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Indian Laws - Case Laws
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2023 (1) TMI 1469
Invocation of fundamental rights - right to free speech - claim of fundamental rights against anyone other than the State or its instrumentalities - Protection of rights of a citizen under Article 21 of the Constitution of India even against a threat to the liberty of a citizen by the acts or omissions of another citizen or private agency - role and responsibility of a Minister and the vicarious liability/responsibility of a Government to any statement made by him - statement by a Minister, inconsistent with the rights of a citizen under PartIII of the Constitution, constitutes a violation of such constitutional rights (constitutional tort).
AS PER (S. Abdul Nazeer), (B.R. Gavai), (A.S. Bopanna) and (V. Ramasubramanian).
Whether the grounds specified in Article 19(2) in relation to which reasonable restrictions on the right to free speech can be imposed by law are exhaustive, or can restrictions on the right to free speech be imposed on grounds not found in Article 19(2) by invoking other fundamental rights? - HELD THAT:- The grounds lined up in Article 19(2) for restricting the right to free speech are exhaustive. Under the guise of invoking other fundamental rights or under the guise of two fundamental rights staking a competing claim against each other, additional restrictions not found in Article 19(2), cannot be imposed on the exercise of the right conferred by Article 19(1)(a) upon any individual.
Whether a fundamental right under Article 19 or 21 can be claimed against anyone other than the State or its instrumentalities? - HELD THAT:- A fundamental right under Article 19/21 can be enforced even against persons other than the State or its instrumentalities.
Whether the State is under a duty to affirmatively protect the rights of a citizen under Article 21 of the Constitution of India even against a threat to the liberty of a citizen by the acts or omissions of another citizen or private agency? - HELD THAT:- The State is under a duty to affirmatively protect the rights of a person under Article 21, whenever there is a threat to personal liberty, even by a nonState actor.
Can a statement made by a Minister, traceable to any affairs of the State or for protecting the Government, be attributed vicariously to the Government itself, especially in view of the principle of Collective Responsibility? - HELD THAT:- A statement made by a Minister even if traceable to any affairs of the State or for protecting the Government, cannot be attributed vicariously to the Government by invoking the principle of collective responsibility.
Whether a statement by a Minister, inconsistent with the rights of a citizen under PartIII of the Constitution, constitutes a violation of such constitutional rights and is actionable as ‘Constitutional Tort’? - HELD THAT:- A mere statement made by a Minister, inconsistent with the rights of a citizen under PartIII of the Constitution, may not constitute a violation of the constitutional rights and become actionable as Constitutional tort. But if as a consequence of such a statement, any act of omission or commission is done by the officers resulting in harm or loss to a person/citizen, then the same may be actionable as a constitutional tort.
The writ petition and the special leave petition are directed to be listed before the appropriate bench after getting orders from Hon’ble the Chief Justice of India.
AS PER NAGARATHNA, J.
Are the grounds specified in Article 19(2) in relation to which reasonable restrictions on the right to free speech can be imposed by law, exhaustive, or can restrictions on the right to free speech be imposed on grounds not found in Article 19(2) by invoking other fundamental rights? - HELD THAT:- It is for the Parliament in its wisdom to enact a legislation or code to restrain, citizens in general and public functionaries, in particular, from making disparaging or vitriolic remarks against fellow citizens, having regard to the strict parameters of Article 19(2) and bearing in mind the freedom under Article 19(1) (a) of the Constitution of India.
Can a fundamental right under Article 19 or 21 of the Constitution of India be claimed other than against the ‘State’ or its instrumentalities? - HELD THAT:- It is also for the respective political parties to regulate and control the actions and speech of its functionaries and members. This could be through enactment of a Code of Conduct which would prescribe the limits of permissible speech by functionaries and members of the respective political parties.
Whether the State is under a duty to affirmatively protect the rights of a citizen under Article 21 of the Constitution of India even against a threat to the liberty of a citizen by the acts or omissions of another citizen or private agency? - HELD THAT:- Any citizen, who is prejudiced by any form of attack, as a result of speech/expression through any medium, targeted against her/him or by speech which constitutes ‘hate speech’ or any species thereof, whether such attack or speech is by a public functionary or otherwise, may approach the Court of Law under Criminal and Civil statutes and seek appropriate remedies. Whenever permissible, civil remedies in the nature of declaratory remedies, injunctions as well as pecuniary damages may be awarded as prescribed under the relevant statutes.
Can a statement made by a Minister, traceable to any affairs of State or for protecting the Government, be attributed vicariously to the Government itself, especially in view of the principle of Collective Responsibility? - HELD THAT:- A statement made by a Minister if traceable to any affairs of the State or for protecting the Government, can be attributed vicariously to the Government by invoking the principle of collective responsibility, so long as such statement represents the view of the Government also. If such a statement is not consistent with the view of the Government, then it is attributable to the Minister personally.
Whether a statement by a Minister, inconsistent with the rights of a citizen under Part Three of the Constitution, constitutes a violation of such constitutional rights and is actionable as ‘Constitutional Tort’? - HELD THAT:- A proper legal framework is necessary to define the acts or omissions which would amount to constitutional torts, and the manner in which the same would be redressed or remedied on the basis of judicial precedent. It is not prudent to treat all cases where a statement made by a public functionary resulting in harm or loss to a person/citizen, as constitutional torts - Public functionaries could be proceeded against personally if their statement is inconsistent with the views of the Government. If, however, such views are consistent with the views of the Government, or are endorsed by the Government, then the same may be vicariously attributed to the State on the basis of the principle of collective responsibility and appropriate remedies may be sought before a court of law.
