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Indian Laws - Case Laws
Showing 81 to 100 of 747 Records
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2023 (11) TMI 1117
Dishonour of Cheque - lack of territorial jurisdiction to try the case - bone of contention by the petitioners is that the complainant who was initially maintaining his account in Nanganallur Branch of Indusind Bank, had given a request on 12/04/2022 to transfer his account to Kilpauk Branch - HELD THAT:- At the outset it has to be recorded that, the provisions of Negotiable Instruments Act, 1881 empowers the Magistrate to try complaints under Section 138 of NI Act summarily. Therefore, the trial Court, which has taken cognizance of the complaint and proceeded to try as summary trial, is well within the law and Clause (m) of Section 461 of Cr.P.C will not apply to the facts of this case - At the most, it could be error of taking cognizance of a complaint under Section 190 (1)(a) of Cr.P.C and proceeding thereon. Such irregularity will not vitiate the trial.
Whether the trial Court has assumed territorial jurisdiction, which is not vested on it? - HELD THAT:- Having given request for transfer to Kilpauk Branch and presenting the cheque at Kilpauk Branch, the complaint is filed before Metroplitan Magistrate (FTC-1) Egmore, which deemed to have territorial jurisdiction. The petitioners on receipt of the summons from the Court had participated in the trial cross examined the complainant and also marshalled their witnesses. At the fag end of the trial, he had filed the petition to dismiss the complaint on the ground of lack of jurisdiction. In view of this Court, the request for transfer of his account to Kilpauk Branch made by the complainant on 12/04/2022, which is prior to the presentation of the cheques and subsequent presentation of the cheques at Kilpauk branch saves the complaint from being vitiated. The irregularity what so ever had not caused prejudice to either side, the petition filed after examining the witnesses and at the fag end of the trial is another factor which desists this court to exercise its power under Section 482 Cr.P.C.
In view of the peculiarity of the facts in this case, a strict interpretation of the explanation to Section 142 of Negotiable Instruments Act will be against the spirit of the legislative intend. The trial Court had considered the law and facts, balancing the interest of either side with reasoning had dismissed the petition. On appreciation of law and facts, which are unique to the present case, this Court hold that the order of the trial Court is well based on law and fact and to be confirmed.
Petition dismissed.
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2023 (11) TMI 1116
Dishonour of Cheque - validity of acquittal of accused - seeking reversal of conviction imposed - HELD THAT:- The respondent did not refuse the case of the appellant in his chief examination and he took defence stating that the case was filed with other ulterior motive to deny payment of sales commission which was allegedly due to him.
The respondent, in his cross-examination, has admitted that the purchase orders and other defence documents of the respondent did not contain any signatures, which was not credible enough to prove that the respondent has no liability with the appellant. The respondent has admitted in his cross examination, the modus operandi followed by Ex.P.5 to Ex.P.10 and Ex.P.18 to Ex.P.21 which are invoices and stock transfer challans - the defence raised by the respondent also fails to ground for the reasons discussed.
Hence, this Court has no hesitation to hold that in view of the discussion in the preceding paragraphs, the appellant is entitled for statutory presumption and in the absence of any positive evidence much less any evidence to rebut the statutory presumption by the accused, the charge under Section 138 of N.I. Act stands proved and hence, the reasoning rendered by the lower Appellate Court stands vacated and the same is set aside - this Court holds that the appellant has produced sufficient material in support of the charge and the respondent has not let in any positive evidence to rebut the presumption. Consequently, the conviction and sentence passed by the trial Court is hereby restored.
Appeal allowed.
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2023 (11) TMI 1115
Dishonour of Cheque - conviction of accused - settlement arrived at between the parties - compounding of the case - HELD THAT:- Having taken note of the fact that the petitioner accused and the complainant-respondent have settled the matter, the complainant has received the entire amount of cheques and the complainant has no objection in compounding the offence, therefore, this Court sees no impediment in accepting the prayer made on behalf of the accused-petitioner for compounding of offence while exercising power under Section 147 of the Act as well as in terms of guidelines issued by the Hon’ble Apex Court in DAMODAR S. PRABHU VERSUS SAYED BABALAL H. [2010 (5) TMI 380 - SUPREME COURT], wherein the Hon’ble Apex Court has held since Section 147 was inserted by way of an amendment to a special law, the same will override the effect of Section 320(9) of the CrPC, especially keeping in mind that Section 147 carries a non obstante clause.
In K. SUBRAMANIAN VERSUS R. RAJATHI REP. BY P.O.A.P. KALIAPPAN [2009 (11) TMI 1013 - SUPREME COURT], it has been held by the Hon’ble Apex Court that in view of the provisions contained in Section 147 of the Act read with Section 320 of Cr.P.C., compromise arrived at can be accepted even after recording of the judgment of conviction.
