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Indian Laws - Case Laws
Showing 41 to 60 of 952 Records
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2021 (12) TMI 1105 - CALCUTTA HIGH COURT
Restraint on invocation of a bank guarantee - alleged short-supply of goods - fraud or irrevocable injury or special equities which would vitiate the entire underlying transaction - HELD THAT:- Courts are usually slow to interfere with the transaction between a bank and the beneficiary which is seen as being independent of the underlying contract between the lender and the supplier unless conditions call for such interference. The three conditions, as accepted in several decisions, are fraud of an egregious nature; special equities or the invocation not being in terms of the bank guarantee. It is sufficient if a party seeking a restraint on the invocation is able to establish any one of the three requirements. The test of special equity or irrevocable injustice is a matter of an assessment by a court on the particular facts presented to it for stay on a notice of invocation. The injury or injustice must be irrevocable, irremediable and irreversible
In the present case, the petitioner has satisfied two of the three ingredients, namely special equity and the invocation not being in terms of the guarantee. The clauses in the contract and more particularly the GCC clearly demonstrate that the bank guarantee was furnished towards performance security. There can be no issue with regard to performance since the petitioner has already received 90% of the contract price as discussed above. The invocation letter also demonstrates that there cannot be any performance issue with regard to the supplies effected by the petitioner. The invocation letter does not contain any allegation of a breach of performance obligations by the petitioner. The special equity also stands satisfied by reason of the petitioner facing an immediate and irreversible financial loss if the payment is made by Citibank NA, Dhaka to the respondent No. 1 in terms of the Letter of Invocation.
Application disposed off.
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2021 (12) TMI 1097 - DELHI HIGH COURT
Cancellation of contract for providing healthcare, kitchen and dietary services - petitioners have been blacklisted for a period of two years - HELD THAT:- Given the facts of the case, the explanation advanced by the petitioner for being unaware that its GST registration had been cancelled, does not inspire confidence. In these circumstances, keeping in view the manner in which the petitioner secured the contract with the respondent, while there are no infirmity in the respondent’s decision to terminate its contract with the petitioner, it is found that respondent’s decision to blacklist the petitioner for a period of two years wholly unwarranted. For one, it is a well-known fact that the economy has suffered a major setback ever since the onset of the COVID-19 pandemic and small business, such as the petitioner, are bearing the brunt of this.
There are no reason to doubt the petitioner’s explanation for the financial difficulties that occasioned the default in paying returns and eventually led to the suspension and cancellation of its GST registration.
Small proprietorships, such as the petitioner’s, are already flailing in this economy and finding it hard to survive and the respondent, being a State, cannot be blind to this reality. Permitting a punitive action of this nature to continue would deal a greater blow to the survival of small businesses such as the petitioner. After all, as the petitioner has rightly contended, at the time when the impugned order was passed, the entire basis for the respondent’s grievance with the petitioner – that the GST Department had cancelled its registration – stood resolved under the directions of the learned Appellate Authority.
The respondent ought to re-consider the decision to blacklist the petitioner and, while doing so, duly take into account the significant fact that the GST Department has itself adopted a compassionate view towards the prevailing circumstances and the strata to which the petitioner and its sole proprietor belong - the impugned order is set aside to the extent that it blacklists the petitioner for a period of two years. The respondent shall reconsider this aspect, by taking into consideration the observations made by this Court today.
Petition disposed off.
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2021 (12) TMI 1008 - DELHI HIGH COURT
Dishonor of Cheque - execution of guarantee deeds by the petitioner prior to issuance of cheques in question - vicariously liability of Director for the offence under Section 138 read with Section 141 NI Act - resignation tendered to the accused company prior to issuance thereof - HELD THAT:- It is no longer res integra that to attract vicarious liability under Section 141 NI Act against any person, the accused person should have been in-charge and responsible for the conduct of the business of the accused company at the time of commission of offence. A person who was not a Director, and/or not in-charge of the affairs of the accused company or for the conduct of the business thereof, at the time when the offence was committed, cannot be held vicariously liable - To make a Director of a company vicariously liable under Section 141 NI Act, specific allegations have to be made out against him in the complaint.
Considering that Section 141 NI Act is a deeming provision, whereby liability is attributed to Directors who were in-charge and responsible for the affairs of the accused company “at the time when the offence was committed”, it is discernible that regardless of a guarantee deed being executed as part of the impugned transaction, no criminal liability would be attributable to a Director of the accused company who executed such deed if he resigned therefrom prior to the issuance of the cheques in question.
The petitioner had executed personal guarantee deeds dated 17.05.2011 and 18.06.2013. As the aforementioned relied-upon documents indicate, he ceased to be associated with the accused company as a Director with effect from 28.02.2014, whereas the cheques in question were issued only thereafter, i.e., from 30.03.2014 to 31.01.2016. Admittedly, the cheques were signed by respondent No. 3, who, as per the averment made in the complaints, alone undertook that the same would be duly honoured upon presentation. Such an undertaking/assurance was not attributed to the present petitioner. In this backdrop, the execution of guarantee deeds by the petitioner at an earlier point in time would not attract vicarious liability under Sections 138/141 NI Act. Besides, there is nothing on record to indicate that the petitioner was in-charge of and responsible for the conduct of the affairs of the accused company at the time of the commission of the offence under Sections 138/141 NI Act.
