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Indian Laws - Case Laws
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2021 (12) TMI 786 - CALCUTTA HIGH COURT
Dishonor of Cheque - rebuttal of presumption - discharge of any debt or other liability - preponderance of probability - Section 139 of the N.I. Act - HELD THAT:- Section 139 raises a reverse presumption against the accused by providing that the holder of a cheque shall be presumed to have 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 - The Explanation to Section 138 provides that, for the purposes of the said Section, “debt or other liability” means a legally enforceable debt or other liability.
If the evidence-on-record in the instant case is taken into consideration, it is the test of “preponderance of probability” that has to be applied to the case made out by the accused/respondent no.1 for the purpose of rebuttal of the presumption under Section 139 of the N.I. Act. Further, the materials submitted by the complainant can be relied on by the accused in order to raise such a defence, in some cases not requiring adducing evidence of his/her own - the prosecution case is that the independent seizure of other cheques from the same cheque book, details of which were separately given in several items of the Seizure List, indicates that the CBI merely seized the empty, or partially empty, cheque book which might not have contained the leaves of the incriminating cheques, thereby lending credence to the possibility of the accused having issued the dishonoured cheques. Equal weight can very well be attached to either of such theories for the purpose of preponderance of probabilities.
In the present case, no valid documentary evidence could be produced by the complainant and/or the prosecution for substantiating the legality and/or existence of any “enforceable debt or other liability” on the part of the accused and the Court has to resort to a balance of probabilities between the contentions of the parties - A plausible case has been made out by the defence as regards the non-existence of any such legally enforceable debt or other liability, also because the said debt/liability is not reflected from the relevant balance-sheet which was produced as evidence. Thus, illegal share transactions, which were the premise of such alleged liability, could not be construed, even as per the prosecution case, to be “legally enforceable”.
From the evidence adduced by the prosecution itself, several questions arise as regards the veracity of the chain of events sought to be projected by the prosecution.
Upon a perusal of the judgment and order impugned in the appeal, it is evident that the Trial Judge took sufficient pains to discuss all the relevant facets of the matter and the governing law and, upon comprehensive consideration of the materials-on-record and the law applicable, arrived at the findings and the final decision assailed in the present appeal. Merely because of a second opinion is possible, it is not for this court, sitting in appeal, to reverse the said decision of the Trial Court, in the absence of any infirmity and/or illegality in the Trial Court’s judgment - Appeal dismissed.
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2021 (12) TMI 732 - SUPREME COURT
SAFEMA - Service of primary notice - illegally acquired properties - relatives of the convict - Competent authority claims that the subject property (to be forfeited) is that of the convict (V.P. Selvarajan) and ostensibly held by the relatives of the convict (respondents herein) - requirement to serve a primary notice under Section 6(1) of the 1976 Act upon such convict with copy thereof to his relatives under Section 6(2) of the 1976 Act - whether nonservice of such primary notice upon the convict would vitiate the entire proceedings initiated only against his relatives?
HELD THAT:- On plain as well as contextual reading of Section 6, it is crystal clear that the notice under Section 6(1) is required to be issued to any person to whom the Act applies. As is evident from Section 2(2) of the 1976 Act, the Act applies not only to convict or detenu, but also to their relative, associate including holder of any property being Section 2(2)(c), 2(2)(d) and 2(2)(e) respectively. The purpose of issuing notice is to enable the person concerned (noticee) to discharge the burden of proof as propounded in Section.
In a given case, however, if the property is held by a person owing to merely being in legal possession thereof, but the ownership of the property at the relevant time is that of the convict or detenu or his/her relative, as the case may be, it would become necessary for the Competent Authority to not only give notice to the person in possession of the property in question but also to the person shown as owner thereof in the relevant records. Similarly, in a case where the person shown as owner in the relevant records had purchased the subject property from the convict or detenu and is a subsequent purchaser, notice is required to be issued to both - the present owner and the erstwhile owner (convict or detenu), as the case may be.
The convict or detenu cannot be heard to claim any right in such property including proprietary rights and for the same reason, he is not expected to discharge the burden of proof under Section 8 of the 1976 Act as to whether it is his legally acquired property nor can he be said to be the person affected with the proposed action of forfeiture as such.
