JUDGMENT <NAME>, J.

1. Smt. <NAME> (widow of <NAME>) was owner of land measuring 49 kanal 18 marla situated in the area of village Dharamkot as entered in Jamabandi of 1977-78 and described in the heading of the plaint. <NAME> alias <NAME> of village Dharamkot filed suit for possession of this land as owner against <ORG> through its President <NAME> and <NAME> through <NAME> on the allegations, that Smt. <NAME> used to reside with him. He was serving her. He served her to the fullest. He was her Mukhtare-am. He used to manage the property of Smt. <NAME>. He had been paying her land revenue. Smt. <NAME> had executed a registered will in his favour on 12.4.71 constituting him as her sole heir while in sought disposing mind. Defendants in collusion with the revenue authorities got the suit land mutated in their favour. Smt. <NAME> had never executed and will thereafter nor she had cancelled the aforesaid registered will executed by her in his favour on 12.4.71.

2. Defendants contested the suit of the plaintiff urging that Smt. <NAME> was devotee of <NAME>. She used to spend most of her time in the service of <ORG>, Dharamkot. She was also worshipper of <NAME>. Plaintiff did not serve her. It was denied that Smt. <NAME> had appointed the plaintiff as her Mukhtar. <NAME> used to manager her won affairs herself. It was denied that the plaintiff had been paying her land revenue. <NAME> had no connection with the plaintiff. She had no love and affection for him. <NAME>'s sister was married at Lohgarh. <NAME> and <NAME> are sister's sons of <NAME>. <NAME> also used to spend some time at Lohgarh in the house of <NAME> and <NAME> who also served her. It was denied that <NAME> ever executed any will in favour of the plaintiff of her free will and volition. Assuming that the will set up by the plaintiff had been executed by Smt. <NAME>, the same was cancelled by her when she executed will in favour of the defendants on 23.12.80 before the gram Panchayat of village, Lohgarh. This will was scribed by <NAME>, Secretary <ORG>, Lohgarh and was witnessed by <NAME>, <NAME>, <NAME>, <NAME>, <NAME>. <NAME>, <NAME> and <NAME> of Dharamkot also witnessed the will in favour of the defendants. Will was written in the Karvai Register of the <ORG>. Land in suit was mutated in the name of the defendants by the revenue authorities who relief upon will dated 23.12.80. in favour of the defendants. Through this will, Smt. <NAME> bequeathed her property to the defendants in equal shares and it was her last will. On these pleadings of the parties, the following issues were framed:-

1. Whether <NAME> deceased made a valid will dated 12.4.71 in favour of the plaintiff, if so, its effect? OPP

2. Whether <NAME> deceased made a valid will dated 23.12.1980 in favour of the defendants, if so, its effect ? OPD

3. Relief

3. Additional Senior Sub Judge, <NAME> vide order dated 21.5.84 dismissed the plaintiffs suit, in view of his finding that Smt. <NAME> had executed registered will Ex.P3 in favour of the plaintiff dated 12.4.71 while in sound disposing mind but the execution of this will was of no consequence when she had executed another will Ex.D1 dated 23.12.80 in favour of the defendants while in sound disposing mind whereby she had cancelled the previous will.

4. Not satisfied with this judgment and decree of Additional Senior Sub Judge, <NAME> dated 21.5.84, plaintiff went in appeal which was dismissed by Additional District Judge, <NAME> vide order dated 4.11.85. Still not satisfied, plaintiff has come up in appeal to this Court.

5. <NAME> plaintiff (PW1) stated that Smt. <NAME> was putting up with him for 50-60 years. He used to serve her. She was the wife of <NAME> alias <NAME>. <NAME> died 40-45 years ago. No child was born to Smt. <NAME> from <NAME>. After the death of <NAME>, Smt. <NAME> put up with him. He was her <NAME> and was managing her property. She was recorded as voter with him in his house. Ex.P.1 is the certified copy of the relevant extract of the voter list. He further stated that he performed the last rites of Smt. <NAME>. She was recorded on the ration card obtained by him. It was joint ration card. On ration card (certified copy Ex.P2). she is recorded with him. Ration card relates to two members of the family and Mahant <NAME> was shown as head of the family. He further stated that Smt. <NAME> executed will in his favour while in sound disposing mind. She was of sound disposing mind till her death. She used to go to temple (Mandir) for paying respects. She never went to Gurdwara. She was known as his wife among the people. She was residing in <ORG>, <ORG> <NAME>. <NAME> is the Municipal Commissioner of'that Ward. He immersed the last remains of Smt. <NAME>. Pandit <NAME> performed the Garud Path. In his cross examination, he stated that Smt. <NAME> was a Brahmin. He is also a Brahmin. He was never married to Smt. <NAME>. He had no child from Smt. <NAME>. <NAME> died 45-50 years ago. He was not aware what was the age of Smt. <NAME> at the time of the death of <NAME> but she was 80-85 years old at the time of her death. <NAME> PW4 stated that she was resident of <NAME>. He had known Smt. <NAME>. Earlier she resided in Agwar Sidhwan. After the death of her husband <NAME>, she was putting up with <NAME> in the same house. She put up with <NAME> till her death. <NAME> put up in the house of <NAME> with Smt. <NAME>. Smt. <NAME> executed will (Ex.P3 certified copy) in favour of <NAME>. <NAME> used to serve her. It was scribed by <NAME> at Zira. Smt. <NAME> was in sound disposing mind at the time of execution of this will. Will was read out to Smt. <NAME> who thumb marked the same in his presence and in the presence of <NAME>. He and <NAME> attested the Will in the presence of Smt. <NAME>. Smt. <NAME> executed this will of her free will and volition. There was no brother of <NAME>. This will was presented before the Sub Registrar. Smt. <NAME> admitted this will to be correct before the Sub Registrar in the presence of <NAME> and <NAME>. Before the Sub Registrar Smt. <NAME> thumb marked the endorsement while <NAME> and <NAME> attested the endorsement. Sub Registrar registered the will. <NAME> PW4 further stated that Smt. <NAME> was believer in Sanatanist faith. She did not visit Gurdwara. In his cross examination, he stated that he had social terms with Smt. <NAME>. Smt, <NAME> was 60-70 years old at the time of execution of the will. He went to the Mandir and paid respects there. He went to Thakurdwara and paid his respects there. He had seen Smt. <NAME> going to Thakurdwara some times. She had never gone to Gurdwara. He had not known <NAME>'s sister. He has no knowledge whether she was married at village Lohgarh. <NAME> was owner of 20-25 kilas of land. He denied the suggestion that Smt. <NAME> executed this will not of free will and volition but under the pressure, of <NAME>. <NAME> is the scribe of this will. He supported the ' execution of this will by Smt. <NAME> on 12.4.71. He stated that after he had scribed this will, he made an entry with regard to this will in his petition writer's register the photocopy of which is Ex.P4. That day, Smt. <NAME> executed some sale deed, he made an entry with regard to that sale deed in his register, the photocopy of which is Ex.P5. Smt <NAME> was of sound disposing mind. There can be no manner of doubt that Smt. <NAME> executed will dated 12.4.71 in favour of <NAME> while in sound disposing mind. <NAME> stated that he is Sarpanch of the village. He has been member of <ORG> for 15 years. He has been Chairman of <ORG>, Zira for the last. 12 years. <NAME> further stated that about 3-1/4 years ago, Smt. <NAME> executed will Ex.D1 in favour of <NAME>, <NAME> and <NAME> Lohgarh in equal shares. Will was recorded in the proceedings book of <ORG> Lohgarh. It was an ordinary meeting of <ORG> under his chairmanship when Smt. <NAME> executed Will D1. It was scribed by <NAME>, Secretary., <ORG>. It was read out to Smt. <NAME> who thumb marked it in his presence and in the presence of <NAME>, <NAME>, <NAME>, Municipal Commissioner, <NAME> and many others. He stated that he had known Smt. <NAME> because <NAME>'s sister is married in his village Lohgarh and <NAME> is her son and <NAME> had been visiting <NAME> and staying with him for two months at a stretch. He further stated that Smt. <NAME> used to serve at <ORG>. <NAME>, <ORG> Secretary also supported the execution of this will by Smt. <NAME>. He is the scribe of this will. <NAME> DW3 who is the other attesting witness of this will supported the execution of this will be Smt. <NAME>. He stated that Smt, <NAME> executed this will at Lohgardh because at <NAME>, she was under pressure of <NAME>. She took him to Lohgarh. He stated that he is President of <ORG>, <NAME>. At the time of execution of will, he was Municipal Commissioner. Smt. <NAME> used to go to Gurdwara and pay her respects there. She had full faith in <ORG> Lohgarh since beginning. She had her own house at <NAME>. She was resident of his ward. He stated that he attended the last rites of Smt. <NAME>. He did not see the plaintiff performing her last rites. He could not. tell who immersed the remains of Smt. <NAME>. He could not tell the place where her last remains were immersed. Plaintiff had been sometimes to the house of Smt. <NAME> but they were not putting up together. When it was suggested to him that the plaintiff and Smt. <NAME> were holding joint ration card and they had been recorded as voters together, he could not deny this suggestion.

