Smt. Khatizam Bi Sikandar Khan Widow of Late Sikandar Khan, (Expired) Continued by Her Son Liyakat Ali Khan Vs. Smt. Rahimat Bi Khan, Wife of Shri Salim Khan and - Court Judgment

Excerpt:
- section 34: [d.k. deshmukh, s.j. vazifdar & j.p. devadhar, jj] court fee on petition under section 34 of the act bombay court fees act (36 of 1959), schedule i, article 3, schedule ii, article 1(f)(iii) held, according to article 3 of schedule i, on any plaint, application or petition or memorandum of appeal for setting aside or modifying an award, same court fee is payable as is payable on a plaint or memorandum of appeal under article 1. thus, when an award is challenged by a plaint, application, petition or memorandum of appeal, court fee is payable on ad valorem basis. but from this requirement of payment of court fee on ad valorem basis, article 3 excludes an application or petition or memorandum of appeal filed in civil or revenue court challenging any award made under the arbitration act, 1940.thus, the provisions of article 3 of schedule 1 do not apply when an application is filed or appeal is filed challenging an award made under the arbitration act, 1940. thus the provisions of article 3 of schedule i do not apply when an application is filed challenging an award made under the arbitration act, 1940. the question, therefore, that arises for consideration is whether reference to the provisions of 1940 act found in article 3 of schedule i of the bombay court fees act can be said to include reference to the 1996 act. perusal of the provisions of section 8 of general clauses act shows that where by a central enactment any provision of a former enactment is repealed and re-enacted with or without modification then reference in any other enactment to the provisions so repealed shall, unless a different intention appears, be construed as references to the provisions so re-enacted. in the present case, it is common ground that the former enactment is the 1940 act, the new enactment is the 1996 act and any other enactment is the bombay court fees act, the only provision of the 1940 act referred to in article 3 of schedule 1 of the bombay court fees act is the provisions of section 33 of the 1940act and bare comparison of that provision with the provisions of sub-section (1) of section 34 of the 1996 act shows that the provision of section 33 of 1940 act is repealed and re-enacted in sub-section (1) of section 34 of the 1996 act with slight modification. therefore, reference to the provisions of section 33 of the 1940 act in article 3 of schedule-i of the bombay court fees act has to be construed, in view of the provisions of section 8 of the general clauses act, as reference to the provisions of section 34 of the 1996 act. so far as an appeal filed under section 37 of the 1996 act is concerned, perusal of section 37 shows that an appeal is provided to the appellate court against an order setting aside an arbitral award or refusing to set aside an arbitral award under section 34. thus, as the provisions of article 3 of schedule-i do not apply to an application or petition filed under section 34 of the 1996 act, they will also not apply to the memorandum of appeal filed to set aside or modify an award made by the arbitrator under the 1996 act. in other words nothing contained in article 3 of schedule-i of the bombay court fees act applies to an application, petition or memorandum of appeal to set aside or modify any award made under the 1996 act as it does not apply to an application or petition or memorandum of appeal to set aside or modify an award made under the arbitration act, 1940. perusal of the provisions of section 8 of the general clauses act shows that references in any other enactment to a provision in a former enactment is to be construed as reference to re-enacted provision in the new enactment unless a different intention appears. the different intention may appear either in the new enactment or in the other enactment. nothing was pointed out either in the 1996 act or in the bombay court fees act which can be construed as a different intention or which will show that it was not the intention of the maharashtra legislature to exclude an application or petition or memorandum of appeal filed in court to set aside or modify an award made under the 1996 act, from the provisions of article 3 of schedule-i of the bombay court fees act. it appears that the intention behind excluding an application made, challenging the award made under the 1940 act, from requirement of payment of ad valorem court fee which is required to be paid if the same litigant filed a suit on the same subject matter, was to encourage a litigant to go for arbitration instead of filing a suit. nothing has been pointed out to show that ther4e is any change in that legislative policy. on the contrary, from the preamble of the 1996 act it is clear that the policy of the legislature is to encourage people to adopt the mode of arbitration for resolving disputes. article 3 of schedule-i of the bombay court fees act does not apply to a petition, application