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Indian Laws - Case Laws
Showing 21 to 40 of 78 Records
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2021 (1) TMI 1214
Dishonor of Cheque - insufficiency of funds - whether the Judgments of courts below suffer from any incorrectness, illegality and impropriety in convicting and sentencing the petitioner for the offence under section 138 of Negotiable Instruments Act? - HELD THAT:- The petitioner admitted the cheque as his cheque and the signature in the cheque as his signature. Admittedly, the cheque had been returned, since there was no funds in the account of the petitioner when the cheque was presented for collection.
The learned counsel for the respondent submitted that nowhere in the reply, the petitioner has stated with regard to the alleged chit transaction and depositing the cheque as a security for chit transaction. Ex.P.7 Account statement shows that the respondent had sufficient means to lend the amount of ₹ 5,00,000/- to the petitioner. Moreover, there is presumption under 139 of the Negotiable Instruments Act that a cheque had been issued towards discharging the legally enforceable debt or liability, unless the contrary is proved. The petitioner did not prove the contrary fact against the fact of issuance of cheque for discharging the debt and return of the cheque for the reason that there was no funds in the account of the petitioner.
With regard to burden of proof, it is said that whereas the prosecution must prove the guilt of an accused beyond all reasonable doubt, the standard of proof to prove a defence on the part of an accused is preponderance of probability. Inference of preponderance of probability can be drawn not only from the materials brought on record by the parties but also by reference to circumstances upon which he relies.
When there is no material to show that the respondent is a regular income tax assessee and he has been regularly filing income tax returns, this Court is of the considered view that on the basis of Ex.P.7 one cannot come to the conclusion that the respondent has sufficient means to lend a sum of ₹ 5,00,000/- to the petitioner, especially when the petitioner said that he had no prior acquaintance with the respondent - It is seen from the evidence of PW-1 that he did not know the petitioner prior to lending a huge sum of ₹ 5,00,000/-. He came to know about the petitioner through one Rajendran. He did not even know the address of the said Rajendran. He did not get any supporting document like a promissory note to evidence the loan transaction. These aspects strengthens the case of the petitioner that the cheque he gave to Sathyan as a security for chit transaction is misused through the respondent. It is true that the petitioner has not happily worded in the reply that the cheque in question was given as security to Sathyan in chit transaction - There is no denial of the fact that Satyan is the close relative of the respondent. The fact that the respondent had not produced any acceptable evidence to show that he has means to lend a sum of ₹ 5,00,000/- to the petitioner, when seen in the backdrop of the case projected by the petitioner that the cheque was given as security in the chit rune by Satyan, probalised the case of the petitioner that the cheque which was given as security in the chit transaction is misused by the respondent.
Both the Trial court and the Appellate court have not considered these vital aspects while proceeding to dispose the case and heavily placed reliance on the presumption under section 139 of the Negotiable Instruments Act, without minding that this provision merely raises a presumption in favour of a holder of the cheque that the same has been issued for discharge of any debt or other liability. However, this presumption does not extend to the existence of a debt also. Existence of a legally enforceable debt is not a matter of presumption under section 139 of Negotiable Instruments Act - this court concludes that the judgments of the court below in convicting and sentencing the petitioner under Section 138 of Negotiable Instruments Act is not in consonance with established fats and position of law and has to be necessarily set aside.
Petition allowed.
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2021 (1) TMI 1210
Seeking termination of the mandate of originally constituted Arbitral Tribunal - Seeking to appoint a new arbitrator - Section 14 read with Sections 11 and 15 of the Arbitration and Conciliation Act, 1996 - HELD THAT:- The Arbitral Tribunal – Stationery Purchase Committee consisted of officers of the respondent-State. Therefore, as per Amendment Act, 2015 – Sub-section (5) of Section 12 read with Seventh Schedule, all of them have become ineligible to become arbitrators and to continue as arbitrators. Section 12 has been amended by Amendment Act, 2015 based on the recommendations of the Law Commission, which specifically dealt with the issue of “neutrality of arbitrators”. To achieve the main purpose for amending the provision, namely, to provide for “neutrality of arbitrators”, sub-section (5) of Section 12 lays down that notwithstanding any prior agreement to the contrary, any person whose relationship with the parties or counsel or the subject matter of the dispute falls under any of the categories specified in the Seventh Schedule, he shall be ineligible to be appointed as an arbitrator. In such an eventuality, i.e., when the arbitration clause is found to be foul with the amended provision, the appointment of the arbitrator would be beyond the pale of the arbitration agreement, empowering the Court to appoint such an arbitrator as may be permissible.