6. <NAME>, Document Expert, Patiala compared the disputed thumb impression mark 'C' bearing on will Ex.D1 with the standard thumb impressions of Smt. <NAME> appearing on will dated 12.4.71 mark "A" and thumb impressions mark A1 appearing on endorsement of the Sub Registrar on the will and mark "B" on mukhtar nama dated 3.6.60. In his opinion, the disputed thumb impression i.e. 'C' was either shaken or superimposed and in the central portion the ridges show circular nature as in the whorl type of pattern. The standard thumb impressions A and B are of the left hand and of loop type. The standard thumb impression A1 on the endorsement of the registered will dated 12.4.71 is of right hand and of loop type. He stated that whatever comparison was possible with the disputed thumb impression considering the condition of the disputed thumb impression, disputed thumb impression does not show identity with the standard thumb impression of both left and right hand. In nut shell, he stated that the disputed thumb impression mark C appearing on will- dated 23.12.80 purportedly that of Smt. <NAME> was neither of her right hand nor of left hand as if it were of left hand, it would have been identical with thumb impression A or B. He has stated in his report Ex.PW6/A that after considering the above, though in all fairness, the condition of the thumb impression is such that definite opinion is not possible but whatever comparison could be done does not show identity of the disputed thumb impression with the standard thumb impressions. He stated that the disputed thumb impression was inciden-taly or deliberately shaken at the time of affixation or was super-imposed as direct contours are visible and marked on the photograph. According to <NAME>, the thumb impression mark C was not that of Smt. <NAME> either of her right hand or of her left hand. His statement thus ruled out the execution of will Ex.D1 by Smt. <NAME> in favour of <ORG>, Dharamkot and <NAME>, Lohgarh.

7. Will Ex.D1 is attended by suspicious circumstances. Will Ex.D1 is unregistered. Smt. <NAME> died on 19.1.82. Will Ex.D1 could be got registered. Fact that the will Ex.D1 was attested by a number of persons suggests that <NAME> and others were under the impression that if they procure the attestation of a number of persons, the Court will think that the will was genuine and was executed by Smt, <NAME>. Fact that the will bears the attestation of a number of persons in different ink also suggests that the attestation of the will by them did not take place at one and the same time. It appears that <NAME> etc. could not reconcile to the execution of earlier will by Smt. <NAME> in favour of <NAME> and they converged together and manipulated this will. When the earlier will was registered, to lend assurance to the factum of cancellation of that will and the execution of another will instead, it would have been desirable if the later will had also been got registered and also the deed of cancellation. It is true that there is no difference between a registered will and an unregistered will so far as their genuineness and authenticity are concerned but it is equally true that a registered will stands on a better footing than an unregistered will inasmuch as about a registered will it is taken that it was the act of a testator of a sound disposing mind. About an unregistered will, it is not taken that it was the act of a testator of sound disposing mind.

8. Learned counsel for the respondent submitted that <NAME> plaintiff had no concern with Smt. <NAME>. It was submitted that in' the extract of the voters list Ex. P2, she is recorded as voter with one <NAME> son of <NAME>. There is no evidence that it is this <NAME> who is shown as voter with her in the same house. It was submitted that in the ration card <NAME> is shown recorded. This ration card is for two members of the family. Who was the other member of the family is not mentioned. It was submitted that it cannot be assumed or presumed that the other member of the family with. <NAME> was Smt. <NAME>. <NAME> was her mikhtar. She appointed him her mukhtar because of some affinity. Smt. <NAME> was not married to <NAME>. After the death of her husband <NAME>, he started putting up with Smt. <NAME> in that house. <NAME> died 40-50 years ago. He remained associated with her all through till her death. Due to his constant association with her, he developed affinity with her. Due to that affinity she executed will Ex.P3 in his favour. She was Brahmin by casts. No wonder, she did not have faith in Gurdwara or Thakurdwara. She did not have faith in Gurdwara or Thakurdawara to the extent that she could think of depriving <NAME> of her inheritance who had been serving her for decades together. Learned counsel for the respondent submitted that thought Smt. <NAME> was a Brahmin but as she was married to a Jat, she developed faith in Gurdwara and Thakurdwara and she was visiting Gurdwara and Thakurdwara, paying her respects there and as such she cancelled the earlier will and executed the later will.

9. Later will appears on the last pages of the <ORG> register of the panchayat. After 23.12.80, there is no resolution of the panchayat. This register was not checked by <ORG> Panchayat Officer or by any other functionary of the Department ,of Panchayats neither at the beginning of the register nor at the close of the register. Where is the assurance that later will was not ante-dated and was really written on 23.12.80. It lay upon the propounder of the will to prove genuineness and authenticity of the will and further that the will was executed by the testator in sound disposing mind. Will is required to be proved to the satisfaction of the conscience of the court. Conscience of the court should be satisfied that the testator wanted to bequeath in favour of the propounder and he really bequeathed in his favour. If there are any suspicious circumstances attending the execution of the will impinging upon its genuine-ness,it would be for the propounder to dispel those suspicions and satisfy the conscience of the court about the genuineness and authenticity of the will. In this case, the conscience of the court is not satisfied that Smt. <NAME> executed any will in favour of <ORG>, Dharamkot and <NAME>, Lohgarh and revoked the earlier will which she had executed a number of years before her death in favour of <NAME> with whom she had association of a number of years and who was her constant companion, looking after her and her property.

10. Learned counsel for the respondent submitted that both the courts below have found in favour of the later will and this court sitting in second appeal cannot find otherwise on appreciation of evidence over again. It was submitted that the finding of fact, however, erroneous it may be, cannot be interfered with in second appeal. Suffice it to say, finding of fact arrived at by the courts below can be interfered with in second appeal, if there is no evidence to sustain the finding of fact arrived at by the two courts below. There is no evidence in support of the later will. Later will was not shown to have been thumb marked by Smt. <NAME>. Later will was not shown to have been executed really on 23.12.80. Possibility of the later will having been anti-dated and fabricated was required to be dispelled by the beneficiaries thereunder but the same was not done. Such a finding of fact which works havoc to the cause of justice can be set aside by this court in second appeal.

11. For the reasons given above, this appeal succeeds and is accepted. Judgment and decrees passed by the courts below are set aside. Plaintiff appellant's suit is decreed for possession as owner of land measuring 49 kanal 18 marla as detailed in the heading of the plaint against the defendant-respondents with costs.


JUDGMENT <NAME>, J.

1. The appellant in this case was the defendant in a suit that was instituted by the respondent on February 22, 1913, seeking specific performance of an agreement to sell certain oil wells in Burma, as she is what is known as a twinzayo-i.e., one of the twenty-four people to whom the <ORG> is in the habit of annually making grants of oil wells in British Burma. On December 18, 1903, as the settlement of a dispute that was then outstanding between herself and the respondent, the appellant entered into an agreement, through her husband as her attorney, with the respondent, for the sale to him of two sets of oil wells. The first were six out of the twelve sites that she Would obtain for 1902, and the second were three out of the twelve sites that she would obtain for 1903. It appears that so far as the twelve sites for 1902 were concerned the contract was duly satisfied, but with regard to the 1903 sites difficulties arose. On September 21, 1904, four of those sites were allotted by the <ORG>, and on January 12, 1905, a further six were allotted, making ten in all. Eight of these were resumed by the <ORG> on July 1, 1907, on the ground that there had been no working, and one was resumed on March 20, 1908, All the nine sites so resumed were regranted before February 3, 1912, and, at a later date, probably about March of 1912, a further twenty-three sites were granted to the appellant, who thus became possessed of all the sites which she would have received had they been annually allotted to her according to the usual practice in groups of twelve at a time. None of these sites were conveyed to the respondent, and accordingly he instituted in 1913 against the appellant the proceedings which have given rise to this appeal. The pleadings which were then filed are very instructive upon the nature of his claim. He sets out the contract of December 18, 1903; he refers to the fact that the sites allotted in 1902 had been duly transferred and alleges that ten out of the twelve sites had been received in 1903, and he concludes in this way: "Out of these"-that is out of the ten for 1903-"the plaintiff" asked the defendant to deliver three sites which still remained due to the plaintiff, but she refused to do so." He then refers to the allotments in 1912 and states that in 1912 he again "asked her to deliver three sites and she promised, to give three sites out of those which she obtained in 1912. But afterwards she did not give them." He then states that the suit is not barred by limitation and prays "for a decree with costs, for recovery of three sites out of twenty-three granted in 1912," and he sets out the numbers of the sites. It is important to observe that no one of those numbers relates to any of the sites that were originally allotted in respect of 1903, and that the whole action is deliberately founded on the alleged agreement of 1912.

