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Indian Laws - Case Laws
Showing 41 to 60 of 63 Records
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2021 (7) TMI 736
Dishonor of Cheque - insufficiency of funds - interpretation of statute - Section 138 of the NI Act - imposition of punishment of imprisonment, which may extend to one year, or with fine which may extend to twice the amount of the cheque, or with both - whether the learned appellate Court has rightly interfered with the sentence and sentenced to fine only which the accused had already deposited? - HELD THAT:- Here in the instant case, in Section 138 of the NI Act the word "or" has been employed and discretion has been conferred to the Criminal Court sentencing the convicted person for offence under Section 138 of the NI Act. Thus, there is a discretion left with the Criminal Court dealing with complaint under Section 138 of the NI Act either to sentence the accused with imprisonment or to punish the accused with the sentence of fine upon considering the facts and circumstances of the case.
From the provisions contained in Section 138 of the NI Act and following the principles of law laid down by their Lordships of the Supreme Court in the case of Somnath Sarkar v. Utpal Basu Mallick and another [2013 (10) TMI 949 - SUPREME COURT], it is quite vivid that Criminal Court sentencing the accused for commission of offence under Section 138 of the NI Act is competent to impose sentence of fine only as imposition of jail sentence is not mandatory as it is the discretion vested with the Criminal Court dealing with complaint under Section 138 of the NI Act either to impose jail sentence or sentence of fine only depending on the facts and circumstances of particular case.
Whether the trial Court as well as the Court of Session is justified in not imposing compensation upon the accused/respondent No. 1 under Section 357(1)(b) of the CrPC? - HELD THAT:- The law with regard to grant of compensation under Section 357(3) of the CrPC in cases arising from Section 138 of the NI Act is well settled. The object of Section 138 of the NI Act appears to be punitive as well as compensatory in nature as it provides a single forum and single proceeding for enforcement in criminal liability (for dishonouring the cheque) and for enforcement of civil liability (for realization of cheque amount).
It is quite vivid that under Section 138 of the NI Act, Criminal Court is competent to levy fine up to twice the cheque amount and direct payment of such amount as compensation by way of restitution in regard to the loss on account of dishonour of cheque under Section 357(1)(b) of the CrPC and as such, the power under Section 357(3) of the CrPC cannot be exercised by Criminal Court in the cheque dishonour cases.
It is quite vivid that the trial Magistrate has convicted the accused/respondent No. 1 under Section 138 of the NI Act and sentenced him to undergo RI for three months, but no fine was imposed, however, in appeal filed by the accused, the appellate Court maintained conviction, but reduced sentence to fine sentence only. Taking into consideration, the provisions contained in Section 138 of the NI Act in which punishment imposable is two years imprisonment or with fine which can be twice the amount of cheque - ends of justice would be served if fine awarded ₹ 5,000/- is enhanced to ₹ 2,67,011/- and an additional amount of ₹ 25,000/- towards interest on the said amount is imposed. Accordingly, the accused/respondent No. 1 is sentenced to pay fine of ₹ 2,67,011/- and ₹ 25,000/- which shall be paid as compensation to the complainant/petitioner under Section 357(1)(b) of the CrPC. It is stated at the Bar that respondent No. 1 has deposited fine of ₹ 5,000/- in compliance of the order passed by the appellate Court.
The criminal revision is allowed in part.
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2021 (7) TMI 702
Seeking an order to restrain the Respondent from encashing bank guarantees - HELD THAT:- In view of the statement made by Mr. Handoo and the fact that the parties are going to attempt a settlement, Mr. Parag Tripathi, learned Senior Counsel for the Petitioner states that he would not like to press the present petition at this stage and seeks liberty to approach this Court, at a later stage, in case the Respondent initiates steps for the invocation of the bank guarantees.
The present petition is dismissed as withdrawn with liberty to the Petitioner as aforesaid.
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2021 (7) TMI 692
Dishonor of Cheque - Filing a case for Suit for recovery of money after initiating action u/s 138 of N.I.Act - Validity of FIR registered - Allegation is that the discount as promised by seller were not provided - matter of contract to be proved by the second respondent for recovering the amount said to be due to him - HELD THAT:- If the FIR registered against the petitioners and two others is read, it appears that the second respondent wanted to purchase laptops from the first petitioner’s business concern and there is no dispute with regard to this. The petitioners dispute offering of discount to the extent of 15 to 18% and claim to have supplied the entire quantity of laptops which is again disputed by the second respondent. But what is important to be noted here is that on 16.11.2018 itself, the second petitioner lodged an FIR with Halasur Police against the second respondent, his wife Smt. H.G. Pranitha, Mrs. Kavitha Wagamore and Mrs. Vasudha Shenoy alleging that his employees viz., Mrs. Kavitha Wagamore and Mrs. Vasudha Shenoy colluded with the second respondent and his wife to run a parallel business under the name and style of Viva Info Solutions and caused loss to him - According to the second respondent, the petitioners have to pay him an amount of ₹ 4.95 crore towards the discount offered to him, which is disputed by the second petitioner. Therefore it may be stated that if really the petitioners had offered discount, it is a matter of contract to be proved by the second respondent for recovering the amount said to be due to him. He has to file a suit for recovery of money against the petitioners.
