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Indian Laws - Case Laws
Showing 21 to 40 of 63 Records
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2021 (7) TMI 1271
Jurisdiction of respondent no. 2 to issue a show cause notice - termination of proceedings awaiting the final order - HELD THAT:- The point of Jurisdiction need not be examined at this stage, since the final order on the proceedings is awaited.
The interest of justice would be sufficiently served if the petitioner is granted liberty to file an application before the respondent no. 2, to urge before such respondent that in view of the ratio of the decision in M/S CANON INDIA PRIVATE LIMITED VERSUS COMMISSIONER OF CUSTOMS [2021 (3) TMI 384 - SUPREME COURT] the proceedings cannot be carried further. If such an application is made, the respondent no. 2 will proceed to decide the same in accordance with law either by a preliminary order or by the final order in the proceedings.
The writ petition stands disposed of, without costs.
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2021 (7) TMI 1269
Seeking grant of anticipatory bail - petitioner contends that the petitioner was not in office when the incident took place but be that as it may, a charge sheet has been filed and he joined investigation but was not arrested and then there was no need to arrest him now - HELD THAT:- We put to learned senior counsel for the petitioner as to why the petitioner did not appear after summons were sent in pursuance to cognizance being taken as logically, the petitioner ought to have appeared and applied for regular bail and there should have been no case for anticipatory bail at that stage.
Let notice issue returnable on 18.08.2021
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2021 (7) TMI 1268
Grant of Anticipatory Bail - Bribe - huge amount was due towards the P.F. Fund of the Employees which had not been deposited by the complainant - applicant was posted as Assistant Provident Fund Commissioner at Regional Office EPFO, Noida - HELD THAT:- Perusal of the record shows that after investigation, charge-sheet has been submitted in the matter on 12.10.2020. Cognizance has also been taken. Applicant has not appeared before the court concerned. Process of bailable and non-bailable warrant were issued on different dates against the applicant. Inspite of this, he did not appear. Although co-accused Narendra Kumar and Brijesh Ranjan have been allowed on regular bail, yet keeping in view the conduct of the applicant and process going on against the applicant, the Court is of the opinion that it is not a fit case for anticipatory bail particularly when applicant was posted as Assistant Provident Fund Commissioner in the concerned Office and allegation of bribe amounting to ₹ 9 lacs was being raised in the matter and same amount has also been recovered from the possession of the co-accused.
The anticipatory bail application is rejected.
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2021 (7) TMI 1207
Smuggling - phensedyl codeine cough syrup 100 ml bottle - main argument raised by the Ld. counsel for the petitioner is that there is infirmity in drawing of the samples and the proper procedure has not been followed by the NCB (respondent) at the stage of drawing the samples - HELD THAT:- In the instant case, as per the prosecution 200 bottles of phensedyl codeine cough syrup were recovered. The seized bottles were of the same size and were having batch numbers on them i.e. batch No. PHB7217 & PHB7236. Therefore, in these circumstances, since these were cough syrup bottles which are ordinarily available in the market for treating cold and cough, cannot be said to have different concentration of medicines as they are prepared under the same formulation as per their batch numbers. Therefore, there is no infirmity in the manner in which the sample has been drawn. As far as the non compliance of mandatory provisions of Section 50 of the NDPS Act is concerned, the same is a matter of trial.
The application lacks merits and the same is, therefore dismissed.
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2021 (7) TMI 1202
Dishonor of Cheque - Fraudulent transaction or not - existing debt or advance payment - presumption available under Section 139 of the N.I.Act - no reply to the notice has been given - whether the cheque represents discharge of existing enforceable debt or liability or whether it represents advance payment without there being subsisting debt or liability? - Section 138 of the Negotiable Instruments Act, 1881.
HELD THAT:- While approving the views of different High Courts noted earlier, this is the underlying principle as can be discerned from discussion of the said cases in the judgment of this Court. In M/S. BALAJI SEAFOODS EXPORTS VERSUS MAC INDUSTRIES LTD. [1998 (10) TMI 528 - MADRAS HIGH COURT], the Madras High Court noted that the cheque was not handed over with the intention of discharging the subsisting liability or debt. There is, thus, no similarity in the facts of that case simply because in that case also, loan was advanced. It was noticed specifically therein – as was the admitted case of the parties – that the cheque was issued as “security” for the advance and was not intended to be in discharge of the liability, as in the present case.
