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Indian Laws - Case Laws
Showing 41 to 60 of 69 Records
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2020 (10) TMI 1104 - SUPREME COURT
Smuggling - Charas - Whether bias was caused by complainant also being the investigating officer? - HELD THAT:- There are no reason to draw any adverse inference against PW8 himself investigating his complaint. The appellants’ claim of bias stems from the purported delays, non-compliance of statutory mandates and non-examination of independent witness. In effect, the appellants are seeking to circuitously use the very same arguments which have individually been held by the High Court to be factually incorrect or legally irrelevant. Although in some cases, certain actions (or lack thereof) by the Investigating Officer might indicate bias; but mere deficiencies in investigation or chinks in the prosecution case can’t be the sole basis for concluding bias. The appellants have at no stage claimed that there existed any enmity or other motive for the police to falsely implicate them and let the real culprits walk free. Further, such a huge quantity of charas could not have been planted against the appellants by the police on its own.
Whether alternate version has been established and what is the effect of lack of independent witnesses? - HELD THAT:- As correctly appreciated by the High Court in detail, non-examination of independent witnesses would not ipso facto entitle one to seek acquittal. Though a heighted standard of care is imposed on the court in such instances but there is nothing to suggest that the High Court was not cognizant of this duty. Rather, the consequence of upholding the trial Court’s reasoning would amount to compulsory examination of each and every witness attached to the formation of a document. Not only is the imposition of such a standard of proof unsupported by statute but it is also unreasonably onerous in our opinion. The High Court has rightly relied upon the testimonies of the government officials having found them to be impeccable after detailed reappreciation of the entire evidence - there are no reason to disagree with such finding(s).
Whether High Court erred in reversing acquittal in appeal? - HELD THAT:- There is no gainsaid that High Courts are well within their power to reverse an acquittal and award an appropriate sentence; though they cautiously exercise such powers in practice. Illustratively, a few permissible reasons which would necessitate such interference by the High Court include patent errors of law, grave miscarriage of justice, or perverse findings of fact - the trial Court appreciated facts in a mechanical manner and dismissed the prosecution case based on a misinterpretation of law, particularly qua satisfying the burden of proof. Hence, there were more than enough reasons for the High Court to interfere with the acquittal and arrive at a different finding.
There is no merit in the appeal - appeal dismissed.
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2020 (10) TMI 1103 - SUPREME COURT
Smuggling - Charas with a resin content of 34.5% - offence under Section 20 of the NDPS Act - scope and essence of the High Court’s appellate jurisdiction against a judgment of acquittal - extent of reliance upon a document with which the other side was not confronted with during cross-examination - non-examination of independent witnesses.
Scope of appeal in cases of acquittal - HELD THAT:- There is no legal necessity for us to reappreciate the entire evidence merely on the premise that the High Court has convicted the appellant for the first time in exercise of its appellate jurisdiction. Instead, the scope of the present appeals ought to be restricted to test whether the trial Court’s order was indeed perverse and whether the High Court’s reappreciation of evidence and consequent conviction was founded on cogent evidence.
Reliance on prosecution’s reply to bail application - HELD THAT:- The High Court has correctly noted in the present case that no opportunity to controvert this reply document was given to the prosecution, nor was PW5 confronted with it. Moreover, no weight can be accorded to such reply when the trial Court itself, while rejecting bail on 17.11.1994, had interpreted the same to conclude that the police “was not having a prior information that the petitioner was carrying Charas in his Maruti Van, though, it appears, that there was a general information against the petitioner indulging in such activities.” - Since irrelevant material was impermissibly relied upon by the trial Court to arrive at an acquittal, the High Court was adequately justified to interfere with and reverse the findings.
Need for independent witnesses - HELD THAT:- As regards the question of contradiction between PW2 and PW5’s statements, we find that the High Court’s observations are unimpeachable. It would indeed be patently wrong to suggest that PW5 deposed that the independent witnesses were called after the suspected contraband had already been recovered from underneath the driver’s seat. In fact, both PW2 and PW5 unequivocally state that the polythene bag was inspected only after the independent witnesses had arrived. There might be some confusion over the timing of removal of the other substances, being the tins of ghee, honey, maize etc., but such trivialities are not material.
Leniency in sentencing - HELD THAT:- Section 20(ii)(C) of the NDPS Act, as it stands post the amendment of 2001, specifies the same minimum mandatory punishment of ten years for possession of ‘commercial quantity’ of cannabis. The High Court, as the law was being misconstrued at that time, relied upon the quantity of pure resin content of 424 gms - the sentence accorded by the High Court is clearly already far too charitable.
