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Indian Laws - High Court - Case Laws
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- 2021 (4) TMI 470 - ALLAHABAD HIGH COURT
Dishonor of Cheque - rebuttal of presumption - signatures on cheque accepted - decision on receipt of notice - Section 143A of Negotiable Instruments Act - HELD THAT:- Considering that the petitioner has admitted his signatures on the cheque in question and that even according to the petitioner some amount was due and payable, there is a presumption under Section 139 of the N.I. Act that there exists a legally enforceable debt or liability. Of course such presumption is rebuttable in nature and the same could only be done by adducing evidence at trial but at this stage as the minute appreciation of evidence is not to be done complaint could not be quashed on this score. Therefore at this stage of trial complainants are entitled for the presumption as provided under Section 139 of N. I. Act. The reciept of notice could not be decided in th....... + More
- 2021 (4) TMI 362 - KARNATAKA HIGH COURT
Seeking grant of Bail - Smuggling - suspected parcels containing ‘MDMA’ drugs, weighing 150 gms - contraband articles seized from the possession of the petitioner - case of Revenue is that investigation clearly revealed that the said drugs were purchased and ordered by the petitioner through parcel from Netherland, he is from the Kerala State - HELD THAT:- This Court has considered the entire material on record and detailed orders are passed and dismissed the petition. Except the contention that the petitioner’s father is unwell, there is no other additional ground addressed by the learned counsel for the petitioner. As per the records, seized drug is 150 gms which is 15 times more than the commercial quantity and worth of ₹ 15.00 lakhs. The alleged offence is a heinous one. If the petitioner is granted bail, there....... + More
- 2021 (4) TMI 285 - DELHI HIGH COURT
Dishonor of Cheque - accused failed to pay the cheque amount within 15 days of receipt of legal Demand Notice - enforceable outstanding debt/liability or not - complaint sufficient to proceed against the petitioner as contemplated under Sections 138 and 141 of Negotiable Instruments Act or not - continuation of the proceedings against the petitioner, who claims to be neither the signatory of the cheque nor the person in charge of the accused-company - HELD THAT:- The Hon’ble Supreme Court in N. RANGACHARI VERSUS BHARAT SANCHAR NIGAM LTD [2007 (4) TMI 621 - SUPREME COURT] has held that an advertence to Sections 138 and 141 of the Negotiable Instruments Act shows that on the other elements of an offence under Section 138 being satisfied, the burden is on the Board of Directors or the officers in charge of the affairs of the company to....... + More
- 2021 (4) TMI 278 - GAUHATI HIGH COURT
Request for proposal (RFP) for selection of distributors for conventional paper and online lotteries - conversion of the distributorship from online lottery to paper lottery - HELD THAT:- Lottery includes gambling as anelement of chance which requires no skill and as held by the Apex court it would not attain the status of trade like other trades or become res commercium. Accordingly, the petitioner has no right to invoke Article 14 of the Constitution of India or under Article 19(1)(g) of the Constitution of India seeking for his protection of his fundamental right for carrying on trade and commerce of the State lotteries. The petitioner is not entitled to objectand be heard by the respondent No. 1 while taking the impugned decision. The impugned decision dated 12.09.2018 does not in any manner injure the interest of the petitioner recog....... + More
- 2021 (4) TMI 186 - PUNJAB AND HARYANA HIGH COURT
Threat - Seeking issuance of directions to the official respondents for protection of life and liberty of the petitioners from the private respondents arrayed in the petition - HELD THAT:- Learned State counsel on instructions from ASI Amar Singh submits that the statements of the petitioners have been recorded by Deputy Superintendent of Police, Head Quarter, Ambala. It is stated therein that there is no threat perception. No cause of action survives for pursuing with the present petition - Disposed of as infructuous.
