Makhan Lal Vs. Asharfi Lal and ors. - Court Judgment

Excerpt:
- sections 21 & 35a: [s.b. sinha & cyriac joseph, jj] directions to banks circular dated 5.9.1988 issued by reserve bank of india in relation to discounting and rediscounting of bills of exchange held, it is binding on banking companies. therefore officials of nationalised bank were bound by said circular letter. plea by bank officials that they had no knowledge of the circulars issued by rbi is not tenable. section 45-k: [s.b. sinha & cyriac joseph, jj] directions to banks circular dated 5.9.1988 issued by reserve bank of india in relation to discounting and rediscounting of bills of exchange held, it is binding on banking companies. therefore officials of nationalised bank were bound by said circular letter. plea by bank officials that they had no knowledge of the circulars issued by rbi is not tenable. section 2 (c): [s.b. sinha & cyriac joseph, jj] definition of securities held, it is an inclusive one and not exhaustive. it takes within its purview not only matters specified therein but also all other types of securities as commonly understood. term securities thus, should be given expansive meaning. sudhir shantilal mehta v c.b.i. [cri.a.nos. 905/2005 etc dd 7.8.2009]. sections 7 & 9: [s.b. sinha & cyriac joseph, jj] jurisdiction of special court held, it is exclusive one. it exercises original jurisdiction to try offences relating to security scam. sections 7 & 9: [s.b. sinha & cyriac joseph, jj] jurisdiction of special court - method of siphoning of funds of nationalised bank through discounting of two bills of exchange adopted by accused persons including bank officials, was unlawful - both bills of exchange were shown to have been issued in relation to transaction in shares - for purpose of arranging repayment of amount, shares were purchased by bank through broker - offence of conspiracy to commit offence of breach of trust, thus related to transaction in securities hence, it cannot therefore be said special court lacked inherent jurisdiction in trying offences said to have been committed by accused. indian penal code, 1890.section 405: [s.b. sinha & cyriac joseph, jj] criminal breach of trust held, circular letter meant for all scheduled banks issued by reserve bank of india being binding on banks, it would be binding on its officers. any act of omission of commission on part of any authority of bank would amount to acting in violation of any direction of law would result in civil action and subjecting bank to civil liability would thus attract one of ingredients of criminal breach of trust. sections 409 & 120b: criminal breach of trust conspiracy - transactions of discounting and rediscounting of bills of exchange and pay orders not representing bona fide commercial transaction - conspiracy between bank officials like chairman-cum-managing director, general manager and other accused persons -transactions carried out from branch not equipped to deal with it - all procedural requirements necessary for safeguarding interest of bank, thrown to winds -payments for retiring bills of exchange not made either by drawer or acceptor to cover up said default acquisition of shares from wife of principal accused made by bank was neither bona fide nor in interests of bank - held, charge of criminal breach of trust established against chairman-cum-managing director and general manager of bank. conviction of accused and sentence imposed is not liable to be interfered with. - both the trial court as well as the first appellate court had negatived the case of the respondents and dismissed the suit. in the second appeal, the learned single judge of the high court framed two questions for consideration, namely, whether merely by contributing some amount towards construction of the disputed house, the appellant can claim half share in the house and whether the judgment of the two courts below are the result of total mis-reading the evidence and of recording the finding while ignoring the oral as well as documentary evidence on record? she was the best person to show how the property was enjoyed and the other evidence also was not properly considered.order1. leave granted.2. the respondent nos. 1 and 2 had filed a suit for permanent injunction, possession and damages against the appellant and the proforma respondent no. 3 on the premise that they were licensees in respect of part of the house belonging to baij nath and, therefore, had no manner of right whatsoever to be in possession after the revocation of the licence. the appellant set up the plea that the contributed half of the amount in the constriction of the house along with baij nath and that he has been residing therein ever since. the house also was got mutated in 1957 in the joint name of himself and baij nath and, therefore, the injunction sought for could not be granted. both the trial court as well as the first appellate court had negatived the case of the respondents and dismissed the suit. in the second appeal, the learned single judge of the high court framed two questions for consideration, namely, whether merely by contributing some amount towards construction of the disputed house, the appellant can claim half share in the house and whether the judgment of the two courts below are the result of total mis-reading the evidence and of recording the finding while ignoring the oral as well as documentary evidence on record? pursuant to framing the above questions, the learned judge, as if he were the first appellate court, has gone into the questions of fact and recorded the findings against the appellant. thus, he reversed the decree of the trial court and the appellate court.3. it is contended for the appellant, on the basis of the documentary evidence adduced in proof of the mutation and his enjoyment ever since 1957 during the life time of baij nath, who did not even object to his being in possession and enjoyment of the half share in the house, that the view taken by the high court is not correct. he also pointed out that the finding of the high court that the material evidence was ignored by the courts below is not correct as the evidence has been appreciated and the high court came to the conclusion that the respondents had not established their case.4. it is contended for the respondents/plaintiffs, on the other hand, that the evidence of ram pyari, the mother of the parties was not properly considered. she was the best person to show how the property was enjoyed and the other evidence also was not properly considered. on the basis of surmises, the trial court and the appellate court had come to a wrong conclusion. therefore, it is a substantial mistake of law which the high court has rightly corrected.5. having considered the respective contention, the question that arises for consideration is whether the high court is right in disturbing the concurrent findings of fact recorded by the trial court and the appellate court? it is not in dispute that material documents had been filed, as indicated in the judgment of the first appellate court itself. it is also not in dispute that the mutation proceedings having taken place during the life-time of baij nath of the municipality do indicate that the property was mutated in the joint names of baij nath and the appellant. during the life lime of baij nath, no demur of the right to residence and continuance in half share of the property was controverted nor ever impeded by baij nath. the administrated facts are that the appellant is the son of first husband of the ram pyari and the respondents are the children born to baij nath in the second marriage. in view of the fact that the parties are closely interrelated and having lived jointly at least from 1957, the obvious inference that they had been inducted into possession by baij nath even treating them as members of the family, is irresistible. under these circumstances, the suit of injunction etc. against them is unsustainable in law. the trial court and the appellate court having gone into the evidence and having appreciated the same came to the finding of fact. the said findings cannot be characterised to be surmises; nor can they be said to have ignored the material evidence. under these circumstances, the high court was wrong in interfering with the concurrent findings.6. the appeal is accordingly allowed. the judgment of the high court stands set aside and that of the appellate court and the trial court stands confirmed. no costs.