The appellant’s bail bonds are cancelled and the respondent State is directed to take the appellant into custody to serve the remainder of his two years’ sentence - Appeal dismissed.
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2020 (10) TMI 1102 - BOMBAY HIGH COURT
Possession of disproportionate assets - offence punishable under section 13 (2) r/with section 13 (1)(e) of the Prevention of Corruption Act, 1988 - HELD THAT:- In this case, the appellants have demonstrated no prejudice whatsoever on account of the non-examination of the investigating officer. It is not the case of the appellants that they had offered any explanation to the investigating officer, which, the investigating officer, failed to investigate. The charts which Mr. Singh refers to are not documents but they are merely figures culled out by the learned Special Judge from the proven evidence on record, which was mostly documentary in nature. The investigating officer's examination was not required for proving such charts. Besides, in this case, most of the documents were admitted under Section 294 of Cr.P.C. without any objection from the appellants. All this indicates that the appellants suffered no prejudice whatsoever in this matter on account of the non-examination of the investigating officer - it is not possible to fault the prosecution case on account of the non-examination of the investigating officer in this matter.
It is difficult to hold that the prosecution, in this case, has established the guilt of A.2 beyond a reasonable doubt. Therefore, the benefit of the doubt is due to A.2 in this matter.
In so far as the sentence awarded to A.1 is concerned, there is no case made out for interference. There is no merit in the contention that the learned Special Judge has applied the 2014 amendment by which the minimum punishment is enhanced to 4 years. In this case, the learned Special Judge had not imposed minimum punishment upon A.1. The learned Special Judge rejected the contention on behalf of A.1 that some lenient sentences should be imposed upon A.1 - Even the fine imposed by the learned Special Judge is quite consistent with the parameters under Section 16 of the said Act. Accordingly, there is no case made out to interfere with the sentence imposed upon A.1.
Appeal dismissed.
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2020 (10) TMI 1058 - SUPREME COURT
Enforcement of security interest created on the secured assets by the respondents - HELD THAT:- When the action has been taken by the competent authority as per the procedure prescribed by law and the person affected has a knowledge leaving no ambiguity or confusion in initiating proceedings under the provisions of the SARFAESI Act by the secured creditor, in our considered view, such action taken thereof cannot be held to be bad in law merely on raising a trivial objection which has no legs to stand unless the person is able to show any substantial prejudice being caused on account of the procedural lapse as prescribed under the Act or the rules framed thereunder still with a caveat that it always depends upon the facts of each case to decipher the nature of the procedural lapse being complained of and the resultant prejudiced if any, being caused and there cannot be a straitjacket formula which can be uniformly followed in all the transactions.
Adverting to facts of the instant case, we are of the view that the objection raised by the respondents was trivial and technical in nature and the appellant (secured creditor) has complied with the procedure prescribed under the SARFAESI Act. At the same time, the objection raised by the respondents in the first instance, at the stage of filing of a Securitisation Application before DRT under the SARFAESI Act is a feeble attempt which has persuaded the Tribunal and the High Court to negate the proceedings initiated by the appellant under the SARFAESI Act, is unsustainable more so, when the respondents are unable to justify the error in the procedure being followed by the appellant (secured creditor) to be complied with in initiating proceedings under the SARFAESI Act.
Appeal allowed.
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2020 (10) TMI 1057 - SUPREME COURT
Vacation of interim order - vacation of stay on operation and execution of the settlement of FL 5 Shop Pithoragarh No.1 B in favour of the Appellant - HELD THAT:- There is no allegation of malafides on the part of the Government. The only ground on which the High Court interfered with the license is on the basis of the purported loss caused to the revenue. In spite of the Division Bench being informed that there is absolutely no loss to the revenue in view of the recovery proceeding initiated against Sh. Balkar Singh, the interim order was not vacated. As a consequence, the Appellant was prevented from continuing with his business in spite of paying the amount of ₹ 3 lakhs per day to the Department. Interference with a valid license granted in accordance with rules is unwarranted. The First Respondent has misled the High Court by contending that he is willing to offer a higher amount. Such an offer should not have been entertained as he did not participate in the resettlement process. If such petitions are encouraged, there will be no finality to any license or permission granted by the Government, especially when there is no complaint of any malafides, favoritism or nepotism.
The Orders of High Court set aside - Appellant shall be permitted to continue with the business activity of running the foreign liquor shop forthwith, subject to compliance of the terms of resettlement - Writ Petition filed by the Petitioner being frivolous in nature is, therefore, dismissed with cost of ₹ 1,00,000/- to be paid to the Appellant within a period of four weeks from today.
