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Indian Laws - Case Laws
Showing 61 to 80 of 87 Records
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2020 (9) TMI 548
Direction to the respondents to make the payment of interest for the closed Fixed Deposits account - HELD THAT:- Admittedly, when orders were passed by this Court seeking a writ of Mandamus directing the second respondent Bank to transfer the funds to the loan account with the third respondent Bank, the petitioner had not sought for payment of interest for the overdue deposit. It is also pertinent to mention that the same set of counsels appeared for both, the petitioner and the Bank in the earlier round of litigation. In fact, the earlier order was silent about even the payment of 4% interest from the date of maturity till the date of payment. The said interest is paid by the second respondent Bank only as per the Circular of the RBI binding on them. The maturity value of the deposit as on 29-1-2013 was ₹ 1,06,65,755/-. According to the petitioner, the interest payable for 773 days from 29-1-2013 to 13-3-2015 was ₹ 18,29,630/-, but what was given was only ₹ 8,13,168 and thus after deducting TDS, they suffered loss of interest to the tune of ₹ 10,16,462/-.
This Court is of the view that the petitioner is not entitled to the said amount claimed from the second respondent Bank for various reasons : (i) as per the Circular No. 415, dated 18-9-2012 referred to above, for the overdue deposits, the depositor is entitled only for interest at the rate applicable for a Savings Bank Account. In this case, admittedly, the petitioner had not made any request for renewal of FDs, though it had requested the Bank to transfer the amount to the loan account with the third respondent Bank ; (ii) the second respondent Bank had to withhold the account, as there were disputes among the trustees, after the death of the founder Trustee, who made the deposit; and (iii) Even in the earlier writ petition, the petitioner ought to have asked for payment of interest, which should have been decided there itself, but did not do so.
The petitioner is not entitled to any relief in this writ petition and the writ petition fails and the same is dismissed.
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2020 (9) TMI 419
Conduct of investigation by the police officer who himself is the complainant - it is alleged that in case the investigation is conducted by the police officer who himself is the complainant, the trial is vitiated and the accused is entitled to acquittal - present matter is placed before the Bench consisting of five Judges - Principles of Natural Justice.
Whether in case the investigation is conducted by the informant/police officer who himself is the complainant, the trial is vitiated and in such a situation, the accused is entitled to acquittal?
HELD THAT:- The first decision relied upon on behalf of the accused is the decision in the case of BHAGWAN SINGH VERSUS THE STATE OF RAJASTHAN [1975 (8) TMI 147 - SUPREME COURT], which has been subsequently followed and even considered in the subsequent decisions. It is true that in the case of Bhagwan Singh, this Court acquitted the accused by observing and holding that the complainant himself cannot be an investigator. However, it is required to be noted that in that case the investigation was conducted by a Head Constable who himself was the person to whom the bribe was alleged to have been offered and who lodged the first information report as informant or the complainant. It was noted that the entire case of the prosecution rests solely on the testimony of the Head Constable – Ram Singh and four other police constables. It was found that there was not a single independent witness to depose to the offer of bribe by the accused. It was noticed that the Head Constable – Ram Singh did not make any effort to get independent respectable witnesses in whose presence the seizure could be made - on facts and considering the entire evidence on record having doubted the prosecution case against the accused and more particularly in the absence of any independent witnesses, though the independent witnesses were available, this Court acquitted the accused by giving him benefit of doubt. Therefore, as such, the decision of this Court in the case of Bhagwan Singh can be said to be a decision on its own facts and cannot be said to be laying an absolute proposition of law that in no case the informant/complainant can be the investigator and that in all the cases where the complainant/informant and the investigating officer is the same, the entire trial is vitiated and the accused is entitled to acquittal.
Considering Section 157 Cr.P.C., either on receiving the information or otherwise (may be from other sources like secret information, from the hospital, or telephonic message), it is an obligation cast upon such police officer, in charge of a police station, to take cognizance of the information and to reduce into writing by himself and thereafter to investigate the facts and circumstances of the case, and, if necessary, to take measures for the discovery and arrest of the offender. Take an example, if an officer in charge of a police station passes on a road and he finds a dead body and/or a person being beaten who ultimately died and there is no body to give a formal complaint in writing, in such a situation, and when the said officer in charge of a police station has reason to suspect the commission of an offence, he has to reduce the same in writing in the form of an information/complaint. In such a situation, he is not precluded from further investigating the case. He is not debarred to conduct the investigation in such a situation.
