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Indian Laws - Case Laws
Showing 21 to 40 of 92 Records
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2020 (2) TMI 1609
Condonation of delay of 263 days in filing the appeal suit - reason for delay stated is that learned counsel lost the certified copies of the case paper, handed over to him and could not trace the case papers, despite the effort taken, and during April 2017, the case papers were traced out and thereafter, the first appeal is filed - HELD THAT:- The reason stated is not only flimsy but also shows the casual attitude of the petitioner. The parties, who would like to prefer an appeal against the judgment and decree, are expected to be vigilant. If such a casual approach is encouraged, then this Court is of the opinion that the very principles set out in the law of limitation will be defeated. Law of limitation being a substantive law, the appeals are to be filed within a time limit. Filing an appeal within a period of limitation is the rule and condonation of delay is an exception. Thus, while condoning the delay, the Courts must be cautious and only on genuine reasons, the Courts are empowered to condone the delay. The power of discretion to condone the delay is to be exercised judiciously and by recording reasons. The reasons furnished for condonation of delay must be candid and convincing.
The condonation of delay cannot be claimed as a matter of right and only on genuine reasons, the delay is to be condoned and not otherwise. In the event of condoning the huge delay in a routine manner, the Courts are not only diluting the law of limitation but unnecessarily encouraging this kind of lapses. Therefore, reasons which are all acceptable alone must be a ground for condonation of delay, and flimsy, false and casual reasons cannot be taken for the purpose of condoning the huge delay.
This Court is of the opinion that the petitioner has not set out any acceptable ground for the purpose of condoning the delay of 263 days - Petition dismissed.
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2020 (2) TMI 1599
Dishonor of Cheque - cheque in question was issued since the shares could not be issued - HELD THAT:- The complaint filed by the Appellants Under Section 138 of the NI Act is earlier in point of time. The complaint filed by Respondent No. 2 is more than two years later. Since the issue in both the cases revolves around the same cheque, therefore, we find that instead of quashing the FIR No. 3 of 2007, the ends of justice would meet if proceedings arising out of FIR No. 3 of 2007 are transferred to the Court of Judicial Magistrate, Surat, where the proceedings of other complaint Under Section 138 of the NI Act are pending so that the complaint filed by the Appellants and the proceedings arising out of FIR alleged by Respondent No. 2 are decided together to avoid contradictory judgments and to facilitate the issues which are common in both.
The appeal is disposed of with the direction that the proceedings arising out of FIR No. 3 of 2007 PS Mehsana shall stand transferred to the Court of Judicial Magistrate, Surat where the proceedings of complaint No. 33537 of 2006 is pending.
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2020 (2) TMI 1598
Seeking grant of Bail - It is contended by Investigating Officer that charge-sheet was complete against the present petitioner and the matter was only kept pending with regard to investigation in relation to other two hundred plus suspected persons - HELD THAT:- The contention of Investigating Officer that it is the practice of SOG to make a note that the matter is kept pending under Section 173(8) of Cr.P.C. against all is also not a ground to deny the bail, more particularly when it is clearly mentioned in the charge-sheet that the investigation is kept pending under Section 173(8) of Cr.P.C. against the present petitioner. It is true that Investigating Agency has a right to continue with the investigation but equally it is true that if the investigation is not completed within a prescribed time then the accused is entitled to default bail under the provision of Section 167 of Cr.P.C.
This bail application is accordingly allowed and it is directed that accused petitioner shall be released on bail provided the conditions imposed are satisfies - application allowed.
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2020 (2) TMI 1584
Dishonor of Cheque - existence of legally enforceable debt or not - rebuttal of presumption u/s 139 of NI Act - HELD THAT:- It is well settled that the rebuttal can be made with reference to the evidence of the Prosecution as well as of Defence.
Appeal dismissed.
