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Indian Laws - Case Laws
Showing 1 to 20 of 89 Records
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2018 (8) TMI 2153 - SIKKIM HIGH COURT
Dishonour of Cheque - acquittal of the Respondent of the offence - appellant failed to bring home proof of the existence of a legally recoverable debt or other liability for which the cheque was issued by the Respondent/Accused - rebuttal of presumption - HELD THAT:- Section 138 of the NI Act provides that for a dishonoured cheque the drawer shall be liable for conviction if the demand is not met within 15(fifteen) days of the receipt of notice. If the cheque amount is paid within the above period or before the complaint is filed, the legal liability under Section 138 of the NI Act, ceases. It was argued by the Respondent that the dishonoured cheque by itself does not give rise to cause of action and the Respondent ought to be afforded an opportunity to remedy his error. Perusal of the records nowhere indicates any such effort on the part of the Respondent to have acted in compliance of this provision to prevent prosecution. Despite opportunity afforded to the Respondent during the cross-examination of the Appellant to disprove the Appellant’s case, no contrary evidence whatsoever emerged to that effect nor did he testify despite opportunity afforded to him.
Section 139 of the NI Act provides that unless the contrary is proved, the Court shall presume that the holder of a cheque received the cheque of the nature referred to in Section 139 for the discharge, in whole or in part of any debt or other liability. It would appear that the presumption under Section 139 of the NI Act is an extension of the presumption under Section 118(a) of the NI Act which provides that the Court shall presume a negotiable instrument to be one for consideration. If the negotiable instrument happens to be a cheque, Section 139 raises a further presumption that the holder of the cheque received the cheque in discharge in whole or in part of any debt or other liability.
Having perused the observations of the learned Trial Court, it may be reasoned that obviously there would be no evidence of an oral agreement by simple virtue of the fact that it was an oral agreement. Despite opportunity afforded to the Respondent, the fact of such oral agreement between the parties was not decimated during cross examination. The reasoning that the agreement is void for allegedly being devoid of consideration from the Complainant but was merely a unilateral payment from the Accused is also unclear. Although, the learned Trial Court was of the opinion that there is an existence of presumption under Section 118(a) of the NI Act which can be rebutted, he has failed to indicate how the Respondent has rebutted the presumption.
The issuance of Exhibit-1 as already explained leads to the irrevocable conclusion of acceptance of liability. The reasoning of the learned Trial Court that the repayment of Rs.1,00,000/- only, by the Respondent during the pendency of the trial can amount to an evidence of conduct but it would not suffice to raise a presumption under Section 139 of the NI Act does not impress.
The Appellant has proved his case - Respondent is convicted of the offence under Section 138 of the NI Act - impugned Judgment is set aside - Appeal allowed.
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2018 (8) TMI 2149 - SUPREME COURT
Government and the BDA had not taken any steps to issue a final notification or to develop the land for the last 5 years - BDA refused to give permission to develop the land on the ground of preliminary notification Under Section 17 of the BDA Act - right to enjoy the property has been taken away without finalizing the acquisition - HELD THAT:- This Court has emphasized that the primary object of the BDA Act is to carry out planned development. The State Act has provided its own scheme. The time constraints of the land acquisition are not applicable to the BDA Act. Making applicable the time frame of Section 11A of LA Act would debilitate very object of the BDA Act. It is apparent that the decision of the Single Judge as well as the Division Bench is directly juxtaposed to the decision of Five Judge Bench of this Court in OFFSHORE HOLDINGS PVT. LTD. VERSUS BANGALORE DEVELOPMENT AUTHORITY & ORS. [2011 (1) TMI 1322 - SUPREME COURT] in which precisely the question involved in the instant cases had been dealt with. By indirect method by making applicable the time period of two years of 11A of LA Act mandate of BDA Act has been violated. However, it is shocking that various decisions have been taken into consideration particularly by the Single Judge, however, whereas the decision that has set the controversy at rest, has not even been noticed even by the Single Judge or by the Division Bench.
It is apparent from the fact that the Single Judge has relied upon the decision in H.N. Shivanna [2012 (11) TMI 1333 - KARNATAKA HIGH COURT] in which it was observed by the Division Bench that scheme to be completed in 2 years otherwise it would lapse. It was precisely the question of time period which was dwelt upon and what was ultimately decided by this Court in Offshore Holdings has been blatantly violated by the Single Judge and that too in flagrant violation of the provisions and intendment of the Act.
It is also apparent from the facts and circumstances of the case that there were a large number of irregularities in the course of an inquiry Under Section 18(1) of the BDA Act. Government had nothing to do with respect to the release of the land at this stage, as the stage of final notification had not reached but still the landowners in connivance with the influential persons, political or otherwise, managed the directions in respect of 251 acres of the land and Special Land Acquisition Collector also considered exclusion of 498 acres of the land against which the question was raised in the Assembly and eyebrows were raised in public domain. Two inquiries were ordered on 24.11.2012 and 19.1.2013 by the State Government and based upon that inquiry, it was ordered and a public notice was issued on 3rd May, 2014 that the BDA will consider the entire matter afresh - it was not at all open to the High Court to quash the preliminary notification issued Under Section 17, as the land owners, State Government and BDA were responsible to create a mess in the way of planned development of the Bangalore city.