If really the second respondent’s grievance about cheating and forgery by the petitioners is genuine, he should have made a report to the police much earlier. If he thought of making a complaint to the police after registration of FIR against him in Cr.No.421/2018 and initiation of proceeding under Sec.138 of N.I.Act, obviously a doubt arises about the veracity in the contents of FIR 34/2019. The petitioners have made allegations against his employees viz., Mrs. Kavitha Wagamore and Mrs. Vasudha Shenoy and that the second respondent has also blamed them in his FIR. Therefore it can be said that the allegations against this petitioner in FIR No.34/2019 do not prima facie appear to be believable.
Petition allowed.
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2021 (7) TMI 649
Dishonor of Cheque - insufficient fund - it was argued that the cheques were issued as security and not in discharge of any debt - crystallization of cause of action on the date of filing of the complaint case under section 138 of the Negotiable Instruments Act, 1881or not - complainant itself was pre-mature or not?
HELD THAT:- This court is of the considered view that the learned trial court completely failed to consider that the cause of action for filing a complaint case under Section 138 of the N.I. Act is not counted from the date of dispatch of legal notice, but is counted from expiry of 15 days from the date of service of legal notice. Thus, the timeline for filing the case, even if it is assumed that the legal notice having been sent through registered cover on 04.03.2008 and not return back unserved or returned back for any other reason , the date of service would be 03.04.2008 i.e expiry of 30 days from dispatch of the legal notice and thereafter 15 days was required to be counted i.e., till 18.04.2008 for the cause of action to mature in order to file a complaint case under section 138 of the Negotiable Instruments Act, 1881 - However, in the instant case, the complaint was filed on 10.04.2008 and thus, the cause of action for filing the complaint case under Section 138 of the N.I. Act had not matured on 10.04.2008, which is the date of filing the complaint case. This Court also finds that the learned trial court has not recorded any finding in connection with the service of legal notice much less of finding of deemed service of notice after expiry of the 30 days period from dispatch of legal notice under registered cover.
This Court finds that there is no material on record regarding service of legal notice dated 03.03.2008 dispatched by registry on 04.03.2008 upon the petitioner and it is not the case of the complainant that the legal notice was returned unserved or returned for any other reason. This court is also of the considered view that presumption regarding service of notice sent through registered cover can be drawn only upon expiry of 30 days from the date of dispatch of notice - This Court finds that the law has been well settled that the cause of action for filing a complaint case under Section 138 of the N.I Act could not arise prior to expiry of 15 days from the date of service of legal notice on the accused.
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 petitioners 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 - Petition allowed.
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2021 (7) TMI 592
Seizure of Contraband item - Hashish Oil - prosecution records show that the first accused was arrested, and noting was seized from petitioner - HELD THAT:- The prime accused, from whom the contraband was seized, has already been granted statutory bail.
No further purpose can be served by detaining the petitioner in custody - petitioner shall be released on execution of bonds and subject to fulfilment of conditions imposed - petition allowed.
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2021 (7) TMI 526
Dishonor of Cheque - insufficiency of funds - no reasonable opportunity was given to the accused to further cross examine P.W.1 and also to lead her evidence - principles of natural justice - HELD THAT:- On 12.11.2014, the request made by the accused' side for an adjournment was rejected and the defence evidence was taken as 'nil' and the arguments of the learned counsel for the complainant was heard, the matter was posted for defendant's arguments on 26.11.2014. On 26.11.2014, the request made by the accused for an adjournment was rejected and defendant's arguments was also taken as 'heard' and the matter was posted for Judgment, to 10.12.2014. However, on 10.12.2014 and the next date of hearing which was 22.12.2014 the Court did not pronounce the Judgment and posting the matter to 31.12.2014, it proceeded to pass the impugned Judgment convicting the accused before it as guilty for the offence punishable under Section 138 of the N.I. Act.
