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Indian Laws - Case Laws
Showing 141 to 160 of 748 Records
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2023 (10) TMI 1342
Maintainability of second petition - Is a second petition maintainable Under Section 482 Code of Criminal Procedure on grounds that were available for challenge even at the time of filing of the first petition thereunder?
HELD THAT:- Though it is clear that there can be no blanket Rule that a second petition Under Section 482 Code of Criminal Procedure would not lie in any situation and it would depend upon the facts and circumstances of the individual case, it is not open to a person aggrieved to raise one plea after the other, by invoking the jurisdiction of the High Court Under Section 482 Code of Criminal Procedure, though all such pleas were very much available even at the first instance. Permitting the filing of successive petitions Under Section 482 Code of Criminal Procedure ignoring this principle would enable an ingenious Accused to effectively stall the proceedings against him to suit his own interest and convenience, by filing one petition after another Under Section 482 Code of Criminal Procedure, irrespective of when the cause therefor arose. Such abuse of process cannot be permitted.
In the case on hand, the filing of the charge sheet and the cognizance thereof by the Court concerned were well before the filing of the first petition Under Section 482 Code of Criminal Procedure, wherein challenge was made only to the sanction order. That being so, the Petitioner was not at liberty to again invoke the inherent jurisdiction of the High Court in relation to the charge sheet and the cognizance order at a later point of time.
The impugned order passed by the Allahabad High Court holding to this effect is, therefore, incontrovertible on all counts and does not warrant interference - SLP dismissed.
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2023 (10) TMI 1295
Seeking grant of Default bail - chargesheet or a prosecution complaint be filed in piecemeal without first completing the investigation of the case or not? - filing of such a chargesheet without completing the investigation will extinguish the right of an accused for grant of default bail or not - remand of an accused can be continued by the trial court during the pendency of investigation beyond the stipulated time as prescribed by the CrPC - HELD THAT:- It pertinent to mention that in the present case, this Court is not dealing with the merits of the case and as such is not inclined to make any observations regarding the same. Every court, when invoked to exercise its powers, must be mindful of the relief sought, and must act as a forum confined to such relief. In the present case at hand, this Court is not a court of appeal, but a court of writ, and therefore is inclined to limit its jurisdiction only to the personal liberty of the writ petitioner’s husband and the impugned points of law.
Under Section 167 of the Code of Criminal Procedure, 1898, which was the Act that governed criminal procedure before the enactment of CrPC presently in force, an accused, either under judicial or police custody, could be remanded only for a maximum period of 15 days.
Reliance placed in SATENDER KUMAR ANTIL VERSUS CENTRAL BUREAU OF INVESTIGATION & ANR. [2021 (10) TMI 1296 - SUPREME COURT], wherein it was held that Section 167(2) of the Cr.P.C. is a limb of Article 21 of the Constitution of India, and as such, the investigating authority is under a constitutional duty to expedite the process of investigation within the stipulated time, failing which, the accused is entitled to be released on default bail.
It is also to be noted that as per the scheme of Cr.PC, an investigation of a cognizable case commences with the recording of an FIR under Section 154 Cr.PC. If a person is arrested and the investigation of the case cannot be completed within 24 hours, he has to be produced before the magistrate to seek his remand under Section 167(2) of the Cr.PC during continued investigation. There is a statutory time frame then prescribed for remand of the accused for the purposes of investigation, however, the same cannot extend beyond 90 days, as provided under Section 167(2)(a) (i) in cases where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than 10 years and 60 days, as provided under Section 167(2)(a)(ii), where the investigation relates to any other offence.
Without completing the investigation of a case, a chargesheet or prosecution complaint cannot be filed by an investigating agency only to deprive an arrested accused of his right to default bail under Section 167(2) of the CrPC - Such a chargesheet, if filed by an investigating authority without first completing the investigation, would not extinguish the right to default bail under Section 167(2) CrPC.
In the instant case, it is clear from the facts that during the pendency of the investigation, supplementary chargesheets were filed by the Investigation Agency just before the expiry of 60 days, with the purpose of scuttling the right to default bail accrued in favour the accused - The Investigating Agency and the trial Court, thus, failed to observe the mandate of law, and acted in a manner which was manifestly arbitrary and violative of the fundamental rights guaranteed to the accused.
It is pertinent to mention that the right of default bail under Section 167(2) of the CrPC is not merely a statutory right, but a fundamental right that flows from Article 21 of the Constitution of India. The reason for such importance being given to a seemingly insignificant procedural formality is to ensure that no accused person is subject to unfettered and arbitrary power of the state - it becomes essential to place certain checks and balances upon the Investigation Agency in order to prevent the harassment of accused persons at their hands.
The interim order of bail passed in favour of the accused is made absolute, and the present writ petition is, accordingly, disposed of.
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2023 (10) TMI 1294
Professional Misconduct - Chartered Accountant (CA) - Delay of 19 years for completion of Proceeding on the part of ICAI - fabrication of bogus payment challans by putting forged stamp of Dena Bank, Vile Parle (W) Branch - allegation to have collected account payee cheques for making payment of sales tax dues which he misappropriated by depositing in his own bank account - HELD THAT:- The sequence of events clearly indicate that firstly the complaint itself was made after 10-12 years of the incident having taken place. Thereafter, it took the Council as many as 14 years to complete the procedure prescribed under the Act and reach a finding of guilt of Respondent. Another almost two years were spent in the process of filing the Reference and finally, about four more years were spent in removing office objections to get the Reference registered. Thus, the Council has prolonged the procedure for as many as 19 years and kept Respondent in the dock for the entire period.
