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Indian Laws - Case Laws
Showing 61 to 69 of 69 Records
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2018 (7) TMI 924 - SUPREME COURT
There is no ground to interfere with the order framing charge - the trial court is directed to proceed with the matter pending before it.
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2018 (7) TMI 923 - THE APPELLATE AUTHORITY - ICAI
Punishment of removal of the name of the Appellant - imposition of monetary penalty - Appellant was held guilty under Clauses (7) and (8) of Part-I of the Second Schedule to the Act - section 21B(3) of the Chartered Accountants Act, 1949 - casual approach of the Appellant, neither producing the complete working papers nor producing Shri E. Mathan as his witness.
Held that:- The working papers are very general and sketchy and do not contain the required information as mandated by the Auditing Standards i.e., AAS–3. In many cases even the year for which audit is done, name of person in-charge who carried out the examination and the details of his observations are not mentioned. Further, how the observations were satisfied is also not mentioned. When we asked about the Audit programme, even no proper audit programme was found in the working papers.
We drew the attention of the Appellant towards the complaint that the financial statements certified by him were found to be fraudulent later on and huge losses were suffered by financial institutions/NBFC, therefore, there is more need on his part to establish that he carried out his duties diligently as per the Auditing Standards in vogue at that time. However, no convincing reply was given by the Appellant thereto.
Based on the facts involved in both these Appeals in addition to pursuing all records and evidence besides hearing of the arguments of the parties, we are of the considered view that the Appellant undoubtedly has failed to prove that he had obtained all the information which was necessary for expressing the opinion and had exercised due diligence in the performance of his professional duties. Accordingly, we find no merit in both these Appeals and thus, both the Appeals are hereby dismissed.
We find no reason to interfere with the punishment awarded by the Disciplinary Committee of the Institute of Chartered Accountants of India to the Appellant.
Appeal dismissed.
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2018 (7) TMI 706 - DELHI HIGH COURT
Dishonor of cheque due to insufficiency of funds - Non-payment of part of amount related to purchase of property - liability towards electricity dues as on the date of the sale deed - appellant claims to have issuued two cheques subsequently for discharge of his liability but the respondent denies of the same - Section 138 of the Negotiable Instrument Act.
Liability towards electricity dues as on the date of the sale deed - Held that:- It is absolutely clear that the respondent has merely raised a bogie of there being some outstanding electricity dues from the time when Gulzar Singh occupied the property in question. There is absolutely no basis for the same. It is not the case of the respondent that the electricity supply company i.e., BSES Yamuna Power Ltd. has raised any demand in respect of the electricity meters installed in his premises, ever since he came in occupation of the same.
It is evident that the cheque of ₹ 5,00,000/- was issued by the respondent towards the balance sale consideration. May be, the same was left with Surender Kumar, till such time as the appellant satisfies the respondent with regard to the apprehended outstanding electricity bills, whereafter, the balance payment of ₹ 5,00,000/- was to be handed over to the appellant. Only this arrangement explains issuance of the said cheque of ₹ 5,00,000/- by the respondent and its being handed over to a third party, namely, Surender Kumar – as claimed by the respondent.
The appellant has proved beyond all reasonable doubt that the cheque in question was issued by the accused in discharge of a legally recoverable debt. It has also proved that the said cheque has been dishonoured upon presentation and, despite issuance of statutory notice of demand within the period of limitation, the amount has not been paid by the accused. The defence set up by the accused has not been probablised and he has not been able to create any doubt in the mind of the Court that the said cheque was not issued towards discharge of a legally recoverable debt. The respondent accused has not been able to rebut the presumption arising in favour of the appellant holder of the cheque.
The respondent accused is held guilty for commission of the offence under Section 138 of the Negotiable Instruments Act - appeal allowed - decided in favor of appellant.
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2018 (7) TMI 630 - MADRAS HIGH COURT
Dishonor of Cheque - Section 138 of the Negotiable Instruments Act - Held that:- There have been animosity between the petitioners and the respondent. In such circumstances, mala fides of the respondent has to be looked into. It is apparent that as a counter blast for the proceedings initiated by the petitioners this case has been initiated by the respondent. Hence, necessary ingredients of the offence of cheating or criminal breach of trust have not been made out, on the other hand attendant circumstances indicate that the complaint has been made with an ulterior motive to wreck vengeance in view to spite for the 138 cases initiated by the petitioners against the respondent.
