2ND AMITY NATIONAL TRIAL ADVOCACY TOURNAMENT 2022

TEAM CODE: 38

BEFORE THE HON’BLE SUPREME COURT OF ARESSIA, AT AHALI CITY

IN THE MATTERS OF:

TWO ARESSIAN STATES & OTHERS ... APPELLANT

V.

THE UNION OF ARESSIA ... RESPONDENT

APPEAL NOS. ___/2014, ___/2014,

CLUBBED WITH

WRIT PETITION NOS. ___/2010, ___/2012

ON SUBMISSION TO THE HON’BLE SUPREME COURT OF ARESSIA

UNDER ARTICLE 32 OF THE CONSTITUTION OF ARESSIA

WRITTEN SUBMISSIONS ON BEHALF OF THE RESPONDENT

COUNSEL APPEARING ON BEHALF OF THE RESPONDENT

2ND AMITY NATIONAL TRIAL ADVOCACY TOURNAMENT 2022

COUNSEL APPEARING ON BEHALF OF THE RESPONDENT

2ND AMITY NATIONAL TRIAL ADVOCACY TOURNAMENT 2022

COUNSEL APPEARING ON BEHALF OF THE RESPONDENT

 2ND AMITY NATIONAL TRIAL ADVOCACY TOURNAMENT 2022

STATEMENT OF ISSUES

ISSUE 1: WHETHER ABHINAV IS LIABLE FOR THE RAPE OF SOUMYA U/S

376

ISSUE 2 : WHETHER ABHINAV IS LIABLE FOR FORGERY U/S 420, 463, 464
AND 466 IPC?

ISSUE 3: WHETHER MR. ABHINAV HAS DEFRAUDED MS. SOUMPYA

UNDER SEC 406 OF IPC WHILE GETTING THE HOUSE REGISTERED IN HIS
OWN NAME?

COUNSEL APPEARING ON BEHALF OF THE RESPONDENT

2ND AMITY NATIONAL TRIAL ADVOCACY TOURNAMENT 2022

COUNSEL APPEARING ON BEHALF OF THE RESPONDENT

 2ND AMITY NATIONAL TRIAL ADVOCACY TOURNAMENT 2022

SUMMARY OF ARGUMENTS

ISSUE 1: WHETHER ABHINAV IS LIABLE FOR THE RAPE OF SOUMYA U/S

376

ISSUE 2 : WHETHER ABHINAV IS LIABLE FOR FORGERY U/S 420, 463, 464
AND 466 IPC?

ISSUE 3: WHETHER MR. ABHINAV HAS DEFRAUDED MS. SOUMPYA

UNDER SEC 406 OF IPC WHILE GETTING THE HOUSE REGISTERED IN HIS
OWN NAME?

COUNSEL APPEARING ON BEHALF OF THE RESPONDENT

 2ND AMITY NATIONAL TRIAL ADVOCACY TOURNAMENT 2022

ARGUMENTS ADVANCED

ISSUE 1: WHETHER ABHINAV IS LIABLE FOR THE RAPE OF SOUMYA U/S

376

[1.1] UNTAINTED CONSENT OBTAINED EXONERATING ACCUSED FROM

CRIMINAL LIABILITY.

1. It is most humbly submitted before this Hon’ble Court that untainted consent has
been obtained of the Complainant. It can be explicitly known under two premises.
Firstly, absence of misconception of fact and secondly, promise to marry not the sole
rationale for consenting to physical relationship.

2. Explanation 2 appended to section 375 of the Indian Penal Code defines consent as

 “an unequivocal voluntary agreement when the woman by words, gestures
or any form of verbal or non-verbal communication,
communicates willingness to participate in the specific sexual
act”.
3. Consent is an act of reason weighing as in a balance of good and evil on each side. 1
The same was observed in the case of R v. Olugboja2
“Consent in rape covers states of mind ranging widely from actual desire to
reluctant acquiescence and the issue of consent should not be left to the jury
without some further direction.”
4. The Code3 defines consent in a passive tone which reads as follows-
‘Consent known to be given under fear or misconception.—A consent is not
such a consent as it intended by any section of this Code, if
the consent is given by a person under fear of injury, or
under a misconception of fact, and if the person doing the act
knows, or has reason to believe, that the consent was given in
consequence of such fear or misconception; or Consent of
insane person.—if the consent is given by a person who, from
unsoundness of mind, or intoxication, is unable to understand the nature and
consequence of that to which he gives his consent; or Consent of child.—unless

