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Indian Laws - High Court - Case Laws
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- 2020 (11) TMI 892 - BOMBAY HIGH COURT
Dishonor of Cheque - acquittal of the accused - burden to prove - legally enforceable debt or not - contravention of Section 269-SS of the Income Tax Act - view taken by the learned Magistrate thereby acquitting the accused is erroneous and not based on sound legal principles - HELD THAT:- This Court has every power to re-appreciate, review and reconsider the evidence. After re-appreciating the evidence as above, the conclusion has been drawn that the judgment of acquittal rendered by the learned Trial Court is perverse. Now, when this Court has respondent/accused guilty of committing offence punishable under Section 138 of N.I. Act, the further act would ensue regarding imposition of quantum of punishment. It is clear from the aims and object for the enactment of Negotiable Instruments Act, that the penal provision was introduced to enha....... + More
- 2020 (11) TMI 891 - KERALA HIGH COURT
Dishonor of Cheque - insufficiency of funds - non-discharge of debt or liability - the accused failed to pay the amount covered under the cheques within fifteen days from the date of receipt of the statutory notice - Section 138 of the Negotiable Instruments Act, 1881 - HELD THAT:- It is well settled law that when concurrent findings of facts rendered by the trial court and the appellate court are sought to be set aside in revision, the High Court does not, in the absence of perversity, upset factual findings arrived at by the two courts below. It is not for the revisional court to re-analyse and reinterpret the evidence on record in a case, where the trial court has come to a probable conclusion. Unless the contrary is proved, it is presumed that the holder of a cheque received the cheque of the nature referred to in Section 138 of the N....... + More
- 2020 (11) TMI 890 - KARNATAKA HIGH COURT
Dishonor of Cheque - acquittal of accused - Privity of Contract - main grounds urged in the appeal is that the Trial Court had earlier convicted the accused based on the very same material available on record and there are no changed circumstances - HELD THAT:- The complainant has not made out a case for legally recoverable debt payable by the accused. It is also important to note that in the cross-examination he categorically admitted that while filing the complaint, he did not mention anything about the transaction between him and Srinivas at the instance of the accused and the same was suppressed. Only during the course of cross-examination, it is elicited that all these transactions had taken place between the parties. Even though the accused has taken the contention that the subject matter of the cheque was stolen, which was kept in ....... + More
- 2020 (11) TMI 889 - KARNATAKA HIGH COURT
Dishonor of Cheque - legally recoverable debt or not - rebuttal of presumption u/s 139 of NI Act - complainant in the present appeal who contended that the Trial Court has committed error in not appreciating both oral and documentary evidence and it has erred in casting the burden on the complainant - HELD THAT:- In the case on hand, it has to be noted that there is no dispute with regard to the issuance of the cheque and the same is also not denied by the accused and also has not given any reply notice when the notice was served on him and the defense was set up during the cross-examination that the said cheque was for security purpose to avail the loan by the complainant from the other financier and the same is not proved - there is no dispute with regard to the fact that the primary burden is on the complainant to prove with regard to ....... + More
- 2020 (11) TMI 888 - ALLAHABAD HIGH COURT
Dishonor of Cheque - submissions made by the learned counsel for the applicant call for adjudication on pure questions of fact, which may be adequately adjudicated upon only by the trial court and while doing so even the submissions made on points of law can also be more appropriately gone into by the trial court in this case - HELD THAT:- This Court does not deem it proper, and therefore, cannot be persuaded to have a pre-trial before the actual trial begins. A threadbare discussion of various facts and circumstances, as they emerge from the allegations made against the accused, is being purposely avoided by the Court for the reason, lest the same might cause any prejudice to either side during trial. But it shall suffice to observe that perusal of the complaint, and also the material available on record make out a prima facie case again....... + More
- 2020 (11) TMI 887 - KARNATAKA HIGH COURT
