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Indian Laws - Case Laws
Showing 21 to 40 of 87 Records
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2020 (9) TMI 1240
Dishonor of Cheque - seeking transfer of the proceedings filed by the respondent under Section 138 of the Negotiable Instrument Act pending on the file of Additional Chief Judicial Magistrate, Agra, Uttar Pradesh to the competent Court at Siliguri, Darjeeling, West Bengal - HELD THAT:- If the delivery challan which states that all disputes will be subject to the jurisdiction of courts in Siliguri, is construed by the petitioners to constitute a bar for the courts in any other jurisdiction to entertain the proceedings, it is always open to the petitioners to raise this point before the Agra Court. This cannot be a ground for seeking transfer - the fact that the petitioners have made a prior complaint to the police about the loss that he sustained on account of the poor quality of feed supplied by the respondent herein cannot be a ground to seek the transfer of the proceedings under Section 138.
The fact that the respondent has its Head Office at Siliguri and that there is no reason why it chose to file a complaint in Agra except to harass the petitioners, cannot also be a ground for seeking transfer. Under Section 142(2)(a) of the Negotiable Instrument Act, the court within whose jurisdiction the branch of the bank where the payee maintains the account is situated, will have jurisdiction to try the offence, if the cheque is delivered for collection through an account. Therefore, all the grounds on which the petitioners seek transfer, are unsustainable.
The Transfer Petition is therefore dismissed.
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2020 (9) TMI 1218
Retrenchment of 297 employees by Press Trust of India - Seeking reinstatement with back wages and consequential benefits - retrenchment on the ground that there was no work for three categories of employees namely Attender, Transmission and Engineering - Section 25-F of the Industrial Disputes Act - HELD THAT:- It is well settled that the parties have to amend their pleadings to incorporate new facts and documents. This Court depreciates the manner in which the new averments and documents beyond pleadings are sought to be filed without permission of this Court, at such a belated stage, for which no explanation has been given. The new pleadings and documents filed by the petitioners on 25th August, 2020 are not even supported by an affidavit. There is merit in the respondent's submission that the documents now filed do not appear to be genuine on various grounds inter alia that 141 letters of retrenched employees in W.P.(C) 10596/2018 are all undated; the signatures of many retrenched employees do not tally with their signatures in their service record; the signatures of 35 employees in their letters in W.P.(C) 10596/2018 do not match with their letters in W.P.(C) 10605/2018; the petitioners have not filed any requisition for calling the general body meeting, notice of meeting, agenda notes of meeting.
The petitioners have to lead evidence before the Industrial Tribunal to prove these disputed documents in accordance with law. The new averments and documents filed by the petitioners along with the written submissions dated 25th August, 2020 are beyond pleadings and therefore, the same are not taken on record - this Court is of the view that both the petitioners have failed to show the authority to file the writ petition on behalf of 297 retrenched employees either in the writ petition or the documents filed along with the writ petition as on the date of filing of these writ petitions.
Both the writ petitions are dismissed on the ground that the retrenched employees have statutory remedy under the Industrial Disputes Act and no 'Exceptional circumstances' have been made out by the petitioners. The retrenched employees are at liberty to avail appropriate remedies available to them under the Industrial Disputes Act - petition dismissed.
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2020 (9) TMI 1217
Declaration of account as NPA or not - it is submitted that no account shall become NPA atleast for a period of two months - HELD THAT:- At the request of the Mr. Tushar Mehta, learned Solicitor General, the matter is adjourned for 10.09.2020.
The accounts which were not declared NPA till 31.08.2020 shall not be declared NPA till further orders.
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2020 (9) TMI 1216
Seeking grant of regular/interim bail - petitioner is suffering from multi-system ailments - HELD THAT:- Keeping in view the medical condition of the petitioner, the petitioner is admitted to interim bail for a period of 10 weeks, on his furnishing a personal bond in the sum of ₹ 1,00,000/- with one surety of the like amount to the satisfaction of the concerned Jail Superintendent/Duty MM and subject to the conditions imposed.
Petition allowed.
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2020 (9) TMI 1215
Dishonor of Cheque - prosecution of Directors and others for vicarious liability - Section 141 of the Negotiable Instruments Act - HELD THAT:- In this case, the statutory notice was not served on the petitioner, since the petitioner was resigned from A1 company on 01.08.1998 and the same was accepted in the board meeting, which was held on 08.09.1998. To prove the resignation, the petitioner submitted Form 32, dated 11.09.1998 issued by the Registrar of Companies, Chennai. Admittedly, the cheque was presented for encashment on 03.09.1998 and the statutory notice was issued on 11.09.1998. In the sworn statement, it is stated by the respondent that the notice was received by A1 company on 14.09.1998 and as regards, notice sent to other accused, it was returned for the reason that no such person available in the noticee address, which fortifies and confirms that the petitioner was resigned from A1 company on 01.08.1998.
It is not in dispute that the petitioner is a Director of A1 company and in the complaint lodged by the respondent except paragraph No.7, nothing is averred against the petitioner. It is seen from the paragraph No.7 of the complaint that except mentioning the magical word that the accused are incharge of the management and affairs of the company, there is nothing more - this Court finds that there is no factual averments to show how the petitioner is responsible for the business and conduct of A1 company to invoke provision under Section 141 of the Negotiable Instruments Act.
