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Indian Laws - Case Laws
Showing 41 to 60 of 89 Records
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2018 (8) TMI 1770 - SUPREME COURT
Settlement of debt of an Operational Creditor - Held that:- This time-line shall be strictly adhered to and payment of ₹ 550 Crores (Rupees Five Hundred Fifty Crores only) be made on or before 30th September, 2018 - In the meanwhile, the undertaking that is to be given by the Chairman of the Company concerned shall be given within a period of one week from today - list on Monday, the 1st October, 2018.
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2018 (8) TMI 1762 - CALCUTTA HIGH COURT
Arbitral Award - proceedings under Section 34 of the 1996 Act - Held that:- It is elementary that in receiving a challenge to an arbitral award, the Court does not exercise appellate authority or take up the burden to reappraise the evidence to ascertain whether the award in respect of a particular head was justified. The arbitrator is regarded as a final arbiter on facts and unless the award under a particular head is barred by the agreement between the parties or is patently absurd to the meanest mind, the Court would scarcely interfere therewith. It is evident that the appropriate tests were applied by the Single Bench while assessing the award made under claim no.10 and the Court came to the correct conclusion that such aspect of the award could not be interfered with.
The award of pendente lite interest under claim nos. 12 and 13 in the award impugned before the Single Bench was liable to be set aside in its entirety - the award of post-award interest is not interfered with since that is within the exclusive domain of the arbitrator.
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2018 (8) TMI 1746 - SUPREME COURT
Termination of an employee - quantification of damages - alleged misconduct of the employees - general strike - Since the Board was awaiting the announcement by the Government, it was informed to the workers that the management would take a call on the issue on 23.10.2000, and that the workers should not indulge in any disruptive activity. Despite the same, are stated to have gone ahead with their threat, and at the time when the Annual Function of the Mayo College was being held on 23/24.10.2000, instigated other staff members not to go to work and created disturbances, causing grave embarrassment to the Institution - non-compliance of Section 18 of Rajasthan Non-Government Educational Institutions Act, 1989.
Held that:- We cannot lose sight of the fact that we are dealing with an educational institution of great eminence. Persons employed in educational institutions right from Class IV staff to the highest level have a far greater responsibility on account of the nature of activity which takes place in these institutions – Education. There are students of all ages, starting from younger ones to older teenagers, who are studying and living in these campuses. It is a different kind of ‘Gurukul’. Thus, anything which is done, as would cause an adverse impact on the mind of these young people, is something which we find difficult to approve, even if it is claimed as a right to make certain demands - The mode and methodology of making demands in these educational institutions cannot be at par with an industrial establishment, where workmen agitate for their rights.
An annual day is always an important day in an educational institution, with active participation of parents. It is of great significance even to the passing out batch of students, and the sensitivity of the parents and children should have been kept in mind while asserting such rights, by the employees. This appears not to have been done.
The facts of the present case are covered by the master-servant relationship. There is no adjudication by invocation of a reference to the Industrial Disputes Act, 1947. Thus, the remedy would only be in damages.
Quantification of damages - adequacy of compensation to be awarded to the appellants - Held that:- The present case is one where the conduct of the appellants cannot be said to be such that would not result in loss of confidence. The factual matrix in the context of the show cause notice and the replies to it itself clarified the position. However, the issue remains that the respondent-Institution failed in the legal compliance of the second proviso to Section 18 of the said Act and must bear the consequences of the same - The methodology of calculation would be based on the principle of wrongful termination of an employee, under the master-servant relationship. This, in turn, would import into it the requirement of the appellants endeavouring to mitigate their losses. In fact, in this context, we may observe that the claim for back-wages has apparently been raised for the first time only in the present proceedings, arising from the manner in which the High Court dealt with the matter, where it granted some compensation.
The principle of awarding adequate compensation in the form of backwages, keeping in mind aggravating and mitigating circumstances would, thus, have to be observed. The amount cannot be measly, nor can it be a bonanza. The High Court, in its wisdom, awarded the compensation of five (5) years’ backwages on the last pay drawn. Not only that, an additional benefit was conferred by providing for provident fund and retiral dues, to be calculated on the premise as if the services would be continued till the appellants attained the age of superannuation.