This Court is of the opinion that the summoning orders against the petitioner are liable to be set aside - Petition allowed - decided in favor of petitioner.
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2021 (12) TMI 1007 - PUNJAB & HARYANA HIGH COURT
Dishonor of Cheque - during the pendency of the appeal, there was compromise which had been arrived at between the parties - major part of amount agreed, was duly paid - HELD THAT:- It is apparent that both the contesting parties are ad idem that the compromise has been effected between the parties without any pressure, threat or undue influence and the terms of the said compromise have been duly complied with. The compromise would go a long way in maintaining the peace and harmony between the parties and thus, a prayer has been made to the Court for compounding the offence in terms of Section 147 of the Negotiable Instruments Act, 1881 read with Section 320 (6) Cr.P.C. Since the offence relating to dishonour of cheque has a compensatory profile and is required to have precedence over punitive mechanism, therefore, the present revision petition deserves to be allowed.
Petition allowed.
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2021 (12) TMI 1006 - GAUHATI HIGH COURT
Territorial Jurisdiction - Seeking transfer of the criminal proceedings of a complaint case - ground raised is of inconvenience - Section 407 of the Code of Criminal Procedure, 1973 - HELD THAT:- The provision of Section 407 of the Code has provided power to the High Court to transfer cases and appeals. It is laid down therein that whenever it is made to appear to the High Court [a] that a fair and impartial inquiry or trial cannot be had in any Criminal Court subordinate thereto, or [b] that some question of law of unusual difficulty is likely to arise; or [c] that an order under the section is required by any provision of this Code, or will tend to the general convenience of the parties or witnesses, or is expedient for the ends of justice, then the Court may inter alia order that any particular case be transferred from a Criminal Court subordinate to its authority to any other such Criminal Court of equal or superior jurisdiction.
In the case in hand, the petitioner has not raised any apprehension regarding any unfair and partial trial nor regarding any question of law of unusual difficulty which is likely to arise in the complaint under Section 138 r/w 142 of the Negotiable Instruments Act. The only ground that the petitioner has raised is with regard to the inconvenience he likely to face in attending the trial at Jorhat by travelling from his village of residence at Tingkhong, which is situated at a distance of approx. 160 KMs to Jorhat - In the case in hand, the petitioner has not pleaded any physical disability to travel the distance of approx. 160 KMs from his place of residence to Jorhat i.e. the place of trial. The petitioner has claimed himself to be as an agriculturist. The petitioner has declared his age as 38 years. The learned counsel for the parties at the Bar has submitted that the transportation facility from Dibrugarh to Jorhat is good. An able bodied person can complete to and fro journey from Dibrugarh to Jorhat and vice versa within the day. There are different modes of public transport like bus, rail, light motor vehicles, etc. are available at small intervals.
The ground of inconvenience that has been urged on behalf of the petitioner does not deserve acceptance - Petition dismissed.
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2021 (12) TMI 1005 - HIMACHAL PRADESH HIGH COURT
Dishonor of Cheque - Discharge of legally enforceable debt or not - actual person to whom the cheque is issued - acquittal of the accused - rebuttal of presumption - cross-examination of witnesses - HELD THAT:- Perusing the material available on record vis-à-vis reasoning assigned by learned Courts below, while holding accused guilty of having committed offence punishable under 138 of the act, this court finds it difficult to agree with learned counsel for the petitioner that the learned courts below have failed to appreciate the evidence in right perspective rather, close scrutiny of evidence and pleadings clearly reveals that both learned courts below have dealt with each and every aspect of the matter meticulously and no scope is left for interference by this court - Interestingly, in the case at hand, there is no denial on the part of accused with regard to issuance of cheque as well as his signatures thereupon. He has categorically stated in the statement recorded under S. 313 CrPC, that he had not issued cheque in question to the complainant but to his son-in-law, who further gave it to the complainant as security.
Once there is no denial of issuance of cheque and signatures thereupon, presumption as available under Ss. 118 and 139 comes into play. Section 118 and 139 of the Act clearly provide that it shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in section 138 for the discharge, in whole or in part, of any debt or other liability - True, it is that to rebut aforesaid presumption accused can always raise probable defence either by leading some positive evidence or by referring to the material, if any adduced on record by the complainant.
The Hon'ble Apex Court in M/S LAXMI DYECHEM VERSUS STATE OF GUJARAT & ORS. [2012 (12) TMI 106 - SUPREME COURT], has categorically held that if the accused is able to establish a probable defence which creates doubt about the existence of a legally enforceable debt or liability, the prosecution can fail. To raise probable defence, accused can rely on the materials submitted by the complainant. Needless to say, if the accused/drawer of the cheque in question neither raises a probable defence nor able to contest existence of a legally enforceable debt or liability, statutory presumption under Section 139 of the Negotiable Instruments Act, regarding commission of the offence comes into play.
