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Indian Laws - Case Laws
Showing 321 to 340 of 748 Records
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2023 (8) TMI 983
Disciplinary Proceedings against Chartered Accountant (CA) - Irregularities in Securities and Banking Transactions (the JPC) SEBI Inspection Report on Canbank Mutual Fund (CBMF) and Annual Reports of various schemes of CBMF for the year 1991-92 - removal of Respondents from the register of members for a period of six months - HELD THAT:- Considering the nature of the charges, the three charges only relate to non-reporting in the annual reports of CBMF. Respondent is not accused of indulging in violative transactions or Respondent was responsible or liable for the alleged losses of CBMF or Respondent indulged in direct or indirect lending or underwriting etc. Nothing has been brought to our notice that Respondent had committed any similar offence earlier or later, in view of the fact that the matter relates to Financial Year 1991-1992. Almost 21 years have passed since the report was received from the Disciplinary Committee. The information relates to Financial Year 1991-92 and the Institute received it in 1995.
The fact that the pendency of this Reference itself would have been like the proverbial Damocles sword hanging over the head of Respondent for about 30 years and in view of the fact that Mr. Mehta has given an undertaking on instructions as recorded, there is no need to take any further action against Mr. Salivati.
It is directed that the proceedings be filed by the Institute - Reference disposed.
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2023 (8) TMI 892
RTI - Seeking various information regarding third parties (Petitioner) from excise department - who has claimed the benefit of exemption - Seeking list of manufacturers or suppliers of the equipments/machineries of plants before the Central Excise Department - Right to Information Act, 2005 - HELD THAT:- This Court is of the opinion that there is no infirmity in the order passed by the First Appellate Authority dated 15.11.2011 in directing the information in respect to the information so sought for in the application dated 01.09.2011 from Clauses 1 (a) to 1 (x) except Clause 1(g).
Now coming to the information as regards Clause 1 (g) of the Application, this Court enquired with the learned counsel for the petitioners as to whether the petitioners claimed confidentiality while furnishing the list of manufacturers or suppliers of the equipments/machineries of plants before the Central Excise Department. The learned counsel for the petitioner submitted that he has no instructions in that regard. It is also relevant to take note of that there is no pleading to the effect that confidentiality was claimed at the time of furnishing the information pertaining to the list of manufacturers/suppliers of the equipments/machineries of the plants before the Central Excise Department. Taking into account, it is the further opinion of this Court that the information sought for under Clause 1 (g) of the application dated 01.09.2011 would not come within the ambit of Section 11 of the Right to Information Act, 2005.
This Court further finds it relevant to take note of another submission of the learned counsel for the petitioners which pertains to Section 19 (4) of the RTI Act in as much as it is the submission of the learned counsel for the petitioners that the reasonable opportunity had to be given to the third party when an appeal is preferred relating to the information of third party. The said submission though at the first blush looks attractive but the same is misconceived taking into account that the petitioners herein did not claim confidentiality to come within the ambit of Section 11 of RTI Act.
This Court does not find any merit in the instant writ petition for which the instant writ petition stands dismissed.
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2023 (8) TMI 842
Dishonour of Cheque - delay of 34 days in filing the revision petition - sufficient cause for delay or not - presumption under Section 138 of the NI Act - HELD THAT:- As far as the question of limitation is concerned, it is settled law that rules of limitation are not meant to destroy the rights of the parties, rather the idea is that every legal remedy must be kept alive for a legislatively fixed period of time.
In Apangshu Mohan Lodh & Ors. Vs. State of Tripura & Ors., [2003 (10) TMI 641 - SUPREME COURT], the Apex Court held that the power of condonation of delay is discretionary and is to be liberally construed.
No doubt, delay is fatal to the case of any party but as far as possible the matter should be heard and decided on merits. In the instant case, there is a delay of 34 days, which should be condoned in order to decide the present case on merits - Secondly, it has been held by the learned Sessions Court that the defences raised by the petitioner that the respondent had never advanced any friendly loan and he did not have any financial capacity to lend any such huge amount of loan and that advancing of friendly loan is not accounted in the business of account and income tax returns are such defences which can only be decided once the parties lead their respective evidence before the trial court.
In the instant case, the issuance of cheque is not denied by the petitioner and there is a presumption under Section 138 of the NI Act that the Court shall presume that the holder of a cheque received the cheque of the nature referred into Section 138 of the NI Act, for the discharge, in whole or in part or any debt or other liability.
As far as the question of limitation is concerned, that part of the impugned order is set aside and delay in filing the revision petition is condoned. With these observations, the present petition is dismissed.
