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Indian Laws - Case Laws
Showing 221 to 240 of 748 Records
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2023 (9) TMI 1406
Maintainability of present appeal filed by Resolution Professional - HELD THAT:- The Resolution Professional should not have filed the present appeals. The Resolution Professional should have maintained a neutral stand. It is for the aggrieved parties, including the Committee of Creditors of Regen Powertech Private Limited (RPPL) and Regen Infrastructure and Services Private Limited (RISPL), to take appropriate proceedings or file an appeal before this Court.
The present appeals preferred by the Resolution Professional are dismissed as not entertained.
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2023 (9) TMI 1364
Tenure of Judicial members of CESTAT - age of retirement would be 62 years or not - HELD THAT:- It would be wholly unjust to allow the tenures of the four judicial members to lapse between 18 April, 2023 and 9 May, 2023. Though some of them have applied for selection in pursuance of the limited vacancy circular, this cannot deprive them of the right to assert that they are entitled to continue until the age of 62 years particularly in view of the order of this Court dated 21 August, 2018.
It is directed that the four Judicial Members, whose names are set out in the tabulated statement in the order dated 3 March, 2023, shall continue to remain in service pending final disposal of the Writ Petition.
The Writ Petition shall be listed for hearing and final disposal on 11 July, 2023.
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2023 (9) TMI 1363
Dishonour of Cheque - legally enforceable debt or not - Cheque given as security - incomplete signature on the cheque - HELD THAT:- The case of the petitioner is supported that the cheque issued was undated and given as a security. The Signature on the cheque is also incomplete - As such on the date of presentation of the cheque, the company which allegedly issued the cheque was no more existence.
It is thus clear that the mandatory provision of section 138 N.I. Act is not present in the present case. The presumption as to the debt and/or liability has also been rebutted by proving that the cheque with incomplete signature was subsequently dated and submitted 8 months after the company which allegedly issued it had closed down, with no outstanding dues.
Revision allowed.
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2023 (9) TMI 1362
Dishonour of Cheque - insufficiency of funds - Legally enforceable debt or not - HELD THAT:- The petitioner has not disputed the documents executed. In such circumstances, the Magistrate's Court convicted the petitioner under Section 255(2) of the Code of Criminal Procedure for the offence under Section 138 of the Negotiable Instruments Act and sentenced the petitioner to undergo simple imprisonment for three months and to pay a fine of Rs. 15 lakhs. It was also ordered that in case of default, the petitioner shall undergo a further period of simple imprisonment for one month.
The strenuous argument made on behalf of the revision petitioner is that an agreement, the consideration or object of which is forbidden by law and if permitted, it would defeat the provisions of any law, cannot be a debt as contemplated under the Explanation to Section 138 of the Negotiable Instruments Act. The debt is based on Ext.P8 Letter of Acknowledgment executed between the parties and since the sale agreement and Ext.P8 Letter of Acknowledgment are executed to undervalue a property, any debt arising therefrom cannot be subject matter of proceedings under Section 138 of the Negotiable Instruments Act.
After failing to honour the cheque issued in consideration of the purchase of property, now the petitioner cannot be heard to contend that the debt is not a legally enforceable debt and a proceeding under Section 138 is not maintainable.
Transaction is admitted. Issuance of cheque is not disputed. The 1st respondent has not violated any procedure prescribed in Sections 138 and 139 of the Negotiable Instruments Act. In the facts of the case, the 1st respondent cannot be heard to contend that the debt is not enforceable through Section 138 proceedings - petition dismissed.
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2023 (9) TMI 1361
Dishonour of Cheque - absence of a notice of demand being served on the company - compliance with the proviso to Section 138 of NI Act or not - company could now be arraigned as an accused or not - HELD THAT:- In the present case:- a) The company has not been made an accused nor was any notice served upon the company. b) The petitioner has been made an accused as the Director of the company, who signed and issued the cheque for and on behalf of the company.
In the absence of the company being arraigned as an accused, a complaint against the petitioner is not maintainable.
Revision allowed.
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2023 (9) TMI 1360
Dishonour of Cheque - insufficient funds - discharge of legally enforceable debt or not - HELD THAT:- As per Section 18 of the Limitation Act the acknowledgement should be in written within the limitation period but in this case there is no written acknowledgement by the petitioner. Though in the complaint there is an averment that the petitioner repaid a sum of Rs.1,20,000/- on 01.12.2016 no records produced to show that the petitioner had given written acknowledgment. Mere averments in the complaint are not sufficient to hold that there is an acknowledgment. Therefore the averments made in the complaint show that the cheque was issued for time barred debt.
In this context the learned counsel appearing for the petitioner relied on various judgments - In M/S. JAGE RAM KARAN SINGH & ANR. VERSUS STATE & ANR. [2019 (8) TMI 310 - DELHI HIGH COURT] where it was held that The Appellate Court has rightly held that the alleged responsibility of the respondent No.2, if any, had already become time-barred as on the date of the issuance of cheque and, therefore, the same cannot be said to be in discharge of a legally enforceable debt or liability.