The State Government as well as the BDA directed to proceed further to issue final notification without any further delay in the light of the observations made in the order. The impugned orders passed by the Single Judge and the Division Bench are hereby quashed and set aside. The scheme and notification Under Section 17 of the BDA Act are hereby upheld with the aforesaid directions - the Land Acquisition Officer proposed exclusion of 251 acres of land from acquisition on being asked by the Government after the preliminary notification was issued. The Land Acquisition Officer, has considered another 498 acres of land to be excluded from being acquired.
Hon'ble Mr. Justice K.N. Keshavanarayana, former Judge of the Karnataka High Court appointed as the Inquiry Officer for fixing the responsibility on the officials of the BDA and the State Government who were responsible for the aforesaid. The Commissioner, BDA is hereby directed to consult Inquiry Officer and pay his remuneration. Further, we direct BDA to provide appropriate secretarial assistance and logistical support to the Inquiry Officer for holding the inquiry.
Appeal disposed off.
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2018 (8) TMI 2148 - KARNATAKA HIGH COURT
Dishonour of Cheque - failure to take into consideration the provisions of Section 269 SS of the Income Tax Act, 1961 while taking cognizance of offence - HELD THAT:- In the instant case, the prosecution is initiated against the petitioner for the alleged dishonor of a cheque. The case of the complainant is that in repayment of the hand loan advanced by him, the petitioner/accused issued the cheque in question which has been dishonored. No doubt, the sources from which the complainant paid the loan amount may be required to be established during the trial, but the prosecution under Section 138 of N.I. Act cannot be stalled for non-compliance of Section 269 SS of the Income Tax Act. Any cash transaction in violation of Section 269 SS of Income Tax Act may give rise to an independent criminal offences, but on account of violation of the said provision, the prosecution of the petitioner for the alleged dishonour of cheque under Section 138 of Act does not become bad in law. Even otherwise, the contention urged by the petitioner could be decided only during the trial.
Petition dismissed.
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2018 (8) TMI 2147 - SUPREME COURT
High Court exercising its revisional power overturned the verdict (refusal to discharge) and thought it proper to order for discharge - Appreciation of evidence for discharge undertaken by High Court - HELD THAT:- Appreciation of evidence is an exercise that the High Court, could not have undertaken at this stage of consideration of the application for discharge. But this is what precisely what High Court appears to have been done.
While there can be no dispute on the proposition that has been laid by this Court in Yogesh alias Sachin Jagdish Joshi [2008 (4) TMI 803 - SUPREME COURT] what has happened in the present case is that the statements recorded in the course of investigation had been weighed, analyzed and appreciated. In a situation where the said evidence is yet to be tested by cross-examination and the veracity of either of the two versions is yet to be established, it cannot be said that there are two possible views of the matter. The observations of this Court in Yogesh alias Sachin Jagdish Joshi will, therefore, not assist the accused.
The power exercised by the High Court to order for discharge was premature. Consequently, the order of the High Court ought to be set aside - The appeals are, consequently, allowed.
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2018 (8) TMI 2146 - COMPETITION COMMISSION OF INDIA
Anti-competitive agreements - case is that Informant has alleged that the OP group being a dominant player in the market has imposed unfair and arbitrary terms and conditions in the Agreement and that such conduct violates the provision of Section 4 of the Act - Whether the OP group has contravened the provisions of Section 4 of the Act? - relevant market - Dominance - Abuse of Dominance.
HELD THAT:- Section 4 of the Act prescribes abusive conduct by a dominant enterprise. Since the conduct of the OP group needs to be analysed under Section 4 of the Act, the existence of a position of dominance in terms of the Act needs to be determined first as there can be no abuse of dominance in the absence of dominance. The position of dominance of an enterprise is, usually, with context to a relevant market within which such an enterprise is alleged to be abusing its position.
Relevant market - HELD THAT:- The Commission observes that if the cities in NCR like Noida or Ghaziabad or Faridabad are compared with Gurgaon as per the criteria laid down above, it becomes apparent that the conditions of competition in these cities are not homogenous. Hence, these cannot together be considered as one geographic market. Even if there is a 5% increase in the price of the properties in Gurgaon, a consumer’s preference will not change since there are other external factors to be considered while purchasing a residential property in the market. The geographic region of Gurgaon has gained relevance owing to its unique circumstances and proximity to Delhi, Metro Stations, preference by MNCs, big commercial and institutional centres, shopping malls, well developed infrastructure, wide roads, etc. Thus, in view of the foregoing, the Commission opines that the city of Gurgaon is a separate relevant market.
Dominance - HELD THAT:- In the present case, it is noted that the property in relation to which the allegation of abuse has been made was booked in 2011-12, whereas in the previous cases the property was booked in the period 2006-2009. The investigation by the DG shows that the market dynamics as they existed then are different from those in 2011-2012. Several new players have entered the geographic market of Gurgaon to provide the services of development of residential apartments. These include not only new players competing to make a space for themselves in the market but also players with established brand names such as Tata and Godrej. Thus, in such a changed market scenario during the relevant period no individual player including the OP group appears to have the ability to influence the conditions of competition in the relevant market.
