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Indian Laws - High Court - Case Laws
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2023 (3) TMI 1363
Seeking procurement of investigation papers and documents from the Investigating Agencies at South Africa with respect to the seizures made in India - HELD THAT:- It is trite position of law that, the accused has no right to have any say as regards the manner and method of investigation. That the accused has no participation as a matter of right during the course of investigation of a case instituted on a police report till the investigation culminates. Accused cannot choose Investigating Agency. That, accused persons do not have a say in the matter of appointment of an Investigating Agency. The accused persons cannot choose as to which Investigating Agency must investigate the alleged offence committed by them. Accused has no right with reference to the manner of investigation or mode of prosecution. The Hon’ble Supreme Court in th....... + More
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2023 (3) TMI 1329
Dishonour of Cheque - insufficiency of funds - compounding of offence alleged to have been committed under Section 138 of the Act - whether after upholding the judgment of conviction and order of sentence passed by learned court below, this Court can proceed to compound the offence or not? HELD THAT:- This Court vide judgment passed in GULAB SINGH VERSUS VIDYA SAGAR SHARMA [2017 (12) TMI 1837 - HIMACHAL PRADESH HIGH COURT], while relying upon judgment of Hon'ble Apex Court as well as other Constitutional Courts has already held that court, while exercising power under Section 147 of Act can proceed to compound offence even in those cases, where accused stands convicted. The Hon’ble Apex Court in K. SUBRAMANIAN VERSUS R. RAJATHI REP. BY P.O.A.P. KALIAPPAN [2009 (11) TMI 1013 - SUPREME COURT], also in similar situation ordered for....... + More
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2023 (3) TMI 1064
Dishonour of Cheque - legally enforceable debt - whether the judgment, dated 20.08.2007 in Criminal Appeal No. 66 of 2006, on the file of learned X Additional District & Sessions Judge, Krishna at Machilipatnam, suffers with any illegality, irregularity and impropriety and whether there are any grounds to interfere with the said judgment of the learned Additional Sessions Judge? - Section 138 of N.I. Act - HELD THAT:- The complainant examined P.W.2, who was the attestor of Ex.P.7, promissory note and P.W.2 supported the case of the complainant. Ex.P.7 literally support the case of the complainant that P.W.2 acted as an attestor to Ex.P.7. D.W.1 in cross examination admitted that he had no disputes with the attestors or scribe mentioned in Ex.P.7. There is no dispute about the signature of the accused in Ex.P.7. Even there is no disput....... + More
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2023 (3) TMI 1025
Seeking grant of anticipatory Bail - possession of properties disproportionate to the known sources of income - petitioner submits that neither proper inquiry was conducted by informant nor by proper authority to trace out the actual income and expenditure of petitioner and his wife namely, Prabha Kumari and without proper enquiry present case has been lodged - HELD THAT:- In the instant case, every single amount received by the appellant has been proved on record through the testimony of the witnesses and is also supported by contemporaneous documents and intimations to the Government. It is not the case that the receipts so projected were bogus or was part of a calculated device. The fact that these amounts were actually received from the sources so named is not in dispute. Furthermore, these amounts are well reflected in the income tax....... + More
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2023 (3) TMI 1003
Promotion of investments by providing structured packages for eligible projects - Tamil Nadu Industrial Policy 2007 - G.O.Ms.No.180, Industries (MIB.1) Department dated 30.09.2008 - HELD THAT:- There is really no effective defence from the State as far as this aspect of the matter is concerned and I concur with the petitioner on the position of law qua this issue. If the Court were to ultimately accept the stand of the petitioner, then the mere fact that the State has hurriedly issued a clarification pending Writ Petition, is certainly going to have no effect on such a decision - the amendment to G.O.Ms.No.150, by virtue of G.O.No.235 dated 02.12.2022 is irrelevant and in bad taste. If at all, the State were confident in its stand, it ought to have rested content with the documentation, as available. Thus, and being of the view that the c....... + More
