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Indian Laws - Case Laws
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2023 (12) TMI 1434
Rejection of application moved by the Appellants – Defendants under Order VII Rule 10 and Rule 11(d) of the Code of Civil Procedure, 1908 read with Section 19(6) to (10) of the Recovery of Debts and Bankruptcy Act, 1993 - jurisdiction to entertain the suit filed by the Plaintiff for recovery of loss, damages, and compensation - HELD THAT:- Sub Section 1A of Section 13 provides that a person aggrieved by a judgment or order can file an appeal, however, the said provision is to be read in conjunction with the proviso which specifically states that an appeal shall lie only from orders which are specifically enumerated under Order XLIII of the CPC. The occurrences of the expression “shall” and “specifically” in the proviso has to be noted for correctly understanding the legislative intent in framing the scheme of Section 13 of the Act of 2015. It is also noteworthy that the order under challenge in this appeal has been passed by the learned trial court rejecting the Application moved by the Defendants under Order VII Rule 10 and Rule 11(d) of the CPC. Such an order is not enumerated in Order XLIII of the CPC, though Rule 1(a) of Order XLIII enlists an order passed under Order VII Rule 10 for returning the plaint. Thus, Order XLIII enlists the order passed on an Application under Order VII Rule 10 if it is allowed, however, it does not enlist the order in case such an Application is rejected.
The Hon’ble Delhi High Court in the case of D & H India Ltd. [2020 (3) TMI 1458 - DELHI HIGH COURT] held the appeal to be maintainable by observing that the Court in that case was not concerned with the challenge to the order passed under Order VI Rule 17 of the CPC, rather under Order V of Chapter II of the 2018 Rules of the High Court.
Conclusion - Section 13(1A) of the Act of 2015 would lie only against the judgment and orders which are enumerated or enlisted under Order XLIII of the CPC. An order rejecting an Application moved under Order VII Rule 10 or Order VII Rule 11(d) of the CPC is not enumerated or enlisted in Order XLIII of the CPC hence, such an order is not appealable.
The instant appeal is not maintainable - Appeal dismissed.
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2023 (12) TMI 1432
Dishonour of cheque - acquittal of the accused for the offence under Section 138 of the Negotiable Instruments Act - sufficient grounds to warrant interference with the Trial Court's findings - HELD THAT:- Any material alteration of a negotiable instrument renders the same void as against any person who is a party thereto at the time of making such alteration and does not consent thereto. DW.1 in her evidence has stated that she has borrowed Rs.1,50,000/- from the complainant and Smt.Kashibai was standing as surety for the said amount. The said Smt.Kashibai insisted the accused/DW.1 to repay the loan to the complainant. As per her instruction, the accused said to have paid Rs.1,25,000/-. The accused had to pay the balance and intimated the complainant to return the cheque and also informed the complainant that the balance would be paid at the time of returning the documents.
On conjoint reading of Sections 20 and 87 of the N.I Act, it makes it clear that the provision of Section 87 are subject to those of Sections 20, 49, 86 and 125 of the Act. When the accused / drawer of the cheque signed the cheque and issued blank cheque to the complainant, if any alteration appears on the body of the cheque, such alterations need not require the consent of the accused / drawer of the cheque. In this way, the Trial Court has committed error in recording the acquittal on the ground that the cheque is materially altered. Therefore, the judgment and order of acquittal passed by the Trial Court is liable to be set aside.
Conclusion - i) The judgment and order dated 26.10.2018 passed in C.C.No.25323/2017 by the XII and XXXVII Additional Chief Metropolitan Magistrate (S.C.C.H-8) at Bengaluru is set aside. ii) The respondent / accused is convicted for the offence under Section 138 of N.I. Act and she is sentenced to pay a fine of Rs.3,00,000/-, in default of payment of fine, she shall undergo simple imprisonment for one year.
Appeal allowed.
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2023 (12) TMI 1423
Applicability of Doctrine of priority of interest as contemplated under Section 48 of the Transfer of Property Act, 1882 - power of attorney is inadmissible in evidence or not - HELD THAT:- The first plaintiff claims ownership based on the sale deed dated 20.05.2004 executed by the second plaintiff based on an unregistered General Power of Attorney and affidavit. Already answered that the General Power of Attorney and the declaration of facts in the form of an affidavit are inadmissible in evidence. Now the question of priority between two registered documents is required to be considered. Where there is a competition between two registered documents (relating to the same property) both of which are registered, the question of priority between them is to be determined with reference to the provisions of Section 47 of the Registration Act. If there are successive transfers of the same property, the later transfer is subject to the prior transfer.