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2020 (10) TMI 953 - SC ORDER
Direction to the respondents to make appointments against all vacant posts in the Consumer Forum - relief of extension of the term of Shri O.P. Gupta as Member (Judicial), State Consumer Disputes Redressal Commission, Delhi till appointments are made - HELD THAT:- The applicant was appointed as a Member (Technical) in CESTAT on 29.3.2018. According to Rule 16 of 1987 Rules, the age of superannuation of a Member is 62 years - The applicant is sought to be retired on 9.8.2020 by applying the old Rules. It is submitted by Mr. C.S. Vaidyanathan, learned senior counsel that the applicant is entitled to continue for a period of four years in accordance with Tribunal, Appellate tribunal and other Authorities (Qualification, Experience and other conditions of Service of Members) Rules, 2020 (“2020 Rules”). For the present, we extend the term of the applicant for a period of three months.
A status report relating to the appointments to the posts of Members of Central Administrative Tribunal shall be filled before the next date of hearing.
List the I.A.’s on 7.9.2020.
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2020 (10) TMI 906 - PUNJAB & HARYANA HIGH COURT
Grant of Anticipatory Bail - right to get anticipatory bail, fundamental right or not - Dishonor of Cheque - section 138 of NI Act - petitioner has submitted that the present FIR is counter-blast to the complaint filed by the petitioner against the complainant under Section 138 of the NI Act - HELD THAT:- The complaint was made to the police by the complainant against the present petitioner. The police even conducted a preliminary enquiry in the matter before registration of the FIR. The police prima facie found that the petitioner, in fact, has indulged in the crime in the manner alleged against her. Not only this, the police also found the documents of the complainant, which were required for sending her abroad, with the present petitioner. It has also come on record that the complainant's family had sold agricultural land for giving amounts to the petitioner in installments of ₹ 70 thousand, ₹ 10 lacs, ₹ 10 lacs, ₹ 4 lacs, ₹ 35 thousand and ₹ 10 thousand/-. Therefore, this court finds that there are specific allegations against the petitioner, which have some force as per the record, as well as, as per the preliminary enquiry, allegedly conducted by the police.
Although, the counsel for the petitioner has submitted that the present FIR has been lodged as a counter-blast to the complaint filed by the petitioner against the complainant under Section 138 of the NI Act, however, it is a matter of record that the said complaint filed by the petitioner has since been dismissed and the complainant has already been acquitted of the charges in that case. Therefore, this submission of the counsel for the petitioner is totally irrelevant for the purpose of the present matter - this court does not find any ex-facie innocence on the part of the petitioner vis-à-vis the allegations levelled against her. Otherwise also, since the investigation is at initial stage, therefore, the police would be require to effect recoveries of the material/evidence to unearth the true dimensions of the alleged crime by the petitioner. Hence, protecting the petitioner at this stage would hamper the free and fair investigation of the case as well.
This court does not find this to be a fit case to exercise its power under Section 438 Cr.P.C so as to protect the petitioner against her arrest - Petition dismissed.
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2020 (10) TMI 905 - KARNATAKA HIGH COURT
Dishonor of Cheque - offence under Section 138 of the Negotiable Instruments Act - rebuttal of presumption - HELD THAT:- If the cheque was misused to the detriment of the accused with such huge financial implications, no man of ordinary prudence sits back without initiating any action against the complainant or the said Shamala Godi which was not done by the accused. This circumstance also weighed with the Courts below - Further, as admitted by the accused herself, she was involved in similar cheque bounce case as was evident by Ex.P-9 - the joint memo filed in Crl.Misc.No.93/2013 on the file of the II Additional J.M.F.C., Chikmagalur.
These records show that accused was involved in the similar case on the allegation of borrowing loan from one Annapoorna issuing cheque and the cheque was dishonoured. Ex.P9 the joint memo shows that the accused settled the said matter for ₹ 1,00,000/- ultimately. Ex.P10 was the certified copy of the application filed by Annapoorna in Crl.Misc.No.93/2013 for recovery of compensation of ₹ 1,50,000/- in pursuance of the order passed in C.C.No.1630/2007 convicting the accused for the offence punishable under Section 138 of NI Act.
The trial Court has rightly convicted and sentenced the accused and that was confirmed by the First Appellate Court. This Court finds no ground to admit the petition - Petition dismissed.
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2020 (10) TMI 904 - KARNATAKA HIGH COURT
Dishonor of Cheque - offence punishable under Section 138 of the Negotiable Instruments Act, 1881 - restoration of the complaint which was returned to the complainant - HELD THAT:- It is not in dispute that the present respondent had instituted a criminal case against the present petitioners in the trial Court for the offence under Section 138 of the NI Act.