Going by the definition of “illegally acquired property” in Section 3(1)(c) and of “person” in Section 2(2) to whom the Act applies, if the property is held in the name of the relative of the convict or detenu before or after the commencement of the Act, the notice under Section 6(1) needs to be issued to such person (recorded owner as well as in possession), who alone can and is expected to discharge the burden of proof in terms of Section 8 of the 1976 Act - so as to dissuade the Competent Authority from proceeding further against such property. Indeed, if the illegally acquired property is held in the name of the relative, but the de facto possession thereof is with some other person, who is not covered by the expression “person” as given in Section 2(2), in such a case primary notice under Section 6 is required to be issued to the relative of the convict or detenu and copy thereof served upon “such other person” who is in de facto possession thereof (albeit for and on behalf of the relative of the convict or detenu). Even in this situation, notice to the convict or detenu may not be necessary much less mandatory. For, the 1976 Act applies even to the relative of the convict or detenu holding illegally acquired property either by himself or through any other person on his behalf.
Notice under Section 6(1) cannot be issued in respect of properties for which the Competent Authority has no evidence or material to record “reasons to believe” that the properties were acquired from the assets or money provided by the convict/detenu. The expression ‘reasons to believe’ is a phrase used in several enactments and interpreted by this court to mean not ‘mere subjective satisfaction’ based on surmise and conjecture, but a belief that is ‘honest and based upon reasonable grounds’ - Recording of the reasons to believe and satisfaction of the aforesaid conditions is an important condition precedent – a sine qua non – and its violation would have legal consequences. It is a jurisdictional requirement, which, unlike a procedural requirement, would affect the proceedings if not complied with. Therefore, in such cases, the question of no prejudice is unavailable as the provision for issue of notice and satisfaction of the precondition for the issue of notice, i.e., “reasons to believe”, is mandatory and not optional or directory.
Thus, in the present case, the properties in question and subject matter of notice under Section 6 are in the name of and held by the two respondents. No entitlement or right has been claimed in these properties by the heirs of the deceased convict V. P. Selvarajan. If the properties were in the name of the deceased detenu or convict, then different considerations may have applied. In the context of the present case as the convict V.P. Selvarajan had expired before the issuance of notice under Section 6 on 19th January 1994, therefore, the need and requirement to serve notice on him would not arise.
Appeal allowed.
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2021 (12) TMI 731 - DELHI HIGH COURT
Dishonor of Cheque - Agreement to sell - Collaboration agreements - power to summon Section 138 read with Section 142 of the NI Act - HELD THAT:- In the present case, the entire premise of filing of the Criminal Complaints was that the petitioner had paid the amounts of ₹ 30 lacs and ₹ 20 lacs as advance payment for purchase of the aforementioned two properties. On a perusal of the Criminal Complaints, it is noted that the petitioner has averred that amounts of ₹ 30 lacs and ₹ 20 lacs were paid against Receipts. It is also his case that the advance payments were made towards purchase of the aforesaid properties. Besides, in his cross-examination conducted on 18.12.2018, the petitioner had deposed that he was in possession of the original Bayana Receipt, Agreement to Sell and the Collaboration Agreements executed between the erstwhile owners of the properties and the respondent. In this backdrop, the applications under Section 311 Cr.P.C. were filed on 22.07.2019, which came to be dismissed vide the impugned order on 08.08.2019.
Further, considering that the factum of execution of the aforesaid Receipts was mentioned in the Criminal Complaints, while other documents were mentioned at the time of the cross-examination in as early as 2018, the petitioner’s applications under Section 311 Cr.P.C. for his re-examination and placing on record of the aforesaid documents cannot be said to constitute ‘filling up of lacuna’ in the case.
Both the petitions are allowed, subject to payment of composite cost of ₹ 10,000/- to be deposited by the petitioner with the Delhi State Legal Services Authority within two weeks from the date of passing of this order.
