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Indian Laws - Case Laws
Showing 61 to 80 of 862 Records
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2020 (12) TMI 507 - KARNATAKA HIGH COURT
Direction to petitioner to deposit 20% of the cheque amount in terms of Sec. 143-A of the Negotiable Instruments Act - non-application of mind - HELD THAT:- It is now well settled that this Court is entitled to exercise its jurisdiction/ inherent powers under Section 482 Cr.P.C., especially when it relates to interfering with interlocutory orders/ proceedings only if such exercise of power is required to prevent abuse of the process of the court arising out of such impugned order/proceedings or to secure the ends of justice
Thus, in the facts of the instant case, the impugned order passed by the trial court invoking Section 143-A of the N.I Act and thereby directing the accused to deposit 20% of the cheque amount does not warrant interference by this Court in the exercise of its powers under Section 482 Cr.P.C - petition dismissed.
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2020 (12) TMI 506 - MADRAS HIGH COURT
Dishonor of Cheque - argument has been raised by the petitioner's counsel that the complainant has not placed any material to show his solvency to pay a sum of ₹ 12,00,000/- to the revision petitioner - Section 138 of the Negotiable Instrument Act - HELD THAT:- The cheque issued by the revision petitioner/accused marked as Ex.P1 and the return of the cheque by the concerned bank on presentation and the reason adduced therein and the issuance of the legal notice and the receipt of the same by the revision petitioner/accused, it is found that the revision petitioner/accused has not chosen to send any reply to the legal notice sent by the complainant calling upon her to pay the amount involved in the matter.
From the materials placed on record, it is found that the revision petitioner/accused has taken a defence that she was having business dealings with the wife of the complainant and in connection with the said business, she had given the cheque in question as a security. However, pointing to the abovesaid version taken by the revision petitioner/accused in support of her defence, no acceptable and reliable material has been placed on record. It is found that the revision petitioner/accused has also lodged a complaint against the complainant's wife marked as Ex.P8 and to establish the same, the complainant has examined P.W.2, the police constable. However, from the evidence adduced in the matter, it is found that the revision petitioner/accused has disowned the lodgment of the compliant said to have been preferred by her - When the factum of the revision petitioner/accused having business transaction with the complainant's wife has not been established by adducing acceptable and reliable material and furthermore when the revision petitioner/accused has not placed any material to sustain that she had given the cheque in question as a security in connection with the silk business and as above pointed out the revision petitioner having not chosen to challenge the legal notice sent by the complainant, all put together, would only lead to the conclusion, as held by the courts below, that inasmuch as the revision petitioner/accused had received the amount from the complainant in connection with her daughter's education accordingly she is unable to place any material to rebut the presumption which had been rightly raised in favour of the complainant by the courts below.
The courts below are found to have rightly assessed the materials placed on record both oral and documentary in the correct perspective and also considering the principles of law governing the case involved in the matter, are found to be justified in convicting and sentencing the revision petitioner/accused under Section 138 of the Negotiable Instrument Act and the sentence imposed on the revision petitioner is also found to be not on the higher side - there are no infirmity or error in the conviction and sentence imposed on the revision petitioner / accused by the courts below.
Revision petition dismissed.
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2020 (12) TMI 478 - PUNJAB & HARYANA HIGH COURT
Grant of anticipatory bail - Recovery of embezzled amount - issuance of false and forged passports by the petitioner - Sections 406 and 420 of IPC - HELD THAT:- It appears that the petitioner is trying to muddle up his personal transaction with Narinder Kumar Sharma with that of the complainant. A dispute arising out of partnership in M/s Arihant Filling Station in first appearance has nothing to do with the present allegations, however, complicity of the petitioner would be subject to custodial interrogation. Second son of the petitioner i.e. Tijinder also filed complaint against the petitioner in respect of his own transactions and that has no relevance with the present allegations arising out of FIR in question.
In entirety of facts and circumstances of the case, the 4 of 5 custodial interrogation of the petitioner is required in order to effect recoveries of the amount and other incriminating record.
Petition dismissed.
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2020 (12) TMI 430 - KARNATAKA HIGH COURT
Dishonor of Cheque - effect of insertion of Section 143A of the N.I. Act - Whether the insertion of Section 143A of the N.I. Act is having a prospective effect or can also be given retrospective effect?
HELD THAT:- It is well settled proposition of law that always the substantive law which affects the rights of the parties will have prospective effect unless it has been given a retrospective effect expressly in the statute itself.