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2020 (2) TMI 1581
Dishonor of Cheque - allegation is that the signature found in the subject cheque differs with signature of petitioner - complainant has source of income to lend such a huge amount, or not - subject cheque was stolen by the complainant or not - HELD THAT:- The Trial Court has held that the accused has not chosen to get expert opinion and merely alleged that his signature was forged and thus, he failed to discharge his burden of disproving the case of the complainant. It is also held that since there is no complaint given by the accused for the theft of cheque, the allegation of stealing the cheque has no legs to stand. The Trial Court further held that the accused failed to disprove the allegation that the complainant has no source of income to lend the money. Further, taking into account the failure of the accused to give reply to the statutory notice, the trial Court rightly concluded that the respondent/complainant proved the legally enforceable debt or liability, whereas the petitioner/accused failed to rebut the presumption under Section 139 of the Act - the trial Court, keeping in mind the evidence available on record and also considering the decided cases, convicted the petitioner/accused and sentenced him for the offence under Section 138 of the Act.
This Court finds no reason much less valid reason to interfere with the concurrent findings so rendered by the Courts below. Further, it is settled law that while exercising revisional jurisdiction, this Court cannot re-appreciate the evidence like a Court of appeal, unless it is shown that the findings on facts arrived at by the Courts below are on the face on it perverse.
The trial Court is directed to secure the petitioner/accused and commit him in prison to undergo the remaining period of sentence, if any. If any amount has been deposited by the accused either in the appellate Court or in the trial Court in connection with this case, the same shall be disbursed with accrued interest to the complainant or to her legal heirs, as the case may be - revision dismissed.
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2020 (2) TMI 1580
Service of notice - extension of time in terms of Order V, Rule 1(22) of SCR, 2013 - Order XXI Rule 14(1) of SCR, 2013 - HELD THAT:- The time as sought for is granted.
Application disposed off.
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2020 (2) TMI 1578
Review application - whether the amendment, on the basis of which the review petition has been taken out, if considered, might have made any difference in the order under review and/or is relevant to the conclusion as reached in the said order? - Order XLI Rule 27 of the Code of Civil Procedure - HELD THAT:- Admittedly, the SARFAESI proceeding reached culmination and the award passed therein is at the stage of execution. The securities for the loan-in-question are already available for the bank to execute the award granted by the Tribunal - In the event the provision of issuance of LOC are being permitted to be used rampantly as a substitute of execution proceedings, the personal liberty of Indian citizens could potentially be jeopardized and a flood-gate will be opened, giving the government and other public authorities a handle to wreck vengeance on the citizens of India by using the provisions of the office memorandum regarding issuance of LOC to hinder the personal liberty of all citizens merely on the ground of commercial loans being defaulted.
Since the bank has a final award in its favour and has already taken recourse to an execution proceeding, it ought to restrict its implementation of the award of such execution proceeding, which is the due process provided by law, but cannot take recourse to the higher remedy of issuance of an LOC.
Even if the amendment annexed to the review petition is taken into consideration or was taken into consideration while passing the order under review, the same would not make a difference in the ratio of the order under review inasmuch as no exceptional case or any adverse effect on the economic interests of India as a whole have been made out either in the review petition or in the original request for issuance of LOC issued by the bank - even if the present amendment was placed before the court while passing the order under review, it would not have any special relevance to the conclusion reached in such order and would not be a relevant factor in passing such order.
Since the scope of review is limited, there cannot be any reason why the said limited scope should be exercised in the present case - As far as the contempt application is concerned, the issuance of a rule of contempt is resorted to any extreme cases only and, in the present case, learned counsel for the immigration authorities has given sufficient explanation as to why the order under review could not be complied with by the immigration authorities - this Court desists itself from taking resort to the extreme measure of issuance of rule of contempt and CPAN 85 of 2020 is accordingly disposed of.
Application disposed off.
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2020 (2) TMI 1577
Fire Accident - genuineness of tripartite agreement - privity of contract between the farmers and the insurance company or not - case of the insurance company is that nobody in his right mind would store agricultural produce for such a long period of time - HELD THAT:- The tripartite agreement along with the terms of the policy it is obvious that the Bank insisted that the stock be insured. The farmers were told that they would pay the premium. The cold store while fixing the rent obviously factored the premium into the rent. It was obvious that the intention of the parties was that they would be compensated by the insurance company in case of any untoward loss.
Whether the farmers are consumers? - issue of privity of contract? - HELD THAT:- It is not necessary that there should be privity of contract between the insurance company and the claimants. The definition of consumer under Section 2(d) quoted hereinabove is in 2 parts. Sub-clause (i) of Section 2(1)(d) deals with a person who buys any goods and includes any user of such goods other than the person who buys such goods as long as the use is made with the approval of such person. Therefore, the definition of consumer even in the 1st part not only includes the person who has purchased but includes any user of the goods so long as such user is made with the approval of the person who has purchased the goods. As far as the definition of the consumer in relation to hiring or availing of services is concerned, the definition is much wider - It is not necessary that those beneficiaries should be parties to the contract of insurance. They are the consumers not because they are parties to the contract of insurance but because they are the beneficiaries of the policy taken out by the insured.