2. On the matter coming for trial before the District Judge, he found that the verbal agreement, upon which this pleading was based, was not established by the evidence, and the Judicial Commissioner, to whom an appeal was taken from that judgment, affirmed that view, but the Judicial Commissioner, instead of affirming the decree by which the suit had been dismissed, made an order directing that there should be liberty to amend and a reference established upon that amendment enabling compensation to be assessed for the alleged breach of the contract to convey entered into in the year 1908.

3. The first question that arises is whether or no that leave to amend was properly given in accordance with the rules by which that leave must necessarily be regulated. All rules of <ORG> are nothing but provisions intended to secure the proper administration of justice, and it is therefore essential that they should be made to serve and be subordinate to that purpose, sO that full powers of amendment must be enjoyed and should always be liberally exercised, but none the less no power has yet been given to enable one distinct cause of action to be substituted for another, nor to change, by means of amendment, the subject matter of the suit.

4. The provisions as to amendment are those that are to be found in the Code of Civil Procedure of 1903. Section 153 of that Code enacts that "The <ORG> may at any time and on such terms as to costs or otherwise as may think fit amend any defect or error in any proceeding in a suit ; and all necessary amendments shall be made for the purpose of determining the 1 real question or issue raised by or depending on such poceeding" and by Order VI, Rule 17, "The <ORG> may at any stage of the proceedings, allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real question in controversy between the parties." The real question in controversy between the parties in these proceedings was the existence and the character of an agreement alleged to have been made in 1912 for the delivery of certain sites of oil wells specified and identified by the numbers stated in the plaint, which could only have been delivered in respect of that subsequent bargain. When once that contract has been negatived, to permit the plaintiff to set up and establish another and an independent contract altogether would, in their Lordships' opinion, be to go outside the provisions established by the Code of Civil Procedure, to which reference has been made. It would be a regrettable thing if, when in fact the whole of a controversy between two parties was properly open, rigid rules prevent its determination, but in this case their Lordships think that the rules do have that operation and that it was not open to the <ORG> to permit a new case to be made.

5. They desire, however, to add that, having given the fullest consideration to the new case which could be set up, they are of opinion that it must fail, and they think that it is only right to the parties to state the reasons that lead them to that conclusion.

6. If the contract is now put forward as the contract that was made on December 18, 1903, that is a contract which, so far as it is unperformed, relates to the delivery of three sites out of twelve sites for 1903. It has been urged on behalf of the respondent that that contract could not proceed to operate until twelve sites had in fact been allocated. That is not the view that their Lordships take of the contract. Their view is that when the power of selection rested with the defendant, and so soon as she was able to allocate three sites she was in a position to satisfy the bargain and that she could have then been compelled to obey it. There is nothing to show that the allocation of the total of the twelve sites is a condition precedent to the grant of the three. If that be right it follows that she could have satisfied the contract in 1904, and it was shortly afterwards, in 1905, that the plaintiff himself alleged that the refusal had taken place. The defendant was herself called by the plaintiff as a witness, though for reasons, of which there is no explanation, the plaintiff does not appear to have entered the witness-box, and, on being called, she says that the "plaintiff came and asked me for the three remaining well sites in 1904 or 1905, but I refused to give them to him." It is quite true that there is other evidence to suggest that what took place on that occasion was more in the nature of an evasion than of a direct refusal ; but, if the plaintiff is going to assert that in fact the reason for the omission to satisfy the contract was not due to a refusal on the defendant's part, he certainly was bound to have gone into the box to have answered a statement so specific and so direct by the other party to the contract called as his own witness.

7. Their Lordships think that there was at that date a refusal and that consequently, in any circumstances, the Indian Limitation Act would have prevented this suit from being instituted on February 22, 1913. That this was the view that was held by the plaintiff himself when the proceedings were first instituted is, in their Lordships' minds, apparent from the form of the plaint by which the proceedings were begun.

8. So far, therefore, as the appeal is concerned their Lordships think that it should be allowed.

9. So far as the cross-appeal is concerned it is an action for specific performance of this contract of December 18, 1903, It certainly is rather startling to be told that nine years after a contract has been made which could have been satisfied within twelve months of its execution, a party to the contract is at liberty to take proceedings for specific performance. The rights of equity which prevail in British Burma are rights which are given to people who are vigilant and not to those who sleep, and, unless there can be clearly established some reason which threw upon the defendant the entire blame for the delay that had occurred, or unless, indeed, it can be shown that the real right of action had only accrued a short time before the proceedings were instituted, such a lapse of time would be fatal to any action for specific performance of a contract. As their Lordships have already expressed their view that the Indian Limitation Act defeats the suit, it is, therefore, unnecessary to add anything further on the cross-appeal.

10. Their Lordships will accordingly humbly advise His Majesty that the appeal should be allowed and that the cross-appeal should be dismissed, with costs to the defendant here and in the Courts below.


CASE NO.: Appeal (civil) 9676 of 2003 PETITIONER: <NAME> RESPONDENT: Chairman, <ORG> & <ORG>. DATE OF JUDGMENT: 03/05/2005 BENCH: <NAME> & <NAME> JUDGMENT:

J U D G M E N T W I T H CIVIL APPEAL NO.9678 OF 2003 S.B. SINHA, J :

These two appeals arising out of a common judgment and order dated 10.2.2003 passed by <ORG> at Jammu were taken up for hearing together and are being disposed of by this common judgment.

Interpretation of a bipartite settlement dated 8.9.1983 is in question in these appeals which arise out of the aforementioned judgment and order passed by a Division Bench of the said court dismissing an appeal preferred by <ORG> (hereinafter referred to as 'the Bank), affirming a judgment and order dated 15.12.1999 passed by a learned Single Judge of the said court whereby and whereunder an award dated 4.10.1995 passed by <ORG>, Chandigarh, directing the workman to be reinstated in service with the benefit of past service without any back wages had not been interfered with.

The workman was working as a Cashier-cum-Clerk with the <ORG>. He was transferred to Kolkata on or about 2.4.1981; but he did not join the said office or before 14.4.1981, when he was supposed to do so. On his failure to report to Kolkata office by 14.4.1981, a notice was issued by the <ORG> on 22.6.1981 asking him to show cause as to why disciplinary proceedings should not be initiated against him. Taking however a lenient view, he was transferred to Amritsar on 6.8.1981 and then to <NAME> on a representation having been made in this behalf. He later on was transferred to Amritsar again. He joined <ORG> on 29.7.1982. A leave for a period of 28 days was sought for and sanctioned in favour of the workman on an application made therefor by him on or about 9.10.1982. A further leave of 9 days was sanctioned by an order dated 17.11.1982. Yet again he filed an application seeking leave for one month on 19.5.1983; although he had only 25 days accumulated leave to his credit and his leave account had already been deducted by 50 days' medical leave.

A bipartite settlement was entered into by and between the management of 58 Banks including <ORG> herein and their workmen; clause 2 whereof is as under :

"2. Voluntary Cessation of employment by the employees.

Whereas an employee has not submitted any application for leave and absents himself from work for a period of 90 or more consecutive days without or beyond any leave to his credit or absents himself for 90 or more consecutive days beyond the period of leave originally sanctioned or subsequently extended and where there is satisfactory evidence that he has taken up employment in India and the management is satisfied that he has no present intention of joining duties, the management may at any time thereafter give a notice, to the employee's last known address calling upon the employee to report for duty within 30 days of the notice stating, inter alia, the grounds for the management coming to the conclusion that the employee has no intention of joining duties and furnishing necessary evidence, where available. Unless the employee reports for duty within 30 days or unless he gives an explanation for his absence satisfying the management that he has not taken up another employment or avocation and that he has no intention of not joining duties, the employee will be deemed to have voluntarily retired from the bank's service on the expiry of the said notice. In the event of the employee submitting a satisfactory reply, he shall be permitted to report for duty thereafter within 30 days from the date of the expiry of the aforesaid notice without prejudice to the <ORG>'s right to take any action under the law or rules of service."

