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2020 (11) TMI 889
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 the transaction and presumption has to be drawn if the cheque is admitted and no reply was given. Whether the probable defense was raised by the accused has to be considered. In the case on hand, the Trial Court has not at all invoked the presumption in favour of the complainant and also not discussed the evidence of the defense, particularly, the evidence of the accused, who has been examined as D.W.1 and also two witnesses, who have been examined as D.Ws.2 and 3 on behalf of the accused.
Whether the Trial Court has committed an error in acquitting the accused in coming to the conclusion that the complainant has not proved legally recoverable debt? - HELD THAT:- The defense of the accused that the said blank cheque was given to avail the financial assistance from the financiers and it is not the case of the accused from whom the complainant has borrowed the money to start the business. It is also an admitted fact that the Hotel Business was commenced in the year 2001 itself and this cheque pertains to the year 2005. When the accused admits his signature available on cheque - Ex.P1 and also on Ex.P6 notice served on him, the accused did not setup any defense immediately and during the course of cross-examination after thought set up a defense that the said cheque was given as security. The Trial Judge failed to consider the evidence in toto both the evidence of complainant and DWs.1 to 3 and not considered the documentary evidence available on record and mainly considered the evidence of P.W.1 and particularly, Ex.P14 - the letter and the said letter is not disputed by the complainant himself, he only got marked the document and the trial Court only concentrated on the source of the complainant.
The Trial Judge did not consider the evidence available on record in toto and failed to discuss the evidence of DWs.1 to 3 and only considered the evidence of PW.1. It is a settled law that the complainant has to prove his case and in the case on hand, the accused also did not dispute the cheque as well as his signature and also he has not given any reply and no complaint was given when the notice was given. If really the said cheque was mis-used he would have given the complaint and categorically admits that he is not having any impediment to give complaint and also no difficulty to give any reply. When such being the case, the presumption is available in favour of the complainant and no doubt the said presumption is rebuttable presumption and the question before this Court is whether the accused rebutted the presumption and I have already discussed in detail, the evidence of DWs.1 to 3, it is clear that the accused himself has suffered the loss in Hotel business and his house was also brought for sale when the Sales Tax of the Hotel was not paid.
The Trial Judge ought not to have come to the conclusion that the source has not been proved and non- examination of two witnesses from whom the complainant has received the money to advance the same in favour of the accused is not fatal - the Trial Court has committed an error in acquitting the accused and not drawn the presumption in favour of the complainant and therefore, it requires an interference of this Court.
The accused is convicted for the offence punishable under Section 138 of the NI Act and directed to pay the amount of ₹ 10 lakhs in favour of the complainant within eight weeks from today. If the accused fails to pay the amount he shall undergo simple imprisonment for a period of one year - Appeal allowed.
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2020 (11) TMI 888
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 against the accused at this stage and there appear to be sufficient ground for proceeding against the accused.
If the decision of the Court given in the light of the application does not conclude the proceedings against the accused and he is further required to appear and face the trial, the court shall be at liberty to proceed in accordance with law against the accused and take all necessary steps and measures to procure his attendance as the law permits - It is made clear that no application for extension of time shall be entertained if this order is not availed by the applicant in the stipulated period of time.
Application disposed off.
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2020 (11) TMI 887
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 has gone to his share - For the said contention, the argument of the learned counsel for the respondent that the alleged partition agreement between the accused brothers would not bind the petitioner in a criminal proceeding, cannot be discarded at this stage in this proceeding. If any such contention is there, then it is open for the petitioner to agitate the same at the appropriate stage before the appropriate forum.
Nothing prima facie material is placed by the petitioner to show criminal proceedings initiated against him for the alleged offence under Section 138 of N.I. Act, is prima facie without any merit, as such, has resulted into an abuse of process of law against him - Petition dismissed.
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2020 (11) TMI 886
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 bouncing of cheque, which has not been explained by the accused to rebut the evidence. He denied the availment of loan on 1.12.2000 and there is no answer with regard to the admission made by him during the course of cross- examination when a specific question was put to him. He had admitted that he had availed loan of ₹ 50,000/- from the complainant.
