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Indian Laws - Case Laws
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- 2021 (5) TMI 130 - MAHARASHTRA REAL ESTATE APPELLATE TRIBUNAL, MUMBAI
Refund of booking amount to allottees - Allottees have claimed relief on the basis of clause 18 of "model agreement" for sale as given under rules of RERA - HELD THAT:- In the instant case the transaction of sale and purchase of the flat is cancelled at initial stage. Allot-tees merely booked the flat and paid some amount towards booking and executed letter for request of reservation of the flat in printed form. Thereafter there is no progress in the transaction and neither allotment letter nor confirmation letter is issued by Promoter. Agreement for sale is not executed between the parties. Parties never reached to the stage of executing agreement for sale. There was no attempt to execute agreement on the part of either party. In such circumstances, Allottees cannot claim refund on the basis of binding effect at clause (18) of ....... + More
- 2021 (5) TMI 55 - KARNATAKA HIGH COURT
Dishonor of Cheque - main grounds urged in the petition is that the petitioner inspite of serving the sentence for a period of one year in view of the order passed by this Court, the petitioner has been detained in the jail, which is erroneous, arbitrary and unconstitutional - HELD THAT:- The Apex Court in V.K.Bansal’s case [2013 (8) TMI 488 - SUPREME COURT] discussed with regard to Section 427(1) of Cr.P.C. which stipulates the discretionary power of the Court to direct sentence to run concurrently and also discussed with regard to when it should be exercised. It is further held that no straight jacket approach can be laid down. However, only substantive sentence can be directed to run concurrently and sentence awarded in default of payment of fine/compensation cannot be directed to run concurrently. In the present case, the petiti....... + More
- 2021 (5) TMI 49 - HIMACHAL PRADESH HIGH COURT
Dishonor of Cheque - insufficiency of funds - acquittal of the accused - compounding of the offence - HELD THAT:- The respondent bank has received ₹ 8,00,000/- under one time settlement, this Court sees no impediment in accepting the prayer made on behalf of the petitioner for compounding of offence while exercising power under Section 147 of the Act as well as in terms of guidelines issued by the Hon’ble Apex Court in Damodar S. Prabhu V. Sayed Babalal H. [2010 (5) TMI 380 - SUPREME COURT], wherein it has been categorically held that court, while exercising power under Section 147 of the Act, can proceed to compound the offence even after recording of conviction by the courts below. The present matter is ordered to be compounded and impugned judgments of conviction and sentence by the courts below are quashed and set-aside - the petitioner-accused is acquitted of the charge framed against him under Section 138 of the Act - petition allowed.
- 2021 (5) TMI 48 - HIMACHAL PRADESH HIGH COURT
Dishonor of Cheque - invocation of revisional jurisdiction under Section 397 read with Section 401 of the Code of Criminal Procedure - HELD THAT:- The jurisprudence behind the N.I. Act is that the business transactions are honored. The legislative intention is not to send the people to suffer incarceration because their cheque was bounced. These proceedings are to execute the recovery of cheque amount by showing teeth of penalty loss - Given the judgment passed by Hon'ble Supreme Court of India in Damodar S. Prabhu v Sayed Babalal, [2010 (5) TMI 380 - SUPREME COURT], the law is well settled that when the entire money is paid, then the complainant cannot have any objection to such compromise, and 15% of the cheque amount is to be paid by the accused to the Himachal Pradesh State Legal Services Authority. This Court has inherent powers ....... + More
- 2021 (4) TMI 1236 - TRIPURA HIGH COURT
Dishonor of Cheque - insufficiency of funds - opportunity of hearing provided or not - Section 138 of NI Act - HELD THAT:- Petitioner filed the said petition dated 17/11/2015 in the trial court after the petitioner was examined under Section 313 Cr.P.C. and the case was listed for arguments. The trial court vide order dated 26/11/2015 disposed the petition holding that adequate opportunity was provided to the petitioner to rebut the case by adducing his own evidence and it would not be proper to turn back the clock without any justifiable ground. Section 243 Cr.P.C. provides that if the accused in a criminal trial who has entered upon his defence applies to the court for the purpose of examination or cross examination, or the production of any document or other thing, the magistrate shall issue such process unless he considers that such a....... + More
