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Indian Laws - Case Laws
Showing 41 to 60 of 92 Records
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2020 (2) TMI 1411
Seeking extension of iinterim stay of the proceedings on deposit of ₹ 50 lakhs - HELD THAT:- In AUTHORIZED OFFICER, STATE BANK OF TRAVANCORE AND ANOTHER VERSUS MATHEW K.C. [2018 (2) TMI 25 - SUPREME COURT], Hon'ble Apex Court stated that writ petition against proceedings initiated against SARFAESI Act, 2002 is not maintainable, in the light of the alternate remedy provided for under the statute. It is also made clear that "in financial matters grant of ex parte interim orders can have a deleterious effect and it is not sufficient to say that the aggrieved has the remedy to move for vacating the interim order." Following the decision in K.C. Mathew's case, we are not inclined to interfere with the interim order passed by the writ court. Accordingly, interim order and extension of the same are vacated. Writ appeal is allowed.
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2020 (2) TMI 1403
Dishonor of Cheque - main and pivotal contention of the petitioner is that the account stood closed even in the year 2001 and, therefore, the cheque, alleged to have been issued by the petitioner, itself is highly questionable - HELD THAT:- In the case on hand, non-following of the procedure has crucially impacted the case of the respondent for the reason that a defence has been raised by the petitioner stating that the whole business had been sold to one Umapathy, whose friend, Kalisamy, is the friend of the respondent and who had paved the way for the cheque reaching the hands of the respondent. When such a defence has been taken by the petitioner, it is incumbent on the court below to have subjected the cheque to expert opinion, which would have conclusively proved the case either way. Neither the respondent nor the courts below thought it fit to subject the cheque to expert opinion.
In the case on hand, it cannot be brushed aside that no defence has been taken by the petitioner with regard to the cheque in question. A defence has been taken, which has not been shown to be a illusory defence by the complainant. Therefore, applying the test of preponderance of probabilities, this Court is of the considered opinion that definitely there exists a rebuttal by the petitioner with regard to the materials placed by the complainant and in such a scenario, prudence should have been exercised by subjecting the cheque to expert opinion so as to authenticate the signature on the cheque.
There is no dispute that a case u/s 138 of the Negotiable Instruments Act was pursued against the petitioner's husband, which ultimately ended in acquittal and the same has attained finality as no appeal/revision has been filed against the said order. That being the case, the amount, which is the subject matter of the present case, having been accounted for in the parallel proceedings against the petitioner's husband, and the further fact that the same judicial officer has conducted the appellate proceedings and rendered a finding in the said case, this Court is at a loss to understand as to what stood in the way of the lower appellate court to record a different finding on the same set of facts. However, this Court is not amplifying any further on the said issue, except to hold that the findings recorded in the parallel proceedings ought to have been taken into consideration while deciding the issue in the present case.
In the case on hand, the accused has raised a defence by rebutting the evidence placed by the complainant and has further pleaded for sending the disputed cheque for expert opinion, which has been rejected. In such circumstances, it is not necessary for the defence/petitioner to either place documentary or oral evidence before the court to establish his case, but suffice if a doubt is created in the complainant's case about the existence of a legally enforceable debt or liability, which the petitioner, in the present case, has successfully established. In such a backdrop of the factual materials available on record, this Court is of the considered view that the findings recorded by the trial court, as found favour with by the lower appellate court, are not based on correct interpretation of the proposition of law and, therefore, this Court has no hesitation to differ with the conclusion arrived at by the courts below.
Revision petition is allowed.
