Intra Moot Court Competition, PIMR Department of Law

TEAM CODE: 29

INTRA MOOT COURT COMPETITION, 2024

Before

THE HON’BLE HIGH COURT OF MADHYA PRADESH, INDORE BENCH

Petition Filed Under Sec 482 of The Code of Criminal Procedure, 1973

IN THE MATTER OF
MOHANLAL …………………………………………….…....... PETITIONER

v.

SURESH KUMAR ……………………………..………………… RESPONDENT

MEMORANDUM ON BEHALF OF THE PETITIONER

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TABLE OF CONTENTS
TABLE OF CONTENTS _______________________________________________________ 2

List of Abbreviations __________________________________________________________ 4

Index of Authorities ___________________________________________________________ 5

Statement of Jurisdiction________________________________________________________ 7

Statement of facts _____________________________________________________________ 8

Statement of Issues ____________________________________________________________ 9

Summary of Arguments _______________________________________________________ 10

1. WHETHER THE AGREEMENT ENTERED BY THE COMPLAINANT AND ACCUSED IN LIEU OF THE

REPAYMENT OF THE LOAN AMOUNT IS LEGALLY VALID? ___________________________ 10

2. WHETHER THE EX-PARTE DISMISSAL OF THE SUIT BY JUDICIAL MAGISTRATE FIRST CLASS IS

JUSTIFIED? _______________________________________________________________ 10

3. WHETHER THE HON’BLE HIGH COURT HAS THE JURISDICTION TO RESTORE THE COMPLAINT

BY SETTING ASIDE THE ORDER DATED 20TH MARCH 2023 PASSED BY JUDICIAL MAGISTRATE FIRST

CLASS, INDORE? ___________________________________________________________ 10

Arguments Advanced _________________________________________________________ 11

3.1. ISSUE -1 __________________________________________________________ 11

3.2. OFFER AND ACCEPTANCE: _____________________________________________ 11

3.3. LAWFUL CONSIDERATION: ____________________________________________ 11

3.4. LEGAL CAPACITY: ___________________________________________________ 12

3.5. FREE CONSENT: _____________________________________________________ 12

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3.6. LAWFUL OBJECT: ___________________________________________________ 12

4. ISSUE 2: ___________________________________________________________ 14

5. ISSUE - 3: __________________________________________________________ 15

5.1. PRINCIPLE OF NATURAL JUSTICE ________________________________________ 16

Prayer _____________________________________________________________________ 17

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LIST OF ABBREVIATIONS

ABBREVIATION MEANING

AIR All India Reports

Art Article

Bom Bombay

Cr.P.C Criminal Procedure Code

Hon’ble Honourable
High Court
HC

i.e that is

SCC Supreme Court Cases

SCR Supreme Court Reporter

Sec Section
Others
Ors

§ Section

Viz Namely

u/s Under section

Vs. Versus

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INDEX OF AUTHORITIES

STATUTES AND RULES

Constitution of India,1950 11

Indian Contract Act ,1872

3
The Negotiable Instrument Act, 1872 2
The Code of Criminal Procedure, 1973 4

BOOKS

Avtar Singh, Law of Contract & Specific Relief

D.D Basu Criminal Procedure Code, 1973

Kelkar R.V Criminal Procedure Code

The Indian Contract Act, by Pollock & Mulla

Contract Act by R.k Bangia

DYNAMIC LINK
www.manupatra.com

www.scconline.com

www.westlawindia.com

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CASE LAWS
Lalman Shukla v. Gauri Dutt (1913) 40 ALJ 489
Union of India v. Uttam Singh Duggal and Co. (Pvt) Ltd., AIR 1972 Del 110
Mohori Bibee v Dharmodas Ghose(AIR 1903 PC 115)
Daulat Ram v. State of Punjab (AIR 1962 SC 1206)
Kedarnath Bhattacharji v. Gorie Mahomed (1887) [ILR 14 Cal 64]
Gujarat Maritime Board v. Larsen & Toubro Ltd. (2007) 14 SCC 692
Raja Dhruv Dev Chand v. Raja Harmohinder Singh (1968) 3 SCC 297
Manisha trading private Ltd. V. State of Delhi 2001 4 AD (Del)
M/S Galaxie Plywood Industries pvt.ltd. V. Vijay Kumar 2000 87 DLT 15
Continental Papers Ltd. vs Darshan Print Pack Ltd (2003) CriLJ 1410
State of Haryana v. Bhajan Lal 1992 supp(1)SCC 335
Madhavrao Jiwaji Rao Scindia v. Sambhajirao Chandrojirao Angre (1988)
M. Sundaram Pillai v. R. Shanmugam Pillai (AIR 2012 Mad 169)
Currie v. Misa (1875) LR 10 Ex 153

