1 REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.447 OF 2021 (Arising out of SLP (CRL.) No. 1549 of 2021) SANDEEP KHAITAN, RESOLUTION PROFESSIONAL FOR NATIONAL PLYWOOD INDUSTRIES LTD. … APPELLANT(S) VERSUS JSVM PLYWOOD INDUSTRIES LTD. & Anr. … RESPONDENT(S) J U D G M E N T K.M. JOSEPH, J. Leave granted. 1. The appeal is directed against order dated 04.02.2021 passed by the Hon’ble High Court of Guwahati. In the impugned order, the High Court has allowed an interlocutory application filed by Signature Not Verified Digitally signed by Indu Marwah Date: 2021.04.22 the Respondent No. 1 to allow it to operate its 15:30:43 IST Reason: bank account maintained with the ICICI Bank Bhubaneswar and to unfreeze the bank account of its creditors over which the lien has been created and the accounts frozen pursuant to the lodging of an FIR by the appellant before us. It was made subject to conditions. 2. An application under Section 7 of the Insolvency and Bankruptcy Code, 2016, hereinafter referred to as the IBC was admitted on 26.08.2019 against one National Plywood Industries Limited (NPIL). The Appellant was appointed as the Interim Resolution Professional. A moratorium also came to be passed by the very same order within the meaning of Section 14 of the IBC. The Appellant came to be appointed as the Resolution Professional by an order dated 08.11.2019. In the meantime, the Respondent No.1 claiming to be an operational creditor lay the claim for the amounts due to it from the Corporate Debtor before the Appellant vide communication dated 22.11.2019. It would appear that the former Managing Director of the Corporate Debtor challenged the order of the NCLT, Guwahati, admitting the application under Section 7. The NCLAT by order dated 24.11.2019 dismissed the appeal interalia holding that the application under Section 7 was not barred by limitation. Civil Appeal No. 9142 of 2019 filed by the former Managing Director of the Corporate Debtor came to be however allowed by this Court by an order dated 20.01.2020. The NCLT was directed to consider the matter in accordance with law. It would appear that on 28.01.2020 interlocutory application 7 of 2020 filed by the former Managing Director of the Corporate Debtor seeking an injunction restraining the Respondents therein from interfering in the operation of the Corporate Debtor and to disperse the cost of the CIRP was disposed of interalia as follows: - i. “Today the Respondents submitted across the Bar that except ratifying the expenses of the IRP, no major decisions have been taken by the COC in the yesterday’s COC meeting. Both the respondents informed that they are conscious about the order passes by the Hon’ble Supreme Court and the legal consequences thereof. ii. In view of the above submissions of the respondents, this Tribunal expects that the respondents would maintain status-quo in respect of the IRP proceedings. As the main company petition was remanded back to the Hon’ble NCLAT for fresh disposal in accordance with law, this Tribunal is of the considered opinion that the petitioner has to approach the Hon’ble NCLAT for any further directions in the above matter and accordingly above application stands disposed of with the above observations. Even otherwise, the order of admission of the company petition has not attained finality and, therefore, no interim orders as prayed for needs to be passed today. iii. In the result, IA No. 07 of 2020 is disposed of with the above observations.” Thereafter there is order dated 20.03.2020 passed which we will advert to. 3. It is the case of the Appellant that the former Managing Director of the Corporate Debtor in conspiracy with the Respondent No.1 engaged in an illegal transaction to the tune of Rs. 32.50 lakhs without authority from the Appellant and in violation of Section 14 of the IBC. It is his complaint that initially, the Managing Director made a transaction of Rs. 500. Thereafter, he proceeded by virtue of 4 consecutive transactions to transfer a sum of Rs. 32.50 lakhs to the Respondent No. 1. It is also complaint of the Appellant that the former Managing Director proceeded to transfer another sum of Rs. 3.29 lakhs from another account and the amount was transferred to his close associate. 4. On 23.04.2020, the Appellant filed a cyber complaint. This was followed on the same date by filing an application under Section 19 read with Section 23 (2) of the IBC alleging non corporation by the previous management of the Corporate Debtor. On 27.04.2020, the Appellant got lodged an FIR. On 04.05.2020 the ICICI Bank created a lien upon the bank account of the Respondent No. 1 based on the allegedly illegal transaction. The next development to be noticed is the order dated 20.05.2020 passed by the NCLT, Guwahati. The order is passed in I.A. No. 37 of 2020. The relief sought therein was for direction to the Directors of the Corporate Debtor to hand over the management of the company. The order reflects the controversy relating to the payment of Rs. 32.50 lakhs violating the moratorium. Tribunal finds that the directors of the Corporate Debtor were not giving maximum assistance. On the basis of its findings the tribunal issued directions to the suspended Board of the Corporate Debtor to cooperate with the Appellant. The Auditors were to complete the audit expeditiously interalia. More importantly the Directors were directed to refund the amount withdrawn less the amount if any paid to the alleged supplier as the cost of raw materials. The interlocutory application was posted before the regular bench for hearing after lifting the lockdown. 5. A perusal of the order reveals that the Directors of the company sought to defend the withdrawal of Rs.32.50 lakhs as one intended to pay for the raw materials. It is further noticed that the Tribunal noticed that there was no proof for the same. More importantly it was found that even if done to discharge debt due to supplies during the CIRP, without permission and knowledge of the Resolution Professional, it was in violation of Section 14 of the Code. 6. The Appellant moved an application for review of the order dated 20.05.2020. The Tribunal in its order dated 05.06.2020 noticed the limitations flowing from Rules 154 and 155 of the NCLT, Rules, 2016 in the matter of review. It is observed that for the reasons highlighted in the 20.05.2020 the former Directors of the Corporate Debtor are found prima facie liable to refund the amount unauthorisedly withdrawn from the account of the Corporate Debtor. It is also noticed that the Directors of the suspended board were not made respondents. The application for review came to be dismissed. 7. The genesis of the impugned order is the FIR lodged against the Appellant and arose from the payment effected into the account of Respondent No.1 in a sum of Rs. 32.50 lakhs. The said FIR came to be challenged in a petition under Section 482 of the Cr.P.C. by the Respondent No.1 by filing Criminal Petition No. 454 of 2020. In the same the Appellant also filed I.A. No. 453 of 2020. 8. On 19.01.2021 the NCLT, Guwahati passed an order in I.A No. 37 of 2020. By the said order the Appellant was directed to discharge his duties as per the provisions of the IBC. Thereafter, it also passed the following directions: - i. “The Learned Counsel for the Respondents has confirmed that the Suspended Management has been co-operating and providing assistance to RP to complete the CIRP in time. The Corporate Debtor is directed to submit its reply Affidavit to the allegations made relating to the transactions of Rs. 35.795 lakhs serving a copy upon the RP. ii. Any amount of the Corporate Debtor lying in any Bank is to be transferred to the account being operated by the RP. Banks having account of the Corporate Debtor are directed to lift the lien, if any, on any amount of the Corporate Debtor and allow the operation of the account by the RP only. iii. The RP is directed to utilize the funds of the Corporate Debtor under CIRP judiciously keeping the Unit in its full operation.” 