Petition allowed.
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2020 (9) TMI 1204
Seeking an interim direction, to Respondent No. 1, to furnish a bank guarantee - discontinuance of payment of running accounts bills submitted by the petitioner, consequent breach, by Respondent No.1, of Clause 3.3 of the sub-contract agreement and discontinuance of the allocation of work to the petitioner - Section 9 of the the Arbitration and Conciliation Act, 1996 - HELD THAT:- While Section 9(1)(ii)(b) of the 1996 Act unquestionably empowers the court to secure the amount in dispute in the arbitration, any such direction has, in principle, to conform to the discipline of Signature Not Verified Digitally Signed. Order XXXVIII Rule 5 of the Code of Civil Procedure, 1908. Further, it is not enough for the petitioner to establish a prima facie case, balance of convenience and irreparable loss; additionally, the petitioner would have to establish, on facts, that, were security not to be directed as prayed, the arbitral proceedings were likely to be frustrated. Section 9 is not intended to operate as an alternative to Section 17.
Prima facie, the concern expressed by Mr. Ravi Ranjan is purely in the realm of apprehension and conjecture at present. It Signature Not Verified Digitally Signed hinges on several imponderables, with no supportive material forthcoming from the record - that apart, the mere perceived difficulty in the enforcement of a possible arbitral award, which might ensue in favour of a party, cannot, prima facie, be a ground to direct the furnishing of security, in a proceeding under Section 9 of the 1996 Act.
Various notices to be issued - Renotify on 19th November, 2020.
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2020 (9) TMI 1194
Seeking grant of extension in time, for making the re-payment of the balance settlement amount in terms of One Time Settlement (OTS) - balance could not be paid due to prevailing lockdown situation - Whether this Court in exercise of its jurisdiction under Article 226 of the Constitution of India, has the jurisdiction to extend the period of One Time Settlement? - HELD THAT:- If the settlement policies of the banks itself provide for an extension subject to payment of interest, there is no reason to hold that the Courts in exercise of their equitable jurisdiction under Article 226 of the Constitution of India, cannot extend such time period of settlement.
Further, it is also to be noticed, that invariably in all the settlement schemes or the policies, there are already sufficient checks and balances to identify eligible borrowers to whom such concessions can be extended to lead to an OTS. It is needless to mention that settlement takes place, only after the case of the borrower has been tested on the basis of criteria of eligibility for settlement provided under the scheme or policy itself. For example we see, that cases of wilful default and fraud are normally excluded - a deserving borrower, who has deposited substantial amounts within the originally stipulated period of settlement, proved his bona fides and is willing to clear the remaining in a reasonable period, and compensate the creditor with interest for the period of delay, should be considered with some flexibility to achieve the ultimate aim of such settlements. It is with this perspective, that extensions can be considered to be granted to deserving cases.
This issue in answered in AFFIRMATIVE and hold that this Court in exercise of its jurisdiction under Article 226 of the Constitution of India would have the jurisdiction to extend the period of settlement as originally provided for, in the OTS letter.
Whether in the facts of the present case, the petitioners would be entitled for an extension in making payment of the balance settlement amount pursuant to One Time Settlement dated 29.01.2019? - HELD THAT:- In the present case, the petitioner has prayed for extension of settlement period pursuant to an OTS entered with respondent No. 2 and has paid substantial portion of the same and is willing to pay the remaining with interest. In our considered opinion, if the petitioners are in litigation with other creditors the same by no stretch of imagination constitutes to be a material fact, disclosure of which would have had any impact over the decision of the present case. So long as the respondent No. 2 is getting its money back, under a settlement voluntarily entered into by it, it would have no concern with what the petitioners are litigating with the other creditors - there are no hesitation in rejecting this argument of the respondent.
The petitioners would have to pay the remaining amount due in two quarterly instalments, of which a sum of ₹ 25 lacs shall be payable on or before 31.12.2020 and the remaining amount by 31.03.2021. The petitioners shall also pay interest @ 9% p.a. simple on the delayed payments on reducing balance payable w.e.f. 01.06.2019 i.e. the closing date of the settlement/OTS. It shall be the responsibility of Respondent No. 2 to calculate the amounts due on account of interest and inform the petitioners well in advance, so as to enable the petitioners to ensure adherence to the time schedule of repayment.
Whether the present petition is maintainable in view of the proceedings pending before National Company Law Tribunal, Mumbai? - HELD THAT:- The present case is peculiar in nature, inasmuch as, usually it is Corporate Debtors of private and public nature which are subjected to Insolvency proceedings at the instance of the creditors (Financial/Operational). However, proceedings before the Adjudicating Authority i.e. the "National Company Law Tribunal, in the present case, have been initiated against the Respondent/Financial Service Provider i.e. the creditor itself, at the instance of the Regulator i.e. Reserve Bank of India. Such proceedings against the Financial Service Provider are governed under the Code, 2016 by virtue of Insolvency and Bankruptcy (Insolvency and Liquidation Proceedings of Financial Service Provider and Application to Adjudicating Authority) Rules, 2019.