Though the learned counsel for the respondent- complainant has relied upon the decision in the case of Surinder Singh Deswal @ Colonel S.S.Deswal & Others Vs. Virender Gandhi [2019 (5) TMI 1626 - SUPREME COURT], the question before the Hon'ble Apex Court was with reference to Section 148 of the N.I. Act which has been amended and inserted w.e.f. 1.9.2018 and Section 148 of the N.I. Act is applicable to appeals against the order of conviction for the offence punishable under Section 138 of the N.I. Act even where the complaints under Section 138 of the N.I. Act were filed prior to amendment of the N.I. Act. In that light, the Hon'ble Apex Court has given effect by holding that the appellant has to deposit a sum which is not less than 20% of the fine or compensation amount - But in the said decision Section 143A of the N.I. Act has not been interpreted.
In the case of G.J.Raja Vs. Tejraj Surana [2019 (8) TMI 91 - SUPREME COURT], the issue came up before the Court directly with regard to interpretation of Section 143A of the N.I. Act and the Hon'ble Apex Court has held that Section 143A of the N.I. Act is having prospective effect in nature and confined to the cases where the offences were committed after the introduction of Section 143A of the N.I. Act - When the Hon'ble Apex Court has interpreted and laid down the ratio holding that Section 143A of the N.I. Act is to be prospective in operation and is made applicable only in the cases where the offence under Section 138 of the Act was committed after insertion of Section 143A in the statute.
The trial Court as well as revisional Court without going into the said aspect have passed the impugned orders - Petition allowed.
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2020 (12) TMI 414 - HIMACHAL PRADESH HIGH COURT
Dishonor of Cheque - summon of accused - rejection of request of petitioner/accused to summon and examine the witnesses - Section 145(2) of Negotiable Instrument Act - HELD THAT:- The trial Judge has also ventured in discussing the merits of case on the basis of plea taken by accused in the application, despite the fact that there was no occasion to discuss the same at this stage that too in an application filed under Section 145(2) of NI Act.
It is also noticed that on 27.08.2018 on request of accused, without resorting to record substance of accusation or putting Notice of Accusation or framing the charge, and recording response of accused thereto, the Magistrate had granted time to the accused to file an application under Section 145 of Negotiable Instrument Act that too without giving an opportunity to the complainant to file/lead any further evidence, if any, which he would have intended to bring on record after commencement of trial. Thus the trial Court has committed a mistake of law.
In present case, there is another issue which requires consideration. Application under Section 145 of NI Act was entertained at wrong stage whereas such application is permissible after closure of or during leading of evidence of complainant, at a stage when complainant would have been given opportunity to lead and complete his evidence after recording substance of accusation or putting notice of accusation or framing of charge but not before that. Therefore, the application should not have been permitted to be filed at wrong stage and in any case, if it had been permitted to be filed at wrong stage, then the same should have been kept pending for consideration at appropriate stage. It would be clear from discussions recorded hereinafter.
It is evident from record that on the very first day of appearance of accused neither charge was framed nor Notice of Accusation was put to him and it was also not recorded that substance of accusation was communicated to him for his response as to whether he pleads guilty or has any defence to make. After putting the substance of accusation/Notice of Accusation to the accused, in case of not pleading guilty by him, the Magistrate would have either recorded substance of accusation to follow the procedure in summary trial or would have followed procedure for regular trial after putting notice of accusation or framing the charge as the case may be and thereafter would have asked the complainant to lead any further evidence, if any, in support of his case and thereafter occasion to entertain application under Section 145(2) of NI Act would have arisen to pray for summoning and examining the persons who might have given evidence on affidavit i.e. only after filing/leading any other further evidence or opting for not to lead further evidence by the complainant not prior to that.
The trial Court has committed patent illegality in in impugned order. Serious mistake committed by the trial Court is not mere irregularity but illegality - the impugned order rejecting the application filed under Section 145 of NI Act is set aside with direction to the trial Court to consider this application after putting Notice of Accusation to accused, at the stage of or after calling for further evidence of complainant, if any, to be filed/led on behalf of complainant in support of his case.
Petition allowed.
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2020 (12) TMI 413 - KERALA HIGH COURT
Dishonor of Cheque - blank cheques were issued to the complainant in repayment of the loan transaction - legally enforceable debt or not - rebuttal of presumption - burden of prove not discharged - HELD THAT:- It is well settled law that a revision against concurrent findings of conviction and sentence, the High Court does not, in the absence of perversity upset factual findings arrived at by the trial court. It is not for the revisional court to re-analyse and re- interpret the evidence on record in a case where the trial court and appellate court have come to a probable conclusion. On going through the concurrent findings, this Court is of the view that the both the trial court and appellate court concurrently construed the presumptions under Section 139 of the Act in accordance with law. Unless the contrary is proved, it is presumed that the holder of a cheque received the cheque of the nature referred to in Section 138 of the Act for the discharge, in whole or in part, of any debt or other liability. In the case at hand, the accused has no case that he has not signed the cheque or parted with under any threat or coercion. That apart, the accused has no case that unfilled cheque had been lost irrecoverably or stolen. Although DW1 was examined before the trial court, he had no direct knowledge regarding the transaction between the parties. The accused failed to prove in the trial by leading cogent evidence that there was no debt or liability.