COUNSEL APPEARING ON BEHALF OF THE RESPONDENT

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the contrary appears from the context, if the consent is given by a person who
is under twelve years of age.’
5. Same has been iterated in the case of Rao Harnarain Singh Sheoji Singh v. State4
“Consent, on the part of a woman as a defence to an allegation of rape,
requires voluntary participation, not only after the exercise of intelligence, based
on the knowledge, of the significance and moral quality of the act, but after
having freely exercised a choice between resistance and assent.”
6. Plain reading of the facts of the case coupled with statement of the Accused
and the Complainant negate presence of any malicious intent and misconception of
fact to obtain consent of the Complainant. Both parties were romantically involved
and mutually decided to have live-in subsistence committing to an emotional and
physical relationship.
7. A belief that the promise to marry was meant to be fulfilled is not a misconception of
fact. Such a question shall arise only if the act consented to, is believed by the person
consenting to be something else, and on that pretext sexual intercourse is committed. 5
This is nothing like the present case as the Accused has never denied marrying the
prosecutrix and has performed earnestly and committedly in furtherance to that
promise.
8. The counsel refers to In Jayanti Rani Panda vs. State of West Bengal and another6,
wherein it has been clearly stated-
"The failure to keep the promise at a future uncertain date due to reasons
not very clear on the evidence does not always amount to a
misconception of fact at the inception of the act itself. In order to come
within the meaning of misconception of fact, the fact must
have an immediate relevance. The matter would have been different if
the consent was obtained by creating a belief that they were already
married. In such a case the consent could be said to result from a
misconception of fact. But here the fact alleged is a promise to marry we
do not know when. If a full grown girl consents to the act of sexual
intercourse on a promise of marriage and continues to indulge in such activity
is not an act induced by misconception of fact. S. 90 IPC cannot be called in
aid in such a case to pardon the act of the girl and fasten criminal liability
on the other, unless the Court can be assured that from the very inception the
4

COUNSEL APPEARING ON BEHALF OF THE RESPONDENT

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accused never really intended to marry her."

9. In the instant case, the prosecutrix was a grown-up workingwoman. She was deeply
in love with the appellant. It was assured to the prosecutrix that after settling in
terms of job prospects and family dynamic, question of marriage shall be satisfied.
She had sufficient intelligence to understand the significance and moral quality of the
act she was consenting to.7 She thus, freely exercised a choice between resistance and
assent and decided to succumb to a physical relationship. She must have known the
consequences of the act, particularly when she was conscious of the fact that their
marriage is based on a contingency.
10. All these circumstances lead us to the conclusion that she freely, voluntarily, and
consciously consented to having sexual intercourse with the Accused, and her
consent was not in consequence of any misconception of fact.They met often, and
it does appear that the prosecutrix permitted him liberties which, if at all, is
permitted only to a person with whom one is in deep love.

11. The same can be ratified in the case of Uday vs State Of Karnataka8
“It usually happens in such cases, when two young persons are madly in love, that
they promise to each other several times that come what may, they will get
married. As stated by the prosecutrix the appellant also made such a promise on
more than one occasion. In such circumstances the promise loses all significance,
particularly when they are overcome with emotions and passion and find
themselves in situations and circumstances where they, in a weak moment,
succumb to the temptation of having sexual relationship. This is what
appears to have happened in this case as well, and the prosecutrix willingly
consented to having sexual intercourse with the appellant with whom she was
deeply in love, not because he promised to marry her, but because she also
desired it. In these circumstances it would be very difficult to impute to the
appellant knowledge that the prosecutrix had consented in consequence of a
misconception of fact arising from his promise. In any event, it was not possible
for the appellant to know what was in

the mind of the prosecutrix when she consented, because there were more
reasons than one for her to consent.”

COUNSEL APPEARING ON BEHALF OF THE RESPONDENT

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1.2. Mere non-fulfilment of promise does not ipso facto vitiate consent

