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Indian Laws - Case Laws
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2021 (12) TMI 1424 - SUPREME COURT
Condonation of delay of 1011 days in preferring the Second Appeal - Suit for for permanent injunction against the respondents herein (original defendants) - It is submitted that as such no sufficient cause was shown by the respondents herein appellants before the High Court, explaining the huge delay of 1011 days in preferring the Second Appeal - violation of principles of natural justice - HELD THAT:- There is no sufficient explanation for the period from 15.03.2017 till the Second Appeal was preferred in the year 2021 - In the application seeking condonation of delay it was stated that she is aged 45 years and was looking after the entire litigation and that she was suffering from health issues and she had fallen sick from 01.01.2017 to 15.03.2017 and she was advised to take bed rest for the said period. However, there is no explanation for the period after 15.03.2017. Thus, the period of delay from 15.03.2017 till the Second Appeal was filed in the year 2021 has not at all been explained. Therefore, the High Court has not exercised the discretion judiciously.
In the case of P.K. Ramachandran [[1997 (9) TMI 598 - SUPREME COURT]], while refusing to condone the delay of 565 days, it is observed that in the absence of reasonable, satisfactory or even appropriate explanation for seeking condonation of delay, the same is not to be condoned lightly. It is further observed that the law of limitation may harshly affect a particular party but it has to be applied with all its rigour when the statute so prescribes and the courts have no power to extend the period of limitation on equitable grounds. It is further observed that while exercising discretion for condoning the delay, the court has to exercise discretion judiciously.
Considering the averments in the application for condonation of delay, it is opined that as such no explanation much less a sufficient or a satisfactory explanation had been offered by respondent Nos.1 and 2 herein – appellants before the High Court for condonation of huge delay of 1011 days in preferring the Second Appeal. The High Court is not at all justified in exercising its discretion to condone such a huge delay. The High Court has not exercised the discretion judiciously. The reasoning given by the High Court while condoning huge delay of 1011 days is not germane. Therefore, the High Court has erred in condoning the huge delay of 1011 days in preferring the appeal by respondent Nos.1 and 2 herein – original defendants. Impugned order passed by the High Court is unsustainable both, on law as well as on facts.
The impugned order dated 16.09.2021 passed by the High Court condoning the delay of 1011 days in preferring the Second Appeal by respondent Nos.1 and 2 herein is hereby quashed and set aside - Appeal allowed.
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2021 (12) TMI 1405 - MADRAS HIGH COURT
Abuse of dominant positions - sale of electricity in the relevant market within the meaning of section 4(2)(a)(i) of the Competition Act, 2002 - whether a prima facie case is made out by the 3rd respondent for initiation of proceedings under the Competition Act or not? - whether there is any scope for the Tamil Nadu Electricity Regulatory Commission to conduct an investigation or impose penalty on the TANGEDCO under the provisions of the Electricity Act or not? - HELD THAT:- In the present case, the Competition Commission of India, considering the allegations raised by the 3rd respondent against the writ petitioner, formed an opinion that it is evident prima facie for the purpose of entertaining a complaint under Section 4 of the Competition Act and ordered for an investigation by the Director General and issued a notice to the TANGEDCO to submit their objections - The impugned notice categorically states that the Commission after considering the available information, is of the opinion that a prima facie case exists and has directed in its order dated 08.10.2013 that investigation be made in the matter by the Competition Commission of India. Thus, in order to enable the Directorate to investigate the matter, in exercise of powers conferred under Section 41(2) read with Section 36(2) of the Competition Act, the informations along with supporting documents were sought for from the writ petitioner/TANGEDCO.
In the present case, perusal of the allegations raised by the 3rd respondent would reveal that there is a prima facie case that the TANGEDCO/writ petitioner enjoys dominant position in respect of electricity in the State of Tamil Nadu. This factum is not disputed. When the writ petitioner/TANGEDCO is in dominant position, the allegations set out in the complaint indicates certain abuses and therefore, the said abuse of dominant position warrants any further action or not, is to be investigated and all appropriate proceedings are to be allowed for the purpose of forming a final opinion - This Court is not inclined to step-in to the nature of the allegations or its veracity or otherwise, which is yet to be investigated by the Director General under the provisions of the Competition Act. The allegations, which all are not yet investigated by the competent authority, it would be unnecessary for the Court to appreciate such allegations or made a finding, which would cause prejudice to either of the parties, either to proceed with the investigation or to form an opinion for initiation of further actions under the provisions of the Competition Act or to refer the matter to the Electricity Regulatory Commission under the Electricity Act by invoking Section 21-A of the Competition Act.
