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Indian Laws - Case Laws
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2023 (11) TMI 52
Dishonour of Cheque - Veracity of the said ‘Authority Letter’, the execution thereof and the phraseology used therein - HELD THAT:- Records reveal that the petitioner has nowhere disputed the execution of a ‘Promissory Note’, in his handwriting, under his signatures, acknowledging his liability of the debt to the respondent no. 2 and his wife. Similarly, the petitioner has also nowhere disputed the factum of issuance of any of the aforesaid 9 cheques or his signatures thereon or his handwriting thereon. So much so, the petitioner has also nowhere denied that there is no liability/ debt against the aforesaid 9 cheques. It is also nowhere denied that all the aforesaid 9 cheques were [i] pertaining to the very same transaction; [ii] issued on the same date; and [iii] returned on the same date by the very same Bank - A perusal of the pleadings made by the petitioner herein also disclose that there is no such averment exhibiting any special cause and/ or reason made anywhere before this Court to exercise its inherent powers under Section 482 CrPC.
With respect to issue(s) of the execution of the ‘Authority Letter’, the phraseology used therein as also the same being improperly executed, non-filing of the complaint under Section 138 NIA by the wife of the respondent no. 2, respondent no. 2 not being either the payee or the holder in due course, and non-certification of the bank memo or the return slip by the bank, in the opinion of this Court, the aforesaid being disputed questions of facts, require trial and due adjudication by the learned Trial Court and not by this Court and that too at this stage, whence the learned MM is already seized of the complaint and has merely passed the summoning order.
In the opinion of this Court, if this Court proceeds to consider the aforesaid issues, it would tantamount to holding a mini trial, which as per trite law and under the facts and circumstances involved herein, is per se not permissible under Section 482 CrPC, especially whence the trial before the learned MM is ongoing. This Court cannot substitute or carry out the functions of the learned Trial Court. In any event, considering that the proceedings before the learned MM are at a very nascent stage, it would be improper for this Court to enter the merits of the Complaint Case.
In the opinion of this Court, the petitioner has not been able to make out a case for invoking its powers under 482 of the CrPC. More so, whence the present petition has been filed on technical grounds wherein almost more than 2 years have elapsed and the issues raised therein are a matter of trail. As per this Court, the present petition seems to be motivated to somehow delay and derail the proceedings/ trial before the learned MM. Thus, the present petition is a fit one calling for not only dismissal but also for imposition of costs.
The present petition along with the application is dismissed with costs of Rs. 50,000/- to be paid in favour of the Delhi State Legal Services Committee within a period of two weeks.
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2023 (11) TMI 1
Dishonor of Cheque - legally enforceable debt or not - Transaction in violation of Section 269-SS of Income Tax Act - unaccounted cash - Can such tranaction be permitted to be enforced, by institution of proceedings under Section 138 of the Negotiable Instruments Act ? - HELD THAT:- Acceptance of an amount exceeding Rupees Twenty Thousand in cash attracts penalty under Section 271-D of the Act of 1961 but such acceptance does not nullify the transaction. Infact, the penalty can be waived on showing reasonable cause. Hence, violation of Section 269-SS by the drawer of the cheque would not render the amount in question non-recoverable.
A transaction not reflected in the books of accounts and/or Income Tax returns of the holder of the cheque in due course can be permitted to be enforced by instituting proceedings under Section 138 of the Act of 1881 in view of the presumption under Section 139 of the Act of 1881 that such cheque was issued by the drawer for the discharge of any debt or other liability, execution of the cheque being admitted. Violation of Sections 269-SS and/or Section 271-AAD of the Act of 1961 would not render the transaction unenforceable under Section 138 of the Act of 1881.
The decisions in Krishna P. Morajkar [2013 (7) TMI 1163 - BOMBAY HIGH COURT], Bipin Mathurdas Thakkar and Pushpa Sanchalal Kothari [2015 (2) TMI 1351 - BOMBAY HIGH COURT] lay down the correct position and are thus affirmed. The decision in Sanjay Mishra [2009 (2) TMI 901 - BOMBAY HIGH COURT] with utmost respect stands overruled.
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2023 (10) TMI 1510
Dismissal of application of the Appellants filed for the appointment of an arbitrator Under Section 11 of the Arbitration & Conciliation Act, 1996 - District Consumer Forum dismissed this application on the ground that the complainant has invoked a public law remedy before a "Judicial Authority", under a beneficial legislation for consumers, which is the Consumer Protection Act, 2019.
Whether the dispute between the parties is arbitrable, and once a party has availed the remedy before a public forum under a special beneficial legislation, can it be compelled to go for arbitration?
HELD THAT:- It is absolutely clear that the builders/owners had to hand over the fully constructed house/villa to the buyer, within three years from the date of the agreement i.e., 27.08.2013, with a six months grace period. In other words, this constructed house/villa had to be handed over to the buyer/consumer on or before February 27, 2017. This has admittedly not been done. What happened instead is that in 2020, i.e., after three years from the date when the constructed house/villa had to be handed over to the buyer, the builder sends a "Termination Notice" to the buyer and terminates the agreement, ostensibly on the ground that the buyer had not signed "the Construction Agreement".