Judgment:
ORDER

1. Leave granted.

2. The respondent Nos. 1 and 2 had filed a suit for permanent injunction, possession and damages against the appellant and the proforma respondent No. 3 on the premise that they were licensees in respect of part of the house belonging to Baij Nath and, therefore, had no manner of right whatsoever to be in possession after the revocation of the licence. The appellant set up the plea that the contributed half of the amount in the constriction of the house along with Baij Nath and that he has been residing therein ever since. The house also was got mutated in 1957 in the Joint name of himself and Baij Nath and, therefore, the injunction sought for could not be granted. Both the trial Court as well as the first appellate court had negatived the case of the respondents and dismissed the suit. In the second appeal, the learned single Judge of the High Court framed two questions for consideration, namely, whether merely by contributing some amount towards construction of the disputed house, the appellant can claim half share in the house and whether the judgment of the two courts below are the result of total mis-reading the evidence and of recording the finding while ignoring the oral as well as documentary evidence on record? Pursuant to framing the above questions, the learned Judge, as if he were the First Appellate Court, has gone into the questions of fact and recorded the findings against the appellant. Thus, he reversed the decree of the trial court and the appellate Court.

3. It is contended for the appellant, on the basis of the documentary evidence adduced in proof of the mutation and his enjoyment ever since 1957 during the life time of Baij Nath, who did not even object to his being in possession and enjoyment of the half share in the house, that the view taken by the High Court is not correct. He also pointed out that the finding of the High Court that the material evidence was ignored by the courts below is not correct as the evidence has been appreciated and the High Court came to the conclusion that the respondents had not established their case.

4. It is contended for the respondents/plaintiffs, on the other hand, that the evidence of Ram Pyari, the mother of the parties was not properly considered. She was the best person to show how the property was enjoyed and the other evidence also was not properly considered. On the basis of surmises, the trial Court and the appellate Court had come to a wrong conclusion. Therefore, it is a substantial mistake of law which the High Court has rightly corrected.

5. Having considered the respective contention, the question that arises for consideration is whether the High Court is right in disturbing the concurrent findings of fact recorded by the trial Court and the appellate Court? It is not in dispute that material documents had been filed, as indicated in the judgment of the first appellate Court itself. It is also not in dispute that the mutation proceedings having taken place during the life-time of Baij Nath of the municipality do indicate that the property was mutated in the joint names of Baij Nath and the appellant. During the life lime of Baij Nath, no demur of the right to residence and continuance in half share of the property was controverted nor ever impeded by Baij Nath. The administrated facts are that the appellant is the son of first husband of the Ram Pyari and the respondents are the children born to Baij Nath in the second marriage. In view of the fact that the parties are closely interrelated and having lived jointly at least from 1957, the obvious inference that they had been inducted into possession by Baij Nath even treating them as members of the family, is irresistible. Under these circumstances, the suit of injunction etc. against them is unsustainable in law. The trial Court and the appellate Court having gone into the evidence and having appreciated the same came to the finding of fact. The said findings cannot be characterised to be surmises; nor can they be said to have ignored the material evidence. Under these circumstances, the High Court was wrong in interfering with the concurrent findings.

6. The appeal is accordingly allowed. The judgment of the High Court stands set aside and that of the appellate Court and the trial Court stands confirmed. No costs.