A Note on the Decision of Smt. Subaida Sulaiman v. Hamza

1991 (2) KLT 158

(M.P.R. Nair, Bar-at-Law, Ernakulam)

I submit with great respect that the Bench decision reported in 1991 (2) KLT 158 Smt. Subaida Sulaiman v. Hamza and others over-ruling the decision of a single judge in 1979, reported in (1985) KUC 270 (Joseph's case) did not lay down the correct law.

This decision, rendered in interpretation of Ss.52 to 54 of the Kerala Revenue Recovery Act, 1963 (Act 15 of 1963), is an instance of judicial legislation for-bidden under our Constitution. It is a rule in the construction of statutes that the ordinary meaning and grammatical sense of the words used should be adhered to. To travel outside the framework of the statute and supply words and intent which are absent in the statute cannot be regarded as part of the judicial functions. The words of Lord Coke in Heydon's case seem to be quite appropriate in this context: "It is to be borne in mind that office of the judges is not to legislate, but to disclose the express intention of the legislature, even if that intention appears to the Court injudicious". The words in a statute have to be given their ordinary signification and "if the words of a statute are in themselves precise and unambiguous, no more is necessary than to expound those words in their natural and ordinary sense, the words themselves in such case best declaring the intention of the Legislature" (See AIR 1961 SC 674).

Now let us analyse the facts of the case and the soundness of the decision. An application had been made under S.53 to set aside the sale of the landed property offered as security. This application was dismissed and the sale was confirmed. In the Revision Application filed before the Board of Revenue against the dismissal of the application under S.53, the sale was set aside on the ground that the price fetched at the sale was inadequate and insufficient. The assignee of the auction purchaser moved an Original Petition under Art.226 of the Constitution which was allowed by a learned single judge holding that the sale was not liable to be set aside merely on account of inadequacy of the price fetched at the sale. In appeal, the Division Beach confirmed the decision of the learned single judge.

The relevant sections of the 1963 Act provide, as follows:

"S.53: Application to set aside sale on ground of material irregularity, Mistake, etc.- (1) At any time 'within thirty days from the date of the sale of immovable property, application may be made to the Collector to set aside the sale on the ground of some material irregularity or mistake or fraud in publishing or conducting it; but, except as otherwise hereinafter provided, no sale shall be set aside on the ground of any such irregularity or mistake unless the applicant proves to the satisfaction of the Collector that he has sustained injury by reason thereof.

(2) If the application is allowed, the Collector shall set aside the sale and may direct a fresh sale.

S.54:- Order confirming or setting aside sale.-- On the expiration of thirty days from the date of the sale, if no application to have the sale set aside is made under S. 52 or S.53 or if any such application has been made and rejected, the Collector shall make an order confirming the sale:

Provided that if the Collector has reason to think that the sale ought to be set aside notwithstanding that no such application has been made or on grounds other than those alleged in any application which has been made and rejected, he may, after recording his reasons in writing, set aside the sale".

The Division Bench held that the Collector acting under S.53 or the proviso to S.54 can set aside the sale only if he has reasons to think that the sale ought to be set aside for the reasons mentioned in S.53. The court held: "De hors the reasons mentioned in S.53, the Collector has no jurisdiction under S.53 or under the proviso to S.54". In this view, the decision in Joseph's case was overruled.

What the Court had said has rendered the proviso to S.54 nugatory. To hold that the contours of legislative intent in enacting the proviso to S.54, which empowers a Collector to act on grounds other than those alleged in any application which has been made and rejected, after recording his reasons in writing have been identified by the grounds mentioned in S.53, is to re-write S.54 altogether. The fact that the Collector is free to act even on grounds other than those urged in an application, but is enjoined to give his reasons in writing, disproves the theory projected by the Division Bench that the grounds for setting aside the sale under the proviso to S.54 should be the same as those mentioned in S.53. Should the Collector acting under the proviso to S.54 give additional reasons for setting aside the sale if the grounds are those contained in S.53?

I submit that the plain and unambiguous language in the proviso to S.54 of the Act has been given a meaning totally different from the meaning intended by the legislature by the express words employed in the statute. Inadequacy of price would have been a ground under the proviso to S.54, but not under S.53. The decision, in my submission, needs reconsideration.

Loan and Liability under S.69 of the Kerala Co-operative

Societies Act.

(By T.M. Rajasekharan, Advocate, Calicut)

Can a surety of an employee of a Co-operative Bank for a huge sum of nearly One Lakh Rupees be allowed to simply and walk away on the technical plea that the surety is not against "A loan granted by the Society"? I think the learned Judge decided N.S. Coop. Bank Ltd. v. John (1991(1) KLT 7) erroneously that S.69(i)(g) of Co-operative Societies Act has no application to such surety.