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2020 (2) TMI 1391
Grant of authorisation for laying, building, operating or expanding CGD networks - Geographical Area 51-Puducherry District - Geographical Area 61-Kanchipuram District - Geographical Area 62-Chennai & Tiruvallur Districts - relevance of the 2011 Census data in the bidding process - Appellants contend that the 2011 Census data was relevant to the bidding process was the reference to population/household figures derived from 2011 Census data in the map annexed to the Bid Document - present batch of appeals arises from two divergent opinions of the Chairperson and the Member Technical (Petroleum and Natural Gas) of the APTEL - HELD THAT:- The procedure specified in Regulation "PNGRB Act" applies to an invitation by the Board for laying, building, operating or expanding a CDG network. Regulation 5(6) requires the fulfilment of minimum eligibility criteria. For a technical bid to pass muster, the minimum eligibility criteria require the bidder to be qualified both with reference to technical and financial parameters. This is evident from Regulation 5(6) under which the Board is to scrutinise the bids of only those entities which fulfil the minimum eligibility criteria. The minimum eligibility criteria include the technical capability of the bidding entity to (i) lay and build; and (ii) operate and maintain a CGD network. Both of them are defined with reference to qualifying criteria. Besides the technical criteria, the minimum eligibility requirements under Regulation 5(6)(e) incorporate the financial ability to execute the project and to operate and maintain it in the authorised area. The financial criteria are defined with reference to the minimum net-worth of the bidding entity. The net-worth required is dependent on the population of the GA under the 2011 Census. The minimum net-worth required is specifically defined with reference to the 2011 census figures of population for the GA. The bidding entity is also required to submit a bid bond in the form of a performance bond guarantee. The quantum of the guarantee is dependent on the population of the GA.
Regulation 7 (1)(b) requires the successful bidder to achieve the target in terms of an annual work programme within eight contract years. The programme is distributed between the first and eighth years for PNG connections', CNG stations' and Inch-kilometres of steel pipelines. For PNG connections, the successful bidder must complete 10 per cent of the work programme at the end of the second year, 20 per cent at the end of the third year, 30 per cent at the end of fourth year, 40 per cent at the end of the fifth year, 60 per cent at the end of the sixth year, 80 per cent at the end of the seventh year and 100 per cent at the end of the eighth year. Under Regulation 7(3), a bidding entity with the highest composite score in terms of the criteria specified in Sub-regulation (1) of Regulation 7 is to be declared as the successful bidder - The provisions contained in the 2008 CGD Authorisation Regulations, as amended on 6 April 2018, indicate that where a specific linkage was sought with reference to the 2011 Census data, a clear and categorical provision was made to that effect. Such provisions are found in regard to the financial capability of a bidder as part of the minimum eligibility criteria in Regulation 5(6)(e) and the extent of the performance bond in Regulation 5(6)(h).
The bidder was required to carefully study the GA and the charge area before submitting the bid. In other words, bidders were on notice of the actions required to be taken to implement the Regulations. The Bid Document necessarily had to be in conformity with the CGD Authorisation Regulations. The map, at best was a compendium of the latest official record of the GA. The map did not dictate how the number of domestic PNG connections was to be calculated. There is no such indication particularly in Clause 1 of the Bid Document where the map is referenced. The mere attachment of a map to the Bid Document would not result in the imposition of conditions of eligibility or qualification. These have been provided in the Regulations which have a statutory character. The depiction of the GA in a map attached to the bid document does not over-ride the specific requirements of the bidding criteria as defined in Regulation 7.
Our analysis of the CGD Authorisation Regulations, as amended on 6 April 2018, reveals that the Regulations did not contain any stipulation determining a range of 2 to 100 per cent of the number of households under the 2011 Census as the criterion to evaluate bids. The Regulations in fact do not link the 'highness' factor of domestic PNG connections to the 2011 Census data. In Clause 4.4.1 of the Bid Document, the Board reserved to itself the right to reject any unreasonably high or low bid. In Addendum-1 to the Bid Document, the Board clarified to all prospective bidders that the evaluation of whether a bid was unreasonably low or high would be conducted on a case to case basis at the time of bid evaluation.
There is no merit in the submission that there was a breach of the principles of natural justice in calling only the bidders with the highest composite score to explain the reasonableness of their bids. None of these bidders was being called upon to revise or improve their bids. In terms of the CGD Authorisation Regulations, the bidder with the highest composite score has to be declared as the successful bidder. If despite having the highest composite score, a bidder was being considered for rejection by the Board, it was that bidder who was justifiably called to explain the reasonableness of the bid. The other bidders had no locus to participate in the process. It is a settled principle of law that the Rules of natural justice are attracted where a decision affects a right of a party against whom the decision has to be made -
In the present situation, when the Board decided to call the bidders with the highest composite score in order to allow them an opportunity to explain reasonableness of their bid, the administrative decision taken by the Board cannot be faulted as being in violation of the principles of natural justice.
We disagree with the opinion of the Chairperson and concur with the view which was taken by the Member Technical (Petroleum and Natural Gas) to dismiss the appeals - Appeal dismissed.
