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Indian Laws - Case Laws
Showing 141 to 160 of 25514 Records
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2024 (1) TMI 438 - CALCUTTA HIGH COURT
Dishonour of Cheque - rejecting the petitioner's prayer under Section 311 of the Code of Criminal Procedure for recalling of Prosecution Witness No. 1.
The Learned Metropolitan Magistrate concerned was pleased to reject the said application on the ground that by allowing the said application the petitioner herein could not be permitted to fill up the lacuna of the prosecution case to the disadvantage of the accused person in the said case, being the opposite party no. 2 herein.
HELD THAT:- In the present case, the documents sought to be brought on record by the petitioner by way of additional evidence are documents “essential” and thus relevant for arriving at a just decision in the case. The prayer under Section 311 Cr.P.C. has been made in this case as soon as the documents were made available to the petitioner and the same are essential to aid in the discovery of truth. The documents in this case are necessary only with the object of proper proof of relevant facts in order to meet the requirement of justice. The reason for not being able to bring the present materials on record at the relevant stage has been satisfactorily explained and as such the Trial Court should have allowed the prayer under Section 311 Cr.P.C., considering the materials on record, while carrying out its function of administration of criminal justice to meet the ends of justice.
The accused/opposite party herein shall have ample opportunity and the liberty to counter the materials to be brought on record by the petitioner.
The object underlying Section 311 of the Code is that there may not be failure of justice on account of mistake of either party in bringing the valuable evidence on record or leaving ambiguity in the statements of the witnesses examined from either side - In the present case, the documents sought to be brought on record are essential for arriving at a just decision and as such is to be allowed for the ends of justice.
Revision allowed.
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2024 (1) TMI 328 - SUPREME COURT
Persistent disregard for judicial directives and a lackadaisical approach to legal and financial obligations - High Court took a firm stance against the appellant’s continued failure to fulfil his financial obligations, culminating in the cancellation of his bail and suspension of sentence - HELD THAT:- The complainant was entitled to receive a total amount of Rs. 4,63,50,000/-. The undertaking as also the order dated 03.07.2018 clearly mention that both of them will pay the amount equally as agreed by and between them and it further contains a stipulation that in default of the payment by either of them as per their agreed share in the settlement, they shall be held liable and prosecuted as per law.
The settlement between the two directors i.e. the appellant and the intervenor is inter se these two only and the complainant is not bound by the same. Complainant’s agreement or consent was only to the extent of accepting Rs. 4,63,50,000/- only. He was not a signatory to the agreement which was signed by the two parties. Admittedly, both the appellant and the intervenor were Chairman and Vice-Chairman of the company AGPL and, therefore, were convicted by the Trial Court and their conviction was affirmed by the Appellate Court.
There are no illegality in the order passed by the High Court. The appeal is accordingly dismissed with costs quantified at Rs. 5 lakhs to be paid to the respondent No. 2 (Complainant) within four weeks from today. It is clarified that this amount of costs will not be adjusted against the compensation awarded to the respondent No.2 but will be in addition to it.
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2024 (1) TMI 327 - SC ORDER
Granting payment of revised rates to take care of escalated cost of work executed by the claimant and the work executed beyond the originally stipulated time i.e., 6.5.1992 - It was held by High Court that the arbitrator’s award being patently illegal, unreasonable, contrary to public policy, the Court below exercising the power under Section 34(2) of the Act is sustainable. At any stretch of imagination, it cannot be construed as mere re-appreciation of evidence.
HELD THAT:- The appeal is allowed in terms of the signed reportable judgment.
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2024 (1) TMI 295 - SUPREME COURT
Modification of the arbitral award as carried out by the learned Civil Judge as confirmed by the High Court - Whether the petitioner made out the proper grounds that the award passed by the arbitrator is not supported by sound reasonings and it is in arbitrary nature and it is liable to be set aside?
HELD THAT:- In the instant case, the only provision under which the award could have been assailed was for it to have been in conflict with the public policy of India.
A perusal of the judgment and order of the learned Civil Judge, in the considered view of this Court, does not reflect fidelity to the text of the statute. Nowhere does it stand explained, as to, under which ground(s) mentioned under Section 34 of the A&C Act, did the Court find sufficient reason to intervene. In fact, quite opposite thereto, the Court undertook a re-appreciation of the matter, and upon its own view of the evidence, modified the order.
The reasons recorded by the learned Civil Judge for modifying the arbitral award, as reflected from a perusal thereof, have been recorded in an earlier section of the judgment. None of those reasons even so much as allude to the award being contrary to the public policy of India, which would enable the court to look into the merits of the award.