On one hand, the respondent, is facing liquidity issues resulting into initiation of insolvency proceedings and surprisingly on other hand is opposing the prayer of a borrower who intends to make payment to the respondent, which should be the need of the hour, as far as the respondent is concerned. We are yet to notice a plea taken by an entity facing insolvency proceedings, to oppose the prayer of the petitioner which is proposing to make payment of its dues payable to respondent. In our opinion, the interpretation sought to be given by the respondent, is a self defeating argument and hence we express our inability to accept the same - this issue is answered in AFFIRMATIVE and it is held that in the peculiar facts and circumstances of the present petition, the petition would be maintainable.
The petitioners would have to pay the remaining amount due pursuant to OTS dated 02.01.2019 (P-11) in two quarterly instalments, of which a sum of ₹ 25 lacs shall be payable on or before 31.12.2020 and the remaining amount by 31.03.2021. The petitioners shall also pay interest @ 9% p.a. simple on the delayed payments on reducing balance payable w.e.f. 01.06.2019 i.e. the closing date of the settlement/OTS. It shall be the responsibility of respondent No. 2 to calculate the amounts due on account of interest and inform the petitioners well in advance, so as to enable the petitioners to adhere to the time schedule of repayment - Petition allowed.
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2020 (9) TMI 1187
Dishonor of Cheque - acquittal of the accused - acquittal on suspicion, surmises and conjectures - the recovery of knife and rope at the instance of the Accused - appreciation of evidence on doubtful disclosure statements - non-examination of material witnesses - prosecution has to prove the complete chain of events - material contradictions and even the recovery of jeep, knife and rope, photographs from the jeep.
HELD THAT:- It is not in dispute that this is a case of circumstantial evidence. As held by this Court in catena of decisions that in case of a circumstantial evidence, the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the Accused and none else and the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the Accused and such evidence should not only be consistent with the guilt of the Accused but should be inconsistent with his innocence.
In the present case, the prosecution as well as the High Court considered the recovery of photographs; recovery of mobile phone belonging to PW7, recovery of the knife and rope at the instance of the Accused and on alleged disclosure statements of the Accused on 9.9.2010. The prosecution also relied upon the recovery of jeep in which the photographs of the Accused were found. The prosecution also relied upon the disclosure statement of the Accused Anwar Ali with respect to recovery of crates and for the aforesaid prosecution heavily relied upon the testimony of PW5, PW6 and PW7 - the prosecution and the IO suppressed the material facts. Even in the cross-examination, the IO has stated that the sniffer dog had done nothing on the spot. In the cross-examination, he has also specifically stated that "it is incorrect to suggest that the sniffer dog had traced the strings Ex. P52, knife Ex. P59 and vest Ex. P54. However, PW4 and PW5 in their deposition have categorically stated that the knife and rope were recovered on 2.9.2010. The aforesaid cannot be said to be minor contradictions. Therefore, the trial Court was justified in not believing the disclosure statements of the Accused and the recovery of the knife, rope etc. on 9.9.2010 as alleged by the prosecution. From evidence, it emerges that the knife, rope and vest were recovered on 2.9.2010 i.e., much prior to 8.9.2010 when the Accused were arrested.
The Investigating Officer did not follow the procedure as required to be followed Under Section 166(3 & 4), Code of Criminal Procedure Even he did not comply with the provisions of Section 100(4) Code of Criminal Procedure Non-following of the aforesaid provisions alone may not be a ground to acquit the Accused. However, considering the overall surrounding circumstances and in a case where recovery is seriously doubted, non-compliance of the aforesaid play an important role - Even the recovery of the mobile phone from the jeep belonging to PW7 also creates doubt. Though, PW7 has stated that his mobile was stolen or cheated, he never filed any complaint earlier. Even the IO has not tried to have the call details of the mobile. He has not tried to verify from the call details the conversation to or from the mobile.
The findings recorded by the learned trial Court, which were based on appreciation of the entire evidence on record cannot be said to be either perverse or contrary to the evidence on record and/or it cannot be said that the trial Court did not consider any material evidence on record. Trial Court was justified in recording the acquittal by observing that prosecution has failed to complete the entire chain of event - the High Court is not justified in reversing the order of acquittal passed by the learned trial Court.
Petition allowed.
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2020 (9) TMI 1186
Dishonor of Cheque - validity of summon order passed by the Court - Intent of drawer is clear that he will not make payment - HELD THAT:- The provision of Section 138 of the Act, 1881 cannot be interpreted to mean that even if the accused refuses to make payment, the complainant cannot file a complaint. Proviso (c) of the said Act is to see the bona fide of the drawer of the cheque and is with a view to grant him a chance to make the payment - In this case, the cheque was drawn by the accused on an account maintained by him with the bank. The period of 15 days is for making payment. In this case the accused did not make the payment and did not even appear before the Court below for a year. It is in the month of August, 2020 that he has approached this Court.
In the case in hand, the petitioner herein replied to the notice which goes to show that the intention of the drawer is clear that he did not wish to make the payment. Once this is clarified, should the complainant wait for the minimum period of 15 days, the answer would be 'no' - Reason given by the learned Magistrate is very clear. It is well reasoned order which was passed on 30.11.2019. For a period of one year, the petitioner has chosen not to appear before the learned Magistrate and has moved this Court now.