The Court notices that there is no disputes with regard to the signature on the cheuqe and her defence is that the brother-in-law had obtained her signature under the pretext that for emergency purpose this would be required for the use of the cheque in the business. There is an initial admission of the cheque, the presumption under Section 139 of the N.I.Act would come into play. It is also not out of place to make a mention that there is no reply to the notice issued by the complainant. With the elements referred to under the N.I.Act existing on record, it is for the trial Court thereafter to appreciate at an appropriate stage as to whether the defence put forth by the accused are worth accepting and would lead to the stage where this rebuttal can be said to have succeeded.
The present complainant is a friend of the brother in law, who has misused such cheque - Private complaint appears to have been filed before the Court of learned Judicial Magistrate First Class, Indore, which has been dismissed. The allegation with regard to the disconnection of the electricity connection permanently from 10.01.2006, the closure of the factory at Sector 21-B and the account being dormant so also, the non-filling of Form No.49 or stamping of the invoice needed under the VAT are some of the issues which are inter connected and require the appreciation at the end of the adducement of the evidence.
The petition is dismissed without further elaboration so as to ensure that rights of the either side may not be prejudiced. Interim relief stands vacated.
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2021 (7) TMI 1156
Termination of dealership - breach of Clause 45 (d) of dealership agreement - Co- operative Society appointed as dealer, involved in a criminal offence or not - petitioner was convicted under Section 138 of Negotiable Instruments Act, 1881, for dishonor of cheque - heinous case or case involving moral turpitude or otherwise? - HELD THAT:- Apex Court in the case of P. MOHANRAJ & ORS. VERSUS M/S. SHAH BROTHERS ISPAT PVT. LTD. [2021 (3) TMI 94 - SUPREME COURT] has reiterated that proceedings under Negotiable Instruments Act are basically civil in nature having criminal colour. Apex Court has defined the proceedings aptly as "civil sheep in a criminal wolf's clothing" and has reiterated the law laid down - Similarly, in M/S. METERS AND INSTRUMENTS PRIVATE LIMITED & ANR. VERSUS KANCHAN MEHTA [2017 (10) TMI 218 - SUPREME COURT], it has been held that nature of offences under Section 138 of Negotiable Instruments Act is primarily a civil law and 2002 amendment specifically made it compoundable.
Thus, it is clear that proceedings under Section 138 of Negotiable Instruments Act are civil in nature with criminal overtones - impugned order is quashed - respondent is directed to allow petitioner to run the Petroleum outlet allotted to him vide agreement dated 1.8.2008 - petition allowed.
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2021 (7) TMI 1154
Dishonor of Cheque - Trial Court awarded punishment in the form of imprisonment for the said offence - dispute is amicably settled with the respondent no.2-complainant, with regard to the offence, after the order of conviction is passed - complainant filed an affidavit interalia stating that if the order of conviction passed against the applicants is quashed and set aside, he has no objection - compounding of offences - HELD THAT:- This Court, in the case of Khokhar Iliyas Bismilla Khan Vs. State of Gujarat & Anr. [2021 (6) TMI 868 - GUJARAT HIGH COURT] , had an occasion to deal with a similar issue which is involved in the present matter, where it was held that Taking into account the fact that the parties have settled the dispute amicably, in view of this court the compounding of the offence is required to be permitted.
Thus, when the parties have settled the dispute amicably, compounding of the offence is required to be permitted - However at this stage, it is required to be noted that the respondent no.2 has filed a complaint under Section 138 of the N.I. Act for dishonour of cheque amounting to ₹ 1,43,606/- and, hence as per the decision rendered by the Hon'ble Supreme Court, suitable amount i.e 15% of ₹ 1,43,606/- is required to be deposited by the applicants with the Gujarat State Legal Services Authority.
Application allowed.
