State of Maharashtra Vs. Omprakash - 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of section 8 of general clauses act shows that where by a central enactment any provision of a former enactment is repealed and re-enacted with or without modification then reference in any other enactment to the provisions so repealed shall, unless a different intention appears, be construed as references to the provisions so re-enacted.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the provisions of sub-section (1) of section 34 of the 1996 act shows that the provision of section 33 of 1940 act is repealed and re-enacted in sub-section (1) of section 34 of the 1996 act with slight modification.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. - the learned 2nd additional sessions judge found that the evidence of the complainant as well as the eye-witnesses was not trustworthy. 8. the learned counsel for the respondent on the other hand justified the judgment passed by the 2nd additional sessions judge and submitted that there has been proper appreciation of evidence, the prosecution failed to point out any perversity in the impugned judgment and that it needs to be confirmed. as well as the judgment of 2nd additional sessions judge. there is evidence on record to suggest that there had been some sort of scuffling between the complainant and the accused, the complainant failed on his bicycle and was injured.k.j. rohee, j.1. the state has preferred an appeal against the acquittal of the respondent/original accused for the offence punishable under section 325 of i. p. c. by the 2nd additional sessions judge, wardha in criminal appeal no. 20/1988 decided on 15-9-1990 whereunder the conviction and sentence passed against the appellant by judicial magistrate, first class, arvi in criminal case no. 47/198l decided on 6-5-1988 was set aside.2. the facts about which there is no dispute in this appeal are that the complainant namely pw-1 motilal dhulchand rathi (hereinafter referred to as 'the complainant') is the editor of 'arvi times' and the accused is the editor of 'yuwa samuha'. there has been professional rivalry between the complainant and the respondent.3. the case of the prosecution in brief is that on 20-1-1981 the complainant had gone to food office situated in tahsil kacheri for obtaining sugar permit. the complainant was leaving the office on his bicycle around 6.15 p.m. at that time the respondent at once came near the complainant and bit the left ear of the complainant. a piece of left ear of the complainant was cut because of the bite. the shirt of the complainant was stained with blood. the staff in the food office namely pw-2 bapurao shankarrao chauhan; pw-3 balwant punjaji gondhane; pw-6 shyamrao tulsiram shendre and other persons who were present there saw the assault. the respondent, however, escaped with the piece of ear in his mouth. thereafter the complainant went to police station, arvi and lodged oral report. he was immediately sent for medical examination. pw-7 dr. divre, assistant surgeon, civil hospital, arvi examined the complainant and referred him to civil hospital, wardha. subsequently, the complainant was referred to government medical college, nagpur. pw-11 dr. vaidya operated him. the complainant was admitted on 21-1-1981 and was discharged from the hospital on 3-2-1981. in the meanwhile, crime no. 19/81 under section 325 of i. p. c. was registered against the respondent by pw-10 h. c. kamble. the statement of eye-witnesses were recorded and after usual investigation, the respondent was charge-sheeted.4. the prosecution examined the complainant and as many as seven eye-witnesses. the prosecution also examined dr. divre and dr. vaidya in support of the allegations made against the respondent.5. the learned trial judge accepted the evidence adduced by the prosecution, and held that the offence punishable under section 325 of i. p. c. was proved against the respondent. he, therefore, convicted the respondent for the said offence and sentenced him to suffer r. i. for 6 months and also to pay a fine of rs. 2000/- and in default to suffer imprisonment for one month.6. the respondent preferred appeal against his conviction and sentence to the sessions court. the learned 2nd additional sessions judge found that the evidence of the complainant as well as the eye-witnesses was not trustworthy. he held that the medical evidence also does not corroborate the version of the complainant. he, therefore, set aside the conviction and sentence of the respondent and acquitted him. the present appeal is directed against the said order of acquittal.7. the learned additional public prosecutor assailed the impugned judgment of acquittal. he submitted that the testimony of the complainant is found corroborated by as many as three eye-witnesses. not only that the same is also supported by medical evidence of pw-7 dr. divre and pw-11 dr. vaidya. the learned additional public prosecutor submitted that the learned additional sessions judge did not properly appreciate the evidence of the complainant and other witnesses. he committed an error in discarding their evidence and thus there has been miscarriage of justice. he, therefore, submitted that the impugned judgment of acquittal is liable to be set aside and the judgment of the learned trial magistrate is required to be restored.8. the learned counsel for the