There are no reason to find that such an aforesaid principle can be said to be fallacious or wrong, so as to call for our interference.
It would not be appropriate to determine the amount on the basis of the last pay and allowances drawn. The calculation should be based on the actual pay and allowances liable to be drawn for the years in question, dependent on the period for which this amount is to be calculated.
The net impact is an all-inclusive compensation of ₹ 25 lakhs, in the case of Kailash Singh and ₹ 18 lakhs in the case of Jeffry Jobard. Needless to say, the amount of ₹ 5 lakhs, already paid to the appellants, in pursuance to the directions of this Court, is liable to be adjusted from the said amounts payable - We are not inclined to grant future salary and allowances to Kailash Singh, merely because he has not been granted reinstatement, with further years of his service still remaining.
The appellants are required to vacate the premises within a maximum period of one (1) month of the amount being so paid.
Appeal allowed.
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2018 (8) TMI 1601 - DELHI HIGH COURT
Information denied under RTI Act - petitioner denied the information on the ground that the information sought for by the petitioner was a third party information and in the nature of personal information and thus, exempt from disclosure under Section 8(1)(j) of the RTI Act - whether the details of profit declared by a third party and its Income tax returns is exempt from disclosure under Section 8(1)(j) of the RTI Act?
Held that:- The three principal conditions must be met for the said clause to be applicable: first, that the information sought must qualify as personal information; second, that disclosure of such information should have no relationship to any public activity or interest; and third, that it would cause unwarranted invasion of the privacy of the individual - Even if the aforesaid conditions are met, such information can be disclosed if the CPIO is satisfied that larger public interest justifies the disclosure of such information.
In view of the observations made by the Supreme Court in Girish Ramchandra Deshpande [2012 (10) TMI 218 - SUPREME COURT], the question whether Income tax returns are personal information is no longer res integra, where it was held that the petitioner in the instant case has not made a bona fide public interest in seeking information, the disclosure of such information would cause unwarranted invasion of privacy of the individual under Section 8(1)(j) of the RTI Act.
Indisputably, the information sought for by the petitioner is personal information. Such information could be disclosed only if the respondent could establish that disclosure of such information was justified by larger public interest. Even if the PIO was satisfied that disclosure of such information was justified, the PIO was required to follow the procedure given under Section 11 of the Act; that is, the PIO was required to give a notice to the concerned employee stating that he intends to disclose the information and invite the person concerned to make submissions on the question whether such information ought to be disclosed. Admittedly, no such notice was issued - Mere apprehension that a third party has declared income, which is lower than the true income, cannot justify disclosure of Income Tax Returns in larger public interest.
The impugned order directing the disclosure of personal information cannot be sustained - petition allowed.
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2018 (8) TMI 1600 - ALLAHABAD HIGH COURT
Vires of of Section 35AA and Section 35AB of the Banking Regulation Act, 1949 - interim stay of the implementation of the impugned circular dated 12.02.2018 - Held that:- I have been unable to persuade myself to find the petitioners entitled to the grant of interim relief bearing in mind factors such as the state of the banking sector, rising status of NPA’s, declining profitability of public sector banks, steady erosion of profits, majority of banks not even meeting the minimum capital requirements, the huge infusion of funds by the Union Government to shore up the banking system as a whole, the experience of RBI of existing schemes not being sufficiently strong to deal with resolution of stressed assets with expediency, all of which appear to have acted as the backdrop in which the impugned directive came to be issued.
The amendments to the 1934 and 1949 Acts, the express authorization in favour of the RBI by the Union Government, viewed cumulatively, indicate the intent to sufficiently empower RBI to deal with the subject of stressed assets. In such situations, the Court must necessarily be circumspect and tread with caution keeping the principles of “judicial deference” and “institutional competence” in mind. Ultimately the question of weighing competing economic factors, choice of fiscal measures liable to be adopted must not be interfered with lightly unless established to be palpably arbitrary.
