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Indian Laws - High Court - Case Laws
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2019 (8) TMI 822 Dishonor of Cheque - insufficiency of funds - legally enforceable debt or not - existence of loan or not - section 138 of NI Act - rebuttable presumption - acquittal of accused - HELD THAT:- In the instant case, the accused has succeeded in discharging her burden to rebut the presumption under Section 139 of the Act by leading evidence and also by relying upon the improbabilities in the case set up by the complainant. The evidence of DW1 proves that she had sold 10 cents of property to the father of the complainant in the year 2002 and at the time of the sale, there was liability towards the bank which was a charge on that property. PW1 has admitted on cross examination that his father had purchased 10 cents of property from the mother of the accused. DW1 has given evidence regarding the sale of 10 cents of property by her to the father o....... + More
2019 (8) TMI 821 Levy of Vehicle Tax - Vehicle registered in different state - Concurrent powers of center and state - Vires of Entries 57 and 35 of List II and III of Seventh Schedule of Constitution of India, the Motor Vehicles Act, 1988, The Central Motor Vehicles Rules, 1989, the Kerala Motor Vehicles Taxation Act, 1976 and the Kerala Motor Vehicles Rules - vehicle tax allegedly due and payable under Act 1976 is not paid or remitted to State of Kerala - case of the petitioner is that the petitioner is entitled or free to register the vehicle according to his choice, subject however to complying with the requirements of Section 40 of Act 1988. HELD THAT:- The State legislature firstly is competent to legislate on Motor Vehicle Taxation and secondly authorised by Entry 16 to administer roadways etc. In the process, the State has to not only lay the road....... + More
2019 (8) TMI 741 Recovery proceedings - appellants are the purchasers of immovable property in an auction sale conducted under the Rules in the Second Schedule of the Income Tax Act, 1961 - writ petition was filed by the mother stating that whereabouts of her son were not known and she was not able to contact him - HELD THAT:- We are of the considered view that the Recovery Officer and the Tribunal have to dispose of the review and the appeal, untrammeled by any of the observations made in the impugned judgment. It would be proper for the parties to raise all their contentions, including the question regarding maintainability of the appeal and the review petition, before the authorities concerned. Additional respondents in the appeals has requested that a direction may be given to the Tribunal to dispose of the appeal pending before it only after the disp....... + More
2019 (8) TMI 665 Dishonor of Cheque - trust - Prosecution proceedings against the trustee who has not signed the cheque - petitioner argued that since "trust" is not an "association of individuals", no successful prosecution against the petitioners, invoking the provisions under section 141 of the N. I. Act, can be sustained - HELD THAT:- All the trustees are the owners of the property, but they are obliged to use the same in a particular manner. If a number of trustees exist, they are the joint owners of the property. The trustees are bound to maintain and defend all suits, for the preservation of the trust-property and the assertion or protection of the title thereto. Thus it appears that the "trust" is not capable of suing and being sued in a court of law, even though the trustees can maintain and defend suits for the pres....... + More
2019 (8) TMI 476 Dishonor of Cheque - legally enforceable debts - Rejection of application of the Petitioners for recall of process issued under Sections 138 of the Negotiable Instruments Act, 1881 - Section 204 of Cr.P.C. - HELD THAT:- The Supreme Court in the case of ADALAT PRASAD VERSUS ROOPLAL JINDAL & OTHERS [2004 (8) TMI 647 - SUPREME COURT] held that, the Court, who has issued process, has no power of review its order of issuance of process, and hence order of issuing process cannot be recalled. In the present case, petitioner preferred an application for recalling the order of issuance of process passed by the learned Magistrate, which was not tenable in view of law laid down in the case of Adalat Prasad. Hence, the application preferred by the petitioner was not maintainable. The issue of maintainability of the application filed by the petiti....... + More
2019 (8) TMI 475 Professional misconduct on the part of CA - Clause 7 of Part-I of Second Schedule to the Chartered Accountants Act, 1949 - It is alleged that the accounts and audit report in respect of seven separate companies mentioned in the complaint had not been prepared in compliance with the provisions of the Companies Act, 1956 and directions issued by the Reserve Bank of India (RBI) in respect of a non-banking financial company - HELD THAT:- Since, the petitioner is a company, this Court had called upon the learned counsel appearing for the petitioner to respond as to whether the Memorandum of Association of the petitioner company permitted the petitioner to pursue such complaints against various Chartered Accountants wholly unconnected with its business. The learned counsel had answered in the affirmative. He has also produced the Memorandum of ....... + More
2019 (8) TMI 415 Repeated complaints against various Chartered Accountants - Professional misconduct falling within the meaning of Clauses (5) to (9) of Part I of the Second Schedule to the Chartered Accountants Act, 1949 - activity which may be carried on as incidental or ancillary to attainment of the main object - composition of Board of Directors - statements verified by HA to the effect that Hasham did not have any subsidiary. HELD THAT:- The conduct of ICAI’s member (a Chartered Accountant) is to be evaluated by the concerned authorities of ICAI. The object is to ensure that its members measure up to the standards as set by ICAI for continuing as its member. As stated earlier, the matter is, essentially, between ICAI and its members. This is also the rationale for not providing any appellate remedy to the complainant against the decision of th....... + More
2019 (8) TMI 413 Complaints against Chartered Accountants - HELD THAT:- The petitioner states that the object clause of the petitioner company permits the company to file complaints against random Chartered Accountants as a measure of public welfare. The Memorandum and Articles of Association are not on record. The learned counsel appearing for the petitioner undertakes to produce it on the next date of hearing - List on 01.08.2019.
