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Indian Laws - Case Laws
Showing 61 to 78 of 78 Records
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2021 (1) TMI 339
Dishonor of Cheque - insufficiency of funds - expert opinion for cross-examination of cheques, sought - It is contended that the expert opinion would have aided the petitioner in setting up rebuttal evidence - HELD THAT:- A perusal of the impugned order reveals that the petitioner had executed Exhibit P14 agreement acknowledging the liability and had entered the particulars of the cheques issued towards discharge of the liability in that document. The petitioner has not disputed his signature in the agreement. Further, the petitioner has not disputed his signature in the cheques or the amount entered in words. Therefore, as rightly found by the learned Magistrate, no purpose would be served by sending the cheques for expert opinion, other than delaying the trial unnecessarily.
Application dismissed.
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2021 (1) TMI 307
Grant of Bail - Dishonor of Cheque - Cheating - According to complainant, as and when she had been visiting for training at Gurgaon, petitioner, who was posted at Gurgaon at that time, had been booking Hotel for her, but at the time of issuance of bill, on advise of the petitioner, she had been taking bill in the name of one person only whereas petitioner had been keeping bills having details of two persons with him and later on petitioner had made a complaint in the Company for claiming amount on the basis of wrong bills and petitioner had started to threaten her - HELD THAT:- At this stage, petitioner is entitled for bail.
The petition is allowed and petitioner is ordered to be released on bail under Sections 376, 506 and 417 IPC, on his furnishing personal bond in the sum of ₹ 1,00,000/- with two sureties, one of which shall be local surety as undertaken by and on behalf of the petitioner, each in the like amount, to the satisfaction of the trial Court within three weeks from today, upon such further conditions as may be deemed fit and proper by the trial Court, including the conditions enumerated hereinafter, so as to ensure the presence of petitioner/accused at the time of trial and also subject to the conditions imposed.
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2021 (1) TMI 306
Dishonor of Cheque - acquittal of the accused - main contention of the complainant in this appeal is that the Trial Judge failed to consider the evidence of PWs.1 and 2 and also the principles laid down in the judgments referred in the grounds of appeal and also failed to take note of accused Nos.1 and 2 have not entered into the witness box to rebut the evidence of the complainant - HELD THAT:- This Court has to re-appreciate the material available on record. The present appeal is filed against the order of acquittal. This Court has to re-appreciate the material on record and arrive for a conclusion whether the trial Judge has considered the material available on record or not. This Court also given anxious consideration to the principles laid down in the Judgments referred supra both by Complainant's Counsel and accused Counsel. In keeping the principles and also considering the material available on record, this Court has to examine whether the Trial Court Judgment is perverse and not based on the material available on record.
It is important to note that based on the complaint, it is the case of the complainant that the accused had raised two invoices for supply of 6000 MTs for shipment of the business transaction and these two invoices are not in existence as admitted by P.W.1 in the cross-examination. However, the complainant relied upon the documents-Exs.P8 to P10. But in the cross-examination, it is categorically admitted that Exs.P8 to P10 bears the date prior to the subject matter of the cheque and also there is contrary evidence as against the contents of the complaint and in the complaint, it is in respect of 6000 MTs. and in the affidavit it is mentioned as 25000 MTs. It is also categorically admitted that Ex.P10 is only a Proforma Sale Invoice. It is also important to note that though P.W.2-R.Kannan was examined and claims that he is having the personal knowledge and giving evidence based on the records. He denies the initiation of other three complaints before the Court. Even he had gone to the extent of denying the three complaints filed against these accused persons at Delhi, so also initiation of arbitration proceedings.
It is also important to note that Ex.P10, which has been relied upon by the complainant is only a Proforma Sale Invoice and legal notice claim is in respect of two invoices for about 6000 MTs, but documents produced before this Court as Exs.P8 to P10 are contrary to the complaint averments as well as the legal notice. Hence, it is clear that Ex.P8 is in respect of 25000 MTs. of iron ore and claim is to the tune of ₹ 2,50,00,000/-. The complainant has changed his version while leading the evidence through the witness P.W.2-Kannan. The complainant being the Central Government Undertaking ought to have produced the documents with regard to the transaction, which had taken place between the complainant and the accused. It is also important to note that in the cross- examination, P.W.2-Kannan was cross-examined suggesting that in terms of MOU, it is agreed to transact only to the tune of ₹ 14.82 Crores. But the accused already made the payments more than ₹ 20 Crores and witness says he is not aware of the same. Hence, it is clear that the witness - P.W.1 is not aware of the transaction taken place between the complainant and the accused. It is also important to note that Exs.C1 to C3 are got marked as Court documents. The complainant does not deny the same.
The complainant is not sure about whether it is for the supply of 6000 MTs. iron ore or towards supply of 25000 MTs. iron ore and also the invoices which have been pleaded in paragraph No.2 of the complaint have not been placed before the Court. It is also important to note that, P.W.2, who has been examined subsequently, is not aware of the transaction between the complainant and the accused in toto and he is not aware of any proceedings initiated by the accused in Delhi as well as in Bengaluru. It is also pertinent to note that the complainant being a Central Government Undertaking has not maintained any account with regard to the transaction and produced the same before the Court. There must be a proof with regard to ascertaining the liability of the accused. In the absence of said statement of account before the Court, the Court cannot come to the conclusion that the cheques are issued towards the debt or liability. It is also important to note that P.W.2 categorically admits that Ex.P10 was only a Proforma Sale Invoice was raised. When such being the case, in the absence of relevant documents before the Court, the Court cannot come to a conclusion that the said cheques are issued in discharge of liability. No doubt, it is settled principle that once the cheque is admitted and not denied the signature; the Court has to draw the presumption.
