Circumstantial evidence should not only be consistent with guilt of accused but also be inconsistent with his innocence: Allahabad HC - The Daily Guardian
Connect with us

Legally Speaking

Circumstantial evidence should not only be consistent with guilt of accused but also be inconsistent with his innocence: Allahabad HC

Published

on

While drawing curtains on all the doubts on the evidentiary value of circumstantial evidence, the Allahabad High Court in a learned, laudable, landmark and latest judgment titled Shriniwas vs State of UP and 3 Others in Criminal Misc. Application U/S 372 Cr.P.C (Leave to Appeal) No. 150 of 2014 delivered recently on February 11, 2022 has held that circumstantial evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence. The observation was made by a Division Bench of Justice Vivek Kumar Birla and Justice Subhash Vidhyarthi of Allahabad High Court while dismissing an appeal filed by the victim against the order of Additional Sessions Judge, Badaun, acquitting the respondent of charges under Section 302, 34 IPC. This judgment certainly deserves to be read in its entirety.

To start with, it is first and foremost put forth in para 2 that, “As already held by this Court in number of cases that leave application filed under Section 378(3) Cr.P.C. is not required in the appeal filed by the victim under Section 372 Cr.P.C. like the present appeal. A reference may be made to the order dated 4.8.2021 passed in Criminal Appeal U/S 372 Cr.P.C. No. 123 of 2021 (Rita Devi vs. State of U.P. and another). As such, the application for leave to appeal stands rejected as not maintainable and / or not required.”

As we see, the Bench then observes in para 3 that, “This appeal has been filed against the order dated 18.2.2014 passed by the Additional Sessions Judge, Court No. 8, Badaun acquitting the respondent nos. 2, 3 and 4 in Session Trial No. 917 of 2011 (State v. Monu Singh and others) arising out of Case Crime No. 539 of 2011, under Sections 302, 34 IPC, P.S. Wazeerganj, District Badaun.”

To put things in perspective, the Bench then envisages in para 4 that, “According to the first information report the deceased Ramniwas, who was practising as a Doctor in the clinic of Hariom, on 17.5.2011 at about 11:00 A.M. went to Katgaon on daily routine and at about 9:00-10:00 P.M. son (Anil) of the deceased called the brother (deceased) of the informant and asked for coming home and the deceased informed that he is coming shortly. When at about 10:00 P.M. the deceased did not reach home the informant and Anil went out for searching him. At about 02:00 A.M. they found dead body of the deceased in the field of Babu Singh on the side of road. First information report was registered against unknown persons as Case Crime No. 539 of 2011, under Sections 302, 34 IPC., P.S. Wazeerganj, District Badaun.”

As it turned out, the Bench then enunciates in para 6 that, “Judgment of acquittal was passed by the trial court on the grounds that although P.W.-1 and P.W.-2 are witnesses of fact but admittedly, they have not seen the incident. They have stated only to the extent that the dead body was found in a field when they had gone out to search the deceased. P.W.-1, Sriniwas Sharma, is the brother of the deceased and P.W-2 is the wife of the deceased. P.W.-2, Smt. Ramsukhi, has stated that her son had called his father and he stated that he is coming home shortly, however, he did not come and when the deceased did not reach home P.W.-1 had gone out with his nephew (Anil) to search him and the dead body of the deceased was found in a field. Although it is alleged that the darati, the weapon used in the incident, was recovered on pointing out of Narendra Singh (one of the accused), however, it was found that the incident was dated 17.5.2011, whereas the weapon was recovered after more than two months on 19.7.2011 and even the F.S.L. report had mentioned that it cannot be ascertained that there was human blood on the weapon used, therefore, it was held that this being case of circumstantial evidence and there was no cogent evidence to complete the chain of circumstances so as to hold that the crime was committed by the accused and none else.”

