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Indian Laws - High Court - Case Laws
Showing 1 to 20 of 9951 Records
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2022 (12) TMI 233
Dishonor of Cheque - legally enforceable debt or not - rebuttal of presumption - issuance and signature on the cheque not disputed - liability of signatory of cheque - Instead of filing a complaint against the firm, the same has been filed against petitioner No.1- private limited company - deemed service of notice, once refused to accept - HELD THAT:- A person who is the signatory to the cheque which is drawn by that person on an account maintained by him and the same has been issued for the discharge, in whole or in part, of any debt or other liability, which has been returned by the bank unpaid, such person can be said to have committed an offence. Pertinently, a reference to the dictum by Hon’ble The Supreme Court of India, in the cases RANGAPPA VERSUS SRI MOHAN [2010 (5) TMI 391 - SUPREME COURT] and TRIYAMBAK S. HEGDE VERSUS SRI....... + More
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2022 (12) TMI 91
Dishonor of cheque - rebuttal of presumption - signatures in the cheque not disputed - acquittal of respondent on the ground that the appellant failed to prove that cheques were issued towards legally enforceable debt - Section 138 of the N.I. Act - HELD THAT:- It is now a well settled proposition of law that the Appellate Court should not replace its finding with that of the trial Court only when another view is possible. Interference is permitted only when findings of the trial Court are perverse or against a settled proposition of law. Keeping in mind the above settled proposition for the purpose of deciding present appeal. Re-appreciation of evidence so as to consider whether findings of the trial Court are in fact perverse and if so whether interference is warranted, needs to be looked into. In the entire evidence brought on record, ....... + More
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2022 (12) TMI 90
Dishonor of Cheque - it is alleged that the petitioner was looking after the day to day affairs of the company - vicarious liability can be fastened against the petitioner under section 141 of the Negotiable Instruments Act or not - HELD THAT:- The Court has gone through the materials on record and finds that admittedly, the petitioner was the Executive Director at the time of issuing of the cheque. In paragraph no.3 of the complaint, it has been clearly averred that the accused nos. 2, 3 and 6 are the Directors of the company and accused nos.4,5,7,8,9 and 10 are responsible for the day to d ay affairs of the company. Thus, in the complaint itself it has been disclosed that this petitioner was not concerned with the day to day affairs of the company. The cheque was issued on 30 .09.2014. This petitioner has resigned on 27.02.2014 which wa....... + More
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2022 (12) TMI 61
Seeking release/recovery of HRA - no opportunity of hearing was given before starting recovery proceedings - entrustment of respondents' additional work of ISEZ - requirement to conduct an enquiry for making such recovery - HELD THAT:- Undisputedly, before making such recovery, no enquiry was conducted and no show-cause notice was given to the respondents. It is also not the case of petitioners / Department that respondents made any misrepresentation or fraud for getting HRA @ 20%. So far as the entitlement of HRA @ 20% is concerned, the respondents have filed various appointment orders (Annexure-A/2) to show that they were given the additional charge of ISEZ, Indore and some of them were regularly posted for three years and the same has not been disputed by the petitioners. The respondents obtained an information through RTI that Aud....... + More
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2022 (12) TMI 44
Suppression of facts from the Court - Seeking permission to withdraw the petition - it is alleged that the petition suffers from serious suppression of facts - scope of ‘any person’ as per Section 17(1) of the Securitization Act - HELD THAT:- This is trite that a litigant must approach the Court with clean hands, clean heart, clean mind and clean objective. This is settled that if a litigant has approached the court with a pair of dirty hands, the petition may be dismissed on this count alone. In other words, the petitioner does not have any right whatsoever to get a hearing on merits from this Court because of such conduct of suppression of material fact. Apart from this, contempt proceedings can also be initiated for suppression of facts. A plain reading of requirement of declaration as per High Court Rules leaves no room fo....... + More
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2022 (11) TMI 1085
Dishonor of Cheque - existence of legally enforceable debt or not - vicarious liability of Directors - rebuttal of presumption or not - directors were incharge of or responsible for the conduct of business of the accused company in the year 2020 or not - Section 138 and 141 of NI Act, 1881 - HELD THAT:- The settled position of law is that the signatory of a cheque which is dishonoured, is responsible for the act and will be covered under sub-section (2) of Section 141. Therefore, no special averments would be necessary to make him liable. A perusal of the complaint in the present case, however, reveals that specific averments have even been made against the petitioners i.e. accused no. 4 and 5 and their specific role has been highlighted by the complainant bank/respondent. In the case at hand, firstly, neither the signatures of the petiti....... + More
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2022 (11) TMI 1084
Dishonor of Cheque - harasement by non-payment of rent - Grant of benefit of probation - section 138 of Negotiable Instruments, Act, 1881 - HELD THAT:- It emerges that the petitioner who is the original complainant under Section 138 of NI Act, 1888 is only aggrieved by the fact that instead of upholding the order on sentence, also while upholding the order on conviction, the Appellate Court had shown undue leniency in the present case and the benefit of probation could not have been extended to respondent no 2 as he had harassed him by non-payment of rent. Release of respondent no. 2 on probation - HELD THAT:- There is no bar in extending the said benefit in a case under section 138 of Negotiable Instruments, Act, 1881. There is no reason in the present case to deny the benefit of Section 4 of the Probation of Offenders Act, 1958 or Secti....... + More
