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Indian Laws - Case Laws
Showing 41 to 60 of 78 Records
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2021 (1) TMI 1054
Maintainability of application - prosecution to draw second sample from the recovered case property - Smuggling - Heroin - HELD THAT:- The impugned order cannot be sustained and is bound to be set aside, since the case in hand is squarely covered by the judgments referred to by the learned counsel for the petitioner and in Amarjit Singh's case [2011 (3) TMI 1805 - PUNJAB AND HARYANA HIGH COURT], this eventuality has been dealt with holding that re-drawing of sample cannot be got done by the prosecution simply because it is not satisfied by the report received with regard to the first sample sent to the FSL.
Petition allowed.
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2021 (1) TMI 1053
Smuggling - contraband narcotics - compliance of Section 50 of the Act or not? - HELD THAT:- Admittedly, the said contraband narcotic was recovered from personal search of appellant Munnan, concealed in his belly region below kurta and lunghi, worn by him. In addition to above, consent memo (Ex.Ka.4) was prepared in presence of police party and appellant Munnan. According to prosecution, the said recovery was made by S.I. Narendra Singh Yadav (PW-4) in presence of S.I. Kripa Shankar Dixit, S.I. Mukhram Yadav (PW-3), Constable 194 Chandrika Prasad and Constable Kamlesh Mishra (PW-2) who have put their signatures on recovery memo (Ex.Ka.5) but the consent memo (Ex.Ka.4), prepared by S.I. Kripa Shankar Dixit does not show the signature either of S.I. Mukhram Yadav (PW-3) or Const. Chandrika Prasad or Const. Kamlesh Mishra (PW-2).
Mukhram Yadav (PW-3) has stated that the said consent memo (Ex.Ka.4) was prepared by S.I. Kripa Shankar Dixit which was read over to the appellant and thereafter the appellant put his thumb impression and S.I. Kripa Shankar Dixit had also put his signature. This witness has not stated that Narendra Singh Yadav (PW-4) had also put his signature on this consent memo (Ex.Ka.4), whereas, Narendra Singh Yadav has stated that on consent memo (Ex.Ka.4), prepared by S.I. Kripa Shankar Dixit, he had also put his signature - Admittedly, S.I. Kripa Shankar Dixit, who was star witness of the prosecution, who prepared the consent memo (Ex.Ka.4) and recovery memo (Ex.Ka.5) and the said recovery was made in his presence has not been examined by the prosecution and the prosecution has also not given any explanation, as to why, this important witness was not examined. Thus, in view of the above, the consent for search, given by the appellant, before his personal search as well as the preparation of consent memo is also doubtful.
The prosecution has failed to prove the compliance of mandatory provision of Section 50 of the Act, whereby the prosecution story as well as said recovery, becomes doubtful.
The prosecution has miserably failed to prove its case beyond reasonable doubt, against the appellant. The trial Court, without considering, the compliance of mandatory provision of N.D.P.S Act, has passed the said impugned judgment and order in cursory manner which is liable to be set aside - appellant is on bail. His bail bonds are cancelled and sureties are discharged - Appellant is acquitted and the appeal is allowed.
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2021 (1) TMI 963
Grant of Bail - offences under Sections 406, 409, 420, 467, 468, 471, 477-A, 201, 120-B of IPC and Section 5 of the Prize Chits Money Circulation Scheme (Banning Act), 1978 and Section 65 of the IT Act - High Court ruled in his favour by holding that the appellant is entitled to bail under Section 167 as a complete charge sheet was not filed within the prescribed period - HELD THAT:- It is clear from the judgment of this Court in Bashir’s case [1977 (10) TMI 125 - SUPREME COURT] that filing of charge sheet by itself cannot be a ground for cancellation of bail. Bail granted under Section 167 Cr.P.C. can be cancelled on other grounds available in law to the prosecution.
Appeal disposed off.
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2021 (1) TMI 856
Benefit of grant of regularization and other service benefits - non-fulfilment of conditions as per the Recruitment Rules of MTS that is with regard to the age - HELD THAT:- In order to attract the contempt of the courts, the order should be very specific and clear in terms as we have noted above, the CAT has not directed the regularization of the respondent herein, but only directed for consideration of the representation of respondent herein. The said direction has been strictly complied and the application of the respondent has been considered and a considered order has been passed as noted supra. Therefore, if at all the respondent is aggrieved by the order passed by the petitioner No.1 herein dated 31.08.2018 as per Annexure-G, he ought to have challenged the said order and in that context the Tribunal may get an opportunity to examine whether that particular order is in accordance with law or not, then only it would have passed an appropriate order in that regard, instead of that contempt proceedings has been initiated which is not in our opinion justified. Hence, the order impugned deserves to be quashed.
Petition allowed.