Considering the nature of accusation against Respondent, the finding of guilt by the Committee and the Council and the consequent penal recommendation of such grave ramification, it is surprising that the Institute took such a long time to complete the procedure of indictment. The attitude of the Institute appears to be completely casual and negligent - Respondent is presently 77 years of age and save and except a period of five years for which he himself had surrendered his certificate of practice, he has been professionally active and no other complaint is found to have been made against him. The Institute has offered no explanation whatsoever for the inordinate delay in initiating and concluding the disciplinary action against Respondent.
The Supreme Court in its decision in the matter of State of Madhya Pradesh v Bani Singh [1990 (4) TMI 286 - SUPREME COURT] has quashed the charge memo and the departmental enquiry against an officer of the SAF, Gwalior on the ground of inordinate delay of 12 years to initiate departmental proceedings with reference to an incident that took place in 1975-76 and held that since there was no satisfactory explanation for the delay, it will be unfair to permit departmental enquiry against the officer to continue.
In the present case no explanation is offered by the Institute for the inordinate delay of as many as 19 years. Respondent has inasmuch suffered the agony of the sword of Damocles hanging over his head for so many years. In any case, we do not find that the Committee has found any substantial justification in the form of unrebutted evidence against Respondent as much as to hold him guilty to the extent that his name should be removed for a period of one year and Respondent be compelled to face an ignominy of the tag of ‘other misconduct’ at this stage in his professional career and at an age of 77 years - even the Council has merely reproduced the report of the Committee without giving its own independent findings. There is neither any analysis by the Council nor any justification recorded to explain the quantum of punishment recommended to this Court.
The view of Council is wholly untenable and the recommendation of the Council as prayed cannot be accepted. In view thereof, there is no need to take any further action against Respondent - Reference disposed off.
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2023 (10) TMI 1293
Murder - Scope of exception Under Section 84 of Indian Penal Code or not - issue of insanity - reversal of order of acquittal - HELD THAT:- The fact that the Appellant had committed murder of the deceased have been found established concurrently by the Trial Court as well as the High Court, therefore, we would discuss the evidence in this regard very briefly - Basing upon the evidence of PW-1 and PW-13 and the medical evidence adduced, it is fully proved that the Appellant-Accused had attacked the deceased with sharp-edged weapon causing his death.
Issue of insanity - HELD THAT:- It is settled that the standard of proof to prove the lunacy or insanity is only 'reasonable doubt' - In Surendra Mishra v. State of Jharkhand [2011 (1) TMI 1586 - SUPREME COURT] , HARI SINGH GOND VERSUS STATE OF M.P. [2008 (8) TMI 1012 - SUPREME COURT] and Bapu v. State of Rajasthan [2007 (6) TMI 557 - SUPREME COURT] this Court has held that an Accused who seeks exoneration from liability of an act Under Section 84 of Indian Penal Code has to prove legal insanity and not medical insanity. Since the term insanity or unsoundness of mind has not been defined in the Penal Code, it carries different meaning in different contexts and describes varying degrees of mental disorder. A distinction is to be made between legal insanity and medical insanity. The court is concerned with legal insanity and not with medical insanity.
It is settled that the judgment of acquittal can be reversed by the Appellate Court only when there is perversity and not by taking a different view on reappreciation of evidence. If the conclusion of the Trial Court is plausible one, merely because another view is possible on reappreciation of evidence, the Appellate Court should not disturb the findings of acquittal and substitute its own findings to convict the Accused - In the case at hand, the High Court had reversed the finding of acquittal and convicted the Appellant mainly on reappreciation of evidence by holding that the Trial Court erred in extending the benefit of Section 84 of Indian Penal Code, without even recording a finding that the Trial Court's finding is perverse.
In the light of the evidence discussed by the Trial Court including the medical evidence about the mental illness of the Appellant-Accused and his abnormal behaviour at the time of occurrence, it does not appear that the view taken by the Trial Court was perverse or that it was based on without any evidence - the High Court erred in setting aside the judgment of acquittal rendered by the Trial Court.
The Appellant-Accused of the charge Under Section 302 Indian Penal Code acquitted - appeal allowed.
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2023 (10) TMI 1249
Dishonour of Cheque - insufficient funds - existence of legally enforceable debt or not - Presumption of innocence in favour of accused - acquittal of accused under Sec 255 (1) of Code of Criminal Procedure - HELD THAT:- This Court reminds itself of its scope and powers in deciding an appeal against an order of acquittal. It is well-settled in a host of judicial pronouncements that the Appellate Court should be slow and watchful in interfering with an order of acquittal. It is only when the conclusions arrived at by the Trial Court is manifestly erroneous and palpably perverse, the Appellate Court should take a contrary view. It is more because an order of acquittal has the presumption of innocence in favour of the accused.
In the instant case, the complainant has alleged that the accused had issued Ext P6 cheque in his favour in discharge of a legally enforceable debt. The cheque, on presentation to the bank for encashment, got dishonoured due to ‘insufficient funds’ and despite receipt of the demand notice, the accused failed to pay the cheque amount. Hence, the accused committed the above offence - Indisputably, the complaint has been filed by the complainant ( Mathew K.Cherian represented by his power of attorney holder PW1) in his individual capacity. PW1 has not testified that the accused had any business transaction with the complainant in his individual capacity. Therefore, the learned Magistrate, on an appreciation of the oral testimonies of PW1 and DW1 and the materials on record, came to the legitimate conclusion that Ext P6 cheque was not issued towards a legally enforceable debt in favour of the complainant.