9. Thereafter, in the petition filed by the Respondent No.1 under Section 482, the High Court admitted the petition. The case was directed to be listed for regular hearing in usual course. (According to the Appellant the High Court had directed investigation to be continued. This is not seen reflected in the order which is produced). In the I.A No. 453 of 2020 filed in the Section 482 resulting in the impugned order, the prayers sought has already been noted. It is to allow the Respondent No.1 and its creditors to operate their bank account over which lien has been created and those accounts which have been frozen based on the FIR dated 27.04.2020. THE IMPUGNED ORDER 10. After noticing the contentions of the parties, the Learned Single Judge in the impugned order proceeds to hold as follows:- i. “From the material on record, it is apparent that there was business relation between the petitioner company and the NPIL, which is evident from the various documents annexed to the petition. Only question raised in this FIR is that the money was transferred by the suspended CMD without any authority, inasmuch as, the entire state of affairs of NPIL was vested with the Respondent No. 2, who has been appointed as resolution professional. Only incriminating allegation against the petitioner is that the suspended CMD has personal interest in the petitioner company being an associate company, which is however, a disputed fact required to be investigated by police. ii. Be that as it may, having considered the entire gamut of the matter and the nature of accusation brought against the present petitioner, I am of the view that freezing of all the bank account as indicated above would certainly cause unnecessary hardship, which may not be necessary for the investigation of the present FIR in view of the nature of the accusation made therein as well as in view of the offer made by the petitioner to furnish a bond. Therefore, in my consider view, the petitioner is entitled to the interim relief as sought for. Accordingly, it is provided that the lien created upon the bank account no. 149905001306 maintained with the ICICI Bank Limited, Chandrasekarpur Branch, Bhubaneswar be lifted, the petitioner and its creditors shall be allowed to operate the bank account over which lien has been created and the accounts have been frozen pursuant to the instruction of the Respondent No. 2 in connection with Margherita P.S. Case No. 0112/2020, until further order of the Court. iii. It is however, made clear that the interim relief granted to the petitioner as above with regard to unfreezing the bank account and lifting of lien shall be subject to the condition that the petitioner shall withdraw the WP (C) No. 118/2020 filed before the Itanagar Permanent Bench of this Court and furnishing an indemnity bond undertaking to refund the amount of Rs. 32.50 Lakhs if required, subject to final outcome of the criminal case.” 11. We heard the Learned Counsel for the Appellant Shri Anand Varma and the Learned Counsel for the Respondent No. 1, Shri Harish Pandey. The State is represented by Shri Shuvodeep Roy. SUBMISSIONS 12. The Learned Counsel for the Appellant contended that the impugned order proceeds on an erroneous basis namely that the allegations about the co-accused (former Managing Director of the Corporate Debtor) having an interest in the Respondent No.1 Company was a disputed fact which had to be investigated. It is the case of the Appellant that there is a report of the auditing firm. Also, the said finding of the High Court is contrary to the documents of the Respondent No. 1 itself. It is also urged that the High Court itself has permitted the investigation to go on in the petition under section 482. Secondly, he pointed out that the impugned order was contrary to Section 14 of the IBC. He drew support from the judgment of this Court in P Mohanraj vs. M/S. Shah Brothers Ispat Pvt. Ltd. in Civil Appeal No. 10355 of 2018. According to him, the whole purpose of the moratorium would be defeated if members of the previous management of the Corporate Debtor are left free to transfer the funds of the Corporate Debtor. The Respondent No. 1 was a related party of the Corporate Debtor. He reiterates that with the appointment of Appellant as the Resolution Professional under Section 25 (2)a of the IBC he is to take custody and control of all the assets of the Corporate Debtor. Finally, he also emphasized the nature of the jurisdiction under Section 482 of the Cr.P.C. The High Court has overlooked the limits of its power in passing the impugned order, he complains. He points out that the order admitting the application under section (7) has not been stricken by the remand by this Court of the appeal against the order admitting the application. 13. Per contra Shri Harish Pandey, Learned Counsel, contended that the order may not be interfered by this Court. The Respondent No.1 was a related party and it was always known to be such related party. He referred to the fact that the Respondent No.1 was supplier of raw material to the Corporate Debtor. He pointed out goods worth more than Rs.2 crores have been supplied by it to the Corporate Debtor. Payments were being made. In fact, a sum of more than Rs.39 lakhs is further due from the Corporate Debtor to the Respondent No. 1. It is emphasized as a MSME it would cause grave prejudice to it if the impugned order is set aside. 14. It is the case of the Respondent No. 1 further that the business relationship between the Respondent No. 1 and Corporate Debtor has existed for more than 15 years. The Corporate Debtor has been declared a sick industry on 18.04.2006. It was nursed back by the Respondent No. 1. Our attention is drawn to the minutes of the first meeting of the Committee of Creditors dated 23.09.2019. The minutes reveal that committee of creditors observes that a substantial part of the raw materials is purchased from Respondent No.1 and that the relatives of the Corporate Debtor directors or shareholders hold more than 51 percent shareholding of the first respondent. It is further noted that the processes to assess the veracity and reasonableness of the transaction in such situation were let known and the purchases/sales must be benchmarked against arm’s length transactions and open market transactions. (We may also notice that the meeting resolved that all the banks were to act on the instructions of the appellant interalia.) It is the case of the Respondent No. 1 that right from the beginning, it was known that the Respondent No. 1 was a related party. It is the further case of the Respondent No. 1 that its claim for over 6 crores of rupees was vetted, verified and admitted by the Appellant. After the commencement of CIRP Respondent No. 1 had made regular substantial supplies to the Corporate Debtor for which the payment were being made (they relate to the period from 26.08.2019 to 31.03.2020). This is shown as amounting to Rs. 2,70,84,982. The Respondent No. 1 lays store by the order of the NCLT, Guwahati dated 28.01.2020 which we have already referred to. E-mails addressed to the Appellant to clarify did not evoke any response. In March 2020, orders were placed by the Corporate Debtor for approximately Rs. 30 lakhs. The lockdown intervened. On 18.04.2020 it is not disputed that the Corporate Debtor made a payment of Rs 32.50 lakhs through online net banking transfer against material supplied during the period that the corporate debtor was under CIRP. The Learned Counsel for the Respondent No.1 would point out that the order of the NCLT dated 20.05.2020 passed by the NCLT directed the directors of the Corporate Debtor to refund the amount withdrawn less any amount supplied to the alleged supplier. It is therefore, pointed out creating a lien on the accounts of the Respondent no. 1 was not justified. The Learned Counsel also drew our attention to the order dated 24.03.2021 passed by the NCLT Guwahati Bench. This is in an effort at showing the manner in which the appellant has been functioning. The Tribunal in the said order refers to the Impugned Order and the Interim order passed by this Court in this matter. The Tribunal noted that the production has been suspended and layoff notice is also issued in regard to the Corporate Debtor. The objectives of the IBC are being defeated on the basis of the claims and the FIR interalia. The Appellant was directed to file the copy of the FIR in this case among other documents. The Learned counsel for the Respondent no. 1 would submit that the having regard to the orders passed by the tribunal the Impugned Order passed by the High Court may not be interfered with. Having regard to the dismissal of the review petition filed against the 20.05.2020 there is no merit in the present appeal. 