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Indian Laws - Case Laws
Showing 61 to 80 of 92 Records
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2020 (2) TMI 803
Permission for withdrawal of the writ petition - HELD THAT:- As prayed, writ petition is dismissed as withdrawn.
Petition dismissed.
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2020 (2) TMI 802
Permission for withdrawal of the writ petition - HELD THAT:- As prayed, writ petition is dismissed as withdrawn.
Petition dismissed.
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2020 (2) TMI 801
Permission for withdrawal of petition - case of petitioner is that inadvertently by mistake he has not mentioned all the relevant material facts in this writ petition, particularly with respect to the earlier writ petitions filed by the petitioner on the similar facts and circumstances - HELD THAT:- The writ petition is dismissed as withdrawn with with liberty to pursue the pending writ petition.
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2020 (2) TMI 800
Permission for withdrawal of petition - case of petitioner is that inadvertently by mistake he has not mentioned all the relevant material facts in this writ petition, particularly with respect to the earlier writ petitions filed by the petitioner on the similar facts and circumstances - HELD THAT:- The writ petition is dismissed as withdrawn with with liberty to pursue the pending writ petition.
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2020 (2) TMI 799
Maintainability of petition - petitioner has not disclosed the earlier writ petition filed by him - It is also submitted that necessary parties such as Lucknow Development Authority and U.P. Avas Evam Vikas Parishad have not been impleaded in the writ petition - HELD THAT:- The grievance of the petitioner appears to be against Lucknow Development Authority as well as Uttar Pradesh Awas Evam Vikas Parishad who have not been impleaded in the writ petition. Moreover, the petitioner has not disclosed his credentials as well as the cause of action accrued to him to maintain the writ petition.
The writ petition is not maintainable and is dismissed.
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2020 (2) TMI 744
Dishonor of Cheque - non-payment against one dishonoured cheque for the amount of ₹ 65,00,000/- issued by petitioner in favour of the respondent company - section 138 Negotiable Instruments Act 1881 read with Section 420 IPC - HELD THAT:- Upon analyzing the provisions of the NI Act, it is clear that Section 138 of the Act spells out the ingredients of the offence as well as the conditions required to be fulfilled before initiating the prosecution - These ingredients and conditions are to be satisfied mainly on the basis of documentary evidence, keeping in mind the presumptions under Sections 118 and 139 of the NI Act and Section 27 of the General Clauses Act, 1897 as well as the provisions of Section 146 of the Act.
This Court does not find any material on record which can be stated to be of sterling and impeccable quality warranting invocation of the jurisdiction of this Court under Section 482 Cr.PC at this stage. More so, the defence as raised by the petitioners in the petition requires evidence, which cannot be appreciated, evaluated or adjudged in the proceedings under Section 482 of Cr.PC and the same can only be proved in the Court of law.
There are no no flaw or infirmity in the proceedings pending before the Trial Court. However, the Trial Court shall certainly consider and deal with the contentions and the defence of the petitioner in accordance with law - petition dismissed - decided against petitioner.
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2020 (2) TMI 679
Whether the learned Arbitrator had appropriately considered the matter in its correct perspective and in that light whether the Award of the amount at the premium of 93.12% would be justified and the manner of consideration by the learned Arbitrator without assigning reasons for his Award is sustainable?
HELD THAT:- Having taken note of Clause 39 of the Contract Agreement, it cannot be considered as a statutory limitation or bar for the claim in all circumstances. The said Clause no doubt prescribes a method by which the claim is to be put forth in the statement every month. The said requirement will have to be construed as being put in the agreement so as to ensure that the additional work has actually been done, the claim is put forth along with details so that baseless claim is not made at a distant point in time when it will not be possible to determine. Though the Clause also indicates that if such claim is not made, it would amount to waiver, in a circumstance where the claim is ultimately put forth in the forum where an adjudication is made and based on the material if the adjudicating authority is satisfied that the actual work had been done and the contractor being entitled to the extra amount spent by him to carry out the work in an appropriate manner, it would not be just and proper to deny such claim only on the ground that it had not been indicated strictly in the manner as provided in the contract specially keeping in view the nature of work undertaken. To that limited extent a perusal of the Award passed by the learned Arbitrator would indicate that the learned Arbitrator had taken into consideration the letter dated 14.11.1986 wherein the identification of soil which was agreed to.