Abuse of Dominance - HELD THAT:- Since the OP group does not appear to be in a dominant position in the relevant period with the changed scenario, there remains no requirement to examine the allegations of abuse of dominance, since in the absence of dominance there can be no case of abuse of dominance in terms of Section 4 of the Act.
The Commission concludes that the contravention of the provisions of Section 4 of the Act is not established in the instant matter. Hence, the case is ordered to be closed under Section 26(6) of the Act.
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2018 (8) TMI 2143 - SUPREME COURT
Election petition - time limitation - limitation for filing the election petition had expired - Order 7 Rule 11 - HELD THAT:- In Charan Lal Sahu v. Nandkishore Bhatt [1973 (8) TMI 177 - SUPREME COURT], a two Judge bench held that there is no common law right to challenge an election since it is purely a matter of Regulation by the terms of the statute. The right being statutory, the terms of the statute must be complied with.
The Haryana Panchayati Raj Act 1994 is a complete code for the presentation of election petitions. The statute has mandated that an election petition must be filed within a period of 30 days of the date of the declaration of results. This period cannot be extended. The provision of Section 14 of the Limitation Act 1963 would clearly stand excluded. The legislature having made a specific provision, any election petition which fails to comply with the statute is liable to be dismissed. The High Court has failed to notice both the binding judgments of this Court and its own precedents on the subject, to which we have referred. The first Respondent filed an election petition in the first instance to which there was an objection to maintainability Under Order 7 Rule 11 of the Code of Civil Procedure. Confronted with the objection Under Order 7 Rule 11, the first Respondent obviated a decision thereon by withdrawing the election petition. The grant of liberty to file a fresh election petition cannot obviate the bar of limitation. The fresh election petition filed by the first Respondent was beyond the statutory period of 30 days and was hence liable to be rejected.
The election petition filed by the first Respondent shall stand dismissed.
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2018 (8) TMI 2142 - SUPREME COURT
Dacoity/Burglary - concrete proof to establish the participation of the appellant in the alleged crime or not - HELD THAT:- There was no instance of alleged dacoity on the time and place of occurrence wherein the accused was a party, we find from the deposition of Reena Devi (PW1), daughterinlaw of the informant that on the intervening night of 11th and 12th January, 1999 on hearing some disturbance, she woke up and found the assailants armed with sticks, looting articles in the house. When she tried to resist, they assaulted her and took away her ornaments including golden bangle and a chain and also tried to snatch her child. A brief case of her husband Neeraj Kumar (PW2) containing clothes and cash of Rs.5,200/ has also been stolen. Altogether the worth of stolen property would be Rs.25,000/. In that commotion, hearing her hue and cry her fatherinlaw—PW3 (informant) and motherinlaw came there who objected the assailants and they too were assaulted by the accused.
In the case on hand, before looking at the confessional statement made by the accused—appellant in the light of Section 27 of the Evidence Act, may be taken into fold for limited purposes. From the aforesaid statement of the appellant, it is clear that he had explained the way in which the accused committed the crime and shared the spoils. He disclosed the fact that Munna Manjhi was the Chief/Head of the team of assailants and the crime was executed as per the plan made by him - The recoveries of used polythene pouches of wine, money, clothes, chains and bangle were all made at the disclosure by the accused which corroborates his confessional statement and proves his guilt. Therefore, the confessional statement of the appellant stands and satisfies the test of Section 27 of the Evidence Act.
It is also clear from the statement of the accused—appellant that the inmates of the house suffered injuries at the hands of the accused party as they had beaten them with the pieces of wood (sticks) and created terror among them. The recovery of bloodstained sticks from the orchard of Kamal Jain and the FSL report (Ext.X) proves the circumstance with no manner of doubt. Another facet of the case as portrayed by the appellant in his defense is that the informant implicated the appellant in the crime with the connivance of I.O. due to old enmity. However, we do not find any evidence or material on record in support of such claim made by the appellant. On the other hand, not only by the recovery of Rs.400/ from the house of appellant his participation stands proved, with the other incriminating evidence available on record.
There are no hesitation to conclude that the prosecution has proved the case against the accused—appellant beyond all reasonable doubts - there are no infirmity or illegality in the impugned judgment passed by the High Court - appeal dismissed.
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2018 (8) TMI 2141 - SUPREME COURT
Exaggeration of the issue - doctrine of falsus in uno, falsus in omnibus (false in one thing, false in everything) - Setting out fire on the houses of IPF members, including the party leader - assault of IPF members and breaking into the houses of the locality and destroying household articles - stealing money - snatching a pair of gold earrings - HELD THAT:- It is a well settled position of law that the testimony of a witness cannot be discarded in toto merely due to the presence of embellishments or exaggerations. The doctrine of falsus in uno, falsus in omnibus, which means "false in one thing, false in everything" has been held to be inapplicable in the Indian scenario, where the tendency to exaggerate is common. This Court has endorsed the inapplicability of the doctrine in several decisions, such as Nisar Ali v. State of Uttar Pradesh [1957 (2) TMI 92 - SUPREME COURT], Ugar Ahir v. State of Bihar [1964 (3) TMI 128 - SUPREME COURT], Sucha Singh v. State of Punjab, [2003 (7) TMI 704 - SUPREME COURT], Narain v. State of Madhya Pradesh, [2004 (2) TMI 742 - SUPREME COURT] and KAMESHWAR SINGH AND ORS. VERSUS STATE OF BIHAR AND ORS. [2018 (4) TMI 1965 - SUPREME COURT].