Though the learned counsel for the petitioners contends that, after return of the complaint, the complainant did not present the same before the jurisdictional Court, but the same is proved to be not correct in view of the observation made by the trial Court in the impugned order, where it is clearly stated that the matter was presented before the Salem Court and again it was returned, in view of the NI Ordinance 2015.
Thus it is clear that, subsequent to return of the complaint by the trial Court, the complainant had filed the said complaint before the appropriate jurisdictional Court. However, by virtue of the amendment to Section 142 of the NI Act, which is with effect from 15.06.2015, once again the complainant has approached the original trial Court. No doubt he has made an application under Section 142 of the NI Act, but making such an application would not in any way cause any prejudice to either side. On the other hand, it would enable him to get reentry in the trial Court by bringing to its notice the amended provision of Section 142 of NI Act - since the materials placed before this Court go to show that, after return of the complaint, the complainant has filed the complaint at then prevailing jurisdictional Court and by subsequent amendment to Section 142 of the NI Act, has once again approached the trial Court, I do not see any illegality or irregularity in the impugned order challenged in this petition.
Petition dismissed.
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2020 (10) TMI 903 - KARNATAKA HIGH COURT
Dishonor of Cheque - section 138 of NI Act - sale of land under Coercion - complainant contended that the accused though agreed under Ex.P1 to sell his lands and received ₹ 24,00,000/- as advance sale consideration, cheated him alienating the properties to others - Void agreement or not - illegal consideration or not - HELD THAT:- The primary document to be proved was Ex.P2 the Cheque. Ex.P1 was produced to substantiate that the Cheque was issued towards the discharge of liability under a land deal. According to the complainant in all, ₹ 24,00,000/- was received and Cheque was issued towards liability of ₹ 24,00,000/- plus ₹ 10,00,000/- as damages for breach of agreement - the accused in his affidavit admits that Ex.P1 was issued by him but under coercion. The theory of coercion is also rejected. Further, before the First Appellate Court another agreement as per Ex.R1 was produced where the receipt of ₹ 24,00,000/- was admitted. Therefore, the fact that amount mentioned in Ex.P1 was ₹ 23,00,000/- does advance the case of the accused.
Void Agreement or not - accused contends that in the grant order there was bar for transfer of lands for 15 years from the date of the grant, therefore, the agreement under Ex.P1 and Ex.R1 were void - HELD THAT:- No such defence was taken before the trial Court and the Appellate Court. The said contention is being raised for the first time before this Court. On that count only the said contention is liable to the rejected - Even otherwise the accused did not produce the grant order or the copy of the grant order to show that there was a bar for alienation. It is a settled position of law that mere agreement to sell does not amount to transfer of property. What would be barred is the transfer of property and not agreement to transfer the property. Therefore, there is no merit in the contention that the agreement was void.
Illegal Consideration or not - accused contended that the agreements Ex.P1 and Ex.R1 were void, therefore, as per Section 23 of the Indian Contract Act, 1972 the consideration becomes illegal and the recovery of the same cannot be enforced - HELD THAT:- The contention that agreements was void is already rejected. Apart from that, Section 65 of the Indian Contract Act binds him to refund the money received. The said section bars the accused from making unjust enrichment - Looked from any angle, there is no error, illegality, incorrectness in the judgments of conviction and sentence passed by the Courts below.
The revision petition is dismissed.
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2020 (10) TMI 815 - SUPREME COURT
Validity of order passed by Lower Court, which has been stayed by the Hon’ble High Court, Bombay - HELD THAT:- We must remind the Magistrates all over the country that in our pyramidical structure under the Constitution of India, the Supreme Court is at the Apex, and the High Courts, though not subordinate administratively, are certainly subordinate judicially.
We expect that the Magistrates all over the country will follow our order in letter and spirit. Whatever stay has been granted by any court including the High Court automatically expires within a period of six months, and unless extension is granted for good reason, within the next six months, the trial Court is, on the expiry of the first period of six months, to set a date for the trial and go ahead with the same.
The order dated 04.12.2019 is set aside with a direction to the learned Additional Chief Judicial Magistrate, Pune to set down the case for hearing immediately - application disposed off.
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2020 (10) TMI 746 - SUPREME COURT
Violation of Principles of Natural Justice - Cancellation of second tender - E-Tender notice for unloading/loading of foodgrains/fertilizer bags from/into railway wagons, trucks etc., stacking the foodgrains/fertilizers in bags, bagging, weighment, standardisation, cleaning of foodgrains/fertilizers etc. and transporting of foodgrains/fertilizers etc. from Railway Station to Corporation godowns or vice versa - Managing Director of the Corporation cancelled the aforesaid tender apparently on the ground that it was “impractical” to go ahead with such tender.