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2020 (2) TMI 1301
Maintainability of petition - the High Court refused to entertain the petition on the ground that it involves question of facts - refund of excess amount paid - HELD THAT:- No doubt that, normally, when a petition involves disputed questions of fact and law, the High Court would be slow in entertaining the petition under Article 226 of the Constitution of India. However, it is a rule of selfrestraint and not a hard and fast rule.
This Court in ABL International Ltd. & Anr. vs. Export Credit Guarantee Corpn. of India Ltd. & Ors. [2003 (12) TMI 584 - SUPREME COURT] has held that a writ petition as against a State or an instrumentality of a State arising out of a contractual obligation is maintainable. Merely because some disputed questions of fact arise for consideration, same cannot be a ground to refuse to entertain a writ petition in all cases as a matter of rule.
It could thus be seen, that even if there are disputed questions of fact which fall for consideration but if they do not require elaborate evidence to be adduced, the High Court is not precluded from entertaining a petition under Article 226 of the Constitution. However, such a plenary power has to be exercised by the High Court in exceptional circumstances. The High Court would be justified in exercising such a power to the exclusion of other available remedies only when it finds that the action of the State or its instrumentality is arbitrary and unreasonable and, as such, violative of Article 14 of the Constitution of India.
Refund of excess amount paid - HELD THAT:- The action of the respondents, in denying the refund of the amount of the appellant, when the respondents themselves had failed to give possession of the sand block and as a result of which the appellant could not excavate the sand, would smack of arbitrariness. In this premise, we find that the High Court was not justified in relegating the appellant to file a suit - in spite of the appellant being the highest bidder and in spite of him depositing the entire amount of auction, since the possession of the sand block was not given to him for reasons not attributable to him and he could not excavate the sand, he will be entitled to get refund of the amount deposited by him.
The impugned order of the High Court dated 6.8.2018 is set aside. The respondents are directed to refund the entire amount received from the appellant along with interest at the rate of 6% per annum from the date on which the appellant made the first request for refund till the date of realisation - appeal allowed - decided in favor of appellant.
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2020 (2) TMI 1246
Legality of Award of Tender - case of High Court is that the tender of the writ petitioner should have been treated as the lowest tender and the loss caused to the Government is roughly about 63 lakhs - HELD THAT:- At this stage, we are only dealing with the issue of interim relief.
We are not going into the merits of the case which will require detailed hearing. We, however, cannot lose sight of the fact that the tender in question was floated in the year 2018. The High Court has cancelled the tender and ordered retender - The tender has not been awarded in favour of M/s. Almighty Techserv. Fresh tendering may lead to long delay in procuring all these videoscopes which are urgently required by customs authority to scan the imported goods. If a fresh tender for supply of videoscopes is floated we are not even sure whether the Government will gain or lose in monetary terms. The public interest requires that the Government be permitted to procure the videoscopes from M/s. ASVA Power Systems India Pvt. Ltd. and the Department is permitted to do so.
Interim Relief granted.
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2020 (2) TMI 1245
Dishonor of Cheque - insufficiency of funds - rebuttal of presumptions - whether cheque for ₹ 2 lakh was drawn by the respondent in favour of the appellant for discharge of debt, whether the cheque deposited in the bank for clearance was returned unpaid on account of insufficiency of fund in the account of the respondent and whether after legal notice the respondent has not returned the amount of cheque to the appellant?
HELD THAT:- As per Section 139 of the Negotiable Instruments Act,1881, 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 for the discharge, in whole or in part, of any debt or other liability - Presumption is rebuttable, but there is nothing on record to rebut the presumption. It is not a case where the respondent has not signed the cheque. A meaningful reading of the provisions of the Act, 1881 makes it ample clear that the person signed the cheque over to a payee remains liable and he may adduce any evidence to rebut presumption. Presumption will live, exist and survive and shall end only when contrary is proved by the accused/respondent.
Finding of the trial Court is clearly against the provisions of Section 139 of the Act, 1881. When legal presumption is not rebutted no corroboration is required. When the amount was advanced on the basis of personal relation, preparation of document is not required and cheque issued by the respondent shows the liability of the respondent - On an overall assessment, it can be said that the finding of the trial Court is against the weight of the evidence and the same is not legal and contrary to the provisions of the Act, 1881. therefore, argument advanced on behalf of the respondent is not sustainable. The act of the respondent falls within mischief of Section 138 of the Act, 1881.