Simply put, the Bench then notes in para 7 that, “Challenging the impugned judgment of acquittal submission of learned counsel for the appellant is that P.W.-1 in his statement had clearly stated that when he had gone out in search of the deceased he had seen the accused persons coming from the side of the spot, where the dead body was found and this clearly connects the accused persons with the offence. It was further pointed out that even the weapon used in the incident was recovered on pointing out of Narendra Singh. Submission, therefore, is that the impugned judgment is liable to be set aside and the accused persons are liable to be convicted in the present case.”

While citing relevant case law, the Bench then specifies in para 11 that, “In Achhar Singh vs. State of Himachal Pradesh (2021) 5 SCC 543 reiterating the law, Supreme Court held that it is fundamental in criminal jurisprudence that every person is presumed to be innocent until proven guilty and it is obligatory on the prosecution to establish the guilt of the accused save where the presumption of innocence has been statutorily dispensed with, for example, under Section 113-B of the Evidence Act, 1872. It was further held that it is well crystallized principle that if two views are possible, the High Court ought not to interference with the trial court’s judgment. However, such a precautionary principle cannot be overstretched. It is well settled that there is no bar High Court’s power to re-appreciate evidence in an appeal against acquittal. Paragraph 14 to 16 of the aforesaid judgment are quoted as under:-

14. It is fundamental in criminal jurisprudence that every person is presumed to be innocent until proven guilty, for criminal accusations can be hurled at anyone without him being a criminal. The suspect is therefore considered to be innocent in the interregnum between accusation and judgment. History reveals that the burden on the accuser to prove the guilt of the accused has its roots in ancient times. The Babylonian Code of Hammurabi (17921750 B.C.), one of the oldest written codes of law put the burden of proof on the accuser. Roman Law coined the principle of actori incumbit (onus) probatio (the burden of proof weighs on the plaintiff) i.e., presumed innocence of the accused. In Woolmington v. Director of Public Prosecutions , the House of Lords held that the duty of the prosecution to prove the prisoner’s guilt was the “golden thread” throughout the web of English Criminal Law. Today, Article 11 of the Universal Declaration of Human Rights, Article 14 of the International Covenant on Civil and Political Rights and Article 6 of the European Convention on Human Rights all mandate presumption of innocence of the accused.

15. A characteristic feature of Common Law Criminal Jurisprudence in India is also that an accused must be presumed to be innocent till the contrary is proved. It is obligatory on the prosecution to establish the guilt of the accused save where the presumption of innocence has been statutorily dispensed with, for example, under Section 113-B of the Evidence Act, 1872. Regardless thereto, the ‘Right of Silence’ guaranteed under Article 20(3) of the Constitution is one of the facets of presumed innocence. The constitutional mandate read with the scheme of the Code of Criminal Procedure, 1973 amplifies that the presumption of innocence, until the accused is proved to be guilty, is an integral part of the Indian criminal justice system. This presumption of innocence is doubled when a competent Court analyses the material evidence, examines witnesses and acquits the accused. Keeping this cardinal principle of invaluable rights in mind, the appellate Courts have evolved a selfrestraint policy whereunder, when two reasonable and possible views arise, the one favourable to the accused is adopted while respecting the trial Court’s proximity to the witnesses and direct interaction with evidence. In such cases, interference is not thrusted unless perversity is detected in the decisionmaking process.

16. It is thus a well crystalized principle that if two views are possible, the High Court ought not to interfere with the trial Court’s judgment. However, such a precautionary principle cannot be overstretched to portray that the “contours of appeal” against acquittal under Section 378 CrPC are limited to seeing whether or not the trial Court’s view was impossible. It is equally well settled that there is no bar on the High Court’s power to re-appreciate evidence in an appeal against acquittal11. This Court has held in a catena of decisions (including Chandrappa v. State of Karnataka (2007) 4 SCC 415, State of Andhra Pradesh v. M. Madhusudhan Rao (2008) 15 SCC 582 and Raveen Kumar v. State of Himachal Pradesh (2021) 12 SCC 557) that the Cr.P.C. does not differentiate in the power, scope, jurisdiction or limitation between appeals against judgments of conviction or acquittal and that the appellate Court is free to consider on both fact and law, despite the self-restraint that has been ingrained into practice while dealing with orders of acquittal where there is a double presumption of innocence of the accused.””