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2021 (7) TMI 1149
Dishonor of Cheque - chque was signed by the Husband (who was not the joint holder) - allegation is that ingredients as contemplated in Section 138 of the Negotiable Instruments Act having not been fulfilled - debt or liability on the part of the drawer of the cheque or not - Section 138 of the Negotiable Instruments Act - HELD THAT:- It is evident that to take action against non-payment of any cheque amount due to its return by the bank as unpaid, there should exist any debt or liability on the part of the drawer of the cheque and the recipient of the cheque. In the present case, it is the admitted stand of the parties that there was no debt or liability on the part of the petitioner to the complainant. Therefore, mere issuance of cheque belonging to the petitioner would not suffice to attract Section 138 of the Negotiable Instruments Act in the absence of the other ingredients of the said section being fulfilled.
Further, it is to be pointed out that it is the admitted case of the defacto complainant that the bank account belongs to the petitioner. However, the cheque has been drawn by the husband of the petitioner. It is not the case of the defacto complainant that the account is a joint account. In that backdrop, a perusal of the cheque reveals that the cheque has been signed by P.Ramachandran and P.Rajeswari does not seem to be the signatory to the cheque. In such a scenario, taking action on the petitioner, who is merely the account holder, but who has not issued the cheque, would be wholly impermissible.
This Court is of the considered view that the present complaint against the petitioner is legally untenable and the cognizance of the said complaint taken by the Magistrate leading to the registration of the case deserves to be interfered with - petition allowed.
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2021 (7) TMI 1041
Dishonor of Cheque - non-CTS-2010 cheque - valid cheque or not - scope of four corners of Section 138 of the Negotiable Instruments Act - Scope of circular issued by Reserve Bank of India dated 18.3.13 - time limitation - HELD THAT:- The circular issued by Reserve Bank of India dated 18.3.13, which has been pressed into service to put forth the contention that the non-CTS-2010 cheque is an invalid cheque, however, clause (c) of the circular issued by Reserve Bank of India provides that all residual non-CTS-2010 cheques with customers will continue to be valid and accepted in clearing houses (including the Cheque Truncation System (CTS) Centres) for another four months up to July 31, 2013, subject to a review in June, 2013. From the said clause it is evident that validity is given till 31.7.2013, which is subject to review. However, no material is placed on record to show the actual decision taken by the Reserve Bank of India as to the validity of the cheques, which are non-CTS-2010 complaint.
The petitioners are bound to establish the validity or otherwise of the cheque by adducing oral and documentary evidence during trial and at this point of time, it would not be prudent for this Court to render one finding or the other as to the validity of the cheque, in the absence of any substantial material voicing any particular view with regard to the same - the circular of the Reserve Bank of India shows that the banking channels, based on the digital signature in the form of Magnetic Ink Character Recognition (MICR), would be in a position to distinguish a non-CTS-2010 cheque from a CTS-2010 cheque. The Court, appreciating an issue u/s. 482 of the Code of Criminal Procedure, would not be justified in giving a decision one way or the other as to the nature of the cheque, which is put in issue by the parties as the same has to be established only at the time of trial by adducing oral and documentary evidence.
In the present petition u/s. 482 Cr.P.C., no material with regard to the cheque being given as security or the business arrangement between the petitioners and the respondent is placed - deciding on the nature of the cheque, being a non-CTS-2010 cheque, according to the petitioners, would not be justified.
This Court is of the considered view that the petition at the behest of the petitioners 1 and 2 for quashing the charge sheet cannot be permitted and, accordingly, it deserves to be rejected - the criminal original petition is allowed in part.
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2021 (7) TMI 1040
Dishonor of Cheque - suit barred by limitation or not - denial of execution of pronote - suit is filed only after 8 years from the date of execution of the pronote - time limitation in case post dated cheque issued - HELD THAT:- The cheques dated 28.04.2008 and 28.04.2009 were not presented for collection and both cheques had lost their validity. Insofar as the cheque dated 28.04.2011 is concerned, the complaint was lodged and referred before Lok Adalat. The last payment made by the defendant on 21.09.2012 and it was duly recorded and the complaint was closed by an order dated 21.09.2012 which was marked as Ex. A8 - Insofar as the receipt of ₹ 10,00,000/-, the execution of pronote and the issuance of cheques are concerned, the defendant, during his cross examination, categorically admitted that the plaintiff entrusted a sum of ₹ 10,00,000/- for investment and towards the repayment of the said amount, the defendant issued four post dated cheques to the plaintiff, in which, three cheques were marked as Ex. A2, Ex. A3 and Ex. A4. He also categorically admitted the signature found in the pronote, which was marked as Ex. A1. Therefore, after entrustment of ₹ 10,00,000/-, on demand, the defendant executed the pronote on 28.03.2007 and on the same day, he also issued four cheques towards the repayment of ₹ 10,00,000/-.
