judgement:
ivil Appeal No. 3378 of 1983 From the Judgment and Order dated 21.3.1983 of the Delhi High Court in C.R. No. 1047 of 1981.
Dr. Shanker Ghosh and H.K. Puri for the Appellant.
S.N. Kacker, Arvind Minocha and Mrs. Veena Minocha for the Respondents.
SABYASACHI MUKHARJI, J This appeal by special leave arises out of the order of the High Court of Delhi dated 2 1st March, 1983.
On or about 3rd January, 1977, the landlady, the re spondent herein, had filed a petition for eviction of the appellant, the tenant, from the first floor of the premises situated at C 62, Maharani Bagh, New Delhi along with a garage on the ground floor with a servant quarter above the garage as per the plan annexed with the petition ' (hereinaf ter referred to as the disputed flat).
The ground of evic tion was the bona fide personal necessity of the landlady.
The premises had been let out on a monthly rent of Rs.950 and Rs.50 per month as facility for booster pump totalling to Rs.1,000 per month, exclusive of water and electricity charges.
The respondent claimed to be the owner of the premises and stated that she required the premises for her residence and.
for the residence of the members of her family and further she was not in possession of any other suitable residential accommodation.
She was at the time of filing of the petition, living, according to her, as a guest of her niece in her house in D 36, Nizammuddin East, New Delhi.
She 278 had asserted that she could not continue residing there permanently or indefinitely and that the accommodation with her niece was limited being only two bed rooms with a common bath room and that her niece wanted her own mother to stay with her and would like the landlady to shift as soon as respondent could.
It was further averred that the niece of the respondent landlady was a working woman and for meeting her clients she needed accommodation as she was at all relevant time working as an executive in an advertising agency.
It was also stated that the landlady was a social worker and had her own sphere of activities.
There were two flats in the building in question.
The landlady, according to her, needed one floor to let out one of the floors of that building to have income to support herself which, according to her, was her only source of livelihood and the ground floor of the premises at the time of the filing of the petition was in occupation of New Zealand Embassy at Rs.2,500 per month as rent.
It was her case that she wanted to keep the ground floor let out to a tenant to draw a decent amount of rent and the only premises left for her residence was therefore the premises the disputed flat.
The learned single judge of the Delhi High Court in the order under appeal has stated that on 14th March, 1974, the landlady had earlier also filed on eviction application against M/s Jaaj Timber Products (P) Ltd. on the ground that the said company was her tenant of the first floor of the suit premises and it was required for her residence.
In the earlier petition, a written statement was filed by the tenant/ appellant who was the Managing Director of that company.
The landlady had also on 17th April, 1976 filed a suit for recovery of Rs.35,000 as arrears of rent for the period 1st May, 1973 to 31st March, 1976.
But in both the earlier eviction petition and the suit for the recovery of rent, the aforesaid company took up the position that the company was not a tenant but the appellant alone was the tenant and this contention of the appellant was upheld by judgment of the learned Additional District Juge, Delhi dated 1st November, 1976 and it was found that the appellant alone was a tenant in his individual capacity.
This fact was relevant only from one point of view, namely, the argument that the appellant was a troublesome tenant.
This is noted for this purpose because a contention was advanced by Shri Kacker, learned counsel, appearing for the respondent here in, in support of his contention that in judging the bona fide and reasonableness of the requirement of the landlord, the conduct of the tenant is a relevant factor to be borne in mind.
To continue with a narration of events, however, it has to be noted that the earlier eviction petition was dismissed though a decree.
for Rs.34,050 for rent with proportionate costs was passed against the 279 appellant herein.
But the suit against the company was dismissed.
It would be necessary to complete the narration of events by stating that in the subsequent affidavit dated 27th October, 1986 filed by the appellant herein before us with our permission during the hearing of this appeal, it was brought to our notice that the appeal was filed in January, 1977 when the ground floor of the premises had been let out to the New Zealand Embassy.
New Zealand Embassy vacated the premises in July, 1977 and the same was relet by the landlady, the respondent herein to one Shri G.N. Dalmia on 27th July, 1977 at a higher rent Shri Dalmia in his turn had again vacated the premises in July, 1979 and the prem ises was let out again by the landlady at a still higher rent M/s Indian Express Newspaper Private Limited.
It was stated that M/s Indian Express Newspapers Private Limited had vacated and thereafter the 'same was let out to one Shri Pradeep Kumar Ganeriwal at a still higher rent in April, 1985.
There were allegations made saying that initially it was occupied by one Shri Mulgaokar and then Shri Nihal Singh and then Shri Ganeriwal.
These were controverted by an affidavit filed by the respondent landlady on 30th October, 1986.
According to her, Indian Express was the lessee but the others were the officers or the executives of the Indian Express and as such were allowed to occupy the premises in question.
But to revert back to the events leading to the present appeal, it must be noted that the earlier petition for eviction was dated 1st November, 1976 and the present peti tion was filed on 3rd January, 1977 against the tenant appellant.
The appellant had filed a written statement before the Trial Court and admitted the relationship between the parties and had also admitted that the respondent was also the owner of the premises.
It was contended, however, that the premises were not taken for residential purposes and there was no mention of the members of the family of the landlady.
It was denied that the landlady was not in posses sion of suitable alternative accommodation.
It was asserted that she was alone and preferred to live with her niece who was alone and that the petition for eviction was not bona fide and was mala fide and in fact the landlady only wanted to increase the rent for which the tenant appellant was not prepared.
There was some allegation about the alleged at tempt to increase the rent from Rs.1500 to Rs.2500 and it was stated that in the earlier petition which was against M/s Jaaj Timber Products Pvt. Ltd., the landlady had stated that she did not have any residential accommodation and was putting up as a temporary guest at a premises at Pandara Road, New Delhi and it was not made clear as to why she did not occupy the 280 portion which was in occupation previously of the New Zea land Embassy after it was vacated and she had stated that she needed one floor to draw income to support herself.
It was pleaded that the landlady was an old and rich lady and had huge bank balances and did not have to depend upon the rentals of the house only.
The respondent 's son was an officer in the Indian Foreign Service and was posted in New Delhi since 1976 and living at the External Affairs Hostel and the landlady would normally like to stay in her old age with her only son.
She could not afford to live alone in such a big house, according to the appellant, and the story of the niece wanting to stay with her old mother, and the need of the niece for her mother 's occupation was not a true story.
In the trial before the Additional Rent Controller, the landlady examined her son and also examined herself and gave details of the various places where she had lived from 1958 till the filing of the present petition.
It is not necessary for our present purpose to refer in detail to the said depositions.
The landlady had, at one point of time, lived at the Indian Council for Child Welfare, Ladies Hostel at 4, Deen Dayal Upadhyaya Marg, New Delhi and the requirement for her flat there upto her assignment with Indian Council for Child Welfare which ended in May, 1970 and in May, 1970, the respondent landlady went to Aligarh and stayed there till March, 1971 as she had no place to live in Delhi.
From March, 1971 to July, 1974, she had lived at Pandata Road as a guest of one Mrs. Gufran and her niece Miss Shahila Haider had also lived there as a guest of Mrs. Gufran.
Mrs. Gufran went away to U.S.A. and the premises was surrendered to Directorate. of Estate.
On 1st July, 1974, the landlady shifted to Nizammuddin, in New Delhi along with Miss Shahila Haider who took the premises on rent.
The landlady respond ent was a graduate from the Leads University and her father was a leading lawyer, who was pioneer in women education in India.
She founded Women 's College in Aligarh University.
The husband of the landlady was the Manager of Reserve Bank of India.
The landlady was connected with various organisa tions such as Y.W.C.A., All India Women 's Conference, Indian Council for Child Welfare and some such other organisations.
