Arun Parshuram Sutar Vs. State of Maharashtra - 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of section 8 of general clauses act shows that where by a central enactment any provision of a former enactment is repealed and re-enacted with or without modification then reference in any other enactment to the provisions so repealed shall, unless a different intention appears, be construed as references to the provisions so re-enacted.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the provisions of sub-section (1) of section 34 of the 1996 act shows that the provision of section 33 of 1940 act is repealed and re-enacted in sub-section (1) of section 34 of the 1996 act with slight modification.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. - 1 remembers him when he saw him in the court, i do not think any further evidence is necessary like an identification parade to connect the offence with the accused.t.k. chandrashekhara das, j.1. the appellant along with another accused charged under sections 409, 420, 468, 467, 465, 471 read with 34 of the indian penal code and also for criminal misconduct under section 5(1)(c) read with section 5(d) of the prevention of corruption act. the appellant was convicted and sentenced by the trial court in following manner:-under section 409 i.p.c. r.i. for two years and to payfine of rs. 1000/- in defaultto suffer r. i. for six months.under section 465 i.p.c. r.i. for one year and to paya fine of rs. 500/- in defaultto suffer further r. i. for threemonths.under section 467 i.p.c. r.i. for two years and to paya fine of rs. 500/- in defaultto suffer further r. i. for sixmonths.under section 471 i.p.c. r.i. for six months.under section 5(1)(c) r.i. for six months and tor.w. section 5(2) of pay fine of rs. 500/- in de-2. the case of the prosecution is that the appellant as a sarpanch of shiravane grampanchayat and continuing as such during the period from 19-8-78 to 14-10-1978, accused no. 2 jagtap was working as a peon of the said grampanchayat during the relevant time, p.w. no. 3 kanha raghunath umatol was working as a gram sevak of the said grampanchayat during 1976 to 15-6-1978. when he was transferred p.w. no. 5 yeshwantrao was appointed as gram sevak from 20-6-1978 and continued till 23-11-1978. from 23-11-1978 onwards one mahadu mhatre p.w. no. 6 was continuing as gram sevak till 25-5-1981. one raghunath mhatre was working as a clerk of the grampanchayat during the relevant period! shiravane grampanchayat had its account with two banks and being operated jointly as sarpanch and gram sevak. the appellant was elected as a new sarpanch and consequently he was authorised to operate the bank account of the grampanchayat, and a resolution of the grampahchayat was passed on 3-6-1978, which is exhibited as exh. 37 authorizing him to operate the bank account jointly with gram sevak umatol. the said umatol worked only till 15-6-1978. that became necessitated for the grampanchayat to pass a resolution on 20-6-1978, exh. 40, authorizing the new gramsevak yeshwantrao to. jointly operate the bank accounts. according to the prosecution, a demand notice for house tax for rs. 6.130.95/- for the year 1977-78 was made on bombay burma trading corporation limited within the local limits of the grampanchayat. in response to that demand notice the factory made on payment of tax by cheque no. 417897 dated 14-8-1997 drawn on mercantile bank. after the cheque was issued in the name of grampanchayat a receipt acknowledging the payment was issued by the clerk of the grampanchayat. it is the case of the prosecution that accused nos. 1 and 2 by hatching out a conspiracy between themselves in furtherance of their common intention committed misappropriation of the amount of rupees 6,130.957- by getting the cheque encashed and misappropriated the amount. the modus operandi followed by the accused, according to the prosecution, as follows :-3. on 19-8-1978 the appellant approached p.w. no. 1 joshi who was at the relevant time agent of the parsik bank, belapur branch for opening an account in the name of sarpanch, grampanchayat, shirvane and obtained necessary forms. thereafter on 22-8-1978 the appellant sutar came to the bank with accused no. 2 jagtap. he told p.w. no. 1 joshi that accused no. 2 jagtap was going to be appointed as secretary of the grampanchayat. after making this representation both the accused filled in necessary documents for opening the saving account in the bank and deposited rs. 5/- and the bank account was opened as account no. 250, in the name and style of sarpanch, grampanchayat, shirvane. at the time of opening the account, the appellant presented two documents, one purported to be the copy of the resolution of the grampanchayat dated 30-5-1978 electing the; appellant as sarpanch. another document was purported to be the copy of resolution no. 3 dated 3-6-1978 passed by the grampanchayat for opening an account with parsik bank and also authorizing the sarpanch to open the said account. according to the prosecution the said resolution dated 3-6-1978 for opening the account with parsik bank was bogus and it was never passed. it is the allegation of the prosecution that the said resolution was forged with a motive of committing fraud and misappropriation.4. on 4-9-1978 a cheque for an amount of rs. 6,130.957- issued by bombay burma trading corporation drawn on the maharashtra bank, bombay in favour of grampanchayat towards the remittance of house tax, was presented with the bank for realization. the cheque was realised on 14-9-1978. on 20-9-1978 the accused no. 2 jagtap approached the agent joshi of the bank with a letter of the appellant no. 1 sutar, informing the bank that the bearer of the letter is joshi, who was the new secretary of the grampanchayat and he has sufficient authority to sign the cheques. on the same day accused no. 2 jagtap presented a cheque, evident by exh. 30, for rs. 4,000/- and two days thereafter i.e. on 22-9-1978 another cheque, exh. 31, for rs. 2,000/- and lastly on 14-10-1978, exh. 32, for rs. 133.70/- being the balance amount and the account was closed, on 14-10-1978. it is further the case of the prosecution that this withdrawal of the amount has never reflected in the cash book of the grampanchayat and the appellant and the second accused misappropriated that amount.5. in this context an anonymous petition received by the inspector general, a.c.b. bombay alleging a fraud and misappropriation of the amount against the appellant sutar and other servants of the grampanchayat. the said complaint forwarded to a.c.b. thane for enquiry, p.s.i. kotkar were entrusted with the task of the enquiry of the offence. accordingly, on 8-8-1980 he filed a complaint before the court against the appellant and also accused no. 2, a clerk raghunath mahtre. we are