The recording of the proceedings in the Trial Court shows that though the matter was initially posted for further cross examination of P.W.1 and was called for the said purpose on 17.02.2014, the request for an adjournment was rejected. The Order Sheet does not mention as to why adjournment was refused / rejected. It can be noticed that prior to that no adjournment for further cross examination of P.W.1 was sought for from the accused' side. As such, the very first request for an adjournment for further cross examination of P.W.1 by the accused was rejected by the Trial Court. In addition to this, the application filed by the accused on the very next date of hearing under Section 311 Cr.P.C. was also rejected on the very same day based upon the oral objection by the complainant - in the entire process of further cross examination of P.W.1, only a single adjournment was granted to the accused and further hearings were all with respect to filing of Section 311 Cr.P.C. application by the accused and rejection of the same by the Trial Court. Thus the accused was not given a reasonable opportunity to cross examine P.W.1.
Since the accused has not been granted a reasonable opportunity to put forth her case including cross examining P.W.1, the impugned Judgment passed by the Trial Court which was further confirmed by the Sessions Judge's Court deserves to be set aside and the matter deserves to be remanded with a direction to the Trial Court to give a reasonable opportunity to the accused to further cross examine P.W.1 and to lead defene evidence if she opts so - Petition allowed by way of remand.
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2021 (7) TMI 518
Appointment of a Retired District Judge as the Sole Arbitrator - alteration of cost per unit in the event there is any variation in the tax paid or otherwise - HELD THAT:- This Court prima facie opines that the controversy between the petitioner and the respondent would include the question whether the respondent could have insisted for reduction in the agreed cost per unit consequent to reduction in the GST rate., and the controversy would be within the fold of a dispute contemplated for resolution by arbitration under the agreement dated 31.08.2017. The petitioner has invoked the arbitration Clause in issuing the legal notice dated 16.12.2020 calling upon the respondent to convey willingness for accepting the nomination by the petitioner, but the respondent has failed to signify such acceptance.
Smt. H.S.Kamala, retired District Judge, is appointed as the Sole Arbitrator to enter reference of the dispute between the petitioner and respondents and conduct the arbitration proceeding at the Arbitration and Conciliation Centre (Domestic and International), Bengaluru according to the Rules governing the said Arbitration Centre - Petition allowed.
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2021 (7) TMI 433
Dishonor of Cheque - dues was against the company but the cheque was issued by the petitioner from his personal account - Legally enforceable debt or not - specific case of the complainant was that the accused procured the supply of railway tickets in his favour from the complainant dishonestly with fraudulent intention and did not intend to pay the same - section 138 of Negotiable Instruments Act, 1881 - HELD THAT:- In the instant case, the cheque has been issued by the petitioner and the petitioner claims that the debt was legally enforceable against the company in which he was working and not against him as the petitioner was merely an employee of the company having office at Hyderabad. This Court finds that vide letter dated 25.11.2003 issued by the petitioner, the complainant was asked by the accused to hold the cheque for some time as it was likely that his company would issue appropriate cheque in discharge of the entire debt. The cheque was issued by the petitioner only to the extent of ₹ 88,355/- and the entire amount payable to the complainant-company was to the tune of 1,33,101/-. Thus, the cheque was certainly issued in discharge of the legally enforceable debt - The company having not cleared the dues of the complainant, the complainant presented the cheque which bounced twice.
This Court finds that the presumption in connection with issuance of cheque that the same was issued against legally enforceable debt could not be rebutted by the petitioner and the only argument advanced by the petitioner is that there was no legally enforceable debt against the petitioner and the debt was only against his company - The present case is not related to any vicarious liability which arises when the cheque is issued by the company. In this case, the cheque is issued by the accused in his personal capacity and his specific case is that the debt was against the company and not against him.
The petitioner would still be convicted even if he issues his personal cheque in discharge of the dues of the company. The learned appellate court has rightly held that petitioner being signatory of the bounced cheque is clearly responsible for non- payment of the amount to the complainant and rightly upheld the conviction of the petitioner for offence under Section 138 of the Negotiable Instruments Act, 1881.
This Court does not find any irregularity, illegality or perversity in conviction of the petitioner for offence under Section 138 of the Negotiable Instrument Act, 1881 - the present revision petition is hereby dismissed.
