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Indian Laws - High Court - Case Laws
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- 2019 (12) TMI 386
Dishonor of cheque - acquittal of accussed - Respondent No.2/accused failed to discharge the onus in order to rebut the precipice - rebuttable presumptions or not - HELD THAT:- From the record, it is evident that altogether three PWs have been examined who are PW-1, Dilip Kumar, PW-2, Binod Kumar and PW-3, Deepak Kumar. Side by side, prosecution has also exhibited Cheque, Ext-1, copy of Advocate notice, Ext-2, Registered Postal receipt, Ext-3, complaint petition, Ext-4. Nothing has been adduced on behalf of defence/Respondent No.2 - The evidence of PWs-1 and 2 are not at all relevant because of the fact that they are not the persons anyway concerned with the affairs, although, came to the side of the complainant, PW-3. PW-3, during course of examination-in-chief has stated that he gave friendly loan of an amount of ₹ 25 Lacs on an u....... + More
- 2019 (12) TMI 385
Dishonor of Cheque - specimen handwriting on the cheque - application of the petitioner/ accused dismissed for taking his own specimen handwriting for comparison of the same with the writing on the body of the cheque involved the complaint - section 138 of nI Act - HELD THAT:- In the present case, the petitioner has not even disputed his signatures on the cheque. Therefore, the only attempt which is being made by the petitioner is that he wants to prove the nonexistence of the consent of the petitioner qua drawing of the cheque by asserting the fact that body of the cheque was not filled up by the petitioner/ accused. However, it is not even disputed by the petitioner that the cheque which is on the Court file is complete in all respects, containing all the necessary particulars meant for a cheque. Therefore, in considered opinion of this....... + More
- 2019 (12) TMI 384
Whether the writ petitioner could have been given benefit of grant of extraordinary pension under Rule 3 of the U. P. Police (Extraordinary Pension) (First Amendment) Rules, 1975? - HELD THAT:- For the purpose of grant of extraordinary pension under Rule 3 of 1975 Rules, death has to result directly from a fatal situation/contingency faced by the police personnel concerned in the line of duty in a hostile environment akin to the listed category/class. The appellant/writ petitioner’s husband may have died on duty, but his death was due to natural causes and certainly not due to a fatal situation/contingency faced by a police personnel in the line of duty in a hostile environment akin to the listed category/class as specified in Rule 3 of the 1975 Rules. The legislature, in its wisdom, would have simply stated that any death occurring....... + More
- 2019 (12) TMI 221
Waiver of the requirement of pre-deposit under Section 21 of the Recovery of Debts and Bankruptcy Act, 1993 - whether the DRAT was justified in declining the Petitioner‟s prayer for waiver of the pre-deposit? HELD THAT:- A plain reading of the provisions of section 21 of RDB Act indicates that there is an absolute bar on the DRAT entertaining an appeal, unless the pre-deposit is made with the DRAT by the Appellant of 50% of the amount due from such Appellant as determined by the DRT under Section 19 of the RDB Act. The proviso to Section 21 permits the DRAT to reduce the amount of pre-deposit up to 25% of the amount of such debt but not beyond that. In other words, the discretion of the DRAT is only to reduce the amount of pre-deposit from 50% of the amount of debt to 25% of the amount of debt, but not to waive the requirement of pr....... + More
- 2019 (12) TMI 169
Dishonor of cheque - section 138 of NI Act - Permission to examine/cross-examine the complainant - whether in terms of Section 145(2) of the Act, it is mandatory for the applicant, seeking cross-examination of the complainant, to assign reason(s) for recalling/reexamination/ cross-examination of the complainant? HELD THAT:- This court has specifically ruled that the second part of Section 145(2), nowhere talks about assigning reasons in the application for recall/re-examination of a witness, meaning thereby that it is obligatory for the court to recall complainant or its witnesses, if an application is made in that behalf, as such, order passed by learned Court below, rejecting the application of the accused for examination/cross-examination of the complainant is against the provisions of Section 145(2) and deserves to be rectified by thi....... + More
- 2019 (12) TMI 103
Smuggling - Ketamine - contraband item - section 50 of NDPS Act - main ground urged on behalf of petitioner is that the seized material is not ‘Ketamine’ - other allegation that Shivaraj was trained by petitioner is based on statement of co-accused. No other allegation is made by the prosecution against petitioner. HELD THAT:- Admittedly, as per the charge sheet, 17 samples were sent to Central Revenue Controlled Laboratory. The chemical analysis report has shown negative result for presence of ‘Ketamine’. Thus, as on date, the seized material cannot be described as ‘Ketamine’. Section 37 of NDPS Act places an embargo from releasing a person accused of offences punishable for Section 19 or 24 or 27A of the NDPS Act, unless the Public Prosecutor has been given an opportunity to oppose the application and....... + More