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STATEMENT OF JURISDICTION

The Petitioner most humbly and respectfully submits that the Hon’ble High Court of Madhya Pradesh,
Indore Bench has the requisite territorial and subject matter jurisdiction to entertain and adjudicate this
matter by virtue of its inherent power u/s 482 of The Code of Criminal Procedure, 1973. It is further
submitted that all procedural requirements have been adhered to in the prescribed manner. The present
memorandum sets forth the facts, contentions and arguments in the present case.
§ 482 Saving of inherent powers of High Court.
- Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make
such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the
process of any Court or otherwise to secure the ends of justice.

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STATEMENT OF FACTS

Mr. Mohan Lal (complainant) and Mr. Suresh Kumar (Accused) entered into an agreement on 6
November 2020 where the complainant gave Rs. 80,000/- on loan to the accused without interest.
According to the contract accused have to return the amount of loan i.e. Rs. 80,000/- within 2 months
and, if he fails to do it he will have to work at complainant’s commercial establishment for 30 days
without any remuneration as the penalty for delay in the repayment of the amount.
The accused issued the cheque and was received by the complainant after the stipulated time on 7
January 2021. The complainant submitted the cheque in bank on 28 March 2021 and it bounced because
of insufficient funds. The complainant asked the accused to refurnish the cheque along with fulfilling the
penalty clause. Accused in reply said that he is in deficiency of funds at the given moment and offered to
repay the amount in monthly installments of Rs. 800/- per month. Mr. Mohan Lal filed a complaint
before the Judicial Magistrate First Class, Indore on 12 February 2022, against Mr. Suresh Kumar under
section 138 of the Negotiable Instrument Act, 1881.
Magistrate summoned the accused vide his order on 3 June 2022 and fixed 28 July 2022 for the
appearance of the accused. Accused did not appear in the court on 28 July 2022. On 15 November
bailable warrant was issued by the court against him and he appeared in the court on 2 February 2023.
Complainant who was regularly attending the court proceedings, failed to appear on 20 March 2023.
The Magistrate dismissed the complaint in default of presence of the complainant.
The complainant filed an application for restoration of his complaint by stating that he mistakenly noted
wrong date and his absence was not intentional on 21 April 2023. The magistrate dismissed the
application on 11 June 2023. The complainant then filed a revision against the order of Magistrate and
was dismissed by Additional Session Judge, Indore on 12 September, 2023.
The Petitioner has filed a petition under section 482 Cr.P.C before the Hon’ble High Court of Madhya
Pradesh, Bench at Indore.

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STATEMENT OF ISSUES

1. Whether the agreement entered by the complainant and accused in lieu of the repayment of the loan
amount is legally valid?

2. Whether the ex-parte dismissal of the suit by Judicial Magistrate First Class is justified?

3. Whether the Hon’ble High Court has the jurisdiction to restore the complaint by setting aside the order
dated 20 March 2023 passed by the Judicial Magistrate First Class, Indore?

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SUMMARY OF ARGUMENTS

1. WHETHER THE AGREEMENT ENTERED BY THE COMPLAINANT AND ACCUSED IN LIEU OF THE
REPAYMENT OF THE LOAN AMOUNT IS LEGALLY VALID?

It is most humbly submitted before this Hon’ble Court that the agreement entered by the complainant
and accused in lieu of the repayment of the loan amount is legally valid as mentioned in the Indian
Contract Act section 10.

2. WHETHER THE EX-PARTE DISMISSAL OF THE SUIT BY JUDICIAL MAGISTRATE FIRST CLASS IS
JUSTIFIED?

It is most humbly submitted before this Hon’ble Court that the ex-parte dismissal of the suit by Judicial
Magistrate First Class with respect to the non-appearance of the complaint for one court hearing not
justified as per section 256 of The Code of Criminal Procedure, 1973.

3. WHETHER THE HON’BLE HIGH COURT HAS THE JURISDICTION TO RESTORE THE COMPLAINT BY
SETTING ASIDE THE ORDER DATED 20TH MARCH 2023 PASSED BY JUDICIAL MAGISTRATE FIRST

CLASS, INDORE?