Thus, it is clear that if cheque was issued for time barred debt then the proceedings under Section 138 of the Negotiable Instruments Act would not attract. In this case also cheque was issued for time barred debt, thereby the case laws submitted by the learned counsel for the petitioner are squarely applicable to the present facts of the case.
Petition allowed.
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2023 (9) TMI 1359
Dishonour of Cheque - vicarious liability of the director - liability on non-executive directors - Section 141 of the Negotiable Instruments Act - HELD THAT:- Where a non-executive director is sought to be made as an accused in the criminal complaint, there must be necessary averments to show as to how and in what manner they were in charge and responsible for the affairs of the company and for the conduct of the business. A mere bald statement to the effect that they are in charge and responsible for the day-to-day affairs of the company is not sufficient.
This Court is convinced that the complaint does not satisfy the requirements u/s.141 of the Negotiable Instruments Act and the petitioners, being non-executive directors, cannot be roped in as accused persons without there being a specific plea as to how and in what manner they were in charge and responsible for the conduct of the business of the company. Hence, the continuation of the proceedings as against the petitioners will only result in abuse of process of Court, which requires the interference of this Court in exercise of its jurisdiction u/s.482 Cr.P.C.
These Criminal Original Petitions are allowed.
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2023 (9) TMI 1332
Direction to respondents to pay his due gratuity along with interest - Offence involving moral turpitude - It is the contention of the petitioner that the Deputy Chief Labour Commissioner failed to appreciate the scope of Section 4(6) of the Payment of Gratuity Act, 1972 and that payment of gratuity is not a gesture of charity, rather is a recognized statutory right to be provided in favour of the employee - HELD THAT:- Section 4(6) of the Payment of Gratuity Act, 1972 specifically states ‘termination’ as a pre-requisite condition for forfeiture of gratuity in all cases, including the present allegation of “offence involving moral turpitude”.
The Supreme Court in Jorsingh Govind Vanjari Vs. Divisional Controller, Maharashtra State Road Transport Corporation, Jalgaon Division, Jalgaon, [2016 (12) TMI 1905 - SUPREME COURT] stated that termination of service was an essential pre-requisite for denial of gratuity.
The co-ordinate bench of this High Court in Steel Authority of India Ltd. & Anr. Vs. Taraknath Sengupta & Ors.,[2009 (4) TMI 1057 - CALCUTTA HIGH COURT], affirmed the right of an employee to receive payment of gratuity and postulated the need for ‘termination’ as a requisite for invoking Section 4(6) of the Payment of Gratuity Act, 1972.
Payment of gratuity is not charity, rather is a statutory right recognized by the Payment of Gratuity Act, 1972 - Section 4(6) of the Payment of Gratuity Act, 1972 stipulates specific conditions where the employer may forfeit gratuity. Through the aforementioned judgements, specifically, Jorsingh Govind Vanjari Vs. Divisional Controller, Maharashtra State Road Transport Corporation, Jalgaon Division, Jalgaon, alleged misconduct of the employee as per the report of the domestic inquiry is not enough to constitute an “offence involving moral turpitude”, rather termination of services on account of the alleged misconduct, which constitutes an offence involving moral turpitude is essential for forfeiture of payment of gratuity.
Petition allowed.
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2023 (9) TMI 1275
Execution of the Will in favour of the Plaintiffs - Will being a forged document or not? - whether there are sufficient grounds that warrant interference with the concurrent findings of the fact, upholding validity of a Will? - Second marriage and bigamy - HELD THAT:- A Will is an instrument of testamentary disposition of property. It is a legally acknowledged mode of bequeathing a testator’s property during his lifetime to be acted upon on his/her death and carries with it an element of sanctity. It speaks from the death of the testator. Since the testator/testatrix, at the time of testing the document for its validity, would not be available for deposing as to the circumstances in which the Will came to be executed, stringent requisites for the proof thereof have been statutorily enjoined to rule out the possibility of any manipulation.
Coming to the facts of the case, a careful perusal of the relevant material on record and applying the provisions and the case laws it is evident that the Will was duly executed by the testator in the presence of witnesses out of his free Will in a sound disposing state of mind and the same stands proven through the testimony of one of the attesting witnesses, namely, Suraj Bahadur Limboo who was examined as PW2 by the Civil Court. This witness categorically states that the testator executed the Will in question and, both he and the testator signed the Will in the presence of each other.
There is no evidence on record to conclude that the deceased was not in a fit or stable mental condition at the time of execution of a Will, or that a Will was executed under suspicious circumstances, or the presence of any element of undue influence - both the courts below have rightly noted that the relevant provisions were complied with, and given the well reasoned order upholding the validity of the Will, the same does not warrant interference of this court.
Second marriage and bigamy - HELD THAT:- Such submissions are not entertained as the same is not a relevant factor in deciding the main lis, which is confined to the validity of the Will.
Since the validity of the Will stands proven according to settled principles of law, consequential benefits be disbursed accordingly - appeal dismissed.