Despite the expiry of the period of leave in June 1983, the workman did not report back for duties, whereupon the Branch Manager, <NAME>, informed him by a letter dated 2.11.1983 that he should rejoin his duties, which was not complied with. An explanation was sought for from him by Memorandum dated 2.11.1983 whereby and whereunder he was asked to show cause as to why he had been on unauthorized leave for such a long period. Such an explanation was to be filed by 10.11.1983. He had further been asked to join duties. Despite service of the said memo., the workman failed to join his duties by 31.12.1983. Consequently, a show cause notice dated 31.12.1983 served on him whereby and whereunder he was intimated that in the event of his failure to resume his duties by 15.1.1984 he would be deemed to have been discharged from the services of the <ORG>. In reply thereto, a telegram from one <NAME> was received stating that the workman being unwell could not join his duties by 15.1.1984. He again applied for grant of leave on medical ground on 15.2.1984. As by reason of the aforementioned act on the part of the workman, the <ORG> felt a great deal of inconvenience, a memorandum was served on 20.2.1984, pursuant whereto again he requested for sanctioning of leave. His services were dispensed with by invoking clause (2) of the bipartite settlement stating :

"3. Consequent upon receipt of these applications from Mr. <NAME>, the bank had no alternative but to make confidential enquiries about the state of his health in pursuance of which it was revealed that Mr. <NAME> was keeping a good health and even attended to his family business. This convinced the bank that Mr. <NAME> was not at all interested in the services of the bank, which prompted it to issue an order vide No. Per/Disp/84-448 dated 17.5.1984 in accordance with the provisions contained in Memorandum of Settlements dated 8.9.1983 and Mr. <NAME> was deemed to have voluntarily retired from the services of the bank w.e.f.8.2.1984."

A legal notice was served upon the <ORG> herein after a long time demanding the reinstatement of the workman on or about 6.4.1989, to which it was replied that he had been engaged in some business at <ORG> and thus it was clear that he had no interest in continuing in the services of the <ORG>. Sometime in June 1989, a conciliation proceeding was initiated by him under the Industrial Disputes Act resulting in a reference made by <ORG> in terms of a Notification dated 7.8.1990.

Inter alia, on the ground that the bank allegedly did not place on records the settlement dated 8.9.1983, the impugned award was passed. In the writ petition filed thereagainst by the <ORG> it was specifically averred :

"It is important to point out here that the relevant Bipartite Settlement is applicable to the Management of the Bank and <ORG> is just in the form of Book and the petitioner-bank while perusing its case has placed that book of Bi-Partite Settlement before the respondent No.2 but the respondent No.2 without considering that settlement has remained under this impression that Bi-Partite Settlement is just a form of some document consisting of some leaves and has not placed on record which is not true. The order passed by the respondent No.2 is totally in contravention of Bi- partite Settlement and deserves to be quashed on this score only.

A writ petition was also filed by the workman questioning non-grant of back wages. Both the writ petitions were heard together. In the said proceedings, the workman filed an application purported to be under Section 17-B of the Industrial Disputes Act, which was not supported by an affidavit as is required in law. The learned Single Judge although noticed the contentions raised in both the writ petitions, but dealt with the one filed by the workman only. An appeal preferred thereagainst was also dismissed.

Mr. <NAME>, the learned counsel appearing on behalf of the <ORG>, would submit that <ORG>-cum- Labour Court as also both the learned Single Judge and the Division Bench of <ORG> proceeded on a wrong premise that it was obligatory on the part of the <ORG> to conduct a full fledged departmental proceeding. According to the learned counsel <ORG> as also <ORG> erred in law insofar as they failed to take into consideration that the principles of natural justice had been complied with as repeated opportunities had been given to the workman to explain his position as also report for duties. Strong reliance, in this behalf, has been placed on <CITATION> [] and <CITATION> [].

Mr. <NAME>, the learned counsel appearing on behalf of the workman, on the other hand, would contend that as a plea for extension of leave was raised by the workman, if the same had not been proved to be satisfactory to the management, it was obligatory on its part to conduct a departmental proceeding against him. In any event, the learned counsel would contend that the applicability of the bipartite settlement having not been gone into by <ORG> as also by <ORG>, the matter should be remitted to the <ORG>.

Before <ORG>, the workman did not deny or dispute the existence of the bipartite settlement. He merely raised a plea that the same was not applicable. The plea of the <ORG>, on the other hand, was that the stipulations contained in the bipartite settlement were attracted if the employer arrives at a satisfaction that that there were sufficient grounds for it to arrive at a conclusion that the employee was no longer interested to continue in the service.

The fact that there exists a bipartite settlement entered into by and between the Banks and their workmen is not in dispute. The workman was all along aware about the said legal position inasmuch as, at all stages, viz., issuance of notices and memorandums, passing of the order of termination, the said settlement had been referred to.

What fell for consideration before <ORG> was the interpretation and/or applicability of the said settlement. <ORG> committed an error of record insofar as it proceeded on the basis that the said settlement had not been proved. The settlement being an admitted document should have been considered in its proper perspective by <ORG>. Clause (2) of the said settlement is a complete code by itself. It lays down a complete machinery as to how and in what manner the employer can arrive at a satisfaction that the workman has no intention to join his duties. A bare perusal of the said settlement clearly shows that it is for the employee concerned to submit a proper application for leave. It is not in dispute that after the period of leave came to an end in June 1983, the workman did not report back for duties. He also did not submit any application for grant of further leave on medical ground or otherwise. It is in that situation the memorandum dated 2.11.1983 was issued and he was asked to joint his duties. It is furthermore not in dispute that despite receipt of the said memorandum, the workman did not join duties pursuant whereto he was served with a notice to show cause dated 31.12.1982. He was required to resume his duties by 15.1.1984. The <ORG> received a telegram on 17.1.1984 and only about a month thereafter he filed an application for grant of leave on medical ground. It is not the case of the workman that any leave on medical ground or otherwise was due to him. Opportunities after opportunities indisputably had been granted to the workman to explain his position but he chose not to do so except filing applications for grant of medical leave and that too without annexing proper medical certificates.

The bipartite settlement is clear and unambiguous. It should be given a literal meaning. A bare perusal of the said settlement would show that on receipt of a notice contemplated thereunder, the workman must either : (1) report for duties within thirty days; (2) give his explanation for his absence satisfying the management that he has not taken any employment or avocation; and (3) show that he has no intention of not joining the duties. It is, thus, only when the workman concerned does not join his duties within thirty days or fails to file a satisfactory explanation, as referred to hereinbefore, the legal fiction shall come into force. In the instant case except for asking for grant of medical leave, he did not submit any explanation for his absence satisfying the management that he has not taken up any other employment or avocation and that he has no intention of not joining his duties.

In the aforementioned fact situation we do not see any reason as to why the <ORG> could not arrive at a satisfaction that the workman had no intention to join his duties. It is interesting to note that though the said order was passed on 17.5.1984, a representation to the <ORG> was made by the workman to reconsider the said decision after a period of 3 years and 2 months by a letter dated 31.7.1987 Yet again a dispute was sought to be raised by issuance of a legal notice on the <ORG> only on 6.4.1989.

Mere sending of an application for grant of leave much after the period of leave was over as also the date of resuming duties cannot be said to be a bona fide act on the part of the workman. The <ORG>, as noticed hereinbefore, in response to the lawyer's notice categorically stated that the workman had been carrying on some business elsewhere.

We cannot accept the submission of Mr. <NAME> that only because on a later date an application for grant of medical leave was filed, the same ipso facto would put an embargo on the exercise of the jurisdiction of the <ORG> from invoking clause (2 ) of the bipartite settlement.

It may be true that in a case of this nature, the principles of natural justice were required to be complied with but the same would not mean that a full-fledged departmental proceeding was required to be initiated. A limited enquiry as to whether the employee concerned had sufficient explanation for not reporting to duties after the period of leave had expired or failure on his part on being asked so to do, in our considered view, amounts to sufficient compliance of the requirements of the principles of natural justice.