Quite ostensibly, the Bench then holds in para 13 that, “We find that it is a case of circumstantial evidence and P.W.-2 is witness of fact and that too it is not even a case of last seen evidence. P.W.-2, wife of the deceased, had stated to the extent that her son called his father on which he stated that he will shortly come but he did not reach home and thereafter P.W.-1 gone out in search of the deceased. P.W.-1, brother of the deceased, has stated only this much that the dead body was found in a field and he had seen the accused persons coming from the side of the dead body. The recovery of weapon allegedly used in the incident was recovered after more than two months allegedly on pointing out of one accused Narendra Singh, which was sent to F.S.L. report for forensic report. From perusal of original record the Forensic Report dated 19.11.2012 (Ex. 24Ka) indicates that five articles including darati were sent for F.S.L. report on which the finding was given that on item no. 5-darati the bloodstained were disintegrated and therefore, were not sufficient to record any finding. In respect of shirt, baniyan (vest) and underwear it was found that the bloodstained were not sufficient / useless for the purpose of classification and although it was stated that insofar as the garments and soil is concerned, human blood was found.”

Be it noted, the Bench then observes in para 14 that, “We also noticed that the weapon recovered was a darati and the P.W.-6, the doctor, who has conducted the postmortem, stated that the nature of injuries could not have been caused by darati and it could have been caused only by sharp edged weapon only. This opinion assumes importance as darati is a sharp edged tool having spikes (kantedar) and thus will leave different cut marks on the body.”

As a corollary, the Bench then holds in para 15 that, “In such view of the matter, we find that the court below has rightly held that the weapon used could not be connected with the offence. We, therefore, in such circumstances, are of the opinion that it is a case of circumstantial evidence, where the chain of circumstances were not so complete so as to arrived at the conclusion that the accused persons have committed the offence by using the weapon allegedly recovered.”

It cannot be glossed over that the Bench then mentions in para 16 that, “We also find that the motive attributed is extremely weak, which is stated to be of the year 2003, whereas the incident is of the year 2011, that too in relation to daughter of the informant and niece of the deceased. The other circumstantial evidence are only to the extent that the dead body was found in a field and except the bald statement of P.W.-1 to the extent that the accused persons were coming from the direction of the spot, where dead body was found and recovery of alleged weapon which, infact, could not be connected with the crime, having been made after two months, there is no other evidence, we do not find that the findings recorded by the trial court are perverse in nature so as to warrant any interference by this Court in exercise of the powers under Section 384 Cr.P.C.”

In addition, the Bench then holds in para 17 that, “In the totality of circumstances, we find that the trial court has taken possible view of the matter on appreciation of the evidence and we do not find that it is a fit case for interference in the judgment of trial court.”

Finally, the Bench then concludes by holding in para 18 that, “The appeal is accordingly dismissed.”

In sum, it is beyond my pen’s capability to express in words how elegantly and meticulously everything has been explained clearly in this extremely commendable judgment by Justice Subhash Vidyarthi and Justice Vivek Kumar Birla of Allahabad High Court. We thus find that the Court has made it quite distinctly clear reiterating that circumstantial evidence should not only be consistent with guilt of accused but also be inconsistent with his innocence. The Court found no ground for interference against the order of acquittal by the Additional Sessions Judge of Badaun thus acquitting very rightly the respondent of charges under Sections 302 and 34 of IPC.

