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Indian Laws - Case Laws
Showing 41 to 60 of 87 Records
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2020 (9) TMI 1063
Condonation of delay in filing appeal - Dishonor of Cheque - time limitation prescribed under Section 142 of the N.I. Act - power of Magistrate to condone the delay - HELD THAT:- As is well-known Section 138 of the N.I. Act lays down that timelines for issuing notice of repayment and if no such repayment is made for filing complaint before the Magistrate when a cheque upon its presentation has been dishonoured - What emerges from the said provision is that the Magistrate would not take cognizance of a complaint which is not made within one month of the date on which the cause of action in terms of Clause (c) of the proviso to Section 138 has arisen but the Magistrate has the discretion to take cognizance even beyond such period, provided the complainant satisfies the Court that he had sufficient cause for not making a complaint within such period.
The provisions of Section 142 of the N.I. Act are akin to Section 473 of the Criminal Procedure Code which while providing for limitation for taking cognizance of certain offences, saves the power of the Court upon being satisfied of the sufficient cause for taking cognizance beyond the period of limitation.
Impugned order set aside - petition allowed.
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2020 (9) TMI 1062
Dishonor of Cheque - invocation of revisionary jurisdiction under Section 397 read with Section 401 of the Code of Criminal Procedure - HELD THAT:- The continuation of these proceedings will not suffice any fruitful purpose whatsoever. Therefore, I am of the considered opinion that in view of the compromise, this is a fit case where the inherent jurisdiction of the High Court under Section 482 of the Code of Criminal Procedure read with 147 of Negotiable Instruments Act, should be invoked to compound the offence and consequently to quash the consequent proceedings.
The learned trial Court shall release all the amount in the manner discussed here-in-above on the production of certified copy of this judgment by respondent. In view of the above statement of the learned counsel for the petitioner, the respondent/complainant is entitled to receive the compensation amount of ₹ 3,34,000/-. In case, the compensation amount is deposited with the Trial Court or put in the Fixed Deposit, then all the interest accrued, thereupon shall also be given to the complainant. However, if there is short fall in deposit of compensation then such short fall shall be met with by the convict/petitioner on or before 31.3.2020. It is made clear that the interest, if any, accrued upon the fixed deposit shall not be treated towards compensation and total compensation amount shall have to be deposited by the convict/petitioner - the petitioner/convict shall deposit 15% of the cheque amount before the H.P. State Legal Services Authority, Shimla. The compensation awarded is ₹ 3,34,000/- therefore, 15% of the same comes to ₹ 50,100/-.
Criminal Revision is disposed of.
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2020 (9) TMI 1061
Dishonor of Cheque - Validity of summon order - HELD THAT:- The submissions made by the learned counsel for applicant 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 - there are no justification to quash the complaint or the summoning order or the proceedings against the applicants arising out of them as the case does not fall in any of the categories recognized by the Apex Court which may justify their quashing - prayer for quashing the same is refused as there are no abuse of the Court's process either.
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. Thereafter, the court shall pass necessary orders within a period of five months from today.
Application disposed off.
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2020 (9) TMI 1029
Bail Application - Dishonor of Cheque - case of applicant is that applicant is the only person who is indulge in fraudulent activities and also cheated the informant, but could not explain the proceeding initiated against the informant under Section 138 of Negotiable Instruments Act which is also pertaining to receiving money for providing job - HELD THAT:- Considering the facts and circumstances of the case and also perusing the material on record, without expressing any opinion on the merit of the case, let the applicant -Ashish Sharma, involved in case crime No. 366 of 2019, under Sections 420, 467, 468, 471, 406, 504 and 506 IPC, police station -Prem Nagar, District -Jhansi be released on bail on his furnishing a personal bond and two local sureties each of the like amount to the satisfaction of court concerned. It is further provided that this bail order available on the official website of the High Court will be taken to be the authentic one and certified copy shall be submitted before that court concerned as soon as it is issued.
Bail allowed subject to conditions imposed.
