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Indian Laws - Case Laws
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2023 (11) TMI 1261 - ANDHRA PRADESH HIGH COURT
Grant of Regular Bail - misappropriation and transfer of money into various shell companies - Hawala transactions - seeking to include the additional conditions in the interim bail order - HELD THAT:- It is evident from the record that the petitioner has been shown as an accused one year and ten months after the registration of the crime. The case against him was filed just before his arrest. There is no indication on the record that, during this period of one year and ten months, the petitioner interfered with the investigation. The Prosecution has not made any such claim either.
This Court directed the petitioner to abstain from making any public comments relating to the case and from organizing or participating in public rallies and meetings. In the said order, this Court observed that the petitioner holds the position of the National President of Telugu Desam Party and restricting him from appearing before print, electronic media, or any social media platform to make statements or express opinions during his interim bail period affects his fundamental right to freedom of speech. As this Court granted interim bail on medical grounds, this Court thought fit that the petitioner was not supposed to conduct public meetings and rallies.
This Court directed the petitioner, while disposing of interim bail application on medical grounds, to place the details about his treatment in a closed cover to the Superintendent, Central Prison, Rajamahendravaram, at the time of his surrender. In view of granting of regular bail, this Court views that a direction can be given to the petitioner to file such medical record before the Special Court, Vijayawada, on or before 28.11.2023.
Accordingly, the interim bail granted to the petitioner/A.37 vide common order dated 31.10.2023 is made absolute, and the petitioner/A.37 is ordered to be released on regular bail on the bail bond already furnished by him in respect of this case. However, the condition imposed in respect of his organizing or participating in public rallies and meetings shall stand relaxed from 29.11.2023 onwards. The petitioner/A.37 is directed to produce the medical reports, regarding his treatment, before the Special Court, Vijayawada on or before 28.11.2023 instead of producing the same before the Superintendent, Central Prison, Rajamahendravaram. The remaining conditions imposed in the common order shall be followed by the petitioner/A.37 scrupulously.
This Criminal Petition is disposed of.
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2023 (11) TMI 1245 - SC ORDER
Retention of certain goods as security - claiming release of goods - it was held by High Court that Application is accordingly allowed and disposed of by appointing Mr. S. Muralidhar, former Chief Justice of the Orissa High Court to act as the Arbitrator subject to the learned Arbitrator communicating his consent in the prescribed format to the Registrar, Original Side of this Court within three weeks from date.
HELD THAT:- No case for interference under Article 136 of the Constitution of India is made out - However, it will be always open for the petitioner to raise all permissible objections/contentions before the Arbitral Tribunal in accordance with law.
The Special Leave Petition is accordingly dismissed.
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2023 (11) TMI 1240 - SUPREME COURT
Time Limitation - challenge to award of the Facilitation Council - award set aside on the ground that the claim was barred by limitation - Articles 226/227 of the Constitution - HELD THAT:- The appellant failed to avail of the remedy under Section 34. If it were to do so, it would have been required to deposit seventy-five per cent of the decretal amount. This obligation under the statute was sought to be obviated by taking recourse to the jurisdiction under Articles 226/227 of the Constitution. This was clearly impermissible.
The appellant sought to urge that the view of the Facilitation Council to the effect that the provisions of the Limitation Act 1963 have no application, which has been affirmed by the Division Bench in the impugned judgment, suffers from a perversity, and hence a petition under Article 226 of the Constitution ought to have been entertained. This submission cannot be accepted for the simple reason that Section 18 of the MSMED Act 2006 provides for recourse to a statutory remedy for challenging an award under the Act of 1996. However, recourse to the remedy is subject to the discipline of complying with the provisions of Section 19. The entertaining of a petition under Articles 226/227 of the Constitution, in order to obviate compliance with the requirement of pre-deposit under Section 19, would defeat the object and purpose of the special enactment which has been legislated upon by Parliament.
The decision of the Division Bench is affirmed by holding that it was justified in coming to the conclusion that the petition under Articles 226/227 of the Constitution instituted by the appellant was not maintainable - appeal disposed off.
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2023 (11) TMI 1235 - SUPREME COURT
Setting aside of order of penalty of withholding of 50% pension for all times to come, imposed upon the Respondent herein in connection with the disciplinary proceedings initiated on the allegations of sexual harassment.
Whether the Central Complaints Committee committed any egregious error in looking into the second complaint dated 18.09.2012? - HELD THAT:- It is well settled that when it comes to disciplinary proceedings, it is the inquiry authority and the disciplinary authority who could be said to be the fact-finding authority and the courts in exercise of their powers of judicial review should not sit in appeal and reappreciate the evidence or substitute its own findings. The scope of judicial review of the courts is limited only to the propriety of the decision-making process and the fairness of the inquiry procedure as held by this Court in BC. CHATURVEDI VERSUS UNION OF INDIA AND OTHERS [1995 (11) TMI 379 - SUPREME COURT] - As regards the manner in which the court ought to exercise its powers of judicial review in matters of disciplinary proceedings particularly one pertaining to sexual harassment, this Court in APPAREL EXPORT PROMOTION COUNCIL VERSUS A.K. CHOPRA [1999 (1) TMI 522 - SUPREME COURT] observed that the courts should not get swayed by insignificant discrepancies or hyper-technicalities. The allegations must be appreciated in the background of the entire case, and the courts must be very cautious before any sympathy or leniency is shown towards the delinquent. It further held that the courts are obliged to rely on any evidence of the complainant that inspires confidence.
