Himachal Pradesh High Court
Sanjay Sharma vs Dharam Dass Pathania on 12 August, 2016
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.MMO No. 163 of 2016 with Cr.MMO Nos. 161 and 162 of 2016 .
Date of decision: 12.8.2016
1. Cr.MMO No. 163 of 2016 Sanjay Sharma. ...Petitioner Versus Dharam Dass Pathania. ...Respondent
2. Cr.MMO No. 161 of 2016 of Sanjay Sharma. ...Petitioner Versus Sudershan Mahajan. ...Respondent
3.
rt
Cr.MMO No. 162 of 2016
Sanjay Sharma. ...Petitioner
Versus
Sudershan Mahajan. ...Respondent
Coram
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge. Whether approved for reporting?1Yes For the Petitioner: Mr. Adarsh Sharma, Advocate.
For the Respondent(s): Mr.G.S. Rathour, Advocate, for the respondent in Cr.MMO No. 163 of 2016.
Mr.J.L. Bhardwaj, Advocate, for the respondent in Cr.MMO Nos.161 & 162 of 2016.
Tarlok Singh Chauhan J. (Oral).
Since common question of law and fact arise for consideration in these petitions, they are taken up together for hearing and are been disposed of by a common judgment.
2. The petitioner appears to have been facing various complaints under Section 138 of the Negotiable Instruments Act, 1881 (herein after referred to as the 'Act' for short). The complaints have been instituted on the allegation that the respondents were business partners of M/s Rahul Health Care, Plot No. 147 and 149, EPIP-1, Whether the reporters of the local papers may be allowed to see the Judgment? Yes ::: Downloaded on - 15/04/2017 21:01:18 :::HCHP 2 Cr.MMO Nos. 163, 161 & 162 of 2016 Jharmajri, Baddi, District Solan, H.P. and retired from the same in July, 2014. After settlement of account, the petitioner owed a sum of `32,50,000/- and in lieu thereof he issued six post dated multicity .
cheques.
3. One such cheque bearing No. 110308, dated 30.9.2014 amounting to `6,00,000/- was presented for encashment, however, the same was dishonoured and returned with the remarks of "insufficient funds". Likewise, cheque bearing No. 110303, dated 30.10.2014, amounting to `6,00,000/- and cheque bearing No. rt 110306, dated 30.1.2015, amounting to `2,50,000/-, which were both dishonoured and returned with the identical remarks are subject matter of Cr.MMO Nos. 161 and 162 of 2016, respectively.
4. Statutory notice was served upon the petitioner, but he failed to pay the disputed amount, constraining the respondents to initiate criminal proceedings against the petitioner under Section 138 of the Act. In these proceedings, it has been alleged by the petitioner that on 8.3.2014, respondent in Cr.MMO No. 163 of 2016 and Smt. Sudershan Mahajan (respondent in Cr.MMO Nos. 161 and 162 of 2016) had entered into an agreement with the continuing partners of the firm i.e. petitioner as well as Sh. Vikas Kapoor. In terms of the agreement, both the respondents had agreed to retire from the partnership in lieu of `65,00,000/- to be paid by the petitioner and Sh. Vikas Kapoor. Petitioner issued post dated cheques of different dates and of different amounts, total amounting to `32,50,000/-, but that agreement was not signed by one of the partner, namely, Smt. Sudershan Mahajan and it was also not notarized by the Notary Public. It is further averred that since the earlier agreement was not executed, therefore, a modified partnership deed was executed on ::: Downloaded on - 15/04/2017 21:01:18 :::HCHP 3 Cr.MMO Nos. 163, 161 & 162 of 2016 17.7.2014, whereby both the respondents relinquished their respective shares from the firm and it was specifically agreed that the continuing partners will pay severally or collectively a consideration .
amount of `70,00,000/- to the retiring partners in equal proportion i.e. `35,00,000/- each and the retiring partners admitted that as a consequence of payment of `70,00,000/-, there exist no claim whatsoever of any kind against the partnership firm as well as the of continuing partners of the firm.