In the case on hand, in addition to the finding that there was no business transaction between the complainant and the accused as alleged in the complaint, there is also no specific assertion as to the competence and knowledge of PW1 as regards the alleged transaction between the complainant and the accused. Thus, the learned Magistrate has rightly concluded that Ext P6 cheque was not issued towards a legally enforceable debt.
On a re-appreciation of the materials on record, this Court is of the definite view that there is no error or illegality in the impugned judgment passed by the learned Magistrate holding the accused not guilty for the offence under Sec.138 of the N.I Act - appeal dismissed.
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2023 (10) TMI 1248
Dishonour of Cheque - existence of legally enforceable debt - benefit of doubt to accused or not - presumption of consideration under Secs.118(a) and 139 of the N.I Act - HELD THAT:- In the case on hand, the complainant’s case is that, Ext.P8 cheque was issued by the accused in discharge of a legally enforceable debt and the cheque got dishonoured when presented for collection and the accused failed to pay the demanded amount, despite receipt of the statutory lawyer notice - The accused denied the allegation and has raised a defence that he has no business transaction with the complainant. Instead, Ext.P8 cheque was issued by him to DW1 to purchase computers. It was misutilising the cheque, the complainant filed the false complaint.
The courts below, after a threadbare analysis of the materials placed on record, have concurrently concluded that the accused had failed to shift the reverse onus of proof cast on his shoulders under Section 139 of the N.I. Act. Accordingly, the courts below found the accused guilty, and convicted and sentenced him for the above offence - There are no error, illegality or irregularity in the conclusion arrived at by the courts below. Thus, the conviction imposed by the courts below is confirmed.
In DAMODAR S. PRABHU VERSUS SAYED BABALAL H. [2010 (5) TMI 380 - SUPREME COURT] the Hon'ble Supreme Court held that unlike other forms of crime, the punishment under Section 138 of the N.I. Act is not a means for seeking retribution, but is a means to ensure payment of money. Complainant's interest lies primarily in recovering the money rather than seeing the drawer getting incarcerated. In an offence under Section 138 of the N.I. Act, the compensatory aspect of the remedy should be given priority over the punitive aspect.
Thus lenient view as regards substantive sentence can be taken, by sentencing the revision petitioner to undergo imprisonment for one day(till the rising of the Court) and pay compensation for the cheque amount, which would do complete justice to both sides - revision petition is dismissed.
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2023 (10) TMI 1247
Dishonour of Cheque - validity of convicting and sentencing the revision petitioner - insufficiency of funds - discharge of onus to prove existence of debt - It is submitted that, prosecution has miserably failed to establish the ingredients of Section 138 of the N.I.Act - HELD THAT:- It is trite that the revisional powers of this Court under Sections 397 to 401 of the Cr.P.C. is to be sparingly exercised and in cases of exceptional rarity. Unless there is manifest error, illegality or an apparent misreading of the records, this Court shall not interfere with the findings of fact rendered by the fact finding courts. Merely because a different view is possible, the revisional Court shall not substitute the views of the Trial/Appellate Courts.
The law has crystallized that once the complainant establishes the concoction of the five ingredients under Section 138 of the N.I.Act, then the reverse onus of proof shifts to the accused to set up a probable defence. If he discharges the onus of proof and casts a doubt about the existence of a debt, then the prosecution has to fail.
Thus, both Courts have failed to advert and discuss the oral testimonies of PW1 and DW1. Instead, the Courts have only discussed about Exts.P1 to P10 documents and concluded that the revision petitioner has not discharged the reverse onus of proof under Section 139 of the N.I. Act - there is no discussion regarding Ext.D1 reply notice, the statement of the revision petitioner u/s 313 of the Cr.P.C. and the testimonies of the defense witnesses and documents.
The courts below have misread the materials on record and have perfunctorily concluded that the revision petitioner has committed the offence u/s 138 of N.I. Act, which is improper, irregular and illegal, and warrants interference by this Court - revision petition is allowed.
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2023 (10) TMI 1211
Validity of sentence for murder - Murder of a person with criminal history / history-sheeter - Assaulting the deceased by lathis and tabbal - Inordinate delay in filing of the First Information Report (F.I.R.) - possibility of improvements thereby casting doubt on the version of the prosecution - testimonies of the witnesses of the prosecution being contradictory - accused persons present at the scene of the crime or not - plea of alibi.
Inordinate delay in filing of the First Information Report (F.I.R.) - HELD THAT:- The document itself records the time of incident as being 8.15 a.m. and the time of report as being 11.00 a.m. The testimony of PW-3 at whose instance the FIR was recorded, shows that out of fear and having sustained numerous injuries, he ran from the place of occurrence and hid in the house of Baisakhu Kewat and only emerged therefrom two hours later - In such a situation, delay in filing of the FIR cannot be said to be fatal to the case of the prosecution more so in view of the injuries sustained by him; the place of occurrence being a remote village area and that the version of events was dictated to the police by this witness only upon their reaching his place of shelter. To us it does not appear to be a case of prior consultation; discussion; deliberation or improvements.