The proceedings were initiated as a counter blast to the proceedings initiated by the petitioners. Continuance of such proceedings will be nothing but an abuse of process of law.
Petition allowed - decided in favor of appellant.
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2018 (7) TMI 629 - MADRAS HIGH COURT
Subject matter of cheque issue in dispute - Dishonor of Cheque - insufficiency of funds - it was claimed that the cheque was given as a security to the complainant as a security for the chit transaction - cheque issued for discharge of debt or not? - Section 138 of the Negotiable Instruments Act.
Held that:- There was no way the accused and her husband while bringing the promissory note would have known that one Jagadish will be the witness in the promissory note and therefore the version of the complainant that the promissory note was brought typed by the accused and her husband is not believable. This only substantiates the case of the defense that the promissory note was a blank promissory note that was available with the complainant towards the earlier chit transaction and this promissory note has been typed and used for the purpose of this case. If really the version of the complainant is true, the best evidence that was available for the complainant was to examine Jagadish who is none other than a person who is working in his own office - It must also be noted that it is during this period of time, the chit transaction was going on between the complainant and the husband of the accused. Out of these two cheques, one cheque bearing No.88032 is the subject matter of the present case. The version of the defense that the subject matter cheque was given as a security to the complainant as a security for the chit transaction has been established by preponderance of probabilities.
After the burden of proof was rebutted by the accused, the complainant must have at least examined Jagadish who according to him was the person who was present at the time when the loan was given by the complainant to the accused and her husband. However for reasons best to known to the complainant this was not done.
The Appellate Court after discussing the entire evidence that was available on record has rightly come to the conclusion that the complainant failed to prove the fact that the subject matter cheque was issued towards a discharge of debt said to have been taken by the accused and her husband.
Appeal dismissed.
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2018 (7) TMI 628 - MADRAS HIGH COURT
Non-payment of borrowed money - dishonor of cheque issued for repayment - Instead of paying the amount, respondent has sent a reply notice dated 12.10.2002 with false averments - section 138 of N.I. Act - Whether the learned Additional Sessions Judge (Fast Track Court No.II) Tiruchirapalli was right in setting aside the Judgment of the trial court? - Whether this appeal has to be allowed?
Held that:- The accused has not disputed the fact that Ex.P2/cheque is his cheque. He has also not disputed that the signature found in the said cheque is his signature. However, he denied the allegation that he borrowed the amount from the complainant on 02.12.2001 and in order to discharge the said debt, he issued Ex.P2 cheque. According to him, he does not know the complainant. He only knows PW1 as she conducted a chit in which his mother was a subscriber.
The complainant has stated in Ex.P1 (power of attorney that he is not able to personally be present and perform various acts and deeds and hence he executed the power of attorney in favour of PW1. The accused has not disputed the genuineness of Ex.P1. Further, the evidence of the PW1 would show that she had personal knowledge about the transaction which took place between her father (complainant) and the accused. Hence no adverse inference can be drawn against the complainant for his non-examination as witness.
The findings of the learned Judicial Magistrate No.IV, Tiruchirapalli in C.C.No.460 of 2002 dated 17.05.2006, that the accused has committed an offence u/s.138 of the Negotiable Instruments Act is restored - In so far as the sentence awarded by the trial court is modified as six months Rigorous Imprisonment and fine of ₹ 5,000/-, in default, three months Rigorous Imprisonment is awarded.
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2018 (7) TMI 443 - HIMACHAL PRADESH HIGH COURT
Suit for recovery of loan amount - Dishonor of Cheque due to insufficiency of funds - repayment of money lent by the applicant to his neighbor - Section 138 of the NI Act - the complaint filed by the present appellant under Section 138 of the NI Act was dismissed by the learned trial Court on the ground that as on the date when the cheque in issue i.e. cheque which was dishonoured by the bank concerned, was issued by the accused in favour of the complainant, there was no legally enforceable debt.
Held that:- In the present case, undoubtedly the alleged loan was lent to the accused on 31.08.1999 but it is a matter of record that in lieu of discharge of the said debt, accused had handed over a cheque to the complainant on 28.02.2006. In fact, in my considered view, when in lieu of the loan which was so advanced by the complainant to the accused in the year 1999, as cheque was issued by the accused to the complainant in the year 2006, the same amounted to the accused having acknowledged the said debt and in fact, a fresh cause of action accrued from that particular date in favour of the complainant to recover the said amount from the accused - This very important aspect of the matter has not been correctly appreciated by the learned trial Court because it is not understandable as to how issuance of cheque in lieu of that debt was not to be construed as acknowledgment of debt.