5. Pursuant to the aforesaid deed, the respondents tendered rt their resignations on 17.7.2014, wherein they categorically stated that they had no claim whatsoever against the firm. It is further averred that pursuant to the modified deed dated 17.7.2014, the amount as agreed stood paid to the retiring partners vide bank draft dated 18.7.2014, which was in equal proportion i.e. `35,00,000/- each to the respondents. Lastly, it is averred that at the time of execution of the modified deed, the petitioner was assured that the respondents would return the post dated cheques amounting to `32,50,000/-
each, but they with malafide intention did not return the same and rather fraudulently in connivance with the Notary Public got notarized the agreement dated 8.3.2014 on 18.7.2014 and made it the basis of their complaints and therefore, the complaints as also the order whereby cognizance has been taken be set aside.
I have heard the learned counsel for the parties and have also gone through the records of the case.
6. Section 138 of the Negotiable Instruments Act, 1881 reads as under:
"138. Dishonour of cheque for insufficiency, etc., of funds in the accounts. - Where any cheque drawn by a person on an account maintained by him with a banker for payment of any ::: Downloaded on - 15/04/2017 21:01:18 :::HCHP 4 Cr.MMO Nos. 163, 161 & 162 of 2016 amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to .
honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provisions of this Act, be punished with imprisonment for "a term which may extend to two year", or with fine which may extend to twice the amount of the of cheque, or with both:
Provided that nothing contained in this section shall apply unless- rt
(a) The cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier.
(b) The payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice, in writing, to the drawer, of the cheque, "within thirty days" of the receipt of information by him from the bank regarding the return of the cheques as unpaid, and
(c) The drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice.
Explanation: For the purpose of this section, "debt or other liability" means a legally enforceable debt or other liability."
7. Section 139 of the Negotiable Instruments Act, 1881 provides that there shall be a presumption in favor of holder of a cheque as to the debt or liability. It reads as under:
"139. Presumption in favour of holder. - It shall be presumed, unless the Contrary is proved, that the holder of a cheque received the cheque of the nature referred to in section 138 for the discharge, in whole or in part, or any debt or other liability."
8. Section 140 of the Negotiable Instruments Act, 1881 prohibits what cannot be a defence in a prosecution in respect of ::: Downloaded on - 15/04/2017 21:01:18 :::HCHP 5 Cr.MMO Nos. 163, 161 & 162 of 2016 offence punishable under Section 138 of the N.I. Act. It reads as under:
"140. Defence which may not be allowed in any .
prosecution under section 138. -Defence which may not be allowed in any prosecution under section 138 It shall not be a defence in a prosecution of an offence under section 138 that the drawer had no reason to believe when he issued the cheque that the cheque may be dishonoured on presentment for the reasons stated in that section."
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9. Evidently, the petitioner has challenged the proceedings of criminal complaint cases before this Court taking therein only factual rt defences. Whether the cheques were given only as security or not, or whether there was outstanding liability or not is a question of fact, which can be determined only by the trial Court after recording evidence of the parties. This Court has to refrain from expressing any view on disputed question of fact while dealing with a petition under Section 482 Cr.P.C. to come to a conclusion as to whether offence is made out or not. This Court further has to refrain from going into the factual aspects of the matter, which are not admitted by the parties.
This was precisely held by the Hon'ble Supreme Court in its recent decision in HMT Watches Ltd. vs. M.A. Abida and another (2015) 11 SCC 776, in the following terms:
"10. Having heard learned counsel for the parties, we are of the view that the accused (respondent no.1) challenged the proceedings of criminal complaint cases before the High Court, taking factual defences. Whether the cheques were given as security or not, or whether there was outstanding liability or not is a question of fact which could have been determined only by the trial court after recording evidence of the parties. In our opinion, the High Court should not have expressed its view on the disputed questions of fact in a petition under Section 482 of the Code of Criminal Procedure, to come to a conclusion that the offence is not made out. The High Court has erred in law in going ::: Downloaded on - 15/04/2017 21:01:18 :::HCHP 6 Cr.MMO Nos. 163, 161 & 162 of 2016 into the factual aspects of the matter which were not admitted between the parties. The High Court further erred in observing that Section 138(b) of N.I. Act stood uncomplied, even though the respondent no.1 (accused) had admitted that he replied the notice .
issued by the complainant. Also, the fact, as to whether the signatory of demand notice was authorized by the complainant company or not, could not have been examined by the High Court in its jurisdiction under Section 482 of the Code of Criminal Procedure when such plea was controverted by the complainant before it.