- 2019 (12) TMI 102
Dishonor of Cheque - acquittal of accused of charges under Section 138 of the Negotiable Instruments Act 1881 - HELD THAT:- The accused having admitted issuance of cheque and stop payment instructions etc., there is no need to delve into the evidence of this witness. The defence led evidence of four witnesses. DW-1 was an employee of the accused, DW-2 is an employee of the bank from where the son of complainant is supposed to have withdrawn the cash of ₹ 10,000/-. DW-3 is one Arvind Chagan Joshi to whom the computer papers worth ₹ 20,140/- was delivered by Shree Balaji Enterprises and DW-4 is the accused himself. DW-1 confirms having delivered 32 boxes of computer from Shree Balaji Enterprises to Arvind Chagan Joshi, i.e., DW-3. DW-3 is an independent witness who states that on instructions of complainant he received 32 boxes ....... + More
- 2019 (12) TMI 101
Suspension of sentence pending the appeal - grouse of the petitioner-accused is that bare perusal of Section 389 Cr.P.C, nowhere suggests that Appellate Court while considering the application for suspension of sentence, is necessarily required to issue direction to the person in appeal for depositing amount of compensation - HELD THAT:- True, it is that bare perusal of Section 389 of Cr.P.C, which is reproduced hereinabove, nowhere suggests that Appellate Court while considering the application for suspension of sentence cannot order for suspension of sentence awarded by the learned trial Court without calling upon the person seeking suspension of sentence to deposit amount of compensation, if any, awarded by the learned court below. Solely with a view to mitigate the hardship of complainant, especially in proceedings under Section 138 o....... + More
- 2019 (12) TMI 100
Levy of property tax - It is the case of the petitioners that inasmuch as their educational institutions are not housed in buildings owned by the Government or aided or functioning under the financial assistance from the Government, they are denied the benefit of the exemption granted under the Acts - whether the exemption provision under the Acts is discriminatory in its grant of exemption to only such buildings that are used for educational purposes and under the ownership of educational institutions owned by the Government or aided or functioning with the financial assistance from the Government? HELD THAT:- Applying the principles discernible therefrom to the facts in the instant cases, it can be seen that the tax concessions envisaged under the Acts are intended to provide a level playing field for Government/aided educational instit....... + More
- 2019 (12) TMI 99
Appropriate forum for appeal - Whether the appeal against acquittal in prosecution for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881, would lie under Section 378(4) of the Code of Criminal Procedure or would be as per proviso below Section 372 of the Code of Criminal Procedure? HELD THAT:- The right of appeal, being a statutory right, cannot be assumed unless expressly provided by the statute. The right of appeal is created by way of substantive provision in the statute. The Code of Criminal Procedure, though considered as a procedural law, it is a substantive law as far as right of appeal is concerned. For the purpose of trial of the offence under section 138 of the Act of 1881, as per Section 4(2) of the Code, the provisions in the Code are applicable. For the purpose of appeal against the order of con....... + More
- 2019 (12) TMI 60
Dishonor of Cheque - offence punishable under Section 138 of the Negotiable Instruments Act - accused stated that part amount was deposited before learned trial Court, whereas remaining amount as awarded by learned trial Court stands paid - compounding of matter - HELD THAT:- When entire compensation amount has bee agreed to be paid to the complainant, this Court sees no impediment in accepting the prayer made in the instant petition especially in view of power vested in this Court under S.147 of the Act and guidelines laid down by Hon'ble Apex Court in DAMODAR S. PRABHU VERSUS SAYED BABALAL H. [2010 (5) TMI 380 - SUPREME COURT] - Needless to say, Hon'ble Apex Court in judgment (supra) has categorically held that power under S.147 of the Act ibid can be exercised even in those cases, where accused stands convicted. Impugned judgme....... + More
- 2019 (12) TMI 59
Dishonor of Cheque - Suit for recovery of outstanding amount - misreading and misinterpretation of the evidence and material on record or not - HELD THAT:- This Court finds no illegality and infirmity in the impugned judgments and decrees passed by learned Courts below, which otherwise appear to be based upon the proper appreciation of the evidence, be it ocular or documentary adduced on record by the respective parties. This Court is fully satisfied and convinced that both the Courts below have very meticulously dealt with each and every aspect of the matter and there is no scope of interference, whatsoever, in the present matter. Appeal dismissed.