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2023 (8) TMI 841
Dishonour of Cheque - acquittal of the accused 1 and 2 for the offence punishable under section 138 of the N.I Act - HELD THAT:- The scope of interference in an appeal against Acquittal has been gone into by the Hon'ble Supreme Court in JASWANT SINGH VERSUS STATE OF HARYANA [2000 (4) TMI 825 - SUPREME COURT] wherein it was observed While sitting in Judgment over an acquittal, the appellate Court is first required to seek an answer to the question whether the findings of the trial court are palpably wrong, manifestly erroneous or demonstrably unsustainable. If the appellate Court answers the above question in the negative, the order of Acquittal is not to be disturbed.
In light of well-settled legal principles, the burden lies on the accused to prove the non-existence of consideration by bringing on record such facts and circumstances, which would lead the Court to believe the non-existence of the consideration. If the accused discharges the onus of proof showing that the existence of consideration was improbable or doubtful and the execution of the promissory note, the onus would be shifted to the complainant. Then he will be obliged to prove the existence of the consideration.
The available evidence clearly indicates that the accused had no compelling need to borrow the specified amount, considering that they possessed Rs. 7,00,000/- in their bank account at the time of the Exs. P1 and P2 promissory note transactions. The complainant has not provided a satisfactory explanation or demonstrated the source of her income that would enable her to lend such a substantial sum to the accused. The accused have presented substantial evidence before the Court, and based on this, the complainant's assertion that they issued a cheque on 03.02.2013 is proven to be inaccurate. The evidence adduced supports the view that the accused's version is more likely and credible in this context - It is a cardinal principle of criminal jurisprudence that in an acquittal appeal, if another view is possible, then also the appellate Court cannot substitute its view by reversing the Acquittal into conviction unless the findings of the trial Court are perverse, contrary to the material on record, palpably wrong, manifestly erroneous or demonstrably unsustainable.
In the instant case, the appellant has yet to be able to point out how the findings recorded by the learned Additional Sessions Judge are perverse, contrary to material on record, palpably wrong, manifestly erroneous or demonstrably unsustainable.
The trial Court's conclusion was found to be erroneous, and the appellate Court’s Judgment aligns with the settled legal position. The point is accordingly answered in favour of the accused and against the complainant.
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2023 (8) TMI 785
Dishonour of Cheque - legally enforceable debt at the time of encashment or not - applicability of section 138 of Negotiable Instrument Act - HELD THAT:- It appears that the Learned Magistrate has conducted the proceeding acording to the provisions of law and during the course of examination of the accused/ petitioner u/s 313 Cr.P.C. Petitioner stated some of the amount of the cheques has already been paid to the opposite parties and he possessed those receipts. It appears from the LCR that the present petitioner intends to adduce evidences for defence accordingly the date was posted for DWs thereafter the, petitioner was not turned up thus, finding no other alternative Learned Magistrate has closed the DWs. Thereafter the date was fixed for the argument and the petitioner/accused took part of the proceeding and the Learned Advocate for the petitioner argued the matter at length. So it proves that the petitioner was allowed to adduce DWs but he has not availed the same.
In the present case the petitioner cannot be awarded to suffer simple Imprisonment for more than 06 months in default of payment of compensation. Consequently the portion of the order of the sentence passed by the Learned Magistrate affirmed by the Learned Additional Sessions Judge is appeared to me improper and illegal.
The present petitioner is aged about 80 years; he has already suffered simple imprisonment during the pendency of the instant revision. Some amount has already been deposited by the direction of this court before the Learned Magistrate. Considering the entire facts and circumstances and considering the observation made above the impugned order of default of payment by the petitioner/accused to suffer simple imprisonment for nonpayment of the compensation amount within stipulated period is set aside.
Application disposed off.
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2023 (8) TMI 784
Disciplinary proceedings against the Chartered Accountant (CA) - Engagement in Business activities without approval from ICAI - Allegation of evasion of Sales Tax - opening an account in the bank in the name of fictitious firm and used the bank account for making the payment of transaction entered into between the fictitious firm and another company - HELD THAT:- The entire basis is that the bank account opening forms were signed by respondent in respect of the concerns and based on the deposition made by the witnesses, the Committee was of the opinion that respondent was actively involved in business activities without obtaining prior permission of the Council. The Magistrate Court has acquitted respondent on the basis that there is no evidence that respondent had even opened those bank accounts.
It is required to note that the acquittal is not on the basis of benefit of doubt being given to respondent but it is a clear case of acquittal on the basis that there is no evidence against respondent that he had opened these bank accounts or did what he was accused of.
The Council was not correct in not accepting the acquittal by the Court of Metropolitan Magistrate, 25th Court, Mazgaon - Reference dismissed.