The NDPS Act is a complete Code in itself. Section 41(1) authorises a Metropolitan Magistrate or a Magistrate of the first class or any Magistrate of the second class specially empowered by the State Government in this behalf, may issue a warrant for the arrest of any person whom he has reason to believe to have committed any offence punishable under the NDPS Act, or for the search, whether by day or by night - the NDPS Act does not specifically bar the informant/complainant to be an investigator and officer in charge of a police station for the investigation of the offences under the NDPS Act. On the contrary, it permits, as observed hereinabove. To take a contrary view would be amending Section 53 and the relevant provisions of the NDPS Act and/or adding something which is not there, which is not permissible.
There is no reason to doubt the credibility of the informant and doubt the entire case of the prosecution solely on the ground that the informant has investigated the case. Solely on the basis of some apprehension or the doubts, the entire prosecution version cannot be discarded and the accused is not to be straightway acquitted unless and until the accused is able to establish and prove the bias and the prejudice - As rightly observed, if at all, the investigation could only be assailed on the ground of bias or real likelihood of bias on the part of the investigating officer the question of bias would depend on the facts and circumstances of each case and therefore it is not proper to lay down a broad and unqualified proposition that in every case where the police officer who registered the case by lodging the first information, conducts the investigation that itself had caused prejudice to the accused and thereby it vitiates the entire prosecution case and the accused is entitled to acquittal.
Reference is answered.
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2020 (9) TMI 397
Smuggling - Ganja - acquittal of accused - offence under Section 20(b)(ii)(B) of Narcotic Drugs & Psychotropic Substances Act, 1985 - HELD THAT:- In the present case the prosecution has been successful in proving the case against the accused by examining the witnesses PW3, PW4, PW5, PW7 and PW8. It is true that all the aforesaid witnesses are police officials and two independent witnesses who were panchnama witnesses had turned hostile. However, all the aforesaid police witnesses are found to be reliable and trustworthy. All of them have been thoroughly cross-examined by the defence. There is no allegation of any enmity between the police witnesses and the accused. No such defence has been taken in the statement under Section 313, Cr.P.C. There is no law that the evidence of police officials, unless supported by independent evidence, is to be discarded and/or unworthy of acceptance.
It is settled law that the testimony of the official witnesses cannot be rejected on the ground of noncorroboration by independent witness.
It has been established and proved that the samples which were seized and sealed were sent to the FSL. From the record, it establishes that the recovery from Rizwan Khan was marked as ‘B1’ and ‘B2’ and the treasury record also that the narcotic substances recovered from Rizwan Khan were shown as ‘B1’ and ‘B2’. There seems to be some clerical error in numbering of sample in memorandum of Superintendent of Police and the same was mentioned as ‘A1’. However, it has been established and proved that the samples which were seized and sealed from Rizwan were sent to the FSL.
Both the courts below have rightly convicted the accused for the offence under Section 20(b)(ii)(B) of the NDPS Act - there are no reason to interfere with the conviction of the accused for the offence under Section 20(b)(ii)(B) of the NDPS Act.
Appeal dismissed.
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2020 (9) TMI 394
Maintainability of complaints - Dishonor of Cheque - insufficiency of funds - proceedings conducted by the trial court including order of cognizance and summoning passed by the trial court - HELD THAT:- he complaints in question though initially have had been filed with a defect of not mentioning name of defacto complainant -the Managing Director of the Company namely Rajat Chadha yet the said defect had been allowed to be removed by the trial court vide order dated 14.08.2017 and the said order though questioned by the petitioner in earlier 561-A petitions was not set aside by this court meaning thereby that the complaints in question are very well competent. Similarly the issue raised by the petitioner about taking on record of preliminary statement original affidavit of the complainant attested by oath commissioner pursuant to the order of trial court dated 01.07.2017, which order too though challenged in the earlier 561-A petitions was not set aside by this court. The said orders thus assumed finality and in law, could not be re-agitated in the instant petitions. Although the trial court while considering the matter upon receiving record back from this Court seemingly has erred initially while summoning the petitioner/ accused pursuant to orders dated 09.06.2018, 30.06.2018 and 21.07.2018, however, subsequently corrected the conducting of proceedings upon recording preliminary statement of the respondent/ complainant and upon passing fresh cognizance and summoning order dated 17.12.2018 notwithstanding the earlier summoning of the petitioner herein. The aforesaid errors committed by the trial Court by no sense of imagination could said to be fatal to the entire proceedings, in that, even if same or treated nullity or are set aside the further proceedings subsequently conducted by the trial court would not get affected.