There are nothing emanating which would credibly suggest that the time gap between the occurrence of incidence and registration of the FIR is unjustified - Resultantly, the first contention of the convict appellants must necessarily be answered in the negative.
Plea of alibi - HELD THAT:- Both the defence witnesses do not conclusively establish the plea of alibi, based on the principle of preponderance of probability as their statements stand unsupported by any other corroborative evidence. Not only that, no reason stands explained in such testimony for A-9 having travelled from Bhalesur to Sundri in order to go to Sandi Bazar. It is a matter of record that A-9 is a resident of Bhalesur where he resided with his family. He owned farms in Sundri. The family of A-9 was not examined to substantiate the claim of such travel. For those reasons, we cannot believe the version testified to by DW-1 and DW-2 - for the plea of alibi to be established, something other than a mere ocular statement ought to have been present. After all, the prosecution has relied on the statement of eyewitnesses to establish its case against the convict-appellants leading to the unrefuted conclusion that convict-appellants were present on the spot of the crime and had indeed caused injuries unto the deceased as also PW-3 with Lathis and Tabbal on various and vital parts of their bodies.
The prosecution case relies primarily on 3 witnesses whom, the Courts below have believed without exception. It is next urged that there are contradictions in the testimonies of three witnesses, hence, it would neither be appropriate nor safe to place reliance thereon. Having perused the same, we find them to be coherent on material facts such as the presence of the accused on the spot of the crime; the death of Chetram; a blast having taken place; and the accused being the assailants - there are no force in the contention that the testimonies relied on by the prosecution are inherently contradictory.
It may be true that the deceased Chetram was a history-sheeter and had scores of criminal cases pending against him or cases in which he was involved. However, such fact is unsubstantiated on record for no detail whatsoever stands provided in respect of such cases involving the deceased - simply because the deceased had a chequered past which constituted several run-ins with the law, Courts cannot give benefit thereof, particularly when such claims are bald assertions, to those accused of committing such a person’s murder. And in any event, such a plea is merely presumptuous.
Thus, the charges levied against the accused, i.e., under Sections 148, 302 read with 149, 307 read with 149, IPC, and Sections 4/5 of the Explosive Substance Act, 1908, and the sentence corresponding thereto as awarded by the Trial Court and confirmed by the High Court, do not warrant interference of this Court. It may also be observed that the sentences awarded are in no manner excessive or disproportionate to the crimes for which the convict-appellants stand convicted.
Appeal dismissed.
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2023 (10) TMI 1210
Dishonour of Cheque - insufficient funds - right of the petitioner to cross-examine the complainant is closed - HELD THAT:- Admittedly, the petitioner has already paid the cost imposed by the learned Trial Court for the purpose of conducting cross-examination of the complainant, and as clear from the contents of present petition and the arguments addressed before this Court, the petitioner has sought setting aside of the impugned order dated 11.04.2023 only on the ground that in the said order, learned Sessions Court had failed to consider the contentions raised by the petitioner/revisionist therein regarding the maintainability of the complaint case under Section 219 of Cr.P.C. and had not passed any order qua the same.
As clear from the bare perusal of the records, the order dated 20.03.2023, which was impugned before the learned Sessions Court, did not record any observations on the maintainability of the complaint under Section 219 of Cr.P.C., rather only pertained to the right of accused to cross-examine the complainant - It is also not in dispute that the petitioner/accused has till date not challenged the order dated 16.04.2022 passed by the learned Trial Court vide which his application under Section 219 of Cr.P.C. was dismissed and though he had made references to the said order in his criminal revision petition filed before the learned Sessions Court and had taken a ground that the proceedings in the present complaint case were bad in law due to bar under Section 219 of Cr.P.C., the petitioner had still not assailed the order dated 16.04.2022 but had only challenged the order dated 20.03.2023 by virtue of which the learned Trial Court had closed his right to cross-examine the complainant.
There was no occasion for the learned Sessions Court to have recorded any findings on the issue of whether the complaint was maintainable or not since the same was not an issue before the learned Sessions Court. Thus, there are no grounds to set aside the order dated 11.04.2023 passed by the learned Sessions Court.
Petition dismissed.
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2023 (10) TMI 1209
Dishonour of Cheque - amicable settlement of dispute - acquittal of the accused - HELD THAT:- Since the parties are entering into compromise at the stage of revision, therefore, law laid down by the apex Court in the case of DAMODAR S. PRABHU VERSUS SAYED BABALAL H. [2010 (5) TMI 380 - SUPREME COURT] will be applicable in this case where it was held that If the accused does not make an application for compounding as aforesaid, then if an application for compounding is made before the Magistrate at a subsequent stage, compounding can be allowed subject to the condition that the accused will be required to pay 10% of the cheque amount to be deposited as a condition for compounding with the Legal Services Authority, or such authority as the Court deems fit.
Thus, considering the fact that the parties have amicably settled their dispute and have entered into compromise before this Court in the revision and decided to avoid further litigation, hence, the applicant is liable to pay 2% of the cheque amount i.e. Rs.8,480/- by way of cost to be deposited with the “State Legal Services Authority” Indore - Subject to payment of cost at the rate of 2% of the cheque amount with the “State Legal Services Authority” Indore, within a period of 15 days from today, the applicant be released from the jail. Sentence awarded to the applicant is hereby modified by reducing the sentence to the period already undergone.