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2021 (1) TMI 855
Dishonor of cheque - pre-trial before the actual trial begins - rebuttal of presumption - Sections 118, 138 and 139 of the Negotiable Instrument Act - HELD THAT:- It is manifestly clear that a dishonour would constitute an offence only if the cheque is returned by the bank ''unpaid' either because the amount of money standing to the credit of the drawer's account is insufficient to honour the cheque or that the amount exceeds the amount arranged to be paid from that account by an agreement with that bank. Now, for an offence under Section 138 NI Act, it is essential that the cheque must have been issued in discharge of legal debt or liability by accused on an account maintained by him with a bank and on presentation of such cheque for encashment within its period of validity, the cheque must have been returned unpaid. The payee of the cheque must have issued legal notice of demand within 30 days from the receipt of the information by him from the bank regarding such dishonor and where the drawer of the cheque fails to make the payment within 15 days of the receipt of the aforesaid legal demand notice, cause of action under Section 138 NI Act arises.
This Court does not deem it proper, and therefore cannot be persuaded to have a pre-trial before the actual trial begins. A threadbare discussion of various facts and circumstances, as they emerge from the allegations made against the accused-applicant, is being purposely avoided by the Court for the reason, lest the same might cause any prejudice to either side during trial. But it shall suffice to observe that the perusal of the complaint case filed by opposite party no.2 and the statements of the complainant and her witnesses under Sections 200 and 202 Cr.P.C. makes out a prima facie case against the accused at this stage and there appear to be sufficient ground for proceeding against the accused.
The prayer for quashing the impugned summoning order dated 13th March, 2019 as well as the entire proceedings of the Complaint Case No. 14 of 2019 under Section 138 of Negotiable Instrument Act, Police Station-Aurai, District-Bhadohi, pending in the Court of Additional Chief Judicial Magistrate, Bhadohi, Gyanpur, are refused.
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2021 (1) TMI 854
Scope of the bar of cognizance imposed under Section 439(2) of the Act of 2013 - Section 439(2) of Act of 2013 and Section 19(1) of Prevention of Corruption Act are in pari materia with each other or not - proceedings against the directors of a company and/or the company under Section 439(2) of the Act of 2013.
Whether the application in IA No.2/2020 under Order VI Rule 16 of CPC is required to be allowed? - HELD THAT:- The averments made and the documents produced therein cannot be said to prejudice or delay the matter inasmuch as the above petition having been filed on 4.08.2020, the respondent having entered appearance and filed its objections on 3.10.2020, the above matter was taken up on 20.11.2020, 2.12.2020, 14.12.2020, 17.12.2020, 18.12.2020, when it did not reach on account of paucity of time, it was however taken up for hearing on 22.12.2020 at the request of both the counsels. Thus, there cannot be said to be any delay on account of the rejoinder the matter was taken up for final disposal at the request of both the counsels on 22.12.2020, the rejoinder having been filed on 11.12.2020 - the filing of the rejoinder and production of documents would not cause any abuse of process of the court.
Whether Section 439(2) of Act of 2013 and Section 19(1) of Prevention of Corruption Act are in pari materia with each other? - HELD THAT:- The requirement of prior sanction under the Prevention of Corruption Act is to protect an officer against unnecessary prosecution during the time that he was discharging his function as an officer of the State, in such situation it is mandated that prior sanction from the concerned authority has to be obtained which authority would apply its mind to the facts and come to a conclusion as to whether the proceedings are to be initiated or not - the same cannot be equated to authorised person under Section 439. There is a specific prohibition to the Court to take cognizance except upon a complaint in writing by the registrar, a shareholder of the company or a person authorised by the Central Government in that behalf.
Admittedly, the respondent is neither the Registrar nor a shareholder nor has he obtained any authorisation from the Central Government. Therefore, the respondent would not in my considered opinion have any locus to initiate penal proceedings under Section 439 of the Act of 2013 or even if he initiates any action, the court dealing with such a matter cannot take cognizance of such a complaint - the Act of 2013 being a Special enactment containing a specific embargo, the embargo is required to be given complete effect to by this Court. This Court cannot travel beyond the intention of the legislature and water down the requirements of Section 439 - the finding of the Special Economic Court in its order dated 3.7.2017 was proper and correct. Section 19 of the Prevention of Corruption Act and Section 439 of Act of 2013 are not pari materia with each other.
Whether any person can file a proceedings against the directors of a company and/or the company under Section 439(2) of the Act of 2013? - HELD THAT:- Apart from the named persons a complaint can also be filed by a person authorised by Securities and Exchange Board of India in terms of the proviso (1) of Section 439(2) or the Official Liquidator in terms of Section 439(4), no other person can initiate any criminal proceeding against a company for the offence committed under the Act of 2013.
Whether the order of Revisional court dated 3.07.2020 requires any interference? - HELD THAT:- It is reiterated that it is not the qualification of the accused or the designation of the accused or status of the accused which is of relevance under Section 439(2) of the Act of 2013. Therefore, it is not relevant to consider whether the accused were directors or continue to be the directors as on the date of filing of the complaint. The Rivisional Court completely misdirected itself in this regard by adverting to the qualification of the accused rather than the qualification of the complainant.
Petition allowed.
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2021 (1) TMI 853
Dishonor of Cheque - error apparent on the face of record or not - offence punishable under Section 138 of the N.I. Act - HELD THAT:- This Court did not notice any error apparent on record with the well reasoned orders of the learned Magistrate and the learned First Appellate Court. Suffice to say that, though under Section 138 of the N.I. Act, the Court is entitled to order for double the cheque amount as fine and imprisonment for two years, having regard to the facts and circumstances of the case on hand, the learned Magistrate awarded fine of ₹ 39,000/-, out of which, ₹ 37,000/- was ordered to be paid as compensation to the complainant along with imprisonment of six months.