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2023 (8) TMI 737
Dishonour of Cheque - Framing of charges - legally recoverable debt or liability was in existence for issuance of the cheques, or not - invocation of inherent jurisdiction under Section 482 of CrPC - HELD THAT:- It is mentioned that in furtherance of business and for business need of the accused, complainant had advanced him money from time to time. When complainant demanded settlement of account, the accused has issued the cheuqes in question. Therefore, the complaint prima facie reflects allegations with regard to existence of legally recoverable debt or liability. The averment in the complaint would be supported by legal presumption under Section 138 and 139 of Negotiable Instruments Act at trial. The documents with regard to dissolution of partnership and the statement contained therein, may be probable defence of the accused which cannot be gone into at the preliminary stage of proceeding i.e., cognizance and framing of charge.
From the complaint and the statement of complainant, no inference of absolute lack of legally recoverable debt or liability can be drawn. It cannot be said that the allegations as reflected in the complaint, if taken at their face value and accepted in their entirety, would not be sufficient to constitute an offence punishable under Section 138 of Negotiable Instruments Act.
Also, the case under consideration does not fall within the ambit of principles laid down in case of Amit Kapoor [2014 (1) TMI 1042 - SUPREME COURT] for invoking inherent jurisdiction under Section 482 of CrPC. This Court is of the considered opinion that no case is made out for quashment of proceedings.
Petition dismissed.
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2023 (8) TMI 695
Dishonour of Cheque - existence of legally enforceable debt or not - acquittal of accused u/s 138 of NI Act - rebuttal of statutory presumption u/s 139 of NI Act - HELD THAT:- An examination of fact situation in the instant case reveals that Rupesh Jain, PW-1 has stated that the accused has requested for loan of Rs.20,00,000/- for her personal need, but in cross-examination he could not specify on what date, month or year, he had advanced loan of such a big amount to accused Chanda Bansal. Although he had financial transactions with the husband and son of accused, but there was no transaction between him and the accused.
In the opinion of this Court, learned trial Court has considered the entire material against accused on record and on reasonable appreciation of evidence, after assigning detailed and cogent reasons, has acquitted the accused/respondent. The findings of Lower Court cannot be said to be contrary to the evidence on record. The judgment is not patently illegal or perverse, therefore, no case for interference in the finding of acquittal is made out.
This application for leave to appeal against acquittal deserves to be and is hereby rejected - Appeal dismissed.
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2023 (8) TMI 650
Removal from Office/duty - Bank officer - Scope of public servant - conspired with other co-accused to cheat the Bank by sanctioning a corporate loan of Rs. 22.50 crore in favour of M/s Sven Genetech Limited, Secunderabad - appellant serving in his capacity as an Assistant General Manager, State Bank of India, Overseas Bank - applicability of Section 197 of the CrPC - permissible for the Special Court (CBI) to proceed against the appellant for the offences punishable under the IPC despite the fact that the sanction under Section 19 of the PC Act, 1988 to prosecute the appellant for the offences under the PC Act, 1988, is not on record as the same came to be declined.
Whether the appellant, serving in his capacity as an Assistant General Manager, State Bank of India, Overseas Bank, is removable from his office save by or with the sanction of the Government so as to make Section 197 of the CrPC applicable? - HELD THAT:- Section 197 of the Cr PC provides that when any person who is or was a public servant, not removable from his office save by or with the sanction of the Central Government or State Government is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duties, no Court shall take cognizance of such offence, except with the previous sanction of the appropriate Government - protection of sub-section (1) of Section 197 of CrPC is available only to such public servants whose appointing authority is the Central Government or the State Government and not to every public servant.
The legislature has given great importance to sanction as is evident from the Scheme of the CrPC. Section 216 of the CrPC gives power to the Court to alter or add to any charge at any time before judgment is pronounced but sub-section (5) thereof provides that if the offence stated in the altered or added charge is one for the prosecution of which previous sanction is necessary, the case shall not be proceeded with until such sanction is obtained, unless sanction has been already obtained for a prosecution on the same facts as those on which the altered or added charge is founded.
The appellant was serving as an Assistant General Manager, State Bank of India, Overseas Bank at Hyderabad. State Bank of India is a Nationalised Bank. Although a person working in a Nationalised Bank is a public servant, yet the provisions of Section 197 of the CrPC would not be attracted at all as Section 197 is attracted only in cases where the public servant is such who is not removable from his service save by or with the sanction of the Government. It is not disputed that the appellant is not holding a post where he could not be removed from service except by or with the sanction of the Government. In this view of the matter, even if it is alleged that the appellant herein is a public servant, still the provisions of Section 197 of the CrPC are not attracted at all.
