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Indian Laws - High Court - Case Laws
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- 2019 (10) TMI 883
Suit for recovery along with pendente lite and future interest and costs against the Defendants - stocking and retail sale of alcoholic beverages from its outlets at Gurgaon - Whether Mr. Satish Chandra Pandey is duly authorised to sign, file and institute the present suit on behalf of the plaintiff company? - HELD THAT:- Since the resolution of the Board has been proved by producing the original minute book, mere absence of seal/signature over the same makes it immaterial. Significantly, pursuant to the specific authorization to Mr. Satish Chandra Pandey, the Plaintiff Company has consistently participated in the present proceedings and this leaves no room for doubt that the authorization was valid. The prosecution of the suit is itself ratification of the authorization given by the Board - It is established that the suit was validly ins....... + More
- 2019 (10) TMI 806
Service of notice - Dishonor of Cheque - offence punishable under Section 138 of N.I.Act - whether the cause of action has arisen as the notice sent by the respondent/accused to the accused/applicant was returned due to his unavailability? - HELD THAT:- Admittedly, the notice under Section 138 of N.I. Act was sent to the applicant/accused through registered post on his correct address. It is well settled that once notice has been sent by registered post with acknowledgment, it must be presumed that the service is made effective. In the case of V. Raja Kumari vs P. Subbarama Naidu & Anr, [2004 (11) TMI 515 - SUPREME COURT], the Hon'ble Apex Court has held that statutory notice under Section 138 of the Act sent to the correct address of the drawer has been served has to be decided during trial and the complaint ought not to be dismi....... + More
- 2019 (10) TMI 805
Recovery of unpaid loan amount - account of the petitioner was declared as “Non Performing Assets” - SARFAESI Act - HELD THAT:- The petitioner has already filed an appeal under Section 17 of the Act before the Debts Recovery Tribunal. Meanwhile, a recovery citation dated 06.08.2019 has been issued by the Tehsildar, Haridwar against the petitioner, which the petitioner has now challenged before this Court - In view of this Court, the same is liable to be challenged by the petitioner before the Debts Recovery Tribunal itself and nothing can be done by this Court in the writ petition. Petition dismissed.
- 2019 (10) TMI 765
Seeking information under RTI in relation to an income tax assessee - pending complaint or not - details and status of the action taken by your department in respect of the complaint - HELD THAT:- The Additional Director, Income Tax (Investigation) to whom the original application under the RTI Act was addressed to is exempted from the provisions of the income tax. It is manifest that what the petitioner is seeking essentially pertains to the details of personal tax record of income tax assessee - Though, learned counsel for the petitioner in a very innocuous manner stated that he only seeks to know the steps taken by the respondent pursuant to the complaint but this plea, in my opinion, is an indirect attempt to try to seek personal information from the respondent regarding tax records of Sh.Nautiyal. - This detail the petitioner cannot get. There is no infirmity in the impugned order. Petition dismissed.
- 2019 (10) TMI 574
Dishonor of cheque - repayment of loan not made - present petition has been filed on the ground that the petitioner and respondent no.2/complainant has settled their disputes and pursuant to the settlement, the petitioner has paid an amount of ₹3 lacs which has been accepted by respondent no.2/complainant without any protest - HELD THAT:- Keeping in view the settlement arrived at between the parties and the poor financial condition of the petitioner, I hereby allow the present petition. As per the guidelines enshrined in decision rendered in DAMODAR S. PRABHU VERSUS SAYED BABALAL H. [2010 (5) TMI 380 - SUPREME COURT], the petitioners are required to pay 10% of the cheque amount to be deposited as a condition for compounding with the Delhi Legal Services Authority, Patiala House Courts Complex, New Delhi.
- 2019 (10) TMI 362
Dishonor of Cheque - Non-existence of bank account - offence punishable under Section 138 of the Negotiable Instruments Act, 1881 - petitioners submit that in the instant case their bank account had closed in the year 2017 and they had informed the respondent of the same and in as much as there was no cheque drawn by the petitioner on an account maintained by them, the complaint of the respondent is not maintainable. HELD THAT:- The aspect of the closure of the bank account of the petitioner prior to the issuance of the cheque, is a matter which cannot be determined without trial and thus, it is held that there is no infirmity in the impugned order dated 01.05.2019 of the learned MM-04, (NI Act) NDD/PHC, New Delhi District in CC No.6337/2019, whereby the cognizance of the alleged commission of the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 has been taken only against the petitioner no.2 herein. Petition dismissed.