HELD THAT:- Despite the fact that the prayer in the Writ Petition filed by Respondent No.1 was set out in the very beginning of the impugned judgment, confining itself to the cancellation of the second tender, the impugned judgment went ahead and not only set aside such cancellation vide the letter dated 26.07.2019, but also went ahead and set aside the Managing Director’s report dated 14.06.2019, and the Special Secretary’s order of 16.07.2019, which required the taking of disciplinary action and recovery of financial loss from those who are responsible. Shri Rakesh Dwivedi also fairly conceded that his client had not asked for any relief qua the delinquent officers. This being the case, we set aside the impugned judgment insofar as it has quashed the Managing Director’s report dated 14.06.2019, and the order of the Special Secretary dated 16.07.2019. Any consequential action that is to be taken pursuant to these orders must follow in accordance with law.
It may be added that every case in which a citizen/person knocks at the doors of the writ court for breach of his or its fundamental rights is a matter which contains a “public law element”, as opposed to a case which is concerned only with breach of contract and damages flowing therefrom. Whenever a plea of breach of natural justice is made against the State, the said plea, if found sustainable, sounds in constitutional law as arbitrary State action, which attracts the provisions of Article 14 of the Constitution of India - The present case is, therefore, a case which involves a “public law element” in that the petitioner (Respondent No.1 before us) who knocked at the doors of the writ court alleged breach of the audi alteram partem rule, as the entire proceedings leading to cancellation of the tender, together with the cancellation itself, were done on an ex parte appraisal of the facts behind his back.
Judged by the touchstone of these tests, it is clear that Respondent No.1 has been completely in the dark so far as the cancellation of the award of tender in his favour is concerned, the audi alteram partem rule having been breached in its entirety. As has been correctly argued by Shri Rakesh Dwivedi, prejudice has indeed been caused to his client, not only from the fact that one year of the contract period has been taken away, but also that, if the impugned High Court judgment is to be set aside today, his client will be debarred from bidding for any of the Corporation’s tenders for a period of three years. Undoubtedly, prima facie, the rates at which contracts have been awarded pursuant to the tender dated 01.06.2018 are way above the rates that were awarded of the same division, and for exactly the same amount of work awarded vide the earlier tender advertisement dated 01.04.2018. Shri Dwivedi’s argument that in the neighbouring regions the rates tendered were also high, and nothing has yet been done to nullify these tenders and the financial loss caused, does carry some weight. That a huge financial loss to the Corporation has also taken place is something for the Corporation to probe, and take remedial action against the persons responsible.
The impugned judgment of the High Court is upheld on the ground that natural justice has indeed been breached in the facts of the present case, not being a case of admitted facts leading to the grant of a futile writ, and that prejudice has indeed been caused to Respondent No.1. In view of this finding, there is no need to examine the other contentions raised by the parties before us - appeal disposed off.
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2020 (10) TMI 726 - KERALA HIGH COURT
Dishonor of Cheque - insufficiency of funds - discharge of a legally enforceable debt or not - offence punishable under section 138 of NI Act or not - HELD THAT:- It is the duty of the accused before the court by adducing evidence to show that the cheque was not supported by consideration and that there was no debt or liability to be discharged as alleged. It is necessary on the part of the accused to set up a probable defence for getting the burden of proof shifted to the complainant. Once such rebuttable evidence is adduced and accepted by the court, the burden shifts back to the complainant. Having regard to the materials on record, this Court is of the view that the accused failed to adduce evidence to rebut the presumption or a probable case to shift the burden to the complainant.
It is well settled law that in a revision against conviction and sentence rendered concurrently by the trial court as well as the appellate court, the High Court does not, in the absence of perversity, upset factual findings arrived at by the appellate court. It is not for the revisional court to re-analyse and re-interpret the evidence on record in a case where the appellate court has come to a probable conclusion. On going through the impugned judgment, this Court is of the view that the appellate court correctly applied the presumption under Section 139 of the Act. Unless the contrary is proved, it is presumed that the holder of a cheque received the cheque of the nature referred to in Section 138 of the Act for the discharge, in whole or in part, of any debt or other liability.