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2021 (12) TMI 669 - SUPREME COURT
One Time Settlement (OTS) - Non-Performing Asset, (NPA) - It appears that to come out of NPA eligibility, the original writ petitioner deposited a sum of ₹ 60 lakhs on 02.03.2020, i.e., after rejection of her earlier application on the ground that as her loan account is “NPA’, she is not eligible for OTS Scheme - HELD THAT:- As per the guidelines issued, the grant of benefit of OTS Scheme cannot be prayed as a matter of right and the same is subject to fulfilling the eligibility criteria mentioned in the scheme. The defaulters who are ineligible under the OTS Scheme are mentioned in clause 2. A wilful defaulter in repayment of loan and a person who has not paid even a single installment after taking the loan and will not be able to pay the loan will be considered in the category of “defaulter” and shall not be eligible for grant of benefit under the OTS Scheme. Similarly, a person whose account is declared as “NPA” shall also not be eligible. As per the guidelines, the Bank is required to constitute a Settlement Advisory Committee for the purpose of examining the applications received and thereafter the said Committee has to take a decision after considering whether a defaulter is entitled to the benefit of OTS or not after considering the eligibility as per the OTS Scheme.
Even otherwise, no borrower can, as a matter of right, pray for grant of benefit of One Time Settlement Scheme. In a given case, it may happen that a person would borrow a huge amount, for example ₹ 100 crores. After availing the loan, he may deliberately not pay any amount towards installments, though able to make the payment. He would wait for the OTS Scheme and then pray for grant of benefit under the OTS Scheme under which, always a lesser amount than the amount due and payable under the loan account will have to be paid.
The sum and substance of the discussion would be that no writ of mandamus can be issued by the High Court in exercise of powers under Article 226 of the Constitution of India, directing a financial institution/bank to positively grant the benefit of OTS to a borrower. The grant of benefit under the OTS is always subject to the eligibility criteria mentioned under the OTS Scheme and the guidelines issued from time to time - Ultimately, such a decision should be left to the commercial wisdom of the bank whose amount is involved and it is always to be presumed that the financial institution/bank shall take a prudent decision whether to grant the benefit or not under the OTS Scheme, having regard to the public interest involved and having regard to the factors.
The High Court, in the present case, has materially erred and has exceeded in its jurisdiction in issuing a writ of mandamus in exercise of its powers under Article 226 of the Constitution of India by directing the appellant-Bank to positively consider/grant the benefit of OTS to the original writ petitioner - Appeal allowed - decided in favor of appellant.
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2021 (12) TMI 668 - KERALA HIGH COURT
Dishonor of Cheque - insufficiency of funds - presumption under Sections 118(a) and 139 of the NI Act is available or not - HELD THAT:- It is true that when PW1 was examined the accused has disputed his signature in the cheque. It is also true that PW2 in cross examination stated that he did not see the accused putting his signature. But, PW1 in categoric terms has deposed that the cheque in question was signed by the accused in his presence at the time of borrowal. There is nothing to disbelieve the said version. That apart, the accused did not take any steps to send the signature in Ext. P1 cheque for examination by a scientific expert. Once the signature, execution and handing over of the cheque are satisfactorily proved, the presumption under Section 139 of the NI Act would come into play and remain in force until the accused discharges the burden. The complainant has successfully established the signature, execution and handing over of the cheque. There is absolutely no evidence adduced to rebut the said evidence. No evidence has been adduced by the accused to substantiate the defence plea that the cheque in question was issued in blank in connection with the transaction he had with the deceased brother of the complainant.
This court under the exercise of jurisdiction under Section 397 read with 401 of Cr.P.C. cannot re-appreciate or re-evaluate the evidence - the revision petitioner is not entitled for any relief.
Revision petition dismissed.
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2021 (12) TMI 667 - KERALA HIGH COURT
Dishonor of cheque - insufficiency of funds - discharge of legal liability or not - acquittal of the accused - rebuttal of presumption under Section 139 of the Act - preponderance of probabilities - HELD THAT:- The evidence of independent witnesses, DW1 and DW2, would substantiate the defence case set up by the accused. Even in the absence of the expert opinion, the accused had succeeded in proving that the cheque in question was issued in blank in connection with the earlier transaction he had with the complainant. It is settled that there may not be sufficient negative evidence which could be brought on record by the accused to discharge his burden. The accused need to substantiate his case based on preponderance of probabilities. The accused in this case is successful in discharging the burden by cross examining PW1 and examining DW1 to DW3 and also producing Exts. D1 and D2 and also by proving probabilities in his favour and non-probabilities against the complainant. The evidence on record would clearly show that the fact is not as presumed. Thus, it can be safely concluded that having regard to the facts and circumstances of the case and preponderance of probabilities, the rebuttal evidence adduced by the accused is acceptable.