The matter in a normal circumstance ought to have been remitted to the learned Arbitrator to redo the proceedings afresh in accordance with law. Such course ought to have been adopted by us as well. We had proceeded to examine the matter with regard to the validity of the claim keeping in view the time lapse and since the validity of the claim was to be taken note at the appropriate premium if not at the percentage of premium at 93.12% as determined by the learned Arbitrator - In view of our conclusion relating to the claim being sustainable to the extent as indicated by us above at the premium of 35.02%, under Claim Nos.2, 3, and 12 the calculation based on the extent and measurement of the extra items is an exercise which cannot be undertaken herein and as such the opposite party keeping in view the directions herein shall work out the actual amount payable in respect of the extent, measurement, quantity and price based on which the claim is made.
The claimant is entitled to the claim for extra items as put forth under Claim Nos. 2, 3, 8 and 12 by working out the difference of cost on the tender premium at 35.02%. On arriving at the quantum of the Page 24 of 26 amount, the same shall be payable with interest at 12% per annum in the manner as ordered by the First Appellate Court. The claim No.1 ordered by the High Court is sustained.
Appeal allowed.
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2020 (2) TMI 678
Stamping of Lease deeds - it was the basic contention of the appellants, that the lease deed dated 12.3.1997 being insufficiently stamped had to be mandatorily impounded under Section 33 of the Karnataka Stamp Act, 1957 - invocation of power under Section 11(6) of the Arbitration Act - HELD THAT:- Having regard to Section 35 of the Stamp Act, unless the stamp duty and penalty due in respect of the instrument is paid, the court cannot act upon the instrument, which means that it cannot act upon the arbitration agreement also which is part of the instrument. Section 35 of the Stamp Act is distinct and different from Section 49 of the Registration Act in regard to an unregistered document. Section 35 of the Stamp Act, does not contain a proviso like Section 49 of the Registration Act enabling the instrument to be used to establish a collateral transaction.
The Scheme for Appointment of Arbitrators by the Chief Justice of Gauhati High Court, 1996 requires an application under Section 11 of the Act to be accompanied by the original arbitration agreement or a duly certified copy thereof. In fact, such a requirement is found in the scheme/rules of almost all the High Courts. If what is produced is a certified copy of the agreement/contract/instrument containing the arbitration clause, it should disclose the stamp duty that has been paid on the original - If the court comes to the conclusion that the instrument is not duly stamped, it has to impound the document and deal with it as per Section 38 of the Stamp Act.
A perusal of the clauses of the lease deed dated 12.3.1997 would also reveal, that the lessee had undertaken all the responsibility of obtaining vacant possession of Schedule ‘B’ property and to secure vacant possession by ejecting the unauthorised occupants. Responsibility of sanctioning the building plans was also undertaken by the respondents. It would further reveal, that it was also agreed between the parties, that in the event of any of the tenants approaching a court of law, such period of litigation shall not in any manner affect the agreed tenure of the lease deed of 38 years - the submission made by Shri Balaji Srinivasan, learned counsel for the respondents, that the agreement was to be registered only after all the tenants were evicted and the building plans were sanctioned is not supported by any of the terms in the lease deed dated 12.3.1997.
The High Court has totally erred in relying on the lease deed dated 12.3.1997, which was found to be insufficiently stamped and brushing aside the report of the Registrar (Judicial), when the respondents had failed to pay the insufficient stamp duty and penalty as determined by the Registrar (Judicial) of the High Court of Karnataka - Appeal allowed - decided in favor of appellant.
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2020 (2) TMI 677
Dishonor of Cheque - insufficiency of funds - settlement of dispute between the parties - section 138 of NI Act - HELD THAT:- It appears that the dispute is settled amicably between the parties and respondent no.2-original complainant has received amount of ₹ 2,00,000/- from the accused-applicant as full and final settlement and no other amount remains due from the applicant.
