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Indian Laws - Case Laws
Showing 61 to 80 of 89 Records
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2018 (8) TMI 1234 - MADRAS HIGH COURT
Dishonor of cheque for want of funds - Offences u/s 138 of The Negotiable Instruments Act - It is the specific case of the private complainant namely Sree Guruvayurappan Investments that the respondent herein has borrowed a sum of ₹ 2,85,000/- on 24.04.2004 and agreed to repay the said amount with interest at 36% p.a., and executed a promissory note - Held that:- The Trial Court has come to the right conclusion that the respondent has successfully rebutted the presumption and same is hereby confirmed.
The standard of proof that is required to discharge the onus of proofs, on the accused is not as that of the prosecution and the standard of evidence that is to be adduced by the defendant to rebut the presumption under Section 139 of the Negotiable Instruments Act is that of the preponderance of the probability either through direct or circumstantial evidence. For the said purpose, the learned counsel for the respondent/accused also relied upon the evidence adduced by the complainant.
The Trial Court has rightly come to the conclusion that the respondent has not issued the cheque in question for any legally enforceable debt. Accordingly, the trial Court has acquitted the accused. The said order does not require any interference and the same is hereby confirmed - Criminal appeal dismissed.
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2018 (8) TMI 1219 - MADRAS HIGH COURT
Offences punishable u/s 138 of Negotiable Instruments Act - cheques were dishonoured for the reasons "Exceeds Arrangement" and "out of date" - notices were returned unserved with an endorsement "left" - Held that:- A perusal of the records shows that out of 16 cheques, 11 cheques were presented beyond the period of 6 months. However, there are 5 more cheques, which were returned for the reason " Exceeds Arrangement". Therefore, the learned Metropolitan Magistrate, Fast Track Court No.II, Egmore, Chennai can proceed further against the petitioners herein with regard to those 5 cheques - Since the 2nd petitioner has issued the cheques in favour of the respondent/complainant, there is no necessity to aver specifically in the complaint that the 2nd petitioner was in charge of day to day affairs of the company and therefore, he can be prosecuted for the alleged offence punishable under Section 138 of the Negotiable Instruments Act.
Authority to represent the respondent/complainant M/s SEW Eurodrive India Private Ltd. - Held that:- Along with the complaint, the authorization issued to Mr.C.V.Shivakumar is filed as document No.25 and in the facts and circumstances, it cannot be said that the complaint filed by the respondent/ complainant is not maintainable - There is no reason to quash the proceedings in C.C.No.106 of 2012 on the file of the Metropolitan Magistrate, Fast Track Court No.II, Egmore, Chennai and hence the petition is liable to be dismissed.
Petition dismissed.
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2018 (8) TMI 1115 - SUPREME COURT
Jurisdiction - National Stock Exchange byelaws - place of arbitration proceedings - rejection of arbitral reward - Held that:- Once courts in Mumbai have exclusive jurisdiction thanks to the agreement dated 03.07.2008, read with the National Stock Exchange bye-laws, it is clear that it is the Mumbai courts and the Mumbai courts alone, before which a Section 34 application can be filed. The arbitration that was conducted at Delhi was only at a convenient venue earmarked by the National Stock Exchange, which is evident on a reading of bye-law 4(a)(iv) read with (xiv) contained in Chapter XI.
An application for setting aside an arbitral award will not ordinarily require anything beyond the record that was before the Arbitrator. However, if there are matters not contained in such record, and are relevant to the determination of issues arising under Section 34(2)(a), they may be brought to the notice of the Court by way of affidavits filed by both parties. Cross-examination of persons swearing to the affidavits should not be allowed unless absolutely necessary, as the truth will emerge on a reading of the affidavits filed by both parties.
Appeal allowed - decided in favor of appellant.
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2018 (8) TMI 1022 - DELHI HIGH COURT
Issuance of Cheque in the name of the mother - Section 138 of the Negotiable Instruments Act, 1881 - rebutting of presumption - validity of criminal complaint - Held that:- Ordinarily, the opportunity to rebut the presumption raised by Section 139 of the N.I. Act would be exercised and availed of by the accused at the trial by attempting to discredit the evidence of the complainant or by leading some positive evidence in rebuttal.
