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Indian Laws - Case Laws
Showing 41 to 60 of 67 Records
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2021 (4) TMI 982 - SUPREME COURT
Fabricating false deed of agreement for sale for the purpose of being shielded from legal action in the disproportionate assets case - seizure of currency in addition to jewellery and property papers - assets disproportionate to the Appellant’s known sources of income - Section 195(1)(b) of the Code of Criminal Procedure, 1973 - HELD THAT:- In the present case, the allegation against Accused Nos. 2 and 3 is that they colluded with Appellant/Accused No. 1 to create a false sale deed, and gave false explanation of escrow arrangement amongst the three parties, to justify how the seized currency came to be in the Appellant’s possession. This was done to exonerate the Appellant/Accused No. 1 and recover the seized currency at the stage of investigation itself, which is deemed to be “a stage of a judicial proceeding” under Explanation 2 of Section 193. Had the genuineness of the sale deed been accepted, the Respondent may have erroneously opined that the seized currency belonged to Accused No. 2, and consequently abandoned proceedings under Section 13(1)(e), PC Act against the Appellant. Therefore Section 193, IPC is squarely applicable to the allegations at hand.
Whether an offence under Section 193, IPC committed at the stage of investigation, prior to production of the false evidence before the Trial Court by a person who is not yet party to proceedings before the Trial Court, is an offence“in relation to” a proceeding in any court under Section 195(1)(b)(i), CrPC? - HELD THAT:- The presence of “in relation to” under Section 195(1)(b)(i) means that Iqbal Singh Marwah would not have blanket application to every case where a complaint is lodged in respect of an offence specified under that Section. However, on the facts of Bandekar Brothers, this was not a situation in which the offence complained of did not have a “reasonably close nexus” with the court proceedings. The offence of giving false evidence was committed by the respondents, who were party to the court proceedings, for the purpose of leading the Court to form an erroneous opinion on a point material to the result of the proceedings. Hence it could be said that though the offence was not committed during the course of the court proceedings, it was certainly committed “in relation to” such proceedings.
The construction of the words “in relation to” must be controlled by the overarching principle applicable to Section 195(1)(b), CrPC as stated in PATEL LALJIBHAI SOMABHAI VERSUS THE STATE OF GUJARAT [1971 (5) TMI 75 - SUPREME COURT] and SACHIDA NAND SINGH AND ANR. VERSUS. STATE OF BIHAR AND ANR. [1998 (2) TMI 583 - SUPREME COURT], which was affirmed by the Constitution Bench in IQBAL SINGH MARWAH & ANR. VERSUS MEENAKSHI MARWAH & ANR. [2005 (3) TMI 750 - SUPREME COURT]. That is, even if the offence is committed prior to giving of the fabricated evidence in court, it must have a direct or reasonably close nexus with the court proceedings.
In case the bar under Section 195(1)(b)(i) is applied to offences committed during the course of investigation, the Court may think it fit to wait till the completion of trial to evaluate whether a complaint should be made or not. Subsequently, the Court may be of the opinion that in the larger scheme of things the alleged fabrication of evidence during investigation has not had any material impact on the trial, and decline to initiate prosecution for the same. The investigation agency cannot be compelled to take a chance and wait for the trial court to form its opinion in each and every case
Whether the words “stage of a judicial proceeding” under Explanation 2 to Section 193, IPC can be equated with “proceeding in any court” under Section 195(1)(b)(i), CrPC? - HELD THAT:- This Court has, in some instances, opined that where the law deems proceedings before a certain authority to be “judicial proceedings”, the same would be considered as “proceedings in any court” under Section 195(1)(b)(i), CrPC. Therefore, if the offence under Section 193, IPC is committed before such an authority, the written complaint of that authority is mandatorily required for trial of the offence - in the present case, it is not the Trial Court but the Respondent authority/agency which has been directly impacted due to fabrication of evidence by the Appellants/accused. The Appellants’ intention was not to mislead the Trial Court, at least not at the first instance. Rather, their goal was to ensure that the Appellant/Accused No. 1 was cleared of wrongdoing at the stage of investigation itself. It was after being charged under Section 193, IPC, that the Appellants/accused reiterated the fictitious escrow arrangement story before the Trial Court so as to prove their innocence. Hence it cannot be said that the offence under Sections 120B read with 193, IPC was committed by the Appellants “in relation to” a proceeding in a court under Section 195(1)(b)(i), CrPC.
The questions of law stated in paragraph 6 (supra)stand answered against the Appellants/accused. Even on merits, we do not find any valid reason to interfere with the concurrent findings of the Trial Court and the High Court. The High Court has rightly observed that the Appellant/Accused No. 1 had not raised the defence of holding the money in escrow for Accused Nos. 2 and 3 at the time of search conducted at his house on 24.01.2001. The supposed agreement of sale was also not produced - The stamp paper on which the sale deed was made was also proved to be illegal. Hence it is apparent that the Appellants/accused entered into an elaborate conspiracy and attempted to create a false circumstance of escrow transaction for the purpose of shielding Appellant/Accused No. 1 from prosecution. In fact, the High Court has shown great lenity by reducing the sentences awarded to the Appellants/accused in view of their advanced age and delay in completion of the trial. In view of the gravity of the offence, no further benefit can be granted to them in this regard.
