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Indian Laws - Case Laws
Showing 161 to 180 of 748 Records
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2023 (10) TMI 865
Dishonour of Cheque - no contractual document has been filed by the respondent to show the terms between the petitioner and himself - legal practitioner's abuse of the process of the court - HELD THAT:- Absolutely, no contractual document has been filed by the respondent to show the terms between the petitioner and himself to show all the litigations defended by him a consolidated fee was agreed to pay by the petitioner. In the absence of such primary document, or even the statement and the complaint, then mere issuing of the cheque in the facts and circumstances of the case will not create any legal liability.
This is a classical case of legal practitioner's abuse of the process of the court. So the continuation of proceedings amounts to illegal.
Legal process can be undertaken to advance or vindicate the grievance, but it should not be permitted to be taken as an act of aberration, abuse and that too by any legal practitioner. So, the entire process is liable to be quashed - Petition allowed.
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2023 (10) TMI 800
Levy of Advertisement Tax - sign boards displaying the name and products of the business establishment - violation of Article 19(1)(a) and 19(1)(g) of the Constitution of India - HELD THAT:- A perusal of Section 132(6)(1) of the Municipal Corporation Act, would indicate that a tax on “advertisement” other than the advertisement published in newspapers, can be imposed. Sub-section (1) of Section 133 of the Act provides that Corporation may, by a special meeting bring forward a resolution to propose imposition of any tax under Section 132 defining classes of persons or description of property proposed to be taxed, amount or rate of tax to be imposed and system of assessment to be adopted. By virtue of power vested under Section 427 of the Act, respondent Corporation has made the Municipal Corporation (advertisement) bye-laws, 1976 which came to be approved by the State Government under Section 430 of the Act and it was duly published in the official gazette on 18.08.1978 as required under Section 429 and 431 of the Act of 1956. The respondent-Corporation is tracing its source of power to levy and collect advertisement tax under clause 4, 5 and 6 of the bye-laws of 1976.
Whether the display boards or sign boards or name boards as displayed by the appellants would partake the character of “advertisement” so as to attract Section 132 of the Act and thereby the demand is to be sustained? - HELD THAT:- This Court in the case of ICICI BANK & ANR, VERSUS MUNICIPAL CORPORATION OF GREATER BOMBAY & ORS. [2005 (8) TMI 666 - SUPREME COURT] has held that advertisement should have some commercial exposition or the soliciting customers to the product or service prominently shown in the advertisement.
By mere mentioning the name of the product in which the business establishment is being run would not partake the character of the advertisement until and unless by such display customers are solicited. In the absence of the display of the name board or sign board either by a business establishment or any other establishment including public offices and professionals or schools or colleges etc. it would drive the potential customer to such a situation where it would be neigh impossible to identify the business establishment from which the potential customer proposes to buy.
In the instant case, on the demand being raised both the appellants objected to the same and even before the ink on the objections so raised could dry or in other words even before it came to be considered they approached the High Court invoking the extra ordinary jurisdiction of the High court which was in due haste as such the dismissal of the petition though for a different reason which we have not subscribed our approval, yet the end result requires to be sustained and at the same breadth it is held that impugned notices are required to be adjudicated by the first respondent afresh in the light of objections filed to the said notices.
Appeal disposed off.
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2023 (10) TMI 799
Dishonour of Cheque - discharge of existing debt and liability or not - actual role of the petitioner in the issuance of alleged cheques - complainant/company alleged that the accused persons had knowledge and were fully aware of the insufficient amount in its bank account in order to honor the said cheques - vicarious liability of accused - HELD THAT:- In view of provision of Section 141(1) and proviso thereto it appears that at the threshold of the case liability is on the complainant to make averment in the complaint regarding responsibility of the accused and accused can also furnish some sterling incontrovertible material or acceptable circumstances to substantiate the contention that alleged offence was committed without his knowledge.
In fact, the actual role of the petitioner in the company, in my opinion, cannot be said to be in special knowledge of the complainant whereas role of the petitioner/accused in the company is surely within the special knowledge of the petitioner/accused himself, and that could have been substantiated by any sterling material. According to Section 141 of the NI Act, complainant is only supposed to have knowledge of the person in charge of the company as it is special knowledge of the petitioner/accused.
In this case, petitioner/accused could not show any sterling material that he was not really concerned with the issuance of cheque in order to persuade this Court to quash the proceeding.
The instant revision application is liable to be dismissed - Application dismissed.