In the present case, however, even going by the averments in the criminal complaint, it is clear from the word go that there was no liability due to the complainant from the petitioner, i.e., the person who has been summoned as an accused. The complainant had no arrangement with the petitioner. She had not rendered any service to him. It is her sons who were engaged by him and the payment was due on account of professional services rendered by them to the petitioner.
The issuance of the cheque in the name of the mother itself is questionable. Be that as it may, since the case presented by the complainant itself shows there being no debt or other liability, the prosecution on the criminal complaint aforesaid against the petitioner is impermissible - Petition allowed.
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2018 (8) TMI 963 - SUPREME COURT
Whether in a criminal prosecution, it will be in consonance with the principles of justice, fair play and a fair investigation, if the informant and the investigating officer were to be the same person?
Held that:- In a criminal prosecution, there is an obligation cast on the investigator not only to be fair, judicious and just during investigation, but also that the investigation on the very face of it must appear to be so, eschewing any conduct or impression which may give rise to a real and genuine apprehension in the mind of an accused and not mere fanciful, that the investigation was not fair. In the circumstances, if an informant police official in a criminal prosecution, especially when carrying a reverse burden of proof, makes the allegations, is himself asked to investigate, serious doubts will naturally arise with regard to his fairness and impartiality. It is not necessary that bias must actually be proved. It would be illogical to presume and contrary to normal human conduct, that he would himself at the end of the investigation submit a closure report to conclude false implication with all its attendant consequences for the complainant himself. The result of the investigation would therefore be a foregone conclusion.
To leave the matter for being determined on the individual facts of a case, may not only lead to a possible abuse of powers, but more importantly will leave the police, the accused, the lawyer and the courts in a state of uncertainty and confusion which has to be avoided. It is therefore held that a fair investigation, which is but the very foundation of fair trial, necessarily postulates that the informant and the investigator must not be the same person. Justice must not only be done, but must appear to be done also. Any possibility of bias or a predetermined conclusion has to be excluded. This requirement is all the more imperative in laws carrying a reverse burden of proof.
Appeal allowed - The prosecution is held to be vitiated because of the infraction of the constitutional guarantee of a fair investigation - decided in favor of appellant.
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2018 (8) TMI 962 - SUPREME COURT
Smuggling - carrying of contraband item - Opium - Section 18 of NDPS Act, 1985 - acquittal of accused - non-compliance of Section 50 of the NDPS Act - Held that:- The trial court held that the oral evidence regarding production of the case property before the Magistrate was not trustworthy and not acceptable. In the absence of the order of the Magistrate showing that the contraband seized from the accused was produced before the Magistrate, the oral evidence adduced that the contraband was produced before the Magistrate cannot form the basis to record the conviction - For proving the offence under the NDPS Act, it is necessary for the prosecution to establish that the quantity of the contraband goods allegedly seized from the possession of the accused and the best evidence would be the court records as to the production of the contraband before the Magistrate and deposit of the same before the Malkhana or the document showing destruction of the contraband.
In an appeal against acquittal, the High Court will not interfere unless there are substantial and compelling reasons to reverse the order of acquittal. The mere fact that on reappreciation of evidence the appellate court is inclined to arrive at a conclusion which is at variance with the trial court, the same cannot be the reason for interference with the order of acquittal.
The findings of the trial court cannot be said to be ‘distorted conclusions’ warranting interference. Based on the oral evidence of Joginder Singh (PW-2) and Harbhajan Singh (PW-3), the High Court ought not to have interfered with the order of acquittal and the conviction of the appellant under Section 18 of the NDPS Act cannot be sustained - the conviction of the appellant under Section 18 of the NDPS Act and the sentence of imprisonment imposed on him is set aside.
Appeal allowed - decided in favor of appellant.
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2018 (8) TMI 934 - SUPREME COURT
Whether forfeiture of gratuity, under The Payment of Gratuity Act, 1972 (hereinafter referred to as ‘the Act’), is automatic on dismissal from service?
Held that:- There is no case for the Bank that the misconduct of the respondent-employee has caused any financial loss to the Bank, and therefore, forfeiture, taking recourse to sub-Section (6) of Section 4 of the Act, cannot be resorted to - the respondent-employee is entitled to the protection of the bipartite settlement.