In the considered opinion of the Court, awarding simple imprisonment for a period of six months is not supported by valid reasons. Therefore, to that extent, this Court is of the opinion that the simple imprisonment of six months is excessive and the same needs to be set aside. However, having regard to the facts and circumstances of the case, especially in the pandemic COVID-19, granting three months with fine of ₹ 39,000/- less the amount deposited before the First Appellate Court would meet the ends of justice - Revision petition allowed in part.
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2021 (1) TMI 852
Dishonor of Cheque - seeking permission to compound the offence under Section 147 of the N.I Act and also reporting the settlement of the matter between the parties - HELD THAT:- The parties have settled the matter out of their own volition with free consent and keeping their mutual interest under consideration, as such, they may be permitted to compound the offence under Section 147 of the N.I. Act.
Section 147 of N.I. Act has made every offence punishable under the N.I. Act as compoundable. As such, there is no bar for the parties in the proceeding to compound the offence - However, at the same time the guidelines laid down by Hon'ble Apex Court in Damodar S. Prabhu v. Sayed Babalal H [2010 (5) TMI 380 - SUPREME COURT] regarding imposing graded cost on litigant also to be borne in mind - According to the said Judgment in Damodar S. Prabhu's Case, if the application for compounding is made before the Sessions Court or High Court in revision or appeal, such compounding is permitted to be allowed on the common condition that the accused pays 15% of the cheque amount by way of cost.
Application allowed.
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2021 (1) TMI 851
Dishonor of Cheque - defence taken by the accused is that while he was proceeding in a Car, he met with an accident, wherein he lost the cheques and one of those cheques have been mis-used by the complainant - Section 138 of the Negotiable Instruments Act.
Whether the finding recorded by the learned Magistrate that accused has committed an offence under Section 138 of the Negotiable Instruments Act confirmed by the first Appellate Court is erroneous? - HELD THAT:- It is the accused who has taken the contention that there is a material alteration in Ex.P-1. It was required for the accused to make an application seeking necessary orders to refer the Ex.P-1 for hand-writing expert. No such application is filed by the accused before the learned Magistrate or atleast before the first Appellate Court. All along, the accused tried to impress upon the Court that a cheque has been mis-used by the complainant. But, no complaint is filed by the accused as against the complainant even after he came to know about the filing of the criminal complaint against him in CC No.35/2010. Why accused did not take any action against the complainant about the mis-use of Ex.P1 is not explained by the accused. PW-2 who is the Manager of the Indian Overseas Bank, Tumkur has specifically deposed before the Court that the signatures found in Ex.P1 tallies with the specimen signatures maintained by the Bank - These aspects of the matter has been properly appreciated by the learned Magistrate as well as the first Appellate Court in the impugned judgment.
This court in the revisional jurisdiction with the limited scope of revision, cannot re-visit to the minute details in the case especially when there is a concurrent finding of facts of both the courts. Suffice to say when the materials available on record and the reasonings recorded by both the courts in the impugned judgments, do not suffer from legal infirmity so as to interfere with the same in this Revision Petition there cannot be any dispute as to the principles of law enunciated in the judgments cited by the learned counsel for the Revision Petitioner. But the facts in the said case and the facts of the case on hand are altogether different and in the absence of any positive evidence placed by the accused, the finding recorded and the alteration found in Ex.P1 signed by accused is not a material alteration and therefore, the said decision, principles cited in the said case is not of much avail to the revision to seek an order of interference by this court.
Whether the sentence passed by the learned Magistrate in CC No.35/2010 and confirmed in Criminal Appeal is erroneous? - HELD THAT:- The Trial Court while passing the impugned judgment has passed conviction order sentencing the accused to undergo simple imprisonment for a period of one year for the offence punishable under Section 138 of the Negotiable Instruments Act - It is pertinent to note that the operative portion of the order do not contain a sentence of fine ordered as against the accused but only compensation of ₹ 2 lakhs is ordered. In paragraph 28 of the judgment, there is a discussion as to why the learned Magistrate is imposing fine of ₹ 2,00,000/-. The learned Magistrate has rightly observed that accused has set up all possible evidence that are available to the accused to failed to substantiate the said defence and therefore, he has caused mandatory loss to the complainant and hence ordered for compensation of a sum of ₹ 2,00,000/-.
Whenever a compensation is awarded in a matter of this nature, it is needless to emphasize that the accused must be sentenced to pay a fine of ₹ 5,000/- and out of the fine amount, but the Trial Court has not fined the accused and passed an order of imprisonment for one year. Though there is a serious legal flaw in such an evidence, the first Appellate Court unfortunately did not bestow its attention to correct the same. The Trial Court did not assign any reasons for ordering the imprisonment of one year - It is well settled principle of law and requires no emphasis that assigning the reasons to reach a conclusion is a cine qua non. In fact, the reasons are heart beat of any judgment. This aspect of the matter is ignored by the first Appellate Court while confirming the order passed by the learned Magistrate.