In the case on hand, the accused had rebutted the case of the complainant and even after rebutting the evidence of the complainant, even though, the burden shifts on him but further fails to prove the case of the complainant. The Complainant did not choose to place the material before the Court either the invoices or the statement of accounts. When such being the case, the accused are rebutted the case of the complainant.
There are no error committed by the Trial Court in appreciating both oral and documentary evidence and rightly come to the conclusion that the complainant has failed to prove its case. This Court can only reverse the finding of the Trial Court if the findings of the Trial Court is perverse and the material evidence is not considered then to exercise its appellate jurisdiction to reverse the findings and there is no error committed by the Trial Court in appreciating the case of the complainant. Hence, it is not a fit case to reverse the findings of the Trial Court.
Appeal dismissed.
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2021 (1) TMI 305
Dishonor of Cheque - quantum of sentence of imprisonment - section 138 of NI Act - HELD THAT:- The revision petitioner / accused had made a voyage of two rounds before the Trial Court and the Sessions Judge's Court in the matter and prior to the remanding of the matter by the Sessions Judge's Court and subsequent to the remand of the matter also he was convicted and the same was confirmed. Therefore, the accused apart from not pleading guilty under Section 252 Cr.P.C. has made futile exercise from the year 2000 till date in proving his alleged innocence towards the alleged offence but he has failed in his repetitive attempts.
There are no reasons for setting aside the sentence of imprisonment in toto. Considering the fact that at the earliest point of time when he was convicted for the first time in the same case by the Trial Court on 07.09.2006, he was sentenced to undergo imprisonment only for two months and also imposed with fine and in the impugned Judgment passed by the Trial Court, it has not given any reason for sentencing him to undergo simple imprisonment for one year and also considering the fact that even the Sessions Judge's Court also has not given its reasoning for confirming the said sentence of imprisonment, the said sentence of imprisonment of one year as simple imprisonment apart from payment of the fine amount is not proportionate to the gravity of the proven guilt against the accused. On the other hand, it is slightly exorbitant to the proven guilt. Therefore, considering the facts and circumstances of the case and also of the fact that the accused made two trips before the Trial Court as well as the Session Judge's Court and thus has made a futile exercise in ensuring the setting aside of his conviction which consequently has made the complainant to be deprived of the cheque amount for more than two decades, confining the sentence only to the fine amount would not meet the ends of justice and imposing the sentence of imprisonment is also warranted in the circumstances of the case - However, one year simple imprisonment imposed since being on the higher side, the circumstances of the case warrant confining it to two months simple imprisonment which was originally and at the earliest point of time imposed against him by the Trial Court in its Judgment dated 07.09.2006 and that would be reasonable.
Though the Judgment of conviction for the offence punishable under Section 138 of the N.I. Act holding the accused / petitioner guilty of the alleged offence is confirmed, however, the Order on sentence is modified - petition allowed in part.
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2021 (1) TMI 304
Recovery of additional tax - whether the petitioner is liable to pay the tax as demanded from him and as confirmed by the Appellate Authority and whether the denial of benefit of Rule 22-A of Uttar Pradesh Motor Vehicles Taxation Rules, 1998 was a valid exercise of power? - HELD THAT:- A plain reading of the Taxation Act and the Rules makes it clear that incidence of tax is use of the vehicle and the time for payment of the tax is specified under Section 9 of Motor Vehicles Taxation Act, 1997. Thus, for imposition of tax, it is essential to establish that the vehicle is "in use". Interestingly, under section 12 of the Taxation Act, specific provisions have been provided for the contingency where the operator and the owner of the motor vehicle does not intend to use his vehicle for a period of one month or more, in fact, a perusal of Section 12(2) provides for the procedure also wherein the owner or the operator is only to surrender the certificate of registration and token, if any, to the Taxation Officer and in fact, a bar is imposed from imposition of the tax or additional tax in respect of such vehicle for the period during which the vehicle remains withdrawn from use and the aforesaid documents remains surrendered with the Taxation Officer. Proviso to the said Section 12(2) confers a power on the Taxation Officer to impose the tax or the additional tax, in the event, the vehicle is found to be plying during the period when the documents as mentioned in Section 20(2) of the Act remains surrendered. Thus, a plain reading of Section 12 shows that a complete Code is prescribed .A conjoint reading of Section 12 (2) and Rule 22(4), relied upon by the counsel for the respondents make it clear that an additional action is to be performed by the owner if non-use of the vehicle is for more than three calendar months.
It is clear that the date of manufacture of the vehicle is 1992 and the validity of the registration is 20 years and the fact that the fitness certificate of the vehicle has never been extended after 13.4.2009 and no fitness certificate has been granted thereafter, in terms of the mandate of the Motor Vehicle Act, the vehicle itself could not have been used as the same would have been in violation of the express mandate of Sections 55 and 56 of the Motor Vehicles Act.
