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Indian Laws - Case Laws
Showing 81 to 92 of 92 Records
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2020 (2) TMI 466
Dishonor of Cheque - section 138 of NI Act - complainant had not clarified in his cross examination about exact date of cheque when handed over to him nor he succeeded to prove service of notice as per the provisions established in the Negotiable Instruments Act - HELD THAT:- The applicant has shown his bonafides by depositing in all total ₹ 1, lac.
Issue requires consideration - Rule returnable on 3rd March 2020.
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2020 (2) TMI 412
Dishonor of Cheque - offences u/s 138 of NI Act - alleged forgery of four receipts - HELD THAT:- On the application filed by appellant No.3 in the said Summary Suit No.105/2015, four receipts filed in the suit were sent to the handwriting expert. The handwriting expert has opined that signatures in all the four receipts did not tally with the sample signatures which were of respondent No.2-Mahendra kumar. It was only thereafter, complaint was filed by Mahendrakumar, based on which, FIR No.I-194/2016 was registered on 28.12.2016 against the appellants for the offences punishable under Sections 406, 420, 465, 467, 468, 471 and 114 IPC. As rightly contended by the learned counsel for the appellants, in the Summary Suit No.105/2015, issue No.5 has been framed by the Court “whether the defendant proved that the plaintiff has fabricated the forged signature illegally and created forged receipts”. When the issue as to the genuineness of the receipts is pending consideration in the civil suit, in our view, the FIR ought not to have been allowed to continue as it would prejudice the interest of the parties and the stand taken by them in the civil suit.
It is also to be pointed out that in terms of Section 45 of the Indian Evidence Act, the opinion of handwriting expert is a relevant piece of evidence; but it is not a conclusive evidence. It is always open to the plaintiff-appellant No.3 to adduce appropriate evidence to disprove the opinion of the handwriting expert. That apart, Section 73 of the Indian Evidence Act empowers the Court to compare the admitted and disputed writings for the purpose of forming its own opinion. Based on the sole opinion of the handwriting expert, the FIR ought not to have been registered.
The High Court erred in quashing the criminal case filed by appellant No.3-Hasmukhbhai under Section 138 of N.I. Act. As pointed out earlier, Yogeshbhai has admitted the issuance of cheques. When once the issuance of cheque is admitted/established, the presumption would arise under Section 139 of the N.I. Act in favour of the holder of cheque that is the complainant-appellant No.3. The nature of presumptions under Section139 of the N.I. Act and Section 118(a) of the Indian Evidence Act are rebuttable - Though, the Court has the power to quash the criminal complaint filed under Section 138 of the N.I. Act on the legal issues like limitation, etc. Criminal complaint filed under Section 138 of the N.I. Act against Yogeshbhai ought not have been quashed merely on the ground that there are inter se dispute between appellant No.3 and respondent No.2. Without keeping in view the statutory presumption raised under Section 139 of the N.I. Act, the High Court, has committed a serious error in quashing the criminal complaint in C.C.No.367/2016 filed under Section 138 of N.I. Act.
Appeal allowed - decided in favor of appellant.
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2020 (2) TMI 411
Dishonor of Cheque - offences u/s 138 of NI Act - complaints filed by the petitioner company against respondent no.2 were dismissed due to non-appearance and non-prosecution on behalf of the petitioner company - HELD THAT:- The present petitions were filed on 23.01.2017. The same were also accompanied by applications under Section 378(3) of the CrPC read with Section 482 of the CrPC, seeking leave to file appeals. The learned counsel appearing for respondent no.2 is correct that an appeal could not be filed without seeking special leave to appeal under Section 378(4) of the CrPC. Further, the caption of the applications seeking leave to appeal are also erroneous inasmuch as, the petitioner has captioned those as applications under Section 378 (3) of the CrPC.
It is well settled that the Courts would examine the substance in preference over form and therefore, this Court is unable to accept that the present petitions should be dismissed only for the reasons that they are defective in their form. The petitioner ought to have styled the present petitions as application for leave to appeal. However, this Court does not consider it apposite to dismiss the present petitions on this ground.
This Court is also of the view that the petitioner has adequately explained the delay in filing the present petition - This Court is of the view that the said explanation provided by the learned counsel for the petitioner ought not to be rejected. This is considering that the petitioner has been diligently pursuing its complaint and had promptly filed the process fee for issuance of NBWs as well.
The present appeals are allowed and the complaints are restored on the board of the concerned MM at the same position as obtaining on 21.02.2015.