Though the learned Counsel for the appellant-Bank has contended that the conduct of the respondent-employee, which leads to the framing of charges in the departmental proceedings involves moral turpitude, the contention cannot be appreciated. It is not the conduct of a person involving moral turpitude that is required for forfeiture of gratuity but the conduct or the act should constitute an offence involving moral turpitude. To be an offence, the act should be made punishable under law. That is absolutely in the realm of criminal law.
In the present case, there is no conviction of the respondent for the misconduct which according to the Bank is an offence involving moral turpitude. Hence, there is no justification for the forfeiture of gratuity on the ground stated in the order dated 20.04.2004 that the “misconduct proved against you amounts to acts involving moral turpitude” - the requirement of the statute is not the proof of misconduct of acts involving moral turpitude but the acts should constitute an offence involving moral turpitude and such offence should be duly established in a court of law.
Forfeiture of gratuity is not automatic on dismissal from service; it is subject to sub-Sections (5) and (6) of Section 4 of The Payment of Gratuity Act, 1972.
Appeal dismissed - decided against appellant.
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2018 (8) TMI 831 - SUPREME COURT
Eviction of the respondent-tenant - eviction on the ground that the tenant had defaulted in payment of his share of municipal tax as an occupier under the provisions of the Kolkata Municipal Corporation Act, 1980 - West Bengal Premises Tenancy Act, 1997.
Whether after the amendment of the West Bengal premises Tenancy Act by Amendment Act No. 14 of 2001 with effect from 10th July, 2001 [which had incorporated sub-section (8) to Section 5] whether a tenant who defaults in payment of his/her share of municipal tax as apportioned by the landlord would be in default of rent rendering him/her liable to eviction?
Held that:- In the present case, under the tenancy agreement municipal taxes were included in the monthly rent payable and any enhancement thereof was to result in enhancement of the monthly rent also. With the amendment made to the Act with effect from 10th July, 2001 and upon incorporation of sub-section (8) of Section 5, the obligation to pay municipal taxes as an occupier of the premises fell upon the tenant. The relevant clauses in the rent agreement therefore stood superseded by the statutory obligation cast on the tenant by the amendment to the Act - The respondent-tenant nowhere denied in any specific terms that the share of municipal taxes demanded was disproportionate or excessive or otherwise unauthorized in law. The argument advanced at the bar that the landlord cannot apportion the municipal taxes among different tenants if the premises is to be occupied by more than one tenant and it is the Municipal Corporation who is the authority to separately assess the tax payable by each tenant does not find any support from the provisions of the 1980 Act.
From the provisions of Section 230 of the 1980 Act, it is clear that the person to be assessed to tax is the person primarily liable to pay i.e. the owner who is vested with the right to recover the portion of the tax paid by him on behalf of the tenant, if required, proportionately to the extent that the value of the area occupied bears to the value of the total area of the property. Under the 1980 Act, in the event of any default on the part of the owner to pay the tax the rent payable by the tenant(s) is liable to be attached - In the present case, default on the part of the respondent-tenant is clear and evident. The obligation to pay municipal taxes on the tenant being over and above the obligation to pay the rent by virtue of the provisions of Section 5(8) of the 1997 Act, the High Court could not have imposed on the landlord the requirement of obtaining a formal order of enhancement of rent from the Rent Controller.
Appeal allowed - application filed by the landlord for eviction of the respondent-tenant is allowed.
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2018 (8) TMI 830 - DELHI HIGH COURT
Frustation of contract - Force Majeure - economic loss and un-viability of the contract due to loss in profit margins as a result of change in the policy - Net Trading Margin on Sale of Gold by PEC to be imported - 20:80 scheme of RB - whether with the change in the policy as made by the RBI circular dated 21st May, 2014, there is a cause of frustration of contract as contemplated in clause 7 of the tender document and/or Section 56 of the Contract Act?
Held that:- In Naihati Jute Mills Ltd. vs. Khyaliram Jagannath, [1967 (10) TMI 66 - SUPREME COURT], it was held that a contract is not frustrated merely because the circumstances in which it was made are altered. The Courts have no general power to absolve a party from the performance of its part of the contract merely because its performance has become onerous on account of an unforeseen turn of events.
There is no merit in the petition - petition dismissed.