Thus, complaining of suffering a prejudice or injustice on this account by the petitioner is insignificant and legally of no consequence. Furthermore the petitioner cannot question the order of cognizance or else proceedings conducted by the trial court after receipt of record back from this court on account of denial of hearing is also legally not sustainable, since hearing of accused at the time of recording of preliminary statement of the complainant, passing of cognizance order as also before issuance of process is not, in law, conceived of.
This court is of the view that in the instant cases exercise of inherent power is not warranted - Petition dismissed.
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2020 (9) TMI 390
Dishonor of Cheque - time limitation - Section 142 of N.I. Act - HELD THAT:- Instant application has been after three years of issuance of impugned summoning order, which was passed on 16.08.2017 and as no satisfactory explanation for delay has been given, thus there being undue delay and latches on the part of applicant in filing of this application, this application is liable to be dismissed on this ground alone.
Even on merits, so far the contention that impugned complaint is barred by period of limitation prescribed under section 142 NI Act is concerned, it may be stated that a bare perusal of provisions under section 138 and 142 of NI act, makes it clear that the drawee has to send a legal notice within 30 days from the date of return dishonour of cheque and asking for payment mentioned in the cheque to be maid within the 15 days. On expiry of fifteen days from the service of notice, the complaint may be filed within one month.
In the instant case it may be seen that as per allegations of complaint, the cheque was issued by the applicant on 18.01.2017, which was presented by complainant in his bank Allahabad Bank, Mawana on 02.02.2017. This cheque was dishonored on 03.02.2017 due to insufficiency of funds in account of applicant and memo of bank to this effect was received by the complainant on 04.02.2017 - as the notice was served on 17.03.2017, thus the cause of action arose on 15.04.2017 when the applicant failed to make payment within 15 days after receipt of notice, and thereafter the complaint was filed within the prescribed period of one month after cause of action arose.
All the conditions are satisfied for initiation of proceedings under section 138 N. I. Act and it can not be said that complaint filed by O.P. No. 2 is barred by limitation and therefore the contention raised by learned counsel has no force - The instant application under section 482 CrPC being devoid of any merit is hereby dismissed.
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2020 (9) TMI 349
Bail Application - Smuggling - contraband drugs(heroin) - Whether a person accused of committing an offence under the penal provisions of the NDPS Act is entitled to the benefits of bail due to procedural defects or irregularities? - Whether the accused person can be released on bail if the offence which he/she allegedly commits as is found in the charge-sheet does not suffer the rigour of Section 37 of NDPS Act?
HELD THAT:- The procedural defects or irregularities in course of investigation shall not be considered as fatal entitling the benefit of bail to the person accused of committing offence under the penal provisions of NDPS Act.
In the instant case, the learned counsels appearing for the parties have tried to persuade this Court that charge- sheet has been filed, charges have been framed and four witnesses have already been examined wherefrom it transpires that there is total non-compliance of the mandatory provisions of Section 42 of the NDPS Act. I am not unmindful to the submission of learned counsel appearing for the State- respondent that vital witnesses, like SDPO of NCC P.S., the Duty Officer[HWC(UB)] Bipin Debbarma of NCC P.S., I.O. and the reporting officer were yet to be examined.
Whether a person who has not been charged for committing offence punishable under Section 19 or Section 24 or Section 27A and also for offence involving commercial quantity, should suffer a rigour of Section 37 of NDPS Act and be considered for bail after submission of charge-sheet and particularly, when charge has been framed against him? - HELD THAT:- In the case in hand, the accused person has been charged under Sections 22(b)/25 of the NDPS Act - The charge framed by the learned Special Judge after considering the materials as revealed from the charge-sheet clearly manifests that the present accused-person has not committed any offence punishable for offence under Section 19 or Section 24 or Section 27A and also for offence involving commercial quantity.
