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Indian Laws - Case Laws
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2023 (8) TMI 1389
Abduction - Relevance and admissibility of the FIR - Conduct of the Accused - Status of the Bayan Tahriri/Written Statement of the deceased - testimony of a Prosecution Witness.
Whether the Supreme Court, in appeal against acquittal, can consider the High Court's judgment dated 13.03.2007 passed in the Habeas Corpus Writ Petition, which was not part of the evidence produced (although it was part of the Trial Court record) and was not relied upon by the prosecution before the Trial Court, as a piece of incriminating evidence in the nature of a Public Document and, if yes, up to what extent? - HELD THAT:- The judicial notice of any fact is generally not taken in criminal matters, but the present matter stands on an altogether different footing in view of what has been noted hereinbefore. It falls in the category of rarest of rare cases and hence, it requires a different approach. This Court, in its considered opinion, finds that the judgment in the Habeas Corpus Petition was passed on the basis of notes of the Inspecting Judge of the High Court, the report of Additional Director General of Police, statement of CW-1 Smt. Lalmuni Devi recorded in Court before the Magistrate under the directions of High Court, her affidavit filed before the High Court, her statement/disclosure in Bhojpuri before one of Judges hearing the Habeas Corpus petition and several other authoritative materials after giving the opportunity of hearing to the parties, including the Accused of the crime in question.
The judgment dated 13.03.2007, which is a public document, is well discussed and is based upon authoritative materials and was passed in consonance with the doctrine of audi alteram partem. Moreover, it has a torch bearer effect over the facts of the case. Thus, it qualifies the requirement of law for the purpose of taking judicial notice thereof, and this Court takes judicial notice of the inferences, observations and findings arrived at by the Division Bench and the directions issued in its judgment dated 13.03.2007 to the extent of the subsequent conduct of the Accused, deplorable functioning of the Public Prosecutor, Police Administration and the Presiding Officer of the Trial Court to extend undesirable favour to the Accused.
Whether the previous or subsequent conduct of the Accused, established on record, can be treated as a circumstance against the Accused in view of Section 8 of the Evidence Act? - HELD THAT:- The obvious question pops up in the mind of any prudent person, as to why he was instrumental, when he was not guilty of the offence to which he was being tried. The obvious answer to this would reasonably come to mind of any prudent person that his guilty mind was fearful about the result. All these aspects leave no room for doubt that the subsequent conduct of Respondent No. 2 is one of the major circumstances pointing towards his guilt for the incident that occurred at 9AM on 25.3.1995.
Whether the FIR or Bayan Tahriri can be said to be proved as a piece of reliable prosecution evidence and if so, what would be the position of law on the issue of treating the FIR or Bayan Tahriri as the Dying Declaration? - HELD THAT:- Considering the failure of State machinery and failure of the Trial Court to ensure a fair trial from the perspective of the victim side, the aspect of non-marking of the FIR and Bayan Tahriri as an exhibit, non-production of the formal witnesses, i.e., the Constable Clerk and Investigating Officer to prove the lodging of FIR/Bayan Tahriri and the flimsy rejection of application filed by Kishori Rai seeking his examination as a witness along with the examination of Nagendra Singh and Sanjeev Kumar Singh (who had signed said written statement/Bayan Tahriri as attesting persons) as witnesses in the Trial proceeding do not vitiate the genuineness of the FIR and Bayan Tahriri, and we refuse to give any discount to the Accused persons for non-exhibition thereof - In the present case, the FIR, being a public document and a dying declaration of the informant, is the foundation of the entire prosecution case. However, in the present matter, we have to find out the 'evidence of those persons who can vouchsafe for the truth of the facts in issue'.
Whether the testimony of a Prosecution Witness (an old feeble, rustic, illiterate lady and mother of the deceased and an eye-witness of the incident), who stated in the end of her cross-examination that "her son (another alive son) had asked her to take the name of Accused before the Court," can be treated to be a reliable evidence against such Accused, especially in view of the checkered and abnormal history of the case? - HELD THAT:- This Court finds that the testimony of CW-1, Lalmuni Devi (mother of deceased Rajendra Rai), corroborates the same and makes it reliable. The narration about the incident's time, place and manner, the specific role attributed to the Accused persons, etc, as described by Lalmuni Devi (CW-1), conforms with the contents of the FIR/Bayan Tahriri - This Court is conscious of the fact that a path different from the normal is being adopted to determine the guilt of the Accused.