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2023 (10) TMI 798
Dishonour of Cheque - vicarious liability of Director and Additional Director - specific averments against the petitioners herein that they were responsible and in-charge of the day-to-day affairs of the accused company, being its director and additional director - HELD THAT:- In the present case, the cheque was issued by the accused company in favour of complainant, towards the repayment of dues in the normal course of business transactions. The said cheque was handed over to the AR of complainant company by both the petitioners upon assurance that the same would get encashed, and the cheque was signed by the petitioner Ramji Sharma. The cheque upon presentation was dishonoured on 19.05.2018, whereas the application under Section 7 of IBC, 2016 was allowed by the Hon’ble NCLT on 08.06.2018, i.e. subsequent to dishonor of cheque.
Thus, in view of the ratio of Hon’ble Supreme Court in P. MOHANRAJ & ORS. VERSUS M/S. SHAH BROTHERS ISPAT PVT. LTD. [2021 (3) TMI 94 - SUPREME COURT], reiterated in M/S. NAG LEATHERS PVT. LTD. VERSUS M/S. DYNAMIC MARKETING AND ANOTHER [2022 (4) TMI 1153 - SUPREME COURT] and NARINDER GARG AND ORS. VERSUS KOTAK MAHINDRA BANK LTD. AND ORS. [2022 (3) TMI 1534 - SUPREME COURT], the proceedings under Section 138/141 of NI Act can continue against the directors and persons responsible and incharge of accused company, i.e. the petitioners herein even after moratorium period under Section 14 of IBC, 2016 has commenced.
This Court notes that Section 210 deals with the procedure to be followed by a Magistrate when there is a complaint case and police investigation in progress, in respect of the ‘same offence’, and provides that in such a case, the Magistrate shall stay the proceedings before it. In the case at hand, while the offence alleged in the FIR registered in Noida, Uttar Pradesh on the complaint of petitioner Ramji Sharma relates to forgery, cheating, breach of trust committed by some other persons in relation to some cheques, the present complaint case pertains to offence under Section 138/141 of NI Act for dishonor of cheque in question - the arguments regarding applicability of Section 210 of Cr.P.C. are bereft of any merit.
However, it is also clarified that if pursuant to conduct of investigation in the said FIR and trial if any, any crucial fact qua the financial capacity or the balance in bank accounts of the accused company emerges, the petitioners shall be at liberty to bring the same to the knowledge of the learned Trial Court during the course of trial/arguments and the Court shall consider the same as per law.
This Court finds no reasons to quash the present proceedings under Section 138/141 of NI Act - Petition dismissed.
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2023 (10) TMI 719
Assault - Triple-murder - acquittal of the accused - acquittal of accused.
Whether any prejudice was caused to the appellant, as his appeal was heard in the absence of his advocate? - HELD THAT:- The High Court has, thus, committed illegality by deciding the appeal against the conviction preferred by the appellant without hearing the appellant or his advocate. After finding that the advocate appointed by the appellant was absent, the High Court ought to have appointed a lawyer to espouse his cause.
In view of the wide powers conferred by Section 386 of Cr.PC, even an Appellate Court can exercise the power under Section 216 of altering or adding the charge. However, if the Appellate Court intends to do so, elementary principles of natural justice require the Appellate Court to put the accused to the notice of the charge proposed to be altered or added when prejudice is likely to be caused to the accused by alteration or addition of charges. Unless the accused was put to notice that the Appellate Court intends to alter or add a charge in a particular manner, his advocate cannot effectively argue the case - the Court can grant a short time to the advocates for both sides to prepare themselves for addressing the Court on the altered or added charge.
There is no reason recorded in the impugned judgment to show that Section 34 of IPC was applicable. There is no discussion on this aspect in the judgment. Only in the operative part (paragraph 15), without assigning any reasons, the High Court held that the appellant was liable to be convicted for the offence punishable under Section 302, read with Section 34 of IPC. As stated earlier, there is a complete absence of any reason for concluding that Section 34 of IPC was attracted. The High Court has not recorded a finding that there was sufficient evidence to prove that the four accused who were ultimately convicted had done the criminal act in furtherance of a common intention.
There is no material to prove the existence of common intention which is the necessary ingredient of Section 34 of IPC. In this case, there is no overlap between a common object and a common intention. Therefore, the conviction of the appellant under Section 302, read with Section 34 will have to be set aside - the appellant's conviction for the offence punishable under Section 302, read with Section 34 of IPC. However, the appellant's conviction for the offence punishable under Section 201 of IPC is confirmed. The appellant has already undergone the sentence for the said offence. Therefore, the bail bonds of the appellant stand cancelled.
Appeal allowed partly.
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2023 (10) TMI 718
Dishonour of Cheque - insufficiency of funds - legally enforceable debt or liability - discharge of partial liability - Section 138 of NI Act.