In Bir Singh v. Mukesh Kumar [2019 (2) TMI 547 - SUPREME COURT] the Supreme Court held that in view of Section 139 of the Act read with Section 118 of the Act thereof, the Court has to presume that the cheque has been issued for discharging a debt or liability.
The burden was on the accused to prove that the blank cheques were issued to the complainant in repayment of the loan transaction. The burden has not been discharged. It has come out in evidence that the prosecution was initiated against the accused by the complainant in accordance with the scheme of the N.I.Act - the complainant has succeeded in proving that the accused borrowed an amount of ₹ 2,00,000/- from the complainant and issued Ext.P1 cheque for a legally enforceable debt.
This Court is of the view that the trial court rightly convicted the accused for the offence punishable under Section 138 of the N.I.Act - Revision allowed in part.
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2020 (12) TMI 412 - MADRAS HIGH COURT
Dishonor of Cheque - existence of debt or not - discharge of vicarious liability - suppression of notice - legally enforceable debt or not - restraint from presenting the cheques for collection - Sections 138, 141 and 142 of NI Act - HELD THAT:- On perusal of the complaint, there are totally four accused, in which the first accused is the company and the accused 2 to 4 are its Directors. Admittedly, the first accused is not represented by its Managing Director and represented by all of its Directors. All the cheques were issued by all the Directors separately. There is no averment to the effect that who is the signatory of the cheque and who issued cheque on behalf of the first accused. There is no specific averment as against the accused 2 to 4 to the effect that they are in charge of and responsible for the conduct of the business of the first accused company.
In the absence of specific allegation in the complaint in respect of the role played by the Directors and their responsibility in the conduct of the first accused business at the relevant point of time and that the offence was committed by their consent or connivance.
Receipt of the statutory notice - HELD THAT:- It is seen from the notice dated 15.10.2018, the petitioners called upon the respondent to refrain from presenting the alleged cheques for payment and return those cheques. On receipt of the same, the respondent did not send any rejoinder to the reply notice dated 26.12.2018. They also failed to deny the averments made in the notice dated 15.10.2018 in the complaint. It amounts to suppression of fact - In fact, in the complaint the respondent averred that the said cheques were fraudulently issued to cheat the respondent and instructed the respondent to present the same for collection. When the petitioners categorically called upon the respondent to refrain from presenting the cheques and also return the same, the petitioners would not have instructed the respondent to present those cheques for collection. That apart, those cheques admittedly are post-dated one. When there is a dispute in respect of quality of the garments, the petitioners stopped the payment of those cheques.
All the impugned complaints filed as against the petitioners are liable to be quashed - Petition allowed - decided in favor of petitioner.
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2020 (12) TMI 380 - JHARKHAND HIGH COURT
Dishonor of Cheque - Misappropriation of fund - validity of registration of a FIR under Section 156(3) of the Code of Criminal Procedure - non-application of mind - HELD THAT:- The Hon'ble Supreme Court in the case of MRS. PRIYANKA SRIVASTAVA AND ANOTHER VERSUS STATE OF UP. AND OTHERS [2015 (5) TMI 47 - SUPREME COURT] has held that an application under Section 156(3) of the Code of Criminal Procedure seeking a direction for registering an FIR must be supported by an affidavit. The Hon'ble Supreme Court in the said judgment has further held that in a routine manner the complaint cannot be sent by exercising jurisdiction under Section 156(3) of the Code of Criminal Procedure for registering an FIR. This exercise of power requires application of mind. The Hon'ble Supreme Court further has held that there should be prior application of Section 154(1) and 154(3) of the Code of Criminal Procedure while filing a petition under Section 156(3) of the Code of Criminal Procedure.
In the instant case, the provisions of law have not been followed by the Magistrate. In a most mechanical manner, without application of mind the Magistrate has referred the complaint under Section 156(3) of the Code of Criminal Procedure for registering a First Information Report. There is no compliance of Section 154(1) and Section 154(3) of the Code of Criminal procedure in the instant case - Further, from the complaint, it is found that the complainant had prayed to take cognizance of the offence under Sections 420, 403, 406 of the Indian Penal Code and Section 138 of the Negotiable Instruments Act and to proceed against the accused persons. No where the complainant had prayed to refer the complaint under Section 156(3) of the Code of Criminal Procedure. Thus, the order of the Court passed under Section 156(3) of the Code of Criminal Procedure is absolutely bad and is hereby set aside.