The Trial Court and the High Court miserably failed to notice the sensitivity and intricacies of the case. Both the Courts completely shut their eyes to the manner of the investigation, the Prosecutor's role, and the high- handedness of the Accused as also the conduct of the Presiding Officer of the Trial Court, despite observations and findings having been recorded not only by the Administrative Judge but also by the Division Bench deciding Habeas Corpus petition. They continued with their classical rut of dealing with the evidence in a manner as if it was a normal trial. They failed to notice the conduct of the Public Prosecutor in not even examining the formal witnesses and also that the Public Prosecutor was acting to the advantage of the Accused rather than prosecuting the Accused with due diligence and honesty - Both the courts below ignored the administrative reports as also the judgment of the High Court in the Habeas Corpus petition. In fact they should have taken judicial notice of the same. They completely failed to take into consideration the conduct of the Accused subsequent to the incident, which was extremely relevant and material in view of Section 8 of the Evidence Act. They failed to draw any adverse inference against the Accused with respect to their guilt.
In the present case, unfortunately the Trial Court as well as the High Court failed to exercise their powers under the aforesaid provisions to summon the witnesses of the charge-sheet to prove the police papers. Despite applications being filed to summon persons who were not shown as witnesses to the charge-sheet, the Trial Court repeatedly rejected the said applications in 2006 and again in 2008 on the flimsy grounds that were not named in the charge-sheet or that the Public Prosecutor had not filed such application in gross violation of Section 311 Code of Criminal Procedure.
Accused-Respondent No. 2 is thus convicted Under Sections 302 and 307 Indian Penal Code for the murders of Daroga Rai and Rajendra Rai and also for attempt to murder of injured Smt. Devi - The Secretary, Department of Home, State of Bihar and the Director General of Police, Bihar are directed to ensure that Prabhunath Singh (Respondent No. 2) is taken into custody forthwith and produced before this Court to be heard on the question of sentence in view of Section 235 Code of Criminal Procedure.
Let the matter be listed again on 1st September, 2023. On the said date, Accused Prabhunath Singh (Respondent No. 2) be produced before this Court in custody for the aforesaid purpose.
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2023 (8) TMI 1386
Criminal breach of trust - deficiency of currency notes in the currency chest - HELD THAT:- In order to prove the offence under Section 409 of the IPC, the prosecution is undoubted to prove that the accused, public servant or a banker or agent was entrusted with the property which he is duly bound to account for and that he committed criminal breach of trust - The finding in the departmental proceeding indicates that the petitioner was not entrusted the property. Thus, the basic ingredients of offence punishable under Section 409 of the IPC is lacking. In addition thereof, there is ten years of yawning and unexplained gap for registration of the FIR.
No doubt, while exercising the powers under Section 482 of the Cr.PC the complaint / FIR has to be read as a whole. However, if reading of the FIR as a whole does not constitute the elements of alleged offence, the Court owes the duty to scuttle such vexatious proceedings.
FIR being I CR No. 80 of 2016 registered with Dehgam Police Station for the offences punishable under Sections 409 and 114 of the IPC and the further proceedings arising out thereof are quashed and set aside - Petition allowed.
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2023 (8) TMI 1382
Dishonour of Cheque - when the statement of accused under Section 313 of Cr.P.C. is required to be recorded - HELD THAT:- On plain reading of the proviso to Section 313(1)(a) and (b) of Cr.P.C., it would be manifestly clear that the statement of accused under Section 313 of Cr.P.C. has to be recorded after the witnesses for prosecution have been examined and before he is called on for his defence in every enquiry or trial. The object and purpose behind it is to enable the accused personally to explain any circumstances appearing in the evidence against him. The non-compliance of this mandate of law is not a mere irregularity as observed and held by the First Appellate Court in terms of Section 465 of Cr.P.C.
In view of the principles enunciated in the aforementioned judgments of Hon'ble Apex Court in INDIAN BANK ASSOCIATION AND OTHERS VERSUS UNION OF INDIA AND OTHERS [2014 (5) TMI 750 - SUPREME COURT], recording of statement under Section 313 of Cr.P.C. on the day of appearance of accused is a serious irregularity which renders the entire proceedings from the stage of recording accused's plea vitiated.
The procedure adopted by Trial Court recording statement of accused under Section 313 Cr.P.C. on the day of appearance much before the conclusion of complainant side cannot be legally sustained in view of clear mandate of law in terms of Section 313(1)(b) of Cr.P.C. The Courts below have recorded contrary finding regarding the procedure adopted by Trial Court for trial of summons case and in recording statement under Section 313 of Cr.P.C. Therefore, interference of this Court is required.
The Criminal Revision petition filed by the revision petitioner is hereby allowed.
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2023 (8) TMI 1365
Recovery of dues - priority of dues of secured creditors - seeking deletion of attachment orders - HELD THAT:- On perusal of the material records of the case more specifically the encumbrance certificate it is clear that there is a mortgage executed in favour of the fifth respondent bank. Therefore, the fifth respondent being the secured creditor under the SARFAESI Act and the security interest being duly registered, by virtue of Section 26E of SARFAESI Act, 2002, it is only the claim of the fifth respondent bank which has priority.