- 2021 (4) TMI 1216 - DELHI HIGH COURT
Grant of regular bail - Smuggling - Heroine - Cocaine - Methaempthaine - Service of valid notice or not - HELD THAT:- Notice U/s 50 of the NDPS Act is a defective notice, it requires deep scrutiny of the statement of the witnesses and the documents and at the stage of bail, it would not be proper to minutely analyze the statement of the prosecution witnesses and the documents and in depth analysis of the case of the prosecution is not to be undertaken as it might prejudice the case of either of the parties. The question as to whether the petitioner and his co-accused were having common intention is also to be seen during the course of trial. The allegations against the petitioner are that of dealing with the commercial quantity of the contraband and therefore, rigors of Section 37 NDPS Act are applicable. In the present case, there is not....... + More
- 2021 (4) TMI 1113 - SUPREME COURT
Concealment of documents - false statements - in what circumstances and categories of cases, a criminal proceeding may be quashed either in exercise of the extraordinary powers of the High Court Under Article 226 of the Constitution, or in the exercise of the inherent powers of the High Court Under Section 482 Code of Criminal Procedure? - HELD THAT:- It is settled that the exercise of inherent power of the High Court is an extraordinary power which has to be exercised with great care and circumspection before embarking to scrutinise the complaint/FIR/charge-sheet in deciding whether the case is the rarest of rare case, to scuttle the prosecution at its inception. The issue involved in the matter under consideration is not a case in which the criminal trial should have been short-circuited. The High Court was not justified in quashing the....... + More
- 2021 (4) TMI 1106 - JAMMU & KASHMIR HIGH COURT
Dishonor of Cheque - joint complaint by two complainants - Section 138 read with Section 142 of NI Act, allows for such joint complaints or not - HELD THAT:- From the legal position enunciated by various High Courts in reference to Section 200 of Cr. P. C, a joint complaint by two or more person against an accused is clearly not maintainable - reliance may be placed in the case of Parijanashram Swamiji vs. Kailaje [1985 (11) TMI 242 - KARNATAKA HIGH COURT]. Whether what is held by various High Courts with reference to Section 200 of Cr. P. C is applicable to the complaints filed under Chapter XVII of the Act? - HELD THAT:- The reference to the complainant as a "person" in Section 138 of the Act, prima facie, indicates that Section 138 too envisages a complaint by a single person. Similarly, if we look at the provisions of Sectio....... + More
- 2021 (4) TMI 1058 - DELHI HIGH COURT
Availability of beds for COVID patients - availability of medical Oxygen in the NCT of Delhi - Efficient usage of Oxygen - testing facilities for Covid-19 through the RT-PCR test - critical medicines required for the treatment of serious Covid-19 patients falling in short supply - Wastages of vaccine. Availability of beds for COVID patients - HELD THAT:- Ms.Roli Khare, Director, Ministry of Health and Family Welfare has stated that the Central Government is endeavoring to make more beds available. She states that presently the hospitals of the Central Government are occupied by non-covid patients in need of critical care, such as patients who require dialysis, or suffering from cancer and other serious disease. Considering the fact that the number of COVID patients, who are now needing hospitals if for greater than the numbers which were ....... + More
- 2021 (4) TMI 1056 - SUPREME COURT
Territorial Jurisdiction - Forum for Arbitration outside India - Foreign award - two companies incorporated in India can choose a forum for arbitration outside India or not - award made at forum outside India, is “foreign award” under Part II of the Arbitration and Conciliation Act, 1996 or not - enforceabillity of such award. Seat of the arbitral proceedings in the present case - HELD THAT:- Clause 6 of the settlement agreement extracted above would show that arbitration is to be resolved “in Zurich” in accordance with the Rules of Conciliation and Arbitration of the ICC. In similar circumstances, in MANKASTU IMPEX PRIVATE LIMITED VERSUS AIRVISUAL LIMITED [2020 (3) TMI 302 - SUPREME COURT], where disputes were to be resolved by arbitration “administered in Hong Kong”, the Court concluded that On a plai....... + More