It is evident and apparent from the material on record that there was a legal and enforceable debt or liability in favour of the complainant, in lieu of which, the cheque in question was issued by the accused to the complainant, dishonouring of which led to filing of the complaint under Section 138 of the Negotiable Instruments Act. Findings to the contrary returned by learned trial Court are perverse being contrary to the records and further being based on conjectures and surmises.
The case is remanded back to the learned trial Court with a direction that the same be adjudicated afresh on merit - appeal allowed.
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2018 (7) TMI 101 - SUPREME COURT
Validity of Conviction order set aside by High Court - dishonor of cheque due to insufficiency of funds - Section 138 of the Negotiable Instruments Act, 1881 - rebutting of presumption - High Court held that the accused has been successful in creating doubt in the mind of the Court with regard to the existence of the debt or liability - Held that:- The trial court after considering the evidence on record has returned the finding that the cheque was issued by the accused which contained his signatures. Although, the complainant led oral as well as documentary evidence to prove his case, no evidence was led by the accused to rebut the presumption regarding existence of debt or liability of the accused.
The High Court has not returned any finding that order of conviction based on evidence on record suffers from any perversity or based on no material or there is other valid ground for exercise of revisional jurisdiction. There is no valid basis for the High Court to hold that the accused has been successful in creating doubt in the mind of the Court with regard to the existence of the debt or liability. The appellant has proved the issuance of cheque which contained signatures of the accused and on presentation of the cheque, the cheque was returned with endorsement “insufficient funds”. Bank official was produced as one of the witnesses who proved that the cheque was not returned on the ground that it did not contain signatures of the accused rather it was returned due to insufficient funds - the judgment of High Court is liable to be set aside on this ground alone.
Whether there was any doubt with regard to the existence of the debt or liability of the accused? - Section 139 of the Act, 1881 - Held that:- In the present case, the trial court as well as the Appellate Court having found that cheque contained the signatures of the accused and it was given to the appellant to present in the Bank of the presumption under Section 139 was rightly raised which was not rebutted by the accused. The accused had not led any evidence to rebut the aforesaid presumption.
The High Court committed error in setting aside the order of conviction in exercise of revisional jurisdiction. No sufficient ground has been mentioned by the High Court in its judgment to enable it to exercise its revisional jurisdiction for setting aside the conviction.
The judgment of the High Court is set aside and judgment of trial court as affirmed by the Appellate Court is restored - appeal allowed.
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2018 (7) TMI 32 - SUPREME COURT
Application of anticipatory bail - limitations under Section 37 of the NDPS Act - Held that:- Under Section 37 of the NDPS Act, when a person is accused of an offence punishable under Section 19 or 24 or 27A and also for offences involving commercial quantity, he shall not be released on bail unless the Public Prosecutor has been given an opportunity to oppose the application for such release, and in case a Public Prosecutor opposes the application, the court must be satisfied that there are reasonable grounds for believing that the person is not guilty of the alleged offence and that he is not likely to commit any offence while on bail.
Having thus noticed that apparently a wrong order has been passed by the coordinate Bench of the High Court, this Court, by order dated 22-11-2017, directed the State to verify whether any steps have been taken for challenging the orders granting anticipatory bail to the co-accused.
In any case, the protection under Section 438, Cr.P.C. is available to the accused only till the court summons the accused based on the charge sheet (report under Section 173(2), Cr.P.C.). On such appearance, the accused has to seek regular bail under Section 439 Cr.P.C. and that application has to be considered by the court on its own merits. Merely because an accused was under the protection of anticipatory bail granted under Section 438 Cr.P.C. that does not mean that he is automatically entitled to regular bail under Section 439 Cr.P.C. The satisfaction of the court for granting protection under Section 438 Cr.P.C. is different from the one under Section 439 Cr.P.C. while considering regular bail.
The order dated 31-10-2017 passed by the Sessions Court is also set aside. All the three accused in both these appeals are directed to surrender before the trial court. However, we make it clear that they are free to apply for regular bail, in which case, the Sessions Court will consider the matter on the merits of the application.
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