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Indian Laws - Case Laws
Showing 421 to 440 of 750 Records
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2023 (6) TMI 1356
Demand of illegal gratification or not - HELD THAT:- In the facts of the case, it was held that there are no circumstances brought on record which will prove the demand for gratification. Therefore, the ingredients of the offence under Section 7 of P.C Act were not established and consequently the offence u/s.13(1)(d) will not be attracted.
In the present case the complainant has deposed before the Court. His evidence does not inspire confidence. Evidence of panch witness is not reliable to prove the demand and acceptance of amount as illegal gratification. The foundation of charge itself is not established. No other circumstances can be relied upon to convict the appellant for the offences for which he is charged.
The prosecution has failed to establish the demand and acceptance of bribe - the conviction is required to be set aside - appeal allowed.
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2023 (6) TMI 1351
Criminal conspiracy to cheat BHEL in the matter of award of contract for the construction of desalination plants - Conviction of accused - Section 197 of the Code - correctness of the procedure adopted while granting pardon Under Section 306 of the Code - culpability of each of the Appellants.
Revolving around Section 197 of the Code - HELD THAT:- It must be remembered that in this particular case, the FIR actually implicated only four persons, namely PW-16, A-3, A-4 an A-5. A-1 was not implicated in the FIR. It was only after a confession statement was made by PW-16 in the year 1998 that A-1 was roped in. The allegations against A-1 were that he got into a criminal conspiracy with the others to commit these offences. But the Management of BHEL refused to grant sanction for prosecuting A-3 and A-4, twice, on the ground that the decisions taken were in the realm of commercial wisdom of the Company. If according to the Management of the Company, the very same act of the co-conspirators fell in the realm of commercial wisdom, it is inconceivable that the act of A-1, as part of the criminal conspiracy, fell outside the discharge of his public duty, so as to disentitle him for protection Under Section 197(1) of the Code - the contention advanced on behalf of A-1 is upheld, that the prosecution ought to have taken previous sanction in terms of Section 197(1) of the Code, for prosecuting A-1, for the offences under the Indian Penal Code.
Revolving around grant of pardon - HELD THAT:- The approver was examined as PW-16 during trial and he was cross examined on the contents of the confession statement. The Magistrate who recorded the confession was examined as PW 17 and the Additional Chief Judicial Magistrate who granted pardon was examined as PW-18. The proceedings before the XVIII Metropolitan Magistrate, the petition Under Section 306 of the Code and the proceedings on tender of pardon were marked respectively as EXX. P-50, 51 and 52. All the Accused were given opportunity to cross examine these witnesses both on the procedure and on the contents - there was no violation of the procedure prescribed by Section 306(4)(a) of the Code.
Revolving around the merits of the case qua culpability of each of the Appellants - HELD THAT:- A-1 was found guilty of an offence Under Section 193. Section 193 applies only to false evidence given in any stage of a judicial proceeding or the fabrication of false evidence for the purpose of being used in any stage of a judicial proceeding. The allegation against A-1 was not even remotely linked to any of the Explanations Under Section 193 of the Indian Penal Code. Therefore, the judgment of the Trial Court and that of the High Court convicting A-1 for the aforesaid offences and sentencing him to imprisonment of varying terms and fines of different amounts are liable to be reversed.
A-4 had no role in choosing the tenderers, but entered the picture only after the offers were received from the tenderers. Admittedly, A-4 was subordinate to both PW-16 and A-3 - Thus, the competent authority refused to grant sanction to prosecute A-3 and A-4 for the offences under the PC Act. The Trial Court and the High Court did not find A-4 as a co-conspirator, which is why he was not held guilty of the offence Under Section 120-B Indian Penal Code. Section 193 Indian Penal Code had been included completely out of context - the conviction of A-4 by the Trial Court as confirmed by the High Court is wholly unsustainable and is liable to be set aside.
The finding recorded by the Trial Court and the High Court as though A-7 committed forgery and cheating by making applications for the issue of demand drafts in the names of bogus firms is wholly unsustainable - only connecting link pointed out against A-7 was the transfer of money to the total extent of Rs. 1,52,50,000/- to the account of a firm of which he was a partner. This by itself will not constitute any offence. Therefore, the charge that A-7 abetted the commission of the crime by the other Accused, should also fail. This is especially so when A-5, whose proprietary concern bagged the contract, not only lost the contract but also allowed the bank guarantee to be invoked by BHEL and in addition, left a huge amount of Rs. 2.60 crores still with BHEL. Therefore, the conviction and sentence awarded to A-7 cannot be sustained.
The judgment of the Special Court for CBI cases convicting the Appellants for various offences and the judgment of the High Court confirming the same are set aside - Appellants are acquitted of all the charges - Appeal allowed.
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2023 (6) TMI 1342
Seeking for interim order - HELD THAT:- There is no scope of passing any interim order in the matter and the issue involved in this writ petition requires affidavit from the respondent for final adjudication.
Let the respondents file affidavit-in-opposition within four weeks, petitioner to file reply thereto, if any, within two weeks thereafter - List this matter for final hearing in the monthly list of September, 2023.
