|
Advanced Search Options
Indian Laws - Case Laws
Showing 21 to 40 of 69 Records
-
2018 (7) TMI 2205 - SUPREME COURT
Minimum tenure for Director General of Police - the Director General of Police will continue for at least two years irrespective of the date of superannuation or not - HELD THAT:- All the States shall send their proposals in anticipation of the vacancies to the Union Public Service Commission, well in time at least three months prior to the date of retirement of the incumbent on the post of Director General of Police - The State shall immediately appoint one of the persons from the panel prepared by the Union Public Service Commission.
The present directions shall be followed scrupulously by the Union of India and all the States/Union Territories. If any State Government/Union Territory has a grievance with regard to these directions, liberty is granted to them to approach this Court for modification of the instant order - Application disposed off - List after two weeks.
-
2018 (7) TMI 2201 - ALLAHABAD HIGH COURT
Dishonor of cheque - insufficiency of funds - legality of summon - Whether in the absence of the company as a party to the complaint, the authorized signatory of the company can be summoned under section 138 N.I. Act or not? - HELD THAT:- The complaint filed under section 138 N.I. Act, in respect of an offence committed by a company i.e. where the cheque is issued on behalf of the company would not be maintainable if the company on whose behalf the cheque has been issued is not impleaded as an accused/opposite party in the complaint. Admittedly, in the complaint filed by opposite party no. 2 before the court below the company namely M/s. Usher Agro Limited was not impleaded as a party to the complaint.
Whether the failure on the part of the complainant to implead the company as an accused/opposite party in the complaint is fatal and incurable? - HELD THAT:- In the present case, the Court finds that the complaint was filed on 30.5.2016. The summoning order was passed on 28.6.2016, the application for impleadment and to summon the additional accused was filed on 23.9.2016, which was allowed on 10.4.2017. Therefore, upto this stage, the Magistrate has not applied his mind to the contents of the complaint. Therefore, the order dated 10.4.2017 passed by the Magistrate cannot be said to be illegal - there is no iota of doubt that in a case under section 138 of the N.I. Act, if the company on whose behalf the disputed cheque was issued was not impleaded, can be subsequently impleaded. However, the only rider to the aforesaid proposition is that the material particulars in respect of the same should be present in the complaint filed under section 138 of the N.I. Act or else the same being barred by limitation cannot be permitted at a belated stage.
In the present case, the complaint was filed on 20.4.2016 and the application to summon the company as an additional accused was filed on 23.9.2016. The omission to implead the company as an accused/opposite party was not such an infirmity which could not have been allowed to be cured as all material particulars necessary for implicating the company as an accused were already pleaded in the complaint dated 20.4.2016. Therefore, there is no illegality was committed by the Court below in passing the order dated 10.4.2017 on the application dated 23.9.2016, filed by the complainant for summoning the company as an accused.
Whether the company namely M/s. Usher Agro Ltd. Could have been summoned under section 319 Cr.P.C. even when no evidence had been recorded by the court concerned? - HELD THAT:- In addition to the aforesaid, an ancillary question shall also arise as to whether the Court below could have summoned the applicant M/s. Usher Agro Ltd, even when the scope of section 319 Cr.P.C. is limited only to post cognizance stage when complicity of person other than those named as an offender comes to light from the evidence recorded in the course of enquiry or trial - there is no provision in the N.I. Act or the Code of Criminal Procedure which prohibits the impleadment of a party to the complaint as an additional accused/opposite party. Similarly, there is no provision either under the N.I. Act or the Code of Criminal Procedure providing for impleadment of a person as an accused/opposite party in a complaint.
The application filled by the applicants for taking cognizance against applicant No. 2 company comes under the purview of Section 190(1) (a) Cr.P.C. because the name of the applicant No. 2/company as an accused and the basis of its accusation were already mentioned in the complaint at the time of its filling. It is the fault of the trial Court which summoned the Director alone and left the company. Such defect is not an incurable defect and can be cured by the trial Court at any time. There is no bar under Section 190 Cr.P.C. that once the process is issued against some accused, on the next date, the Magistrate cannot issue process to some other person against whom there is some material on record.
Petition dismissed.
-
2018 (7) TMI 2191 - SUPREME COURT
Benefits to the officers in service in North Eastern Region of the country - Special (Duty) Allowance - Appellant submits that the claim of Respondents for Special (Duty) Allowance was earlier rejected since, although they were working in the North East Region but their Headquarters were in Shivpuri/Gwalior - whether the benefit of the Office Memorandum is to be given with effect from 03.08.2005 only or the benefit of Special (Duty) Allowance is admissible after Office Memorandum dated 14.12.1983 was decided to be extended to CRPF personnel in the year 1987?
HELD THAT:- The main Office Memorandum by which Special (Duty) Allowance was decided to be granted is dated 14.12.1983 - the genesis of grant of Special (Duty) Allowance was posting of person in North Eastern Region. The said benefits were extended to attract and retain the services of the competent officers serving in North Eastern Region.
The policy of law as is clear from the original Government Order dated 14.12.1983, it is clear that Government came with the scheme of Special (Duty) Allowance with the object and purpose of encouraging, attracting and retaining the services of the officers in the North Eastern Region. To differentiate the employees in two categories i.e. (i) whose Headquarters are within North Eastern Region and (ii) whose Headquarters are outside the North Eastern Region, clearly indicate that classification is not founded on any intelligible differentia - Further the differentia has no rational relation to the object sought to be achieved. When the purpose is to encourage and retain the personnel in North Eastern Region to deny the benefit of Special (Duty) Allowance to those who although posted and serving in North Eastern Region have their Headquarter outside the North East Region does not have any rational nexus with object sought to be achieved.