In the case at hand, complainant with a view to prove his case examined himself as CW-1 and successfully proved on record contents of the complaint. Cross-examination conducted upon this witness nowhere suggests that the opposite party was able to extract anything contrary to what he stated in his examination-in-chief - witness admitted that the house of accused is situate near Kali Bari Temple, Shimla. While admitting the suggestion that he has not cited his wife as witness, he feigned ignorance that the cheque has been filled in two different inks. This witness self-stated that the cheque was filled in by the accused himself. This witness denied the suggestion that he has misused the cheque.
Careful perusal of the statement of the accused clearly reveals that he has not denied issuance of cheque and his signatures thereupon, rather, his simple defence is that the cheque in question was issued to one Rajan, his son-in-law, who was to further hand over the cheque to someone from whom he had taken ₹ 25,000/-. There is no explanation that in case cheque was issued to Rajan, how it reached complainant. It is not the case of the accused that Rajan, had borrowed ₹ 25,000/- from the complainant and he had handed over cheque to the complainant as security.
The present revision petition is dismissed being devoid of any merit - decided against petitioner.
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2021 (12) TMI 1004 - TELANGANA HIGH COURT
Dishonor of Cheque - insufficiency of funds - vicarious liability of Managing Director - Sections 138, 141 and 142 of the NI Act read with Section 420 IPC - HELD THAT:- The complaint was filed under Sections 138, 141 and 142 of the NI Act read with Section 420 IPC against A1 to A5. A5 is the Company shown as represented by its Managing Director Gade Manikumar - A1. The description or status of A2 to A4 was not mentioned in the compliant. It was only mentioned that A1 in his reply letter admitted that he and the Executive Director, petitioner- A3, were working on raising funds and settling the issue. The learned counsel for the petitioner filed Form-32 wherein A1 was shown as the Managing Director of the company, one Srikanth Akkina S/o. Venkata Raju Akkina as Director and the name of A2 as one of the Director and A4 as Additional Director. The cheque filed by the petitioner would disclose that it was issued by A1 in the capacity of the Managing Director of A5 company. Thus, the complaint or the documents filed would not disclose that the petitioner was neither the Director of the company nor issued the cheque on behalf of A5 - The name of the petitioner was not found anywhere in the said bond. Nowhere in the complaint, it was mentioned that the petitioner was responsible for the affairs of the company or that he issued the cheque.
The Hon'ble Apex Court in National Small Industries Corporation Limited case [2010 (2) TMI 590 - SUPREME COURT] held that not every person connected with the company, but only those in-charge of and responsible for conduct of business of the company at the time of commission of offence were vicariously liable.
Considering the citation and as no specific averments were made by the 1st respondent as to how and in what manner the petitioner was responsible for the affairs of the company and the role played by him in cheating the complainant, and as there are no specific averments that the petitioner had induced or made the 1st respondent to part with the said money with an intention to cheat him from the inception, it is considered fit to quash the proceedings against the petitioner - A3.
Petition allowed - decided in favor of petitioner.
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2021 (12) TMI 1003 - CALCUTTA HIGH COURT
Dishonor of Cheque - cheque issued under duress or not - whether petitioner nos.2 and 3 are in no way related to the firm represented by the petitioner no.1 and are residents of Pune? - HELD THAT:- In view of the decision of the Hon’ble Supreme Court in SUNIL TODI & ORS. VERSUS STATE OF GUJARAT & ANR. [2021 (12) TMI 175 - SUPREME COURT] it would not be mandatory on the part of the Magistrate to hold an enquiry under Section 202 (2) of the Criminal Procedure Code as specified in Section 145 of the N.I. Act. However, the petitioners have a legal right to assail a proceeding initiated against them in the form of complaint before the Court of a Magistrate.
The matter be listed on 20.01.2022 for filing affidavit of service and affidavit in opposition, if any.
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2021 (12) TMI 951 - RAJASTHAN HIGH COURT
Termination from the post of Computer Operator in the office of Commissioner, Income Tax - II, Jodhpur - seeking direction for not replacing them by any other source except by way of regular appointment - claim of the petitioner is that when similarly situated persons in compliance of the order dated 29.10.2012 were permitted to join the office, denial of indulgence to him in joining duties is discriminatory, illegal and unwarranted - HELD THAT:- The petitioner has made an attempt to reagitate the issue which was concluded by the learned Tribunal with dismissal of his contempt petition in the year 2017. Not only that, the Tribunal has specifically stated that the conduct of the petitioner does not entitle him for grant of prayer requested by him on account of the fact that he never showed any willingness to resume duties in the office of respondent which is reflected from the fact that inspite of passing of favorable order by learned CAT on 29.10.2012, he has never appeared at the office nor did he file any execution application or raise any grievance.