On a perusal of the entire evidence, it is disclosed that Ext.P2 cheque was issued to the complainant. The cheque was presented in time. Notice was issued calling upon the accused to pay the amount covered under the cheque within 15 days from the date of receipt of the notice in accordance with law. The amount was not paid as demanded. Hence, all the legal formalities under Section 138 of the NI Act have been complied with - In the case at hand, the accused has no case that she has not signed the cheque or parted with under any threat or coercion. That apart, the accused has no case that unfilled cheque had been lost irrecoverably or stolen. The accused failed to prove in the trial by leading cogent evidence that there was no debt or liability. In view of the above, this Court is of the view that the trial court and the appellate court rightly entered a finding that Ext.P2 cheque was issued for a legally enforceable debt. Accordingly, the case of the complainant has been proved beyond reasonable doubt.
The offence punishable under Section 138 of the NI Act is punishable with imprisonment or with fine or with both. Considering the fact that the accused is a lady aged 66 years, it is not necessary to impose compulsory imprisonment on her. Hence, the sentence imposed is liable to be modified - application allowed in part.
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2020 (10) TMI 725 - MADRAS HIGH COURT
Dishonor of Cheque - the accused was directed to pay a sum of ₹ 3,25,000/- as compensation. Default sentence was also imposed - HELD THAT:- The learned counsel appearing for the petitioner states that the petitioner is now aged about 60 years. He is said to be suffering from old age related ailments. Therefore, the learned counsel appearing for the petitioner wanted this Court to show some indulgence. The petitioner had remitted a sum of ₹ 50,000/- at the time of obtaining suspension of sentence. The petitioner has no objection for the legal heirs of the complainant to take the said amount. The petitioner is also willing to deposit a further sum of ₹ 50,000/- to the credit of S.T.C.No.449 of 2011 on the file of the Judicial Magistrate, Aundipatti, within a period of eight weeks from the date of receipt of a copy of this order. The legal heirs of Baskaran can withdraw the same.
If the petitioner does not comply with the said undertaking to pay a sum of ₹ 50,000/- more within the period mentioned above, the petitioner will undergo the default sentence. Recording the said undertaking of the revision petitioner, the Judgment passed by the Courts below is modified as follows:-
a) The conviction imposed on the petitioner finding him guilty of the offence under Section 138 of the Negotiable Instruments Act is confirmed.
b) The sentence of imprisonment for a period of six months Simple Imprisonment is modified to five months Simple Imprisonment.
c) The petitioner has already undergone the said five months Simple Imprisonment and that therefore, he need not undergo the modified sentence of imprisonment.
d) The compensation directed to be paid by the petitioner is reduced to ₹ 50,000/-. The petitioner is given eight weeks from the date of receipt of a copy of this order to deposit the said amount. The legal heirs of the complainant can withdraw the amount of ₹ 50,000/- already deposited by the accused and the amount of ₹ 50,000/- to be deposited by the petitioner.
e) If the petitioner fails to pay the compensation amount of ₹ 50,000/-, the petitioner will undergo the default sentence for a period of three months Simple Imprisonment.
Criminal revision petition stands partly allowed.
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2020 (10) TMI 575 - ALLAHABAD HIGH COURT
Dishonor of Cheque - maintaining prosecution under section 141 of N.I. Act for arraining the company as an accused - main contention of the petitioner is that the prosecution could not launch unless and until the firm arraign as accused - whether in sole proprietorship firm indictment of firm arraign as parties is necessary or not? - HELD THAT:- The phrase "association of individuals" necessarily requires such entity to be constituted by two or more individuals i.e. natural persons. On the contrary a sole-proprietorship concern, by very description does not allow for ownership to be shared or be joint and it defines, restricts and dictates the ownership to remain with one person only. Thus, "associations of individuals" are absolutely opposed to sole-proprietorship concerns, in that sense and aspect - A 'partnership' on the other hand is a relationship formed between persons who willfully form such relationship with each other.
In the context of an offence under section 138 of the Act, by virtue of Explanation (b) to section 141 of the Act, only a partner of a 'firm' has been artificially equated to a 'director' of a 'company'. Its a legal fiction created in a penal statute. It must be confined to the limited to the purpose for which it has been created. Thus a partner of a 'firm' entails the same vicarious liability towards his 'firm' as 'director' does towards his 'company', though a partnership is not an artificial person. So also, upon being thus equated, the partnership 'firm' and its partner/s has/have to be impleaded as an accused person in any criminal complaint, that may be filed alleging offence committed by the firm. However, there is no indication in the statute to stretch that legal fiction to a sole proprietary concern - Besides, in the case of a sole proprietary concern, there are no two persons in existence. Therefore, no vicarious liability may ever arise on any other person. The identity of the sole proprietor and that of his 'concern' remain one, even though the sole proprietor may adopt a trade name different from his own, for such 'concern'.
The principle contained in section 141 of the Act is not applicable to a sole-proprietary concern.