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11. In Suryalakshmi Cotton Mills Limited v. Rajvir Industries Limited and others, (2008) 13 SCC 678, this Court has made rt following observations explaining the parameters of jurisdiction of the High Court in exercising its jurisdiction under Section 482 of the Code of Criminal Procedure: -
"17. The parameters of jurisdiction of the High Court in exercising its jurisdiction under Section 482 of the Code of Criminal Procedure is now well settled. Although it is of wide amplitude, a great deal of caution is also required in its exercise. What is required is application of the well-
known legal principles involved in the matter.
* * *
22. Ordinarily, a defence of an accused although appears to be plausible should not be taken into consideration for exercise of the said jurisdiction. Yet again, the High Court at that stage would not ordinarily enter into a disputed question of fact. It, however, does not mean that documents of unimpeachable character should not be taken into consideration at any cost for the purpose of finding out as to whether continuance of the criminal proceedings would amount to an abuse of process of court or that the complaint petition is filed for causing mere harassment to the accused. While we are not oblivious of the fact that although a large number of disputes should ordinarily be determined only by the civil courts, but criminal cases are filed only for achieving the ultimate goal, namely, to force the accused to pay the amount due to the complainant immediately. The courts on the one hand should not encourage such a practice; but, on the other, ::: Downloaded on - 15/04/2017 21:01:18 :::HCHP 7 Cr.MMO Nos. 163, 161 & 162 of 2016 cannot also travel beyond its jurisdiction to interfere with the proceeding which is otherwise genuine. The courts cannot also lose sight of the fact that in certain matters, both civil proceedings and criminal proceedings would be .
maintainable.'
12. In Rallis India Limited v. Poduru Vidya Bhushan and others, (2011) 13 SCC 88, this Court expressed its views on this point as under:-
of "12. At the threshold, the High Court should not have interfered with the cognizance of the complaints having been taken by the trial court. The High Court could not rt have discharged the respondents of the said liability at the threshold. Unless the parties are given opportunity to lead evidence, it is not possible to come to a definite conclusion as to what was the date when the earlier partnership was dissolved and since what date the respondents ceased to be the partners of the firm."
13. In view of the law laid down by this Court as above, in the present case High Court exceeded its jurisdiction by giving its opinion on disputed questions of fact, before the trial court."
10. Mr. Adarsh Sharma, learned counsel for the petitioner would then forcefully argue that without arranging the partnership firm, the complaints are not maintainable. In support of such submission he would rely upon a judgment delivered by this court in Vijay Kumar Dange Vs. Saroj Thakur and another Latest HLJ 2015 (HP) 1138.
11. Even, this submission of the petitioner is equally without force, as the question posed in Vijay Kumar Dange case (supra) was as to whether the employees, directors etc. of a company can be arraigned as accused without arraigning the company as an accused, particularly when no offence is alleged to have been committed by these accused in their individual capacity and the offence was said to ::: Downloaded on - 15/04/2017 21:01:18 :::HCHP 8 Cr.MMO Nos. 163, 161 & 162 of 2016 have been committed only by the company. While answering such question, this Court observed as under:-
"4. The issue in the instant case is no longer res integra in view .
of the decision rendered by a larger Bench of Hon'ble Supreme Court in Aneeta Hada Vs. Godfather Travels and Tours Private Limited and batch matters, (2012) 5 SCC 661, wherein the Hon'ble Supreme Court held as follows:-
"58. Applying the doctrine of strict construction, we are of the considered opinion that commission of offence by the of company is an express condition precedent to attract the vicarious liability of others. Thus, the words "as well as the company" appearing in the section make it absolutely rt unmistakable clear that when the company can be prosecuted, then only the persons mentioned in the other categories could be vicariously liable for the offence subject to the averments in the petition and proof thereof. One cannot be oblivious of the fact that the company is a juristic person and it has its own respectability. If a finding is recorded against it, it would create a concavity in its reputation. There can be situations when the corporate reputation is affected when a Director is indicated.