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2018 (8) TMI 829 - KARNATAKA HIGH COURT
Dishonor of cheque - insufficiency of funds - Offences under Section 138 of the NI Act - whether an appeal can be maintained against the judgment of acquittal for an offence punishable under Section 138 of the NI Act before the jurisdictional Sessions Court under the proviso to Section 374 Cr.P.C.?
Held that:- Since it was a case of acquittal judgment passed by the jurisdictional court relating to the offences under Section 138 of the NI Act, the complainant could have preferred an appeal before the High Court under Section 378(4) Cr.P.C. and thereafter for special leave to the Supreme Court under Article 136 of the Constitution of India. The First appellate court, without having any jurisdiction as contemplated under the Cr.P.C., has entertained the appeal relating to the judgment of acquittal passed by the Trial Court in C.C.No.24880/2 007 and hence, the impugned judgment in Crl.A.725/2010 is passed without having any jurisdiction.
The First Appellate Court in Crl.A.No.725/2010, erroneously has reversed the acquittal judgment held by the Trial Court in C.C.24880/2007 without any jurisdiction as contemplated under Section 378(4) Cr.P.C., where the appeal has to lie before this court in a judgment of acquittal passed by the Trial Court - appeal allowed.
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2018 (8) TMI 828 - KARNATAKA HIGH COURT
Dishonor of Cheque - insufficiency of funds - only contention urged by the accused in the course of the trial is that the said cheque was handed over by him to the complainant in some other transaction and the same has been misused by the complainant to lay a false claim against him - Held that:- The reasoning assigned by the trial Court that there was no subsisting debt in respect of which the accused could have issued the cheque is liable to be set aside. Moreover, in the instant case, the complainant has produced the covering letter Ex.P.5 which clearly establishes that the accused has taken over the liability of the aforesaid Satyappa Vantigodi and in repayment of the said liability he has issued the said cheque. By taking over the said liability the accused has stepped into the shoes of the guarantor and therefore, even on that score the accused is liable to honor the said cheque.
The subject cheque having been dishonored for want of insufficiency of fund, the accused has rendered himself liable for conviction under Section 138 of N.I. Act - The contra finding recorded by the trial Court being opposed to the provisions of Section 138 of the N.I. Act and the material on record cannot be sustained.
It would be just and appropriate to sentence the accused to pay the fine amounting to twice the amount of the cheque i.e. ₹ 2,72,468/-.
Appeal allowed.
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2018 (8) TMI 827 - KARNATAKA HIGH COURT
Dishonor of Cheque - insufficiency of funds - case of accused is that the cheque in question was obtained by the Bank officials under force and duress; it was not issued by him in discharge of the debt of his father; therefore, he has not committed any offence under section 138 of N.I. Act - acquittal of accused of the offence punishable under section 138 of N.I. Act.
Whether the accused could be held liable for the consequences of dishonour of the cheque when the same was issued by him in discharge of the debt due by his father?
Held that:- In order to render the accused liable for the penal action, firstly, the dishonored cheque should have been issued by the accused; secondly, the said cheque should have been drawn on the account maintained by him with the banker for payment of any amount of money to another person from out of that account; thirdly, the cheque should have been issued towards the discharge, in whole or in part of any debt or liability - There is nothing on record to show that the respondent/accused has taken any action against the bank officials for return of the said cheque on the ground that the said cheque was taken by the bank officials under force and duress as contended by him. Even when the complainant issued a notice to him demanding repayment of the cheque amount, the accused did not even bother to reply to the said notice, making it evident that the contentions urged by the respondent/accused is only an after-thought and is calculated to set up a defence to avoid the liability for the dishonor of the said cheque. The conduct of the accused clearly indicate that the said cheque was issued by him to avert the seizure of the movables and other property of his father.
Going by the very stand taken by the accused, it stands established that the accused issued the cheque to avert seizure of movable and immovable properties of his father for recovery of the debt due by him. It is not in dispute that, on the date of issuance of the cheque by the accused, a legally enforceable debt was due by his father. It is in discharge of this debt, the accused issued the subject cheque and thereby averted the sale or confiscation of movable and immovable properties of his father in which the accused was vitally interested. Therefore, it cannot be said that the cheque was issued by the accused without any lawful consideration.