On account of the amendment to the SARFAESI Act, 2002, the attachment of the commissioner of CGST and Central Excise as well as the attachment under the arbitration award will stand valid if only any money which is left over after the satisfaction of the entire loan due to the fifth respondent bank.
Therefore, once the fifth respondent bank exercises its power of selling the property through the Authorized Officer, the attachments made by the other respondents were rendered otiose. Thereafter, the only right of the sixth and seventh respondents was to claim their dues if any surplus money is left with the Authorized Officer under the SARFAESI Act.
This position is no longer res integra and is recently reiterated by the Hon’ble Supreme Court of India in Kotak Mahindra Bank Ltd vs. Girnar Corrugators Private Limited and Others [2023 (1) TMI 244 - SUPREME COURT] where it was held that Therefore, in absence of any specific provision for priority of the dues under the MSMED Act, if the submission on behalf of Respondent 1 for the dues under the MSMED Act would prevail over the SARFAESI Act, then in that case, not only the object and purpose of special enactment/the SARFAESI Act would be frustrated, even the later enactment by way of insertion of Section 26-E of the SARFAESI Act would be frustrated.
In this case admittedly there is no money which is left over after satisfying the loan amount of the fifth respondent bank and thus the attachments made by the sixth and seventh respondents have become completely nugatory and otiose and such are liable to be deleted as otherwise the same would create unnecessary cloud over the title of the petitioner - The writ petitioner shall once again present the sale certificate dated 22.11.2022 before the first respondent for registration within a period of two weeks from the date of receipt of a copy of this order. Upon such production, the first respondent shall register the same in accordance with law more specifically without reference to any of the attachment orders or encumbrances that may reflect in the records.
Petition allowed.
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2023 (8) TMI 1363
Dacoity - Legality of SCN - whether the FIR registered for the offences enumerated discloses commission of any offence? - HELD THAT:- Even if the entire case of the prosecution is believed or accepted to be true, none of the ingredients to constitute the offence of dacoity punishable under Section 395 of the IPC is made out. What amounts to dacoity has been explained by us in detail in the judgment and order delivered by this very Bench in Criminal Appeal MOHAMMAD WAJID AND ORS. VERSUS STATE OF U.P. AND ORS. [2023 (8) TMI 1361 - SUPREME COURT] - In the same manner, none of the ingredients to constitute the offence punishable under Section 365, 342 and 506 resply of the IPC are disclosed on plain reading of the FIR. The FIR is nothing but abuse of the process of law.
Whenever an accused comes before the Court invoking either the inherent powers under Section 482 of the Code of Criminal Procedure (CrPC) or extraordinary jurisdiction under Article 226 of the Constitution to get the FIR or the criminal proceedings quashed essentially on the ground that such proceedings are manifestly frivolous or vexatious or instituted with the ulterior motive for wreaking vengeance, then in such circumstances the Court owes a duty to look into the FIR with care and a little more closely.
The Court while exercising its jurisdiction under Section 482 of the CrPC or Article 226 of the Constitution need not restrict itself only to the stage of a case but is empowered to take into account the overall circumstances leading to the initiation/registration of the case as well as the materials collected in the course of investigation. Take for instance the case on hand. Multiple FIRs have been registered over a period of time. It is in the background of such circumstances the registration of multiple FIRs assumes importance, thereby attracting the issue of wreaking vengeance out of private or personal grudge as alleged.
In STATE OF ANDHRA PRADESH VERSUS GOLCONDA LINGA SWAMY AND ORS. [2004 (7) TMI 696 - SUPREME COURT], a two-Judge Bench of this Court elaborated on the types of materials the High Court can assess to quash an FIR. The Court drew a fine distinction between consideration of materials that were tendered as evidence and appreciation of such evidence. Only such material that manifestly fails to prove the accusation in the FIR can be considered for quashing an FIR.
The impugned order passed by the High Court of Judicature at Allahabad is hereby set aside - Appeal allowed.
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2023 (8) TMI 1361
Interference with lawful possession and ownership of the land in question - offence of dacoity punishable Under Section 395 of the Indian Penal Code - even if the entire case of the prosecution is believed to be true, whether the ingredients to constitute the offence of dacoity punishable Under Section 395 of the Indian Penal Code are disclosed? - criminal intimidation punishable Under Sections 504 and 506(2) of the Indian Penal Code - FIR was lodged in the year 2022 for the alleged offence of the year 2021 and more particularly, without furnishing any details as regards the date and time of the alleged incident - case on hand falls within any one of the parameters laid down by this Court in the case of STATE OF HARYANA VERSUS BHAJAN LAL [1990 (11) TMI 386 - SUPREME COURT], for the purposes of quashing the criminal case or not?