- 2021 (4) TMI 146 - TRIPURA HIGH COURT
Dishonor of Cheque - burden to prove - onus to rebut the statutory presumptions under Sections 138 and 139 of the N.I Act - service of notice - Existing debt or not - HELD THAT:- It is a settled proposition of law that mere issuance of a cheque and its dishonour would not constitute an offence by itself under Section 138 N.I Act, 1881 unless the basic elements of Section 138 and the eventualities mentioned in Clauses (a), (b) and (c) in the proviso to Section 138 of the N.I. Act, 1881 are satisfied. With regard to the service of statutory notice, accused pleaded that she did not receive any such notice after the cheque issued by her was allegedly dishonoured. The complainant seems to have proved by adducing documentary evidence that he issued such notice (Exbt.4) within 15 days from the date of his receiving the information from the bank ....... + More
- 2021 (4) TMI 36 - KERALA HIGH COURT
Dishonor of Cheque - legally enforceable liability - rebuttal of presumptions under Sections 118(a) and 139 of Negotiable Instruments Act - HELD THAT:- The execution of the cheque was admitted; similarly, he had failed to prove the plea of discharge and since it was contended that the cheque was issued as security; both the arguments were not acceptable to the court and the learned Magistrate proceeded to convict the 2 nd respondent as stated supra. Against that conviction, when appeal was preferred, the learned Sessions Judge reversed the finding on various reasons. According to him, it was a house deposit scheme, which had completed in the year 2005, and therefore, there is no possibility of issuing a cheque as claimed by the appellant on 22.01.2008 - The Sessions Judge also noticed inconsistency with regard to the date of issuance of t....... + More
- 2021 (4) TMI 34 - KERALA HIGH COURT
Dishonor of Cheque - rebuttal of presumption - offence punishable under Section 138 of the Negotiable Instruments Act - whether the first respondent could rebut the presumption? - HELD THAT:- After revisiting the evidence, the answer should be in negative. From the very outset, she had been taking a negative attitude. Even though the lawyer notice was tendered in her correct address, she refused to receive the same. It is a matter of adverse inference. Her first expression of the transaction had come up when the power of attorney holder, PW1 was cross examined. Then she took the stand that the document was given in consideration of ₹ 20,000/-, borrowed by her, that the said amount has already been repaid - The case of PW1 is that the appellant had lent the amount to the first respondent on his assurance. Whatever it may be, once the....... + More
- 2021 (4) TMI 33 - ALLAHABAD HIGH COURT
Dishonor of Cheque - Constitutional Validity of Appointment of the retired District & Sessions Judge by the impugned Government Orders as Additional Court - section 138 read with Section 141 of Negotiable Instruments Act, 1881 - HELD THAT:- The Law Commission had taken note of the experience of the judicial post for the purpose of appointment and conferment of power of Special Judicial Magistrates with the object of securing the expeditious disposal of criminal cases. The Joint Select Committee also took note of the criticisms against the system of Honorary Magistrates and expressed the view that proper way to deal with the arrears of petty criminal cases was to appoint sufficient number of stipendiary Magistrates as a wholesome deletion of the institution of Honorary Members would give rise to problems in some States. The Joint Selec....... + More
- 2021 (4) TMI 30 - ALLAHABAD HIGH COURT
Dishonor of Cheque - insufficiency of funds - compounding of offence under Negotiable Instruments Act - HELD THAT:- The law regarding compounding of offence under Negotiable Instruments Act is no more res integra and the offences under the said Act can be compounded at any stage of the proceedings. The Hon'ble Supreme Court in the case of K. M. Ibrahim vs. K.P. Mohammad and another [2009 (12) TMI 903 - SUPREME COURT] where it was held that Section 147 of the aforesaid Act does not bar the parties from compounding an offence under Section 138 even at the appellate stage of the proceedings. Taking into account the fact that the parties have agreed to end the proceedings by way of compromise and the opposite party no.2 has already received the amount of cheque along with interest/ cost and he does not want to pursue the proceedings again....... + More
- 2021 (3) TMI 1137 - ALLAHABAD HIGH COURT