Clause (2) of the bipartite settlement raises a legal fiction, which is of wide import. Once the action on the part of the employer is found to be fair, the court in view of such legal fiction would call upon the workman to prove contra. It will bear repetition to state that the only defence which came to be raised by the workman was non-applicability of the bipartite settlement. The notice dated 31.12.1983 refers to the said settlement by necessary implication, as on the failure of the workman to resume his duties by 15.1.1984, it was stated that he would be deemed to have been discharged from the services of the <ORG>. Yet again in terms of the memorandum dated 20.2.1984, attention of the workman was drawn to the fact that his application for grant of leave was neither in the prescribed form nor any medical certificate was attached thereto. It was pointed out that the medical certificate shows that he was under the doctor's treatment from 22.10.1983 to 22.1.1984 and as such he should have reported for duties on 23.1.1984 and as he failed to do so, it gave rise to an inference that he was not interested to continue in <ORG>'s services. He did not submit any satisfactory explanation nor he filed any valid medical certificate. It was in that situation, the order dated 17.5.1984 was issued which again referred to the provisions contained in memorandum of settlement dated 8.9.1983. The workman ex facie appears to have accepted the said order as for a long period he maintained silence. Had he been interested in the <ORG>'s services, it was expected of him to resume his duties and/or file proper application for grant of medical leave with a valid medical certificate.

The principle of natural justice, it is trite, is no unruly horse. When facts are admitted, an enquiry would be an empty formality. Even the principle of estoppel will apply. [ <CITATION> []. The principles of natural justice are required to be complied with having regard to the fact situation obtaining therein. It cannot be put in a straitjacket formula. It cannot be applied in a vacuum without reference to the relevant facts and circumstances of the case. [ <CITATION> ] and <ORG> & Anr. Vs. S.G. Koturappa & Anr. 2005 (2) SCALE 493].

The contention raised at the <ORG> appears to be squarely covered by two decisions of this <ORG> relied upon by Mr. <NAME>. In <ORG> (supra) <NAME>, J. speaking for the Division Bench observed :

"14. Two principles emerge from the decisions: (1) principles of natural justice and duty to act in a just, fair and reasonable manner have to be read in the Certified Standing Orders which have statutory force. These can be applied by <ORG> and <ORG> even to relations between the management and workman though based on contractual obligations; and (2) where domestic inquiry was not held or it was vitiated for some reason the <ORG> or <ORG> adjudicating an industrial dispute can itself go into the question raised before it on the basis of the evidence and other material on record.

15. In the present case action was taken by the <ORG> under clause 16 of the Bipartite Settlement. It is not disputed that <NAME> absented himself from work for a period of 90 or more consecutive days. It was thereafter that the <ORG> served a notice on him calling upon him to report for duty within 30 days of the notice stating therein the grounds for the <ORG> to come to the conclusion that <NAME> had no intention of joining duties. <NAME> did not respond to the notice at all. On the expiry of the notice period the <ORG> passed orders that <NAME> had voluntarily retired from the service of the <ORG>."

It was further held :

"18. The <ORG> has followed the requirements of clause 16 of the Bipartite Settlement. It rightly held that <NAME> has voluntarily retired from the service of the <ORG>. Under these circumstances it was not necessary for the <ORG> to hold any inquiry before passing the order. An inquiry would have been necessary if <NAME> had submitted his explanation which was not acceptable to the <ORG> or contended that he did report for duty but was not allowed to join by the <ORG>. Nothing of the like has happened here. Assuming for a moment that inquiry was necessitated, evidence led before the <ORG> clearly showed that notice was given to <NAME> and it is he who defaulted and offered no explanation of his absence from duty and did not report for duty within 30 days of the notice as required in clause 16 of the Bipartite Settlement."

The aforementioned legal position was reaffirmed by a decision of three-Judge Bench in <ORG> (supra), wherein it has been held :

"Under this rule the employee is given an opportunity to rejoin duty within a stipulated time or explain his position to the satisfaction of the management that he has no intention of not joining duty, and a presumption will be drawn that the employee does not require the job anymore and will stand retired from service. Thus, there is no punishment for misconduct but only to notice the realities of the situation resulting from long absence of an employee from work with no satisfactory explanation thereto".

In the fact situation obtaining therein it was held that there had been sufficient compliance for principle of natural justice.

In <ORG> (supra), this Court noticed the decision of three- Judge Bench of this Court in <CITATION> . [] whereupon <ORG> had placed strong reliance. In <ORG> (supra) admittedly no opportunity was given to the workman and no inquiry was held. In that situation, it was observed :

"8. The cardinal point that has to be borne in mind, in every case, is whether the person concerned should have a reasonable opportunity of presenting his case and the authority should act fairly, justly, reasonably and impartially. It is not so much to act judicially but is to act fairly, namely, the procedure adopted must be just, fair and reasonable in the particular circumstances of the case. In other words application of the principles of natural justice that no man should be condemned unheard intends to prevent the authority from acting arbitrarily affecting the rights of the concerned person."

Keeping in view the fact that we have ourselves considered the pleadings of the parties as also the materials on records, it is not necessary to remit the matter to the <ORG> as it would not serve any purpose. So far as the appeal preferred by the workman is concerned, it is not necessary to entertain the same as it is evident that Section 17-B of the of the Industrial Disputes Act cannot now be applied in view of the fact that the workman did not file an affidavit before the learned Single Judge in support of his contentions and as required under law.

Having regard to the facts and circumstances of the case and for the reasons stated hereinbefore, we are of the opinion that the appeal preferred by the <ORG> should be allowed and that of the workman should be dismissed. However, in the facts and circumstances of the case, there shall be no order as to costs.


<NAME>, J.

1. This application under Order 41 Rule 19 read with Section 151 C.P.C. is filed in the following circumstances.

2. The appellant/applicant challenged the decree of the first <ORG> in R.A. No. 22/1987 on certain substantial questions of law formulated by him in the appeal memo as required. The defendant in the Original Suit is the appellant and he suffered a decree in the trial Court for declaration of title of the plaintiff/respondent to the suit property and for delivery of vacant possession of the area under dispute. The parties are said to be brothers. The first <ORG> confirmed the decree. When the appeal came up for admission on 15-4-1991, the learned Single Judge made the following Order:

"None appears for the appellant. This matter was heard on 8-2-1991 and notice directed to the other side. The respondent/ plaintiff has appeared through Counsel who is present in <ORG> today.

I have satisfied myself that no injustice is caused by dismissing this appeal for non-prosecution as it is on the concurrent findings of the Courts below and no substantial question of law arises for consideration."

Though in the memorandum of facts in support of I.A.II it is stated that the Counsel appearing for the appellant was seriously ill and unable to move out of the house due to acute diabetic nuerosis and because of his physical inability he could not go to the <ORG> and represent the matter. None appeared before <ORG> when the matter was taken up for admission.

3. The point now for consideration is whether this application under Order 41 Rule 19 C.P.C. is maintainable as this <ORG> in the absence of the Counsel appearing for the appellant proceeded to observe that no substantial question of law arises for consideration, which ultimately may mean that the appeal was not found fit for admission on merits. The respondent supports the order contending that the Judgment being one passed on merits, application under Order 41 Rule 19 is not maintainable.

4. Order 41 Rule 11 (1) reads thus:

"<ORG>, after sending for the record if it thinks fit so to do, and after fixing a day for hearing the appellant or his pleader and hearing him accordingly if he appears on that day, may dismiss the appeal without sending notice to, the <ORG> from whose decree the appeal is preferred and without serving notice on the respondent or his pleader."

Under Rule 11 (2):

"If on the day fixed or any other day to which the hearing may be adjourned the appellant does not appear when the appeal is called on for hearing, the Court may make an order that the appeal be dismissed."

Under Rule 11 (3):

"The dismissal of an appeal under this rule shall be notified to the <ORG> from whose decree the appeal is preferred."

Thus Rule 11 is attracted to a stage Where the appeal is not yet admitted and posted for hearing oh merits. Rule 16 relates to the procedure on hearing.

Explanation to Order 17(1) states that nothing in Sub-rule (1) shall be construed as empowering the <ORG> to dismiss the appeal on merits. Under Sub-rule (1) of Rule 17 where on the date fixed or on any other date to which hearing may be adjourned; the appellant does not appear when the appeal is called for hearing, the <ORG> may make an Order that appeal be dismissed. Thus this is the stage when the appeal is posted for hearing after it is admitted to hear on the substantial questions of law arising in the appeal. Rule 19 relates to re-admission of appeal dismissed for default. It is necessary to note that Rule 19 does not confine itself to Rule 17 only. On the other hand, it applies to Rule 11 as well when it states that where an appeal is dismissed under Rule 11 Sub-rule (2) of Rule 17 or Rule 18 the appellant may apply to the Appellate <ORG> for re-admission of the appeal. These are the relevant provisions which are now required to be considered in this application. Rule 19 makes reference to Sub-rule (2) of Rule 11 which states that if on the day or any other date to which the hearing may be adjourned, the appellant does not appear when the appeal is called on for hearing, the <ORG> may make an order that the appeal be dismissed. This is analogous to the provisions of Rule 17(1). It is contended that the Explanation to Rule 17 may as well attract the provisions of Rule 11 though it is not expressly stated so under Rule 11 that the <ORG> has no power to dismiss the appeal on merits in the absence of the appellant.