The reasons assigned by the Court under Section 34 of the A &C Act, are totally extraneous to the controversy, to the lis between the parties and not borne out from the record. In fact, they are mutually contradictory.
The award passed by the learned Arbitrator is “patently illegal, unreasonable, contrary to public policy.” There is no reason forthcoming as to how the holding of the learned Arbitrator flies in the face of public policy - it cannot be doubted that the Claimant-Appellant is entitled to interest.
In the absence of compliance with the well laid out parameters and contours of both Section 34 and Section 37 of the A&C Act, the impugned judgement(s) are required to be set aside. Consequently, the award dated 18th February 2003 of the learned Arbitrator is restored, for any challenge thereto has failed.
Appeal allowed.
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2024 (1) TMI 294 - SUPREME COURT
Validity of the detention order - refusal of the High Court of Calcutta to set aside the order of detention passed by the respondents - Smuggling of gold and foreign currencies - bounden duty of the authorities in serving the grounds of detention containing such grounds which weighed in the mind of the detaining authority in passing the detention order - HELD THAT:- There is a subtle difference between the background facts leading to detention order and the grounds of detention. While the background facts are not required in detail, the grounds of detention which determine the detention order ought to be found in the grounds supplied to the detenue. In other words, the knowledge of the detenue is to the subjective satisfaction of a detaining authority discernible from the grounds supplied to him. It is only thereafter that a detenue could be in a better position to take a decision as to whether he should challenge the detention order in the manner known to law. This includes his decision to make a representation to various authorities including the detaining officer. Therefore, an effective knowledge qua a detenue is of utmost importance.
To what extent a communication can be made both orally and in writing’? - HELD THAT:- In a case where a detenue is not in a position to understand the language, a mere verbal explanation would not suffice. Similarly, where a detenue consciously declines to receive the grounds of detention, he has to be informed about his right to make a representation. In such a scenario, the question as to whether the grounds of detention contained a statement that a detenue has got a right to make a representation to named authorities or not, pales into insignificance. This is for the reason that a detenue despite refusing to receive the grounds of detention might still change his mind and receive them if duly informed of his right to challenge a detention order by way of a representation - in a case where a detenue receives the ground of detention in the language known to him which contains a clear statement over his right to make a representation, there is no need for informing verbally once again. Such an exercise, however, would be required when the grounds of detention do not indicate so.
The grounds of detention forming the basis of the satisfaction of the detaining authority, were made known to the detenue. He cannot seek all the facts, including access to the telephonic conversation relied on, especially when he did not exercise his right to make the representation. It is pertinent to mention that we are only dealing with the validity of the detention order and not a regular criminal case against the accused.
There are no ground to interfere with the impugned order passed by the High Court of Calcutta - appeal dismissed.
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2024 (1) TMI 174 - SUPREME COURT
Separation of powers - exercise of criminal contempt jurisdiction - practice of frequently summoning government officials to court - Seeking an increase in the allowance granted to former judges of the High Court for domestic help and other expenses.
Whether the High Court had the power to direct the State Government to notify Rules proposed by the Chief Justice pertaining to post-retiral benefits for former Judges of the High Court? - HELD THAT:- The High Court, acting on the judicial side, could not compel the State Government to notify Rules proposed by the Chief Justice in the purported exercise of his administrative powers. Policymaking by the government envisages various steps and the consideration of various factors, including local conditions, financial considerations, and approval from various departments. The High Court cannot use its judicial powers to browbeat the State Government to notify the Rules proposed by the Chief Justice. As the Rules were promulgated by the Chief Justice without competence, at best, they amounted to inputs to the State Government. The State Government was free to constructively consider the desirability of the Rules within its own decision-making apparatus. Therefore, the High Court acted beyond its jurisdiction under Article 226 by frequently summoning officers to expedite the consideration of the Rules and issuing directions to notify the Rules by a fixed date, under the threat of criminal contempt.
Whether the power of criminal contempt could be invoked by the High Court against officials of the Government of Uttar Pradesh on the ground that the application for recall was ‘contemptuous’? - HELD THAT:- In the present case, the State of Uttar Pradesh was availing its legitimate remedy of filing a recall application. From a perusal of the record, it appears that the application was filed in a bona fide manner. Not only had the Finance Department raised its concerns regarding the competence of the Chief Justice before the High Court but its previous conduct, including file notings of the department and letters to the Central Government, indicate that this objection had been raised by them in the past. The legal position taken by the Government in the recall application was evidently based on their desire to avail their legal remedy and not to willfully disobey the First Impugned Order.
