Author: Abhishek Wadhawan


1. Babulal Vs. The State through Aland Police Station

Case No.: Criminal Appeal No. 200147 of 2018

Bench and Author: Justice John Michael Cunha

Date: November 28, 2018

The relevant facts of the case are the appellant had given the surety for the bail of an accused. While the accused jumped the bail, the appellant failed to give any reason for not being able to produce the accused before the Court. The trial court ordered the appellant to pay the surety bond amount of Rs.50,000 and on default of the appellant to pay the same, the trial court ordered the appellant to be imprisoned for a period of six months. This order of the trial court had been challenged in this appeal.

It was contended by the appellant that he was a poor agriculturist and hence it was not possible for him to pay an amount of Rs.50,000 to the court. Moreover, the accused was later arrested by the police and was currently in the judicial custody of the police and hence the appellant must be set free now.

The Court held that the appellant though was a surety for the bail of the accused, he is poor and cannot pay an amount as high as Rs.50,000. Thus the Court allowed the appeal and ordered the appellant to pay Rs.15000 to the trial court within three days subsequent to which the appellant was to be set free.

Key takeaway: When a surety bond is made for the purpose of bail of an accused and such a surety is not able to pay a high amount due to his poverty, the amount to be paid by such a surety may be reduced.


2. Ganesh Bhandary Vs. Vincent D’Costa @ Cyril

Case No.: Criminal Petition No. 7191 of 2013

Bench and author: Justice Ashok G. Nijagannavar

Date: November 30, 2018

The relevant facts of the case are that the accused- petitioner was convicted by the lower court under the Negotiable Instruments Act. The accused- petitioner had issued a cheque on which originally the name of Smt. Bharathi was written but was later cancelled and Vincent D’Costa’s name was written. The cheque got bounced and the complainant-respondent filed a case against the accused.

Without hearing the statement of Smt. Bharathi, the Court convicted the petitioner which had been challenged in the appeal. The counsel for the petitioner contended that if an opportunity would have been given to the petitioner, he would have led the evidence of the witness Smt. Bharathi, in whose name the cheque was issued. The counsel also wanted the court to record the statement of another witness- Mohammed Ali who was present at the time of sale which happened between the petitioner and the respondent.

The Court ruled that the statement of Smt. Bharathi was vital to the case and her statement must be recorded before pronouncing the judgment. The Court found no merit to record the statement of Mohammed Ali . The Court allowed the appeal and ordered the trial court to summon and record the statement of Smt. Bharathi. The previous order of the trial court was set aside.

Key takeaway: It is necessary for a court to record the statements of all those witnesses whose statements are vital to the decision of the case. In case, the statement of such vital witnesses are not recorded by a lower court, then such a judgment may be set aside by a higher court.


3. Raje Gowda Vs. N. Shivprakash

Case No.: Criminal Appeal No. 891 of 2010

Bench and author: Dr. Justice H.B. Prabhakara Sastry

Date: November 05, 2018

The relevant facts of the case are that the appellant had given a loan of Rs.1,00,000 to the respondent and the respondent had given a cheque to the appellant to repay the loan but the cheque got bounced due to insufficient funds and the appellant filed a case against the respondent under Section 138 of the Negotiable Instruments Act. But later a compromise was reached between the appellant and the respondent and accordingly the appellant withdrew the case as the respondent had given another cheque for repayment of the loan. The other cheque also got bounced and the appellant again filed a case against the respondent. While the trial court convicted the accused under Section 138 of the Negotiable Instruments Act, the first appellate court acquitted the accused.

The appeal was filed by the complainant challenging the decision of the first appellate court. The High Court held that while the complainant states that that the accused had taken a loan from him, the complainant had not been able to state the date on which the loan was given to the accused. The complainant was also not able to prove that the accused was known to him and the Court found it to be surprising that even after once the cheque had bounced, the complainant again accepted a cheque for repayment of the loan rather than asking for a bank draft. Even if a legal presumption is made in favour of the complainant under Section 139 of the Negotiable Instruments Act, the accused has successfully rebutted the said legal presumption.

The Court found that there was a missing link in the entire chain of events. The origin of the transaction of the loan which was required to be proven through a cheque was not proved by the complainant. The account number on the cheques that bounced was not of the accused. Thus, the legal presumption in favour of the complainant was successfully rebutted by the accused. The burden to prove a legally enforceable debt now laid on the complainant which the complainant could not prove. Hence, the Court dismissed the appeal and upheld the decision of the first appellate court that acquitted the accused from the charge of offence under Section 138 of the Negotiable Instruments Act.

Key takeaway: Once an accused successfully rebuts the legal presumption in favour of the complainant under Section 139 of the Negotiable Instruments Act, the onus to prove the existence of a legally enforceable debt is on the complainant.


4. Saraswathamma Vs. State of Karnataka & Vijaya Kumar

Case No.: Criminal Revision Petition No. 1061 of 2014

Bench and author: Justice K.S. Mudagal

Date: November 28, 2018

The complainant was the wife of the deceased. While the first accused was allegedly the second wife of the husband and the second accused was the paramour of the deceased. The prosecution’s case was that the two accused had conspired and poisoned the husband of the complainant. While the case was pending in the trial court, the second accused filed an application under Section 227 of the Code of Criminal Procedure and the said application was allowed and the second accused was acquitted. The petitioner is the defacto complainant who challenged the order of the trial court on the ground that the notice of the application was not served to the Public Prosecutor. The Public Prosecutor was also not heard by the trial court before passing the said application.

On referring to the order of the trial court, the Court noted that the order was cryptic and it did not state whether the Public Prosecutor was notified and heard or not in reference to the application made by the second accused or not. The Court concluded that the crime was a heinous one and the Public Prosecutor was neither notified nor heard. This was against the principles of natural justice. Accordingly, the petition was allowed and the trial court was ordered to reconsider its order in accordance with the law by affording reasonable opportunity of being heard to both the sides.

Key takeaway: If an accused files an application under Section 227 of the Code of Criminal Procedure, the Court must give sufficient opportunity of being heard to the accused as well as to the prosecution before passing any order.


About the Author: Abhishek is a 2018-23 batch student at Gujarat National Law University, Gandhinagar.


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