59. In view of our aforesaid analysis, we arrive at the irresistible conclusion that for maintaining the prosecution under Section 141 of the Act, arraigning of a company as an accused is imperative. The other categories of offenders can only be brought in the dragnet on the touchstone of vicarious liability as the same has been stipulated in the provision itself. We say so on the basis of the ratio laid down in C.V. Parekh which is a three-Judge Bench decision. Thus, the view expressed in Sheorathan Agarwal does not correctly lay down the law and, accordingly, is herby overruled. The decision in Anil Hada is overruled with the qualifier as stated in para 51. The decision in Modi Distillery has to be treated to be restricted to its own facts as has been explained by us hereinabove."
5. This Court in Kuldeep Thakur Vs. M/s Mohar Mahesh Construction Pvt.Ltd., Kullu through its Managing Director 2012 (2) S.L.C. 854, held as follows:-
"10. The complaint filed is only against the company through its Managing Director. Shri Mohan Singh Thakur ::: Downloaded on - 15/04/2017 21:01:18 :::HCHP 9 Cr.MMO Nos. 163, 161 & 162 of 2016 clearly stated before the Court that he was only Director not the Managing Director of the company. Although in his statement under Section 313 of the Code of Criminal Procedure he admitted having signed the cheque but .
neither has he been impleaded as an accused nor statutory notice of demand was sent to him. The notice is only addressed in the name of the proprietor not even in the name of the Managing Director. Without making any allegation against any of the Directors or so to say there is even no mention in the complaint as to who had issued of and signed the cheque. The proceedings against Mohar Singh were not maintainable and there is no allegation that he was in charge of and responsible to the company for the rt conduct of its business.
11. Section 141 of the Act deals with the offences by the Company which reads as under:
"Offences by companies.
(1) If the person committing an offence under section 138 is a company, every person who, at the time the offence was committed, was in charge of, and was responsible to the company for the conduct of the 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 and proceeded against and punished accordingly];
Provided that nothing contained in this sub-section shall render any person liable to punishment if he proves that the offence was committed without his knowledge, or that he had exercised all due diligence to prevent the commission of such offence.
2["Provided further that where a person is nominated as a Director of a company by virtue of his holding any office or employment in the Central Government or State Government or a financial corporation owned or controlled by the Central Government or the State Government, as the case may be, he shall not be liable for prosecution under this Chapter.] (2) Notwithstanding anything contained in sub-section (1), where any offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is attribute to, any neglect on the part of, any director, Manager, ::: Downloaded on - 15/04/2017 21:01:18 :::HCHP 10 Cr.MMO Nos. 163, 161 & 162 of 2016 secretary, or other office of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly.
.
Explanation: For the purpose of this section. -
(a) "Company" means anybody corporate and includes a firm or other association of individuals; and (b) "Director", in relating to a firm, means a partner in the firm."
12. The perusal of the aforesaid Section reveals that when the company is the principle offender under Section 138 of of the Act remaining persons are made offender by virtue of legal fiction created by the legislature as per its indictments hence the actual offence should have been rt committed by the Company, and then alone, the other two categories of persons can also become liable for the offence. The statutory notice, in the instant case has been issued to the proprietor of the respondent; whereas the company has the Managing Director and it was not even issued to the signatory of the cheque thereof, as noted above. The provision of Section 138 of the Act casts criminal liability punishable with imprisonment or fine or with both on a person who issues a cheque towards discharge of a debt or liability as a whole or in part and the cheque is dishonoured by the Bank on presentation.
But the complaint lacks such averments. Further, Section 141 extends such criminal liability in case of a Company to every person who at the time of the offence, was incharge of, and was responsible for the conduct of the business of the Company. By a deeming provision contained in Section 141 of the Act, such a person is vicariously liable to be held guilty for the offence under Section 138 and punished accordingly. Section 138 is the charging section creating criminal liability incase of dishonour of a cheque and its main ingredients are:
(i) Issuance of a cheque.