1. The counsel humbly states that consent is not destroyed by contending such
consent to be derived from subsequent promise to marry. To attract liability
under Sec 375(2) of the Code9, it must be proved beyond reasonable doubt that
the act was done ‘without her consent’. Onus of proof lies with the
Complainant10and hence it must be blatantly established whether the Accused
had induced the Complainant into sexual activity under pretence of marriage.
2. The Apex Court in the case of Dilip kumar v State of Bihar 11, stated as follows-
“Consent given by a women believing the man’s promise to marry would fall
within the expression “without her consent” vide clause (ii)to section 375, only if
it is established that from the very beginning the man never really intended to
marry her and the promise was mere hoax.”
3. In the instant case, when prosecutrix had taken a conscious decision to participate
in the sexual act only being impressed by the Accused’s promise to marry and the
Accused’s promise was not false from its inception, which can be corroborated to
the conduct of the Accused as given in the statement also reiterated with
statement of DW1 and DW2, clause (2) of Sec 375 is not attracted and
established. In such a situation, the Accused would be liable for breach of
promise to marry for which he will be liable for damages under civil law.
4. In Anurag Soni vs. State of Chhattisgarh5,  the Apex Court, has attempted to
make a distinction between a promise which is unfulfilled and a promise which is
false from the very beginning. The natural corollary that flows from it is that if a
man can prove that he intended to marry the woman but changed his mind later,
then it's not rape. It's only considered rape if it's established that he had dubious
intentions from the beginning of the relationship.
5. There is no evidence to prove conclusively that the appellant never intended to
marry her. Perhaps he wanted to, but owing to the unsettling economic and
family conditions prevailing in his life as well as deteriorating condition of their
relationship lead to delay in fulfilment of promise.
6. The Counsel states herein that there does not necessarily have to be complete

5
2019 (6) SCALE 211

COUNSEL APPEARING ON BEHALF OF THE RESPONDENT

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willingness to constitute consent. A woman's consent to intercourse may be

hesitant, reluctant or grudging, but if she consciously permits it there is
consent12.Thus, despite the fact that she was reluctant at first, cannot destroy
consent on a contingent possibility i.e., solemnization of marriage.
7. The consent obtained through a false promise of marriage is based on a promise
which is contingent in nature and thus Section 90 of the Code 6 will not come to
aid in such a scenario.7
8. Thus, even if the contention of the Complainant are accepted, false promise to
marry will not ipso facto make a person liable for rape if the prosecutrix
impliedly or expressly consented to the act.

6
ipc
7

COUNSEL APPEARING ON BEHALF OF THE RESPONDENT

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ISSUE 2 : WHETHER ABHINAV IS LIABLE FOR FORGERY U/S 420, 463,

464 AND 466 IPC?

COUNSEL APPEARING ON BEHALF OF THE RESPONDENT

2ND AMITY NATIONAL TRIAL ADVOCACY TOURNAMENT 2022

COUNSEL APPEARING ON BEHALF OF THE RESPONDENT

2ND AMITY NATIONAL TRIAL ADVOCACY TOURNAMENT 2022

COUNSEL APPEARING ON BEHALF OF THE RESPONDENT

2ND AMITY NATIONAL TRIAL ADVOCACY TOURNAMENT 2022

COUNSEL APPEARING ON BEHALF OF THE RESPONDENT

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ISSUE 3: WHETHER MR. ABHINAV HAS DEFRAUDED MS. SOUMPYA UNDER

SEC 406 OF IPC WHILE GETTING THE HOUSE REGISTERED IN HIS OWN
NAME?

[3.1.] NO STATUTORY TITLE OR ENTRUSTMENT OF PROPERTY

1. The Counsel humbly submits that claim over the disputed property asserted by the
Complainant is otiose, illegal and fraudulent attempt to cause detriment to the
Accused. The property in dispute is a self-acquired or solely owned property of the
Accused which blatantly doesn’t bring the ownership into question.
2. Two conditions to fulfil for attracting liability under Sec 405 of the Code 8 is firstly,
entrustment of property which is of paramount importance and secondly,
misappropriation of such property.
3. The property was bought by my client from his own earnings, passive sources and a
home loan registered in his name. Herein the Accused has an indefinite, unrestricted
and unlimited right to possess, manage and enjoy his property.9
4. According to the Registration Act, 1908, the property belongs to the person under
whose name the property has been registered.10 When it comes to the bank, it belongs
to the person under whose name the loan has been granted and is accountable to pay
the loan instalments, which in this case solely belongs to the Accused. The Accused
can explicitly exert his ownership via record of payment to registry and home loan
agreement.
5. The onus to prove title of the property lies with the Complainant 11 which cannot be
supported in light of the property registration and home loan agreement credentials.
The Complainant is neither a Co-owner, Co-borrower or Co-applicant in the
aforementioned home loan hence not a legally obligated party to pay-off loan. Hence
the property was not entrusted to the Accused in fact a self-acquired property of the
Accused. Unless there is entrustment there can be no offence under sec 406 of the
Code.12
6. Section 405 of the Code requires doing of something with respect to property which
would indicate either misappropriation or coversion or its use or disposal in
8

9
Austin’s Jurisprudence, 5th Ed, Vol II, ‘Study of Jurisprudence’, p. 1073
10
Section 17, The Registration Act, 1908
11
AIR 2003 SC 4548
12

COUNSEL APPEARING ON BEHALF OF THE RESPONDENT

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contravention of any legal contract, express or implied. A mere dispute of civil nature
will not attract provisions of this section.