respondent on the other hand justified the judgment passed by the 2nd additional sessions judge and submitted that there has been proper appreciation of evidence, the prosecution failed to point out any perversity in the impugned judgment and that it needs to be confirmed.9. i have carefully gone through the judgment delivered by the learned j. m. f. c. as well as the judgment of 2nd additional sessions judge. it may be noted that as many as seven eye-witnesses were examined by the prosecution in support of the version of the complainant. out of them, four eye-witnesses namely pw-2 bapurao shankarrao chauhan (retired jamadar in the food office), pw-3 balwant punjaji gondhane (retired peon in the food office), pw-8 harishankar nandkishore sharma and pw-9 sukhdeo jangluji kalbande did not support the testimony of the complainant. it may be noted that pw-8 sharma was having his pan shop inside the premises of tahsil kacheri and pw-9 kalbande was having his tea canteen in front of the gate of the tahsil office, arvi. thus pw-8 sharma and pw-9 kalbande can be the most natural witnesses to the alleged incident. in fact they are the independent witnesses and not interested in the complainant. they deposed that they do not know anything about the incident.10. a perusal of the testimony of pw-4 nana pandurangji bhumre shows that he heard shouting while taking tea and after finishing tea, he went to see as to what was the matter. he saw that about 50 to 60 persons had gathered at the place of the incident and they had encircled the accused and the complainant. it is thus obvious that he has not seen the accused assaulting the complainant and cutting the ear of the complainant by bite.11. the testimony of pw-5 madanlal paliwal also reveals that he went there to separate the accused and the complainant and that the complainant was saying that his ear was cut by the accused. it is thus obvious that he has also not seen the accused cutting the ear of the complainant by bite. it may further be seen that pw-5 madanlal paliwal stated that he had accompanied the complainant to the police station for lodging report and he had also accompanied the complainant to the hospital at nagpur. both these facts were denied by the complainant. this shows that the complainant wants to hide his relations with pw-5 madanlal paliwal.12. the testimony of pw-6 shyamrao shendre who was working as upper division clerk in food office shows that he came out of the office because he heard shouting. he saw that many persons had gathered on the spot and they were saying that there had been quarrel between the accused and the complainant. when pw-6 shendre inquired with the complainant, he was told that the accused cut his ear. pw-6 shendre observed that there was bleeding from the ear of the complainant. during cross examination pw-6 shyamrao shendre stated that he went to verandah in the office when he heard that there had been quarrel. he further admitted that when he came in verandah the accused was not there. at the end of the cross-examination, he admitted that he did not see the incident.13. it would thus be seen that the testimony of the eye-witnesses supporting the prosecution is of no help to the prosecution.14. the complainant admitted during his cross-examination that he gave fists blows on the stomach of the accused. there is evidence on record to suggest that there had been some sort of scuffling between the complainant and the accused, the complainant failed on his bicycle and was injured. pw-2 dr. divre who examined the complainant soon after the alleged incident, admitted that he has not mentioned the cause of injury in the certificate (exh. 39). he admitted that the cut injury could have been caused due to sharp object. during cross-examination, he stated that he was never questioned by the police regarding the cause of injury and particularly the injury no. 1. he further stated that the injuries caused by teeth bite have special marks. however, his evidence is silent as to whether he observed that injury no. 1 was because of teeth bites.15. pw-11 dr. vaidya came to know from the complainant himself that the injury to his left ear was caused because of human bites. however, dr. vaidya did not find anything of that sort when he operated the complainant.16. it was tried to be shown by the defence that the brother of the complainant was not having an ear since birth. the defence perhaps wanted to indicate that the complainant too had no left ear. in this regard the photographs of the complainant were produced but they have not been proved, hence they cannot be taken into consideration.17. it may be noted that the prosecution did not try to find out the piece of the ear of the complainant which was cut. secondly though the shirt of the complainant was stained with blood, it was not seized.18. from the evidence on the record, the possibility of the ear of the complainant having been cut due to forceful fall on sharp chain of his bicycle cannot be overlooked. the learned 2nd additional sessions judge has discussed the oral and documentary evidence on record in details and has come to the conclusion that the possibility of false involvement of the accused by the complainant because of professional enmity cannot be ruled out. i find no perversity in the impugned judgment. hence the order :the appeal is dismissed. bail bonds stand cancelled.