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2023 (9) TMI 1248
Dishonour of Cheque - insufficient funds - acquittal of the accused - rebuttal of the presumption - HELD THAT:- In the present case, the Learned Trial Court failed to appreciate that the accused persons failed to adduce any evidence to discharge the onus placed upon them by the presumption in law available under section 139 of the Negotiable Instruments Act. Besides making a general denial of the fact that the cheque had been issued in discharge of legal debt and/or liability, the defence failed to adduce any evidence to rebut the presumption nor did it make out a case citing the reason for which the cheque can be held to have not been issued in discharge of legal debt and/or liability. In such circumstances, the Learned Trial Court, by considering the legal presumption available under Section 139 of the Negotiable Instruments Act to have been rebutted merely on denial made by the accused/respondents, has clearly failed to appreciate the scope and purport of section 139 of the Negotiable Instruments Act. The impugned order of acquittal is thus erroneous in law as also in facts and is thus liable to be set aside.
Considering the fact that the presumption under Section 139 N.I. Act goes in favour of the complainant unless and until rebutted by the accused in accordance with law, the principal of Natural Justice requires that the complaint case be remanded back to the trial court for retrial with the direction that the Learned Magistrate shall issue notice upon both sides and allow the parties to adduce fresh evidence in respect of the presumption under Section 139 N.I. Act by calling for the relevant documents and proving the same in accordance with law and provide sufficient opportunity to the accused/opposite parties to rebut the said presumption and proceed accordingly in accordance with law.
Thus the findings of the Learned Magistrate is clearly against the provisions of Section 139 of the N.I. Act and thus not in accordance with law - Appeal allowed.
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2023 (9) TMI 1247
Dishonour of Cheque - acquittal of accused - applicability of Section 141 of the Negotiable Instruments Act on proprietorship concern - HELD THAT:- The learned Magistrate upon close examination of the evidence which has come on record, more particularly status of the drawer as reflected from the disputed cheque produced on record vide Exhs. 79 and 82, noticed that the cheque was drawn by Status Seramik India Private Limited. Though, the designation of the authorized signatory or the person who has drawn this cheque on behalf of company is not reflected in the disputed cheque, however, the fact remains that cheque has been drawn on behalf of the company. Having noticed the aforesaid fact, no error can be found with the approach of the learned Magistrate in applying provision of Section 141 of the Negotiable Instruments Act.
The issue of maintaining the prosecution under the Negotiable Instruments Act without arraigning a company as a party accused has been decided by the Hon’ble Supreme Court in the case of ANEETA HADA VERSUS GODFATHER TRAVELS & TOURS (P.) LTD. [2012 (5) TMI 83 - SUPREME COURT] has held that we arrive at the irresistible conclusion that for maintaining the prosecution under Section 141 of the Act, arraigning of a company as an accused is imperative. The other categories of offenders can only be brought in the dragnet on the touchstone of vicarious liability as the same has been stipulated in the provision itself.
This Court is of the view that no arguable case is made out for reconsideration by admitting the appeal. Hence, present application seeking leave to appeal is hereby refused. Thus, present application stands rejected.
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2023 (9) TMI 1246
Dishonour of Cheque - interference with the order of acquittal of the accused - vicarious liability of the Directors of a company - personal liability of the drawer of cheques - failure to prove charge under Section 138 of the N.I Act - HELD THAT:- There is absolutely no evidence from which criminal law under Section 138 of the N.I Act could be attributed to respondent No. 3. Therefore, recording of the order of acquittal in favour of respondent No. 3 by the learned Magistrate cannot be called into question.
The learned Advocate for the respondents has laid enough stress on the approach of the appellant court while deciding an appeal against the order of acquittal passed in favour of respondents. Series of decisions quoted above are cited by the learned Counsel for the accused. The law on this point is no longer res integra and settled by the Hon’ble Supreme Court in a Three Judges Bench decision in RAJESH PRASAD VERSUS THE STATE OF BIHAR AND ORS. [2022 (1) TMI 1396 - SUPREME COURT] - an order of acquittal can be interfered with on the ground of (a) perversity (b) non-consideration of incontrovertible evidence (c) disbelieving the testimony of witnesses on an unrealistic conjecture (d) non-consideration of direct and cogent accounts of eye-witnesses (e) non-consideration of the testimony of natural witnesses on the ground of interestedness (f) imposition of unrealistic standard of “implicit proof” rather than that of the proof beyond reasonable doubt (g) rejection of circumstantial evidence on exaggerated and capricious theory (h) rejection of circumstantial evidence based on an exaggerated and capricious theory which are beyond the plea of the accused (i) order of acquittal resulting in gross miscarriage of justice (j) perfunctory consideration of evidence (k) acquittal caused on the ground of delay etc.
Learned Magistrate held that the complainant gave loan to the company to M/s Amba Complex Private Limited and not the Directors of the company in their personal capacity. Therefore, the company was the principal accused under Section 138 read with Section 141 of the N.I Act - As drawer of the cheque respondent No. 1 is liable to be under Section 138 of the N.I Act.