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2020 (9) TMI 1028
Dishonor of Cheque - Acquittal of accused - Offence u/s 138 - Presumption u/s 139 - Advance given for purchase of Tractor - delivery of tractor and subsequent issue of cheques are in dispute - HELD THAT:- It is not in dispute that the accused was intending to purchase a Tractor, as such, he approached the complainant in that regard. It is also not in dispute that in connection with purchase of a Tractor, the accused paid in total a sum of ₹ 20,000/- to complainant as an advance amount towards the purchase value of the Tractor. In that connection, the accused himself has made a suggestion to PW-1 in his cross-examination, which suggestion has been admitted as true by PW-1/complainant. Therefore, it is established that the accused had approached the complainant for purchasing a Tractor from him and in that regard, had paid an advance amount - primarily when the issuance of a cheque is established, then, a presumption arises in favour of the drawer of the instrument or holder in due course of the instrument about there being in existence a legally enforceable debt. However, the said presumption is rebuttable. In the instant case, the said aspect has to be seen with two dimensions. First, whether such a presumption has been appropriately rebutted by the accused. Second, whether the complainant was the payee of the instrument or its holder in due course.
The presumption about the existence of a legally enforceable debt stands in favour of the complainant. However, the said presumption is rebuttable. In order to rebut the said presumption, though it is not necessary that the accused has to necessarily enter the witness box and lead the evidence, it is suffice if he could able to rebut the presumption even in the cross-examination of the complainant (PW-1) or through other cogent evidence. In the instant case, admittedly, the accused has not entered the witness box by himself nor examined any witnesses from his side. He has not even produced any documents and got them marked as exhibits from his side. However, he has subjected the complainant to a detailed cross-examination.
In the instant case, as being repeatedly observed, the complainant himself has categorically stated that the complaint was filed in his personal capacity. As such, without looking into any other aspect, it can be said that the cheque was issued to a firm which has not been made over to or endorsed to anyone including the present complainant and the present complaint is instituted by the complainant in his personal capacity. As such, the very complaint itself is not maintainable.
The Trial Court having observed these aspects, though with other reasons, since has arrived at a correct conclusion of acquitting the accused for the alleged offence, there are no reason to set aside the said judgment of acquittal and to interfere in the judgment under appeal - appeal dismissed.
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2020 (9) TMI 932
Dishonor of Cheque - issuance of summons - primary ground of challenge as contended by the learned counsel for the petitioner is that the petitioner was not the Director when the underlying contract was executed between the respondent No.1 and respondent No.2, nor when the cheques were issued and when they were presented, inasmuch as the petitioner had resigned from the respondent No.2 much before, on October 27, 2010.
HELD THAT:- This Court is conscious of the settled position of law that the High Court while entertaining a petition of this nature shall not consider the defence of the accused or conduct a roving inquiry in respect to the merits of the accusation/s but if the documents filed by the accused / petitioner are beyond suspicion or doubt and upon consideration, demolish the very foundation of the the accusation/s levelled against the accused then in such a matter it is incumbent for the Court to look into the said document/s which are germane even at the initial stage and grant relief to the person concerned under Section 482 CrPC in order to prevent injustice or abuse of process of law. In my opinion the present petition would fall within the aforesaid parameters.
The proceedings initiated by the respondent No.1 against the petitioner under Section 138 of the NI Act, pending before the learned Metropolitan Magistrate, Saket Courts, and the resultant proceedings including summons issued thereon are quashed - Petition allowed.
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2020 (9) TMI 898
Dishonor of Cheque - uncontroverted document i.e. Form-32 to prove resignation of Director - case of petitioner is that that despite the petitioner having resigned as a Director (independent and non-executive) from the accused Company on 22nd September, 2010, the petitioner has been arrayed as an accused on the basis of a dishonoured cheque dated 1st June, 2014 - alleged offences punishable under Sections 138 r/w 141 and 142 of the Negotiable Instruments Act - HELD THAT:- A perusal of Form – 32 shows that the petitioner had resigned from the accused Company on 22nd September, 2010. It is pertinent to note, that the said document, Form – 32 has not been controverted by the learned counsel for the respondent No.2. Learned Counsel states that he has no document or any material to show that the petitioner, post his resignation, was in any way concerned with the said accused Company. The cheque dated 1st June, 2014, which was dishonoured, was issued by the accused Nos.1 and 2 Company, post the petitioner's resignation, forms the basis of the complaint.