It cannot be disputed that in the present case, the Stationery Purchase Committee -Arbitral Tribunal comprising of officers of the respondent-State are all ineligible to become and/or to continue as arbitrators in view of the mandate of sub-section (5) of Section 12 read with Seventh Schedule. Therefore, by operation of law and by amending Section 12 and bringing on statute sub-section (5) of Section 12 read with Seventh Schedule, the earlier Arbitral Tribunal – Stationery Purchase Committee comprising of Additional Secretary, Department of Revenue as President and (i) Deputy Secretary, Department of Revenue, (ii) Deputy Secretary, General Administration Department, (iii) Deputy Secretary, Department of Finance, (iv) Deputy Secretary/Under Secretary, General Administration Department and (v) Senior Deputy Controller of Head Office, Printing as Members, has lost its mandate and such an Arbitral Tribunal cannot be permitted to continue and therefore a fresh arbitrator has to be appointed as per Arbitration Act, 1996.
This Court also negatived the submission that as the contractor participated in the arbitration proceedings before the arbitrator therefore subsequently, he ought not to have approached the High Court for appointment of a fresh arbitrator under Section 11 of the Arbitration Act, 1996.
Appeal allowed.
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2021 (1) TMI 1197
Dishonor of Cheque - as per the terms of the compromise the complainant/appellant was required to withdraw the civil suit filed before the trial Court, but he has failed to fulfill his obligation - HELD THAT:- It is the duty of the appellate Court to look into the evidence adduced in the case and arrive at an independent conclusion as to whether the facts and circumstances of the case and evidence relied on by the parties is sufficient to prove the guilt of the accused. The law clearly expects the appellate Court to dispose of the appeal on merits and not merely perusing the reasoning of the trial Court in the judgment, but by cross checking the reasoning and material on record. In the instant case strangely the accused has been convicted without there being sufficient evidence and only on the basis of the joint memo filed by the parties.
Admittedly as per the terms of the joint memo the complainant/appellant has received the entire cheque amount of ₹ 90,000/-. When there was satisfaction of the entire claim by the accused, the complainant/appellant was duty bound to withdraw the civil suit filed before the trial Court as agreed by him in the joint memo. The complainant has failed to fulfill his obligation and has managed to get a decree for recovery of a sum of ₹ 21,000/-. Under these circumstances if these criminal cases are remanded back to the trial Court for fresh trial as ordered by the Sessions Court it would be nothing but abuse of process of law.
The accused is acquitted for the charges leveled against her for the offences punishable under Section 138 of the Negotiable Instruments Act - Appeal dismissed.
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2021 (1) TMI 1185
Dishonor of Cheque - insufficiency of funds - Rebuttal of presumption - preponderance of probability - section 138 of NI Act - HELD THAT:- The signature of the petitioner in the cheque has not been disputed and the only dispute is that the petitioner has not borrowed money from the respondent and not issued the cheque, whereas he admitted that he borrowed money from one N.K.Krishnan who is a close relative of the respondent/complainant and he also stated that he repaid the money to him, but the said N.K.Krishnan failed to return the cheque, for which the petitioner has not taken any steps in the manner known to law either by issuing notice to said N.K.Krishnan to get back the cheque or by filing any complaint after sending notice to him. Therefore, the defense taken by the petitioner is not sustainable.
The petitioner has not proved that the respondent has no capacity or means to lend the money and therefore, the contention of the learned counsel for the petitioner on the ground of means to lend the loan is not acceptable and the same is rejected.