The Council on behalf of Mr. Mohanlal (complainant) most humbly submits that hon’ble High Court has
the jurisdiction to restore the complaint by setting aside the order of Judicial Magistrate first class; dated
20 March 2023 under section 482 of Cr.P.C

482. Saving of inherent powers of High Court-- Nothing in this code shall be deemed to limit or affect
the inherent powers of High Court to make such orders as may be necessary to give effect to any order
under this code, or to prevent abuse of process of any Court or otherwise to secure the ends of justice'.
Hence, it becomes clear that with using this power Hon’ble High Court can deliver justice to the person
who hereby faced injustice during the process of trial.

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ARGUMENTS ADVANCED

3.1. ISSUE -1
It is humbly submitted before this Hon’ble Court that the agreement entered by the complainant and
accused in lieu of the repayment of the loan amount is legally valid as it is clear from the application of
section 10 of the Indian Contract Act, 1872. As per the facts of the case the Complainant had loaned an
amount of Rs. 80,000/- on 6 November 2020 (without interest) to the accused and he (accused) promised
to return the same within 2 months. The complainant and accused had entered into an agreement
regarding the aforementioned transaction on 6 November 2020. The terms of the agreement stated that if
the accused fails to return the loan amount of 80,000/- within the stipulated time, he shall be liable to
work at the complainant’s commercial establishment for the 30 days without any remuneration as the
penalty for delay in the repayment of the amount.
As per section 10 of Indian Contract act all agreements are contracts if they are made by the free
consent of parties competent to contract, for a lawful consideration and with a lawful object, and are not
hereby expressly declared to be void. The above section can be further broken down in the following
parts:

3.2. OFFER AND ACCEPTANCE:

The complainant made an offer to loan Rs 80,000 to the accused, and the accused wilfully accepted
the offer by agreeing to the terms of the same. In the case of Lalman Shukla v. Gauri Dutt (1913) 40
ALJ 489 , the court held that for a valid contract to exist, there must be a clear offer by one party and
an unequivocal acceptance by the other party. 1The Delhi High Court observed-"When there is
variance between the offer and acceptance even in respect of any material term, acceptance cannot
be said to be absolute and unqualified and the same will not result in the formation of a legal
contract."2

3.3. LAWFUL CONSIDERATION:

1
Lalman Shukla v. Gauri Dutt (1913) 40 ALJ 489
2
Union of India v. Uttam Singh Duggal and Co. (Pvt) Ltd., AIR 1972 Del 110

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The loan amount of Rs. 80,000 serves as lawful consideration for the contract while the promise to
repay the loan within the stipulated time constitutes the consideration by the accused and the two form
the basis of the contract. In the court case ruled that consideration must be something of value in the
eyes of the law and could be a benefit to the promisor.3 Further as per Section 2(d) in The Indian
Contract Act, 1872, when, at the desire of the promisor, the promisee or any other person has done or
abstained from doing, or does or abstains from doing, or promises to do or to abstain from doing,
something, such act or abstinence or promise is called a consideration for the promise.

3.4. LEGAL CAPACITY:

Though the facts are silent on the legal capacity but it is assumed that both parties involved are
presumably competent to enter into a contract, they are of sound mind and have attained the age of
majority. It was held by the privy council in Mohori Bibee v Dharmodas Ghose(AIR 1903 PC 115) that
a contract entered into by a minor shall be considered void.

3.5. FREE CONSENT:

Consent must be free from coercion, undue influence, fraud, misrepresentation, or mistake. There is no
indication of the following in the agreement between the complaint and the accused as per the facts of
the case. In the case of Lalman Shukla v. Gauri Dutt (1913) 40 ALJ 489, the court held that consent
obtained through fraud or misrepresentation renders the contract voidable. It underscored the importance
of free consent in contract formation. Further in case of Daulat Ram v. State of Punjab (AIR 1962 SC
1206) the court emphasized that consent must be free from coercion or undue influence. Any contract
obtained by coercion or undue influence is voidable at the option of the aggrieved party.

3.6. Lawful Object:

The contract's primary object, which is to facilitate a loan for the domestic needs of the accused, is
lawful. In Kedarnath Bhattacharji v. Gorie Mahomed (1887) [ILR 14 Cal 64] the court stated that for a
contract to be valid, its object must be lawful. If the object or consideration of a contract is illegal or
against public policy, the contract is void.

