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Indian Laws - Case Laws
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- 2020 (1) TMI 798
Dishonor of cheque - Responsibility of Director not engaged in day to day affair of the company - Director having majority shareholding - offence u/s 138 of the Negotiable Instruments Act, 1881 - HELD THAT:- As per Section 141(1) of the N.I. Act, the person, who was incharge of and responsible to the Company for the conduct of the business of the Company, as well as the Company, shall be deemed to be guilty of the offence - In the present, although the petitioner is the Director of the Company, she is not responsible for the day to day affairs of the Company. The complainant in his complaint has not alleged the specific role against the petitioner, to the fact that how she is responsible for issuance of the cheque. It is also perused that even the cheque has not been signed by the petitioner. Thus, as per this section, the person, who was....... + More
- 2020 (1) TMI 747
Leave to appeal - Dishonor of Cheque - friendly loan - existence of legally enforceable debt or not - offence u/s 138 of NI Act - the case of complainant/petitioner is that she had advanced loan of ₹ 3,15,000/- to accused/respondent no.2 but the same has not been supported by any document to prove that the loan was actually advanced - HELD THAT:- It is not in dispute that loan was given in the year 2012. The petitioner has also stated in her complaint Ex.CW1/6 in para 5 that “the accused had issued two other cheques out of which cheque for ₹ 5,000/- was honoured on 08.08.2012 and another of ₹ 15,000/- was dishonoured on 28.12.2012”. She has also stated in her cross-examination as CW-1 that “I had received total three cheques from the accused. The first cheque was cleared on 08.08.2012 and second cheque ....... + More
- 2020 (1) TMI 746
Waiver of pre-deposit - Direction to deposit 50% of the amount of debt due - applicability of Section 18(1) of the SARFAESI Act - It is a conceded case of the respondents that none of the eventualities exist as the amount due to the Bank has been recovered - HELD THAT:- Section 18(1) of the SARFAESI Act clearly stipulates that any person aggrieved by any order made by the DRT under Section 17, may prefer an appeal to DRAT within 30 days from the date of receipt of the order of the DRT. The second proviso to Section 18(1) stipulates that no appeal shall be entertained by the DRAT unless the borrower has deposited with it 50% of the amount of debt due from him, as claimed by the secured creditor or as determined by the DRT, whichever is less. The third proviso to Section 18(1) gives a discretion to DRAT to reduce the aforesaid amount to not....... + More
- 2020 (1) TMI 745
Grant of Regular Bail - Section 437/439 of Code of Criminal Procedure, 1973 - flight risk - tampering evidence - influencing witnesses - it is submitted that the entire case against the Applicant is completely false and fabricated - HELD THAT:- The Applicant has no role to play in the transactions alleged in the FIR, the complaint dated 27.12.2019 and/or the verification memo dated 27.12.2019/28.12.2019. As stated above, he was illegally detained on 31.12.2019 while he was on his way to the airport and was thereafter forced to carry out various acts against his wishes and under pressure and coercion of the CBI officials. The Applicant has not demanded or accepted any bribe amount, nor has made any attempt to do so. Even as per the case of CBI in the remand Application dated 02.01.2020, the Applicant has not handled the tainted money at an....... + More
- 2020 (1) TMI 731
Procedure for recovery of tax - contention urged by the petitioner is that as per the provisions contained in the Second Schedule to the Income Tax Act as made out in the procedure for recovery of tax, (the Rules applicable for recovery under the SARFAESI Act), the 1st respondent cannot conduct a resale without repaying the amount remitted by the petitioner etc - HELD THAT:- A mere glance of the provisions contained in Rule 58 of the Rules in terms of the Second Schedule to the Income Tax Act, which deals with the procedure for recovery of tax (which has been made available for recovery under SARFAESI Act) as well as Rule 9(5) of the Security Interest (Enforcement) Rules, 2002 framed under the enabling provisions contained in SARFAESI Act would clearly mandate that in default of payment by the purchaser within the period mentioned in the ....... + More
- 2020 (1) TMI 574
Dishonor of Cheque - insufficiency of funds - legally enforceable debt or other liability or not - rebuttal of presumption - section 139 of NI Act - HELD THAT:- The standard of proof for rebutting the presumption is that of preponderance of probabilities and not beyond reasonable doubt. To rebut the presumption, it is open for the accused to rely on evidence led by him or accused can also rely on the materials submitted by the complainant in order to raise a probable defence. Inference of preponderance of probabilities can be drawn not only from the materials brought on record by the parties but also by reference to the circumstances upon which they rely. It is not necessary for the accused to come in the witness box in support of his defence because Section 139 imposed an evidentiary burden and not a persuasive burden. The subject matter....... + More
- 2020 (1) TMI 553