Section 138 of the N.I. Act does not debar a person from taking up the liability of another person. It is for this reason, the explanation to Section 138 of N.I. Act defines the expression ‘debt’ or ‘other liability’ as a legally enforceable debt or ‘other liability’. Further, the presumption under Section 139 of N.I. Act provides that unless the contrary is proved, the holder of a cheque received the cheque for the discharge in whole or in part of ‘any debt’ or ‘other liability’. Therefore, ‘any debt’ and ‘other liability’ would also cover the liability of another person as well.
The accused having admitted the issuance of cheque and the complainant having proved the existence of a legally recoverable debt and also having established the circumstances in which the accused issued the said cheque to avert the sale or confiscation of the properties of his father, in my view, the presumption engrafted under Section 139 of the N.I. Act comes into play - The accused has failed to rebut the said presumption with cogent and acceptable evidence. Therefore, on both these counts, the findings recorded by the Court below cannot be sustained.
Appeal allowed - accused is held guilty of the offence punishable under Section 138 of N.I.Act and is sentenced to pay a fine amounting to twice the amount of cheque i.e., ₹ 4,76,320/- within 60 days from the date of this order.
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2018 (8) TMI 769 - DELHI HIGH COURT
Revisional jurisdiction of the court of Sessions - whether the petitioner having availed of the remedy of revision should be allowed to take recourse to Section 482 Cr. PC as a substitute for virtually initiating a second revisional challenge or scrutiny which is clearly barred under Section 397(3) Cr. PC.?
Held that:- A perusal of the criminal complaint in which the impugned order was passed by the Magistrate, which has been upheld by the court of Sessions in revision, would show that it is admitted case of the petitioner that he had come in contact with the private respondents herein, they being connected to the company described as M/s. DPA Finance Pvt. Ltd. engaged in the business of providing loans and further that he had executed certain documents to avail of certain loan facility though, as per his case, upon being induced to do so.
The Magistrate was not satisfied with the prayer for direction to the police for investigation under Section 156(3) Cr. PC holding that the evidence is available and that the complainant was in a position to adduce the same - This court finds no special case made out for this court to exercise the extraordinary jurisdiction under Section 482 Cr. PC in the matter at hand. There is no miscarriage of justice or illegality in the approach adopted by the two courts below.
Petition dismissed.
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2018 (8) TMI 741 - SUPREME COURT
Security interest in agricultural land - Validity of proceedings under the SARFAESI Act, 2002 - applicability of act to agricultural land - Held that:- The expression ‘security interest’, both before and after the amendment, excludes what is specified in Section 31. Clause (i) of Section 31 stipulates that the provisions of the Act will not be applicable to any security interest created in agricultural land. The statutory dictionary in Section 2 does not contain a definition of the expression “agricultural land”. Whether a particular piece of land is agricultural in nature is a question of fact.
The classification of land in the revenue records as agricultural is not dispositive or conclusive of the question whether the SARFAESI Act does or does not apply. Whether a parcel of land is agricultural must be deduced as a matter of fact from the nature of the land, the use to which it was being put on the date of the creation of the security interest and the purpose for which it was set apart.
In the absence of a specific finding, it would be appropriate and proper to set aside the judgment of the High Court and to remit the proceedings for being considered afresh - matter restored.
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2018 (8) TMI 739 - HIMACHAL PRADESH HIGH COURT
Suspending the execution of sentence - Section 138 of the Negotiable Instruments Act, 1881 - Held that:- Hon’ble Supreme Court in case titled as Stanny Felix Pinto v. Jangid Builders Pvt. Ltd., [2001 (1) TMI 878 - SUPREME COURT OF INDIA] held that a pre condition for suspending the execution of sentence, of imprisonment imposed upon the convict, it being not imperative for the Court, to, direct the convict to deposit the entire fine amount/compensation amount, yet imposition, qua depositing of, some reasonable per centum thereof, solitarily being sufficient, to, enable the Court, while excising its jurisdiction, to suspend the execution of sentence of imprisonment imposed upon the convict, to hence make an apposite order qua its execution being suspended.