Appeal dismissed.
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2021 (4) TMI 926 - DELHI HIGH COURT
Grant of regular bail - Recovery of pseudoephedrine hydrochloride from her baggage - section 67 of NDPS Act - HELD THAT:- The substance alleged to have been recovered from the petitioner/accused is 19.3 Kg. of pseudoephedrine hydrochloride which is a controlled substance. It has been rightly submitted by the Ld. counsel for the petitioner/accused that it is neither a narcotic drug nor a psychotropic substance under the NDPS Act. The alleged offences are not punishable with death or imprisonment for life. The offence falling U/s 9A r/w section 25A of the NDPS Act is punishable with imprisonment which may extend to 10 years and also fine which may also extend to ₹ 1 Lakh and the bar of Section 37 is not attracted in the present case as the substance recovered is a controlled substance within the meaning of Section 2 (viid) of the Act.
Whether the petitioner/accused who is a foreign national is entitled to be released on bail, if she is able to make out a case in her favour? - HELD THAT:- There is no bar for releasing foreign national on bail, if the case so warrants.
The bar of section 37 of the NDPS Act is not applicable. Therefore, keeping in view the entire facts and circumstances, the petitioner/accused who is in J.C. since 13.07.2019 is admitted to bail on her furnishing personal bond in the sum of ₹ 1,00,000/- with two solvent sureties each of the like amount subject to the satisfaction of the trial Court. Being released on bail, the petitioner shall inform the NCB Office, the address at which she will reside during the period she is on bail - application disposed off.
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2021 (4) TMI 925 - DELHI HIGH COURT
Grant of Regular Bail - 65 pellets/capsules allegedly recovered from the stomach of petitioner - instruction 1/88 dated 15.03.1988 of Narcotic Control Bureau - non-compliance of Section 50 of NDPS Act - HELD THAT:- It has been categorically stated in the complaint in question that notice under Section 50 of the NDPS Act was issued to the accused Bobby Collins Anagor by Sh. B.L.Bairwa, IO, NCB and he was also explained of his legal rights that if he desires his search can be conducted before a Magistrate or a Gazetted officer to which he denied and also wrote the same on the Notice under Section 50 of the NDPS Act. It is further noted that Sh.CSK Singh, IO offered their personal search to petitioner, to which also he refused. Thereafter, petitioner was taken to the CISF room where his baggage was physically examined but nothing was recovered from his personal search - With regard to compliance under Section 67 of the Act, it has been averred in the complaint that once the accused/petitioner disclosed carrying pellets/ capsules in his stomach, he was served with notice under Section 67 of the Act, on which he requested the NCB officers to take him to NCB office to enable him to tender his voluntary statement. Petitioner recorded his voluntary statement in his own handwriting in which he accepted having swallowed pellets/capsules of drugs and requested to take him to hospital.
A small amount of powder was taken separately from each packet and tested separately with the help of field testing kit which gave results for cocaine. Since all the recovered cocaine from 65 capsules were of same size, packaging, texture, colour and property, they were transferred to a polythene packet and weighed. It came out to be 1.320 kg, out of which two samples of 5 gms each were drawn and put inside two zip lock pouches. The process was completed in the presence of CSK Singh, Investigating Officer and two independent witnesses and after completion of other necessary procedure, the sample so obtained and marked was sent to the Chemical Examiner, CRCL.
Pertinently, the petitioner has approached this Court when only one prosecution witness remains to be examined and trial is at the fag end. During the course of hearing, learned counsel sailed this Court through examination and cross-examination of witnesses PW-3 and PW-10 to point out various infirmities in the prosecution case. Prosecution evidence is yet to be concluded and testimonies of other witnesses are not before this Court, hence, it would not be worthwhile to scrutinize the statements of these two witnesses in piecemeal. Furthermore, in what way and manner the prosecution failed to follow the procedure prescribed under the Act, can be established by the petitioner during his evidence in defence.
Petition dismissed.
