Tuesday, November 30, 2010

ITR NOT gospel for deciding maintenance. others factors to be considered for deciding other than ITR of husband

1                                           WP.569/2010
mnm
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION  NO.569 OF 2010
Amit Rasiklal Shah ...Petitioner
Vs.
Sonal Amit Shah  ...Respondent
Ms. T. F. Irani for the Petitioner
Mr. Rakesh K. Agarwal for Respondent
CORAM : SMT. ROSHAN DALVI, J.
                     DATED  : 18TH NOVEMBER, 2010
ORAL ORDER :
1. The Petitioner husband has challenged the order of the Family
Court, Mumbai dated 4th
November 2009 granting interim
maintenance of Rs.20,000/­ to his wife and Rs.10,000/­ each
to his sons in the Petition filed by the wife.
2. The Petitioner’s income is required to be seen to adjudicate
whether the impugned order grants a reasonable amount of
maintenance or whether the maintenance is excessive
considering the Petitioner’s station in life.2                                           WP.569/2010
3. The Respondent wife has not been shown to be having any
separate means of livelihood.  The two children are aged about
12 and 10 years.
4. The Petitioner has produced income tax returns for 3 years. He
contends that net taxable income is the only numerical figure
from the income tax returns must be seen by the Court based
upon which the maintenance for the wife and children must be
granted.  The contention is wholly incorrect.  It would be
absurd to consider the net income of an assessee who has
various sources of income some of which may not be liable to
tax at all.
5. Consequently, the computation of taxable income of the
Petitioner’s individual returns must be seen in its entirety and
has to be read as a whole.  The Petitioner is admittedly in
business.  Hence the business returns of the partnership firm or
sole proprietary concern along with the trading and profit and
loss account as well as the balance sheet of the firm must be
seen to appreciate what income the firm or the individual
would have at least approximately earned and what income is
ultimately shown as the net taxable income.  This is aside from
the fact that it is settled position in law that the tax returns of
a party shown by the party in Court, specially in matrimonial
proceedings, cannot be taken for the gospel.3                                           WP.569/2010
6. With that it will be interesting and appropriate to decipher the
Petitioner’s income from the individual returns shown by
himself.
7. The Petitioner was married in 1997.  The parties have fallen off
in April 2006.  The wife lives with her two sons in her parental
home.
8. The  Petitioner’s income tax returns is for the year 2006­2007.
It makes interesting reading.  The income from his business
and profession is only Rs.9695/­. The long term capital gains
of the Petitioner are Rs.3.62 lakhs. Income from other sources
is Rs. 1 lakh and the gross total income is Rs.4.72 lakhs.  After
deductions under Section 80 C of the Income Tax Act of Rs.1
lakh the total income is shown to be Rs.3.72 lakhs.  The
computation of his total income shows, not profit from his
business, but as salary of Rs.1 lakh with the aforesaid capital
gains.
9. For the next assessment year 2007­2008 the Petitioner has
shown the share of profit from his firm of Vintex Optics as well
as Mesha International.  These are petty figures  of Rs.25000/­
and Rs.9000/­ each. The Petitioner has shown the
remuneration from Vintex Optics which exceeds his share of
profit. It is approximately Rs.57000/­ less interest thereon of 4                                           WP.569/2010
Rs.27000/­.  The Petitioner has shown commission received
from another firm.  It is stated by him in Court that he had
introduced a client from Andheri to his brother in the said firm
for which he received a commission of Rs.90000/­.  The
Petitioner has further shown short term as well as long term
capital gains. These are on shares of listed companies.  The
dividend income from shares, which is exempt from tax is in a
sum of Rs.37,688/­ as also with interest on RBI bonds and PPF
interest.  The long term capital gains is to the extent of Rs.16.5
lakhs and short term profit of shares treated separately is also
shown deducted from the income of the Petitioner on certain
shares.  Income of the two minor sons of the Petitioner is also
shown in his own return.  The LIC premium which is deducted
is of Rs.1lakh and the Petitioner who is present in Court
concedes that the LIC policies are more than Rs.20 lakhs. 
10.The returns for the year 2008­2009 also shows the share of
profit from Mesha  International, but not from Vintex Optics. It
shows a loss from this proprietary concern. These returns also
show the dividend, PPF, Insurance etc. as in the earlier year.
The capital account of the Petitioner which is shown only in
the last year’s income tax returns shows gift of Rs.5 lakhs and
Rs.2.25 lakhs amongst others given to his father and his
brothers. The income from the partnership firm of Nisha
International is not shown. Instead the assets in the balance
sheet shows a certain flat premises in Goregaon.  The 5                                           WP.569/2010
investments in shares, insurance, mutual funds recurring
deposits, PPF etc. are also shown aggregating to about Rs.55
lakhs including the investment in shares of Rs.30 lakhs.  Loans
and advances are shown against all the family members except
perhaps his wife.  The cash and bank balances are shown to
aggregate to approximately Rs.3 lakhs.
11.These returns themselves show the worth of the Petitioner.
They do not show a person who earns an amount of Rs.
20000/­ per month as is alleged by the Petitioner.  A person
who earns that income, if that be his only income, would not
be able to invest in shares of listed companies, insurance, PPF
account, government bonds, flat, shop etc.  Though these
assets are not liable to distribution or division whilst
considering the interim maintenance, these are required to be
seen and appreciated by the court for considering the income
earned from such assets to appreciate his standing in society.
12.It is argued on behalf of wife that the Petitioner’s total
earnings including earnings as a partner or sole proprietor in
the aforesaid firms and as a Director in Global Parasol
Reinsurance  Bonds besides having shares, bank accounts and
cash etc.  It is also argued that the Petitioner owns 5 cars and
has bank accounts in IDBI Bank, Axis Bank, Indian Overseas
Bank and HDFC Bank.  The Petitioner also has credit card of
Citibank. 6                                           WP.569/2010
13.The Advocate on behalf of wife drew my specific attention to
the income tax returns of the Petitioner for the assessment year
2007­2008 showing the current year’s income remaining after
set off of the losses of earlier years including salary, business
speculation, short term capital gain etc., to be Rs.3.65 lakhs.
The total exempted income including the long term capital
gain against security transactions is shown to be Rs.17.5 lakhs.
The learned Judge has considered the aforesaid amounts to
determine the Petitioner’s standard of living.  That has been
correctly considered. Though the Petitioner may be entitled to
set off the losses and though the Petitioner may be legally
exempt from tax for the purpose of payment of income or
wealth tax, the fact that the Petitioner has earned those
amounts cannot be sidelined. It would have to be considered
reading the taxation returns as a whole. Considering these
returns itself the interim maintenance amount would be
calculated.  This would leave out the immovable properties, if
any, owned by the Petitioner and the Bank accounts which are
not produced before this Court. Upon seeing these returns
maintenance of Rs.20000/­ for the wife and Rs.10000/­ each
for the children is not only reasonable, but in order.  The order
of the learned Family Court Judge is not required to interfered
with.7                                           WP.569/2010
14.The Writ Petition is dismissed.
15.The Civil Application No.2705/2010  also stands disposed off
as infructuous.
  (SMT. ROSHAN DALVI, J.)