The word loan embraces all arrangements and contracts that are acknowledged as debt. The word grant among other things means concede as indulgence, allow to have to admit as true etc. Thus the second respondent in the instant case who gave written undertaking owing responsibility for the entire stock and agreeing to indemnify the deficit which was already quantified, has clearly acknowledged the debt due to the bank by his son. Undertaking a guarantee need not necessarily be prior to the detection of the deficit. Whether the surety is for a debt to be created or that has already come into being is immaterial and the indemnification does not get annulled by such reasons.

It is my respectful view that the Co-op. Tribunal as well as the High Court ought to have gone deeper into the meaning of the term "loan granted" before the decision was rendered. The position of law propounded needs reconsideration.

Secondly, the view now held by the High Court is tend to produce further complications. For, if the Bank wants to move against the surety in the instant case, it will have to institute a suit for realisation before a Civil Court, while such a course against the employee (who is a necessary party) would be a bar in view of the provision of S.69 of the Co-op. Act. The anomalous situation of splitting the cause of action, course of remedy, multiplicity of forum and duplication of proceedings would not help any one and the very purpose of the S.69 of the Act would stand defeated.

Suspension of Sentence

(S.A. Karim, Advocate, Thiruvananthapuram)

Section 389 of the Criminal Procedure Code, 1973 deals with suspension of sentence pending appeal and release of accused on bail. It arises as soon as an accused is convicted and sentenced. In other words suspension of sentence is applicable only to convicts. Under sub-section (3), the convicting court can suspend the sentence, if the. conviction does not exceed three years, and if the conviction is on a non bailable offence. In both the situations, the convict should have been on bail at the time of suspending the sentence. It intends to give sufficient time to prefer appeal and obtain suspension of sentence. This sub section prevents the convict from going jail immediately on conviction for offences which are not grave. It is a great relief to persons who happen to become convicts by misfortune or similar other circumstances. Once the appeal is lost, he has no other way, but surrender to custody.

If appeal fails, the convict can invoke the revisional jurisdiction of the court under S.397 of the Code. This is possible if the appellate judgment or order is either, illegal, improper or irregular. Once revision is admitted, the execution of sentence can be suspended. The relevant portion of S.397 reads-

"When calling for such records, direct that the execution of any sentence or order be suspended, and if the accused is in confinement, that he be released on bail or on his own bond pending the examination of record".

The wording of the section indicates the convict can either be free or in confinement before filing revision and obtain suspension of sentence.

In law a convict can never be free. He may be on bail or under warrant of arrest. The sentence of a convict under warrant of arrest cannot be suspended, unless he appears or is b-ought before court. The expression suspension of sentence in S.397 docs not stipule-: that the convict shall be in custody at the time of filing revision. It happens, if the appellate court suspends the sentence of the convict-appellant on dismissal of appeal and releases him on bail as under sub-section (3) of S.389. But appellate court is reluctant to suspend the sentence on the failure of appeal in the absence of specific provision.

Appeal and revision are the continuation of trial. Appellate and revisional courts have all the powers of trial court unless otherwise specifically prohibited. An accused is presumed to be innocent until finality of judgment or order is reached. This is the well settled position of law. If this is accepted, the appellate court can suspend the execution of sentence on the dismissal of the appeal and release the accused on bail as in the case of sub-section (3) of S.389. This position is further clarified in S.397 of the Code. If so, a good member of accused can avoid the convict home.

Muslim Polygamy and the Special Marriage Act

(Advocate S.A. Karim, M.Com, LL.B., Vanchiyoor, Thiruvananthapuram)

In Anwar Ahamed v. State of Uttar Pradesh and another, reported in Criminal Law Journal, page 717, Mr. Justice S.I. Jafri of the Allahabad High Court held that a second marriage solemnised under the Special Marriage Act, 1954 amounts to bigamy and is punishable under S.494 of the Indian Penal Code, and that the Special Marriage Act supercedes the Muslim personal law (shariath). With due respect, I submit this interpretation and finding seems erroneous and needs re-consideration.

Anwar Ahamed had married Hasin Begum according to shariath. While the first marriage subsisted, he married another lady, Nusrath Sultnana alias Shirin, under the Special Marriage Act. The husband and both wives are Muslims.

Now, it is obvious that the Hindu Marriage Act, 1955 provides for monogamy among Hindus under S.5(i) readwithS.11. Similarly, S.4 of the Special Marriage Act 1954 leaves no doubt that marriages under this Act are monogamous. Also, under S.60(2) of the Indian Christian Marriage Act of 1872, monogamy is prescribed. Since the Parsi law also enforces monogamy, all codified personal laws of India are unanimous on the position regarding monogamy.

The position is entirely different in Muslim personal law. A Muslim man, under shariath as well as the current law of India, is permitted to have four wives at the same time, but not more, with the condition that he should be just between them. It is well-known that this rule reflects the conditions prevailing in Arabia when the Arabs fought several wars and a large number of men died in them, so that many women became widows and there were more women than men. To avoid the resultant contingency of immorality and destitution, shariath dictated that able-bodied men may have more than one wife, but limited their number to four. Before this theory came into existence men had kept any number of spouses. Might was the right prevailing then. This is the brief history of the four wife theory. Though indirect legislative restrictions have been imposed in India, marriage and divorce of Muslims are still governed under shariath.