2019 (8) TMI 373 Dishonor of cheque - cheques returned uncashed - insufficiency of funds - offence punishable under Section 138 of the N.I. Act - HELD THAT:- This Court finds that respondents No. 1 and 2 in spite of the orders of the learned trial Court, Appellate Court as well as by this Court and also by the Hon’ble Supreme Court, have not paid the cheques amount and flouted the order by putting the technical procedure hurdles and not obeying the order. This conduct shows that the respondents issued the cheques merely as device to fraud the complainant and this dishonored of the cheques caused incredible loss, injuries and inconvenience to the complainant and also reflected the credibility of the business transaction. This Court is of the view that the learned trial Court without assigning any reason reduced the sentence of imprisonment into the l....... + More
2019 (8) TMI 310 Dishonor of cheque - insufficiency of funds - acquittal of offence u/s 138 of the Negotiable Instruments Act, 1881 - legally enforceable debt as contemplated under Section 138 of the NI Act or not - limitation of a liability beyond a period of three years - HELD THAT:- A perusal of the record reveals that, in the instant case, the last business transaction between the parties took place on 26.7.2005 and thereafter, no other business transaction took place between the parties. The Appellate Court has, hence, rightly held that in these circumstances, the cause of action to enforce the said liability, as per law, against the respondent No.2 remained in existence only up to July 2008. Further, it has also been correctly held by the Appellate Court that the Trial Court has although acknowledged the handwritten copy of the account statement, wh....... + More
2019 (8) TMI 249 Dishonor of cheque - sufficiency of funds - rebuttal of presumption - offence punishable under Section 138 of the Negotiable Instruments Act,1881 - plea of the accused is that he had subscribed to the kuri conducted by the firm 'Crown Kuries' and when he received the kuri amount, he had given a signed blank cheque as security - HELD THAT:- The evidence of the complainant, where it is found to be credible and trustworthy, is sufficient to conclude that the cheque was duly executed by the accused and delivered to him. Corroboration is a rule of prudence and not one of law. Whether corroboration to the evidence of the complainant is required or not would depend upon the circumstances of each case - In the instant case, in the light of the inconsistency in the evidence of PW1 regarding the drawing and delivering of the cheque by the a....... + More
2019 (8) TMI 248 Dishonor of Cheque - insufficiency of funds - acquittal of accused - complainant failed to prove execution of the cheque by the accused and the presumption under Section 139 of the Act cannot drawn in his favour and found the accused not guilty of the offence punishable under Section 138 of the Act and acquitted him - HELD THAT:- The denial of execution and transaction canvassed by the accused, necessarily, has to be appreciated in the totality of the facts and circumstances presented in the case. It is well settled that where execution of the cheque is denied it has to be proved by the complainant. But, what is the rigour of proof that is required to prove the execution, where there is denial by the accused, depends upon the facts and circumstance involved in the case. In the instant case, there is no sufficient reason to disbelieve the ....... + More
2019 (8) TMI 118 Maintainability of petition - recall of order of issuance of process - Dishonor of Cheque - insufficiency of funds - Section 138 of the N.I.Act - HELD THAT:- It appears that the learned Magistrate passed the order of issuance of process against the petitioner on 28.04.1993. Admittedly, the said order was never challenged by the petitioner. However, the petitioner challenged the order of recording the plea passed by the learned Magistrate. However, an application preferred by the petitioner challenging the order of recording the plea was rejected by the learned Magistrate. It appears that being aggrieved, the petitioner filed revision before the Sessions Court, Pune. However, it has been rightly observed by the Sessions Court that revision was not maintainable, and accordingly the said revision was rejected. It appears that in the year 200....... + More
2019 (8) TMI 117 Professional misconduct against CA - conducting both internal audit as well as statutory audit - accepting the assignment without communicating with the previous auditor - Clauses 7 and 9 of Part I of the Second Schedule to ICAI Act - ICAI found some merit in allegation and awarded punishment of being reprimanded - Writ petitioner being aggrieved person was the trustee of the trust and was expelled - HELD THAT:- This Court is of the view that there is no flaw in the conclusion of the Disciplinary Committee in rejecting the said allegation. The Disciplinary Committee had noticed that the resolution dated 03.03.2003 was passed at a meeting which was attended by only four trustees. It had noticed that this number was short of the 3/4th majority required as per Rules and Regulations. Mr Jayant Mehta did not produce any material to show that t....... + More