http://bombayhighcourt.nic.in/data/judgements/2010/CWP15710.pdf

***********

SECOND JUDGMENT

                                                                           1                                        WP.4641/2010
mnm
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
APPELLATE CIVIL JURISDICTION
WRIT PETITION NO.4641 OF 2010
Shirish H. Garg ...Petitioner
(Orig. Respondent)
Vs.
Nidhi S. Garg ...Respondent
(Orig. Applicant)
Mr. R.S. Apte i/b. Mr. V.P. Patankar, Advocate for Petitioner
Mr. A.M. Vernekar, Advocate for Respondent
CORAM : SMT. ROSHAN DALVI, J.
                     DATED  : 16TH NOVEMBER, 2010
ORAL ORDER:
1. This Petition is filed by the husband challenging the order of
maintenance passed by the Family Court, Bandra, Mumbai on
1st
April 2010 for the interim maintenance under Section 24 of
the Hindu Marriage Act of his wife.
2. The husband is in business.  The wife has no independent
source of income.  The husband runs three family businesses.
These are shown on the Website of the husband as well as the
Company.  The husband owns a car and has purchased a share
in a property which initially belonged to his joint family for his
residence.  The parties have been engaged and married in a                                                                            2                                        WP.4641/2010
five star hotel.  The husband’s bank account shows large
deposits and withdrawals. He pays separate electricity bills of
large amounts of his residential premises. The husband also
has Life Insurance Policy.  He has several employees whose
provident fund is paid and an immovable property for which
property taxes and municipal taxes are paid.  These are
reflected in the supporting documents produced by the wife
being his bank pass book, the employees provident fund book,
the LIC Policy, the property tax receipt, municipal tax receipt,
Website details etc.
3. The husband has not disputed the separate 3 or 4 businesses of
the family in which he has a share.  He has also not disputed
the Website of the business concerns.  He has instead sought to
show his income under the income tax returns filed by him as
also the company.
4. The determination of maintenance is dependent upon
consideration of the Petitioner’s own income and the income of
the Respondent under Section 24 of the Hindu Marriage Act
which runs thus:
“24. Maintenance pendente lite and expenses of 
proceedings – Where in any proceeding under this Act it 
appears to the Court that either the wife or the husband, as 
the case may be, has no independent income sufficient for her 
or his support and the necessary expenses of the proceeding, it 
may, on the application of the wife or the husband, order the 
respondent to pay to the petitioner the expenses of the                                                                             3                                        WP.4641/2010
proceeding, and monthly, during the proceeding such sum as, 
having regard to the petitioner’s own income and the income 
of the respondent, it may seem to the court to be reasonable”.
5. Upon considering the interim application for maintenance the
wife is given a share in the income of the husband and not his
properties.  The husband, therefore, contends that only his
income, as reflected in the individual income tax returns filed
by him as also the returns of the businesses run by him, can be
seen by this Court and the Family Court.
6. The Family Court has considered the aforesaid businesses, the
expenses for purchase of movable and immovable properties
the debit and credit entries in his bank account and the
Website details of the Petitioner himself and his businesses to
ascertain the approximate income of the Petitioner.
7. The ascertainment of the income has to be done judiciously
and sensibly. It cannot be done arbitrarily or only
arithmetically.  The consideration of the income contemplated
under the Section does not mean that only the numerical
figures shown in the income tax returns of a party can be taken
for the gospel.  The husband contends, from his income tax
returns which are shown to Court, that he earns approximately
Rs.2 lakhs a year.  This would constitute an income of
approximately Rs.16,000/­ per month.  In this income the
husband would not be expected to have the bank account that                                                                            4                                        WP.4641/2010
is shown to Court, the car which he owns, the share in the joint
family property that he has purchased, the exports that he has
made, the expenses for the electricity that he has paid or the
property taxes that he has incurred or the employees whom he
supports in several firms.
8. Details of four firms are provided by the wife and considered
by the learned trial Judge.  The biodata of the husband as well
as Website details of the firms show the goodwill of the firm
acquired since its establishment in 1963.  This is reflected in
the name of the firms and the products that they produce.  The
Website of the firm boasts of its leadership in glass industries
with regard to the quality of the products and its exports.  It
shows export market in various foreign countries on four
continents. It is shown to have 51 to 100 employees, 1000 to
3000 sq. mtrs. of factory size, with various production lines,
estimated annual sales below one Millon  US Dollars. These are
export oriented firms manufacturing products of ISO
certification. They are shown to be pioneers in glass industry.
The firms carry businesses in separate immovable properties
shown as head office as well as branch office at Goregaon as
well as Kandivali, Mumbai.   The Website shows the husband to
be the contact person in the firms.
9. The individual Website of the husband shows his position of
responsibility in expanding the family businesses which has                                                                            5                                        WP.4641/2010
proved to be a “boon” for the four companies mentioned
therein. 
10.His residential address is shown in Dawawala   Bungalow of
800 sq. yds. The husband claims that that is the joint family
property. It belongs to four brothers including the husband’s
father.  The husband has purchased ¼ share of one of the other
brother of his father.  That share is reflected in his income tax
returns.  That share must be taken to be at least approximately
of 2000 sq. ft in area being ¼ of the total area of the bungalow.
The husband has valued it at little over Rs.3 lakhs in his
income tax returns which valuation would be impossible to
accept, given the current market rates of real estate. 
11.The parties got engaged and married in Hotel Sea Princess,
Juhu besides having other related social wedding ceremonies.
This fact is reflected in the invitation cards produced by the
wife and not denied by the husband.
12.The bank account statement of the Indian Overseas Bank
shows various debit and credit entries of thousands and even
lakhs of rupees which have remained unexplained.  Mr.
Vernekar on behalf of the wife drew my specific attention to
these entries which belie the net income shown to have been
earned by the husband as reflected in his income tax returns
completely.  e.g., in quarter between April 2007 to June 2007                                                                            6                                        WP.4641/2010
about Rs. 8 lakhs have been deposited into his account and are
soon thereafter withdrawn.  It appears essentially for  travel
purpose as reflected from the debit entries in favour of the
Kuoni Travels.  The credit entries are seen to be from other
saving accounts, the numbers of which are shown against those
entries.  This shows that the husband has at least four other
accounts from which amounts have been transferred to the
only bank account which is on record. There is also a LIC
policy of the husband of Rs. 4 lakhs.
13.These supporting documents, therefore, falsify the tax returns
produced by the husband.  Mr. Apte on behalf of the husband
went through the income tax returns.  The arithmetical entries
by themselves do not show the true income of the husband and
must be rejected.
14.Mr. Vernekar on behalf of the wife rightly argued that if the
husband earns approximately Rs.16,000/­per month he would
not be expected to have an LIC Policy of Rs. 4 lakhs, pay the
electricity bills of a few thousands of rupees each month,
purchase 1/4th
share of his uncle in the joint family property,
own a car and maintain the bank account showing large debit
and credit entries.
15.The learned Judge has, therefore, correctly considered how the
income sought to be shown by the Petitioner cannot be                                                                            7                                        WP.4641/2010
accepted in view of the movable and immovable properties
owned, possessed and maintained by the Petitioner.  The
reasoning of the learned Judge is correct.  The income of a
party before the Court has to be evaluated from the evidence
produced by the parties as a whole.  It should not be a figure
which would insult the intelligence of the Court as being
wholly contrary to commonsense.  Hence this must include
consideration of the properties of the husband, movable and
immovable, which would reflect his income.  It may be
mentioned that the properties of the husband has to be
considered to that end though the wife is not given a share in
those properties at the interim stage.
16.The impugned order has considered the earlier order passed in
favour of the wife by the learned Magistrate’s Court granting
maintenance under the Domestic Violence Act.  The impugned
order has granted further maintenance taking into account the
earlier maintenance granted.
17.The husband failed to pay the maintenance altogether until he
was directed to deposit the arrears in this Court. 
18.It may be mentioned that upon strict evaluation of evidence
produced by the parties at the final hearing of the Petition
when the husband would have to stand trial that even more
evidence of his hitherto concealed income may surface.  At the                                                                            8                                        WP.4641/2010
interim stage appreciation of the evidence on record can only
allow the Court to arrive at a reasonable figure of the income
which the husband is seen to be earning when the entire
income is not shown to Court and in fact sought to be
suppressed, specially in case of businessmen such as the
husband in this case.  The extent of the income reasoned by
the learned Judge at the interim stage based upon the intrinsic
evidence in this case is most reasonable and proper.  Mr. Apte’s
contention that it is based on conjunctures must, therefore, be
rejected. 
19.Consequently, the impugned order is correct and the challenge
cannot be maintained.
20.Hence the order:
1. The Writ Petition is dismissed.
2. Wife shall be entitled to withdraw the amount of arrears
deposited by the husband in this Court.
3. The husband shall continue to pay the maintenance
pending the Petition as directed in the impugned order.
  (SMT. ROSHAN DALVI, J.)

 

 

http://bombayhighcourt.nic.in/data/judgements/2010/CWP1407010.pdf

Sunday, November 28, 2010

Del HC – False implication of husband’s relatives in 498a is ground for divorce (cruelty) to husband

MAT APP No. 98/2010                                                                                     

IN THE HIGH COURT OF DELHI AT NEW DELHI          MAT APP No. 98/2010

Judgment delivered on: 19.11.2010

Smt. Nitu Aggarwal              ..... Appellant
Through:  Mr.Rajiv Shukla, Adv.

        Versus

Sh.Gireesh Gupta              ..... Respondent
        Through:  Mr.Gyan Prakash, Adv.

CORAM:  HON'BLE MR. JUSTICE KAILASH GAMBHIR,


1.  Whether the Reporters of local papers may  be allowed to see the judgment?                      Yes  
2.  To be referred to Reporter or not?      Yes
3.  Whether the judgment should be reported  in the Digest?                     Yes

KAILASH GAMBHIR, J. Oral:

1. By this appeal filed under Section 28 of the Hindu Marriage Act, 1955 the appellant seeks to challenge MAT APP No. 98/2010 Page 1 of 11 the judgment and decree dated 27.4.2010, passed by the learned Additional District Judge, Delhi, whereby a decree of judicial separation was passed.

2. Brief facts of the case relevant for deciding the present appeal are that the parties got married on 5.11.03 at Noida according to Hindu rites and ceremonies and a female child was born out of wedlock on 14.9.04. The matrimonial relations between the parties were stained right from the very beginning of their married life and distressed by the behaviour of the appellant, the respondent filed a petition under section 10 of the Hindu Marriage Act, 1955 for a decree of judicial separation on the ground of cruelty which vide judgment dated 27.4.10 was granted. Feeling aggrieved with the same, the appellant has filed the present appeal.

3. Mr. Rajiv Shukla, counsel for the appellant submits that the learned trial court has wrongly assumed that the appellant had consumed some poisonous substance with a view to commit suicide. The contention of the counsel for the appellant is that the respondent used to compel and force the appellant to consume certain medicines under the pretext that the same were good for her health and for the child in the womb. Counsel further submits that the respondent also failed to prove on record that an attempt of suicide by the appellant was made with a view to coerce the respondent to accede to any of her demands and in the absence of any such assertion on the part of the respondent, no logic or rationale behind the alleged attempt of suicide by the appellant could be established by the respondent. Explaining the contradiction on the part of the appellant in the FIR lodged by her under Section 498A/406/34 IPC, counsel submits that even if the appellant in the said FIR took a stand that the respondent had given her something to drink, the same will not make any difference vis-a-vis her stand in the matrimonial proceedings where she had stated that the respondent used to administer some medicines. Counsel thus submits that there was a minor variation in the stand of the appellant which would not amount to any kind of self contradiction on her part. Counsel thus states that there is clear infirmity and perversity in the findings of the learned trial court on this aspect and the same should be set aside.

4. Assailing the impugned judgment on another ground, counsel submits that the learned trial court has wrongly observed that the implication of the relatives of the respondent is in itself an act of cruelty against the respondent. The contention of the counsel for the appellant is that the mere fact that the said relatives were not charge sheeted by the police would not show that the allegations leveled by the appellant against the relatives of the respondent were false. The contention of the counsel is that at the stage of framing of charges, it would be for the concerned Criminal Court to see whether based on the allegations leveled by the appellant in her criminal complaint such relatives are required to be proceeded against or not.

5. Counsel for the respondent on the other hand refutes the submissions made by the counsel for the  appellant and submits that the present appeal deserves to be dismissed at the admission stage itself as the appellant has failed to point out any material illegality or perversity in the order passed by the learned trial court.

6. I have heard learned counsel for the parties.

7. The petition under Section 10 of the Hindu Marriage Act was preferred by the respondent husband so as to seek a decree of judicial separation from the appellant on the ground of cruelty. The marriage between the parties was solemnized according to Hindu rites and ceremonies on 5.11.2003 and both the parties are well educated academically. One of the allegations leveled by the respondent against the appellant is that the appellant had consumed some poisonous drink on 18.8.2004 and her condition became very critical in the morning of 18.8.2004 and she was immediately taken to Kailash Hospital, Noida and it is only on account of the timely action taken by the respondent and his parents that life of the appellant and the unborn child could be saved. It is an admitted case of  the parties that subsequent to the filing of the said petition by the respondent husband the appellant wife got registered one criminal complaint under Section 498A/406/34 IPC vide FIR No. 498/2005 not only against the respondent but his parents and some other relatives as well. Some of the relatives implicated by the appellant in the said complaint case were the residents of far off places like Saharanpur and Baroda. It is also an admitted case of the parties that the relatives of the respondent were not charge- sheeted by the police as no incriminating material was found against them during the course of investigation. The respondent has taken this false implication of his relatives on the part of the appellant as a ground of cruelty. Learned trial court has also granted decree of judicial separation in favour of the respondent and against the appellant taking the said two grounds clearly establishing the cruel conduct of the appellant towards the respondent. Before the learned trial court as well as before this court the appellant has failed to disclose as to what kind of medicines were being administered by the respondent to her during the stage of  pregnancy on the pretext of the same being good for her health and that of the unborn child. It is incomprehensible to accept the argument that the appellant who is a well qualified lady having a degree of Chartered Accountancy and Company Secretary would take the medicines without even knowing what kind of medicines she was taking. The appellant has also clearly taken a contradictory stand in her criminal complaint, wherein she stated that she was given something to drink by the respondent and his parents on the pretext that it is good for her pregnancy. The appellant has also not denied the fact that she was admitted to Kailash Hospital in the morning of 18.8.2004 where she was treated after having consumed some poisonous substance. It is also not in dispute that the appellant did not lodge any police complaint against the respondent or his parents complaining about administration of some poisonous medicines by her husband or his parents. The learned trial court has duly taken into consideration all these circumstances into account and thus has arrived at a finding that such an attempt by the appellant to commit suicide is an act of cruelty on her part upon her husband.

