court is binding on
all Courts. This we find in AIR 1959 SC 814, The
Commissioner of Income Tax, Hyderabad, Deccan v. Mls
Vazir Sultan and sons, AIR 1975 S.C. 1087, Municipal
Committee, Amritsar v. Hazara Singh, AIR 1969 Allahabad
304 (FB), Chobey Sunder Lal v.Sonu alias Sonpal and
another, AIR 1989 Delhi 193(FB), D.C.M. Limited v. Union
of India and others, AIR 1960 Allahabad 672, Union of India
v. Firm Ram Gopal Hukum Chand and others, and AIR
1967 Rajas than 1, Radha Kishan v. State of Rajasthan and
others. It has been observed that judicial uniformity and
judicial discipline require that courts must also follow the
obiter dicta of the Hon'ble Supreme Court.
It is observed in the case of Mohandas Issardas and
others Vs. A.N. Sattanathan & Others, (A.I.R. 1995 Bom.
113) that, the court in India should accept as an
authoritative pronouncement on the particular aspect of law
and treat that pronouncement as binding. The Supreme
court has now taken the place of privy council and we would
like to say unhesitatingly that we must show the same
respect for the 'obiter dicta' of the Supreme Court that we
did for those of privycouncil. The Supreme Court is the
highest judicial tribunal in India today and it is a much
53
necessary as in the interest of judicial uniformity and
judicial discipline that all the High Courts must accept as
binding the 'obiter dicta' of the Supreme Court in the same
spirit as the High Courts accepted the 'obiter dicta' of the
privy council.
Que. 3 : What is the legal position of the said Supreme
Court on the right to strike with reference to the
concept of Ratio Decidendi?
Discussion in Open House: It has been discussed in the
open house that:-
It is a well established Common Law Principle that in a
reasoned judgement, only ratio decidendi of the judgement
is binding and the corollary concept of Obiter Dicata is a
mere finding that is not necessary to the decision of the
Court. The said principle, an elementary one of
jurisprudence, is well recognised by the Indian Supreme
Court in its various rulings interpreting Article 141 of the
Indian Constitution, which deals with the august authority of
the Supreme Court in declaring laws.
Que. 4 : What is the legal position of the Hon'ble
Supreme Court ruling on the right to strike, with
reference to the doctrine of Stare Decisis?
Discussion in Open House: It has been discussed in the
open house that:-
To state it simply, the doctrine of Stare Decisis means that
decisions of the High Court shall be followed by the Lower
54
Courts and the Courts on record shall follow their own
earlier decisions. There are some well-established
exceptions to the concept of Stare Decisis and one such
exception is judgment per incuriam which does not have
any force of law. Incuriam literally means carelessness.
Defining the concept of Incuriam, it has been held that
decisions given in ignorance of some statutory provisions or
authority are decisions reached by per Incuriam and they do
not have any validity in law.
Que. 5 : What is the concept of the expression
"Judgement Per Incuriam" ?
Discussion in Open House: It has been discussed in the
open house that:-
The precedent may not be binding when the judgment is
per incurium i.e. in ignorance of the law or contrary to the
law or its own earlier decisions of own or by inadvertence.
Judgment without reasons:
(1) If the judgment gives no reason for deciding a
point, this would not be binding because what is binding is
the reasons for the decision.
(2) If the law is amended, whether prospectively or
retrospectively, such law has to be applied in spite of a
precedent which is otherwise binding.
55
Que. 6 : Conflicting decision of the Hon'ble Supreme
Court or the Hon'ble High Court—which one is a
binding precedent?
Discussion in Open House: It has been discussed in the
open house that:-
The Courts have attempted to lay down certain principles,
when faced with conflicting decisions of the higher or same
Court. The Hon'ble Supreme Court itself held in Union of
India vs. KS Subramanium (AIR 1976 S.C. 2433) that the
proper course for a High Court in a case where there are
conflicting decisions of larger Benches of the Hon'ble
Supreme Court and smaller benches of the Hon'ble
Supreme Court, is to try to find out and follow the opinions
expressed by larger Benches in preference to those
expressed by smaller Benches of the Hon'ble Supreme
Court. The practice has now crystallized into a rule of law
declared by the Hon'ble Supreme Court. However the
Hon'ble High Court is at liberty to say but with cogent
reasons that the views expressed by the larger bench are
not applicable to the facts of a given case.
Sometimes, it also happens that the court even
the Hon'ble Supreme Court decides the matter but stating
that it should not be taken as a precedent. In such a
situation, the said judgment does not operate as a binding
judgment.
In a judgment delivered by a majority, it is not
open to the lower court to follow the minority judgment
however appealing it may be to the court. It may be
56
remembered that sometimes the judge delivering the
minority judgment in one case, in another case heard by a
larger bench the same Judge reasserts his minority view
taken in the earlier judgment and the larger bench accepts
that view. In such a situation, it becomes a majority
judgment which is binding.
Que. 7 : What is the effect of subsequent legislative
amendment on an earlier precedent?