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2023 (6) TMI 1331
Seeking to appoint an arbitrator to adjudicate upon the claims made therein by the petitioner - HELD THAT:- That part of Clause 33 of the agreement between the parties providing for constitution of a Dispute Resolution Committee with a stipulation that before availing of dispute resolution, the disputed amount has to be deposited, is invalid and contrary to law for more than one reason. The first and foremost is that it fetters the right of the petitioner, a party to the arbitration agreement to avail of arbitration which is a statutory right.
If the petitioner is making a claim which is then and there disputed by the respondent, why should the petitioner, being the claimant be asked to deposit the disputed amount? When the petitioner is making a claim against the respondent, it is unable, at that point of time, to know whether the whole claim or part of it would be admitted, or the whole of it denied by the latter. Hence, it is unable to gauge the disputed amount. Even if it were possible for the respondent to notify the disputed amount immediately, the clause would only be operative if the respondent was simultaneously making a counter claim more than the petitioner’s claim which was being denied by the petitioner, by seeking reference of the dispute to arbitration.
If you read Section 12(5) of the said Act along with its 7th schedule, the General Manager or any other employee of the respondent past or present, is disqualified from being an arbitrator on the likelihood of bias.
The arbitration clause provides for appointment of a sole arbitrator by the Chairman of the respondent. If the petitioner also had a right to nominate an arbitrator, then it could have been argued that the General Manager’s power to appoint an arbitrator of his choice was counter balanced by the petitioner’s similar right and the clause adjudged to be valid in terms of CENTRAL ORGANISATION FOR RAILWAY ELECTRIFICATION VERSUS M/S ECI-SPIC-SMO-MCML (JV) A JOINT VENTURE COMPANY [2019 (12) TMI 841 - SUPREME COURT].
Under Section 11 sub-section 6A of the said Act, the court exercising power under Section 11 of the said Act has the power to go into the question of validity of an arbitration agreement - it is held that the part of the arbitration clause providing for appointment of an arbitrator is non-est. Therefore, the arbitration clause between the parties does not contain any valid provision for appointment of an arbitrator. The court has to exercise the power.
This application is disposed off by referring the disputes between the parties as raised in this Section 11 petition and the claim and counter claim that may be filed by the parties in terms thereof to be adjudicated by a learned arbitrator.
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2023 (6) TMI 1315
Seeking release of petitioner from illegal detention - Territorial Jurisdiction - HELD THAT:- Once the order of remand has been passed by the competent court at Panchkula, the appropriate remedy for the petitioners is to approach the High Court of Punjab and Haryana at Chandigarh challenging the order of remand. Any order passed by this court once an order of remand has been passed by Panchkula Court would be improper.
As regards informing this court on 09.06.2023 with regard to pendency of the FIR 0006/2023 dated 17.04.2023 and second ECIR being 17/2023 is concerned, the said submission would be relevant while challenging the order of remand dated 09.06.2023 passed by the Panchkula court.
Application dismissed.
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2023 (6) TMI 1149
Dishonour of Cheque - rebuttal of presumption under Section 139 of the Negotiable Instruments Act - HELD THAT:- The Defendant having voluntarily handed over the said cheque duly signed, even assuming the same was blank would necessarily be liable in respect thereof. There is no doubt that the practice of handing over blank cheques is one which is attended with risks.
The law is well settled that the presumption under Section 139 of the Negotiable Instruments Act would apply. Therefore, when a person voluntarily hands over a blank cheque he therefore accepts the risks of the consequences that may follow in doing so. The handing over of a blank cheque also presupposes (a) that the same was handed over for consideration and/or some benefit having been or to be received by the drawer and (b) the existence of a high level of faith and trust between the Parties. The Defendant therefore cannot be permitted to now raise defences that were not expressly taken at the time of the handing over of the said cheque, namely that the same was handed over only as security etc.
Had this been the case, it was incumbent for the Defendant to have made this clear in writing at the time the cheque was handed over. Presumably the Defendant did not do so as monies were being lent and accepted in cash as is the case of the Plaintiff.
While there is no doubt that the presumption under Section 139 of the Negotiable Instruments Act in this case arises, it is well settled that the same is a rebuttable presumption.
Leave to defend the present Suit is granted to the Defendant subject to depositing a sum of Rs. 50,00,000/- within a period of six weeks from today - If the aforesaid deposit is made within the stipulated period, this Suit shall be transferred to the list of Commercial Causes and the Defendant shall file written statement within a period of six weeks from the date of deposit - Application disposed off.
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2023 (6) TMI 1148
Dishonour of Cheque - Respondent/ Accused was acquitted for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 - failure to disclose in statement of Account the amount which was due to him from the Accused for the year ending 31.03.2015 - failure to step into the witness box and the presumption under Section 139 of the N.I. Act has not at all been rebutted - error in shifting such burden on the Complainant or not - HELD THAT:- There are catena of decisions showing the settled proposition of law that once the signature on the cheque is not disputed and when conditions imposed under Section 138 of the N.I. Act are fulfilled while presenting the cheque and thereafter, by issuing legal notice, the Magistrate is duty bound to draw a presumption under Section 139 of the N.I. Act in favour of the Complainant that such cheque is issued towards legally enforceable debt.