The classification as made in the Government Order dated 31.03.1987 does not pass the twin test. The Government having itself realised the error has corrected the same by Government Order dated 03.08.2005 permitted the Special (Duty) Allowance to all who are posted and serving in North East Region irrespective of the facts as whether their Headquarters are within the North Eastern Region or outside the North Eastern Region - When the earlier classification as envisaged by Government Order dated 31.03.1987 itself not been valid to deny the benefit to those who were entitled to the Special (Duty) Allowance on the ground that Government came with the clarification only on 03.08.2005 shall neither be equitable nor shall stand the test of equality before the law.
There are no ground to interfere with the judgment of the High Court. In the result, the appeal is dismissed.
Civil Appeal No. 5850 of 2011
Whether the Respondents were entitled for Special (Duty) Allowances for the period during which they were posted in North Eastern Region from the date of their posting in the North Eastern Region or only with effect from 03.08.2005 when the Office Memorandum was issued by the Government of India which allowed the claim of CPF personnel?
HELD THAT:- The purpose and object of granting the benefit as noticed above was to reward the persons who are posted in the North Eastern Region. The Tribunal has directed for granting the benefit to the Respondents for the period they have actually worked in the North Eastern Region. When the basis for granting Special (Duty) Allowance was posting in North Eastern Region, we fail to see that how the Respondents who were posted in the North Eastern Region would have been denied the Special (Duty) Allowance on the ground that their Headquarters are in Shivpuri/Gwalior. The benefit is attached to their posting in the North Eastern Region and denial on the ground that their Headquarters are in Shivpuri/Gwalior has no nexus with their claim. The Tribunal has allowed that claim which has been affirmed by the High Court.
By Government Order dated 31.03.1987 Special (Duty) Allowance was extended to CRPF personnel posted and serving in North East Region who had their Headquarters also in that region. Obvious inference was that those personnel posted and serving in North East Region whose Headquarters were not in that region were not entitled to the benefit. Whether such classification for extending the benefit to one class of personnel who were both posted and serving there and had their Headquarter there and those personnel who were posted and serving there and having their Headquarter outside the North East Region is valid or not and passes the test of equality before law Under Article 14 is the question also needs to be considered.
When the earlier classification as envisaged by Government Order dated 31.03.1987 itself not been valid to deny the benefit to those who were entitled to the Special (Duty) Allowance on the ground that Government came with the clarification only on 03.08.2005 shall neither be equitable nor shall stand the test of equality before the law - When the denial as noted did not pass the twin test of valid classification and was unconstitutional to deny the said benefit on the premise that Government corrected its error only on 03.08.2005, hence, with effect from 03.08.2005 only the benefit should be given does not appeal to reason.
Appeal dismissed.
-
2018 (7) TMI 2188 - TELANGANA HIGH COURT
Validity of admission of the documents - xerox copies of the documents or original documents of the documents - necessity of notice mandated by Section 66 of the Indian Evidence Act - failure of the respondent to seek permission of the court, for filing documents, at a alter stage of filing the plaint - power under Article 227 of the Constitution of India.
Whether the xerox copies of the documents would amount to secondary evidence? - HELD THAT:- The Court observed that mere allowing the complainant to mark the photostat copy of the document does not mean accepting its contents to be true; the burden is on the complainant to prove the contents of the cheque; it is only after the complainant discharges his evidentiary burden, that the onus shifts to the accused; the accused can establish their defence by various other means which are legally permissible to them; so merely on the apprehension that the accused will lose the opportunity to send the document to FSL, the complainant cannot be restrained from establishing his case by producing the secondary evidence. The Court also considered the cases relied upon by the petitioners therein and distinguished them on facts, while dismissing the criminal petition - it can be understood that the Courts have been permitting admission of xerox copies into evidence, but the nature of the documents and the probative value of the documents and possibilities of tampering the documents have to be taken into consideration, before permitting xerox copies into evidence.
Whether the original documents of the documents, sought to be admitted, are proved as lost? - HELD THAT:- The respondent filed his affidavit and affirms that the documents were lost while the office was being shifted and the case files were being transferred from one team to another - We are also inclined to accept the above approach adopted by this Court and consider the sworn affidavit of the respondent as sufficient to prove the fact of loss of originals.
Whether the notice mandated by Section 66 of the Indian Evidence Act is necessary before admitting the documents? - HELD THAT:- The notice under Section 66 of the Act is necessary when the original is shown to be in possession of the person against whom the document is sought to be proved or is in possession of any person out of reach or not subject to the process of the Court or of any person who is legally bound to produce it. In order to seek dispensation of notice under Section 66 of the Act, the respondent should succeed in proving that the original document is in his own possession and is not in possession of a person against whom it is sought to be proved or is not in possession of any person out of reach or not subject to the process of the Court or any person legally bound to produce it. The documents, sought to be admitted in this case are of different categories - the notice under Section 66 of the Act is required to be given to the party in whose possession the original or the copies of the documents are, for production of such copies.