A plain reading of Section 37 of the NDPS Act and the language employed therein clearly manifest that the Legislature while introducing the provision of Section 37 of the NDPS Act had taken into notice the extent and gravity of the offences punishable under Section 19 or Section 24 or Section 27A and also for offences involving commercial quantity. It was not the fact that the makers of law were unaware of other penal provisions prescribed in the statute but had intended not to bring those penal provisions under the umbrella of Section 37 of the NDPS Act and restricted themselves within the provisions and circumstances as specifically mentioned therein. In my opinion, the language used in a statute and literal meaning thereof, is the determinative factor of legislative intention. The intention of the Legislature is found in the words used by the Legislature itself. The question is not what may be supposed to have been intended, but, what has been stated expressly.
The accused has been in custody for one year and six months and also a private tutor. The earlier bail application was filed by the accused-person after framing of charge, and the bail application in hand has been filed after the trial is commenced when four witnesses have been examined. As such, there is change in circumstance. Further, at this stage, there is no chance of tempering the evidence - the accused-person, namely Shri Jitendra Bhowmik shall be released on bail by furnishing a bail bond of ₹ 2,00,000/-(Rupees two lakhs) with two sureties of the like amount to the satisfaction of the learned Special Judge, West Tripura, Agartala.
Bail application allowed.
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2020 (9) TMI 297
Dishonor of Cheque - the accused neither responded to the notice nor paid the demanded cheque amount - offence punishable under Section 138 of the Negotiable Instruments Act, 1881 - whether the Judgment of conviction and Order on sentence passed by the Trial Court and confirmed by the Session Judge's Court is incorrect and suffers with any illegality or perversity, warranting interference at the hands of this Court?
HELD THAT:- Section 138 of the N.I. Act mandates giving of a legal notice but it does not mandate that the said legal notice must be actually and physically placed in the hands of the accused. When a legal notice has been sent with the correct, complete and full address of the accused with appropriate postage and when the said notice was tendered to the accused, if the accused fails to accept the notice and thus fails to claim the notice sent to him under registered post, there is deemed service of notice upon him. In addition to the same, in the case on hand, the complainant has also sent notice through 'certificate of posting' as could be seen at Ex.P5. Therefore there is valid service of legal notice upon the accused. Thus, the last phase of argument canvassed by the learned amicus curiae for the petitioner alleging non service of notice upon the accused is also not acceptable.
The impugned Judgment of conviction and Order on sentence does not warrant any interference at the hands of this Court - Revision Petition dismissed.
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2020 (9) TMI 296
Direction to deposit 20% of the cheque amount in terms of Sec. 143-A of the Negotiable Instruments Act - offences punishable u/s 138 of the N.I. Act - discharge of legally enforceable debt due from the accused to the complainant - HELD THAT:- While it is true that there is no compulsion for the accused to plead/prove his defence or rebut the aforesaid presumption at the present stage of the proceedings, in the face of the aforesaid material on record and in the absence of any material to indicate the defence of the accused or that he has rebutted the presumption arising under Section 139 of the N.I Act, in the facts of the case on hand, it can not be said that the trial court exercised its discretion erroneously or improperly by passing the impugned order warranting interference by this Court under Section 482 Cr.P.C.
The contention of the petitioner that in the absence of an application filed under Section 143-A of the N.I Act by the complainant, it was not open for the trial court to invoke the said provision is misconceived and untenable. A plain reading of the said provision coupled with the very object/intendment of the legislature in introducing the said provision by way of amendment is sufficient to indicate that the trial court was fully justified in invoking the said provision and passing the impugned discretionary order even without there being an application made in that regard by the complainant. As such, even this contention urged on behalf of the accused deserves to be rejected.
The petitioner-accused is granted a further period of 60 days from this day to deposit 20% of the cheque amount before the trial Court - It is directed that upon such deposit being made, the trial Court shall invest the same in fixed deposit in any nationalized bank immediately till disposal of the case in the trial Court.
Petition dismissed.