HELD THAT:- Section 504 of the Indian Penal Code contemplates intentionally insulting a person and thereby provoking such person insulted to breach the peace or intentionally insulting a person knowing it to be likely that the person insulted may be provoked so as to cause a breach of the public peace or to commit any other offence. Mere abuse may not come within the purview of the section. But, the words of abuse in a particular case might amount to an intentional insult provoking the person insulted to commit a breach of the public peace or to commit any other offence - In judging whether particular abusive language is attracted by Section 504, Indian Penal Code, the court has to find out what, in the ordinary circumstances, would be the effect of the abusive language used and not what the complainant actually did as a result of his peculiar idiosyncrasy or cool temperament or sense of discipline. It is the ordinary general nature of the abusive language that is the test for considering whether the abusive language is an intentional insult likely to provoke the person insulted to commit a breach of the peace and not the particular conduct or temperament of the complainant.
Mere abuse, discourtesy, rudeness or insolence, may not amount to an intentional insult within the meaning of Section 504, Indian Penal Code if it does not have the necessary element of being likely to incite the person insulted to commit a breach of the peace of an offence and the other element of the Accused intending to provoke the person insulted to commit a breach of the peace or knowing that the person insulted is likely to commit a breach of the peace - A bare perusal of Section 506 of the Indian Penal Code makes it clear that a part of it relates to criminal intimidation. Before an offence of criminal intimidation is made out, it must be established that the Accused had an intention to cause alarm to the complainant.
Considering the nature of the allegations levelled in the FIR, a prima facie case to constitute the offence punishable Under Section 506 of the Indian Penal Code may probably could be said to have been disclosed but not Under Section 504 of the Indian Penal Code. The allegations with respect to the offence punishable Under Section 504 of the Indian Penal Code can also be looked at from a different perspective. In the FIR, all that the first informant has stated is that abusive language was used by the Accused persons - The Court while exercising its jurisdiction Under Section 482 of the Code of Criminal Procedure or Article 226 of the Constitution need not restrict itself only to the stage of a case but is empowered to take into account the overall circumstances leading to the initiation/registration of the case as well as the materials collected in the course of investigation.
The requirement and need to balance the law enforcement power and protection of citizens from injustice and harassment must be maintained. It goes without saying that the State owes a duty to ensure that no crime goes unpunished but at the same time it also owes a duty to ensure that none of its subjects are unnecessarily harassed.
The continuation of the criminal case arising from the FIR No. 224 of 2022 registered at Mirzapur Police Station, Saharanpur will be nothing but abuse of the process of the law. In the peculiar facts and circumstances of this case, we are inclined to accept the case put up on behalf of the Appellants herein - the impugned order passed by the High Court of Judicature at Allahabad is hereby set aside - appeal allowed.
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2023 (8) TMI 1359
Seeking quashing of Criminal proceedings - FIR lodged after a period of 14 years from the alleged illegal acts of the appellants - Illegal mining - exploiting poor persons - invocation of inherent powers under Section 482 of the Code of Criminal Procedure (CrPC) or extraordinary jurisdiction under Article 226 of the Constitution - HELD THAT:- Even if the entire case of the prosecution is believed or accepted to be true, none of the ingredients to constitute the offence as alleged are disclosed. It is pertinent to note that the FIR in question came to be lodged after a period of 14 years from the alleged illegal acts of the appellants. It is also pertinent to note that in the FIR no specific date or time of the alleged offences has been disclosed.
Whenever an accused comes before the Court invoking either the inherent powers under Section 482 of the Code of Criminal Procedure (CrPC) or extraordinary jurisdiction under Article 226 of the Constitution to get the FIR or the criminal proceedings quashed essentially on the ground that such proceedings are manifestly frivolous or vexatious or instituted with the ulterior motive for wreaking vengeance, then in such circumstances the Court owes a duty to look into the FIR with care and a little more closely - The Court while exercising its jurisdiction under Section 482 of the CrPC or Article 226 of the Constitution need not restrict itself only to the stage of a case but is empowered to take into account the overall circumstances leading to the initiation/registration of the case as well as the materials collected in the course of investigation.
The impugned order passed by the High Court of Judicature at Allahabad is hereby set aside - Appeal allowed.