The act of petitioner in approaching the Tribunal after six years is time barred as per the provisions of Section 21 and 27 of Act of 1985.
The application filed by the petitioner before the Tribunal was rightly dismissed and not entertained.
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2021 (12) TMI 898 - DELHI HIGH COURT
Dishonor of Cheque - grant of interim compensation - proof of a document or admissibility of a document in evidence which is tendered along with a list of documents or along with an affidavit in lieu of examination-in-chief - HELD THAT:- The verdict of the Hon’ble High Court of Punjab & Haryana in JOGINDER SINGH VERSUS ANURAG MALIK [2015 (2) TMI 1366 - PUNJAB AND HARYANA HIGH COURT], in relation to proceedings under Section 138 of the NI Act, 1881 observes categorically to the effect that in case the petitioner who was facing proceedings under Section 138 of the NI Act, 1881 in case of a dishonoured cheque seeks to establish some documents, it would be open to the petitioner to avail the benefit of the provisions of Section 294(3) of the Cr.P.C., 1973.
It becomes apparent that the provision of Section 143A of the NI Act, 1881 has essentially to be held to be “directory’ and cannot be termed to be “mandatory’ to the effect that the Trial Court has mandatorily to award the interim compensation under Section 143A of the NI Act, 1881 in all proceedings tried under Section 138 of the NI Act, 1881 on the mere invocation thereof by a complainant and thereby order in terms of Section 143A(2) thereof, the interim compensation to the tune of 20% of the amount of the cheque invoked. 52. The applicability of Section 294 of the Cr.P.C., 1973 has been made essential in all proceedings in criminal trials and undoubtedly, the proceedings under Section 138 of the NI Act, 1881 are termed to be quasi criminal in nature.
The observations of the learned Trial Court to the effect that even if it be assumed that the provisions of Section 143A of the NI Act, 1881 is discretionary in nature, the Court is still clothed with the powers to grant interim compensation to the complainant after providing sufficient reasons, it is essential to observe that the award of interim compensation in terms of Section 143A of the NI Act, 1881 has to be after providing sufficient reasons and whilst taking the same into account, the determination of interim compensation directed to be paid by the petitioners herein to the extent of the maximum of 20% of the cheque amount to the complainants without even considering the submissions that have been sought to be raised by the petitioners in relation to bank statements of the complainant and without resorting to the provisions of Section 294 of the Cr.P.C., 1973 cannot be held to be within the contours of Section 143A of the NI Act, 1881 to be with sufficient reasons - there are no inherent powers conferred on a criminal court of a Magistrate dehors enabling provisions of a statute.
Matter remanded back to the learned Trial Court to dispose of the application under Section 143A of the NI Act, 1881 filed by the complainants of the said complaint cases seeking interim compensation from the accused after invocation of Section 294 of the Cr.P.C., 1973 - Application disposed off.
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2021 (12) TMI 897 - KARNATAKA HIGH COURT
Dishonor of cheque - insufficiency of funds - complaint filed having no jurisdiction to try the case as contended by the revisional petitioner - revisional jurisdiction with regard to legality and correctness of the judgment of respective courts.
Whether the Court in which the complaint is filed is having no jurisdiction to try the case as contended by the revisional petitioner? - HELD THAT:- The proviso of section 142(2) is very clear that offence under section 138 shall be inquired into and tried only by a Court within whose local jurisdiction, a) if the cheque is delivered for collection through an account, the branch of the bank where the payee or holder in due course, as the case may be, maintains the account, is situated; or b) if the cheque is presented for payment by the payee or holder in due course, otherwise through an account, the branch of the drawee bank where the drawer maintains the account, is situated and also explanation is clear that where a cheque is delivered for collection at any branch of the bank of payee or holder in due course, then, the cheque shall be deemed to have been delivered to the branch of the bank in which the payee or holder in due course, as the case may be, maintains the account. When such amendment was brought in 2015 and inserted section 142(2) of the NI Act, the very contention of the petitioner that the Bijapur Court is not having jurisdiction to try the complaint filed for the offence under section 138 of NI Act, cannot be accepted.
P.W.1 also categorically given admission that cheque was presented at Bijapur Axis Bank and also endorsement was given by the bank of the petitioner in respect of Axis Bank in terms of Ex. P.2. It is suggested that he has falsely deposed that cheque is presented at Axis Bank and the same was categorically denied. Hence, having taken note of all these materials available on record, the very contention of the petitioner cannot be accepted - answered in negative.