The arbitrability of a dispute has to be examined when one of the parties seeks redressal under a welfare legislation, in spite of being a signatory to an arbitration agreement. 'The Consumer Protection Act' is definitely a piece of welfare legislation with the primary purpose of protecting the interest of a consumer. Consumer disputes are assigned by the legislature to public fora, as a measure of public policy. Therefore, by necessary implication such disputes will fall in the category of non-arbitrable disputes, and these disputes should be kept away from a private fora such as 'arbitration', unless both the parties willingly opt for arbitration over the remedy before public fora.
This Court in a series of decisions, while considering both the provisions in the Consumer Protection Act, 1986 and the Arbitration Act, 1996, has held that the Consumer Protection Act being a special and beneficial legislation, the remedies provided therein are special remedies and a consumer cannot be deprived of them should he choose to avail such a remedy, in spite of an arbitration agreement between the parties. It is a remedy provided to the consumer where the consumer finds a defect in either goods or services provided to him and therefore seeks a redressal of his grievances before the consumer forum provided to him by the legislature.
Conclusion - The Consumer Protection Act is definitely a piece of welfare legislation with the primary purpose of protecting the interest of a consumer. Consumer disputes are assigned by the legislature to public fora, as a measure of public policy.
The application Under Section 11 of the Arbitration Act, 1996 for appointment of an arbitrator, was not maintainable in the present case - appeal dismissed.
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2023 (10) TMI 1503
Rejection of impleadment application filed by the appellant - Substitution of appellant as the legal representative of the deceased plaintiff - suit pending for trial for past 41 years.
Whether the impugned order passed by the High Court whereby the order passed by trial court allowing the impleadment application filed by the appellant herein had been rejected, is to be sustained or set aside? - HELD THAT:- The records would clearly indicate that Manoj Kumar Jain himself had filed an application, accompanied by affidavit before the Revisional Court in Civil Revision No.2 of 2010, stating thereunder that he would not press the application filed by him for substitution and this was sufficient for the High Court to have accepted the plea of the appellant or in other words, it should have sustained the order of trial court and ordered for appellant being brought on record as legal representative of deceased Urmila Devi.
The impugned order which has resulted in rejection of the application filed by the appellant to be brought on record as legal representative of Urmila Devi if sustained would result in the estate of deceased plaintiff not being represented, as a consequence of which suit would abate or would be put to a silent death by the defendants without claim made in the suit being adjudicated on merits. Hence, question is answered in favour of the appellant and against respondents and therefore, the impugned order is set aside.
Whether any further direction or directions requires to be issued for concluding the proceedings in a time bound manner on account of Suit pending for trial for past 41 years? - HELD THAT:- The very fact of the pendency of the present suit No. 2 of 1982, in the instant case, for the past 41 years is reflective of the fact, as to how some of the civil courts are functioning and also depicting how stakeholders are contributing to such delays either directly or indirectly. The procedure that is being adopted by the courts below or specifically the trial courts is contrary to the express provisions of the CPC. It can also be noticed that there are party induced delays. It is laid down under Orders VIII Rule (1) that a defendant shall at or before the first hearing or within 30 days, or 90 days as the court may permit, present a written statement of his defence. In most cases, there would be no difficulty in presenting such a written statement on the date fixed, and no adjournment should be given for the said purpose except for a good cause shown, and in proper cases, costs should be awarded to the opposite side, namely realistic costs. However, this is seldom found.
It is high time that the presiding officers of all the trial courts across the country strictly enforce the time schedule prescribed under sub-rule (1) of Rule (1) of Order VIII in its letter and spirit rather than extending the olive branch on account of said provision being held directory to its illogical end even where circumstances of a particular case does not warrant time being enlarged. Although Order XVII of the CPC indicate under the heading “adjournments”, making it explicitly clear the procedure which requires to be adopted by the civil courts in the matter of trial, as evident from plain reading of the said provision would reveal, seems to have been completely lost sight of by all the stakeholders, which can be held as one of the root cause for delay in disposal of civil cases.
Conclusion - i) The High Court's order set aside by reinstating the trial court's decision on substitution. ii) It is imperative to note that about 6 per cent of the population in India is affected by litigation, in such a scenario the courts would play an important role in the life of a nation governed by Rule of Law.
Petition disposed off.
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2023 (10) TMI 1500
Interpretation of statute - amendment to the Sugarcane (Control) Order 1966 - Dismissal of the writ petition holding that the omitted Clause 5A of the Sugarcane Control Order, 1966 can be invoked against the members of the Appellant Association - HELD THAT:- The sheet anchor of the argument of the appellants is that after the amendment in 2009 to the Sugarcane Control Order, deleting the Statutory Minimum Price and substituting Fair and Remunerative Price consequently omission of Second Schedule with effect from 22.10.2009 leads to a situation where the first respondent has no jurisdiction to determine the "L" Factor for the sugar seasons 2004-2005 to 2008-09. It is further contended that omission of a Second Schedule with effect from 22.10.2009 is a deletion and no action can be taken on deleted / omitted provision since Section 6 of the General Clauses Act would have no application to a Control Order which is neither an enactment nor a regulation in terms of Section 6 of the General Clauses Act.