HELD THAT:- The issue of existence of legally enforceable debt or liability is also a disputed question of fact and when the complainant has averred in the impugned complaint that the petitioners herein had obtained a loan facility to the tune of Rs. 1.5 crores, which is also not disputed by the petitioner, and that petitioners had issued the cheques in question in partial discharge of the said liability, and further when the signatures on the cheque have not been disputed, this Court is of the opinion that it cannot come at any conclusion in a petition under Section 482 of Cr.P.C. that there was no legally enforceable debt or liability, which is also a matter of trial.
In the present case, the petitioners herein had entered into a loan agreement with the erstwhile Capital First Ltd. in March, 2017. However, in 2018, Capital First Ltd. had amalgamated with IDFC Bank Limited by virtue of amalgamation order dated 12.12.2018 passed by Hon’ble NCLT, Chennai Bench. After the amalgamation, all the loans availed by various borrowers including the loan availed by the petitioners herein was also transferred to IDFC Bank Limited, and further that all the properties, rights, liabilities and duties of Capital First Ltd. were vested in IDFC Bank Limited including all contractual liabilities owed by the present petitioners to Capital First Ltd. - the contentions regarding complaint in question being not maintainable since it was filed by IDFC First Bank Ltd. and not Capital First Ltd. in whose name the cheques had been issued, cannot be appreciated at this stage when the complainant has prima facie shown that the erstwhile Capital First Ltd. had amalgamated into the present complainant company alongwith all properties, rights, asset, liabilities including contractual liabilities such as the present loan facility.
This Court finds no ground to quash summoning order dated 20.08.2019 passed by learned Trial Court against petitioners in both the Complaint Cases, without affording an opportunity to the complainant to present its case before the learned Trial Court - Petition disposed off.
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2023 (10) TMI 717
Dishonour of Cheque - vicarious liability - applicability of Section 141 of NI Act to a sole proprietorship firm - whether the application filed under Section 243 read with Section 293 of Cr.P.C. read with Section 45/73 of Indian Evidence Act, 1872 for sending the cheque in question to FSL for ink dating needs to be allowed? - HELD THAT:- This Court notes that the petitioner herein had admitted before the learned Magistrate, at the stage of framing of notice under Section 251 of Cr.P.C. as well as the time of recording of his statement under Section 313 of Cr.P.C., that he had signed the cheque in question.
In the present case, the revisionist had admitted his signatures on the cheque in question and that the particulars have also been filled by him in his own handwriting except the date. Even if, the contention of the revisionist that the date was not filled by him is considered as correct, for the sake of arguments, the same cannot be considered as 'material alteration'. Section 138 NI Act does not contemplate that whenever any cheque is issued then the drawee must fill all the details in the cheque in his own handwriting for its validity u/s 138 NI Act. Even if, the contention of the revisionist is accepted as regard undated cheque, the same would be covered within the provision of Section 138 NI Act, so long as, the revisionist has admitted his signatures on the cheque.
The Hon’ble Apex Court in case of T. NAGAPPA VERSUS Y.R. MURALIDHAR [2008 (4) TMI 789 - SUPREME COURT] had observed that the accused should be given fair trial to lead evidence in his defence, however, it was also categorically held that the Court being the master of the proceedings has to determine as to whether the application of the accused in terms of Section 243 Cr.P.C. is bona fide or not or whether the accused intends to bring on record a relevant material. The facts of the present case are, undoubtedly, differentiable from the facts of the said case.
This Court does not find any infirmity with the orders passed by both the Courts below by way of which the application filed by the petitioner under Section 243 read with Section 293 of Cr.P.C. read with Section 45/73 of Indian Evidence Act, 1872 was dismissed. Accordingly, the orders of dismissal of application seeking summoning of Director, FSL also warrants no interference.
Whether the petitioner can be held liable, by virtue of Section 141 of NI Act, even if it is proved that he is not the sole proprietor of the accused firm? - HELD THAT:- This Court finds merit in the argument of learned counsel for petitioner that Section 141 of NI Act has no application to a sole proprietorship firm, and under Section 138 of the Act, no other person except the sole proprietor can be held liable.
In this Court’s opinion, the petitioner should not be denied an opportunity during the course of trial to examine witnesses in defence to prove the status of proprietorship firm and as to who was the sole proprietor of the firm and in whose name was the bank account maintained. In view of the same, this Court is of the opinion that the application seeking summoning of defence witnesses, i.e. concerned bank official and the official from VAT department, filed by the petitioner ought to be allowed.
Petition allowed.