Since, in the instant case, the petitioner-accused after being convicted under Section 138 of the Act, has compromised the matter with the complainant and has paid the entire amount of cheques to the complainant, prayer for compounding the offence can be accepted in terms of the aforesaid judgments passed by the Hon’ble Apex Court.
The application is allowed and matter is ordered to be compounded.
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2023 (11) TMI 1066
Dishonour of Cheque - Oreder of conviction and sentence of accused - insufficient funds - seizure of account - payment stopped by Court order - payment stopped by drawer - evidence led by the petitioner-accused regarding the reason behind the dishonour of cheque or not - rebuttal of presumption - seeking dismissal of all the revision petitions - HELD THAT:- It is in the light of the legal position that it is required to be seen that whether accused has been able to probabilise his defence. Here itself, it may be noted that the accused is not required to prove his defence on the standard of proof ‘beyond reasonable doubt’ and rather, he is simply required to probabilise his defence. The presumption under Section 139 of the Act can be rebutted even by evidence led by the complainant; and it is not required for the defence to lead evidence to rebut presumption, as has been held in PAWAN KUMAR VERSUS SUNIL KUMAR [2016 (9) TMI 1663 - PUNJAB AND HARYANA HIGH COURT] by this court and also by the Hon’ble Supreme Court in SHIV KUMAR VERSUS RAMAVTAR AGARWAL [2020 (2) TMI 1584 - SUPREME COURT].
Contention of ld. counsel for the petitioner is that in the present case also, the cheques in question had been given to the complainant in January/February 2015 as per his Statement. The cheques were payable during June to September 2015, but before the cheques became payable, the account of the petitioner was seized on 10.03.2015 as per Ex.CW2/3. As per the contention, petitioner was left with no control over his bank account either to deposit the funds or to make arrangement with the bank by entering into any agreement with the Bank and that act of attachment of the bank account was not the voluntary act on the part of the petitioner and so, he cannot be held liable - Neither at the time of handing over the cheques nor at the time of seizure nor at the time when the payments became due under the cheque, the petitioner had the sufficient amount in his account. It is not the defence of the petitioner that he wanted to make arrangement with his bank so as to honour the cheques.
Thus, it is held that simply because drawer of the cheque is unable to pay the cheque amount, due to the fact that account stood freezed cannot be the reason to exonerate the liability of the accused-petitioner.
In present case, as per trial court record, the accused was produced in the Court of ld. JMIC, Gurgaon for the first time on 23.12.2015 pursuant to the production warrants issued for him. There is nothing on record to suggest that at any point of time, petitioner-accused ever pleaded before the Court that though he had not received the legal notice, but he was ready to make payment of the cheque amount or that he be allowed to make necessary arrangement with the Bank so as to make payment of the cheque amount. No attempt appears to have been made on the part of the accused to move appropriate application before the concerned Court for getting his account released. In fact, the seizure of the account by the Court in the criminal case came as a boon for the petitioner because he factually did not have any amount in his account at any point of time so as to honour the cheque and on account of seizure of the account, he got the excuse to plead before the Court that his account has been seized.
The last contention raised on behalf of the petitioner is that cheques had been misused as these were issued as a security cheque. The contention is again without any merit as it has been specifically testified by CW1 – complainant that all the particulars in the cheques were filled in by the accused himself. Even if it is presumed for the sake of arguments that cheques were issued as a security, the dishonour thereof will still attract Section 138 of the NI Act - In SHALINI ENTERPRISE AND ORS. VERSUS INDIABULLS FINANCIAL SERVICES LTD. [2012 (9) TMI 1213 - PUNJAB AND HARYANA HIGH COURT], similar plea of security cheque was taken. It was held by this Court held that the argument of the learned counsel for the petitioner that on dishonouring of a security cheque no offence punishable under section 138 of the Negotiable Instruments Act is made out.
This court finds no merit in any of these revisions. Same are dismissed.
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2023 (11) TMI 1023
Suit for recovery along with an interest at the rate of 12% per annum from the date of the suit till the date of the decree and thereafter, at the same rate till the date of its realisation - liable to pay the dues of Sheela Venugopal from the estate inherited by them - HELD THAT:- In the instant case, the court did not take up the risk of doing the job of comparative analysis of the disputed signature by itself. Instead they were sent to expert analysis and hence there is no harm in recording the finding of the expert as the first step. But accepting the findings of the expert is the second part of the exercise. Usually, there can not be any reason to disregard the opinion of the expert, unless there is any patent defect or irregularity is seen to be present in the analysis or established so by the defendants. The first defendant has opted to give a selective acceptance to the part of the report which states that the signature of the first defendant in Ex.P3 did not tally with his admitted signatures - the defendants did not establish anything adverse to the acceptance of the expert's report.