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2021 (4) TMI 919 - KARNATAKA HIGH COURT
Maintainability of petition - Public Interest Litigation - constitution of multi-disciplinary investigation team to investigate into the alleged breach of the provisions of the Reserve Bank of India Act, 1934, (RBI Act), the Income Tax Act, 1961, (IT Act) the Securities and Exchange Board of India Act, 1992 - HELD THAT:- This Court, on a closure scrutiny of the assertions and references in this petition and in the writ petition in INDIA AWAKE FOR TRANSPARENCY SHRISTHI CRESCENDO VERSUS UNION OF INDIA, THE DIRECTOR ENFORCEMENT DIRECTORATE, CHAIRMAN SECURITIES AND EXCHANGE BOARD OF INDIA, GOVERNOR RESERVE BANK OF INDIA, CHAIRMAN CENTRAL BOARD OF DIRECT TAXES, MR AH PREMJI, M/S HASHAM INVESTMENT AND TRADING COMPANY PRIVATE LIMITED [2020 (10) TMI 1239 - KARNATAKA HIGH COURT] is of the considered view that the petitioner cannot be permitted to continue with this petition despite the unconditional withdrawal of the said writ petition in W.P.No.3635/2020 (PIL) even on the ground that the subject matters in these two petitions are different: to permit the petitioner to continue the writ petition would be overlooking the kernel given the core issues urged by the petitioner for the seeming and encouraging artifice.
It is already observed that the Coordinate Benches in similar circumstances relying upon this proposition have dismissed the other writ petitions holding that such petitions, which are filed after abandoning the earlier petition with the unconditional withdrawal, would not be maintainable. This Court is also of the considered view that the enunciation by the Hon’ble Supreme Court in Sarguja Transport Services vs. State Transport Appellate Tribunal, M.P., Gwalior and others [1986 (11) TMI 377 - SUPREME COURT] would apply and the petition is liable to be dismissed also on this ground.
Petition dismissed.
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2021 (4) TMI 841 - SUPREME COURT
Prevention from Abuse of Court Processing - Role of Lower Judiciary - misuse of own processes in a judgement - Frivolous Litigation - physical altercation that took place between the Appellants, and the Respondent No. 2 and his wife - HELD THAT:- It is a settled canon of law that this Court has inherent powers to prevent the abuse of its own processes, that this Court shall not suffer a litigant utilising the institution of justice for unjust means. Thus, it would be only proper for this Court to deny any relief to a litigant who attempts to pollute the stream of justice by coming to it with his unclean hands. Similarly, a litigant pursuing frivolous and vexatious proceedings cannot claim unlimited right upon court time and public money to achieve his ends.
This Court’s inherent powers under Article 142 of the Constitution to do ‘complete justice’ empowers us to give preference to equity and a justice¬oriented approach over the strict rigours of procedural law. This Court has used this inherent power to quash criminal proceedings where the proceedings are instituted with an oblique motive, or on manufactured evidence.
Appeal allowed - decided in favor of appellant.
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2021 (4) TMI 784 - GAUHATI HIGH COURT
Dishonor of Cheque - acquittal of the accused - liability to pay exist or not/ enforceable debt or not - cheque issued on force and threat or not - Section 138 of the N.I. Act - HELD THAT:- The cheque vide Ext.1 was admittedly drawn by D.W.1, the accused/ respondent No.1 for payment of an amount of ₹ 1,15,000/-, which was returned dishonoured by the Union Bank of India, (U.B.I.) Tinsukia Branch to the complainant/ appellant vide Ext.2, the letter and Ext.3, the bank note.
Whether the cheque vide Ext.1 was issued in discharge of a debt/ liability of the accused/ respondent No.1? - HELD THAT:- There is no denying the fact that admittedly the accused/ respondent No.1 issued the cheque without the name of the payee, which the complainant/ appellant (payee) himself filled up and presented in bank for encashment. The evidence shows that the cheque amount was payable in terms of a written contingent agreement, copy of which is, of course, not exhibited, in the event of performance of the function by the artists through Progoti Enterprise, Mumbai, which enterprise was not even impleaded as accused/ respondent or its representative examined by either of the parties in the case. The complainant has not event established that he was the authorized signatory of the said enterprise to receive the cheque on its behalf and that the accused/ respondent No.1, being the President of the said unregistered N.G.O namely, ‘Digboloy’ was personally liable under any debt or liability towards the complainant/ appellant on the date of issue of the cheque in question wherein he himself admittedly entered his name in different ink.
This Court sees no reason to reverse the finding of acquittal of the accused/ respondent No.1 of the offence subscribing substituted views expressed by the Learned Trial Court - Appeal dismissed.
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2021 (4) TMI 780 - CALCUTTA HIGH COURT
Issuance of Duplicate share certificates - original share certificates were misplaced - section 420/406 of the Penal Code - HELD THAT:- In the case in hand, the allegations made against the accused petitioners are bereft of any intention of cheating or misappropriation at the inception of the transaction. The equity shares were admittedly issued against consideration and loss or misplacement of such shares by the opposite party is a subsequent event which was not contemplated by the parties at the time of issuance of the shares. No prima facie case of initial deception has been made out and under no stretch of imagination can it be held that the petitioners acted with criminal intent at the inception on an anticipation that the shares would be misplaced at a subsequent stage.
Even if it is held that duplicate share certificates were deliberately not issued in favour of the opposite party with criminal intent, such act was done at a subsequent stage only after the original share certificates were misplaced and no such intent is found at the inception of the transaction.
