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Indian Laws - Case Laws
Showing 81 to 87 of 87 Records
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2020 (9) TMI 105
Leave sought under Sub-Section (4) of Section 378 of the Code of Criminal Procedure, 1973 - respondent acquitted of the charge under Section 138 of the Negotiable Instruments Act - HELD THAT:- It does not stand to the reason that somebody would repay the amount of issuance of cheque after such a serious matrimonial dispute with the daughter of the complainant. Furthermore, as recorded by the trial Court, the Bank Official examined on behalf of the accused deposed to that the impugned cheque is non CTS Cheque and that cheque book issued reflects two names i.e. Manish Kanubhai Vora and Dhara Manish Vora. Dhara Manish Vora appears to be ex-wife of the present accused and the disputed cheque leaf from the cheque book appears to have been issued in the year 2012. Therefore, by leading evidence through the cross examination of the complainant, as also producing his own witnesses, the accused has been successful to rebut the presumption. By leading evidence, the accused is successful in showing that the consideration and debt did not exist or under the peculiar circumstance of the case, the non- existence of consideration and debt is so probable that a prudent man ought to suppose that no consideration and debt existed.
Since the accused is successful in rebutting the presumption then it is for the complainant to prove that existence of the debt and he is capable of lending money to the tune of ₹ 3,05,000/-, as claimed by him. Considering the evidence brought on record, the complainant is working as Security Guard and earning ₹ 6,000/- per month. While cross examining the complainant, the complainant has tried to explain that he had borrowed the money from his brother and other relatives and then it was lent to the accused. However, it is nothing but an afterthought which is not reflected either in the complaint or in the notice or even in the examination in-chief of the complainant. Thus, it is clear that the judgment of acquittal recorded by the learned trial Judge after considering the evidence minutely, requires no interference under any circumstance.
The application seeking special leave to appeal stands rejected.
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2020 (9) TMI 104
Dishonor of Cheque - Section 138 of Negotiable Instruments Act - suit for recovery of money with interest and costs - whether the plaintiff is entitled to decree as prayed for? - HELD THAT:- This Court is of the considered opinion that the plaintiff has established the fact that the defendant has admitted that he has issued a cheque for ₹ 17 lakhs. The cheque was presented by the plaintiff for encashment and was returned with an endorsement that the defendant has issued a 'stop payment' instruction. On verification, the plaintiff came to understand that sufficient funds were not available in the accounts of the defendant. This being the facts which are all admitted between the parties and in respect of other contention, there must be a proof to establish the same. In the absence of any clinching evidence, to disprove the said basic facts, the Trial Court has rightly proceeded with a finding that the plaintiff is entitled for the relief of recovery of money.
On perusal of the entire findings, arrived by the Trial Court, which is in consonance with the document and evidence, this Court is of the opinion that there is no perversity or infirmity as such so as to interfere with the findings of the Trial Court - Appeal dismissed.
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2020 (9) TMI 103
Dishonor of Cheque - section 138 of NI Act - permission to cross examine the complainant - Section 145(2) of Negotiable Instrument Act - HELD THAT:- From perusal of the impugned order, it does not appear that the learned Magistrate tried the case against the respondent under the procedure of summary trial. Under the provision of Section 145(2) of N.I. Act the respondent/accused has liberty to make an application for recalling the witness for cross-examination on plea of defence. The applicant has not filed the plea of defence of accused recorded by the trial court, therefore, it cannot be said that there is no probable defence is available to the respondent/accused for cross-examination of the complainant.
This court is of the view that the trial court has not committed any error in allowing the application under Section 145(2) of N.I. Act to permit the respondent/accused for recalling the complainant for his cross-examination, hence, there is reason available to interfere with the impugned order - Petition dismissed.