8. The concept of cruelty is of wide amplitude and has not been defined in the act. The Apex Court through various judicial pronouncements has explained the concept and scope of cruelty. It would be useful here to refer to the judgment of the Apex Court in the case of A. Jayachandra vs. Aneel Kaur AIR 2005 SC 534 where it was held as under:

"12. To constitute cruelty, the conduct complained of should be "grave and weighty" so as to come to the conclusion that the petitioner spouse cannot be reasonably expected to live with the other spouse. It must be something more serious than "ordinary wear and tear of married life". The conduct, taking into consideration the circumstances and background has to be examined to reach the conclusion whether the conduct complained of amounts to cruelty in the matrimonial law. Conduct has to be considered, as noted above, in the background of several factors such as social status of parties, their education, physical and mental conditions, customs and traditions. It is difficult to lay down a precise definition or to give exhaustive description of the circumstances, which would constitute cruelty. It must be of the type as to satisfy the conscience of the Court that the relationship between the parties had deteriorated to such an extent due to the conduct of the other spouse that it would be impossible for them to live together without mental agony, torture or distress, to entitle the complaining spouse to secure divorce. Physical violence is not absolutely essential to constitute cruelty and a consistent course of conduct inflicting immeasurable mental agony and torture may well constitute cruelty within the meaning of Section 10 of the Act. Mental cruelty may consist of verbal abuses and insults by using filthy and abusive language leading to constant disturbance of mental peace of the other party.

13. The Court dealing with the petition for divorce on the ground of cruelty has to bear in mind that the problems before it are those of human beings and the psychological changes in a spouse's conduct have to be borne in mind before disposing of the petition for divorce. However, insignificant or trifling, such conduct may cause pain in the mind of another. But before the conduct can be called cruelty, it must touch a certain pitch of severity. It is for the Court to weigh the gravity. It has to be seen whether the conduct was such that no reasonable person would tolerate it. It has to be considered whether the complainant should be called upon to endure as a part of normal human life. Every matrimonial conduct, which may cause annoyance to the other, may not amount to cruelty. Mere trivial irritations, quarrels between spouses, which happen in day-to-day married life, may also not amount to cruelty. Cruelty in matrimonial life may be of unfounded variety, which can be subtle or brutal. It may be words, gestures or by mere silence, violent or non-violent."

Cruelty therefore is to be garnered taking the cumulative effect of all the factors into play. The parties are well educated and such an attempt to end her life by the appellant would certainly cause mental agony to the respondent. It would aggravate the case when the appellant tried to commit suicide in the state of pregnancy. A highly educated lady claiming that she was administered poisonous substance which she was unaware of does not help her case. No doubt in the petition the respondent did not give any specific reason or cause behind such suicidal attempt but it goes without saying that such an act even in the absence of any reason certainly would constitute an act of cruelty on the respondent husband.

9. Even on the second argument of the counsel for the appellant, this court does not find any merit in it. The complaint under Section 498A/406/34 IPC was lodged by the appellant during the pendency of the said petition filed by the respondent for judicial separation. In her complaint the appellant roped in various relatives of the respondent which include his uncle and aunt residing at Saharanpur and brother and sister in law residing at Baroda. The learned trial court is right in taking a view that false implication of relatives who were residing at far off places from the matrimonial home of the appellant and against whom there are no specific allegations of cruelty in itself is an act of cruelty by the appellant towards her husband. However, as these relatives were not charge-sheeted by the police the same would clearly show that the police did not find any incriminating material against these relatives during the investigation and this by itself is sufficient enough to show that the appellant had roped in and implicated all these relatives with vengeance to cause unnecessary harassment to them and such act certainly would cause cruelty to the husband with whom they are related. Implicating the relatives with a motive to harass the relatives, residing in different parts of the country, is nothing but a ruthless act of harassment. Therefore, the respondent husband has successfully proved cruelty on the part of the appellant on both the counts.

10. In the light of the above, this court does not find any infirmity or illegality in the findings arrived at by the learned trial court. There is no merit in the present appeal and the same is hereby dismissed at the stage of admission itself.

November 19, 2010 KAILASH GAMBHIR, J mg

http://lobis.nic.in/dhc/KG/judgement/26-11-2010/KG19112010MATA982010.pdf

http://www.indiankanoon.org/doc/477931/

Friday, November 19, 2010

Delhi HC orders contempt case against father of girl for resiling from mutual consent divorce agreement of daughter after extorting the agreed amount

The Delhi High Court has initiated contempt proceedings against the father of a Germany-based woman for backing out from a mutual consent divorce agreement in exchange of Rs 12 lakh. In March 2010, the woman had moved the Delhi High Court against her husband, charging him with domestic violence.

Her Delhi-based father filed a case of domestic violence and dowry demand against his bed-ridden daughter's husband.

Later, she agreed for a mutual-consent divorce for Rs 12 lakh.

Sunny and Sheila (names changed) married in 2002 in Delhi. During her stay in Germany, Sheila developed multiple sclerosis.

In 2008, she filed cases in Germany against her husband.

At present, the couple lives separately in Germany.

Prabhjit Jauhar, counsel for Sunny, in his petition said: "Sheila registered false complainants with the German court. Later German investigative authorities found that those complaints were false."

Jauhar told the court that Sheila was not summoned, as the German court noted she was suffering from an acute disease.

In March 2010, Sheila, through her father, informed the Delhi High Court's Mediation Conciliation Centre, that a divorce by mutual consent should be agreed upon for a sum of R12 lakh. She also gave her consent to quash the FIR against her husband.

However on November 1, Sheila's father said he was not willing to comply with the terms of agreement signed in March.

"It is a clear breach of undertaking given to the court and amounts to contempt," Jauhar submitted in court.

Justice GS Sistani said: "Respondent (father of the woman) has willfully violated the terms of settlement agreed upon. Issue notice to show cause, as to why contempt proceedings should be not initiated."

Sunny, in his petition, alleged that he has already deposited R12 lakh with the registry department of the High Court in March 2010.

The court has directed Sheila's father to be personally present in court on the next date of hearing.

http://www.hindustantimes.com/HC-orders-contempt-case-against-man/Article1-627757.aspx

Friday, November 12, 2010

Allahabad HC- Every person has a right to live healthy sexual life.Bond of marriage can not be repaired which has been extensively damaged by passage of long separation

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Court no. 1

Second Appeal No. 38 of 2005

Dr. Vinod Kumar Gupta

versus

Smt. Deepa Gupta

Hon'ble Rakesh Tiwari, J.

The case peremptorily listed today. List has been revised. Heard learned counsel for the appellant and perused the record. Sri A.K. Sharma, learned counsel for the respondent is not present. The appellant filed Original Suit No. 447 of 1995, Dr.Vinod Kumar Gupta versus Smt. Deepa Gupta, under Section 13 of Hindu Marriage Act for divorce against the respondent. The suit was decreed vide judgment and order dated 29.8.1998 passed by the Ist Additional Civil Judge (Senior Division), Muzaffarnagar.

Aggrieved by the judgment and order dated 29.8.1998 the respondent filed Civil Appeal No. 333 of 1998, Smt. Deepa Gupta versus Dr. Vinod Kumar Gupta before first lower appellate Court which was allowed vide judgment and order dated 25.10.2000.

It appears from the order-sheet dated 9.9.2009 that the Court had granted opportunity to the learned counsel for the parties as to whether there is any possibility of husband and wife stay and live together. Thereafter, the case was listed on 22.2.2010 when it was directed to be listed in the next cause list on the prayer of learned counsel for the parties. Since then, learned counsel for the respondent has not appeared before this Court. On 11.5.2010, learned counsel for the respondent was also not present and on 26.5.2010 he sought adjournment of the case on the ground of illness slip. Learned counsel for the appellant states that the matter may be decided as the adjournments sought are deliberate. The case has been directed to be listed peremptorily. Today also, learned counsel for the respondent is not present. It appears from the order sheet that continuously for the last 3 days the case is being adjourned at the behest of learned counsel for the respondent.

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The contention of learned counsel for the appellant is that the appellant is posted as Doctor in Madhya Pradesh. However, the wife is employed as teacher in Government Girls College, Kichha, Nainital, Uttarakhand.

It appears that husband and wife are not living together since 1993. The suit for divorce had been granted and the decree for divorce had been reversed in appeal.

Learned counsel for the appellant states that the wife is not ready to live with husband at his place of posting despite several attempts by him and his relatives. The judgment and decree of the first lower appellate Court is assailed on the ground that it has acted with material irregularity of law and jurisdiction in setting aside the judgment and decree of the trial Court without reversing the findings recorded by it on individual issues. He submits that the behaviour of the wife with the appellant amounts to cruelty and that the lower appellate court has committed an error in holding that her not living with the husband in the facts and circumstances of the case, did not amount to cruelty within the meaning of term as defined under Section 13(1)(1a) of the Hindu Marriage Act. It is stated that from the facts and circumstances of the case as available from the pleading and evidence on record it is established from conduct of the wife that marriage had broken irretrievably due to cruelty which was a valid ground for dissolution of marriage under the Act and that the decree for divorce ought to have been passed on basis of record as the husband and wife have been living separately for the last so many years as such the judgment of the lower appellate Court being against the evidence on record and misinterpretation of the provisions of law can not be sustained and is liable to be quashed.

In support of his submission, learned counsel for the appellant has relied upon the judgment rendered in AIR 2005,SC-3297, Durga Prasanna Tripathy versus Arundhati Tripathy in which it has been held that where the spouses had been living separately for almost 14 years and wife was not prepared to lead conjugal life with husband and in that backdrop an attempt was made by husband and his relatives in getting back wife to matrimonial home failed. It was found to be a fit case for decree of divorce on the ground desertion as record showed that there was no chances of reconciliation and was irretrievable breakdown of marriage. He has also placed reliance upon paragraphs 21 and 22 of the judgment rendered in (2002)(48) ALR-485, Praveen Mehta versus Inderjit Mehta wherein the Court considered the definition of 'cruelty' within the meaning of section 13(1)(1a) of the Act. It was held that mental cruelty is a state of mind. In this case also the court came to the conclusion that despite several attempts by relatives and well-wishers no conciliation between husband and wife was possible, The petition for the dissolution of the marriage was filed in the year 1996. In the mean time, so many years have elapsed since the spouses parted company as such it can reasonably be inferred that the marriage between the parties has broken down irretrievably without any fault on the part of the husband, hence the decree for divorce was not liable to be repaired.