- 2021 (4) TMI 982 - SUPREME COURT
Fabricating false deed of agreement for sale for the purpose of being shielded from legal action in the disproportionate assets case - seizure of currency in addition to jewellery and property papers - assets disproportionate to the Appellant’s known sources of income - Section 195(1)(b) of the Code of Criminal Procedure, 1973 - HELD THAT:- In the present case, the allegation against Accused Nos. 2 and 3 is that they colluded with Appellant/Accused No. 1 to create a false sale deed, and gave false explanation of escrow arrangement amongst the three parties, to justify how the seized currency came to be in the Appellant’s possession. This was done to exonerate the Appellant/Accused No. 1 and recover the seized currency at the stage of investigation itself, which is deemed to be “a stage of a judicial proceeding” und....... + More
- 2021 (4) TMI 926 - DELHI HIGH COURT
Grant of regular bail - Recovery of pseudoephedrine hydrochloride from her baggage - section 67 of NDPS Act - HELD THAT:- The substance alleged to have been recovered from the petitioner/accused is 19.3 Kg. of pseudoephedrine hydrochloride which is a controlled substance. It has been rightly submitted by the Ld. counsel for the petitioner/accused that it is neither a narcotic drug nor a psychotropic substance under the NDPS Act. The alleged offences are not punishable with death or imprisonment for life. The offence falling U/s 9A r/w section 25A of the NDPS Act is punishable with imprisonment which may extend to 10 years and also fine which may also extend to ₹ 1 Lakh and the bar of Section 37 is not attracted in the present case as the substance recovered is a controlled substance within the meaning of Section 2 (viid) of the Act........ + More
- 2021 (4) TMI 925 - DELHI HIGH COURT
Grant of Regular Bail - 65 pellets/capsules allegedly recovered from the stomach of petitioner - instruction 1/88 dated 15.03.1988 of Narcotic Control Bureau - non-compliance of Section 50 of NDPS Act - HELD THAT:- It has been categorically stated in the complaint in question that notice under Section 50 of the NDPS Act was issued to the accused Bobby Collins Anagor by Sh. B.L.Bairwa, IO, NCB and he was also explained of his legal rights that if he desires his search can be conducted before a Magistrate or a Gazetted officer to which he denied and also wrote the same on the Notice under Section 50 of the NDPS Act. It is further noted that Sh.CSK Singh, IO offered their personal search to petitioner, to which also he refused. Thereafter, petitioner was taken to the CISF room where his baggage was physically examined but nothing was recover....... + More
- 2021 (4) TMI 919 - KARNATAKA HIGH COURT
Maintainability of petition - Public Interest Litigation - constitution of multi-disciplinary investigation team to investigate into the alleged breach of the provisions of the Reserve Bank of India Act, 1934, (RBI Act), the Income Tax Act, 1961, (IT Act) the Securities and Exchange Board of India Act, 1992 - HELD THAT:- This Court, on a closure scrutiny of the assertions and references in this petition and in the writ petition in INDIA AWAKE FOR TRANSPARENCY SHRISTHI CRESCENDO VERSUS UNION OF INDIA, THE DIRECTOR ENFORCEMENT DIRECTORATE, CHAIRMAN SECURITIES AND EXCHANGE BOARD OF INDIA, GOVERNOR RESERVE BANK OF INDIA, CHAIRMAN CENTRAL BOARD OF DIRECT TAXES, MR AH PREMJI, M/S HASHAM INVESTMENT AND TRADING COMPANY PRIVATE LIMITED [2020 (10) TMI 1239 - KARNATAKA HIGH COURT] is of the considered view that the petitioner cannot be permitted to ....... + More
- 2021 (4) TMI 841 - SUPREME COURT
Prevention from Abuse of Court Processing - Role of Lower Judiciary - misuse of own processes in a judgement - Frivolous Litigation - physical altercation that took place between the Appellants, and the Respondent No. 2 and his wife - HELD THAT:- It is a settled canon of law that this Court has inherent powers to prevent the abuse of its own processes, that this Court shall not suffer a litigant utilising the institution of justice for unjust means. Thus, it would be only proper for this Court to deny any relief to a litigant who attempts to pollute the stream of justice by coming to it with his unclean hands. Similarly, a litigant pursuing frivolous and vexatious proceedings cannot claim unlimited right upon court time and public money to achieve his ends. This Court’s inherent powers under Article 142 of the Constitution to do &ls....... + More