Reverting to the facts of the case, the sale deed in favor of the fourth defendant is dated 08.10.2003 and the sale deeds in favor of defendants 5 and 6 are dated 26.04.2004. Whereas the sale deed in favor of first plaintiff is dated:20.05.2004. The registered sale deeds in favor of defendants 4, 5 and 6 were first in time than the sale deed in favor of the first plaintiff. The first plaintiff purchased the property already sold, he cannot question the sale deed to be void and hence to have a mileage on the situation - The transferor cannot prejudice the rights of the transferee by any subsequent dealing with the property. Taking note of the settled proposition of law, the successive transfer of the same property i.e., transfer by the second plaintiff in favor of the first plaintiff is subject to the prior transfer that was made in favor of defendants 4, 5 and 6.
Conclusion - Both Courts are not right in accepting the plaintiff’s contention. They overlooked the settled principles and erroneously went ahead and decreed the suit.
The judgments and decrees passed by the Trial Court and the First Appellate Court are unsustainable in law - the Regular Second Appeal is allowed.
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2023 (12) TMI 1417
Grant of anticipatory bail - corruption and bribery - prosecution’s case is that proposal for enhancement of the tender amount was not made according to the guidelines by the Competent Authority in such type of matters - relevance and admissibility of evidence - HELD THAT:- Although the petitioner was not named in the FIR but the investigation revealed that he had also put his signatures on the proposal to enhance the building to green and in-turn he had received bribe of Rs. 5 lacs from the complainant through co-accused Rambir. By such enhancement, petitioner in connivance with other officials of Municipal Corporation, Sonipat, wanted to give undue benefit to Lalit Mittal in violation of guidelines/norms/policies dated 12.12.2018. In addition to that there were irregularities in the technicalities and proposal which was pointed out in technical report dated 13.02.2023. Because of the unethical conduct of the complainant, the petitioner, who was discharging official functions and holding the post of Electrical Engineer, indulged in corrupt criminal practices and enriched himself knowingly that even if the money was not paid to the contractor, he had nothing to lose. In this manner, he acted as a cheat, which is also why an offence under Section 420 IPC read with 120 B IPC had already been incorporated in the FIR.
Given the nature of allegations, custodial interrogation is required. An analysis of the allegations and evidence collected does not warrant the grant of bail to the petitioner.
In State of Gujarat v. Mohanlal Jitamalji Porwal [1987 (3) TMI 111 - SUPREME COURT], Supreme Court holds 'A murder may be committed in the heat of moment upon passions being aroused. An economic offence is committed with cool calculation and deliberate design with an eye on personal profit regardless of the consequence to the community. A disregard for the interest of the community can be manifested only at the cost of forfeiting the trust and faith of the community in the system to administer justice in an even-handed manner without fear of criticism from the quarters which view white collar crimes with a permissive eye unmindful of the damage done to the national economy and national interest.'
Conclusion - The petitioner failed to establish a case for anticipatory bail, given the allegations and the necessity for custodial interrogation.
The petitioner fails to make a case for anticipatory bail - petition dismissed.
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2023 (12) TMI 1416
Release of amount of Rs. 156 lakhs seized from the petitioners after furnishing bank guarantee - accounted money or not - HELD THAT:- Counsel for the petitioners relied on the order R. RAVIRAJAN; BALAGANESH; VIJAYA BHARATI VERSUS THE STATE OF KERALA & UNION OF INDIA [2023 (9) TMI 1557 - KERALA HIGH COURT], in which this Court considered a similar matter in detail and found that the Income Tax department is not entitled for the amount. In the above order, this Court specifically observed that the order passed by the learned Magistrate ordering the handing over of the amount to the revenue in such situation can not be sustained.
Conclusion - The orders by the Judicial First Class Magistrate Court, Nilambur, directing the release of the seized amount to the Income Tax Department were set aside. The petitioners were granted the release of the seized amount upon furnishing a bond and sureties, ensuring compliance with procedural requirements.
In the light of the above order, these Criminal Miscellaneous Cases are to be allowed.
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2023 (12) TMI 1413
Execution of will in accordance with the legal requirements under the Indian Succession Act, 1925, and the Indian Evidence Act, 1872 - prominent participation in its execution - HELD THAT:- It is well-nigh settled position that the burden to prove the execution of the Will is on the propounder(s) and on its discharge the onus would be on the opposing contestant to establish that it is not valid. Certainly, if suspicious circumstances have been pleaded by the contestant opposing Will and prima facie shown them to be true, then the onus would be shifted to the propounder(s) to dispel the suspicious circumstances to the satisfaction of the court so as to accept it as genuine. In the light of the position so settled and in view of the fact that the trial Court and the High Court are at issue on the question whether the Will in question was proved as valid, in accordance with law, we will have to proceed to consider the said question. In that regard, in view of the undisputed position that the Will was executed by Cecelia Gertrude Lobo, the question to be considered is whether the circumstances taken as suspicious circumstances by the High Court are in troth, suspicious circumstances, capable of calling the propounder to dispel them.