The petitioners have failed to establish a case for the grant of interim relief at this stage - Interim relief, at this stage, need not be granted.
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2018 (8) TMI 1599 - BOMBAY HIGH COURT
Offence punishable u/s 138 of NI Act - vicarious liability under Section 141 of the NI Act - Held that:- The requirement to invoke the vicarious liability as stipulated under Section 141 of NI Act, is that the accused other than the company were incharge and responsible for the company - In the light of averments in the complaint, the submissions that they were not responsible or that they were not incharge would be probable defence which can be adjudicated at the time of trial. The complaint herein mentions details attributing sufficient role to the accused. On perusal of the averments in the present complaint, it is found that they were sufficient to issue process against the applicant.
Taking into consideration the totality of circumstances, including admission in reply to notice, averments in respective reply filed in revision applications filed before Sessions Court as well as averments in present proceedings and affidavit-in-reply in these matters, no case is made out to exercise inherent powers to quash proceedings which are based on debatable issues.
Petition dismissed.
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2018 (8) TMI 1469 - SUPREME COURT
Insurance policy - Examination of Arbitration agreement - insertion of sub-section 6A in Section 11 of the Act - Arbitration and Conciliation Act, 1966 - Whether clause 7 of the subject Insurance Policy dated 5th September, 2007 posits unequivocal expression of the intention of arbitration or is hedged with a conditionality?
Held that:- From the line of authorities, it is clear that the arbitration clause has to be interpreted strictly. The subject clause 7 which is in pari materia to clause 13 of the policy considered by a three-Judge Bench in Oriental Insurance Company Limited [2018 (5) TMI 327 - SUPREME COURT OF INDIA], is a conditional expression of intent. Such an arbitration clause will get activated or kindled only if the dispute between the parties is limited to the quantum to be paid under the policy.
The liability should be unequivocally admitted by the insurer. That is the precondition and sine qua non for triggering the arbitration clause - an arbitration clause would enliven or invigorate only if the insurer admits or accepts its liability under or in respect of the concerned policy.
Whether the communication sent on 21st April, 2011 falls in the excepted category of repudiation and denial of liability in toto or has the effect of acceptance of liability by the insurer under or in respect of the policy and limited to disputation of quantum? - Held that:- The High Court has made no effort to examine this aspect at all. It only reproduced clause 7 of the policy - the plea taken by the appellants is of denial of its liability to indemnify the loss as claimed by the JV, which falls in the excepted category, thereby making the arbitration clause ineffective and incapable of being enforced, if not non-existent. It is not actuated so as to make a reference to arbitration. In other words, the plea of the appellants is about falling in an excepted category and non-arbitrable matter within the meaning of the opening part of clause 7 and as re-stated in the second paragraph of the same clause.
The dispute in question is non-arbitrable and respondent Nos.1 & 2 ought to have resorted to the remedy of a suit. The plea of respondent Nos.1 & 2 about the final repudiation expressed by the appellants vide communication dated 17th April, 2017 will be of no avail.
Appeal allowed.
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2018 (8) TMI 1407 - SUPREME COURT
Settlement of matter by parties themselves - closure of matter before Court - Conviction u/s 138 of the Negotiable Instruments Act, 1881 - rigorous imprisonment for one year with amount of compensation - an affidavit has been filed by the first respondent stating that the matter has been settled at the intervention of the family members and he has no objection if appropriate orders are passed by the Court closing the matter.
Held that:- Having regard to the totality of the facts of the case, we are of the view that the parties ought to be allowed to settle the matter - The offence, therefore, is compounded in terms of the settlement - the order of conviction and the sentence imposed is set aside.