Having regard to the fact that the accused failed to prove his defence that he lost the cheques and the same has been mis-used by the complainant, awarding a sum of ₹ 2,00,000/- as the compensation payable to the complainant as against the cheque amount of ₹ 1,25,000/- is reasonable. However, since the accused has not lodged any complaint or stated the same before the learned Magistrate, it is necessary for this court to pass an appropriate sentence - Revision allowed in part.
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2021 (1) TMI 804
Condonation of delay in filing statements - Booked flats not delivered in time - Section 38(2)(a) of the Consumer Protection Act, 2019 - HELD THAT:- In the present matter, it is an admitted fact that the period of limitation of 30 days to file the written statement had expired on 12.08.2020 and the extended period of 15 days expired on 27.08.2020. This period expired when the order dated 23.03.2020 passed by this Court in SMW(C) No.3 of 2020 was continuing - the limitation for filing the written statement in the present proceedings before the National Commission would be deemed to have been extended as it is clear from the order dated 23.03.2020 that the extended period of limitation was applicable to all petitions/ applications/suits/appeals and all other proceedings. As such, the delay of four days in filing the written statements in the pending proceedings before the National Commission deserves to be allowed, and is accordingly allowed.
It is directed that the written statement filed by the appellant shall be taken on record and the matter shall thereafter be proceeded with expeditiously and in accordance with law - appeal allowed.
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2021 (1) TMI 803
Dishonor of Cheque - insufficiency of funds - Respondent had not repaid the amount despite receipt of notice and neither did he reply to the said legal notice - acquittal of accused - Rebuttal of presumption - Whether the appellant has proved the guilt of accused thereby warranting a conviction of the respondent? - HELD THAT:- This Court will have to adjudicate on the theory putforth by the respondent as to a theory which is probable in defence and whether the same has been accepted and admitted by the appellant. When respondent tries to disprove the version of appellant he cannot merely make a statement of denial or posing certain suggestions that he does not owe any money to the appellant. The burden cast on the respondent is so heavy in view of the presumption under section 139 of the Act that while raising the probable defence it has to be more than a mere statement of denial, but it has to be a theory which can be believed by the Court and which is probable to the normal prudent man's understanding. Further, even if, such theory is not putforth by way of any document, the same should be accepted and admitted by appellant in cross-examination therefore, the presumption cast on the respondent under section 139 of the Act clearly says that "unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in Section 138 for the discharge, in whole or in part, of any debt or other liability". Unless the contrary is proved it is for the respondent to establish by way of cogent evidence either orally or through document to the contrary thereby rebutting the presumption cast under section 139 of the Act.
In the present case, it is the case of appellant that right from the date of issuance of legal notice on 15-9-2008, there is clarity when the loan amount was given, in what manner loan amount was given and the post dated cheque having been issued by the respondent on 1-8-2008 by mentioning the date as 16-8-2008 and in order to show abundant caution, the appellant has got indorsed behind the back of cheque, wherein the respondent has countersigned stating that he has received ₹ 3,00,000/- in cash and promises to honour this cheque. This fact of the matter of admitting the signature by respondent and cheque being drawn on the account of respondent and the countersignature at the backside of the cheque has not been disputed - In the present case on hand, it is an admitted fact with regard to issuance of cheque, signature on the cheque and the loan transaction thereby raising a presumption under section 139 of the Act that there exists a legal enforceable debt or liability. No doubt, the said presumption under section 139 of the Act is a rebuttable presumption. In the present case, there is no evidence by respondent which can show that the presumption has been rebutted and the theory put forward by the respondent with regard to Ex.D.1 is a believable theory. Ex.D.1 document is not an admitted document though the signature on the document is not denied. Merely admitting the signature on the document Ex.D.1, it does not prove the admission of contents and proof of the document. The other theory putforth by the respondent that Ex.P.1 was issued as security towards an earlier transaction is not a believable theory. In the absence of any material to show that there is existed any earlier transaction other than the present one stated by the appellant.
The Court below has materially erred in not properly appreciating and considering the presumption in favour of complainant-appellant herein that there exists a legally enforceable subsisting debt or liability as per Section 139 of the Act. Further, it is relevant to note here that the trial Court has committed a serious error in shifting the burden of proof to prove the debt or liability and the existence of a debt without appreciating the mandate of legislation as laid down in Section 139 of the Act. Section 139 of the Act is an example of reverse onus clause and therefore once issuance of cheque has been admitted and signature on the cheque has been admitted and in this case transaction of loan is also admitted. There is always a presumption in favour of appellant-complainant that there exists a legally enforceable debt or liability and thereby the burden is on the respondent-accused to rebut such presumption by leading cogent evidence either oral of documentary.
The appellant has proved the necessary ingredients of section 138 of the Act for conviction of respondent-accused for the offence punishable under section 138 of the Act - Respondent-accused herein is held guilty for the offence punishable under section 138 of the Act and he is convicted for the offence punishable under section 138 of the Act.