Suppression of fact of earlier transaction - HELD THAT:- In the case on hand no suppression as contended and the same is in respect of earlier transaction. The complaint is in respect of subsequent loan transaction and accused not paid the amount, hence the contention of the accused cannot be accepted.
Accused is directed to pay an amount of ₹ 1,00,000/- in favour of the complainant within a period of 8 weeks from today. If accused fails to pay the amount of ₹ 1,00,000/- within 8 weeks, accused is sentenced to undergo Simple Imprisonment for a period of one year - Appeal allowed.
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2020 (11) TMI 885
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 evidence. The answers elicited from the mouth of D.Ws.1 and 2 is clear that they have issued the subject matter of cheque Ex.P.1 in discharge of the liability in respect of M/s. IGSL, wherein they were the Directors. The accused persons though set up the specific defence that the cheque was misused by collecting the same from the former employee of M/s. IGSL, the same has not been substantiated by placing any cogent evidence before the Court. The accused failed to place any plausible evidence before the Court to rebut the evidence of the complainant and hence the accused persons have failed in discharging their liability and discharging their burden rebutting evidence of the complainant. The Appellate Court has committed an error in coming to the occlusion that there was no legally recoverable debt and there was no transaction between the complainant and the accused and the admitted document is in respect of ₹ 86,00,000/- and the cheque is for an amount of ₹ 2,30,00,000/-. It is emerged in the evidence that they agreed to pay interest at the rate of 9% and in terms of memorandum to pay an amount of ₹ 36,00,000/- and also to issue the shares in respect of ₹ 50,00,000/-.
It is the burden on the accused to show as to under what circumstances he has issued the cheque to the tune of ₹ 2,30,00,000/-, if there was no liability and the same is also not discharged and the accused has not explained in his evidence what made them to issue the cheque to the tune of ₹ 2,30,00,000/-. When such being the case, the Appellate Court ought not to have proceeded to make such an observation and acquit the accused. The Appellate Court failed to draw the presumption and nothing has been discussed with regard to the presumption available in favour of the complainant and whether the accused has rebutted the presumption has also not been discussed in the judgment. Hence, the impugned judgment of the Appellate Court requires to be interfered with and liable to be set aside.
Having taken note of the fact that the cheque was issued in 2006 and now we are in 2020, it is not appropriate to interfere with the judgment of the Trial Court. Hence, there are no reasons to interfere with regard to the quantum of amount to be paid, as directed by the Trial Court.
Appeal allowed.
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2020 (11) TMI 884
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 case. It must be tried summarily unless it can be tried as summons case by exercising the power under second proviso to sub-Section (1) of Section 143. The power under Section 259 of Cr.P.C can be exercised only in a case which is triable as a summons case. A case under Section 138 of the said Act of 1881 is not a summons case in view of the fact that sub-section (1) of Section 143 overrides the provisions of Cr.P.C. Therefore, Section 259 of Cr.P.C, cannot be allowed to be invoked by the learned Magistrate after passing an order under second proviso to sub-section (1) of Section 143 of the said Act of 1881. The object of introducing Chapter XVII into the said Act of 1881 containing Sections 138 to 142 by the Act of 66 of 1988 with effect from 1st April 1989 was to enhance the acceptability of the cheques in settlement of liabilities by making the drawer liable for penalties in case of bouncing/dishonor of cheques.
If the learned Magistrates are allowed to invoke power under Section 249 of Cr.P.C by adopting the procedure for a warrant case, it will completely defeat the very object of introducing Chapter XVII, as there will not be an expeditious disposal of trial in a complaint filed alleging an offence punishable under Section 138 of the said Act of 1881. Therefore, the power of the learned Magistrate under the second proviso to sub-section (1) of Section 143 of the said Act of 1881 is confined only to converting a complaint under Section 138 of the said Act of 1881 into a summons triable case. The power conferred on the Magistrate under the second proviso to sub-section (1) of Section 143 does not enable the learned Magistrate to exercise power under Section 259 of Cr.P.C and to convert a complaint filed alleging an offence under Section 138 of the said Act of 1881 into a warrant triable case.