(ii) Presentation of the cheque
(iii) Dishonour of the cheque
(iv) Service of statutory notice on the person sought to be made liable, and
(v) Non-compliance or non-payment in pursuance of the notice within 15 days of the receipt of the notice.::: Downloaded on - 15/04/2017 21:01:18 :::HCHP 11 Cr.MMO Nos. 163, 161 & 162 of 2016
14. As already stated above, the statutory demand notice was not addressed/ sent to Mohar Singh. There is also no averment against him in the complaint nor is he impleaded as an accused. Further he is also not the Managing .
Director of the respondent company. Even the statutory notice has not been sent to the company through Managing Director. Therefore, the basis of the complaint itself is wrong and not in conformity with law. Thus, the complaint also suffers from mandatory requirements, and in these circumstances, against Mohar Singh, no presumption can of be raised as is sought by the learned counsel for the appellant, in any capacity. Hence the complaint was rightly dismissed."
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6. In Raj Pal Kapil Vs. State of Himachal Pradesh and another 2013 (3) S.L.C. 1248, reliance was placed on the judgment rendered in Aneeta Hada's case supra and it was held as follows:-
"6. Precisely the question is whether in the absence of the Company, the petitioner can be prosecuted as a signatory of the cheque, the answer is "NO". In absence of the Company, the complaint is not maintainable.
7. Section 141 of the Act reads as under:
"Offence by companies-(1) If the person committing an offence under section 138 is a company, every person who, at the time the offence was committed, was in charge of, and was responsible to the company for the conduct of the 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 and punished accordingly: Provided that nothing contained in this sub-section shall render any person liable to punishment if he proves that the offence was committed without his knowledge, or that he had exercised all due diligence to prevent the commission of such offence:
Provided further that where a person is nominated as a Director of a company by virtue of his holding any offence or employment in the Central Government or State Government or a financial corporation owned or controlled by the Central Government or the State Government, as the case may be, he shall not be liable for prosecution under this Chapter.::: Downloaded on - 15/04/2017 21:01:18 :::HCHP 12 Cr.MMO Nos. 163, 161 & 162 of 2016
(2) Notwithstanding anything contained in sub-section (1), where any offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is .
attributable to, any neglect on the part of, any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly. Explanation-For the purposes of this section,-
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(a) "company" means anybody corporate and includes a firm or other association of individuals; and (b) "director", in relation to a firm, means a partner in the firm.]"
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8. Section aforesaid uses the term "person" and refers it to a company. The company is a juristic person. The concept of corporate criminal liability is attracted to a corporation and company and it is so luminescent from the language employed under this Section. This enactment is one where the company itself and certain categories of officers in certain circumstances are deemed to be guilty of the offence.
9. The company can have criminal liability fastened on it, and if a group of persons that guide the business of the companies have the criminal intent, that would be imputed to the body corporate. On a reference to the larger Bench in Aneeta Hada versus Godfather Travels and Tours, (P) Ltd., (2012) 5 SCC 661, three judges of the Supreme Court examined this preposition and observed that Section 141 of the Act clearly stipulates that when a person which is a company commits an offence, then certain categories of persons in charge as well as the company would be deemed to be liable for the offences under Section 138.
Thus, the statutory intendment is absolutely plain. The provision makes the functionaries and the companies to be liable and that is by deeming fiction. A deeming fiction has its own signification.
10. It was further observed that it is the bounden duty of the court to ascertain for what purpose the legal fiction has been created. It is also the duty of the court to imagine the fiction with all real consequences and instances unless prohibited from doing so. That apart, the use of the term ::: Downloaded on - 15/04/2017 21:01:18 :::HCHP 13 Cr.MMO Nos. 163, 161 & 162 of 2016 "deemed"(used in the present case in Section 141) has to be read in its context and further, the fullest logical purpose and import are to be understood. It is because in modern legislation, the term "deemed" has been used for .
manifold purposes. The object of the legislature has to be kept in mind.