The farmer had agreed to pay consideration to the cold store and, therefore, the goods were not held in trust per se but the goods were held by cold store as bailee of the goods for consideration. The possession of the farm produce was handed over by the bailor, i.e. farmer to the cold store i.e. the bailee, in terms of the contract. There may be inter se rights and liabilities between the farmer and the cold store but it cannot be said that the goods were held ‘in trust’. The goods were also not held ‘on commission’. No commission was payable and only rental was paid.
The insurance company under the insurance policy is liable to indemnify the cold store with regard to the value of goods and since the farmers are the beneficiaries, they are entitled to get the amount payable under the policy. However, this will obviously be subject to the bank clause.
The Bank cannot claim interest at the contractual rate and is not entitled to claim interest at the contractual rate because the farmers have been driven through a long drawn litigation which could have been easily avoided if the Bank had itself sent the copy of the tripartite agreement to the insurance company or insisted that the insured should send the same to the insurance company - the Bank cannot claim interest at the contractual rate. The Bank would be entitled to charge simple interest right from the date of grant of loan at the rate of 12% per annum.
The Bank shall be entitled to recover the principal amount advanced by it to each one of the farmers along with the simple interest at the rate of 12% per annum from the date of advancing of loan till repayment thereof. The insurance company is liable to pay the value of goods as reflected in the warehouse receipts of each farmer along with simple interest at the rate of 12% per annum from the date of fire till payment of the amount. The dues of the Bank till the date of fire will have to be first determined and, thereafter, the excess will be payable to the farmer along with the interest.
The insurance company shall be liable to pay to each one of the farmers the value of his goods to be assessed as per the rate mentioned on the warehouse receipts when the goods were stored in the Cold Store in terms of our direction given hereinabove along with interest at the rate of 12% per annum from the date of fire till payment or deposit thereof - Canara Bank shall file certified statements of accounts before the Karnataka State Consumer Disputes Redressal Commission showing the principal amount of loan advanced to each farmer and the amount due to the Bank by calculating simple interest @ 12% p.a. up to 13.01.2014 i.e. payable by 14.01.2014 after adjusting the payments which the Bank may have received in the loan account.
Appeal disposed off.
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2020 (2) TMI 1525
Validity of Arbitral Award - calling of entire records of arbitration proceedings before the Ld. Sole Arbitrator - impugned Award passed after more than three years - time limitation of counter claim filed by the respondent No.1 - whether the counter-claim could have been awarded contrary to the stipulation in the Supplementary MoU? - HELD THAT:- The submission of the learned counsel for the petitioners is primarily that in terms of the said stipulation, the amount was to be paid to M/s. Brawn Pharmaceuticals Ltd. Admittedly, M/s. Brawn Pharmaceuticals Ltd. was not a party before the learned Arbitrator. In fact, it is his submission that the respondent No.1 has resisted the petition filed under Section 11 of the Arbitration & Conciliation Act, 1996 by stating that there is no dispute between the petitioner and the said respondent. The grant of the counter claim in favour of the respondent No.1 is contrary to the stipulation in MoU - the submission made by the learned counsel for the petitioners is agreed upon, inasmuch as the stipulation, as reproduced above clearly states that predecessor-in-interest of the petitioners herein Late Pawan Kumar Gupta was personally liable to pay M/s. Brawn Pharmaceuticals Ltd. the unrealised portion of their share amounting to ₹ 49 lacs. Concedingly, M/s. Brawn Pharmaceuticals Ltd. has not raised a claim before the learned Arbitrator.
The benefit under the Supplementary MoU could only flow to the entity M/s. Brawn Pharmaceuticals Ltd. In the absence of any claim by M/s. Brawn Pharmaceuticals Ltd., the learned Arbitrator could not have allowed the counter claim of the respondent No.1 in his favour. The award to that extent is liable to be set aside.