If the Managing Director or Joint Director of the company takes personal responsibility to discharge the debt or liability which the company owed and issued cheque in his/their capacity, the said person is solely liable as drawer of the cheque - this Court finds that the learned Magistrate recorded an order of acquittal on misreading of evidence and the evidence on record is sufficient to hold the respondent No. 2 liable for committing offence under Section 138 of the N.I Act.
The respondent No. 1 is held guilty for committing offence under Section 138 of the N.I Act. The order of acquittal passed in favour of respondent No. 3 is not interfered with and the order acquitting the respondent No. 3 passed by the learned Magistrate is affirmed - order of acquittal is set aside - respondent No. 2 is convicted accordingly and sentenced to undergo simple imprisonment for a period of six months - appeal allowed.
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2023 (9) TMI 1186
Validity of Arbitral Award - High Court had set aside the arbitration award - inordinate delay that had occurred by not taking proper and timely action in removal of various impediments and obstacles that stood in the way of completing the project within the stipulated period of 18 months - computation and award of 10% of the contract value towards loss of overheads and another 10% towards loss of profits/profitability - HELD THAT:- Ordinarily, when the completion of a contract is delayed and the contractor claims that s/he has suffered a loss arising from depletion of her/his income from the job and hence turnover of her/his business, and also for the overheads in the form of workforce expenses which could have been deployed in other contracts, the claims to bear any persuasion before the arbitrator or a court of law, the builder/contractor has to prove that there was other work available that he would have secured if not for the delay, by producing invitations to tender which was declined due to insufficient capacity to undertake other work.
Hudson’s formula might result in double recovery as the profit being added to the profit is already subsumed within the ‘contract sum’. To avert this double-recovery, it has been suggested that the formula should be modified to ‘contract sum less overhead and profit’ Ibid. Any increase in the value of the final account for extra works such as variations contain their own element of overheads and profits. Therefore, Hudson’s formula like other formulae, which are only rough approximations of the cost impact of unabsorbed overhead, should be applied with great care and caution to ensure fair and just computation.
Arbitral tribunal in the present case has given complete go by to these principles well in place, overlooked care and caution required and taken a one-sided view grossly and abnormally inflated the damages.
The arbitral tribunal has accepted that principle of mitigation is applicable but observes that the only way BEEL could have abased the loss, was to work on Sundays or holidays. This reasoning is again ex facie fallacious and wrong. The principle of mitigation with regard to overhead expenses does not mandate working on Sundays or holidays.
The scope and ambit of the court’s power to review the awards under Section 34 of the A&C Act has been contentious viz., on the interpretation to the expression ‘in conflict with the public policy of India’. There have been legislative interventions as well as judicial pronouncements. In the context of the present case, we are required to interpret the provisions as they existed on the date on which the objections to the award were filed i.e., on 21.06.1999. Accordingly, the amendment introduced to Section 34 of the A&C Act vide Act No. 3 of 2016 with retrospective effect from 23.10.2015 and the judgments of this Court examining the amended Section 34 of the A&C Act need not be examined.
Post award interference and the extent of the second look by the courts under Section 34 of the A&C Act has been a subject matter of perennial parley. The foundation of arbitration is party autonomy. Parties have the freedom to enter into an agreement to settle their disputes/claims by an arbitral tribunal, whose decision is binding on the parties - While arbitration is a private form of dispute resolution, the conduct of arbitral proceedings must meet the juristic requirements of due process and procedural fairness and reasonableness, to achieve a ‘judicially’ sound and objective outcome. If these requirements, which are equally fundamental to all forms of adjudication including arbitration, are not sufficiently accommodated in the arbitral proceedings and the outcome is marred, then the award should invite intervention by the court.
The calculation of amounts awarded, which, in fact, amount to double or part-double payments, besides being contradictory etc. - the award has been rightly held to be unsustainable and set aside by the division bench of the High Court exercising power and jurisdiction under Section 37 read with Section 34 of the A & C Act.
Appeal dismissed.
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2023 (9) TMI 1084
Smuggling - Heroin - High Court opined that merely because Balwinder Singh3 had escaped from the car just before the point where the naka had been laid and could not be apprehended, would not be a ground to acquit him or exonerate him of the charge of conscious possession of heroin - Proof beyond reasonable doubt vis-a-vis preponderance of probability - Plea of failure to establish foundational facts - Plea of accused being in the custody of the NCB much before the naka was laid - Plea of unreliability of the testimony of the independent witness - Significance of decision in TOFAN SINGH VERSUS STATE OF TAMIL NADU [2020 (11) TMI 55 - SUPREME COURT] - HELD THAT:- The decision that declares that any confessional statement made by an accused to an officer invested with the powers under Section 53 of the NDPS Act, is barred for the reason that such officers are “police officers” within the meaning of Section 25 of the Evidence Act, a statement made by an accused and recorded under Section 67 of the NDPS Act cannot be used as a confessional statement in the trial of an offence under the NDPS Act.