Dishonor of Cheque - validity of criminal proceedings - mortgaged property - present petitioner has entered into a registered partition deed with his brother under which, the mortgaged property had fallen to the share of his brother - case of petitioner is that the liability of repayment of the entire loan amount falls on the shoulder of his brother - HELD THAT:- The admitted fact remains that the petitioner was one among the loanee having availed considerable amount as loan from the respondent-bank. The petitioner herein has not denied or disputed that the said loan account has become a default account and the loan amount with interest is yet to be repaid to the respondent-bank. But the only contention of the present petitioner is that the liability to clear the loan falls upon his brother, since the property upon which the loan was lent....... + More
- 2020 (11) TMI 886 - KARNATAKA HIGH COURT
Dishonor of Cheque - acquittal of accused - Specific defense of the accused is that he had not availed loan on 01.12.2000 and he had availed loan only on 01.12.1999 and the cheque for the said amount was collected on 01.12.1999, which was misused - Whether the Trial Judge has committed an error in acquitting the accused in coming to the conclusion that the very transaction between the accused and the complainant is doubtful and whether it requires interference of this Court? - HELD THAT:- In the case on hand accused not denied the signature available in Ex.P.1 cheque. The only contention is that the said cheque was given at the time of getting the loan on 1.12.1999. If he has not borrowed loan on 1.12.2000 what prevented him to give any reply when two notices were issued to him with regard to payment of loan amount and subsequently on bou....... + More
- 2020 (11) TMI 885 - KARNATAKA HIGH COURT
Dishonor of Cheque - privity of contract - main contention urged by the accused Company is that there was no transaction between the complainant and the accused - Whether the appellate Court has committed error in reversing the finding of the trial Court in coming to the conclusion that the accused ppersons-DWs.1 and 2 are not liable to pay the amount to the complainant? HELD THAT:- It is clear that the Court has to see the wisdom of the legislature in bringing the enactment and while interpreting the law, the Court has to take note of the object and statement in bringing the enactment and the courts are meant to interpret the law with the object of special enactment. This Court has to draw the presumption in favour of the complainant under Section 139 of the Act. Accused Nos.1 and 2 have stepped into the witness box and adduced the evide....... + More
- 2020 (11) TMI 884 - KARNATAKA HIGH COURT
Dishonor of Cheque - offence punishable under Section 138 of the Negotiable Instruments Act, 1881 - Power of Court to try cases summarily - Whether in a case for offence punishable under Section 138 of the Negotiable Instruments Act, 1881, the Court of Magistrate exercising its power under the second proviso to Section 143 (1) of the Negotiable Instruments Act, if it appears to the said Court that it is undesirable to try the case summarily, after recording reasons, can proceed to try/hear the said case as a warrant case? HELD THAT:- Only in limited cases where the second proviso to sub-section (1) of Section 143 of the said Act 1881 is applicable, the learned Magistrate can convert the case into a summons case. In view of overriding effect of sub-section (1) of Section 143 of the said Act 1881, a case under Section 138 is not a summons c....... + More
- 2020 (11) TMI 883 - TRIPURA HIGH COURT
Dishonor of Cheque - Section 138 of the Negotiable Instruments Act, 1981 - existence of debt or not - indemnification of debts - receipt of demand notice - rebuttal of presumption - whether explanation offered by the petitioner is enough to disprove the statutory presumptions under Sections 138 and 139, NI Act? - HELD THAT:- In the case of Hiten P. Dalal [2001 (7) TMI 1172 - SUPREME COURT] it has been held by the Apex Court that the presumptions to be drawn by the court under Sections 138 and 139, NI Act are presumptions of law which cast evidential burden on the accused to disprove the presumptions. In the instant case, apparently the accused petitioner did not lead any evidence in rebuttal of such statutory presumptions. He has also failed to bring on record such facts and circumstances which would lead the courts below to believe that ....... + More
- 2020 (11) TMI 882 - ALLAHABAD HIGH COURT
Recovery of Loan - petitioner was extended facility of loan on finance of a vehicle by the informant, who is a Collection Manager - It is submitted that if there are any dues against the loan extended in favour of petitioner, then the finance company is having cheques in their possession, which if are dishonored, then the informant has a remedy under Section 138 of the Negotiable Instruments Act, 1881 - HELD THAT:- FIR has been lodged for cheating and criminal misappropriation of the hypothecated property. Prima facie it cannot be said that no cognizable offence is made out. Hence, no ground exists for quashing of the F.I.R or staying the arrest of the petitioner. The Full Bench of this Court in Ajit Singh @ Muraha v. State of U.P. [2006 (7) TMI 723 - ALLAHABAD HIGH COURT] reiterated the view taken by the earlier Full Bench in Satya Pal v....... + More
