CHEQUE BOUNCE CASE: ACCUSED ACQUITTED DUE TO COMPLAINANT FAILED TO ESTABLISH PROOF OF INCOME.

As you aware, Most of the people are lending loan without following rules and regulation which is prescribed under the law. And Creditors are getting blank security cheque and promissory note without mentioning a single word deliberately.  In such being, cheque or promissory note are getting fraud, fabrication, material alteration by inserting wrong entry against original fact when a debtor fail to make payment as per the commitment.  As such, the Hon’ble Supreme Court has made it clear that no person can obtain judgment against the debtor towards the dishonour of cheque unless established the proof of income which means that the complainant need to provide the origin of income and submit income tax return for the verification of proof of income.  Otherwise, the complainant can’t recover the loan legally even though obtain cheque or promissory note.  

What is Joint Family Property under the Supreme Court and High Court Interpretation ?

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The moment a son is born, he gets a share in father‟s property and becomes part of the coparcenary. His right accrues to him not on the death of the father or inheritance from the father but with the very fact of his birth. Normally therefore, whenever the father gets a property from whatever source from the grandfather or from any other source, be it separate property or not, his son should have a share in that and it will become part of the joint Hindu family of his son and grandson and other members who form joint Hindu family with him. This Court observed that this position has been affected by Section 8 of the Hindu Succession Act, 1956 and, therefore, after the Act, when the son inherited the property in the situation contemplated by Section 8, he does not take it as a Karta of his own undivided family but takes it in his individual capacity. At pages 577 to 578 (of SCC): (at p.1760 of AIR) of the report, this Court dealt with the effect of Section 6 of the Hindu Succession Act, 1956 and the commentary made by Mulla, 15th Edn. Pages 924-926 as well as Mayne‟s on Hindu Law 12th edition pages 918-(This question has been considered by this Court in Commr. of Wealth Tax. Kanpur v. Chander Sen, (1986) 3 SCC 567: (AIR 1986 SC 1753),

In Amit Johri vs Deepak Johri & Ors. (24.02.2014), Ruling of Delhi High Court].It may be true that property under Hindu Law can be classified under two heads:- (i) coparcenary property; and (ii) separate property. Coparcenary property is again divisible into (i) ancestral property and (ii) joint family property which is not ancestral. This latter kind of property consists of property acquired with the aid of ancestral property and property acquired by the individual coparcener without such aid but treated by them as property of the whole family.

It may also be true that the three notions: (i) joint property, (ii) joint family property, and (iii) joint ancestral family property are not the same. In all the three things there is no doubt a common subject, property, but this is qualified in three different ways. The joint property of the English law is property held by two or more person jointly, it characteristic is survivor-ship. Analogies drawn from it to joint family property are false or likely to be false for various reasons. The essential qualification of the second class mentioned above is not joints merely, but a good deal more. Two complete strangers may be joint tenants according to English law; but in no conceivable circumstances except by adoption could they constitute a joint Hindu family, or in that capacity, hold property. In the third case, property is qualified in a two-fold manner, that it must be a joint family property and it must also be ancestral. It is obvious that there must have been a nucleus of joint family property before an ancestral joint family property can come into existence, because the word ancestral connotes descent and hence pre- existence. But because it is true that there can be no joint ancestral family property without pre-existing nucleus of joint family property, it is not correct to say that these cannot be joint family property without a pre- existing nucleus, for, that would be identifying joint family property with ancestral joint family property. Where there is ancestral joint family property, every members of the family acquires in it a right by birth which cannot be defeated by individual alienation or disposition of any kind except under certain peculiar circumstances. This is equally true of joint family property. Where a sufficient nucleus in the possession of the members joint family has come to them from a paternal ancestor, the presumption is that the whole property is ancestral and any members alleging that it is not, will have to prove his self-acquisition. Where property is admitted or proved to have been joint family property, it is subject to exactly the same legal incidents as the ancestral joint family property, but differed radically in original and essential characteristics from the joint family is the tie of sapindaship without which it is impossible to have a joint Hindu family, which such a relationship is unnecessary in the case of a joint tenancy in English laws (para 14 of the Judgement).