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2020 (9) TMI 256
Maintainability of complaint - Dishonor of cheque - complaint preferred by the appellant under Section 138 of the Negotiable Instruments Act has been dismissed in default for want of prosecution - HELD THAT:- In view of Section 143 of the NI Act, offence under Section 138 of the NI Act is to be tried summarily and accordingly, procedure for summons case provided in Chapter XX of the Code of Criminal Procedure is applicable during the trial initiated on filing a complaint under Section 138 of the NI Act. In this Chapter, Section 256 Cr.P.C. deals with a situation of non-appearance or death of complainant.
Section 256 Cr.P.C. provides discretion to the Magistrate either to acquit the accused or to adjourn the case for some other day, if he thinks it proper. Proviso to this Section also empowers the Magistrate to dispense with the complainant from his personal attendance if it is found not necessary and to proceed with the case. Also, when the complainant is represented by a pleader or by the officer conducting the prosecution, the Magistrate may proceed with the case in absence of the complainant - Keeping in view the effect of dismissal in default, the Magistrate is supposed to exercise his discretion with care and caution clearly mentioning in the order that there was no reason for him to think it proper to adjourn the hearing of the case to some other day.
In present case complainant was contesting its case with due diligence and in fact trial was almost complete on 18.02.2015 when arguments were heard and case was listed for furnishing requisite bonds by the respondent under Section 437-A Cr.P.C. and final order on 26.02.2015. But final order could not be passed on account of conduct of the respondent.
The Magistrate was not justified in dismissing the complaint in default for absence of authorized person of the complainant coupled with failure of its counsel to attend the case on that date, particularly, when the complainant was pursuing its case from 18.10.2013 and was being represented through counsel on numerous dates fixed for service of respondent through bailable and non-bailable warrants - Appeal allowed.
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2020 (9) TMI 255
Maintainability of Revision - jurisdiction to take cognizance of offence - Dishonor of Cheque - summon trial - Section 142(2)(a) of the N.I. Act - petitioner would submit that both the Courts below are absolutely unjustified in rejecting the objection raised by the petitioner as Ms. Neha Usendi, J.M.F.C. Raipur had no jurisdiction to take cognizance of offence under Section 138 of the N.I. Act against the petitioner - HELD THAT:- Both the Courts below have partly agreed with the petitioner/accused that cognizance of offence under Section 138 of N.I. Act could not have been taken by Ms. Neha Usendi, J.M.F.C. Raipur as she was conferred with the jurisdiction to try the cases based on N.I. Act arising from Khamtarai, Abhanpur, D.D. Nagar and Aamanaka Police Stations and the cognizance of offence ought to have been taken by Ms. Namrata Norge, J.M.F.C. Raipur as the offence under Section 138 of the N.I. Act alleged to have been committed by the petitioner/accused has arisen from Police Station Pandri and it lies within her jurisdiction, but both the Courts below have categorically held that taking cognizance of offence against the petitioner under Section 190(1)(a) of the Cr.P.C. by Ms. Neha Usendi, J.M.F.C. Raipur is only an irregularity which would not vitiate the proceedings in view of provision contained under Section 460(e) of the Cr.P.C.
The provision contained in Section 460(e) of the Cr.P.C. saves proceedings before a Magistrate taken on complaint or on police report of which cognizance is taken erroneously and in good faith but without the Magistrate having the requisite power to take cognizance on such material and irregularities set out in Section 460 do not vitiate proceedings.
It is quite vivid that in the instant case, admittedly, Ms. Neha Usendi, J.M.F.C. Raipur has taken cognizance of offence under Section 138 of the N.I. Act against the petitioner under Section 190(1)(a) of the Cr.P.C. though she was not empowered to do so in light of provision contained under Section 142(2)(a) of the N.I. Act read with the work division memo dated 02/08/2018 issued by the Chief Judicial Magistrate. It is not alleged by the petitioner that jurisdiction of taking cognizance under Section 190(1)(a) of the Cr.P.C. was exercised by Ms. Neha Usendi, J.M.F.C. Raipur in bad faith, though it has been argued that matter is not covered by Section 460(e) of the Cr.P.C., but in my considered opinion, cognizance of offence against the petitioner under Section 138 of the N.I. Act was taken by Ms. Neha Usendi, J.M.F.C. Raipur under Section 190(1)(a) of the Cr.P.C. in good faith and that too, erroneously therefore, it is squarely covered by Section 460(e) of the Cr.P.C. and thereby, proceeding would not vitiate, as such, the proceeding is not liable to be set aside and the same has rightly been held by the trial Magistrate which has rightly been affirmed by the revisional Court and it is hereby reaffirmed.