11. The apex Court examined the provisions of Section 141 of the Act abovevis-à-vis Section 85 of the Information Technology Act, 2000 and relevant provisions of the Essential Commodities Act as a logical sequitur, precisely of holding that the prosecution of the Director or the authorized signatory of the cheque without arraigning of the company is not maintainable, in the absence of any rt legal bar.
12. Now, in the present case, no legal bar has been impleaded to array the company as an accused. Admittedly, the company i.e. M/s Swiftron Courier and Cargo Ltd. has not been made an accused. As such, the complaint is not maintainable against the petitioner without its impleadment. Hence, the impugned order of summoning the petitioner being signatory of the cheque is quashed and set aside. Consequently, the complaint stands dismissed so also the pending applications, if any."
7. Similar issue came up before the Hon'ble Supreme Court in Anil Gupta Vs. Star India Private Limited and another (2014) 10 SCC 373, wherein the ratio laid down by the Hon'ble Supreme Court in Aneeta Hada's case supra was reiterated.
8. Yet again a similar issue came up before the Hon'ble Supreme Court recently in Gunmala Sales Private Limited Vs. Anu Mehta and others (2015) 1 SCC 103, wherein again the ratio, as laid down in Aneeta Hada's case supra was followed.
9. Taking into consideration the exposition of law, as laid down by the Hon'ble Supreme Court in Aneeta Hada's case and thereafter subsequently by this Court and reiterated by the Hon'ble Supreme Court to the effect that no complaint under Section 138 of the Act against the employees or Directors of the Company would be maintainable without arraigning the Company itself."
::: Downloaded on - 15/04/2017 21:01:18 :::HCHP 14 Cr.MMO Nos. 163, 161 & 162 of 201612. Indisputably, the instant case only deals with the inter see claim between the retiring partners and continuing partners and does not touch upon any dispute where the partnership firm would be .
involved. No offence is alleged to have been committed by the partnership firm and therefore, the enunciation of law as relied upon by the learned counsel for the petitioner in Vijay Kumar Dange case (supra) is totally misplaced.
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13. The Hon'ble Supreme Court in Ambica Quarry Works v. State of Gujarat and others (1987) 1 SCC 213 has held that the ratio of any rt decision must be understood in the background of the facts of that case.
Relying on Quinn v. Leathem (1901) AC 495, it has been held that the case is only an authority for what it actually decides, and not what logically follows from it.
14. Even otherwise, the ratio of any decision has to be understood in the background of the facts of that case. Relying on Quinn v. Leathem (1901) AC 495, it has been held that the case is only an authority for what it actually decides, and not what logically follows from it.
15. Lord Halsbury in the case of Quinn (supra) has ruled thus:-
".....there are two observations of a general character which I wish to make, and one is to repeat what I have very often said before, that every judgment must be read as applicable to the particular facts proved, or assumed to be proved, since the generality of the expressions which may be found there are not intended to be expositions of the whole law, but governed and qualified by the particular facts of the case in which such expressions are to be found. The other is that a case is only an authority for what it actually decides. I entirely deny that it can be quoted for a proposition that may seem to follow logically from it. Such a mode of reasoning assumes that the law is necessarily a logical code, whereas every lawyer must acknowledge that the law is not always logical at all."::: Downloaded on - 15/04/2017 21:01:18 :::HCHP 15 Cr.MMO Nos. 163, 161 & 162 of 2016
(Emphasis supplied)
16. In Krishena Kumar v. Union of India and others (1990) 4 SCC 207, the Constitution Bench, while dealing with the concept of .
ratio decidendi, has referred to Caledonian Railway Co. v. Walker's Trustees (1882) 7 App Cas 259 :46 LT 826 (HL) and Quinn (supra) and the observations made by Sir Frederick Pollock and thereafter proceeded to state as follows:-
of "The ratio decidendi is the underlying principle, namely, the general reasons or the general grounds upon which the decision is based on the test or abstract from the specific peculiarities of rt the particular case which gives rise to the decision. The ratio decidendi has to be ascertained by an analysis of the facts of the case and the process of reasoning involving the major premise consisting of a pre-existing rule of law, either statutory or judge- made, and a minor premise consisting of the material facts of the case under immediate consideration. If it is not clear, it is not the duty of the court to spell it out with difficulty in order to be bound by it. In the words of Halsbury (4th edn., Vol.26, para 573) "The concrete decision alone is binding between the parties to it but it is the abstract ratio decidendi, as ascertained on a consideration of the judgment in relation to the subject matter of the decision, which alone has the force of law and which when it is clear it is not part of a tribunal's duty to spell out with difficulty a ratio decidendi in order to bound by it, and it is always dangerous to take one or two observations out of a long judgment and treat them as if they gave the ratio decidendi of the case. If more reasons than one are given by a tribunal for its judgment, all are taken as forming the ratio decidendi."