Effect of Tofan Singh's verdict on Balwinder Singh's case - HELD THAT:- Now that it has been declared in Tofan Singh’s case36 (supra) that the judgements in the case of KANHAIYALAL VERSUS UNION OF INDIA [2008 (1) TMI 828 - SUPREME COURT] and RAJ KUMAR KARWAL VERSUS UNION OF INDIA [1990 (3) TMI 73 - SUPREME COURT] did not state the correct legal position and they stand overruled, the entire case set up by the prosecution against Balwinder Singh3, collapses like a House of cards. It is not in dispute that Balwinder Singh3 was not apprehended by the NCB officials from the spot where the naka was laid and that Satnam Singh5 alone was apprehended in the Indica car. The version of the prosecution is that after Satnam Singh5 was arrested, his statement13 was recorded under Section 67 of the NDPS Act wherein he ascribed a specific role to the co-accused - Balwinder Singh3 and the Sarpanch.
Once the confessional statement13 of the co-accused, Satnam Singh5 recorded by the NCB officers under Section 67 of the NDPS Act, who had attributed a role to Balwinder Singh3 and the subsequently recorded statement22 of Balwinder Singh3 himself under Section 67 of the NDPS Act are rejected in the light of the law laid down in Tofan Singh, there is no other independent incriminating evidence that has been brought to the fore by the prosecution for convicting Balwinder Singh3 under the NDPS Act. On ignoring the said confessional statements13&22 recorded before the officers of the NCB in the course of the investigation, the vital link between Balwinder Singh3 and the offence for which he has been charged snaps conclusively and his conviction order cannot be sustained.
Balwinder Singh3 deserves to be acquitted of the charge of being in conscious possession of commercial quantity of heroin under the NDPS Act.
How is Satnam Singh's case placed on a different footing - HELD THAT:- Unlike the case of Balwinder Singh, the conviction of Satnam Singh does not hinge solely on his confessional statement13 made to the NCB officials. His case is on a different footing because it also rests on other relevant factors including the testimonies of three prime prosecution witnesses namely, Sonu [PW-1], P.K. Sharma [PW-3] and O.P. Sharma [PW-5] - It is proposed to discuss that their testimonies when examined carefully, show that they had remained consistent and unfailing. There appear no material contradictions or deviations in their depositions for this Court to extend any benefit to the appellant – Satnam Singh5.
Proof beyond reasonable doubt vis-a-vis preponderance of probability - legal position - HELD THAT:- The initial burden is cast on the prosecution to establish the essential factors on which its case is premised. After the prosecution discharges the said burden, the onus shifts to the accused to prove his innocence. However, the standard of proof required for the accused to prove his innocence, is not pegged as high as expected of the prosecution.
Plea of failure to establish foundational facts - HELD THAT:- The argument advanced on behalf of the appellant – Satnam Singh that both the courts below have erred in discarding the defence taken by him to the effect that it was Sonu who was the real culprit and was apprehended by the NCB officers with the contraband, but he was let off on bribing the NCB officers, does not meet the test of preponderance of probability and has rightly been disbelieved by both the courts in the absence of any corroboration through cogent evidence.
Plea of accused being in the custody of the NCB much before the naka was laid - HELD THAT:- The records pertaining to the bill were not produced by the witness summoned and the bill did not bear the signature of any authority even to prove that the mobile phone number asserted by the appellant – Satnam Singh5 as belonging to him, stood in his name - there are no reason to take a different view.
Plea of unreliability of the testimony of the independent witness, Sonu - HELD THAT:- In the case at hand, the naka was laid by the officials of the NCB in an open area near the roundabout of Sectors 24/25, Chandigarh. Such was the location that there was no inhabitant in the vicinity and the time of the naka was an unearthly hour of 01.00 a.m. on 12th December, 2005. In this background, the two independent witnesses who were driving from Jalandhar towards Chandigarh, were flagged down by the NCB officers and joined in the investigation. Therefore, the shadow of doubt sought to be cast on the testimony of Sonu8 by claiming that he was the real culprit, is clearly a trumped up story that cannot be sustained. The other independent witness, Mukesh Kumar, had turned hostile and the prosecution did not examine him. As a consequence, the two defence witnesses, Parkash Ram and Ravi Kant Pawar produced by the appellant – Satnam Singh5 to demonstrate that Mukesh Kumar was a stock witness, would hardly be of any assistance.
The appellant – Satnam Singh has failed to make out a case for acquittal. Therefore, the order of conviction and the sentence imposed on Satnam Singh is maintained - Application disposed off.
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2023 (9) TMI 1083
Dishonour of Cheque - issuance of summons - vicarious liability of director of company - petitioner was a director or was handling the day to day affairs of the accused company at the relevant time when the cheques were issued? - HELD THAT:- Merely mentioning the designation of the accused person in the company or reproducing the phraseology of the section 141 NIA is not sufficient to attract the guilt under section 141 NIA. The law is no longer res integra that specific allegations/averments have to be made as to how and in what manner the accused alleged to have committed an offence under section 138 NIA, was responsible for, or had a role in the conduct of the business of the company, at the relevant time, when the offence is said to have been committed. Simply because the accused person was a Director or was holding some other office in the company, the vicarious liability cannot be extend to such persons.