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2023 (8) TMI 1311
Dishonour of Cheque - vicarious liability of Director - resignation on the date of issuance of cheques in dispute - cause of action arisen for filing impugned complaints - Sections 138 and 141 of NI Act - HELD THAT:- In the case at hand, considering the proximity of time in alleged resignation of the petitioner and issuance of cheque in question and its dishonour, absence of other details and material such as appointment of any new director in place of present petitioner, any board resolution to strengthen the case of petitioner and in view of other reasons mentioned in preceding paragraphs, this Court, at this stage, cannot come to a conclusion, with utmost certainty, as to when had the petitioner actually resigned from the office of Director of accused company and as to whether or not he was involved in dishonouring of the cheques in question, amounting to Rs. 11.75 crores, especially when there are specific averments to the effect that he was involved in the process of obtaining loans from the complainant and issuing the cheques in question.
The material placed on record by the petitioner is not sterling incontrovertible material or unimpeachable material to show that petitioner was not involved either in day-to-day activities of the company or had no role in issuance of cheque in question or its dishonouring.
Petition dismissed.
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2023 (8) TMI 1288
Dishonour of Cheque - acquittal of accused - blank signed cheques - rebuttal of presumptions - Loan advanced or not - evidences not appreciated in correct manner - several contradictions in the case set out by the complainant in the legal notice.
Black signed cheques - HELD THAT:- This Court notes that it was rightly held by both the Courts below, after taking note of judicial precedents, that the law did not require the entire cheque to be filled by the drawer only and if the signatures were admitted, the person signing the cheque would be liable to the holder for the amount as mentioned in the cheque, in due course.
The contention raised on behalf of petitioner that since the complainant had filled the details on the blank signed cheque handed over to her by the petitioner, the same would lead to an inference that there was no legally recoverable debt, is without any merit.
As revealed from records including cross-examination of the petitioner, the petitioner thereafter had not asked the complainant to return his blank signed cheques nor he had lodged any complaint in this regard with the police or any other department. It is also a matter of record that the complainant had presented the cheques for encashment not only once but twice, however, the petitioner had even then neither approached or contacted the complainant, nor he had given any reply to the legal notice sent by her despite having received the same - the defence raised by the petitioner that the cheques were not issued toward a legally enforceable debt did not hold any ground.
As far as the other contention that income tax officer had informed the Court that income tax returns of the complainant for several years in between were not available with them is concerned, it is to be noted that the officer concerned had informed the Court that the department was not able to procure the required documents despite best efforts as the voluminous records had got mixed up due to shifting of their offices. Further, as regards the argument that the complainant was not financially strong so as to have advanced any loan to the petitioner, the complainant had stated that for the grant of first loan to the petitioner, she had obtained a loan of Rs. 6.35 lakhs from her mother-in-law and taken rest amount from the chest reserves of home and for the second loan, she had sold her jewellery. These averments of the complainant were also corroborated from her income tax returns and other material produced by the complainant.
This Court is also of the view that the defence raised by the petitioner was not sufficient to rebut the presumption raised against him under Section 118(a) and 139 of NI Act, and where the issuance of cheques and signatures on the same were not disputed and when the complainant was sufficiently able to establish the factum of having advanced loans to the petitioner as well as their sources, this Court find no infirmity with the judgment passed by the learned ASJ vide which the conviction of the petitioner under Section 138 of NI Act as recorded by the learned MM was affirmed.
Petition dismissed.
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2023 (8) TMI 1287
Dishonour of Cheque - Quantum of sentence / Fine - whether on the basis of the documents produced by the accused, can it be said that the complainant was carrying a money lending business and without license? - HELD THAT:- The accused tried to take defence about re-payment, however, he could not substantiate it. There is due compliance about issuance and service of notice. So finding of the trial Court requires to be set aside. The complainant has proved the ingredients for offence under Section 138 of Negotiable Instruments Act. The accused needs to be dealt with as per law. Mr. Sawant submitted that instead of remanding the matter this Court can decide this matter. He submitted that there is a punishment in the form of imprisonment and fine being twice amount of the cheque.
The sentence is optional, either it may be imprisonment for two years or fine which may be twice amount of the cheque or both - it is not felt proper to impose sentence of imprisonment but the complaint is pending since 2011 - the respondent can be imposed with the fine being twice the amount of the cheque. There is a request for leniency from imposing twice the amount of the cheque. It can’t be accepted when this Court is not imposing the sentence of imprisonment.
Appeal allowed.
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2023 (8) TMI 1228
Dishonour of Cheque - insufficiency of funds - whether the order passed by the High Court quashing the summoning order and the proceedings against the respondent no.1 was justified? - HELD THAT:- It is not in dispute that the premises owned by the appellants was taken on rent by the respondent no.3 firm. Though Partnership Deed has not been placed on record before this Court, however, from para 42 of the impugned order of the High Court it is evident that the partnership firm consisted of three partners, namely, Mark Alexander Davidson and Sachhidanand Kanchan and the third one was not impleaded in any complaints as accused. To discharge the liability towards the payment of rent, various cheques were issued to the appellants. The cheques, when presented to the Bank, were dishonoured on account of insufficiency of funds.