In the case of acquittal, there is double presumption in favour of the accused. An order of acquittal cannot be interfered with as matter of course. An order of acquittal can only be interfered with when there are compelling and substantial reasons for doing so. Only in exceptional cases where there are compelling circumstances and the judgment in appeal is found to be perverse, the appellate court can interfere with the order of acquittal.
There are no reason to interfere with the order of acquittal by the court - appeal dismissed.
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2021 (12) TMI 666 - HIMACHAL PRADESH HIGH COURT
Dishonor of cheque - acquittal of the accused - complainant/appellant had not produced the registration certificate of the firm on record - document on record to show about Sh. Rinchen Thomas being the managing partner in the complainant firm and Sh. Rinchen Thomas having further authorized Hem Raj to file the complaint - HELD THAT:- The appellant/applicant (therein) ought to be granted one chance to place and prove on record the partnership deed.
The matter is remitted back to the learned JMFC, who shall afford an opportunity to the appellant to lead evidence with regard to the factum of partnership as also due authorization, if any, in favour of Sh. Hem Raj - Appeal allowed by way of remand.
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2021 (12) TMI 614 - SUPREME COURT
Validity of Arbitral Award - it is alleged that award is in excess of claim - Arbitrator exceeded the scope of reference or not - Arbitrator has rewritten the contract with respect to the amount payable which was specified in the contract or not - HELD THAT:- That the contractor was awarded the contract for maintenance, etc. The contract amount was for ₹ 5,26,59,688/. The rate of maintenance of the road as accepted was ₹ 12,000/per km per annum or ₹ 1,000/per km per month. The maintenance contract was valid up to 31.07.2010. When the contract was entered into, the contract was meant for only 3364 PCUS per day. However, due to diversion of traffic from Palwal Aligarh Road to the present road, the contractor was required to incur additional expenditure on the maintenance due to increase in the traffic and plying the additional commercial vehicles.
When the statement of claim submitted by the contractor is seen, it is specifically stated by the claimant that the amount of ₹ 1,03,50,263/has been worked out up to May, 2007 and the details of expenditure beyond May, 2007 will be submitted during the course of hearing. It is specifically stated that expenditure incurred up to May, 2007 works out to ₹ 1,03,50,263/. Therefore, the amount awarded by the Arbitrator cannot be said to be in excess of the claim - the Arbitrator was justified in awarding the amount beyond the aforesaid periods and till the additional traffic was diverted due to the closure of Palwal Aligarh Road - the Arbitrator was justified in awarding the amount beyond the aforesaid periods and till the additional traffic was diverted due to the closure of Palwal Aligarh Road.
The contractor was entitled to the loss on account of the additional expenditure incurred for maintenance of the road due to increase in the traffic because of the closure of the Palwal Aligarh Road and diversion of the traffic to the present road. Therefore, by no stretch of imagination it can be said that there was rewriting the terms of the contract as submitted on behalf of the appellant.
The award passed by the Arbitrator awarding the amount/compensation at ₹ 45,000/per km per month up to January, 2008 under claim Nos.1 and 8 is hereby confirmed - Appeal allowed in part.
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2021 (12) TMI 613 - SUPREME COURT
Seeking grant of bail - Smuggling - psychotropic substances - admissibility of confessional statement recorded under Section 67 of the NDPS Act - HELD THAT:- The impugned order cancelling the bail granted in favour of Bharat Chaudhary [A-4], is not sustanabile in view of the fact that the records sought to be relied upon by the prosecution show that one test report dated 6th December, 2019, two test reports dated 17th December, 2019 and one test report dated 21st December, 2019 in respect of the sample pills/tablets drawn and sent for testing by the prosecuting agency conclude with a note appended by the Assistant Commercial Examiner at the foot of the reports stating that “quantitative analysis of the samples could not be carried out for want of facilities”. In the absence of any clarity so far on the quantitative analysis of the samples, the prosecution cannot be heard to state at this preliminary stage that the petitioners have been found to be in possession of commercial quantity of psychotropic subtances as contemplated under the NDPS Act.