This petition is dismissed with cost of ₹ 15,000/- to be deposited before the Court below.
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2020 (9) TMI 1178
Enforcement of Foreign Award - application Under Section 48 of the Arbitration and Conciliation Act, 1996 was dismissed - Limitation for filing an enforcement/ execution petition of a foreign award - condonation of delay in filing the execution petition by the Respondents - Scheme of the 1996 Act for enforcement of New York Convention awards - Malaysian law of public policy while deciding the challenge to the foreign award by Malaysian Courts - foreign award vis-a-vis Public Policy of India.
Limitation for filing an enforcement/execution petition of a foreign award Under Section 47 of the 1996 Act - HELD THAT:- On 10.07.2014, a show cause notice was issued to the Respondents, raising a demand of US $ 77 million, being the Government's share of Profit Petroleum under the PSC. It was contended that the cause of action for filing the enforcement petition Under Sections 47 and 49 arose on 10.07.2014. The enforcement petition was filed on 14.10.2014 i.e. within 3 months from the date when the right to apply accrued - the petition for enforcement of the foreign award was filed within the period of limitation prescribed by Article 137 of the Limitation Act, 1963.
Thus, there are sufficient grounds to condone the delay, if any, in filing the enforcement/execution petition Under Sections 47 and 49, on account of lack of clarity with respect to the period of limitation for enforcement of a foreign award.
Scheme of the 1996 Act for enforcement of New York Convention awards - HELD THAT:- The grounds for refusing enforcement of foreign awards contained in Section 48 are exhaustive, which is evident from the language of the Section, which provides that enforcement may be refused "only if" the Applicant furnishes proof of any of the conditions contained in that provision 12 - The enforcement court is not to correct the errors in the award Under Section 48, or undertake a review on the merits of the award, but is conferred with the limited power to "refuse" enforcement, if the grounds are made out.
If the Court is satisfied that the application Under Section 48 is without merit, and the foreign award is found to be enforceable, then Under Section 49, the award shall be deemed to be a decree of "that Court". The limited purpose of the legal fiction is for the purpose of the enforcement of the foreign award. The concerned High Court would then enforce the award by taking recourse to the provisions of Order XXI of the Code of Civil Procedure.
Whether the Malaysian Courts were justified in applying the Malaysian law of public policy while deciding the challenge to the foreign award? - HELD THAT:- The Malaysian Courts being the seat courts were justified in applying the Malaysian Act to the public policy challenge raised by the Government of India.
The enforcement court would, however, examine the challenge to the award in accordance with the grounds available Under Section 48 of the Act, without being constrained by the findings of the Malaysian Courts. Merely because the Malaysian Courts have upheld the award, it would not be an impediment for the Indian courts to examine whether the award was opposed to the public policy of India Under Section 48 of the Indian Arbitration Act, 1996. If the award is found to be violative of the public policy of India, it would not be enforced by the Indian courts. The enforcement court would however not second-guess or review the correctness of the judgment of the Seat Courts, while deciding the challenge to the award.
Whether the foreign award is in conflict with the Public Policy of India? - HELD THAT:- The enforcement of foreign award would be refused Under Section 48(2)(b) only if such enforcement would be contrary to (1) fundamental policy of Indian law; or (2) the interests of India; or (3) justice or morality. The wider meaning given to the expression "public policy of India" occurring in Section 34(2)(b)(ii) is not applicable where objection is raised to the enforcement of the foreign award Under Section 48(2)(b) - Moreover, Section 48 of the 1996 Act does not give an opportunity to have a 'second look' at the foreign award in the award-enforcement stage. The scope of inquiry Under Section 48 does not permit review of the foreign award on merits. Procedural defects (like taking into consideration inadmissible evidence or ignoring/rejecting the evidence which may be of binding nature) in the course of foreign arbitration do not lead necessarily to excuse an award from enforcement on the ground of public policy.
The amended Section 48 would not be applicable to the present case, since the court proceedings for enforcement were filed by the Respondents-Claimants on 14.10.2014 i.e. prior to the 2016 Amendment having come into force on 23.10.2015.
The enforcement of the foreign award does not contravene the public policy of India, or that it is contrary to the basic notions of justice.
Application disposed off.
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2020 (9) TMI 1174
Forgery - debit notes created by the Respondents were totally fraudulent - amounts owed by the Appellants to the Respondents or not - applicability of Section 195(1)(b)(i) as well as Section 195(1)(b)(ii) of the CrPC. - HELD THAT:- There is no doubt that realising the difficulties in their way, the Appellants suddenly changed course, and applied to the Magistrate vide application dated 09.05.2011 to convert what was a properly drafted application under Section 195 read with section 340 of the CrPC, into a private complaint. A reading of the two complaints leaves no manner of doubt that they have been drafted keeping the ingredients of Sections 191 and 192 of the IPC alone in mind – the only argument from the Appellants now being that since certain debit notes were forged prior to their being introduced in the court proceedings, not only would the ratio in IQBAL SINGH MARWAH & ANR. VERSUS MEENAKSHI MARWAH & ANR. [2005 (3) TMI 750 - SUPREME COURT] apply, but also that the ingredients of the “forgery” sections of the IPC have now been made out. While it is important to bear in mind that in genuine cases where the ingredients of forgery as defined in Section 463 of the IPC have been made out, and that therefore, a private complainant should not be left remediless, yet it is equally important to bear in mind the admonition laid down in an early judgment of this Court.