He then submits that in the instant case the husband and wife are living separately since 1993. There is no plausible reason for the wife not to live with the husband, who is a Doctor in Madhya Pradesh and her insistence to leave service for living along with her at Nainital, Uttarakhand was unreasonable and amounts to desertion. The trial Court has rightly granted decree for divorce which has been reversed by the lower appellate court on irrelevant consideration.

After perusal of the judgment it is noted that the parties are not cohabiting together for almost 17 years. Since there has been a long period of continuous separation, it may fairly be concluded that in the facts and circumstances of this case that the matrimonial bond is beyond repair and the marriage has become a fiction as has been held by the Apex Court in (2007) 4 SCC-511, Samar Ghosh versus Jaya Ghosh. The Court in that case held that-

" The marriage becomes a fiction though supported by a legal tie. By refusing to sever that tie, the law in such cases does not serve the sanctity of marriage; on the contrary it shows scant regard for the feelings and emotions of the parties. In such like situations, it may lead to mental cruelty. In present case, trial Court had rightly concluded that the various instances in their matrimonial life, and led to grave mental cruelty to the appellant husband. Further, the High Court failed to take into consideration the most important aspect of the case that the parties had admittedly been living separately for more than 16-1/2 years. The entire substratum of marriage had already disappeared."

The law laid down by the Apex Court in the aforesaid cases squarely applies to the facts and circumstances of this case where the spouses have been living separately for a long long period of time. It appears that their bond of marriage can not be repaired which has been extensively damaged by passage of separation. The parties are in their mid's 40. The wife is not ready to cohabit and inspite repeated efforts made by him and their relatives. Every person has a right to live healthy sexual life; hence love and affection from his or her partner in the marriage which has completely vanished in the instant case. It appears that the lower appellate Court has lost sight of this important factor and the guide lines laid down by the Apex Court from time to time through their Lordships' judgments. The marriage in the instant case cannot continue. Ground realities have to be considered before allowing the parties to continue their relationship of married couple till they become too old to have any biological need. Parties are already in their med forty's and if a new lease to their life is to be granted then matter has to be settled now.

For all the reasons stated above, the second appeal is allowed and the judgment and order of the lower appellate court is set aside and that of the trial court is confirmed. No order as to costs. Dated 12.7.2010

CPP/-

 

http://www.indiankanoon.org/doc/395463/

Thursday, November 11, 2010

Bom HC- Permanent Alimony cancelled – court acknowledges Perjury by wife but lets her off

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

FAMILY COURT APPEAL NO. 116 OF 2002

WITH

FAMILY COURT APPEAL NO. 47 OF 2007.


Arun Kashinath Deshpande.... ..... .... Appellant.


V/s


Smt.Inumati Ramchandra Deo .... ..... .... Respondent.

Mr.Prasad Kulkarni i/by Mr.P.S.Dani, Adv. For the appellant.

Ms.Shilpa A. Joshi, Adv. For the respondent.


CORAM: A.P.DESHPANDE

AND

SMT. R.P. SONDURBALDOTA, JJ.

8th April, 2010.


ORAL JUDGMENT
: (Per Deshpande, J.)

Both these appeals question the legality and validity of the judgment and order passed by the Family Court and the parties being common the appeals are heard together and are being disposed of by this common judgment. The family court as well has disposed of P.A.No.77/01 and MA No.7/01 by common judgment.

Family Court Appeal No.116/02 is filed by the husband whereas Family Court Appeal No.47/07 is filed by the wife. Parties to these appeals would be referred to as the husband and wife.

2. Marriage between the parties took place on 27.9.1984. The husband filed petition for divorce against the respondent being PA No.431/90 in the family court at Pune on the ground of cruelty. Family court passed decree of divorce in favour of the husband on 5.8.91. While passing decree of divorce the family court granted permanent alimony to the wife at the rate of Rs.600/­ per month by exercising discretionary powers under section 25(1) of the Hindu Marriage Act, 1955. The wife thereafter filed PA No.764/1995 for enhancement of quantum of permanent alimony and the court vide its order dated 30.6.96 enhanced the amount of permanent alimony from Rs.600/­ per month to Rs.800/­ per month. At a later point of time the husband filed FA No.77/01 for cancellation of permanent alimony awarded to the wife in PA No.431/90 which was enhanced in PA No.764/95. The main ground on which the husband moved the petition for cancellation of permanent alimony was that the wife had suppressed her income and had obtained the order of permanent alimony by misrepresenting the court that she has no source of income. In Petition No.77/01 the husband has averred that the wife has been carrying on business since long. It is also claimed that she has a shop of her own wherein she is carrying on business. She also has STD booth in her name at Nashik and has also share in the properties situated at Nashik. On the said pleadings it was emphasized that as an order of permanent alimony was obtained by misrepresentation the order be cancelled. Besides filing the said petition for cancellation of permanent alimony the husband also filed MA No.7/01 requesting the court to take action against the wife by lodging a complaint for the offences under sections 193, 182, 196, 199, 200 and 201 of IPC, as the respondent wife had given false evidence before the court in earlier proceedings. The family court decreed FA No.77/01 and thereby cancelled the order of grant of permanent alimony from the date of filing of petition. The incidental relief claimed by the husband which is in the nature of direction for return of amount of maintenance paid by the husband to the wife came to be rejected. The court also rejected the MA No.7/01 for taking action against the respondent wife for leading false evidence before the Court. Dissatisfied by the judgment and order passed by the family court in refusing to issue direction to respondent wife to return the amount of maintenance paid earlier and aggrieved by refusal to take action against the respondent wife for having led false evidence before the court the husband has filed the FCA No.116/02 whereas the wife being aggrieved by the judgment and order passed by family court cancelling the permanent alimony has filed FCA No.47/07. It is relevant to note that the wife has filed the appeal as late as in the year 2007 whereas the appeal filed by the husband is of the year 2002. Thus the questions for determination which arises in these appeals are (i) as to whether the family court is justified in cancelling the order of grant of permanent alimony and in refusing to issue direction against the wife to return the amount of maintenance already received? (ii) Is the court justified in rejecting the request made by the husband to take action against the respondent wife for leading false evidence? The appellant husband has examined in all five witnesses out of which witness Abhijit Bhalchandra Dakwe is the key witness and his evidence has been considered by the trial court in great details. The said witness is examined with a view to establish the fact that the respondent wife carries on business in a shop located in front of Nigdi bus stop at Bombay Pune road. This witness has visited the shop and has seen the respondent wife working therein. He has also made some purchases from the shop and receipts are passed in acknowledgment of having received the amount towards the goods sold by the respondent wife. Besides the oral evidence of Abhijit recorded at Ex.66 other important documents are at Exs.37, 38 and 39. Ex.37 is an application made by the respondent wife to the Pimpri Chinchwad municipal corporation with view to seek allotment of shop admeasuring 20 x 25 sq. ft. The said application is stated to have been submitted by the respondent wife in the presence of witness Abhijit. A format is annexed to the application which is at Ex.38 and Ex.39 is an affidavit accompanying the application at Ex.37. All the three documents i.e. the application, format and the affidavit constitute a proposal submitted by the respondent wife with a view to obtain shop premises from the corporation. The wife had initially denied the execution of the said documents which not only bear the signature of the respondent wife but also a photograph of the respondent is affixed thereon. The said three documents which have bearing on the question involved in these appeals are written in the hand writing of the respondent wife.
As stated herein above though the respondent has denied the writing and the execution of these documents, she was thoroughly cross examined touching the said documents by the advocate for the appellant. From the answers given by the respondent wife to the questions put in searching cross examination by advocate for the husband it can be seen that she has tried to contend that she is not sure as to whether the writing and the signature on the said documents belong to her. The court on comparison of the signatures which could be said to be disputed signatures at Exs.37 to 39 with admitted signatures of the respondent wife has come to a definite conclusion that the writings so also the signature on Exs.37 to 39 are that of the respondent 4 wife. The family court has also obtained specimen of writing and signature of the respondent wife and after comparing the same with the admitted writing and signature has reached the definite conclusion that the said three documents are executed by the respondent wife herself. What is stated by the applicant in the application and the affidavit is that she is educated woman industrialist and has past experience of running an industry so also experience of service rendered prior in point of o time. Touching her income and the sources from which she is receiving the same it is categorically mentioned that she owns one Laxmi Store from which monthly income is Rs.1200 to 1500/­.
It is then stated that she owns a STD booth/general store at Nashik under the name of Vasundhara Enterprises from which she is earning income of Rs. 4000 to 5000. The business place is stated to be owned by her. It is also stated that from typing business she earns more than Rs. 2500/­.

Other particulars are also furnished by the respondent wife such as estimated initial capital to be invested in the premises proposed to be taken on lease from the Corporation and the expected income from the said business. If the statements made in the affidavit are taken to be true and correct then definitely the Respondent wife has suppressed material facts while obtaining an order of permanent alimony. Nondisclosure of relevant facts and suppression of material facts have induced the family court to award permanent alimony of Rs.600/­ on 5.8.91 so also enhancing to Rs.800/­ per month in the year 1995. The trial court being of the view that the respondent wife has deliberately suppressed her income and thus obtained an order from the court by misrepresentation has proceeded to cancel the grant of permanent  alimony with effect from the date of filing of the petition by the husband. We have perused the judgment and order passed by family court under section 25(2) of the act. We do not see any reason to interfere with the appreciation of evidence by the family court touching the income of the respondent wife.
The view taken is very much possible view. It does not call for any interference.

3. Learned counsel for the appellant husband has submitted that the family court ought to have issued necessary direction against the respondent wife to for return of the amount received by her towards maintenance. The amount received is trivial sum of Rs. 600/­ per month from the year 1991 to 1995 and thereafter to Rs. 800/­ from 1995 onwards. The respondent wife was neither granted nor has she received any huge amount which necessitates directing recovery of that amount, more so, having regard to the fact that the parties were husband and wife by relation. It is then submitted that the Court ought to have taken action against the respondent for having led false evidence. The trial court has taken a pragmatic view of the matter in not permitting scope of dispute being widened between the parties. There is no point in forcing the parties in further litigation that too of criminal nature. Though the wife has stated in the affidavit that she is earning a sum of Rs.4000 to 5000 per month by way of income it is hardly a substantial amount. In our considered view, the approach of the family court is just and reasonable. Hence no interference is called for. In the result both the appeals stand dismissed with no order as to costs. Needless to mention that interim order, if any, stands vacated.