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2023 (10) TMI 1154
Dishonour of Cheque - legally recoverable debt - actual amount due and payable on the part of petitioner/accused towards the complainant/respondent - whether the amount due as on date of presentation of cheque for encashment and its subsequent dishonoring was less than the amount of cheque in question?
HELD THAT:- The legal presumption of the cheque having been issued in the discharge of liability must also receive due weightage. In a situation where the accused moves Court for quashing even before trial has commenced, the Court's approach should be careful enough to not to prematurely extinguish the case by disregarding the legal presumption which supports the complaint.
The legal presumption of the cheque having been issued in the discharge of liability must also receive due weightage. In a situation where the accused moves Court for quashing even before trial has commenced, the Court's approach should be careful enough to not to prematurely extinguish the case by disregarding the legal presumption which supports the complaint.
This Court is of the opinion that the issues raised before this Court can only be decided by the learned Trial Court at appropriate stage, on their own merits. Since a prima facie case exists against the petitioner under Section 138 of NI Act, there are no reasons to quash the summoning order dated 25.09.2019.
Petition dismissed.
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2023 (10) TMI 1101
Professional Misconduct - allegation of assisting various companies in availing credit facilities of huge amounts from various banks by issuing false documents certifying valuation of work undertaken and completed by the accused companies - allegation of also certifying the sales registers and list of supply bills of the accused companies without verifying facts and figures to facilitate loans being sanctioned to the said companies.
HELD THAT:- The stipulated procedure under Regulation 13, 14 and 15 of Chartered Accountants Regulations, 1964 required the Committee report to contain a statement of allegations, the defense entered by the delinquent Chartered Accountant, the recorded evidence and the conclusions of Committee. The Council is to apply its mind to the report of Committee and is empowered to conclude regarding the guilt of its member or otherwise. It appears from the reports of Committee that the working papers of Respondent revealed nothing of substance pertaining to the basis of material on which the certificates were issued by him. The certificates simply stated that the certificates were issued on the specific request of the firm. On being asked to produce documents regarding statements of expenditure incurred by the accused firms, invoices/vouchers for purchase of plant and machinery for civil work and land development etc., Respondent was unable to produce any document.
The Committee has recorded its findings on the basis of the inability of Respondent to provide any material on the basis of which he satisfied himself as to the genuineness of accused firms and the valuation of their properties sufficient enough to justify issuing as many as 11 certificates used by the accused firms to avail credit facilities. The Committee has also recorded its view that Respondent failed to perform due diligence before issuing certificate and he was unable to co-relate any document/papers with the certification/valuation done by him. The Committee thus held Respondent guilty of professional misconduct on the basis of issuance of a large number of certificates at regular intervals, issued as and when asked for by his clients and most importantly in the absence of any papers to indicate due diligence employed by him.
It is true that the employees of the banks were not available for cross-examination by Respondent. Respondent had absented himself at the final hearing of the Committee. Respondent has relied on the absence of witnesses for cross-examination and has contested the finding of Committee at the same time admitting omissions committed by him and his failure to comply with the due diligence, which he ought to have done while issuing the certificates. On perusal of the committee report and the deposition of Respondent himself, we have no hesitation in accepting that Respondent has been found guilty of certain degree of negligence amounting to misconduct justifying some action against him - Refusing to accept the recommendation of Council will be deleterious to the maintenance of discipline or the professional conduct on the part of members of a professional institute or association.
In this case, Respondent was completely aware that accused companies were seeking specific verification and certification from a chartered accountant to complete the documentation required by Banks to sanction credit facilities to them. Thus he was naturally aware that issuing such certificates in the absence of proper valuation was a fraud on the Banks as such public and financial institutions rely upon certificates of professionals as part of its due diligence. Hence a contrary view would easily defeat the purpose of the Act and the object behind regulatory measures envisaged in Section 21 of the Act.
The view of Council is correct - Respondent is thus reprimanded in accordance with Section 21(6)(b) of the Act.
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2023 (10) TMI 1100
Dishonour of Cheque - insufficient funds - settlement of matter between parties - compounding of offences - HELD THAT:- Having taken note of the fact that the petitioner-accused and the complainant-respondent have settled the matter and the complainant has no objection in compounding the offence, therefore, this Court sees no impediment in accepting the prayer made on behalf of the accused-petitioner for compounding of offence while exercising power under Section 147 of the Act as well as in terms of guidelines issued by the Hon'ble Apex Court in DAMODAR S. PRABHU VERSUS SAYED BABALAL H. [2010 (5) TMI 380 - SUPREME COURT], wherein the Hon'ble Apex Court has held Section 147 of the Negotiable Instruments Act, 1881 is in the nature of an enabling provision which provides for the compounding of offences prescribed under the same Act, thereby serving as an exception to the general rule incorporated in sub-section (9) of Section 320 of the CrPC which states that 'No offence shall be compounded except as provided by this Section'. A bare reading of this provision would lead us to the inference that offences punishable under laws other than the Indian Penal Code also cannot be compounded. However, since Section 147 was inserted by way of an amendment to a special law, the same will override the effect of Section 320(9) of the CrPC, especially keeping in mind that Section 147 carries a non obstante clause.
In K. SUBRAMANIAN VERSUS R. RAJATHI REP. BY P.O.A.P. KALIAPPAN [2009 (11) TMI 1013 - SUPREME COURT], it has been held by the Hon'ble Apex Court that in view of the provisions contained in Section 147 of the Act read with Section 320 of Cr.P.C., compromise arrived at can be accepted even after recording of the judgment of conviction.