The promissory note does not contain any other particulars as to the rate of interest. So it has to be presumed that the loan transaction did not have any term as to interest. If the promissory note is a created one, nothing could have prevented the plaintiff from filling up the rate of interest and particulars of witnesses as per her whims - Since the executant of the promissory note is no more, the plaintiff can prove the genuineness of the promissory note only by proving the ancillary facts attached to it. As stated already, the first defendant did not deny their acquaintance with the plaintiff. As per the contention of the plaintiff, the loan amount has been given to Sheela Venugopal on several occasions and it was not an one-time payment. After the demise of Sheela Venugopal, the 1st defendant initiated some negotiations with the plaintiff and even according to the 1st defendant, it was some good intention of purchasing peace, but the plaintiff demanded huge sum and hence it did not fructify.
Even though the suit promissory note has been executed for Rs. 2.50 crores, from the legal notice sent by the plaintiff and her oral evidence, she has made it clear that the remaining due was only Rs. 2,18,50,000/-. In such case, the legal enforcement of the suit promissory note can be limited to a sum of Rs. 2,18,50,000/-. though Sheela Venugopal had executed the promissory note for Rs. 2.50 crores - the promissory note did not contain any terms for interest, and hence, the plaintiff is not entitled to claim any interest. In view of the above stated reasons, the plaintiff is entitled to get a decree for recovery of a sum of Rs. 2,18,50,000/-only, from the defendants as against the assets inherited by them from the deceased Sheela Venugopal. Hence, issue No. 5 is thus answered.
The suit is partly decreed with cost and the plaintiff is entitled to get a decree for recovery of a sum of Rs. 2,18,50,000/- only from the defendants to be payable from the assets of the deceased Sheela Venugopal and to that extent to which the defendants are jointly and severally liable to pay as inherited by them.
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2023 (11) TMI 881
Acquiring of assets disproportionate to known source of income - public servant - HELD THAT:- It is a settled preposition of law that in case of disproportionate assets acquired by the Public Servant, the initial burden is on the prosecution to prove objectively the property found in possession of the accused were disproportionate to his known sources of income.
After meticulous examination, this Court able to find that, if at all any benefit in error of assessment regarding the value of assets acquired during the check period to be given, it can only be to a tune of Rs. 1,99,260/- rounded off to Rs. 2 lakhs which is in respect of Architect fees and the value of household articles claimed to be received as gift. Even, if concession of Rs. 2 lakhs is given to the value of assets acquired during check period, the disproportionality will be reduced to only marginally and not to the extend to fall outside the scope of the offence under section 13(1)(e) of the P.C Act or Section 109 r/w 13(1)(e) of P.C Act.
Thus, it is evident that the deceased first accused being a Public Servant had acquired wealth above 400% of his known source of income. From undeclared source, the properties been acquired by the public servant (A1) in his name and in the name of his wife (A-2) also in the name of his minor children. A-2 have lend her name for purchasing the property through source undeclared. Therefore, the trial Court judgement of conviction dated 15/11/2000 is hereby confirmed.
The offence being acquiring wealth by a public servant beyond his known source of income and A-2 for aiding the public servant, had been sentenced for one year R.I being the minimum sentence prescribed under the law. So there cannot be further reduction of sentence. In such circumstances, the appellant/A2 has to be sentenced to undergo atleast the minimum sentence which is one year. Accordingly, the judgment of the trial Court in Special stands confirmed.
The trial Court is directed to secure the appellant/accused-2 and commit her to the prison to undergo the remaining period of sentence. Any period of imprisonment if already undergone by the accused shall be set off under Section 428 of Cr.P.C. - Appeal dismissed.
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2023 (11) TMI 880
Dishonour of Cheque - conviction of appellant - Seeking acquittal from the charge under Section 138 of N.I. Act - HELD THAT:- From perusal of the record, it reveals that the statement of the complainant Jagdish Gupta (PW-1) is well supported by the cheque (Ex.P-1), notice (Ex.P-2 and P-3), postal receipt (Ex.P-4), letter (Ex.P-5). Applicant did not examined any witness before the trial Court and he did not reply the notice (Ex.P-2 and P-3), therefore, there is no reason to disbelieve the statement of Jagdish Gupta (PW-1) and the documentary evidence available on record, therefore, on the basis of the aforesaid evidence, the trial Court has rightly held that the applicant has committed offence under Section 138 of N.I. Act.
On perusal of the record, the submission of the learned counsel for the applicant appears to be just and proper. Hence, finding force in the contention raised by the learned counsel for the applicant and the fact that the applicant is facing trial since 2014 i.e. for a period of almost 09 years and has already undergone two months jail incarceration, this Court finds it appropriate to partly allow this revision petition by affirming the conviction of the applicant, however, reducing his jail sentence to the period already undergone.