5. My attention is also invited to Order 42 Rule 2 C.P.C. which refers to power of the <ORG> to direct that the appeal be heard on the questions formulated by it. It says that at the time of making an order under Rule 11 of Order 41 for the hearing of the second appeal, the <ORG> shall formulate the substantial question of law as required by Section 100 and in doing so, the <ORG> may direct that the second appeal be heard on the question so formulated and it shall not be open to the appellant to urge any other ground in the appeal without the leave of the <ORG> given in accordance with the provisions of Section 100. Thus Rule 2 of Order 42 refers to Rule 11 of Order 41 as well. What is required to be done before admitting an appeal is stated in Rule 11 which means hearing the appellant or his pleader and then coming to the conclusion if the substantial question of law arises or not. Incidentally the respondent's Counsel invited my attention to Chapter II of the Rules framed by this High <ORG> which relates to definitions and interpretations. Rule 1 (p) reads thus:

"To admit a case" means to decide to issue notice to respondent or direct issue of notice to respondent after preliminary perusal of papers or preliminary hearing under the provisions of Order 41 Rule 11 of C.P.C. or Section 421 of . or any other like provision to any other law for the time being in force;

The words "Admission", "For Admission" or similar expressions shall be construed accordingly.

Where upon such preliminary perusal or hearing the <ORG> decides not to issue notice, the case is said to be dismissed summarily."

Referring to this definition, it was urged that the <ORG> has power to peruse the papers as a preliminary step or give a preliminary hearing to decide to issue notice to respondent or direct issue of notice to respondent. Issuing of notice to respondent may be at a stage where the <ORG> has not yet decided to hear the appeal on admission. This however is not in conflict with Rule 11 of Order 41 which speaks of hearing the appellant or his pleader before dismissing the appeal without sending notice to lower <ORG> or issuing notice to the respondent. That being so, the preliminary stage or preliminary hearing contemplated under this Rule 1(p) cannot be construed as hearing for admission itself. Therefore, whether the <ORG> proceeds to hear under Rule 11 or Rule 17, it must be deemed that the said hearing is either to decide or determine any substantial question of law involved in that appeal or on merits respectively. Undoubtedly, the stage under Rule 17 had not reached and the <ORG> was at the stage under Rule 11. Broadly speaking, it is apparently clear from reading of Rule 11 of Order 41 or Order 42 Rule 2 that the appellant's Counsel or appellant must be heard before the <ORG> decides whether there is substantial question of law involved or not in the appeal. The <ORG> sitting in the second appeal has the task of perusal of the. Judgments of the trial <ORG> and the first Appellate <ORG> before deciding whether the appeal involves substantial questions of law or not, as the question of fact decided in the first Appellate <ORG> could not be reopened unless appreciation of evidence is perverse. Therefore, for that reason perhaps Rule 11 lays down that after fixing the date for Rearing the appellant or his pleader and hearing him accordingly if he appears on that day, may dismiss the appeal. If he does not appear Sub-rule 2 gives power to dismiss the appeal and this cannot be construed as giving power to the <ORG> to dismiss the appeal on merits. When the appeal reaches the High <ORG> it has to apply its mind while considering the appeal for admission and hearing the appellant's Counsel who would assist the <ORG> in determining the questions involved in the appeal. That being so, it cannot be said that the order passed by this <ORG> in the absence of the appellant should be construed as an order passed on hearing the appellant and on merits. It thus follows that even at the stage of admission the appeal cannot be dismissed on merits stating that no substantial question of law is involved.

6. What should happen to the order that is already passed by this Court is the next point for consideration. When this Court finds that even at the admission stage an appeal could not be dismissed on merits, the Court has broad discretion of rectifying its own order as <ORG> of the State to impart justice and to prevent failure of justice that may occasion if its order were to stand. In my view, therefore, the order now in question cannot be deemed to have been passed on merits as the same was passed without hearing the appellant's Counsel and considering the grounds made out in the memorandum of facts that the Counsel was seriously ill and was not in a position to attend the Court on the date fixed for admission as constituting sufficient cause for the Advocate not being present, the order in question dated 15-4-1991 is set aside holding the same to be an order passed for default of the appellant's Counsel and the Appeal is restored to file, The same shall be posted for admission.


CASE NO.: Special Leave Petition (crl.) 1971 of 1999 PETITIONER: <ORG> Vs. RESPONDENT: <ORG> & <ORG>. RESPONDENTS DATE OF JUDGMENT: 25/02/2000 BENCH: G.B.Pattanaik, U.C.Banerjee JUDGMENT:

<NAME>J.

L.....I.........T.......T.......T.......T.......T.......T..J Leave granted.

Exercise of jurisdiction under the inherent power as envisaged in Section 482 of the Code to have the complaint or the charge-sheet quashed is an exception rather a rule and the case for quashing at the initial stage must have to be treated as rarest of rare so as not to scuttle the prosecution. With the lodgment of First Information Report the ball is set to roll and thenceforth the law takes its own course and the investigation ensues in accordance with the provisions of law. The jurisdiction as such is rather limited and restricted and its undue expansion is neither practicable nor warranted. In the event, however, the court on perusal of the complaint comes to a conclusion that the allegations levelled in the complaint or charge-sheet on the face of it does not constitute or disclose any offence as alleged, there ought not to be any hesitation to rise upto the expectation of the people and deal with the situation as is required under the law. Frustrated litigants ought not to be indulged to give vent to their vindictiveness through a legal process and such an investigation ought not to be allowed to be continued since the same is opposed to the concept of justice, which is paramount. Factual matrix therefore would thus be relevant in the matter of assessment of the situation as to whether civic profile would outweigh the criminal outfit. It appears that as against the initiation of proceeding on the file of 17th Metropolitan Magistrate, Hyderabad against the appellant under Sections 120B, 418, 415 and 420 read with Section 34 Indian Penal Code, the respondents moved <ORG> for quashing of complaint and the Learned Single Judge on 15th February, 1999 in Criminal Petition No.5386 of 1998 did quash the complaint and hence the petitioner is in appeal before this Court. The Learned Single Judge while dealing with the matter came to a definite conclusion that the complaint does not disclose any offence having been committed by the accused petitioner and as such allowed the petition for quashing of the complaint. The factual score depict that the respondents approached the petitioner for the purpose of securing Ethambutol Hydrochloride drug in bulk for sale and use in various pharmaceutical drugs and products being manufactured by the respondent Company. It is at this juncture that the Petitioner has come out with a definite case that by reason of a promise of maintaining continuous supply of raw materials to the petitioners herein for the purpose of manufacturing Ethambutol Hydrochloride and in such a way so as not to cause any interruption or hindrance to the manufacturing activity of the Complainants factory, the Complainant-petitioner entered into an agreement dated 31st August, 1997 which inter alia records as below: It is the responsibility of the party of the 2nd part to maintain sufficient inventory of the Raw Materials as described in the Annexure I in order to maintain consistent supplies to the manufacturer and not to cause any interruption/hindrance with the manufacturing activity by the manufacturer.

It is on the basis of the agreement as noticed above and failure to comply therewith, it is stated that the petitioner herein has lost a substantial amount of money and to the extent of about one crore and the sufferance of loss has been by reason of specific assurance and representation which obviously turned out to be false. Misrepresentation on the part of the respondent accused persons to the Complainant, has been the major grievance and a definite and specific case has been made out that such a misrepresentation was intentionally effected since the accused persons were in the know of things that in the event the supplies are not effected, as per the agreement, the Complainant is likely to suffer a wrongful loss which as the complaint proceeds, in the interest of the transaction between the parties, the accused persons were bound to protect. It is on this score that relevant extracts of the complaint ought to be noticed at this juncture. The complaint inter alia provides as below: (i) ...Clause 9 of the Agreement dated 31.8.1997 states that the schedule of supply of raw materials by the party of the 2nd Part (A1 Company) and the delivery of the finished product by the party of the 1st Part (Complainant) shall be as in Annexure III (to the Agreement)

(ii) Annexure III to the Agreement dated 31.8.1997 would show that the supply of raw material DL2 Amino Butanol by A1 to the Complainant must be 15,210 Kgs or 15.21 Mts per month to facilitate and sustain a monthly production of 8500 Kgs. or 8.5 Mts. of the finished product Ethambutol Hydrochloride per month.

(iii) Another main factor being that the Complainant should not suffer any loss on account of the execution of the agreement with <ORG>. The Complainant states that it entered into the Agreement dated 31.8.1997 with <ORG> under which the Complainant has been converting the raw materials supplied by <ORG> into the bulk drug Ethambutol Hydrochloride and supplying it back to <ORG> on prescribed conversion charges.