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2020 (2) TMI 308
Dishonor of Cheque - amount outstanding against defendants - Section 138 Negotiable Instruments Act, 1881 - delay in filing review application - HELD THAT:- The dismissal of cases under Section 138 NI Act by the learned Magistrate on the basis of non-filing of Annexures I & II without examining the MoU and import of dishonoured cheques, would even otherwise be not binding upon this Court. Oral submissions of any alleged loss without an iota of written record allegedly placed by defendants, cannot be entertained, the impugned order having being merged in orders of LPAs”.
Also, there is much delay in filing of review application.
The review application and delay condonation application are bereft of any merit and are rejected with costs of ₹ 10,000/- to be deposited with Lawyers Welfare Fund, Delhi High Court, New Delhi - application dismissed.
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2020 (2) TMI 220
Grant of Bail - seizure of narcotics and psychotropic substances - alleged commission of the offences punishable under Sections 8, 21, 22 and 29 of the NDPS Act, 1985 - HELD THAT:- The provisions of the NDPS Act, 1985 cannot be read in exclusion to the Drugs and Cosmetics Act, 1940 and that if the action of an accused amounts to a prima facie violation of Section 8 of the NDPS Act, 1985, the circumstances and the gravity of the offence does not entitle such an accused to be granted bail.
There is no ground for grant of bail and the application is thus, declined.
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2020 (2) TMI 219
Freezing of Bank Accounts - Chapter V-A under section 68-F and other related Sections given in Chapter V-A of the NDPS Act - It is averred that as the said account contained illegally acquired money so the IO had freezed the account of the petitioner - HELD THAT:- The freezing order has been passed by the IO on 30.10.2019 which was to be sent for confirmation to the concerned competent authority as stipulated U/s 68 F(2) of NDPS Act which was accordingly sent by the IO on 31.10.2019 to the competent authority for confirming or declining the said freezing order and the time prescribed for this procedure is 30 days as per section 68 F(2) of the NDPS Act.
The petition filed by the petitioner is, therefore, liable to be dismissed as there is no challenge to the freezing order dated 30.10.2019 and in any case it was sent for confirmation to the competent authority on 31.10.2019 by the IO. The competent authority had 30 days time to either confirm or decline the freezing order but the petitioner came running to the court without laying any challenge to the present order dated 30.10.2019. The petition is not maintainable as there being no challenge to the freezing order dated 30.10.2019, so the same is dismissed. However, since the proceedings have been stayed by virtue of the order dated 05.11.2019, so the time for completion of the proceedings by the competent authority as per provisions of section 68F(2) of NDPS Act is extended for 25 days from the date of disposal of this writ petition.
Application disposed off.
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2020 (2) TMI 218
Smuggling - Cocaine - whether the appellant’s search conducted by police officials – which yielded 25 grams of cocaine – was not compliant with the provisions of Section 50 of the NDPS Act, as it was not conducted in the presence of Gazetted Officer/Magistrate?
HELD THAT:- The mandate of Section 50(1) of the NDPS Act is to ensure that the authorized officer informs the person proposed to be searched about his right to be searched before a Magistrate or a Gazetted Officer. The authorized officer is also obliged to take the concerned person (the suspect) to the nearest Gazetted Officer of any departments mentioned in Section 42 of the NDPS Act or to the nearest Magistrate, if such person so requires - it is no longer res integra that it is mandatory to comply with Section 50 of the NDPS Act. There is also no ambiguity as to manner in which Section 50 of the NDPC Act is required to be complied. Plainly, there is no requirement to conduct the search in the presence of a Magistrate or Gazetted Officer, if the person proposed to be searched did not so desire, after being informed of his right in this regard. The words “if such person so requires” as used in Section 50(1) of the NDPS Act make it amply clear that the person to be searched would be taken before a Magistrate or a Gazetted Officer, only if he so requires.
In terms of Sub-section (2) of Section 50 of the NDPS Act, the Authorised Officer is empowered to detain the person proposed to be searched until he can bring him before the Gazetted Officer/Magistrate, as referred to in Sub-section (1) of Section 50 of the NDPS Act. The words “such requisition”, as mentioned in the opening sentence of Subsection (2) of Section 50 of the NDPS Act, obviously refers to the person proposed to be searched electing to exercise his right to be searched before a Gazetted Officer / Magistrate.