Supreme Court in the case of Bharat Coking Coal Ltd. v. Annapurna Construction [2003 (8) TMI 368 - SUPREME COURT], wherein it was held that the Arbitrator cannot travel beyond the scope/parameters of the contract.
Other issues need not be considered - petition allowed.
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2020 (2) TMI 1521
Divorce my mutual consent - Arrears in payment of maintenance money (for the son) - Interpretation of statute - whether the order passed by the Additional Principal Judge, Family Court dated 05.01.2019 setting aside the order dated 06.05.2017 disposing of the application Under Section 125 Code of Criminal Procedure and restoring the application Under Section 125 Code of Criminal Procedure was contrary to Section 362 Code of Criminal Procedure? - HELD THAT:- The Appellant according to his own case has paid only an amount of One Lakh Rupees, i.e. maintenance of four months after May 2017. The arrears from July, 2015 to April 2017 has not been paid by the Appellant within six months which was time allowed by the Court. When the Appellant did not honour its commitment under settlement, can the wife be left in lurch by not able to press for grant of maintenance on non-compliance by the Appellant of the terms of settlement. The answer is obviously 'No'. Section 125 Code of Criminal Procedure has to be interpreted in a manner as to advance justice and to protect a woman for whose benefit the provisions have been engrafted.
The order passed in present case by Family Court reviving the maintenance application of the wife Under Section 125 Code of Criminal Procedure by setting aside order dated 06.05.2017 passed on settlement is not hit by the embargo contained in Section 362 Code of Criminal Procedure. The submission of learned senior Counsel for the Appellant that Section 362 Code of Criminal Procedure prohibit the Magistrate to pass the order dated 05.01.2019 cannot be accepted - the High Court did not commit an error in rejecting the application filed by Appellant Under Section 482 Code of Criminal Procedure. The inherent powers of the High Court given Under Section 482 Code of Criminal Procedure are to be exercised to secure the ends of justice.
Appeal dismissed - decided against appellant.
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2020 (2) TMI 1520
Dowry - deceit - offences punishable Under Section 498A of the Indian Penal Code and Section 4 of the Dowry Prohibition Act, 1961 - commission of an offence - HELD THAT:- The offences for which the Appellants have been charged are infact offences against society and not private in nature. Such offences have serious impact upon society and continuance of trial of such cases is founded on the overriding effect of public interests in punishing persons for such serious offences. It is neither an offence arising out of commercial, financial, mercantile, partnership or such similar transactions or has any element of civil dispute thus it stands on a distinct footing. In such cases, settlement even if arrived at between the complainant and the Accused, the same cannot constitute a valid ground to quash the F.I.R. or the charge sheet - the High Court cannot be said to be unjustified in refusing to quash the charge sheet on the ground of compromise between the parties.
Whether the allegations made in the F.I.R. constitute commission of an offence? - Section 493 of the Indian Penal Code and Section 3 read with Section 4 of the Dowry Prohibition Act - HELD THAT:- A plain reading of the Section goes to show that in order to constitute an offence under this Section, it has to be demonstrated that a man has deceitfully caused any woman, who is not lawfully married to him, to believe that she is lawfully married wife and thereby co-habit with him. In other words, the Accused must induce a woman, not lawfully married to him, to believe that she is married to him and as a result of such mis-representation, woman should believe that she was lawfully married to the man and thus there should be co-habitation or sexual intercourse - The essence of an offence Under Section 493 Indian Penal Code is, therefore, practice of deception by a man on a woman as a consequence of which the woman is led to believe that she is lawfully married to him although she is not and then make her cohabit with him.
The ingredients to constitute an offence Under Section 493 Indian Penal Code are missing from the averments. The allegations do not even prima-facie, cull out any inducement of belief in the victim that she is lawfully married to the Appellant No. 1 and on account of this deceitful misstatement, the victim co-habited with the Accused. Since the essential ingredients to constitute an offence Under Section 493 Indian Penal Code are missing from the allegations made in the F.I.R., offence under the said Section can not be said to be made out against the Appellants - The High Court having failed to advert itself to the aforesaid aspects and to that extent, the judgment is not liable to be sustained.