The petitioner has relied on the certified copy of Form – 32, which shows the date of resignation as 22nd September, 2010, almost 4 years prior to issuance of the cheque in question - Also as noted above, the said document has not been controverted by the respondent No.2 nor any document is brought on record to show that the petitioner continued to be concerned with the affairs of the Company, post his resignation in 2010.
The continuation of the proceedings qua the petitioner will clearly be an abuse of the process of the Court - petition allowed.
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2020 (9) TMI 839
Release of Passport - order of declaration of proclaimed person not present - Section 10(3) (h) of the Passports Act, 1967 - opportunity of hearing not provided to petitioner - HELD THAT:- In the writ petition Respondent No.1 had impugned the seizure memo dated 23.04.2019 (Annexure P.11) and letter dated 17.05.2019 (Annexure P.14) conveying the reason for the action. Ld. Single Judge has rightly concluded that not only was the impugned action void and illegal being violative of the principles of natural justice even the reason furnished for impounding that she had been declared a proclaimed person was non- existent.
The passport had not been impounded under Section 10(3) (e) on the ground of proceedings in respect of a criminal offence pending against respondent No.1 which is the ground pressed by the appellant to justify its impounding -
It is well settled that the validity of an administrative order has to be justified solely by the reasons mentioned therein. On that touchstone the impugned orders cannot sustain.
Appeal dismissed - However the costs are reduced to ₹ 10,000/- from ₹ 1,00,000/-.
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2020 (9) TMI 739
Dishonor of Cheque - appellant submits that since the date of service of notice is not mentioned in the complaint so the necessary ingredients for making section 138 of Negotiable Instruments act are lacking - HELD THAT:- Although the service of notice is not mentioned in the complaint, on this ground the summoning order could not be quashed. The question as to whether the complaint is premature would be open to be decided by trial court. So in these circumstances, it cannot be said that no offence is made out against the applicant. All the submission made at the bar relates to the disputed question of fact, which cannot be adjudicated upon by this Court in exercise of power conferred under Section 482 Cr.P.C.
The prayer for quashing the abovesaid summoning order and proceedings is refused - However, it is provided that if the applicant appear and surrender before the court below within 30 days from today and applies for bail, then the bail application of the applicant be considered and decided expeditiously in view of the settled law laid by Hon'ble Supreme Court. For a period of 30 days from today or till the disposal of the application for grant of bail whichever is earlier, no coercive action shall be taken against the applicant. However, in case, the applicant do not appear before the Court below within the aforesaid period, coercive action shall be taken against him - For a period of 30 days from today, non-bailable warrant issued against the applicant, shall be kept in abeyance.
Application disposed off.
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2020 (9) TMI 738
Adjudication of testimonial worth of prosecution evidence - Dishonor of Cheque - Submission is that the Apex Court decision has taken cognizance of the heavy pendency of the cases in the courts which may result ultimately in the chocking of criminal justice system - HELD THAT:- 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.
If the decision of the Court given in the light of the application does not conclude the proceedings against the accused and he is further required to appear and face the trial, the court shall be at liberty to proceed in accordance with law against the accused and take all necessary steps and measures to procure his attendance as the law permits - In the aforesaid period of four months or till the decision given in the light of the application, whichever is earlier, no coercive measures shall be adopted against the accused applicant.
Application disposed off.
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2020 (9) TMI 694
Dishonor of Cheque - acquittal of the accused - legally enforceable debt or not - Section 138 of Negotiable instruments Act, 1881 - HELD THAT:- If a cheque is issued in terms of an agreement and the same is dishonored, the amount of the cheque, constitute legally enforceable debt, as the agreement is legally enforceable between the parties - When the complainant is successful in proving the existence of legally recoverable debt and issuance of Ex. P1-cheque and also dishonor of the same, presumption under Sections 118 and 139 of the Act comes into operation and it is for the accused to rebut these legal presumptions.