No prima facie case of criminal intent at the inception having been made out against the petitioners in the complaint, it can be held that no criminal offence, far less an offence under section 420/406 of the Penal Code is disclosed in the complaint and allowing the proceedings to continue shall amount to abuse of the process of law - application allowed.
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2021 (4) TMI 749 - KERALA HIGH COURT
Rejection of registration of a partnership firm constituted by the petitioner - whether LLP can be treated as a person which can be permitted to form a partnership with an individual? - HELD THAT:- In the present case an individual agreed with an LLP to share the profits of the business. LLP is a body corporate, independent legal entity having a common seal and perpetual succession, capable of suing and of being sued. Once a partnership is formed the LLP, which is a partner would have to abide by the partnership Act. The respondent's objection is based on the liability of the partners of LLP, stating that the same is confined to the terms in the agreement - The liability of partners of LLP and liability of the LLP as a partner under the Partnership Act would be different. The liability of partners in an LLP cannot have any relevance when the LLP itself becomes a partner, when it would be bound by the provisions in the Partnership Act. The liability of the LLP would be as in the case a company which joins a firm after entering into a partnership.
Section 4 of the Partnership Act permits Constitution of a firm or partnership between one or more persons. In this case the partnership deed was executed between an individual and an LLP which is a body corporate having a legal entity and coming within the definition of “person”. The individual liability of the partners of LLP would not be relevant when the LLP itself would have liability independent of the liability of the partners. Therefore, the difference in the provisions under the Partnership Act relating to liability of the firm or the individual partners would not stand in the way of constitution of a partnership with an LLP - LLP cannot have a disqualification from entering into a partnership with an individual or other persons.
There shall be a direction to the respondent to reconsider the request of petitioner for registration and to take appropriate action on the same within a period of one month from the date of receipt of a copy of the judgment - Petition allowed - decided in favor of petitioner.
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2021 (4) TMI 748 - KERALA HIGH COURT
Dishonor of Cheque - correctness of the finding of acquittal - rebuttal of presumptions - Sections 118 and 139 of Negotiable Instruments Act - HELD THAT:- It is the settled proposition of law that once the execution of the document is admitted or proved, the complainant is entitle to draw the presumptions under Sections 118 and 139 of the Act. In the decision reported in Bir Singh v. Mukesh Kumar [2019 (2) TMI 547 - SUPREME COURT]. The Hon'ble Supreme Court has held that if a signed blank cheque is voluntarily presented to a payee, towards some payment, the payee may fill up the amount and other particulars and itself would not invalidate the cheque - Thus after admitting issuance of Ext. P2 cheque, and having regard to the circumstances led to the issue of the instrument, the first respondent is estopped from taking contentions.
Much has been argued about the Ext. D2 counter foils of cheques kept by him. In my assessment, no inference can be drawn on the arguments based on Ext. P2. It can be assumed that it is a document maintained in regular course of business. Even otherwise, the other circumstances adverted to earlier give a clear upper hand to the appellant. He has proved execution of Ext. P2 cheque and thus is entitled to draw the presumptions under Sections 118 and 139 of the Act. The first respondent could not rebut the presumptions. The learned Magistrate has failed to consider these relevant aspects on its proper perspective. The judgment is liable to be interfered with.
The finding that the first respondent has not committed the offence is liable to be reversed. He is found guilty of offence punishable under Section 138 of the Act, convicted and sentenced to pay a fine of ₹ 81,500/- which shall be paid as compensation to the appellant - Appeal allowed - decided in favor of appellant.
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2021 (4) TMI 740 - KARNATAKA HIGH COURT
Dishonor of Cheque - service of notice - legal notice sent, returned as claimed - acquittal of accused - rebuttal of presumption - HELD THAT:- The postal cover sent through RPAD returned as not claimed does not mean due service of notice. Even during the course of cross-examination of P.W.1, nothing has been elicited regarding service of notice. When the appellant-complainant has not sent the legal notice to the respondent-accused under certificate of posting, there is no presumption of due service of notice to the respondent-accused. It is pertinent to note that the respondent-accused has not placed rebuttal evidence to prove that the notice was not sent to the correct address and the respondent-accused was not working at the address shown in the envelope sent through legal notice. Ex.P-12 is the legal notice postal cover, the address shown in the said postal cover and the address shown in the cause title of the complaint are one and the same. The respondent-accused has not at all denied that he was working as Health Inspector at the City Municipality Council, Davanagere.
When a sender has dispatched the notice through registered post with correct address written on it, Section 27 of General Clauses Act could be profitably imported and in such a situation service of notice deemed to have been effected on the sender unless he proves that it was really not served and he was not responsible for such non-service. In the present case, there is no rebuttal evidence to show that the complainant has deliberately and intentionally sent the legal notice to the wrong address and the accused was not working at the place and address shown in the registered envelope.
The finding recorded by the Court below regarding service of notice through registered post holding that there is no proper service of notice is contrary to Section 138 of N.I. Act - the respondent-accused has failed to rebut the presumption by placing cogent and convincing evidence. Therefore, this Court is of the view that the findings recorded by the Court below cannot be sustained in law.