The next contention of learned counsel for the petitioner is that cognizance of offence under Section 138 of the N.I. Act taken against the petitioner is also hit by virtue of Section 202(1) of the Cr.P.C. as the said provision is mandatory - HELD THAT:- The Supreme Court in the matter of K.S. Joseph v. Philips Carbon Black Ltd. and Anr. [2016 (4) TMI 613 - SUPREME COURT] has held that Section 145 of the N.I. Act, being non obstante clause overrides the requirement of examination of the complainant and complainant's evidence on affidavit will be sufficient.
The present petition under Section 482 of the Cr.P.C. deserves to be and is accordingly dismissed.
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2020 (9) TMI 216
Dishonor of Cheque - insufficiency of funds - presence of legal liability or not - Section 138/142 of Negotiable Instruments Act - petitioner submits that he would be satisfied if the petitioner is granted liberty to approach the Magistrate concerned and move an appropriate application by raising all the pleas, as raised in the present petition.
HELD THAT:- This petition is disposed of with a liberty to the petitioner to approach the Magistrate concerned and move an application by raising all the pleas, as raised in the present petition. On his doing so, the Magistrate concerned will decide such application after taking into consideration the pleas raised therein by the petitioner, in accordance with law, within a stipulated period.
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2020 (9) TMI 215
Dishonor of Cheque - Offence u/s 138 of NI Act - complaint was dismissed on the ground that the return memo of the banker with endorsement has not been proved in accordance with Section 67 of the Evidence Act - HELD THAT:- It is no more res integra that the provisions of Section 146 of the N.I. Act unambiguously and expressly override the principles of the Indian Evidence Act and making such a major departure from the application of the Evidence Act provides that the bank slip or memo with the official mark showing that the cheque was dishonoured would by itself give rise to the presumption of the dishonour of the cheque, unless and until the contrary to the said fact was disproved. In view of insertion of Section 146 in the N.I. Act, Section 67 of the Evidence Act as relied upon by the learned Trial Judge has no manner of application to prove or disprove the document relating to bank note/slip/return memo. Furthermore, Section 143 of the N.I. Act fortifies the complaint under Section 138 of the N.I. Act to be tried in summary manner - Having held so, the findings that the contents of the bank notes were not proved in accordance with Section 67 of the Evidence Act and thus bad in law, has no force in the eye of law and contrary to Section 146 of the N.I. Act.
The accused- respondent has not preferred any appeal in regard to the findings of the learned Trial Court while deciding the point No.1 as quoted herein-above that the cheque was issued by the accused-respondent in favour of the complainant-appellant in discharge of his liability and debt to pay the sum of ₹ 7,95,000/- - the instant appeal merits consideration, the complainant-appellant has been able to prove the fact of the accused’s liability to pay the entire amount of ₹ 7,95,000/- as fine. The same should be paid to the complainant within a period of three months from the date of receipt of this order, otherwise, in default, the accused-respondent shall be sent to jail to suffer simple imprisonment for six month.
Appeal disposed off.
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2020 (9) TMI 168
Grant of Bail - Smuggling - Charas - acquittal of the accused - offence punishable under Sections 8(c), 20 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 - HELD THAT:- This Court is of the view that there are reasonable grounds to believe that the petitioner may be acquitted. Admittedly, the petitioner is not involved in any other criminal case and there is no reason to believe that he would commit a similar offence, if released. It appears to be the prosecution’s case that the petitioner had begun dealing in drugs to feed his addiction. But, as noticed earlier, there is nothing on record to establish that the petitioner is a drug addict.
The present petition is allowed and the petitioner is directed to be released on bail on his furnishing a personal bond in the sum of ₹ 25,000/- with one surety of an equivalent amount to the satisfaction of the concerned Jail Superintendent/Trial Court/Duty Magistrate, subject to conditions imposed.