or memorandum of appeal filed for challenging an award made under the 1996 act, and court fee on a petition filed under section 34 of the 1996 act challenging an award in high court is payable according to article 1(f)(iii) of schedule ii. section 37: [d.k. deshmukh, s.j. vazifdar & j.p. devadhar, jj] court fee on appeal under section 37 of the arbitration & conciliation act, 1996 - held, court fee is payable according to article 13 of schedule ii of the bombay court fees act. schedule i, article 3 & schedule ii, article 1(f)(iii): [d.k. deshmukh, s.j. vazifdar & j.p. devadhar, jj] court fee on petition under section 34 of the arbitration & conciliation act, 1996 - held, when a petition under section 34 is to be filed before a principal civil court of original jurisdiction which is not a high court, the question arises which article of either first schedule or second schedule would apply. in so far as the challenge to an award made under the 1940 act is concerned, an application under section 33 of that act could be made to a civil court and therefore, payment of court fee was governed by article 1(a) of schedule ii. this was so because the application was to be presented to the court of civil judge which was not a principal civil court of original jurisdiction. but now because of change of definition of term court in the 1996 act, a petition has to be presented, challenging an award made under the 1996 act in terms of the provisions of section 34 thereof, before the principal civil court of original jurisdiction. no entry either in the first schedule or in the second schedule was pointed out which applies to an application or petition to be made before the principal civil court of original jurisdiction, and therefore, when a litigant wants to file petition before a principal civil court having original jurisdiction which is not high court, challenging an award made under the 1996 act, no court fee under bombay court fees act is payable because of absence of a general or specific provision. therefore, it can be said that no court fee under the bombay court fees act is payable when a petition under section 34 challenging an award is filed before any principal civil court of original jurisdiction which is not high court. schedule ii, article 13: [d.k. deshmukh, s.j. vazifdar & j.p. devadhar, jj] court fee on appeal under section 37 of the arbitration & conciliation act, 1996 - held, court fee is payable according to article 13 of schedule ii of the bombay court fees act. - 4. the complaint was filed with the allegation that in march, 2007, the complainant had told her son the said salim khan to keep certain gold ornaments belonging to her with him in his safe custody and her said son mr. the learned magistrate also referred to the evidence of pw2 zaina bi shaikh and observed that the said pw2 had admitted that the complainant was not in normal condition and her mental position was not well since january, 2008. the learned magistrate held that due to old age and sickness, the complainant could not corroborate the contents of the complaint as the complainant had stated that she had not approached the police and she had also not given any statement to the police. salim khan to keep her gold ornaments with him in his safe custody. the daughter in-law-as well as the son would be responsible for the gold ornaments not being returned. in the complaint, as can be seen from para 8, the complainant had stated that she had told her son the said salim khan to keep her gold ornaments with him in his safe custody and mr. the accused to keep the same in her safe custody. the complainant's witness, the said zaina bi had clearly stated that in march, 2007, the complainant had handed over all the said gold ornaments to her son salim khan, who is the husband of the accused, as the complainant was feeling insecure, on account of the thefts, taking place in the locality and the said salim khan in turn had handed over the said gold ornaments to his wife, the accused, and presently the said gold ornaments were with the accused. in other words, the statements of the complainant in the complaint, those of the complainant's witness as well as that of the accused in her statement under section 313 of the code clearly suggests that the complainant had entrusted her gold ornaments to her son the said salim khan who in turn had entrusted them to his wife, the accused. in the light of the averments in the complaint as well as other evidence led by the complainant, the complainant's evidence that she had entrusted the gold ornaments with the accused could not be accepted. the complaint and other evidence produced in support thereof clearly showed that the entrustment of the gold ornaments legally was with the son of the complainant, the said salim khan who later as per para 12 of the complaint had instructed his wife the accused not to handover the said gold ornaments to the complainant.n.a. britto, j.1. this is complainant's appeal and is directed against judgment dated 13.10.08 acquitting the accused under section 406 ipc.2. the complainant is a