The objections raised by the Government of Uttar Pradesh with regard to legal obstacles in complying with the First Impugned Order were never adjudicated by the High Court. Instead, the High Court regarded the objection as an attempt to obstruct justice, without even a cursory attempt to provide reasons. Applying the standards delineated above, it is clear that the actions of the government of Uttar Pradesh did not constitute even ‘civil contempt’ let alone ‘criminal contempt’. The circumstances most definitely did not warrant the High Court acting in haste, by directing that the officials present before the court be taken into custody. This summary procedure, although, permitted under Section 14 of the Contempt of Courts Act cannot be invoked as a matter of routine and is reserved for only extraordinary circumstances.
The invocation of criminal contempt and taking the government officials into custody was not warranted.
Summoning of Government Officials before Courts - HELD THAT:- Courts must refrain from summoning officials as the first resort. While the actions and decisions of public officials are subject to judicial review, summoning officials frequently without just cause is not permissible. Exercising restraint, avoiding unwarranted remarks against public officials, and recognizing the functions of law officers contribute to a fair and balanced judicial system. Courts across the country must foster an environment of respect and professionalism, duly considering the constitutional or professional mandate of law officers, who represent the government and its officials before the courts. Constantly summoning officials of the government instead of relying on the law officers representing the government, runs contrary to the scheme envisaged by the Constitution.
Standard Operating Procedure (SOP) on Personal Appearance of Government Officials in Court Proceedings, prescribed.
The impugned orders are set aside - appeal disposed off.
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2024 (1) TMI 77 - ALLAHABAD HIGH COURT
Cheating - petitioner company had not only syphoned the money from the banks but have also not paid the cane dues to the farmers, who had supplied the sugar cane to the petitioner-Company - Validity of impugned communication - direction to respondent no.1, State Bank of India to convene a meeting of the Joint Lenders’ Forum forthwith, in order to finalize the Settlement Proceedings, in accordance with the provisions of the RBI Circular dated 07.06.2019.
HELD THAT:- The RBI guidelines are absolutely clear that, if a fraud is committed by the unscrupulous borrower by removal of stocks/hypothecating and disposing of the stocks, inflating the value in the stock statement and drawing excess bank finance, diversion of funds outside the borrowing unit and also due to managerial failure leading to the unit becoming sick and due to laxity in effective supervision, the banks have to report to the CBI. The instant case clearly falls under the ambit of Clause 3.2.1 and 3.2.4 where the unscrupulous borrower enjoy credit facilities under valuable banking arrangement after defrauding one of the financial banks continue to enjoy facilities of other financial banks and in some cases availed even higher limit at those banks.
As per the RBI Guidelines it is mandatory for the banks before approval of the loan to carry out a proper due diligence, credit appraisal, to consider the risk report and follow all the norms laid down. It is clearly apparent from the way the loans were sanctioned and disbursed that the banks have failed to carry out regulatory compliances. Even adequate security was not taken before disbursing the loans. A number of loans were given on the personal guarantee of two promoters, whose net-worth was far less than the loans taken by them from the banks.
It is surprising that none of the banks while sanctioning or disbursing the funds have ever checked the background of the petitioner-company. The petitioner-company was already defaulting and was NPA in the other banks but still the other banks went ahead with sanctioning huge amount of loan to the petitioner without any proper collateral security or documentation.
This is a case, which shocks conscience of the Court as to how few of the bank officers in connivance of the petitioner had advanced almost Rs.900 crores, of public money and had allowed the petitioner to syphon away the funds and did nothing but were the mute spectators when the entire fund was syphoned off. Even after the entire amount was syphoned off, the banks did not take any effective steps to recover the said amount - The RBI Circular dated 01.07.2009 mandates all the banks for classification and reporting of fraud. The said Circular does not provide any exemption or relaxation to the banks not to report regarding fraud committed by unscrupulous borrowers. Even, Clause-6 of the Circular also mandates all the Public Sector Banks to report to the Fraud Cell of CBI in cases of fraud involving more than Rs.5 crores.
In case, the CBI finds that there is a case of money laundering as per the provisions of Prevention of Money Laundering Act, 2002 they may also refer the matter to the Enforcement Directorate and take help to recover the said amount - It is further directed that the petitioner will join the investigation and cooperate with the investigation team and if they do not do so, it is open for the investigation agency to proceed against the petitioner in accordance with law. The authorities should endeavour to find out the money trail, where it has been syphoned off and parked.