Conclusion - i) On question 1, all the judges gave same view. ii) On question 2, majority held that 'A fundamental right under Article 19/21 can be enforced even against persons other than the State or its instrumentalities', wheras Hon'ble Nagarathna. J held that 'A a fundamental right under Article 19/21 cannot be enforced against persons other than the State or its instrumentalities. However, they may be the basis for seeking common law remedies.' iii) On question 3, majority held that 'The State is under a duty to affirmatively protect the rights of a person under Article 21, whenever there is a threat to personal liberty even by a private actor.' wheras Hon'ble Nagarathna. J held that 'The duty cast upon the State under Article 21 is a negative duty not to deprive a person of his life and personal liberty except in accordance with law.' iv) On question 4, majority held that 'A statement made by a Minister even if traceable to any affairs of the State or for protecting the Government, cannot be attributed vicariously to the Government by invoking the principle of collective responsibility.' wheras Hon'ble Nagarathna. J held that 'A statement made by a Minister if traceable to any affairs of the State or for protecting the Government, can be attributed vicariously to the Government by invoking the principle of collective responsibility, so long as such statement represents the view of the Government also. If such a statement is not consistent with the view of the Government, then it is attributable to the Minister personally.' v) On question 5, majority held that 'A mere statement made by a Minister, inconsistent with the rights of a citizen under Part-III of the Constitution, may not constitute a violation of constitutional rights and become actionable as a Constitutional tort.' whereas Hon'ble Nagarathna. J held that 'A proper legal framework is necessary to define the acts or omissions which would amount to constitutional torts, and the manner in which the same would be redressed or remedied on the basis of judicial precedent. It is not prudent to treat all cases where a statement made by a public functionary resulting in harm or loss to a person/citizen, as constitutional torts.'
Petitions are directed to be listed before an appropriate Bench after seeking orders of Hon’ble the Chief Justice of India.
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2023 (1) TMI 1453
Challenge to order/s refusing to stay the proceedings under Section 138 of the Negotiable Instruments Act, 1881 - applicant submitted that in view of the commencement of interim moratorium in terms of Section 96 of IBC, the proceedings under Section 138 of NI Act shall be deemed to have been stayed - HELD THAT:- The contention of learned Advocate for the respondent-NSEL that NSEL is not a party to the proceedings, will be of no consequence. Admittedly, the SBI has filed a petition before National Company Law Board against the applicant herein to initiate Insolvency Resolution Process. It is necessary to have a glance at the relevant provisions of IBC. Chapter III of IBC speaks of Insolvency Resolution Process. Section 94 thereof pertains to the application by debtor to initiate the Insolvency Resolution Process. Under Section 95 of IBC, a creditor may move an application to initiate the Insolvency Resolution Process.
The adjudicating authority is expected to pass an order either allowing or rejecting the application under Section 94 or under Section 95, as the case may be. If the application is admitted under section 100 of IBC, moratorium shall commence in relation to all the debts and shall cease to have effect at the end of the period of 180 days beginning with the date of admission of the application or on the date, the Adjudication Authority passes an order on the repayment plan under Section 114 of IBC, whichever is earlier.
Section 41 of the Indian Evidence Act speaks of a final judgment, order or decree of a Competent Court, in the exercise of insolvency jurisdiction, operates as a judgment “in rem” - On going through the scheme of Insolvency Resolution Process contained in Chapter III of IBC, the contention of learned Advocate for respondent-NSEL that proceeding under Section 95 of IBC and outcome thereof is a party specific (parties to the said proceeding only), can not be accepted.
Conclusion - i) The interim moratorium under IBC applies broadly to any debt-related legal proceedings, including those under the NI Act, irrespective of whether the creditor is a party to the insolvency proceedings. ii) The proceedings under Section 138 of the NI Act should be stayed during the interim moratorium period as per Section 96 of the IBC, thereby the applications for stay allowed.
Criminal Application are allowed.
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2023 (1) TMI 1440
Contempt for willful breach of the undertakings - Suit for possession - abuse of the legal process to obstruct the execution of a judgment and decree - HELD THAT:- This Court is aware that the power to punish for contempt must be exercised with utmost caution. In so far as the order on sentence is concerned, as Respondent no.1 contemnor has already been held guilty for contempt and considering his conduct, as aforesaid, this Court sentences Respondent no.1 contemnor, Mr. Ankur Jain to undergo three (3) months simple imprisonment along with a fine of Rs. 2,000/- and in default of payment of fine, he shall further undergo 15 days simple imprisonment.
The Registrar General of this court is directed to take necessary steps to have the convicted contemnor taken into custody and cause him to be sent to Central Jail, Tihar under appropriate warrant of commitment for undergoing the sentence awarded as above.
Conclusion - Judicial orders must be obeyed and that abuse of the legal process will not be tolerated.
The present contempt petition and all the pending applications, if any, are disposed of.