In the present case, accused has not made any attempt to rebut the presumption. When he admitted the agreement-Ex.P6 and also issuance of the cheque Ex. P1, it cannot be said that there is no legally recoverable debt. Even though accused cross examined PW1 through his counsel and got examined himself as DW1, nothing has been placed before the Court to rebut the presumption or to substantiate the contention that he has not taken over the business of the company nor he has acted as managing director or that he has not availed loan either from KSFC or from SBI or his contention that his signatures were obtained by the complainant on the blank papers and documents - there are no bonafides in the contentions raised by the accused in his defence.
The opinion formed by the trial Court that the agreement in question is dated 09.02.2005, whereas the cheque in question dated 10.05.2007 and therefore there was no legally enforceable debt at the time of issuance of cheque, cannot be accepted. The terms and conditions in Ex. P6 itself makes it clear that the accused had agreed to make payment in installments and the manner in which the said payments are to be made, are clearly explained and agreed between the parties in the agreement - the finding of the trial Court that there was no legally recoverable debt and acquitting the accused on the said ground is illegal and perverse.
The impugned judgment of acquittal passed by the trial Court is set aside. The accused who is the respondent herein is convicted for the offence punishable under Section 138 of the Act - Appeal allowed.
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2020 (9) TMI 638
Dishonor of Cheque - legal presumption under sections 118 and 139 of Negotiable Instrument Act - In the absence of specific evidence led by defendant qua maintainability of suit in terms of section 3 of H.P. Registration of Money Lenders Act, Whether the findings of Ld. Court below holding that the suit is barred by section 3 of H.P. Registration of Money Lender Act is legally sustainable?
HELD THAT:- Instant suit filed by the plaintiff cannot be held to be not maintainable under Section 3 of the H.P. Registration of Money Lenders Act as the defendant failed to prove that plaintiff falls within the definition of ‘money-lender’ under the Act and also failed to prove that various recovery suits instituted by the plaintiff pertained to that kind of loan which is included under the definition of loan in terms of the Act ibid. Therefore, findings in that regard of both the learned Courts below holding the suit to be not maintainable are quashed and set aside.
However, separate findings recorded by both the learned Courts below in dismissing the suit of appellant on merits are based upon correct interpretation of law and facts. Plaintiff has not been able to prove that he had loaned ₹ 3,00,000/- to the defendant or that towards satisfaction of this loan amount, the defendant had handed him the cheque in question. The defendant has explained the circumstances under which the blank cheque in question signed by him was handed over by his father to the plaintiff. Defendant has also highlighted various suspicious aspects regarding manipulations in the cheque including filling of the amount, account number, name and signature in different ink on the cheque besides apparent addition of zero in the amount mentioned therein. Defendant has successfully rebutted the presumption attached to the cheque under Sections 118 and 139 of the Negotiable Instruments Act.
There is no perversity or illegality in the concurrent judgments and decrees passed by learned Courts below in dismissing the suit of the appellant on merits.
Appeal disposed off.
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2020 (9) TMI 637
Dishonor of Cheque - offence punishable under Section 138 of Negotiable Instruments Act, 1881 - Whether the complainant has proved beyond reasonable doubt that the accused has committed an offence punishable under Section 138 of N.I.Act as alleged in the complaint? - HELD THAT:- In the instant case, apart from the legal presumption as per Section 139 of the N.I. Act coming into operation, the complainant through oral and documentary evidence has also shown that the supplies of goods to the accused were made and towards the same, the accused was in arrears of payment of money, towards which, he had issued the cheques at Exs.P-3 and P-4. Therefore, the finding of the Trial Court that PW-1 had no authority to lead evidence and the complainant failed to establish the existence of a legally recoverable debt proves to be an erroneous finding.
