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Indian Laws - Case Laws
Showing 41 to 50 of 50 Records
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2020 (8) TMI 254 - MADHYA PRADESH HIGH COURT
Condonation of delay in filing revision application - Dishonor of cheque - no rebuttal to prove innocence - quantum of punishment granted - HELD THAT:- At the time of the pronouncement of the judgment, the applicant was not present in the Court and later on he surrendered himself before the J.M.F.C. On 29.08.2019 and sent to the judicial custody. The applicant has completed the jail sentence of six months and he is going to complete the remaining jail sentence i.e. six months in place of payment of fine, therefore, no useful purpose would be served to condone the delay as the applicant is neither having a good prima facie case nor hope to succeed in it. He has already undergone a major part of the sentence. He has no amount to offer for payment to the complainant. He has already applied before the competent Court seeking a declaration to be bankrupt, therefore, even if the delay is condoned, there would be a chance of success in this Revision on merit - The Tehsildar, Anjad has initiated proceeding for attachment and auction sale of his house No.15, M.G. Road, Anjad for recovery of ₹ 19,55,000/- for payment of the fine amount already imposed in five cases filed against him under Section 138 of the Negotiable Instruments Act, thus, there are no ground to condone the delay and admit this Revision for final argument.
Revision dismissed.
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2020 (8) TMI 252 - SC ORDER
Grant of Bail - impugned judgment is incorrect or contrary to record - HELD THAT:- Although, the petitioner may be justified in relying upon documents brought on record to indicate that the finding of fact noted by the High Court in the impugned judgment is incorrect or contrary to record even so, taking overall view of the matter, we decline to interfere with the order granting bail to respondent No.2.
However, at least, two additional conditions be imposed on respondent No.2, in addition to the conditions specified in paragraph 39 of the impugned judgment of the High Court for grant of bail - First, the respondent No.2 shall forthwith deposit his passport with the Investigating Officer and not later than one week from today - The second aspect is to clarify that the finding recorded by the High Court on certain factual aspects shall not come in the way of the prosecution and the Trial Court shall not be influenced by the same at the time of trial. The Trial Court shall, however, decide the matter on the basis of evidence brought on record by the concerned parties.
SLP disposed off.
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2020 (8) TMI 217 - MADRAS HIGH COURT
Maintainability of petition - Usage of acronym ICOAI instead of the acronym ICAI - desisting from encroaching into the domains earmarked for the third Respondent - whether the Appellant/Petitioner had the locus standi to maintain the writ petition? - HELD THAT:- The third Respondent is a body corporate established by statute and conferred with perpetual succession, the right to a common seal and the right to sue and be sued in its name. The party-in-person has not filed the writ petition in his personal capacity or as a public interest litigation. Instead, it is in the nature of an action for and on behalf of the third Respondent. In effect, using a private law analogy, the present writ petition and the appeal arising there from appear to be in the nature of a derivative action. Even in the realm of private law, derivative actions cannot be maintained unless it is established that the entity on whose behalf such action is initiated is unable, for justifiable reasons, to prosecute proceedings to protect its interest - Neither the party-in-person nor the third Respondent have pleaded nor raised any contention to the effect that the third Respondent was disabled for some valid reasons from initiating proceedings in order to protect its rights and interests. A fortiori, a discretionary public law action cannot be maintained in this situation. Therefore, we concur fully with the findings of the learned Judge in the impugned order that the Appellant/Petitioner does not have locus standi and that the writ petition was not maintainable at his instance.
The second plank on which the Appellant's case rests is that the third Respondent obtained a trade mark registration for the acronym ICAI and that consequently, the third Respondent is entitled to restrain the use of the acronym ICAI by the first Respondent. The Trade Marks Act enables the registered proprietor of a trade mark to sue for infringement. Even with regard to an unregistered trade mark, it recognizes the right of the proprietor to initiate an action for passing off under common law - By letter dated 17.06.2020, the Ministry of Corporate Affairs had advised the first Respondent that it is not desirable for the first Respondent to use the acronym ICAI. However, by subsequent letter dated 26.06.2020, the earlier letter was modified and paragraph 7, which dealt with the non-desirability of using the acronym ICAI, was withdrawn by the Ministry of Corporate Affairs. By relying upon these documents, the party-in-person had contended that the Ministry of Corporate Affairs is of the view that the first Respondent should desist from using the acronym ICAI, and that a direction should be issued to that effect. This correspondence was exchanged after the writ petition was filed and in light of the conclusions that we have set out above, we do not propose to issue any such direction.