The respondent is convicted under Section 138 of the Act, 1881. The date of issuance of cheque is 20.9.2015. The appellant is entitled to interest 6% to the amount advanced by him - appeal allowed - decided in favor of appellant.
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2020 (2) TMI 1244
Dishonor of Cheque - Section 138 of NI Act - Submission of the learned counsel for the applicant is that complaint has been filed without making party to the company though complainant case is that cheque in question had been issued by the applicant in capacity of the director of Ravi Organics Limited. - HELD THAT:- It is evident that the notice as well as the complaint was filed against the applicant in his individual capacity. Company was not arrayed as a party neither in the notice nor in the complaint - Hon'ble Apex Court in the case of ANEETA HADA VERSUS GODFATHER TRAVELS & TOURS (P.) LTD. [2012 (5) TMI 83 - SUPREME COURT] has held that for maintaining the prosecution under Section 141 of the Act, arraigning of a company as an accused is imperative.
Application allowed.
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2020 (2) TMI 1243
Dishonor of Cheque - applicability of time limitation in making complaint as per Section 142(b) of Act, 1881 - date of 'cause of action' - dishonoured cheques were returned to complainant on 24.08.2000, notice was issued on 06.09.2000 which was received back unclaimed on 14.09.2000 but complaint was filed on 31.10.2000 - HELD THAT:- Section 138, proviso, Clause (a) of Act, 1881 is apparently satisfied. Cheques were presented to Union Bank within valid period for its collection. Notice required to be issued for demand vide proviso Clause (b) of Section 138 of Act, 1881 within 15 days of receipt of information from Bank regarding return of cheques as unpaid was also given. The date of notice is 06.09.2000. Thus, aforesaid requirement is also satisfied and notice was issued within the period prescribed in Clause (b), proviso to Section 138 of Act, 1881. Now, Clause (c) proviso to Section 138 of Act, 1881 gives 15 days' time from the date of receipt of notice by addressee to make payment - In the present case, notice returned unclaimed and received by complainant on 14.09.2000. If this date is taken to be due service of notice by accused-applicant then 15 days' time would expire on 29.09.2000.
In K. Bhaskaran Vs. Sankaran Vaidhyan Balan and Others [1999 (9) TMI 941 - SUPREME COURT], it was held that if a notice is returned by sender as unclaimed, such date would be commencing date in reckoning the period of 15 days contemplated in Clause (c) to proviso of Section 138 of Act, 1881 - In the present case, since payment could have been made upto 29.09.2000 but when it is not made, cause of action arose on 30.09.2000.
Since complaint in the present case, was filed within one month i.e. October, 2000, after excluding 30.09.2000, the day when cause of action arose, it cannot be said that complaint is exfacie barred by time provided in Section 142(b) of Act, 1881 - Applications dismissed.
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2020 (2) TMI 1160
Dishonor of cheque - insufficiency of funds - complainant claims that when the disputes between the parties are pending before the different courts, it looks highly suspicious that the complainant would issue cheque in favour of the accused persons - HELD THAT:- The matters relating to defect in the goods and deficiency in service are admittedly pending consideration before the State Consumer Dispute Redressal Commission where respondent no. 5 had claimed a compensation of ₹ 80,00,000/- with interest. About the alleged threat given to respondent no. 5 over telephone again a complaint case is pending at Sherghati which is not under challenge in the present case. To this Court, therefore, no difficulty in accepting the plea of the petitioners that this case is more by way of a grievance over the lodgement of the cheque issued by respondent no. 5 at the time of availing the financial assistance. The said cheque stood dishonoured on presentation in want of sufficient fund and apparently the respondent no. 5 while premediating a legal action and filing of a complaint case against him for the alleged dishonour of cheque brought the present complaint and got it referred to Amas Police Station by the learned A.C.J.M., Sherghati.
This Court finds from the order passed by the learned A.C.J.M., Sherghati that he has simply acted as a post office in a routine and mechanical manner by forwarding the complaint petition to the police station for institution of FIR and investigation - There was no statement in the complaint petition that the steps required to be taken under Section 154(3) Cr.P.C. was complied with by the informant. This Court would also observe that the learned A.C.J.M., Sherghati has recorded the order on the body of the petition itself which cannot be said to be a healthy practice.