In Krishna Mochi v. State of Bihar, [2002 (4) TMI 971 - SUPREME COURT], this Court highlighted the dangers of applying the doctrine in the Indian scenario holding that The aforesaid dictum is not a sound Rule for the reason that one hardly comes across a witness whose evidence does not contain a grain of untruth or at any rate exaggeration, embroideries or embellishment.
It is not uncommon for witnesses to make exaggerations during the course of evidence. But merely because there are certain exaggerations, improvements and embellishments, the entire prosecution story should not be doubted.
It is found from the records that the versions of the eye witnesses cannot be said to be untrustworthy, especially in light of the observation of this Court in Masalti's case [1964 (5) TMI 45 - SUPREME COURT]. There are as many as 24 injured eye witnesses in the case and their presence cannot be doubted. In this situation, it is found that the High Court has not applied its judicial mind in determining whether the judgment of the trial court was perverse inasmuch as the entire body of evidence was discarded, simply on the basis that some of the witnesses had deposed for the first time before the Court.
The High Court has not at all assigned any cogent reason for reaching its conclusion. The revisional jurisdiction must be exercised by the High Court only in exceptional circumstances, where there is a gross miscarriage of justice, manifest illegality or perversity in the judgment of the lower court. Interference would be warranted only if there is a manifest illegality in the judgment of the lower court. But in the matter on hand, because of non-furnishing of valid reasons by the Trial Court, while coming to its conclusion, there is manifest illegality, and thus, the view taken by the High Court cannot be termed as reasonable - the revisional jurisdiction vested in the High Court has not been properly exercised by the High Court. The High Court should not have proceeded casually while affirming the judgment of the trial Court. Having regard to the material on record and having regard to the magnitude of the offence, the High Court should have been more serious while considering the revision petition.
The High Court has failed to consider whether the Trial Court discarded material evidence in the form of eye-witness testimony on the issues of murder, attempt to murder and grievous hurt and completely overlooked evidence on other charges such as unlawful assembly and house-burning - the High Court has not given due consideration to the evidence on record to arrive at a reasoned conclusion and has thus failed to exercise its revisional jurisdiction in accordance with established principles. In our opinion, it would be appropriate for the High Court to undertake proper consideration of the material of the matter once again with due application of the judicial mind to find out as to whether the trial Court's order has caused gross miscarriage of justice, manifest illegality or perversity.
Appeal allowed.
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2018 (8) TMI 2140 - MADRAS HIGH COURT
Requirement to stamp sale certificate - requirement of registration of sale certificate - sale certificate should be treated only as a sale deed or not - to be classified under Article 18(c) of the Indian Stamp Act or not - writ petition was dismissed on the ground that the sale certificate was issued in the year 2008 and till 2013, the appellant had not chosen to register the same on the ground that it is not compulsorily registrable - HELD THAT:- So far as the requirement of registration is concerned, there is no doubt that the sale certificate is not required to registration in view of Section 17(2)(xii) of the Registration Act - Though Section 17 refers to documents which are compulsorily registrable, sub-section (2) provides that nothing in clauses (b) and (c) of sub-section (1) would apply to the nature of the documents as set out thereafter and in clause (xii) in particular specifically stated that any certificate of sale granted to the purchaser of any property sold by public auction by a Civil or Revenue officer, as any sale certificate issued as per the provisions of the Security Interest (Enforcement) Rules 2002 in public auction, is deemed to be sale by the revenue. Thus the statute makes it very clear that the sale certificate issued need not be registered.
Applicability of Indian Stamp Act, 1899 - HELD THAT:- Though the sale certificate referred is not compulsorily registrable whether the stamp duty is payable on the same is relevant - So far as the certificate of sale itself is not compulsorily registrable document in view of Section 17(2)(xii) of the Indian Stamp Act, transfer of title in favour of the purchaser is not vitiated by non registration of the certificate. All that is required is to file a copy of the sale certificate as per Section 89 (4) of the Registration Act.
Therefore, the refusal by the Sub Registrar to file sale certificate issued by the Recovery Officer by making necessary entries in the Book in accordance with sub-section (4) of Section 89 of the Registration Act is not justified.
In B.Arvind Kumar Vs.Government of India and Others [2007 (5) TMI 657 - SUPREME COURT], it is held that a property sold in public auction pursuant to an order of the Court and once the sale is confirmed it becomes absolute and the title vests with the auction purchaser. The subsequent sale certificate issued to the purchaser is the evidence of such title which does not require registration under Section 17(2) (xii) of the Registration Act. In the case on hand also the property was purchased in public auction on 16.05.2008 and the sale certificate was issued on 31.08.2008. Therefore, the appellant/purchaser automatically becomes title holder of the property by virtue of the sale certificate. The payment of stamp duty on the sale certificate is not warranted as it is only a sale certificate issued which has to be filed or scanned in Book No.1 as per Section 89(4) of the Registration Act.