Section 63 of the Succession Act prescribes the mode and method of proving a Will and going by the provisions Under Section 68 of the Evidence Act, though a Will shall not be used as evidence until one of the attesting witnesses has been examined. It will suffice to examine one of the attesting witnesses to prove the same - the trial Court had taken into account the entire evidence on record to conclude that legal requirements in terms of the provisions Under Section 63 of the Succession Act and Under Section 68 of the Evidence Act have been complied with by the Plaintiffs and ultimately to hold that the Plaintiffs have succeeded in proving the execution of the Will.
Once the burden to prove is discharged by the propounder in terms of Section 63 of the Succession Act and Section 68 of the Evidence Act, and by adducing prima facie evidence proving the competence of the testator, the onus is on the contestant opposing to show prima facie the existence of suspicious circumstances so as to shift the onus on the propounder to dispel them. Without knowing the circumstances, which according to the contestant opposing are suspicious, how will the propounder be able to dispel them and to convince the court about its genuineness and validity - A case of well-founded suspicion has to exist to cause shifting of onus back to the propounder once he discharged his burden to prove the execution of the Will.
The allegation of prominent participation as relates execution of a Will suggests some kind of influential interference on the testator/testatrix. There cannot be any doubt with respect to the position that the mere presence of executor or any beneficiary under a Will at the time of the execution of the Will ipso facto will not invalidate it or is sufficient to cast suspicion on the execution of the Will. At any rate, it is for the person raising the same to prove that it was not a mere presence in the vicinity and it was capable of influencing the testator/testatrix.
Conclusion - There are no hesitation to hold that the trial Court had rightly considered all the circumstances to come to the conclusion that Ext.P2 Will was validly executed and it was proved by the Appellants. The circumstances were taken as suspicious by the High Court sans foundation and the High Court erred in holding the subject Will dated 10.11.1992 as not proved.
Appeal allowed.
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2023 (12) TMI 1373
Challenge the appointment of Arbitrator on the part of the respondent Insurance Company - whether the dispute is arbitrable can be decided at the stage of section 11 of the Arbitration and Conciliation Act, 1996? - HELD THAT:- Reliance is placed on the decision of the Apex Court in the case of Magic Eye Developers Private Limited vs. Green Edge Infrastructure Private Limited and others, [2023 (5) TMI 510 - SUPREME COURT], where it was held that 'When the claim is disputed, it is the arbitrator who may competently decide the claim. Arbitrability of the dispute is also to be decided by the arbitrator. While exercising the powers under section 8 of the Arbitration and Conciliation Act, 1996, such questions cannot be gone into by this Court and when there is an arbitration clause, the aspects are to be decided by the arbitrator for such purpose.'
This Court does not find any reason to reconsider the contention of the respondent insurance company that the dispute is non-arbitrable inasmuch, as consent letter has been sent by the petitioner on 24.12.2018 and payment had been received in January, 2019 without any protest.
Petition allowed.
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2023 (12) TMI 1370
Suit for Declaration for declaring the plaintiff (respondent No.1 herein) as the Karta of Late Shri D.R. Gupta and Sons, HUF allowed - married daughter can be the Karta of a Hindu Undivided Family (HUF) or not - Whether the Hindu Succession Amendment Act, 2005 to Section 6 of the Act, 1956 is retrospective? - HELD THAT:- A “Joint Hindu Family” consists of male members descended lineally from a common male ancestor and included their unmarried daughters, wives, mothers and widows. A “coparcenary” is a narrower body which is a subset within a Joint Hindu Family where an interest in the property is created by birth. Though a joint family status is a result of birth, the possession of joint property is only an appendage and not prerequisite for the constitution of such a family as held in Haridas vs. Devaki Bai, 1926 SCC OnLine Bom 76. On the other hand, a “coparcenary” is created only when there is joint or coparcenary property.
Birth in the Joint Hindu Family, seniority by age and the status of being a Coparcener are the necessary qualifications to become a Karta. The traditional Law nowhere proscribed a female from being a manager but the requisite of being the “senior most male” was the necessary corollary of the fact that only male members of the Joint Hindu Family who were born within the degrees of coparcenary, were given the status of a Coparcener.
Whether recognition of a daughter as a Coparcener necessarily entitles her to be a Karta? - HELD THAT:- The concept of coparcenary is derived from the joint ownership of a common pool of assets held by a family and the necessary corollary was that who owns the property, would have a right to manage it. When under the traditional Hindu law, the woman was not entitled to coparcenary property; resultantly, she could not assume the position of Karta. However, the Amendment to Section 6 of the Act, 1956 redefines the meaning of coparcenary as understood under the traditional Hindu Law, which is no longer limited to devolution of interest in the coparcenary property alone but encompasses all other incidents of a Coparcener, including the right to be a Karta. To say that a woman can be a coparcener but not a Karta, would be giving an interpretation which would not only be anomalous but also against the stated Object of introduction of Amendment.
The appellant claims that the learned Single Judge failed to appreciate a significant aspect that performance of spiritual and managerial duties is by the Karta of the HUF which respondent No. 1 being a female, cannot perform. Thus, it has to be accepted that only the appellant, being the eldest male coparcener, is eligible to become the Karta of the “D.R. Gupta & Sons HUF” - This argument raises a fundamental question of the necessary competency of the woman to perform the religious and familial obligations of a Karta in the backdrop of Mitakshara Law.