Once an anti-competitive practices are brought to the notice of the Competition Commission of India by way of complaint and such allegations are falling under Section 4 of the Competition Act, then the Competition Commission of India is empowered to conduct investigation and form a final opinion for the purpose of initiation of actions. In the present case, the Electricity Act does not provide any power to the Tamil Nadu Electricity Regulatory Commission to conduct investigation, more specifically, with reference to the allegations of abuse of dominant position, which is a specific provision under Section 4 of the Competition Act.
In the present case, the notice issued to the writ petitioners, calling upon to furnish the informations and documents to conduct investigation is under challenge. Undoubtedly, it is in premature stage, wherein, the authority competent yet to form final opinion with reference to the allegations of abuse of dominant position as contemplated under Section 4 of the Competition Act. When the Competition Act provides jurisdiction to the authorities to entertain complaint, more specifically, when there is no such investigating power contemplated under the Special Act, then there is no impediment for the Competition Commission of India for entertaining a complaint in the present case submitted by the 3rd respondent and thus, there is no infirmity or perversity. Thus, the case on hand is not a fit case for the purpose of quashing the notice. Contrarily, the writ petitioner is at liberty to avail the opportunities provided under the provisions of the Act by the respondents 1 and 2 and defend their case.
This being the factum established, the writ petition is not only premature, but not entertainable as the challenge made is a notice issued, providing an opportunity to the writ petitioner to defend their case under the provisions of the Competition Act, 2002. The writ petitioner is at liberty to submit their explanations or objections along with the informations and documents to the respondents 1 and 2 within a period of four weeks from the date of receipt of a copy of this order. On receipt of such materials, informations, explanations from the writ petitioner, the respondents 1 and 2 are directed to proceed with the investigations, by affording opportunity to the writ petitioner/TANGEDCO and conclude the investigation and all further proceedings within a period of four months from the date of receipt of a copy of this order. The writ petitioner is directed to co-operate for the investigation for early disposal of the case.
The writ petition stands dismissed.
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2021 (12) TMI 1396 - SUPREME COURT
Contempt proceedings - disobedience of the order passed by this Court - suppression of material facts - It appears that though eight Suits filed by one Hero Cycles Limited were pending and still the same was not disclosed before this Court - applicability of provisions of the Contempt of Courts Act - HELD THAT:- On considering the fact that Respondent No.1 has agreed that on deposit of the entire balance sale consideration of Rs. 8,35,00,000/- by the petitioners herein - original plaintiffs which may be deposited with the Commercial Court, Ludhiana and the Respondent No.1 may not be permitted to withdraw the same till the outcome of the aforesaid Suits and subject to the ultimate outcome of the aforesaid Suits and on such deposit, the respondent(s) shall execute the Sale Deed in favour of the petitioners - original plaintiffs and handover peaceful and vacant possession. It is reported that respondent is personally present in the Court and the aforesaid statement is made in his presence and he has also agreed to the aforesaid and the order which is being passed.
The Commercial Court, Ludhiana are directed to invest the aforesaid amount to be deposited by the petitioners, as observed herein above, in the name of the Respondent No.1 herein – original Defendant Nos. 2 & 3 in a Fixed Deposit in any nationalized Bank and the same shall be appropriated subject to the ultimate outcome of the aforesaid Commercial Suits. If the aforesaid Suits are decreed in favour of the original plaintiffs - Hero Cycles Limited and in case the Commercial Court holds in favour of the respondent No.1 herein, in that case, subject to the order that may be passed by the DRT-II Chandigarh, if any, the said amount be paid to the Respondent No.1.
The Respondent No.1 herein and the learned counsel appearing on behalf of the Respondent No.1 has handed over the original Title Deeds/documents in favour of the Respondent No.1 to the learned counsel appearing on behalf of the petitioners and the learned counsel appearing on behalf of the petitioners are satisfied with respect to the title of the Respondent No.1 and has stated at the Bar that they have no objection if the Sale Deed is executed by the Respondent No.1 on the basis of the Title Deeds/documents mentioned in the file and that they are satisfied with the title of the Respondent No.1 - present proceedings are closed.
Petition disposed off.
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2021 (12) TMI 1395 - SUPREME COURT
Smuggling - Heroin - Conspiracy - joint possession punishable under Section 21(c) of the NDPS Act - HELD THAT:- The submission of the Additional Solicitor General that offences under the NDPS Act are of a serious nature is appreciated and the case is at the post conviction stage. Yet the Court cannot be unmindful of the fact that the appellant has undergone 8 years out of the total sentence of 10 years. The appeal is unlikely to be heard early. In all probability, the entire sentence would have been undergone by the time the appeal is heard.
In the circumstances, particularly, since the appellant has undergone 8 years out of ten years of the total sentence which has been imposed on him, we are of the view that a fit and proper case has been made out for the suspension of the sentence under Section 389 CrPC.