The Writ Court, taking into consideration the scope of Essential Commodities Act, the object of the Sugarcane Control Order, the decisions of the Hon'ble Supreme Court in Union of India v. Cynamide India Ltd and another [1987 (4) TMI 478 - SUPREME COURT] and K. Ramanathan v. State of Tamil Nadu and another [1985 (2) TMI 249 - SUPREME COURT], observed that no attempt can be permitted to be made to dilute the object and if done, would be against the public interest.
The right of cane growers to be entitled for Statutory Minimum Price (SMP) is a statutory right. It accrues on the date when supply of sugarcane is made to the sugar mills. The Central Government, though thought fit to introduce a new system of determining fair price and brought into effect Fair Remunerative Price, that would not in any manner affect the rights of cane growers to be entitled to SMP, which was very much available in the Sugarcane Control Order at the relevant time during which supply of sugarcane has been done.
Nowhere in the amendment in the year 2009, there is any such intention to obliterate or to deny the benefit which has accrued in favour of the cane growers. The Central Government is right in its stand that the Sugarcane Control Amendment Order, 2009 dated 22.10.2009 is prospective with effect from the date of its publication in the Official Gazette and no time limit has been fixed for arriving at "L Factor. Such a ground cannot be raised by the appellant to deny and defeat the vested rights of the cane growers. The Writ Court has considered all the aforesaid aspects in proper perspective and this Court, in exercise of is appellate jurisdiction, finds no reason to interfere with the order of the Writ Court and accordingly the writ appeal is liable to be dismissed.
Conclusion - i) The omission of Clause 5A and the Second Schedule does not retroactively affect the rights of sugarcane growers to receive additional pricing for supplies made before the amendment. ii) Section 6 of the General Clauses Act applies to subordinate legislation, preserving accrued rights despite the omission of provisions.
Appeal dismissed.
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2023 (10) TMI 1492
Challenge to notice issued for cancellation of registration and the order passed - appeal dismissed for delay occasioned and also for not availing the Amnesty Scheme, as offered by the State - HELD THAT:- In the present case, it is a fact that the order issued does not show any reason nor does the notice raise any allegation against the petitioner of not having filed returns for a continuous period of six months; as stated by the learned counsel. Only in the circumstance of no reasons having been shown, we are of the opinion that the order has to be interfered with. The order also does not clearly indicate the failure to file the return despite the fact that the petitioner has not filed any reply to the show cause notice issued.
Considering fact that there was an Amnesty Scheme in operation which has now expired, the Annexure-1 order set aside conditionally on the specific undertaking made by the petitioner.
Conclusion - The order set aside conditionally, based on the petitioner's undertaking to pay the entire tax, interest, and penalty within one month and to file the necessary returns.
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2023 (10) TMI 1470
Consideration of exceptions to Section 499 IPC before summoning an accused in a defamation case - Whether the appellant has made out any case for interference with the judicial orders of the Magistrate and the learned Judge under challenge? - Whether a company can be prosecuted for defamation when the alleged defamatory statements are made not by it (the company) but by its authorised agent? - whether the benefit of the Fourth Exception to section 499, IPC, as claimed, should be accorded to the appellant?
HELD THAT:- In M.A. Rumugam v. Kittu Alias Krishnamoorthy [2008 (11) TMI 755 - SUPREME COURT], the respondent filed a private complaint against the appellant for commission of the offence of defamation under section 500, IPC. Taking cognizance of the said complaint, the Magistrate issued summons to the appellant. Aggrieved thereby, he filed a petition before the High Court of Judicature at Madras praying to call for the records pertaining to the complaint petition filed by the respondent and to quash the same - This Court had the occasion to consider the applicability of the provisions of section 482, Cr. PC for quashing of a complaint petition filed by the respondent against the appellant under section 500, IPC. While dismissing the appeal, the Court went on to apply the well-settled principle of law that those who plead exception must prove it and, therefore, the burden of proof that his action was bona fide would, thus, be on the appellant alone.
The first complaint was lodged by a distant relative of the deceased accusing three persons of murder whereas the second complaint was lodged by the appellant accusing the respondent no.1 of murdering his uncle. By separate orders, the Sub-Divisional Magistrate directed a Magistrate, First Class, to conduct judicial inquiry. Separate reports were submitted by the Magistrate, First Class. In his first report, he opined that a prima facie case to proceed against the three accused persons had been made out whereas, in his second report, he opined that no prima facie case to proceed against the first respondent had been made out. The Sub-Divisional Magistrate, perusing the second report, dismissed the complaint of the appellant against the respondent no.1 without assigning any reason - the respondent no.1 preferred a revision application before the High Court challenging the direction of the Sessions Judge. The same was allowed by a Single Judge of the High Court and upon grant of certificate under Article 134(1)(c) of the Constitution, the matter was carried to this Court. It was held that upon a finding of a prima facie case, the Magistrate was bound to issue process despite the charged person having a defence. Further, it was held that the matter was to be decided by an appropriate forum at the appropriate stage, and issuance of process could not be refused.