The complainant has proved that the accused towards legally enforceable debt, had issued two cheques at Exs.P-3 and P-4, which came to be returned due to the closure of the account of the drawer and the complainant has complied the statutory requirements of issuance of notice within time. The Trial Court judgment deserves to be set aside and the accused is held to be guilty of the offence punishable under Section 138 of the N.I. Act.
Appeal allowed.
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2020 (9) TMI 636
Application filed belatedly - matter is pending for more than five years - Dishonor of Cheque - application under Section 311 Cr.P.C. by petitioner/accused no.3 for recall of complainant for further cross examination was dismissed - principles of natural justice - HELD THAT:- The filing of application at belated stage which does not prejudice to the rights and contention of the petitioner, such application is delay tactics to get the trial delayed.There are no illegality and perversity in the impugned order dated 29.08.2020 passed by the Trial Court - petition dismissed.
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2020 (9) TMI 635
Grant of Anticipatory bail - Sections 420, 467 & 471 of Indian Penal Code, 1860 - Dishonor of Cheque - fake E-way bill - HELD THAT:- Though the counsel for the petitioner has vehemently contended that on the E-way bill generated by the petitionerGST was also deposited, however, learned counsel for the petitioner is not in a position to deny the document Annexure R-2/5 which is an electronically generated document which depicts that the E-way bill dated 04.01.2020 was rejected by the complainant on 05.01.2020. He is also not able to explain as to what was the necessity of depositing the GST on the rejected bill. The petitioner prima facie appears to have not only fabricated the E-way bill but has also, in order to create evidence, filed his GST returns on a bill which stood rejected by the complainant on the very next day.
The present petition is dismissed - It is, however, made clear that nothing observed herein is to be construed as an expression of opinion on the merits of the case.
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2020 (9) TMI 595
Appointment of sole arbitrator - Section 11(6) read with Seciton 11(12)(a) of the Arbitration and Conciliation Act, 1996 - HELD THAT:- The parties having entered into a business transaction; certain disputes have arisen between them which is to be resolved through arbitration. To that extent the parties are also in agreement. The issue for consideration however, is with regard to the appropriate clause that will operate providing for arbitration and will be applicable in the factual matrix herein. Since the applicant is before this Court invoking the arbitration clause in the purchase order (37 separate purchase orders), it is necessary to take note of the arbitration clause relied upon.
Since the transaction entered into between the parties and the dispute having arisen not being in dispute; further the above extracted arbitration clause being explicit; in a normal circumstance no other consideration would have been necessary in the limited scope for consideration in an application under Section 11 of the Act, 1996. However, in the case on hand the fact remains that undisputedly an Agreement dated 31.03.2018 is also entered into between the parties relating to the very same transaction which is referred to as the “Umbrella Agreement” by the respondent and as “Pricing Agreement” by the applicant. The said agreement also makes provision for resolution of disputes through arbitration in the manner as indicated therein.
When both, the purchase order as also the Pricing Agreement subsists and both the said documents contain the arbitration clauses which are not similar to one another, in order to determine the nature of the arbitral proceedings the said two documents will have to be read in harmony or reconciled so as to take note of the nature of the dispute that had arisen between the parties which would require resolution through arbitration and thereafter arrive at the conclusion as to whether the instant application filed under Section 11 of the Act, 1996 would be sustainable so as to appoint an arbitrator by invoking Clause7 of the purchase order; more particularly in a situation where the Arbitral Tribunal has already been constituted in terms of Clause23 of the agreement dated 31.03.2018.
When admittedly the parties had entered into the agreement dated 31.03.2018 and there was consensus adidem to the terms and conditions contained therein which is comprehensive and encompassing all terms of the transaction and such agreement also contains an arbitration clause which is different from the arbitration clause provided in the purchase order which is for the limited purpose of supply of the produce with more specific details which arises out of Agreement dated 31.03.2018; the arbitration clause contained in Clause23 in the main agreement dated 31.03.2018 would govern the parties insofar as the present nature of dispute that has been raised by them with regard to the price and the terms of payment including recovery etc. In that view, it would not be appropriate for the applicant to invoke Clause7 of the purchase orders more particularly when the arbitration clause contained in the Agreement dated 31.03.2018 has been invoked and the Arbitral Tribunal comprising of Mr. Jonathan Jacob Gass, Mr. Gourab Banerji and Ms. Lucy Greenwood has already been appointed on 22.06.2020.