The payment of stamp duty perhaps may arise only when the appellant wants to deal with the property by selling it. As long as the sale certificate remains as it is, it is not compulsorily registrable. If the appellant uses the document for any other purpose, then the requirement of stamp duty etc., would arise. Hence, the plea of the appellant is well within the statutory powers.
The dismissal of the writ petition on the ground of delay and payment of stamp duty therefor does not arise and therefore, cannot be sustained - Appeal allowed.
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2018 (8) TMI 2137 - PUNJAB AND HARYANA HIGH COURT
Dishonour of Cheque - proclaimed offender - whether when the main FIR itself has been compromised between the parties, subsequent FIR registered under Section 174-A of the IPC can be quashed on the basis of compromise? - HELD THAT:- This Court is of the considered view that the objective of the coercive mechanism prescribed the provisions of the Code of Criminal Procedure for declaring an accused as proclaimed person is mainly to ensure that the person remains present before the Court to face the trial and to receive the punishment for his alleged conduct, which has constituted the offence. If the person has appeared before the Court, even after he was declared as proclaimed person or is granted bail by the Court after such declaration then the object of the procedure prescribed under the Code of Criminal Procedure stands achieved.
In the present case, as is borne out from the record, the main FIR under Section 420 of the IPC was registered on 11.6.2016. For the first time, the police had given him a notice under Section 41-A of the Cr.P.C. on 3.5.2017. However, the petitioner did not appear before the prosecuting agency, which led to issuance of arrest warrant of the present petitioner. Since the warrants of arrest cannot be executed as such, the proceedings under Section 82 Cr.P.C. were initiated - the object of coercive measures which was enforced against the petitioner stands duly achieved. The Trial Court had even granted regular bail to the petitioner for the offence under Section 174-A of the IPC.
This Court feels that since the main FIR has already been compromised between the parties and is not going to proceed further, therefore, it would not be justified to make the petitioner to face trial only for an offence under Section 174-A of the IPC. Therefore, even the FIR No.138 dated 09.04.2018, which pertains to offence under Section 174-A of the IPC deserves to be quashed.
Petition allowed.
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2018 (8) TMI 2131 - SC ORDER
Enforcement of a foreign award - Sections 47 to 49 of the Arbitration and Conciliation Act, 1996 - HELD THAT:- The special leave petition is dismissed.
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2018 (8) TMI 2124 - SC ORDER
Time limitation for passing arbitral award - whether Section 34 application could be said to be within the time mentioned in Section 34(3) of the Arbitration and Conciliation Act, 1996 - HELD THAT:- The judgment of the Bombay High Court in the case of Amit Suryakant Lunavat vs. Kotak Securities, Mumbai [2010 (9) TMI 1292 - BOMBAY HIGH COURT] does not reflect the correct position in law. Section 34(3) specifically speaks of the date on which a request under Section 33 has been “disposed of” by the Arbitral Tribunal.
Thus, a “disposal” of the application can be either by allowing it or dismissing it. On this short ground the learned Single Judge of the Delhi High Court is correct in law - SLP dismissed.
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2018 (8) TMI 2123 - SUPREME COURT
Appointment of Chartered Accountant - Jurisdiction of a civil revision when Under Section 47 of the Code of Civil Procedure for such appointment - HELD THAT:- The High Court has acted in manifest excess of its jurisdiction while directing the appointment of a Chartered Accountant for the purpose of determining as to whether the decretal debt is to be marked as satisfied. The execution proceeding is pending before the Additional Civil Judge, Dehradun and, as we have noticed, various orders have been passed thereon from time to time. The issue as to whether the decree has been discharged or satisfied has to be determined by the Executing Court Under Section 47 of the Code of Civil Procedure. The Executing Court must execute the decree as it stands without adding anything to it - The High Court has acted in excess of jurisdiction by directing the appointment of a Chartered Accountant, particularly at this stage.
The impugned order of the High Court dated 18 September 2017 set aside - appeal allowed.
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2018 (8) TMI 2120 - SUPREME COURT
Validity of the charge memo - continuance of Respondent No. 1 under suspension - tampering with the witness - Rule 14 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 and Rule 8 of the All India Service (Discipline and Appeal) Rules, 1969.
Validity of the Charge-Memo - HELD THAT:- Rule 8 of the All India Service (Discipline and Appeal) Rules, 1969 prescribes a procedure for imposing major penalties. A major penalty specified in Rule 6 cannot be imposed except after holding an enquiry in the manner prescribed in Rule 8. Where it is proposed to hold an enquiry against a member of the service Under Rule 8, the disciplinary authority shall "draw up or caused to be drawn up" the substance of the imputation of misconduct or misbehavior into definite and distinct Article of charge. The Rule further provides for an opportunity to be given to the delinquent to submit his explanation, the appointment of an inquiring authority and the procedure to be followed for imposition of a penalty with which we are not concerned in this case - There is no doubt that the Government of Tamil Nadu is the disciplinary authority. The authority to act on behalf of the State Government as per the Business Rules is the Minister for Home Department.