Reliance placed in the case of VINAY DEVANNA NAYAK VERSUS RYOT SEVA SAHAKARI BANK LTD [2007 (12) TMI 444 - SUPREME COURT] where it was held that taking into consideration even the provision of Section 147 and the primary object underlying Section 138, in our judgment, there is no reason to refuse compromise between the parties.
Applying the ratio of the aforesaid decision of the Apex Court to the facts of the present case as well as considering the settlement arrived at between the parties, the revision application is required to be allowed and the parties be permitted to compound the offence - revision application allowed.
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2020 (2) TMI 676
Dishonor of Cheque - section 138 of NI Act - enforceable debt or not - pre-summoning evidence - Section 251 of the Cr.P.C. - HELD THAT:- In the present case, there is no material to conclude that the respondent was carrying on the business of advancing loans. Merely because the respondent had lent money to three or four persons, did not lead to the inference that the respondent had been carrying out the activity of money lending as a business. The respondent had also expressly denied that he had given any loan on interest to public persons - The contention that the debt owed by the petitioner was rendered unenforceable by virtue of the provisions of the Income Tax Act, 1961 is also unmerited.
Section 269SS of the Income Tax Act, 1961 prohibits making of any payment in cash above a sum of ₹20,000/-. Thus, any person violating the same would attract imposition of penalties under the said Act. However, the same does not render the said debt un-enforceable or precludes the lender from recovering the same - In the present case, the petitioner had clearly admitted to receiving the loan and, therefore, it could not be held that the petitioner had rebutted the presumption that the cheque had been issued in discharge of an enforceable debt.
Petition dismissed.
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2020 (2) TMI 675
Dishonor of Cheque - alleged offences punishable under Section 420/406 of the Indian Penal Code - It is the specific contention of the petitioners that the continuance of the criminal proceedings pending against the present petitioners would be an abuse of the process of the Court - HELD THAT:- Initiation of proceedings under Section 138 of the Negotiable Instruments Act, against the complainant prior to filing of the complaint against the present petitioners/accused persons does not ipso facto prove or establish that the subsequent proceedings is a counterblast to the earlier proceedings initiated under Section 138 of the Negotiable Instruments Act. Each case has to be judged on its own merit. In the present case, the opposite party/complainant has described how the complainant company was cheated and suffered loss. The essential elements of the alleged offences under Sections 420/406 of the Indian Penal Code are prima facie present in the allegations contained in the petition of complaint - While dealing with an application under Section 482 of the Code of Criminal Procedure, the High Courts should not assume the jurisdiction and function of the Trial Court and delve deep into the disputed facts.
It cannot be denied that the offence of cheating may take place in the course of commercial and civil transaction. Nature of transaction and the intention of the person against whom the allegation is made that he induced the victim/complainant are to be construed to see whether there was alleged commission of the offence of the cheating or not. In the instant case, there are specific averments in the petition of complaint which prima facie indicate that the commission of the alleged offences. As such the contention of the Learned Advocate for the petitioners that the averments of the petition of complaint reveal the factum of loan transaction which is purely civil in nature cannot be accepted at this stage.
Territorial Jurisdiction - HELD THAT:- It appears that the petitioners are residing outside the territorial jurisdiction of the Learned Magistrate who issued the process. It is true that at the time of issuance of process under Section 204 of the Code of Criminal Procedure, Learned Magistrate did not make necessary inquiry as contained in sub-Section (1) of Section 202 of the Code of Criminal Procedure. The petitioners raised that ground at the earliest by way of preferring the present revisional application - Non-compliance with the mandatory provisions as contained in Section 202(1) of the Code of Criminal Procedure cannot be considered to be a ground for quashing the proceedings pending against the petitioners. However, at the same time it cannot be ignored that the process under Section 204 Cr.P.C. was issued without taking care of that provisions.
The criminal revisional application is disposed of.
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2020 (2) TMI 674
Exemption from payment of tax under Section 83(1)(e) of the Tamil Nadu District Municipalities Act, 1920 - 1st petitioner being a Medical Foundation (Public Charitable Trust) collected amounts for treatment and cost of medicines from the patients/public - HELD THAT:- By an order dated 22.03.2013, the court had quashed the demand and remitted back the case to the 2nd respondent therein to consider the claim of the petitioner whether the petitioner is indeed eligible for exemption or not. Since the Income Tax Department has given certificate post facto approval on 28.02.2016, eligibility for exemption would require fresh consideration on facts. Therefore, impugned order is set aside and the case is remitted back to the respondents.