The stand of State is that although specific information was given by the petitioner for cancellation of registration, however, the State has taken a plea that as the petitioner failed to move an application after the expiry of three months for extension of surrender of registration in terms of Rule 22(4), the petitioner was liable to pay the demand on account of tax and additional tax from the period 01.12.2010 to 31.10.2012 and for a subsequent period from 01.11.2012 to 30.4.2013 - A perusal of the said order dated 11.2.2014 makes it clear that the applicability or the benefit of Rule 22-A to the facts of the case were never considered by the Taxation Officer.
It is clear that once the operator/owner of the vehicle informs regarding surrender of registration certificate, a burden is cast upon the Taxation Officer to charge the tax and the additional tax only on being convinced that the vehicle is found plying as no tax can be levied in terms of Section 12(2) of the Motor Vehicles Taxation Act - Even otherwise admittedly the registration comes to an end after the expiry of 20 years, as admittedly, the vehicle was manufactured in the year 1992, the period of 20 years would expire in the year 2012 and thus no tax could have been imposed after the expiry of the said 20 years. As such the order of the Taxation Officer imposing tax for the period 01.11.2012 to 30.4.2013 amounting to ₹ 47,196/- is liable to be set aside to the extent of charging tax for the period 1.1.2013 to 30.4.2013. As regards the demand of tax amounting to ₹ 1,59,620/- for the period 01.12.2010 to 31.10.2012, the mater is remanded to the Taxation Officer to consider the grant of benefit under Rule 22-A of the Taxation Rules after making such enquiry as he may deem fit in terms of mandate of Rule 22-A.
The writ petition is partly allowed.
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2021 (1) TMI 262
Dishonor of Cheque - offence punishable under Section 138 of the NI Act - rebuttal of presumption - Sections 118 and 139 of the NI Act - Sections 118 and 139 of the NI Act - HELD THAT:- Section 118 of the NI 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 NI 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 NI 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 NI 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 NI Act, it becomes evident that in a trial under Section 138 of the NI 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.
Section 141 of the NI Act provides constructive liability on the part of the Directors of the company or other persons responsible for the conduct of the business of the company. Though the heading of Section 141 of the NI Act reads "Offences by companies", as per the Explanation to that Section "company" means "any body corporate and includes a firm or other association of individuals"; and "director" in relation to a firm, means a "partner" in the firm. Their liability is joint and several. Consequently, therefore, when an offence is alleged to have been committed by the partnership firm, every person who, at the time the offence was committed, was in charge of and was responsible to the firm for the conduct of its business as well as the firm shall be deemed to be guilty of the offence and shall be liable to be proceeded under Section 138 of the NI Act.
The conclusions drawn by the trial court and the appellate court to convict the accused 1 and 2 are perfectly legal. The cheque in question was drawn for consideration and the holder of the cheque received the same in discharge of an existing debt. Thereafter, the onus shifts on the accused to establish a probable defence so as to rebut such presumption, which onus has not been discharged by the accused. Once the cheque is proved to be issued, it carries statutory presumption of consideration under Sections 118 and 139 of the NI Act. Then, the onus is on the accused to disprove the presumption at which they have not succeeded.
It is well settled law that when concurrent findings of facts rendered by the trial court and appellate court are sought to be 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 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. The accused failed to prove in the trial by leading cogent evidence that there was no debt or liability - Thus, 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 accused was examined as DW1 in this case. He stated that the cheque was entrusted to M/s Leap Forwarders as a blank signed one. No evidence was let in to prove the alleged entrustment with M/s Leap Forwarders as contended. The burden is not discharged rightly. Hence, the conviction of the accused for the offence under Section 138 of the NI Act is only to be upheld.
Question of sentence - HELD THAT:- The trial court convicted and sentenced the 1st accused to pay a fine of ₹ 5,000/- each and 2 nd accused to undergo simple imprisonment for three months each in CC Nos. 592 and 593 of 1999 on the file of the Judicial First Class Magistrae Court-I, Ernakulam. Further, it was ordered to pay a sum of ₹ 1,19,000/- in CC of 1999 to the complainant under Section 357(3) of Cr.P.C. and default of payment of fine to undergo simple imprisonment for three months each more. The amount involved in CC No. 592 of 1999 is ₹ 79,160/- as per cheque bearing No. 509028 dated 26.05.1999.
The concurrent conviction under Section 138 of the NI Act is sustained. Section 138 of the NI Act provides sentence of imprisonment or with fine or with both. Sentence of imprisonment is not compulsory. The object is to pay the amount covered under the cheque. Hence, the mandatory term of imprisonment awarded by the trial court, which was confirmed in appeal, is liable to be set aside. The conviction and sentence as against the 1st accused stand confirmed -
While confirming the conviction of the 2nd accused, in modification of the sentence, the 2nd accused is sentenced to pay a fine of ₹ 79,160/- and in default of payment of fine to undergo simple imprisonment for a period of three months. If the amount is paid as compensation, the same shall be given to the complainant as compensation under Section 357(3) of Cr.P.C.
In view of the situation prevailing in the country due to the outbreak of Covid-19 pandemic, this Court is inclined to grant six months time from today to the revision petitioners/accused 1 and 2 to deposit the compensation and the fine amount before the trial court, failing which the learned Magistrate shall take necessary steps to execute the sentence against the revision petitioners/accused 1 and 2 in accordance with law - Petition allowed.