Whether the “forging” of the debit notes, so strongly relied upon by Shri Mishra as being offences under Sections 463 and 464 of the IPC, can at all be said to attract the provisions of these Sections? - HELD THAT:- Even if we are to put aside all the averments made in the two complaints (which clearly attract the provisions of Sections 191 and 192 of the Penal Code), and were to concentrate only on the debit notes that are said to have been “created” by the Respondents, it is clear that the debit notes were not “false documents” under Section 464 of the IPC, inasmuch they had not been made with the intention of causing it to be believed that they were made by or under the authority of some other person. Since this basic ingredient of forgery itself is not made out, none of the sections that are sought to be relied upon in Chapter XVIII of the IPC can thus be said to be even prima facie attracted in the facts of this case.
Writ petitions that were filed against this order have been dismissed by the impugned judgment - Appeal disposed off.
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2020 (9) TMI 1171
Mr. Satya Pal Jain, Additional Solicitor General of India with Mr. Saurav Goyal, Advocate accepts notice on behalf of respondent no. 1. He prays for some time to assist the court - Mr. Aman Bahri, Addl. A.G. Haryana also prays for time to seek instructions and assist the court.
Till then no coercive action shall be taken.
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2020 (9) TMI 1163
Grant of regular bail - serious allegations of siphoning of student scholarship funds, cheating, criminal breach of trust, criminal misconduct, forgery, conspiracy and corruption etc. are levelled against a government official - HELD THAT:- It is well settled that grant of bail involves judicious exercise of discretionary power of the Court, wherein not only the nature of accusations, severity of punishment, nature of evidence, apprehension of influencing the witnesses, tampering with evidence, possibility of accused standing the trial are some of the factors to be considered, but the valuable right of liberty of an individual and interest of society in general also have to be balanced. r 5(i). In the instant case, FIR was registered on 16.11.2018. Pursuant to notification dated 20.03.2019, case was entrusted to CBI and was registered by it on 07.05.2019. Petitioner was arrested on 03.01.2020 and w.e.f. 08.01.2020, he is in judicial custody.
Present is not a case where multiple FIRs were registered with respect to different institutes. One FIR has been registered involving all the private educational institutes. To obviate the compulsion under Section 167(2) Cr.PC, final report has been presented on 30.03.2020 under Section 173(2) Cr.PC only regarding K.C. Group of Institutions, Pandoga, District Una by keeping the investigation open under Section 173(8) Cr.PC. - Even in this challan, twelve persons have been named as accused, out of which six belong to Directorate of Higher Education, Himachal Pradesh, including the petitioner. Five accused persons, who were Drawing & Disbursing Officers posted in different capacities in the Directorate of Higher Education at the relevant time and responsible for various transactions in issue, have not been arrested. This is despite the fact that all of them are facing the same FIR for the same offences and it has been alleged that all of them had conspired together.
Hon'ble Apex Court in [2013 (5) TMI 920 - Supreme Court], titled Nimmajadda Prasad Versus CBI, while observing that white collar crimes were on the rise affecting development of the country as a whole, held that while granting bail, the Court has to keep in mind the nature of accusations, nature of evidence in support thereof, severity of punishment on conviction, character of accused, circumstances peculiar to the accused, reasonable possibility of securing presence of accused at trial, reasonable apprehension of witnesses being tempered with, larger interests of public/State and other similar considerations. At this stage, it is not necessary to establish guilt of accused beyond reasonable doubt. Economic offences need to be viewed seriously.
Present is a case where 22 institutes are involved in one FIR and not in multiple FIRs. Charge-sheet under the FIR qua one of the institute already stands filed through by keeping the investigation open under Section 173(8) Cr.PC. This was to obviate the compulsion under Section 167(2) Cr.PC. - Even if present is a case of socio-economic offence of serious magnitude and respondent may have strong evidence about involvement of the petitioner, yet 'gravity can only beget length of sentence' provided in law, after the trial. Grant of bail cannot be thwarted merely by asserting that offence is grave and therefore, petitioner should remain in custody till the investigation of all 22 private educational institutes is completed, regarding timeline of which, respondent apparently has no clue.
The offending acts are already complete and reflected as such in the records. As per status report, voluminous record has already been seized by CBI during raids conducted by it in 22 private institutes, though investigation is still going on. In such situation, no purpose is going to be served by keeping the petitioner in judicial custody - Investigation should not be carried out indefinitely and forever without any regard to time, considering the interests of all involved. Nonetheless it is open to the respondent to continue to investigate into the matter, however, for this reason, petitioner cannot be permitted to incarcerate as a pre-trial prisoner. His liberty enshrined under Article 21 of the Constitution is also required to be protected.