While there are several decisions where this Court has consistently laid down the law in one particular line that it is for the Magistrate to consider the Exceptions to section 499, IPC for extension of benefit thereof at the trial when a defence is pleaded by the party seeking to avail the same and upon the burden of proof being discharged by him and that such Magistrate while deciding the question purely from the point of view of the complainant may not advert to the possible defence of the accused at the time of exercising power under section 202, the other line of decisions seem to proceed on the premise that there is no bar in considering the Exceptions if the accused, even without appearing before the Magistrate in response to the summoning order, lays a challenge thereto under section 482, Cr. PC and satisfies the relevant High Court, by referring to the complaint itself and the statements of the complainant and his witness, that the facts alleged (even if deemed to be true) do not constitute an offence and hence, there was no sufficient ground for proceeding.
Adverting to the aspect of exercise of jurisdiction by the High Courts under section 482, Cr. PC, in a case where the offence of defamation is claimed by the accused to have not been committed based on any of the Exceptions and a prayer for quashing is made, law seems to be well settled that the High Courts can go no further and enlarge the scope of inquiry if the accused seeks to rely on materials which were not there before the Magistrate - the tests laid down for quashing an F.I.R. or criminal proceedings arising from a police report by the High Courts in exercise of jurisdiction under section 482, Cr. PC not being substantially different from the tests laid down for quashing of a process issued under section 204 read with section 200, the High Courts on recording due satisfaction are empowered to interfere if on a reading of the complaint, the substance of statements on oath of the complainant and the witness, if any, and documentary evidence as produced, no offence is made out and that proceedings, if allowed to continue, would amount to an abuse of the legal process. This too, would be impermissible, if the justice of a given case does not overwhelmingly so demand.
Appeal dismissed.
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2023 (10) TMI 1453
Rejection of application of the Chinese University of Hong Kong for grant of patent - Interpretation of "diagnostic" methods in the context of patent law - scope of words “diagnostic, therapeutic” after the word “prophylactic” in Section 3(i) - HELD THAT:- The language of Section 3(i) uses the expression “diagnostic...or other treatment of human beings” and thereby appears to point in the direction of examining embodiments or use cases of processes to determine if they are diagnostic. Nonetheless, it should not be lost sight of that patent eligibility is decided at the threshold by examining claims that could have multiple use cases. Consequently, in the context of diagnostic processes, I am of the view that the embodiments of a claimed invention are relevant only for the purpose of ascertaining whether the process of the claimed invention per se points to a diagnosis for treatment. If such process does not uncover pathology for any reason, it would not be diagnostic for purposes of Section 3(i).
What is determinative, therefore, of whether a process is diagnostic is to ask the question whether the process is inherently and per se capable of identifying the disease, disorder or condition for treatment of the person. It bears repetition that such capability of the process should, in turn, be determined by assuming that a person(s) skilled in the art, including a medical doctor, examines the results. If the person(s) skilled in the art would not be in a position to diagnose the disease, disorder or condition, as the case may be, on the basis of the process because the process is not designed to diagnose diseases, disorders or conditions, such process, whether labelled as screening or anything else, would not qualify as diagnostic for purposes of Section 3(i) - The corollary would be that the Controller would be required to make this determination on a case- by-case basis. Into which category, the claimed invention falls remains to be considered.
It cannot be concluded that the process described by the claimed invention is not diagnostic because neither definitive nor comprehensive diagnosis is a prerequisite to qualify as diagnostic. Once it is concluded that the claims are patent ineligible, it is not necessary to deal with the other grounds of decision, such as lack of inventive step, and sufficient to record that the impugned order does not warrant interference.
Application dismissed.
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2023 (10) TMI 1449
Seeking a direction from this Court to the Registry of this Court for releasing the statutory deposit (Rs.7.5 crores) along with the accrued interest thereon - HELD THAT:- The Registry is directed to release the amount of Rs.7.5 crores along with interest accrued thereon in favour of the Respondent.
Application disposed off.
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2023 (10) TMI 1402
Seeking grant of interim bail to facilitate the undertaking of necessary medical tests and treatment under the supervision of his personal physician - HELD THAT:- This Court places the health and well-being of an individual as the foremost consideration, irrespective of the gravity of the alleged offense. It's important to recognize that custody during the investigative phase should not be perceived as punitive. Every individual has the inherent right to receive comprehensive and effective medical care. This Court firmly upholds the belief that individuals in custody with serious health issues should be granted access to adequate and effective medical treatment. The exercise of discretion in granting interim bail on medical grounds should not be restricted to circumstances where the person's life is in immediate peril. Moreover, there is no conflicting medical report indicating that the petitioner's surgery is unnecessary. The undisputed fact remains that the petitioner is suffering from specific ailments that demand medical attention, particularly regarding his right eye.
Considering the painful and pressing nature of the petitioner's reported health conditions, and without delving into the merits of the case, this Court is inclined to grant interim bail solely for the purpose of allowing the petitioner to undergo the necessary medical examination. The medical report clearly indicates that the petitioner requires cataract surgery on his right eye. Therefore, it is a reasonable proposition to permit him to seek treatment at the same hospital where he had the surgery for his left eye.
The petitioner/A.37 is entitled to interim bail on medical grounds subject to fulfilment of conditions imposed - petition allowed.