The impugned order of the High Court is set aside - the sentence of the appellant shall remain suspended under Section 389 CrPC, subject to such terms and conditions as may be imposed by the Special Judge, NDPS, Patiala House Courts, New Delhi - appeal allowed.
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2021 (12) TMI 1387 - DELHI HIGH COURT
Appointment of an Arbitrator under the provisions of Sections 11(5) and (6) of the Arbitration and Conciliation Act, 1996 - time limitation - HELD THAT:- The two Judge Bench of the Hon’ble Supreme Court in DLF Home Developers Limited Vs. Rajapura Homes Private Limited and Another [2021 (9) TMI 1053 - SUPREME COURT] has observed that the jurisdiction of this Court under Section 11 is primarily to find out whether there exists a written agreement between the parties for resolution of disputes through arbitration and whether the aggrieved party has made out a prima facie arbitrable case.
Whether the claims raised by the petitioner are time barred or not? - HELD THAT:- The conjoint reading of Clauses-36 & 37 makes it clear that a party does have a right to seek enforcement of agreement before the Court of law but it does not bar settlement of disputes through Arbitration and Conciliation Act, 1996. Moreover, Clause-37 also suggests how arbitration proceedings shall be conducted and in the light thereof. Petitioners have already proposed name of Mr.Justice (Retd.) Kailash Gambhir and respondent in its reply has proposed name of Mr. Justice (Retd.) Manmohan Singh as the second Arbitrator. Even otherwise, once respondent has proposed the name of second Arbitrator, it cannot be permitted to take objection of delay and latches as well as application of Clause-36 to the Addendum Agreement dated 19.04.2011 to the present case.
This Court finds that the disputes inter se parties are arbitrable and can be adjudicated by the arbitral tribunal.
A part of petitioner’s land has been transferred by the respondent to a third party i.e. M/s MGF Developments Ltd. - petition disposed off.
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2021 (12) TMI 1383 - SIKKIM HIGH COURT
Refund of payments made as draw charges by the petitioner - Rule 3(11) of the Lotteries (Regulation) Rules, 2010 (2010 Rules) - HELD THAT:- In the present writ petition, neither the Organising States nor the distributor/selling agents have been made parties. The claim for refund is being made by the sole stockist of the distributor/selling agent. The sole stockist of the distributor/selling agent would have, under the scheme of the Act and the Rules, no hand in the pricing structure of the cost of the lottery tickets. It is settled that refund of this nature cannot be granted if the burden of the draw charges had been passed on to a third party or the ultimate consumer. Although the petitioners have filed affidavits stating that they had not passed on the burden, when it is for the Organising State to structure the pricing of the lottery tickets, it may not be possible to determine this lis without the Organising States and the distributor/selling agent. Further, the petitioner has sought to rely upon the agreements entered between the Organising States and the distributor/selling agent on the one hand and the agreement between the distributor/selling agent and the petitioner on the other without the parties to the agreement being brought before the Court.
The agreements relied upon by the petitioner has been perused for a prima facie view only. It appears that to determine whether or not the burden of draw charges paid by the petitioner on behalf of the Organising States had been passed on to the ultimate consumer it is necessary to examine the complex issue of pricing of the lottery tickets which may not be possible in a writ jurisdiction. Furthermore, the issue involved here also requires an interpretation of these agreements between parties not before this Court. The only thing certain is that the petitioner had paid the draw charges. The State respondents have also raised the issue of limitation and seriously contested it.
This Court is of the view that it would not be correct to decide the issues raised in writ jurisdiction. The writ petition, is therefore, dismissed.
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2021 (12) TMI 1382 - PUNJAB AND HARYANA HIGH COURT
Seeking grant of Regular Bail - siphoning of funds - benami properties - purchase of land in the name of their employees and agents, who are not actual beneficiaries - HELD THAT:- It is an admitted fact that none of the petitioners herein have been nominated as an accused either by CBI or ED, which agencies are also looking into the scam that has taken place at the behest of Chairman/Directors of the Company - It is also admitted fact that as on date, petitioners are in custody and the matter has already been investigated and the challan stands presented in a magisterial trial and therefore, question of interfering in the investigation by the petitioners would not arise. As far as the question of influencing the witnesses is concerned, it would be worthwhile to note that they would be official witnesses, who would be giving their testimony on the basis of documents already in their possession and therefore, possibility of influencing them is far off.
The apprehension raised by counsel appearing for the complainant that the land standing in the name of various persons (benami holders) is being sold, would be protected by the order passed by the Hon’ble Supreme Court on 25.07.2016 wherein there is a restraint order of any sale, transfer, alienation or even creation of third party interest on the land in any manner whatsoever and therefore, it would be open to the complainant to point out any such sale, transfer or alienation taking place to the investigating officer of current FIR.