(iv) ..The Complainant states that the supply of raw materials, particularly the principal imported raw material DL2 Amino Butanol, by A1 was far from regular almost from the beginning of the agreement. This was often being informed to A1 through A2, A3, A4 and A5. Based on the representations made by A1 through A2 to A5, the Complainant had planned its production according to the agreement i.e. on the basis of supply of 15,210 kgs. DL2 Amino Butanol by A1 for conversion every month, but the <ORG> production plans were totally dislocated and disrupted on account of A1s willful failure to supply the raw materials as represented by them through A2, A3, A4 and A5.

(v) ..The Complainant states that it had to incur a loss of over Rs. One crore due to the willful defaults committed by the Accused. These defaults on part of A1 were repeatedly brought to the notice of the Accused through telephonic calls by the Complainant, more particularly in the fax message of 15.12.97 and 10.2.98 to A1 and A3.

(vi) The Complainant had a meeting with <ORG> on 4.4.1998 which was also attended by <ORG>. At this meeting held on 4.4.98, <ORG> and <ORG> agreed with the position stated by the Complainant and made representations that the supply of raw material by A1, particularly the critical raw material DL2 Amino Butanol, would be kept up regularly to enable production of 8 MTs of the finished product. The Complainant reduced these representations by A1 through <ORG> and <ORG> into writing on the same day and wrote the letter dated 4.4.98 to A1 through <ORG>. The contents of this letter have not been rebutted by A1. The Complainant states that inspite of this, the Accused deliberately failed to act on their representations made to the Complainant on 4.4.98 and thus continued to inflict huge losses on the Complainant

(vii) ..The Complainant states that in its talks and discussions with the Accused, it had been indicating to A2, A3, A4, A5 and A6 that in case A1 could not keep up to its representations which put the Complainant to huge losses, this clause 15 could be invoked and the agreement terminated by the Complainant giving 2 months notice to A1. But the Accused would, on these occasions, persuade the Complainant not to invoke this provision and make further representations to the Complainant that the supply of raw materials would henceforth be kept at the agreed level. However, these representations were not acted upon by the Accused while, on the other hand, believing these representations, the Complainant made schedules of production, but was left without materials, holding on to an idle plant carrying idle labour and thus incurring huge monetary losses.

(viii) ..The Complainant now understands that the above false representations were made by the Accused solely with the purpose of putting the Complainant to huge losses and crippling them since the Accused themselves were planning to manufacture in their own facilities the bulk drug Ethambutol Hydrochloride and wanted to put the Complainant out of competition by ruining them by keeping them out of production which was achieved by the Accused by making false representations of supply of raw material at the agreed levels and then willfully failing and omitting to act as per these representations.

(ix) The Complainant was also persuaded by the representations of the Accused to desist from invoking Clause 15 of the Agreement and revoke it which would have reduced its losses to some extent. The above acts of the Accused clearly attract the ingredients of the offence punishable U/Sec.415 I.P.C ..

(x) the Accused were having dishonest intention and it was with such intention that <ORG> was fraudulently and dishonestly induced to enter into the Agreement dt. 31.8.97. The dishonest intention of the Accused is further seen from the complaint lodged by <ORG> on behalf of <ORG> against three officers of the Complainant.

(xi) The Accused were fully aware that the <ORG> is a reputed manufacturer of Ethambutol Hydrochloride and they are having good reputation in Indan and Overseas markets. The Accused were themselves contemplating entering into production of Ethambutol Hydrochloride and wanted to eliminate the competition from the <ORG> who had established their name in the market. Keeping this in mind, the Accused, in order to earn wrongful gain and cause wrongful loss to the <ORG>, acted in the aforesaid manner, inducing the <ORG> through representations (by the Accused) to commit to conversion work and consequently schedule its production accordingly and then willfully failing to act as per the representations thus putting the <ORG> to huge losses.

(xii) The Complainant further states that but for the false representations made by the Accused at the time of entering into the Agreement dt. 31.8.97, it (Complainant) would not have entered into this Contract. The aforesaid acts of the Accused have ruined the finances of the Complainant and it had to incur huge loss due to these acts of the Accused. The Complainant states that the above said acts of the Accused clearly attract the ingredients of Section 420 I.P.C..

(xiii) The preceding paragraphs in this Complaint would clearly reveal that the Accused who are bound to protect the interests of the Complainant in the transactions under the Agreement dt.31.8.97 have not only cheated the Complainant by causing wrongful loss to it, but have also failed to protect the interests of the Complainants in the transactions. Hence, the Accused are liable to be punished U/Sec.418 I.P.C .

(xiv) .The Complainant states that from whatever has been stated and set out herein above, it is absolutely clear that A1 to A6 had, in criminal conspiracy with each other and in furtherance of the common intention of all have committed the above offences under Section 415 I.P.C. and 420 I.P.C . Letter correspondence, the Complaint and the documents relating to the Agreement dt. 31.8.97 would prove that A2 to A6 have very much participated in the affairs of A1 and in particular, those relating to the transactions under the Agreement dt. 31.8.97.

This longish narration could have probably been avoided, but it cannot be so done by reason of the fact that the Learned Single Judge has only recorded : It appears that under an agreement the accused were obliged to supply raw materials for production to the Complainant which they failed to do. I do not find any allegation whatsoever in the complaint which would disclose a criminal offence.

Before proceeding further in the matter, let us now deal with the offences alleged in the First Information Report. The first offence alleged is that of cheating within the meaning of Section 415  . For convenience sake Section 415 reads as below: 415. Cheating Whoever, by deceiving any person, fradulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to cheat . Explanation A dishonest concealment of facts is a deception within the meaning of this section.

The Complaint is also said to be under Section 418 I.P.C. which reads as below: 418. Cheating with knowledge that wrongful loss may ensue to person whose interest offender is bound to protect. Whoever cheats with the knowledge that he is likely thereby to cause wrongful loss to a person whose interest in the transaction to which the cheating relates, he was bound , either by law or by a legal contract, to protect, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.

The Complaint also alleges an offence said to have been committed under Section 420 I.P.C. which reads as below: 420. Cheating and dishonestly inducing delivery of property. Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.

The ingredients require to constitute an offence under Section 415 has been lucidly dealt with by this Court in the Case of Ram Jas v. State of U.P. (1970 (2) SCC 740) wherein this Court observed as below: The ingredients required to constitute the offence of cheating are-

(i) there should be fraudulent or dishonest inducement of a person by deceiving him;

(ii)(a) the person so deceived should be induced to deliver any property to any person, or to consent that any person shall retain any property; or (b) the person so deceived should be intentionally induced to do or omit to do anything which he would not do or omit if he were not so deceived; and

(ii) in cases covered by (ii)(b), the act or omission should be one which causes or is likely to cause damage or harm to the person induced in body, mind, reputation or property.

While Section 415 is an offence of cheating, Section 418 deals with cheating with knowledge that wrongful loss may ensue to a person whose interest the offender is bound to protect and Section 420 is cheating and dishonestly inducing delivery of property. In order to attract the provisions of Sections 418 and 420 the guilty intent, at the time of making the promise is a requirement and an essential ingredient thereto and subsequent failure to fulfil the promise by itself would not attract the provisions of Section 418 or 420. Mens rea is one of the essential ingredients of the offence of cheating under Section 420 . As a matter of fact illustration (g) to Section 415 makes the position clear enough to indicate that mere failure to deliver in breach of an agreement would not amount to cheating but is liable only to a civil action for breach of contract and it is this concept which obviously has weighed with the Learned Single Judge. But can the factual situation as narrated above in the longish reproduction of the complaint lend support to the observations of the Learned Judge, the answer is pivotal one but before so doing one other aspect as regards the powers under Section 482 . ought to be noticed. As noted herein before this power is to be exercised with care and caution and rather sparingly and has been so held on more occasions than one. In the case of <CITATION> 1985 SCC (Crl.) 180 this Court pointed out that the High Court should very sparingly exercise its discretion under Section 482  <CITATION> [AIR 1983 SC 1219: : 1983 SCC (Crl) 813] this Court observed: <ORG>, we cannot refrain from observing, might well have refused to invoke its inherent powers at the very threshold in order to quash the proceedings, for these powers are meant to be exercised sparingly and with circumspection when there is reason to believe that the process of law is being misused to harass a citizen.