Whether the Central Complaints Committee committed any egregious error in putting questions to the witnesses in the course of the departmental enquiry and thereby vitiating the disciplinary proceedings? - HELD THAT:- The obligation on the part of the Authority to ask the delinquent whether he pleaded guilty or had any defence to make is only in the circumstances, if the delinquent had not admitted any of the articles of charge in his written statement of defence or had not submitted any written statement of defence. Indisputably, in the case on hand, the Respondent had filed his written statement of defence dealing with all allegations on the ten points framed for determination that were enquired into by the Committee and also cross-examined all the witnesses on the same - mere violation of Rule 14(9) of the 1965 CCS Rules would not vitiate the entire inquiry. Rule 14(9) is only procedural.
A four-Judge bench of this Court in MANAGING DIRECTOR. ECIL. HYDERABAD & OTHERS VERSUS KARUNAKAR & OTHERS [1993 (10) TMI 310 - SUPREME COURT] held that in order to determine if prejudice had been caused by a violation of a procedural Rule or facet of natural justice, it must be shown that violation had some bearing either upon the outcome or the punishment imposed.
The High Court completely failed to advert itself to the principles laid down by this Court as aforesaid, and mechanically proceeded to set-aside the order of punishment imposed by the disciplinary authority on the ground that there was nothing to indicate that the Respondent was asked whether he pleaded guilty to the charges imputed in the second complaint without applying the principle of "test of prejudice".
Whether the Central Complaints Committee could be said to have based its findings on mere conjectures and surmises? Whether the case on hand is one of "No Evidence"? - HELD THAT:- If Section 165 of the Indian Evidence Act, 1872 permits a Judge to put questions to the parties or to the witnesses in order to discover or obtain proper proof of relevant facts and this provision being widely used by the judges throughout the country, we fail to understand as to how the complaints committee after being equated with a judge in a judicial proceeding be denied that privilege. However, it would be a different situation if a specific case of personal bias is made out against the members of the committee. After all, the very purpose of the disciplinary proceedings is to reach to the bottom of the fact while affording adequate opportunities to the affected party - the High Court was not correct in taking the view that the proceedings stood vitiated because the Central Complaints Committee put questions to the prosecution witnesses.
Whether the High Court committed any egregious error in passing the impugned judgment and order? - HELD THAT:- This is not a case of "no evidence". Some evidence has come on record to indicate or rather substantiate the allegations of sexual harassment levelled by the complainant. What is most important to note at this stage is that the High Court has not gone into the sufficiency of evidence as it was aware that the law does not permit it to go into the issue of sufficiency of evidence for the purpose of holding a public servant guilty of the alleged misconduct. It is in such circumstances that in the entire judgment the High Court has concentrated only on technical pleas raised by the Respondent. It is only on the issue of point 7(a) that the High Court seems to have taken the view that the findings in that regard are based on conjecture and surmises.
The High Court took the view that in respect of the allegations contained in Point 7(a) which relates to the Respondent making unsolicited phone calls to the complainant, although no evidence of the call recordings had been produced to substantiate the same, yet the Central Complaints Committee accepted the allegations as true, and therefore its findings could be said to be based on conjectures and surmises.
The High Court committed an egregious error in passing the impugned judgment and order - Appeal allowed.
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2023 (11) TMI 1218 - ALLAHABAD HIGH COURT
Illegal mining - Punishment for having excavated over Plot No. 824 Kha - HELD THAT:- In the show cause notice dated 31.5.2022, the District Magistrate, Sonebhadra had directed the petitioner to show cause with regard to the illegal mining over Plot No. 824 Kha but when the order impugned was passed we find that it is with regard to Plot No. 421Kha.
It is also found that the plot, which was mentioned in the show cause notice, had no bearing with the order impugned in the instant writ petition. In the light of above, it is crystal clear that not only is show cause notice badly drafted and incomplete but also the order passed subsequently is inherently misconceived going way beyond the show cause notice issued. Ergo, show cause notice dated 31.05.2022 and the order dated 20.6.2022 are quashed and set aside.
The writ petition is allowed.
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2023 (11) TMI 1216 - DELHI HIGH COURT
Doctrine of Forum non-conveniens - Seeking permission to Appellant to appear for Class X and Class XII examinations - Appellant's father received a message from the Respondent School that due to non-payment of fees for the academic year 2017-2018, the Appellant was debarred from attending the Respondent School - HELD THAT:- On an examination of the peculiar facts and circumstances that have led to the present appeal, it is evident that the grievance of the Appellant emerges from the actions of the Respondent School which is located in Uttar Pradesh. This Court had directed the Respondent School to conduct Grade VIII examinations for the Appellant, not the CBSE. Therefore, contrary to the contention of the Appellant, in effect, the Appellant is seeking compensation from the CBSE not for any decision/action taken by the CBSE but instead due to an alleged failure of the CBSE to regulate the actions of the Respondent School.