The petitioners are directed to be released on regular bail on execution of personal bonds of ₹ 50,000/- and a surety of like amount in each case by each petitioner to the satisfaction of concerned trial Court/Duty Magistrate - Petition allowed.
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2021 (12) TMI 1371 - SUPREME COURT
Renewal of an existing insurance policy - duties of an insurer - HELD THAT:- The law in India is that unless the unilateral mistake about the terms of a contract is so serious as to adversely undermine the entire bargain, it does not result in automatic avoidance of a contract. Applied to the facts of this case, it is evident that the appellants could insist on the old insurance policy, on the premise that it renewed the pre-existing policy. The other conclusion would be cold comfort to the party seeking insurance cover, as the choice would be to avoid it altogether- too drastic as to constitute a choice - issue decided in favour of the appellants.
What are the duties of an insurer, when a policy holder seeks renewal of an existing policy? - HELD THAT:- In view of the state of law, which is, that the insurer was under a duty to disclose any alteration in the terms of the contract of insurance, at the formation stage (or as in this case, at the stage of renewal), the respondent cannot be heard to now say that the insured were under an obligation to satisfy themselves, if a new term had been introduced. If one considers the facts of this case, it is evident that the insurer had caused a renewal reminder, which was acted upon and the renewal cheque, issued by the appellant - The courts’ remedial power, to refuse enforcement of such contracts, or contractual terms, finds support in a few decisions of this Court.
There is no doubt that insurance business is run through brokers and agents. The role of an agent in this regard is to be examined. This Court has spelt out, in the context of insurance business the role of insurance agents and the liability or responsibility of insurance companies in the event of failure to discharge the duties cast upon agents, and the likely vicarious responsibility or liability of the insurer.
This Court is of the opinion that the findings of the State Commission and the NCDRC cannot be sustained. The insurer was clearly under a duty to inform the appellant policy holders about the limitations which it was imposing in the policy renewed for 2008-2009. Its failure to inform the policy holders resulted in deficiency of service. The impugned order of the NCDRC as well as the order of the State Commission are hereby set aside. The order of the District Forum is accordingly restored. Consequently, the appeal is allowed; in the circumstances of this case, the respondent shall bear additional costs, quantified at Rs.50,000/-.
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2021 (12) TMI 1370 - JAMMU AND KASHMIR HIGH COURT
Dismissal of application seeking permission to lead additional evidence at appellate stage - allegations against the petitioner in the complaint are that the sample of milk manufactured by his business concern, upon analysis of the sample take of his product, was found to be sub-standard, unsafe and misbranded by the Referral Food Laboratory, Kolkata - HELD THAT:- It ultimately is the discretion of the Appellate Court as to whether additional evidence can be permitted to be adduced at the appellate stage but such discretion has to be exercised on recognized principles evolved over a period of time by the case law on the subject. The only consideration which has to be kept in mind by the Appellate Court is to secure the ends of justice. However, the additional evidence cannot and ought not to be received in such a manner as to cause prejudice to any of the parties. It cannot be a re-trial and it is only the concept of justice which much prevail. The Appellate Court cannot allow additional evidence to be led just to fill up the lacuna at the appellate stage. The Court has also to see as to whether the evidence proposed to be led is relevant. The test to be applied is as to whether evidence sought to be advanced is essential for just decision of the case.
Adverting to the facts of the instant case, as already noted, petitioner proposes to examine witness, namely, Murtaza Ali, who is stated to have deposed about the procedure adopted during the course of sampling and sealing. The said statement has been made by the aforesaid witness in the departmental enquiry that was conducted pursuant to the orders of the trial court in the judgment which is subject matter of appeal before the Appellate Court. The question arises as to whether petitioner can be allowed to do so at the appellate stage.
So far as the opinion of the experts is concerned, the same is a relevant fact in terms of Section 45 of the Evidence Act. What the petitioner seeks to produce on record is opinion of an expert who has published a research paper on effects of Formalin on the test results of samples of milk. An expert is not a witness of fact and his evidence is really of an advisory character and his duty is to furnish court with scientific test criteria to test accuracy of conclusions. Based on such expert opinion and upon appreciation of the facts of a case, the court has to give its independent judgment. The court has not to subjugate its own judgment to that of expert. Nonetheless, opinion of an expert is a relevant fact.
Thus, it is concluded that the petitioner is seeking permission to produce evidence which is relevant to the issue pending before the Appellate Court and there was no occasion for the petitioner to produce this evidence during trial of the case as the same has come to his notice only after conclusion of the trial. The evidence sought to be introduced by the petitioner is not only necessary for the just decision of the appeal but shutting out the same would result in failure of justice. It is not a case where petitioner is trying to fill up the lacunae left during the trial of the case but it is a case where petitioner is trying to place on record the evidence which has come to his notice after the conclusion of trial and which has a definite bearing upon decision of the case.