15. The Learned Counsel for the Appellant would point out that the Appellant is prevented from disbursing the salary of the workers. Nearly four months’ salary would be disbursed with the amount which was paid by the former management without any authority as noticed. It is the case of Appellant that the transactions between the Respondent No.1 and the Corporate Debtor was not authorised by the Appellant during the period from 21.02.2020 to 27.04.2020. FINDINGS 16. The contours of the jurisdiction under 482 of the Cr.P.C. are far too well settled to require articulation or reiteration. Undoubtedly, in this case by 26.08.2019 an application filed under section 7 of the IBC was admitted, the appellant appointed as the interim resolution professional and what is more a moratorium declared. With the declaration of the moratorium the prohibitions as enacted in section 14 came into force. It is clear that the assets of the company would include the amounts lying to the credit in the bank accounts. There cannot be any dispute that well after the order under section 14 was passed, a sum of Rs. 32.50 lakhs has been remitted into the account of Respondent No.1 company. No doubt it is the definite case of the Respondent No.1 that it has had business relations with the Corporate Debtor since more than 15 years and that the amount remitted in its account represented the price of the materials supplied to the Corporate Debtor. Apart from this amount a sum of rupees more than Rs.39 lakhs is still due. It is to be noticed that though an appeal was filed against the order admitting the petition under Section 7 the same was dismissed by the NCLAT. The appellate order was undoubtedly set aside by this court and the appeal remanded to the NCLT for its consideration. We would think that setting aside the appellate order of the NCLAT by this court and remanding the appeal would not have the effect of setting aside the order admitting the application. Initially, as was noticed by us an order was passed on 28.02.2020. The ambiguity created by the said order was removed by the subsequent order of the Tribunal dated 20.03.2020. In other words, by the order dated 20.03.2020 the NCLT, Guwahati ordered that the appellant was at liberty to act as per law and the words used in the earlier order dated 28.02.2020 relied upon by the Respondent No.1 were found to be a mere casual observation which did not culminate into any direction. We need not say anything further particularly in view of the fact that there is an FIR and which is pending consideration in the High Court also. It is significant only for us to notice that the Appellant is essentially aggrieved by the transactions representing a sum of Rs. 32.50 lakhs all of which took place after order dated 20.03.2020. 17. It may be true that in the interim order passed by the NCLT Guwahati, the Tribunal had directed the Directors to refund the amount of the Corporate Debtor less any amount paid for supplies. It is also true that the review petition filed by the Appellant is dismissed, essentially based on the limitations on the power of review. 18. The provisions of the IBC contemplate resolution of the insolvency if possible, in the first instance and should it not be possible, the winding up of the Corporate Debtor. The role of the insolvency professional is neatly carved out. From the date of admission of application and the appointment of Interim Resolution Professional, the management of the affairs of the Corporate Debtor is to vest in the Interim Resolution Professional. With such appointment, the powers of the Board of Directors or the partners of the Corporate Debtor as the case may be are to stand suspended. Section 17 further declares that the powers of the Board of Directors or partners are to be exercised by the Interim Resolution Professional. The financial institutions are to act on the instructions of the Interim Resolution Professional. Section 14 is emphatic, subject to the provisions of sub section (2) and (3). The impact of the moratorium includes prohibition of transferring, encumbering, alienating or disposing of by the Corporate Debtor of any of its assets. 19. Sub section 2 reads as follows:- “The supply of essential goods or services to the corporate debtor as may be specified shall not be terminated or suspended or interrupted during moratorium period.” 20. Essential goods and services referred to in Section 14(2) has been defined by Regulations. Regulation 32 of the INSOLVENCY AND BANKRUPTCY BOARD OF INDIA (INSOLVENCY RESOLUTION PROCESS FOR CORPORATE PERSONS) REGULATIONS, 2016, reads as follows:- "Essential Supplies. The essential goods and services referred to in section 14(2) shall mean- i. Electricity; ii. water; iii. telecommunication services; and iv. information technology services, to the extent these are not a direct input to the output produced or supplied by the corporate debtor. Illustration- Water supplied to a corporate debtor will be essential supplies for drinking and sanitation purposes, and not for generation of hydro-electricity.” 21. Also, undoubtedly Section (2A) of Section 14 of the THE INSOLVENCY AND BANKRUPTCY CODE, 2016 provides as follows: “Where the interim resolution professional or resolution professional, as the case may be, considers the supply of goods or services critical to protect and preserve the value of the corporate debtor and manage the operations of such corporate debtor as a going concern, then the supply of such goods or services shall not be terminated, suspended or interrupted during the period of moratorium, except where such corporate debtor has not paid dues arising from such supply during the moratorium period or in such circumstances as may be specified.” 22. This provision was inserted with effect from 28.12.2019. No doubt under this provision goods or services not covered by Section 14(2) are also covered. The call however is to be taken by the IRP/RP. Raw material supply could fall within the provision. The IRP/RP must take a decision guided purely by the object of the IBC and the provisions and the factual matrix. 23. With the appointment of Committee of Creditors, a Resolution Professional is to be appointed. The Resolution Professional is thereafter to conduct the resolution process and manage the operations. Section 23 (2) makes it clear that his power is the same as the powers of the Interim Resolution Professional. Undoubtedly, the Resolution Professional is bound to seek prior approval of the Committee of Creditors in maters covered by Section 28. 