One Mrs. Vinita Nagar proved various documents to show association with the Social Welfare Advisory Board and at the relevant time when the deposition was being taken, she was staying at 5 A, Artand Lok, New Delhi with one Suleman Haider who was then Ambassador to Bhutan.
Her son was also examined and she stated that he joined the Indian Foreign Service in July, 1964 and was in Jordan.
It is also stated that during the period January, 1969 to August, 1973, he was in Poland 281 and again on short leave he stayed in External Affairs Hostel when his mother respondent stayed at Pandara Road.
The son was posted at Quater.
It is not necessary to discuss in detail all these.
The landlady respondent herein comes from a fairly well to do family.
She has house income and she has bank balances.
The learned trial court also found that the landlady had one daughter who was married in Delhi and landlady was a social worker and worked for number of institutions and had large social circle.
She comes from a respectable family and a family of high status.
The learned trial judge was of the view that she requires additional accommodation.
It was also found that somehow the habits and taste of her niece Miss Shahila Haider and the landlady differed and she had no other reasonably suitable accommoda tion in Delhi.
It is this second aspect which is the impor tant question in this appeal which will have to be consid ered herein.
The question as to why the landlady did not occupy the ground floor premises which was vacated and relet in 1974 and 1977 at a Higher rent was also considered by the learned trial Court.
It was found that the landlady needed money for her sustenance and maintenance and she had no other source of income and therefore it was held that she would naturally like to let one portion of the house.
The house consisted of two portions, the ground floor and the first floor.
The ground floor portion was not preferred by the landlady as it fetched a higher rent as compare to first floor of the premises.
It was also found that funds were required even for payment of house tax and other charges.
Therefore, the trial court was of the view that the landlady must have some income.
The trial court was also of the view that it was landlady 's choice to occupy the first floor premises and there was no mala fide, her requirement was bona fide.
Being aggrieved by the said decision, the appellant moved in revision before the High Court and the question was examined.
It was pleaded before the High Court on behalf of the appellant that the respondent had only one son and that she should ,live with him.
So far as the requirement being bona fide was concerned, the learned High Court examined the evidence and found that the appraisal and analysis of the evidence by the trial court were correct.
The High Court, therefore, found no reason to differ from the Additional Rent Controller that landlady had no other reasonably suit able accommodation and the landlady was in need of the accommodation in question bona fide and reasonably.
It was further found that there was no mala fide on her part in letting out the premises in question when it fell vacant as mentioned hereinbefore.
It was further held that there was no ques 282 tion of financial difficulty being an afterthought as the previous petition was dismissed on the ground that there was no relationship between the landlord and the tenant between the parties in that case Therefore, under section 14(1)(e) of Delhi Rent Control Act, 1958 (hereinafter called the 'Act '), eviction was upheld.
In the premises the revision was dismissed and the decree for eviction was upheld.
The appellant challenges this decision.
The appellant contends that on the undisputed facts of this case under section 14(1)(e) of the Act, the landlady was not entitled to eviction.
Section 14 of the said Act gives protection to the tenant against eviction and stipulates that no order or decree for the recovery of possession of any premises shall be made by any court in favour of the landlord against a tenant.
Proviso to sub section (1) of the section 14 pro vides that the Controller may on an application made to him in the prescribed manner make an order for recovery of possession of the premises on one or more of the various grounds mentioned in different sub clauses of section 14(1) and sub section (e) is to the following effect: "(e) that the premises let for residential purposes are required bona fide by the land lord for occupation as a residence for himself or for any member of his family dependent on him, if he is the owner thereof, or for any person for whose benefit the premises are held and that the landlord or such person has no other reasonably suitable residential accommo dation:" The contention of the appellant is that the landlady in this case had other reasonably suitable accommodation and by her own conduct had disentitled herself of the user of the same, Therefore, the landlady cannot contend that she had no other reasonably suitable accommodation.
In support of this contention reliance was placed by the appellant on a deci sion of this Court in Pasupuleti Venkateswarlu vs The Motor & General Traders, ; The case was under Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960 and was dealing with the provisions of section 10(3)(iii)(a) & (b) of that Act.
The Court held that the court was entitled to take subsequent facts into considera tion in a case of this nature.
At pages 959 60 of the re port, this Court set out the findings of the learned trial court where it was observed: "If the fact of the landlord having come into possession during the pendency of the proceed ings of Shop No. 2 is to 283 be taken into account, as indeed it must be, then clearly the petition is no longer main tainable under Section 10(3)(iii) of the Act, as the requisite condition for the invoking of that provision has ceased to exist viz., that the landlord was not occupying a non residen tial building in the town. 'Building ', of course means a portion of a building.
As the prerequisite for the entitlement of the peti tioner to institute and continue a petition has ceased to exist, it must follow that ABA No.5/1967 is no longer maintainable and must be dismissed." This Court upheld that finding.
This Court affirmed the proposition that for making the right or remedy claimed by the party just and meaningful as also legal and factual in accord with the current realities, the court could and in many cases must take cautious cognizance of events and developments subsequent to the institution of the proceed ings, provided rules of fairness to both the sides were scrupulously obeyed.
In the instant case there is no ques tion of violation of any principle of rules of natural justice.
If cognizance are taken of events and developments, subsequent to the initiation of proceedings, it must.
be held that the landlady had the opportunity of occupying a floor in the house which fell vacant not once but twice subsequent to arising of her need for reasonable accommoda tion.
She chose not to occupy the said premises.
The landla dy asserts that she must have means to live before she can utilise her living space to live.
The landlady asserts that in order to have her means to live, she must let one floor on rent.
According to her, that is the only source of her income.
But it is not clear from the learned Rent Control ler 's findings or the High Court adjudication whether the huge bank balances alleged to belong to the landlady yield any income or not or is insufficient income for her to live.
Therefore, for the purpose of this appeal, we must proceed on the assumption that the landlady needed money to live and the income from her house letting was a source of her in come.
But the question is, is it a sufficient ground which will bring her out from the second limb of the conditions imposed by section 14(1)(e) of the Act? There is no dispute that subsequent events can be taken into consideration.
There is no dispute that administration of justice demands that any changes either in fact or in law must be taken cognizance of by the court but that must be done in a cau tious manner of relevant facts.
Hasmat Rai & Anr.
vs Raghunath Prasad, [1981] 3 S.C.R. 605, which was a case under Madhya Pradesh Accommodation Control Act.
1961 is relevant.
There the question was wheth er the applicant after 284 filing of two eviction suits and acquiring possession of a major portion of the suit premises through an eviction order passed in one of them amounts to the landlord "has a reason ably suitable non residential accommodation of his own in his occupation in the city or town concerned" within the meaning of section 12(1)(f) of the M.P. Act of 1961.
It was reiterated that when an action was brought by the landlord under Rent Restriction Act for eviction on the ground of personal requirement, his need must not only be shown to exist at the date of the suit but must exist on the date of the appellate decree or on the date when a higher court deals with the matter.
Even at the last stage the tenant was entitled to show that the need or requirement no more exist.
Otherwise the landlord would derive an unfair advantage.
It was further held that in order to obtain possession under section 12(1)(h) of the Madhya Pradesh Act, the landlord had to establish his bona fide requirement of the accommodation in possession of the tenant.
At page 624, of the report Pathak, J. reiterated that the High Court was bound to take the fact into consideration because, it is well settled that in a proceeding for the ejectment of a tenant on the ground of personal requirement under a statute controlling the eviction of tenants, unless the statute prescribes to the contrary the requirement must continue to exist on the date when the proceeding was finally disposed of either in appeal or revision by the relevant authority.
Therefore, subsequent events can be taken cognizance of if they are relevant and material.
In the instant case the fact that the other flat in the premises fell vacant which the landlady could have occupied but she did not and let it out to fetch higher income was a relevant factor.
It can be taken cognizance of.