Sub-section (5) of Section 50 of the NDPS Act were met, that is, if it is not possible to take the person to be searched to the nearest Gazetted Officer/Magistrate without the possibility of the person being searched parting with the possession of any narcotic drugs, psychotropic substance or any controlled substance or article or document. In terms of Sub-section (6) of Section 50 of the NDPS Act, the authorised officer is also required to record reasons for his belief that necessitated him to search the suspect without taking him to the nearest Gazetted Officer or Magistrate. Such reasons are required to be recorded within seventytwo hours of the search being conducted and a copy of the same is required to be sent by the authorised officer to his immediate official superior. Given the scheme of Section 50 of the NDPS Act, it is difficult to accept that it is mandatory to search a suspect before a Magistrate/ Gazetted Officer, notwithstanding that the suspect does not so require, after he is apprised of his rights in this regard.
The prosecution has established that the appellant was apprised of his right to be searched before a Magistrate or a Gazetted officer but he did not require that his search be conducted before the said persons - Appeal dismissed.
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2020 (2) TMI 217
Smuggling - Psychotropic Substances - conviction of offences u/s 20(b)(ii)(c) read with Section 29 of the Narcotics Drugs and Psychotropic Substances Act, 1985 - HELD THAT:- Section 29 of the NDPS Act and to pay a fine of ₹ 1,00,000/- each and in default thereof to undergo simple imprisonment for 6 months vide order dated 11.10.2012. The appellants have almost served the substantial sentence as stated hereinabove. The conduct of the appellants has been reported to be satisfactory as per the nominal roll received from the jail authorities. The appellants have not been previously convicted nor are they involved in any other criminal case.
Taking into consideration, Section 30 of the Code of Criminal Procedure, 1973, the default sentence of the appellants is reduced from six months to two months. It is ordered that the appellants shall pay a fine of ₹ 1 lac each and in default of payment of fine, the appellants shall have to further undergo simple imprisonment for two months.
Appeal disposed off.
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2020 (2) TMI 177
Dishonor of Cheque - section 138 of NI Act - non-presentation of the cheque - HELD THAT:- Admittedly, the cheque was presented to the drawee bank after the period of expiry of its validity of three months, which is to be calculated from the date mentioned on the cheque. The Clause (a) of Proviso to Section 138 of N.I. Act stipulates that Section 138 shall not be applicable unless the cheque is presented to the bank within a period of six months (the period has been reduced from 6 months to 3 months vide the aforementioned RBI notification dated 04.11.2011) from the date on which it is drawn or within the period of its validity, whichever is earlier.
Petition allowed.
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2020 (2) TMI 176
Dishonor of Cheque - legally enforceable debt and liability or not - offence punishable under Section 138 of the Negotiable Instruments Act 1881 or not - time barred debt - HELD THAT:- Once a cheque is drawn for discharge of a time barred debt, it creates a promise which becomes an enforceable contract and therefore, it cannot be said that the cheque is drawn in discharge of debt or liability which is not legally enforceable. Therefore, the impugned judgment dated 16.9.1998 has to be set aside and is hereby set aside.
The matter is remanded to the trial Court to decide, based on the evidence already recorded, whether the complainant has proved the ingredients of offence punishable under Section 138 of the Negotiable Instruments Act 1881 - Appeal allowed by way of remand.
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2020 (2) TMI 172
Dishonor of Cheque - insufficiency of funds - service of notice - the legal notice was sent beyond 30 days of knowledge of the dishonour of cheque - HELD THAT:- In the present case, the complainant has already led his evidence and it has come on record that on receipt of the return memo, the complainant immediately got in touch with the accused and on not receiving any satisfactory answer, the legal notice was given on 06.02.2017. From a reading of the above, it is apparent that the legal notice of demand was issued beyond 30 days from the date of the return memo.
The complaint is not maintainable and the same is accordingly quashed - application disposed off.
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2020 (2) TMI 33
Recovery alongwith interest - restraint from making any payments towards their fixed deposits - HELD THAT:- It is deemed not necessary to examine the merit of the contentions made by the learned Senior Counsel. The depositors are being represented by the Authorized Representative before the Committee of Creditors. We leave it open to the Appellants to raise all points and contentions before the Committee of Creditors, the Administrator and if necessary, the NCLT - In view of the above, we are not inclined to interfere with the decision of the Committee of Creditors taken on 30.12.2019. We are informed that there are nearly one lakh depositors who have invested their life time earnings with Respondent No.1. Some of the deposits have matured and some of the depositors are critically ill. We have no doubt that the concerns of the depositors and their rights shall be considered in accordance with law.
Appeal disposed off.
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