Spiritual efficacy of a female Coparcener - HELD THAT:- The spiritual efficiency is an indispensable requirement under the Dayabhaga Law; however, the same cannot be presumed under Mitakshara law. It is amply clear from the above that the spiritual duties performed by a Karta of an HUF governed by Mitakshara law was only coincidental to the fact that only male descendants were entitled to become coparceners in the past. Thus, with the amendment in law conferring daughters with coparcenary rights, spiritual efficiency or the ability to perform certain rituals cannot become a prerequisite qualification for becoming a Karta of an HUF governed by Mitakshara law - Spiritual efficiency comes under consideration only when the question of preference arises. In the present case, the question of preference is obviated by the overt seniority by age of respondent No.1 in comparison to the appellant.
Non-Participation in the Affairs of the Family after Marriage - HELD THAT:- Being a Karta is conferment of legal status which includes right to manage the HUF properties and even if the appellant represented himself as Karta in official correspondence on behalf of HUF to manage the property, it does not take away the legal right of the eldest member of the Coparcener of the family, even if she is a woman, to stake a claim to be a Karta.
The right of the daughter of a Coparcener to enjoy the status of a Coparcener from the commencement of the Hindu Succession (Amendment) Act, 2005 cannot hinge upon the life span of her father. Such a distinction can certainly not sustain the test of intelligible differentia that was sought to be addressed through the Amendment.
Thus, in the present case, it is established there was no continuation of “D.R. Gupta & Sons HUF” after the demise of Shri D. R. Gupta in the year 1977 and the property got mutated in the name of all the legal heirs. In furtherance of such severance of status, the also parties determined the shares of each of the branch of the five brothers to be 1/5th as mentioned in the Memorandum of Settlement. Thus, even though no partition by metes and bounds took effect between the parties, a partition took place leading to severance of status of the undivided family into a divided family.
The respondent No. 1 is hereby declared as the Karta for the purposes of representing the “D.R. Gupta & Sons HUF” before the Competent Authority. Deficient Court fee be paid - there are no merit in the present appeal which is hereby dismissed.
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2023 (12) TMI 1366
Seeking grant of regular bail - illegal trade in psychotropic substances - Contraband item - inadmissible statements - no reasons to believe were recorded in writing - violation of Section 42 of the NDPS Act - HELD THAT:- Section 52-A of the NDPS Act prescribes that upon seizure of psychotropic substances, the officer shall approach the Magistrate, under whose presence and supervision the process of sampling will be conducted and certified to be correct. Though the application under Section 52-A of the NDPS Act has to be made without undue delay, no time limit for the same has been prescribed.
A Co-ordinate Bench of this Court in Arvind Yadav v. Govt. (NCT of Delhi) [2021 (7) TMI 1422 - DELHI HIGH COURT], refused the grant of bail in a case involving commercial quantity of cocaine despite the sampling not being carried out in the presence of a Magistrate.
Recently a Co-ordinate Bench of this Court in SURENDER KUMAR VERSUS CENTRAL BUREAU OF NARCOTICS (CBN) [2023 (8) TMI 1548 - DELHI HIGH COURT] has observed that Section 52-A of the NDPS Act is directory in nature and non-compliance of the same, in itself, cannot render the investigation invalid. Accordingly, the bail application of an accused charged of illegally selling narcotic medicines was dismissed by taking into account that the case involved commercial quantity of such medicines.
There is no mandatory time duration prescribed for compliance of Section 52-A of the NDPS Act. Though it is desirable that the procedure contemplated in Section 52-A of the NDPS Act be complied with at the earliest, mere delayed compliance of the same cannot be a ground for grant of bail. The applicant will have to show the prejudice caused on account of delayed compliance of Section 52-A of the NDPS Act - In the present case, the sampling of the seized psychotropic substances was carried out in the presence of the Magistrate and the accused persons and the samples were directed to be sent for testing. The applicant has failed to show the prejudice caused to him on account of the delayed compliance of Section 52-A of the NDPS Act.
Considering the facts and circumstances including the fact that commercial quantities of psychotropic substances have been recovered at the instance of the applicant, it is not possible to form a prima facie view at this stage, that the applicant is not guilty of the offences or that he would not commit similar offences if released on bail. Therefore, the twin conditions of Section 37 of the NDPS Act are not satisfied and bail cannot be granted to the applicant at this stage.
The present application is dismissed.