Petition allowed by way of remand.
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2020 (2) TMI 629
Dishonor of Cheque - acquittal of accused - Section 138 of the Negotiable Instruments Act - rebuttal of presumption - HELD THAT:- Once the accused has admitted the issuance of cheque which bears his signature, there is presumption that there exists a legally enforceable debt or liability under Section 139 of the N.I. Act. However, such a presumption is rebuttable in nature and the accused is required to lead the evidence to rebut such presumption. The accused was required to lead evidence that the entire amount due and payable to the complainant was paid.
The accused has admitted the issuance of the cheques and his signature on the cheque and that the cheque in question was issued for the second time, after the earlier cheques were dishonoured and that even according to the accused some amount was due and payable, there is a presumption under Section 139 of the N.I. Act that there exists a legally enforceable debt or liability. Of course such presumption is rebuttable in nature. However, to rebut the presumption the accused was required to lead the evidence that full amount due and payable to the complainant has been paid - In the present case, no such evidence has been led by the accused. The story put forward by the accused that the cheques were given by way of security is not believable in absence of further evidence to rebut the presumption and more particularly the cheque in question was issued for the second time, after the earlier cheques were dishonoured. Therefore, both the courts below have materially erred in not properly appreciating and considering the presumption in favour of the complainant that there exists legally enforceable debt or liability as per Section 139 of the N.I. Act.
The impugned judgment and order passed by the High Court and that of the Metropolitan Magistrate acquitting the original accused respondents herein for the offence under Section 138 of the N.I. Act cannot be sustained - Appeal allowed - decided in favor of appellant.
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2020 (2) TMI 628
Arbitral Award - Validity of Final awards made by a sole arbitrator in London under the London Court of International Arbitration Rules (2014) (LCIA Rules) were held to be enforceable against the Appellants in India - HELD THAT:- We cannot help but be left with a feeling that the Appellants are indulging in a speculative litigation with the fond hope that by flinging mud on a foreign arbitral award, some of the mud so flung would stick. We have no doubt whatsoever that all the pleas taken by the Appellants are, in reality, pleas going to the unfairness of the conclusions reached by the award, which is plainly a foray into the merits of the matter, and which is plainly proscribed by Section 48 of the Arbitration Act read with the New York Convention.
Given the fact that our jurisdiction under Article 136 of the Constitution is itself limited, and given the fact that this Court’s time has unnecessarily been taken by a case which has already been dealt with by four exhaustive awards on merits and also by the impugned judgment of the Bombay High Court, we dismiss these appeals with costs of INR 50 lakhs, to be paid by the Appellant to Respondent No.1 within 4 weeks from today - Appeal dismissed.
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2020 (2) TMI 627
Validity of detention order - COFEPOSA Act - Smuggling of Gold - it is submitted that there is no nexus or live link between the alleged illegal activity and purported claim of the Detaining Authority as the alleged illegal activity had been committed between January, 2014 and July, 2015 while the impugned order had been passed on 2nd August, 2019 - HELD THAT:- This Court finds that the impugned detention order is based upon an alleged admission by the petitioner that he had financed smuggling of 185 Kgs. of gold valued at ₹ 52.35 crores between January, 2014 and July, 2015.
Reliance can be placed in the case of UNION OF INDIA, JOINT SECRETARY (COFEPOSA) , GOVT. OF INDIA, MINISTRY OF FINANCE VERSUS DIMPLE HAPPY DHAKAD [2019 (8) TMI 139 - SUPREME COURT] where it was held that the ‘satisfaction’ of the detaining authority is ‘subjective’ in nature and the Court cannot interfere with the order of detention by substituting its opinion for the subjective satisfaction of the Detaining Authority - this Court is of the view that the order of the Apex Court applies to the present case on all fours
The present writ petition is allowed and the petitioner-detenue is directed to be released forthwith, if not wanted in any other case.
Application disposed off.