Once the petitioner had not denied the signature and also not established that cheque was given to one N.K.Krishnan and not to the respondent and on what date he borrowed money from N.K.Krishnan and repaid the money and on what date again he asked the cheque, the learned Magistrate and the District Judge has rightly convicted the petitioner by appreciating the evidence and materials placed before them - A reading of the entire materials on record shows that the signature was not in dispute and the defense taken by the petitioner relating to issuance of cheque to N.K.Krishnan is not established and lending capacity of the respondent also not disproved. Therefore when the signature is not in dispute, the presumption under Section 139 of the Negotiable Instruments Act has come into picture. No doubt presumption need not be rebutted by direct evidence and it can be rebutted by preponderance of probability, the presumption under Section 139 of Negotiable Instruments Act is a rebuttable presumption. But, the petitioner has not rebutted the presumption in the manner known to law.
This Court does not find any perversity, infirmity of illegality in the orders passed by the Courts below and the revision is liable to be dismissed - Revision dismissed.
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2021 (1) TMI 1184
Seeking the release of the passport of the petitioner - requirement of petitioner to visit America before September, 2021, failing which he will loose the benefit of green card - HELD THAT:- Let the affidavit as being requested be filed before the next date of hearing with an advance copy to learned counsel for the respondents.
Adjourned to 22.06.2021.
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2021 (1) TMI 1182
Dishonor of Cheque - existence of legally recoverable debt or not - mis-use of cheque - section 138 of NI Act - HELD THAT:- A mere denial that the cheque is not issued for legally recoverable debt would not be sufficient enough to hold that there was no legally recoverable debt on record. The materials on record has been properly considered by the learned Magistrate which was re-appreciated by the learned Principal District and Sessions Judge in the first appeal. In such circumstances, even after perusing the records and in the light of the arguments advanced on behalf of the Revision Petitioner, this court does not find any patent defect on record nor there is any error of jurisdiction or law which would entitle the accused to seek for interference by this court in this Revision Petition.
The sentence passed by the learned Magistrate which is confirmed by the first Appellate Court in so far as the simple imprisonment is concerned is excessive as there is no reason assigned for awarding simple imprisonment. Since there is no fine amount ordered against the State, if Revision Petitioner in ordered to pay fine of ₹ 3,05,000/- for the offence punishable under Section 138 of the Negotiable Instruments Act and ordering sum of ₹ 5,000/- as fine to the State and maintaining the compensation amount payable to the complainant in a sum of ₹ 3,00,000/- would meet the ends of justice.
The Revision Petition is allowed in part while maintaining the conviction for the offence punishable under Section 138 of the Negotiable Instruments Act, the Order passed by the learned Magistrate, which is confirmed by the first Appellate Court is hereby set aside.
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2021 (1) TMI 1181
Dishonor of Cheque - defence taken by the accused is that the cheque was given in the year 2006 itself in respect of some other transaction, but it has been retained by the complainant and later it was mis-used by him - Section 138 of the Negotiable Instruments Act - HELD THAT:- It is pertinent to note that though accused has taken a stand that cheque in question at Ex.P-1 was issued in the year 2006, to establish the same, what prevented the accused to summon the Cheque Issue Register from the Bank. So also, nothing prevented the accused to show that there was a previous transaction wherein he had tendered the cheque to the complainant by producing the counterfoil or the slips attached to the cheque book, wherein necessary details are entered by the accused during the usual course. When accused has taken the plea that the cheque came to be issued in the year 2006, it is for him to establish that cheque in fact was issued in the year 2006 and he has honoured the cheque which is preceding Ex.P-1 and which has been issued subsequent to Ex.P-1. But, no such evidence is placed by the accused in this regard. It is also pertinent to note that there was no reply sent by the accused to the statutory notice - In the absence of such evidence placed by the accused, this court is of the considered opinion that the finding recorded by the learned Magistrate which was upheld by the first Appellate Court that the accused has failed to establish his defence and failed to rebut the presumption available to the complainant u/s.139 of the Negotiable Instruments Act, is based on sound legal principles and does not suffer from any legal infirmity whatsoever.
The finding recorded by the learned Magistrate and the first Appellate Court that accused has committed an offence punishable under Section 138 of the Negotiable Instruments Act is not suffering from any patent defect or error of jurisdiction nor suffering from illegality.