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2023 (10) TMI 716
Reference case under Section 21(5) of the Chartered Accountants Act, 1949 - allegations reportedly arising out of inspection under Section 209(A) of the Companies Act, 1956 - alleged misconduct under Clauses (7), (8) and (9) of Part I of the Second Schedule to the Act, the Disciplinary Committee was constituted under Section 21 of the Act.
HELD THAT:- The Institute of Chartered Accountants of India is a statutory body created by an Act of Parliament, i.e., The Chartered Accountants Act, 1949. In accordance with Section 9 of the Act, the management of the affairs of the Institute are vested in the Central Council. The Council performs its function through three different standing committees constituted under Section 17 of the Act and various other committees. One of the standing committees of the Institute is the Disciplinary Committee. The function of the Institute is to regulate the provisions of the Act and it is also empowered to take action against its members for any misconduct as contemplated in the Act and relevant regulations framed thereunder. Section 21 of the Act prescribes the procedure to be followed with regard to an inquiry relating to the misconduct of the members of the Institute.
As held in D.K. Agrawal vs. Council of the Institute of Chartered Accountants of India [2021] 131 taxmann.com 103 Committee., 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 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.
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 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 Council has failed to give its own independent findings. The recommendations made by the Council is not supported by independent reasons. The recommendations, have been made mechanically by the Council. Recording of reasons is a principle of natural justice and every judicial/quasi judicial order must be supported by reasons to be recorded in writing. It ensures transparency and fairness in the decision making process. The person who is adversely affected wants to know as to why his submissions have not been accepted - An unreasoned decision may be just, but it may not appear to be so to the person affected. A reasoned decision, on the other hand, will have the appearance of fairness and justice.
The recommendations of the Council need not agreed with - the proceedings be filed by the Institute - Reference disposed.
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2023 (10) TMI 667
Smuggling - violation of the mandatory provisions of Section 52A (2) of the NDPS Act - procedure not followed in drawing the samples and seizing the alleged narcotic substance - HELD THAT:- It is an admitted position on record that the samples from the seized substance were drawn by the police in the presence of the gazetted officer and not in the presence of the Magistrate. There is no material on record to prove that the Magistrate had certified the inventory of the substance seized or of the list of samples so drawn.
In the absence of any material on record to establish that the samples of the seized contraband were drawn in the presence of the Magistrate and that the inventory of the seized contraband was duly certified by the Magistrate, it is apparent that the said seized contraband and the samples drawn therefrom would not be a valid piece of primary evidence in the trial. Once there is no primary evidence available, the trial as a whole stands vitiated.
The failure of the concerned authorities to lead primary evidence vitiates the conviction and as such, the conviction of the appellant deserves to be set aside. The impugned judgment and order of the High Court as well as the trial court convicting the appellant and sentencing him to rigorous imprisonment of 10 years with fine of Rs.1 lakh and in default of payment of fine to undergo further imprisonment of one year is hereby set aside - the appellant has already undergone more than 6 years of imprisonment out of 10 years awarded to him. He is on bail and has been granted exemption from surrender by this Court. Therefore, his bail bonds, if any, stands cancelled.
Appeal allowed.
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2023 (10) TMI 585
Dishonour of Cheque - insufficient funds - vicarious liability - prosecution against the Trust and the Managing Trustee - private or public charitable Trust - juristic person for the purpose of the N.I. Act or not - whether Trust, either private or public, is a company in terms of Section 141 of the N.I. Act? - HELD THAT:- On scrutiny of the case put up by the accused before the trial court and the Appellate Court, it appears that the accused raised contentions before the trial court by filing a statement under Section 313(5) of Cr.P.C. that the accused have not committed any offence. The accused have not issued cheque for Rs. 9,50,000/- to the complainant. The 2nd accused was one of the Managing Trustees of Prana Educational and Charitable Trust which is a non profitable charitable institution. That trust is not conducting real estate business. Rameshan, husband of the 2nd accused, was having close friendship with the husband of the complainant, and during that time, the accused and her husband deposited amount in Prana Charitable Trust - The complainant filed the case misusing the cheque issued as a security by writing the amount and date in that cheque. The complainant is not entitled to get any amount from the accused. The accused are not liable to pay compensation or interest to the complainant.
The conviction imposed by the trial court and confirmed by the Appellate Court does not require any interference. Coming to the sentence, the same also is very reasonable and the same also does not require any interference - Revision petition dismissed.