The cheque in question was issued by the Accused, which is not at all disputed. The question which the Accused tried to raise is that such a cheque is not issued towards the supply of material. The burden of this aspect in order to rebut the presumption under Section 139 of the N.I. Act is certainly on the Accused.
The cross examination of the Complainant shows only suggestions given to the Complainant to that effect. The delivery challans are produced by the Complainant, which were disbelieved by the Trial Court on the precise ground that the signature on the said delivery challans are not matching with the signature of the Accused - The person who receives the material at the site normally signs such delivery challans. Therefore, comparing the signature of the Accused where there is no denial to show that he personally did not receive such material at the site was completely unwarranted.
The observations of the learned Magistrate in paragraph 36 of the impugned judgment are therefore clearly perverse and against the documents produced on record since there is no other material which has been brought on record on behalf of the Accused and of rebutting presumption under Section 139 of the N.I. Act, dismissal of the complainant and acquittal of the Accused by the Trial Court needs to be interfered - appeal allowed.
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2023 (6) TMI 989
Rejection of application made by the Petitioner for calling upon the Income Tax Department to provide a proper certificate / letter in support of the Income Tax records - Information sought by the Family members to settle dispute between them - HELD THAT:- The Hon’ble Supreme Court in the case of ANVAR P.V VERSUS P.K. BASHEER AND OTHERS [2014 (9) TMI 1007 - SUPREME COURT] has observed that whenever a person is seeking to rely upon a electronic record, for the same to be produced in the evidence, a certificate under Section 65-B of the Evidence Act is mandatory.
The Hon’ble Supreme Court in the case of Arjun Panditrao Khotkar [2020 (7) TMI 740 - SUPREME COURT] has clearly held that Section 65-B(4) of the Evidence Act to be mandatory and in paragraph 52 it has held that if a person has done everything possible to obtain the necessary certificate, but has not been able to obtain the same or is refused, then he can make an application to the Trial Court for production and the Trial Court must summon the person and direct that such certificate be given.
The Trial Court has observed that the Petitioner neither moved an application on his own account for getting the certificate directly from the concerned department nor filed an application before the Court for directing the concerned department for submitting the certificate before passing an order of admissibility of documents - The documents in respect of Shri Prakash Ahuja, having admittedly, been furnished by the Income Tax Department, the said certificate being mandatorily required under Section 65-B to certify the documents necessary to decide the lis between the parties, an application for the same cannot remotely said to be an abuse of the process of law or be an application to cover up lapses in the evidence. The Petitioner had put all his efforts to obtain the said certificate and therefore it also cannot be said that there was a lapse on his part.
The Petitioner has done everything to obtain the necessary certificate in respect of the documents produced by the Income Tax Department, had also moved the application Exh. 453 before the Trial Court for issuance of direction to the Income Tax Department for the necessary certification and despite that the Trial Court has observed that the Petitioner has not moved an application before the Court for direction to the concerned department for submitting certificate. The learned Trial Judge has clearly erred in holding so.
The documents filed below list Exh. 313 are photocopies produced by the Income Tax department without certificate, which documents are sought to be produced and used in evidence in the said suit. The Trial Court is, therefore, directed to call upon the Income Tax department to provide a proper certificate as per the requirements of Section 65-B of the Indian Evidence Act, 1872 in respect of the documents of Income Tax records of late Mr. Prakash Ahuja below list Exh. 313 within a period of four weeks from the date of uploading of this order.
Petition allowed.
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2023 (6) TMI 946
Dishonour of Cheque - complaints had been returned by the trial Court to the petitioners on the premise that the Court at Bathinda had no territorial jurisdiction to entertain the same - HELD THAT:- Both the sides are in agreement that Section 142-A(2) of the Act has been inserted vide amendment in the year 2015 which came into force w.e.f. 15.06.2015. As per amendment, the Courts situated at both the places i.e. of drawer Bank and drawee Bank, would have the territorial jurisdiction to entertain the complaint and further as held by Hon’ble Supreme Court in Bridgestone India Pvt. Ltd. [2015 (12) TMI 777 - SUPREME COURT], the amendment will have retrospective effect. Hence, the impugned orders dated 23.04.2015 (in both petitions) being against the statute and the law laid down, are set aside. The trial Court at Bathinda is directed to entertain the complaints filed by the petitioners and proceed further with the trial as in accordance with law.
Petition allowed.