It cannot be presumed that petitioner will flee justice or will influence the investigation/witnesses. No material in support of these apprehensions has been placed on record. As per status report, CBI has already conducted searches at 22 private educational institutions and seized voluminous physical and electronic record. Premises of petitioner have also been searched. Petitioner is in custody w.e.f. 03.01.2020. He has already been suspended from government service. It is not disputed that he is a local resident and owns immovable properties in the State. The apprehensions expressed by respondent can be taken care of while imposing conditions for enlargement on bail. In the given facts and circumstances of the case, continued custodial interrogation of the petitioner is not necessary Enlargement of petitioner on bail subject to stringent conditions will not pose any threat to society.
The present bail petition is allowed and the petitioner is ordered to be released on bail subject to conditions imposed.
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2020 (9) TMI 1160
Violation of the Election Code of Conduct - Offences under Section 123(3) of the Representation of the People Act, 1951 - Whether when a complaint has been lodged and/or information furnished of an offence to a Station House Officer, the Station House Officer can himself seek for permission to investigate a non-cognisable offence or as a corollary to it, it is only the informant/complainant, who is to seek permission for investigation from the Magistrate? - HELD THAT:- The Magistrate enquired with the Informant, perused the requisition and found that there is a prima facie case made out, requiring permission to be granted for investigation - Even otherwise, since the Informant herein is a public servant acting or purporting to act in the discharge of his official duties as belonging to the flying squad deputed by the Election Commission, there was no need for sworn statement of the Informant to be recorded, since the Provisio to section 200 exempts the same - thus, it cannot be said that the order permitting the investigation has been passed only on the basis of the requisition sent by the Investigating Officer. The same has been passed after the Investigating Officer having referred the Informant to the Magistrate, who having enquired with the Informant passed the order.
Whether the complaint as regards violation of Section 123(3) of the Representation of Peoples Act, 1951 is limited to the candidate or does it extend to any third party? - Whether the violation of Section 123(3) of the Representation of Peoples Act, 1951 would amount to a penal offence making such person liable for criminal prosecution? - Whether promotion of enmity or hatred is a sine qua non for invoking section 125 of the Representation of Peoples Act, 1951 - HELD THAT:- With the advent of democracy and the election process there have been several aspects relating to the elections, which have resulted in litigations. With the passage of time, laws have been evolved to regulate the electoral system. These electoral laws are aimed at maintaining a level playing field, so no one gets an undue advantage over the same - Various laws over a period of time have restrained or regulated various actions on the part of the candidate or his agent or representatives. Generally speaking, any violation of these electoral laws was regarded to be corrupt practices. Essentially any corrupt practices used by the candidate to get an unfair advantage would result in disqualification of the candidate.
The R.P Act does not contemplate any action against the agent or any other person, who is acting with the consent of the candidate. As stated above, any action for violation of Section 123 of the R.P. Act leads back only to the candidate, if proved resulting in disqualification of the candidate or voiding the result of the election - Similar provisions as under Section 123(2) and (3) of the R.P. Act are not available under Chapter III Part VII relating to Electoral Offenses. There is no provision which makes a corrupt practice under Section 123(2) or (3) of the R.P. Act as an offence under the said Chapter. Thus, no criminal prosecution can be laid on account of the violation of Section 123 of the R.P. Act against any person. Of course, if there is any violation of a penal statute or special statute, separate prosecution could always be laid - An action for violation of Section 123 of the Representation of Peoples Act, 1951, can only be initiated against the candidate seeking for his/her disqualification and voiding of his/her result in the event of such candidate having returned successfully, hence no action can be taken against the agent or a person authorised by him for such corrupt practice in terms of section 123 of the Representation of Peoples Act, 1951 - Violation of Section 123 of the Representation of Peoples Act, 1951 in the present scheme of the legislation would amount to corrupt practice, providing a cause of action for filing of an election petition under Section 81 read with Section 100 and 101 of the Representation of Peoples Act, 1951; there can be penal action initiated by way of criminal prosecution.
Whether in the present case on the basis of the allegation made in the complaint can it be prima facie concluded that the Petitioner has committed an offence under Section 171F of the IPC by exercising undue influence on the persons who had gathered for election rally in terms of Section 171C of the IPC? - HELD THAT:- The exercise of undue influence in terms of Section 171C would only arise in the event of a person threatening any candidate or voter, or any person in whom a candidate or voter is interested, with injury of any kind or induces or attempts to induce a candidate or voter to believe that he or any person in whom he is interested will become or will be rendered an object of divine displeasure or spiritual censure - That means to say that there have to be statements made or threat given to a voter that if he were to vote in any particular manner, he may incur displeasure of the divine or censure by spiritual censure. Unless these two ingredients are satisfied, there cannot be undue influence said to be used and therefore an offence under Section 171F could not be said to be committed - As regards undue influence, if it is to be contended that the speech of the Petitioner amounted undue influence it has to satisfy the dual requirement under Section 171C of the IPC. An ex-facie reading of the complaint does not make any allegation to satisfy the requirement of Section 171C of the IPC. Thus, when the basic requirement is not fulfilled, the criminal law cannot be set in motion, as regards an action, which does not amount to a penal offence.