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2023 (10) TMI 1399
Dsihonour of Cheque - insufficiency of funds - accused denied the incriminating questions in the examination under Section 313 of the Code of Criminal Procedure - HELD THAT:- In the case on hand, admittedly, the complainant is a firm. The complaint is filed by the firm in its name and is represented by its Branch Manager, who has been authorised as per Ext.P10 resolution. There is also a specific assertion in the complaint that PW1 is competent to represent the firm - this Court is of the view that the finding of the learned Magistrate that PW1 is incompetent to file the complaint is erroneous and unsustainable in law.
In K. BASHEER VERSUS C.K. USMAN KOYA AND ORS. [2021 (3) TMI 1228 - KERALA HIGH COURT], this Court has held that no particular form is prescribed under the Act concerning a notice under Section 138(b) of the Act, except that the payee or holder in due course should make a demand for the payment of the amount of money within 30 days from the receipt of intimation from the bank regarding the return of the cheque and the Court cannot legislate by prescribing a particular form and cannot require that the nature of the transaction leading to the issuance of cheque be disclosed in the notice when the statute does not provide for it.
In the present case, at the risk of repetition, it is reiterated that the complainant had instituted the complaint through PW1, who is authorised to file the complaint. In the trial, the complainant examined PWs1 and 2 and marked Exts.P1 to P12. PW2, in clear terms, testified that he is aware of the transactions between the complainant firm and the accused - the complainant has discharged its initial onus of proof by satisfying the concomitants constituting the ingredients under Section 138 of the Act and has shifted the reverse onus of proof onto the shoulders of the accused.
Admittedly, the accused had not sent a reply notice. Instead, the accused has marked Ext.D1 receipts in evidence to substantiate his payments to the complainant. Ext.D1 receipts corroborate the testimonies of PWs. 1 and 2 and Ext.P11 statement that the accused had business transactions with the complainant.
On a comprehensive re-appreciation of the materials placed on record, particularly the oral testimonies of PWs 1 and 2 and Exts.P1 to P12, this Court finds that the accused has failed to discharge the reverse onus of proof under Section 139 of the Act and, therefore, the finding of the learned Magistrate is erroneous. Consequently, the accused is liable to be convicted for the offence under Section 138 of the Act.
In DAMODAR S. PRABHU VERSUS SAYED BABALAL H. [2010 (5) TMI 380 - SUPREME COURT], the Honourable Supreme Court has held that, unlike other forms of crime, the punishment under Section 138 of the Act is not a means of seeking retribution but a means to ensure payment of money. The complainant's interest lies primarily in recovering the money rather than seeing the accused being incarcerated. While passing an order of sentence for the offence under Section 138, the courts must keep the compensatory aspect in mind rather than giving priority over the punitive part.
This Court deems it justifiable to sentence the accused to undergo imprisonment for one day and pay compensation to the complainant with a default sentence - the impugned order is set aside - appeal is allowed.
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2023 (10) TMI 1375
Pre-litigation Mediation and Settlement - Order VII, Rule 11 of the Code of Civil Procedure, 1908 - HELD THAT:- In the present case, it is an accepted fact that an urgent interim relief has been prayed for and the condition that the plaint "contemplates" an urgent interim relief is satisfied. Therefore, the impugned judgment/order of the Delhi High Court, which upholds the order of the District Judge (Commercial Court)-01, South District at Saket, New Delhi dated 06.02.2023, rejecting the application under Order VII, Rule 11 of the Code, is correct and in accordance with law.
When a plaint is filed under the CC Act, with a prayer for an urgent interim relief, the commercial court should examine the nature and the subject matter of the suit, the cause of action, and the prayer for interim relief. The prayer for urgent interim relief should not be a disguise or mask to wriggle out of and get over Section 12A of the CC Act. The facts and circumstances of the case have to be considered holistically from the standpoint of the plaintiff. Non-grant of interim relief at the ad-interim stage, when the plaint is taken up for registration/admission and examination, will not justify dismissal of the commercial suit under Order VII, Rule 11 of the Code; at times, interim relief is granted after issuance of notice. Nor can the suit be dismissed under Order VII, Rule 11 of the Code, because the interim relief, post the arguments, is denied on merits and on examination of the three principles, namely, (i) prima facie case, (ii) irreparable harm and injury, and (iii) balance of convenience. The fact that the court issued notice and/or granted interim stay may indicate that the court is inclined to entertain the plaint.
The proposition that the commercial courts do have a role, albeit a limited one, should be accepted, otherwise it would be up to the plaintiff alone to decide whether to resort to the procedure under Section 12A of the CC Act. An `absolute and unfettered right' approach is not justified if the pre-institution mediation under Section 12A of the CC Act is mandatory, as held by this Court in PATIL AUTOMATION PRIVATE LIMITED AND ORS VERSUS RAKHEJA ENGINEERS PRIVATE LIMITED [2022 (8) TMI 1494 - SUPREME COURT] - The words `contemplate any urgent interim relief' in Section 12A(1) of the CC Act, with reference to the suit, should be read as conferring power on the court to be satisfied. They suggest that the suit must "contemplate", which means the plaint, documents and facts should show and indicate the need for an urgent interim relief.