The High Court had accepted the argument raised by the respondent no.1 and quashed the summoning order as well as the complaints against him, accepting the plea that he had retired from the partnership firm for which a Retirement Deed was already executed on 01.04.2018 - The fact remains that, a public notice regarding retirement by the respondent no.1 from the firm was issued on 09.02.2022 i.e., much after the complaints had been filed and the summoning order had been issued by the trial Court on 05.02.2020. Even the quashing petitions were filed by the respondent no.1 in October 2021. The public notice was issued few days before the High Court decided the quashing petition on 14.03.2022. It is not the case set up by the respondent no.1 that in the Partnership Deed it is mentioned that he was a sleeping partner in the firm.
It is well settled that the final judgment of the trial Court will depend on the evidence adduced before it. As there are specific allegations against the respondent no.1 in the complaint and he was admittedly a partner in the partnership firm when the rent deed was executed, he is liable to face prosecution. Powers under Section 482 of the Code can be exercised by the High Court in case when it comes across unimpeachable and incontrovertible evidence to indicate that the partner of the firm did not have any concern with the issuance of cheques. The case in hand is not of that kind.
The impugned order passed by the High Court quashing the summoning order and the complaints against the respondent no.1 are set aside - Appeal allowed.
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2023 (8) TMI 1227
Scope of arbitral award - Rejection of claims set aside - legality of the order passed by the Division Bench of the High Court while exercising jurisdiction under Section 37 of the Act - HELD THAT:- The scope of jurisdiction under Section 34 and Section 37 of the Act is not akin to normal appellate jurisdiction. It is well-settled that courts ought not to interfere with the arbitral award in a casual and cavalier manner. The mere possibility of an alternative view on facts or interpretation of the contract does not entitle courts to reverse the findings of the Arbitral Tribunal.
In the present case, the Arbitral Tribunal interpreted the contractual clauses and rejected the Respondent’s claims pertaining to Disputes. The findings were affirmed by the Single Judge of the High Court in a challenge under Section 34 of the Act, who concluded that the interpretation of the Arbitral Tribunal was clearly a possible view, that was reasonable and fair-minded in approach.
The principle of interpretation of contracts adopted by the Division Bench of the High Court that when two constructions are possible, then courts must prefer the one which gives effect and voice to all clauses, does not have absolute application. The said interpretation is subject to the jurisdiction which a court is called upon to exercise. While exercising jurisdiction under Section 37 of the Act, the Court is concerned about the jurisdiction that the Section 34 Court exercised while considering the challenge to the Arbitral Award.
The Division Bench of the High Court committed an error in setting aside the concurrent findings of the Arbitral Tribunal and the Single Judge of the High Court. The Award of the Arbitral Tribunal and the decision of the Single Judge of the High Court under Section 34 of the Act cannot be termed as perverse or patently illegal as concluded by the Division Bench of the High Court. The decision of the Arbitral Tribunal is a plausible view, and the Single Judge refrained from interfering with it under Section 34 of the Act - the Division Bench should not have interfered with these orders.
Appeal allowed.
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2023 (8) TMI 1226
Award rendered by the Arbitrator in favor of the appellant set aside - rejection of its counterclaim - relevant date from which the escalation claim was calculable - HELD THAT:- The impugned judgment, on the face of the record, in this Court’s opinion, is plainly erroneous. It is far too well established that the scope of interference by a court in the context of a challenge to an arbitration award is narrow. In the case of an appeal by a party is aggrieved by rejection of its objections, the Appellate Court’s review power (especially to substitute its findings in the facts and the interpretation of contract and interpretation of law) are far narrower. This court has in line of authorities previously held that such jurisdiction should be invoked rarely and in cases where it is apparent that the Arbitrator had “misconducted” the proceedings in terms of Section 30 of the Arbitration Act.
In the present case, this court is persuaded to hold that the High Court in proceeding to interpret the terms of the contract and applying them to the fact situation in the present case substituted its findings hereby entering the zone which was not permitted to it – in regard to upsetting the award as far as it found in favor of the appellant – contractor and also in allowing the counterclaim of ONGC. For these reasons, the impugned order is hereby set aside.
Appeal allowed.
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2023 (8) TMI 1225
Dishonour of Cheque - failure to consider that no liability arose in order to attract the impugned proceeding under Section 138 of the Negotiable Instruments Act - HELD THAT:- In the present case, the cheque was issued towards the complainant’s professional fees and the petitioner has admitted paying a sum of only Rs. 10,000/-. - the petitioner has not been able to rebut the presumption under Section 139 as admittedly professional fees was due to the complainant for discharge of his professional duty. The cheque was issued towards that liability of professional fees.