Admittedly, the Trial Court has taken into consideration the cheque while sentencing the accused. The learned Magistrate has convicted the accused for the offence punishable under Section 138 of the Negotiable Instruments Act and ordered to pay a fine of ₹ 1,98,000/- and out of that a sum of ₹ 1,93,000/- is ordered to pay as compensation which is the cheque amount and a sum of ₹ 5,000/- is ordered to pay as fine to the State with a default sentence - In the considered opinion of this court, when the accused has failed to establish his defence, the sentence passed by the learned Magistrate and confirmed by the first Appellate Court ordering only fine amount to the extent of the cheque amount as compensation is perfectly justified in the facts and circumstances of the case. Accordingly, there is no need for interference of the order of the learned Magistrate confirmed by the first Appellate Court.
Revision petition dismissed.
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2021 (1) TMI 1176
Seeking grant of bail - conspiracy to create enmity between different groups of people on grounds of religion, race, place of birth, residence, language and did acts prejudicial to maintenance of harmony - sections 120B, 124A, 153B of the Indian Penal Code (IPC) and sections 18 and 39 of the Unlawful Activities (Prevention) Act, 1967 - HELD THAT:- The Court is unable to hold that the violent protests throughout the State did not and/or could not have had any terrorizing effect on the harmony of the innocent public at large, rather, the Court is of the considered opinion that on being provoked by the appellant, as the violent protests by burning of tyres had caused rail, highway and internal road blockade, the same is sufficient to give rise to a critical law and order situation that as a whole had threatened the security of the State. The acts of violent protests were aimed to strike terror in all sections of people in India irrespective of caste creed and religion. Moreover, by burning inflammable substance, the supplies essential for life of community in the Country was disrupted. By use of violence the appellant led mob had brushed aside the noble concept of non-violent protest, which is popularly known as satyagraha and that such conduct of paralyzing the Govt. machinery, causing economic blockade, causing enmity between groups, disruption of public peace an widespread disharmony and dissatisfaction towards the Govt., are acts which are prejudicial for national integration and such acts squarely falls within the definition of "terrorist act" as defined in section 15 of the UA (P) Act.
Having regard to the requirement of section 43D (5) of the UA (P) Act, the Court is unable to record its satisfaction that the materials brought on record, in all probability, may not lead to conviction. The materials on record prima facie disclose culpability of the appellant and his involvement in the commission of alleged offences as morefully mentioned in the charge-sheet. It may be mentioned that the Court is conscious of the fact that the duty of the Court at this stage is not to weigh the evidence meticulously but to arrive at a finding on the basis of broad probabilities - The act of blocking of the public road, disrupting free flow/movement of essential goods to the public in the State, setting fire to public offices and vehicles in the garb of public protest certainly cannot be termed as peaceful democratic protests in law. In that view of the constitutional provisions, the Court is of the considered view that in the backdrop of facts and circumstances that emerged from the documents on record, it cannot conclusively be said at the present stage of trial of the case that the appellant has been unreasonably deprived of the right of Article 21 of the Constitution of India.
The materials relied upon by the prosecution prima facie shows that cadre/members of KMSS were trained in the use of firearms and explosives and that the appellant had not only led the protests, but had provoked people to join him and that upon directions issued by the appellant, the supplies essential to life of the community of the Country was disrupted in the State. The appellant's call was instrumental in violent protests, and damage or destruction to vehicles of military and para-military forces, which were to be used for defence of the Country.
The Court does not find any infirmity in the finding returned by the learned Special Judge (NIA) that there are reasonable grounds for believing that the accusation of commission of offences punishable under Chapter IV and VI of UA (P) Act against the appellant is prima face true. Considering the express bar imposed by section 43D (5) of the UA (P) Act, the appellant cannot be released on bail - Appeal dismissed.
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2021 (1) TMI 1171
Condonation of delay of 502 days - explanation given in the application for condonation of delay which gives only a saga of moving of file from one place to the other and that too with long interludes - HELD THAT:- The objective is to complete a mere formality and save the skin of the officers who may be in default in following the due process or may have done it deliberately. We have deprecated such practice and process and we do so again. We refuse to grant such certificates and if the Government/public authorities suffer losses, it is time when concerned officers responsible for the same, bear the consequences. The irony, emphasized by us repeatedly, is that no action is ever taken against the officers and if the Court pushes it, some mild warning is all that happens.