It is a settled position of law that where only a small part of the cause of action arises in the territorial jurisdiction of a Court, the same cannot automatically clothe the Court with jurisdiction under Article 226 of the Constitution of India. In such cases, the Court is obligated to follow the doctrine of forum conveniens.
Division Bench of this Court in M/S SHRISTI UDAIPUR HOTELS AND RESROTS (P) LTD VERSUS HOUSING AND URBAN DEVELOPMENT CORPORATION LIMITED [2014 (5) TMI 1231 - DELHI HIGH COURT] dealt with a similar issue and observed that where the most vital parts of the cause of action have arisen elsewhere, the mere presence of the registered office of the Respondent in Delhi would be irrelevant in determining territorial jurisdiction as it amounts to a miniscule part of the cause of action.
The principle emerging from Shristi Udaipur is squarely applicable to the facts of the present case. In essence, the basis of the Appellant's claim for compensation is the loss of an academic year due a delay in examinations for Grade VIII. As the responsibility for conducting the examinations fell on the Respondent School, it is plain that the most vital part of the cause of action arose in Uttar Pradesh, where the Respondent School is located. Moreover, it must also be noted that the Appellant is a resident of Uttar Pradesh. Therefore, on a holistic examination of these circumstances, as the Appellant has failed to produce any material establishing that the grievance caused to her is directly attributable to the actions of the CBSE, we cannot but conclude that this Court is not the appropriate forum for adjudication of this matter.
It must be noted that the doctrine of forum conveniens is invoked to determine the most appropriate forum for adjudication of a dispute and this exercise is undertaken not only for the convenience of the parties but also in the interest of justice. Therefore, this Clause cannot be read in a matter that would permit all cases filed against the CBSE, regardless of the existence of a more appropriate forum, to be adjudicated in the Union Territory of Delhi; the existence of such a clause cannot exempt Courts from invoking the doctrine of forum conveniens especially in cases like the present where no direct actions of the CBSE have been impugned by the Appellant. Thus, the Clause has to be interpreted purposively to include within its ambit only those cases where the cause of action is attributable to the CBSE.
This Court finds no reason to interfere with the Impugned Judgement. Accordingly, the present LPA is dismissed.
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2023 (11) TMI 1211 - SUPREME COURT
Seeking permission to prosecution to produce the report and the certificate under Section 65B of the Indian Evidence Act, 1872 - delay of six years in producing the certificate or not - HELD THAT:- It cannot be inferred that there was delay of six years in producing the certificate. In fact, report received from CFSL, Hyderabad on the basis of the contents of electronic devices dated 29.11.2010 was already placed before the Trial Court on 16.10.2012. In fact, the stand of the prosecution was that when the original electronic devices were already produced and marked MOs, there was no need to produce the certificate under Section 65-B of the Act. Still, as a matter of abundant caution, the same was produced that too immediately after objection was raised by the accused against the production of CFSL report prepared on the basis of the electronic devices seized.
Fair trial in a criminal case does not mean that it should be fair to one of the parties. Rather, the object is that no guilty should go scot-free and no innocent should be punished. A certificate under Section 65-B of the Act, which is sought to be produced by the prosecution is not an evidence which has been created now. It is meeting the requirement of law to prove a report on record. By permitting the prosecution to produce the certificate under Section 65B of the Act at this stage will not result in any irreversible prejudice to the accused. The accused will have full opportunity to rebut the evidence led by the prosecution. This is the purpose for which Section 311 of the Cr.P.C. is there. The object of the Code is to arrive at truth. However, the power under Section 311 of the Cr.P.C. can be exercised to subserve the cause of justice and public interest - In the case in hand, this exercise of power is required to uphold the truth, as no prejudice as such is going to be caused to the accused.
The orders passed by the courts below are set aside - Appeal allowed.
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2023 (11) TMI 1158 - DELHI HIGH COURT
Refund of stamp duty - Stamp papers purchased for registration of immovable property but the same could not be executed - Retention of 10% of the stamp duty - Constitutional Validity of Section 54 of the Indian Stamp Act, 1899 - ultra vires of Articles 265 and 300A of the Constitution of India or not - challenge to Section 54(c) of the Act as being ultra vires of Articles 14, 265 and 300A of the Constitution of India.
The refund claim rejected on the ground that the said application was filed beyond the period of six months from the date of purchase of the E-stamp Certificate.
HELD THAT:- It is settled law that stamp duty is chargeable on the instruments as stipulated in the said Schedule and not the transactions in respect of which the instrument is executed - It is apparent that, the duties in respect of which instruments are chargeable are to be reflected by stamps on those instruments. In terms of Section 11 of the Act, certain instruments may be stamped with adhesive stamps. Section 12 of the Act mandates that adhesive stamps be cancelled once used so that the same cannot be used again.
It is well settled that the right to refund the tax collected is governed by the statute governing the said tax. An assessee who has paid tax does not have any inherent right for refund of tax paid. In view of the above, the petitioner’s contention that the provisions of Section 50(2) of the Act, which provides for retention of 10% of the allowance for stamps is ultra vires to Article 265 of the Constitution of India or falls foul of Article 300A of the Constitution of India, is unmerited.