Petition disposed off.
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2024 (1) TMI 4 - SUPREME COURT
Length / Duration of detention - preventive detention - judicial reviewability - White Collar Offender - local limits of the jurisdiction of a District Magistrate or a Commissioner of Police.
Detention Order passed under section 3(2) of the Act - whether such ‘subjective satisfaction’ of the Commissioner stands scrutiny on application of the requisite tests? - HELD THAT:- The existing legal framework for maintaining law and order is sufficient to address like offences under consideration, which the Commissioner anticipates could be repeated by the Detenu if not detained. We are also constrained to observe that preventive detention laws—an exceptional measure reserved for tackling emergent situations—ought not to have been invoked in this case as a tool for enforcement of “law and order”. This, for the reason that, the Commissioner despite being aware of the earlier judgment and order of the High Court dated 16th August, 2021 passed the Detention Order ostensibly to maintain “public order” without once more appreciating the difference between maintenance of “law and order” and maintenance of “public order”. The order of detention is, thus, indefensible.
Whether there was proper application of mind to all relevant circumstances or whether consideration of extraneous factors has vitiated the Detention Order? - HELD THAT:- Whenever an accused is tried for an offence under a penal law which carries a maximum sentence, the Court is obliged while imposing sentence to apply its mind to the specific facts and circumstances of the case and to either impose maximum sentence or a lesser sentence. It has, therefore, a discretion regarding imposition of sentence - The very term “maximum period” in section 13 vests the Government with discretion, allowing it to be exercised while considering whether the detention is to be continued for the maximum period of 12 (twelve) months or any lesser period. In our opinion, the relevant provisions of the Act have to be so read as to inhere a safeguard against arbitrary exercise of discretionary power.
The period of detention ought to necessarily vary depending upon the facts and circumstances of each case and cannot be uniform in all cases. The objective sought to be fulfilled in each case, whether is sub-served by continuing detention for the maximum period, ought to bear some reflection in the order of detention; or else, the Government could be accused of unreasonableness and unfairness. Detention being a restriction on the invaluable right to personal liberty of an individual and if the same were to be continued for the maximum period, it would be eminently just and desirable that such restriction on personal liberty, in the least, reflects an approach that meets the test of Article 14.
The detention order not upheld - As a consequence, the impugned judgment and order of the High Court too cannot be upheld. The Detention Order and the impugned judgment and order stand quashed. The appeal stands allowed.
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2024 (1) TMI 3 - HIMACHAL PRADESH HIGH COURT
Dishonour of Cheque - acquittal of accused - accused failed to make the payment despite the receipt of the notice - presumption of consideration under Section 139 of the Negotiable Instruments Act - burden lies upon the accused to rebut the presumption - HELD THAT:- The complainant filed an application to prove the Income Tax Returns submitted by him. The return for the year 2009-2010 was submitted on 16.03.2010 as per the endorsement made on the acknowledgement. He had filed the complaint on 11.03.2010, hence, the Income Tax Return came into existence after filing of the complaint during its pendency - The application has been filed under Section 311 of Cr.P.C. however, the application is in the nature of additional evidence to prove the additional record mainly the Income Tax Return and will properly fall within the definition of Section 391 of Cr.P.C.
It was laid down by the Hon'ble Supreme Court in ASHOK TSHERING BHUTIA VERSUS STATE OF SIKKIM [2011 (2) TMI 1539 - SUPREME COURT] that the power to receive additional evidence must be exercised sparingly in those cases where the Court is satisfied that additional evidence would serve the interest of justice.
Since no plausible reason has been assigned for not producing the additional evidence before the learned Trial court; therefore, it is impermissible to lead the additional evidence in the appeal. Consequently, the present application fails and the same is dismissed.
The complainant did not examine these persons. Thus, the learned Trial Court had rightly doubted the financial capacity of the complainant and had rightly held that the presumption contained in Section 139 of the Negotiable Instrument Act was rebutted. This was a reasonable view taken by the learned Trial Court - the submission that the learned Trial Court had wrongly held that the presumption under Section 139 of the NI Act was rebutted is not acceptable.
The judgment passed by the learned Trial Court was a reasonable one and no interference is required with the same - the present appeal fails and the same is dismissed.