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2023 (3) TMI 938
Seeking attachment of amount lying in the hands of AWHO who is indebted to pay the amount in order to enable the respondent to release the amount in favour of the petitioner - Existence of Arbitrable Disputes - Forum shopping - Notice of Invocation under Section 21 of Arbitration and Conciliation Act, 1996. Existence of Arbitrable Disputes - HELD THAT:- In the present case, though a proceeding may have been initiated by the petitioner before the NCLT asserting that there is an admitted debt as has been pointed out by the respondent, but a mere assertion would not make it into an admitted liability especially when the respondent has been refuting it at every forum and in every proceeding - It is quite evident that there is consistent stand of the respondent challenging the amounts claimed by the petitioner. Clearly, there are arbitrable di....... + More
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2023 (3) TMI 880
Dishonour of Cheque - existence of legally enforceable debt or not - judgment of acquittal is reversed - both the parties undertook the burden to prove on their shoulders - whether the Respondent is successful in rebutting the presumption and whether the Appellate Court was right in reversing the findings of the trial Court? HELD THAT:- The law on the point of drawing of presumption and rebuttal of presumption is well settled. The presumption under Sections 118 and 139 of the NI Act were incorporated in the Act so as to enhance the reliability of negotiable instrument. On the basis of negotiable instruments, parties transfer the amount. Parties trust negotiable instruments. So, in order to boost it, these presumptions are incorporated in negotiable instrument. On one hand, there is a presumption attached to negotiable instrument and on th....... + More
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2023 (3) TMI 792
Restriction on having current account with other banks if that customer already had credit facilities in the form of Cash Credit/Export Packing Credit (CC/EPC) in the banking system. - RBI banking Policy - Seeking release of attachment of petitioner's accounts Petition tells us that with HDFC Bank, Jindal Cocoa has a current account. It also had availed certain Export Packing Credit facilities - Jindal Cocoa claims that HDFC Bank wrongfully reversed and withheld some amounts of interest subvention and wrongfully levied penal interest and other charges, debiting these to Jindal Cocoa’s current account and EPC facilities. HELD THAT:- As respondents point out, the entire purpose of the circular is to protect lending banks and to ensure smooth recovery. The RBI’s Affidavit notes the prevalence and upsurge of frauds by diversio....... + More
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2023 (3) TMI 731
Doctrine of Eclipse (any law which is inconsistent with fundamental rights is not invalid) - Constitutional validity of the Andhra Pradesh Micro Finance Institutions (Regulation of Money Lending) Act, 2011 and Telangana Micro Finance Institutions (Regulation of Money Lending) Act, 2011 - Challenge on the ground that it was beyond the legislative competence of the Andhra Pradesh Legislature - HELD THAT:- Though the initial challenge to the 2011 Act was on the ground of lack of legislative competence, during pendency of the writ petitions, Supreme Court in Nedumpalli Finance Company Limited v. State of Kerala [2022 (5) TMI 702 - SUPREME COURT], declared the Gujarat Money Lenders Act, 2011 (Gujarat Act) as unconstitutional. The aspect relating to protecting the interest of the borrowers which is sought to be achieved by the State enactments ....... + More
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2023 (3) TMI 685
Dishonor of Cheque - insufficient funds - compounding of offences - Section 147 of NI Act - HELD THAT:- Having taken note of the fact that entire amount of compensation stands paid to the respondent-complainant and the respondent-complainant has no objection in compounding the offence, this Court sees no impediment in accepting the prayer made on behalf of the petitioneraccused for compounding of offence while exercising power under Section 147 of the Act as well as in terms of guidelines issued by the Hon’ble Apex Court in DAMODAR S. PRABHU VERSUS SAYED BABALAL H. [2010 (5) TMI 380 - SUPREME COURT], wherein the Hon’ble Apex Court has held that since Section 147 was inserted by way of an amendment to a special law, the same will override the effect of Section 320(9) of the CrPC, especially keeping in mind that Section 147 carr....... + More