The essential ingredients of the offence Under Section 3/4 of the Dowry Prohibition Act are that the persons Accused should have made demand directly or indirectly from the parents or other relatives or guardians of a bride or a bridegroom as the case may be any dowry and/or abets the giving and taking of dowry - There being direct allegations of demand of Dowry in the First Information Report, the allegations prima-facie constitute a commission of an offence under the Dowry Prohibition Act and thus the charges leveled against the Appellants Under Section 3/4 of the said Act, are not liable to be quashed.
The charge sheet insofar as Section 493 Indian Penal Code is concerned stands quashed - Appeal dismissed.
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2020 (2) TMI 1516
Dishonor of cheque - admission of signature on the cheque not appreciated by Trial Court - rebuttal of legal presumption of Section 139 of the N.I. Act - legally recoverable debt beyond reasonable doubt - Section 118 of the N.I. Act - HELD THAT:- It is to be noted that there is a clear presumption under Section 139 of the N.I. Act that the cheque was drawn for discharge in full or in part of any debt or liability as the said presumption does not relate to the existence of legally enforceable debt or liability. Therefore, before drawing the presumption under Section 139 of the N.I. Act, it is the duty of the Court to see whether or not the complainant has discharged his initial burden as to existence of legally enforceable debt - No doubt as per Section 118 of the N.I. Act, there is a rebuttable presumption that every negotiable instruments made or drawn is for a consideration and such instrument when accepted, it shall presumed that it is accepted for consideration. Accordingly, as per clause (b) of Section 118 there is a presumption that every negotiable instrument bearing a date was made or drawn on such a date.
In the present case on hand, though the accused has admitted the signature of cheque and that it belongs to him, but has denied the transaction of there being any legally recoverable debt and any consideration was paid by virtue of the said cheque-Ex.P1. On going through the oral evidence and documents produced by the complainant, it is the case of the complainant that he has borrowed loan from his friend, father, brother and Bank/Society to pay to the accused of a sum of ₹ 14,00,000/- which he has paid at one stretch - it is hard to believe that the complainant has parted with the huge amount of ₹ 14,00,000/- without there being any supportive document or witness to the said parting of the amount. It is also relevant to note here that when the accused raises the plea that there is no transaction and he does not know the accused and places material for closure of the account, the onus shifts on the complainant to prove that he had parted with the amount as loan to the accused and that he had the financial capacity and a legally recoverable debt.
On perusal of the entire evidence and the material documents, it is seen that the accused has raised a probable defence and the burden has shifted to the complainant to prove his financial capacity and the issue of there being any legally recoverable debt - the Trial Court has rightly come to a conclusion that the complainant version of parting huge amount of ₹ 14,00,000/- without there being any other materials to support and having not proved in the evidence that he had the source of income to pay to the accused, is fatal and also failed to prove that there is any legally recoverable debt to the accused.
Thus, the complainant has not established nor proved legally enforceable debt and the statutory presumption which was in favour of the complainant has been duly rebutted by probable defence by the accused - the complainant has utterly failed to prove the existence of legally enforceable debt against the accused and the order of acquittal passed by the learned Magistrate does not call for any interference and the same is affirmed - appeal dismissed.
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2020 (2) TMI 1515
Financial distress - time to make payment of the principal amount and interest - HELD THAT:- The decree provided for the payment of a sum of ₹ 10.83 crore. The amount was to be paid by a certain date. Such date has passed. The default clause in the decree has come into effect and by virtue of such default clause, the appellant is liable to pay interest at the rate of 12 per cent per annum from October 10, 2017 till repayment. At the suggestion of the Court and completely without prejudice, the respondent has agreed to receive ₹ 10.83 crore, together with interest at the rate of seven per cent per annum from October 10, 2017 till full payment is discharged, in monthly instalments, subject to adequate security being furnished and the monthly instalments being reasonable.
Let the matter stand over for a fortnight.
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2020 (2) TMI 1514
Condonation of delay in presentation of this time-barred appeal - section 5 of the Limitation Act - HELD THAT:- Office is directed to locate the application and tag the same with the file for being placed before us on next Thursday.
Put up the application on February 27, 2020 under the same heading.