If the learned Magistrates are allowed to convert the complaints filed alleging an offence punishable under Section 138 of the said Act of 1881 into a warrant triable case, the consequence will be disastrous as the trial will be prolonged. Lot of time will have to be devoted for hearing of discharge application and for framing of charge. It will amount to defeating the very object of introducing Chapter XVII containing Sections 138 to 142 in the said Act of 1881 with effect from 1st April 1989.
The power of the learned Magistrate to convert the trial of a complaint under Section 138 of the said Act of 1881 under the second proviso to sub-section (1) of Section 143 is confined only to converting the case into a summons triable case - Application disposed off.
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2020 (11) TMI 883
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 the liability, attributed to the accused petitioner was improbable or doubtful.
Apparently there is no reason to disbelieve the case of the complainant. The explanation offered by the accused petitioner on the other hand is not founded on proof and it does not stand to reason. The object of statutory notice is to protect an honest drawer of the cheque by providing him a chance to make the fund sufficient in his bank account and correct his mistake. The accused petitioner could have availed this opportunity by accepting the demand notice instead of repeatedly avoiding its service. He could have accepted the notice and projected his case that he already made the repayment of the loan, had this case of him been true. Therefore, it can be safely held that the prosecution successfully discharged its burden in proving the case against the petitioner with the help of the statutory presumptions under the NI Act, and the accused has failed to rebut those presumptions and prove the contrary by offering provable explanation founded on proof.
Service of notice - HELD THAT:- The complainant has led convincing evidence to prove that the postman visited the house of the accused at the known address on 4 dates. Every time the postman was told by the house inmates that he was out of station. The fact is proved by the report [Exbt.4 series] given by the postman. From the overall conduct of the accused, it is clear that he wanted to avoid the service of the notice - it cannot be said that the demand notice was not served on him.
This court is of the considered view that the impugned judgment dated 02.11.2017 passed by the learned Sessions Judge of Gomati Judicial District at Udaipur in Criminal Appeal No.47(3) of 2015 whereby he affirmed the conviction of the accused petitioner and modified the sentence passed by the learned trial court does not call for any interference - conviction and sentence of the accused petitioner is upheld. He is directed to deposit the fine of ₹ 4,00,000/- only in the court of the learned Sessions Judge in Gomati Judicial District at Udaipur in terms of the modified sentence within a period of 02 months for disbursement to the complainant respondent namely Shri Tanmoy Krishna Das, failing which the accused petitioner will suffer the default sentence in terms of the said judgment and order of the learned Sessions Judge.
Criminal Revision Petition stands dismissed.
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2020 (11) TMI 882
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. State of U.P. [1999 (9) TMI 997 - ALLAHABAD HIGH COURT] after considering the various decisions including State of Haryana v. Bhajan Lal [1990 (11) TMI 386 - SUPREME COURT] that there can be no interference with the investigation or order staying arrest unless cognizable offence is not ex-facie discernible from the allegations contained in the F.I.R. or there is any statutory restriction operating on the power of the Police to investigate a case - From the perusal of the FIR, 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.
Petition dismissed.
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2020 (11) TMI 838
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 case, the Court proposes to grant bail to such a person, two conditions are to be mandatorily satisfied in addition to the normal requirements under the provisions of the Cr.P.C. or any other enactment. Firstly the Court must be satisfied that there are reasonable grounds for believing that the person is not guilty of such offence. Secondly that person is not likely to commit any offence while on bail.
The facts appearing on record prima facie reveal that petitioner is involved in drug trafficking and this Court is of the opinion that there are no reasonable grounds to believe that he is not guilty of offence charged. Huge quantity of Pseudoephedrine weighing 24.5 kg, has been recovered. Moreover, since the charge-sheet prima facie reveals that petitioner is member of a drug syndicate, it cannot be said that he will not commit any offence if released on bail.
Thus, appearing on record and nature of offence, no grounds for grant of bail to the petitioner are made out - bail application dismissed.
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2020 (11) TMI 837
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 Cr.P.C., offence punishable under Section 138 of N.I. Act was, prima facie, made out. But learned trial Court has failed to appreciate facts and law, has presumed service of notice within 20.12.2017 and has dismissed complaint. This order is apparently erroneous on the face of it and is under mis-exercise of jurisdiction of learned trial Court. Accordingly, this revision merits its allowance.