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2023 (12) TMI 1361
Violation of Human Rights - allegations of sexual harassment - Direction to Petitioner to supply information to the Respondents holding that the information sought by the Respondents does not fall under the exemption provided in the proviso to Section 24 of the Right to Information Act, 2005 - HELD THAT:- Considering the fact that the information requested is only about recruitment rules, thus bearing in mind the various judicial precedents, including the decision of this Court in titled Bimal Kumar Bhattacharya [2018 (3) TMI 1251 - DELHI HIGH COURT] as also the recent order of the Hon'ble Supreme Court in this Court is of the view that this is not a case which would involve any human rights violation and is accordingly not exempted by the proviso to Section 24 of the RTI Act, 2005.
The ED is exempted under section 24 of the RTI Act, 2005 from disclosing the said information. Accordingly, the impugned order dated 27th November, 2019 passed by the CIC is set aside.
In this case, the non-disclosure of information of allegations of sexual harassment, in the opinion of this Court, would fall clearly within the conspectus of human rights violations, as exempted by the proviso to Section 24 of the RTI Act, 2005. In view thereof, the ED is directed to disclose the information sought by the RTI Applicant/Respondent within eight weeks.
Petition disposed off.
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2023 (12) TMI 1360
Dishonour of Cheque - challenge to judgement of conviction and sentence - non-compliance with the conditions to deposit 20% of the compensation amount - Application for suspension of sentence and stay of proceedings based on insolvency proceedings under the Insolvency and Bankruptcy Code, 2016 - HELD THAT:- The fundamental facts in this petition is that the application by the petitioners herein are debtors application under section 94 of the Code. It was filed, after they were found guilty for offence under section 138//141 of NI Act. The Hon'ble Supreme Court in Mohanraj case [2021 (3) TMI 94 - SUPREME COURT] had unequivocally held that the proceedings under section 138/141 of NI Act will fall under the scope of moratorium referred in IBC subject to the exceptions mentioned in the Code.
The judgement of Mohanraj case [2021 (3) TMI 94 - SUPREME COURT] is in respect of corporate debtor, which filed application under section 9 of the IBC. In the said judgment, the Hon'ble Supreme Court has held that the proceedings initiated under section 138 of NI Act falls within the scope of Section 14(1)(a) of the Code. In that judgment, at paragraph 102, the Hon'ble Supreme Court has made it clear that interim moratorium in a corporate debtor's application will not extend to the natural persons, who are prosecuted under section 138/141 of NI Act. Section 14 of IBC will apply only to the corporate debtor, the natural persons mentioned in Section 141 of NI Act continue to be statutorily liable.
The Directors as Signatory or Guarantor or Person responsible for the affairs of the company, which has issued cheque to discharge its liability, can not have the advantage of their application to declare them as insolvent as an individual to seek moratorium. If such plea is entertained, then as observed by the Hon'ble Supreme Court, it will lead to absurdity. To demonstrate, for instance, in this case, if the interim moratorium under section 96 is extended to these petitioners, who are the representatives of the company, which is not a corporate debtor facing resolution process under the Code, then the first accused company will stand without a natural person to represent. Being a proceedings with penal action, there can be no substitution for the petitioners as the Directors of the first accused company.
As the Hon'ble Supreme Court held that the moratorium given to the corporate debtor under Chapter II will not cover the individuals, who are the Guarantors of Directors. Similarly, the moratorium given to an individual under Chapter III will not cover the proceedings initiated against them as Directors or Guarantors of any company, which is not a corporate debtor under this Code.
This Criminal Original Petition is dismissed.
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2023 (12) TMI 1358
Dishonour of Cheque - Challenge to the decree for money granted in the suit which was predicated on a dishonoured cheque - defendant resisted the suit contending that he never borrowed any money from the plaintiff - presumption u/s 118 of NI Act - HELD THAT:- No doubt, a strong presumption arises by the force of Section 118, ibid. in a case where the suit is filed based on a negotiable instrument. But, such a presumption is rebuttable. While considering the question as to how such a presumption can be rebutted, the Supreme Court in, BHARAT BARREL & DRUM MANUFACTURING COMPANY VERSUS AMIN CHAND PAYRELAL [1999 (2) TMI 627 - SUPREME COURT] has observed 'Once the defendant showed either by direct evidence or circumstantial evidence or by use of the other presumptions of law or fact that the promissory note was not supported by consideration in the manner stated therein, the evidentiary burden would shift to the plaintiff and the legal burden reviving his legal burden to prove that the promissory note was supported by consideration and at that stage, the presumption of law covered by Section 118 of the Act would disappear.'
The plaintiff has admitted that he has not produced any document to show the lending; he has not produced any document to show that he was in possession of a sum of Rs. 23 lakhs on 04.11.2012, the date of alleged lending; he has not produced any document to show that he was carrying on some business fetching him income on the relevant date; he has admitted that he had no bank account; he has also admitted that he is not an Income Tax assessee. His claim that his mother lent him a sum of Rs. 15 lakhs, has been proved to be false by his own document, viz., Ex.A.12, sale deed, which shows that his mother had sold the property six years ago for a paltry sum of Rs. 4 lakhs.