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2023 (6) TMI 894
Dishonour of Cheque - vicarious liability of director - whether the complaint was maintainable under Section 138 of the Negotiable Instruments Act against its Director in absence of the company being joined as party respondent accused in the original complaint? - HELD THAT:- The issue is no more res-integra. The issue arose for consideration of the Hon’ble Supreme Court in the case of Aneeta Handa [2012 (5) TMI 83 - SUPREME COURT]. The Hon’ble Supreme Court was examining the controversy as to whether any person who has been mentioned in Section 141(1) and 141(2) of the Act can be prosecuted without the company being impleaded as accused. To appreciate the controversy, the Hon’ble Supreme Court had proceeded to examine the relevant provisions of the Negotiable Instruments Act. The Court upon careful examination of Section 138 of the Act and upon appreciation of the proviso, notice that cheque has to be drawn by a person on the account maintained by him and must have issued the cheque in discharge of any debt or other liability. The Hon’ble Supreme Court further notice that the word “drawer” has been defined under Section 7 of the Act which mean maker of a bill of exchange or a cheque. Thus, the Court held that even an authorized signatory in company becomes a drawer as he has been authorized to do so in respect of account maintained by the company - The Hon’ble Supreme Court upon analysis of the deeming fiction created in the proviso to Section 141 held that it crystallizes the corporate criminal liability and vicarious liability of a person who is in charge of the company.
Thus from the aforesaid legal position, there cannot be any iota of doubt for maintaining prosecution under Section 141 of the Act, the company must be joined as an accused. The other categories of offenders can only be brought in the dragnet on the touchstone of vicarious liability as the same has been stipulated in the provision itself.
The Court notice that in absence of specific averment as to the role of the respondent and particularly in view of the material at the relevant time, which in no manner connected with the affairs of the company, rejected the appeal of the complainant. In the instant case, the contents of the complaint as reproduced in the impugned order goes to suggest that the complainant has even failed to make necessary averments with regard to the role of the accused by virtue of his position to make him liable or to be proceeded with the prosecution under Section 138 of the Negotiable Instruments Act.
As held by the Hon’ble Supreme Court in the case of Aneeta Handa, criminal liability can be only imposed if the principal offenders viz. concerned company being joined as party accused - thus no error is committed by the learned Magistrate in not entertaining the complaint having noticed the lacuna of not joining the company as party respondent.
The present application of leave to appeal fails and stands rejected.
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2023 (6) TMI 893
Dishonour of Cheque - discharge of legal liability - requirement of additional evidence for adjudication of the case before the Appellate Court - Section 391 Cr.P.C. - HELD THAT:- It is apparent that the petitioner had been prosecuted by the respondent-company in a complaint filed under Section 138 of the Negotiable Instruments Act. After the trial, the petitioner was convicted and sentenced by the trial Court for the offence under Section 138 of the Negotiable Instruments Act for a period of one year of rigorous imprisonment with a compensation of Rs.23 lacs to the complainant - It is apparent from the perusal of the record that the complainant is SEBI registered company and the petitioner was a client of the same. Both of them entered into an agreement exhibited as Ex.C-2. As apparent from the arguments raised, the crux of the arguments raised by learned counsel for the petitioner is that on his asking the complainant had not produced the complete record pertaining to sell and buying of holdings. It is an admitted fact that the petitioner was given numerous opportunities to lead his evidence. He proved the documents as Ex.DX to DZ. Counsel for the petitioner has laid emphasis on the deposition of the CW-2 Ajit Baluni.
The contentions regarding charge of commission/ brokerage have been admitted by the witnesses produced by the complainant. The record which was produced by the complainant had also been put to the petitioner and he had cross-examined the complainant witness regarding the same. Thus, this is an admitted fact that record which was not produced as contended by learned counsel for the petitioner, was very much in the knowledge of the petitioner since beginning. But despite having availed numerous opportunities, he did not make any endeavour to bring the same on record, if it was so essential for just decision of the case. Even after filing of this appeal, the present application has been filed at a belated stage. There is no gainsaying that the Appellate Court had the jurisdiction to invoke its power under Section 391 Cr.P.C. but the same cannot be invoked in a cavalier manner.
There is no denial to the fact that statutory power under Section 391 Cr.P.C. can be invoked by the Court at any stage if the circumstances prove that production of the evidence prayed for, is necessary for the just decision of the case and accepting the same would meet the ends of justice. However, in the present case, the petitioner has failed to make out a case that the additional evidence prayed for is necessary for decision of the case and thus, the appeal being without any merit, has been rightly dismissed by the appellate Court.
Petition dismissed.
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2023 (6) TMI 892
Dishonour of Cheque - compounding of offences - amicable settlement arrived inter-se parties - whether this Court can quash the judgments of conviction and order of sentence recorded by the courts below on the basis of amicable settlement arrived inter-se parties while exercising power under Section 482 of CRPC or not?
HELD THAT:- This Court vide judgment passed in titled Gulab Singh v. Vidya Sagar Sharma [2017 (3) TMI 1891 - HIMACHAL PRADESH HIGH COURT], while relying upon judgment of Hon'ble Apex Court as well as other Constitutional Courts has already held that court, while exercising power under Section 147 of Negotiable Instruments Act, court can proceed to compound offence even in those cases, where accused stands convicted.
The Hon’ble Apex Court in K. Subramanian Vs. R.Rajathi [2009 (11) TMI 1013 - SUPREME COURT] has categorically held that in view of the provisions contained under Section 147 of the Act, read with Section 320 of Cr.P.C, compromise arrived inter se the parties, can be accepted and offence committed under Section 138 of the Act, can be ordered to be compounded.