Appeal allowed - decided in favor of appellant.
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2021 (4) TMI 703 - SUPREME COURT
Smuggling - poppy straw - requirement of search warrants for conducting raids - public conveyance or not - non-compliance of Section 42 of N.D.P.S. Act - HELD THAT:- The evidence in the present case clearly shows that the vehicle was not a public conveyance but was a vehicle belonging to accused Gurdeep Singh. The Registration Certificate of the vehicle, which has been placed on record also does not indicate it to be a Public Transport Vehicle. The explanation to Section 43 shows that a private vehicle would not come within the expression “public place” as explained in Section 43 of the NDPS Act.
On the strength of the decision of this Court in Jagraj Singh alias Hansa [2016 (7) TMI 44 - SUPREME COURT], the relevant provision would not be Section 43 of the NDPS Act but the case would come under Section 42 of the NDPS Act.
It is an admitted position that there was total non-compliance of the requirements of Section 42 of the NDPS Act - Total non-compliance of Section 42 is impermissible. The rigor of Section 42 may get lessened in situations dealt with in the conclusion drawn by this Court in Karnail Singh 1 but in no case, total non-compliance of Section 42 can be accepted.
Appeal allowed.
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2021 (4) TMI 702 - SUPREME COURT
Dishonor of two cheques - dispute remained pending for past 16 years - humongous pendency of complaints under Section 138 of the Act - service of summons - Statutory amendment to Section 219 of the Code - Summary trials - Attachment of bank accounts - Applicability of Section 202 of the Code - Mediation - Inherent jurisdiction of the Magistrate.
Service of summons - HELD THAT:- Service of summons on the accused in a complaint filed under Section 138 of the Act has been one of the main reasons for the delay in disposal of the complaints - several suggestions have been given by the learned Amici Curiae for speeding up the service of summons. Some of the suggestions given by him pertain to dishonour slips issued by the bank under Section 146 of the Act, disclosing the current mobile number, email address and postal address of the drawer of the cheque, the details of the drawer being given on the cheque leaf, creation of a Nodal Agency for electronic service of summons and generation of a unique number from the dishonour memo. The Union of India and the Reserve Bank of India were directed to submit their responses to the suggestions made by the learned Amici Curiae on these aspects.
Mechanical conversion of Summary Trial to Summons Trial - HELD THAT:- The object of Section 143 of the Act is quick disposal of the complaints under Section 138 by following the procedure prescribed for summary trial under the Code, to the extent possible. The discretion conferred on the Magistrate by the second proviso to Section 143 is to be exercised with due care and caution, after recording reasons for converting the trial of the complaint from summary trial to summons trial. Otherwise, the purpose for which Section 143 of the Act has been introduced would be defeated. We accept the suggestions made by the learned Amici Curiae in consultation with the High Courts. The High Courts may issue practice directions to the Magistrates to record reasons before converting trial of complaints under Section 138 from summary trial to summons trial in exercise of power under the second proviso to Section 143 of the Act.
Inquiry u/s 202 of the Cods in relation to section 145 of the act - HELD THAT:- Section 145 had been inserted in the Act, with effect from the year 2003, with the laudable object of speeding up trials in complaints filed under Section 138. If the evidence of the complainant may be given by him on affidavit, there is no reason for insisting on the evidence of the witnesses to be taken on oath. On a holistic reading of Section 145 along with Section 202, we hold that Section 202 (2) of the Code is inapplicable to complaints under Section 138 in respect of examination of witnesses on oath. The evidence of witnesses on behalf of the complainant shall be permitted on affidavit. If the Magistrate holds an inquiry himself, it is not compulsory that he should examine witnesses. In suitable cases, the Magistrate can examine documents for satisfaction as to the sufficiency of grounds for proceeding under Section 202.
Sections 219 and 220 of the Code - HELD THAT:- The High Courts are requested to issue practice directions to the Trial Courts to treat service of summons in one complaint forming part of a transaction, as deemed service in respect of all the complaints filed before the same court relating to dishonour of cheques issued as part of the said transaction.
Inherent powers of the Magistrate - HELD THAT:- Section 143 of the Act mandates that the provisions of summary trial of the Code shall apply “as far as may be” to trials of complaints under Section 138. Section 258 of the Code empowers the Magistrate to stop the proceedings at any stage for reasons to be recorded in writing and pronounce a judgment of acquittal in any summons case instituted otherwise than upon complaint. Section 258 of the Code is not applicable to a summons case instituted on a complaint. Therefore, Section 258 cannot come into play in respect of the complaints filed under Section 138 of the Act.
The High Courts are requested to issue practice directions to the Magistrates to record reasons before converting trial of complaints under Section 138 of the Act from summary trial to summons trial. Inquiry shall be conducted on receipt of complaints under Section 138 of the Act to arrive at sufficient grounds to proceed against the accused, when such accused resides beyond the territorial jurisdiction of the court - amendment to the Act empowering the Trial Courts to reconsider/recall summons in respect of complaints under Section 138 shall be considered by the Committee constituted by an order of this Court dated 10.03.2021.