Revision allowed.
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2020 (11) TMI 836
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 have taken cognizance in the absence of production of the said cheque by the complainant is verified, the only answer that comes is, in the absence of any material to show that the complainant had paid the cheque amount to the accused and collected the said cheque back, as contended by the learned counsel for the petitioner, it cannot be expected that the complainant was required to produce the alleged cheque along with his complaint in the Court below - the continued argument of the learned counsel for the petitioner that the non-initiating of any criminal case against the present complainant for the offence punishable under Section 138 of N.I.Act, itself would prove that the cheque was returned to the complainant, also is not acceptable, for the reason that, in the light of Annexures-A & B and the contents of the complaint at this stage and prima facie, it can be inferred that the accused after giving the reply as per Annexure-B realised that the complainant has given a suitable reply to that notice and he may initiate a legal action against them have now come up with the said defence that the cheque amount of ₹ 25,00,000/- has been paid to them in cash and the cheque has been collected back by the present complainant (respondent).
Maintainability of complaint - HELD THAT:- The argument of the learned counsel for the petitioner that, when the Banker has stated that the said cheque was not issued to the complainant, the present complainant/ respondent cannot initiate the present complaint, as such, the present complaint is not maintainable, is also not acceptable, for the simple reason that, when the accused through their legal notice at Annexure-A have alleged that the complainant had issued a cheque for a sum of ₹ 25,00,000/- to them and the same got dishonoured, then the complainant who has taken a defence that the cheque has got nothing to do with him and his signature in the alleged cheque has been forged, gets every right to prosecute the alleged payee in the cheque, in accordance with law - the contention of the learned counsel for the petitioner that the complaint is not maintainable is also not acceptable.
There are no reason to hold that there is any possibility of the abuse of process of law or any grave injustice being caused to the present petitioner - petition dismissed.
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2020 (11) TMI 835
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 not stated in the impugned complaint but on a query of this court, it transpires that petitioner had signed the cheques in question on behalf of the accused company. However, following the appointment of IRP, the petitioner was forthwith suspended to act as Director of the accused company and he was/is thus not in a position to pay or settle on behalf of the company. The primary liability of cheque bouncing in this case is of the accused drawer Company. All accounts are currently since under the control of a Interim Resolution Professional, it would not be fair to impose liability on a suspended Director of the Company.
Under the Insolvency and Bankruptcy Code-2016,once an insolvency petition is “admitted”, the resolution process gets initiated. The existing management automatically gets suspended. The Interim Resolution Professional takes over the operations of the company. Under Section 25 of IBC the Resolution Professional is under mandate to protect and preserve the assets of the ‘corporate debtor company’. Subsequent thereto, the committee of creditor is required to submit a resolution plan for approval of the ‘committee of creditors’. After such approval, the resolution plan is presented to the Adjudicating Authority - In the premise, due to insolvency proceedings against the accused company and imposition of moratorium, two consequences arise, namely, (a) option to compound a cheque bounce is not available to its directors (erstwhile) and; (b) claims of the creditors have to be submitted before a committee of creditors. The primary liability in a cheque bounce case where cheque has been issued on behalf of the company is upon the drawer-Company. Though the accounts of the drawer company herein are under the control of a Resolution Professional but sword of liability qua cheque issued on behalf of company has been vicariously imposed on the suspended director/petitioner.
The impugned complaint and summoning order are set aside only qua the petitioner/director - the complaint proceedings shall continue further against the Company/accused No.1, in accordance with law - Application disposed off.
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2020 (11) TMI 720
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.
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2020 (11) TMI 659
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 Trial Court to consider the aspect of the applicability or otherwise of the provisions of the Payments & Settlement Systems Act, 2007, read with the terms of the contours of the complaint in CC No. 1565/19, in as much as it has been submitted specifically on behalf of the petitioner that the petitioner is entitled to be tried, if required, to be so tried under the appropriate provisions of law.