This Court finds that court while exercising power under Section 482 Cr.PC can proceed to compound the offence even after recording of the judgment of conviction and order of sentence. In the aforesaid judgment Hon’ble Apex Court has categorically held that High Court having regard to the nature of offence and the fact that parties have settled their dispute and the victim has willingly consented to the nullification of criminal proceedings can quash such proceedings in exercise of its inherent powers under Section 482 Cr.PC., even if the offense are non-compoundable, however while doing so, high court is under obligation to evaluate the consequential effects of the offence beyond the body of an individual and thereafter, adopt a pragmatic approach to ensure that the felony even if goes unpunished, does not tinker with or paralyze the very object of the administration of criminal justice system.
Since in the case at hand, petitioner-accused and complainant have resolved their dispute amicably under OTS Scheme, no fruitful purpose would be served by sending the person behind bars pursuant to judgment of conviction recorded against him. In the peculiar facts and circumstances of the case as well as law taken into consideration, this Court finds no impediment in accepting the prayer made by the parties for quashing of Complaint (i.e Registration No. 222/2017) as well as consequential proceedings arising out of it.
The present petition is disposed of as compromised, as a result of which, Complaint No. 290-I/2017 (Registration No. 222/2017) as well as judgment of conviction and order of sentence dated 30.7.2018 and 23.6.2021, passed by the courts below are quashed and set-aside and petitioner is acquitted of the charges framed against him under Section 138 of the Act.
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2023 (6) TMI 840
Dishonour of Cheque - Rebuttal of presumption - discharge of burden to prove - main crux of argument is that once issuance of cheques are admitted, the presumption will come into picture and rebuttal evidence given by the accused in present case is insufficient - service of notice on proper address and drawing of presumption under Section 27 of the General Clauses Act - HELD THAT:- It is true that all these presumptions are not conclusive presumptions but they are rebuttal presumptions. When we have considered the evidence given by the complainant in both the cases and common evidence given by the accused in both complaints, it is found that both the parties have taken upon themselves the burden to prove the fact pleaded by them. No doubt the complainant in this case can certainly rely upon the presumption under sections 118 and 139 of N.I. Act. The signature on both cheques is not disputed by the accused. What is disputed is the contents of cheques.
When the accused has admitted his signature, he has given authority to the complainant to make cheques complete in all respect. It is true that if there is material alteration that is to say any alteration carried out without consent of the parties, it affects the validity of negotiable instrument as contemplated under section 87 of the N.I. Act - the signatures and amount in figures are of accused. So filling other details cannot be said to be material alteration.
The burden on accused is not heavy as that of the complainant. The Court has to see whether probable case so as to create dent in case of the complainant has been made out or not.
The law does not provides for contingency of adducing evidence by the complainant, after accused has adduced evidence. From the cross examination, the complainant has to forsee what type of case is pleaded by the accused. The complainant has failed to anticipate that contingency. So the beneficiary is none other than accused.
Service of Notice - HELD THAT:- The issue of service of notice is only of academic importance. It is true that the complainant could not state that the signature on acknowledgment belongs to accused. If the accused is available at the time of delivery and if she has signed, the complainant/sender of notice will be in position to identify the signature and not otherwise. But the address on the envelope is not disputed by the accused. So the presumption under section 27 of the General Clauses Act will certainly help the complainant. Both the sides have relied upon certain judgments on the point of manner of discharge of burden to prove service of notice - the complainant has not satisfied the material ingredients for the offence under section 138 of the N.I. Act.
Appeal dismissed.
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2023 (6) TMI 839
Rejection of application filed by the petitioner by Respondent for allocation of quota to the Haj Group Organizers (HGOs) for Haj 2023 in contravention of the Policy - Compliance with GST law and submission of proof of payment of GSt - violation of the Principles of Natural Justice, equity and good conscience - violation of Article 14 and Article 19(1)(g) of the Constitution of India - HELD THAT:- As is evident, the Registration and allocation of Haj Quota to private tour operators is subject to certain terms and conditions for registration as HGOs. The registration of HGOs not found to be complying with the HGO Policy is liable to be cancelled. In the instant petition, it has been alleged that the registration of the petitioner has been suspended due to their wilful misrepresentation and misreporting of facts to the Ministry, based on which they were registered as HGOs in the first place. The attention of this Court has also been drawn to the conditions as applicable to the registration certificate.
The registration of the HGOs is an absolute right rather than a privileged right that is bestowed upon the concerned HGO based on the fulfilment of certain conditions as laid out under the Policy. Therefore, the offer made by the HGOs to the pilgrims is subject to certain pre-conditions for the grant of registration and is amenable to the fulfilment of the requisite conditions, the non-compliance of which empowers the Ministry to suspend/cancel the registration as well as for blacklisting the company - The conditions inter alia provide that the HGOs will abide by the policy for HGOs for Haj-2023 read with Circular No .15/28/20022-Haj- MoMA dated 14th March 2023 and will be held responsible for noncompliance with any of the terms and conditions of registration with MoMA at any stage. It is also stated therein that the Ministry shall have the right to suspend/ cancel the registration in case of non-compliance with any of the terms and conditions.