(Emphasis added)
17. In State of Orissa v. Mohd. Illiyas (2006) 1 SCC 275, it has been stated by the Hon'ble Supreme Court thus:-
"12......According to the well-settled theory of precedents, every decision contains three basic postulates: (i) findings of material facts, direct and inferential. An inferential finding of facts is the inference which the Judge draws from the direct, or perceptible facts; (ii) statements of the principles of law applicable to the legal problems disclosed by the facts; and (iii) judgment ::: Downloaded on - 15/04/2017 21:01:18 :::HCHP 16 Cr.MMO Nos. 163, 161 & 162 of 2016 based on the combined effect of the above. A decision is an authority for what it actually decides. What is of the essence in a decision is its ratio and not every observation found therein nor what logically flows from the various observations made in the .
judgment."
18. In Islamic Academy of Education v. State of Karnataka (2003) 6 SCC 697, the Hon'ble Supreme Court has made the following observations:-
of "2.....The ratio decidendi of a judgment has to be found out only on reading the entire judgment. Infact, the ratio of the judgment is what is set out in the judgment itself. The answer to rt the question would necessarily have to be read in the context of what is set out in the judgment and not in isolation. In case of any doubt as regards any observations, reasons and principles, the other part of the judgment has to be looked into. By reading a line here and there from the judgment, one cannot find out the entire ratio decidendi of the judgment."
19. The said authorities have been relied upon in Natural Resources Allocation, in Re, Special Reference No.1 of 2012 (2012) 10 SCC 1.
20. Further, the judgments rendered by a court are not to be read as statutes. In Union of India v. Amrit Lal Manchanda and another (2004) 3 SCC 75, it has been stated that observations of courts are neither to be read as Euclid's theorems nor as provisions of the statute and that too taken out of their context. The observations must be read in the context in which they appear to have been stated.
To interpret words, phrases and provisions of a statute, it may become necessary for judges to embark into lengthy discussions but the discussion is meant to explain and not to define. Judges interpret statutes, they do not interpret judgments. They interpret words of statutes; their words are not to be interpreted as statutes.
::: Downloaded on - 15/04/2017 21:01:18 :::HCHP 17 Cr.MMO Nos. 163, 161 & 162 of 201621. The Hon'ble Supreme Court in Som Mittal v. Government of Karnataka (2008) 3 SCC 574 observed that judgments are not to be construed as statutes. Nor words or phrases in judgments to be .
interpreted like provisions of a statute. Some words used in a judgment should be read and understood contextually and are not intended to be taken literally. Many a time a judge uses a phrase or expression with the intention of emphasizing a point or accentuating a of principle or even by way of a flourish of writing style. Ratio decidendi of a judgment is not to be discerned from a stray word or phrase read rt in isolation (See:Arasmeta Captive Power Company Private Limited and another v. Lafarge India Private Limited AIR 2014 SC 525.)
22. As a last ditch effort, the petitioner would contend that there is a total variation in the contents of complaint which form the subject matter of Cr.MMO Nos. 161 and 162 of 2016 as against those which is subject matter of Cr.MMO No. 163 of 2016. Even this submission in teeth of the law laid down by the Hon'ble Supreme Court in HMT Watches Ltd. case (supra) is clearly not available to the petitioner as the Court at this stage cannot go into the factual matrix of the complaint.
23. As a consequence of the aforesaid discussion, I find no merit in these petitions and the same are accordingly dismissed. The interim orders are vacated. The pending application(s), if any also stand disposed of.
(Tarlok Singh Chauhan), Judge.
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