24. We have to also in this context bear in mind that the High Court appears to have, in passing the impugned order, which is an interim order for that matter, overlooked the salutary limits on its power under Section 482. The power under Section 482 may not be available to the Court to countenance the breach of a statuary provision. The words ‘to secure the ends of justice’ in Section 482 cannot mean to overlook the undermining of a statutory dictate, which in this case is the provisions of Section 14, and Section 17 of the IBC. 25. It would appear to us that having regard to the orders passed by the NCLT admitting the application, under Section 7, and also the ordering of moratorium under Section 14 of the IBC and the orders which have been passed by the tribunal otherwise, the impugned order of the High Court resulting in the Respondent No. 1 being allowed to operate the account without making good the amount of Rs 32.50 lakhs to be placed in the account of the Corporate Debtor cannot be sustained. The Learned Counsel for the Appellant has also no objection in the Respondent No. 1 being allowed to operate its account subject to it remitting an amount of Rs. 32.50 lakhs into the account of the Corporate Debtor. In such circumstances, Appeal is allowed. The Impugned order is modified as follows: i. The Respondent No.1 is allowed to operate its account subject to it to first remitting into the account of the Corporate Debtor, the amount of Rs 32.50 lakhs which stood paid to it by the management of the Corporate Debtor. The assets of the Corporate Debtor shall be managed strictly in terms of the provisions of the IBC. The Appellant as RP will bear in mind the provision of Section 14 (2A) and the object of IBC. We however make it clear that our order shall not be taken as our pronouncement on the issues arising from the FIR including the petition pending under Section 482 of the Cr.P.C. ii. We also make it clear that the judgment will not stand in the way of the Respondent No.1 pursuing its claim with regard to its entitlement to a sum of Rs.32.50 lakhs and any other sum from the Corporate Debtor or any other person in the appropriate forum and in accordance with law. There will be no order as to costs. ......................J. (UDAY UMESH LALIT) ......................J. (K.M. JOSEPH) New Delhi, April 22, 2021.


HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Judgment Reserved on 20.11.2020 Judgment Delivered on 08.12.2020 Court No. - 5 Case :- WRIT TAX No. - 646 of 2020 Petitioner :- M/S Indian Oil Corporation Limited Respondent :- Union Of India And 2 Others Counsel for Petitioner :- Shubham Agrawal,Sanyukta Singh Counsel for Respondent :- A.S.G.I.,Gaurav Mahajan Hon'ble Surya Prakash Kesarwani,J. Hon'ble Dr. Yogendra Kumar Srivastava,J. (Per Hon'ble Surya Prakash Kesarwani J.) 1. Heard Sri Shubham Agrawal, learned counsel for the petitioner and Sri Gaurav Mahajan, learned counsel for the respondent nos. 2 & 3. Learned counsel for the petitioner submits as under: 2. This writ petition has been filed for the following relief:- "(a) Certiorari quashing and setting aside the SVLDRS-3 dated 26.2.2020 (Annexure No.12) passed by the Designated Committee; (b) Mandamus directing the Designated Committee to accept the SVLDRS-1 Declaration (Annexure No.8) filed by the petitioner. (c) Mandamus directing the respondent No.1 to delete SKO from Fourth Schedule of Central Excise Tariff Act, 1944, retrospectively, wef 1.7.17; Or in the alternative (d) Declaring continued existence/non-deletion of SKO from the Fourth Schedule of Central Excise Tariff Act, 1944, after 1.7.17, to be violative of section 174 of Central Goods and Service Tax 2017 and also violative of Entry No.84 of List - I (Union List) of the Seventh Schedule to Constitution of India, which has been amended by the Constitution (One Hundred and First) Amendment Act, 2016." 3. This writ petition was heard at length on 20.11.2020 and the submissions made by learned counsels for the parties were noted. Submission on behalf of the petitioner 4. Learned counsel for the petitioner has submitted as under :- (i) A show cause notice dated 17.10.2007 under the Central Excise Act, 1944 was issued to the petitioner for excise duty of Rs.2,96,99,001/- not paid for the period from 01.11.2002 to 31.03.2005. Penalty was also sought to be imposed under Section 11-A of the Central Excise Act 1944 read with Rule 25 of the Central Excise Rules, 2002. (ii) A scheme known as "Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019" was enacted by Finance (No.2) Act, 2019. Section 124 of the Finance Act, 2019 provides that tax dues relatable to a show cause notice pending as on 30.06.2019 for more than Rs. 50 lacs shall be available to a declarant to give him relief of 50% of the tax dues. Section 125(1)(h) of the Act 2019 provides that persons seeking to make declaration with respect to excisable goods set forth in the 4th Schedule to the Central Excise Act, 1944 shall not be eligible to make a declaration under this scheme. Disputed commodity i.e. SKO is mentioned in the 4th Schedule of the Central Excise Act as amended by Taxation Laws (Amendment) Act, 2017 (No.18 of 2017) whereby the 2nd Schedule to the Central Excise Tariff Act was renumbered with certain modifications as 4th Schedule, but inclusion of SKO in the 4th Schedule to the Central Excise Act is not permissible inasmuch as after amendment of entry 84 of List 1 of the 7th Schedule to the Constitution of India, the parliament has power to impose Central Excise duty only in respect of 5 items, namely, petroleum crude, high speed diesel oil, motor spirit, natural gas aviation turbine fuel and tobacco and tobacco products which does not include SKO. Therefore, the SKO could not have been included in the 4th Schedule. (iii) The application of the petitioner for taking benefit of the aforesaid scheme has been arbitrarily rejected by impugned communication dated 26.02.2020 on the ground that as per Section 125 (1)(h) of the Finance (No.2) Act, 2019 the product i.e. SKO is set forth in the 4th Schedule of Central Excise Tariff Act, 1944 and, therefore, the application to avail benefits of SVLDRS scheme can not be accepted. (iv) Since SKO is not an excisable goods. Therefore, the petitioner could not have been denied the benefit of SVLDRS scheme by the impugned order/communication dated 26.02.2020. (v) In view of the amended entry 84 of list 1 of the 7th Schedule of the Constitution (one hundred and 1st Amendment) Act, 2016, the 4th Schedule to the Central Excise Tariff Act mentioning therein SKO by the Taxation Laws (Amendment) Act, 2017 (No.18 of 2017) is violative of Section 174 of the Central GST Act which has repealed the Central Excise Act except with respect to the matters provided in the amended entry 84 of list 1 of the 7th Schedule. (vi) Since GST is being charged as mentioned in the 4th Schedule (List of goods at 5% rate) at Serial No.164 on "Kerosene PDS", therefore, the existence of SKO (Super Kerosene Oil) in the 4th Schedule to the Central Excise Act showing rate of duty as nil, can not be continued under the Central Excise Tariff Act. Submission on behalf of the respondents 5. Sri Gaurav Mahajan, learned counsel for the respondent nos. 2 & 3 supports the action of the respondents and the impugned order. He further submits that proper procedure was followed before rejecting the application of the petitioner. 6. Sri Gaurav Mahajan, further submits that SKO continues to be an excisable goods falling under the 4th Schedule of the Central Excise Act. Facts 7. Briefly stated facts of the present case are that the petitioner is engaged in the manufacturing and clearance of various petroleum products falling under Chapter 27 of the Central Excise Tariff Act, 1985 (hereinafter referred to as "the Tariff Act"). During the period 01.11.2002 to 31.03.2005 petitioner paid Central Excise duty on the basis of Central Excise invoice in which value was shown much lower than actual price recovered by the petitioner from the buyers as per the commercial invoices in respect of Superior Kerosene Oil (SKO). Consequently, a show cause notice dated 17.10.2007 under Section 11 of the Central Excise Act, 1944 (hereinafter referred to as "the Act 1944") was issued to the petitioner by the Commissioner of Central Excise, Lucknow, requiring them to show cause as to why Central Excise duty amounting to Rs.2,96,99,001/- short paid for the period from 01.11.2002 to 31.03.2005 may not be recovered under Section 11-A and penalty under Section 11-AC of the Act, 1944 read with Rule 25 of the Central Excise Rules, 2002, be not imposed. The petitioner submitted reply dated 17.12.2007 in which the petitioner admitted lower amount shown in the Central Excise invoices and higher amount shown in the commercial invoices but took the stand that subsidy received from the Government will not form part of the value for the purposes of payment of Central Excise Duty. According to the petitioner final order has not yet been passed pursuant to the aforesaid show cause notice. In the mean time, the Finance (No.2) Act, 2019 enacted "Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019" (hereinafter referred to as "Sabka Vishwas Scheme") which was applied to demands under several enactments including Central Excise Act, 1944. Section 124 of the Finance (No.2) Act, 2019, provides for relief available under the Scheme. Section 125 provides that all persons shall be eligible to make a declaration under the Scheme except classes of persons provided in Clauses (a) to (h). Relevant Clause (h) of Section 125 (1) of the Finance (No.2) Act, 2019 i.e. Sabka Vishwas Scheme is reproduced below:- "Section 125 Declaration under Scheme (1) All persons shall be eligible to make a declaration under this Scheme except the following, namely :- (a) .... (b) .... (c) .... (d) .... (e) .... (f) .... (g) .... (h) Persons seeking to make declarations with respect to excisable goods set forth in the Fourth Schedule to the Central Excise Act, 1944 (1 of 1944)." 