In the instant case, it has been alleged that there has been a gross misrepresentation of facts by the petitioner HGOs, which has come to light during the visit of a team of officials from the respondent to the office premises of the petitioner HGO - As per the bilateral agreement entered into between the Government of India and the KSA, for Haj 2023, a total quota of 1,75,025 pilgrims (1,40,000 pilgrims for HCoI and 35,025 pilgrims for the HGOs) has been allocated by the KSA to India.
This Court is of the prima facie opinion that although restrictions and conditions to the issuance of the Registration Certificate as well as to the Quota allotted to the petitioners/HGOs may be imposed, the same should not be held against the pilgrims who, in good faith, registered with the petitioners/HGOs to undertake the pilgrimage. This Court is of the view that such an action would defeat the purpose of the current Haj Policy and is in derogation of Article 25 of the Constitution of India. Article 25 of the Constitution of India guarantees the freedom of conscience and the freedom to profess, practice and propagate religion to all citizens. Haj Pilgrimage and the ceremonies involved therein fall within the ambit of a religious practice, which is protected by the Constitution of India. Religious freedoms are one of the most cherished rights guaranteed and enshrined under the Constitution in line with the vision of the founding fathers of the Modern Indian Republic.
The Haj pilgrimage is undertaken by thousands of pilgrims from India annually. In order to enable the Indian Muslims willing to undertake the Haj pilgrimage, every year a bilateral treaty is executed between India and the Kingdom of Saudi Arabia. In terms of the said agreement, a quota of some pilgrims is allotted to India. The pilgrimage can be undertaken from India only either through the Haj Committee of India (the Haj Committee) or the HGOs - The majority of Haj pilgrims are taken care of by the Haj Committee, and only a limited number of pilgrims can undertake the Haj pilgrimage through HGOs as per the quota of the respective HGO.
This Court refers to the judgment of Union of India and Others v. Rafique Shaikh Bhikan and Another [2012 (5) TMI 858 - SUPREME COURT] wherein this Court emphasized that the main purpose of the Haj Policy was to ensure that pilgrims must be able to perform their pilgrimage duty without undertaking any difficulty, harassment or suffering.
In the present petition, the Court is at this stage is primarily concerned with the pilgrims who intend to travel on Haj Pilgrimage and have paid in advance to the petitioners for the same. Travelling to Haj is not merely a holiday but is a medium of practicing their religion and faith which is a fundamental right. This Court being the protector of the right of the pilgrims shall take the necessary steps in this regard - Accordingly, to ensure that the pilgrims are not obstructed from completing their journey and undertake Haj, the comments in the consolidated list of allocation of Haj Quota for HAJ-2023 issued on 25th May, 2023 by the respondent which reads as “Registration Certificate & Quota Kept in abeyance till finalization of proceedings in complaint related matter” is stayed.
Petition disposed off.
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2023 (6) TMI 838
Continuation of present proceedings under the NI Act simultaneously, during the pendency of the proceedings under the IBC - Dishonour of cheque - HELD THAT:- While dealing with a similar question, a Three Judge Bench of the Hon’ble Supreme Court in Ajay Kumar Radheyshyam Goenka vs. Tourism Finance Corporation Of India Ltd [2023 (3) TMI 686 - SUPREME COURT], has held To say that under a scheme which may be approved, a part amount will be recovered or if there is no scheme a person may stand in a queue to recover debt would absolve the consequences under Section 138 of the N.I. Act, is unacceptable.
Thus, what flows from the above law laid down by the Hon'ble Supreme Court is that whereas recovery proceedings barred under Section 14 of the IBC are primarily civil in nature, the proceedings under Section 138 of the NI Act are criminal in nature, and both have a different set of purpose. Furthermore, the complainant approaches the Criminal Court not only for recovery of the legally enforceable debt but also for taking penal action under Section 138 of the NI Act for the offence already committed by the accused by not making the payment of the cheque amount despite the receipt of the statutory notice. Therefore, by operation of the provisions of the IBC, the criminal prosecution initiated against the natural persons under Section 138 read with 141 of the NI Act would not stand terminated.
This Court does not find any merit in the instant petition, which is accordingly dismissed.
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2023 (6) TMI 779
Bribe - Adoption of illegal means by the appellant in obtaining business of international re-insurance cover of another firm on yearly brokerage/commission - HELD THAT:- There was no occasion for interfering with the order of the IRDA by the Tribunal. It is a fact that the order of the Tribunal is in the nature of a remand order and this order in effect has only directed a fresh inquiry.
Appellant had argued that so far as his client’s complaint is concerned, they had discharged their onus by raising sufficient suspicion as regards the deal between the respondent no.5 and the appellant. But, it is found that barring the fact that the appellant had been given the brokerage contract, there is no other cogent material which would warrant a detailed investigation. The Tribunal has, exfacie, gone wrong in observing that the respondent no.5 had relied on documentary evidence in support of the complaint.