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2023 (10) TMI 584
Dishonour of Cheque - insufficient funds - acquittal of accused - discharge of a legally enforceable debt or not - complainant proved the offence under Section 138 of the NI Act against the accused beyond reasonable doubt or not - HELD THAT:- The claim of the complainant before a competent Senior Civil Judge claiming huge amount of Rs. 75,000/- was disbelieved by holding the amount due was only Rs. 25,000/-. So, in such circumstances, it is really doubtful as to whether accused could have issued Ex.P-1 for a sum of Rs. 75,000/-. So, important link is missing in the evidence to connect Ex. P-1 with that of a legally enforceable debt pertaining to the chit transaction. Though, there is no dispute about the factum of dishonor of cheque but the complainant has to establish that it was issued towards discharge of a legally enforceable debt. The evidence on record would not at all prove all those aspects. This Appeal is against an order of acquittal. Having gone through the judgment of the trial Court, as above, it cannot be held that the learned III Additional Judicial Magistrate of First Class decided the matter with any unreasonable grounds.
There are no reasons whatsoever to interfere with the judgment in Calendar Case No. 101 of 2002, dated 20.06.2007, on the file of the Court of III Additional Judicial Magistrate of First Class, Kakinada. The complainant miserably failed to prove the offence under Section 138 of the NI Act against the respondent/accused beyond reasonable doubt.
Appeal dismissed.
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2023 (10) TMI 487
Dishonour of Cheque - retirement from the partnership firm prior to the issuance of the cheque in question - vicarious liability under Section 141 (1) of the N.I. Act - HELD THAT:- In the light of the dictum laid down in Ashok Shewakramani’s case [2023 (8) TMI 599 - SUPREME COURT], it is evident that a vicarious liability would be attracted only when the ingredients of Section 141(1) of the NI Act, are satisfied. It would also reveal that merely because somebody is managing the affairs of the company, per se, he would not become in charge of the conduct of the business of the company or the person responsible to the company for the conduct of the business of the company. A bare perusal of Section 141(1) of the NI Act, would reveal that only that person who, at the time the offence was committed, was in charge of and was responsible to the company for the conduct of the business of the company, as well as the company alone shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished.
The averments in the complaint filed by the respondent are not sufficient to satisfy the mandatory requirements under Section 141(1) of the NI Act. Since the averments in the complaint are insufficient to attract the provisions under Section 141(1) of the NI Act, to create vicarious liability upon the appellant, he is entitled to succeed in this appeal.
The appellant has made out a case for quashing the criminal complaint in relation to him, in exercise of the jurisdiction under Section 482 of Cr.PC.
Appeal allowed.
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2023 (10) TMI 486
Conversion of foreign exchange rate of awarded sum money - Relevant date for conversion of the awarded sum from USD to Indian rupees - Whether the award contained any stipulation of making the payment in Indian currency? - HELD THAT:- The terms of the agreement are to be looked into for the purposes of deciding the question regarding the date of conversion.
In the entire agreement, the relevant paragraphs dealing with the payments and advances and the payments of work in progress is laid down in paragraphs 31 and 32 and its sub-paragraphs. Paragraph 32.6 of the agreement states that payments against monthly account bills shall be made in Iraqi Dinars and US Dollars out of which 35 percent would be in Iraqi Dinars and 65 percent would be in US Dollars. Further, paragraph 32.8 defines the exchange rate for the purposes of conversion of Iraqi Dinars to US Dollars and the exchange rate being 01 Iraqi Dinar equivalent to 3.37778 US Dollars.
There are no mention of payment being made in the Indian Currency i.e. INR from the agreement. Once there is no contract between the parties of making payment in Indian Currency INR, then, there would be no question of determining or finding out any date of conversion.
Whether the award contained any stipulation of making the payment in Indian currency? - HELD THAT:- The agreement had stipulated that the Iraqi Dinar would be convertible to US Dollars at the following rate i.e. 1 Iraqi Dinar = 3.37778 US Dollars. The award does not permit or grant the liberty to the appellant to make the amount payable in Iraqi Dinars to be converted into Indian Currency (INR) - Apart from the amount of Bank Guarantee which had been encashed by the NPCCL of Rs.20 Lakhs, the other amount awarded is in Iraqi Dinars only.
Whether the agreement, award or the judgment of this Court dated 24.02.2015 provided for payment of the awarded amount in Indian currency? - HELD THAT:- The award does not permit payment of the awarded amount in Indian currency except the amount of Rs. 20 lacs with admissible interest against the encashment of bank guarantee. As a necessary corollary, there would be no question of the amount awarded in Iraqi Dinars to be converted in Indian currency. The only conversion permissible was in US Dollars. In the above back drop, the question referred by the impugned judgment to be answered by this Court may not arise at all.