Thus, considering the materials on record and in view of the discussions made, the judgment under revision being in accordance with law, needs no interference by this court - Revision application dismissed.
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2023 (8) TMI 1224
Dishonour of Cheque - prayer for compounding of offence - HELD THAT:- Having taken note of the fact that the entire amount of compensation, as awarded by the learned Trial Court, i.e., Rs.8,00,000/-, has been received by the complainant and he has no objection in compounding the offence, therefore, this Court sees no impediment in accepting the prayer made on behalf of the accusedpetitioner 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 in view of the non-obstante clause, the compounding of offences under the Negotiable Instruments Act, 1881 is controlled by Section 147 and the scheme contemplated by Section 320 of the Code of Criminal Procedure (hereinafter “CrPC”) will not be applicable in the strict sense since the latter is meant for the specified offences under the Indian Penal Code, 1860.
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 already paid the entire amount of compensation to the complainant, prayer for compounding the offence can be accepted in terms of the aforesaid judgments passed by the Hon’ble Apex Court - here, the parties are permitted to get the matter compounded in light of the compromise arrived inter se them.
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.5000/- only with the H.P. State Legal Services Authority, Shimla, H.P., within four weeks from today.
Petition disposed off.
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2023 (8) TMI 1223
Refusal ot register the document - Correctness of valuation made in a decree - Section 47(A) of the Registration Act - petition was resisted by the appellants contending that the decree relates to a property which belongs to the Government and therefore, the same cannot be registered in view of Section 22(A) of the Registration Act, 1908 - HELD THAT:- The decree granted by the Court which is sought to be registered is nothing but an agreement of sale subject to certain conditions. As provided under Section 54 of the Transfer of Property Act, such a decree does not create an interest in immovable property.
Very reading of Sub-Section 1 of Section 22-A of the Act, would reveal that what prohibited is the registration of an instrument relating to transfer of immovable properties by way of Sale, Gift, Mortgage, Exchange or Lease. Therefore, an agreement of sale which does not create interest in immovable property would not come within the ambit of Section 22-A - the submissions of the learned Senior Counsel cannot be agreed upon on this question.
Place of registration - HELD THAT:- The office of the third respondent within whose jurisdiction the Court had passed the decree is situate, will also be a proper office. Moreover, since the very decree is only an agreement of sale which does not affect immovable property, it will not come within the ambit of Section 28. Therefore, registration can be done either at the office of the Sub-Registrar in whose Sub-District, the original decree or order was made or at any other place as desired by the parties to that document - the objections of the learned Additional Advocate General also cannot be sustained on this issue also.
Pendency of the writ appeal - HELD THAT:- As rightly pointed out by the learned Senior Counsel for the first respondent, the writ appeal has been filed challenging a direction issued by the writ Court to grant patta to the petitioner in W.P(MD)No.12425 of 2008. The defendant in the suit along with others had in fact, made a claim over the property. Therefore, pendency of that writ appeal cannot be a ground to refuse registration.
The writ appeal fails and it is accordingly, dismissed.
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2023 (8) TMI 1127
Dishonour of Cheque - insufficiency of funds - validity of issuance of summon to stand trial for the offence under Section 138 of the Act, 1881 - non-application of mind - HELD THAT:- It transpires that the applicant is being tried for the offence under Section 138 of the Act, 1881. On 23.10.2019, due to absence of the applicant in the learned trial court concerned, process under Section 82 Cr.P.C. came to be issued. Admittedly, the present applicant is a woman, who is a senior citizen.
The issuance of non-bailable warrant and process under Section 82 Cr.P.C. simultaneously cannot be appreciated in view of law laid down by the Hon’ble Supreme Court in Inder Mohan Goswami’s case [2007 (10) TMI 550 - SUPREME COURT] and Raghuvansh Dewanchand Bhasin’s case [2011 (9) TMI 1224 - SUPREME COURT] as the same is patently illegal and, therefore, unsustainable.
In case, the applicant, who is a woman and is a senior citizen, moves an application seeking dispensation of her personal attendance before the learned trial court concerned, the learned trial court concerned is expected to dispose of the same by dispensing with personal attendance of the applicant subject to the fact that whenever the learned trial court concerned finds her physical appearance necessary, she may be directed to appear in person - This Court, on a careful perusal, finds that the applicant has not challenged the order whereby the applicant was summoned to stand trial for the offence under Section 138 of the Act, 1881.
In want of specific challenge to the summoning order, at this stage, this Court is not inclined to interfere with the same particularly having regard to the observations made - the present application under Section 482 Cr.P.C. is partly allowed.