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2021 (7) TMI 432
Dishonor of Cheque - acquittal of the accused - rebuttal of presumption - legally enforceable debt or not - offence punishable under Section 138 of N.I. Act took place or not - HELD THAT:- No doubt, the legal requirement of issuance of notice etc. have been complied. Further, the accused has not disputed the fact that the cheque belongs to him and bears his signature. As such, the presumption under Section 139 of the N.I. Act required to be drawn. However, it is not a conclusive presumption, but a rebuttable presumption. As per Section 139 of the N.I. Act, the complainant being the holder of the cheque and signature on the cheque having not been denied by the accused, the presumption shall be drawn that, the cheque was issued for discharge of any debt or other legal liability. However, the accused can rebut the said presumption regarding non-existence of liability, but at the same time, the complainant (prosecution) is required to prove his case beyond all reasonable doubt - the accused for rebutting presumption, need not to lead his own evidence and he can also rebut the presumption on the basis of the evidence placed by the complainant himself.
The complainant has failed to establish his financial capacity to advance loan. Hence, it cannot be presumed that the cheque was issued in discharge of legally enforceable debt or liability. As such, the presumption under Section 139 of the N.I. Act stands rebutted and the accused by cross-examining the complainant, has rebutted the said presumption. As such, the appellant/complainant has failed to substantiate the contention that the cheque was issued towards legally enforceable debt, which is a mandatory requirement for attracting the offence under Section 138 of the N.I. Act.
The learned Magistrate is justified in answering point under consideration in the negative - Appeal dismissed.
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2021 (7) TMI 431
Dishonor of Cheque - complainant could not be present before the trial Court - guilty for the charges leveled against or not - HELD THAT:- It is seen in the order sheet of the trial Court that even the matter was referred to the mediation to explore the possibility of settlement. However, subsequently when it is posted for cross-examination of the complainant, the accused has cross-examined the complainant fully. His statement under Section 313 of Cr.P.C. was also recorded and the matter was posted for defence evidence. At this stage, the accused remained absent and even the NBW issued repeatedly could not be executed. Notices to sureties were also issued by the trial Court. However, on 03.02.2020 the trial Court proceeded to dismiss the case for default i.e., for non-prosecution. The trial Court noticed that for several dates there was no representation on behalf of the complainant and there is no reason to adjourn the matter.
The complainant could not be present before the trial Court. Absence of the complainant is not intentional or deliberate. Hence, the appeal may be allowed in the interest of justice - the impugned order dismissing the case for default could be set aside subject to terms - criminal appeal allowed.
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2021 (7) TMI 423
Dishonor of Cheque - power of Deputy In-charge, Principal Officer or Senior Clerk of the Company to file a complaint case against the petitioners - Adequate court fees not paid - HELD THAT:- The Court Fees Act and consequently all the Orissa State Amendment are only to providing for taxing purposes. If insufficient court fees are paid in a proceeding, be it a civil or criminal, the proceeding should not be dismissed at the threshold, rather the Court is under a duty to give a reasonable opportunity to the petitioner in a complaint case or the plaintiff in a civil proceeding to pay the deficit court fees. In no case, a proceeding should be dismissed for payment of inadequate court fees without affording a reasonable opportunity to the petitioner, complainant or the plaintiff to make good deficit court fees. This Court is of the opinion that even at the final hearing of the proceeding, if it is found that insufficient court fees has been paid, the judgment can be pronounced directing the petitioner or complainant to pay the deficit court fees, lest the final order shall not take effect.
This Court is of the opinion that there is no reason to dismiss the complaint or to allow the revision setting aside the order taking cognizance and issuance of processes by the learned Magistrate.
This Court is of the opinion that in the present cases the company has been duly authorized an authorized person. If the accused arrayed in this cases wants to disputes those facts and statements, the said issues may be raised at the time of trial of the cases and opportunities should be given to the complainant to show before the learned Magistrate that in fact, the company made a Resolution to authorize Mr. Ratnakar Nayak to file the complaint on behalf of the company and if necessary examine the Managing Director or any of the Directors of the company.
On a careful conspectus of the entire material on record as well as the law governing the field, this Court is of the opinion that the cognizance taken by the learned SDJM, Panposh cannot be quashed or set aside because of non-compliance of the provisions of the Companies Act, 1961 or for deficit court fees or for lack of jurisdiction. However, all these complaints filed before the SDJM, Panposh are allowed to be withdrawn to the complainant to be filed before the learned JMFC, Barbil within the period of limitation as prescribed from the date of such withdrawal.
Criminal Revisions are disposed of.
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2021 (7) TMI 422
Continuation of suspension of the applicant/respondent - chargesheet/charge memo not filed - penalty on delay in investigation - HELD THAT:- This Court finds that despite the lapse of two years, neither any chargesheet has been filed nor any charge memo has been issued to the applicant/respondent. As far as the issue of suspension of the petitioner and extension thereof, this Court is of the view that the Investigating Authorities have had more than sufficient time to conclude the investigation - For any delay in investigation, the applicant/respondent cannot be penalised. This Court is also in agreement with the reasoning of the Tribunal that since the applicant/applicant has now to be paid subsistence allowance equivalent to his salary, it would serve no purpose not to utilise his services.