Petition allowed.
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2021 (12) TMI 1357 - CALCUTTA HIGH COURT
Rectification of mistake - error apparent on the face of record - typographical error - HELD THAT:- In the 2nd last line of the 2nd paragraph of the first page of the order, the expression “the question jurisdiction on each raised by the petitioner before the Arbitral Tribunal” shall stand deleted and be placed with the expression “the petitioner shall participate in arbitration”.
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2021 (12) TMI 1356 - CALCUTTA HIGH COURT
Reference of disputes and differences to Arbitration under five several contracts - reference made by the Facilitation Council, MSME, under Sections 18(2) and 18(3) of the Micro, Small and Medium Enterprises Development Act, 2006 (MSMED Act) - applicability of MSMED Act to the Works Contract - legality of clubbing of five different contracts into one reference for adjudication - HELD THAT:- This Court is of the view that without prejudice to any of the rights and contentions of the writ petitioner, the question jurisdiction on each raised by the petitioner before the Arbitral Tribunal - The Tribunal shall decide on its jurisdiction on inter alia the questions raised by the writ petitioner before entering into other questions.
Petition disposed off.
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2021 (12) TMI 1342 - HIMACHAL PRADESH HIGH COURT
Dishonor of Cheque - applicability of doctrine of merger - amicable settlement of the dispute - compounding of offences - Section 147 of NI Act - power to review/recall own order/judgment - HELD THAT:- In Gulab Singh case [2017 (12) TMI 1837 - HIMACHAL PRADESH HIGH COURT], this Court finds that issue which arises in the case at hand stands duly adjudicated by this Court - it was held in the case that doctrine of merger does not apply in the case of dismissal of SLP.
In the case at hand, SLP having been filed by the petitioner/applicant herein came to be dismissed in limini by nonspeaking order and as such, does not result in the merger of impugned order with the order passed by the Hon’ble Supreme Court.
Whether this court after affirming the judgment of conviction and order of sentence recorded by court below can accept the prayer made on behalf of the accused to compound the offence while exercising power under Section 147 of the Act or not? - HELD THAT:- Bare perusal of Section 147 of the Act, reveals that notwithstanding anything contained in the Code of Criminal Procedure, 1973(2 of 1974), every offence punishable under this Act, shall be compoundable. Section 147 of the Act is in the nature of an enabling provision which provides for the compounding of offence prescribed under the same Act, thereby serving as an exception to the general rule incorporated in sub section (a) of Section 320 of the Code of Criminal Procedure, which otherwise state that “no offence shall be compounded except as provided by this section”, since section 147 was inserted by way of an amendment to a special law, the same will override the effect of sub section (a) of section 320 of the Code of Criminal procedure.
As per provisions of law judgment/order once singed cannot be altered or reviewed except to correct the clerical or arithmetical error, but expression used in the aforesaid provision of law i.e. “save as otherwise provided by this code or by any other law for the time being in force”, enables this Court to consider the prayer made on behalf of the accused for compounding the offence while exercising power under Section 147 of the Act. As has been observed hereinabove, section 147 empowers court to compound every offence punishable under this Act notwithstanding anything contained in the code of criminal procedure.
Hon’ble Apex Court in Damodar S. Prabhu versus Sayed Babalal H [2010 (5) TMI 380 - SUPREME COURT] has categorically held that offence punishable under Section 138 of the Act can be compounded even in those cases where accused stands already convicted.
Since accused after dismissal of her SLP in limini has agreed to make the entire payment of compensation awarded by Court below to the complainant and thereafter she has approached this Court in the instant proceedings, praying therein to compound the offence in terms of Section 147 of the Act, there appears to be no impediment in compounding the offence alleged to have been committed under Section 138 of the Act while exercising power under section 147 of the Act - this Court holds that review application filed after dismissal of Special Leave Petition, praying therein for recalling/modification of judgment dated 12.9.2019, passed by this Court in Criminal Revision, is maintainable and as such, parties are permitted to get the matter compounded in the light of the compromise arrived inter se them.
Application disposed off.
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2021 (12) TMI 1316 - DELHI HIGH COURT
Maintainability of application - application is predicated on the ground that the election petition read as a whole along with the documents filed, does not disclose a cause of action, and hence, ought to be rejected - whether the petition should be rejected at this stage without the matter going to trial? - HELD THAT:- As per the law which obtains at present the candidate who files his nomination is required, inter alia, to disclose his educational qualifications as also his past convictions including fines imposed, imprisonments suffered, acquittals/discharge, if any, obtained - Disclosure qua the aforesaid is in addition to the disclosure of information qua pending criminal case where a person if convicted, can be sentenced to imprisonment for two years or more, albeit, where charge is framed or cognizance is taken by Court of law, and information concerning the candidate's assets including those of the spouse and dependents as also liabilities, particularly, those related to the Government or public institutes.