Whether the failure of the respondent to seek permission of the court, for filing documents, at a alter stage of filing the plaint, would make the petition liable for dismissal? - HELD THAT:- The respondent, by this petition, only seeks permission to adduce secondary evidence of certain documents. Leave required under Order 7 Rule 14 of CPC can, if required, be obtained after the permission to adduce secondary evidence, is accorded. The impugned order, hence, need not be set aside on that count.
Whether the power under Article 227 of the Constitution of India need to be exercised in this case? - HELD THAT:- This revision is under Article 227 of the Constitution of India. The maintainability of this petition is not disputed by both the counsel. But the scope of entertainment of such petition needs to be examined. There is no quarrel that the law is well settled that the power under Article 227 can be exercised only in exceptional cases i.e. to keep the Courts within the bounds of law, but not to merely correct the errors - Section 65 of the Act deals with the proof of the contents of the documents tendered in evidence. In order to enable a party to produce secondary evidence it is necessary for the party to prove existence and execution of the original document.
The xerox copies of the documents, the originals of which are shown to be with the respondent and which are shown to have been lost, can be received in evidence. Both the parties agree upon the documents at Sl. Nos. 1, 3, 5 and 8 to 12, to be the documents, the originals of which would be with the respondent. Hence, the order of the Court below to the extent of admitting those documents can be sustained - the said documents cannot be permitted to be taken in evidence without following the procedure prescribed under Section 65(a) of the Act. The documents at Sl. Nos. 20 and 32 are the tables prepared by the petitioner and the same cannot be considered as documents also. Hence, they cannot be admitted in evidence.
The civil revision petition is allowed in part.
-
2018 (7) TMI 2186 - JHARKHAND HIGH COURT
Preparation of District Survey Report (Stone) - implementation of Mining Surveillance System for minor minerals in the State - HELD THAT:- The affidavit of the Chief Inspector of Factories dated 3 rd July 2018 indicates that different Labour Laws such as Factories Act, Minimum Wages Act, Payment of Wages Act, Industrial Dispute Act, etc. are being enforced by the Department; total number of stone crushers registered as on 15th May 2018 is 559; number of industries allocated for online individual inspection is 117; number of industries allocated for joint inspection is 10; total number of industries for online inspection allocation from 1st April 2017 to 31st March 2018 is 127 and 43. Inspection reports have been uploaded as per the report of JAP IT. Total number of prosecution filed against Stone Crushers Factory management is 9. The Department of Labour has enclosed inspection reports which are of May 2017 and other similar dates. It is also required to indicate the follow up taken on the basis of those inspections and further inspection if carried out till date.
It is expected that the Department of Mines and Geology in particular to come out with concrete ideas and proposals to make the District Task Force more effective by the next date - The matter be, therefore, posted for 16th August, 2018.
-
2018 (7) TMI 2176 - SUPREME COURT
Registration of the mark 'NANDHINI' in respect of the goods in which it is dealt with(milk and milk products) - infringement of rights of the Respondent or not? - similar trade mark in respect of different goods and different time periods involved - deception and confusion in the minds of the users that the goods in which the Appellant is trading, in fact, are the goods which belong to the Respondent - entire case of the Respondent revolves around the submissions that the adaptation of this trade mark by the Appellant, which is phonetically similar to that of the Respondent, is not a bona fide adaptation and this clever device is adopted to catch upon the goodwill which has been generated by the Respondent in respect of trade mark 'NANDINI'.
HELD THAT:- The reasoning of the High Court that the goods belonging to the Appellant and the Respondent (though the nature of goods is different) belong to same class and, therefore, it would be impermissible for the Appellant to have the registration of the concerned trade mark in its favour, would be meaningless. That apart, there is no such principle of law.
We are not persuaded to hold, on the facts of this case, that the Appellant has adopted the trade mark to take unfair advantage of the trade mark of the Respondent. We also hold that use of 'NANDHINI' by Appellant in respect of its different goods would not be detrimental to the purported distinctive character or repute of the trade mark of the Respondent. It is to be kept in mind that the Appellant had adopted the trade mark in respect of items sold in its restaurants way back in the year 1989 which was soon after the Respondent had started using the trade mark 'NANDINI'. There is no document or material produced by the Respondent to show that by the year 1989 the Respondent had acquired distinctiveness in respect of this trade mark, i.e., within four years of the adoption thereof. It, therefore, appears to be a case of concurrent user of trade mark by the Appellant.
The orders of the IPAB and High Court are set aside - These appeals are allowed and the order of the Deputy Registrar granting registration in favour of the Appellant is hereby restored, subject to the modification that registration will not be given in respect of those milk and milk products for which the Appellant has abandoned its claim.
-
2018 (7) TMI 2156 - SUPREME COURT
Validity of repeated imposition of police order Under Section 144 of Code of Criminal Procedure - Ban imposed by the Assistant Commissioner of Police, Sub-Division, Parliament Street, New Delhi District prohibiting various activities without written permission in the areas known as Parliament House, North and South Block, Central Vista Lawns together with its surrounding localities and areas - It is the grievance of the Petitioner that though a particular order passed Under Section 144 of the Code of Criminal Procedure remains in force for a period of 60 days, simultaneously on the expiry of the said period of 60 days another order of identical nature is passed thereby banning the holding of public meetings, peaceful assembly and peaceful demonstrations by the public at large.