- 2020 (11) TMI 838 - DELHI HIGH COURT
Smuggling - Drug Trafficking - petitioner has prayed for bail on the ground that petitioner is innocent and has been falsely implicated - It is submitted that presumption of innocence lies in favour of the petitioner till the guilt is proved beyond reasonable doubt - HELD THAT:- The petitioner Nagary Ally Kombo had directed Chinedu to handover the bag containing contraband to co-accused Kelvin. During investigation of the case, Mobile phones of the petitioner as well as other accused persons were examined and it was revealed that they were in touch and which prima facie shows that they are member of a drug syndicate and involved in the drug trafficking. The accusation in the present case is with regard to commercial quantity. As per Section 37 of the NDPS Act, if a person is accused of enumerated offences under the said provision and in c....... + More
- 2020 (11) TMI 837 - ALLAHABAD HIGH COURT
Dishonor of Cheque - insufficiency of funds - time limit for presuming service of notice - HELD THAT:- Presumption of service of notice within a reasonable time is to be raised. It should be deemed to have been served at best within a period of thirty days from the date of issuance thereof. Meaning thereby, the reasonable period for presumption of service may be up to 30 days from date of its issuance. Hence, in present case, notice issued was said to be served and it was issued on 18.12.2017. It was sent through speed post and it was deemed to be sufficiently served up to 17.1.2018 and within fifteen days payment was not made. Then after within thirty days this complaint was filed. Hence, apparently this complaint was not time barred. On the basis of statement recorded under Section 200 and documentary evidence given under Section 202 of....... + More
- 2020 (11) TMI 836 - KARNATAKA HIGH COURT
Dishonor of Cheque - petitioner submitted that, after the institution of the complaint the complainant has paid the entire cheque amount and has collected back the cheque in question, as such, the private complaint filed by him, does not survive - maintainability of complaint - HELD THAT:- When the complaint lodged by the respondent herein is verified, the respondent as a complainant, has narrated the very same alleged facts in his complaint and contended that the accused only with an intention to harass him and for putting him to some difficulty, had secured a withdrawal slip which was unconnected with his Bank account and by forging his signature had filled the cheque for a huge amount by themselves and presented it for its realisation. If the argument of the learned counsel for the petitioner that the learned Magistrate ought not to ha....... + More
- 2020 (11) TMI 835 - PUNJAB AND HARYANA HIGH COURT
Dishonor of Cheque - Vicarious liability of Director - dishonor of collateral security cheques which were issued in discharge of alleged outstanding of a term loan sanctioned by the bank - fundamental argument of learned counsel for the petitioner is that the petitioner cannot be prosecuted for dishonor of cheques, as the liability was that of Company and not of the petitioner as an individual - HELD THAT:- There is merit in the contention of learned counsel for the petitioner. Given the facts of case read with allegations in the impugned Bombay High Court complaint, as an individual Director, petitioner seems to have been wrongly fastened with criminal liability of accused company M/s Supreme Tex Mart Ltd., particularly, after appointment of the Interim Resolution Professional and suspension of the directors under the IBC. It is though n....... + More
- 2020 (11) TMI 720 - MADRAS HIGH COURT
Dishonor of Cheque - offence under Section 138 of the Negotiable Instruments Act - direction for suspension of sentence imposed on him by the trial court - HELD THAT:- When it is noted the appellate court is justified in directing the petitioner/accused to deposit 20% of the compensation amount imposed by the trial court pending appeal as provided under Section 148 of the Negotiable Instruments Act and thereby ordering suspension of the sentence imposed on the petitioner and when the order passed by the appellate court is in conformity with the provisions of Section 148 of the Negotiable Instruments Act read with 389(1) of Cr.PC, I do not find any infirmity or error in the abovesaid condition imposed by the appellate court directing the petitioner to deposit 20% of the compensation amount imposed on him by the trial court. There is no merit in the Criminal original petition - Petition dismissed.