Looking to the period of delay and the casual manner in which the application has been worded, we consider appropriate to impose costs on the petitioner(s) of ₹ 25,000/- for wastage of judicial time which has its own value and the same be deposited with the Supreme Court Advocates on Record Welfare Fund within four weeks - The Special Leave Petition is dismissed as time barred.
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2021 (1) TMI 1170
Condonation of delay of 1288 days in filing application - cogent or plausible ground for condonation of delay, given or not - HELD THAT:- The leeway which was given to the Government/public authorities on account of innate inefficiencies was the result of certain orders of this Court which came at a time when technology had not advanced and thus, greater indulgence was shown.
The “certificate cases” filed with the only object to obtain a quietus from the Supreme Court on the ground that nothing could be done because the highest Court has dismissed the appeal. The objective is to complete a mere formality and save the skin of the officers who may be in default in following the due process or may have done it deliberately. We have deprecated such practice and process and we do so again.
Looking to the period of delay and the casual manner in which the application has been worded, we consider appropriate to impose costs on the petitioner(s) of ₹ 25,000/- for wastage of judicial time which has its own value and the same be deposited with the Supreme Court Employees Welfare Fund within four weeks - Special Leave Petition is dismissed as time barred
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2021 (1) TMI 1169
Condonation of delay of 427 days in filing application - certificate cases - HELD THAT:- The casual manner in which the State Government has approached this Court without any cogent or plausible ground for condonation of delay is clear. In fact other than the lethargy and incompetence of the petitioner Government, there is nothing which has been put on record. We have repeatedly discouraged State Governments and public authorities in adopting an approach that they can walk in to the Supreme Court as and when they please ignoring the period of limitation prescribed by the Statutes as if the Limitation statute does not apply to them.
We have also categorized such kind of cases as “certificate cases” filed with the only object to obtain a quietus from the Supreme Court on the ground that nothing could be done because the highest Court had dismissed the appeal. The objective is to complete a mere formality and save the skin of the officers who may be in default in following the due process or may have done it deliberately - The irony, emphasized by us repeatedly, is that no action is ever taken against the officers and if the Court pushes it, some mild warning is all that happens.
Looking to the period of delay and the casual manner in which the application has been worded, we consider appropriate to impose costs on the petitioner/State of ₹ 25,000/- for wastage of judicial time, which has its own value and the same be deposited with the Supreme Court Advocates On Record Welfare Fund within four weeks - SLP dismissed as time barred.
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2021 (1) TMI 1164
Rejection of anticipatory bail - specious reason of change in circumstances - HELD THAT:- As a matter of fact, successive anticipatory bail applications ought not to be entertained and more so, when the case diary and the status report, clearly indicated that the accused (respondent No. 2) is absconding and not cooperating with the investigation. The specious reason of change in circumstances cannot be invoked for successive anticipatory bail applications, once it is rejected by a speaking order and that too by the same Judge.
We refrain from making any further observation, except to observe, that the impugned order, to say the least, is perverse; and also because no prejudice should be caused to respondent No.2 and affect the trial against him - the impugned judgment and order is set aside. The Investigating Officer is free to take respondent No. 2 into custody forthwith.
Appeal allowed - decided in favor of appellant.
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2021 (1) TMI 1163
Seeking withdrawal of SLP - time limitation - HELD THAT:- This writ petition is dismissed as withdrawn with a liberty to the petitioner to file a fresh writ petition to the extent the law permits him. Further, considering the fact that the commodities involved in the appeal before the appellate authority are perishable commodities, the appellate authority is directed to dispose of the appeal at the earliest but not later than one month from the date of receipt of a copy of this order.
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2021 (1) TMI 1138
Issue notice to the respondents returnable within two weeks - As an interim measure, the proceeding initiated vide the impugned show-cause notice shall remain in abeyance till the next date.
List on 25.01.2021.