One cannot quibble with the proposition that the registration of an FIR does not bring the matter adverted to therein, within the ambit of a pending criminal case. Mr. Srivastava is right when he says that a criminal case is said to be pending, either when the concerned Magistrate has taken cognizance under Section 190 of the Code of Criminal Procedure, 1973, or a charge sheet has been filed. Admittedly, the petitioner has neither made any assertion nor placed any document on record, in this behalf.
Merely because the May 2002 Academic Examination Result for Class X, concerning the applicant/respondent no. 1, does not align with the assertion made in the petition that the application/respondent no. 1 did not pass the examination of Class X in 2003 would not be a good enough reason to reject the petition. The averments made in this behalf have to be read in their entirety, and, therefore, the matter, in my view, needs to be tried.
Leave is granted to the petitioner to file a fresh affidavit in the prescribed form i.e., Form-25 [read with rule 94A of the 1961 Rules], within fifteen days from today - Application dismissed.
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2021 (12) TMI 1310 - BOMBAY HIGH COURT
Maintainability of petition - Grant of Bail - power of Court to stay its own order of grant of bail - power to stay bail order is incidental to power to grant bail or not - Section 21 of the National Investigation Agency Act, 2008 - HELD THAT:- The order impugned, though said to be "relatable" to bail, as argued by Mr. Singh, however, in terms of provisions of sub-section (4) of Section 21, it is not an order of a Special Court, either 'granting' or 'refusing' bail. The sub-section (4) envisage two kind of orders; one 'granting' and another 'refusing' bail. It does not specify third kind of order i.e. 'orders concerning or relating to bail" (emphasis supplied). Herein, the impugned order, not being order granting or refusing the bail, obviously it would not fall under sub-section (4) of Section 21 of the N.I.A. Act. That for these reasons, contention of the respondents that, Writ Petition was not maintainable, is rejected.
The Code of Criminal Procedure does not empower the Sessions Judge to stay the operation of his order of grant of bail. The provision which can be said to be the nearest to meet the situation is Section 439(2) of the Cr.P.C., 1973. However, in it's terms, it only empowers him, to direct any person who has been released on bail to be arrested and committed to the custody. No doubt, the High Court in exercise of its power under Section 482 Cr.P.C. can stay the operation of bail order where it finds it necessary to do so, to prevent abuse of process of the Court or to meet the ends of justice - the learned Judge could not have assumed the jurisdiction to stay its own order of grant of bail by taking recourse to Section 209 of the Cr.P.C. This being error in exercise of jurisdiction, the petition was perfectly maintainable. That even otherwise, the learned Sessions Judge has not justified the order by recording the reasons in suspending his own order.
The petition is allowed.
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2021 (12) TMI 1230 - CALCUTTA HIGH COURT
Dishonor of Cheque - acquittal of accused from the charge under Section 138 read with Section 141 of the Negotiable Instruments Act, 1881 - HELD THAT:- The Appellate Court shall be slow in interfering with the order of acquittal passed by the trial Court. If the evaluation of the evidence and the findings recorded by the trial Court do not suffer from any illegality or perversity and the grounds on which the trial Court has based its conclusion are reasonable and possible. The High Court should not disturb the order of acquittal if another view is possible merely because an Appellate Court on re-appreciation and re-evaluation of the evidence is inclined to take a different view, interference with the judgment of acquittal is not justified if the view taken by the trial Court is a possible view. However, the High Court in an appeal under Section 378 has full power to review at large the evidence on which the order of acquittal was founded and to reach the conclusion that upon the evidence on record, the order of acquittal should be reversed when the trial Court fails to appreciate the evidence on record lawfully in its true perspective or the order of acquittal suffers from patent legality and mala fide, the High Court has every authority to reverse the judgment of acquittal.
In the instant appeal, it is found on proper appreciation of evidence that the learned Magistrate erred in appreciating the evidence on record. She also fails to ascertain the fact of the complainant's case and illegally held that the complainant failed to prove that the cheque in question was issued by D.W.1 in discharge of a legally enforceable debt. She also failed to consider the law of presumption enunciated in Section 139 of the Negotiable Instruments Act in its true perspective.
Appeal allowed - decided in favor of appellant.