HELD THAT:- The right to protest is recognised as a fundamental right under the Constitution. This right is crucial in a democracy which rests on participation of an informed citizenry in governance. This right is also crucial since it strengthens representative democracy by enabling direct participation in public affairs where individuals and groups are able to express dissent and grievances, expose the flaws in governance and demand accountability from State authorities as well a powerful entities. This right is crucial in a vibrant democracy like India but more so in the Indian context to aid in the assertion of the rights of the marginalised and poorly represented minorities.
It can be deciphered from the provisions of Articles 19(2) and (3) that exercise of right to speech conferred in Clause (a) and right to assemble peaceably and without arms in Clause (b) is made subject to reasonable restrictions which can be imposed, inter alia, in the interests of sovereignty and integrity of India or public order. This legal position is also accepted by all the parties.
Whether total ban of demonstrations etc. at Jantar Mantar road amounts to violation of the rights of the protestors of the Constitution or this would amount to a reasonable restriction in the interest of 'public order'? - HELD THAT:- There would be also an incidental and interrelated issue, namely, whether the manner in which the demonstrations etc. are held at Jantar Mantar, they violate the fundamental right of the residents guaranteed Under Article 21 of the Constitution. If the answer is in the affirmative, it would raise another issue, namely, balancing of the two rights. The right of the protestors Under Article 19(1)(a) and 19(1)(b) of the Constitution and the rights of the residents Under Article 21 of the Constitution, as both the rights are fundamental rights.
Thus, it would be pertinent to point out that there may be situations where conflict may arise between two fundamental rights. Situation can be conflict on inter fundamental rights, intra fundamental rights and, in certain peculiar circumstances, in respect of some person one fundamental right enjoyed by him may come in conflict with the other fundamental right guaranteed to him. In all such situations, the Court has to examine as to where lies the larger public interest while balancing the two conflicting rights. It is the paramount collective interest which would ultimately prevail.
Undoubtedly, right of people to hold peaceful protests and demonstrations etc. is a fundamental right guaranteed Under Articles 19(1)(a) and 19(1)(b) of the Constitution. The question is as to whether disturbances etc. caused by it to the residents, as mentioned in detail by the NGT, is a larger public interest which outweighs the rights of protestors to hold demonstrations at Jantar Mantar road and, therefore, amounts to reasonable restriction in curbing such demonstrations. Here, we agree with the detailed reasoning given by the NGT that holding of demonstrations in the way it has been happening is causing serious discomfort and harassment to the residents - the pathetic conditions which were caused as a result of the processions, demonstrations and agitations etc. at the Jantar Mantar were primarily because of the reason that authorities did not take necessary measures to regulate the same. Had adequate and sufficient steps were taken by the authorities to ensure that such dharnas and demonstrations are held within their bounds, it would have balanced the rights of protestors as well as the residents.
In the first instance, what needs to be noted is that a portion of Ramlila Maidan has been earmarked for such demonstrations etc. Therefore, that space is already available. One of the argument raised by the Petitioner in the writ petition and Appellants in the appeal is that Ramlila Maidan is far away from that portion of New Delhi area where there is a concentration of 'power' and, therefore, holding protests and demonstration at a far place in Ramlila Maidan would have no impact or very little effect. It was stressed that the purpose of holding such demonstrations and raising slogans is that they reach concerned persons for whom these are meant. This may be correct. However, it is also to be borne in mind that we are living in an era of technology where a concerned voice by a group of persons can reach the right quarters by numerous means. Electronic and print media play a pivotal role. Then, we have social media and various applications like 'WatsApp', 'Twitter', 'Instagram' etc. which take no time in spreading such events. Secondly, though holding protests and demonstrations is an accepted right, at the same time, nobody can claim that I have a right to hold demonstration at one particular area only. While regulating such demonstrations in public interest, particular areas can be earmarked. On the other hand, it is also to be acknowledged that Ramlila Maidan may not be sufficient to cater to this requirement. Again, this place in old Delhi is a part of very congested area and it has its own limitations when it comes to using this area for such purposes.
The Commissioner of Police, New Delhi in consultation with other concerned agencies, is directed to devise a proper mechanism for limited use of the area for such purposes but to ensure that demonstrations, etc. are regulated in such a manner that these do not cause any disturbance to the residents of Jantar Mantar road or the offices situated there - The Petitioner has successfully demonstrated that it is their fundamental right Under Articles 19(1)(a) and 19(1)(b) of the Constitution. At the same time, it is also not denied that there can be reasonable restrictions on exercise of this right in larger public interest. The Respondents have also highlighted in equal measure the sensitivity of this area because of its proximity to the Parliament House, North and South Blocks and other Central Government offices, including frequent visits of Heads of foreign States and other such factors. The Respondents are also justified in pointing out that alarmingly large number of requests for holding demonstrations at this place are made. Further, intelligence reports reveal that some of such demonstrations, if allowed, may cause serious law and order situation.
The orders issued Under Section 144 prohibit certain activities in the nature of demonstrations etc. 'without permission', meaning thereby permission can be granted in certain cases. There can, therefore, be proper guidelines laying down the parameters under which permission can be granted in the Boat Club area. It can be a very restrictive and limited use, because of the sensitivities pointed out by the Respondents and also keeping in mind that Ramlila Maidan is available and Jantar Mantar Road in a regulated manner shall be available as well, in a couple of months. Thus, the proposed guidelines may include the provisions for regulating the numbers of persons intending to participate in such demonstrations, prescribing the minimum distance from the Parliament House, North and South Blocks, Supreme Court, residences of dignitaries etc. within which no such demonstrations would be allowed.