This revision petition is partly allowed by maintaining the conviction, but reducing the jail sentence to the period already undergone by the applicant. Since the applicant is already on bail, his bail and surety bonds stand discharged.
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2023 (11) TMI 879
Dishonour of Cheque - rebuttal of presumption u/s 139 of NI Act - HELD THAT:- While exercising the powers under Section 482 Cr.P.C. and from perusal of the complaint under Section 138 Negotiable Instruments, Act, prima facie case is made out against the applicant herein in view of the presumption under Section 139 Negotiable Instruments, Act and the conditions of Section 138 Negotiable Instruments, Act are satisfied, therefore, there is no ground for interfering in the summoning order passed by the learned Magistrate, hence, the instant application is devoid of merit and is hereby dismissed.
Since, the instant complaint case is pending since 2019, learned Magistrate is directed to proceed with the matter in accordance with law and particularly, in accordance with the provisions of Section 143 of Negotiable Instruments Act and try to conclude the said proceeding, expeditiously.
Application dismissed.
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2023 (11) TMI 878
Allegation against the officials of four public sector oil companies viz. IOCL, HPCL, BPCL and IBP - Respondent Accused were discharged by the CBI Court - Sale of High Speed Diesel (HSD) to various private industries of three States viz. Gujarat, Maharastra and Madhya Pradesh at concessional rates of sales tax - non-compliance with the mandatory requisite permission from the Ministry of Petroleum & Natural Gas - Revenue loss to Government - HELD THAT:- In the case of MOHD. HADI RAJA VERSUS STATE OF BIHAR AND ORS. [1998 (4) TMI 576 - SUPREME COURT], the Apex Court observed that the importance of the public undertaking should not be minimised. It is observed that the government's concern for the smooth functioning of such instrumentality or agency can be well appreciated but on the plain language of Section 197 of the Code of Criminal Procedure, the protection by way of sanction is not available to the officers of the public undertaking because being a juridical person and distinct legal entity such instrumentality stands on a different footing than the government departments.
Here, in the case on hand, the aspect of sanction by the authority concerned would bear not of much importance. The issue is whether C.B.I. had any case to even lodge a prosecution. Admittedly CVC too had not found any case against the accused to grant sanction.
The compilation and circulation by OCC on 08.07.1991, of the Guidelines for Release of Petroleum Products and Lubricants to Direct Consumers have not been denied, which suggests that the same was in force and all oil companies were following the guidelines since 1991. The chargesheet has been filed for period between 1997-2000. The guidelines of OCC dated 08.07.1991 had not found any change.
The letter of the OCC dated 04.12.1996 to the under Secretary MoP&NG, New Delhi, for the requirement of HSD/ HF HSD/LSHF and NGL/Naphtha for M/s. Shaynoa Petrochem Ltd. for manufacture of speciality solvent and lubricants, reflects that the TEC was required to evaluate the requirement, and submit the recommendation to MoP&NG and based on the recommendation of the TEC, it was noted that, MoP&NG, may consider to release of HSD/HF-HSD/LSHF for processing use ex-Koyali refinery, while the supply of NGL ex-Hazira was ruled out, as the only possibility was of supplying Naphtha ex-Koyali refinery of IOC - While observing the TEC by the Circular dated 27.03.2002, it was specifically noted by the under Secretary, Government of India that the matter was reviewed by the Ministry and on dismantling of the APM from 01.04.2002, in the circular, it was noted that the price of diesel would be also decontrolled, and under such circumstances, the specific objective and role of the TEC had lost its purpose and relevance, and were informed that the TEC stood dissolved with effect from 01.04.2002.
This Court finds that the Special Judge, CBI Court No. 2 Ahmedabad has not committed any error in discharging the accused by allowing their Criminal Revision Applications preferred against the orders of rejection of their discharge applications by orders dated 27.05.2019 below different Exhibits in 36 applications and by the orders dated 13.03.2018 below different Exhibits in 3 applications by the Learned Additional Chief Judicial Magistrate, Special CBI Court No. 1, Ahmedabad in Special Case arising out of FIR RC No. 12(A)-2000-GNR. No sanction has been granted for prosecuting the officers of the oil companies. The assessment made by the Special Judge discharging the accused is consistent with the record.
The orders passed by the learned Special Judge, CBI Court No. 2, Ahmedabad allowing the Revision Applications and discharging the accused – respondents herein are just and correct, the findings are in accordance to the documents on record, the accused are rightly discharged, as there are no sufficient grounds for proceedings against them - Application dismissed.