Since, in the instant case, the petitioner-accused after being convicted under Section 138 of the Act, has compromised the matter with the complainant, prayer for compounding the offence can be accepted in terms of the aforesaid judgments passed by the Hon'ble Apex Court.
The present matter is ordered to be compounded and the impugned judgment of conviction, dated 12.06.2018, and order of sentence dated 11.09.2018, passed by the learned Additional Chief Judicial Magistrate, Court No. 1, Kangra, H.P., is quashed and set-aside - the petitioner-accused is acquitted of the charge framed against him under Section 138 of the Act. Bail bonds, if any, stand discharged.
Petition disposed off.
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2023 (10) TMI 1099
Dishonour of Cheque - discharge of existing debt/liability - it is the case of the petitioner that the learned trial Court has wrongly drawn the presumption under Section 118 of the N.I. Act, against the accused, without any evidence on record - HELD THAT:- Firstly, coming to the fact that complainant by examining CW-1 has proved the demand promissory note Ext. CW-1/D, in which, it has been mentioned that Rs. 1,60,000/-has been obtained by accused Dinesh Kumar. The said amount was received vide Cheque Nos. 113001 and 113002 dated 22.09.2015. Ext. CW-1/F is the agreement for loan. The cheque is Ext. CW-1/G, which was issued on 10.06.2016 for a sum of Rs. 1,46,400/-in favour of the complainant. The said cheque was not encashed and the same was returned back vide memo Ext. CW-1/J. Reason for non-encashment, as has been mentioned in the memo, is that the person, who has issued the cheque, was not having the sufficient balance, in his account.
The same address has been mentioned in the complaint. The accused has been served on the said address, as depicted in the summons issued against the accused. Moreover, the accused has not disputed the said address. Even otherwise, for the sake of argument, if this notice was not received by him, no efforts have been made by the accused to make the payment of the cheque on the first available opportunity, when, he had appeared before the learned trial Court. In such situation, the said argument is not liable to be accepted - the learned trial Court has rightly held that the presumption under Section 118 of the N.I. Act has rightly been drawn in favour of the complainant.
So far as the argument of learned counsel for the petitioner-accused qua the fact that in the document Ext. DW-4/A, the date of payment of a sum of Rs. 60,000/-is 22.09.2015, which is contrary to the document Ext. CW-1/D, is concerned, when in the document Ext. CW-1/F, which is agreement for loan, the total amount, which has been paid as loan is Rs. 1,60,000/-, then, the variation, which has been highlighted, is inconsequential. From this evidence, the petitioner could not rebut the presumption under Section 118 of the N.I. Act in favour of the holder of the cheque, in due course.
This Court is not inclined to interfere with the findings given by the learned trial Court, which have been affirmed by the learned Appellate Court - this Court finds no merit in the revision petition - revision petition dismissed.
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2023 (10) TMI 1077
Outstanding Fee payable to standing counsel - Filing of status report, in the form of an affidavit, on payment of fee to the standing counsel for the Income Tax Department at various courts/tribunals - HELD THAT:- The status report/affidavit will indicate the reason and cause for non-verification of the pending bills; reason for delay in verification; and if there has been or is delay in payment the reason for delay in payment.
The status report/affidavit will be filed within eight weeks from today. Response to the status report/affidavit may be filed within four weeks after service thereof.
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2023 (10) TMI 1045
Rejection of petitioner’s application for dispensing with his personal appearance under Section 205 of the Criminal Procedure Code - HELD THAT:- Under this Section, the Magistrate is competent to dispense with personal attendance of the accused. While exercising the discretion in this regard, the Magistrate may take into account the nature of controversy. Besides that the Magistrate has to consider whether any useful purpose would be served by the requiring the personal attendance of the accused or whether progress of the trial is likely to be hampered on account of his absence. If any attempt is made to prolong the proceeding, the Magistrate is competent to pass any order as it deems fit and proper.
The petitioner is her application for dispensing with her personal appearance under Section 205 of the Code has taken the ground that she is a housewife and has to look after day to day affairs of her house and thus her personal appearance be dispensed with - The question whether the petitioner is a housewife or a businesswoman is not of such material and the only aspect is to be looked into whether her attendance before the Court is necessary in the facts and circumstances of the case. The case of the complainant is based on documents. From the impugned order it is found that the learned Magistrate has not considered whether any useful purpose could be served by requiring the personal attendance of the accused or whether the progress of the trial is likely to be hampered on account of her absence.
The personal appearance of the petitioner is dispensed with subject to conditions imposed - the revisional application is allowed.
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2023 (10) TMI 989
Professional misconduct - Charge of carrying on business without permission, i.e., professional misconduct within the meaning of Clause (11) of Part I of the First Schedule - Respondent using his position as Chartered Accountant induced the Complainant to give a loan, which was not repaid fully - HELD THAT:- As held in D.K. AGRAWAL VERSUS COUNCIL OF THE INSTITUTE OF CHARTERED ACCOUNTANTS OF INDIA [2021 (10) TMI 526 - SUPREME COURT] report of the Disciplinary Committee will only contain a statement of the allegations, the defence entered by the members, the recorded evidence and the conclusions expressed by the Disciplinary Committee. The conclusions of the Disciplinary Committee are tentative and the same are not recorded as findings. It is only the Council which is empowered to find out whether the member is guilty of misconduct. The Council has to determine that a member is guilty of misconduct and the task of recording of the findings has been specifically assigned to the Council.