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2021 (1) TMI 261
Time Limit for passing of Arbitral Award - Section 29A of the Arbitration and Conciliation Act, 1996 - lockdown in view of COVID-19 - HELD THAT:- In Suo Moto Writ Petition (C) No. 3/2020, by our order [2020 (5) TMI 418 - SC ORDER], we ordered that all periods of limitation prescribed under the Arbiration and Conciliation Act, 1996 shall be extended w.e.f. 15-3-2020 till further orders. - It is directed that the aforesaid orders shall also apply for extension of the time limit prescribed under section 23(4) of the said Act.
Time Limit for for completing the process of compulsory pre-litigation, mediation and settlement - Pre-Institution Mediation and Settlement under section 12A of the Commercial Courts Act, 2015 - HELD THAT:- Under Section 12A of the Commercial Courts Act, 2015, time is prescribed for completing the process of compulsory pre-litigation, mediation and settlement. The said time is also liable to be extended - it is directed that the said time shall stand extended from the time when the lockdown is lifted plus 45 days thereafter. That is to say that if the above period, i.e. the period of lockdown plus 45 days has expired, no further period shall be liable to be excluded.
Time limit for Service of all notices, summons and exchange of pleadings - HELD THAT:- Service of notices, summons and exchange of pleadings/documents, is a requirement of virtually every legal proceeding. Service of notices, summons and pleadings etc. have not been possible during the period of lockdown because this involves visits to post offices, courier companies or physical delivery of notices, summons and pleadings - It is considered appropriate to direct that such services of all the above may be effected by e-mail, FAX, commonly used instant messaging services, such as WhatsApp, Telegram, Signal etc. However, if a party intends to effect service by means of said instant messaging services, it is directed that in addition thereto, the party must also effect service of the same document/documents by e-mail, simultaneously on the same date.
Period of validity of a cheque - Extension of validity of Negotiable Instruments Act, 1881 due to lockdown in view of COVID-19 - HELD THAT:- The said period has not been prescribed by any Statute but it is a period prescribed by the Reserve Bank of India under section 35-A of the Banking Regulation Act,1949. It is not considered appropriate to interfere with the period prescribed by the Reserve Bank of India, particularly, since the entire banking system functions on the basis of the period so prescribed - The Reserve Bank of India may in its discretion, alter such period as it thinks fit.
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2021 (1) TMI 177
Jurisdiction of sole Arbitrator to adjudicate the preliminary issue of jurisdiction - whether the arbitral process could be interfered under Article 226/227 of the Constitution, and under what circumstance? - Section 34 of the Arbitration Act - HELD THAT:- The Arbitration Act is a code in itself. This phrase is not merely perfunctory, but has definite legal consequences. One such consequence is spelled out under Section 5 of the Arbitration Act, which reads as under “Notwithstanding anything contained in any other law for the time being in force, in matters governed by this Part, no judicial authority shall intervene except where so provided in this Part.” The non-obstante clause is provided to uphold the intention of the legislature as provided in the Preamble to adopt UNCITRAL Model Law and Rules, to reduce excessive judicial interference which is not contemplated under the Arbitration Act - The Arbitration Act itself gives various procedures and forums to challenge the appointment of an arbitrator. The framework clearly portrays an intention to address most of the issues within the ambit of the Act itself, without there being scope for any extra statutory mechanism to provide just and fair solutions.
In any case, the hierarchy in legal framework, mandates that a legislative enactment cannot curtail a Constitutional right.
It is therefore, prudent for a Judge to not exercise discretion to allow judicial interference beyond the procedure established under the enactment. This power needs to be exercised in exceptional rarity, wherein one party is left remediless under the statute or a clear ‘bad faith’ shown by one of the parties. This high standard set by this Court is in terms of the legislative intention to make the arbitration fair and efficient - In the instant case, Respondent No. 1 has not been able to show exceptional circumstance or ‘bad faith’ on the part of the Appellant, to invoke the remedy under Article 227 of the Constitution. No doubt the ambit of Article 227 is broad and pervasive, however, the High Court should not have used its inherent power to interject the arbitral process at this stage. It is brought to our notice that subsequent to the impugned order of the sole arbitrator, a final award was rendered by him on merits, which is challenged by the Respondent No. 1 in a separate Section 34 application, which is pending.
Respondent No. 1 did not take legal recourse against the appointment of the sole arbitrator, and rather submitted themselves before the tribunal to adjudicate on the jurisdiction issue as well as on the merits. In this situation, the Respondent No. 1 has to endure the natural consequences of submitting themselves to the jurisdiction of the sole arbitrator, which can be challenged, through an application under Section 34. It may be noted that in the present case, the award has already been passed during the pendency of this appeal, and the Respondent No. 1 has already preferred a challenge under Section 34 to the same. Respondent No. 1 has not been able to show any exceptional circumstance, which mandates the exercise of jurisdiction under Articles 226 and 227 of the Constitution.
The Gujarat Act was enacted in 1992 with the object to provide for the constitution of a tribunal to arbitrate disputes particularly arising from works contract to which the State Government or a public undertaking is a party. A works contract is defined under Section 2(k) of the Gujarat Act. The definition includes within itself a contract for supply of goods relating to the execution of any of the works specified under the section. However, a plain reading of the contract between the parties indicates that it was for both manufacturing as well as supply of bricks. Importantly, a contract for manufacture simpliciter is not a works contract under the definition provided under Section 2(k) - It is a settled law that the interpretation of contracts in such cases shall generally not be done in the writ jurisdiction. Further, the mere fact that the Gujarat Act might apply may not be sufficient for the writ courts to entertain the plea of Respondent No. 1 to challenge the ruling of the arbitrator under Section 16 of the Arbitration Act.
