|
Advanced Search Options
Indian Laws - Case Laws
Showing 61 to 69 of 69 Records
-
2020 (10) TMI 311 - MADRAS HIGH COURT
Dishonor of Cheque - Territorial Jurisdiction for initiation of proceedings - payee/complainant bank is having account only at Calcutta, the presentation of cheques at Chennai - offence u/s 138 of NI Act - HELD THAT:- Section 142(2)(a), amended through the Negotiable Instruments (Amendment) Second Ordinance, 2015 vests jurisdiction for initiating proceedings for the offence under Section 138 of the Negotiable Instruments Act, inter alia in the territorial jurisdiction of the Court, where the cheque is delivered for collection (through an account of the branch of the bank where the payee or holder in due course maintains an account) - In this case, the petitioners are doing business at Calcutta and they are residing only at Calcutta. Further, they availed loan from the respondent bank at Calcutta branch and issued the cheques only to the Calcutta branch. The respondent bank could have presented the said cheques at Calcutta branch itself, but it has presented the said cheques at Chennai branch and for that the respondent bank has not stated any reason.
As per the decision of the Delhi High Court in Good Luck Traders Vs. State and Others [1779123], merely because the cheque has been presented at non-home branch of drawee bank, it does not in any manner become the drawee bank.
As per Sub-section (2) of Section 142 of the Negotiable Instruments Act, 1881, amended through the Negotiable Instruments (Amendment) Act, 2015, the offence under Section 138 of the Negotiable Instruments Act shall be inquired into and tried only by a court within whose local jurisdiction the cheque is delivered for collection through an account, the branch of the bank where the payee or holder in due course maintains the account is situated, except in cases of bearer cheques, which are presented to the branch of the drawee bank and in that case, the local court of that branch would get jurisdiction. Explanation to Sub-section (2) of Section 142 of the Act clarifies that even if the cheque is presented for collection at any branch of the bank of the payee or holder in due course, then, the cheque shall be deemed to have been presented to the branch of the bank in which the payee or holder in due course, as the case may be, maintains the account - In this case, since payee/complainant bank is having account only at Calcutta, the presentation of cheques at Chennai, shall be deemed to be presented at Calcutta Branch. Hence, the Courts at Calcutta alone will have jurisdiction and not the Courts at Chennai. Therefore, the cognizance taken by the VII Metropolitan Magistrate, George Town, Chennai is liable to be quashed.
The cognizance taken by the VII Metropolitan Magistrate, George Town, Chennai is quashed. The learned VII Metropolitan Magistrate, George Town, Chennai is directed to return the complaint to enable the complainant to present the same before the Court having territorial jurisdiction (Court at Calcutta) - Petition allowed.
-
2020 (10) TMI 310 - KARNATAKA HIGH COURT
Dishonor of Cheque - insufficiency of funds - section 138 of NI Act - whether the judgment of conviction and order on sentence passed by the trial court and confirmed by the session judge's court is incorrect and suffers with any illegality or perversity, warranting interference at the hands of this court?
HELD THAT:- Both the trial court as well as the session judge's court have rightly held that the defence of the accused that he had paid a sum of ₹ 1,00,000 to one Sri Ramesh Kumar at the behest of the complainant is not proved which is a properly reasoned correct finding.
Thus, both the trial court as well as the session judge's court have rightly rejected the defence taken up by the accused and have rightly convicted the accused for the alleged guilt. I do not find any illegality, impropriety or perversity in the said finding of those two courts. The quantum of sentence ordered also being proportionate to the gravity of the proven guilt, there is no necessity for this court to interfere with the finding given by the trial court and the session judge's court - Revision dismissed.
-
2020 (10) TMI 202 - BOMBAY HIGH COURT
Release of attached bank accounts of petitioner - dishonor of Cheque - HELD THAT:- Since Respondent No.3 in his email dated 02.03.2020 has relied upon Section 44(6) of MVAT Act and which is the basis for attachment of the bank account of the Petitioner, it would be apposite to advert to the said provision at the outset - Sub Section (6) of Section 44 of MVAT Act is subject to the provisions of Companies Act, 2013. When a provision is made subject to another provision or another statute, it would mean that the other provision or the other statute would prevail over the provision in question, in case of any conflict or inconsistency between the two. When the draftsman uses the expression “subject to” in a statute in contradistinction to the expression “notwithstanding”, it means that the other provision or the other statute would have an overriding effect over the provision under consideration.
Also, there is a clear distinction between public company and private company in law. Companies Act, 2013 makes this distinction explicit - Since Sub Section (6) of Section 44 of the MVAT Act is subject to the Companies Act, 2013 the definitions and distinctions laid down in the Companies Act, 2013 vis-a-vis public company and private company would be applicable to Section 44(6) of the MVAT Act as if by way of incorporation.