The question as to whether a Manager of Nationalised Bank can claim benefit of Section 197 of the CrPC is not res integra. This Court in K. Ch. Prasad v. Smt. J. Vanalatha Devi and Others [1987 (2) TMI 532 - SUPREME COURT], had the occasion to consider the very same question in reference to one who claimed to be a public servant working in a Nationalised Bank. The application filed by the appellant therein questioned the maintainability of the prosecution for want of sanction under Section 197 of the CrPC, was rejected by the Metropolitan Magistrate and revision to the High Court also met the same fate. This Court, while dismissing the appeal held that though a person working in a Nationalised Bank is a public servant, the provisions of Section 197 are not attracted at all.
It is pertinent to note that the banking sector being governed by the Reserve Bank of India and considered as a limb of the State under Article 12 of the Constitution and also by virtue of Section 46A of the Banking Regulation Act, 1949, the appellant herein is deemed to be a “public servant’ for the purpose of provisions under the PC Act, 1988. However, the same cannot be extended to the IPC. Assuming for a moment that the appellant herein should be considered as a “public servant” for the IPC sanction also, the protection available under Section 197 of the CrPC is not available to the appellant herein since, the conditions in built under Section 197 of the CrPC are not fulfilled.
Is it permissible for the Special Court (CBI) to proceed against the appellant for the offences punishable under the IPC despite the fact that the sanction under Section 19 of the PC Act, 1988 to prosecute the appellant for the offences under the PC Act, 1988, is not on record as the same came to be declined? - HELD THAT:- The offences under the IPC and offences under the PC Act, 1988 are different and distinct. What is important to consider is whether the offences for one reason or the other punishable under the IPC are also required to be approved in relation to the offences punishable under the PC Act, 1988 - It is important to draw a distinction between an order of sanction required for prosecuting a person for commission of an offence under the IPC and an order of sanction required for commission of an offence under the PC Act, 1988.
Although in the present case, the appellant has been discharged from the offences punishable under the PC Act, 1988 yet for the IPC offences, he can be proceeded further in accordance with law - it can be said that there can be no thumb rule that in a prosecution before the court of Special Judge, the previous sanction under Section 19 of the PC Act, 1988 would invariably be the only prerequisite. If the offences on the charge of which, the public servant is expected to be put on trial include the offences other than those punishable under the PC Act, 1988 that is to say under the general law (i.e. IPC), the court is bound to examine, at the time of cognizance and also, if necessary, at subsequent stages (as the case progresses) as to whether there is a necessity of sanction under Section 197 of the CrPC. There is a material difference between the statutory requirements of Section 19 of the PC Act, 1988 on one hand, and Section 197 of the CrPC, on the other.
The object behind the enactment of Section 19 of the PC Act, 1988 is to protect the public servants from frivolous prosecutions. Take a case wherein, the sanctioning authority at the time of declining to accord sanction under Section 19 of the PC Act, 1988 observes that sanction is being declined because the prosecution against the accused could be termed as frivolous or vexatious. Then, in such circumstances what would be its effect on the trial so far as the IPC offences are concerned? Could it be said that the prosecution for the offences under the PC Act, 1988 is frivolous but the same would not be for the offences under the IPC? We are not going into this question in the present matter as sanction initially was not declined on the ground that the prosecution against the appellant herein is frivolous or vexatious but the same was declined essentially on the ground that what has been alleged is mere procedural irregularities in discharge of essential duties. Whether such procedural irregularities constitute any offence under the IPC or not will be looked into by the trial court.
The appeal deserves to be dismissed and is hereby dismissed.
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2023 (8) TMI 649
Dishonour of Cheque - main contention raised by the learned counsel for the petitioner is that there is material alteration and interpolation in the cheque which was in contravention of the RBI Guidelines - HELD THAT:- In M/s Goyal Enterprises Versus State of Jharkhand, [2011 (12) TMI 786 - JHARKHAND HIGH COURT], the Court held that change of date on the cheque amounted to material alteration in the absence of the signature of the drawer.
In the present case, the complaint does not disclose that the cheque was materially altered or that it was dishonoured first time due to a material alteration or as to how and at what stage did Sudha Mittal purportedly sign/counter-sign the material alterations - A perusal of the CTS Cheque (Annexure P-4) would reveal cutting on the name of the beneficiary and the amount in words. There appears to be an overwriting on the amount in figures as well. Therefore, in terms of the RBI Guidelines dated 22.02.2010 (Annexure P-4/A) which have statutory force, read with Section 87 of the Negotiable Instruments Act, the cheque was not valid tender and could never have been presented for encashment even assuming that the material alterations were signed by Sudha Mittal and assuming that she was competent to sign the same despite the fact that she was not an executant of the cheque.
