Wipro Limited, Cuttack v. Prasanna Kumar Baral

Omission to serve notice upon the accused under Section 138(b)
of the Negotiable Instruments Act is an incurable defect.

In this case, the appeal is directed against the order passed by S.D.J.M., Sadar, Cuttack in I.CC Case No. 57 of 1993 acquitting the respondent of the offence u/s 138 of NI Act by invoking the provision of Section 255(1) of the Code. The appellant being the Senior Branch Supervisor of the company “Wipro Limited” was the complainant, whereas the respondent being the proprietor of M/S. Premier Agency was the accused. According to the complainant, the accused used to purchase goods from the Branch Office of the complainant-company and used to sell the articles so purchased by it to customers. Accordingly, the accused requested the complainant-company to dispatch some stock which was dispatched on the same day vide Invoice No. 1013 worth Rs.22,887.45 and as against such transaction, the respondentaccused issued a cheque bearing No. 445482 of but when the said cheque was presented, the same was dishonoured.

Thereafter, he filed the aforesaid complaint against the respondent-accused for refusing to make payment for the cheque. The Trial Court however, came to a conclusion that the complainant had not been able to establish the existence of any debt or liability against the respondent-accused and in discharge of such liability, the cheque was issued by the accused. Amicus Curiae submitted that when the accused had admitted the business transaction between him and the appellant, it could not be considered that the cheque issued by the respondent-accused was not on account of any discharge of debt or liability, but the learned trial Court by ignoring the presumption available in favour of the appellant had mis-appreciated the evidence to hold that the accused had not issued the cheque for discharge of debt or liability and thereby, had erroneously acquitted the respondent-accused. Amicus Curiae further submitted that in a prosecution u/s 138 of NI Act, the burden is on the accused to rebut the presumption that the cheque was issued not for discharge of any debt or other liability, but it is very clear from the evidence on record that such presumption was never discharged by the accused and thereby, the trial Court had committed gross error in holding the accused not guilty of the offence.

This Court observed that the cheque was stated to be issued by the proprietor for M/S. Premier Agency and the demand notice had only been issued against M/S. Premier Agency, but while instituting complaint, the name of Prasanna Kumar Baral had been described as accused in the cause title, but ultimately, no demand notice was ever issued against said Prasanna Kumar Baral in individual capacity and the learned trial Court had also held by appreciating the evidence on record that notice u/s 138(b) of N.I. Act had not been served upon the accused.

On the contrary, M/S. Premier Agency had not been made as an accused, although Mr.Prasanna Kumar Baral had been described as an accused in the complaint being the proprietor of M/S. Premier Agency. Section 141 of N.I. Act mandates that if the person committing an offence u/s 138 of N.I. Act is a Company, every persons who, at the time of offence was committed, was incharge of, and was responsible to the Company for the conduct of business of the Company, as well as the Company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against. In addition, the learned trial Court on appreciation of evidence had also come to a conclusion that notice u/s 138(b) of N.I. Act had not been served upon the accused, which by itself is a incurable defect. Accordingly, this Court upheld the order of the Trial Court.

Maghu Hansda v. State of Orissa

Omission to mention names of the accused in the inquest
report is not per se fatal to the prosecution case.

In this case, the appellant has challenged the order of conviction u/s 302 IPC. The case of the prosecution was on 03.06.2003 at about 5pm while Kalia Soren(hereinafter referred to as the “deceased”) and PW1 Pratap Hembram were returning to their village by riding bicycle after selling rice at Gorumahisami weekly market, on the way near Railway level crossing fatak (Gate) at village Kalimati, the Appellant and another came out by the side of a Khajuri(Date Palm Tree) and the other person caught hold of the bicycle of the deceased, who was moving little bit ahead of PW1 and the Appellant Maghu Hansda, to whom PW1 could identify, brought out a Bhujali from his towel and dealt blows on the chest of the deceased, as a result, the deceased fell down on the ground and out of fear, PW1 returned back to village Kalimati by riding his bicycle as he could not find any male persons and remained in the village Kalimati in the night. Due to assault of the Appellant and the other person by means of Bhujali, the deceased died at the spot.

The Appellant has argued and criticized the impugned judgment mainly on grounds- firstly, the evidence of PW1 was not believable, secondly, the absence of names of Assailants/ Appellant in the inquest report itself suggestive of FIR to be ante-timed and after thought and came to be prepared after due deliberation and consultation, thirdly, non-examination of witnesses to disclosure statement.