he petitioner claiming to be aggrieved by the constitution of the Arbitral Tribunal has filed the suit seeking a decree of declaration that the arbitration clause23 of the Pricing Agreement dated 31.03.2018 is null and void and in that context has sought for the ancillary relief in the suit. In the said suit the petitioner has moved the ‘Notice of Motion’ seeking for an interlocutory order of injunction against the Arbitral Tribunal constituted by the ICC. The learned Single Judge through a detailed judgment dated 12.08.2020 has rejected the prayer for interim order and the ‘Notice of Motion’ has been dismissed. The petitioner claiming to be aggrieved by the said order had preferred an appeal to the Division Bench, which on consideration has declined grant of interim order though the appeal has been admitted for consideration.
Application dismissed.
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2020 (9) TMI 594
Dishonor of Cheque - vicarious liability of Director of being accused - no specific allegation as against the petitioner to attract the offences under Section 141 of NI Act - issuance of summons without application of mind - principles of natural justice - HELD THAT:- The Hon’ble Supreme Court of India in various cases repeatedly held that the complaint has to specifically say as to how and in what manner Director was responsible for the conduct of the business of the company. Unfortunately in the impugned complaint, the allegations did not satisfy the requirements of Section 141 of NI Act. That apart, the petitioner is being implicated as third accused who is inducted as Non Executive Director of the first accused company, therefore the petitioner is not being made responsible for the day to day affairs of the company and she cannot be held liable vicariously for the offence committed by the company. Therefore, in order to secure ends of justice and to prevent the abuse of process of court, this Court has to necessarily interfere with the proceedings in exercise of its jurisdiction under Section 482 of Cr.P.C.
These Criminal Original Petitions are allowed.
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2020 (9) TMI 593
Criminal revision petition - Dishonor of Cheque - petitioner /accused preferred this Criminal Revision Case on the grounds that the trial Court and the appellate Court have not appreciated the evidence properly - offence under Section 138 of the Negotiable Instruments Act - HELD THAT:- The scope of Criminal Revision under Section 397 r/w 401 CrPC is very limited and this Court cannot re-appreciate the evidence, unless and until there is a illegality, perversity or impropriety in the findings of the trial Court and the appellate Court.
Admittedly, this petitioner / accused was having certain business transactions with the first respondent/complainant. Taking advantage of the same, on 25.03.2012, the petitioner received a sum of ₹ 4 lakhs from the respondent/complainant, by issuing a cheque that he can collect the said amount by depositing the cheque on the next day i.e.,on 26.03.2012.Accordingly, the respondent/ complainant has also deposited the cheque on 26.03.2012, but it was returned for insufficient funds. Immediately, the complainant also issued a legal notice on 04.04.2012 to the petitioner and it was also acknowledged by him on 09.04.2012, but this petitioner/accused neither sent any reply to the notice within the statutory period nor paid the money. However, he sent a reply only on 08.06.2012 with certain allegations, even then, he did not make any attempt to substantiate the same before the trial Court. The respondent /complainant has also produced his Bank Account Statement as Ex.P6 to show that as on the date of borrowal, he was having ₹ 14,29,506.16/- in his account, by which, he has established that he has sufficient sources of money and admittedly he is also a business man, having business establishment on selling some construction materials. Therefore, it cannot be stated that the petitioner would not have sufficient money of ₹ 4 lakhs on a Sunday in his house.
In this case, the petitioner has not denied that the cheque ExP1 and the signature found therein are not that of him. The courts below, considering the available evidence, has also rightly rejected the case of the petitioner and found him guilty and convicted. The reasons assigned by the petitioner in support of the petition are not sustainable.
Criminal Revision Case is dismissed.