Dishonor of cheque - insufficiency of funds - compounding of offences or not - Section 138 of NI Act - HELD THAT:- The Hon'ble Supreme Court in the case of KM. IBRAHIM VERSUS KP. MOHAMMED & ANR. [2009 (12) TMI 903 - SUPREME COURT] has held as under It is true that the application under Section 147 of the Negotiable Instruments Act was made by the parties after the proceedings had been concluded before the Appellate Forum. However, Section 147 of the aforesaid Act does not bar the parties from compounding an offence under Section 138 even at the appellate stage of the proceedings. The parties have agreed to end the proceedings by way of compromise and the opposite party no.2 has already received the entire amount of cheque as well as cost/ interest of ₹ 10,000/- , this Court deems it appropriate to compound the offence on the....... + More
- 2021 (3) TMI 1135 - GAUHATI HIGH COURT
Dishonor of cheque - rebuttal of the evidence of the complainant as regards payment, not produced - blank cheque given as security, in absence of adequate evidence, relevant or not - section 138 of NI Act - HELD THAT:- In the instant case, the accused petitioner admittedly has issued the cheque with his signature voluntarily but has failed to rebut the presumption that the cheque was not issued in discharge of debt or liability by producing requisite evidence. The Hon’ble Apex Court in HITEN P. DALAL VERSUS BRATINDRANATH BANERJEE [2001 (7) TMI 1172 - SUPREME COURT], it has been held that mere plausible explanation given by an accused is not enough to rebut the presumption and accused has to disprove the prosecution case by giving cogent evidence that he has no debt or liability to issue the cheque. As a corollary of findings, it can....... + More
- 2021 (3) TMI 1134 - MADRAS HIGH COURT
Dishonor of Cheque - insufficiency of funds - legally enforceable debt or not - failure to rebut the presumption - HELD THAT:- The complainant has proved his case by letting in cogent evidence. Whereas, the accused has failed to rebut the presumption u/s.139 of N.I.Act to prove his case. Though the accused had examined his brother as D.W.1, nothing is elicited. Further, the evidence of D.W.1 had infact fortified the fact that the accused had also constructed a house. It is a case of the complainant that the accused had borrowed money towards loan while he was constructing house and that in order to discharge his liability, he had issued a cheque. The the trial Court as well as the Appellate Court finding that the accused has not rebutted the presumption found him guilty for the offence under Section 138 of Negotiable Instruments Act and h....... + More
- 2021 (3) TMI 974 - DELHI HIGH COURT
Search and seizure proceedings in the presence of independent witness - Smuggling - reasons to believe that offence is committed - foremost plea taken by petitioner is that at the first available opportunity he had retracted from the confessional statement recorded under Section 67 of NDPS Act - HELD THAT:- Recently, the Hon’ble Supreme Court, by majority view while answering to a reference with regard to the evidentiary value of Section 67 of NDPS Act in Tofan Singh [2020 (11) TMI 55 - SUPREME COURT] held “that a statement recorded under section 67 of the NDPS Act cannot be used as a confessional statement in the trial of an offence under the NDPS Act”. Reciting a dissenting view in Tofan Singh (Supra), Hon’ble Ms. Justice Indira Banerjee observed that “she was unable to agree that a statement recorded under....... + More
- 2021 (3) TMI 908 - BOMBAY HIGH COURT
Requirement of issuance of SCN - grant of personal hearing to the petitioners before passing the impugned order of supersession of the Board of Directors - discretionary power not to follow the directives issued by the RBI or in case of any directives to supersede or suspend the Board of Directors of the Co-operative Bank, the Registrar could only suspend the Board of Directors of the co-operative bank - amendment to Section 110A(1)(iii) of the Maharashtra Co-operative Societies Act, 1960 substituting the period of 5 years by one year - supercession of Board of Directors of the Cooperative Bank and to appoint Board of Administrators under the provisions of the Banking Regulation Act, 1949 read with Section 110A of the MCS Act. Whether the Registrar, Cooperative Societies was required to issue any show cause notice and grant any personal h....... + More
- 2021 (3) TMI 907 - KERALA HIGH COURT