3
Currie v. Misa (1875) LR 10 Ex 153

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In the light of section 10 which is further supported by relevant case laws it is humbly submitted to the
honorable court that the agreement between the complaint and the accused is legally valid.
Further it is humbly submitted to the honorable court by the counsel that the accused should be held
guilty of breach of contract as per section 74 of the Indian Contract Act which states that, When a
contract has been broken, if a sum is named in the contract as the amount to be paid in case of such
breach, or if the contract contains any other stipulation by way of penalty, the party complaining of the
breach is entitled, whether or not actual damage or loss is proved to have been caused thereby, to receive
from the party who has broken the contract reasonable compensation not exceeding the amount so
named or, as the case may be, the penalty stipulated for.
In Gujarat Maritime Board v. Larsen & Toubro Ltd. (2007) 14 SCC 692 the Supreme Court emphasized
that the court has the discretion under Section 74 to award reasonable compensation for breach of
contract, irrespective of the sum specified in the contract as damages. The court reiterated that the
purpose of Section 74 is to ensure that the aggrieved party is adequately compensated for the loss
suffered due to the breach of the contract.
In Raja Dhruv Dev Chand v. Raja Harmohinder Singh (1968) 3 SCC 297,The Supreme Court reiterated
the principles underlying Section 74 and held that the court has the discretion to award reasonable
compensation for breach of contract. The court emphasized that the primary objective is to ensure that
the aggrieved party is adequately compensated for the loss suffered due to the breach.

In furtherance of the above argument as per the latest data by The Ministry of Statistics and Programme
Implementation under the government of India Average monthly wage / salary earnings for the year
2019-2020 of an Indian male living in urban city is 21,624.03. Therefore as per the following data, the
penalty for breach of contract which is non remuneration at the complaints commercial establishment for
30 days is not disproportionate to the actual loss suffered by the aggrieved party in fact the complaint is
at loss here.
Thus the counsel contends that the contract between the Mr. Mohan Lal (complaint) and Mr. Suresh
Kumar (accused) is valid contact as per the Indian Contract Act, 1872 as it covers all the relevant aspect
of the same.

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4. ISSUE- 2:

It is humbly submitted before this Hon’ble Court that the ex-parte dismissal of the suit by Judicial
Magistrate First Class with respect to the non-appearance of the complaint for one court hearing and
without the issue of summons to the complaint is not justified as per section 256 of The Code of
Criminal Procedure, 1973.
As per Section 256 in The Code of Criminal Procedure, 1973, sub section (1), If the summons has been
issued on complaint, and on the day appointed for the appearance of the accused, or any day subsequent
thereto to which the hearing may be adjourned, the complainant does not appear, the Magistrate shall
notwithstanding anything hereinbefore contained, acquit the accused, unless for some reason he thinks it
proper to adjourn the hearing of the case to some other day:
Provided that where the complainant is represented by a pleader or by the officer conducting the
prosecution or where the Magistrate is of opinion that the personal attendance of the complainant is not
necessary, the Magistrate may dispense with his attendance and proceed with the case.
As per the facts of the case the complaint was regularly attending the court proceedings but, on 20
March 2023 the case was called several times and nobody appeared from the complainant’s side. The
Magistrate, after marking the presence of accused, dismissed the complaint in default of presence of the
complainant, this dismissal of the complaint due to absence of the petitioner without issuing any
summons to him by the court is in contravention to section 256 of The Code of Criminal Procedure,
1973.
In the case of M/S Galaxie Plywood Industries pvt.ltd. V. Vijay Kumar 2000 87 DLT 15, The court
considered the certified copy of order sheets and absence of any court notice being served upon the
complaint on the date of dismissal, leading to the conclusion that the default in appearance was
primarily due to the wrong notice of the date, further the impugned order was set aside and the
complaint was restored to its original number with direction for further proceedings in accordance with
the law.
In the case of Manisha Trading Pvt. Ltd. v. State & Others 2001 4 AD (Del), the Delhi High Court set
aside the dismissal of a complaint by the Metropolitan Magistrate due to the absence of the complainant.
The court found that the complainant’s non-appearance was due to a bona fide mistake in noting the
date. Therefore, the court restored the complaint to its original number.
In the case of Continental Papers Ltd. vs Darshan Print Pack Ltd., the court ruled in favor of Continental
Papers Ltd. The court criticized the dismissal of the case at early hours of the day, acknowledging the

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chaotic traffic conditions and difficulties faced by parties in reaching the court on time. The court
emphasized that before dismissing a case due to non-appearance, it is expected to wait till late hours.
The petition by Continental Papers Ltd. was allowed.

Thus it is humbly submitted to the court in the light of section 256 of the Code of Criminal Procedure,
1973 and the supporting case laws that, Mr. Mohan Lal, was not issued a summon on his absence of the
court proceeding and therefore the process of law was not duly followed making the ex parte dismissal
of the suit of the petitioner by Judicial Magistrate First Class is not justified.