8. Rule 3 of the "Sabka Vishwas (Legacy Dispute Resolution) Scheme Rules, 2019" (hereinafter referred to as "Sabka Vishwas Rules") provides for declaration under Section 125 electronically. Rule 4 provides for auto acknowledgment. Rule 6 provides for verification of declaration by the designated committee and issue of estimates etc. in Form No. SVLDRS - 3. 9. The designated committee issued the impugned communication dated 26.02.2020 to the petitioner with the remarks as under :- "As per Section 125 (h) of the Finance (No.2) Act, 2019, the product i.e. SKO is set forth in the Fourth Schedule of Central Excise Tariff Act, 1944, therefore, the application to avail benefits of SVLDRS Scheme can not be accepted" . 10. Aggrieved with the aforesaid communication, the petitioner has filed the present writ petition. Discussion and Findings 11. By the constitution (One Hundred and First Amendment) Act 2016, dated 08.09.2016, Article 246-A was inserted providing for Special Provision with respect to goods and service Tax. By Section 17 of same Amendment Act, the 7th Schedule to the Constitution was amended by substituting in list -1 - Union List, the entry 84 as under :- Entry 84 of List - 1 - Union List 12. Duties of excise on the following goods manufactured or produced in India, namely :- "(a) Petroleum Crude; (b) High Speed Diesel; (c) Motor Spirit (commonly known as petrol); (d) natural gas (e) aviation turbine fuel; and (f) tobacco and tobacco products." 13. In K.C. Sachdeva Vs. State 1976 Cri.L.J. 1208(para 4) learned Single Judge has observed that the "Petroleum" includes "Kerosene. In its own case i.e. in Indian Oil Corporation Limited Vs. Commissioner of Central Excise Vadodara (2010) 12 SCC 750 Hon"ble Supreme Court while referring to the Chapter heading 27 of the erstwhile Central Excise Tariff Act 1985 and Notification No.5/98-CE dated 2.6.1998 and Notification No.5/99-CE dated 28.2.1999 noticed the Notification in which it is mentioned that "Kerosene" is any hydro carbon oil (excluding Colza Oil and white spirit) which has a smoke point of 18 mm or more. 14. It appears that on account of the one hundred and First constitution Amendment Act, 2016, the Goods and Service Tax laws were enacted and Central Excise Act, 1944 was also amended by Act 18 of 2017. By Section 174 of the Central Goods and Service Tax Act, 2017 assented by the President on 12.04.2017 and enforced w.e.f. 01.07.2017 certain enactments including the Central Excise Act, 1944 (except as respects goods included in entry 84 of the Union List of the 7th Schedule to the Constitution) and the Central Excise Tariff Act, 1985, have been repealed with a saving clause in sub - Section (2). 15. By Act 18 of 2017 (w.e.f. 01.07.2017) several amendments were made in the Central Excise Act, 1944. The relevant amended provisions for the purposes of the present case are Section 2(d), Section 2(f) (ii) and the Fourth Schedule to the Act. The Fourth Schedule has been substituted with reference to the provisions of Section 2(d) and Section 2(f)(ii) of the Act, 1944. Section 2(d) and 2(f)(ii) are reproduced below:- "Section 2(d) "Excisable goods" means "goods" specified in the Fourth Schedule as being subject to a duty of excise and includes salt. Explanation.- For the purposes of this clause, "goods" includes any article, material or substance which is capable of being bought and sold for a consideration and such goods shall be deemed to be marketable" Section 2(f)(ii) "Manufacture" includes any process - (i) ...... (ii) .....which is specified in relation to any goods in the section or Chapter notes of the Fourth Schedule as amounting to manufacture; or (iii)...... and the word "manufacturer" shall be construed accordingly and shall include not only a person who employs hired labour in the production or manufacture of excisable goods, but also any person who engages in their production or manufacture on his own account." 16. Section 3 of the Act, 1944 as amended by Act 18 of 2017 is the charging Section. It provides for leavy and collection of duty of excise to be called Central Value Added Tax (CENVAT) on all excisable goods which are produced or manufactured in India, at the rates set forth in the Fourth Schedule. Sub-Section 3 of Section 3 empowers the Central Government to provide by Notification rates of duty and tariff values with respect to the articles enumerated in the Fourth Schedule. Thus, all the items which are enumerated in the Fourth Schedule are excisable goods in terms of the provisions of Section 2(d), read with Section 2(f) and are liable to duty at the notified rates under the charging Section 3 of the Act. 17. "Manufacture" is the taxable event under the Central Excise Act, 1944 while under Section 9 of the CGST Act/UPGST Act, the event of taxation is the supply of goods or services except the supply of alcoholic liquor for human consumption. Sub-Section 2 of Section 9 of the CGST Act/UPGST Act empowers to levy tax on supply of petroleum crude, high speed diesel oil, motor spirit, natural gas and aviation turbine fuel shall be levied with effect from such date as may be notified by the Government on the recommendations of the Council. Thus, GST may be levied even on such goods which are excisable goods under the Central Excise Act, 1944. Therefore, Superior Kerosene Oil (SKO) shall continue to be an excisable goods under the Central Excise Act, 1944 even if GST on supply of Kerosene Oil (PDS) is levied under the GST laws. 18. Perusal of the Fourth Schedule to the Central Excise Act, 1944 and the provisions of Section 2(d) read with Section 2(f)(ii) leaves no manner of doubt that Superior Kerosene Oil is an excisable goods under the Central Excise Act, 1944, even if no rate of duty has been notified by the Central Government under the Act, 1944. Section 125(1)(h) of the Finance (No.2) Act, 2019 (Sabka Vishwas Scheme) specifically excludes applicability of the "Sabka Vishwas Scheme" with respect to excisable goods set forth in the Fourth Schedule to the Central Excise Act 1944. Since the 'SKO" is an excisable goods set forth in the Fourth Schedule to the Central Excise Act, 1944, therefore, the petitioner was not eligible to make a declaration under the Scheme in view of Section 125 of the Finance (No.2) Act 2019. 19. Perusal of the Fourth Schedule shows that against the goods Superior Kerosene Oil "......" is appearing under the column rate of duty. Clause 4 of the additional notes to the Fourth Schedule provides that "......" against any goods denotes that Central Excise Duty under this Schedule is not leviable on such goods. It means that S.K.O. is an excisable goods as defined in Section 2(d) read with Section 2(f) and Section 3 (Charging Section) of the Central Excise Act, 1944 but presently no duty is leviable in the absence of rate of duty in the Fourth Schedule to the Act, 1944. 