Thus, in the present case on the basis of the allegation made in the complaint it cannot be prima facie concluded that the Petitioner has committed an offence under Section 171F of the IPC by exercising undue influence on the persons who had gathered for an election rally in terms of Section 171C of the IPC.
What is the procedure to be followed by the Magistrate when a B-report is filed? - Can a Magistrate suo moto reject the B-report without notice being ordered on the complainant? - Whether the Magistrate can suo moto take cognisance of the offence without issuance of notice to the complainant? - HELD THAT:- This procedure has been enshrined in order to protect a citizen of the Country from unnecessary harassment after submission of the B-report, when a B-report has been submitted, it is generally accepted. It is only in exceptional cases, where the B-report has been filed and the complainant is not agreeable to the B-report that the enquiry is conducted under Section 200 of Cr.P.C.; in a proceedings pertaining to non- cognisable offences, the station house officer is not entitled to take cognisance of the non- cognisable offence, it is only on being directed by the jurisdictional Magistrate that he conducts an investigation to enquire as to whether there is prima facie offence made out; once the investigation leads an adverse report in terms of no offence having been made out, it is only the complainant, who can find fault with such investigation or B-report and requests the Magistrate to continue with the matter on the basis of the complaint filed by finding out defects in the investigation and/or by establishing otherwise that there is a prima facie case made out for the prosecution of the accused. In the present case, no notice was issued to the complainant, the Magistrate has rejected B- report without anyone objecting to the B-report and has taken cognisance of the alleged offence suo moto, such a procedure is neither contemplated nor sanctioned under the provisions of Criminal Procedure Code - no criminal prosection can be laid for violation of Section 123 of the R.P. Act. As answered to the points above, I am of the considered opinion that the complaint as such does not make out any case under Section 125 of the R.P. Act or Section 171F of IPC. Thus the question of setting the criminal law into motion on the basis of the complaint which does not prima facie make out an offence, is not sustainable.
What is the procedure to be followed by the Magistrate before issuance of summons to a accused, who is not residing within its jurisdiction? - HELD THAT:- No such summons could be issued without first examining the complainant and his witness if any on oath in terms of Section 200 of the Cr.P.C. Since in the present case, the Petitioner is not resident within the territorial jurisdiction of the Magistrate, the above procedure ought to have been complied with - The registration of complaint and issuance of summons to the accused is violative of Section 202(1) and 202(1) proviso (b) of the Cr.P.C. 11.5. The question that would arise in regard to the above contention is what is the enquiry that the Magistrate would have to conduct. There would have to be an order passed under Section 202(1) of the Cr.P.C. to indicate as to why process is being issued by the Magistrate to an accused who is not residing within the jurisdiction of that Court and for this purpose, sworn statement of the complainant as also the affidavit evidence if any of the complainant's witnesses could be recorded leading to an order by the Magistrate based on his satisfaction that there are sufficient grounds for issuing summons to such accused residing outside its jurisdiction. Such order not having been passed by the magisterate, the summons could not have been so issued.
Whether the Magistrate could have at the stage of taking cognizance relied upon the video recording in a compact disk, without it being accompanied by a certificate under Section 65-B of the Indian Evidence Act? - HELD THAT:- The electronic document cannot be considered to be evidence during trial without a certificate under Section 65-B of the Indian Evidence Act, being accompanied with it. In the present case, admittedly there is no trial, which has commenced. Thus, there would be no requirement of Section 65-B certificate at the stage of examination by the Magistrate whether to take cognisance or not, a Magistrate can always look into any electronic evidence, even if unaccompanied by a certificate under Section 65-B of the Indian Evidence Act for the purpose of taking cognisance or not of an offence.
Is this a fit and proper case for this Court to interfere in the orders passed by the Magistrate under Section 482 of Cr.P.C.? - HELD THAT:- It cannot be said that violation of Section 123 of the R.P. Act would require the initiation of criminal prosecution, no allegation or offence in terms of Section 125 within Chapter-III of Part-VII of the R.P. Act, 1951 is made out. The ingredients of the offences under Section 171C and 171F of the IPC have also not been made out. Hence, prima facie there is no offence, which can be said to have been committed by the Petitioner requiring prosecution. Of course, this does not prevent any action to be taken against the candidate for violation of Sections 123 of the R.P. Act.
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2020 (9) TMI 1150
Sanction under Section 197 Cr.P.C. - Allegation is that is said to be the kingpin involved in this crime and is since absconding - finding that there was a prima facie case made out against the appellant, the Special Judge refused to discharge the appellant from the offences under the IPC - HELD THAT:- A number of judgments have held that the standard of proof in a departmental proceeding, being based on preponderance of probability is somewhat lower than the standard of proof in a criminal proceeding where the case has to be proved beyond reasonable doubt.
In view of the detailed CVC order dated 22.12.2011, the chances of conviction in a criminal trial involving the same facts appear to be bleak. We, therefore, set aside the judgment of the High Court and that of the Special Judge and discharge the appellant from the offences under the Penal Code.
Appeal allowed - decided n favor of appellant.