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2024 (1) TMI 2 - HIMACHAL PRADESH HIGH COURT
Dishonour of Cheque - need of new evidence - evidence sought to be led in under Section 311 is noted by the Court for a just decision of a case or not - HELD THAT:- The exercise of the widest discretionary power under Section 311 Code of Criminal Procedure should ensure that the judgment should not be rendered on inchoate, inconclusive speculative presentation of facts, as thereby the ends of justice would be defeated - The exercise of power under Section 311 Code of Criminal Procedure should be resorted to only with the object of finding out the truth or obtaining proper proof for such facts, which will lead to a just and correct decision of the case.
The power under Section 311 Code of Criminal Procedure must therefore, be invoked by the Court only in order to meet the ends of justice for strong and valid reasons and the same must be exercised with care, caution and circumspection. The Court should bear in mind that fair trial entails the interest of the accused, the victim and the society and, therefore, the grant of fair and proper opportunities to the persons concerned, must be ensured being a constitutional goal, as well as a human right.” - In present case, Trial Court, after going through statement Ex. DW-3/A and after taking into consideration evidence before it, including Ex.DW-3/A, and considering the rival contentions of the parties, concluded that it appeared to be just and important to allow the application for adjudication of the complaint and, therefore, after recording that though application was filed at a belated stage, in the interest of justice, allowed the application with further order to compensate the complainant with costs of ₹ 1,000/-.
The Trial Magistrate has not committed any irregularity, illegality or perversity in the impugned order, and, therefore, it is not a fit case to exercise jurisdiction under Section 482 Cr.P.C. - complainant-petitioner has failed to make out a case to rebut the satisfaction recorded by the Trial Magistrate with respect to necessity of allowing the application for just decision of the case.
The present petition is dismissed and disposed of.
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2024 (1) TMI 1 - KERALA HIGH COURT
Dishonour of Cheque - acquitted of the charges - vicarious liability of Managing Director for the offence committed by the company - HELD THAT:- In the case on hand, the 1st accused-company owed amount to the complainant/1st respondent. Admittedly the revision petitioner was the Managing Director of that company and he issued that cheque in his capacity as its Managing Director. When the company is found not guilty of the offence alleged, the Managing Director cannot be held vicariously liable for the offence committed by the company. No appeal or revision has seen preferred by the complainant/1st respondent against the acquittal of the 1st accused-company. So, that verdict has become final. So much so, the revision petitioner Managing Director cannot be held liable as the company was acquitted, finding that no offence was committed by the company. The revision petitioner in his personal capacity did not owe any amount to the complainant/ 1st respondent and Ext.P2 cheque was issued not towards discharge of any personal liability of the revision petitioner.
The liability of persons referred to in Section 141 of the N.I Act is coextensive with that of the company, firm or association of individuals, in a prosecution under Section 138 of the N.I Act. When it is found that the company has not committed the offence, and it is acquitted, its directors are not liable to be convicted, for the offence for which the company has been acquitted.
The finding of the appellate court that, the revision petitioner/2nd accused has committed an offence punishable under Section 138 of the N.I Act in spite of acquittal of the 1st accused-company, is liable to be set aside - the impugned judgment is set aside and the revision petitioner is found not guilty of the offence punishable under Section 138 of the N.I Act and he is acquitted.
Revision petition allowed.
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2023 (12) TMI 1236 - HIMACHAL PRADESH HIGH COURT
Recovery of dues - priority over charges - whether the different departments of the State including Excise and Revenue will have priority over the secured creditors’ debt? - HELD THAT:- It would be evident from the replies filed by the respondents that they have nowhere disputed the lien of the State Bank of India as per Section 26 D noted and entered in the CERSAI (Annexure P-2), dated 06.03.2013, which clearly establishes the fact that the petitioner-Bank is not only a secured creditor but has created the first charge over the property in question as far as back in the year, 2013. Whereas the charge of respondents No. 1 and 2 had been created and reflected in revenue record vide rapat No. 459, dated 09.07.2015 and that of respondent No. 3 only vide Rapat No. 173, dated 05.02.2018.
Once the petitioner is a secured creditor and has moreover created the first charge over the property, then obviously, it has the first right to realise its dues and this question is no longer res integra in view of the authoritative pronouncement of the Hon'ble Supreme Court in Punjab National Bank Vs. Union of India & Ors. [2022 (2) TMI 1171 - SUPREME COURT].
The legal position has thereafter been reiterated in a recent judgment of this Court in Mankind Life Sciences Private Limited vs. The State of Himachal Pradesh & Anr., [2023 (10) TMI 867 - HIMACHAL PRADESH HIGH COURT], wherein it was held [2022 (2) TMI 1171 - SUPREME COURT].