In the absence of any psychotropic substance found in the conscious possession of A-4, mere reliance on the statement made by A-1 to A-3 under Section 67 of the NDPS Act is too tenuous a ground to sustain the impugned order dated 15th July, 2021 - SLP disposed off.
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2021 (12) TMI 575 - DELHI HIGH COURT
Dishonor of cheque - insufficiency of funds - compoundable offence or not - Settlement agreement between parties - HELD THAT:- Section 138 of the N.I. Act stipulates the punishment for dishonour of cheque for insufficiency, etc. of funds in the account. As per Section 147 of the N.I. Act, notwithstanding anything contained in the Cr.P.C., every offence punishable under the N.I. Act is deemed to be compoundable. Therefore, the offence of dishonouring of a cheque is a compoundable offence. The facts of the instant case indicate that in pursuance of Order dated 14.02.2020 of the Ld. Trial Court, a Mediation Settlement dated 22.09.2020 was signed by both the parties as per which Respondent No.2 was directed to pay a sum of ₹ 3,00,000/- by way of cash against receipt/DD/account transfer in four instalments. This settlement agreement was signed by both the parties out of their own volition.
It can safely be said that when the offence under Section 138 N.I. Act is compounded in accordance with Section 147 N.I. Act, the question of imposition of a sentence on Respondent No.2 does not arise. Section 357(3) Cr.P.C. states that when a Court imposes a sentence, of which fine does not form a part, the Court may order the accused person to pay, by way of compensation any amount that the Court deems fit to the person who has suffered any loss or injury.
This Court, therefore, finds no legal infirmity in the impugned Order dated 24.12.2020 of the Ld. Trial Court, and is of the opinion that the decision rendered by the Ld. Trial Court is well-considered and showcases application of judicial mind. This application is completely misconceived and only demonstrates the avarice of the petitioner who wants compensation after settling the dispute. This application is nothing but an abuse of the process of law - petition is dismissed.
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2021 (12) TMI 522 - DELHI HIGH COURT
Suit for recovery of loan amount - Effect of the statements made under Order X Rule 1 and 2 CPC - effect of the TDS Certificates produced by the Defendant before the Trial Court - HELD THAT:- This Court is of the opinion that a statement under Order X CPC when recorded, has to be read in the context of Order X Rule 1 CPC and Order X Rule 2 CPC. If there are any allegations of facts, which are either admitted or denied, there has to be an oral examination of the parties or any person, to elucidate the matter in controversy in the suit. - In the present case, the Chartered Accountant of the Defendant firm has stated in his statement that Section 194A of the Income Tax Act, 1961 relates to the payment of interest. This, in any event, is a provision of law, which can be clearly deciphered from a perusal of the said provision itself. The effect of a TDS Certificate being issued, and whether the same can be construed as an admission or not is a question that would arise in this case. The Statement of the Chartered Accountant of the Defendant firm, who stated that TDS was deducted, and deposited for the payment of interest also has to be considered.
At the stage of final adjudication, the Trial Court shall bear in mind the statements made under Order X CPC read along with the pleadings of the parties. If the case of the Defendant, that the amount was advanced as a means of investment and not as a loan, is not made out, the Trial Court would proceed further, in accordance with law, on the basis of the evidence adduced by the Plaintiffs and the statements recorded under Order X CPC.
Application disposed off.
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2021 (12) TMI 421 - CALCUTTA HIGH COURT
Seeking refund of recovered amount from post office - procedural irregularity or not - premature withdrawals of monthly income scheme account - HELD THAT:- The respondent was working as a postal assistant at the Purulia Head Post Office. The process of making payments at the post office comprised of the following steps. After an MIS pass book was presented to the counter, the signature was to be tallied by the ledger clerk. Thereafter, the Assistant Post Master signed the vouchers. Only then could the respondent pay any sum of money to the messenger or payee concerned in cash. Therefore, quite clearly the respondent was not the disbursing authority - once the Assistant Post Master signed the vouchers and sanctioned the payment, it was not open to the respondent to stop such payment. As such, no liability for any purported illegality in making such payment in cash could be attributed to the respondent.
Besides, although the respondent had clearly disputed the allegations in the charge sheet issued to him, no enquiry was conducted in this case. In O.K. BHARDWAJ VERSUS UNION OF INDIA (UOI) AND ORS. [1996 (10) TMI 522 - SUPREME COURT], the Hon'ble Apex Court, inter alia, held that if the charges were factual and if they were denied by the delinquent employee, an enquiry should be called for. However, in the present case, no such enquiry was undertaken although the delinquent respondent/employee disputed the allegations levelled against him.