In aftermath, subject to deposit of 10% of the fine amount within four weeks from today, if not already deposited, and subject to the petitioner’s furnishing within four weeks, from today, personal and surety bonds in the sum of ₹ 50,000/- each to the satisfaction of the learned trial Court, and also with an undertaking therein to (a) appear in the Court as and when called upon to do so (b) and in case the instant Revision is dismissed, the petitioner shall surrender before the learned trial Court for receiving the sentence, thereupon the operation/execution of the sentence recorded on 16.11.2017 by the learned Judicial Magistrate, Ist Class, Court No.1, Solan, District Solan, H.P., in criminal case No. 138/3 of 2014.
Application disposed off.
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2018 (8) TMI 738 - MADRAS HIGH COURT
Refund of two Fixed deposits made with Interest - total denial of the receipt of ₹ 30 lakhs in cash from the respondent by Bank.
Whether the suit filed by the respondent/plaintiff is barred by the law of limitation? - Held that:- This Court does not want to go into this question for the first time at the stage of appeal. It is true that the question of limitation can be gone into by a Court, even without the same being raised as an issue, where on a bare reading of the plaint, this Court finds that the claim is barred by limitation. In this case limitation was not taken as a defense in the written statement and was not made as an issue before the learned Single Judge.
What is the effect of the Statement of Accounts filed by the appellant Bank under the Bankers' Books Evidence Act, 1891? - Held that:- In the instant case, the presumption that can be drawn by this Court in relation to the facts of this case is that the respondent has tried to take advantage of the availability of two original fixed deposit receipts for ₹ 20 lakhs and ₹ 10 lakhs that was not collected from him by mistake by the Officers of the appellant Bank at the time of consolidating the fixed deposit. The conduct of the appellant in waiting for 5 years and thereafter trying to take advantage of these original fixed deposit receipts, can be clearly seen in the facts and circumstances of this case.
Whether the appellant Bank has discharged the onus by disproving the claim made by the respondent and whether the respondent on the onus being shifted has established the claim? - Held that:- Even if the fixed deposit receipt marked as Exs.P-1 and P-2 is taken to be a negotiable instrument and presumption under Section 118 of the Negotiable Instruments Act, is to be drawn against the appellant Bank, the appellant Bank is entitled to rebut the presumption by means of preponderance of probabilities and for the said purpose, evidence adduced on behalf of the plaintiff and the materials on record and also the circumstances upon which the defendant relies up can be taken into consideration for the purpose of rebutting the presumption.
Whether the judgment and decree of the learned Single Judge deserves to be interfered with in this appeal? - Held that:- The learned Single Judge has drawn an adverse inference against the appellant Bank for not examining Mr.Sivasubramanian Ex.D-3 speaks for itself and there is no requirement for Mr.Sivasubramanian to come and explain about the entries made in the books of accounts and DW-1 himself was competent to explain the same. In fact, this Court is drawing an adverse inference against the respondent for not producing the books of accounts or the income tax returns in order to prove that he paid ₹ 30 lakhs by way of cash towards the fixed deposit - We are not in agreement with the findings of the learned Single Judge while allowing the suit filed by the respondent - the judgment and decree of the learned Single Judge set aside.
Appeal allowed.
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2018 (8) TMI 737 - MADHYA PRADESH HIGH COURT
Dishonor of Cheque - Section 138 of Negotiable Instrument Act - rebutting of presumption - Held that:- In Rangappa v. Sri Mohan [2010 (5) TMI 391 - SUPREME COURT OF INDIA] it is held by Hon’ble Supreme Court that “it is a settled position that when an accused has to rebut the presumption under Section 39, the standard of proof for doing so is that of ‘preponderance of probabilities’. Therefore, if the accused is able to raise a probable defence which creates doubts about the existence of a legally enforceable debt or liability, the prosecution can fail. The accused can rely on the materials submitted by the complainant in order to raise such a defence and it is conceivable that in some cases the accused may not need to adduce evidence of his/her own”.
The petitioner accused has presented those facts, i.e., the defence of the petitioner-accused. These facts must be produced before the Trial court then Trial Court will consider all the facts produced by the petitioner accused - Application dismissed.
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2018 (8) TMI 707 - BOMBAY HIGH COURT
Dishonor of Cheque - presumption to debts / liability - original accused has been acquitted by the trial Court for offence punishable under Section 138 of the Negotiable Instruments Act, 1881 - trial court found that although the respondent had not adduced any direct evidence, the material that came on record in cross-examination of the appellant was sufficient to support the defence of the respondent.