Section 49 of the Act provides for allowance for spoiled stamps. In terms of Clause (a) of Section 49 of the Act, a Collector can make an allowance in respect of a stamp inadvertently and undesignedly spoiled, obliterated or by error in writing or any other means rendered unfit for the purpose intended, prior to the instrument being executed. Further, an application for allowance is required to be made within the period as prescribed under Section 50 of the Act - Although, a Collector can make an allowance for the stamp paper only if an application is made within the period as prescribed. The life of the stamp paper is not circumscribed by Section 54(c) of the Act.
In the present case, the petitioner has been denied the refund as the condition under Section 54(c) of the Act has not been satisfied. However, if the stamp papers available with the petitioner are inadvertently obliterated or spoiled, the petitioner would have two months thereafter to apply for a refund of the stamp paper due. In our view, if the provisions of Section 54 of the Act are read in the aforesaid manner, the same are clearly arbitrary and unreasonable and are liable to be declared as ultra vires Article 14 of the Constitution of India - It is a well settled that a legislative enactment is presumed to be constitutionally valid unless it is found to be contrary. Additionally, it is also a well settled principle that the courts will, in so far as possible, construe a statute in a manner so that it does not fall foul of the constitution.
The denial of refund of the stamp duty collected even though no duty is payable because the charging event has not occurred and the cause of action for claiming the refund has not arisen, militates against the scheme of providing for allowance of stamps. Clearly, if the provisions of the Act are construed in a manner so as to permit collection and retention of stamp duty, which is not chargeable without any recourse for refund whatsoever, it would run contrary to the scheme of the Act. If Section 54 of the Act is read as restricting the right for seeking refund in a case such as the present one, it would suffer from the vice of arbitrariness and fall foul of Article 14 of the Constitution of India.
The present petition is disposed off by directing the Collector to process the petitioner’s claim for the refund of stamp paper (to the extent of 90% of the E-stamp paper) within a period two weeks from date.
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2023 (11) TMI 1122 - KARNATAKA HIGH COURT
Dishonour of Cheque - no proper service of notice - complainant has not proved his case - do the question of rebuttal arise? - HELD THAT:- Once the cheques are placed before the Court and the petitioner has not denied the signatures available in the cheques, except a general denial that he has not issued the cheques, he has not given any explanation. The Trial Court has rightly drawn the presumption under Sections 118 and 139 of Negotiable Instruments Act and once the issuance of cheque is proved by the complainant, the same has to be rebutted and no such rebuttal evidence is placed by the petitioner. Though he has been examined before the Court, in his chief evidence, except denying the service of notice and issuance of cheques, no material is placed before the Court to substantiate this contention.
The First Appellate Court also having reassessed the material on record, in Para No.13, taken note of both oral and documentary evidence placed on record and with regard to proving of the transaction, the complainant has relied upon Exs.P11 to P17, credit bills and in order to rebut the claim of the complainant, no documents are produced and though the accused took the contention that those three cheques were issued to the son of the complainant towards chit transaction, nothing is stated in his chief evidence that those three cheques were given to the son of the complainant his evidence is silent with regard to the same and the defence has remained as a defence.
Thus, no error committed by the Trial Court and the First Appellate Court in appreciating both oral and documentary evidence placed on record and unless the Trial Court and the First Appellate Court fail to consider the material on record, the question of invoking revisional jurisdiction does not arise. The Court can exercise its revisional jurisdiction, only if the material evidence is not considered by the Courts below and if the order suffers from its legality and correctness. The petitioner has not made out any ground to exercise revisional jurisdiction and there is no merit in the revision - answered in negative.
The revision petition is dismissed.
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2023 (11) TMI 1121 - KARNATAKA HIGH COURT
Dishonour of Cheque - Acquittal of accused - insufficient funds - trial Court has recorded the statement accused/respondent on the basis of affidavit instead of examination-in-chief - Section 145 of Negotiable Instruments Act, 1881.
Whether the appellant/complainant has made out a ground to remand the matter to the trial Court for fresh disposal in accordance with law? - HELD THAT:- On perusal of the provisions of Section 145 of Negotiable Instruments Act, 1881, it is clear that the trial Court has not followed the provisions of Section 145 of the said Act, and the evidence of the accused by way of affidavit is not permissible in law. Relying on the evidence of accused DW1, along with the material contradiction of PW2, the trial Court has acquitted the accused. Since the accused had not adduced his evidence in accordance with law, the same cannot be looked into by this Court. Hence, it is just and proper to remit the matter to the trial Court with a direction to provide opportunity to the accused to adduce his evidence in accordance with law. Accordingly, complainant has made out a ground to interfere with the impugned judgment of acquittal and also to remand the case to the trial Court.
Judgment of acquittal dated 03rd February, 2014 passed in CC No.81 of 2010 by the Additional Civil Judge and JMFC, Ramanagar, is set aside and the case is restored to file - Matter is remitted back to the trial Court with a direction to provide opportunity to the accused to adduce his oral evidence in accordance with law - appeal allowed.