The implication of the respondent in the alleged irregular disbursement of money on Monthly Income Scheme account of a depositor to a messenger does not appear to be tenable either on facts or in law - Application dismissed.
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2021 (12) TMI 377 - SUPREME COURT
Dishonor of Cheque - discharge of legally enforceable debt - the appellant herein was convicted and sentenced - rebuttal of presumption - preponderance of probability - Section 138 of N.I. Act - HELD THAT:- Even if we take the arguments raised by the appellants at face value that only a blank cheque and signed blank stamp papers were given to the respondent, yet the statutory presumption cannot be obliterated.
The defence raised by the appellants does not inspire confidence or meet the standard of “preponderance of probability”. In the absence of any other relevant material, it appears that the High Court did not err in discarding the appellants' defence and upholding the onus imposed upon them in terms of Section 118 and Section 139 of NIA.
The object of Chapter XVII of NIA is not only punitive but also compensatory and restitutive. The provisions of NIA envision a single window for criminal liability for dishonour of cheque as well as civil liability for realisation of the cheque amount. It is also well settled that there needs to be a consistent approach towards awarding compensation and unless there exist special circumstances, the courts should uniformly levy fine up to twice the cheque amount along with simple interest @ 9% p.a. - when a cheque is drawn out and is relied upon by the drawee, it will raise a presumption that it is drawn towards a consideration which is a legally recoverable amount; such presumption of course, is rebuttable by proving to the contrary. The onus is on the accused to raise a probable defence and the standard of proof for rebutting the presumption is on preponderance of probabilities.
On perusal of Section 138 NI Act, it is indicated that the sum and substance of the defence is that the documents and cheque had been obtained by the respondent on 20.01.2004 by threatening the appellant. In that regard, the circumstances thereto were referred and it has been categorically stated that the appellant had filed a complaint, pursuant to which a case was registered against the respondent for the offence punishable under Sections 365, 342, 323 and 506 of IPC. This makes it relevant for us to take note of the aspect that was considered in the above noted criminal complaint filed by the appellant.
The defence sought to be put forth in the instant case and the witnesses examined in the instant proceedings are only by way of improvement in respect of the same cause of action. Therefore, the defence sought to be put forth relating to the cheque and other documents having been obtained by force, cannot be accepted as a probable defence when the respondent successfully discharged the initial burden cast on him of establishing that the cheque signed by the appellant was issued in his favour toward discharge of a legally recoverable amount. The fact that the appellant has admitted about an earlier transaction where according to him, he had borrowed the amount and repaid the same in the year 1995, would indicate that the appellant and the respondent had entered into financial transactions earlier as well and another transaction was probable between the parties who were known to each other.
Appeal dismissed.
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2021 (12) TMI 354 - GUJARAT HIGH COURT
Dishonor of Cheque - insufficiency of funds - existence of legally enforceable debt or not - rebuttal of presumption - HELD THAT:- It appears that a complaint filed under Section 138 of the N.I.Act by the respondent No.2 was registered as Criminal Case No. 2208 of 2017. That, process was issued under section 204 of the Code of Criminal Procedure by the learned trial Court, as per order passed below Exh. 1 on 15th September, 2017. It is not in dispute that the cheque was issued by the present applicant under his signature in favour of respondent No.2 on 24th April, 2017 for the amount of ₹ 60,000/- which is produced at page 19. It was not in dispute that the cheque was returned back by the bank authority on account of “insufficient fund” by return memo dated 10th July, 2017.
Once, the accused has admitted the issuance of the cheque which bears his signature, there is presumption that there exists a legally enforceable debt or liability under Section 139 of the N.I.Act. However, such a presumption is rebuttable in nature and the accused-applicant is required to lead the evidence to rebut such presumption. The applicant was required to lead evidence that the entire amount due and payable to the complainant was paid.