20. Thus, if the "additional notes" to the Fourth Schedule is read together with Section 2(d), Section 2(f)(ii), Section 3 of the Act, 1944 and Section 125 (1) (h) of the Finance (No.2) Act, 2019, it is clear that Section 125(1)(h) merely makes a person not eligible for declaration with respect to the excisable goods which are set forth in the Fourth Schedule to the Act, 1944. 21. Undisputedly, Superior Kerosene Oil is mentioned in the Fourth Schedule although no rate of duty has been provided. If rate of duty has not been provided it shall merely mean that no duty is leviable in the absence of rate of duty. It does not mean that such goods are not excisable. All the goods mentioned in Fourth Schedule to the Act, 1944 shall continue to be excisable goods unless the goods is removed from the Schedule by an amendment. Section 174 of the CGST Act has not repealed the Central Excise Act, 1944 as respect to the goods included in entry 84 of the Union List of the Seventh Schedule to the Constitution. The Central Excise Act, 1944 as amended by Act 18 of 2017 has been enacted with respect to the goods included in entry 84 of the Union List of the Seventh Schedule to the Constitution which includes S.K.O. 22. The petitioner has sought the relief No. (c) and (d) to delete SKO from the Fourth Schedule of Central Excise Tariff Act, 1944. There is no such Act. The relief sought is without substance. Apart from this, inclusion of SKO in the Fourth Schedule of the Act, 1944 is not violative of Section 174 of the CGST Act, 2017, for detailed reasons given in the foregoing paragraphs. 23. "Sabka Vishwas Scheme" is a complete code in itself. An earlier scheme known as "Kar Vivad Samadhan" scheme was considered by Hon'ble Supreme Court in the case of Union of India Vs. Nitdip Textile Processors Pvt. Ltd. 2011 (273) ELT 321 (SC) : (2012)1 SCC 226 and it was held that such a scheme is a complete code in itself. 24. Provisions in Chapter V of the Finance (No.2) Act, 2019, whereby "Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019" has been enacted; is an offer by the Government to settle tax arrears locked in litigation at a substantial discount. Section 124 Finance (No.2) Act 2019 provides the slabs of tax arrears and the discount slabs in percentage for payment by an applicant/declarant to settle the dispute. Section 125 provides that all persons shall be eligible to make a declaration under the Scheme except those mentioned in Clauses (a) to (h). Section 126 empowers the designated Committee to verity the correctness of the declaration made by the declarant under Section 125 in the manner as may be prescribed. Section 127 of the Act empowers the designated Committee to issue statement indicating the amount payable by the declarant and in the event the amount estimated by the designated Committee exceeds the amount declared by the declarant then the designated Committee shall afford an opportunity of hearing to the declarant and thereafter issue a statement in electronic form indicating the amount payable by the declarant. Thereafter, the declarant shall pay the amount through internet banking and on payment, the designated committee shall issue a discharge certificate in electronic form within 30 days of the payment and production of proof. Sub-Section 6 and Sub-Section 7 of Section 127 provides for withdrawal or deemed withdrawal of Appeal, Revision, Reference or Writs relating to the matter in question. Section 129 provides for certain immunities to the declarant. Section 130 prohibits payment through input tax credit account, refunds and to take input tax credit of the amount deposited under the Scheme. Section 131 provides for removal of doubts. Section 134 provides for removal of difficulties. Section 132 empowers the Central Government to make Rules by notification to carry out the provisions of the Scheme. Section 133 empowers the Central Board of Indirect Taxes to issue orders, instructions etc. Section 135 provides for protection to the Officers. 25. Thus, perusal of the provisions of the Scheme briefly noted above, shows that the Scheme is a complete Code in itself. In substance, it is a scheme for recovery of duty/indirect tax to unlock the frozen assets and recover the tax arrears at a discounted amount. Thus, "Sabka Vishwas Scheme", although a beneficial scheme for a declarant, is statutory in nature which has been enacted with the object and purpose to minimise the litigation and to realise the arrears of tax by way of settlement at discounted amount in an expeditious manner. In other words the scheme is a step towards the settlement of outstanding disputed tax liability. 26. The discussion made in the foregoing paragraphs leaves no manner of doubt that the petitioner/declarant could avail benefit of the "Sabka Vishwas Scheme" only in accordance with the provisions of the Scheme. Section 125(1)(h) of the Act 2019/"Sabka Vishwas Scheme" has specifically excluded persons seeking to make declarations with respect to excisable goods set forth in the Fourth Schedule to the Central Excise Act, 1944. Undisputedly, S.K.O. is an excisable goods set forth in the Fourth Schedule to the Act, 1944. The petitioner was not eligible to make a declaration under the "Sabka Vishwas Scheme" with respect to "S.K.O.". Therefore, non acceptance of the declaration of the petitioner by the respondents does not suffer from any manifest error of law. 27. For all the reasons aforestated, we do not find any merit in this writ petition. Consequently, the Writ Petition fails and is hereby dismissed. Order Date :- 08.12.2020/vkg


REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 590 OF 2015 JAYANTILAL VERMA …Appellant Versus STATE OF M.P. (Now Chhattisgarh) …Respondent JUDGMENT SANJAY KISHAN KAUL, J. 1. On the fateful day of 24.8.1999, one Sahodara Bai was found dead on a cot in her matrimonial home located in village Uslapur, District Rajanandgaon, M.P. (now Chhattisgarh). A marg intimation was lodged with the police at the behest of her brother, one Kishore Kumar, who Signature Not Verified Digitally signed by alleged that he had returned to village Uslapur to see his sister, where he Anita Malhotra Date: 2020.11.19 18:45:14 IST Reason: was informed by her in-laws that she had died. He related a prior incident from a few days ago alleging that on 19.8.1999, the deceased had returned to her maternal home to village Baiharsari stating that she had been harassed at the hands of her in-laws for the last 6-7 months. The cause for harassment was stated to be that the appellant herein (her husband) had a brother who lived separately and the in-laws would beat and harass her if she attempted to speak to the wife of the brother of the appellant herein. The endeavour of reconciliation took place when Kishore Kumar along with another brother, Lochan, had brought the deceased back to her matrimonial home. Even at that stage, on being asked whether they wanted her to live with them, the in-laws responded that they will see for a few days and then decide. The deceased thereafter stayed back at her matrimonial home. 2. A postmortem was conducted on the body and FIR No.72/99 came to be registered at P.S. Bodla, District Kawargha on 29.8.1999 arraying the appellant herein, his father, one Lalchand and mother, one Ahiman Bai as accused for offences punishable under Sections 302 read with Section 34 of the Indian Penal Code, 1860 (hereinafter referred to as the ‘IPC’). The FIR is stated to have been registered at the behest of one K.P.S. Paikara, the SHO of P.S. Bodla, who relayed the abovementioned information from the marg intimation and also elaborated on the relationship of the deceased and the appellant herein along with the findings of the postmortem report. The marriage between the appellant herein and the deceased had taken place about 8 years prior to the incident and there was a son born, who was only a few months old. The appellant herein, along with the deceased was staying with his parents. The post mortem report stated that the cause of death was asphyxia due to strangulation, and the nature of death was possibly homicidal. On completion of investigation, Chargesheet No. 64/99 was filed and charges were framed by the Sessions Court in Sessions Trial No.165/1999, arraying the appellant herein and his parents as accused. The version given by the accused in their statements under Section 313 Code of Criminal Procedure, 1973 (hereinafter referred to as the ‘Cr.P.C.’) was that on the morning of the incident all the three accused had gone to the fields, while only the deceased remained at home. Lalchand stated that after taking a bath in the pond, when he returned, he discovered the deceased lying dead in her cot. Thereafter he called the appellant herein and his wife, Ahiman Bai, who were still in the fields. No evidence was led in this regard. 