widow who had five sons and two daughters. after judgment dated 13.10.2008 and during the pendency of her application for leave to appeal, she expired and the application for leave to appeal was pursued by one of her sons by name liyakat ali khan.3. the complaint was filed by her against one of her sons by name salim khan/a-2 and his wife smt. rahimat bi khan/a-1. however, process was issued against only her daughter-in-law the said smt. rahimat khan who will be hereinafter referred to as the accused. no process was issued against her son the said salim khan nor the order refusing to issue process against him appears to have been challenged. any reference to the complainant hereinafter will be to the deceased complainant.4. the complaint was filed with the allegation that in march, 2007, the complainant had told her son the said salim khan to keep certain gold ornaments belonging to her with him in his safe custody and her said son mr. salim khan had told her not to worry and to hand over the said ornaments to his wife i.e. the accused and accordingly at the behest of her son, the said salim khan, the complainant handed over the gold ornaments to the accused.5. the said salim khan and the accused appear to have been residing at the relevant time alongwith the complainant, but moved away to another house constructed by them around may, 2007, and when the complainant asked the accused for the return of the said ornaments to be worn by her on an occasion of the marriage of her relative on 3.11.07, 4.11.07 and 17.11.07 the accused told the complainant that he would first inform her husband the said salim khan and take his permission, before returning the gold ornaments, to the complainant. thereafter the complainant filed a police complaint but no cognizance of it was taken by the police although the offence was cognizable, and, presumably that was done because the ornaments were to be returned after the husband of the accused returned from abroad.6. the complainant examined herself in support of her case and two other witnesses namely the complainant's servant by name zaina bi shaikh and head constable shamsundar gawas who had recorded the complainant's statements earlier at the instance of police inspector shri monserratte who was looking into the matter of the complaint of the complainant.7. the accused in her statement recorded under section 313 of the code (code of criminal procedure, 1973) had stated that the gold ornaments were handed over to her by her husband shri salim khan. she gave the description of the gold items given to her and further stated that her husband was then working abroad and when he would return from abroad, she would hand over the same to her husband shri salim khan.8. the learned trial magistrate referred to the evidence of the complainant where she had stated that the accused had refused to return back the gold ornaments saying that she was not in possession of the same and this statement, according to the learned magistrate, was contrary to the averments made by the complainant, in her complaint, wherein the complainant had stated that the accused had informed her that she would inform her husband salim khan and take his permission, before returning the gold ornaments to the complainant. the learned magistrate also referred to the evidence of pw2 zaina bi shaikh and observed that the said pw2 had admitted that the complainant was not in normal condition and her mental position was not well since january, 2008. the learned magistrate held that due to old age and sickness, the complainant could not corroborate the contents of the complaint as the complainant had stated that she had not approached the police and she had also not given any statement to the police. as regards the statement of the accused recorded under section 313 of the code the learned magistrate referred to the case of mohan singh v. prem singh and anr. air 2002 sc 3582 wherein it was held that a statement made by the accused under section 313 could be certainly taken aid of to lend the credence to the evidence led by the prosecution, but only part of such statement could not be made the sole basis for his conviction as it was not a substantive piece of evidence and could only be used for appreciating the evidence led by the prosecution to accept or reject it. ultimately, the learned magistrate came to the conclusion that there was a doubt about the entrustment of the gold ornaments and in the absence of any clear evidence to show entrustment and dishonest intention on the part of the accused the statement of the accused could not be made basis of conviction.9. para 8 of the complaint to which reference has been made by learned counsel on behalf of both parties reads as follows:8. in the month of march, 2007, the complainant being worried about her gold ornaments, told her son mr. salim khan to keep her gold ornaments with him in his safe custody. mr. salim khan told the complainant not to worry and to hand over the same to his wife smt. rahimat bi khan. accordingly at the behest of her son mr. salim khan, the complainant