It is clear that the approval of the disciplinary authority was taken for initiation of the disciplinary proceedings. It is also clear from the affidavit that no approval was sought from the disciplinary authority at the time when the charge memo was issued to the delinquent officer. The submission made on behalf of the Appellant is that approval of the disciplinary authority for initiation of disciplinary proceedings was sufficient and there was no need for another approval for issuance of charge memo. The basis for such submission is that initiation of disciplinary proceedings and issuance of charge memo are at the same stage - It is also settled law that if the Rule requires something to be done in a particular manner it should be done either in the same manner or not at all.
Deemed suspension Under Rule 3(2) of the All India Services Rules for being in custody for a period of more than 48 hours - HELD THAT:- Periodic reviews were conducted for his continuance under suspension. The recommendations of the Review Committees did not favour his reinstatement due to which he is still under suspension. Mr. P. Chidambaram, learned Senior Counsel appearing for the first Respondent fairly submitted that we can proceed on the basis that the criminal trial is pending. There cannot be any dispute regarding the power or jurisdiction of the State Government for continuing the first Respondent under suspension pending criminal trial. There is no doubt that the allegations made against the first Respondent are serious in nature. However, the point is whether the continued suspension of the first Respondent for a prolonged period is justified.
The first Respondent has been under suspension for more than six years. While releasing the first Respondent on bail, liberty was given to the investigating agency to approach the Court in case he indulged in tampering with the evidence. Admittedly, no complaint is made by the CBI in that regard. Even now the Appellant has no case that there is any specific instance of any attempt by the first Respondent to tamper with evidence.
Thus, no useful purpose would be served by continuing the first Respondent under suspension any longer and that his reinstatement would not be a threat to a fair trial - appeal disposed off.
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2018 (8) TMI 2107 - ANDHRA PRADESH HIGH COURT
Seeking appointment of an arbitrator - Arbitration in the Credit Information Companies (Regulation) Act, 2005 - credit institution - applicant pleaded that the third respondent CIC has erroneously and without verification of any details, included false information as furnished by the credit institution, regarding the applicant - whether the dispute as between the applicant as a borrower and the credit institution is not a dispute that would fall under Section 18 of the Act for settlement in terms thereof read with the provisions of the A & C Act?
HELD THAT:- Section 18 of the Act is a mechanism for settlement of disputes relating to business of credit information. It does not relate to settlement of any dispute as between the borrower and the credit institution in relation to the credit information given by the credit institution to the CIC, including the correctness or otherwise of such information. This will be the legal position also in relation to any dispute as between a 'client' as defined in Section 2(c) (which is an inclusive definition) of the Act and the credit institution. Section 18 of the Act would apply only when dispute arises on matters relating to business of credit information. A dispute between the borrower and credit institution, including any dispute as to the correctness or otherwise of the credit information given by the credit institution to the CIC, is not a dispute relating to the business of credit information.
This request filed invoking Section 11(6) of the Arbitration and Conciliation Act, 1996 read with Section 18 of the Credit Information Companies (Regulation) Act, 2005 fails - Application dismissed.
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2018 (8) TMI 2077 - DELHI HIGH COURT
Dishonor of Cheque - contention of the respondents is that no case was made out for they to be summoned only because they were alleged to be directors of the concerned company (first accused) - inherent power of this Court under Section 482 of the Code of Criminal Procedure, 1973 - HELD THAT:- The case involves the application of the penal clause contained in Section 138 of Negotiable Instruments Act, 1881, the liability of the respondents requiring to be examined also in light of the provision contained in Section 141 thereof - Mere allegations that these respondents were directors or "active participants" in the management or day to day affairs of the company are not sufficient. There is no averment, not even remotely made, that they were incharge of or responsible for affairs of the company "at the time of commission of the offence". The opinion leading to the revisional court's order, thus, cannot be faulted.
The petition and the pending application are dismissed.
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2018 (8) TMI 2072 - BOMBAY HIGH COURT
Dishonor of cheque - insufficiency of funds - rebuttal of statutory presumption - Section 138 of NI Act - HELD THAT:- The respondent/accused has not disputed the handwriting on the two cheques and has not denied that the signature on the two cheques is of the respondent/accused. The respondent/accused has not denied that the transaction in respect of Plot No. 28 had taken place and the respondent/accused admitted that he had received ₹ 09,00,000/- - the accused only denied that he had not received ₹ 13,60,000/as claimed by the accused.
The learned Magistrate should have granted benefit of statutory presumption created by Section 139 of the Act of 1881 and should have rejected the defence of the respondent/accused. The learned Magistrate has committed an error by placing the burden on the complainant to show that the transaction in respect of Plot No. 28 had taken place. The learned Magistrate has further committed an error by delving into the genuineness of the transaction in respect of plot No. 28, when the accused had also not denied the transaction and admitted that he had received ₹ 09,00,000/- towards part payment as per the agreement of sale.
The impugned judgments are unsustainable - Appeal allowed - decided in favor of appellant.
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2018 (8) TMI 2067 - PATNA HIGH COURT
Dishonor of Cheque - framing of charges against the petitioners - criminal breach of trust - whether the allegations made in the FIR when taken on their face value would constitute the offences punishable under Sections 406 and 420 of the IPC? - HELD THAT:- In the opinion of this Court, simply because the company withheld payment either to the milk suppliers or it failed to make payment due to the milk van and salary to the informant, the same would not constitute an offence punishable under Section 406 of the IPC - In order to make out a case of criminal breach of trust, it is not sufficient to show that the money has been retained by the company but also that the company dishonestly disposed of the same or dishonestly retained the same. The mere fact that the accused persons did not pay the amount due would not amount to criminal breach of trust.