This Court has placed reliance on Brahm Swaroop and another v. State of Uttar Pradesh, (2011) 6 SCC 288, wherein after noticing the names of the accused persons to have not been filled up in the inquest report, the Apex Court held that omission in the inquest report are not sufficient to put the prosecution out of the Court. This Court further held that merely because the IO had committed a mistake to omit to mention the names of the assailants in the inquest report or he was not diligent in this regard, it does not necessarily mean by implication or otherwise that the reliable or clinching evidence adduced by the witnesses should be discarded by the Court on the selfsame ground. Hence, in the backdrop of preceding discussion, the argument advanced by the Appellant that omission to mention the names of Assailant in the inquest report to put the FIR as antetimed and product of embellishment merits no consideration. Consequently, this Court upheld the order of conviction.

Bineet Kumar Patel & Anr. v. State

The Court rejected petition seeking to quash the charge rape against the petitioner
basing the meaning of consent under Section 90, IPC and Section 114-A, Evidence Act.

In this case, the petitioner has filed this petition u/s 482 CrPC to drop the offence u/s 376 of IPC from the proceeding. The case of the prosecution is that on 07.08.2009 at about 11.45 AM, OP No.2 lodged a FIR against the petitioners before the IIC Loisingha P.S. alleging therein that on the allurement of marriage, petitioner No.1 had been keeping physical relationship with her for since last six months and as a consequence thereof, when she became pregnant of two months, the petitioner No.1 is deceiving her and petitioner No.2 had been threatening to kill her if she disclose the incident.

The petitioner contended that the allegation on record never discloses a case of rape against the petitioner No.1 and by no stretch of imagination, the sexual act as alleged against the petitioner No.1 by the victim would vindicate the commission of offence U/Ss. 376 of IPC, but not withstanding to the submission of charge sheet against the petitioners for offence U/Ss. 417/506/34 of the IPC.

This Court held that taking into account the definition of consent as provided in Section 90 of IPC together with presumption as available U/S.114-A of Indian Evidence Act, it cannot be said at this stage that the uncontroverted allegation made in the FIR and the evidence collected in support of the same do not disclose the ingredients of Section 375 of IPC and the commission for other offences and make out a case against the accused, so as to quash the criminal proceeding or the offence u/s 376 of IPC. Therefore, the petition was rejected.

Dr. Biswa Mohan Mishra v. State of Orissa

The Court refused to quash the charge under Section 304-A, IPC against a
doctor for gross negligence in treating a patient resulting in her death.

In this case, the petitioner through this petition u/s 482 CrPC prayed for quashing the proceeding initiated against him. The case of the prosecution was that the petitioner was a Doctor and attached to Bhubaneswar Municipal Corporation Hospital at Old Town, Bhubaneswar as a Medicine Specialist. At the relevant time of occurrence on 01.07.2009 at about 6 pm, Madhusmita Sahoo (hereinafter “deceased”) was admitted at bed No. 36 in Medicine Ward of BMC Hospital and she was under the treatment of the petitioner. As the deceased was having low haemoglobin and her condition was getting worse, her uncle requested the petitioner and staff of BMC Hospital to give her blood transfusion immediately for her treatment, but although they assured to give the blood on 02.07.2009, her condition became serious at about 11 P.M. on 01.07.2009 and despite being requested by Doctor Sujata for several times, the petitioner did not respond and thereby, the informant also requested the petitioner, but he refused and asked him to contact with Doctor B.N.Das Mohapatra Surgery Specialist to attend the patient and the said Doctor on being requested over phone assured to direct the petitioner to attend the patient immediately, but unfortunately the deceased died in the midnight due to negligence of the petitioner.

The petitioner submitted that there is absolutely no material against the petitioner to find out any prima facie case U/s. 304-A of IPC. It is also advanced for the Petitioner that had the Ultra Sonography(USG) of abdomen and pelvis of the deceased been done in time, the diagnosis would have been established and treatment could have been properly provided to the patient(deceased) as opined by the District Medical Board (DMB), but the informant being advised in this regard had failed to conduct the USG and thereby, the family members of the patient were negligent. The Government advocate submitted that despite repeated telephone calls and requests made by Dr.Sujata Samanta, the petitioner refused to come to attend the patient, rather he replied to shift the patient to any private Nursing Home which was a clear-cut violation of public duty and constitute gross negligence and the above fact stands justified by the Call Details Report (CDR) of the petitioner.

This Court placed reliance on decision of the Apex Court in the case of Dr. Suresh Gupta Vrs. Government of NCT of Delhi and another; (2004) 6 SCC 422, wherein it has been held that where a patient dies due to the negligent medical treatment of the Doctor, the Doctor can be made liable in civil law for paying compensation and damages in tort and at the same time, if the degree of negligence is so gross and his act was so reckless as to endanger the life of the patient, he would also be made criminally liable for offence U/S. 304-A of IPC.

This Court held that it is of course true whether the deceased died on account of gross negligence of the Petitioner is a question of fact which can be answered in the trial after evidence is led, but on scrutinizing the materials so collected by the Investigating Agency, there appears some prima facie case against the Petitioner vindicating a trial in this case. Therefore, the application of the petitioner was rejected.