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2020 (2) TMI 1511
Forgery of power of attorney - acquittal of accused - substratum of the two FIRs, same or not - HELD THAT:- FIR alleges that the Respondent on account of his job invariably stayed outside. The Appellant had created a forged general power of attorney from the Respondent in his name with regard to his lands bearing Gata No. 77/0.87 decimal and sold it on the basis of the forged general power of attorney which the Respondent became aware of on 25.07.1989. The Respondent denied having ever executed any general power of attorney in favour of the Appellant. The Respondent does not dispute that the Appellant was acquitted of the charge by judgment dated 07.08.1998. The fact that the judgment may not have been made available is therefore inconsequential - The institution of Civil Suit No. 353 of 2007 by the Respondent for cancellation of the general power of attorney, after the acquittal of the Appellant, is nothing but an acknowledgment of the genuineness of the general power of attorney executed by the Respondents which he now wished to revoke.
The Respondent then filed an application Under Section 156(3) Code of Criminal Procedure which was forwarded by the Magistrate to the police leading to registration of FIR dated 09.10.2008. The allegations are similar that the Appellant put up an imposter in place of the Respondent and along with one Sushil Kumar Singh and Arvind on the basis of a general power of attorney, which the Respondent had never executed, sold his lands - It is, therefore, apparent that the subject matter of both the FIRs is the same general power of attorney dated 02.05.1985 and the sales made by the Appellant in pursuance of the same. If the substratum of the two FIRs are common, the mere addition of Sections 467, 468 and 471 in the subsequent FIR cannot be considered as different ingredients to justify the latter FIR as being based on different materials, allegations and grounds.
The substratum of the two FIRs are the same and that the Appellant has already stood acquitted on 07.08.1998 of the charge with regard to forging any general power of attorney of the Respondent, the subsequent prosecution of the Appellant in FIR No. 114 of 2008 dated 09.10.2008 is completely unsustainable - Appeal allowed.
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2020 (2) TMI 1502
Misappropriation of funds at the State Disabled Resource Center - allegations were levelled that whopping amount towards payment of salary was withdrawn by showing them to be working at the Physical Referral Rehabilitation Centre - HELD THAT:- The order under review on satisfaction that the matter needs to be investigated by an independent agency. In fact, the matter was reffered to the CBI for the reason that the SRC was manned by officers at the level of the Chief Secretary and despite direction by the PIL Court the matter was not properly examined and effective action was not taken by the State authorities.
There is no error apparent on the face of record warranting exercise of review jurisdiction to review & recall the order - both the review petitions, sans substratum, are liable to be and are hereby dismissed.
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2020 (2) TMI 1494
Breach of principles of natural justice - adjournment sought was not granted - HELD THAT:- The petitioner's request for adjournment was not granted on the count of strict adherence to the 3 opportunities and Section 33A of the Central Excise Act and when Supreme Court judgment in case of SALEM ADVOCATE BAR ASSOCIATION, TAMIL NADU VERSUS UNION OF INDIA [2005 (8) TMI 714 - SUPREME COURT], the strict adherence to such procedural aspect would not treated as an impediment so as to prevent the authority from curtaining the opportunity in the facts of appropriate case. Hence, notice is issued for final disposal.
Liberty to the petitioner to approach the Court in case of any coercive steps from the authority.
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2020 (2) TMI 1461
Suicide - harrasment - allegation is that unable to bear the torture, Nilu along with her children Harisharan aged 1½ years and Ramsharan aged 1½ years committed suicide by jumping in front of a moving train - It was contended on behalf of Respondent Nos.1 to 3 before the High Court that the ingredients of Section 306 IPC have not been made out and the proceedings are liable to be quashed - HELD THAT:- The High Court observed that the allegations made against Respondent Nos.1 to 3 at the most constitute an offence under Section 506 IPC for criminal intimidation. Read as a whole, the allegations made against Respondent Nos.1 to 3 did not make out an offence under Section 306/34 IPC. The High Court further held that ingredients of Section 107 IPC are also not satisfied. In that view, the petition filed by Respondent Nos.1-3 for quashing the criminal proceeding was allowed.
It is no more res integra that exercise of power under Section 482 CrPC to quash a criminal proceeding is only when an allegation made in the FIR or the charge sheet constitutes the ingredients of the offence/offences alleged. Interference by the High Court under Section 482 CrPC is to prevent the abuse of process of any Court or otherwise to secure the ends of justice. It is settled law that the evidence produced by the accused in his defence cannot be looked into by the Court, except in very exceptional circumstances, at the initial stage of the criminal proceedings. It is trite law that the High Court cannot embark upon the appreciation of evidence while considering the petition filed under Section 482 CrPC for quashing criminal proceedings. It is clear from the law laid down by this Court that if a prima facie case is made out disclosing the ingredients of the offence alleged against the accused, the Court cannot quash a criminal proceeding.