Dishonor of Cheque - insufficiency of funds - rebuttal of presumption - section 138 of the N.I. Act - trial court on the basis of the evidence on record has drawn the presumption under section 139 of the N.I. Act that the accused had issued the said cheque in favour of the complainant for discharge of his debt and liability - whether the accused has been able to rebut the presumption as available under section 139 of the N.I. Act in respect of issuance of the cheque in question? HELD THAT:-All the important facts emanating from evidence, have not all been dealt and to me, it appears that the courts below have remained under an erroneous impression that the presumption has to be rebutted by the accused only by leading evidence from his side. The view taken that the accused having not responding in that light, right from the time of demand ....... + More
- 2020 (1) TMI 551
Dishonor of cheque - the notice was issued against the accused and he did not plead guilty and claimed trial - grounds urged in the appeal are that the learned Magistrate failed to consider both oral and documentary evidence on record - Drawing of presumption - principles of natural justice - Whether the Court below has committed an error in dismissing the complaint in coming to the conclusion that the transaction was not proved by the complainant? - HELD THAT:- The learned counsel appearing for the complainant relied upon the document Ex.P5 and also bank statement produced by the complainant which shows the address as shop No.5, Raghu buildings behind Bharat Motors, Banaswadi, Bengaluru. But the question before this Court is that when the VAT certificate produced as Ex.D4 discloses the commencement of business and the business address, t....... + More
- 2020 (1) TMI 412
Dishonor of Cheque - section 138 of NI Act - cheque was issued in discharge of any debt or liability of the company or not - HELD THAT:- In the instant case, the respondent clearly had a liability. As observed above, there was an earlier adjudication which led to the conviction of the respondent accused. Thus there was adjudication of liability of the respondent accused. While the appeal was pending, the matter was settled in the Lok Adalat in acknowledgment of liability of the accused respondent to the appellant complainant - The cheque issued pursuant to the order of the Lok Adalat, was also dishonoured. This clearly gave rise to afresh cause of action under Section 138 of the Negotiable Instruments Act. Every award of the Lok Adalat is, as held in K.N. Govindan Kutty Menon's case [2011 (11) TMI 783 - SUPREME COURT], deemed to be de....... + More
- 2020 (1) TMI 390
Dishonor of cheque - Section 138 of the Negotiable Instruments Act, 1881 - issue raised by the petitioner in the present petition cannot be appreciated at this stage as the same can only be adjudicated at the time of trial - HELD THAT:- It is well settled that for the purpose of quashing of a complaint, the High Court cannot look into the defence of the accused. The Court is only required to see whether on the basis of the averments made in the complaint and the relevant particulars produced by the Complainant, there are grounds for proceeding against the accused. Inherent power of quashing criminal proceedings should be exercised very sparingly and with great circumspection. It does not confer on the court to act arbitrarily as per its own whims and caprice. The basic law is that the complaint under Section 138 of Negotiable Instrument A....... + More
- 2020 (1) TMI 388
Dishonor of Cheque - insufficiency of funds - Section 138 of the Negotiable Instruments Act - time limitation - HELD THAT:- The documents on record, which show that the cheque was presented in the Bank, which was dishonoured and then the stipulated time, as required under law on 22.12.2014 with the endorsement “Insufficient funds” thereafter, notice was issued to the respondent within two days through Bank, which is Ex.CW1/D, in the learned Court below, on the address of the respondent, which is the same address and now in the present petition, endorsement on the same was unclaimed and before that intimation was left by the addressee by the postal authority. In these circumstances, the presumption is that it was received by the respondent and the same was returned to the addressee by the Post Office on 24.12.2014 and it could ....... + More
- 2020 (1) TMI 387
Dishonor of Cheque - Section 138 of the Negotiable Instruments Act - rebuttal of presumptions - HELD THAT:- It appears that admittedly the cheques in question were issued by the petitioner in favour of the complainant. It is also an admitted fact that all the cheques were dishonoured when the complainant presented the same for encashment. In the present case the materials placed on record show that both the Learned Courts below came to the concurrent findings that the petitioner issued the cheques in question in discharge of his liability to repay the loan as par the loan agreement. Issuance of cheques in question is an admitted fact. Defence was taken by the petitioner that those cheques were issued by him for consultancy which the complainant was required to provide him. The said consultancy was not provided to him. But the petitioner h....... + More
- 2020 (1) TMI 386
Dishonor of Cheque - insufficiency of funds - cheque not issued towards any debt - allegation that accused persons made mischief by issuing cheque for which they committed an offence under the provision of Negotiable Instrument Act, 1881 - HELD THAT:- As per complaint the cheque was not issued towards any consideration or to clear of any debt or liability. As there was no deed / agreement for sale executed as required under law, the payment for consideration does not arise and in that view of the matter the requirement of Section 138 N.I. Act, i.e., money paid to discharge in whole or in part of any debt or other liability, is found absent. As the ingredients of the offence U/s.138 N.I. Act are lacking, taking of cognizance for that offence by the learned S.D.J.M., Bhubaneswar is not sustainable in the eye of law, hence, the same is liable to be quashed. The proceeding u/s138 of the Negotiable Instruments Act, 1881 is quashed.