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2023 (11) TMI 814
Condonation of delay of around 479 days in presentation of the appeal - whether the first respondent had shown sufficient cause for which the appeal could not be presented within the prescribed period of limitation? - HELD THAT:- The High Court’s decision to condone the delay on account of the first respondent’s inability to present the appeal within time, does not suffer from any error warranting interference.
STATE OF NAGALAND VERSUS LIPOK AO [2005 (4) TMI 321 - SUPREME COURT] arose out of an appeal where this Court condoned the State’s delay of 57 days in applying for grant of leave to appeal before the high court against acquittal of certain accused persons. This Court observed that in cases where substantial justice and a technical approach were pitted against each other, a pragmatic approach should be taken with the former being preferred. Further, this Court noted that what counted was indeed the sufficiency of the cause of delay, and not the length, where the shortness of delay would be considered when using extraordinary discretion to condone the same.
In BALWANT SINGH VERSUS JAGDISH SINGH [2010 (7) TMI 556 - SUPREME COURT], this Court refused to condone the delay of 778 days in bringing on record the legal heirs of the petitioner therein through an application filed under Order XXII Rule 9 of the Code of Civil Procedure, 1908. It was observed that though sufficient cause should be construed in a liberal manner, the same could not be equated with doing injustice to the other party. For sufficient cause to receive liberal treatment, the same must fall within reasonable time and through proper conduct of the concerned party. The Court emphasised that for such an application for condonation to be seen in a positive light, the same should be bona fide, based on true and plausible explanations, and should reflect the normal conduct of a common prudent person.
As the aforementioned judgments have shown, such an exercise of discretion does, at times, call for a liberal and justice-oriented approach by the Courts, where certain leeway could be provided to the State. The hidden forces that are at work in preventing an appeal by the State being presented within the prescribed period of limitation so as not to allow a higher court to pronounce upon the legality and validity of an order of a lower court and thereby secure unholy gains, can hardly be ignored. Impediments in the working of the grand scheme of governmental functions have to be removed by taking a pragmatic view on balancing of the competing interests.
The special circumstances obtaining here that the impugned order reasonably condones the delay caused in presenting the appeal by the first respondent before the High Court, the present appeal is, accordingly, dismissed.
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2023 (11) TMI 780
Seeking grant of bail - Smuggling - supply of Ketazee 500 injections - recovery of Pseudoephedrine Hydrochloride, which is a controlled substance under the NDPS Act, and Ketamine Hydrochlroide, which is psychotropic substance under the NDPS Act - applicability of Section 37 of the NDPS Act - HELD THAT:- In N.C. Chellathambi v. N.C.B. [2005 (4) TMI 647 - DELHI HIGH COURT], this court granted bail to the applicant in a case of recovery of Ephedrine, a controlled substance.
In view of the recovery of Pseudoephedrine, which is a controlled substance, this Court is of the opinion that Section 37 of the NDPS Act will not be attracted in the present case as the allegations with respect to the present applicant are covered under Section 25A of the NDPS Act.
In view of the facts and circumstances of the present case, the applicant is admitted to bail upon his furnishing a personal bond in the sum of Rs. 1,00,000/- along with two sureties of the like amount, to the satisfaction of the Learned Trial Court/Link Court, further subject to the conditions imposed - application allowed.
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2023 (11) TMI 747
Dishonour of Cheque - insufficient funds - clubbing of three cheques in a single complaint - Pre-summoning evidence - HELD THAT:- Since it is settled law that the NI Act and the provisions therein, including that of Section 138 NI Act are pertaining to a Special Act, they have to be mandatorily complied with.
As per the facts involved, though the first cheque issued on 15.12.2016 was dishonoured on 23.12.2016 and the Legal Notice dated 17.04.2017 qua it was barred by limitation, however, admittedly, since all the subsequent three cheques issued on 15.01.2017, 15.02.2017 and 15.03.2017 were dishonoured thereafter only on 24.03.2017, the same Legal Notice dated 17.04.2017 qua them was well within the prescribed statutory period. The said Legal Notice being valid, the subject complaint qua the said three cheques also being well within the statutory time period, is also very much valid.
In the present case, as the Legal Notice dated 17.04.2017 issued by the respondent specifically entails the specific details qua the dates and amounts of all the respective four cheques involved, separately, there can be no dispute qua maintainability of the subject complaint qua them before the learned MM. The said Legal Notice dated 17.04.2017 issued by the respondent is to be read as a whole and not in piecemeal - as neither there is any omnibus demand made by the respondent in the Legal Notice issued within the stipulated time period, nor there is any illegal amount demanded by him, in the facts of the present case, the subject complaint is per se maintainable in the eyes of law. It is also worth noting that the learned MM vide order dated 30.05.2017 issued summons to the petitioners and then rightly framed notice under Section 251 CrPC dated 25.03.2019 to the petitioner no. 2 qua the said three cheques only.