Court below is directed to proceed with the complaint case being in terms of Chapter XV of the Code of Criminal Procedure - criminal miscellaneous petition stands disposed of.
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2020 (12) TMI 362 - KERALA HIGH COURT
CIRP Proceedings - Validity of notice of sale under Rule 8(6) of Security Interest (Enforcement) Rules, 2002 - validity of notice for sale of secured assets in e-aucion sale in terms of SARFAESI Act - HELD THAT:- It is not in dispute that the petitioner had offered his personal properties as security for the loan availed by the corporate debtor. From perusal of the sale notice under Rule 8(6) of the Security Interest (Enforcement) Rules, 2002 (Ext.P3), it is clear that because of default in repayment of loan of ₹ 50 crores availed by the corporate debtor, the secured creditor had recalled the entire loan by issuing demand notice under Section 13(2) of the SARFAESI Act on 26.10.2018. It is further seen that possession of assets mortgaged with the secured creditor was also taken by resorting to provisions of the SARFAESI Act. Subsequently, sale notice (Ext.P3) came to be issued.
The argument advanced by the learned counsel for the petitioner that because of pendency of proceedings before the NCLT, parallel proceedings under the SARFAESI Act are not maintainable, needs to be rejected. Even otherwise Section 7 of the Insolvency and Bankruptcy Code has application against the corporate debtor. It cannot be said that there is bar for proceedings against the guarantor under the SARFAESI Act because of pendency of corporate insolvency resolution process against the corporate debtor.
It is the solemn duty of the Court to apply the correct law without waiting for an objection to be raised by a party, especially when the law stands well settled. Any departure, if permissible, has to be of the case falling under a defined exception, duly discussed after noticing the relevant law. In financial matters grant of ex-parte interim orders can have a deleterious effect and it is not sufficient to say that the aggrieved has the remedy to move for vacating the interim order. Loans by financial institutions are granted from public money generated at the tax payers expense. Such loan does not become the property of the person taking the loan, but retains its character of public money given in a fiduciary capacity as entrustment by the public. Timely repayment also ensures liquidity to facilitate loan to another in need, by circulation of the money and cannot be permitted to be blocked by frivolous litigation by those who can afford the luxury of the same.
Petition dismissed.
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2020 (12) TMI 313 - KERALA HIGH COURT
Dishonor of Cheque - legally enforceable debt or not - Rebuttal of presumptions - whether the offence punishable under Section 138 of the N.I.Act is made out against the accused? - Sections 118 and 139 of the N.I.Act - HELD THAT:- Section 118 of the N.I.Act provides certain presumptions to be raised laying down some special rules of evidence relating to presumptions. The presumption, therefore, is a matter of principle to infuse credibility to negotiable instruments including cheques and to encourage and promote the use of negotiable instruments in financial transactions. Section 118 of the N.I.Act provides presumptions to be raised until the contrary is proved, (i) as to consideration, (ii) as to date of instrument, (iii) as to time of acceptance, (iv) as to time of transfer, (v) as to order of indorsements, (vi) as to appropriate stamp, and (vii) as to holder being a holder in due course. That apart, Section 139 of the N.I.Act provides that it shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in Section 138 of the N.I.Act for the discharge, in whole or in part, of any debt or other liability. Applying the definition of the word 'proved' in Section 3 of the Evidence Act to the provisions of Sections 118 and 139 of the N.I.Act, it becomes evident that in a trial under Section 138 of the N.I.Act, a presumption will have to be made that every negotiable instrument was made or drawn for consideration and that it was executed for discharge of debt or liability once the execution of negotiable instrument is either proved or admitted.
The civil court held that the complainant herein was not the owner of the vehicle and the accused was the registered owner of the vehicle. According to the civil court, an owner of the vehicle cannot lease the vehicle to himself. It was further held that the outstanding amount covered under Ext.P4 cheque which was produced as Ext.A5 in the civil case was not proved. Rightly or wrongly, the civil court entered a finding that the amount covered under Ext.P4 was not recoverable from the accused. The said finding has not been set aside in a process known to law. The finding has become conclusive between the parties. Sitting in revision, this Court has no jurisdiction to examine the correctness of the decision taken by the civil court. Going by the tenor of judgment, it is clear that, what was covered under Ext.P4 is not a legally enforceable debt.