The Commissioner of Police, New Delhi, directed to undertake this exercise, in consultation with other authorities, within two months from today - petition disposed off.
-
2018 (7) TMI 2153 - SUPREME COURT
Withdrawal of the Essentiality Certificate issued to the petitioner college by Respondent No. 1 under Section 10A of the IMC Act read with the Establishment of Medical College Regulations, 1999 - whether the State Government has the power to withdraw an Essentiality Certificate once granted, and whether the power to do so is ultra-vires the Act and the Regulations framed thereunder?
HELD THAT:- The concerned State Government is required to certify that it has decided to issue an Essentiality Certificate for the establishment of a Medical College with a specified number of seats in public interest, and further that such establishment is feasible. Importantly, the State Government is required to certify that if the applicant fails to create an infrastructure for the Medical College as per the MCI norms and fresh admissions are stopped by the Central Government, the State Government shall take over the responsibility of those seats that already admitted in the College with the permission of the Central Government. An amendment to the notification also requires a declaration that the applicant owns and possesses adequate land on which non-agricultural use of the land is permitted and on which a Medical College can be established. It further requires a declaration to the effect that the Hospital and Medical College have been granted completion certificate / building use certificate - Essentiality Certificate thus certifies that it is essential having regard to specified factors that the opening of the proposed college is essential in the State, in public interest. Further, that the applicant has the necessary land and building for running it. What is significant to note is that the law requires that an applicant must possess an Essentiality Certificate from the State Government mentioning therein that it is essential to have a Medical College as proposed by him. The purpose is interalia to prevent the establishment of a college where none is required or to prevent unhealthy competition between too many Medical Colleges.
The question of justified existence of a college and the irregular/illegal functioning of an existing college belong to a different order of things and cannot be mixed up. A certificate constitutes a solemn statement by an authority certifying certain conditions of things. Persons acting on such certificates are entitled to assume that the certificate will ensure and not be pulled out from under their feet for extraneous reasons - none of the reasons for withdrawing the Essentiality Certificate pertain to factors which are certified as true in the prescribed Form 2.
The function of the State Government in granting an Essentiality Certificate must be construed as a quasi judicial function. The Government is required to, while issuing the certificate in Form 2, to determine the justification and feasibility of opening the proposed college in the State. Towards this purpose, it is bound to enquire and determine the existence of several factors such as the number of existing institutions, the number of doctors becoming qualified annually, the number of doctors registered with the State Medical Council and employed in Government Service, registered with employment exchange etc. - The issuance of certificate must therefore be construed to be a quasi judicial act. The upshot is that such an act is not liable to be construed as an “order” contemplated by Section 21 of the General Clauses Act. Not being an order, and certainly not being a notification, rule or bye-law, Section 21 has no application whatsoever.
Condition No.(XI) is ultra- vires the provisions of the IMC Act and Regulations. In the result, the order dated 01.11.2017, issued by Respondent No. 1- State of Punjab, withdrawing the Essentiality Certificate is quashed and set aside and Condition Nos.(VII) and (XI) are declared illegal.
Petition allowed.
-
2018 (7) TMI 2145 - KARNATAKA HIGH COURT
Dishonor of cheque - existence of legally enforceable debt or not - Section 138 of NI Act - HELD THAT:- In order to attract Section 138 of the Negotiable Instruments Act, the ingredients of Section 138 have to be established primarily by the complainant by pleading in the complaint with regard to the existence of any legally recoverable debt or liability on the part of the accused. Even a semblance of doubt is raised with regard to the existence or non existence of legally recoverable debt, then also it should be established during the course of trial by means of pleading the facts and leading evidence. It is the defence taken up by the accused that there was no legally enforceable debt, and further that, it is not only the defence, but also the court has to examine whether on complete reading of the complaint itself whether any offence u/s.138 of the Negotiable Instruments Act is constituted or not. It is a very well recognized principle of criminal jurisprudence that, if on plain and meaningful reading of the complaint or the FIR, the allegations made in the complaint or in the FIR do not constitute any offence or under any penal law for the time being in force, the continuation of such prosecution amounts to abuse of process of law. Therefore, the court has to examine without reference to the defence of the accused on the basis of the complaint itself whether there existed ingredients of Section 138 of the Negotiable Instruments Act.
It is clear from the complaint averments that it is the case of the complainant that, the complainant has a son by name B. Sharath, the accused and complainant were known to each other since long. The complainant met the accused and in fact the accused had assured to provide a job to his son in HAL factory. In this context, the accused had requested the complainant to pay an amount of ₹ 10 lakhs and he demanded the same for the purpose of providing a job to the son of the complainant. In this context, it is stated that, on various occasions, the complainant has paid some amounts to him. As the accused could not get the job to the son of the complainant, the complainant approached the accused. Then the accused again demanded for further amount for making payment to the Officers. As per the demand, the complainant paid amount to him. In total, lot of amount has been paid to the accused for the purpose of securing job to the son of the complainant. As the accused was not able to secure the job in HAL to the complainant's son, the complainant demanded for repayment of the money. In that context, it is said that on 1.5.2009, the accused issued a cheque bearing No.262871 for a sum of ₹ 10 lakhs and on presentation of the said cheque it came to be dishonoured on the ground of 'funds insufficient'. After complying the other provisions of Section 138 of the Negotiable Instruments, it appears the complaint came to be lodged - It is seen that, there are absolutely no allegations whatsoever that the accused has taken this money as a loan or a debt or as a liability at any point of time. It is clear cut case of the complainant that, he has paid money for the purpose of securing job for his son, even without examining whether the accused has got any authority to provide job to his son or not and what is the procedure that is required to be followed by the HAL factory for the purpose of selecting any candidate for the purpose of providing any job. Therefore, without examining anything, the complainant himself has entered into a void contract with the accused and paid money as against the public policy for illegal purpose.