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2020 (9) TMI 1108
Dishonor of Cheque - Time Limitation - decree for money in favour of the respondent was confirmed - HELD THAT:- It is true that the cheques were presented to the Bank for encashment after passage of hardly seven years, since the date of delivery. As per Section 84(2) of the NI Act, the reasonableness of time to be taken for presentation from the date of issue of cheque, shall be determined with due regard to the nature of the instrument, the banking and trade usage and also the facts of each particular case.
In this case, the cheques were postdated to 10.12.2017. They became payable only from the dates endorsed therein. Even though the dates of presentation and dishonour were not specifically pleaded, it is clear from the averments made in the plaint that the cheques were presented within the period of two months since they became payable - thus notwithstanding that the issue of cheques was as early as in 2001, the presentation made in 2007 in accordance with proviso (a) to Section 138 cannot be said to offend Section 84 (2) of NI Act.
Review petition partly allowed.
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2020 (9) TMI 1067
Reduction in the sentence awarded - Smuggling - truck was carrying illicit drugs - offences punishable under Sections 21(c) and 25 of the NDPS Act - HELD THAT:- This Court is of the view that there are certain mitigating circumstances which are required to be considered. The petitioner was the only male member of his family, which comprises of his widowed mother, his wife a daughter. It is also relevant to note that the appellant is not involved in any other case and has no criminal antecedents - It is also material to note that in BALWINDER SINGH VERSUS ASSTT. COMMISSIONER, CUSTOMS & CENTRAL EXCISE [2005 (2) TMI 127 - SUPREME COURT], 175 Kgs of Heroin and 39 Kgs of Opium of foreign origin was recovered from the petitioner. However, the Court noted that the petitioner “was convicted of this offence for the first time” and considering the facts and circumstances reduced the sentence awarded.
The appellant has been in custody since 04.02.2010 and has served more than ten years and six months of his prison sentence. His conduct in jail is also reportedly satisfactory. Considering the above, the sentence awarded to the appellant is reduced from twelve years rigorous imprisonment to the sentence already served. The appellant shall pay the fine of ₹1,00,000/- as imposed and in default of which shall serve simple imprisonment for a further period of three months instead of one year as directed by the impugned order dated 29.03.2016.
Appeal allowed in part.
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2020 (9) TMI 1066
Dishonor of Cheque - On behalf of respondent no. 2, it is argued that the petitioner does not deserve judicial discretion in her favour because despite Court's order in all the three cases, she did neither pay the amount of fine, nor did she pay compensation to the respondent no. 2, who is an old person of 65 years of age - HELD THAT:- Sentencing is an area which troubles the Court more than the trial itself. The balance is always made between the conflicting interests. It is this area in which there is large discretion given to the Judges. The purpose of sentencing need not be reiterated. The person who has incurred loss due to offence is also required to be compensated and it is perhaps because of this reason, that in all the three cases, the petitioner was required to pay compensation to respondent no. 2, but, she did not pay even a part of it. This is not a small amount. In some cases, the amount of compensation is 6,70,000/-.
This Court is of the view that since the petitioner has not paid even a part of the compensation, as directed by the Court, she does not deserve any judicial discretion for permitting the sentences imposed upon her to run concurrently and accordingly, this Court is of the view that the learned Court below on different premises, but, rightly rejected the application filed under Section 427 of the Code - Petition dismissed.
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2020 (9) TMI 1065
Maintainability of petition - Rejection of application for summoning the employee of the respondent-bank - denial of fair trial - Section 311 of the CrPC. - HELD THAT:- In the present case, it is apparent from the record that the petitioner had not established that for which purpose he wanted to summon the employee of the respondent-Bank. It had also not been stated by the petitioner that which bank document he wanted to summon. The petitioner had also not established the essentiality of the respondent-bank employee and document to be summoned to prove his defence. Therefore, the trial Court has rightly rejected the application of the applicant lacking the reasonable cause for calling the witness as well as documents.
Petition dismissed.
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2020 (9) TMI 1064
Dishonor of Cheque - validity of summoning order - HELD THAT:- The law regarding sufficiency of material which may justify the summoning of accused and also the court's decision to proceed against him in a given case is well settled. The court has to eschew itself from embarking upon a roving enquiry into the last details of the case. It is also not advisable to adjudge whether the case shall ultimately end in conviction or not. Only a prima facie satisfaction of the court about the existence of sufficient ground to proceed in the matter is required.
The submissions made by the applicant's counsel call for adjudication on pure questions of fact which may be adequately adjudicated upon only by the trial court and while doing so even the submissions made on points of law can also be more appropriately gone into by the trial court in this case. This Court does not deem it proper, and therefore cannot be persuaded to have a pre-trial before the actual trial begins. A threadbare discussion of various facts and circumstances, as they emerge from the allegations made against the accused, is being purposely avoided by the Court for the reason, lest the same might cause any prejudice to either side during trial.
As requested by the counsel, it is directed that the accused may appear before the court below within a period of one month from today through the representing counsel and move an application seeking compounding of offence through compromise. On such application being moved the concerned court may take adequate steps in accordance with law in this regard and shall provide further opportunity to the accused which shall not exceed a maximum period of four months from today to make an endeavour in this direction -
In the aforesaid period of five months or till the decision given in the light of the application, whichever is earlier, no coercive measures shall be adopted against the accused.
Application disposed off.
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