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Indian Laws - Case Laws
Showing 61 to 67 of 67 Records
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2021 (4) TMI 278 - GAUHATI HIGH COURT
Request for proposal (RFP) for selection of distributors for conventional paper and online lotteries - conversion of the distributorship from online lottery to paper lottery - HELD THAT:- Lottery includes gambling as anelement of chance which requires no skill and as held by the Apex court it would not attain the status of trade like other trades or become res commercium. Accordingly, the petitioner has no right to invoke Article 14 of the Constitution of India or under Article 19(1)(g) of the Constitution of India seeking for his protection of his fundamental right for carrying on trade and commerce of the State lotteries.
The petitioner is not entitled to objectand be heard by the respondent No. 1 while taking the impugned decision. The impugned decision dated 12.09.2018 does not in any manner injure the interest of the petitioner recognized by law. The inpugned decision was taken within the stipulated terms of the contract to which the petitioner is not a signatory - petition dismissed as not maintainable.
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2021 (4) TMI 186 - PUNJAB AND HARYANA HIGH COURT
Threat - Seeking issuance of directions to the official respondents for protection of life and liberty of the petitioners from the private respondents arrayed in the petition - HELD THAT:- Learned State counsel on instructions from ASI Amar Singh submits that the statements of the petitioners have been recorded by Deputy Superintendent of Police, Head Quarter, Ambala. It is stated therein that there is no threat perception.
No cause of action survives for pursuing with the present petition - Disposed of as infructuous.
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2021 (4) TMI 146 - TRIPURA HIGH COURT
Dishonor of Cheque - burden to prove - onus to rebut the statutory presumptions under Sections 138 and 139 of the N.I Act - service of notice - Existing debt or not - HELD THAT:- It is a settled proposition of law that mere issuance of a cheque and its dishonour would not constitute an offence by itself under Section 138 N.I Act, 1881 unless the basic elements of Section 138 and the eventualities mentioned in Clauses (a), (b) and (c) in the proviso to Section 138 of the N.I. Act, 1881 are satisfied.
With regard to the service of statutory notice, accused pleaded that she did not receive any such notice after the cheque issued by her was allegedly dishonoured. The complainant seems to have proved by adducing documentary evidence that he issued such notice (Exbt.4) within 15 days from the date of his receiving the information from the bank that the cheque was dishonoured for insufficiency of fund in the account of the accused.
Existing debt or not - HELD THAT:- Despite payment of loan the complainant did not give back her cheque which was later misutilized by the complainant and the present case was filed against her. In her cross examination also she said that she issued two cheques in favour of the complainant. In this regard, she could not produce any evidence at all. She could not recall the dates on which those cheques were issued. She also stated in her evidence that the blank cheques and the stamp paper given by her to the complainant were destroyed by the complainant in her presence. Therefore, question of using blank cheque against her is redundant. Moreover, though she denied to have issued the said cheque of the sum of ₹ 1,30,000/- to the complainant, she has categorically admitted in her cross examination that the signature appearing on cheque No. 028821 (Exbt.1) was her own signature.
The fact that after the cheque was dishonoured, complainant issued demand notice within the statutory period demanding the accused to pay the cheque amount is also proved. Having received no response from her, the accused filed the case under Section 138 N.I Act, 1881 in which accused was convicted and sentenced by the trial Court which was reversed in appeal by the Additional Sessions Judge.
The accused respondent is held guilty of offence punishable under Section 138, N.I. Act. She will pay ₹ 1,30,000/- as fine within a period of three months from today which will be paid to the complainant petitioner - criminal revision petition is allowed.