Be it noted, the Bench then observes in para 14 that, “We also noticed that the weapon recovered was a darati and the P.W.-6, the doctor, who has conducted the postmortem, stated that the nature of injuries could not have been caused by darati and it could have been caused only by sharp edged weapon only. This opinion assumes importance as darati is a sharp edged tool having spikes (kantedar) and thus will leave different cut marks on the body.” As a corollary, the Bench then holds in para 15 that, “In such view of the matter, we find that the court below has rightly held that the weapon used could not be connected with the offence. We, therefore, in such circumstances, are of the opinion that it is a case of circumstantial evidence, where the chain of circumstances were not so complete so as to arrived at the conclusion that the accused persons have committed the offence by using the weapon allegedly recovered.”

The Daily Guardian is now on Telegram. Click here to join our channel (@thedailyguardian) and stay updated with the latest headlines.

For the latest news Download The Daily Guardian App.

Legally Speaking

IN MEDICAL NEGLIGENCE COMPENSATION CLAIMS, MCI FINDINGS REGARDING DOCTORS’ PROFESSIONAL CONDUCT HAVE GREAT RELEVANCE: SC

Published

on

The Supreme Court in the case Harnek Singh vs Gurmit Singh observed while considering medical negligence compensation claims that the findings of the report of Medical Council of India on professional conduct of doctors are relevant.

from the date of SCDRC order as compensation thereafter the court directed the Respondents to pay to the complainants a total amount of Rs. 25,00,000 with interest @ 6% per annum. the complainants have made out a case of medical negligence against Respondents 1 and 2 and are entitled to seek compensation on the ground of deficiency of service and the court hold that the decision of the NCDRC deserves to be set aside. in reversing the findings of the SCDRC and not adverting to the evidence on record including the report of the MCI, the court is of the opinion that the NCDRC has committed an error. The case of medical negligence leading to deficiency in his services, the above-referred findings of the MCI on the conduct of Respondent 1 leave no doubt in our mind that this is certainly, observed by the bench.

The bench further observed that he opinion and findings of the MCI regarding the professional conduct of Respondent 1 have great relevance while referring to the contents in the report of MCI.

The issue raises in the above-mentioned case is weather a professional negligence is established by the complainant as per the standards governing the duty to care of a medical practitioner on the part of Respondent As the NCDRC gave its decision without referring to the MCI finding the complainants/appellants submitted, in an appeal submitted by the Apex Court. this complaint got summarily disposed of and they filed appeals before Medical Council Of India The Ethics Committee of MCI held one doctor medically negligent and issued a strict warning to be more careful during the procedure and to be more diligent in treating and monitoring his patients during and after the operation he complainants had also made a complaint to the Punjab State Medical Council against the professional misconduct of the doctors, hospitals, surgeons, While the proceedings were pending before the SCDRC.

the complaint and two among the opposite parties were allowed by SCDRC to directly pay Rs. 15,44,000 jointly and severally and Rs. 10,000 as costs as the appeal was allowed by The National Consumer Disputes Redressal Commission of these opposite parties and set aside the order of the SCDRC holding that negligence was not proved by the complainants.

The bench comprising of Justice UU Lalit, justice S. Ravindra Bhat and the justice PS Narasimha also observed and contended the question of intention does not arise that in the proceedings for damages due to professional negligence.

Continue Reading

Legally Speaking

WHERE THE CLAIMS OF EVENTS HAVE BEEN SUCCESSFULLY ESTABLISHED BY THE PROSECUTION, SECTION 106 OF THE EVIDENCE ACT APPLIES TO CASES: SUPREME COURT

Published

on

The Supreme Court in the case Sabitri Samantaray vs State of Odisha observed here chain of events has been successfully established by the prosecution, from which a reasonable inference is made out against the accused, the Section 106 of the Indian Evidence Act applies to cases.

in light of Section 106 of the Evidence Act the High Court rightly observed that as how the deceased lost his life and the onus was now on the appellants to disclose further the court observed that the appellants have failed to offer any credible defense in this regard and it can be deduced that the entire sequence of events strongly point towards the guilt of the accused appellants the burden was on the appellants to prove it otherwise as once the prosecution had successfully established the chain of events.