In SMS PHARMACEUTICALS LTD. VERSUS NEETA BHALLA [2005 (9) TMI 304 - SUPREME COURT], a Three Judge Bench of the Hon’ble Apex Court held that to attract vicarious liability under section 141 NIA it is sine qua non that the person accused was in charge of and responsible for the conduct of business of the company at the relevant time when the offence was committed.
In SUNITA PALITA & OTHERS VERSUS M/S PANCHAMI STONE QUARRY [2022 (8) TMI 55 - SUPREME COURT], wherein the Hon’ble Apex Court set aside the order of the High Court rejecting the quashing petition and allowed the said appeal on the ground that the appellants therein were not the Managing Director or Joint managing Director of the accused company and nor were they signatories to the cheques in question. The Court held that the accused persons were merely independent, non-executive directors who had no role to play in the day to day affairs of the accused company.
In the present case, the Ld.MM committed an error by summoning the petitioner, who was not even an Additional Director-Non Executive in the accused company at the time when the cheques were issued and thus was not handling the affairs or the conduct of business of the accused company at the relevant time. These facts were also mentioned in the reply on behalf of the petitioner to the legal notices of the complainants. However, Ld. MM ignoring such vital aspects, mechanically proceeded to issue summons to the present petitioner.
The summoning orders qua petitioner are hereby set aside. The petitioner is acquitted for the offences alleged under section 138 NIA - Petition allowed.
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2023 (9) TMI 1082
Constitutional validity of The Goa Cess on Products and Substances Causing Pollution (Green Cess) Act, 2013 - Tax (Cess) versus Fee - Concurrent power of Central Government and State Government to legislate - whether the impugned Act, in pith and substance, relates to the fields enumerated in Entries 6, 14, 17, 18, 21 and 25 of List II, Seventh Schedule to the Constitution or whether the same relates to the field of “environment” or “environmental pollution”, which, according to the petitioners, is not covered by any of the fields in Lists II and III, Seventh Schedule to the Constitution but falls exclusively within the residuary Entry i.e. Entry 97 of List I of the Seventh Schedule to the Constitution?
HELD THAT:- Since the levy and the object of the levy is to augment resources to reduce the carbon footprint generated by the petitioners involved in handling etc. specified products and substances, the impugned Act has a direct nexus with subjects like public health, sanitation, water, gas or land. Greater effective means to combat increased carbon footprint or even disincentivising increased carbon footprint would clearly promote public health. The entries in the State list cannot be narrowly or pedantically construed. They have to be liberally and generously construed. Upon their meaningful construction, it would be difficult to agree with the Petitioner’s argument that in pith and substance, the impugned Act is an enactment not “with respect to” the entries in the State List.
The Constitution Bench in State of West Bengal V/s. Kesoram Industries Ltd. & Ors. [2004 (1) TMI 71 - SUPREME COURT], held that ample authority is available for the concept that under Entry 49 in List II the land remains a land without regard to the use to which it is being subjected. It is open for the Legislature to ignore the nature of the user and tax the land. At the same time, it is also permissible to identify, for the purpose of classification, the land by reference to its user.
In pith and substance, the impugned Act imposes a levy upon the handling or consumption or utilization or combustion or movement or transportation of certain products and substances, including hazardous substances, which upon their handling or consumption or utilization or combustion or movement or transportation causes pollution of the lithosphere, atmosphere, biosphere, hydrosphere and other environmental resources of the State of Goa.
Environment of Environment Pollution - Fields relatable exclusively to Residuary Entry 97, Union List? - HELD THAT:- The Court held that in a Federal Constitution like ours where there is a division of legislative subjects, but the residuary power is vested in Parliament, such residuary power cannot be so expansively interpreted, as to whittle down the power of the State legislature. The Court held that that might affect and jeopardize the very federal principle. The federal nature of the Constitution demands that an interpretation which would allow the exercise of legislative power by Parliament pursuant to the residuary powers vested in it to trench upon State legislation and which would thereby destroy or belittle state autonomy must be rejected.
Therefore, unless a clear case of the all-important field or subject of environment or environmental pollution being left out from the entries in the lists is made out, it would be quite unsafe to read this field or subject in the residuary entry. This would not be the appropriate manner of construing the legislative entries. Such a manner of interpretation would run counter to several decisions of the Hon’ble Supreme Court on the question of interpretation of such entries.
Is the impugned act a hybrid legislation? - HELD THAT:- There is no warrant for the broad proposition that all issues relatable to “air pollution” necessarily fall within the residuary Entry 97 of List I. In any case, since the impugned Act is aimed at augmenting the State’s revenues for having programmes and schemes to reduce the carbon footprint or since the impugned Act imposes a levy on the handling or consumption or, utilization or combustion or, movement or transportation of products and substance, which upon their handling, etc. causes pollution of the lithosphere, atmosphere, biosphere, hydrosphere and other environmental resources of the State of Goa, the same legitimately relates to the domain covered by Entry 6, 14, 17, 18, 21 and 25, particularly since these entries have to be construed liberally and broadly and not pedantically.