[3.2.] NO EVIDENCE TO RATIFY TRANSACTION

1. The Complainant asserts entrustment and title over property on the ground of
repayment of loan or in terms of monetary contribution to the property. This gives rise
to an oral agreement between the parties wherein the onus of proving validity of such
agreement rests with the asserting party.

In the case of S.V. Narayanaswamy vs. Savithramma13, the Appellant sought to prove

the existence of an oral agreement, which was vehemently claimed to exist, with
respect to sale of property. With the onus to prove being on the Appellant, it did so,
by producing cheques of several amounts, towards the entire consideration of the
property. By producing various pieces of evidence, which indicated towards a whole,
the court upheld the existence of the oral agreement, based on the scrutiny of the
evidence provided.

2. On this rationale, oral agreements, although may sound like a bag of quagmire, can be
proved in a court of law, through several circumstantial evidence. 14 Evidence can be
endorsed through various means. Firstly, authorization to pay off by the bank. Since,
the Complainant is neither a Co-Owner, Co-borrower or a CO-Applicant, makes her a
third party not legally obligated to repay. A person can pay off debts on behalf of
family members, friends etc. In such a situation an authorization to pay-off can be
secured from the bank to validate such transaction and secondly record of transaction.
The complainant fails to furnish any bank statement, or record endorsing such
payment.

3. The Complainant has furnished no evidence to support her claim but rather just a
statement contending monetary contribution in the property which is a baseless and
fabricated statement. Such a fabricated contention can be corroborated to statement
made by the Accused and PW1 under Section 21 of the Evidence Act ratifying no
13
MANU/KA/3784/2013
14
(Shaikh, 2019)

COUNSEL APPEARING ON BEHALF OF THE RESPONDENT

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monetary contribution in the acquisition or furnishing of the said property as well as

domestic expenses.15 Conclusively, the Complainant vehemently fails to prove
ownership as there is no evidence of the said payment.

4. Even if the contentions of such payment made is accepted, Section 405 of the Code
requires doing of something with respect to property which would indicate either
misappropriation or conversion or its use or disposal in contravention of any legal
contract, express or implied. A mere dispute of civil nature will not attract provisions
of this section16 i.e. damages can be claimed for her share of investment and not title
over property.

[3.3] NO ASSIGNMENT OF CONTRACT

1. To exert a legally enforceable claim over the disputed property the basis of such claim
shall be legal and justiciable. If the major liability of repayment was borne by the
Complainant such a conduct attracts assignment of contract. ‘Assignment’ means
transfer of contractual rights or liability by a party to the contract to some other
person who is not a party. It would not be wrong to say that as a matter of established
principle, obligations are not assignable and once assigned it amounts to novation. 17
Herein, there was no legally enforceable assignment existed between the parties even
by way of oral agreement since there was no novation.

In  Khardah Company Ltd Vs. Raymon and Co. (India) Private Ltd 18, a Five Judges
Bench of the Apex Court held in para 19 that :-
"an assignment of contract might result of transfer either of the rights or of the
obligations thereunder. But there is a well-recognized distinction between these
two classes of assignments. As a rule obligations under a contract cannot
be assigned except with the consent of the promisee, and when such consent is
given, it is really a novation resulting in substitution of liabilities. On the other
hand rights under a contract are assignable unless the contract is personal in its
nature or the rights are incapable of assignment either under the law or under an
agreement between the parties.”
15
Statement of witness
16
Mohammad sulaiman v. mohammud ayub
17
Assignment Of Rights And Its Practical Relevance In Financial Transactions: A Lender’s Perspective,
Krishnendu Kanungo & Pritisha Chakraborty∗2019
18
AIR 1962 SC 1810

COUNSEL APPEARING ON BEHALF OF THE RESPONDENT

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2. The assignment of a debt can never carries with it the assignment of the obligations of

the assignor, and unless there is a novation of the contract by all the parties, there
cannot be a transfer of the obligations of the assignor as per provisions contained
in Section 130 of the Transfer of Property Act, 1882.19

3. The principle that the burden under a contract cannot be transferred so as to discharge
the original contractor without the consent of the other party means that, as a general
rule, the assignee of the benefit of a contract involving mutual rights and obligations
does not acquire the assignor’s contractual obligations.20 The introduction of the new
party to an existing contract would itself amount to a novation of the existing contract,
that is, the creation of a new contract between the original party and the new party.
Courts have proceeded on the basis that a transfer of “obligations” can be effectuated
only through a novation.