in the light of the statements made by all the sets of witnesses, with such an intention when analyzed and the fatal injuries sustained by the deceased at the relevant place and time further the court contended while dismissing the plea that it certainly makes out a strong case that death of the deceased was indeed caused by the appellants. in establishing intention of the accused-appellants for the commission of the offence, the prosecution has succeeded, the Court notice.

whenever an incriminating question is posed to the accused and he or she either evades response, or offers a response which is not true, in a case based on circumstantial evidence then in the chain of events such a response in itself becomes an additional link, when a case is based on circumstantial evidence As Section 106 of the Evidence Act from its burden to establish the guilt of an accused is in no way aimed at relieving the prosecution. where chain of events has been successfully established by the prosecution, it only applies to those cases from which a reasonable inference is made out against the accused.

the Section 106 it merely prescribes that when an individual has done an act and in no way exonerates the prosecution from discharging its burden of proof beyond reasonable doubt Thereafter the onus of proving that specific intention falls onto 9 the individual and not on the prosecution. If the accused had a different intention than the facts are specially within his knowledge which he must prove, with an intention other than that which the circumstances indicate. As the Section 106 of the Evidence Act postulates that the burden of proving things which are within the special knowledge of an individual is on that individual. Although the Section in no way exonerates the prosecution from discharging its burden of proof beyond reasonable doubt, observed by the Bench as the said provisions Since it is all based upon the interpretation of Section 106 Evidence Act, the contentions of either

the bench comprising of CJI NV Ramana, Justice Krishna Murari and the justice Hima Kohli observed and contended whenever an incriminating question is posed to the accused and he or she either evades response or that which being offers a response is not true then such a response in itself becomes an additional link in the chain of event, in a case based on circumstantial evidence.

Continue Reading

Legally Speaking

A candidate has no legal right to insist that the recruitment process set in motion be carried to its logical end: SC

Published

on

The Supreme Court in the present case Employees State Insurance Corporation vs Dr. Vinay Kumar observed that the recruitment process set in motion be carried to its logical end as the candidate does not have a legal right to insist.

The bench directed the Corporation-appellants to take a decision regarding whether to complete the recruitment process, bearing in mind all relevant aspects within a period of two months, while allowing the appeal further it stated there is however no doubt from holding that the employer is free to act in an arbitrary manner.

A recruitment process which is set in motion be carried to its logical end candidate who has applied does not have a legal right to insist that Even in the select list may not clothe the candidate with such a right and that too even in the inclusion of a candidate.

A recruitment process carried to its logical end and the process set in motion, the candidate who applied does not have the legal right and thereafter the court further contended that the cardinal principle we must bear in mind is that this is a case of direct recruitment, observed by the bench.

The Court further said that it is quite likely that any candidate who may have being desirous of applying, may not have applied being discouraged by the fact that the advertisement has been put on hold and by agreeing with the applicant the court contended and said that the direction to conclude the proceedings within 45 days is unsupportable.

The recruitment process set in motion be carried to its logical end and the Candidate who has applied does not have a legal right to insist the recruitment process.

The ground raised by the appellants for not proceeding with the procedure of direct recruitment is untenable, the respondent contended before the court and on the other hand on account of certain developments which took place, there may really be no need to fill up the post of Associate Professor and the respondent may not have a right as such, the appellant contended before the Apex Court.

The High Court which dismissed the writ petition filled by the Corporation and it directed the Corporation to conclude the process positively within a period of 45 day. the Corporation filed appeal before the Apex Court, Aggrieved with this direction.

The bench comprising of Justice KM Joseph and the justice Hrishikesh Roy observed that Even inclusion of a candidate in the select list may not clothe the candidate with such a right and it does not mean that the employer is free to act in an arbitrary manner, the bench clarified.

The recruitment process set in motion be carried to its logical end and the Candidate who has applied does not have a legal right to insist the recruitment process.