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2021 (1) TMI 706
Seeking grant of regular bail - recovery of contraband from a vehicle in transit - tablets of Clovidol-100-SR (Tramadol) - tablets of Clovidol-100-SR (Tramadol) - Wincerex - HELD THAT:- It is a case where pursuant to receipt of secret information, the police intercepted a car in which the petitioner and one Sanju Singh were found travelling and search of which led to recovery of 23,500 tablets of Clovidol-100-SR (Tramadol) and another 17,000 tablets of Clovidol-100-SR (Tramadol) apart from 200 vials 100 ml each of Wincerex. Section 42 of the Act pertaining to power of entry, search, seizure and arrest without warrant or authorisation.
The material question would be as to whether it is the procedure mandated under Section 42 of the Act which would be applicable or as to whether Section 43 of the Act alone will apply in such cases of recovery from a vehicle in public place.
Even if it is taken that provisions of Section were to apply, still it is a case where secret information had been duly conveyed to the superior officer i.e. the SHO, by the person receiving secret information namely ASI Walaiti Ram by way of sending a ‘ruqa’ stating factum of receipt of secret information, before the vehicle in question was intercepted and before recovery was effected, which would be sufficient compliance of section 42 of the Act - it is a case covered under Section 43 of the Act, the contention raised by learned counsel regarding non-compliance of Section 42 of the Act cannot be accepted.
Additionally, the recovered quantity of contraband which falls in the category of ‘commercial quantity’ would attract fetters imposed by Section 37 of the Act in the matter of grant of bail - there is nothing on record at this stage from which it could be inferred that the petitioner is not guilty of the offence in question.
Petition dismissed.
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2021 (1) TMI 661
Dishonor of Cheque - service of notice - Refusal of notice - endorsement of refusal by the postal peon was dated 10.04.07 while notice refused on 2.4.07 - case of petitioner is is that the Complaint itself was premature and not maintainable, inasmuch as, the statutory period for filing the Complaint under Section 138 of the Negotiable Instruments Act, 1881 had not expired - HELD THAT:- This court finds that there is nothing on record, neither documentary or oral evidence, as to what happened on 02.04.2007 when the postal peon went to deliver the notice and as to whether he met the accused and whether on the same day the accused refused to accept the notice. Admittedly, the postal peon has not been examined as a witness and the postal envelope has a specific endorsement of refusal with a date as 10.04.2007. Thus, finding of the learned lower appellate court that the date of refusal is to be taken as 02.04.2007 is based on no evidence and perverse and is accordingly set-aside. The finding of the learned trial court that the date of service of notice is the date of endorsement of refusal 10.04.2007 is well reasoned order on the point of date of refusal of notice. Accordingly, the finding of the learned lower appellate court that the date of refusal of the notice was 2.4.07 is perverse and is set-aside and it is held that the date of refusal of the notice by the accused is 10.04.2007 and not 02.04.2007.
If the date of refusal of notice is held to be 10.04.2007 and not 02.04.2007 then, Whether the Complaint filed on 17.04.2007 was premature due non-fulfillment of condition prescribed under Clause (c) of the proviso to Section 138 of the Negotiable Instruments Act, 1881 and therefore, the Complaint was not legally maintainable? - HELD THAT:- This Court is of the considered view that in the case of refusal to receive the demand notice also, the cause of action to file the Complaint would not arise unless the statutory period of 15 days from the date of refusal to receive the demand notice has expired - This Court finds that the learned trial court has held the Complaint maintainable on the basis that after refusal to receive the legal notice on 10.04.2007, the Complaint was filed on 17.04.2007, but summon was issued against the petitioner on 12.09.2007 which is much after the lapse of 15 days.
This Court is of the considered view that learned courts below have erred in holding that the Complaint was maintainable. Accordingly, this Court holds that the Complaint filed before expiry of the statutory period 15 days from the date of refusal to receive the legal/demand notice regarding the dishonour of the cheques was premature in view of the fact that the cause of action for filing the Complaint had not arisen on 17.04.2007 and therefore, the Complaint itself was not legally maintainable.
The petitioner is acquitted from the accusation thereunder and he is discharged from the liability of his bail bond - Revision petition allowed.
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2021 (1) TMI 626
Maintainability of petition - right to prefer an appeal - condonation of delay application under Section 5 of the Limitation Act - Dishonor of cheque - Section 148 of the Negotiable Instruments Act - HELD THAT:- As per section 148 of NI Act, A minimum of 20% of the compensation amount may be directed to be paid at the time of hearing of the appeal. Thus, fixing 50% of the compensation amount as a pre-condition for hearing of the application and the appeal was not an absolute imperative. It has to be remembered that the right of appeal of a convict is too precious to be thwarted by technical embargoes, that too discretionary ones. As such, so far as the direction to pay 50% of the compensation amount is concerned, the same ought to be suitably modified.
In the present case, during pendency of this revision, the Learned Appellate Court has proceeded with the matter and dismissed the appeal and the application of the present petitioner on the technical ground that 50% of the compensation amount could not be paid by him. It is true that in the absence of a stay, it is open to a Learned Appellate Court to proceed with the matter. However, every discretion has to be exercised judiciously. Furthermore, it is also true that the delay in disposing of a matter does not depend merely on a litigant who prefers an application. Sometimes, there are systematic delays. Sometimes, there are other factors which come into play like the onset of a pandemic, as in the present case. Without going into the petitioner's role in protracting a proceeding, he cannot be penalised for the purported delay.