8.4.2010.

http://bombayhighcourt.nic.in/data/judgements/2010/CFCA4185302.pdf

SC explains Double Jeopardy - Double jeopardy applies to same offence, not same facts

Bench: B S Reddy, S S Nijjar

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 782 OF 2007

Monica Bedi ...Appellant Versus

State of A.P. ...Respondent WITH

CRIMINAL APPEAL NO. 784 OF 2007

Shaik Abdul Sattar ...Appellant Versus

State of A.P. ...Respondent WITH

CRIMINAL APPEAL NO. 783 OF 2007

D. Gokari Saheb ...Appellant Versus

State of A.P. ...Respondent WITH

CRIMINAL APPEAL NO. 1357 OF 2007

Mohd. Yunis ...Appellant Versus

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State of A.P. ...Respondent JUDGMENT

B. Sudershan Reddy, J :

1. These criminal appeals which are to be disposed of by a common order are directed against the common judgment of the High Court whereunder the High Court confirmed the conviction of the appellants under Section 120-B, 419 and 420 IPC and other provisions including under Section 13 (1) (d) read with 13 (2) of the Prevention of Corruption Act. We shall later notice in detail the conviction and sentence as awarded by the courts below.

2. The Central Bureau of Investigation, SPE, Hyderabad, laid charge sheet against altogether 10 accused persons before the Special Judge for C.B.I. cases, Hyderabad in which Abu Salem Abdul Qayoom Ansari @ Abu Salem(A-1), Sameera Jumani w/o Abu Salem(A-2), Monica Bedi (A-3), 3

Chamundi Abdul Hameed (A-6) and Faizan Ahmed Sultan (A-10) were shown as absconders. The learned Special Judge took the charge sheet on file as C.C. No. 3 of 2005 and issued non-bailable warrants against A-1, A-2, A-3, A-6 and A-10. Case against A-1, A-2, A-6 and A-10 came to be separated and case proceeded against A-3, A-4, A-5, A-7, A- 8 and A-9.

3. The learned Special Judge upon consideration of the material made available framed the following charges against the accused persons:

i) for the offence under Section 120-B IPC against A-3 to A-5, A-7 to A-9;

ii) for the offence under Section 419 IPC against A-3; iii) for the offence under Section 419 r/w 109 IPC against A-4, A-5 and A-7 to A-9;

iv) for the offence under Section 468 IPC against A-5; v) for the offence under Section 420 IPC against A-8; vi) for the offence under Section 468 IPC against A-7; 4

vii) for the offence under Section 13 (1) (d) r/w 13(2) of the Prevention of Corruption Act against A-4, A-5, A-7 and A-8;

viii) for the offence under Section 12 of the Passports Act, 1967 against A-3;

ix) for the offence under Section 420 IPC against A-3; x) for the offence under Section 420 r/w 109 IPC against A-4, A-5, A-7 to A-9.

4. The prosecution in order to substantiate the charges examined altogether 38 witnesses and proved 79 documents. Exhibit D-1 to Exhibit D-4 were marked on behalf of the defence.

5. The learned trial judge upon appreciation of the evidence and material available on record found Monika Bedi (A-3 ) guilty of the offences punishable under Sections 120- B, 419 and 420 IPC but acquitted of the charge under Section 12 of the Passports Act, 1967; Shaik Abdul Sattar 5

(A-5) guilty of the offences under Sections 120-B, 419 r/w 109, 420 r/w 109, 468 IPC and Sections 13(1) (d) r/w 13 (2) of the Prevention of Corruption Act; Mohammed Yunis (A-7) guilty of the offence under Section 468 IPC and D. Gokari Saheb (A-8) guilty of the offences under Section 120B, 420, 419 r/w 109 IPC, 420 r/w 109 IPC and under Sections 13 (1) (d) r/w 13 (2) of the Prevention of Corruption Act. A-3 was accordingly sentenced to suffer rigorous imprisonment for three years and to pay a fine of Rs. 500/-, in default, to suffer simple imprisonment for one month for the offence under Section 120-B IPC; rigorous imprisonment for five years and to pay a fine of Rs. 1,000/- in default, to suffer simple imprisonment for one month for the offence under Section 420 IPC; rigorous imprisonment for three years and to pay a fine of Rs. 500/-, in default, to suffer simple imprisonment for one month and for the offence under Section 419 IPC; A-5 to suffer rigorous imprisonment for three years and to pay a fine of Rs. 500/-, in default, to suffer simple imprisonment for one month for 6

the offence under Section 120-B IPC; rigorous imprisonment for three years and to pay a fine of Rs. 500/-, in default, to suffer simple imprisonment for one month for the offence under Section 419 r/w 109 IPC; rigorous imprisonment for three years and to pay a fine of Rs. 500/-, in default, to suffer simple imprisonment for one month for the offence under Section 420 r/w 109 IPC; rigorous imprisonment for three years and to pay a fine of Rs. 500/-, in default, to suffer simple imprisonment for one month for the offence under Section 468 IPC, and rigorous imprisonment for one year and to pay a fine of Rs. 500/-, in default, to suffer simple imprisonment for one month for the offence under Sections 13 (1) (d) r/w 13 (2) of the Prevention of Corruption Act. A-7 to suffer rigorous imprisonment for three years and to pay a fine of Rs. 500/-, in default, to suffer simple imprisonment for one month for the offence under Section 468 IPC; A-8 to suffer rigorous imprisonment for three years and to pay a fine of Rs. 500/-, in default, to suffer simple imprisonment for one month for the offence 7

under Section 120-B IPC; rigorous imprisonment for three years and to pay a fine of Rs. 500/-, in default, to suffer simple imprisonment for one month for the offence under Section 419 r/w 109 IPC; rigorous imprisonment for three years and to pay a fine of Rs. 500/-, in default, to suffer simple imprisonment for one month for the offence under Section 420 r/w 109 IPC; rigorous imprisonment for three years and to pay a fine of Rs. 500/-, in default, to suffer simple imprisonment for one month for the offence under Section 420 IPC and rigorous imprisonment for one year and to pay a fine of Rs. 500/-, in default, to suffer simple imprisonment for one month for the offence under Sections 13 (1) (d) r/w 13 (2) of the Prevention of Corruption Act. All the substantive sentences were directed to run concurrently.

6. On appeal the High Court of Andhra Pradesh upon re- appreciation of evidence available on record confirmed the conviction of A-3 for the offences punishable under Sections 120-B, 419 and 420 IPC but reduced the sentence from three years rigorous imprisonment to two years rigorous 8

imprisonment for the offence punishable under Section 120B IPC, from five years rigorous imprisonment to three years rigorous imprisonment for the offence punishable under Section 420 IPC and from three years rigorous imprisonment to two years rigorous imprisonment for the offence punishable under Section 419 IPC while maintaining the fine imposed by the trial court. The High Court also confirmed the conviction of A-5 under each count but reduced the quantum of imprisonment from three years to one year for offences under each count under Sections 120- B, 419 r/w 109, 420 r/w 109, 468 IPC. However, his conviction and sentence imposed for the offences punishable under Section 13 (1) (d) read with 13 (2) of the Prevention of Corruption Act was confirmed. That so far as A-7 is concerned the High Court while partly allowing the appeal modified the conviction from Section 468 IPC to that of one under Section 465 IPC and accordingly sentenced to suffer rigorous imprisonment for six months and to pay a fine of Rs. 500/-, in default, to suffer simple imprisonment for three 9

months. That so far as A-8 is concerned the High Court confirmed his conviction under all counts but reduced the quantum of imprisonment from three years to one year for offences under each count under Section 120-B, 420, 419 r/w 109, 420 r/w 109, 468 IPC. However, his conviction and sentence imposed for the offences punishable under Section 13(1) (d) r/w 13 (2) of the Prevention of Corruption Act was confirmed. Hence, these appeals.

Case of Prosecution:

7. In order to consider as to whether the High Court committed any error in convicting and sentencing the appellants as noted herein above, it may be just and necessary to briefly notice the case of the prosecution. The allegation against Accused No. 3 (appellant in Criminal Appeal No. 782/2007) is that she obtained a second passport in the assumed name of Sana Malik Kamal from the Regional Passport Office, Secunderabad by submitting false documents like residence certificate, educational certificate 10

with the help of A-4 to A-9. She used the passport to travel Lisbon, Portugal. The owner of M/s. Faizan Enterprises, Mumbai (A-10) is involved in the business of recruiting people for jobs in foreign countries. He gave 10 passport size photographs of A-1 to A-3 and fake names and documents to A-9 to secure passports falsely showing them as residents of Kurnool in the State of Andhra Pradesh. A-9 has relatives in Kurnool. He visited Kurnool in the month of March, 2001 and entrusted the work of securing passports of A-1 to A-3, to A-6 an unauthorized passport agent. At the instance of A-6, A-7 Mohammed Yunis, Mandal Revenue Inspector of Mandal Revenue Office, Kurnool issued a false residential certificates in the assumed names intended for the benefit of A-1 to A-3. A-6 procured fake transfer certificates purported to have been issued by the Headmaster, Zila Parishad High Court, Peddapadu, Kurnool District in the name of Ramil Kamil Malik and two fake memorandum of marks sheets in the names of Neha Asif Jafari and Sana Malik, purported to have been issued by the 11

Headmaster, Higher Elementary School, Kurnool, as a proof in support of date of birth. One Abdul Gaffar (PW-1) filled up three passport applications of A-1 to A-3 at the instance of A-6 and they were accordingly submitted in the Regional Passport Office, Secunderabad. The authorities accordingly sent the particulars mentioned in the forms to the office of Superintendent of Police, Kurnool which were received in the office on 16.5.2001 vide exhibit P-28 covering letter. A-5 (appellant in Criminal Appeal No. 784/07) at the relevant time was working as Writer-Head Constable in special branch. He submitted fake verification reports along with statements of six persons in support of character and conduct of A-1 to A-3 by portraying them as if they were the neighbours of A-1 to A-3. On receipt of reports, A-4 despatched them to Regional Passport Office, Secunderabad. It is on the basis of these reports, passports were accordingly issued to A-1 to A-3 in their assumed names and they were despatched by speed post to their respective address at Kurnool as indicated in the passport 12

applications. The passports were received at the Head Post Office, Kurnool through speed post. On 23.8.2001 two speed post articles addressed to the assumed names of A-2 and A- 3 were entrusted to PW-11 Babu Miah, a postman of Beat 2, for delivery of the same to the addressees. A-8 (D. Gokari Saheb appellant in criminal appeal no. 783/07) Postman, Head Post Office, Kurnool, approached PW-11 Babu Miah and collected the two speed post articles by giving his acknowledgement on the delivery slip list falsely representing that he knew the addresses and he would personally deliver the articles. On 27.8.2001 another speed post article containing passport in the assumed name of A-1 was entrusted to A-8 for delivery who in turn delivered it to one Aslam Khan, Cashier of Hotel Elite, Kurnool where A-6 was also working. A-6 sent two covers to A-9 on 23.8.2001 and 27.8.2001 in courier service.