This Court finds no ground to interfere with the impugned order in writ jurisdiction and the present writ petition along with pending applications is dismissed.
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2021 (7) TMI 394
Entertainment Tax - Validity of Government Order passed in G.O.Ms.No.89, Commercial Tax - validity of Registration Department dated 21.07.2011 and the consequential guidelines issued by the second respondent in proceedings dated 09.01.2012 - seeking exemption to the Petitioner's Movie under the Tamil Nadu Entertainment Tax Act - validity of Government Order passed in G.O.(D).No.90 dated 26.02.2014 - date of grant of exemption under Tamil Nadu Entertainment Tax Act from 26.02.2014 - validity of Government Order passed in G.O.No.002 dated 03.01.2012 - direction to constitute a new committee to view and recommend films for grant of exemption to entertainment tax - seeking appointment the Committees, grant of exemptions for movies and formulate a policy decision, which can work free from Favouritism, Nepotism and corrupt activities.
HELD THAT:- This Court is of the humble opinion that the Governmental institutions have no heart and life of its own. It remains as a building with infrastructures. It is the women and men of integrity, who injects heart and soul to these institutions for the welfare and benefit of the common people - the institutional integrity includes the engagement of authorities possessing the virtue of integrity and honesty. Once the individual's character is lost, the institutional values are lost, the credibility is lost and therefore, the governmental approach in these aspects must be cautious and in consonance with the constitutional perspectives.
The mechanism of control must be far more transparent than that of the system prevailing now. Unless effective steps are taken, the constitutional mandate of effective public administration cannot be provided to the citizen of this great Nation. Thus, this Court has no contrary opinion regarding judicial restraint to be exercised in administrative policies. However, the Courts are bound to express its anguish regarding the happenings in the public Administrations. That exactly is the reason why there is a clash between judicial restraint and judicial activism. Undoubtedly, the Court cannot run the Government. However, the High Court has got a constitutional duty to protect the constitutional principles and the values - While exercising the constitutional powers, Courts cannot close its eyes in respect of such happenings in the public administration. The Government of the day irrespective of the political parties, must think about all these aspects.
As far as the present writ petitions are concerned, this Court could easily visualize the possibilities of Favouritism and discrimination - However, for want of evidences and in view of the fact that there is no specific malafide allegations against the persons, this Court is unable to consider the relief as such prayed for. However, the Committees overall exercise was improper as the members of the Committee have certain personal affinity with the Government or the Political leaders, who were ruling the State.
The Government of the day is expected to consider the following aspects and appoint Committees and authorities in Government organizations and institutions.
(1) The women and men of integrity having merit must be selected and appointed in Expert Committees, Governmental organizations and institutions etc.,
(2) Integrity and honesty must be the criteria, which is to be assessed at the first instance and the merits are to be considered. When the merits are being equal priority, should be given to the integrity and honesty.
(3) All such selections and appointments are to be made in a transparent manner and by providing equal opportunity to all the eligible women and men, who all are eligible for such appointments. All such selection and appointments are to be made beyond the Political affinities, aspirations and ideologies, keeping in mind that it is public appointments.
(4) If each Political party appointing their own men in such Expert Committees, if allowed to be continued, then there is no scope for revival of social justice, equality in opportunities, merit and integrity.
The Government is expected to revisit the entire process and appointment the Committees, grant of exemptions for movies and formulate a policy decision, which can work free from Favouritism, Nepotism and corrupt activities, enabling the people of this great Nation to get social justice from the Government of the day - Petition disposed off.
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2021 (7) TMI 387
Condonation of delay of 226 days in filing revision petition - sufficient explanation provided for condonation of delay or not - Dishonor of Cheque - HELD THAT:- It is well settled by the Supreme Court that there cannot be any rigid ground to be held with sufficient cause for condoning the delay. The basic parameter for treating the reasons as sufficient cause is whether by not filing the case within the stipulated time framed right of any party is adversely affected.
The Supreme Court in catena of decisions has held that the Courts should adopt a liberal and justice-oriented approach for condoning the delay. Ordinarily a litigant does not stand to benefit by lodging an appeal late. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties - Similarly, it is also well settled by the Supreme Court that the condonation of delay must be on bonafide reason without any ulterior motive or any deliberately manner on the part of the litigant then only the delay in filing the application before the Court should be entertained.