- 2021 (4) TMI 784 - GAUHATI HIGH COURT
Dishonor of Cheque - acquittal of the accused - liability to pay exist or not/ enforceable debt or not - cheque issued on force and threat or not - Section 138 of the N.I. Act - HELD THAT:- The cheque vide Ext.1 was admittedly drawn by D.W.1, the accused/ respondent No.1 for payment of an amount of ₹ 1,15,000/-, which was returned dishonoured by the Union Bank of India, (U.B.I.) Tinsukia Branch to the complainant/ appellant vide Ext.2, the letter and Ext.3, the bank note. Whether the cheque vide Ext.1 was issued in discharge of a debt/ liability of the accused/ respondent No.1? - HELD THAT:- There is no denying the fact that admittedly the accused/ respondent No.1 issued the cheque without the name of the payee, which the complainant/ appellant (payee) himself filled up and presented in bank for encashment. The evidence shows that t....... + More
- 2021 (4) TMI 780 - CALCUTTA HIGH COURT
Issuance of Duplicate share certificates - original share certificates were misplaced - section 420/406 of the Penal Code - HELD THAT:- In the case in hand, the allegations made against the accused petitioners are bereft of any intention of cheating or misappropriation at the inception of the transaction. The equity shares were admittedly issued against consideration and loss or misplacement of such shares by the opposite party is a subsequent event which was not contemplated by the parties at the time of issuance of the shares. No prima facie case of initial deception has been made out and under no stretch of imagination can it be held that the petitioners acted with criminal intent at the inception on an anticipation that the shares would be misplaced at a subsequent stage. Even if it is held that duplicate share certificates were delib....... + More
- 2021 (4) TMI 749 - KERALA HIGH COURT
Rejection of registration of a partnership firm constituted by the petitioner - whether LLP can be treated as a person which can be permitted to form a partnership with an individual? - HELD THAT:- In the present case an individual agreed with an LLP to share the profits of the business. LLP is a body corporate, independent legal entity having a common seal and perpetual succession, capable of suing and of being sued. Once a partnership is formed the LLP, which is a partner would have to abide by the partnership Act. The respondent's objection is based on the liability of the partners of LLP, stating that the same is confined to the terms in the agreement - The liability of partners of LLP and liability of the LLP as a partner under the Partnership Act would be different. The liability of partners in an LLP cannot have any relevance w....... + More
- 2021 (4) TMI 748 - KERALA HIGH COURT
Dishonor of Cheque - correctness of the finding of acquittal - rebuttal of presumptions - Sections 118 and 139 of Negotiable Instruments Act - HELD THAT:- It is the settled proposition of law that once the execution of the document is admitted or proved, the complainant is entitle to draw the presumptions under Sections 118 and 139 of the Act. In the decision reported in Bir Singh v. Mukesh Kumar [2019 (2) TMI 547 - SUPREME COURT]. The Hon'ble Supreme Court has held that if a signed blank cheque is voluntarily presented to a payee, towards some payment, the payee may fill up the amount and other particulars and itself would not invalidate the cheque - Thus after admitting issuance of Ext. P2 cheque, and having regard to the circumstances led to the issue of the instrument, the first respondent is estopped from taking contentions. Much....... + More
- 2021 (4) TMI 740 - KARNATAKA HIGH COURT
Dishonor of Cheque - service of notice - legal notice sent, returned as claimed - acquittal of accused - rebuttal of presumption - HELD THAT:- The postal cover sent through RPAD returned as not claimed does not mean due service of notice. Even during the course of cross-examination of P.W.1, nothing has been elicited regarding service of notice. When the appellant-complainant has not sent the legal notice to the respondent-accused under certificate of posting, there is no presumption of due service of notice to the respondent-accused. It is pertinent to note that the respondent-accused has not placed rebuttal evidence to prove that the notice was not sent to the correct address and the respondent-accused was not working at the address shown in the envelope sent through legal notice. Ex.P-12 is the legal notice postal cover, the address sh....... + More
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