Section 138 of the Negotiable Instruments Act mandates that, there should be an existence of legally recoverable debt and in order to attract Section 138 of the Negotiable Instruments Act, the party has to plead with regard to the existence of legally recoverable debt. If he pleads with regard to the existence of the legally recoverable debt u/s.138 of the Act, then only presumption u/s.139 of the Act can be raised in favour of the complainant - even considering the provisions of Section 139 of the Negotiable Instruments Act, there is no question of accused rebutting the presumption unless the presumption is raised in favour of the complainant. If the court for any reason comes to the conclusion that the ingredients of Section 138 of the Negotiable Instruments Act, are not made out, the court cannot take cognizance of such matter, and for the purpose of calling the accused to appear before the court and contest the proceedings.
The learned Magistrate in fact at the time of taking cognizance of the private complaint has to examine meticulously the contents of the complaint. It is more than several times made clear that when ever a complaint is filed, the learned Magistrate has to look into the complaint, he should not mechanically take cognizance or refer the matter to the police for investigation. The learned Magistrate has to look into the complaint averments for the purpose of ascertaining whether the court has got jurisdiction to try that matter. Secondly, the contents of the complaint even meaningfully understood allegations made therein constitute any offence. Only for those offences, where the allegations constitute offence the Magistrate is entitled to take cognizance and proceed with the matter.
Petition allowed.
-
2018 (7) TMI 2127 - KERALA HIGH COURT
Unexplained cash - police seized cash from one Selvaraj on the basis of which the police registered Crime - petitioner, who claimed to be the employer of Selvaraj, filed an application under section 451 Cr.P.C. By the impugned order the learned Magistrate dismissed it - HELD THAT:- Department reported to the Magistrate that though notices was issued to Selvaraj from whom the cash was seized, he did not respond to it. This was the reason for the Magistrate's dismissing the application. I think the decision is correct. But the learned counsel submits that the Magistrate may be directed to reconsider the matter on merits after hearing the petitioner and the Income Tax Department and the Directorate of Enforcement. I think the request is reasonable.
In the result this Crl.M.C is allowed. The impugned order is set aside. The petitioner is directed to implead the Income Tax Department and Directorate of Enforcement in the application filed under section 451 Cr.P.C. Thereafter, the learned Magistrate shall issue a notice to them and after hearing all the parties dispose of the matter in accordance with the law.
-
2018 (7) TMI 2116 - CHATTISGARH HIGH COURT
Issuance of non-bailable warrant - offence punishable under Sections 120B, 420, 467 and 468 of the IPC - HELD THAT:- Bearing in mind the statutory provision contained in sub-section (2) of Section 319 of the CrPC and judged by the principles of law laid down by Their Lordships of the Supreme Court in STATE OF U.P. VERSUS POOSU AND ANOTHER [1976 (4) TMI 223 - SUPREME COURT], it would appear that power and jurisdiction of trial court to issue appropriate warrant of arrest has to be exercised judiciously and sparingly with utmost circumspection striking a proper balance between the personal liberty guaranteed under Article 21 of the Constitution of India and societal interest and in order to secure attendance of the person accused, the court should first issue summon simplicitor or bailable warrant to accused and only thereafter, if he does not appear after service, as a last resort, non-bailable warrant of arrest should be issued to secure the presence of the accused person.
In the instant case, the fact remains that summon and bailable warrant issued to the applicant remained unserved and thereafter, straightway, non-bailable warrant could not have been issued to the applicant in light of the principles of law enunciated by the Supreme Court in the aforesaid decisions - it is a fit case in which the applicant should be granted anticipatory bail.
Bail application allowed.
-
2018 (7) TMI 2114 - PUNJAB AND HARYANA HIGH COURT
Arbitral Award - existence of arbitration clause - tripartite agreement - contention is that no agreement having been signed by M/s IPROSUGAR Engineering Pvt. Ltd., with M/s Spray Engineering Devices Limited, to that effect, there is no arbitration clause existing - HELD THAT:- Though undoubtedly a tripartite agreement is also shown to be in existence (copy Annexure P-4 referred to herein above), between three parties, including M/s IPROSUGAR Engineering Private Limited, that is an agreement with regard to the amount required to be paid by M/s Spray Engineering Devices Limited to M/s IPROSUGAR Engineering Private Limited, which does not override the agreement dated June 14, 2006 - once the agreement dated 14.06.2006 itself is the basis for the claim made in the suits filed by M/s IPROSUGAR Engineering Private Limited, it cannot approbate and reprobate to get out of the arbitration clause in the said agreement as regards any dispute arising with even the subsequently created joint venture company, i.e. M/s IPROSUGAR Engineering Private Limited, which is admittedly a company incorporated pursuant to the said agreement.