Variety Emporium vs V.R.M. Mohd. Ibrahim Naina 's, ; case was with regard to Rent Control and Eviction and dealt with the question of bona fide personal require ment, wherein in paragraphs 15 and 16, the Court referred to the decision of Hasmat Rai vs Raghunath Prasad, (supra) and observed that the subsequent events could be taken account of and the distinction between 'desire ' and 'need ' must be kept in view.
This view was also applied by the Delhi High Court in respect of the identical Act in question, in the decision in Firm Ram Sewak Hari Ram vs Sain Datta Mal, AIR 1967 Delhi 113 as well as in Abdul Harnid and another vs Nur Mohammad, AIR 1976 Delhi 328.
The position therefore that emerges in that there must be bona fide need of the landlady for occupation of a resi dence for herself and further it must be held that the land lady has no other reasonably suitable accommodation.
285 Shri Shankar Ghosh, learned counsel appearing for the appellant, contended before us that in this case the landla dy had reasonably suitable accommodation thrice or if not thrice at least twice when tenant left during the pendency of the proceeding for eviction but she chose in view of the facts mentioned hereinbefore not to go into that possession but let out the same to fetch higher income.
Therefore, taking the facts into question which indubitably could be taken into account, it cannot be said that the landlady had no other reasonably suitable accommodation, having regard to the size of her family and her need.
Therefore the second limb was not satisfied.
There is no dispute and Shri S.N. Kacker for the respondent did not dispute that subsequent events if they are relevant could be taken account of cau tiously.
But he contended as mentioned hereinbefore that the landlady the owner of a house, has to live.
He further urged that there was a distinction between self induced disenti tlement and disentitlement forced by surrounding circum stances.
He submitted in this case the landlady had to live and for this by the surrounding circumstances.
she was forced to let out the floor which fell vacant.
It is irrele vant whether it fell vacant once, twice or thrice but it indisputably fell vacant during the proceedings and she chose not to occupy the same.
Better exploitation of the house or the premises in possession of the landlady or landlord was not impermissible.
He drew our attention to Article 300A of the Constitution and urged that the Consti tution provided that no person should be deprived of the property save by authority of law.
Therefore, according to Shri Kacker, the landlady had to live and had a right of property in the rental income.
The logic of the argument of Shri Kacker is attractive, but the legality of the said submission is unsustainable Rent restriction laws are both beneficial and restrictive, beneficial for those who want protection from eviction and rack renting but restrictive so far as the landlord 's right or claim for eviction is con cerned.
Rent restriction laws would provide a habitat for the landlord or landlady if need be, but not to seek com forts other than habital that right the landlord must seek elsewhere.
Our attention was drawn to the decision in the case of Bishambhar Dayal Chandra Mohan and Others etc.
vs State of Uttar Pradesh and Others etc.
; , and our attention was drawn to the observations at pages 66 and 67 of the said case in aid of the submission that right to property is still a constitutional right and therefore in exercise of that right if a landlord or an owner of a house lets out a premises in question there was nothing wrong.
Shri Kacker submitted that the second limb of section 14(1)(e) of the Act should be read in such a way that it was in consonance with Article 14 and Article 286 21 of the Constitution.
Otherwise it would be void as being unconstitutional.
As a general proposition of law this is acceptable.
We are unable to accept the submissions of Shri Kacker in the way he urged us to read the second limb of section 14(1)(e) of the Act.
The Act in question is the authority of law.
There is no denial of equality nor any arbitrariness in the second limb of section 14(1)(e) of the Act read in the manner contended for by the appellant.
Article 21 is not violated so far as the landlord is concerned.
The rent restricting acts are beneficial legislations for the protection of the weaker party in the bargains of letting very often.
These must be so read that these balance harmoniously the rights of the landlords and the obligations of the tenants.
The Rent Restriction Acts deal with the problem of rack renting and shortage of accommodation.
It is in consonance with the recognition of the right of both the landlord and the ten ant 'that a harmony is sought to be struck whereby the bona fide requirements of the landlords and the tenants in the expanding explosion of need and population and shortage of accommodation are sought to be harmonised and the conditions imposed to evict a tenant are that the landlord must have bona fide need.
That is satisfied in this case.
That posi tion is not disputed.
The second condition is that landlord should not have in his or her possession any other reasona bly suitable accommodation.
This does not violate either Article 14 or Article 21 of the Constitution.
Shri Kacker submitted that this section should to read literally and we should ask ourselves the question today whether can it be said that the landlady had reasonably suitable other accommodation.
We are unable to read it in that sense.
If the landlady or the landlord could have reasonable accommodation after his or her need arose and she by her own conduct disentitled herself to that property by letting it out for higher income, she would be disentitled to evict her tenant on ground of her need.
The philosophy and principle of rent restriction law have nothing to do with the private exploitation of property by the owners of the property in derogation of the tenant 's need of protec tion from eviction in a society of shortage of accommoda tion.
In the premises we are of the opinion that the High Court was wrong in the view and the approach it took and in view of the undisputed facts that the landlady had in her choice to go into the premises in question but she did not, she has become disentitled to the right of eviction.
The fact that the tenant was a troublesome tenant inasmuch 287 as that he questioned the liability to the landlord is irrelevant.
In the premises the appeal is allowed.
The order and judgment of the High Court are set aside.
In the facts of this case the parties will pay and bear their own costs.
M.L.A. Appeal al lowed.

dataset_name: IN-Abs

summary/full:
The respondent landlady was the owner of a premises consisting of ground floor and first floor.
Both the floors had been let out on rent and she was living with one of her relatives.
She filed a petition for eviction of the appel lant tenant from the first floor of the premises on the ground of bonafide personal necessity.
She had stated in the petition that she needed one floor for her residence and the other one i.e. the ground floor to let out to have income to support herself because that was her only source of liveli hood.
During the pendency of the petition, the ground floor in the house fell vacant twice and she let it out on higher rent.
The Trial Court allowed the eviction petition section 14(1)(e) of Delhi Rent Control Act, 1958 on the ground (i) that the landlady must have some income; and (ii) that it was landlady 's choice to occupy the first floor premises and there was no mala fide, her requirement was bona fide.
The High Court upheld the aforesaid order of eviction.
In appeal to the Supreme Court, it was contended on behalf of the appellant tenant that the second limb of the defini tion contained in s.14(1)(e) of the Rent Act was not satis fied since the respondent landlady had other reasonably suitable accommodation and by her own conduct, she had disentitled herself of the user of the same inasmuch as the accommodation of ground floor fell vacant twice when tenant left during the pendency of the proceeding for eviction but she chose not to go into that possession but let out the same to fetch higher income.
Therefore, taking these facts into question which indubitably could he taking 276 into account, it cannot be said that the landlady had 'no other reasonably suitable accommodation '.
Allowing the appeal, HELD: (1) The order and judgment of the High Court are set aside.
In view of the undisputed facts that the landlady had in her choice to go into the premises in question but she did not, she had become disentitled to the right of eviction.
[287A, 286H] (2)(i) The Rent restriction laws are both beneficial and restrictive, beneficial for those who want protection from eviction and rack renting, but restrictive so far as the landlord 's right or claim for eviction is concerned.
Rent restriction laws would provide a habitat for the landlord or landlady if need be, but not to seek comforts other than habitat that right the landlord must seek elsewhere.
The philosophy and principle of rent restriction law have noth ing to do with the private exploitation of property by the owners of the property in derogation of the tenant 's need of protection from eviction in a society of shortage of accom modation.
[285F, 286G] (2)(ii) Administration of justice demands that any changes either in fact or in law must be taken cognizance of by the Court but that must be done in a cautious manner of relevant facts.
Therefore subsequent events can be taken cognizance of if they are relevant and material.
[283G] Pasupuleti Venkateswarlu vs The Motor & General Traders, ; , Hasmat Rai & Anr.
vs Raghunath Prasad, ; and Variety Emporium vs V.R.M. Mohd. Ibra him Naina; , , relied upon.