It is an admitted position, at least no dispute has been raised, that M/s. Birla Electricals Limited is a public company. If that be so, the fact that Petitioner was a director of the said company for the relevant period, though in a non-executive character and stated to have resigned, would have no bearing on fastening of liability on the Petitioner for the alleged default of M/s. Birla Electricals Limited. In such circumstances, attachment of the bank account of the Petitioner does not appear to be justified and is without any legal sanction.
Respondent Nos.5 and 6 are directed to unfreeze the bank account of the Petitioner in HDFC Bank, Goregaon (E), Mumbai forthwith - petition allowed.
-
2020 (10) TMI 151 - MADHYA PRADESH HIGH COURT
Grant of Bail - Dishonor of cheque - present applicant has been made accused because he is father of the proprietor of the said firm and looking after his business - applicant submits that the applicant is nowhere connected with the said firm - HELD THAT:- The dispute of the complainant is with the son of the present applicant i.e. Manoj Chouksey who is sole proprietor of the firm – Deepti Construction in respect of the payment of certain amount for the material supplied by him. From the face of it, the present applicant is not concerned with the said dispute. Hence, the application deserves to be allowed.
Without commenting on the merit of the case, this application is allowed - It is directed that in the event of arrest of the applicant in connection with the aforesaid crime number, he shall be released on bail upon his furnishing personal bond in the sum of ₹ 50,000/- (Fifty Thousand) with one surety in the like amount to the satisfaction of the arresting officer.
Application disposed off.
-
2020 (10) TMI 150 - MADRAS HIGH COURT
Priority of settlement of claims - payment to secured creditors - Section 26(E) of The Securitization and Reconstruction of Financial Assets and Enforcement of Securities Interest Act, 2002 and Section 31-B of The Recovery of Debts Due to Banks and Financial Institutions Act, 1993 - HELD THAT:- In the judgement relied on by the learned senior counsel for the petitioner reported in Manu/KE/3448/2019 [State Bank of India v. State of Keral dated 30.07.2019] [2019 (7) TMI 1684 - KERALA HIGH COURT], the scope and ambit of Section 26(E) of The Securitization and Reconstruction of Financial Assets and Enforcement of Securities Interest Act, 2002 and Section 31-B of The Recovery of Debts Due to Banks and Financial Institutions Act, 1993 were considered in extenso. Accordingly, it was concluded that a secured creditor under the above said provisions get priority over the right, if any, claimed by the revenue.
There is no fresh adjudication is required in the light of the judgement apart from the factual position which is not in dispute nor any contra materials produced.
Petition allowed.
-
2020 (10) TMI 112 - ANDHRA PRADESH HIGH COURT
Dishonor of Cheque - Section 138 of Negotiable Instruments Act, 1881 - the respondent/complainant issued statutory notice to the petitioner and since he has not paid the amount within the stipulated time, he filed the complaint - HELD THAT:- It is no doubt that the subject cheque was issued by the petitioner himself as an authorized signatory of M/s.Sri Constructions in favour of the petitioner himself, of course to his S.B. Account No.40280101000996 and the cheque was not directly issued in favour of the respondent/bank. However, the claim of the respondent/bank is that the subject cheque was tendered by the petitioner along with a covering letter requesting the bank to credit the cheque amount in his S.B. Account No.40280101000996 and appropriate the said amount towards part payment of loan amount. Neither party produced the said covering letter before this Court.
Therefore, whether the petitioner tendered the subject cheque dated 11.04.2012 for ₹ 5000/- along with a covering letter to the respondent/bank with a request as stated supra or not and if so whether by virtue of the said letter the respondent/bank can treat itself as holder in due course of the said cheque and file criminal complaint against the petitioner for dishonour of the cheque are the crucial issues which can be resolved only after a full fledged trial, not at this stage.
This Criminal Petition is disposed of directing the learned Judicial First Class Magistrate, Guntakal to proceed with the trial by giving liberty to both parties to adduce evidence to project their respective versions and after hearing arguments of both parties pronounce the judgment expeditiously but not later than four (4) months from the date of receipt of a copy of this order.
-
2020 (10) TMI 111 - GUJARAT HIGH COURT
Dishonor of Cheque - section 138 of NI Act - benefit of presumption - blank cheque issued for obtaining loan or not - whether a revisional court can, in exercise of its discretionary jurisdiction, interfere with an order of conviction in absence of any jurisdictional error or error of law? - Whether the payee of a cheque is disentitled to the benefit of the presumption under Section 139 of the Negotiable Instruments Act, of a cheque duly drawn, having been issued in discharge of a debtor or other liability?
HELD THAT:- From the evidence of the witness examined by the respondentaccused, case of the prosecution is supported that money transaction was carried out between the parties. An agreement to sell of the land in question was executed before the Notary on 5th December 2012 and it appears that photographs of the parties as well as their signatures are never disputed except in the cross examination of the complainant - It is well settled that in exercise of revisional jurisdiction, the High Court does not, in the absence of perversity, upset concurrent factual findings. It is not for the Revisional Court to reanalyse and reinterpret the evidence on record.