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2023 (3) TMI 531
Dishonour of Cheque - compounding of offences - instant complaint has been filed at a time when no cause of action was available to the opposite party - HELD THAT:- The petitioner no. 1 company is ready to pay to the opposite party the amount of the cheque dishonoured, (in respect whereof the present proceeding has been initiated) by the said demand draft. The impugned proceeding is a gross abuse of the process of court which if allowed to continue for a single day more beyond the stage it has already reached, will degenerate itself into a weapon of harassment and persecution and as such the same is liable to be quashed for the ends of justice - That it is expedient in the interest of justice, to uphold the dignity of law that the impugned proceeding is quashed. Vide order dated 07.12.2018 the Learned Magistrate was pleased to take cogniz....... + More
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2023 (3) TMI 491
Dishonour of Cheque - essential ingredients of Section 141 of the Negotiable Instruments Act, 1881, fulfilled or not - the case is that the petition of complaint has failed to mention the specific role of the petitioner in order to link the petitioner to the offence as alleged in the complaint - HELD THAT:- In the present case, the Magistrate took evidence on affidavit along with documents under Section 200 Cr.P.C. and considered the case to be suitable for issuing process under Section 202 Cr.P.C. on examination of the documents and the evidence of the complainant on affidavit and being satisfied as to the sufficiency of grounds for proceeding under Section 202 Cr.P.C. Thus the order under revision dated 24.02.2016 passed by the learned Metropolitan Magistrate, 6th Court, Calcutta being in accordance with law (Re expeditious trial of cases u/s 138 of the N.I. Act, needs no interference. Revision dismissed.
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2023 (3) TMI 490
Seeking grant of bail - Petition is listed under the caption “For Dismissal” - HELD THAT:- The perusal of the Farad sheet shows that the Petitioner has not appeared in the matter after the order has been passed regarding bail. But considering that prayer regarding grant of bail is sought in the Civil Writ Petition, the judgment of Division Bench of this court in the case of NAGPUR CABLE OPERATORS' ASSOCIATION VERSUS COMMISSIONER OF POLICE, NAGPUR AND ORS. [1995 (8) TMI 342 - BOMBAY HIGH COURT] will have to be noted. The Division Bench expounded the law as to in which circumstances criminal writ petition should be filed and in which circumstances civil writ petition needs be filed. The Division Bench has observed that if the writ petition/application under Articles 226 and/or 227 of the Constitution arises out or relates to....... + More
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2023 (3) TMI 431
Dishonour of Cheque - signatory of the cheque, authorized by the "Company", is the “drawer" of the cheque or not - ratio decidendi/obiter dicta - whether such signatory could be directed to pay interim compensation in terms of section 143A of the Negotiable Instruments Act, 1881 living aside the company? - deposit of a minimum sum of 20% of the fine or compensation is necessary under Section 148 of NI Act in an appeal filed by persons other than "drawer" against the conviction and sentence under section 138 of the NI Act or not? HELD THAT:- A legal entity has rights and responsibilities and the capacity to sue and be sued under the law. Legal persons, being the artificial creations of the law, maybe as many kinds as the law pleases. They include corporations or companies. A legal person is any subject matter....... + More
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2023 (3) TMI 420
Suit for declaration instituted by respondent nos. 1, 2 and 3/ original plaintiffs - maintainability of the suit before a Civil Court - As the original borrower defaulted in repaying the loan, appellant-bank initiated proceedings under Section 13 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 - HELD THAT:- The underlying principle forming the basic layout and purpose of the introduction of the SARFAESI Act has remained unchanged since the time of its incorporation. It is abundantly clear from a bare reading of Section 34 of SARFAESI Act that the same is applicable to only such cases which are governed by and thus are within the purview of the SARFAESI Act or the RDDBFI Act. A perusal of the whole SARFAESI Act reveals that there is no bar of any kind for a Civil Court to proceed ....... + More