It may further be true that coparcenary property means and includes: (1) ancestral property, (2) acquisitions made by the coparceners with the help of ancestral property, (3) joint acquisition of the coparceners even without such help provided there was no proof of intention on their part that the property should not be treated as joint family property, and (4) separate property of the coparceners thrown inot the common stock.

In Rajani Kanta Pal v. Jaga Mohan Pal (2) the Privy Council held that " Where a member of a joint Hindu family blends his self-acquired property with property of the joint family, either by bringing his self-acquired property into a joint family account, or by bringing joint family property into his separate account, the effect is that all the property so blended becomes a joint family property." The question which falls for our decision is: Does this principle apply in regard to a property held by a Hindu female as a limited owner? In our opinion, it, is difficult to answer this question in favour of the; appellants. The rule of blending postulates that a;, coparcener who is interested in the coparcenary property and who owns separate property of his own may, (1) The Vyavahara Mayukha, Pt. 1, by Vishvanath Narayan Mandlik, 215.(2)(1923) L.R. 50 I.A. 173. by deliberate and intentional conduct treat his separate property as forming part of the coparcenary property. If it appears that property which is separately acquired has been deliberately and voluntarily thrown by the owner into the joint stock with the clear intention of abandoning his claim on the said property and with the object of assimilating it to the jointfamily property, then the said property becomes a part of the joint family estate ; in other words, the separate property of a coparcener loses its separate character by reason of the owner's conduct and get thrown into the common stock of which it becomes a part. This doctrine therefore inevitably postulates that the owner of the separate property is a coparcener who has an interest in the coparcenary property and desires to blend his separate property with the coparcenary property. There can be no doubt that the conduct on which a plea of blending is based must clearly and unequivocally show the intention of the owner of the separate property to convert his property into an item of joint family property. A mere intention to benefit the members of the family by allowing them the use of the income coming from the said property may not necessarily be enough to justify an inference of blending; but the basis of the doctrine is the existence of coparcenary and coparcenary property as well as the existence of the separate property of a coparcener. How this doctrine can be applied to the case of a Hindu female who has acquired immovable property from her father as a limited owner it is difficult to understand. Such a Hindu female is not a coparcener and as such has no interest in coparcenary property. She holds the property as a limited owner, and on her death the property has to devolve on the next reversioner. Under Hindu law it is open to a limited owner like a Hindu female succeeding to her mother's estate as in Madras, or a Hindu widow succeeding to her husband's estate, to efface herself and accelerate the reversion by surrender; but, as is well known, surrender has to be effected according to the rules recognised in that behalf. A Hindu female owning a limited estate cannot circumvent the rules of surrender and allow the members of her husband's family to treat her limited estate as part of the joint property belonging to the said family

In Sunil Kumar and another Vs. Ram Prakash and others [(1988) 2 SCC 77]" the Hon'ble Supreme Court interpreted that In a Hindu family, the Karta or Manager occupies a unique position. It is not as if anybody could become Manager of a joint Hindu family. As a general rule, the father of a family, if alive, and in his absence the senior member of the family, is alone entitled to manage the joint family property."

 Rape and murder of 11-year-old girl and Evidence Analysis

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Deceased, aged about 11 yrs, had gone alone from her house to prepare cow dung cakes – Respondent-accused forcibly took her into wheat filed with bad intentions – She raised cries and on hearing the same, PWs 2 and 3, who were passing by at a short distance, came to said filed and saw respondent strangulating deceased with a dupatta – On seeing them, respondent ran away and when they tried to chase him, he could not be caught – Trial Judge convicted respondent and sentenced him to death – High Court allowed appeal and acquitted respondent and rejected capital sentence reference – High Court disbelieved statement of independent eyewitnesses, PWs 2 and 3 on ground of contradictions between statements made under S. 161 CrPC and their evidence before court and delay in lodging of FIR – Respondent further submitted that non-recovery of chunni (dupatta i.e. a kind of stole), which was alleged to have been used for strangulating victim was fatal to prosecution case – Held, PWs 2 and 3 are not related to deceased, and are independent eyewitnesses who actually witnessed occurrence – Alleged contradictions are trivial in nature and  have not affected prosecution case, which is also supported by medical evidence – Analysis and ultimate conclusion of High Court is contrary to acceptable and reliable material placed on record by prosecution – Accused first committed offence of rape and then murdered the deceased – Sentence of RI for life, imposed – Criminal Procedure Code, 1973, Ss. 374 and 161.