Matter remanded back to the learned Trial Court to consider the aspect of summoning or otherwise of the accused in CC No. 1565/19 in terms of the averments made in the complaint CC No. 1565/19 qua the applicability of the provisions of the Payment & Settlements Systems Act, 2007 read with the provisions of the Negotiable Instruments Act, 1881, which be so determined in accordance with law - petition allowed by way of remand.
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2020 (11) TMI 628
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 filed by respondent nos. 1, 2 and 4 that the representation submitted on behalf of the petitioners on 6.8.2020 was not even placed before the Advisory Board for its consideration, on the ground that it was received shortly before the scheduled hearing on 7.8.2020 - this is found to be a gross violation of the petitioners’ right of consideration of representation by the Advisory Board. Despite having made the said representation, the same was not placed before the Board. Clearly, therefore, the fundamental right of the petitioners under Article 14 and 22 of the Constitution stood violated.
Thus, the continued detention of the petitioners is without the authority of law, since the petitioners have not been afforded the right to have their case considered by the Advisory Board in terms of Section 8 of the COFEPOSA Act - detention of the petitioners, therefore, cannot be sustained, and is accordingly quashed - petition allowed.
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2020 (11) TMI 511
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 Section 167(2) of the Cr.PC.
A plain reading of the Proviso (a) to Section 167(2) of the Cr.PC indicates that an accused would necessarily have to be released on bail “if he is prepared to and does furnish bail”. Thus, in cases where the statutory period of sixty days or ninety days has expired, the accused would be entitled to be released on bail provided he meets the condition as set out therein – that is, he is prepared to furnish and does furnish bail. It is important to note that there is no provision requiring him to make any formal application - It is also trite law that there is no inherent power in a court to remand an accused to custody. Such power must be traced to an express provision of law.
The petitioner had, unequivocally, stated that he was ready to furnish bail and provide a sound surety. He had further indicated that he would ready and willing to comply with any condition that may be imposed by the Trial Court and had also undertaken to appear before the Trial Court as and when required. Clearly, the Proviso to Section 167(2)(a) of the Cr.PC did not require the petitioner to do anything more except to indicate that he is prepared to furnish bail.
In the present case, there is no doubt that the petitioner had applied for being released on bail and had offered to abide by the terms and conditions of bail. Bearing that in mind, it is at once clear that the petitioner would be entitled to default bail even though he had not specifically mentioned the provisions of Section 167(2) of the Cr.PC in his application.
There is no dispute that an accused cannot be released on bail by a court on its own motion and it is necessary for the accused to apply and offer to furnish bail. The language of Proviso (a) to Section 167(2) of the Cr.PC also requires an accused to indicate that he is prepared to furnish bail before he can be released on bail - it would be apposite to consider an application for bail filed on expiry of stipulated period of filing chargesheet, as an application for bail under the provisio to Section 167 (2), since it does indicate that the accused is prepared to furnish bail.
The Proviso to Section 167(2) of the Cr.PC is intrinsically linked to the right under Article 21 of the Constitution of India that “no person shall be deprived of his life or personal liberty except according to the procedure established by law”. It embodies a safeguard that circumscribes the power to detain an accused pending investigation.
This Court considers it apposite to allow the present petition - petitioner is directed to be released on bail on his furnishing a personal bond in the sum of ₹10,000/- with one surety of an equivalent amount to the satisfaction of the concerned Trial Court/Duty Magistrate - Petition allowed subject to conditions imposed.
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2020 (11) TMI 508
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 Courts would be reluctant to declare a law or rule invalid or ultra-vires on account of unconstitutionality. The Court should make all possible endeavour to interpret in a manner which would be in favour of the constitutionality, as declaring the law or a rule unconstitutional should be one of the last resorts which the Court may take.
According to the Black's Law Dictionary, a lawyer is “a person learned in the law; as an attorney, counsel or solicitor, a person licensed to practice law”. The legal profession is not a business or a trade. A person practicing law has to practice in the spirit of honesty and not in the spirit of mischief-making or money-getting. The advocate is expected to devote full time to his profession of law. Although, the profession is called a noble profession, yet it does not remain noble merely by calling it as such unless there is a continued, corresponding and expected performance of a noble profession. Its nobility has to be preserved, protect and promoted. An institution cannot survive in its name or on its part glory alone. The glory and greatness of an institution depends on its continued and meaningful performance with grace and dignity.