A reading of the cross-examination of P.W.1 would show that not even a single utterance of him in his proof affidavit and the plaint is true. Undoubtedly, the conduct of the defendant in not lodging a police complaint and not sending a reply to the legal notice militates against him. But, the presumption that is drawn from the silence on the part of the defendant cannot undo the damage done by the plaintiff in his own cross-examination as P.W.1. The evidence in cross-examination of P.W.1 leads us to firmly believe that the presumption under Section 118, ibid., stood rebutted by the force of such evidence of P.W.1 himself.
It is not required to agree with the Trial Court in granting a decree for payment of money - the judgment and decree of the Trial Court are set aside - appeal allowed.
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2023 (12) TMI 1357
Seeking grant of regular bail - application under Section 439 of the Code of Criminal Procedure, 1973 (CrPC) read with Section 36A(3) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) - right to be searched in the presence of a Gazetted Officer or a Magistrate - non-compliance of Section 50 of the NDPS Act.
HELD THAT:- The contention of learned APP for the State that the question of being search in the presence of the ‘nearest’ Gazetted Officer or Magistrate would arise only if the accused had exercised his option in terms of Section 50 of the NDPS Act, is not tenable.
The right of the accused, as contained in Section 50 of the NDPS Act is mandatory in nature and the same has been emphasized time and again in the various judicial precedents. The co-ordinate bench of this Court, in MOHD. JABIR VERSUS STATE OF NCT OF DELHI [2023 (3) TMI 1529 - DELHI HIGH COURT], has taken note that the word ‘nearest’ has been used in the statute with a certain intention.
The relevance of a notice under Section 50 of the NDPS Act and its mandatory compliance was clearly spelt out by the Hon’ble Supreme Court in State of Punjab v. Balbir Singh [1994 (3) TMI 173 - SUPREME COURT], wherein it was held that 'When such is the importance of a right given to an accused person in custody in general, the right by way of safeguard conferred under Section 50 in the context is all the more important and valuable. Therefore it is to be taken as an imperative requirement on the part of the officer intending to search to inform the person to be searched of his right that if he so chooses, he will be searched in the presence of a Gazetted Officer or a Magistrate. Thus the provisions of Section 50 are mandatory.'.
A perusal of the notice reflects that the word ‘nearest’ does not find any mention as stated hereinabove. The said word is in the language of the section itself. The raiding officer in the present case ought to have given the said option to the applicant. This Court is in agreement that the judgment of co-ordinate bench in Mohd. Jabir to the effect that the word ‘nearest’ has been used in the statute with a certain intention and cannot be ignored by the concerned Investigating Officer at the time of giving notice under Section 50 of the NDPS Act.
As per nominal roll dated 10.05.2023, the applicant has been in judicial custody for 01 year 05 months and 28 days. The investigation in the present case is complete, the chargesheet stands filed and the trial is underway. No useful purpose will be served by keeping the applicant in judicial custody any further.
The applicant is admitted to bail upon his furnishing a personal bond in the sum of Rs. 50,000/- alongwith two sureties of like amount to the satisfaction of the learned Trial Court/Link Court, further subject to fulfilment of conditions imposed - the present application is allowed.
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2023 (12) TMI 1352
Service of notice - HELD THAT:- Court notice be issued to the standing/nominated counsel for the State, who will obtain instructions and enter appearance - In case deposit in terms of interim order dated 16.01.2023 is not made, the respondents/authorities will proceed to enforce and execute the impugned judgment.
The Haryana State Pollution Control Board and the concerned authorities for the State of Haryana will carry out site inspection and ensure that no mining activities are being carried. Photographs of the site can be taken and filed. If required, satellite images will also be filed.
Re-list in the month of February 2024.
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2023 (12) TMI 1342
Exclusion of the period of 1854 days in computing the period of limitation for filing the Petition challenging the Award - defect of jurisdiction - Section 14 of the Limitation Act - HELD THAT:- The Applicant in the present case has failed to exercise due diligence and good faith. Further, the proceedings adopted by the Applicant viz. the Writ proceedings cannot be said to be proceeding suffering from “defect of Jurisdiction” or “any other causes of like nature”. It is not the submission of the Applicant/Petitioner that the Writ Court cannot interfere with the Arbitral Award. In the present case, the Writ Court chose not to interfere on account of alternate remedy.
In the decision of the Supreme Court in Zafar Khan [1984 (7) TMI 404 - SUPREME COURT] “Defect of Jurisdiction” has been construed as well as “other cause of like nature” and explanation (c) to Section 14 has also been referred to which provides misjoinder of parties or causes of action shall be deemed to be a cause of like nature with defect of jurisdiction. This expression must take its colour and content from the just preceding expression, “defect of jurisdiction”. In the present case, the Writ Petition challenging the Award cannot be termed as “defect of jurisdiction”.