- 2020 (1) TMI 385
Dishonor of cheque - Legality of Amendment to Article 142(2) of the Negotiable Instruments Act - challenge made primarily on the ground that the amendment goes completely contrary to the judgment of the Honourable Supreme Court in DASHRATH RUPSINGH RATHOD VERSUS STATE OF MAHARASHTRA & ANOTHER [2014 (8) TMI 417 - SUPREME COURT] where it was held that Once the cause of action accrues to the complainant, the jurisdiction of the Court to try the case will be determined by reference to the place where the cheque is dishonoured. HELD THAT:- By virtue of the said amendment, the entire basis of the judgment of Dashrath Rupsingh Rathod has been removed. The power of the Legislature to take away the basis of a judgment by making amendments is well settled. It is trite law that the Legislature can take away the basis of the judgment of a judicia....... + More
- 2020 (1) TMI 383
Dishonor of cheque - Section 138 of the Negotiable Instruments Act - the cheques, which were dishonoured, were given by way of security - suppression of fact by the complainant - HELD THAT:- This Court finds that long standing business transaction and inability of refunding a loan has been given a color of criminal offence of cheating punishable under Section 420 of the Indian Penal Code. A breach of trust with mens rea gives rise to a criminal prosecution. In this case when I go through the evidence before charge of the complainant and the documents of the complainant, I find that there were long standing business transactions between the parties. Since 2011 money was advanced by the complainant and his family members to the accused and the complainant witness admits that money was also transferred from the account of the accused to the ....... + More
- 2020 (1) TMI 381
Dishonor of cheque - insufficiency of funds - acquittal for the offence - section 138 of the Negotiable Instruments Act - existence of loan - existence of legally enforceable debt or not - whether the non-production of any licence for providing loan is fatal to the complainant's case? - whether there was existence of any legally recoverable debt and how it has to be considered? HELD THAT:- The issue is covered in the case of H. Narasimha Rao. Vs. Venkataram [2006 (10) TMI 504 - KARNATAKA HIGH COURT] where it was held that once the cheque is proved that the same was issued with reference to any debt, even if it is a time barred debt, in such an eventuality such stand is not available to the accused that there is no existence of any debt or liability. Therefore, on the said ground, the acquittal recorded by the trial court is not proper....... + More
- 2020 (1) TMI 380
Dishonor of Cheque - section 138 of NI Act - territorial jurisdiction - It is the submission of the learned counsel for the petitioner that as the cheque has been drawn on M/s. Standard Chartered Bank, Sharjah Branch, UAE, the dishonour of same had occurred outside the territory of India and as such the Courts in Delhi have no territorial jurisdiction - HELD THAT:- The Cr.P.C. is no longer res integra and the same has been decided long back in the decision rendered by the Supreme Court in M/S BRIDGESTONE INDIA PVT. LTD. VERSUS INDERPAL SINGH [2015 (12) TMI 777 - SUPREME COURT] where it was held that the Judicial Magistrate, First Class, Indore, would have the territorial jurisdiction to take cognizance of the proceedings initiated by the appellant under Section 138 of the Negotiable Instruments Act, 1881, after the promulgation of the Neg....... + More
- 2020 (1) TMI 340
Dishonor of Cheque - offence punishable under Section 138 of the Negotiable Instruments Act, 1881 - vicarious liability on the petitioner or not - HELD THAT:- The petitioner being an Independent and a Non-Executive Director, in the absence of any specific role attributed against the petitioner for his active participation in the day to day affairs of the company and of taking all decisions of the company, where the petitioner was not a signatory to the cheques in question, vicarious liability cannot be fastened on the petitioner in the absence of any specific role attributed to him, in as much as, the contentions that have been sought to be raised during the course of the arguments and in the affidavit in reply to the petition on behalf of the respondent in relation to the petitioner being in a Key Managerial Person and the petitioner hav....... + More
- 2020 (1) TMI 264
Jurisdiction - powers to make interim orders - whether the Gujarat Public Works Contract Disputes Arbitration Tribunal constituted under Section 3 of the Gujarat Public Works Contracts Disputes Arbitration Tribunal Act, 1992 has jurisdiction to make interim orders in terms of Section 17 of the Arbitration and Conciliation Act, 1996? HELD THAT:- The appropriate remedy for the contractor was to approach the arbitral tribunal constituted under the Gujarat Act since that would have jurisdiction to decide whether the notice issued by the Government was a legal notice and whether the Government was, in fact, entitled to recover any amount from the contractor - It would also be within the jurisdiction of the Tribunal to decide whether the contractor has made out a prima facie case for grant of interim relief. We are purposely not going into the ....... + More
- 2020 (1) TMI 263
Dishonor of Cheque - insufficiency of funds - Appellate Court has suspended the substantive sentence of the appellants subject to deposit 25% of the compensation awarded by the trial court in favour of the complainant - HELD THAT:- This Court having already upheld the order of the Appellate Court dated 01.12.2018 suspending the sentence subject to deposit 25% of the amount of compensation any submission questioning the order of the Appellate Court directing the suspension of sentence subject to deposit of 25% of the compensation amount needs no further consideration. By dismissal of the criminal appeals of the appellants on 29.05.2019 by this Court the challenge stands repelled and cannot be allowed to be reopened. The second round of litigation which was initiated by the appellant by filing application under Section 482 Cr.P.C. was again....... + More
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