The petitioner taken the money in advance by way of loan and petitioner handed over the cheques bearing no. 850213 & 850214 amount of ₹ 50,000/- each only for the security for payment of money advance by way of loan. So the transaction of money and cheques not in the prosecution of business of firm but cheques handed over by petitioner to Nepal Singh in individual capacity. So due to aforesaid reason too no need to implead the sole proprietor firm by his firm name - there is no illegality or irregularity in the orders.
Petition dismissed.
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2020 (10) TMI 531 - MADHYA PRADESH HIGH COURT
Grant of Bail - Dishonor of Cheque - applicant in his application has submitted that the applicant although is the director of the company Auby Satellite Pvt. Ltd, he did not indulge in any financial dealings and all financial matters were looked after by the co-accused Neeraj Shukla only - HELD THAT:- It has been admitted by the counsel for the applicant that the cheques were indeed given to the complainant. However, it has been submitted that application is pending under Section 138 of N.I. Act and that applicant has appropriate explanation which shall be divulged while defending his case under Section 138 of N.I. Act. It has been stated that the aforesaid cheques were given only for security purposes of the transaction. Despite these arguments the fact remains that applicant admits to have given the cheque to the complainant which could not be encashed. During the submissions it came to light that the applicant is barely an undergraduate whereas in Annexure A/3, which is a permission letter to visit Lakshdweep by ADM Union Territory of Lakshdweep, the applicant is shown to be an engineer with the organization BSNL whereas neither the applicant is an engineer nor he works in BSNL organization.
This Court does not feel inspired to allow the bail application of the applicant. Although it appears that there is a transaction of ₹ 7.00 lacs depicted in statements of account, but the fact remains that the applicant company had given two cheques to the complainant total amount of which was ₹ 24,84,000/-. The delay in lodging the FIR has been appropriately explained by the prosecution. The applicant is although in custody since 28.6.2020, however, that in itself is not sufficient ground for the applicant to be released on bail.
No case is made out for grant of regular bail under Section 439 of Cr.P.C to the applicant - Bail application rejected.
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2020 (10) TMI 530 - MADRAS HIGH COURT
Dishonor of Cheque - insufficiency of funds - whether entire amount has been settled by the petitioner? - HELD THAT:- It is seen the respondent is the complainant who lodged a complaint for the offence punishable under Section 138 of Negotiable Instrument Act as against the petitioner and others. The petitioner herein arrayed as A3 who is representing the first accused company, as Managing Director. On purchase of the Electrical goods, the petitioner and others issued 4 cheques to the tune of ₹ 3,25,687/- to the respondent. All the cheques were returned dishonoured, and the respondent proceeded with the complaint for the offence punishable Under Section 138 of Negotiable Instruments Act.
According to the petitioner, pending the complaint the petitioner issued another seven cheques to the tune of ₹ 3,25,689/- and all the cheques were encashed by the respondent. Therefore, the entire dues as alleged in the complainant have been settled by the petitioner and even then, the respondent refused to withdraw the complainant. Whereas, the learned counsel for the respondent would submit that pending the complaint, cheques were issued in respect of other dues pertaining to the cheques in the present case. Therefore, the disputed fact is that the entire amount has been settled by the petitioner.
The petition is devoid of merits and dismissed.
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2020 (10) TMI 470 - ALLAHABAD HIGH COURT
Grant of Bail - Dishonor of Cheque - cheque is alleged to have bounced in the year 2015 and no efforts were made by the informant to file complaint. After three of years, FIR has been lodged on the basis of false allegation against the applicant - HELD THAT:- Larger mandate of the Article 21 of the Constitution of India and the dictum of Apex Court in the case of DATARAM SINGH VERSUS STATE OF UTTAR PRADESH AND ANR. [2018 (2) TMI 410 - SUPREME COURT] and without expressing any opinion on the merits of the case, let the applicant involved in the aforesaid crime be released on bail on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned with the conditions imposed - application allowed.
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2020 (10) TMI 469 - MADRAS HIGH COURT
Dishonor of Cheque - insufficiency of funds - offences under Section 138 r/w 142 Negotiable Instrument Act - petitioner also filed application for declaring him insolvent - HELD THAT:- The petitioner is an accused in the complaint lodged by the respondent under Section 138 of NI Act. The respondent lodged complaint alleging that the respondent is a manufacturer of crackers and supplying the same to the wholesalers and retailers. The petitioner is being retailer of cracker, purchased the crackers on various dated from the year 2017, thereby the petitioner is liable to pay a sum of ₹ 1,86,00,000/- to the respondent herein. Hence, the petitioner had entered into an agreement on 24.04.2018 and he agreed to pay the due amount. In order to pay the part of the above amount, the petitioner issued cheque for a sum of ₹ 15,00,000/-. The said cheque was present for collection and the same was returned dishonour for the reason that "Funds insufficient". It was duly informed to the petitioner herein and after his instruction, the cheque was once again presented for collection. Again it was returned dishonour for the reason that "Drawer's signature differ". Therefore after issuing statutory notice, respondent initiated the present proceedings for the offences punishable under Section 138 of NI Act as against the petitioner.