4. Even though the Complainant agreed to bear such obligation, subsequent act of
novation and signification of such alteration was not made known to the bank. Such
an assignment cannot be legally sustained without novation of original contract
executed by the assignor and debtor.

[3.4] RIGHT WAIVED OFF BY THE COMPLAINANT

1. The counsel humbly submits before this Hon’ble Court that the Complainant waived
off her right over the property when she had negated my Client’s proposition to take a
joint loan. The Accused provided the opportunity to avail a joint loan which was
knowingly denied by the Complainant thereby relinquishing all subsequent rights over
the property.

2. In State of Rajasthan Case21,it has been defined- 'legal right' as an interest which the
law protects by imposing corresponding duties on others. In the same case, the
Supreme Court has defined the term 'right' (e.g. liberty) as an exemption from the
subjugation of legal power of another. Be that as it may, a right which has been
19
Section 130 of the Transfer of Property Act, 1882
20
Chitty on Contracts, para 19-077, Sweet and Maxwell, 30th edn. 2008.
21
(1977) 3 SCC 592

COUNSEL APPEARING ON BEHALF OF THE RESPONDENT

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conferred on an individual, either by legislation or contractual provisions, such a right

can be waived off by the individual which might result in complete abandonment of
legal privilege cast by such legal or contractual provision. 

3. According to the Black's Law Dictionary22, the term "Waiver" has been defined as the
voluntary relinquishment or abandonment of a legal right or advantage. It is an act of
surrender of benefit or privilege. The waiver of right requires a prior-knowledge of an
existing right by the person who seeking waiver of such right. 23 A person is required
to be fully cognizant of his rights before waiving off such rights. Therefore, there
cannot be any waiver unless the person who has said to have waived off the right with
full knowledge of such right, abandons the same.24

4. The Complainant was made aware of the corresponding benefits to such loan in terms
of taxation and right over property and voluntarily agreed to part with such benefits.
The statement of the both parties corroborate the knowledge of this fact.

5. The Doctrine of Waiver finds its place under Section 63 of the Contract Act which
provides for relinquishment of rights between the parties. Rights that may be
relinquished include obligations as well as claims. In Waman Srinivas Case25 and held
that waiver constitutes abandonment of a right and normally, everybody is at liberty to
waive such a right.

6. It is pertinent to note here that a person cannot retract from its exercise of waiver of
rights in a situation where such person has communicated its intent to the other party
pertaining to waiver of his/her rights and has acted on such intent. The principle of
estoppel also prevents retraction from such waiver where there has been a
simultaneous change in conduct of the other party on account of communication
regarding waiver. Thus, if the Accused refuses to transfer property in her name
subsequent to her willingly relinquishing such right, the complainant shall not be
permitted to retract thereon. This state of affairs is ratified by the maxim of law
"Cuilibet licet renuntiare juripro se introducto".
22
Bryan A. Garner, Black's Law Dictionary (8th Edn., Thomson Reuters 2009)
23
AIR 1957 SC 425
24
AIR 1979 SC 621
25
AIR 1959 SC 689

COUNSEL APPEARING ON BEHALF OF THE RESPONDENT

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Therefore, owing to absence of entrustment of property, evidence of such repayment,

contract of assignment and voluntary waiving off ownership rights, the Complainant’s
claim are unreasonable and unsubstantiated. Hence not entitled to share in the disputed
property nor is the Accused is liable for criminal breach of trust by securing the house in
his own name.

PRAYER

Wherefore in the light of the issues raised, arguments advanced and authorities cited, it is
humbly requested that this Honourable Court may be pleased to adjudge and declare:

COUNSEL APPEARING ON BEHALF OF THE RESPONDENT

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1. That the writ petition filed by the Forum for Environmental Right (FER) is
maintainable before the High Court of Nerduda.

2. That Section 3 of the Linking of River Act, 2010 is ultra vires to the Constitution of
Aressia

3. That the exclusion and non-implementation of the Linking of Rivers Project for the
State of Vindhya violates the fundamental rights of the people of Vindhya and
Normanda.

4. That the Linking of Rivers Act, 2010 violates the environmental rights of citizens of
Aressia and the provisions of the Forest (Conservation) Act, 1980

And pass any such order, writ or direction as the Honourable Court deems fit and
proper, for this the Appellants shall duty bound pray.

ALL OF WHICH IS RESPECTFULLY SUBMITTED

COUNSEL FOR THE APPELLANTS

COUNSEL APPEARING ON BEHALF OF THE RESPONDENT