It is well settled position in law that in order to attract the provisions of Section 420 IPC, the guilty intent at the time of making the promise is a prerequisite and an essential ingredient thereto, and subsequent failure to fulfil the promise by itself would not attract the provisions of Section 420 IPC - In Dalip Kaur & Ors. Vs. Jagnar Singh & Anr. [2009 (7) TMI 1365 - SUPREME COURT], the question for determination before the Supreme Court was whether breach of contract of an agreement for sale would constitute an offence under Section 406 or Section 420 of the IPC. After examining the fact of the case and relevant Sections of the IPC, the Supreme Court held that an offence of “cheating‟ would be constituted when the accused has fraudulent or dishonest intention at the time of making of promise or representation. A pure and simple breach of contract does not constitute the offence of “cheating‟.
In the present case, what has been alleged by the informant in his written report is that the company did not make appropriate payment to the milk suppliers. It also failed to make payment due to the milk van and salary of the informant as also wages due to the labour of the milk van. Apart from the allegation of non-payment of dues to various persons, as discussed above, there is no iota of allegation they had dishonest intention in misappropriation of property. There is no allegation that the company or the petitioners made any willful misrepresentation. There is also no allegation that the petitioners induced the informant to believe anything to be true which was false and which the petitioners knew or believed to be false - in view of the allegation made by the informant, the agreement, if any, was between the milk suppliers and the company and the informant had got no concern with such agreement. In the event, the company failed to fulfill its liability under the agreement, the aggrieved persons would have been the milk suppliers.
Apart from the fact that the allegations made in the FIR lacks necessary ingredients of sections 406 and 420 of the IPC, concept of vicarious liability is unknown to criminal law. The IPC does not provide for vicarious liability upon the directors of the comapny for any offences alleged to be committed by a company.
From perusal of the cheques, it would be apparent that the alleged cheques were issued under the signature of petitioner no. 1 on behalf of Natural Dairy Pvt. Ltd. Thus, the liability to pay, if any, was of the company of which the petitioner no.1 was the authorized signatory - It is settled position in law that when a cheque, which is drawn by the company, is dishonoured, the company will have to be made a party to the proceedings under Section 138 of the NI Act and failure to do so will vitiate the prosecution.
This Court is of the opinion that the criminal proceedings initiated against the petitioners in the present case, is an abuse of the process of law and, as such, the criminal proceedings as well as the impugned order cannot be sustained. The Court is also of the opinion that the learned Judicial Magistrate-1 st Class, Patna without appreciating the facts and considering the settled provisions of law rejected the application filed by the petitioners under Section 239 of the CrPC in the most mechanical manner.
Application allowed.
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2018 (8) TMI 2064 - BOMBAY HIGH COURT
Dishonor of Cheque - discharge of legally enforceable debt or not - rebuttal of presumptions - Section 118 and 139 of the NI Act - Cross-examination of witnesses - preponderance of probabilities - HELD THAT:- The defence has to only show that its stand is probable and that would lead to rebuttal of presumptions. In the present case, the reply notice dated 01.04.2014 issued by the respondent assumes significance, because not only did the respondent deny the claims made by the appellant in her statutory notice, but defence of the respondent was clearly indicated in the reply notice. Despite the respondent calling upon the appellant not to deposit the remaining two cheques, the appellant went ahead to deposit the same.
A perusal of the cross-examination of the appellant in the witness box shows that a specific objection was raised on behalf of the respondent in respect of the receipt at Exh. 31 and signature on the same was denied. In the face of such denial by the respondent, it was incumbent upon the appellant to have proved signature of the respondent on the said receipt. No effort was taken by the appellant to do so - it was for the appellant to have taken appropriate steps to prove that the receipt was indeed signed and executed by the respondent. As no such steps were taken, the receipt at Exh. 31 could not have become a basis for the appellant to claim that the respondent had admitted of having taken loan from the appellant.
The trial Court in the impugned judgments and orders has taken into consideration the entire oral and documentary evidence on record. It was found that there were transactions between the parties pertaining to immovable property. It was found that the presumptions in the present case were satisfactorily rebutted by the respondent by responding to the statutory notice and also effectively cross-examining the appellant. It is settled law that an accused in such cases can rebut the presumption not only by placing on record positive evidence and examining witnesses, but also by discrediting the complainant by effective cross-examination - In the present case, the admissions given by the appellant in cross-examination read with the documents produced by the appellant herself, show that the entire story put forth on behalf of the appellant was not proved beyond reasonable doubt and that the respondent had successfully proved his defence on the touchstone of preponderance of probabilities.
It is trite in criminal jurisprudence that the one that accrues in favour of the accused is to be adopted - Appeal dismissed.
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2018 (8) TMI 2062 - SUPREME COURT
Reforms in the administration of cricket proposed by a Committee - Issues relating to membership and Associate Membership - Number of members in Selection Committee and related matters - Cooling off period - Disqualifications - Constitution of the Apex council - Conditions imposed on State Associations - Power/Duties of Office Bearers and Professional Management (CEO) - No interference at all in the functioning of BCCI - Binding value of Frequently Asked Questions issued by the Hon’ble Justice Lodha committee.