Whether the Courts below have committed an error in convicting and sentencing the petitioner herein and it requires revisional jurisdiction with regard to legality and correctness of the judgment of respective courts? - HELD THAT:- Regarding exercising of revisional power by the Court is concerned, the same is also limited, the Court has to exercise revisional power only if the judgment of conviction and sentence which is affirmed by the appellate Court is not in conformity with the legality and correctness of the judgment and both the orders suffer from illegality and correctness of the order, only then the Court can exercise revisional jurisdiction - once signed cheque is delivered, the contention of the accused cannot be accepted and he has to rebut the case of the complainant. In the case on hand, the accused has not rebutted the evidence of complainant by leading any defence evidence. No doubt, the accused cross examined the witness P.W.1 to rebut his evidence by way of cross-examination of P.W.1 and the same is also not done with regard to transaction is concerned and the counsel mainly has concentrated with regard to jurisdiction while cross-examining P.W.1. - there are no reason to exercise revisional jurisdiction and hence, there are no merit in the revision petition.
The revision petition is dismissed.
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2021 (12) TMI 896 - MADRAS HIGH COURT
Dishonor of Cheque - legally enforceable debt or not - rebuttal presumption or not - Section 139 of the Negotiable Instrument Act - HELD THAT:- It is observed by the Courts below that the complainant has admitted in his evidence that he filed a complaint against Pandurangan for the offence under Sec. 138 of N.I. Act and subsequently his father discharged the said loan. Under such circumstances the natural human conduct would be to get back all the filled or unfilled cheques issued to the respondent. If the petitioner claims that the impugned cheque is the one given by his father, some steps ought to have been taken to recover the cheque immediately after his father discharged the loan.
Since no such materials produced before the Court, the trial Court was not able to accept the contention of the petitioner that the cheque was issued by the father of the petitioner only by way of security. In the absence of any rebuttal proof the initial presumption that was taken in favour of the respondent will become the conclusive proof. Since it is not proved by the petitioner that the cheque in question has been issued by way of security, the Courts below held that the petitioner has issued the cheque only for a legally enforceable debt and he is guilty for the offence under Section 138 of Negotiable Instruments Act.
The Criminal Revision Case stands dismissed.
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2021 (12) TMI 895 - CHHATTISGARH HIGH COURT
Dishonor of Cheque - failure to prove the debt - Acquittal of respondent from the charges framed under Section 138 of the Negotiable Instrument Act - HELD THAT:- The trial Court has rightly arrived to the conclusion that the complainant has failed to prove the debt of the complaint. This Court also confirm the said conclusion drawn by the trial Court that the transactions between the complainant and the accused are not clear and the complainant has also failed to produce the evidence about source of money.
The judgment of acquittal passed by the trial Court is not perverse, illegal and improper and the same does not call for any interference - Petition dismissed.
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2021 (12) TMI 894 - HIMACHAL PRADESH HIGH COURT
Dishonor of Cheque - insufficiency of funds - compounding of offences - section 147 of NI Act - HELD THAT:- Since entire amount of compensation awarded by the court below has been paid or agreed to be paid by the petitioner to the complainant, this Court sees no impediment in accepting the prayer made on behalf of the petitioner for compounding of offence while exercising power under Section 147 of the Act as well as in terms of guidelines issued by the Hon'ble Apex Court in Damodar S. Prabhu V. Sayed Babalal H. [2010 (5) TMI 380 - SUPREME COURT], wherein it has been categorically held that court, while exercising power under Section 147 of the Act, can proceed to compound the offence even after recording of conviction by the courts below.
Present matter is ordered to be compounded and impugned judgments of conviction and sentence dated 19.2.2014 and 16/30.12.2011, passed by the courts below are quashed and set-aside and the petitioner-accused is acquitted of the charge framed against him under Section 138 of the Act - Petition disposed off.
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2021 (12) TMI 893 - HIMACHAL PRADESH HIGH COURT
Dishonor of Cheque - insufficiency of funds - discharge of legally enforceable liability or cheque issued as security - rebuttal of presumption u/s 118 and 139 of NI Act - HELD THAT:- Section 139 of the Act provides that it shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in section 138 for the discharge, in whole or in part, or any debt or other liability. Similarly, Section 118 of the Act provides that unless contrary is proved , that the holder of the cheque received the cheque in discharge, in whole or in part, of a debt or liability. True, it is that to rebut aforesaid presumption accused can always raise probable defence either by leading some positive evidence or by referring to the material, if any adduced on record by the complainant. But in the case at hand, accused has miserably failed to raise probable defence much less sufficient to rebut the presumption applicable in favour of the complainant under Section 118 and 139 of the Act.
This Court sees no reason to interfere with the well reasoned judgments passed by the courts below, which otherwise appear to be based upon the correct appreciation of evidence and as such, same need to be upheld. Moreover, this Court has a very limited jurisdiction under Section 397 of the Cr.PC, to re-appreciate the evidence, especially, in view of the concurrent findings of fact and law recorded by the courts below.