There are much merit in the submission of the Counsel of Respondent No.1 that presuming Section 14 applies to the Arbitration Petition, the Arbitration Petition is not preferred within the prescribed period of limitation as the delay is of 166 days as the period between receipt of the Award and filing of the Writ Petition as well as the period between the rejection of the Writ Petition and filing of the SLP and the period between the dismissal of SLP and filing of the Arbitration Petition cannot be counted in the exclusion period under Section 14 of the Limitation Act. Thus, in any event the Arbitration Petition has been preferred beyond the permissible period of 120 days under Section 34 of the Arbitration Act.
There are no merit in the present Interim Application for exclusion of the period of 1854 days from 5 th April, 2017 till 1st November, 2022 in computing the period of limitation for filing the Petition challenging the Award dated 31st March, 2017 passed by the Facilitation Council constituted under the MSME Act. The delay beyond the permissible period of 120 days under Section 34(3) and proviso thereto of the Arbitration Act can in no event be condoned.
The Commercial Arbitration Petition under Section 34 of the Arbitration Act is dismissed as being barred by Limitation and is accordingly disposed of.
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2023 (12) TMI 1335
Scope of jurisdiction exercised by this Court under Section 37(2)(b) of the Arbitration Act - true purport and nature of the Term Sheet, based upon interpretation of its various clauses - HELD THAT:- Section 37 of the Arbitration Act, pertains to appealable orders and it provides for filing of an appeal before the Court, inter alia, to challenge an order granting or refusing interim measure under Section 17 of the Arbitration Act. In the very same provision under Section 37 (1)(c) of the Arbitration Act, an appeal can be filed against an order setting aside or refusing to set aside an arbitral award under Section 34 of the Arbitration Act.
So long as the learned Arbitrator has considered the relevant material and a plausible view has been adopted in the facts and circumstances of the case, this Court would be loathe to interfere with the order passed by the learned Arbitrator. This Court would not interfere with the order of the learned Arbitrator passed under Section 17 of the Arbitration Act, merely because another view is possible in the matter. The discretion exercised by the learned Arbitrator, based upon a plausible view and upon taking into consideration all relevant material, cannot be lightly interfered with by this Court exercising jurisdiction under Section 37(2)(b) of the Arbitration Act - This Court intends to consider the impugned order passed by the learned Arbitrator in this backdrop and based upon the material available on record, in the light of the rival submissions made on behalf of the parties.
The findings rendered by the learned Arbitrator that the Term Sheet was prima facie an agreement to enter into an agreement, was not even a plausible view. This Court finds that the learned Arbitrator took into consideration all the relevant material, including the clauses of the Term Sheet in detail, while rendering findings on the said aspect of the matter, which cannot be termed as wholly implausible. Therefore, on the said aspect of the matter, no ground is made out on behalf of the petitioner for holding that the finding rendered by the learned Arbitrator could be said to be perverse or illegal, to warrant exercise jurisdiction under Section 37 (2)(b) of the Arbitration Act.
Applying the law pertaining to the scope of jurisdiction while considering the present petition filed under Section 37(2)(b) of the Arbitration Act, akin to considering an Appeal from Order, this Court does not find any ground for interference with the impugned order and hence, the present petition deserves to be dismissed.
Petition dismissed.
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2023 (12) TMI 1323
Dishonour of Cheque - non-speaking order - requirement of speaking order to impose a condition to deposit the amount as per Section 148 of the Negotiable Instruments Act - HELD THAT:- In JJAMBOO BHANDARI VERSUS M.P. STATE INDUSTRIAL DEVELOPMENT CORPORATION LTD. AND ORS. [2023 (9) TMI 560 - SUPREME COURT] the Apex Court considered the powers of the appellate court under Section 148 of the Negotiable Instruments Act, and held that 'When an accused applies under S.389 of the CrPC for suspension of sentence, he normally applies for grant of relief of suspension of sentence without any condition. Therefore, when a blanket order is sought by the appellants, the Court has to consider whether the case falls in exception or not.'
In the light of the above principle laid by the Apex Court, it is the duty of the Appellate court to give reason for imposing the condition to deposit 20% of compensation for suspending the sentence. There cannot be any blanket order to deposit 20% of the compensation for suspending the sentence in all cases.
When a blanket order is sought by the appellants, the Court has to consider whether the case falls within the exception or not. The appellate court while suspending a sentence cannot pass a blanket order in all cases to deposit 20% of the fine or compensation without assigning any reason. Moreover, once the court has decided to order deposit as per Section 148(1) of the Negotiable Instruments Act, the amount of deposit ordered by the Court can be varied from the minimum 20% of the fine or compensation to a higher percent of the fine or compensation. That also shows that a speaking order is necessary. Even if the court is imposing 20% of the fine or compensation as a condition for suspending the sentence, in the light of the principle laid down by the Apex Court in Jamboo Bhandari's case (supra), a reason is necessary.
Thus, the Sessions court has not applied its mind before imposing 20% of the compensation amount. In the light of the dictum laid down by the Apex Court in Jamboo Bhandari's case, the above order is unsustainable. Moreover, there is no order requiring the appellant to execute a bond for suspending the sentence. This court called for the remarks of the appellate court for not directing the appellant to execute bond.