Thus, there is no occasion or requirement for determining or fixing any date for conversion of the US Dollars into Indian Currency (INR). The payment has to be made in the foreign currency only along with computed interest. It would be open for the parties to pay and the other parties claiming to accept the Indian currency either at the current rate or at the agreed rate but this Court cannot meddle with the terms of the agreement or the award or the directions contained in the judgment of this Court dated 24.02.2015.
Appeal disposed off.
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2023 (10) TMI 418
Dishonour of Cheque - existence of a legally enforceable debt - discharge of initial onus of proving the essential facts underlying the offence under Section 138 of the NI Act - signature on the cheque was admitted by the accused - rebuttal of statutory presumption under Section 139 NI Act -
Whether the accused can be said to have discharged his 'evidential burden', for the courts below to have concluded that the presumption of law supplied by Section 139 had been rebutted?
HELD THAT:- The presumption under Section 139 was rebutted by putting questions to the appellant in his cross examination and explaining the incriminating circumstances found in the statement recorded under Section 313 of Cr.P.C.
Section 139 of the NI Act, which takes the form of a ‘shall presume’ clause is illustrative of a presumption of law. Because Section 139 requires that the Court ‘shall presume’ the fact stated therein, it is obligatory on the Court to raise this presumption in every case where the factual basis for the raising of the presumption had been established. But this does not preclude the person against whom the presumption is drawn from rebutting it and proving the contrary as is clear from the use of the phrase ‘unless the contrary is proved’ - As soon as the complainant discharges the burden to prove that the instrument, say a cheque, was issued by the accused for discharge of debt, the presumptive device under Section 139 of the Act helps shifting the burden on the accused. The effect of the presumption, in that sense, is to transfer the evidential burden on the accused of proving that the cheque was not received by the Bank towards the discharge of any liability. Until this evidential burden is discharged by the accused, the presumed fact will have to be taken to be true, without expecting the complainant to do anything further.
In order to rebut the presumption and prove to the contrary, it is open to the accused to raise a probable defence wherein the existence of a legally enforceable debt or liability can be contested. The words ‘until the contrary is proved’ occurring in Section 139 do not mean that accused must necessarily prove the negative that the instrument is not issued in discharge of any debt/liability but the accused has the option to ask the Court to consider the non-existence of debt/liability so probable that a prudent man ought, under the circumstances of the case, to act upon the supposition that debt/liability did not exist - The nature of evidence required to shift the evidential burden need not necessarily be direct evidence i.e., oral or documentary evidence or admissions made by the opposite party; it may comprise circumstantial evidence or presumption of law or fact.
There is a fundamental flaw in the way both the Courts below have proceeded to appreciate the evidence on record. Once the presumption under Section 139 was given effect to, the Courts ought to have proceeded on the premise that the cheque was, indeed, issued in discharge of a debt/liability. The entire focus would then necessarily have to shift on the case set up by the accused, since the activation of the presumption has the effect of shifting the evidential burden on the accused. The nature of inquiry would then be to see whether the accused has discharged his onus of rebutting the presumption. If he fails to do so, the Court can straightaway proceed to convict him, subject to satisfaction of the other ingredients of Section 138. If the Court finds that the evidential burden placed on the accused has been discharged, the complainant would be expected to prove the said fact independently, without taking aid of the presumption. The Court would then take an overall view based on the evidence on record and decide accordingly.
The fundamental error in the approach lies in the fact that the High Court has questioned the want of evidence on part of the complainant in order to support his allegation of having extended loan to the accused, when it ought to have instead concerned itself with the case set up by the accused and whether he had discharged his evidential burden by proving that there existed no debt/liability at the time of issuance of cheque.
There are no slightest of hesitation in concluding that this case calls for interference, notwithstanding that both the courts below have concurrently held in favour of the accused - the judgment of the High Court of Punjab and Haryana at Chandigarh set aside - appeal allowed.
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2023 (10) TMI 417
Seeking partial setting aside of award - patent illegality - extra Cost on increased Establishment Cost including Overheads, Salary of Regular and Contractual Staff, Inspection Vehicle hire Charges, etc. due to prolongation of contract - extra cost due to extension of CAR and WC Insurance Policy - Loss of Profit because of prolongation of contract - Extra cost due to depreciation due to prolongation of contract period - additional cost due to use of 04 bolt fastening system for radius beyond 700 mt - abnormal increase in quantity of track fastenings - Additional GST burden - HELD THAT:- AT rejected the claims by observing that the BOQ specified in the Contract was not based on number of bolts to be used but on the radius of the curve. AT also observed that the Contractor was unable to convince that the increase in number of bolts was due to the new design that the DMRC required the Contractor to follow. According to the AT, the DMRC’s insistence on following ETAG001 (European Guideline) was never objected to by the Contractor at the time of design change suggested by the DMRC or that the same was not required. AT has further observed that even before the AT, the Contractor was unable to link the design change to the requirement of conformity with the European standard and the increase in the number of bolts.