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2018 (8) TMI 1406 - MADHYA PRADESH HIGH COURT
Dishonor of cheque - Section 138 of the Negotiable of Instrument Act - The only contention of the respondent/accused was that the respondent has paid the cheque amount to the complainant - Held that:- The provision of Section 139 of the Negotiable Instrument Act, provides for presumption clause, but this presumption mandated by Section 139 includes a presumption that there exists a legally enforceable debt or liability and that is a rebuttable presumption - It would be appropriate to mention here that the respondent accused did not disclose that he has paid the amount in his reply to the notice issued to the respondent under Section 138 of the Negotiable Instrument Act. It would also be appropriate to mention that virtually no such reply has been filed by the respondent-accused. He has not asked any single question to the complainant, at the time of his cross-examining regarding Ex.D/2, nor he confronted the same.
In the present case, there is no supportive evidence and when the accused/respondent did not disclose document Ex.D/2 till the same was filed at the defence stage. No reasonable explanation was offered to explain why the document was not produced or pleaded earlier. It would be unsafe to exercise the power of discretion in favour of the respondent-accused, whereas the hand writing expert examined by the complainant has clearly indicated and opined that Ex.D-2 receipt do not contain the signature of the complainant.
It would be appropriate to hold that learned appellate Court has fallen in error to hold that Ex-D/2 receipt has been issued by or executed by the complainant - The judgment and sentence passed by learned J.M.F.C., Jabalpur is restored with the modification that the complainant-applicant is entitled for compensation of (Rs.1,50,000/- x 9% x 14 years = ₹ 1,89,000/- + 1,50,000/-) ₹ 3,39,000/- under Section 357 of Cr.P.C.
Revision allowed.
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2018 (8) TMI 1346 - SUPREME COURT
Tenure of the Chairperson and the Judicial/Administrative/Expert/Technical Members of all the Tribunals - Held that:- A member of the judicial service would have ordinarily continued until the date of superannuation in the state judicial service, subject to the service rules. It would be manifestly inappropriate to adopt an interpretation as a result of which, upon assuming office as Member (Judicial) in CESTAT the officer will have a tenure which will expire after five years, if it falls prior to attaining the age of 62 years.
A person selected as Member of the CESTAT will continue until the age of 62 years while a person holding the post of President shall continue until the age of 65 years - Members of the Armed Forces Tribunal shall hold office until the attainment of the age of 65 years. Chairpersons who have been former Judges of the Supreme Court shall hold office until the attainment of the age of 70 years.
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2018 (8) TMI 1345 - SC ORDER
Conviction and sentence under Section 138 of the Negotiable Instruments Act, 1881 - Held that:- Since the parties have settled the disputes, to do complete justice, the disputes should be given a quietus, subject to appropriate terms - these appeals are allowed and the conviction and sentence imposed on the appellant(s) is set aside.
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2018 (8) TMI 1344 - SIKKIM HIGH COURT
Validity of additional evidence - further evidence with regard to certain documentary evidence filed therewith - Held that:- Prima-facie it is quite evident that the document obtained by the Respondent recently and sought to be relied upon has direct bearing to the present case. In the circumstances this Court is of the view that the additional evidence sought to be produced is necessary and further that not examining the said documents may occasion a failure of justice.
It is directed that the records of the present case be remitted to the Court of Judicial Magistrate, First Class, East Sikkim at Gangtok to take the additional evidence relating to the documents filed by the Respondent in I.A. No.13/2018 in Criminal Revision Petition No.08/2015 giving opportunity to the Revisionist to rebut the same as per law - petition allowed by way of remand.
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2018 (8) TMI 1296 - MADRAS HIGH COURT
Dishonor of Cheque due to insufficiency of funds - Restoration of order of conviction passed by the learned Judicial Magistrate No.II - Trial Magistrate held that since the respondents have not produced any document to show that they have settled the amount payable by the fifth accused to the complainant and upon comparision of the signature in Ex.P17, statement of account with the cheques in question, concluded that the accused are guilty of the offence.
Held that:- The Trial Court has erroneously convicted the respondents 1 to 4 herein without properly appreciating the evidence on record. It appears that Criminal miscellaneous petition was filed under Section 311 of the Code of Criminal Procedure Code to recall the PW1 for re-examination through whom Ex.P17 was marked to show as if the cheque was given to the appellant/ private complainant towards a legally enforceable debt, at the instance of the fifth accused. It is to be noted that during cross examination, (after marking of Ex.P17) the signature in Ex.P17 was specifically denied by the respondents herein.