According to Section 19 of the Indian Limitation Act, when the defendant made payment on account of the cheque before the expiration of prescribed period, a fresh period of limitation shall be computed from the time when the payment was made. Therefore, it is clear that when the defendant issued four post dated cheques and thereby acknowledged the amount due to the plaintiff. The Limitation starts from the date of instrument irrespective of the fact that the defendant issued four post dated cheques. The last payment was made by the defendant on 21.09.2012 and the suit was filed on 03.09.2015 - Therefore, it is well within the time and the Court below rightly decreed the suit.
The Trial Court directed to defendant to pay a sum of ₹ 5,00,000/- with interest at the rate of 9% per annum from the date of pronote till the date of realization - this Court finds no merits in this Appeal Suit - Appeal suit is dismissed.
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2021 (7) TMI 1035
Dishonor of Cheque - condonation of delay in filing the complaint - trial court failed to grant extension, inspite of being allowed by suo moto petition - HELD THAT:- Even though the trial Court referred the averments made in the complaint, the sworn statement and documents marked on behalf of the complainant, it has not given its consideration to the dates of events which are mentioned above before condoning the delay in presenting the complaint. It is settled position of law that there must be application of mind before taking cognizance of the offence by the Court when there are several dates of events as mentioned - The impugned order does not speak that the Court has taken the said events into consideration before proceeding to pass the impugned order.
The matter remanded for fresh consideration by the trial Court keeping in mind the various dates of events mentioned in the complaint in the light of the order passed by the Hon'ble Apex Court in the suo motu writ petition - petition allowed.
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2021 (7) TMI 956
Dishonor of Cheque - supply of information about the location of the original case records - it was submitted that while the impugned order was passed, the facts with regard to the trial of the case under Section 138 of the NI Act was not taken into consideration by the writ Court as the complaint was initially instituted before the learned Chief Judicial Magistrate, Paschim Medinipur - HELD THAT:- The order substantially has been passed in favour of the petitioner/appellant to take appropriate steps with regard to the case records pending with the learned Judicial Magistrate, Alipore as it appears that the case records is pending for inquiry and trial before the learned Judicial Magistrate, 2nd Court at Alipore.
The report of the learned Chief Judicial Magistrate was communicated to the registry through District Judge, South 24 Parganas which reflects that the case record is pending for disposal before the learned Judicial Magistrate, 2nd Court at Alipore and is physically lying at the said Court. But the petitioner has not appeared before the learned Judicial Magistrate, 2nd Court at Alipore, although, substantially the order directing the petitioner/appellant herein was to take proper steps in the case before the Court concerned - a complaint case under Section 138 of the NI Act pending before the Magistrate ought to have been disposed of speedily in a summary manner in the letter and spirit of provision under Section 143 NI Act which provides for Power of Court to try cases summarily but the case could not be disposed of due to the transfer and retransfer of the case from the Court of CJM, Medinipur to the Court of CJM, Alipore due to solemn direction passed by the Hon’ble Supreme Court.
It is settled proposition of law regarding territorial jurisdiction of the Courts in case of dishonor of cheque which has completely been changed with the new amendments by the Negotiable Instrument (Amendment) Act, 2015 which retrospectively came into force on and from 15th July, 2015 - the learned trial Court being the Judicial Magistrate, 2nd Court at Alipore are directed to take steps for disposal of the complaint case No. C-4392 of 2016 as expeditiously as possible preferably with six months from the date of communication of this order.
Appeal disposed off.