8. We shall notice further details only so far as the appellants before us are concerned. Exhibit P1 is the index card of Sana Malik Kamal. ( assumed name for Monika 13

Bedi). PW-1 is the author of exhibit P1. PW-1 filled up exhibit P1 at the request of C.A. Hameed (A-6). PW-4 is the Superintendent in the Regional Passport Office, Secunderabad. He speaks of issuance of the passports in pursuance of passport application in the name of Sana Malik. PW-5 P. Krishna Mohan Reddy was the Mandal Revenue Officer, Kurnool Mandal who issued residence certificate dated 9.4.2001 in the name of Sana Malik Kamal based on false verification reports submitted by A-7 Mohammad Yunis. That as per exhibit P9 residence certificate, Sana Malik Kamal (assumed name of Monica Bedi) is stated to be residing at Babu Gounda Street, Kurnool. PW-6 at the relevant time was working as Deputy Educational Officer, Nandyal, Kurnool District who stated that there was no school by name of Hanuman Higher Elementary School, Kurnool wherein Sana Malik Kamal was alleged to have studied. PW-7 M. Lakshminarayana at the relevant time was the Junior Assistant in the District Police Office, Kurnool and he speaks of receiving applications for 14

verification of contents therein. According to him, A-4 ( G. Srinivas) who attended to passport inquiries, received the passport application of Sana Malik Kamal. After receipt of exhibit P15 enquiry report along with exhibits P16 and P17 statements submitted by A-5 S.A. Sattar, A-4 prepared the relevant report and forwarded the same to the Regional Passport Office, Secunderabad. Exhibit P18 is the letter addressed by the Superintendent of Police to the Regional Passport Office, Secunderabad reporting no objection for the grant of passport to the applicant. Rest of evidence relates to handing over of speed post articles relating to Babu Miah as per the instructions of the Head Post Master, Kurnool from whom A-8 Gokari Saheb took the speed post articles from him for being delivered to the addressees. PW-13 is the owner of the residential apartment wherein Monica Bedi (A-3) is alleged to have resided as tenant during the years 1995-1997. Rest of the details are not required to be noticed.

15

9. The learned Special judge for C.B.I. on a careful and meticulous appreciation of the evidence and material made available on record convicted the appellants as noted herein above. The High Court on re-appreciation of the evidence confirmed the conviction but modified the sentence as noted herein above.

Submissions:

10. Now we shall proceed to consider the submissions made by the learned senior counsel Shri K.T.S. Tulsi appearing on behalf of the appellant - Monica Bedi (A-3). The learned senior counsel submitted that the appellant has been tried and convicted by a competent court of jurisdiction at Lisbon for being in possession of fake passport and, therefore, her trial and conviction for possessing the same passport before the C.B.I. Court at Hyderabad amounts to double jeopardy and in violation of Article 20(2) of the Constitution of India and as well under Section 300 Cr.P.C. The learned senior counsel further submitted that there is no 16

evidence of appellant's involvement in any of offence whatsoever. His further submission was that the appellant has been denied the benefit of Section 428 of the Code of Criminal Procedure, in as much as she has neither been given the benefit of the period of sentence undergone by her in Portugal nor has she been given the benefit of the complete period pursuant to sentence in Portugal i.e. after 18th September, 2004, which she is legally entitled to.

11. We have also heard the learned counsel appearing on behalf of Shaik Abdul Sattar (A-5), Mohd. Yunis (A-7) and D. Gokari Saheb (A-8).

12. Shri P.P. Malhotra, learned Additional Solicitor General and Shri I. Venkata Narayana, learned senior counsel supported the impugned judgment. Both of them have submitted that Article 20 (2) has no application whatsoever to the facts on hand.

Double Jeopardy

17

13. Now we shall take up the first contention of Shri Tulsi as to whether the appellant's guaranteed fundamental right under Article 20 (2) has been infringed? Article 20 (2) of the Constitution provides that no person shall be prosecuted and punished for the same offence more than once.

14. Article 20 (2) embodies a protection against a second trial and conviction for the same offence. The fundamental right guaranteed is the manifestation of a long struggle by the mankind for human rights. A similar guarantee is to be found in almost all civilised societies governed by rule of law. The well known maxim `nemo delset bis vexari pro eadem causa' embodies the well established common law rule that no one should be put on peril twice for the same offence. BLACKSTONE referred to this universal maxim of the common law of England that no man is to be brought into jeopardy of his life more than once for the same offence.

18

15. The fundamental right guaranteed under Article 20 (2) has its roots in common law maxim nemo debet bis vexari - a man shall not be brought into danger for one and the same offence more than once. If a person is charged again for the same offence, he can plead, as a complete defence, his former conviction, or as it is technically expressed, take the plea of autrefois convict. This in essence is the common law principle. The corresponding provision in the American Constitution is enshrined in that part of the Fifth Amendment which declares that no person shall be subject for the same offence to be twice put in jeopardy of life or limb. The principle has been recognised in the existing law in India and is enacted in Section 26 of the General Clauses Act, 1897 and Section 300 of the Criminal Procedure Code, 1973. This was the inspiration and background for incorporating sub- clause (2) into Article 20 of the Constitution. But the ambit and content of the guaranteed fundamental right are much narrower than those of the common law in England or the doctrine of `double jeopardy' in the American Constitution. 19

16. In Maqbool Hussain vs. The State of Bombay1, this Court explained the scope of the right guaranteed under Article 20 (2) and as to what is incorporated in it as "within its scope the plea of autrefois convict as known to the British jurisprudence or the plea of double jeopardy as it known to the American Constitution but circumscribed it by providing that there should be not only a prosecution but also a punishment in the first instance in order to operate as a bar to a second prosecution and punishment for the same offence." That in order for the protection of Article 20 (2) to be invoked by a person there must have been a prosecution and as well as punishment in respect of the same offence before a court of law of competent jurisdiction or a tribunal, required by law to decide the matters in controversy judicially on evidence. That the proceedings contemplated therein are in the nature of criminal proceedings before a court of law or a judicial tribunal and the prosecution in this context would mean an initiation or 1

(1953) SCR 730

20

starting of the proceedings of a criminal nature in accordance with the procedure prescribed in the statute which creates the offence and regulates the procedure. This principle is reiterated in S.A. Venkataraman vs. The Union of India & Anr.,2 wherein this Court observed that the words "prosecuted or punished" are not to be taken distributively so as to mean prosecuted or punished. Both the factors must co-exist in order that the operation of the clause may be attracted."

17. What is the meaning of expression used in Article 20 (2) "for the same offence"? What is prohibited under Article 20 (2) is, the second prosecution and conviction must be for the same offence. If the offences are distinct, there is no question of the rule as to double jeopardy being applicable. In Leo Roy Frey vs. Superintendent District Jail, Amritsar3, petitioners therein were found guilty under Section 167 (8) of the Sea Customs Act and the goods recovered from their possession were confiscated and heavy 2

(1954) SCR 1150

3

(1958) SCR 822

21

personal penalties imposed on them by the authority. Complaints thereafter were lodged by the authorities before the Additional District Magistrate under Section 120B of the Indian Penal Code read with provisions of the Foreign Exchange Regulations Act, 1947 and the Sea Customs Act. The petitioners approached the Supreme Court for quashing of the proceedings pending against them in the court of Magistrate inter alia contending that in view of the provisions of Article 20 (2) of the Constitution they could not be prosecuted and punished twice over for the same offence and the proceedings pending before the Magistrate violated the protection afforded by Article 20 (2) of the Constitution. This Court rejected the contention and held that criminal conspiracy is an offence under Section 120B of the Indian Penal Code but not so under the Sea Customs Act, and the petitioners were not and could not be charged with it before the Collector of Customs. It is an offence separate from the crime which it may have for its object and is complete even before the crime is attempted or completed, and even when 22

attempted or completed; it forms no ingredients of such crime. They are, therefore, quite separate offences. The Court relied on the view expressed by the United States, Supreme Court in United States vs. Rabinowith4. In The State of Bombay vs. S.L. Apte5, this Court laid down the law stating that if the offences were distinct there is no question of the rule as to double jeopardy as embodied in Article 20 (2) of the Constitution being applicable. It was the case where the accused were sought to be punished for the offence under Section 105, Insurance Act, after their trial and conviction for the offence under Section 409, Penal Code, this Court held that they were not sought to be punished for the same offence twice but for two distinct offences constituted or made up of different ingredients and therefore the bar of Article 20 (2) of the Constitution or Section 26 of the General Clause Act, 1897, was not applicable. This Court made it clear that the emphasis is not on the facts "alleged in the two complaints but rather on the 4

(1915) 238US 78.

5

(1961) 3 SCR 107

23

ingredients which constitute the two offences with which a person is charged." The ratio of the case is apparent from the following:

"To operate as a bar the second prosecution and the consequential punishment thereunder, must be for `the same offence'. The crucial requirement therefore for attracting the Article is that the offences are the same, i.e., they should be identical. If, however, the two offences are distinct, then notwithstanding that the allegations of fact in the two complaints might be substantially similar, the benefit of the ban cannot be invoked. It is, therefore, necessary to analyse and compare not the allegations in the two complaints but the ingredients of the two offences and see whether their identity is made out."

That the test to ascertain is whether two offences are the same and not the identity of the allegations but the identity of the ingredients of the offences.

It is thus clear that the same facts may give rise to different prosecutions and punishment and in such an event the protection afforded by Article 20 (2) is not available. It is settled law that a person can be prosecuted and punished more than once even on substantially same facts provided the ingredients of both the offences are totally different and 24

they did not form the same offence. In Bhagwan Swarup vs. State of Maharashtra6, the accused was convicted with regard to a conspiracy to commit criminal breach of trust in respect of the funds of one Jupiter company. There was another prosecution against the accused for the conspiracy to lift the funds of another company, though its object was to cover the fraud committed in respect of the Jupiter company. This Court held that the defalcations made in the Jupiter may afford a motive for new conspiracy, but the two offences are distinct ones. Some accused may be common to both of them, "some of the facts proved to establish the Jupitor conspiracy may also have to be proved to support the motive for the second conspiracy. The question is whether that in itself would be sufficient to make the two conspiracies the one and the same offence. The ingredients of both the offences are totally different and do not form the same offence within the meaning of Article 20 (2) of the Constitution and, therefore, that Article has no relevance." 6

AIR 1965 SC 682

25

18. In State of Rajasthan vs. Hat Singh & Ors.7, this Court held that the Rajasthan Sati (Prevention) Act, 1987 provided for different offences and punishment for glorification of sati and for violation of prohibitory order against glorification of sati. They are not the same offences. While Section 5 of the said Act makes the commission of an act an offence and punishes the same; the provisions of Section 6 are preventive in nature and make provision for punishing contravention of prohibitory order so as to make the prevention effective. The two offences have different ingredients. This Court held:

"It is, therefore, concluded that in a given case, same set of facts may give rise to an offence punishable under Section 5 and Section 6 (3) both. There is nothing unconstitutional or illegal about it."