In the case on hand, the accused admitted execution of Ext.P4 cheque. His contention is that the amount covered under Ext.P4 is not a legally enforceable debt. The accused adduced evidence before the trial court to show that Ext.P4 cheque had not been issued towards discharge of a legally enforceable debt, but was issued by way of security or any other reason on account of some business transaction between the complainant and the accused. The burden on the part of the accused has been discharged by producing Exts.D1 to D8 before the trial court. DW1 adduced evidence before the trial court to show that he was the owner of the vehicle and the vehicle was repossessed on 22.11.97 illegally by the complainant. He also produced Ext.D7 passbook issued by the complainant - It is true that the standard of proof required in the criminal and civil proceedings are entirely different. Civil cases are decided on the basis of the preponderance of evidence. In a criminal case the entire burden lies on the prosecution and the prosecution is bound to prove the offence beyond reasonable doubt. In Ext.D1 civil case, the cause of action for institution of suit was on the basis of Ext.P4 cheque issued by the accused in favour of the complainant pursuant to a business transaction between the complainant and the accused. The prosecution under Section 138 of the N.I.Act also initiated on the same set of facts.
This Court is of the view that the amount covered under Ext.P4 cheque is not a legally enforceable debt and the finding in Ext.D2 judgment is relevant under the Scheme of the Evidence Act to decide this case. Further, the accused as DW1 adduced evidence to rebut the presumption contemplated under Sections 118 and 139 of the N.I.Act. DW1 adduced evidence to prove that he issued several cheques in favour of the complainant pursuant to the transactions between the parties as security and one of the cheques was utilized by the complainant to file the complaint under Section 138 of the N.I.Act - the accused discharged his burden under Sections 118 and 139 of the N.I.Act to prove that the cheque had not been issued towards a legally enforceable debt. Thus, the trial court as well as the appellate court wrongly appreciated the evidence on record. When the conviction and sentence imposed by the courts below against the revision petitioner/accused are based on untenable grounds, it would be just and proper for the High Court to interfere with the findings of the courts below in exercise of powers under Section 401 of the Cr.P.C.
The conviction and sentence imposed against the revision petitioner/accused by the trial court as well as the appellate court are set aside. The revision petitioner/accused is found not guilty of the offence punishable under Section 138 of the N.I.Act and he is acquitted thereunder - criminal revision petition is allowed.
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2020 (12) TMI 146 - DELHI HIGH COURT
Dishonor of Cheque - legally enforceable debt or not - the petitioner was supposed to prove preponderance of probability that at the time of legal notice - HELD THAT:- Vide the present petition under Section 482 Cr.P.C., the petitioner has sought to combine the Civil Execution Proceedings pending before the Learned Additional District Judge, Tis Hazari Court, Delhi, and the criminal proceedings pending before the Learned Metropolitan Magistrate. The said reliefs cannot be granted since both proceedings are mutually exclusive and are pertaining to different reliefs since one is pending before the Additional District Judge for execution of the settlement decree dated 29.01.2015 and the other is before the Learned Metropolitan Magistrate for compliance of the order of conviction and which has been disposed of vide order 18.01.2020 whereby the petitioner has been declared an absconder after due procedure under Section 82 Cr. P.C. was followed.
The present petition is liable to be dismissed since the Petitioner has not come before this Court with clean hands especially as the Petitioner has defaulted on payments, eventually, it was required to make efforts to satisfy settlement decree dated 29.01.2015. The said settlement decree has attained finality and is liable to be complied with. Hence, the petitioner through the present petition cannot seek to override/appeal/modify the contents of the said Settlement Decree.
The presumption of law, though rebuttable, works in favour of the complainant. However, the presumption gets rebutted if the defence raises a reasonable suspicion in the prosecution story by raising a probable defence. In other words, provided the facts required to form the basis of a presumption of law exist, no discretion is left with the court but to draw the statutory presumption. However, this does not preclude the person against whom the presumption is drawn from rebutting it and proving the contrary - the onus is upon the accused to rebut the presumption raised under Sections 118(a) and 139 of the said Act and the same can be done by accused by either bringing out loopholes in the case of the complainant or by bringing a reasonably probable defence in his favour. Since such case attracts a criminal liability, the burden of proof upon the complainant is to the extent of proving his/her case beyond all reasonable doubts whereas the accused is required to create preponderance of probabilities in this favour.
Admittedly, there has been default, in making payment, on the part of petitioner since July 2011. Despite the decree passed by this Court and conviction by the Trial Court, till date respondent has not received the payment due. The legal fight of the respondent had started from the legal notice dated 11.08.2011 and continued till date. Thus, the respondent was compelled to run from pillar to post. In such circumstances as in the present case, the petitioner deserves no leniency or sympathy.