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2023 (11) TMI 1120 - GUJARAT HIGH COURT
Dishonour of Cheque - Amount of cheques are not paid even after statutory notice was served - presumption in favour of complainant - rebuttal of presumption - exercise of jurisdiction under section 482 of Cr.P.C. or Article 226 of the Constitution of India - section 138 of NI Act - HELD THAT:- The Court after prima facie verifying material on record issued process for the offence punishable under section 138 of N.I.Act. The trial of the offence is at large before the learned Trial Court. It is to be noticed that in offence under section 138 of N.I.Act, provision of law provides for presumption under section 139 of N.I.Act - The complainant being holder of the cheques and in view of the fact that signature on the cheques is not denied by the accused / petitioner, legal presumption shall be drawn that cheques were issued for discharge of debt or any other liability. This presumption stands till it has been discharged. Presumption under section 139 is rebuttable presumption. It is system of reverse onus burden.
In case of MS NARAYANA MENON @ MANI VERSUS STATE OF KERALA & ANR. [2006 (7) TMI 576 - SUPREME COURT] the Hon’ble Apex Court has considered sections 118(a), 138 and 139 of Negotiable Instrument Act and held that presumption both under section 118(a) and 139 are rebuttable in nature.
Looking back to the contention raised by the petitioner, it is the case of the petitioner that there is difference in agreement to sell and complaint regarding number of flats and therefore, it cannot be said that questioned cheques were given for discharge of any liability. This argument was canvassed with a view to submit that transaction is different. Cheques in question is given for transaction for flat Nos.C/402 to C/406 as per agreement on record but the complainant has mentioned that cheques in question has been given for transaction for flat Nos.C/202 to C/ 206. Mere there is difference regarding flat numbers in agreement and complaint, it would not attract submission that cheques were not given for any legal liability. There may be typographical mistake.
Burden can be discharged under section 139 of NI Act by the petitioner after leading evidence either by cross examining the complainant or by leading necessary evidence. No mala fide or vexatious claim are found. The case deserves trial. No case is made to exercise power vested under section 482 of Cr.P.C. to quash the proceedings.
Needless to say that jurisdiction under section 482 of Cr.P.C. or Article 226 of the Constitution of India is requires to be exercised in circumspection and sparingly. The person calling Court to exercise such jurisdiction needs to establish from record that proceedings against him is manifestly mala fide and vexatious. In the present case, the petitioner has failed to make out such case.
The petition does not deserve consideration and requires to be dismissed in limine - petition dismissed.
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2023 (11) TMI 1119 - MADRAS HIGH COURT
Dishonour of Cheque - Vicarious liability of director - Section 141(1) of the Negotiable Instruments Act, 1881 - HELD THAT:- Mere extracting the expression used in Section will not satisfy the requirement to hold a director vicariously liable for the offence under Section 138 of Negotiable Instruments Act, 1881. The averment of the complaint must satisfy the test, whether there are averments to prima facie satisfy the Court taking cognizance that the person deemed to be guilty of offence have role in the conduct of the business and in charge of the company - As far as the instant case, the cheque is for the discharge of the loan advanced to the company for its business purpose. The petitioner had stood guarantee for the loan advanced. She cannot deny knowledge of the borrowing or issuance of cheque just because she is not the signatory of the subject cheque.
This Criminal Original Petition is dismissed.
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2023 (11) TMI 1118 - GUJARAT HIGH COURT
Dishonour of Cheque - presumption with regard to existence of consideration amount - onus to rebut the presumption - shifting the burden upon the original accused to prove his case beyond reasonable doubt - HELD THAT:- While responding to such defence, the complainant has fairly accepted the fact about the actual outstanding amount dues from the complainant to be Rs.8,99,000/-, whereas the cheque in dispute appears to be figures of Rs.9,99,000/-. In the opinion of this Court, the aforesaid contradiction goes to the root of the matter. It straightway hit the presumption drawn in favour of the complainant under Section 118(a) of the Negotiable Instruments Act, which permits the Court to raise presumption with regard to existence of consideration amount. Section 139 of the Negotiable Instruments Act further permits the Court to raise presumption with regard to the cheque being issued towards discharge of legally recoverable debt as on the date of the presentation of the cheque. It is a settled legal position that in absence of any challenge to the signature on the disputed cheque, the statutory presumption available under Section 118 and Section 139 of the Act comes into play. The aforesaid statutory provision permits the Court to raise presumption against the respondent accused. The onus is upon the accused on the issuance of cheque to rebut the presumption that the cheque was not issued for discharge of any debt or liability under Section 138 of the Act. However, such presumption is subject to probable defence to be raised by the accused to create doubt with regard to existence of any debt or liability.