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2021 (7) TMI 847
Dishonor of Cheque - service of legal notice - presentation of cheque second time - bouncing of cheques on the ground that the same were not-acceptable to the bank on account of its being non- MICR - applicability of prosecution under Section 138 of Negotiable Instruments Act, 1881 - HELD THAT:- Admittedly the second bouncing of cheques was not on account of any insufficiency of fund in the bank, nor the same was on account of any act of stop payment etc. from the side of the petitioner. Thus, by the time the second presentation of cheques was made in the bank, the same had become not acceptable by the bank on account of being non-MICR cheques. Accordingly, the petitioner had no role to play in return of cheques upon second presentation, but the same were not acceptable by the bank itself on account of technical reasons. As per proviso (a) of section 138 of the Negotiable Instrument Act, 1881, the cheque has to be presented within six months from the date it is drawn or within the period of its validity, whichever is earlier - the said bouncing of cheques on second presentation cannot be a ground for prosecution under Section 138 of the Negotiable Instruments Act, 1881 as one of the conditions precedent for prosecution i.e the cheque itself should be valid on the date of its presentation, is not satisfied when the cheques are returned as not acceptable to the bank on account of being non-MICR cheques.
Whether the cheques bounced upon their first presentation on 11.06.2007 on account of insufficiency of funds can still be taken as a trigger point for constituting offence under Section 138 of Negotiable Instruments Act, 1881? - HELD THAT:- In the instant case, the legal notice was sent on 24.07.2007. Accordingly, if the first dishonour is taken into consideration, the dispatch of legal notice regarding bouncing of cheques, is beyond the time period of 30 days as prescribed under proviso (b) to Section 138 of Negotiable Instruments Act, 1881. Thus, the first bouncing of cheques when read with the date of dispatch of legal notice, also does not help the complainant in any manner whatsoever as one of the conditions precedent as prescribed under proviso (b) to Section 138 of Negotiable Instruments Act, 1881, will still remain unsatisfied.
Whether the dispatch of demand notice under certificate of posting can be said to a valid mode of service under the provisions of Section 138 of Negotiable Instruments Act, 1881? - HELD THAT:- In the instant case, admittedly, there is no service report regarding service of demand notice upon the petitioner and what is on record is only the dispatch proof under certificate of posting - This court finds that the learned trial court has not at all given any finding regarding service of demand notice upon the petitioner said to have been dispatched under certificate of posting and the petitioner has been convicted by holding that the case was filed within a period of 30 days after arising of cause of action which is after 15 days from the dispatch/service of notice. Before the appellate court, a plea was raised by the defence that the demand notice was incorrectly addressed and there was non-service of demand notice but the said plea was rejected by recording that the complainant was thoroughly cross examined and there were no material contradiction in his evidence, who was the sole witness of the case - Admittedly, there is no service report regarding service of the demand notice. This Court also finds that there is no material circumstance on record to show service of demand notice, much less any particular date of service of demand notice upon the petitioner.
Both the learned courts below have failed to consider that there was no evidence regarding service of demand notice to the petitioner sent under certificate of posting. This court is of the considered view that no presumption in connection with such demand notice under Section 138 of Negotiable Instruments Act, 1881 sent through certificate of posting can be drawn unless it is coupled with other facts and circumstances which go to show that the party had notice. This Court is of the considered view that presumption of deemed service of notice only by virtue of the same having been sent through registered post/speed post can be drawn by virtue of the provisions of Section 27 of the General Clauses Act which specifically refers to registered post but has no reference to letters sent under certificate of posting.
Admittedly there is no service report of legal notice in the present case which was sent under certificate of posting and not by registered post. Even if it is assumed for the sake of arguments that legal notice sent under certificate of posting would draw a presumption of deemed service, though under section 27 of the General Clauses Act, 1887 the question of presumption of service of letter arises only when it is sent under registered post, then also the complaint case filed by the complainant in the instant case is pre-mature when considered in the light of the time-lines prescribed under Section 138 of Negotiable Instruments Act, 1881 - the condition precedent for filing the case under Section 138 of the Negotiable Instruments Act, 1881, having not been satisfied, the complaint itself was not maintainable on the day it was filed and accordingly, the petitioner could not have been convicted under the said Section. The question of any presumption regarding existing debt under Section 139 of the Negotiable Instruments Act, 1881 also could not arise as the complaint itself was not maintainable.