The fact finding body has already come to its conclusion on lack of evidence. In the given circumstances, we do not find any useful purpose that would be served in subjecting the appellant or their contract with Jagson to another round of inquiry. In the order under appeal, the Tribunal has observed that the complaint showed that the appellant had relied on documentary evidence in support of the contention that Jagdish Gupta had sought bribe and was bribed by the officers of Marsh for diverting their re-insurance business - no such document found from which such a conclusion could be reached.
The order of the IRDA passed on 9th January 2018 is sustained - appeal allowed.
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2023 (6) TMI 778
Seeking grant of Regular Bail - recovery of contraband - 500.18 Kg. of crystalline powder suspected to be Amphetamine - retraction of statement under Section 67 of the NDPS Act, 1985 - HELD THAT:- It is essential to observe that the date of arrest of the applicant is 21-2-2015 and that a period of more than seven years from the date of arrest of the applicant has since elapsed, the offence allegedly committed by the applicant punishable under Sections 22, 27A and 29 of the NDPS Act, 1985 in relation to the commercial quantity of 500 kgs. of mephedrone allegedly seized from the truck, in which the applicant was also allegedly present, is punishable with Rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years and to a fine which shall not be less than Rs. 1 Lakh but which may extend to Rs. 2 lakhs.
The alleged disclosure statement made by the applicant in terms of Section 67 of the NDPS Act, 1985, in terms of the verdict of the Hon’ble Supreme Court in TOFAN SINGH VERSUS STATE OF TAMIL NADU [2013 (10) TMI 361 - SUPREME COURT] is not admissible in evidence.
In view thereof in terms of the verdict of the Hon’ble Supreme Court in SUPREME COURT LEGAL AID COMMITTEE REPRESENTING UNDERTRIAL PRISONRE VERSUS UNION OF INDIA [1994 (10) TMI 290 - SUPREME COURT], the applicant who is charged with the offences punishable under NDPS Act, 1985 with the minimum imprisonment of ten years and the minimum fine of Rs. 1 Lakh and who has been in jail for more than five years, is entitled to be released on bail, and is thus, subject to terms and conditions imposed - bail application allowed.
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2023 (6) TMI 688
Dishonour of Cheque - entitlement for Interim Compensation - main contention of the petitioner is that the petitioner was not given a hearing by the court - principles of Natural Justice - HELD THAT:- The views of the Hon’ble Supreme Court in G.J. RAJA VERSUS TEJRAJ SURANA [2019 (8) TMI 91 - SUPREME COURT] though on the point of Section 143 N.I. Act being prospective, is relevant to a certain extent in the present case. It was held in the case that It is thus clear that in case an accused, against whom an order to pay interim compensation under Section 143A of the Act is passed, fails or is unable to pay the amount of interim compensation, the process under Section 421 can be taken resort to which may inter alia result in coercive action of recovery of the amount of interim compensation as if the amount represented the arrears of land revenue. The extent and rigor of the procedure prescribed for such recovery may vary from State to State but invariably, such procedure may visit the person concerned with coercive methods.
The Supreme Court in NOOR MOHAMMED VERSUS KHURRAM PASHA [2022 (8) TMI 924 - SUPREME COURT] held that The remedy for failure to pay interim compensation as directed by the Court is thus provided for by the Legislature. The method and modality of recovery of interim compensation is clearly delineated by the Legislature. It is well known principle that if a statute prescribes a method or modality for exercise of power, by necessary implication, the other methods of performance are not acceptable.
Thus, in view of the present position of law as laid down, the order under revision being in accordance with law and causing no prejudice to the petitioner/accused, requires no interference by this court - Revision application dismissed.
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2023 (6) TMI 687
Bribe - bribing the public servant, having abetted P.W. 1 for commission of the offence Punishable Under Section 7 of P.C. Act - conviction of appellant under Section 12 of Prevention of Corruption Act (PC Act) - sentence to undergo one year rigorous imprisonment and fine of Rs. 10,000/- - burden to prove - benefit of doubt when two views are present - error in accepting the evidence of the prosecution witnesses - HELD THAT:- On perusal of the guidelines issued by the Hon'ble Supreme Court in the Lalitha Kumari's case [2013 (11) TMI 1520 - SUPREME COURT] when P.W. 1 informed DCP Venugopal and in turn, the DCP informed P.W. 5 police inspector to go the house of P.W. 1. The cash handed over by the accused to P.W. 2 becomes cognizable offence under the provisions of the P.C. Act. Immediately, P.W. 5 could have informed the police station for making an entry in SHD regarding commission of offence and receipt of the complaint at 8.30 p.m., but he has seized the cash at 8.30 p.m. and thereafter he went to the police station and registered FIR only after 9.15 p.m. by showing the name of the accused. Therefore, when the accused was not present on the spot and the chit left by him along with the cash was not handed over to P.W. 5, then it was the case required for preliminary enquiry before registering the FIR.