Though, the cheque has been dishonoured due to closure of the bank account, since the very cheque in question is materially altered and had been returned back first time on the grounds of material alteration, the provisions of Section 87 of the Negotiable Instruments Act and the RBI guidelines would apply rendering the cheque void, moreso, when the complaint does not explain as to how the materially altered cheque came into the possession of the complainant.
The continuation of the proceedings in the present cases would be nothing but an abuse of the process of the Court - the complaint is quashed.
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2023 (8) TMI 599
Dishonour of Cheque - statutory notice of demand was not served on the accused - vicarious liability of directors - Section 141 of the NI Act - HELD THAT:- Sub-section 1 of Section 141 of the NI Act required the complainant to aver that the present appellants at the time of the commission of the offence were in charge of, and were responsible to the company for the conduct of the business of the company. In the present case, all that the second respondent has alleged is that the appellants were liable for transactions of the company and that they were fully aware of the issuance of the cheques and dishonour of the cheques.
The compliance with the requirements of sub-Section 1 of Section 141 N.I. Act was made by the second respondent. The most important averment which is required by sub-Section (1) of Section 141 of the NI Act is that the directors were in charge of, and were responsible for the conduct of the company. The appellants are neither the signatories to the cheques nor are wholetime directors - the appeal must succeed and the impugned Order is quashed and set aside, only in so far as the present appellants are concerned.
Whether the second respondent has incorporated the averments which are necessary to be incorporated in a complaint under Section 138 of the NI Act in view of sub-section 1 of Section 141 of the NI Act? - HELD THAT:- There is non-compliance on the part of the second respondent with the requirements of sub-section 1 of Section 141 of the NI Act - It is noted that we are dealing with the appellants who have been alleged to be the Directors of the accused No.1 company. We are not dealing with the cases of a Managing Director or a wholetime Director. The appellants Have not signed the cheques. In the facts of these three cases, the cheques have been signed by the Managing Director and not by any of the appellants.
Section 141 is an exception to the normal rule that there cannot be any vicarious liability when it comes to a penal provision. The vicarious liability is attracted when the ingredients of sub-section 1 of Section 141 are satisfied. The Section provides that every person who at the time the offence was committed was in charge of, and was responsible to the Company for the conduct of business of the company, as well as the company shall be deemed to be guilty of the offence under Section 138 of the NI Act - Merely because somebody is managing the affairs of the company, per se, he does not become in charge of the conduct of the business of the company or the person responsible for the company for the conduct of the business of the company. For example, in a given case, a manager of a company may be managing the business of the company. Only on the ground that he is managing the business of the company, he cannot be roped in based on sub-section 1 of Section 141 of the NI Act.
It is apparent that the words "was in charge of" and "was responsible to the company for the conduct of the business of the company" cannot be read disjunctively and the same ought be read conjunctively in view of use of the word "and" in between.
The submission made by the learned counsel appearing for the second respondent that these averments substantially comply with sub-section (1) of Section 141 of the NI Act, cannot be accepted.
The impugned judgment is set aside insofar as the appellants are concerned - appeal allowed.
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2023 (8) TMI 598
Dishonour of Cheque - acquittal of the accused - acquitting the private respondents on the ground of maintainability of the instant case in terms of Section 141 of the Negotiable Instruments Act - HELD THAT:- The prosecution of other persons under Section 138 NI Act is permissible only when the Company is named as an accused in the complaint.
Where the Company due to, inter alia, inadvertence of the complainant may not have been named as one of the accused(s) in the cause title of complaint, however, from a perusal of such complaint, it can be observed that specific averments/ingredients for the commission of offence under Section 138 NI Act against the company are made out. Under such circumstances, considering the same as mere curable infirmity, Courts have permitted the complainant to amend the complaint by adding the name of Company as one of the accused(s).
In the present case, the petition of complaint itself starts with the statement “It is the case of the complainant that he as a proprietor of M/s. Maa Manasha Enterprise had made payment to Delicious Agro Food Pvt. Ltd. for food product, but the said company had not delivered any such food item and accused being director of the said company had returned the money by issuing a cheque in favour of the complainant”. The accused/petitioner had on application before the trial court also stated that the complainant had entered into the transaction with the company, “Delicious Agro Food Pvt. Ltd.”. The petitioner as director of the company was the person who issued the cheque in this case and the transaction was carried out by the petitioner as director on behalf of the company. As such there is clear averments in the complaint itself, against the company and also its director.
The trial court shall permit the complainant to amend the petition of complaint and then proceed with the case in accordance with law - Appeal allowed.