This Court is of the considered view that the first appellate Court is right in entertaining a suspicion with respect to the coming into existence of Ex.P17, which has not been whispered at the earlier point of time but only at the conclusion of the Trial Court. Thus, taking into consideration of Ex.P17, the first Appellate Court has rightly held that there is no proper explanation with respect to liability between the A1 and A5 alleged therein and for the debt due by A-5, A1 has issued the cheque in question - appeal dismissed.
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2018 (8) TMI 1295 - MADRAS HIGH COURT
Dishonor of cheque - Whether in a case where, the drawer of the cheque denies the liability and refuses to pay the cheque amount and issues a reply notice categorically making his stand clear to that effect, even then, should the payee wait for the expiry of 15 days and only thereafter file a complaint as provided in proviso (c) to Section 138 of the Negotiable Instruments Act?
Held that:- The scheme of giving opportunity to the drawer of the cheque is to pay the cheque amount before permitting his prosecution, no matter whether offence is complete, is unique to Section 138 of the Act. It gives chance even to the dishonest drawer to make, amend and escape prosecution - When the notice is given by the complainant demanding payment, the accused must make payment within a period of 15 days of the receipt of such notice. The words ‘the drawer of such cheque fails to make the payment’ are ostensibly different from saying ‘the drawer refuses to make payment’. The legislature has thoughtfully used the word ‘fails’ instead of other expressions, as failure can be due to variety of reasons including disability to pay. Therefore, the offence would be complete, when the drawer ‘fails’ to make payment within the stipulated time, whatever be the cause for such failure.
In view of conflicting decisions of two learned single Judges of this Court on the same issue and in view of the importance of resolving the important question of law that has arisen for consideration, this Court deems it fit to place the matter before a Division Bench in order to resolve the conflict and to come out with an authoritative pronouncement - this Court directs the Registry to place this matter before the Hon’ble Administrative Judge, so as to enable the Hon’ble Administrative Judge to consider constituting a Bench in order to hear the issue and to resolve the conflict and make an authoritative pronouncement on the issue.
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2018 (8) TMI 1294 - DELHI HIGH COURT
Correctness, legality and propriety of similar orders passed by the Metropolitan Magistrate on 21.07.2015 in the context of two different complaint cases - offence u/s 138 of the Negotiable Instruments Act, 1881 - petitioners are aggrieved by the directions of the Metropolitan Magistrate to refund the amount of ₹ 38 lakhs.
Held that:- The settlement agreement though entered upon through the process of mediation where the parties had been referred by the criminal court had been arrived at by the parties on their own free will and volition. There was no direction from the Metropolitan Magistrate for payment to be made. The amount of ₹ 38 lakhs was, thus, paid to the complainant by the accused persons on their own initiation. The question as to whether this amount (assuming it represents the value of the cheques) was due as liability or not will have to be addressed at the trial of the criminal cases which continue to remain pending.
The court of Metropolitan Magistrate not having brought about the said payment cannot be converted, midway the process, into a forum for its restitution, refund or recovery.
The impugned orders are set aside - petition allowed.
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2018 (8) TMI 1293 - MADRAS HIGH COURT
Dishonor of cheque due to insufficiency of funds - restoration of conviction passed by Learned Magistrate - it is the case of appellant that First Appellate Court, without considering the facts and circumstances, under wrong perception has reversed the conviction and acquitted the accused - Held that:- It is seen from the records that only after the receipt of the letter Ex.D.1 issued by the accused, the complainant presented the cheque which was issued at the time of borrowing the loan as security purpose. Therefore, it is evident that the alleged cheque was not issued for any legal enforceable debt by the accused. That apart, even according to the complainant a sum of ₹ 2,00,000/- was borrowed by the accused for the interest at the rate of 24% per month. Hence, if the repayment amount is calculated with interest it comes to ₹ 6,00,000/-. But the accused issued cheque only for a sum of ₹ 2,00,000/-. As such the complainant has cleverly issued statutory notice as the cheque was issued only for part of the amount payable by the accused. Therefore, it has to be presumed that the cheque was not at all issued by the accused for any legal enforceable debt.