The objects and reasons stated in the Special Marriage Act touch several aspects of the Hindu Marriage Act. It never refers to the marriage Saws of either Muslims, Christians, Parsis, or Jews. This indicates the Special Marriage Act is intended only for Hindus. When Parliament enacted this Act, shariath was in force. If the legislature had desired to bring Muslims under the Special Marriage Act, it would have stated so. In the absence of such a reference, S.43 of the Special Marriage Act cannot be interpreted to include Muslims.

Shariath permits the existence of more than one wife at a time. It does sot mean ail the marriages snail be under the Muslim personal law. A man who comes under shariath cannot be found guilty under another Act for another marriage, as long as he has not violated the terms of shariath. In the instant case, both marriages are legal and within the ambit of shariath. Thus, S.43 of the Special Marriage Act has no relevance and the conviction for bigamy under S.494 Indian Penal Code is illegal and void.

Section 138 of Negotiable Instruments Act, 1988-Good Law?

(P. Rajan, Advocate, Tellicherry)

The newly introduced S.138 of the Negotiable Instruments Act is with an obvious purpose--to check the menace of issuing cheques by unscrupulous individuals knowing full well that sufficient amount is not available in their Bank account and punish such persons at the earliest. Civil suits often, if the drawer has necessary means; complaint of cheating under S.420 Crl. P.C, rarely were the recourses open to the aggrieved persons hitherto in the event of dishounour of cheques. The introduction of Ss.138 to 142 is with the good intention of helping the aggrieved and is a real relief even to bankers. But the point to ponder is whether these provisions have plugged all the loopholes to prevent the escape of a clever drawer.

The cardinal principle of criminal justice-Mens-rea is the primary element of any criminal offence. Intention or knowledge is not a factor at all in deciding a case under S.138 and the object is to eradicate mushroom-growth of dishonouring of cheques by bankers. Rather to serve a social purpose, the lawmakers have taken a determined deviation from the general principles of criminal jurisprudence by even giving an exclusion clause as slated under S.140 of me Act. On a careful analysis of the new Chapter, i.e. XVII, few doubts would crop up regarding the requirements to be complied with by a payee before the institution of prosecution.

Sub-section (a) to S.138 speaks of presentment of cheque for collection of the amount. Two categories of cheques are specified considering the validity of the cheque, 6 months as generally or period of validity of the cheque, if given. Hence on first presentment if the cheque is bounced, can it be presented again by the payee with the good hope or on the request of the drawer within the period of 6 months or as the case may be. Since the section is silent about this, successful prosecution also is not possible if a complaint is instituted on a cheque presented more than once. Courts also cannot hold otherwise as the law now stands. Another anomalous feature of S.138 is giving of notice in writing by a payee or holder to the drawer. Sub section (b) to S.138 provides for giving notice in writing within 15daysonreceiptofintimationfrom the bank regarding the return of the cheque as unpaid. S. 138 sub-section (c) gives 15 days time to make payment of the amount to payee on 'receipt of notice'. If notice as required under S.138(b) is issued and the other party does not receive it or is unable to accept, what follows? To secure speedy redressal of grievance even S.46S Cr. P.C. has been bye-passed and time given for launching prosecution is-only one month as given in 8.142(b). If the requirements narrated in sub-section (a) and (b) of S.13S are not resorted to, the prosecution becomes a nullity. Issuing a cheque by itself is no offence and commission completes only on the happening of certain contingencies. S.30 of the Negotiable Instruments Act 1881 also speaks that in the event of dishonour of cheques or bill of ' exchange, due notice to the drawer is mandatory and without notice, holder of the instrument gets no cause of action, unless dispensed with as detailed under S.90. So written notice given in S.138(b) has got its own significance and the service of the same on the drawer needs clarification. Other modes of notice like newspaper publication etc. will tantamount to effective service is worth considering for effective implementation of the provision. Another hurdle to cross by the parties is the reason under which bouncing of cheque has taken place. Only two reasons have been given, (1) insufficiency of fund (2) if the cheque amount exceeds than what has been arranged or available with the bank. Banks could refuse to honour cheque on different grounds as their memos reveal. Apart from the two reasons given, under S. 138, amount is not paid due to some other reason, can a prosecution be launched is also cannot be said with certainty. If the drawer asks the bank to stop payment, after issuance of the cheque, and on that reason can a complaint be filed?

In short, even though the idea and intention of the statute makers are appreciable, it is desirable to have at least necessary explanations and illustrations to the sections in order to make them doubt-free; if not amendments since the Act is in its infancy, to make prosecutions under S.138 time-saving and successful.