There is no illegality or perversity in the orders passed by the Trial Court and Appellate Court as well - Petition dismissed.
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2020 (12) TMI 145 - DELHI HIGH COURT
Validity of Lookout Circular (LOC) issued by the respondents against the petitioner - siphoning off funds - illegal transfer of valuable foreign exchange - when the petitioner was intending to travel to Singapore, he was detained at the Indira Gandhi International Airport, Delhi and was informed that an LOC has been issued against him - case of respondents is that that the petitioner has not cooperated with the investigation and his conduct is highly evasive and non-cooperative, thereby justifying issuance of LOC and extension thereof - HELD THAT:- As held by the Supreme Court in MANEKA GANDHI VERSUS UNION OF INDIA [1978 (1) TMI 161 - SUPREME COURT] the right to travel abroad is a fundamental right guaranteed under Article 21 of the Constitution of India.
In Karti P. Chidambaram [2018 (7) TMI 2000 - MADRAS HIGH COURT], the High Court of Madras held that the mandate of the Office Memorandum dated 27.10.2010 would necessarily require the request for issuance of LOC to contain reasons for such request. The condition precedent for issuance of an LOC is therefore, existence of reasons, which should be disclosed in the request for issuance of LOC. The High Court, after referring to Sections 41,41A and 41B of the Code of Criminal Procedure, 1973 further held that the legality and/or validity of LOC has to be adjudged having regard to the circumstances prevailing on the date on which the request for issuance of LOC had been made. It was further held that the LOCs cannot be issued as a matter of course, but when reasons exist, where an accused deliberately evades arrest or does not appear in the Trial Court.
In the present case, there is no doubt that the allegations made against the petitioner are of a grave nature. The petitioner has submitted that the same are false and unsubstantiated, however, this Court need not detain itself on the examination of such allegations. For the purposes of the Impugned LOC, what is relevant to be noted is that the FIR was registered on 08.10.2018. Based thereon, the Enforcement Directorate registered ECIR on 02.07.2019. In undue haste, on 25.07.2019, the Impugned LOC was issued against the petitioner - The only allegation made is that the conduct of the petitioner is evasive and non-cooperative. This cannot be a ground for issuance of a LOC.
Similarly, reliance of the respondents on the amendment made to the Office Memorandum is also unfounded. Though, the said amendment allows a LOC to be issued even in cases not covered by the Guidelines and in economic interest of India, no such case has been made out against the petitioner. It has not been explained how the travel of the petitioner would in any manner prejudice the economic interest of the country. Mere mention of the power in the counter affidavit cannot take the place of giving reasons for exercise of the same.
The Impugned LOC and the extension thereof issued against the petitioner is set aside and quashed - Petition allowed.
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2020 (12) TMI 144 - PUNJAB & HARYANA HIGH COURT
Grant of Regular Bail - petitioner is in judicial custody for the last more than one year and four months and despite the fact that charges were framed on 18.12.2019, out of total 21 prosecution witnesses, not even a single witness has been examined till date - HELD THAT:- Learned State counsel has not disputed the fact that petitioner is on bail all the three other FIRs as well as the fact that petitioner is in judicial custody for the last more than one year and four months and despite the fact that charges were framed in December, 2019, out of total 21 prosecution witnesses, none has been examined so far.
Without commenting upon the merits of the case, considering the submissions of learned counsel for the parties, the instant 3 of 4 petition is allowed - The petitioner is ordered to be released on regular bail on his furnishing bail/surety bonds to the satisfaction of the trial Court/Duty Magistrate/Illaqa Magistrate, concerned.
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2020 (12) TMI 143 - KERALA HIGH COURT
Dishonor of Cheque - acquittal of the accused - rebuttal of presumption - Offence took place or not - HELD THAT:- The trial court acquitted the accused mainly for the reason that, according to the complainant the alleged transaction was in 2003 and the cheque was issued during that period. But the accused submitted that, during that period he was not conducting any textiles business and he proved it. After perusing the entire oral and documentary evidence, the trial court concluded that, the accused rebuttted the presumption. Therefore, the accused is acquitted.
The trial court after considering the entire oral and documentary evidence came to a definite conclusion that, the appellant is not able to proved the offence - the accused was acquitted.
The acquittal order upheld - appeal dismissed.