Issues relating to membership and Associate Membership: One State – One Vote - HELD THAT:- The one state – one vote norm and the principle of territoriality have given rise to specific objections. Historically in the State of Maharashtra, there have been three associations, each of which fields its own cricket team in the Ranji Trophy : (i) Maharashtra; (ii) Mumbai and; (iii) Vidarbha. Similarly, in the State of Gujarat, there have been three associations representing: (i) Gujarat; (ii) Baroda; and (iii) Saurashtra. In both the states, these associations have made a signal contribution to the cricketing history of the nation. Besides, fielding teams for the Ranji Trophy, these associations have produced players of national and international repute. The amicus has responded to the plea before this Court for allowing full membership to the three associations each in the States of Maharashtra and Gujarat - The amicus while recognising the circumstances of history pertaining to Maharashtra and Gujarat submits that the recommendations of the Lodha Committee which have been accepted in the principal judgment seek to bring about uniformity in the structure of management and a certain amount of domestic equality. However, he suggests that the releasing of grants and such other requirements as may be necessary for constituents must be suitably addressed by the CoA and by the regularly elected Apex Council.
It is clarified specifically that the representative from Railways who would exercise voting power must be a former cricketer who has represented Indian Railways and who is elected by an association of former players from the Indian Railways and not a person nominated by the government or the Railway Sports Promotion Board.
Services and Association of Indian Universities - HELD THAT:- The Services team represents the Armed Forces of the nation. The Services have a long history of association with Indian sports in general and with cricket as well. Having regard to the pre-eminent position occupied by the Services including the Army, Navy and Air Force in propagating the cause of sports and cricket, we are of the view that the same principle which we have followed in the case of Railways should be followed in their case. Similarly, the Universities are a nucleus for encouraging the game of cricket among players of the college going generation in the country - The amendment which has been proposed to the draft constitution by the amicus in the case of the Railways shall be suitably modified to also cover the Services and the Association of Indian Universities. The representative respectively for Services and the Association of Indian Universities shall be a former cricketer who has played for them respectively and is elected by an association of former players and not a person nominated by the government/ sports control board.
Number of Selectors - HELD THAT:- The Lodha Committee restricted the number of selectors to three. While doing so, it opined that with the constitution of a Cricket Talent Committee, a three-member selection committee will be more compact, increase the authority of the Selection Committee and make it accountable for team performance - Until the elections to the BCCI take place, the CoA is empowered to consult with the Cricket Advisory Committee, comprising of reputed former international cricketers and to constitute a Committee of Selectors.
Cooling off period - HELD THAT:- The Committee has been guided by the need to ensure that vested interests do not emerge out of the indefinite continuation in office of one or more individuals. These recommendations seek to enforce a rule against self-perpetuation by stipulating the period of each term of office, the number of terms which a single individual may hold and the requirement of a break between successive terms. The recommendations can be construed as an effort to ensure a dispersal of authority so that control over BCCI and the state associations is not concentrated in the hands of one or a limited group of persons. The proposals for setting limits on tenures and terms were incorporated in a section which the Committee describes as the “end of the innings”.
While dealing with the objections to a cooling off period, it is necessary at the outset to emphasise that the term of an office bearer cannot be regarded either as an opportunity “to enrich himself” or as a matter involving “continuity of service”. The expression “enriched himself” may have a legitimate connotation if it adverts only to experience gained. Otherwise, enrichment in the form of personal aggrandisement is precisely what was frowned upon by the Lodha Committee, and for justifiable reasons. The position of an office bearer in the state associations and in the BCCI is not a matter of ‘service’ in the conventional sense. Office bearers should not construe their position as employees with a vested right to a particular tenure of service. Undoubtedly, the submission that individuals must continue for a period which enables them to develop experience in the administration of the game cannot be discounted - the requirements that the term of office of an office bearer should be three years; and that an individual should not hold office in the BCCI for a period excess of nine years (regardless of the post held) with a similar stipulation of nine years for the state associations is manifestly in public interest. Both the stipulations are valuable safeguards to ensure against the concentration of power.
A cooling off period has several features which are of utmost importance : (i) it is a safeguard against the development of vested personal interests; (ii) it ensures against the concentration of power in a few hands; (iii) it facilitates a dispersal of authority; and (iv) it encourages the generation of a wider body of experienced administrators. Cooling off must be accepted as a means to prevent a few individuals from regarding the administration of cricket as a personal turf. The game will be better off without cricketing oligopolies.
The Registrar of Societies under the Tamil Nadu Societies Registration Act, 1975 shall upon the presentation of the said Constitution by the CEO, register the documents forthwith and report compliance by way of a report to the Secretary General of this Court within four weeks - Upon the registration of the said Constitution of BCCI, each of the members shall undertake registration of their respective Constitutions on similar lines within a period of 30 days thereafter. A compliance certificate must be furnished to the CoA, which shall file a status report before this Court with reference to the compliance undertaken by the State Associations - In the event that any State Association does not undertake compliance with the abovesaid directions, the directions contained in the orders of this Court dated 7 October 2016 and 21 October 2016 shall revive.
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