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2021 (4) TMI 36 - KERALA HIGH COURT
Dishonor of Cheque - legally enforceable liability - rebuttal of presumptions under Sections 118(a) and 139 of Negotiable Instruments Act - HELD THAT:- The execution of the cheque was admitted; similarly, he had failed to prove the plea of discharge and since it was contended that the cheque was issued as security; both the arguments were not acceptable to the court and the learned Magistrate proceeded to convict the 2 nd respondent as stated supra. Against that conviction, when appeal was preferred, the learned Sessions Judge reversed the finding on various reasons. According to him, it was a house deposit scheme, which had completed in the year 2005, and therefore, there is no possibility of issuing a cheque as claimed by the appellant on 22.01.2008 - The Sessions Judge also noticed inconsistency with regard to the date of issuance of the cheque between the testimony of PWs 1 and 2 and that on consideration of these aspects, the version of the 2 nd respondent was accepted and thus the finding of conviction was reversed.
The appellant is a co-operative society, which is guided by the provisions of the Co-operative Societies Act. In no stretch of imagination it could be thought, nor it was suggested that a document was fabricated by the officials of the society for the purpose of deceiving one of its own members for getting enrichment of the society. In fact, that itself is the strength of the prosecution case - there is no serious dispute with regard to the execution of the Ext.P3 cheque. Both PWs 1 and 2 have stated that the instrument was issued after the 2 nd respondent had defaulted monthly repayments and amounts had fallen in lump towards repayment of monthly instalments due to the society. Then the 2nd respondent reached the society and handed over the Ext.P3 cheque, which version cannot be ignored. The Ext.P2 document reveals that he had received an amount of ₹ 18,500/- in the scheme on 05.03.2005. The consideration shown in Ext.P3 is the amount outstanding, together with interest accrued. This fact cannot be eschewed for the mere reason that the statement of accounts was not produced by the appellant.
The appellant has proved the case beyond doubt, which entitles him to draw the presumptions under Sections 118 and 139 of the Act. The 2nd respondent did not even respond to the lawyer notice. It is true that no adverse inference can be drawn against the 2nd respondent for not sending the reply or not having mounted the box. The presumptions can be rebutted by him through other means also. But here, he has not rebutted the presumptions, nor taken any legally tenable contention to displace the presumptions available in favour of the appellant and that enables the appellant to get an order in his favour - Appeal allowed.
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2021 (4) TMI 34 - KERALA HIGH COURT
Dishonor of Cheque - rebuttal of presumption - offence punishable under Section 138 of the Negotiable Instruments Act - whether the first respondent could rebut the presumption? - HELD THAT:- After revisiting the evidence, the answer should be in negative. From the very outset, she had been taking a negative attitude. Even though the lawyer notice was tendered in her correct address, she refused to receive the same. It is a matter of adverse inference. Her first expression of the transaction had come up when the power of attorney holder, PW1 was cross examined. Then she took the stand that the document was given in consideration of ₹ 20,000/-, borrowed by her, that the said amount has already been repaid - The case of PW1 is that the appellant had lent the amount to the first respondent on his assurance. Whatever it may be, once the signature in Ext.P1 stands admitted, it is for her to rebut the presumptions; that has not been attempted.
It is trite that the burden of proving a plea of discharge is on the person who raises the contention. Particulars of such repayment are lacking. It also does not stand the reason that, in spite of repaying the amount, she had not taken steps to get back the document alleged to have given as security - The learned counsel for the first respondent argued that the appellant is a fictitious person, such a person is not available and everything was stage managed by PW1. It is true that the first respondent has taken such a plea. But when she was examined as DW1, at the beginning stage itself she has stated that she knew the complainant. After taking such a stand in her chief examination, she cannot be heard to take a contention challenging the identity of complainant.
Ext.P1 cheque can be found to be issued in discharge of a legally enforceable liability as seen on its face value. The presumptions available in favour of the complainant are not rebutted. That would attract the offence under Section 138 of the Act. That means the finding of the lower appellate court acquitting the first respondent cannot be sustained - Appeal allowed - decided in favor of appellant.