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2020 (12) TMI 142 - ALLAHABAD HIGH COURT
Dishonor of cheque - drawer of Cheque - submits that sign on the cheque is of Gudia Shukla and not of the applicant and, therefore, he is not the drawer of the cheque and, therefore, summons could not have been issued to him - application did not appear in the Court inspite of the Summons issued - HELD THAT:- It is not in dispute that applicant is the husband of Gudia Shukla. Specific averment has been made in the complainant that it is the applicant, who handed over the cheque in question to the complainant, which got dishonoured for insufficient funds. The question whether the applicant has put his signature on the cheque or not, is the question of evidence, which can be considered at an appropriate stage by the trial court - When the ingredients of Section 138 Negotiable Instruments Act are clearly established prima facie, this Court should not examine the evidence in detail inasmuch as it is for the trial court to examine the evidence whether the applicant has signed the cheque, which got dishonoured or not.
This Court is of the opinion that if the applicant has a remedy under law, then permission from the Court is not necessary. Further, the offence under Section 138 Negotiable Instruments Act is a bailable offence and, the applicant may surrender before the court concerned and furnish bail bonds and thereafter, he may take recourse to the remedy as may be available to him in accordance with law - Application dismissed.
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2020 (12) TMI 141 - GAUHATI HIGH COURT
Hypothecation - recovery of dues - repossession of the hypothecated vehicle from the borrower as borrower defaulted in paying the EMI - Section 19 of the Recovery of Debts and Bankruptcy Act, 1993 - HELD THAT:- The petitioner Madhab Kumar Das has admitted that he purchased the vehicles on loan granted by the PNB, after entering into a hypothecation deed, as indicated above. There is also no denial at all as regards the purchase of four vehicles by the petitioner from the loan sanctioned by the same Bank and about the dues amounting to ₹ 78,79,978.34 to the Bank. It is also an admitted position that the PNB has already filed the O.A. No.328/2018 before the DRT, Guwahati, which is pending at the stage of final hearing. The petitioner/borrower has not at all denied any of the documents referred above about the execution of the hypothecation deed, dated 10.12.2014, as well as taking of loan for four vehicles from the PNB and also about the filing of the claim petition by the PNB before the DRT, rather he has contested the said case also. In view of the fact that the petitioner/borrower is a willful defaulter, whose loan account turns NPA, the PNB after giving proper notice etc., has taken the possession of the vehicle through its recovery agent. So far as the conduct of the Bank, while taking possession of the vehicle, same cannot be held to be illegal one, as in view of the hypothecation deed entered into between the borrower and the financer, the purchaser is merely a trustee/ bailee and the ownership remains with the Bank, till full recovery of the loan amount - In case vehicle is seized by financier, no criminal action can be taken against him as he is repossessing goods owned by him, for violation of conditions of higher purchase agreement/ defaulted in making payment, etc.
The impugned order reveals that the learned trial Court being aware of the fact that the Bank has ground for resuming the possession of the vehicle, has not taken any cognizance against them under Sections 420/406/120B of the IPC but has taken cognizance only against the offence under Section 323/506 of the IPC. That being so, the Court has erred in passing the order dated 28.11.2018, to accommodate the petitioner/borrower to take the interim custody of the vehicle on certain payment and other conditions. Such an order was passed even after objection raised by the Bank, as huge amount of dues was pending as against the borrower. This is more particularly so as because the matter was sub-judice before the DRT, Guwahati, for recovery of outstanding dues and the possession of the vehicle. The petitioner/borrower who is a willful defaulter, after repeated assurance/promise cannot be given indulgence again and again to repay his loan and the Bank is at liberty to go for legal recourse which they have already adhered to, by filing application before the DRT.
The prayer of the petitioner Madhab Kumar Das, made in the instant petition indicates that he is still willing to get back the vehicles without any payment of dues as indicated in the order dated 28.11.2018, which sufficiently indicates that he is not willing to pay the amount due to the Bank but simply want to posses the vehicles without any condition, which however cannot be allowed to prevail.
Petition disposed off.
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2020 (12) TMI 139 - SUPREME COURT
Smuggling - Ganja - appellant was found to be in possession of 6.300 kilogram of Ganja - within commercial quantity or not - HELD THAT:- When the quantity/Ganja recovered from the appellant was 6.300 kilogram, which is between small quantity and commercial quantity and considering the fact that the maximum punishment for such offence is 10 years rigorous imprisonment, out of which the appellant has already undergone six years rigorous imprisonment, we allow the present appeal in part and modify the impugned judgment and order passed by the learned trial Court, confirmed by the High Court, to the extent of imposing the sentence of six years rigorous imprisonment in place of ten years rigorous imprisonment as imposed by the learned trial Court and confirmed by the High Court.
Rest of the judgment and order passed by the learned trial Court, confirmed by the High Court, is hereby confirmed.