Apart from the aforesaid fact that no statement was made in the complaint petition that there was a compliance of Section 154(3) Cr.P.C., this Court finds on the face of the allegations made in the FIR that a bare reading of the same would not disclose any offence - this Court finds it just and proper to exercise its extraordinary power under Article 226 of the Constitution of India to quash and cancel the First Information Report giving rise to Amas P.S. - The First Information Report is, thus, quashed and this application is allowed.
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2020 (2) TMI 1110
Dishonor of Cheque - Section 138 of the Negotiable Instruments Act, 1881 - legally enforceable debt or not - whether Ext.P6 could be regarded a valid document under law as being sufficient to authorise PW1 to prosecute the complaint on behalf of the complainant?
HELD THAT:- It is proved that Ext.P1 cheque arose out of a hire purchase transaction between the complainant and the accused. The accused does not dispute the transaction nor that he purchased a vehicle availing the loan sanctioned by the company. It has come out in evidence that, after repayment of part of the loan for sometime, there was default and consequently the vehicle was seized and sold by the company. According to the company, the entire loan arrears could not be still realised and this led to the accused issuing Ext.P1 cheque in discharge of partial liability. The veracity of prosecution case could not be successfully assailed by the accused. No rebuttal evidence was also brought in by him.
It was sought to be tendered in evidence through PW1, whose authority itself was under challenge. The conduct of the signatory to Ext.P6 in having addressed the Chief Judicial Magistrate before whom the case has been tried and sought to tender the document in evidence is not in any way appreciable. Having regard to the lack of proper conduct and also the casual manner in which the document was sought to be brought in evidence which the complainant considered to be material, the view taken by the court below in rejecting Ext.P6 as not being valid cannot be faulted. In my view also, Ext.P6 was rightly dismissed as being inadmissible.
In the interest of justice, the appellant ought to be given an opportunity to adduce the requisite evidence to prove that the signatory to the complaint has had legal authority to represent the company in the proceeding before the court below - the order of acquittal of the accused dated 31.01.2007 is set aside and the matter is remitted back to the court below to give an opportunity to the complainant to prove that it was properly represented by the signatory to the complaint - Appeal allowed by way of remand.
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2020 (2) TMI 1062
Offence of gambling and betting - online game known as “Dream 11” - petitioner has submitted that public in general are cheated in the name of “Dream 11” game and people become culprit of gambling and betting without having the proper knowledge of law - HELD THAT:- The “Dream 11” game does not involve any commission of offence of gambling and betting.
Petition dismissed.
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2020 (2) TMI 1023
Dishonor of Cheque - acquittal of accused - rebuttal of presumption - burden to prove - Section 138 of the Negotiable Instruments Act, 1881 - HELD THAT:- In the present case, the trial court recorded finding that though the appellant deposed that the amount is shown in income tax return and account of Prabha Sales but the said income tax and account of Prabhas Sales was not produced, therefore, version of the appellant is not corroborated. In view of this court, the finding arrived at by the trial court is clearly against the legal aspect of the matter. When respondent has not denied by adducing evidence of himself that he has not borrowed money from the appellant, presumption under Section 139 of the Act, 1881 will survive and remain exist and corroboration to the statement of the appellant is not required.
From the evidence of the appellant, it is clearly established that respondent had earlier taken amount of ₹ 3,14,000/- from him which was returned by him. Appellant is running business of of railway machinery and advancing sum to respondent in earlier occasions which shows that he is capable to advance money to the respondent, therefore, it is not a case where source of income of the appellant is not established. The amount was advanced on the basis of personal relation, therefore, preparation of other documents was not required under the law and cheque issued by the respondent is the best document for showing liability of the respondent.
On an overall assessment, it can be said that the finding of the trial court is against weight of the evidence and same is perverse - Further, finding arrived at by the trial court is not legal and contrary to the provisions of the Act, 1881.
Respondent is convicted under Section 138 of the Negotiable Instruments Act, 1881. The date of issuance of cheque is 10-7-2015. Appellant is entitled to interest @ 6% per annum on the amount advanced by him - appeal allowed.