This Court is of the considered opinion that the complainant did not fulfil the requirements as envisaged under Section 138 of Negotiable Instruments Act and it is clear that the complainant has failed to prove his case beyond any reasonable doubts - the lower appellate Court rightly acquitted the accused and reversed the judgment passed by the learned Magistrate, which does not warrant any interference from this Court.
Appeal dismissed.
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2018 (8) TMI 1238 - SUPREME COURT
Hand over 8 flats and 16 parking spaces to respondent No.1/plaintiff - principles of moulding of relief - For passing such mandatory order the learned Single Judge placed reliance on the decision of this Court in Gaiv Dinshaw Irani and Others Versus Tehmtan Irani and Others [2015 (9) TMI 1066 - SUPREME COURT], holding that the Courts ought to mould the relief in accordance with the changed circumstances for trying the litigation or to do complete justice.
Held that:- The appellant could be bound only by the agreement dated 10 March, 2003 in his favor and executed by him. Admittedly, the said agreement is the subject matter of arbitration proceedings, inter alia because respondent No.2 had failed to discharge its obligation thereunder. The appellant has already parted with the possession of flats to respondent No.2 in furtherance of agreement dated 10th March, 2003 and respondent No.1/plaintiff could be accommodated only against those flats. Asking the appellant to hand over additional 8 flats and 16 parking spaces by way of mandatory order, would be to superimpose the liability of respondent No.2/defendant No.1 on the appellant for discharging its obligation qua respondent No.1/plaintiff in relation to the agreement entered between them dated 22nd September, 1999 and including Settlement Agreement dated 4th November, 2016 and Consent Terms dated 25th September, 2017, to which the appellant is not a party.
The learned Single Judge as well as the Division Bench have committed fundamental error in applying the principle of moulding of relief which could at best be resorted to at the time of consideration of final relief in the main suit and not at an interlocutory stage. The nature of order passed against the appellant is undeniably a mandatory order at an interlocutory stage. There is marked distinction between moulding of relief and granting mandatory relief at an interlocutory stage. As regards the latter, that can be granted only to restore the status quo and not to establish a new set of things differing from the state which existed at the date when the suit was instituted.
It is well established that an interim mandatory injunction is not a remedy that is easily granted. It is an order that is passed only in circumstances which are clear and the prima facie material clearly justify a finding that the status quo has been altered by one of the parties to the litigation and the interests of justice demanded that the status quo ante be restored by way of an interim mandatory injunction - In the factual scenario in which mandatory order has been passed against the appellant is in excess of jurisdiction. Such a drastic order at an interlocutory stage ought to be eschewed. It cannot be countenanced.
The invocation of principle of moulding of reliefs so also the exercise of power to grant mandatory order at an interlocutory stage, is manifestly wrong - The appellant would be bound only by the agreement entered with respondent No.2 dated 10th March, 2003 and at best the tripartite agreement dated 11th September, 2009. The respondent No.2 having failed to discharge its obligation under the stated agreement dated 10th March, 2003, cannot be permitted to take advantage of its own wrong in reference to the arrangement agreed upon by it with respondent No.1/plaintiff and including to defeat the claim of the appellant in the arbitration proceedings.
It is appropriate to revive the ad-interim order passed by the Single Judge of the High Court on 3rd December, 2012 in Notice of Motion No.147/2013 and as corrected on 17th December, 2012, which shall operate until the disposal of the suit or until it is modified by the High Court on account of subsequent developments, if any, as and when occasion arises - appeal allowed.