As regards Section 7 of the Arbitration and Conciliation Act, 1996, obviously there is no dispute with what is stipulated therein, but in the opinion of this Court, in view of what has been observed herein above, M/s IPROSUGAR Engineering Private Limited would still be bound by the agreement as an agreement between the parties, once the reliance by the said company, in respect of the relief claimed by it in the civil suits filed by it, is in terms of that very agreement dated 14.06.2006.
Petition dismissed.
-
2018 (7) TMI 2103 - DELHI HIGH COURT
Partition of suit property - owner of first and second floor with terrace rights of the suit property - entitlement to partition and declaration sought or not - suit barred by law or not.
Whether the plaintiff is the owner of first and second floor with terrace rights of the suit property bearing number F-10, East of Kailash, New Delhi? - HELD THAT:- Though Shanti Swaroop, who was defendant No.1 in CS(OS) No.3/1992 has died and has been substituted by Madhu and Anil, but Satish, even after the demise of Shanti Swaroop, has not claimed partition of the said property as an heir of Shanti Swaroop. Thus, the need to put CS(OS) No.3/1992 to trial, for partition of the property amongst Satish, Anil, Sunil and Madhu as heirs of Shanti Swaroop, who admittedly was the sole owner of the property, is not felt.
What perhaps prevailed, while reserving order was, if it were to be held that ISKCON, under the document, is not entitled to the entire property, it is not entitled to seek Letters of Administration. However, it was lost sight of that even if ISKCON were to be not entitled to the entire property, it is in any case entitled to 20% share in the sale proceeds of the property and since none of the other beneficiaries under the document have sought Letters of Administration, ISKCON, even as one of the beneficiaries, is entitled to apply therefor.
I would however implore the counsel for ISKCON to consider, whether in view of aforesaid aspects, a proceeding seeking Letters of Administration is the most appropriate proceeding for adjudication thereof or some other expeditious proceeding, where adjudication of all such aspects can be made, is to be initiated, so that valuable time is saved. Even if the document is proved to be the Will of Shanti Swaroop, another proceeding should not be required to determine the aforesaid aspects.
Application dismissed.
-
2018 (7) TMI 2086 - RAJASTHAN HIGH COURT
Service of notice - HELD THAT:- Mr.Manish Patel, AGC is directed to accept notice on behalf of the respondents, which he accepts. He seeks some time to complete his instructions.
List tomorrow i.e. 17.7.2018.
-
2018 (7) TMI 2079 - PUNJAB AND HARYANA HIGH COURT
Rejection of Application for examination of handwriting expert - petitioner submitted that reasoning assigned for the purpose of entertaining the petitioners application for examination of handwriting expert stated in para 3 is arbitrary and illegal - whether petitioner can seek necessary relief in respect of examining handwriting expert in the present case or not? - HELD THAT:- Section 243(2) is clear that a Magistrate holding an inquiry under CrPC in respect of an offence triable by him does not exceed his powers under Section 243(2) if, in the interest of justice, he directs to send the document for enabling the same to be compared by a 2 of 4 handwriting expert because even in adopting this course, the purpose is to enable the Magistrate to compare the disputed signature or writing with the admitted writing or signature of the accused and to reach his own conclusion with the assistance of the expert. The appellant is entitled to rebut the case of the respondent and if the document viz. the cheque on which the respondent has relied upon for initiating criminal proceedings against the appellant would furnish good material for rebutting that case, the Magistrate having declined to send the document for the examination and opinion of the handwriting expert has deprived the appellant of an opportunity of rebutting it.
The appellant cannot be convicted without an opportunity being given to her to present her evidence and if it is denied to her, there is no fair trial. "Fair trial" includes fair and proper opportunities allowed by law to prove her innocence. Adducing evidence in support of the defence is a valuable right. Denial of that right means denial of fair trial. It is essential that rules of procedure designed to ensure justice should be scrupulously followed, and the courts should be jealous in seeing that there is no breach of them.
The impugned judgment cannot be sustained - petition allowed.
-
2018 (7) TMI 2078 - DELHI HIGH COURT
Principles of Natural Justice - Blacklist and barred from participating in any transaction with Delhi Prisons Department - case of petitioner is that the impugned order has been passed without issuing any SCN to the petitioner, the petitioner was not afforded any opportunity of being heard; and also that the punitive measure imposed on the petitioner is impermissible inasmuch the petitioner has blacklisted the petitioner for all times to come - HELD THAT:- There is good ground to hold that a party cannot be blacklisted for all times to come. There may also be instances where the person to be blacklisted is able to persuade the concerned authority that the default on his part is not intentional and has been caused due to reasons beyond his control. Clearly, in a situation where the respondent is convinced of the bonafides of such person, a punitive measure may not be warranted. Mr Singh fairly states that the matter would be considered by the concerned authority afresh in the aforesaid light.
Impugned order set aside - The respondents shall issue a notice of hearing to the petitioner (without setting out allegations or providing any further material). It will be open for the petitioner to make his submissions before the concerned authorities. The concerned authorities shall, thereafter, pass a speaking order within a period of twelve weeks from today - application disposed off.