The direction to deposit 20% of the compensation amount before the trial court as per order dated 24.06.2023 in CMP No. 44/2023 in Crl.Appeal No. 109/2023 on the file of the Additional District & Sessions Judge, Pala is set aside - criminal case allowed.
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2023 (12) TMI 1236
Recovery of dues - priority over charges - whether the different departments of the State including Excise and Revenue will have priority over the secured creditors’ debt? - HELD THAT:- It would be evident from the replies filed by the respondents that they have nowhere disputed the lien of the State Bank of India as per Section 26 D noted and entered in the CERSAI (Annexure P-2), dated 06.03.2013, which clearly establishes the fact that the petitioner-Bank is not only a secured creditor but has created the first charge over the property in question as far as back in the year, 2013. Whereas the charge of respondents No. 1 and 2 had been created and reflected in revenue record vide rapat No. 459, dated 09.07.2015 and that of respondent No. 3 only vide Rapat No. 173, dated 05.02.2018.
Once the petitioner is a secured creditor and has moreover created the first charge over the property, then obviously, it has the first right to realise its dues and this question is no longer res integra in view of the authoritative pronouncement of the Hon'ble Supreme Court in Punjab National Bank Vs. Union of India & Ors. [2022 (2) TMI 1171 - SUPREME COURT].
The legal position has thereafter been reiterated in a recent judgment of this Court in Mankind Life Sciences Private Limited vs. The State of Himachal Pradesh & Anr., [2023 (10) TMI 867 - HIMACHAL PRADESH HIGH COURT], wherein it was held [2022 (2) TMI 1171 - SUPREME COURT].
This Court is left with no other option, but to allow the instant petition by directing respondents to remove the red entry qua the property in question made in the revenue record i.e. Rapat No. 459, dated 09.07.2015 and Rapat No. 173, dated 05.02.2018 forthwith.
The instant petition is allowed.
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2023 (12) TMI 1235
Dishonour of Cheque - rebuttal of presumption - main reason asserted both for dislodging execution of Ext.P1 and lack of consideration is that the similarity of handwriting in it with that in Ext.X1. PW1 has no case that Ext.P1 was in the handwriting of the petitioner - HELD THAT:- The petitioner did not adduce any evidence. It is true that in order to rebut the presumption in respect of a cheque, the accused can rely on the evidence and materials submitted by the complainant. The only thing is that the accused must be able to substantiate his case by preponderance of probabilities. The case set up by the petitioner during the cross-examination of PWs.1 to 3 and also in his answers to the question put to him under Section 313(1)(b) of the Code is that the cheque was issued as a security in respect of the transactions between himself and the 1st respondent - Lack of signature of PW1 in two pages of Ext.P6 does not assume much importance since its execution is proved by the evidence of PW3 and it is in favour of the 1st respondent. It was after considering the aforesaid evidence in detail the courts below concurrently held that the petitioner failed to rebut the presumption available under Section 139 of the N.I. Act in respect of Ext.P1.
The power of revision under Section 401 of the Code is not wide and exhaustive. The High Court in the exercise of the powers of revision cannot re-appreciate evidence to come to a different conclusion, but its consideration of the evidence is confined to find out the legality, regularity and propriety of the order impugned before it. When the findings rendered by the courts below are well supported by evidence on record and cannot be said to be perverse in any way, the High Court is not expected to interfere with the concurrent findings by the courts below while exercising revisional jurisdiction.
This Court is not expected to substitute the concurrent finding of the court below with a different view unless such findings are perverse and against the evidence - the revision lacks merits and liable to be dismissed - the revision petition is dismissed.
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2023 (12) TMI 1203
Dishonour of Cheque - restoration of complaint - whether the negligence either on the part of the petitioner or his counsel in prosecution of the complaint can be a ground for not restoring the complaint? - HELD THAT:- The present complaint pertains to cheques total amounting to Rs.89,00,000/- which were dishonoured due to insufficient funds. There is no dispute by the respondent regarding the fact that the said cheques were signed and issued by him and also regarding the dishonour of the cheques on the ground 'Funds Insufficient'. The petitioner is stated to be a qualified doctor. The petitioner was under the impression that he would be adequately represented by his previous counsel. The various orders passed by the trial court are reflecting that the petitioner and his counsel were not diligent in the prosecution of the complaint. However, mere negligence either on the part of the petitioner or his counsel in prosecution of the complaint should not be a ground for not restoring the complaint. The petitioner cannot be allowed to be suffer due to the negligence of his previous counsel.
The impugned order dated 07.12.2016 passed by the trial court is set aside - the complaint is ordered to be restored to its original number before the trial court subject to the cost of Rs.25,000/- to be paid by the petitioner to the respondent on the next date of hearing before the trial court.
The petitioner and the respondent are directed to appear in person before the trial court on 15.01.2024 at 2:30 p.m. for further directions.
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