Though the petitioner filed petition to declare him as insolvent in I.P.No.5 of 2018, it is no way bared for the respondent to proceed with the complaint for the offences under Section 138 of NI Act. Further, the learned counsel appearing for the petitioner would submit that the alleged cheques were obtained from the petitioner under threat and coercion. However, there is no iota that the cheques were obtained under threat and coercion and also there is no complaint lodged by the petitioner before the police officials regarding the said coercion. Therefore, the present petition is devoid of merits and liable to be dismissed.
Petition dismissed.
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2020 (10) TMI 312 - KERALA HIGH COURT
Dishonor of Cheque - Offences punishable u/s 138 of NI Act - rebuttal of resumption - Sections 118 and 139 of the Act - HELD THAT:- Section 118 of the Act provides certain presumptions to be raised laying down some special rules of evidence relating to presumptions. The presumption, therefore, is a matter of principle to infuse credibility to negotiable instruments including cheques and to encourage and promote the use of negotiable instruments in financial transactions. Section 118 of the Act provides presumptions to be raised until the contrary is proved, (i) as to consideration, (ii) as to date of instrument, (iii) as to time of acceptance, (iv) as to time of transfer, (v) as to order of indorsements, (vi) as to appropriate stamp and (vii) as to holder being a holder in due course. That apart, Section 139 of the Act provides that it shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in Section 138 of the Act for the discharge, in whole or in part, of any debt or other liability. Applying the definition of the word 'proved' in Section 3 of the Evidence Act to the provisions of Sections 118 and 139 of the Act, it becomes evident that in a trial under Section 138 of the Act, a presumption will have to be made that every negotiable instrument was made or drawn for consideration and that it was executed for discharge of debt or liability once the execution of negotiable instrument is either proved or admitted.
Needless to say that as and when the complainant discharges the burden to prove that the cheque was executed by the accused, the rules of presumptions under Sections 118 and 139 of the Act are very much available to the complainant and the burden shifts on the accused. However, this presumption is rebuttable. Under the circumstances, it is the duty of the accused before the court by adducing evidence to show that the cheque was not supported by consideration and that there was no debt or liability to be discharged as alleged. It is necessary on the part of the accused to set up a probable defence for getting the burden of proof shifted to the complainant. Once such rebuttable evidence is adduced and accepted by the court, the burden shifts back to the complainant. Having regard to the materials on record, this Court is of the view that the accused failed to adduce evidence to rebut the presumption or a probable case to shift the burden to the complainant.
On going through the impugned judgment, this Court is of the view that the appellate court correctly applied the presumption under Section 139 of the Act. Unless the contrary is proved, it is presumed that the holder of a cheque received the cheque of the nature referred to in Section 138 of the Act for the discharge, in whole or in part, of any debt or other liability. In the case at hand, the accused has no case that he has not signed the cheque or parted with under any threat or coercion. That apart, the accused has no case that unfilled cheque had been lost irrecoverably or stolen. The accused failed to prove in the trial by leading cogent evidence that there was no debt or liability.
Even a blank cheque leaf voluntarily signed and handed over by the accused, which is to some payment, would attract the presumption under Section 139 of the NI Act in the absence of cogent evidence to show that the cheque was not issued in discharge of a debt. PW1 adduced evidence to show that he had advanced the amount and the cheque was given to him in repayment of the same. On analyzing the entire evidence in detail, the trial court as well as the appellate court entered a finding that the offence under Section 138 of the NI Act is proved beyond doubt. No interference is warranted in revision.
The sentence imposed by the trial court as confirmed by the appellate court stand modified as follows; i.The revision petitioner/accused is sentenced to pay a fine of ₹ 75,000/- and in default of payment of fine to undergo simple imprisonment for three months. ii. In view of the Covid-19 pandemic, the revision petitioner/accused is given six months time to deposit the amount before the trial court. Thus, the fine amount shall be deposited in the trial court within six months time from this date, failing which the accused shall undergo simple imprisonment for three months. iii. In case, the fine amount is deposited as ordered, the same shall be released to the 1st respondent/complainant as compensation in accordance with law - Revision petition allowed.
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