The High Court erred in utilizing its discretionary power available under Articles 226 and 227 of the Constitution herein - appeal is allowed - decided in favor of appellant.
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2021 (1) TMI 135
Grant of Anticipatory Bail - Dishonor of Cheque - false and concocted agreement for sale - fraudulent sale of land - Sale deed not executed nor earnest money returned - HELD THAT:- Considering the fact that the petitioner - Som Parkash was granted the interim bail but has failed to join the investigation, there are no ground to extend the concession of interim bail to the petitioner - Som Parkash.
Though the undertaking given by the petitioner - Som Parkash is not binding on his son Dharmender, however, considering the allegations in the FIR, which are directly against Dharmender who on behalf of his father has accepted the money from the complainant and thereafter, handed over the possession of the property but later on in a calculated move to cheat the complainant not only the possession was forcibly taken back but the cheques were given knowingly that the same will be dishonoured, there are no ground to grant the concession of anticipatory bail to the petitioner - Dharmender, as well.
Petition dismissed.
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2021 (1) TMI 134
Seeking forfeiture/surrender of illegally acquired property - petitioner claims that he is a bonafide purchaser, for valuable and adequate consideration, of the said property - further case of petitioner is that the impugned order were passed without any notice to the petitioner and without affording him any opportunity to be heard - principles of natural justice - Section 68-U of the Narcotic Drugs and Psychotropic Substances Act, 1985 - HELD THAT:- There is no dispute that the petitioner is a bonafide purchaser and had purchased the said property for a valuable consideration. It is also averred in the present petition, which is not traversed by the respondent, that the petitioner had availed of a loan from HDFC for purchasing the said property and a No Objection Certificate stating that the said property was not subject to any encumbrance or liability had been issued by Sinchan Cooperative Housing Society for the purpose of availing the said loan - The petitioner has been holding the said property since 1996 and it is not disputed that no notice of any proceedings in respect of the said property had been issued to the petitioner.
There is no real controversy in respect of the essential facts that are necessary to address the challenge to the impugned orders. Admittedly, the said property had been purchased by Sh. Anand Kumar Bagla prior to issuance of notice under Section 68-H(1) of the NDPS Act. After securing a legal opinion, the Director, NCB had, by a letter dated 06.01.1994, duly informed that the said property had been incorrectly frozen and that the order had been passed inadvertently. The Competent Authority had also accepted that the said property had been transferred to Smt. Krishna Devi Bagla and Sh. Anand Kumar Bagla in good faith and prior to passing the freezing orders under the NDPS Act - In the given circumstances, the Competent Authority was required to consider the same before passing any fresh order of forfeiture. Although the said order of forfeiture was required to be passed by 31.07.1993, the impugned orders were passed almost twenty-seven years thereafter and that too without considering that it had been duly accepted by the Competent Authority that the said property is to excluded from the proceedings.
The order passed by the Competent Authority under Section 68I of the NDPS Act to the extent that it forfeits the said property under Section 68-I of the NDPS Act, is without jurisdiction.
Mr. Kishore had also contended that an appeal under Section 68-O of the NDPS Act would not be available to the petitioner since the petitioner was not a person to whom the provisions of Chapter V-A of the NDPS Act are applicable -
The said contention is, plainly, unmerited. A plain reading of the opening sentence of Section 68-O of the NDPS Act clearly indicates that any person aggrieved by an order of Competent Authority, inter alia, passed under Section 68-I can file an appeal. However, considering that there is no controversy as to the essential facts and it is conceded that it was accepted that the said property was liable to be excluded from the schedule of the properties of the affected person/his relatives or associates, this Court does not consider it apposite to relegate the petitioner to exhausting his statutory remedy. More so as the order passed by the Competent Authority to the extent that it seeks to forfeit the said property and requires its surrender, is without jurisdiction.
The impugned orders to the extent that the purport to declare the said property as forfeited to the Central Government and demands it‘s surrender, are set aside - petition allowed.
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2021 (1) TMI 133
Dishonor of Cheque - initiation of proceedings under section 138 of Negotiable Instruments Act - prayer for compounding of offence - parties have amicably settled the matter inter se them and entire compensation amount paid - HELD THAT:- Since both the parties have resolved to settle their dispute amicably interse them and entire compensation amount awarded by the learned trial Court stands paid to the petitioner, this Court sees no impediment in accepting the prayer for compounding the offence while exercising power under section 147 of the Negotiable Instruments Act - Hon'ble Apex Court in DAMODAR S. PRABHU VERSUS SAYED BABALAL H. [2010 (5) TMI 380 - SUPREME COURT], has categorically held that Court, while exercising power under Section 147 of the Act, can proceed to compound the offence even after recording of conviction by the courts below.
The instant matter is ordered to be compounded and judgments passed by learned Courts below are quashed and set-aside. The petitioner-accused is acquitted of the charge framed against her under Section 138 of the Act. The bail bonds of the accused are ordered to be discharged.
Petition disposed off.