- 2019 (10) TMI 361
Dishonor of Cheques - offence punishable under Section 138 of the said Act - bailable warrant against the applicant - applicant has signed the cheques and he is working in the capacity of managing director - liability against the company - HELD THAT:- In the present case, the applicant tried to place reliance on the ratio laid down by the Delhi High Court in the case of DSC Ltd. (supra) however, in that case the company was arraigned as party Respondent and Managing Director was not made separate party. In the fact of that case the Delhi High Court held that, on said technical defect complaint cannot be quashed. It is true that in the present case the subject cheque is signed by the applicant, however in the capacity of a Managing Director of the NHA Investment Consultancy Pvt. Ltd. Therefore, it is imperative on the part of the complaina....... + More
- 2019 (10) TMI 299
Dishonour of cheque - Service of statutory demand notice - Whether service of statutory demand notice as contemplated under Section 138(b) of the Negotiable Instruments Act, 1881, on the drawer of the cheque can be held invalid on the ground that the office copy of the said notice filed by the complainant alongwith the complaint under Section 138 of the N.I.Act’, does not bear the signature either of the counsel, who sent the said notice or of the drawee of the cheque? HELD THAT:- The Honourable Apex Court [2012 (12) TMI 154 - SUPREME COURT] has held that the complaint under Section 138 of the N.I.Act, without signature can be maintained when such a complaint is verified by the complainant and the Process is issued by the Magistrate after due verification It is quite obvious that only after noticing that the office copy filed alognw....... + More
- 2019 (10) TMI 223
Dishonor of Cheque - insufficiency of funds - offence punishable under Section 138 of the Negotiable Instruments Act - rebuttal of presumption - HELD THAT:- In the case at hand, accused has been not able to rebut the statutory presumptions under Section 118 and 139 of the Act in favour of the holder of the cheque i.e. complainant and as such, there appears to be no illegality or infirmity in the judgments/order of conviction and sentence passed by the learned Courts below - All the ingredients of S.138 of the Act stand duly proved in the case at hand, as such, this Court finds no occasion to interfere with the judgments/order of conviction and sentence recorded by learned Courts below, as such, same deserve to be upheld. The petition at hand is dismissed being devoid of merit.
- 2019 (10) TMI 220
Maintainability of petition - availability of alternate remedy of appeal - Payment of balance One Time Settlement (OTS) amount - grant of 6 months time to pay balance OTS amount from the date of disposal of the writ petition - SARFAESI Act - HELD THAT:- The recovery proceedings is initiated under SARFAESI Act. The SARFAESI Act provides for alternative remedy under Section 17 of the SARFAESI Act. Since, the petitioner has alternate remedy available under the Statue, it may not be appropriate for this Court to entertain the writ petition. But, it is not total bar to entertain the writ petition, when the petitioner makes out extraordinary ground. In the case on hand, no extraordinary ground is made out to entertain the writ petition except saying that if petitioner is granted some time he would make payment. The petitioner has not complied w....... + More
- 2019 (10) TMI 159
Dishonor of Cheque - insufficiency of funds - offence punishable under Section 138 of the Negotiable Instruments Act - legally enforceable debt or liability or not - HELD THAT:- The cheques issued by the Petitioner in favour of the complainant have been presented by the complainant in his bank within a period of six months. On their presentation, the same were dishonoured on account of stoppage of payment. Thereafter the complainant issued demand notice to the Petitioner, however, the Petitioner fails to make the payment of the said amount to the complainant. Therefore there is a compliance of mandate of Section 138 of the Negotiable Instruments Act by the Complainant. Whether there is legally enforceable debt existed as asserted by the complainant, and the cheques in question were issued in discharge of the said liability/debt? - HELD TH....... + More
- 2019 (10) TMI 36
Admissibility of criminal applications - Dishonor of Cheque - offence punishable under Section 138 r/w 141 of the Negotiable Instruments Act, 1881 - Vicarious Liability of Directors - resignation of directors - section 168 of Companies Act - HELD THAT:- Section 168 would make it abundantly clear that, the Director who wish to resign from his office, he / she has to give notice in writing to the company and the board shall on receipt of such notice, take note of the same and company shall intimate the Registrar in such manner, within such time and in such form as may be prescribed and shall also place fact of such resignation in the report of the directors laid in the immediately following general meeting of the company. In the present case, applicants have placed on record the copies of their letters addressed to the board of directors Ha....... + More
- 2019 (9) TMI 1273
Smuggling - Brown Colored Powdery Substance - Section 67 of NDPS Act - acquittal of accused - Testing of samples - HELD THAT:- It is pertinent to mention here that it is the duty of the courts, in the interest of justice, to understand that why the fresh samples were drawn on a date which was not in the knowledge of the petitioner/accused. Thus, raising a doubt on the entire process and bonafide case of the prosecution and that such discrepancy and illegality would ultimately result into the acquittal of the accused and therefore, there is no purpose of charging the accused and exposing them to the further harassment of trial which they have been facing since 03.12.2010. The order on charge dated 04.08.2017 is hereby set aside and the petitioners are discharged from the offences - petition is accordingly allowed with costs of ₹ 50,0....... + More
- 2019 (9) TMI 1210
Dishonor of cheque - insufficiency of goods - rebut of presumption under Section 139 of the Act - section 138 of NI Act - HELD THAT:- The petitioner has admitted the cheque in question as well as his signatures on the same. He has also admitted the execution of the “loan receipt”, as well as his signatures and handwriting on the same. In view of the above admitted facts, this Court is of the view that the petitioner has admitted the existence of the debt. At the same time, he failed to rebut the presumption by raising any probable defence. It is thus held that the petitioner has failed to discharge the onus and the presumption under Section 118A and 139 of NI Act has remained unrebutted. Petition dismissed.