Not only that, as the pre-summoning evidence led by the respondent before the learned MM is also based only on the three subsequent cheques dishonoured on 24.03.2017, there is no occasion for this Court to interfere with the proceedings before the learned MM by allowing the present petition.
The present petition alongwith the applications, if any, is dismissed and in view of the conduct of the petitioners, with a token costs of Rs. 25,000/- (Rupees Twenty Five Thousand Only) to be paid to the respondent within a period of two weeks.
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2023 (11) TMI 746
Deposit of interim compensation under Section 143-A(2) of the Negotiable Instruments Act, 1881 - HELD THAT:- Perused the Section 143-A of the Negotiable Instruments (Amendment) Act, 2018 (20 of 2018). As per said Amendment Act, trial Court is vested with power to direct accused person to deposit interim compensation not exceeding 20% of the amount of the cheque. Section 143-A (3) provides that interim compensation shall be paid within sixty days from the date of order under Sub-section (1) and Court may also extend the said period if sufficient cause is being shown by the drawer of the cheque. Section 143(4) lays down that if drawer of cheque is acquitted, Court shall direct the complainant to repay to the drawer the amount of interim compensation with interest at the bank rate as published by the Reserve Bank of India, prevalent at the beginning of the relevant financial years, within sixty days from the date of the order.
Since, application of Section 143-A of the Negotiable Instruments (Amendment) Act, 2018 (20 of 2018) was held to be prospective in nature and in present case complaint case was filed on 25.08.2018 and amendment was brought into force on 01.09.2018, therefore, trial Court has committed an error in directing payment of interim compensation under Section 143-A of the Negotiable Instruments (Amendment) Act, 2018 (20 of 2018).
Petition allowed.
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2023 (11) TMI 745
Dishonour of Cheque - different cause of action for different seven cheques - main ground for impugning the orders is that a single complaint could not be filed for seven cheques which are stated to have been issued by the petitioner/accused as the cause of action for each cheque is different - HELD THAT:- The cheques purportedly issued by the accused form part of a single transaction or different one cannot be finally determined by this Court at this stage though the complainant in the complaint mentions of issuance of cheques in pursuance to the transactions between him and the accused. The provisions of Section 219 Cr.P.C would apply in the case in hand so as to knock out the case of the complainant wherein seven cheques have been mentioned to have been issued and get dishonoured cannot be adjudicated upon in the present petition. The Court is of the view that the revisional court has erred in stating that the facts disclosed in the complaint constitute one offence and that Section 219 Cr.P.C has no application in the present case as it is a matter of trial whether the cheques in question could be clubbed in a single complaint.
The Court will not entertain the petition under Section 482 Cr.P.C unless there are exceptional circumstances which the court considers that in case the proceedings before the trial court are allowed to continue, the same shall be abuse of process of law. The Court in exercise of powers vested under Section 482 Cr.P.C cannot determine the disputed questions of fact which may be raised by the party in the criminal proceedings.
It is a matter of trial that the argument raised by the petitioner herein carries weight or not cannot be determined in the present petition.
Petition disposed off.
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2023 (11) TMI 744
Dishonour of Cheque - seeking permission to compound the offence - Section 147 of the Negotiable Instruments Act, 1881 - HELD THAT:- The offence under Section 138 of the NI Act can be compounded at any stage and overrides the effect of Section 320(9) of the Cr.P.C. (which otherwise provides that no offence shall be compounded except as provided by the Section), in view of the fact that Section 147 of the NI Act was inserted by way of an amendment to a special law and the Section commences with a non obstante clause. Consequently, in light of the compromise Petition filed before this Court, enumerating the terms of consent and the submissions of the Learned Counsel for the parties that the settlement was arrived at between the parties without duress on either party from any quarter, the compromise Petition is accepted and taken on record. The compounding of the offence is allowed. The order of conviction handed out to the Petitioners is set aside. The Petitioners are consequently acquitted of the offence under Section 138 of the NI Act.
Learned Senior Counsel for the Petitioners submits that in terms of the Order of this Court, dated 24-10-2019, an amount of ₹ 5,00,000/- (Rupees five lakhs) only, had been deposited before the Learned Trial Court. That, in view of the compromise arrived at by the parties, and as agreed to by the parties before this Court today, the Petitioners be permitted to withdraw the deposited amount of ₹ 5,00,000/- (Rupees five lakhs) only.
The prayer of Learned Senior Counsel for the Petitioners is allowed. He is permitted to withdraw the amount of ₹ 5,00,000/- (Rupees five lakhs) only, deposited - Petition disposed off.