The present special leave petition is dismissed.
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2023 (10) TMI 1374
Rejection of plaint under Order VII Rule 11(d) for non-compliance of Section 12A of the Commercial Courts Act, 2015 - suit for recovery of arrears of rent with interest - whether the learned DJ could have dismissed the suit only on the ground that the appellant has not complied with Section 12-A of the CCA? - HELD THAT:- It is settled law that that in terms of the judgment Patil Automation Pvt. Ltd. [2022 (8) TMI 1494 - SUPREME COURT], the compliance of Section 12-A of the CCA is mandatory unless urgent relief is contemplated. A notification has been issued by the Government of India on July 03, 2018 by which the Central Government has made rules in respect of Commercial Courts (Pre-Institution of Mediation and Settlement) Rules, 2018 as contemplated under sub-section 21A read with sub-section (1) of Section 12-A of the CCA.
The sub-section 2 of Section 12-A mandate the Central Government may by notification authorise the authorities constituted under the Legal Services Authorities Act, 1987 for the purposes of Pre-Institution Mediation - In the present case, the appellant has not made his claim in terms of the notification of July 03, 2018 before the District Legal Services Authorities (DLSA) but had approached the DHCMCC(S) which held the proceedings on three occasions and the defendant/respondent despite service did not appear, resulting in Non-starter report being submitted by the DHCMCC. This report was not accepted by the learned DJ as the report is not that of DLSA.
The issue which falls for consideration is whether the learned DJ was right in rejecting the plaint only on the ground that the appellant has approached DHCMCC(S) and not DLSA, by invoking the provisions of Order VII Rule 11(d). It is true that the provisions of the Section 12-A of the CCA specifies Pre-Institution Mediation as mandatory, in the sense that any litigation must be preceded by an attempt on the part of the parties to settle their inter se dispute, but the fact that the appellant had invoked the process of mediation before the DHCMCC(S) under the aegis of the Delhi High Court and the defendant/respondent did not appear in the proceedings, resulting in a Non-starter report would surely be construed to mean that an attempt has been made by the appellant to settle his dispute with the defendant/respondent, amicably which failed.
So, the DHCMCC(S) being a court-annexed mediation centre though under the Mediation Act, 2023 and not under the CCA Act, we are of the view that there has been a compliance of the spirit underlying Section 12A of the CCA. The issue can be seen from another perspective as the respondent had neither appeared before the DHCMCC(S) nor before the learned District Judge, despite service, the likelihood of effective pre-litigation mediation to be undertaken under the aegis of DLSA is highly unlikely as the respondent/defendant will not appear making it a futile exercise.
The impugned order/judgment dated May 15, 2023 rejecting the plaint under Order VII Rule 11(d) is set aside - Appeal allowed.
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2023 (10) TMI 1372
Seeking grant of bail - Unnatural death of a lady - proceeding has been started under Sections 304-B/34 and 120-B of the Indian Penal Code - Charges have been framed and trial has been commenced without the husband being arrested and it is submitted on behalf of the State that he is absconding - HELD THAT:- The question of grant of bail to a co-accused person cannot made dependent upon surrender of another accused who is described as the main accused person in this case.
The imposition and subsequent adhering to the condition of surrender of the husband of the deceased would not be necessary for grant of bail to the appellant - the impugned order modified and it is directed that the appellant may be released on bail in terms of the order(s) of the High Court but the condition which requires prior surrender of husband of the deceased should not be insisted upon for enlarging the appellant on bail.
Appeal allowed.
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2023 (10) TMI 1371
Murder - Death due to poisoning - onus to prove - Failure on the part of the appellant-convict in offering any plausible explanation in his further statement recorded u/s 313 of CrPC - shifting the burden on the accused husband to explain what had actually happened on the date his wife died - whether the High Court committed any error in passing the impugned judgment and order? - HELD THAT:- What lies at the bottom of the various rules shifting the evidential burden or burden of introducing evidence in proof of one's case as opposed to the persuasive burden or burden of proof, i.e., of proving all the issues remaining with the prosecution and which never shift is the idea that it is impossible for the prosecution to give wholly convincing evidence on certain issues from its own hand and it is therefore for the accused to give evidence on them if he wishes to escape. Positive facts must always be proved by the prosecution. But the same rule cannot always apply to negative facts. It is not for the prosecution to anticipate and eliminate all possible defences or circumstances which may exonerate an accused. Again, when a person does not act with some intention other than that which the character and circumstances of the act suggest, it is not for the prosecution to eliminate all the other possible intentions.