 B. Criminal Procedure Code, 1973 – S. 154 – FIR – Delay in FIR – If reasonably explained – Occurrence at 4.30 p.m. – FIR LODGED AT 11.05 P.M. – Rape and murder of 11-year-old minor girl in village – Father of victim (PW 1), a village, on hearing of incident through PWs 2 and 3 (who had been passing by), rushed to spot, made arrangements to cover body of his daughter, tried for some time to trace accused, and thereafter, reached police station which was at a distance of 2 km – Held, it cannot be construed that there was any unreasonable and unexplained delay which goes to root of prosecution case – Delay has been properly explained by PW 1 – Even otherwise delay cannot be said to be abnormal as erroneously observed by High Court – Penal Code, 1860 – Ss. 376 and 302.

 C. Criminal Procedure Code, 1973 – S. 154 – FIR – All details as spoken to by PWs 1, 2 and 3 were not mentioned in FIR – Held, trial court rightly observed that FIR need not be encyclopaedic – It is just an intimation of occurrence of an incident and it need not contain all facts related to said incident. 

D. Criminal Trial – Investigation – Defective or illegal investigation – Effect of – Death caused by strangulation – Prosecution failed to recover chunni (dupatta) which was alleged to have been used for strangulating victim but, remaining material objects, evidence of prosecution witnesses, statement of doctor (PW 4) who conducted post-mortem, his opinion, etc. amply prove prosecution case – Hence, claim of respondent regarding defect in prosecution evidence, rejected – Penal Code, 1860 – Ss. 376 and 302 – Rape and murder. 

E. Penal Code, 1860 – Ss. 376 and 302 – Rape and murder of minor – Medical evidence – Appreciation of – Absence of report of Sperm Detection Test – Effect of – Cause of death of deceased was asphyxia due to strangulation and also ante-mortem injuries – Conclusion of PW 4 (doctor) fully supported prosecution case that deceased was raped before strangulation – Blood was seen in vagina of deceased – Held, in absence of abovesaid report, prosecution case cannot be doubted about rape, particularly, in the light of categorical findings of PW 4 that murdered victim’s hymen was found to have been ruptured – Other prosecution witnesses also stated about injuries on her private parts and oozing of blood – Medical evidence proved that victim was raped before her death and she dies on 5-3-2002 – Prosecution story is fully corroborated with medical evidence on record – High Court failed to give importance to said evidence. 

F. Penal Code, 1860 – Ss. 302 and 376 – Rape and murder of 11-year-old girl – Conviction restored – Sentence – Incident occurred in year 2002 – Trial court imposed death – High Court acquitted respondent – Held, rigorous imprisonment for life would meet ends of justice.

 G. Crimes Against Women and Children – Rape – Primary concern both at national and international level is about devastating increase in rape cases and cases relating to crimes against women – India is no exception to it – Although statutory provisions provide strict penal action against such offenders, it is for courts to ultimately decide whether such incident has occurred or not – Courts should be more cautious in appreciating evidence and accused should not be left scot-free merely on flimsy grounds – In present case, accused had committed rape which repels moral conscience as he chose a girl of 11 yrs to satisfy his lust and subsequently murdered her – Penal Code, 1860, S. 376.

(Refer Case (2012) 9  Supreme Court Cases 742 STATE OF UTTAR PRADESH Vs MUNESH Compiled by Tamil Nadu Judicial Acadmy)