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2023 (1) TMI 1436
Dishonour of Cheque - Declination of request of the petitioner to amend complaint bearing No.1 dated 02.01.2013 - permissibility of amendment of the complaint filed under Section 138 of NI Act - HELD THAT:- A Constitution bench of the Supreme Court in UNION OF INDIA AND ANOTHER VERSUS TULSIRAM PATEL AND OTHERS [1985 (7) TMI 371 - SUPREME COURT] while dealing with omission to mention the relevant clause of the second proviso or the relevant service rules in the impugned order has held that order cannot be invalidated if power exists and wrong provision is invoked. Hon’ble Court has held 'The omission to mention in the impugned orders the relevant clause of the second proviso or the relevant service rule will not, therefore, have the effect of invalidating the orders and the orders must be read as having been made under the applicable clause of the second proviso to Article 311(2) read with the relevant service rule. It may be mentioned that in none of the matters before us has it been contended that the disciplinary authority which passed the impugned order was not competent to do so.'
Case in hand relates to proceedings under Section 138 of NI Act, 1881. The proceedings under Section 138 of NI Act are quasi criminal in nature and intent is to recover cheque amount by way of summary proceedings. Hon’ble Supreme Court in many cases has adverted with nature of proceedings under Section 138 of NI Act.
A two judge bench of Hon’ble Supreme Court in LAFARGE AGGREGATES & CONCRETE INDIA P. LTD. VERSUS SUKARSH AZAD & ANR. [2013 (9) TMI 1188 - SUPREME COURT], dealt with an order where High Court had ex-parte set aside complaint filed under Section 138 of NI Act on the ground that accused offered to pay cheque amount, however, complaint refused to accept and insisted for pursuing the trial.
In the case in hand, there is no dispute with respect to running number mentioned on the cheque in question, date in terms of day and month as well amount mentioned therein. As per petitioner, year 2010 instead of 2012 has been mentioned in all the documents i.e. notice, complaint, notice of requisition etc. The petitioner wants to substitute year 2010 mentioned in different documents by 2012 mentioned on the cheque in question. The respondent is opposing correction/amendment of year on the ground that amendment at this belated stage of trial is not permissible, it would amount to filling up of lacuna and mistake could have be in one document whereas petitioner in all the documents has mentioned year 2010.
If amendment of complaint is not permitted, it may prove fatal to the case of the complainant. On account of clerical mistake which was neither noticed by petitioner nor his counsel, the substantial claim of the drawer may be defeated. An accused cannot be let free just because there is some mistake on the part of complainant. If charge may be amended at any time prior to pronouncement of judgment and parties may be permitted to lead additional evidence even at appellate stage, it seems to be harsh and there would be travesty of justice if a mistake which is unintentional, is not permitted to be corrected. The mistake in question cannot be called as incurable mistake - respondent cannot claim that he was pursuing a case with respect to a different cheque and cross examination took place with respect to different cheque. The application was filed prior to completion of prosecution evidence and defence still has to lead evidence, thus, respondent cannot claim loss of opportunity or actual prejudice except bald averment. The respondent is attempting to claim benefit of mistake of the petitioner.
Conclusion - The amendment of the complaint was permissible and necessary to correct an unintentional clerical error.
The present petition deserves to be allowed and accordingly allowed.
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2023 (1) TMI 1423
Maintainability of the writ petition under the SARFAESI Act - Non-consideration of viability plan by the respondent Bank - Compliance with the RBI Circular R.F. 2.0 for restructuring MSME loans - HELD THAT:- The allegations of the respondent Bank that the rejection of disbursement of further credit facilities to the petitioner no. 1 on 9.11.2021 was on the ground of non-perfection of security interest is sufficiently belied by the facts before the Court. The petitioner's wife passed away on 11.10.2020 during the Pandemic and the petitioner no. 1 applied for the loan in July 2021. The petitioner no. 2 thereafter filed appropriate proceedings before the Court in New Delhi under the Guardian and Wards Act, 1890 which was allowed on 11.7.2022. This was done at the direction of the respondent Bank and for the purpose of perfecting the security interest since the Flat in Delhi, which was given as security for the restructuring, was in the name of the petitioner no. 2 and his wife. In any event, the petitioner no. 2's son attained majority on 8.8.2022 and the petitioners can therefore take appropriate steps in respect of the Delhi Flat to clear the loans. The stand of the respondent Bank is patently unreasonable.
The conclusions of the Court are strengthened by a broader view of both the parties being benefited if the respondent Bank permits the petitioners to service their loans which the petitioners are admittedly in a position to do in the changed circumstances. This Court is unable to comprehend as to why the respondent Bank would invoke proceedings where the respondent Bank would not only have to engage in adversarial proceedings but also wait for a considerable time before the loan accounts of the petitioners are clear or settled or closed. The facts and the materials placed before the Court persuade the Court to hold that the respondent no. 1 Bank precipitated the events culminating in the issue of the impugned Notice under the SARFAESI Act without proper application of mind and due exercise of discretion.
Appeal allowed by a declaration that the impugned Notice dated 27.4.2022 is liable to be quashed restraining the respondents from proceeding in accordance with the said impugned Notice as also the letter dated 30.11.2021.
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2023 (1) TMI 1422
Dishonour of Cheque - complainant has failed to show any legally enforceable debt or liability - - rebuttal of presumption - offence is made out under Section 138 of the N.I. Act or not - acquittal under Section 251(1) of the Code of Criminal Procedure - HELD THAT:- The evidence in this case reflects that no probable defence has been created by the accused nor the accused has been able to dislodge or rebut the prosecution evidence. As such there is no scope for interference with the order of appeal so passed.
Accordingly, the judgment and order in Criminal Appeal 195 of 2019 is hereby affirmed - Appeal dismissed.