Continue Reading

Legally Speaking

ON THE PLEA TO STAY THE RETIREMENT OF EXISTING MEMBERS UNTIL THE ACTUAL JOINING OF NEW MEMBERS, SUPREME COURT ISSUES NOTICE

Published

on

The Supreme Court in the case Central Administrative Tribunal (Principal Bench) Bar Association, New Delhi v Union of India & Or’s observed in a petition till all the vacancies which arose from 2019-2022 are filled by actual joining of candidates by putting a stay on the impending retirement of all the existing Judicial/ Administrative Members of CAT the court further issued the notice.

In the plea it was stated in the petition that although 35 Judicial Members including the Chairman and 35 Administrative Members cater to 19 benches and 8 circuit benches, many benches of the Tribunals have become non functional because of the retirement of members at regular intervals as it was Preferred by Central Administrative Tribunal (Principal Bench) Bar Association, New Delhi.

Furthermore, the petition stated the Jabalpur Bench, Cuttack Bench, Lucknow Bench, Jammu and Srinagar Bench are left with only one member either Judicial or Administrative because of which no division bench can be constituted there. As on 31st March, 2022, the Guwahati Bench has become totally non-functional as no Member is available there.

Justice Chandrachud stated by taking a note of the above submissions:

A bench can’t be constituted with one member.

Justice Chandrachud further asked to submit an up-to-date chart with regards to the number of members who are present in the various benches of CAT and ordered the counsel for the Central Administrative Tribunal (Principal Bench) Bar Association, New Delhi to do the same.

Justice Kant further added by taking a note of the above submissions:

The members whose term is likely now to expire in Future, give the details of those members.

The benches of the Central Administrative Tribunal will become non-functional if the aforesaid situation continues for a couple of more months, more than half of the sanctioned stated in the plea.

AOR Amita Singh Kalkal, has filled a plea before the Supreme Court.

The bench of comprising of Justice DY Chandrachud and the justice Surya Kant by making a note of the above submissions ordered to issue a notice and in addition the liberty to serve the Central Agency.

The bench ordered to comply with the same and listed the matter on 13th May.

Continue Reading

Legally Speaking

Supreme Court upholds disciplinary action against judicial officers for showing undue favour to a party in the worst kind of judicial dishonesty

Published

on

The Supreme Court in the case Muzaffar Hussain versus State of Uttar Pradesh observed a judicial officer in Uttar Pradesh for passing orders to unduly favour certain parties for taking against the disciplinary action.

The High Court reduced the punishment as curtailment of pensionary benefits by 70% and refused to interfere with the findings and the officer approached the Supreme Court for Challenging the High Court’s verdict.

A writ petition was filed before the High Court challenging the punishment by the officer. In 2005, the Allahabad High Court initiated disciplinary enquiry against him for misconduct and found the charges to be proved. On the recommendation made by the Full Court, the State of Uttar Pradesh imposed a punishment of curtailment of his pensionary benefits by 90% to join the Central Administrative Tribunal as a judicial member in 2003, the officer took Voluntary Retirement from Service.

Supreme Court observed while dismissing the appeal that the appellant had misconducted himself while discharging his duties as a judicial officer and there was enough material and evidence to show that. to unduly favour the subsequent purchasers of the acquired lands who had no right to claim compensation, and that such orders were actuated by corrupt motive, and had passed the judicial orders in utter disregard of the specific provisions of law.

The bench of Justice Bela Trivedi, an judgement authored noted:

the public servants are like fish in the water, none can say when and how a fish drank the water”. A judge must decide the case on the basis of the facts on record and the law applicable to the case and if he decides a case for extraneous reasons, then he is not performing his duties in accordance with law. As often quoted, a judge, like Caesar’s wife, must be above suspicion. The extraneous consideration for showing favour need not always be a monetary consideration further she said that In our opinion, showing undue favour to a party under the guise of passing judicial orders is the worst kind of judicial dishonesty and misconduct.

while being the Additional District Judge at Agra during 2001 to 2003, the officer named Muzaffar Hussain and the charge was that in a batch of land acquisition matters in violation of settled principles in order to unduly favour certain subsequent purchasers had exorbitantly enhanced the compensation.