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2020 (2) TMI 586
Compliance with paragraph 6.4 of the Master Circular dated 1st July, 2015 issued by the Reserve Bank of India (RBI) - default in repayment of debt - restructuring of petitioner's debt - validity of retrospective declaration of the petitioner to be in default and an NPA with effect from 1st July, 2011.
HELD THAT:- The petitioner’s prayer is that this Circular should be complied with insofar as it lays down the Prudential Norms on Income Recognition Assets Classification and Provisioning pertaining to advances. Now, this part of the Circular would require a closer look. The said aspect is found in Part A, 3, 4 and 5. That says, an asset can be termed as Non Performing Asset, if it satisfies the criteria laid down in the definition of this expression. Firstly, this part says that in line with the international practices and as per the recommendations made by the Committee on the Financial System, the Reserve Bank of India has introduced, in a phased manner, the norms styled as prudential norms for income recognition, asset classification and provisioning for the advances portfolio of the banks. Pertinently, Mr.Kamdar does not point out that it is to move towards greater consistency and transparency in the published accounts that the policy has been brought into effect. It is clarified that this policy should be objective and based on record of recovery rather than on any subjective considerations. Likewise, the classification of assets of banks has to be done on the basis of objective criteria, which would ensure a uniform and consistent application of the norms. Importantly, the provisioning should be made on the basis of the classification of assets based on the period for which the asset has remained non-performing and the availability of security and the realisable value thereof.
The financial assets which can be sold to the Securitisation Company and Reconstruction Company by any bank or financial institution are non-performing assets, including a non-performing bond/debenture, a Standard Asset where the asset is under consortium/multiple banking arrangements and atleast 75% by value of the asset is classified as non-performing asset in the books of other banks/financial institutions and atleast 75% by value of the banks/financial institutions who are under the consortium/multiple banking arrangements agree to the sale of the asset. Secondly, a procedure has to be followed and in the case of consortium/multiple banking arrangements, if 75% (by value) of the banks/financial institutions decide to accept the offer, the remaining banks/financial institutions will be obligated to accept the offer. However, this is preceded by an assessment of each bank/ financial institution of the value offered by the Securitisation Company/Reconstruction Company for the financial asset and decide whether to accept or reject the offer. Further, there cannot be a transfer to this Securitisation Company/ Reconstruction Company at a contingent price, whereby, in the event of shortfall in the realization by the Securitisation Company/Reconstruction Company, the banks/financial institutions would have to bear a part of the shortfall. Finally, if the auction process is used for sale of non-performing assets to Securitisation Companies/ Reconstruction Companies, that should be more transparent and complying with what is laid down in para 6.4 clause (d)(iv).
It is the first respondent, which is accusing the petitioner of breach and violation of the packages and the conditions thereof. The bank accuses the petitioner of not fulfilling its commitment or the essential conditions under the packages. This may be or may not be correct, but it is definitely a version contrary to that of the petitioner. In such circumstances, how arbitrariness, much less, mala fides, can be attributed to a public financial institution without resolution of the factual disputes, is unclear to us. In other words, this is not an undisputed factual position, but a highly disputed one. It is in these circumstances that we are disinclined to grant any relief.
It may be that the seventh respondent has addressed a letter to the petitioner, copy of which is at page 322 of the paper-book, and it claims that it is entitled to recover from the borrowers or guarantors the total dues of the banks alongwith the interest at contractual rate. It makes reference to certain banks mentioned in Schedule-1. This may not be inclusive of all the debts and dues to even Canara Bank. Therefore, this communication may say that the assignment agreements are with Union Bank of India, Andhra Bank, ICICI Bank Limited, Axis Bank, Bank of Baroda, Bank of India, Dena Bank, Indian Overseas Bank, Punjab National Bank, State Bank of India, Oriental Bank of Commerce and Central Bank of India, still, the petitioner has impleaded Canara Bank, Corporation Bank, Indian Bank, Vijaya Bank, IDBI Bank and Life Insurance Corporation of India Limited, all of which are not a party to this agreement. In these circumstances, marking of the documents in favour of these entities would not suffice.
Petition dismissed.