Considering the fact that the applicant-accused has admitted the issuance of the cheque and his signature on the cheque and that cheque in question was issued for security purpose as well as the amount was paid by him. There is a presumption under Section 139 of the N.I.Act that there exists a legally enforceable debt or liability. Of course, such presumption is rebuttable in nature. However, to rebut the presumption the accused was required to lead the evidence that full amount due and payable to the complainant has been paid. In the present case, two receipts are produced by the accused applicant which requires to be proved by him with cogent evidence in trial. The story put forward by the applicant-accused that the cheque was given by way of security is not believable at this juncture to rebut the presumption.
This application deserves to be dismissed and dismissed.
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2021 (12) TMI 332 - SUPREME COURT
Smuggling - narcotic drugs - maintainability of parallel proceedings - whether, the sentences imposed against the appellant – accused by two different courts in two different trials but against the same accused/person should run concurrently as submitted on behalf of the appellant – accused or consecutively? - HELD THAT:- Under Section 427 (1) of Cr.PC, the Court has the power and discretion to issue a direction that the subsequent sentence to run concurrently with the previous sentence in that case also, the discretion has to be exercised judiciously depending upon the nature of offence or the offences committed. In the present case the appellant – accused has been convicted for the offences under the NDPS Act. He has been convicted in one case for recovery of 4 kg heroin and sentenced to undergo 12 years RI and in another case there is a recovery of 750 grams of heroin and considering the Section 31 (ii) of the NDPS Act, he has been sentenced to undergo 15 years RI. No leniency should be shown to an accused who is found to be guilty for the offence under the NDPS Act. Those persons who are dealing in narcotic drugs are instruments in causing death or in inflicting death blow to a number of innocent young victims who are vulnerable. Such accused causes deleterious effects and deadly impact on the society. They are hazard to the society. Such organized activities of clandestine smuggling of narcotic drugs and psychotropic substances into this country and illegal trafficking in such drugs and substances have a deadly impact on the society as a whole.
Even while exercising discretion under Section 427 of Cr.PC to run subsequent sentence concurrently with the previous sentence, the discretion is to be exercised judiciously and depending upon the offence/offences committed. Therefore, considering the offences under the NDPS Act which are very serious in nature and against the society at large, no discretion shall be exercised in favour of such accused who is indulging into the offence under the NDPS Act.
Appeal dismissed.
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2021 (12) TMI 331 - TELANGANA HIGH COURT
Dishonor of Cheque - insufficiency of funds - signatory of the cheque - vicarious liability of NI Act - HELD THAT:- Considering the fact that the petitioners – A5, A7, A8 and A9 were not the drawers of the cheques and had not signed the same and no specific averments were made in the complaint against them showing the role played by them as to how they were responsible for the conduct of day to day business of the company, it is considered fit to quash the proceedings against the petitioners.
The Criminal petition allowed.
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2021 (12) TMI 330 - TELANGANA HIGH COURT
Dishonor of cheque - insufficiency of funds - non-performing assets - Independent Director under Section 149 of the Companies Act - Section 293 of the Companies Act - HELD THAT:- On a perusal of the private complaint filed by the complainant, the role played by the petitioners was nowhere mentioned, except stating that as per Section 293 of the Companies Act, all the accused being the Directors of A1 Company got full knowledge of borrowing of the loan from the complainant bank and as such liable for repayment and also punishment.
Considering the judgments of the Hon'ble Apex Court and this Court in a batch of criminal petitions and in Arrakuntal V. Ganeshan case [2013 (6) TMI 904 - ANDHRA PRADESH HIGH COURT] and as the petitioners were neither Managing Directors nor the authorized signatories to sign on the cheques and no specific role was attributed to the petitioners in discharge of the day to day affairs of the Company, continuation of the proceedings against the petitioners is considered as an abuse of process of law.
The Criminal Petition is allowed.