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2023 (11) TMI 716
Dishonour of Cheque - insufficient funds - legally enforceable debt or not - accused denied the incriminating circumstances appearing in the evidence against him in the questioning under Section 313 of the Code of Criminal Procedure - HELD THAT:- In the case at hand, admittedly, the accused was a Head Constable in the Kerala Police service. He has alleged that for the business purpose of his brother (DW2), he gave signed blank cheques to DW2, who had business transactions with Anilkumar. The said Anilkumar allegedly trespassed into DW2's shop and stole the cheques. Instead of complaining to the Police, DW2 issued Ext D1 lawyer notice to Anilkumar threatening to initiate proceedings. But no action is seen taken. It is making use of one of the stolen cheques, the complainant launched the prosecution. Therefore, there is no legally enforceable debt payable by the revision petitioner/accused to the first respondent/complainant.
The courts below, after appreciating the materials on record, have concurrently concluded that the defence set up by the accused is highly improbable, especially taking into account the fact that he was a Police officer. If at all his cheque was stolen, he would have certainly initiated criminal proceedings. Instead, he remained silent and made his brother(DW2) to issue a lawyer notice to the said Anilkumar.
There are no error, illegality or impropriety in the conclusions arrived at by the courts below to take a contrary view - the conviction and sentence passed by the courts below is confirmed - The revision petition is dismissed.
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2023 (11) TMI 672
Constitutional validity of the Tamil Nadu Prohibition of Online Gambling and Regulation of Online Games Act, 2022 - HELD THAT:- The petitioners are challenging the Act of 2022, namely the Tamil Nadu Prohibition of Online Gambling and Regulation of Online Games Act, 2022. The impugned Act is enacted in the backdrop of the Tamil Nadu Gaming and Police Laws (Amendment) Act, 2021 (hereinafter referred to as “the Amendment Act of 2021”), which had sought to ban online games such as “rummy” and “poker” played with stakes or money. The said Amendment Act of 2021 was struck down in its entirety by this Court and was declared as ultra vires the Constitution of India under the detailed judgment dated 03.08.2021 in the case of Junglee Games [2021 (8) TMI 1377 - MADRAS HIGH COURT].
The intention and object of promulgating the impugned legislation, no doubt, appears to be laudable and bonafide. However, mere intention and bonafides would not be sufficient to uphold the legislation. The legislation has to withstand the test of legislative competence and should be free from manifest arbitrariness. The same will also have to be viewed on the premise of the rights of the parties being trampled or otherwise - The State is empowered to legislate in respect of the Entries in List II of the VII Schedule. Entry 34 of the State List includes “betting and gambling”. The State certainly has the authority to legislate in respect of betting and gambling. This Entry 34 of the State List viz, “betting and gambling” was the subject matter of consideration before the Apex Court in catena of cases.
In the present case, the platform provider or the game provider is charging a fixed sum and is not claiming shares in the profits. If the game providers have been claiming shares in the profits, then that would be a different situation altogether, but here, a fixed percentage of sum is charged - The State has relied upon its power to legislate in view of Entry 1 and Entry 6 of the State List. Entry 1 of the State List deals with public order and Entry 6 of the State List deals with public health, sanitation, hospitals and dispensaries.
The concern expressed by the State about public health of its citizens is but natural. The State has to take care of the public health of its citizens. Section 5 of the impugned Act authorises the authority, by notification and with the previous approval of the Government, to make regulations to carry out the provisions of the Act namely, time limit, monetary limit, age restriction or such other restrictions in regard to playing of online games. The State certainly has the power to regulate online games of skill. It can control and regulate the games of skill. The State can provide for the time limit, that the game may not be played after a particular time and it would have the necessary infrastructure and expertise to take all the measures that the games would not be played within the State after a particular time. It can also regulate the age restriction and other aspects. The same would be within the competence of the State.
The impugned Act, in its entirety, need not be held to be ultra vires. It is held that the State is competent to legislate to the extent of prohibiting online gambling, i.e., games of chance, at the same time, it has got the authority to regulate online games of skill. The definition of “online gambling” under Section 2(i) of the impugned Act shall be read as restricted to “games of chance” and not games involving skill. Section 2(l)(iv) of the impugned Act would not be entirely valid. The games of rummy and poker are games of card, but are games of skill. Section 2(l)(iv) is being read down, to mean, it excludes games of skill viz., rummy and poker - Having held that the State has got the authority to legislate on online games of chance, as gambling would be betting on the games of chance, it is not necessary to declare Sections 7, 8 and 9 of the impugned Act as ultra vires.
The prayer to declare the entire impugned Act of 2022 as ultra vires is negated. The Schedule of the impugned Act, including the games of rummy and poker, are set aside. Sections 2(i) and 2(l)(iv) of the impugned Act shall be read as restricted to games of chance and not games involving skill, viz., rummy and poker.
Petition allowed in part.