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2023 (8) TMI 1040
Violation of principles of natural justice - Impounding of petitioner's passport - wrong information given by agent at the time of renewal application - case of petitioner is that the impounding was done without notice to the petitioner - HELD THAT:- The petitioner was employed as labourer in foreign countries. He was working in Singapore and later in Middle East. The action taken by the respondent cannot be faulted. If false particulars and false documents are given, the Passport Authority has no option but to impound the passport - The petitioner has no where challenged the basic premises on which the impugned action is resting. Therefore, the question of granting declaration as sought for does not arise.
At the same time, this Court cannot lose sight of the human angle. It is a fact that the citizens take the services of middle men and agents to transact with the authorities. In this case, the agent employed by the petitioner had indulged in fraud. In order to quicken the process of obtaining passport, he has given false particulars. During verification, the same came to light - However, for almost nine years, the petitioner has been without any passport. Obviously his life and career has been affected. Even if the petitioner had committed a mistake, he cannot be condemned for ever. The biblical concept of eternal damnation goes ill with the reformatory trend in modern jurisprudence.
The petitioner is permitted to submit a fresh application before the respondent - petition allowed.
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2023 (8) TMI 1007
Enhancement of minor penalty - seeking direction to respondents to issue No Objection Certificate to enable him to join as Professor (Energy Engineering) in North Eastern Hill Central University, Shillong - HELD THAT:- From the perusal of reply as well as arguments of learned counsel for the respondents, it is evident that there is no provision which empowers Appellate Authority to enhance quantum of penalty imposed by original authority. In the case in hand, appellate order dated 16.12.2022 has been passed by Joint Secretary to Government of India and it has been passed in terms of Central Civil Services (Classification Control & Appeal) Rules 1965. Neither reply nor arguments of learned counsel for the respondents are disclosing power of Appellate Authority to enhance penalty, thus, penalty has been enhanced without jurisdiction. It is settled proposition of law that Appellate Authority can enhance penalty if there is specific provision and in the absence of provision, Appellate Authority cannot enhance penalty.
A Division Bench of this Court in M/S NIRVAIR SINGH VERSUS FINANCIAL COMMISSIONER TAXATION [2017 (3) TMI 1423 - PUNJAB & HARYANA HIGH COURT] has adverted with this issue and has held that Appellate Authority cannot enhance penalty in the absence of specific power.
From Clause VII of paragraph 2 of Office Memorandum dated 28.09.2022, it is evident that it is applicable for Vigilance Clearance whereas petitioner is not seeking Vigilance Clearance. The petitioner is not asking for certificate without disclosing factum of penalty whereas petitioner is seeking ‘No Objection Certificate’ to join another department. The case of the petitioner is not covered by aforesaid clause, thus, reliance placed by respondent is misplaced.
The respondent is hereby directed to issue ‘No Objection Certificate’ within one week from today - petition disposed off.
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2023 (8) TMI 985
Modification of Arbitral Award - reduction in the rate of interest - whether the High Court erred in modifying the arbitral award to the extent of reducing the interest, from compound interest of 18% to 9% simple interest per annum? - HELD THAT:- Section 31(7)(b) of the 1996 Act, was amended by Act 3 of 2016, w.e.f. 23.10.2015. The pre-amended provision, empowers the arbitrator to award both pre-award and post-award interest, and specifies that the awarded sum would carry an interest of 18% per annum, unless provided otherwise, from the date of award till the date of payment.
In the present case, given that the arbitration commenced in 1997, i.e., after the Act of 1996 came into force on 22.08.1996, the arbitrator, and the award passed by them, would be subject to this statute. Under the enactment, i.e. Section 31(7), the statutory rate of interest itself is contemplated at 18% per annum. Of course, this is in the event the award does not contain any direction towards the rate of interest. Therefore, there is little to no reason, for the High Court to have interfered with the arbitrator’s finding on interest accrued and payable. Unlike in the case of the old Act, the court is powerless to modify the award and can only set aside partially, or wholly, an award on a finding that the conditions spelt out under Section 34 of the 1996 Act have been established.
The limited and extremely circumscribed jurisdiction of the court under Section 34 of the Act, permits the court to interfere with an award, sans the grounds of patent illegality, i.e., that “illegality must go to the root of the matter and cannot be of a trivial nature”; and that the tribunal “must decide in accordance with the terms of the contract, but if an arbitrator construes a term of the contract in a reasonable manner, it will not mean that the award can be set aside on this ground”.
The impugned judgment warrants interference and is hereby set aside to the extent of modification of rate of interest for past, pendente lite and future interest. The 18% per annum rate of interest, as awarded by the arbitrator on 21.01.1999 (in Claim No. 9) is reinstated. The respondent-state is hereby directed to accordingly pay the dues within 8 weeks from the date of this judgment.
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