3. The prosecution led evidence of 9 witnesses to establish their case. Five of these witnesses turned hostile – PW-2 (Lochan), brother of the deceased, PW-3 (Mukund), PW-4 (Jagdev), PW-5 (Pitambar Verma) and PW-6 (Ghasiya). The case of the prosecution was, thus, based on the testimonies of the remaining witnesses, i.e., PW-1, Kishore Kumar, the brother of the deceased and PW-7, Rajendra Chauhan, who prepared the site plan, PW-8, K.P.S. Paikara, Investigating Officer and PW-9, Dr. M.S. Bachkar, who conducted the postmortem. Thus, effectively the case was based on the testimony of PW-1, apart from the testimony of the doctor who conducted the postmortem. 4. The Sessions Court held all the three accused persons guilty of offences punishable under Section 302 of the IPC, in terms of the judgment dated 21.7.2000. 5. The finding of the Sessions Court was based on the cause of death being asphyxia due to strangulation. The testimony of the doctor, PW-9, was relied upon to come to the conclusion that the death was homicidal as it was a result of strangulation. The possibility of any other manner of death was explored by the court, i.e., thieves killing the deceased in order to snatch a chain from her neck. This was ruled out as the incident took place in the house, which in turn was surrounded by other houses on three sides and no commotion was heard. Further, no crime of theft had been reported in the recent past. Next, the possibility of death caused by a snakebite was explored. This was owing to the testimony of PW-1, who had stated, that upon finding his sister dead and enquiring as to what had happened, Lalchand, father of appellant herein had stated that she had died of a snakebite. Court noted that the postmortem did not indicate any symptom of a snake bite as there was no mark or any poisoning detected in the body. The suicide theory was also ruled out as there were scratch marks found on her neck. The conclusion was, thus, based on circumstantial evidence to convict the accused. All the three accused preferred an appeal before the High Court, being Criminal Appeal No.1930/2000. In the course of the pendency of the appeal, Lalchand, the father-in-law of the deceased passed away. The High Court concluded that there was no legally admissible evidence to convict the mother-in-law of the deceased, and hence she was acquitted. However, the conviction of the appellant herein was upheld by the High Court. 6. The appellant herein filed the present appeal in which leave was granted on 30.3.2015. 7. It would be appropriate to note that there was some improvement in the statement of PW-1 to the extent that he had never mentioned Lalchand’s explanation of the death of the deceased by snake bite in the earlier statement. While this was noted by the Trial Court, all other aspects were found to be consistent with his earlier statements. The testimony of PW-1 as a whole was found to be natural. It was also noted that there was an absence of any prior animosity between PW-1 and the family of the appellant herein. PW-1, incidentally, was the stepbrother of the deceased, while PW-2, who turned hostile was her real brother. The cause of witnesses turning hostile, as per the Trial Court, was that PW-2 was influenced on account of subsisting family relationship, as the daughter of Lalchand (sister of the appellant herein) was married to the brother of PW-2. 8. The circumstantial evidence was examined closely as that could be the only basis of conviction, and it was found that there was a complete chain to prove the guilt of the accused. The visit of the deceased to her maternal home, her statement regarding the ill-treatment by her in-laws to her brother, PW-1, her being taken to the matrimonial home by PW-1 along with another brother, Lochan, the discussion between PW-1 and Lalchand and finally the cause of death being homicidal were all circumstances examined to establish guilt of the accused. The Trial Court held that after the murder, Lalchand sent his wife and the appellant herein to the fields, while he himself went to the pond to bathe and when he returned to his house, he raised a hue and cry, pretending to be shocked by the sudden death of the deceased. There was a possibility of death being caused by strangulation by an article made of a chain-like material but the same had likely been destroyed. The Trial Court did castigate the manner of prosecution. 9. The High Court in the given situation, apart from relying on the testimony of PW-1, turned its attention to the postmortem report. In this context, it was noted that there was blood oozing from both nostrils and mouth of the deceased, there was swelling over the right cheek, marks of ecchymosis at epiglottis region and back of the neck, bruise present at left axillary of cheek and there was depression mark of a mala on the left side of the neck. It went on to state that since the incident had taken place inside the privacy of the house, the onus was on the persons residing in the house, to give an explanation. In such situations, it was noted that it is difficult for the prosecution to lead any direct evidence to establish the guilt of the accused. In this regard, the High Court referred to Section 106 of the Indian Evidence Act, 1872 (hereinafter referred to as the ‘Evidence Act’), which reads as under: “106. Burden of proving fact especially within knowledge.— When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.” It, thus, opined that in such cases, while the initial burden to establish the case would be upon the prosecution, it would be of a relatively light character. There would be a corresponding a burden on the inmates of the house to give cogent explanation as to how the crime was committed. They could not get away by keeping quiet and offering no explanation. 10. In the aforesaid contours of the factual situation we have examined the submissions of the learned counsels for the parties. 11. The submission of the learned counsel for the appellant herein was that the circumstantial evidence was not of such a nature that it could be said to be conclusive, and the chain of evidence was not complete to pronounce the appellant herein guilty. The previous allegations of cruelty had not been proved as there was no prior complaint of harassment lodged by the deceased or her relatives and that the testimony of PW-1 is further discredited, as he is the stepbrother and not the real brother of the deceased. It was further argued that the statements of the witnesses were not recorded prior to 29.8.1999 i.e., for five days from the date of incident, and even the site plan prepared by PW-7 was not proved. There was stated to be no intention or motive attributable to the appellant herein to kill the deceased and the prosecution could not absolve itself of the burden to prove the case beyond reasonable doubt. 12. The testimony of PW-9, Dr. Bachkar was assailed as there was no formation of a firm opinion regarding the nature of death as it was mentioned that it “may” have been homicidal. There was stated to be a mark on the left side of the neck and but no such mark existed around the neck. He had stated that the mark could have been caused by pressing the necklace on the neck, but asphyxia was not possible due to the same. No recovery of necklace had taken place from the appellant herein and the weapon of crime was never recovered. Lastly, it was contended that on the same evidence, the mother of the appellant herein had been acquitted. 