Discussion in Open House: It has been discussed in the
open house that:-
The effect of subsequent legislative amendment on an
earlier precedent can also be considered. It has been held
that function of judiciary and the legislature are distinct and
separate and, therefore, it is not possible for the legislature
to supercede a judgment of the court. However, it has been
laid down that the same result can be achieved by the
legislature by altering the basis on which the court has
based its decision. In such a case, precedent is no longer
binding or it loses its binding effect. It has been laid down
that a legislature has no legislative power to render
ineffective earlier judicial decision by making a law which
simply declared the earlier decision as invalid and not
binding because such power would not be a legislative
power but a judicial power G.C.Kanengo vs. State of
Orissa (AIR 1995 SC 1655 at 1665). However, it has been
held that it would be permissive for the executive or the
legislature to remove the defect which is the cause of the
decision of the court. Such defect can be removed
57
retrospectively and action can be validated but a mere
validation with prospective effect without the defect being
removed would be invalid in achieving validation.
Que 8 : When the question arises in conflicting
Judgments of the same court and whether latter
judgment or earlier judgment becomes a binding
precedent?
Discussion in Open House: It has been discussed in the
open house that:-
Sometimes, there are conflicting judgments of the
same court and the question arises whether latter judgment
or earlier judgment becomes a binding precedent. In such a
situation, if the two decisions are delivered by a bench of
equal strength, latter judgment may be followed. If however,
the earlier judgment is of a larger bench, it is required to be
followed and not the latter judgment of a bench of lesser
number of judges Sometimes, it also happens that the latter
judgment does not refer to the earlier judgment of a bench
of equal strength. In such a case, it may be open for the
lower court to follow either of the two judgments.
Que. 9 : Controversy had arisen with regard to
dismissal of Special Leave Petition by the Hon'ble
Supreme Court and whether it becomes the decision of
the Hon'ble Supreme Court confirming the decision of
the High Court?
58
Discussion in Open House: It has been discussed in the
open house that,
The law is now clear. The following are the principles well
recognized as regards the binding nature of the decision of
the Hon'ble Supreme Court on Special Leave Petition:–
[1] If the court gives reasons while dismissing the
SLP, it becomes law declared and, therefore, binding under
Article 141 of the Constitution. However, this again depends
on the reasons for dismissal V.M Salgaokar vs. CIT (2000)
243 ITR 383(SC). Often, the Hon'ble Supreme Court
dismisses the Special Leave Petition because the stakes
are small or law may be subsequently amended after the
lower court’s decision and therefore does not require
adjudication by the Hon'ble Supreme Court or it may be
dismissed on the ground of delay. In such cases, even the
dismissal of Special Leave Petition with reasons will not be
a precedent. See Hemalatha Gargya vs. CIT 259 ITR 1
(SC).
[2] If however the Hon'ble Supreme Court
dismisses the Special Leave Petition without reasons, it will
not operate a binding precedent to other courts. The only
effect of such dismissal is that for that particular High Court
the decision has become final. However, the dismissal of
the appeal by the Hon'ble Supreme Court even without
reasons will be a binding precedent upholding High Court’s
decision unless by a speaking order either expressly or by
necessary implication it dismisses the appeal on grounds
similar to those mentioned earlier, as regards dismissal of
59
SLP.
[3] In V. M. Salgaokar vs. CIT (2000) 243 ITR
383, the Hon'ble Supreme Court held that when an appeal
is dismissed by the Hon'ble Supreme Court by a non
speaking order, the order of the High Court or Tribunal from
which the appeal arose merges with that of the Hon'ble
Supreme Court.
[4] When the Hon'ble Supreme Court dismisses
special leave petition with reasons, it might be taken as the
affirmation of the High Court’s views on merits of the case.
There is no reason to dilute the binding nature of
precedents in such cases. Leading case on the subject of
result of dismissal of SLP is the case of : Kunhayammed
vs State of Kerala (AIR 2000 SC 2587)
Que. 10 : Whether sub-section (2) of section 145 of the
Negotiable Instruments Act, 1881, confers an unfettered
right on the accused to give oral examination-in-chief
of a person giving evidence on affidavit, even in
respect of the facts stated therein and that if such a
right is exercised, whether the court is obliged to
examine such a person in spite of the mandate of
section 145(1) of the Act?
Discussion in Open House: It has been discussed in the
open house that, So, when the law provides specific
procedure as to how the evidence has to be recorded, the
same has to be followed as it is and it is only because
60
generally in exceptional cases, the accused is examined
and it is the legislative intent that the examination of
accused has to be only after he/she enters the witness box.
Therefore, the trial court without looking to the said aspect
cannot permitted the accused to file an affidavit in lieu of
chief examination. Though a complainant has an authority
to file affidavit in lieu of chief examination, this right given to
the complainant cannot be extended to an accused.
From the brief discussion above about the legal value the
Hon'ble Smt. M.S. Jawalkar, The Principal District &
Sessions Judge,Parbhani sum up the said question that it
permits the complainant to tender evidence by way of
affidavit and that of his/her witnesses and the accused
cannot be allowed to tender his evidence on affidavit as
provided under section 145 of N I Act, as observed by the
Hon'ble Apex Court in the case of M/S Mandvi Co- Op
Bank Ltd Vs. Nimesh B Thakore (AIR 2010 SC 1402).