Since after having carefully examined the evidence in the present case, this Court is unable to find any error of law as well as fact, if any, committed by the courts below while passing impugned judgments, and as such, there is no occasion, whatsoever, to exercise the revisional power - this court is convinced and satisfied that complainant has successfully proved by leading cogent and convincing evidence that he advanced ₹ 1.50 Lakh to the accused, who with a view to discharge his lawful liability, issued cheque in question, but the same came to be dishonored on account of insufficient funds in his account. Since despite issuance of legal notice, accused failed to make good the payment , learned court below totality of evidence led on record by the complainant, rightly held accused guilty of having committed offence punishable under S.138 of act and as such, no interference in the impugned judgment/order of conviction and sentence is called for. Moreover, this court, after issuance of notice dated. 14.10.2019, repeatedly granted opportunity to the petitioner/accused to deposit the amount but neither he furnished personal bonds nor deposited amount.
Impugned judgment/order of conviction and sentence passed by learned Courts below are upheld - Petition dismissed.
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2021 (12) TMI 892 - SUPREME COURT
Refund of the investment made along with interest to allottees under Section 31 of of The Real Estate(Regulation and Development) Act, 2016 and The Uttar Pradesh Real Estate(Regulation and Development) Rules, 2016 - impugned orders came to be passed by the single member of the authority on the complaint instituted at the instance of the home buyers/allottees after hearing the parties with the direction to refund the principal amount along with interest(MCLR + 1%) as prescribed by the State Government under the Act.
Whether the Act 2016 is retrospective or retroactive in its operation and what will be its legal consequence if tested on the anvil of the Constitution of India? - HELD THAT:- The clear and unambiguous language of the statute is retroactive in operation and by applying purposive interpretation rule of statutory construction, only one result is possible, i.e., the legislature consciously enacted a retroactive statute to ensure sale of plot, apartment or building, real estate project is done in an efficient and transparent manner so that the interest of consumers in the real estate sector is protected by all means and Sections 13, 18(1) and 19(4) are all beneficial provisions for safeguarding the pecuniary interest of the consumers/allottees. In the given circumstances, if the Act is held prospective then the adjudicatory mechanism under Section 31 would not be available to any of the allottee for an ongoing project. Thus, it negates the contention of the promoters regarding the contractual terms having an overriding effect over the retrospective applicability of the Act, even on facts of this case - The legislative power to make the law with prospective/retrospective effect is well recognized and it would not be permissible for the appellants/promoters to say that they have any vested right in dealing with the completion of the project by leaving the allottees in lurch, in a helpless and miserable condition that at least may not be acceptable within the four corners of law.
From the scheme of the Act 2016, its application is retroactive in character and it can safely be observed that the projects already completed or to which the completion certificate has been granted are not under its fold and therefore, vested or accrued rights, if any, in no manner are affected. At the same time, it will apply after getting the ongoing projects and future projects registered under Section 3 to prospectively follow the mandate of the Act 2016.
Whether the authority has jurisdiction to direct return/refund of the amount to the allottee under Sections 12, 14, 18 and 19 of the Act or the jurisdiction exclusively lies with the adjudicating officer under Section 71 of the Act? - HELD THAT:- The opening words of Section 71(1) of the Act make it clear that the scope and functions of the adjudicating officer are only for “adjudging compensation” under Sections 12, 14, 18 and 19 of the Act. If the legislative intent was to expand the scope of the powers of the adjudicating officer, then the wording of Section 71(1) ought to have been different. On the contrary, even the opening words of Section 71(2) of the Act make it clear that an application before the adjudicating officer is only for “adjudging compensation”. Even in Section 71(3) of the Act, it is reiterated that the adjudicating officer may direct “to pay such compensation or interest” as the case may be as he thinks fit, in accordance with provisions of Sections 12, 14, 18 and 19 of the Act. This has to be seen together with the opening words of Section 72 of the Act, which reads “while adjudging the quantum of compensation or interest, as the case may be, under Section 71, the adjudicating officer shall have due regards” to the broad parameters to be kept in mind while adjudging compensation to be determined under Section 71 of the Act - If there is any breach or violation of the provisions of Sections 12, 14, 18 and 19 of the Act by the promoter, such a complaint straightaway has to be filed before the regulatory authority. What is being referable to the adjudicating officer is for adjudging compensation, as reflected under Section 71 of the Act and accordingly rules and regulations have been framed by the authority for streamlining the complaints which are made by the aggrieved person either on account of violation of the provisions of Sections 12, 14, 18 and 19 or for adjudging compensation and there appears no question of any inconsistency being made, in the given circumstances, either by the regulatory authority or the adjudicating officer.
If the adjudication under Sections 12, 14, 18 and 19 other than compensation as envisaged, if extended to the adjudicating officer as prayed that, may intend to expand the ambit and scope of the powers and functions of the adjudicating officer under Section 71 and that would be against the mandate of the Act 2016.