Here it is not the case of the respondentaccused that she either signed the cheque or parted with it under any threat or coercion. Nor is it the case of the respondentaccused that the unfilled signed cheque had been stolen. The existence of a fiduciary relationship between the payee of a cheque and its drawer, would not disentitle the payee to the benefit of the presumption under Section 139 of the Negotiable Instruments Act, in the absence of evidence of exercise of undue influence or coercion. Even a blank cheque leaf, voluntarily signed and handed over by the accused, which is towards some payment, would attract presumption under Section 139 of the Negotiable Instruments Act, in the absence of any cogent evidence to show that the cheque was not issued in discharge of a debt.
In the absence of any finding that the cheque in question was not signed by the respondentaccused or not voluntarily made over to the payee and in the absence of any evidence with regard to the circumstances in which a blank signed cheque had been given to the appellantcomplainant, it may reasonably be presumed that the cheque was filled in by the appellantcomplainant being the payee in the presence of the respondentaccused being the drawer, at her request and/or with her acquiescence.
The Trial Court as well as first Appellate Court have committed no error in rejecting plea raised by the respondentaccused that blank cheque was received by the complainant to obtain the loan from the bank - Application dismissed.
-
2020 (10) TMI 54 - SUPREME COURT
Claim for damages - reduction in the rate of interest from 16% per annum to 9% per annum as applicable to future interest i.e. from the date of the Award, 16.03.1998, till the date of the judgment - nonpayment of commission and failure to handover the vacant possession of the premises to the respondents - HELD THAT:- As per Clause 10 of both the Agreements, in case of any dispute, it was incumbent on the appellants to handover vacant possession of the premises to the respondents. On this issue, it is clear that disputes had arisen between the parties. However, it is an admitted position that possession of the premises was not handed over to the respondents by the appellants until the arbitration proceedings had commenced and has, in fact, only been handed over on 13 March 2000. Therefore, the Arbitrator framed Issue No. 15A regarding damages payable to the respondents. The Learned Arbitrator has rejected the plea of the appellants that they had to close the business because of the obstructionist tactics adopted by the respondents and for that reason the business activities remained closed from April, 1991 to November, 1995. On a detailed consideration of the materials on record, the Learned Arbitrator had come to the conclusion that the appellants are liable to pay the damages.
After finding the appellants liable to pay damages, the Learned Arbitrator has arrived at the quantum of damages as per the statement of accounts, furnished by the appellants based on their audited accounts, that too after deduction of TDS for a period of preclosure i.e. 15.08.1990 to 22.02.1991 and postclosure i.e. November 1995 to November 1997. The payment of damages for the closure period i.e. March 1991 to October 1995 has been arrived at as an average of commission actually paid preclosure and the commission payable postclosure as per the statement of accounts of the appellants, after deducting TDS.
The Division Bench of the High Court while dismissing the appeal has reduced the rate of interest from 16% per annum to 9% per annum from the date of the Award till the date of its judgment, subject to the appellants paying the decretal amount to the respondents on or before 30.06.2010 - the rate of interest is reduced from 16% per annum to 9% per annum from the date of the Award till this date, subject to the appellants paying the complete decretal amount to the respondents on or before 31.12.2020 failing which the Award along with interest would stand as it is.
Appeal allowed in part.
-
2020 (10) TMI 53 - DELHI HIGH COURT
Application of early hearing - Leave to appeal - Dishonor of Cheque - trial of Scheduled Offence - acuittal of respondents - whether the petitions for leave to appeal should be heard at an early date or not?
HELD THAT:- The interest of justice demands that so far as possible, part-heard matters should not be left inconclusive and if the Bench has the time to hear further arguments, those should be heard and decided as expeditiously as possible - Great pains have been taken by the learned counsels for the respondents to explain to this court that there are other matters which require the attention of this court. In some of the cases, convicts are languishing in jail and their appeals should be heard and decided first.
It is good on the part of the learned counsels for the respondents to apprise this Court that how it should proceed with the cases pending in the court but let the learned counsels be also reminded of the fact that they being the officers of this Court, should assist in part-heard cases so that these are not left undecided and need not be heard afresh by a new Bench, thus, causing unnecessary loss to the public exchequer and wastage of judicial time. It is reiterated that this Court is conscious of its duty and welcomes the suggestions given by the learned counsels but at the same time, is of the opinion that it is in the interest of administration of justice that so far as possible, this Court should make all endeavours to conclude the part-heard matters before it demits the office.
The judicial discipline demands that the Judge should do his duty and must not succumb to pessimism and it is not expected from him to sit leisurely with his pen down and to say that he will not hear the cases because the record is voluminous and the time at his disposal is limited. It will be a folly not to make an attempt and to sit idle abdicating one’s duty. It is advisable to perform one’s duty irrespective of the fact whatever conclusion the petitions reach. This Court, therefore, will not fail in its duty and expects all the learned counsels to cooperate and assist this Court in deciding the matters expeditiously.
The applications moved for early hearing of the leave petitions are allowed.
|