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2020 (2) TMI 961
Dishonor of cheque - section 138 of NI Act - Breach of Section 269SS of the Act, 1961 - respondent had send a notice which was presumed served upon the present applicant but payment was not made to the respondent - HELD THAT:- Breach of Section 269SS of the Act, 1961 provides that the penalty to which the person would be subjected to under Section 271D of the Act, 1961 - Section 271D does not provide that such a transaction would be null and void. There is no provision under the Act, 1881 which would vitiate the entire loan transaction for dealing with cash amount above ₹20,000/-. The culpability of offence under Section 138 of the Act, 1881 will not freeze for the reason of violation of Section 269SS of the Act, 1961 and nothing prevents the operation of the statutory presumption under Section 118 and Section 139 of the Act, 1881. The applicant could not show any statutory provisions under the Act, 1961 or any other law which stipulates that a loan transaction which is in violation of Section 269SS of the Act, 1961, would be void. Violation of Section 269SS of the Act, 1961 would not render the loan as not recoverable through a legal process. The payer of the money in cash in violation of Section 269SS of the Act, 1961 would, therefore, be entitled to enforce an agreement of advancement of money in cash beyond ₹20,000/-.
Under Section 139 of the Act, 1881, there is a presumption in favour of the holder. Section 139 of the Act, 1881, stipulates 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 for the discharge, in whole or in part, of any debt or other liability. It is also well settled that at the time of the consideration of the case for summoning, the merit of the case cannot be tested - In the case at hand, the respondent-complainant has proved prima facie the basic ingredients of the offence under Section 138 of the Act, 1881.
It is wholly impermissible for this Court to enter into the factual arena to adjudge the correctness of the allegations in the complaint. The Court would not also examine the genuineness of the allegations made in the complaint, since the Court does not function as a Court of Appeal or Revision while exercising its jurisdiction under Section 482 of the Code of Criminal Procedure, 1973.
The application has no force - The application, filed under Section 482 of the Code of Criminal Procedure, 1973, is dismissed.
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2020 (2) TMI 899
Maintainability of Complaint - territorial jurisdiction - it is submitted by the applicant that subsequently the legislature has amended Section 142 of Negotiable Instruments Act and has inserted Section 142-A of Negotiable Instruments Act and, therefore, in the light of the amended provisions of law, complaint lodged by the applicant before the Court of Judicial Magistrate First Class, Lahar, District Bhind is maintainable.
HELD THAT:- The Supreme Court in the case of Dashrath Rupsing Rathod [2014 (8) TMI 417 - SUPREME COURT] had held that the Court where the cheque was presented has no territorial jurisdiction to entertain the complaint under Section 138 of the Negotiable Instruments Act. Thereafter, an amendment in Section 142 of Negotiable Instruments Act was incorporated and Section 142-A of Negotiable Instruments Act - From the perusal of amended Section 142(2) of Negotiable Instruments Act, it is clear that the place where a cheque was delivered through an account, the Court having local jurisdiction over such area shall also have the territorial jurisdiction to entertain the complaint.
Thus, in view of the amended provisions of Section 142 of Negotiable Instruments Act, the complaint filed by the applicant before the Court of Judicial Magistrate First Class, Lahar, District Bhind is within the territorial jurisdiction of the said Court - the order passed by Judicial Magistrate First Class, Lahar, District Bhind is hereby set aside - The Trial Court is directed to restart the proceedings after giving fresh notices to the respondent because it appears that the respondent remained unserved in the present proceeding - application disposed off.
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2020 (2) TMI 860
Interpretation of statute - Sections 3(1)(b), 3(2) and subsections 5(a) and (b) of the Bombay Entertainments Duty Act, 1923 - rate of entertainment tax payable by the respondents - admission and entertainment to the amusement park - High Court held that entertainment duty to be levied for the amusement park is 50% of 15% i.e. 7.5% under Section 3(2) of the Act, therefore, in terms of Section 3(5)(a) and (b) of the Act, the entertainment duty is 50% of 7.5% i.e. 3.75%. The High Court held that such interpretation is on the basis of a cumulative reading of the provisions of the Act.
HELD THAT:- There are no merit in the argument raised by learned counsel for the writ petitioners. In respect of first three years falling in Section 3(5)(a) of the Act, there is no dispute, as no duty is payable. The controversy revolves around the levy of entertainment duty for the fourth and fifth year and subsequently from the sixth year onwards. Sub-clause (ii) of Section 3(5)(a) contemplates that duty @50% under clause (b) of sub-section (1) or, as the case may be, sub-section (2) of Section 3 would be payable. In respect of the first part of sub-clause (ii) of Section 3(5)(a) of the Act, there can possibly be no dispute as the entertainment duty is 50% of 15% leviable under Section 3(1)(b) of the Act.