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2021 (1) TMI 65
Dishonor of Cheque - insufficiency of funds - legally enforceable debt or not - validity of cheque issued by a proprietorship firm or by respondent - neither any statutory notice was issued to the proprietorship firm nor the said firm has been arraigned as an accused - rejection of application for amendment of complaint on the ground that not only the application has been filed belatedly, but it would also change the nature of the complaint - HELD THAT:- The application for amendment was filed prior to cross-examination of complainant, although charge was already framed. Further, in the statutory notice Ex. P3, it was the stand of the appellant, that an amount of ₹ 3 lac was due as the respondent had got the advertisement of his shop. Thus, this Court is of the considered opinion, that the Trial Court, committed material illegality by rejecting the application filed by the appellant for amendment of the complaint and accordingly, the order dated 8-10-2012 passed by the Trial Court is hereby set aside, and the amendment in the complaint is allowed.
Whether the cheque was issued by a proprietorship firm or by respondent, and whether the complaint filed against the respondent is maintainable or not? - HELD THAT:- It is the case of the appellant, that the advertisement of the shop was got done through the appellant, therefore, a cheque of ₹ 3 lac was given. It is clear from disputed cheque Ex. P.1, that the cheque was issued by the respondent in the capacity of proprietor of Prapti Collection - Undisputedly, the cheque was issued by the proprietorship firm, however, neither the statutory notice was sent to the proprietorship firm nor has been arraigned as an accused.
Whether the complaint filed by the appellant against the respondent alone was maintainable, because undisputedly, neither any statutory notice was issued to the proprietorship firm nor the said firm has been arraigned as an accused? - HELD THAT:- A proprietorship firm is neither a Company, nor a partnership firm. It is merely a business name. Although even a partnership firm is not a juristic person, but in view of Order 30 Rule 1 CPC, the partners can sue or be sued in the name of firm. A suit by a proprietorship firm is only by its proprietor. Therefore, Section 141 of Negotiable Instruments Act, would not apply. Thus, the respondent alone can be prosecuted being the proprietor of the proprietorship firm. Accordingly, it is held, that the Trial Court, committed mistake by holding that since, the proprietorship firm was not arraigned as an accused, therefore, the complaint is not maintainable.
Whether the complaint filed by the proprietorship firm is maintainable or not? - HELD THAT:- The disputed cheque, Ex. P.1 was issued in favor of the appellant. Thus, the complainant is the payee - Thus, it is held that the complaint filed by the appellant against the respondent is maintainable.
Legally enforceable debt or not - HELD THAT:- It is the case of the appellant, that the respondent had given a contract for advertisment of his shop and accordingly, hoardings and pamphlets on the body as well as seats of a bus were affixed. The photographs Ex P8 and P.9 have been filed by the appellant. The respondent has also admitted that the photographs contain his number and photo of the shop. He also admitted that he never made any complaint with regard to the advertisement. The bills Ex. P.10 and P.11 have also been produced by the appellant. Further, the respondent has taken a false stand that the cheques were stolen from his drawer. Under these circumstances, it is held that the respondent had issued the cheque in discharge of legally enforceable debt.
Insufficiency of funds - HELD THAT:- It is not the case of the respondent that he had sufficient funds in his account. So far as the drawer's signature incomplete is concerned, it is not the case of the respondent that the disputed cheque Ex.P1 does not bear his signature. So far as the stand of the respondent that since the return memo Ex.P2 issued by ICICI Bank does not bear the seal of the Bank and, therefore, the same cannot be relied upon is concerned, the said submission of the counsel for the respondent cannot be accepted. The return memo Ex. P2 bears signature of an officer of ICICI Bank. The respondent has examined Ajay Jadaon (DW2), an employee of ICICI Bank, who did not try to prove that the return memo Ex.P2 was never issued by the Bank.
Thus, this Court is of the considered opinion, that the appellant has successfully established that the disputed cheque, Ex. P.1 was issued by the respondent in discharge of his legally enforceable debt, which stood bounced due to in-sufficient funds. Accordingly, the judgment dated 13/10/2017 passed by Additional Chief Judicial Magistrate, Gwalior in Criminal Case No.14094/2010 is hereby set aside and the respondent is hereby convicted under Section 138 of Negotiable Instruments Act.
Question of sentence - HELD THAT:- As per Section 138 of Negotiable Instruments Act, the imprisonment for a term which may extend to 2 years and fine which may extend twice the amount of the cheque can be imposed. However, as this Court is not intending to impose jail sentence of more than 1 year, therefore, in the light of Section 143 of Negotiable Instruments Act, it is not necessary to hear the respondent on the question of sentence.
Considering the totality of the facts and circumstances of the case, the respondent is awarded jail sentence of rigorous imprisonment of 1 year and is also directed to pay compensation of ₹ 5 lacs which shall be payable to the appellant - tcompensation amount be deposited within a period of one month from today, failing which the respondent shall undergo the jail sentence of 3 months - respondent is directed to surrender before the Trial Court, on or before 31st of December 2020.
Appeal allowed.