Firm Ram Sewa Hari Ram vs Sain Datt Mal, AIR 1967 Delhi 113 and Abdul Hamid and another vs Nur Mohammad, AIR 1976 Delhi 328, approved.
Bishambhar Dayal Chandra Mohan and Others etc.
vs State of Uttar Pradesh and Others etc.
; , , referred to.
(3) In a proceeding for the ejectment of a tenant on the ground of personal requirement under a statute controlling the eviction of tenants, unless the statute prescribes to the contrary the requirement must continue to exist on the date when the proceedings was finally disposed of either in appeal or revision by the relevant authority.[284D] 277 In the instant case, if cognizance is taken of events and developments subsequent to the initiation of proceed ings, it must be held that the landlady had the opportunity of occupying a floor in the house which fell vacant not once but twice subsequent to arising of her need for reasonable accommodation She chose not to occupy the said premises.
Therefore.
it cannot be said that the landlady had no other reasonably suitable accommodation and thus the second limb of section 14(1)(e) of the Act is not satisfied.
[283D E, 285A B]


judgement:
Appeal No. 812 of 1973.
From the Judgment and Order dated 18.2.1970 of the Allahabad High Court in Spl.
Appeal No. 1032 of 1968.
G.L. Sanghi, K.K. Jain, Pramod Dayal, A.D. Sangar and Bishambar , Lal for the Appellant.
Gopal Subramanium and Mrs. Shobha Dikshit for the Respond ents.
The Judgment of the Court was delivered by THAKKAR, J.
The appellant invoked the extraordinary jurisdiction of the High Court under Article 226 of the Constitution of India in order to challenge the order passed by the respondent U.P. Electricity Board levying a sur charge of 5.5 paise per unit of electricity drawn by the appellant in excess of the permissible 70 per cent autho rised by the State Government.
State Government had imposed a ban on drawing electricity in excess of 70% per cent of the consumption in exercise of powers under Section 22B of the of 1910 having regard to the fact that on account of short fall of rain the generation of electricity had been adversely affected and it was not possible to supply electricity to the consumers as per the demand.
The learned Single Judge of the High Court dismissed the Writ Petition inter alia on the 333 ground that the equities were against the appellant (writ petitioner) in view of the fact that the respondent Board had purchased electricity from the Damodar Valley Corpora tion (D.V.C.) at the rate of 4.57 per unit in order to make available the electricity as per the demand of the appellant and other industrial units at their request.
Says the learned Single Judge: "It appears to me that there are no equities in favour of the petitioner, and on this ground also, the petitioner is not entitled to any relief.
The petitioner factory and other industries had requested the State Government and the Board to augment supply of electrical energy by obtaining it from the Damodar Valley Corporation and other sources and has offered to pay additional expenses which the State Government or the Board might have to incur for it.
In order to accommodate the petitioner factory and other industries the State Gov ernment and the Board did not exercise the power to disconnect their connections and obtained electrical energy from the Damodar Valley Corporation and had to pay certain sums of money therefore.
They were certainly enti tled to recover those amounts from the peti tioner factory and other 'industries.
It does not lie in the mouth of the petitioner now to say that the Board is not entitled to levy a surcharge for recovery of the amount which they have spent in obtaining extra electrical energy from the Damodar Valley Corporation".
The Division Bench has confirmed the decision of the learned Single Judge.
Two contentions have been urged in support of this appeal.
The first contention is that the Electricity Board had no authority to charge 5.5 paise per unit in excess of the agreed rate without giving one month 's notice as contem plated by the agreement.
The second contention is that the levy of the surcharge resulted in a retrospective levy and therefore, it was not in accordance with law.
So for as the principal contention is concerned we are unable to accede to the submission that the Board had no legal authority to levy 5.5 paise surcharge in respect of the supply in excess of the 70 per cent authorised by the, State Government.
The agreement itself does not envision the supply of electricity in violation of the ban imposed by the State Government in exercise of the power under section 22 B of the .
Nor does the agreement stipulate the rate at which such supply should be charged if not withstanding the ban against the supply, a consumer draws electricity in excess of the 334 permissible quantity.
Thus the agreement is silent on this aspect.
Therefore, the Board was justified in invoking its power under section 49(3) of the Electricity Supply Act, 1948 which authorises a Board to supply electricity by charging a different tariff having regard to the geographi cal position of the area, the nature of the supply, purpose for which the supply is required and 'any other relevant factors: Section 49 (3) of the Act is wide enough to cover a situation where electricity in excess of the authorised quantum is drawn in disregard of the ban imposed in view of the shortage of the supply position in the face of the ban imposed under Section 22 B of the as also to cover a situation where at the express request of the appellant (as per the averment contained in the affidavit filed on behalf of the respondent) electricity is purchased from some other authority (in the present ease from D.V.C.) and is supplied to the consumers.
We are, therefore, of the view that the electricity Board had the legal authority to levy and collect surcharge of 5.5 paise per unit from the appellant in regard to the supply in excess of the 70 per cent authorised in the context of section 22 B of the .
We are buttressed in this view by a decision of this Court in Adoni Cotton Mills etc.
vs The Andhra Pradesh State Electricity Board & Ors., [1977] 1 S.C.R. page 133.
In Adoni Cotton Mills 'case the view has been taken that the power to enhance the tariff is included in section 49 of the 1948 Act and that section 49(3) authorises a Board to fix different tariffs for the supply of electricity having regard to the geographical position etc and any other relevant factors.
The expression 'any other relevant factors ' is not to be construed ejusdern generis and that the combined effect of Section 49 and the terms and conditions of supply is that having regard to the nature of supply and other relevant factors particularly when there is shortage of electricity the Board has the power to enhance the rates.
If there is shortage of electricity there is to be restriction on supply and the Board can disconnect supply if the quota is exceed ed.
The Board can also impose higher rates if the quota is exceeded.
The imposition of higher rates is only to "sanc tion the rigour of ration by making persons who exceed the quota liable to pay higher rates.
" We are, therefore, of the opinion that so far as the first point is concerned the view taken by the High Court cannot be taken exception to.
With regard to the retrospective effect argument, the electricity was supplied from November, 1966 till February 20, 1967 on which date the notification imposing the levy was issued.
It was, therefore, urged that so far as the period anterior to February 20, 1967 is concerned the effect of the levy would be retrospective.
The High Court 'has taken the view that it does not amount to making the tariff retrospective but the effect of the notification is to recover the surcharge in respect of the energy which was supplied in excess of the permissible quota.
It was also urged on behalf of the re spondents that in so far as the period anterior to February 20, 1967 was concerned the appellant was not entitled to make the recovery as it would amount to altering the tariff.
This argument was advanced in the context of the stipulation in the agreement that 335 one month 's notice would be given before increasing the tariff.
Since we are of the view that the Board had the statutory authority to impose the surcharge in respect of the electricity supplied in excess of the permissible quota and having regard to the fact that the supply was made after obtaining it from the D.V.C. at a higher rate and having further regard to the fact that the impost of the surcharge is construed as having been made under the statutory author ity the stipulation in the agreement does not come into play.
Under the circumstances, we do not see any good ground to disturb the findings recorded by the High Court.
The appeal therefore, fails and is dismissed.
There will be no order as to costs.
A.P.J. Appeal dismissed.

summary/full:
The Appellant Company, in a writ petition, challenged the order passed by the respondent Electricity Board levy ing surcharge of 5.5 paise per unit on electricity drawn by the Company in excess of the permissible 70% authorised by the State Government.
The writ petition having been dis missed by a Single Judge of the High Court and the Division Bench having confirmed the decision, the appellant appealed to this Court.