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2023 (8) TMI 597
Dishonour of Cheque - delay in filing of the complaint under Section 138 of the Negotiable Instruments Act, beyond the period of limitation as envisaged under Section 142(b) of the Negotiable Instruments Act - HELD THAT:- Admittedly, the Demand Notice was issued on 3.1.2013 and received on 7.1.2013, which was allegedly not within the knowledge of the complainant, and thus the case is made out, that the complaint is not barred by limitation. So even if it is taken that the date of receipt was not within the knowledge of the complainant, the service is deemed to be made/effected within 30 days of sending it. So in this case the period of 30 days from 3.1.2013 would end on 2nd February, 2013. 03.01.2013 being excluded. The payment within 15 days would commence on 3rd February, 2013 and end on 18.02.2013. Thirty days thereafter would end on 20th March, 2013. From 19.02.2013 to 28.02.2013 (10 days) and March 20 days. The present complaint was filed on 26.03.2013. There is clearly a delay of 5 days even if the complainant is given the benefit as prescribed.
The order under revision dated 29.06.2019 the order dated 05.01.2018 of the Judicial Magistrate, 1st Court, Malda in 177C/2013 and the Magistrate taking cognizance on 02.04.2013 are all set aside being bad in law - Revision allowed.
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2023 (8) TMI 529
Dishonour of Cheque u/s 138 of NI Act - reduction in the sentences imposed on petitioner - complainant submits that the complainant has received the whole amount of cheque as per the settlement - no minimum sentence provided under the Negotiable Instruments Act, 1881.
HELD THAT:- Since the parties are entering into compromise at the stage of revision, therefore, law laid down by the apex Court in the case of DAMODAR S. PRABHU VERSUS SAYED BABALAL H. [2010 (5) TMI 380 - SUPREME COURT] will be applicable in this case, where it was held that The competent Court can of course reduce the costs with regard to the specific facts and circumstances of a case, while recording reasons in writing for such variance. Bona fide litigants should of course contest the proceedings to their logical end.
Considering the fact that the parties have amicably settled their dispute and have entered into compromise before this Court in the revision and decided to avoid further litigation, hence, the applicant is liable to pay 3% of the cheque amount i.e. Rs.4,500/- by way of cost to be deposited with the “State Legal Services Authority” Indore - Subject to payment of cost at the rate of 3% of the cheque amount with the “State Legal Services Authority” Indore, within a period of 15 days from today, the applicant be released from the jail. Sentence awarded to the applicant is hereby modified by reducing the sentence to the period already undergone.
In case of failure to deposit of the said amount before the State Legal Services Authority, the petitioner shall undergo the original sentence and compensation as awarded by learned trial Court - revision disposed off.
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2023 (8) TMI 528
Dishonour of Cheque - discharge of legally enforceable debt - status of “Sunny Traders” (to whom cheque was issued) - sole proprietor concern or otherwise - HELD THAT:- There is no denial of issuing the cheque by the accused in discharge of his debt and liability and also it being dishonoured, and so also the valid notice. The only contention of the petitioner is regarding the status of “Sunny Traders” which is not clear.
The transaction between the parties is on the basis of a verbal agreement - The business transaction between the parties is also admitted - It is on record by way of evidence before the trial Court that the complainant Avijit Sarkar carries on his business in the name of “Sunny Traders” - petitioner/accused has not adduced any evidence to prove that the complainant is not the sole proprietor of his business. The complainant has clearly proved that he is the sole proprietor of his business “Sunny Traders”.
Thus, the findings of the Appellate Court in the proceeding under Section 138 of the Negotiable Instrument Act, 1981 being in accordance with law, requires no interference by this court and is affirmed - revision application dismissed.
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2023 (8) TMI 527
Dishonour of Cheque - rejection of complaint on the ground that the cheque was presented beyond the period of its validity - burden of proof on the complainant - HELD THAT:- The cheque Ex. P/1 dated 11.02.2015 was valid for three months only. The averment in Para 5 of the complaint as also Pramod Chauhan (CW/1) in his examination-in-chief (para 5) state that on 15.05.2015 accused assured him encashment of cheque and insisted to present the cheque after couple of days. Relying on this assurance, he presented the cheque at Canara Bank, Madhav Ganj, Gwalior. This statement itself shows that cheque was presented after 15.05.2015. The clarification in para 18 and 19 of the evidence of Pramod (CW1) is an attempt in despair to bring the presentation within validity period. Thus, learned Trial Court after considering the evidence on record committed no mistake in holding that cheque was presented beyond the period of its validity.