Even otherwise, it is seen that in terms of Clause 5.1 of the Contract, the Contractor was responsible for submitting the design in accordance with Clause 6.3.2 of the Contract, which was subject to DMRC’s approval. Design was submitted by the Contractor on 03.06.2015 and the same was found to be deficient by DMRC which was conveyed to the Contractor vide its letter dated 08.06.2015. It is observed by AT in the award that the Contractor did not challenge DMRC’s comments on the design submitted by it and on its own re-submitted a new bolt calculation on 19.09.2015 - the rates quoted in Item 8 of the BOQ are for quantities that are measured in metre length of the track of various radii. The quantities of individual items of the track fitting system was neither sought for by DMRC in the BOQ nor quoted by the Contractor when they submitted their rates. It would not have been possible for the AT to order variation in quantities on account of increase in the number of bolts installed, due to the design change, as was claimed by the Contractor, since, the same may have been contrary to the BOQ. In any case, the AT has dealt with the claim in a judicial manner, referring to the contract provisions and the evidence produced by the parties.
Reimbursement of increased GST - HELD THAT:- AT allowed claim to the extent of 1.40% on account of the concession initially agreed to by DMRC. In the considered opinion of this Court, the AT had rightly relied upon the aforesaid clause which restricted the Contractor from seeking any adjustment in the Contract price either on the increase or decrease in cost as a consequence of change in tax duties/levies. In this regard, it is pertinent to note that AT also noted that the Contractor failed to provide any substantiation on the amount of input credit availed by it. This contention is rejected accordingly.
Petition dismissed.
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2023 (10) TMI 383
Dishonour of Cheque - application preferred by the respondent / complainant under Section 311 for re-examination of the complainant has been allowed - validity of new documents filed for examination - HELD THAT:- From perusal of the impugned order passed by the trial Court, it appears that after completion of the trial, the respondent / complainant has obtained certain new documents, which relates to the Proprietorship of the petitioner / accused Firm. It is also alleged that letter of authority has also been issued in favour of the petitioner / accused. Therefore, in view of the new documents filed by the respondent re-examination of the petitioner / accused is just and proper.
The scope and object of Section 311 of Cr.P.C. is to enable the Court to determine the truth and to render a just decision after discovering all relevant facts and obtaining proper proof of such facts, to arrive at a just decision of the case. It is also notable that such power must be exercised judiciously and not capriciously or arbitrarily, therefore, it is not a case of lacuna.
Hon'ble the apex Court in the case of RAJENDRA PRASAD VERSUS THE NARCOTIC CELL THROUGH ITS OFFICER IN CHARGE, DELHI [1999 (7) TMI 707 - SUPREME COURT] where it was held that We cannot therefore accept the contention of the appellant as a legal proposition that the Court cannot exercise power of re-summoning any witness if once that power was exercised, nor can the power be whittled down merely on the ground that prosecution discovered latches only when the defence highlighted them during final arguments. The power of the court is plenary to summon or even recall any witness at any stage of the case if the court considers it necessary for a just decision.
On cumulative consideration of the facts of the present case, this Court is of the view that the impugned order of the trial Court does not suffer from any legal infirmity, which may be called for any interference, therefore, present petition filed under Section 482 of Cr.P.C. is hereby dismissed.
Petition dismissed.
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2023 (10) TMI 382
Dishonour of Cheque - funds insufficient - compounding of offence - compromise of matter reached at - HELD THAT:- Having taken note of the fact that during the pendency of the instant petition the complainant-Bank and the petitioner-accused have compromised the matter and now the complainant-Bank does not intend to pursue the complaint under Section 138 of the NI Act and the complainant-Bank 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 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-Bank and the complainant-Bank has no objection in case the judgment of conviction, dated 23.02.2022, and order of sentence, dated 25.02.2022, passed by the learned Chief Judicial Magistrate Mandi, District Mandi, H.P., and affirmed by the learned Sessions Judge, Mandi, District Mandi, H.P., are quashed and set-aside, 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, judgment of conviction, and order of sentence passed by the learned Chief Judicial Magistrate Mandi, District Mandi, H.P. and affirmed by the learned Sessions Judge, Mandi, District Mandi, H.P. is quashed and set-aside - Petition disposed off.
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2023 (10) TMI 380
Appointment to the post of Income Tax Inspectors - notice issued by the Income Tax Department, Kerala for recruitment of meritorious sports persons against sports quota vacancies for the year 2016-2017 - HELD THAT:- Sports persons who are already employed in Central Government or State Government or PSU, under the advertisement issued on 10.08.2016 are required to furnish NOC form the present employer and such NOC is to be enclosed with the application.