In the appeal, it was contended; (i) that the Electrici ty Board had no authority to charge 5.5 paise per unit in excess of the agreed rate without giving one month 's notice as contemplated by the agreement; and (ii) that the levy of the surcharge resulted in retrospective levy and was there fore not in accordance with law.
Dismissing the appeal, HELD: 1.
The Electricity Board had the legal authority to levy and collect surcharge of 5.5 paise per unit from the appellant in regard to the supply of electricity in excess of the 70% authorised in the context of section 22 B of the .
[334 C] 2.
The agreement itself does not envision the supply of electricity in violation of the ban imposed by the State Government in exercise of the power under section 22B of the Act.
[333 G H] 3.1 Section 49(3) of the Electricity Supply Act autho rises a Board to supply electricity by charging different tariff having regard to the geographical position of the area, the nature of the supply, purpose for which the supply is required and any other relevant factors, and is wide enough to cover a situation where electricity in excess of the authorised quantum is drawn in disregard of the ban imposed in view of the shortage of the supply under section 22 B of the as also to cover a situation where at the express request of 332 the consumer electricity is purchased from some other au thority and is supplied.
[334 D, B] 3.2 The combined effect of s.49 and the terms and condi tions of supply is that having regard to the nature of supply and other relevant factors particularly when there is shortage of electricity the Board has the power to enhance the rates.
If there is shortage of electricity there is justification to impose restriction on supply.
The Board can also impose higher rates by way of sanction if the quota is exceeded.
[334 E] Adoni Cotton Mills etc.
vs The Andhra Pradesh State Electricity Board and Others, ; , relied upon.
In the instant case, having regard to the fact that the supply was made after obtaining it from the Damodar Valley Corporation at a higher rate and having further regard to the fact that the impost of the surcharge is construed as having been made under the statutory authority, the stipula tion in the agreement does not come into play.
[335 A B]


judgement:
Criminal Appeal No. 12 of 1978 From the Judgment and Order dated 19.4.1976 of the Andhra Pradesh High Court in Referred Trial No. 2 of 1976.
K. Ram Kumar for the Appellant.
G. Narasimhulu and S.K. Mehta for the Respondents.
The Judgment of the Court was delivered by B.C. RAY, J.
This appeal by special leave is against the judgment and order dated 19.4.1976 made by the High Court of Andhra Pradesh in the Referred Trial No. 2 of 1976 and Criminal Appeal Nos. 159, 168 and 169 of 1976 acquitting all the 7 accused who were convicted and sentenced by the Ses sions Court, West Godawari Division at Eluru, Andhra Pradesh in Sessions Case No. 71 of 1975.
The prosecution case in short is that on 23rd July, 1974 at 7.30 a.m. the accused persons forming themselves into an unlawful assembly in the house of the 1st accused and arming themselves with spears, sticks and crow bars attacked the deceased while he was returning from the canal carrying water in what is locally known as "Kavadi".
When the de ceased reached the house of the 1st accused, all the ten accused came from behind and the 2nd accused gave a blow with a stick on the back of the head of the deceased as a consequence of which he fell down on his back.
Then the 1st accused speared the deceased on his face and legs, the 5th accused poked the deceased on his right wrist with a crow bar and the 6th accused speared the deceased on his legs and hands.
The 329 rest of the accused then beated the deceased with sticks indiscriminately.
The deceased cried "Bobu".
This was heard by his wife (P.W.5) from her house which is situated about 150 yards.
She immediately ran to the scene of occurence and saw accused 1 to 8 and two others entering into the house of the 1st accused.
P.W. 5 then sent intimation to her brother P.W. 2 who was working as labourer in a sugar factory through P.W. 8.
P.W. 2 and others took the deceased to Bhimadole Police Station in a cart which is about 4 kms.
away from their house and lodged the F.I.R., exhibit P 1 wherein all the names of accused Nos. A1 to A4 and A6 to A8 as well as the nature of injuries inflicted on the person of the deceased were mentioned.
This FIR was registered at 9.30 a.m. and a case u/s 326 I.P.C. was registered.
Subsequently, the deceased was found dead on examination by the Doctor, P.W. 12 at the Government Hospital, Elurn.
The F.I.R. was then altered to one u/s 302 I.P.C.
The Inspector of Police made inquest of the dead body and the inquest report has been marked as exhibit P5.
All the 10 accused were charged u/s 147 I.P.C. The accused Al, A4, A5 and A6 who were armed with deadly weapons were also charged u/s 148 I.P.C. and accused A1 to A10 were charged u/s 302 read with section 149 I.P.C. They were all committed to the Court of Sessions.
The Sessions Judge after considering the entire evidence and also heating the counsel for the prosecution as well as the defence found that accused A 1 to A3 and A5 to A8 were guilty of the offence u/s 147 I.P.C. and also u/s 302 read with section 149 I.P.C. A1, A5 and A6 were also held guilty u/s 148 I.P.C.
The accused A4, A9 and A10 were however acquitted of the offence u/s 147 I.P.C. Accused A4 was also not found guilty of offence u/s 148 I.P.C. The accused A 1, A5 and A6 who were convicted u/s 302 read with section 149 I.P.C. were sentenced to death and they were directed to he hanged by their necks till their death subject to confirma tion by the High Court.
A3, A7 and A8 were convicted u/s 302 read with section 149 I.P.C. and they were sentenced to undergo imprisonment for life.
A2, was also convicted u/s 302 read with section 149 I.P.C. and he was sentenced to death and directed to be hanged by his neck till death.subject to confirmation by the High Court.
The accused A1 to A3 and A5 to A8 who were convicted u/s 147 I.P.C. were sentenced to undergo rigorous imprisonment for one year.
A1, A5 and A6 were convicted u/s 148 I.P.C. and they were sen tenced to rigorous imprisonment for two years.
All the above sentences were to run concurrently.
Against this judgment and order 3 criminal appeals being Criminal Appeal Nos.
159/1976, 168/1976 and 169/1976 were filed.
These criminal appeals along with R.T. No. 2 of 1976 were heard by the High Court of Andhra Pradesh, Hyderabad and the learned Judge by his order dated 5th May, 1976 acquitted all the accused of both the charges of rioting and murder levelled 330 against them and set aside the convictions and sentences allowing all the appeals and rejecting the reference.
It is against this judgment and order the instant appeal on special leave was filed before this court by the State.
This court granted special leave to appeal by its order dated 11.1.1978 and also ordered issue of bailable warrants against each of the accused persons in the sum of Rs.10,000 with one surety to the satisfaction of Additional Sessions Judge, Eluru.
We have heard the learned counsel for both the parties and we are constrained to hold that the judgment passed by the High Court acquitting all the accused is not a proper judgment in accordance with the provisions of Section 354 of the Code of Criminal Procedure 1973.
The learned Judge has not at all considered and marshalled the evidences examined on behalf of the prosecution particularly the evidences of PWs 1, 3, 4, 6 and 7 who were eye witnesses to the gruesome murder committed in the morning at about 7.30 a.m.
The names of all the 7 accused appeared in the F.I.R. lodged by PW 2 in the Police Station at 9.30 a.m., exhibit PI and exhibit P.23 and P.24 dated 23.7.1974.
The learned Judge did not formulate properly the points for decision and did not marshal the evidences on record and did not come to specific finding on each of the points for determination by recording specific reasons for arriving at the decision.
It is really unfortu nate that the learned Judge approached the case from wrong angle and without properly formulating the points for deci sion and without any proper appraisal of the evidences adduced by the prosecution to prove the guilt of the accused persons and also without adverting to the reasonings of the Sessions Judge, has perfunctorily come to the finding that the prosecution has failed to prove beyond doubt the case against the accused even though there are eye witnesses P.Ws. 1, 3, 4, 6 and 7 to the occurence.
In our considered opinion, this judgment is not in accordance with the mandatory requirements as laid down in Section 354 of the Code of Criminal Procedure.