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2021 (1) TMI 31
Dishonor of Cheque - Section 138 of Negotiable Instruments Act, 1881 - whether a direction for deposit of a part compensation before the Appellate Court is a discretion or as to whether it is in the nature of a mandate, the provisions of the Section 148 of the Act (as amended in the year 2018) need to be borne in mind? - HELD THAT:- Section 374 Cr.P.C. does not prescribe any condition for admission of an appeal. In other words, the provisions of the statute which vests a convict with a valuable right to challenge his conviction are not circumscribed by any conditions. Nor does any provision of the Negotiable Instruments Act, 1881 refer to any pre-condition for availing a valuable right of first appeal. Section 148 of the Act just vests the Appellate Court with the power to direct the appellant to deposit an amount not less than 20% of the compensation amount but under no circumstances the same can be interpreted to be a condition pre-requisite for availing the right of appeal. Imposition of any condition at the time of suspending of sentence may be a different matter and the trial Court may in its wisdom, impose such a condition failing which the order suspending sentence may be vacated. In other words, his bail during the pendency of appeal may be cancelled upon failure of the appellant to comply with the direction of deposit of such amount as may have been directed by the Appellate Court.
The right to appeal against conviction is an invaluable statutory right vested upon a convict by Cr.P.C. which cannot be allowed to be defeated by imposing any condition for availing such right. In fact, while giving a wider connotation to Article 21 of Constitution of India, it can even be said that depriving a convict of his right to appeal by imposing any pre-requisite for availing his statutory right to challenge conviction in a higher Court would amount to depriving his liberty without adhering to the established procedure of law - Even though the Negotiable Instruments Act, 1881 is a special Act and could override provisions of Cr.P.C., but there is no such specific provision in the Act which could be interpreted to mean that availing of right to appeal by a person convicted for an offence under the Act, has been made subject to some conditions. The submission, thus, made in this regard on behalf of the petitioner carries weight and deserves to be accepted.
The condition made in the impugned orders wherein the admission of appeal has been made subject to deposit of 20% of the compensation amount is set aside and it is ordered that the appeals shall stand admitted before the lower Appellate Court. The petitioners are, however, directed to deposit an amount equivalent to 20% of the amount of compensation awarded by the trial Court within 60 days from today - In case the aforesaid amount is deposited within 60 days from today, the bail already granted vide order dated 28.2.2020 by lower Appellate Court shall continue subject to any such fresh conditions as may be imposed by lower Appellate Court.
Petition accepted.
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2021 (1) TMI 30
Dishonor of Cheque - acquittal of the accused - Section 138 of the NI Act - main grounds urged in the respective appeals are that the trial Judge has committed an error in acquitting the accused and not properly appreciated the evidence in a proper perspective - HELD THAT:- Having perused the evidence available on record issuance of cheque is not in dispute and also notice has been given to the accused is also not in dispute. There is no dispute with regard to the fact that those notices are served on him and notice was served on him and he did not choose to give any reply. When the cheques are admitted and not given any reply, the Judgment of Rangappa's case is aptly applicable to the case on hand.
No doubt, on perusal of the agreement, there is a recital to enforce the agreement for specific performance and also to claim the damages. But, in the case on hand, the claim of the complainant is that the contract did not take place between the parties. Hence, the accused has issued the cheque for return of the amount what has been received. The very conclusion of the Trial Court is that the complainant ought to have approached the Civil Court is erroneous and there is a clause in the agreement itself in the event of failure on the part of the first party to perform this agreement he shall refund the advance amount. The other reason given by the Trial Court is that the cheques are issued towards security is also not based on any record -
First of all, the accused has not given any reply to the notice and also he did not dispute the issuance of notice. When such being the case, it is mandate on the part of the Trial Court to draw the presumption under Section 139 of the NI Act. Apart from that, the accused counsel himself suggested that the agreement was cancelled. When the same was cancelled, question of enforcing the agreement does not arise.
Having perused the reasoning of the The Trial Court that the same is a civil remedy and cheques might have issued for security is erroneous and the very approach of the Trial Court is not in consonance with the provisions of Section 138 of the NI Act and so also not under Section 139 of the NI Act and not drawn presumption. The Trial judge has committed an error in paragraph No.10 in coming to the conclusion that the complainant has not produced documents to show that there was talks between himself and accused pertaining to calculation of damages after alleged breach of contract for which accused had issued the cheque - the Trial Judge proceeded to pass an acquittal order not based on the presumption as well as on the settled principles of law and the material available on record.
In the case on hand, the accused has not rebutted the case of the complainant and there is no effective cross- examination and nothing is elicited from the mouth of P.W.1 with regard to the transaction and apart from that the accused himself has admitted the MOU between the complainant and accused. When such being the case, the Trial Judge ought not to have acquitted the accused - impugned Judgments of acquittal are hereby set aside - accused is convicted for the offence punishable under Section 138 of the NI Act - Appeal allowed.
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2021 (1) TMI 22
Dishonor of Cheque - Unsigned Cheque - insufficiency of funds - rebuttal of presumption - burden of proving that a cheque had not been issued for a debt or liability - main grounds urged in the appeal is that the Trial Judge has committed an error in acquitting the accused and failed to take note of the mischievous act of the accused in issuing an unsigned cheque - HELD THAT:- These are the aspects which have not been considered by the Trial Court while considering the material available on record both oral and documentary evidence and in the cross-examination of PW.1 also nothing is elicited to prove preponderance of probabilities of the case of the accused. PW.1 only gives the admission with regard to the transaction is concerned and having acquaintance with the accused and also admits that the payment was made in respect of consultation charges of the accused and it is clear that the services of the accused was availed for conversion of the land. No doubt, in the cross-examination of PW.1, it is elicited that no documentary proof with regard to entrusting the work to the accused for conversion of the land and then, the accused has to explain why he has received the amount more than ₹ 7,50,000/- other than the exhibits he relied upon. There is no explanation on the part of the accused for having received more than ₹ 7,50,000/-, when this Court comes to a conclusion that the document - Ex.P4 is issued by the accused only since he has not sent the document to the handwriting expert and the very theory of he has given the blank cheque as security cannot be accepted that too unsigned cheques.