5. ISSUE - 3:

The Council on behalf of Mr. Mohanlal (complainant) most humbly submits that hon’ble High Court has
the jurisdiction to restore the complaint by setting aside the order of Judicial Magistrate first class; dated
20 March 2023 under section 482 of Cr.P.C which states -
‘482. Saving of inherent powers of High Court-- Nothing in this code shall be deemed to limit or
affect the inherent powers of High Court to make such orders as may be necessary to give effect to any
order under this code, or to prevent abuse of process of any Court or otherwise to secure the ends of
justice'. Hence, it becomes clear that with using this power Hon’ble High Court can deliver justice to the
person who hereby faced injustice during the process of trial.
It is humbly submitted before the Hon’ble Court that in the proposition it is given that after filing
complaint Mr. Suresh Kumar was not attending the proceedings even after receiving summons. Hence, a
bailable warrant was issued by the court against the accused on 15 th November 2022 then he appeared in
the court on 2 February 2023. Mr. Mohan Lal regularly attended the proceedings but was absent on 20th
March. The magistrate, after making the presence of accused dismissed the complaint in default of
presence of complainant. Mr. Mohanlal 20th April 2023 Filing application for restoration of his
complaint. By noting that he in advertently noted the date in his diary as 20th April 2023 instead of 20 th
March, 2023.He further also stated that the absence was not intentional, hence, his complaint be
restored. The magistrate did not appreciate his arguments and dismissed his application, 11th June 2023.
The counseling with due respect contends that the denial for restoration of the proceedings even after
giving the reasoning of absence, is not justified. The reasoning which was given by the complainant for
absence duly cleared that it was just a mistake and was not acted intentionally.

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Thus, the Hon’ble Court must restore the complaint by setting aside the order of Judicial Magistrate
First Class, Indore. The inherent powers conferred upon the High Court under section 482of Cr.P.C can
be used to prevent abuse of the process of the court or to secure the ends of justice. The Court also
enumerated specific instances where the High Court may intervene, such as cases where the allegations
are patently false or where there is an abuse of the process of the court.4

5.1. PRINCIPLE OF NATURAL JUSTICE

The two main Natural Justice Principles are as follows. 'Nemo judex in causa sua' is one of these two
principles. The prohibition against bias states that no one should be allowed to assess their own case.
"Audi alteram partem" refers to listening to the other side; nobody ought to be condemned without being
heard. The aim of this principle is a decision cannot be made until both parties have been heard. This
approach is to allow each party a chance to present their own defense. First of all, Audi alteram partem
translates to "hear the other side," "no man should be condemned unheard," or "before passing any
orders, both sides must be heard.
Madhavrao Jiwaji Rao Scindia v. Sambhajirao Chandrojirao Angre (1988): Here, the Supreme Court
held that the power under Section 482 CrPC can be exercised to prevent abuse of process of any court or
to secure the ends of justice. The Madras High Court held that the ex parte dismissal of a suit due to the
petitioner's absence from one court hearing was unjustified. The Court stressed the importance of giving
the petitioner an opportunity to explain their absence and set aside the dismissal if the petitioner can
show sufficient cause.
The Madras High Court ruled that it was improper to dismiss a lawsuit ex parte simply because the
petitioner missed one court date. The petitioner must be given a chance to justify their absence, and the
court emphasised that if the petitioner can provide sufficient justification, the dismissal should be
overturned.5
Thus, this is valid claim.

4
State of Haryana v. Bhajan Lal 1992 supp(1)SCC 335.
5
M. Sundaram Pillai V. R. Shanmugam Pillai AIR 2012 Mad 269

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PRAYER

Wherefore, in the light of the issues raised, arguments advanced and authorities cited, it is most humbly
and respectfully prayed before this Hon’ble High Court of Madhya Pradesh, Indore Bench to adjudge
and declare that:

1. The agreement entered by the Petitioner (complainant) and Respondent (accused) in lieu of the
repayment of the loan amount is legally valid.

2. The ex-parte dismissal of the suit by Judicial Magistrate First Class was not justified

3. To set aside the order dated 20 March 2023 passed by the Judicial Magistrate First Class, Indore

AND/OR

Pass any other order or orders as the Hon’ble Court may deem fit, in the light of Justice, Equity and
Good Conscience.

All of which is most humbly submitted and respectfully submitted.

Date: - 17/03/2024 Sd/-

Place: - Indore On Behalf of MOHAN LAL

Counsel for the Petitioner

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