Whether Section 81 of the Act authorizes the authority to delegate its powers to a single member of the authority to hear complaints instituted under Section 31 of the Act? - HELD THAT:- The express provision of delegation of power under the SEBI Act is akin to Section 81 of the Act 2016. This Court observed that if the power has been delegated by the competent authority under the statute, such action, if being exercised by a single member cannot be said to be dehors the provisions of the Act - Section 81 of the Act 2016 empowers the authority, by general or special order in writing, to delegate its powers to any member of the authority, subject to conditions as may be specified in the order, such of the powers and functions under the Act. What has been excluded is the power to make regulations under Section 85, rest of the powers exercised by the authority can always be delegated to any of its members obviously for expeditious disposal of the applications/complaints including complaints filed under Section 31 of the Act and exercise of such power by a general and special order to its members is always permissible under the provisions of the Act.
In the instant case, by exercising its power under Section 81 of the Act, the authority, by a special order dated 5th December, 2018 has delegated its power to the single member of the authority to exercise and decide complaints under Section 31 of the Act and that being permissible in law, cannot be said to be de hors the mandate of the Act. At the same time, the power to be exercised by the adjudicating officer who has been appointed by the authority in consultation with the appropriate Government under Section 71 of the Act, such powers are nondelegable to any of its members or officers in exercise of power under Section 81 of the Act - In view of the remedial mechanism provided under the scheme of the Act 2016, the power of delegation under Section 81 of the Act by the authority to one of its member for deciding applications/complaints under Section 31 of the Act is not only well defined but expressly permissible and that cannot be said to be dehors the mandate of law.
Whether the condition of predeposit under proviso to Section 43(5) of the Act for entertaining substantive right of appeal is sustainable in law? - HELD THAT:- It is indeed the right of appeal which is a creature of the statute, without a statutory provision, creating such a right the person aggrieved is not entitled to file the appeal. It is neither an absolute right nor an ingredient of natural justice, the principles of which must be followed in all judicial and quasi judicial litigations and it is always be circumscribed with the conditions of grant. At the given time, it is open for the legislature in its wisdom to enact a law that no appeal shall lie or it may lie on fulfilment of precondition, if any, against the order passed by the Authority in question - the obligation cast upon the promoter of predeposit under Section 43(5) of the Act, being a class in itself, and the promoters who are in receipt of money which is being claimed by the home buyers/allottees for refund and determined in the first place by the competent authority, if legislature in its wisdom intended to ensure that money once determined by the authority be saved if appeal is to be preferred at the instance of the promoter after due compliance of predeposit as envisaged under Section 43(5) of the Act, in no circumstance can be said to be onerous as prayed for or in violation of Articles 14 or 19(1)(g) of the Constitution of India.
Whether the authority has power to issue recovery certificate for recovery of the principal amount under Section 40(1) of the Act? - HELD THAT:- It is settled principle of law that if the plain interpretation does not fulfil the mandate and object of the Act, this Court has to interpret the law in consonance with the spirit and purpose of the statute. There is indeed a visible inconsistency in the powers of the authority regarding refund of the amount received by the promoter and the provision of law in Section 18 and the text of the provision by which such refund can be referred under Section 40(1). While harmonising the construction of the scheme of the Act with the right of recovery as mandated in Section 40(1) of the Act keeping in mind the intention of the legislature to provide for a speedy recovery of the amount invested by the allottee along with the interest incurred thereon is selfexplanatory. However, if Section 40(1) is strictly construed and it is understood to mean that only penalty and interest on the principal amount are recoverable as arrears of land revenue, it would defeat the basic purpose of the Act.
Taking into consideration the scheme of the Act what is to be returned to the allottee is his own life savings with interest on computed/quantified by the authority becomes recoverable and such arrear becomes enforceable in law. There appears some ambiguity in Section 40(1) of the Act that in our view, by harmonising the provision with the purpose of the Act, is given effect to the provisions is allowed to operate rather running either of them redundant, noticing purport of the legislature and the abovestated principle into consideration, it is made clear that the amount which has been determined and refundable to the allottees/home buyers either by the authority or the adjudicating officer in terms of the order is recoverable within the ambit of Section 40(1) of the Act.
The upshot of the discussion is that we find no error in the judgment impugned in the instant appeals - appeal disposed off.
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2021 (12) TMI 843 - SUPREME COURT
Levy of additional surcharge leviable under Section 42(4) of the Electricity Act, 2003 - captive consumers/captive users are liable to pay or not - HELD THAT:- Ordinarily, a consumer or class of consumers has to receive supply of electricity from the distribution licensee of his area of supply. However, with the permission of the State Commission such a consumer or class of consumers may receive supply of electricity from the person other than the distribution licensee of his area of supply, however, subject to payment of additional surcharge on the charges of wheeling as may be specified by the State Commission to meet the fixed cost of such distribution licensee arising out of his obligation to supply. There is a logic behind the levy of additional surcharge on the charges of wheeling in such a situation and/or eventuality, because the distribution licensee has already incurred the expenditure, entered into purchase agreements and has invested the money for supply of electricity to the consumers or class of consumers of the area of his supply for which the distribution license is issued. Therefore, if a consumer or class of consumers want to receive the supply of electricity from a person other than the distribution licensee of his area of supply, he has to compensate for the fixed cost and expenses of such distribution licensee arising out of his obligation to supply - the levy of additional surcharge under sub-section (4) of Section 42 can be said to be justified and can be imposed and also can be said to be compensatory in nature. However, sub-section (4) of Section 42 shall be applicable only in a case where the State Commission permits a consumer or class of consumers to receive supply of electricity from a person other than the person – distribution licensee of his area of supply. So far as captive consumers/captive users are concerned, no such permission of the State Commission is required and by operation of law namely Section 9 captive generation and distribution to captive users is permitted.