Appeal dismissed.
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2020 (8) TMI 216 - KERALA HIGH COURT
Dishonor of Cheque - prosecution under section 138 of the Negotiable Instruments Act - rebuttal of prosecution - HELD THAT:- It is clear that the complainant issued Ext.D1 and Ext.D2 notice. In Ext.D3 reply dated 3.11.1999, it is specifically stated by the accused that two blank cheques are with the complainant. The number of Exhibit P1 was specifically mentioned.
The case of the complainant is that the accused issued Ext.P1 cheque on 10.11.1999. This itself creates doubt about the case of the complainant. The counsel for the complainant submitted that Ext.D4 plaint is not related to the cheque involved in this case. Even if Ext.D4 excluded, in the light of Exts.D1 to D3, it is clear that the accused rebutted the presumption under Sections 138 and 139 of the Negotiable Instruments Act. The trial court considered all the aspects of the case and acquitted the accused. There is nothing to interfere with the judgment of the trial court.
Appeal dismissed.
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2020 (8) TMI 215 - KERALA HIGH COURT
Dishonor of cheque - insufficiency of funds - acquittal of accused - Section 141 of the Negotiable Instruments Act - HELD THAT:- Explanation (a) to Section 141 of the Negotiable Instruments Act clearly says that 'Company' means any body corporate and includes a firm or other association of individuals. Explanation (b) says that 'Director' in relation to a firm means a partner in the firm.
The 2nd accused also contented that there is no evidence in this case to prove the execution of the cheque. Therefore, even though this is an appeal against the acquittal, an accused can take any contention in his favour before this Court. It is an admitted case that, the 1st accused in this case is M/s. Sea Wings Shipping & Others, Willingdon Island represented by its Managing Partner Mr. Varghese Philip. Mr. Varghese Philip is the 2nd accused - Since 1st accused is a firm, only fine was imposed. The conviction and sentence imposed on the 1st accused is not challenged by the 1st accused. 1St accused is represented by the 2nd accused. The conviction and sentence imposed on the 1St accused became final. In such circumstances, the 2nd accused, who is actually representing the 1st accused cannot contend in an appeal against acquittal of the 2nd accused to the effect that, the execution of the cheque is not proved, especially when the conviction and sentence against the 1st accused under section 138 of the Negotiable Instruments Act became final.
The 2nd accused also committed an offence under section 138 of the Negotiable Instruments Act. The trial Court imposed a fine of ₹ 5,000/- to the 1st accused because 1st accused is a partnership firm. 2nd accused is the Managing Partner of the firm - the 2nd respondent/2nd accused is convicted under section 138 of the Negotiable Instruments Act - appeal allowed.
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2020 (8) TMI 214 - ALLAHABAD HIGH COURT
Dishonor of Cheque - insufficiency of funds - the opposite party no. 2 has pointed out about all the orders by which the revisionist has directed to deposit forty per cent of the fine amount, but still he has not deposited the same - HELD THAT:- Perusal of the provisions of Section 148 N.I. Act as well as the fact that the revisionist has approached this Court by means of filing several applications in which also he was given sufficient time to deposit the penalty amount still the same has not been complied by the revisionist.
The revisionist is directed to deposit 50 per cent of the fine amount, preferably, within a period of 30 days from today - After the aforesaid amount will be deposited by the revisionist, concerned court below is directed that the appeal may be heard on merits and may be decided, in accordance with law, by means of reasoned and speaking order within a further period of two months from the date of first hearing of appeal.
Application disposed off.