List the matter after eight weeks. Further hearing in this matter will be before 3-Judges Bench.
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2021 (4) TMI 657 - KERALA HIGH COURT
Dishonor of Cheque - Rebuttal of presumptions under Sections 118 and 139 of NI Act - genuine document supported by consideration or not - HELD THAT:- As rightly noticed by the learned Magistrate, it appears that his scribe has strained very much to adjust the space by modulating the size of letters in accordance with the space available above the signature of the first respondent, which is shown in the stamp paper. Moreover, though four signatures of the first respondent are shown in the stamp paper, which, according to the appellant, are that of the first respondent, the first respondent admits only one. On the very face of the document, three signatures are in one ink and another signature on the top, that is found against the name of the first respondent, is in different ink. If the document was signed by the first respondent in a single stretch, two pens might not have been used for the purpose. Similarly, the size of the letters, the attempt of the scribe to fill the gap and the different fonts used for the purpose etc., give an insight that it is not a genuine document executed by the first respondent in the manner alleged by the appellant.
The learned Magistrate was not expected or justified in drawing a presumption in favour of the appellant so as to convict the first respondent. If only the appellant/complainant has discharged his initial burden, the first respondent is expected to rebut the presumption - thus, the appellant has not put up a genuine, convincing case; the learned Magistrate cannot be found fault with for acquitting the first respondent, in spite of the fact that appreciation of evidence is not up to the expectation. Whatever it may be, overwhelming reasons are not made out to interfere with the judgment of acquittal passed by the learned Magistrate, under Section 378(4) of the Cr.P.C.
Appeal dismissed.
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2021 (4) TMI 651 - BOMBAY HIGH COURT
Dishonor of Cheque - acquittal of accused - dishonoured cheque were towards the discharge of a liability or not - legally enforceable debt for attracting presumption, present or not - rebuttal of presumption or not - applicability of Money Lenders Act - HELD THAT:- The evidence on record clearly leads to the conclusion that though the endorsement on the cheque return memo states that the signatory to the account had changed, the real fact borne from the evidence is that concerned cheque was dishonoured as there were “no sufficient funds” in the account nor was any arrangement made to cover the said cheque.
Whether the Judgment passed by the learned JMFC contrary to law and resulted in gross miscarriage of justice by acquitting the respondents/accused? - HELD THAT:- It appears that the cheque bears a word “Self” in place of payee's name. The learned trial Judge held that even self cheque would come within the ambit of Section 138 of the NI Act and held that the complainant is the holder in due course.
Whether the cheques have been issued for the discharge in whole or in part of any debt or other liability? - HELD THAT:- It is now well settled that the complainant is required to establish the case beyond reasonable doubt whereas the accused can discharge the burden on preponderance of probabilities. This can be done on the basis of cross examination of the witnesses of the complainant and any other material available on the record and it is not necessary for this purpose the accused should enter into the witness box - The question really is about the extent to which such presumption can operate and can the benefit of such presumption be availed then the case set up by the complainant is found to be not substantiated.
Application of Money Lenders Act - HELD THAT:- A common proposition emerges that when offence under section 138 is in respect of a company section 141 comes into play. It is a penal provision creating vicarious liability and must be strictly construed. It is therefore, not sufficient to make a bald cursory statement in the complaint that the director (arrayed as an accused)in charge of and responsible to the company for the conduct of the business of the company. The complaint should spell out as to how and in what manner the accused was in charge of or was responsible to the company for the conduct of its business.
It is matter of record that on all the 12 cheques the signatories are not the same. On six cheques as shown in the chart are issued under the signature of Fredrick and S. Kumar and six under the signature of Fredrick and Kurien. However, in all the 12 complaints all the three persons were made as respondents/accused. Apart from this there is no specific averments who is the director responsible for the affairs of the accused no.1 company. Thus it transpires that complainant himself is not sure as to who were the directors and responsible person - the acquittals of the respondents herein is perfectly justified. It reveals from the record that accused nos.3, 4,5 and 6 are not the signatories to the cheques in dispute. There are no specific averments against these accused that they are connected or responsible to the affairs of the company. The signatories were already resigned and or authority thereof is withdrawn by the company which is made clear giving reply to the notice inspite of that all the nine respondents are arrayed as accused.
So far as application of money-lending Act is concerned, in view of Section 6 of the Goa Money-Lenders Act, 2001, every person who is engaged in business of money lending, should apply for licence to the Registrar of money-lending before the prescribed date and in prescribed form annually - there are various transactions of the loan as per the complainant's contention itself. If that would be the case, for his past transactions of money lending, he ought to have after coming into force of the said Act of money lending, registered with the Registrar of money-lending within 15 days. Such transactions cannot be termed as hand loan. He is also claiming that he has received 24% interest. As such, without registration or intimation to the Registrar as per the Goa Money-Lenders Act, the amount so advanced, cannot be termed as legally enforceable debt.