Held that:- the appellant was clearly able to establish existence of transactions between it and the respondent and further that the cheque in question was indeed issued in respect of purchase of items reflected in the bills.
There was no dispute about the fact that the signature on the cheque was that of the respondent. Therefore, the presumption under Sections 118 and 139 of the aforesaid Act operated in full force against the respondent. It has also come on record that the respondent neither sent any reply to the notice issued by the appellant on dischonour of the cheque, nor did he file any submissions or reply to the complaint filed by the appellant. The respondent also did not enter into the witness box to adduce any direct evidence to dispute the case sought to be made out by the appellant before the trial Court.
It is clear that the appellant was able to prove its case beyond reasonable doubt against the respondent and that the trial Court committed an error in acquitting the respondent. - the respondent is convicted for offfence punishable under Section 138 of the aforesaid Act.
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2018 (8) TMI 706 - BOMBAY HIGH COURT
Dishonor of cheque - Section 138 of the Negotiable Instruments Act, 1881 - case of petitioner is that the trial Court had taken cognizance of the complaint without taking recourse to inquiry under Section 202 of the Code of Criminal Procedure - Held that:- In the case of Dr.(Mrs.) Rajul Ketan Raj [2016 (2) TMI 1140 - BOMBAY HIGH COURT], this Court after taking into consideration several decisions, has taken a view that it is not mandatory to hold the inquiry contemplated under Section 202 of Cr.P.C.
The object of Section 200 of Criminal Procedure Code is to test whether the complaint makes out sufficient ground for the purpose of issuing process. The amended Sub-section (1) of Section 202 of Cr.P.C. makes it obligatory upon Magistrate that before summoning the accused residing beyond his jurisdiction he shall enquire into the case himself or direct investigation to be made by a police officer or such other person as he thinks fit, for finding out whether or not there is sufficient ground to proceed against the accused.
Upon considering and analysing the object and ambit of Section 138 of N.I. Act vis-a-viz the objection of Sub-section (1) of Section 202 of Cr.P.C., the Court had observed that the provision may not apply to the provisions under Section 138 of Negotiable Instruments Act, and, merely because accused reside outside the jurisdiction of the Court, in each and every case it is not necessary for the Court to postpone the issue of process.
In the present case, the trial Court has issued process on the basis of averment in the complaint, documents therein and the verification statement which do not require interference - petition is without any merit and is dismissed.
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2018 (8) TMI 705 - THE APPELLATE AUTHORITY –ICAI
Professional misconduct - Disciplinary Proceedings against the Chartered Accountant (member of ICAI) - CIT (A) has reviewed all statements recorded, documents seized and the statement of the Appellant before the Income Tax and found the Appellant involved in arranging the bogus bills through bogus concerns promoted by him and charged commission for that. - Board of Discipline held him guilty under Clause (10) of Part-I and Clause (2) of Part-IV of the First Schedule to the Chartered Accountants Act, 1949 and awarded punishment of removal of name of the Appellant from Register of Members for a period of one month besides a fine of ₹ 50,000/- (Rupees Fifty Thousand Only)
Held that:- Pursuantly, we have noted that all Cheque books of the said bogus concerns were lying with the Appellant and the said bogus bills were made on the computer of the Appellant. We also find that there is admission of Appellant himself before the Income Tax Department that he arranged bogus bills for commission.
The said statement remained uncontroverted till now. The learned CIT (A) upheld the addition of said commission in the hands of the Appellant. No order of Tribunal was produced before us to reverse the same but it was said that the appeal is pending. Even copy of appeal was not filed before us. It is also relevant to record here that the Appellant stated that the statement recorded by the Income Tax Department was under coercion. However, when we inquired from him that the statement was recorded on 23rd October, 2009 and for the last Nine years why he has not retracted or disputed the same, for which, no answer at all was given by the Appellant.
Consequently, when the Appellant has himself admitted charging commission at every stage of proceedings, there is no scope to challenge the findings and the Order passed by the Board of Discipline.
On the careful perusal and consideration of the materials on record, we do not find any ground to reduce the punishment awarded to the Appellant as well. - Decided against the appellant CA.
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