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2023 (1) TMI 1412
Grant of bail - Illegal smuggle of cattle to Bangladesh - conspiracy with BSF and customs officials - Gravity of seriousness of the accusation - Materials collected in support of the accusation - Influencing witnesses and derailing investigation - Bail on parity – circumstances peculiar to the petitioner.
Gravity of seriousness of the accusation - HELD THAT:- Petitioner as a powerful political personality illegally aided and abetted the cattle smuggler Md. Enamul Haque in the venture. He used his influence to ensure smooth passage of cattle through the Districts of Birbhum and Murshidabad to reach the international border in lieu of wrongful gains and amassed enormous illegitimate wealth. It is contended he is not the principal offender. As per prosecution case, power and influence of the petitioner was essential for the smooth operation of the cattle smuggling syndicate in the Districts of Birbhum and Murshidabad. Without his patronage the organized crime could not have been perpetuated. His role in the crime is pivotal and cannot be discounted as a minor one - the arrest of the petitioner cannot be said to be unlawful or actuated with malice. On the other hand, it appears to be founded on the gravity and the seriousness of the accusation levelled against him.
Materials collected in support of the accusation - HELD THAT:- The materials on record are corroborated by regular telephonic communications between Md. Enamul Haque, Sehgal Hossain and the petitioner. Materials collected during investigation indicate that petitioner used to talk with other conspirators through the mobile phone of co-accused Sehgal. It is argued the contents of their conversations are unknown. It is relevant to note CDRs show meeting of minds between the conspirators. Nature of the deliberations can be inferred from the statement of Sk Abdul who endorses payments made to petitioner by the cattle smuggler Md. Enamul Haque through Sehgal and another co-accused. These circumstances give rise to a reasonable inference of conspiracy. Once existence of conspiracy is shown, acts of each conspirator in pursuance of the common intention would bind the others and establish their culpability - Hence, there are ample materials collected during investigation implicating the petitioner in the crime.
Influencing witnesses and derailing investigation - HELD THAT:- Though no medical papers in support of such assault were placed, the State Police Administration in post haste obtained police custody of the petitioner in the said case - To avoid pre-judging the issue we choose not to make any comment with regard to its legality save and except observing the arrest and police custody of the petitioner in the belated FIR registered against him appears to be an overzealous and unjustified exercise for reasons not far to seek.
Petitioner continues to hold political office and materials show he is involved in intimidation of witnesses - Further investigation with regard to the illegitimate wealth amassed by the petitioner through wrongful gain is continuing. To release of the petitioner on bail at this stage would adversely affect the morale and confidence of witnesses and seriously impact the collection of evidence during further investigation.
Bail on parity – circumstances peculiar to the petitioner - HELD THAT:- The public servant, i.e., Satish Kumar has also been enlarged on bail. Hence, petitioner ought to be released on bail on parity. Md. Enamul Haque was released on bail by the Apex Court after one year. Petitioner is in custody for about 5 months. He cannot claim parity with Md. Enamul Haque. In addition thereto, petitioner continues to hold a powerful political post. He has overwhelming influence not only in society but upon the State administration - Paramount influence of the petitioner as a political heavy weight and materials collected showing misuse of such power to influence witnesses and derail the investigation places him in a unique position in comparison to others who are on bail. Enlargement of the petitioner on bail would have an ominous impact not only on the witnesses but on the smooth administration of criminal justice in the case.
The petitioner cannot be enlarged on bail at this stage - petition dismissed.
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2023 (1) TMI 1411
Setting aside of penalty imposed by the disciplinary authority - direction to Appellant(s) to reinstate him in service with notional benefits without any back wages - HELD THAT:- The disciplinary authority imposed the penalty of dismissal after holding the departmental enquiry and after following the due procedure as required Under Rule 27 of the CRPF Rules, 1955 and after having held the charges and misconduct proved. The charges and misconduct held to be proved against the Respondent who was serving in CRPF, a disciplined force can be said to be a grave and serious misconduct - The misconduct committed by the Respondent is of insubordination also. The misconduct of misbehaving with the superior/senior officer and of insubordination can be said to be a very serious misconduct and cannot be tolerated in a disciplined force like CRPF and therefore, as such the Division Bench of the High Court is not justified in observing that on the proved charges and misconduct penalty of dismissal can be said to be disproportionate.
While holding that the penalty of dismissal can be said to be disproportionate to the gravity of the wrong, what is weighed with the Division Bench of the High Court is that as the Respondent was found to be in a state of intoxication when not on duty and considering Section 10, he is deemed to have committed a less heinous offence. Whether a member of the force has committed a heinous offence or a less heinous offence as per Sections 9 and 10 of the CRPF Act, 1949 would have bearing on inflicting the punishment as provided Under Sections 9 and 10 but has no relevance on the disciplinary proceedings/departmental enquiry for the act of indiscipline and/or insubordination.
In the case of Surinder Kumar [2011 (10) TMI 684 - SUPREME COURT], it is observed that even in a case when a CRPF personnel was awarded imprisonment Under Section 10(n) for an offence which though less heinous, he can be dismissed from service, if it is found to be prejudicial to good order and discipline of CRPF. Under the circumstances, the reasoning given by the High Court that as the Respondent is deemed to have committed a less heinous offence, the order of penalty of dismissal can be said to be disproportionate is not required to be accepted.