We therefore, set aside the judgment and order of acquittal passed by the High Court of Andhra Pradesh and remit the ease back to the High Court, Andhra Pradesh for deciding the case in accord ance with law on a proper appraisal and marshalling of the evidences on record as early as possible.
The order of interim stay is vacated and bail bonds are cancelled.
The records be sent to the High Court forthwith.
The High Court will be free to consider whether the accused will be en larged on bail.

summary/full:
The ten accused persons forming themselves into an unlawful assembly in the house of A 1 and arming themselves with spears, sticks and crow bars attacked the deceased while he was returning from the canal carrying water in 'Kavadi '.
As a result of the injuries sustained by the deceased he died.
All the ten accused were charged under section 147 I.P.C. accused A 1, A4, A5 and A 6, who were armed with deadly weapons were also charged under section 148 I.P.C. and accused A 1 to A I0 were further charged under section 302 read with section 149 I.P.C.
The trial Court acquitted A 4, A 9 and A I0 of all the charges levelled against them.
Accused A 1 to A 3 and A 5 to A 8 were convicted section 147 I.P.C. and sentenced to undergo rigorous imprisonment for one year.
Accused A I, A 5 and A 6 were convicted section 148 I.P.C. and sentenced to undergo rigorous imprisonment for two years.
Accused A 1, A 2, A 5 and A 6 were convicted u/s 302 read with section 149 I.P.C. and sentenced to death.
Accused A 3, A 7 and A 8 were also convicted section 302 read with section 149 I.P.C. but sentenced to undergo imprisonment for life.
The High Court allowed the appeals flied by the convict ed accused and acquitted all of them of the charges levelled against them and rejected the reference.
Allowing the appeal of the State to this Court, HELD: 1.
The judgment passed by the High Court acquit ting all the accused is not a proper judgment in accordance with the provisions of section 354 of the Code of Criminal Proce dure 1973.
The learned Judge has not at all considered and marshalled the evidence of witnesses examined on behalf of the prosecution particularly the evidence of PWs.
1, 3, 4, 6 and 7 who were eye witnesses to the gruesome murder commit ted in the morning at about 7.30 a.m. 328 The names of all the seven accused appeared in the F.I.R. [330 C] 2.
The learned Judge approached the case from wrong angle and without properly formulating the points for deci sions and without any proper appraisal of the evidences adduced by the prosecution to prove the guilt of the accused persons and also without adverting to the reasoning of the Sessions Judge, has perfunctorily come to the finding that the prosecution has failed to prove beyond doubt the case against the accused even though there are eye witnesses P.Ws. 1, 3, 4, 6 and 7 to the occurrence.
[330 E] 3.
The judgment of the High Court is set aside and the case is remitted back to the High Court for deciding it in accordance with law on a proper appraisal and marshalling of the evidence on record as early as possible.
[330 F G]


judgement:
iminal Appeal No. 26 of 1978 From the Judgement and Order dated 17.11.1976 of the Kerala High Court in Criminal Revision Petition No. 263 of 1975.
Chettur Sankaran Nair and E.M.S. Anam for the Appellant.
Nemo for the Respondents.
The Judgment of the Court was delivered by THAKKAR, J.
Counterfeiters all over the world must be singing in ecstasy: "if there is heaven on earth, it is here, here, here ', for, according to the KeraLa High Court1, Indian law does not make counterfeiting of currency notes of any country in the world, other than that of India, an offence.
The High Court has persuaded itself by a process of judicial activism in reverse gear, that making of such counterfeit notes is not an offence under Section 489A of the Indian an Penal Code (I.P.C.) and that having in posses sion such counterfeit currency notes is not an offence under Section 489C of the I.P.C.
Such a view has been taken even though there is nothing in the language of these sections to warrant Such an interpretation as will become evident presently.
Judgment and Order rendered by the Kerala High Court in Cr.
R.P. 263 of 1975 on November 17, 1976, giving rise to the present appeal by certificate of fitness under Article 134(1)(c) of the Constitution of India.
320 Facts: The six respondents herein were charged with offences punishable under Sections 120B, 489A, 489B and Section 420 read with Sections 511 and 34 IPC.
The prosecu tion case against them was that in furtherance of a conspir acy entered into by accused nos.
1 to 4 to forge and coun terfeit American dollar notes of 20 dollar denomination, they indulged in counterfeiting by printing 2000 such notes.
Respondents 1 and 2 were further alleged to have been in possession of 148 forged currency notes knowing the same to be forged, with intent to use these forged notes as genuine.
The respondents were committed by the Magistrate to stand their trial before the Sessions Court, for offences, under Sections 120 B, 487A and 489C read with Sections 511 and 34 IPC.
It was contended by the respondents accused before the Sessions Court that a charge under Sections 489A and 489C of the IPC could be lawfully levelled only in the case of counterfeiting of 'Indian ' currency notes and not in the case of counterfeiting of 'foreign ' currency notes.
The conten tion was upheld by the Sessions Court at the threshold of the trial and the accused were discharged.
Aggrieved by the order of the Sessions Court discharging the respondents, the petitioner (State of Kerala) filed a Revision Petition before the High Court of Kerala.
The High Court by its order under appeal confirmed the order of discharge rendered by the Sessions Court holding that "in the absence of an expla nation similar to that in the case of bank notes; Section 489A and the Sections that follow which relate to counter feiting of currency notes do not apply to cases of counter feiting of dollar bills.
" The petitioner thereupon filed an application under Article 134 (1)(c) of the Constitution of India for leave to appeal to the Supreme Court.
By its order under appeal, the High Court certified it as a fit case for appeal to the Supreme Court as "the case involves considera bly important questions of law as to whether counterfeit American dollar notes will fall within the purview of Sec tions 489A and 489C of the Indian Penal Code.
" That is how the matter has come up before this Court.
Relevant provisions: The anatomy of the relevant provi sions requires to be X rayed at the outset.
The concerned provisions may therefore be screened: "489A. Whoever counterfeits, or knowingly performs any part of the process of counter feiting, any currency note or ank note, shall be punished with (imprisonment for life), or with imprisonment of either description for a term which may extend to ten years, and shall be liable to fine.
Explanation: For the purposes of this section and of sections 489B, 4(489C, 489D and 489E) the expression "bank note" means a promissory note or engagement for the payment 321 of money to bearer on demand issued by any person carrying on the business of banking in any part of the world, or issued by or under the authority of any State or Sovereign Power, and intended to be used as equivalent to, or as a substitute for money.
by Act 26 of 1955, section 117 and sch.
for "transportation for life" (w. e.f. 1 1 1956).
by Act 35 of 1950, section 3 and Sch.
II for "489C and 489D".
"489C. Whoever has in his possession any forged or counterfeit currency note or bank note, knowing or having reason to believe the same to be forged or counterfeit and intending to use the same as genuine or that it may be used as genuine, shall be punished with im prisonment of either description for a term which may extend to seven years, or with fine, or with both.
" Analysis: An analysis of Section 489A reveals that: (i) counterfeiting 'any ' currency note or bank note is an offence; (ii) knowingly performing any part of the process of counterfeiting any currency note or bank note is also an offence; and (iii) the prohibition against coun terfeiting or performing such process applies to currency notes as also to bank notes as defined by the explanation to Section 489A.
And inasmuch as the aforesaid expression interalia means any engagement1 for the pay ment of money to the bearer issued by or under the authority of any State or Sovereign power provided it is intended to be used as equiva lent to or substitute for money the prohibi tion also extends to counterfeiting etc.
of currency notes of any other sovereign power.
Outcome: This analysis reveals that the legislative embargo against counterfeiting envelops and takes within its sweep 'currency notes ' of all countries.
The embargo is not re stricted to 'Indian ' currency notes.
The legislature could have, but has not, employed the expression 'Indian currency 1.