Once any legislation is found to substantially relate to the entries in the State or Concurrent lists, even some incidental or marginal overlap is of no consequence. In any case, once a field or subject is found to be reasonably related to the entries in the State or Concurrent lists, the Courts must be slow to place such fields or subjects in the residuary entry 97 of the Union list. “Residuary” typically means what is left out.
Clean Energy Cess - HELD THAT:- The clean energy cess, which is nothing but an excise duty, was imposed by the Parliament because the subject of “environment” or “environmental pollution” relates to the residuary Entry 97 of List I. Instead, it is clear that the levy is an excise duty and in 2010, the Parliament had legislative competence to impose such excise duty or a cess which is nothing but an increment on the excise duty. Since the petitioners point out that such levy covered imported goods as well, the levy could also be said to relate to Entry 83 of List I dealing with duties of customs, including export duties.
In any case, what is important is that the clean energy cess imposed by the Finance Act of 2010 can neither be cited as an instance where the Parliament legislated on the subject of “environment” or “environmental pollution” by relying on residuary Entry 97 in List I nor can it be said that the finance Act 2010 to the extent it imposes clean energy cess covers the field relating to the subject matter of the impugned Act.
Double Taxation - HELD THAT:- In AVINDER SINGH VERSUS STATE OF PUNJAB [1978 (9) TMI 171 - SUPREME COURT] the Hon’ble Supreme Court rejected the feeble plea that the levy was bad because of the vice of the double taxation or that the impost was unreasonable because there were heavy prior levies. The Court held that some of these contentions hardly merit consideration but have been mentioned out of courtesy to the counsel. The Court pointed out that there was nothing in Article 265 of the Constitution from which one could spin out the constitutional vice called double taxation.
Arguments based on Article 253, EPA, Air Pollution Act, NGT Act and Occupied Field - HELD THAT:- Several Constitution Bench of the Hon’ble Supreme Court have held that where more than one interpretation is possible or plausible, the interpretation that favours federalism of power and the supremacy of the State within its own sphere must be preferred, and the one that derogates from the same must be eschewed. For all the above reasons, it is found difficult to agree with the Petitioner’s arguments based upon Article 253 and the three Parliamentary legislations.
The Tax versus Fee argument - HELD THAT:- The learned Advocate General did contend that the State is entitled to defend the impugned Act on the basis that the levy was a tax relatable to Entry 49 List Il, Seventh Schedule to the Constitution. He cited some decisions in support of this contention. However, now that it is concluded that the levy imposed by the impugned Act is a fee and that the State had sufficient legislative competence to enact the impugned Act, it is not proposed to examine the issue as to whether the impugned levy can be justified as a "tax" relatable to Entry 49 List Il, Seventh Schedule to the Constitution.
Petition dismissed.
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2023 (9) TMI 1055
Dishonour of cheque - legal and enforceable liability or not - failure to rebut the presumption under Section 139 of the N.I. Act - HELD THAT:- In view of the overwhelming evidence produced at record by the accused-petitioners, their conviction on the part of the Trial Court and upholding of the same by the Appellate Court is absolutely unjustified. No doubt, presumption under Section 139 of the N.I. Act was available in favour of the complainant once the signatures on the cheques were admitted and that the cheques were issued for a legal and enforceable debt or liability, but the accused-petitioners were justified in their action of stopping the payment, inasmuch as the cheques were issued towards salary for the period, for which the complainant did not serve the company of the accused-petitioners and rather, served another company Skylark Securities Pvt. Ltd. Besides, complainant was found to have embezzled the amount payable for the salary of the guards regarding which FIR Ex.D2 was lodged against him.
The impugned judgment of conviction and order of sentence as recorded by the Courts below are set aside. The petitioners stand acquitted of the charges. The present revision petition is hereby allowed.
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2023 (9) TMI 859
Dishonour of Cheque - money lending business - whether a person can be debarred from filing and prosecuting complaint under section 138 of the Act if he is doing business of money lending without holding a valid licence and whether there is apparent conflict between section 3 of Punjab Registration of Money Lenders Act, 1938 and section 138 of the Act?
HELD THAT:- The Delhi Court in DHANJIT SINGH NANDA VERSUS STATE & ANR. [2009 (2) TMI 852 - DELHI HIGH COURT] rejected the argument that the complainant is debarred from recovering loan amount as he is not a registered money lender.
This court in Guddo Devi @ Guddi V Bhupender Kumar [2020 (2) TMI 676 - DELHI HIGH COURT] observed that there is no material to conclude that the respondent was carrying on the business of advancing loans. Merely because the respondent had lent money to three or four persons, did not lead to the inference that the respondent had been carrying out the activity of money lending as a business.
It is acceptable proposition of law that section 3 of Punjab Registration of Money Lenders Act, 1938 does not limit operation of section 138 of the Act and both are independent and mutually exclusive to each other. If a person advances a loan even without having a valid money lending licence or certificate he can institute and prosecute complaint under section 138 of the Act on basis of cheques and he has to satisfy only the mandatory requirements of section 138 of the Act.