In case of Rangappa Vs. Sri Mohan [2010 (5) TMI 391 - SUPREME COURT], the Hon’ble Supreme Court held that the standard of proof to discharge of such presumption can be in the form of probable defence which is weighed on the scale of preponderance of probabilities - As noticed hereinabove, in the present matter, the learned Court below has consciously and carefully taken into consideration this aspect, which has emerged on record to arrive at finding with regard to the discrepancy in the amount dues to be realized from the respondent accused, coupled with the fact that the original complainant has failed to offer any explanation with regard to the additional amount of Rs.1 Lakh - no fault can be found in the approach of the learned Magistrate in shifting the burden upon the original accused to prove his case beyond reasonable doubt. The discrepancy noted in the amount due against the respondent – accused against which the cheque is alleged to have been issued goes to the root of the matter, which can be treated as material contradiction.
In the opinion of this Court, no arguable case is made out to entertain a present application seeking leave to appeal. Hence, present application is hereby rejected - In view of dismissal of the application seeking leave to appeal, Criminal Appeal No.34 of 2023 stands disposed of.
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2023 (11) TMI 1117 - MADRAS HIGH COURT
Dishonour of Cheque - lack of territorial jurisdiction to try the case - bone of contention by the petitioners is that the complainant who was initially maintaining his account in Nanganallur Branch of Indusind Bank, had given a request on 12/04/2022 to transfer his account to Kilpauk Branch - HELD THAT:- At the outset it has to be recorded that, the provisions of Negotiable Instruments Act, 1881 empowers the Magistrate to try complaints under Section 138 of NI Act summarily. Therefore, the trial Court, which has taken cognizance of the complaint and proceeded to try as summary trial, is well within the law and Clause (m) of Section 461 of Cr.P.C will not apply to the facts of this case - At the most, it could be error of taking cognizance of a complaint under Section 190 (1)(a) of Cr.P.C and proceeding thereon. Such irregularity will not vitiate the trial.
Whether the trial Court has assumed territorial jurisdiction, which is not vested on it? - HELD THAT:- Having given request for transfer to Kilpauk Branch and presenting the cheque at Kilpauk Branch, the complaint is filed before Metroplitan Magistrate (FTC-1) Egmore, which deemed to have territorial jurisdiction. The petitioners on receipt of the summons from the Court had participated in the trial cross examined the complainant and also marshalled their witnesses. At the fag end of the trial, he had filed the petition to dismiss the complaint on the ground of lack of jurisdiction. In view of this Court, the request for transfer of his account to Kilpauk Branch made by the complainant on 12/04/2022, which is prior to the presentation of the cheques and subsequent presentation of the cheques at Kilpauk branch saves the complaint from being vitiated. The irregularity what so ever had not caused prejudice to either side, the petition filed after examining the witnesses and at the fag end of the trial is another factor which desists this court to exercise its power under Section 482 Cr.P.C.
In view of the peculiarity of the facts in this case, a strict interpretation of the explanation to Section 142 of Negotiable Instruments Act will be against the spirit of the legislative intend. The trial Court had considered the law and facts, balancing the interest of either side with reasoning had dismissed the petition. On appreciation of law and facts, which are unique to the present case, this Court hold that the order of the trial Court is well based on law and fact and to be confirmed.
Petition dismissed.
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2023 (11) TMI 1116 - MADRAS HIGH COURT
Dishonour of Cheque - validity of acquittal of accused - seeking reversal of conviction imposed - HELD THAT:- The respondent did not refuse the case of the appellant in his chief examination and he took defence stating that the case was filed with other ulterior motive to deny payment of sales commission which was allegedly due to him.
The respondent, in his cross-examination, has admitted that the purchase orders and other defence documents of the respondent did not contain any signatures, which was not credible enough to prove that the respondent has no liability with the appellant. The respondent has admitted in his cross examination, the modus operandi followed by Ex.P.5 to Ex.P.10 and Ex.P.18 to Ex.P.21 which are invoices and stock transfer challans - the defence raised by the respondent also fails to ground for the reasons discussed.
Hence, this Court has no hesitation to hold that in view of the discussion in the preceding paragraphs, the appellant is entitled for statutory presumption and in the absence of any positive evidence much less any evidence to rebut the statutory presumption by the accused, the charge under Section 138 of N.I. Act stands proved and hence, the reasoning rendered by the lower Appellate Court stands vacated and the same is set aside - this Court holds that the appellant has produced sufficient material in support of the charge and the respondent has not let in any positive evidence to rebut the presumption. Consequently, the conviction and sentence passed by the trial Court is hereby restored.
Appeal allowed.
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2023 (11) TMI 1115 - HIMACHAL PRADESH HIGH COURT
Dishonour of Cheque - conviction of accused - settlement arrived at between the parties - compounding of the case - HELD THAT:- Having taken note of the fact that the petitioner accused and the complainant-respondent have settled the matter, the complainant has received the entire amount of cheques and the complainant has no objection in compounding the offence, therefore, this Court sees no impediment in accepting the prayer made on behalf of the accused-petitioner for compounding of offence while exercising power under Section 147 of the Act as well as in terms of guidelines issued by the Hon’ble Apex Court in DAMODAR S. PRABHU VERSUS SAYED BABALAL H. [2010 (5) TMI 380 - SUPREME COURT], wherein the Hon’ble Apex Court has held since Section 147 was inserted by way of an amendment to a special law, the same will override the effect of Section 320(9) of the CrPC, especially keeping in mind that Section 147 carries a non obstante clause.