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2021 (12) TMI 1229 - PUNJAB & HARYANA HIGH COURT
Dishonor of Cheque - proclaimed offender or not - amicable settlement between the parties- continuation of proceedings under Section 174A I.P.C. - HELD THAT:- It is apparent that the present FIR in question had been registered on account of the petitioner having been declared as proclaimed person vide order dated 17.09.2019 passed by the SDJM in the proceedings under Section 138 of the Act of 1881 which were instituted in pursuance of the complaint filed by Satish Kumar and the said Satish Kumar had given a statement on 16.03.2020 (Annexure P- 4) to the effect that the matter has been compromised and there is nothing due towards the present petitioner and accordingly, vide order dated 16.03.2020, the complaint filed under Section 138 of the Act of 1881 was withdrawn.
Where the main case was dismissed for want of prosecution, it was observed that the continuation of proceedings under Section 174-A of the IPC shall be an abuse of the process of court.
Petition allowed.
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2021 (12) TMI 1228 - TELANGANA HIGH COURT
Dishonor of Cheque - legally enforceable debt or not - acquittal of the accused - Section 138 of Negotiable Instruments Act, 1881 - HELD THAT:- The trial Court rightly held that the cheque was not drafted by the accused and that the accused is not a rustic man or an illiterate and that if at all the accused issued the subject cheque towards discharge of legally enforceable debt, it should be for ₹ 1,24,000/- since the interest on the amount alleged to be borrowed was 24% per annum and that the circumstances reveal that Ex.P.1 cheque was not issued by the accused towards legally enforceable debt. Further, the admissions of the complainant in his evidence as P.W.1 clearly reveals that the complainant is doing money lending business without license in Telangana area. He did not file a single document to show that he was having a valid license to do money lending business.
The Explanation to Section 138 of N.I.Act clearly states that the dishonoured cheque shall relate to a legally enforceable debt or liability. In the instant case, since the complainant had no valid money lending business, he cannot legally enforce such a debt of liability. Under these circumstances, the Court below rightly concluded that the complainant is not entitled to prosecute the accused for the offence under Section 138 of N.I.Act and therefore, the accused is entitled for acquittal. The conclusions reached by the trial Court are based on evidence on record. There is nothing to take a different view. The accusations against the accused under Section 138 of N.I.Act are not proved beyond reasonable doubt. The contentions raised on behalf of the complainant do not merit consideration.
Criminal Appeal is dismissed.
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2021 (12) TMI 1146 - RAJASTHAN HIGH COURT
Dishonor of Cheque - insufficiency of funds - whether revisional powers can be exercised by this Court to compound the offence under Section 138 of the Act after conviction of the petitioner by appellate Court? - HELD THAT:- The legal position in this behalf was fluid until the judgment rendered in Damodar S. Prabhu Vs. Sayed Babalal H. [2010 (5) TMI 380 - SUPREME COURT] by the Supreme Court. In the said verdict, Supreme Court has examined the provisions of Section 138 and 147 of the Act threadbare and observed that compensatory aspect of the remedy should be given priority over the punitive aspect - While switching on to examine Section 147 of the Act, Supreme Court has observed that this being an enabling provision, it can serve as exception to the general rule incorporated in subsection ( 9) of Section 320 Cr.P.C. The Court, while laying emphasis on non-abstante clause under the aforesaid Section, further held that Section 147 inserted by way of amendment to special law will override the effect of Section 320(9) Cr.P.C.
Applying the ratio decidendi of Damodar S.Prabhu and the guidelines framed therein, on the strength of compromise arrived at between petitioner and the complainant, It is felt persuaded to exercise revisional jurisdiction for doing real and substantial justice in the matter for the administration of which alone the Courts exist.
Compounding of offence under Section 138 of the Act, obviously, entails acquittal of the petitioner - the instant revision petition is allowed.
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2021 (12) TMI 1107 - JHARKHAND HIGH COURT
Conspiracy - introduction of huge share capital through shell/paper companies in the books of the assessee companies - prosecution granted under Section 19 of the Prevention of Corruption Act - HELD THAT:- The materials which been collected during investigation prima-facie reveal that the assessment orders resulting in huge addition of income interalia, against the companies of the petitioner on account of unverifiable investors in the companies through shell companies were passed by the income tax authorities at Kolkata, appeals were also filed, but in absence of stay, orders for attachment of bank accounts were passed. The allegation is that a number of accused persons including the petitioner who is director of the two assessee companies as well as Tapas Kumar Dutta , the Chief Commissioner of Income Tax having jurisdiction for Ranchi and Hazaribagh conspired with each other to get rid of the demand raised at Kolkata in assessment proceedings and in furtherance thereof, the PANs and the records were transferred from Kolkata to Jharkhand , Revision petitions were filed under section 264 of Income Tax Act before Tapas Kumar Dutta during pendency of appeals at Kolkata. Thereafter, pending appeals at Kolkata were sought to be withdrawn by the petitioner but instead of permitting withdrawal, the appellate authority dismissed the appeals.