19. This appears to be the consistent view of the Supreme Court of the United States. In T.W. Morgan vs. Alfonso J. Devine @ Ollie Devine8, the U.S. Supreme Court observed that the court has settled that the test of identity of 7

(2003) 2 SCC 152

8

(1915) 237 U.S. 1153

26

offences is whether the same evidence is required to sustain them; if not, then the fact that both charges relate to and grow out of one transaction does not make a single offence where two are defined by the statutes.

20. In United States vs. Vito Lanza9, it is held that an act with respect to intoxicating liquor which is denounced as a crime by both the National and State sovereignties may be punished under the law of each sovereignty without infringing the provision of the 5th Amendment to the Federal Constitution against double jeopardy for the same offence. It is observed:

"An act denounced as a crime by both National and State sovereignties is an offence against the peace and dignity of both, and may be punished by each ..... We have here two sovereignties, deriving power from different sources, capable of dealing with the same subject matter within the same territory. Each may, without interference by the other, enact laws to secure prohibition, with the limitation that no legislation can give validity to acts prohibited by the Amendment. Each government, in determining what shall be an offence against its peace and dignity, is 9

(1922) 260 U.S. 314

27

exercising its own sovereignty, not that of the other."

21. Shri K.T.S. Tulsi, learned senior counsel in the present case before us mainly contended that the facts based on which the appellant (Monica Bedi) was prosecuted and punished by a competent court of jurisdiction at Lisbon and the facts based on which prosecution has been initiated resulting in conviction are the same and, therefore, the conviction of the appellant is in the teeth of Article 20 (2) of the Constitution and Section 300 of the Code of Criminal Procedure. The submission is not well founded for the simple reason that the same set off facts can constitute offences under two different laws. An act or an omission can amount to and constitute an offence under IPC and at the same time constitute an offence under any other law. It needs no restatement that the bar to the punishment to the offender twice over for the same offence would arise only where the ingredients of both the offences are the same. 28

22. The question that falls for our consideration is, whether the appellant can be said to have satisfied all the conditions that are necessary to enable her to claim the protection of Article 20 (2) of the Constitution. The charges upon which the appellant has been convicted now, for the charges under the Indian Penal Code, we will presume for our present purpose that the allegations upon which these charges are based, proved, resulting in conviction and punishment of the appellant are substantially the same which formed the subject matter of prosecution and conviction under the penal provisions of Portugal law. But we have no doubt to hold that the punishment of the appellant is not for the same offence.

23. Be that as it may, there is no factual foundation laid as such by the appellant taking this plea before the trial court. Nothing is suggested to the Investigating Officer or to any of the witnesses that she is sought to be prosecuted and punished for the same offence for which she has been 29

charged and convicted by a competent court of jurisdiction at Lisbon. She did not even make any such statement in her examination under Section 313 Cr.P.C. It is true that the fundamental right guaranteed under Article 20 (2) of the Constitution is in the nature of an injunction against the State prohibiting it to prosecute and punish any person for the same offence more than ones but the initial burden is upon the accused to take the necessary plea and establish the same.

24. In Halsbury's Laws of England, 2nd Edition, Volume-IX, the law is succinctly summarised on this aspect of the matter as:

"If the defendant pleads autrefois convict or autrefois acquit, the prosecution replies or demurs. If the prosecution replies, which is the usual course, a jury is sworn to try the issue(x). The onus of proving the plea is on the defendant (a). He may prove it by producing a certified copy of the record or proceedings of the alleged previous conviction or acquittal (b), and showing by such copy or by other evidence, if necessary, that he has been convicted or acquitted of the same, or practically the same, offence as that on which he has been arraigned (c), or that he 30

might on his former trial have been convicted of the offence on which he has been arraigned (d). The question for the jury on the issue is whether the defendant has previously been in jeopardy in respect of the charge on which he is arraigned (e), for the rule of law is that a person must not be put in peril twice for the same offence. The test is whether the former offence and the offence now charged have the same ingredients in the sense that the facts constituting the one are sufficient to justify a conviction of the other, not that the facts relied on by the Crown are the same in the two trials (f). "

25. However, having regard to the nature of the guaranteed right we have examined the judgment passed by a Constitutional Court, Lisbon ( a typed copy of the same made available by the learned senior counsel for the appellant - Monica Bedi which we believe to be a true copy) does not support the plea of the appellant. The Constitutional Court while considering the issue of extradition of the appellant and the nature of the trial undergone by her in Portugal observed:

[*]

"It is a fact that the appellant has been trialled in Portugal for committing an offence provided and punishable under article 256 of the penal 31

code. However, should any facts be found in that process and in that trial that would release her of any guilt regarding offences based upon which she is wanted by the requesting state, then it is not acceptable by means of a

restrictive and formal interpretation of a principle which is deemed to assume wider configurations to authorize her extradition to trial her for facts strongly linked and which may even coincide with those same offences.

In other words, it is not acceptable and it cannot be admitted that the appellant has been trialled and convicted in Portugal for the commission of the offence of use of forged documents, namely in a decision which

revealed in the analysis of the facts regarding the attainment of such documents (allegedly subsumed by India in the offences of corruption and association) that the appellant was not involved in those fact. Furthermore, it cannot be admitted that her extradition is authorized in order to trial her for committing such act. Extradition process which brings in contact a variety of legal systems and different forms of legal classification and of behaviour punishments, but which does not allow going deeper in those laws, as well as in the evidence based upon which the requests for extradition were made requires a wider interoperation of the principle of ne bis idem."

It is further observed:

32

"The Indian Union claims extradition of the appellants to trial her for the commission of an offence of criminal conspiracy. We consider that this offence has no correspondence in our legal and penal system and that it is not the object of an autonomous incrimination. As a matter of fact, it constitutes a from that could be classified as joint authorship;

...As a matter of fact, we consider that such arguments have no legal basis. Because the requesting state wants at any cost the

appellants extradition, it is clear that it is justifying its request by stating that criminal conspiracy as opposed to what the person to be extradited claims constitutes an autonomous incrimination.

However, careful analysis of the original version of article 120 B of the Indian Penal Code (included in the records, but attached herewith as documents no. 1 and which is incorrectly translated into Portuguese) allows one to conclude, with safety, that the type of

conspiracy described therein as being the conduct of someone who commits an offence associated with someone else (complicit), is not coincident with the incorporation of a stable organization, hierarchically defined and whose object is the commission of offences.

...Given that our judiciary authorities are convinced that the question under consideration is the charge against the appellant regarding offence subsumable under an offences of

criminal association which does not correspond to the Indian charges.

33

...it is not up to the constitutional court to interpret and set out the meaning of any provisions contained in the Indian Penal Code and establish on a final basis the scope of criminal conspiracy, given that this would transcend the object of constitutional rules control.

Taking into consideration the reasons stated in the appealed decision, one cannot accept the argument that the appealed courts interpretation of article 31, no. 2 of law 144/99 of 31st August was in the sense that the judge is not obliged to substantiate and explain (in the decision to extradite someone claimed for the commission of offences which do no fall within the range of offences provided under our legal system) the reasons why the offence should be appealed decision, the appellant could not have raised this unconstitutionality based on the different of legal qualification of the offences that the was charged with by both legal systems in concurrence. As a matter of fact, the question under consideration is the charge with different offences, one should note that, besides the fact that this statement does not faithfully reproduce what is said in the summary decision, the two subsequent paragraphs demonstrate that the real problem does not involve the facts but rather the different legal classification thereof." [* There are number of typographical errors and mistakes in construction of sentences and we did not correct the same and extracted as it is from the copy supplied.] 34

26. In the light of these findings and conclusions reached by the Constitutional Court at Lisbon and on a careful consideration of the entire matter and the facts placed before us, we are of the considered opinion that the appellant's plea of double jeopardy is wholly untenable and unsustainable. This point is accordingly answered against the appellant.

Merits:

27. Now we shall proceed to consider as to whether the courts below committed any error in convicting and sentencing the appellant for the charged offences? Is there no evidence against the appellant as contended by the learned senior counsel? It is fairly settled that this Court in exercise of its jurisdiction under Article 136 of the Constitution of India normally does not interfere with the concurrent findings of facts arrived at by the courts below on proper appreciation of evidence. It is not the function of this Court to re-appreciate the evidence and substitute the 35

findings for that of the courts below unless it is clearly established that the findings and the conclusions so arrived at by the courts below are perverse and based on no evidence.

28. The simple case of the prosecution is that all the appellants entered into a conspiracy in order to secure a passport in the assumed name of Sana Malik Kamal, for the benefit of Monica Bedi so as to enable her to utilize the same to leave the country and travel abroad. There is no controversy whatsoever that Monica Bedi travelled abroad on the strength of the passport secured by her in the assumed name. She entered Portugal with the aid of passport standing in the name of Sana Malik Kamal for which she has to face the prosecution and suffer conviction and sentence in Portugal.