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2021 (1) TMI 1128
Condonation of delay of 545 qua the order in Writ Appeal - Writ Appeal itself was preferred after a delay of 783 days - proper explanation for delay not provided - certificate cases - HELD THAT:- In the present case, the State Government has not even taken the trouble of citing any reason or excuse nor any dates given in respect of the period for which condonation is sought. The objective of such an exercise has also been elucidated by us in the aforesaid judgment where we have categorized such cases as “certificate cases” - The object of such cases appears to be to obtain a certificate of dismissal from the Supreme Court to put a quietus to the issue and thus, say nothing could done because the highest Court has dismissed the appeal. It is mere completion of formality to give a quietus to the litigation and save the skin of the officers who may be at fault by not taking action in prescribed time. If the state government feels that they have suffered losses, then it must fix responsibility on concerned officers for their inaction but that ironically never happens. These matters are preferred on a presumption as if this Court will condone the delay in every case, if the State Government is able to say something on merits.
SLP dismissed as time barred.
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2021 (1) TMI 1123
Claim for compensation on death of dependency - Re-computation is sought of compensation for loss of dependency - HELD THAT:- The United Nations Committee on the Elimination of Discrimination against Women adopted General Recommendation No. 17 on the "Measurement and quantification of the unremunerated domestic activities of women and their recognition in the gross national product' in 1991. The General Recommendation affirmed that "the measurement and quantification of the unremunerated domestic activities of women, which contribute to development in each country, will help to reveal the de facto economic role of women" - It is worth noting that the above General Recommendation is passed in furtherance of Article 11 of the Convention on the Elimination of All Forms of Discrimination against Women which relates to ending discrimination against women in the field of employment, a Convention that India has ratified.
The issue of fixing notional income for a homemaker, therefore, serves extremely important functions. It is a recognition of the multitude of women who are engaged in this activity, whether by choice or as a result of social/cultural norms - Returning to the question of how such notional income of a homemaker is to be calculated, there can be no fixed approach.
Grant of compensation, on a pecuniary basis, with respect to a homemaker, is a settled proposition of law - Taking into account the gendered nature of housework, with an overwhelming percentage of women being engaged in the same as compared to men, the fixing of notional income of a homemaker attains special significance. It becomes a recognition of the work, labour and sacrifices of homemakers and a reflection of changing attitudes. It is also in furtherance of our nation's international law obligations and our constitutional vision of social equality and ensuring dignity to all - The granting of future prospects, on the notional income calculated in such cases, is a component of just compensation.
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2021 (1) TMI 1121
Doctrine of separability of an arbitration agreement from the underlying substantive contract in which it is embedded - validity of arbitration agreement if the underlying contract was not stamped as per the relevant Stamp Act - fraudulent invocation of the bank guarantee furnished under the substantive contract - arbitral dispute or not.
HELD THAT:- It is deemed appropriate to refer the following issue, to be authoritatively settled by a Constitution bench of five judges of this Court:
Whether the statutory bar contained in Section 35 of the Indian Stamp Act, 1899 applicable to instruments chargeable to Stamp Duty Under Section 3 read with the Schedule to the Act, would also render the arbitration agreement contained in such an instrument, which is not chargeable to payment of stamp duty, as being non-existent, unenforceable, or invalid, pending payment of stamp duty on the substantive contract/instrument?
The Registry may place this matter before the Hon'ble Chief Justice of India for appropriate orders/directions.
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2021 (1) TMI 1114
Maintainability of petition - requirement of Non Banking Finance companies (NBFC) to take registration from RBI to conduct business - seeking directions to register the information of alleged cognizable offences committed under the Reserve Bank of India Act - withdrawal made by the petitioner of the PIL filed before this Court - principles of res judicata.