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2020 (8) TMI 213 - UTTARAKHAND HIGH COURT
Dishonor of Cheque - insufficiency of funds - time limitation - first contention of the revisionist is that the notice of the complainant dated 09.03.2015 does not fulfill the condition as provided under the proviso 'b' to Section 138 of Negotiable Instruments Act - interpretation given to proviso (b) of Section 138 of NI - HELD THAT:- The argument extended by the learned counsel for the revisionist is that the notice dated 09.03.2015 issued by the complainant only contained 7 days' time period, which was provided to the revisionist to pay the amount in compliance of the provisions contained under proviso 'c' to Section 138, is absolutely a misconception, which has been drawn by the revisionist attracting the implications of the proviso 'b' of Section 138 of the Negotiable Instruments act for the purposes of complying the conditions of the proviso 'c' to Section 138. Both the proviso had been legislated to meet the different intention and purposes to be complied prior to initiation of proceedings by registering the complaint - Both the provisos are independent to one another. The intention and purpose of the proviso 'b' is only a liability or the limitation, which has been imposed and casted upon the complainant for filing the complaint on the receipt of information from the Bank of the dishonour of cheque. Hence, the 30 days' period would start running against him, i.e. the complainant, immediately after the receipt of notice issued by the Bank, its not for the purposes of fulfilling the conditions of proviso 'c' of Section 138 of Negotiable Instruments Act.
On simple reading of the proviso, the Court is of the opinion that, the said proviso 'b' does not provide that it is a 30 days' time period, which has to be mentioned in the notice issued by the complainant to the revisionist for complying with the conditions under the proviso 'c' to Section 138 as a condition precedent for filing of complaint provided in proviso 'b'. The proviso 'c' to Section 138 it only provides that as soon as the notices are received by the accused the conditions contained therein has to be complied with by the revisionist within period of 15 days from the date of its receipt, i.e. the notice - The very fact that the proceedings itself was initiated at a much belated stage, i.e. only on 03.04.2015, the implications drawn from clause 'c' to the proviso to Section 138 will not be attracted in the instant case. Consequently, the said argument of the learned counsel for the revisionist is turned down and is not accepted by this Court.
Non-reference of the amount claimed by the complainant in the proceedings under Section 138 of the Negotiable Instruments Act - HELD THAT:- The said contention is also not accepted.
Hence, both the fault in the proceedings held concurrently before the courts below, which was sought to be pressed upon by the revisionist to the effect that the complaint itself would be defective in the absence of there being mentioning of the amount claimed by the respondent in his notice dated 19.03.2015 is otherwise also not sustainable and contrary to the documents on record. Besides the above two issues, no other ground has been pressed by the revisionist.
Criminal revision dismissed.
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2020 (8) TMI 134 - PATIALA HOUSE COURT
Dishonor of Cheque - amount in words and figures differs - the amount written in words is also uncertain - ambiguity in amount to be paid - very factum of the instrument in dispute - valid cheque or not - application seeking discharge was moved - application for discharge was dismissed and the framing of notice u/s 251 Cr.P.C. was ordered - HELD THAT:- In view of section 6 of the NI Act, a cheque is a bill of exchange which is drawn on a specified banker and is payable otherwise than on demand. Therefore to be a cheque, an instrument has to satisfy the conditions of being a bill of exchange first and thereafter, if it is a valid bill of exchange and directed to a banker, it will become a cheque.
There could have been no dispute about this instrument being a cheque within the definition of section 6 of the NI Act but for its failure to meet the certainty of the amount to be paid - However, as per the scheme of the NI Act 1881, an instrument does not become invalid merely because the amount ordered to be paid is stated differently in figures and in words.
Therefore, as per the provisions of section 18 NI Act, merely because the amount to be paid as stated in figures and words is different, a cheque or an instrument does not become invalid and the amount stated in words shall be considered to be amount undertaken or ordered to be paid - In the usual course of things, if a cheque has ambiguity with regard to the amount, it can be settled by falling back upon the amount written in words and that amount shall be considered to be the amount undertaken or ordered to be paid through that instrument or cheque. The effect of section 18 NI Act is that in case of amount is stated differently in words and figures, the amount stated in figures would be immaterial and it is only the amount stated in words that has to be considered.
In the present case, there is an uncertainty with regard to the amount which has been ordered to be paid through the instrument in question. However, in view of section 18 of NI Act, it can still be a valid instrument if, on the basis of the amount written in words, a certainty can be arrived at with regard to the amount ordered to be paid. Surprisingly, in the present case, the amount written in words is “forty four lacs eighteen lacs eight hundred and ninety six only.”. This amount cannot be said to be a certain amount of money as it is an absurdity which makes that amount unquantifiable. It is correct that if the amount written in figures when read had made a sense, it would have become a certain amount and could have satisfied the condition of certainty as to the amount as required by section 5 of NI Act. In the present case, even section 18 of NI Act cannot be applied to the instrument in question. This is because of the absurdity of the amount as mentioned in words in the instrument. Once there is a difference in the amount in the instrument as written in words and figures, the amount written in figures becomes immaterial and cannot be resorted to find what was the intended sum of money ordered to be paid through such instrument.