The argument that when a lumpsum amount is paid as a right of admission for all rides and games, then it becomes admission to series of entertainment, is not tenable. The writ petitioners issue one ticket including one or more rides or games situated in one compound. It is not the case of the writ petitioners that for every ride or game, it is charging separately - The admission to entertainment in terms of Section 2(d) of the Act includes all rides and games which are provided by the service provider.
Once an admission ticket is granted, it is not in terms of Section 3(2) of the Act but only in terms of Section 3(1)(b) of the Act. Section 3(2) of the Act has no applicability for a visitor to an amusement park who does not fall in any of the four categories mentioned in Section 3(2) of the Act. Since, the activities undertaken by the writ petitioners are not failing part of Section 3(2) of the Act, therefore, they are not entitled to rebate of 50% provided to specified category of persons in Section 3(2) of the Act - Since Section 3(2) is not applicable to all amusement parks for all other activities, therefore, the entertainment duty in terms of Section 3(5)(a) of the Act alone would be leviable. The duty under Section 3(2) of the Act would be leviable only in respect of specified categories mentioned therein.
The judgment of the High Court that in terms of Section 3(5)(a) of the Act, the entertainment duty is 50% of the duty payable under Section 3(2) of the Act, cannot be agreed upon - appeal allowed - decided in favor of appellant.
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2020 (2) TMI 855
Charging higher for SMS - participants in the HSHS contest were required to pay ₹ 2.40 per SMS message to Airtel, which was higher than the normal rate for SMSes - Whether an unfair trade practice has been committed by the Appellants in the conduct of the HSHS contest, in terms of Section 2(1)(r)(3) of the 1986 Act?
HELD THAT:- The National Commission had no basis to hold that the Appellants had admitted that the prize money for the HSHS contest was distributed out of the revenue collected from the SMSes sent in pursuance of the contest. It is true that the Appellants had not specifically denied that the prize money was paid out of the increased SMS charges. However, they had clarified in their submissions that Airtel was merely a sponsor/advertiser of the program, and the commercial arrangement between the parties was that Airtel would pay sponsorship charges, whereas Star India would be independently liable for paying the prize money out of its pocket regardless of the revenue earned by Airtel - apart from the aforementioned facts, there is no other cogent material on record upon which the National Commission could have placed reliance to render the finding of ‘unfair trade practice’ under Section 2(1)(r)(3) (a) of the 1986 Act.
There exists a servicescum-sponsorship agreement between the Appellants, which contains the specific details of the commercial arrangement between them. They did not produce the same before the National Commission, claiming that the said agreement contained a confidentiality clause, and could only be produced in accordance with law if required. The Appellants’ case is that they would have offered to produce the agreement if the National Commission had given a specific direction to that effect. However, no such direction was rendered at any point during the proceedings before the National Commission. Even the complainant did not, throughout the course of the proceedings, seek a direction to the Appellants to produce the servicescum-sponsorship agreement.
Thus, it is evident that Star India was liable to pay the prize money irrespective of the profits earned by Airtel. It is needless to say that the sponsorship money paid by Airtel would come from various sources of revenue, which includes the money earned from the tariff rates for the HSHS contest. Similarly, Star India may have had many sources of revenue from which the prize money could have been paid. This is a part and parcel of the ordinary business dealings of the Appellants, and the complainant has failed to establish any direct linkage between the increased SMS tariff rates and the prize money so as to show that the prize money was deceptively recovered in the guise of increased SMS rates charged to the participants.
The complainant has clearly failed to discharge the burden to prove that the prize money was paid out of SMS revenue, and its averments on this aspect appear to be based on pure conjecture and surmise. There is no basis to conclude that the prize money for the HSHS contest was paid directly out of the SMS revenue earned by Airtel, or that Airtel and Star India had colluded to increase the SMS rates so as to finance the prize money and share the SMS revenue, and the finding of the commission of an “unfair trade practice” rendered by the National Commission on this basis is liable to be set aside.