In the opinion of this Court, learned trial Court has considered the entire material against accused on record and on reasonable appreciation of evidence, after assigning detailed and cogent reasons, has acquitted the accused/respondent. The findings of Trial Court cannot be said to be contrary to the evidence on record. The judgment is not patently illegal or perverse, therefore, no case for interference in the finding of acquittal is made out.
This application for leave to appeal against acquittal deserves to be and is hereby rejected - appeal dismissed.
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2023 (8) TMI 463
Computation of compensation and admissible loss to be compensated by Insurance company - breach by the appellant of the policy conditions - records were not maintained properly and accurately - records were not produced at the time of the survey - whatever records were produced were unsubstantiated - HELD THAT:- Despite the second surveyors report dated 22.09.1995 quantifying the appellant’s loss at ₹ 17,64,097/-, the respondent insurance company chose to repudiate the appellant’s claim in its entirety, basing on the wholly unfounded assertion that the appellant had failed to maintain and provide proper records. This was also despite the clear finding of its earlier surveyors, M/s. Frank and Fair Investigators, that total loss was suffered by the appellant. Further, having attached great importance to the death certificate given by the MPEDA/State Fisheries Department in its policy and its prescribed claim procedure, the insurance company baldly brushed aside the Death Certificate dated 01.05.1995 furnished by the officials of the State Fisheries Department at Visakhapatnam. Merely because the contents thereof were not to its liking, the insurance company could not have ignored the same and swept it under the carpet. More so, as such certification was being made by impartial and independent bodies of significant stature and that, perhaps, was precisely the reason why the insurance company had attached such importance to it in its norms - Having undertaken to indemnify an insured against possible loss in specified situations, an insurance company is expected to make good on its promise in a bonafide and fair manner and not just care for and cater to its own profits. In effect, the action of the insurance company in refusing to act upon the Death Certificate dated 01.05.1995 issued by the Directorate of Fisheries, Visakhapatnam, cannot be countenanced.
Admittedly, the appellant would be entitled to the lowest of the aforestated three valuations, viz., ₹ 75,87,750/-. As the respondent company would have already paid the appellant the amount quantified by the NCDRC in the impugned order, viz., ₹ 30,69,486.80, the appellant would be entitled to receive the balance amount of 45,18,263.20. The delay on the part of the insurance ₹ company in settling the appellant’s claim fairly and in a timely manner warrants that it pays interest on the amount due and payable to the appellant in terms of this order - Though the appellant claims that bank deposit interest rates ranged between 12% to 13% during the financial year 1995-1996, we find from the RBI statement, relied upon in this regard, that the interest rate for the financial year 1994-95 was 11% and for the year 1996-97, it was between 11% to 13%. That being so, the interest rate fixed by the NCDRC, viz, 10% is held to be just and equitable.
The sum of ₹.45,18,263.20 shall be remitted by the respondent insurance company to the appellant, with simple interest thereon @ 10% from the date of the complaint till the date of realization, within six weeks from today.
Appeal disposed off.
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2023 (8) TMI 462
Dishonour of Cheque - complainant filed the complaint on the basis of notice posted on second occasion - complaint dismissed on the ground of being time barred - opportunity to the complainant to explain delay occurred or not - HELD THAT:- The Hon’ble Supreme Court in case of BIRENDRA PRASAD SAH VERSUS THE STATE OF BIHAR AND ORS. [2019 (5) TMI 1912 - SUPREME COURT] dealt with similar situation. When the notice is sent on first occasion and when no service proof is available and when notice is posted on second occasion, what should be the approach of the trial Court is discussed and it was held that The High Court has merely adverted to the presumption that the first notice would be deemed to have been served if it was dispatched in the ordinary course. Even if that presumption applies, we are of the view that sufficient cause was shown by the Appellant for condoning the delay in instituting the complaint taking the basis of the complaint as the issuance of the first legal notice dated 31 December 2015.
The observation in case Birendra Prasad Sah will be applicable except with one modification. There was no prayer for condonation of delay in present complaint. But foundation is there. Complainant has pleaded why notice was sent by U.P.C. During evidence, he has also produced the envelopes which were unclaimed. This Court feels that the litigant should not suffer for want of necessary prayers for condonation of delay.
The prosecution under Negotiable Instruments Act is quasi civil. The appellant needs to be given an opportunity to pray for condonation of delay. This Court has not given any findings on other issues. At the same point, the complainant needs to be saddled with cost of Rs.5,000/- If the delay is condoned there is no need to adduce fresh evidence - appeal allowed.
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2023 (8) TMI 461
Dishonour of Cheque - insufficiency of funds - failing to discharge his initial burden of proof by the complainant - rebuttal of statutory presumption - HELD THAT:- On going through the judgements of the learned Magistrate and the learned Session Judge, it is before this court that there is sufficient evidence to show that the cheque was duly issued and after completion of all formalities the proceedings under section 138 NI act was initiated.