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2022 (11) TMI 1083
Dishonor of Cheque - failure to file a cheque return memo before the trial Court - whether on the basis of cheque return memo the summoning order cannot be passed? - HELD THAT:- The section 138 of the NI Act does not mandate any particular form of cheque return memo which is nothing but a mere information given by the Banker of the due holder of a cheque that the cheque has been returned as unpaid. If the cheque return memo is not bearing any official stamp of the bank, it does not render the cheque return memo as invalid or illegal. The cheque return memo is not a document which is not required to be covered under section 4 of the Bankers Book (Evidence) Act, 1891. If there is any infirmity in the cheque return memo, it does not render entire trial under section 138 of the NI Act as nullity. The perusal of the alleged cheque return memo ....... + More
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2022 (11) TMI 1082
Dishonor of Cheque - rebuttal of presumption - preponderance of probabilities - contention raised by the accused before the trial court was that the company was under liquidation and therefore, the criminal prosecution would not attract - section 138 of NI Act - HELD THAT:- The power of revision available to this Court is not wide enough to appreciate or re-appreciate the evidence to have a contra finding. It is the settled law that power of revision available to this Court under Section 401 of Cr.P.C. r/w. Section 397 is not wide and exhaustive to re-appreciate the evidence to have a contra finding - In decision of SANJAYSINH RAMRAO CHAVAN VERSUS DATTATRAY GULABRAO PHALKE AND OTHERS [2015 (1) TMI 1332 - SUPREME COURT], the Apex Court held that the High Court in exercise of revisional jurisdiction shall not interfere with the order of the....... + More
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2022 (11) TMI 1077
Dishonor of Cheque - statutory compliance of conduct of Inquiry under section 202 of IBC or not - HELD THAT:- Section 202 of the Code nowhere puts restriction on the Court of taking cognizance without holding an inquiry. The amendment to Section 202 only convey that if accused resides outside the jurisdiction of Magistrate, it is incumbent on the Magistrate to hold inquiry either himself or through Police. Thus, the restriction is on issuance of process under Section 204 and not on taking of cognizance. The Supreme Court in above referred case Suo Moto Criminal Petition (CRL.) No. 2 of 2020 [2021 (4) TMI 702 - SUPREME COURT] has clarified that during inquiry under Section 202 of the Code evidence of witnesses can be taken on affidavit in terms of Section 145 of the N.I. Act. Thus, there is no requirement to hold separate inquiry nor the C....... + More
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2022 (11) TMI 1068
Dishonor of Cheque - insufficiency of funds - complaint was barred by time limitation or not - time limitation for second SCN when the first SCN was itself time barred - whether the Courts below erred in dismissing the complaint without exercising jurisdiction under Section 142(1)(b)? - HELD THAT:- The Trial Court instead of appreciating the facts of the complaint to ascertain as to whether sufficient cause for not making a complaint within the prescribed period has been shown by the complainant or not dismissed the complaint holding that the second legal notice cannot be considered and the complaint is barred by time when limitation is counted from the date of the first legal notice. The said reasoning has been upheld by the revisional Court as well. In the considered opinion of this Court though filing of separate application seeking co....... + More
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2022 (11) TMI 1040
Dishonor of Cheque - insufficient funds - legally enforceable debt or not - compromise entered into between parties - section 138 of NI Act - HELD THAT:- In the backdrop of aforesaid litigation, now compromise has been effected between the parties. Both the parties have agreed about payment of Rs.1 crore each in aforesaid suit bearing Nos.60, 61, 62, 63, 64, 65, 66 and 67 of 2017, along with proportionate interest amount, so as to make the total of the entire decretal amount, equal to the extent of amount of Rs.8.35 crore, lying deposited, alongwith up-to-date interest, which accrued on the basis of the amount deposited in the form of FDRs. The party of second part i.e. Atma Tubes Products Limited has no objection and has unconditionally agreed for the release/payment of said amount i.e. Rs.8.35 crore, alongwith up-to-date interest, which....... + More
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2022 (11) TMI 994
Dishonor of Cheque - witness produced by prosecution/complainant, properly examined or not - Section 540Cr. PC - HELD THAT:- It is made clear that as noticed, the application moved by the respondent-accused has been allowed by the learned Magistrate invoking the provisions of Section 540 Cr. PC without being prayed therefor. It is a fact that one of the witnesses sought to be examined by the accused namely Nazir Ahmad Joo is one of the complainants who had also been examined as the complainants’ witness, so is the case of Manager J&K Bank Branch Chadoora who had already been examined as complainants’ witness and that both these witnesses have been subjected to lengthy cross examination by the respondent-accused before they were relieved without any resistance. The respondent-accused had all the liberty to cross examine the....... + More
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2022 (11) TMI 993