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2018 (8) TMI 1237 - MADRAS HIGH COURT
Dishonor of cheque due to insufficiency of funds - Section 138 of the Negotiable Instruments Act - case of the defence is that the respondent/accused did not know the complainant and he only knew the Power of Attorney Holder of the complainant and no cheques were issued - Held that:- In view of the specific evidence of D.Ws.2 and 4 coupled with the non-production of the alleged pro-note said to have been executed by the accused and also to the effect that Ex.P.7 came into existence only on 17.02.2001 much after filing of the present complaints and taking into entirety of the circumstances, the Lower Appellate Court has rightly came to a conclusion that Ex.P.7 does not advance the case of the complainant and disbelieved the evidence of complainant and rightly disregarded the document Ex.P.7.
The next limb case of the respondent/accused is that he never knew the complainant and he only knew the Power of Attorney Holder of the complainant - Held that:- The Lower Appellate Court has rightly appreciated the evidence and correctly came to the conclusion that in the absence of specific averments in the complaint regarding the date of borrowal and discrepancy in the evidence of P.W.1 and D.W.3 viz., between the Power of Attorney Holder and his Principal and in view of the supporting evidence of D.Ws.2, 4 and 5, who have clearly supported the suggestive case of the respondent/accused and failure on the part of the complainant to produce the material documents such as pro-note alleged to have been executed by the accused, loan agreement and the relevant documents, the trial Court has clearly held that the suggestive case has been probabalised.
The complainant has failed to prove the legally enforceable pre-existing debt in support of the cheque in issue and accordingly, rejected the case of the complainant and the same cannot be found fault with and in view of the specific evidence of D.W.3 and the probablized evidence of D.Ws.2 and 4 and coupled with the want of material evidence as pointed out in the preceding paragraphs, the finding rendered by the Lower Appellate Court cannot be found fault with - Criminal appeal dismissed.
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2018 (8) TMI 1236 - DELHI HIGH COURT
Revisional jurisdiction - inherent power and jurisdiction under Section 482 of the Code of the Criminal Procedure, 1973 - validity of continuation of the proceedings before the trial court - Held that:- The petition at hand is a classic illustration of an accused in a matter involving offence under Section 138 of the Negotiable Instruments Act, 1881 making the complainant (drawee of the cheque) dance around, for years on end (now seven years), taking not only him (the complainant) but also the courts for a ride - The conduct of the petitioner in issuing a postdated cheque (pursuant to a settlement) that failed upon presentation is not one that would “enhance the credibility” of cheque transactions.
The complainant, in the hope of realization of its dues, continued to agree to enlargement of time. Some more money was paid, in bits and pieces, by installments, to some extent, over a prolonged period. In a case of this nature, it is naturally the expectation of the complainant (the creditor) that his entire dues would be settled, and this would include not only the principal amount represented by the cheques but also the interest that would have accrued thereupon. On account of prolonged proceedings, the liability of the accused has only increased.
Petition dismissed with costs of Rupees two lakhs.
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2018 (8) TMI 1235 - MADRAS HIGH COURT
Dishonor of cheque due to stop-payment - Section 138 of Negotiable Instruments Act - The case of the accused is that he never issued any cheques and he had no legal enforceable debt to issue cheques in favor of the complainant - rebutting of presumption under Section 138 of Negotiable Instruments Act - Held that:- Once the accused rebutted the presumption under Section 138 of Negotiable Instruments Act, the complainant is liable to prove his case. The complainant failed to prove his case. Since, the cheques were returned on the request for stop payment and the said stop payment was not issued by the accused.
The complainant did not prove the case as alleged by him. Further, the statutory notice Ex.P.4 was admittedly returned without serving on the accused. It is seen from the notice that the amount mentioned as 2,50,000/-, whereas the total cheque amount is 3,50,000/-. That apart, the said notice was returned for the reason no proper address, no door number and no street name . Therefore, the statutory notice was not at all sent to the proper address.
This Court is of the considered opinion that the complainant did not fulfil the requirements under Section 138 of Negotiable Instruments Act. Therefore, the trial Court after considering the entire evidence and facts and circumstances of the case, has rightly acquitted the accused and the judgment passed by the the Judicial Magistrate No.I, Gobichettipalayam does not warrant any interference from this Court - Criminal appeal dismissed.
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