2019 (8) TMI 62 Dishonor of Cheque - insufficiency of funds - acquittal of the accused - offence punishable under Section 138 of the Negotiable Instruments Act, 1881 - HELD THAT:- On a perusal of Ext.P1 cheque, it is seen that the name “Kousthubhan” (the name of the accused) was initially written as the name of the payee. It is seen that the name of the payee written as “Kousthubhan” is struck off and the name of the complainant is written in the cheque as the payee - Therefore, it is evident that there was alteration made in the cheque with regard to the name of the payee. The question is whether it is a material alteration or not. Alteration of the payee's name in a cheque is material which affects the character of the instrument, and so also the relationship of the parties and their legal position as originally expressed. T....... + More
2019 (8) TMI 1 Conditional leave to defend upon deposit - dishonored cheques - whether, in the backdrop of the material on record, the learned Judge, City Civil Court, justifiably exercised the discretion to grant conditional leave to defend upon deposit of the amount covered by the dishonoured cheques? HELD THAT:- The defence set up in the case at hand needs to be appreciated so as to determine in which of the categories the defence set up by the petitioner falls. Recourse to the impugned order, at this stage, may be apposite. The learned Judge found that the defence of the defendant that he had delivered blank signed cheques is a sham and moonshine defence - The defence set up by the defendant is required to be appreciated in the backdrop of the fact that there is no qualm over the fact that there were transactions of sale and delivery of the goods be....... + More
2019 (7) TMI 1428 Non-compliance of the amended clause No.6.4.2.1 - invitation of tenders for construction of seeds storage structures alongwith the amenities for seven villages in different Districts of the State of Gujarat - HELD THAT:- The writ-applicant participated in the tender process. It appears that, later one of the conditions providing the eligibility criteria came to be modified. The writ-applicant is aggrieved by such action on the part of the Corporation in modifying the eligibility criteria. In such circumstances, the writ applicant thought fit to come before this Court with the present petition. Application disposed off.
2019 (7) TMI 1338 Dishonor of Cheque - rebuttal of presumption - statutory presumption under Sections 118 and 139 of the NI Act - HELD THAT:- The presumptions under Section 118 or under Section 139 are rebuttable. Section 139 allows a presumption that the cheque referred to in Section 138 was given to discharge the debt in whole or in part. But the question is whether the debt or other liability under Section 139 is presumed to be “a legally enforceable debt.” The existence of legally recoverable debt is not a matter of presumption under Section 139 of the Act. It merely raises a presumption in favour of a holder of the cheque that the same has been issued for discharge of any debt or other liability. It has also held that the prosecution must prove the guilt of an accused beyond all reasonable doubt, the standard of proof to prove an accused&#....... + More
2019 (7) TMI 1336 Commission of inquiry report - Section 8-B and 8-C of the Commission of Inquiry Act, 1952 - It is the grievance of all the Petitioners that prejudicial findings, which tend to affect their reputation, have been rendered by the Commission against them without following these mandatory provisions - Principles of natural justice - HELD THAT:- In the present case, both Union of India and the State Government make it clear, at the very outset, that they do not propose to take any action against the individuals named in the report of the Commission only on the basis of the findings of the report. Both Union and State submit that they shall in every individual case make their own assessment of facts and give opportunity of hearing to affected parties in their defence, whenever an action is proposed against such affected parties. The report of th....... + More
2019 (7) TMI 1286 Termination of services - industrial dispute - instant writ petition raised an industrial dispute against the petitioners claiming that he was employed as peon by the petitioners on 22.2.1993 and that his services were illegally terminated on 7.10.1998 - HELD THAT:- The reference as was made by the State Government was essentially erroneous. Since I have found that the reference itself was bad, no finding is required to be given on the issues as to whether the petitioners were an industry and as to whether there was a relationship of an employee and employer existing between the parties. The petitioners were a body which got its existence because of a central enactment being Act No. 38 of 1949. If one goes by Section 2(a)(ii) of the Industrial Disputes Act, 1947, it becomes clear that even an autonomous body which was doing industrial wor....... + More
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