It is required to be observed that even while holding that the punishment/penalty of dismissal disproportionate to the gravity of the wrong, thereafter, no further punishment/penalty is imposed by the Division Bench of the High Court except denial of back wages. As per the settled position of law, even in a case where the punishment is found to be disproportionate to the misconduct committed and proved the matter is to be remitted to the disciplinary authority for imposing appropriate punishment/penalty which as such is the prerogative of the disciplinary authority. On this ground also, the impugned judgment and order passed by the Division Bench of the High Court is unsustainable.
As the order of penalty/punishment cannot be said to be disproportionate, there is no question of remanding the matter back to the disciplinary authority.
The impugned judgment and order passed by the High Court setting aside the order of penalty of dismissal and reinstating the Respondent is hereby quashed and set aside - Appeal allowed.
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2023 (1) TMI 1398
Rejection of Petitioners/Plaintiffs' application for summary judgment - commercial suit instituted for recovery of money with interest - whether the application for Summary Judgment of the Petitioners/Plaintiffs is required to be considered under the provisions of Order XXXVII or Order XIII A of the Code? - time limitation.
HELD THAT:- This confusion is created essentially on account of reliance placed on provisions of Order XXXVII of the Code as well as on judgment in IDBI TRUSTEESHIP SERVICES LTD. VERSUS HUBTOWN LTD. [2016 (11) TMI 1529 - SUPREME COURT] laying down broad principles on the issue of grant of leave to defend under those provisions. These submissions created an impression as if the Petitioners/Plaintiffs are pressing their claim under the provisions of Order XXXVI of the Code. However, as the submissions of the rival parties progressed it became apparent that Plaintiffs' claim is required to be considered under the provisions of Order XIII-A of the Code. To achieve more clarity, it would be profitable to make reference to the order passed by the City Civil Court on November 22, 2019 when Unregistered Summons for Judgment was filed by Plaintiffs under the provisions of Order XXXVII of the Code.
Thus, as per order dated November 22, 2019, Plaintiffs' application came to be numbered as the one for Summary Judgment under the provisions of Order XIII-A of the Code. Therefore, the provisions of Order XXXVII of the Code would not be directly relevant while examining correctness of the impugned order dated August 11, 2021 passed by the City Civil Court.
Now that a clarity is achieved about the exact provision of the Code under which application was filed for Summary Judgment, the objection raised about maintainability of Plaintiffs' application under Order XIII-A of the Code needs to be determined. Relying on provisions of sub-rule (3) of Rule 1 of Order XIII A of the Code, it is contended that since the suit was initially filed as a summary suit, the provisions of Order XIII-A of the Code would have no application to Plaintiffs' suit.
Here again, there is some degree of dispute as to whether the suit was initially filed as a summary suit or not. It was undoubtedly presented as a summary suit. It was however registered as Commercial Suit by the Court on its own. Whether act of 'presentation' would amount to 'filing' within the meaning of sub-rule 3 of Rule 1 of Order XIII A of the Code will have to be decided. Undoubtedly sub-rule 3 of Rule 1 of Order XIII A of the Code uses the word 'filed', and not 'presented' or 'registered' - No doubt Commercial Court is required to pronounce summary judgment in the event it finds that there would be no real prospect of the Defendant successfully defending the claim. It is, therefore, necessary to examine whether there is a possibility of Defendant in the present case defending the claim.
The present case would not be covered by eventuality of clause (a) of Rule 3 of Order XIII A of the Code where this court is in a position to record a finding with degree of certainty that Defendant has no real prospect of successfully defending the claim. Therefore, no case was made out for City Civil Court to pronounce a summary judgment on the claim of Plaintiffs under Order XIII Rule 6 of the Code.
The defence of defendant inter alia on the point of limitation is substantial one considering the fact that plaintiffs demanded the amount by depositing cheques in November 2015. Plaintiffs contend that the defendant requested for deferring the demand, which is required to be proved by adducing evidence as the alleged request is not in the form of a written communication. Thus, it is not possible to record a finding at this juncture that there is certain possibility of success of claim of plaintiffs. To arrive at such that finding, process of trial may have to be undertaken. Therefore, even making of a conditional order under Rule 6(1)(b) of Order XIII A of the Code is not warranted.
Thus, no error is being committed by the City Civil Court in passing the impugned order. The Petition is devoid of merits - petition dismissed.
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2023 (1) TMI 1379
Challenged the order passed by the High Court - Rejection of a request for a 'No Objection Certificate' (NOC) by the District Magistrate for starting a retail outlet dealership - subsequent dismissal of the petition by the High Court based on the filing of an appeal against a previous decree - HELD THAT:- From the documents produced along with the counter affidavit, the respondents have produced the extract of the present case status of FA-16/2022. It is pointed out that the appeal is filed on 11.03.2022 which was registered on 15.03.2022 and the scrutiny for posting the appeal before the Court is yet to be completed.
Though, such contention is put forth by the respondents, keeping in view the provisions as contained in Order 41 Rule 5 of CPC, unless the appeal is listed and there is an interim order, the mere filing of the appeal would not operate as a stay. If that be so, the judgment and decree dated 25.08.2021 would enure to the benefit of the petitioner as on today and the rejection of the NOC only on the ground that the appeal has been filed, would not be justified. In that view, the High Court was also not justified in rejecting the petition.