Thereafter the Apex Court added that under Article 235 of the Constitution of India the High Court had perfectly justified in exercising its supervisory jurisdiction, under these circumstances.

The division bench comprising of justice DY Chandrachud and the justice Bela M Trivedi observed under the guise of passing judicial orders is the worst kind of judicial dishonesty and misconduct and that showing undue favour to a party.

The Court stated, the case must be decided by the Judge on the basis of the law applicable to the case and the facts on record. He is not performing his duties in accordance with law if he decides the case or extraneous reasons.

Supreme Court observed while dismissing the appeal that the appellant had misconducted himself while discharging his duties as a judicial officer and there was enough material and evidence to show that. to unduly favour the subsequent purchasers of the acquired lands who had no right to claim compensation, and that such orders were actuated by corrupt motive, and had passed the judicial orders in utter disregard of the specific provisions of law.

Continue Reading

Legally Speaking

ONCE CIRP IS ADMITTED AND MORATORIUM IS ORDERED THE SARFAESI PROCEEDINGS CANNOT BE CONTINUED AGAINST CORPORATE DEBTOR: SC

Published

on

The Supreme Court in the case Indian Overseas Bank vs RCM Infrastructure Ltd observed that once the CIRP is initiated and the moratorium is ordered, the proceedings under the SARFAESI Act cannot be continued.

the appellant Bank could not have continued the proceedings under the SARFAESI Act once the CIRP was initiated and the moratorium was ordered as Section 14(1)(c) of the IBC has an overriding effect interest created by the Corporate Debtor in respect of its property including any action under the SARFAESI Act is prohibited with respect to any other law, any action to foreclose, to recover or to enforce any security, the court observed in view of this provision.

It was further being observed and was stated clearly that once the CIRP is commenced, there is complete prohibition for any action created by the Corporate Debtor to foreclose, recover or enforce any security interest are prohibited with respect of its property. All the actions including any action under the SARFAESI Act to foreclose, to recover or to enforce any security interest are prohibited, after the CIRP initiate, the legislative point is clear at this, the bench observed while referring to Section 14 and Section 238 of the IBC.

The contentions made by bank: on 13th December 2018 and as such, and on 3rd January 2019 the admission of the petition by the learned NCLT would not affect the said sale as the sale in question was complete on its confirmation and further stated that it will not deprive the Bank from receiving the said money in pursuance to the sale which has already been completed, merely because a part of the payment was received subsequently after initiation of CIRP.

under Section 10 of the Insolvency and Bankruptcy Code, 2016, an application was filled by the Corporate Debtor before NCLT. On 03.01.2019, the NCLT admitted the petition and a moratorium was also notified the auction was continued by the bank the auction proceedings and accepted the balance 75% of the bid amount and completed the sale, even after that. The NCLT passed an order setting aside the sale, while allowing the application filled by the Corporate Debtor and the appeal filled by the Bank was dismissed by the Bank and thereafter the bank approached the Apex Court. As to recover the public money availed by the Corporate Debtor, an E-­auction notice came to be issued by the Bank.

The bench comprising of Justice L. Nageswara Rao and the justice B R Gavai observed that in respect of its property including any action under the SARFAESI Act is prohibited in such a situation, any action to foreclose, to recover or to enforce any security interest created by the Corporate Debtor.

The contentions made by bank: on 13th December 2018 and as such, and on 3rd January 2019 the admission of the petition by the learned NCLT would not affect the said sale as the sale in question was complete on its confirmation and further stated that it will not deprive the Bank from receiving the said money in pursuance to the sale which has already been completed, merely because a part of the payment was received subsequently after initiation of CIRP.

Continue Reading

Trending