In the case in hand, it is apparent that the petitioner was willing to prosecute his case with most sincerity and on the advise of his counsel, he filed criminal revision before this Court directly and after dismissal of the same, there was no communication by his counsel, as such, mistake on part of the counsel, litigant should not be suffered. Moreover, the complaint of the petitioner has been dismissed by learned Chief Judicial Magistrate without deciding on merits, as such, sufficient bonafide reasons have been assigned by the petitioner to condone the delay.
The delay in filing the revision petition is hereby condoned - petition allowed.
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2021 (7) TMI 386
Dishonor of Cheque - insufficiency of funds - case of complainant is that the charges have already been framed wherein he has denied the charges levelled against him - seeking grant of 20% of the amount as interim compensation - Section 143A of the Act, 1881 - interpretation of statute - the word “may” be treated as “shall”, is discretionary or directory? - HELD THAT:- From perusal of the Act, 1881 as well as amended Section 143A of the Act, 1881, it is clear that the Act, 1881 has played a substantial role in the Indian commercial landscape and has given rightful sanction against defaulters of the due process of trade who engage in disingenuous activities that causes unlawful losses to rightful recipients through cheque dishonour. Thereafter, the legislature has amended Act, 1881, which came into force on 01.09.2018 with the aim to secure the interest of the complainant along with increasing the efficacy and expediency of proceedings under Section 138 of the Act, 1881 - From perusal of Section 143A of the Act, 1881, it is quite evident that the act has been amended by granting interim measures ensuring that interest of complainant is upheld in the interim period before the charges are proven against the drawer. The intent behind this provision is to provide aid to the complainant during the pendency of proceedings under Section 138 of the Act, where he is already suffering doubleedged sword of loss of receivables by dishonor of the cheque and the subsequent legal costs in pursuing claim and offence. These amendments would reduce pendency in courts because of the deterrent effect on the masses along ensuring certainty of process that was very much lacking in the past, especially enforced at key stages of the proceedings under the Act.
From perusal of the amended provision of Section 143A of the Act, 1881, it is clear that the word 'may' used is beneficial for the complainant because the complainant has already suffered for mass deed committed by the accused by not paying the amount, therefore, it is in the interest of the complainant as well the accused if the 20% of the cheque amount is to be paid by the accused, he may be able to utilize the same for his own purpose, whereas the accused will be in safer side as the amount is already deposited in pursuance of the order passed under Section 143A of the Act, 1881 - The Hon'ble Supreme Court, while examining 'may' used 'shall' and have effect of directory in nature in case of SMT. BACHAHAN DEVI & ANR VERSUS NAGAR NIGAM, GORAKHPUR & ANR [2008 (2) TMI 869 - SUPREME COURT] where it was held that ultimate rule in construing auxiliary verbs like “may and “shall” is to discover the legislative intent; and the use of words `may' and 'shall' is not decisive of its discretion or mandates. The use of the words “may” and `shall' may help the courts in ascertaining the legislative intent without giving to either a controlling or a determinating effect. The courts have further to consider the subject matter, the purpose of the provisions, the object intended to be secured by the statute which is of prime importance, as also the actual words employed.
Therefore, the word “may” be treated as “shall” and is not discretionary, but of directory in nature, therefore, the learned Judicial Magistrate First Class has rightly passed the interim compensation in favour of the complainant.
From perusal of provisions of the Act, 1881 considering the aims behind object of the Act, 1881, it is concluded that the amendment in Section 143A of the Act, 1881 is mandatory in nature, therefore, the learned Judicial Magistrate First Class has rightly passed the order of interim compensation in favour of the respondent and has not committed any irregularity or illegality in passing such order.
Petition dismissed.
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2021 (7) TMI 340
Dishonor of Cheque - insufficiency of funds - failure to repay the money despite receiving demand notice - mechanical statement without verification of documents - HELD THAT:- The impugned cheque for a sum of ₹ 2,00,000/- was issued by the accused in favour of the complainant which was presented by the complainant to his banker i.e. SBI for encashment and crediting the same in his account. The said cheque was sent to Tripura Gramin Bank from SBI for collection. But the cheque was bounced from the Tripura Gramin Bank on which it was drawn for insufficiency of fund in the account of the accused. It also stands proved that the complainant issued statutory demand notice to the accused which was received by him and despite receipt of the notice, the accused did not pay the loan of the said amount of ₹ 2,00,000/- to the complainant. Eventually the complainant lodged the complaint in the court of the CJM at Udaipur.