The conclusion of the High Court to quash the criminal proceedings is on the basis of its assessment of the statements recorded under Section 161 CrPC. Statements of witnesses recorded under Section 161 CrPC being wholly inadmissible in evidence cannot be taken into consideration by the Court, while adjudicating a petition filed under Section 482 CrPC - Appeal allowed - decided in favor of appellant.
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2020 (2) TMI 1459
Seeking for a direction to the respondent Nos.1 and 2 to hold disciplinary enquiry against the respondent No.3 inasmuch as the genuineness of his marks cards and diploma certificates at Annexures-A, B, C and D are concerned - Seeking to prosecute the respondent No.3 for manipulating the said documents - HELD THAT:- The writ petition is wholly misconceived and deserves to be rejected firstly for the reason that the petitioner claiming to be the erstwhile superior officer of the respondent No.3 who is now retired, cannot seek the relief of initiating disciplinary proceedings/criminal proceedings against the respondent No.3. If any such fraud alleged said to have been committed by the respondent No.3, ought to have been discovered by the petitioner during his service period in order to initiate the disciplinary proceedings/criminal proceedings against the respondent No.3. The petitioner/officer after his retirement becomes functus officio.
The writ of mandamus could be issued only in the circumstances where the statutory authorities fail to perform their functions vis-à-vis the fundamental right of the petitioner. The petitioner must establish that he has a legal right to the performance of a legal duty, by the party against whom the mandamus is sought and such right must be subsisting. Such duty may be one imposed by the Constitution, Statute, Common Law or by Rules or Orders having force of law.It is well settled principle that there must be a demand and a denial in substance by the authority concerned in order to claim the relief of writ of mandamus. It is ex-facie apparent that there is neither vested right nor any such request/representation/attempt made by the petitioner with the employer to examine the allegations now raised against the respondent No.3. No legal rights/fundamental right of the petitioner has been infringed. No mandamus could be issued just to set right or settle the individual differences or disputes. The Writ Court cannot be used as a tool to resolve the personal enmity or such inter-se disputes.
It is significant to note that the third respondent is now retired from service on 31.07.2019. The petitioner has filed an application – I.A-1/2018 seeking for a direction to the respondent No.1 not to release any retirement benefits to the respondent No.3 until the disposal of the writ petition. This conduct of the respondent would necessarily indicate his personal vengeance against the respondent No.3.
The writ petition being bereft of any substance, stands dismissed with cost of ₹ 10,000/- payable to the respondent No.3 within a period of four weeks.
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2020 (2) TMI 1421
Seeking permanent injunction restraining MMK from interfering with peaceful possession and enjoyment of Natasha of property - seeking permanent injunction restraining the defendants, from changing the shareholding of JKPL by increasing the authorized share capital of JKPL - seeking mandatory injunction directing the defendants to transfer 300 shares of JKPL from MMK to Natasha - HELD THAT:- Following directions are issued:
(i) At present it is in the best interest of MMK to continue living as he has been living for the past sometime and for the said status to continue. I have however met Kumkum and Rishab in Chamber and counseled them to independently of animosity between Natasha on the one hand and Kumkum and Vinay on the other hand, builda relationship in the best interest of MMK. It is not in dispute that Rishab is the son of brother of Kumkum and Vinay and there is no reason why Rishab, now having attained majority, should not make all possible attempts to forge a relationship anew with his paternal aunts and their families, forgetting the past acrimony between his mother Natasha and his paternal aunts. A cordial relationship between Rishab, Kumkum and Vinay will be the best therapy and medicine for MMK and I sincerely hope that all of them,claiming to be concerned of the well being of MMK, forgetting the past will make attempts in that direction.
(ii) Rishab shall have unlimited access to MMK and all decision regarding best care of MMK shall be taken jointly by Rishab, Kumkum and Vinay, without squabbling about annas and paise.