A promise, obligation or other condition that binds.
(See Collins Dictionary) 322 note '.
If the legislative intent was to restrict the parame ters of prohibition to 'Indian currency ' only, the legisla ture could have said so unhesitatingly.
The ' expression 'currency note ' is large enough in its amplitude to cover the currency notes of 'any ' country.
When the legislature does not speak of currency notes of India the Court inter preting the relevant provision of law cannot substitute the expression 'Indian currency note ' in place of the expression 'currency note ' as has been done by the High Court.
The High Court cannot do so for, the Court can merely interpret the section; it cannot re write, recast or redesign the section.
In interpreting the provision the exercise undertaken by the Court is to make explicit the intention of the legislature which enacted the legislation.
In is not for the Court to reframe the legislation for the very good reason that the powers to 'legislate ' have not been conferred on the Court.
When the expression 'currency note ' is interpreted to mean 'Indian currency note ', the width of the expression is being narrowed down or cut down.
Apart from the fact that the Court does not possess any such power, what is the purpose to be achieved by doing so? A Court can make a purposeful interpretation so as to 'effectuate 'the intention of the legislature and not a purposeless one in order to 'defeat 'the intention of the legislators wholly or in part.
When the Court (apparently in the course of an exercise in inter pretation) shrinks the content of the expression 'currency note; to make it referable to only 'Indian currency note ', it is defeating the intention of the legislature partly inasmuch as the Court makes it lawful to counterfeit notes other than Indian currency notes.
The manifest purpose of the provision is that the citizens should be protected from being deceived or cheated.
The citizens deal with and trans act business with each other through the medium of currency1, (which expression includes coins as also paper currency that is to say currency notes).
It is inconceivable why the legislature should be anxious to protect citizens from being deceived or cheated only in respect of Indian currency notes and not in respect of currency notes issued by other sovereign powers.
The purpose of the legislation appears to be to ensure that a person accepting a currency note is given a genuine currency which can be exchanged for goods or services and not a worthless piece of paper which will bring him nothing in return, it being a counterfeit or a forged currency note.
Would the legislature in its wisdom and anxiety to protect the unwary citizens extend immunity from being cheated in relation to Indian currency notes but show total unconcern in regard to their being cheated in respect of currency notes issued by any foreign State or sovereign power?.
In the modern age a tourist from a foreign country may bring from his own country into India currency to the extent permissible under the law in India.
So also he may obtain foreign currency in exchange of Indian currency whilst in India provided he does so to the extent permissi ble by the Foreign Exchange Regulation Act, 1.
Currency n. 1.
a metal or paper medium of exchange that is in current use.
(Collins English Dictionary).
323 1973(1) and operates through an authorised person(2) known as money changer(3).
Would it be reasonable to assume that the legislature was totally oblivious of the need to protect them from being deceived and defrauded? It would be unwise to do so in the face ,of the internal evidence which pro vides a clue to the legislative anxiety on this score.
In fact the framers of the Code were so anxious to protect the general public from fraudulant acts of counterfeiters that not only have they defined the word "counterfeit" in very wide terms in the Indian Penal Code, but they have also prescribed a rule of evidence in Explanation 2 so as to draw an adverse presumption against the maker of the counterfeit article, as is evident from the definition of the term "Counterfeit" read with the Explanations in Section 28 of the Indian Penal Code(1).
What is more, the expression 'bank note ' employed in sections 489A to 489E of I.P.C. takes within its sweep an engagement for the payment of money issued by or under the authority of any State or Sovereign power as is evident from the analysis of the Section made hereinabove.
And it would therefore cover a Dollar Bill or Dollar Note as well.
A dollar bill issued by the Sovereign Government of United States of America would ipsofacto be covered by the expres sion 'bank note '.
And as revealed by the analysis made earlier, the prohibition would apply to the counterfeiting of a Bank note or being in possession of a counterfeit Bank note as well.
It would, therefore, in any case, be an offence to counterfeit a dollar bill or to be in possession of counterfeit dollar bill.
Section 13(1): The.
Central Government may, by notifica tion in the official Gazette, order that subject to such exemption, if any, as may be specified in the notification, no person shall except with the general or special permis sion of the Reserve Bank and on payment of the fee, if any, prescribed, bring or send into India any gold or silver or any foreign exchange or any Indian currency.
Explanation: For the purposes of this sub section, the bringing or send ing into any port or place in India of any such article as aforesaid intended to be taken out of India without being removed from the ship or conveyance in which it is being carried shall nonetheless be deemed to be a bringing, or, as the case any gold or silver or any foreign exchange or any Indian currency.
(2)No person shall, except with the general or special permission of the Reserve Bank or the written permission of a person authorised in this behalf by the Reserve Bank, take or send out of India any gold, jewellery or precious stones or Indian currency or foreign exchange other than foreign exchange obtained by him from an autho rised dealer or from a money changer.
The Reserve Bank may, on an application made to it in this behalf, anthorise any person to deal in for eign exchange.
(2) An authorisation under this Section shall be in writing and (i) may authorise dealings in all foreign currencies or may be restricted to authorising dealings in specified foreign currencies only; (ii) may authorise transactions of all descriptions in foreign currencies or may be restricted to authorising specified transactions only; (iii) may be granted to be effective for a specified period, or within specified amounts; (iv) may be granted subject to such conditions as may be specified therein.
(3) Any authorisation granted under sub section (1) may be revoked by the Reserve Bank at any time if the Reserve Bank is satisfied that 324 (foot note contd.) (i) it is in the public interest to do so; or (ii) the authorised dealer has not complied with the conditions subject to which the authorisation was granted or has contravened any of the provisions of this Act or of any rule, notification, direction or order made thereunder:.
Provided that no such authorisation shall be revoked on the ground specified in clause (ii) unless the authorised dealer has been given a reasonable opportunity for making a representation in the matter.
(4) An authorised dealer shall, in all his dealings in foreign exchange and in the exercise and discharge of the powers and of the functions delegated to him under section 74, comply with such general or special directions or in structions as the Reserve Bank may, from time to time, think fit to give, and except with the previous permission of the Reserve Bank, an authorised dealer shall not engage in any transaction involving any foreign exchange which is not in conformity with the terms of his authorisation under this section.
(5) An authorised dealer shall, before undertaking any transaction in foreign exchange on behalf of any person, require that person to make such declarations and to give such information as will reasonably satisfy him that the transaction will not involve, and is not designed for the purpose of, any contravention or evasion of the provisions of this Act or of any rule, notification, direction or order made thereunder, and where the said person refuses to comply with any such requirement or makes only unsatisfactory compliance therewith, the authorised dealer shall refuse to undertake the transaction and shall, if he has reason to believe that any such contravention or evasion as aforesaid is contemplated by the person, report the matter to the Reserve Bank.
The Reserve Bank may, on an application made to it in this behalf, authorise any person to deal in for eign currency.
(2) An authorisation under this section shall be in writing and (i) may authorise dealings in all foreign currencies or may be restricted to authorising dealings in specified currencies only; (ii) may authorise transactions of all descriptions in foreign currencies or may be restricted to authorising specified transactions only; (iii) may be granted with respect to a particular place where alone the money changer shall carry on his business; (iv) may be granted to be effective for a specified period, or within specified amounts; (v) may be granted subject to such conditions as may be specified therein.
(3) Any authorisation granted under sub section (1) may be revoked by the Reserve Bank at any time if the Reserve Bank is satisfied that: (i) it is in the public interest to do so; or (ii) the money changer has not complied with the condi tions subject to which the authorisation was granted or has contravened any of the provisions of this Act or of any rule, notification, direction or order made thereunder.
Provided that no such authorisation shall be revoked on the ground specified in clause (ii) unless the money changer has been given a reasonable opportunity for making a representa tion in the matter.