Appeal allowed in part.
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2020 (12) TMI 137 - DELHI HIGH COURT
Dishonor of Cheque - whether as per the averments made in the legal notice, complaint and the presummoning evidence, the petitioner at the time of commission of offence was in charge of and responsible for the conduct of the business of the company and its day-to-day affairs?
HELD THAT:- In the present case, it is seen that in the legal notice issued by complainant company, a bald assertion was made that the co-accused i.e., Krishan Gopal Goyal (petitioner’s husband) along with the petitioner had approached the complainant company for being appointed as their authorized distributor and subsequently, at the time when products were provided, they were received/acknowledged by M/s Beyond Tele Private Limited through both of its directors and other representatives. It was also stated that M/s Beyond Tele Private Limited, under instructions from both the directors, had issued the impugned cheque.
The complainant company acknowledged the receipt of the reply however, despite coming to know of the aforesaid stand of the petitioner, no specific or further details regarding the date, time and place of the meetings with the petitioner were mentioned either in the complaint filed under Section 138 read with Section 142 of the N.I. Act or in the pre-summoning evidence. Even in the present proceedings, only written submissions have been filed but no reply has been filed by the complainant company either specifically denying the petitioner’s stand or giving any further details qua the petitioner. A combined reading of the legal notice, the complaint as well as the pre-summoning evidence would show that in spite of the aforementioned specific stand taken on behalf of the petitioner, no additional averment has come detailing the role of the petitioner either in the complaint or in the pre-summoning evidence.
Admittedly, the present petitioner neither signed the cheque in question nor signed nor witnessed the Distributorship Agreement. In fact, it has not even been averred that the petitioner was even present at the time of signing the agreement. The person who has signed the cheque in question and the Distributorship Agreement i.e., Krishan Gopal Goyal (husband of the petitioner) as well as the company i.e., M/s Beyond Tele Private Limited have also been summoned as accused in the complaint case along with the present petitioner. The present petition has been filed only on behalf of the petitioner.
Thus, necessary ingredients required to constitute the offence under Section 141 of the N.I. Act qua the present petitioner are not satisfied - petition allowed.
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2020 (12) TMI 62 - KERALA HIGH COURT
Dishonor of Cheque - insufficiency of funds - offence punishable under Section 138 of the NI Act or not - existence of debt and liability or not - rebuttal of presumptions - Sections 118 and 139 of the NI Act - HELD THAT:- It is well settled law that when concurrent findings of facts rendered by the trial court and the appellate court are sought to be set aside in revision, the High Court does not, in the absence of perversity, upset factual findings arrived at by the two courts below. It is not for the revisional court to re-analyse and reinterpret the evidence on record in a case, where the trial court has come to a probable conclusion. Unless the contrary is proved, it is presumed that the holder of a cheque received the cheque of the nature referred to in Section 138 of the NI Act for the discharge, in whole or in part, of any debt or other liability. In the case at hand, the accused has no case that she has not signed the cheque or parted with under any threat or coercion. That apart, the accused has no case that unfilled cheque had been lost irrecoverably or stolen. The accused failed to prove in the trial by leading cogent evidence that there was no debt or liability.
Both the trial court and the appellate court rightly held that the burden was on the accused to disprove the initial presumption under Sections 118 and 139 of the NI Act. The burden is not discharged rightly. The complaint was filed before the trial court in 2006. The complainant has been prosecuting this case for the last 14 years. The accused has not adduced rebuttal evidence before the trial court. It is not just and proper to remand the case for retrial on the strength of the additional documents produced.
The accused has been conducting this criminal case for the last 14 years. Considering the facts and circumstances, it is just and proper to modify the sentence awarded by the two courts below by sustaining the conviction imposed - criminal revision petition is partly allowed.
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2020 (12) TMI 61 - ALLAHABAD HIGH COURT
Grant of Bail - bail was granted on the condition of deposit 35% of the amount imposed as fine by the learned Magistrate - entire conspiracy to grab the agricultural land of father of applicant against which a civil suit is also pending - HELD THAT:- Identical issue decided in the case of Yatendra Bharadwaj [2018 (5) TMI 2027 - ALLAHABAD HIGH COURT] where it was held that
The benefit of the said order may be extended to the applicant also - order passed by learned Sessions Judge Agra are hereby modified to the extent that the applicant shall deposit only 10% of the amount of fine of ₹ 75,00,000/- imposed by the appellate Court as a pre-condition for being released on bail and on furnishing a personal bond of ₹ 20,000/- and two sureties of the like amount to the satisfaction of the court concerned till the disposal of the appeal - application allowed in part.
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