Needless to record however and it being a settled principle of law that to exercise powers under Section 482 of the Code, the complaint in its entirety shall have to be examined on the basis of the allegation made in the complaint and <ORG> at that stage has no authority or jurisdiction to go into the matter or examine its correctness. Whatever appears on the face of the complaint shall be taken into consideration without any critical examination of the same. But the offence ought to appear ex facie on the complaint. The observation in <CITATION> [1976 (3) SCC 736] lend support to the above statement of law. (1) Where the allegations made in the complaint or the statements of the witnesses recorded in support of the same taken at their face value make out absolutely no case against the accused or the complaint does not disclose the essential ingredients of an offence which is alleged against the accused;

(2) Where the allegations made in the complaint are patently absurd and inherently improbable so that no prudent person can ever reach a conclusion that there is sufficient ground for proceeding against the accused;

(3) Where the discretion exercised by the Magistrate in issuing process is capricious and arbitrary having been based either on no evidence or on materials which are wholly irrelevant or inadmissible; and (4) Where the complaint suffers from fundamental legal defects, such as, want of sanction, or absence of a complaint by legally competent authority and the like.

The cases mentioned by us are purely illustrative and provide sufficient guidelines to indicate contingencies where <ORG> can quash proceedings.

58. The same principles would apply mutatis mutandis to a criminal complaint.

59. We now come to the question as to whether or not a clear allegation of entrustment and misappropriation of properties was made by the appellant in her complaint and, if so, was <ORG> justified in quashing the complaint at that stage. It is well settled by a long course of decisions that for the purpose of exercising its power under Section 482 . to quash a FIR or a complaint <ORG> would have to proceed entirely on the basis of the allegations made in the complaint or the documents accompanying the same per se. It has no jurisdiction to examine the correctness or otherwise of the allegations. In case no offence is committed on the allegation and the ingredients of Sections 405 and 406 , IPC are not made out, <ORG> would be justified in quashing the proceedings.

In the matter under consideration, if we try to analyse the guidelines as specified in <NAME> case (supra) can it be said that the allegations in the complaint do not make out any case against the accused nor it discloses the ingredients of an offence alleged against the accused or the allegations are patently absurd and inherently improbable so that no prudent person can ever reach to such a conclusion that there is sufficient ground for proceeding against the accused. In the present case, the complaint as noticed above does not, however, lend credence to the questions posed. It is now well settled and one need not dilate on this score, neither we intend to do so presently that the allegations in the complaint will have to be accepted on the face of it and truth or falsity of which would not be gone into by the <ORG> at this earliest stage as noticed above: whether or not allegations in the complaint were true is to be decided on the basis of the evidence led at the trial and the observations on this score in the case of <ORG> v. <NAME> [1997 SCC (Crl.) 1073] ought to be noticed. In paragraph 3 of the report this <ORG> observed: 3. We have perused the complaint carefully. In our opinion it cannot be said that the complaint did not disclose the commission of an offence. Merely because the offence was committed during the course of a commercial transaction, would not be sufficient to hold that the complaint did not warrant a trial. Whether or not the allegations in the complaint were true was to be decided on the basis of evidence to be led at the trial in the complaint case. It certainly was not a case in which the criminal trial should have been cut short. The quashing of the complaint has resulted in grave miscarriage of justice. We, therefore, without expressing any opinion on the merits of the case, allow this appeal and set aside the impugned order of the High <ORG> and restore the complaint. The learned trial Magistrate shall proceed with the complaint and dispose of it in accordance with law expeditiously.

Be it noted that in the matter of exercise of <ORG> inherent power, the only requirement is to see whether continuance of the proceeding would be a total abuse of the process of <ORG>. The Criminal Procedure Code contains a detailed procedure for investigation, charge and trial, and in the event, the High <ORG> is desirous of putting a stop to the known procedure of law, the High <ORG> must use a proper circumspection and as noticed above, very great care and caution to quash the complaint in exercise of its inherent jurisdiction. Recently, this <ORG> in <CITATION> (1999 (5) SCALE 609) observed: 5. Respondents counsel in the High <ORG> put forward mainly two contentions. First was that the dispute is purely of a civil nature and hence no prosecution should have been permitted, and the second was that the Judicial Magistrate of First Class, Gandhidham has no jurisdiction to entertain the complaint. Learned Single Judge has approved both the contentions and quashed the complaint and the order passed by the magistrate thereon.

6. On the first count learned Single Judge pointed out that there was a specific clause in the Memorandum of Understanding arrived between the parties that disputes, if any, arising between them in respect of any transaction be resolved through arbitration. <ORG> made the following observations:

Besides supplies of processed soyabean were received by the complainant company without any objection and the same have been exported by the complainant-company. The question whether the complainant-company did suffer the loss as alleged by it are the matters to be adjudicated by <ORG> and cannot be the subject matter of criminal prosecution.

7. Time and again this Court has been pointing out that the quashment of FIR or a complaint in exercise of inherent powers of <ORG> should be limited to very extreme exceptions (vide <CITATION> (1992 Suppl.(1) SCC 335 and <CITATION> (1999 (3) SCC 259)].

8. In the last referred case this court also pointed out that merely because an act has a civil profile is not sufficient to denude it of its criminal outfit. We quote the following observations:

It may be that the facts narrated in the present complaint would as well reveal a commercial transaction or money transaction. But that is hardly a reason for holding that the offence of cheating would elude from such a transaction. In fact, many a cheatings were committed in the course of commercial and also money transactions.

9. We are unable to appreciate the reasoning that the provision incorporated in the agreement for referring the disputes to arbitration is an effective substitute for a criminal prosecution when the disputed act is an offence. Arbitration is a remedy for affording reliefs to the party affected by breach of the agreement but the arbitrator cannot conduct a trial of any act which amounted to an offence albeit the same act may be connected with the discharge of any function under the agreement. Hence, those are not good reasons for <ORG> to axe down the complaint at the threshold itself. The investigating agency should have had the freedom to go into the whole gamut of the allegations and to reach a conclusion of its own. Pre-emption of such investigation would be justified only in very extreme cases as indicated in <CITATION> ).

On careful reading of the complaint, in our view, it cannot be said that the complaint does not disclose the commission of an offence. The ingredients of the offences under Sections 415 , 418 and 420 cannot be said to be totally absent on the basis of the allegations in the complaint. We, however, hasten to add that whether or not the allegations in the complaint are otherwise correct has to be decided on the basis of the evidence to be led at the trial in the complaint case but simply because of the fact that there is a remedy provided for breach of contract, that does not by itself clothe the <ORG> to come to a conclusion that civil remedy is the only remedy available to the appellant herein. Both criminal law and civil law remedy can be pursued in divers situations. As a matter of fact they are not mutually exclusive but clearly co-extensive and essentially differ in their content and consequence. The object of criminal law is to punish an offender who commits an offence against a person, property or the <ORG> for which the accused, on proof of the offence, is deprived of his liberty and in some cases even his life. This does not, however, affect civil remedies at all for suing the wrongdoer in cases like arson, accidents etc. It is anathema to suppose that when a civil remedy is available, a criminal prosecution is completely barred . The two types of actions are quite different in content, scope and impart [vide <CITATION> (supra)]. Mr. <NAME>, the learned Senior Advocate for the respondents herein being the accused persons, strongly relied upon the decisions of this <ORG> in the case of Dr. Sharma Nursing Home v. <ORG> 1998 (8) SCC 745 wherein this <ORG> observed: that findings of Section 420  has been rested only on the reception and did not go into the question whether the complainant and its accompanymen disclosed the essential ingredient of the offence under Section 420  namely, disclosed inducement. Mr. <NAME> upon reliance in Dr. <NAME> case (supra) also contended that Section 24 of the I.P.C has defined the word dishonesty to mean a deliberate intent to cause wrongful gain or wrongful loss. It has been the specific case of the complainant that from the beginning of the transaction there was a definite intent on the part of the accused persons to cause wrongful loss to the complainant. This aspect of the matter, however, has not been taken note of by the learned Single Judge. The decision of this <ORG> in Dr. <NAME> case (supra) thus does not lend any assistance to Mr. <NAME> in support of quashing of the criminal complaint. Some other decisions have also been cited but we do not feel it inclined to refer to the same except one noted above since they do not advance the case of the respondents in any way whatsoever. Considering the factual aspect of the matter, we unhesitatingly state, however, that the issue involved in the matter under consideration is not a case in which the criminal trial should have been short circuited. We, thus, without expressing any opinion on the merits of the case allow the Appeal and set aside the impugned order of the High <ORG> and restore the complaint. The learned trial Magistrate shall proceed with the complaint and dispose of the same in accordance with the law with utmost expectation. Be it clarified however that observations as above in this judgment be not taken as an expression of opinion of ours.