Even otherwise, it is required to be noted that the consumers defined under Section 2(15) and the captive consumers are different and distinct and they form a separate class by themselves. So far as captive consumers are concerned, they incur a huge expenditure/invest a huge amount for the purpose of construction, maintenance or operation of a captive generating plant and dedicated transmission lines. However, so far as the consumers defined under Section 2(15) are concerned, they as such are not to incur any expenditure and/or invest any amount at all - it is to be held that such captive consumers/captive users, who form a separate class other than the consumers defined under Section 2(15) of the Act, 2003, shall not be subjected to and/or liable to pay additional surcharge leviable under Section 42(4) of the Act, 2003.
Appeal dismissed.
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2021 (12) TMI 842 - DELHI HIGH COURT
Dishonor of cheque - petitioner is dormant Director - Sections 138/141 of the Negotiable Instruments Act, 1881 - HELD THAT:- A perusal of the complaints would show that the complainant alleged that the present petitioner, who has been arrayed as accused No. 2, had agreed to guarantee repayment of all payments payable by the accused company in terms of the Factoring Agreement. It was also alleged that the present petitioner along with other accused persons was in-charge and responsible for making financial decisions of the accused company.
This Court is of the opinion that the N.I. Act being a penal statute should receive strict construction. Thus, specific averments in a criminal complaint which satisfy the requirements of Section 141 N.I. Act are imperative. On a prima facie view of the material placed on record in the present case, it is apparent that specific allegations have been levelled against the petitioner. Apart from the basic averment that the petitioner was in-charge of and responsible for the day-to-day business of the accused company, it was further averred in the complaint that the petitioner, being a Director, was in charge of the financial decision-making of the accused company and he had agreed to guarantee repayment of all amounts payable by the accused company to the complainant in terms of the Factoring Agreement.
On an overall reading of the complaints, it cannot be said that the allegations levelled are bald and vague. The petitioner has also not placed on record any material of unimpeachable quality in support of his claim that he was a dormant Director which issue, alongwith other defences raised, shall be a matter of trial. Suffice it to say, the complaint cases ought not be quashed qua the petitioner at this stage.
Petition dismissed.
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2021 (12) TMI 841 - RAJASTHAN HIGH COURT
Dishonor of cheques - insufficiency of funds - settlement of dispute between rival parties - annulment of conviction recorded by learned trial Court - HELD THAT:- Chapter XVII of the Act deals with penalties in case of dishonor of cheques for insufficiency of funds in the accounts. A complete procedure in this behalf is provided under Section 138 to 147 of the Act. Section 142 deals with cognizance of offence and Section 143 empowers a Court to try cases under Section 138 of the Act summarily. As per Section 147 of the Act, every offence punishable under the Act is compoundable notwithstanding anything contained in the Cr.P.C. While it is true that the offence is compoundable but a pivotal question, which has emerged for consideration, is 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.
The instant revision petition is allowed.
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2021 (12) TMI 787 - CALCUTTA HIGH COURT
Dishonor of Cheque - insufficiency of funds - rebuttal of presumption - Section 139 of the Negotiable Instruments Act - HELD THAT:- The presumption raised against the petitioner/accused person under Section 139 of the Negotiable Instruments Act, that the cheque was issued by the petitioner and received by opposite party no. 1 for discharge of petitioner's debts to the complainant/opposite party no.1, has not been rebutted in the instant case. The cheque bearing the signature of the petitioner and drawn on Mughberia Central Cooperative Bank Limited being cheque No.1551 dated 30.03.2015 has been produce as exhibit-1 - the learned Magistrate was abrest of the essential evidence that the cheque issued by the petitioners was dishonored and on demand by notice the drawer failed to make payment. Therefore the learned Judicial Magistrate committed no error in finding the accused/ petitioner guilty of the offence punishable under section 138 of the Negotiable Instrument Act.
The petitioner having issued the cheque in question is liable for non-clearance of the same and non-payment of the dues to opposite party no.1. To ensure due payment to the drawee of a cheque, the court trying the offence is empowered under section 138 of the Negotiable Instrument Act to impose a sentence of imprisonment which may extend to two years or with fine, which may extend to twice the cheque amount or both - there are no illegality in the impugned judgment where a substantive sentence of three months of imprisonment as well as a compensation twice the cheque amount has been awarded in favour of the opposite party no.1, against the petitioner.
There is no merit in the criminal revision filed by the petitioner and the same is dismissed - revision dismissed.
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