After recording a finding that a member is guilty of misconduct, the Act moves forward to the final stage of penalisation. The penalty which follows is so harsh that it may result in the removal from the Register of Members for a substantial number of years. The removal of his name from the Register deprives a member of the right to a certificate of practice. The findings by the Council constitutes the foundation for the penalty imposed by the Council on him - The person who is adversely affected wants to know as to why his submissions have not been accepted. Giving of reasons ensures that a hearing is not rendered as a meaningless charade. Unless an adjudicatory body is required to give reasons and make findings of fact indicating the evidence upon which it relied, there is no way of knowing whether the concerned body genuinely applied itself to and evaluated the arguments and the evidence advanced at the hearing. Giving reasons is all the more necessary because it gives satisfaction to the party against whom a decision is taken. It is a well known principle that justice should not only be done but should also be seen to be done.
Charge of carrying on business without permission, i.e., professional misconduct within the meaning of Clause (11) of Part I of the First Schedule - HELD THAT:- The Council states that it has decided that an opportunity of hearing be given to him before passing any orders. There is nothing to indicate any further hearing happened or any decision has been taken. Therefore, we will proceed on the basis that there is no recommendation as regards this charge - Moreover, there are no discussions or reasons as regards the recommendations for removal for a period of three months or why the recommendations of the Disciplinary Committee was not acceptable. Therefore, we are not inclined to accept the recommendations in respect of “Other Misconduct”.
The complaint against respondent was lodged in 1996 primarily for non return of the loan taken. The loan amount has been repaid way back in 1998. The fact that the pendency of this Reference itself as well as the process of Disciplinary proceedings instituted by the institute itself would be like the proverbial Damocles sword hanging over the head of respondent for over 27 years.
There is no need to take any further action against respondent - Reference disposed.
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2023 (10) TMI 951
Dismissal of the appellant's claim for compensation relating to loss of profits - Setting aside of Arbitral Award to the extent it awarded loss of profit to the appellant - section 37 of the Arbitration and Conciliation Act, 1996 - High Court set aside the award - HELD THAT:- It is undeniably established that the appellant's claim for loss of profit stems from the delay attributed to the respondent in completing the project. It is further evident that the loss of profit sought in the present case is primarily based on the grounds that the appellant, having been retained longer than the period stipulated in the contract and its resources being blocked for execution of the work relatable to the contract in question, it could have taken up any other work order and earned profit elsewhere.
The contentions advanced on behalf of the appellant tasks us to resolve a recurring issue which, while not unprecedented, has consistently confronted the courts leading it to navigate various circumstances under which a claim for loss of profit may be allowed in cases of delay simpliciter in the execution of a contract - However, the contentions so raised, need not detain the case for too long. Quite apart from the appeal raising the question as to whether a claim on account of loss of profit is liable to succeed merely on the ground that there has been delay in the execution of the construction contract, attributable to the employer, the question that first needs to be answered on facts and in the circumstances is whether the Second Award is in conflict with the public policy of India.
Having read the Second Award, there are no hesitation to hold that it fares no better than the First Award, for, it is equally in conflict with the public policy of India. We have noticed from the order dated 20th May, 2002 of the learned Single Judge that while remitting Claim No.12 for reconsideration, the Arbitrator was warned not to be influenced by the factors that weighed in his mind while making the First Award. The Arbitrator was also required to proceed only on the basis of the evidence on record. Yet, regrettably, what we find is that the Arbitrator went on to ignore the judicial decision of the High Court with impunity.
In the wake of authority of judicial determination made by the Courts of law, any award of an arbitrator or a tribunal that seeks to overreach a binding judicial decision, does conflict with the fundamental public policy and cannot, therefore, sustain.
The arbitral award in question is patently illegal in that it is based on no evidence and is, thus, outrightly perverse; therefore, again, it is in conflict with the “public policy of India” as contemplated by section 34(2)(b) of the Act - appeal dismissed.
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2023 (10) TMI 950
Dishonour of Cheque - discharge of any legally enforceable debt or not - rebuttal of presumption - whether the amount due and payable on the part of petitioners towards the complainants, even as per the case of complainants, was less than the amount of cheques in question?
HELD THAT:- The essentials to constitute an offence under Section 138 of NI Act were discussed by Hon'ble Apex Court in case of DASHRATHBHAI TRIKAMBHAI PATEL VERSUS HITESH MAHENDRABHAI PATEL & ANR. [2022 (10) TMI 424 - SUPREME COURT] where it was held that For the commission of an offence under Section 138, the cheque that is dishonoured must represent a legally enforceable debt on the date of maturity or presentation.
Thus, there is no dispute regarding the arguments raised by learned counsel for respondent that to constitute an offence under Section 138 of NI Act, the cheque in question should have been issued in discharge of some legally enforceable debt.
However, it is also well-settled through precedents of Hon’ble Apex Court that the issue as to whether or not a cheque was issued in discharge of legally recoverable debt is to decided during the course of trial and the proceedings under Section 138 of NI Act ought not to be quashed on such grounds at pre-trial stage. In this regard, this Court deems it appropriate to refer to the decision of Hon’ble Apex Court in case of Rathish Babu Unnikrishnan v. State (NCT of Delhi) [2022 (4) TMI 1434 - SUPREME COURT] wherein it was observed Based upon a prima facie impression, an element of criminality cannot entirely be ruled out here subject to the determination by the trial Court. Therefore, when the proceedings are at a nascent stage, scuttling of the criminal process is not merited.