Criminal Misc. Applications are allowed.
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2021 (4) TMI 470 - ALLAHABAD HIGH COURT
Dishonor of Cheque - rebuttal of presumption - signatures on cheque accepted - decision on receipt of notice - Section 143A of Negotiable Instruments Act - HELD THAT:- Considering that the petitioner has admitted his signatures on the cheque in question and that even according to the petitioner some amount was due and payable, there is a presumption under Section 139 of the N.I. Act that there exists a legally enforceable debt or liability. Of course such presumption is rebuttable in nature and the same could only be done by adducing evidence at trial but at this stage as the minute appreciation of evidence is not to be done complaint could not be quashed on this score. Therefore at this stage of trial complainants are entitled for the presumption as provided under Section 139 of N. I. Act.
The reciept of notice could not be decided in the proceedings under Section 482 Cr.P.C and the same has to be decided in the trial after the evidence has been led by the parties - the trial court is directed that if in compliance of its order dated 11.11.2020 the required amount is deposited or recovered from the petitioner the same will only be released in favour of opposite parties 2 and 3 on their furnishing adequate sureties, so that the amount remains secured.
There are no merits in the petition - petition dismissed.
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2021 (4) TMI 362 - KARNATAKA HIGH COURT
Seeking grant of Bail - Smuggling - suspected parcels containing ‘MDMA’ drugs, weighing 150 gms - contraband articles seized from the possession of the petitioner - case of Revenue is that investigation clearly revealed that the said drugs were purchased and ordered by the petitioner through parcel from Netherland, he is from the Kerala State - HELD THAT:- This Court has considered the entire material on record and detailed orders are passed and dismissed the petition. Except the contention that the petitioner’s father is unwell, there is no other additional ground addressed by the learned counsel for the petitioner. As per the records, seized drug is 150 gms which is 15 times more than the commercial quantity and worth of ₹ 15.00 lakhs. The alleged offence is a heinous one. If the petitioner is granted bail, there is every possibility of tampering the witnesses and absconding the case is not ruled out.
The petitioner has not made out any fresh ground for considering the bail petition - Petition dismissed.
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2021 (4) TMI 319 - SUPREME COURT
Transfer of shares - pre-emptive right to purchase of shares - consideration of agreements which contains arbitration clause - HELD THAT:- It is obvious that whether the MoU has been novated by the SHA dated 12.04.1996 requires a detailed consideration of the clauses of the two Agreements, together with the surrounding circumstances in which these Agreements were entered into, and a full consideration of the law on the subject. None of this can be done given the limited jurisdiction of a court under Section 11 of the 1996 Act - Detailed arguments on whether an agreement which contains an arbitration clause has or has not been novated cannot possibly be decided in exercise of a limited prima facie review as to whether an arbitration agreement exists between the parties. Also, this case does not fall within the category of cases which ousts arbitration altogether, such as matters which are in rem proceedings or cases which, without doubt, concern minors, lunatics or other persons incompetent to contract. There is nothing vexatious or frivolous in the plea taken by the Appellant.
Apart from going into a detailed consideration of the MoU and the SHA, which is exclusively within the jurisdiction of the arbitral tribunal, the learned Single Judge, while considering clause 28 of the SHA to arrive at the finding that any kind of agreement as detailed in clause 28.2 between the parties shall stand superseded, does not even refer to clause 28.1. No consideration has been given to the separate and distinct subject matter of the MoU and the SHA.
The judgment of the High Court is set aside and matter referred to the parties to the arbitration of a sole arbitrator, being Justice Aftab Alam (retired Judge of this Court), who will decide the dispute between the parties without reference to any observations made by this Court, which are only prima facie in nature - appeal disposed off.
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2021 (4) TMI 318 - SUPREME COURT
Validity of Guidelines issued by the Institute of Chartered Accountants of India (ICAI) - specified number (Cap) of tax audit assignments - Seeking for transfer of several writ petitions pending in the Kerala High Court, Madras High Court and Calcutta High Court - validity of Chapter VI of Guidelines No.1CA(7)/02/2008 dated 08.08.2008 - disposal of writ petition on early date - HELD THAT:- The fact that this Court on 03.04.1991 had dismissed the Transfer Petition Nos.614-615 of 1990 observing that the concerned High Courts may dispose of the writ petition on early date cannot be treated any kind of bar in transferring the writ petition in the present batch of cases. At the time when the earlier transfer petition was dismissed, conflicting judgments on subject in issue by different High Courts had not come.
Cap on the number of audits - HELD THAT:- There are conflicting judgments of different High Courts taking different views on the similar guidelines. Further, transferring the writ petition to one High Court i.e. Calcutta High Court does not preclude the consideration of prayer of the petitioner for transferring the writ petitions to this Court in present matter.