Admittedly, the petitioner satisfies the qualification prescribed for recruitment against the sports quota vacancies. She secured 4th rank in the recruitment examination. However, she was denied appointment only on the ground that she failed to enclose the NOC from her employer (Central Railways) along with her application.
As learned Senior Counsel would firstly submit that Clause 12 of the advertisement, does not specifically refer to NOC to be furnished by applicants employed with the Railways. In any case, the Counsel would point out that the Central Railways has issued the NOC for the petitioner on 28.05.2018 and the same is marked as Annexure P-19 with the additional document filed by the petitioner.
As submitted that the recruiting Department should consider the petitioner for appointment against the sports quota vacancy by virtue of eligibility and merit position. It is further pointed out that a vacancy of ITO/Tax Assistant continues to exist as one of the selectees had not joined and the petitioner can be accommodated in the said vacancy.
To receive instruction on the above submission on whether the petitioner can be accommodated on the strength of the current employer’s NOC dated 28.05.2018, Mr. Arijit Prasad, learned Senior Counsel prays for time.The matter be listed after two weeks.
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2023 (10) TMI 345
Dishonour of Cheque - insufficient funds - settlement of matter done between parties - compounding of offence - imposition of compounding fee - HELD THAT:- Having taken note of the fact that the parties 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 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, as per the compromise deed, dated 29.09.2023, prayer for compounding the offence can be accepted in terms of the aforesaid judgments passed by the Hon’ble Apex Court - the parties are permitted to get the matter compounded in light of the compromise arrived inter se them.
The present matter is ordered to be compounded and the impugned judgment of conviction is quashed and set aside - the petitioner-accused is acquitted of the charge framed against him under Section 138 of the Act.
Imposition of Compounding fee - HELD THAT:- Undisputedly, the total amount of cheque is Rs.1,60,000/-, however, the learned counsel for the petitioner submitted that the petitioner is a poor person and the imposition of compounding fee may be reduced - In case K. Subramanian vs. R. Rajathi [2009 (11) TMI 1013 - SUPREME COURT], the Hon’ble Apex Court had issued the guidelines with respect to the imposition of compounding fee held that The competent court can of course reduce the costs with regard to the specific facts and circumstances of a case, while recording reasons in writing for such variance. Bona fide litigants should of course contest the proceedings to their logical end.
Therefore, taking into consideration the law laid down by the Hon’ble Apex Court and the financial condition of the petitioner, as he is a poor person, since the competent Courts can reduce the compounding fee with regard to the specific facts and circumstances of the case, the petitioner is directed to deposit token compounding fee of Rs.8,000/- i.e., 5% of the cheque amount, only with the State Legal Services Authority, Shimla, H.P., within four weeks from today.
Petition disposed off.
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2023 (10) TMI 313
Dishonour of Cheque - insufficient funds - settlement of matter done between parties - compounding of offence - imposition of compounding fee - HELD THAT:- Having taken note of the fact that the parties 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 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, as per the compromise deed, dated 09.03.2023, prayer for compounding the offence can be accepted in terms of the aforesaid judgments passed by the Hon’ble Apex Court. - the parties are permitted to get the matter compounded in light of the compromise arrived inter se them.
The present matter is ordered to be compounded and the impugned judgment of conviction is quashed and set aside - the petitioner-accused is acquitted of the charge framed against him under Section 138 of the Act.
Imposition of Compounding fee - HELD THAT:- Undisputedly, the total amount of cheque is Rs.4,57,000/-, however, the learned counsel for the petitioner submitted that the petitioner is a poor person and the imposition of compounding fee may be reduced - In case K. SUBRAMANIAN VERSUS R. RAJATHI REP. BY P.O.A.P. KALIAPPAN [2009 (11) TMI 1013 - SUPREME COURT], the Hon’ble Apex Court had issued the guidelines with respect to the imposition of compounding fee held that The competent court can of course reduce the costs with regard to the specific facts and circumstances of a case, while recording reasons in writing for such variance. Bona fide litigants should of course contest the proceedings to their logical end.
Therefore, taking into consideration the law laid down by the Hon’ble Apex Court and the financial condition of the petitioner, as he is a poor person, since the competent Courts can reduce the compounding fee with regard to the specific facts and circumstances of the case, the petitioner is directed to deposit token compounding fee of Rs. 20,000/- (rupees twenty thousand), only with the H.P. State Legal Services Authority, Shimla, within four weeks from today.
Petition disposed off.
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