It is true that the complainant could not produce the impugned cheque at the trial. But his failure in presenting the cheque before the court does not affect his case because the Branch Manager of SBI at Udaipur branch had categorically stated in his evidence that the said cheque was missing from the custody of the bank which was also reported to the jurisdictional police station and the information was recorded in the General Diary of the police station. The accused could not impeach the evidence of the PW in this regard and there is no reason to doubt the statement of the Branch Manager, SBI [PW-3].
The plea of the accused is not at all probable. The complainant on the other hand has been able to prove the essential facts by adducing consistent evidence. The complainant proved that accused borrowed a sum of ₹ 2 lakhs form him and to discharge his debts, he issued the impugned cheque to the complainant which was dishonoured by the bank - In the instant case, apparently the accused petitioner did not lead any evidence in rebuttal of such statutory presumptions. He has also failed to bring on record such facts and circumstances which would lead the courts below to believe that the liability, attributed to the accused petitioner was improbable or doubtful.
The impugned judgment is set aside and judgment and order of the trial court convicting the accused petitioner for having committed offence punishable under Section 138 NI Act is restored - Sentence is reduced to fine of ₹ 2,25,000/- only and in default to SI for 2 months.
The criminal revision petition stands disposed of.
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2021 (7) TMI 335
Entitlement of compensation under Section 124A of the Railways Act - untoward incident - officers accountable for the lapses in the handling of the Court cases - HELD THAT:- The aim of the National Litigation Policy is to transform the Government into an efficient and responsible litigant. The core issue involved in the Court cases need to be focused and the same have to be managed and conducted in a cohesive, coordinated and time bound manner with the aim to reduce government litigation in Courts. All substantial questions of law in relation to special Economic Laws in view of the changing scenario and economic activity so as to achieve the goal in the national Legal Mission.
The National Litigation Policy should imbibe into it the compulsory mediation process by the Government. India has, as its dynamic doctrine, economic democracy sans which critical democracy is chimerical. As a matter of fact, the Supreme Court has observed that even constitutional problems cannot be studied in a socio-economic vacuum, since socio culture changes are the change of the new values and slogging of old legal thought will be part of the process of the new equity loaded legality. The Judge is a social scientist in the role as a constitutional invigilator.
This Court is of the view that the directions with respect to the Accountability in Government litigation are in the nature of PIL and therefore, it would be appropriate to list this matter before the PIL Bench - Subject to the orders of Hon’ble the Chief Justice, list this matter before Division Bench on 15th July, 2021.
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2021 (7) TMI 310
Dishonor of Cheque - issuance of signed blank cheque - contention is that the cheques were issued in blank and the cheques were not filled, but signature on the cheque was not denied - award of sentence - HELD THAT:- The Apex Court in BIR SINGH VERSUS MUKESH KUMAR [2019 (2) TMI 547 - SUPREME COURT] succinctly held that once a person signs a cheque and makes it over to the payee remains liable unless he adduces evidence to rebut the presumption that the cheque had been issued for payment of a debt or in discharge of a liability. It had also been held by the Apex Court by the said judgment that even if a blank cheque is voluntarily presented to the payee, towards some payment, the payee may fill up the amount and other particulars which itself would not invalidate the cheque.
In the present context there is no allegation from side of the accused petitioner that she signed the impugned cheques involuntarily. The accused petitioner denied her debt or liability. Her case is that she repaid full amount of advance to the respondent - Law is well settled that mere denial would not absolve the accused from the liability unless the statutory presumptions under the N.I Act is rebutted by the accused and the contrary is proved by adducing cogent evidence, direct or circumstantial - In Laxmi Dyechem Vrs. State of Gujarat and others [2012 (12) TMI 106 - SUPREME COURT] the Apex Court held that under Section 139 of N.I Act it has to be presumed that the cheque was issued in discharge of a debt or other liability but such presumption should be rebutted by adducing evidence.
It is no case of the accused petitioner that she signed the impugned cheques or parted with those cheques under any threat or coercion - the statutory presumptions that the cheques were issued by her in discharge of her liability arises against her which she could not rebut by adducing evidence. Therefore, in so far as her conviction is concerned, there are no error in the concurrent findings of the Courts below.
Award of sentence - HELD THAT:- The trial Court sentenced her to a fine of ₹ 15,00,000/- and in default to S.I for six months and in case No. N.I. 113/2008 the trial Court sentenced the accused respondent to fine of ₹ 20,00,000/- and in default S.I for six months. It was directed in both the cases that fine on realisation be paid to the complainant respondent as compensation - it is deemed appropriate to reduce the fine imposed on the accused by way of sentence to ₹ 24,00,000/-.