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2020 (9) TMI 102
Dishonor of Cheque - offence punishable under Section 138 of the Negotiable Instruments Act, 1881 - HELD THAT:- From the statement of the complainant-Nanuram and documentary evidence available on record, it is duly proved that the applicant has committed an offence punishable under Section 138 of the Negotiable Instruments Act, 1881, therefore, this Court is of the view that the trial Court as well as the appellate Court have not committed any error in convicting the applicant for commission of offence punishable under Section 138 of the Negotiable Instruments Act, 1881 and there is no ground available for warranting any interference in the concurrent findings recorded by the courts below. Thus, the conviction of the applicant recorded by the courts' below is hereby affirmed.
Period of sentence - HELD THAT:- The applicant has already suffered more than 15 days of jail sentence out of two months SI and he has already deposited the compensation amount of ₹ 6.0 Lacs before the trial Court and now the complainant/respondent has no grievances with the applicant, therefore, it will be appropriate to reduce the custodial sentence of the applicant to the period already undergone by the applicant.
This revision petition is partly allowed and the order of awarding compensation amount of ₹ 6.0 Lacs to the respondent/complainant is hereby affirmed, however, the custodial sentence of the applicant is reduced to the period already undergone by him - appllicant is in jail, the Registry of this Court is directed to arrange for issuance of release warrant of applicant -Rajesh Kumar.
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2020 (9) TMI 101
Maintainability of revision petition - Dishonor of cheque - application filed under Section 6 Rule 17 CPC - HELD THAT:- It is evident from the record that petitioner- accused did not raise any objection before the learned revisional court about the maintainability of the revision. So, only on the ground of maintainability, this petition cannot be allowed -
Therefore, petitioner-accused cannot raise such type of objection before this court. It is also evident that proceedings under Section 138 of N.I. Act is at initial stage so, respondent/complainant filed a petition for amendment and that petition can be allowed for complete justice.
Petition dismissed.
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2020 (9) TMI 77
Grant of anticipatory bail - investment in the company by way of fraud - Dishonor of Cheque - Non-disclosure agreement or not - HELD THAT:- The Company has spent majorly on traveling and food expenses as also on liaisoning expenses but it gives no indication regarding the investment in the business and other details of business including the manner in which the amount given by complainant was used.
It is an admitted fact that the amount spent by the complainant was sought to be returned by giving two cheques which have stood dishonoured - For further purpose of appropriate investigation, custodial interrogation of the applicant is necessary. There are no valid grounds in this application for giving the benefit of anticipatory bail to the applicant.
Application dismissed.
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2020 (9) TMI 2
Quantum of punishment - offence under NDPS - enhancement of sentence imposed, is sought - It is contended by learned counsel for the appellant, though the respondent no.2 had committed murder of an innocent child, the Sessions Court, instead to award punishment of death penalty, has awarded only imprisonment for life - Section 372 of the Code of Criminal Procedure - HELD THAT:- Chapter XXIX of the Code of Criminal Procedure, 1973 deals with ‘Appeals’ and Section 372 makes it clear that no appeal to lie unless otherwise provided by the Code or any other law for the time being in force. It is not in dispute that in the instant case appellant has preferred appeal only under Section 372, Cr.PC. The proviso is inserted to Section 372, Cr.PC by Act 5 of 2009.
A reading of the proviso makes it clear that so far as victim’s right of appeal is concerned, same is restricted to three eventualities, namely, acquittal of the accused; conviction of the accused for lesser offence; or for imposing inadequate compensation. While the victim is given opportunity to prefer appeal in the event of imposing inadequate compensation, but at the same time there is no provision for appeal by the victim for questioning the order of sentence as inadequate, whereas Section 377, Cr.PC gives the power to the State Government to prefer appeal for enhancement of sentence.
While it is open for the State Government to prefer appeal for inadequate sentence under Section 377, Cr.PC but similarly no appeal can be maintained by victim under Section 372, Cr.PC on the ground of inadequate sentence - It is fairly well settled that the remedy of appeal is creature of the Statute. Unless same is provided either under Code of Criminal Procedure or by any other law for the time being in force no appeal, seeking enhancement of sentence at the instance of the victim, is maintainable.
Appeal dismissed.
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