Accordingly, the Order passed by the High Court of Patna in Civil [2022 (8) TMI 1516 - PATNA HIGH COURT] Writ Jurisdiction is set aside. Consequently, the rejection of the NOC by the District Magistrate is held unjustified and the District Magistrate is directed to take note of the decree passed on 25.08.2022 and issue the NOC within a period of two weeks from this day to the petitioner, which shall however, remain subject to the result of the appeal pending before the High Court.
Petition is accordingly disposed of.
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2023 (1) TMI 1377
Territorial jurisdiction in arbitration proceedings - Challenge to award rendered by the Micro and Small Enterprises, Facilitation Council, Nagpur.
The objection is that the arbitration having been conducted under the MSMED Act in Nagpur and the award having been rendered in Nagpur, the seat of the arbitration in the present case was in Nagpur and, therefore, the challenge to the award would not lie before this Court.
HELD THAT:- The Division Bench of this Court in Indian Oil Corporation Ltd. vs. FEPL Engineering (P) Ltd. [2019 (9) TMI 1701 - DELHI HIGH COURT] proceeds on an interpretation of Section 18(4) of the MSMED Act vis-a-vis the contractual provisions contained in the arbitration clause and the jurisdiction clause of the agreement. However, in the present case, the Purchase Order does not contain an arbitration clause at all. In such circumstances, it is, not possible to hold that the parties agreed to a particular seat of the arbitration which would vest jurisdiction in this Court despite the provisions of the MSMED Act.
In any event, the judgment of the Supreme Court in Gujarat State Civil Supplies Corporation Ltd. [2022 (11) TMI 91 - SUPREME COURT] makes it clear that the provisions of Chapter V of the MSMED Act would override the Arbitration Act and the contractual arrangement.
Thus, the seat of the arbitration, conducted by the Facilitation Council, was in Nagpur and the petition filed before this Court is not maintainable.
The petition, alongwith the pending application, is therefore dismissed as not maintainable.
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2023 (1) TMI 1374
Grant of regular bail - smuggling of Ganja - HELD THAT:- It appears that some of the occupants of the `Honda City’ Car including Praveen Maurya @ Puneet Maurya have since been released on regular bail. It is true that the quantity recovered from the petitioner is commercial in nature and the provisions of Section 37 of NDPS Act may ordinarily be attracted. However, in the absence of criminal antecedents and the fact that the petitioner is in custody for the last two and a half years, the conditions of Section 37 of the Act can be dispensed with at this stage, more so when the trial is yet to commence though the charges have been framed.
Without expressing any views on the merits of the case, the petitioner is directed to be released on bail subject to his furnishing bail bonds to the satisfaction of the Trial Court - SLP disposed off.
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2023 (1) TMI 1362
Challenge to order against acquittal passed by the learned Metropolitan Magistrate - presumption of innocence - benefit of doubt - The case's origin traced back to a marriage in 2001, followed by allegations of dowry harassment and cruelty, leading to various legal proceedings, including FIR registration, charge framing, and acquittals at different judicial level - HELD THAT:- It is well settled that in an appeal against acquittal, the scope of the learned Appellate Court is to the extent that the judgment of acquittal should not be ordinarily interfered with unless the findings in such judgment are shown to be arrived at by incorrect or perverse appreciation of material on record and the law. This settled position of law with respect to the scope of the learned Appellate Court qua an appeal against the acquittal has been considered in a catena of judgments by the Hon'ble Supreme Court.
In Basheera Begam v. Mohd. Ibrahim, [2020 (1) TMI 1681 - SUPREME COURT] the Hon'ble Supreme Court has held When there is circumstantial evidence pointing to the guilt of the accused, it is necessary to prove a motive for the crime. However, motive need not be proved where there is direct evidence. In this case, there is no direct evidence of the crime.
The petitioner had challenged the order of acquittal passed by the learned Metropolitan Magistrate before the learned Sessions Court, and the latter, after examining the records of the case found no anomaly in the impugned judgment and agreed with the view taken by the learned trial Court. In these circumstances, the presumption of innocence qua the respondent has been reinforced twice over.
This Court finds that the learned trial Court as well as the learned Appellate Court has carefully scrutinized the evidence on record and has dealt with each and every issue raised by the petitioner/complainant. The views taken by both the courts below are possible. From the evidence, it is clear that not only the allegation of demand of dowry qua the respondent were vague but the discrepancy in the allegations of harassment and cruelty were substantial to give benefit of doubt to the respondent and acquitting him.
There is no ground made out to interfere with the judgment passed by learned Metropolitan Magistrate and the judgment of the learned Appellate Court dated 21.02.2018, upholding the acquittal of the respondent by the learned trial Court - Petition dismissed.
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2023 (1) TMI 1358
Rejection of bail - alleged commission of offences under Section 20(b)(ii)(C) of NDPS Act - HELD THAT:- Taking into account that the co-accused, who has since been released on bail has not surrendered, this Court is constrained not to entertain the bail application of the petitioner.
It is stated that the petitioner is in custody since 16.06.2020 and considering that his father undergone surgery, as stated, learned Court in seisin is called upon to expedite the trial in respect of the present accused, who is in custody without waiting for the other coaccused, who has failed to surrender.
Application disposed off.
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2023 (1) TMI 1357
Seeking grant of Regular bail - murder - allegation of killing the daughter of the informant on account of nonfulfillment of the demand for dowry by hanging her from a fan - HELD THAT:- Considering the fact that a general and omnibus allegation has been levelled against the accused persons, but the main accused person appears to be the husband of the deceased victim lady whereas, the petitioner is the elder brother-in-law of the deceased victim lady, it is deemed fit and proper to direct for release of the petitioner on bail, immediately upon surrender by the husband of the deceased victim lady before the learned trial court, subject to such conditions as may be deemed fit and proper to be imposed by the learned court of Judicial Magistrate-1st Class, Buxar in connection with Koran Sarai P.S. Case No. 18 of 2021.