It shall be just and proper if the petitioner is directed to deposit 25% of the compensation amount in terms of Section 148 of the Negotiable Instruments Act - The impugned order are set aside, the application for condonation of delay and the appeal are restored to their original file and number before the Learned Appellate Court, the matter is remanded back to the Learned Appellate Court so that the application and the appeal can be decided afresh - Petition allowed by way of remand.
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2021 (1) TMI 625
Dishonor of Cheque - acquittal of accused - offence under Section 138 of the Negotiable Instruments Act, 1881 - the trial Court came to the conclusion that the complainant failed to establish the ingredients of Section 138 of the N.I. Act and the trial Court held that in view of material alterations of cheque-Ex. P1, Section 87 of the N.I. Act renders the same instrument as void and Ex. P1-cheque is materially altered - HELD THAT:- It is not in dispute that complainant is seeking to recover an amount of ₹ 4,00,000/- from society namely Sasya Shyamala Souharda Credit Co-operative Limited. Complainant has not made society as party, accused in the complaint. Though trial Court has dismissed the case and discharged accused No. 2, no challenge is made to such dismissal of case against accused No. 2. Nevertheless, accused No. 1/respondent herein has deposed that she has not signed the cheque Ex. P.1 and she disputes the signature on Ex. P.1. She has also disputed issuance of cheque itself and also existence of any debt or liability.
When there is any alteration made by an indorsee, the same is void if the indorsee does not consent thereto with regard to making of such alteration. Therefore the word consent used in the said provision would be an express consent on such material alterations. In the present case on hand Ex. P.1 clearly exhibits the indorsement by accused No. 2 just below the alterations made on date of cheque. But admittedly there is no such indorsement by respondent/accused No. 2 who is also supposed to be the signatory of the cheque. It is also apparent on face of Ex. P.1 that there is no indorsement made below the alteration of the account number on Ex. P.1. When this fact was confronted to DW.1 complainant, she has no doubt admitted alterations on the cheque, but has denied suggestion that she altered the cheque.
On a perusal of evidence of PW.1, it is clearly seen that PW.1 does not know about alleged transaction mentioned in the complaint as she has clearly deposed by stating that she does not know as to when and on what date she has deposited a sum of ₹ 68,75,148/- with the society. As stated earlier, at one breath she says that amount is deposited by her and at another breath she says amount is deposited by her husband. It is also apparent that after cross-examination of PW.1 and evidence of DW.1, no other material has been placed before the Court other than Ex. P.1 by complainant to substantiate the fact that there is existence of subsisting legally recoverable debt - on the basis of the evidence adduced by the respondent - accused No. 1, it can be safely concluded that the respondent - accused No. 1 has rebutted the presumption under Section 139 of NI Act in favour of the Complainant.
No evidence is forthcoming to prove the contents of the said Ex. P9. In fact, the undated Ex. P9 produced by the Complainant and the material alteration on Ex. P1 which is indorsed by accused No. 2 and dismissal of the Complainant for non-prosecution as against accused No. 2, the same having reached finality and no action has been taken by the Complainant against accused No. 2, all goes to prove that there is collusion between the Complainant and accused No. 2. All these aspects have been considered by the trial Court in detail and an order of acquittal is rightfully passed by the trial Court. It is apparent on the face of Ex. P1 that there is material alteration and there is no endorsement by respondent - accused No. 1 to consent to the said material alteration on Ex. P1. Therefore, as per Section 87 of NI Act any negotiable instrument with material alteration renders the same void as there is no consent thereto for the said material alteration. In the present case, admittedly there is only one signature under the date on Ex. P1 and admittedly, the respondent - accused No. 1 has not indorsed the material alteration - without any doubt it can be safely concluded at Ex. P1 is hit by Section 87 of NI Act.
The trial Court has considered all these material aspects both oral or documentary and has arrived at a well reasoned order of acquittal, which does not call for interference - Appeal dismissed.
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2021 (1) TMI 624
Dishonor of Cheque - insufficiency of funds - Rebuttal of presumption - trial Court came to the conclusion that appellant utterly failed to prove the guilt of accused beyond all reasonable doubt to the satisfaction of the Court - offence punishable under section 138 of Negotiable Instruments Act and section 139 of NI Act - HELD THAT:- The primary requirement is the existence of any debt or liability and that the said debt has to be legally enforceable debt. Therefore, it is stated that when any cheque is drawn by a person on account maintained by him with Bank for payment of any amount of money to another person from out of that account for discharge in whole in part, of any debt or other liability is returned by the Bank unpaid, in such situations, the provision under this section will come into play. Therefore, the primary requirement would be the existence of legally recoverable debt or other liability. In the present case on hand, on complaint being registered and cognizance being taken, the presumption in law will act in favour of appellant as any cheque i.e., presented to the Bank would be presumed to be issued for the purpose of discharge of whole or in part of any debt or other liability. Therefore, this provision acts as reverse burden on respondent/accused to prove to the contrary to rebut the said presumption and to prove to contrary that there does not exist or that there never existed any legally recoverable debt or liability.