This Court is left with no other option, but to allow the instant petition by directing respondents to remove the red entry qua the property in question made in the revenue record i.e. Rapat No. 459, dated 09.07.2015 and Rapat No. 173, dated 05.02.2018 forthwith.
The instant petition is allowed.
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2023 (12) TMI 1235 - KERALA HIGH COURT
Dishonour of Cheque - rebuttal of presumption - main reason asserted both for dislodging execution of Ext.P1 and lack of consideration is that the similarity of handwriting in it with that in Ext.X1. PW1 has no case that Ext.P1 was in the handwriting of the petitioner - HELD THAT:- The petitioner did not adduce any evidence. It is true that in order to rebut the presumption in respect of a cheque, the accused can rely on the evidence and materials submitted by the complainant. The only thing is that the accused must be able to substantiate his case by preponderance of probabilities. The case set up by the petitioner during the cross-examination of PWs.1 to 3 and also in his answers to the question put to him under Section 313(1)(b) of the Code is that the cheque was issued as a security in respect of the transactions between himself and the 1st respondent - Lack of signature of PW1 in two pages of Ext.P6 does not assume much importance since its execution is proved by the evidence of PW3 and it is in favour of the 1st respondent. It was after considering the aforesaid evidence in detail the courts below concurrently held that the petitioner failed to rebut the presumption available under Section 139 of the N.I. Act in respect of Ext.P1.
The power of revision under Section 401 of the Code is not wide and exhaustive. The High Court in the exercise of the powers of revision cannot re-appreciate evidence to come to a different conclusion, but its consideration of the evidence is confined to find out the legality, regularity and propriety of the order impugned before it. When the findings rendered by the courts below are well supported by evidence on record and cannot be said to be perverse in any way, the High Court is not expected to interfere with the concurrent findings by the courts below while exercising revisional jurisdiction.
This Court is not expected to substitute the concurrent finding of the court below with a different view unless such findings are perverse and against the evidence - the revision lacks merits and liable to be dismissed - the revision petition is dismissed.
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2023 (12) TMI 1203 - DELHI HIGH COURT
Dishonour of Cheque - restoration of complaint - whether the negligence either on the part of the petitioner or his counsel in prosecution of the complaint can be a ground for not restoring the complaint? - HELD THAT:- The present complaint pertains to cheques total amounting to Rs.89,00,000/- which were dishonoured due to insufficient funds. There is no dispute by the respondent regarding the fact that the said cheques were signed and issued by him and also regarding the dishonour of the cheques on the ground 'Funds Insufficient'. The petitioner is stated to be a qualified doctor. The petitioner was under the impression that he would be adequately represented by his previous counsel. The various orders passed by the trial court are reflecting that the petitioner and his counsel were not diligent in the prosecution of the complaint. However, mere negligence either on the part of the petitioner or his counsel in prosecution of the complaint should not be a ground for not restoring the complaint. The petitioner cannot be allowed to be suffer due to the negligence of his previous counsel.
The impugned order dated 07.12.2016 passed by the trial court is set aside - the complaint is ordered to be restored to its original number before the trial court subject to the cost of Rs.25,000/- to be paid by the petitioner to the respondent on the next date of hearing before the trial court.
The petitioner and the respondent are directed to appear in person before the trial court on 15.01.2024 at 2:30 p.m. for further directions.
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2023 (12) TMI 1202 - HIMACHAL PRADESH HIGH COURT
Dishonour of Cheque - discharge of legal liability or not - Society is not a body corporate - applicability of Section 141 of the Negotiable Instruments Act - HELD THAT:- Section 141 of the Negotiable Instruments Act deals with the liability of the Company and provides that where the offence is committed by a Company, every person who, at the time the offence was committed, was in charge of, and was responsible to the Company for the conduct of its business as well as the company, shall be deemed to be guilty of the commission of the offence. It is apparent from the bare perusal of the provisions that in the case of a Company, the Company as well as the office bearers are liable. Hence, the company is primarily liable and the office bearers are vicariously liable.
It was laid down by the Hon'ble Supreme Court in ANEETA HADA VERSUS GODFATHER TRAVELS & TOURS (P.) LTD. [2012 (5) TMI 83 - SUPREME COURT] that it is not permissible to prosecute the Directors in the absence of the Company - in view of the binding precedents of the Hon'ble Supreme Court, the submission that the prosecution of the Company is necessary before prosecuting its office bearers has to be accepted as correct.