There are materials on record to show that the transfer of PANs and records from Kolkata to Jharkhand was itself a part of the conspiracy as no business or office of the companies actually existed in the place of their transfer to Jharkhand and the transfer was itself a device to facilitate the co-accused Tapas Kumar Dutta to enable him to pass orders in favour of the companies of the petitioner in which the petitioner was a director. The allegations reveal that huge investments were made in the companies of the petitioner by non-existing parties / shell companies - Volumes of transcripts of recorded conversations have been collected which reveal conversation amongst the accused persons although it has been argued by the learned counsel for the petitioner that the conversations do not involve the petitioner. This court is of the considered view that this is not the stage for scrutinizing the transcripts of recorded conversations in order to record any direct or indirect links of the petitioner with the alleged offence. Suffice is to say that there are sufficient incriminating materials and circumstances, collected against the petitioner during investigation, to constitute prima–facie case indicating involvement of the petitioner in the alleged offence.
This court finds that the learned court below has considered the totality of the materials collected during investigation to find prima-facie case against the petitioner. The petitioner has argued that the Tapas Kumar Dutta had acted as per the Income Tax Act and only remanded the case vide order passed under Section 264 of the Income Tax Act. This court is of the considered view that material on record prima-facie show that Tapas Kumar Dutta had misused his office and the official position to give undue favour to the petitioner in conspiracy with others and is a co-accused in this case for which sanction for prosecution has also been granted. The orders of remand passed under Section 264 of the Income Tax Act have the effect of nullifying the demand raised pursuant to the orders of assessments - the sanction for prosecution of Sri Tapas Kumar Dutta, the then Chief Commissioner of Income Tax, Ranchi has been granted under Section 19 of the Prevention of Corruption Act and a copy of the same has been produced by the opposite party before this court. It is not in dispute that the trial has already commenced.
There are no illegality or perversity or material irregularity in the impugned order of refusing to discharge the petitioner and also the impugned order framing charge against the petitioner. This court finds that the impugned orders are well reasoned orders based on materials on record and do not call for any interference in revisional jurisdiction of this court - the present revision petition is dismissed.
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2021 (12) TMI 1106 - PUNJAB & HARYANA HIGH COURT
Dishonor of Cheque - Effect of moratorium on proceedings u/s 138 of NI Act - Petitioner is a natural person - suspended director - HELD THAT:- The mandate occurring in Section 14 of the IBC, becoming animated, and, it also enabling the drawing of a further legal sequel, that when Clause- A of Sub Section 14(1) of the IBC, hence prohibits the institution of suits, or continuation of pending suits or continuation of pending proceedings against the corporate debtor. Therefore, statutory coinage carried therein, also covering proceedings drawn under Section 138 of the Negotiable Instruments Act.
Hon'ble Apex Court pronounced in case titled as P. MOHANRAJ & ORS. VERSUS M/S. SHAH BROTHERS ISPAT PVT. LTD. [2021 (3) TMI 94 - SUPREME COURT] taken a view that the moratorium provisions contained in Section 14 of the IBC Code, prohibit the continuation of proceedings drawn even under Section 138/141 of the Negotiable Instruments Act, against the corporate debtor, rather during the subjudice corporate insolvency resolution process.
The petition at hand, has been filed by one Vishnoo Mittal, who claims himself to be the suspended Director of the corporate entity, named as M/s Xalta Food and Beverates Pvt. Ltd. The learned counsel for the petitioner submits, that the clout of the moratorium, is omnibus, and, it also indemnifies, and, saves the liability, if any, of the petitioner herein. However, the afore made argument, cannot be accepted by this Court, as the Hon'ble Apex Court in judgment made a candid expostulation of law, that proceedings drawn under Section 138 of the Negotiable Instruments Act, though are covered by Section 14 of the IBC Code, but the afore drawn proceedings cannot rather continue only against the corporate debtor accused, but can continue against the erstwhile director/person incharge, and, responsible for the conduct of the business of the corporate debtor. Since the petitioner is a natural person, and, a suspended Director, and, hence falls within the domain of erstwhile director. Thereupon the immunity, as granted to a corporate debtor, cannot be extended to him.
Since the petitioner is not a juristic person, but is a natural person, and, though he is a suspended director, yet when he is an erstwhile director of the corporate entity concerned, rather prima facie, at the relevant stage of issuance, was incharge of, and, responsible for the company, and, of the business of the corporate debtor. Therefore, the issuances of summons against him, through the making of the impugned order, does not suffer from any illegality.
Petition dismissed.
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