The profession of law being noble and honourable one, it has to continue its meaningful, useful and purposeful performance inspired by and keeping in view the high and rich, traditions consistent with its grace, dignity, utility and prestige. Hence, the provisions of the Act and Rules made thereunder, inter alia, are aimed at to achieve the same. Such provisions of the Act and Rules should be given effect to in their true spirit and letter to maintain clean and efficient Bar in the Country to serve the cause of justice which again is noble one.
Rule 49 provides that an advocate shall not be a full time salaried employee of any person, government, firm, corporation or concern. The rule further provides that so long as such advocate continues to practice, there is no problem but if an advocate takes up any such employment referred to above, he is obliged to intimate such fact to the Bar Council on whose roll his name appears. The advocate was thereupon ceased to practice as an advocate so long as he continues in such employment. In fact by reading down the Rules 1 and 2 of the State Bar Council (Enrollment) Rules, we are bringing the Rules 1 and 2 respectively of the State Bar Council in tune or in conformity with Rule 49 of the Bar Council of India Rules. Rule 49 specifically talks about “an advocate”. It is suggestive of the fact that a person can be termed as an advocate only after he is lawfully enrolled on the Bar Council. This is suggestive of the fact that if a practicing advocate decides to take up any other job with any person, government, firm, corporation or concern, his duty is to intimate the Bar Council and after the necessary intimation he would cease to practice as an advocate.
It is too much to say that a person desirous to get himself enrolled as an Advocate with the State Bar Council should be asked at its inception to give up any other vocation, business or job and only, thereafter, he can be enrolled on the roll of the State Bar Council. We are dealing with a matter, in which, as single mother has come before us saying that no sooner she is enrolled as an Advocate after clearing the Bar Council Entrance Exam, then she would file a declaration on oath that she has given up the job which she has as on date. The lady is in a helpless situation. Today, if she gives up her job being a single mother, and god forbid if she is unable to clear the All India Bar examination, then she would be left without any means of livelihood. She has made herself very clear that she may be issued a provisional Sanad and such provisional Sanad shall remain in deposit with the Bar Council of Gujarat and she would obtain the final Sanad after clearing the Bar Council of India Exam. She has already filed an undertaking to this effect.
We read down Rules 1 and 2 respectively of the Bar Council of Gujarat (Enrollment) Rules so as to read that a person may be either in full or part time service or employment or is engaged in any trade, business or profession, who otherwise is qualified to be admitted as an Advocate shall be admitted as an Advocate, however, the enrollment certificate of such a person shall be withheld with the Bar Council and shall lie in deposit with the Council until the concerned person makes a declaration that the circumstances mentioned in Rule 2 have ceased to exist and that he or she has started his/her practice.
The Bar Council of Gujarat as well as the Bar Council of India is directed to act accordingly after applying the rules in consonance with what has been stated above and issue a provisional Sanad to the writ applicant so as to entitle her to appear in the Bar Council of India Exam - The Bar Council of Gujarat shall issue the Enrollment Number to the writ applicant on the same line and in the same format as given to all other applicants who apply for enrollment as an Advocate and which is acceptable to and compatible with the On-line All India Bar Examination portal. Let this exercise be undertaken at the earliest and the registration number shall be given to the writ applicant within a period of three days from the date of issue of the writ of this order.
Application disposed off.
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2020 (11) TMI 507
Grant of Regular Bail - applicant has submitted that the allegations made against the applicant are vague and he has been falsely implicated in the alleged offence - HELD THAT:- In the facts and circumstances of the case and considering the nature and gravity of accusation made against the applicants in the FIR, this Court is of the view that discretion is required to be exercised in favour of the applicants for grant of bail. Moreover, the applicants assure that they will abide by the terms and conditions that may be imposed by the Court and shall not commit any breach.
Further I do not intend to go into the merits of the matters and I am persuaded to exercise my discretion in favour of the applicants. The investigation is going on and the charge-sheet is not filed and the trial would take a considerable long period of time.