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2021 (12) TMI 329 - GUJARAT HIGH COURT
Dishonor of Cheque - rebuttal of presumption - burden of proof is on the accused or not - preponderance of probabilities - Section 139 of NI Act - HELD THAT:- Hon’ble Apex Court in M/s. Meters and Instruments [2017 (10) TMI 218 - SUPREME COURT] was considering the provisions of Section 143 of the Act and the provisions of Section 258 of Cr.P.C. It requires to mention here that in SUO MOTU Writ Petition (Cri.) No. 2 of 2020 for expeditious trial of cases under Section 138 of N.I.Act, 1881, it has been observed that Section 258 of the Cr.P.C. is not applicable to a summons case instituted on a complaint thus held that Section 258 cannot come into play in respect of the complaints filed under Section 138 of the Act. Further noted that M/s. Meters and Instruments (supra) in so far as it conferred power on the trial court to discharge an accused is not good law. Thus it can be considered that while keeping in view the scheme under provisions of N.I.Act, judgment of M/s. Meters and Instruments (supra) is to encourage the parties to settle the issue amicably and primarily the consent of the parties would be sought for closure of the proceedings under Section 138 of N.I.Act, and while compounding the matter under Section 147 of N.I.Act, the Court is required to assess the amount to be paid to the complainant in accordance with the object.
Here in this case the total cheque amount has been paid by the petitioner-company to the respondent No.2-original complainant but the only issue is with regard to payment of interests and cost. Thus, in the fitness of the matter and the facts and circumstances of the case, it would be more appropriate that both the parties are directed to approach the trial court through the learned advocates and assist the court in assessing the interests and cost amount to be paid. It is thus directed that the presence of the parties may not be insisted and the court may take all endeavors to make closure of the case at the earliest.
Petition disposed off.
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2021 (12) TMI 328 - MADRAS HIGH COURT
Dishonor of Cheque - legally enforceable debt or not - rebuttal of statutory presumption - relationship between the parties is landlord and tenant or not - Section 138 of the Negotiable Instruments Act - HELD THAT:- Non mentioning of the second transaction in the first legal notice dated 02.09.2011, can be used by the revision petitioner herein/accused to her advantage in the second complaint said to be pending before the learned Judicial Magistrate No.1, Coimbatore, is not relevant for in this complaint and such finding rendered by the Lower Appellate Court appears to be proper and the same does not require any interpretation at this revision stage.
It is seen from the grounds of the revision that the respondent herein obtained three alleged pro-note marked as Exs.P1, P2 & P3 in the Trial Court charging exorbitant interest on the alleged principal amount, the same is contrary to provisions of the Tamil Nadu Money Lenders Act, 1957, in the oral evidence PW1, PW2, PW3 clearly demonstrated the same before the Court. The evidence of PW2 and the endorsement made therein has been spoken to by PW3. Issuance of cheques from the account of the accused and the signature is not being disputed on the alleged cheques for legally enforcible debt. However, based upon Exs.P1 to P3/promissory notes which has been clearly demonstrated before the Court, the above contention raised at the revision stage does not alter the position.
This Court finds that there is no merits in the revision and the order passed by both the Courts below does not suffer from any illegality or irregularity warranting interference - Criminal Revision Case stands dismissed.
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2021 (12) TMI 327 - MADRAS HIGH COURT
Dishonor of Cheque - criminal liability of natural persons - CIRP proceedings are ongoing against the company - natural persons mentioned in Section 141 continuing to be statutorily liable under Chapter XVII of the Negotiable Instrument Act - Section 138 and 141 of the Negotiable Instrument Act, 1881 - HELD THAT:- It is not in dispute that the cheques issued to the complainant's Company were dishonored with an endorsement ''Payment Stopped by the Drawers''. In that regard, the 1st petitioner Company had issued a letter to the respondent through their counsel stating about the initiation of insolvency process by National Company Law Tribunal (NCLT) against the 1st petitioner Company and due to which, the 2nd accused / 2nd petitioner was unable to honor the post dated cheques issued in favour of the respondent Company. Inspite of the communication of the 1st petitioner Company regarding the insolvency process, the complainant has presented the cheques for collection, which was dishonored and thereby filed the complaint against the 1st petitioner Company.
In the case on hand, the insolvency process was initiated by NCLT on 10.07.2017 and moratorium has been declared under the Insolvency & Bankruptcy Code. Therefore, as held by the Hon'ble Supreme Court, the moratorium was only in respect of the corporate debtor and not in respect of the directors / management and therefore, the petitioners 2 and 3 as natural persons, are liable for prosecution. However, in view of declaration of moratorium by NCLT, the prosecution as against the company cannot be allowed to continue.
This Court is of the opinion that the issue is a triable issue and it requires appreciation of evidence and this Court cannot decide the same in exercise of its jurisdiction under Section 482 of Criminal Procedure Code - Petition allowed.
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