Dishonor of Cheque - legally enforceable debt or not - cheques were obtained two years prior to the date of presentation - HELD THAT:- The three ingredients to attract the offence under Section 138 of the Negotiable Instruments Act are that there was a legally enforceable debt, that the cheque was drawn from the account of the banker for discharge, in whole or part of any debt or liability which presupposes a legally enforceable debt and that the cheques so issued had been returned due to insufficiency of funds. In order to draw the presumption available in favour of the appellant under Section 118 and 139 of the Negotiable Instruments Act, it must be admitted or proved that the cheques were issued by the first respondent in discharge of a legally enforceable debt or liability. Here, the first respondent has not admitted the allegations. ....... + More
- 2021 (3) TMI 904 - KARNATAKA HIGH COURT
Dishonor of Cheque - Whether the Appellate Court has erred in appreciating the evidence, allowing the appeal and acquitting the respondent - accused? - HELD THAT:- The answer is in affirmative. A mandatory presumption is required to be raised in respect of Negotiable Instrument in terms of Section 118 (b) of the Act. Section 139 of the Act merely raises a presumption that the cheque has been issued for discharge of any debt or other liability. The proceeding under Section 138 of N.I. Act is quasi criminal in nature. In these proceedings, proof beyond reasonable doubt is subject to presumptions envisaged under Sections 118, 139 and 146 of N.I. Act - An offence under Section 138 of N.I. Act is committed not on dishonor of cheque, but on failure of drawer of the cheque to make payment within 15 days from the date of receipt of notice of dish....... + More
- 2021 (3) TMI 903 - DELHI HIGH COURT
Maintainability of enforcement petition - Emergency Arbitrator - Arbitrator within the meaning of Section 2(1)(d) of the Arbitration and Conciliation Act, or not - interim order dated 25th October, 2020 an order under Section 17(1) of Arbitration and Conciliation Act, or not - Misapplication of concept of Group of Companies doctrine to implead respondent - arbitration agreement between the petitioner and respondent No.2 and combining/ treating all the agreements as a Single Integrated Transaction - HELD THAT:- The Emergency Arbitrator is an Arbitrator for all intents and purposes; order of the Emergency Arbitrator is an order under Section 17(1) and enforceable as an order of this Court under Section 17(2) of the Arbitration and Conciliation Act. The respondents have raised a vague plea of Nullity without substantiating the same. The inte....... + More
- 2021 (3) TMI 899 - JHARKHAND HIGH COURT
Dishonor of Cheque - Service of notice regarding cheque bouncing - discharge of onus against presumption of cheque - specific case of the accused before the learned lower appellate court was that the learned trial court failed to consider that the cheque was issued in a matter of investment in the business of the accused and was not in discharge of any debt - applicability of Sections 138 to 142 of the Negotiable Instruments Act - HELD THAT:- The legal notice regarding bouncing of cheque was sent through registered post as well as through courier service and the learned trial court at para-8 of its judgment has considered the service of legal notice through registered post i.e. through post office as well as the notice sent through courier service. In fact, the learned trial court has recorded that the post office has given in writing tha....... + More
- 2021 (3) TMI 888 - KARNATAKA HIGH COURT
Dishonor of Cheque - documents sought for handwriting expert so as to identify the admitted writings - rejection of application u/s 45 of the Indian Evidence Act - HELD THAT:- In view of the ratio laid down in Bir Singh’s case [2019 (2) TMI 547 - SUPREME COURT], the contention that the other documents are in the handwriting of the different persons, is not a ground. Hence, in the case on hand, I do not find any error committed by the learned Magistrate in rejecting the application filed under Section 45 of the Indian Evidence Act. In view of allowing the application filed under 65B of the Indian Evidence Act, the witness DW.1 is to be recalled and he shall be permitted to lead his further evidence by placing the certificate under Section 65B of Indian Evidence Act while marking the document. In order to prove his defence, an opportunity is to be given to the accused, who has been examined as DW.1. Petition allowed.
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