The amount stated in words is absurd and thus the certainty which is required by sections 5 & 6 of the NI Act with regard to the amount to be paid is missing in this instrument. That being the case, this instrument was not a valid cheque when presented before the bank.
If such an instrument was presented and dishonoured, would it amount an offence u/s 138 of the NI Act? - HELD THAT:- The offence u/s 138 NI Act is stated to be committed by a person when a cheque issued by him, in discharge of a legally recoverable debt or liability, is dishonoured and such dishonour is on account of insufficiency of funds or on account that it exceeded arrangements with the bank. Further, the drawer of the cheque despite receipt of a legal notice within the stipulated time, fails to pay the amount of the cheque. It is to be seen that the entire section 138 of NI Act talks about a cheque. The word ‘cheque’ used in section 138 of NI Act carries the same meaning as defined u/s 6 of the NI Act. Thus, the offence u/s 138 NI Act can only be said to have been committed if, the instrument that was presented and dishonoured was a cheque as defined by section 6 of the NI Act - In the present case, as discussed above, the instrument which was presented to the bank was not a valid cheque for lack of certainty as to the amount that was ordered to be paid and the bank had also refused to honour this instrument only on the ground that cheque was irregularly drawn / amount in words and figures differed.
The material presented before the trial court was sufficient to conclude that as the instrument on the basis of which complaint was filed was not a valid cheque within the definition of section 6 of NI Act, no notice u/s 251 Cr.P.C could have been framed against the accused/ revisionists - the application of the revisionists/ accused seeking discharge was dismissed and notice for the offence u/s 138 NI Act was ordered to be framed, cannot be sustained.
Impugned order is set aside - The revisionists stand discharged.
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2020 (8) TMI 107 - SUPREME COURT
Smuggling - cannabis (ganja) - contraband item - rebuttal of presumption - presumption against the accused of culpability under Section 35 - fabricated and fictitious document - HELD THAT:- In view of the nature of evidence available it is not possible to hold that the prosecution had established conscious possession of the house with the appellant so as to attribute the presumption under the NDPS Act against him with regard to recovery of the contraband. Conviction could not be based on a foundation of conjectures and surmises to conclude on a preponderance of probabilities, the guilt of the appellant without establishing the same beyond reasonable doubt - The police investigation was very extremely casual, perfunctory and shoddy in nature. The appellant has been denied the right to a fair investigation, which is but a facet of a fair trial guaranteed to every accused under Article 21 of the Constitution. The consideration of evidence by the Trial Court, affirmed by the High Court, borders on perversity to arrive at conclusions for which there was no evidence. Gross misappreciation of evidence by two courts, let alone poor investigation by the police, has resulted in the appellant having to suffer incarceration for an offence he had never committed.
The conviction of the appellant is held to be unsustainable and is set aside - appellant is acquitted - Appeal allowed.
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2020 (8) TMI 26 - DELHI HIGH COURT
Wilful defaulters or not - default in repayment of dues - grievance of the petitioners was that the respondent bank was not giving access to the underlying documents to the petitioners - Master Circular dated 01.07.2015 - HELD THAT:- Procedure adopted by the respondent is wholly contrary to the mandate stated by the Supreme Court in the case of STATE BANK OF INDIA VERSUS M/S. JAH DEVELOPERS PVT. LTD. & ORS. [2019 (5) TMI 862 - SUPREME COURT]. Firstly, it is not a reasoned order. Secondly, the order of the First Committee was never communicated to the petitioners. The net result is that the petitioners never had an opportunity to make a representation against the order of the First Committee to the Review Committee.
There is clear non-compliance of the directions of the Supreme Court as noted in the judgment of STATE BANK OF INDIA VERSUS M/S. JAH DEVELOPERS PVT. LTD. & ORS. [2019 (5) TMI 862 - SUPREME COURT].
Any consequential steps taken by the respondent declaring the petitioners as a wilful defaulter including putting their names on the net or communication to RBI would automatically stand withdrawn - Petition disposed off.
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