-
2018 (7) TMI 2056 - PATNA HIGH COURT
Refund of License fee - refund of proportionate amount of license fee calculated at the rate of Re. 1.00 L.P. Litre on the Minimum Guarantee Quantity (MGQ) of country liquor - unlawful closure of its/their manufacturing and bottling plant - HELD THAT:- One thing is admitted that prior to sealing of the premises on various occasions the license of the petitioner was neither suspended nor cancelled by the authorities of the Excise Department, on one occasion when the Excise Commissioner passed an order dated 20.01.2016 (Annexure-11) suspending the license of the petitioner for a period of 90 days which was beyond the actual period of license of the petitioner, the Board of Revenue was pleased to grant interim stay of the order dated 20.01.2016 and it was directed that the petitioner shall be permitted to operate its licensed premises.
Considering the pleadings available on the record, we find that in the case of M/s Welcome Distilleries also the premises of the petitioner was sealed on different occasions as stated in the writ application without affording the petitioner a reasonable opportunity to show cause. There is no denial of the statement of the petitioner that the order of suspension was passed without show cause notice to the petitioner by the Excise Commissioner and that the Excise Commissioner was not competent in law to pass such order of suspension.
The prayer made by the petitioner to hold and declare that the repeated sealing and closure of the licensed premises of the petitioner for a total period of 95 days is wholly without any authority in law, and therefore has no liability for payment of the differential amount and license fee for the period of unlawful and illegal closure is fit to succeed and be allowed.
The Principal Secretary, Registration, Excise and Prohibition Department, Government of Bihar and the Excise Commissioner, Government of Bihar, are directed to consider the quantum of the license fee and the excess differential amount recovered from the petitioner(s) in all these cases for the period their premises remained unlawfully sealed/closed and refund the entire excess amount to the petitioner(s) within a period of three months from the date of receipt/production of a copy of this orders.
Application disposed off.
-
2018 (7) TMI 2055 - MADRAS HIGH COURT
Assignment Agreement - benefit of the holders of the secured receipts issued by the trustee - Section 3 of the Securitisation and Assets Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 - petitioner claims that by virtue of Section 5(4) of the SARFAESI Act, the petitioner company is entitled to continue, prosecute and enforce all the applications, appeals and legal proceedings of whatsoever nature, which are pending on the date of Deed of Assignment with regard to 6th respondent - HELD THAT:- Sub clause (1) allows any securitisation company or reconstruction company to acquire the financial assets of any bank or financial institution by issue of debentures or bonds or any other security in the nature of debenture for consideration agreed upon between the said companies and the bank or financial institution incorporating therein such terms and conditions as may be agreed upon between them. This is more like delegating the power of the banks to recover from the debtors by securitisation company or acquisition company.
However, there is no explicit power given to such delegated securitisation company or asset recovery company to further assign the same to another company or enter upon Assignment Agreement with another company to recover the secured debts of the bank.
The petitioner company cannot blow hot and cold, on the one hand, by entering into an Assignment Agreement with the third party and on the other hand, when the said agreement did not fructify, now reverting back to the original position and trying to step into the shoes of the 15th and 16th respondents and the same cannot be permitted.
There are no merit in the Writ Petition - petition dismissed.
-
2018 (7) TMI 2049 - SUPREME COURT
Conviction u/s 302 and 324 of the Indian Penal Code - appellant was of unsound mind or not - HELD THAT:- The appellant has been able to create sufficient doubt in our mind that he is entitled to the benefit of the exception under section 84 I.P.C. because of the preponderance of his medical condition at the time of occurrence, as revealed from the materials and evidence on record. The prosecution cannot be said to have established its case beyond all reasonable doubt. The appellant is therefore entitled to the benefit of doubt and consequent acquittal. The appeal is allowed. He is directed to be released from custody unless wanted in any other case.
It is considered necessary to give further directions under Section 335 or 339 of the Criminal Procedure Code, as the case may be, so that the appellant is not exposed to vagaries and receives proper care and support befitting his right to life under Article 21 of the Constitution of India.
-
2018 (7) TMI 2025 - SUPREME COURT
Determination of tariff chargeable by the Damodar Valley Corporation from the consumers of electricity generated and transmitted by the Corporation - grant of transitory period - Section 61 and 62 of the Electricity Act, 2003 - HELD THAT:- While it is correct that the classes of consumers served by the Corporation are HT-Industrial consumers like Steel, Coal, Railways, etc. beside bulk supply to main beneficiaries of State Electricity Boards of West Bengal and Jharkhand, the said fact, itself, is another peculiar feature which distinguishes the Corporation from other licenses. If in a situation where the Corporation in addition to generation, transmission and distribution of electricity is statutorily required to undertake certain social security/beneficial measures like flood control, control of soil erosion, afforestation, navigation, promotion of public health, etc. we do not see how the grant of transitory period can be faulted with. We, therefore, decline to interfere with the aforesaid part of the order of the learned Appellate Tribunal.
The learned Appellate Tribunal has also taken the view that having regard to the provisions of Section 79 of the 2003 Act it is the CERC which would be the “Appropriate Commission” for determination of tariff inasmuch as the Damodar Valley Corporation is a Corporation owned and controlled by the Central Government. The detailed inputs to arrive at the aforesaid conclusion have been duly considered by us - On such consideration, we are of the view that the above conclusion recorded by the learned Appellate Tribunal is neither unreasonable nor irrelevant so as to warrant our interference, particularly, in exercise of the limited jurisdiction Under Section 125 of the 2003 Act.
Appeal dismissed.
|