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2021 (4) TMI 33 - ALLAHABAD HIGH COURT
Dishonor of Cheque - Constitutional Validity of Appointment of the retired District & Sessions Judge by the impugned Government Orders as Additional Court - section 138 read with Section 141 of Negotiable Instruments Act, 1881 - HELD THAT:- The Law Commission had taken note of the experience of the judicial post for the purpose of appointment and conferment of power of Special Judicial Magistrates with the object of securing the expeditious disposal of criminal cases. The Joint Select Committee also took note of the criticisms against the system of Honorary Magistrates and expressed the view that proper way to deal with the arrears of petty criminal cases was to appoint sufficient number of stipendiary Magistrates as a wholesome deletion of the institution of Honorary Members would give rise to problems in some States. The Joint Select Committee suggested that provision be made for the appointment of Special Judicial Magistrates with certain modifications in the earlier system. One of the suggestions was that the appointees should either be persons in Government service or those who have retired from Government service. As a result of these deliberations, Section 13 of the Code of Criminal Procedure, 1973 came to be enacted in their present form.
The Hon'ble High Court, vide order dated 19.08.2015, requested the State Government to intimate the cadre of the proposed 38 temporary additional Courts to be created in the State of U.P. to be manned by retired judges and contractual staff for disposing off such cases which constitute the majority of pendency i.e. motor vehicle challans, insurance claims and check bouncing matters, to the Court - Pursuant to the aforesaid letters of the High Court, the State Government, vide letter dated 16.10.2015, requested to the Hon'ble High Court that looking to the nature of the cases, decision with regard to the appointment of the Presiding Officer and staff be taken at the end of Hon'ble High Court.
There are no warrant for placing a narrow construction on the words 'who holds or has held any post under the Government' to confine them to appointments of Government servants, present or past only, and to exclude members belonging to the subordinate Judicial Services. Furthermore, the duration of appointment has been restricted to one year at a time which would give the High Court an opportunity to observe the work of the appointee to enable it to decide whether or not to extend the appointment for a further period, if the workload justifies such continuance. We are, therefore, of the opinion that there is no error in the impugned Government Orders appointing the retired District & Sessions Jude in temporary Additional Court to try the cases of motor vehicle challans, insurance claims and cheque bouncing matters.
A bare reading of the aforesaid Section 142 of the Negotiable Instruments Act reveals that it governs taking of cognizance of the offence and starts with a non-obstante clause - the Judicial Officers, who have been appointed on 38 posts of Additional Courts created under the recommendation of 14th Finance Commission, are retired Judicial Officers belonging to U.P. Higher Judicial Services cadre and is superior to the Court of Judicial Magistrate of First Class, hence the claim of the petitioners being inferior Court than one prescribed under Section 142 of the Negotiable Instruments Act or not empowered under Section 13 of the Code of Criminal Procedure, 1973 does not arise as these Officers are the judicial officers of higher cadre.
The instant writ petition is devoid of merit, which is liable to be dismissed - Petition dismissed.
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2021 (4) TMI 30 - ALLAHABAD HIGH COURT
Dishonor of Cheque - insufficiency of funds - compounding of offence under Negotiable Instruments Act - HELD THAT:- The law regarding compounding of offence under Negotiable Instruments Act is no more res integra and the offences under the said Act can be compounded at any stage of the proceedings.
The Hon'ble Supreme Court in the case of K. M. Ibrahim vs. K.P. Mohammad and another [2009 (12) TMI 903 - SUPREME COURT] where it was held that Section 147 of the aforesaid Act does not bar the parties from compounding an offence under Section 138 even at the appellate stage of the proceedings.
Taking into account the fact that the parties have agreed to end the proceedings by way of compromise and the opposite party no.2 has already received the amount of cheque along with interest/ cost and he does not want to pursue the proceedings against the revisionist, this Court deems it appropriate to compound the offence on the basis of compromise deed dated 10.11.2020 entered into between the parties - in case the revisionist deposits 15% of the cheque amount to the High Court Legal Services Committee, Allahabad within the stipulated period, the judgment and sentence dated 06.09.2018 passed by the trial Court duly confirmed by the appellate court vide judgment dated 01.02.2020, is set aside.
Revision allowed.
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