A manifest distinction exists between the burden of proof and the burden of going forward with the evidence. Generally, the burden of proof upon any affirmative proposition necessary to be established as the foundation of an issue does not shift, but the burden of evidence or the burden of explanation may shift from one side to the other according to the testimony. Thus, if the prosecution has offered evidence which if believed by the court would convince them of the accused's guilt beyond a reasonable doubt, the accused is in a position where he should go forward with counter-vailing evidence if he has such evidence. When facts are peculiarly within the knowledge of the accused, the burden is on him to present evidence of such facts, whether the proposition is an affirmative or negative one - although not legally required to produce evidence on his own behalf, the accused may therefore as a practical matter find it essential to go forward with proof. This does not alter the burden of proof resting upon the prosecution
Prima facie in the context of section 106 of Evidence Act - HELD THAT:- Section 106 of the Evidence Act would apply to cases where the prosecution could be said to have succeeded in proving facts from which a reasonable inference can be drawn regarding death - The presumption of fact is an inference as to the existence of one fact from the existence of some other facts, unless the truth of such inference is disproved - In the case on hand it has been established or rather proved to the satisfaction of the court that the deceased was in company of her husband i.e., the appellant-convict at a point of time when something went wrong with her health and therefore, in such circumstances the appellant-convict alone knew what happened to her until she was with him.
Failure on the part of the appellant-convict in offering ant plausible explanation in his further statement recorded u/s 313 of CrPC - HELD THAT:- The appellant-convict was expected to lead some evidence as to what had transpired at the Sanjay Gandhi Hospital. He has maintained a complete silence. It is only the appellant-convict who could have explained in what circumstances and in what manner he had taken his wife to the Sanjay Gandhi Hospital and who attended his wife at the hospital. If it is his case, that his wife was declared dead on being brought at the hospital then it is difficult to believe that the hospital authorities allowed the appellant to carry the dead body back home without completing the legal formalities.
Even where there are facts especially within the knowledge of the accused, which could throw a light upon his guilt or innocence, as the case may be, the accused is not bound to allege them or to prove them. But it is not as if the section is automatically inapplicable to the criminal trials, for, if that had been the case, the Legislature would certainly have so enacted - more than a prima facie case to enable the prosecution to invoke Section 106 of the Evidence Act and shift the burden on the accused husband to explain what had actually happened on the date his wife died.
These appeals reminds of what this Court observed in the case of Dharam Das Wadhwani v. State of Uttar Pradesh [1974 (3) TMI 124 - SUPREME COURT] “The rule of benefit of reasonable doubt does not imply a frail willow bending to every whiff of hesitancy. Judges are made of sterner stuff and must take a practical view of legitimate inferences flowing from evidence, circumstantial or direct.” The role of courts in such circumstances assumes greater importance and it is expected that the courts would deal with such cases in a more realistic manner and not allow the criminals to escape on account of procedural technicalities, perfunctory investigation or insignificant lacunas in the evidence as otherwise the criminals would receive encouragement and the victims of crime would be totally discouraged by the crime going unpunished. The courts are expected to be sensitive in cases involving crime against women.
Both the appeals fail and are hereby dismissed.
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2023 (10) TMI 1370
Seeking grant of bail - opening bank account in the name of the villagers by using documents given by the villagers and forging their signatures - money deposited in such bank accounts was channelized as share capital in M/s. Prime Ispat Limited through shell companies - application is a lady suffering from various ailments - twin requirement of Section 45 of PMLA satisfied or not - HELD THAT:- It is not in dispute that the FIR was registered on 19.02.2010 whereas the respondent filed a complaint arraying the applicant as accused in ECIR on 04.01.2021 i.e. after 10 years. From the summons issued to the applicant, it is quite vivid that she was permitted to appear through an authorized person and it cannot be said that she did not cooperate in the investigation. According to the proviso appended to Section 45 of the PMLA Act, a woman suffering from certain ailments may be granted anticipatory bail.
The decision cited by learned counsel for the respondent states the twin conditions of Section 45 of the PMLA Act are to be satisfied but at the same time, the judgment passed by the Hon'ble Supreme Court in the matter of SATENDER KUMAR ANTIL VERSUS CENTRAL BUREAU OF INVESTIGATION & ANR. [2022 (8) TMI 152 - SUPREME COURT] cannot be lost sight of as the applicant is a lady suffering from various ailments and she cooperated in the investigation of the matter and other co-accused persons against whom similar allegations were made, have already been granted anticipatory bail by the Hon'ble Supreme Court and by this Court, therefore, in opinion of this Court, the present is a fit case to extend the benefit under Section 438 of Cr.P.C. to the applicant.
It is directed that in the event of arrest of the applicant in connection with the aforesaid offence, she shall be released on anticipatory bail on her furnishing a personal bond for a sum of Rs. 50,000/- with one surety in the like sum to the satisfaction of the arresting officer and she shall abide by the conditions imposed - bail application allowed.
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2023 (10) TMI 1367
Seeking cancellation of Regular Bail granted - gross misuse of concession of bail - sufficient material gathered by the prosecution to indicate the involvement of Respondent No. 1 in a criminal conspiracy hatched for killing his wife or not - HELD THAT:- The unusual and surprising events that have happened post the grant of bail to Respondent No.1, do make out a case for recalling the witnesses for an effective, fair, and free adjudication of the trial. This Court is vested with vast and ample powers to have such recourse not only under Article 142 of the Constitution but also under Section 311 of the Code of Criminal Procedure, 1973, be it on the request of the prosecution or suo moto. Such Constitutional or statutory power is not limited by any barriers like the stage of inquiry, trial, or other proceeding. A person can be called and examined though not summoned as a witness, or can be recalled, or reexamined so as to throw light upon the imputations. Section 311 CrPC, of course, does not intend to fill the lacunae in the prosecution’s case and cause any serious prejudice to the rights of an accused. The exercise of power under this provision is intended to meet the ends of justice and to gather overwhelming evidence to scoop out the truth.