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2020 (2) TMI 572
Anticipatory bail in connection with Complaint Case being Economic Offence (Complaint) Case registered under section 276B of the Income Tax Act, 1961 - HELD THAT:- As a fit case where the above named petitioner be given the privilege of anticipatory bail. Hence, in the event of his arrest or surrender within a period of four weeks from the date of this order, he shall be released on bail on furnishing bail bond of ₹ 25,000/- (Rupees Twenty Five Thousand) with two sureties of the like amount each to the satisfaction of learned Special Judge (Economic Offences), Ranchi, in connection with Complaint Case being Economic Offence (Complaint) Case No. 9 of 2018 with the condition that the petitioner will cooperate with the trial of the case and other conditions laid down under section 438 (2) Cr. P.C.
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2020 (2) TMI 539
Dishonor of Cheque - Maintainability of complaint - primordial contention of the petitioner is that the complainant Firm is an unregistered Firm, and under Section 69(2) of the Indian Partnership Act, 1932, the unregistered Firm cannot maintain a complaint - HELD THAT:- Admittedly, both the complaints have been filed through a power of attorney, by name G.Veeraputhiran, who was the Internal Auditor of the complainant Firms. Now, the contention of the petitioner is that, the power of attorney did not spell out whether he has any personal knowledge about the transaction between the parties and in the absence of any personal knowledge, he is not competent to file the complaint - It is a settled law that a power of attorney holder can file a complaint, appear and depose for the purpose of issuance of process for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881. The only restriction is that the power of attorney should have a personal knowledge about the transaction between the parties, and in the absence of any personal knowledge, he cannot depose.
The proceedings initiated under Section 14 of the Code noway affects the continuation of the criminal proceedings under Section 138 of the Negotiable Instruments Act, 1881.
Petition dismissed - decided against petitioner.
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2020 (2) TMI 471
Payment of death-cum-retiral dues of the deceased employee - being the minor children from the first wife - apportionment of other retiral benefits - HELD THAT:- The writ petitions stand disposed off with a direction to the authorities concerned to pay 50% of family pension of the deceased employee to the petitioners, through Mr. Umakant Tiwary, who is their maternal grandfather. The rest 50% shall be paid to the petitioner. Payment of family pension would be with up-to-date arrears. Similarly, 1/3rd of the other death-cum-retiral benefits would be paid to the petitioners through Mr. Umakant Tiwary, their maternal grandfather. The remaining 2/3rd amount shall be paid to the petitioner for herself and her three children.
The Court has been assured by learned counsel for the State that all formalities required to be performed shall be got done by the authorities and at best the petitioners may be called to the office to sign, but they shall not be liable for any missing records of the authorities, including the service book of the deceased employee.
Petition disposed off.
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2020 (2) TMI 470
Principles of natural justice - Dishonor of Cheque - section 138 of NI Act - opportunity to cross-examine the witness - right to move an application under Section 145(2) NI Act was already closed - HELD THAT:- Section 145(2) Negotiable Instruments Act, 1881 mandates that once an application by the accused is filed, the court is obliged to summon the person who has given evidence on affidavit in terms of Section 145(1) N.I. Act, 1881.
Reliance placed in the case of MANDVI CO-OP. BANK LTD. VERSUS NIMESH B. THAKORE [2010 (1) TMI 570 - SUPREME COURT] where it was held that The case of the complainant in a complaint under section 138 of the Act would be based largely on documentary evidence. The accused, on the other hand, in a large number of cases, may not lead any evidence at all and let the prosecution stand or fall on its own evidence. In case the defence does lead any evidence, the nature of its evidence may not be necessarily documentary; in all likelihood the defence would lead other kinds of evidences to rebut the presumption that the issuance of the cheque was not in the discharge of any debt or liability. This is the basic difference between the nature of the complainant’s evidence and the evidence of the accused in a case of dishonoured cheque. It is, therefore, wrong to equate the defence evidence with the complainant’s evidence and to extend the same option to the accused as well.
The trial court ought to have allowed the petitioner’s application filed under Section 145(2) N.I. Act - the present petition is allowed, subject to payment of costs of ₹ 10,000/- by the petitioner out of which ₹ 5,000/- shall be paid to the complainant and ₹ 5,000/- shall be deposited with the “Delhi High Court Legal Services Committee” within a period of two weeks from the passing of the order - application allowed.
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