The applicant is ordered to be released on regular bail on executing personal bond of ₹ 10,000/- each with two surety of like amount to the satisfaction of the trial Court and subject to the conditions that they shall - Application allowed.
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2020 (11) TMI 506
Dishonor of Cheque - offence punishable under Section 138 of NI Act - legally enforceable debt or not - allegation is that the cheques of the petitioner/accused have been forcibly taken away by one Meena Pandi, for which, complainant was also lodged and the cheques, which were forcibly taken have been misused through the respondent/complainant and different others under the provisions of the NI Act - HELD THAT:- The cheque [ExP1] belongs to the petitioner and the same has not been denied. The cheque [ExP1] was presented for collection by the respondent/ complainant on 16.09.2010 and the same was returned with an endorsement 'account closed'. The respondent issued statutory notice dated 13.10.2010 and the same was returned unserved as 'unclaimed' and hence, the complaint was filed - Since the issuance of cheque [ExP1] is admitted, the presumption under Section 139 of the Negotiable Instruments Act is attracted. To discharge the presumption, the petitioner / accused has examined himself as DW1 and examined his father as DW2. ExR1 to ExR19 were also marked before the Court, to rebut the presumption.
The case of the petitioner/accused is that the account in Kotak Mahindra Bank was maintained at Adayar Branch as a salary account, when he was working in a Call Centre at Chennai and the said account was closed a long ago. The petitioner/accused neither knew the complainant nor borrowed any money. His father DW2, borrowed money from one Meena Pandi and in that transaction, the petitioner/accused had given two blank cheques to the said Meena Pandi. According to the petitioner/accused, the said loan transaction with Meena Pandi was fully discharged. However, Meena Pandi demanded more interest and refused to return the blank cheques, which were given to him by his father as a collateral security - DW2 lodged a complaint to the Superintendent of Police, Thanjavur as well as to the Chief Minister's Cell on 03.01.2011 against the said Meena Pandi. One of the said blank cheques has been misused by the said Meena Pandi, through his friend/ complainant and other Binamis.
The trial Court also found that the cheque number of this ExP1 has not been mentioned in the said complaints [ExR1 and ExR2] and the statutory notice in this case was issued on 13.10.2010 and this complaint was made only on 03.01.2011. Considering all these points, the contention of the petitioner/accused was rightly rejected the Courts below - Though the petitioner has attempted to rebut the presumption, he was not successful in rebutting the presumption and as pointed out by the learned Counsel for the respondent/complainant that the service of notice is sufficient in this case.
The criminal revision case is partly allowed - conviction rendered by the learned Judicial Magistrate [Fast Track Court at Magestrial Level], Thanvur is confirmed.
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2020 (11) TMI 505
Dishonor of Cheque - Grant of Anticipatory Bail - Act of Cheating - applicant states that he has got nothing to do with the alleged transaction with the 2nd accused and the defacto complainant and that it was entirely the responsibility of the 2nd accused who have agreed to arrange the job Visa as stated by the defacto complainant - HELD THAT:- The promise to arrange Visa was made entirely by the 2nd accused. He was not able to fulfill the promise, and therefore, agreed to return the amount. He entered into an agreement, which is produced before this Court, which indicates that he has unconditionally agreed to return the amount to the defacto complainant. He has also issued cheques for the amount and the cheques were not honoured and in consequence of that a complaint under Section 138 of the Negotiable Instruments Act has also been filed by the defacto complainant. Nowhere in the complaint filed by the defacto complainant under Section 138 or in the agreement executed by the 2nd accused, the involvement of the applicant is mentioned. It is only in the F.I.Statement that the name of the applicant is mentioned by the defacto complainant regarding his introducing the defacto complainant to the 2nd accused. In case the applicant was also involved in the sharing of the money and cheated, the agreement executed by the 2nd accused would definitely have made mention of the applicant. The fact that the name of the applicant has not been mentioned in the agreement indicates that there is no material to prove his complicity at present.
There is no reason to believe that he will not cooperate with the investigation or abscond or flee from justice.
The bail application is allowed and the applicant is directed to surrender before the investigating officer within two weeks.
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