The trial Judge has committed an error in coming to the conclusion that the accused has made out the case by rebutting the evidence of the complainant and preponderance of probabilities are made out. The trial Judge did not consider the material available on record in a proper perspective. The Trial Court ought to have drawn the presumption against the accused under Section 139 of the NI Act. When the accused though denied the signature when he has not sent the same to the handwriting expert and also not given any reply to the notice and instead of drawing the presumption in favour of the complainant, the trial judge believed the evidence of the accused and committed an error which amounts to perversity and also not considering the material available on record.
The impugned judgment of acquittal is hereby set aside - Appeal allowed.
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2021 (1) TMI 21
Dishonor of Cheque - insufficiency of funds - acquittal of accused - grounds urged in the appeal are that the Trial Judge has committed an error in coming to the conclusion that the complainant was insolvent even though there were no material to declare him as insolvent - HELD THAT:- The evidence of P.W.1 does not inspire the confidence of the Court that loan transaction was taken place between the complainant and the accused. The accused has led the probable defence by examining D.W.2 and also setting up the defence immediately after the receipt of notice and gave the reply in terms of Ex.P.8 that the cheque given to Raghupathi Bhat on 26.03.2007 was misused by the complainant. No doubt, though the complaint filed by the accused was registered, after the investigation 'B' report was filed. The Court has to take note of the material on record. The very contention that the Appellate Court ought to have drawn the presumption in favour of the accused, cannot be accepted. Mere signature found in Ex.P.1 is not a ground to draw the presumption. Instead the accused has made out the case leading probable defence rebutting the evidence of the complainant.
There are no error committed by the Appellate Court in re-appreciating the evidence available on record. However, committed an error in coming to the conclusion that the complainant is insolvent and the Appellate Court ought not to have made such an observation. But the documentary proof discloses that the complainant was not having sufficient amount in his account and also in his wife's account to lend the money during the particular period. However, it does not mean that the complainant became insolvent - there are no error committed by the Appellate Court in coming to the conclusion that the accused rebutted the case of the complainant.
Appeal dismissed.
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2021 (1) TMI 19
Dishonor of Cheque - existence of legally enforceable debt or not - rebuttal of presumption - Section 139 of the NI Act - HELD THAT:- It is clear that the amounts are not given to the complainant. DW.3 though in his evidence, he says that the amount was paid in his presence and the complainant has affixed the signature on Ex.D2. It is elicited in the cross-examination that he does not know anything about the payment of money by the complainant to the accused and also how much amount was paid to him, but he claims that the complainant told him that the accused has availed an amount of ₹ 3,50,000/- and insisted him to get the money from the accused. He also claims that in the Hotel, it was decided to return the amount of ₹ 5,50,000/-. All of them have signed the documents in the Kanishka Hotel, DW.2 was also present and he claims that an amount of ₹ 2 lakhs was paid, but he came to know that already an amount of ₹ 3,50,000/- was paid prior to that. DW.2 says that in his presence the amount was not paid and he subsequently signed the documents-Exs.D2. But DW.3 claims that in his presence only after receiving the amount of ₹ 2 Lakhs, the complainant has signed the documents.
The trial Judge failed to appreciate the admission elicited from the mouth of DWs.1 to 3 particularly with regard to the defense which he has taken instead of that doubted the case of the complainant. Even though nothing is elicited in the cross- examination of PW.1 except not disclosing the same in the Income Tax returns. Hence, the Judgment of the Trial Court requires to be set aside, the same is perverse and not based on the material available on record and also the documents relied upon by the accused also not creditworthy and the accused even gone to the extent of indulging in creating of document - Ex.D2 and other documents not comes to the aid of the accused and in spite of that he has not rebutted the evidence of the complainant, erroneously acquitted the accused.
The subject matter of the cheque is for the year 2008 and almost 12 years has elapsed and while imposing the fine, this Court has to take note of the period of 12 years in sentencing the accused for the offence under Section 138 of the NI Act - the impugned judgment of acquittal is set aside - appeal allowed.
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2021 (1) TMI 16
Dishonor of Cheque - insufficiency of funds - demand arising out of statutory notice, not paid - Acquittal of the accused - Section 138 of the Negotiable Instruments Act - HELD THAT:- The trial court acquitted the accused in all the five cases. According to the trial court since one of the clause in the agreement says the consequence of the dishonour of the cheque, the offence under Section 138 of the Negotiable Instruments Act is not attracted. I cannot agree with the same - There cannot be an agreement against the statutory provision or an offence which is made out if the formalities in the Negotiable Instruments Act are complied. Therefore, according to me, the impugned judgments in these appeals are unsustainable. I do not want to make any further opinion in this case because I am remanding these five appeals to the lower court for fresh consideration in accordance to law. There is no representation for the accused in these cases.
The matter remanded to the lower court to settle the matter or to defend the cases on any other point, if it is available - appeal allowed by way of remand.
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