Petition disposed off.
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2023 (1) TMI 1355
Seeking to invoke the inherent powers of this Court under Section 401 read with Section 482 Cr.P.C. for recalling, quashing of the proceedings pending before the learned Metropolitan Magistrate, 9th Court, Calcutta - defective products and their replacements - HELD THAT:- The Magistrate was wrong in his findings/reasons that as the accuseds had not entered their appearance (meaning personal appearance) before the court, the application under Section 205 Cr.P.C. be dismissed - the said powers of a Magistrate can be exercised at any stage of proceedings or throughout the said proceedings and as such the said prayer can be considered right from the stage of commencement of the proceedings even at the stage of issuing summons and the accused need not appear personally.
Admittedly the Arbitration clause has not been invoked by the parties. The opposite party has chosen to put the criminal law into motion by initiating the proceedings in this case, alleging breach of contract/trust by the petitioners. The parties to the agreement still have the option to use the Arbitration clause or may seek relief from the appropriate forum, the dispute being civil in nature and also a commercial dispute being given a criminal colour to pressurize the petitioners.
In the present case there is no case against the petitioners that they dishonestly induced the complainant to deliver any property. There was neither any inducement nor any delivery of property as required. As such an essential ingredient required to constitute an offence under Section 420 IPC being prima facie not present, the offence alleged cannot be held to be proved against the petitioners/accused.
From the petition of complaint, no such materials has been produced to prima facie show that the petitioners intentionally with knowledge cheated the complaint. The dispute between the parties is regarding defective products and their replacements (within time). As such the ingredient required to constitute the said offence under Section 418 IPC is also absent against the petitioners - The Supreme Court in Mitesh Kumar J. Sha vs. The State of Karnataka & Ors. [2021 (10) TMI 1423 - SUPREME COURT] while considering an appeal against an judgment and order of the High Court of Karnataka in an application under Section 482 of the Cr.P.C. wherein the prayer of the petitioners for quashing of proceedings of offence punishable under Section 406, 419, 420 read with Section 34 of the IPC was dismissed, held existence of dishonest or fraudulent intention has not been made out against the Appellants. Though the instant dispute certainly involves determination of issues which are of civil nature, pursuant to which Respondent No. 2 has even instituted multiple civil suits, one can by no means stretch the dispute to an extent, so as to impart it a criminal colour.
In the instant case, cognizance has been taken and process has been issued (including attachment and warrant of arrest) by the Magistrate concerned - The materials in the present case including the written complaint clearly shows that there was no dispute from the year 2012 to 2017 (initial period). The ingredients of 'entrustment', dishonest intention leading to delivery of property and cheating with knowledge to cause wrongful loss are not on record. The dispute is clearly civil in nature, may be even a commercial dispute but the ingredients required to constitute the criminal offences alleged are totally absent.
In the Present case there is no substance in the allegations and no material exists to prima facie make out the complicity of the applicants in cognizable offences. As such the proceedings in this case should be quashed by exercising its inherent powers for ends of justice and to prevent the abuse of process of the court.
The criminal revisional application stand allowed.
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2023 (1) TMI 1354
Challenge to summon order - vague summon order - Neither does the summoning order name the Manager or the Chief Manager, JIPL, who have been summoned to stand trial Under Section 406 of the Indian Penal Code, 1860 - HELD THAT:- Criminal breach of trust would, inter alia, mean using or disposing of the property by a person who is entrusted with or otherwise has dominion. Such an act must not only be done dishonestly, but also in violation of any direction of law or any contract express or implied relating to carrying out the trust.
However, in the instant case, materials on record fail to satisfy the ingredients of Section 405 of the Indian Penal Code. The complaint does not directly refer to the ingredients of Section 405 of the Indian Penal Code and does not state how and in what manner, on facts, the requirements are satisfied. Pre-summoning evidence is also lacking and suffers on this account. On these aspects, the summoning order is equally quiet, albeit, it states that "a forged demand of Rs. 6,37,252.16p had been raised by JIPL, which demand is not due in terms of statements by Shubhankar P. Tomar and Sakshi Tilak Chand". A mere wrong demand or claim would not meet the conditions specified by Section 405 of the Indian Penal Code in the absence of evidence to establish entrustment, dishonest misappropriation, conversion, use or disposal, which action should be in violation of any direction of law, or legal contract touching the discharge of trust.
In the present case, the ingredients to constitute an offence Under Section 420 read with Section 415 of the Indian Penal Code are absent. The pre-summoning evidence does not disclose and establish the essential ingredients of Section 415 of the Indian Penal Code. There is no assertion, much less legal evidence, to submit that JIPL had engaged in dishonesty, fraud, or intentional inducement to deliver a property. It is not the case of Respondent No. 2 - complainant that JIPL had tried to deceive them, either by making a false or misleading representation, or by any other action or omission; nor is it their case that JIPL had offered any fraudulent or dishonest inducement to deliver a property. As such, given that the ingredients of Section 415 of the Indian Penal Code are not satisfied, the offence Under Section 420 of the Indian Penal Code is not made out.