Appeal allowed in part.
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2021 (7) TMI 234
Dishonor of Cheque - stay on Trial - the Company of which the petitioners are the Directors is under moratorium under Section 14 of the IBC - Whether the order of moratorium under Section 14 of the IBC interdicts a criminal proceeding under Section 138 of the NI Act or not? - HELD THAT:- The moratorium under Section 14 is intended to keep the corporate debtor's assets together for successful insolvency resolution and hence, a criminal proceeding which may result in the assets of the corporate debtor being depleted as a result of having to pay compensation, which can amount to twice the amount of the cheque that has bounced, would directly impact the corporate insolvency resolution process in the same manner as the institution, continuation or execution of a decree in such suit in a civil Court for the amount of debt or other liability.
Section 141 of the NI Act speaks of persons in charge of and responsible to the company for the conduct of the business of the company "as well as the company". The words "as well as the company" appearing in Section 141 of NI Act make it absolutely clear that when the company can be prosecuted, then only the persons mentioned in the other categories could be held vicariously liable for the offence. The legal impediment contained in Section 14 of the IBC would make it impossible for such proceeding to continue against the corporate debtor. Thus, during the period of moratorium, such proceeding can continue against the persons mentioned in Section 141(1) and (2) of the NI Act.
The complaint under Section 138 of the NI Act was filed in 2015 against the company and the petitioners herein, who have been arraigned as original accused Nos.2 & 3, for being the Directors of the company - The petitioners, being the Directors of the company, could be dealt with vicariously under the NI Act.
This Court is of the opinion that the trial Court has not committed any error in rejecting the applications filed by the petitioners - Petition dismissed.
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2021 (7) TMI 232
Dishonor of Cheque - Cheating - offence of cheating by dishonestly inducing PW-1 to deliver a cash sum for providing a government job to his brother - cross examination of the prosecution witnesses - HELD THAT:- It has not been denied by the petitioners that petitioner Aswini Debbarma developed a relationship with PW-1 while he was posted as teacher in a government school at Sabroom. It is not also denied by him that he used to meet PW-1 in his bakery frequently. By cross examination of the prosecution witnesses, the petitioners tried to establish that the cheques which were issued by accused Subhash Debbarma to PW-1 were not presented at the New Secretariat branch of SBI where the accused maintained his account and as a result the cheques were dishonoured. He also wanted to establish that accused Subhash Debbarma received the said sum of money from PW-1 as official expenses for arranging a job for his brother Babul Saha. He never denied the execution of the agreements [Exbt.1 & 2] and his signatures thereon. Petitioners did not also deny that Subhash Debbarma (one of the petitioners) received the said sum of money from PW-1 assuring him that he would arrange a government job for his brother. The learned trial court has rightly held that the facts of the case do not attract the provisions of Section 138 NI Act because in bringing the charge under NI Act the procedures prescribed thereunder have to be followed.
In order to constitute an offence under Section 420 IPC, it has to be essentially proved that the accused has committed cheating within the meaning of Section 415 IPC and by such cheating has dishonestly induced the persons so cheated to deliver any property to the accused or to any person, or to make alter or destroy the whole or any part of the valuable security or anything which is signed or sealed, and which is capable of being converted into a valuable security - Clearly in this case the allegations which have been brought against the petitioners are that with a fraudulent intention they allured PW-1 with a government job for his brother and dishonestly induced him to pay ₹ 1,10,000/- to them and thereby committed the offence of cheating punishable under section 420 IPC.
In the case of HRIDAYA RANGAN PD. VERMA AND ORS. VERSUS STATE OF BIHAR AND ANR. [2000 (3) TMI 1105 - SUPREME COURT OF INDIA] the Supreme Court has succinctly held that to establish the charge of cheating against the accused, it is necessary to show that he had fraudulent or dishonest intention at the time of making the promise.
Thus, the accused petitioners committed the offence of cheating by dishonestly inducing PW-1 to deliver a cash sum of ₹ 1,10,000/- for providing a government job to his brother. The receipt of the money is not denied by the petitioners. Rather they tried to establish that they had taken the money from PW-1 for processing his application for a government job and they also tried to refund the money when they failed to keep their promise by issuing cheque in favour of the complainant [PW-1] which was eventually dishonoured for the fault of the complainant - this court is of the view that there is no infirmity with regard to the conviction and sentence of the petitioners. Their conviction and sentence passed by the trial court has been rightly affirmed by the learned appellate court.
The criminal revision petition stands dismissed.
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