In K. SUBRAMANIAN VERSUS R. RAJATHI REP. BY P.O.A.P. KALIAPPAN [2009 (11) TMI 1013 - SUPREME COURT], it has been held by the Hon’ble Apex Court that in view of the provisions contained in Section 147 of the Act read with Section 320 of Cr.P.C., compromise arrived at can be accepted even after recording of the judgment of conviction.
Since, in the instant case, the petitioner-accused after being convicted under Section 138 of the Act, has compromised the matter with the complainant and has paid the entire amount of cheques to the complainant, prayer for compounding the offence can be accepted in terms of the aforesaid judgments passed by the Hon’ble Apex Court.
The application is allowed and matter is ordered to be compounded.
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2023 (11) TMI 1066 - PUNJAB & HARYANA HIGH COURT
Dishonour of Cheque - Oreder of conviction and sentence of accused - insufficient funds - seizure of account - payment stopped by Court order - payment stopped by drawer - evidence led by the petitioner-accused regarding the reason behind the dishonour of cheque or not - rebuttal of presumption - seeking dismissal of all the revision petitions - HELD THAT:- It is in the light of the legal position that it is required to be seen that whether accused has been able to probabilise his defence. Here itself, it may be noted that the accused is not required to prove his defence on the standard of proof ‘beyond reasonable doubt’ and rather, he is simply required to probabilise his defence. The presumption under Section 139 of the Act can be rebutted even by evidence led by the complainant; and it is not required for the defence to lead evidence to rebut presumption, as has been held in PAWAN KUMAR VERSUS SUNIL KUMAR [2016 (9) TMI 1663 - PUNJAB AND HARYANA HIGH COURT] by this court and also by the Hon’ble Supreme Court in SHIV KUMAR VERSUS RAMAVTAR AGARWAL [2020 (2) TMI 1584 - SUPREME COURT].
Contention of ld. counsel for the petitioner is that in the present case also, the cheques in question had been given to the complainant in January/February 2015 as per his Statement. The cheques were payable during June to September 2015, but before the cheques became payable, the account of the petitioner was seized on 10.03.2015 as per Ex.CW2/3. As per the contention, petitioner was left with no control over his bank account either to deposit the funds or to make arrangement with the bank by entering into any agreement with the Bank and that act of attachment of the bank account was not the voluntary act on the part of the petitioner and so, he cannot be held liable - Neither at the time of handing over the cheques nor at the time of seizure nor at the time when the payments became due under the cheque, the petitioner had the sufficient amount in his account. It is not the defence of the petitioner that he wanted to make arrangement with his bank so as to honour the cheques.
Thus, it is held that simply because drawer of the cheque is unable to pay the cheque amount, due to the fact that account stood freezed cannot be the reason to exonerate the liability of the accused-petitioner.
In present case, as per trial court record, the accused was produced in the Court of ld. JMIC, Gurgaon for the first time on 23.12.2015 pursuant to the production warrants issued for him. There is nothing on record to suggest that at any point of time, petitioner-accused ever pleaded before the Court that though he had not received the legal notice, but he was ready to make payment of the cheque amount or that he be allowed to make necessary arrangement with the Bank so as to make payment of the cheque amount. No attempt appears to have been made on the part of the accused to move appropriate application before the concerned Court for getting his account released. In fact, the seizure of the account by the Court in the criminal case came as a boon for the petitioner because he factually did not have any amount in his account at any point of time so as to honour the cheque and on account of seizure of the account, he got the excuse to plead before the Court that his account has been seized.
The last contention raised on behalf of the petitioner is that cheques had been misused as these were issued as a security cheque. The contention is again without any merit as it has been specifically testified by CW1 – complainant that all the particulars in the cheques were filled in by the accused himself. Even if it is presumed for the sake of arguments that cheques were issued as a security, the dishonour thereof will still attract Section 138 of the NI Act - In SHALINI ENTERPRISE AND ORS. VERSUS INDIABULLS FINANCIAL SERVICES LTD. [2012 (9) TMI 1213 - PUNJAB AND HARYANA HIGH COURT], similar plea of security cheque was taken. It was held by this Court held that the argument of the learned counsel for the petitioner that on dishonouring of a security cheque no offence punishable under section 138 of the Negotiable Instruments Act is made out.
This court finds no merit in any of these revisions. Same are dismissed.
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2023 (11) TMI 1023 - MADRAS HIGH COURT
Suit for recovery along with an interest at the rate of 12% per annum from the date of the suit till the date of the decree and thereafter, at the same rate till the date of its realisation - liable to pay the dues of Sheela Venugopal from the estate inherited by them - HELD THAT:- In the instant case, the court did not take up the risk of doing the job of comparative analysis of the disputed signature by itself. Instead they were sent to expert analysis and hence there is no harm in recording the finding of the expert as the first step. But accepting the findings of the expert is the second part of the exercise. Usually, there can not be any reason to disregard the opinion of the expert, unless there is any patent defect or irregularity is seen to be present in the analysis or established so by the defendants. The first defendant has opted to give a selective acceptance to the part of the report which states that the signature of the first defendant in Ex.P3 did not tally with his admitted signatures - the defendants did not establish anything adverse to the acceptance of the expert's report.