It is an admitted position that the Himalayan Mahila Avam Jan Kalyan Sansthan is registered under the Societies Registration Act. Section 14 of the H.P. Societies Registration Act provides that every Society shall be a body corporate by the name under which it is registered having perpetual succession and a common seal - This Section specifically provides that the Society shall be a body; hence, the submission that the Society is not a body corporate is not acceptable.
The complainant could not have filed a complaint against the petitioner and respondent no. 3 without impleading the Company to an accused. The prosecution of the petitioner in the absence of the Company is bad - the complaint titled Mukesh Kumar vs Anjana Kumari and another quashed qua the petitioner pending before the learned Additional Chief Judicial Magistrate, Sarkaghat against the petitioner and the consequent proceedings arising out of the same are ordered to be quashed qua the petitioner.
Petition allowed.
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2023 (12) TMI 1056 - MADHYA PRADESH HIGH COURT
Dishonour of Cheque - punishment to accused with jail sentence which may be extended to two years or with fine which may extend to twice the amount of the cheque or with both - HELD THAT:- It appears that under section 138 of Negotiable Instruments Act, there is a specific provision that court has empowered to punish the accused with jail sentence which may be extended to two years or with fine which may extend to twice the amount of the cheque or with both.
In view of the law laid down by the Hon'ble Apex court in Surinder Singh Deswal [2019 (5) TMI 1626 - SUPREME COURT], the first appellate court is conferred with the power to direct the applicant to deposit such amount pending appeal which shall be minimum 20% of fine or compensation awarded by the trial court.
The impugned order dated 19.1.2023 passed by the first appellate court appears to be just and proper which does not suffer from any illegality or irregularity - this criminal revision petition is accordingly dismissed by affirming the order passed by the first appellate court. The applicant is directed to deposit the said amount before the trial court within a period of one month from the date of receipt of certified copy of this order.
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2023 (12) TMI 1055 - BOMBAY HIGH COURT
Dishonour of Cheque - compounding of offence - CIRP proceedings have been initiated against the Accused company and its directors - whether the present case is an appropriate case where the consent of non-applicant no.2 for compounding the offence, could be ignored? - HELD THAT:- In the present case, the complaint has been filed on 29.03.2018, the summons is said to have been issued in April, 2018. Advocates appeared through counsel. On 11.12.2018 the applicants have filed an application seeking compounding of offence. Demand draft of the entire amount of cheque was also annexed. Strictly speaking, the applicants have not filed the application on 1st or 2nd hearing of the case but have filed the same on third hearing of the case which can be said to be an initial stage. This application has been filed in response to the summons issued by the Court making it clear that if the applicants would make an application for compounding of offence at the first or second hearing of the case, the compounding may be allowed.
The non-applicant no.2, thus, appears to have raised his claim for recovery of the amount on 03.01.2018 before the IRP. Admissible recovery, whether of Rs.3 crores or otherwise, will be considered before the IRP and in terms of the provisions of the IBC Code, 2016. In the circumstances, to not offer consent on the ground that the applicants owe dues to the non-applicant no.2 to the tune of Rs. 3 crores is, in my considered opinion, an abuse of process of law and, therefore, by invoking the jurisdiction u/s 482 of the Code, this attempt will have to be and stands nipped down.
Whether it will be permissible for six accused (the present applicants) out of twelve, to seek compounding of offence? - HELD THAT:- The applicants have referred to the judgment of the Allahabad High Court, in the case of GAGAN PAL SINGH AHUJA AND ORS VERSUS STATE OF U.P. AND ORS. [2023 (5) TMI 1280 - ALLAHABAD HIGH COURT], which was required to consider whether piecemeal compromise and compounding thereof is permissible and it was held that the scope and ambit of Section 482 Cr.P.C. is in much wider than that of Section 320 of Cr.P.C.
The non-applicant is getting adequate compensation. In the circumstances, having given my thoughtful consideration to the attending circumstances, the request to compound the offence will have to be allowed.
The present case appears to be a fit case where powers under Section 482 of the Code must be exercised, considering the peculiar facts and circumstances of the case - criminal application allowed.