- 2019 (9) TMI 1204
Maintainability of Letters Patent Appeal - locus of the appellant- complaint against the Chartered Accountant (CA) after 7 years of audit - Appellant / complainant not satisfied with the order of passed by Board of Discipline discharging the CA - Single Judge bench dismissed the appeal on the ground that appellant has nothing to do with the companies under question - it was further observed that, the complaint should not be entertained as the auditors are not bound to keep their working papers beyond seven years and therefore all the relevant audit papers may not be available for reply to the complaint. HELD THAT:- We are in full agreement with the reasons given by the learned Single Judge. There is no substance in this LPA and the same is, therefore, dismissed.
- 2019 (9) TMI 1101
Smuggling - Cocaine - section 37 of NDPS Act - offence punishable under Section 8 read with Sections 21 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 - release of accused on bail - HELD THAT:- Section 37 of the NDPS Act says that twin-conditions have to be adhered to by the court while dealing with the parameters of Section 439 of Cr.PC. The NDPS Act is an Act enacted with an object to make stringent provision for control, regulation and operation relating to NDPS Act. It is a special enactment, Section 37 of the Act, states that a non-abstante clause and is in negative terms limiting the scope and applicability of the provision of criminal procedure for bail. The non abstante clause with which Section 439 of Cr.PC., should be given with true manner and clearly it is intended to restrict the power to grant bail. The p....... + More
- 2019 (9) TMI 1049
Attachment of mortgaged properties - first charge of the Bank over the properties mortgaged with the Petitioners - recovery of sales tax dues from the assets of the defaulter by State Government - SARFAESI Act - Whether the Bank will have the first priority to recover its dues being a secured creditor in view of Section 26E of the SARFAESI Act or the State will have the first priority by virtue of Section 48 of the VAT Act? HELD THAT:- While it is true that the Bank has taken over the possession of the assets of the defaulter under the SARFAESI Act and not under the RDB Act, Section 31B of the RDB Act, being a substantive provision giving priority to the “secured creditors”, the same will be applicable irrespective of the procedure through which the recovery is sought to be made. This is particularly because Section 2(la) of t....... + More
- 2019 (9) TMI 1011
Smuggling - Charas - Grant of leave to appeal - charge under Sections 20 of NDPS Act, 1985 - HELD THAT:- The prosecution had miserably failed to prove the strict compliance of mandatory provisions of Section 42 of the NDPS Act. It was incumbent upon the Investigating Officer to reduce the secret information into writing and to send the same to his higher officers, but in the present case the said provision had not been complied with and the Investigating Officer, while stepping into the witness box as PW-3, had admitted that neither the secret information was reduced into writing nor the same was sent to the higher authorities or the concerned Police Station. In the present case, the mandatory provisions of Section 50 of the NDPS Act had also not been complied. Once the strict compliance was not made and defective offer was given to the r....... + More
- 2019 (9) TMI 951
Compulsory Acquisition - Taking over of petitioner's property by the Central Government - pre-emptive purchase under Chapter XX-C, consisting of Sections 269U to 269UO of the Income Tax Act, 1961 as inserted by Finance Act, 1986 - liability of purchaser to pay the pending amount - under-valuation of property or not - HELD THAT:- What prompted the appropriate authority to take action was the fact that apartment No.62-B in Building No.103 on 6th floor which was also located in the same premises and was similarly situated was proposed to be sold for ₹ 20.00 lakh odd and consequently no fault can be found with the finding that as against the market value of ₹ 20.00 lacs, the petitioners were selling the property at a much lesser rate. Liability of purchaser to pay the pending amount - HELD THAT:- The reading of the agreement does not reveal that any liability of the purchaser remained. Petition dismissed - other related applications also dismissed.
- 2019 (9) TMI 883
Dishonor of Cheque - discharge of a legally enforceable debt - offence punishable under Section 138 of the Negotiable Instruments Act, 1881 - rebuttal of presumption - HELD THAT:- The circumstances enabled the accused to persuade the court to believe that he had not incurred any debt or liability to the complainant and that he had not issued the cheque to the complainant in discharge of any debt or liability. Thus, even if it is found that the specific plea set up by the accused as to the possession of his cheque by the complainant is not proved by him, he could succeed in rebutting the presumption under Section 139 of the Act by relying upon the facts and circumstances of the case set up by the complainant against him and also the facts and circumstances brought out in the evidence of the complainant. Then, in the absence of any reliable....... + More
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