The impugned judgements of conviction of the petitioner under Section 138 of Negotiable Instruments Act, 1881 suffer from patent illegality and ignoring the mandatory provisions of Section 138 of Negotiable Instruments Act, 1881 with regards to the cause of action as fully discussed above, which calls for interference under revisional jurisdiction of this court.
The present revision petition is hereby allowed. The impugned judgements and sentence passed by the learned courts below are hereby set aside.
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2021 (7) TMI 845
Dishonor of Cheque - it is claimed that cheque issued by way of security and not against any legally payable debt - evidences produced or not - burden to prove - principles of natural justice - HELD THAT:- Admittedly, the petitioner did not even lead any defence evidence in spite of grant of opportunity by the learned court below and none of the witnesses whose name appeared as witnesses on Exhibit-A deposed before the court to explain the circumstances under which it was issued. On the other hand, the P.W. 2 is the eye-witness of the entire transaction and has explained the circumstances under which the cheque was issued by the petitioner to the complainant and has fully supported the prosecution case - From the records of the case, it appears that the P.W. 2 clearly deposed that cash of ₹ 1,00,000/- was handed over to the petitioner by the complainant in his presence and the petitioner had issued the cheque in lieu of the same.
This Court finds that although the learned appellate court has held that no reliance could be placed on Exhibit-A by the petitioner, but the learned trial court has fully considered the contents of Exhibit-A and found that the same could not help the petitioner in any manner. This Court finds that the petitioner has failed to discharge his initial burden to prove that the cheque was not issued in discharge of any liability and the petitioner could not discharge the said burden even by referring to Exhibit-A.
This Court is of the considered view that the basic ingredients for offence under Section 138 of Negotiable Instruments Act, 1881 were duly satisfied and the learned court below has not committed any error in rejecting the plea of the petitioner based on exhibit-A - criminal revision petition is dismissed.
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2021 (7) TMI 837
Maintainability of this criminal miscellaneous petition - exercise of inherent jurisdiction by this Court under Section 482 Cr.P.C. - Matter compromised between parties - HELD THAT:- It is well established and recognised practice that against appellate order confirming the judgment of conviction, the revision petition lies under Section 397 read with Section 401 Cr.P.C. - this Court will not entertain a petition under Section 482 Cr.P.C. where the petitioner has other remedy available under the Code except under exceptional circumstances.
After considering earlier judgments of the Hon'ble Supreme Court of India in the case of Madhu Limaye vs. State of Maharashtra [1977 (10) TMI 111 - SUPREME COURT], the Court proceeded to hold that there can be no total ban on the exercise of extraordinary jurisdiction conferred on a High Court under Section 482 Cr.P.C. if such exercise of power is necessary to give effect to any order under this Code or to prevent the abuse of process of the Court or otherwise to secure the ends of justice - In the present case, no such exceptional circumstance exists which could warrant exercise of inherent jurisdiction by this Court under Section 482 Cr.P.C. instead of relegating the petitioner to invoke the well established regular mode of challenge to the judgment of conviction affirmed in appeal, by way of revision petition. The only exceptional circumstance, pointed out by the learned counsel for the petitioner to invoke the extraordinary jurisdiction of this Court under Section 482 Cr.P.C. instead of revisional jurisdiction is that the matter has been compromised between the parties. It is trite that cognizance of the factum of settlement of dispute between the parties by way of compromise, can be taken by this Court in its revisional jurisdictional also and appropriate order can be passed.
Therefore, mere settlement of dispute by way of compromise between the parties, cannot be reckoned as such exceptional circumstance under which this Court can exercise its inherent and extraordinary jurisdiction vide Section 482 Cr.P.C. against the order of conviction affirmed in appeal in view of availability of regular remedy of revision petition inasmuch as the factum of compromise can be taken into consideration by this Court under its revisional jurisdiction also.
This criminal misc. petition is dismissed being not maintainable.