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2023 (3) TMI 383
Debarment/Blacklisting form participation in Production Linked Incentive Scheme (PLI Scheme) - grievance is that JBM Electric (and by association, all companies which were part of the JBM Group, which included JBM Ecolife) had been debarred from participation in all future tenders and the interconnected PLI Scheme up until 31.03.2027 - main thrust of its appeal was that it had been knocked out of the race for being awarded the subject contract, although it had tendered the lowest bid, albeit, only on the ground that its sister concern i.e., JBM Electric had been debarred/blacklisted - violation of principles of natural justice. Whether debarment/blacklisting of JBM Electric by MHI in the given circumstances was justified? - if the Court were to hold that MHI was not justified in debarring/blacklisting JBM Electric, what impact it would ha....... + More
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2023 (3) TMI 378
Dishonour of Cheque - Rejection of claim against the Opposite Party Nos.2 and 3/Bank who failed to discharge their duty and service to him as per the RBI guidelines - illegality in not intimating regarding the status of the cheque deposited by him in the said bank in spite of several approach made by him. HELD THAT:- From the materials on record, it is clear that the Petitioner has presented a counter-foil dated 12.06.2017 with bank seal as proof that his deposit was duly acknowledged by the bank. However, generally in banks, the cheques are dropped in a "Drop in Box" and no receipt is issued. If the depositor insists for the receipt, the counterfoil of the pay-in-slip is stamped and is returned to the depositor. But, this does not signify that the deposit via cheque is successful from the Bank’s end. The depositor is usua....... + More
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2023 (3) TMI 377
Refusal to issue a ‘No Objection Certificate’ (NOC) in favour of the petitioner so as to enable him to get his full pension after his superannuation on 31.10.2017 - refusal to release the leave encashment and gratuity payable - the only reason on which the petitioner has been denied his terminal benefits and full pension, is that, in a Special Audit conducted for the Punjab Bhawan, for the period between 2002-2003 and 2003-2004, some irregularities were pointed out - HELD THAT:- Once it is an admitted position that, even after five years since the petitioner’s superannuation neither any criminal proceedings, nor any departmental proceedings, have been initiated against him, there is absolutely no justification on the part of the respondents in withholding the petitioner’s terminal dues. An employee after rendering ....... + More
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2023 (3) TMI 376
Suit for recovery of money - Loan or gift. Whether the plaintiff had given a loan to the defendant in each of the suits and if so, on what terms, if any, as to repayment and interest? - HELD THAT:- The defendant had set up a sole defence that the amounts were being remitted by the plaintiff regularly to the accounts of various family members as gift, but the entire amount was being credited back to the Chirag International Pvt. Ltd., a Company held by the plaintiff in Sri Lanka. It was his defence that the money, though being shown as a gift to defendant and other family members, was being remitted back immediately to the plaintiff in a circuitous manner. It was first transferred to Vipin Enterprises and the Dinesh International Pvt. Ltd. which were the family Companies/Partnership Firms and thereafter, transferred to Chirag Pvt. Ltd. loc....... + More
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2023 (3) TMI 224
Dishonor of Cheque - failure to complete part of the promise - legal and legitimate dues or not - signatory of the cheque - vicarious liability for an offence - HELD THAT:- The Hon'ble Supreme Court in the case of ALKA KHANDU AVHAD VERSUS AMAR SYAMPRASAD MISHRA & ANR. [2021 (3) TMI 381 - SUPREME COURT] has set out preconditions for a person to be prosecuted under Section 138 of the Negotiable Instruments Act. It was held that there is no question of invoking Section 141 of the NI Act against the appellant, as the liability is the individual liability (may be a joint liabilities), but cannot be said to be the offence committed by a company or by it corporate or firm or other associations of individuals. It is, thus, settled that the complainant has to make specific averments as are required under the law in order to hold the accuse....... + More
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