(4) The provisions of sub sections (4) and (5) 'of Section 6 shall, in so far as they are applicable, apply in relation to a money changer as they apply in relation to an autho rised dealer, (5) Explanation In this section, "foreign money" means foreign currency in the form of notes, coins or travellers ' cheques and "dealing" means purchasing foreign currency in the.
form of notes, coins or traveller 's cheques or selling foreign currency in the form of notes or coins.
325 Why then construe the expression 'currency note ' as being applicable only to an Indian currency note and not to a foreign currency note like a dollar bill? There is neither any compulsion of law nor of logic for indulging in the exercise undertaken by the High Court which in the opening part of the judgment has been adverted to as 'judicial activism in reverse gear '.
Nor was any ideal to be attain by doing so.
Why then stretch the unstretchable? It appears that the High Court lost its way whilst groping in the dark by a possibly misconceived and ill founded argument1 built on the circumstance that whilst the explanation to Section 489A in terms refers to a bank note issued 'under the au thority of any State or sovereign power ' similar explanation is not added in the context of the expression 'currency note '.
The High Court overlooked the fact that there was neither any occasion, nor any reason, nor any need, for doing so.
For, the expression 'currency note ' as it stood was wide and pervasive enough to embrace the currency notes issued by India as also currency notes issued by any other country in the world.
There was therefore no need to add a similar explanation.
It would have been futile to amplify that the expression 'currency note ' which on a plain reading covers 'all ' currency notes meant what it said.
To read the expression 'any currency note ' to mean and refer to 'Indian currency note ' is to misread the expression by doing vio lence both to the letter and spirit thereof unmindful of the fact that the former expression in its plentitude covers the currency notes issued by any and every country of the world whereas the letter is applicable to only one of the coun tries in the world.
The High Court also fell in error in being influenced by the definition of currency notes em bodied in the Indian Paper Currency Act (Act XX of 1822).
The High Court has overlooked the obvious fact that the definition contained 1 in Section 2 of the said Act is only for the purposes of that particular Act and it cannot be imported into Section 489A to 489E of the Indian Penal Code, as has been done by the High Court.
The High Court was thus wholly wrong in exerting itself unnecessarily and bending backwards in order to hold that Sections 489A to 489E are not 1.
A person is said to "counterfeit" who causes one think to resemble another thing, intending by means of that resemblance to practise deception, or knowing it to be likely that deception will thereby be practised.
Explanation 1 It is not essential to counterfeit ing that the imitation should be exact.
Explanation 2 When a person causes one thing to resemble another thing, and the resemblance is such that a person might be deceived thereby, it shall be presumed, until the contrary is proved, that the person so causing the one thing to resemble the other thing intended by means of that resemblance to practise deception or knew it to be likely that deception would thereby be practised.
" 1. Says the High Court: "The omission of an explanation in Sec. 489A for the expression "currency note" similar to the one for 'hank note ' thus assumes importance.
The expression could refer only to the currency notes issued by the Govern ment of India.
" 326 applicable to currency notes other than Indian currency notes.
And in holding that counterfeiting of or possessing of counterfeit dollar bills or dollar notes is not an of fence under the Indian law, thereby issuing a carte blanche to the counterfeiters of the world to establish their head quarters within the State of Kerala with a view to carry on their activities with impunity under the umbrella unwitting ly opened for them by the judgment of the High Court.
The view taken by the High Court is thus thoroughly unsustainable.
The judgment and order of discharge rendered by the High Court are therefore reversed and set aside.
The matter will not to go back to the trail court for proceeding further in accordance with law in the light of the observa tions made hereinabove.
Appeal is accordingly allowed to this extent.
M.L.A. Appeal allowed.

summary/full:
The respondents were charged with offences punishable under section 120B, 489A, 489C and s420 read with sections 511 and 34 IPC for forging and counterfeiting American dollar notes of 20 dollar denomination, by printing 2000 such notes.
Re spondents 1 and 2 were further alleged to have been in possession of 148 forged currency notes knowing the same to be forged, with intent to use these forged notes as genuine.
The accused respondents contended before the Sessions Court that a charge under section 489A and 489C of the IPC could be lawfully levelled only in the case of counterfeiting of 'Indian ' currency notes and not in the case of counterfeit ing of 'foreign ' currency notes.
The Sessions Court upheld the aforesaid contention and discharged the accused respond ents.
The High Court also confirmed the aforesaid order of discharge.
Allowing the appeal by appellant State and remanding the case to the trial court, HELD: 1.
The High Court was wrong in holding that sections 489A to 489E are not applicable to currency notes other than Indian currency notes and that counterfeiting of or possess ing of counterfeit dollar bills or dollar notes is not an offence under the Indian Law.
Therefore, the judgment and order of discharge rendered by the High Court are reversed and set aside.
The matter will now go back to the trial court for proceeding further in accordance with law.
[325 F 326 C] 2.1 An analysis of section 489A reveals that: (i) counterfeiting 'any ' currency 318 note or bank note is an offence; (ii)knowingly performing any part of the process of counterfeiting any currency note or bank note is also an offence; and (iii) the prohibition against counterfeiting or performing such process applies to currency notes as also to bank notes as defined by the explanation to section 489A.
And inasmuch as the aforesaid ex pression interalia means any engagement for the payment of money to the bearer issued by or under the authority of any State or Sovereign power provided it is intended to be used as equivalent to or substitute for money the prohibition also extends to counterfeiting etc.
of currency notes of any other sovereign power.
[321 D G] 2.2 The expression 'currency note ' under section 489A is large enough in its amplitude to cover the currency notes of 'any ' country.
When the legislature does not speak of cur rency notes of India the court interpreting the relevant provision of law cannot substitute the expression 'Indian currency note ' in place of the expression 'currency note '.
When the expression 'currency note ' is interpreted to mean only 'Indian currency note; the width of the expression is being narrowed down or cut down.
[322 A C] 2.3 The court can merely interpret the section, it cannot re write, recast or redesign the section.
In inter preting the provision the exercise undertaken by the court is to make explicit the intention of the legislature which enacted the legislature.
It is not for the court to reframe the legislation for the very good reason that the powers to 'legislate ' have not been conferred on the court.
When the court shrinks the content of the expression 'currency note ', to make it referable to only 'Indian currency note ', it is defeating the intention of the legislature partly inasmuch as the court makes it lawful to counterfeit notes other than Indian currency notes.
The manifest purpose of the provision is that the citizens should be protected from being deceived or cheated.
The citizens deal with and transact business with each other through the medium of currency.
It is incon ceivable why the legislature should be anxious to protect citizens from being deceived or cheated only in respect of Indian currency notes and not in respect of currency notes issued by other sovereign powers.
[322 B 322 F] 2.4 To read the expression 'any currency note ' to mean and refer only to 'Indian currency note 'is to misread the expression by doing violence both to the letter and spirit thereof unmindful of the fact that the former expression in its plentitude covers the currency notes issued by any and every country of the world whereas the latter is applicable to only one of the countries in the world.
[325 D] 3.
The expression 'bank note ' employed in sections 489A to 489E of IPC takes within its sweep an engagement for the payment of money issued by or under 319 the authority of any State or Sovereign power as is evident from the analysis of section 489A.
It would therefore cover a dollar bill or dollar note as well.
A dollar bill issued by the Soveriegn Government of United States of America would ipsofacto be covered by the expression 'banknote '.
And as revealed by the analysis made earlier, the prohibition would apply to the counterfeiting of a Bank note or being in possession of a counterfeit Bank note as well.
It would, therefore, in any case, be an offence tO counterfeit a dollar bill or to be in possession of a counterfeit dollar bill.
[323 C D] 4.
The definition contained in section 2 of the Indian Paper Currency Act is only for the purpose of that particular Act and it cannot be imported into section 489A to 489E of the Indian Penal Code.
[325 E]