13. The appellant herein is stated to have served 16 years and 9 months of his sentence but some dispute was raised about the actual time he had spent in jail by learned counsel for the respondent State, though it was conceded that cases for release were considered after 14 years of serving the actual sentence. 14. Learned counsel for the respondent State relied upon the absence of any explanation by the accused regarding the cause of death, even though the death had occurred in the privacy of the matrimonial home. The appellant herein and his family are stated to be the only residents, where the body of the deceased was found and that itself cast a burden on them within the meaning of Section 106 of the Evidence Act. 15. In order to support the aforesaid proposition, reliance was placed on the following judgments: a. Amarsingh Munnasingh Suryawanshi v. State of Maharashtra1: In this case, the death had occurred in the matrimonial home but the conviction was supported by a dying declaration. b. Raj Kumar Prasad Tamarkar v. State of Bihar & Anr.2: Here, the weapon of offence, a gun, was recovered from the room of the accused and the dead body was found on the terrace attached to the private room of the accused. c. Trimukh Maroti Kirkan v. State of Maharashtra 3: In this case, the body of the deceased was found in the matrimonial home and the cause of death was strangulation, though the defence pleaded it to be a case of a snakebite. 16. The aforesaid, would thus, show that the third case best fits the factual scenario in the present case. 17. Learned counsel for the State emphasised that the other witnesses turning hostile cannot be a ground itself to acquit the accused and the testimony of PW-1 was consistent and sufficient to convict the appellant herein. In this behalf, a reference was made to Section 134 of the Evidence Act, which reads as under: (2007) 15 SCC 455 (2007) 10 SCC 433 (2006) 10 SCC 681 “134. Number of witnesses. – No particular number of witnesses shall in any case be required for the proof of any fact.” 18. It was, thus, contended that mere presence or absence of a large number of witnesses cannot be the basis of conviction. It is the quality of evidence and not the number of witnesses, which is relevant. In this behalf, a reference was made to the following cases: a. Yanob Sheikh Alias Gagu v. State of West Bengal4, where it was observed as under: “20. We must notice at this stage that it is not always the quantity but the quality of the prosecution evidence that weighs with the Court in determining the guilt of the accused or otherwise. The prosecution is under the responsibility of bringing its case beyond reasonable doubt and cannot escape that responsibility. In order to prove its case beyond reasonable doubt, the evidence produced by the prosecution has to be qualitative and may not be quantitative in nature. In the case of Namdeo v. State of Maharashtra [(2007) 14 SCC 150], the Court held as under: “28. From the aforesaid discussion, it is clear that Indian legal system does not insist on plurality of witnesses. Neither the legislature (Section 134 of the Evidence Act, 1872) nor the judiciary mandates that there must be particular number of witnesses to record an order of conviction against the accused. Our legal system has always laid emphasis on value, weight and quality of evidence rather than on quantity, multiplicity or plurality of witnesses. It is, therefore, open to a competent court to fully and completely rely on a solitary witness and record conviction. Conversely, it may acquit the accused in (2013) 6 SCC 428 spite of testimony of several witnesses if it is not satisfied about the quality of evidence. The bald contention that no conviction can be recorded in case of a solitary eyewitness, therefore, has no force and must be negatived.” b. Gulam Sarbar v. State of Bihar (Now Jharkhand) 5 wherein the Court relied on the same aforementioned principle. 19. On consideration of the evidence led by the prosecution and considering the concurrent findings by the two courts qua the appellant herein we are unable to find any reason to interfere with the judgment of the courts below. 20. It is no doubt true that a large number of witnesses turned hostile and the Trial Court was also not happy with the manner of prosecution conducted this case. But that is not an unusual event in the long drawn out trials in our country and in the absence of any witness protection regime of substance, one has to examine whatever is the evidence which is capable of being considered, and then come to a finding whether it would suffice to convict the accused. 21. The rationale adopted for coming to the conclusion behind the reason for the real brother of the deceased turning hostile while step brother stood his ground is also obvious and correctly appreciated, i.e., to (2014) 3 SCC 401 preserve the close family ties which continued to exist by marriage in the instant case, in view of the siblings of the deceased and appellant herein being married. In the Indian context, there exists a continued relationship between two families wherein the daughter-in-law comes from another house. 22. We are conscious that the case of the prosecution rests only on the testimony of PW-1 and the medical evidence. The statement of PW-1 was consistent and cogent except to the extent that in the earlier statement he had not mentioned the factum of the death being attributed to snakebite. However, that itself would not nullify the remaining part of his testimony. In fact, the said witness did not back out from the statement, but could not state the reason why the police did not record it in the FIR though it was mentioned. 23. The doctor opined the cause of death to be asphyxia due to strangulation. Thereafter, he has stated that nature may be homicidal. This was so stated because asphyxia being the cause of death, the doctor himself could not have conclusively said whether it was homicidal or suicidal. It was also voluntarily opined, that there had to be a minimum of five minutes of forceful pulling to cause the death. 24. In our view, the most important aspect is where the death was caused and the body found. It was in the precincts of the house of the appellant herein where there were only family members staying. The High Court also found that the location of the house and the surrounding buildings was such that there was no possibility of somebody from outside coming and strangulating the deceased and that too without any commotion being caused or any valuable/jewellery missing. 25. We are confronted with a factual situation where the appellant herein, as a husband is alleged to have caused the death of his wife by strangulation. The fact that the family members were in the home some time before is also quite obvious. No explanation has been given as to how the wife could have received the injuries. This is a strong circumstance indicating that he is responsible for commission of the crime.6 The appellant herein was under an obligation to give a plausible explanation regarding the cause of the death in the statement recorded under Section 313 of the Cr.P.C. and mere denial could not be the answer in such a situation. 26. We, thus, find no reason to interfere with the impugned judgment. Trimukh Maroti Kirkan v. State of Maharashtra (supra). The appeal is accordingly dismissed leaving the parties to bear their own costs. 27. We, however, direct the respondent State to examine whether the appellant herein has completed 14 years of actual sentence or not and if it is so, his case should be examined within a maximum period of two months for release in accordance with norms. If not, the exercise be undertaken within the same time on completion of 14 years of actual sentence. ...……………………………J. [Sanjay Kishan Kaul] ...……………………………J. [Hrishikesh Roy] New Delhi. November 19, 2020.