Dishonor of cheque - insufficient funds - rebuttal of presumption - preponderance of probabilities - Section 138 of NI Act - HELD THAT:- Merely because the accused has produced some copies of the alleged invoices, it cannot be inferred that those invoices, which are disputed by the complainant, have been established as the one created on the date shown therein by none else than the accused himself. Even otherwise, the said place-Hosur not being far away from Bengaluru where the office of the accused is said to be situated, it is easily possible for the accused to travel from Hosur to Bengaluru either to receive the loan or to deliver the cheque in question. As such also, the oral and documentary evidence of the accused to make out a case of preponderance of probabilities to rebut the presumption formed in favour of the complainant could n....... + More
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2022 (11) TMI 920
Dishonor of Cheque - complainant failed to comply with the mandatory provision as laid down under the N.I. Act as the notice was not served upon the accused persons - Reversal of order of acquittal passed by learned Metropolitan Magistrate - maintainability of impugned judgement in view of statutory mandate expounded under Sub-Section 3 of Section 401 of Criminal Procedure Code - HELD THAT:- In view of the statutory mandate expounded under Sub-Section 3 of Section 401 of Criminal Procedure Code the impugned judgement cannot be allowed to remain in force. Under the Code of Criminal Procedure specific provision is there to prefer appeal against the order of acquittal under Section 378. Therefore, in view of the judgement pronounced in the case of MADHU LIMAYE VERSUS STATE OF MAHARASHTRA [1977 (10) TMI 111 - SUPREME COURT] there is no room f....... + More
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2022 (11) TMI 854
Dishonor of Cheque - acceptance of evidence - acquittal of accused - rebuttal of statutory presumption under Section 139 of the Negotiable Instruments Act - HELD THAT:- The purpose of Section 138 of Negotiable Instruments Act is twofold. Firstly, it shows that even if on any count the negotiable instrument is not honoured by the bank, notice is mandatory to be given to the drawer of the cheque by the payee or the holder about reasons of dishonouring of the cheque and alongwith it, calling upon such drawer by way of demand for payment of the amount of money mentioned in the cheque. Failure on the part of drawer to comply with the said notice on either way must be considered strictly as such failure is going to affect the drawer in the matter filed under Section 138 of Negotiable Instruments Act. It is so because, Section 138 of Negotiable ....... + More
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2022 (11) TMI 853
Dishonor of Cheque - compounding of offence punishable u/s 138 of NI Act - whether after upholding the judgment of conviction and order of sentence passed by learned court below, can this Court proceed to compound the offence or not? - doctrine of merger - HELD THAT:- This Court in GULAB SINGH SHANDIL VERSUS VIDYA SAGAR SHARMA [2017 (3) TMI 1891 - HIMACHAL PRADESH HIGH COURT], while relying upon judgment of Hon'ble Apex Court as well as other Constitutional Courts has already held that court, while exercising power under Section 147 of Act can proceed to compound offence even in those cases, where accused stands convicted. Since in the case at hand, it is not in dispute that after passing of judgment dated 15.03.2022, parties have entered into the compromise, whereby entire amount of compensation awarded by learned court below has bee....... + More
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2022 (11) TMI 852
Dishonor of Cheque - insufficient funds - rebuttal of presumption - accused failed to make the payment good within the time stipulated in the legal notice - Section 138 of the Negotiable Instruments Act - HELD THAT:- This Court finds that complainant successfully proved all the ingredients of Section 138 of the Act and since accused despite having received legal notice failed to send any reply to the complainant raising therein dispute with regard to issuance of cheque, if any, in favour of the complainant, there is presumption in favour of the complainant that cheque in question was issued by the accused towards discharge of his lawful liability. Hence, it cannot be concluded that courts below have committed any illegality and infirmity while holding accused guilty of having committed offence punishable under Section 138 of the Act. More....... + More
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2022 (11) TMI 851
Dishonor of Cheque - insufficient funds - part payment of cheque was claimed to be done - endorsement in the cheque for the part payment - HELD THAT:- It is made clear that the provisions under Section 56 r/w Section 15 of the Negotiable Instruments Act, an endorsement may be made by recording the part-payment of the debt in the cheque or in a note appended to the cheque. When such an endorsement is made, the instrument could still be used to negotiate the balance amount. If the endorsed cheque when presented for encashment of the balance amount is dishonoured, then the drawee can take recourse to the provisions of Section 138. Thus, when a part- payment of the debt is made after the cheque was drawn but before the cheque is encashed, such payment must be endorsed on the cheque under Section 56 of the Act. The cheque cannot be presented f....... + More
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2022 (11) TMI 850
Dishonor of Cheque - insufficient funds - existence of legally enforceable debt or not - reply to demand notices not done - validity of signature on the cheques - rebuttal of presumption - section 138 of NI Act - HELD THAT:- If the entire case is analysed, it can be very well said that the Sessions Judge has come to a right conclusion to reverse the judgment of the learned Magistrate. It is no doubt true that the accused does not dispute the signature on the cheques. It is also a fact that accused did not reply to the demand notice issued by the complainant before filing the complaint. For these reasons, no inference can be drawn that the complainant was able to prove that the accused issued the cheques for discharging the hand loan. The burden is on the complainant to prove that he had lent money to the accused. Mere statement in the com....... + More
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