In the present case, in the cross-examination of P.W.1, he has categorically admitted that respondent was due only ₹ 41,545/- Therefore, this amount of ₹ 41,545/- is legally recoverable debt assuming and believing the statement of P.W.1 and to substantiate the same strangely. P.W.1 has himself produced and got marked Ex. P.7 which shows outstanding balance of respondent ₹ 41,545/- as on 25.10.2004 - Admittedly, even according to P.W.1-complainant, no cement was purchased by respondent after 08.09.2003, and according to the appellant, as on 08.09.2003 respondent was due ₹ 49,545/- as per their statement. But somehow strangely appellant comes with the theory that respondent has got issued a cheque on 11.10.2004, wherein he has not only agreed to pay ₹ 41,545/- but agreed to pay a debt of other person namely, Mallikarjun Sangannavar which is not admitted and on careful examination of P.W.1, it is seen that the said Mallikarjun Sangannavar was due ₹ 22,500/- to the appellant as on 31.07.2003.
In order to rebut the presumption, there has to be preponderance of probabilities and probable defence which is required to be raised by respondent, as there is already a presumption in favour of appellant that the cheque is issued towards discharge of legally recoverable debt either whole or in part. When once the rebuttal has been established and proved to the contrary by the respondent/accused, then the burden shifts on appellant to satisfy such rebuttal and prove that cheque has been issued towards legally enforceable debt or liability. In the present case, the trial Court has considered all these aspects and has passed a detailed order appreciating all the contentions raised by both the parties and has arrived at a conclusion that the cheque issued by respondent as per Ex. P.2 was towards discharge of legally recoverable debt for ₹ 64,045/- - it can be safely said that the cheque presented by appellant for ₹ 64,045/- cannot be said to be issued towards discharge of legally recoverable debt or liability and hence, same will not come within the purview of Section 138 of the N.I. Act.
The trial Court has passed a just and reasonable Judgment which does not call for interference by this Court and the same deserves to be upheld - Appeal dismissed.
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2021 (1) TMI 566
Dishonor of Cheque - acquittal of accused - appellant submitted that the Trial Court after appreciating the evidence on record had convicted respondent no.2accused for the alleged offence under the said Act, which has been reversed by the Appellate Court by misinterpreting the evidence and solely on the ground that the respondent no.2accused had deposited ₹ 2,00,000/ towards compensation, interest and cost - HELD THAT:- It would be beneficial to refer to the decision of the Supreme Court in the case of M/S. METERS AND INSTRUMENTS PRIVATE LIMITED & ANR. VERSUS KANCHAN MEHTA [2017 (10) TMI 218 - SUPREME COURT], whereby it has been observed by the Supreme Court that though the compounding of offence requires consent of both the parties, even in absence of such consent, the Court, in the interest of justice, on being satisfied that the complainant has been duly compensated, can in its discretion close the proceedings and discharge the accused.
In the present case, though the respondent no.2 was convicted by the Trial Court, the Appellate Court acquitted him considering the fact that the respondent no.2 had deposited ₹ 2,00,000/ towards compensation alongwith interest and cost, which was four times amount of cheque in question, and therefore, it could be said that the complainant was fully compensated, applying the principle laid down in case of Meters and Instruments Pvt. Ltd. Thus, the impugned order passed by the Appellate Court being discretionary in nature following the judgment of Supreme Court, this Court is not inclined to interfere with the said impugned order passed by the Appellate Court.
Appeal dismissed.
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2021 (1) TMI 439
Dishonor of cheque - acquittal of accused - only defence taken is that the accused has given the said cheque in favour of one Krishnappa while availing loan of ₹ 30,000/- for him and the same has been misused - HELD THAT:-It is the specific case of the complainant that notice was sent through UCP was served and through out the cross- examination of PW.1, nothing is elicited with regard to non-service of notice sent through UCP. Though he denies the address, claiming that till 2004, he was residing in the address mentioned in the complaint but in the cross-examination, he categorically admits that his wife residing in the said address and any notice sent to that address his wife would intimate the same. The first contention that no notice was served on him cannot be accepted for the answer elicited from the mouth of DW.1 and notice sent to him was returned with an endorsement the notice is not claimed.
With regard to the other defence is concerned, he has not handed over the cheque to the complainant. First of all nothing has been elicited in the cross-examination of PW.1 and also it is important to note that it is not his case that he has not filed the insolvency case marked at Ex.P.8 and also it is the contention that except the amount of ₹ 30,000/- borrowed from Krishnegowda, he has not received any amount. On perusal of Ex.P.8 in his own insolvency petition, he has listed out in the schedule including the name of this complainant. There is no any explanation with regard to the schedule where he mentioned the list of the creditors in his insolvency petition. It is specifically mentioned that the liability of ₹ 3,00,000/- in respect of this petitioner, it is also important to note that in the cross-examination, the accused was gone to the extent of denying his own signature and also same is not specific denial but he is having doubt about his signature. When all these materials are elicited from the mouth of this accused, the Trial Judge ought not to have come to the conclusion that he was not having the financial capacity to pay the amount.