The promissory note does not contain any other particulars as to the rate of interest. So it has to be presumed that the loan transaction did not have any term as to interest. If the promissory note is a created one, nothing could have prevented the plaintiff from filling up the rate of interest and particulars of witnesses as per her whims - Since the executant of the promissory note is no more, the plaintiff can prove the genuineness of the promissory note only by proving the ancillary facts attached to it. As stated already, the first defendant did not deny their acquaintance with the plaintiff. As per the contention of the plaintiff, the loan amount has been given to Sheela Venugopal on several occasions and it was not an one-time payment. After the demise of Sheela Venugopal, the 1st defendant initiated some negotiations with the plaintiff and even according to the 1st defendant, it was some good intention of purchasing peace, but the plaintiff demanded huge sum and hence it did not fructify.
Even though the suit promissory note has been executed for Rs. 2.50 crores, from the legal notice sent by the plaintiff and her oral evidence, she has made it clear that the remaining due was only Rs. 2,18,50,000/-. In such case, the legal enforcement of the suit promissory note can be limited to a sum of Rs. 2,18,50,000/-. though Sheela Venugopal had executed the promissory note for Rs. 2.50 crores - the promissory note did not contain any terms for interest, and hence, the plaintiff is not entitled to claim any interest. In view of the above stated reasons, the plaintiff is entitled to get a decree for recovery of a sum of Rs. 2,18,50,000/-only, from the defendants as against the assets inherited by them from the deceased Sheela Venugopal. Hence, issue No. 5 is thus answered.
The suit is partly decreed with cost and the plaintiff is entitled to get a decree for recovery of a sum of Rs. 2,18,50,000/- only from the defendants to be payable from the assets of the deceased Sheela Venugopal and to that extent to which the defendants are jointly and severally liable to pay as inherited by them.
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2023 (11) TMI 881 - MADRAS HIGH COURT
Acquiring of assets disproportionate to known source of income - public servant - HELD THAT:- It is a settled preposition of law that in case of disproportionate assets acquired by the Public Servant, the initial burden is on the prosecution to prove objectively the property found in possession of the accused were disproportionate to his known sources of income.
After meticulous examination, this Court able to find that, if at all any benefit in error of assessment regarding the value of assets acquired during the check period to be given, it can only be to a tune of Rs. 1,99,260/- rounded off to Rs. 2 lakhs which is in respect of Architect fees and the value of household articles claimed to be received as gift. Even, if concession of Rs. 2 lakhs is given to the value of assets acquired during check period, the disproportionality will be reduced to only marginally and not to the extend to fall outside the scope of the offence under section 13(1)(e) of the P.C Act or Section 109 r/w 13(1)(e) of P.C Act.
Thus, it is evident that the deceased first accused being a Public Servant had acquired wealth above 400% of his known source of income. From undeclared source, the properties been acquired by the public servant (A1) in his name and in the name of his wife (A-2) also in the name of his minor children. A-2 have lend her name for purchasing the property through source undeclared. Therefore, the trial Court judgement of conviction dated 15/11/2000 is hereby confirmed.
The offence being acquiring wealth by a public servant beyond his known source of income and A-2 for aiding the public servant, had been sentenced for one year R.I being the minimum sentence prescribed under the law. So there cannot be further reduction of sentence. In such circumstances, the appellant/A2 has to be sentenced to undergo atleast the minimum sentence which is one year. Accordingly, the judgment of the trial Court in Special stands confirmed.
The trial Court is directed to secure the appellant/accused-2 and commit her to the prison to undergo the remaining period of sentence. Any period of imprisonment if already undergone by the accused shall be set off under Section 428 of Cr.P.C. - Appeal dismissed.
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2023 (11) TMI 880 - MADHYA PRADESH HIGH COURT
Dishonour of Cheque - conviction of appellant - Seeking acquittal from the charge under Section 138 of N.I. Act - HELD THAT:- From perusal of the record, it reveals that the statement of the complainant Jagdish Gupta (PW-1) is well supported by the cheque (Ex.P-1), notice (Ex.P-2 and P-3), postal receipt (Ex.P-4), letter (Ex.P-5). Applicant did not examined any witness before the trial Court and he did not reply the notice (Ex.P-2 and P-3), therefore, there is no reason to disbelieve the statement of Jagdish Gupta (PW-1) and the documentary evidence available on record, therefore, on the basis of the aforesaid evidence, the trial Court has rightly held that the applicant has committed offence under Section 138 of N.I. Act.
On perusal of the record, the submission of the learned counsel for the applicant appears to be just and proper. Hence, finding force in the contention raised by the learned counsel for the applicant and the fact that the applicant is facing trial since 2014 i.e. for a period of almost 09 years and has already undergone two months jail incarceration, this Court finds it appropriate to partly allow this revision petition by affirming the conviction of the applicant, however, reducing his jail sentence to the period already undergone.
This revision petition is partly allowed by maintaining the conviction, but reducing the jail sentence to the period already undergone by the applicant. Since the applicant is already on bail, his bail and surety bonds stand discharged.
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