This Court notes that in the present case, the petitioners herein have not disputed the issuance of cheques in question including the signatures on the cheque, date on the cheque as well as the amount mentioned in the cheques, though they have disputed the purpose or reason behind issuance of cheques, which as per the petitioners, was not to discharge any liability or pay any legally enforceable debt. In these circumstances, there is merit in the argument of learned counsel for complainants that the presumption under Section 118(a) and 139 of NI Act shall be in the favour of complainants, since the issuance of cheques is not disputed and it has to be presumed that the cheques in question had been issued towards some legally enforceable debt.
This Court is of the opinion that the issues raised before this Court can only be decided by the learned Trial Court at appropriate stage, on their own merits. Since a prima facie case exists against the petitioners under Sections 138/141 of NI Act, there are no reasons to quash the impugned complaint cases and orders framing notice against the petitioners.
Petition dismissed.
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2023 (10) TMI 866
Smuggling - recovery of contraband - Charas - acquittal of accused - prosecution had failed to prove its case against the accused beyond a reasonable doubt - conviction for the offence under Section 20 of the NDPS Act - applicability of Section 50 of the NDPS Act.
Whether the High Court committed any error in holding the appellant herein guilty of the offence punishable under Section 20 of the NDPS Act?
HELD THAT:- The only idea with which have beenreferred to the various decisions of this Court starting with Balbir Singh [1994 (3) TMI 173 - SUPREME COURT] till DAYALU KASHYAP VERSUS THE STATE OF CHHATTISGARH [2022 (1) TMI 1400 - SUPREME COURT] is to highlight that Section 50 of the NDPS Act has been tried to be interpreted and understood in many ways. As noted earlier, in some of the decisions of this Court, the concept of “inextricably linked to person” was applied. In other words, if the bag, etc. is in immediate possession of the accused and the search is undertaken of such bag, etc., even then, according to those decisions, Section 50 would be applicable. It could legitimately be argued that the interpretation of Section 50 restricting its scope only to the search of a person of the accused would frustrate the object as the apprehension of the person concerned may continue to subsist that he may still be implicated by the police or any other person for more stringent punishment of carrying commercial quantity by getting rid of the rigor of the mandatory provision of Section 50 by implanting the contraband in a vehicle, bag, etc. accompanying the person.
The statute clearly declared that for burglary to happen, the defendant should be physically present. In this case, although the defendant never entered the house, yet he did extend his tree snips through the window. The Court held that, “there is no meaningful difference between the snips and his arm because the penetration by the snips was merely an extension of Klein’s person.” Therefore, in the said case, the object which a person was carrying was held to be part of his body. A similar view could also have been adopted while interpreting the term “personal search”. However, in view of plain and unambiguous statutory provision, there is no scope of interpreting Section 50 in any other manner than the interpretation explained in Baldev Singh and Pawan Kumar.
It is a well-settled principle in law that the Court should not read anything into a statutory provision which is plain and unambiguous. A statute is an edict of the legislature. The language employed in a statute is the determinative factor of the legislative intent. The first and primary rule of construction is that the intention of the legislation must be found in the words used by the legislature itself. The question is not what may be supposed and has been intended but what has been said - While interpreting a provision, the Court only interprets the law and cannot legislate it. If a provision of law is misused and subjected to the abuse of process of law, it is for the legislature to amend, modify or repeal it, if deemed necessary.
Two principles of construction — one relating to casus omissus and the other in regard to reading the statute as a whole — appear to be well settled. Under the first principle a casus omissus cannot be supplied by the Court except in the case of clear necessity and when reason for it is found in the four corners of the statute itself but at the same time a casus omissus should not be readily inferred and for that purpose all the parts of a statute or section must be construed together and every clause of a section should be construed with reference to the context and other clauses thereof so that the construction to be put on a particular provision makes a consistent enactment of the whole statute. This would be more so if literal construction of a particular clause leads to manifestly absurd or anomalous results which could not have been intended by the legislature.
As such, there is no direct conflict between SK. Raju [2018 (9) TMI 845 - SUPREME COURT] and STATE OF PUNJAB VERSUS BALJINDER SINGH AND ORS. [2019 (10) TMI 1574 - SUPREME COURT]. It is pertinent to note that in SK. Raju (supra) the contraband was recovered from the bag which the accused was carrying, whereas in Baljinder Singh the contraband was recovered from the vehicle. This makes a lot of difference even while applying the concept of any object being “inextricably linked to the person”.
It has been observed in Baldev Singh [1999 (7) TMI 630 - SUPREME COURT] that drug abuse is a social malady. While drug addiction eats into the vitals of the society, drug trafficking not only eats into the vitals of the economy of a country, but illicit money generated by drug trafficking is often used for illicit activities including encouragement of terrorism. It has acquired the dimensions of an epidemic, affects the economic policies of the State, corrupts the system and is detrimental to the future of a country - It is, therefore, absolutely imperative that those who indulge in this kind of nefarious activities should not go scotfree on technical pleas which come handy to their advantage in a fraction of second by slight movement of the baggage, being placed to any part of their body, which baggage may contain the incriminating article.
The High Court was justified in holding the appellant guilty of the offence under the NDPS Act and at the same time, the High Court was also correct in saying that Section 50 of the NDPS Act was not required to be complied with as the recovery was from the bag.
Appeal dismissed.
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