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2021 (7) TMI 821
Dishonor of Cheque - service of notice - legally enforceable debt or not - rebuttal of presumption - complainant claims to have sent the legal notice to the accused, but the same was not served upon petitioner - complainant's main grievance is against the Trust - the accused alone was alleged to be the only active Trustee in the said Trust.
Service of notice - HELD THAT:- The address of the accused shown in her vakalath in the Trial Court, the cause title in the complaint filed by the complainant before the said Court, and in the memorandum of the criminal appeal before the Sessions Judge's Court and also in the present Criminal Revision Petition before this Court are all the same address, as such, it is established that the complainant issued the notice to the correct address of the accused. The said notice was also tendered at the said address of the addressee. Therefore, the accused now cannot contend that there was no notice issued to her - As such, the contention of the learned counsel for the petitioner/accused that, no statutory notice was issued by the complainant to the accused, is not acceptable.
Legally enforceable debt towards the complainant - rebuttal of presumption - HELD THAT:- Admittedly, the said cheque has been returned when presented for its realisation for the reason of insufficiency of funds, after which, a legal notice was issued by the complainant to the accused, demanding the payment of the cheque amount. Admittedly, the cheque amount has not been paid by the accused to the complainant till date. Thus, a presumption about the legally enforceable debt forms in favour of the complainant. However, the said presumption is rebuttable - when the cheque is issued from the personal account by the accused, drawn in favour of the complainant and when the complainant has denied that the accused was not liable to her under the said cheque and also denied the fact that the accused had left the Trust on 05-04-2011 itself, the burden of establishing that, there existed no legally enforceable debt towards the complainant would be upon the accused. However, it is sufficient for the accused to make out a case on preponderance of probabilities in her favour and that she need not have to prove the same beyond reasonable doubts.
Even though the complainant's main grievance is against the Trust, but according to the complainant, the accused alone was the only active Trustee in the said Trust and that the cheque in question was also given to her by the accused herself, holding herself as the sole responsible person. The said statement made by PW-1 in her examination-in-chief has not been specifically denied or disputed from the accused's side - both the Trial Court as well the Sessions Judge's Court, analysing these aspects have held the accused guilty of the alleged offence punishable under Section 138 of the N.I. Act.
Since both the Trial Court as well as the learned Session's Judge's Court, have after properly appreciating the evidence placed before them, rightly held the accused guilty for the alleged offence and have ordered sentence proportionate to the gravity of the proven guilt, there are no perversity or illegality in it, warranting interference at the hands of this Court.
Criminal Revision Petition stands dismissed
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2021 (7) TMI 819
Dishonor of Cheque - Complaint was dismissed hold that, complainant failed to prove the guilt of the accused beyond reasonable doubt - rebuttal of presumption - cheque got executed by exercising force - quantum of amount lent also in dispute - accused has not chosen to step into the witness box to depose regarding his contention - HELD THAT:- It is the settled proposition of law that when the complainant is successful in proving issuance of cheque and its dishonour, unless the accused repays the cheque amount, the offence under Section 138 of N.I. Act is complete and the presumption under Section 139 of N.I. Act arises.
In Rangappa v. Sri. Mohan [2010 (5) TMI 391 - SUPREME COURT], the Full Bench of the Hon'ble Apex Court considered its earlier verdict in Krishna Janardhan Bhat v. Dattatraya G. Hegde [2008 (1) TMI 827 - SUPREME COURT] and categorically held that the presumption under Section 139 of the N.I. Act does indeed include the existence of the legally enforceable debt or liability.
Thus, it is clear that presumption under Section 139 of N.I. Act includes the existence of legally enforceable debt or liability and it is for the accused to rebut the same.
In the present case, as the accused has categorically admitted issuance of the cheque-Ex. P.1. He took a specific defence that the cheque in question was obtained by the complainant by exercising force and that the same was a blank cheque. The complainant misused the blank cheque and filed a false complaint. Even though a specific defence is taken by the accused, he has not probabilised the same. When the accused admits issuance of the cheque in favour of the complainant, the presumption under Section 139 of N.I. Act arises and unless the accused rebuts the presumption, he is liable for conviction.
The impugned judgment of acquittal passed by the trial Court deserves to be set aside - criminal appeal allowed.