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2020 (9) TMI 112
Dishonor of Cheque - permission to file affidavit of chief examination - the applicant has filed this petition under Section 482 of Cr.P.C. on the ground that learned trial Court has wrongly interpreted the case-laws - Section 145 of N.I. Act - HELD THAT:- No doubt by virtue of Section 145(1) of Negotiable Instruments Act, it is only the complainant who is permitted to give evidence on affidavit and that affidavit can be considered during whole trial as evidence. Section 145(2) of Negotiable Instruments Act permits the parties to request the trial Court for calling the witnesses for cross-examination personally.
This Court is of the view that the complaint case is pending since 2014 and the applicant has filed a detailed affidavit of evidence before the trial Court which can be used as examination-in-chief of the applicant. If the respondent who is complainant therein wants to crossexamine the applicant, he can apply before the trial Court for calling the applicant for cross-examination. In case the applicant failed to appear before the trial Court for cross-examination, the Court may proceed further presuming that the applicant intentionally not appearing before the Court for cross-examination and the value of such affidavit can be considered at the time of final adjudication of the case.
Petition allowed.
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2020 (9) TMI 111
Grant of Interim Bail - Smuggling - Methamphetamine - Coccaine - Applicant seeks bail on the ground of deteriorating conditions in the Mandoli Jail, where it is stated that there is a severe spread of the pandemic - Sections 8, 21, 22, 27A and 29 of NDPS Act, 1985 - HELD THAT:- The Senior Medical Officer admits that the Applicant is suffering from skin allergies. There is no response to the specific plea of the mother in her affidavit where it has been stated that due to the skin allergy, she has been given medicines in jail and she has suffered a negative reaction to them. Further, considering the situation of the pandemic as also various news articles published from time to time about the spread of COVID-19 even in the jail, the threat of the pandemic is a serious threat. The Applicant is a permanent resident of Goa with deep roots in society as is clear from her mother’s affidavit as also the petition filed by her grandfather - In the nominal roll, the jail conduct of the Applicant is found satisfactory. There are no other cases pending against the Applicant. The statement given by the Applicant under Section 67 has been retracted by her affidavit. However, this Court is not inclined to go into the validity or otherwise of the said statement at this point.
The present petition is only seeking interim bail in order to enable the Applicant to meet her family. Considering the overall facts and circumstances of this case, this Court is inclined to give interim bail to the Applicant - Interim bail granted.
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2020 (9) TMI 110
Jurisdiction - imposition of condition of deposit of 50% of amount of compensation - introduction of section 148 of NI Act - relevant date - HELD THAT:- In present case, not only complaint as well as appeal was preferred before the insertion of Section 148 of NI Act, but impugned order was also passed before that.
In the present case, trial Magistrate has imposed compensation to be paid to complainant with default clause of imprisonment of one year in case petitioner fails to pay the compensation, within four weeks. Sction 138 of NI Act empowers the Court to levy a fine which may extend twice the amount of cheque, as referred supra, and further in view of pronouncement of Apex Court in Suganthi Suresh Kumar’s case, referred supra, the trial Magistrate is also empowered to award any sum as compensation under Section 357 Cr.P.C. and in case, petitioner choses to serve the sentence in default, even then amount of compensation would be recoverable under Section 421 Cr.P.C. read with Section 431 of Cr.P.C., irrespective of the fact that there is default clause in order for non-payment of compensation within 4 months.
Petitioner, in alternative, has also prayed to permit him to deposit the amount directed by Appellate Court, in installments on such terms and conditions as may be deemed proper. Complaint was decided and petitioner was convicted on 30.5.2015 and thereafter impugned order was passed on 30.6.2015. Now, we are in June 2020. The cheque amount was of ₹ 6 lacs, whereas compensation imposed by the trial Court is double thereof i.e. ₹ 12 lacs. At the time of passing of order, condition of deposit 50% of amount of ₹ 6 lacs was imposed about 5 years back. Therefore, prayer of petitioner to grant him time to deposit the amount in installments is concerned, that has also lost force after lapse of 5 years - However taking a lenient view, liberty is granted to petitioner to make such prayer before the Appellate Court and if such prayer is preferred before the First Appellate Court, the same shall be considered by the Appellate Court.
Petition dismissed.