Q.No. 11 : How to prove the documents referred in
affidavit of examination-in-chief filed by the witness
in the cases filed under section 138 N I Act?
Execution of the document has to be proved by the
evidence of those persons, who can assert for the truth of
the fact in issue, but where document produced is admitted
by the signatory thereto and then marked as an exhibit, no
further evidence to prove the writing and its execution
survives. Admission of document means admission of facts
contained in the document.
The Hon'ble Bombay High Court has held in case of
61
Bama Kathari Patil V. Rohidas Arjun Madhavi [2004 (2)
Mh.L.J.752] that a document is required to be proved in
accordance with the provisions of the Evidence Act and
merely for administrative convenience of locating or
identifying the document, it is given anexhibit number by the
Court. Exhibiting a document has nothing to do with its
proof though as a matter of convenience only the proved
document is exhibited. If a document is duly proved, but
mistakenly or otherwise is not exhibited, still it can be read
in evidence.
R.V.E. Venkatachala Gounder Vs. Arulmigu
Viswesaraswami and V.P. Temple and Anr. (AIR 2003 SC
4548) the Hon'ble Apex Court ruled as under:
"The objections as to admissibility of documents in evidence
may be classified into two classes: (i) an objection that the
document which is sought to be proved is itself inadmissible
in evidence; and (ii) where the objection does not dispute
the admissibility of the document in evidence but is directed
towards the mode of proof alleging the same to be irregular
or insufficient. In the first case, merely because a document
has been marked as "an exhibit", an objection as to its
admissibility is not excluded and is available to to be raised
even at a later stage or even in appeal or revision. In the
latter case, the objection should be taken when the
evidence is tendered and once the document has been
admitted in evidence and marked as an exhibit, the
objection that it should not have been admitted in evidence
or that the mode adopted for proving the document is
irregular cannot be allowed to be raised at any stage
62
subsequent to the marking of the document as an exhibit.
The latter proposition is a rule of fair play. The crucial test is
whether an objection, if taken at the appropriate point of
time, would have enable the party tendering the evidence to
cure the defect and resort to such mode of proof as would
be regular."
Que. 12 : Whether the Magistrate after having found
sufficient ground for proceeding in case and issued
summons under Section 204 Cr.P.C. has the jurisdiction
to recall or review the order by exercising its power
under Section 201 Cr.P.C.?
Ans :- No. Once the Magistrate taking cognizance of an
offence forms his opinion that there is sufficient ground for
proceeding and issues summons under Section 204
Cr.P.C., there is no question of going back following the
procedure under Section 201 Cr.P.C. In absence of any
power of review or recall the order of issuance of summons,
the Magistrate cannot recall the summon in exercise of
power under Section 201 Cr.P.C. See Devendra Kishanlal
Dagalia Vs. Dwarkesh Diamonds Private Limited
( MANU/SC/1213/2013).
Que. 13 : Where the offence consists of several acts
done in different local areas, it may be inquired into or
tried by a Court having jurisdiction over any of such
local areas?
Jurisdiction of court to try a criminal case is governed by the
provisions of Cr.P.C. and not on common law principle. A
court deserves a jurisdiction only when the cause of action
63
arose within his territorial jurisdiction. The same cannot be
conferred by any act or omission or commission on part of
accused. Place where an offence had been committed play
an important role to determine jurisdiction of Court. See--
Harman Electronics Private Ltd. v. National Panasonic
India Pvt. Ltd. (MANU/SC/8405/2008).
Que. 14 : Whether pending cases under section 138 of
Negotiable Instruments Act can be transferred as per
Ordinance?
The provisions of The Negotiable Instruments
(Amendment) Second Ordinance, 2015 lay down as to
where (i.e., in which court) a cheque dishonour case is
required to be filed and also about the transfer of the
existing cheque bounce cases registered under Section 138
of the Negotiable Instruments Act, 1881. The provisions
under the new Ordinance are the same as under the first
such ordinance issued on 15th June 2015.
“142A. (1) Notwithstanding anything contained in the Code
of Criminal Procedure, 1973 or any judgment, decree, order
or directionsof any court, all cases transferred to the court
having jurisdiction under sub-section (2) of section 142, as
amended by the Negotiable Instruments (Amendment)
ordinance, 2015, shall be deemed to have been transferred
under this Ordinance, as if that sub-section had been in
force at all material times.
64
Que. 15 : Whether Sub-section (2) of Section 145
conferred an unfettered right on the complainant and
the accused to apply to the court seeking direction to
give oral examination-in-chief of a person giving
evidence on affidavit?
No. Right of accused under sub-section (2) of Section 145,
was only to cross-examine a person giving evidence on
affidavit in respect of facts contained therein. It did not
confer right on the accused to seek direction to any person,
giving evidence on affidavit, to step into witness box and
give oral examination-in-chief even in respect of matters
which have been stated on affidavit. As held in the case of
Peacock Industries Ltd., vs. Budhrani Finance Ltd. and
State of Maharashtra and Ors. etc.
(MANU/MH/0391/2006)
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