handed over the gold ornaments to smt. rahimat bi khan.10. shri ramani, the learned counsel on behalf of the complainant referring to the aforesaid paragraph of the complaint submits that there is no dispute that the gold ornaments were given to the accused and that both the accused i.e. the daughter in-law-as well as the son would be responsible for the gold ornaments not being returned. learned counsel further submits that the accused was not a stranger and was the daughter-in-law of the complainant who on being told by the complainant's son salim khan had accepted the custody of the gold ornaments and the gold ornaments were in her custody which she refused to hand over to the complainant, when requested. learned counsel further submits that the case of the complainant that the gold ornaments were entrusted in the custody of the accused i.e. the daughter-in-law was not at all inconsistent with other supporting evidence produced by the complainant.11. on the other hand, shri amonkar, learned counsel appearing on behalf of the accused submits that for all legal purposes, the complainant had entrusted the gold ornaments to her son, the said salim khan who in turn had asked his wife, the accused to keep them with her. learned counsel further submits that no process was issued against the complainant's son the said salim khan who was entrusted by the complainant with the gold ornaments, and who in turn had asked his wife to keep them with her and who had otherwise promised to return them to the complainant with the permission of her husband and/or after his return and, therefore, the learned magistrate was right in acquitting the accused under section 406 ipc.12. the version set out in the complaint, by the complainant was strictly not adhered to by her, in her evidence before the court. in the complaint, as can be seen from para 8, the complainant had stated that she had told her son the said salim khan to keep her gold ornaments with him in his safe custody and mr. salim khan had told her, not to worry and hand over the same to his wife, the accused and accordingly at the behest of her son, the said salim khan, the complainant handed over, the gold ornaments to the accused. the complainant further stated in para 12 of the complaint that when the accused refused to return to her the gold ornaments on or about 17.11.07, the accused had told her that her husband mr. salim khan had told her not to hand over the said gold ornaments to the complainant. the complainant in her evidence before the court had stated that she had given the gold ornaments to her daughter-in-law i.e. the accused to keep the same in her safe custody. there was no specific reference to the said salim khan. the complainant's witness, the said zaina bi had clearly stated that in march, 2007, the complainant had handed over all the said gold ornaments to her son salim khan, who is the husband of the accused, as the complainant was feeling insecure, on account of the thefts, taking place in the locality and the said salim khan in turn had handed over the said gold ornaments to his wife, the accused, and presently the said gold ornaments were with the accused. in other words, the statements of the complainant in the complaint, those of the complainant's witness as well as that of the accused in her statement under section 313 of the code clearly suggests that the complainant had entrusted her gold ornaments to her son the said salim khan who in turn had entrusted them to his wife, the accused. in other words, the complainant had entrusted her gold ornaments to her son the said salim khan against whom the learned magistrate had not issued any process but process was issued against, his wife, the accused. in the light of the averments in the complaint as well as other evidence led by the complainant, the complainant's evidence that she had entrusted the gold ornaments with the accused could not be accepted. the complaint and other evidence produced in support thereof clearly showed that the entrustment of the gold ornaments legally was with the son of the complainant, the said salim khan who later as per para 12 of the complaint had instructed his wife the accused not to handover the said gold ornaments to the complainant. in other words the legal custody of the ornaments was with salim khan though the actual custody was with the accused. the ornaments was entrusted to salim khan and the accused held them on his behalf. therefore, it is he who ought to have been prosecuted and in case no process was issued against him, that order ought to have been challenged.13. the view held by the learned magistrate in acquitting the accused under section 406 ipc is both reasonable and plausible and therefore calls no interference from this court. once there was a doubt as regards entrustment in favour of the accused in the light of the evidence that the entrustment was in favour of the complainant's son, the accused had necessarily to be extended the benefit of the said doubt.14. i find there is no merit in the present appeal and accordingly the same is hereby dismissed.