The guidelines which are impugned in the High Court and consequent disciplinary proceedings initiated against various chartered accountants throughout the country is an issue of public importance affecting Chartered Accountants as well as the citizens who have to obtain compulsory tax audits. Thus, to settle the law and to clear the uncertainty among tax professionals and citizens, it is appropriate that this Court may transfer the writ petition, to authoritatively pronounce the law on the subject.
Transfer Petitions are allowed.
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2021 (4) TMI 286 - SUPREME COURT
Smuggling - Heroin - sentence of 15 years R.I. with fine of ₹ 2 Lakhs and in default to undergo further one year R.I. - HELD THAT:- In the present case the appellant – original accused was found to be in possession of 1 kg heroin which is four times more than the minimum of commercial quantity. 250 gm and above of Narcotic substance/drug is a commercial quantity as per the NDPS Act. The minimum sentence provided under Section 21 of the Act is 10 years R.I. So far as the commercial quantity is concerned, it may be upto 20 years R.I. Therefore, the minimum sentence for commercial quantity shall not be less than 10 years, which may extend to 20 years with fine which shall not be less than ₹ 1 lakh but which may extend to ₹ 2 lakhs. Section 32B of the Act provides for factors to be taken into account for imposing higher than the minimum punishment.
While imposing a punishment higher than the minimum term of the imprisonment or an amount of fine, the Court may take into account the factors enumerated in Section 32B of the Act. However, it is required to be noted that Section 32B of the Act itself further provides that the Court may, in addition to such factors as it may deem fit, take into account the factors for imposing a punishment higher than the minimum term of imprisonment or amount of fine as mentioned in Section 32B of the Act. Therefore, while imposing the punishment higher than the minimum term of imprisonment or amount of fine, the Court may take into account such factors as it may deem fit and also the factors enumerated/mentioned in Section 32B of the Act. Therefore, on fair reading of Section 32B of the Act, it cannot be said that while imposing a punishment higher than the minimum term of imprisonment or amount of fine, the Court has to consider only those factors which are mentioned/enumerated in Section 32B of the Act.
In the present case the appellant - accused was found to be in possession of 1 kg heroin and he sold it to the informant. Therefore, he cannot be said to be a mere carrier. In given case, even a carrier who is having the knowledge that he is carrying with him narcotic substance/drugs and is found to be with huge commercial quantity of narcotic substance/drugs can be awarded the sentence higher than the minimum sentence provided under the Act - the accused was found to be in possession of 4 times higher than the minimum commercial quantity and therefore, the sentence imposed by the Learned Special Court imposing the sentence of 15 years R.I. with fine of ₹ 2 lakhs, confirmed by the High Court is not required to be interfered with by this Court. It cannot be said that while imposing such punishment the Court has taken into consideration any irrelevant factors.
Merely because the accused is a poor man and/or a carrier and/or is a sole bread earner cannot be such mitigating circumstances in favour of the accused while awarding the sentence/punishment in the case of NDPS Act - Appeal dismissed.
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2021 (4) TMI 285 - DELHI HIGH COURT
Dishonor of Cheque - accused failed to pay the cheque amount within 15 days of receipt of legal Demand Notice - enforceable outstanding debt/liability or not - complaint sufficient to proceed against the petitioner as contemplated under Sections 138 and 141 of Negotiable Instruments Act or not - continuation of the proceedings against the petitioner, who claims to be neither the signatory of the cheque nor the person in charge of the accused-company - HELD THAT:- The Hon’ble Supreme Court in N. RANGACHARI VERSUS BHARAT SANCHAR NIGAM LTD [2007 (4) TMI 621 - SUPREME COURT] has held that an advertence to Sections 138 and 141 of the Negotiable Instruments Act shows that on the other elements of an offence under Section 138 being satisfied, the burden is on the Board of Directors or the officers in charge of the affairs of the company to show that they are not liable to be convicted. Any restriction on their power or existence of any special circumstance that makes them not liable is something that is peculiarly within their knowledge and it is for them to establish at the trial such a restriction or to show that at the relevant time they were not in charge of the affairs of the Company.
Further, the Hon’ble Supreme Court in RAJESHBHAI MULJIBHAI PATEL AND OTHERS ETC. VERSUS STATE OF GUJARAT AND ANOTHER ETC. [2020 (2) TMI 412 - SUPREME COURT] has held that “When disputed questions of facts are involved which need to be adjudicated after the parties adduce evidence, the complaint under Section 138 of the N.I. Act ought not to have been quashed by the High Court by taking recourse to Section 482 Cr.P.C.”.
Whether petitioner’s employment with the accused-company was confined to maintenance of accounts or he was the Director or Authorized Signatory of accused-company and whether or not the cheque in question was signed by him or whether complainant is able to bring sufficient material before the court to rope in petitioner for the offence in question, are the aspects which can be established during trial, therefore, it would be against principles of law to arrive at a conclusion without going into the merits of the case - petition dismissed.
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