If the accused was not having any acquaintance with the complainant what made him to make him as party in the insolvency case and also what made him to list out the due payable to the complainant. The very documentary proof placed before the Trial Court is ignored by the Trial Court. It is nothing but perverse judgment and not considered the material on record and also the admissions elicited from the mouth of DW.1. When the cheque has been issued, when the notice has been issued and though the accused admits the signature and not disputed the same, the Trial Judge ought to have invoked the Section 139 of Negotiable Instrument Act, 1881 ('the N.I. Act' for short) to draw the presumption. No discussion in the judgment even for drawing the presumption under Section 139 of the N.I. Act. The findings given by the Trial Court is erroneous and the same is against the material available on record and hence, the judgment of the trial Court requires interference of this Court.
Appeal allowed.
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2021 (1) TMI 438
Dishonor of Cheque - funds insufficient - post dated cheque - legally enforceable debt or not - acquittal of the accused - the accused in this case has contended that cheque in question was a post dated cheque issued for security purposes only - Whether the complainant has made out all the ingredients of Sec.138 of N.I.Act to prove the guilt of the accused person? - HELD THAT:- accused admitted his signature on cheque and its issuance to complainant. Consequently presumption under Section 118 and 139 of N.I. Act would be available to complainant - In this case, accused has not led his evidence.
The reasons assigned by the trial Court that complainant failed to prove the particulars of seizure of vehicle of accused, its sale to third party, the amount received from such sale coupled with the contention that cheque issued was a post dated cheque given for security purpose only cast a serious doubt about the complainant's case, would be contrary to the law under Negotiable Instruments Act regarding presumptions available to the complainant. The trial Court taking judicial notice of the fact that farmers borrowing loan from financials would put their signatures wherever indicated by the financiers is also perverse and not based on any evidence - liability of accused continues even after repossession and sale of vehicle to third parties, for any balance due after adjusting amount recovered from sale.
The complainant has established all the ingredients of offence under Section 138 and as the reason assigned by the trial Court for acquittal is held to be perverse, the appeal is allowed, the impugned order of acquittal is set aside. The accused is held guilty of offence punishable under Section 138 of the N.I. Act.
It is felt just and proper to impose a sentence of fine instead of imprisonment as the offence is in the nature of a civil wrong and the purpose of Section 138 is compensatory and not punitive. The accused is hereby sentenced to pay a fine of ₹ 13,74,000/- i.e. twice the amount of the cheque and in default of payment of fine, to undergo simple imprisonment for a period of fourteen months.
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2021 (1) TMI 380
Dishonor of Cheque - acquittal of the accused - rebuttal of presumption - burden to prove - it is contended that the Trial Judge has committed an error in coming to the conclusion that the burden is on the complainant to establish the case against the accused beyond doubt - HELD THAT:- It is settled law that once the cheque is admitted and there is no dispute with regard to the signature and so also notice was issued, the Court has to draw mandatory presumption under Section 139 of the N.I. Act. No doubt, in the case on hand, the accused has given reply denying the issuance of the cheque. But in the cross-examination of D.W.1, he categorically admits that he issued the cheques and the contents of Ex.P1 cheques in both the cases are also written by him. It has to be noted that P.W.1 in the cross-examination admits that he filled up the contents of Ex.P1. It is also important to note that D.W.1 categorically admits that no ordinary prudent man would sign the cheque and keep it with him. It is the case of the accused that he lost bunch of papers and cheques and there is no any explanation as to why he singed the bunch of cheques and kept with him. It is also important to note that he relied upon Ex.D1, which does not specify the cheques that he lost. It appears that after the issuance of the cheques, he gave the letter to the police, which is not the complaint. He had only requested the police to inform him, if they find the documents and the cheques, which he had lost and to hand over.
It is specifically mentioned that as on the date of borrowing the loan amount and issuing of the cheques, accused Nos.2 and 3 were in charge and responsible for the conduct of the business of the Company and they are responsible for all financial transactions of the Company. Hence, they are liable to be prosecuted under Section 138 of the N.I. Act. When a specific pleading has been made in para Nos.6 and 8 of the complaint that these accused persons were looking after the affairs of the company, the Trial Court ought not to have come to the conclusion that Section 141 of the N.I. Act has not been complied. The cheque is also issued on behalf of the company.
It is also important to note that the Trial Judge failed to take note of the 'B' report filed by the police against the complaint-Ex.D2 and the very theory of the cheques having been stolen has not been proved by leading any probable evidence before the Trial Court. The cheque - Ex.P1 also bears the common seal of the Company. When such being the case, the Trial Judge ought not to have come to the conclusion that accused has rebutted the case of the complainant relying upon the documents Ex.D1 and Ex.D2 - The very conclusion of the Trial Court that the accused has rebutted the case of the complainant is perverse as the Trial Judge has not considered the admission elicited from the mouth of D.W.1 with regard to the issuance of the cheques and the signature on the said cheques and so also that an ordinary prudent man would not sign and keep the cheque with him. He claims that not only the complaint on the cheques Ex.P1 and Ex.P2 has been filed, but also several other complaints have been filed. But there is no explanation to the effect that if he has not issued the said cheques, why he had signed and kept the bunch of cheques. Under the circumstances, it requires interference of this Court.
The impugned judgment of acquittal passed, on the file of XIII Additional Chief Metropolitan Magistrate, Bengaluru, is hereby set aside - Appeal allowed.
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