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2023 (12) TMI 948 - DELHI HIGH COURT
Dishonour of Cheque - present complaint was filed without appreciating that the petitioner was not responsible for the conduct of the business of the Company at the relevant time - complaint does not contain any specific allegation against the petitioner to attract sections 138 and 141 of the NI Act - violation of principles of natural justice - HELD THAT:- Section 141 of the NI Act provides for a constructive liability which is created by a legal fiction. Section 141 of the NI Act being a penal provision should receive strict construction and compliance. If the accused played insignificant role in the affairs of the company, it may not be sufficient to attract the constructive liability under section 141 of the NI Act. The petitioner is claiming that he was appointed as the Regional Sales Manager in the accused no. 1 with effect from 01.10.2015 vide offer letter dated 28.05.2015 at a monthly salary of Rs. 50,000/-. The accused nos. 2 and 3 are the first director of the accused no. 1 as per Memorandum of Association.
If the petitioner was not responsible for affairs of the accused no. 1 despite being promoted as Additional Director of the accused no. 1, it can only be established and proved in accordance with law during the trial of the complaint under section 138 of NI Act. The petitioner has not placed or submitted any document which can reflect that the petitioner has never participated in conduct of business of the accused no. 1. The petitioner cannot be absolved from his liability qua the cheques in question by merely pleading that he was not responsible for day to day affairs and conduct of the business of the accused no. 1. The arguments advanced by the counsel for the petitioner are without any legal support.
The present complaint cannot be dismissed qua the petitioner. The present petition alongwith pending application is accordingly dismissed.
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2023 (12) TMI 947 - HIMACHAL PRADESH HIGH COURT
Dishonour of Cheque - Insufficient Funds - legality of judgment of acquittal - existence of legally enforceable debt or not - accused had issued the cheque in discharge of the liability of Surinder Singh and the learned Trial Court erred in ignoring this position - HELD THAT:- The absence of any agreement will not make the case of the complainant doubtful - the cross-examination of the complainant or his witness was insufficient to rebut the presumption and it was duly proved on record that the accused had issued a cheque in discharge of his liability. Learned Trial Court erred in holding otherwise.
Hem Chand (CW-1) stated that the cheque(Exhibit C-1) was deposited with the bank. The cheque was dishonoured due to insufficient funds. He admitted in his cross-examination that the account of the accused was closed. It is apparent from the statement of this witness that the cheque was dishonoured due to insufficient funds, was not challenged in the cross-examination and has to be accepted as correct.
Testimony of this witness will not make the case of the complainant suspect because the cheque was drawn on Oriental Bank of Commerce and the official of the said bank specifically stated that the cheque was dishonoured due to insufficient funds. Therefore, the next requirement that a cheque was dishonoured due to insufficient funds has been duly established - The complainant stated that he issued the legal notice (Ext. C-3) asking the accused to make the payment within 15 days. Postal receipts (C-4 and C-5) and acknowledgement (C-6) corroborates his testimony. The acknowledgement shows that the registered cover was returned after delivery; therefore, it is duly proved that legal notice was duly served.
It was duly proved that the cheque was issued in discharge of the legal liability, which was dishonoured due to insufficient funds and the accused had not made the payment despite receipt of a valid notice of demand - the complainant has proved all the ingredients for the commission of an offence punishable under Section 138 of the Negotiable Instruments Act.
The learned Trial Court did not consider the presumption attached to the cheque and the suggestions made to the complainant and his witnesses. It had taken a view which could not have been taken by any reasonable person. The judgment of the learned Trial Court proceeds in ignorance of the settled position of law and the same is liable to be interfered with even in an appeal against the acquittal.
The present appeal is allowed.
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2023 (12) TMI 946 - MADRAS HIGH COURT
Seeking immediate action in furtherance to the lock and seal notice and demolish the unauthorised construction of the building - HELD THAT:- When the matter is taken up for hearing, the learned Standing Counsel appearing for the Chennai Corporation/3rd respondent would state that the building in question is now under lock and seal and to settle scores between the parties, they have to approach the appropriate Forum.
Seeking to contribute funds for completing the construction of the unfinished apartments and also to compensate the home buyers for the inordinate delay in completion of the construction and for other reliefs - HELD THAT:- It has been stated that though M/s. Vasavi Builders /25th respondent herein is a partnership firm, most of the financial transactions of Vasavi Builders with that of the Home Buyers were exercised in the Account of M/s.Vasavi Housing and Infrastructure Limited. Further, Section 60(3) of Insolvency and Bankruptcy Code 2016 clearly states that any case relating to the Corporate Debtor pending in any Court or Tribunal shall be transferred to the Adjudicating Authority (NCLT Chennai) dealing with the Insolvency Resolution Process or Liquidation Proceedings of such Corporate debtor. In the present case, the connected proceedings are pending before National Company Law Tribunal, therefore, any further action can be settled before NCLT.
Petition closed.
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