- 2019 (12) TMI 4
Dishonor of Cheque - section 138 of Negotiable Instruments Act - territorial Jurisdiction - transfer of the case to another state - HELD THAT:- It is not in dispute that the plaintiff/appellant had filed his evidence by way of, affidavit and in the affidavit also he had mentioned about the pendency of complaint under Section 138 of the Negotiable Instruments Act against the respondent No.2/defendant. The aforesaid suit was last listed on 11.04.2017 for evidence of the plaintiff and on which date the plaintiff was cross examined by the counsel for the defendant/respondent No.2 in part. Fact remains that when the Gurugram Court transferred the matter vide order dated 29.10.2015, it was to be listed before the District Court, Delhi on 11.01.2016, however, it was not listed on that day. Thereafter, there was no information further to the appe....... + More
- 2019 (12) TMI 3
Whether or not the 7th December, 2015 Order decided the necessary jurisdictional facts which in turn enabled CCI to pass the Impugned Order commencing investigation? HELD THAT:- A bare perusal of the 7th December, 2015 Order demonstrates that it pertains only to general/industry-wide issues relating to the concept of RIO and the law declared therein is intended to be prospective in operation. This is evident from the fact that TDSAT did not deal with the finer and specific issues of discriminatory conduct alleged by NSTPL against Media Pro, Taj and Star in the First TDSAT Petition. In fact, none of the specific reliefs sought against Media Pro, Star and Taj in the First TDSAT Petition were even considered, let alone granted, when passing the TDSAT Order. The 7th December, 2015 Order does not consider, let alone find, that NSTPL is "s....... + More
- 2019 (12) TMI 2
Right to seek information - Raid - whether a party to a case pending in a court can seek copies of documents which form part of the court record under the Right to Information Act, 2005? - interpretation of statute - prevailing of Delhi District Court rules over RTI Act. HELD THAT:- In view of Rule 7 (iv), (v) and (vi) of Delhi District Courts (Right to Information) Rules, 2008, there is exemption from disclosure of information which pertains to judicial proceedings or judicial functions of the court. The application of the respondent seeking a copy of a document which forms part of the judicial record would clearly be exempted from Rule 7 of the aforenoted Rules. In fact the said court where the suit of the respondent is pending has by a judicial order declined to provide the said document to the petitioner. The Delhi District Court rules will prevail - Petition allowed.
- 2019 (11) TMI 1200
Dishonor of Cheque - insufficiency of funds - Accursed seeking permission to lead additional evidence - accused had filed complaint against him (the complainant) and his father for cheating - section 391 and 394 of the Code of Criminal Procedure, 1973 - HELD THAT:- Onus lay upon the accused to dislodge the presumptions that the cheque was drawn for consideration and in discharge of a legally enforceable debt or liability. - Whether the accused succeeded in rebutting the presumptions of law warrants adjudication. However, mere failure to place on record the copy of the reply could not have been construed as a failure to dislodge to the presumption especially when it was the claim of the complainant that the accused had replied the statutory demand notice raising false contentions - The situation which, thus, obtains is that so far as the e....... + More
- 2019 (11) TMI 1153
Dishonor of Cheque - Funds Insufficient and exceeds Arrangement - offence punishable under Section 138 of the Negotiable Instruments Act - petitioner have argued that the petitioner has resigned from directorship of the accused-company w.e.f. 21.01.2016 and the cheques were issued subsequently and therefore, the petitioner is not liable to be prosecuted - it is also argued that the petitioner is not authorized signatory of the cheques and therefore, the petitioner cannot be prosecuted. HELD THAT:- There is no dispute with regard to judgments of the Hon'ble Supreme Court, relied upon by learned counsels for the petitioner, that a non-executive director or a director, who has resigned prior to issuance of the cheque(s), cannot be prosecuted and there should be a specific averment in the complaint that the director was incharge and respo....... + More
- 2019 (11) TMI 1066
Cancellation of bail - smuggling - Sections 23(c), 27A, 28 and 29 of the Narcotic Drugs And Psychotropic Substances Act, 1985 - HELD THAT:- True, the prayer for cancellation of bail granted to the second accused is made not on the ground that he has violated the conditions of bail but on the ground of illegality of the order granting him bail. The allegation against the second accused is that he had booked the flight ticket for the first accused. He had booked the flight ticket for the first accused not at the instance of the first accused but at the instance of one Ashraf @ Sharafudheen. The offence alleged against the second accused is punishable under Section 29 of the Act. Considering the nature of the act allegedly committed by the second accused, there are reasonable grounds for believing that he is not guilty of an offence punishab....... + More
- 2019 (11) TMI 1064
Dishonor of Cheque - discharge of legally recoverable debt - Section 138 of Negotiable Instrument Act - HELD THAT:- The fact remains that the amount was paid by the society on behalf of its individual member to facilitate the transaction in getting their houses constructed by the respondent. Since the individual members of the petitioner society immediately doubted whether the respondent would be able to complete the flats, they did not deposit the amount with the society and thus, the cheques issued by the society got dishonoured - It is not disputed that the society was constituted for the welfare of its members who were interested in getting their houses constructed by the respondent. Therefore, the society played a role only to facilitate its members in getting their houses constructed and the society had no liability as per Section 1....... + More
- 2019 (11) TMI 1062
Appealable order or not - enforcement of consent arbitral award - foreign award - whether the impugned order is under the Code of Civil Procedure to make it appealable, or it is under the Act of 1996? - HELD THAT:- The impugned order is passed in execution of an arbitral award. The execution of the award is governed by Section 36 of the Arbitration Act. According to the Appellants, Section 36 of the Arbitration Act stipulates that the award is to be executed as if it is a decree of the civil court and that being the position, the proceedings for execution of the arbitral award will be governed by the Code of Civil Procedure. It was sought to be contended that a right of Appeal cannot be taken away from those who are not a party to the award or arbitral proceeding. We do not intend to enter into an analysis of hypothetical fact situations........ + More
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