29. It is evident from the record that the involvement of the appellants is at two stages. Stage one is where Monica Bedi (A-3) and Mohd. Yunis (A-7) are involved in the pre- 36

passport application at the threshold and even before the preparation of application seeking the passport in the assumed name. Stage two is the involvement of Monica Bedi (A-3), Shaik Abdul Sattar (A-5) and D. Gokari Saheb (A-8) after the submission of passport application before the authorities. Exhibit P2 is the passport application submitted in the assumed name of Sana Malik Kamal which contains the photograph of Monica Bedi (A-3). Essential requirements for obtaining the passport are: (1) passport application; (2) proof of residence and (3) date of birth certificate as spoken to by PWs. 2, 3, 21 and 31. How these documents are obtained for the benefit of Monica Bedi has been clearly brought on record through a number of witnesses whose evidence remained unimpeached. It is Mohd. Yunis (A-7), the Mandal Revenue Inspector who verified the residence particulars of Sana Malik Kamal on the instructions of PW-5, Mandal Revenue Officer, Kurnool and submitted a false verification report based on which exhibit P9 residence certificate was issued by PW-5. PW-17 on 37

requisition from C.B.I officials once again got verified and issued exhibit P30 certificate to the effect that no person by name Sana Malik Kamal resides in the house as earlier submitted by Mohd. Yunis (A-7). PW-37 is the Investigating Officer who in his evidence stated that he verified the particulars of occupants of the said house in the presence of PW-27 (D.V. Ratnamaiah), Assistant Superintendent of Post Offices, Kurnool and found no such person named Sana Malik Kamal ever resided therein. It is based on this evidence the trial court and appellate court came to the right conclusion that the prosecution established its case that it is Mohd. Yunis (A-7) who gave false verification based on which exhibit P9 residence certificate was issued by PW-5 in the name of Sana Malik Kamal. The trial court convicted Mohd. Yunis (A-7) for the offence under Section 468 IPC which reads as under:

"468. Forgery for purpose of cheating. - Whoever commits forgery, intending that the document or electronic record forged shall be used for the purpose of cheating, shall be 38

punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine." Section 463 defines forgery, which reads as under: "463. Forgery.- Whoever makes any false documents or false electronic record or part of a document or electronic record, with intent to cause damage or injury, to the public or to any person, or to support any claim or title, or to cause any person to part with property, or to enter into any express or implied contract, or with intent to commit fraud or that fraud may be committed, commits forgery."

30. The High Court came to the conclusion that in submitting the false verification report in respect of residence of Sana Malik Kamal he may not have been aware and knew that the certificate so obtained would be used for the purpose of securing the passport in the assumed name of Sana Malik Kamal. At any rate there is no evidence on that aspect of the matter. The High Court also came to the conclusion that by the time Mohd. Yunis (A-7) submitted a false verification there is nothing on record that he was hand in glove with the other accused for the purpose of 39

cheating. Be it noted that the High Court confirmed the acquittal of A-7 of the charge under Section 120B IPC. The High Court, accordingly, found that the proper offence made against him would be one for making forged document simplicitor punishable under Section 465 IPC. In our considered opinion, the High Court was not justified in convicting Mohd. Yunis (A-7) at all for it had found no case against the appellant made out under Section 120B IPC and further found that there is no evidence to assume that he was hand in glove with the other accused for the purpose of cheating. That there is no evidence that A-7 prepared false document with intent to cause damage or injury, to the public or to any person, or to support any claim or title, or to cause any person to part with property, or to enter into any express or implied contract, or with intent to commit fraud. The ingredients of Section 463 are not satisfied. In such an event the conviction of the appellant under Section 465 IPC is unsustainable.

40

31. That so far as D. Gokari Saheb (A-8) is concerned there is a clear evidence which has been properly appreciated by the courts below that he who took the article (envelop contained the passport) addressed to Sana Malik Kamal from PW-11 representing that he knew the addressee and deliver the same. The said article was actually entrusted to PW-11 for its delivery but D. Gokari Saheb (A- 8) took the same from PW-11 for delivery to Sana Malik Kamal - assumed name of Monica Bedi (A-3). The courts below found that D. Gokari Saheb (A-8) was aware of the contents of the article. It is under those circumstances the courts below came to the right conclusion that evidence available on record clearly establish that he participated in the conspiracy in securing the passport for Monica Bedi in the assumed name of Sana Malik Kamal. Thus the conviction of D. Gokari Saheb (A-8) for the charged offences is accordingly upheld. We do not find any reason whatsoever to interfere with the view taken by the High Court. However, the sentence of one year rigorous 41

imprisonment under each count awarded while maintaining the fine imposed by the trial court is reduced to that of 6 months rigorous imprisonment under each count while maintaining the fine amount.

32. Shaik Abdul Sattar (A-5) is the Head Constable who submitted exhibit P15 report. PW-7, PW-8 and PW-14 are the material witnesses examined by the prosecution to prove the accusations leveled against A-5. PW-7 at the relevant time was Junior Assistant in the District Police Office, Kurnool who speaks about entrustment of the verification of the passport application in respect of Sana Malik Kamal to A-5. He also speaks about A-5 submitting Exhibit P15 inquiry report together with statements of persons purported to have been recorded by him in exhibit P16 and P17. There is absolutely nothing on record to disbelieve the evidence of PW-7 who stated in his evidence that A-5 submitted exhibit P15 report knowing it to be a false one apart from certifying that Sana Malik Kamal was residing at that particular house in Kurnool and was not 42

involved in any civil and criminal cases and there was nothing adverse against her. PW-8 was working as Inspector of Police, District Special Branch, Kurnool who prepared exhibit P18 letter on the basis of exhibit P15 inquiry report submitted by A-5. PW-14 is the Sub-Inspector, District Special Branch, Kurnool who testified that A-5 submitted exhibit P15 report and it bears signature of A-5. The courts below held that the evidence of PW-7, PW-8 and PW-14 is cogent and consistent which in clear and categorical terms prove the fact that A-5 is the person who verified the passport application particulars of Sana Malik Kamal and submitted exhibit P15 inquiry report along with exhibit P16 and exhibit P17 enclosures. There cannot be any doubt whatsoever that A-5 submitted a false report in order to enable Monica Bedi to secure a passport for herself in the assumed name of Sana Malik Kamal. His conviction for the charged offences is accordingly upheld. The High Court however, reduced the sentence awarded by the trial court to one year rigorous imprisonment under each count while 43

maintaining the fine imposed by the trial court. The sentence awarded under Section 13 (1) (d) r/w 13 (2) of Prevention of Corruption Act has been confirmed. Having regard to the facts and circumstances of the present case, we however, reduce the sentence to that of six months rigorous imprisonment under each count while maintaining the fine imposed by the trial court and the sentence to suffer imprisonment, in default, of payment of fine. Sentences are directed to run concurrently.

Case of Monica Bedi - Appellant in Criminal Appeal No. 782/2007:

33. So far as the appellant - Monica Bedi is concerned she is involved in the conspiracy as proved at both stages i.e. pre-passport application stage and post-passport application stage. The conspiracy itself has been hatched only with a view to secure a passport for Monica Bedi in the assumed name of Sana Malik Kamal. We do not find any merit in the submission of Shri Tulsi, learned senior counsel that there is 44

no evidence whatsoever against Monica Bedi to prove her involvement for the offence punishable under Sections 120B, 419 and 420 IPC. The sequence of events as unfolded by the evidence, which we do not want to recapitulate once again as we have noticed the same in detail in the preceding paragraphs, clearly prove the charges levelled against Monica Bedi. It is for her benefit that the entire conspiracy has been hatched involving more than one individual in order to secure a passport for her benefit enabling her to travel abroad in the assumed name of Sana Malik Kamal. There is no material based on which this Court is to differ with the findings and conclusions concurrently arrived at by the courts below.

Shri Tulsi, however, reiterated the submission which he made before the High Court that exhibit P50 is a Photostat copy of the passport in the name of Sana Malik Kamal and the same is inadmissible document as it is not authenticated by legal keeper as provided under Section 78 (6) of the Indian Evidence Act. The submission was that based on 45

such inadmissible document no prosecution could be launched and once it is to be held that the said document is not admissible the whole case of the prosecution collapses like a pack of cards. The High Court after elaborate consideration of the matter came to the right conclusion that Section 78 (6) of the Evidence Act, 1872 deals with public document of any other class in a foreign country. In the present case, the original of exhibit P50 is the passport issued by the competent authorities in this country and, therefore, Section 78 (6) has no application whatsoever to the facts of this case. The issuance of original of exhibit P50 passport is clearly proved. It is based on that passport Monica Bedi travelled abroad and entered Portugal for which she has to face a prosecution and suffer conviction and sentence. The prosecution cannot be held to be vitiated. We accordingly reject the contention and uphold the conviction of the appellant for the offence punishable under Sections 120B, 419 and 420 IPC. The High Court, however, reduced the sentence of imprisonment imposed on the 46

appellant - Monica Bedi (A-3) as noticed in the preceding paragraphs. The High Court also held that she is entitled for set off of the periods of detention suffered by her in Lisbon i.e. from 18.9.2004 to 4.6.2005 and 3.11.2005 to 10.11.2005.

However, having regard to the facts and circumstances of the case and the fact that she had undergone more than 2 = years of sentence, we consider it appropriate to reduce the sentence to that of already undergone by her while maintaining fine amount imposed by the courts below.

34. In the view we have taken it is not necessary to go into the question as to the interpretation of Section 428 Cr.P.C and her entitlement to set off against the sentence imposed on her.

Conclusion:

35. Criminal Appeal NO. 782 of 2007 ( Monica Bedi - A-3)

47

For all the aforesaid reasons, we confirm the conviction of Monica Bedi (A-3) under Sections 120B, 419 and 420 IPC. The sentence awarded under each count directed to run concurrently is reduced to that of the period already undergone by her while maintaining the sentence of fine awarded by the courts below. The bail bonds shall stand cancelled.

The appeal is, accordingly, partly allowed. Criminal Appeal NO. 784 of 2007 ( Shaik Abdul Sattar - A-5)

The conviction of Shaik Abdul Sattar (A-5) under Sections 120B, 419 r/w 109, 420 r/w 109 and 468 IPC and as well as under Section 13 (1) (d) r/w 13(2) of the Prevention of Corruption Act is, accordingly, upheld. However, the sentence awarded under each count is reduced to that of six months rigorous imprisonment while maintaining the fine imposed by the courts below. Sentences 48

are directed to run concurrently. He shall surrender before the trial court to serve the remaining sentence, if any. The appeal is, accordingly, partly allowed. Criminal Appeal NO. 1357 of 2007 ( Mohd. Yunis - A- 7)

Mohd. Yunis (A-7) is acquitted for the offence under Section 465 IPC and sentence awarded is set aside. The bail bonds shall stand cancelled.

The appeal is, accordingly, allowed.

Criminal Appeal NO. 783 of 2007 ( D. Gokari Saheb - A-8)

The conviction of D. Gokari Saheb (A-8) under Sections 120B, 419 r/w 109, 420 r/w 109 and 468 IPC and as well as under Section 13 (1) (d) r/w 13(2) of the Prevention of Corruption Act is, accordingly, upheld. However, the sentence awarded under each count is reduced to that of six months rigorous imprisonment while 49

maintaining the fine imposed by the courts below. Sentences are directed to run concurrently. He shall surrender before the trial court to serve the remaining sentence, if any. The appeal is, accordingly, partly allowed. ..................................

........J.

(B. SUDERSHAN REDDY)

..........................................J. (SURINDER SINGH NIJJAR)

New Delhi,

November 09, 2010.

http://www.indiankanoon.org/doc/1104661/