concerned only with the appellant in this case p.w. 1 kotkar p.w. no. 7 registered a case against the accused as crime no. 132/80. thereafter on 17-6-1982 the investigation was taken up by p.s. 1. choudhari p.w. no. 8 because of the transfer of shri kotkar. after obtaining necessary permission from chief judicial magistrate to investigate the case, he recorded the statements of some witnesses, and he applied for sanction to prosecute the appellant as he is the public servant. after obtaining the sanction shri choudhari p.w. no. 8 filed charge-sheet against both the accused.6. the main contention of the learned counsel for the appellant in this case is that there is no identification of the accused no. 1, the appellant and he was identified by p.w. no. 1 joshi first time in court. the second contention is that the signature of the appellant having disputed and having not sent for handwriting expert and hence the appellant is not liable to be convicted. as regards the identification, we have the evidence of p.w. no. 1 joshi, who at the relevant time was an agent manager of the parsik bank, belapur branch. he says in his evidence that he knows the appellant as the sarpanch of the grampanchayat, shirvane, even before. of course he admits that on 19-8-1978 alone he met him in his office for opening the account. the learned counsel for the appellant strenuously argued that this statement will not be sufficient for identification of the accused. the statement of p.w. no. 1 according to the counsel, cannot be accepted because he identified the accused in the court having met only once, on 19-8-1978, when the appellant came to his branch for opening the account. but in the cross-examination he specifically stated that prior to 19-8-1978 he was knowing the name of the accused as being the sarpanch of shirvane grampanchayat. the learned a .p.p. submits that the appellant was a popular figure as sarpanch of the grampanchayat and the p.w. no. 1 remembered him and identified him having come to his office, in the court. according to the learned a.p.p. it is sufficient identification of the appellant. as observed by the court below appellant being a public figure in the locality and who came to the office of the p.w. no. 1 on 19-8-1978 and p.w. no. 1 remembers him when he saw him in the court, i do not think any further evidence is necessary like an identification parade to connect the offence with the accused. submission of the counsel for the appellant based on identification, has therefore only to be rejected.7. as regards arguments based on the signature which was found in the letters produced before the bank in the resolution authorizing the appellant to open the account, we have the evidence of p.w, no. 3 kanha raghunath umatol, who was working under appellant for two weeks and who is familiar with the signature of the appellant. he says that before the meetings of the grampanchayat, the signature of the members will be taken and on 30-5-1978 the appellant was elected as sarpanch, when the resolution was taken the signatures of the members of the grampanchayat were obtained and he identified the signature of appellant, each and every signature was contained in the proceeding book, which were identified by him. the next meeting of the grampanchayat was on 30-6-1978 and he was present in that meeting and in all seven members including the appellant were present. the minutes of the meeting was recorded by him in his handwriting. he identified the signature of the appellant as serial no. 1 and in that meeting a resolution regarding handing over the charge of the previous sarpanch to the appellant was passed. he also deposed that by resolution no. 3, it was resolved that bank account of the grampanchayat should be entered in the name of new sarpanch and the gramsevak i.e. himself. he further deposed that the grampanchayat had its account with bank of india, thurbhe branch and post office shirvane. below this resolution the appellant has signed and p.w. no. 3 has identified his signature, after this he was shown ex. 29, which was a letter written by accused no. 2 addressed to p.w. no. 1 saying that appellant has authorized him to operate the account as per resolution exh. 28. exh. 28 also shown to the witness p.w. no. 3. he identified the signature of the appellant. at the same time he could not say who has written the letter. thereafter he was shown exh. 25 which also bears the signature of the appellant and the witnesses as identified the same, which is a purported resolution authorizing them to open the account at parsik bank, belapur branch. p.w. no. 3 has specifically stated that it is in the handwriting of mhatre who is a clerk of grampanchayat. exh. 23 is the specimen signature of the accused no. 2 and the appellant for opening the account and exh. 21 is the specimen signature of the appellant and the accused no. 2 for closing the account. this witness has therefore very familiar of the signature of the appellant and as observed by the court below, there is no doubtful circumstances exist to disbelieve the p.w. no. 3 in identifying the signature of the appellant. the other documentary evidence shows that they have withdrawn the amount in three occasions from the bank and closed the account. the modus operandi followed by the accused itself will go to indicate the culpability of the accused. it is clear that only for encashing the cheque issued by the bombay burma trading corporation the account was opened and after withdrawing the amount the account was closed. in view of this, i do not find any reason to interfere with the conviction entered by the trial court. therefore i confirm the conviction entered by the appellant under sections 409, 465, 467, 471 of i.p.c. and under sections 5(1)(c) read with 5(1)(2) of the prevention of corruption act.8. the offence was detected as early in 19781 and about 20 years have been lapsed, after the offence have been committed and detected for a few months he was in jail. therefore the interest of justice will be met and i consider it as adequate in the circumstances of the case, that he is sentenced to imprisonment for the period he had already undergone and also to pay a fine of rs. 10,000/- in default r.i. for six months for the aforesaid offences.9. in the result the appeal is partly allowed and partly dismissed. the conviction entered by the court below is confirmed and the appellant is sentenced for a period during which he had already been suffered and he is directed to pay a fine of rs. 10,000/- within two months from the date of the order in default r.i. for six months.10. the appellant is on bail. he need not surrender. but his bail bond stand cancelled and sureties stand discharged, when fine is paid, within three months from the date of receipt of the certified copy of this judgment.