In the case at hand, the family members of the Deceased are the most crucial witnesses to test the veracity of the allegations levelled by the prosecution. Their stand in the examinationinchief is diametrically opposite to the one in the cross- examination. The fact that the parents and sister of the Deceased have resiled from their earlier standpoint where they had been found to be agitating vigorously before different forums since the year 2019, implores us to invoke our Constitutional powers under Article 142 read with Section 311 CrPC and direct their recalling for a fresh crossexamination after ensuring a congenial environment, free from any kind of threat, psychological fear, or any inducement.
This is a case fit for recalling the witnesses (PW1, PW4 and PW5) for their further crossexamination to reach an effective decision in the subject trial.
The impugned order dated 12.08.2020 is set aside and the bail granted to Respondent No. 1 is hereby cancelled - Appeal allowed.
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2023 (10) TMI 1364
Maintainability of an intra-Court appeal against an order passed in a criminal matter by Hon'ble Single Judge of this Court under Article 226 of the Constitution of India - HELD THAT:- An intra-Court writ appeal does not lie against an order/ judgment passed by the learned Single Bench in exercise of the criminal writ jurisdiction under Article 226 of the Constitution of India. As the Gauhati High Court Rules are silent on this issue, the anomaly shall forthwith be clarified with appropriate insertion in the Rules clarifying the position that no intra- Court appeal lies against an order/judgment passed by the learned Single Bench in exercise of the criminal writ jurisdiction.
The intra-Court writ appeal preferred by the appellant herein against the judgment passed by the learned Single Judge is hereby dismissed as being not maintainable.
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2023 (10) TMI 1356
Dishonour of Cheque - It is the case of the present petitioner that when the impugned cheque is produced before learned trial court the petitioner denied signature on that cheque - HELD THAT:- The criminal appeal was filed in the year 2019 against the judgment of conviction made in Criminal Case No.2005 of 2018. The petitioner came out with an application on 6.3.2023 for seeking relief for the opinion of the forensic expert about signature on the disputed cheque. It is important to note that an application Exh.38 was unsuccessfully moved by the petitioner before the learned trial Court. The order was never carried to challenge before higher Court. Moreover, the learned Session Judge has noted that no questions are raised to the complainant nor to the defence witness about signature on the disputed cheque. Thus, what appears that the petitioner by way of filing application Exh.35 aimed to prolong the proceedings of the criminal appeal. The petitioner remained silent for three years for moving such application even in the proceedings of the criminal appeal. Thus, it appears that the petitioner was thoroughly careless and negligent and now, under the pretext of one or another application, is trying to prolong the proceedings of the criminal appeal.
Reply to statutory notice u/s 138(B) of the NI Act is first stage of prosecution where the accused can raise his defence. In the present case, learned advocate for the petitioner has failed to point out that the accused has raised defence at the relevant point of time when the opportunity was available and disputed that he has not signed the cheque.
Thus, no case is made out to interfere with the impugned order under supervisory jurisdiction. Hence, present petition fails and stands dismissed.
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2023 (10) TMI 1346
Seeking discharge from detention - accused possessed assets disproportionate to his known source of income - failure to consider the written explanation offered - non-application of mind - violation of principles of natural justice - HELD THAT:- It is settled principle of law that at the stage of considering an application for discharge the court must proceed on an assumption that the material which has been brought on record by the prosecution is true and evaluate said material in order to determine whether the facts emerging from the material taken on its face value, disclose the existence of the ingredients necessary of the offence alleged.
The power and jurisdiction of Higher Court under Section 397 Cr.P.C. which vests the court with the power to call for and examine records of an inferior court is for the purposes of satisfying itself as to the legality and regularities of any proceeding or order made in a case. The object of this provision is to set right a patent defect or an error of jurisdiction or law or the perversity which has crept in such proceedings.
The revisional court cannot sit as an appellate court and start appreciating the evidence by finding out inconsistency in the statement of witnesses and it is not legally permissible. The High Courts ought to be cognizant of the fact that trial court was dealing with an application for discharge.
The plea or the defence when requiring to be proved during course of trial is itself sufficient for framing the charge. In the instant case, the learned Trial Judge has noticed that explanation provided by the respondent accused pertaining to purchase of shop No.7 of Suman City Complex of plot No.19, Sector-11 from the loan borrowed and paid by the respondent was outside the check period and hence the explanation provided by respondent is a mere eye wash. This is an issue which has to be thrashed out during the course of the trial and at the stage of framing the charge mini trial cannot be held. That apart the explanation offered by the respondent accused with regard to buying of Maruti Wagon-R car, Activa scooter, purchase of house etc., according to the prosecution are all the subject matter of trial or it is in the nature of defence which will have to be evaluated after trial.
The High Court had committed a serious error in interfering with the well-reasoned order passed by the trial court - the impugned judgment dated 11.01.2018 passed in Criminal Revision Application No.387 of 2016 setting aside the trial court order dated 13.04.2016 requires to be set aside - appeal allowed.
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