The assertions made in the complaint and the pre-summoning evidence led by Respondent No. 2 - complainant fail to establish the conditions and incidence of the penal liability set out Under Sections 405, 420, and 471 of the Indian Penal Code, as the allegations pertain to alleged breach of contractual obligations. Pertinently, this Court, in a number of cases, has noticed attempts made by parties to invoke jurisdiction of criminal courts, by filing vexatious criminal complaints by camouflaging allegations which were ex facie outrageous or pure civil claims - The requirement of Section 204 of the Code is that the Magistrate should carefully scrutinize the evidence brought on record. He/she may even put questions to complainant and his/her witnesses when examined Under Section 200 of the Code to elicit answers to find out the truth about the allegations. Only upon being satisfied that there is sufficient ground for summoning the Accused to stand the trial, summons should be issued.
The High Court, while dismissing the petition filed Under Section 482 of the Code, failed to take due notice that criminal proceedings should not be allowed to be initiated when it is manifest that these proceedings have been initiated with ulterior motive of wreaking vengeance and with a view to spite the opposite side due to private or personal grudge - The inherent powers of the court can and should be exercised in such circumstances. When the allegations in the complaint are so absurd or inherently improbable, on the basis of which no prudent person can ever reach a just conclusion that there is sufficient wrong for proceeding against the Accused, summons should not be issued.
The order of the High Court, the summoning order and the order issuing non-bailable warran passed by the Additional Chief Judicial Magistrate, Court No. 8, Ghaziabad, Uttar Pradesh are set aside and quashed - Appeal allowed.
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2023 (1) TMI 1352
Appointment of Arbitrators - Section 11 of the Arbitration and Conciliation Act, 1996 - HELD THAT:- In the present case, this Court need not devolve into this aspect any further since the petitioner itself has made an alternate prayer that though one petition under Section 11 of the Act has been filed, the Arbitrator may be appointed separately for the four Agreements.
In the present case as well, though there is one Notice of Invocation given, but it clearly states about the four Agreements and about the disputes between the parties. The Notice of Invocation dated 18th July, 2018 may not have been artistically drafted but so long as it fulfills the objective, this technical ground cannot be considered as a ground for disallowing the present petition.
The respondents have made a reference to VIDYA DROLIA AND OTHERS VERSUS DURGA TRADING CORPORATION [2020 (12) TMI 1227 - SUPREME COURT] to state that there are no arbitrable disputes under the Dealership Agreement as the petitioner has failed to follow the procedure as envisaged in Clause 13.4 of the Agreement which stipulates the parties to undergo a consultation before invoking arbitration. This argument also does not hold water for the simple reason that there is no specific procedure for consultation and so long as the parties were corresponding with each other about their disputes and a Notice was given for invoking arbitration, the pre-requisite of consultation is essentially met.
It may be observed that it is not a case where there are no arbitrable disputes. The parties may have approached NCLT or other Forums but the scope of adjudication before each of these Fora is independent and merely because the petitioner had approached Competition Commission of India or is a corporate debtor in the proceedings before the NCLT, cannot be held to be a bar to raise the disputes for adjudication by way of arbitration.
Considering that there is a valid Arbitration Agreement between the parties and in the light of the facts and discussions, Hon'ble Mr. Justice Manmohan Sarin, Retired Chief Justice (Jammu & Kashmir High Court), Mobile No. 9818000210, is hereby appointed as the Sole Arbitrator to adjudicate the disputes between the parties.
Petition disposed off.
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2023 (1) TMI 1344
Seeking grant of pre-arrest bail - forgery - proceedings under Section 82 of CrPC have already been initiated - applicant had not been cooperating with the investigation - HELD THAT:- In the present case, the accused persons are not only found to have committed the offence of cheating but also committed the offence of forgery. The applicant, at this stage, cannot be said to be only an accomplice. The allegations and the investigation carried out till this stage points out towards the active role of the applicant in the commission of the offence - The applicant has not cooperated at all in the investigation, which led to the issuance of non-bailable warrants by the concerned Trial Court. The proceedings under Section 82 of CrPC have already been initiated.
Pre-arrest bail is to be granted only when the court is convinced that circumstances exist to resort to that extraordinary remedy and cannot be a matter of routine. Custodial interrogation is a recognized mode of investigation which is not only permitted but is held to be more effective - Even though the accused Bhuvan Chand is in custody, the forged documents as well as the cheated amount is yet to be recovered. The offence cannot be held to be of minor nature. The applicant has been named by not only the complainant but also other public witnesses to be actively involved with the accused ‘Bhuvan Chand’. It cannot be said that the custodial interrogation of the Applicant is not required at this stage.
The order of bail in anticipation of arrest cannot be granted for it to be used as a shield. In the facts of the present case, it cannot be said, at this stage, that the allegations made against the applicant are frivolous or have been made to falsely implicate the applicant - Keeping in mind the nature of allegations, and the fact that the applicant has not joined and cooperated in investigation which has also led to initiation of proceedings under Section 82 of CrPC, this Court feels that it is not a fit case for exercise of discretion under Section 438 of CrPC.
Application dismissed.
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2023 (1) TMI 1331
Anticipatory Bail - levy of additional condition that to submit passport, if any, before the trial Court and shall not leave India without prior permission of this Court - HELD THAT:- Once the apex Court seized of the matter and the impugned order is under challenge, it would not be proper for this Court to entertain this petition for modification of he order.
Petition dismissed.
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