- 2020 (11) TMI 659 - DELHI HIGH COURT
Summon Order - non-applicability of the Payment & Settlement Systems Act, 2007 - It was submitted on behalf of the petitioner that the prescribed procedure as provided under the Payment & Settlement Systems Act,2007, for determination of the aspect of liabilities for alleged commission of offences is provided thereunder and that the offences mentioned under the said enactment are not completely in pari materia with the provisions under the Negotiable Instruments Act, 1881 - HELD THAT:- Even the parties to CC No. 1566/2019, 1565/2019 (out of which the impugned order arises) and CC No. 1567/19, do not relate to the same parties and apparently no such common order as the order dated 11.3.2019 could have been passed in relation to CC No. 1565/19 with other cases 1566/19 and 1567/19. Furthermore, it was also essential for the learned T....... + More
- 2020 (11) TMI 628 - DELHI HIGH COURT
Detention order - rejection of right to represent - preliminary submission of the petitioners is that before the Advisory Board, while the petitioners have been denied right to be represented through counsel, the respondent was represented through a counsel at the hearing - HELD THAT:- The fundamental right of the petitioners under Article 14 of the Constitution of India stood vitiated when they were denied the right of legal representation before the Advisory Board in the light of the fact that the respondent was, indeed, represented through counsel Mr. Jitendra Mishra. Firstly, the petitioner was never put to notice that their request to be represented through counsel before the Advisory Board was ever accepted. In fact, their representation making that request was rejected on 22.7.2020. It is also evident from the additional affidavit ....... + More
- 2020 (11) TMI 511 - DELHI HIGH COURT
Grant of Compulsory Bail - Section 167(2) of the Code of Criminal Procedure - whether an application for a bail under Section 439 Cr.PC would be sufficient for a court to construe that the accused had availed of his right to be released on bail under the provisions of Section 167(2) of the Cr.PC if the condition stipulated therein were met? HELD THAT:- In HUSSAINARA KHANTOON & ORS. VERSUS HOME SECRETARY, STATE OF BIHAR, PATNA [1979 (4) TMI 159 - SUPREME COURT], the Supreme Court had considered affidavits filed by the Superintendent of the Patna Central Jail, Superintendent of Muzaffarpur Jail and the Superintendent of the Ranchi Central Jail which indicated towards prisoners who were confined in the said jails and who had been produced before Magistrates from time to time in compliance with the requirement of the Proviso (a) to Sectio....... + More
- 2020 (11) TMI 508 - GUJARAT HIGH COURT
Interpretation of statute - validity of Rules 1 and 2 of the Bar Council of Gujarat (Enrollment) Rules - Bar Council of India as well as the Bar Council of Gujarat has a common argument to canvas that the rules framed by the Bar Council of Gujarat (Enrollment) Rules under Section 28(2)(d) read with Section 24(1)(e) of the Advocates Act, 1961 puts an embargo upon the writ applicant unless she resigns from her present employment and files an affidavit to that effect. Whether we should strike down Rules 1 and 2 of the Bar Council of Gujarat (Enrollment) Rules being violative of Article 14 of the Constitution or we should uphold the validity by adopting the principle of 'reading down' or 'reading into' so as to make the rule effective and workable and ensure the attainment of the object of the rule? HELD THAT:- Ordinarily, the....... + More
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