(iii) As far as the living expenses of MMK are concerned, the counsel for Kumkum and Vinay on his own has offered reduction thereof from the present ₹ 2 crores per annum to ₹ 1.40 crores or ₹ 1.50 crores per annum, since the litigation expenses are coming to an end. Rishab has however raised several questions with respect to the said expenses and which can broadly be categorized as (a) excessive rent of ₹ 2 lacs per month, (b) excessive electricity charges, and, (c) excessive deployment of servants.
(iv) Since MMK requires constant looking after, provision for residence for his caretaker in the house occupied by him cannot be ignored. Though MMK may occupy one room only but it is necessary to have accommodation for at least two caretakers along with him.
(v) In the accommodation of MMK, there should also be a spare guest bed room for Rishab to spend time with MMK if so desires. At the same time, there has to be sufficient space for visitors to MMK. Therefrom, it appears that the minimum accommodation required is of two bed rooms with living room, either with a servant quarter or of three bed rooms.
(vi) Because the present accommodation occupied by MMK is owned by son of Kumkum, the reasonableness of the rent being paid therefor becomes an issue. Similarly, it appears that as many as 17 servants are not required by MMK.
(vii) Since as of now there is no report of any deterioration in the health or condition of MMK, there is no need to change his caregivers.
(viii) Rishab to place before the Observer appointed by this Court proposals for renting of accommodation as aforesaid for MMK in the vicinity of the accommodation presently in his occupation and the Observer on the basis thereof is requested to assess whether the rent being paid on behalf of MMK to the son of Kumkum is higher than the prevailing rents and if so, either the rent being paid on behalf of MMK be re-negotiated or MMK be shifted to another suitable accommodation.
(ix) The Observer is also requested to, in presence of Rishab, Kumkum and Vinay, understand the need for number of servants/caregivers for MMK and salary thereof and fix the appropriate number of servants/caregivers and their salary. The said salary be disbursed directly by PHPL through Rishab, to the servants/caregivers and Rishab is made personally responsible for timely payment thereof.
(x) The task having been entrusted to an Observer of the Court, the findings of the Observer in this regard shall bind the parties and the liberty hereinafter granted to the parties to apply to this Court shall not extend to such matters.
(xi) The electricity bills for the accommodation in occupation of MMK shall be submitted to PHPL and be paid directly by PHPL, ensuring that there is no disconnection of electric supply.
(xii) One car equivalent to Ford / Octavia Superb, in a good running condition, shall continue to be provided by PHPL for use of MMK along with a driver. If the vehicle has any breakdown incapable of rectification in a day or two, causing inconvenience to MMK, the said car shall be replaced. Similarly, on the day when the driver so assigned to MMK is on leave or otherwise not available, alternate driver shall be provided.
(xiii) The rent as may be assessed by the Observer shall be re-
considered every three years and the requirement of number of caregivers shall be re-considered annually by the Observer, save when change of circumstances requires immediate reconsideration thereof.
(xiv) All the expenses so determined by the Observer shall be defrayed directly by the PHPL and Rishab is personally bound down to ensure timely payment/release thereof, to avoid any disruption in the care to MMK.
(xv) A sum of ₹ 1,50,000/- per month be however disbursed by the PHPL to Kumkum for kitchen and daily need items for MMK. The said amount be increased annually by 25% of last paid amount.
(xvi) In addition, the amount required to be spent for comfort or any other requirements of MMK be discussed by Rishab with Kumkum and be defrayed by PHPL and in the event of their not arriving at a consensus, decision of Observer shall bind the parties.
(xvii) In the scheme devised above, an attempt has been made to achieve disbursement directly by PHPL through Rishab, of all the regular expenses for upkeep/comfort/living of MMK, to avoid suspicions on part of Natasha and Rishab of, the entire money directed to be paid under the earlier order being not utilized for the purpose. Only the quantum of kitchen and daily need items has been fixed and to be paid to Kumkum, who today is living closest to where MMK is living. It is expected that Rishab would not like to see his father suffering in any way for lack of funds/money. Besides causing misery to MMK and to those concerned about his welfare, the same will also reflect adversely on Rishab as son. It is expected that Rishab, more than Kumkum and Vinay, will be keen to ensure that MMK continues to enjoy the living standards as he has been enjoying in the past, specially when he was himself carrying on business. The Court has reposed faith in Rishab‟s goodness for his father, who today is helpless, and hopes that Rishab will not give occasion for the Court to in future, find, Rishab having failed his father.
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