The trial court dismissed the complaints at pre-trial stage without giving an opportunity to the petitioner to lead evidence. The IN RE : EXPEDITIOUS TRIAL OF CASES UNDER SECTION 138 OF N.I. ACT 1881. [2021 (4) TMI 702 - SUPREME COURT]as argued and cited by the counsel for the petitioner has held that Section 258 of Cr. P.C. is not applicable to a summons case instituted on a complaint and as such section 258 Cr. P.C does not have any role to play in respect of the complaints filed under Section 138 of the Act. The trial court is not vested with inherent power either to review or recall the order of issuance of process.
Petition allowed.
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2023 (9) TMI 707
infringement of copyright and passing-off - Claiming permanent injunction restraining the respondent from infringing copyright in its artistic label - prayer for a decree of injunction restraining the respondent from manufacturing, selling, offering for sale, advertising, or otherwise dealing in country liquor having the appellant’s trade mark label - HELD THAT:- For establishing goodwill of the product, it was necessary for the appellant to prove not only the figures of sale of the product but also the expenditure incurred on promotion and advertisement of the product. Prima facie, there is no evidence on this aspect. While deciding an application for a temporary injunction in a suit for passing-off action, in a given case, the statements of accounts signed by the Chartered Accountant of the plaintiff indicating the expenses incurred on advertisement and promotion and figures of sales may constitute a material which can be considered for examining whether a prima facie case was made out by the appellant-plaintiff. However, at the time of the final hearing of the suit, the figures must be proved in a manner known to law - Even assuming that the allegation of deceptive similarity in the labels used by the respondent was established by the appellant, one of the three elements which the appellant was required to prove, has not been proved. Therefore, we find that the High Court was justified in staying that particular part of the decree of the Trial Court by which injunction was granted for the action of passing-off.
Infringement of copyright - HELD THAT:- In the facts of the case, it appears that when permission was sought by the respondent to use the impugned labels, the appellant raised objections in writing to the grant of permission to the respondent to use the said labels. It is not as if those objections were not pursued, but there was a positive act on the part of the appellant of withdrawing the said objections by submitting the letters of withdrawal in which, admittedly, it was not mentioned that the withdrawal was conditional. This important factual aspect supports the order of stay granted by the High Court as regards the decree in respect of the infringement of copyright. The objections were withdrawn on 25th April 2016 and the suit was filed on 4th October 2017. A prima facie case of acquiescence by the appellant was made out by the respondent.
There is a huge pendency of suits in the Trial Courts in the State of Maharashtra. If the members of the Bar do not cooperate with the Trial Courts, it will be very difficult for our Courts to deal with the huge arrears. While a trial is being conducted, the members of the Bar are expected to act as officers of the Court. They are expected to conduct themselves in a reasonable and fair manner. The members of the Bar must remember that fairness is a hallmark of great advocacy. If the advocates start objecting to every question asked in the cross-examination, the trial cannot go on smoothly. The trial gets delayed. In the facts of the case, looking at the persistent objections raised by the learned advocate, the Court was required to record a substantial part of the cross-examination in question and answer form which consumed a lot of time of the Court.
The High Court was justified in granting the order of stay pending the final disposal of the appeal. The appeal is, accordingly, dismissed.
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2023 (9) TMI 706
Dishonour of Cheque - legally enforceable debt or not - validity of cheque - cheques in question signed by only one Director of M/s Shalini Securities Private Limited - under what circumstances Amandeep Singh had issued the cheques in question in favour of Lokesh Thakkar particularly when he had resigned as Director from the M/s Shalini Securities Private Limited in the year 2012? - HELD THAT:- M/s Shalini Securities Private Limited and Amandeep Singh at this stage cannot be allowed to take advantage of their acts committed by issuance of the cheques in question in favour of Lokesh Thakkar. Lokesh Thakkar is appearing to be the holder of cheques in question and is entitled for presumption under section 139 of NI Act. It is for M/s Shalini Securities Private Limited to establish on record by leading probable defence that the cheques in question were not issued towards discharge of legally enforceable debt and are not valid instruments in the eyes of law as Amandeep Singh was not having any authority to sign and issue the cheques in question. The issues raised in the present complaint require evidence and cannot be decided in the present petitions.
The counsel for M/s Shalini Securities Private Limited referred the judgment passed by the Supreme Court in MRS. ANITA MALHOTRA VERSUS APPAREL EXPORT PROMOTION COUNCIL (APPAREL EXPORT PROMOTION COUNCIL) [2011 (11) TMI 532 - SUPREME COURT] wherein it was observed that the criminal proceedings for the dishonour of the cheques in question against the non-executive ex-Director who has resigned from the company six years back are liable to be quashed. However, in the present case, the cheques in question were issued by Amandeep Singh from the account of M/s Shalini Securities Private Limited. The issue whether there is any liability against M/s Shalini Securities Private Limited and Amandeep Singh qua the cheques in question can only be decided by evidence during the trial.
The present petitions are dismissed with the cost of Rs. 25,000/- (Rupees Twenty Five Thousand only) each on M/s Shalini Securities Private Limited and Amandeep Singh which is to be paid to Lokesh Thakkar before the trial court on the next date of hearing.
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