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2023 (11) TMI 671
Dishonour of Cheque - discharge of legally enforceable debt or not - rebuttal of presumption u/s 139 of NI Act - HELD THAT:- As the mode of advancing the amount to the revision petitioner was not a circumstance appearing in evidence against the revision petitioner, absence of a question in the 313 examination regarding the mode of payment will not in any way vitiate the trial.
The revision petitioner if wanted to rebut the presumption under Section 139 of the N.I Act, he should have adduced cogent evidence for disproving the entry dated 27.09.2006 in Ext.P6 document. It is true that, the revision petitioner can even rely on the materials submitted by the complainant/1st respondent, in order to raise a probable defence which creates doubt about the existence of a legally enforceable debt or liability, without adducing separate evidence of his own. In the case on hand, the materials and evidence on record adduced from the side of the 1st respondent are not capable of rebutting the presumption, in favour of the revision petitioner even by preponderance of probabilities. So he was bound to adduce evidence of his own so as to rebut the presumption but it was not done.
Since the presumption stands unrebutted, this Court has to hold that, the appellate court rightly upheld the conviction of the revision petitioner under Section 138 of the N.I Act, and sentenced him to undergo imprisonment till rising of the court and to pay fine of Rs. 4 lakh and in default to undergo simple imprisonment for two months, with a further direction that if the fine amount is realised, it will be paid to the 1st respondent as compensation under Section 357(1) of Cr.P.C.
The revision petition is dismissed, upholding the impugned judgment in Crl. Appeal No. 213 of 2009. The revision petitioner is directed to surrender before the trial court on or before 28.11.2023 to receive the sentence and to pay the fine amount. In default, the trial court has to issue arrest warrant against the revision petitioner for executing the sentence.
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2023 (11) TMI 670
Condonation of delay in filing review petitions - whether the petitioners have established sufficient cause for not preferring the review petitions within the statutory period? - ground for the exercise of the discretion in condoning the delay, established or not - HELD THAT:- The expression “sufficient cause” contained in Section 5 of the Limitation Act is elastic enough to yield different results depending upon the circumstances of the case. The criteria to be applied in condoning the delay in different claims may be different. For example, in the case of beneficial legislations a liberal interpretation must be given to the expression “sufficient cause” to serve its object. The concept of reasonableness demands that the courts, while taking a liberal approach, must also consider the rights and obligations of both the parties. When a right has accrued in favour of one party due to gross negligence of the other, the Court shall refrain from exercising the discretionary relief. It is a settled legal proposition that law of limitation may harshly affect a particular party but it has to be applied with all its rigour when the Statute mandates so. The Court has no power to extend the period of limitation on equitable grounds.
In Basawaraj [2013 (12) TMI 274 - SUPREME COURT], the Supreme Court held that ‘sufficient cause’ means that the party should not have acted in a negligent manner or there was a want of bona fide on its part in view of the facts and circumstances of a case or it cannot be alleged that the party has not acted diligently or remained inactive. The Supreme Court further held that the applicant must satisfy the court that he was prevented by any “sufficient cause” from prosecuting his case, and unless a satisfactory explanation is furnished, the Court should not allow the application for condonation of delay. The Court has to examine whether the mistake is bona fide or was merely a device to cover an ulterior purpose, the Supreme Court added.
The review petitions have been filed by the power of attorney holder of the petitioners. No materials have been placed before the Court to show that the review petitioners had any inconvenience or difficulty in prosecuting the matter. The power of attorney holder of the review petitioners pleaded that he was suffering from asthmatic complaints. No materials have been produced to explain the delay of 288 days in preferring the review petitions. The claim of the review petitioners lacks bona fides.
Application dismissed.
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2023 (11) TMI 669
Dishonour of Cheque - insufficient funds - discharge of legally enforceable cheque or not - vehicle covered by the hire purchase loan agreement was already seized by the complainant/1st respondent and it was sold out for profit - HELD THAT:- The case of the 1st respondent is that the cheque was issued after seizure and sale of the vehicle, and after adjusting the sale price towards the loan amount. But PW1 admitted that Rs. 57,000/- was already repaid in ten installments and the vehicle was seized and sold, and to his memory, the sale price was Rs. 25,000/-. But he has not produced any scrap of paper to show that the balance amount was calculated as Rs. 1,24,500/-. No notice was seen issued to the revision petitioner intimating the balance due, and asking him to remit that amount. The vehicle was seized and sold in the year 1998. The cheque is dated 06.02.2002. There is nothing to show that in the year 2002, the revision petitioner reached the office of the 1st respondent to issue Ext.P3 cheque. No evidence is there to prove that Ext.P3 cheque was issued towards the balance amount due, after adjusting the sale price.
The conviction and sentence imposed on the revision petitioner under Section 138 of the Negotiable Instruments Act is set aside - Revision petition is allowed.
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