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2020 (9) TMI 109
Grant of anticipatory bail - guilty and convicted under Section 138 r/w.142 of Negotiable Instruments Act - HELD THAT:- A perusal of the case records indicates that after suffering conviction at the hands of the trial Court and the same being confirmed by the appellate Court the petitioner herein preferred Crl.R.C.No. 2012 of 2002. On 19.12.2006 Hon'ble Justice A.Selvam (as he then was) after discussing the facts of the case, has expressed his opinion that the sentence of imprisonment in default of payment of fine cannot be imposed since the conviction is under Section 138 of the N.I, Act, which does not provided Sentence of imprisonment in default of payment of fine. So taking into consideration the provisions under the Criminal Procedure Code, particularly Section 30, the learned Single Judge has requested the Registry to place the papers before the Honourable Chief Justice to post the matter before the larger bench to decide the case.
It is absolutely correct that there is no revision pending before the High Court on the day when the complainant filed miscellaneous petition in Crl.M.P.No. 4295 of 2018 seeking to issue Non Bailable Warrant to secure the convict - Since the criminal prosecution has crossed the stage of trial, appeal and revision and reached the finality, the person who is found guilty have no right to file anticipatory bail petition for modification invoking 438 of Cr.P.C, the representation made across the bar and in the anticipatory bail petition that Crl.R.C is pending before this Court is factually not correct.
The anticipatory bail petition is liable to be dismissed.
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2020 (9) TMI 108
Dishonor of cheque - whether the petitioner/accused in the present case has succeeded to rebut the presumption arising in favour of the respondent/complainant in terms of Section 118 read with Section 139 of the Negotiable Instruments Act?
HELD THAT:- From the evidence and materials adduced by the parties, it is manifest that the petitioner has not disputed the issuance of cheque in question and the signature found therein. As such, the presumption lies in favour of the respondent that the cheque in question was issued by the petitioner for legally enforceable liability. In such circumstances, the petitioner has to rebut the same through preponderance of probability, whereas the oral evidence adduced by him would only disclose the fact that there were money transactions between the two. Though he replied to the legal notice issued by the respondent, the contents of the same were not substantiated by any oral or documentary evidence.
Further, nothing has been elicited from the cross examination of P.W.1. That apart, the petitioner has not subjected himself to witness box, which is fatal to his case. In the considered opinion of this Court, a mere denial of the averments made by the respondent is not sufficient for rebutting the presumptions arising in his favour and it is for the petitioner to demonstrate that there exists preponderance of probabilities that the cheque in question was not issued towards discharge of any legally enforceable debt/liability, but the petitioner has failed to do so. On the other hand, the respondent has proved his case that the petitioner committed the offence under Section 138 of the Negotiable Instruments Act - Hence, the trial Court has rightly convicted the petitioner for the same and the same was also affirmed by the Appellate Court.
Criminal Revision Case stands dismissed.
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2020 (9) TMI 107
Dishonor of Cheque - acquittal of the accused - rebuttal of presumption - Section 138 of the Negotiable Instruments Act - whether the cheque was given in security or not and its effect?
HELD THAT:- If any cheque is given in security, then presumption of legally enforceable debt or liability exists which has to be rebutted by the accused to the extent that full amount due and payable to the complainant has been paid or otherwise.
Here in the case in hand, accused did not discharge the onus lying over her and she could not rebut the presumption as per Section 118 and Section 139 of the Act. Mohsin did not enter into witness box and he could have been the witness who could have elaborated the intention of the parties. Although agreement to sell and issuance of cheque were admitted by the accused and rightly so because she signed those instruments, and therefore, it was herculean task for her to discharge the onus. Nevertheless she failed even otherwise.
In the cumulative analysis, it is established that trial Court erred in passing the impugned judgment regarding acquittal in favour of the accused i.e. respondent - impugned judgement set aside.
Appeal allowed.
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2020 (9) TMI 106
Dishonor of Cheque - offence u/s 138 of NI Act - Refusal to permit and to add the said company as accused No.3 in the complaints filed under Section 138 of Negotiable Instruments Act - HELD THAT:- The amendment of the nature sought for in present petitions, cannot be permitted and therefore this Court is not inclined to entertain present petitions, as no infirmity or illegality is noticed in the impugned orders.
Petition dismissed.
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