Even otherwise, if it is a definite case that the accused came and gave money as it is cognizable offence, then registering FIR is mandatory and then the investigation officer could have seized the cash under the panchanama, but P.W. 5 seized the cash and started investigation prior to the registering the FIR. Therefore, the very foundation of the prosecution commencing the investigation and thereafter registering the FIR vitiates the entire investigation and proceedings.
That apart, P.W. 3 who is the colleague of P.W. 1, definitely used to support P.W. 1 and he has not seen the accused. The prosecution tried to connect the accused with the crime on the ground that the accused had a case before the P.W. 4-Assistant Commissioner and this P.W. 1 being joint commissioner compounded the offence and they received the tax amount from the accused. Such being the case, the work of the accused with P.W. 1 or P.W. 4 has been completed. The question of the accused bribing the complainant after completion of work cannot be acceptable as there is no working pending with P.W. 1.
When the accused came to the house of P.W. 1 and at the same time, P.W. 3 might have come to the house and witnessed the cash left by the accused. Then there is every chance of P.W. 1 or P.W. 2 informing the police for registering the case. Otherwise, how the accused could come to the house of P.W. 1, who had given the address to the accused in order to bring money. As rightly contended by the learned counsel for the appellant, the accused might be the victim and P.W. 1 might have demanded money for having done favourable work to the accused. Therefore, when there are two views are possible, one, the accused might brought the money for bribing P.W. 1 for having done his work and compounding the offence, or second, P.W. 1 might have demanded bribe from the accused for completion of the work of the accused by compounding the case and then the amount brought by the accused was witnessed by P.W. 3. In order to avoid filing of the complaint by the accused before the Lokayuktha police, they have not touched the same and on the other hand, P.W. 1 lodged the complaint to the local police against the accused. If two views are possible, the view which is favourable to the accused shall be accepted.
That apart, suppressing the chit left on the spot, mentioning the phone number and name of the accused by the prosecution witnesses creates serious doubt in the mind of the Court. In addition, no call detail records are collected and produced to show as to whether the accused telephoned P.W. 1 or contacted P.Ws. 1 or 4 through his mobile phone, prior to the alleged incident or whether the police or P.W. 1 tried to contact the accused through mobile phone, are not forthcoming. Therefore, the benefit of doubt shall be extended to the accused.
The trial Court has committed an error in accepting the evidence of the prosecution witnesses and it has ignored the total serious lapse on the part of investigation officer, commencement of investigation without registering the FIR, which was fatal to the prosecution case. Therefore, the judgment of conviction and sentence passed by the trial Court is liable to be set aside.
The judgment of conviction and sentence passed by Special Judge, Prevention of Corruption Act, Benglauru Urban District is hereby set aside - The appellant is acquitted of the offence punishable under Section 12 of P.C. Act and his bail bond stands cancelled - The criminal appeal is allowed.
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2023 (6) TMI 536
Dishonour of Cheque - Insufficient Funds - issuance of cheque for investment or repayment of loan - inadvertent mention of names in the cheque - HELD THAT:- The fact that the name of Manish Bhawani was inadvertently been mentioned is evident from the fact that the name of Tejal V. Bhawani was mentioned on the last page and was to be executed by Vipul Bhawani and Tejal Bhavani. Thus, the Defendants’ contention that the letter has been fraudulently altered by the Plaintiff is patently false. Most importantly the said letter also refers to the said cheques in Annexure A as being issued for repayment of loan.
The defences raised by the Defendants are really frivolous and/or vexatious. Even Exhibit C to the Affidavit-in- Reply which the Defendants contend is the agreement between the parties makes reference to the cheques set out in Annexure A thereto as being repayment of loan and not investment. Thus, it is clear that the Defendants at all times had agreed to treat the said cheques as being repayment towards loans and not investments. Additionally, as has been held in the case of MOTILAL LAXMICHAND SALECHA, HUF VERSUS M/S. MOUR MARBLES INDUSTRIES PVT. LTD. & ORS. [2018 (4) TMI 1950 - BOMBAY HIGH COURT] that once a party issues a cheque for repayment of a loan, then the liability under the loan is substituted by the liability to honor the cheque and in a sense the original liability to pay the loan is discharged by means of execution of cheque. And in the event such cheque is not honored, a new liability arises under the provisions of the Negotiable Instruments Act.
In the present case, the Defendants have not denied issuance of the said cheques but have only attempted to contend that the same were for return of investments and not loans. That argument is not open to the Plaintiff anymore in view of the ratio laid down in the case of Motilal Laxmichand Salecha HUF. Thus even on merit the Defendants’ contentions are untainable and devoid of merit.
Since there was no contract as regards the rate at which the interest was to be charged on the said amount of Rs. 1,47,64,000/-, it would be justifiable to apply the interest at 12% per annum from 31st December, 2019, the date on which the cheques drawn by the Defendants in favour of the Plaintiff were payable.
Defendants to pay the Plaintiff sum of Rs. 1,47,64,000/- along with interest at 9% per annum on the sum of Rs. 1,47,64,000/- from 31st December, 2019 till realization - suit decreed.
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