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2021 (7) TMI 818
Dishonor of Cheque - issuance of non-bailable warrant - validity of proceedings under Section 482 Cr.P.C. - HELD THAT:- After coming to know that the non-bailable warrant has been issued this is a clear device of challenging the entire proceedings under Section 482 Cr.P.C. It is not known if the police has already arrested the accused as the warrants were issued long back before one year. The summoning order is dated 29.04.2019 which means that for a period of two years the respondents have not appeared before the learned Magistrate.
Prima facie ingredients of the offence are made out from the papers on record. On the touchstone of the decision of the Apex Court and in a recent decision of High Court of Gujarat in case of A. H. Patel vs. State of Gujarat reported in [2013 (3) TMI 861 - GUJARAT HIGH COURT] as the facts are similar to this case the said decision and the parameters fixed in the recent decision has holding that if the relevant aspects deserves to be investigated, the same cannot be circumvented under Section 482 of the Code - It is held that High Court should be loath in exercise of jurisdiction under Section 482 of Code to enter into the process of determining the veracity of complaint.
The Apex Court in case of Rajiv Thapar vs. Madan Lal Kapoor [2013 (1) TMI 932 - SUPREME COURT] where it was held that the powers vested in the High Court under Section 482 of the Code, when exercised, have far reaching consequences, most important being the consequence that it would negate the prosecution's/ complainant's case without allowing the prosecution/ complainant to lead evidence and that, therefore, the exercise of the said powers should be with utmost caution, care and circumspection.
This is a case which cannot be said to be one where extraordinary power require to be exercised as basic ingredients of the alleged offences are there - petition is devoid of merits and is dismissed.
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2021 (7) TMI 739
Dishonor of Cheque - funds insufficient - presumption about the existence of legally enforceable debt - rebuttal presumption or not - preponderance of probability - material contradictions in the case of the complainant - HELD THAT:- The complainant in his complaint, as well in his examination-in-chief as PW-1 has stated that the loan was given by him to the accused in the month of July 2012. He has not given any specific day of the month as to the date on which the alleged loan was given. The month is also stated to be July of the year 2012. However, the very same witness in his cross-examination has stated that he lent the money to the accused on 06.08.2012. That means, the complainant was clearly aware the exact date on which the loan is said to have been given by him to the accused. However, for the reasons best known to him, neither in his complaint nor in his evidence as PW-1 in his examination-in-chief has mentioned the exact date of the alleged loan - regarding the date of alleged loan transaction, the complainant has shown a greater variation in his complaint and in his evidence.
No doubt, a presumption regarding legally enforceable debt is formed in favour of the accused as observed above. However, the said presumption is rebuttable. For rebutting the said presumption, it is not necessary for the accused either to enter the witness box and to lead his evidence or examine any witness or even to produce any documentary proof in his support. Suffice for him to make a case of preponderance of probabilities in his favour to rebut the presumption formed in favour of the complainant under Section 139 of N.I. Act - The material contradiction that has been brought out in the case of the complainant would dilute the case of the complainant, at the same time, make out a preponderance of probabilities in favour of the accused. This aspect both the trial Court, as well as the Sessions Judge's Court have failed to observe.
The impugned judgments to be considered as perverse and suffering with infirmity - Petition allowed.
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2021 (7) TMI 737
Dishonor of Cheque - legality of signature on a money receipt which forms the basis of consideration behind the cheque in question - refusal to to send the document in question to a handwriting expert quite sometime ago - HELD THAT:- The learned revisional Court seems to have erred in holding that the application for seeking the handwriting expert's opinion was filed after the examination of the accused under Section 313 of the Code. In any event, even after examination of the accused under Section 313 of the Code, an accused can seek the opinion of a handwriting expert - If the purported money receipt is not sent to an expert for comparison, it would amount to denying a fair trial to the accused.
The application of the petitioners shall appropriately be allowed to send the money receipt to a handwriting expert for comparing the signature of the accused with those in admitted documents - Trial Court are set aside and the learned Trial Court is directed to send the money receipt in question to a handwriting expert for comparison with the signature of the accused present in admitted documents - application disposed off.
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