The finding of the commission of an unfair trade practice under Section 2(1)(r)(3)(a) in the impugned judgement is bad in law - Appeal allowed - decided in favor of appellant.
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2020 (2) TMI 818
Maintainability of SLP - HELD THAT:- The issues though relatable to Section 9A of the Industrial Disputes Act, 1947 would have a vital bearing on payments to be made ultimately to the petitioner as a pilot and are pending in this Court.
It is open for Air India to take this up as a defence in the application that is filed by the petitioner before the NCLT. The NCLT order, therefore, is set aside and the NCLT will now go into the Section 9 application filed by the petitioner afresh, after considering objections by the respondent.
SLP disposed off.
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2020 (2) TMI 806
Validity of Arbitral Award - waiver of penal interest on land rent and interest - sub-lease of project land - termination of various agreements - Section 37 of the Arbitration and Conciliation Act, 1996 - HELD THAT:- With respect to the amount awarded towards Interest and Penal Interest under the award, the same has been modified by consent of parties, as a prudent commercial decision - The Appellants were directed to file an Affidavit of Undertaking before this Court, with respect to the obligations to be discharged as per the Consent Terms set out hereinabove.
In the event of any default in payment of the amounts by Appellants, the entire amount awarded as per the award dated 20.01.2015, would become enforceable. However, prior to enforcement, a window of 2 months would be granted to the Appellants to make provision for compliance. On the expiry of the aforesaid period of 2 months, the entire decree would become executable forthwith.
M/s Good Living Infrastructure Pvt. Ltd. is bound by the unconditional undertaking submitted on Affidavit before this Court. Any default by M/s Good Living Infrastructure Pvt. Ltd. would be treated as a breach of the undertaking submitted to this Court.
Appeal disposed off.
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2020 (2) TMI 805
Dishonor of Cheque - insufficiency of funds - section 138 of NI Act - invocation of jurisdiction under Section 156(3) of Cr.P.C. - HELD THAT:- The provisions of Section 138 of N.I. Act may be attracted, because the cheque, which was given by the petitioner-accused no.1 to opposite party no.2-complainant, was returned as there was insufficient fund. In addition to the same, if on the basis of the factual matrix prima facie it is satisfied that the petitioner-accused no.1 had tried to deceive opposite party no.2-complainant in the entire transaction, then in that case criminal proceeding can also be initiated against the accused persons.
In the present case, this is not proper stage where the proceeding so initiated has to be quashed either in exercise of power under Section 226 of the Constitution of India or even under Section 482 Cr.P.C. Rather, the Magistrate is well justified in directing the police authority to register the complaint petition as FIR under Section 156(3) Cr.P.C. and cause investigation into the matter.
It is made clear that an accusation of commission of offence under Section 138 of N.I. Act cannot preclude the complainant to initiate a proceedings against accused persons under Sections 418, 420 read with Section 34 of IPC if ingredients of such offence are attracted. As such, the case under the N.I. Act can only be initiated by filing complaint, but in a case under the IPC, such a condition is not necessary. But in the case at hand when opposite party no.2-complainant lodged an FIR in the concerned police station, the same was not registered, therefore, there was no other way open to opposite party no.2-complainant than to approach the Magistrate by filing complaint case, who, in turn directed the police to register the complaint as FIR under Section 156(3) of Cr.P.C. and conduct investigation - impugned order is correct and is upheld.
Petition dismissed.
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2020 (2) TMI 804
Maintainability of FIR registered - disproportionate assets or not - excess value of property shown - contention of the petitioners is that the sale price realized is One Crore, there is no justification to reduce the same by a sum of ₹ 27.50 lakhs - HELD THAT:- This Court concludes that the F.I.R. is registered without application of mind by the respondents, in a mechanical and whimsical manner. It is evident that the respondents did not provide any prima facie material to sustain a charge under Section 109 of I.P.C., and Section 13 (1) (e) of the Prevention of Corruption Act and the F.I.R. is unsustainable on its very face even without considering the evidence of the petitioners. By omission to conduct a preliminary enquiry, the respondents have simply acted upon the unverified Source Information contrary to the mandatory rules of the C.B.I. Manual. On this F.I.R., if any investigation is now proceeded with, it will be a futile, meaningless and vexatious exercise.
This Court finds that the F.I.R. is liable to be quashed and is hereby quashed - Petition allowed - decided in favor of petitioner.
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