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2020 (9) TMI 592
Dishonor of Cheque - acquittal of the accused - rebuttal of presumption - legally valid debt or not - offence committed under Section 138 of Negotiable Instruments Act - HELD THAT:- The petitioner who is the complainant before the trial Court apart from having produced the dishonored cheque (Ex. P1), petitioner bankers memo of dishonor (Ex. P2), respondents-bankers memo of dishonor Ex. P3, legal notice Ex. P4, reply notice Exs. P5 to P8, rejoinder notice Ex. P9 and the complaint in PCR No. 124/2005 (Ex. P10), has not produced any other documents to establish that there is any debt due and liable to be paid. In that Ex. P1 being cheque and Ex. P4 being a demand notice are contended to be sufficient by the petitioner to establish the debt due and liable to be paid by the respondents.
The only witness examined being CW. 1 on the part of the petitioner though has stated initially that he is in possession of the invoices and agreement had chosen not to produce those documents and subsequently during further cross-examination has also denied that any invoices were in existence. It is not possible for any transaction of liquor to be done in the absence of invoices more so since liquor is an excisable commodity, under the Central Excise Act, any item of liquor sold would have to be accompanied by invoices, the fact that despite the petitioner having been put on notice as regards production of the invoices even duplicate/Xerox, the petitioner has chosen not to produce them would establish that there is no transaction in respect of this particular amount relatable to liquor as contended by the petitioner - Thus, it cannot be contended that the cheque has been issued in discharge of a legally valid debt by the respondents to the petitioner.
There is no legal infirmity in the order passed by the First Appellate Court requiring any interference by this Court - Appeal dismissed - decided against appellant.
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2020 (9) TMI 549
Smuggling - Charas - acquittal of accused - accused was acquitted by recording a finding that the case of prosecution was not free from doubt and there were many infirmities in the case of the prosecution to hold that the accused was found to be in possession of charas, as alleged by the prosecution - Section 20 of Narcotic Drugs and Psychotropic Substances Act, 1985 - HELD THAT:- There are no substance in any of the contentions advanced by the learned counsel for the appellant, except the submission on the quantum of sentence.
It is mainly contended by learned counsel for the appellant that the High Court / appellate Court was not justified in interfering with the judgment of acquittal passed by the trial court merely because another view is possible. As noted earlier, in support of his argument that merely because another view is possible, same is no ground to interfere with the judgment of acquittal by the appellate court.
It is clear from the evidence on record that the appellant was on the counter of the dhaba which was constructed on the land owned by his wife near the temple and the charas was found in the counter of the dhaba in a gunny bag. The facts of the case show that accused not only had direct physical control over charas, he had the knowledge of its presence and character. As rightly contended by Sri Aman Lekhi, learned Additional Solicitor General in the case of Mohan Lal (2015) 6 SCC 222 this Court had held that a functional and flexible approach in defining and understanding possession as a concept has to be adopted and the word has to be understood keeping in mind the purpose and object of the enactment. In the statement recorded under Section 313 of Code of Criminal Procedure, though the appellant has referred to Brij Lal and Mantu in support of a version, contrary to that presented by prosecution but he has not chosen to examine either Brij Lal or Mantu. No defence witness has deposed to the chain of events, as has been stated by the appellant in the statement under Section 313, Cr.PC. It is also fairly well settled that where accused offers false answers in examination under Section 313 Cr.PC, same also can be used against him. Further onus was on the appellant to explain the possession and in absence of the same being discharged, presumption under Section 54 of the NDPS Act also will kick in.
The judgment of the High Court does not suffer from any infirmity so as to interfere with the judgment of conviction - there are force in the submission of the learned counsel for the appellant in sentencing the appellant for 15 years’ rigorous imprisonment with a fine of ₹ 2,00,000/-.
In view of the fact that the incident occurred in the year 2001 and as the appellant claimed to be a priest in the temple, who is now aged about 65 years, we deem it appropriate that it is a fit case to modify the sentence imposed on the appellant - the sentence awarded on the appellant is reduced to a period of 10 (ten) years, while maintaining the conviction and the penalty as imposed by the High Court. The order of sentence dated 31.12.2012 passed by the High Court stands modified.
Appeal allowed in part.
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