Whether the present writ petition is maintainable in view of the orders passed by the Delhi High Court, as also withdrawal made by the petitioner of the PIL filed before this Court? - HELD THAT:- In pursuance of the directions of the Delhi High Court in INDIA AWAKE FOR TRANSPARENCY VERSUS UNION OF INDIA REPRESENTED BY SECRETARY DEPARTMENT OF FINANCIAL SERVICES MINISTRY OF FINANCE AND ORS [2017 (5) TMI 1757 - DELHI HIGH COURT] has been passed by RBI - the releifs sought for by the petitioner in the PCR is for the RBI to take action against the Respondents 2 to 7 on the basis of the allegation that the Respondents 2 to 7 have violated Section 45-IA of the RBI Act, the RBI having already considered the said request and passed an order according to RBI dated 05.09.2017, the reliefs sought for in the PCR cannot be granted, as such the question of issuance of a certiorari to quash the order dismissing the PCR, restoring the PCR and issuing directions to the RBI to consider the alleged offence would also not arise. The RBI having contended that the letter dated 05.09.2017 is an order, the Petitioner would be at liberty to challenge the same in accordance with law.
The present writ petition is not maintainable in view of the orders passed by the Hon’ble Delhi High Court, as also withdrawal made by the petitioner of the PIL filed before this Court as also the order passed by the RBI dated 05.09.2017.
Whether the orders passed by the Delhi High Court, as also the order of withdrawal passed by the Division Bench of this Court would amount to rejudicata? - HELD THAT:- The order of the Delhi High Court was only a direction to the RBI to consider the complaints and pass an order. Such a direction not being one on merits cannot be termed to operate as resjudicata. For an order to operate as resjudicata it has to be passed on merits between the same parties - The order of the Hon'ble Delhi High Court would not qualify to be that passed between the same parties since the parties in the present matter are different and as such, the said order would not operate as rejudicata - thus, the orders passed by the Delhi High Court, as also the order of withdrawal passed by the Division Bench of this Court would not amount to rejudicata.
The writ petition filed is an abuse of process of law and of this Court, the same is not maintainable. The grievance of the petitioner has already been addressed by RBI by its order dated 5.09.2017 passed. If at all the petitioner has any grievance as regards the said order, the petitioner is required to take adequate and necessary steps not by filing of proceedings by way of a private complaint before the Magistrate or by way of writ petition before this Court - Petition dismissed.
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2021 (1) TMI 1113
Maintainability of petition - assets removed from the companies - seeking constitution of Multi disciplinary investigation team to investigate the matter - violation of provisions of SEBI Act - HELD THAT:- In Sarguja Transport Services, [1986 (11) TMI 377 - SUPREME COURT] it is held by the Apex Court that the principle underlying in Rule 1 of Order XXIII. of Code of Civil Procedure should be extended in the interest of administration of justice to the cazes of withdrawal of writ petition also, not on the ground of res judicata but on the ground of 'public policy'. It is further held that while the of a writ petition filed in a High Court without permission to file a fresh writ petition may not bar other remedies like a suit or a petition under Article 32 of the Constitution of India since such withdrawal does not amount to res judicata, the remedy under Article 226 of the Constitution of India should be deemed to have been abandoned by the petitioner in respect of the cause of action relied on in the writ petition when he withdraws it without permission.
A careful perusal of the representations annexed to the PIL and this writ petition show that the grievance of the petitioner; is one and the same so far as violation of provisions of SEB] Act and Regulations are concerned. Admittedly, petitioner bas withdrawn the PIL unconditionally. Therefore, this writ petition cannot be entertained in view of law laid down in Sarguja Transport Service.
Petition dismissed.
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2021 (1) TMI 1112
Maintainability of petition - Money Laundering - scheduled offences - seeking constitution of multidisciplinary investigation team to investigate and prosecute respondent No. 11 and his associates for the offences alleged to have been committed by them - Direction against the Enforcement Directorate to register a case for offences of money laundering arising out of the scheduled offences - HELD THAT:- In Sakiri Vasu Vs. State of Uttar Pradesh and Others [2007 (12) TMI 485 - SUPREME COURT], the Apex Court has held that when some one has a grievance that his FIR has not been registered and he rushes to High Court with a writ petition or a petition under Section 482 Cr-P.C., High Court should not encourage this practice and ordinarily refuse to interfere in such matters and relegate the petitioner to his alternative remedy.
Admittedly, petitioner has filed a petition under Section 190(1)(c) read with Section 156(3) of Code of Criminal Procedure before the Special PMLA Court.
This writ petition is not maintainable on the ground of public policy is sustained - petition dismissed.
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