The findings of the session judge that respondent No.1/complainant completely failed to discharge his initial burden of proof is totally erroneous and bad in law. The Session Judge totally overlooked the fact that Sec 139 N.I Act clearly includes a presumption that there exists a legally enforceable debt or liability. However the presumption is rebuttable by the accused. There is no such requirement of the complainant to discharge his initial burden of proof as held by the Session Judge.
The question of failing to discharge his initial burden of proof” by the complainant as held by the session is erroneous and bad in law and the judgement under revision is thus liable to be set aside - The case is of the year 2017. Five years have passed. Accordingly the amount of fine is modified to Rupees 4,00,000/- instead of Rs 5,20,000/- to be paid within two months from the date of this judgement, in default the accused shall serve out his sentence of imprisonment in default of fine.
The Judgement is hereby set aside - revision disposed off.
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2023 (8) TMI 402
Criminal Conspiracy - mutation of excess land - allegations against the petitioners are of mutating more land than the area of the plot which has also been admitted - HELD THAT:- The Court has gone through the contents of the discharge petitions as well as the impugned order and finds that the allegations against the petitioners who happened to be Circle Officers are there of mutating more lands of the plots in question. A large number of innocent public have been cheated by M/s Sanjeevani Buildcon Pvt. Ltd. in conspiring with the others including the petitioners which has been revealed in the charge sheet. In the charge sheet the action of the petitioners have been discussed elaborately in all the cases and the learned counsel for the petitioners have also admitted in their argument that they have done excess mutation of the plot in question.
The question remains that as to whether in absence of their connivance along with M/s Sanjeevani Buildcon Pvt. Ltd. the said mutation can be done or not? It appears that Circle Inspectors have also been charge sheeted which suggest that all were in connivance of such excess mutation of the plot in question. The discharge petition was the subject matter before the Hon’ble Supreme Court in the case of STATE OF T. NADU TR. INSP. OF POLICE AND STATE REP. BY DEPUTY SUPDT. OF POLICE VIGILANCE AND ANTI-CORRUPTION VERSUS N. SURESH RAJAN & ORS. AND K. PONMUDI & ORS. [2014 (1) TMI 553 - SUPREME COURT], wherein it was held that if the court thinks that the accused might have committed the offence on the basis of the materials on record on its probative value, it can frame the charge; though for conviction, the court has to come to the conclusion that the accused has committed the offence. The law does not permit a mini trial at this stage.
The settled law does not permit a mini trial at the stage of discharge and facts are there that can be only subject matter of trial. The purpose of framing charge is to intimate the accused about clear unambiguous and precise nature of acquisition and the accused is called upon to meet the course of trial.
The High Court is not required to scrutinize the evidence and advancing elaborate arguments in that count as the High Court is not exercising its power at the appellate stage and only the said argument is being heard in a criminal revision petition - under section 13(1)(d)(i) of the P.C.Act obtaining any valuable thing or pecuniary advantage by corrupt or illegal means by a public servant itself would amount to criminal misconduct. On the same reasoning under section 13(1)(d)(ii) of the P.C.Act obtaining a valuable thing or pecuniary advantage by abusing his official position as a public servant either for him.
In a criminal conspiracy the intention to do a criminal act is itself a crime unlike other offences which require not only the intention to do a criminal act but also in addition something committed in execution of the intention. The essence of conspiracy being bare agreement between the conspirators, the same has to be proved in the manner allowed by law. While accepting the proof of conspiracy reality of the situation has to be taken into account. Conspiracy as a whole is brought about in secrecy and the proof of the same, by adduction of evidence direct, is really an impossible feat in most of the cases, though in the rarest of rare occasion, the possibility of obtaining such evidence is there and in view of that the conspiracy may be proved in most of the cases, by process of inference or induction from relevant proved facts and circumstances which can be only by way of trial and not at the time of framing of charge and in that view of the matter, the discharge petitions cannot be allowed.
he Court finds that there are allegations against the petitioners of mutating more land than the area of the plot which has also been admitted in the argument of the learned counsel for the petitioners which cannot be ruled out at this stage that the petitioners were not in connivance with the said M/s Sanjeevani Buildcon Pvt. Ltd. The poor people have been cheated by the said M/s Sanjeevani Buildcon Pvt. Ltd. and the connivance of these petitioners cannot be ruled out considering that in two of the cases one of the petitioner has refused the mutation on the ground that the land is excess meaning thereby that they were knowing about the area of the land and inspite of that they have mutated the excess land.
Revision dismissed.
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